UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY :^ flj THE "~ LAW OF CONTRACTS. BY JOHN WILLIAM SMITH, Esq., LATE OF THE INNER TEMPLE,"bARKISTER-A T-LAW, ATTTHOB OF "LEADING CASES," "A TREATISE ON MERCANTILE LAW," ETC. ^fuenfh gimerican, FROM THE EIGHTH LONDON EDITION. VINCENT T. THOMPSON, Esq., M. A., OF LINCOLN'S INN, AND OF THE NORTH-EASTERN CIRCUIT, BARKISTEE-AT-LAW ASSISTANT RECORDER OF LEEDS. WITH NOTES AND REFERENCES TO BOTH ENGLISH AND AMERICAN DECISIONS, BT WILLIAM HENRY RAWLE AND GEORGE SHARSWOOD, LL. D. AND WITH ADDITIONAL NOTES AND REFERENCES TO RECENT AMERICAN CASES, By JOHN DOUGLASS BROWN, Jr. PHILADELPHIA: T. & J. W. JOHNSON & CO., 535 Chestnut Street, 1885. 0^7. f ^ w 7 Entered aoeording to the Act of Congress, in the year 1885| BY T. A J. W. JOHNSON A CO. kB the Office of the Librarian of Congress, at Washington. i, k-H~!>*\ PREFACE TO THE SEVENTH AMERICAN EDITION. rriHE text of this edition is that of the last (eighth) English edition. The elaborate annotations of his distinguished predecessors (which have been, with very slight exceptions, retained) have made it unnecessary for tlie present American editor to add much distinct- ively new matter, and his work has been mainly the rearrangement of this material, and the citation of later authorities. The notes of Mr. Eawle and Judge Sharswood have been indicated by the letters R. and S. respectively. Where it seemed proper to distinguish new matter inserted in these notes, it hjis been enclosed in brackets. The citations throughout the American notes have been carefully verified by A. H. Wintersteen, Esq., of the Philadelphia Bar. J. D. B. Jr. Philadelphia, May 1st, 1885. lU PREFACE TO THE EIGHTH ENGLISH EDITION. TN bringing this Edition of Smith's Lectures on the Law of Contracts up to the existing state of the law, the present Editor has endeavoured as before to make his own additions as short as possible, confining them to cases of real importance and to such alterations as were rendered necessary by recent legislation. The Editor trusts that the present Edition will be found no less acceptable than its predecessors. It may be interesting to add that, as appears from the preface to the First Edition, these lectures were delivered at the Law Institute in 1842; at which time the Author was thirty-three years old {vide the interest- ing memoir of the late John William Smith, by the late Samuel Warren, Esq., Q.C., which originally appeared in Blackwood, vol. 61, and which has since been included in the edition of Mr. Warren's Works). The First Edition was brought out in 1846, after the V Vi PREFACE. Author's death, by Mr. Jelinger C. Symons. The subsequent editions up to the sixth were by the late Mr. J. G. Malcohn, formerly Master of the Crown Office. For the Sixth and subsequent Editions the present editor is responsible. V. T. T. Pease's Buildings, South Parade, Lkeds, i)ec-18S4 CONTENTS. [the figures refer to the MARGlNAIi PAGES.] LECTURE I. PAOV ON THE NATURE AND CLASSIFICATION OF CONTRACTS, AND ON CON- TRACTS BY DEED, . 1. LECTURE D. THE NATURE OF SIMPLE CONTRACTS; — OP WRITTEN CONTRACTS. — PATENT AND LATENT AMBIGUITIES. — WHERE WRITING MAY BE QUALIFIED BY EVIDENCE OF USAGE. — THE STATUTE OF FRAUDS, . 40 LECTURE IIL THE FOURTH SECTION OF THE STATUTE OF FRAUDS. — PROMISES BY EXECUTORS AND ADMINISTRATORS. — GUARANTIES. — MARRIAGE CON- TRACTS. — CONTRACTS FOR THE SALE OF LANDS. — AGREEMENTS NOT TO BE PERFORMED IN A YEAR, 102 LECTURE IV. SALE OF GOODS, ETC., UNDER THE SEVENTEENTH SECTION OF THE STATUTE OP FRAUDS. — OTHER CONTRACTS WHERE WRITING IS OB HAS BEEN NECESSARY. — POINTS APPLYING TO ALL SIMPLE CON- TRACTS. — ASSENT. — OFFER AND ACCEPTANCE. — CONSIDERATION OF CONTRACTS BY DEED AND OF SIMPLE CONTRACTS, 141 LECTURE V. CONSIDERATION OP SIMPLE CONTRACTS. — EXECUTED CONSIDERATIONS.— WHERE EXPRESS REQUESTS AND PROMISES ARE OP AVAIL. — MORAL CONSIDERATIONS. — ILLEGAL CONTRACTS. — RESTRAINTS OP TRADE, 183 vii Vm CONTENTS. LECTUKE VI. FAOa ILLKOAL CONTRACTS. — FRAtTD, — GAMING AND HORSE-RACING. — WAGERS, 231 LECTURE VII. THE lord's day ACT. — SIMONY. — ILLEGAL WEIGHTS AND MEASTIRES. — CONTRACTS BY ILLEGAL COMPANIES. — ASSIGNMENT OF CONTRACTS. — BILLS OF EXCHANGE FOR ILLEGAL CONSIDERATION. — RECOVERY OF MONEY PAID ON ILLEGAL CONTRACTS, 277 LECTURE VIII. FARTIES TO CONTRACTS. — INFANTS. — MARRIED WOMEN, 307 LECTURE IX. PARTIES TO CONTRACTS. — INSANE PERSONS. — INTOXICATED PERSONa — ALIENS. — CONVICTS. — CORPORATIONS. — PUBLIC COMPANIES. — THE MODE IN WHICH COMPETENT PERSONS CONTRACT. — AGENTS. — PARTNERS 356 LECTURE X. PRINCIPAL AND AGENT. — THEIR RESPECTIVE LIABILITIES. — AGENCY OF PARTNERS, BROKERS, FACTORS, WIVES. — RECAPITTTLATION. — REMEDIES BY ACTION. — STATUTES OF LIMITATION. — CONSTRUCTION OP CONTRACTS, 434 TABLE OF CASES. [the figures befer to the marginal pages.] A. PAGE Abel V. Sutton, 462 Ahrey v. Crux, 44 Adams v. Eankart, 456 r. Clutterbuck, 365 V. Dansey, • 107 V. I.indsell, 163 V. AVordley, 44 Addison v. Gandasequi, .... 443 Alcenius v. Nygrin, .... 239, 367 Alchin V. Hopkins, 291 Alderson v. Maddison, . . . 101, 131 Alexander v .Sizer, 401 Alliance Bank of .Simla v. Casey, 306 Allsopp v. Wheatcroft, 221 .'Vmbrose v. Harrison, ..... 495 Anderson v KadcIiHe, 238 Anon. (Godb.), 431 (Show.), 419 Ansell (' i;aker, 30 Applegarth v. Colley, 264 Archer v. Bavnes, 147 V. Marsh, 180, 227 Arkwriglit v. Cantrell, 235 Armstrong v Stokes, 445, 446, 450, 451 Arnold c. Mayor of Poole, . . . 370 Ashburv Railwav Carriage and Iron Co. r. Riche, ..."... 398 Ashby V. .James, 533 Aslicroft r. .Morrin, 150 Ashmole r. Wainwright, .... 236 Ashpitel V. Bryan, -28 Ashwortli V. Gutram, . . . 338, 348 Athenreura Life Assurance Co., in re, 415 Atkins?). Ban well, . . . .201,203 Atkinson v. Bayntun, 184 V. Denln-, 303 Atkyns v. Kinnier, .... • . 222 Atlee V. Backhouse, 186 Attenborougli v. St. Katharine's Dock Co , 249 Att.-Gen. v. Gaskill, 381 V. Great Eastern Railway Co., 398 Attwood V. Chichester, 351 PAGB Australasia, Bank of, r. Breillat, 394 Australian Royal Mail Steam Navigation Company v. Mar- zetti, 377 Aveline v. Whisson, 6 Averv v. Langford, 223 AyliJtt"r. Arclidale, 322 B. Babcock v. Lawson, . • .... 249 Bag-shaw v. Bosley, 288 Baliia, etc., Rail. Co., in re, . . . 28 Bailey v. Sweeting, .... 143, 151 Bainbridge v. Firmstone, . . 178, 189 Baines v. Ewing, 429 V. Swainson, 474 Baker v. Rogers, 283 V. Townsend, 234 V. Walker, 186 V. White, 228 Bamfield i'. Tupper, 530 Banner v. Iterridge, 524 er parte, in re Elythe, . .186 Barber in re, Dardier v. Chapman, 348 Barden v. Keverberg, 342 Barker c. Allan, 86 V. St. Quintin, 5 Barkworth v. Young, 122 ex parte, re Harrison, . 468 Barley v. Walford, 244 Barnes v. Pennell, lb. V. Toye, 315 Bartlett v. N'iner, 18, 251 V. WelLs, 324 Barton t\ Fitzgerald, 561 Batard v. Hawes, 193, 198 Bateman v. Mid- Wales Rail. Co., 374 V. Finder, . . 522, 529, 531 Batson v. King, 107 I'. Newman, 267 Battersby v. Kirk, 516 Battley v. Faulkner, 514 V. Lewis, 460 Batty V. Marriott, 272 ix TABLE OF CASES. PAGE Baumann v. James, 88 Baxter r. Brown, 142 V. Nnrse, 71 V. Earl of Portsmouth, . 358 Bavlev v. Wilkins, ... 60, 193, 426 Bayliiie v. Butterworth, 60, 193, 425 Bazelcv )'. Forder, 498 Beal r." South Devon Kail. Co., . 191 Beale v. Mouls, 4G0 Beard v. Webb, 342 Beaucharnp v. Powley, 191 Beaumont ('. Eeeve, . . . .203,211 Beavun v. M'Donnell, 361 Becklbrd v. Crutwell, 542 Beckham v. Drake, . . 40, 453, 461 V. Knight, 459 Beer v. Foakes, 168 Beeston r. Beeston, . . 260, 267, 270 Begbie v. Phosphate Sewage Co., 300, 306 Belford Union v. Pattison, . . . 468 Belknap's (Lady) case, 341 Bell V. iStocker, 333 Belshaw v. Bush, 186 Belton V. Hodges, 324 Bendix v. Wakeman, 345 Bendry r. Price, 291 Bennett v. Brumfitt, 96 Benson v. I'aul, 502 Bentinck v. Connop, 264 Benwell v. Inns, 218 Besant v. Cross, 44 V. Wood, 229 Betts V. Kimpton, 329 Beverley v. Lincoln Gas Light Co., 374 Beyer r. Adams, 270 Biddlecombe v. Bond, 563 Bidmead v. Gale, 264 BitHn V. Bignell, 493 Bill V. Bament, 97 Birch V. J>iverpool, Earl of, . . 137 Bird f. Boulter, 146,411 V. Gammon, 107 Birkenhead Railway Co. r.Pilcher, 321 Birkmyr v. Darnell, 106 Bishop V. Elliott, 279 Blackett v. R. E. Insurance Co., 68, 69 Blagden r. Bradbear, 81 Blair V. Bromley, 538 Blake's case, 31 Black more v. Bristol and Exeter Railway, 190 Blaxton ('. Pye, 261 Boaler v. Mayor, 30 Bolton V. Prentice, 492 Bond V. Bell, 260 V. Pittard, 454 Bonfield v. Smith, 458 Bonnewell v. Jenkins, 158 PAGl Bosanquet v. Shortridge, 385, 38C, 388 Boulton V. Jones, 201 Botcherby v. Lancaster, .... 7 Bourdin v. Greenwood, 521 Bourne v. Gatlift; 542 Bowes V. Foster, 21 Bowker v. Burdekin, 12 Bowlby V. Bell 132, 387 Bowman v. Taylor, 21 Bowry v. Bennett, 21 1 Boydell v. Drummond, 90 Bracegirdle v. Heald, 135 Bradlaugh v. Newdegate, .... 237 Bradley v. Holdsworth, .... 142 Bradshaw v. Beard, 495 Brady v. Todd, 414 Kramali v. Roberts, 392 Brandon v. Nesbitt, 367 V. Old, 363 Brashford v. Buckingham, . . . 344 Brett V. Beckwith, 459 Brettel v. Williams, 456 Brewer v. Sparrow, 431 Brice v. Bannister, 295 P.ridges ?'. Fisher, 211 Briggs V. Merchant Traders' Ship- ping Assurance Association, . 275 Britain v. Rossiter, 97,99,100,135, 139 British and American Telegrapli Co. V. Colson, 164 British Empire Shipping Co. v. James, 201 British Farmers' Pure Linseed Cake Co., in re, 28 British Linen Co. v. Drummond, 367 Broad t'. JoUyfie, 216 Brogden v. Marriott, 261 Brooker v. Scott, 313 Broughton v. Manchester and Sal- ford Waterworks Co., .... 374 Brown v. Ackroyd, 498 V. Byrne, 63 r. Ciump 207 V. Jodrell, 359, 360 V. Langley, 44 V. Mayor of London, . . 259 V. Rutherford, in re Ruth- erford, 530 Browning v. Morris, 300 nStallard, 112 Brydges v. Lewis, 31 Brvson v. Whitehead, 224 Buck V. Robson 295 I5uckley ex parte, in re Clarke, . 464 Buckmaster v. Russell, 527 Bullock V. Dodds, 368 Bunn V. Guy, 173, 217, 222 TABLE OF CASES. XI PAGE Burchell v. Clark 49 Burgess v. Wickham, 51 Burghart «. Hall, 314 Burkinshaw v. NicoUs, 28 Burlinson y. Hall,_ 295 Burmester v. Norris, 394 Burn V. Boulton, 533 Burrowes v. Gore, 512 Burrows, re, ex parte Taylor, . . 320 Bursill V. Tanner, 354 Bush V. Martin. 524 Butcher y. Steuart, ..... 109 Buttemere t'. Hayes, 130 Buxton V. Kust, 151 Bwlch y Plvvmhead Mining Co. V. Baynes, 244 Byrne v. Van Tienhoven, • . . 164 C. Cadaval, Duke de, v. Collins, . . 236 Calder v. Dohell, 441 Callislier v. Bischolfsheim, . 186, 188 Calvin's ease 367 Campbell r. Hooper, . . .360,361 Capper, ex parte, re Direct Bir- mingham Kail. Co., 163 Carpenter v. Buller, 21, -'3 Carr v. HinchlifF, 437 t'. London and North West- ern Rail Co., 28 Carrington v. Roots, . . 97, 123, 126 Carter v Boehra, 273 V. Lsirter, 22, 23 Catling V. King, Ho Caton V. Caton, 95 Catt V. Tourle, 217 Catterall v. Hindle, : 468 Cave V. Hastings 88, 92 Cawthorn v. Cordrey, 135 Central Rail. Co. of Venezuela v. Kisch, 244 Champion v. Plunimer, 149 Channel v. Ditchburn, 330 Chaplin v. C larke, 163 Chapman v. Biggs, 352 Chappie V. Cooper, 315 Chasvmore v. Turner, 525 Cherry v. Heming, 6, 1;>8 Chesman v. Nainby, .... 216, 21 , Christotiersen v. Hansen, .... 453 Church 0. Imperial Gas Light Co., 373,374 Clarke v. Cuckfield Union, • . .374 V. Dickson, 248 t'. Powell, . . . . • . . 46() V. Roystone, 57 in re, ex parte Buckley, . . 464 PAQB Clay v. Yates, 211 Clayton v. Gregson, 65, 7 1 V. Lord Nugent, .... 49 Cleave v. Jones, 537 Clenan v. Cooke, 81 Cliflbrd V. Burton, 485 V. Laton, 494 Clutterbuck r. Coffin, 167 Coates V. Wilson, ...... 313 Cobb V. Becke, 406 Cockerel 1 v. Aucompte, 429 Cockerill v. Sparke, 524 Cocking t;. Ward, 98,130 Cockran v. Islam, 406 Cocks V. Nash, 31 V. Purday, 366 Coggs V. Bernard, 189 Colborne v. Stockdale, 19 Cole V. North Western Bank 470, 472, 474, 483 Colebrook v. Layton, 29 1 Coleman v. Riches, 428 Coles I'. Bui man, 200 V. Hulme, 563 V. Strick 24** Collins' V. Blantern,' 18, 208, 231, 300 V. Locke, 17, 225 Collinson v. Margesson, .... 529 Collis ('. Stack, 521 Combe's case, 406 Conolan r. Leyland, 354 Cooch V. Goodman, 6, 14 Cook V, Field, 274, 275 V. Wright, 173, 187 Cooke I'. Clavworth, 364 V. Oxley, . . 158, 159, 160, 164 V. Seelev, 435 V. Wilson, 442 Coombs V. Dibble, 272 Cooper V. Smith, 151 Cope ('. Albinson, 156 V. Rowlands, IS, 19, 251, 252, 253, 255, 466 Copper Miners of England (Gov- ernor and Co. of) v. Fox, . 37S, 379 Coppock V. Bower, .... 18, 235 Cork V. Baker, 121 Cornforth v. Smithard, 521 Cornill v. Hudson, 515 Corpe r. Overton, 320, 322 Cory r. Cory, 364 Cottam V. Partridge, ...... 537 Couturier v. Hastie, 113 Coventry v. Great Eastern Rail. Co., 28 Cowan V. Milbourn, L'll Cowiei' Remfry, 161 Cox V. Hickman, 454, 455 Coxhead v. MuUis, .325 xu TABLE OF CASES. PAGE Craiifiirtl v. Hunter, 275 Cripps V. Davis, . . . 522, 524, 529 V. Hartnoll, 108 Crasljy v. Wadsworth, 97, 123, 124, 12{; Cross r. E.s;lin, 70 Ciiddee r. Hutter, 500 Cullei) r. r.ntler, 558,500 Cumininjj; v. Hooper, 236 Cuniiiiins r. ( umiuins, S4 Cunanl v. llvde, 250 Cundell V. Dawson, . . 18, 251, 252 Cundy v. Lindsay, 157 Curlewis ?■. Earl of Mornington, 517 Curtis ('. Williamson, 441 Cuthbcrt V. Cummings, .... 07 D. Daintree v. Hutchinson, .... 265 Dalby v. India and London Life Assurance Co., 275 Dalton V. Midland Counties Rail- way, • • . 344 Dancer r. Hastings, 23 Dane v. Kirkwall, 359 D'Arcy V. Tamar, &c., Rail. Co., 389 Dardier r. Cliapman, tn re Barber, 348 Dartnall ?'. Howard, 191 Dashwood ('. Jermya, 167 Davey v. Shannon, 1 37 Davidson r. AV'ood, 496 Davies v. Hopkins, 406 V. London and Provincial Marine Ins. Co., 233 Davis V. Holding, 240 V. Mason, .... 219,220,222 Davison v. Donaldson, 452 Day ?'. Padrone, 344 Deacon v. Gridley, 203 Dean and Cliapter of Femes, case of, . . _ 6 De Begnis v. Armistead, .... 19 Delx>nhani v. Mellon, 491 De Bussdie r. Ait 407 De Greuehy v. Wills, . . . 333, 366 De la Vega v. Vianna, 367 Deiliasse, ex parte; in re Mege- vand, 455 De Mantort v. Saunders, .... 457 De Boo V. Foster, 324 Dendy r. Henderson, . . . 217 Derby (anal Co. v. Wilniot, . . 6 Deslandes r. (iresory, 446 De\aux r. Steinkeller, . . . 118,119 De Wahl r. Braune, .... 342, 367 Dickenson v. Valpy, 390/ 393, 395, 454, 402 PAGE Diggle r. Higgs, 270, 272 Dilic V. Keighley, 320 Dimes v. Grand Junction Canal Co., 235 Dingley r. Robinson, 330 Direct Birmingham Railway Co., re, ex ;x/rte Capper, 163 Ditcham v Worrall, .... 325, 326 Dixon, ex /xirte, in re Henlev, . . 439 f. Holdroyd, . . .". . .512 Dobell V. Hutchinson, 88 Dobson V. Collis, 137 Dodd V. Burchall, 49 Doe (/. Allen v. Allen, 50 d. Bywater v. Brandling, . . 556 d. Christmas v. Oliver, . . 28 d. Gains v. Rouse, 50 d. Garnons v. Knight, ... 7 d. Hiscocks v. Hiscocks, . 50, 539 d. Lloyd V. Bennett, .... 7 d. Muston V. Gladwin, ... 31 d. Richards v. Lewis, ... 7 Doggett V. Catterms, 271 Dolling t'. Evans, 81 Dolman v. Orchard, 460 Donellan v. Reed, 138 Doorman v. Jenkin.s, 191 Dormer (Lord) v. Knight, . . . 562 Doughty V. Bowman, . . . . • 554 Dowling V. Ford 532 Dowthwaite v. Tibbut, 523 Dresser r. Norwood, 438 Drew V. Nunn, .... 360, 432, 496 Driver v. Burton, 1 99 Drury v. De Fontaine, 280 Duignan v. \\'alker, 225 Duke V. Andrews, 163 Duchess of Kingston's case, . . 27 Dunlop I'. Iliggins, 164 Dunston v. Imperial Gas Light Co., 413 Duppa V. Mayo, 125, 127 Durrant v. Ricketts, 351 Durrell r. Evans, 146 Dutton V. Marsh, 401 E. Eastern Counties Rail. Co. v. Hawkes, 398 Earler. Peale, 321 V. Ho))wood, 237 Eastland I'. Burcliell, 494 Eastwood V. Kenyon, 113,169, 196, 203 Eaton V. Basker, 381 F^den v. Blake, 72 Edge V. Straflbrd, 132 TABLE OF CASES. XUl PAGE Edmunds v. Busliell, 410 Edwards v. Baugh, 187 V. Towells, 495 Egerton v. Browniow, . . . 241, 242 V. Matthews, . . . 148, 150 Elbinger Actien Gesellschaft v. Claye, 445 Elderton v. Emmens, . ... 200 Elliott V. Richardson, 241 Eimore v. Kingscote, ... 81, 149 Elsee V. Gat ward, 191 Elves ('. Crofts, 217, 223 Emmerson J'. Jleelis, 413 Emmet v. Dewhirst, 48 England v. Marsden, 198 Esposito V. Bowden, .... 239, 307 Etherington v. Parrott, 486 Evaus V. lirown, 34 V. Edmonds, 244 V. Jones, 200 V. Pratt, 67, 204 V. Roberts, . . -123, 125, 127 Everett v. Robertson, 520 Ewers V. Hutton, 495 Exail V. Partridge, 198 Fairlie v. Fenton, 465 Fallowes I'. Taylor, .... 14, 234 Falmouth (Lord) v. Thomas, . . 1 JO Fannin v. Anderson, .... 516,517 Farebrotlier v. Simmons, . . 146, 410 Farley v. Briant, 33 Farrar i;. Deliinne, 462 V. Hutcliinson, 21 Faulder r. Silk, 357 Fear v. Castle, 333 Fearnside c. Flint, . . 38, 478, 509 Felthouse c Bindley, 153 Fenn r. Harrison, 414 Fennell v: Rid'er, 280 Fenton v. Emblers, 135 v. Iloliowav, 364 Feret r. Hill, . . ' 211 Fernley r. Branson, 23() Fergusson v. Norman, 253 Femes, Dean and Chapter of, case of, 6 Ffytche v. Bishop of London, . . 287 Field '. Lelean, 68 Findon r. Parker, 237 Fish V. Kem|)ton, 438 Fisher )'. Fallows, 193 V. Marsh, 452, 453 Fishmongers' Co. v. Robertson, . 373 Fitch V. Sutton, 21 Fitzgerald v. Fitzgerald, .... 329 PAGE Fitzgerald v. Dressier, 109 Fitzmaurice v. Bagley, 81 Fivaz V. Nicholls,\ . . .232,306 Fleet I'. Murton, 4-:>2, 465 V. Perrins, 348 Flemyng v. Hector, 429 Fletcher v. Fletcher, 7 V. Lord Sondes, 288, 289, 290 ex parte, re Saloon Steam Packet Co., .158 Flight V. Reed, 203 V. Salter, 291 P'lindt V. Waters, 3o7 Florv V. Denny, 3R Flower v. Sadler, 232 Ford V. Yates, 45 Fordham v. Wallis, 530 Fores v. Johnes, 209 Forster v. Rowland, 153 V. Taylor, 254 Forsyth r. Bristowe, 512 Forth V. Stanton, . . . 103, 100, 112 Foster v. Bates, 431 V. Jolly, 44 Fox V. Bishop of Cliester, . . . 285 V. Clifton, .... 386, 454, 455 Francis v. Hawkesley, 527 Franks, -cr pa 'Z*", 341 Fraser v. Pendlebury, ... 23, 304 Free I'. Hawkins, 44 Freeman v. Bosher, 431 V. Cooke, 27 Fricker i>. Tomlinson, 97 Froset v. Walsh 12 Fuentes v. .Montis, . 474, 475, 479, 483 Furness v. Meek, 10 G. Gale V. Reed 217 Gardner v. M'Mahon, 529 Garforth v. Bradley, 347 Gaskell r. King, 20 Gaters v. Madeley, .... 331, 345 Geary v. Physic, 96 (ieneral Finance, Mortgage, and Discount Co. v. Liberator Per- manent Benefit Building Soc , 22 George v. Clagett, .... 430, 439 Gerhard v. Hates, 244 German Milling Co., in re, . . . 395 Gibbons v. Rule, 4()6 Gibbs I'. Guild, 539 V. Harding, 229 Gibson v. East India Co., .... 377 V. Holland, 88 V. V. inter, 440 Girardy v. Richardson, 211 XIV TABLE OF CASES. Giraud v. Richmond, GladwoU V. Steggall, (rlaliolm I'. Hays, • Glover v. llackett, Goate t'. Goate, . . (loddard's case, . . Goddard v. Ingram, Godsall V. Boldero, Godwin v. Cully, . V. Francis, Goldham v. Edwards, Goldshede v. Swan, Goodall V. Lowndes, Goodburn v. Marley, Good V. Elliott, . (Joode V. Harrison, Goodman v. Chase, Goodman v. Griffiths, Goodriglit v. Strapham, Goora V. Aflalo, . . . Gore V. Gibson, . . . Goss V. Lord Nugent, Grceme v. Wroughton, Graham v. Fretwell, . V. Graham, . V. Musson, . Granger v. Collins, Grant v. Grant, . . . V. Norway, . . V. Maddox, . . Graves v. Key, . . . V. Legg, ... Greaves v. Ashlin, Green v. Cresswell, . V. Humphreys, (,'. I'rice, . . . Greene r. ( optree, . . Gregory v. I* raser, . . Grey i\ Pearson, . . Grizcwood v. Hlane, . (irifllth ('. Young, . . (irindell v. (xodmond, (-jrissell v. Robinson, . ?' liristowe, . Gudgen v Hesset, . . Gnnmakers' Co v. Fell Gunn, er parte, re Universal iiig Corpora, ion, Guyard v. iSutton, 4G, 13 > 189, 190 660 1,0 527 6 530 275 521 96 283 542 233 261 266 324 109,112 81, 149 . . 6 . .466 . . 364 47,151 . . 235 146,412 . . 11 146,412 206, 207 50, 53 . . 428 67,5-12 . . 21 . . 66 . . 44 108,112 . . 524 . . 180 441,446 . . 3(i3 . . 561 . . 267 . . 98 . . 496 . . 198 . . 60 . . 12 . . 214 Bank- 158 345 H. Hall V. Cazenove, , . 25 V Mavor of Swansea, . . . 373 V. Potter, 230 V. Smith, 464 Hallen v. Kiinder, 128 Hamilton r. Mills, 347 Hamnierfeley v. Baron de Biel, 88, 122 Hampden v. Walsh, . . 267, 269. 270 Hancocks v. Lablache, 3oi Hands v. Slaney, 313 Hardie v. Grant, 495 Hardman v. Booth, 157 Hargreaves v. Parsons, 114 Ilarman v. Reeve, 145, 150 Harms v. Parsons, 223 Harnor v. Groves, 45 Harrington v. Du Chatel, . . . 235 V. Victoria Graving Dock Co., . 209,212 Harris's Case, re Imperial Land Co. of Marseilles, 164 Harris v. Carter, 167 ?;. Goodwyn, ...... 31 Harris v. Watson, 167, 173 Harrison z'. Cage, 121 V. Cotgreave, 321 V. Fane, 310,312 V. Jackson, . . . . 37, 412 re, ex parte Barkworth, . 468 Hart V. Frontino, &c., Co., ... 28 V. Prendergast, . . 522 523, 528 V. Stephens, 329, 346 Hartley v. Ponsonby, . 167, 173, 174 Harvey v. Grabham, 151 V. Kay, 388 Hasleham v. Ycung, 456 Haslock V. Ferguson, . . : . .119 Hawes v. Armstrong, 80 Hawken v. Bourne, 31^5 Hawker v. Halliwell, 298 Hawkins v. Gathercole, .... 291 Hawtayn v. Bourne, 455 Hayton v. Irwin, 69 Hay ward v. Young, 222 Heiild V. Kenworthy, .441, 44C, 450 Heane v Rogers, 26 Heath v. Crealock, 22 V. Sanson, 460 Heather v. Webb, 204 Iledley v. IJainbridge, 463 Helps V. Clayton, 319 Henderson v. Australian Roy«.i Mail Steam Navigation Co., • 376 Hewitt V. Isham, 35 Hewlins I'. Shippam, lb. Hey I ing t'. Hastings, . . 5-25', 526 IleVworth ^^ Knight, . . . 16'/, 424 Hibblewhiter. M'Morine,5,6,3b/, 388 Hickman v. Cox, 454 Hicks V. Gregory, 203 Higgons?'. Burton, 157 Iligginson v. Simpson, 267 Ililliard, in re, 97 Hill V. Gray, . 244 Hill V- Manchester and Saiford Waterworks, 21 TABLE OF CASES. XV PAGE lUUs V. Mitson 240 Hilton V. Eckersley, 228 V. Woods 237 Hinde v. Whitehouse, 460 Hindley v. Marquis of Westmeath, 18, 228 Hitchcock V. Coker, . . ISO, 221, 227 Hitchin V. Groom, 542 Hoadly v. M'Laine, 149 Hoare v. Dawes, 454 V. Graliam, 44 Hodges V. Hodges, 492 Hodgkinson v. Fletcher, .... 493 Hodgson V. Anderson 112 Hodson V. Observer Life Assur- ance Societv, 276 Hodson V. Tefrill, 265 Hogg r. Snaith, 44 Holcroft V. Hoggins, 459 Holding t'. Elliott, 74 V. Piggott, 58 Holford V. Parker, 11 Holmes v. Bell, 30 V. Blogg, 320 V. Higgins, 385 V. Mackrell, 521 V. Smith, lb. V. Williamson, 193 Holt V. Ward, 327 Homer v. Ashford, 214 Hood V. Lord Barrington, ... 84 Hopkins v. Logan, 206 V. Prescott, 235 Horner i\ Graves, . . . 17,216,218 Horn V. Ivy, . . . . • .... 373 Horsey i'. Graham, 129 Horton V. Riley, 304 Hotson V. Browne, 45 Hough V. Manzanos, 453 Houliston r. Smyth, 492 Household Fire Insurance Co. v. Grant, 164 How V- Synge, 20 Howard v. Oakes, 331 V. Sheward, 428 Howbeach Coal Co. v. Teague, . 389 Howcutt V. Bonser, 511 Howdon V. Haigh, 20 Howson V. Hancock, 300 Hubbersty v. Ward, 428 Hnber r. Steiner, . 366 Hubert v. Treherne 95 Hudson V. Clementson, 65 Hughes V. Paramore, 526 Hulse V. Hulse, 197 Humble V. Mitchell 142, 387 Hnnifrey r. Dale, 465, 466 Humphreys v. Green, 131 V. Jones, 528 PAGE Humphries v. Carvalho, . . . .159 V. Smith, . . • . . 240 Hunt V. Bate, 195 V. De Blaquiere, . . . 487, 4i)5 V. Hort, 49 V. Wimbledon Local Board, 380 Hunter v. Gibbons, 538 Hunting v. Sheldrake, .... 33 Hurst I'. Parker, 522 Hussey v. Crickett, ..••.. 266 Hutcheson v. Eaton, 465 Hutchinson v. Tatham, . . 452, 465 Hutchison v. Bowker, . 71, 147, 154 Hutiey r. liutley, 238 Hutton y. Bullock, 445 V. Parker, 17, 226 V. Warren, 56 Hyde v. Johnson, 406, 529 Imperial Gas Company t. Lon- don Gas Company, . . . . 538 Imperial Land (Jo. of Marseilles, ?•«, Harris's case, 164 Imperial Land Co. of Marseilles, re, Wall's case, lb. Ingledew v. Douglas, 321 Inglis V. Haigh, 537 Inman r. Stamp, 128,134 Irvine v. Watson, 452 Isberg V. Bowden, 436, 439 J. Jackson v. Cobbin, 207 V. Lowe, 86, 147 V. Woolley, 530 Jacques v. Golightly, 301 V. Withy, lb. Jakeman r. Cook, 201 Jarvis r. Wilkins, 80 Jeakes v. White, 130 Jee V. Thurlow, 229 Jeffery v. Walton, 73, 74 Jeffreys v. Gurr, 193 Jefferson v. Morton, 33 Jelliott V. Broad, 216 Jenkins v. Reynolds, 77 Jenkyns v. Usborne, .... 474, 480 Jenner v. Morris, 496 Jennings v. Brown, 203 V. Hammond, 293 V. Throgmorton, . . .211 Johnes v. Lawrence, 286 Johnson v. Baker, • . 9 V. Credit Lyonnais Co., 475, 477, 479, 4S0 XVI TABLE OF CASES. PAGE Johnson v. Dodgson, 95 V. Luciis, 344 V. Raylton, 66 V. iSuiiiner, 493 V. R. M. Steam Packet Company, 198, 236 Johnston v. Usborne, 66 Jolitte V. Baker, 246, 247 Jolly V. Arbutlinot, 23 V. Kees, 486, 491, 493 Jones, ex parte, in re Jones, . . . 324 V. Cuthber:son, 348 V. Flint, 125, 127 V. Bees, 228 V. Littleaale, 63, 70 V. Kicholson 558 V. Orcluird, 199 V. Randall, 266 V. Victoria Graving Dock Co, 97 V. Waite, 18, 229 fordan v. Norton, . 147, 153, 158, 417 Jortin V. South Eastern Rail. Co., 512 K. Kaye v. Button, 203 Keates v. Lord Cadogan, .... 244 Keir v. Leeman, 233, 234 Kelly ?'. Webster, 130 Kemble v. Atkins, 465, 466 Kensington v Inglis, 239 Kibble, er parte, in re Onslow, . . 152 King V. Inhabitants of Gravesend, 252 V. Iloare, 519 V. Lucas, 352 Kingsford v. Merry, 474 Kirk V. Bell, 385 Kirkhara r. Martyr, 113 Knight r. Barber, 142 V. Bowyer, 238 Know! man v. Bluett, 136 Knox r. Crye, 537 Kymer v. Suwercropp, . . . 441, 447 Lafond v. Raddock, 615 Lainson ?'. Tremere, 22 Lake v. Duke of Argyll, .... 462 Lakeman v. Mountstephen, . . .111 Lampleigh v. Brathwaite, . . .196 Lane v. Bennett, 516 V. Ironmonger, .... 484, 489 Lang V. Gale, 541 PAOl Lant V. Morris, 550 Lavery ?'. Tnrley, 98 Law J). Wilkin, 200 Laycock v. Pickles, 131 Laythoarpr. Bryant, . .96,97,143 Leaper v. Tatton, 523 Leather Cloth Co. v. Lorsont, 223, 224 Lee V. Gaskell, 128, 142 V. Griffin, 145 V. Jones, 246 V. Lancashire and Yorkshire Rail. Co 21 V. M uggeridge, . . . .169, 203 V. Wilmot, 525 Leeds Hanking Co., re, 156 Mallorie's case, 158 Leidman r. Schultz, 65 Leighton v. Wales, ...... 180 l.ennard D. Robinson, 446 Leroux v. Brown, . 97, 131, 135, 366 Lester r. Fox croft, 101 Le Veux v. Berkeley, 517 Levy V. Raker, 360 V. Pyne, 463 V. Yates, 19 Lewis V. Brass, 158 V. Kensington, Lord, ... 95 V. Lee, 340 r. Marshall, 69, 71 V. Read, 431 Ley V. Peter, 406 Lickbarrow v. Ma.son, . . . 481, 482 Lindsay r. Cundy, . . . 158, 157, 248 Lindus v. Melrose, . 401 V. Bradwell, ...... 409 Linnegar v. Hodd, 200 Lister, in re, ex parte Pyke, . . . 270 Liverpool, Corporation of, v. Wright, 236 Llewellyn v. Llewellyn, . . 187, 188 Lloyd V. Guibert, . " 427 Lobb V Stanley, 95 Lockett r. Nicklin, 73 London, Bishop of, v. Ffytche, . 289 London and North Western Rail. Co.v M 'Michael, ._ 321 London Dock Co. v. Sinnott, . .379 Long?>. Millar, 88,92 Lotigridtie r. Dorvill, ..... 186 Lord V. Hall, 407, 409 Lovell V. Newton, . . . 338, 348, 354 Lowe V. Peers, 228 Lozano v. Janson, 558 Lubbock V. Potts, 300 Lucena v. Crawfurd, 27«') Ludlow (Mavor of) v. Charlton, 370, 372 Lyde ti Barnard, 120 Lynall v. Longbotham, .... 265 TABLE OF CASES. XVll M. PAGE Maber v. Miiber, 533 McCJance v. London and N. West- ern Rail., 25 ^rcL'onil)ie c. Davies, 472 Macdonald r. Longbottom, 54 IMHieorge i: Kifan, .... 484, 485 M'Intyre c. Belcher, 543 M'lver r. Ricliardson, 156 M'Kinnell v. Robinson, 18, 19,261,300 M'Maruiri ('. Bark, 167 [M'Neilage r. llolloway, .... 331 M'Xeili V. Reid 456 ]\Liddick I'. Marshall, 424 ^Liddison v. Alderson, 97, 101, 131, 141 iMagee v. Atkinson, 63, 70 Mahony v. Kekule, 445 ^lainwaring v. Leslie, 495 Mai Ian v. Mav, 17, 65,215,221,222,542 Mallett V. Bateman, 109 Mallorie's case, re Leeds Banking Co., 158 Mai pas V. London and S. W. Rail. Co 74 Manbv v. Scott, 490, 491 Marlow v. Pitfield, 321 [Marsh v. Hutchinson, 341 Marshall v. Berridge, 81 V. Green, .... 127, 143 V. Lynn, ... 42, 47, 151 V. Rutton, 34' I Martin v. Hewson, 270 ^lartiiii v. Coles, 471 Maspons v. Mildred, 43'J Masters, re, 237 Mathew v. Blackmore, 30 Matthews v. Baxter, 365 May V. Taylor, 440 Mayfield r. Robinf5on, 35 Mazzinghi v. Stephenson, ... 19 Meakin v. Morris, 322 Mechelen v- Wallace, 128 Megginson r. Harper, 440 Meredith v. Footner, 485 Mews f. Carr, 146, 410, 412 Meyer v. Haworth, 340 Meyerhof v. Froehlich, .... 521 Meynell v. Surtees, 163 Michelmore v. Mndge, 347 Mildred i\ Maspons, 439 Milford V. Hughes, 466 Miller c. Titherington, . . . . 68, 69 Millership v. Brookes, 10 Mills I'. Borthwick, 519 Milner v. Milnes, . . 328, 330, 347 Mitchell V. Reynolds, 17, 214. 215, 219, 243 B Mitchell's Claim, re River Steamer Co., 527, 528 Mitchinson v. Hewson, 328 Mizen v. Pick, 493 Moens v. Hevworth 248 Mollett V. Robinson, . . 63, 424, 427 Molton V. Camroux, .... 360, 361 Monk V. Whittenbury, 474 Monkman r. Shepherdson, . . . 203 Montacute • Countess; v. Max- well, 122 Montague v. Benedict, 488 Monypenny i: Monypenny, . 543, 556 Moodie r. Uannister, ... .512 Moon v. Whitney Union, . . 198,407 Moore v. Campbell, . . 70, 151, 162 V. Ramsden, 291 Moorsom v. Bell, 460 Morgan r. Corder, 442 V. Rowlands, 532 Morley v. Morlev, 512 Morrell v. Frith", 522, 524 Morris r. Martin, 495 Mortimer v. Wright, .... -200 Morton v. Burn, 184 V. Cope land, 406 V. Woods, 23 Moselv V. Hanford, 44 Moss V. Tribe, 361 Mostyn V. Fabrigas, 367 Mouflet r. Cole, " 225 Mountstephen i\ Lakeman, . 110, 111 Mouys V. Leake, 291 Moyce v. Newington, . . . 248,249 Mozley r. Tinkler, 156 Mumford v. Gething, , 55, 175, 223 Muncev i'. Dennis, 59 Murray v. Earl of Stair, .... 9 V. Reeves, 240 Musgrave v. Drake, 464 Myers v. Sari, 67, 69, 542 N. Nash V Armstrong, 31 r. Hodgson, 533 National Provincial Bank v. Harle, 295 Naylor v. Palmer, 558 Neilson v. Harford, . . . . 71, 540 V. .James, 60, 67, 70 Nerot V. \Vallace, 240 Nesbitt V. Lushington, 560 Newell V. Radford, .... 149, 150 Newland v. Watkins, 291 Newman v. Newman, 288 Newton v. ]\|arsden, 228 xvm TABLE OF CASES. PAGE New Zealand and Australian Land Co. v. Watson, 439 V. Ruston, .... lb. Nicholls V. Diamond, 404 t'. iStretton, . . . . iJO, 218 Nicholson r. Bradford Union, . 374 Kicliolson V. Drury Buildings Es- tate Co., . . 348 V. Ricketts, 170 Koble V. Ward, 151 Norfolk Railway Co. v. M'Na- mara, 30 Norris v. Irish Land Co., .... 601 Northcote v- Doughty, 320 Norton v. Powell, 280 Nunn i'. Fabian, 138 Nurse v. Craig, 493 Nye V. Mosely, 17 o. Oakes v. Turquand, 248 Oliver, ex parte, re Hodgson, . . 19 V. VVoodroffe, 321 Onslow, in re, ex parte Kibble, . .152 Oriental Inland bteam Co. i'. Briggs, 156 Ornie t'. Galloway, 108 Orrell v. Coppock, 107 Ottaway r. Hamilton, 498 Owen V. Thomas, 88 V. Van Uster, 404 P. Padstow Total Loss and Collision Assurance Association, in re, . 293 Paget i\ Foley, 39 Paice i\ Walker, 453 Paine v. .Strand Union, . • . . 37 1 Pardo I'. Bingham, 515 Pargeter v. Ilarris, 23 Parker v. Ibbetson, 61 V. Lechraere, 348 V. Leigh, 184 V. Staniland, 131 Parkin v. Carruthers, 460 Parkinson v. Collier, 03 Parol ti. Moor, 373 Parsons v. Alexander, . . . 269, 271 V. Thompson, 235 Parton v. Crofts, 148 Partridge v. Whiston, 288 Pasley v. Freeman, .... 246, 247 PAGS Paterson v. Gandasequi, 441, 442, 413 V. Powell, 274 V, Tash, 471 Pawle V. Gunn, 193, 199 Paxton V. Popham, 18 Payler v. Homersham, 558 Peacock v. Peacock, 459 Pearce v. Brooks, 212 Peate v. Dicken, 279 Peirce i'. Corf, 91, 147 Pellecat v. Angell, 258 Pemberton v. Vaughan, .... 222 Penrose v. Martin, 401 Perry v. Fitzhowe, 35 V. Hall, 468 V. Jackson, 517 Peruvian Railways Company v. Thames and Mersey Insurance Company, 402 Peter v. Compton, 134 Peters v. Fleming, 310 Phillimore v. Barry, 147 Phillips V. im Thurm, 28 Philliskirk v. Pluckwell, .... 344 Philpott V. Wallet, 121 Pickard v. Sears, 26, 27 Pickering v. Busk, 422, 470 Piggott V. Stratton, .... 652, 553 Pike V. F'itzgibbon, 352 Pilbrow V. Pilbrow's Atmospheric Rail. Co.,- 21, 22 Pilkington v. Scott, .... 226, 227 Pinchon's case, 34 Pitt V. Purssord, 1 93 V. Smith, 304 Pittam V. Foster, 330 Poplett V. Stockdale, 210 Potter V. Duffield, 84, 85 Potts V. Bell, 239 Pouiter V. Killingbeck, .... 131 Pourtales Gorgier v. Morris, . . 195 Powell V. Horton, 66 Power V. Butcher, 467 Pownall V. Ferrand, 192 Prestwick r. Marshall, 409 Price V. Easton, 175 V. Green, 20, 227 V. Moulton, 29 Priestly v. Fernie, 440 Prince v. Brunatte, 409 Prior V. Hembrow', • 193 Probart n. Knouth, 321 Proctor V. Sargent, . . 180, 218. 222 Prole V. W' iggins, 240 Prugnell v. Grosse, 216 Pul brook V. Lawes, 98 Pust V. Dowie, 601 Pyke, ex parte, in re Lister, . . . 270 Pym V. Campbell, 12 TABLE OF CASES. XIX Q. PAGE Queen v. Hughes, 3 V. Nevill, 279 V. Stamford (Mayor of) . 370 V. Stoke-upon-Trent, . 56, 60 Quincey v. Sharpe, 525 E. Rackharn v. Marriott, 526 Ramazotti v. Bowring, 436 Ramsey v. Macdonald, o68 Randall v. Morgan, 122 Randle v Gould, _. 229 Rann v. Hughes, 35, 103 Rawlyns c. Vandyke, 492 Read v. Anderson, 260, 27 1 V. Legard, ... . 362, 493 V. Roval Exchange Assurance Co., . .' 275 Reader v. Kingham, 114 Reed v. Moore, 495 Reeves v. Capper, 36 R. V. Bigg, 374 V. Chawton, .'^41 V. Cox, 282 V. Huglies, 3 V. Inhab. of Gravesend, . . . 252 V. Lord 322 V. Nevill, 279 V. Oldland 201 V. Silvester, 278 V. Stamford (Mayor of ), . . . 370 V. Stoke-upon-Trent, . . 56, 60 V. Whitnash, 278 V. Wilson, 306 V. Younger, 282 Reid I'. Hoskins, . • 239 V. Teakle, 484 Reuss V. Picksley, 96, 97 Reuter v. Electric Telegraph Co., 377 Rhodes v. Sniethurst, 517 Richards v Ricliards, . . . 344, 345 Richardson v. Du Bois, . . 493, 494 Riche V. Ashbury Railway Car- riage and Iron Co., 398 Ricketts v. Bennett, 394 Ridd V. Moggridge, 531 Ridgwav V. Wharton, 88 Ridley r. Plymouth Raking Co., 389 Right dJeffereys i'.Bucknell, 22, 547 Riley v. Packington, 424 Risbourg v. Bruckner 441 Rishton V. Whatmore, 91 Ritcliie V. Smith, ... 18, 240, 253 River Steamer Co., in re, Mit- chell's Claim, 527, 528 Roberts v. Barker, 59 PAGR Robertson v. Jackson, . . . 64, 542 V. Money, 65 Robinson v. Gleadow, 431 V. Mollett, . 63, 424, 427 V. Ommaney, . . 20, 228 Robson r. Drummond, 461 Roddam v. Morlev, 512 Rodwell ('. Phillips, 126 Roe d. Wilkinson v. Tranmarr, . 548 Rogers, ex parte, in re Rogers, . . 268 V. Pavne, 31 Roscorla v. Thomas, .... 206, 207 Rosewarne v. Billing, 269 Ross V. Estates Investment Co., . 244 Rosseter v. Calilraann, 292 Rossiter r. Miller, 85, 158 Rourke v. Short, 267, 268 Rousillon V. Rousillon, 225 Routledge v. Grant, .... 159, 164 Rowbotham v. Wilson, 23 Ruckmaboye v. Mottichund, . . 366 Rumsey v. George, 329, 330 Rusby V. Scarlett, 419 Russell V. Thornton 156 Rutherford, in re, Brown v. Ruth- erford, 530 Rutland's (Countess of) case, . . 42 Ryder v. Wombwell, . . 310, 312, 314 S. Sainsbury r. Matthews, 125 Sainter v. Ferguson, .... 222, 226 Sale V. Lambert, 84 Saloon Steam Packet Co., re ex parte Fletcher, 15S Saltmarshe v. Ilewett, 291 Sanders v. Coward, . . . • . . 508 V. Rodway, 229 Sandiman v. Breach, 279 Sari V. Bourdillon, 150 Saunders v. ^^'akefie!d, 77 Saunderson v. .Jackson, .... 94 V. Piper, 49 Savage v. Madder, 271 Scarfe v. Morgan, 280, 282 Scarpellini v. Atcheson, .... 347 Schneider v. Norris, 94, 95 Scholev V. Walton, 532 Scorell V. Boxall, 126 Scotson V. Pegg, 173 Scott V. Eastern Counties Rail. Co. ^ 145 Seagram v. Knight, 519 V. Tuck, 3 Seaton v. Benedict, 488 Seignior x: Wolmer, 434 Semenza o, Brinsley, 438 XX TABLE OF CASES. PAGE Senior v. Arniitase, o(> Sentance v. Poole, . • 3l)4 Sliac'kell ('. Rosier, .... 2(i, 2o() Shadwell v. .Shadwell, 170 Shardlow v. Ojtterell, ..... 83 Sliarin<>ton v. iStrotton, 14 Sliarnian v. Rraiidt, .... 146, 410 Sharp (I. Gibbs, 80 Shaw r. Benson, 292 V. Port Pliilip and Colonial Gold iM ining Co., ... 28 V. Pritchard, 290 V. Simmons, 292 Shelley v. Wright, 21 Sherrington v. Yates, 330 Shilling V. Accidental Death As- surance Co., 276 Shillito V. Theed, 2(;r, Shillibeer t'. Glyn, . . . .172,189 Shipley v. Kymer, 472 Shrewsbury v. Blount, 248 Shubrick ?'. Sa mond, 13 Sidwell V. Mason, 529 Sigel V. Jebl), 261 Siggers V. Evans, 36 Simm V. Anglo American Tele- graph ('o., 28 Simons v. Johnson, 5o8 Simpson v. liloss, 306 V. Lamb, 238 v. Margitson, . . . 66, 541 V. Nichols, .... 280, 2.S1 Sims V. Bond, 436 Sievewright v. Archibald, . 147, 466 Skeet V. Lindsay, 525 Skull V. Glenister, 540 Sloane r. Packman, 291 Smart ?•. Harding, 129 Smcthurst r. Mitchell, . . . . • 441 Smith r. Algar, 185 V Anderson, 293 V. Birmingham Gas Light Co., 373 V. Bromley, 301 V. Cart Wright, 27 iJ V. Chadwick, 248 V. Clegg, 198 V. Cufie, 303 V. Hill, 517 V. Hull Glass Co., ... . 390 V. Johnson, 401 V. Lindo, .... 60, 253, 466 V. Mawhood, 2^6 V. Neale, 96, 139 t>. Sheli)orne, 284 V. f^mith, 178 V. Sorbv 21-'' V. Surinan, . . . 126,127,147 V. Thompson, 540 PAOB Smith V. Thome 526 V. Wheatcroft, . ... 158 V. White, 211 V. Wilson, ... 65, 71, 542 Smyth ?'. Ander.son, 448 Sue ling r. Lord Iluntingfield, 13H, 139 Souch V. Strawbridge, . . . 136, 138 South of Ireland Colliery Co. v. \^ addle, ........ 377, 399 South Wales Atlantic Steamship (.-'o., in re, 293 Spartali v. Benecke, 68 Spencer's case, 32 Spong V. Wright, 524 Sprye v. Porter, 238 Spurr v. Cass, 435 Staines v. Wainwright, . . .19, 240 Standen v. Christmas, 31 Stanley r. Jones, 237 Stead V. Dawber, 47, 151 Steiglitz V. Eeginton, 37 Stephens v. De Medina, ... 388 Stevens v. Biller, 470 Stevenson v. McClean, . . . 164, 165 Stewart v. Aberdein, 468 V. Cauty, 60 V. Eddowes, 49 Stikeman v. Dawson, 322 Stoc'-dale v. Onwhyn, 210 Stones (' Dowler, 73 Stowell ('. Robinson, 47 Stracy v. Bank of England, . . . 186 Strachan ?'. Thomas, 39 Stratton v. Eastall, 21 Stretton v. Busnach, 340 Strithorst v. Gra>me, .... 515, 517 Stronghill v Buck, 22 Stroud r. Marshall, 357 Sturgis V. Darell, 617 Summers v. City Bank, 350 Surtees v. Lister, 173 Sutton ('. Sutton, ... 38, 478, 509 V. Tatham, ... 60, 193, 424 Swan V. Phillips, 119 Sweet?'. Lee, 80,97,137 Sweeting v. Pearce, .... 468, 469 Swift V. Winterbotham, .... 120 Syers v. Jonas, 61 T. Tabrara v. Freeman 240 Tallisr. Talli.s, .... 17,216,223 Tanner v Smart, . 522, 523, 525, 526 Taplin ?'. Florence, 35 Tarbuck v. Bispham, 359 Taylor v. Ashton, 244 ex parte, in re Burrows, . . 320 TABLE OF CASES. XXJ Taylor v. Bowers, 305, 306 V. Chester, 211 V. Crowland Gas Co., . . 254 V, Hihirv, 112 V. Laird^ 201 V. Stray, 60, 193 Teal r. Auty, " 126, 131 Teiu[>e.st v. Kilner, .... 142, 387 Tempson r. Knowles, ISO Tiiacker i'. Hardy, .... 268, 272 Thackoorseyda-s r. Dhondraull, . 207 Thomas v. Edwards, 235 V. Thomas, 175 Thampson c Gardiner, . . . 148 I'. Waitliman, .... 530 Thomson v Davenport, 442, 443, 447, 453 Tliornborow v. Whiteacre, Thorne i: Kerr, Thornton v. lUingworth Tluirsby v. Plant, . . Tidswell V Ankerstein Tomlinson v. Bullock, »'. Gell, Toms npp. Cumins re.s-p Foussaint v. Martinnant, Townes V. Mead. . Tredwen v. I^.ourne. Trimble v. Hill, . Truenian r. Hurst, V. Loder, . Tucker v. Lin<;er, . Tuckey v. Hawkins, Tupper V. Fo:dkes, Turner v. Rookes, . V. Trisby, . V. Thomas, . V. Vau£(han, Turney v. Dodwell, Tweddle v. Atkinson Tyler v. Bennett, . 63, r . .512 . . 522 . . 32 . . 275 . . 331 108, 112 . . 406 . . 193 . .516 . . 395 270, 272 . 321 , 421, 432 . 59 . 506 7 .496 .315 . 440 . 17 522, 532 122,176 . . 123 U. Udhe V. "Walters, 65 Underwood r. Nicholls 468 Unity Banking Association, ex parte, 324 Universal Banking Corporation, re, ex parte Gunn, 158 Unwin v. Leaper, 232 Urquhart v. Macpherson, . . . 248 V. Valpy V. Gibson, 150 Van Casteel i-. Booker, . . 474, 480 PAGE Vandenbergh v Spooner, . . . .149 Varney v. Hickman, .... 270, 271 Vaughan v. Hancock, J 28 Vere v. Ash by, 400 Vernon v. Smith, 32 VoUans v. Fletcher, 103 Von Lindenau v. Desborough, . 275 W. Wade V. Simeon, 188 V. Tatton, 119, 120 Wain V. Warlters, 7-7 Wain man v. Kynman, 634 AVainwright v. Bland, 276 Waite V. Jones, 20 Waithman v. Wakefield, .... 486 \Vaketield c. Newton, 236 Walcot V. Walker, 210 Walker v. Bradford Old Bank, . 295 V. Crofts, 291 V. Hunter, 542 V. Perkins, 211 V. Rostron, 206 Wall's case, ?e Imperial Land Co. of Marseilles, 164 Waller v. Lacv, 529 Wallis V. Dayj 17 V. Lit"tell, 44 Walsh ?'. Bishop of Lincoln, . . 283 Walstab r. Spottiswoode, . . . .103 Walton, e.z parte, in re Levy, . . 561 Ward I'. Bvrne 221 V. Hobbs, 245, 246 Waring v. Favenck, 441 Warner v. Harrison 164 V. M'Kay, 438 V. Willington, 96 Warwick r. Pruce, 327 Waterford and Dublin Rail Co.n. Pidcock, 386 Waters v. Earl of Thanet, . . .525 V. Tomkins, 534 Watkins v. Nash, 11, 12 V. Rymill, 154 Watson V. Eales, 385 Watts ('. Friend, 150 Waugh V. I'arver, 455, 462 V. Cope, 534 V- Morris, 2i8 Webb V. Plummer, 59 V. Rhodes, 198 V. Commissioners of Heme Bay, 28 Webber v. Lee, 131 Webster v. Webster, 229 Weeks v. ilaillardet, 6 Weir V. Bell, 247 xxu TABLE OF CASES. PACK Wei ford r. Beazley, 88 Wells V. llorton, 135 V. Malbon 344 Wennall v. Adney, 203 West V. Blakeway, 31 Westliead v. Sproson, 167 Westropp V. Solomon, . 60, 193, 428 Wetherell v. Jones, .... 250, 256 Wharton v. Mackenzie, .... 313 Wheatcroft v. Hickman, . . 454, 4>5 AVhitcorub v. Whiting, 530 White V. Bluett, 181 V. Cuyler, 487 Whitehead v. Karron, 460 V. Greetham, . . 172, J 89 V. Tuckett, 415 Whitley i). Lowe, 531 Whittaker J). Howe, 217 AVhywall v. Champion .... 320 Widgery v. Tepper, 348 Wigglesworth v. Dallison, ... 56 Wildest-. Dudlow, 114 Wiles V. Woodward, 23 Wilkes V. Ellis, 406 Wilkin V. Manning, 246 Wilkinson v. Byers, 187 V. Evans, 151 V. Grant, 198 V. Lindo, 440 V. Lloyd, 388 V. Oliveira, 178 Willatts t;. Kennedy, . . .173,184 Williams v. Byrnes, 84 V. Brisco, 96 V. Griffith, 522 V. Harrison, 321 V. Hedley, 802 V- Jones, 64 515 V. Jordan, 85 V. Keats, 460 *. Lake, 82, 149 V. Mercier, . . . 332, 352 V. Moor, 321 t). Paul, 281 c. Protheroe, 237 PAOl Williamson v. Clements, . . . .171 V. Dawes, 340 V. Watts 321 Willis r. New ham, .... 534, 536 Willison V. Patteson, 3G7 Wilson V. Bevan, 1 86 V, Curzon, 385 V. Ford, 498 V. Mushett, 229 V. Poulter, 431 V. Stnignell, .... 236, 305 V. Tunmian, 431 r. Wilson, 18, 229 V. Zulueta, 445 Wing V. Mill, 201 Wolton V. Gavin, 280 Wontner v. Shairp, 163 Wood V. Duke of Argyll, . . . 462 V. Leadbitter, 31,35 V. Eowclifi'e, .... 474, 475 Worsley v. South Devon Eail. Co. .... 35 Worthington v. Grimsditch, . . 534 V. Warrington, . . 662 Wright V. Dannah, .... 146, 410 V. Stavert, 128 Wyatt V. Hodson, 530 X. Xenos V. Wiekham, 9 Y. Yates V. Ash ton, 29 Yates V. Boen, 357 Yea V. Fouraker, 522 Yeatman, ex parte, 237 Young V. Kitchin, 205 V. Corporation of Learning- . ton, 380 V. Kaincock, 22 V. Schuler, 117 V. Timmins, 225 TABLE OF STATUTES CITED IN THIS BOOK. [the figures refer to the marginal, pages.} PAGE 13 Edw. 1, Stat. 3, c. 1 (Statute of Merchants), . • 3 27 Edw. 3, c. 9, lb. 23 Hen. 8, c. (5, ........ lb. 27 Hen. 8, c. 10 (Statute of Uses), 17 32 Hen. 8, c 34, 32 13 Eliz., c. 5, 165 c. 20, 290 31 Eliz., c. 6, 282 21 Jac. 1, c. 16, ... . 513,518,520 s. 4, 515 s. 7, 514 3 Car. 1, c. 1, 279 10 Car. 1, sess. 2, c. 6, 520 16 Car. 2, c. 7, 260, 266 s. 3, 260 29 Car. 2, c. 3 (Statute of Frauds), 5, 74 6. 1, . 75,132,133,413 6. 2, . . . 75, 132,413 8.3 7.5,413 8.4, . 76, 86, 89, 90, 92, 93, 96, 97, 99, 102, 105,110,111, 114,115, 117, 120,122,124, 129, 130, 132, 13.S, 137, 139, 140, 142-144, 146, 148-150, 387,413. 8.5, 75 B. 6, 76 8.7, lb. B. 17, 48, 76, 86, 124, 125,127,141- 146,149,150, 387,411,413. ss. 19, 20, 21, . . . 76 c. 7 (The Lord's Dav Act), 277, 278 3 Will. 3, c. 14 (Statute of Fraud- ulent Devises), . 10 & 11 Will. 3, c. 24, s. 14, . . 282 3 & 4 Anne, c. 9, 295 c. 16, 0. 19, 516. 518 6 Anne, c. 16, 19, 252, 465 9 Anne, c. 14, s. 1, 260, 266 s. 2, 261, 266 10 Anne, c. 19, s. 121, 465 12 Anne, stat. 2, c.'12, 282 s. 2, 283 8 Geo. 1, c. 25, 3 2 Geo. 2, c. 22, 437 13 Geo. 2, c. 19, 262 s. 1, 2G3 18 Geo. 2, c. 34, s. 11, . . . 262, 264 19 Geo. 2, c. 37, s. 1, 274 14 Geo. 3, c. 48, . . . . 153, 273-276 s, 2, 27G c. 78, ir)3 34 Geo. 3, c. 61, 282 36 Geo. 3, c. 86, ss. 2, 3, .... 253 43 Geo. 3, c. 84, 290 54 Geo. 3,0.96, 13 55 Geo. 3, c. 194, s. 15, 240 57 Geo. 3, c. Ix., 465 s. 2, 252 c. 99 290 58 Geo. 3, c. 93, 297 4 Geo. 4, c. 83 (Factors^ .... 472 6 Geo. 4, c. 81, ss. 25, 26, ... . 255 c. 94 (Factors), 472 7 Geo. 4,0.46, 120,383 7 & 8 Geo. 4, c. 25, .... 289, 290 9 Geo. 4, c. 14 (Lord Tenterden's Act),s.l,406,519, 534 s. 5, 152 s. 6, 117,118 s. 7, 145 c. 94, 290 1 Will. 4, c. 47 (Sir E. Sugdcn's Act), 33 xxiii 33 XXIV TABLE OF STATUTES PAGE 2 Will. 4, c. 16, ss. 11, 12, . . . 257 2 & 3 Will. 4, c. 89 (Uniformity of Process), .... 5(i3 3 & 4 Will. 4, c 27 ( Limitutions), 38 c. 42 (Limitations), . .'., 38, 5(»5, 6U8, 518 s. 4, 509 s. 5, . . . 510,512,529 8. 6 513 s. 7, 516,517 3 & 4 Will. 4, c. 104, 34 6 & 6 Will. 4, c. 41, . . 266, 297, 298 s. 1, 267 c. 63 292 6&7 Will.'4, c. 37, s. 14, . . ! 282 c. 76, 460 I & 2 Vict., c. 106, 290,291 c. 1 10, 4 2«&3 Vict., c. 11, s. 8, lb. c. 54, 499 3 Vict., CO, 263 5 & 6 Vict., c. 39 (Factors), . 472, 473 s. 4, 482 c. 45 (Copyright), s. 13, . 37 6 & 7 Vict., c. 18, s. 100, .... 406 7 & 8 Vict., c. 48, 253 c. 110, 382,389 c. 113, 383 8 Vict., c. 16 (Companies Clauses Consolidat ion Act, 1845), . . .382 c. 18 (Lands Clauses Con- solidation Act, 1845), lb. c. 20 (Railway Clauses Con- solidation Act, 1845), lb. 8 & 9 Vict., c. 106, s. 3, . . . 37, 132 s. 5, 13 c. 109, 260, 267 s. 15, .... 266,298 s. 18, .... 266, -269 II & 12 Vict., c. 63, s. 69, . . . .110 s 85, 380 15 & 16 Vict., c. 76 (Common Law Procedure Act, 1852), s. 132, . . 4 16 & 17 Vict.,c. 107, ss. 170, 171, 172, 250 c. 113, ss. 24, 27, .... 530 c. 119, s. 5, 271 17 & 18 Vict., c. 90, 260 c. 104 ( Merchant Shipping Act, 1854), s. 55, sched. E., ... 38 c. 125 (Common Law Pro- cedure Act, 1854), ss. 68-74, .... 501 19 & 20 Vict., c. 47, 382 PAGB 19&20 Vict., c. 47, s. 43, . . . 401 c. 97 (Mercantile Law Amendment Act, 1856), s. 3, . 79, 115 s. 9, 537 8. 10, .... 50), 515 8.11, .... 510,519 8. 12, 517 s. 13, .... 406, 530 s. 14, 5:i0 20 & 21 Vict., c. 49, 382 c. 80, lb. c. 85, s. 7 • . . 342 ss.21, 26, 343 23 Vict., c. 28, 277 25 & 26 Vict., c. 89 (Companies Act, 1862), 374,375,383,396 8. 4, . . . 292, 293, 397 8. 18, 399 ss. 23, 31, Table A., 404 8. 38, 4o3 8. 47, .... 400, 401 6. 55, . . .... 400 8. 75, 403 ss. 79, 80, 402 ss. 90, 1 34, ... . 403 27 & 28 Vict., c. 1 1 ', s. 1, . . . . 4 30 & 31 Vict., c. 23, s. 7, . . . .152 c. 131 (Companies Act, 1867), ... .383 . 8. 37, 377, 399 32 & 33 Vict., c. 46, s. 1, . . . . 34 c. 62 (Debtor's Act, 1869), ss. 4, 5, .... 109 c. 70, 246 c. 71 (Bankruptcy Act, 1869), ss. 31,39, 439 3. 49 204 33 & 34 Vict., c. 14 (Naturaliza- tion Act, 1870), s. 2, 368 c. 23, 8. 1, lb. ss. 6, 7, 8, 30, . . . 369 c. 60 (London Brokers' Ee- lief Act, 1870,1, s. 2, 465 c. 93 (Married Women's Property Act, 187U), . . . 334,339 8. 1, . . . 338,348,352 8. 10, 349 8. 11, .... 332,349 s. 12, .... 331,352 8. 15, 331 c. 104 (Joint Stock Com panics Arrange- ment Act, 1870), 383 CITED IN THIS BOOK. XXV PAGE 36 & 37 Vict., c. 66 (Judicature Act, 1873), s. 3, . 1 8. 24, 538 sub.-s. (4), . . 99 8. 25, sub.-s. (6), 31, 32, 238, 294 sub.-s.(ll), 99, 538 s. 34, 34 37 & 38 Vict. c. 34, s. 2, .... 240 c. 50 (Married Women's Property Act (1870), Amend- ment Act, 1874), 334, 339 s. 1, 332 . s. 2, 332, 333 s. 5, 333 C. 57 (Real Property Limi- tation Act 1874), s. 1, . . . . 38, 510 8.4, 38,510 s. 8, . . . 38,509,512 c. 62 (Infants Relief Act, 1874), s. 1, . 325, 326 s. 2, . . . 152, 32o, 326 38 & 39 Vict., c. 55 (Public Health Act, 1875), s. 174, •••_•_ 379 c. 60 (Friendly Societies Act, 1875), s. 28, 276 sub-s. (8), ... lb. c. 77 (Judicature Act, 1875), S.21, . . . 4 Sched. I., O. l.,r. 1, . 502 39 & 40 Vict., c. 36, s. 288, . . . 250 c. 80, s. 24, • lb. 40 & 41 Vict., c. 26 (Companies Act, 1877), . . . 383 c. 39 (Factors' Act, 1877), 473, 475, 477 s. 1, 478 s. 2, lb. 8. 3, 479 s. 4, 480 s. 5, 481 s. 6, 483 41 V'ct., c. 19, s. 4, 342 41 & 42 Vict., c. 49 (Weights and Measures Act, 1878), 8S. 19, 21, 291 PAGE 42 & 43 Vict., c. 59 (Civil Pro- cedure Acts Re- peal Act, 1879), s. 3, 368, 513 c. 76 (Companies Act, 187^), . . . . .383 43 Vict., c. 19 (Companies Act, 1880), lb. 45 & 46 Vict., c. 61 (Bills of Ex- change Act, 1882), s. 31, 296 s. 67 192 s. 72, 365 ss. 83-89, 296 s. 96, Sched. II., . 295 45 & 46 Vict., c. 75 (Married Women's Prop- erty Act, 1882), . 339 8.1, sub.-s. (1), . . 3.38 sub.-s. (2), 350, 354 sub.-s. (3), 354, 487, 499 sub.-ss. (4), (5), 354 8. 2, . . . 337, 338, 354 s. 13, 334 s. 14, ...... 335 s. 15, 336 45 & 46 Vict., c. 75 (M. W. P. Act, 1882), s. 22, 334, 353 8. 24 338 8. 25, 334 46 & 47 Vict., c. 28 (Companies Act, 1883), . . .383 c. 49, ss. 4, 5, 7, 437 c. 52 (Bankruptcy Act, 1883), s. 30, ... 204 ss. 37, 38, .... 440 c. 57 (Patents, Designs, and Trade Marks Act, 1883), ... 37 47 & 48 Vict., c. 3 (London Brokers' Relief Act, 1884), s. 2, . 252, 465 8. 3. 252 THE LAW OF CONTRACTS. LECTURE I. ox THE NATUKE AND CLASSIFICATION OF CONTKACTS AND ON CONTRACTS BY DEED. The whole practice of our English Courts of Com- mon Law {a), if we except their criminal jurisdiction and their administration of the law of real property, to which may be added those cases which fall within the fiscal jurisdiction of the Court of Exchequer, may be distributed into two classes. Contracts and Torts. Of this you can easily satisfy yourselves by putting to your own minds any conceivable case of legal inquiry. If it do not involve a question of criminal law, or of the title to land, or of Exchequer jurisdiction, you will find that it resolves itself into a Contract or a ^Tort. r^^oi Thus, suppose it to be the non-performance of a covenant, the non-payment of a bond, the dishonour of a bill of exchange, the non-payment of rent, the default of a surety, — these are all subjects of inquiry arising from contracts. So, again, if it involve an assault on the person, an injury to the reputation by libel or slander, a nuisance to the dwelling, a conversion of prop- erty, — these are only so many descriptions of torts. And as the subjects of legal inquiry divide themselves, so do the forms in which the inquiry is carried on ; for (a) The Superior Courts of Common Law are now merged in the Supreme Court. See 36 & 37 Vict. c. 66 (Supreme Court of Judicature Act, 1873), s. 3. 2 CLASSIFICATION OF CONTRACTS. [lECT. I. all actions, as you are aware, are of Tort or of Con- tract, a division wliicb, as you see, is rendered neces- sary by the very nature of tilings, and does not result from any arbitrary principle of arrangement. Now, therefore, the whole subject-matter of the in quiries about which our Courts of Law are conversant (excepting the cases I have excepted) being distributable into these two heads, Contract and Tort, I am about to take the former of them, that of Contract, and to state those principles of every-day recurrence which govern the law of England relative to contracts, and which it is absolutely necessary that every lawyer should bear constantly in mind, and have (to use the ordinary ex- pression) at his fingers' ends, if he will avoid falling into egregious mistakes in the course of his daily practice. All contracts are divided by the Common Law of England into three classes : — ^. _, '-'1. Contracts by matter of record. •- -■ 2. Contracts under seal. 3. Contracts not under seal, or simple con- tracts.^ With regard to contracts by matter of record, they are so little used in the ordinary affairs of ])rivate indi- viduals, that I may dismiss them in a very few words. A Record is a memorial or remembrance on rolls of ' A useful division of this third class is adopted by Mr. Leake (Digest of the Law of Contracts, pp. 21, '12, and Chap. I., Sec. 2). Following Austin, he distinguishes between simple contracts formed by agreement, and contracts implied in law. To the first class he assigns, however, not merely express agreements, but such contracts as are proved by circumstantial evidence mani- festing the intention of agreement by the parties: Thorn v. City of London, L. R. 10 Ex. 123; while he uses the term "implied in law" to denote the class of simple contracts raised by law from facts and circumstances independ- ent of agi-eement and in which an agreement or promise, if implied at all, is an implication of law only, and has no existence in fact. This class of con- tracts is discussed below, pages *197 el seq., but their character would perhaps be more easily understood if the distinctive classification and treatment of Mr. Leake had been adopted. LECT. I.] CONTRACTS OF KECOED. 8 parchment {b) ; and such memorial is not a record until enrolled in the proper office (c). At an early period of our law, statutes merchant and statutes staple, which are both contracts of record for tlie payment of debts, were commonly in use. Subsequently, recognizances in the nature of a statute staple were established {d). These contracts are, however, now almost unheard of. The only contract of record with which we now occasionally meet is a recognizance, and that oftener in matters in which the Crown is concerned than between subject and subject (e)} Thus an ordinary mode of compelling a witness to attend and prosecute or give evidence (6) Co. Litt. 260 a. (c) Q. V. Hughes and others, 36 L. J. Privy Coim. 23 ; Com. Dig. Kecord. (d) 13 Ed. I., Stat. 3, c. 1 (The Statute of Merchants) ; 27 Ed. III., c. 9; 23 Hen. VIII., c. 6 ; 8 Geo. I., c. 25. See also 2 Bl. Coram., p. 160, ed. by Coleridge. (e) It seems that the recognizance of a receiiper under the Court makes moneys due from him and unaccounted for, a debt of record as long as the recognizance exists. Seagram v. Tuck, 18 Ch. Div. 296 ; 50 L. J. (Ch.) 572. ^ A statute provision requiring a deed or contract to be recorded for safe keeping, and notice to purchasers, does not thereby make it a record, in the teclinical sense of that term. And it has been so held even in cases in which the legislature have directed the process upon such deed or contract to be by scire facias, a writ which at common law lies on a record only. Thus, in Pennsylvania, it has been decided that nul iiel record is no plea to a scire facias on a mortgage : Frear v. Drinker, 8 Pa. St. 620 ; see also that the registry of a mechanic's lien is no record, and to a scire facias upon it, the plea of nul tid record is a nullity, Davis v. Church, 1 W. & S. 240. A recognizance is a debt of record, entered into before some court, judge, or magistrate, having authority to take the same : Com. v. Emery, 2 Binn. 431 ; Pace v. Mississippi, 25 Miss. 54. If the recognizance does not show that the court or judge had jurisdiction of the subject-matter, it is void: Bridge v. Ford, 4 Mass. 641, 7 Mass. 209 ; Com. v. Bolton, 1 S. & R. 328. It need not be under the seal of the party: State v. Root, 2 Rep Const. Ct. 123; Hall v. State, 9 Ala. 827; nor signed. A certificate that it was acknowledged on the day of its date is sufficient: Madison v. Com., 2 A. K. Marsh. 131 ; Com. v. Mason, 3 lb. 456. It cannot be aided by parol averments. If made returnable at a time when no term of court is holden, and there is nothing in the record from which the court can infer that such time was intended to describe the time of the next session of the court, the recognizance is void: Treasurer ?•. Merrill, 14 Vt. 64; The State v. Crippen, 1 Ohio St. 399. See Com. v. Bolton, 1 S. & R. 328. A paper purporting to be a recognizance, but taken by one not 3 4 CONTRACTS OF KECOED. [lECT. I. *in a criminal case is by recognizance, in which he L J binds himself to the Queen in a certain sum con- ditioned for the performance of the duty imposed on him ; and in case of his making default, that sum ac- cordingly becomes forfeited, and payable to Her Maj- esty. The commonest case of a recognizance between subject and subject was that of bail ; which has, however, become much less frequent since the Act restraining tlie right to arrest on mesne process (/). It may be added that statutes and recognizances no longer affect lands, unless registered under stat. 2 & 3 Vict. c. 11, s. 8, and the lands themselves have been actually delivered in execution {g). The peculiar incidents of contracts of record are : — First, that like all records, they prove themselves ; that is, their bare production, without any further proof, is sufficient evidence of their existence, should it be con- troverted. Secondly, that, if it become necessary to enforce them, (/)l&2Vict. c. 110. ig) See 27 & 28 Vict. c. 112, s. 1. authorized, although not technically a recognizance, is good as a bond at com- mon law : Dennard v. State, 2 Ga. 137 ; contra, Sargent v. State, 16 Ohio 2G7. The mere fact that proceedings are erroneous, will not avoid a recognizance given in the course of them : Cora. v. Haffey, 6 Pa. St. 348. A recognizance need not recite the special facts which gave the officer an authority to act in the particular case in which it was taken. It is enough if he had jurisdiction in cases of that general description ; and it appears that the condition is to do something to which a party may legally be bound by recognizance : People v. Kane, 4 Denio, 530; The People v. Millis, 5 Barb. 511; Gildersleeve v. The People, 10 lb. 35. The record is not the forfeiture of a recognizance, but only evidence of it ; and neglect of the clerk to omit to record the forfeiture when it is decreed, cannot aflect it. It may be entered nwac pro tunc, and the record, when so amended, is conclusive in a collateral proceeding : Ehoads v. The Com., 15 Pa. St. 272. A recognizance taken in open court is of itself evidence that it was taken by the order of the court witliout any formal entiy to that effect : Chumasero v. People, 18 111. 405. A recognizance is a com- mon law obligation and the sureties may be bound separately from their principal : People v. Dennis, 4 Mich. 609. A recognizance being a record cannot be averred against; People v. Watkins, 19 III. 120.— S. 4 LECT. I.] CONTEACTS OF RECORD. 4 that may be done, if it be thought proper, by writ of scire facias (h), — a writ which lies on a record only, and cannot be made use of for the purpose of enforcing any other description of contract.^ An obligation by record, however, may be *dis- charged by a deed of release, though a deed is a ^ ^ matter of inferior degree (i). However, as I said, the other two classes of contracts are those which are of most practical. importance, and to tJi.em, therefore, my observations will be addressed. These, as I have said, are — 1. Contracts by deed. 2. Contracts without deed, or simple contracts. 1 . With regard to contracts by deed : A deed is a written instrument, sealed and de- livered (j). Let us pause for a few moments to consider the parts of this definition. In the first place, it is a written instrument, and this writing, the old books say, must be on paper or parch- ment ; for if it were written on linen, wood, or other substance, it would not be a deed {k). But, though every deed must be written (/), it is not necessary that every such instrument should be signed, for, at Common Law, signature was not essential (m) ; and, although by several statutes, particularly the Statute of Frauds (n),' signature has been rendered essential to the validity of (h) Still, it seems, regulated by 15 & 16 Vict, c, 76, s. 132; see 38 & 39 Vict. c. 77, s. 21. (i) Barker v. St. Quintin, 12 M. & W. 441 ; Shepp. Touch. 322. (j) Co. Litt. 171 b; Shepp. Touch. 50. See lliblilewliite v. M'Morine, 6 M. & \V. 200. (k) Co. Litt. 35 b. (l) Shepp. Touch. 54. (m) lb. 56. (n) 29 Car. II, c. 3. ^ By statute in Pennsylvania, and perhaps in some other States, S( ire facia* is the method of proceeding to forclose a mortgage : Bouvier's Law Diet, sub wee; Bispham's Equity, od ed., § 156. 5 6 ON CONTKACTS BY DEED. [lECT. 1 certain specified contracts, yet *tliere are many L -I contracts which are not affected by any statute ; and to these last-mentioned contracts, and also to those which are the subject of several sections of the Statute of Frauds (o), if entered into by deed, signature is not necessary {p)} Secondly, it must be sealed and delivered. This is (o) See Shepp. Touch, by Preston, 56 ; Cooch v. Goodman, 2 Q. B. (42 E. C. L. E.) 580 ; Aveline v. Whisson, 4 M. & Gr. (43 E. C. L. E.) 801 ; Cherry V. Heming, 4 Exch. 631. See 2 Blackst. Ck)mm. 305. (p) Bac. Abr. Obligation, C. » Maule V. Weaver, 7 Pa. St. 332 ; Jeffery v. Underwood, 1 Ark. 108. But see Armstrong v. Stovall, 26 Miss. 275. — s. What was said in these cases as to the necessity of signature is mere dictum, as an examination of them will show. But in the very recent case of Miller V. Euble, 15 W. N. C. 431, the Supreme Court of Pennsylvania had to pass definitely upon the question. A statute provides that when a conveyance is to be made of the real estate of a married woman, husband and wife shall join and " it shall be lawful for them to make, seal, deliver, and execute a deed for the same, and after such execution" to appear before a proper officer and acknowledge the same. In that case the deed recited six grantors, of whom two were a husband and his wife in right of the wife. After the attesting clause were six scroll seals, opposite one of which the wife signed. The husband did not sign, but both appeared before a justice of the peace and duly acknowledged the instrument. The court held that the interest of the wife did not pass to the grantee. In the opinion Chief Justice Mercur says: "The great industry and careful search of counsel have not resulted in his being able to cite a case since McDill v. McDill (1 Dallas, 64), in which it Avas held by this court on a direct presentation of the question that a deed professing to convey land was sufficiently executed without any signature of the vendor. On the contrary, in Watson v. Jones (4 Norris, 117), McDill v. McDill is cited approvingly by Mr. Justice Gordon. Tlie recognition of any rule which dispenses with the necessity of the signature of the grantor would be fraught with great mis- chief. Aided by a pliant justice of the peace, or by a false personation before an honest one, it would provide a convenient way to rob a man of his land without the trouble and danger of counterfeiting his signature. . . . Sealing and delivery are not the only requisites which must precede the a'.-knowledg- ment. They nuist first make the deed. Tliis clearly imports the signing thereof. Until that is done it would be a forced construction of this language to say they had made a deed. The manifest meaning of tliis word in the con- nection in which it is used, is that the deed shall be duly prepared and be signed by them. The sealing is referred to as a separate act." The entire opinion sliould be read. In Washburne on Eeal Property (4th ed.) *553, it is stated that " In most of the States, however, a signature is required ; and, in all, it is uniformly practised." 6 LECT. I.] ON CONTRACTS BY* DEED. 6 the main distinction between a deed and any other con- tract. The seal is an indispensable part of every deed/ and so, except in case of the deed of a corporation (q), is the delivery {r). From this delivery it is a perfect deed, taking its effect from this essential part of its com- pletion is). It obviously follows immediately from this proposition that after delivery it cannot be altered — not even by filling up a blank {t)? With regard to delivery, however, you must observe that it is not absolutely {q) Case of Dean and Chap, of Femes, Dav. Rep. 116; Derby Canal Co. i;. VVilmont, 9 East, 360. (r) Shepp. Touch. 57. (s) Goddard's Case, 2 Rep. 4 b. (0 Weeks v. Maillardet, 14 East, 568 ; Hibblewhite v. M'Morine, 6 M. & W. 200. ' The policy of the common law as to the use and nature of a seal, was very fully discussed by Kent, C. J., in "Warren v. Lynch, 5 Johns. 244, where the Court refused to recognize a scrawl or scroll made by the pen as a seal, and held that a seal must be composed of wax or some tenacious substance. By statute in that State, however (Stat, of 7 April, 1848, c. 197), the impres- sion of the seal upon the paper is sufficient in the case of a corporation, and the statutes of Maine, Vermont, New Hampshire, and Massachusetts, give validity to such impressions in the case of legal processes and official docu- ments. With this exception, all the New England States adhere to the com- mon law requisitions of a seal. In New Jersey, a scroll with the pen is a suf- ficient seal on any instrument for the payment of mono v. (Rev. Stat. 1846.) By the common law of Pennsylvania, Delaware, Nortl and South Carolina, and Mississippi, such a scroll lias always been recognized as a sufficient seal, and in most, if not all the other States, it is believed that the law has been so settled by statute. [See title "Scroll" in Rawle's Bouvier's Law Dictionary.] — K. See Roberts v. Pillow, 1 Hempst. 624. The fact tliat a writing contains tlie words "sealed with my seal," when there is no seal or scroll attached, will not make it a sealed instrument: Chilton v. People, 66 111. 501. — s. ^ This rule must he understood, however, to apply to material altera- ticns or additions: Pigot's Case, 11 Coke 26 b; Waugh v. Bussell, 5 Taunt. (1 E. C. L. R.) 707 ; Wood v. Slack, L R. 3 Q. B. 379; SuffisU v. Bank, 7 Q. B. D. 270 ; Hale v. Russ, 1 Greenl. 334 ; Knapp v. Maltby, 13 Wend. 587 ; Marshall v. Gougler, 10 S. & R. 164. In Master v. Miller, 1 Anstr. 228, Wilson, J, is reported as saying: "I remember the case of Texira v. Evans, before Lord Mansfield, which was this : Evans wanted to borrow 400/. or so much of it as his credit should be able to raise ; for this purpose he executed a bond, with blanks for the name and sum, and sent an agent to raise money on the bond; Texira lent 200/. on it, and 7 6 ON CONTRACTS BY DEED. [LECT. T. necessary that the party executing should take the in- strument into his hand and give it to the person for whose benefit it is intended (w) ; but as it is said by (u) See Groodright v. Strapham, Cowp. 204, and Bac. Abr. Obligation, C. the agent accordingly filled up the blanks with that sum and Texira's name, and do'ivprfd the bond to him. On non est factum pleaded, Ix>rd Mansfield held it a good deed." This statement of the case of Texira v. Evans seems to to liave been accepted as law in England (or at any rate in many of the United, States) for many years, but in 1840 it was overruled in Hibblewhite v. M'Mor- ine, 6 M. & W. 200, which may now be considered as settled law : Swan v. North British, &c., Co., 2 H. & C. 175. These are both instances of the most important class of cases in which the question arises, viz. : those in which powers of attorney to transfer shares of stock have been given with blanks for the name of the transferee. These cases determine that such instruments are void and are not validated by being filled up by a party other than the maker, unless such person is authorized to supply them by an instrument under seal. The practice of the Stock Exchange to deliver stock in this way, the names to be inserted by the purchasing broker, was not allowed to prevail against this rule: Tayler v. Great Indian, &c., E'way, 4 De G. & J. 559. In these cases, however, the act establishing the company, or the articles of asso- ciation under which it operated, required that the transfer of shares should De by deed. In a later case where the articles of association provided that the transfer of shares should be by an " instrument in writing " it was held that blank "transfers" could be filled up by an authorized agent and would then be valid, though void as deeds, and though the uniform practice of the company was to require a deed of transfer. It does not appear whetlier these transfers purported to be sealed or not: Ex parte Sargent, L. E.. 17 Eq. 273; Prance v. Clark, 22 Ch. Div. 830. The American decisions are conflicting, a majority of the States adhering to the strict rule, but a considerable minority qualifying it, or rejecting it altogether ; see the cases collected in a note to Preston v. Hull, 12 Am. L. Eeg. 699. As to transfers of shares of stock, the custom is for tlie assignor to fill up a power of attorney under seal, to execute a transfer on the books of the company (usually printed on the back of the certificate) with the name of the issignee left blank, and the certificate thus indorsed may be passed from hand to hand, and the last holder will be en- titled to fill up the assignment with his own name, and complete the transfer on the bookb of the company: Eiddle, Law of Stockbrokers, 268 et seq. ; Morawetz, Private Corporations, |§ 328 et seq. and cases cited. In Worrall v. Munn, 5 N. Y. 239, it is said that the strictness of the Common Law has been relaxed and that the present doctrine may be thus stated : " If a con- veyance or any act is required to be by deed, the authority of the attorney or agent to execute it must be conferred by deed ; but if the instrument or act would be effectual without a seal, the addition of a seal will not render an authority under seal necessary, and if executed under a parol authority or subsequently ratified or adopted by parol, the instrument or act will be valid and binding on the principal." See Kneedler's Appeal, 92 Pa. St. 428. LECT. 1.1 ON CONTRACTS BY DEED. 6 Lord Cohe {x) : "a deed may be delivered by words without actual touch, or by touch without '^'words.^^ " The ^. ^ • • • • • r 71 delivery," bis Lordship says, " is sufficient without ^ -^ any words ; for, otherwise, a man who is mute could not deliver a deed .... And, as a deed may be delivered to the party without words, so may a deed be delivered by words without any act of delivery ; as, if the writing sealed lieth on the table, and the feoffor or obligor saith to the feoffee or obligee, * Go, and take up the writing, it is sufficient for you, or it will serve the turn, 07'take it as my deed,' or the like words, it is a sufficient delivery "(3/). However, in practice it is always safest and most ad- visable to follow the ordinary and regular course, which is, to cause the person who is to deliver the deed to place his finger on the seal, thereby acknowledging the seal to be his seal, and state that he delivers the in- strument as his act and deed.^ (x) Co. Litt. 36 a. (y) See further Doe d. Lloyd v. Bennett, 8 Car. & P. 124 ; Tupper v. Foulkes, 30 L. J. (C. P.) 214. ^ While delivery is essential to the legality of a deed, it may be either actual or verbal ; it is sufficient if there be an intention or assent of the mind on the part of the grantor to treat the deed as his : Stewart v. Eedditt, 3 Md. 67 ; McLure v. Colclough, 17 Ala. 89. The possession of the deed by a party claiming under the grantee is evidence of delivery to such grantee until the contrary' is shown : Stewart v. Redditt, 3 Md. 67 ; McMorris v. Crawford, 15 Ala. 271; Rushin v. Shields, 11 Ga. 636; Dawson v. Hall, 2 Mich. 390; Berry v. Anderson, 22 Ind. 36 ; Rhine v. Robinson, 27 Pa. St. 30 ; Firemen's Ins. Co. r. McMillan, 29 Ala. 147 ; Sadler v. Anderson, 17 Tex. 245 ; Little v. Gibson, 39 N. H. 505 ; Morris v. Henderson, 37 Miss. 492 ; Black v. Shreve, 13 N. J. Eq. 455; Black v. Thornton, 30 Ga. 361, 31 lb. 641; Benson v. Woolverton, 15 N. J. Eq. 158 ; Tuttle v. Turner, 28 Tex. 759 ; Newlin v. Beard, 6 W. Va. 110; Billings v. Stark, 15 Fla. 297; Goodwin v. Ward, 6 Baxt (Tenn.) 107; Roberts v. Swearingen, 8 Neb. 363; Stewart v. Stewart, 50 Wis. 445. The acknowledgment and recording of a deed are sufficient to warrant the presumption of a legal delivery, and as the clerk, after he has recorded it, is bound to return it to the grantee, the possession of it by him will be regarded as the possession of the grantee : Stewart v. Redditt, 3 Md. 67. See Critchfield 1;. Critchfield, 24 Pa. St. 100 ; Black v. Hoyt, 33 Ohio St. 203. The recording of a deed by the grantor under circumstances which create no suspicion of fraud, may be considered evidence of delivery : 9 7 ON COXTEACTS BY DEED. [lECT. I. It is not necessary that the delivery should be to the person who is to take the benefit of the deed. The judgment in the case of Doe d. Garnons v. Knight (2), which was delivered by Sir John Bayley after a curia advisari vuU, is worthy of a most careful perusal ; the learning relating to this subject will be found there clearly collected and discussed. The inference •- ^ which the Court, of which his ^Lordship was the {z) 5 B. & C. (11 E. C. L. K.) 671. See Botcherby v. Lancaster, 1 A. A. E. (28 E. C. L. K.) 77 ; Doe d. Kichards v. Lewis, 20 L. J. (C. P.) 177 ; Fletcher f. Fletcher, 4 Hare, 67. Buckley v. ButBngton, 5 McLean, 457. It is at most, however, pi-imd facie evidence of delivery : Welborn v. Weaver, 17 Ga. 267 ; Kowell v. Ilayden, 40 Me. 582 ; Berkshire Ins. Co. v. Sturgis, 13 Gray. 177 ; Boardman v. Dean, 34 Pa. St. 252 ; Somers v. Pumphrey, 24 Ind. 231 ; Jackson v. Cleveland, 15 Mich. 94 ; Kobinson v. Gould, 26 Iowa, 89 ; Kerr v. Birnie, 25 Ark. 225 ; [which may be rebutted : Knolls v. Barnhart, 71 N. Y. 474 ; Watson v. Kyan, 3 Tenn. Ch. 40 ; Union Ins. Co. v. Campbell, 95 111. 267.] From the fact of signing, the jury may presume the sealing and delivery, although there be no reference to sealing in the body of the writing, if there be a seal affixed to the name: Miller v. Binder, 28 Pa. St. 489. The delivery of a deed to the re- corder for the grantees is sufficient, if the grantees had agreed to accept : Hoffman v. Mackall, 5 Ohio St. 125 ; Boody v. Davis, 20 N. H. 140 ; Moli- neaux v. Coburn, 6 Gray, 124 ; Bensley v. Atwill, 12 Cal. 231 ; Balbec v. Donaldson, 2 Grant, 459 ; Masterson v. Cheek, 23 111. 72 ; Prettyman v. Good- rich, 23 111. 330 ; Houfes v. Schultze, 2 111. App. 196 ; Young v. Stearns, 3 lb. 498 ; Sharp r. Jarrell, 66 Ind. 52 ; Elsberry r. Boykin, 65 Ala. 336 ; Moore v. Giles, 49 Conn. 570 ; Metcalfe v. Brandon, 60 Miss. 685. When a deed was executed, handed to the register, and recorded without the knowledge or assent of the grantees, after which the grantor took and kept possession of it, it was held that in the absence of evidence that he intended this to constitute a delivery, it was not his deed: Hayes v. Davis, 18 N. H. 600. [See Knolls v. Barnhart, 71 N. Y. 474.]— s. A deed executed and acknowledged by a commissioner appointed by a de- cree to sell and convey land in partition proceedings is delivered w hen the Court confirms his report of sale and conveyance, although he retains manual jiossession of it : Cocks v. Simmons, 57 Miss. 183. The intent of the grantor and graniee that what was done should operate as a delivery and acceptance of the deed, maj' be implied from snibsequent admissions, conduct, and circumstances, even where the instrument remains in the hands of the grantor : Nichol v. Davidson County, 3 Tenn. Ch. 547 ; Snow v. Orleans, 126 Mass. 433; Kuck- man v. Euckman, 32 N. J. Eq. 259; Dukes v. Spangler, 35 Ohio St. 119; Thatcher v. St. Andrew's Church, 37 Mich. 264. The effect of a delivery i? not destroyed by a subsequent redelivery to the grantor: Otis v. Spencer, 102 111. 622 ; Rogers v. Rogers, 53 Wis. 36. 10 LECT. I.] ON CONTRACTS BY DEED. 8 organ, there drew from all the authorities on the sub- ject was, jQrst, " that where an instrument is formally sealed and delivered, and there is nothing to qualify the delivery but the keeping the deed in the hands of the executing party, nothing to show that he did not intend it to operate immediately, that it is a valid and effectual deed ; and tliat delivery to the party who is to take by it, or any other person for his use is not essential ;" sec- ondly, " that delivery to a third person for the use of the party in wliose favour a deed is made, where the grantor parts with all control over the deed, makes the deed effectual from the instant of such delivery." " ^ As early as the year 1809, the case of Belden v. Carter, 4 Day, 66, was similarly decided in Connecticut upon much the same facts as in Doe v. Knight, and in 1814, twelve years before the decision of that case (which is also reported in 8 D & R. 348, and see Exton v. Scott, 6 Sim. 31), the same conclusions had been arrived at, upon a reviaw of nearly the same authorities, in the case of Souverbye v. Arden, 1 John. Ch. 240, decided by Mr. Chancellor Kent, where the grantor of a voluntary deed having sworn in his answer to a bill filed by the grantees, " that he believed that he and his wife sealed the deed in the presence of two witnesses, and that they may have used the formal words of delivery," it was held that neither the subsequent retention of the possession of the deed by the grantor, nor his subsequent declaration contrary to its tenor, could destroy its efficacy : Young v. Moore, 1 Strobhart, 55 ; and it is well settled that if the deed has ever been once actually delivered, the retention or the parting with its possession is an immaterial fact : Sorug- ham V. Wood, 15 Wend. 545 ; Jaokson v. Dunlap, 1 Johns. Cas. 114 ; Brinckeroff V, Lawrence, 2 Sand. Ch. 406; Roosevelt v. Carrow, 6 Barb. 100; Jones i-. Jones, 6 Conn. Ill ; Den v. Farlee, 21 N. J. L. 280 ; Blight v. Schenck, 10 Pa. St. 285 ; Farrar v. Bridges, 5 Humph. 411. But upon tlie question whether there has ever been a delivery, the posses- sion of the instrument may have a material bearing. Delivery is, to a cer- tain extent, a question for the jury, but under the direction of the Court ; to what extent may be well exemplified by the case of Doe v. Knight, which was a 1 ejectment upon a mortgage. Wynne, an attorney, who had been in his lifetime the owner of the premises in question, had received a large sum for his client Garnons, and sent word to him that he had misapplied £i 0,000 of it, but that he would make him secure. Some years after Wynne wrote with his own hand a mortgage of all his property to Garnons to secure £10,- 000, brought it into the presence of his niece, signed and sealed it, said, " I de- liver this as my act and deed," and then took it away. In the same month ne delivered a parcel to his sister, saying, " Take this, it belongs to Mr. Gar- nons." Some days after, he asked for and took away the parcel, and in a tew 11 . 8 ON CONTRACTS BY DEED. [lECT. I. Before quitting the subject of delivery, it is right to explain the distinction between a deed, ordinarily so days returned it, somewhat reduced in bulk, saying, '* Here, put this by " Some months after this, Wynne died, liaving tirst executed a second mortgage of all his property to another person. The parcel was found to contain the mortgage which the niece had witnessed, which was to secure £10,000, together with a statement of the account between Garnons and himself, show- ing an indebtedness of that amount. The jury were told that if the delivery to the sister was, under the circumstances, a parting with the possession of the deed, and of the power and control over it for the benefit of Garnons, and to be delivered to him either in Wynne's lifetime, or after his death, they should find for the plaintifi', but that if it was merely delivered to her for safe custody as the depositary, and was subject to his future control and disposition, they should find for the defendant. The jury having found for the plaintiff. Sir John' Bayley, in delivering the opinion of the Court refus- ing a new trial, adverting to the objection that the conclusion which the jury drew, viz. : that the sister held the mortgage free from the control of her brother, had no premises to support it, answered it by saying that although the sister did return it, yet she would have been justified had she refused. (See to the same effect as to the depositary being a trustee for the grantee : Belden v. Carter, 4 Day, 66.) Two questions, therefore, arose ; first, whether when a deed is duly executed and formally delivered with appropriate words, but retained by the party executing it, that retention will obstruct the opera- tion of the deed, which question was answered in the negative ; and secondly, whether if delivery for such party be essential, a delivery to a third person will be sufficient, if such delivery puts the instrument out of the power and control of the party who executed it, though such third person does not pass the deed to the party benefited until after the death of the grantor. This question was answered in the affirmative ; and both of these propositions are perfectly settled law on both sides of the Atlantic: Belden v. Carter, 4 Day, 66; Johnson v. Ruggles, 13 Johns. 288; Brown v. Brown, 1 W. & M. 325; Bryan v. Wash, 2 Gil. 557 ; Merrills v. Swift, 18 Conn. 257 ; and see many cases collected in the opinion of the Court in Hulick v. Scovil, 4 Gil. 159. The grantor's placing the deed upon record — his putting it in the post- office directed to the grantee — his bringing an action for tlie consideration- money — the grantee's having possession of the deed — or of the premises con- sistently with the tenor of the deed — constitutes primd facie evidence, upon which the jury may presume that the deed was delivered : Porter v. Cole, 4 ^le. 25 ; Ward v. Lewis, 4 Pick. 520 ; Mills v. Gore, 20 lb. 28 ; Games v. Stiles, 14 Pet. 322; Collins v. Parker, 1 Strobh. 25; Houston v. Staunton, 11 Ala. 412; M'Kinneyr. Khoads, 5 Watts, 343; Rigler v. Cloud, 14 Pa. St. 364; Blight V. Schenck, 10 lb. 285 , Gardner i;. Collins, 3 Mason, 401. So, where a deed was left in the hands of the magistrate before whom it was acknowledged, and was afterwards taken away by the brother of the grantee for him, this was held sufficient evidence to go to the jury, from which they might presume delivery : Arrison v. Harmstead, 2 Pa. St. 191 ; while, on the other hanH^ if the deed were put into the post-office, directed net to the grantee no' his 12 LECT. I ] ON CONTRACTS BY DEED. 8 termed, and an escrow (a). An escrow is a deed deliv- ered conditionally to a third person, to be delivered to (a) Shepp. Touch. 58. agent, but to an agent of the grantor, it would be error to leave the question of delivery to the jurv, as there would be no evidence from which delivery could be presumed : Elsey v. Metcalf, 1 Denio, 323 ; White v. Baily, 14 Conn, 271. So, where there were neither acts done nor words spoken from which a delivery could be inferred, and the possession of the deed by the party seeking to take advantage of it was accounted for by his having taken possession of all the papers of the grantor after his death, it was held error to leave the ques- tion of delivery to the jury: Clayton v. Liverman, 4 Dev. & Bat. 238. It was suggested by the English editor that the qualifications adopted in Doe V. Knight had been overlooked by the more recent authorities, and that the doctrine of that case has been of late more broadly laid down. But it is believed that they do not either narrow or enlarge the rules adopted in that case, being (with but one exception, Grudgeon v. Gerrard) cases of voluntary settlements in favor of near relatives, or the like, sought to be enforced in equity, as to which, it has been repeatedly held, that Courts will go farther in the presumption of a delivery than in ordinary cases of conveyance : Bryan i; Wash, 2 Gilm. 557 ; Brown v. Brown, 1 W. & M. 325 ; Souverbye v, Arden, &c. In Fletcher v. Fletcher, 4 Hare, 67, cited by him, a testator executed a voluntary covenant with trustees, that in case his two natural sons should sur- vive him, his executor should pay to the trustees £GO,000 for such of the sons as should be living at the time of his death. This instrument, which pur- ported to be regularly executed, was found among the testator's papers some years after his death, and upon a bill filed by the surviving son to have the covenant enforced, the stress of the argument was laid upon the deed being voluntary, executory, and testamentary, and as such revoked by the subsequent will ; and Vice-Chancellor Wigram, after answering these objections, said, "The only other question arises from the circumstances of the instrument hav- ing been kept in the possession of the party ; does that affect its legal validity ? In the case of Dillon v. Coppin, 4 Myl. & Cr. 6G0, I had occasion to consider that subject, and I took pains to collect the cases upon it. The case of Doe v. Knight shows, that if an instrument is sealed and delivered, the retainer of it by the party in his possession does not prevent it from taking effect. No doubt the intention of the parties is often disappointed by holding them to be .bound by deeds which they have kept back, but such unquestionably is the law." The cases thus referred to were Barlow v. Heneage, Prec. Ch. 211; Lady Hudson's Case, lb. 235 ; Clavering v. Clavering, 2 Vernon, 473, Dom. Proc, 1 Bro. P. C. 122; Broughton v. Broughton, 1 Atkyns, 625; Doe v. Knight, Sear v. Ashwell, 3 Swans. 411 ; Worrall v. Jacob, 3 Meriv. 256; and Exton V. Scott, 6 Sim. 31 ; the first four of which were all cited and reviewed in Doe v. Knight, and the language used in that case by Sir John Bayley, and q loted supra, was cited by Mr. ^Vigram at length. In looking at the cases in equity upon this heaf], much will be found to turn upon the nature of the instrument, and the purpose for which it was in- tended : Bryan v. Wash, 2 Gilm. 557 ; Souverbye v. Arden, &c. Thus, in 13 8 ON CONTRACTS BY DEED. [lECT. I, tlie person for whose benefit it purports to be, on some condition or other. If that condition be performed, it Ward V. Lamb, Prec. Ch. 182, the Court refused to decree the giving up of a voUintary bond made to a daughter, to piotect the obligor from taxation, and retained by hhi ; and in Cecil v. Butcher, 2 Jac. & W. 573, the Court re- fused to enforce a conveyance made (and retained) by a father in favor of a son in order to give him a qualification to kill game, and the Master of the Rolls, after viewing the authorities, said, " They have not depended solely upon the question whether the party has made a voluntary deed ; not merely upon whether having made it, he keejjs it in his own possession ; not merely upon whether it is made for a particular purpose ; but when all these cir- cumstances are connected together, when it is voluntary, when it is made for a purpose that has never been completed, and when it has never been parted with, then the courts of equity have been in the habit of considering it as an imperfect instrument :" Ward v. AVard, 2 Hayw. 226 ; Jackson v. Inabnit, 2 Hill Ch. 41 1 ; Kirk v. Turner, 1 Dev. Ch. 14. The acceptance by the grantee of a deed is as essential to its validity as its delivery by the grantor. It rests, however, upon much stronger presumption where the deed purports to confer a benefit, and an actual acceptance need not then be shown in the first instance, either by the grantee himself, or any one beneficially interested under it : Butler and Baker's Case, 3 Co. 26 b ; Thomp- son V. Leach, 2 Ventr. 202 ; Hatch v. Hatch, 9 Mass. 307 ; Belden v. Carter, 4 Day, 66; Church v. Gilman, lo Wend. 656; Reed v. Marble, 10 Paige, 409; Tate V. Tate, 1 Dev. & Bat. (Eq.) 22 ; Halsey v. Whitney, 4 Mason, 206. The presumption is, of course, however, liable to be rebutted, and it will be nearly, if not quite, overthrown in cases where the acceptance of the deed confers no benefit, or inflicts a positive harm upon the other party : Jackson v. Bodle, 20 Johns. 184 ; Camp v. Camp, 5 Conn. 300 ; Renfro v. Harrison, 10 Mo. 411. How far the relation back of the subsequent acceptance to the original delivery will aflfect the attaching of intermediate interests, is a question of some practical importance. In Wilt v. Franklin, 1 Binn. 502, the rights arising under an execution levied between the period of delivery of an assign- ment for creditors, and assent by the grantee — a space of four days, — were postponed to those arising under the deed : Men-ills v. Swift, 18 Conn. 257, was very similar to Doe v. Knight. A debtor being in failing circumstances exe- cuted a mortgage, and delivered it to one for the use of the mortgagee. The mortgage was immediatelv recorded, and, some time after, w^as assented to by the mortgagee, and it wa.s held to be entitled to a preference over an interme- diate attachment. In Harrison v. The Trustees of Phillips' Academy, 12 Mass. 455, where an embarrassed debtor made a conveyance to his sureties by way of precautionary indemnity, of which they were ignorant till a month afterward, when it was assented to by them, it was said by Parker, C. J., that creditors might have arrested the transaction bv an execution levied in the intermediate time; but there was a question of fraud in the case, evidence of which would, it is conceived, always invalidate such a transaction; and the remarks on Wilt V. Franklin in M'Kinney v. Rlioads, 5 Watts, 343, were directed to the want of 14 LECT. I.] ON CONTRACTS BY DEED. 8 becomes an absolute deed ; till then it continues an escrow, and, if the condition never be performed, it never becomes a deed at all. Thus, at a meeting for delivery in that case, apart from which, it is said, that tJie decision is perfectly correcl. Where, moreover, a deed is delivered as an e-scroic, although, as is Btated in the text, it relates back to the time of the original delivery : Foster V. Mansfield, 3 Met. 412; Ruggles v. Lawson, 13 Johns. 2S5; yet it must be borne in mind that this is for certain purposes only — that this fiction is re- sorted to in cases of necessity, to prevent injury and uphold the deed; as, for instance, where a feme sole delivers a deed as an escrow, and marries before the condition is performed, it is her deed from the first delivery, as otherwise her marriage v.'ould defeat it: Perkins, 139-140; "for in such case from neces- sity, and ul res mngis valeat quam pereat, to this intent by fiction of law, it shall be a deed ab initio, and yet in truth it was not her deed until the second de- livery :" Butler and Baker's case, 3 Co. 36 a. Hence, in accordance with the maxim, in fictione juris semper equiias exislat, such relation back will not operate to defeat the rights of third persons attaching in the interval : Frost v. Beek- man, 1 Johns. Ch. 288 ; Green v. Putnam, I Barb. 504 ; Lewis r. Taylor, liil. Ch. 179; Carr v. Iloxie, 5 Mason, 60 ; Merrills r. Swift, sw/ira ; and thus in Jackson v. Rowland, 6 Wend. 666, where a deed was delivered as an escrow, and previously to its subsequent absolute delivery a judgment was obtained against the grantor, under which the land was sold, it was held that the pur- chaser under this judgment took a good title to the land ; and so in Shirley's Lessee v. Ayres, 14 Ohio, 307. W^here a deed is rejected by the grantee, the title revests in the grantor, pro- vided the dissent be made by the party really in interest. Thus, where a con- veyance was to A. to the use of B., A.'s dissent was not allowed to defeat the use limited to B. : Gorton's case, 2 Roll. Ab. 7S9, pi. 7. In these cases of re- iection the question also arises as to intermediate interests and estates created by the deed. In Thompson v. Leach, 2 Ventr. 198, it was finally held in the House of Lords, reversing the judgments below, that a deed of surrender by tenant for life to a remainderman, barred intermediate contingent remainders, though the grantee rejected the deed when he knew of it ; and in Read v. Rob- inson, 6 W. & S. 329, a debtor executed a general assignment for the benefit of his creditors, and delivered it to one of his sons, with instructions to take it to one Ward, who had been making out his father's accounts. Ward took the deed to the assignee, who refused to receive it, and said he would have notli- ing to do with it. An assignee was then appointed by the Court, who brought trover against the executor of the grantor's will, executed after the assignment. The Court below ordered a nonsuit, on the ground of the refusal of the as- signee ; but this judgment Avas reversed by the Supreme Court, which held, that although by the rejection the title might have been remitted to the grantor in case the grantee were the party beneficially interested, yet that the instrument being a trust for creditors, the latter were the parties in interest, and that by the transmission of the deed for acceptance to the assignee, the title in- stantly passed at law, and it could not be divested by the subsequent disagree- 15 8 ON CONTRACTS BY DEED. [lECT. I. executing a composition deed for performance of which the defendant was to be surety, it was signed and sealed by him ; but it had been previously agreed that the deed should not be operative unless all the creditors r^Q-i sealed it, and it was then delivered "'to one of the creditors, in order that he might get it executed by the others. This he failed to effect, and in an action against the defendant the deed was held to be a mere escrow (b). And even where a subscribing wit- ness to a bond stated that it was attested, sealed, and delivered in the usual way, no other words than those which are usual on the execution of a bond being used by the defendant when he executed the instrument, but that before and at the time of the execution it was agreed that it should remain in his (the subscribing witness's) hands, until the death of Lord Stair, and until certain promissory notes were given up, and that the bond was placed in his hands upon that condition, the Court held that it was a question of fiict upon the whole evidence whether the bond was delivered as a deed to take effect from the moment of delivery, or whether it was delivered upon condition that it was not to operate as a deed until the death of Lord Stair, and until the (6) Johnson v. Baker, 4 B. «& Aid, (6 E. C. L. E.) 440. ment by the assignee; thus showing, as was said by the Chief Justice, in speaking of Thompson v. Leach, "that intermediate interests may fasten on the title, which it is not in the power of the grantee's disagreement to unclasp." It has been suggested by Professor Greenleaf, in his edition of Cruise on Real Property (tit. xxxii, ch. 1, ^ 25, note), that Thompson v. Leach was not the case of the grant of an estate from the absolute owner to a stranger who had no previous interest in it, but it was the annihilation of a particular estate in favor of a person to whom, on the termination of that estate, at that time by what mode soever, the whole property would belong by its original limi- tation, and that the case of Read v. Robinson was rather decided upon a local statute, authorizing the Court, in case of renunciation or refusal of a trustee, to appoint a new one in his place. The Court did not, however, rest its de- cision wholly on that ground. — B. 16 LECT. I.] ON CONTKACTS BY DEED. 9 notes were delivered up (c). At a new trial of the case, the Lord Chief Justice, Lord Tenterden, told the jury that if the instrument was delivered as the deed of the defendant binding on him at the time, although it was delivered on the faith and confidence which he reposed in the attesting witness (who was his *attorney), p-^tirv-i that he would not part with it until the death of Lord Stair, and until the notes were delivered up, it immediately became the defendant's deed. And al- though the witness in fact parted with it before Lord Stair's death, and before the delivery up of the notes, in violation of the trust reposed in him, it was still the defendant's deed. But if the delivery itself at the ti7ne was conditional, so as not to constitute any present obli- gation, it was an escrow or writing merely, and not a deed, and the condition of the delivery having been broken it had never become the deed of the defendant. But in order to make the delivery conditional, it was not necessary that any express words should be used at the time ; the conclusion was to be drawn from all the circumstances. It obviated all question as to the inten- t^ion of the party, if at the time of delivery he ex- pressly declared that he delivered it as an escrow ; but that was not essential to make it an escrow. And, there- fore, where a deed executed by one party is sent to the agent of the other in a letter explaining that it is executed only on condition of a counterpart being executed by the latter, such evidence has been con- sidered sufficient to show that it was sent only as an escrow to take effect after execution of the counter- part {(I). (c) Murray t-. E. of Stair, 2 B. & C. (9 E. C. L. E.) 82; Xenos v. Wick- ham, 33 L. J. (C. P.) 13, (Ex (;h.) ; 13 C. B. N. S. (106 E. C. L. K.) 435; L. R. 2 H. L. 296 ; 36 L. J. (C. P.) 313. (d) Furness v. Meek, 27 L. J. (Ex.) 34. See Millership v. Brookes, 5 H. & N. 797 ; 29 L. J. (Ex.) 369. 2 17 10 ON CONTRACTS BY DEED. [lECT. I. This conditional delivery must be to some third r*1 1 1 *P^^so^ j ^or, if it were to the party himself who is to be benefited the deed would become absolute, though the party delivering were to say in express terms that he intended it to be conditional only ; for it is impossible by words to get rid of the legal operation of the delivery (e) ; and, therefore, where the defendant in debt on a bond endeavoured to set up a delivery as an escrow to the obligee himself, the Court thought that the plea was so clearly bad, that they would not hear any argument upon the subject. But the delivery to the solicitor of the grantee of an instrument executed by the grantor, will not convert the instrument from an escrow into a deed, provided the delivery is of a charac- ter negativing its being a delivery to the grantee (/). Although, however, where the deed is delivered to a third person as an escrow, the delivery is, as 1 said, con- ditional ; yet when the condition has been performed, it becomes absolute and takes effect, not from the date of performing the condition, but from the date of the original delivery ; so much so, that it has been held, that where a bond was delivered upon condition, and the obligor and obligee were both dead before the condi- tion was performed, yet, on that event happening, it be- came the deed of the deceased obligor, so as to create a charge upon his assets as against his representatives (g), P^.-l c)-] *It is therefore clear that in order to make a writing sealed and delivered an escrow merely, it is not necessary that express words should be used. You are to look at all the facts attending the execution, and to all that took place at the time, and, therefore, although it be in form an absolute delivery, if it can (e) Holford r. Parker, Hob. 24G ; and Co. Litt. 36 a. (/) Watkins V. Nash, L. R. 20 Eq. 2G2; 44 L. J. (Cli.) 505. {y) See Graham v. Graham, 1 Ves. jun. 272 ; Froset v. Walsh, Bridg. 51. ■ 18 LECT. I.] OX CONTRACTS BY DEED. 12 reasonably be inferred that the writing was not to take effect as a deed till a certain condition should be per- formed, it will operate as an escrow {h.y (A) Bowker v. Burdekin, 11 M. & W. 128; Gudgen v. Besset, 26 L. J. (Q. B.) 36 ; 6 E. & B. (88 E. C. L. R.) 986 ; See Pyra v. Campbell, 25 L. J. (Q. B.) 277 ; 6 E & B. (88 E. C. L. R.) 370 ; Watkins v. Nash, supra. ^ The point decided in Bowker i'. Burdekin was, that a deed which was executed as an absolute conveyance, would not the less l)e an act of bank- ruptcy, becau<«.<, on looking at the form of the deed, the conclusion might pos- sibly be como »o that the parties did not contemplate that the deed should operate as an &(.t of bankruptcy unless tlie whole partnership effects were con- veyed. The remark cited supra was said by Baron Parke to be the result of tlie cases of Johnson v. Baker, 4 B. & Al. (6 E. C. L. R.) 440 ; and ^Murray r. The Earl of Stair, 2 B. & C. (9 E. C. L. R.) 82, in both of which cases the in- strument was not delivered to the party interested, but left with a stranger ; and it must not be inferred, from the remark in Bowker v. Burdekin, that a deed purporting to be absolute, and delivered to a party, can by parol evidence be shown to have been conditional, as the contrary was expressly held in Ward v. Lewis, 4 Pick. 520, where an insolvent debtor having executed an assignment for the benefit of his creditors, which was found in the hands of the assignee it was held that the deed could not operate as an escrow, because the primd facie evidence was that it was delivered to the party, and that parol evidence was inadmissible to show that the assignment was meant to take effect only upon the assent of the majority of the creditors. — R. A deed can never be delivered to the grantee himself as an escrow; if in- tended to operate as such, it must be delivered to a third person for him : Jordan v. Pollock, 14 Ga. 145; Firemen's Ins. Co. v. M'Millan, 29 Ala. 147 ; Thoraason v. Dill, 30 Ala. 444; Duncan i-. Pope, 47 Ga. 445. If delivered to the grantee, no matter what may be the form of the words accompanying the act, the delivery will be absolute: Dawson v. Hall, 2 Mich. 390; [Williams v. Iliggins, 69 Ala. 517. This rule does not apply to deeds which upon their face import that something more is to be done besides delivery to make them com- petent and perfect contracts according to the intention of the parties: Wend- linger v. Smith, 75 Va. 309.] It is not admissible to show, by parol evidence, that a deed was delivered to the party, on any condition contrary to the terms of the instrument : Worrall v. Munn, 1 Seld. 239 ; Warren v. Miller, 38 Me. 108; Black r. Shreve, 13 N. J. Eq. 455; Braman v. Bingham, 26 N. Y. 4S3. [But the manual delivery of a deed will not be regarded as a full and com- plete delivery when it is mutually understood at the time between grantor and grantee that such deed is not to become operative until some future event : Arthur v. Anderson, 9 So. Car. 234; Eraser v. Davie, 11 lb. 56.] An uncon- ditional delivery of a deed to a third person for the use of the grantor, and the acceptance implied by bringing suit upon it, will constitute a sufficient de- livery, and the acceptance may be presumed from the beneficial nature of the transaction: Tibbals r. Jacobs, 31 Conn. 423 ; Guard v. Bradley, 7 Ind. 600; Wall V. Wall, 30 Miss. 91; Stewart v. AVeed, 11 Ind, 92; Jones v. Swayze, 19 12 ON CONTRACTS BY DEED. [lECT. I. Such, then, being the essentials of a deed — writing^ on paper or parchment, sea/m^, and delivery — it is right to add, that, for the sake of convenience, deeds are divided into two classes. Deeds Poll, and Indentures, a Deed Poll being made by one party only, an Indenture between two or more parties (i). The names indeed of Deed Poll and Indenture were, as you probably all know, derived from the circumstance that the former (i) Co. Litt. 35 b. ; Shepp. Touch. 60. Williams, Eeal Property, p. 156, 14th ed. 42 N. J. L. 279 ; Campbell v. Kuhn, 45 Mich. 512. To make the delivery of a deed effectual the grantor must part with all control. He cannot reserve to himself the power of recalling it; if he does so, the delivery is ineffectual: Cook u. Brown, 34 N. H. 460; Brown u. Austen, 35 Barb. 341. Any act or words, by which a grantor indicates an intention to deliver a deed is primd facie a delivery : Mallett v. Page, 8 Ind. 364 ; Dearmond v. Dearmond, 10 lb. 191 ; Stevens v. Hatch, 6 Minn. 64. If a bond intended as an escrow be delivered by the obligor to the obligee, on an agreement that the latter will hand it to a third persofi as depository, it will operate as an escrow : Brown V. Reynolds, 5 Sneed, 639. So tlie delivery of the deed to the grantee for examination is no delivery: Graves v. Dudley, 20 N. Y. 76. So to await execution by another party : Brackett v. Barney, 28 lb. 333. For other cases on tlie subject of escrows see Chandler v. Chandler, 21 Ark. 95 ; Dyson v. Bradshaw, 23 Cal. 528 ; Berry v. Anderson, 22 Ind. 36 ; Loubat v. Kipp, 9 Fla, 60; Hathaway v. Payne, 34 N. Y. 92; Fitch v. Bunch, 30 Cal. 208; Resor v. Oliio Co , 17 Ohio St. 139 ; Abbott v. ALsdorf, 19 Mich. 157 ; Demesmey v. Gravelin, 56 111. 93 ; Stanton v. Miller, 65 Barb. 58 ; Roberts v. Mullenix, 10 Kan. 22.— s. Even in the case t>f an ♦'scrow tliere must be an actual delivery — the grantor must part with control <)f the deed : Campbell v. Thomas, 42 Wis. 437. Although in the case of in escrow the estate does not pass until the second delivery, yet, sometimes, to prevent a failure of justice (as wliere the grantor dies before the second delivery), the deed will be held to relate back to the first delivery : Harkreader v. Clayton, 56 Miss. 383 ; < 'rooks v. Crooks, 34 Ohio St. 610. A third person who, according to the grantor's contract, has tendered a deed which the grantee has refused to accept, thenceforth holds the same as the depository of both parties, according to their respective rights; Adams v. Smilie, 50 Vt. 1. A fraudulent delivery by tlie depositary of a deed deposited as an escrow will not operate to pass the title even to a subsequent iona /de purchaser : Cotton v. Gregory, 10 Neb. 125; Clements v. Hood, 57 Ala. 459; Cressinger v. Dessenbury, 42 Mich. 580; Robbins v. Magee, 76 Ind. 381 ; White v. Core, 20 W. Va. 272. ^ Or, of course, printing : 2 Blackstone, *297 ; Leake, Digest of the Law of Contracts, 135. 20 LECT. I.] ON CONTRACTS BY DEED. 12 was shaved or polled, as the old expression was, smooth at the edges, whereas the latter was cut or indented with teeth like a saw ; for, in the very old times, when deeds were short, it was the custom to write both parts on the same skin of ^parchment, and to write a word in p^^ o-i large letters between the parts ; and then, this word being cut through saw fashion, each party took away half of it ; and if it became necessary to establish the identity of the instruments at a future time, they could do so by fitting them together, whereupon the word became legible (k). However, this, though the origin of the word indenture, has become a mere form ; and though, as you are all aware, such instru- ments are still indented by nicking the edge of the parchment, not teethwise, but in an undulating line, that is a mere form, and might (as it was said) (/) be done in Court during the progress of a trial if it had been forgotten till then. Now, however, it is expressly en- acted (m), " that a deed executed after the 1st day of Octo- ber, 1845, purporting to be an indenture, shall have the effect of an indenture, although not actually indented." There are one or two peculiarities of contracts made by deed, which as they apply to all contracts so made, this is the proper place to notice. In the first place, a contract by deed requires no con- sideration to support it (ri) ; or perhaps it might be more correct to say, as a general proposition, that the law con- clusively presumes that it is made *upon a good and suflicient consideration (o).^ The import- ^ -■ {k) Co. Litt. 229 a ; 2 Bl. Comm. 295. [1) Bac. Abr. Leases, E. 2, note. But see 54 Geo. III. c. 96. (m) 8 & 9 Vict. c. 106, s. 5. (n) Shubrick t'. Salmond, 3 Burr. 1639. (o) Cooeh V. Goodman, 2 Q. B. (42 E. C. L. R. ) 590. * The proposition in italics was properly qualified by the lecturer iu the 21 14 ON CONTEACTS BY DEED. [lECT. T. ance of this arises from the strong line of distinction it creates between Contracts by Deed and Simple Contracts. For a simple contract, that is, a contract by words or by writing not under seal, requires, as I shall hereafter have occasion to explain more at length [p), a considera- tion to support it and give it validity. For instance, suppose a written promise in these words : — " I, A. B., promise C. D. that I will pay the debt he owes to E. F." This promise would be absolutely void unless it could be shown to have been made in consideration of something given or granted to A. B. for making it ; for it would be a promise by him to undertake a liability without any consideration or recompense whatever ; and, if he neglected to perform it, no action would lie against him, for the maxim, ex nudo pacto non oritur actio, would in- tervene for his protection. But, if to that very instru- ment, conceived in those very words, tlie additional solemnity of sealing and delivery were added, so as to make it a deed, it would become a good and binding covenant on which an action might be supported {q) ; (p) Lects. IV, V. Iq) See Fallowes v. Taylor, 7 T. E. 475. remainder of tlie sentence. At common law no consideration was requisite to the validity of a deed, but since the introduction of conveyances taking effect by virtue of the Statute of Uses, courts of equity, and then courts of law, have held a consideration necessary to support such an instrument. It need not be expressed in the deed, but may be proved. But if expressed, the language of the instrument, so far as the legal effect of the deed is concerned, is conclusive (Preston on Abstracts, 14), and although in America, there is a numerous class of cases deciding that the consideration may, by parol, be shown to be greater or less, than is expressed (see infra, note 1, to page *21), yet on neither side of the Atlantic is such evidence admitted to defeat the legal eflfect of the deed as between the parties: Wilt v. Franklin, 1 Binn. 502; Hurn V. Soper, 6 Harr. & J. 276. Where the rights of creditors step in, the rule is different: Preston, sitpra; 1 Am. Lead. Cases, 1. This is merely men- tioned, in order that conclusions might not be drawn from the text which the lecturer did not mean to convey, and on page *165, ivfra, he refers to the sub- ject again. It may be here observed that there is another class of instruments which prlmd facie presume a consideration equally Avith specialties, viz.: negotiable instruments. See Mr. Smith's remarks, infra, *I81. — b. 22 LECT. I.] ON CONTRACTS BY DEED. 14 and this is on account of the greater formality and solemnity of such an instrument {r.y The reason of these different rules *cannot be better expressed than in the words of Plowden : — " There are ^ J two ways of making contracts or agreements for lands and chattels. The one is by words, which is the inferior method, the other is by writing (^. e., by Deed), which is the superior, and because words are oftentimes spoken by men unadvisedly and without deliberation, the law has provided that a contract by words shall not bind without consideration. As if I promise to give £20 to make your sale de novo, here you shall not have an ac- tion against me for the £20, as it is affirmed in 17 Ed- ward IV., for it is a nude pact, et ex nudo pacto non oritur actio. And the reason is, because it is by words which pass from men lightly and inconsiderately ; but where the agreement is by deed, there is more time for delibera- tion. For when a man passes a thing by deed, first there is the determination of the mind to do it, and upon that he causes it to be written, which is one part of de- liberation, and afterwards he puts his seal to it, which (r) See Sharington v. Strotton, Plowd. 