;i I Ai A 8 5 8 1 1 3 Uni 'Hi ! THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW PHIKCIPLES OF CONTEACT . AT LAW AND IN EQUITY A TREATISE ON THE GENERAL PRINCIPLES CONCERNING THE VALIDITY OF AGREEMENTS IN THE LAW OF ENGLAND AND AMERICA Sir FREDEEICK POLLOCK, Baet., OF LINCOLN'S INN, BARRISTER AT LAW; CORPUS PROFESSOR OF JURISPRUDENCE IN THE UNIVERSITY OF OXFORD; LATE FELLOW OP TRINITY COLLEGE, CAMBRIDGE; D. C. L. OXFORD; HON. LL. D. EDINBURGH, DUBLIN AND harvard; and corresponding member op the INSTITUTE OP FRANCE. THIRD AMERICAN FROM THE SEVENTH ENGLISH EDITION WITH ANNOTATIONS AND ADDITIONS GUSTAVUS H. WALD, LATH DEAN OF THE LAW SCHOOL OF THE UNIVERSITY OP CINCINNATI. SAMUEL WILLISTONT, WELD PROFESSOR OF LAW IN HARVARD UNIVERSITY. "This notion of contract is part of men's common stock even outside the field of legal science, and to men of law so familiar and necessary in its various applications that we might expect a settled and just apprehension of it to prevail everywhere. Neverthe- less we are yet far short of this.'"— Savigny, System des heutigen romischen Rechts, § 140. NEW YORK: BAKEE, YOOEHIS & C0MPA:N'Y. 1906. Copyright, 190t5, By RICHARD H. WALD. J. E. LYON COMPANY PRINTERS AND BINDERS ALBANY. N. Y. PREFACE. This book owes its origin, as the title implies, to the work of the late Gustavus H. Wakl. He devoted much time in his early manhood to the preparation of two earlier editions of Sir Frederick Pollock's work, the later of which appeared in 1885, and the thorough and scholarly character of his American anno- tations won deserved recognition. Having in mind the possibility of further editions Mr. Wald habitually noted in their appro- priate places in an interleaved copy of his book all decisions bearing on topics therein discussed, wdiich his regular examina- tion of current reports brought to his attention. At his untimely death in June, 1902, these manuscript annotations containing citations of the decisions of the courts for the preceding seven- teen years came into the possession of his brother, Mr. Richard H. AYald, who, impressed with their value, and feeling that prop- erly prepared for the press, they would furnish the basis for a new edition, put the material, both printed and unprinted, into my hands. His only stipulation in so doing was that the book which I should prepare should be " Wald's Pollock on Contracts," and it is rightly so called. The material necessarily had to be recast and put in shape for the printer. In doing this I liave had a free hand and have endeavored simply to make as good a book as I could with the use not only of Mr. Wald's materials but of matter wdiich I had accumulated while teaching the sub- ject of contracts at the Harvard Law School. It has not been practicable to distinguish in the American notes between the late Mr. Wald's work and my own. Where I have thought I could make an improvement I have done so, and few of the notes are in the exact form in which Mr. Wald left them, but the great bulk of the work — not only the collection of cases, but the statement of their effect and the comment upon them — is Mr. Wald's. Sir Frederick Pollock has unfortunately never fully com- pleted his book on contracts. In the preface to the fourth edition he expressed the hope of filling in later editions gaps left by the 642^6^4 L'AW IV PREFACE. omissions of such topics as the performance and discharge of contracts. The chapter entitled Duties under Contract, first inserted in the fifth edition, is the only chapter, however, which has been added by the author, and this, though excellent as far as it goes, is not a full presentation of the subject with which it deals. In order to make this edition, so far as possible, a com- plete treatise on the law of contracts, I have ^VTitten a chapter on the discharge of contracts and portions of chapters on promises for the benefit of a third person and on the repudiation of con- tracts. The responsibility for these additions is wholly mine. They are included in pages 237-278, 333-369, 811-880'. The American annotations are printed in full lines at the bottom of the pages and are numbered with arable figures, being thus readily distinguishable from the English notes, which are printed in half lines and headed with italic letters. In a few instances additional matter has been inserted in the English notes, but such additions are always in brackets. The English text has not been altered. My thanks are due to Sir Frederick Pollock for his cordial assent to my request for permission to prepare this edition. SA^IUEL WILLISTO:^. Cambridge, November 1, 1905. TABLE OF CONTENTS. CHAPTEE I. Agreement, Proposal, and Acceptance. PAGK. Xature of contract 1 Definitions 2 Agreement : nature of consent required 3 Obligation 4 Ways of declaring consent 5 Promise 6 Contract 7 Void agreements 7 Voidable contracts 8 Tvules as to proposal and acceptance 9 Express and tacit contracts, and quasi-contracts 10 Proposals to unascertained persons (contracts by offer of reward, &c.) .. 13 Discussion of cases 15 Difficulties considered 19 Theory of floating oldigation inadmissible 21 Other kinds of general proposal 24 Contract by indirect communication 26 Revocation of offer 27 Determination of offer '. 29 Communication of revocation 30 Dickinson v. Dohhs considered 32 Can there be double acceptance ? 33 Communication of acceptance 35 Contracts by correspondence 37 Artificial theories on the subject 38 State of English authority ■ 39 Effect of death of proposer 42 Certainty of acceptance 43 Agreements in terms where consent not final 45 Certainty of terms of agreement 48 Illusory promises 49 Construction of tacit acceptances 52 Promises by deed m&j bind without acceptance 55 CHAPTEE 11. Capacity of Parties. Variations in personal capacity 58 Artificial persons ..^. — ...... 59 Limitations of capacity 5'.> Infants. General statement 59 Contracts voidable, not void 59 Supposed distinction between void and voidable contracts now ex- ploded 60 [V] VI TABLE OF CONTENTS. PAGE. Special classes of contracts considered on this point 61 Avoidance of infant's contracts 66 Infants Relief Act. 1874 69 Liability on obliujations incident to property 73 On beneficial contract 74 For necessaries 76 Sale of Goods Act, 1893, s. 2 76 What are necessaries 78 Certain contracts of infants binding by custom 81 By statute 81 Liability of infants on wrongs collateral to contract 82 In equity, on representations of full age 84 Subsequent contract after full age prevails 86 2. Married Wouicii. Can contract only as to separate property 87 Ins mariti and survivorship 89 Cannot revive barred debt by acknowledgment 90 Exceptions at common law 90 Custom of London as to married woman trading alone 91 Agreements for separation betAveen husband and wife alone 92 Statutory exceptions: judicial separation, &c 93 Equitable doctrine of separate estate 94 ^Married Women's Property Act, 1882 94 3. Lunatics and Drunken Persons. Old law 98 Modern law : contract not void but voidable 100 4. Convicts, dc 104 Extension of capacity 105 1. Agency 105 Authority of agent 105 Contracts by authorized agents 107 When agent known to be such, there is contract with principal 107 If principal named, prima facie no contract with agent 107 If principal not named, prima facie there is contract with agent. . . . 108 These rules subject to evidence of contrary intention Ill When agent not known to be such, there is generally contract with undisclosed principal 112 Exceptions to and limits of the rule 113 Rights of other contracting party 115 Professed a^ent not having authority cannot sue on the contract if a responsible principal has been named 117 Nor be sued on it 119 But may be sued on implied warranty of authority 119 Where no principal named, or one who could not be responsible, pro- fessed agent is treated as principal 123 2. Artificial Persons 124 Nature of artificial persons 124 Corporations : common law doctrine 126 Capacities of corporations in themselves 128 As limited by positive rules 133 As determined by purposes of incorporation 13:? Application of partnership law 134 Public policy and interests of the public 138 Corporations cannot bind themselves by negotiable instruments: ex- planations of this 143 Exceptions 140 Conflicting theories in \J. S 146 Corporations bound by estoppel, &c 147 TABLE OF CONTENTS. Vll CHAPTER III. Form of Contract. PAGE. I. Formality in Early English Law 148 Modern principles as to requirements of form 148 Position of informal contracts in ancient law 149 Formal and informal contracts in Roman law 149 Archaic modes of proof 1,50 The deed in English medieval law 150 Remedies on contracts: debt on covenant or simple contract 151 Action of covenant 152 Action of account 153 II. The Action of Asstimpsif 154 Introduction of assumpsit to supply remedy on executory agreements.. 154 III. Modern Requirements o^ Form 157 Modern law : requirements of form exceptional 157 Contracts of record 157 Contracts subject to special forms 158 1. Contracts of Corporations 159 Old law ; requirement of seal 159 Modern exceptions 161 Trading corporations: contracts in course of business 162 Xon-trading corporations: contracts necessary and incidental to cor- porate purposes 164 ^Municipal corporations, &c 164 Appointments of officers 165 Executed contracts with corporations 166 Statutory forms of contract 167 Summary 168 2. Xegotiahle Instruments 168 3. statutory Forms 168 A. Statute of Frauds 168 Guarantees 169 Agreements upon consideration of marriage 172 Interests in land 172 Agi-eements not to be performed within a year 175 Sale of goods 178 The " note or memorandum " 178 Transfers of ships and copyright 183 B. Marine Insurance 183 C. Transfer of Shares 184 D. Acknoicledgment of Barred Debts 184 CHAPTER IV. Consideration. Definition of consideration 185 Gratuitous promises 186 Early history of the doctrine 187 Assumpsit 189 Causa in Roman law 189 Benefit to promisor 192 Adequacy of consideration 193 Past consideration ineflfectual 199 Acknowledgment of barred debts 201 Promises to perform duties already existing 203 Till TABLE OF CONTENTS. PAGR. Performance of obligation to third person 20G Consideration for discharge of contract 210 For vari;ition of contract 212 Forbearance to sue 212 Compromises 214 Treatment of gi'atuitous contracts under seal in equity 216 Imperfect gifts 218 CHAPTER V. Peesons affected- by Contkact. Preliminary 220 Definitions and rules 221 1. Parties must be certain 223 2. Third persons not bound 224 Apparent exceptions 225 Novation 227 3. Third persons not entitled by the contract itself 228 Apparent exceptions 228 Trusts 230 Exception of certain provisions for children 231 Statutory exceptions 232 Contract for benefit of third person gives him no right of action at law 233 Authorities in equity 233 Third person cannot be empowered to sue for convenience of parties. . 235 Negotiable instruments payable to holder of office 236 Law of the United States 237 Distinctions cf property rights, agency, novation, &c 237 Contracts for the sole benefit of a third person 242 Contracts to discharge a debt of the promisor 244 Law of Massachusetts denies rights to sole beneficiary 247 Law of other States 249 Life insurance and other illustrative cases 251 Law as to promises to discharge a debt 255 Assumption of mortgages 260 Other illustrative cases 266 Rights of the promisee 268 Creditor's right to sue both debtor and new promisor 270 Defences 271 Rescission or release 273 Contracts under seal 276 Incidental beneficiaries 277 4. Assignment of contracts 278 Notice to debtor 281 Assignment " subject to equities " 284 Assignment free from equities by agreement of parties: transfer- able debentures 287 Negotiable instruments 290 Rights of bona fide holder 291 What instruments may be negotiable 292 How instruments may cease to be negotiable 294 Transferable shares 295 Obligations attached to property 297 Covenants running with land 298 Bills of lading 302 Conflict between common law and equity as to burden of covenants running with the land 304 The foundation of the equitable doctrine 305 TABLE OF CONTENTS. IX CHAPTER YI. Duties under Contract. PAGE. 1. Interpretation generaUy 307 Necessity of interpretation 307 Agreements in writing: rule against parol variations 310 Apparent exceptions 311 Extrinsic evidence 313 Customs of the country 315 Trade usages, &c 316 Construction: preference of general intention 317 Special rules of construction 318 2. Order and Mutuality of Performance 320 Order of performance in executory contracts 320 IModern authorities look to general intention of contract 320 Effect of default 324 Agreements presumed to be entire 325 3. Default in first or other instalments of Discontinuous Performance . . . . 327 Sales for delivery by instalments 327 Effect of default in instalments 327 Sale of Goods Act 332 4. Repudiation of Contracts 333 A. Rescission 334 Restitution of money, land, chattels, &c 334 Where no performance 338 Repudiation or breach sufficient 339 Election must be manifested 345 Civil law and Indian Contract Act 346 B. Action on the Contract 347 Lord Cockburn's rule 348 Inconsistent with American decisions 348 True rule 350 Contract not terminated 351 Election need not be manifested 353 Prospective inability to perform 354 C. Time When Right of Action Accrues 355 Explanation of early decisions 356 Hochster v. De la four 359 Law in England and America 360 Distinction between defence and right of action 361 Distinction between action for restitution and action on the contract 362 No inconsistency in allowing full damages before all performance due 362 Time of performance fixed by act of the other party 363 Contracts to marry ; 365 Practical convenience 366 Illustrations of inconvenience 367 ""Measure of damages 369 CHAPTER VII. Unlawful Agreements. Of unlawful agreements in general, and their classification 373 A. Contrary to positive law 374 Agreements to commit an offence 374 Agreements wrongful against third persons 376 TABLK OF CONTKNTS. PAGE. Fraud on creditors 377 Dealings between creditor and principal debtor to prejudice of surety 383 J)ealiiij,'s by a-^ent. executor. &c., a<,'ainst his duty 386 Settlements in fraud of marital ri<^ht 392 Married Women's Property Act, 1882 393 Alarriapes within prohibited degrees 395 Royal Marriage Act , 397 Agrc-ements illegal by statute 397 Kulcs for construction of prohibitory statutes 398 When agreements may be not void though forbidden, or void with- out being illegal 404 Wagers 40.") Agreements contrary to morals or good manners 410 Agreements in consideration of illicit cohabitation 411 Validity of separation deeds 413 Agreement for future separation void 418 Publication of immoral or seditious works is not merely immoral but an offence -. 