308 a; Cruise, Dig. tit. xxxii. c. 11, 6s. 54 and 55. * Thus in Kennedy v. Ware, 1 Pa. St. 445, the Court refused to give effect to an unsealed assignment of a judgment, intended as an advancement to the assignor's daughter, on the ground that although natural love and aflection were sofficient in a sealed instrument to raise a use, yet that they of them- selves formed no consideration to support a mere parol gift. — r. Though in a contest with creditors a bond or conveyance without considera- tion is void, yet it is not so as between tlie parties. It may be, and often is, an element in the question of actual fraud or duress. "What efibct has want of consideration by the common law, in regard to a bond or a judgment? Cer- tainly none to destroy the conclusiveness of the seal or of tlie recovery, A voluntary bond is, both in equity and at law, a gift of the money :" Gibson, C. J., in Sherk v. Endress, 3 W. & S. 255 ; Harrell v. Watson, G3 N. C. 454 ; Parker v. Flora, lb. 474 ; Harris v. Harris, 23 Gratt. 737. A voluntary bond from a father to his child, though it must be postponed to creditors, yet is good against heirs, legatees and all who stand in no higher equity than the obligor himself: Candor & Henderson's Appeal, 27 Pa. St. 119; Carter v. King, 11 Rich. Law 125. — s. 23 15 ON CONTRACTS BY DEED. [lECT. I. is another part of deliberation, and lastly, be delivers the writing as bis deed, wbich is the consummation of his resolution ; and by the delivery of the deed from him that makes it to him to whom it is made, he gives his assent to part with the thing contained in the deed to him to whom he delivers the deed, and this delivery is as a ceremony in law signifying fully his good will that the thing in the deed should pass from him to the other. So that there is great deliberation used in th© mak- ^, ^_, iua; *of deeds, for which reason they are received r 161 . . '- -^ as a lien final to the party, and are adjudged to bind the party without examining upon what cause or consideration they were made. And, therefore, in the case jDut in 17 Edward IV., put it thus, that I by deed promise to give you £20 to make your sale de novo ; here you shall have an action of debt upon this deed, and the consideration is not examinable, for in the deed there is a sufficient consideration, viz., the will of the party that made the deed. And so where a carpenter, by parol, without writing undertook to build a new house, and for not doing it the party in 11 Henry IV. brought an action of covenant against the carpenter. There it does not appear that he should have anything for building the house, and it was adjudged the plaintiff should take nothing by the writ. But if it had been by speciality it would have been otherwise. So that where it is by deed, the cause or consideration is not in- quirable, nor is it to be weighed, but the party ought only to answer to the deed, and if he confesses it to be his deed he shall be bound, for every deed imports in itself a consideration, viz., the will of him that made it, and, therefore, where the agreement is by deed, it shall never be called a nudum pactum. And in an action of debt upon an obligation, the consideration upon which the party made the deed is not to be inquired, for it is 24 LECT. I.] ON CONTRACTS BY DEED. 16 sufficient to say that it was his will to make the *deed " (s). Thus, although a promise to make a woman an allowance for her maintenance in ^ -^ consideration of past seduction is invalid, past seduction being, for reasons given in another place {t), no con- sideration in law ; yet, inasmuch as an instrument under seal is good without any consideration, a bond for main- tenance founded on previous seduction is good (u)} There are, however, some deeds deriving their effect from the Statute of Uses (x), that is, a bargain and sale, and a covenant to stand seized to uses, both of which are void without a consideration ; the first requir- ing a pecuniary one, and the latter a consideration of blood or marriage (y).^ Contracts in restraint of trade (s) Plowd. 308, supra. (t) Post, Lect. v., " Moral Considerations." (m) Turner v. Vaughan, 2 Wils. 339; Nye v. Mosely, 6 B. «& C. (13 E. C. L. R.) 133. (x) 27 Hen. VIII. c. 10. (y) Sheep. Touch. 510; 2 BI. Comm. 338. ^ The seduction of an innocent woman by a pretended marriage is a valuable consideration for a deed subsequently made to her and her children: Doe v. Horn, 1 Ind. 363. This was a case in which the question arose as to creditors, and, of course, as to them, being third parties, the seal was unimportant. A seal does not protect an illegal contract founded on a consideration, contra bonos mores: Gray v. Hook, 4 N. Y. 449. There is one American case which accords with the doctrine that past cohabitation is not a good consideration to support a promise : Singleton v. Bremar, Harp. 201. But Shenk v. Mingle, 13 S. & R. 29, rules expressly the contrary. — s. ' Prior to the passage of the Statute of Uses it was the rule that any convey- ance made without consideration passed the property to the grantee, but to the use of the grantor. That statute, in the language of Blackstone (Book II., p. 333), "executes the use, as our lawyers term it; tliat is, it conveys the possession to the use, and transfers the use into possession, thereby making cestuy que use complete owner of the lands and tenements, as well at law as in equity." Hence it is essential that in the case of a covenant to stand seized to uses it shall be expressed to be made in consideration of blood or marriage, and in a deed of bargain and sale, the conveyance be either for a consideration expressed in the deed, or that it shall be made to the grantee and his heirs to and for the use of the said grantee and his heirs. Practically, it is customary to express in an ordinary deed that it is made to the use of the grmtee and his heirs, as well as to them; and that it is for a 25 17 ON CONTRACTS BY DEED. [lECT. I. also are void, if made without consideration, although under seal {z). But here, again, you must observe another well-known and important distinction, namely, that though it is not necessary to show on what consideration a deed is founded, a party sued on it is always, on his part, allowed r*1 Rl ^^ show that it was *founded on an illegal or im- moral consideration, or that it was obtained by duress or by fraud ; for, were the law otherwise, deeds would, lo use the expression of Lord Ellenborongh (a), be made use of as covers for every species of wickedness and ille<'ality. It is therefore a well-established pro- position, that a deed may be invalidated by showing that it is tainted by such circumstances {b). And it signifies not whether the illegality objected to it be a breach of the rules of common law, or consist in the con- travention of the provisions of some statute, or whether the prohibition of the statute be expressed in direct terms, or be left to be collected from a penalty being inflicted on the offender (c). Thus, in Collins v. Blan- {z) Mitchell v. Reynolds, 1 P. Wms. 181. See Wallis v. Day, 2 M. & W. 277; Horner v. Graves, 7 Bing. (20 E. C. L. R.) 744; Hutton v. Parker, 7 Dowl. 739; Mallan v. May, 11 M. & W. 665; Tallis v. Tallis, 22 L. J. (Q. B.) 185; 1 E. & B. (72 E. C. L. R.) 39; Collins v. Locke, 4 App. Cas. 674; 48 L. J. (P. C ) 68. (a) Paxton v. Popliam, 9 East, 421. (6) See Collins v. Blantern, 2 Wils. 341 ; 1 Smith, L. C. 387, 8th ed. (c) Bartlett v. Vinor,Carth. 251 ; Cundell v. Dawson, 4 C. B. (56 E. C. L. R.) 376; Ritchie v. Smith, 6 C. B. (60 E. C. L. R.) 462; Copet>. Rowlands, 2 M. «& W. 149; M'Kinnel v. Robinson, 3 M. & W. 434. pecuniary consideration. It has been held in some cases that this is essential ; but the established rule seems to be that any valuable consideration is sufficient lo support a deed of bargain and sale. It may be expressed in the deed or proved aliunde, and if a consideration be expressed, something different, pro- vided it be not inconsistent, may be shown to have been the actual considera- tion. It is always competent to show that the consideration was something different from that which is stated, or that it has not in fact been paid, for any purpose except to affect the validity of the deed as a conveyance of title. For that purpose the acknowledgment of consideration in the deed is conclusive. See Williams, Real Prop. *188 ; 2 VVashburne, Real Prop. *613 ; note 1, p.*21, infra. 26 LECT. I.] ON" CONTRACTS BY DEED. 18 tern/ the consideration was the compromise of an indict- ment for perjury; in Coppock v. Bower {d), the compro- mise of an election petition ; in Hindley v. M. of West- meath {e), a future separation between husband and wife (/). In these cases the illegality consisted in the infringement of the rule of the common law, which looks upon such contracts as ^improper. In r^in-i other cases, as I said, the contravention of a stat- ute has been held equally fatal : as, of the statutes against gaming {g) ; of the Acts for licensing playhouses (h); of the stat. 6 Anne, c. 16, for requiring brokers acting within the city and liberties of London to procure them- selves to be admitted by the Lord Mayor and Alder- men (i).^ And a great variety of examples might be (d) 4 M. & W. 361. (e) 6 B. & C. (13 E. C. L. R.) 200. (/) See Jones v. Waite, 5 Bing. N, C. (35 E. C. L. R.) 341, 4 M. & Gr. (43 R C. L. R.) 1104, in Dom. Proc; Wilson v. Wilson, 23 L. J. (Ch.) 697. (g) Colborne v. Stockdale, Str. 493; Mazzinghi v. Stephenson, 1 Camp. 291. See M'Kinnel v. Robinson, 3 M. & W. 434, which, however, was a simjile con- tract. (h) Levy V. Yates, 8 A. & E (35 E. C. L. R.) 129. See De Begnis v. Armi- Btead, 10 Bing. (25 E. C. L. R.) 110, per Tindal, C. J. (i) Cope V. Rowlands, 2 M. & AV. 149. ^ And see the notes to that case in 1 Smith's Leading Cases, 8th Am. ed. — s. * " Every contract," said Lord Plolt, in Bartlett v. Viner, Carth. 2o2, " made for or about any matter or thing which is prohibited and made unlawful by any statute, 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 im- plies a prohibition, though there are no prohibitory words in the statute;" and although attempts have been at times made to consider these words as mere dicta, yet the rule thus stated has been repeatedly enforced : Nerot v, Wallace, 3 T. R. 17; Mitchell v. Smith, 1 Binn. 110; Foster v. Taylor, 5 B. & Ad. (27 E. C. L. R.) 887 ; Cope v. Rowlands, 2 M. & W. 158 ; though with respect to cases depending upon the English revenue laws, there appears to be a little discrepancy of decision as to whether those acts intended to vitiate the contract, or to impose a penalty, for the purposes of the revenue, on the party offending: Johnson v. Hudson, 11 East, 180; Brown v. Duncan, 10 B. & C. (21 E. C. L. R.) 93 ; Wetherell v. Jones, 3 B. & Ad. (5 E. C. L. R ) 221 ; Cope V. Rowlands, 2 M. & Wels. 149; Smith v. Mawhood, 14 lb. 461. Some of these decisions are referred to in a case in the Supreme Court of the United States (Harris v. Runnels, 12 How. 79), where, as a defence to the 27 19 ON CONTRACTS BY DEED. [lECT. I. given, but these are sufficient to establish the ])rinciple that, though a man cannot defend himself from liability upon his contract made by deed, by saying that there was no consideration for it,^ lie may by saying that there "was an illegal one.^ And it must be observed, that a purchase-money of certain slaves, it was set up that no certificate liad been obtained previous to tlie bringing the shives into the State of Mississippi, that tliey had not been guilty of any crime, &c., as was required by a law of that ytate, which imposed a penalty of $100 for every slave so purchased and brought in ; and the Court, in holding the contract itself not vitiated by this statute, said, " We have concluded, before the rule can be applied in any case of a statute prohibiting or enjoining things to be done, with a prohibition and a penalty, or a penalty only for doing a thing which it forbids, that the statute must be examined as a whole, to find out whether or not the makers of it meant that a contract in contravention of it should be void, or that it Avas not to be so. In other words, whatever may be the structure of the statute in re- spect to prohil^ition and penalty, or penalty alone, that it is not to be taken for granted that the legislature meant that contracts in contravention of it were to be void, in the sense that they were not to be enforced in a court of justice. In this way the principle of the rule is admitted, without at all lessening its force, though its absolute and unconditional application to every case is denied. It is true that a statute, containing a prohibition and a penalty, makes the act which it punishes unlawful, and the same may be im- plied from a penalty without a prohibition ; but it does not follow that the unlawfulness of the act was meant by the legislature to avoid a contract made in contravention of it. When the statute is silent, and contains nothing from which the contrary can be properly inferred, a contract in contravention of it is void." — R. To determine whether a contract made contrary to the provisions of a penal statute is illegal and void, the statute must be considered as a whole to ascer- tain whether it was intended to have that eflTect: Vining v. Bricker, 14 Ohio St. 331. Such intent will be presumed unless the contrary can be fairly inferred : Bemis v. Becker, 1 Kans. 22G. Courts will not, even with consent of the parties, enforce a contract which is in violation of a statute, though not therein declared void: Fowler v. Scully, 72 Pa. St. 456. — s. ' Nor at common law would fraud be a defence to an action on a specialty, unless, indeed, the fraud related to the execution of the instrument : Vrooman r. Phelps, 2 Johns. 177; Rogers v. Colt, 21 N. J. 704; but in many of our States, the common law rule as to the solemnity of a seal estopping the obligor from any defence except those named, has been relaxed by statutory provi- sions, so as to entitle the obligor of a bond, under some restrictions, to show, by way of defence, its failure, as he formerly could have done its illegality of consideration. — R. ' The often-quoted remarks of Lord Mansfield upon this rule may bear repetition here. "The objection," said he, "that a contract is immoral or ill(;gal as between plaintiff and defendant, sounds at all times very ill in the 28 LECT. I.] ON CONTRACTS BY DEED. 19 contract, although not expressly i)rohibited by a statute, may be illegal, if opposed to the general policy and intent thereof, as if made to insure to one creditor of a bankrupt a greater share of his debt than the others can havH (k); or a contract made in order to enable another to infringe that policy and intent (/). These contracts are invalid, and cannot be sued upon, although r*oA-| *under seal. Even if there were several considera- tions, and any one of them was illegal, it avoids the whole instrument ; for it is impossible to say how much or how little weight the illegal portion may have had in inducing the execution of the entire contract (m). Though it is just the reverse where the consideration is good, and there are several covenants, some legal, some illegal : for then the illegal promises alone will be void, and the legal valid {n)} As when, upon a dissolution (k) Staines v. Wainewright, 6 Bing. N. C. (37 E, C. L. E.) 174, See Ex parte Oliver, re Hodgson, 4 De G. &. S. 354. {D M Kinnel v. Robinson, 3 M. & W. 434 ; De Begnis v. Armistead, 10 Bing. (25 E. C. L. R.) 110. (m) Waite v. Jones, 1 Bing. N. C. (27 E. C. L. R.) 662, per Tindal, C. J. ; Shackell v. Rosier, 2 Bing. N. C. (29 E. C. L. R.) 634; Howden v. Haigh, 11 A. & E. (39 E. C. L. R.) 1033. (n) Gaskell v. King, 11 East, 165 ; How v. Synge, 15 East, 440. mouth of the defendant. It is not for his sake, however, that the objection is ever allowed, but it is founded in general principles of policy, which the de- fendant has tlie 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 rum oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating, or otherwise, the cause of action appears to arise, ez turpi causa, or the transgression of a positive law of this country, then 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 plahitiff 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 ext conditio defendentis ;' " Holman v. Johnson, 1 Cowp. 343 ; Gray v. Hook, 4 N. Y. 449.— R. ' Where covenants, illegal as against public policy, enter into and form a part of the entire consideration of a contract and both parties are in fault, the 29 20 ON CONTRACTS BY DEED. [lECT. I. of partnership, one partner purchased the other's moiety, and the latter covenanted not to carry on a similar trade within the cities of London and Westminster, or within GOO miles thereof, the Exchequer Chamber held that the covenant was void as to the 600 miles, as an unreas- onable restraint of trade ; but good as to the cities of London and Westminster (o). The next quality of a contract by deed is its opera- tion by way of estoppel; the meaning of which is, that the person executing it is not permitted to contravene or disprove what he has there asserted, though he may do so where the assertion is in a contract not under seal. P^.f^-|-i A good example *of this is the case of a receipt. A creditor who has given a receipt not under seal is nevertheless permitted to prove that he has not received the money (p) ; but it is otherwise if the re- ceipt be by deed, for then the law admits no evidence to the contrary (q)} Such is the nature of what we call (o) Price v. Green, 16 M. & W. 346 ; Nicholls v. Stretton, 10 Q. B. (59 E. C. L. R.) 346. See also Robinson v. Ommaney, 21 Ch. Div. 780 ; 23 lb. 285 ; 51 L. J. (Ch.) 894; 52 lb. 440. (p) Graves v. Key, 3 B. & Ad. (23 E. C. L. R.) 313; Stratton v. Rastall, 2 T. R. 366 ; Farrer v. Hutchinson, 9 A. & E. (36 E. C. L. R.) 641 ; Bowes v. Foster, 27 L. J. (Ex.) 262 ; 2 H. & N. 779 ; Lee v. Lancashire and Yorkshire Kail. Co., L. R. 6 Ch. 527. {q) See the judgment of the Court in Fitch v. Sutton, 5 East, 230. contract is wholly void. A separation of the good consideration from that which is illegal will be attempted only in those cases in which the party seek- ing to enforce the contract is not the wrongdoer : Saratoga County Bank v. King, 44 N. Y. 87; Marsh v. Russell, 2 Lans. 340 [reversed 66 N. Y. 288]. A contract based in part upon an illegal transaction is void in toto ; but if based in part on a void transaction is void only yiro tanto : Doty v. Knox Bank, 16 Ohio St. 133 ; Bank v. Stegall, 41 Miss. 142. If part of a single consideration is illegal the whole promise fails: Chandler v. Johnson, 39 Ga. 85, and see Gelpcke v. Dubuque, 1 Wall. U. S. 221 ; Decker v. Morton, 1 Redf. Surr. 477 ; Kottwitz V. Alexander, 34 Tex. 689.— s. * The current of authority, however, on this side of the Atlantic, has much relaxed the strictness of the English cases on this subject. Thus it may be considered as settled, notwithstanding some early cases to the contrary, that evidence is admissible, either on the part of the grantor or the grantee, to 30 LECT. I.] ON CONTRACTS BY DEED. 21 an estoppel created by deed (r), the principle of whicli is explained by Taunton, J., in Bowman v. Taylor (s). "The principle," said his Lordship, "is not so unjust or absurd as it has been too much the custom to repre- sent. The principle is, that, where a man has entered into a solemn engagement by and under his hand and seal as to certain facts, he shall not be permitted to deny any matter he has so asserted." Therefore, for example, if a distinct statement of a particular fact is made in the recital of a bond or other instrument under seal, and a contract is made with reference to that recital, it is un- questionably true, that, as between the parties to that (r) Shelley v. Wright, Willes, 9 ; Hill v. Manchester and Salford Water- works, 2 B. & Ad. (22 E. C. L. E.) 544. (s) 2 A. & E. (29 E. C. L. K. ) 278. Bhow that the consideration named in the deed was really greater or less than is there expressed: Bullard v Briggs, 7 Pick. 533; Wade v. Merwin, 11 To. 288 ; Clapp v. Tirrell, 20 lb. 247 ; McCrea v. Purmort, 16 Wend. 460 (where many authorities are cited and commented on) ; Burbank v. Gould, 15 Me. 118; Belden i). Seymour, 8 Conn. 310; Meeker v. Meeker, 16 lb. 383; Beach v. Packard, 10 Vt. 96 ; Bingham v. Weiderwax, 1 N. Y. 509 ; Watson V. Blaine, 12 S. & R. 131 ; Jack v. Dougherty, 3 Watts, 158 ; Bolton v. Johns, 5 Pa. St. 145 ; Harvey v. Alexander, 1 Rand. 219 ; Wilson v. Shelton, 9 Leigh. 342; Curry v. Lyles, 2 Hill (S. C.) 404; Moore v. McKie, 5 Sra. & M. 238; unless such evidence is introduced, either directly or indirectly, for the pur- pose of defeating the operation of the instrument as a conveyance, as by showing it void for want of a sufficient consideration : Wilt v. Franklin, ] Binn. 502 ; Hurn v. Soper, 6 Harr. & J. 276. Thus a grantee may prove the expressed consideration to be greater, for the purpose of increasing his dam- ages on the covenants in the deed: Belden v. Seymour, 8 Conn. 310; while on the other hand the grantor may prove it less for the purpose of diminish- ing them: Morse v. Shattuck, 4 N. H. 229; Harlow v. Thomas, 15 Pick. 70.— R. See Murphy v. Branch Bank of Mobile, 16 Ala. 90 ; Den. v. Shotwell, 23 N.J. 465 ; In re Young's Estate, 3 Md. Ch. D. 461 ; Hammond v. Woodman, 41 Me. 177 ; Harwell v. Fitts, 20 Ga. 723 ; Farrington v. Barr, 36 N. H. 86 ; Thompson v. Allen, 12 Ind. 539. The consideration clause in a deed estops the grantor from denying that a consideration has been received. In all other respects, it is open to explanation or correction by parol evidence, and it may be shown that the consideration has not been actually paid, or that it has been overpaid by fraud or mistake : Goodspeed v. Fuller, 46 Me. 141 ; Irvine V. McKeon, 23 Cal.472; and see Carbreyj). Willis, 7 Allen, 364; Allen v. Allen, 45 Pa. St. 4G8; Dodge v. Walley, 22 Cal. 224; Simson v. Eckstein, lb. 580.— fl. 31 21 ON CONTRACTS BY DEED. [lECT. 1. instrument, and in an action upon it, it is not competent for the party bound to deny the recital (t). But an p:.rt.,-| allegation '-'must, in order to operate as an estoppel^ be clear, distinct, and definite \ii). As where A. having an equitable estate in fee in certain lands, mort- gaged them to B., reciting in the instrument of mort- gage that he was legally or equitably entitled to them. He afterwards obtained the legal estate, and conveyed the latter to C. The Court of King's Bench held that, there being in the instrument of mortgage no "certain and precise averment of any seisin in A., but merely a recital that he was legally or equitably entitled, C, who claimed under A., was not estopped from setting up against B. the legal estate so acquired by him {x). Such a recital is indeed the hypothesis upon which the con- tract is made by the parties; and therefore it would quite overthrow their mutual intention, if, in the absence of fraud, the recital could be denied. For the same reason, the estoppel has no effect in matters not depend- p.f.oo-1 ing upon that contract; thus even a *party to a deed is not estopped in an action by another party, not founded on the deed but wholly collateral to it, from disjDuting the facts so admitted therein {y). In such case evidence of the circumstances under which the admission was made, is receivable to show that it (i) Carpenter v. BuUer, 8 M. & W. 209 ; Pilbrow v. Pilbrow's Atmospheric E. C, 5 C. B. (57 E. C. L. R.) 440 ; Young v. Raincock, 7 C. B. (62 E. C. L. R.) 310; Stronghill v. Buck, 19 L. J. (Q. B.) 209; 14 Q. B. (68 E. C. L. R.) 781. See per Wood, V. C, in Carter v. Carter, 3 Kay & J. 617, 645 ; 27 L. J. (Ch.) 74, 84. (w) Right d. Jefferevs v. Bucknell, 2 B. <% Ad. (22 E. C. L. R.) 278 ; Lain- Bon V. Tremere, 1 A. et E. (28 E. C. L. R.) 792; Heath v. Crealock, L. R. 10 Ch. 22 ; 44 L. J. (Ch.) 157 ; General Finance, Mortgage, and Discount Co. v. Liberator Permanent Benefit Building Soc, 10 Ch. Div. 15. {x) Right V. Bucknell, 2 B. & Ad. (22 E. C. L. R.) 278, supra; Heath v. Crealock, L. R. 10 Ch. 22; 44 L. J. (Ch.) 157; General Finance, Mortgage, and Discount Co. v. Liberator Permanent Benefit Building Soc, 10 Ch. Div. 15. {y) Carter i'. Carter, supra; Fraser v. Pendlebury, 31 L. J. (C. P.) 1. 32 LECT. I.] ON CONTRACTS BY DEED. 23 was inconsiderately made, and is not entitled to weight as a proof of the fact it is used to establish (2;). For the same reason, if all the facts appear by the deed, a party thereto is not estopped from averring them although they are contradictory to some part of the deed (a). An instructive instance of an estoppel is afiforded by the case of Wiles v. Woodward {b). In this case the plain- tiff and defendant had been in partnership together as paper manufacturers and iron merchants. The part- nership was dissolved by deed, by which it was recited that an agreement had been made that the defendant should have all the stock in trade of the business of paper merchants, but that the plaintiff should receive paper out of that stock to the value of £898 45. lid., which was to remain in the paper mill for a year. *0n the other hand the plaintiff was to have the po^-i stock in trade in the iron business. The deed further recited, that, in pursuance of that arrangement, paper of that value had been delivered to the plaintiff', and that the same then was in the paper mill, as the plaintiff thereby acknowledged. It then contained an assignment by the defendant to the plaintiff of all the stock in trade of the iron business, and by the j^laintiff to the defendant of all the stock in trade of the paper making business, except the £898 4s. lid. worth of paper delivered to the plaintiff, and mutual releases, and a dissolution of the old partnership. In fact no paper had been delivered or set apart; and in an action of trover for it, it was contended by the defendant, that (z) Carpenter t'. Buller, supra. (a) Co. Litt. 352 b.; Pargeter v. Harris,? Q. B. (53 E. C. L. R.) 708 ; Dancer V. Hastings, 4 Bing. (13 E. C. L. R.) 2; Jolly v. Arbuthnot, 4 De G. & J. 224; Morton v. Woods, L. R. 3 Q. B. 658 ; 4 lb. 293 (Ex. Ch.) ; 37 L. J. (Q. B.) 242 ; 38 lb. 81 ; Rowbotham v. Wilson, 27 L. J. (Q. B.) 61, per Watson, B.; 8 E. & B. (92 E. C. L. R.) 123. (6) 5 Exch. 557. " 3 33 24 ON CONTRACTS BY DEED. [lECT. I. no certain quantity having become the property of the plaintiff, no definite paper could be said to be his ; and consequently, that an action of trover, not being an action on the deed, and which implies that the thing sued for is the plaintiff's, could not be supported. But the Court of Exchequer considered that the parties were estopped by the deed, not merely in an action thereon, but in this proceeding, which was to enforce the rights arising out of it. " A recital," said Parke, B., deliver- ing the judgment of the Court, "when it is of a fact agreed upon by both, binds both ; and the present claim is not collateral to the deed, as in Carpenter v. Buller. It is, therefore, an estoppel on both. The parties have pi-.or-i agreed, with respect to *the stock in trade in the paper business, that they should stand precisely in the same situation as if the stock had been divided, and that part amounting to the stipulated sum had been delivered to the plaintiff; and, being in that situation, the question is what their respective rights are." ^ ^ One of the most frequent occurring instances of estoppel in pais, or, as it should be in this case more correctly termed, equitable estoppel, is the rule which, in its general application, prohibits the tenant from denying his land- lord's title, and which, although it has been supposed to have been feudal in its origin, seems to have arisen in later times. See Judge Hare's note to Duchess of Kingston's case, 2 Smith's Lead. Cas., 8th ed. ; Morris on Re- plevin, 121. "The principle was of necessity called into being by that feature of the action of ejectment which requires an absolute possessory title in the plaintiff, and makes, in its absence, the mere fact of possession decisive in favor of the defendant. The result of allowing the tenant to deny the right of the landlord, in an ejectment for the land, would therefore be to take the estate from the latter, and confer it on the former, whenever there was a defect, either in the title itself, or the proof brought forward to sustain it. This would obviously be equally inconsistent with public policy and private faith, and would prevent men from letting their property, even when they are unable to use it themselves. When, therefore, possession is obtained under a lease, the lessee is estopped from keeping the land in violation of the agreement under which it was acquired :" Note to Duchess of Kingston's case. The rule, therefore, is a very general one with respect to an ejectment brought by the landlord against the tenant (unless, indeed, in the case where tue assent of the latter is produced by the fraud or misrepresentation of the 34 LECT. I.] ON CONTRACTS BY DEED. 25 Before quitting this head of Estoppel, it must be ob- served that as the deed takes effect from the delivery, former : Miller v. M'Brier, 14 S. & R. 382 ; Hockenbury v. Snyder, 2 W. & S. 240), and also with respect to actions brought by the landlord to recover the rent, for the " mischief to which the absence of such a rule as between landlord and tenant must lead, would evidently be that a tenant, having ob- tained the possession from his landlord, could betray it to another, and thus drive the former to an ejectment to regain the possession. The result would be that no landlord would ever be safe from the prospect of litigation. Hence the tenant's obligation to restore to him the possession :" Rawle on Covenants for Title, 235. It may also be observed that where the lease is by indenture, the law of " estoppel by deed " applies : Jordan v. Twells, Rep. Temp. Ilardw. 171 ; Palmer v. Elkins, 2 Raym. looO. And where the action is assumpsit for use and occupation, the issue sought to be raised by the question of title is an immaterial one : Lewis v. Willis, 1 Wils. 314 ; Doe v. Smythe, 4 M. &. S. 347 j Cobb V. Arnold, 8 Mete. 398. The rule only operates, however, to debar the tenant from denying the title at the time of possession given, and he is at liberty to show that it has since ex- pired or been defeated : Walton v. Waterhouse, 2 Wms. Saund. 41 8, note ; Hop- croft V. Keys, 2 M. & Sc. 767 ; Jackson v. Rowland, 6 Wend. 666; Devacht v. Newsam, 3 Ohio, 57 ; Randolph v. Carlton, 8 Ala. 606 ; or such circumstances as amount to a constructive eviction, as by being compelled to make pay- ments to a mortgagee, groimd landlord, &c. : Doe v. Barton, 11 A. & E. (39 E. C. L. R.) 314; Mayor of Poole v. Whitt, 15 M. & W. 577 ; Waddilove v. Bar- nett, 2 Birg. N. C. (29 E. C. L. R.) 538 ; Franklin v. Carter, 1 C. B. (50 E. C. L. R.) 760; Jones i'. Clark, 20 Johns. 51; Magill v. Hillsdale, 6 Conn. 469; Smith V. Shepard, 15 Pick. 147 ; Welch v. Adams, 1 Mete. 494 ; George v. Putney, 4 Cush. 355 ; Greeno v. Munson, 9 Vt. 37 ; Chambers v. Pleak, 6 Dana, 428.— R. One entering as a sub-tenant is in like manner estopped from denying the title of the paramount landlord: Milhouse v. Patrick, 6 Rich. 350; [Jones v. Dove, 7 Or. 467 ; and the heirs of a tenant while standing solely on his right : Lewis V. Adams, 61 Ga. 559.] When one, however, already in possession, acknowledges himself to be the tenant of another, he may destroy the effect of such acknowledgment by showing that it was procured by fraud, or pro- ceeded from a clear mistake as to title : Givens v. MuUinax, 4 Rich. 590, The gratuitous payment of rent by one in possession of real estate does not estop him from showing the true character in which he holds the premises : Shelton i'. Carrol, 16 Ala. 148. And see upon the general principle of a tenant's being estopped from controverting his lessor's title: Cody v. Quarterman, 12 Ga. 386 ; Freeman v. Heath, 13 Ired. 498 ; Sims v. Glazener, 14 Ala. 695 ; Pope V. Harkins, 16 lb. 321; Hoen v. Simmons, 1 Cal. 119; Henly i. The Branch Bank, 16 Ala. 552. A tenant, after the tenancy has terminated, and he has restored the possession to his landlord, may a-ssert a title paramount against him, and the previous tenancy cannot bar his right to recover: Smith V. Mundy, 18 lb. 182 ; Page v. Kinsman, 43 N. H. 328 ; Wilson v. James, 79 N. C. 349; Rogers v. Boynton, 57 .\la. 501. He may show also that the land- 35 25 ON CONTRACTS BY DEED. [lECT. I, not from the apparent date, neither party can be estopped from showing the real date of the delivery, although by doing so a very different meaning may be given to the deed from that which would be given to it if the parties were estopped from denying that the date "was the time from w^hich the deed commenced in effect. Thus, where a charter-party, dated 6th February, con- tained a covenant that a ship should proceed from Demerara, where she then lay, on or before 12th Feb- ruary, the defendant was allowed to show that the cliarter-party was, in fact, not executed till 15th March, and that therefore the condition as to the time of sailing ■was dispensed with (c). But notwithstanding the strong terms in which estoppel is often described as peculiar to a deed, it must not be supposed that a party cannot be estopped by any other act (d), although estoppel by deed is much the (c) Hall V. Cazenove, 4 East, 477. (d) M'Cance v. London and North Western Eailwaj, 34 L. J. (Ex.) 39. lord's title has expired, or that he has sold his interest to another : Homer v. Leeds, 25 N. J. 106; Russel v. Allard, 18 N. H. 222. He may purchase his landlord's title at sale on execution, and may set up the title thus acquired against his landlord : Elliott v. Smith, 23 Pa. St. 131 ; Wolf v. Johnson, 30 Miss. 513; Bettison v. Budd,'17 Ark. 546. A tenant may show that his land- lord's title has ceased, even though he has paid rent to the assignee: M'Devitt V. Sullivan, 8 Cal. 592. If one in possession under claim of title is hy fraud or mistake induced to helieve that another has a better title, and therefore to take a lease from him, the tenant will not be estopped by that lease from deny- ing the lessor's title : Alderson v. Miller, 15 Gratt. 279 ; Pearce v. Nix, 34 Ala. 183; Cramer v. Carlisle Bank, 2 Grant, 267; Schultz v. Arnot, 33 Mo. 172; Cain V. Gimon, 36 Ala. 168. A tenant is not estopped from denying the title of his landlord after he has surrendered possession : Zimmerman v. March- land, 23 Ind. 474.-^. A tenant is estopped from denying the title of his landlord's assignee: People V. Angel, 61 How. Pr. 159. A tenant who accepts a lease under an entire misapprehension of its purport is not estopped to deny the title of his landlord : Wiggin v. Wiggin, 58 N. H. 235. A lessee who has never taken possession is not estopped to deny his landlord's title : District of Columbia V. Johnson, 1 Mackey (D. C.) 51. 36 LECT. I.] ON CONTRACTS BY DEED. 25 most frequent. "Touching ^estoppels, which is r:;:9p-| an excellent and curious part of learning," says • Lord Coke {e), "it is to be observed that there be three kinds of estoppels, viz., by matter of record, by matter in writing {i.e., by deed), and by matter in pais. By matter of record, viz., by letters patent, fine, recovery, pleading, taking of continuance, confession, imparlance, warrant of attorney, admittance " — some of which records are now obsolete. " By matter in writing, as by deed " — of which we have already treated. " By matter in pais, as by livery, by entry, by acceptance of rent, by partition, by acceptance of an estate, whereof Littleton maketh a special observation, that a man shall be estopped by matter in the country without any writing." Of estoppel, by matter of record, it is not requisite to say more ; but one or two examples of estoppel in pais will be useful, both as showing that tlie force of an estoppel is not peculiar to a deed, and as illustrating still further the grounds and reasons of estoppel by deed itself. In Pickard v. Sears (/) it was laid down by the Court of Queen's Bench that the rule of law is clear, " that, where one, by his words or conduct, wilfully causes an- other to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position ; the former is concluded from averring against the latter a different state of ra^o'i'] *things as existing at the same time." " By the term * wilfully,^ however, in that rule," to quote the words of Parke, B., in Freeman v. Cooke {g), " we must under- stand, if not that the party represents that to be true, which he knows to be untrue, at least that he means his representation to be acted upon, and that it is acted upon (c) Co. Litt. 352. (/) 6 A. & E. (33 E. C. L. R.) 474; Heane r. Rogers, 9 B. & C. (17 E. C. L. B.) 586. [g) 2 Ex. 654, 663. 37 27 ON CONTRACTS BY DEED. [lECT. I. accordingly ; and if, whatever a man's real intention may be, he so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it, and did act upon it as true, the party making the representation would be equally precluded from contesting its truth ; and con- duct by negligence or omission, where there is a duty upon a person by usage of trade or otherwise to disclose the truth, may often have the same effect. As, for in- stance, a retiring partner omitting to inform his cus- tomers of the fact in the usual mode that the continuing partners are no longer authorised to act as his agents, is bound by all contracts made by them with third per- sons, on the faith of their being so authorised In truth, in most cases to which the doctrine in Pickard V. Sears is to be applied, the representation is such as to amount to the contract or license of the party making it." Again, where a railway company had been deceived by a forged transfer into registering shares, and granting certificates of registration of the shares, r*9m ^'^^ ^^^^ names mentioned in the forged transfer, whereby innocent persons were induced to pur- chase those shares, under the belief that the vendors were registered shareholders; it was held that the principle above laid down was applicable, and that the company were estopped by their own act from denying the right of the innocent transferees of the shares to be registered as shareholders (h)} In short, (h) In re Bahia, &c., Kail. Co., L. K. 3 Q. B. 584 ; 37 L. J. (Q. B.) 176; fol- lowed in Hart v. Frontino, &c., Co., L. E. 5 Ex. Ill ; 39 L. J. (Ex.) 93; see also Shaw v. The Port Philip and Colonial Gold Mining Co., 13 Q. B. D. 103 j 53 L. J. (Q. B.) 369. The issue, however, of the certificate of registration ^ It is not necessary to an estoppel that the party should design to mislead, if his act was calculated to mislead, and actually has misled another acting upon it in good faith : Bank v. Hazard, 30 N. "Y . 226 ; contra, Plumer v. Lord, 9 Allen 455 ; Turner v. Coffin, 12 lb. 401 ; Eice r. Bunce, 49 Mo. 231 ; Conti- 38 LECT. I.] ON CONTRACTS BY DEED. 28 to use the words of Lord Blackburn in Burkinshaw v. Nicolls (^), "when a person makes *to another r:j:9Q-| the representation, 'I take upon myself to say does not necessarily estop the company from setting up the forgery as between themselves and the person who innocently brings the forged transfer to them, and invites them to register it ; although they would be estopped by the cer- tificate as against those who might have purchased from that person on the faith of that certificate. See Simm v. Anglo-American Telegraph Co., 5 Q. B. D. 188; 49 L. J. (Q. B) 392. For other illustrations of the doctrine of estoppel by conduct see \Vebb i'. Ilerne Bay Commissioners, L. E.. 5 Q B 642 ; 39 I^ J. (Q. B ) 221 ; Ashpitel v. Bryan, 32 L. J. (Q. B.) 91 ; 33 lb. 328 ; Phillips V. im Thurn, L. R. 1 C P. 463; 35 L. J. (C. P.) 220; Carr v. London and Northwestern Railway Co., L. R. 10 C. P. 307; 44 L. J. (C. P ) 109; Coventry v. Great Eastern Railway Co, 11 Q. B. D. 776; 52 L. J. (Q. B.) 695. The student is also referred to 2 Smith's L. C, notes to Doe v. Oliver, pp. 879-912, 8th ed. (i) 3 App. Cas. 1004, 1026 ; 48 L. J. (Ch.) 179, 189. This case affirmed In re British Farmers' Pure Linseed Cake Co., 7 Ch. D. 533; 47 L. J. (Ch.) 415, where the C. A. held that a company having issued certificates that certain shares were fully paid up, were afterwards estopped, as was also the liquidator of the company, from showing that nothing had been paid, as against a pur- chaser for value without notice of any irregularity. nental Bank v. Bank of Commonwealth, 50 N. Y. 575. Although there is a seeming conflict in the decisions, yet the decided weight of autnority is that a party is not estopped by his acts or declarations from showing the truth, unless such acts or declarations were intended to influence the conduct of another, or he had reason to believe they would : Kuhl v. Mayor, 23 N. J. Eq. 84. Silence alone will not postpone unless in cases where it is a fraud ; but positive acts of encouragement bar the assertion of a right even though they were done with no fraudulent intent : Maple v. Kussart, 53 Pa. St. 348 ; Chapman V. Chapman, 59 lb. 214. A party has no right, in his dealings with another, to state a fact to be true, which he does not know to be true, and which fact may influence the conduct of the other party. If such a fact be stated to ob- tain a benefit at the expense of the other party and to his prejudice, and it appears that there was no reasonable or probable ground for a belief in the existence of such fact, the inference is that there was no belief, and the state- ment under such circumstances has the effect of and may be properly treated as a fraud : Nugent v. Cincinnati R. R. Co., 2 Disn. 302 ; Rice i'. Bunce, 49 Mo, 231. See further as to estoppels in pais: Heath v. Derry Bank, 44 N. H. 174; Judevine v. Goodrich, 35 Yt. 19; Shaw v. Beebe, lb. 205; Wooley v, Edson, lb. 214; Lesley v. Johnson, 41 Barb. (N. Y.) 359; Whitacre i-. Culver, 8 Minn. 135 ; Hazleton v. Batchelder, 44 N. 11. 40 ; Spiller v. Scribner, 36 Yt. 245; Mason i-. William.s, 8 Jones (Law) 478 ; Edwards v. Evans, 16 Wis. 181 ; Martin v. Zellerback, 38 Cal. 300 ; Simpson v. Pearson, 31 Ind. 1 ; Austin v. Thomson, 45 N. H. 113; Cain v. Busby, 30 Ga. 714; Martin v. Vox Co., 19 Wis. 552 ; Casco Bank v. Keene, 53 Maine, 103 ; Garlinghouse v. Wbitwell, 51 39 29 ON CONTRACTS BY DEED. [lECT. I. such and such things do exist, and you may act upon the basis that they do exist/ and the other man does really act upon that basis, it is of the very essence of justice that between those two parties their rights should be regulated not by the real state of the facts, but by that conventional state of facts which the two parties agree to make the basis of their action ; and that is what is meant by estoppel in pais." The next peculiarity in a contract by deed is its effect in creating a merger. This happens when an engagement has been made by way of simple contract, that is, by words in writing not under seal, and after- wards the very same {k) engagement is entered into be- tween the same parties by a deed. When this happens, the simple contract is merged, lost, sunk, as it were, and swallowed up in that under seal, and becomes totally extinguished (/). Suppose, for instance, I give my creditor a promissory note for £50, and then a bond for the same demand, the note is lost, swallowed up in the bond, and becomes totally extinct and useless [m). Or, if a devisee, in trust to sell lands and pay debts of the devisor out of the proceeds, borrow money for r*'^01 *^^^^*' purpose, and by indenture between him and the lender charges the land with the amount, and covenants to pay the money borrowed out of such money as shall come to his hands as such trustee, the claim of the lender is upon the covenant, and the simple contract which arose from the borrowing is sunk in the special agreement (n). But the engagement by deed (i) See Yates v. Aston, 4 Q. B. (45 R C. L. K.) 182. (I) Price V. Moulton, 20 L. J. (C. B.^ 102; 10 C. B. (70 E. C. L. R.) 561. (ot) Bayley on Bills, 6th edition, 3o4. (n) Matthew v. Blackmore, 20 L. J. (Ex.) 150; 1 H. & N. 76. Barb. 208 ; Eidgway v. Morrison, 28 Ind. 201 ; Moore v. Bowman, 47 N. H. 494 ; Darrah v, Bryant, 56 Pa. 8t. G9 ; Young v. Foute, 43 111. 33 ; M'Cabe v. Baney, 32 Ind. 309.— 8. - 40 LECT. I.] ON CONTRACTS BY DEED. 30 must be so completely identical with that by the simple contract, that the remedy upon the deed must be co- extensive with the remedy upon the simple contract, else there is no merger (o)} Thus, where a banker takes (o) Ansell v. Baker, 15 Q. B. (69 E .C. L. K.) 20. See Boaler v. Mayor, 34 L.' J. (C. P.) 230. I ^ Curson v. Monteiro, 2 Johns. 308 ; Bray v. Bates, 9 Mete. 250 ; and see poAsim the notes to Cumber v. Wane, in 1 Smith's Lead. Cas. The operation of this principle of law, and the distinction between a merger and a satisfac- tion of a debt, have been thus ably pointed out by Gibson, C. J., in Jones v. Johnson, 3 W. & S. 277: "There is a substantial distinction, wliich I have not seen particularly noticed, between cases of extinguishment by merger of the security, and cases of extinguishment by satisfaction of the debt. These classes, though depending on different principles, have usually been con- founded, and hence a perceptible want of precision in the language of tl»ose who have written or spoken of them. In the first of them the original security is extinguished, but the debt remains : in the second, the debt as well as the security is extinguished by the acceptance of another debt in payment of it. Extinguishment by merger takes place between debts of different degrees, the lower being lost in the higher, and, being by act of law, it is dependent on no particular intention ; extinguishment by satisfaction takes place indifferently betwen securities of the same degree or of different degrees, and, being by act of the parties, it is the creature of their will. No expression of intention would control the law which proliibits distinct securi- ties of different degrees for the same debt ; for no agreement would prevent an obligation from merging in a judgment on it, or passing in rem judicalam. Neither would an agreement, however explicit, prevent a promissory note from merging in a bond given for the same debt by tlie same debtor ; for, to allow a debt to be, at the same time, of different degrees, and recoverable by a multiplicity of inconsistent remedies, would increase litigation, unsettle distinctions, and lead to embarrassment in the limitation of actions, and the distribution of assets. But as the existence of a promissory note as a concur- rent security for a book debt produces no such consequences, it operates no extinguishment by act of the law ; and it depends on tlie a'jsent of the parties, tacit or explicit, whether the new evidence of the debt is accepted in dis- charge of the old one. It is true there are presumptions which operate even in cases of intention, as pri?nd /acie evidence on the one side or the other; for instance, that a bond given by a stranger after the debt incurred was accepted as collateral security. These, however, are legal presumptions of mere facts to be drawn by the jury under the direction of the court, and not, as in merger, presumptiones juris et dejure, which are so absolute that they can- not be rebutted. " But, merger takes place only where the debt is one, and the parties to the eecarities are identical. Hence there is no extinguishment where a stranger gives bond for a simple contract debt, or confesses a judgment for a debt by epecialty. In either case the original debt may be extinguished by the subse- 41 30 ON CONTEACTS BY DEED. [lECT. I. from a customer and a surety a bond for payment of all sums advanced, or to be advanced, to the customer, there is no merger, for the special contract differs from the simple in securing the payment of other and additional moneys, and also from another and additional person {p). So ip) Holmes v. Bell, 3 M. & G. 213; Norfolk Eailway Co. v. M'Namara, 3 Ex. 628. quent one, but not by merger, which works a dissolution not of the debt, but of the original security, whose existence sinks into that of the succeeding one, and for that purpose the union must be so intimate that the one cannot be separated from the other. In a case of merger, therefore, the debt is the same, though the old evidence of it melts into the new one, and the creditor merely gains a higher security without having an indivisible debt of different degrees, but such a result is not obtained where the debt is compounded of new responsibilities, as it must be where all the parties were not originally bound. When the debtor is bound with a stranger, or for a different sum, his responsibility is changed in more respects than the quality of the security. The difference, on the whole, consists in this, that in a case of merger there is a change only of the security ; but, in a case of satisfaction by substitution, there is a cliange of the debt." But although the intention of the parties cannot prevent the operation of a merger when a higher security is taken for a lower one, on the ground that there cannot be two distinct liabilities for the same debt, yet it is also undoubt- edly settled that it may be shown that the higher security is taken as col- lateral for the payment of the lower, that is to say, that it is a new security for a new debt, intended to protect tlie first : Yates v. Aston, 4 Q. B. (45 E. C. L. K.) 196; Ansell v. Baker, 15 lb. (G9 E. C. L. E.) 20; Eailway Co. v. M'Namara, 3 Exch. 627; U. S. v. Lyman, 1 Mas. 505; Averill v. Loucks, 6 Barb. 470 ; Butler v. Miller, 5 Den. 159 ; although the presumption where the bond is between the same parties, and for the same sura, is that the new security was taken as a satisfaction : Frisbie v. Lamed, 21 Wend. 450 ; Stewart's Appeal, 3 W. & S. 476; Bond v. Aitkcn, 6 lb. 165; Butler v. Miller, supra; Price V. Moulton, 2 Eng. L. & Eq. E. 307. A very common instance of the operation of merger occurs in the sale of real estate, when by the acceptance of the deed which consummates the transaction the articles of agreement are annulled: Howes v. Barker, 3 Johns. 506 ; [loughtaling v. Lewis, 10 Johns. 299 ; Wilson v. M'Neal, 10 Watts, 427 ; Creigh v. Beelin, 1 W. & S. 83 ; Williams v. Morgan, 15 Q. B. (69 E. C. L. E.) 782 ; unless in case of fraud or mistake : Lee v. Dean, 3 Whart. 316 ; .Jenks v. Fritz, 7 W. & S. 201 ; or imless part of the consideration should be the future perform- ance of certain stipulations in the articles, in which case the deed may be con- sidered not so much a merger of the original contract as a part performance of it : Selden v. Williams, 9 Watts, 12 ; Brown v. Moorhead, 8 S. & E. 569. In the latter case, however, it is said that to rebut the presumption that the law would otherwise make (viz., that of *he merger), the intention to the con- trary must be clear and manifest : Seitzinger v. Weaver, 1 Eawle, 385. — E. 42 LECT. I.] ON CONTKACTS BY DEED. 30 also when two out of three simple contract debtors gave a specialty security for the debt, it was held, that the simple contract liability was not merged in the specialty, and that an action lay on the simple contract (q). Another peculiar incident to a contract by deed is, that its obligation cannot be got rid of by any matter of in- ferior degree : thus, a verbal license *will not r^o-. -i exempt a man from liability for breach of his covenant (r). Thus in West v. Blakeway (s), a tenant had covenanted not to remove a greenhouse, and it was held no defence for him against an action for so doing, that he had his landlord's subsequent permission so to do, that permission not being shown to have been under seal. " It is a well-known rule of law," said the Lord Chief Justice, " that unumquodque Ugamen dissolviiur eodem ligamine quo et ligatur. This is so well estab- lished," continued his Lordship, " that it appears to me unnecessary to refer to cases. I will mention only Kogers v. Payne {t), which was an action of covenant for the non-payment of money ; the defendant pleaded a parol discharge in satisfaction of all demands. It was held upon demurrer that the covenant could not be discharged without deed, and Blake's Case {u) was cited." ^ {q) Sharp v. Gibhs, C. P. 12 W. E. 711. (r) See Cocks v. Nash, 9 Bing. (23 E. C. L. E.) 341 ; Wood v. Leadbitter, 13 M. & W. 838. (s) 2 M. & Gr. (40 E. C. L. E.) 729 ; Doe dem. Muston v, Gladwin, 6 Q. B. (51 E C. L. E.) 9o3. (0 2 Wils. 376. (m) 6 Co. Eep. 43 b. See also Harris v. Goodwyn, 2 M. &. Gr. (40 E. C. L. E.) 405. See Nash v. Armstrong, 30 L. J. (C. P ) 286. * West V. Blakeway must be considered as laying down a more rigid rule than has been observed on this side of the Atlantic, where there have been many decisions to the effect that a parol dispensation with the performance of a sealed contract is valid, and similar in its effects to a license to exercise dominion over land, which, while unrevoked, is a justification for any acts done under its authority), upon the ground that although the contract itself 43 81 ON CONTRACTS BY DEED. [lECT. I It is another advantage of a contract by deed over a simple contract (x), that althougli, as is well known, a chose in action is not assignable at common law (?/), in- p.-j-oQ-i dependently of the Judicature Act, *1873 (30 & 37 Vict. c. 66), yet, where the contract is one be- tween landlord and tenant, and is such as in its nature to affect directly the estates of either of them, which in law is called running with the land {z), the benefit and (x) Standen v. Christmas, 16 L. J. (Q. B ) 265 ; 10 Q. B. (59 E. C L. R.) 135; Brydges v. Lewis, 3 Q. B. (43 E. C L. R.) 603. (y) Com. Dig. Assignment, C. 1, lb. Grant, D. But see now 36 & 37 Vict. c. 66, s. 25, sub-s. (6), and post, Lect. VII. " Assignment of Contracts." (z) Spencer's Case, 5 Co. Rep. 16; 1 Smith, L. C. 68, 8th ed. ; Vernon v. Smith, 5 B. &. Aid. (7 E. C. L. R.) 1. cannot be dissolved unless by an instrument of equal solemnity as that creat- ing it, yet that the rights proceding from it may be varied or released by parol : United States v. Howell, 4 Wasli. C. C. 620 ; Fleming v. Gilbert, 3 Johns. 528 ; Langworthy v. Smith, 2 Wend. 587 ; Dearborn v. Cross, 7 Cow. 48 ; Leavitt v. Savage, 16 Me. 72 ; Marshall v. Craig, 1 Bibb, 379 ; and such was the view taken in the earlier English cases : 1 Roll. Abr. 453, pi. 5 ; lb. 455, pi. 1 ; Year Book, 2 Hen. VI, 37 ; Ratclifff. Pemberton, 1 Esi). 35; Blackwell r. Na.sh, 1 Str. 535 ; Jones v. Barkley, Dougl. 684 ; in which case it was held that a tender of performance and waiver of it (the evidence of which must always rest in parol ) were equivalent to actual performance. In Cordwent v. Hunt, 8 Taunt. 596, it was, however, held that in an action of covenant for not erecting a threshing-mill, it was no defence, that the omission to do so was at the special request of the plaintiff. Tliis case was followed by West v. Blakeway, supra, where the defendant had, in a lease executed to him by the plaintiff's testator, covenanted not to remove any buildings erected on the premises during the term, and the breach alleged was that he had permitted the removal of a greenhouse, to wliich the defendant pleaded that after the execution of the lease, the term had been assigned to a third person, to whom the plaintifl"'s testator promised that if he would erect the greenhouse, he should have liberty to remove it at the expiration of the lease. Under these circumstances, as has been well observed of this case, there can be no quest ioa that, upon familiar principles, a parol license to remove the greenhouse would have protected a party in so doing, if the greenhouse had at the time of the license been in actual existence, and in the possession of the lessor ; and the effect of the decision was therefore to deny the operation of such a license, as a protection, while the title to tlie greenhouse rested on an executory con- tract, thereby holding that the right of a party can be greater under a con- tract wliile yet executory than after it had passed into execution and conferred an actual title : 2 American Lead. Cas. 758, License. Such a course of deci* Bion, however, has not, as we have seen, been followed iu this country. — B. 44 LECT. I.] ON CONTRACTS BY DEED. 32 the burthen of that contract when under seal will, with- out having regard to the last mentioned statute, if the estate of either is assigned, pass with the reversion or the term to the new landlord or to the new tenant. This is partly by force of the common law, and partly by force of the stat. 32 Hen. VIII. c. 34 (a), an Act passed shortly after the dissolution of the monasteries, and rendered necessary thereby. For, as by the common law, neither the benefit nor the burthen of a contract could in general be transferred by assignment, it be- came necessary, when so many reversions of estates held by farmers and tenants, for lives or years, were alien- ated, to give to the purchasers or alienees the same rights against the farmers or tenants as the lessors had ; and the legislature naturally and equitably went on to give corresponding rights to the farmers and tenants. Again, a deed formerly had this further advantage of a simple contract, that, in case of the death of the party bound by it, it charged his heirs (if the deceased bound his heirs by using words for *that purpose in the j-.^^-. deed) to the extent of any assets that might '- -' have descended to them {b). You will find the nature of the heir's liability fully explained in the notes to Jefferson v, Morton (c). If, indeed, the debtor had devised the land away, instead of allowing it to descend to his heir, the creditor could not at common law have sued the devisee. However, by stat. 3 Wm. III. c. 14, usually called the Statute of Fraudulent Devises, the devisee was made liable as well as the heir. But, as this statute did not provide for the case of there being no heir, the land in that event going to the lord by escheat, if there was no devisee, or to the (a) Thursby v. Plant, 1 Wms. Saund. 240. (6) Cora. Dig. Covenant, C. 2, lb. Assets, A, (c) 2 Wms. Saund. 6. 45 tS3 ON CONTRACTS BY DEED. [lECT. I. devisee if one was designated by the will, a distinction which it is sometimes important to observe [d), it was repealed, and its enactments repeated, making the dex visee in such case liable, with several other improve- ments, by Stat. 1 Wm. IV. c. 47, usually called Sir Edward Sugden's Act (.rrj-] would consume on the farm "^'three-quarters of the hay and straw raised thereon, and on certain other property not comprised in the lease, and would leave for the landlord such of the manure thence aris- ing as was not used upon the farm, receiving a reason- able price for it. There was also a custom of the neiiihborhood that the tenant of a farm should receive from the landlord or incoming tenant a reasonable al- lowance for seed and labor bestowed on the arable land in the last year of his tenancy, and should leave the manure for the landlord if he would purchase it. The Court considered that in this case the only difference material to the question between the covenant and the custom was that the covenant obliged the tenant to spend on the farm more than its own produce upon being paid for it, which was not incompatible with the custom, but virtually left it in its full operation. But the Courts never admit evidence of an usaf/e in- compatible with the written conlract ; for, in the words of Mr. Baron Alderson, in the case of Clarke v. Key- stone (, 29 L. J. (Q. B.j 1. 93 82 THE STATUTE OF FRAUDS. [lECT. II. Sir, I beg to inform you that I shall see you paid to the sum of £800 for the ensuing building which you under- take to build for Messrs. Thomas and Owens, of Cap Cocli. Thomas Lake." The defendant had delivered this to one John Thomas, intending it to be given to Thomas Jones, who was in treaty to build houses for Thomas and Owens, but Jones refusing to build them, they agreed with plaintiff to build them, and gave him the guaranty. Of this the defendant was ig- norant, but he afterwards assented to the plaintiff having the guaranty. It was held that an action could not be brought upon the guaranty, as the plaintiff's name did not appear in it. " The objection," said Cock- hum, C. J., " that there was no agreement or memoran- dum, or note thereof within the Statute of Frauds, must prevail, on the simple ground that in order that any agreement or memorandum should be sufficient, it is ab- solutely necessary that the names of the parties to the agreement should appear on its face. It is said that the terms "^'are satisfied if the note of the agreement •- -I contains a proposal which is acceded to by words. But I cannot concur in that way of putting it ; the only difference between an * agreement ' and the * note ' of an agreement is, that in the one instance a formal agreement is meant, and in the other something not so particular in form and technical accuracy, but still containing the essentials of the agreement. The essentials of the agreement must be stated, that is to say, the subject-matter of it {i), the extent of the liability contracted thereby, if any, and the names of both par- ties to it : and, I tliink, not only is that the fair con- struction to be put upon the statute, but when we look (i) As to what amounts to a sufficient description of the property in the case of a sale of real estate, so as to satisfy the statute, see Shardlow v. Cot- terell, 20 Ch. Div. 90 (C. A.) ; 51 L. J. (Ch.) 353, (reversing 18 Ch. Div. 280, 60 L. J. (Ch.) 613), and the authorities there cited. 94 LECT. II.] THE STATUTE OF FRAUDS. 83 at the miscliief intended to be prevented, it is clear that the writing which constitutes a liability on one side, without stating the name of the other party to whom it was given, would lead to the very thing which the statute was intended to prevent, namely, fraud. There might have been an agreement for building another set of houses, or the agreement might have been of the same houses, and this miglit have been put into the hands of some person to whom the defendant never in- tended to give a guaranty, and it might' be enforced by *parol evidence showing that it was intended to p^^ .-, come into the hands of that person, while the '- -^ defendant might resist it by parol evidence, so that the very contest would take jolace which the statute was in- tended to prevent. The mischief would not be effect- ually remedied, unless we held that this guaranty was not sufficient." The statute, however, is satisfied if the vendor and purchaser are sufficiently described, though their names do not appear (J). Thus, upon a sale by auction of real estate in lots, the particulars stated that the sale was by direction of the " proprietor," but the name of the vendor did not appear. A memorandum on a copy of the particulars was signed by the purchaser of one of the lots, and by the auctioneer on behalf of the vendor. It was held that the vendor was sufficiently described, and that the memorandum was sufficient to satisfy the requirements of the statute (^). On the other hand, where the particulars and conditions did not disclose the vendor's name, and in some places spoke of " vendors " in the plural ; although for the most part " vendor " was (;■) Hood V. Lord Barrington, L. R. 6 Eq. 218 ; Sale v. Lambert, L. R. 18 Eq. 1, 43 L. J. (Ch.) 470; Potter v. Duffield, L. R. 18 Eq. 4, 43 L. J. (Ch.) 472. See also Williams v. Byrnes, 1 Moo. P. C. N. S. 154; 9 Jur. N. e. 363. (^•) Sale V. Lambert, ubi supra. 95 84 THE STATUTE OF FEATJDS. [lECT. II. used, and a memorandnm endorsed on a copy of the particulars and conditions was signed by the "^'auc- ■- ' -^ tioneer on behalf of the " vendor," the descrip- tion was held insufficient (/). In Kossiter v. Miller (m) " proprietors," in Catling v. King (71) " trustee selling under a trust for sale," was held a sufficient description. There is another observation applicable to all the five cases provided for by this section of the statute, namely, that the agreement, the meaning of which word I have just explained, need not be contained in a single writing, but may be collected from several. You will find that established by many cases. The purchaser of flour wrote to the vendor as follows — " I hereby give you notice that the corn you delivered to me in part performance of my contract with you for one hundred sacks of good English seconds flour at 455. a sack, is of so bad a quality that I cannot sell it or make it into saleable bread. The sacks of flour are at my shop, and you will send for them, otherwise I shall commence an action." To this the vendors answered by their attorney : " Messrs. L. consider that they have performed their contract with you as far as it has gone, and are ready to complete the remainder ; and r^op-i *unless the flour is paid for at the expiration of one month, proceedings will be taken for the amount." The two writings were considered to constitute a suffi- cient memorandum of the contract. This case was indeed decided upon the 17th section of the Statute of Frauds, but the reason of the decision applies equally to {I) Potter V. DufEeld, vbi supra. See also Williams v. Jordan, 6 Ch. Div. 517; 46 L. J. (Ch.) 681. (m) 5 Ch. Div. 648, 46 L. J. Ch. 228, 737 ; 3 App. Cas. 1124 ; 48 L. J. (Ch.) 10 (H. L.). The H. of L. affirmed as to this point, both the M. R. and C. A., but reversed the latter as to the question of there being a concluded agree- ment. (n) 5 Ch. Div. 660; 46 L. J. (Ch.) 384. 96 LECT. II.] THE STATUTE OF FRAUDS. 86 the 4th section (o). In another instance, on a sale by auction, the particulai-s of sale described the premises, and the conditions of sale were on the same sheet. The plaintiff purchased the property, and on paying the deposit, signed an agreement endorsed on the before- mentioned particulars and conditions, in the words fol- lowing : — " I do hereby acknowledge myself the pur- chaser of the property described in the within particulars at and for the price or sum of £94 10s., and I do here- by undertake and agree to perform my part of the conditions therein specified, in furtherance of w^hich I have this day paid the sum of £18 18s., being the amount of the deposit, as also the sum of £2 7s., being my moiety of the government duty. As witness my hand this 11th day of June, 1857, Isaac Dobell " (the plaintiff). Neither the defendant nor any one for him signed the agreement, nor was his name mentioned in it or in the particulars or conditions, except that in the particulars of sale he was referred to for particulars of the premises. On discovering ^afterwards that rH:or--| a small yard mentioned in the particulars was not comprised in the lease purchased, which defect was not known at the time of sale to either party, the plain- tiff's attorney wrote to the defendant as follows : — " We are instructed to inform you that Mr. Dobell, in conse- quence of your not having shown a good title to the premises offered for sale on the 11th instant as described in the particulars, declines taking the property, and we have to request that you will direct the auctioneer to return the deposit and duty received by him of Mr. Dobell, and that you will remit to us the expenses incurred in this matter, and make some arrangement for payment thereof." On this the defendant sent a letter (o) Jackson v. Lowe, 1 Bing. (8 E. C. L. R.) 9. See Barker v. Allan, 29 L. J. (Ex.) 100. 7 97 87 THE STATUTE OF FEAUDS. [lECT. II. signed by him to the plaintiff's attorney, in which he mentioned having " stated the case to counsel relating to our sale to Mr. Dobell," and added, " having obtained his opinion thereon, I beg to acquaint you that the rea- sonable compensation to which he is entitled (alluding to a provision in the condition for compensation) on our securing to him a lease of the yard adjoining the Aber- deen Arms, is £11 16s. If he is willing to accede to this, the business may be completed without delay ; if not, we beg to be understood as now calling on Mr. Dobell to settle the compensation in the way provided for. If he declines this, we presume you will accept Chancery process for him at our suit." In another letter to the plaintiff's attorney, the defendant expressly p!:QQ-| *inentioned the abatement in the price as being according to the condition of sale. It wil] be observed in this case that the letters of the defendant refer expressly and distinctly to the conditions of sale, and he had in his hands, or those of his auctioneer, at the very time, the conditions of sale signed by the plaintiff to which reference is made, so that no parol evidence of any kind was requisite to show a contract binding both parties, except evidence of the handwriting of each, which must be adduced in all cases. For these rea- sons the Court of King's Bench was of opinion that there was a sufficient contract within the Statute of Frauds {p). Neither is it material that the letters out of which the contract may be proved, are written to third parties {q), even to the writer's own agent, pro- vided the contract be fully recognized therein (r). A (p) Dobell V. Hutchinson, 3 A. & E. (30 E. C. L. R.) 355; Eidgway v. Wharton, 27 L. J. (Ch.) 46 ; 6 H. of L. C. 238; Bauraann v. James, L. E. 3 Ch. 508 ; Long v. Millar, 4 C. P. D. 450 ; 48 L. J. (Q. B., etc.) 596 ; Cave v, Hastings, 7 Q. B. D. 125; 50 L. J. (Q. B.) 575. (plication of this rule is afforded by the case of Hammersley v. Baron de Biel (s). It will be recollected that one of the cases in which a written contract or memorandum is required by the Statute of Frauds, is where any promise is made in con- sideration of marriage. In *tlie present instance, pgrn proposals of marriage had been written by the lady's brothers by her father's authority, which were de- scribed therein to be the bases of the arrangement, subject, of course, to revision ; and as sufficient for the proposed husband to act upon. These proposals were not signed. A letter, afterwards written and signed by the father after the marriage, admitting the terms of the written proposals, was considered ns a recognition of tJiem as his agreement, and sufficient within the Statute of Frauds. But though, where there are several papers, the agreement may be collected from them all, provided they are sufficiently connected in sense among them- selves, so that a person looking at them all together can make out the connection and the meaning of the whole without the aid of any verbal evidence ; yet it is other- wise when such connection does not appear on the face of the writings themselves ; for, to let in parol evidence in order to connect them with one another, would be to let in the very mischief which it was the object of the framers of the Act to avoid, namely, the uncertainty and temptation to falsehood occasioned by allowing the prool of the contract to depend on the recollection of wit- nesses : and, therefore, where a written agreement is re- - quired by the 4th section of the statute, it is clear that several writings, not bearing an obvious connection inter se in sense, cannot be joined together by verbal evidence to make up the ^agreement. This was one of r:i/• ^ 7/^ LECT. II.] THE STATUTE OF FRAUDS. 98 '■'^ 'S8 this accord and satisfaction might be proved by parol ; although, if it had been required to enfore the delivery up of possession of the premises, a writing might have been necessary (r). Although these lectures only profess to deal with ^contracts under their Common Law aspect, and r^qn-i to treat of such subjects as have been, previously to the Judicature Acts of 1873 and 1875, enforceable by action in the Courts of Common Law, it should be briefly noticed here that the Courts of Equity would enforce the complete performance of an agreement which came within the 4th section of the Statute of Frauds, even where the absence of a writing sufficient to satisfy the statute would have been an insuperable obstacle to success at Law, provided that the party who sought to enforce the agreement had himself partly performed his share of it. In other words, in Equity ])art performance took the case out of the statute. This doctrine, indeed, had always been confined in Equity to questions relating to land (s) , but when the provisions of t]ie Judicature Act of 1873 {t) came into force, which enable the High Court and Court of Appeal to recog- nize all equitable duties and liabilities apjDcaring in the course of any matter before them, and to grant all remedies in respect of any legal or equitable claim ; and which provide, too, that where " there is any conflict between the rules of Equity and the rules of Common Law with reference to the same matter, the rules of Equity shall prevail ;" it was thought possible that the equitable doctrine of part performance might r-jjt/v)"! ^become aj^plicable to contracts orhe]f than those .^^z 'i', to which Courts of Equity had been in the h?bit cf (r) Lavery v. Turley, 30 L. J. (Ex.) 49. (s) Britain v. Rossiter, 48 L. J. (Q. B.) 364, 366 ; 11 Q. B. D. 129, 130. (0 36 & 37 Vict. c. 66, s. 24, sub-ss. 4, 7, and s. 25, suh-s. 11. 107 100 THE STATUTE OF FRAUDS. [lECT. II. applying it. Accordingly, in Britain v. Kossiter {u), it was souglit to api^ly it to a contract of service. There the plaintiff and defendant had entered into an agreement in writing, but not signed, for the plaintiff to serve for a year as clerk and accountant to the de- fendant. The agreement was concluded on Saturday, the 21st of April, 1877 ; the plaintiff's service began on the Monday following. It was, therefore, a contract not to be performed within a year, and a writing, duly signed, became necessary in the event of an action being brought on the contract. The plaintiff served some months, and was then dismissed at a month's notice, and subsequently brought his action. The Court of Appeal, before whom it was contended that the plain- tiff was entitled to recover, on the ground of part per- formance taking the case out of the statute, refused to extend the application of the doctrine to any cases in which Equity had not applied it, holding that to apply it to a contract of service which could not have come within the jurisdiction of the Court of Chancery would be to construe the Judicature Acts as conferring new rights, whereas in truth they only change the pro- cedure ; and the Court held that the plaintiff could not p^^^^-i maintain the action. By this decision, *there- fore, the law seems now to be settled that the doctrine of part performance only applies to cases relating to land. It is not intended here to go further into the subject of part performance, or to consider what acts of part performance have been held sufficient to take, the case out of the statute. The student who desires 'furthet/iiifdiim^tion on the subject is recom- meiided to peruse CLarefully the judgment in the case of Maddison ?;. A'ltesofi (x), recently decided in the (u) 48 L. J. (Q. B.) 362 ; 11 Q. B. D. 123. (x) 8 App. Cas. 467 ; 62 L. J. (Q. B.) 737 (H, L.), affirming Alderson v. 108 LECT. II.] THE STATUTE OF FEAUDS. 101 House of Lords ; and is also referred to the case of Les- ter V. Foxcroffc, and the notes thereto in White and Tudor's " Leading Cases in Equity (?/)." I have now pointed out to you the matters in which all simple contracts agree, and the practical differences which exist between the effect of written and that of verbal contracts, although in theory both sorts fall within the denomination Simple Contracts. I have de- scribed the consequences which follow from the rules of evidence upon the reduction of any contract what- ever into writing, and I have begun to describe those consequences which follow from the provisions of the Statute of Frauds, in the cases to wliich it is applicable. But as it is imjDOSsible to finish the consideration of that statute this evening, I shall proceed with it in the next Lecture. Maddison, 7 Q. B. D. 174 (C. A.), 50 L. J. (Q. B.) 466; and reversing S. C. 5 Ex. Div. 293; 49 L. J. (Q. B.) 801. (y) White & Tu. vol. i. p. 828, 5th ed. 109 [*102] LECTUEE III. THE FOURTH SECTIONS' OF THE STATUTE OF FRAUDS. PROMISES BY EXECUTORS AND ADMINISTRATORS. GUARA NTIES. — MARRIAGE CONTRACTS. CONTRACTS FOR THE SALE OF LAND. AGREEMENTS NOT TO BE PERFORMED IN A YEAR. I HAVE now touclied on the points which [with one exception made by the provisions of a recent statute in the case of guaranties] equally apply to each of those five species of contracts to which the 4th section of the Statute of Frauds relates ; those, namely, which regard the appearance in the writing of the consideration and other terms as well as the promise, the signatvre which the statute requires, and the consequences of not reduc- ing into writing contracts which the statute requires should be so evidenced. It remains, before terminating the consideration of that section of the Act, to consider each of the five particular species of contracts to which it applies. The first is — any special promise by an executor or administrator to answer damages out of his own estate. The principal case on this subject is Eann v. ^ '''Hu2;hes ia), which went up to the House of '- ^ Lords. The point decided in that case is, that the Statute of Frauds in no manner affected the valid- ity of such promises, or rendered them enforceable in any case in which at Common Law they would not have been so ; but merely required that they should be (a) 7 T. R. 350, n. ; 7 Bro. Pari. C. 550. Forth v. Stanton, 1 Wms. Saund. p. 2U, n. 2. 110 LEcrr. in.] the statute of featjds. 103 reduced into writing leaving the written contract to be construed in such a manner as a parol contract would have been, had there been no writing. The opinion of the judges was delivered to the House of Lords by L. C. Baron Skynner, and is extremely instructive. Being very short, it is here inserted : — " It is undoubtedly true that every man is by the law of nature bound to fulfil his engagements. It is equally true that the law of this country supplies no means nor affords any remedy to compel the 2:>erformance of any agreement made without sufficient consideration. Such agreement is nudum pactum ex quo non oritur actio ; and whatever 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, be- ing indebted as administratrix, promised to pay when requested, and the judgment is against the defendant generally. The being indebted is of itself a sufficient consideration to ground a promise, but *the promise must be co-extensive with the considera- ^ -' tion, unless some particular consideration of fact can be found here to warrant the extension of it asrainst the defendant in her own capacity. If a person indebted in one right, in consideration of forbearance for a par- ticular time, promise to pay in another right, this con- venience 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 convenience 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 de- rive no 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 111 104 THE STATUTE OF FKAUDS. [lECT. III. takes away tlie 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 put in writing, it will after verdict be presumed that it was in writing : and this last is certainly true ; but that there cannot be nudum pactum in writing, what- ever 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 L -I endeavoured to maintain, as contracts in writing. If they be merely written and not specialties, they are parol, and a consideration must be j^roved. But it is said that the Statute of Frauds has taken away the ne- cessity of any consideration in this case ; the Statute of Frauds was made for the relief of personal rej)resenta- tives and others, and did not intend to charge them further than by common law they were chargeable." His Lordship here read those sections of that statute which relate to the present subject. He observed, " that the words were merely negative, and that executors and ■ administrators should not be liable out of their own es- tates, unless the agreement upon which the action was brought, or some memorandum thereof, was in writing and signed by the party. But this does not prove that the agreement was still not liable to be tried and judged of as all other agreements merely in writing are by the common law, and does not prove the converse of the proposition, that when in writing the party must be at all events liable." He said that " all his brothers concurred with him that in this case there was not a sufficient consideration to support this demand as a per- sonal demand against the defendant, and that its being 112 LECT. III.] THE STATUTE OF FRAUDS. 105 now supposed to have been in writing makes no differ- ence."^ The next species of promise mentioned in the 4th section is, any special promise to answer for the debt, de- fault, or miscarTiage of another person. *This includes all those promises which we or- ^ dinarily denominate guaranties, and has given '- ^ rise to a very great deal of discussion. In the first place, it has been decided, that the sort of promise which the statute means, and which must be reduced into writing, is a promise to answer for the debt, default, or miscarriage of another person, for which that other person himself continues liable. Thus, if A. go to a shop, and say, " Let B. have what goods he pleases to order, and if he do not pay you / will," that is a promise to answer for a debt of B. for which B. is himself also liable : and if it be sought to enforce it, it must be shown to have been reduced into writing : but if A. had said, "Let B. have goods on my account," or, " Let B. have goods and charge me with them :" in these cases no writing would be required, because B. never would be liable at all, the goods being supplied on A.'s credit and responsibility, though handed by his directions to B. {b).^ (b) Birkmyr v. Darnell, Salk. 27 ; and the notes to Forth v. Stanton, 1 Wms. Saund, 211 b, 211 c. » Sidle V. Anderson, 45 Pa. St. 464.— s. ' The party for whom the promise is made must be liable to the party to whom it is made: Boykin v. Dohlonde, 37 Ala. 577; Downey v. Hincliman, 25 Ind. 453. A request to one to work for the benefit of a third party and a promise to pay, form an original, not a collateral promise : Brown v. George, 17 N. H. 128,- Dorwin i\ Smith, 35 Vt. 69; Smith v. Eogers, lb. 140; Wil- liams V. Little, lb. 323. A.'s promise to pay a debt due from C. need not be in writing if it is made in consideration of C.'s release therefrom : Day v. Cloe, 4 Bush, 563 ; Packer v. Benton, 35 Conn. 343; ^ale v. Edgerton, 14 Minn. 194; Harris v. Young, 4 Ga. 65 ; Uhler v. Farmers' Bank, 64 Pa. St. 406. The statute does not apply where the promise is to pay his own debt, though it may be incidentally a guarantee of the obligation of another : Malone v. 8 " 113 106 THE STATUTE OF FRAUDS. [lECT. III. Upon these grounds where there were three executors and trustees, and A. Orrell, one of them, renounced to enable himself to purchase some of the testator's prop- erty, which, while trustee, he could not do without leave of the Court, and afterwards purchased the property, and losses were incurred by the trustees, and a claim for them was raised in Equity by the legatees, where- upon *Orrell, by his solicitor, wrote to them •- -I agreeing to pay £3000 in satisfaction of these losses ; the Court of Chancery held that this letter was not within the Statute of Frauds as a promise merely to satisfy the debt of another, but was an undertaking to pay the debt which it was insisted, rightly or wrongly, that Orrell was liable for (c). For this reason, where the plaintiff had issued execu- tion against Lloyd for debt, and Lloyd, with the plain- tiff's consent, conveyed all his property to defendant, who thereupon undertook to pay the plaintiff the debt due from Lloyd upon the plaintiff's withdrawing the execution, and giving up his claim on Lloyd ; the defendant's un- dertaking was held not to be a promise to answer for another's debt for which that other remained liable {d). But where Buxton had sued the defendant in Chan- cery, and had retained plaintiff in that suit as his solicitor, and costs had been incurred to the plaintiff, and it was agreed by the three that the suit should be discontinued, and that the defendant should pay the plaintiff these costs, it was held that since Buxton's debt to the plaintiff remained, he being still liable to pay plaintiff's costs, the defendant's promise was to pay the (c) Orrell v. Coppock, 26 L. J. (Ch.) 269; Adams v. Dansey, 6 Bing. (19 E. C. L. E.) 506 ; Batson v. King, 28 L. J. (Ex.) 327. {(1) Bird V. Gammon, 3 Bing. N. C. (32 E. C. L. R.) 883. Keener, 44 Pa. St. 107 ; Stoudt v. Hine, 45 lb. 30 ; Besshears v. Eowe, 46 Mo. 501 ; Chamberlin v. Ingalls, 38 Iowa, 300 ; Blair Land Co. v. Walker, 39 lb. 406; Lester v. Bowman, lb. 611. — s. 114 LECT. III.] GUARANTIES. 107 debt of another, *and could not be sued upon, p^.^^n-i not being in writing (e). In another instance, ^ -" the plaintiff became bail for one Hadley, at the defend- ant's request, and upon his promise to indemnify the plaintiff from all damages and expenses which he should sustain by reason of his so becoming bail ; and the Court clearly held this was a promise to answer for the default of another, and was not the less so because it was in the form of a promise to indemnify (/). In another case the plaintiff contracted to supply A. with iron plates, and delivered a part of them, but refused to deliver the rest unless he was paid in cash. The de- fendant, who had an interest in the contract, thereupon agreed that if the plaintiff w^ould deliver the remainder he would cash A.'s acceptances for the goods already and tliereafter to be delivered, and protect the plaintiff from the bills when due. The defendant was to receive 3 per cent, on the amount of the bills. It was held that a contract to give a guaranty is required to be in writing as much as a guaranty itself: that here there was substantially a contract that if A., the buyer of the goods, did not pay for them when the acceptance be- came due, the defendant would indemnify the plaintiff against the buyer's default, which was an engagement to answer for the debt *or default of another, and not being in w^riting could not be enforced [g)- Goodman v. Chase (A) presents rather a singular instance of the application of the rule of construction of which I have been speaking. In that case, a debtor had been taken in execution, and Chase, in consideration (e) Tomlinson v. Gell, 6 A. & E. (33 E. C. L. R.) 564. (/) Green v. Cresswell, 10 A. & E. (37 E. C. L. E.) 453. See Cripps v. Hartnoll, 32 L. J. (Q. B.) 381, Ex. Ch. (<7) Mallett v Bateman, 16 C B. (N. S.) (Ill E. C. L. R.) 530; 33 L. J. {(\ P.) 243 ; S. C. in Ex. Ch., L. R. 1 C. P. 163 ; 35 L. J. (C. P.) 40. {h) 1 B. & Aid. 297 ; Butcher v. Steuart, 11 M. & W. 857. 115 109 THE STATUTE OF FRAUDS. [lECT, III. that the creditor would discharge him out of custody, promised to pay his debt ; when the debtor was accord- ingly discharged. It was held, that this promise need not be in writing ; for that, by discharging the debtor out of execution, the debt was gone ; it having been, as you are probably aware, before the coming into opera- tion of Stat. 32 & 33 Vict. c. G2 (The Debtor's Act, 1869), ss. 4, 5, a rule of law that if a debtor were once taken in execution and discharged by his creditor's consent, that operated as a satisfaction of the debt ;^ and therefore that, the debtor having ceased to be liable, the promise to pay the amount was not a promise to pay any sum for which another person was responsible, and therefore did not require to be reduced into Avriting. If what was originally the debt of another has been made by the defendant his own debt, it cannot after- wards, as between the creditor and himself, be con- sidered the debt of another {i). r*l 1 01 *I^ut take the case where one makes a promise to be answerable for the debt of another, and that other never becomes legally indebted to the promisee. Is that within this branch of the 4th sect. (i) Fitzgerald v. Dressier, 29 L. J. (C. P.) 113 ; 7 C. B. (N. S.) (97 E. C. L. K.) 374. ^ Sharpe v. Speckenagle, 3 S. & R. 463 ; Paletliorpe v. Lesher, 2 Rawle, 274 ; Snevily V. Read, 9 Watts, 396; Lathrop v. Briggs, 8 Cow. 171; Ransom t). Keyes, 9 lb. 128 ; and this, although he may have been discharged on terms not afterwards complied with : 1 T. R. 558 ; 6 lb. 525 ; 7 lb. 420.— e. A judgment creditor, who had taken the body of his debtor in execution, agreed that he might be set at liberty on giving security to abide the event of the trial of an issue to be framed for ascertaining whether he had the means, by the property in his marriage settlement or otherwise, of satisfying the judgment; the debtor acknowledging that this agreement was made for his accommodation, without prejudice to the creditor's right by the debtor's enlarge- ment. The issue was tried accordingly, and found for the debtor. Held, that the taking of the body of the debtor in execution was a satisfaction of the debt, at law ; and that equity would not enforce the debt against property afterwards coming to the debtor on the death of his wife, by the trusts of the marriage settlement : Magniac v. Thomson, 15 How. 281. — s. 116 LECT. III. J GUARANTIES. 110 of the Statute of Frauds? The Court of Queen's Bench, in MountstejDhen v. Lakeman [k), held that it' might be, if at the time the promise was made the promisor and promisee expected that a legal obligation would be incurred by the third person. In that case the plaintiff had been employed to construct a main sewer by a Local Board of Health, of which the defend- ant was chairman. When the sewer was nearly com- pleted the board gave notice (under 11 & 12 Vict. c. 63, s. 69) to the occupiers of the adjoining houses to connect their drainage within 21 days, or the board would do the work at their expense. Before the 21 days had expired, the plaintiff, having completed the sewer, was about to leave the place with his carts, etc., when the defendant sent after him, and the folloAving conversation took place. The defendant said : " What objection have you to making the connections ?" The plaintiff answered : " I have none ; if you or the board will order the work, or become resjDonsible for the pay- ment." The defendant replied : " Go on and do the work, and I will see you paid." Plaintiff accordingly did the work under the superintendence of the surveyor of the *board ; and sent in the account to the r*i -t -< -i board debiting them with the amount. The board refused payment on the ground that they had not authorised the order, and after more than two years, the account being still unpaid, the plaintiff brought an action against the defendant. The Court of Queen's Bench thought that the conversation did not amount to an undertaking of the defendant to be j)rimarily liable for the work ; but only to a promise that, if the plain- tiff would do the work on the credit of the board, the defendant would pay if the board did not ; and that this was a promise to be answerable for the debt of (k) L. E. 5 Q. B. 013 ; 39 L. J. (Q. B.) 275. 117 Ill THE STATUTE OF FRAUDS. [lECT. III. another within sect. 4 of the Statute of Frauds, which not being in writing could not be enforced. The Court of Exchequer Chamber how^ever thought that there was evidence on which the jury might have found that the defendant agreed to be primarily liable, and on this ground reversed the judgment of the Queen's Bench (/); and the decision of the Exchequer Chamber was subse- quently affirmed in the House of Lords (m). The affirmative proposition therefore laid down by the Court of Queen's Bench being in the opinion of the Exchequer Chamber not necessary to the decision of the case, and the House of Lords affirming the decision r*1 1 91 ^^ ^^^^ latter, *the proposition itself seems at pres- ent still doubtful, so far at least as it is incon- sistent with the previous decisions (?i). It was at one time thought that a verbal promise, , even to answer for the debt of another for which that other remained liable, might be available if founded on an entirely new consideration, conferring a distinct benefit upon the party making such promise. This idea is, however, confuted by Serjt. Williams in his elaborate note to the case of Forth v. Stanton (o). The rule there laid down by him, which has ever since been approved of, is, that the only test and criterion by which to determine whether the j)romise needs to be in writing, is the question whether it is or is not a promise to answer for a debt, default, or miscarriage of another, for which that other continues liable {p). If it be so, it must be reduced into writing ; nor can the considera- (0 L. R. 7 Q. B. 19G; 41 L J. (Q. E.) 67. (m) Lakeman v. Mountstephen, L. R. 7 H. L. (E. & I.) 17 ; 43 L. J. (Q. B.) 188. {n) But see the judgment of Lord Selbome, L. E. 7 H. L. (E. & I.) at p. 24 43 L. J. (Q. B.) 192. (o) 1 Wms. Saund. 211. (p) Hodgson V. Anderson, 3 B. & C. (10 E. C, L. R.) 855; Taylor v. nilarjr, 1 C. M. & R. 741 ; Browning v. Stallard, 5 Taunt. (1 E. C. L. R.) 450. 118 LECT. HI.] GUARANTIES. 112 tion in any case be of importance except in such cases as Goodman v. Chase, in which the consideration to the person giving the j)romise is something Avhich extin- guishes the original debtor's liability (q)} It has {q) You will see Sergt. Williams's criterion approved of in Green v. Cress- well, 10 A. & E. (37 E. C. L. R.) 453, and Tomlinson v. Gell, 6 A. & E. (33 E. C. L. R.) 564. ^ To guard against the danger arising from the facility by which loose or ill-remembered words might be tortured into a contract on the part of him who used them, the common law wisely provided that a liability should not depend upon mere words unaccompanied by a consideration for tlieir basis. And as the danger was felt to be the more strong where the words related not to an undertaking by a party for his own benefit, but on behalf of a third per- son, the fourth section of the Statute of Frauds superadded a writing to the common law requirement of a consideration. Whether such a provision has been conducive of more benefit than harm may well be doubted (see Holmes t'. Knights, 10 N. H. 176), for the decisions to which it has given rise are as remarkable for their multitude as for the difficulty of their perfect classifica- tion. The cases may naturally be divided into thdse where the promise of guarantee was concurrent with the principal contract, and those where it was subsequent to its creation. 1. Under the first of these classes, the common law is satisfied-wherever the promise is made at tlie same time as the principal contract, and is an essential inducement to it. No other consideration is necessary than that moving be- tween the creditor and the original debtor: Kirkby v. Coles, Cro. Eliz 137; and it matters not whetlier the promise be absolute or conditional and de- pendent upon default of the other : Leonard v. Vredenburg, 8 Johns. 29 ; Snevily v. Johnston, 1 W. & S. 307. The fourth section of the Statute of Frauds, however, altered the common law to this e.xtent, — where the promise is conditional and dependent upon the default of the other, it must be in writing; where, however, it is not thus con- ditional and dependent, but is direct and absolute, the case rests as at common law, and the statute does not apply. But there is a class of cases which, pro- ceeding upon the suggestion of Mr. Serj. Williams, supra, seems to determine that however direct and absolute the contract of the defendant may be, it shall not be deemed to be a direct undertaking, so as to take the case out of the statute, unless all liability is withdrawn from tlie other party, and thrown entirely upon the shoulders of the defendant ; in other words, althougli tliere may be a joint contract, yet if the consideration move only to one, unless all the credit is given to the other, the engagement of that other is coUateral and not direct; it is, therefore, witliin the statute, and he is not liable unless his promise and its consideration appear in writing : Rogers v. Kneeland, 13 Wend. 114; Brady v. Sackrider, 1 Sand. 515; Cahill v. Bigelow, 18 Pick. 369; Elder V. Warfield, 7 Harr. & J. 397 ; Blake v. Parlin, 22 Me. 395 ; Aldrich v. Jewell, 12 Vt. 126; Smith v. Hyde, 19 lb. 56; Taylor v. Drake, 4 Strob. 437; Ware 119 112 THE STATUTE OF FRAUDS. [lECT. Ill also been considered, that, in order to make the statute r*i 1 0-] applicable, the immediate *object for requiring the defendant's liability must be, that he shall V. Stephenson, 10 Leigh, 167 ; Rhodes v. Leeds, 3 Stew. & P. 212 ; Faires v. Lodanc, 10 Ala. 50; Holnaes v. Knights, 10 N. H. 177 ; Proprietors i'. Abbott, 14 lb. 159. It has been said, that it may admit of question whether the application of this principle has not been carried too far in some cases, and whether what was in truth, as between the parties, the collateral liability, has not by means of it been transformed into a principal liability, and the real principal debtor thereby discharged through the operation of the statute : Holmes v. Knights, 10 N. H. 178 ; and practically it may often happen that a tradesman, thinking to increase his security by charging the goods to both parties, by that very means, under the application of the rule sanctioned by the weight of authority, loses his remedy against one of them. It has, moreover, been suggested, upon great apparent soundness of princi- ple (in Mr. Hare's note to Birkmyr v. Darnell, 1 Smith L. (". 518, Sth Am. ed.), that the question of the defendant's liability being direct and collateral, is not necessarily wholly dependent upon the withdrawal of all credit from, and the consequent non-liability of, the party who receives the consideration ; in other words, tliat there may be a direct liability, even where the other party is also liable. Thus, where two jointly purchase goods, the liability of one is in no degree lightened by the fact of the other being also liable, nor, where the liability is tlitis co-extensive, is it changed in any way by the goods being in- tended for one rather than for the other, — each being still directly liable, the contract cannot be said to be " to answer for the default of another," and the case would seem to be unafiected by the statute. Thus, in Wainwright v. Straw, 15 Vt. 215, it was held that where a stove ■was sold to two for the use of one, each was liable, and no writing was neces- sary. And where the promises are several instead of joint, yet, if each has bound himself directly and absolutely, the mere fact that the consideration moves to one only, ought not, it would seem, to turn into a mere collateral that which was in fact an original contract. " It would scarcely seem," as was Baid by Story, J., in I^Wolf v. Rabaud, 1 Pet. 500, " a case of a mere collateral undertaking, but rather, if one might use the phrase, a trilateral contract. Each is a direct, original nrn'mise, founded upon the *anie consideration:" Townsley v. Sumrall, 2 lb. 182; Proprietors v. Abbott, 14 N. H. lo7. Such a view is not, however, recognized by the class of cases first referred to, and in Taylor v. Drake, 4 Strob. 437, it was said that to make the delivery of goods to the one also serve as a consideration for the promise of the other, would be to strike down the statutory shield at a blow. 2. Where the promise is given Kubseqtiently to the creation of the debt, it is evident that the mere existence of that debt cannot, even at common law, be a sufficient consideration for tlie promise. (See hifra, notes to page *194.) Another consideration must exist to support the promise, and this may be one of two kin Is, — it may either grow out of the debt itself, being connected therewith, mch as the forbearance to sue the original debtor, or it may be a new and in- 120 LECT. III.] GUARANTIES. 113 pay the debt of another if that other does not ; and that, consequently, where the immediate object is that dependent consideration. In the first case, although the promise could be supported at common law, it is within the statute, and a writing is neces- sary ; in the second, the statute does not apply : Leonard v. Vredenburgh, 8 Johns. 29. Thus, it is well settled that a forbearance to sue the original debtor, or the discontinuance of a suit already brought, being considerations connected with, and growing out of, the original contract, are, though entirely sufficient at common law, nevertheless within the Statute of Frauds : Fish v. Hutchinson, 2 Wils. 94 ; Bennett v. Pratt, 4 Den. 275 ; Durham v. Arledge, 1 Strob. 5 ; Nelson v. Boynton, 3 Mete. 396 ; Stone v. Symmes, 18 Pick. 467. So, when the consideration consists in the performance of the preceding contract, as where a plaintiff having been employed by a contractor to build certain walls for the defendant, refused to go on unless the defendant would promise to pay him, which he did, it was. held that the contract was witliin the statute, for the con- sideration related merely to the performance of the antecedent contract : Puckett V Bates, 4 Ala. 390. But where there is some new and original consideration of benefit or harm moving between the new contracting parties, it is well settled that the case is not within the statute : Leonard v. Vredenburgh, supra ; as where a promise to pay an existing debt is made in consideration of property placed by the defendant in the hands of the party tluis promising: Hilton v. Dinsmore, 21 Me. 410; Todd v. Tobey, 29 lb. 219- Olmstead v. Greenly, 18 Johns. 12; Ell- wood V. Monk, 5 Wend. 235 ; Hindman v. Langford, 3 Strob. 207 ; Lee v. Fon- taine, 10 Ala. 755 ; Hall v. Kodgers, 7 Humi3h. 536 ; or where tlie party to whom the promise is made relinquishes a levy on the goods of the debtor: Williams V. Leper, 3 Burr. 1886 ; Castling v. Aubert, 2 East, 325 ; Mercein v. Andrus, 10 Wend. 461 ; Farley v. Cleveland, 4 Cow. 432 ; Tindall v. Touchberry, 3 Strob. 177 ; Dunlap V. Thorne, 1 Kich. 213; (though two late cases in New York and one in Massachusetts, Barker v. Bucklin, 3 Den. 45 ; Kingsley v. Balcome, 4 Barb. 131 ; and Nelson v. Boynton, 3 Mete. 396, seem to hold, in opposition to the prior authorities in the former State, that the consideration must always con- sist in an advantage to the debtor or the promisor, and that a detriment to tlie promisee will not take the case out of the statute.) It has been held in England, and in several of our States, that a promise to indemnify the guarantor against any loss in consequence of his undertaking, is not within the statute, on the ground that the promise is not that another shall perform that which he has undertaken, but that the promisee shall not lose by the engagement into which he has entered: Tliomas v. Cook, 8 B. & C. 728; Chapin r. Merrill, 4 Wend. 657 ; Chapin v. Lapham, 20 Pick. 467 ; Peck V. Thompson, 15 Vt. 637; Holmes v. Knights, 10 N. H. 175; Lucas v. Chamberlain, 8 B. Mon. 276 ; Doane v. Newman, 10 Mo. 09 ; Jones v. Shorter, 1 Ga. 294; but the more recent cases in England and in New York have not acknowledged this reasoning as satisfactory, "for every promise to become answerable for the debt or default of anotlier may be shaped as an indem- nity :" Green v. Cresswell, 10 A. & E. (37 E. C. L. K.j 453 ; Staats v. Ilowlett, 121 113 THE STATUTE OF FRAUDS. [lECT. IH. an agent, in selling for a principal, should take unusual care in selecting the customers, and by assuming respon- 4 Den. 559 ; Kingsley r. Bulcome, 4 Barb. 131 ; and the same view was taken in Drauglian v. Bunting, 9 Ired. 10. — B. [In a careful oi)inion by Biddle, J., in the Common Pleas of Philadelphia, the autliorities on this last point are considered. Quoting Brown on the Statute of Frauds, he says that tJie American decisions have resulted "in tlie rejection by the great preponderance of authority of the doctrine of Green v. Cresswell, and the adoption of Thomas v. Cook — a result readied after much vacillation on the part of Courts of the same State, and not, it must be confessed, by reference to any satisfactory ground of principle. Indeed, most of the deci- sions which reject the doctrine of Green v. Cresswell waive altogether the question of principle, and put it as a matter settled by authority that the promise to indemnify ' is not within the statute.' " However, relying upon the English authorities, the ca.se of Macey v. Childress, 2 Tenn. Ch. 442, and the opinions of Mr. Brown and Mr. Reed in their works upon this statute, he de- cides that a promise to indemnify a guarantor is within the statute : Nugent V. Wolfe, 14 W. N. C. 290.] The strong current of the authorities is that if the party to whom the consid- eration moves becomes personally liable for the payment of tlie debt, the en- gagement of any other person, though made at the same time and upon the same consideration, is a promise to pay the debt of another within tlie statute : 1 Smith's L. C. 527, American note ; lietfield v. Dow, 27 N. J. 440 ; Rogers v. Kneeland, 13 Wend. 114; Aldrich r. Jewell, 12 Vt. 125 ; Cropper t). Pittman, 13 Md. 190 ; Walker v. Richards, 39 N. H. 259 ; Carville v. Crane, 5 Hill, 483 ; Hall V. Farmer, 5 Den. 484 ; Reed v. Holcomb, 31 Conn. 360 ; Boykin v. Doh- londe, 1 Ala. Sel. Cas. 502. This rule is, in fact, that stated by Serj. Williams in his note to Forth v. Stanton, 1 Wms. Saund. 21 1 a, on the authority of Matson t>. Wliaram, 2 T. R. 80, where Buller, J., though he declared that if it were a new question, the leaning of his mind would be the other way, lays it down broadly "that if the person for whose use the goods are furnished be liable at all, any Other promise by a third person to pay that debt must be in writing." " But it may be doubted," says Judge Hare ( 1 Smith's L. C. 527), " whether any decision has yet gone so far as to refuse to give efTect to a direct contract for the purchase of goods merely because one of the purchasers is a surety.'' The provision of the Statute of Frauds was intended to apply only to contracts strictly of surety- ship or guaranty ; and where no credit is given to a third person, and the con- sideration does not move from him, and he is not to be benefited, the statute does not apply, although such third person is primarily liable: Reed v. Hol- comb, 31 Conn. 360. The promise of one person, though in form to answer 'or the debt of another, if founded upon a new and sufficient consideration moving from the creditor and promisee to the promisor, and beneficial to tlie latter, is not within the statute : Dyer v. Gibson, 16 Wis. 557. The decisive question is to whom the credit was given : Boykin v. Dohlonde, 1 Ala. Sel. Cas. 602. A parol promise to accept an order from a debtor in favour of liia creditor, between whom and the promisor there has been no privity, is a promise to pay the debt of another, within the statute: Plumraer v. Lyman, 49 Me. 229 ; Richardson v. WilUams, lb. 558.— s. 122 LECT. III.] GUAKANTIES. 113 sibility for their solvency should preclude all question of negligence on his part, as where an agent sells on a del credere commission, the undertaking so to do need not be in writing (r) ; for, although the transaction may terminate in a liability to answer for the debt of another, his paying that debt was not the immediate object of the contract made with him. The default or miscarriage of another person to which the statute applies need not, however, be a de- fault or miscarriage in payment of a debt or in per- forming a contract. Any duty imposed by the law, although not the performance of a contract, against the breach of which it was the intention of the parties to secure and be secured, must be proved by writing. Thus, where one had improperly ridden another's horse, and thereby caused its death, a promise by a third person to pay a sum of money in consideration that the owner of the horse would not sue the wrong- doer was adjudged to be unavailable, because in parol only (s). In the case of Eastwood v. Kenyon {£), the Court *of Queen's Bench decided a completely new p-j-.^,.-, point on the construction of this branch of the ^ ^ 4tli section. They held that the promise, which is to be reduced into writing, is a promise made to the person to whom the original debtor is liable; but that a promise made to the debtor himself, or even to a third person, to answer to the creditor, would not require to be reduced into writing {u). In that case, the plaintiff was liable to a Mr. Blackburne on a promissory note, (r) Couturier v. Hastie, 9 Exch. 102 ; 22 L. J, (Exch.) 97, s. c. (s) Kirkham v. Martyr, 2 B. & A. 613. (0 11 A. & E. (39 E.' C. L. R) 438. (u) Hargreaves v. Parsons, 13 M. & W. 561 ; see Header v. Kingham, 13 C. B. N. S. (106 E. C. L. R.) 344 ; 32 L. J. (C. P.) 108 ; Wildes v. Dudlow, L. R. 19Eq. 198; 44 L. J. (Ch.) 341. 123 114 THE STATUTE OF ERA UPS. [l.ECT. III. and the defendant promised ilie plaintiff to discharge the note to Blackburne. The Court held, that this was not a promise to answer for the debt of another within the meaning of the 4th section of the Statute of Frauds.^ " If," said Lord Denman, " the promise had been made to Blackburne, doubtless the statute would have applied ; it would have then been strictly a promise to answer for the debt of another ; and the argument on the part of the defendant is, that it is not less the debt of another because the j^romise is made to that other, viz., the debtor and not the creditor, the statute not having in terms stated to whom the promise contem- plated by it is to be made. But w^oio. consideration, we are of opinion, that the statute applies only to promises made to the person to whom another is ariswer- able. We are not aware of any case in which the point * "Tlie statute applies only," said Parke, B., in the recent case of Hargreaves V. Parsons, 13 M. & W. 569, "to promises made to the persons to whom an- other is already, or is to become answerable It must be a promise to be an- swerable for a debt of, or a default in some duty by that otlier person towards the promisee. This was decided, and no doubt rightly, by the Court of Queen's Bench, Eastwood v. Kenyon ;" and the same point had been previously decided by the Supreme Court of New York, in Johnson v. Gilbert, 4 Hill, 178. — R. A promise made to a debtor to pay his debt to a third person is not within the statute: Goetz v. Foos, 14 Minn. 265; Britton v. Angier, 48 N. H. 420; Brown v. Brown, 47 Mo. 130; Barker v. Bradley, 42 N. Y. 316; Tibbetts v. Flanders, 18 N. 11. 284. When one agrees to pay for lumber to be furnished to another, this is an original promise : Weyand i'. Crichfiehl, 3 Grant, 113; Backus V. Clark, 1 Kan. 303. A parol promise to pay the debt of another is binding, where the promiser holds in liis hands funds, securities, or property of the debtor : Fullam v. Adams, 37 Vt. 39 1 ; Berry v. Doremus, 30 N. J. 399 ; Clymer v. De Young, 54 Pa. St. 118 ; Jennings v. Crider, 2 Bush, 322 ; Wilson V. Bevans, 58 111. 233. When a third person has a lien on property for the payment of his debt, and he gives up his lien to a person who has an interest in the property, upon his promise to pay the debt, such promise is not within the statute: Luark v. Malone, 34 Ind. 444; Hedges v. Strong, 3 Or. 18; Lud- ■wick V. Watson, lb. 256 ; Davis v. Banks, 45 Ga. 138. A promise by A. to B. in consideration of property delivered to him by B., is, in its relation to the creditors so to be paid, within the Statute of Frauds : Clapp v, Lawton, 31 Conn, 95. — s. 124 LECT. ITT.] GUARANTIES. 114 has arisen, "^'or in which any attempt has been made to put that construction upon the statute '- -^ which is now sought to be established, and which we think not to be the true one." It may be observed here that formerly in determin- ing whether a guaranty had been sufficiently reduced to writing to satisfy the 4th section, the question which most frequently arose was whether the consideration did or did not sufficiently appear upon the written instru- ment. Bat now, in the case of promises to answer for the debt, default, or miscarriage of another person, it is no longer necessary that the consideration should appear upon the face of the written memorandum. By the Mercantile Law Amendment Act, 1856 (19 & 20 Vict. c. 97), s. 3, no special promise to be made by any per- son after the passing of this Act (29th July, 1856) to answer for the debt, default, or miscarriage of another person, being in writing and signed by the party to be charged therewith, or some other person by him there- unto lawfully authorized, shall be deemed invalid to support an action, suit, or other proceeding to charge the person by whom such promise shall have been made, by reason only that the consideration for such promise does not appear in writing, or by necessary inference from a written document {x)} (x) Glover v. Hackett, 26 L. J. (Ex.) 416; 2 H. & N. 487. ^ [Note by Mr. J. C. Syraons.] In Kennaway r. Treleaven the guarantee •wa.s thus worded : " Gentlemen, I hereby guarantee to you the sum of £250, in case Mr. P. should default in liis capacity of agent and traveller to you." It ■wjis held that the future employment of Mr. P. was the consideration of this promise, and that it sufficiently appeared by inference from the terms of the guarantee. But the case of Haigh v. Brooks, 10 A. & E. (37 E. C. L. R.) 309, is the strongest on this point, and has carried the latitude of inference to its extreme length : it was cited in the recent case of Chapman v. Sutton, 15 L. J. C. P. 166; and the guarantee was thus worded: "In consideration of your being in advance to Messrs. John Lees &. Co. in the sura of £10,000, for the 125 115 THE STATUTE OF FRAUDS. [lECT. III. There is a recent case in which a single signature *to an agreement was held under the circum- L -• stances to have been made in a double capacity, jnirchase of cotton, I do hereby give you my guarantee for that amount (say £10,000) on their behalf;" and it was held, that whether the consideration, "your being in advance," was or was not a good consideration, depended upon the transaction to which the guarantee referred. Lord Denman, C. J., re- marks: "Being in advance does not necessarily mean that the plaintiff was in advance at the time of the giving of the guarantee. It may have been in- tended as prospective." The judgment in' the Exchequer Chamber was given upon this ground; and Lord Abinger, C. B., said that "there was in tlie guar- antee an ambiguity that might be explained by evidence, so as to make it a valid contract." Raikes v. Todd, above cited, is a good illustration of an insufScient disclosure of consideration. The guarantee was thus expressed : " Gentlemen, I hereby undertake to secure to you tlie payment of any sums of money you have ad- vanced, or may hereafter advance, to Messrs. Davenport & Co., on tlieir account with you, commencing on the 1st November, 1831, not exceeding £2000." Here it was held that the guarantee disclosed no consideration for the past advances, and was to that extent invalid, but that it was good as regarded the future advances. Thus, if the guarantee consists of several promises, that which is bad may be rejected without invalidating the remainder of the guar- antee. There is no practical difference between past and future considerations, Bo long as the guarantee discloses a sufficient consideration in law to support the promise (of which see the next lecture). The consideration need not be co-extensive with the promise. (See Raikes v. Todd, per Ld. Denman, C. J.) And the courts will no longer enter into the question of adequacy of the con- sideration. See Chapman v. Sutton, supra, which is the last case where tlie question of the sufficiency of the inference of a consideration has arisen. See also Lang v. Nevill, 6 Jur. 217, and Johnston v. Nicholls, 1 C. E. (50 E. C. L. R.) 251. It is permissible to adduce, in evidence of the consideration, the written cor- respondence between the parties, if that corresiiondence has been referred to in the guarantee, but not otherwise: see Dobell v. Hutchinson, 3 A. «& E. (30 E. (1 L. R.) 355, and Higgins v. Dixon, 14 L. J. Q. B. 329. The rules which govern the construction of contracts, and which will be afterwards considered, of course apply to guarantees. But there is one pecu- liarity attaching to them, which it may be well to notice here. Guarantees are either for definite or indefinite sums or periods : where tliey are not limited as to the amount guaranteed, or, being so limited, are in either case intended to affect future transactions until revoked, they are termed continuing guarantees. The distinction between these two classes of guarantees is one of some nicety, and often of importance, as regards the sufficiency of the consideration, which again frequently depends upon whether it be past or prospective. The only safe rule of construction is to give the words used their natural meaning, taking into account the attendant circumstances which are admis- 126 LECT. III.] GUARANTIES. 116 viz., as agent for one of the contracting parties, and also independently as a guarantor. The facts were as sible in evidence to throw light upon the intent of the parties to the instru- ment. This rule has been recently applied in the case of Allnutt v. Aslien- den, 5 M. & G. (44 E. C. L. R.) 392, -wliere the guarantee was thus worded : " I hereby guarantee Mr. John Jennings's account with you for wine and s.pirits, to the amount of £100." This was held to apply to an existing ac- count ; " for," said Tindal, C. J., " by account I understand the parties to mean some account contained in some ledger or book ; and the case shows that there was such an account existing at that time. The natural construc- tion of the guarantee, therefore, is that it relates to that account." In the subsequent case of Hitchcock v. Humfrey, 5 M. & G. (44 E. 0. L. R.) 559, the defendant, having guaranteed the payment of goods to be supplied by the plaintiffs to A., up to the 1st of July, gave, on the 9th of April, the follow- ing additional guarantee : " In consideration of your extending the credit already given to A., and agreeing to draw upon him at three months from the first of the following month, for all goods purchased up to the 20th of the preceding month, I hereby guarantee the payment of any sum that shall be due and owing to you upon his account for goods supplied." This was held to be a continuing guarantee : the words " following month " and " preceding montli " being held to have a general application, the terms of the first guarantee being taken into account in construing the language of the second. For other cases of the construction put on these instruments, see Mayer v, Isaac, 6 M. &. W. 605; Jenkins v. Reynolds, 3 B. & B. (7 E. C. L. R.) 14; Allan V. Kenning, 9 Bing. (23 E. C. L. R.) 618 ; Batson v. Spearman, 9 A. & E. (36 E. C. L. R.) 298; Hargreave v. Smee, 6 Bing. (19 E. C. L. R.) 244; Nicholson v. Paget, 1 Cr. & M. 48 ; Martin v. Wright, 14 L. J. Q. B. 142 [since reported, 6 Q. B. (51 E. C. L. R.) 917] ; and Johnson v. Nicholls, supra.^ ^ So a guarantee, " If D. wishes to take goods of you, we are willing to lend our names as security for any amount he may wish," was held not to extend beyond the first delivery of goods : Rogers v. Warner, 8 Johns. 119. The same construction was given in Aldricks v. Higgins, 16 S. & R. 212, where the words were : " L. C. having a desire to enter into trade in a small way, we hereby offer ourselves as security to any gentleman who may feel disposed to give him credit not exceeding $700, or anything less, as he may think proper to contract;" in White v. Reed, 15 Conn. 4-57; "In any sum my son G. may become indebted to you, not exceeding $200, I will hold myself ac- countable ;" in Anderson v. Blakely, 2 W. & S. 237 : " Mr. P. having informed me that he is making some purchases from you, and that you wish some refer- ence, I would say that you might credit him with perfect safety, and that anything lie might purchase from you I will see paid for," where the court said : " There is more reason, perhaps, for giving a freer interpretation where the sum is, as in several of tlie cases, limited, because tliere tlie party in- trenches himself within a certain amount, beyond which he can in no ca.se be made liable. But when there is no restriction of the amount, the guaran- 127 116 THE STATUTE OF FEAUDS. [lECT. III. follows : — By articles of agreement under seal between J. A. & Co. and Y. & Co., Y. & Co. agreed to do cer- tain work for which J. A. & Co. were to make certain payments, and the agreement contained this clause : " It is further understood between the parties to this contract that J. O. Schuler guarantees payment to Y. & Co. of all moneys due to them under this contract." The attestation clause was "signed and delivered by the said J. A. & Co. in the j)resence of C. T.," and Schuler, acting under a power of attorney, signed as The cases turn, as remarked by the Lord Chief Justice in that of Martin v. "Wright, on the particular terms of each guarantee, and it is therefore impos- sible to lay down any less general rule of construction than that which we have endeavoured to give. Promises to answer for tortious defaults are within the operation of the statute, as well as guarantees of credit. Kirkham v. Marter, 2 B. & Aid. 613, is a leading authority on this point. A. having killed B.'s horse, C guaran- tees to B., the owner, to answer for the damage : this was held to be within the statute. Lord C. J. AbboU uistinguishes this case from that of Eeed v. Nash, 1 Wils 305, but which jSerjeant Williams thinks it overrules : 1 Saund. 211, c. n. 1. Shares in a joint stock company are mere choses in action ; but railway shares, it is submitted, inasmuch as they give an interest in land, would fall under the operation of the 4th section. tee sliould be carefully scanned, to see whether it justifies a party in the large construction contended for." And the same view was taken in Whitney v. Groot, 24 Wend. 82, upon the words : " We consider I. V. good for all he may want of you, and we will sell him all he reasonably asks of us on credit, and we will indemnify the same." On the other hand, in Grant v. Kidsdale, 2 Harr. & J. 186, " I will guarantee their engagements, should you think it necessary, for any transaction they may have with your house," was held to be a continuing guarantee till countermanded, but the reasons for the judg- ment are not reported. Instances of continuing guarantees will be found in Clark V. Burdett, 2 Hall, 197 ; Mussey v. Eayner, 22 Pick. 223; Bent v. Harts- horn, 1 Mete. 24; Douglass v. Reynolds, 7 Pet. 113; Lawrence v. M'Calmont, 2 How. 426. As, for example, " Mr. R. is about to establish a store of books and stationery. He will commence on a limited scale with the intention of enlarging the business next spring. He wishes to purchase school-books, Ac, on a credit of four or six months, and paper, &c., on commission. For the faithful management of the business, and punctual fulfilment of contracts re- lating to it, the subscriber will hold himself responsible :" Mussey v. Rayner. While it is undoubtedly true that each case must depend on the particular terms of the guarantee, aided by the attendant circumstances of the parties, it 128 LECT. III.] GUARANTIES. 116 follows : " P. P. A.— J. A. & Co., J. O. Sclmler." Y. 6 Co. sued Schiller as guarantor, and evidence was has been often suggested, if not held, that the language should be very strong to justify a court in holding a guarantee to be a continuing one, until notice given to the contrary : per Story, J., in Cremer v. liigginson, 1 Mass. 3 >. : Nicholson ■;;. Paget, 1 Cr. & M. 48 ; while, on the other hand, it has been more repeatedly held that the ordinary maxim, that the words of the instrument should be taken most strongly against the party using them, fully applied to guarantees : Mason v. Pritchard, 12 East, 227 ; Merle v. Wells, 2 Camp. 413 ; Drummond v. Prestman, 12 Wheat. 515 ; Douglass v. Eeynolds, supra; Mayer V. Isaac, 6 M. & W. 610 ; where the remarks in Nicholson v. Paget, supra, are disapproved. There is an important class of ca.ses upon the subject of notice to the guar- antor, the doctrine of which may be said to be almost peculiarly American. It is a rule of the common law, that wliere a party stipulates to do a certain thing in a certain specific event, which may become known to him, or with which he may make himself acquainted, he is not entitled to any notice, unless he stipulates for it ; but when it is to do a thing which lies in the peculiar knowledge of the opposite party, then notice ought to be given him : Vyse V. Wakefield, 6 M. & W. 452. But in the case of Russell v. Clark, 7 Cranch, 69, Edmondston v. Drake, 5 Pet. 624, this principle was, in its appli- cation to mercantile guarantees, thought ratlier an obligation of commercial than of the common law, and in the subsequent case of Douglass v. Reynolds, 7 lb. 113, which is a leading case upon the subject, this view was directly sanctioned, and it was held that notice of the acceptance of a guarantee, and of tlie giving credit under it, must be given to the guarantor immediately or ■within reasonable time (unless, indeed, in the case of a continuing guarantee, when it would not be necessary to give notice of each successive transaction as it arose, but after the transactions were closed, notice of the whole amount for which the guarantor was held responsible sliould be given to him within a reasonable time) ; and further, that demand of performance must be made upon the principal, and immediate notice of his default given to the guarantor, and that a failure so to do would discharge t-he latter, unless it be clearly made out that under the circumstances of tlie case no injury had resulted to him from the neglect. This rule has been frequently affirmed by the Supreme Court of the United States, and adopted in most of the States, and tlie student will find the authorities collected and their distinctions classified in the first volume of American Leading Cases, p. 50, note to Douglass v. Reynolds. Some of the authorities where the subject is most elaborately discussed, are Craft V. Ishara, 13 Conn. 28 ; Wildes v. Savage, 1 Sto. 22; Howe v. Nickels, 22 Me. 175. In many of the cases notice would have been necessary under tlie common law rule referred to, but the authorities have based them upon the principles of commercial law. In New York, however, dissent from this doctrine of notice has been ex- pressed in Douglass v. Howland, 24 Wend. 35 ; Whitney v. Groot, lb. 82 ; Smith V. Dann, 6 Hill, 543 ; Curtis v. Brown, 2 Barb. 51 ; Union Bank i\ Coster, 3 N. Y. 203. In the first of these cases the defendant's agreement was such 9 129 116 THb: STATUTE OF FEAUDS. [lECT. III. given at the trial of statements by Scliulcr at the tinie of execution that he intended to sign on his own behalf (viz. that one B. sliould faithfully perform an agreement with the plaintiff to account and pay over all such sums as should be found due from him to the latter), as would not have required notice under any circumstance, as the events to which it referred, though prospective, were not dependent on the option of the plaintifi'; but the court held that as a general rule, when nothing on the face of the guarantee required notice, the court could not exact one as a condition precedent to a recovery. In the opinion of the annotator referred to, the weight of reasoning lies between these two classes of cases, and points to the following rule : that in all cases in which tlie contract of a guar- antor does not determine precisely the nature and the amount of liability for which he is willing to make himself responsible, and leaves either or both these points to the clioice of the person who seeks to enforce the guarantee, the latter is bound to give notice of the mode in which he has exercised the election thus accorded him, and cannot complain that there has been a default on the part of the defendant before giving him precise information as to what is necessary to be done in order to fulfil his engagements; but that when the defendant's contract, instead of leaving open the cause of action upon which he is willing to make himself liable, points out some mode of performance, in consideration of which he is willing to be bound, either directly or on behalf of another person, an action will lie without notice as soon as the consider- ation has been performed. Notwithstanding a few decisions or dicta to the contrary, 2 M'Lean 21, lb. 369, lb. 557, the weight of authority has unquestionably settled, that however necessary notice may be to a recovery, it need not be averred in the declara- tion : Gibbs v. Cannon, 9 S. & E. 198 ; Ehett v. Poe, 2 How. 485 ; Salisbury v. Hale, 12 Pick. 424 ; Dole v. Young, 24 lb. 250 ; Wildes v. Savage, 1 Sto. 22 ; inasmuch as the want of notice will only operate as a defence to the guarantor where it has resulted in some actual injury to him, and is different in its oper- ation in this respect from the notice required to charge an endorser of a negotiable instrument, in which case the rule is inflexible and open to no inquiry whether notice could have availed him or not, as in either case the endorser is absolutely discharged. Before leaving the subject of guarantees, it may be remarked that in Peiin- sylvania, a peculiar signification has been given to the word guarantee, as dis- tinguished from other words of similar import, such as "agree to become answerable," or the like, and a guarantee of a debt due by another, merely imports an undertaking that the debt is susceptible of collection, and the guarantor is not liable until the insolvency of the principal is shown. Such a course of decision, though it has been sometimes regretted, is firmly estab- lished by a class of cases: Johnston v. Chapman, 3 P. & W. 18 ; Isett v. Hoge, 2 Watts, 128 ; Snevily v. Ekel, 1 W. & S. 204 ; Parker v. Culvertson, 1 Wall. Jr. 161.— R. A guarantor may specify in the letter of credit the terms on which he will be bound ; and if these terms are complied with he is bound, though the law would have prescribed the performance of other acts liy the party seeking to 130 LECT. III.] GUARANTIES. 116 as well as on that of J. A. & Co. A verdict was found for the plaintiffs. Schuler moved for a new trial, on the ground that on the face of the agreement he had not signed on his own behalf, and that the evidence was inadmissible to show that he had. It was held, how- ever, by the Court of Appeal, affirming the decision of the Queen's Bench Division, that, there being an ambiguity on the face of the contract as to the capacity in which Schuler signed, evidence that the latter in- tended to sign in his own right as well as *on be- r;:: . -. r--i half of J. A. & Co. did not contradict the docu- ment, and was admissible, and that Schuler must be taken to have signed in the double capacity of agent and guarantor (y). There is one thins; which, thousfh collateral to the Law of Contracts, relates so j^cculiarly to this branch of the Statute of Frauds, that I think it ought to be mentioned. After the 4th section of the Statute of Frauds had rendered verbal guaranties unavailable, actions upon the case for fake representations, under circumstances in which, before the Act, the transaction would have been looked on as one of guaranty, were {y) Young v. Schuler, 11 Q. B. D. 651. subject him on his guarantee. Therefore a guarantor undertaking to pay on receiving reasonable notice of the failure of the principal debtor to pay, dis- penses with notice of the acceptance of the guarantee, even if the law would have required such notice : Wadsworth v. Allen, 8 Gratt. 174. See also Baker v Rand, 13 Barb. 152 ; Spicer v. Norton, lb. 542 ; Bickford v. Gibbs, 8 Cush. 154; Klein v. Currier, 14 111. 237; Farmers' and Mechanics' Bank t). Kercheval, 2 Mich. 504. As to the necessity of notice of acceptance of the guarantee, see Unangst v. Hibler, 26 Pa. St. 150 ; Lawton v. Maner, 9 Rich. 335 ; Yancy v. Brown, 3 Sneed, 89 ; M'Dougal v. Calef, 34 N. H. 534 ; Kellogg v. Stockton, 29 Pa. St. 460; Cahuzac v. Samini, 29 Ala. 288; Bright v. M'Knight, 1 Sneed, 158 ; Wardlaw v. Harrison, 11 Rich. 62G; Paige v. Parker, 8 Gray, 211 ; ^McNaugh- ton t). Conkling, 9 Wis. 316; Powers v. Bumcratz, 12 Ohio St. 273; ]Maynard V. Morse, 36 Vt 617.— s. 131 117 THE STATUTE OF FRAUDS. [lECT. III. often brought. For instance, if A. went to a tradesman to persuade him to supply goods to B., by assuring him that he should be paid for them, the tradesman, in case of B.'s default, could not bring an action of assumpsit as upon a guaranty, because there was no written memo- randum of what j)assed ; but he brought an action on the case, in which he accused A. of having knowingly deceived him as to B.'s ability to pay : and if the jury thought this case made out, he succeeded in his action, and received pretty nearly the same sum as he would have done if there had been a guaranty. However, as this was inconsistent with the object of the Statute of Frauds, the legislature put an end to it by enacting, in statute 9 Geo. IV. c. 14, s. 6, commonly called Loid '^'Tenterden's Act (which, however, is not con- ^ -' fined to cases within the Statute of Frauds) (z), " that no action shall be brought whereby to charge any person upon or by reason of any re23resentation or assur- ance made or given concerning or relating to the char- acter, conduct, credit, ability, trade, or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods upon (a), unless such representation or assurance be made in writing, signed by the party to be charged there- with." ^ (z) Devaux v. Steinkeller, per Tindal, C. J., 6 Bing. N. C. (37 E. C. L. E.) 88. (a) It was probably intended that the words " money or goods upon," which were added in the Committee upon the Bill, should precede the word " credit." ^ It appears that statutes similar to this section of Lord Tenterden's Acts have been adopted in Alabama, California, Indiana, Kentucky, Maine, Massachu- setts, Michigan, Missouri, Oregon, South Carolina, Vermont, Virginia, and Wyoming Territory. In some of these statutes is incorporated the provision that the party shall be bound by the signature of an agent duly authorized to sign. See the acts collected in the Appendix of Statutes to Mr. Eeed's Work on the Statute of Frauds. It has been held that the existence of fraud will take the case out of the statute: Warren v. Barker, 2 Duv. 156; Sims v. Eiland, 132 LECT. III.] GUARANTIES. 118 A trader being in bad circumstances and indebted to tlie defendant, applied to plaintiff for goods on credit, and referred him to defendant for her character ; in fact, she had dealt with defendant to a considerable amount but had fallen into arrear, and defendant had ceased to supply her for some time, but had gone on again upon her undertaking to discharge her arrears at so much per week. The plaintiff inquired of the defendant's shop- man as to her credit, and defendant, on being referred to by the shopman, said, that he might give her a fair character, which the shopman repeated to the plaintiff, and he thereu]3on trusted her with goods. Tiiese goods she sold, and paid defendant with the ^proceeds, ^^ _. but never paid the plaintiff. Tlie Court of '- -^ King's Bench decided that evidence of the defend- ant's representation through his shopman to the plain- tiff could not be admitted, not having been made in writing (Z>). It has since been considered in the construction of this statute, that a representation by a jjerson, that the title-deeds of an estate which A. had bought were in that person's possession, that nothing could be done with the estate without his knowledge, and consequently that the plaintiff would be safe in lending money to A., was a representation made concerning A.'s ability ; and, therefore, as it was not in writing, the defendant w^as not liable on account of its falsehood (c). It has also been considered that a representation by a partner as to the credit of a firm in which he was a partner is a repre- (6) Haslock v. Ferguson, 7 A. & E. (34 E. C. L. E.) 86. (c) Swan V. Phillips, 8 A. & E. (35 E. C. L. K.) 457. 57 Miss. 607 ; but the fact that the party making the representation will derive benefit from the credit given is not, of itself, sufficient to raise a con- clusive presumption of fraud : Pearson v. Seligman, 48 L. T. N. S. 4S2 ; Mann V. Blanchard, 2 Allen, 386. See also McLean v Dun, 1 Ont. App. 153; St. John V. Ilendrickson, 81 Ind. 350 ; Hunter i-. Randall, 02 Me. 423. 133 119 THE STATUTE OF FRAUDS. [lECT. III. sentation as to tlie credit of another j^erson within the meaning of the statute (d). In Wade v. Tatton, which was decided in the Court of Exchequer Chamber, that Court determined that where a written representation is made as to the char- acter of a third person, and also a parol representation of the character of the same person, and the person de- ceived thereby trusted to both representations, and would not have trusted to either of them alone, that the party deceived ^thereby may maintain an action I- ^ -I — a material part of the representation having been made in writing {e). The effect of this section (of Lord Tenterden's Act) was also much discussed in the great case of Lyde v. Barnard (/), in which the Judges of the Court of Ex- chequer differed, but the judgments in which will repay a very attentive perusal. It has been held that, although under the above sec- tion of Lord Tenterden's Act, the signature of an agent generally is not sufficient, yet that in the case of a bank- ing company formed under 7 Geo. IV., c. 46, the signa- ture of the manager is the signature, not merely of an agent, but of the company itself, and therefore " the signature of the party to be charged " w^ithin that sec- tion (g). In the case just cited, it did not apjDcar that there was any other mode of signing by the bank except by the manager. The third of the species of contracts enumerated by the 4th section, and required by it to be evidenced in writing is — any agreement made in consideration of mar- riage. (d) Devaux v. Steinkeller, 6 Bing. N. C. (37 E. C. L. E.) 84. (e) 25 L. J. (C. P.) 240; 18 C. B. (86 E. C. L. R.) 371. (/) 1 M. & W. 101. (g) Swift V. Winterbotham, L. R. 8 Q. B. 244; 42 L. J. (Q. B.) 111. 131 LECT. III.] MAERIAGE CONTRACTS. 120 It certainly would strike any one (except, perhaps, a lawyer) that a promise by a woman to marry a man, in consideration of his promise to marry her, was an agree- ment made in '''consideration of marriage. And, r*ioi-| indeed, in Philpott v. Wallet (A), it was ex- pressly so decided. That was an action of assumpsit for breach of promise of marriage, in which the jury found the promise, and found also that it had not been reduced to writing. And it was objected, " that this is no promise within the Statute of Frauds and Perjuries, for that must be intended of promises to pay money upon marriages, and not of promises to marry." But the report proceeds to say that to this it was answered and resolved, that this promise is directly within the words of the statute, and not out of the intent, because the promise is, that in consideration the one would marry the other, the other would marry him. However, as Lord Coke has observed, the reason of the law is not always like a man's natural reason ; and, accordingly, the case of Philpott v. Wallet has been overruled by Cork V. Baker (i), and it has been decided by that case, and Harrison v. Cage {k), that an agreement between two persons to marry is not an agreement in considera- tion of marriage, within the meaning of this enactment, but that these terms are confined to promises to do something in consideration of marriage, other than the performance of the contract of marriage itself:^ {h) 3 Levinz, 65. (i) 1 Str. 34. {k) 1 Ld. Raym. 386. * The doctrine of these cases was affirmed in Ogden v. Ogden, 1 Bland, 287, and Clark v. Pendleton, 20 Conn. 508. — r. Other cases are George v. Bartoner, 7 Watts, 532 ; Crane v. Gough, 4 Md. 322; Withers v. Ricliardson, 5 Mon. 94; Blackburn v. Mann, 85 111. 222; Short V. Stotts, 58 Ind. 36 ; Morgan v. Yarborough, 5 La. Ann. 316. But it has been held that a contract to marry in five years is within the prohibition of the statute in regard to parol contracts not to be performed within a year: Derby v. Phelps, 2 N. H. 516; see also Houghton v. Houghton, 14 Ind. 505. 135 121 THE STATUTE OF FRAUDS. [lECT. III. Thus a promise made by the intended husband to the ^ intended wife before marriage to settle her *per- r*1221 • . . L -^ sonal property on her, will not be carried into effect by the Court of Chancery unless evidenced by writing (l). But if so evidenced it would be otherwise, although the writing acknowledged the promise to have been made before the wedding, but it was, in fact, made after {m). And where a promise was made by a testa- tor to the intended husband of his daughter, previous to her marriage, that she should share in the testator's property equally with the rest of his children, and the daughter married the plaintiff, and died in the testator's lifetime, leaving issue, but the testator, who had not given anything to the daughter on her marriage, gave by his will a legacy to one surviving daughter, and be- queathed the residue of his projDerty to another, leaving nothing to his deceased daughter or to the plaintiff, her husband, it was held that the promise of the testator to the plaintiff, although verbal only, yet being repeated in terms in an affidavit made by the testator in a former legal proceeding against the plaintiff, the affidavit was a sufficient compliance with the requirements of the stat- ute (n). We now come to the fourth class of promises, enu- merated by the 4th section, viz. — any contract, '- -' '""or sale of lands, tenements, or hereditaments, or any interest in or concerning them. These words, you will observe, are exceedingly large, comprehending not merely an interest in land itself, but any interest concerning \i} And the main questions (0 Countess of Montacute v. Maxwell, 1 Str. 236 ; 1 P. Wms. 618 ; Tweddle f. Atkinson, 30 L. J. (Q. B.) 265. (m) lb. ; s. V. Eandall v. Morgan, 12 Ves. 73. (n) Barkworth v. Young, 26 L. J. (Ch.) 153 ; Hammersley v. De Biel, 12 C. & Fin. 45. ^ An oral promise to pay presently the price of lands conveyed at the time 136 LECT. III.] CONTRACTS FOE THE SALE OF LANDS. 123 which have arisen have accordingly been — Whether particular contracts, falling very near the line, do or do not concern land, so as to fall within these terms. Thus it was held in Crosby v. Wadsworth (o), that an agree- ment conferring an exclusive right to the vesture of land {i. e., a growing crop of mowing grass), during a limited time and for given purposes, is a contract for sale of an interest in, or at least concevning lands ; and for the non-performance of which, if made by parol, an action cannot be maintained. In Tyler v. Bennett (j^), an agreement that the plaintiff should be allowed to take water from a particular well was held to concern land, and to require a writing.^ On the other hand, in Evans V. Roberts (5-), where the plaintijff had sold to the de- Co) 6 East, 602 ; Carrington v. Eoots, 2 M. & W. 248. (V) 5 A. & E. (31 E. C. i.. R.) 377. (9) 5 B. & C. (11 E. C. L. R.) 829. to the promisor is not within the statute : Basford v. Pearson, 9 Allen, 387 ; Holland v. Hoyt, 14 Mich. 238; Calhoun v. Atchinson, 4 Bush, 261.— s. ^ So of a right of permanently overflowing the land of another : Harris v. Miller, 1 Meigs, loS, or erecting a permanent mill-dam : Stevens v. Stevens, 11 Mete. 251 ; Thompson v. Gregory, 4 Jolins. 81. — k. So a right to dig and carry away ore : Riddle v. Brown, 20 Ala. 41-5 ; Briles v. Pace, 13 Ired. 279. [A leasehold interest in an oil well has been held to be within the act : Henry v. Colby, 3 Brewster, 175 ; and also in a salt well: M'Dowell v. Delap, 2 Marsh. 33.] An agreement not to claim dam- ages for flowing one's land, if the other party will erect a dam and mill, is not the conferring of any right, interest or easement in land, but only a waiver of claim for pecuniary damages, and need not be in writing : Smith v. Goulding, 6 Cush. 154. The right to overflow another's land by a mill-dam is an inter- est in land which cannot pass by parol: Carter v. Harlan, 6 Md. 20. A license by the owner of a fee of a highway : Brown v. Galley, Hill & Den. 308 ; Hall V. M'Leod, 2 Mete. (Ky.) 98. So a license to flow lands: French v. Owen, 2 Wis. 250. So a right to maintain a dam on the land of another: Moulton v. Faugh t, 41 Me. 298 ; Trammell v. Trammell, 11 Rich. 471. No deed or other writing is necessary to convey the interest of the owner of a building stand- ing on another's land : Keyser v. School District, 35 N. H. 477. A license to insert beams in the wall of a house is not within the statute : McLarney v. Tettigrew, 3 E. D. Sm. 111. So an agreement to take a certain annual compen- sation for damages occasioned by flowing land by a mill-dam : Short v. Wood- ■ward, 13 Gray, 86. So the grant of a right to float logs on a stream : Rhodes r. Otis, 33 Ala. 578. — s. 137 l'J3 THE STATUTE OF FRAUDS. [lECT. III. fendant a growing crop of potatoes, this was decided not to be a sale of any interest in or concerning land. It was contended, that, as the potatoes were deriving nour- ishment and support from tlie soil, and would have passed as part of tlie land by a conveyance of it, an in- terest in them must at all events be taken to concern land ; and *great reliance was placed on the de- ^ ^ cision in Crosby v. Wadsworth, which I have al- ready cited ; where a growing crop of grass was sold and was to be mowed by the vendee, and the sale was held to fall within the statute, and to require a writing. However the Court held that that case was distinguish- able. "Although," said Mr. Justice Holroyd, " the ven- dee might have had an incidental right by virtue of his contract to some benefit from the land while the potatoes were arriving at maturity, yet I think he had not an in- terest in the land within the meaning of this statute : he clearly had no interest so as to entitle him to the possession for any period, however limited, for he was not to raise the potatoes. Besides, this is not a contract for the sale of the produce of any specific part of the land, but of the produce of a cover of land. The plain- tiff did not acquire by the contract any interest in any specific portion of the land ; the contract only binds the vendor to sell and deliver the potatoes at a future time at the request of the buyer, and he was to take them away." With regard to this case, it is worth while to observe, that though, according to the decision of the Court, the contract did not fall within the 4th section, as the sale of an interest in or concerning lands, yet it would clearly fall within the 17th, to which, before the conclusion of these Lectures, I shall have occasion to advert, as being a sale of *goods and chattels ; but no point arose •- -J upon that section, because one shilling had been 138 LECT. III.] CONTKACTS FOR THE SALE OF LANDS. 125 paid as earnest money, which is one of the modes of satisfying the provisions of the 17th section. The result of these cases, and of the many others which have been decided on the subject, is thus stated in Williams' Saunders ir) : It appears to be now settled, that, with respect to emblements or fructus industriales (?. e., the corn and other growth of the earth, which are produced, not spontaneously, but l)y labour and indus- try), a contract for the sale of them while growing, whether they are in a state of maturity, or whether they have still to derive nutriment from the land in order to bring them to that state, is not a contract for the sale of any interest in land, but merely for the sale of goods : Evans v. Koberts (.s) ; Sainsbury v. Mathews {t). And it will make no difference whether they are to be reaped or dug up by the buyer or by the seller : Jones v. Flint {u)} The true question is, whether, in order to (r) Duppa V. Mayo, 1 Wms. Saund. 277 c. n (/). A similar and very clear view of this subject is also taken by Lord St. Leonards — ^see Concise View of Law of V. & P. 75, ed. 18.51. (s) 5 B. & C. (11 E. C. L. E.) 829. [t) 4 M. & W. 343. (m) 10 A. & E. (37 E. C. L. E.) 753. ^ In Evans v. Eoberts (which was approved in Dnnne v. Ferguson, 1 Hayes, Exch., 542, where is an able opinion by Joy, Ch. Baron), the case of Emmer- son V. Heelis, 2 Taunt. 38, was virtually overruled, and Waddington v. Bristow, 2 B. & P 452, endeavoured to be explained. These cases decided that a sale of growing turnips and hops was within the fourth section of the statute. In Eodwell V. Phillips, 9 M. & W. 501, Lord Abinger suggested that the differ- ence appeared to be between annual productions raised by the labour of man, and the annual productions of nature, not referable to the industry of man, except at the period when they were first planted ; which, together with the disapprobation expressed of Waddington v. Bristow, supra, would seem to de- termine that an annual crop is not within the fourth section of the statute ; and it seems to be generally held, on this side of the Atlantic, that such a crop is personal property, and as such can be sold by the owner or taken in ex- ecution : Newcomb v. Eayner, 2 Johns. 430 n. ; Whipple v. Foot, lb. 418 ; Stewart v. Doughty, 9 lb. 108 ; Austin v. Sawyer, 9 Cow. 39 ; Stambaugh v. Yeates, 2 Eawle, 161; Myers i'. White, 1 lb. 356; Bank of Pennsylvania f. Wise, 3 Watts, 406 ; Penhallow v. Dwight, 7 Mass. 34 ; Cutler v. Pope, 13 Me. 139 125 THE STATUTE OF FRAUDS. [lECT. III. effectuate the intention of the parties, it be necessary to give the buyer an interest in the land, or whether an 377 ; Craddock v. Riddlesbarger, 2 Dana, 205 ; Brittain v. McKay, 1 Ired. 265 ; Green v. Armstrong, 1 Den. 556 ; though, if not severed, it would pass by a conveyance or devise of the land : Bank of Pennsylvania v. Wise, 3 Watts, 406 ; SalUide v. James, 6 Pa. St. 144 ; Bear v. Bitzer, 16 Pa. St. 175 ; Groft' v. Levan, lb. 179 ; and in the last two cases it was suggested that the reason why a pre- vious sale of the grain would defeat the right of a subsequent purchaser of the land was because such sale was an implied severence of the grain. The weight of authority would also seem to determine that trees, sold as timber, and to be presently cut and delivered, or trees and j^lants growing in a nursery, to be presently transplanted, are also personal property : Anon , Ld. Kaym. 182; Smith w. Surnam, .sw^^ra; Erskine v. Plummer, 7 Me. 447 ; Miller v. Baker, 1 Mete. 27 ; Whitmarsh v. Walker, lb. 313 ; Claflin v. Carpenter, 4 lb. 580 ; Yale v. Seely, 15 Vt. 221. But when the property in the trees is not to pass until they be severed, or if time is to be allowed for them to reach ma- turity, it would seem that the sale is one of an interest in land, and not of a chattel : Putney v. Day, 6 N. H. 430 ; Green v. Armstrong, 1 Den. 550 ; Pierre- pont V. Barnard, 5 Barb. 364. Manure has been held to be part of the realty, whether heaped in a barnyard or spread upon the ground : Wetherbee v. Ellison, 19 Vt. 379. It may be here remarked, that even if the contracts referred to 'do not fall within the fourth section of the statute, because not relating to an interest in land, they must necessarily fall within the seventeenth section, because they relate to chattels. Moreover, if the contract is an entire one, as for the sale of the realty with the crops growing upon it, a court has no right to appor- tion it ; and if the sale of the realty be avoided by this statute, that of the personalty will also fall : Thayer v. Rock, 13 Wend. 53; Loomis v. Newhall, 15 Pick. 166.— R. A verbal contract to pay for improvements on land, held adversely to the promisor, in considcation that the tenant would attorn to him and pay him rent for his unexpired term, is not within the statute : Cassill v. Collins, 23 Ala. 676. A sale of growing timber, with liberty to enter, cut, and carry it away, without limitation of time, is an interest in land within the Statute of Frauds: Buck v. Pickwell, 27 Vt. 157; Yeakle v. Jacob, 33 Pa. St. 376; M'Gregor v. Brown, 10 N. Y. 114; Harrell v. Miller, 35 Miss. 700; Hutchins V. King, 1 Wall. 53. A sale of standing trees, in contemplation of their im- mediate separation from the soil, is a constructive severance of them. It is distinguished from the case of a contract conferring an exclusive right to the land for a time, for the purpose of making a profit out of the growth upon it : Byassee v. Reese, 4 Mete. (Ky.) 372. Crops grown and ready to be cut are chattels, and will pass by parol : Bryant v. Crosby, 40 Me. 9 ; even before their maturity : Bricker v. Hughes, 4 Ind. 146 ; Sherry v. Picker, 10 lb. 375 ; Bull V. Giiswold, 19 111. 631 ; Matlock v. Fry, 15 Ind. 483 ; Frank v. Harrington, 36 Barb. 415; Marshall v. Ferguson, 23 Cal. 65. A. agreed to sell and deliver to B. aU the broom corn that should be raised in 1853, on twenty -five acres of 140 LECT. III.] COKTKACTS FOR THE SALE OF LANDS. 125 easement of tlie right to enter the land for the purpose of harvesting and carrying them away is all that was intended to be granted '•"'to the buyer. But with respect to grass, which, as being the natural pro- •- - J duce of the land, is said to be not distinguishable from the land itself in legal contemplation until actual severance, the decision of Crosby v. Wadsworth appears to be still adhered to, viz., that the purchaser of a crop of mowing grass, unrij^e, and which he is to cut, takes an exclusive interest in the land before severance ; and therefore the sale is a sale of an interest in land within the statute {x). So it has been held, that the sale of growing underwood to be cut by the purchaser confers an interest in land within the statute {y). The same has been held as to an agreement for the sale of grow- ing fruit [z) . But where the owner of trees growing on his land (but after two had been cut down) agrees with another while the rest are standing to sell him the tim- ber, to be cut by the vendor, at so much per foot, this is a contract merely for the sale of goods (a). The timber was to be made a chattel for the seller (b). And, per Liitledale^ J., even if the contract were for the sale of the trees, with a specific liberty to the vendee to enter the land to cut them, this would not give him an in- (2) Carrington v. Roots, 2 M. & W. 248, (2/) Scorell V. Boxall, 1 Y. & J. 396; Teal v. Auty, 2 B. & B. (6E. C. L.R.) 99. (2) Rodwell V. Phillips, 9 M. & W. 501. (a) Smith v. Surman, 9 B. & C. (17 E. C. L. R.) 561. (6) Lord Falmouth v. Thomas, per Bailey, B., 1 C. & M. (41 E. C. L. R.) 105. Uiid— held within the statute : Bowman v. Conn, 8 Ind. 58. Coals and the right to dig them is an interest in land : Lear v. Chouteau, 23 111. 39. As to grow- ing timber see Hutchings v. King, 1 Wall. 53 ; Byassee v. Reese, 4 Mete. (Ky.) 372 ; Kingsley v. Holbrook, 45 N. H. 313 ; Huff v. McCauley, 53 Pa. St. 206. As to growing crops see Marshall v. Ferguson, 23 Cal. 65; Webster v. Zielly, 52 Barb. 482.— s. 141 126 THE STATUTE OF FRAUDS. [lECT. III. terest in the land within the '^meanin, but in the very recent case of Cherry v. Heming, 4 Exch. 631, the facts and the decisions were much the same as in Donellan v. Reed, and the Court, referring to the remarks of Mr. Smith, were of opinion that they were not sufficient to induce them to doubt the authority of that case. On this side of the Atlantic the construc- tion thus adopted has been followed in some cases : Holbrook v. Armstrong, 10 Me. 31 ; Rake v. Pope, 7 Ala. 161 ; Johnson v. Watson, 1 Ga. 348 ; but re- jected in others : Broadwell v. Getman, 2 Den. 87 ; Cabot r. Haskins, 3 Pick. 83; Lockwood v. Barnes, 3 Hill, 128. The practical difference between these classes of cases may be thus explained. " It often happens," as was said in Donellan v. Reed, " in cases of i^arol sale of goods, that they are not to be paid for in full till after the expiration of a longer time than a year, and surely the law would not sanction a defence on that ground, where the buyer h.id had the full benefit of the goods on his part." Under such circumstances, however, 152 LECT. III.] YEAE. 138 for this enactment applies only to contracts not to he performed on either side within the year. Therefore, it cannot be doubted that although by the operation of the statute, the seller might fail to recover the price of the goods by the terms of the contract, he could not fail to recover upon a quantam valebant : Poulter v. Killingbeck, 1 B. & P. 397 ; Earl of Falmouth v. Thomas, 1 Cr. & M. 109 ; Teal v. Auty, 2 B. & B. (6 E. C. L. K.) 99 ; Philbrook v. Belknap, 6 Vt. 383 ; and the difference would therefore be, that under Donellan v. Reed, the plaintiff could recover merely upon proving the contract and its performance on his part, while under the opposite authorities, the benefit to the defendant must be shown. The point decided in Souch v. Strawbridge, supra, viz., that the statute only applies where, from the terms of the agreement, the contract must necessarily extend beyond one year, was, long before that decision, held the same way in Moore v. I'ox, 10 Johns. 2-44, where a promise was made by one of a congregation to pay the plaintiff, its pastor, two dollars a year for his services as such, and he sued for services rendered many years after, and it was held that the plain- tiff having received his salary semi-annnally, it must be presumed that such was the understanding at the time of the agreement, and hence the contract was not within the statute, because the plaintiff could have withdrawn at any time within the year, and yet recovered his services for the first six months. So in Artcher v. Zeh, 5 Hill. 200; and it seems also, that whenever the time oi the duration of the contract is to depend on the contingency of life, the con- tract need not be written: Wells v. Horton, 4 Bing. (13 E. C. L. R.) 40 Thompson v. Gordon, 3 Strob. 197 ; Bull v. McCrea, 8 B. Mon. 422 ; as, for instance, a promise not to carry on the business of a livery -stable keeper, be- cause the death of the contracting party might happen within the year : Lyo>» V. King, 11 Mete. 411 ; a promise to be performed on the death of the prom- isor: Wells I'. Horton, 4 Bing. (13 E. C. L. E.) 40 ; Thompson v. Gordon, 3 Strob. 197, &c. ; because the death of the promising party might occur instan- taneously. The student will find these and many other cases classified in the American note to Peter v. Compton, 1 Smith's L. C. 614, Sth Am. ed. — R. If by its terms or by reasonable construction, a contract not in writing cac be fully performed within a year, although it can be done only by the occur- rence of some improbable event, as the death of a person referred to, it is not within the statute. So if it can be performed on one side within a year : Blanding v. Sargent, 33 N. H. 239 ; Wiggins v. Keizer, 6 Ind. 252 ; Soggins v. Heard, 31 Miss. 426 ; Suggett v. Cason, 26 Mo. 221 ; Burney v. Ball, 24 Ga. 505; Sherman v. Champlain Co., 31 Vt. 162; Wilson v. Ray, 13 Ind. 1; Dresser v. Dresser, 35 Barb. 573; HjU v. Jamieson, 16 Ind. 125. Payment or performance of the consideration of an agreement, not to be performed within the year, never takes it out of the statute : Pierce v. Paine, 28 Vt. 34 ; see Boutwell i;. O'Keefe, 32 Barb. 434. An agreement to employ a person for the term of one year, to commence infuturo, is void: Amburger v. Marvin, 4 E. D. Sra. 393 ; Kelly i'. Terrel, 26 Ga. 551. An agreement by an infant to work seven years for his board is not within the statute : Wilhelm v. Hardman, 13 Md. 140. A parol agreement not to carry on a trade in the village of B., is not within the statute, as it may be wholly performed within one year by the death 153 138 THE STATUTE OF FRAUDS. [lECT. Ill, in a case where the defendant, in a letter signed by liim, proposed to the plaintiff that she should assign to the defendant, in trust for an institution managed by him, a patent which she had obtained for making toys, such patent to be used by the institution, the plaintiff' to have 5 per cent, on the profits, and the defendant to provide for the next j)ayment in respect of the patent ; and if the payments made should not equal a certain sum in the first and subsequent years, the plaintiff" to have tlie right to reclaim the patent, and this proposal was ac- cepted by the plaintiff" by word of mouth ; it was held that the contract did not require to be in writing under r-. ^^-. the 4th section of the Statute of Frauds *inas- r 1391 •- -• much as all that w^as to be done by the plaintiff" as tlie consideration of defendant's promise was capable of being done within a year, and it did not appear that any part of it was to be postponed until after a Where a servant has entered on his duties under a verbal contract for yearly service, coming within the 4tli section, and is dismissed within the year for no fault of his own, he can, it seems, recover the value of the services rendered by him up to the time of his dis- missal (/). I have now gone through the five cases to which the 4th section of the Statute of Frauds applies, and in which it requires a written memorandum of the con- tract. There are one or two cases of very considerable importance in practice on which I shall briefly observe {k) Smith V. Neale, 2G L. J. (C. P.) 143 ; 2 C. B. (N. S.) (89 E. C. L. E.) 67. (0 See Snelling v. Lord Huntingfield, 1 Cr. M. & E. 20 ; and the remarks of Thesiger, L. J., in Britain v. Eossiter, 48 L. J. (Q. B.) 362, 367 ; 11 Q. B. D. 123, 133. of either party: Eichardson v. Pierce, 7 E. I. 330 ; Worthy v. Jones, 11 Gray, 168.— s. 154 LECT. III.] YEAR. 139 in the next Lecture, in which a writing is required by the express enactment of the legislature. Having men- tioned them, I shall say something of the consideration upon which a simple contract may be grounded, and which is, as you are aware, an essential part of every such contract; and then, having finished the remarks I had to make on Simple Contracts exclusively, shall resume the "^consideration of the general law of r^--, . r.-| contracts, and shall speak of the competency or incompetency of the contracting parties, and of remedies by which, in case of breach of contract, their perform- ance is to be enforced. 155 [*141] LECTURE IV. SALE OF GOODS, ETC., UNDER THE 17tH SECTION OF THE STATUTE OF FRAUDS. OTHER CONTRACTS WHERE WRITING IS OR HAS BEEN NECESSARY. — POINTS AP- PLYING TO ALL SIMPLE CONTRACTS. ASSENT. OFFER AND ACCEPTANCE.— CONSIDERATION OF CON- TRACTS BY DEED AND OF SIMPLE CONTRACTS. I CONCLUDED in tlie last Lecture the consideration of the five cases in which the 4th section of the Statute of Frauds renders it necessary that a contract should be reduced into writing. There are, as I then said, a few other cases, which, being of constant occurrence, it will be right to specify before proceeding to the next branch of the subject. The first of these cases is that of a sale for the price of £10 or upwards, regarding which the 17th section of the Statute of Frauds lias provided as fol- lows : — "No contract for the sale of any goods, wares, or merchandises for the price of £10 or upwards shall be good, except the buyer shall accept part of the goods so r-^1491 ^ol^^» ^^^ actually receive the*same; or give something in earnest to bind the bargain, or in part payment; or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." As to the subject-matter of this section there is little difficulty in applying it. As to the case of growing crops, and trees, and roots, &c., in the ground, the law 156 LECT. IV.] SALE OF GOODS. 142 has been already considered in treating on the 4th section^ It has been decided that shares in railway and other joint stock companies are not an interest in land "vvithin the 4th section of tlie Statute of Frauds; nor are they goods, wares, or merchandises, within the 17tli (a). A sale, also, of tenant's fixtures is not a sale of goods within this section, and as we have already seen {ante, p. *127), is not within the 4th {b). The first great difference which you will observe be- tween this section and tlie 4th section of the same Act is, that the 4th section renders a writing necessary in all cases which fall within its terms ; whereas the 17th mentions three circumstances, any one of which it (hrects shall be as effectual as *a writing, namely, accept- r:{:-|4o-i ance of any part of the goods, payment of part of the price, and, lastly, the giving something by way of earnest to bind the bargain, or in part payment ; any one of which three things will as effectually perfect the sale as a writing would (c). Where none of these has taken place, a writing, however, becomes necessary ;^ and (a) Humble v. Mitchell, 11 A. & E. (39 E. C. L. K.) 205 ; Bradley v. Holds- worth, 3 M. &. W. 422; Bowlby v. Bell, 3 C. B. (54 E. C. L. K.) 284; Knight V. Barber, 16 M.& W. 66 ; Tempest v. Kilner, 3 C. B. (54 E. C. L. R.) 249. See Baxter v. Brown, 7 M. & G. (49 E. C. L. R.) 198, (6) Lee v. Gaskell, 1 Q. B. D. 700; 45 L. J. (Q. B. etc.) 540. (c) As to what amounts to acceptance and receipt within the meaning of this section, generally, see Blackburn on Sales, 22, 23 ; Benjamin on Sales, Book I, part ii. chap. iv. As to what is a sufficient acceptance and receipt of bulky things such as growing timber, see Marshall v. Green, 1 C. P. D. 35 ; 45 L. J. (Q. B. etc.) 153. ' Delivery to and acceptance by the agent of the vendee is sufficient : Ont- water v. Dodge, 6 Wend. 397. Aliter of an acceptance by a mere shopboy, out of the scope of his duty : Smith v. Mason, Anthon, 225. Goods are re- ceived and accepted by the purchaser within the Statute of Frauds when they are transported by the seller to the place of delivery appointed by the agent who contracted for them, and are there delivered to another agent of the purchaser, and are by him shipped to a port where the purchaser had given him general directions to ship goods of the same kind : Snow v. War- ner, 10 Mete. 132. A delivery of goods by the vendor, on a parol sale, whether actual or constructive, and an acceptance by the vendee, is a per* 157 143 SALE OF GOODS [lECT. IV. if there l)e none, the bargain cannot be enforced by action. It was formerly indeed thought that the opera- forraance of the contract, and the vendor cannot afterwards retract and avoid the sale as being within the Statute of Frauds : Johnson v. Watson, 1 Ga. 348. To constitute a delivery and acceptance of goods sold, within the mean- ing of the statute, something more than mere words is necessary. There must be some act of the parties, amounting to a transfer of the possession, and an acceptance thereof by the buyer, and the case of cumbrous articles is not an exception to this rule : Shindler v. Houston, 1 N. Y. 261. "Where, by the terms of an agreement for the sale and purchase of goods, cash is to be j)aid on the delivery of the goods, jaayment of the money is sufficient evidence that the goods have been delivered in pursuance of the contract, for the pur- pose of taking the case out of the Statute of Frauds: Aguirre v. Allen, 10 Barb. 74. See also upon the subject of acceptance of part, Vincent v, Ger- mond, 11 Johns. 283; Seymour v. Davis, 2 Sand. 239. A contract to make machines for a specified price and find the materials, is not witliin the statute : Spencer v. Cone, 1 Mete. 283. If the articles exist at the time in the condition in which they are to be delivered, it should be re- garded as a contract of sale ; but if labour and skill are to be applied to exist- ing materials, it is then a contract for the manufacture of such article : Hight I. Kipley, 19 Me, 137 ; Cummings v. Dennett, 26 Me. 397 ; Cason v. Cheely, 6 Ga. 554 ; Seymour v. Davis, 2 Sand. 239 ; Allen v. Jarvis, 20 Conn. 38 ; Bronson v. Wiman, 10 Barb. 406 ; Hardell v. McClure, 1 "Wis. 271. A de- livery takes the case out of the statute : Houghtaling v. Ball, 19 Mo. 84. It may be subsequent to the agreement : Marsh r. Hyde, 3 Gray, 331 ; Sale v. Darrah, 2 Hilt. 184. A parol sale, unaccompanied by an act of the vendee indicating acceptance of the goods is void : Alderton r. Buchoz, 3 Mich. 322 ; Shepherd v. Pressey, 32 N. H. 49; Gilman v. Hill, 36 lb. 311. Partial de- livery by vendor is a part performance which takes the case out of the statute : Dennison v. Carnahan, 1 E. D. Sm. 144 ; Swigart v. McGee, 19 Ark. 473. A parol contract for goods on shipboard, without delivery, is void: Stevens v. Stewart, 3 Cal. 140. Growing crops are not goods and chattels within the meaning of this provision : Bours v. "VV^ebster, 6 lb. 660. A provision for the transportation of cattle to the place of delivery, although effected according to the verbal agreement, does not take it out of the statute : Barbour r. Disher 11 Rich. 347. When goods are purchased under a parol contract, without the payment of any earnest money, the delivery of them to a carrier, selected and named by the purchaser, and their acceptance by the carrier, constitute a sufficient acceptance: Spencer v. Hale, 30 Vt. 314. The mere taking a sample without an express understanding that such taking is to be a delivery is not enough : Carver v. Lane, 4 E. D. Sm. 1C8. There is no acceptance although the goods may have been delivered to a carrier, so long as the buyer has the right to object to the quantity or quality: Lloyd v. Wright, 25 Ga. 215. A verbal agreement to purchase goods and credit the price towards payment of an old debt is valid the moment the act of giving the credit is performed by the buyer making the entry in his books : Brabin v. Hyde, 30 Barb. 265. A promise to pay to the vendor's creditor, accepted by him, who thereupon dis- 158' LECT. IV.] UNDER THE STATUTE OF FKATJDS. 143 tion of the 17tli section was to make the bargain void altoo;ether in the absence of one of the three essential circLimstances above-mentioned. Thus in Laythoarp v. Bryant {d), Bosanquet, J., says: "the 4th section does not avoid contracts not signed in the manner described ; it only precludes the right of action. This 17th section is stronger, and avoids contracts not made in the manner prescribed." This proposition, however, hardly repre- sents the present state of the law, and since the case of Bailey v. Sweeting (e), it is not safe to say that a parol sale, unaided by any of the three formalities mentioned in the 17th section as equivalent to writing, is totally and ^entirely void. In that case, a letter from r*-|44-] the purchaser to the seller of goods, written after the contract was made, and the goods had been sent, was held a sufficient memorandum to satisfy the 17th section; and Williams, ^., in giving judgment, said : " It cannot be controverted that, in point of fact, there was a good and lawful contract for the sale of the goods, the price of which is sought to be recovered. It is clear, however, that as the price is greater than £10, the contract, though good, would not be actionable, unless the requisites of the Statute of Frauds had been complied with." (His Lordship here read the 17th sect.) " The effect of that section is, that though there is a valid verbal contract, it is not actionable unless something of several things has happened, one of which is, the existence of a note or memorandum in writing {d) 2 Bing. N. C. (29 E. C. L. R.) 735. (e) 9 C. B. N. S. (99 E. C. L. R ) 843, 30 L. J. (C. P.) 150, 154. charges the vendor, is a sufRcient part payment : Cotterill v. Stevens, 10 "Wis. 422. A delivery and acceptance of goods, sufficient to satisfy the Statute of Frauds, can only be shown by some clear and unequivocal act: Denny v. "Williams, 5 Allen, 1. A part payment will not take a contract out of the f tatute unless made at the time of the contract : Bissell v. Balcom, 40 Barb. 9S.-S. 159 144 SALE OF GOODS [lECT. IV. of tlie bargain signed by the party to be charged. As soon as that occurs, the contract, though not pieviously actionable, becomes actionable." In the recent case also of Maddison v. Alderson (/), Lord Blackburn says : " I think it is now finally settled that the true construction of the Statute of Frauds, both the 4th and the 17th sections, is not to render the contracts within them void, still less illegal, but is to render the kind of evi- dence required indispensable when it is sought to enforce the contract." PM"! *^ doubt was entertained at one period whether the 17th section included the case of a contract for something not in existence in a chattel state at the time of making the bargain, but which was to become a chattel before the time agreed upon for its delivery {g). Where, for instance, growing timber was bargained for, to be delivered cut into planks, or a ship or a carriage not yet built.^ However, any doubt that (/) 8 App. Cas. 467, 488 ; 52 L. J. (Q. B.) 737, 749. (g) Lee v. Griffin, 30 L. J. (Q. B.) 252. ^ It was formerly held that executory contracts were not within the statute, but that it was confined to cases where the buyer was immediately answerable : Towers v. Osborne, Str. 506; Clayton v. Andrews, 4 Burr. 2101 ; but this dis- tinction was doubted by Lord Thurlow, in 3 Bro. C. C. 355, and was subse- quently overruled : Rondeau v. Wyatt, 2 H. Bl. 63 ; Cooper v. Elston, 7 T. R. 14. The statute of 9 Geo. IV. has not been generally re-enacted in this country, and hence the English cases upon the construction of this part of the Statute of Frauds before its alteration have still a practical application here. The first case was Towers v. Osborne, already cited, where the defendant bespoke a chariot, and refused to take it when made, and the Court held that a writing was not necessary, for the statute " related only to contracts for the actual sale of goods, when the buyer is immediately answerable, without time given him by special agreement." Then came Clayton v. Andrews, supra, where the plaintiff agreed to deliver a load and a half of wheat within a month, at so much a load, to be paid on delivery, the wheat being then unthrashed, and the Court, on the authority of Towers v. Osborne, held the case not to be within the statute, rather, however, on the ground of the contract being executory, than because the wheat did not then exist in the form in which it was to be de- livered. Then these two cases were, as has been said, overruled as to the dis- 160 LECT. IV.] UNDER THE STATUTE OF FRAUDS. 145 formerly existed on this subject is now put an end to; for, by statute 9 Geo. 4, c. 14, s. 7, it is enacted that the tinctlon between executed and executory contracts. Then in Garbutt v. Watson, 5 B. & Aid. (7 E. C. L. R.) 613, the contract was for the delivery of flour, which was then unground wheat, and the Court said that " in Towers t'. Osborne, the chariot which was ordered to be made would never, but for that order, have had any existence. But here the plaintiffs were proceeding to grind the flour for the purposes of general sale, and sold this quantity to the de- fendant as part of their general stock. The distinction is indeed somewhat nice, but the case of Towers v. Osborne is an extreme case, and ought not to be carried further," and it was said that the question was whether the contract was for the sale of goods, or for work and labour and material found ; and the case of Clayton v. Andrews, which was scarcely distinguishable from the present one on this point, was said to have been also incorrectly decided upon the point of the condition of the wheat. Subsequent cases have held that contracts to sell oil not then expressed from seeds: Wilks c. Atkinson, 6 Taunt. (1 E. C. L. R.) 11 ; to supply a house with pipes to be laid in a specified manner: West Middlesex Co. v. Suwerkrop, 4 C. & P. 87 ; to make a copper-plate press to be ready in three months: Pinner v. Arnold, 2 Cr. M. & R. 613, overruling Buxton V. Beddall, 3 East, 304, and the like', are within the statute, and must, therefore, be written ; but a contract to deliver a quantity of oak pins, which were not then made, but were to be cut out of slabs, being merely an agree- ment for labour to be done upon materials found, was held not to be a " contract for the sale of goods," for the thing to be delivered did not exist in solido, and would be incapable of delivery : Groves v. Buck, 3 M. & S. 178. In this country, the distinction between the contract being executed and executory has also been disregarded : Bennett v. Hull, 10 Johns. 364 ; Crookshank v. Burrell, 18 lb. 58; Jackson r. Covert, 5 Wend. 141 ; Cason v. Cheely, 6 Ga. 554. As respects the condition of the subject of the contract, it has been truly said that " the difficulty arises not so much from any uncertainty in the rule, as from the infinitely various shades of different contracts. If it is a contract to sell and deliver goods, whether they are then completed or not, it is within the statute. But if it is a contract to make and deliver an article or a quantity of goods, it is not within the statute :" per Shaw, C. J., in Gardner v. Joy, 9 Mete. 179 ; and the same judge subsequently thus laid down the rule : " when a person stip- ulates for the future sale of articles which he is habitually making, and which at the time are not made or finished, it is essentially a contract of sale, and not a contract for labour ; otherwise, when the article is made pursuant to an agree- ment:" Lamb i'. Crofts, 12 lb. 356 ; Cason v. Cheely, 6 Ga. 554. Thus, agree- ments to make the woodwork of a wagon, to be paid for in lambs at one dollar a head : Crookshank v. Burrell, 18 Johns. 58 ; to completely line with cloth, selected by defendant, a buggy of which the body existed in an unfinished state : Mixer v. Howarth, 21 Pick. 204 ; and to make ten stave machines, and find the materials : Spencer v. Cxine, 1 Mete. 283 ; to make twelve surgical ad- justers, and find the materials : Allen v. Jarvis, 20 Conn. 38 ; to furnish, as Boon as practicable, one thousand or twelve hundred malleable hoe shanks, «greeably to patterns furnished : Hight v, Ripley, 19 Me. 137 ; were respect- 11 161 145 SALE OF GOODS [lECT. IV. 17th section of the Statute of Frauds " shall extend to all contracts for the sale of goods of the value of £10 sterlino- and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not, at the time of such contract, be actually made, pru ively held not to be contracts within the statute : see Cummings v. Dennett, 26 lb. 397 ; but a contract for the purchase of one hundred boxes of candles, the time of delivering not being mentioned, but the defendant stating that they w<;re not yet manufactured, but he would manufacture and deliver them in the course of the summer, was in a late case held to be a " sale of goods " within the statute: Gardner v. Joy, 9 Mete. 179; so of cider not yet manufactured: Seymour v. Davis, 2 Sandf. 241 ; wheat not yet thrashed : Downs v. Eoss, 23 Wend. 274 ; and cotton to be packed in bales: Cason v. Cheely, 6 Ga. 554. In Maryland, in 1821, the case of Eichelberger v. M'Cauley, 5 Harr. & J. 214, was for the delivery of unthrashed wheat, and on the authority of Clayton v. Andrews, the contract was held not to be within the statute, but the late au- thorities seem generally to agree in condemning the decision of tliat case, and say, moreover, of Towers v. Osborne, that it was rightly decided, but upon a wrong reason. It has been held in England that contracts for the sale of shares in a joint- stock, banking company, or in a railway company, or of foreign stock, need not be in writing, as not coming within the term " goods, wares, or merchan- dise:" Humble V. Mitchell, 11 A. & E. (39 E. C. L. R.) 205; Bowbly v. Bell, 3 C. B. (54 E. C. L. E.) 284 ; Tempest t). Kilner, lb. 249 ; Duncuft f. Albrecht, 12 Sim. 189; Heseltine v. Siggers, 1 Exch. 867 ; but in Colvin v. Williams, 3 Harr. & J. 38, and Tisdale v. Harris, 20 Pick. 9, the statute was differently con- strued (in Gadsden v. Lance, 1 McMul. Eq. 87, this point wns left unde- cided), and in Baldwin v. Williams, 3 Mete. 365, the authority of Tisdale v. Harris was confirmed, and the statute held to apply also to sales of promissory notes. — R. An agreement to procure and deliver at a certain time and place one-half of a frame for a vessel to be liewn and fashioned according to certain mould, is not within the statute: Abbott v. Gilchrist, 38 Me. 260. A contract for delivery at a future day of goods yet to be manufactured is not a contract for sale, but for work and labour only : Donovan i'. Willson, 26 Barb. 138; Parker r. Schenck, 28 lb. 38 ; see Woodford v. Patterson, 32 lb. 630 ; Mead v. Ca.se, 33 lb. 202 ; Phipps V. McFarlane, 3 Minn. 10!*; Atwater v. Hough, 29 Conn. 508; a con- tract for the manufacture of an article out of material to be supplied by the manufacturer is not within the statute: Crockett v. Scribner, 64 Me. 447 ; a contract for the sale of corn if by its terms the corn is to be gathered and shocked before delivery, is not within the statute : Eentch v. Long, 27 Md. 188 ; Webster v. Zielly, 52 Barb. 482 ; and see Ross v. Welch, 1 1 Gray, 235 ; Bissell V. Palcom, 40 Barb. 98; Wylie v. Kelly, 41 lb. 594; Malone v. Plato, 22 Cal. 103 ; Brabin v. Hyde, 32 N. Y. 519 ; Lay v. Neville, 25 Cal. 545 ; HiU V. McDonald, 17 Wis. 97 ; Dow v. Worthen, 37 Vt. 108.— s. 162 LECT. IV.] UNDER THE STATUTE OF FRAUDS. 145 cured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery." These two statutes, according to a well-known rule, are to be read as incorporated together (A), one effect of which is that the 17th section of the Statute of Frauds must be read as applying to all goods, &c., of the value of £10, instead of the price to that amount (i) . *Where a writing is relied on to satisfy the p^^.^-, provisions of the 17th section, the rules which ■- -• govern the case are very analogous to those which I have already stated with regard to the 4th. Tlie signa- ture must be by the party to be cha7'ged, or his agent. And one party cannot be the other's agent for this pur- pose {k). Nor where tlie agent of the party complain- ing of a breach of the contract has signed with his ow^n name a memorandum of the bargain at the request of the party to be charged, is he to be considered as the agent of the latter in the absence of other circumstances showing authority to the signer to act as the agent of the party to be charged {I). But under neither the 4th nor the 17th section is there any necessity for the agent's being appointed by writing. The question who is an agent lawfully authorised within the meaning of the Statute of Frauds will be considered more fully here- after when we come to the law of agency {m). (h) Scott V. Eastern Counties Railway Co., 12 M. & W. 33; Harman v. Reeve, 25 L. J. (C. P.) 2.57 ; 18 C. B. (86 E. C. L. R.) 587. (t) Harman v. Reeve, supra. (k) Wright V. Dannali, 2 Camp. 203 ; Farebrotlier v. Simmons, 5 B. & Aid. (7 E. C. L. R.) 333 ; Sharman v. Brandt, L. R. 6 Q. B. 720 ; 40 L. J. (Q. B.) 312. (/) Graham 1'. Musson, 5 Bing. N. C. (35 E. C. L. R.) 603 ; Graham v. Fret- well, 3 M. & G. (42 E. C. L. R.) 368. See Bird v. Boulter, 4 B. & Ad. (24 E. C. L. R.) 443, post; and Mews v. Carr, 26 L. J. (Ex.) 39; 1 H. & N. 484; Durrell v. Evans, 30 L. .J. (Ex.) 254. (/») See post, Lect. ix., " Agent under Statute of Frauds." 163 146 SALE OF GOODS [lECT. IV. Under the 17th section, too, as well as under the 4th, several documents may be read together as pj.^ ._-, *niaking up the contract, provided they be •- '-^ sufficiently connected in sense among them- selves without the aid of parol evidence (n). And in such cases, as different phrases are commonly used in the different documents, it is peculiarly important to ascertain that both parties mean the same thing ; as where there was a treaty for the sale of a horse, and one wrote that he would buy him if warranted sound and quiet in harness, and the other wrote that he would warrant him sound and quiet in double-harness, it w'as considered by the Court that the parties never had con- tracted in writing ad idem, and, consequently, that the statute had not been complied with (o). It need hardly be added that although it appears that there are several memoranda of the contract, it will not be presumed that they differ ; but on the contrary, if any one of them contain enough to show the contract, it is a sufficient memorandum within the statute. There- fore, in an action by the vendor against the purchaser of goods, a note sigjned by a broker acting for both parties, expressing that the broker had "sold" specified goods at a specified rate, and containing all the terms of r*14«1 the *contract (which, from containing the word "sold," is called in commerce the sold note, and should, in fact, correspond with another also signed by the broker and called the bought note), was sufficient to satisfy the statute. " If in ordinary practice," said Willes, J., " the bought and sold notes were different (n) Smith v. Surman, 9 B. & C. (17 E. C. L. R.) 561 : Archer v. Baynes, 5 Ex. 625 ; Philliniore v. Barry, 1 Camp. 513 ; Jackson v. Lowe, 1 Bing. (8 E. C. L. R.) 9 ; Pierce v. Corf, L. R. 9 Q. B. 210. (o\ Jordan v. Norton, 4 M. & "W. 155 ; Hutchison v. Bowker, 5 M. & "VV. 535. See Sievewright v. Archibald, 17 Q. B. (79 E. C. L. R.) 103; 20 L. J. (Q. B.) 529. 164 LECT. IV.] UNDER THE STATUTE OF FEAUDS. 148 things, there might be some ground for the defendant's argument, but it is well known that in ordinary prac- tice they are identical — the one being a copy of the other ; and, therefore, it would be a violent presumption to assume in favour of the defendant that the bought note Avas a different one from the sold note. The sold note is to be presumed, until the contrary is shown, to represent the contract between the parties" {p). And where a broker who has authority to act for both parties enters in his broker's book both the bought and sold note, and signs them both, this is a sufficient memo- randum of the bargain to satisfy this section [q). It was said by Lord Ellenborotigh in Egerton v. Mat- thews (r), that the word bargain, used in this section, does not render so strict a statement of the transaction necessary, as the word agreement, used in the 4th, does of matters within that section. It has, however, been decided that the names of both parties must appear in the memorandum, though the signature of the party to be bound alone is ^requisite; for, as the Court observed, there cannot be a bargain without ^ J two parties, and therefore a memorandum naming one only is not a memorandum of a bargain (s). But it seems to be quite enough if the parties are sufficiently described {t). And the price ought to be stated if one was agreed on, for that is part of the bargain {u). A (p) Parton v. Crofts, 33 L. J. (C. P.) 189. {q) Thompson v. Gardiner, 1 C. P. D. 777 ; and see antz, pp. *93, *94. (r) 6 East, 307. (s) Champion v. Plummer, 1 B. & P. (N. R.) 252 ; Williams v. Lake, 2 E. & E. (105 E. C. L. R.) 349 ; 29 L. J. (Q. B.) 1 ; Vandenbergh v. Spooner, L. R. 1 Ex. 316 ; 35 L. J. (Ex ) 201 ; see Newell v. Radford, L. R. 3 C. P. 52 ; 37 L. J. (C. P.) 1. [t] See ante, pp. *82-*85, and the cases there cited with reference to the 4th section. There seems no distinction in this respect, in point of principle, be- tween the 17th and 4th sections. (w) Elmore v. Kingscote, 5 B. & C. (11 E. C. L. R.) 583 ; Hoadlej v. M'Laine, 10 Bing. (25 E. C. L. R.) 482. 165 149 SALE OF GOODS [lECT. IV. memorandum is not sufficient that does not mention price, if an agreement has been come to on that point. Thus, when the seller showed the buyer a list of prices, and the buyer only agreed to purchase on condition of a deduction of 25 per cent, from such prices for cash payment, and then wrote an order for certain of the articles, not specifying anything as to price; this was held not enough to satisfy the statute, and a subsequent letter from him declining to take the goods, was deemed also insufficient to take the case out of the statute (x). If no price be named, the parties must be understood to P^l rA-| have agreed for what the thing is ^reasonably worth (y). Thus, an order for goods "on moderate terms" is a sufficient memorandum within the 17th section of the Statute of Frauds (z). A contract for the sale of goods of the value of £10 is within the 17th section, although it includes other matters for which a writing is not necessary {a). And if the memo- randum contains all that was to be done by the party sought to be charged, it has been held sufficient to satisfy the 17th section, though not to make a valid agreement in cases within the 4tli section (b). But it is important to be borne in mind that in construing these memoranda the surrounding circumstances may be con- sidered, which often make that quite plain which would be obscure without them (c). It is now decided, that a memorandum is sufficient which contains all the terms of the bargain, and ac- knowledges it to have been made, but at the same time (x) Goodman v. Griffiths, 26 L. J. (Ex.) 145 ; 1 H. & N. 574. iy) Valpy v. Gibson, 4 C. B. (56 E. C. L. K.) 837. (z) Ashcroft V. Morrin, 4 M. & Gr. (43 E. C. L. K.) 450. (a) Harman v. Eeeves, 25 L. J. (C. P.) 257 ; 18 C. B. (86 E. C. L. E.) 587; Watts V. Friend, 10 B. & C. (21 E. C. L. K.) 446. (b) Sari V. Bourdillon, 26 L. J. (C. P.) 78 ; 1 C. B. (N. S.) (87 E. C. L. E.) 188 ; Egerton v. Matthews, 6 East, 307. ic) Newell v. Eadtord, L. E. 3 C. P. 52; 37 L. J. (C. P.) 1. 166 LECT. IV.] UNDER THE STATUTE OF FRAUDS. 150 repudiates the contract. Thus, where the purchaser of goods wrote to the seller, referring to all the material terms of the contract, but stating that he had never re- ceived the goods, and declined to do so because they had been damaged by the carrier before they reached him ; the Court '^considered that the former part of p-..^.-, the letter contained a memorandum of the con- •- -^ tract, which was all that was required by the statute ; and that the existence in the same writing of the refusal to abide by the bargain did not neutralize the acknowl- edgment {d). But although the statute invalidates all contracts for the sale of goods unless in writing, or un- less the buyer accept the goods, or give earnest, or pay in whole or part, and therefore virtually, and in effect forbids their being in any way varied or altered by parol (e) ; yet it does not forbid their being rescinded by parol ; and there is no doubt that they may be so rescinded (/). Another case, formerly of considerable importance, in which the legislature required that a particular con- tract should be in writing, was that of an infant. There are many contracts which, when entered into by an in- fant under the age of twenty-one years, are invalid, as I shall have occasion to explain to you at greater length when I arrive at that part of the subject which relates to *the competency of parties to contracts, but whichj before recent legislation, were capable of ^ ''-' being ratified by the infant when he arrived at his full (d) Bailey v. Sweeting, 9 C. B. (N. S.) (99 E. C. L. R.) 843 ; 30 L. J. (C. P.) 150; Wilkinson v. Evans, L. R. 1 C. P. 407 ; 35 L. J. (C. P.) 224; Buxton v. Rust, L. R. 7 Ex. 1, 279 (Ex. Ch.) ; 41 L. J. Ex. 1, 173. And compare Cooper V. Smith, 15 East, 103. (e) Harvey v. Grabham, 5 A. & E. (31 E. C. L. R.) 61 ; Mar^liall ?•. Lynn, 6 M & W. 109 ; Stead v. Dawber, 10 A. & E. (37 E. C. L. R.) 57 ; Moore v. Campbell, 23 L. J. (Ex.) 310 ; Noble v. Ward, 35 L. J. (Ex.) 81; 3G L. J. (Ex.) 91, in Ex. Ch.; S. C, L. R. 1 Ex. 117 ; lb., 2 Ex. 135. (/) lb. See Goss v. Lord Nugent, 5 B. & Ad. (27 E. C. L. R.) 58. 167 152 CONTEACTS BY INFANTS. — INSURANCE. [lECT. IV. age of twenty-one. This ratification might, at common law, have been by parol ; but, it was enacted by 9 Geo. IV. c. 14, s. 5, that no action should be maintained whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification after full age of any promise nr simple contract made during infancy, unless such promise or ratification were in wriUng, signed by the party to be charged therewith. The law on this subject however has recently been altered by " The Infants Kelief Act, 1874" (37 & 38 Vict. c. 62), s. 2, which is as follows: — "No action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age." And this section applies to and makes void ratifications made after the passing of the Act, of con- tracts made before that time (g). Contracts of insurance must in general be printed or written, whether the contract be a marine, fire, or life insurance {h)} ^Another case is that of a promise to pay a ^ -* debt barred by the Statute of Limitations ; but, as I shall have occasion to speak again of that statute before the conclusion of these Lectures, I shall reserve iff) Kibble, ExpaHe, In re Onslow, L. E. 10 Ch. 373: 44 L. J. (Bank.) 63. {h) 30 & 31 Vict. c. 23, s. 7, Sea. See 14 Geo. 3, c. 78, Fire ; and 14 Geo. 3, e. 48, Life. ' This requirement is of statutory origin. There are similar statutes in Georgia: Simonton r. Ins. Co. 51 Ga. SO; Clarke v. Brand, 62 lb. 28; but they are not general in this country and in their absence parol contracts of insurance will be sustained, unless in conflict with some explicit provision in the charters of the companies. See Eead on the Statute of Frauds, ^ 1125- 27 and cases cited. 168 LECT. IV.] MUTUAL ASSENT. 153 what I have to say regarding the writing by which its operation may be defeated. Now, these are the principal cases in which the law of England requires that particular contracts should be reduced into writing ; not that they are the only ones, for there are many statutes making writing necessary in certain particular transactions, but these ai-e the cases of most frequent occurrence, and therefore fittest to be liere mentioned. Having now, therefore, pointed out to you the practical distinction which exists between the written and verbal contracts, though both of theui alike, if not sealed and de- livered, rank but as simple contracts, it is time to touch on some points which apply to all simple contracts alike. The first point to be remarked will, perhaps, at first sight, be considered as nearly self-evident, but much difiiculty does, in fact, arise from not attending to it ; and, upon a little consideration, it will appear important to be borne in mind : it is this, that the parties to the contract mutually assent to the same thing (i). *" A. contract," says Pothier, " includes a con- currence of intention in two parties, one of '- -' whom promises something to the other, who on his part accepts such promise." Hence, assent or acceptance is indispensable to the validity of every contract ; for, " as I cannot," continues Pothier, "by the mere act of my own mind transfer to another a right in my goods, with- out a concurrent intention on his part to accept them, neither can I by my promise confer a right against my person until the person to whom the promise is made has, by his acceptance of it, concurred in the intention of acquiring such right." Wherever there is not an as- sent, express or implied {h), to the terms of the proposed (i) See Jordan v. Norton, 4 M. & W. 155, ante, p. *147; Foster v. Kowland, 30 L. J. (Ex.) 306; Felthouse v. Bindley, 31 L. J. (C. P.) 204. {k) As to an assent being implied to terms and conditions contained in % 169 154 SIMPLE CONTRACTS. [lECT. IV. contract by both parties, there is no mutuality, and no contract. Take for instance tlie case of Hutchinson v. Bowker (I). There, the defendants wrote to the plain- tiffs offering them a certain quantity of " good " barley upon certain terms, to which the plaintiffs answered, after quoting the defendants' letter, as follows : — " Of which offer we accept, expecting you will give us fine barley and full weight." The defendants, in reply, stated that their letter contained no such expression as fine barley, and declined to ship the same. Evidence '^^ was given at the trial that the terms "good" L -' and " fine " were terms well known in the trade, and the jury found that there was a distinction in the trade between " good " and " fine " barley. It was held, that although it was a question for the jury what was the meaning of those terms in a mercantile sense, yet, that they having found what that meaning was, it was for the Court to determine the meaning of the contract ; and the Court held that there was not a sufficient ac- ceptance of the offer to make a complete contract. So, too, where the declaration stated that J. A. wad indebted to the plaintiff, and that the defendant's agent, by written instrument, promised the plaintiff as follows : — " Mr. A., the defendant, offers to pay a composition of 7^. in the £ on your account against his nephew, J. A., on your giving proper indemnification to both. In the event of your accepting the offer I will thank you to forward me full particulars of your account, in order that the same may be properly examined;" that the plaintiff accepted the offer of the defendant, and forwarded the full particulars of his account, and had always been ready and offered to give a proper in- printed ticket,-froin an acceptance of the ticket without objection, see Watkins V. Ryniill, 10 Q. B. D. 178; 52 L. J. (Q. B.) 121, and the eases there cited. (0 5 M. h W. 535. 170 LECT. IV.] MUTUAL ASSENT. 155 demnification to J. A. and the defendant, yet the de- fendant did not pay the composition : this declaration was held bad upon demurrer, as showing nothing more than an overture. Indeed, the very leaving of the terms of the indemnity open shows it to be incomplete. Clearly the defendant never intended to *pay ^ unless he got such an indemnity as he should L J think proper, not what the plaintiff or a third person should think sufficient (m). Again, though there may be an assent to the terms of the proposed contract by both parties, yet if one j)arty is induced to assent, believing through the fraud- ulent misrepresentation of the other that that other is some one else than he really is, then there is no con- tract because there is no agreement as to who the j^arties are, one man thinking only that he is contracting with another, when he is not really doing so. And if the man thus imposed upon furnishes goods under such a supposed contract, the fraudulent acquirer cannot give a good title to any one who purchases from him, though for valuable consideration and without notice of the fraud, unless the sale be in market overt. This is shown by the recent case of Lindsay v. Cundy. There, one Blenkarn took premises at 37, Wood Street, Lon- don, and wrote to the plaintiffs at Belfast, ordering goods of them. The letters were dated 37, Wood Street, and signed " A. Blenkarn & Co.," in such a way as to look like "A. Blenkiron & Co.," there being an old established firm of Blenkiron & Sons at 123, Wood ''■•Street. One of the plaintiffs knew r:;:i r^-i something of that firm, and the plaintiffs entered ^ (m) Cope V. Albinson, 22 L. J. (Ex ) 37 ; 8 Ex. 185 ; M'lver v. Ricliardson, 1 M. & S. 557 ; Mozley v. Tinkler, 1 C. M. & R. 692; Russell v. Thornton, 29 L. J. Ex. 9; 30 L. J. (Ex.) 69; see the judgment of Kindersley, V. C, in Re Leeds Banking Company, 35 L, J. (Ch.) 75 ; Oriental Island Steam Company V. Briggs, 31 L. J. (Ch.) 241. 171 157 SIMPLE CONTRACTS. [lECT. IV. into a correspondence with Blenkarn, and ultimately supplied the goods ordered, addressing them to " A. Blenkiron & Co., 37, Wood Street." The fraud hav- ing been discovered, Blenkarn was indicted and con- victed for obtaining goods by falsely pretending that he was Blenkiron & Sons. Before the conviction the defendants had purchased some of the goods bond fide of Blenkarn without notice of the fraud, and re-sold them to other persons. The plaintiffs having brought an action for the conversion of the goods ; it was held by the Court of Appeal (?^), reversing the judgment of the Queen's Bench Division, and afterwards by the House of Lords (o), affirming the judgment of the Court of Appeal, that the plaintiffs intended to deal with Blenkiron & Sons, and therefore there was no con- tract with Blenkarn ; that tlie property in the goods never passed from the plaintiffs, and that they were accordingly entitled to recover in the action. But mere error in the absence of fraud, as to the person with whom the contract is made, only annuls the contract if personal r*1 ^S1 considerations enter *into it ; if the person sought to be bound would have been equally willing to make the same contract with any other per- son, it would stand {p)} (n) Lindsay v. Cnndy, 2 Q. B. D. 96, 46 L. J. (Q. B. etc.) 233 ; reversing 1 Q. B. D. 348, 45 L. J. (Q. B. etc.) SSL (o) Cundy v. Lindsay, 3 App. Gas. 459, 47 L. J. (Q. B., etc.) 481 (H. L.). And see Hardraan v. Booth, 1 H. & C. 803 ; 32 L. J. (Ex.) 105 ; Higgons v Burton, 26 L. J. (Ex.) 342. (p) Smith V. Wheatcroft, 9 Ch. Div. 223. ^ Thus a contract for the performance of particular personal services is not assignable without the assent of the parties: Chapin v. Longworth, 31 Ohio St. 421 ; so that when an author agrees with a particular firm to publish a forthcoming work, this contract cannot be assigned by the publishers, without the author's consent, to another firm: Hole v. Bradbury, 12 Ch. Div. 886. "Where the defendants had been in the habit of dealing with a particular per- son, who was in debt to them, and they sent an order for goods intending it to be filled by this party, but it came into the hands of the plaintifl^, the suc- cessor in business of the party with whom they had been in the habit of 172 LECT. IV.] OFFER AXD ACCEPT AlfCE. 158 The assent to a contract must be to the precise terms ottered. Where one party proposes a certain bargain, and the other agrees subject to some modification or condition, there is no mutuality of contract until there has been an assent to it so modified ; otherwise it would not be obligatory on both parties, and would therefore be void {q). There is a clear distinction between a mere proposal and an agreement to sell. As in Cooke V. Oxley, where the defendant offered goods to the plaintiff and gave him till four o'clock in the afternoon, the plaintiff did not within the time express that he acceded to the proposal, and was therefore held not entitled to sue the defendant for non-delivery of the goods. The engagement was all on one side, and the defendant had a right until four o'clock to sell the goods to any other person (r). In like manner r:{:i f^qi *w^here a broker sold on Saturday certain goods "* of the defendant to the plaintiff, subject to the plain- tiff's approval of the quality on Monday, and sent the sold note to the plaintiff on Saturday marked with the (7) Jordan v. Norton, 4 M. & W. 155; Cooke v. Oxley, 3 T. R. 653; Be Leeds Banking Company, Mallorie's case, 36 L. J. (Ch.) 141 ; L. R. 2 Ch. 181 ; lie Universal Banking Corporation, ex parte Gunn, 37 L. J. (Ch.) 40; Re Saloon Steam Packet Co., ex parte Fletcher, lb. 49. But a binding con- tract may be made by letters or other writings, although they may contain a reference to the preparation of a more formal contract thereafter. Bonnewell V. Jenkins, 8 (Jh. Div. 70 ; 47 L. J. (Ch.) 758; Rossiter v. Miller, 3 App. Cas. 1124 ; 48 L. J. (Ch.) 10 (H. L.) ; Lewis v. Brass, 3 Q. B. D. 667. (r) 3T.R. 653. dealing who sent the goods, it was held that the plaintiff could not recover their price : Bramwell, B., said : " When a contract is made, in which the personality of the contracting party is, or may be, of importance, as a con- tract with a man to write a book, or the like, or where there might be a set- off, no other person can interpose and adopt the contract " : Boulton v. Jones, 2 H. & N. 564; Boston Ice Co. v. Potter, 123 Mass. 28 ; Paddock t;. Colby, 18 Vt. 485. On the other hand when the personal character of the party dealt with can have no effect upon the contract, or where a party has notice with whom he is dealing, a mistake of identity, in the absence of fraud, might jus- tify the rescission of the contract, but not its avoidance after he has received the goods : Boston Ice Co. v. Potter, 8upra ; Mudge v. Oliver, 1 Allen, 74. 173 159 SIMPLE CONTEACTS. [lECT. TV. words "quality to be approved on Monday," and the plaintiff not having approved or disapproved on the Monday, the broker, a few days after, sent the sold note to the defendant with those words struck out, and the defendant tlien repudiated the engagement ; it was held that he had no right to do so, for the plaintiff, not having signified his disapproval on Monday, was then bound by it, and the engagement, being mutual, was a perfect contract. This case, it will be observed, differs from Cooke v. Oxley, which was an offer to sell not accepted within the time given. Here was not merely an offer to sell, but the buyer had an option of re- nouncing the purchase on Monday, and not having renounced, the contract had become absolute (s). The case of Routledge v. Grant {t) is also a good example of this principle. Grant offered to purchase Kent- ledge's house, requiring possession on the 25th of July, and a definite answer in six weeks ; Koutledge accepted the offer, with possession on the 1st of August; Grant afterwards, within the six weeks, retracted his offer, and it was held that he had a right to do so. The party who made the offer has a right to say, r*l rO~l '" ^^^ ^^^^ infcedera veni/' and to decline any other bargain than that which he offered. Where an offer is accej)ted in the terms in which it was made, the contract is binding on both parties. At any time before it is accepted the offer may be rescinded, but not afterwards {u). The importance of ascertai nine: accurately that the offer which the one party has made has not been altered by any term or stipulation intro- duced by the other in accepting it, is so great, that another example or two will be useful. Thus, a broker (s) Humphreys v. Carvalho, 16 East, 45. (0 4 Bing. (13 E. C. L. R.) 653. (w) Cooke V. Oxley, 3 T. R. 653. 174 LECT. IV.] OFFER AND ACCEPTANCE. 160 sold to Cowie, of Calcutta, a quantity of indigo, and drew up a sold note addressed to the vendor, who hav- ing objected to a particular word, Cowie struck his pen through it, placing his initial over the erasure, and returned it to the broker, who delivered it so altered to the vendor. The broker afterwards delivered to Cowie a bought note which differed materially from the sold note. In an action brought by the vendor against Cowie for non-performance of the contract as stated in the sold note, the Supreme Court at Calcutta considered that the sold note formed the contract, and found for the plaintiff; but the Judicial Committee of the Privy Council, upon appeal, considered that the parties in- tended the bought and sold notes together to form the agreement between the parties, notwithstanding Cowie's alteration of the sold note, and consequently, r>5:-|n-j-j that '^there being a material variation in the terms of the bought and sold notes, they did not to- gether constitute a binding contract (x). In another case, a broker, acting for the plaintiff, verbally con- tracted to buy certain hemp of the defendant, and sent him a note stating the terms, commencing thus : — " Sold, for Campbell (the defendant), to Moore (the plaintiff), 50 tons of Petersburgh clean hemp, ex G. G. to arrive, at £34 per ton, payment at the option of the buyer by acceptance on London at six months from delivery, or cash in 14 days less 2i per cent., to be taken from the quay at the landing weights, and to be a fair average quality of the season." The defendant sent back an- other note in these words : — " I have this day sold, through you, to M. 50 tons Petersburgh clean hemp, expected to arrive per G. G. at £34 per ton from the quay. If the ship is lost, or the hemp damaged on the voyage, this contract to be considered void for such (z) Ccwie V. Eemfry, 5 Moore (P. C.) 232. 175 161 SIMPLE CONTRACTS. [lECT. IV. quantity as may be lost or damaged. The quality to he of an average of the season, and if any dispute arises, the same to be settled by arbitration. Payment, six months' acceptance, or cash in 14 days less 2h per cent, discount, at the buyer's option. Customary allowances." The plaintiff sued for non-delivery of the hernj), treat- ing the note signed by the defendant as the contract, and it was held that the liability of the defendant r*lfi^"l ^icpended upon the ^question of fact, whether the note signed by him was intended by both parties to be the contract, in which case lie would be liable, or whether the defendnnt only intended to be bound as the seller, provided the plaintiff should also sign a note to bind himself as the buyer. " If this were a case," said Parke, B., in delivering the judg- ment of the Court of Exchequer, " in which the plain- tiff sought to prove a contract by means of bought and sold notes, made by a broker for both parties, he must have failed, for the two notes disagree, and there would have been no valid contract. This, however, is not the ease of a contract entered into by a broker for the buyer and seller ; the person wlio made the contract was, indeed, a broker, but he acted solely for the plaintiff. The plaintiff then insists that the note signed by the defendant is the contract, and if it be true that this was intended by both parties to be the contract between them, the defendant would be bound as a party to be charged, and the memorandum would be sufficient within the Statute of Frauds. But if Campbell, the defendant, never intended to be bound as the seller unless Moore was also bound as the buyer, and meant that Moore should sign the note on his part to bind him, then there was no valid contract between them " {y). (y) Moore v. Campbell, 10 Ex. 323; 23 L. J. (Ex.) 310; see Hejworth v. Knight, 33 L. J. (C. P.) 298. 176 LECT. I V.J OFFER AND ACCEPTANCE. 162 That the acceptance of the =-'offer, in order to be p::j^g3-| binding, must not be qualified by any fresh stipulation not contained in the offer, has also been strongly shown in contracts for the purchase of scrip and shares. These contracts are often made by letters, the intended purchaser applying by letter for shares, and the answer, after complying with this request, going on to stipulate that the shares should not be transfer- able, or adding some term not contemplated by the applicant (z). In such cases, in the absence of assent to the additional stipulation, the contract would be void ; and no such allottee could be sued on the transaction, for the stipulation was clearly not implied in the agreement to take the shares. Where the offer of a contract is made by letter, the offerer must be considered as making during every in- stant of the time his letter is travelling the same identical offer to the receiver (a). In like manner the receiver's acceptance of the contract is complete when in due time he sends his answer. This due time is ascertained by the usage of trade, by the actual stipulation of the par- ties, or by what is a reasonable time under the circum- stances (b). When the post is either 'Mirectly r-^-.p.-, or impliedly appointed by the party making ^ -■ the offer to be the channel of communication, the con- tract is complete when the letter accepting the offer is posted, even if the letter of acceptance never reaches its destination.^ The party accepting has then done all he (2) Wontner v. Shairp, 4 C. B. (56 E. C. L. R.) 404; Walstab v. Spottiswood, 15 M. & W. 501 ; Vollans v. Fletcher, 1 Ex. 20 ; Duke v Andrews, 2 Ex. 290 ; Chaplin v. Clarke, 4 Ex. 403 ; lie Direct Birmingham Railway Company, ex parte Capper, 19 L. J. (Ch.) 394. (a) Adams v. Lindsell, 1 B. & A. 681. (6) Adams v. Lindsell, supra; Meynell v. Surtees, 25 L. J. (Cli.) 259. ^ In Lewis v. Bro^vning, 130 Mass. 173, Gray, C. J., said : " In M'CuUoch v Eagle Ins. Co., 1 Pick. 278, this Court held that a contract made by mutual 12 177 164 SIMPLE CONTRACTS. [lECT. IV. was bound to do {c). Until acceptance, the offerer may revoke his offer {d) ; hut the revocatir>n, in order to operate as such, must be communicated to the party to whom the offer has been made before the latter has accepted it. For example, merely posting a letter of revocation which does not reach the party to whom the offer is made till after the latter has posted a letter of acceptance, would not be sufficient {e). The acceptance Pifi'S'l ^^ ^^^® offer, in order to be '''binding, must, as we have already seen, not be qualified by some stipulation not contained in the offer. It is perhaps hardly necessary to add that the law as to the accept- ance and retraction of offers is the same mutatis mutandis_ (c) So held in Household Fire Insurance Co. v. Grant, 4 Ex. Div. 21 G, 48 L. J. (Q. B., etc.) 577, by a majority of the Court of Apjjeal (Tkesiger and Bag- gallay, L. JJ., dissentiente Bramwell, L. J.). This case overrules Tlie British and American Telegraph Co. i'. Colson, L. E. 6 Ex. 108; 40 L. J. (Ex.) 97. See also Dunlop v. Higgins, 1 H. of L. C. 381 (where, however, the letter of acceptance did reach its destination, though after a delay caused by cir- cumstances over which the sender had no control) ; Re Imperial Land Co. of Marseilles, Harris's case, L. R. 7 Ch. App. 587 ; 41 L. J. (Ch.) 621 ; Wall's case, re the same Company, L. R. 15 Eq. 18; 42 L. J. (Ch.) 372. (d) Cooke V. Oxley, 3 T. R. 653 ; Routledge v. Grant, 4 Bing. (13 E. C. L. R.) 653 ; Warner v. Harrison, 28 L. J. (Q. B.) 18. (e) Byrne v. Van Tienhoven, 5 C. P. D. 344; 49 L. J. (C. P.) 316; Steven- son V. McClean, 5 Q. B. D. 346 ; 49 L. J. (Q. B.) 701 ; Re Imperial Land Com- pany of Marseilles, Harris's case, L. R. 7 Ch. App. 587; 41 L. J. (Ch.) 621. letters was not complete until the letter accepting the offer had been received by the person making the offer; and the correctness of that decision is main- tained, upon an able and elaborate discussion of reason and authorities, in Langdell on Contracts (2d ed.), 989-996. In England, New York, and New Jersey, and in the Supreme Court of the United States, the opposite view has prevailed, and the contract has been deemed to be completed as soon as the letter of acceptance has been put into the post-office duly addressed. [He cited the English cases referred to in the text and also] 2 Kent Com. 477 note c. ; Mactier v. Frith, 6 W^end. 103 ; Vassar v. Camp, 1 Kernan, 441 ; Trevor v. Wood, 36 N. Y. 307 ; Hallock v. Commercial Ins. Co., 2 Butcher, 268, and 3 Dutcher, 645 ; Tayloe v. Merchants' Ins. Co., 9 How. 390. But this case does not require a consideration of the general question ; for, in any view, the per- son making the offer may always, if he chooses, make the formation of the contract which he proposes dependent upon the actual communication to him- eelf of the acceptance." 178 LECT. IV.] COXSIDERATIOJf OF PROMISES. 165 wliatever be the means of communication employed.^ " It cannot make any difference whetlier the negotiation is carried on by post, by telegraph, or by oral message. If the offer is not retracted, it is in force as a continuing offer till the time for accepting or rejecting it has arrived. But if it is retracted there is an end of the proposal" (/). I have already stated to you that one of the main dis- tinctions between a contract by deed and a simple con- tract is, that the latter requires a consideration to support it, the former not.^ And here it is proper to observe, incidentally, that when I say that a contract by deed does not require a consideration to support it, I mean to say that it does not require a consideration for the pur- ])OBQ of binding the party who executes it, and rendering him liable. I do not by any means intend that you should understand that a consideration may not come to be a most im2)ortant ingredient in a contract by deed, as betw^een parties claiming a benefit under that deed and other parties having conflicting claims upon the person (/) Per Lush, J., in Stevenson v. McClean, 5 Q. B. D. 346, 351 ; 49 L. J. (Q. B.) 701,704. ^ As to contracts by letter, see Abbott v. Shepard, 48 N. H. 14 ; Stockhara V. Stockham, 32 Md. 196 ; Brown v. N. Y. C. E. 11. Co., 44 N. Y. 79 ; Chicago R. R. Co. V. Dane, 43 lb. 240 ; Knight v. Cooley, 34 Iowa, 218. As to contracts by telegraph, see Trevor v. Wood, 41 Barb. 255 ; 36 N. Y. 307 ; Beach v. Rari- tan R. R. Co , 37 N. Y. 457 ; "Wells v. Milwaukee R. R. Co., 30 Wis. 605 ; Duble V. Batts, 38 Tex. 312; Deshon v. Fondick, 1 Wood, 286. [See page *96 as to the application of the Statute of Frauds to contracts by Telegraph.] — s. ^ Upon the important subject of the rise and development of the doctrine of consideration recent research has thrown much light. The subject cannot be adequately treated in this place, but a few references may be useful to the student who desires further information. The most learned discussion of the subject, historically and pliilosophically, is that of Professor Holmes (Common Law, Lectures VII. and VIII. ). For an analysis of the case law see Professor Langdell's Select Cases on Contracts, and for a clear statement of tlie principles of the modern law see his Summary of the Law of Contracts, |^ 45-98. See also Judge Hare's " Notes of a Course of Lectures on Contracts," Lect. I., and, generally, the recent writers on contracts, Anson, Leake, Pollock, and Whai- ton. 179 165 COXSTDERATION OF PROMISES, [lECT. IY. executing it. For instance, the statute of the 13th Eliz. PifiPI ^' ^' *^'6^^^i's ^ great variety of deeds (if made without a valuable consideration) void as against creditors ; and this statute (which Lord Mansfield lias said is only declaratory of the Common Law) is founded on a perfectly righteous and equitable principle ; for how absurd and unjust would it be to allow a man to defeat the claims of his real creditors by entering into obligations to persons who had never parted with any value at all. When, therefore, I say that a deed is good without consid.eration, I do not mean to say that it stands for all purposes on the same footing as an instrument for which value has passed ; but what I mean that you should understand is this — that where the interests of third parties are not affected, but the question is be- tween the person who entered into the contract and the person with whom it is made, there a man cannot defend himself against a promise made by deed, by saying that he received no consideration for it, although he might defend himself upon that ground against the very same promise if it had been made by simple contract. I can- not, I think, put a better example of this than that which I put in a former lecture: — A. owes B. £50. Now, if I write upon a piece of paper as follows : — " I promise A. that I will discharge for him the debt due from him to B.," and give him the paper so written, here is a simple con- tract without any consideration for it; and, if I fail to per- r*l fi7l form the promise, no action will lie against *me, because a simple contract founded upon no con- sideration cannot be enforced : and yet, if I had sealed that very slip of paper, and delivered it to A. as my act and deed, an action would have lain against me had I afterwards failed in j^erforming it ; and to that action it would have been no defence to say that I received no 180 LECT. rV.] CONSIDERATION OF PROMISES. 