419 Contracts as to slaves 420 Agreements contrary to public policy 421 Connection of the doctrine with the common law as to wagers 421 ^Modern extent of the doctrine: Egerton v. Brownloio 423 Public policy as to external relations of the State 426 Trading with enemies 426 Effect of war on subsisting contracts 427 Negotiable instruments between England and hostile country 429 Hostilities against friendl\' States 430 Trade with belligerents not unlawful 431 Foreign revenue laws 431 Public policy as to internal government: attempts to influence legis- lation, &c., by improper means 434 Sale of offices, '&e 438 Assignment of salaries 439 " Stifling prosecutions " and compounding offences 440 Compromise of election petition 443 Secret agreement as to conduct of winding-up 445 Agreements for reference to arbitration : extent of their validity at common law, and by the Arbitration Act 445 Maintenance and champerty 449 Rules as to champerty 452 Purchase of subject-matter of suit 455 Statute of Henry VIII. against buying pretended titles 457 Maintenance in general 460 Public policy as to duties of individuals 461 Agreements as to custody of children 461 Discretion of equity 462 Custody of Infants Act 463 Insurance of seamen's wages 463 Agreements against social duty 464 Public policy as to freedom of individual action 464 Agreements in restraint of marriage 465 Agreements to influence testators 466 Agreements in restraint of trade 467 General principles 467 Early history of the doctrine 471 Freedom of trade upheld by the common law 472 Particular restraint admitted 474 Restrictive covenants in 17th century 474 Limits of space 475 Modern rule as to limits 475 TABLE OF CONTENTS. XI PAGE. Table of decisions since 1854 478 Measure of distances 480 Indian Contract Act 480 Contracts to serve for life or exclusively 481 D. Judicial treatment of unlawful agreements in general 481 Independent promises, where some lawful and some not 482 Where consideration or immediate object unlawful 483 Unlawful ulterior intention 485 Connection with unlawful design already executed 489 Securities for payment under unlawful agreement are void 491 Extrinsic evidence of illegality 492 Specific unlawful intention, how shown or contradicted 493 When payments can be recovered : rule as to party in pari delicto . . 496 Exceptions : duty of agents to principal unaffected 498 Money recoverable where agreement not executed 502 Where the payment was compulsory 503 In equity where circumstances of fraud, &c., as between the parties. 504 Einal statement of the rule and qualification 505 Conflict of laws in space 506 Generally lex loci sohitionis prevails 506 Exceptions — when a prohibitory municipal law is not merely local. 506 When agreement is immoral iiuv gentium 508 Treatment of slave contracts in English courts: Santos v. Illidge . . 509 Other instances of conflict of laws as to validity of agreement considered 511 Agreements against interests of the local sovereign 513 Conflict of laws in time: subsequent illegality dissolves contract.. 514 Rules as to knowledge of parties collected 516 CHAPTER VIII. Impossible Ageeements. Performance of agreement may be impossible in itself, by law, or in fact (i. e., by reason of particular state of facts) 518 C!«neral statement of law 520 Agreement impossible in itself is void 520 Practical impossibility 522 Logical impossibility 522 Impossibility merely relative to promisor no excuse 523 Agreements impossible in law 524 Performance becoming impossible by law 525 Buying one's own property 526 Impossibility in fact no excuse where contract absolute 527 Performance forbidden by foreign law 530 Obligation to pay rent when premises accidentally destroyed 530 Exceptions in cases of events not contemplated by the contract 534 Performance dependent on specific thing existing 536 Appleby v. Meyers 537 Impossibility at date of contract from existing state of things not known to the parties 539 Sale of cargo already lost: Couturier v. Hastie 540 Covenants to work mines, &c., Clifford v. Watts 541 Construction of express exceptions in certain contracts 542 Performance dependent on life or health of promisor 543 Robinson V. Davison 544 Anomalous decision on contract to marry in Hall v. Wright 546 Limits of rule as to personal services 547 rs Xii TABLE OF CONTENTS. PAGE. Rights already acquired under contract not discharged by subsequent impossibility 548 Subsititiited contracts 549 Inipof-sibility by default o:' either party: such default of promisor is equivalent to breach of contract 549 Default of promisee discharges promisor 549 Alternative contracts where one alternative is or becomes impossible.... 552 C onditional contracts 554 Impossible conditions in bonds: peculiar treatment of them 555 Indian Contract Act on impossible agreements 558 CHAPTER IX. Mistake. Pakt I. — Of Mistake in General. Classification of conditions affecting validity of consent in agreement: Mistake, Fraud, &c 56L A. Mistake in general 564 Generally it is in itself inoperative either to avoid civil liabilities (Except in certain special cases, and except so far as in the case of purchaser for value without notice ignorance is a condition of acquiring rights) 564 Or to take away or alter existing rights 570 Or to alter construction of contract 572 Saving as to variation by mutual consent 572 Special cases where mistake important 574 B. Mistake of Fact and of Law 574 Limits of the distinction : where certainly or probably not applicable. 575 Common mistake and rectification of instruments 576 Eenunciation of rights 577 Recovering back money paid 579 Part II. — Mistake as Excluding True Consent. Division of cases under this head 581 A. Error as to nature of transaction 58.? Thoroughgood's case 583 Foster v. Mackinnon 585 Cases in equity 587 Error as to legal character of transaction 589 B. Error as to the person of the other party 590 Analogous doctrines : satisfaction by stranger 593 Personal contracts not transferable 594 Agency 597 C. Error as to the subject-matter 597 With regard to identity of specific thing 599 Inclusion of parcels by mistake on sale of land 600 Contracts to take shares exceptional 602 Error with regard to kind, quantity, &c 603 Error in price (>05 Error as to quality inoperative unless material and common to both parties f'06 Even if error of one party known to. but not caused by. the other. . 609 Cases distinguished where misdescription of estate on sale entitles purchaser to rescind fill Error as to existence of subject-matter 611 TABLE OF CONTENTS. Xlll PAGEu Purchase of one's own property 015 Herein of ignorance of law : Cooper v. Phibbs 615 Assignments of leases for lives 617 Where only one party is ignorant of the material fact 617 Where fundamental error produced by fraud or misrepresentation. 6 If) Error as to sample in case of sale by sample 619 Remedies of party to void agreement 620 Election to adopt agreement 621 Part III. — Mistake in Expressing True Consent. Correction of mistake in expressing intention 622 1. Rules of construction common to law and equity 622 Effect given to general intent 62.3 2. Peculiar rules of construction in equity 625 A. Restriction of general words 625 B. Stipulations as to time 626 Where time of essence of contract 628 Indian Contract Act thereon 629 C. Relief against penalties 629 3. Peculiar defences and remedies derived from equity 633 A. Defence against specific performance 633 Effect of Statute of Frauds herein 635 B. Rectification of instruments 636 Oral evidence how far admissible 637 Real intention must be distinctly proved, and common to all parties 639 Quasi estoppel of one party acting as other's agent in framing in- strument 641 Reformation of settlements 642 Who is entitled to have deed rectified 643 Rectification as alternative to cancellation 641 Disentailing deeds 644 Agreement executed by Court cannot be rectified 644 Consent orders 645 CHAPTER X. Misrepresentation and Fraud. Pakt I. — Generally. Of misrepresentation in general 646 As to innocent statements 647 Deceit in relation to contract 647 Judicial language as to " constructive fraud " formerly ambiguous 648 Estoppel 1 648 Representation as term of contract 649 The doctrine of " making representations good " 649 Part II. — Misrepresentation and non-disclosure. No general positive duty of disclosure 650 But such duties implied in certain contracts 651 Classes of contracts specially treated 652 Representations amounting to Warranty or Condition 652 Distinctions between warranty and condition on sale of goods 652 Xiv TABLE OF CONTENTS. Cases specially treated: page. A. Insurance 656 Marine Insurance 656 Life Insurance 657 Fire Insurance 658 B. Suretyship and Guaranty 6.59 Extent of creditor's duty to surety 660 C. Sales of land 662 Specific performance and compensation: three classes of cases dis- tin^iislicd 663 General duty of vendor to describe property correctly 669 Wilde V. Gibson considered 671 D. Family Settlements _ 673 E. Partnership, contracts to take shares in companies, and contracts of promoters 674 The Companies Act, 1900 676 Contract to marry not exceptional 677 Voluntary gifts 678 Part III. — Fraud or Deceit. Fraud generally but not always includes misrepresentation 678 Right of rescission 680 Fraudulent representation or concealment 680 " Active concealment " 681 Fraud as actionable wrong: reckless ignorance equivalent to knowledge of untruth 682 Representation of expectation as present fact 683 Special rule as to sales by auction 684 !^Iarriage an exception: not avoided by fraud 685 But knowledge of nature of ceremony essential 685 Consent of third person procured by fraud is voidable 686 CHAPTER XL The Eight of Rescission. General rules as to rescission for misrepresentation or fraud 687 The representation relied on must be of fact 688 Kot of mere matter of opinion 69 1 The representation must be such as to induce the contract 693 Effect of party misled having means of knowledge 693 Materiality of representation 696 Contracts connected with previous fraud 698 Representation must be by a party to the contract 693 Representations of agents and liability of principals 699 Statements of directors and promoters 702 Agent always liable for his own wrong 703 Representation must be in same transaction 703 Rights of party misled : option to rescind 705 Election how to be made 707 Right exercisable by and against representatives 712 No rescission where the former state of things cannot be restored 712 No rescission against innocent purchasers for value 715 Distinction in cases of obtaining goods by fraud where no property passes. 718 Repudiation of shares 719 Rescission must be within reasonable time, i. e., a time not such as to show acquiescence 721 Special duties of shareholders in companies 723 Result of unfounded charges of fraud 724 Cancellation of instruments 725 TABLE OF CONTENTS. XV CHAPTER XII. Duress and Undue Influence. PAGE. I. Duress at Common LaAV 728 Recovery of money paid under compulsion 730 II. The equitable doctrine of Undue Influence 732 Presumption of influence from confidential relations 734 Rules as to burden of proof 738 Rules as to voluntary settlements 738 Presumptions against and duties of persons in fiduciary relations... 73!) Family arrangements 743 Particular cases where influence presumed 744 Relations analogous to parent and child 744 To solicitor and client 745 Spiritual influence 746 Undue influence without fiduciary relation 747 Duty of trustees 748 Undervalue material only as evidence 749 Whether in itself a ground for refusing specific performance 752 Exceptional protection of expectant heirs and reversioners 755 Old law as to sales of reversions 758 Act of 1867 759 Rules of equity as to " catching bargains " not affected 759 What are " catching bargains " 760 Burden of proof 761 Terms of relief 762 The Money-Lenders Act, 1900 763 Sales of reversionary interests , 764 " Surprise " and " improvidence " not substantive ground of relief against contracts, but only evidence of fraud, &c 765 Right of rescission for undue influence 767 Confirmation and acquiescence 769 Special questions as to relation of solicitor and client 770 CHAPTER, XIII. Agreements of Imperfect Obligation. Nature of Imperfect Obligations: Right without remedy 772 1. Remedy lost. Statutes of Limitation 773 Rights of creditor notwithstanding loss of remedy by action 774 Acknowledgment 777 What is sufficient acknowledgment 777 Statutes of Limitation belong to lex fori 779 2. Conditions precedent to remedy not satisfied 782 A. Statute of Frauds, s. 4 782 A law of procedure only, not of substance 784 Results of informal agreement 785 Where money paid 785 Where agreement executed 787 Part performance in equity 790 Informal ante-nuptial agreements, and confirmation by post-nuptial writing 792 Informal agreement as defence 794 Distinction of equitable estoppel 795 B. The " Slip "' in marine insurance 795 Recognition of it for collateral purposes by modern decisions.... 796 Of stamp duties in general 798 Xvi TABLE OF CONTENTS. PAGE. C. Statutes ref^ilatin^ professions 799 Costs of uncertificated solicitors 800 ^ledical practitioners 801 Medical Act, 1886 802 Apothecaries Act 802 Special questions on Medical Act 802 3. No remedy at all 803 Arbitrators 803 Counsel's fees 803 As to non-litif^ious business, or account with solicitor 804 Judicial recognition of counsel's fees 806 Solicitors' Remuneration Act, 1881 806 Special agreements between solicitor and client 806 Certain contracts of infants since Infants' Relief Act 807 Tippling Act 807 Trade Union agreements 808 A converse case on repeal of usury laws 808 Treatment of equitable obligations at Common Law , 809 Summary of results of this chapter 81C CHAPTER XIV. DiSCHAHGE OF CONTRACTS. Methods of discharge 811 Releas'e 812 Nature and effect of 812 Effect of statutes 813 Covenant to forbear 813 Conditional release 811 Construction 814 Rescission hy parol agreement SI."