1G7 consideration for mv undertaking; : I mio-ht sav, that I had been imposed upon, and persuaded to execute it by A.'s fraud ; or I might say, that the debt due to B. was an illegal one, and that my promise was made in pursu- ance of an illegal arrangement ; but that the promise was without consideration would be a defence of which, the contract being by deed, I could not be allowed to avail myself.^ But a simple contract is, as I have said, incapable of becoming the subject of an action unless supported by a consideration.^ Ex nudo pacto non oritur actio is an old and well-established maxim of our law, as well as of the civil law, and has been illustrated by a great variety of cases from time to time (g) : thus it has been laid down by Lord Kenyon (A), that a promise made by the captain of a ship to one of his seamen, when the ship was in '••'extraordinary danger, to pay him r:;:ir.o-i an extra sum of money as an inducement to extra exertion, was a void promise; because every seaman is bound to exert himself to the utmost for the safety of the shij), and therefore the captain would get nothing from the seaman in exchange for his promise except that which the seaman was bound to do before.^ And it has been iy) Westhead v. Sproson, 30 L. J. (Ex.) 265 ; McManus v. Bark, L. E. 5 Ex. 65 ; 39 L. J. (Ex.) 65. See also Dashwood v. Jermyn, 12 Ch. Div. 776. {h) Harris v. Watson, Peake, 72; Harris v. Carter, 23 L. J. (Q. B.) 295; 3 E. & B. (77 E.G. L. E.) 559. See Clutterbuck v. Coffin, 3 M. & G. (42 E. C. L. E.) 842 ; Hartley v. Ponsonby, 26 L. J. (Q. B.) 322. ' It has been before stated, that in some of the United States, the obligor of a specialty is, by statutory enactment, permitted, under some restrictions, to show its failure, as at common law, he could its illegality of considera- tion. — R. =" Ames V. Taylor, 49 Afe. 381 ; Eichardson v. Williams, lb. 558; Dorwin v. Smith, 35 Vt. 69; Smith r. Eogers. lb. 140 ; Xewhall r. Paige, 10 Gray, 316; Carr v. Card, 34 Mo. 513 ; Conover v. Still well, 34 X. J. 54; Glascow v. Hobbs, 32 Ind. 440 ; Worth v. Carr, 42 N. Y. 362.— s. ^ And to the same effect were Newman v. Walters, 3 B. & P. 612; Stilk v. Myrick, 2 Camp. 317; Smith i. Bartholomew, 1 Mete. 278. [Robb v. Mann, 181 168 CONSIDERATIOX OF PROMISES. [lECT. IV. held, that interest, being by merchantile usage payable upon balances, an agreement in consideration of interest upon a balance to give an extended time for paying it, was merely void {i). The documents put in by the defendant, said Parke, B., showed that interest was pay- able at the time of the contract, and therefore there was no consideration for that contract. The reason for the strictness with which this rule of law — that there must be a consideration to suj)port a simple contract — is enforced, is, to guard persons against being drawn hastily and inconsiderately into engagements which may prove ruinous to them. The law does not absolutely j)rohibit them from contracting a gratuitous obligation, for they may, if they will, do that by deed ; and it is thought that, a deed being an instrument requiring more of ceremony and formality, and sealing being considered all over Christendom as an act of much solemnity, and as suggesting the r===irQ1 ^contract to be extraordinary and important, more opportunity for thought is afforded to the party executing it than to a person entering into a simple contract, and, consequently, that it is not un- reasonable to give it a more stringent operation. The reason of the law of England on this point — one of the most important in our entire system — is very clearly explained in the judgment of the Court of Queen's Bench in Eastwood v. Kenyon {k), the case which I before mentioned with reference to the 4th sec- tion of the Statute of Frauds. The Lord Chief Justice remarks, in that case, that (i) Orme v. Galloway, 23 L. J. (Ex.) 118; 9 Ex. 544. See also Beer r. Foakes. 11 Q. B. D. 22 1 ; 52 L. J. (Q. B.) 712, reversing lb. 426. (^•) 11 Ad. & E. (39 E. C. L. R.) 438, 450; 9 L. J. (Q. B.) 409, 412. 11 Pa. St. 300; Gilmore v. Green, 14 Bush, 772; Bryan v. Brazil, 52 Iowa, ?oO.]— R. 182 LECT. IV.] CONSIDERATION OF PROMISES. 169 *' tlie eminent counsel who argued for the plaintiff in Lee V. Muggeridge (l), spoke of Lord Ilansfield as having considered the rule of 7iudum pactum too nar- row, and maintained that all promises deliberately made ought to be binding at law ; as they certainly are in honor and conscience." But the Chief Justice con- tinues : " The enforcement of such promises at law, however plausibly reconciled by the desire to carry into effect all conscientious engagements, might be at- tended with mischievous consequences to society — one of which would be the frequent preference of voluntary undertakings to claims for just debts.^ Suits would thereby be multiplied, and voluntary undertakings would be also multi2:)lied, to the prejudice of real ^creditors. The temptations of executors [^-^nr)-] would be much increased by the j)revalence of such a doctrine, and the faithful discharge of their duty be rendered more difficult." Perhaps, it may be added, that if this rule were not law, an expression of present intention, of mere good will, of no more than opinion {m), or even a civil and indirect refusal, would continually be made the grounds of actions ; for no one can have seen much of society, or attended much in Courts of Justice, without having observed how frequently such expressions are taken by the recipient in a sense very much more favourable to his interests and wishes than they were intended by the utterer to bear (n). (/) 5 Taunt. (1 E. C. L. R.) 36. The counsel were Mr. Serjt. Lens, and Mr. Serjt. Best, afterwards Lord Wynford. (m) Nicholson v. Ricketts, 29 L. J. (Q. B) 95. (n) See Puffendorff's Law of Nature, B. 3, cap. 5 ; and Shadwell v. Shadwell, 30 L. J. (C. P.) 97. ^ Thus services voluntarily done by one for another, without his privity or consent, afford no ground for an action, however meritorious they may be, as, for instance, in saving his property from fire : Bartholomew v. Jackson, 20 183 170 CONSIDERATION OF PROMISES. [lECT. IV. Now, with regard to the question — What does the law of England recognize as a coiisidei^ation capable of sup- porting a simple contract? Tlie best and most practical answer is, — Any benefit to the person making the promise^ or any loss, trouble, or inconvenience to, or charge upon the person to whom it is made} Sir Wm. Blackstone, in the second volume of his Commentaries (p. 444) , following the arrangement of the civilians, divides considerations into four classes: 1st. Do ut des, where I give something that something may be given to me; 2d. Facio ut r^-inyx facias, where I do something that "^"something may be done for me ; 3d. Facio ut des, where I do something that something may be given to me ; and 4th. Do ut facias, where I give something that some- thing may be done for me. Divisions of this sort are useful for the sake of arranging our ideas, and testing their clearness ; but the short practical rule is, as I have said, that any benefit accruing to him who makes the promise, or any loss, trouble, or disadvantage under- gone by, or charge imposed upon, him to whom it is Johns. 28 ; or by doing additional work to a particular job : Hart v. Norton, 1 M'Cord 22.— R. ^ The statement in the text, altliough it is the commonly accepted form of definition of consideration, cannot be allowed to pass without criticism. The more careful analysis of some of the modern writers on this subject has elimi- nated one of the terms of tiie definition and only admits detriment to the prom- isee as a valid consideration. This of course refers to detriment in a legal sense, i. e., the doing of something which the promisee was not legally bound 10 do, or the omission to do something which he had the legal right to do. This constitutes a valid consideration for the promise of the other party made in exchange for it, and the contract is complete. But unless this ele- ment be present the contract is imperfect, for consideration is wanting ; no matter how great the advantage experienced by the promisor, the promisee cannot enforce the promise unless he has contributed to that benefit by some vohmtary act or forbearance, something done or sufiered, on his part. In effect this is only another way of stating the rule (which is explained infra *175) that the consideration must move from the promisee — nothing done by C. will support a promise by A. to B. See Langdell, Summary of the Law of Contracts, §? 62, 63 ; Wharton, Contracts, ^ 505 ; Holmes, Common Law, Lect. 711. 184 LECT. IV.] COXSIDEEATION OF PROMISES. 171 made, is a sufficient consideration in the eye of the law to sustain the promise. Thus, let us suppose I promise to pay B. £50 at Christmas. Now, there must be a consideration to sustain this promise. It may be that B. has lent me £50 : here is a consideration by way of advantage to me.^ It may be that he has performed, or has agreed to perform, some laborious service for me : if so, here is a consideration by way of inconvenience to him, and of advantage to me at the same time. It may be that he is to labour for a third person at my request : here will be inconvenience to him without advantage to me : or, it may be that he has become surety for some one at my request ; here is a charge imposed upon him. Any of these will be a good con- sideration to sustain the promise on my part. Illustra- tions of this rule you may collect from various instances, among which I will refer you to Williamson v. Clem- ents (o), where the defendant being indebted '^'to nj:-, nn■^ the plaintiff on a bill of exchange endorsed to him, the plaintiff having lost that bill, gave to the de- fendant, at his request, a bond acknowledging that the bill was paid, and containing a condition for indemni- fying the defendant against his afterwards being com- pelled to pay the bill ; and the defendant, in considera- tion thereof, promised the plaintiff to pay him the amount of the bill. It will be observed, that it was a detriment to the plaintiff to acknowledge the bill to have been paid, since he thereby gave up any claim upon the bill which he might otherwise have had if he had found it. So in Whitehead v. Greetham, decided in the Exchequer Chamber {p), the declaration stated that the plaintiff had retained the defendant at his (o) 1 Taunt. 523. (p) 2 Bing. (9 E. C. L. K.) 464 ; Shillibeer v. Glyn, 2 M. & W. 143. * Obviously, however, of equal disadvantage to B. 185 ] 72 CONSIDEKATION OF PROMISES. . [lECT. IV. request to lay out £700 iu the purchase of an annuity for him ; that the defendant promised to lay it out securely, and that the plaintiif delivered him the money for that purpose ; and the Court held that there was a good consideration for that promise. It was clearly a detriment to the plaintift' to part with his £700. In another instance, one Charles Kennedy being indebted to the firm of Boeme and Smout, and the plaintiff having been appointed by the Court of Chancery receiver of the debts due to the firm, in con- sideration that the plaintiff would give C. Kennedy two months' time to pay, the defendant promised the r*1 7^1 pl^^itiff to pay him at the ^expiration of that period should C. Kennedy not do so. Here it is observable, that the plaintiff did not interfere as a stranger in the concerns of the firm for which he was appointed receiver. It was his duty to require the debtor to pay, and the duty of the debtor to pay him. The contract, therefore, to forbear to proceed against the debtor was a contract from which the plaintiff might incur a detriment, and it is a sufficient considera- tion for. a contract if one party receives a benefit, oi the other is exposed to a detriment from it {q). By a similar course of reasoning, the case of Hartley v. Pon- sonby was decided, — a case so nearly i-esembling in its circumstances that of Harris v. Watson, recently mentioned (r), that many were startled by the decision, as if it had been inconsistent with the latter. A ship being on a voyage from Liverpool to Port Philip and back, when in Port at P., became so short handed that it was dangerous to life to proceed with only the (q) Willatts V. Kennedy, 8 Bing. (21 E. C. L. R.) 5 ; Bunn v. Guy, 4 East, 190; Surtees v. Lister, 30 L. J. (Ex.) 369; Cooke v. Wright, 30 L. J. (Q. B.) 32 ; Scotson v. Pegg, 30 L. J. (Ex.) 225. (r) Ante, p. *1G7. 186 LECT. IV.] CONSIDEKATIOjS" OF PROMISES. 173 reduced crew. The captain being unable to procure additional hands, promised the able seamen remaining, who were under articles for the whole voyage, an ad- tional sum if they w^ould assist in taking the ship to the next port. It was held that the seamen were not bound to proceed on the voyage, as it involved *risk of life, and that the promise was therefore r:!:-j - .-i not nudum i:)actum, and was binding on the captain [&). In this case, it will be observed that the proceeding in the ship which had been rendered unfit for the voyage by the loss of a portion of the crew was not obligatory on the remainder, but was a detriment to them wliich they had not engaged to undergo ; as well as a benefit to the caj)tain which he was not entitled to demand. In a more recent case the defendant being in the employment of the plaintiffs in one capacity, agreed with them to serve them in another, it being understood at the time that the terms of their agreement should be reduced into writing. He thereupon entered into the latter employment, and being in it the written agreement was signed by him stating that in considera- tion of his entering into the plaintiff's employment at such a salary, he thereby agreed to do so, with the understanding that if he performed similar services for any other on the same ground he should pay the plain- tiffs the sum of £50. It was argued that having already entered on his new employment before he signed the agreement, he was in their employ on an implied contract, to serve them on his part, and to be paid on theirs, and consequently that the superadded restriction not to serve other persons was without con- sideration. But it is clear, and was so considered by the *Court of Common Pleas, that the agree- r^i^c-i ment was not perfected till it was signed, and (s) 26 L. J. (Q. B.) 322, 7 E. &. B. (90 E. C. L. R.) 872. 187 175 CONSIDERATION OF PROMISES. [lECT. IV. that if he had refused to sign it the plaintiffs might have refused to employ him any longer, and conse- quently that the consideration was really, as stated in the written agreement, his entering into the plaintiff's emj)loyment at such a salary [t). In strict agreement with what has been said, this consideration must proceed from the party to whom the promise is made. If it proceed from some third per- son, not in any way moved or affected thereto by the promisee, the latter is a stranger to the consideration, and a promise made to him is nudum pactum. Thus, in the case of Thomas v. Thomas {u), an action was brought upon an agreement between the executor of A. B. and the widow of the testator, which set out that the testator had declared his wish that his widow should enjoy certain premises for her life, and that it was agreed, in consideration of such desire and of the premises, that the executor should convey them to the widow, provided she would pay £1 towards the ground rent of those and certain other premises, and keep the premises conveyed in good repair ; and it was contended, that the real consideration of the executor's j)romise was the desire to comj^ly with the wish of the testator. The -, Court ^considered this no part of the considera- r 1761 . ... *- -J tion. " Consideration," said Mr. Justice Patte- son, " means something which is of some value in the eyes of the law moving from the plaintiff. It may be of some benefit to the plaintiff, or some detriment to the defendant, but at all event-s, it must be moving from the plaintiff. Now, that which is suggested as the con- sideration here, a pious respect for the wishes of the testator, does not in any way move from the plaintiff; (0 Muraford v. Gething, 29 I.. J. (C. P.) 103. (u) 2 Q. B. (42 E. C. L E.) 851. See Price v. Easton, 4 B. & Ad. (24 E. C. L.K.)433. 188 LECT. IV.] CONSIDEEATION OF PROMISES. 176 it moves from the testator, and, therefore, legally speak- ing, it forms no part of the consideration." The follow- ing case also proceeds on the same ground. Very soon after a marriage between the plaintiff and the daughter of A., the fathers of both parties agreed, in order to supply a marriage portion, to pay each of them a sum of money to the plaintiff, and that the plaintiff should have full power to sue for both sums, but the agree- ment was made by and between the two fathers only. After the deaths of both, the plaintiff sued the executor of A. for the sum which he had agreed to pay, but he was not allowed to succeed, as he was no party to the agreement, and no consideration moved from him {x). Provided there be some benefit to the contractor, or some loss, trouble, inconvenience, or charge, imposed uj)on the contractee, so as to constitute a consideration, the Courts are not willing to enter "''into the ques- ^. • • • P'1771 tion whether that consideration be adequate in ^ -' value to the thing which is promised in exchange for it.^ Very gross inadequacy, indeed, would be an index (z) Tweddle v. Atkinson, 30 L. J. (Q. B.) 265. ^ Hubbard v. Coolidge, 1 Mete. 93 ; Osgood v. Franklin, 2 Johns. Ch. 23 ; s. C. 14 Johns. 527 ; Bedel v. Loomis, 11 N. H. 9. " If a contract is deliberately made without fraud," said Wilde, J., in Train v. Gold, 5 Pick. 384, " and with a full knowledge of all the circumstances, the least consideration will be suf- ficient." — R. "A consideration is sufficient," says Judge Rogers, in Hind v. Holdship, 2 Watts, 104, " if it arise from any act of the plaintiff, from which the defend- ^ant or a stranger derives any benefit, however small, if such act is performed by the plaintiff with the assent, express or implied, of the defendant ; or by leason of any damages or any suspension or forbearance of the plaintiff's right at law or in equity ; or any possibility of loss occasioned to the plaintiff by the promise of another, although no actual benefit accrues to the party promising. It is not essential that the consideration should be adequate in point of actual value. The law does not weigh the quantum of consideration, having no means of deciding on that matter ; and it would be unwise to interfere with the facility of contracting, and the free exercise of the judgment and will of the parties. The law allows them to be the sole judges of the benefits to be derived from their bargains, provided there be no incompetency to contract, 189 177 CONSIDERATION OF PROMISES. [lECT. IV. of fraud, and might afford evidence of the existence of fraud ; and fraud, as I have ah-eady stated to you, is a and the agreement violates no rule of law. There is no case where mere in- adequacy of price, independent of other circumstances, has been held sufficient to set aside a contract between parties standing on equal ground, and dealing with each other without any imposition or oppression." And " the inequality," says Chancellor Kent, in Osgood v. Franklin, ' amounting to fraud, must be so strong and manifest, as to shock the conscience and confound the judgment of any man of common sense:" Troy Academy v. Nelson, 24 Vt. 189; Robinson V. Threadgill, 13 Ired. 39 ; Brown v. Budd, 2 Ind. 442 ; Tompkins v. Philips, 12 Ga. 52. The doctrine that inadequacy of consideration will not vitiate an agreement does not apply to a mere exchange of sums of money, whose value is exactly fixed, but to the exchange of something in itself of indeterminate value, for money, or perhaps for some other thing of indeterminate value. The consideration of one cent will not support a promise to pay six hundred dollars : Schnell v. Nell, 17 Ind. 29 ; Shepard v. Rhodes, 7 R. I. 470. It is enough to supjjort an executory contract that upon the contingency of its per- formance the requisite consideration must necessarily arise: Poughkeepsie Co. V. Griffin, 21 Barb. 454. The execution of a deed which conveys nothing is not a sufficient consideration to support a promise by the grantee to the grantor: Murphy v. Jones, 7 Ind. 529. It is not necessary that the considera- tion should pass from the person claiming the benefit of the promise : Cailleux V. Hall, 1 E. D. Sm. 5. A subscription to a common object with others, tliough gratuitous, creates a legal obligation: McDonald v. Gray, 11 Iowa, 508; Nor- ton V. Janvier, 5 Harring. 346 ; Trustees v. Robinson, 21 N. Y. 234. An agreement by which one party is sul ject to trouble, loss or inconvenience is not a nudum 'pactum: Findly v. Ray, 5 Jones, 125; Carr v. Card, 34 Mo. 513. A promise by one to pay part of another's debt in discharge of the whole does not discharge it, and is therefore without consideration unless that other be a party to the agreement: Whelan v. Edwards, 29 Ga. 315. A promise to in- duce one to comply with an e-xisting valid contract with a stranger is without consideration : Johnson v. Sellers, 33 Ala. 265. Doing that for which a re- ward is otiered with knowledge of the offer is a consideration for the promise to reward: Morrell t;. Quarles, 35 lb. 544; Ryer v. Stockwell, 14 Cal. 134. A subscription on the faith of which expenses or liabilities have been incurred, is binding : Do^de v. Glasscock, 24 Tex. 200 ; Wayne Institute v. Smith, 36 Barb. 576. An existing liability is a good consideration for a promise, whether express or implied, to pay money on request : Baily v. Bussing, 29 Conn. 1. Payment by a debtor of a part of a sum already due and payable, is no legal consideration for an agreement to extend the time for the.payment of the residue : Hunt v. Bloomer, 5 Duer, 202 ; Stryker v. Vanderbilt, 27 N. J. 68 ; Gibson v. Irby, 17 Tex. 173; M'Cann v. Lewis, 9 Cal. 246; Liening (. Gould, 13 lb. 598 ; State v. Davenport, 12 Iowa, 335. The payment of interest in ad- vance is sufficient consideration to support an agreement for further forbear- ance: Dickerson v. Commissioners 6 Ind. 128; V/arner v. Campbell, 26 III* 282. Making a payment on a note before it is due is sufficient consideration to support a promise to extend the time: Newsam v. Finch, 25 Barb. 175. A 190 LECT.'IV.] CONSIDERATION OF PROMISES. 177 ground on which the performance of any contract may be resisted. But if there be no suggestion that the party promising has been defrauded or deceived, the Court will not hold the promise invalid upon the ground of mere inadequacy ; for it is obvious, that, to do so, would be to exercise a sort of tyranny over the transactions of parties wdio have a right to fix their OAvn value upon their own labour and exertions, and would be prevented from doing so were they subject to a legal scrutiny, on each occasion, on the question whether the bargain had been such as a prudent man would have entered into. Suppose, for instance, I think fit to give £1000 for a picture not worth £50; it is foolish on my part ; but, if the owner do not take me in, no injury is done. I may have my reasons. Possibly, I may think that I am a better judge of paintings than my neigh- bours, and that I have detected in it the touch of Raphael or Correggio. It would be hard to prevent me from buying it, and hard to prevent my neighbour from making the best of his propert}^ j)i'ovided he did not take me in by telling me a false story about it. Accordingly, in the absence of fraud, mere inadequacy of consideration is no ""'ground for avoiding a p.^^_Q-, contract. You will see two remarkable in- ^ -■ stances of this in the cases of Bainbridge v. Firm- stone (y) and Wilkinson v. Oliveira {z), in the former of which the defendant in consideration that the plain- tiff had consented to allow the defendant to weigh cer- tain boilers of the plaintiff, promised to deliver up the (y) 8 A. & E. (35 E. C. L. R.) 743. (z) 1 Bing. N. C. (27 E. C. L. R.) 490. promise by a debtor that he will not pay a debt then past due until a future day named, and that lie will then pay the same with interest, is held not to be a good consideration for the promise of the creditor to extend the time : Kel- logg V, Olmsted, lb N. Y. 189.— s. 191 178 CONSIDERATION OF PROMISES. [lEOT. IV. boilers in tlie same condition as when lie received that consent ; and the Court held that the consideration was sufficient to sustain the promise. "We need not in- quire," said Lord Denman, C. J., " what benefit he ex- pected to derive. The plaintiff might have given or refused leave" {a). In the latter of these cases the defendant promised to give the plaintiff £1000 for the use of a letter which contained matters explanatory of a controversy in which the defendant was engaged, and the consideration was held not to be inadequate to sup- port the promise. There is an old case upon this subject, involving so singular a state of facts that I cannot forbear men- tioning it. It is called Thornborow v. Whiteacre, and is reported 2 Ld. Raym. 1164. It was an action in which the plaintiff declared that the defendant, in consideration of 2s. Qd. paid down, and £4 17^. Qd. to be paid on the performance of the agreement, promised to give the plaintiff two r*1 7Q1 gi'^i^^^ of rye corn on Monday, the 29th of *March, four on the next Monday, eight on the next, sixteen on the next, thirty-two on the next, sixty- four on the next, one hundred and twenty-eight on the next, and so on for a year, doubling on every successive Monday the quantity delivered on the last Monday. The defendant demurred to the declaration ; and upon calculation, it was found that, supposing the contract to have been performed, the whole quantity of rye to be delivered would be 524,288,000 quarters; so that, as Salkeld the reporter, who argued the demurrer, re- marked, all the rye grown in the world would not come to so much. But the Court said, that though the con- tract was a foolish one, it would hold at law, and that (a) See Smith v. Smith, 32 L. J. (C. P.) 149. 192 LECT. IV.] CONSIDERATION OF PROMISES. 170 the defendant ought to pay something for his folly.^ The case was ultimately compromised. I presume, however, that if, instead of demurring, the defendant had pleaded that he had been induced to enter into the contract by fraud, he would have been able to sustain his plea ; since it seems obvious, on the face of the thing, that the plaintiif was a good arithmetician, who, by a sort of catch, took in a man unable to reckon so well. Probably, the plaintiff had taken his hint from, the old story regarding the invention of the game of* chess. But, by demurring, the defendant admitted that there was no fraud, and, consequently, the only question was on the validity of the contract in the absence of fraud ; so that the case presents a strong example of the reluctance *of the Courts to enter into a ques- tion as to the adequacy of consideration. ^ -^ This reluctance is also very strongly exemplified by some cases turning on contracts in restraint of trade. By the law of England, a contract in general restraint of trade is void ; but if in partial restraint of trade only, it may be supported, provided the restraint be reasonable, and the contract founded on a consideration. And it was once laid down that the consideration must be adequate, and that the Courts would enter into the question of adequacy. However, they have now decided that they ought not to do so. These cases are particu- larly strong, for they are cases in which, contrary to the general rule of law, a consideration is required, even though the contract be by deed. I shall have occasion to mention them again in a subsequent lecture. At present, I will merely refer to the decisions (b). (6) Hitchcock v. Coker, 6 A. & E. (33 E. C. L. R.) 438 ; confirmed by Proctor V. Sargent, 2 M. & Gr. (40 E. C. L. R.) 20 ; and Green v. Price, 18 M. & W. * So in the old case in which the hor^e was sold for one barley-corn for the first nail in the horse's shoe, two for the second, and so on, doubling on each 13 193 180 CONSIDERATION OF PROMISES. [lECT. IV. The consideration must, nevertheless, be of some value in contemjDlation of the law ; for instance, if a man make an estate at will in favour of another, this is an insufficient consideration, for he may immediately determine his will (c). So, too, where a son had given to his father a promissory note, *and, to an ac- L -^ tion brought by his father's executor against him upon it, he j)leaded that he bad just ground to complain of the distribution which the father had made of his property, as the father had admitted ; and that it was thereupon agreed between them that the son should cease for ever to make any such complaint ; and that the father would discharge him from liability on the note, and the cause of action in respect thereof; and that such agreement should be accepted in satisfaction of the note : the Court of Exchequer clearly held, that there was no consideration for the agreement of the father. The son had no right to complain, for tJie father might make what distribution of his property he liked ; and the son's abstaining from doing what he had no right to do could be no consideration {d)} 695; 16 M. & W. 346, S. C, in error; Archer %>. Marsh, 6 A. & E. (33 E. C. L. R.) 9n9; and Leighton v. Wales, 3 M. & W.54o. (c) 1 Roll. Abr. 23, pi. 29. (d) White r. Bluett, 23 L. J. (Ex.) 36. nail, the jury found, under the direction of the Court, for 8/., the value of the horse: James v. Morgan, 1 Lev. 111. — r. ' In Sykes v. Dixon, 9 A.& E. (36 E. C. L. R.) 693, Lord Denman said: "To prove that Bradley was servant, a contract was put in, the operation of which was entirely on one side. It bound Bradley to serve the plaintiff, and no otlier person, for a specified time, and not to leave the service without giving twelve months' notice. . . . We think that the agreement put in was no contract of service ; for it was altogether on one side. Bradley was to serve one person only ; but that one was not bound to employ him. It was contended, for the plaintiff, that a promise must be implied, on the master's part, to pay Bradley for his labour ; but that would be the same in any service to which Bradley might engage himself; it is no consideration for this contract." See also Eosher v. Williams, L. E. 20 Eq. 210 ; Maull v. Vaughn, 46 Ala. 134 ; Pfeiffer f. Adler, 37 N. y 164 194 LECT. IV.] CO]S^SIDERATION OF PKOMISES. 181 I think that I have now sufficiently explained what it is that the law recognizes as a consideration sufficient to support a promise without deed. I must not, how- ever, conclude without noticing one class of cases which form a species of exception to the rule that a simple con- tract requires a consideration to support it. I allude to the case of a negotiable security, as a bill of exchange, or promissory note. These, not being under seal, are simple contracts ; but there is this marked distinction between the situation in which they stand *and ^ that in which any other simple contract stands, ^ ''■^ namely, that they are always presumed to have been given for a good and sufficient consideration, until the contrary is shown. And even if the contrar}^ be shown, still, if the holder for the time being have given value for the instrument, his right to sue on it cannot be taken away by showing that the person to whom it was origin- ally given could not have sued, unless, indeed, it be further shown that he (the holder) had notice of the circumstances, or that he took the security when over- due, which is a sort of constructive notice, and places him in the same situation as the party from whom he took it. But so long as nothing of that sort appears, every note and acceptance is prima facie taken to have been given for good consideration, and every indorse- ment to have been made on good consideration (e). (e) See the Act codifying the law relating to Bills and Notes, 45 & 46 Vict. c. 61. (Bills of Exchange Act, 1882) ss. 27-30. See also the ca-ses collected, Byles on Bills, last ed. ; Bayley on Bills, by Dowdeswell ; and Smith's Mer- cantile Law, last ed., by Dowdeswell. 195 [*183] LECTUEE V. CONSIDERATION OF SIMPLE CONTRACTS. EXECUTED CON- SIDERATIONS. WHERE EXPRESS REQUESTS AND PROMISES ARE OF AVAIL. MORAL CONSIDERATIONS. ILLEGAL CONTRACTS. RESTRAINTS OF TRADE. I ENDEAVOURED to explain in the last lecture what it is that the law of England recognizes as a considera- tion sufficient to support a promise without deed. I stated that any benefit to the person who makes the promise, or any loss, trouble, or disadvantage under- gone by or charge imposed upon the person to whom it is made, will satisfy the rule of law in this respect. In order to render this as clear as possible, I am about, before proceeding to the next branch of the subject, to illustrate it by mentioning a few decided cases, in which certain considerations have been held sufficient to sup- port the promises founded on them. It has been frequentl}^ decided, that, if one man have a legal or equitable right of suit agaiust another, his forbearance to enforce that legal or equitable right of suit is a sufficient consideration for a promise either by r*1 R41 ^^^^ person liable to him or '^by any third per- son, either to satisfy the claim on which that light of suit is founded, or to do some other and col- lateral act. Thus, where (a) the plaintiff in an action of assumpsit stated in his declaration that he was the assignee of a bond for £728 2s. 6d., in which the de- fendant was the obligor, and that, in consideration that the plaintiff would receive payment on certain specified days, and forbear proceeding in the meanwhile, the (a) Morton v. Burn, 7 A. & E. (34 E. C. L. E.) 19. 196 LECT. v.] CONSIDERATION OF PROMISES. 184 defendant had promised to pay on those days ; after a verdict for the plaintiff, it was objected, in arrest of judgment, that there was no consideration for the promise ; for that, if an action had been brouglit in the name of the obligee of the bond, the agreenient of the assignee to forbear would have been no defence, upon a ground which I have already sufficiently ex- plained, namely, that an obligation by deed cannot be discharged by an agreement without deed. The Court, however, decided that the consideration was sufficient ; " for," said the Lord Chief Justice, " although the agree- ment to forbear would not be pleadable to an action in the name of the obligee, yet, unless the plaintiff did forbear according to his agreement, he would not be able to sue on the defendant's promise." Thus, again, where {b) the plaintiff, who had been appointed by the Court of Chancery a receiver of the debts and '•■'moneys of a firm, agreed to give time of pay- ment to a person who owed money to the firm, ■- ^ in consideration of which a third person promised to guarantee the debt ; in an action againt the third person, it was objected that there was no sufficient consideration for his promise; the Court of Common Pleas, however, decided that there was. In another case the plaintiff had obtained judgment against Elizabeth Mackenzie for £57 debt, and 65s. costs ; and, in con- sideration that the plaintiff would forbear to execute a fieri facias on her goods, the defendant undertook to pay him £107 in three days. It was objected, that there was no consideration, or, at least, no sufficient considera- tion : but Lord Tenterden said, " It is true the plaintiff might not perhaps have been entitled to recover to the {h) Willatts V. Kennedy, 8 Bing. (21 E. C. L. R.) 5; Parker v. Leigh, 2 Stark. (3 E. C. L. R.) 229- Atkinson r. Bayntun, 1 Bing. N. C. (27 E.G. L.R.) 444. 197 185 CONSIDERATION OF PROMISES. [lECT. V. full extent of £107, though, it is to be observed, he might have levied the cost of the execution in addition to the sum given by the verdict. But he had a right at least to levy £60 ; and if, in consideration of his for- bearing that, the defendant promised to pay him the larger sum ; — if the inconvenience of an execution against these goods at the time in question was so great, that the defendant thought proper to buy it off at such an expense, I do not see that the consideration is insuffi- cient for the promise " (cf (c) Smith V. Algar, 1 B. & Ad. (20 E. C. L. R.) 603. * Forbearance to sue or proceed, has always been held a sufficient considera- tion: Haniaker v. Eberly, 2 Binn. 506 ; Johns v. Potter, 5 S. & R. 519 ; Lons- dale V. Brown, 4 Wash. C. C. 148; Clark v. Russell, 3 Watts 213; Downing v. Funk, 5 Rawle, 69 ; Silvis v. Ely, 3 W. & S. 420 ; Kean v. M'Kinsey, 2 Pa. St. 30 ; Dundas v. Sterling, 4 lb. 73. But if the creditor has not the legal right to sue, at any time during which he promises to forbear suit, the promise to pay in consideration of such forbearance is without consideration, and conse- quently void : Martin v. Black, 20 Ala. 309. In Caldwell v. Heitshu, 9 W. & S. 51, the term " further forbearance," as the consideration expressed in a written guarantee, was construed to mean forbearance, for a corv^.nient or reasonable time, taking into view in its computation as an element the period which had heretofore been permitted to elapse, without enforcing payment; and what is a reasonable or convenient time, the Court must determine. For- bearance to sue a debt due and payable, upon receiving a personal promise of payment from the assignee in pais of the debtor, is evidence from which a jury may infer an agreement to forbear which is a good consideration for the promise : Boyd v. Freize, 5 Gray, 553. In order to constitute a valid contract of forbearance of suit, it is necessary that it should be definite and certain as to the terms of forbearance and the period of it : Garnett v. Kirkman, S3 Miss. 389. The promise of A. to pay the debt of B. in consideration of for- bearance is not binding, unless accepted by the promisee. To make it binding both must be bound: Shupe v. Galbraith, 32 Pa. St. 10. A promise in con- sideration of forbearance to pay the debt of an infant, who ratifies the con- tract after arriving at full age, is valid and binding on the promisor : Kuns v. Young, 34 lb. 60. If the promisee perform the thing required, though not bound by the agreement to do it, the performance is a consideration and the promisor is bound : Crawford r. Avery, 35 Miss. 205. A promise to pay money in consideration of forbearance to sue when there is no legal cause of action is void: Palfrey v. Portland R. R. Co., 4 Allen, 55. See also Steadman V. Guthrie, 4 Mete. (Ky.) 147; McCelvy v. Noble, 13 Rich. 330; Sharpe v. Rogers, 12 Minn. 174: Mechanics' Bank v. Wixson, 42 N. Y. 438.— s. 198 LECT. v.] CONSIDEEATION OF PEOMISES. 185 And where a man who has a judgment debt r^i ggn *takes from his debtor a promissory note for the amount, payable at a certain future time, it must be inferred that he thereby enters into an agree- ment to suspend his remedy for that time, and if so, that is a good consideration for the giving of the note (d). AUhough a man has not a clear legal or equitable right, yet if his right or claim is doubtful, and not clearly nugatory or illegal, the abandonment, or, for the (d) Belshaw v. Bush, 29 L. J. (C. P) 24 ; Baker v. Walker, 14 M. & W. 465. See Tempson v. Knowles, 7 C. B. (62 E. C. L. R.) 651 ; Wilson v. Bevan, 7 C. B. (62 E. C. L. R.) 673. Mere forbearance to sue without any agreement to that effect, is not a suffi- cient consideration for the promise of another to pay the debt of the person liable, although the act of forbearance was induced by such promise : Manter I'. Churchill, 127 Mass. 31. Forbearance to contest a will is a good considera- tion, and a note given after the statutory period for contesting wills is good, if in pursuance of an agreement for settlement made within such period : Hin- dert V. Schneider, 4 111. App. 203. Where a tax collector, in consideration of the promise of the owner of land advertised to be sold for taxes, delays the sale beyond the advertised time, a sufficient consideration for the promise ia given, and this without regard to the belief of the collector in the validity and regularity of the assessment : Gove v. Newton, 58 N. H. 359. A promise to pay money for the discontinuance of a suit is upon a sufficient consideration^ thougli the defendant might have prevailed in the suit : Flannagan v. Kilcome, 68 N. H. 443. An agreement to forbear bringing suit for a debt due for an indefinite time, if followed by actual forbearance for a reasonable time, is ai good consideration for a promise to pay the debt by a person other than the debtor : Howe v. Taggart, 133 Mass. 284. The maker of a note, being sued thereon, agreed, in consideration of forbearance to sue, to pay compound interest thereon for the remainder of its term : JJeld, that there was sufficient ♦consideration for the agreement : Jasper County v. Tavis, 76 Mo. 13. A promise to guarantee a debt already due, made in consideration of the forbear- ance of the creditor to attach the debtor's goods, is void when there was no valid ground of attachment: Smith v. Easton, 54 Md. 138. A promise by a creditor to forbear the institution of proceedings in bankruptcy against his debtor is not a sufficient consideration to support a promise by a third party to pay the debt, if, in fact, the creditor could not have sustained such proceedings, though he believed that he could have sustained tliem, and though the third party believed that forbearance to proceed would be advantageous and bene- ficial to himself: Ecker v. McAllister, 54 Md. 362. 199 186 CONSIDERATION OF PROMISES. [lECT. V. same reason, the forbearance of an action brought to enforce it, is a sufficient consideration for a promise {e). Where the phiintiff's goods had been seized by the Excise, and he had afterwards entered into an agree- ment with the Commissioners of Excise, that all pro- ceedings should be terminated, the goods delivered up to him, and a sum of money paid by him to the Com- missioners, Parke, B., rests his judgment on the ground that this agreement of compromise honestly made, w^as for a consideration, and binding (/). Indeed the dis- puted claim may be wholly unfounded, and yet the compromise of, or forbearance to enforce the claim may be a good consideration, if the claim be made bona fide at the time of the agreemant to compromise or forbear {g). r*1«71 *Thus, in Cook v. Wright (h), the trustees under a local Act called on the agent of the owner of certain houses to pay certain expenses charge- able under the act on the owner. The agent told the trustees that he was not owner but that B. was, and that such owner and not he was liable ; but the trustees notwithstanding, really believing that he was liable, threatened to take proceedings against him. There- upon the agent, although he knew he was not liable, gave his own promissory notes to the trustees, on their agreeing to take less than the amount demanded, and (e) Longridge v. Dorville, 5 B. & Ad. (7 E. C. L. R.) 117 ; Stracy v. Bank of England, 6 Ring. (19 E. C. L. R.) 754. (/) Atlee V. Backhouse, 3 M. & W. 633. {g) Callisher v Bischoffsheim, L. R. 5 Q. B. 449 ; 39 L. J. (Q. B.) 181. See, however, the remarks of Brett, L. J., on this case in Ex parte Banner, in re Blythe, 17 Ch. Div. 480, 490; 51 L. J. (Ch.) 300, 302. His Lordship there questions " whether, in order to support a compromise of an action, it is not necessary to show, not only that the plaintiff believed that he had t good cause of action, but that the circumstances did in fact raise some doubt whether there was or was not a good cause of action, and," he adds, " I ven- ture to doubt whether, if there was clearly and obviously no cause of action, the mere belief of the parties that there was would support the compromise." {h) 1 B. & S. (101 E. C. L. R.) 559 ; 30 L. J. (Q. B.) 321. 200 LECT. v.] CONSIDERATION OF PEOMISES. 187 allowing it to be paid by instalments, and this was decided to be a good consideration. A fortiori, where the right is not doubtful, but the amount of the claim only is disputed, an agreement for the settlement of all disputes upon the payment of a definite but smaller sum than that claimed, is held to be founded upon suf- ficient consideration (iy. But it would be another ^matter if a person made a claim which he knew r.^^ r>r>-| to be unfounded. Thus {k), where issue had been joined in a previous action for the recovery of a sum of money from the defendant, who had thereupon promised to pay the money and costs, in consideration (i) Edwards v. Baugli, 11 M. & \V. 641 ; Wilkinson v. Byers, 1 A. & E. (28 E. C. L. R.) 106 ; Llewellyn v. Llewellyn, 3 D. & L. 318. (k) Wade v. Simeon, 2 C. B. (52 E. C. L. R.) 548, and see Callisher v. Bischoffsheim, supra. ^ " A compromise of a doubtful title, when procured without such deceit as would vitiate any other contract, concludes the parties, though ignorant of the extent of their rights." Gibson, C. J., in Hoge v. Hoge, 1 \Vatts, 216 ; Brown v. Sloan, 6 Watts, 421 ; Meanor v. M'Kowan, 4 W. & S. 304 ; Rineharl V. Olwine, 5 lb. 163 ; M'CuUoch v. Cowher, lb. 417 ; Chamberlain v. M'Clurg, 8 lb. 37 ; Logan v. Matthews, 6 Pa. St. 417. Even when there was a mutual mistake of the law, the parties having acted in good faith, a compromise has been supported : M'Coy v. Hutchinson, 8 W. & S. 66. The compromise of an action of slander, in which the words laid in the declaration were not action- able, was held a good consideration: O'Keson v. Barclay, 2 P. & W. 531. That the claim was evidently without color would be a circumstance to show fraud or imposition upon a weak understanding, but if a man with his faculties about him, makes a promise to get rid of an annoying claim, which, though worthless, it will cost him time, trouble, and money to contest, it would be drawing the Court into too nice a discussion to determine what degree of doubt there must be about it to give validity to the compromise. A com- promise of conflicting and doubtful claims or the giving up a suit instituted to try a question respecting which the law is doubtful, is a sufficient considera- tion to support an agreement to pay a stipulated sum : Field v. Weir, 28 Miss. 56 ; Burnham v. Dunn, 35 N. H. 556 ; Mayo v. Gardner, 4 Jones, 359 ; Jarvis V. Sutton, 3 Ind. 289 ; Kerr v. Lucas, I Allen, 279 ; Allen v. Prater, 35 Ala. 169 ; Crans v. Hunter, 28 N. Y. 389. An agreement to settle a family controversy cannot be considered a nude pact : Watkins v. Watkius, 24 Ga. 402. Where a claim is legally groundless a promise upon a compromise of it or of a suit upon it, is not binding: Schnell v. Nell, 17 Ind. 29. See also Crans v. Hunter, 28 N. Y. 389 ; Fleming v. Ramsey, 46 Pa. St. 252; Farmers' Bank v. Blair, 44 Barb. 641 ; Scott v. Warner, 2 Laos. 49 ; Snow v. Grace 29 Ark. 131.— s. 201 188 C0^^SIDEEAT10N OF PROMISES. [lECT. V. that the plaintiff would forbear further proceedings ; an action having been brought upon this promise, the defendant pleaded that the plaintiff never had any cause of action agiiinst the defendant in respect of the subject-matter of the said action. "To that," said Tindal, C. J., in giving judgment, " the plaintiff has demurred, and, doing so, admits the statement contained in it, that he had no cause of action in the original suit, to be true. Having made that admission, it appears to me that he is estopped from saying that there was any valid consideration for the defendant's promise. It is almost contra bonos mores, and certainly against all legal principle, that when a man knows that he has no cause for it, he should still persist in prosecuting an action. Then, in order to establish a binding promise, the plaintiff must show a consideration for it, consisting of something which is either beneficial to the defendant or detrimental to the plaintiff. It cannot, however, be said that the foregoing of such an action can be re- garded by a Court as beneficial to the defendant, because r*1ftQ1 ^^® ^thereby saves the risk of defeat, and the extra costs which he would necessarily incur in his defence; for we must assume that the result of the action would have been in his favour, and the law would enable him to recover costs, which it regards as a compensation for all the costs the defendant sustains. Neither can the foregoing of the action be regarded as detrimental to the plaintiff, for we can only view it as saving him from the payment of those costs. The consideration, therefore, fails upon both grounds." Again it has been decided, that, if I entrust a man to do some act for me, although I am to pay him noth- ing for performing it, still the mere trust which I re- pose in him is a consideration for a promise on his part to conduct himself faithfully in the performance of 202 LECT. v.] CONSIDERATION OF PROMISES. 189 it (/). Nay, so far do tlie cases on this subject go, that it is settled that not only is the reposal of such trust a sufficient consideration for an express promise on the part of the 2:)erson in whom it is reposed to conduct himself faithfully in the performance of it; but the law, even in the absence of an exjDress promise, implies one that he will not be guilty of gross negligence. This 'was the point decided in the famous case of Coggs v. Bernard (m). '•'In this case Bernard had undertaken safely r*iQA-| and securely to take up several hogsheads of brandy from one cellar, and safely and securely to lay them down again in another ; and he was held bound by that undertaking, and responsible for damage sus- tained by them in the removal. The reason is, said Mr. Justice Gould, the particular trust reposed in the defendant, to which he has concurred by his assump- tion, and in executing which he has miscarried by his neglect. If goods are deposited with a friend, and are stolen from him no action will lie. But there will be a difference in that case upon the evidence how the matter appears. If they are stolen by reason of a gross neglect in the bailee, the trust will not save him from an action; otherwise, if there be no gross neglect. But, if a man takes upon him expressly to do such an act safely and securely, if the thing comes to any damage by his mis- carriage, an action will lie against him. And on this jjoint of the law it is that the celebrated distinction occurs between remunerated and unremuner- ated agents ; from the former of whom the law implies a promise, that they will act with reasonable diligence ; {I) See Whitehead v. Greetham, 2 Bing. (9 E. C. L. R.) 464; Shillibeer v. Glynn, 2 M. & W. 143 ; Bainbridge v. Firmstone, ante, p. *178. [m] 2 Ld. Eaym. 909 ; 1 Smith, L. C. 199 (8th ed.). See Gladwell v. Steg- gall, 5 Bing N. C. (35 E. C. L. E.) 733 ; Blackmore v. Bristol and Exeter Railway, 27 L. J. (Q. B.) 167 ; 8 E. & B. (92 E. C. L. R.) 1035. 203 190 CONSIDERATION OF PROMISES. [lECT. V. from the latter, only that they will not be guilty of gross negligence. Thus, where a stage-coachman re- ceived a parcel to carry gratis, and it was lost upon the r*-|Qi-| road. Lord ^Tenterden directed the jury to consider whether there was great negligence on the coachman's part {n). And where the declaration stated that, in consideration that the plaintiff, at the defendant's request, would employ him to lay out £1400 on the purchase of an annuity, the defendant promised to perform his duty in the premises, yet did not do so, but laid it out in the purchase of an annuity on the personal security of insolvent persons, the Court arrested the judgment, on the ground that the defend- ant was an un remunerated agent, and was not charged with having acted negligently or dishonestly {p). There is another equally remarkable distinction, namely, that a remunerated agent may be compelled to enter upon the performance of his trust, or at least made liable in damages if he neglect to do so ; whereas an unre- munerated agent cannot, although, as we have seen, he may be liable for misconduct in the performance of it. This proposition is well illustrated in the case of Elsee V. Gatward {p), where one count of the declaration, stating that the plaintiff retained the defendant, a car- penter, to repair a house before a given day, that the defendant accepted the retainer, but did not perform the work within the time, whereby the walls of r*i 09-1 ^'^^^ plaintiff's house were damaged, was held to be insufficient as not showing any considera- tion ; but another count, stating that the plaintiff, being possessed of some old materials, retained the defendant (n) Eeauchamp v. Powley, 1 M. & Rob. 38. See, as to the meaning of gross negligence, Beal v. S. Devon Rail. Co., 3 H & C. 336. (0) Dartnall v. Howard, 4 B. & C. (10 E. C. L. E.) 345; Doorman v. Jen- kins, 2 A. «& E. (29 E. C. L. E.) 256. (p) 5 T. R. 143. 204 LECT. V] CONSIDERATION OF PROMISES. 192 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 expense, was held good, as it appeared that the defendant had entered on the per- formance of the work. Again, if one man is compelled to do that which another man ought to have done and was compellable to do, that is a sufficient consideration to support a prom- ise by the former to indemnify him. Such is the com- mon case of a surety who has been compelled to pay a demand made against the principal, and who, as we know, is entitled to bring an action to recover an in- demnity. And such is also the case of an endorser of a bill, who, on account of the acceptor's default in not paying the bill when due, is compelled by the holder to pay him the amount ; the endorser may sue the acceptor to recover an indemnity {q). In like manner, if one of several joint contractors, not being partners (whose rights inter se are not at common law ever decided), has been compelled to pay, or in pursuance of his legal obligation has paid, the whole of their common liability, he is entitled to recover from each *of them his ^.^^^-, r 1931 proportional share (r). An instructive exam- ^ -• pie of the same rule is afforded by the case of Sutton v. Tatham (s). There, the broker for a seller having entered into a contract for the sale of stock, which was (q) Pownall v. Ferrand, 6 B. & C. (13 E. C. L. E.) 439. See also 45 & 46 Vict. c. 61 (Bills of Exchange Act, 1882), s. 57. (r) Holmes v. Williamson, 6 M. & S. 158 ; Prior v. Hembrow, 8 M. A W. 873 ; Pitt V. Purssord, 8 M. & W. 538 ; Batard v. Hawes, 22 L. J. (Q. B.) 443 : 2E.&B. (75E. C. L. R.) 287. (s) 10 A. & E. (37 E. C. L. R.) 27 ; Pawle v. Gunn, 4 Bing. N. C. (33 E C L. R.) 445 ; Bayliffe v- Butterworth, 1 Ex. 425; Bayley v. Wilkins, 7 C. B. (6? E. C. L. R.) 886 ; Westrop v. Solomon, 8 C. B. (65 E. C. L. R.) 345; Taylor -. Stray, 26 L. J. (C. P.) 185, 287 (Ex. Ch.) ; 2 C. B. (N. S.) (89 E. C. L. R.^ 175, 197. 205 193 EXECUTORY CONSIDEEATIOXS. [lECT. V. not fulfilled by his principal, and similar stock having been thereupon purchased at a higher price by the broker of the purchaser, the seller's broker, in obedi- ence to a rule of the Stock Exchange, paid the differ- ence, and also the commission of the purchaser's broker; and it was held that the seller's broker might recover from his principal the amount of such payments, by showing that it was compulsory upon him to make them. These examples seem sufficient to explain the nature of the species of consideration now before us (t) . I might cite a multitude of other cases in which ques- tions have arisen as to the sufficiency of the considera- tion ; but I think that the instances I have already given are sufficient for the purpose I had in view, which was, to illustrate the general nature of the questions which arise on the sufficiency of a consideration to sup- port a promise. * There is, however, one thing more to be ob- ■- -' served, and that is the distinction between ex- ecuted and executory considerations. Now, with regard to the meaning of these words, which you will continu- ally hear used in legal arguments, it is this : — an exe- cuted consideration is one which has already taken place, an executory consideration one which is to take place — one is past, the other future. Thus, if A. delivered goods to B. yesterday, and B. makes a promise to-day in consideration of that delivery, this promise is said to be founded upon an executed consideration, because the delivery of the goods is past and over. But, if it be agreed that A. shall deliver goods to B. to-morrow, and that B. shall, in consideration, do something for A., here is an executory consideration, because the delivery of the goods has not yet taken place. And so, whenever, (0 Toussaint i-. Martinnant, 2 T. R. 100 ; Fisher v. Fallowes, 5 Esp. 171 ; Jeffreys v. Gurr, 2 B. & Ad. (22 E. C. L. E.) 833. 206 LECT. v.] EXECUTORY CONSIDERATIONS. 194 at the time of making a promise, the consideration on which it is founded is past, the consideration is said to be executed ; whenever the consideration is future, it is said to h'd executory} Now, between executed and executory, or, in other words, between past and future considerations, the law makes this distinction, namely, that an executed con- sideration must be founded on a previous request ; aij ^ There are also said to be two other kinds of consideration, viz., concurring and continuing. The former arises in the case of mutual promises, as wher'' A. and B. being competitors for the bounty for the best manufactured clotli^ agreed that the successful competitor should divide the bounty with the othei, the promises were mutual, and in consideration of each other : Briggsi'. Tillo- ton, 8 Johns. 306. So when several promise to contribute to a common oly ject : Stewart v. Trustees of Hamilton College, 2 Den. 403 ; Society of Tro; V. Perry, 6 N. H. 164 ; where one promises to become a partner, and tlie othe^ promises to receive him as such : M'Neill v. Reid, 9 Bing. (23 E. C. L. R.) 68 and the like; Wood v. Rice, 481; Wightman v. Coates, 15 Mass. 1 ; Willarc V. Stone, 7 Cow. 22. In cases of concurrent considerations, if the promise of either party should fail to bind him (as from illegality of subject-matter, oi any such cause), the other promise will be deprived of its support, and the contract could not be enforced. It is also necessary that the promises should be mutual and simultaneous: Thornton z'. Jenyns, 1 Scott, 74; and an aver- ment that, in consideration of the plaintiff's promise, the defendant " a0er- wards, to wit, on the same day, promised," lias been held bad, the promise hav- ing no consideration ; that is, no consideration but another promise, and that promise was not a mutual and simultaneous one : Livingston v. Rogers, 1 Cai. 583; Fricke v. V^ood, 12 Johns. 190; Keep v. Goodrich, lb. 397. It has been sometimes said that a continuing consideration is sufficient to sup- port a promise, as where one should promise in consideration of what the other party had done and might thereafter do. But, in reality, it is the exe- cutory part of the consideration which is alone valuable, and is sufficient to support the whole promise ; and such, upon examination, will, it is believed, be found to be the true ground of decision of the cases : Pearl v. Unge, Cro. Eliz. 94 ; Brett v. J. S., Cro. Eliz. 735 ; Colton v. Westcott, 1 Rolle, 381 ; Loomis V. Newhall, 15 Pick. 159 ; Andrews v. Ives, 3 Conn. 368. — r. Mutual promises constitute a sufficient consideration for the support of a contract: Forney v. Shipp, 4 Jones, 527; Nott v. Johnson, 7 Ohio St. 270; Leach v. Keech, 7 Clarke, 232 ; Aid rich v. Lyman, 6 R. I. 98 ; Funk v. Hough, 29 111. 145 ; Briggs v. Sizer, 30 N. Y. 647 ; Downey v. Hinchman, 25 Ind. 453; Boies V. Vincent, 24 Iowa, 387 ; Messesquor v. Sabin, 48 Vt. 239. And see as to subscriptions: Underwood v. Waldson, 12 Mich. 73; Van Rensselear v. Aiken, 44 Barb. 547 ; Pitt v. Gentle, 49 Mo. 74 ; Cooper v. M'Crimmin, 33 Tex. 383 ; Lathrop v. Knapp, 27 Wis. 214.— s. 207 194 EXECUTED CONSIDERATIONS. [lECT. \\ executory one need not, or, to speak more correctly, its very terms imply a request. For, if A. promise to re- munerate B. in consideration that B. will perform some- thing specified, that amounts to a request to B. to per- form the act for which he is *to be remuner- L -^ ated {u). For instance, in the case of Hunt v. Bate {x), Bate's servant was arrested and sent to prison, and Hunt became bail for him, and procured his libera- tion, after which the master promised Hunt to save him harmless. Hunt was obliged to pay the servant's debt, and brought an action against Bate upon his promise to indemnify him ; but the Court held that it would not lie. " For," said the Judges, " the master did never make request to the plaintiff to do so much, but he did it of his own head." But the report goes on to say, " in another action brought on a promise of twenty pounds made to the plaintiff by the defendant, in consideration that the plaintiff," at the special instance of the defend- ant, had taken to wife the cousin of the defendant, that was a " good cause of action, though the marriage was executed and pa^t before the undertaking and promise, because the marriage ensued at the request of the de- fendant."^ (u) 1 Smith, L. C. 155, note, 8th ed. {x) Dyer, 272 ; Pourtales Gorgier v. Morris, 29 L. J. (C. P.) 208. ^ A very good ilhistration of this principle may be found in the case of Dearborn v. Bowman, 3 Mete. 155, where the plaintiff had in a political campaign rendered services in the circulation of pamphlets to aid the elec- tion of the defendant, who had subsequently promised to pay him therefor, and the Court, in holding the promise to be destitute of consideration, said, " Such services impose no obligation, legal or moral, on the defendant, and it would be somewhat dangerous to hold that they created any honorary obligation on him to pay for them. Nor would it be aided in a legal view by a previous custom, if proved, for candidates to contribute to the payment of similar ex- penses, whether successful or otherwise in the election. Nor were these ser- vices performed at the request of the defendant. On the contrary, it ap- peared by the evidence that they were performed by the chairman of the 208 LECT. v.] EXECUTED CONSIDERATIONS. 195 These two eases clearly illustrate the distinction be- tween an executed consideration moved by a previous re- quest, which will support a promise, and an executed consideration not moved by a previous request which will not support a promise.^ You will find the same county committee, who alone was reponsible for the payment, and between whom and the defendant there was no privity, nor even any communication, until long after the services had been performed. The rule of law seems to be now well settled, though it may have been formerly left in doubt, that the past performance of service constitutes no consideration even for an express promise, unless they were performed at the express or implied request of the defendant, or unless they were done in performance of some duty or obliga- tion resting on the defendant : Mills v. Wyraan, 3 Pick. 207 ; Loomis v. New- hall, 15 lb. 159 ; Dodge v. Adams, 19 lb. 429. As the services performed by the plaintiff were not dene at the request of the defendant, as they were not done in the fuKilnient of any duty or obligation resting on him, there was no consideration to convert the express promise of the defendant into a legal obligation." To the same point are Snevily v. Kead, 9 Watts, 396 ; Geer v. Archer, 2 Earb. 420; Hudson v. OvertuffJ 2 111. 170; Kinnerly v. Martin, 8 Mo. G9S ; Beaumont v. Reeve, 8 Q. B. (55 E. C. L. R.) 483.— r. ' This statement should be somewhat qualiKed. It has already been pointed out that a consideration is some detriment suffered by the promisee in reliance upon the promise of the promisor. Now if the consideration be executed (that is, past) at the time the promise is made, it is obvious that the promisee did not afford this consideration upon the faith of the promise, for he could not know that such a promise would ever be made, and it is equally obvious that the promisor received nothing in return for his promise, either when he made it or at any other time — that which he received from tlie promisee he had already obtained, and in regard to it his position would never be altered if he never made any promise at all. Is the case altered if the consideration moved at the request of the promisor? If I request some one to perform some service for me, in no way implying that I expect to compensate liim for it, and he does it, and I subsequently thank him for the service rendered and promise that because of it I will do something for him, will this promise bind me? If the language quoted from Lampleigh v. Braithwaite be a correct statement of the law, it will, and I shall be held to the performance of a promise in return for which I received nothing, and wliich was entirely voluntary on my part. But upon this point Lampleigh v. Braithwaite and similar cases must be regarded as overruled : Livngdell, Cases on Contracts, ii, 1035 et seq. An obligation sometimes arises from a past transaction, but this is where the obligation is imposed by the law, and although it is known as an implied contract, the agreement of the parties has nothing to do with its binding force : infra, pp. *197 ct seq. Accord- ingly it is held that when the law implies a promise from such a transaction — such an executed consideration, as it is called — no different promise, no matter how clearly expressed, can be enforced : infra, p, *206. 14 209 195 EXECUTED CONSIDERATIONS. [lECT. V. PlQn <^i'*tinction clearly explained in *Lampleigli v. Braithwaite {y), where the Court said, "a mere voluntary courtesy will not have a consideration to uphold an assumpsit. But if that courtesy were moved by a suit or request of the party who gives the assump- sit, it will bind ; for the promise, though it follows, yet it is not naked, but couples itself with the suit before, and the merits of the party procured by that suit, which is the difference." In a modern case this prin- ciple was applied where the question was, as to whether there had been any consideration given for a Promissory Note. A., the plaintiff, havin«^ performed gratuitously services for B., received from him a promissory note, with an understanding that he should not only accept it as a gift for wliat was past, but that it should be a re- muneration for future services to be rendered as long as B. should require them. A. continued to perform the services until B.'s death, when he sued B.'s executor's upon the note. It was held, that in order to make the future services a good consideration for giving the note, it was incumbent on the plaintiff to show that there was some contract binding him to perform future ser- vices which might have been enforced by the giver of the note, and that a mere understanding was not asufli- (y) Hob. 105. See judgment in Eastwood v. Kenyon, 11 A. & E. (39 E. C. L. E.) 438. The modern rule appears to be that where the obligation is created by the law it makes no difference whether the party bound requested the performance of the so-called consideration or not. In other cases where the party is bound because of his previous request, it would seem to be because the request was in such terms as to imply compensation for the services rendered, and here the action rests upon the promise implied in the request at the time of the services rendered, and is independent of any subsequent express promise on his part. See Turner v. Partridge, 3 P. & W. 172 ; Kenan v. Holloway, 16 Ala. 53; Ayers v. Chicago, &c., R. K., 52 Iowa, 478 ; Langdell, Summary of the Law of Contracts, U 90-98; Wharton on Contracts, § 514. 210 LECT. v.] EXECUTED CONSIDERATIONS. 196 cient consideration, there being nothing to show that the plaintiff might not, the '''moment the note was r:-:-jn7-| given, have refused to give his services (2;).^ But here arises another distinction, and it is the last to which I shall refer upon this subject ; but this is a distinction to which it is absolutely necessary to refer, in order that you may not be misled by what I have already stated. There being the rule I have just stated regarding executed considerations, namely, that an exe- cuted consideration must have arisen from a previous request by the person promising, in order that it may be sufficient to support the promise, there are certain classes of cases in which this previous request is implied, and need not be expressly proved by the person to whom the promise is given. Now the cases in which a previous request is implied are as follows. First, the case which I have already stated, in which one man is compelled to do that which another ought to have done, and was compellable to do. In this case the consideration is an executed one, for the thing must have been done before any promise can be made to reimburse the person who has done it ; but though the considera- tion is executed the law implies the request. And there- fore in this case an action may be brought for in- demnity without proving any express request on the part of the *defendant (a). In addition to the rHMOQ-i examples already given, the case of Exall v. Partridge {b) is well calculated to set this matter in a (2) Hnlse V. Hulse, 17 C. B. (84 E. C. L. R.) 711 ; 25 L. J. (C. P.) 177. (a) See judgment of Queen's Bench in Batard r. Hawes, 22 L. J. (Q. B.) 443 ; 2 E. & B. (To E. C L. R.) 287. (6) 8 T. R. 308. See also Johnson r. Royal Mail Steam Packet Co., L. R. ' The student who seeks for a more extended analysis of this subject than can be afforded in these elementary lectures, may most profitably refer to the note to Lampleigh v. Brathwaite, 1 Smith's L. C. 268, 8th Am. Ed., and that to Vadakin v. Soper, 1 Ara. L. C. 120. — R. 211 198 EXECUTED CONSIDEEATIONS. [lECT. Y. clear light. There the defendant was tenant of certain premises, and under covenant to pay rent to the land- lord for tliem. Having neglected to pay the rent, the goods of a stranger to the contract between the land- lord and tenant, which were upon tlie premises of the latter, were distrained by the landlord for the rent in arrear, and it was held that the stranger might sue the tenant for the money which he had paid in order to redeem his goods ; although it is obvious, from the state of the facts, that no request that he should do so had in fact been made by the tenant. In Grissell v. Kobinson (c) , the plaintiff had contracted to grant the defendant a lease ; the lease was prepared by their solicitor and PIOQI ^^^^"t®^* I^ ^^ ^^^® general *practice for the lessor's solicitor to prepare the lease, and for the lessee to pay the solicitor ; the lessee having refused so to do, the lessors paid him, as they might have been compelled to do; and the Court decided that an action •was maintainable by them for money paid at the lessee's request. I must further observe upon this class of cases, and also upon the next, that, not only is the request implied, but the promise also ; for, if, to put an example, A. is indebted to B. in a certain sum of money, and C. is his surety ; if C be compelled to pay, not only is a request by A. to do so implied by law, but a promise by him to indemnify C. is also implied. And, in an action 3 C. p. 38 ; 37 L. J. (C. P.) 33. In Exall v. Partridge, the goods distrained on were on the premises at tlie request of the tenant. When a stranger leaves his goods on the premises without any request, express or implied, of the ten- ant, and the stranger's goods are distrained, he cannot recover what he pays to release them from the tenant, as for money paid : England v. Marsden, L. B. 1 C. P. 529 ; 35 L. J. (C. P.) 259. (c) 3 Bing. N. C. (32 E. C.L. R) 10; V^^ebb v. Khodes, 3 Bing. N. C. (32 E. C. L. R.) 732 ; Moon v. Guardians of Witney Union, 3 Bing. N. C. (32 E. C. T.. R.) 814 ; Wilkinson v. Grant, 25 L. J. (G. P.) 233; 18 C. B. (86 E. C. L. R.) 519 ; Smith v. Clegg, 27 L. J. (Ex.) 300. 212 LECT. v.] EXECUTED CONSIDERATIONS. 199 brought by C. to enforce the indemnity, he need prove no express promise, no express request, but simply that A. was indebted to B., and that he, C, as A.'s surety, was compelled to pay that debt (d). For an example of this, you may take the common case of an accom- modation acceptor or endorser, who, as soon as he has been obliged to pay the money, may maintain an action against the person for whose accommodation he accepted or endorsed (e)} Secondly, where the person who is sought to be charged adopts and takes advantage of the benefit *of the consideration. Suppose, for instance, A. i-^.^^^-, purchases goods for B. without his sanction, B. ^ ^ J may, if he think fit, repudiate the whole transaction ; but if, instead of doing so, he receive the goods and take possession of them, the law will imply a request from him to A. to purchase them, and will also imply a promise by him to repay A., and he will be liable in an (c/) Pawle V. Gunn, 4 Bing. N. C. (63 E. C. L. E.) 445; Jones v. Orchard, 24 L. J. (C. P.) 229 ; 16 C. B. (81 E. C. L. K.) 614. {e) Driver v. Burton, 21 L. J. (Q. B.) 157 ; 17 Q. B. (79 E. C. L. E.) 989. ' This principle is well illustrated by the case of Draughan v. Bunting, 9 Ired. 13, where the plaintiff, who had endorsed and been compelled to pay a promissory note, relied in an action against a prior endorser, on a parol promise of indemnity given to liim by the maker at the time of the endorsement. The court held it clear that the action could not be sustained on the parol promise, because being one " to answer for tlie debt or the default of another," it came within the Statute of Frauds, and should therefore be in writing, but that the law implied a promise to indemnify from the relation of suretyship, upon which the plaintiff might have recovered, but for the following circumstance : the plaintiff, in order to prove this parol promise, had called the maker of the note as a witness, and had been obliged to execute a release to him, in order to re- stoi'e his competency, and it was urged that this release to the principal dis- charged the surety, which wa.s undoubtedly correct, as the Court held: but it being also in evidence that the defendant had acknowledged the receipt of funds from the maker, wherewith to discharge the debt, it was held that a prorais*' was implied thus to apply the money, and the plaintiff was held entitled to recover upon his count for money paid. — b. 213 200 EXECUTED CONSIDERATIONS. [lECT. Y. action for money paid to his use, founded on that im- | plied promise (/). The cases where goods have been supplied to children without the knowledge or express request of the father, are illustrations of this rule. Even where the goods supplied are necessaries, some recogni- tion amounting to adoption is requisite, in order to render the father liable, and to suj^port the implied re- quest and promise ; in such case it has often been con- sidered sufficient that the father should have seen them worn by the child without objection [g). See 1 Wms. Saund. 264, note 1, where you may, if you please, find a great deal of valuable information upon the whole subject of which I am now treating.^ It is obvious that the same rule will apply where one man does work for another without his request, as when he purchases or supplies goods for him. But suppose such a case as this : I do valuable work on your property without your ^'knowledge, have I a claim on you for pay- '- -I ment ? " How can you help it ? One cleans another's shoes, what can the other do but put them on? Is that evidence of a contract to pay for the cleaning ? The benefit of the service could not be rejected without refusing the property itself." Adoption, and taking advantage of the benefit of the consideration may be such recognition or acceptance of services as may be sufficient to show an implied contract to pay for them, if, at the time, the defendant had power to accept or refuse it. (/) See Coles v. Bulman, 6 C. B. (60 E. C. L. E.) 184. ((/) Law V. Wilkin, 6 A. & E. (33 E. C. L. E.) 718. See Mortimore v. Wright, 6 M. & W. 482; Linnegar v. Hodd, 5 C. B. (57 E. C. L. E.) 437. ^ Instances of the application of this rule will be found in Pawle v. Gunn, 4 Bing. N. C. (33 E. C. L. E ) 445; Derby v. Wilson, 14 Johns. 378 ; Eowntree v, Holloway, 13 Ala. 357 ; Kenan v. HoUoway, 16 lb. 58 ; Guerard v. Jenkins, 1 Stiob. 171.— B. 214 LECT. v.] EXECUTED CONSIDERATIONS. 201 Without such power, acceptance of the service is no evidence of a promise to pay for it {h)} The thii'd case, in which a request is implied, is that in wliich a person does, without compulsion, that which the person sought to be charged was compellable by law to do. Suppose, for instance, A. owes B. £50, and C. pays it : now here, if A. promise to repay C, it will be implied that the payment by C. was made at his re- quest [i). But, in this class of cases, you will observe, though the request is implied where there is a promise, yet the promise must be express, for the law will not im- ply one, as in the two last cases {k) : thus, if A. is B.'s *surety, and is forced to pay his debt, the law p^onoi Implies a request to pay it, and a promise to ^ -^ repay. If he be not B.'s surety, but pays it of his own accord, the law implies neither promise nor request, for a man cannot make me his debtor by paying money for me against my will.^ Yet, even in this case, if B. expressly promise to repay it, a request by him to pay it is implied, for it is a maxim (h) Taylor v. Laird, 25 L. J. (Ex.) 332, Pollock, C. B. ; Boulton i'. Jones, 27 L. J. (Ex.) 117. See British Empire Shipping Company v. James, 27 L. J. (Q. B.) 397 ; confirmed in House of Lords, 30 L. J. (Q. B.) 229. (i) Wing V. Mill, 1 B. & Aid. lOi. {k) Atkins v. Banwell, 2 East, 505 ; Eex v. Oldland, 4 A. & E. (31 E. C. L. R.) 929. ^ Implied contract to pay for services may be rebutted by proof of relation- ship: Smith V. Milligan, 43 Pa. St. 107; Duffey v. Duffey, 44 lb. 399; Hart- man's Appeal, 3 Grant, 271 ; Ame/s Appeal, 49 Pa. St. 126 ; Butler v. Slam, 50 lb. 456 ; Danbenspeck v. Powers, 32 Ind. 42. It is a general rule that when a child continues with the parent after coming of age no express contract for wages being shown, the presumption is that no wages are to be paid, but this presumption may be rebutted: Adams w. Adams' Adm'rs, 23 Ind. 190; Hart V. Hess, 41 Mo. 441. — s. « Durnford v. Messiter, 5 M. & S. 445 ; "Weakly v. Braham, 2 Stew. 500 ; Keenan v. HoIIoway, supra; Lewis v. Lewis, 3 Strobh. 532 ; Mathews v. Col- borne, 1 lb. 258 ; Young v. Dribbell, 7 Humph, 270. — B. 215 202 EXECUTED CONSIDERATIONS. [lECT. V. that omnis ratihabitio retrotrahitur et mandato cequi- paratur} 111 the three cases I have just put, the law implies a request, on the part of the person sought to be charged, to do that which is relied on as the consideration for the promise upon which it is sought to charge him.^ ^ Windsor v. Savage, 9 Mete. 348 ; Lewis v. Lewis, S Strobh. 530 ; 1 Saund. 264, n.— R. A voluntary payment of money by one person for the use of another with- out a previous request, will not support a subsequent promise to refund, unless the payment is beneficial to the promisor: Kenan v. Holloway, 16 Ala. 53. See Turner v. Partridge, 3 P. & W. 172. * The salutary legal principle whioJi lies at the bottom of all the cases upon this subject is, that every legal liability must spring from something actually done, and not from something merely said. From this, it is easy to perceive how it is, that from certain acts the law will imply a promise, which shall be 60 highly regarded that an express promise shall not be allowed to vary it (Hopkins v. Logan, &c., infra), and while at the same time it will disregard the most solemn verbal undertaking that does not spring from some actual transaction. Hence it is, that a warranty after a sale cannot be enforced, nnless something new be done at the time of giving the warranty, for the promise stands upon words and not upon acts: Roscorla v. Thomas, infra ; Hogins v. Plympton, 11 Pick. 97; Williams v. Hathaway, 19 Pick. 387 ; Bloas r. Kit- tridge, 5 Vt. 28. In like manner, an undertaking by a landlord for his ten- ant's quiet enjoyment, is, when made after the contract of tenancy has been entered into, wholly ineffectual for any purpose : Granger v. Collins, 6 M. & W. 458. So, after a bargain has been made, a naked promise to pay more or take less than the contract price, is useless to the party receiving it : Geer v Archer, 2 Barb. 420; Williams ». Hathaway, 19 Pick. 387. And the reaso» of these cases is obvious, from the danger which would arise if mere conversa- tions, unsupported by acts, Avere allowed to go to a jury, as evidence fron? which they might mould them into contracts. Hence, too, arises an important class of cases, which determine that a precedent debt cannot, of itself, form a sufficient consideration for a promise, for such a debt arises from a contract already fulfilled, and therefore comes within the legal principle just stated: Hopkins v- Logan, 5 M. «& W. 241 ; Vadakin v. Soper, 1 Aik. 287 ; Rus«ell v. Buck, 11 Vt. 176; Barker v. Bucklin, 2 Den. 59; Eaiiroad Co. v. Johnson, 7 "W- & S. 317-328; Jackson v. Jackson, 7 Ala. 791 ; although, when snch a promise is cotemporaneous with an actual transaction, such as a suspension, or an extinguishment of the precedent debt, the acquisition of an additional security for its payment, the commencement of a new course of dealing, or the like, it will be enforced by law, for it does not rest on mere words : Peate ti. Dicken, 1 Cr., M. & R. 423; Wilson v. Coupland, 5 B. & Aid (7 E. C. L. R.) 228; Clark v. Sigourney, 17 Conn. 511; Phillips v. Bergen, 2 Bai-b. 608; 216 LECT. v.] MORAL CONSIDERATIONS. 202 There is a fourth class of cases, in which the con- sideration relied on has been that one man has done for Smith V. Weed, 20 Wend. 184 ; Weld v. Nichols, 17 Pick. 588 ; Taylor v. Meek, 4 Blackf. 388. The sound reasons for what would at first appear to be a pertinacious ad- herence to a narrow rule, are thus expressed by Mr. Hare, after a review of the authorities, in the note to Vadakin v. Soper, 2 Am L. C. " The general principle," said he, " which requires that every express contract shall be sus- tained by a cotemporaneous consideration, is, in effect, a rule of evidence of great importance, to the exclusion of fraud and misrepresentation from the tribunals of justice. If a mere verbal promise, without consideration, were sufficient to create a legal liability and sustain an action, no safety could be found against the misrepresentation of the most ordinary conversation, unless in the sagacity of the jury called to determine (perchance on a prejudice or false relation), whether it was meant or understood as a positive obligation for the payment of money, or the fulfilment of an engagement of any other de- scription. And if a past consideration were sufficient to give such an engage- ment validity, the danger would be as great ; for men, though but little dis- posed to promise further compensation for past services in their own case, are sufficiently ready to believe such an allegation in that of another, especially if supported by any plausible pretence, that the amount originally bargained for was insufficient. The chance of an erroneous verdict would be still greater in those instances, in which a bargain has resulted disadvantageously for one of the parties, and where he has induced the other to hold any language which can be construed or perverted into a promise of indemnification. The neces- sity for proving the existence of a cotemporaneous consideration, obviates this danger, by bringing the evidence back from words to things, which are not so easily susceptible of mistake or falsification. The uncertainty which results from looking to the subsequent language of a party, as the test of his liability, has been found so great in the cases arising under the Statute of Limitations, as to lead to the introduction, in England, and some parts of this country, of legislative enactments, making it necessary that the acknowledg- ment of the debt shall be in writing, and not be proved by mere verbal testi- mony. Yet in that ca.se, the only eflfect of the evidence is to revive an an- terior liability, of which the original existence is proved aliunde, and it is therefore easy to imagine what would be the result if every transaction of human life were open to the interpretation which a witness or jury might choose to give to any subsequent conversation of which it is made the subject. It would, therefore, appear that the rules of the common law with respect to consideration, so far from deserving the reproach of narrowness and illiberal- ity which has been sometimes cast upon them, are really founded upon a just appreciation of the uncertainty of testimony, and the exigencies of life, and should be sedulously upheld and applied, and not explained away or disre- garded. It may safely be asserted that they do more to prevent fraud and per- jury than any legislative enactment which has been, or can be devised for that purpose, and that if they had not been laid down and defined by jutlicial sagacity, it would be necessary to introduce them by legislative authority." 217 202 MOEAL COIfSIDEEATIONS. [lECT. V. another something which that other, though not legally, is morally bound to do. In such cases it is clear, that, if there be no express promise to remunerate him, re- muneration cannot be enforced. But it has been a great question, and has been frequently discussed, whether, even if there be an express promise, any re- quest can be implied in order to support the considera- tion. On this question, which is but a branch of one which has been often the subject of anxious considera- tion, namely, in what cases a moral obligation is a suffi- cient consideration to support a promise, it is worth while to read the cases cited in the *note (/). L ^ oj jg^^ j^ ^^^ T^^ considered as now settled, that a merely moral consideration will not support a prom- ' {I) Lee V. Muggeridge, o Taunt. (1 E. C. L. R.) 36 ; Atkins v. Bauwell, 2 East, 505 ; and the note to Wennall v. Adney, 3 B. & P. 247. It is necessary to distinguish the class of cases referred to, from those which decide that a promise to pay a debt barred by tlie Statutes of Bankruptcy or Limitation is based upon sufficient consideration. Some expressions in the cases would seem to conliict with the general principle just referred to, but in reality the grounds of the decision are in harmony. The promise of a debtor to pay a debt so barred, although it is often called a new promise, is in reality rather a waiver of the bar which the statute has interposed. In pleading, it is sufficient to count on the original debt, and when the statute is pleaded, the evidence offered under the replication of a new promise or acknowledgment within six years, forms no variance between the declaration and the proof, for whether the defendant is liable by reason of the original consideration for the debt, or by reason of his subsequent acknowledgment, is immaterial, provided the plaintiff prove the original consideration, and the liability at the time of. suit brought, and if that liability arises from the new promise, it is just such a liability as the law implies from the old consideration, and hence the new promise accords with the old one, and there is no variance. This will be found fully explained in the note to Whitcomb v. Whiting, 1 Smith's L. C. 621, 8th Am. ed. But in the ordinary case of a precedent debt, a declaration setting forth that the plaintiff had contracted to build a wagon for $100, and that having done so, the defendant, in consideration thereof, promised to pay him ?200, would be clearly bad, for such a promise would not be implied by iaw from the old consideration, which was the only one. So, in the case of an indebtedness to two persons jointly, a promise by the debtor, in consideration of the promise, to pay one-half of the debt to one of them, could not be en- forced, for it is not such a promise as the law implies from the old considera- tion, and this was the case of Vadakin v. Soper, supra. — K. 218 LECT. v.] MORAL CONSIDERATIOIS'S. 203 ise {m). A mere moral consideration has been said by high authority to be nothing in law {n). "A subsequent express promise," said Tindal, 0. J., " will not convert into a debt that which of itself was not a legal debt" (o). And the Court of Queen's Bench, in the case of East- wood V. Kenyon (p), quotes with approval the conclu- sion arrived at in the note to Wennall v. Adney just cited, " that an express promise can only revive a pre- cedent good consideration, which might have been en- ■forced at law through the medium of an implied prom- ise, had it not been suspended by some positive rule of law ; but can give no original cause of action, if the ob- ligation on which it is founded never could have been enforced at law, though not barred by any legal maxim or statute provision " {q) } This principle may be illus- (wi) Monkman % Shepherdson, 11 A. & E. (39 E. C. L. E) 415 ; Beaumont V. Reeve, 8 Q. B. (55 E. C. L. E.) 483. See Hicks v. Gregory, 8 C. B. (G5 E, C. L. E.) 378. («) Jennings r. Brown, 9 M. & W. 501. (o) Kaye v. Button, 7 M. & Gr. (49 E. C. L. E.) 807. ip) 11 A. & E. (39 E. C. L. E.) 438, 447 ; Deacon v. Gridley, 24 L. J. (C. P.) 17 ; 15 C. B. (80 E. C. L. E.) 295. {q) See also Flight v. Eeed, 1 H. & C. 703, 32 L. J. (Ex.) 265, for an illus- tration of this rule. ^ In some of the earlier American cases, there were many dicta and a few decisions in favour of a moral consideration heing sufEcient to support a promise: Greeves v. McAllister, 2 Binn. 591 ; Willing v. Peters, 12 S. & E. 177; Doty -y. Wilson, 14 Johns. 378; but these cases, like the English deci- sions in Lee v. Muggeridge, and Wing v. Mill, 1 B. & Aid. 104, were subse- quently expressly overruled by Snevily v. Eead, 9 Watts, 396 ; Kennedy v. W^are, 1 Pa. St. 445 ; Mills v. "VVyman, 3 Pick. 207 ; Beaumont v. Eeeve, 8 Q. B. (55 E. C. L. E.) 483 ; Cook v. Bradley, 7 Conn. 57 ; Loomis v. Newhall, 15 Pick. 159 ; Dodge v. Adams, 19 lb. 429 ; Kinnerly v. Morton, 8 Mo. 698 ; Kenan V. HoUoway, 16 Ala. 58 ; and such a doctrine may, perhaps, be now fairly con- sidered as having no established place in the jurisprudence of either country. — r. See EUicott v. Peterson, 4 ]\rd. 476 ; Womack v. Womack, 8 Tex. 397 ; Tur- ner V. Chrisraan, 20 Ohio, 332 ; M'Farland v. Mathis, 10 Ark. 560 ; Nash. v. Russell, 5 Barb. 556; Watkins v. Halstead, 2 Sand. 311; Geer v. Archer, 2 Barb. 420 ; M'Kinley v. O'Keson, 5 Pa. St. 369. There would appear, how- 219 203 MORAL CONSIDERATIONS. [lECT. V trated by the case of a debt barred by tbe Statute of Limitations, a promise to pay which, if duly made, ever, to be authority for an important exception to the general principle that a moral obligation is not a sufficient consideration. Wherever an actual benefit has been enjoyed from the unsolicited services of another, it is a suffi- cient foundation for an express promise, although no promise will be implied. Thus, an uncompleted contract on a railroad was assigned by the contractor for the benefit of creditors. There was in the hands of the railroad company a fund consisting of retained percentage, the assignor's right to which depended upon the completion of the contract. The assignor made a contract with the plaintiff" that he should complete the contract at his own expense, and receive a certain compensation. The creditors, for whose benefit the assignment had been made, drew an order on the assignee in favour of plaintiflT, for the amount expended by him on the work, and for a certain sum for his trouble. It was held that the work having been completed by the plaintiflT, the order became irrevocable, whether drawn before or after performance of the work. And one of the creditors receiving a dividend out of the fund from the assignee, is liable to the plaintiff in an action for money had and received : Cunningham V. Garvin, 10 Pa. St. 366. Bell, J.: "If it be admitted that the order was made after the completion of the work, we have a case of a past consideration flowing from a benefit conferred. Kow, though anciently this was thought inadequate to support a present promise to pay, it has long been settled that a benefit derived from the unsolicited services of another, creates a moral obli- gation of sufficient potency to sustain an express promise." On the other hand, where a grandfather devised to his grandson a tract of land, which, by his will, he directed should be patented, and the price thereof paid out of his estate, an uncle of the devisee's obtained the patent and paid for it, and brought an action against the executors of the grandfather's estate to recover it back ; it was decided that it was a voluntary payment by him which gave no right of action : Turner v. Patridge, 3 P. & W. 172. Gibson, C. J.: "In procuring the patent without compulsion of the law, or request of the party interested, the plaintiff laid the defendants under a moral obligation, which, though sufficient as a consideration for an express promise, raised no promise by implication of law :" Baker v. Gregory, 28 Ala. 544. Taxes were paid through mistake by one not the owner, and the owner promised to repay. The promise and benefit were held equivalent to a previous request : Nixon v. Jenkins, 1 Hilt. 318. When one partner purchases of his copartner his interest in the partnership property, under a mistake as to the true condition of the partnership accounts, but without fraud in the partner selling, there is no legal consideration for a promise of the latter to make up the amount of the mistake. The moral consideration is insufficient : Eakin v. Fenton, 15 Ind. 69. It is a general but not a universal rule that a moral obligation is a suffi- cient consideration to uphold an express promise : Montgomery v. Lampton, 3 Mete. (Ky.) 519. An express promise to pay for past expenditures made by a third person for a parent is not bindirig on the child for want of con- sideration : Dawson v. Dawson, 12 Iowa, 512. A mere moral obligation con- stitutes no legal consideration for a contract : Updike v. True, 13 N. J. Eq. 220 LECT. V.J CONSIDERATIOIS'. 204 *as we shall see hereafter, takes the debt out of p.:.^^- .-, the protection of the statute and makes the "- -• debtor hable (r). I have now said what I intended to say with regard to the sufficiency of the consideration, and the result may be thus summed up : — Any advantage to tlie person promising, or damage, inconvenience, liability, or cliarge to the person to whom the promise is made, constitutes a sufficient con- sideration to uphold a promise ; but, if tliat considera- tion be executed, that is, if, at the time of making the promise, that which is to be the consideration for it has already taken place, in such case there must have been a request by the person promising, in order to render (r) It seems, however, not to be illustrated in the case of a debt released by a discharge in bankruptcy ; for it has been held on the construction of s. 49 of the now repealed Bankruptcy Act of 18C9 (32 & 33 Vict. c. 71), that, when a debt has been released by an order of discharge under that section, a subse- quent promise to pay cannot be enforced ( Heather v. Webb, 2 C. P. D. 1 ; 46 L. J. (Q. B. etc.) 89j ; unless it is founded on a new and valuable considera- tion (Jakeman v. Cook, 4 Ex. Div. 26; 48 L.J. (Q. B., etc.) 165); and this would seem to be still the law under the corresponding section of the Bank- ruptcy Act of 1883 (46 & 47 Vict. c. 52), viz., s. 30, which in this respect seems undistinguishable from s. 49 of the old Act. 351 ; Shepard v. Rhodes, 7 R. 1.470. The moral obligation of the original contract is a sufficient consideration for a promise to perform it made within the time limited by the statute, and such a promise will remove the bar of the Statute of Limitations: Pritchard v. Howell, 1 Wis. 131. Where there is a precedent duty, which would create a sufficient legal or equitable right if there had been an express promise at the time, or where there is a precedent consideration which is capable of being enforced, and is not extinguished, unless at the option of the party, founded upon some defence which the law justilies but does not require him to assert, an express promise will create or revive a just cause of action. So if a contract is voidable, but founded on a consifleration otherwise valuable, an express promise will support it: but not if it is originally void. A promise hy a woman who is sole to pay a debt contracted while she was covert will not be valid, because such contract is ab oricf-ine void, and not voidable : Porterfield v. Butler, 47 Miss. 165 ; and see Shepard v. Rhodes, 7 R. I. 470 ; Musser v. Ferguson, 55 Pa. St. 475 ; Cobb r. Cowdery, 40 Vt. 25 ; Seymour v. Marlboro, lb. 171.— s. 221 204 PROMISE. [lect. v. such a consideration sufficient. If an express request can be shown, there can be no difficulty ; but, if not, the law will imply one in certain cases, and those cases are — r*9n^'l ^^^^' Where the consideration consists in the person to whom the promise is made being compelled to do that which the person making it ought to have done, and was compellable to do. 2ndly. Where the consideration consists in something the benefit of which the person promising has adopted and enjoyed. 3rdly. Where the consideration consists in the person to whom the promise is made having voluntarily done that which the person promising ought to have done, and was compellable to do, in which third case the promise must be an express one, wdiereas in the two former the law implies the promise as well as the request. The remaining part of a contract is the promise, as to which the law in general leaves to the will of the parties this part of their mutual arrangement. Indeed, this has almost been said already in other words ; for, where it is laid down that the law will not weigh the adequacy of the consideration (s), it is implied that it will not weigh that of the promise. The law, however, will no more enforce an illegal promise than an illegal consideration ; but in cases of executed contracts there is a rule of law which is well worthy of attention. It is, that where the law r*9nri i^""?^!^^ ^ certain promise *from a consideration executed — that consideration will not support any other promise than the one which the law im- plies {t). It is not difficult to see that this rule results («) Ante, p. *176 (0 Elderson v. Emmens, 6 C. B. (60 E. C, L. E.) 160, in Exchequer Chamber. 222 LECT. v.] PROMISE. 206 from tlie principle which requires that every promise should be supported by a consideration ; for, when the consideration in question is one from which the law im- plies a certain promise, that promise evidently exhausts the consideration, and there is nothing left to suj^port any other promise. Such promise, consequently, how- ever expressly made, is nudum pactum. Thus, it has been decided (u), that an account stated and a sum thereupon found to be due to the plaintiff from which the law implies a promise to pay in prcesenti, will not support a promise to pay in fuiuro ; and each of the Judges {v) said, that, in order to render the promisor liable to pay on a future day, there ought to be some new consideration. Similar in principle to the instance just mentioned is the case, where one, having become tenant to another of a farm, undertook to make a certain quantity of fallow, to spend £60 worth of manure yearly thereon, and to keep the buildings in repair : an under- taking which was considered unavailable *in r^oA/j-i law because no other consideration existed but the foct that the relation of landlord and tenant had been created between the parties, and the obligations sought to be enforced are not implied by law from that mere fact {x). The promise, as the Court of Exchequer said in a subsequent and closely analogous case (?/), is laid more largely than the law will imply from such a relation. Another instance of the sanie principle, drawn from a different class of cases, is afforded by the case of (m) Hopkins v. Logan, 5 M. & W. 241 ; Granger r. Collins, 6 M. & W. 458 ; Eoscorla r. Thomas, 3 Q. B. (43 E. C. L. R.) 234. See Walker v. Eostron, 9 M. & W. 411 ; and 1 Smith, L. C. 163, 8th ed. (v) Lord Abinger, C. B., and Parke, Alderson, and Mavle, B.B., in Hopkins v. ivOgan, supra, [x) Brown v. Crump, 1 Marsh. 567. iy^ Granger v. Collins, 6 M. & W. 458 ; Jackson v. Cobbin, 8 M. & W. 790. 223 207 ILLEGAL CONTEACTS. [lECT. Y. Koscorlii V. Thomas (z), in which the declaration alleged that, in consideration that the plaintiff had bouglit a horse of the defendant at a certain price, the defendant promised that it did not exceed five years old, and was sound and free from vice ; and the plaintiff having obtained a verdict, the Court arrested the judgment, be- cause the only promise which could be implied from the consideration was to deliver the horse upon request; and, therefore, however expressly the promise alleged might have been made, the consideration would not support it. Proceeding in the order in which I stated to you that it was my intention to proceed, the next subject at which we arrive is, the effect of illegality u^^on the contract. r*9nm ^nd, upon this subject, I have ^already said generally, that every contract, be it by deed, or be it without deed, is void if.it stipulate for the perform- ance of an illegal act, or if it be founded upon an illegal consideration. Ex turpi causa non oritur actio is the maxim of our law, as well as of the civil.^ A deed, for (2) 3 Q. B. (43 E. C. L. K.) 234. ^ [Note by Mr. J. C. Symons.] It is immaterial whether the illegality be part of or only intoductory to the cause of action ; if the plaintiff requires any aid from an illegal transaction to make out his case, he cannot maintain it: Simpson v. Bloss, 7 Taunt. (2 E. C. L. R.) 246 ; [Scott v. Duffy, 15 Pa. St. 18 ; Deering v. Chapman, 22 Me. 448.] This rule was upheld in the very recent case of Fivaz v. Nicholls, 15 L. J. 125, C. P. [2 C. B. (52 E. C. L. R.) 500,] where the plaintiff brought an action on the case against the defendant for having corruptly conspired to cheat the plaintiff, and deprive him of his costs in a previous action on a bill of exchange, in which the plaintiff obtained judgment on the ground that it was given for an illegal consideration ; but it having appeared that the bill had been originally endorsed by the plaintiff to the defendant to compromise a felony, this illegality being the foundation of the subsequent action, was held to invalidate it. [And to the same effect are Bridge v. Hubbard, 15 Mass. 96; Tuthill v. Davis, 20 Johns. 287 ; Edwards v. Skirving, 1 Brev. 548 ; Coulter v. Robertson, 14 Sm. & M. 29, where the illegality of the original consideration was held to taint all the subsequent securities flowing from it. — K.] It is well settled that i-n reference to all acts or contracts, which are unlaw- ful on account of their immorality or their tendency to promote it, or because they are hostile to public policy, the parties thereto are in pari delicto. So, 224 LECT. Y.] ILLEGAL CONTRACTS. 208 the purpose of charging the maker, requires, as we have seen, no consideration at all to support it ; but an illegal consideration is worse than none, and if it be founded upon such an one, it will be void, nor will the rules re- lating to estoppel prevent the party from setting that defence up. A simple contract requires, as we have seen, a consideration to support it. If the consideration be illegal, it is a fortiori void ; nor will the rules which I endeavoured to explain regarding the inadmissibility of parol evidence to contradict a writing, prevent that defence from being set up where the illegality does not appear on the face of the instrument, any more than the doctrine of estoppel will avail to prevent inquiry into the true consideration for a deed. Parties cannot de- ceive the law by the form of their contracts ; and, as an illegality in the consideration is fatal, so, and upon the very same grounds, is one in the promise. " You shall not,'^ says the L. C. J., in Collins v. Blantern (a), "stipu- late for iniquity J^^ (a) 2 Wils. 341, 1 Smith, L. C. 387, 8th ed. See ante, p. *18, where this sub- ject is partially treated of. money paid or land conveyed on an immoral contract, cannot be recovered back : White v. Hunter, 23 N. H. 128. Every new agreement entered into for the purpose of carrying into efTect any of the unexecuted provisions of a previous illegal contract is void : Gray v. Hook-, 4 N. Y. 449. When money due on an illegal contract is paid to an agent of one of the parties, such agent being no party in interest to the illegal contract, cannot set up the illegality as against the claim of his principal : Evans v. Trenton, 24 N. J. 764. Vv'here an obligor sued on his bond, which exhibits no evidence of fraud, interposes, by way of defence, a fraudulent agreement between him- self and the obligee, he becomes the actor ; and the maxim in pari delicto melior est conditio possidentis aut defendentis, is applied against him and not in his favor : Hendrickson v. Evans, 25 Pa. St. 441 . A party to an illegal contract will not be permitted to avail himself of its illegality, until he restores to the other party all that had been received from him on such illegal contract : Hunt V. Turner, 9 Tex. 385. And see also Jones v. Davidson, 2 Sneed, 447 ; Gibson v. Pearsall, 1 E. D. Sm. 90 ; Bates v. Watson, 1 Sneed, 376 ; Schermer- horn V. Talman, 14 N. Y. 93 ; Tracy v. Talmage, lb. 162.— s. ' Where an entire agreement contains an element which is legal and one 15 225 208 ILLEGAL CONTEACTS. [lECT. V. If the consideration be legal, a promise to do several acts, some illegal and some legal, renders *the •- -' contract void as to the illegal acts ; but if any part of the consideration be illegal, the whole contract fails (b)} Now illegality is of two sorts : it exists at common law, or is created by some statute. A contract illegal at common law is so on one of three grounds : either because it violates morality ; or because it is opposed to the policy of the law ; or because it is tainted with fraud. Of the first class, — those, namely, which are void be- cause they violate the principles of morality — you will find an example in the case of Fores v. Johnes (c), in which Mr. Justice Lawrence held, that a printseller could not recover the price of libellous publications which he had sold and delivered to the defendant. " For prints," said his Lordship, " whose objects are (6) Ante, p. *20. See also Harrington v. Victoria Graving Dock Co., 3 Q. B. D. 549 ; 47 L. J. (Q. B.) 594. (c) 4 Esp. 97. which is against public policy and therefore void, the legal consideration cannot be separated from that which is illegal so as to found an action on it : Boss v. Truax, 21 Barb. 361 ; Pettit v. Pettit, 32 Ala. 288 ; Collins v. Merrell, 2 Mete. (Ky.) 163; Valentine v. Stewart, 15 Cal. 387 ; Gelpcke ». Dubuque, 1 Wall. 221.— s. ^See ante, p. *20, note 1. When the consideration is indivisible, and is illegal, the contract is void. But when the Court can divide the consideration, it may be possible to reject what is illegal, and yet to support tlie promise upon that part which is valid. As, for example, where a part of the con- sideration failed as falling within the Statute of Frauds, but the remainder was held sufficient to uphold the contract : Mayfield v. W^adsley, 3 B. & C. (10 E. C. L. R.) 361. AVhere there are several amsiderations, and some are illegal, these may be disregarded as merely cumulative grounds for the promise, which rests upon the valid considerations : Jones v. W^aite, 1 Bing. N. C. (27 E. C. L. R.) 341 ; Shackell v. Rosier, 2 Bing. N. C. (29 E. C. L. R.) 646; King v. Sears, 2 C. M. & E. 48 ; Crookshank v. Rose, 5 C. & P. (24 E. C. L. R.) 19, Andrews v. Ives, 3 Conn. 368 ; Loomis v. Newhall, 15 Pick. 159 ; Treadwell v. Davis, 34 Cal. 601 ; Goodwin v. Clark, 65 Me. 280. 226 I LECT. v.] ILLEGAL CONTRACTS. 