/ Elements of such agreement 815 Agreements before breach of unilateral contract to discharge the obligor 817 Agreements to discharge a party to a bill or note 819 Written contracts 82 1 Contracts under seal 825 Accord and satisfaction 828 Definition 828 Whether an accord is a valid contract 829 Unexecuted no bar at law 831 Equitable relief 833 Accord if taken as satisfaction is a bar 834 Sealed contracts 835 Debts of record 836 Requisites of satisfaction 837 Check sent in satisfaction of a disputed claim 838 Accord and satisfaction with a third person 840 Cancellation and surrender 843 Normal method of discharging specialties 843 Bills and notes 844 Simple contracts 844 Alteration 845 Common law rule — Pigot's case 845 Distinction between conveyances and covenants 845 Kinds of contract to which the rule is applicable 851 Excusable alteration, authority, and ratification 852 Effect of immaterial alterations 859 TABLE OF CONTENTS. XVll PAGE. What alterations are material 859 What alterations are immaterial 863 Assignment of altered contracts 866 When a debt survives the writing 868 Alteration before execution 871 Pleading and evidence 872 Merger 874 By judgment or bond 874 Requisites of merger 876 Arbitration and award 877 Authority revocable before award 878 Arbitrator must follow authority 879 Statutory arbitration 880 APPENDIX. Note A. Terminology and fundamental conceptions of contract 881 Note B. Authorities on contract by correspondence 882 Note C. History of the equitable doctrine of separate estate 886 Note D. Authorities on limits of corporate powers 896 Note E. Classification of contracts in Roman and Medieval Law 902 Note F. Early authorities on assignments of choses in action 906 Note G. Occupations, dealings, &c., regulated or restrained by statute.. 909 Note H. Bracton on fundamental error 913 Note I. Mistake in wills 914 Note K. On the supposed equitable doctrine of " making representations good" 915 Note L. French law on " inofficious " gifts and captation 922 ii TABLE OF CASES. A. PAGE. A. A. Cooper Wagon Co. t'. Wool- dridge 852 A. R. Beck Co. v. Rupp 786 A. Wight Co. V. Steinkemeyer ... 719 Aaron V. Harley 79 Aaron's Reefs v. Twiss 714 Abbey i\ Billups 161 V. Chase 119 Abbott I'. Abbott 850, 857 — — ' V. Bayley 91 V. Creal 102 r. Doane 208, 210 i\ Draper 786 V. Hapgood 121, 226 V. Hunt 174 V. Inskip 789 V. Jackson 892 r. Johnson 134 i\ McKinley 110 V. Rose 585 V. Shepard 39 r. Sworder 754 V. Treat 688 Abel V. Alexander 205, 206 V. Boynton 459 Abell V. Insurance Co 428 Aberaman Ironworks Co. V. Wick- ens 669 Abernathy v. Wheeler 565 Abraham i'. Insurance Co. . . 577, 642 Abrams i\ Wingo 390 Acer V. Hotchkiss 708 Ackenburgh v. McCool 390 Acker r. Bender 834 Ackerman r. Rubens 336 Ackert v. Barker 451, 452 Ackley School District V. Hall. . . . 145 V. Westervelt 890 Ackroyd v. Smith 304 Acme Harvester Co. v. Butterfield. 853 Adair v. Adair 734 V. Winchester 279 Adam v. Meldrum 717 V. Newbigging 714 Adam, etc., Co. v. Stewart 716 Adams v. Adams . . 49, 248, 253, 444 792, 879 r. Barrett 488 V. Beall 67, 69 r. Burbank 550 Adams v. Byerly 361, 365 Coiilliard 432, 486 Cowen 748, 768 Frye 866 His Creditors 100 Honness 216 Irving Bank 729, 747 Kuehn 258, 259, 266 Leavens 286 Lindsell 31, 882, 884 Morgan 312 Nichols 528 ■ Palmer 685 Rodarmel 286 Savre 388 SciiiflFer 731 South British Ins. Co . . . 448 Stevens 802 Stringer 728 Union R. R. Co. 242, 250, 268 Wadhams 258 Yates 873 Adams County v. Hunter 204 Adams Radiator Works i'. Schnader 51 Adamson v. Lamb 820 Addinell's Case 44 Addison v. Cox 283 Adkins v. Flemming 501, 502 ' Adolph r. jNIinneapolis Ry. Co ... . 583 ^tna Ins Co. v. Commonwealth . . 468 r. Fowler 661 ^tna Life Ins. Co. r. Nexsen 363 iEtnaiSrat. Bank r. Fourth Nat. Bank 258, 267 Agar V. Athenaeum Life Assur. Soc 900 Aggs V. Nicholson 293 Agricultural Cattle Ins. Co. v. Fitzgerald 845, 848, 850 Aguilar v. Aguilar 895 Ah Foe r. Bennett 736 Ahearn r. Ayres 10 Ahearne r. Hogan 735, 746 Ahern r. Baker 33 Aigen r. Boston & Me. R. R.. 257, 259 . Blaisdell 402, 486 Nogle 178 Short 580 Western Union Tel. Co.. . 254 [xix] 22 TABLE OF CASES. PA or. Ainsworth r. Mount Moriah Lodge. 532 i: Kitt 532 r. Wilding 50(3 Aitken v. Lang's Adm 42 Aitkins r. Gamble 603 Akerman, Re 770 Akin i: Kellogg 691 Alabama Ins. Co. v. Garner 658 Alabama Land Co. r. Thompson. . 848 Alaska Packers' Assoc, f. Do- menico 204 Alaska Packing Assoc, v. Alaska Imp. Co 419 Albany v. McNamara 11 Albany City Sav. Inst, i: Burdick. G39 Albee v. Wyman 417 Albert v. Perry 401 Albert's Ex. i: Ziegler's Ex. . 828, 844 Albert Lea College v. Brown. 186, 187 Albion Steel Wire Co. r. Martin. . 389 Alcalda r. Morales 258 Alden r. Hart 652 Alderson v. Langdale 869 • r. Maddison 915, 918 Alderton r. Buchoz 782 Aldous r. Cornwell 859 V. Hicks 260, 264 Aldrich r. Ames 171 r. Jackson 654 r. Smith 859 Alexander r. Brogley 584, 585 r. Crosbie 638 i\ Dorsey 532 V. Gardner 359 r. Hickox 845 r. McNear 880 V. N. W. C. University 388 r. Pierce 729 r. Swackhamer 592, 718 Alfred v. Kankakee, etc., R. Co . . . 880 Alger V. Anderson 390, 392 V. Keith 694, 709 V. Scoville 170 V. Tliacker 474 Alie V. Nadeau 876 Alison, Ex parte 613 Alkire r. Alkire 394 Allaire v. Ouland 495 Allard v. Lamirande 451 Allcard r. Skinner.. 733, 737, 738, 747 769, 771 V. Walker 577 Allcock r. Moorhouse 299 Allen V. Allen 62 V. Anderson 608 V. Baker 547 r. Berryhill 101 r. Bryson 11 r. Chouteau 47 r. Coit 110 V. Davison 249, 253 PAGir. Dornan 863 Duthe 187 Dunham 441 First Nat. Bank 404 Flood 225 Ford 707 Frazee 452, 460 Hammond 612, 614 Harris 826, 829, 830, 878 Hart 692 Henly 386 Jaquish 345 Kirwan 19 Leflore Co 747 McNear 880 Maine Cent. R. Co 571 Milner 877 Mut. Compress Co 51 Pegram 122 Rouse 204 St. Louis Bank 389 Sanders 324 Schuchardt 782 Sharpe 384 Smith 786 Thomas 238 Turck 210 Watson 878 Willis 571 Withrow 855 Allen's Appeal 685 Aller V. Aller 217 r. Pennell 550 Alliance Bank v. Broom 213 Alliance Bank of Simla r. Carey. 781 Alliance ]Mut. L. Assn. Soc. f. Welch 257 Allis V. Billings 61, 101 Allison r. Abendroth 211 r. Sutlive 114 Allison Bros. Co. v. Allison 640 Allkins V. Jupe 496, 910 Allore V. Jewell 750, 768 AJlsopp t\ Wheatcroft 480 Almy r. Orme 377 Alpers r. Hunt 452 Alsop r. Riker 774 Alston r. Durant 731 1 V. Richardson 575 Alt r. Groff 82 Althen r. Vreeland 468 Alton V. First Bank 616 r. Midland Ry. Co 84 Alvanley v. Kinnaird 602 Alvarez de la Rosa v. Prieto 803 Alves V. Schlesinger 460 AJvord V. Cook 388, 390 V. Smith 14, 405 V. Spring Valley Gold Co.. 256 261, 262 t\ Syracuse Sav. Bank .... 137 TABLE OF CASES. XXI PACE. Ambler v. Cox 175 Amer r. Folk 839 American Assoc, v. Bear 593 American Bank v. American Wood Paper Co 145 i: Bangs 864 V. Gluck 144 , V. Wall Paper Co 142 American Broom Co. v. Addicks . . 332 American Cotton Oil Co. v. Kirk. . 197 American Ins Co. r. Bass Bros . . . 448 American Life Ins. Co. r. McAden. 344 American Live Stock Co. v. Chi- cago Live Stock Exchange Co. . 372 American Mtge Co. v. Wright... 69 American Nat. Bank v. Klock... 261 269, 272 American Oak Leather Co. r. Por- ter 181 American Pub. Co. i\ Fisher .... 85-2 r. Walker 349 American Refrigerator Co. r. Chil- ton 197 American Splane Co. v. Barber. . . 257 276 American Steamship Co. r. Young. 731 American Strawboard Co. r. Hal- deman Paper Co 298, 300 American Telegraph Co. r. Len- nig 383 American Unitarian Assoc, r. Mi- not 302 Amerman v. Dean 300 Ames V. Colburn 854 r. Jackson 786 r. Manhattan Ins. Co 873 r. Moir 330, 408 Ames-Brooks Co. r. ^Etna Ins. Co. 197 Amey v. C4ranite State Ins Co. . . . 480 Amonett r. Montague 272 Amsden r. Jacobs 409 Anchor Electric Co. v. Hawkes. . . 468 Anchor Insurance Co. Case 578 Anchor Mill Co. v. Railroad Co. . 302 AncliiT r. June 464 Anderson r. Adams 522 r. Anderson 416 V. Armstead 88 ( V. Baxter 778 r. Beard 108 ■ V. Bellenger 862 V. Board of Public Schools. 18 V. Burnett 693 V. Eggers 11 , V. Fitzgerald 658 r. Haskell 342 V. Jett 425, 468 r. Kennedy 635 r. Line 892 r. May 528, 539 V, Miller 282 Anderson v. Moncrief i\ Portland Mills Powell Radcliflfe 453, Rice Soward Standard Granite Co. . . . Timberlake Van Alen Walt€r Anderson's Case Anderson County r. Beal Anderson Transfer Co. v. Fuller. . Anderton r. Shoup Anding r. Levy Andreae r. Redfield Andres v. Fry Andrew v. Boughey — — • r. Brewing Assoc V. Spurr Andrews, Re 17. Andrews 634, 640, r. Becker V. Belfield • r. Burdick 852, V. Cheney r. Jones V. IMarrett r. Mockford 700, r. Salt v. Simms • r. Schreiber Youngstown Co. . . Andrews Co Angell, Re . r. Duke 173, 313, 533, Anglo-American Co. r. Davis Co. . V. Prentiss Anglo-Egyptian Navigation Co. V. Rennie Angier v. Eaton C. & B. Co Angus V. Scully Anheuser-Busch Assoc, v. Mason. Anheuser-Busch Co. v. Bond Ankeney r. Harmon Ankeny v. Clark 343, Anketel v. Converse Ann, Re 96, Anonymous 334, 394, 685, Ansell V. Baker Anthony r. German Am. Ins. Co. • 7\ Herman 261, r. Hutchins V. :Mott Antisdel r. Williamson 264, Antoine v. Morshead V. Smith Anvil Mining Co. v. Humble . . . 353, Apollinaris Co. v. Scherer Apperson r. Cross r. Gogin AGE. 498 no 500 455 346 69 839 107 283 585 571 137 160 110 515 779 160 828 498 577 461 644 284 51 854 345 768 383 705 462 800 40 634 805 921 157 30 538 194 538 486 514 890 344 568 890 753 876 269 277 747 261 382 429 413 352 550 298 383 834 XXll TABLE OF CASES. PAGE. Appleby v. Johnson 44 r. Myers 537 Appleton r. Turnbull 387 Appleton Bank r. McGilvray. . . . 575 Arbenz v. Exley 531 Arbuthnot r. Norton 440 Archer v. California Lumber Co. 639 ' r. Helm 175 V. Hudson 735, 740, 744 V. Stone 118 Ardglasse i\ Muschamp 757 Arend r. Smith 204, 210 Arendale v. Morgan 716 Argenti v. San Francisco .... 142, 161 Argoll V. Cheney 845, 846 Argus Co. r. Albany 181 Arkansas Smelting Co. v. Belden Co 595 Arlington v. Hinds 258 Armijo v. Abeytia 827, 836 Armistead r. Brooke 776 Armitage v. Widoe 67 Armour r. Insurance Co 659 Armstrong r. American Bank. . . . 409 r. Armstrong 493 V. Bank 292 r. Karshner 689 r. Kattenhorn 791 V. Lewis 493 V. McGhee 3 r. Masten 878 - r. Noble 295 . r. St. Paul, etc., Co 353 r. School District 842 r. Stokes 109, 116 r. Toler 485, 489 Arnault r. Arnault 735 Arnegaard r. Arnegaard 395 Arnett v. Cloudas 716 r. Smith 831 Arnold r. Alden 231 r. Arnold 572, 667 ' V. Che-sebrough 158 r. Georgia R. & B. Co 579 r. Hagerman 703 r. Lyman 257 t\ Mavor of Poole .... 159, 165 r. Nichols 258, 266, 272 V. Richmond Iron Works. . . 101 103 r. Rothschild's Sons Co. ... 46 r. Teel 682 Arnot r. Pittston, etc., Coal Co. . 468 486 r. Woodburn 295 Arrison r. Harmstead.. 847, 849, 850 851 Arrowsmith, Ex parte 909 Arthur r. Blackman 536 c. Gordon 30 r. GrisAvold 702 PAGE. Artliur V. Palatine Ins. Co 65!> • r. Wynne 547 Artman v. Ferguson 89$ Arundel v. Gardiner 49S Arundel's Case 127 Ashbrook v. Hite 345 Ashburner v. Parrish 439' Ashbury Rv. Carriage and Iron Co. r. Riche..l34, 136, 139, 143, 624 902 Ashby V. Smith 386 Ashcraft r. Allen 549' V. De Armond 102. Ashcroft r. Butterworth 19 Asher r. Brock 794 Ashley v. Henahan 11 Ashley's Case TlQi Ashling r. Boom 799 Ashmore r. Cox 369, 530, 55& Ash ton r. Dashaway Assoc 132. V. Thompson 735, 737 Ashurst's Appeal 389 Asiatic Banking Corporation, Ex parte 24, 287 Askey r. Williams 79, 81 Aspden r. Nixon 87ft r. Seddon 301 Atchison v. Pease 175 Atchison, etc., R. R. Co. r. Eng- lish 176, 789- r. Jolmson 451 Athenffium Life Assurance Soc. v. Pooley 289- Atherfo'ld V. Beard 422 Atherton r. Low 508. . V. Roche 577, 643 Athey v. McHenry 634 Atkins r. Farr 843 Atkinson r. Allen 729 r. Bell 337 r. Denby 504, 732 - V. Hawdon 869 r. Railroad Co 140 r. Ritchie 514, 527 Atlantic, etc., Coal Co. v. Mary- land Coal Co 639 Atlantic Dock Co. V. New York. . 842 Atla.s Nat. Bank v. Holm 470 Atlee r. Backhouse 728 — < V. Bartholomew 107, 181 V. Fink 390 Attaway v. Third Bank 439 Attenborough v. St. Katharine's Dock Co 716, 718 Attorney-General v. G. E. Ry. Co 134, 139, 902 V. Jacobs Smith 231 V. London County Council . . 902^ r. Railway Co 139 V. Rar 658- r. Sitwell 638. TABLE OF CASES. XXIU PAGE. Attorney-General /;. Whitney .... 875 Attorneys and Solicitors Act, Re. 4.52 Attwooci V. Small G93, 094 Atty V. Parish 344 Atwater v. Manville 500 Atwell V. Jenkins GO, 100 Atwood r. Fisk 488 Auburn Works v. Shultz 187 Audenried's Appeal 735, 740 Auditor r. Ballard 14 Auerbach v. Le Sueur Mill Co.. . . 144 Aulick r. Wallace 022 Ault V. Dustin 340, 301 Aultman v. Olson 585, 587 V. Waddle 451 Aultman & Taylor Co. r. Mead . . . 343 Austerberry v. Corporation of Old- ham 300, 302 Austin r. Burgess 515 r. Davis 199 — • — • V. Guardians of Bethnal Green 159, 105 1 V. G. W. Ry. Co 509 r. Markham 380 r. Wack's 027, 02S Austin Co. V. Bahn 200 Australian Roval Mail^ etc., Co. r. Marzetti . .' 103 Austria, Emperor of v. Day and Kossuth " 420 Austrian v. Springer 181 Autcliff r. McAnally 528 Auten V. Gruner 585 Ayerbeck r. Hall 441 Ayerett v. Lipscombe 033 Ayerill r. Hedge 30 V. Wood 810 Ayerv v. Bo\vden 345, 300, 524 *r. Everett 91 1 V. Hal.sey 495 r. Langford 477 r. Vansickle 891 Axford V. Reid 90 Axson 1-. Blakelv 90 Axtel V. Cha.se .' 242, 343, 340 Aycock r. Kimbrough 175 Ayer v. Warren 91 — — V. Western Union Tel. Co. . 004 Ayer's Appeal 249, 250, 255 Ayers v. Burns 80, 81 r. Chicago, etc.. R. R. Co. . 204 V. Dixon" 201. 209 ' V. South Australian Bank- ing Co 72 Ayerst r. Jenkins. . 412. 413, 488, 498 Ayles r. Cox ' . . . 007 Aylesford, Earl of r. Morris. . 755, 750 757, 758, 759, 700, 701, 703 Ayliffe r. Tracy 180 Aylsworth v. Whitcomb 739 P-IlOE. Ayr Harbour Trustees r. Oswald. 138 Ayres r. Gallup 259, 207 V. Desportes 508 V. Probasco 855 Azemar v. Casella 008, 653 B. B. F. Bruce, Tlie 655 B. S. Green Co. r. Blodgett 430 Babb V. Clemson 848, 850 Babbage r. Coulburn 448 Babbett r. Young 108 Babcock v. Bonnell 571 ■ V. Chase 249, 251, 253 r. Hawkins 834, 835 V. Lawson 710, 718 V. ^Murray 872 • V. Read .■ 174 r. Trice 652, 053 Bach V. Ballard 175 V. Tuch 708 Bache r. Billingham 447 Backer r. Pyne 095 Backus V. Byron 450 • V. Spalding 280 Bacon v. Bonham 459 V. Cobb 528 r. Green 342 V. Hooker 851, 852 V. Reich 870 • V. Woodward 248, 249, 253 Badger r. Celler 452 V. Phinney 08 Badger ^Mining Co. r. Drake 109 Badger Paper Co. V. Rose 187 Badlam v. Tucker 557 Badische Anilin, etc., Fabrik V. Schott 420, 477 Baehr r. Clark 718 V. Wolff 441, 505 Baer r. Knewitz 201 Baer's Sons Co. v. Cutting Fruit Packing Co 449 Bagaley r. Waters 258 Bagge V. Slade 207, 838 Bagley r. Cleveland Rolling Mill Co 053 r. Findlay 330 r. Fletcher 03 \ V. Peddie 033 Bagnall v. Carlton 070 Bagshaw v. Seymour 704 Bag.ster V. Earl of Portsmouth ... 99 Baham v. Bach GS4 Bahia and San Francisco Ry Co., Re ' 280 Bailey r. Austrian 197 r. Bamberger 07, 68 r. Butler 775 I'. Dillon 415 XXIV TABLE OF CASES. PAGE. Eailov r. Oilman Bank 859, 870 V. Harris 403 Bailcv r. Henionwav 174 - 'r. Hope Ins. Co 39 r. Insurance Co 577 r. Mo^g 515, 802 r. Ogden 179 • r. Piper 668 r. Smock 690 r. Stoplions 304 r. Tillinghast 598 Baillie r. Edinburgh Oil Gas- Light Co 880 Baillie's Case 592 Baily r. De Crespigny . . 523, 525, 534 — — ' r. Smith 292 Bailv's Case 30 Baiii r. Brown 390 r. Buff 891 r. P^othergill Oil Bainbridge r. Downie 112 ■ V. Firmstone 194 Bainbrigge r. Browne 744 Baines v. Geary 477 l: Woodfall 46 Baird v. Boehmer 483 r. Mayor 706, 709, 721 r. iSheehan 470 Baird's Case 135 Baker v. Baker 685, 875 r. Bradley 744 - r. Briggs 386 r. Bryan 253 V. Cartwright 677 V. Cooper 417 r. Eglin 245, 258 r. Farris 440 r. Flick 173 V. Hedgecock 477 r. Holt 43 r. Humphrey 387 r. Johnson 525 r. Johnson Co 30, 43 r. Jordan 393 V. Kennett 66, 67, 69 r. Kinsey 295 — ' — r. Lever 722 r. Loader 746 V. Massey 576 r. :Maxwcll 695 r. Monk 750, 765 r. Morton 729 r. Read 743 r. Stone 82 — • — r. Stonebraker's Admrs. . . . 781 r. Whiting 387 Bal r. Van Staden 39 Bald Eagle Vallev R. Co. v. Mit- tany Valley R. Co 302 Baldwin v. Barrows 585 PAGE. Baldwin v. Central Bank 214 V. Emery 257, 268, 209 Baldwin r. Flagg 407 V. Foss 579 V. Insurance Co 577 r. Kerlin 639 — • — r. Lessner 346 r. Liverpool, etc., Co 731 V. Marqucze 353- ^— V. National Hedge Co 636 V. Parker 736 • r. Potter 498 i\ Rosenman 3791 V. Schiappacasse 107 Baldy r. Hunter 431 ' r. Stratton 411 Balfour r. Ernest 293, 898, 899" Ball V. Campbell 408 . V. Dowd 449 ?•. Xewton 14 V. Storie 630, 638 Ballance r. Vanuxem 326 Ballard v. Brown 405 V. Burton 185 — ^— V. Franklin Ins. Co 870 r. Green 409 V. Pope 495 Ballentine v. Robinson 336 Ballingham Co. i\ Brisbois 285 Ballman v. Burt 331 Ballou V. Billings.. 335, 339, 344, 345 V. Hale 175 V. Taylor 775 Baltimore v. Chester 91 r. Peat 299 r. Schaub 332 Baltimore Breweries Co. v. Cal- lahan 176 Baltimore Coal Tar & Mfg. Co. v. Fletcher 112, 115 Baltimore & Ohio R. Co. v. Dia- mond Coal Co 497 Baltimore, etc., R. Co. v. Brydon. 52 V. O'Donnell 514 — • — r. Stankard 449 Baltimore Rv. Co. r. Voigt 436 Baltimore Retort Co. v. Mali 218 Baltimore Sugar Co. v. Campbell & Zell Co 392 Baltzen r. Xicolay 119 Bamfield r. Rogers 678, 738 Banchor v. Mansel 486 Bancroft r. Dumas 399, 402 r. Otis 736 r. Scribner 595 r. Union Embossing Co .... 468 Bane r. Detrick 730 Banet r. Railroad Co 135 Bangs V. Dunn 439 V. Hornick 409 TABLE OF CASES. XXV PAGE. Banigan r. Bard 719 Bank v. Adams 292 i\ Anderson Co 660 r. Archer 142 • c. Balliet 286 V. Bangs 23 V. Bellis 88 i\ Bemis 302 r. Bertschy 786 i\ Blakesley 137 r. Board oif Trustees 137 - i\ Brown 722 r. Brownell 660 V. Bryan 729 V. Burchard 142 V. Burt 528 V. Butler 141 • V. Bynum 286 r. Charlotte 135 t?. Chase 108 V. Clark 25 r.* Collins 891 r. Cook 110 r. Cooper 661 . r. Coster's Exrs 25, 26 V. Crafts 443 r. Curry 867 V. Davidson 508 r. Davis 161 ■ r. Dean 293 r. Dearing 141 i\ Dickerson 383 t\ Diefendorf 292 i\ Dix 122 1-. Donally 781 V. Downey 391 V. Drake 389 V. Eastman 849 ' V. Elliott 302 V. Eltinge 575 • V. Farmers' L. & T. Co 388 r. Faurot 145 V. Field 384 V. Flour Co 147 V. Forty-second St. R. Co. . . 701 V. Friend 119 r. Gallaudet 654 i\ Garlinghouse 142 V. Geary 578 V. German Ins. Co 108 V. Globe Works 144 V. Graham 130 r. Grand Lodge 250, 259 V. Gregg 701 r. Hall 43 V. Hammond 856 V. Harrison 142 V. Hart 23 V. Hatch 383 V. Hawkins 147 PAGE. Bank v. Hendrie 437 r. Hobbs 141 r. Hoeber 378 V. HoUenbeck 103 r. Holtsclaw 292 r. Hooper 291 r. Hornberger 741 i: Hunt 095 V. Hyde 382 V. Insurance Co 577 V. Irebein Co 125 v. Jacobs 140, 144 V. Johns 585 r. Joy 110 r. Kaufman 25 r. Keene 443 r. King 483 i\ Kurtz 654 V. Lansingburgh 173 r. Legrand 384 V. Lierman 585 r. Lineberger 385 V. Lucas 383 r. Luce 25 r. Ludlum 699 r. Lynch 25 • v. Matthews 141, 142 r. McCoy 102 V. McNeir 291 V. Mann 577 V. Mich. Barge Co 144, 699 r. Mining Co 100, 161 i: Monteath 110 r. Moore 102 V. Morgan 292 V. Morton 125 r. Mott 443 I'. Mumford 279 ■ V. Neet 294 r. Nolan 142 V. Nolting 112 V. Ohio Buggy Co 378 V. Owens .'" 142, 390 V. Page 38 > i;. Partee 87, 91 r. Pierce 108 r. Plimpton 115 V. Porter Township 137 V. Pratt 141 V. Pruvn 892 V. Railroad Co 160 r. Rice 25 r. Richards 25 l\ Savery 291 V. Schuler 281 r. Sherwood 142 V. Simons 388 V. Smith 585 i: Sneed 102 V. Sprague 470, 684 XXVI TABLE OF CASES. PAGE. Bank v. Steffes 585 r. Stegall 400 r. Stein 108 r. Stevens 660 c. Strauss 63, 66 ;■. Swayne 142 r. Tavlor 891 r. Texas 295 V. Thayer 386 r. Torfey 386 r. Trauhe 383 r. Traver 891 V. Union R. & T. Co 303 r. United States 382 (". Vanderhorst 106 r. Waggoner 142 r. Wallace 375, 501 r. Webb 583 V. Weston 291 — — ■ r. Whitman 384 V. Whitney 142 r. Young 386 Bank of Australasia v. Breillat. . 135 482 r. Harding 877 r. Nias 877 i\ Palmer 312. 313 Bank of Batavia r. Railroad . . . 302 Bank of Billings t\ Wade 868 Bank of China v. Morse 508 Bank of Columbia v. Patterson.. 161 Bank of Commerce v. Hoeber ... 378 380 Bank of England r. Anderson . . 400 Bank of Hindustan v. Alison ... 613 r. Smith 853 Bank of Ireland r. Evans' Char- ities 147, 160 Bank of Mo. v. Benoist 257 Bank of New Zealand v. Simpson. 314 Bank of Ohio Valley v. Lock- wood 857 Bank of United States r. Daniel. 576 580 V. Merchants' Bank ...876, 877 V. Owens 400 Bank Commissioners v. New Hampshire Trust Co 323, 355 Bank Supervisors r. Clark 383 Bankart r. Bowers 321 Banking Assn. v. White Lead Co. 144 Banks r. Crossland 785 r. Harris Mfg. Co 181 v. Lee 860, 863 r. Poitiaux 141 Bannan v. Graeff 541 Banner v. Johnston 230 Bannemian v. White 608, 609 651, 668 Banta v. Palmer 690 PAGE. Barabasz v. Kabat 565 Barber v. Lamb 877 Barbour v. Barbour 444 Barclay r. Pearson 405, 501 Barclift v. Treece 874 Barcus v. Dorries 592 Barden v. Keverberg 91 V. Southerland 855 Barge i'. Haslam 172, 178 Barham v. Thanet 260 V. Turbeville 83 Barickman r. Kuykendall 787 Barker r. Barker 452, 461 V. Barth 284 V. Bradley 258 v. Bucklin 258 1-. Cox 666 r. Dinsmore 592, 718 t\ Furlong 56.') r. Hibbard 7!' V. Hodgson 514, 530 V. McClure 385 L\ Parker 498 V. Scudder 171 V. Valentine 158 Barkley v. Railroad Co 106 Barkworth r. Young. .. .552, 553, 793 Barlow v. Buckingham §54 V. Delaney 892 r. Myers 258 ■ V. Smith 199 Barnard r'. Backhaus 406, 407 V. Campbell 710, 717 V. Faber 656, 659, 920 V. Lee 627 Barnardo v. McHugh 463 Barnes v. Allison 175 V. Barnes 736 r. Black 794 V. Brown 377, 439, 505 r. Gibbs 877 r. McMullins 295 r. Morrison 470 r. Perrine 35 r. Reed 22 V. Shoemaker 591 V. Smith 409 r. Strong 461 V. Toye 77 r. Van Keuren 863 Barnet v. Gilson 880 Barnett, Ex parte 592 r. Franklin College 187 V. Howard 94, 97 r. Kinney 508 V. Pratt \ 257 V. Sweringen 52, 337 Barney r. Newcomb 25 Barnsdall v. Boley 856 Barnum v. Read 213 TABLE OF CASES. XXVll PAGE. ]Barr v. Logan 334 i;. New York, etc., R. Co. . . 723 Barrett V. Dean 35 V. Geisinger 217, 4G7 V. Hartley 751 V. Koella 707 V. McHugh 170 V. Thorndike 845 V. Weber 441 Barron r. Porter 283 V. Tucker 441 V. Vandvert 204 v. Willis 735, 736, 740, 742 768, 770 Barrow r. Isaacs 574 V. Ker 43 V. Richard 302 Barrow S. S. Co. v. Mexican Cent. Ry. Co 35, 43 Barry v. Capen 436, 493 \\ Coombe 180 v. Croskey 698 i\ Doremus 177 i". Hamliur^^-Bremen Ins. Co. 631 V. Harding 260 V. Kirkland 44:'. V. Merchants' Exchange Co. 140 144 r. Page 109, 1 14 r. Ransom 171 r. Schmidt 3SS Barth v. Graf 171 r. Iroquois Furnace Co . . . 50S Bartholomew v. Jackson 12 V. T^ech 387 V. Markwick 337 Bartholomew Co. Comnirs. v. Jameson 460 Bartlett v. Bailey 68 t'. Bartlett 610 V. Blaine 378 V. Holbrook 194 V. Smith 406, 409 V. Tuchin 334 V. Tucker 119 V. Wells 84 V. Wheeler 789 V. W^yman 204 V. Young 175 Bartley v. Conn 2.')8 Barton v. Benson 470 V. Gray 821, 824, 825, 826 V. Kane 605 r. London & N. W. Ry. Co. 29 V. Muir ! 398 V. ]Mulvane 490 V. Piggott 403 Barton Co. Commrs. v. Newell . . . 429 Barwick v. English Joint Stock Bank 700 Basford v. Pearson Bashaw's Adm. r. Wallace's Adni. Baskcomb r. Beckwith Basket v. Moss Bassett r. Bassett r. Bradley 261, r. Hughes 259, 274, V. Shoemaker Baston r. Clifford Batchelder v. Sargent V. White Bate V. Hooper Bateman v. Butler i\ Countess of Ross r. Faber V. Mid-Wales Ry. Co V. Pinder r. Robinson Bates, Ex parte r. Babcock V. Ball V. Hyman 101, r. Lancaster V. Moore V. Bandy V. Townley Bates County r. Winters Bates Machine Co. v. Norton Iron Works Bateson v. Gosling Bath Gas Light Co. r. Claffy. . 139, Bath, Earl of, and Montague's Case Batson r. Murrell 0. Newman Battersbee v. Farrington Batturs v. Sellers Batty r. Chester V. Snook Bauer v. Bauer r. Roth V. Samson Lodge Baum v. Baum 415, r. Birchall Baurman v. Binzen Bawden v. London, Edinburg and Glasgow Assur. Co Baxendale r. Bennett ■ V. Scale Baxley r. Linah Baxter v. Billings V. Bush - v. Camp 250, 259, 852, i\ Little V. Sherman Bav r. Shrader — — V. Williams 261, Bayard r. Lathy 17. McLane Bayler v. Commonwealth AGE. 8.55 864 668 439 not 262 276 387 345 891 848 581 170 92 97 146 777 503 174 104 102 502 177 215 877 135 528 384 142 766 776 405 794 182 412 630 744 584 449 444 886 49 658 587 601 877 543 83 874 295 115 865 273 25 452 459 XXYIU TABLE OF CASES. PAGE. Baylies v. Fettyplace 428 Bayliss v. Williams 737, 745 Bayly v. Garford 840 Bayne v. Wiggins . 182 Beach r. Endiess 844 V. First M. E. Church.. 42, 187 Beachey v. Brown 51G, 677 Beadles v. Bless 40G Beal r. Brown 786 r. McVicker 439 r. Minneapolis Co 341 r. Polhemus 377, 436, 437 Beall r. McGehee 688 V. Mann 734 Beals V. Beals 249, 252 . V. See 102 Beam v. Copeland 581 Beaman r. Russell 874 Bean v. Amsinck 378, 504 V. Atwater 324 r. Bean 880 r. Brookmire 378, 504 r. Heath 88 r. Miller 332 c. Morgan 91 Beanland v. Bradley 744 Beard i\ Beard 444 V. Kirk 106 r. Webb 92 Beardslee v. Morgner 257, 269 Beardsley r. Duntley 634, 791 V. Hotchkiss 66 Bearss r. Ford 630 Beary v. Haines 866 Beasley v. Webster 256 Beasly v. Texas, etc.. By. Co 437 Beath r. Chapoton 441 Beattie v. Lord Ebury 119, 688 Beattie Mfg. Co. v. Gerardi 238 Beatty r. Howe Lumber Co.. 332, 353 V. Western College ....187, 650 Beaty v. Grim 170 Beaubien Produce Co. v. Robert- son 40 Beauchamp, Earl r. Winn 564 Beaumont v. Dukes 919 V. Reeve 411, 412 Beaupre v. Telegraph Co 19 Beavan v. M'Donnell 102 Beaver v. Beaver 219 V. Fulp 211 Bebout V. Bodle 384 Bechervaise r. Lewis 386 Bechtel r. Cone 788 Bechuanaland Exploration Co. v. London Trading Bank. 145, 28s, 293 Beck V. Blue 631 V. Pierce 98 Beck's Case 45 Becker v. Howard 631 PAGE. Becker r. Keokuk Water Works. . 2.)4 Beckhu.son v. Kamblet 10*^ Beckwith r. Bank 286 Beckham v. Drake 109, 112, 114 V. Brackett 351 V. Frisbie 731 V. Talbott 182 Bedell r. Hering 585 r. Wilder 612 Bedford r. Bagshaw 704 Bedford, Duke of, v. Trustees of British Museum 306 Bedgood v. McLain 873 Bedinger v. Wharton 68 Beebe v. Insurance Co 659 V. Johnson 522, 524, 530 V. Real Estate Bank 295 Beecher v. Conradt 324 Beed r. Blandford 342 Beeler r. Clarke 778 r. Young 77, 79, 80, 81 Beemer r. Packard 258 Beer r. Landman 488, 492 Beere r. Beere 393 Beers r. Robinson 258 V. Spooner 240 Beeson v. Green 261 Beeston v. Beeston 499 Begbie v. Phosphate Sewage Co. . 498 Beggs V. State 64 Behl V. Schuett 730 Behler r. Weyburn 88 Behn r. Burness 651, 655 Behrens r. McKenzie 102 Belden v. Ham 801 V. Munger 444 Belding r. Frankland 679 V. Smvthe 505 r. Stat^ 557 Belfast Nat. Bank r. Harriman.. 866 Belknap r. Bender 238 V. Gleason 775 r. >iational Bank 866 V. Schild 112 Bell v. Balls 180 V. Bank 56 V. Banks 876 r. Bell 392 r. Bennett 98 V. Bruen 624 V. Campbell 747 V. Chapman 430 r. Eaton 677 r. Hewitt's Ex 176 r. Lamprev 725 r. I^-ggett' 380 i\ McConnell 388 r. Mahin 856, 8.59 r. Mendenhall 257, 267 V. Morrison 777 TABLE OF CASES. XXIX PAGE. Bell V. Moss 571 V. Oflutt 47, 330 V. Packard 886 I'. Eeid 426 f. Reynolds 112 c. Sappington 241 V. Thompson 664 Bellairs r. Bellairs 466 V. Tucker 692 Bellamy v. Debenham 667 Bellamy r. Sabine 744 Bellas V. Fagely 258, 259 Seller r. Block 109 Belleville Works v. Samuelson... 717 Bellevue Assn. v. Jeckel 661 Bellows r. Russell 470 V. Sowles 215 Belmont v. Coman 2G2 Belshaw i\ Bush 594. 841 Belt V. Ferguson 393 v. McLaughlin 261 Bement (;. La Dow 691, 715 V. National Harrow Co ... . 469 Bence v. .Shearman 283 Bender r. Fromberger 624 Bendix v. Avers 211 Benedict v. Beebee 174 r. Cowden 865 r. Hunt 272 Benedict i\ Lynch 628 • • V. Miner 856 V. Roome 747 Benge i>. Hiatt's Adm 249, 253 Benjamin v. Birmingham . . . 256, 261 V. Brvice 197 r. McConnel 865 V. Zell 174 Benecke r. Haebler 361, 366 r. Bennecke v. Insurance Co. 614 Bennett i\ Bates 275 V. Bennett 685 c. Covington 409 V. Dyer 791 ( Doe d. ) V. Hale 804 V. Ingoldsby 847 V. Judson 702 r. Littlefield 219 V. Mahler 177 V. Merchantville Building Assoc 238, 258 V. Morse 522 r. Rosenthal 258 V. Shaughnessy 332, 342 Bensick r. Thomas 389 Bensimer v. Fell 258 Bensinger v. Wren 382 Bensley v. Bignold 399, 911 Benson v. Cowell 343 V. Cutler 629 - f. Markoe 577, 641 PAGE. Benson v. Mole 812 v. Phipps 206 Bent V. Priest 391, 452 V. Underdown 719 Bentinck v. Franklin 452 Bentley v. Davis 878 r. Greer 69 V. Mackav 572, 639, 644, 769 r. Root 282 r. State 528, 530, 538 c. Vilmont 717 Benton r. Holland 778 Benton County Bank v. Boddicker. 404 Bentsen r. Taylor 655 Benwell r. Inns 478 Benyon v. Xcttlefold 412 Beram r. Kvuscal 495 Beran v. Tradesmen's Nat. Bank. 285 Bercich v. Marye 565 Berdoe v. Dawson 769 Bergen r. Frisbie 436 ■ V. Udall 768 Berger r. Ebey 639 Berk v. International Explosives Co 197 Berka r. Woodward 399 Berkly r. Cannon 100 Berkmej'er r. Kellerman 735, 745 Berkshire L. I. Co. v. Hutchings. 261 Berkson r. Heldman 697, 699 Berlin Works r. Perry 468 Bermudez Co. v. Crichfield 436 Bernard r. Dickins 346 r. Torrance 29 Bernard, etc.. Mfg. Co. ly. Packard. 892 Bernier v. Cabot 3Ifg. Co. . . . 178, 790 Bernshouse r. Abbott 114 Berrien v. McLane 453, 513 Berry v. American Ins. Co. . . 616, 689 ■ r. Bakeman 677 r. Berry 728, 729 r. Doreraus ; 2.38 V. Graddy 216, 785, 789 V. Henderson 911 V. Sewald 175 V. Whitney 689 Berryman r. Manker 862 ' l: Tru'^tees 437 Berthold i\ St. Louis Construction Co 332, 353 Berwick v. Oswald 836 Berwind r. Schultz 109, 116 Besant, Re 461, 463 V. Wood 415 Besse v. Dyer 23 Best V. Bauder 402 V. Stow 633 Bestor r. Hickev 69 • r. Wathen' 437 Beswick r. Swindells 555, 558 XXX TABLE or CASES. PAGE. Bethany v. Howard 2(j9 Bethel v. Salem Improvement Co. 352 Bethel 1 v. Bethell 688 V. Clark 571 Bettini r. Gye 325 Bettle V. Wilson 415 Betts f. Burch 632 V. Gibbons 495 r. Gunn 577 Beverley v. Lincoln Gas Co 163 Beverley's Case 98 Beveridge v. New York Elevated R. R. Co 250, 256 Beyer v. National Assoc 691 Beyerstedt r. Winona Mill Co. . . 197 Bej-mer v. Bonsall 116 Beynon v. Cook 756, 759, 762, 763 Bibb r. Freeman 216 V. Miller 498 Bick r. Overfelt 452 Bickel V. Sheets 486 Bickerton v. Burrell 117, 118, 123 Bicknall v. Waterman 607 Bidault V. Wales 679 Biddel v. Brizzolara 261, 274 Bidder v. Bridges 210, 212 Biddle v. Coryell 324 Bierbauer v. Wirth 441 Bierman r. City Mills Co 652 Biery r. Haines 861 ^ V. Steckel 415 Biest v. Ver Steeg Shoe Co. . . 