209 general satire or ridicule of prevailing fashions or man- ners, I think the plaintiff may recover ; but I cannot permit him to do so for such whose tendency is immoral, nor for such as are libels on individuals, and for which the plaintiff might be rendered criminally answerable for a libel." ^ For tliis reason the printer of an immoral and libel- lous work cannot maintain an action for the price of 'So it was held that the printer of the "Memoirs of Harriet Wilson" could not recover the price of printing them, the work being immoral and libellous: Poplett v. Stockdale, 2 C. & P. (12 E. C. L. R.) 198. Nothing is better settled than that a promise in consideration of future illicit cohabitation is void : Walker v. Perkins, 3 Burr. 1568 ; Rex v. Inhabi- tants of Withringfield, 1 B. & Ad. (20 E. C. L. R.) 912; Winnebrun v. Weisi- ger, 3 Mon. 35 ; Travinger v. M'Burney, 5 Cow. 253 ; and it is immaterial whether such promise be or be not backed by the solemnity of a seal : Walker V. Perkins. But where the sealed instrument is given in consideration of past seduction or cohabitation, it will be enforced : Turner v. Vaughan, 2 Wils. 339 ; Wye V. Mosely, 6 B. & C. (13 E. C. L. R.) 133; while a parol promise, based npon such a consideration, is worthless : Beaumont v. Reeve, 8 Q. B. (55 E. C. L. R.) 483; Singleton v. Bremar, Harp. 201. The distinction between these classes of cases is this : all contracts, whether sealed or parol, based upon future immoral connection, are void, because to enforce them would be to offer a premium for future immorality. And all parol contracts in consideration of past connection are void, on the simple ground of the consideration being exe- cuted, and the transaction not being such, as according to the rules already explained, the law would imphj a promise to pay for. But a specialty given for past connection can be enforced, because there is a consideration, viz., that im- ported by the seal, and as regards the immorality, the injury having been al- ready done, there is no principle of law that forbids its being remedied, and it has been latterly held that even if the connection be continued after the giving of the bond, that will not vitiate the instrument, if such continuance did not enter into the transaction : Hall v. Palmer, 3 Hare, 532 ; and in a trial at Nisi Prius, Best, C. J., left it to the jury to determine, whether at the time of giving such bond, the continuance of the connection formed part of the transaction, for if it did, the obligee could not recover ; if it did not, there was nothing in the transaction prohibited by the law : Friend v. Harrison, 2 C. &P. (12E. C.L. R.) 584. There is a class of cases which determine that promises in consideration of a forbearance or compromise of a prosecution for bastardy, can be enforced : Haven v. Hobbs, 1 Vt. 238 ; Halcomb v. Stimpson, 8 lb. 141 ; Robinson r. Crenshaw, 2 Stew. & P. 276; Maurer v. Mitchell, 9 W. &S. 71; and these cases proceed upon the ground of the prosecutions being rather civil in llieii character. — K. 227 209 ILLEGAL CONTRACTS. [lECT. V. his labour against the j^ublisher who employed him. "I have no hesitation," said Best^ *C. J., "in L J declaring that no person who has contributed his assistance to the publication of such a work can re- cover in a Court of Justice any compensation for the labour so bestowed. The person who lends himself to the violation of the public morals and laws of the country, shall not have the assistance of those laws to carry into execution such a purpose. It would be strange if a man could maintain an action at law for doing that for which he could be fined and imprisoned. Every one who gives his aid to such a work, though as a servant, is responsible for the mischief of it"(^). Upon these and similar reasonings, it has been held, that the first publisher of a libellous or immoral work cannot maintain an action against any person for pub- lishing a pirated edition (e). Nor will an injunction be granted to restrain the piracy on the application of the author or publisher, the general rule of Equity having been not to give relief of this kind except where a Court of Law gave damages (/). And where the plain- tiff, a printer, having agreed to print for tlie defendant a work which was to contain a dedication to be thereafter sent him, printed the work and also the dedication, but on the latter being returned to him revised, discovered for the first time that it contained libellous matter, whereupon he refused to continue the printing of it : it was held, *that the dedication being libellous, L J the plaintiff was justified in refusing to publish it, and was entitled to recover the expense of printing the body of the work from the defendant, who had re- fused to accept or pay for the work without the dedica- (d) Poplett V. Stockdale, E. & M. 337. (e) Stockdale v. Onwhyn, 5 B. & C. (11 E. C. L. R.) 173. (/) Walcot V. Walker, 7 Ves. 1. 228 LECT. v.] ILLEGAL CONTRACTS. 211 tion {g). And, more recently, where the defendant contracted to let rooms to the plaintiff, but afterwards discovering that they were intended to be used for the delivery of lectures of a blasphemous character, refused to allow the use of the rooms : it was held, that he was justified in his refusal, as the contract was illegal, and could not therefore be enforced at law {h). A large proportion of the examples of the application of this rule afforded by the books is, where illicit co- habitation or seduction has been brought forward as th<=» consideration of the contract. These, if intended to be future, are illegal considerations (i);^ if already past, they are, as formerly explained, no consideration at all ijc). Even the supplying lodgings or clothing (Z), or a carriage to *a prostitute for the purpose of rn^oin-i enabling her to carry on her practices, is illegal, and the creditor cannot recover the price (m). Again, to quote the words of Cockburn, C. J., in Harrington v. Victoria Graving Dock Co. {n) , " when a bribe is given, or a promise of a bribe is made, to a person in the employ of another by some one who has contracted, or is about to contract, with the employer, with a view to inducing the person employed to act otherwise than with loyalty and fidelity to his employer, (^) Clay V. Yates, 25 L. J. (Ex.) 237 ; 1 H. & N. 73. \h) Cowan V. Milbourn, L. R. 2 Ex. 230 ; 36 L. J. (Ex.) 124. {i) Walker v. Perkins, 3 Burr. 1568. {k) Bridges V. Fisher, 23 L. J. (Q. B.) 276; 3 E. & B. (77 E. C. L. R.) 642 ; Beaumont r. Reeve, 8 Q. B. (55 E. C. L. R.) 483. {I) Girardy v. Richardson, 1 Esp. 13; Jennings v. Throgmorton, R. & M. (21 E. C. L. R.) 251 ; Bowery v. Bennet, 1 Camp. 348. See Feret v. Hill, 23 L. J. (C. P.) 185 ; 15 C. B. (80 E. C. L. R.) 207. See also Smith v. White, L. R. 1 Eq. 626 ; 35 L. J. (Ch.) 454; Taylor v. Chester, L. R. 4 Q. B. 309 ; 33 L. J. (Q. B.) 225. (m) Pearce v. Brookes, 35 L. J. (Ex.) 134; L. R. 1 Ex. 213. (tj) 3 Q. B. D. 549, 551 ; 47 L. J. (Q. B.) 594, 595. See also Smith t-. Sorby, 3 Q. B. D. 552, n. ^ Walker v. Gregory, 36 Ala. ISO.— s. 229 212 ILLEGAL CONTEACTS. [lECT. Y. the agreement is a corrupt one, and is not enforceable at law, whatever the actual effect produced on the mind of the person bribed may be. The tendency of such an agreement as this must be to bias the mind of tlie agent or other person employed, and to lead him to act dis- loyally to his principal. It is intended by the party who promises the bribe to have that effect, and the other j)arty knows such is his intention. Such a bargain is obviously corrupt." In the particular case from which these words are cited, the defendants had contracted to pay the plaintiff a commission for superintending re- joairs to be executed by them on certain ships belonging to the Great Eastern Kailway Company. The plaintiff", r*9i '^1 ^^ ^^^^ ^^^^^ ^^ such contract being *made, was m a position oi trust in relation to the railway company, having been employed by them as an engineer to advise them as to the repairs, and the contract be- tween defendants and plaintiff" was made in part in con- sideration of a promise that the plaintiff" would use his influence with the railway company to induce them to accept the defendants' tender for the repair of the ships. The jury found that the contract, though calculated to bias the mind of the plaintiff, had not, in fact, done so, and that he had not in consequence thereof given less beneficial advice to the company as to the defendants' tender than he would otherwise have done. But the Court held that the plaintiff" could not maintain an action for commission under the contract, on the ground that, even although the plaintiff" had not been induced to act corruptly, the consideration for the contract was corrupt. Next, with regard to the second class — those, namely, which are void as contravening the policy of the law. It might, perhaps, have seemed more simple to have ranked this and the former in one and the same class, 230 , LECT. v.] ILLEGAL CONTRACTS. 213 since it is obvious, that, wherever a contract has an immoral tendency, there it is opposed to the policy of the law. But the reason for dividing them into two classes is, that there are some contracts which involve no offence against the laws of morality, and nevertheless are opposed to policy ; such, for instance, as contracts in general '^restraint of trade, and wdiich, there- ^^914-1 fore, are arranged in a class by themselves. There seems to be nothing obviously immoral in a man's promising or covenanting not to carry on his trade within the limits of England. Nevertheless, such a covenant or promise has been held totally void. This was decided so long ago as in the reign of Henry V. ; in the Year Book of the 2nd year of which reign, fol. 5, pi. 26, a bond restraining a w^eaver from exercising his trade was held void : and Judge Hull flew into such a passion at the sight of it, that he swore on the bench, and threatened to send the obligee to prison till he had paid a fine to the King ; upon which Lord 3IacclesJield observes, in Mitchell v. Reynolds (o), "that he could not but approve of the indignation the judge expressed, though not his manner of expressing it." Accordingly such contracts were declared to be void in that case, and have ever since been held void {p). "The law," said Best, C. J., in Homer v. Ashford(5'), " will not allow or permit any one to restrain a person from doing what his own interest and the public welfare require that he should do. Any deed, therefore, by which a person binds himself not to emj)loy his talents, his industry, or his ^capital in any useful p:;.-,. ^-| undertaking in the kingdom, would be void. (0)1 P. Wms. 181, 194; 1 Smith, L. C. 417,428,8th ed. ; Gunmakers' Company v. Fell, Willes, 384. (p) At any rate until quite recently. See post. p. *223. (3) 3 Bing. (11 E. C. L. R.) 322, 326. 231 215 ILLEGAL CONTRACTS. But here arises a distinction, which was first illus- trated by Lord 3Iacclesfield, in the celebrated case of Mitchell V. Keynolds, before mentioned, which has ever since been upheld. It is, that though a contract in general restraint of trade is void, one in partial restraint of trade may be upheld ; provided the restraint be reason- able, and provided the contract be founded upon a con- sideration. " It may often happen," continued Lord Wynford (then Chief Justice Best), at the place whicl^ I have just cited, " that individual interest and general convenience render engagements not to carry on trade or act in a profession at a particular place proper." " Contracts for the partial restraint of trade are up- held," said the Court of Exchequer in Mallan v. May (r), "not because they are advantageous to the individual with whom the contract is made, and a sacri- fice pro tanto of the rights of the community, but be- cause it is for the benefit of the public at large that they should be enforced. Many of these partial re- straints on trade are perfectly consistent with public convenience and the general interest, and have been supported : such is the case of the disposing of a shop in a particular place, with a contract on the part of the vendor not to carry on a trade in the same place. It is r*91 n ^^ ^effect the sale of a good-will, and offers an encouragement to trade, by allowing a party to dispose of all the fruits of his industry (r^). And such is the class of cases of much more frequent occurrence, and to which this present case belongs, of a tradesman, manufacturer, or professional man taking a servant or clerk into his service, with a contract that he will not carry on the same trade or profession within certain (r) 11 M. &. W. 563. (r^) Prugnell v. Grosse, Alleyn, 67 ; Broad v. Jollyffe, Cro. Jac. 596 ; Jelliott r Broad, Noy, 98. 232 LECT. v.] ILLEGAL CONTRACTS. 216 limits (s). In such a case the public derives an advan- tage in the unrestrained choice which such stipulation gives to the employer of able assistants, and the secu- rity it affords that the master will not withhold from the servant instruction in- the secrets of his trade, and the communication of his own skill and experience, from the fear of his afterwards having a rival in the same business." But it must always be borne in mind, "that contracts in restraint of trade are ip themselves, if nothing more appears to show them reasonable, bad in the eye of the law " (ty. Examples of what are considered partial restraints of trade are numerous in the books ; they are usually partial in respect of time, as not to exercise it for a specified period ; or in respect of space, as not to trade within a given district ; and *a restraint limited (-^.9-17-1 as to space may be unlimited as to time and yet good (u). In Gale v. Heed (x), the contract was for one party not to trade with a certain class of per- sons in the mode specified, provided the other party traded with them therein. The defendant covenanted not to exercise the business of a ropemaker during his life, except on government contracts, and to employ the plaintiffs exclusively to make all the cordage which (s) Chesraan v. Nainby, 2 Ld. Raym. 1456 ; 2 Stra. 739. (t) Tindal, C. J., Horner v. Graves, 7 Bing. (20 E. C. L. E.) 744. But see Tallis V. Tallis, 22 L. J. (Q. B.) 185. (w) Catt V. Tourle, L. R. 4 Ch. 654, 33 L. J, (Cli.) 565 ; Elves t;. Crofts, 10 C. B. (70 E. C. L. R.) 241, cited post, p. *223. (x) 8 East, 80. 1 Warner v. Jones, 51 Me. 146 ; Clark v. Crosby, 37 Vt. 188 ; Hard v. Seeley, 47 Barb. 428 ; McClurg's Appeal, 58 Pa. St. 51 ; Jenkins v. Temples, 39 Ga. 655 ; Treat v. Snoniger Melodeon Co., 35 Conn. 543 ; Gillis v. Hall, 2 Brewst 342; Crawford v. Wick, 18 Ohio St. 190; Guerand r. Dandelet, 32 Md. 561; Warfield v. Booth, 33 lb. 63; Dean v. Emerson, 102 Mass. 480; More V. Bonnet, 40 Cal. 251; Perkins v. Clay, 54 N H. 518; Nougland v. Segur, 38 N. J. 230; Dwight v. Hamilton, 113 Mass. 175; Brown v. Rounsavell, 78 111. 589; Roller v. Ott, 14 Kan. 609; Peltz v. Eichelle, 62 Mo. 171.— s. 233 217 ILLEGAL CONTRACTS. [lECT. V. Bliould be ordered of him by bis connexion. The plaintiffs were to allow bim 2s. per cwt. on the cord- age made by tbem for such of bis connexion wbose debts sbould turn out to be good, but were not to be compelled to furnish goods to any whom they were not willing to trust. The Court considered that the de- fendant was not prevented from supplying those of bis connexion whom the plaintiffs rejected, and conse- quently that the restraint to follow bis trade was par- tial only. Such restraints were upheld in the case of Chesman v. Nainby, decided in the House of Lords upon writ of error {y), in which the agreement was, not to carry on the trade of a linendraper within half a mile of the place where the party was to serve as assistant; in that of Bunn v, Guy {z), where tbe agree- |-^o-| o-| ment was, tbat one attorney *in London selling bis business to others should not practice as an attorney within London, or 150 miles thereof; and in that of Proctor v. Sargent (a), where the servant of a cowkeeper in London engaged not to carry on tbe same trade as his master within five miles for twenty-four months after the determination of his service. Indeed nothing, as you must be well aware, can be more com- mon upon a dissolution of partnership, than for tbe retiring partner to covenant that he will not set up the same trade within a certain distance to the injury of tbe continuing partner. But tbese restraints must, in order to be upheld, be reasonable ; that is, a greater restriction must not be wantonly imposed than can be necessary for the protection intended. In Horner v. Graves {b), 100 miles from the place {y) 2 Str. 739 ; 3 Bro. P. C. 349. (z) 4 East, 190; Whittaker v. Howe, 3 Beav. 383; Dendy v. Henderson, 24 L. J. (Ex.) 324 ; NichoUs v. Stretton, 10 Q. B. (69 E. C. L. R.) 346. (a) 2 M. & Gr. (40 E. C. L. K.) 20 ; Benwell v. Inns, 24 L. J. (Ch.) G63. (6) 7 Bing. (20 E. C. L. R.) 735. 234 LECT. v.] ILLEGAL CONTKACTS. 218 where a dentist carried on business was considered an unreasonable space from which to exclude an assistant and pupil from practising the same profession after his service was determined and his instruction completed. " We do not see," said Tindal, C. J., in delivering the judgment of the Court of Common Pleas, " how a better test can be ajDplied to the question, whether reasonable or not, than by considering whether the restraint is such only as to afford a fair protection to the ^interest of the j)arty in favour of whom it is p-:9iqi given, and not so large as to interfere with the interest of the public. Whatever restraint is larger than the necessary protection of the party can be of no benefit to either, it can only be oppressive ; and, if oppressive, it is in the eye of the law, unreasonable. Whatever is injurious to the interests of the public, is void, on the grounds of public policy. In the case above referred to (Mitchell v. Reynolds) (c) Lord Chief Justice Parker says, * A restraint to carry on a trade throughout the kingdom must be void ; a restraint to carry it on in a particular place is good ;' which are rather instances or examples than limits of the apj)lica- tion of the rule, which can only be at last what is a reasonable restraint with reference to the particular case. In that case the plaintiflf had assigned to the de- fendant the lease of a house in the parish of A. for five years, and the defendant entered into a bond conditioned that he would not exercise the trade of a baker within that parish during that term ; and the restraint was held good, because not unreasonable either as to the time or distance, and not larger than might be neces- sary for the protection of the plaintiff in his established trade. No certain precise boundary can be laid down (c) 1 p. Wms. 181, 1 Smith, L. C. 417, 8th ed. This case, with the note thereon, should be carefully studied. 235 219 ILLEGAL CONTRACTS. [lECT. V. within which the restraint would be reasonable, and be- r*99m y^"^ which, excessive. In Davis i *Mason (d), L -^ where a surgeon had restrained himself not to practise within ten miles of the plaintiff's residence, the restraint was held reasonable. In one of the cases re- ferred to by the plaintiff, 150 miles was considered as not an unreasonable restraint, where an attorney had bought the business of another who had retired from the profession. But it is obvious that the profession of an attorney requires a limit of a much larger range, as so much may be carried on by correspondence, or by agents. And unless the case was such that the restraint was plainly and obviously unnecessary, the Court would not feel itself justified in interfering. It is to be remem- bered, however, that contracts in restraint of trade are in themselves, if nothing more appears to show them reasonable, bad in the eye of the law; and upon the bare inspection of this deed, it must strike the mind of every man that a circle round York traced with the distance of one hundred miles incloses a much larger space than can be necessary for the plaintiff's protec- tion." A fortiori, where the plaintiflf, a coal merchant in London, had taken the defendant into his service as town traveller and collecting clerk, and the defendant agreed that he would not within two years after leaving the plaintiff's service, solicit or sell to any customer of r^::99i-i the plaintiff, and would not follow or *be em- ployed in the business of a coal merchant for nine months after he should have left the employment of the plaintiff, the contract was decided to be void, as a restraint of trade unlimited in point of space {e). " I cannot express," said Parke, B., in this case, *' the rule (d) 5 T. R. 118. (e) "Ward v. Byrne, 5 M. & W. 548, 561 ; and see Allsopp r. Wheatcroft, I* B. 15 Eq. 59 ; 42 L. J. (Ch.) 12. 236 LECT. v.] ILLEGAL COJ^^TRACTS. 221 on this subject better than has been done by Tindal, C. J., in giving the judgment of the Court of Exchequer Chamber in Hitchcock v. Coker (/), where he says, ' We agree in the general principle adopted by the Court of Queen's Bench, that, where the restraint of a party from carrying on a trade is larger and wider than the protection of the party with whom the contract is made can possibly require, such restraint must be con- sidered as unreasonable in law, and the contract that would enforce it must be therefore void.' Now a re- straint prohibiting a party from carrying on trade within certain limits ,of space would be good, and a con- tract entered into for the purpose of enforcing such an agreement as that would be valid ; and the limit of the space is that which, according to the trade he carries on, is necessary for the protection of the party with whom the contract is made." The cases upon tiiis branch of the subject are reviewed by the Court of Exchequer in the great case of Mallan v. May, before mentioned ; and it may be '""convenient to the student to subjoin ^, ^^^^ the brief observations made upon them by that ^ -^ Court in giving judgment (g) : — " Applying this rule and referring to the analogous authorities, it appears to us, that, for such a profession as that of a dentist, the limit of London is not too large. In Davis v. Mason (A), Thetford and ten miles round, in Hayward v. Young {i), twenty miles round a place, were held reasonable limits in the case of a sur- geon ; in that of an attorney, London and one hundred and fifty miles round, in Bunn v. Guy (k) ; and in (/) 6 A. & E. (33 E. C. L. R.) 453. ig) 11 M. & W. 667. {h) 5 T. R. 118. (i) 2 Chit. 407 ; Atkyns v. Kinnier, 4 Ex. 776 ; Sainter v. Ferguson, 7 C. B. (62 E. C. L. E.) 716. (k) 4 East, 190. 237 222 ILLEGAL COXTEACTS. [lECT. V. Proctor V. Sargent (Z), five miles from Northampton Square, in the county of Middlesex, was held reason- able in the case of a milkman. And it makes no difference, in our opinion, that it appears on the face of this record that London contains a million of inhabi- tants. We doubt, indeed, whether the comparative populousness of particular districts ought to enter into consideration at all ; if it did, it would be difficult to exclude others, such as the number of men of the same profession, the habits of the people in that neighbour- hood, and other matters of a fluctuating and uncertain character, which would produce great difficulty and embarrassment in determining such question." Yet P^oQo-i the *Court will take into consideration the cir- cumstances at the time of the execution of the bond and the nature of the business, the goodwill of which was sold (m). Upon this principle a covenant not at any time to carry on the business of a butcher within five miles of the place where the covenantor carried it on, before his sale of the business to the covenantee, has been sup- ported as not unreasonable either in respect of time or distance (n). And in Tallis v. Tallis (o), the Court of Queen's Bench declared that any covenant is valid un- less it plainly appear that a restriction is imposed by it beyond what the interest of the covenantee re- quires. The proposition that a covenant or promise not to carry on a trade within the limits of England is totally (Z) 2 M. & Gr. (40 E. C. L. E.) 20 ; Pemberton v. Vaughan, 10 Q. B. (59 E. C. L. R.) 87. (m) Avery v. Langford, 23 L. J. (Ch.) 837 ; Harms v. Parsons, 32 Beav. 328; 32 L. J. (Ch.) 247. (n) Elves v. Crofts, 10 C. B. (70 E. C. L. R.) 241. (o) 1 E. & B. (72 E. C. L. R.) 391 ; S. C, 22 L. J. (Q. B.) 185. See Mum- ford V. Gething, 7 C. B. N. S. (97 E. C. L. R.) 305; 29 L. J. (C. P.) 105. 238 LECT. Y.] ILLEGAL CONTRACTS. 223 void (p), seems somewhat qualified in the recent case of Leather Cloth Company v. Lorsont (q). There a company was formed for the purchase and working of certain patents and processes for the manufacture of American leather cloth ; and the agreement for the pur- chase contained a provision, that the vendors " will not ^directly or indirectly carry on, nor will they, riitc)c,A-i to the best of their power, allow to be carried on by others, in any part of Europe, any company or manufactory having for its object the manufacture or sale of productions now manufactured in the business or manufactory " (of the vendors), " and will not com- municate to any person or persons the means or pro- cesses of such manufacture, so as in any way to inter- fere with the exclusive enjoyment by the purchasing company of the benefits hereby agreed to be purchased." James, V. C, held, that the restriction contained in this clause was not greater, having regard to the sub- ject-matter of the contract, than was necessary for the protection of the purchasers. His Honour, however, seems to have to some extent proceeded on the ground that the case much more resembled " the sale of a secret, which has been held to be perfectly good, with a stipu- lation unlimited as to time and place as to communi- cating the secret, or dealing with it so as to interfere with the j^urchaser. It is settled by authority that a man may bind himself not to communicate that process to anybody else anywhere, under any circumstances, in any part of the world" (r). But still more recently it (p) Ante, p. *214. iq) L. E. 9 Eq. 345 ; 39 L. J. (Ch.) 86. (?■) Leather Cloth Co. v. Lorsont, L. R. 9 Eq. 345, 354 ; 39 L. J. (Ch.) 86, 90. " Although the policy of the law will not permit a general restraint of trade, yet a trader may sell a secret of business, and restrain himself generally from using tliat secret." Per Sir J. Leach, V. C, in Bryson v. Whitehead, 1 Sim. & S. 74, 77. 239 224 ILLEGAL CONTRACTS. [lECT. V. r*99--i l^as been "^'held that a contract, unliiiiited in point of space whereby the defendant agreed with the plaintiffs not to establish himself in the cham- pagne trade, was not under the circumstances of that trade unreasonable and might be enforced (s). It may be mentioned here that where one covenants with another not to carry on business within a given distance of that other's house, this distance is to be calculated, popularly speaking, "as the crow flies," more accurately, by drawing a circle on a map, the radius of which is the given distance measured on the map. And where the question is whether the covenant is broken by the too great proximity of one house to another, then, in measuring the distance, it should be taken from the nearest point of the one house to the nearest point of the other, without regard to where the doors are situated (t). Further, contracts in restraint of trade must, in order to be good, be founded on a consideration, even although they be made by deed. " Where one agrees," said Lord Lyndhurst in a remarkable case, which is well r*99fi1 worthy of attention {u) , " with ^another to employ him, and the latter agrees not to work for any third person, such agreement is a partial restraint of trade, and must be supported by adequate considera- tion." Thus, in the case of Hutton v. Parker {x), it was held most clearly by the Court of Queen's Bench, that in an action on a bond given by the defendant not to enter into the service of any other than the plain- (s) Kousillon v. Eousillon, 14 Ch. Div. 351 ; 49 L. J. (Cli.) 338. \t) Mouflet V. Cole, L. E. 8 Ex. 32 (Ex. Ch.), S. C. 42 L. J. (Ex.) 8, affirm- ing L. R. 7 Ex. 70 ; S. C. 41 L. J. (Ex.) 28; Duignan v. Walker, Johns. 446; 28 L. J. (Ch.) 867. (u) Young V. Timmins, 1 C. & J. 339. See also Collins v. Locke, 4 App. Gas. 674; 48 L. J. (P. C.) 68. (z) 7 Dowl. 739. 240 LECT. v.] ILLEGAL CONTRACTS. 226 tiff within ten miles of the town of Sheffield, some con- sideration must be shown on the declaration, in order to make it good ; and the Court refused to presume one. But where an artisan agreed with manufacturers to serve for seven years, and not work for any other with- out leave; tliat in times of depression of trade he should be paid j^art only of his wages, but if ill, another was to be employed in his room ; and that they should pay him wages and house rent, but be at liberty to dismiss him on a month's notice ; the Court, thinking that the manufacturers were bound to employ him for seven years, subject to their power of dismissal, held, that there was a good consideration for the arti- san's promise to serve them exclusively (2/).-'^ iy) Pilkington v. Scott, 15 M. & W. 657 ; Sainter v. Ferguson, 7 C. B. (62 E. C. L. R.) 716. See 1 Smith, L. C. 435-437, 8th ed. ' See the note to Mitchell v. Reynolds, in 1 Smith's L. C. 736. In this country, the general principle that contracts in restraint of trade, so far as they may prevent the exercise of a particular calling, are void, has been fre- quently recognized and enforced, as, for example, a contract never to be en- gaged in the business of founding iron: Alger v. Thatcher, 19 Pick. 51; manufacturing chocolate : Yickery v. Welch, lb. 523 ; wool-carding : Pyke v. Thomas, 4 Bibb, 486, and the like ; while the exception has been equally established of sanctioning such contracts where the restraint applies only to a particular locality : Pierce v. Fuller, 8 Mass. 223 ; Pierce v. Woodward, 6 Pick. 206.; Nobles v. Bates, 7 Cow. 307 ; Palmer v. Graham, 1 Parsons' Eq. 476. It is stated in the text that the later English cases show an unwilling- ness to enter into the question of adequacy of consideration, and a strong in.stance of this may be seen in the very recent case of Atkyns v. Kinnier, 4 Exch. 776, where the defendant bound himself in the sum of £1000, as liquidated damages, not to practice as a physician within two miles and a half of a certain place. He did practice a few feet within that distance, measur- ing by a less frequented road than the usual thoroughfare, though by the latter he was beyond that distance, and there was no evidence that the plain- tiff had sustained any damage from his having done so. The jury having, under the direction of the Court, found a verdict of £1000, the Court of Ex- chequer discharged a rule to reduce the damages to a shilling, and held that the defendant must abide by the contract he had made. But in New York, it has been held that, primd facie, the law presumes even limited restraints on trade to be void, and they only will be upheld upon sufficient proof of their rea- sonableness, both as to consideration and usefulness : Chapel v. Brockway, 21 Wend. 158 ; Ross v. Sadgbeer, lb. 166. In the latter case, to a declaration on 16 241 22t) ILLEGAL CONTEACTS. [lECT. V. It was at one time tliou2;ht that the Courts wouki enter into the question of the adequacy of this con- sideration, and would hold the contract yoid if the con- r*99r--| sideration were inadequate. However, ^'it has been decided in the Exchequer Chamber, after great consideration, that the question of adequacy or inadequacy cannot be entertained, but that the parties must judge of that for themselves {z) ; a doctrine you may remember my citing as a strong instance of the un\villingness of the courts to enter into the question of the adequacy of consideration at all (a). The reason of this last rule is very succinctly expressed by Alder son, B., in Pilkington -y. Scott, above referred to: "Before the decision in Hitchcock v. Coker," he says, " a notion (2) Hitchcock V. Coker, 6 A. & E. (33 E. C. L. K.) 438 ; .Ircher v. Marsh, lb. 966 ; Price v. Green, 13 M. & W. 698 ; per Parke, B. (a) Ante, p. *176, et seq. a bond conditioned that the defendant shonld not manufacture pearl ash for ten years, nor within forty miles of a certain place, a general demurrer was sustained by the Court, on the ground that the consideration imported by the seal did not afford a presumption of such circumstances and reasons as were requisite to uphold such a contract. Prior and subsequent decisions in that State, haye not, however, observed such a rule, and an agreement not to practice as a physician within six miles or pay $500 for every month of such practice : Smith v. Smith, 4 Wend. 468 ; and an agreement not to set up a rival newspaper, or pay $3000 : Dakin v. Williams, 17 Wend. 447 ; Williams V. Dakin, 22 lb. 201, were respectively enforced, and the sums named held to be liquidated damages, and not a penalty. — r. A contract in general restraint of trade is void ; but if in partial restraint of trade only, it may be supjiorted, provided the restraint be reasonable, and the contract be founded on consideration: Holmes v. Martin, 10 Ga. 503; Bowser v. Bliss, 7 Blackf. 344 ; Butler r. Burleson, 16 Vt. 17(); Noah v. Webb, 1 Edw. Ch. 604 ; Alger v. Thacher, 19 Pick. 51. An agreement between two persons for the manufacture and sale of a certain patented article, which pro- vides for the continuance of the manufacture by one of them, and that the other after a certain time shall abstain therefrom, is not an agreement in restraint of trade: Kinsman v. Parkhurst, 18 How. 289 ; and see Whitney r. Slayton, 40 Me. 224 ; Van ilarter v. Babcock, 23 Barb. 633 ; Alcock v. Gib- berton, 5 Duer, 76 ; Heichew v. Hamilton, 3 Iowa, 596 ; Beard v. Dennis, 6 Ind. 200; California Steam Co. v. Wright, 6 Cal, 258; Duffy v. Shockey, 11 Ind. 70.— s. 242 LECT. v.] ILLEGAL CONTRACTS. 22T prevailed that the consideration must be adequate to the restraint ; that was, in truth, the law making the bargain, instead of leaving the parties to make it, and seeing only that it is a reasonable and proper bargain." Altliough the examples here given, and indeed by far the greater number of instances of contracts in restraint of trade, have been instances of restraint in time or place, the restraint which the law forbids within the limits before mentioned, is not confined to restraints in time or place. Thus, in one of the cases on the subject, a covenant by a licensee of a patent for a term of years not to make or vend during the residue of the term, any machines for effectuating the same thing as the patent was obtained for, without having the '^patented p^.^-,f.Q-, invention applied to those machines, was con- '- '^ -' sidered, and held not void {b). Another example of contracts, illegal because in con- travention of the policy of the law, is afforded by those cases in which contracts in general restraint of marriage have been held void (c). Thus, in Lowe v. Peers (d), a defendant entered into the following covenant : — " I do hereby promise Mrs. Catherine Lowe that I will not marry any person besides herself. If I do, I agree to pay her £1000 within three months after I shall marry anybody else." The Court of King's Bench held this contract void, remarking, " that it was not a promise to marry her, but not to marry any one else, and yet she was under no obligation to marry him." This case was affirmed in error (e). (6) Jones v. Lees, 26 L. J. (Ex.) 9 ; 1 H. & N. 189, See Hilton v. Eckersley, 24 L. J. (Q. B.) 353, 25 L. J. (Q. B.) 199, in Ex. Ch. ; 6 E. & B. (88 E. C. L E.) 47. (c) See Newton v. Marsden, 31 L. J. (Ch.) 690 ; Eobinson v. Omraaney, 21 Ch. Div. 780; 23 lb. 285; 51 L. J. (Ch.) 894; 52 lb. 440. (d) 4 Burr. 2225. (e) 4 Burr. 2234. 243 228 ILLEGAL CONTKACTS. [LECT. V. So, where a lady gave a bond conditioned not to marry, the Court of Chancery ordered it to be delivered up(/)- On the subject of marriage I may further mention, that a deed tending to the future separation of husband and wife is void on grounds of public policy {g) ; although a deed providing a fund for the ''lady's *- -^ support on tlie occasion of an immediate sepa- ration is not so (A). And the Chancery Division will exercise its jurisdiction in giving effect to arrangements of property contained in articles of separation, such separation having previously taken place (-i), and will restrain the husband from doing any act contrary to his covenant in such articles not to molest his wife {k). And even where the parties, after executing a lawful deed of separation, have been reconciled and have cohabited, the deed is not necessarily annulled thereby (/) ; but the performance of covenants therein will be comj^elled if it appear that such reconciliation was not intended to annul them (m). The distinction between the two cases of future and existing separation is obvious. The deed, in the former case, contemplates and facilitates that which the law considers an evil — namely, the separation of husband and wife ; in the latter case, the evil is in- evitable, and the effect of the deed is but to save the wife from destitution. (/) Baker v. White, 2 Vern. 215. Ig) Hindley v. Marquis of Westmeath, 6 B. & C. (13 E. C. L. K.) 200. {h) Jee V. Thurlow, 2 B & C. (9 E. C. L. E.) 547 ; Jones v. Waite, in Dom. Proc. 4 M. & Gr. (43 E. C. L. E.) 1104. (i) Wilson V. Wilson, 1 H. L. Gas. 538 ; Gibbs v. Harding, L. E. 8 Eq. 490, 5 Gh. 336 ; S. G. 38 L. J. (Ch.) 604, 39 lb. 374; Besant v. Wood, 12 Ch. Div. 605. ik) Sanders v. Eodway, 22 L. J. (Ch.) 230. {I) Wilson V. Mushett, 3 B. & Ad. (23 E. C. L. E.) 743; Eandle v. Gould, 27 L. J. (Q. B.) 57 ; 8 E. & B. (92 E. C. L. E.) 457. (m) Webster v. Webster, 22 L. J. (Ch.) 837. 244 LECT. v.] ILLEGAL CONTRACTS. 229 Almost the converse of these cases of deeds of ^separation are what are called Marriage broc- [-.:.,-,o^-, age contracts, that is, where a man has agreed, '- -■ in consideration of money, to bring about a marriage. These are all void as against public policy, the law con- sidering that unions so brought about are unlikely to be happy ones. This class of cases is founded upon a case in the House of Peers {71),^ in which Thomas Thinne gave an obligation of £1000 to Mrs. Potter, conditioned to pay her £500 within three months after he sliould be married to Lady Ogle, " a widow," the reporter says, " of great fortune and honour, for she was the daughter and heir of Jocelyn Percy, Earl of Northumberland." The Master of the Kolls decreed this bond to be void ; the Lord Keeper reversed the decree ; whereupon there was an appeal to the House of Peers ; and, upon hear- ing the cause there, all the Lords but three or four were of opinion that all such contracts are of dangerous con- sequences, and ought not to be allowed ; and they re- versed the decree of dismissal made by the Lord Keeper, and decreed the obligation to be void. Another, and an extensive class of cases is that in which the contract has a tendency to obstruct the course of public justice. These must be left for the next Lecture. (n) Hall V. Potter, 3 Lev. 411. ' Hall V. Potter (which is also reported in 1 Eq. Ca. Ab. 89, and 3 P. Wms. 392, and Show. P. C. 76) has been followed by a numerous class of cases : Cole V. Gibson, 1 Ves. 503; Roberts r. Roberts, 3 P. Wms. 74, see Mr. Cox's note; Smith V. Bruning, 2 Vern. 392 ; Duke of Hamilton v. Lord Mohun, lb. 652 ; Boynton v. Hubbard, 7 Mass. 112; and Lord Redesdale, when Chancellor of Ireland, declared void a bond given to the obligee as a remuneration for hav- ing assisted the elopement of the obligor without the consent of the wife's friends, though the bond was given voluntarily after the marriage, and with- out any previous agreement therefor: Williamson v. Gihon, 2 Sch. & Lef. 362. The civil law, however, it is well known, in its approval and encouragement of the institution of marriage, allowed the proxenetce, or match-makers, to stipulate, within limits, for a reward for promoting marriages : Code, Lib. 5, tit. 1, 1. 6. [Crawford v. Russell. 62 Barb. 92.— s.]— r. 245 p23n *LECTURE VI. ILLEGAL CONTRACTS. — FRAUD. — GAMING AND HORSE- RACING. WAGERS. There is another remarkable instance of contracts falling under the class of which we have been treating — namely of illegality created by the rules of common law, which it will be right to specify before proceeding to the next branch of the subject. It consists of con- tracts, void, because having a tendency to obstruct the administration of justice. Such was the very contract in Collins v. Blantern {a), before mentioned — the case which first established that the person who has executed a deed is not estopped from showing by way of defence, that it was executed for an illegal consideration, although he would not have been allowed to defend himself on the ground that there w^as no consideration for it at all. In that case, five persons were indicted for perjury, and it was agreed that Collins, who was their friend, should buy off the prosecutor's evidence by giving him a note for £350, in consideration of which he undertook not to appear at the Assizes. And it was further agreed that, r*9^9"l "-^ *order to indemnify Collins against the con- sequences of being called upon to pay the note, Blantern should give Collins his bond conditioned for the payment of £350, the same sum for which the note was made. In an action brought upon the bond, the Court of Common Pleas held that it was void, and that a plea showing the consideration on which it was given was a good answer to the action. There is a case of (a) 2 Wils. 341, 1 Smith, L. C. 387, Sth ed. 246 LECT. VI.J ILLEGAL CONTRACTS. 232 Uuwin V. LeajDer {b), which involves the same princi- ple. There, an action of ejectment had been brought by Unwin against Leaper, when the latter gave notice of his intention to sue Unwin for certain statutable penalties incurred by him. Thereupon it was arranged that the action of ejectment should be dropped, that Unwin should pay down £50 towards Leaper's expenses in that action, and that Leaper should not proceed with the suit for the penalties ; and the Court of Common Pleas held that the £50 which had been paid might be recovered back as a j^ayment made in order to com- promise a penal action. In another instance (c), where one of two parties '^'to an agreement to suppress r:i-.9oo-| a prosecution for embezzlement, sued the other for an injury indirectly arising out of that agreement, he was not allowed to maintain the action. Of the soundness of these decisions, to use the words of the Court of Queen's Bench, in speaking of that in Collins V. Blantern, no doubt can be entertained, whether the party accused were innocent or guilty of the crime charged. If innocent, the law was abused for the purpose of extortion {d) ; if guilty, the law was eluded by a corrupt compromise, screening the criminal for a bribe [e)} (6) 1 M. & Gr. (39 E C. L. R.) 747. (c) Fivaz V. Nicholls, 2 C. B. (52 E. C. L. R ) 501. But where a just and bond fide debt actually exists, even though the transaction between the parties out of which the debt arises possibly involves a criminal liability, as for in- stance, where the debt is in respect of moneys received but not paid over by the debtor and so possibly embezzled, a threat to prosecute would not it seems necessarily vitiate a subseqent agreement by the debtor to give security for tlie debt he justly owes: Flower v. Sadler, 10 Q. B. D. 572 (C. A.), affirming 9 lb. 83. (d) Goodall v. Lowndes, 6 Q. B. (51 E C. L. R.) 464; and see Davies t;. London and Provincial Marine Ins. Co., 8 Ch. Div. 469 ; 47 L. J. (Chanc.) 511. (e) Keir v. Leeman, 6 Q. B. (51 E. C. L. R.) 316. * Thus, no action will lie on a contract to procure the appointment of clerk 247 233 ILLEGAL CONTRACTS. [lECT. VI. Here, however, it is convenient to observe that there are some instances, in which indictments for misde- of a court, or any office relating to the administration of justice : Haralson v. Dickens, 2 Car. L. Rep. 66 ; Lewis v. Knox, 2 Bibb, 453; Carleton v. Wliitcher, 5 N. H. 196 ; Proprietors v. Page, 6 lb. 183 ; or to promote the election of a candidate for office : Swayze v. Hull, 8 N. J. 54 ; Dearborn v. Bowman, 3 Mete. 135; Duke v. Asbee, 11 Ired. 112. So of the procuring or defeating by im- proper means or personal influence the passage of an act of the legislature : Wood V. M'Cann, 6 Dana, 366; Clii>pinger v. Hepbaugh, 5 W. & S. 315; or the use of interest to procure the pardon of a convict : Norman v. Cole, 3 Esp. 253 ; Hatzfield v. Gulden, 7 Watts, 152. So, where in contemplation of an assignment for, or composition with credi- tors, or of bankruptcy, an agreement whereby one creditor is to receive more than the others, cannot, if unknown to the rest, be enforced : Jackson v. Lomas, 4 T. R. 169 ; Smith v. Cuff, 6 M. & S. 160; Baker v. Matlack, 1 Ashm. 68; Mann v. Darlington, 15 Pa. St. 312. (See Bradshaw v. Bradshaw, 9 M. & W. 28, and Hornton v. Riley, 11 lb. 492, as to the debtor's right to recover back money so paid, which right is distinguished from the principle in pari delicto potior es< conditio defendcntis, on the ground of advantage being taken of the debtor's circumstances to exercise oppression over him.) A class of cases, however, should be here referred to as of a constant occur- rence. These depend on contracts based on a compromise or compounding of some offence. It is well settled that an agreement to compound a felony will not be enforced, and any security based upon such a consideration will be void ; on the other hand, some prosecutions for misdemeanors, as for example, for bastardy: Holcomb v. Stimpson, 8 Vt. 144; Maurer v. Mitchell, 9 W. & S. 71; Robinson v. Crenshaw, 2 Stew & P. 276; or, for assault and battery: Price V.Summers, 2 South. 578 (unless when coupled with a riot: Keir i'. Leeman, 6 Q. B. (51 E. C. L. R.) 308 ; in error, 9 lb. (58 E. C. L. R.) 371 ; or •with an intent to kill : Gardner v. Maxey, 9 B. Mon. 90), are allowed to be compromised by the parties, and to form a valid consideration for promises based on such compromise. Where, however, the relation of debtor and creditor has existed between the parties, the compromise of prosecutions for secreting property, for obtaining money under false pretences, and the like, is, if not held to form an illegal consideration (as it was in the late case of Shaw V. Reed, 30 Me. 105), at least looked upon with the strongest disfavour, as affording a ready instrument to abuse and oppression : Prough v. Entriken, 11 Pa. St. 81. The result of the authorities generally upon this subject appears to be, that where the misdemeanor is one in which the welfare of society is immediately concerned, agreements based upon their compromise will not be sanctioned (and its having been done originally by the leave of the Court makes no difference : Keir v. Leeman, 9 Q. B. (58 E. C. L. R.) 394), but the rigor of the rule will be relaxed in proportion as the general welfare ceases to be interested, and the offence and its punishment becomes personal between the parties, and still more as the prosecution loses a criminal complexion, and assumes n civil one. In perhaps the most recent prominent case in England, Keir v. Leeman, supra, which went on error from the Queen's Bench to the 248 I.ECT. VI.] ILLEGAL CONTRACTS. 233 meanours may be compromised. It is Avell known that a party committing certain private injuries may be in- Exchequer Chamber, Chief Justice Tindal, in delivering the opinion of the latter tribunal, said, that if the matter were res integra, they would have no doubt in holding that any compromise of any misdemeanor, or any jiublic offence, was an illegal consideration to support a promise, and that it was re- markable what very little authority, consisting rather of dicla than decision, there was to support such considerations. " We have no doubt that in all offences which involve damages to an injured party for which he may main- tain an action, it is competent for him, notwithstanding they are also of a pub- lic nature, to compromise or settle his private damage in any way he may tliink fit. It is said, indeed, that in the case of an assault he may also under- take not to prosecute on behalf of the public. It may be so, but we are not disposed to extend this any further." And the current of more recent authori- ties on this side of the Atlantic, sets strongly against the validity of such con- siderations: Clark V. Ricker, 14 N. H. 44; Com. v. Johnson, 3 Cush. 454; Gardner v. Maxey, 9 B. Mon. 90. — r. Where two persons apply to the Governor of the State to be appointed to the same office, and it is agreed that one of them shall withdraw his applica- tion and aid the other in procuring the appointment, in consideration of which the fees and emoluments of the office are to be divided between them, such contract is illegal and void : Gray v. Hook, 4 N. Y. 449. So no action will lie for services as agent in attending to a claim against the State, before the legis- lature, agreements in respect to such services being against public policy, and prejudicial to sound legislation ; nor can a recovery be had in such a case on a quantum meruit, there being no legal service performed : Harris v. Hoof, 10 Barb. 489. A contract for the sale of the personal influence of the plaintiff to procure the enactment of a private statute for the benefit of the defendant is contrary to public policy and void: Frost v. Belmont, 6 Allen, 152 ; Rose v. Truax, 21 Barb. 361 ; Gil v. Davis, 12 La. Ann. 219 ; Davison v. Seymour, 1 Bosw. 88 ; Powers v. Skinner, 34 Vt. 274. Services rendered in obtaining the X^assages of laws by the legislature may support a claim for compensation when publicly rendered by advocates disclosing their true relation to the subject : Wildey v. Collier, 7 Md. 273 ; Sedgwick v. Stanton, 14 N. Y. 289 ; Bryan v. Reynolds, 5 Wis. 200 ; Brown v. Brown, 34 Barb. 533. An agreement between a subordinate officer in a custom-house receiving a salary as such and a mer- chant who claimed the return of certain duties that the former should labour to obtain them for a compen.sation is illegal and void : Salterlee v. Jones, 3 Duer, 102. A promise to pay for services and expenses in procuring a pardon for a convict in the state prison is not illegal or invalid: Chadwick v. Knox, 31 N. H. 226 ; contra, Kribben v Haycraft, 26 IMo. 396. A contract not to bid at a judicial sale is void : Hook v. Turner, 22 lb. 333. But not an agreement to pur- chase jointly and afterwards divide: M'Minn v. Phipps, 3 Sneed, 196. A con- tract for the sale of an office is void as against the policy of the law : Eddy v. Capron, 4 R. I. 394. An indemnity against the publication of a libel is void : Lea V. Collins, 4 Sneed, 393. And see Spinks v. Davis, 32 Miss. 152 ; Nichols V. Mudgett, 32 Vt. 546 ; Devlin v. Brady, 32 Barb. 518; Morrell v. Quarles, 35 249 233 ILLEGAL CONTEACTS. [lECT. VI. dieted, as for a misdemeanour, as well as sued in a civil action; a remedy necessary for the party injured, who, if he could proceed by action only, would be in fact remediless in cases where the defendant could not pay the damages recovered. In many such cases it can hardly be admitted that the prosecution is to be consid- ered public, or that the public interest is concerned in bringing such an offender to justice by way of example to others. '"^Substantially, the only one wlio L -I suffers by the wrong is the individual against whom it is committed. In instances of this kind, the law does not forbid a compromise between the injurer and the injured. " The law," says the Court of Queen's Bench, in Keir v. Leeman (/), "will permit a com- promise of all offences, though made the subject of a criminal prosecution, for which offences the injured party might sue and recover damages in an action. It is often the only manner in which he can obtain re- dress. But if tlie offence is of a public nature, no agreement can be valid that is founded on the considera- tion of stifling a prosecution for it." The law will therefore sanction a bond, conditioned to remove a public nuisance, founded on the abandonment of an in- dictment for that nuisance, which is in fact a very com- mon instance of compromise {g). The compromise of indictments for assaults is another frequent instance of the same rule (A). But if, as in Keir v. Leeman, the offence is not confined to personal injury, but is accom- panied with riot and the obstruction of a public officer in the execution of his duty, these are matters of pub- (/) 6 Q. B. (51 E. C. L. E.) 321. (jr) Fallowes v. Taylor, 7 T. E. 475. (A) Baker v. Townsend, 7 Taunt. (2 E. C. L. E.) 422. Ala. 544 ; Cook v. Shipman, 24 111. 614 ; Brisbois v. Sibley, 1 Minn. 230 ; Valen- tine V. Stewart, 15 Cal. 387 ; Tool Co. v. Norris, 2 Wall. 45.— s. 250 LECT. VI.] ILLEGAL CONTRACTS. 234 lie concern, and therefore not legally the subject of a compromise. To return to the subject of contracts tending to obstruct the course of justice. The case of Coppock ^v. Bower (^), in which an agreement to with- poQ^n draw an election petition in consideration of a sura of money was held void, is another instance of their illegality. So is the case of Arkwright v. Cant- rell ik), where the grant of a judicial office to a person interested in the matters which would become the sub- jects of adjudication, was held void. For a similar reason, contracts to induce voters, for any consideration of advantage to themselves, to vote in favour of a par- ticular candidate, are illegal and void. Thus, when a candidate himself makes a contract with any one to supply meat and drink to electors, it is void ; and if the things be supplied, the person supplying cannot recover the price from the candidate (I) ; for, by the policy of the law, the electors should be free to use their own un- biased judgment in selecting the candidate most fit to serve the public as a member of the great council of the nation. Persons who have the right of appointing to public offices of trust or to any favour from the Crown, are bound to use a like discrimination. All agreements, therefore, to pay money for an appointment to any pub- lic office of trust, or for the grant of any public favour, are illegal {in)} {{) 4 M. & AV. 361, ante, p. *18. (k) 7 Ad. & E. (34 E. C. L. R.) 365. See Dimes v. Grand Junction Canal Co., 3 H. L. C. 759. A very remarkable case. (0 Thomas v. Edwards, 2 M. & W. 218. (m) Parsons r. Thompson, 1 H. Bl. 322 ; Hopkins r. Prescott, 4 C. B. (56 E. C. L. R.) 578 ; Harrington v. Du Chatel, 1 Bro. C. C. 124 ; Gr£eme v. Wrough- ton, 24 L. J. (Ex.) 265 ; Corp. of Liverpool v. Wright, 28 L. J. (Ch.) 868. ^ Frost V. Belmont, 6 Allen, 152; Tool Company v. Norris, 2 Wall. 45.— s 251 236 ILLEGAL CONTRACTS. [lECT. VI. r^Koop-i *Agreements to indemnify persons against the consequences of illegal acts fall witliin the same rule as contracts directly to obstruct the adminis- tration of justice (ny So also do all promises which are made to obtain release from duress of person by illegal arrest, or under compulsion of colourable legal process, whereby it is made the instrument of oppres- sion or extortion ; but not where the arrest was legal (o); and for similar reasons money extorted by duress of the plaintiff's goods, and paid by him under protest, may be recovered back (p).^ (n) Shackell v. Eosier, 2 Bing. N. C. (29 E. C. L. R.) 634. A contract with one who becomes bail for another on a criminal charge to indemnify him against his liability as bail is illegal as being against public policy. Wilson v. Strug- nell, 7 Q. B. D. 548 ; 50 L. J. (M. C.) 145. (o) See The Duke de Cadaval v. Collins, 4 A. & E. (31 E. C. L. R.) 858 ; Cummingsv. Hooper, 11 Q. B. (63 E. C L. R.) 112; Johnson v. Royal Mail Steam Packet Company, L. R. 3 C. P. 38 ; 37 L. J. (C. P.) 33. (p) Ashraole v. Wainwright, 2 Q. B. (42 E. C. L. R.) 837 ; Wakefield v. Newton, 6 Q. B. (51 E. C. L. R.) 27-6 ; Fernley v. Branson, 20 L. J. (Q. B ) 178. ^ Mitchell V. Vance, 5 Mon. 529; unless the illegal act is already done, in which case, the agreement to indemnify is no encourgement to do future harm : Hackett v. Tilly, 11 Mon. 93 ; Kneeland v. Rogers, 2 Hall, 587. Thus a bond given to a sheriff to indemnify him against a voluntary escape which had happened is valid, though if given in anticipation of such an escape it would fall within the general rule : Given v. Diggs, 1 Cai. 450 ; Doty v. Wilson, 14 Johns. 381 ; and these cases, it will be perceived, are analogous in principle to those which, while holding to be invalid bonds executed in consideration of a future separation between husband and wife, yet enforce such instruments where the separation is to be immediate, or has already taken place. — K. An agreement to indemnify a sheriff for an act to be done by him in plain violation of his official duty, is invalid ; but such an agreement, in the case of a disputed right, is lawful: Shotwell v. Hamblin, 23 Miss. 156.— s. 2 It is no objection to the validity of a contract fairly entered into, where no advantage was sought or taken by the other party, that at the time of entering into it he was under arrest ; but where legal process has been used as a means of oppression and to extort disadvantageous terms from a party in custody, instruments in writing so obtained will be set aside : Stebbins v. Niles, 25 Miss. 267 ; Wells v. Barnett, 7 Tex. 584 ; Smith v. Atwood, 14 Ga. 402. A note given by a person lawfully imprisoned in order to procure his discharge, is not invalid as being given under duress: Bates v. Butler, 46 Me. 387. 252 LECT. VI.] ILLEGAL CONTRACTS. 236 Maintenance and champerty are so often talked of as contracts having an illegal object and consideration, that they seem to require a slight allusion here. Main- tenance consists in one who has no interest in the subject of a suit, and no just right to interfere in it, aiding by money or otherwise the j^arties interested. This is forbidden by the law, whose policy has always been to discourage ^disputes and litigation. A r:::9or--| contract therefore with such an object is void ; but a man who has an interest in the cause, or reasonably thinks he has, is not guilty of maintenance if he prosecutes it in common wdth others, and his agreement so to do is good (q). If a person, having no interest in a suit, interferes with the object of shar- ing in the fruits of the suit, this is champerty (r). If, therefore, an attorney agrees not to charge liis client costs, in consideration of having for himself a propor- tion of what he may recover for him, this agreement is champerty, and consequently illegal and void {s)} If (q) Findon v. Parker, 11 M. & W. 675. See also as to an action for main- tenance lying against the maintainer : Bradlaugh v. Xewdegate, 11 Q. B. D. 1 ; 52 L. .T. (Q. B.) 454. (r) Williams v. Protheroe, 3 Y. & J. 129 ; Stanley v. Jones, 7 Bing. (20 E. C. L. R.) 369 ; Hilton v. Woods, 36 L. J. (Cli.) 941.' (s) Re Masters, 4 D. P. C. 18, per Coleridge, J.; ex parte Yeatman, lb. 384; Earle v. Hop wood, 30 L. J. (C. P.) 217. As to duress of imprisonment see Phelps v. Zuschlag, 34 Tex. 371 ; Feller v. Green, 26 Mich. 70. An employment of criminal process to obtain civil redress is a misuse of process and a fraud upon the law ; and securities pro- cured under the pressure of such a proceeding, by the party promoting it, can- not bi» enforced : Seiber v. Price, 26 Mich. 518. An arrest under a legal war- rant if the object is to extort money or to coerce the settlement of a civil claim constitutes duress : Hackett v. King, 6 Allen, 58. As to duress per minas see Green v. Scranage, 19 Iowa, 461 ; Tapley v. Tapley, 10 Minn. 448 ; Bane r. Detrick, 52 111. 19 ; Thurman v. Burt, 53 lb. 129 ; Bosley v. Shanner, 26 Ark. 280 ; Knapp v. Hyde, 60 Barb. 80 ; Miller v. Miller, 68 Pa. St. 486 ; Plant v. Gunn, 2 Wood, 372 ;' Smith v. Rowley, 66 Barb. 502. As to duress of property see Spaids v. Barrett, 57 111. 289 ; Hibbard v. Mills, 46 Vt. 243.— s. ^ Upon the subject of " contingent fees " the law is not uniform throughout 253 237 ILLEGAL CONTRACTS. [lECT. YI. no suit be depending, or any stipulation for tlie com- mencement of one, a contract to supply documents and information whereby property may be recovered, in consideration of a share of the property when recovered, is legal. But if persons, having themselves no claim the various States. Perhaps it is a fair statement of the preponderating opin- ion of the better class of the profession to say that while it is generally recog- nized that cases may arise in which a lawyer is warranted in undertaking the case of a client who will be unable to compensate him unless successful in the suit, because a refusal might result in a failure to establish a just claim and a practical denial of justice to the suitor, still such engagements are to be entered into with extreme caution. The practice of taking cases as a gen- eral rule upon an agreement that compensation is to be contingent upon suc- cess would be generally condemned. Bee Judge Sharswood's " Professional Ethics" upon this subject, and also an interesting controversy in the Albany Law Journal (vol. 23, pp. 441, 479, 484, and vol. 24, pp. 4, IS, 24). As to the legality, as distinguished from the policy and morality, of the prac- tice, we find that while such arrangements have sometimes been held cliam- pertous, and while they are always regarded with disfavour by the Courts, they have been sustained in some States. In the most recent case in Pennsyl- vania, the legality of such contracts in that State is said to be well settled : Perry v. Dicken, 14 W. N. C. 245. On the other hand, Chief Justice Gray, in the case of Ackert v. Barker, 131 Mass. 436, cites the Massachusetts decisions, and after declaring upon their authority that such contracts are void, he goes on to say : " The law of Massachusetts being clear, there would be no pro- priety in referring to the conflicting decisions in other parts of the country. If it is thought desirable to subordinate the rules of professional conduct to mercantile usages, a change of our law in this regard must be sought from the Legislature, and not from the Courts." Other important American cases are discussed in the articles in the Albany Law Journal above referred to, and see also Weeks, Attorneys at Law, ^^ 350, et seq. In County of Chester v. Barber, 97 Pa. St. 45o, Paxson, J., said : " That an attorney may make any contract he sees proper with his client in regard to his compensation, where the client is a private citizen, and acting in his own be- half, is not denied. All that the law will do in such case is to scrutinize the transaction and see that it is fiiir and that no unconscionable advantage iias been taken either of the necessities or the ignorance of the client." The burden is upon the attorney to show the fairness of the transaction : Nesbit v. Lock- man, 34 N. Y. 167 ; Hitchings v. Van Brunt, 38 lb. 335. As to whether the fact that a champertous agreement has been made between the plaintiff and his attorney can be urged as a defence to the action, the decisions are conflict- ing. The weight of authority would seem to be against it. See Courtright v. Burnes, 2 McCrary, 532 ; Whitney v. Kirtland, 27 N. J. Eq. 333 ; Allison v. Eailroad, 42 Iowa, 274 ; Eobinson v. Beall, 26 Ga. 17 ; sed contra, Greenman V. Cohee, 61 Ind. 201 ; Barker v. Barker, 14 Wis. 142 ; Webb v. Armstrong, 5 Humph. 379 ; Morrison v. Deaderick, 10 Humph. 342. 254 LECT. yi.] ILLEGAL CONTRACTS. 237 on the property, agree with a claimant that legal pro- ceedings shall be instituted in his name to recover it, and they will supply him with documents, information, and evidence not specified, but such evidence as will enable him to recover it, and to be rewarded with a share when ^recovered, this is maintenance in its worst aspect (t) . And where, in considera- ^ ' -I tion that the plaintiff would take the necessary steps to contest a will, and would advance money and obtain evidence for such purpose, and instruct an attorney, defendant promised plaintiff half the jjroperty which might come to defendant by reason of such proceedings, this agreement was held void as amounting to cham- perty ; although the plaintiff was a relation of the de- fendant, and had some collateral interest in the suit {u). It is worth observing, that it is mainly for the pur- pose of avoiding maintenance that the rule of law for- bidding the assignment of choses in action was estab- lished [x), a rule which, as the law admitted the assignee to sue in the name of the assignor was seldom, in prac- tice, allowed to interfere with the liberty required by trade and commerce. The disadvantages, however, of the rule are now obviated by the j^rovisions of the Judi- cature Act of 1873, to which I shall liave occasion again to refer you {yY {t) Sprye v. Porter, 26 L. J. (Q. B.) 64 ; 7 E. & B. (90 E. C. L. E.) 58 ; Simpson v. Lamb, lb. 121 ; 7 E. & B. (90 E. C. L. E.) 84 ; Knight v. Bowyer, 26 L. J. (Ch.) 769 ; 27 L. J. (Ch.) 520 ; Anderson v. Eadcliffe, 28 L. J. (Q. B.) 32 ; S. C. in Ex. Ch., 29 L. J. (Q. B.) 128. (m) Hutley v. Hutley, L. R. 8 Q. B. 112 ; 42 L. J. (Q. B.) 52. \x) Litt. 347; Co. Litt. 214 a; Shep. Touch. 240. (y) See as to tlie assignment of choses in action, 36 & 37 Vict. c. 66, s. 25, Bub-sec. 6 ; and jjost, Lect. VII., "Assignment of Contracts." ^ The offence of maintenance seems now to be confined to the intermeddling ^f a stranger in a suit for the purpose of stirring up strife and continuing litigation : Dorwin v. Smith, 35 Vt. 09. An agreement between an attorney 255 239 ILLEGAL CONTRACTS. [lECT. VI. r=i:ooo"i *A11 contracts between British subjects and alien enemies, not having a ncense to trade with this country, are void, and cannot be enforced, even upon the return of peace (z). The sovereign of this country has a right to proclaim war, with all its consequences, enforcing or mitigating them either gen- erally or in particular instances, as may be thought best by the Government. One of these consequences is, that trade and dealing Avitli the enemy, unless ex- pressly permitted, are forbidden. For a British subject, not domiciled in a neutral country, to ship a cargo from an enemy's port is prima facie dealing and trading with the enemy, and therefore forbidden by law ; and con- sequently a contract made before the war, under which it is agreed that a cargo shall be shi2:)ped from a port which, by the declaration of war, becomes that of the enemy, is thereby rendered illegal, and no action can be founded upon the fact of its not being performed (a) . But if the contract has been made before the war be- (z) Kensington v. Inglis, 8 East, 273. See Potts v. Bell, 8 T. R. 548. (a) Esposito V. Bowden, 27 L. J. (Q. B.) 17, in Ex. Ch. ; 7 E. & B. (90 E. C. L. R.) 763; Reid v. Hoskins, 24 L. J. (Q. B.) 315; 5 E. & B. (85 E. C. L. E.) 729 ; 20 L. J. (Q. B.) 5 ; 6 E. & B. (88 E. C. L. R.) 953, in Ex. Ch. and his client that he shall be first paid out of the funds recovered is not maintenance or champerty : Christie v. Sawyer, 44 N. H. 298 ; Jordan v. Gil- len, lb. 424; Moody f. Harper, 38 Miss. 599; Ryan v. Martin, 16 Wis. 57. — S. In Sedgwick v. Stanton, 4 Kernan, 301, Selden, J., said : " I still think, in view of the manifest tendency of modern judicial opinions, as well as of the plain scope and intent of our Legislature upon the subject, that not a vestige of the law of maintenance, including that of champerty, now remains in this State, except what is contained in the Revised Statutes." See on this subject Thompson v. Reynolds, 73 III. 11 ; Backus v. Byron, 4 Mich. 535; Danforth v. Streeter, 28 Vt. 490 ; Voorhees «. Dorr, 51 Barb. 580; Sherley ?;. Riggs, 11 Humph 53; Smith v. Thompson, 7 B. Mon. 305; Taylor v. Gilman, 58 N. H. 417 ; Richardson v. Rowland, 40 Conn. 572; Hoffman v. Vallejo, 45 Cal. 564; Lytle V. State, 17 Ark. 608. 256 LECT. VI.] ILLEGAL CONTRACTS. 239 tween their respective countries began, the parties thereto may sue upon it when peace is restored (^)^ Agreements contravening the ends and objects of the enactments of tlie Legislature, or, as it is *most p;:o4A-| commonly expressed, the policy of those enact- ments, are void (c). And this class of illegality is properly arranged with other instances of illegality by the common law, because it does not consist in the breach of any enactment of a statute, but violates the 2:>rinci23le of the common law, which is to carry into effect the intent and object of the Legislature. The most common instances of this illegality are afforded by agreements to give a creditor of a bankrupt or insol- vent more than his equal share of the bankrupt's or in- solvent's estate, which it is the object of the Bankrupt and Insolvent Acts to divide equally amongst his credi- tors (d). An instance may also be given from the case of Prole V. Wiggins (e) where the agreement was to evade the provisions (/) of the Aj)othecaries Act (55 Geo. IIL c. 194, s 15), which required that a student, previously to being admitted to examination for the purpose of obtaining his certificate to practise as an apothecary, should have served an apprenticeship for (6) Alcenius v. Nygrin, 24 L. J. (Q. B.) 19 ; 4 E. & B. (82 E. U. L. R.) 217. (c) Ritchie v. Smith, 6 C. B. (GO E. C. L. R.) 462. (d) Staines v. Wainwright, 6 Bing. N. C. (37 E. C. L. R.) 174; Davis v. Holding, 1 M. & W. 1.56; Tabram v. Freeman, 2 C. & M. 451; Wilkin v. Manning, 23 L. J. (Ex ) 174 ; 9 Ex. 575. See Nerot v. Wallace, 3 T. R. 17, a very instrnctive case; Hills v. Mittson, 22 L J. (Ex.) 273; 8 Ex. 751; Murray v. Reeves, 8 B. & C. (15 E. C. L. R.) 421 ; Humphries v. Smith, 22 L. J. (Q. B.) 121. (e) 3 Bing. N. C. (32 E. C. L. R.) 230. (/) Now repealed by 37 & 38 Vict. c. 34, s. 2. 1 Condon v. Walker, 1 Yeates, 483; Cambioso v. MofFett, 2 Wash. C. C. 98 ; United States v. Lap^ne, 17 Wall, 601 ; Whitfield v. United States, 92 U. S. 165; Railey v. Gay, 20 La. Ann. 158; Clements v. Yturria, 14 Hun. 151 ; Bank of New Orleans v. Matthews, 49 N. Y. 12 ; Hill v. Spear, 50 N. H. 253. 17 257 240 ILLEGAL C0^' TRACTS. [lECT. VI. five years. Here the father of a student agreed with an apothecary to take his. son as an apprentice for two r*94n J^^^^f ^"^ to antedate the ^'articles, so that it should seem that he had been apprenticed for the legal term of five years, in order that, at the expi- ration of two years only, he miglit be admitted to his examination, and gave the apothecary a bond to secure the payment of a premium stipulated to be given upon such apprenticeship. The Court of Common Pleas, however, held that the bond was clearly void. So, too, an agreement by a shareholder in a company which is being compulsorily wound up, that in consideration of pecuniary equivalent lie will endeavour to postj)one the making of a call, or will support the claim of a credi- tor, is illegal, as being contrary to the policy of the Winding-up Acts (g). In the cases lately referred to, so much is said of the policy of the law and public policy, that it is desirable to add a few words in explanation of them. These terms have been used to express an important princi])le from very early periods (A), and one of the most im- portant cases of very modern times has been decided upon grounds of public policy (i)} They are, however, (g) Elliott V. Richardson, L. R. 5 C. P. 744 ; 39 L. J. (C. P ) 340. (/t) Shep. Touch. 132; Co. Litt. 206 b. (i) Egerton v. Brownlow, 4 H. L. C. 1. ' There is a disposition, especially in recent cases, to recognize very fully the principle that when parties of full age and in the possession of all their faculties choose to make a bargain which is not strictly illegal and does not involve consequences of positive harm to third parties or to the community generally, the true "policy of the law" is to see that they carry it out. Emi- nent judges have expressed dissatisfaction at the lengths to which the Courts have gone, and the tendency is, not to allow the doctrine to be pushed further. In Ricardson v. Mellish, 2 Bing. (9 E. C. L. R.) 229, Best, C. J., said : "I am not much disposed to yield to arguments of public policy. I think the Court of Westminster Hall (speaking with deference, as an humble individual likej myself ought to speak) have gone much further than they were warranted inl going in questions of policy : they have taken on themselves, sometimes, 258 LECT. VI.] ILLEGAL CONTKACTS. 241 used indiscriminately in many of the cases, although perhaps the phrase " policy of the law " indicates more correctly the sense in which the terms are used in law, than the words "public policy." Whichever form is ^employed, two distinct classes of things are re- ferred to by them. Sometimes they indicate the f "242] decide doubtful questions of policy ; and they are always in danger of so do- ing, because courts of law look only at the particular case, and have not the means of bringing before them all those considerations which ought to enter into the judgment of those who decide on questions of policy." In Hilton v. Eckersley, 6 E. & B. (88 E. C. L. K.) 64, Lord Campbell said: "I enter upon such considerations with much reluctance, and with great apprehension, when I think how different generations of judges, and different judges of the same generation, have differed in opinion upon questions of political economy and other topics connected with tlie adjudication of such cases. And I cannot iielp thinking that, where there is no illegality in bonds and other instru- menrs at common law, it would have been better that our Courts of justice had been required to give effect to them unless where they are avoided by Act of Parliament. By following a different course, the boundary between judge- made law and statute-made law is very difficult to be discovered. But there certainly is a large clasps of decisions whicli will be found collected in the re- port of the recent Bridgewater Case in the House of Lords (Egerton v. Earl Brmynlow, 4 H. L. C. 1) to the effect that, if a contract or a will is, in the opinion of the Judges before whom it comes in suit, clearly contrary to public policy, so that by giving effect to it the interests of the public would be pre- judiced, it is to be adjudged void." In Printing and Numerical Re-isterin.np:Q-\ cause either the consideration for the ^j^romise or the act to be done was illegal, as being against the express provisions of the law or contrary to justice, morality, and sound policy. But where the consideration and the matter to be performed are both legal, we are not aware that a plaintiff has ever been precluded from recovering by an infringement of the law not contemplated by the contract in the perform- ance of something to be done on his part." Where, moreover, a contract is to do a thing which cannot be performed without a violation of the law, it is void whether the parties knew the law or not. But in order to avoid a contract which can be legally per- formed, on the ground that there was an intention to perform it in an illegal manner, it is necessary to show that there was the wicked intention to break the law (2:). And a foreigner who sold and delivered goods abroad to a British subject, knowing at the time the buyer intended to smuggle them into this country, was allowed to recover the price here ; not merely on the ground that the subject of a foreign country is not bound (1/) It seems, that, by a subsequent statute, he would in this case be deprived of the right of suing : 2 Will. 4, c. 16, ss. 11, 12. {z) Waugh V. Morris, L. B. 8 Q. B. 202,42 L. J. (Q. B.) 67. 276 LECT. VI.] ILLEGAL CONTKACTS. 258 to pay allegiance or respect to tlie revenue laws of this, but also because the plaintiff took no actual part in the illegal act, and it was not a contract of which the smug- gling was an essential part, for the buyer might have changed his mind the next day (a). *With regard to the distinction of which I r:!:of^qi have been speaking [viz., where an incidental illegality occurs], I will make but one further observa- tion, namely, that it would ajDply to cases of common law as well as statutable illegality ; but I have spoken of it under the head of statutable illegality, because I do not remember any decided case arising upon a ques- tion as to illegality at common law which would aptly illustrate it. I can, however, put such a case without difficulty. Suppose, for instance, A. employs B., a builder, to repair the front of his house, and B., in so doing, erects an indictable nuisance in the public street, still, as the contract to repair the house is legal, and the erection of the nuisance in so doing was not contem- plated by the agreement, B. might recover for the rej^airs which he had executed. But it would be otherwise if it had been made part of the agreement, that the repairs should be performed by means of the erection of the nuisance ; for there the illegality would have entered into and formed part of the contract (b)} (a) Pellecat v. Angell, 2 Cr. M. & K. 311. (6) As to contracts of which performance has become illegal after the making, see Brown v. Mayor of Loudon, 3U L. J. (C. P.) 225; 31 L. J. (C. P.) 280, in Ex Ch. * The cases upon this subject seem to require a somewhat fuller notice. In Rex V. Somerby, cited bj' the lecturer, a pauper apprentice was moved, by reason of illness, from the parish of Melton Mowbray, to that of Somerby, where he resided forty days, during which time he was employed in selling lottery tickets, and it was held that he had gained a settlement in the latter parish, notwithstanding the unlawful act in which he had been engaged," though it was suggested that if the master and apprentice had conspired to- 277 259 ILLEGAL CONTRACTS. [lECT. "VI. Now, sucli being the effect of illegality created by statute, in avoiding an agreement tainted with it, and gether, and moved thither for that purpose, the case might have been differ- ent : and this decision is perfectly reconcilable with principle and with all the authorities. But in Pellecat v. Angell it was was held that a foreigner selling and delivering goods to a British subject could recover their price, although he knew at the time of the sale that the buyer intended to smuggle th?m into England, and the decision (which was in accordance with the previous case of Hodgson w. Temple, 5 Taunt. (1 E. C. L. R.) 181, except that the case went farther, both parties being English), to some extent, was rested on the distinc- tion taken in Biggs v. Lawrence, 3 T. R. 454, between merely knowing of the illegal act, and being a party thereto. That case decided that where a smug- gler bought brandy in Guernsey, and the vendor packed it in ankers in pre- paration for smuggling, he could not recover the price of it, because he was aiding in the breach of the revenue laws, while in Ilolman v. Johnson, Cowp. 342, where the vendor, a foreigner, knew of, but did not actively participate in the smuggling, he was held entitled to recover. Lord Abinger, however, in delivering the opinion in Pellecat v. Angell, did not rely wholly on this distinction between mere knowledge and participation, but to a great extent based his opinion upon the fact of the law which was infringed, being a foreign one to the plaintiff. " It is perfectly clear," said he, " that where ])arties enter into a contract to contravene the laws of their own country, such a contract is void ; but it is equally clear, from a long series of cases, that the subject of a foreign country is not bound to pay allegiance or respect to the revenue laws of this, except indeed that when he comes within the act of breaking them himself, he cannot recover here the fruits of that illegal act. But there is nothing illegal in merely knowing that the goods he sells are to be disposed of in contravention of the fiscal laws of another country." Such a course of reasoning has been, however, seriously questioned by Mr. Justice Story in his treatise on the Conflict of Laws (§ 254, note), who asks, if a Frenchman could be allowed to recover, in England, the price of poison sold in France for the avowed purpose of poisoning the Queen. But it may be remarked of the English cases that for some time, and until a very recent period, contracts connected with a violation of the revenue laws, were rather less severely construed than those in violation of other statutory provisions (see some of the cases, siiprn, p. ^19, note 2), and Pellecat v. Angell, which was decided in 1835, may, so far as concerns the above reasons, for the decision, be classed with these cases. But upon the other ground, the line of distinction between knowledge and participation, or rather between what is and what is not participation, is at times a difficult one, and it is certain that the older cases have sanctioned re- coveries in instances where they would now perhaps be denied. Thus, in Faikney v. Reynous, 4 Burr. 20G9, the plaintiff and one Richardson were jointly concerned in transactions forbidden by the act "to prevent the in- famous practice of stockjobbing" (7 Geo. 2, c. 8), and the plaintiff having paid the whole of the loss sustained by the failure of the operation, the Court 278 LECT. VI.] ILLEGAL COXTEACTS. 259 such being the distinction between illegality stipulated for — contemplated by the contract — and illegality oc- (Lord Mansfield, C. J.) held that a suit could be maintained upon a bond given to the plaintiff by the defendants to secure the repayment of Richard- son's proportion of the loss, as the illegality did not enter into this new trans- action; and in the subsequent case of Petrie v. Hannay, 3 T. R. 418, the facts and the decision were the same way. So, it was formerly held that money lent to pay a gambling debt might be recovered, though the money lost could not: Robinson v. Bland, 2 Burr. 1077 ; Barjeau v. Walmsley, Str. 1249 ; Alcin- brook V. Hall, 2 Wils. 309 ; and these cases were approved in Farmer v. Rus- sell, 1 B. <*i: P. 299, though the decision in that case was on a different ground, viz., that one who had received money for the use of a party engaged in am illegal contract could not defend in an action for money had and received on the ground of illegality, he being considered in the light of a stakeholder (as to which see infra). But a class of cases soon followed, in which the authority of Faikney v. Reynous, and Petrie v, Ilannaj-, was sometimes distinguished, but more frequently queslioned: Booth v. Hodgson, 6 T. R. 405; Lightfoot v. Tenant, 1 B. & P. 551 (where Eyre, C. J., put the case of a druggist who should sell arsenic to one who he knew was going to poison his wife with it) : Aubert v. Maze, 2 B. & P. 371, Eldon, C. J.; Langton v. Hughes, 1 M- & S. 593 (where it was held that one who sold drugs to a brewer, knowing that he would use them to adulterate ale witlu contrary to a statute, could not recover, though it was not proved that they had been so used) : Webb v. Brooke, 3 Taunt. 12; Ex parte Mather, 3 Ves. Jr. 373; Ex parte Daniels, 14 lb. 192; Gas Light Co. v. Turner, 6 Bing. N. C. (37 E. C. L. R.) 324 ; and in Cannan t'. Br3'ce, 3 B. & Aid. (5 E. C. L. R.) 179, two partners entered into an illegal stockjobbing transaction, by which a heavy less was sustained, which was paid by a sum of money lent them by Bryce, the defendant, who, as the jury found, was not a partner in the stockjobbing transaction. In consideration of this loan, which had been only secured by a bond, one of the partners assigned to the defendant three cargoes of vessels and soon after, a commission of bank- ruptcy issued against both of them, and the assignees in bankruptcy were held entitled to recover the proceeds of these cargoes from the defendant. "If," said Abbott, C. J., who delivered the opinion of the Court, " tlie defendant acted unlawful!}^ in lending his money to the bankrupts, he could ncft have sued them for the recovery of payment, because no suit can be maintained upon an unlawful act ; and if recovery could not be enforced at law upon the con- tract of lending, neither could recovery be enforced upon a bond given for the performance of that contract;" nor, consequently, upon the assignments which were to secure the bond ; and in M'Kinnell r. Robinson, 3 M. & W. 43-5, this case was approved, and it was held, in opposition to Alcinbrook v. Hall, that money lent to play hazard with could not be recovered back. On this side of the Atlantic, the authority of the older and overruled Eng- lish eases has, however, been in many instances recognized and affirmed. Thus, in Carsan v. Rambert, 2 Bay, 500, it was held (on the authority of Robinson v. Bland), that the value of a horse lent to stake at a gambling table 279 259 ILLEGAL CONTEACTS. [lECT. VI. curing incidentally during tlie course *of its performance, I will proceed, as I did when could be recovered hy the lender, from the borrower. But the principal case is perhaps Armstrong v. Toler, 4 Wash. C. C 297, and 11 W^heat. 258, where Armstrong and others contrived, during the war, a plan to smuggle into the country goods consigned to Toler, and on their seizure at the port of destina- tion, Toler became security to the government to abide tlie event of the suit, and delivered to Armstrong his proportion of the goods on his promise of re- payment, in case they should eventually be condemned. The goods were con- demned, and Toler paid tlie amount of their appraised value, and in suit brought by him against Armstrong, it was objected that the contract was void, as founded on an illegal consideration ; but the court below charged that the subsequent independent contract, founded on a new consideration (viz., that of the delivery of the goods to Armstrong), was not contaminated by the illegal importation, although it was known to Toler when the contract was made, provided the latter had no interest and participation in the importation, and this was left as a fact to the jury, who found that he had no such partici- pation, and tlie judgment entered on the verdict was affirmed on error, upon the authority of Faikney v. Eeynous, and Petrie v. Hannay ; and to the same effect are Smith V. Barstow, 2 Dongl. 163; Leavitt v. Blatchford, 5 Barb. 9; Hook V. Gray, 6 lb. 398; Thomas v. Brady, 10 Pa. St 109; Phalen v. Clark, 19 Conn. 432 (some of which cases also recognized as authority those of Faik- ney V. Reynous, and Petrie v. Hannay) ; and in Cheney v. Duke, 10 Gill & J. 11, it was thought by the court to be abundantly settled that the knowledge of the vendor that the subject of the sale was to be illegally employed, could not defeat his recovery of the contract price ; and in an action brought for the purchase-money of a slave, bought for the purpose of exportation contrary to a local statute, the plaintiff" was, notwithstanding his knowledge of the unlaw- ful exportation was proved, held entitled to recover, on the ground that noth- ing was done by him in furtherance of the illegal design. In Mlntyre v. Parks, 3 Mete. 208, a mortgagee was, on the authority of Holnian v. Johnson, mpra, held entitled to recovery, though the considera- tion of the mortgage was lottery tickets, whose sale was prohibited in IMassa- chusetts, on the ground that the contract was made in New York, where such sales were valid, and notwithstanding the mortgagee knew that they were in- tended to be sold in the former State, in violation of its laws; while in Scott V. Duffv', 14 Pa. St. 18, money lent in New Jersey to be bet upon the presiden- tial election, was allowed to be recovered in Pennsylvania, on the ground that there was no evidence that such a bet was illegal in New Jersey In Steele V. Curie, 4 Dana, 387, the following remarks were made upon this subject by Eobertson, C. J., after referring to the different opinions which have been expressed : — " We feel that it may be but proper to suggest, in passing, that we would be inclined neither to concur with, nor to dissent from, the doctrine of either party, in extemo and altogether, ytithout limitations or qualification; but should rather incline to the conclusion that, although, as we are disposed to think, a 280 LECT. VI.] ILLEGAL CONTEACTS. 260 speaking of illegality at common law, to specify some of the instance of most ordinary practical occurrence, simple knowledge, by a vendor, of the fact that a vendee buys an article for tlie purpose or with an intention of using it in violation of a public law. or a principle of moral rectitude, may, in strong and flagrant cases, such as that supposed by Chief Justice Eyre, be a sufficient reason for withliolding, from either party, the aid of the law for enforcing tlie contract, yet there may be cases of a lighter shade or less degree of enormity, in which the same fact might not, alone, be entitled to the same effect: and in the latter class, we would be inclined to place the beer case decided by Lord Ellenborough. And the reason wliy we should be disposed to make any discrimination in conse- quence of the color or degree of the transgression contemplated by the buyer and merely understood by the seller, and why, also, we are inclined to agree with Chief Justice Eyre to some extent, is just because it does seem to us, that no one can sell a commodity, knowing that the buyer intends to use it for any purpose so flagitious as that of murder or treason, or other flagrant violation of the fundamental rights of man or of society, without betraying such a degree of turpitude and recklessness as to implicate him, as a volun- tary and active participant in the unlawful design, and, as therefore, quantum in illo, willing and instigating a crime, which it is the civil duty of every citizen to oppose ; and that the like knowledge alone, of the buyer's purpose of un- lawful appropriation or use, would not necessarily lead to the like deduction, as to the motive or conduct of tlie seller, in every case of inferior degree, — as the beer case ; the case of a purcliase of an article with the intention of again making a fraudulent sale or use of it ; the case of a loan of money to a person who borrows for the purpose of re-loaning to a stranger at illegal interest; the case of a sale of merchandise by a wholesale merchant, in the regular course of his business, to one who, when he buys, intends to smuggle it into a foreign port, without paying the legal and accustomed duties; and many other cases of a similar kind, in which a citizen may be neutral with- out being guilty of incivism, or of any intentional participation in the un- lawful design. In all such cases, it would seem to us, that in a commercial, busy, and enterprising age, the law should not attempt to establish a morality 60 pure, and exact, and vigilant, as that which would make it the legal duty of every seller of every vendible thing, to become a casuist or censor, so far as to make him responsible for the known motives of the buyer, and an active and guilty co-operator with him in his contemplated violation of law, of principle, or of justice." The later English cases were, however, cited with approbation, and fol- lowed in Perkins v. Savage, 15 Wend. 418 ; Branch Bank v. Crocheron, 5 Ala. 25P ; Wooten v. Miller, 7 Sm. & M. 386, and Duncan v. Cox, 6 Blackf, 270.— R. See also Green v. Collins, 3 CliflT. 494 ; Brunswick v. Valleau, 50 Iowa, 120, "Wilson V. Stratton, 47 Me. 120; Savage v. Mallory, 4 Allen, 492; AValan v. Kerby, 99 Mass. 1; Adams v. Couillard, 102 Mass. 167; Walker v. Jeiieries, 45 Miss. 100 ; Kindskopf v. De Kuyter, 39 Mich. 1 ; Hill t. Spear, 50 N. H. 281 260 ILLEGAL CONTRACTS. [lECT. VI. in whicli the Legislature has, by express provision, rendered particular contracts illegal [or void]. The first (c) example to which I shall advert arises on contracts by way of gaming or wagering, and which now arc void and not illegal {d). The Acts against Gaming were formerly exceedingly complex and trouble- some ; but tlie law has been much simplified by stat. 8 & 9 Vict. c. 109. Before the passing of that statute the first Act to be noticed was that of 16 Car. II. c. 7, s. 3 of which enacted that if any one should play at any pastime or game, by gaming or betting upon those who game, and should lose more than the sum of £100 on credit, he should not be bound to pay, and any contract to do so should be void. The 9th Anne, c. 14 (the principal enactment), pro- vided in sect. 1, that all securities for money or any other valuable thing won by gaming or playing at cards, pi=9ri1 ^^^®' ^^^^^^' bowls, or other game *whatever, or by betting on those who game, or for money lent for such gaming or betting, or lent to gamesters at the place where they are playing, shall be void. And the 2nd section exacted that any person who shall at a sitting lose the sum or value of £10 might recover back again within three months ; and if he did (c) In the earlier editions the first example was that of contracts void by usury, but the usury laws having lieen swept away (see per Kindersley, V. C, in Bond v. Bell, 27 L. J. (Ch.) 233, 235) by 17 & 18 Vict. c. 90, which came into force on the 10th Aug., 1854, it seems undesirable to mention them fur- ther here. (d) Beeston v. Beeston, 1 Ex. D. 13 ; 45 L. J. (Q. B., etc) 230 ; Eead v. Anderson, 10 Q. B. D. 100 ; 52 L. J. (Q. B.) 214. 253 ; Scherraerhorn v. Talman, 4 Kern. 93 ; Powell v. Smith, 66 N. C. 401 ; Williams v. Carr, 80 lb. 294; Wallace v. Lark, 12 S. C. 576; Henderson v. Waggoner, 2 Lea, 133; Kottwitz v. Alexander, 34 Tex. 689; Gaylord t. Soragen, 32 Vt. 110. 282 LECT. VI.] ILLEGAL CONTRACTS. 261 not, any other person might, together with treble the value — half for himself, and half for the poor of the parish. Now you will observe that under these two Acts securities for money lost at gaming, or by betting on the gamesters, or for money lent to them to game with, were illegal. And you will further observe that, even if no security were given, but the loser paid in cash, still, if the sum lost amounted to £10, it might be recovered back again (e). Now a horse-race is a game within the meaning of these Acts of Parliament, as you will find laid down in several cases (/) ; and therefore, if the law rested upon these statutes, all losses above £10 on any such race would be recoverable back by the loser, and would put the winner in danger of the penalties of the statute of Anne, and securities for *the payment of any ^^>.c,ncy•^ such losses would be void. But it was thought that horse-racing, confined within due limits, had a tendency to improve the breed of horses, and thereby promote the interests of the country at large. Acts of Parliament were therefore passed, providing for this j)articular object, and excepting such races, to a certain extent, from the provisions of the Gaming Acts. This was first done by stat. 13 Geo. II., c. 19, which legalized matches run at Newmarket, or Black Hambleton, or for the sum of £50 and upwards. But this statute im- posed certain restrictions as to the weights which the horses were to carry, which it seemed expedient to repeal ; and for that purpose was passed 18 Geo. II., c. (e) You may consult, on the construction of these Acts, Sigel v. Jebb, 3 Stark. (3 E. C. L. R.) 1 ; Brogden v. Marriott, 3 Bing. N. C. (32 E. C. L. E.) 88; and M'Kinnell f. Robinson, 3 M. & W. 434. (/) Goodburn v. Marley, Str. 1159; Blaxton v. Pye, 2 "NVils. 309; and Brogden v. Marriott, 3 Bing. N. C. (32 E. C. L. R.) 88. 283 262 ILLEGAL CONTRACTS. [lECT. VI. 34, s. 11, which, after re<"iting the restriction of the former statute as to weights, enacts that it shall be law- ful for any person to run any match, or to start and run for any plate, prize, sum of money, or other thing of the value of fifty pounds or upwards, at any weights whatever, in the same manner as if the Act of the lotb of Geo. II. had never been made. This Act, you will at once see, was m.ade merely to take away the restrictions with regard to weight, which had been imposed by the 13th of Geo. 11. ; but tliough that was its object, by one of those strange accidents which are so common in the history of law, the legality of all horse-racing came to depend upon it. i_... '''In the 1st section of the loth of Geo. 11. L *^ -■ there was a very strange and unaccountable en- actment. It enacted that no person should start more than one horse for the same j)late ; and that, if he did, all the horses entered by him, except the first, should be forfeited, and recovered by information or action at the suit of a common informer. The law regarding racing, mixed up as it was with the other Gaming Acts, being extremely complex, this portion of it was probably for- gotten, and certainly was not universally acted upon, when suddenly, in the years 1889 and 1840, informa- tions were filed for the purpose of recovering several valuable race-horses which had been entered by their owners, along with other horses their property, for the same stakes, in total ignorance of the prohibition of the Act of Parliament. As soon as tliis was represented to the Legislature, it interfered for the protection of the defendants, and passed the 3 Vict. c. 5 ; but the Act, I presume, inad- vertently, instead of repealing so much of the 13 Geo. II. as inflicted penalties, repealed that Act altogether so far as it related to horse-races. 284 LECT. VI.] ILLEGAL CONTRACTS. 263 Now it had always been supposed that the legality of horse-races depended on the 18 Geo. II., and that the Act of the 18th of the same reign was a subsidiary Act, and had merely the effect of taking off restrictions as to weight. And many persons therefore thought that the Act of 3 Vict. *c. 5, instead of effecting the p.-^^^ .n object of the Legislature by protecting horse- '- ^ -^ races, had repealed the only enactment by which they were supported, so tliat they had been thrown back into the class of games comprised within the statute of Anne, and would be illegal if for a larger stake than £10. At length the question arose, and was argued in a case of Evans v. Pratt (g) in which the Court of Common Pleas decided that the words of the 11th section of the 18 Geo. II., c. 84, were large enough to legalize all horse-races for stakes of £50 and upwards. Such races are therefore legal, and it is settled (A) that a race for £25 a side is a race for £50. These statutes and cases were reviewed at great length in the case of Applegarth v. Colley {i), which decided tliat a horse-race for a sweepstakes for £2 each was not illegal, although the total amount subscribed and run for amounted to less than £50, inasmuch as neither the statute of Charles (it being a ready money payment) nor the statute of Anne applied to a " race for a sum of money not raised by the parties themselves (that being, in truth, a wager), but given by w^ay of prize by a third person desirous of encouraging racing." But though a race for £50 was thus legalised, a bet on such a race was not so, for it was '''decided {k) ^-. that a person betting even on a legal horse-race ^ -" (g) 11 L. J. (C. P.) 87 ; 3 M. & G. (42 E. C. L. E.) 759 ; and see Bentinck f). Connop, 5 Q. B. (48 E. C. L. R.) 693. (h) Bidmead v. Gale, 4 Burr. 2432. (i) 10 M. & W. 723. (A) Sliillito V. Theed, 7 Bing. (20 E. C. L. R.) 405. 285 265 ILLEGAL CONTRACTS. [lECT. VI. is in the same situation as if he had betted upon any other game. Now there is one point not perhaps precisely form- ing part of, but strongly bearing on this subject, and of which I must here warn you. When I speak of the statutes of Charles and Anne as rendering bets of a greater amount than £10 recoverable back from the winner, and rendering all securities for bets void, you must understand me to speak of bets on persons gaming ; for the words of the former statute are, by " playing at the games or betting on the players," and of the latter and more imj^ortant one, " betting on the sides of such as game at any of the aforesaid games." All wagers, therefore, were not affected by these statutes, but only wagers upon games.'" Now a foot-race was held to be a game within these Acts (Z), as also was a dog-race (m). So were cards, dice, tennis, bowls, for they are mentioned in the Acts ; and so was cricket, though not sjaecified (n) ; not that there was anything illegal in these amusements themselves, but that the law would not allow the winner of £10 or upwards to receive or retain his winnings, nor would it allow any security for any winnings at them to be en- pj^o/^p-i forced. But as *to wagers not made upon games within the meaning of these Acts of Parlia- ment, if there was nothing illegal or opposed to public policy in the subject-matter of the wager, it was held that there was no statute which affected its validity. This was decided in the famous case of Good v. Elliott (o), in which the wager, whether a particular person had, before a particular day, bought a waggon, {I) Lynall v. Longbotham, 2 Wils. 36. (m) Daintree v. Hutchinson, 10 M. & W. 85. (n) Hodson i;. Terrill, 3 Tyr. 929 ; 1 C. & M. 797. (o) 3 T. E. 693; and see Hussey v. Crickitt, 3 Camp. 168; Jones v.Eandall, Cowji. 37 ; Evans v. Jones, 5 M. & W. 82. 286 LECT. VI.] ILLEGAL CONTRACTS. 266 was held legal, and the winner allowed to recover against the loser in an action, by three judges, con- trary to the opinion of Mr. J. Buller, who advocated the view which probably would have been most con- sistent with sound policy — namely, that the Courts should refuse to occupy their own time and that of the public by trying such questions. Such, then, being the state of the law as to gaming and wagering, in 1845 stat. 8 & 9 Vict., c. 109 was passed, of which s. 15 repeals 16 Car. II., c. 7, and so much of 9 Anne, c. 14, as was not altered by stat. 5 & 6 Will. IV., c. 41 (which Act will be referred to in the next lecture) ; and s. 18 of which enacts "that all con- tracts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void ; and that no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable *thing alleged to be won upon any r^onn-i wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made ; provided always that this enactment shall not be deemed to ap|)ly to any sub- scription or contribution, or agreement to subscribe or contribute for or toward any plate, prize, or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime, or exercise." It is clear, that, at common law, contracts by way of gaming or wagering were not, as such, unlawful (^).'^ (p) Tliackoorseydass v. Dliondmull, 6 Moo. (P. C.) 300 ; Hampden v. Walsh, 1 Q. B. D. 189 ; 45 L. J. (Q. B., etc.) 238. ^ By the common law, wagers were valid : Good v. Elliott, 3 T. R. 693, and cases cited supra; Campbell v. Eichardson, 10 Johns. 406; Haskett t). Wootan, 1 N. & McC. 180 ; Clark v. Gibson, 12 N. H. 386 ; Ball v. Gilbert, 12 Mete. 397 ; Scott V. Duffy, 14 Pa. St. 18; except so far as contrary, 1. To public policy, or 2. To private characters or feelings. The former ground renders invalid all 287 267 ILLEGAL CONTEACTS. [lECT. VI. Their illegality depends upon statute law, and after nu- merous alterations, it does not seem, that, in the many wagers on the result of an election : Allen v. Hearn, 1 T. R. 56; Ball v. Gil- bert, supra; Eust v. Gott, 9 Cow. 169: Wheeler v. Spencer, 15 Conn. 28; Lloyd V. Leisenring, 7 Watts, 294; Wagonseller v. Snyder, lb. 343; Wroth v. Johnson, 4 Harr. & M'Hen. 284; Gardner v. Kolen, 3 Harring. 420; I^iival v. Myers, 1 Bai. 486 ; Duncan v. Cox, 6 Blackf. 270 ; on tlie acquittal or discharge of a prisoner: Evans v. Jones, 5 M. & W. 77 ; on the result of a prize fight: Hunt V. Bell, 1 Bing. (8 E. C. L. E.) 1 ; McKeon r. Calierty, 1 Hall, 300; in restraint of marriage: Hartley v. Eice, 10 East, 22, and the like. The second ground renders invalid, wagers as to whether an unmarried woman would have a child by a certain day: Dichurn v. Goldsmith, 4 Camp. 152; as to the sex of a third person: Da Costa v. Jones, Cowp. 729 (which was the well-known case as to the sex of the Chevalier D'Eon) ; as to the life of a human being: Phillips V. Ives, 1 Eawle, 37 ; and perhaps as to the solvency of a third per- son : Thornton v. Thackray, 2 Y. & Jerv. 156. But as actions on wagers of any kind were never favoured by the courts, they have at times gone so far as to hold all wagers to be invalid : Lewis v. Little- field, 15 Me. 233 ; Collamer v. Day, 2 Vt. 144 ; Edgell r. M'Laughlin, 6 WHiart. 179c; Thomas v. Cronise, 16 Ohio, 54 ; Hoit v. Hodge, 6 N. H. 104; Eice v. Gist, 1 Strob. 82 ; and in many of the States statutory provisions exist, forbid- ding wagering or gaming contracts, to a greater or less extent: Wheeler?;. Spencer, 15 Conn. 28 ; Fowler v. Van Surdam, 1 Den. 557 ; Faris v, Kirtley, 5 Dana, 460. Where a wager is invalid from any of the above causes, so long as the money remains in the hands of the stakeholder, it is considered as being still within the control of the parties, and the loser may maintain an action to recover his stake : M'AUister v. Hoflinan, 16 S. & E. 148 : McAllister v. Gallaher, 3 P. & W. 468; Tarleton v. Baker, 18 Vt. 9; although if the money have been actually and bond fide paid over by the stakeholder to the winner, no part of it can be recovered from the latter by the loser, for the ca.se then comes within the maxim, in pari delicto potior est conditio defendentis : McAllister v. Hoffman, svpra; Speise v. M'Coy, 6 W. & S. 485; Danforth v. Evans, 16 Vt. 538; Machir v. Moore, 2 Gratt. 257 ; M'Hatton v. Bates, 4 Blackf. 63 ; Thomas V. Cronise, 16 Ohio, 54; but if the stakholder should pay over the money to the winner, after notice from the loser not to do so, he would pay at his own risk, and being in the position of a mere agent whose authority has been re- voked, he would be liable to the loser for the amount of his stake : Wheeler V. Spencer, supra; Ivey v. Phifer, 11 Ala. 535 ; Stacy v. Foss, 19 Me. 335 ; Per- kins V. Hyde, 6 Yerg. 288. The law was so held in New York in Vischer v. Yates, 11 Johns. 23; but that decision was overruled by Yates v. Foot, 12 lb. 1 ; and although the Eevised Statutes give a remedy against a stakeholder ■who pays over to the winner after notice from the loser, yet the courts apply the rule of Yates v. Foot, in cases not brought exactly within the statute as to form, time, etc. : Brush v. Keeler, 5 Wend. 250 ; Fowler v. Van Surdam, 1 Den. 657. 288 LECT. VI.] ILLEGAL CONTRACTS. 267 statutes on the subject of gaming, any enactment re- mains, except 6 Will. IV., c. 41, s. 1, hereafter men- tioned, wliereby they are rendered illegal {q). For examples of contracts held void under 8 & 9 Vict., c. 109, s. 18, as being by way of gaming and wagering, you may refer to Grizewood v. Blane (r), Rourke v. Short (s), and Hampden v. Walsh (/). *The first of these cases shows that a colour- p..j,o/>o-i able contract for the sale and purchase of rail- ^ -' way shares where neither party intends to deliver or to accept the shares, but merely to pay " differences " ac- cording to the rise or fall of the market is gaming within the last-mentioned enactment {u). In Rourke v. Short, {q) Beeston v. Beeston, 1 Ex. D. 13 ; 45 L. J. (Q. B., etc.) 230. (r) 11 C. B. (73 E. C. L. R.) 538. (s) 5 E. & B. (85 E. C. L. E.) 904; 25 L. J. (Q. B.) 196. (0 1 Q. B. D. 189 ; 45 L. J. (Q. B., etc.) 238. See also the recent cases of Batson r. Newman, 1 C. P. D. 573 ; Higginson i-. Simpson, 2 C. P. D. 76, 46 L. J. (Q. B., etc.) 192, for other examples of contracts held void as being for gaming or wagering. (u) But if a man employ a broker to speculate for him on the Stock Ex- change, though it is not intended between the employer and the broker that the stock bought or sold should be accepted or delivered, but that the employer should only pay the differences, this is not void as a gaming transaction so as to preclude the broker from suing his employer for commission, or for an in- demnity in respect of the contracts on which the broker has incurred a per- sonal liability to third persons. Thacker \\ Hardy, 4 Q. B. D. 685 ; 48 L. J. (Q. B., etc.) 289 ; Ez parte Rogers, In re Rogers, 15 Ch. Div. 207. The student will find most of these, as well as many other authorities upon the subject of wagers and of wagering policies, in the note to Godsall v. Boldero, 2 Smith's L. C. 293.— R. A bet on an election i's void at common law : Like v. Thompson, 9 Barb. 315: See also Bettis v. Reynolds, 12 Ired. 344; Terrall v. Adams, 23 Miss. 570; Bates v. Lancaster, 10 Humph. 134; Bevil v. Hix, 12 B. Mon. 140. [Lockhart v. HuUinger, 2 111. App. 465.] As to wagers generally, see Smith v. Brown, 3 Tex. 360 ; Humphreys v, Magee, 13 Mo. 435; McElroy v. Carmichael, 6 Tex. 454; Parsons v. The State, 2 Ind. 499. A contract to purchase sliares of stock without the inten- tion to deliver or receive them, is a gaming contract: Brua's Appeal, 55 Pa. St. 294 ; Ex parte Young, 6 Biss. 53. Contracts for the future sale and delivery of goods not in the possession of the vendor are not illegal : Shipp v. Bowen, 25 Ind. 44 ; Mcll value v. Egerton, 2 Rob. 422.— s. 19 289 268 ILLEGAL CONTRACTS. [lECT. VL plaintiff and defendant, while conversing as to some rags which plaintiff proposed to sell and defendant to purchase, disputed as to the price of a former lot of rags, plaintiff asserting the price to have been lower than defendant asserted it to have been. They agreed that the question should be referred to M., a spirit merchant, and that whichever party was wrong should pay M. for a gallon of brandy, and that, if plaintiff was right, the price of the lot now on sale should be 6s. per cwt., but if the defendant was right 85. M. decided that plain- tiff was right. The latter sent the rags to defendant, but defendant refused to accept them at Gs., offering 5s. The Court held, that the contract was by way of wager- ing and could not be '^upheld. In Hampden v. *- ^ -I Walsh, the plaintiff, who disbelieved in the con- vexity of the earth, and a Mr. Wallace, dej^osited each £500 with defendant, on an agreement that if Wallace, on or before the 15th of March, 1870, proved the con- vexity or curvature to and fro of the surface of any canal, river, or lake, by actual measurement and demonstration, to the satisfaction of defendant, Wallace should receive the two sums deposited; but if Wallace failed in doing this, the two sums were to be paid to the plaintiff. The agreement was held to be a mere wager. It is clear, under s. 18, that the lawfulness of any game at which any wager is made, does not make the wager lawful, in the sense of being recoverable in an action {x) : but if a party loses a wager, and requests another to pay it for him, the loser is liable to the party so paying it for money paid at his request (y). And where the plaintiff had paid the defendant money on the terms that the defendant was to employ it in betting (a;) Parsons v. Alexander, 24 L. J. (Q. B.) 277 ; 5 E. & B. (85 E. C. L. R.) 263. (y) Rosewarne v. Billing, 33 L. J. (C. P.) 56. 290 LECT. VI.] ILLEGAL CONTRACTS. 