176, 178 Biffin r. Bignell 730 Bigelow V. Benedict 408 •— — V. Bigelow 216 • V. Grannis 69 r. Raihvav Co 142 V. Stilphen 853 Biggers r. Owen 34 Biggerstaff v. Rowatt's Wharf 899 Biggs V. Barry 679 r. Fisk 63 V. Harris 596 Bigham v. Madison 610 Bigler v. Jack 631 V. Morgan 335 Bignall. etc., Mfg. Co. v. Pierce, etc., Mfg. Co 361 Bilgerrv v. Branch 430 Bill V. W. U. Telegraph Co 389 Billage v. Southee 737, 746 Billings r. O'Brien 439 Billingsley r. Clelland 215 V. Dempehvolf 170 Billington r. Cahill 178 v. Wagoner 833 Bindley V. Mulloney 418 Einford r. Adams 841 r. Bruso 584 1-. Bing V. Willey 443 PAGE. Bingham v. Bingham 570, 615 V. Browning 211, 813, 839 v. Scott 408 i: Wentworth 383 Birch V. Anthony 444 r. Steppler 88 Birchell v. Neaster 170 Bird r. Bird 850 V. Breedlove 434 v. Jacobus 466 r. Lanius 257, 260 V. Morrison 174 V. ilunroe 782 Bird's Trust 317 Bird Coal Co. r. Hume 391 Birdsall v. Russell 866 Birkmyr v. Darnell 172, 179 Birmingham Co. r. Elyton Co. . . . 689 Birmingham and District Land Co. r. Allday 305 Birmingham Ins. Co. v. Pulver. . . 448 Birnie l\ Main 775 Birrell r. Dryer 309, 315 Bisbee V. :\IcAllen 402 Biscoe V. Kennedv 893 Bish r. Beatty . ' 692 ' V. Johnson 135 Bishop V. Allen 584 V. American Preservers' Co. 468 i: Busse 204 V. Douglas 262 V. Eaton 22 v. Holcomb 281, 285 V. Honey 486 V. Insurance Co 640 r. Palmer 406, 483, 484 r. Small 691 . r. Stewart 258 Bissell r. Foss 290 . v. Heath 720 r. .Jaudon 778 r. Jeffersonville 137 r. Lewis 25 V. Railroad Co 144 Bissing v. Britton 171 Bitter r. Rathman 892 Bivins r. .Tarnigan 413, 735 Bixby V. Moore 10, 483 Blachford v. Preston 430 Black r. Canal Co 135 V. Cord 217 r. Railway Co 584 r. Securitv Mut. Assoc. . . . 402 v. White .' 778 V. Woodrow 349, 550 Blackburn r. Haslam 657 r. Mann 172, 178 r. Ormsby 832 V. Reillv 331, 332, 340 V. Smith 342, 715 TABLE OF CASES. XXXI PAGE. Blackburn v. Vigors 057 Blackie c. Clark G41, 735, 738, 74(5 Blacklock r. Dobie 380 Blacknall r. Parish 855 Blacksmith's Case, The 471 Blackstone v. Miller 852 Blackwell c. Webster 513 Blackwood v. London Chartered Bank of Australia 5G7 Blade v. Noland 844 Blades i: Free 42, 106 Blagborne v. Hunger 815, 826 Blain v. Pacific Exp. Co 14 Blaine v. Knapp 49 Blair v. Chicago & Alton Co 625 r. Insurance Co 383 r. Smith 175 V. T. L., etc., Co. v. Walker. 257 Blaisdell r. Ahern 451 Blake c. Cornwell 791 r. Hamburg-Bremen F. I. Co 39 V. Lobb's Estate 541 r. McClung 125 r. Niles 557 V. Pine Mountain Co 310 V. Railroad Co 389 r. Voight 176 r. White 833 Blake's Case 826, 835, 878 Blake Co. r. Insurance Co 640 Blakeley v. Benneke 122 Blakely i: Sousa 376, 543 Blakeman r. Blakeman 576 Blakeney r. Goode 176 Blakeston r. Wilson 880 Blakey r. Johnson 853, 868 Blackistone r. Bank 49 Blalock r. Phillips 707 Blanchard r. Fearing 631 V. Jones 390 r. Weeks 176 Blanding r. Sargent 176, 789 Blaney t\ Hoke 48 'v. Rogers 612 Blank r. Nohl 444 Blanton r. Commonwealth 860 1 i\ Knox 789 Blasdel r. Fowle 380, 491 Blass V. Terry 174, 262 Blattmacher V. Saal 120, 495 Bleakley r. White 842 Bledsoe r. Thompson 501 Blenn i: Lyford 295 Bless r. Jenkins 177, 789 Blewett V. Bash 874 Bliss r. Kaweah Canal, etc., Co. 160 r. Lawrence 439 V. Matteson 378 17, Mclntyre 848, 850 PAGE Bliss r. Plummer's Ex 259 Block V. Darling 502 Blodgett v. Hobert 634 Blood (7. Crew Levick Co, . . 262, 269, 272 r. Enos 550, 815 r. La Serena Land Co 389 Bloodgood r. Bruen 778 Bloom r. Richards 399 Bloomer v. Bernstein 323, 340 r. Nolan 68, G9 c. Spittle 600, 644 Blooming C4rove Ins. Co. v. Mc- Enerney . 658 Blossom r. Dodd 53 r. Railroad Co 15 V. Shotter 629 Blount V. Harvey 304 r. Robeson 387 V. Spratt 102 Bloxam v. Met. Ry. Co 457, 897 Bluck r. Gompertz 855 Blue r. Capital Xat. Bank 377 Elumenberg r. Adams 91 Blumenthal v. Goodall 34 v. Shaw 565 Bly V. Bank 492 Blyer r. Monholland 262 Blvmire r. Boistle 258, 259 Bl'yth & Co.'s Case 798 Boaler r. Mayor 876 Boals V. Nixon 256 Board r. Branham 382 r. Duparquet 285 i: Gray 856, 857, 860 r. Greenleaf 801 Board of Education v. Greens- baum 161 V. Townsend 536, 552 Board of ^Marion Co. r, Shipley. . . 26 Board of Supervisors v. Randolph. 137 Boardman v. Keeler 558 V. Spooner ISO — - — r. Thompson 451 r. Ward 11 Boast V. Firth 544, 546 Bobbett V. Pinkett 292 Bobbs-Merrill Co. v. Snellenburg. 298 Bobo r. Richmond 175 Bocchino r. Cook 731 Boddy r. Henry 683 Bodine i'. Kileen SS r. Morgan 729 Boeckler v. IMcGowan 890 Boffinger r. Tuyes 837 Bogard r. Turner 787 Bogardus i\ N. Y. Life Ins Co. . . 340 r. Young 258 Boffart, Re 776 — — r, Phillips 272 TABLE OF CASES. PAGE. Bogarth v. Breedlove 860 Bogcrs V. Pacific Laundry Co 17G Bogie V. Nolan 7.3.5 Bogtc L\ Gassert 311 Bohanan v. Pope 257, 271 Boliannon v. Pace 78G Bohn r. Lowry 802 Bohn Mfg. Co. t: Lewis 187 Boigneres v. Boulon 411 Boisaubin v. Boisaubin 7,34 Boisot V. Chandler 261 Boisseau r. Fuller 40 Bokcmper v. Hazen 102 Boland r. O'Xeil 41.'3 Bold V. Hutchinson 643 Bolles v. Crescent Drug & Chemi- cal Co 548 Boll man v. Loomis 390 Bolman v. Overall 466, 467 Bolton r. Bishop of Carlisle. . 84.5, 847 r. Lambert 47, 107 — ■ — r. iladden 19.5 V. Salmon 383 Bolton, Duke of v. Williams. 887, 89.5 Bolton Co. V. Stoker 708 Bomeisler v. Forster 833 Bomier v. Caldwell 627 Bompart v. Roderman 175 Bonar v. Maedonald 382 Bond v. Bunting 844 r. Conway 89 ■■ V. Dolby ". 261 V. Jackson 827 V. Heirs of, c. Smith 776 Bone V. Ekless 501 Boney r. Hollingsworth 745 Bonhote r. Henderson 641, 644 Bonner r. American, etc., Mfg. Co. 226 r. a. W. Ry. Co 138 — ■ — • r. Tottenham Society.. 244, 260 Bonnett v. Bonnett 462 Bonnewpll r. .Jenkins 47 Bonnot Co. r. Newman 584 Bonta r. Gridley 377 Boody r. McKenny 68 Boogher r. Life Assn. of America. 130 Booker r. Stivender 845, 857 — ■ — V. Wingo 488 Bool r. :\lix 63, 67 Boone r. Chiles 568 v. Eyre 327 Boord V. Boord 216 Booth r. Bank of England 400 r. Conn. IMut. Life Ins. Co. 259 260 '". Cottingham 99 — ■ — r. Eighmie i/0 — — r. Hoskins 774 r. Powers 870 V. Robinson 631 PAGE. Booth v. Spuyten Duyvil R. M. Co 523, 528, 5.39 Boothby r. Plaisted 886 V. Scales 608 Boots v. Steinberg 448 Borcherling r. Katz no Borden r. Boardman 257, 259 Borel V. Mead 217 Borell V. Dann 754 Borley r. McDonald 573 Born V. Schrenkeiser 639 Borrekins v. Bevan . 653 Borries r. Imperial Ottoman bank. 115 Borst V. Corey 775, 794 — ■ — V. Spelman 89 Boruff r. Hudson 257 Bosanquet v. Wvav 810 Boschen's Ex. r. Jurgen's Ex 610 Boslev V. National Machine Co . . . 675 Bossliardt Co. r. Crescent Oil Co. 27 Bostick r. Haynie 700 Bostock v. X. Staffordshire Ry. Co ".. 138 Boston, etc., Co. v. Ansell 352 Boston Hat Manufactory i\ Mes- singer 382 Boston Ice Co. v. Potter 591 Boston, etc., R. Corp. v. Nashua, etc., R. Cor 878 Boston Rubber Co. v. Peerless Wringer Co 839 Boston Safe Deposit Co. v. Salem Water Co 254 Bostwick r. Beach 666 v. Leach 173, 174 V. Mutual Ins. Co 710, 713 V. Railroad Co 54 r. Van Voorhis 662 Botsford V. Morehouse 850 Bottelle V. Northwestern Co 226 Bouchell r. Clary 79, 81 Boulton r. -Jones 591 Bourn v. Davis 690 Bourne r. Shapleigh 46 Bouscaren r. Brown 299 Boussmaker. Er parte 428 Bnutelle r. Carpenter 864 Bowdell V. Parsons 360, 305 Bowditch V. New England Ins. Co. 403 404 Bowdoin College i\ Merritt 736 Bowen r. Bailev 324 r. Buck . ' 442 V. Fenn 692 r. Hall 225 r. Hart 44 V. Kurtz 261 Bower r. Cooper 300 V. Webber 409 Bowers, Re 741 TABLE OF CASES. XXXIU PAGE. Bowers v. Bowers 438 V. Briggs 8G2, 863 r. Hutchinson 415 17. Jewell 854, 861 r. Whitney 180 V. Worth 605 Bowery Bank v. Wilson 439 Bowes V. Shand 314, 326, 629 Bowker r. Bradford 893 Bowlin V. Silver 625 Bowling V. Flood 384 Bowman v. Carithers 693 L\ CoflFroth 434 I'. Hiller 729 r. McClenahan 684 v. Mitcliell 870 V. Officer 387 i\ Patrick 32 i: Wright 818, 826 Bowser r. Cole 850, 853. 861 V. Patrick 275, 452 V. Randell 862, 863 Bovce i\ Edwards 25 — v. McCullough 822 V. Tabb 421, 514 Boyd, Ex parte 95 V. Boyd 734 r. Brotherson 872 r. De La Montagnie. . .505, 735 768 r. Graves 175 r. Hallowell 52 r. Hanson 409 r. Hawkins 770 V. Kennedv 145 c. McConnell 853 V. McCullough 324 Boyden r. Boyden 69 Boyer f. Berryman 101 f. Fulmer 541 V. Soules 171 Boykin r. Campbell 595 Bovle V. Adams 470 — — 1-. Albert Lea 132 V. Lybrand 299 Boynton i\ Ball 876 V. Frye 879 V. Hubbard 464 Boyse v. Rossborough. . .562, 733, 736 Bozeman r. Browning 66, 68 Brace v. Calder 350, 544 Bracewell r. Williams 215 Bracken Co. v. Daum 860, 871 Brackett i\ Griswold 693, 704 V. Hovt 399 Bradbury v. White 633 Braddick v. Thompson 826 Bradford i\ Bank 633 r. Jenkins 421, 514 V. Manly d08 iii PAGE. Bradford V. Metcalf 226 V. Romnev 311 v. Roulston 200 V. S^^nondson G14 r. Williams 321 Bradlaugh v. Xewdegate. . . .451, 461 Bradley r. Ballard 142 v. Bertoumieux 340 V. Bradley 700 r. Dells Lumber Co 873 L-. Glenmary Co 210 r. Gregory 832 V. Harter 823 r. King 332 r. l^vy 346 r. Obear 710 r. Pratt 80, 81 - c. Sadler 792 i: Seaboard Bank 699 Bradshaw v. Bradshaw 379 c. Davis 832 r. Lanes, and Yorks. Ry. Co 223 v. Yates 721, 745 Bradstreet i: Baer 892 Bradv r. Berwind-White Co.. 865, 873 ' r. Finn 694, 695 r. Horvath 498 r. Insurance Co 529 r. Nally 112 Bragg V. Davidson 650, 821 r. Israel 200 V. Stanner 474 Brahmaputra Tea Co. r. Scarth.. 481 Brainard v. Arnold 639 Braithwaite r. Skinner 244, 252 Braley r*. Powers 690 Brail," Re 61 Bramah r. Roberts 145 Bramble i\ Ward 384 Bram])ton v. Beddoes 480 Branch iK Haas 431 Branch r. Palmer 332, 408 Brand r. Johnrowe 873 Brandao r. Barnett 291 Brandon r. Brown 68 r. Nesbitt 430 Branliam v. Stallings 496 Branson v. Turner 608 Brant v. Ehlen 720 Brantley r. Thomas 652 r."Wolf 68. 82 Brassel v. Troxel 323, 355 Brasspll v. McLemore 629 Braswell r. Insurance Co 106 Brattleboro Bank v. Trustees. . . . 137 Bratton r. Massey . . . < 416 Brauer r. Shaw '. 31, 33, 39 Braun v. Wisconsin Rendering Co. 577 Braunn v. Keally 486 XXXIV TABLE OF CASES. Brewer PAGE. Bray v. Kettel 100 Brayshaw v. Katon 77 Brazee v. Schofield 175 Brcck V. Blanchard 730 Breckenridge ('. Lewis 585, 867 V. Crocker 182 Brecknock School District v. Frankheuser 14 Breed c. Judd 68 Brenner r. Luth 257, 267, 277 Brentnall r. Marshall 324 Brereton v. Hull 725 Breslin v. Brown 470 Breton v. Woollven 219 Brett, Ex parte 679 Brett v. Marston 854 Brewer r. Arantz 693 V. Broadwood 354 V. Brown 667 Dyer 257, 269, 271 Hieronymus 467 Horst-Lachman Co 182 i: Marshall 304 Maurer 262, 2G5, 274 Lumber Co. v. Boston, etc., R. Co 571 Brewing Assoc. i\ Nipp 197 Brewster v. Hatch 676 V. Wooster 344 Bre^vton v. Glass 310 Brey v. Hagan 872 Briee, Re 86 Brick r. Gannar 178 Brick Co. v. Pond 541 Brick Presb. Church c. New York. 514 524, 526 Bricker v. Bricker 024 ;;. Hughes 173 Brickley r. Edwards 703 Bridge r. Connecticut Ins. Co. 282, 294 Bridge Co. r. Frankfort 161 Bridgeford v. Adams 708 Bridgeport Bank r. New York, etc., R. Co 856 Bridger r. Goldsmith 289 r. Savage 499 Bridgers v. Hutchins 844 Bridges r. Stevens 779 v. Winters 860 Bridgewater Iron Co. r. Insurance Co .599, 607, 612 Bridgford v. Crocker 336 Bridgman v. Green 745, 766 Briggs, Ex parte 700 Briggs V. Boyd 731 V. Ewert 585 r. Partridge 110. 112 r. Ryan . . 97 r. United States 427 V. Walker 427 Brigham v. Fayerweather 101 PAGE. Brigham v. Herrick 204, 8L> V. Lipman, etc., Co 130 V. Newton 736, 741 Bright V. Legerton 721 c. Taylor 550 Brightman v. Bates 411 V. Hicks 650 Brindle r. Mcllvaine 282 Brinkley v. BrinKley . . 394, 395, 793 Brinley v. Whiting 452 Brisban r. Boyd 45 Briscoe r. Ashby 569 Bristol r. Scranton 391 Bristol Milling & Mfg. Co. v. Pro- basco 125 Briston v. Lane 256 Bristow V. Secqueville 434 Britain r. Rossiter . . . 782, 790, 791 British and American Telegraph Co. V. Colson 884, 885 British Linen Co. v. Drummond . . 780 British Waggon Co. v. Lea & Co . . 223 Brittain v. McCay 173 Britton r. Bishop 295 V. Dierker 861, 871 i: Phillips 39 Britzell r. Fryberger 257 Broad v. Jollyfe 474 ?•. Munton 671 Broadwater r. Darne 101 Broadwell r. Getman 177, 780 Brock i\ Hidy 627 V. Odell 577 Brodhead r. Reinbold 324, 354 Brodrib r. Brodrib 101 Brodt r. Hickman 395 Brogden v. Metrop. Ry. Co. 10, 31 36, 47 Brokaw v. Duffy 335 r. Railroad Co 130 Bromley r. Smith 763 Bronnenljerg v. Coburn 205 Bronson r. Coffin 300, 301 Bronson Electric Co. v. Rheubot- tom 717 Brook V. Brook 39(> r. Hook 443 Brookbank v. Brookbank 847 Brooke r. Logan 461 Brookfield Bank v. Kimble 786 Brooklyn Bank v. De Grauw 832 Brookman r. Kurzman 623 Brookman's Trust, Re 466 Brooks V. Allen 853 V. Ball 193 r. Berryhill 729 r. Cooper 470 r. Curtis 791 r. :\fnrtin 500. 742 r. ]\Iatthews 583, 584 r. Meekin 39.> TABLE OF CASES. XXXV rAGE. Brooks V. Merchants' Bank 200 V. Scott's Exec 340 V. Wichita 633 Brophy v. Marble 205 Brosnan r. McKee l"t Brotherhood's Case 901 Brothers r. Brothers 387 Brotherton r. Reynolds 694 Brou V. Becnel 877 Broiighton v. Fuller 857, 859 V. Hutt 576, 616 V. Manchester Waterworks Co 144 V. West 862 Broun v. Kennedy 643, 745 Brower c. Fass 488 V. Goodyer 679 Brower Lumber Co. v. Miller .... 254 Brown v. Adams 171 V. Ambler 25 V. Ames 654 r. Austin 112 V. Bank 110, 142 V. Beauchamp 450 V. Bell 789 r. Bisjne 452 r. Bowen 791 ' i\ Bradlee 23 V. Brine 445 V. Bronson 395 r. Brown . ... 170, 377, 791 V. Browning 509 V. Bulkley 730 ■ r. Burbank 735, 745 r. Burns 776 r. Bvers 145 r. C." C. & R. Gravel Road Co. 575 . r. Colquitt 855 r. Cranberry Co 108 V. Curran 258 i\ Dale 132 r. Delano 514 I'. Dillehantv 557 < V. Duncan / 402, 432 v. Durham 82 r. Eaton 174 V. Equitable Soc 285, 294 V. Everett, etc., Co. ... 378, 504 V. Express Co 54 . r. First Bank. 434, 436, 438, 445 r. Foster 51 V. Gardner 104, 427 V. German- American Title & Trust Co 258 V. Ginn 451, 452 r. Godfrey 205 < V. Griswold 174 V. Guarantee Trust Co 330 • V. Hall 761 V. Hartford Ins. Co 283 V. Johnson 803 PAGE. Brown r. Killingsworth 88 « r. Kinsey 411, 413 r. Knapp 253 r. Lamphear 600 r. Latham 199, 778 ;-. Leavitt 284, 879 r. ilcCreight 442 . r. McCune 82 r. McGill 888 L\ Markland 258 V. Mavor of London . .. 526, 557 r. Mercantile Co 738, 739 r. Minis 285 V. :\Iize . 879 i\ Montgomery 654 r. Muller 350, 360, 369 r. Xeallev 378, 380 r. N. Y. Central R. R. Co. 46, 47 r. Xorman 713 i\ O'Brien 258 r. Odill... 361, 365, 444, 465, 517 r. Parker 110, 781 r. Railroad Co 53 r. Railway Co 298, 301 r. Ralston 344 r. Ravdings 786 r. Reed 865 V. Reiman 116 r. Rice 27 r. Rounsavell 4G9 r. Royal Ins. Co. . . 528, 529, 553 r. St," Paul, etc., Ry. Co. 345, 346 r. Savage 847 V. Savings Union 27 r. Smith 693 r. Stillman 265 r. Strait 256 V. Telegraph Co 116 r. Tillinghast 575 r. Timmanj' 502 r. Tuttle 411 V. Whipple 179, 182 r. Winnisimmet Co 140 r. Witter 343 Brown & Haywood Co. v. Ligon . . . 250 Browne r. Carr 384 V. McDonald 42 r. Patterson 629 r. United States 539 r. West 452 Brownell r. Briggs 395 r. Winnie 857. 858, 863 Brown field r. .Johnson 605 Brownfiekrs Ex. r. Brownfield... 822 Browning r. Bancroft 708 r. be Ford 708 r. Gosnoll 856, 857. 863 r. Magill 567 r. Parker 786 V. Wright 624, 625 XXXV 1 TABLE OF CASES. PAGE. Brownlee v. Ijove 210 Brownlie v. Campbell.. 649, 699, 921 Brown son r. Weeks 200 Bruce v. Bishop 3 r. Hastings 174 r. Lee 380 r. Osgood 174 Bruff r. Thompson 890 Brulil r. Coleman 592 Brumby v. Smith 538 Brumm.itt r. McGuire 575 Brummond i\ Krause 744 Brundige V. Blair 640 Bruner v. ^Yheaton 43, 45, 890 Brunswick v. Dunning 127 v. Valleau 486 Brunswick Co. r. U. S. Gas Fuel Co 142 Brunswick, etc., Ry. Co. v. Clem . . 834 Brunswick Terminal Co. r. Na- tional Bank 780 Brunton's Claim 289 Brusli r. Sweet 4.)6 Brutt v. Picard 854 Bryan (Doe d.) v. Bancks 01 V. Brazil lOS r. Hunt 821 r. McXaugliten 387 r. Reynolds 436 r. Spruill 725 Bryant v. Bank 855, 857 r. Booze 39 V. Crosby 173 r. Flight 50 v. Herbert 152 c. Isburgh 608 V. Peck 488 V. Vix 292 r. Wells 112 V. Whitcher 567 Bryant's Pond Co. v. Felt .. 27, 187 Bryant and Barningham's Con- tract, Re 597 Bryce v. Insurance Co 639 Bryson r. Haley 486 — — I'. McShane 467 Bubb V. Yelverton 913 Buchanan f. Cleveland Oil Co. .. 112 r. Curry 429 V. Griggs 63 r. Lavne 541 V. Tilden 249, 251, 253 Buchner v. Ruth 415 Buck V. Albee 499 V. Bank 436, 441 r. Coward 468 r. Pickwell 173. 180. 784 Buckingham r. Ludlum 789 Buckland r. Buckland 95 r. Rice 419 Bucklen v. HufT 384 PAGE. Buckley v. Bank 292 V. Buckley 177, 789 r. Gray 704 V. Humason 402 V. Meidroth 51 Buckmaster v. Consumers' Ice Co. 49 Buckner v. Street 420, 775 Buel V. Miller 822 Buell r. Buckingham 387 Buel V. Chapin 40 Buena Vista Co. v. Billmyer .... 689 Buerger v. Boyd 532 Buffalo, etc., Co. v. Bellevue, etc., Co 535 V. Medina Gas Co 125 Buffalo Cement Co. v. McXaugh- ton 249, 254 Buff'alo Oil Co. v. Standard Oil Co 130 Buff'alo Press Club v. Greene .... 440 Buff"alow r. Buff'alow ...74.5, 750, 768 Buford V. Adair 91 Bulord r. Speed 430 Bugg r. Shoe Co 679 BuGfhm.in c. Bank 679 Buhl r. Stephens '..176, 177, 784 Bulfield V. National Supply Co. . . 114 Bulger i\ Roche 780 V. Ross 736 Bulkley v. Landon 199 V. Morgan 708 - r. Wilford 391 Bull V. Bull 839 r. Griswold 173 r. Harragan 402 V. McCrea 176 i: Sink 282 V. Titsworth 272 Bullard v. Smith 408, 786 V. Northern Pac. Ry. Co. . . 514 Bullen V. Milwaukee Trading Co. 160 Bullion Bank v. Hegler 778 Bullock r. Adams Exr 628 V. Sprowls 68, 873 Bult r. Morrel 145 Bulteel r. Pluramer 466 Bui winkle v. Cramer 108 Bumps V. Taggart 798 Bumpus r. Bumpus 49 Buncombe T. Co. v. McCarson ... 161 Bundv V. Coc-ke 892 Bunn' r. Postell 101 V. Schnellbacher 691 r. Winthrop 411 Bunnell r. Carter 264 Bunse v. Agee 640 Buntain v. Curtis 879 Eurbank r. Dennis 389, 676 v. Gould 242, 257, 268 V. Pillsl)ury 301, 302 TABLE OF CASES. xxxvu PAGE. ^Burch V. Pope 854 r.urchell, Re 384 V. Clark 317 r>urchinell v. Hirsch 670 Burdett i'. Williams 82 Burge V. Ashley and Smith 501 V. Burge 231 V. Cedar Rapids, etc., R. R. Co 343 Burgess v. Blake 848 V. Denison Mfg. Co 829 V. Eve 385 Burgess's Case 720 Burgess Fibre Co. v. Broomfield.. 197 Burghart v. Hall 78 Burgin v. Burgin 566 I5urgoon r. Jolinston 633 Burgwiu V. Bishop 873 Burkard v. Crouch 791 Burke v. Allen 100, 103 • r. Lew 721 r. Pur'ifov 528 V. Shaver 361, 365, 411 • v. S. E. Rv. Co 54 ■ i: Tavlor ". .I!t5 ■ V. Wells Fargo 14, 23 Burkhalter v. Jones 606 Burkhardt r. Georgia School Township 525 Burkholder r. Beetem's Adm 49.") r. Lapp's Ex 861 Burkholder's Appeal 92, 231 Burkholder 's Ex. v. Plank 217 Burley v. Russell 82 Burlingame i. Brewster 864 Burlington Co. r. Evans Co 587 Burn v. Carvalho 281 Burnard v. Haggis 83 Burnes r. Scott 452 V. Simpson 157 Burnett v. Hawpe's Ex 889, 891 V. McCluey 8.50, 861 Burney, Heirs of r. Ludeling. 377, 437 Burney r. Savannah Grocerv Co . . 893 Burnham r. Aver.. . 859, 864, 866, 873 V. Gosneil 862 r Heselton 736, 741 V. Railroad Co 53 Burns v. Fidelitv Real Estate Co.. 822 823 V. Lynde 855 Burnside r. Wayman 855 Burr V. Beers .* 261, 262 V. Boyer 380 Burrell, Ex parte 379, 689 Burritt v. Insurance Co 659 Burroughes r. Bayne 154 Burroughs r. Hunt 501 V. Pacific Gumo Co... 585, 694 Burrow r. Scammell 668 Burrows v. Klunk 868 PAGE. Bursinger r. Bank of Watertown.. 100 Burson v. Huntington 587, 868 Burt r. Bowles 688, 689 r. Mason 083 r. Union Central Ins. Co... 376 Burtis r. Thompson 361, 365 Burton v. American Ins. Co. . 852, 873 874 r. Dupree 487 r. Gage 281 V. Great Northern Ry. Co. . . 197 r. Larkin 277 r. Perry 452 V. Shotwell 27 • r. Sturgeon 93 Burton's Appeal 294 Burton Lumber Co. v. Wilder. . . . 592 Burwell r. Orr 866, 867 Burv V. Hartman 284 Busbv r. Littlefield 634 Buse'r. Page 631 Bush r. Breinig 101 r. Cole 109 r. Koll 51 r. Lathrop 281 r. Linthicum 63 i: Rawlins 204 V. Wick 05 Busjahn r. McLean 854 Bussnian v. Ganster 532, 533 Bute, Marquis of f. Thompson... 541 Butler V. Butler 98, 393, 395, 550 i\ Duncan 757, 761 r. Eschleman 677 • r. Greene 878 - — r. Haskell 770 r. Kaulback , 108 r. Kidder 531 i\ Lee 789 r. Legro 451, 452 V. Moses 606 V. Prentiss 697, 713 r. Shehan 176 V. Winona ^Mill Co 50 Butler and Baker's Case 56 Butterfield r. Bvron 528, 537 V. Hartshorn 240 ■ l\ McXamara 577 Butters v. Haiighwout 717 Buttigieg r. Booker 834 Button r. Hoffman 125 r. Rathbone 717 Buxton V. Hamblen 402 r. Jones 693 r. Rust 180 Buzzard r. Houston 726 Bwlch-y-Plwm Lead Jlining Co. v. Ba\Ties 710 Bvars r. Doore's Admr 110 Byars v. Stubbs 683 Bvassee r. Reese 173 xxxvm TABLE OF CASES. TAGE. Byers v. Chapin 608 Byington v. Simpson 108 Byrd r. Hughes 390 Bvrd V. Rautman 690 . — r. Wells 77G ; Byrne V. Schuyler 135 V. Van Tienhoven 31 | C. C. F. Jewett Pub. Co. v. Butler. . . 355, 495, Caballero v. Henty Cabe V. Jameson Cable V. Foley V. United States Ins. Co. . . Cabot V. Christie V. Haskins Cadman v. Peter Cadwallader v. West 735, 746, Cady V. Straus V Walker Cagwin v. Town of Hancock .... Cahen v. Piatt Cahill r. Bigolow r. Cahill Cain r. ^McGuire, etc., r. Spann V. State Cair.es v. Smith 359, Caird v. Moss Cake i: Peet Caldecott, Ex parte 443, Calder r. Dobell 105, 107, Caldwell v. Caldwell 387, r Depew V. Hardmg V. Henry V. Parker l\ Shepherd V. Steamboat Co r. Wentworth Caldwell's case Caledonian Ins. Co. v. Gilmour . . Calhoun v. Calhoun California Fig Syrup Co. v. Put- nam Calkins v. Falk Call V. Calef V. Hagar Callahan v. Ackley Callender v. Edn.ison 269, Calliope Min. Co. v. Herzinger . . Calloway r. Snapp Calloway's Admr. v. Saunders . . Calverley r. Williams Calvert r. Carter 1-. Idaho Stage Co Calvo V. Davies 264, Camberwell and S. London Build- ing Society v. Holloway 323 596 670 836 728 658 699 697 241 631 7.50 768 27 879 137 332 786 93 173 295 557 365 644 636 498 108 390 633 498 695 865 452 130 402 558 448 421 419 179 460 879 199 270 821 384 786 600 880 161 383 667 PAGE. Cambio.so r. Maffitt 432, 500 Cambridge, Mayor of v. Dennis . . 382 Cambridge Bank r. Hyde 864 Camden Iron Works v. Fox .... 62D Cameron v. Estabrooks 584 r. Little 284 i: White 349, 522 Cameron and Wells, Re 231 Camp v. Barker 550 Cir.iip Mfg. Co. r. Parker .. . 627, 62S Campanari v. Woodburn 42 Campbell, Ex parte 613 Campbell r. Baldwin 778 V. Campbell 443 r. Christie 852 r. Dearborn 631 r. Findley 258 V. Fleming 709 r. French 914 r. Holt 774, 781 r. Hurd 834 i\ Insurance Co 658 r. Lacock 258, 259, 266 Lambert 197 McLeod 332 Maple's Adm 774, 775 Mayhugh 876 Patterson 257 Richardson 406 Segars 399 Smith 261 Stakes 8.3 Thomas 175 Campbell's Case 898, 901 Campbell's Est 821 Campbell Printing Press Co. r. Marsh 339, 342, 343 V. Thorp 51 Campion r. Whitney 383 Canada V. Canada 550 Canal Co. v. Racecourse Co 50 V. Ray 827 Canal and Dock Co. v. Russell 622 Canda v. Wick 364 Canedv v. Marcy 577, 63S Canham v. Barry 523, 680 . V. Piano Mfg. Co 60S Cannam v. Farmer 87 Carman r. Bryce 487 Canning V. Farquhar .... 19, 20, 47 Cannon r. Alsbury 65 i\ Hunt 528 Cannon Rivers Assoc, r. Rogers . 82!) Canon r. Grisby 85(> Canterbury v. Sparta 40 Canton In'st. r. Murphy 624 Cape Ann Bank v. Burns . . . 866, 872 Capital Bank r. Armstrong 854 Capital Ins. Co. r. Watson 661 Caples r. Steel 683 Caplice r. Kellev 751 Cappell r. Hall' 427 • TABLE OF CASES. XXXIX I'AGE. Capuro V. Insurance Co 7 2.') Cardinal v. Hadley 010 Carew v. Ruthtrford 731 Carew's Estate, Re, 470 Carey v. Burrus 892 V. Dyer 217 r. Hulett 158 Cargo ex Argos 398 Cargill V. Bower 702 V. Corby 13(J Carhart's Appeal 218 Carington, Lord v. Wycombe By. Co. '. 138 Carl r. Biggs 207 Carleton v. Lombard G52 V. Whitcher 438, 483 V. Woods 483 Carley v. Fox 260 Carlill r. Carbouc Smoke Ball Co. 13 19, 21, 23, 36 Carlisle r. People's Bank 801 Carlson v. Presbyterian Board . . 533 Carlton v. Western, etc., R Co. . . 204 Carmarthen, flavor of r. Lewis . . 100 Carmichael v. Carmichael 407 V. State 158 r. Vandebur 095 Carmody r. Powers 121 Carnagv v. Woodcock 028 Carnahan r. Tousey 201, 204. 274 Carnegie v. Morrison 257 Carney v. Mosaer 170 v. Newberry 345, 340 V. Plimmer 407 Carnig r. Carr 170 Carnochan v. Christie 879 Carolina Assoc, v. Black 82 Carpenter r. Bank 292 v. Carpenter 07, 08, 82 r. Carpenter's Ex'rs 88 V. Chicago, etc., Rv. Co. ... 832 V. Fisher \ 388 r. Gallowav 823 r. Hatch .". 734 V. Hogan 388 r. Longan 292, 299 V. Osborn 415 v. Rodgers 101, 103 v. Snelling 79S V. Soule 813 V. State 774 V. Taylor 204 V. Wright 095 Carr v. Carr 631 17. Cloiigh 07 V. Doolev 173 r. Duvai 29 V. Jackson Ill, 124 V. Leavitt 174 r. Lynch 170 V. McCarthy 176 PAGE. Carr v. National Bank 701 /;. \\'augh 284 V. Welch 804 Carrier c. Sears 103 Carrington r. Roots 783 Carris c. Carris 685 Carrol v. Blencow 91 r. Forsyth 778 r. Girard Ins. Co 448 Carrothers r. Russell 438 Carson v. Allen 346 V. Browder 173 r. Carter 880 i\ Dunham 427 V. Murray 414, 415 Carstarphen r. Holt 175 Oarstens r. McDonald 361 Carter v. Beckwith 99 r. Black 842 r. Brown 789 r. Calvert 880 r. Carter 415 r. Dixon 734 V. Duncan 383 ■ r. Howe Machine Co 130 V. Insurance Co 279 r. ^McLaren 505 V. Producers' Oil Co 135 r. Tice 736 r. Wormald 832 r. Zenblin 820 Carthage Bank v. Butterbaugh . . 443 Cartmell v. Newton 30, 43 Cartnev V. Tvrer 780 Cartwright /•'. Cartwright 41S Cartwright r. Hateley 590 Carville V. Crane 172 Cary v. Greenman 008 Cary r. Hess 378 Casborne v. Bursham 740 Case r. Barber 829 r. Gerrish 378 r. Smith 445 Case Co. r. Smith 181 Case Works v. Ross 717 Ca.sey t*. Casey 743 Ca.sh r. Clark' 180, 182 Cashen v. Berlin School Dist. . . . 552 Cashman v. Root 408 Cason V. Grant County Bank 807 863 Casoni v. Jerome 853, 860 Caspari v. First Germ. Church of New Jerusalem 746 Cass County r. American Bank . 874 Cass County Bank r. Brickner . . 441 Cassell V. Dows 25 Casserleigh r. Wood 445, 451 Cassiday v. McKenzie 106 Cassidy v. St. Germain 798 Castle V. Wilkinson 666 xl TABLE OF CASES. PAGE. Caswell V. Black River Mfg. Co. . ;U(i r. Hunloii 697 r. Parker 82 V. Putnam 003 Cate r. Blodgett 673 Cathcart v. Robinson 753 Catlett 1-. Dougherty 822 Catlin r. Haddox 69 i\ Henton 441 Catlin Coal Co. r. Lloyd 874 Catling V. King 179 Cato r. Thompson 311 Caton V. Caton 791, 792 V. Stewart 434 Catt v. Tourle 478 Catts V. Phalen 4W Caudell v. Shaw 92 Caulkins v. Fry 100. 102 V. Whisler "iSCi Cavanaugh r. Jackson 17o Cavendish v. Geaves 280, 287 Caylor v. Roe 172 Cecil V. Henderson 779 Center r. McQuesten . . 170, 240, 245 Central, etc., R. Co. r. Cheatham. 23 Central Rv. Co. of Venezuela v. Kisch . \ 075, 094, 723 Central Salt Co. r. Guthrie . 425, 468 Central Shade RoHer Co. v. Cush- man 469 Central Transportation Co. l\ Pullman Co 142, 143, 147 Centra i Trust Co. r. Eerwina- White Co 256, 270 v. East Tenn. Land Co. ... 389 r. Railroad Co 573 r. Respass 500 v. West India Co 285 Cesar v. Kovmtz 073 Chabot v. Winter Park Co 028 Chadwick v. Eastman 800 Chadwick r. Knox 434 r. Manninir 910 Chaires v. Brady 749 Chalfant v. Payton 405 Challis's Case 602 Chalmers, Ex parte, 323 ('. Tnrnipseed 875 Chamberlain v. Beller 495 T. Dorrance 725 r. Grimes 452 V. Williamson 540 Chamberlin r. Fisher 486 V. Fuller 695 i\ Morgan 363 r. Scott 337 r. White 854 V. Whitford 199, 201 Chambers r. Chambers 745 V. Livermore 633 V. McDowell 875 PAGE. Chambers v. Manchester and Mil- ford Ry. Co 400 V. Watson 914 i\ Whitney 77S Chamblee c. McKenzie 256 Chambliss r. Matthews 280 Champion r. Genin 179 c. Rigby 770' Champlain Co. v. O'Brien 210' Champlin r. Champlin 394 Chance i:. Board of Commission- ers 715 Chandler r. Coe 108, 110, 112, V. Fulton 571 V. Hollingsworth 393, 395 r. Johnson 440, 48.? 1-. Sanger 731 V. Simmons 6S Chandley r. Cambridge Springs . 448 Chanter v. Hopkins 653 V. Leese 235 Chanute Bank i: Crowell 267 Chapin v. Brown 42.5 V. Chapin 444 r. Dobson 173 V. Freeland 781, 794 i\ Longworth 59& v. Sha'fer 67 Chapleo v. Brunswick Building Society 701, 900 Chapman v. Barnes 778 r. Beltz Co 361, 528 r. Brainard 877 r. Chapman ■. . . . 67, 158 V. Cole 590 V. County of Douglas. . 142, 40S r. Forbes 581 i: Gray 414, 415 r. Hughes 717 r. Kansas Citv, etc., Ry. Co ■; ".. 364 V. Mears 246, 258 r. Rockford Ins. Co 448 i\ Rose 585 v. Shattuck 282, 284 V. Veach 586 Chappelle r. Olney 89 Chappie v. Cooper 79 Chapskv r. Wood 461, 462 Charch' r. Chareh 204 Charles v. Hastedt 82, 85 Charles E. Wisewall, The 402, 490 Charles P. Kellogg Co. v. Horkey. 717 Charlcstown v. Hay 552 Charlesworth r. Holt 417 Charter r. Charter 914 r. Trevelyan .... 388, 712, 721 Chase i\ Corcoran 12 t\ Dwinal 731 r. Fitz 172. 547 — ■ — V. Insurance Co OGO- TABLE OF CASES. xli Chase v, Redfield Creamery Co . . 17. Swain Chasemore v. 'lurnor Chattanooga Bank v. Rome lion Co Chattock V. Muller Chavasse, Ex parte Cheale v. Kenward Cheek v. Nail 851, 865, 870, Cheesman i: Wiggins Checver v. Smith r. \\ ilson Chemical Bank v. City Bank .... Chemical Nat. Bank i: World's Fair Exposition 323, Chemin de fer du Dauphine v. Clet Chenery ;■. Dele Cheney r. Cook V. Eastern Tansp. Line .... V. Libby 627, r. Stone Cherokee Iron Co. v. Jones .... Cherry v. Colonial Bank of Aus- tralasia v. Frost V, Heming 177, 182, Cherry Valley Works v. Florence, etc. Co Chesapeake Fuel Co. v. United States Chesebrough v. Conover Cheshire r. Payne 393, Chesley o. Frost 845, 848, Chessman v. Whittemore 849, 850, Chester r. Dickerson Chester Co. v. Bnrber Chester Glass Co. v. Dewey .... Chesterfield r. Jonssen. . 755. 756. Chevalier i\ Carter Cheveront i\ Textor Chew r. Barnet • Chezun v. McBride Chicago r. Cameron I'. Railroad Co V. Selden r. Sexton r. Tilley Chicago Bg. Co. r. Creamery Co . Chicago, etc., Co. v. Barry Chicago Dock Co. r. Kinzie . . . . Chicago and G. E Ry. Co. v. Dane Chicago, etc., R. R. Co. v. Bell . . . V. Gardiner V. Pullman Co r. Sebring Chicago, etc., Ry. Co. v. Belli- with 226 876 768 470 431 195 871 171 116 891 110 355 538 175 28 47 628 775 135 119 294 780 353 469 436 394 849 845 853 174 451 142 757 458 378 569 856 135 514 573 337 550 226 349 786 196 249 255 50S 469 14 584 PAGE. Chicago, etc., Ry, Co v. Clark... 