2G9 ou certain horse-races, and to pay the plaintiff a certain proportion of the winnings, and the defendant did so bet and won, and gave a cheque to the plamtiff for his share of the winnings, it was held that the plaintiff could sue the defendant on the cheque, which w^as dis- honoured, and on accounts stated *the defend- r-^or-rri ant having received moneys for which he had agreed to account, and was therefore bound to do so {z). But it has been held also, that the amount of a bet lost at a horse-race, and paid by the loser into the hands of a third party, on the promise of the latter to pay it to the winner, cannot be recovered by the winner out of the assets of such third person, if deceased (a). Where money is deposited with a stakeholder to abide the event of any wager, there is nothing, in the section under consideration, to prevent such a dej^ositor, w4io repents of his venture and repudiates the wager, from revoking the autliority given by him to the stake- holder to pay the money to the winner, at any time before the stakeholder has paid over the money, and suing the latter for his deposit, and recovering it from him (b). But the winner, after the happening of the event on which the wager depended, cannot recover his winnings unless the transaction comes within the pro- tection of the proviso with which section 18 '^con- r^^oy-i -i eludes (c). Where the deposit comes within s. 5 of 16 & 17 Vict. c. 119 (for the suppression of Bet- ting-houses), it may under that section be recovered (2) Beeston v. Beeston, 1 Ex. D. 13, 45 L. J (Q. B., etc.1 230. See also Ex parte Pyke, In re Lister, 8 Ch. Div. 754. (a) Beyer v. Adams, 26 L. J. (Ch.) 841. (b) Diggle V. Higgs, 2 Ex. D. (C. A.) 422, 46 L. J. (Q. B., etc.) 721 ; Hamp- den V. Walsh, 1 Q. B. D. 189 ; 45 L. J. (Q. B., etc.) 238; Varney v. Hickman, 5 C. B. (57 E. C. L. R.) 271 ; Martin v. He-A-son, 24 L. J. (Ex.) 174 ; 10 Ex. 737 ; Trimble v. Hill, 5 App. Cas. 342; 49 L. J. (P. C.) 49. (c) Varney v Hickman, Parsons v. Alexander, svpra, Savage r. Madder, 36 L. J. (Ex.) 178. 291 271 ILLEGAL CONTRACTS. [lECT. VT. from the receiver as money received for the use of the depositor (d). Where, however, a person employed a turf commis- sion agent to bet for him in the agent's own name, and the agent made the bet accordingly and became him- self personally liable for payment in the event of loss, incurring serious disabilities if a defaulter, it was held that the principal after the bet was made could not, •where the bet was lost but before the money was paid over, repudiate the authority and subsequently refuse to repay the agent the money he had paid in pursuance of the lost bet. The authority was held irrevocable, both on the ground that an authority coupled with an interest in the donee of the authority is irrevocable, and also on the ground that if one man employs another to do a legal act (e), which in the ordinary course of things will involve the agent in pecuniary obligations or otherwise, a contract on the part of the employer to indemnify his agent is implied by law (/). r*979'l *Although a foot-race comes within the pro- viso in s. 18 as being a " lawful game, sport, or pastime " (g), yet an agreement to w^alk a match for £200 a-side, the money being deposited with a stake- holder, is a wager, and null and void under that sec- tion ; and the deposit of the money is not a subscrip- tion or contribution for a sum of money to be awarded to the winner of a lawful game, within the meaning of the proviso (A). And the proviso does not extend to (d) See as to that section, Doggett v. Catterms, 34 L. J. (C. P.) 46. (e) That making a bet is not an illegal act, see ante, p. *260. (/) Kead v. Anderson, 10 Q. B. D. 100; 52 L. J. {Q. B.) 214, affirmed by a majority of the C. A., diss. Brett, M. E , 51 L. T. Eep. N. S. 55. See also Thacker v. Hardy, 4 Q. B. D. 685 ; 48 L. J. (Q. B., etc.) 289, ante, p. *268. (g) Batty v. Marriott, 5 C. B. (57 E. C. L. K.) 818. (h) Diggle V. Higgs, 2 Ex. D. (C. A.) 422 ; 46 L. J. (Q. B., etc.) 721 ; over- ruling Batty V. Marriott, 5 C. B. (57 E. C. L. E) 818, where it was held that 292 LECT. VI.] ILLEGAL CONTRACTS. 272 a case where two persons ran their horses against each other, the winner to have both horses, there being no subscription or contribution towards any plate, prize, or sum of money to be awarded to the winner(t). There is, however, one chiss of wagers which requires some attention. I allude to wagers in the shape of policies of insurance. An insurance, as you doubtless are aware, is a contract by which, in consideration of a premium, one or more jierson or persons assure another person or persons in a certain amount against the happening of a particular event ; for instance, the death of an individual, the loss of *a sliip, or ^^!:9^-o-| the destruction of property by fire. These three classes of policies, upon ships, lives, and fire, are of the most common occurrence ; but there is nothing to prevent insurance against other events ; for instance in Carter v. Boehm {k), one of the most celebrated cases in the Reports, Lord Mansfield, and the rest of the then Court of King's Bench, supported a policy of insurance against foreign capture effected in a fortress. Now, this contract of insurance, though one of the most beneficial known to the law, since it enables par- ties to provide against events which no human skill can control, to provide, for instance, against the ruin of a family by the sudden death of a parent, the ruin of a merchant by the loss of his venture at sea, or of a manufacturer by the outbreak of a fire on his premises, though productive, therefore, of most beneficial conse- quences to society, yet is very liable to be abused, and made an engine of mere gambling; for instance, A. insures B.'s life, ■i. e., he pays so much a year, or so much in the lump, to some one who is to pay him so 8uch a deposit was within the protection of the proviso : Trimble v. Hill, 5 App. Cas. 342; 49 L. J. (P. C.) 49. (0 Coombes v. Dibble, L. R. 1 Ex. 248 ; 35 L. J. (Ex.) 167. (i) 3 Burr. 1905 ; 1 Smith, L. C. 550, Sth ed. 293 273 ILLEGAL CONTKACTS. [lECT. VI. much upon B.'s death. If B. owes him money, and his object is to secure himself, it is a bond fide insur- ance ; but if B. is a mere stranger, in wliose life he has no interest, it is a mere wager. In order to prevent the contract of insurance from being thus abused, the statute 14 Geo. III., c. 48, prohibiting w^ager policies, as r*9741 ^^^^y ^^^ called, ^altogether, prevents a man from insuring an event in which he has no interest, and where he has an interest, but not to the extent insured, prohibits him from recovering more than the amount of his interest. The effect of this Act, in a word, is to invalidate wagers framed in the shape of policies of insurance — thus, a wager on the price of Brazilian shares framed like a policy was held invalid {I). But where the- transaction would not be commonly understood to be a policy of insurance, and therefore would not fall within the words of the stat. 14 Geo. III., c. 48, taken in their ordinary acceptation, the Courts would probably not consider it as within this Act (m). This Act applies to all subjects of insurance except marine risk, and these are provided for by the insertion of a similar prohibition contained in 19 Geo. II., c. 37, s. 1, enacting, that no insurance shall be made on any shij) belonging to his Majesty or any of his subjects, or on any goods, merchandise, or effects, laden or to be laden on board thereof, interest or no interest, or with- out further proof of interest than the policy, or by way of gaming or wagering, or without benefit of salvage to the assurers. And it is decided that one who has any interest may be insured to the extent of it, and any one may be considered to have an interest, who may be injured by the risks to which the subject- ed Paterson v. Powell, 9 Bing. (23 E. C. L. E) 320. (m) Ck)ok V. Field, 16 Q. B. (69 E. C. L. E.) 475. 294 LECT. VI. J" ILLEGAL CONTRACTS. 274 matter *is exposed, or who but for such risks r^nypr-i woukl have an advantage in the ordinary and probable course of things (n). It having been enacted by the statute 14 Geo. III., c. 48, that no insurance sliall be made by any person on the life of any person, or on any other event whatsoever, wherein the person for wdiose use, benefit, or on whose account such policy shall be made, shall have no inter- est, and that every assurance made contrary to the intent thereof shall be null and void, it is imj)ortant to ascertain what is to be considered as an interest in the event within the meaning of this statute. It is clear that a creditor has an interest in the life of his debtor (o), that a trustee may insure for the benefit of his cestui que trust (p), that a wife has an interest in her hus- band's life {q)y and that a man may assure his own life, which is the common case of every day's experience ; but he cannot evade the statute by doing so with the money of another, which other is to derive the benefit of the assurance, and has no interest in his life, since so to do would be virtually ''""enabliiig a person to ^^ effect an assurance on an event wherein he has '- *^ -^ no interest (r). It is also required that in every policy on the life of another the name of the person really in- terested when the policy is effected, or for whose benefit it is effected, must be inserted as the person interested, and the omission or erroneous statement of the person (n) Lucena v. Craufurd, 2 B. & P. N. R. 300; Briggs v. Merchant Traders* Shipping Assurance Association, 13 Q. B. {G6 E. C. L. R.) 107 ; see Dalby v. India London Life Ass. Co , 24 L. J. (C. P.) 2; 15 C. B. (80 E. C. L. R.) 365, in Ex. Ch.; and the note to Godsall v. Boldero, 2 Smith, L. C, 291, 8th ed. (o) Von Lindenau v. Desborough, 3 Car. & P. (14 E. C. L. R.) 353; Cooke V. Field, 15 Q. B. (69 E. C. L. R.) 460. (p) Tidswell v. Ankerstein, Peake, 151 ; Craufurd v. Hunter, 8 T. R. 13. (q) Read v. Royal Exchange Assurance Company, Peake, Ad. C. 70. (r) Wainwright v. Bland, 1 M. & W. 32; Shilling v. Accidental Death Ass, Co., 26 L. J. (Ex.) 266 ; 2 H. & N. 42; 27 L. J. (Ex.) 17. 295 276 ILLEGAL CONTEACTS. [lECT. VI interested, avoids the policy, whether a wagering policy or not (s). (s) 14 Geo. 3, c. 48, s. 2; Hodson v. Observer Life Ass. Society, 26 L. J. (Q. B.) 303 ; 8 E. & B. (92 E. C. L. K.) 240. See 38 & 39 Vict. c. 60 (The Friendly Societies Act, 1875), s. 25, as to insurances on the lives of children under 10, made with Friendly Societies. Sub-s. (8) of this section preserves such insar- ances from being invalidated by 14 Geo. 3, c. 48. 29b *LECTURE VII. [*277] THE lord's day act. — SIMONY. ILLEGAL WEIGBTS AND MEASURES. CONTRACTS BY ILLEGAL COMPANIES. ASSIGNMENT OF CONTRACTS. BILLS OF EXCHANGE FOR ILLEGAL CONSIDERATION. RECOVERY OF MONEY PAID ON ILLEGAL CONTRACTS. There are some other heads of statutable illegality which are frequently set up as affording an answer to any attempt to enforce contracts vitiated by them. I directed your attention on the last occasion, to the de- fences which arise under the laws enacted for preven- tion of gambling ; noticing the invalidity of certain wagers not falling within the statutes against gaming, by reason of the Acts of Parliament which prohibit wagering insurances. The first {a) class of cases to which I will now advert, consists of those contracts falling within the operation of the statute commonly known by the name of the Lord's Day Act. It is 29 Car. II., ^'c. 7, and it enacts pico-o-i that no tradesman, artificer, workman, labourer, or other person whatever shall do or exercise any worldly labour, or business or work of their ordinary callings, upon the Lord's day (works of necessity or charity only excepted), and that every person of the age of fourteen years offending in the premises, shall forfeit five shillings.^ The contracts prohibited by this (a) The first class of contracts treated of in this lecture in the earlier editions were those falling within the prohibition of the Stockjobbing Acts: bnt the latter having been repealed by 23 Vict. c. »8, it seemed better to omit all men- tion of such contracts from the text, as being no longer amongst " the instances of most ordinary practical occurrence." See ante, p. *260. * At common law, judicial proceedings alone seem to have been forbidden 297 278 ILLEGAL CONTRACTS. [lECT. VII. Statute are, you will observe, not every contract made on Sunday, but contracts made in the exercise of a on Sunday : Mackalley's Case, 9 Co. 66 b ; Comyns v. Beyer, Cro. Eliz. 485 ; Story V. Elliot, 8 Cow. 28 ; Sayles v. Smith, 12 Wend. 59 ; Boynton v. Page, 13 lb. 429 ; Kepner v. Keefer, 6 Watts, 233 ; all other transactions, therefore, done on that day depend as to their illegality upon statutory prohibition. The history of the regulations gradually adopted on this subject was thus sketched by Gilchrist, J., in the recent case of Allen v. Deming, 14 N. H. 136. " It appears," said he, " that the ancient Cliristians used all days alike for the hear- ing of causes, not sparing (as it seemeth^ the Sunday itself. One reason for this was, that tliey might not imitate the heathens, who were superstitious about the observance of days ; and also, that by keeping their own courts always open, they might prevent Christian suitors from resorting to heathen courts: Spelman's Original of the Terms, c. 17 ; Swan v. Broome, 3 Burr. 1598. But the practice ceased with the reason for it, and in the year 510, a canon was made, ' Quod nullus episcopits vel infra positus die dominico catisas judicare prccsu- niat.' This canon, with others of a similar character, was confirmed by Wil- liam the Conqueror and Henry the Second, and so became part of the common law of England. But the canons extended no farther ihan to prohibit judicial business on Sundays ; for fairs, markets, sports, and pastimes might still take place on the Sabbath : Comyns v. Boyer, Cro. Eliz. 485, decides that a fair held on Sunday is well enough, although by the 27 Hen. (i, ch. 5, a penalty was in- flicted on him who sold on that day. The toleration of amusements, and the existence of fairs in England to a greater or less degree upon the Sabbath, are readily accounted for by their own accordance with the practice of Eoman Catholic countries, among which was England until the Keformation in the reign of Henry the Eighth. "With the spread of the reformed religion, and the consequent improvement in civilization, the views and manners of the people changed on the subject of the rational observance of the Sabbath, and in all Prostestant communities laws were enacted to secure it, varying in their provisions with the peculiarities of the people. Pastimes of various kinds •were prohibited by the 1 Car. 1, c. 1, and by the 29 Car. 2, ch. 7. All persons •were prohibited from 'doing or exercising any worldly labour, business, or work of their ordinary calling upon the Lord's day.' " In the opinion of Lord Mans- field in Swan v. Broome, 3 Burr. 1598, referred to in the above extract, the student will find much of the old learning on this subject. It is believed that provisions, more or less similar to those of the statute of Charles, exist in all the United States. In Kew York, the statute refers only to "servile labour," and "exposing goods for sale." In South Carolina, New Hampshire, and Ehode Island, it has been nearly exactly copied. In many of the other States, such as Pennsylvania, Massachusetts, Maine, Vermont, and Connecticut, the provisions are more strict, interdicting all secular labour, whether in one's ordinary calling or not. Thus, no action can be maintained for a deceit in the exchange of hoi-ses on Sunday : Robeson v. French, 12 Mete. 24 : or a breach of warranty : Lyon ?■. Strong, 6 Vt. 219 ; Adams v. Hamell, 2 Doug. 73 ; nor for any injury received while travelling on that day, by reason 298 LECT. VII.] ILLEGAL CONTRACTS. 278 man's trade or ordinary calling ; thus it lias been de- cided in E. V. Wliitnash {b), that a contract made on (6) 7 B. & C. (14 E. C. L. R.) 596 ; R. v. Silvester, 33 L. J. (M. C.) 79. of a defective highway (the journey not being one of necessity or mercy) : Bosworth V. Swansey, 10 Mete. 365 (though it would be a work of necessity to repair tlie road on Sunday : Flagg v. Millbury, 4 Cush. 244) ; or on a note given on that day: Kepner v. Keefer, 6 Watts, 232 ; and the like. There was a rather early decision in Massachusetts (Geer v. Putnam, 10 Mass. 312), to the effect that a plea that a note was void because executed on Sunday, was bad on demurrer, but tlie case proceeded on the ground that the plea did not state on what part of Sunday the note was made, the act only extending between midnight on Saturday and the sunset of the next day ; and though the authority of the case was more broadly applied in Clap v. Smith, 16 Pick. 247, yet the recent cases have explained the decision on the ground just stated: Bosworth v. Swansey, 10 Mete. 364, arg. ; Robeson v. French, 12 lb. 24. In Specht v. The Commonwealth, 8 Pa. St. 313, it was held, affirming the previous decision of Commonwealth v. Wolf, 3 S. & R. 47, that the Pennsylvania Lord's Day Act was not at variance with the provision in the State constitu- tion, declaring the right of freedom of conscience in religious matters, and a conviction, under the act, of one of the sect called the Seventh Day Baptists was therefore sustained, the decision being based upon the ground of a day of rest being necessary to the welfare of .society, and that the mere prohibition of secular occupation did not interfere with the right of conscience. The case of Cincinnati v. Rice, 15 Ohio, 225, was decided upon a clause in the local statute, exempting persons who conscientiously kept holy the seventh day, and a somewhat similar provision is found in the Massachusetts statute. But although a bond may be void because executed on Sunday, so that, as a bond or contract, no suit can be maintained upon it, yet in a suit founded on the previous liability of the defendant, the bond may be regarded as an acknowledgment of that liability, as there is nothing to prevent a man from acknowledging the truth on Sunday, and consequently nothing to prevent its being given in evidence against him: Lea v. Hopkins, 7 Pa. St. 492; and in any case in which such a defence is set up, it is necessary that the statute be specially pleaded : Fox v. Mensch, 3 AV. & S. 444 ; unless of course where local statutory or other rules of pleading have varied this general principle. — R. See Smith v. Bean, 15 N. H. 577 ; Flagg i-. Millbury, 4 Cush. 243 ; Nason v. Dinsniore, 34 Me. 391 ; Goss v. Whitney, 24 Vt. 187 ; Sumner v. Jones, lb. 317 ; Hooper v. Edwards, 18 Ala. 280 ; Hilton v. Houghton, 35 Me. 143; Stackpole V. Symonds, 23 N. H. 229 ; Rainey v. Capps, 22 Ala. 288 ; Slade v. Arnold, 14 B. Mon. 287 ; Murphy v. Simpson, lb. 419 : Hill v. Sherwood, 3 Wis. 343 ; Hussey v. Roquemore, 27 Ala. 286 ; Goss v. Whitney, 27 Vt. 272. An agree- ment to publish an advertisement in a newspaper issued on Sunday is void : Smith V. Wilcox, 25 Barb. 341, 24 N. Y. 353. A promise to pay a debt on Sunday will not take the case out of the Statute of Limitations: Bumgardner V. Taylor, 28 Ala. 687. The Court will leave parties who swapped horses on 299 278 ILLEGAL CONTRACTS. [lECT. VII. Sunday by a farmer for the hire of a kbourer, is valid. The Court decided, in the first place, that a farmer was not a person within the meaning of the statute at all, for that the meaning of the words " tradei?man, artificer, workman, labourer, or ol/ier' person whatsoever," was to prohibit the classes of persons named and other persons ejusdem generis, of a like denomination ; and tliey did not consider a farmer to be so (c). And, secondly, they held that even if the farmer were comprehended within the class of persons prohibited, the hiring of the servant could not be considered as work done in his ordinary calling, for, said Mr. J. Bayley, " those things which are repeated daily or weekly in tlie course of trade or business are parts of the ordinary calling of a man exercising such trade or ^business ; but •- -' the hiring of a servant for a year does not come within the meaning of those words." (c) R. V. Silvester, 33 L. J, (M. C.) 79. Sunday without remedy: Jordan v. Moore, 10 Ind. 386. When both parties to a contract violate the law in making it, the law will not aid either to set it aside: Greene v. Godfrey, 44 Me. 25. The fact that a contract is signed on Sunday does not avoid it, unless it be delivered on Sunday: Sherman v. Roberts, 1 Grant, 2(51 ; Merrill v. Downs, 41 N. H. 72 ; Smith v. Foster, lb. 215 ; Tucker v. Mowrey, 12 Mich 378. A contract not void at common law nor expressly avoided by any statute, and which has been fully executed by the parties binds them although made on a Sunday. The delivery of a deed on Sunday is sufKcient to pass the title: Shuman v. Shuman, 27 Pa. St. 90.— s. In Dale v. Knepp, 98 Pa. St. 389, it was held (following Allen v. Duffy, 43 Mich. 1, and disapproving Catlett v. Trustees, 62 Ind. 365), that an agreement to subscribe for the erection of a church edifice is a work of charity, and may therefore be enforced, though made on Sunday. In Rogers i-. "\V. U. Tel. Co., 78 Ind. 1G9, Elliott C. J., said, "Courts can not declare, as matter of law, that the business of telegraphy is a work of necessity. There are, doubtless, many cases in which the sending and delivery of a message would be a work of necessity within the meaning of our statute. But we cannot judicially declare that all contracts for the transmission of telegraphic messages are to be deemed within the statutory exception. Whether the contract is within the exception must be determined, as a question of fact, from the evidence in each particular case." 300 LECT. YII.] ILLEGAL CONTRACTS. 279 The former of the two points decided in this case furnishes a very good exemplification of the celebrated rule of construction as applied to statutes, namely, that where an Act mentions particular classes of persons, and then uses general words, such as " all others^'' the gen- eral words are restrained to persons of the like descrip- tion with those specified [d). And, therefore, where a statute [e] recites that the Lord's day is much broken and profaned by carriers, waggoners, carters, wainmen, butchers, and drovers of cattle, and then enacts that those persons (naming them) shall not, by themselves, or any other, travel uj^on the Lord's day, and the Lord's Day Act contains the words previously recited, it has been determined that the owner or driver of a stage coach is not included within the words " other persons whatsoever," forbidden to exercise his calling on the Lord's day. The same construction was put upon the Lord's Day Act in a subsequent case, that of Peate v. Dicken (/), where it was decided, first, that an attorney was not within the description of persons intended by the statute ; and secondly, that if he were, an agreement made on Sunday to become personally *respon- p.>oQrvn sible for the debt of a client, could not be said ■- ^ to fall within his ordinary calling. But perhaps the second point illustrated by these cases is put in the clearest light by those of Drury v. De Fontaine {g) and Fennell v. Ridler {h), in the for- mer of which cases it was considered that the sale of a horse on a Sunday by a person not being a horse-dealer, (d) See Sandiman v. Breach, 7 B. & C. (14 E. C. L. R.) 96 ; Queen v. Nevill, 8Q. B. (55 E. C. L. R.) 452. See Bishop v. EUiott, 24 L. J. (Ex.) 229; 11 Ex. 113. (e) Stat. 3 Car. 1, c. 1. (/) 1 Cr. M. & R. 422. (.7) 1 Taunt. 131. (h) 5 B. & C. (11 E. C. L. R) 406. 301 280 ILLEGAL CONTEACTS. [lECT. YII. was not void, such sale not being within the ordinary- calling of the plaintiflf; and in the second, that a horse- dealer could not maintain an action upon a contract for the sale and warranty of a horse bought by him on a Sunday, it being obvious that, in doing so, he was exer- cising; the business of his ordinarv callins;. In accord- ance with these cases, it has been decided that one tradesman giving another, on the Lord's day, a guaranty for the faithful services of a traveller is not, in doing so, exercising his ordinary calling (i) : and the same con- clusion w^as come to in a still more recent case upon this subject, where it was decided tliat a recruiting officer en- listing a soldier on a Sunday is not executing his or- dinar}'" calling on the Lord's day {k). The cases in which the Act is most frequently sought to be applied are those of sales, of which you may see a remarkable instance in Simpson ?;. ^Nichols (^. L '^ J This was an action for goods sold and delivered. The defendant pleaded that they were sold and deliv- ered by him to the plaintiff" in the way of his trade on a Sunday, contrary to the statute ; the plaintiff* replied, that, after the sale and delivery of the goods, the defend- ant kept them for his own use, without returning or offering to return them, and had thereby became liable to pay as much as they were worth. This replication was considered to be no answer at all to the plea. A case had been cited in the argument (m), where the de- fendant, having purchased a heifer of a drover on a Sunday, and having afterwards kept it and expressly promised to pay for it, was held liable by virtue of that (i) Norton v. Powell, 4 M. & Gr. (43 E. C. L. E.) 42. See Scarfe r. Morgan, 4 M. & W. 270. (k) Wolton V. Gavin, 16 Q. B. (71 E. C. L. E.) 48. (l) 3 M. & W. 240. (m) Williams v. Paul, 6 Bing. (19 E. C. L. E.) 653. 302 LECT. VII.] ILLEGAL CONTRACTS. 281 promise. But Mr. Baron Parlce observed {n) that, a3 the property in the goods passed by delivery, the promise made on the following day to pay for them could not constitute any new consideration, and therefore he doubted whether that case could be supported in law. Perhaps, however, the Court considered that case as within the rule mentioned, ante, page *203, and that the express promise there mentioned might revive the precedent consideration, which might have been enforced at law through the medium of an implied promise, had not the party been ^exempted by the positive r-^.^^Qf^-, rule of law forbidding such a contract on the L - -'J Lord's day (o). Yet, from the application of the Act to these cases even there are some exceptions ; some created by the Act itself, which permits food to be sold in inns and cookshops to persons who cannot be otherwise provided, and for the sale of milk at certain hours ; others by 10 6 11 Will. III., c. 24, s. 14, which legalises the sale of mackerel before and after divine service; others by 6 & 7 AVill. IV., c. 37, which allows bakers to carry on their business to a certain extent and under certain restric- tions, see s. 14 ; and, indeed, even before the passing of that Act or of the 34 Geo. III., c. 61, on the same sub- ject, it had been decided that a baker baking provisions for his customers was out of the purview of the Act altogether, that being a work of necessity (p) ; and there are other exceptions created by other particular enactments — as, for instance, in the case of hackney carriages.^ (n) Simpson v. Nichols, 5 M. & W. 702, note. (o) See Scarfe v. Morgan, 4 M. & W. 270. See per Bosanqxiet, J., 6 Bing. (19 E. C. L. R.) 655. (p) See R. V. Qe e.xtent, the bar of the limitation act, in cases of notes attested by a wit- ness and sued by the original payee, which was the case in this instance. Under these circumstances, it was contended on behalf of the defendant, that he was not originally liable on the note, under the principles just stated, — th.it never having ratified it, it was voidable, and useless therefore in that action for any purpose, — and that the plaintiff" when thrown back to the considera- tion of the note, could not recover by reason of the lapse of time. The Court, however, held that, as a general principle, there was nothing to prevent an infant's liability on an express, as well as on an implied contract for neces- saries, provided the consideration were always left open for proof as to reason- ableness of amount, &c., and the Court saw no reason why the statute referred to, should not apply to the case of a note given by a minor, as Avell as in the case of an adult. The previous case of Stone v. Dennison, 13 Pick. 1, Iiad also taken tlie ground that an infant could be liable on a special contract for neces- saries, in every case where the consideration was thus subject to proof, and it was thus said that a contrary rule might subject the infant to hardship in cases where, by the terms of the contract, the price of the necessaries was less than could be recovered on a quantam valebat. It has, however, been observed of the first of these cases (by Mr. Wallace, in the note to Tucker v. Moreland, supra), that it is " inconsistent with principle, as, in a count on a special and express contract, all or none should be recovered ;" and it may be remarked of the reason given in Stone v. Dennison, that the general rules of law as to in- fants are made for their protection, and lose their application when their reason ceases : Jefibrd's Adm. v. Ringgold, 6 Ala. 584. — r. 339 321 PARTIES TO CONTEACTS. [lECT. VIII. ing, even to lay out upon necessaries the money bor- rowed (z). In Oliver v. Woodroffe, just cited (a), the infant had given a cognovit (which, as you are no doubt aware, is an acknowledgment by a defendant that an action r*^991 brought against him is rightly brought, *and that a named sum is due to the plaintiff), and it was admitted that it was given for necessaries sup- plied to the infant. It was argued, that as an action might have been brought against him for the necessaries, he ought to be allowed to confess that action, in order to save further expense. But the Court of Exchequer, after considering the point, held that the cognovit could not be enforced against the infant, because by that means a minor would be made to state an account, which the law will not allow him to do, so as to bind himself. If an action be brought against him, it is for the jury to determine the reasonableness of the demand. Again, the general principle being that an infant shall be bound by no contract which is not beneficial to him ib), it is held that he can engage in none in which the per- formance of the contract is secured by a penalty ; for that it cannot be for his advantage to become subject to a penalty ; and, therefore, though the old books lay it down that he may bind himself by a deed to pay for necessaries (c), yet it is clearly settled that he cannot do so by a bond containing a penalty [d). A variety : (2) Earle i-. Peale, 1 Salk. 386 ; Probart v. Knouth, 2 Esp. 472, note. But see as to the rule of Equity in such case, Marlow v. Pitfield, 1 P. VVms. 658. (a) Note (x). (6) See Stikeman v. Dawson, 16 L. J. (Ch.) 205 ; and for instances of con- tracts for work and wages held void as containing stipulations not for the benefit of the infant, see E. v. Lord, 12 Q. B. 757; 17 L. J. (M. C.) 181 ; Meakin v. Morris, 12 Q. B. D. 852; 53 L. J. (M. C.) 72. (c) Com. Dig. Infant, B. 5. (d) Ayliff D. Archdale, Cro. Eliz. 92 ) Corpe v. Overton, 10 Bing. (25 E.C. L. E.) 252. 340 LECT. VIII.] INFANTS. 322 of other examples miglit be given ; but I think pj^ooo-i *wliat I have said sufficient to exphiin the gen- '- -^ eral nature of an infant's liability and exemption from liability. This rule that an infant shall not be allowed to bind himself by contracts made in trade, although, looking at it with regard to the present state of education and society, it may appear not to be so requisite as once it was, yet looking at it upon general principles, it is capa- ble of being defended by some strong arguments. The consequences of failure in trade ai"e so fatal, not merely to the property, but often to the reputation of the un- successful trader — and a failing trader is so often, in his struggles to save himself from utter shipwreck, and to keep up a good appearance in the sight of the world, induced to have recourse to disingenuous and reprehen- sible expedients — that possibly, upon reflection, it may be thought not unwise to guard young persons up to a certain point against the accidents and temptations of mercantile speculation, and to insure to them, as far as possible, the advantage of starting fair in life with for- tunes unimpaired and characters unblemished. How grievous would be the situation of a young person be- ginning life at one-and-twenty an undischarged bank- rupt. Against such a chance, the law, as it now stands, effectually guards him ; for, as an infant cannot make himself liable on trade contracts, so he ^cannot ^0.9^-1 be adjudicated a bankrupt for a trade debt (e). '- " -^ (e) Ez parte Jones, In re Jones, 18 Ch. Div. 109; 50 L. J. (Ch.) 673; R. v. Wilson, 5 Q. B. D. 28 ; 49 L. J. (M. C.) 13 ; Belton v. Hodges, 9 Bing. (23 E. C. L. R.) 365. Where, however, there lias been an express representation by an infant carrying on a trade, that he was of full age, the person to whom such representation has been made and who has been deceived by it into giv- ing tlie infant credit, may prove for the loss which he has sustained under an adjudication of bankruptcy made against the trader after he has attained full age. Ex parte Unity Banking Association, 3 De G. & J. 63 ; 27 L. J. (Bkptcy.) 33 ; Ex parte Jones, In re Jones, supra. 341 324 PARTIES TO CONTRACTS. [lECT. VIII. Now, therefore, the general rule being that an infant cannot bind himself except for necessaries, next comes the question — Suppose he do, in fact, enter into a con- tract for something not falling under that denomination, what will be the consequence ? The answer to this is, now, that no action can be maintained against him dur- ing his infancy upon any such contract, nor afterwards, not even although by fraudulently representing himself to be of age he induced the j)laintiff to contract with him (/). But formerly there was this to be added, that the contract was not absolutely void, but voidable ; and therefore, when he arrived at the age of twenty-one, he might confirm it, and, if he did so, he would become liable to an action upon it (g)} [I will exemplify this by the case of Goode v. Har- (/) Bartlett v. Wells, 31 L. J. (Q. B.) 57 ; De Eoo v. Foster, 12 C. B. N. S. (104 E. C. L. R.) 272. {g) Goode v. Harrison, 5 B. & Aid. (7 E. C. L. E.) 147 ; Ex parte Unity Banking Ass., supra. ' A defendant is not estopped from setting up infancy as a defence to an ao tion on a contract, by his fraudulent representation that he was of full age Merriam v. Cunningham, 11 Cush. 40. But see Prouty v. Edgar, 6 Iowa, 353 Kemp V. Cook, 18 Md. 130. As to contracts of infants being only voidable and not void, see Strain v Wright, 7 Ga. 568; Slocum v. Hooker, 13 Barb. 536; Levering v. Heighe, 2 Md. Ch.81; West v. Penny, 16 Ala. 186; Eidgeley u. Crandall, 4 Md. 435 Cummings v. Powell, 8 Tex. 80; Ferguson v. Bell, 17 Mo. 347. The deed ot an infant is voidable — not void. It is good, therefore, until disaffirmance Vxn Nostrand v. Wright, Hill & Den. 260; Voorhies v. Voorhies, 24 Barb. 150; Pitcher v. Laycock,'7 Ind. 898 ; Peterson v. Laik, 24 Mo. 541 ; Babcock V. Doe, 8 Ind. 110; Palmer v. Miller, 25 Barb. 399; Wellborn v. Rogers, 24 Ga. 558 ; Stuart v. Baker, 17 Tex. 417 ; GrifBth v. Schwenderman, 27 Mo. 412; Mustard v. Wohlford, 15 Gratt. 329; Johnson v. Rockwell, 12 Ind. 76; Magee V. Welsh, 18 Cal. 155; Blankenship v. Stout, 25 111. 132; Jenkins v. Jenkins, 12 Iowa, 195 ; State v. Plaisted, 43 N. H. 413. An infant's voidable deed may be ratified not only by express affirmance, but by omission to disaffirm within a reasonable time: Hastings v. Dollarhide, 24 Cal. 195. Also by any deliber- ate act by which he takes benefit under it, or recognizes its validity after he comes of age : McCormic v. Leggett, 8 Jones, 425. — s. 342 LECT. VIII.] INFANTS. 324 rison (i).^ A person of the name of Goode entered into a trading partnership with an infant under the age of twenty-one, named Bennion ; a third person, named Harrison, supplied them with goods, and after Bennion came of age, he took no step to signify to the world that he disclaimed the connection with Goode, but, on the contrary, allowed it to be supposed that he was still hi partnership with him. After this, Harrison sup- plied Goode with more articles, and brought an action against him for the price, jointly with Bennion, as a co-defendant. Bennion set up his infancy, and urged that, as an infant cannot bind himself by a contract made in the course of trade, his agreement, while under age, to become Goode's partner, was not binding upon him, and consequently, that not being Goode's partner, he was not liable for the articles supplied to him. On the other hand, it was urged that, admitting the part- nership contracted while he was an infant to be voida- ble, it was nevertheless in his option, when he arrived at his full age of one-and- twenty, to adopt and confirm it ; that by his conduct he had done so ; and that con- sequently he was liable for the goods supplied after- wards. The question was argued, as you may suppose, with great ability, the counsel being Mr. Baron Parke and the late Mr. Justice Littledale. The Court decided in favour of the plaintiff. The principle is clearly and strictly laid down in the judgment of Mr. Justice Bay- ley : — " It is clear," says his Lordship, " that an infant may be in partnership. It is true that he is not liable for contracts entered into during his infanc}" ; but still (i) 5 B. & Aid. (7 E. C. L. K.) 147 ; Unity Banking Ass. v. King, supra. ^ The portion of the text included within brackets is from the sixth Eng- lish edition of the work. Though now obsolete in England {infra *325) it lias been deemed proper to insert it, together with the valuable notes of Mr. Rawle and Judge Sharswood, as still applicable in this country. 343 324 PARTIES TO CONTRACTS. [lECT. VTII. he may be a partner. If he is in point of fact a part- ner during his infancy, he may, when he comes of age, elect whether he will continue that partnership or not If he continue the partnership, he will then be liable as a partner.^ If he dissolve the partnership, and if when of age he take the proper means to let the world know that the partnership is dissolved, then he will cease to be a partner." It is easy to apply this mode of reasoning to any other sort of contract (ii). Thus, if he makes a lease of his land, which is binding if for his benefit, but not otherwise, and after majority accepts rent, and by other acts affirms the contract, this is strong evidence that the lease is beneficial and binding (iii) ; or if an infant lessee remains in possession of the house or land demised, and pays rent after majority, he cannot re- pudiate it afterwards, but it is confirmed from the beginning (iv). This head of law has been much and elaborately considered in several recent cases, in which the liability of an infant holder of railway shares to pay the calls upon them has been in dispute. The argu- ments and judgments in these cases (which are cited (ii) Southerton v. Whitelock, 1 Str. 690. (iii) Shep. Touch. 268; Ashfieldti. Ashfield, Sir W. Jones, 157. (iv) Ketsey's case, Cro. Jac 320 ; Holmes v. Blogg, 8 Taunt. (4 E. C. L. R.) 35. See ex parte Taylor, in re Burrows, 25 L. J. (Bkptcy.) 85. ' A question may here arise as to the extent of the liability for the pre- vious debts of the firm, and in Miller v. Sims, 2 Hill (S. C.) 479, it was held that inasmuch as in general one partner could bind the firm by contracts made without the knowledge of the other, to say that one may enter into or affirm a partnership without incurring these liabilities, would be to say that one may aflirra a contract of partnership and disaffirm that which is inseparably incident to it, and the defendant, who had, by his acts of re- ceiving partnership funds, &c., affirmed a partnership, begun while he wa« yet an infant, was therefore held liable on a note given by the other partner, before such affirmation, of which he had no knowledge, and which he re- fused to pay when informed of it. A decision, apparently to the contrary, in Crabtree v. May, 1 B Mon. 289, will, on examination, be found to have turned ou the insufficiency of the replication. — B. 344 LECT. YIII.] INFANTS. 324 below) demand a very careful perusal, and will amply repay it in the very full view which they give of the j^rin- ciple now under discussion, and the application of it. Assuming, according to the opinion of the Court of Ex- chequer, that the question of the infant's liability does not depend conjointly upon the Act creating the com- 2>any, and upon the Companies Clauses Consolidation Act, 8 & 9 Vict., c. 16, but upon the Common Law, it has been repeatedly decided, that, w^here an infant be- comes the holder of shares by his own contract and subscription, he i?, prima facie liable to pay the calls (v) ; he may repudiate that contract and subscription, and if he does so while an infant, although he may on arriv- ing at full age affirm his repudiation, or receive the profits, it is for those who insist upon his liability to make out these facts (vi). Infants having become shareholders in railway companies, have been held liable to pay calls. " They are purchasers," said the Court of Exchequer in the London and North AVestern Kailway Company v. M'Michael, "who have acquired an interest not in a mere chattel, but in a subject of a permanent nature, either by contract with the Company, or by devolution from those who have so contracted, and with an obligation attached to it w^hich they are bound to discharge, and have been thereby placed in a situation analogous to an infant purchaser of real estate, who has taken possession, and thereby become liable to all the obligations attached to the estate ; for instance, to pay rent in case of a lease rendering rent, or to pay a fine due on an admission in the case of copyhold, to which an infant has been admitted (vii), unless they have (v) London and Nortli Western Ry. Co. v. M'Michael, 20 L. J. (Ex.) 97 ; 5 Ex. 114. See Cork and Bandon Ry. Co. v. Cazenove, 10 Q. B. (59 E. C. L. R.) 935. (vi) Newry and Enniskillen Ry. Co. v. Coombe, 3 Ex. 565. (vii) Evelyn v. Chichester, 3 Burr. 1717. 345 324 PARTIES TO CONTRACTS. [lECT. VIII. elected to waive or disagree to the purchase altogether, either during infancy or after full age, at either of which times it is equally competent for an infant so to do." Thus, where there has been no waiver or repudiation, the infant continues liable to pay the calls ; and where the infant avoids the contract for purchase during minority, he is not liable. If, after full age, the party repudiates a contract made during his infancy, it may be gathered from what has been said, and indeed hardly requires stating, that he must do so within a reasonable time after he comes of age (viii). Plowever, in order to prevent persons from inconsiderately con- firming contracts made by them during infancy, and to obviate the danger of attempts to foist such confirma- tion on them by false evidence, it is enacted, as we have already seen (ix), by 9 Geo. IV., c. 14, s. 5, that no action shall be maintained whereby to charge any per- son upon any promise made, after full age, to pay any debt contracted during infancy, or upon any ratification after full age of any promise or simple contract made during infancy, unless such promise or ratification shall be made, by some writing, signed by the party to be charged therewith.^] (viii) Dublin and Wicklow Ey. Co. v. Black, 22 L. J. (Ex.) 94; 8 Ex. 181, B. c. (ix) See ante, p. *152. ^ It has been seen in a former part of these Lectures, that any acknowledg- xnent, not inconsistent with a promise to pay, such as a partial payment, will be sufficient to remove the bar of the Statute of Limitations. It is not so, however, with respect to the ratification of contracts made during infancy. There must either be a direct affirmation fas in the case cited, supra, by con- tinuing the business, or, in the case of a chattel, by retention of the possession, selling it again, or the like : see Lawson v. Lovejoy, 8 Me. 405 ; Aldrich v. Grimes, 10 N. H. 194; Kline v. Beebe, 6 Conn. 494; Boyden v. Boyden, 9 Mete. 519 ; Thomasson v, Boyd, 13 Ala. 419; Meriweather v. Herran, 8 B. Mon. 162) ; or an express promise to pay, made voluntarily, with full knowl- edge of the liability thus incurred, made to the party himself or his agent, 346 LECT. VIII.] INFANTS. 325 *Kecently, however, the law as to the void- p.;.o9--| ability and confirmation or ratification of con- '- -^ tracts made by infants has been considerably altered by the "Infants Eelief Act, 1874" (37 & 38 Vict., c. 62), which was passed on the 7th Aug., 1874. The 1st and 2nd sections of that Act are as follows : " (1.) All contracts, whether by specialty or by sim- ple contract, henceforth entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than con- tracts for necessaries), and all accounts stated with infants, shall be absolutely void : Provided always, that this enactment shall not invalidate any con- tract into which an infant may, by any existing or future statute, or by the rules of common law or equity, enter, except such as now bylaw are voidable. " (2.) No action shall be brought whereby to charge any person upon any promise made after full age and not to a mere stranger having no interest : Hinely v. Margaritzr, 3 Pa. St. 423 ; Ford v. Phillips, 1 Pick. 202 ; Peirce v. Tobey, 5 Mete 168 ; Hale v. Gerrish, 8 N. H. 374; Millard v. Hewlett, 19 Wend. 301 ; AVilcox v. Eoath, 12 Conn. 551 ; a mere acknowledgment or partial payment will not suffice : Goodsell V. Myers, 3 Wend. 481 ; Eo])bins v. Eaton, 10 N. H. 561 ; Hinely v. Margaritz, supra; for the law will imply no promise in the case of an infant, as has been seen, except for necessaries. — K. Tlie special contract of a minor is ratified by his continuance in it for a month after his majority, and cannot afterwards be avoided : Forsyth v. Hast- ings, 27 Vt. 646 ; New Hampshire Ins. Co. v. Noyes, 32 N. H. 345 ; Hodges v. Hunt, 22 Barb. 150 ; Little v. Duncan, 9 Kich. 55 ; Baxter v. Bush, 29 Vt. 465 ; Hartman v. Kendall, 4 Ind. 403 ; Emmons v. Murray, 16 N. H. 385. A voidable contract of an infant cannot, after his coming of age, be ratified by a mere acknowledgment of the debt, but a direct promise to pay or a direct con- firmation will be evidence of such ratification : Conklin v. Ogborn, 7 Ind. 553 ; Eeed v. Boshears, 4 Sneed, 118 ; Chandler v. Glover, 32 Pa. St. 509 ; Mayer v. McLure, 36 Miss. 389 ; Vaughan v. Parr, 20 Ark. 600 ; Proctor v. Sears, 4 Allen, 95. As to what will amount to ratification : West v. Penny, 16 Ala. 186 ; Lev- ering V. Heighe, 2 Md. Ch. 81 ; Williams r. Mabee, 5 N. J. Eq. 500 ; Miles v. Lingerman, 24 Ind. .S85 ; Petty v. Roberts, 7 Bush, 410 ; Highley v. Barron, 49 Mo. 103 ; Baker v. Kennett, 54 lb. 82.— s. 347 325 PARTIES TO CONTRACTS. [lECT. VIII. to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract {h) *made during infancy, L "■*-' whether there shall or shall not be any new consideration for such promise or ratification after full age" {%). It will be observed on looking at the above Act, that, although the 1st section only makes certain sj^ecified con- tracts void, and that therefore there are still some con- tracts left which are voidable, yet inasmuch as the 2nd section prevents any action being brought upon any ratification made after full age of any promise or con- tract made during infancy, such voidable contracts can- not form the subject of any action against the infant when he has attained full age. For if voidable they must be ratified to make them valid, and the ratification is now worthless ; therefore as far as the infant's liabil- ity is concerned, there seems no practical distinction between void and voidable contracts. We shall see, however, that there may be a very important distinction between them, in considering the lial)ility of the party with whom the infant contracts. Now, then, such being the effect of an infant's con- tracts with regard to the infant himself, it remains only to say a word or two as to the effect of those which are still voidable on the other ^contracting party. L *^ -J And, as to him, the rule is {j), that he is bound {h) The words " any promise or contract " in this section include a promise of marriage, and therefore a ratification of such a promise after majority af- fords no longer a ground of action on breach of the promise (Coxhead v. Mul- lis, 3 C. P. D. 439 ; 47 L. J. (Q. B., etc.) 761). There may, however, be a fresh promise made after full age, which will be binding (Ditchman v. Worrall, 5 C. P. D 410 ; 49 L. J. (Q. B., etc.) 688) ; and whether what has taken place subsequently to the coming of age amounts to a ratification or a fresh promise, is a question for the jury (Northcote v. Doughty, 4 C. P. D. 385; Ditcham v. Worrall, supra). (i) We have already seen (ante, p. *lo2) that under this section a ratification made after the Act of a contract made in infancy before the Act is void. (j) This seems unaltered by the Act in respect of those contracts which it 348 LECT. Yin.] INFANTS. 327 though the infant is not ; for, to use the words in "wliich the rule is stated, in Bacon's Ab., " Infancy," I. 4, — " Infancy is a personal privilege of wliich no one can take advantage but the infant himself; and, therefore, though the contract of the infant be voidable, yet it shall bind the person of full age; for, being an indul- gence which the law allows infants, to secure them from the fraud and imposition of others, it can only be in- tended for their benefit, and is not to be extended to persons of the years of discretion, who are presumed to act with sufficient caution and security. And, were it otherwise, this privilege, instead of being an advantage to the infant, would in many cases turn greatly to his detriment."^ Thus, for instance, in Holt v. Ward {Ic), a gentleman of full age had promised to marry a minor. It was decided that she might maintain an action against him for breach of promise, though he could not have done so had she refused to perform her side of the con- tract.^ Again (/), an infant was allowed *to p^Qoon maintain an action on a contract to purchase a '- ^ still leaves voidable. Those which it makes void are of course a nullity from the beginning, but there seems nothing in the Act to alter the infant's privi- leges, or the liability of the other party in respect of those contracts which are still voidable. {k) 2 Str. 937. (I) Warwick v. Bruce, 2 M. & Sel. 205 ; but gimre as to his being able to do so, since the Infant's Relief Act, in this particular case, the contract being for goods supplied or to he supplied, other than necessaries. ^ Infancy is a personal privilege, and cannot be set up by third persons to avoid the contracts of the infant: Alsworth v. Cordtz, 31 Miss. 32; Wilson v. Porter, 13 La. An. 407 ; Jones v. Butler, 30 Barb. 641. The contract of an infant may be avoided by those only, besides himself, who are privy in blood or estate : Nelson v. Eaton, 1 Eed. 498. — s. * The case was four times argued : see the report in Fitzgib. 175, 275, and the decision was recognized by Lord Hardvvicke, in Harvey v. Ashley, 3 Atk. 610, and on this side of the Atlantic, the decisions in Hunt v. Peake, 6 Cow. 475 ; Willard v. Stone, 7 lb. 22, and Cannon v. Alsbury, 1 Marsh. 76, were based on its authority. — r. 349 828 PARTIES TO CONTRACTS. [lECT. VIII. growing crop of potatoes, on which no action could have been maintained against him.^ I now come to tlie second class of persons on whose capacity to contract I think it necessary to observe. I mean that of married women. But their capacity in this respect has been so much affected by recent Acts of Parliament that it will be necessary to consider first the state of the Common Law upon the subject, and then the successive alterations engrafted on that law by the Acts referred to. ^ But liberal as is the law towards infants, it does not allow them to retain possession of property, and still repudiate the contract by whicli that posses- sion has been obtained ; and as by the avoidance of the contract the property revests in the vendor, the latter may bring trover, replevin, or detinue : Mills f. Graham, 4 B. & P. 140 ; Badger v. Phinney, 15 Mass. 359 ; Boyden v. Eoy- den, 9 Mete. 519 ; JefFord v. Ringgold, 6 Ala. 544. And so with respect to real estate ; he cannot disaffirm securities given for the purchase-money, and still claim the land under his deed : Weed v. Beebe, 21 Vt. 495. If, however, the goods liave been wasted, sold or otherwise disposed of by the infant after the coming of age, tliese acts, as we have seen, amount to an affirmation of the contract, and he will then, the bar of infancy being tlius removed, be liable upon the contract ; but if the goods have been wasted or sold during infancy, neitlier trover nor detinue will lie, for a refusal after age to deliver, when he has not the goods, is no conversion : Fitts v. Hall, 9 N. H. 441 ; Boody v. Mc- Kenney, 23 Me. 517 ; and detinue does not lie where the goods liave been parted with in a manner authorized by law : Pool v. Adkisson, 1 Dana, 110. Upon the subject of an infant's liability for torts, the manner in which he is made a party to an action, and many other important branches of this sub- ject, the student is again referred to the note to Tucker v. Moreland, 1 Am. L» C— R. An infant cannot rescind a contract, and bring an action to recover the value of the property parted with, without restoring to the other party the value with which he parted: Bailey v, Bamberger, 11 B. Mon. 113; Womack v. Womack, 8 Tex. 397. In a suit by an infant for the consideration of a con- tract avoided by him he must show a return of the property sold to him, if it remains in his possession. But its entire consumption or great deterioration by him is no defence to the action : Price v. Furman, 27 Vt. 268 ; Manning v. Johnson, 26 Ala. 446; Craighead v. Wells, 21 Mo. 404; Burns v. Hill, 19 Ga. 22; Aldrich v. Abrahams, Hill & Den. 423; Tipton v. Tipton, 3 Jones, 552; Pitcher v. Laycock, 7 Ind. 398 ; Wilhelm v. Hardman, 13 Md. 140 ; Kilgore v. Jordan, 17 Tex. 341 ; Mustard v. Wohlford, 15 Gratt. 329 ; Locke v. Smith, 41 N. H. 346 ; Pursley v. Hays, 17 Iowa, 311.~B. 350 LECT. VIII.] MARRIED WOMEN. 328 Now a contract by or with a married woman is one of two sorts : it is either a contract which she entered into before her marriage, and which continued in exist- ence afterwards ; or it is a contract which she entered into subsequently to her marriage. Now, with regard to the former description of con- tracts, by the Common Law,^ unquahfied by the provi- sions of recent legislation, upon the marriage, the bene- fit of, and the liability to, the wife's contracts made before marriage, vest in the husband, and continue vested in him during the continuance of the marriage (m). If she die before they are enforced, and he survive her, he is entitled to *the benefit of such contracts, n::QOQ-i not in his own right, but as her administra- ^ J tor {n)^ and is liable to be sued on them, not in his individual capacity, but as his wife's administrator. Thus, in an action on a promissory note, brought by the administrator of Ann Hart, it was proved that it was made by the defendant and delivered by him to Ann Hart, who was then a /erne sole, but who afterwards married William Hart (not her administca- (m) Mitchinson v. Hewson, 7 T. E. 348 ; Com. Dig. tit. " Baron and Feme," E. 3. See Milner v. Milnes, 3 T. R. 627 ; Sel. N. P. 243, 13th ed. (n) Betts V. Kimpton, 2 B. & Ad. (22 E. C. L. R.) 273. ' The reader will note, perhaps with surprise, that no reference is made in the succeeding pnges to American statutes affecting married women. But these have become so numerous during the last thirty-five years, and vary so greatly in the different States, that it does not appear practicable to reduce them to anything like order or to make an epitome of them which will be at all complete and accurate, within the limits necessarily prescribed in this work. » Collins V. Hoxie, 9 Paige, 81 ; Hunter v. Hallett, 1 Edw. Ch. 388 ; Coleman V. Waples, 1 Harring. 196. So that if the husband die without having taken out letters of administration, his administrator cannot recover her choses in action, but administration must be taken out to the wife : Betts v. Kimpton, 2 B. & Ad. (22 E. C. L. R.) 273 ; Squib r. Wyn, 1 P. Wms. 378 ; Stewart v. Stewart, 7 Johns. Ch. 229. If, however, the husband has taken out letters of administration to his wife's estate, and die before its full administration, his representative is, in the absence of any statutory enactment, entitled to administration de honis nou : Donnington v. Mitchell, 2 N. J. Eq. 243. — R. 351 329 PARTIES TO CONTRACTS. [lECT. VIII. tor), and died intestate in his lifetime. The Court held that the note clearly did not become the property of William Hart, but passed to the plaintiff as her ad- ministrator ; and that the husband, not having obtained administration to his wife, had no interest in the note (o). If she survive him, her right to the benefit of, and her liability upon, such contract revives, assuming always that nothing has been done to put an end to the contract during the continuance of the marriage (p).^ "With respect to debts due to the wife dum sola, the husband," says Lord Ellenborough, *'is her irrevocable attorney, if I may say so : and if he reduce them into possession (o) Hart V. Stephens, 6 Q. B. (51 E. C. L. R.) 937. [p] Rumsey t;. George, 1 M. & Sel. 176; Fitzgerald v. Fitzgerald, 8 C. B. (65 E. C. L R.) 692. 1 Blount V. Bestland, 5 Ves. Jr. 315; Schuyler v. Hoyle, 5 Johns. Ch. 196; Hayward v. Hayward, 20 Pick. 517 ; Strong v. Smith, 1 Mete. 476; Weeks v. Weeks, 5 Ired. Eq. Ill, where tlie previous cases in Korth Carolina are noticed. The result briefly is, at Common Law, that for all the debts of the wife, contracted before marriage, no matter how improvident they may be, the husband is personally liable during coverture, and no longer, and this though he may not have received a cent by her; and, on the other hand, upon her death, his personal liability for her debts contracted before marriage is wholly wiped out, though he may have received a fortune by her. The apparent injustice of this latter rule, than which nothing is better settled (Tabb V. Boyd, 4 Call, 453 ; Buckner v. Smyth, 4 Desaus. 371 ; Witherspoon v. Dubose, 1 Bai. Eq. 166), has often been strongly urged, and equity been in- voked to modify it, and Lord Nottingham is reported to have said, with some earnestness, that " he would alter the law on that point ;" but in Heard v. Stamford, Cas. Temp. Talbot, s. c. 3 P. Wms. 411, the Chancellor said, "It is extremely clear that by law the husband is liable for the wife's debts only during the coverture, unless the creditor recovers judgment against him in the .wife's lifetime, and I do not see how anything less than an act of Parliament can alter the law. If I relieve against the husband because he had sufficient assets with his wife wherewith to satisfy the demand in question, by the same reason, where a fevie indebted dum sola marries, bringing no fortune to her husband, and judgment is recovered against the husband, after which the wife dies, I ought to grant relief to the husband against such judgment, which yet is not in my power, consequently there can be no ground for a court of equity to interpose in the present case; and if the law, as it now stands, be thought inconvenient, it will be a good reason for the legislature to alter it, but till that is done, what is law at present must take place." See to the same effect the remarks of Lord Redesdale in Adair v. Shaw, 1 Sch. & Lef. 243. — R. 352 LECT. VIII.] MARRIED WOMEN. 329 during the coverture, they become his debt, but until that is done they remain the debt of the wife ; and all the cases agree that in the event of his death, they would survive to her." *The Court, therefore, held ^.^^^^ that the husband alone could not be petition- •- -• ing creditor upon the bankruptcy of a debtor of his wife, who became her debtor before her marriage (q). And the Court of Exchequer, upon the same ground of survivorship in the wife, decided that if the husband became bankrupt, his assignees could not sue in their own names alone upon a promissory note given to the wife before marriage (r)} During the marriage the husband might, as I have said, sue or be sued upon his wife's contracts, made while she was a single woman ; but if he sued he must join her as a co-plaintiff; and if he were sued, she must be joined as a co-defendant (s).^ There is one case, in- deed, in which the husband may sue upon a contract made with her while single, without joining her as a co-plaintiff. This is where a bill of exchange or promis- sory note has been given to her; in which case his suing upon it in his own name is an election to take it to himself and a dissent to his wife's having any inter- est in it, an election which, as will be seen hereafter, a husband has, at Common Law, with respect to his wife's choses in action, and which the peculiar nature of a {q) Riimsey v. George, supra. (r) Sherrington v. Yates, 12 M. & W. 855 ; Dingley v. Robinson, 26 L. J. (Ex.) 00. (s) Rnmsey v. George, 1 M. & Sel. 180; Milner v. mines, 3 T. R. 627; Pittara V. Foster, 1 B. & C. (8 E. C. L. R.) 248. 1 Shay V. Sessamen, 10 Pa . St. 432; Eshelman v. Shuman, 13 Pa. St. 563.— R. ' And even this although the husband make a subsequent promise ; unless, of course, such promise be based upon a new consideration of benefit to himself or inconvenience to the creditor : Waul v. Kirkman, 13 Sm. & M. 599. — B. 23 353 330 PARTIES TO CONTRACTS. [lECT. VIII. promissory note enables him to make, by merely suing r*QQi-i ^^ ^^' ^^^ ^^^ ^^^^ could not, '''after marriage, L J endorse the note, and it would be nugatory for the husband to endorse to himself. But he may, if he pleases, leave it as it is, and then the remedy on it sur- vives to the wife (t)} Such, then, is briefly the Common Law on the sub- ject of the wife's contracts made before marriage. We have now to consider the alterations made by the legis- lature. The first Act affecting the present topic is the "Married Women's Property Act, 1870" (33 & 34 Vict., c. 93), by sect. 12 of which "a husband shall not, by reason of any marriage which shall take place after this Act has come into operation, be liable for the debts of his wife contracted before marriage, but the wife shall be liable to be sued for, and any property belong- ing to her for her separate use shall be liable to satisfy, such debts as if she had continued unmarried." By sect. 15 this Act came into operation at the time of the passing of the Act, viz., the 9th of August, 1870 ; and inasmuch as " an Act which comes into ojDeration on a given day becomes a law as soon as the day com- mences" {u), the marriages affected by sect. 12 are tliose (0 Gaters v. Madeley, 6 M. & W. 423. Sec M'Neilage v. Holloway, 1 B. & Aid. 218 ; Howard v. Cakes, 3 Ex. 136. (m) See per Lush, J., in Tomlinson v. Bullock, 4 Q. B. D. 230, 232; 48 L. J. (M. C.) 95, 96. See also Wilberforce on Statute-s, Ch. IV., " The Operation of Statutes," p. 154. ^ But this decision of Lord Ellenborough has been overruled, and it is now settled that a promissory note is, in the ordinary course of tilings, a chose in action, and there is nothing to take it out of the common rule that choses in uctJon survive to the Avife after the death of her husband, unless he lias' re- duced them into pos.session ; and it is believed to be a rule without exception that a luisband can not sue alone to recover any chose in action belonging to the wife before marriage : Fenner v. Plaskett, Moore, 422 ; Riclnirds v. Rich- ards, 2 B. & Ad. (22 E. C. L. R.) 447 ; Gaters v. Madeley, 6 M. & W. 427; Sherrington v. Yates, 12 lb. 855; Hart v. Stepliens, 6 Q. B. (51 E. C. L R.) 937 ; Morse v. Earl, 13 "VVend. 271 ; Clapp v. Stoughton, 10 Pick. 470; John- 8ton I'. Pasteur, C. & N. 464. — r. 354 I LECT. VIII.] MARRIED WOMEN. 831 which took place on or after tlie 9tli of August, 1870, and up to the time when the *Act amending p^Qooi tliis Act, and which will be noticed immediately, came into force. The effect of this enactment is to re- lieve the husband, where the marriage took place dur- ing the above period, from all personal liability in re- spect of his wife's contracts made before the marriage. The Avife, however, is made liable in respect of her separate estate, and execution can issue against her as if she were sole, and the husband need not be joined with her in the action {x). Under sect. 11 a married woman may now maintain an action in her own name for the recovery of any property belonging to her be- fore marriage, and which her husband shall, by writing under his hand, have agreed with her shall belong to lier after marriage as her separate projoerty. But this Act was amended by the " Married Women's Property Act (1870) Amendment Act, 1874" (37 & 38 Yict., c. 50), which was passed on the 30th of July, 1874; the first section of which enacts that "so much of the Married Women's Property Act, 1870, as enacts that a husband shall not be liable for the debts of his wife contracted before marriage is repealed, so far as respects marriages which shall take place after the passing of this Act, and a husband and wife married after the passing of this Act may be jointly sued for any such debt" (y). The 2nd ^section of the Amend- r^qoo-i ment Act, however, limits the husband's liabil- ity for such debts to the extent only of his interest in his wife's property, as defined in sect. 5 of the same Act (z). The last-mentioned section also provides that (.r) Williams v. Mercier, 9 Q. B. D. (C. A.) 337; 51 L. J. (Q. B.) 594. (y) Tlie husband can only be sued jointly with his wife, and is not liable in a separate action after her death. Bell v. Stocker, 10 Q. B. D. 129, 52 L. J. (Q. B.) 49. (2) Where, after the passing of the Amendment Act of 1874, an English- 355 333 PAETIES TO COXTEACTS. [lECT. VIII. when the husband after marriage pays any debt of his "wife, or has a judgment bond fide recovered against him in any such action as is in that Act mentioned, then to the extent of such payment or judgment the husband shall not in any subsequent action {a) be liable. In the case, therefore, of marriages which have taken place on or after (b) the 30th of July, 1874, up to the time when the Married Women's Property Act, 1882, came into force, the husband is liable for the wife's ante-nuptial contracts to the extent of the property that he has got through her. r:^ooA-\ *We now come to the last and most import- ant of all the Acts upon this subject. I mean the Married Women's Property Act, 1882 (45 & 46 Yict., c. 75), sect. 25 of which fixes the date of the commencement of the statute on [c] the ]st day of January, 1883. This Act, by its 22nd section, repeals the Married Women's Property Act, 1870, and the Amendment Act of 1874, " provided that such repeal shall not aifect any act done or right acquired while either of such Acts was in force, or any right or lia- bility of any husband or wife married before the com- mencement of this Act, to sue or be sued under the provisions of the said repealed Acts or either of them for or in respect of any debt, contract, wrong, or other man married in England a woman who had contracted debts while a feme sole in Jersey, it was held that, although by the law of Jersey a husband is liable for the ante-nuptial debts of his wife and that Act did not apply to Jersey, yet that in an action brought in England against the husband and wife for those debts, the husband was liable to the extent only of the assets derived from his wife and specified in sect. 5 of the Act. De Greuchy v. Wills, 4 C. P. D. 362 ; 48 L. J. (Q. B., etc.,) 726. (a) The words "any subsequent action" mean any action commenced sub- sequently to the time of bringing the action in which judgment has been re- covered, and not merely any action commenced subsequently to the recovery of the judgment : Fear v. Castle, 8 Q. B. D. 380, 51 lu J. (Q. B.) 279. (b) See ante, p. *331. (c) See ante, p. *331. 356 LECT. VIII.] MARRIED WOMEN. 334 matter or thing whatsoever for or in respect of which any such right or liability shall have accrued to or ajrainst such Jiusband or wife before the commencement of this Act." This, Act, therefore, only affects a wife's ante-nuptial debts and liabilities where the marriage has taken place on or after the 1st of January, 1883. With regard to such cases, sect. 13 enacts as follow^s : — " A woman after her marriage shall continue to be liable in respect and to the extent of her separate prop- erty for all debts contracted, and all contracts entered into or wrongs committed by her before her marriage, including any sums for which she ma}'" be liable as a contributory, either before '^or after she has r^oo^n been placed on the list of contributories, un- der and by virtue of the Acts relating to joint-stock companies ; and she may be sued for any such debt and for any liability in damages or otherwise under any such contract, or in respect of any such' wrong; and all sums recovered against her in respect thereof, or for any costs relating thereto, shall be payable out of her se23arate property ; and, as between her and her hus- band, unless there be any contract between them to the contrary, her separate property shall be deemed to be primarily liable for all such debts, contracts, or wrongs, and for all damages or costs recovered in respect thereof: Provided always, that nothing in this Act shall operate to increase or diminish the liability of any woman married before the commencement of this Act for any such debt, contract, or wrong, as aforesaid, except as to any separate property to which she may become entitled by virtue of this Act, and to which she would not have been entitled for her separate use under the Acts here])y repealed or otherwise, if this Act had not passed." By sect. 14, " a husband shall be liable for the debts 357 335 PARTIES TO CONTEACTS. [lECT. VIII. of his wife contracted, and for all contracts entered into and wrongs committed by her, before marringe, includ- ing any liabilities to which she may be so subject under the Acts relating to joint-stock companies as aforesaid, to the extent of all property whatsoever belonging to his wife which *lie shall have acquired or be- L -I come entitled to from or through his wife, after deducting therefrom any payments made by him, and any suras for which judgment may have been bond fide recovered against him in any proceeding at law, in re- spect of any such debts, contracts, or wrongs, for or in respect of which his wife was liable before her marriage as aforesaid ; but he shall not be liable for the same any further or otherwise ; and any Court in which a hus- band shall be sued for any such debt shall have power to direct any inquiry or proceedings which it may think proper for the purpose of ascertaining the nature, amount, or value of such property : Provided always, that nothing in this Act contained shall operate to increase or diminish the liability of any husband mar- ried before the commencement of this Act for or in re- spect of any such debt or other liability of his wife as aforesaid." Sect. 15, regulating the cases where both husband and wife may be sued for such causes of action, enacts that " a husband and wife may be jointly sued in respect of any such debt or other liability (whether by contract or for any wrong) contracted or incurred by the wife before marriage as aforesaid, if the plaintiff in the action shall seek to establish his claim, either wholly or in part, against both of them ; and if in any such action, or in any action brought in respect of any such debt or liabilitv against the hupband alone, it is *not *^ J found that the husband is liable in respect of any property of the wife so acquired by him or to which 358 LECT. VIII.] MAERIED WOMEN. 337 he shall have become so entitled as aforesaid, he shall have judgment for his costs of defence, whatever may be the result of the action against the wife if jointly sued with him ; and in any such action against husband and wife jointly, if it appears that the husband is liable for the debt or damages recovered, or any part thereof, the judgment to the extent of the amount for which the husband is liable shall be a joint judgment against the husband personally and against the wife as to her sepa- rate property ; and as to the residue, if any, of such debt and damages, the judgment shall be a separate judgment against the wife as to her separate property only." The general result, therefore, of the Act is to limit the husband's liability on the wife's contracts made before the marriage to the property which he has acquired through his wife. And unless he has so acquired property she is made solely responsible, but her liability is limited to the amount of her separate estate. But the Act seems to diminish considerably the probability of the husband acquiring any property through his wife ; for sect. 2 is as follows : — " Every woman who marries after the commencement of this Act shall be entitled to have and to hold as her separate property and to dispose of in ^manner aforesaid (d) all real and personal property (e) L'^'^^^J which shall belong to her at the time of marriage, or shall be required by or devolve upon her after mar- riage, including any wages, earnings (/), money, and property gained or acquired by her in any employment, (d) I. e., to dispose of it by will or otherwise in the same manner as if she were 3, feme sole. See s. 1, sub-s. (1). (e) By 6. 24, "the word 'property' in this Act includes a thinsj in action." (/) See, as to the words " wages, earnings," including the stock in trade and capital necp,ssary for the making those wages and earnings, Ashworth v. Out- ram, 5 Ch. Div. 923; 46 L. J. (Ch.) 687. 359 838 PAETIES TO CONTRACTS. [lECT. VUI. trade, or occupation, in which she is engaged, or which she carries on separately from her husband (g), or by the exercise of any literary, artistic, or scientific skill." This section, therefore, not only re-enacts sect. 1 of the Act of 1870, but entirely alters the old law as to the effect of marriage in transferring the wife's property to the husband, and unless there is a settlement, or she makes a special gift to him, he takes nothing. It appears, therefore, from the above that the ante- nuptial contracts of a wife may be governed by one of four states or conditions of the law, according to the date of the marriage. I. If the marriage took place before the 9th of August, 1870, then the Common Law still governs such contracts. P^ooq-| *II« If tlie marriage took place on or after '- ^ the 9th of August, 1870, and before the oOth of July, 1874, then such contracts are regulated by the Common Law as modified by the " Married Women's Property Act, 1870." III. If the marriage took place on or after the 30th of July, 1874, and before the 1st of January, 1883, then such contracts are regulated by the Common Law as modified by the " Married Women's Property Act, 1870," amended by the " Married Women's Property Act (1870) Amendment Act, 1874." IV. If the marriage took place on or after the 1st of January, 1883, then such contracts are regulated by the "Married Women's Property Act, 1882," and so much of the Common Law as that Act leaves in force. Next as to contracts entered into by a married woman {g) As to what amounts to carrying on a trade separately from the husband, see Lovell v. Newton, 4 C. P. D. ". 360 LECT. VIII.] MAERIED WOMEN. 339 subsequently to Ler marriage; and here, too, the law has been so much altered by the Married Women's Property Acts of 1870 and 1882 that it will be neces- sary to state the law as it stood before those Acts, and then tlie successive alterations made by them in that law. Now, it is the general rule of the Common Law, that a married woman cannot bind herself by any contract made during the coverture ; not, as in the case of an infant, from any presumption of incapacity, but because she has no separate existence, her husband and she being, in contemplation of *law, but one j^erson. r:i:o4Q-i The great case on this subject is Marshall v. Kutton (A), which was decided by all the Judges in England, except Mr. J. Buller, and is one of the last, perhaps the very last, instance of the practice which was so common in the early ages of the law, ac- cording to which, anyone of the superior Courts before which a very important point arose, requested the as- sistance of the Judges of the other two, to hear it dis- cussed, and to assist in deciding it. In this case it was held that she cannot bind herself by any conti'act made during her coverture, although she was separated from her husband, and had a separate maintenance : nor can she where living in open adultery, although the contract was for goods sold to her, and the vendor knew not of her marriage {i). Her husband being a foreigner, re- siding abroad, is not a sufficient circumstance to make her liable {k) ; nor will his having been a bankrupt who absconded from his creditors, and was residing abroad when the contract was made, render her liable to be sued upon it (/). (A) 8 T. R. 545 ; Lewis v. Lee, 3 B. & C. (10 E. C. L. R.) 291. {i) Meyer t'. Haworth, 8 A. & E (35 E. C. L. R.) 467. {k) Stretton v. Busnach, 1 Ring. N, C. (27 E. C. L. R.) 139. (/) Williamson v. Dawes, 9 Bing. (23 E. C. L. R.) 292. 361 840 PAKTIES TO CONTEACTS. [lECT. VIII. In a word, the person who contracts with a married woman, as far as any right against her personally at Common Law is concerned, relies upon her bare word ; ^'^411 ^^^ ^^^^ ^^ ^^^ recognised there *as a person capable of binding herself by any contract whatever,^ save only in a few cases, which I will now specify. The first of these is where her husband is civilly dead : for instance, where he is under sentence of trans- portation, or penal servitude. In such a case, to pre- vent her from contracting, would be to deprive her too of all civil rights, since the husband, being civilly dead, is no longer capable of contracting for her (m). This is a very old doctrine, having been first established in the 2nd Hen. IV., in the Year Book of which year we find that Belknap, the Lord High Treasurer, was banished to Gascony till he should obtain the King's favour, and his wife. Lady Belknap, brought an action in the Common Pleas, which seems to have been the (m) Ex parte Franks, 7 Bing. (20 E. C. L. K.) 762; Marsh v. Hutchinson, 2 B. & P. 226. ' WJiile it is correct that a married woman cannot, by a contract made dur- ing coverture, bind herself, yet the husband may be bound by contracts made by }ier, in cases where it appears that she acted as his agent, or under an authority from him, express or implied. It is well settled tliat a married woman cannot bind herself to answer in damages by reason of her joining with her liusband in covenants in a deed conveying her estate ; but it seems not to be exactly determined whether these covenants will have any eftect upon her by way of estoppel, such an effect having been recognised in some cases: Hill's Lessee v. West, 8 Ohio, 220 ; Massie v Sebastian, 4 Bibb, 43(5 ; Fowler v. Sliearer, 7 Mass. 21 ; Nash v. Spofford, 10 Mete. 192; and denied in others: Jackson v. Vanderheyden, 17 Johns. 167; Carpenter v. Schermerhorn, 2 Barb. Ch.314; Wadleigh v. Glines, 6 N. H. 18; Den v. Demarest, 21 N. J. 541.— R. The deed of a married woman is void : Matthews v. Puffer, 19 N. H. 448; Concord v. Bellis, 10 Cush. 276; Chandler v. McKinney, 6 Mich. 217 ; Glyde V. Keister, 1 Grant, 4G5 ; 32 Pa. St. 85. A woman after lier coverture ceases cannot make a valid legal promise to pay a debt which she incurred during coverture : Goulding v. Davidson, 28 Barb. 438. — S. 362 LECT. VIII.] MAEKIED WOMEN. 841 first instance of such a proceeding by a married woman ; for it struck the lawyers of those days with so much surprise that they commemorated it by a Latin distich, which Lord Coke has thought it worth his while to preserve in the 1st Institute. It is in the old monkish style, and is not only in hexameter measure, but in rhyme also ; the words are " Ecce modo mirum, quod foemina fert breve Kegis, Non nominando virum conjunctum robore legis." Another case is where the husband is a foreigner belonging to a country at war with Great Britain. *In such case, as he cannot lawfully contract r::.:c>49-| or sue in England, it seems to be admitted that his wife may do so as if she were unmarried {71) } (n) Barden v. Keverberg, 2 M. »&; W. 61 ; see De Wahl v. Braune, 25 L. J. (Ex.) 343 ; 1 H. & N. 178. ^ Derry v. Duchess of Mazarine, 1 Kayin. 147. This exception, however, to the general rule which denies the efficacy of the contracts of married women, is not confined merely to the case of the wife of an alien enemy, nor, indeed, as it would seem by the late authorities, at least in this country, to the case of an alien at all. Some distinctions were at one time taken, which have not latterly been recognised. Thus it has been held that where the husband was a foreigner, and had never been in the country, the wife could sue and be sued on her contracts : Walford v. Duchess of Pienne, 2 Esp. 554 ; De Gaillon V. L'Aigle, 1 B. & P. 357 ; Gregory v. Paul, 15 Mass. 30 ; Eobinson v. Key- nolds, 1 Aik. 174 ; but not where the husband had ever resided in the country : Kay V. Duchess of Pienne, 3 Campb. 123 ; or was a natural born subject, though he might have deserted her and resided abroad for years : De Gailloa V. L'Aigle, Boggett v. Frier, 11 East, 301 ; Franks v. Duchess of Pienne, 2 Esp. 587. The distinction thus taken between an alien and a subject seems to have proceeded on the supposition that in the case of the latter, there might be an animus revertendi, but the later cases have judiciously neglected such a dis- tinction, and it is now well settled, at least in this country, that where the ■wife has been left by her husband — has traded as a feme sole — and has ob- tained credit as such, she is liable for her debts, and on the other hand may acquire property of her own : Rhea v. Ehenner, 1 Pet. 105; Bean v. Morgan, 4 M'Cord, 148; Starret v. "Wynn, 17 S. & R. 133; Gregory v. Pierce, 4 Mete. 478 ; Arthur v. Broadnax, 3 Ala. 557 ; James v. Stewart, 9 lb. 855 ; and it perhaps would not be inconsistent with reason to lay down as a rule, that where the wife has obtained credit as a feme sole, and her husband i" absent 363 342 PARTIES TO CONTRACTS. [lECT. VIII. By the custom of the city of London, a married woman is allowed to be a trader in her individual capa- city, and may sue alone in the city courts on contract?? made b}^ her in the course of such trade; but it Avould seem that, even in this case, if she had brouglit au action in the Courts at Westminster, it would have been necessary to make her husband a party to it.^ This subject is learnedly discussed in Beard v. Webb (o). Even if a married woman has been divorced a mensd el ihoro, which before the stat. 20 & 21 Vict., c. 85, s. 7 legalised the separation of the parties, but left the mar- riage bond uusevered, the same rule a])plied. Now, however, instead of a divorce a tnensd et thoro, a decree for a judicial separation is pronounced in those cases in. "which the limited divorce before mentioned was obtain- able, and has the same consequences {p) ; but in ad- Co) 2 B. Mitchell V. Kingman, 5 Pick. 431 ; Rice v. Peet, 15 Johns. 503; Gran^ w. Thomjison, 4 Conn. 203; 1 Story'8 Eq. Jur. I 225.— R. 376 LECT. IX.] INSANE PERSONS. 357 other persons, but it was said that they should bind the lunatic himself, after he had recovered the use of his reason ; " for," said the old lawyers, " a man cannot remember what he did when he was out of his mind, and consequently cannot recollect whether he did this or that particular act, or entered into this or that par- ticular contract." And they actually carried this so far, that it became a maxim that a man should not be heard to stultify himself, and it is laid down as such in the 405th and 406th sections of Littleton, and in Stroud V. Marshall (a), where the opinion of Fitzherbert to the contrary, in his Natura Brevium, was overruled. However, in more modern times, the common sense of the Courts began to be shocked by this doctrine, and Sir William Blackstone, in his Comme7itaries {h), argues with great force of reasoning against it. In the later cases of Yates v. Boen (c) and Faulder v. Silk [d), it seems to have been discarded ; and there is no doubt now that the lunacy of one of the contracting parties may be shown by himself if sued upon a contract entered into while *he was in that condition, poco-i However, it would not be for the lunatic's own benefit to prohibit him absolutely from binding himself by any contract whatever. Such a prohibition might prevent him from obtaining credit for the ordinary necessaries of life ; and there are modern cases in wliich contracts evidently of a fair and reasonable description entered into with a lunatic have been held binding on him, and have been enforced. In the case of Baxter V. Earl of Portsmouth (e), an action was brought against the Earl of Portsmouth for the hire of several carriages. It was proved that the carriages were suit- (a) Cro. Eliz. 398. {d) 3 Camp. 126. (6) 2 Bla. Com. 291. (t) 5 B. & C. (11 E. C. L. E.) 170. (c) Stra. 1104. 377 358 PARTIES TO CONTRACTS. [lECT. IX. able to Lis rank and fortune, and that the price charged for them was a fair and reasonable one ; but, on the other hand, it appeared that an inquisition had issued out of Chancery under which the Earl was found to have been insane for a period long anterior to the time at which the carriages in question were supplied to him. The L. C. J. Abbott, before whom the case was tried, directed the jury, that, as the articles hired were suit- able to the station and fortune of the defendant, and as the plaintiffs, at the time of making the contract, had no reason to suppose him of unsound mind, and could not be charged with practising any imposition upon him, they were entitled to recover; and the jury ac- cordingly found a verdict for the plaintiffs. Mr. (after- r^Q-qn wards Lord) ^Brougham moved in the next term to set it aside, but the Court supported the direction of the Lord Chief Justice. In a subsequent case of Brown v. Jodrell (/), the lunatic was the chairman of a society called the Athe- naion, and he had concurred in ordering work and goods to be supplied to them ; for these Lord Tenter den held that he might be sued by the person who had sup- plied them. From these decisions it is plain that a lunatic's contracts are binding in many instances ; and some treatises suggest that he stands on the same foot- ing with an infant, and is liable only for necessaries. But this is, I think, not quite so; nor would it be reasonable that it should be so ; for, where a lunatic is permitted to go about and appear to the world as a per- son of sane mind, it would be very hard indeed to pre- vent persons who had supplied him with goods under that impression at a fair price, from recovering because the articles were not necessaries. And, in the case I (/) M. & M. (22 E. C. L. R.) 105 ; 3 Car. & P. (14 E. C. L. R.) 30, S. G. See also Dane v. Kirkwall, 8 Car. & P. (34 E. C. L. R.) 679. 378 LECT. IX.] INSANE PEKSONS. 359 have just cited, of Brown v. Jodrell, an infant could not, I tliiuk, have been held liable for goods supplied to the Athenaion. A later case in which the subject has been canvassed, is that of Tarbuck v. Bispham {g), in which one of the questions was, whether a lunatic laboured under the same incapacity to bind himself by stating an account as I have '^already shown r:!:opQ-| you that an infant does. The case went off upon a different point, but the Court said, that, had it become material they would have granted a rule for the purpose of considering it. It seems clear that a lunatic is liable upon an executed contract for articles suitable to his degree, furnished by a person who did not know of his lunacy, and practised no imposition upon him.^ Where A. ig) 2 M. & W. 2. ' In the recent case of Molton v. Camroux, 2 Exch. 501, which was an action to recover money paid by a lunatic for the purchase of an annuity, the jury found that the transaction was a fair and business one, and made by the de- fendants in good faith, and in ignorance of the plaintiff's unsoundness, and the Court in giving judgment for the defendant, thus reviewed the cases: " The plaintiff's counsel distinguished the cases of Brown v. Jodrell, 3 Car. & P. (14 E. C. L. K.) 30, and Baxter v. The Earl of Portsmouth, 2 C. & P. (12 E. C. L. E.) 178; 5 B. & C. (11 E. C. L. K.) 170, and other cases of that 6ort, on the ground that necessaries furnished to a lunatic were an exception to the general doctrine that he could not make a contract ; and he cited the judgment of the Lord Chief Baron, in the case of Gore v. Gibson, as showing a distinction between express and implied contracts, and deciding that all ex- press contracts were void, if the parties to them were incapable of making a contract. On the other hand, it was argued by the defendant's counsel, that there was a distinction between contracts executed and executory ; that executory contracts could not be enforced, but that executed contracts could not be disturbed, if made in good faith and without notice of the incapacity ; and he called our attention to this, that all the cases cited were cases where damages for the breach of an executory contract were in question, but that no case had yet decided, that an executed contract, if perfectly fair and bond fide, could be questioned on the ground of the unsoundness of mind of both parties; and he cited the case of Howard v. The Earl of Digby, 2 CI. & Fin. 63 i ; Wil- liams I'. Wentworth, 5 Beav. 325; and Selby v. Jackson, 6 Beav. 192, to show 379 360 PARTIES TO CONTRACTS. [lECT. IX. advanced money on mortgnge to B., a lunatic, but did not know B.'s state, and took no advantage of him, he that the House of Lords in the first ca,se and Lord Langdale in the two last, had recognized the liability of lunatics or iheir estate, in respect of contracts bond fide, acted upon. The case of Niell v. Morley, 9 Ves. Jr. 478, before Sir William Grant, to the same effect, had been cited before, by the counsel for the plaintiff. "As far as we are aware, this is the first case in which it has been broadly contended that the executed contracts of a lunatic must be dealt with as absolutely void, however entered into, and although perfectly fair, bond fide, reasonable, and without notice, on the part of those who have dealt with the lunatic. "On looking into the cases at law, we find that, in Brown r. Jodrell, Lord Tenterden says, ' I think the defence (of unsoundness of mind) will not avail, unless it be shown that the plaintiil' imposed on the defendant.' In Eaxter v. The Earl of Portsmouth, 5 B. & C. (11 E. C. L. R.) 170 (the Nisi Prius authority of which is in 2 C. & P. ( 12 E. C. L. R.) 178), Abbot C. J., with the concurrence of the rest of the Court, laid down the same doctrine. In Dane V. Viscountess Kirkwall, Mr. Justice Patteson, in directing the jury, said, ' It is not suflicient that Lady Kirkwall was of unsound mind, but you must be [satisfied that the plaintiff knew it and took advantage of it.' " We are not disposed to lay down so general a proposition, as that all executed contracts bond fide entered into must be taken as valid, though one of the parties be of un.sound mind ; we think, however, that we may safely conclude, that when a person. ap{)arently of sound mind, and not known to be otherwise, enters into a contract for tiie purchase of property, which is fair and bond fide, and which is executed and completed, and the property, the Bubject-matter of the contract, has been paid for and fully enjoyed, and cannot be restored so as to put the parties in statu quo, such contract cannot after- wards be set aside, either by the alleged lunatic, or those who represent him. And this is the present case, for it is the purchase of an annuity which has ceased." Tliis judgment was subsequently affirmed on error in the Exchequer Chamber, 4 Exch. 18. The same principle was adopted in Pennsylvania, in Beats v. See. 10 Pa St. 60 (following La Rue v. Gilkyson, 4 lb. 375), where it was held tliat the administrator of a lunatic could not, in the absence of fraud or knowledge of his state of mind, or such conduct on the part of the lunatic from whicli his disease might fairly be inferred or suspected, recover back the price of mer- chandise sold to him, even though it was unsuited to the object for wliich it was purchased, and above market price. In Massachusetts, however, in tlie case of Seaver v. Phelps, 11 Pick. 304, which was trover for a promissory note, pledged by the plaintiff while in- sane, to the defendant, the Court were, on belialf of the latter, requested to charge, tiuit aitiiough tiie plaintifl" migiit have been insane at the time of making the contract, yet that if the defendant were not apprised of that fact, or had no rejison, from the conduct of the plaintiff or from any other source 380 LECT. IX.] INSANE PERSONS. 360 ■was held entitled to a decree of foreclosure (A). It seems equally clear that he is not liable when the other (h) Campbell v. Hooper, 24 L. J. (Ch.) 644. See also Drew v. Nunn, 4 Q. B. D. 60 ; 48 L. J. (Q. B.) 591, a case cited more fully post, at the end of this Lecture. to suspect it, and did not overreach or impose upon him, or practice any fraud or unfairness, the contract could not be annulled ; but the Court refused so to charge, and the jury having found for the plaintiff, the Supreme Court af- firmed the judgment on the authority of Thompson v. Leach, 3 Mod. 310, and regarded the law on the subject of contracts, made by lunatics, as being on the same footing as those of an infant ; and it was said that the case of Baxter v. The Earl of Portsmouth, supra, was, notwithstanding the dicta in the case, de- cided mainly on the ground of the carriages being suitable to the defendant's condition in life, and the opinion of Lord Tenterden, in Brown i: Jodrell, supra, as to the materiality of the absence of imposition, was disapproved. It may be remarked, hoAvever, that Thompson v. Leach is not an authority for Buch a point, further than that, "the grants of infants, and of persons non com- pos mentii, are parallel both in law and reason," and this is a well-settled rule of the law of real estate, the grants of both being voidable : F. N B. 202 n ; Mitchell V. Kingman, 5 Pick. 431; AUis v. Billings, 6 Mete. 419 (see the termination of the case in 2 Cush. 19, by which it appears that the party was, at times at least, only feigning insanity) : Fitzgerald v. Reed, 9 Sm. & M. 102. The recent case of Hallett v. Oakes, 1 Cush. 296, was an action to recover the value of professional services in a habeas corpus to procure the liberation of one who was insane and remanded as such, and a recovery was allowed on the ground of such services being classed with necessaries, and having been ren- dered by the plaintiff in good faith, and on due inquiry into the grounds and causes of the confinement. — r. Where a person apparently of sound mind and not known to be otherwise, fairly and bond fide purchases property, and receives and uses the same, pav- ment cannot be refused either by the alleged lunatic or his representatives: Matthiessen R. Co. v. M'Mahon, 38 N. J. o37. As to the liability of insane persons for necessaries, see Ex parte Northington, 1 Ala. (S. C.) 400 ; Sawyer V. Lufkin, 56 Me. 308. See on the subject of insanity generally, Dennett v. Dennett, 44 N. H. 531 ; Bond V. Bond, 7 Allen, 1 ; Hovey v. Chase, 52 Me. 304 ; Maddox r. Simmons, 31 Ga. 512; Somers v. Pumphrey, 24 Ind. 231; Cain v. Warford, 33 Md. 23; Hall V. Unger, 2 Abb. 507 ; Staples v. Wellington, 58 Me. 453 ; Boyd v. Boyd, 66 Pa. St. 283; Musselman r. Cravens, 47 Ind 1.— s. In Kendall i'. May, 10 Allen, 59, a wealthy lunatic was sued for board, ser- vices rendered, and expenses incurred on his behalf. Among the latter were charges for pleasure trips made by plaintiff and his wife with the lunatic at his invitation. The court said : "The judge properly refused to instruct the jury that the journey taken by the defendant out of the State was not reason- ably necessary for him, and that the plaintiff could not properly take him on 381 360 PARTIES TO CONTRACTS. [lECT. IX. contracting party has taken advantage of his lunacy : indeed, that was the decision in Levy v. Baker, reported in a note to Brown v. Jodrell (^). The law upon the subject has also been reviewed by the Court of Exchequer in the case of Molton v. Cam- roux (k). This was an action for money had and re- ceived, brought by the administration of an intestate, to recover from an annuity society the price paid by the intestate for annuities granted by the society. The ground was, that the intestate was not of sound mind when he paid the money. The elaborate judgment de- livered by Pollock, C. B., will amply repay an attentive perusal. "As far *as we are aware," the Court L -I said, " this is the first case in which it has been broadly contended that the executed contracts of a lunatic must be dealt with as absolutely void, however entered into, and althougli perfectly fair and bond fide, reasonable, and without notice on the part of those who have dealt with the lunatic ;" and the Court refused to (i) M. & M. (22 E. C. L. E.) 106, n. {k) 2 Ei. 487. a journey for pleasure out of the State without the sanction of his former guardian or of the courts or of his relations. . . . The plaintiff incurred the risk of being able to satisfy the jury that the charges were reasonable and proper. The fact that the former guardian had provided rooms and neces- saries for the ward, was not material. ... It appears that he is capable of en- joying, to some extent, many pleasures and luxuries, and that he has prefer- ences as the place of his residence and his associates. Humanitj"^ and hia right to his own property require that he should not be restrained or thwarted in his preferences and enjoyments more than is necessary for his own welfare." Among the later American cases see Titcomb v. Vantyle, 84 111. 371 ; McCor- mick V. Tittler, 85 lb. 62 ; Willemin v. Dunn, 93 lb. 511 ; Hospital v. Fairbanks, 129 Mass. 78 ; Matthiessen R. Co. v. McMahon, 38 N. J. 537 ; Blakeley v. Blake- ley, 33 N. J. Eq. 502 ; Young v. Stevens, 48 N. II. 133 ; Ins. Co. v. Hunt, 79 N. Y. 541 ; Kneedler's Appeal, 92 Pa. St. 428 ; Wirebach i-. Bank, 97 lb. 543 ; Ashcraft v. De Armand, 44 Iowa, 229 ; Burgess v. Pollock, 53 lb 273 ; Rusk v. Fenton, 14 Bush, 490 ; Northington, ex parte, 37 Ala. 496 ; Henry v. Fine, 23 Ark. 417 ; Henderson v. McGregor, 30 Wis. 78 ; Wilder v. Weakley, 34 Ind. 181. 382 LECT. IX.] INSANE PERSONS. 361 allow the money to be recovered back. The case was carried by a writ of error into the Court of Exchequer Chamber {I), and that Court laid down (affirming the judgment of the Court below), that when the lunatic's state of mind was unknown to the other contracting party, and no advantage was taken of him, and the contract was not merely executory, but executed in the whole or in part, and the parties cannot be restored to their original position, the contract is not void on ac- count of lunacy. A subsequent case of Beavan v. M'Donnell (m) differed in some degree from the one last cited. The action was brought to recover a deposit paid on a contract for the purchase of real estate, the title of which the plaintiff was to accept unless he ob- jected within a specified time. It w^as admitted upon the pleadings, that at the time the plaintiff entered into the contract he was a lunatic, and ^therefore r:i-.o/-.9-| incapable of contracting, or of understanding the meaning of a contract, or of managing his affairs, and that the contract was of no use or benefit to him, but that his state was unknown to the defendant. The Court said that the contract was entered into by the defendant fairly and in good faith, and without knowl- edge of the lunacy ; and being a transaction completely executed, so far as the deposit was concerned, the de- fendant had done all he ought to do to make it his own. The plaintiff had had all he bargained for — the power of buying an estate, and a title established in a given time, on payment of the residue of the purchase- money. The Court thought the case came within the principle upon which Molton v. Camroux was decided, and that it made no difference that it was admitted that (l) Molton V. Camroux, 4 Ex. 17 ; Campbell v. Hooper, 24 L. J. (Cli.) 644. (m) 23 L. J. (Ex.) 94 ; 9 Ex. 309, S. C. See 23 L. J. (Ex.) 326 ; 10 Ex. 184 : Moss r. Tribe, 3 Fost. & Finl. 9. 383 362 PARTIES TO CONTRACTS. [lECT. IX. the plaintiff was incapable of understanding the mean- ing of contracts ; whereas in the former case it was not necessary to be inferred that he was incapable of know- ing the nature of his acts. As a lunatic is liable upon such contracts entered into by himself, so he is liable for necessaries furnished to his wafe (n), he having be- come lunatic since the marriage; for, by contracting the relation of marriage, a husband takes on himself the duty of supplying his wife with necessaries ; and if he does not perform that duty, either through his pj-o/^o-i *own fault or in consequence of a misfortune, such as lunacy, the wife has by reason of that relation an authority to procure them herself, and the husband is responsible for what is so supplied. But it would seem to be the better opinion that an executory contract entered into by a lunatic of non-sane mind at the time he entered into it, cannot be enforced against him ; sed qucere? {n) Read v. Legard, 6 Ex. 636. * In Wirebach v. First National Bank, 97 Pa. St. 543, Trunkey, J., laid dowE the rule very broadly. He said, " Tliere can be no binding executory agree- ment where one of the parties is bereft of reason ; a capacity to contract is absolutely necessary. An insane person is incapable of committing a crime or making a contract. The question now presented," he continued, " is : Will an action lie on the accommodation endorsement of a promissory note by a lunatic? . . . The holder of a madman's note stands in no better position than the payee. An acconmiodation maker or endorser, in fact, is a surety for the principal debtor, and where he is an infant or an insane person, he or his i-epresentatives may defend as in other forms of contract. We are not persuaded that commercial or public interests require an adjudication that a lunatic who signs a contract as surety, or as accommodation maker or en. dorser, is liable for the debt of another man." See also Beavan v. M'Donnell, 9 Exch. 309 ; Loomis v. Spencer, 2 Paige, 158 ; Skidmore v. Romaine, 2 Bradf. (N.Y.) 122. A person mentally incapable of entering into a contract cannot contract a valid marriage ; but it must appear beyond question that the party was an absolute lunatic, and even in this case the contract is capable of ratification when the sanity of the party is restored. Fraud or coercion brought to bear upon a party of weak mind is sufficient ground for the rescission of a marriage 384 LECT. IX.] INTOXICATED PERSONS. 363 As the law regarding tlie contracts of lunatics has exerienced some alteration, so also has the law regard- ing contracts entered into by the class of persons whom I shall next specify, — I mean persons deprived of the use of their ordinary understanding by intoxication. It has been always admitted that if one man, by contrivance and stratagem, reduced another to a state of inebrity, and induced him while in that state, to enter into a contract, it would be void upon the ordinary ground of fraud ; for the liquor would be in such case an instrument used by the one party to assist him in his plot against the other (o),^ But it has been sup- posed that, where the drunkenness of the contracting party was occasioned, not by the fraud of the contractee, . but by his own folly, he could not in sucli a case set it up as a defence ; since, by doing so, he would take ad- vantage of his own wrong. You will see this view taken in Co. Litt. 247 a, and even so *late as rH:of?4n Cory V. Cory {p). There are, however, several later cases, in which it seems to have been treated as erroneous. In Pitt v. Smith (q), issue had been joined s upon the question whether there was an agreement between the plaintiff and defendant for the sale of an estate. It was proved that in fact there was an agree- ment signed, but one of the parties when he signed it was intoxicated : Lord Ellenharough said : — " There' was no agreement between the parties, if the defendant (o) Gregory v. Fraser, 3 Camp. 454 ; Brandon v. Old, 3 Car. & P. (14 E. C. L. R.) 440. (p) 1 Ves. 19. {q) 3 Camp. 33. in cases where the incapacity of the party is not, of itself, sufficient to induce the court to avoid the contract : Wharton & Stille's Med. Jur., ^ 17, 18, and cases cited. ' Hotchkiss V. Fortson, 7 Yerg. 67 ; Harvey v. Pecks, 1 Munf. 518. — R. 25 385 364 PARTIES TO COXTEACTS. [lECT. IX. was intoxicated in the manner supposed, wlien lie signed this paper. He had not an agreeing mind. Intoxica- tion is good evidence upon a plea of non est factum to a deed, of non concessit to a grant, or non assumpsit to a promise ;" and he directed a nonsuit, which the full Court afterwards refused to set aside. In Fenton v. Holloway (r) Lord Ellenborough again ruled in the same manner {s)} And it may be considered as now (r) 1 Stark. (2 E. C. L. E.) 126. (s) See bentance v. Poole, 3 Car. & P. (14 E. C. L, K.) 1 ; Cooke v. Clay- worth, 18 Yes. 12. ^ In Gore v. Gibson, 13 M. & W. 625, Pollock, C. B., referred to the con- clusion drawn from the autliorities by Chancellor Kent, in his Commentaries (vol. ii. p. 451), viz. : that no contract made by a person in that state, when he does not know the consequences of his acts, is binding upon him; and added, that it seemed to be in accordance with reason and justice. It is im- material, moreover, wliether the drunkenness, if carried to that extent, were voluntary, or the result of design in the other party : Barrett v. Buxton, 2 Aik. 167 ; Wigglesworth v. Steers 1 Hen. & Munf. 70; Prentice ?•. Achorn, 2 Paige, 30 ; Cooke r. Clayworth, 18 Ves. Jr. 15. And on the other hand, it is equally well settled, that mere intoxication, unless carried so far as to benumb the understanding, will not of itself constitute a defence to the performance of a contract, or afford a ground for its rescission if executed : Belcher v. Belcher, 10 Yerg. 121 ; Pittenger v. Pittenger, 3 N. J. Eq. 156; French v. French, 8 Ohio, 214; Jenncrs v. Howard, 6 Blackf 240. Whether the intoxication was 8o complete as to destroy " the agreeing mind," is, of course, a question for the jury : Burroughs r. Richman, 13 N. J. 238. If, however, it were proved that advantage was taken of a person excited by drink, though not to such an extent as to impair all his reasoning faculties, it is apprehended that at law the case might be brought within the ground of fraud, although the contract- ing party might not have been directly incited to drink by the other ; and it is well settled that equity will afford relief under such circumstances : Rey- nolds V. Waller, 1 Wash. 164 ; Crane v. Conklin, 1 N. J. Eq. 346 ; Hutchinson V. Tindall, 3 N. J. Eq. 357 ; Pittenger v Pittenger, lb. 15G ; Conant v. Jackson, 16 Vt. 335 ; Campbell v. Spencer, 2 Binn. 133 ; and so when the mind is en- feebled by habitual intoxication: Wilson v. Bigger, 7 W. & S. 124 ; Morrison r. M'Leod, 2 Dev. & Bat. Eq. 221. It is evident, however, that although one may, by reason of drunkenness, be incapable of contracting, yet his contract may be ratified by his retaining the subject of the contract when sober : Gore V. Gibson, supra. — r. Drunkenness does not render a deed made under its influence absolutely void, but only voidable : so long as the grantor in the deed acquiesces in it, it cannot be impeached by third persons on the ground that it was executed by 386 LECT. IX.] ALIENS. 3G4 settled, that intoxication avoids a contract when it is so comjDlete as to prevent a man from knowing what he is about : in that state he is, in common parlance, " not himself," nor are his acts his own. Thus, in Gore v. Gibson (t), where the endorsee of a bill sued the en- dorser, who pleaded drunkenness at the time of the endorsement, it was held that this *was a good phopr-i answer to the action. " It is just the same," said Mr. Baron Alderson, in that case, " as if the de- fendant had written his name upon the bill in his sleep, in a state of somnambulism." Some of the dicta, how- ever, of the judges in the case last cited, which seem to go the length of holding such a contract absolutely void, have not been supported in all their fulness ; and it has been recently held that the contract of a man too drunk to know what he is about, is voidable only, and not void, and therefore capable of ratification by him when he becomes sober {u). I have now to direct your attention to aliens. And we again subdivide this class into two minor ones, of alien friends, and alien enemies. With regard to alien (0 13 M. & W, 623. (u) Matthews v. Baxter, L. K. 8 Ex. 132 ; 42 L. J. (Ex.) 73. him when drank : Eaton v. Perry, 29 Mo. 96. If intoxication is carried so far that the reasoning powers are destroyed, the contract is void ; but when it falls short of this, the contract will not be avoided, unless undue advantage has been taken by one party of the condition of the other : Birdsong v. Birdsong, 2 Head, 289; Mansfield v. "VVatson, 2 Iowa, 111 ; Johnson i'. Rockwell, 12 Ind! 76. One found by inquisition to be an habitual drunkard is thereby rendered incompetent subsequently to enter into a contract which will bind his estate : Imhoff V. Witmer, 31 Pa. St. 243. See, generally, Henry v. Ritenour, 31 Ind! 136; Caul kins !