211 V. Cobuin 437 V. Lewis 100 r. oMercliants' Bank 292 V. Wabash Ry. Co 500 Chicago Title Co. i\ Smith 284 Chicago Training School r. Dav- ies 337 Chicago Trust Co. v. O'Marr 863 Chicago Wrecking Co. v. United States 632 Chickasaw Co. r. Pitcher 383 Chicora Fertilizer Co. r. Dunan. 830 834 Chilcott i". Trimble 10 Child r. Uureka Powder Works... 877 Childer i. Bank 573 Cliilds f. Dobbins 67 Chiles V. Nelson 39 Cliilton i: Brooks 263, 264 r. Corporation of London. . . 232 r. Bobbins 384 Chimene r. Pennington 486 Cliinnock v. Marchioness of Ely.. 46 Chippewa Lumber Co. r. Phenix Ins. Co 448 r. Valley Co. v. Chicago, etc., Co 436 Chisholm r. ]\Iontgomcry 146 Chi.sm V. Bank ' 292 V. Schipper 289 Chisolm r. Newton 283 Cholmondelev v. Clinton 458 Chorley. Ex parte 289 Chouteau r. Jupiter Iron Works. 816 821 Chresman r. Hodges 816 Christian r. Cabell 663 Christian College v. Hendley 187 Christian County Bank r. Goode. . 853 Christmas v. Russell 780 Christopher St. Rv. Co. v. Twenty- third St. Ry. Co 640 Christy V. Flemington 778 Chrvsier r. Canadav 602 Chu'bb V. Stretch /. 893 v. Upton 720 Chubbuck r. Cleveland 700 Church r. Fowle 853 V. Howard 860 r. Imperial Gaslight, etc., Co 159, 163 V. Proctor. . . . 197, 37r, 419, 488 493 r. Sterling 387 Chirch Wardens r. IMayor 127 Churchill r. Bradley..".. 193, 194, 3S4 r. Rogers 634 r. Scott 768 r. White 84 xlii TABLE OF CASES. PAGE. Chute V. Pattee 200 V. (juincy 60G Chytraus v. Smith 39 Cicotte V. Church of tSt. Anne .... 11 Cilley V. Colby 384 Cincinnati v. Cincinnati Gas Co. 573 579 Cincinnati Gas Co. v. Western Sie- mens Co 591 Cincinnati R. Co. v. Bensley 11 Cincinnati Volksblatt Co. r. HofT- meister 12.") Citizens' Bank v. Babbitt ...214, 215 V. Importers' Bank 292 V. Lay 295 I'. Richmond 871 V. Smout 892 V. Williams 858 Citizens' Bank of Louisiana v. First National Bank of New Or- leans 795, 919 Citizens' Nat. Bank V. Richmond . 858 City Bank, Ex parte 14.5, 140, 288 City Bank r. Bangs 14 r. Dun 701 V. Nat. Bank 575 r. Wright 780 City National Bank v. Kusworm. 441 729, 748 Clack r. Hadley 039, 040 i: Holland 284 Claes, etc., Mfg. Co. v. McCord . . 350 301 ClaflFev r. Led with 734 Claflin r. Godfrey 581 r. Ostrom 258, 200, 209 Claflin et al. v. Carpenter 173 €laggett V. Crall 095 ". Salmon 385 Claiborne County v. Brooks 147 Clampet r. Bells 179 Clancy v. Flusky 552 Clanton v. Young 14 Clapp V. Hoffman GIG V. Mass. Benefit As.soc 058 r. Wilder 302 Clare r. Hatch 248 v. Lamb 580 Clark, Re 81 r. Allen 388 V. Baker 343 r. Bayer 402 r. Boyd 282 V. Burr 43 r. Bush 813 r. Busse 537 i\ Clark 158, 415 r. Collier 528, 538 r. Connecticut Peat Co. . . . 285 V. Dales 45 V. Davidson 787 PAGE. Clark V. Des Moines 146 r. Eckstein 873 r. Fairfield 340 r. Fey 823 V. Fisk 262, 274 r. Fosdick 415 r. Franklin 538 r. Gilbert 548 V. Girdwood 042 r. Guest 173 V. Hart 577 V. Henry 630 r. Howard 258 V. Insurance Co 659 V. Jones 170 r. Lillie 572 r. Lopez 750 r. McCleery 335 V. ^klcMahon 794 r. Malpas 750 r. Manchester 337 i: Marsiglia 349 ■ r. Mayor 337 V. National Benefit Co 360 r. Needham 408 V. Northampton 147 r. Pease 730 r. Pendleton 172, 170 • r. Ralls 091 r. Reeder 093 V. Russell 214 r. Shehan 786 V. Stanhope 470 r. Tanner 508 r. Tate 68 r. Terry 789 ;•. Turiibull 729 V. Valentino 91 r. Van Court 69 Clark's Appeal 193 Clarke v. Birlcv 384 r. Cobley' 84 r. Cuckgeld Union 104 r. Dickson 713, 714 r. Dinsmore 832 r. Dunrayen (Earl of ) . . . 6, 26 r. Dutcher 579 r. Foss 409 /■. Grant 312 r. Hawkins 832 r. Hogeman 281 r. Insurance Co •''99 r. Lincoln Lumber Co 400 ?•. ^tlcFarland's Exec. . . 249, 253 r. Reins 604, 600 V. \Miite 378 Clarkson r. Edge 478 Clarksyillo Land Co. v. Harriman. 559 Clawson r. Gustin 801 Clay V. Allen 408, 409 V. Freeman 775 TABLE OF CASES. xliii PAGE. Clay V. Powell 469 V. Ray 491, 492 V. Van Winkle 892 V. Woodrum 272 . V. Yates 337, 341 Clayton r. Adams 88 V. Clark 211 V. Corby 303 V. Freet 577, 639 V. Merrett 106 V. Rose 88 Clearwater v. Meredith 549 Cleary v. Sohier 537 Cleaveland v. Richardson 683 Cleaver ii. Burcky 275 V. Mut. Reserve Fund Life Assoc 243, 252 Cleaves v. Stockwell 596 Cleere v. Cleere 737 Clegg V. Clegg 447 V. Hands 299 Clem V. Railroad Co 688 Clement r. Mattison 98 Clement's Appeal 171, 378, 491 Clements r. L. & N. W. Rv. Co 60, 75 i\ Clements v. Moore 365 Clementson v. Blessig 427 Clendenning v. Hawks 388 V. Wyatt 459 Cleve r. Financial Corporation... 195 Cleveland r. Williams 106 Cleveland Rolling Mill v. Rhodes. 331 360, 629 Cleves V. Willoiighby 673 Clews V. Jamieson 408, 409 Clifford r. Hunt 429 V. Watts .... 519, 520, 541, 542 Clifton V. Litchfield 832 Clinan V. Cooke 635 Clinch V. Financial Corporation. . 725 Cline V. Goodale 852, 854 Cline V. Guthrie 585 V. Hovey 634 V. Templeton 215 Clinton r. Fly 595 V. Strong 731 Clinton Bank v. Studemann. . 245, 257 Clippenger V. Hepbaugh 436 Clitherall v. Ogilvie 753 Clitheroe v. Simpson 243 Clive V. Beaumont 45 Clodfelter v. Cox 281, 285 V. Hulett 257, 688 Clopton r. Bolton 324 Close V. Close ■ 385 V. Crossiand 608 Clough i\ Adams 750 r. Hosford 335 V. L. & N. W. Ry. Co 679 698, 708, 710, 711, 713, 724 PAGE. Clough V. Seav 870 Clover V. Gottlieb 337, 343 Clow r. Borst 842 r. Derby Coal Co 385 Clowes V. Higginson 311, 601, 635 Clubb V. Hutson 442 Clugas V. Penaluna 433 Clute r. Small 870 Clyne v. Helmes 673 Coaks r. Boswell 670, 671 Coale V. Merrvman 638 Coates V. Collins 617 V. Cook 620 V. Early . 584 Coats V. Gordon 87 Cobb V. Charter 731 v. Cole 610 V. Fishel 261, 265 r. Foree 40 V. Hall 786 r. Hatfield 709 V. Heron 256, 273 r. Knapp 116 V. Tirrell 378 Cobbett i: Brock 735, 768, 769 Coburn v. Raymond 101 Cochran v. Atchison 292 r. Baker 119 r. Nebeker 865, 866 V. People's Ry. Co 528 V. Perry 595 r. Stewart 294 V. Tatum 346 V. Ward 782, 784 Cochrane v. Willis 614, 615 Cock V. Moore 258 r. Richards 465 Cockcroft V. MuUer 335 Cockell V. Taylor 749 Cocker's Case 228 Cocking V. Ward 788 Cockrell v. Thompson 409 Cocks V. Varney 258, 276 Codding r. Munson 122 Coe r. Hobby 827 Coe V. Smith 543 Coffee r. Ruffin 749 Coffey V. Commonwealth 14 Coffin i\ Adams 260 r. Bradbury 257 V. Portland 37 Coffman v. Bank 748 17. Harrison 119 Cogan V. Duffield 643 Cogley V. Cushman 67, 69 Cohen v. Berlin Envelope Co 408 r. Insurance Co 429 V. Kittell 499 Cohn r. Heimbauch 488 V. Plumer 48 Cohrt V. Kock 274 xliv TABLE OF CASES. PAGE. Coit r. Houston 832 V. N. C. Gold Amalgamating • Co 720 17. Schwartz 653 r. Starkweather 860 Colborne and Strawbridge, Ex parte 288 Colcord r. Fletcher 880 Cold Blast Co. v. Kansas City Co. 197 Coldcleugh r. Johnson 775 Coldcot r. Hill 625 Cole V. Clark 11 V. Cole 98, 266 r. Getzinger 750 V. Gibbons 756 V. Gibson 464 r. Hawes 624 v. Hills 854, 863, 874 r. Joliet Opera House Co. . 725 V. O'Neill 393 V. Pennoyer 66 V. Savage 275 i: Saxby 52 Cole's Lessee r. Pennington 864 Coleman r. Applegarth ... 28, 33, 35 V. Bank 112 r. Billings 451 r. Frazer 99 r. Grubb . . . 573 r. Hatcher 245 r. Hiler 249, 251, 252 V. Rowe 324 r. United States 11 V. Waller 380 r. Wooley's Exr 889 Coleman's Est 735 Coles V. Bowne 605, 640 V. Clark 565 r. Pilkington 186, 917 r. Trecothick 754 r. Yorks 851, 866 Colgan V. Jones 453 CoUamer v. Day 406 College r. Wilkinson 99, 102 College Mill v. Fidler 19 Collen V. Wright 119 Collet r. .Jaques 847 Collier r. Baptist Soc 187 r. Brown 753 Collins V. Ball 873 V. Blantern 442, 493 v. Bradbury 292 r. Delaporte 349 V. Fowler 388 v. Goldsmith 88 r. Locke 448, 473 r. Martin 11 r. :\Iurrell 483 r. Prosser 857, 863 V. Ralli 719 t'. Westbury 728 PAGE, Collyer r. Fallon 439 r. Moulton 349, 816, 818 Colman v. E. C. By. Co 897 Coloma V. Eaves 137 Colorado Springs Co. v. American Pub. Co U(y Colson V. Arnot 292 Colson r. Meyers 501, 502 Colt V. McConnell . , 193 Columbia Bank v. Holdeman 502 Columbia Carriage Co. V. Hatch. 483 Columbia Wire Co. v. Freeman Wire Co 197 Columbia Iron W^orks v. Douglas. 608 653 Columbus, etc., By. Co. v. Gaffney. 12 Colvear r. Mulgrave 234 Comer r. Thompson 879, 880 Comes V. Lamson 178, 789 Comfort r. Betts 279 Comley r. Dazian 240 Comly r. Hillegass 405 Commercial Bank r. Patterson... 864 Commercial Bank V. Pirie 716 r. Wood. .258, 259, 261, 264, 273 Commercial Ins. Co. v. Hallock . . 39 Commercial Tel. Co. v. Smith... 46 Commercial Union Ass. Co. v. Hocking 449 Commings r. Heard 877 Commissioners t\ Aspinwall 137 V. Bolles 137 r. Emigrant Bank 866 V. January 137 r. Vandyke 495 r. Young 524, 526 Commissioners of Guilford Co. r. March 411 Commissioners of Sewers v. Reg. 536 Commonwealth v. Aves 510 V. Bassford 507, 508 r. Central Bridge Co 131 V. Cooper 389 r. Gabbert's Admr 383 r. Holmes 383 r. Kennedy 486 r. Lane 306, 509 V. Leeds 596 i\ Munson 158 r. Overby 557 r. Peaslee 486 r. Pulaski Co 130 r. Railroad Co 130, 131 r. Savings Bank 137 r. Sides 284 r. Terry 557 r. Vandyke 205 r. Webster 557 r. Williamstown 146 Commonwealth Ins. Co. r. Knabe. 886 Companies' Acts, Re 52ft TABLE OF CASES. xlv PAGE. Compton V. Martin 177 Comstock, Re 87 Comstock r. Adams 444 V. Herron 650 V. Howd 187 V. Price 330 V. Smith 275, 874 Conable v. Kceney 850 V. Smith 856 Conant v. Alvord 119 V. B. F. Canal Co 147 Conary v. Sa\\yer 63 Conboy v. Howe 77 Condict p. Flower 853 r. Blackwell 743 Condon r. Barr . 200 ■ V. Walker 402 Cone v. Russell 376, 377, 439 Confederate Note Case, The 431 Congdon r. Darcy 46 Conger v. James 880 Congregational Soc. ;;. Flagg. 240, 258 V. Perry 187 Congress Spring Co. r. Knowlton. 495 Coniers and Holland's Case .... 817 Conine v. Railroad Co 160 Conkey i: Bond 388 Conklin v. Conway 501 V. Smith 257 Conkling r. Tiittle 204 Conlan v. Roemer 690, 692, 713 Conley v. Xailor 736 V. Palmer 515 Conn V. Coburn 80 Connecticut Ins. Co. v. Chase ... 661 r. Hamilton 448 V. Jones 876 V. United States 532 V. Way 452 Connecticut Mut. L. I. Co. V. Knapp 272 V. Mayer 264 Connecticut River Lumber Co. v. Brown 839 Connell v. Kitchens 399 Connelly t'. Devoe 550 Conner "f. Canter 438, 439 V. Drake 446 r, Fitzgerald 790 V. Fleshman 874 V. Sharpe 872 Connolly r. Branstler 88 17. Union Pipe Co 490 Connor v. Black 408, 502 V. Jones 262 V. Simpson 880 V. Stanley 746, 747 Conover r. Hobart 275 r. Stillwell 204 Conquest's Case 227 PAGE. Conrad v. Lane 82 V. Schwamb 666 r. Williams 465 Conroo c. Birdsall 82 Conrow v. Little 708 Consaul r. Sheldon 852 Consolidated Co. v. Curtis 565 Consolidated Exploration and Finance Co. r. Musgrave 443 Consolidated Milling Co. r. Fogo. 679 Constable v. National Steamship Co 250, 259, 277 Consumer's Ice Co. /•. Jennings . . . 852 Continental Nat. Bank -v. Mc- Geoch 380 Continental Trust Co. v. Toledo, etc.. Ry. Co 390 Converse r. Michigan Dairy Co. . 299 Conway r. Cutting .* 281 V. Garden City Co 470 i: Gore 634 Conway's Exrs. v. Alexander 031 Conyers, Admr. of. r. Magrath. ... 114 Coody V. Gress Lumber Co 173 Coogan r. Parker 531, 534 Cook V. Anderson 531 V. Andrews 541 r. Berlin W. M. Co 390 r. Berrott . * 258 V. Bradley 199 V. easier 34 r. Coxwell 872 r. Doggett 787 r. Field 450 V. Lister 295, 593 V. Liston 639 r. McCabe 528 v. Morris 876 i: Preston 634 r. Sherman 500 r. South Columbia Co 389 r. Tullis 121 V. Walker 643 Cooke r. Cooke 446, 458 r. Eshelby 115 V. Lamotte 737 V. ]\Iurphy 204 r. Nathan 089 V. Oxlev 27, 31, 34 V. Poof 452 Cooksey v. Kansas City, etc., R. Co 870 Cool r. Cunningham 197 Coolev V. Lobdell 790 v. Steele 88 Coolidge V. Payson 2.5 r. Rhodes 690 Coombes r. Chandler 294 V. Dibble 912 Coombs r. Emery 402 r. Gorden 567 ilvi TABLE OF CASES. PAGE. Coombs V. Railway Co 782 r. Wilkes 179 Coon V. Rigden 180 Cooney r. Lincoln 102, 104 Cooper V. Altimus 22 V. Austin 175 V. Commonwealth 590 v. Cooper 11 V. Evans G62 r. Foss 261 t-. Gum 335 r. Hornsby 786 r. Insurance Co 639 V. Joel 662 V. Johnson 878 r. Lansing Wheel Co 197 V. Lee 730 V. Lovering 690, 692 r. Parker 838 V. Phibbs 564, 576, 579, 615 616 V. Simmons 74, 79, 596 i: State 81 ■ V. Vesey 568, 593 r. Yazoo, etc., R. Co 839 Coors v. German Bank 291 Coover r. Davenport 120, 495 Cope v. Parry 241 1-. Rowlands 400 V. Thames Haven, etc., Co. 165 Copeland v. Boaz 444 • r. Insvirance Co 388 v. :\Ianton 281 V. Wading River Co 879 Copenrath v. Kienby 101 Copes f. ]\Iattliews 112 Copley V. Grover S. M. Co 130 Coppell V. Hall 497 Copper V. Mayor 145 Copper Miners of England v. Fox 163 Coppock V. Bower 444, 493 Coquillard v. Bearss 451 Corbett v. Cochran 170 r. Lucas 821 r. I'nderwood 408 r. Waterman 261, 264 Corbin v. Wachhorst 486 Corbyn v. Brokmeyer 215 Corcoran v. Corcoran 444 V. Doll 873 r. Lehigh Coal Co 408 r. White 44 Cordes v. Miller 514, 529 Cordingley v. Cheesebrough .... 665 Corey r. Powers 246, 258 Cork and Bandon Ry. Co. v. Cazenove 73 Cork and Youghal Rv. Co. Re . . . 400 Corley r. Lord Stafford 391, 642 V. Williams 442 PAGE. Corn v. Matthews 62, 75 Corn Exch. Bank v. Nassau Bank 292 Cornell v. Cornell 551 V. Crane 695 V. Hall 631 v. Hichens 292 Cornelson v. Insurance Co 14 Corner v. Mackey 258, 266 V. Sweet 814 Cornfoot v. Fowke 700 Cornford v. Carlton Bank 130 Corning r. Abbott 402 r. Burton 260, 264 Cornish v. Wiessman 302 Corns i: Clouser 436, 488 Cornwall r. Henson 340, 345 V. McFarland 692 Corrigan v. City 532 i: Tiernay , 036 Cort r. Ambergate, etc., Ry. Co 353, 364 Cortelyou v. Hoagland 171 Cortland Mfg. Co. v. Piatt 699 Cory r. Gertcken 85 V. Patton 796 Cosgrove i'. Fanebust 874 Costa Rica Ry. Co. v. Forwood. . . 391 Coster V. Albany, Mayor of 258 276 Costigan r. Hastier 755 Cote, Ex parte 39, 571 Cotes V. Bennett 261 Cothran v. Ellis 406 Cottage Street Church v. Ken- dall 35, 186, 187 Gotten V. Williams 857 Cotton V. Edwards 858 r. McKenzie 483 Cottrill V. Krum 695 Couchman's Admr. v. Couchman . 735 Coughlin r. Knowles 786 r. Railroad Co 451 Coulson V. Allison 735 Coulter V. Clark 692 V. Robinson 491 County of Gloucester Bank v. Rudry Merthyr, etc., Co 899 County Life Assurance Co. Re . . 898 County of Macon v. Shores .... 144 Courcamp r. ^Veber 873 Coursolle v. Weyerhauser . . . 66, 174 Courtenay v. Williams 776 Courtis ;■. Cane 565 Courtright r. Burns 452 i\ Courtright 577 Coutts V. Acworth 768 Courturier v. Hastie . . 540, 612, 915 Covell V. Bostwick 194 Coventry r. jiirton 495 Cover r. McLaughlin 346 TABLE OF CASES. xlvii PAGE. Coverdale v. Eastwood 918 Coverly v. Terminal Warehouse Co 470 Covington i\ Threadgill 399, 400 402, 483 Cowan r. Baird 662 V. Fairbrother 468 V. Milbourn . 