•. Fry, 35 Conn. 170; Phelan v. Gardner, 43 Cal. 306; Reins- kopf V. Rogge, 37 Ind. 207 ; Joest v. Williams, 42 Ind. 565 ; Johns v. Fritchey; 39 Md. 258. [McSparran v. Neeley, 91 Pa. St. 17 ; Miller r. Finley, 26 Mich. 249 ; Scanlan v. Cobb, 85 111. 296. A drunkard is liable for necessaries fur- nished for his support: Meares, in re, 10 Ch. Div. 552; Sawyer v. Lufkin, 56 Me. 309 ; Darby v. Cabanne, 1 Mo. App. 126.]— 8. 387 365 PARTIES TO CONTRACTS. [lECT. IX. friends, they have a right to contract with the subjects of this country, and may sue on such contracts in the Courts of this country [v), whether the contract was made in England or abroad; with this distinction, that if it was made in England, it is expounded according to the law of England ;^ if abroad, according to the law of the country where it was made [x). But, p.j.o/^..-| ^whether it was made abroad or in England, the person who sues on it here must take the remedy here as he finds it, although, perhaps, abroad there might have been a more advantageous one. Thus, for instance, to an action on a bill of exchange, the French period of limitation is five years, ours is six ; now, if an action be brought here on a French bill, the courts here will not adopt the French period of limita- tion, but our own, and so the payee may recover here at any time within six years, though in France, where the bill w^as made, he must have brought his action within j^ye; the reason for which is, that the period of limitation within which a remedy is to be pursued is part and parcel of the remedy itself, and, though a (r) Bac. Abr. Aliens, D. ; Com. Dig. Alien, C. 5. (x) For the application of the principle in the case of bills of exchange, see now 45 & 46 Vict., c. 61 (Bills of Exchange Act, 1882), s. 72. Where the subject-matter of the contract is real property, there the Ux locireisitce applies wherever the contract is made. See Adams v. Clutterbuck, 10 Q. B. D. 403 ; 52 L. J. (Q. B.) 607. ' Provided the subject of the contract be personal property. But it is well settled on this side of the Atlantic that any interest or title to real estate can only be acquired or transferred according to the lex loci rei siUp, and not ac- cording to the lex loci contractus : Cutter v. Davenport, 1 Pick. 81 ; Hosford v. Nichols, 1 Paige, 220 ; Chapman v. Robertson, 6 Paige, 630 ; Wills v. Cowper, 2 Ohio, 124. Such, too, seems to be the law in England : Robinson v. Bland, 1 W, Black. 246; 2 Burr. 1079; Scott v. Allnutt, 2 Dow & CI. 412; Fergusson on Mar. & Div. 395 ; Curtis v. Hutton, 14 Ves. Jr. 541 ; Birtwhistle v. Vardill, 5 B. & C. (11 E. C. L. R.) 438; 9 Bligh. 32. Some of the foreign jurists, however, do not recognise this distinction between movables and immovables. See Story's Conflict of Laws, ^ 52, &c. — B. 388 LECT. IX.] ALIENS. 366 contract is interpreted by the law of the country where it is made, the remedy must be pursued as it exists in the country where the suit is brought (3/). I have rather digressed, for the purpose of pointing out these two rules to you. They are two of r*qz:»7-i *the most celebrated principles of our law, and there is scarcely any question arising on a foreign con- tract which they will not solve {z)} So far with regard to contracts made with alien friends ; now with regard to alien enemies, i. e., aliens whose government is at war with this country. All contracts made with them are wdiolly void (a).^ In- deed, in one case it was decided, that, if the contract was made during war, it does not become capable of (y) Huber v. Steiner, 2 Bing. N. C. (29 E. C. L. R.) 202 ; Cocks v. Purdaj, 5 C. B. (57 E. C. L. E.) 860; Leroux v. Brown, 12 C. B. (74 E. C. L. R.) 801 ; 22 L. J. (C. P.) 1 ; Ruckmaboye v. Mottichund, 8 Moo. P. C. 4. See, also. Pe Greuchy v. Wills, 4 C. P. D. 362; 48 L. J. (Q. B., etc.) 726; cited more fully, ante, p. *333 ; Alliance Bank of Simla v. Casey, 5 C. P. D. 429 ; 49 L. J. (C. P.) 781. In this case an action on a bond executed in India was held not barred here till after twenty years. In India specialty debts have no greater efficacy than simple contract debts, and are barred in three years. (z) They are carried out and explained in British Linen Company v. Drum- mond, 10 B. & C. (21 E. C. L. R.) 903 ; and De la Vega v. Vianna, \ B. & Ad. (20 E. C. L. R.) 284. See, also, the notes to Mostyn v. Fabrigas, 1 Smith, L. C. pp. 693 eL seqq., 8th ed. ; and Story's Conflict of Laws. (a) Biandon v. Nesbitt, 6 T. R. 23; De Wahl v. Braune, 25 L J. (Ex.) 343; 1 H. & N. 178; Willison v. Patteson, 7 Taunt. (2 E. C. L. R.) 439; Esposito V. Bowden, 27 L. J. (Q. B.) 17 ; 7 E. & B. (90 E. C. L. R.) 763. ^ The student will find all the law upon this interesting subject collected in the 8th and 14th Chapters of Story's Conflict of Laws. — r. '■* There is an exception to this rule which naturally springs from it, ■which is, that contracts made with an alien enemy for the payment of ransom-money or for subsistence, can be enforced Tlius, in Antoine r. Morshead. 6 Taunt. (1 E. C. L R.) 237, an alien to whom was endorsed a bill of exchange, drawn by one English subject, detained a prisoner in France, ujion another subject, ■was held entitled to recover its amount in England after the return of peace. In the well-known case of Griswold v. "Waddington, 15 Johns. 57, in error. 16 lb. 438-510. the whole law upon the subject of contracts ■with alien enemies was elaborately examined in an able opinion by Mr. Chancellor Kent. — R. 389 367 PARTIES TO CONTRACTS. [lECT. IX. being enforced even on the return of peace ; although, if a contract be made with an alien friend, and a war afterwards breaks out between his country and this, the effect is to suspend his right to sue upon the contract until the return of peace, not wholly to disqualify him from suing {b). It seems sufficiently connected with the subject of this work to add, that by the Common Law, aliens may acquire and possess within this realm, by gift, trade, or other means, any goods personal whatever, as well as an Englishman (c). And by *the Naturalization L ^^^J Act, 1870 (33 & 34 Vict., c. 14), s. 2, real and personal property of every description may be taken, acquired, held, and disposed of by an alien in the same manner in all respects as by a natural-born British sub- ject ; and a title to real and personal property of every description may be derived through, from, or in succes- sion to an alien, in the same manner in all respects as through, from, or in succession to a natural-born British subject. Anotlier class of persons who are disabled from enforcing contracts are outlaws {d), and persons under sentence for felony (e). They are, however, liable upon the contracts made by them while in that situa- tion, though incapable of taking advantage of them (/). This disability is removed by pardon; and when the attainder or outhuvry is removed, the party may con- tract and sue as before (y). It should be observed, however, that the law as to the inability of felons to (6) Flindt v. Waters, 15 East, 260 ; Alcenius v. Nygrin, 24 L. J. (Q. B.) 19. (c) Calvin's Case, 7 Co. Rep. 1. (d) Outlawry in civil proceedings is abolished by 42 & 43 Vict., c. 59 (Civil Procedure Acts Repeal Act, 1879), s. 3. (e) Dallock v. Dodds, 2 B. & A. (5 E. C. L. R.) 258. (/) Ramsey v. Macdonald, Foster, C. L. 61. (g) Bac. Abr. " Outlawry," H. 390 LECT. IX.] CONVICTS COKPORATIONS. 368 enforce contracts lias been modified by 33 & 34 Vict., c. 23, whicli was passed on the 4tli of July, 1870. Sect. 1 of that Act provides that, " from and after the passing of this Act, no confession, verdict, inquest, conviction, or judgment of or for any treason or felony or felo r*o/^Q-i "^de se, shall cause any attainer or corruption of blood, or any forfeiture or escheat, provided that noth- ing in this Act shall affect the law of forfeiture conse- quent upon outlawry." The Act then, in sect. 6, defines the word " convict," as thereinafter used, to mean any j)erson against whom, after the passing of the Act, judg- ment of death or penal servitude shall have been pro- nounced or recorded by any court of competent jurisdic- tion in England, Wales, or Ireland, upon any charge of treason or felony. Sect. 7 states when a "convict'* ceases to be subject to the operation of the Act. And sect. 8 disables a "convict" from suing or making any contract while subject to the operation of the Act. Sect. 30, however, suspends the disabilities of sect. 8 as to a " convict " lawfully at large under a license. There is one other class, I was about to say of indi- viduals, but that would have been incorrect (for, although persons in the eye of the law, they are not individuals in common parlance), regarding whose power of contracting I have a few words to say, — I mean corporatiojis aggregate. A corporation aggregate consists, as you know, of a number of individuals united in such a manner that they and their successors con- stitute but one person in law. Thus, the mayor, alder- men, and burgesses of a borough are a corporation, and as such have an existence distinct from that of the indi- vidual mayor, and of the individuals enjoying the franchiseof burgess, *or post of alderman. But r^on(\-\ then, this corporate existence being an ideal one, and the creature of the law, it is obviously impos* 391 370 , PARTIES TO CONTRACTS. [lECT. IX. sible that the corporation can contract in the same way as an ordinary person. Accordingly the law, the crea- ture of which, as I have said, it is, has provided for it a mode of contracting, namely by its common seal, which, being affixed to the contract, authenticates it, and makes it the deed of the corporation ; and, as a general rule, that is the only way in which a corpora- tion can contract (h)} A few instances will show the force and the application of this important rule. Thus, in the Mayor of Ludlow v. Charlton [i), the defendant had laid out a sum of money in pulling down and alter- ing an inn and doing other work, at the request and for the convenience of the corporation, confiding in their promise to pay him that sum for such work ; but though he laid out more than that sum, he was unable to charge the corporation with it, from having neglected the very obvious and easy mode of binding the corpora- tion by deed, as the law prescribes. Even an entry by the corporation in their own books of a minute of this agreement, was not admitted to bind them. In Arnold V. The Mayor of Poole (j), the plaintiff had performed r*^711 *^^^^ duties of attorney to the corporation of that place, which had incurred a large debt to him ; but having only been appointed by the mayor and council, and not under the seal of the borough, he could not recover his costs, although the counsel of the (A) Com. Dig. Franchises, F. 13. (i) 6 M. & W. 815. (j) 4 M. & G. (43 E. C. L R.) 860. See Queen v. Mayor, &c., of Stamford, 6 Q. B. (51 E. C. L. R.) 433. ^ A corporation may adopt the seal of another, or an ink impression : Grossman v. Hilltown Co., 3 Grant, 225. When agents executing an instru- ment in behalf of a corporation, sign their own names and affix their own seals, such seals, are merely nugatory ; and the instrument will be binding on the corporation as a simple contract if it is in other respects valid : Regents V. Detroit Society, 12 Mich. 138.— s. 392 LECT. IX.] CORPORATIONS. 371 borough had passed a resolution directing the business to be done by him, and knew of its progress. In Paine v. The Guardians of the Poor of the Strand Union (Z-), the guardians, who are a corporation by statute, had ordered tlie phiintifip, a surveyor, to make a survey and a map of the rateable property in a parish which was part of the union, but as the plaintift* had not insisted upon having his retainer under seal, he was unable lo recover for the survey or the map. This general rule, however, has from the earliest traceable periods been subject to exceptions,^ the deci- sions as to which furnish the principle on which they have been established, and are instances illustrating its application, but are not to be taken as so prescribing in terms the exact limit, that a merely circumstantial dif- ference excludes from the exception. This principle appears to be convenience, amounting almost to neces- sity. Hence, the retainer by parol of an inferior ser- vant, authorizing another to drive away cattle, damage feasant, to make a distress or the like, the doing of acts very frequently recurring, or too insignificant r^o^-o-i *to be worth the trouble of affixing the com- {k) 8 Q. B. (55 E. C. L. E.) 326. ' Mr. Morawetz (Private Corporations, § 167) says: "It [the rule that a seal is essential] was never rigorously applied in all cases (which shows that it did not result from the nature of a corporation) ; and in modern times the ancient rule has been wholly discarded. It is now a rule well settled through- out the United States, that a corporation may make a contract without the use of a seal, in all cases in which this may be done by an individual ; and it is equally well settled that an agent of a corporation may be appointed with- out the use of a seal, whatever may be the purpose of the agency. The Eng- lish Courts have held more firmly to the time-honored doctrine ; but even in England it is settled law that a private corporation established for purposes of trade or traffic has implied authority to make any contract in the direct course of the business which it was cliartered to carry on, without the use of the corporate seal, in the same manner as an individual." He cites numer- ous authorities. And see infra, p. *379, note 1. 393 372 PARTIES TO CONTRACTS. [lECT. IX. Ttion seal, are established exceptions. In such cases the head of the corporation has from the earliest time been considered as delegated by the rest to act for them {I). Much illustration as to these acts is afforded by the case of Smith V. Cartwright, decided in the Exchequer Chamber (m). It was an action by one of the coal- meters of King's Lynn, for disturbance in liis office of coal-meter, in the exercise of which he claimed the right to weigh coals brought into the port, and to take a certain fee for weighing them ; and it became a mate- rial question whether he was duly appointed meter or not. He had not been appointed under seal. The Court held, that, as the right he claimed was to dis- charge certain duties in regard to the property of third persons altogether against their will, and to demand a fee for so doing, this right must be by reason of his having an office, and not being a mere servant of the corporation, and consequently his appointment must, in order to be valid, be under the seal of the corpora- tion. Had this not been so, but if the corporation had merely claimed a right to measure by persons appointed by themselves, such persons would be merely servants, and might well be appointed without seal. You will also see an enumeration of these '-'acts in Com. '- -^ Dig. Franchises, F. 13 (n). They are treated by the Court of Common Pleas, in the great case of The Fishmongers' Company v. Robertson (o), as so well known as to require no enumeration in the judgment of the Court. They are apparently as ancient as the doctrine to which they are commonly stated to be ex- cjeptions. They do not depend upon any one principle, (/) The Mayor of Ludlow v. Charlton, ante, p. *370. (m) 20 L. J. (Ex.) 401 ; 6 Ex. 927, S. 0. (n) See Bro. Abr. Corp. K. ; and in Horn v. Ivy, 1 Vent. 47. (o) 5 M. & Gr. (44 E. C. L. R.) 192. 394 LECT. IX.] CORPORATIONS. 373 other than that of convenience, amounting almost to necessity, which belongs to them in their very nature, and under which they are ranked by the Court of Queen's Bench in Church v. Imperial Gas Light Company [p). There is, however, a distinction between matters which do and matters which do not affect any interest of the corporation. The former must be authorized by the corporate seal. Tlius, they must appoint a bailiff" by deed for entering upon lands for condition broken, in order to revest their estate ; but they need not do so where the bailiff" is only to distrain for rent {q). To this rule also, the convenience of the world has occa- sioned some other exceptions ; the principle of which is, that, when a corporation has been created for mei'cantile purposes, it is ^allowed to enter without seal into p.:07j^-| certain contracts, which are usually entered into ^ J without seal by commercial men. Such a corporation for instance may have power to accept bills of exchange, but the power must either be expressly given it, e. g., by Act of Parliament, or must be necessarily implied from the nature of the business in which the corpora- tion is engaged. A railway company incorporated in the usual way has no such power (r). In the case of Church V. The Imperial Gas Light Company (s) the defendants were empowered, by the Act incorporating (/)) 6 A. & E. (33 E. C. L. R.) 846. (7) Smith V. Birmingham Gas Co., 1 A. & E. (28 E. C. L. R.) 526 ; Parol v. Moor, Plow. 91 ; Jenkins, 3rd Cent, case, 68, See Halli;. Mayor, &c., of Swan- sea, 5 Q. B. (48 E. C L. R) 526. (r) Bateman v. Mid-Wales Rail. Co., L. R. 1 C. P. 499 ; 35 L. J. (C. P.) 205 ; Broughton v. Manchester Water Works, 4 B. & Aid. (6 E. C. L. R.) 1. See also Smith's Mer. Law, 9th ed., by Dowdeswell, pp. 81, 82. As to the power of companies incorporated under the " Companies Act, 1862," to accept bills of exchange, see ytost, p. *400. (s) 6 A. & E. (33 E. C. L. R.) 846 ; R. v. Bigg, 3 P. Wms. 419 ; Beverley v. Lincoln Gas Co., 6 A. & E. (33 E. C. L. R.) 829 ; Clarke v. The Guardians of the Cuckfield Union, 21 L. J. (Q. B.) 349 ; Nicholson v. Bradford Union, 35 L. J. (Q. B.) 176 ; L. R. 1 Q. B. 620. 395 374 PARTIES TO CONTRACTS. [lECT. IX. them, to make gas, and to sell and dispose of it in sucli manner as they should think proper, with full power to supply and light with gas the shops, houses, streets, &G., in the places mentioned. The statute further enacted that the directors should have the custody of the common seal, with full power to use it for the affairs and concerns of the company, and should have power to direct and transact the affairs and busi- p.:.r,„.--i I16SS of the company, as well in laying out and •- '^^ -" ^disposing of money for the purposes of the same, as in contracting for and purchasing lands and tenements, materials, goods and chattels for the use of the company, &c., and selling and disposing of all lands, &c., and all articles produced as aforesaid. The defendants entered into a simple contract with the plaintiff, to supply him with gas at a certain rate, and the Court held that they had power to enter into this contract, and to sue in assumpsit for the price of the gas supplied. " The general rule of law," said the Court in delivering its judgment, " is that a corporation contracts under its common seal ; as a general rule it is only in that way that a corporation can express its will, or do any act. Whenever to hold the rule applicable would occasion a great inconvenience or tend to defeat the very object for which the corporation was created, tha exception has prevailed. On the same principle stands the power of accepting bills of exchange and issuing promissory notes by companies incorporated for the purposes of trade, with the rights and liabilities consequent thereon. We must understand this com- pany to have been incorporated for the purpose of sup- plying individuals willing to contract with them for gas-light. Such contracts are of almost daily occur- rence, and to hold that for every one of them, of the same or less amount, it was necessary to affix the com- 396 LECT. IX.] COKPOEATIONS. 375 mon seal, would be so seriously to impede the corpora- tion in fulfilling the very purpose for which it was created, that *we think we are bound to hold r^^ojn-t tlie case fairly brought within the princijDle of the established excej^^tions." Upon similar reasoning where the Australian Mail Steam Navigation Company (which was constituted a trading corporation by charter for the purpose of main- taining a communication by steam and other vessels for carrying passengers, &c., between Great Britain and Australia), in the performance and for the more eifectual prosecution of the objects of their charter, and by a resolution of the directors duly entered into as re- quired by the charter, made a parol agreement with the plaintiff, that in consideration of his going to Sidney to bring home one of their ships which was supposed to be unseaworthy and uninsurable, they would pay his passage out to Sidney and allow hitn a remuneration for his said services ; the Court of Queen's Bench de- cided that this contract being entered into by the com- pany and performed by the plaintiff for the express purpose of preserving the ship and maintaining the communication and carriage of passengers, &c., between Great Britain and Australia, the company were liable to pay him notwithstanding that the contract w^as not under seal {I). In another case in which the same company were the plaintiffs, and in which they had brought by parol contract of the defendants a quantity of ale '-'for the use of the passengers on board r-^nn^-i their steam vessel, and paid the defendants for ■- -■ the same, but the ale proved unfit for use ; the Court of Exchequer held, that the contract, although not under seal, yet being executed, the defendants were • (0 Henderson v. The Australian R. M. Steam Nav. Co., 24 L. J. (Q. B.) 322; 5 E. & B. (85 E. C. L. R.) 409. 397 377 PARTIES TO CONTEACTS. [lECT. IX. liable to the plaintiffs in damages (u). Again, where a company incorj)orated under the Companies Act, 1862, for the working of collieries, contracted, but not under seal, with an engineer for the erection of a pumj)ing engine and machinery for use in the colliery, and paid him part of the price; in an action by the company against the engineer for a breach of contract in refusing to deliver the engine and machinery, it was held that the action was maintainable though the contract was not under seal (v). But unless the nature of the business for which the corporation was created, necessarily implies the exist- ence of these powers of contracting otherwise than by deed, it will not have them.^ Thus it has been held {w) («) The Australian R. M. Steam Nav. Co. v. Marzetti, 24 L. J. (Ex.) 273 ; 11 Ex. 2--'8 ; Renter v. Electric Telegraph Co., 26 L. J. (Q. B.) 46 ; 6 E. & B. ^88 E. C. L. R.) 341. (v) South of Ireland Colliery Company v. Waddle, L. R. 3 C. P. 463 ; 4 C. P. 617 (Ex. Ch.) S. a, 37 L. J. (C. P.) 211 ; 38 lb. 338. See however now, Btat. 30 & 31 Vict., c. 131, s. 37 {post, p. *399), as to the contracting power of companies incorporated under the Companies Act, 1862. (w) Gibson v. East India Co., 5 Bing. N. C. (35 E. C. L. R.) 262. ^ It is a general principle that a corporation has no power to enter into any contract, not within the scope of the objects for which it has been chartered, and it has been held that even where it has received and enjoyed the con- sideration, it may in a suit upon the contract take advantage of its defect of power. In such cases, however, the consideration may be recovered back : Albert r. Savings Bank of Baltimore, 1 Md. Ch. 407 ; Abbott i-. Bait. & R. Steam Packet Co., lb. 542 ; Beers v. Plioenix Glass Co., 14 Barb. 358. Corpo- rations are bound to follow strictly the letter of the charter, and can exercise no power unless granted to them or absolutely necessary to carry out the power so granted : Smith v. Morse, 2 Cal. 524 ; Mechanics' Savings Bank v. Meriden Agency Co., 24 Conn. 159; Berry v. Yates, 24 Barb. 199; Cincin- nati R. R Co. V. Clarkson, 7 Ind. 595 ; Morris R. R. Co. v. Newark, 10 N. J. Eq. 352 ; Smith i-. Eureka Flour Mills, 6 Cal. 1 ; Straus v. Eagle Ins. Co., 5 Ohio St. 59; Aurora v. West, 9 Ind. 74; Madison Plank Road Co. «-. Water- town Co., 5 Wis. 173; Downing v. Mount Washington Co., 40 N. H. 230; Parish v. Wheeler, 22 N. Y. 494 ; Rock River Bank v. Sherwood, 10 Wis. 230. The express powers of a corporation must be exercised in the manner pointed out by the statute, but the powers merely incident thereto may be exercised by its officers or agents : Smith v. Eureka Flour Mills, 6 Cal. 1 • 398 LECT. IX.] CORPORATIONS. 377 that when the East India Company granted a retiring pension to a military officer for ^services per- r^qr-g-j formed to them in the East Indies, but did not grant it under their common seal, the grant did not fall within the reason or principle of the exception, but must be governed by the general rule of law, that a corporation cannot be sued upon a contract, unless under seal. It is, indeed, obvious that the grant of this pension could have no connexion whatever with the condition or powers of the company as a trading com- munity, and consequently that it is not within the ex- ception which has been established as to contracts en- tered into by corporations instituted for the purposes of trade in matters relating to their trade, or within that respecting matters of daily occurrence and slight im- portance, which has been alluded to. And where the Governor and Company of Copper Miners {x) entered into a parol contract with a person to supply him with a large quantity of iron bars, it was held, that as there was no evidence that the contract proved was in any way auxiliary to the trade in copper, it must be held (x) The Governor and Company of ('opper Miners of England v. Fox, 16 Q. B. (71 E. C. L. E.) 229 ; 20 L. J. (Q. B.) 174. Southern Ins. Co v. Lanier, 5 Fla. 110 ; Holland r. San Francisco, 7 Cal. 361 ; Coe V. Columbus R. R. Co., 10 Ohio St. 372 ; Merrick v. Burlington Co., 11 Iowa, 74. It is well settled that a corporation may without special authority make a note or draft or accept a draft for a debt contracted in its legitimate business : Partridge v. Badger, 25 Barb. 146 ; Hamilton v. Newcastle R. R. Co., 9 Ind. 359; Lucas v. Pitney, 27 N. J. 221 ; Frye v. Tucker, 24 111. 180; Rockwell V. Elkhorn Bank, 13 Wis. 653; Goodrich v. Reynolds, 31 111. 490. The burden of proof is upon parties impeaching the acts of corporations to show that such acts are not within its corporate powers : Chautauqua Bank v. Risley, 19 N. Y. 369. A corporation chartered in one State may make and enforce in another State contracts allowed by its charter, and not in violation of the public policy or laws of the latter State : Bard v. Poole, 12 N. Y. 495; Wright V. Bundy, 11 Ind. 398. But see Merrick v. Brainard, 38 Barb. 574.— s. 399 378 PARTIES TO CONTRACTS. [lECT. IX. not a contract entered into for the purpose of carrying on the trading object for which the pluintifls were in- corporated, and did not bind them ; and consequently, as there was no consideration for the defendant's prom- ise, that he was not bound to perform it. In like r*^7Q"l ^^^^^^6^% where the London Dock Company, a •''corporation instituted for the purpose of carry- ing on a particular trade, entered into a contract for the cleansing and removing the filth and dirt accumulating in their docks and basins ; the Court held that such a contract ought to have been under the corporation seal, as it was not a contract of a mercantile nature ; nor was it with a customer of the Company, nor was it of a character which created an impossibility that it should be under seal {y). But where a trading company is created by charter, while acting within the scope of the charter, it may enter into the commercial contracts usual in the trade which the company is to carry on, in the usual manner [z). Some acts of trifling importance which every corporation may do without deed, have been already mentioned.^ {y) London Dock Company v. Sinnott, 27 L. J, (Q. B.) 129 ; 8 E. «& B. (92 E. C. L. R.) 347. {z) Copper Miners' Co. v. Fox, supra. ' The excepted cases referred to in the decision in The East London "Water- works Co. V. Bailey, were, 1, where the contract is executed ; 2, where the acts done are of daily necessity, and too insignificant for the trouble of the seal ; 3, where tlie corporation has a head, as a mayor or a dean, who may give com- mands ; 4, where the act should from necessity be done immediately ; and 5, where it is essential to a moneyed corporation, like the Bank of England, that it should have the power of issuing bills and notes. But the distinction be- tween executed and executory contracts, which was the foundation of the first of these exceptions, was directly overruled in Church v. The Imperial Gas Co., 6 A. & E. (33 E. C. L. R.) 846. That case, which decided that a corporation might maintain assumpsit for breach of an unsealed contract to accept gas from year to year at so much per annum, was rested on the second and fifth of the above exceptions, the contract being one of daily occurrence, and almost es- sential ('■ convenience amounting almost to necessity "), for the purpose of the 400 LECT. IX.] COEPORATTONS. 379 Contracts, although for things necessary, cannot be enforced against "urban authorities" created by the Public Health Act, 1875 (38 & 39 Vict., c. 55), if for an amount exceeding £50, unless under their common seal. These are corporations created for public pur- poses, not trading or commercial corporations having gain for their object ; and under section 174 of the above Act " every contract made by an urban authority whereof the value or amount exceeds £50, shall be in corporation ; and all the recent cases in England have been decided upon the same grounds : Beverly v. The Lincoln's Inn Gas Light and Coke Co , 6 A. & E. (33 E. C. L, R.) 829 ; Paine v. Strand Union, 8 Q B. (55 E. C. L. R.) 326 ; Mayor of Ludlow v. Charlton, 6 M. & VV. 824; Lamprell t>. The Billericay Union, 3 Exch. 306 ; Diggle v. London and Blackwall Railway Co., 5 lb. 442 ; Finlay v. Bristol and Exeter Railway Co., 9 Eng. Law & Eq. R. 483. On this side of the Atlantic, however, a much more relaxed rule prevails, and it has long been settled that there is no distinction between the contracts of a corporation and a natural person, whether they are express or implied, either from acceptance of an executed consideration or from the ratification of acts done on its behalf by its members or others : Bank U. S. v. Dandridge, 12 Wheat. 64; Proprietors v. Gordon, 1 Pick. 297 ; Ross v. City of Madison, 1 Smith, 98 ; Gassett v. Andover, 21 Vt. 342 ; and see many other cases collected in Angell and Ames on Corporations, 211, 212 ; 2 Kent's Com. 290 (whose state- ment of the law is referred to by Patteson, J., in Beverly v. Gas Co., supra), and the note to Mayor v. Charlton, 6 M. & W. 815, Am. ed. — r. The acts of a corporation, evidenced by a vote, written or unwritten, are as completely binding upon it, and as full authority to its agents, as the most solemn acts done under the corporate seal ; and promises and engagements may as well be implied from its acts and the acts of its agents as if it were an in- dividual : Elysville Manufacturing Co. v. Okisko Co., 1 Md. Ch. 392 ; Conro v. The Port Henry Iron Co., 12 Barb. 27 ; Ross v. Madison, 1 Ind. 281. Prom- ises are implied against corporations in the same cases as against natural per- sons : San Antonio v. Lewis, 9 Tex. 69. The appointment of an agent may be implied: Planters' Bank v. Bivingsville Cotton Co., 10 Rich. 95; Alabama R. R. Co. r. Kidd, 29 Ala. 221 ; Hamilton v. Newcastle R. R. Co., 9 Ind. 359 ; Buckley v. Briggs, 30 Mo. 452 ; Brown v. Donnell, 49 Me. 421 ; Allen v. Citi zens' Co., 22 Cal. 28. The vote of the directors of a bank to accept one se- curity in the place of another may be proved by parol, when uo record is made of it: Ryan v. Dunlap, 17 111. 40; Southern Hotel Co. v. Newman, 30 V'o. 118, As against the minority, a majority of the stockholders or board of directors of a corporation cannot legally deviate from the undertaking which was originally contemplated between the parties : Kean v. Johnson, 9 N. J Ea. 401.— 8. ' 26 401 379 PARTIES TO CONTRACTS. [lECT. IX. writing, and sealed with *tlie common seal of L -■ such authority " (a). This enactment is obli- gatory and not merely directory, and applies to an ex- ecuted contract of which the urban authority has had the full benefit and which has been effected by its agent duly authorized under the common seal of the author- ity {b). It has also been held that as the words " every contract .... whereof the value or amount ex- ceeds £50 " are in the present tense, the w^ords " at the time of making t," must be read into the enactment. The contract, therefore, in order to be rendered invalid must be one which exceeds £50 at the time it is entered upon, not one which may possibly exceed £50 at some future time. Thus, where on the occurrence of an out- break of fever, a medical man made a verbal agreement with an urban sanitary authority to attend the patients who were in tents at the rate of 5s. Sd. per tent per day, and he attended until the amount due w^as nearl}' £100, it was held that the urban sanitary autliority was liable on this contract, inasmuch as at the time of entering ^ into it the parties had not ^ascertained that it r 3811 L -• would necessarily exceed £50 (c). There is an important class of parties to contracts, most of which at the present day are of the nature of (o) Sect. 85 of the now repealed Public Health Act, 1848 (11 & 12 Vict., c. 63), contained a similar provision as to "local boards," where the value or amount exceeded £10. (6) Young r. Corporation of Leamington, 8 App. Cas. 517 ; 52 L. J. (Q. B.) 713 (H. L.), affirming S. C. 8 Q. B. D. 579 ; 51 L. J. (Q. B.) 292, and following Hunt V. Wimbledon Local Board, 3 C. P. D. 208, 47 L. J. (C. P.) 540 ; 4 C. P. D. 48 ; 48 L. J. (C. P.) 207. (c) Eaton v. Basker, 7 Q. B. D. 529 (C. A.) ; 50 L. J. (Q. B.) 444 ; reversing on this point S. C. 6 Q. B. D. 201 ; 50 L. J. (Q. B.) 194. In Att.-Gen. v. Gas- kill, 22 Ch. Div. 537; 52 L. J. (Ch.) 659, Bacon, V.-C, held that an agree- ment to settle an action brought by a local board to restrain defendant from obstructing a foot-path, on the terms that defendant should pay the costs the board, was not within the above enactment, and might be enforced, though] not under seal, and although the costs amounted to more than £50. 402 LECT. IX.] COMPANIES. 381 trading corporations, which ought not to be passed over without mention, though our consideration of them must be necessarily brief, I mean public or joint stock companies. Nearly all of these are of recent origin, most of them very recent. Some of these companies are incorporated, and others not, and some important attributes exist peculiar to different stages of their growth, from a mere party of individuals combining to promote the formation of a company, until they have achieved their object by effecting its incorporation. All these companies are created for some definite and pre- scribed object, and have already been slightly men- tioned in treating of the power of corporations to con- tract. Previously to the passing of the statutes hereafter mentioned, so great a number of joint stock rrijooo-i ^companies had been established, and so many more were projected, each striving to attain its object by means of its own, none having any regard to the provisions of the law in analogous cases, and many vio- lating them, that the greatest confusion and uncertainty were introduced into their transactions, and lamentable frauds and oppressions were committed. Several Acts of Parliament were passed remedying some of these evils, but being found insufficient, the Legislature passed some general enactments, of which the most important for the present purpose are, the Act for the Pegistra- tion. Incorporation, and Regulation of Joint Stock Companies, 7 & 8 Vict., c. 110, which came into opera- tion on the 1st of November, 1844; the Companies Clauses Consolidation Act, 1845, 8 Vict., c. 16 ; the Lands Clauses Consolidation Act, 1845, 8 Vict., c. 18 ; and the Railway Clauses Consolidation Act, 1845, 8 Vict., c. 20. The statute 7 & 8 Vict., c. 110, was indeed repealed by 19 & 20 Vict., c. 47 ; but as to insurance 403 382 PARTIES TO CONTRACTS. [lECT. IX. companies registered under it, and as to new companies for insurance, it was revived by 20 & 21 Vict., c. 80. The statute 19 & 20 Vict., c. 47, now repealed, applied to companies the principle of limited liability. Exist- ing companies might come under its operation, and joint stock banks established since May 5, 1844, were subjected to it by 20 & 21 Vict., c. 49. There was also a statute regulating joint stock banking companies, r*SSS1 ''^ ^^^' "^^■' ^* '^^' ^y which, and by 7 & 8 Vict., c. 113, that important class of public companies was governed. Finally, there is " Tlie Com- panies Act, 1862" 25 & 26 Vict., c. 89, which has repealed most of the former Acts, and has established a system which varies much from the ordinary rules of law, and which can be learnt only by a careful study of the statute itself, and of the decisions of the Courts upon the questions which have occurred in applying it to jDractice. This Act has since been amended by the fol- lowing Acts, viz. :— 30 & 31 Vict., c. 47, c. 131 (the Companies Acts, 1867) ; 33 & 34 Vict., c. 104 (the Joint Stock Companies Arrangement Act, 1 870) ; 40 & 41 Vict., c. 26 (Companies Act, 1877) ; 42 & 43 Vict., c. 76 (Companies Act, 1879) ; 43 Vict., c. 19 (Com- panies Act, 1880) ; 46 & 47 Vict., c. 28 (Companies Act, 1883). It will be necessary to advert to some extent to the princi23les of the decisions pronounced before " The Companies Act, 1862," for the sake of explaining the law applicable to such companies as do not come within its enactments, though it is evident that for many com- panies established before the passing of that Act, the law IS different from that by which companies since established are regulated. " A joint stock company i-s a partnership consisting for the most part of a very large number of members. 404 LECT. IX.] COMPANIES. 383 whose rights and liabilities would be *precisely r*oo4-| the same as those of any other partners, did not their multitude oblige them to adopt certain peculiar regulations for the government of the concern, which are ordinarily contained in an instrument called a deed of settlement. Such is a joint stock company, the con- duct of whose affairs has not been affected by the gen- eral enactments, which have been mentioned. Such bodies still exist, but frequently the impossibility or great inconvenience of carrying on their business upon such a footing has induced them to add to the deed of settlement an Act of Parliament passed expressly for their own purj)oses" (d). It is common, as you are no doubt aw^are, to com- panies generally, that the joint stock or capital is di- vided into equal parts, called shares, the number of which belonging to any member ascertains the amount which he has contributed to that stock or capital, and his consequent interest in the undertaking. The mem- bers or shareholders delegate all the ordinary business of the company to certain of its members, in whom they confide, and who are usually called directors, but reserve to themselves the right to interfere on specified occasions, together with a general control and sui^erin- tendence. It is also common to companies generally that, in all cases which are not regulated by the deed of settlement and the private, or as it is called, special *Act, r:::oo;:-j or by one or other of the general statutes we have mentioned, the common law prevails, and the rules apply which would apply to an ordinary partner- ship {e) ; and, on the other hand, the parties, having {d) Smith's Mercantile Law, 6th ed., by Dowdeswell, p. 59 ; and see p. ^6, 9th ed. (e) Holmes v. Higgins, I B. & C. (8 E. C. L. R.) 74 ; Wilson v. Curzon, 15 M. & W. 532. 405 385 PARTIES TO CONTRACTS. [lECT. IX. exchanged their mutual rights at common law for those stipulated for in their deed, are bound by the latter, and cannot, as a general rule, act otherwise than in the I stipulated manner. These results have been made very clear by the judgment of the Court of Exchequer, in Bosanquet v. Shortridge (/), in which case the deed of settlement had provided that no person should be regis- tered as a shareholder without the consent of the board of directors ; and it was endeavoured to be shown that the defendant had ceased to be a shareholder, having actually sold his shares to another, although the transfer was not with the consent of the board of directors. "It is necessary," said the Court, " that Courts of Justice should act on general rules, without regard to the hard- ship which in particular cases may result from their application. This is the case of a joint stock company regulated by deed. All persons executing the deed are bound by whatever is done in pursuance of its provi- sions, but they are bound no further. The original body of shareholders agreed to trade in partnership, r^^Sfil ^^^ Hhej farther agreed that, by a certain stipulated mode, any one of this body might transfer his share to another to be substituted in his- place. But unless the steps pointed out by the deed for making such transfer have been duly taken, the original body of shareholders remain partners, accord- ins: to the terms of their deed of settlement. If, indeed, a case could be conceived where all the shareholders, at a particular time, had assented to a mode of transfer different from that stipulated for in the deed, they might be bound by what they had so agreed to. But such a state of things could hardly happen to a joint stock company like that in which the defendant was a (/) 4 Exch. 699 ; 22 L. J. (Ch.) 49; Kirk v. Bell, 16 Q. B. (71 E. C. L. K.) 290 ; Watson v. Bales, 26 L. J. (Ch.) 361. 406 LECT. IX.] COMPANIES. 386 member; and certainly no universal consent can be taken to have existed here." The defendant was held to be still a member. The above case of Bosanquet v. Shortridge, illustrates a great inconvenience felt by a joint stock company established by deed, viz., that no member can transfer his share without the consent of the rest ; for such a company being, in most particulars, an ordinary part- nership, the consent of each partner is necessary to the introduction of a new one ; although it has been con- sidered, that where the nature of the company was such that the members could not have intended that there should be no change in their body without their con- sent, such a consent was not necessary (ff). Thus, great *doubts and difficulties and disputes have un- r*qQ7-i avoidably arisen in endeavouring to act with- out such consent. And in all ordinary cases the mem- bers have no peculiar rights or liabilities, but, as in ordinary partnership, are parties to all the contracts of the company, entitled to the benefit of them, and re- sponsible for their non-performance. One of the objects, however, of the general enactments referred to (A), or at all events of most of them, is to prescribe the modes in -which, under the operation of those statutes, such shares may be granted by the company, and transferred from holder to holder ; and various modes for attaining these purposes are prescribed in the particular Acts regulating many of the companies which were established before those enactments. It may be worth while to mention here that shares in a joint stock company, although it be seised of land ^nd possessed of goods as well as of the property in (g) Vox V. Clifton, 9 Bing. (23 E. C. L. R.) 119; Waterford & DiibUn Ry Co. V. Pidcock, 22 L. J. (Ex.) 146 ; 8 Ex. 279. (A) Ante, p. *382. 407 387 PARTIES TO CONTRACTS. [lECT. IX wliicli it commonly deals, do not full witliiu the 4tli section of the Statute of Frauds as an interest in land, or within the 17th section as goods, wares, or merchan- dise (^) ;^ but in the absence of any enactment making them the one or the other, are personal property, and mere choses in action, and consequently are transferable by parol {k). r*-^HS1 ^^^ ^^^^ approbation of the directors be re- quired as a preliminary to the transfer, it must of course be procured (/), and that by the vendor, who must do everything necessary to vest the property in the purchaser. (m), although it is generally for the pur- chaser to jDrepare and tender the conveyance {n). And. therefore, when the shares are by the provisions of an Act of Parliament transferable by deed only, the pur- chaser must tender a deed to the seller for execution before he can sue for not transferring them ; and a sealed instrument of transfer, having the name of the vendee in blank at the time when it is sealed and deliv- ered, is invalid, not being a legal deed (o).^ When a person has become a member of a joint stock company formed under a deed of settlement, he is, in all ordinary cases, unless exempted by the private or (i) Humble v. Mitchell, 11 A. & E. (39 E. C. L. E.) 205 ; Tempest i;. Kilner, 3 C. B. (54 E. C. L. E.) 249 ; Bowlby v. Bell, lb. 284 ; ante, p. *142. {k) Hibblewhite v. M'Morine, 6 M. & W. 214. (l) Bosanquet v. Shortridge, 20 L. J. (Ex.) 57 ; 4 Exch. 699, S. 0. (m) lb. ; Wilkinson v. Lloyd, 7 Q. B. (53 E. C. L. E.) 27. (n) Stephens v. De Medina, 4Q. B. (45 E.G. L. E.) 422 (o'\ Hibblewhite v. M'Morine, 6 M. & W. 200 ^In some American cases, however, a contrary opinion has been maintained: Tisdale v. Harris, 20 Pick. 13 ; Boardman v. Cutter, 128 Mass. 390; Brownson V. Chapman, 63 N. Y. 625 (the New York statute, however, covers ''things in action" and is therefore broader than the English: Tomlinson v. Miller, 7 Abb. Pr. N. S. 368); Pray v. Mitchell, 60 Me. 434; Mayer v. Child, 47 Cal. 144; Fine v. Hornby, 2 Mo. App. 64; Kauffman v. Harstock, 31 Iowa, 4*^3 • Southern Ins. Co. v. Cole, 4 Fla. 378 ; Vawter v. Griffin, 40 Ind. 601. ' See ante, p. *6, note 2. 408 LECT. IX.] COMPANIES. 388 general statute, entitled to the benefits of all its contracts, and responsible for the engagements of the company made by the agents of the concern in order to carry out its purposes (p). But in order to charge the company or any member upon a contract, it must be proved to have been made by persons having authority from all the '-'shareholders to bind them by such a con- p-.^QQ-i tract ; and this may be done by proving that '- -' it was sanctioned by the persons authorized by the deed of the company to conduct its affiiirs {q). But the claimant is not confined to the deed for proof of authority. He may show in any way that the whole of the shareholders have directly or indirectly given authority to those making the contract to bind them ; but to show merely that some of the directors have ordered or approved of the contract is not sufficient with- out also showing, that, by the deed or otherwise, they were authorized so to do. Therefore, where the deed appointed eleven directors, and declared five to be a quorum, the company was held not bound by a con- tract made at a board where three only were present : and this, although the company was completely regis- tered under 7 & 8 Vict., c. 110 (q). And, on the other hand, where a manufiicturing company had apj^ointed a manager to superintend and transact its manufactur- ing business, but the general business was to be trans- acted by a board of directors, who had power to appoint officers and delegate their authority, and goods for the manufacture had been ordered by the manager, the chair- man, the deputy-chairman, and the secretary, and were *used for the company's purposes; the Court p;:oQrv-i of Common Pleas considered, that, although, (p) Harvey v. Kay, 9 B. & C. (17 E. C. L. R.) 356. (q) Ridley v. Plymouth Baking Co., 17 L. J. (Ex.) 252; 2 Ex. 711, S. C. See Howbeach Coal Co. r. Teague, 5 H. & N. 151 ; 29 L. J. (Ex.) 137 ; D'Arcy V. Taraar, &c.. Rail. Co., L. R. 2 Ex. 158 ; 36 L. J. (Ex.) 37. 409 390 PARTIES TO CONTRACTS. [lECT. IX. with the exception of the manager, none of these officers had authority to give such orders, and although the directors did not expressly adopt them, yet, as they knew the goods so ordered had been received upon the premises of the company, and used for the purposes of its trade, the company was liable (7-). It will probably appear quite clear from what has been said before, and if not, it is sufficiently so from the very nature of the thing, that the contracts to which a member of a joint stock company becomes liable, be- cause they are made by the agents of the company or certain of its members, must be contracts either ex- pressly authorized by him, or appropriate in order to carry out the purposes for which the company was formed. Thus, in the celebrated case of Dickenson v Valpy (s), which was an action on a bill of exchange, purporting to be drawn and accepted by a mining com- pany, wherein the plaintiff, an endorsee for value, sought to charge the defendant as a member of that company, the Court of King's Bench held that, assum- ing the defendant to be a member of that company, it was incumbent on the plaintiff to prove that the directors of the company had authority to bind the P^oQi-| other members by drawing and ^accepting bills of exchange ; and that, the plaintiff not hav- ing produced the deed of co-partnership, nor given any evidence to show that it was necessary for the purpose of carrying on the business of a mining company, or that it was usual for them to draw or accept bills of exchange, there was no evidence of such authority to draw or accept them. " There was not any evidence," said Parke, J. (afterwards Lord Wensleydale) , "to (r) Smith V. Hull Glass Co., 21 L. J. (C. P.) 106 ; 11 C. B. (73 E. C. L. E.) 897. («) 10 B. & C. (21 E. C. L. E.) 128. 410 LECT. TX.] COMPANIES. 391 prove an authority of the parties in this concern to draw such a bill of exchange as this. I very much doubt whether there is any authority in mining com- panies, arising by implication from the nature of their dealings, to draw or accept bills of exchange ; and it is to be observed, that there was no joroof of any usage to do this in such companies. The argument would go to this, that all persons who deal in the produce of the land, which they jointly occupy, because they might sell that produce at a distance, would have an implied power given to each other to draw bills of exchange for the purpose of receiving payment for it ; if the argument was valid it would show that farmers acting in partnership, as well as miners, would have, as inci- dental to the relation of partners, an authority to draw bills of exchange upon the persons to whom the pro- duce of the land was sold ; there is, however, no neces- sity to decide that point, because there is no ground, at all events, to say that mining partners have an implied authority from one another, arising from the nature of *their business, to draw such a bill of exchange r^iqqo-i as this, for, upon the face of it, this is a bill drawn by the company upon themselves, and though it is in form treated as a bill of exchange, it is in sub- stance only a promissory note ; and the effect of saying that one member of a company like this can draw such bills or notes, would be, that each of the partners in the concern would have the power of pledging the others." Still more general was the language of Tindal, C. J., in delivering the judgment of the Court of Common Pleas in the case of Bramah v. Roberts {t). In that case a bill had been drawn by one of the directors of a gas comj)any on himself and the other directors, which was accepted by the chairman for himself and other (0 3 Bing. "N. C. (32 E. C. L. R.") 963. 411 392 PARTIES TO CONTRA(TS. [lECT. IX. directors. This acceptance was held not to bind them, in the absence of evidence of authority given to any one of the directors to bind the other directors or the company at large by the acceptance of bills of ex- change. " The address of a bill," said the Chief Jus- tice, " to the directors of metropolitan company, and the frame of acceptance by tlie chairman of such directors, for himself and the other directors, can only be refer- able, unless some explanation is given, to a company of the description well known in all the courts of law and equity in Westminster Hall as joint stock companies, pj.qQo-| and not to the ordinary partnerships in trade. '■"It was proved upon the trial of the cause, that Clare, the drawer of the bill, from whom the plaintiffs derived title, and upon whose endorsement they rely, was the same William Clare who was one of the accep- tors and one of the defendants in his capacity of ac- ceptor ; so that the bill is drawn by one of the directors upon himself and the other directors, payable to his own order, and accepted by another director for himself and the rest. But the right of one director to draw a bill upon the rest, and still further, the power of one director to accept a bill for himself and the others, so as to make those others liable, according to the case of Dickenson v. Valpy {u), in the authority of which case we entirely concur, is not a right or power implied by law, like that which belongs to one member of an or- dinary partnership in trade with respect to bills drawn and accepted for the purposes of the trade. It must depend upon the powers given by the charter or deed or agreement under which the company is established and constituted, or some other agreement between the parties, whether a bill so drawn and accepted shall or shall not have that legal effect. But upon the trial of this cause, (m) 10 B. & C. (21 E. C. L. R.) 128. 412 LECT. IX.] COMPAlSriES. 393 no evidence whatever was given by the plaintiffs of the constitution of this company, nor of any authority given by deed or otherwise to any one of the directors to bind the other directors, or to bind the *com- pv.oaAi pany at large, by his acceptance of bills of ex- change; and in the absence of such evidence, we are of opinion that no such authority is to be implied by law, or can be held to exist." With regard to the borro"wing of money, unless it be part of the ordinary business of the company, as it would be of a banking company {x), or express powers be given them by the deed, the directors have no au- thority to jjledge the credit of the shareholders by bor- rowing money, even though it be necessary to enable them to carry on the affairs of the company (y). It has since been held that even a clause in the deed of settlement, under which a mining company was carried on, which provided that the affairs and business of the company should be under the sole and entire control of the directors, of w^hom there should not be less than five or more than nine, and that three of them should at all meetings of directors, and for all purposes, be competent to act, did not authorize them to borrow money for the necessary purposes of the mines (z). As to dealing on credit, the question whether the company may be made liable by its agents so dealing, depends, like the others we have been considering, upon the authority given to those agents ; and this authority, as in other cases, may be proved *by showing it poq-i to have been actually given, or that concerns of the nature in question are ordinarily so carried on. " The question," said Lord Abinger, " which was de- (x) Bank of Australasia v. Breillat, 6 Moore P. C. C. 152. ly) Eicketts v. Bennett, 4 C. B. (56 E. C. L. K.) 686. {z) Burmester i-. Xorris, 21 L. J. (Ex.) 43 ; 6 Ex. 796, S. C. 413 395 PARTIES TO CONTEACTS. [lECT. IX. cided ill Dickenson v. Valpy, that a mining company is not necessarily formed with a power to pledge the credit of individual members by the drawing of bills, is very different from the question whether it is not formed with power to bind them by dealing on credit ; whether the directors have such a power, must depend on the general nature of the concern ; it is a matter for the jury to decide upon, unless the party gives evidence to show that their authority was expressly limited, and if it had been left to the jury in this case, I think they would not have had much difficulty in saying that it is in the general nature of mining concerns to deal on credit for the purpose of carrying on their busi- ness" {a). This distinction between borrowing and dealing on credit has been upheld by the Court of Chancery (b). It is impossible within the limits of this work to enter even upon the subjects comprised within the Rail- way Clauses Act, the Lands Clauses Act, the Com- panies Clauses Consolidation Act, or the Acts regulat- ing Joint Stock Banking Companies. All that can be r:j:oQ/^-i douc cousisteutly with the present *object, in addition to what has been said, is, to give a general view of the Law of Contracts as applied by the general Act already referred to, and known as " The Companies Act, 1862." By virtue of this Act, the principal Act, as amended by the other Companies Acts to which I have already referred (c), any number of persons not less than seven may, by using the modes prescribed by that statute, form themselves into an incorporated company, so as to obtain the advantages given them thereby. These (a) Tredwen v. Bourne, 6 M, & W. 465 ; Hawken v. Bourne, 8 M. «& W. 703. (6) In re the German Mining Co., 22 L. J. (Ch.) 926. (c) Ante, p. *383. 414 LECT. IX,] COMPANIES. 396 modes are amongst other things the registration, in an office provided for that purpose, of a document called the memorandum of association, which memorandum is to declare the name of the company, its objects, capi- tal, number of shares into which its capital is divided, the liability of its shareholders, whether limited oi unlimited, and the part of the United Kingdom in which its registered office is to be established. The effect of this memorandum, wdien registered, binds the company and the shareholders in the same manner as a covenant to conform to all the regulations of the memo- randum would bind them. It is clear, therefore, that the name of the company will thereafter be that wdiich is declared in the memorandum of association until altered in a legal manner, and by this name only can it contract, so that the rights and liabilities provided by ^statute shall attach to it by the contract. r:::oQ7i More precise regulations may also be made ac- cording to a form provided by the statute to accompany the memorandum of association, w^hich are called articles of association. These also bind the share- holders and the company as if they had respectively covenanted to the same effect, and these, or such of them as are chosen by the company, being registered, and the registrar having certified that the company is incorporated, the shareholders become a body corporate by the name in the memorandum of association. But it must be remembered that if twenty persons or more after the 2nd of November, 1862, carry on in partner- ship any trade or business having gain for its object, unless so registered, or authorized by some other statute, or engaged in mining in the Stannaries, each of them may be sued for the whole debts of the co-part- nership without joining any other member. As to con- tracts by companies which come within the prohibition 415 397 PARTIES TO CONTEACTS. [lECT. IX. contained in 25 & 26 Vict., c. 89 (The Companies Act, 1862), s. 4, see ante, p. *292. The objects for which the company is established, when once defined by the memorandum of association, cannot be departed from, and, therefore, a contract made by the directors of the company upon a matter not included in the memorandum of association is tdtra vires of the directors and void, and cannot afterwards pj.oqo-| be ratified by the assent of Hhe whole body of the shareholders (d). It is indeed settled law that a statutory corporation created by Act of Parlia- ment for a particular purpose is limited as to all its powers by the ]3urposes of its incorporation as defined in the Act, and contracts in excess of those powers so limited are void {e). The doctrine of ulb^a vires, how- ever, as thus explained, is to be applied reasonably, so that whatever is fairly incidental to those things which the legislature has authorized by an Act of Parliament, ought not (unless expressly prohibited) to be held as ultra vires (/). The cases illustrating this doctrine are very numerous, but to discuss them further would carry us beyond the limits of these Lectures, and I must there- fore pass on with this brief notice of it (^). Having, then, thus delineated the name by which a public company incorporated under the Act of 1862 may contract, and the sort of contracts which it may make, we come to consider the '"manner in L -J which it may make them. That Act gave no (d) Ashbury Railway Carriage and Iron Co. v. Riche, L. R. 7 H. L. 653 ; 44 L. J. (Ex.) 18-5, reversing Riche v. Ashbury Railway Carriage and Iron Co., L. R. 9 Ex 224; 43 L. J. (Ex.) 177. (e) Ashbury Railway Carriage and Iron Co. v. Riche, L. R. 7 II. L. 653, 693; 44 L. J. (Ex.) 185, 209 ; Eastern Counties Ry. Co. v. Hawkes, 5 H. L. C. 331. (/) Att.-Gen. v. Great Eastern Ry. Co , 5 App. Cas.473 ; 49 L. J. (Ch.) 545. (g) See on the subject of contracts ultra vires of companies, Lindley on Part- nership, Bk. ii. c. 1. s. 2, pp. 249-253, 4th ed. ; see, too, Brice on Ultra Vires. 41G LECT. IX.] COMPANIES. 399 form of contracting ; but as companies registered under tliis Act are incorj)orated by sect. 18, the modes by which a corporation contracts were in general aj)plicable to them (h). The powers, however, of companies regis- tered under the Companies Act, 1862, as to the manner of contracting have been greatly enlarged by the Com- panies Act, 1867 (30 & 81 Vict., c. 131), s. 37, under which section contracts on behalf of any such company may be made as follows : — " (1.) Any contract, which, if made between private persons, would be by law required to be in writing, and if made according to English law to be under seal, may be made on behalf of the Company in writing under the common seal of the Company, and such contract may be in the same manner varied or discharged : " (2.) Any contract, which, if made between private persons, would be by law required to be in writing, and signed by the parties to be charged therewith, may be made on behalf of the Company in writ- ing, signed by any person acting under the ex- press or implied authority of the Company, and such contract may in the same manner be varied or discharged : " (3.) Any contract, which, if made between r*4nr\-i ^private persons, would by law be valid, although made by parol only, and not reduced into writing, may be made by parol on behalf of the Company by any person acting under the express or implied authority of the Company, and such contract may in the same way be varied or dis- charged." The section concludes with declaring '* that all contracts made according to the provisions (h) See South of Ireland Colliery Co. v. Waddle, L. R. 3 C. P. 463, 4 C P. 617 (Ex. Ch.) ; S. C, 37 L. J. (C. P.) 211, 38 lb. 338, ante, p. *377. 27 417 400 PARTIES TO CONTEACTS. [lECT. IX. therein contained shall be effectual in law, and shall be binding upon the Company and their successors and all other parties thereto, their heirs, executors, or administrators, as the case may be." By s. 55 of the principal Act, the company by in- strument under their common seal, may empower any person as their attorney to execute deeds in their behalf anywhere out of the United Kingdom, and any deed so signed by the attorney on behalf of the company and under his seal shall be as binding as if under the com- pany's seal. By s. 47 of the same Act, bills of exchange and prom- issory notes shall be deemed to have been made, accepted, or endorsed on behalf of any company under this Act, if made, accepted, or endorsed, in the name of the com- pany by any one acting under their express or implied authority, or if made, accepted, or endorsed by or on behalf of the company by any person acting under the authority of the company, and will be binding on them. Where a promis'sory note was made in this form : r*4nn "Three ^months after date we jointly promise to pay to F. G. or order £600 for value re- ceived in stock, on account of the London and Birming- ham Iron and Hardware Company, Limited. Payable at the London Joint Stock Bank, Princes Street, Man- sion House. — William Melrose, H. W. Wood, John Harris, Directors; Edwin Guest, Secretary," — the Court considered that the note was made in the name of the company within the similar provisions of 19 & 20 Vict., c. 47, s. 43 (now repealed), and was therefore binding on the company, and not on the directors who signed it (i). Still, it must not be understood that either (i) LindustJ Melrose, 27 L.J. (Ex.) 326; 3 H. & N. 177. See Smith v. Johnson, lb. 363 ; 3 H. & N. 222 ; Penrose v. Martin, 28 L. J. (Q. B.) 28 ; Alexander v. Sizer, L. E. 4 Ex. 102 ; 38 L. J. (Ex.) 59 (where J. S, the 418 LECT. IX.] COMPANIES. 401 by the above 47th sect, or elsewhere by the Act of 1862, is the power of accepting bills of exchange or issuing negotiable instruments given to companies as an incident of their incorporation under that Act. The Act leaves the power of a company so incorporated, with regard to negotiable securities, to be determined upon the proper construction of the memorandum and articles of association. There may, under the Act, be companies which ^communicate to their directors r:^4rv9-| the power to bind the shareholders by negotia- ble instruments. There may be companies which do not communicate any such power. If the power is to be given to the directors it must be given by the memo- randum, and articles of association (k). Preserving the forms thus required, a joint stock com- pany may enter into any lawful contracts requisite to attain the objects for which it was established. Bearing in mind what has been said of the illegality of con- tracts uUi'a vires of the company, it will not probably be very difficult to determine whether any proposed con- tract is such as will bind the company with regard to tlie objects declared in the memorandum and articles of association. Upon such contracts the company thus in- corporated may sue and be sued like any other corpora- tion. If the company, on judgment being obtained against it, does not pay or satisfy the judgment, and execution issued thereon is unsatisfied in whole or part, the company shall be deemed unable to pay its debts (s. 80), and jiroceedings may then be taken for winding up secretary of a railway company, was held not to be personally liable, on a note signtr-d by him," J. S., Secretary") ; Dutton v. Marsh, L. R. 6 Q. B. 3G1 (in which case the directors were held personally liable as the makers of a note to which the company's seal was affixed). {k) Peruvian Railways Co v. Thames and Mersey Ins. Co., per Lord Cairns, L. J., L. R. 2 Ch. App. 617, 623, 36 L. J. (Ch.) 864, 865. See also ante, p. ♦374. 419 402 PARTIES TO CONTRACTS. [lECT. IX. tlie company, as it is called (s. 79). The result of these as to the liability of the existing shareholders is, that they shall upon the winding up be liable to con- tribute to the assets of the comjDany, to an *amount L '^J sufficient to pay its debts, and the costs, charges, and expenses of winding it up ; but if the company is limited, each shareholder will be liable to contribute to the assets of the company to the amount, if any, which may remain unpaid on the shares held or the amount guaranteed by him (ss. 38, 90, 134). Moreover, no person who has ceased to be a shareholder for the period of one year prior to the commencement of the winding up, shall be liable to contribute to those as- sets, nor shall any past member be liable in respect of any debts of the company contracted since he ceased to be a shareholder (s. 38). But if the company being wound up be limited, no past or j)resent member can be made to contribute more than the amount unpaid on his share, or the amount he has guaranteed ; nor, whether the company be limited or not, shall any past member be liable to contribute, unless the existing members are unable to satisfy the contributions required. The lia- bility of any person to contribute to the assets of a com- pany registered under the Act, in the event of its being wound up, is to be deemed to create a debt of the nature of a specialty accruing due from such person at the time when his liability commenced, but payable at the times when calls shall be made for enforcing such liability (s. 75). As to the rights of shareholders against the company, every person who has accepted any share in a company registered under this Act, and whose *name is ^ -■ entered in the register of members, shall for the purposes of this Act be deemed a member. The transfer of any share may be in a form provided by the 420 LEdT. IX.] MODE OF CONTRACTING. AGENTS. 404 Act, and to be executed by transferor and transferee ; but the transferor shall be deemed to remain a holder of his share until the name of the transferee is entered on the register, and the title of every shareholder to his shares shall be a certificate under the common seal of the company specifying the shares held by him. Finally, the amount of calls for the time being unpaid on his shares shall be deemed a debt due from the shareholder to the company (ss. 23, 31, Table A.) (/). I have now specified the various classes of parties with, regard to whose competency to enter into contracts I had any particular observations to make ; and now, as- suming that none of the various cases of disability which I have mentioned arises, but that the parties entering into the contract are competent by law to do so, there remains one other *very important subject to ad- vert to, namely, the mode in which they may ■- -• become parties to the contract. And this must be in one of two ways ; either personally or by the interven- tion of an agent. There are few branches, perhaps no branch, of the law of England, to which it becomes so often necessary to refei", as that which regulates the rights of parties under contracts made by agents. The truth is, that, as society is now constituted, the business of life has become so complicated, that " no man's individual efforts can embrace all the subjects with which he is called on to deal." Hence we are oliged to transact a variety of business and enter into a variety of engagements through (l) It seems undesirable to introduce more fully the subject of the law of joint-stock companies within the limits of this work. For further information on that subject reference may be made to the chapter on Joint Stock Com- panies in the 9th edition of Smith's Mercantile Law, by Mr. Dowdeswell, where the statutes are abridged and the leading decisions arranged with singular fulness, clearness, and brevity. The student will also find great advantage in consulting on this subject the last edition of Lindley on Partner- ship. 421 405 PAKTIES TO CONTEACTS. [lECT. IX. the medium of agents, the precise eifect of whose acts in binding or advantaging us becomes of course a matter of the utmost practical importance. I cannot, how- ever, attempt, in the time which remains to me for that purpose, to do more than state the general principles by which the subject (so far as relates to contracts) is regulated. Generally speaking, whatever contract a man may enter into in his own person, he may, if he think lit, appoint an agent to enter into in his behalf. There are, indeed, one or tAvo exceptions to this rule, which arise out of the wording of certain Acts of Parliament, requiring the intervention of the principal party him- self in certain contracts. For instance, a man could not PHOfM ^PPO^^^ ^^ agent to *sign a writing for the pur- pose of exempting a case from the operation of the Statute of Limitations, as 9 Geo. IV., c. 14, s. 1, required the writing to be signed by the party charge- able thereby (m). Now, however, by 19 & 20 Vict., c. 97 (Mercantile Law Amendment Act, 18-56), s. 13, the signature of a duly authorized agent is sufficient in that CMse. Nor can a person who objects to the name of another being retained upon the list of voters in a par- liamentary borough empower an agent to sign the objection for him {n), as 6 & 7 Vict., c. 18, s. 100, re- quires every notice of objection to be signed by the person objecting. But it seems that, unless strictly required to be signed by the principal, it is sufficient if a contract required to be in writing, be signed by an authorized agent (o). (m) Hyde v. Johnson, 2 Bing. N. C. (29 E. C. L. E.) 176; Ley v. Peter, 27 L. J. (E.X.) 239; 3H. &N. 101. (rt) Toms, app., Cuming, resp., 7 M. &Gr. (49 E. C. L. E.) 88. See Davies v. Hopkins, 27 L. J. (C. P.) 6 ; 3 C. B. (N. S.) (91 E. C. L. E.) 376. (o) Morton v. Copeland, 24 L. J. (C. P.) 169 ; 16 C. B. (81 E. C. L. E.) 517. 422 LECT. IX.] CONTRACTS BY AGENTS. 406 But, generally speaking, whatever contract a man may lawfully enter into himself, he may appoint an agent to enter into for him. There is, however, another extensive and important exception to this rule, which takes place when a man is himself an agent (^9). He cannot, in this instance, appoint an agent to transact the matters entrusted to his own *agency. The r-^.AOj-] exception evidently arises from the very nature of his own appointment ; for it is one thing to trust a man's discretion to transact your affairs and for which you may know him to be quite competent, but alto- gether another and a different thing to trust his discre- tion to select a stranger to transact your affairs at your responsibility. The maxims of law, therefore, are — *^ Delegatus non potest delegare,^^ and " Vicarius non kabet vicariurn " — maxims which, it is obvious, are necessary for the principal's protection, but which, it is clear, cannot apply where you give your agent power to appoint a deputy either expressly (5"), or by implication. For such a power may be implied, either from the con- duct of the parties to the original contract of agency, the usage of trade, or the nature of the particular busi- ness which is the subject of the agency ; or again, where in the course of the employment, unforeseen emergencies arise which impose upon the agent the necessity of appointing a substitute (r). Now the considerations on which I shall have oc- casion to touch, relate to one of four points into which what I have to say on this subject may be (p) Combe's case, 9 Co. 76 b.; Cobb v. Becke, 6 Q. B. (51 E. C. L. R.) 930 ; Cockran v. Islam, 2 M. & Selw. 301, n. [q) Moon V. Whitney Union, 3 Bing. N. C. (32 E. C. L. R.) 817 ; Lord v. Hall, 8 C. B. (60 E. C.L. R.) C27. (r) See the judgment of the Court of Appeal (delivered by ThesiijKr, L. J.) in De Bussche v. Alt, 8 Ch. Div. at pp. 310, 311; 47 L. J. (Cli.) pp. 386, 387. 423 408 PAETIES TO CONTRACTS. [lECT. IX. r*40S1 ^conveniently enough distributed; and they relate to the questions — 1. Who may be an agent. 2. How an agent is appointed. 3. How far his contracts bind his principal. 4. How far the principal may be advantaged by them. Now, with regard to the fii^st point, namely, who is competent to be an agent, I have to observe, that it by no means follows that a person who is not competent to contract himself is therefore not competent to contract as agent for another person ; thus it has been decided that an infant may be an agent, or even a married woman, though she could not have contracted in her own right. Thus, where a married woman kept a school, at which the defendant had placed his daughter, and drew upon him a bill for the expenses of the daughter's edu- cation, which bill, after he had accepted it, she endorsed to the plaintiffs, and the drawing and endorsing of the bill were both in the wife's name, but with the hus- band's assent, who also obtained the value of the bill from the plaintiff's, it was considered that there was ample evidence of the husband having authorized the drawing and endorsing of the bill, and that there was nothing to prevent his making his wife his agent for that purpose. The defendant therefore as acceptor, r*40Q"l *^^^^ liable to the plaintiffs as endorsees (s). In a very similar case, where a wife accepted in her own name a bill drawn upon her husband, and his authority was proved, he was held liable. To the ob- (s) Prestwick v. Marshall, 7 Bing. (20 E. C. L. E.) 56o ; Prince v. Brunatte, 1 Bing. N. C. (27 E. C. L. E.) 435. See Lord v. Hall, 8 C. B. (65 E. C. L. E.) 627. 424 LECT. IX.] CONTRACTS BY AGENTS. 409 jectioii that a drawee cannot bind himself otherwise than by writing his own name on the bill, which you are no doubt aware is the general practice in accepting bills, it was asked, would he not be liable if, with his ow^n hand, he had accepted the bill by writing another's name across? The only difference was, that he had done so by the hand of his wife. Had he done it with his own hand, it clearly would have been his own ac- ceptance, and the Court held that there was no rule of law which made such an authority void. Nobody but the defendant could have accejoted the bill so as to bind, and he accepted it by the hand and in the name of his wife {i). It will be obvious that the general reason why persons incapacitated to contract may, notwith- standing their incapacity, act as agents in the contracts of others, is, that their incapacity is personal, and that such contracts are not their own, but the contracts of those whose agents they are. But it is held that, upon the peculiar wording of the Statute of Frauds, one of two parties entering into a contract, such as we have seen *that Act re- r*4i/)-| quires should be in writing and signed by the party to be charged thereby, cannot be agent for the other, even with that other's consent, so as to bind him by his signature to such a writing {u). Thus, Avhere the plaintiff, an auctioneer, sued the defendant for not paying for goods })urchased by him, and, the goods not having been delivered, the only evidence of the con- tract was the book kept by the plaintiif as an auctioneer, in which he had duly entered the diflTerent biddings opposite the lots ; the Court of King's Bench held (0 Lindus v. Bradwell, 5 C. B. (57 E. C. L. R.) 583. (u) Wright V. Dannah, 2 Camp. 203 ; Farebrother v. Simmons, 5 B & Aid. (7 E. C. L. R.) 333; Sharman v. Brandt, L. R. 6 Q. B. 720; 40 L. J. (Q. li.) 312. 425 410 PARTIES TO CONTRACTS. [lECT. IX. that, although in general an auctioneer may be con- sidered as the agent and witness of both parties (the vendor and the purchaser), yet when he elects, as he may do, to sue himself as one of the contracting par- ties, the agent who is to bind a defendant by his signa- ture must be some third person, and not the other con- tracting party upon the record {x). To allow it, indeed, would seem to amount to a direct dispensation with the signature of the party to be bound, which, whether by P4111 ^^^^ ^^^^ ^^ ^^^^ "^agent's hand, the statute re- quires. But it seems to be no violation of the requirement, — the hand of the agent or principal, — tliat the agent of the one party should act as the agent of the other, although, of course, in such a case clear evidence would be required to show his authority, con- stituting him the agent of the latter. Thus, in an action by an auctioneer against a purchaser of goods sold by auction, the entry in the auctioneer's sale-book, made bv the auctioneer's clerk who W'as assistins; at the sale, and as each lot was knocked down named the jiur- chaser aloud, and on assent from him made an entry of the sale to him, was held a sufficient memorandum within the 17th section of the Statute of Frauds ; the clerk being, in the first instance, tlie agent of the auc- tioneer, and constituted the agent of the purchaser by the assent of the latter, when told by the clerk that the lot was knocked down to him {y). But wliere the traveller of a wholesale dealer, calling on a shopkeeper to sell his principal's goods, and having by parol sold him certain sugar, was desired by the latter to make, {x) Farebrotlier v. Simmons, supra. An auctioneer, however, is only the agent of both vendor and pureliaser at tlie sale ; when the sale is over the rule does not apply. His signature therefore, on a subsequent sale of unsold lots left over, would not bind either party in the absence of evidence of sub- Bequeni authority. Mews v. Carr, 1 H. & N. 484; 26 L. J. (Ex.) 39. [y] Bird i-. Boulter, 4 B. & Ad. (24 E. C. L. R.) 443. 426 LECT. IX.] CONTRACTS BY AGENTS. 411 in liis (the shopkeeper's) book, a memorandum of the transaction, and thereupon made the following — " Of North &Co., 30 matsmaurs, at 71s., — cash 2 months, — Fenning's Wharf," and signed it with his own name ; the sugar having been destroyed before it was delivered, it became ^necessary to prove the sale by a r-^4-|9-| written memorandum ; but these facts were held insufficient to show that the traveller was consti- tuted the agent of the shopkeeper to bind him under the statute {z). Indeed, it seems clear, as observed in the case, that the signing of the entry in the defend- ant's book would tend to make it obligatory on the plaintiff, the vendor, rather than on the defendant, the shopkeeper. With regard to the second point, namely, in what manner an agent is to be appointed : — Whenever there is no particular rule of law or special statutory provi- sion pointing out a particular mode of appointment, he may be appointed even by bare words. But there are some cases in which the Common or Statute Law does require a particular mode of appointment ; for instance it is a rule of Common Law, that an agent wdio is to contract for his principal by deed, must himself be appointed by deed (a)} (z) Graham v. Musson, 5 Bing. IST. C. (35 E. C. L. R.) 603 ; Graham v. Fretwell, 3 M. & Gr. (42 E. C. L. E.) 368 j Mews v. Carr, 26 L. J. (Ex.) 39 ; 1 H. & N. 484. (a) Harrison v. Jackson, 7 T. E. 209, ^ M'Murty v. Frank, 4 Mon. 39 ; Cummings v. Cassily, 5 B. Men. 74 ; Boyd V. Dodson, 5 Humph. 37 ; Bragg v. Fessenden, 1 1 111. 544 ; Damon v. Granby, 2 Pick. 352; Blood r. Goodrich, 12 Wend. 525; Wells v. Evans, 20 lb 251 ; Rhode t;. Louthain, 8 Blackf. 41.3. Perhaps the most important as well as frequently recurring cases to which this common law rule applies, are those of contracts under seal made by one member of a partnership without au- thority under seal from the other. — r. Where a man's wife signed his name to a deed and sealed it, and he subse- 427 412 PARTIES TO CONTRACTS. [lECT. IX. Again, a corporation, as it can, generally speaking, do no act except by deed ; so it cannot, generally s})eak- ing, a])point an agent in any other way. There are, indeed, one or two exceptions to this, as you have seen there are to the rule which obliges them to contract by P deed, particularly in the cases of ""trading com- L -' panics. You will find the rule and tlie excep- tions discussed in Dunston v. Imj^erial Gas Light Com- pany [b). With regard to the case of a statute requir- ing a particular mode of appointment, you may take, for example, the Statute of Frauds, the 1st, 2nd, and 3rd sections of which require, in express terms, that the agent who is to do any of the acts mentioned in those sections shall be appointed by writing, whereas the 4th and 17th sections contain no such provision. The consequence, of course, is, that in cases within these latter sections the agent's authority need not be in writing (c). With regard to the third point, namely, in what cases the principal is bound by his agent's contract : — It is, of course, obvious, at first sight, that, so far as the agent's authority extends, his principal is bound by all acts done in pursuance of that authority.^ So far there (6) 3 B. & Ad. (23 E. C. L. R.) 125. (c) Emmerson v. Ileelis, 2 Taunt. 46. quently acknowledged the deed before a magistrate, it was held that this was a ratification and adoption of the deed which bound him : Bartlett v. Drake, 100 Mass. 174. And in a subsequent case in the same court Gray, C. J., said, "The law is settled in this comiru)nwealth that the unauthorized execution of a deed in the name either of a partnership or of an individual may be rati- fied by parol :" Holbrook v. Chamberlin, 116 lb. 161. Sed contra: Stetson v. Patton, 2 Greenl. 358; Despatch Line v. Man. Co., 12 N. H. 205; see Blood t;. Goodrich, 9 Wend. 77. ' Every one who deals with an agent is bound, at his peril, to ascertain the extent of his authority: Powell i'. Henry, 27 Ala. 612. The authority of a general agent to contract so as to bind his principal is only limited to the usual and ordinary means of accom]ilishing the business entrusted to him: Williams v. Getty, 31 Pa. St. 461 ; McAlpin v. Cassidy, 17 Tex. 462.— S. 428 LECT. IX.] CONTRACTS BY AGENTS. 413 can be no doubt or difficulty whatever. But the cases in which doubts and difficulties arise, are those in which the agent has gone beyond his authority — lias made some contract which his instructions do not authorize; and then the question arises whether his principal shall or shall not be bound by it. Now, in order to solve this question, it is necessary, in the first instance, to understand the distinction between general and par- ticular agency. A general agent is an agent entrusted with all his principal's ^business in some specific r*4i4-j line, of some specific kind. A particular agent is an agent employed specially for some one special pur- pose. For instance, if I entrust another with the sale of a particular horse, of which I am desirous of dispos- ing, he is a particular agent to transact that particular business {d). But if I appoint an agent to sell all my horses, and consign horses to him from time to time for sale, he is my general agent in that line of business. Now, there is this important distinction between con- tracts made by general, and those made by particular, agents — namely, that if a particular agent exceed his authority, his principal is not bound by what he does ;^ {d) Brady v. Tod, 30 L, J. (C. P.) 223 ; 9 C. B. (N. S.) (99 E. C. L. R.) 592. ^ Thus, in Batty v. Carswell, 2 Johns. 48, where one who was authorized to sign a note for another for $250, payable in six months, signed one payable in sixty days, it was held that the principal was not liable, because the authority, which was a special one, was not strictly pursued. So, a clerk in a retail store has no authority to sell by wholesale, or to delirer goods in pay- ment of or security for debts : Beals r. Allen, 18 Johns. 362 ; Hampton v. Mat- thews, 14 Pa. St. 107. So, a clerk employed to do outdoor business of a mer- chant, such as to negotiate purchases and charter-parties, present bills of lading for signature, &c., has no authority to pledge these bills of lading, or receive advances on them : Zachrisson v. Ahman, 2 Sandf. 68. So, one employed by a merchant to purchase goods, give notes, and do all other things in his business as merchant will not be authorized to mortgage goods in the merchant's store: Reeves v. Baldwin, 1 Smith, 170. So, one having 429 414 PARTIES TO CONTRACTS. [lECT. IX. whereas, if a general agent exceed liis authority, hi? principal is bound, provided what he does is within the ordinary and usual scope of the business he is deputed to transact. For instance, if I employ A. to carry a bale of cottons from Manchester to Liverpool, and he sells them, I am not bound by the sale, Imt may bring an action of trover for them against the purchaser ; whereas, had I entrusted them to my factor for the same purpose, I should have been bound by the sale, that being a transaction within the ordinary scope of his business as factor {e)} (e) See Fenn v. Harrison, 3 T. R. 757 ; 4 T. R. 177. authority to collect a note, has none to take a sealed note for the amount, and there will be no merger of the original debt: McCuUoch v. McKee, 16 Pa. St. 289. So, if a shopman authorized to receive money over the counter only re- ceives it elsewhere than in the shop, the payment is not good : Kaye v. Brett, 5 Exch. 273. Other instances of the application of this familiar rule may be found in Andrews v. Kneeland, 6 Cow. 354 ; Thompson v. Stewart, 3 Conn. 171 ; Snow v. Perry, 9 Pick. 542; Lobdell r. Baker, 1 Mete. 201 ; Huntington V. Wilder, 6 Vt. 234; Brown v. Billings, 22 lb. 98; Gordon v. Buchanan, 5 Yerg. 71 ; Bank of Hamburg v. Johnson, 3 Rich. 42 ; Carter v. Taylor, 6 Sm. 6 M. 367 ; Shriver v. Stevens, 12 Pa. St. 258 ; Scott v. McGrath, 7 Barb. 53 ; Paige V. Stone, 10 Mete. 160. — r. Taylor v. Labeaume, 14 Mo. 572 ; Nash ?>. Drew, 5 Cush. 422; The Methuen Co. V. Hayes, 33 Me. 169 ; Bailey v Rawley, 1 Swan, 295 ; Kirk v. Hiatt, 2 Ind. 322 ; Towle v. Leavitt, 23 N. H. 360 ; Huber v. Zimmerman, 21 Ala. 488. An agent employed to buy and sell has no authority to bind his prin- cipal by a negotiable note given for notes bought : Temple v. Pomroy, 4 Gray, 128.— s. ' A factor is a general, not a special agent, entrusted with the possession disposal, and apparent ownership of property ; and having a general power to sell, he may do so for cash or on credit, and receive in payment notes or any kind of property. Notwithstanding this general authority, it was, however, held in England, in the case of Paterson v. Tash, 2 Str. 1178, that "a factor cannot bind or affect the property of the goods by pledging them as a security for his own debt, though there may be the formality of a bill of parcels and a receipt," and this decision has been followed, though with occasional reluctance, by numerous cases : Daubigny v. Duval, 5 T. R. 604 ; Martini v. Coles, 1 M. & S. 140, 493; Graham v. Dyster, 6 lb. 1, 14; Queirozv. Trueman, 3 B. & C. (10 E. C. L. R.) 342 ; Fielding v. Kymer, 2 Brod. & Bing. (6 E. C. L. R.) 639. Such is recognized as the rule on this side of the Atlantic, unless where it has been altered by statute : Van Amringe v, Peabody, 1 Mas. 440; Kinder v. Shaw, 430 LECT. IX.] CONTRACTS BY AGENTS. 415 *The case of Whitehead v. Tuckett (/) is a r.;..». ^^ very good illustration of the rule, that, although the express instructions are exceeded, yet, if what he does is within the usual scope of the business he is deputed to transact, the agent binds his principal by so doing. There, Sill & Co., who were brokers at Liver- pool, were employed by the defendant, a wholesale grocer at Bristol, to buy and sell on his account great quantities of sugar. The greater part was bought on speculation for resale, and was resold at Liverpool ; but some was occasionally sent to the defendant. Sill tate, wdio sold them lor the benefit of the estate. At the time of sale no administration to the intestate had been granted. Subsequently the plaintiff took out letters of administration. The Court, after first laying it down that the title of administrator relates back to the death of the intestate, decided that the plaintiff had, by suing, ratified the sale by the agent, and that it was no objection that he was unknown to the agent at *the time of sale (a). But, as the question is, L '^ J whetlier the principal did or did not approve of the transaction to which it is endeavoured to make him a party through the agency of another, it is held tliat tiie former cannot ratify a part of the trans- action and repudiate the rest, but must adopt the whole or none (/>). But, where a person at the time of doing an act does not profess to be therein acting as an agent, there is nothing, strictly speaking, to ratify ; and another person, however interested, cannot afterwards, by adopting the act, make the former his agent, and (a) Foster v. Bates, 12 M. & W. 220 ; Lewis v. Read, 13 M. & W. 834 ; Rob- inson v. Gleadow, 2 Bing. N. C. (29 E. C. L. R.) 156 ; Freeman v. Bosher, 13 Q. B. (66 E. C. L. R.) 780. ih) Wilson V. Poiilter, 2 Str, 869 ; Brewer v. Sparrow, 7 B. & C. (14 E.G. L. R.) 310. 444 LECT. [X.] CONTRACTS BY AGENTS. 431 tliereby incur any liability or take any benefit under the unauthorized act. This is a rule of considerable importance, and is fully explained in the case of Wilson V. Tuinman {c)} But the rule, that the agent acting within the extent of his usual employment binds his principal, though in the particular case the agent is exceeding his author- ity, is subject to the observation that the person who contracts with the agent has not notice of the limitation of his authority. It is very right that a stranger who sees an agent permitted to contract generally for his principal in this or that business should be safe in deal- ing "''with him, on the assumption that he has r:H4Qo-| authority. But if he knows that he has no authority, in that case to hold the principal bound by a contract made contrary to the agent's real instruc- tions, would be to give effect to a fraud ; and accord- ingly, wherever the person who contracts with an agent knows that that agent's authority is limited, and never- theless contracts with him beyond those limits, he does so at his peril, for the principal is not bound (d). And on this account it is wise and usual for persons who have been in the habit of employing a general agent, and are desirous of discontinuing him, to give notice to the world of their intention in the Gazette, and to those persons with whom they are in the habit of dealing, by circulars (e). For the agent, although discontinued, might still make his principal liable to those who dealt with the agent, without notice of the revocation of his authority. This rule is well illustrated by the case of (c) 6 M. & Gr. (46 E. C. L. K.) 236 ; Anmi., Godbolt, 109. (d) See Trueman r. Loder, It A. & E. (39 E. C. L. R.) 689, (e) See Smith's Merc. Law, 9th ed. 122. ^ Bearce v. Bowker, 115 Mass. 129 ; Carson v. Cummings, 69 Mo. 325. 445 432 PARTIES TO CONTRACTS. [lECT. IX. Drew V, Nunn (/). There the plaintiif was a trades- man, and the defendant had given his wife authority to deal with the plaintiff, and had held her out as his agent and as entitled to pledge his credit. Afterwards, the defendant became insane, and whilst his malady lasted, his wife ordered goods from the plaintiff, who piqo-i accordingly supplied them. At the *time ot supplying the goods the plaintiff was unaware that the defendant had become insane. The defendant afterwards recovered his reason, and then refused to pay for the goods supplied to his wife by the plaintiff. It was held that even if the insanity were so complete as to amount to a revocation of the authority as between the principal and the agent, yet that as the plaintiff had no notice of it the defendant was liable for the price of the goods. (/) 4 Q. B. D. 661 ; 48 L. J. (Q. B.) 591. 44ti *LECTUEE X. [*434] PRINCIPAL AND AGENT. THEIR RESPECTIVE LIABILI- TIES. AGENCY OF PARTNERS, BROKERS, FAC- TORS, WIVES. RECAPITULATION. REMEDIES BY ACTION. STATUTES OF LIMITATION. Pursuing the consideration of the points arising upon contracts made through the medium of agents, and having disposed of most of those which relate to the liability of the principal upon them, the next in order is that which regards his power to take advantage of them. Now, where the agent (a), when he makes the contract, states who his principal is, and states that he is contracting on the behalf of that principal ; or where (though there may be no express statement to that effect) the circumstances of the transaction can be shown to have been so completely within the knowl- edge of the parties to it that there can be no doubt that it was understood at the time that the person who actu- ally made the contract made it as an agent, and intended to make it on behalf of his principal ; in such cases there can of course be no doubt of the principal's right to take advantage of it, and enforce it to the fullest ex- tent. It is, in *truth, as if he had put his own pMoc-i hand to it. In such cases, therefore, there can be no difficulty. But the cases in which difficulties arise, are those in which the agent, being really only the substitute for another, nevertheless contracts in his own name as if he were himself the principal.^ (a) Seignior v. Wolmer, Godb. 360. » George v. Clagett, 7 T. R. 359 ; Purchell v. Salter, 1 Q. B. (41 E. C. L. R.j 197 J Sims V. Bond, 5 B. & Ad. (27 E. C. L. R.) 393 ; Lime Rock Bank v. 447 435 CONTRACTS BY AGENTS. [lECT. X. Now, in such a case, the i^rincipal may adopt and enforce the contract (b), but his right to do so is subject to a qualification which has been dictated by conimon sense and public convenience, namely, that, on declaring himself, he stands in the place of the agent who made it; so that the other contracting party enjoys the same rights against him which he would have enjoyed tigainst the agent who made it, had that agent really been the principal. For instance, if I buy a parcel of goods from A., who sells tbem to me in his own name, though he is really only the factor of B., whose property the goods are, B. may, if he think proper, declare himself the principal, and require me to pay the price to liim ; but if the factor owed me money which I could have set off against the price had the factor sued me for it, I have the right of setting it off against B., in like man- ner as I might have done against the factor. And the good sense and justice of this is obvious; for it may be exceedingly inconvenient, indeed ruinous to me, to pay f^.^^-, *iii hard cash ; and my knowledge that I should r 4361 . *- -J have this set-off may have been my only in- (b) Cooke V. Seeley, 17 L. J. (Ex.) 286 ; 2 Ex. 746, S. C. ; Spurr v. Cass, L- E. 6 Q. B. 656 ; 39 L. J. (Q. B.) 249. Plimpton, 17 Pick. 159 ; Leeds v. Marine Ins. Co., 6 Wheat. 570 ; Violett v. Powell, 10 B. Mon. 347 ; Parker v. Donaldson, 2 W. & S. 21. As the lecturer has elsewhere expressed it, " in every case in which the agent sues in his own name, two consequences, it must be remembered, follow : 1. That the defendant may avail himself of those defences which would be good as against the agent who is the plaintiff on the record : Gibson v. Winter, 6 B. & Ad. (27 E. C. L. R.) 96; Wilkinson v. Lindo, 7 M. 6i W. 83. 2. That he may avail liimself of those which would be good as against the principal for whose use the action is brought: Welstead v. Levy, 1 M. & Rob. 138 : Meg- ginson v. Harper, 4 Tyr. 94 ; Rex v. Hardwick, 1 1 East, 578 ; Harrison v. Vallance, 1 Bing. (8 E. C. L R.) 45 ; Smith v. Lyon, 3 Camp. 465." Note to Thomson v. Davenport, 2 Sm. L. C. 398. — r. Huntington v. Knox, 7 Cush. 371 ; Doe v. Thompson, 22 N. H. 217.-^. Haverhill Ins. Co. v. Newhall, 1 Allen, 130 ; Quigley v. De Haas, 82 Pa. St. 267 ; Bryson v. Lucas, 84 N. C. 680. 448 LECT. X.] CONTRACTS BY AGENTS. 486 Jucement to buy ; and if I were deprived of it, I should be led into a trap — induced to ]:)urchase upon one ground, and forced to pay wpon a different one. The general rule, that a principal may declare him- self, and take advantage of his agent's contract made without naming him, and this qualification of it (to pre- vent the injustice of which it might otherwise be made the instrument), are both very clearly laid down in the judgment in Sims v. Bond (c) : — " It is a well establislied rule of law," said the L. C. Justice, delivering the judgment of the Court in that case, "that where a contract not under seal is made by an agent in his own name for an undisclosed principal, either the agent or the principal may sue upon it^ — the defendant, in the latter case, being entitled to be placed in the same situa- tion at the time of disclosure as if the agent had been the contracting party."^ This rule is most frequently acted upon in sales by factors, agents, or partners, in which cases either the nominal or the real contractor may sue, but it may be equally applied to other cases. Thus, in George v. Clagett (d),^ the case was this: the (c) 5 B. & Ad. (27 E. C. L. R.) 393 ; Ramazotti v. Bowring, 29 L. J. (Ch.) 30. (d) 7 T. R. 359 ; 2 Smitli L. C. 118, 8th ed. ; Isberg v. Bowden, 22 L. J. (Ex.) 322; 8 Ex. 852. ^ Unless, indeed, the defendant relied on the plaintiff's character as agent, and would not have contracted with him as a principal if he had known hira so to be: Schraalz v. Avery, 3 Eng. L. & Eq. R. 391.— K. ^ If, however, the defendant either knew, or had the reasonable means of knowing that he was dealing, not with an agent, but with a principal, the lat- ter part of the rule, as thus expressed, obviously loses its application : Baring V. Corrie, 2 B. &. Aid. 137 ; so, if the purcliaser knew that the seller was not the owner of the goods, but a factor — in such case, he can have no set-off against the latter, whether the suit be brought in the name of the principal or in his own name : Parker v. Donaldson, 2 W. & S. 9 ; for in neither of these cases is the purchaser deceived. — r. * And see the note to that case in 2 Sm. L. C. 118. — R. 29 449 436 CONTRACTS BY AGENTS. [lECT. X. plaintiff, a clothier, employed Rich and Heapy as his factors, who, besides acting as factors, bought and *sold great quantities of woollen cloths on their '- -^ own account, and carried on all their business at one warehouse. Rich and Heapy became largely in- debted to the defendants on a bill of exchange, and afterwards the latter purchased woollen cloths of them to an amount greater than the debt on the bill. Part of the cloths really belonged to the plaintiff, but the de- fendants did not know it, and on his suing the defend- ants for the price of his cloth so bought by them from Rich and Heapy, the defendants were considered to be entitled to set off the debt of Rich and Heapy to them. "By the statute of set-off (e)," said Holroyd, J., in the very similar case of Carr v. Hinchliff (/), "when there are mutual debts between a plaintiff and a defendant, the latter may set off the debt due to him against that which is claimed. The statute gives him a right to say, that the debt claimed is paid by that which is due to him, and that it operates as an extinguishment of the debt. And now, by analogy to the defence given by the statute, a defendant is also entitled to say that his debt is extinguished by another debt due to him from any person who may be identified wnth the plaintiff." Even where the defendant was aware that he was deal- ing with an agent, a factor, but the latter was accus- tomed to sell in his own name when he had any claim against the owner of the ^'goods for advances, L ' ^ and the purchaser, in buying the goods in ques- tion, bond fide believed that the factor sold them for the purpose. of satisfying such a claim, it was decided that the purchaser was entitled to set off the payments made (e) 2 Geo. 11., c. 22 ; now repealed by 46 & 47 Vict., c. 49, s. 4, but see ss. 6, 7, of the latter Act. (/) 4 B. & C. (10 E. C. L. R.) 553. 450 I LECT. X.] CONTKACTS BY AGENTS. 438 by him to the factor. This was the case of Warner v. M'Kay (ff), where the Court treated the question as be- ing, wliether the defendant had a right to consider that he had paid the factors for those goods. The only doubt arose from the defendant being apprised that the goods belonged to the iDlaintiflfs. But as the factors were accustomed to sell in their own names, and did sell these goods in their own names, and the jury having found that the defendant believed that they had author- ity to sell, and was not bound to inquire further, the Court supported a verdict for the defendant. But if the purchaser knew all along that he was dealing with an agent, he cannot set off, in an action by the principal for the price of goods bought by him of the agent, a debt due from the agent to himself; for that would be treat- ing the agent and the principal as one, where they are not identified, and creating instead of preventing the in- justice which the law thus seeks, by allowing a set-off of this kind, to prevent (A). The real ^grounds on which the before-mentioned cases have been •- -I decided, were stated by the Court of Exchequer, in Is- berg V. Bowden (i), to be "that when a principal per- mits an agent to sell as apparent principal, and after- wards intervenes, the buyer is entitled to be placed in the same situation at the time of the disclosure of the real principal as if the agent had been the real con- tracting party, and is entitled to the same defence, (g) 1 M. & W. 591. See, however, the remarks on this case in Fish t-. Kemp- ton, 7 C. B. (62 E. C. L. R.) 687. {h) Fish V. Kempton, 7 (\ B. (62 E. C. L. R.) 687 ; Dresser v. Norwood, 34 L. J. (C. P.) 48, Ex. Ch. ; Semenza t>. Brinsley, 18 C. B. (N. S.) (114 E. C. L. R.) 467 ; 34 L. J. (C. P.) 161 ; Dixon ex parte, in re Plenley, 4 Ch. Div. 133. See also Mildred v. Maspons, 8 App. Cas. 874, 53 L. J. (Q. B.) 33, affirming Mas- pons V. Mildred, 9 Q. B. D. (C .A.) 530, 51 L. J. (Q. B.) 604 ; New Zealand and Australian Land Co. v. Watson, 7 Q. B. D. 374 (C. A.), 50 L. J. (Q. B.) 433, re- versing S. O. nom. New Zealand, etc., Co. v. Ruston, 5Q. B. D. 474; 49 L. J (Q. B.) 842. (i) 8 Ex. 852. 451 439 CONTRACTS BY AGluNTS. [lECT. X. whether it be by common law or by statute, by payment or by set-off, as he was entitled to at that time against the agent, the apparent principal." TJie principle, how- ever, of George v. Clagett applies only to what may be said to be the proximate motive of dealing with the factor. Thus, it was held, that in the event of the lat- ter's bankruptcy, the defendant would not be allowed to set-off against the princiiDal's claim, all claims arising out of mutual dealings of which defendant might have availed himself, under ss. 31, 39, of the now repealed statute, 32 & 33 Vict., c. 71 (Bankruptcy Act, 1869). The contingency of the bankruptcy and the mode of ^, .^^ settlino; accounts with the trustee '''could not be r 4401 . L -' considered to have been contemplated when the contract was made with the agent {k). It seems suf- ficiently connected with these propositions, to add here, that where the principal does not intervene, but allows the agent to sue in his own name, two consequences fol- low : 1st, that the defendant may avail himself of all defences which would be good against the agent, who is by the supposition the plaintiff on the record (/) ; 2ndly, that he may avail himself of those which would be good against the principal for whose sole use the action has been brought (m). Before leaving this subject, I will say one word with regard to the situation of an agent who contracts in the manner I have just mentioned, without naming his principal. It is settled that, in such a case, the other contracting party may, when he discovers the true state (/t) Turner v. Thomas, L. R. 6 C. P. 610 ; 40 L. J. (C. P.) 271. This deci- sion seems equally applicable to claims arising out of mutual dealings made under the similar sections of 46 & 47 Vict., c. 52 (Bankruptcy Act, 1883), viz., fis. 37, 38. {I) Gibson v. Winter, 5 B. & Ad. (27 E. C. L. R.) 96; Wilkinson v. Lindo, 7 M. & W. 81. (m) May v. Taylor, 6 M. & Gr. (46 E. C. L. R.) 261 ; Megginson v. Harper, 2 C. & M. 322. 452 LECT. X.] CONTRACTS BY AGENTS. 440 of facts, elect to charge him or his principal (/i), wliich- ever he may *tliink most for his advantage. r:M4i-i Thus, in Paterson v. Gandasequi {o), the de- fendant, who was a Spanish merchant, employed Larra- zabal to purchase for him various assortments of goods for the foreign market, for which he was to charge a commission of 2 per cent. Larrazabal applied to the plaintiffs, and requested them to send to his counting- house an assortment of the goods, with terms and prices. Paterson brought patterns of the goods to the counting- house with the terms and prices, when Gandasequi was present. The samples were handed to him. He in- spected them, selected such as he required, and the terms and prices were shown to him, and left ihere; subsequently Larrazabal, in pursuance of directions from Gandasequi, ordered the goods from Paterson. The latter sold the goods on the credit of Larrazabal, made out the invoices in his name, and sent them to him, and Larrazabal debited the amount to Gandasequi. *" The law," said Lord Ellenborough, " has r^.AA9'\ been settled by a variety of cases, that an un- known principal, when discovered, is liable on the con- tracts which his agent makes for him." On the other hand, if the agent contract without naming any prin- cipal, he is himself the person prima facie responsible; (n) The creditor has an election to sue either the one or the other ; but he cannot after he has sued the one to judgment maintain a second action against the other. Priestly v. Fernie, 34 L. J. (Ex.) 172 ; 3 II. & C. 977. The mere fact of filing an affidavit of proof against the estate of an insolvent agent to an undiscovered principal, after tliat undiscovered principal is known to the creditor, is not a conclusive election by tlie creditor to treat the agent as his debtor: Curtit^ v. Williamson, L. R. 10 Q. B. 57 ; 44 L. J. (Q. B.) 27, (o) 15 East, 62; 2 Smith, L. C. 360, 8th ed. ; see also Waring v. Favenck, 1 Camp. 85 ; Kymer v. Suwercropp, 1 Camp. 109 ; Ileald v. Kenworthy, 24 L. J. (Ex.) 76; 10 Exch. 739; Smethurst r. Mitchell, 28 L. J. (Q. B.) 241; Ris- Ijourg V. Bruckner, 27 L. J. (C. P.) 90; 3 C. B (N. S.) (91 E. C. L. R.) 812; Greene v. Koptree, 25 L. J. (C. P.) 297 ; 18 C B. (86 E. C. L. R.) 549 ; Calder V. Dobell, L. R. 6 C. P. 486 ; 40 L. J. (C. P.) 89, 224. 453 442 CONTRACTS BY AGENTS. [lECT. X. and though the other party may, in most eases, elect to charge the employer on discovering him, yet he need not do so, but may, if he please, continue to look to the agent {p). He may also elect to charge either the agent or his principal, where the agent, at the time of making the contract, says that he has a principal, but declines to say who that principal is (q)} It is im- (p) Morgan v. Corder, Paley Prin. and Agent, 3rd edit. p. 372; Smith's Merc. Law, by Dowdeswell, 9th edit. p. 159, &c. ; Paterson t;. Gandasequi, supra. (q) Thomson v. Davenport, 9 B. & C. (17 E. C. L. K.) 78 ; 2 Smith L. C. 377, 8th edit. ; Cooke v. Wilson, 2G L. J. (C. P.) 15 ; 10. B. (N. S.) (87 E. C. L. K.) 153. ' [Note by Mr. J. C. Symons.] The right to sue the principal when dis- closed does not apply to bills of excliange accepted or endorsed by the agent in his own name alone, and not per proc, for by the law of merchants, a chose in action is passed by endorsement, and each party wlio receives the bill is making a contract with the parties upon the face of it, and with no other party whatever. See Beckham v. Drake, 9 M & W. 92, per Lord Abinger, C. B. [Bank of Hamburg v. Wray, 4 Strob. 87.] Bacon v. Sondley, 3 Strob. 542 ; Perth Amboy Manufacturing Co. v. Condit, 21 N. J. 659, unless the circumstances attending the contract are such as to show an intention to look solely to the one and not to tlie other. If the ven- dor, knowing of tlie principal, still credits and looks to the agent as the re- sponsible party, he of course exonerates the principal : Paige v. Stone, 10 Mete. 160 ; Jones v. JEtna. Ins. Co., 14 Conn. 501 ; Ahrens v. Cobb, 9 Humph. 643; Violett v. Powell, 10 B. Mon. 347; Bate v. Burr, 4 Harring. 130; and this, whether the latter has or has not received the property : Ahrens v. Cobb. But it is obvious, that the mere fact of charging the goods to the agent, should not raise a presumption that the vendor thereby meant to rely solely on the latter, unless the name, and perhaps also the situation and cir- cumstances, of the principal be also known to the vendor, for certainly unless he knew the name of the principal, there can be no opportunity of electing between him and the agent : Lapham v. Green, 9 Vt. 407 ; Edwards v. Gold- ing. 20 lb. 30; Henderson v. Mayhew, 2 Gill, 393; and it would seem that unless he knew, also, something of his circumstances, the case would be the same : Raymond v. The Crown and Eagle Mills, 2 Mete. 319 ; Upton v. Gray, 2 Me. 374. See the note to Thomson v. Davenport, 2 Sm. L. C. 398 —r. Brown v. Rundlett, 15 N. H. 360 ; Flovey v. Pitcher, 13 Mo. 191 ; Hy.le v. Paige, 9 Barb. 150 ; Johnson v. Smith, 21 Conn. 627 ; Ogden v. Raymond, l2 lb. 379 ; Sydnor v. Hurd, 8 Tex. 98. In simple contracts, if the agent does not disclose his agency, he binds himself, and so if he exceeds his authority: Uoyce V. Allen, 28 Vt. 234 ; Hodges v. Green, lb. 358; Forney v. Shipp, 4 454 LECT. X.] CONTRACTS BY AGENTS. 442 portant to bear in mind tlie rule, that this election, when once made, is binding. This is the main point which is illustrated by the case of Paterson v. Gandase- qui, already cited, when, under the facts before described, the Court laid down, that if the seller of goods knows, at the time of making the contract of sale, that the buyer, although dealing with him in his own name, is in reality the agent of another, and elects to give credit to the agent, he cannot afterwards recover *tlie r:;:44q-| value from the known principal. In the sub- sequent but almost cotemporary case of Addison v. Gandasequi (r), the latter, who had acted towards the plaintiff in a similar manner to that described in notic- ing the case of Paterson v. Gandasequi, was held not to be liable, Addison having, with full knowledge of the facts, debited Larrazabal in his books. In both these cases there was evidence that the vendor had elected to look to the agent for payment, knowing at the time of the contract, that another person was the principal, and also knowing who that principal was ; but in Paterson V. Gandasequi, there being some doubt how far the plaintiff had a perfect knowledge of the fact that the defendant was the principal at the time of the contract, the Court granted a new trial. There was no such doubt in Addison v. Gandasequi. In the more recent case of Thomson v. Davenport (s), which was a writ of error brought on a judgment obtained in the borough (r) 4 Taunt. 573 ; 2 Smith L. C. 369, 8th edit. (s) Supra, n. {q). Jones, 527; McClelian v. Parker, 27 Mo. 162; Murray v. Carothers, 1 Mete. (Ky.) 71. A written agreement signed "A. B. by C. D. agent," does not bind the agent personally, although the principal resides beyond seas: Bray v. Kettell, 1 Allen, 80. When a person proposes to act as an agent, disclosing the name of his principal, he assumes no personal responsibility, unless he acts fraudulently : Seery v. Socks, 29 111. 313 ; Baker v. ('hanibles, 4 Greene, 428. A party who signed notes as president of a bank which has no legal existence is personally liable on them: Allen i'. Pegram, 16 Iowa, 163. — s. 455 443 CONTRACTS BY AGENTS. [lECT. X. Court of Liverpool against Thomson, the plaintiff in error, one M'Kune having received an order from Thom- son for the purchase of goods, ordered them from Daven- port & Co., the plaintiffs in the Court below, letting them know that they were for his employer, but not mention- ing the name of any principal. Davenport and Co. P4441 ^^™^^ M'Kune as ^purchaser in the invoice of the goods : the Court considered that these plaintiffs, having treated M'Kune as their debtor, whilst ignorant of the real purchaser, were not bound by that election, but might afterwards sue the principal, Thom- son, for the price. " I take it to be a general rule," said Lord Tenterden, " that if a person sells goods (supposing at the time of the contract that he is deal- ing with a principal), but afterwards discovers that the person with whom he has been dealing is not the prin- cipal in the transaction, but agent for a third person, though he may in the meantime have debited the agent with it, lie may afterwards recover the amount from the real principal ; subject, however, to this qualification, that the state of the account between the 'principal and the agent is not altered to the prejudice of the principal. On the other hand, if, at the time of the sale, the seller knows, not only that the person who is nominally deal- ing with him is not principal but agent, and also knows who the principal really is, and notwithstanding all that knowledge, chooses to make the agent his debtor, dealing with him, and him alone, then the seller cannot afterwards, on the failure of the agent, turn round and charge the principal, having once made his election at the titne when he had the power of choosing between the one and the other. The present is a middle case. At the time of the dealing for the goods the plaintiffs r*44'^1 ^^^® informed that *M'Kune, who came to them to buy the goods, was dealing for another, 456 LECT. X.] COXTRACTS BY AGENTS. 445 that is, that he was an af^ent; but they were not in- formed who the principal was. They had not, there- fore, at that time, the means of making their election. It is true, that they might perhaps have obtained those means if they had made further inquiry ; but they made no further inquiry. Not knowing who the prin- cipal really was, they had not the power at that instant of making their election. That being so, it seems to me that this middle case falls, in substance and eftect, within the first proposition that I have mentioned, the case of a person not known to be an agent, and not within the second, where the buyer is not merely known to be an agent, but the name of his principal is also known. There may be another case, and that is, where a British merchant is buying for a foreigner. Accord- ing to the universal understanding of merchants and of all persons in trade, the credit is then considered to be given to the British buyer, and not to the for- eigner" (t), although, of course, a contract may be made by the agent so as to charge the foreigner and not himself {u). Indeed, it hardly requires mention- ing, that the question, which is liable — *the r:\:AAn-i foreign principal or the English agent — is one of intention (v), in which the fact, that the principal debtor is a foreigner residing abroad, renders it highly improbable that the credit should have been given to him {or). (0 See Wilson v. Zulueta, 19 L. J, (Q. B.) 49 ; 14 Q. B. (68 E. C. L. R.) 405, S. C. ; Armstrong v. Stokes, L. R. 7 Q. B., at p. 605, 41 L. J. Q. B., at p. 257 ; Elbinger Actien-Gesellschaft v. Clave, L. E. 8 Q. B. 313, 42 L. J. (Q. B.) 151; Hutton v. Bullock, L. R. 8 Q. B. 331. («) Mahoney v. Kekul^, 23 L. J. (C. P.) 54 ; 14 C. B. (78 E. C. L. R.) 390, S. C. {v) Green v. Koptree, 25 L. J. (Ch.) 297 ; Deslandes v. Gregory, 20 L. J. (Q. B.) 93 ; S. C. in Ex. Ch., 30 L. J. (Q. B.) 36. {x) Lennard v. Robinson, 24 L. J. (Q. B.) 275; 5 E. & B. (85 E. C. L. R.) 125. 457 446 CONTRACTS BY AGEXTS. [lECT. X. But there is this qualification to the right of elec- tion [y), namely, that if the state of accounts between the agent and principal have been altered, so that the principal would be [unjustly] subjected to a loss by the other contracting party's election, the right of election is in such case lost. Suppose, for instance, I employ A. to purchase goods, and he j)urchases them from B. in his own name ; now B., when he discovers me to be the real principal, may elect whether he will treat me or my agent A. as his debtor ; but if, in the meantime, I have paid A. [under circumstances which w^ould make it unjust for B. to treat me as still his debtor (2)], he will lose that right, since otherwise I should have to pay the price twice over. Still, this qualification is itself subject to a minor one, namely, that the principal cannot, by prematurely and improperly settling with r*447l ^^^® agent, deprive the other ^contracting party of his right of election. Suppose, for instance, as in the case I have just put, that I employ A. to pur- chase goods, not for ready money, but at three months' credit. A. purchases in his own name from B. ; B., before the three months have elapsed, discovers the true state of affairs, and elects to take me as his debtor. I should not be allowed to say, in this case, " You are too late; I have settled with A., my agent." The answer would be, " You had no occasion to do so pend- ing the time of credit ; and you cannot, by doing so, deprive B. of his right to elect you as his debtor " [a)} (y) As already mentioned in the judgment of Lord Tenderden just quoted. (z) See Heald v. Kenworthy, 10 Ex. 739 ; 24 L. J. (Ex.) 76 ; Armstrong v. Stokes, L. R. 7 Q. B. 598 ; 41 L. J. (Q. B.) 253. (a) Thomson v. Davenport, supra; and Kymer v. Suwercropp, 1 Camp. 109. ' [Note by Mr. J. C. Symons ] The cases in which an agent is personally liable, and may be sued on the contract he makes, may be thus classed: — In the first place, he is liable, according to the doctrine in Thomson v. 458 LECT. X.] CONTRACTS BY AGENTS. 447 In the case of Kjmer v. Suwercropp, Lord ^lien- borough said, "A person selling goods is not confined to the credit of a broker who buys them, but may resort Davenport, where the principal was not disclosed at the time of the contract ; but if lie were known, and credit given to him at the time, the agent cannot be afterwards sued, provided he acted within the scope of his authority : Pat- ton V. Brittain, 10 Tred. 8. In the second place, the agent is liable, as we have already stated, where he exceeds his authority, or represents himself to have an authority which he has not, the want of authority being unknown to the other party : Jones v. Downman, 4 Q. B. (45 E. C. L. R.) 235 ; [Dusenbury v. Ellis, 3 Johns. Gas. 70; Meech v. Smith, 7 Wend. 315 ; "VYoodes v. Dennett, 9 N. H. 55;] for in such cases the creditor has no remedy against the principal : Wilson v. Bar- throp, 2 M. & W. 863.^ Here again, however, arises a question, as we have seen, how far Smout v. Ibery (supra) is good law, and that the agent is to be held liable where it cannot be proved that he fraudulently misrepresented his authority. But that case clearly decides anotlier very important point, namely, that where a man has been in the habit of dealing with the plaintifl for household goods, the wife is not liable for such as are supplied to her after his death, but before information of his death had been received, she having had originally full authority to contract, and done no wrong in representing her authority as continuing, nor omitted to state any fact within her knowl- edge, relating to it ; the revocation itself being by the act of God, and the continuance of the life of the principal being equally within the knowledge of both parties. In the third place, an agent is liable for himself and his heirs under seal, for the act of the principal, though he describes himself in the deed as cove- nanting for and on behalf of such other person : Hancock v. Hodgson, 4 Bing. (13 E. C. L. R.) 269 ; Appleton v. Binks, 5 East, 148.^ An agent is liable, in the fourth place, where he contracts in writing in his ' Hampton v. Speckenagle, 9 S. & E. 212, unless, of course, the principal should have subsequently ratified the agent's act : Bragg v. Fessenden, 1 1 111. 544 ; Fitzsimmons v. Joslin, 21 Vt. 129 ; but such ratification by the principal must be shown to have been made with a full knowledge of the facts, and an understanding that he would not be liable unless he did so ratify : Fletcher v. Dysart, 9 B. Mon. 413.— E. ^ Burrell v. Jones, 3 B. & Aid. 47 ; Sumner v. Williams, 8 Mass. 162 ; Bel- den V. Seymour, 8 Conn. 24 ; Whiting v. Dewey, 15 Pick. 433 ; Donahoe v. Emery, 9 Mete. 66 ; Mason v. Caldwell, 5 Gilm. 196. It has, however, been held, in a few cases, that where a person expressly covenants in his representa- tive capacity, "and not otherwise," he will not be personally liable, as no false confidence of security is excited on the part of the purchaser: Thayer v. Wendell, 1 Gall. 37, per Story, J. ; Day v. Brown, 2 Ohio, 347 ; Mani'fee v. Morrison, 1 Dana, 208 ; Craddock i'. Stewart, 6 Ala. 77. — B. 459 447 CONTRACTS BY AGENTS. [lECT. X. to the principal on whose account they are bought; and he is no more affected by the state of accounts be- tween the two than I should be were I to deliver goods to a man's servant pursuant to his order, by the con- sideration of whether the servant was indebted to the master, or the master to the servant. If he lets the day of payment go by, he may lead the principal into a sup- position that he relies solely on the broker ; and if, in r*44K1 ^^^^ case, the price of the goods has been paid to the broker on account of this deception, *the own name,' unless it appears on the face of the contract that he did so only as an agent, '^ otherwise he will not be allowed to give parol proof that he con- tracted as agent, so as to relieve himself from responsibility. But parol evi- dence may nevertheless be given to charge an unknown principal, as it does not deny that the contract is binding on those whom, on the face of it, it pur- ports to bind, but shows that it also binds another by reason that the act of the agent in signing the agreement in pursuance of his authority is, in law, the act of the principal: Higgins v. Senior, 8 M. & W. 844, per Parke, B. See also Jones v. Littledale, 1 N. ifc P. (36 E. C. L. K.) 677 ; Magee v. Atkin- son, 2 M. & W. 440. 1 Burrell v. Jones, 3 B. & Aid. 47 ; Hopkins v. Mehaffy, 11 S. & K. 129 ; Kirkpatrick v. Stainer, 22 Wend. 244 ; Taintor v. Prendergrast, 3 Hill, 72 ; Simonds v. Heard, 23 Pick. 121.— R. ^ In Higgins v. Senior, the point actually decided was, that a defendant could not shift a liability from his own shoulders to that of another, by showing that a contract which purported to be signed on his own account was, in reality, signed as agent for another ; and the same has been held in this country, even in cases where the party signed as agent, but not naming the principal : Peritz V. Stanton, 10 Wend. 277; Stackpole v. Arnold, 11 Mass. 27; Alfridson v. Ladd, 12 lb. 175; Bradlee v. Glass Co., 16 Pick. 347. But in Higgins i-. Senior, it was further suggested, as had also been done in Jones v. Littledale, that a distinction existed between evidence to discharge a defendant^ and evi- dence to charge an additional party ; as, in the latter case, the evidence would not contradict the written instrument, but only show that it bound another party. — R. It is no defence to an action on the individual note of an agent that it was given for the debt of his principal, and that of this fact the plaintiff had knowledge : Bass r. Randall, 1 Minn. 404 ; Haverhill Ins. Co. v. Newhall, 1 Allen, 130. A written contract, to which one has without authority affixed the name of another, but not his own, binds neither : Hegeman v. Johnson, 36 Barb. 200.— s. 460 LECT. X ] CONTKACTS BY AGENTS. 448 principal shall be discharged. But in this case, pay- ment was demanded of the defendant on the several days it became due, and no reason was given him to believe that the broker alone was trusted. The defend- ant had received a great part of the goods ; the right of the vendors was entire unless the defendant had paid the price to them, or to some person authorized by tliem to receive it. The broker had no such authority ; therefore the defendant is liable." In that case, as observed by the Court of Common Pleas, in the subse- quent case of Smyth v. Anderson ib), Lord Ellenborough must be considered as having properly decided that the defendant had no right to set up a payment accepted by the brokers contrary to their duty, and not made by him in conformity with the obligation which the con- tract imposed upon him. In the case of Smyth v. Anderson (c), just mentioned, Melville ordered of the plaintiffs certain goods, telling them they were for shipment to Bombay, pursuant to orders received. They were in fact ordered for Ander- son, and were received by him ; but Melville could not say whether, at the time of giving the order, the name of Anderson was mentioned. The invoices, however, sent afterwards, described the goods as " bought on account of Anderson, Bombay, per Melville, London, by Pender & Co., agents" (the plaintiffs). In rjH44Q-| ^payment for those goods, the plaintiffs drew bills upon Melville, which bills were dishonoured. Melville had a general account with Anderson, on which, at the time of his stopping payment, he was debtor to Anderson in a large amount. There was no evidence of any payment by him to Melville applicable to these good in particular ; but shortly after the ship- (6) 7 C. B. (62 E. C. L. B.) 39. (c) 18 L. J. (C. P.) 109 ; 7 C. B. (62 E. C. L. K.) 21, S. C. 461 449 CONTRACTS BY AGENTS. [leCT. X. merit of tliem, Melville sent Anderson an account debiting him with the amount of the bills, and the latter had since, but before they became due, remitted to Melville an amount more than sufficient to cover them. "Melville," said Ifaule, J., "having become insolvent, Anderson is sued for the price, and the ques- tion is, whether it is fair and reasonable he should be so charged. The plaintiffs got what they considered an advantage, the security of Melville, and must be taken to have requested that all might be done that was necessary and incident to that arrangement; and, there- fore, the remittance made by Anderson to provide for the bills, which was the natural and proper course to be taken by him, was substantially made with the cognizance and at the request of the plaintiffs; can they then be permitted to call upon the defendant to pay the price of the goods over again ? I think it a clear and satisfactory case of non-liability on the part of the defendant, who, in the course of a transaction to which the plaintiffs themselves were parties, has done that which, substantially, is a payment in the ordinary r*4'^01 course of ^business. The fact that the money was paid before the bills became due, does not prevent the defendant from availing himself of this de- fence. When all the parties are living in this country, and the agent has not accepted bills on account of the goods, so that the duty of putting him in funds by a previous remittance does not arise, if the principal pays the broker before the proper time has arrived, and without the privity of the seller, one can perceive the justice of not permitting the principal to set up such premature payments in answer to the seller's claim on him for the price." The qualification or exception to the rule as to the right of election of the seller is given somewhat differ- 462 LECT. X.] CONTRACTS BY AGExVTS. 450 ently by Mr. Justice Blachburn, in Armstrong v. Stokes {d), viz., "that nothing has occurred to make it unjust that the undisclosed principal should be called upon to make the payment to the vendor." But he observes that it is not very accurately defined ; and the same observation applies to the qualification as given ante, p. *446. It certainly must not be assumed that a mere payment by the principal to his agent, altliough bond fide, and free from the blame of a premature settle- ment, will absolve the principal from the duty of seeing that the agent pays the money over to the seller {e). And in Heald v. *Ken worthy, just cited, Parke, pMri-i B., was strongly of opinion (in which Pollock, C. B., and Alderson, B., concurred) that there was "no authority for saying that a payment made to the agent precludes the seller from recovering from the principal, unless it appears that he has induced the principal to believe that a settlement has been made with the agent," i. e., by the" seller, in consequence of which belief the principal pays the agent. This opinion, indeed, in Armstrong v. Stokes (/), seems to have been thought to narrow the qualification to the seller's right of elec- tion too much, for there Mr. Justice Blackburn, in a judgment in which all the authorities are most care- fully reviewed, observes that Parke, B., " makes no exception as to the case where the other side made the contract with the agent believing him to be the princi- pal, and continued in such belief till after the payment was made ;" and further on he says, " We think that, if the rigid rule thus laid down were to be applied to those who were only discovered to be principals after they had fairly paid the price to those whom the vendor (d) L. K. 7 Q. B. 598, 604 ; 41 L. J. (Q. B.) 253, 256. (e) Heald v. Kenworthy, 10 Exch. 739 ; 24 L. J. (Ex.) 76 (J) L. R. 7 Q. B. 609, 610; 41 L. J. (Q. B.) 259. 463 451 CONTRACTS BY AGENTS. [lECT. X. believed to be the principals, and to whom .'ilone the vendor gave credit, it would produce intolerable hard- ship." In this case, accordingly, where the defendants (the undisclosed principals), after the contract was r*4^91 '^^^^^s ^^^^ i^ consequence of it, bond fide and •■''without moral blame paid the agent at a time when the plaintiff (the vendor) still gave credit to the agents, and knew of no one else ; the Court held that, after that, it was too late for the vendor to recover against the undisclosed principal. It is to be observed, however, that the agents here were commission mer- chants, not brokers. If they had been the latter, the vendor would not have supposed he was contracting with principals. The opinion, however, of Parhe, B., is approved by the Court of Appeal in the more recent cases of Irvine v. Watson {g) and Davison v. Donald- son (A) ; so that it seems necessary in order to deprive the seller of his right of election that there should have been some conduct on his part which caused the settle- ment between the principal and his agent; in which case it would be obviously unjust that the seller should have recourse to the principal. An agent making and signing a contract as such would in general, in the absence of a custom to the contrary, not be liable or entitled to sue upon it {i). r*4 "*^"I ^^^' " ^" every contract, if the agent *chooses to make himself a contracting party, the other contracting 23arty may either sue the agent who has himself contracted, though on behalf of another, or he may sue the principal who has contracted through his {g) 5 Q. B. D. 414, affirming the decision of Bmoen, J., lb. 102; 49 L. J. Q. B. 531, 539. In this case the agents were brokers. {h) 9 Q. B. D. 623. (i) Fleet v. Murton, L. R. 7 Q. B. 129, 41 L. J. (Q. B.) 49 ; Fisher v. Marsh, 5 B. & S. (118 E. C. L. R.) 416; 34 L. J. (Q. B.) 177, 178; Hutchinson v. Tatham, L. R. 8 C. P. 482; 42 L. J. (C. P.) 260. 464 LECT. X.] PARTNEES. 45B agent ; ami tliis, whether the principal was known at the time or not, or whether it was or was not known that he was a principal" {k). And he is bound if he signs the contract in his own name without qualification un- less it is apparent from other portions of the document that he did not intend to sign as principal ; but in order to protect the agent who so signs, a mere description of him in the body of the document as agent for another, even if that other is named, is not suffi- cient (/). Where in such a case the agent is liable, so also he lias a right to sue {7n)} The law of agency derives much illustration from cases decided upon partnership contracts, for '* all ques- tions between partners," as expressed by Parke, B., in the case of Beckham v. Drake (ti), "are no more than illustrations of the same questions as between principal and agent." It is thought, therefore, that some leading principles of '""the law of contracts, as it re- spects this species of agency, may be useful ^ ^ here, as further illustrating what has been said before, and also as giving some insight into that important head of law to which it directly pertains. Partnership is the result of a contract whereby two or more persons agree to combine property or labour for the purpose of a common undertaking, and the acquisi- tion of a common profit (o). One party may contribute all the money, or all the stock, or all the labour neces- [k) Per Blackburn, J., in Christoffersen v. Hansen, L. R. 7 Q. B., at p. 513; 41 L. J. (Q. B.) 218. {I) Paice V. Walker, L. R. 5 Ex. 173 ; 38 L. J. (Ex.) 109 ; Hough v. Maii- zaiios, 4 Ex. Div. 104 ; 48 L. J. (Q. B., etc.) 398 ; and the notes to Thomson V. Davenport, 2 Smith's L. C. 400, 8th edit. (m) Fisher r. Marsh, supra. (n) 9 M. & W. 98. (o) Smith's Merc. Law, 9th edit., by Dowdeswell, p. 19. ^ See American note to Thomson v. Davenport, 2 Sm. L. C, 8th ed., 398. 30 465 454 CONTRACTS BY AGENTS. [lECT. X. sary for tlie purj)oses of the firm. But, in order to make people liable as i^artners to each other, it is neces- sary that there should be a community of profits (j?), although one of them may stipulate to be indemnified against loss(2'). This, however, respects their mutual claims, for, however they may stipulate with each other, all who authorize the business to be carried on (?•), and all who allow themselves to be described and held out as partners, are liable as such to those to whom they have so held themselves out (s). It was formerly thought that the taking a share in the profits by itself J. rendered such a "^'participator liable quoad third L -■ persons, but it is now settled that that is not so. " The real test of the liability of any one to third par- ties as a copartner is, whether or not the other person or persons conducting the business were his agents to carry it on. This was decided by the unanimous judg- ment of the House of Lords in Wheatcroft and Cox v. Hickman (t) overruling the authorities to the contrary, and reversing the decision in the same case of the Com- mon Pleas and of the Exchequer Chamber" [u). Still the participation of profits is in general a sufficiently accurate test and the right of participation in profits affords cogent, often conclusive, evidence of a partner- ship (v). Supposing then the parties to have become partners, (p) Hoare v. Dawes, 1 Doug. 371. {q) Bond V. Pittard, 3 M. & W. 357 ; Hickman v. Cox, 25 L J. (C. P.) 277 ; 18 C. B. (86 E. C. L. R.) 617. (r) Wheatcroft and Cox v. Hickman, 9 C. B. N. S. (99 E. C. L. E.) 47 ; 8 II. of L. C. 268 ;' 30 L. J. (C. P.) 125. (s) Dickenson v. Valpy, 10 B. & C. (21 E. C. L. E.) 140; Fox v. Clifton, 6 Bing. (19 E. C. L. E.) 793. (<) Sup)-a, note (?•). (w) Note to Waugh v. Carver, 1 Smith, L. C, p. 926, 8th edit. (v) See per Lord Oi-anworth in Cox v. Hickman, 9 C. B. N. S. (99 E. C. L. B.) 47, 92 ; 8 H. of L. C. 268, 306 ; 30 L. J. C. P. 125, 139. See also per Thesiger, L. J., in Ex parte Delhasse, In re Megevand, 7 Ch. Div. 511, 529. 466 LECT. X.] PARTNERS. 455 the result is tliat each individual partner constitutes the others his agents for the purposes of entering into all contracts for him within the scope of the partnership concern, and, consequently, that he is liable to the per- formance of all such contracts in the same manner as if entered into personally by himself {x). It follows at once, that in general no new member can be *in- troduced into the partnership without the con- ^ ^ sent of all the partners (y) ; for to do so would be for an agent to appoint an agent in the matter of the agency, which, as we have seen, cannot in general be done. It follows, also, from the same principle, that where there is no specific authority, the individual members will be liable upon the partnership contracts, or not, according as the contract is in the ordinary course of the partner- ship business or not.^ Thus, it has been held, that one (x) Fox V. Clifton, 6 Bing. (19 E. C. L. E.) 776, 792; Hawtayn v. Bourne, 7 M. &. W. 595. (y) M'Neill v. Eeid, 9 Bing. (23 E. C. L. E.) 68. ' Thus, a partner cannot bind the firm by a submission to arbitration or by a confession of judgment: Adams v. Bankart, supra; Karthaus v. Ferrer, I Pet. 222; Barlow v. Reno, 1 Blackf. 252; Grazebrook r. M'Creedie, 9 Wend. 437 ; Harper v. Fox, 7 W. & S. 142 ; " because it would bind the persons and separate estates of tlie members, and thus transcend the limits of partnership authority ;" nor can one partner give a separate creditor an order on a debtor of the firm : McKinney r. Bright, 16 Pa. St. 399 ; or otherwise apply partner- ship effects to the payment of his own debts: "Yale v, Yale, 13 Conn. 185; Rogers?. Batchelor. 12 Pet. 230; Livingston v. Ilastie, 2 Cai. 249; Modde- well V. Keever, 8 W. & S. 63 ; Dob v. Halsey, 16 Johns. 34 ; Langan v. Hewett, 13 Sm. & M. 122. As a general rule, nothing is better settled than that the general power of a partner does not extend so far as to enable him to bind the firm by a specialty : Van Deusen v. Blum, 18 Pick. 229; Clement v. Brush, 3 Johns. Cas. 180; Cummins v. Cassily, 5 B. Mons. 74 ; Posey v. Bullitt, 1 Blackf. 99 ; though if the instrument were executed in the presence of and by the direction of his copartner, it would be the deed of b3th: Ball v. Dunsterville, 4 T. E. 313; Overton v. Tozer, 7 Watts, 331; Ludlow v. Simond, 2 Cai. Cas. 1, 42, 55; Mackay v. Bloodgood, 9 Johns. 285 ; Henderson v. Barbee, 6 Blackf. 26, 28. But in Gram v. Seton, 1 Hall, 262 and Cady v. Shepherd, 11 Pick. 400, it was determined, after much consideration of all the authorities, that a partner 467 '456 CONTEACTS EY AGENTS. [lECT. X. partner has no implied authority to bind his copartner by a submission to arbitration (2;), or by a guaranty (a) (2) Adams v. Bankart, 1 C. M. & R. 681. (a) Brettel v. Williams, 4 Exch. C23. i' may bind his copartner by a contract under seal, in the name and for the use of the firm, in the course of the copartnership business, provided the other partner assents to the contract previously to its execution, or afterwards ratifies and adopts it, and this assent or adoption may be by parol, and such a conclusion is perhaps noAV sustaine^nr,-\ strictness, however, it seems that they do not '- -^ constitute the conti'act (m). A remarkable variation from the usual course of business obtains in the case of insurance brokers. By these persons subscriptions to a policy of assurance are almost always procured ; to them the underwriters look for the premium of insurance, and to them the assured pay the premiums. This is clearly explained in the following extract from the judgment of Bayley, J., in Power V. Butcher {n) : — " According to the ordinary course of trade between the assured, the broker, and the underwriter, the assured do not, in the first instance, pay the premium to the broker, nor does the latter pay it to the underwriter. But, as between the assured and the underwriter, the premiums are considered as paid. The underwriter, to whom in most instances the assured are unknown, looks to the broker for payment, and he to tlie assured. The latter pay the premiums to the broker only, and he is a middle man between the assured and the underwriter ; but he is not solely agent (i) Kemble v. Atkins, supra. (A) Sievew:ight v. Archibald, 20 L. J. (Q. B.) 529; 17 Q. B. (79 E. C. L. R.) 104, S. C ; Humfrey v. Dale, 27 L. J. (Q. B.) 390, in Exch. Ch. (I) Hinde v. Whitehouse, 7 East, 558 ; Goom v. Aflalo, 6 B. & C. (13 E. C. L. E.) 117. (m) See Benjamin on Sales, 255, 3rd edit, (n) 10 B. & C. (21 E. C. L. E.) 339. 477 467 COXTEACTS BY AGENTS. [lECT. X. — he is a principal to receive the money from the assured, and to pay it to the underwriter." As to the mode in which, in the event of a loss, the payment is made to the assured, the brokers usually settle and adjust the loss, and receive the payment. It r*4r81 ^^ ^ frequent custom to make ^settlements in account between the broker and tlie under- writer ; and it is clear that if the assured have known, or ought, in the common course of things, to have known of such a custom, they will be bound by it although money has not been actually paid by the underwriter ; such a settlement in account with the broker by the underwriter discharging the latter as between himself and the assured. This was decided in Stewart v. Aberdein (o) ; but the Court added, in de- livering its judgment, "It must not be considered, that, by this decision, the Court means to overrule any case deciding that where a principal employs an agent to receive money, and pay it over to him, the agent does not thereby acquire any authority to pay a demand of his own upon the debtor, by a set-off in account with liim (p). But the Court is of opinion that, where an insurance broker or other mercantile agent has been emjjloyed to receive money for another, in the general course of his business, and where the known general course of business is for the agent to keep a running account with the principal, and to credit him with sums r*4rQ1 "^^1^^^^ ^^^ ™^y li^ve received by *credits in account with the debtors, with whom he also keeps running accounts, and not merely with moneys (o) 4 M. & W. 211. (p) Underwood v. Nicholls, 25 L. J. (C. P.) 79; 17 C. B. (84 E. C. L. E.) 239; Guardians of Bedford Union v. Pattison, 26 L. J. (Ex.) 115; 1 H. & N. 523, in Ex. Ch. ; Ex parte Barkworth v. Harrison, 27 L. J. (Bptcy.) 5; Sweet- ing V. Pearce, 29 L. J. (C. P.) 265 ; Perry v. Hall, 29 L. J. Ch. 677 ; Catterall V. Hindle, L. E. 1 C. P. 186, 2 C. P. 368 (Ex. Ch.) 35 L. J. (C. P.) 161. 478 LECT. X.] FACTOES. 469 actually received, the rule laid down in those cases can- not properly be applied ; but it must be understood that where an account is bond fide settled according to that known usage, the original de])tor is discharged, and the agent becomes the debtor, according to the meaning and intention and with the authority of the principal." But the necessity of this knowledge in the principal in order to render such a settlement in account equivalent to a settlement according to the express authority of the principal, has been strongly illustrated in a later case, in which even a usage at Lloyd's to this effect was held insufficient to give authority to the agent where there was proof that the principal was ignorant of it {q). These few propositions, it is hoped, will enable you more readily to understand those cases of the law of principal and agent, where the latter is a broker, and where the general rules do not, therefore, seem directly applicable without reference to these peculiarities. A factor is an agent employed to sell goods or mer- chandise, consigned or delivered to him by or for his principal, for a compensation, commonly called factor- age or commission. Hence he is often called *a r^fiAf^rn commission agent or commission merchant (r). He " is an agent but an agent of a particular kind.^ He is an agent entrusted with the possession of goods for the purpose of sale" {s). Since then the usual {q) Sweeting v. Pearce, supra; 30 L. J. (C. P.) 110, S. C. in Ex. Ch. (r) See Story on Agency, s. 34. (s) Per CoUon, L. J., in Stevens v. Biller, 25 Ch. Div. 31, 37 ; 53 L. J. (Ch.) 249, 2o2. ^ Factors are to be treated as special owners of the property consigned to tliem. They may sue in their own names for the price of goods sold — may receive payments— and give receipts, unless notice to the contrary has been given by their principals : Graham v. Duckwall, 8 Bush, 12. — s. 479 4T0 CONTRACTS BY AGENTS. [lECT. X. course of his employment is to sell, if he does sell, though contrary to the instructions, whether implied or express, of his principal the true owner, the sale is binding on the latter, provided of course that the pur- chaser acts bond fide, and is ignorant that the factor is in fact unauthorized to sell {t). This is in accordance with " the general principle of law, that, where the true owner has clothed any one with apparent authority to act as his agent, he is bound to those who deal with the apparent agent on the assumption that he really is an agent with that authority, to the same extent as if the apparent authority was real " {u). This is really the same principle which we have already been discussing in the last lecture, when we were considering the liability of a principal for the unauthorized acts of a general agent within the scope of his usual employ- ment {x). P^._^-j *It has, however, long been the practice for the factor not merely to sell the goods when they come into his possession, but also to make advances to the owner on the security of them, or incur liability by accepting bills drawn by the owner on him against the cargo consigned to him, as the expression is, i, e., on the security of the cargo, the owner thus getting paid a portion of the price before the goods or merchan- dise are actually sold. Now, if the factor thus makes advances or incurs liability by his acceptances, it may often be a great advantage to him when he has the con- trol of the goods, either by having actually received them, or having the documents of title {y) to them in (0 Pickering v. Busk, 15 East, 38 ; Stevens v. Biller, 25 Ch. Div. 31 ; 53 L. J. (Ch.) 249. • (u) Per Blackburn, J., in Cole v. North Western Bank, L. R. 10 C. P. 364; 44 L. J. (C. P.) 237. (x) Ante, p. *414. (y) Such as the bill of lading, dock warrant, or other order for the delivery of goods. 480 LECT. X.] FACTOES. 471 his possession, in turn to pledge them to some third party, either to repay himself or to pnt himself in funds to meet the bills as they become due. This, however, by the Common Law he could not do ; for though the Courts held that the unauthorized sale by a factor was nevertheless binding on his principal, by reason of there being an implied authority to sell, as that was the factor's usual employment, yet they re- fused to hold that there was any implied authority to pledge, as that was no part of his usual employment as factor. Indeed so long ago as somewhere about the year 1742, in the case of Paterson v. Tash (z), it was *laid down that though a factor had power to pM-o-] sell, and therefore bind his principal, yet he could not bind or affect the property of the goods by pledging them as a security for his own debt, i. . Richards, 12 111. 146 ; Gillingham v. Gillingham, 17 Pa. St. 302 ; Bell v. Craw- ford, 8 Gratt. 110; Moore v. Hyman, 13 Ired. 272; Boxley v. Gayle, 19 Ala. 151 ; Bryan v. Ware, 20 lb. 687 ; Grant t;. Ashley, 12 Ark. 762; fen Eyck v. Wing, 1 Mich. 40 ; Brainard v. Buck, 25 Vt. 573 ; Deloach v. Turner, 6 Rich. 117 ; Pool V. Relfe, 23 Ala. 701 ; Mitchell v. Clay, 8 Tex. 443; Guy v. Tarns, 6 Gill, 82 ; Carroll v. Forsyth, 69 111. 127 ; Blakeman v. Fonda, 41 Conn. 561 ; Patton V. Hassinger, 69 Pa. St. 311 ; Johns v. Lantz, 63 lb. 324; M'Clelland t». West, 59 lb. 487 ; Hunter v. Kittredge's Estate, 41 Vt. 359 ; Brayton v. Rock- well, lb. 621 ; Knight v. House, 29 Md. 194. The acknowledgment must be to the party or his agent, and not to a third person : Carroll v. Forsyth, 69 111. 127 ; Sibert v. Wilder, 16 Kan. 176 ; M'Kinney v. Snyder, 78 Pa. St. 497 ; Trousdale v. Anderson, 9 Bush, 276 ; Cape Girardeau Co. v. Harbison, 58 Mo. 90.— s. In Reed on the Statute of Frauds, ?? lOSO-1093, and note, it is stated that- the new undertaking is required to be in writing, signed by the party to be charged thereby, in England, Ireland, Canada, Alabama, Arkansas, California, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New York, North Carolina, Ohio, Oregon, South Carolina, Texas, Vermont, Virginia, West Virginia, W^isconsin, Arizona, Dakota, Idaho, Montana, New Mexico, Utah, and Wyoming ; and need not necessarily be in writing in Colorado, Con- necticut, Delaware, Florida, Kentucky, Maryland, New Hampshire, Pennsyl- vania, Rhode Island, and Tennessee. 515 510 LIMITATION, L^ECT. X. nicety occurs, as it always does when % ques- •- -' tion of equivalents arises. Thus, where an ac- tion was brought by an executor on a covenant in an indenture of mortgage executed by the defendant to the testator in June, 1824, to secure payment of the money borrowed and interest, and the defendant relied upon the lapse of time as a defence, the plaintiff attempted to prove an acknowledgment by giving in evidence a deed executed within twenty years by the defendant. The deed recited the execution of the mortgage by the de- fendant to the testator, for securing certain money and interest, and stated that he conveyed the property mort- gaged, with other things, to trustees to sell, and to pay out of the proceeds the mortgage and other incum- brances on the property ; and the Court of Exchequer held that this was not such an acknowledgment as was required by the statute (y), not being an admission of any existing debt. On the other hand, where the action was on a covenant in a mortgage-deed, to pay the plain- tiff principal and interest on the 1st of November, 1830, and the question on a defence of the Statute of Limita- tions was upon the fact of an acknowledgment of the debt, the plaintiff proved a deed of conveyance from the defendant to Thompson of the equity of redemption in the premises mortgaged. It was dated within twenty years, and after reciting the mortgage-deed, recited also that *the principal sum still remained due by L '^^ virtue of that deed, all the interest having been paid up to the date. It also contained a covenant by Thompson with the defendant to pay the princi- pal and interest, and to indemnify the defendant in case he should be called upon to pay them. "The deed," said the Court, " furnishes amjde evidence that all interest was paid up to the date; for that fact is (y) Howcutt V. Bonser, 3 Exch. 491. 516 LECT. X.] LIMITATION. 512 expressly recited, and the date is within the twenty years" {z) A similar provision as to the operation of an acknowl- edgment is contained in 37 & 88 Vict., e. 57 (Real Property Limitation Act, 1874), s. 8, with reference to contracts within the meaning of that section. In the fourth place, if there have been a part pay- ment, either of principal or interest, the time runs from such payment : this is by sect. 5 of 3 & 4 Will. IV., c. 42 ; and also by sect. 8 of 37 & 38 Vict., c. 57, as to cases within the latter section. In the fifth place, if an action have been brought, and the defendant outlawed, or judgment obtained '^against him, and arrested or reversed by writ of error, a new action may be commenced '- -^ within a year after the reversal of the outlawry or of the judgment: this is by sect. 6 of 3 & 4 Will. IV., c. 42. But the importance of this enactment is much diminished by the abolition of outlawry in civil pro- ceedings by 42 & 43 Vict., c. 59 (Civil Procedure Acts Repeal Act, 1879), s. 3. Such is the statutable time of limitation in actions on specialties, which, you will have observed, is now either twenty years or twelve years, subject to the above ex- ceptions. Now with regard to simple contracts : — The limitation of time in cases of actions upon simple contracts, depends upon stat. 21 Jac. I., c. 16, which applies both to assumpsit and to debt 07i simple con- tract. The words of the Act are, " that all actions of (z) Forsyth v. Bristowe, 22 L. J. (Ex.) 2o5 ; 8 Ex. 347, S. C. See Morley V. Morley, 5 De G. M. & G. 610; 25 L J. (Ch.) 1 ; Roddara v. Morley, 25 L. J. (Ch.)'329; 2 K. & J. 330; reversed in 26 L. J. (Ch.) 428 ; 1 De G. & J. 1. See further Thorne v. Kerr, 25 L. J. (Ch.) 57 ; 2 Kay & J. 54 ; Jortin v. S. E. By. Co., 24 L. J. (Ch.) 343 ; 6 De G. M. & G. 270 ; Burrowes v. Gore, 6 H. L. a 907 ; Dixon v Holdroyd, 27 L. J. (Q. B.) 43 ; 7 E. & B. (90 E. C. L. R.) 903; Moodie v. Bannister, 28 L. J. (Cli.) 881 ; 4 Drew. 433. 517 513 LIMITATION. [lECT. X. account, and upon the case (otlier tlian such accounts as concern the trade of merchandise between mercliant and merchant, their factors or servants (a)), and all actions of debt grounded upon any lending or contract without specialty, and all actions of debt for arrearages of rent, shall be commenced and sued within six years next after the cause of such action or suit, and not --^ after." Assumpsit, as I have explained to you, '- -' *was originally a species of action on the case {h). It therefore falls within the limitation pre- scribed by this statute, the period limited by wdnch is, as just stated, six years. All actions upon simple contracts must therefore be commenced within six years, unless they fall within certain classes excepted from the operation of the statute of James I. In the first place that statute excepts (c) the five cases of the person entitled to the action being an infant, married, insane, imprisoned, or beyond seas at the time of tlie accruing of the right, and gives six years from the removal of the disability. It had been doubted whether this proviso applied to the case of a foreigner living abroad, because if he came to England without having been here before, he could not be said to have returned from beyond seas, as it is expressed in this statute ; and, consequently, there being no period from which the exceptional six years could, in this case, run, he was not within the j^roviso of the statute, and must therefore bring his action within six years from the time of the cause of action accruino;. But the Common Pleas held that this was (o) This exception is repealed and merchants' accounts are subjected to tlie limitation of six years, by 19 & 20 Vict., c. 97, s. 9 ; see pos<, p. *537. (6) Battely v. Faulkner, 3 B. & Aid. (5 E. C. L E.) 294, fcr Holroyd, J. (c) Sect. 7. 618 LECT. X.] LIMITATION. 514 not so, and the Chief Justice Jervis said, " I do not think the fair meaning of the word 'return' is, to refer it to the coming back of persons who have been here *before ; I think the meaning of the proviso is, r^;--. ^--i that an action shall not be commenced after six years, but if the plaintiff was abroad when the light of action accrued, then when he comes to England the statute is to begin to run against him" {d). But it has been thought expedient to take away this exception in favour of persons imprisoned or beyond seas ; and by the statute 19 & 20 Vict., c. 97, s. 10, no person is entitled to any time beyond the period fixed by the previous enactment, to commence an action or suit, by reason of such person, or one or more of such persons, being at the time when such action or suit accrued beyond seas or imprisoned (e). This section has been held to be retrospective so far as to include causes of action that accrued before 19 & 20 Vict., c. 97, was passed (/). In the second place, the statute of James I. also con- tains the exception, in the case of the defendant being outlawed [g), or the judgment reversed or arrested, which I have just cited with regard to actions upon specialties. Indeed, the one is copied from the other. How^ever, as has already been '^'said, the import- p^..^^^-, ance of this exception is much diminished by ^ -• the abolition of outlawry on civil process. In the third place, if the defendant be beyond seas when the right accrued, the plaintiff has six years after {d) Lafond v. Raddock, 22 L. J. (C. P.) 217 ; 13 C. B. (76 E. C. L. K.) 813, 5. C; Strithorst v. Graeme, 3 Wils. 145; Williams v. Jones, 13 East, 439. (e) See Cornill v. Hudson, 27 L. J. (Q. B.) 8 ; 8 E. & B. (92 E. C. L. R.) 429. (/) Cornill f. Hudson, supra; Pardo v. Bingham, L. R. 4 Ch. 735, 39 L. J. (Ch.) 170. {g) Sect. 4. 519 516 LIMITATION. [lECT. X. his return, not by the statute of James, but by stat. 4 Anne, c. 16, s. 19 (A) ; but it is a singular thing that " beyond seas " does not mean the same thing in this Act of Parliament as in the Acts of James and William IV. ; for by 8 & 4 Will. lY., c. 42, s. 7, it is directed that no part of the United Kingdom, or of Guernsey, Jersey, Alderney, Sark, or Man, shall be considered be- yond seas, within the meaning of that Act or of the Act of James I.; but, as the statute of Anne is not mentioned, it is held that the words " beyond seas " used in that Act retain their Common Law meaning, which was literally beyond the sea surrounding Great Britain. The Court of Exchequer, therefore, decided in Lane v. Bennett (i), that Ireland is not within the statute of Anne, and that the j)laintiif had still six years in which to bring his action after the return of the defendant, who had been in that part of the United Kingdom ever since the cause of action accrued. But this condition of the statute law, although well worth observing, does not now exist, the Legislature having r-^^^ _-| enacted in the statute "^19 & 20 Vict., c. 97, s. 12, that these places shall be within the statute of Anne in like manner as they are within the 3 & 4 Will. IV., c. 42, s. 7. Such are the points of time from which Statutes of Limitation begin to run ; and it must be remembered that in every case of a Statute of Limita- tions, if once the time of limitation begins to run, noth- ing that happens afterwards will stop it {k). (h) Fannin v. Anderson, 7 Q. B. (53 E. C. L. E.) 811 ; Townes v. Mead, 24 L. J. (C. P.) 89; 16 C. B. (81 E. C. L. R.) 123. (i) 1 M. & W. 70. See Battersby t^. Kirk, 2 Bing. N. C. (29 E. C. L. E.) 584. (k) Smith V. Hill, 1 Wils. 134 ; Ehodes v. Smethurst, 6 M. & W. 351 ; Cur- lewis V. Earl of Mornington, 26 L. J. (Q. B.) 181 ; 7 E. & B. (90 E. C. L. E.) 283 ; Sturgis v. Darell, 4 H. & N. 622 ; 6 Ibt 120 (Exch. Ch.) ; 28 L. J. (Ex.) 366; 29 lb. 472. 520 LECT. X.] LIMITATION. 517 There was, moreover, a very important distinction between co-plaintiffs and co defendants. It is clear that a sole plaintiff might, if he chose, bring his action while abroad or wait till his return, when the statute be- gan to run {I) ; and co-plaintiffs, if some were abroad and others in England, must have sued within six years from the cause of action accruing (m) : but where one of two co-contractors who was a defendant, was be- yond seas, the statute did not run till his return in the case of either of them; for it was decided {n), that al- though the statute commences to run when the right of action accrues, where there are several joint claimants, and one of them is within seas, yet *where there ^. ^ ^^ 1^5181 were joint debtors, and one of them was abroad '- -^ when the cause of action arose, tlie statute did not begin to run until his return in the case of any of them. This distinction between the position of co-plaintiffs and co-defendants was founded upon the wording of the 19th section of the statute of Anne, c. 16, compared with the 21 Jac. I., c. 16 ; and the reason of it seems to be, that one plaintiff could act for others and use their names in an action, and therefore the protection of the statute was not wanted. With respect to defendants, however, the reason did not apply ; the plaintiff might not be able to bring the absent defendant into Court by any act of his, and therefore, if he were compelled to sue those who were within seas without joining those who were abroad, he might possibly recover against insolvent persons, and lose his remedy against the solvent ones who were absent. On the other hand, if he sued out a writ against all, and either continued it without declar- er) Le Veux v. Berkeley, 5 Q. B. (48 E. C. L. E.) 836. (m) 2 Wms. Saund. 121. See Perry v. Jackson, 4 T. K. 516 ; Strithorst p. Graeme, 3 Wils. 145. (n) Fannin v. Anderson, supra. 621 518 LIMITATION. [lECT. X. ing, or 2')roceeded to outlawry against the absent parties, and declared against those within seas, he was placed in precisely the same situation as if the statute of Anne had never passed, and was obliged to incur fruitless ex- pense, the avoiding of which seems to have been the object of the statute of Anne. But this evil is remedied by the statute so often cited, and now the Statutes of Limitations before mentioned (including 3 &■ 4 Will. IV., c. 42, s. 3) run as to the joint debtor *who '- ' -■ is not beyond seas, from the time when the ac- tion or suit accrued ; but there is no bar from com- mencing an action, &c., against a joint debtor who was beyond seas, after his return, by reason of judgment having been recovered against another who was not be- yond seas (o). It seems also that if, after the Statute of Limitations has begun to run, the right to sue and the liability to be sued, meet in the same person by any act of the law, as where a debtor to the deceased becomes his adminis- trator, the running of the statutes is suspended while they so continue (p). In the fourth place, if the defendant have given an acknowledgment by writing signed, the protection of the statute is removed. After the passing of the statute of James, and until Lord Tenterden's Act, which I shall immediately mention, an acknowledgment by mere words would have been sufficient ; but by sect. 1 of that Act, w^iich is the 9 Geo. IV., c. 14, the acknowledgment must be in wi^itiiig, " signed by the party chargeable." It enacts " that no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of (o) 19 & 20 Vict., c. 97, s. 11 ; King v. Hoare, 13 M. & W. 494. (p) Seagram v. Knight, 36 L. J. (Ch.) 918 ; L. K. 2 Ch. 628; Mills r. Borth- wick, 35 L. J. (Ch.) 31. 522 LECT. X.] LIMITATION. 520 *the operation of the said enactments {q), or p.-^^^-, either of them, or to deprive any party of the L - J benefit thereof, unless such acknowledgment or promise ehall be made or contained by or in some writing to be signed by the party chargeable tliereby ; and that where there shall be two or more joint contractors, or execu- tors, or administrators of any contractor, no such joint contractor, executor, or administrator shall lose the benefit of the said enactments {q), or either of them, so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them; provided always, that nothing herein contained shall alter, or take away, or lessen the effect of any payment of any principal or in- terest made by any person whatsoever ; provided also, that in actions to be commenced ao;ainst two or more joint contractors, or executors, or administrators, if it shall appear at the trial or otherwise that the plaintift* though barred by either of the said recited Acts or this Act, as to one or more of such joint contractors, or ex- ecutors, or administrators, shall nevertheless be entitled to recover against any other or others of the defendants by virtue of a new acknowledgment, or promise, or otherwise, judgment may be given and costs allowed for the plaintiff, as to such ^defendant or defend- ^. ^^^ • P'5211 ants against whom he shall recover, and for the •- -^ other defendant or defendants against the plaintiff." No part of Lord Tenterden's Act has given rise to more litigation than this saving clause ; but it is now settled that the acknowledgment, in order to bar the Statute of Limitations, must, except in the case after- wards mentioned of a conditional promise which has become absolute by the performance of the condition, (7) I. e. 21 Jac. 1, c. 16, the English Statute of Limitations, and 10 Car. I, sess. 2, c. 6, a similar enactment for Ireland. 523 521 LIMITATION. [lECT. X. contain an unconditional promise to pay. Such prom- ise need not indeed be express, but the law will imply it from an acknowledgment of the debt, pro- vided it be an acknowledgment or admission so dis- tinct that a promise to pay may be reasonably inferred from it (r). v^^Koo-\ Many of the older cases display a different doctrine (s). *These, however, are expressly overruled by the leading case of Tanner v. Smart {t), where, in an elaborate judgment. Lord Tenterden, C. J., says, " The only principle upon which it (an acknowledg- ment) can be held to be an answer to the statute is this, that an acknowledgment is evidence of a new promise, and as such constitutes a new cause of action, and sup- ports and establishes the promise which the declaration states. Upon this principle, whenever the acknowledg- ment supports any of the promises in the declaration, the plaintiff succeeds ; when it does not support them, though it may shoiv clearly that the debt has never been paid, but is still a subsisting debt, the plaintiff fails." This decision was based chiefly on that of Heyling v. Hastings (u), one of the oldest cases on the Statute of Limitations, and has been recognized (r) Collis V. Stack, 26 L. J. (Ex.) 138; 1 H. & N. 605 ; Holmes v. Mack- ivll, 3 C. B. (N. S.) (91 E. C. L. R.) 789 ; Godwin v. Culley, 4 H. & N. 373 ; Holmes ?•. Smith, 8 Ir. (Com. Law Kep.) 424 ; Cornforth v. Smithard, 29 L. J. (Ex.) 228 ; Bourdin v. Greenwood, L. R. 13 Eq. 281 ; 41 L. J. (Ch.) 73. "It has been established by Tanner v. Smart, and similar cases, that a mere ac- knowledgment will be insuflicient, if the debtor states either that he will not paj', or that he will pay only upon a condition which remains unfulfilled, or at a time which has not elapsed. Beyond establishing this principle, I do not think that much assistance is to be obtained from a perusal of the cases, for one care- lessly written letter is notof much use in construing another." Ver Bramwell. L. J., in Meyerhof v. Froehlich, 4 C. P. D. (C. A.) 63, 65 ; 48 L. J. (Q. B. etc.,) 43, 45. (s) Yea V. Fouraker, 2 Burr. 1099 ; Thornton v. Illingworth, 2 B. & 0. (9 E. C. L. R.) 824. (See Fraud DEED, contracts by, 5. what, lb. must be written on paper or parchment, lb. though written, need not be signed, lb. must be sealed and delivered, 6. this a main distinction between a deed and any other contract, lb. delivery of, lb., 7. to whom to be delivered, 7, 8. escrow, 8. conditional delivery, 8-12. peculiarities of, 13, 20, 29, 31. poll, 12. indented or indenture, lb. does not require consideration, 13. reason of this rule, 15, 16, 168. void without consideration, if made under Statute of Uses, 17. void without consideration, if coming under 13 Eliz., c. 5, 165. or if in restraint of trade, 17, 180, 225. illegality of consideration of, may be shown, 17, 18. 570 INDEX. DEED — continued. covenants in, some legal, some not legal, good, 20. estoppel by, 20. of no effect, except upon matters, &c., founded upon the deed, 23. of no effect if facts appear by the deed, lb. merger by, 29. contract merged must be ad idem, 29, 30. cannot be got rid of by parol, 30. covenant in, when assignable, even before Judicature Act, 31. former advantages of, 32-34. former priority of creditors by, now done away, 34. when necessary, lb. to pass incorporeal property, 35. a freehold estate upon condition, 36. to render gift of chattel irrevocable, lb. to feoffments, partitions, exchanges, leases, as- signments, and surrenders, 37. to authorize agent to execute a deed, 37, 412. to contract by corporation, 370. to appointment of agent by corporation, 412. to assign a patent, 37. to transfer a registered ship, 38. remedies on contracts by, 38, 505. period of limitation on. See Limitation, Statutes of, (a), difference between contracts by, and simple contracts, 13-17, 20, 29-32, 38, 40, 41. DEFAULT, of another, promise to answer for, must be in writing, 76, 77, 105. See Guaranty. DEL CEEDERE AGEl:iT, what, 113. terms of undertaking of, need not be in writing, lb. DELIVERY, requisite to a deed. 5, 6. of deed by words without touch, 6. or by touch, without words, lb., 7. to whom requisite, 7. as an escrow, 8. to a third person, lb. express words not necessary to constitute escrow, 10. INDEX. 571 DELTVERY—contijiued. conditional, must be to third person, lb., 11. DEMISE OF LAND, for more than three years, must be in writing, 37. for not more than three years, need not, 132. but agreement for such demise must be in writing, under 4th Sec, of Statute of Frauds, lb. DESCRIPTION, of parties, without names, sufficient to satisfy Statute of Frauds, 84, 85, 149. DEVISEE, bound by covenant which binds devisor, 33. DIRECTORS, provisional, of proposed company, liability of, 423. DISTANCE, how to be measured, in covenant in limited restraint of trade, 225. DOCUMENTS, several may be read together, under Sec. 4 of Statute of Frauds, 85, 89. under Sec. 17, 146. See Statute of Frauds. of title, under Factors' Acts, 482. DORMANT PARTNER, 461. DOUBTFUL CLAIM, forbearance of, a consideration, 186. DRUNKEN PERSON, contracts of, 363-365. See Parties to Contracts, rv. DURESS, vitiates deed, 18. promises made under, 236. DUTIES, PUBLIC, contracts inconsistent with, 235. See Public Policy. EARNEST, giving of, 125, 142, 143. See Statute of Frauds, Sec 17. EJUSDEM GENERIS, rule for construing words, in statutes, 279. contracts, 558-561. 572 INDEX. ELECTION, of third party to charge principal or agent, 440-452. wheu once made, binding, 442. what amounts to, 440, 443, 444. right of, how qualified, 444, 446-452. ELECTORS, contracts for treating, void, 235. EMBLEMENTS, 125. ENEMIES, ALIEN, contracts with, 239, 341, 342, 367. See Parties to Con- tracts, V. EQUITY, rules of, to prevail in cases of conflict between rules of Com- mon Law and Equity, 99, 538, n. (r). rule of, as to part performance taking case out of Statute of Frauds, 99. does not extend to contract of service, 100. ESCROW, distinction between a deed and, 8. definition of, lb. conditional delivery of, to third person, 8, 10, 11. to constitute, delivery as such in express words not essential, 10, 12. ESTATE, separate, of married woman. See Property. ESTOPPEL, meaning of, 20. created by deed, lb. example of, in the case of a receipt, 21. principle of, lb. allegation to operate as, must be definite, 21, 22. has no eflfect on matters not depending on the contract con- tained in the deed, 22. nor if the facts appear by the deed, 23. by recital in deed, 21-25. binds both parties to facts agreed upon by both, 24. apparent date of deed does not create, 25. by matter of record, 26. in pais, 26-29. as by conduct, lb. INDEX. 573 EVIDENCE. /See Parol. of contracts of record, 4. of written contracts, 41-74. EXCHANGES OF LAND, must now be by deed, 37. EXECUTED AND EXECUTORY CONSIDERATIONS, 194. EXECUTOR or ADMINISTRATOR, contract to hind, must be in writing, when, 76, 102-105. consideration requisite for, 77, 103-105. FACTOR, 464, 469-483. See Parties to Contracts, ix. (d). FACTORS' ACTS, 1823 to 1877,... 472-483. FELON, 368, 369. See Parties to Contracts, vi. FEOFFMENTS, must now be by deed, 37. FIXTURES, contracts for, 127, 128. sale of, not within 17th Sec. of the Statute of Frauds, 142. FORBEARANCE, a consideration, 183. of doubtful or unfounded claim, when, 186-189. FOREIGNER. See Alien. FOREIGN LAW, contract made abroad expounded by, 365. but if sued upon here, remedy according to English law, 333, n. (2), 366. FRAUD, contracts tainted with, vitiated, 18, 209, 244. may be either active or passive, 244. distinction between legal and moral, how far unsound, 246. reckless statement of untruth may be, 247. contract induced by, voidable, not void, 248. till rescinded, valid, Ibf and fraudulent purchaser can give title, 248, 249. of third party causing loss to one of two innocent persons, rule, 249. discovery of, when time of limitation runs from, 537-539. FRAUDS, STATUTE OF. See Statute of Frauds. FRAUDULENT CONTRACT, of partner, 464. 574 INDEX. FRAUDULENT REPRESENTATIONS, as to character, &c., cannot be sued upon unless in writing, 117-120. See also Misrepresentation, Fraudulent. FRUCTUS INDUSTRIALES, 125. FRUIT, sale of growing, an interest in land, 126. GAMBLING, 260-272. GAME, contract giving right to kill and take away, an interest in land, 131. GAMES, wagers on, 260-267, 269, 272. bets not on, within the statute, 267-269. GAMING, contracts by way of, not unlawful at common law, 267. void by statute, 260, 266, 267. consideration, securities for a, 295-298. GIFT, of chattel, to be irrevocable, must be by deed, 36. if by deed, vests upon execution, lb. GOODS, contract for sale of, how affected by Statute of Frauds, 141-150. See Statute of Frauds, Sec. 17. GRASS GROWING, contract for sale of, 123-127. GROWING CROP, contract for sale of, 123-127, 142. GUARANTY, 76, 77, 105-120. must be in writing, 76, 106. person whose debt guaranteed, how far must continue him- self liable, 106-112. new consideration of, does not dispense with writing, 112. for default or miscarriage in breach of any duty, must be in writing, 113. undertaking to sell del credere not a, within Statute of Frauds, lb. the promise to, must be made to the creditor, 114., promise made to debtor to pay his debt, not a, within the meaning of the statute, lb. consideration of, need not now be in writing, 79, 80, 115. INDEX. 575 HEIR, formerly only bound by ancestor's deed, if named therein, 32. HORSE RACES, 261-265, 267, 269-272. HUSBAND, liability of, for debts of wife, contracted before the marriage, now limited, 331-335. at Common Law might sue on contract of wife, 828, 330, 343-346. but must during the marriage join her as co-plaintiff, 330. except in action on bill given to her dum sola, 330, 345, 346. need not now be joined with her as plaintiff or defendant, in an action in respect of her contracts, 350, 353. bound by contract of wife on ground of agency, 484. lunatic, liable for necessaries supplied to wife, 362, 492, 493. See also Parties to Contracts, ii., ix. (e). ILLEGAL ACTS, indemnification against, 236. ILLEGAL CHARGES, on benefices, 290. ILLEGAL CONSIDERATIONS, bills and notes given for, 295-298. ILLEGAL CONTRACTS, 17-20. 207-306. at Common Law, 18, 209-249. by statute, 18, 19, 250-293. See Statute, Contracts Illegal by. promise to do legal and illegal things void as to latter, 20, 208. consideration, if any part of, illegal, whole contract fails, 20, 209. immoral, 18, 209-213. See Immoral Contracts. opposed to public policy, 209, 213-243. See Public Polict. tainted with fraud, 18, 209, 244-249. Yoidable only, not void, 248. money paid or goods delivered on, cannot be recovered back, 298-300. unless the contract be made illegal to pro- tect the party paying, 300. and except where there has been no further performance than the payment, &c., 305, 306. ILLEGAL COVENANTS, 20. ILLEGALITY, is a breach of common or statute law, 18, 209. 576 INDEX. ILLEGALITY— co7ifmMec?. in the case of a statute whether act forbidden directly or by implication, 18, 250. as where a penalty is imposed,. lb. of consideration vitiates deed, 18, 207, 208. or simple contract, 207, 208. even if illegality only partial, 20, 209. incidental merely to contract does not avoid it, 256-259. possible, how far contract avoided by, 258. test of, where demaud connected with illegal transaction ia sought to be enforced, 305, 306. ILLEGAL WEIGHTS AND MEASURES, 291, 292. ILLICIT COHABITATION, if future, illegal consideration, 211. if past, no consideration, 17, 211. IMMORAL consideration vitiates deed, 18, 207, 208. or simple contract, 207, 208. IMMORAL CONTRACTS, 18, 209-213. no action lies on, 208, 209. libellous publication, 209. publisher of, cannot sue for pirating, 210. letting rooms for blasphemous lectures, 211. illicit cohabitation, if future, illegal, lb. if past, no consideration, 17, 211. to supply prostitute with lodgings, &c., 211, 212. INADEQUACY OF CONSIDERATION, 176-180, 226. INCORPOREAL PROPERTY, deed necessary to transfer, 35. INCIDENTS, of contracts of record, 4. illegal, do not necessarily vitiate contract, 256-259, INDEMNIFICATION, against illegal acts, 236. liability as bail, 305. INDENTURE, 12. INDICTMENT, compromise of, 18, 232-234. INFANT, 151, 308-328, 509, 514. See Parties to Contracts I. ; LiMiTAT^ioN, Statutes o**. INDEX. 0/ 4 INFANT— continued. cou tracts of, can no longer be ratified even by writing so aa to charge him, 152, 325, 326. may contract for necessaries, 309. INFANTS RELIEF ACT, 1874,.. .152, 325, 326. INSANE PERSON, 356-363, 432, 433, 493, 509, 514. See Par- ties TO Contracts, hi. ; Limitation, Statutes of. INSURANCE, contracts of, must be Avritten or printed, 152. wager policies, 272-276. marine, invalid, unless assured has interest, 274. life, what a sufficient interest to render valid, 275. on lives of children under 10, 276, n. (s). _, INSURANCE BROKER, 467-469. ^ INTEREST, what is an, concerning lands, 122-134. shares in joint-stock companies seised of land, not, 142, 387. authority coupled with, irrevocable, 271. insurance without, invalid, 274, 275. payment of. See Limitation, Statutes op. INTENTION, to break the law, when necessary to be shown, in order to avoid contract, 258. INTOXICATED PERSON, 363-365. See Parties to Con- TRACTS, IV. JOINT DEBTOR, 517-519. See Limitation, Statutes of. JOINT-STOCK COMPANIES, 292, 293, 381-404. See Par- ties TO Contracts, viii. JURISDICTION, common law, 1. criminal, lb. real property, lb. fiscal, lb. JUSTICE, contract obstructing course of, 231-236, 305, n. (<). LAND, contract for sale of, must be in writing, 76. 77, 122-134. See Statute of Frauds. 37 578 INDEX. LANDLORD AND TENANT, parol evidence admissible to annex customary incidents to contracts between, 56-59. LATENT AMBIGUITY, what, 50, 53. may be explained by verbal evidence, 49, 50, 52-55. LEASE, of land for more than three years from the making, must be by deed, 37, 75, 132. agreement for, 131, 132. LEGAL COVENANTS, 20. LETTER, offer and acceptance by, 163-165. posting, contract complete on, when, 164. containing revocation of offer, lb. LEX FORI. See Foreign Law. LEX LOCI CONTRA CTUS. See Foreign Law. LIBELLOUS WORK, price of, cannot be recovered, 209. nor can publisher sue for pirating, 210. nor will pirating be restrained, lb. nor contract to publish, be enforced, lb. LIMITATION, STATUTES OF, 38, n. (.r), 504-539. policy of, 504, 505. scire facias on a recognizance must be sued within twenty years, 505, 506. (a) actions on specialties, 505-513. action upon covenant in mortgage deed to pay principal and interest must be brought withiu twelve years after right to receive same accrued, 38, n. {x), 508, 509. similar limitation in case of collateral bond to secure mort- gage debt, lb. and on covenant to pay rent, lb. action upon any other specialty must be brought within twenty years after the cause of action accrued, 38, 505, 506, 508. when time of limitation begins to run, 506-508. what is the accruing of the cause of action, 507, 508. in case of infant, married woman, or insane person enti- tled, time begins to run from the removal of their dis- ability, 509. INDEX. 579 LIMITATION, STATUTES OF— continued. (a) actions on specialties — continueA. if defendant be beyond seas when cause of action accrues, time begins to run from his return, 509, 510. if acknowledgment be given in writing signed by the party liable, or his agent, time runs from the date of that acknowledgment, 510-512. what is such acknowledgment, 510-512. if part payment of principal or interest, time runs from such payment, 512. if judgment arrested or reversed by writ of error, new action may be brought within a year after reversal of the judg- ment, 512, 513. (6) actions on simple contracts, generally, 513-539. must be commenced within six years after cause of action accrued, 513, 514, infant, married woman, or insane person must sue within six years from the removal of their disability, 514. if judgment arrested or reversed, a new action may be brought within a year after reversal of the judgment, 515. if defendant be beyond seas, plaintiff has six years after his return to sue, 516. meaning of " beyond seas" different in 4 Anne, c. 16, s. 19 and in 3 & 4 Will. 4, c. 42, s. 7, lb. but now those words have the same meaning in both statutes by 19 & 20 Vict., c. 97, s. 12,.. .517. joint debtor not beyond seas, may be sued alone, and must be sued within the period of limitation, 517-519, but joint debtor beyond seas may be sued within the period of limitation from his return, although judgment has been obtained against co-debtor, 519. if defendant have given an acknowledgment by writing signed, statute suspended, lb. provisions of Lord Tenterden's Act as to such acknowledg- ment, 519. acknowledgment must contain or imply an unconditional promise to pay, 521. except where conditional promise becomes absolute by performance of condition, 521, 523, 524, 527, 528. constitutes new cause of action, 522. 580 INDEX. LIMITATION, STATUTES OF— contmried. (6) actions on simple contracts geuerally — continued. tliere must be a promise, or uckuowledgmeut implying one, to bar statute, lb. conditional promises, 523-528. conditional ability, 525. semble letter without prejudice cannot be an acknowledgment to bar, 527. when condition performed action may be brought, 527, 528. precise sum need not be named, 529. sufficiency of acknowledgmeut, question forjudge, lb. promise must be before action, lb. acknowledgmeut by agent, 429, 430. payment of principal or interest takes case out of the statute, 530. part payment of principal sufficient, 531. or part payment of interest, 532. payment of interest under compulsion of law insufficient, 532. but part payment by one joint debtor docs not affect liability of other, 530. part payment may be made by bill, 531, 532. statement of a mutual settlement of account equivalent to payment, 532, 533. but part payment must be on account of a greater sum, 535. part payment may be proved by verbal admission, 536, 537. merchants' accounts now within the statute, 513, n. (a), 537. where accruer of cause of action fraudulently concealed, when time of limitation begins to run, 537-539. LOAN, when joint-stock companies liable for, 894. to wife for necessaries, how far recoverable from husband, 495, n. (d). LOCAL TERMS, 64. LODGINGS, contracts for, 128. LONDON, married women may sue by custom of, 342. LORD'S DAY, contracts of worldly business on, 277-282. LUNATIC, 356-363, 432, 433, 493, 509, 514. See Parties to Contracts, hi. ; Limitation, Statutes of. IXDEX. 581 LUNAR MONTH. See Month. MAINTENANCE and CHAMPERTY, 236-238. MANDAMUS, WRIT OF, 501. MARRIAGE, agreements in consideration of, within Statute of Frauds, 76^ 77, 120-122. ^ do not include ordinary prom- ise of marriage, 120. contracts in restraint of, 228. tending to separation, 228, 229. brocage contracts, 229, 230. promise of, within 2nd Sec. of Infants Relief Act, 325 n. (A). effect of date of, on wife's ante-nuptial contracts, 338, 339. on her post-nuptial contracts, 351. MARRIED WOMEN, 328-355, 483-499, 509, 51 4. See Parties TO Contracts, ii., ix. (e) ; Limitation, Statutes op. MAXIMS CITED, ex nudo pacto non oritur actio, 14, 15, 103, 167. xmiimqiwdque Ugamen dissolvitur eodem ligamine quo et liga- tur, 31. oinnis ratihabilio retrotrahitur et maiidato cequiparatur, 202. ex turpi caitsd non oritur actio, 208. t/i pari delicto potior est conditio defendentis, 303. persona conjuncta oequiparatur inter esse proprio, 317. a man should not be heard to stultify himself, 357. delegatus non potest delegare, 407. vicarius non habet vicarium, lb. qui facit per alium facit per se, 430. qui sentit commodum sentire debet et onus, 461. cessante ratione cessat lex, 493. expressum facit cessare taciturn, 523. verba relata inesse videantur, 554. ex antecedentibus et consequentibus optima interpretatio, 563. MEANING, words to be understood in ordinary, 70, 561-563. MEMBERS OF JOINT-STOCK COxMPANIES, liability of, 388, 390, 402, 403. MEMORANDUM, what sufBcient to satisfy Statute of Frauds, 141-151. though it repudiates the contract, 150. 582 INDEX. MERCHANTS' ACCOUNTS, formerly excepted from Statute of Limitations, 513; n. (a) 537. this exception abrogated, lb. MERGER, where same engagement made first by simple contract and afterwards by deed between the same parties, 29. the two contracts must be identical, 30. MINUTE BOOK, of company, signature of chairman to, sufficient to satisfy Statute of Frauds, 97. MISCARRIAGE, of another, promise to answer for, 76, 105, 106, 112, 113. See Guaranty. MISDEMEANOUR, when indictments for, may be compromised, 233, 234. MISREPRESENTATION, FRAUDULENT, when cannot be sued upon unless in writing, 118-120. what, sufficient to avoid contract, 244-248. MONEY, when recoverable, where paid on an illegal contract, 300-306. where paid for wager at request of loser, 269, 271. See also Stakeholder. borrowing, when joint-stock company liable for, 394. MONTH, calendar or lunar, when, 65, 66, 541, MORAL CONSIDERATION, 202. MUTUALITY, necessary to make contract, 154. NAMES OF PARTIES, need not appear in writing, to satisfy Statute of Frauds if there is a sufficient description, 84, 85, 149. NECESSARIES, infant may contract for, 309. what are, for infant, 309-319. wife may contract for, 486, 492, 493. See Parties to Contracts, ix, (e). ■what are, for wife, while living with husband, 487-490. apart from him, 495, 499. NEGLIGENCE, gross, unremunerated agent only liable for, 190. meaning of, 191, n. (n). INDEX. 583 NOMINAL PARTNER, 461, 462. NON COMPOS, contract of one, 356. See Parties to Contracts, in. NOTICE, of determination of agency, 432, 433. of wife, 491. of retirement of partner, 462. of dissolution of partnership, 462, 463. NUDUM PACTUM, 14-16, 103, 104, 167, 169, 175, 206. OBJECTS OF ACTS OF PARLIAMENT, contracts contravening, 239-241. OBJECTS OF JOINT-STOCK COMPANIES, to be adhered to, 397. contracts at variance with, void, lb. OBLIGATION, by record may be discharged by release, 4, 5. by deed cannot be got rid of by matter of inferior degree, 30, 31. OBSTRUCTING COURSE OF JUSTICE, contracts, 18, 231-236. compromise of indictment for perjury, 18, 231. of election petition, 18, 235. indemnification against liability as bail, 236, n. (n), 305, n. (0- OFFER, acceptance of, 148-165. may be rescinded till acceptance, 160. by letter, 163-165. OUTLAW, 368, 512, 513, 515. See Parties to Contracts, vl OUTLAWRY, in civil proceedings abolished, 368, n. (cZ), 513, 516. PAIS, estoppel in, meaning of, 26, 29. examples of, 27, 28. PAPER or PARCHMENT, deed must be written on, 5. PAROL, contracts by, synonymous with simple contracts, 15. deed cannot be got rid of by, 30, 31. written contracts cannot be varied by, 41-46. but may be varied by parol subsequently, 46. except where law requires a writing, 47. 584 INDEX. PAROL — continued. pateut ambiguity cannot be explained by, 49. but latent ambiguity may, 49, 52-54. evidence admissible to annex customary incidents to certain written contracts, 55, 59. technical terms explained by, 64-68. cannot be given to explain meaning of plain words, e. g., " more or less " in a mercantile contract, 70. demise of land, if for not more than three years, good under Statute of Frauds, 75, 131, 132. agreement for such demise, not, 132. acceptance of proposal in writing, 96. PART PERFORMANCE, rule of Equity as to, with reference to Statute of Frauds, 99. only applicable to cases relating to land, 101. not applicable to a contract of service, 100. PARTIES, description of, when sufficient to satisfy Statute of Frauds, though unnamed, 84, 85, 149. PARTIES TO CONTRACTS, 307-500. personal inability to contract, 308. I. infant, 308-328. may contract for necessaries, 309, what are necessaries, 309-319. expenses of marriage settlement, 319. cannot trade, lb. or bind himself by bill, 320. or state an account, 321. or bind himself by any contract not beneficial t« him, 322. or make himself liable to penalty, lb. reason why, cannot trade, 323, cannot be made bankrupt, 323, 324. cannot be sued on contract not for necessaries, 324. some contracts by, though not void but voidable, yet cannot now be confirmed, so as to charge the infant when of full age, 152, 325, 326. ratification, on full age, of contract made during in- fancy, no longer binding even if in writing, lb. alteration of law as to, by Infants Relief Act, 1874, lb. INDEX. 585 PARTIES TO CONTRACTS— conimwetf. I. infant — continued. persons who contract with infants bound, 327. at all events by voidable contracts, lb. n. married women, 328-354. contracts by, before marriage, at Common Law, 328- 331, 338^ husband must be joined with wife in actions upon, 380. except in the case of bill or note given to her dum sola, lb. before marriage, under Married Women's Prop- erty Act, 1870,. ..331, 332, 339. under Married Women's Property Act, 1874,. ..332, 333, 339. under Married Women's Property Act, 1882,. ..334, 337, 339. during marriage, at Common Law, 339-346 in general not landing, 339-341. but husband may avail himself of them, 343-346. exceptions, w'here husband civilly dead, 341. or alien enemy, lb. by custom of Jjondon, 342. in cases of judicial separation, lb. choses in action of, at Common Law, 330, 343- 346. reduction into possession of, by husband, 330, 346-348. choses in action of, under Married Women's Property Act, 1882,... 337, 338. contracts by, during marriage, under Married Women's Property Act, 1870,... 348-350. bind their separate estate, 351-353. may sue alone under Married Women's Property Act, 1870, when, 332, 349, 353. may be sued alone under same Act, when, 332, 352, 353. contracts by, during marriage, under Married Women's Property Act, 1882,... 350, 351. bind wife's separate property, 350. may sue or be sued alone on such contracts, 353. 58G INDEX. PARTIES TO CONTRACTS— confirmed III. iusaue persons, 356-363. fair contracts with lunatic executed, valid, 360-362. if executory not, sed qucere, 363. liability of, for necessaries furnished to wife, 362, 492, 493. IV. intoxicated persons, contracts by, 363-365. voidable, not absolutely void, 365. V. aliens, 365-368. friends, 365, 366. if contract by, made in England, expounded by law of England, 365. if made abi'oad, by foreign law, lb. but if sued on here, remedy according to Eng- lish law, 333, n. (z), 366. may acquire real and personal property here, 367, 368. enemies, 239, 341, 342, 367. contracts with, void, lb. VI. outlaws and felons, 368, 369. at Common Law, liable on their contracts, but cannot take advantage of them, 368. modification of disabilities of felons, by recent statute, 368, 369. VII. corporation, aggregate, 369-381. general rule, contracts by deed under common seal only, 307, 370. unless where convenience, almost amounting to neces- sity, requires an exception, 371-373. or unless created for mercantile purposes, when it may make mercantile contracts in usual manner, 373-377. for public purposes under Public Health Act, 379. not liable for contracts over £50, unless under common seal, lb. VIII. public or joint-stock companies, 381-404. statutes regulating, 381-383. nature of, as unaffected by statute, 383. joint-stock, or capital of, divided into shares, 384. common law of oi*dinary partnership prevails unless specially excluded, 384-386. transfer of shares in, 385-387. INDEX. 587 PARTIES TO CONTRACTS— cojih'/it/ed VIII. public or joiut-stock companies — continued. shares in, not within Statute of Frauds, 142, 387. rights and liabilities of members of, how arising, 388— 395. as to bills of exchange, 390-394. as to borowiug money, 394. as to dealing on credit, lb. in all, objects for which compauy established must be adhered to, 397. contracts not in accordance with such objects, ultra vires and void, lb. under Companies Acts, 1862, &c., 396-404. manner of coutractiug of, 399-400. attorney authorized under seal of, may execute deed under his own, 400. bills and notes of, 400-402. have no additional powers as to bills and notes under those Acts, 401, 402. remedies against, 402, 403. liabilities of shareholders in, on winding up, lb. rights of shareholders in, against company, 403, 404. transfer of shares in, 404. liability of provisional officers of, 423. IX. (a.) agents, 405-500. remarks on contracts by, 405. who may appoint, 405, 406. agent cannot appoint an agent, 406, 407. this rule how far qualified, 407. who may be, generally, 408, 409. under Statute of Frauds, 409-412. how appointed, 412, 413. how far contracts of, bind principal, 413-433. particular and general, distinction between, where agent exceeds his authority, 413, 414. examples illustrating distinction, 414-417. reason of distinction between, 417, 418. authority of general agent measured by extent of usual employment, 418-424. principal bound by contract of agent made accord- ing to usage, 424-429. 588 INDEX. PARTIES TO CONTRACTS— conftnifed IX. (a.) agents — continued. but not if usage at variance with relation between principal ignorant of usage and agent, 427. nor if usage arises after the transaction, 428. powers of, implied from capacity in which agent acts, 429. factors, brokers, partners, wives, servants, &c., 429. ratification, 430, 431. notice of limited or discontinued authority, 431-433. right of principal to take advantage of contracts by, 434-440. where known, 434. where agent contracts as principal, 435- 440. right of third party to elect between principal and agent, 440-446. such election once made, binding, 442. what amounts to such election, 440, 443, 444. but right may be qualified where altered state ol accounts or other occurrence makes it unjust that election should be made, 446-452. liabilities of, 452, 453. distinction as to, in case of remunerated and unremunerated agents, 190. (6.) partners, 453-464. questions between, illustrate law of agency, 453. mutual rights and liabilities, 454, 455. who are, as to third persons, 455. liabilities of, towards third persons, 454-459. question to whom credit given when, 457-460. cause of action must arise during time of part- nership, 460. dormant, 461. nominal, 461, 462. notice of retirement of partner, 462. dissolution, 462, 463. liability upon bills, 463, 464. fraudulent contracts, copartner not liable for, when, 464. INDEX. 589 PARTIES TO CONTRACTS— con^muf^i. (c.) brokers, 464^69. how distinguished from factors, 464. definition of, 464, n. (u). cannot sue on contracts made by them as such, 465. generally not liable on such, lb. unless under usage, lb. in London must be duly admitted, lb. stock, person employing, bound by custom of Stock Exchange, 59, 60. employed to speculate cau recover com- mission, 268, n. (w). insurance, 467-469. {d) factors, 464, 469-483. how distinguished from brokers, 464. same as commission agents, 469, 470. pledges by, 471-480. changes in law as to, by Factors' Act, 1877, 475, 478-480. (e.) wife, 483-499. binds husband on ground of agency, 484. implied authority of, when living with hus- band, to contract for necessaries, 486. unless tradesmen forbidden to trust, 487, 490. or she is forbidden to get goods on credit, 491. how far qualified by Married Women's Property Act, 1882, 8. 1, 487. when living apart from husband, to contract for necessaries, 492-494. where separation caused by his fault, 492, 494. by mutual consent, 498, 494. separated, has no such authority where allow- ance sufficent, lb. or agreed on as such, 494. nor where separation not by his fault or consent, 494. 590 INDEX. PARTIES TO COl^TRACT^— continued. (e.) wife, separated — continued. what are necessaries for, while living with husband, 487-490. living apart from him, 495-499. PARTITIONS, must be by deed, 37. PARTNERS, 453-464. See Parties to Contracts, ix. (6). PARTNERSHIP, what it is, 454. test of liability as member of, what is, 455. PART PAYMENT, under Statute of Frauds, 142, 143. See Statute of Frauds, Sec. 17. takes case out of Statutes of Limitation, what, 512, 531-536. See Limitation, Statutes of. mutual settlement may amount to, 532, 533. verbal admission sufficient proof of, 536, 537. PART PERFORMANCE, rule of Equity as to, taking case out of Statute of Frauds, 99-101. PATENT AMBIGUITY, 49. cannot be explained by verbal evidence, lb. PATENTS FOR INVENTIONS, assignable only by deed, 37. PAYMENT. See Part Payment ; Compulsory Payment. PENALTY, implies prohibition, generally, 250-254. but not always, 255. PENCIL, signature in, sufficient to satisfy Statute of Frauds, 95. POLICIES, to be printed or written, 152. wager, 272-276. sea, 153, 154, 274. fire, 153, 154, 273. life, 153, 154, 275, 276. POLICY OF THE LAW, 209, 213, 241-243. See Public Policy. POST, letter sent by, may complete contract, though it never ar- rives, 163, 164. INDEX. 591 PRINCIPAL AND AGENT, 405-500. See Parties to Con- tracts, IX. PROHIBITION, penalty implies, generally, 250-254. but not always, 255. PROMISE, to answer for debt, default, or miscarriage of another must be in writing, 76, 77, 80, 105. See Guaranty. by executor or administrator to answer damages out of own estate, 76, 102. consideration of, 77, 103-105. made to debtor to pay his debt, 114. to make will leaving laud, must be in Avriting, 130. to pay debt released by discharge in bankruptcy, 204 ratification of, by infant, alteration in law as to, 151, 325, 326. to marry, by infant cannot be ratified on attaining full age, 808. in consideration of marriage, 113-115. illegal, void, 208. to do several acts, some illegal and some legal, 20, 208. PROMISEE, disadvantage to, a consideration, 170, 171. cousideration must move from, 175. PROMISER, benefit to, a consideration, 170, 171. PROMISSORY NOTES, cousideration presumed, 181, 182. given for illegal consideration, 295-298. given to wife dum sola, at Common Law, 330. under Companies Act, 1862,... 400-402. PROPERTY, separate, of married woman under Married Women's Prop- erty Act, 1882,... 337, 338. includes choses in action, 338. bound by their contracts, 352, 354. liability of married woman limited to, 354. PROPOSAL, in writing signed, if accepted by parol, sufficient within Statute of Frauds, 96. 592 INDEX. PROSTITUTE, supplying lodgings or clothing, &c., to, to enable her to carry on her practices, illegal, 211, 212. PROVISIONAL COMMITTEE, 423. PUBLIC COMPANIES, 381-404. See Parties to Contracts, viir. PUBLIC DUTIES, contracts inconsistent with, 235. PUBLIC HEALTH ACT, corporation for public purposes under, 379, 381. must contract under common seal, when, lb. PUBLIC POLICY, contracts opposed to, void, 209, 213, 241-243. in restraint of trade are opposed to, 214. but partial restraints of trade are legal, 215. what are partial restraints of trade, 216- 225. they must be reasonable, 215, 218. must be founded on consideration even if by deed, 17, 225. but adequacy of consideration, cannot be decided by court, 226, 227. in restraint of marriage are opposed to, 228. tending to separation are, lb. founded on immediate or existing separation not, lb., 229. marriage brocage contracts, 229. contracts obstructing the course of justice, 231-236. but indictments for some misdemeanours may be compromised, 233. contracts inconsistent with public duties, 235. to indemnify against illegal acts, 236. against liability as bail, 236, n. (n), 305, n. (0. maintenance and champerty, 236-238. contracts with alien enemies, 239. contravening the objects of Acts of Parliament, 239-241. Apothecaries' Act, 240. Winding-up Acts, 241. bankrupt laws, 240, 242. distinguishable from Policy of the Law, 241, 242. INDEX. 59eS RACES, horse, 261-265, 270, 272. foot, 265, 272. dog, 265. betting on, 264, 265, 269-271. agent employed to bet on, right of against his employer, 271. RATIFICATION, of promise by infant, alteration in law as to, 151, 152,325, 326, of contracts of company if ultra vires, invalid, 397, 398. of contract by agent, 430, 431. RECEIPT, not under seal does not estop party from denying the receipt of the money, 21. if under seal does estop, lb. RECITAL, in deed, estoppel by, 21-25 RECOGNIZANCES, 3. in the nature of a statute staple, lb. between the Crown and subject, lb. of bail, 4. registering, lb. scire facias, to enforce, lb. within what time, 505, 506. RECORD, CONTRACTS OF, 3, 4. statutes staple and statutes merchant, 3. recognizances, lb. in case of receiver under Court, lb. incidents of, 4. prove themselves, lb. enforced by scire facias, lb. discharged by release, lb. remedy on, 4, 502. RELEASE, obligation by record, discharged by, 4, 5. obligation by deed, discharged by, 31. REMEDY, of married woman, on contract, at Common Law, 828-331, 341-346. under Married Women's Property Act, 1870,... 348, 349. 38 594 INDEX. KEMEDY — continued. of married women, on contract — continued. uuder Married Women's Projierty Act, 1882,... 350, 351. against married woman, on contracts, none at Common Law unless husband also liable, 340, 351. against her separate estate, in Equity, 352. and under Married Women's Property Act, 1870,. ..332, 351, 352. under Married Women's Property Act, 1882, ...350, 354. against joint-stock companies, under Companies Act, 402, 403. ordinary, by action, 500. for damages, lb. specific performance, lb. scire Jacias the remedy when contract of record, 4, 502. formerly, action of debt, remedy in every case of pecuniary duty from one person to another, 502. action of covenant, remedy on contract by deed, 503. assumpsit remedy on simple contract, lb. action of account, lb. must be pursued within times of limitation, lb. See Limi- tation, Statutes of. REMUNERATED, and UNREMUNERATED AGENTS, 190. REPUDIATION of contract, memorandum containing, may satisfy Statute of Frauds, 150. of wager, when it entitles party to recover stake, 270, 305, n. (f). where betting agent employed and pays, 271. of illegal transaction, when it entitles party to recover back money paid, 305, 306. REQUEST, when previous, required, 194. • implied, 194-202, 204, 205. RESCINDING, of contracts under Statute of Frauds may be by parol, 151. See Statute of Frauds. offer may be rescinded until acceptance, 160, 164. contract tainted with Fraud, option of, 244. ixDEx. 595 RESIGNATION BONDS, 286-290. RESTRAINT OF TRADE, coutracts iu, 17, 20, 214-228. See Public Policy. if general, void, 215, if partial, legal, lb. if reasonable, and for a consideration, lb, must be reasonable, 20, 215, 218. must be founded on consideration, 215, 225. though by deed, 17, 215. but court will not decide upon adequacy of consideration, 226. instances of, held good, 217-220, 222-225, 227. held bad, 218-221. unlimited as to time, 217. limited as to time, 227. unlimited iu point of space, 221, 224, 225. doctrine as to limits does not apply to sale of secret, 224. where limited in point of space, rule for measuring distance, 225. REVENUE ACTS, when prohibition in, makes contract illegal, 254—256. SALE OF GOODS, of value of £10 or upwards, 141-151. See Statute of Frauds, 17th Sec. SALES ON SUNDAY, 280-282. SCIRE FACIAS, to enforce record, 4, 502. on recognizance, limitation, 505, 506. SEAL, contracts under, 3, 5, 6. one of three classes of contracts, 3. to deeds, 7. corporations must contract under common, when, 370-381. when not necessary to contracts of company under Com- panies Acts, 1862, 1867,. ..399, 400. SEALING, essential to a deed, 6. • 5dC) INDEX. SECURITIES, for gaming consideration, 295-298. SECRET, sale of, under stipulation restraining vendor generally, good, 224. SEDUCTION, past, no consideration to support a promise, 17, 211. bond for maintenance founded on, good, 17. SEPARATE ESTATE. See Property. SEPARATION, contracts tending to, 18, 228. founded on immediate or existing, 229. SERVANT, where service of, hired for a year, to begin at a future time, writiug necessary, 135. under verbal contract for yearly service, remedy of, where discharged before year out, 100, 139. SHARE, iu public companies, 384. transferring, 385-387. not within Statute of Frauds, 142, 387. transfer of, in Companies under Companies Acts, 404. SHIP, conveyance of property in, when to be in writing under seal, 38." insurance of, without interest, invalid, 274. SIGNATURE, not necessary to a deed at Common Law, 5. under Statute of Frauds, of party to be charged, 93. See Statute of Frauds, Sec. 4. does not matter where signature placed, 93. of party to be charged sufficient, 96. may be in double capacity as agent and guarantor, 116. of chairman affixed to minute book of company suf- ficient to satisfy statute, 97. of party to be charged under Sec. 17,. ..146. one cannot sign for the other, 146, 409, 410. but ageiit of one can sign for the other, 411. of agent as to acknowledgment of specialty debt, 510. 529. of simple contract debt, 530. INDEX. 597 SIMONY, 282-290. SIMPLE CONTRACTS, what are, 5, 40. difference between, and contracts by deed, 40, 41, 165, written or not written, practical difference between, 41. if written, proof of, 41. must be proved by the writing only, lb. reason of this rule, lb. cannot be altered, added to, or diminished by con- temporaneous words, 42, 43. nor by evidence of the parties having acted on a par- ticular supposition of meaning, 46. but may be shown to have been varied by parol sub sequeutly, lb. but not where the law requires a writing, 46, 47. patent and latent ambiguities in, 49. may be qualified by usage and customary incidents, 55. usage or custom, 55, 56. customary incid* nts may be annexed, 55-63. technical or local terms in, 64-68. but if the meaning be plain it cannot be contradicted, 68. evidence of usage does not raise a conclusion of law but of fact, 70, 71. court to construe document when meaning of words ascertained, 71. custom, &c., does not apply to unusual contracts, lb. rules as to written contracts do not apply unless con- tract complete, lb. writing necessary to some, 41, 74- Statute of Frauds, 74-151. objects of, 75. 4th Section of, 76. 17th Section of, 141. contracts provided for in 4th Section, 76, 77. consideration must appear in, when, 77-80. expressly or by implication, 80. except in guaranties, 77, 79, 80, 115. all the other terms must appear in, 80. 598 INDEX. SIMPLE COl^TRACTS— continued. Statute of Frauds — coniinued. agreement need not be contained in one writing, 85, 146. but if in several papers, they must be connected among themselves, 89, 147. signature of party to be charged, 93, 96. if party intended to bind himself by his signa- ture, immaterial where he signs, 93. if party to be bound signs, other party need not, 96. agreement must exist before action brought upon it, 97. if unwritten, not void, but no action can be brought on it, 97, 98. both parties must consent to the same thing, 153. mutuality necessary in, 154, 155. assent must be to precise terms offered, 158. when offer accepted binding on both, 160. offer may be rescinded until accepted, 160, 164. require a consideration, 165. maxim oi nudum pactum, 14, 15, 103, 167. reason of this rule, 168. consideration of, 165. general definition, 170, 171, 204. benefit to the promiser or disadvantage to promisee, 170, 171. must move from promisee, 175. adequacy of consideration not important, 176-180. but must be of some value, 180. but bills and notes always presumed to be on con- sideration, 181, 182. forbearance a consideration, 183-186. of doubtful claim, 186. of unfounded claim, 186, 187. trust a consideration, 189. remunerated and unreniunerated agents, 190. being compelled to do another's duty sufficient con- sideration to support a promise to indemnify, 192, 197. executory considerations, 194, 195. INDEX. 599 SIMPLE COl^TRACT^— continued. consideration of — continued. executed considerations, 194-202. difference between, aud executory, 194. require previous request, lb. when previous request implied, 197- 202, 204, 205. where one is compelled to do another's duty, 197, 205. where benefit of consideration adopted, 199, 205. as in case of goods supplied to children, 200. if the adopter had power to accept or refuse, 201. voluntary performance of another's duty, 201, 205. moral considerations, 202. general summary as to, 204, 205. promise, 205. lituitation of, when implied by law, 206, 207. time of limitation of actions on, 513, 514. See Limitation, Statutes of. SPACE, contract unlimited in point of, in restraint of trade, when valid, 224, 225. formerly not, 214. SPECIALTY, action on, when to be brought within 20 years afler cause of action accrued, 38, n. (x), 505, 506, 508, 509. when within 12 years after accruer of right, 38, n. (x), 508, 509. SPECIALTY CONTRACT, 2, 5-39. See also Limitation, Statutes of, (a). SPECIFIC PERFORMANCE, when a remedy on contract, 500. STAKE. See Stakeholder. STAKEHOLDER, money deposited with, when recoverable from, 270, 805, n. (t.) STATUTE, CONTRACTS ILLEGAL BY, 209, 250-293. are so whether forbidden expressly or by implication, 18, 250. 600 INDEX. STATUTE, CONTRACTS ILLEGAL BY— continued. peualty implies prohibition, 250, 251. immaterial whether forbiddeu for the sake of the revenue or any other object, 254. but illegality incidental to contract, does not avoid it, 256. gambling, 260-272. horse-races, 261-265, 267, 269-272. betting on races, 261-265, 269-271. wagers on games, 260, 261, 265. bets not on games, 265-269. contracts by way of gaming or wagering not unlawful at Common Law, 260. but now all such contracts are void by statute, 260, 266- 269. wager policies, 272-276. See Insurance. stock jobbing contract, void as a wager, 268. contracts of worldly business on the Lord's Day, 277-282. Sunday sales, 280-282. simony, 282-290. resignation bonds, if general. 289. or if not in favour of certain specified relations, 290. illegal charges on benefices, lb. illegal weights and measures, 291, 292. contracts by illegal companies, 292, 293. bills and notes and other securities given for illegal consid- erations, how far invalidated, 296-298. for gaming considera lions, lb. STATUTE OF FRAUDS, 74-151. renders signature necessary to certain contracts, 5. authors of, 74. objects of, 75. 4th Section of, 76. contracts provided for in, 76, 77. when consideration must appear in, 77- 80. expressly or by implication, 80. except in case of guaranties, 77, 79, 80, 115. all the other terms must appear in, 80. INDEX. 601 STATUTE OF FRAUDS— continued 4th Section — continued. contracts provided for in — contviued. need not be contained in one writing, 85. if in several, they must be connected in sense among themselves, 89, 90. signature of party to be charged, 93, 96. if party intended to bind him- self, immaterial where he signs, 93. if party to be charged sign, sufficient, 96. agreement must exist before action brought, 97. if unwritten, not void, but will not support action, 97. if unwritten but part performed, rule of Equity as to, 99-101. by executors, &c., to answer damages out of their own estate must be in writing, 76, 102. consideration necessary in, 103- 105. guaranty, 76, 77, 79, 80, 105-120. person whose debt, &c., guaran- teed, how far must continue lia- ble, 106-112. default or miscarriage in breach of any duty, within the statute, 113. new consideration does not dis- pense with necessity of writing, 112. the promise within the statute must be one made to the creditor, 114. consideration of. need not be in the writing, 77, 79, 80, 115. fraudulent representations not within Statute of Frauds, 117. but within 9 Geo. 4, c. 14, s. 6, 117, 118. 602 INDEX. STATUTE OF FRAVDS— continued. 4th Section — continued. contracts provided for in — continued. agreements in consideration of mar- riage, 76, 77, 120, 122. mutual promises to marry not in- cluded iu, 121. contracts for sale of lands, 7G, 77, 127. what is such contract, 127-134. fructus industriales, 125. emblements, lb. timber, 126, 127, 142. fixtures, 127, 142. lodgings, 128. giving right to kill and take away game, 130. agreement for lease, 1 32. right of action only affected, 97, 131. contracts not to be performed within a year, 77, 134-139. possibility of extending beyond a year does not make writing neces- sary, 134-136. if all to be done by one party is done within the year, he may sue the other without a writing, 137, 138. shares in public companies not within, 142, 387. 17th Section of, 141-151. sale of goods for price of £10 or upwards, lb. what are goods within this section, 142. difference between this section and 4th, 142-144, 148-150. acceptance of goods, part payment, giving of earnest, 141-143. non-compliance with, does not make contract void, as formerly thought, 143, 144. this section extended to goods not in existence, 145. and to goods of value instead of price of £10, lb. INDEX. 603 BTATUTE OF FRAViyS— continued. 17th Section — continued. rules as to the written memorandum analogous to those under 4th Section, 146, 147, 149. signature of party to be charged, 146. names of parties, or a sufficient description, must appear in memorandum, 148, 149. one cannot be the other's agent, 146, 409, 410. but agent of one party may act as agent of the other, 411. several documents may be read together, 146. meaning of ■word bargain in, 148, 149. memorandum may be sufficient to satisfy, though it repudiates the contract, 150. contracts under, may be rescinded by parol, 151. shares in public company not within, 142, 387. STATUl^ES, rule of construing words ejusdem generis in, 279. rule as to commencement of operation of, 331. mode of construing, generally, 556, 557. STATUTES OF LIxMlTATION. See Limitation, Statutes of. STATUTES MERCHANT, contracts of record, 3. when they bind lands, 4. STATUTES STAPLE, contracts of record, 3. when they bind lands, 4. STATUTE OF USES, bargain and sale under, 17. covenant to stand seised under, lb. STOCK EXCHANGE, customs of, binding on person employing broker on, 59, 60. but must be reasonable and legal, 60. broker employed to speculate on, can sue for commission, &c., 268. STOCK JOBBING, Acts now repealed, 277, n. (a). but contract by way of, may be void as a wager, 268. STOPPAGE IN TRANSITU, what, 481, 482. how right defeated, 482. G04 INDEX. SUNDAY SALES, 280-282. SURRENDER of interests in lands must be by deed, when, 37. TECHNICAL TERMS, explained by parol, 64-68. meaning of, may be for jury, 70, 71, 542. TERMS, technical or local, explained by parol, 64-68. meaning of, may be for jury, 70, 71, 542. THREAT to prosecute, how far vitiates subsequent agreement, 232. TICKET, acceptance of, without objection, how far assent to terms thereon, 154. TIMBER, contract for sale of, 126, 127, 142, 143. acceptance of growing, 143, n. (c). TITLE to goods, rule of law as to giving, 156, 483. where fraudulent contract unrescinded, 248, 249. qualified by Factors' Acts, 483. TORTS AND CONTRACTS, 1. all subjects of Common Law actions divisible into, 2. TRADE, contracts in restraint of, 17, 20, 214-228. See Public Policy; Restraint of Trade. infant cannot, 319-324. TREATING, contract for, void, 235. TRUST, a consideration, 189. ULTRA VIRES, contracts of companies, void, 397, 398. UNDERWOOD, sale of growing, to be cut by purchaser, an interest in land, 126. UNREMUNERATED AGENTS, 190. UNWRITTEN SIMPLE CONTRACT, difference between, and written, 41, 74. INDEX. 605 URBAN AUTHORITY, under Public Health Act, 1875, a corporation, 379. not liable for contracts over £50 unless under seal, 379-381. what are such contracts, 380, 381. USAGE, may qualify written contracts, when, 55-71. parol evidence admissible to prove, 55, 59. evidence of, does not raise a conclusion of law but of fact, 70, 71. inadmissible to contradict what is plain, 68-70. or where usage contradicts law, 70. principal bound by contract of agent according to, 59, 60, 424-429. unless usage at variance with relation between them, and principal ignorant of it, 427. must be cotemporaneous, 428. if deviated from, principal not bound, 428, 429. USES, STATUTE OF, bargain and sale under, 17. covenant to stand seised to uses under, lb. USURY LAWS, now abolished, 260 n. (e). VALUE, consideration must be of some, 180. of £10, sale of goods of, 145. of £50, contracts exceeding, by urban authority, to be under seal, 379. VENDOR AND PURCHASER, must be named, or sufficiently described in memorandum, to satisfy Statute of Frauds, 82-85. VERBAL EVIDENCE, cannot vary written contract, 41, 43. VOTERS, contracts to induce, to vote, void, 235. WAGERING, contracts by way of, not unlawful at Common Law, 267. but void by Statute, 260, 266. WAGER POLICIES, 27^276. WAGERS, 260-272. 606 INDEX. WEIGHTS AKD MEASURES, by what Act dow regulated, 291. coutraets not iu terms of imperial, lb. WIFE, 328-355, 483-499. See Parties to Coktracts, ii.; IX. (e). WILL, nuncupative, of personalty, since Statute of Frauds, 76. of land, promise to make, within 4th section of Statute of Frauds, ISO. WINDING UP ACTS, agreement contrary to policy of, 241. WORDS, to be understood in ordinary sense, 70, 561-568. WRITING, sealed and delivered is a deed, 5, 14. on paper or parchment, essential to a deed, 5. where necessary, subsequent variation by parol not allowed, 46, 47. contract for the purchase of land, must be in, 76, 77, 122. written contracts must be proved by, 41. necessary to some simple contracts, 41, 74. agreement need not be contained in one, 85, 146. if in several Avritings, they must be connected among themselves, 89, 147. not dispensed with by new consideration, 112. contracts not to be performed within a year, must be iu, 76, 77, 134. contracts of insurance to be in, or printed, 152. promise to pay debt barred by Statute of Limitations, must be in, 153, 510, 519, 520. WRITTEN SIMPLE CONTRACTS, difference between, and not written, 41, 74. proof of, 41. See Simple Contracts. THE END. '>A P- UC SOUTHERN REGIONAL LIBRARY FACILITY