372, 420, 488, 489 911 V. O'Connor 36 Coward r. Hughes 580, 759 Coward and Adam's Purchase Re 94 Cowasjee Manabhoy v. Lallbhoy Vuliubhoy 544 Cowdin r. Goltgetreu 170 Cowdrey v. Vandenburgh 294 Cowdry v. T)ii\ 630 Cowee V. Cornell 193, 737, 738 Cowell r. Lun^.lov •'^•^^ Cowen V. Truefitt, Ltd 317 Cowing V. Cloud 292 Cowles I". Morgan 889 V. Raguet 488 Cowles Electric Co. v. Lowrey ... 622 Cowley V. Smyth 692 Cox V. Alexander 867 V. Britt 622 V. Haun 388 V. Hoxie 275 V. Jagger 879 V. McLaughlin 332, 352 V. Montgomery 723 V. Prentice 610, 621 V. Railroad Co 54, 383 Cox Shoe Co. v. Adams 717 Coxhead v. Mullis 70 Coy V. Downie 531 Coyle V. Baum 341 Coyner v. Lvnde 204 Crabill v. Marsh 790 Crabtree v. Kile 607 r. May 64 V. Messersmith 361 Craft V. Kendrick 170 V. McConoughy 468, 500 Craft's Appeal 291 Craftsbury v. Hill 879 Cragie v. Hadley 701 Cragin r. Lovell 110, 277 Cragoe c. .Jones 383 Craig V. Butler 531 V. Dimock 798 V. Harper 27 v. Kittredge 634 V. Lowe 870 r. Town of -\ndes 137 r. Van Bebber 08 Craighead v. McLoney 8G.j PAGE. Cram v. Cottrell 199 Cramer r. Hanaford 890 r. Lepper , 27.> Crampton v. Ballard 250 V. Ridley SO.'i V. Varna Ry. Co 16i> Crandall r. Auburn Bank 858 r. Willig 28, 217 Crane v. Crane 685 V. C. Crane & Co 197 V. Wheeler 171 V. Wilson 629 Cranmer v. Porter 850 Cranson r. Cranson 393 v. Goss 495 Crafs V. Cruggs 831 Cravens r. Booth 88 Craver v. Hornburg 60S Crawford v. Berry 880 r. Edison 170 V. Edwards 260, 263, 275 i\ Insurance Co 55, 42S r. Longstreet 140, 161 r. Mail & Express Co 52 r. Millspaugh 816, 821 V. Osmun 505 V. Rohrer 719 r. Russell 464 c. Scovell 102 v. Spencer 406, 409 V. West Side Bank 861, 871 V. Wick 469 r. Witherbee 301 Crawshaw V. Roxbury 23 Crayton v. Clark 286 Cream City Co. v. Friedlander . . . 108 Crears v. Hunter 213 Creed v. Henderson 186 Creekmore v. Chitwood 402 Creesy r. Willis 260 Creigh's Admr. r. Boggs 664 Creighton v. Gregory 840 Crescent Co. v. Bear 500 Cresinger v. Welch 63, 68, 69 Cress V. Blodgett 261, 273 Cresswell v. McCaig 786- V. Martindale 332; Cribben v. Deal 855, 856- Cribbins i\ Markwood 757 Cribbs v. Sowle 729 Crim V. Fitch 170- Cripps'f. Hartnoll 170, 171 Criss V. Criss 774 Crisup V. Grosslight 441 Critcher v. Holloway 487 Crocker v. Arey 780 V. Bellange 456 r. Higgins 259 v. Manley 691 r. Railroad Co 16, 27 xlviii TABLE OF CASES. PAGE. Crockett v. Doriot S'JO r. Tliomason 859 Croft V. C4raham 759 t-. White 853 Crofts v. Middleton 398 Crolley r. Railway Co 141 Cromwell v. Wilkinson.. 341, 342, G29 Crone i: Stinde 249, 251, 2G5 Cronin v. Watkins 298 Croninger v. Crocker 605 v. Paige 608 Cronk r. Cole 691 Cronkhite v. Nebeker 868 Croockewit v. Fletcher 873 Crook I'. Corporation of Seaford. . 147 Crooker v. Holmes 52 Crooks V. Crooks 218 r. Nippolt 708 Crookshank r. Rose 807 Cropton V. Davies 317 Crosby v. Meeks 703 V. Wadsworth 783 Cross V. Brown 295 r. Button 531 r. Cross 444 r. Powell 843 V. State Bank 855 V. Truesdale 257 Crossley t'. Conn. Ins. Co 448 V. Maycock 44 r. Moore 378, 504 r. Stanley 661 Crossnian v. Lurman 878 r. Universal Rubber Co.... 707 V. Wohlleben 205 Croswell v. Labree 854 Crouch V. Credit Foneier of Eng- land 288, 293, 294 Crow r. Kimball Lumber Co 831 r. Lewis -. . 272 • r. Robinson 285 ■ r. Rogers 244 Crowell V. Currier 263, 274, 276 • r. Hospital of St. Barnabas. 274 r. Jackson 683 Crowley v. Genesee Mining Co. . .. 161 r. Langdon 690 Crown Cycle Co. v. Brown 707 Crown Point Iron Co. V. ^Etna Ins. Co 40 Crowther r. Farrer 830 Crovle V. Moses 681 Crozier, Re 260 V. Shants 283 Crum r. Sawyer 814 Crumbaugh r. Kugler 258 Crumlish's Admr. v. Central Imp. Co 841 Crump r. Morgan 98 V. U S. Mining Co. 675, 700, 701 PAGE. Crutcher r. Trabue 384 Crutchfield r. Donathon 788 CucuUu V. Walker 257, 274 Cudney r. Cudney 736 Cuff r. Penn 823 Culbreath v. Culbreath 579 Cullen V. Bimm 652 r. Thomson's Trustees and Kerr 703 Culmer V. American Co 285 Gulp V. Love 468 Culver V. Banning 187 Cumber v. Wane 211, 838 Cumberland Assoc, v. Gibbs.. 385, 661 Cumberland Bank r. Penniman. . . 859 Cummer v. Butts 49 Gumming r. Ince 730 Cumming's Appeal 193 Cummings v. Arnold 821, 823 v. Bramhall 776 V. Gann 13, 23 r. Little 386 V. Union Stone Co 468 Cundy v. Lindsay 592, 718 Cunningham r. Barnes 463 r. Carpenter 283 r. Dunn 530 r. Jones 453 V. Munroe 731 V. Neeld 179 r. Williams 180, 850 Cuno, Re, Mansfield i\ Mansfield. 95 Curlewis r. Clark 838 Curley v. Dean 878 Curran v. Gurran 789 v. Downs 402 Currie v. Goold 581 V. Misa 185 Curry v. Curry 11 r. Rogers 250, 255 Curtin v. Patton 82 Curtis r. Albee 563, 639 r. Aspinwall 684 r. Blair 174 r. Curtis 459, 814 r. Gibney 332 r. Gokey 375 r. La Grande Water Works. 791 r. Lakin 723 r. Leavitt 140 r. McDougal 69 r. Sage 177 V. Smith 550 r. Tyler 262 V. Van Bergh 633 r. Williamson 116 Curzon r. Belworthv 765 Cushing ;•. Field . .' 859 r. Rice 112 Cushman r. Insurance Co 658 TABLE OF CASES. xlix PAGE. Cutlibertson's Appeal 734 Cutler r. Gilbreth G08 (,". Haven 282 V. Pope 173 v. Rose 851 V. Welsh 487 Cutter V. Cook 295 ('. Gillette 300 r. Powell 327 Cutts V. Guild 599 V. United States 854 V. Ward 913 Cuxon r. Chadley 240 D. D. C. V. Gallagher 318 Da Costa v. Davis 552 V. Jones 425 Dacre v. Gorges 600 Dadirrian v. Yacubian 419 Dady i\ Condit 693 Dagenliam Dock Co., Re 632 Daggett r. Flanagan 284 r. Johnson 51 Dailev v. Cohen 798 V. Mollis 470 V. King 214 Daily v. Minnick 193, 195, 200 Dakota, etc., Co. i: Price 335 Dale, Re 548 V. Hamilton 174, 791 v. Robinson 891 Daley ;". Peoples' Assoc 346, 352 Dallas V. Heard 891 Dally v. Wonham 743 Dalryniple r. Scott. 348, 360, 367, 368 Dalton V. Angus 304 r. Gib 78 r. :Midland Ry. Co 8.? r. Thurston ." 679 Dambmann r Schulting 683 Dame v. Baldwin 567 Damron v. Comm 82 Dana r. Hancock 823 V. Stearns 63 Danby v. Coutts 815 Danforth v. Culver 777 V. Walker 349 Dangel v. Levy 873 Dangler r. Baker 699 Daniel v. Bowles 495 V. Daniel 872 v. Frazer 782 r. Hill 7.S6 V. Mason 38 r. Robinson , 170 Daniel's Settlement 317 Daniell v. Sinclair 576, 579 Daniels r. Benedict. 92, 414, 415, 735 r. Gibson v 170 r. Ilallenbeck S42 V. Johnson 261, 267, 631 iv PAGE. Daniels r. Newton 358, 359, 364 Danilier v. Grand Lodge 449 Dannat v. Fuller 549 Dansby v. Frieberg 378, 380 Dant V. Head 177, 789 Danube, etc., Co. v. Xenos 360 Danziger v. Hoyt 842 Darby v. Kroell 693 Darland r. Taylor 844 Darling r. Gumming 182 Darlington's Appeal 735, 768 Darlington Iron Co. v. Foote 39 Darrell r. Hastings 79 V. Tibbitts .533, 659 Darrow r. H. R. Home Co. . 108, 112 Darst V. Gale 142 Darwin r. Ripley 860 Dashwood v. -Jermyn 918 Daskam /•. Ullman 654 Daubuz V. Morshead 429 Dauglish r. Tennent 378 Dauler v. Hartley 501 Davenport v. Bishopp 234 r. First Congregational Soc. 210 r. Gentry's Adinr 596 '•• Reg Gl Davey r. Shannon 177, 479 David V. Park 695 r. Ryan 514, 529 Davidson v. Burke 211, 816 V. Cooper 853, 873 V. Greer 640 r. Kelly 875 1-. Little 749, 757, 768 Davidson's Appeal 88 Davie v. Lumbermen's Mining Co. 49 50 Davies v. Burns 205 r. Divies 65, 70, 477. 481 v. Fitton 637, 638 v. Jenkins 889 r. London and Provincial Marine Ins. Co 660, 681 V. Lyon 701 r. Makuna 801, 803 r. Smith 52 i\ Stowell 400 Davis r. .Etna Mut. F. Ins. Co. . . 39 V. Allen 116 V. Arledge 495 V. Bank 106 r. Bauer 857, 859 r. Betz 688. 706, 708, 709 V. Boggs 623 r. Bronson 349 r. BroM-n 468 V. Building Union 144 V. Caldwell 77 V. Callowav 257, 200 r. Campbell 187, 852 V. Carlisle 853 r. Coburn 595 TABLE OF CASES. PAGE. Davis r. Commonwealth 436, 45 i r. Curtis 875 r. Davis 106, 407 V. Dean 744 V. Dexter Co 226 V. Dudley 69 i\ Duke of Marlborough. . . . 440 r. Elv 634 i\ Eppler 860 r. George 673 V. Gerber 174 ('. Grand Rapids, etc., Co. . . 361 V. Gray 194 r. Hamlin 390 V. Hardy 271 r. Hartierode 608 r. Henry 865 r. Holbrook 502 r Hulett 263 r. Inscoe 786 r. Jeffris 326 V. Lane 100, 106 r. Laning 91 r. ^McFarlane 173 r. Meeker 692 r. Miller 295 r. Morgan 199, 204 r. ]\funson 205 ■ V. Xat. Bank of Commerce.. 271 r. Newman 581 r. Noll 295 r. Parker 666 r. Patrick 171 V. Prvor 120, 158, 495 V. Railroad Co 142, 143 r. Richardson 798 r. School District 11 r. Seelev 291 v. Settle 452 r. Shafer 857 V. Shields 180 r. Smith 890, 893 r. Snvder 583 r. Stout 206 r. Strange's Exrs 735 r. Stuard 721 r. Tarver 99 r. Thomas 631 r. Tift 170 r. Tingle 88 V. Tubbs 353 r. Water Works 254 V. Wells 22, 35 r. Williams 4.37 V. Wrigley 775 Davis, etc., Works v. McHugh .... 28 Davison r. Davison 790 V. Von Lingen 655 Davisson ;;. Ford 215 Davoue v. Fanning 387 PAGE, Davy t'. Bangs 40{> Da we r. Morris 650, 689, 693 Dawes, Ex parte 624 Dawes v. Harness 710 V. Jackson 112 Dawkins v. Gill 445 r. Sappington 14 Dawson v. Burns 584 V. Collis 334, 342 r. Dawson 89 i: Ellis 789 r. Fitzgerald 448, 449 V. Helmes 63 V. State 383 Day r. Caton 1 1 f- Cloe' 170 V. Connecticut, etc., Co 361 v. Day C39. 644 r. Fort Scott Co 689, 854 V. Gardner 210 V. Holmes 389 V. McLea 839 r. New York Cent. R. R. Co. 176 V. Newman 753, 754 r. Patterson 261 r. Pool 608 r. Putnam Ins. Co 205 r. Singleton 611 t\ Vinson 595 V. Wilson ' 786 Dayton r. Fargo 456 r. Turnpike Co 226 Dayton Co. v. Sloan 786 Deacon v. Gridley 203 Dean v. Carruth 56 r. Driggs 293 r. Emerson 483 r. Oliver 690 r. Rice 385 r. Rose 693 r. Walker 265 V. Yates 592 Dearborn v. Bowman 199, 201 Dearden v. Adams 67 Dearie v. Hall 281 Dearmond r. Dearmond 395 Deatley's Heirs v. Murphy 505 Deaton v. ]Munroe 737, 738 r. Tennessee Coal Co 176 Deaver v. Bennett 501 De Baun v. Brand 470 De Bebian r. Gola 112 De Beil i: Thomson 466, 915 Debenham r. Ox 466 De Bolle r. Pennsvlvania Ins. Co.. 276 De Bus.sche r. Alt. 388, 389, 392. 596 723 De Camp r. Hamma 585 Decan r. Shipper 592, 718 Decell r. Lewenthal 77 TABLE OF CASES. PAGE. De Chambrun r. Schermerhorn . . . 505 Decker r. Decker 014 i: Fredericks 702 Dedrick v. Blyker 204 Dee c Downs 171 r. Key City Ins. Co 448 Deere r. Morgan 679, 708 Deering i: Chapman 483 V. Cunningham 434. 430 i\ Earl of Winchelsea 380 r. ]\Ioore 212 Deering Co. r. Peugh 602 Deering Harvester Co. r. White.. 853 Defenbangh v. Weaver 827 De Francesco r. Barnum 75 De Freest i\ Warner 778 De Graunni r. Jones 802 De Groff /•. Amer. L. T. Co 142 ■ i: United States 870 DeHoghton v. Money... 226, 453, 450 457 Deierling v. Sloop 409 Deischer r. Price 644 Deitz r. Insurance Co 112 De Jarnett r. Cooper 634 De Jonge r. Hunt 45 Delacroix v. Bulkley 827 De la Cuesta V. Insurance Co. 579, 731 Delafield v. Parish 734 De Lancev r. Finnegan 630 Dc Lassaie v. Guildford. 173, 313, 533 921 De la Touche's Settlement, Re 623 De La Vergne Co. v. German Sav. Inst 143 Delavina v. Hill 480 Delaware, etc., Co. v. Common- wealth 131 Delaware County r. Diebold Safe Co * 595 D. & H. C. Co. V. Penn. Coal Co. 448 V. Westchester Bank... 238, 258 Delaware Navigation Co. i. Rey- bokl [ . 420 Delaware, etc.. R. Co. i: Frank. . . 490 De Leonis r. Walsh 502 Delier r. Plymouth Soc 405 Dellett V. Kemble 791 Dellinger r. Gillespie 584 Delmas r. Insurance Co 420, 431 Delone r. Hull 707 De Longuemere r. Insurance Co.. 657 De Lovenzo v. Hughes 830 Delp r. Brewing Co 258, 259, 266 De Malarin r. I'nited States 855 Demars r. Musser-Santry Co 214 De Martin r. Phelan. . ." 630 De :\Iattos r. Gibson 298 Demeritt r. Bickford 171 Deming r. Darling 690 694 V. State 503 De Montague v. Baeharach 343 Dempsey v. Harm 408 r. Lawson 337 Den r. Wright . , 853 Dendy r. Henderson 478 De Nicholls v. Saunders 594 De NicoLs, Re 174 Denio r. State 382 Denison v. Denison 15S Denman v. Bayless 879 V. McMa'hin 820, 844 Denn r. Wilford 624 Dennehy v. McXulta 490 Dennett v. Atherton 304 r. Dennett 104 r. Lamson 813 Denney r. .Johnson 431 V. Wheelwright 52 Dennis r. .Tones 700 V. Northern Pac. Co 634 Denny r. Hmcock 602 r. Williams 782 Densmore Oil Co. v. Densmore, . . 389 674, 676 Dent r. Bennett 735, 737, 746 V. Ferguson 496 • i\ Long 769 Denton r. English 413 V. G. X. Ry. Co 15, 19 r. Peters .* 291 Denver, etc.. Co. v. Stout 448 Denver, etc.. R. R. Co. v. Riley. . . 448 De Pauw r. Bank "867, 868 De Perez v. Everett 699 De Peyster r. Hasbrouck 634 Deposit Bank v. Hearne 661 Deposit Life Assur. Co. v. Ays- cough 710 Derby v. -Johnson 337, 349, 550 .'??. Phelps 172, 178 V. Thrall 863 Dermott v. Jones 528 Derocher r. Continental Mills. ... 67 Derr r. Keaough 868 Derrv v. Duchess of Mazarine. ... 91 ■ r. Peek 647, 677, 683, 684 Des Farges r. Pugh 679 Deshon r. Fosdick 43 r. Wood 794 Desilver, Estate of 101 Des Moines Univ. r. Livingston.. 186 De Sobrv r. De Laistre 511 Detroit Bank r. Blodgett 729 Dettra r. Kestner 716 Deutsch r. Pratt 572, 604 Deux V. JefTeries 836 Devecmon r. Shaw 9. 196. 216 Devendorf r. W. Va. Oil, etc., Co. 110 Devers r. Howard 249, 251. 253 Devine r. Edwards 575, 610 i\ Harkness 470 lii TABLE OF CASES. PAGE. Devine i-\ State 557 Devlin v. Mayor 595 L>evoe v. Brandt 679, 717 Devonshire's (Earl of) Case 153 Dew r. Parsons. . . .'. 7'^1, 732 De Wahl v. Braune 91, 104 Dewees v. Miller 406 Deweese r. Cheek 832 V. Muff 106 Dewey v. Merritt 873 V. Union tSchool Dist 552 De Witt V. Berry 652 r. Railway Co 30 f. Walton 110 De Witt Co. r. New Jersey Co... 468 De Wolf V. French " 52 Dews V. Olwill 285 De Wiitz r. Hendricks 430 Dexter r. Edmands 780 V. Hall 43, 100, 101 r. McCellan 390 )•. Xortcn 534, 559 r. Young 879 Dev V. Martiii 383 Dial r. Crain 822 Diamond r. Harris 531 Diamond Match Co. r. Roeber. . . 426 468, 478 Dibbins r. Dibbins 107 Diljble r. Insurance Co 55 Dibblee i\ Sheldon 708 Dick r. Leverich 292 r. Page 106 Dickerman v Miner 863 r. Northern Trust Co 490 r. Mays 787 Dickey, Succession of 801 r. Linscott 545 Dickinson, Ex parte 508 r. Burrell 45G r. Calahan 543 v. Dodds ... 27, 28, 32, 34, 42 V. Gay 620 r. Seaver 456 v. Valpy 145 Dickie V. Nashville Abstract Co.. 700 Dickson r. Bamberger 856 i: Kittson 439 r. Miller 893 V. Patterson 709 V. Renter's Telegram Co 233 V. Swansea Vale Ry. Co. . . . 288 Dickson's Exr. r. Thomas . . . 406, 407 Dickson Mfg. Co. v. American Locomotive Co 449 Diddle r. Needham 789 Diem v. Koblitz. . .323, 335, 355, 361 571 Dietrich v. Hoefelmeir 177 Dietz, Re 380 PAGE. Dictz's Assignee v. Suteliffe 707 Ditfenderfer v. Scott 195 Diggle v. Higgs 406, 501, 912 r. London and Blackwall Ry. Co 162 Diggs r. Denny 679 Di lorio r. Dl Brasio 215 Dikeman v. Arnold 346 Dilks r. Hammond 879 Dill r. Bowen 68 Dillaby r. Wilcox 171 Dillard r. Brenner 408 Dillard v. Insurance Co 428 Dillaway r. Alden 409 i\ Peterson 264 Dillinger's Appeal 415 Dillman r. Nadlehoffer 088 Dillon r. Allen 399 r. Anderson 349 r. Cunningham 894 Diman r. Railroad Co 639, 641 Dimmick r. Register 256, 268 Dimmock r. Hallett 6G5 Dingeldein v. Third Ave. R. R. Co 258 Dingley r. Oler 360, 36S Dinkier v. Potts 717 Dinsmore r. Duncan 853 V. Stimbert 585 v. Tidball 661 Dinwiddie r. Self .577 Dion r. St. John Baptiste Soc 406 Distilled Spirits, The 108 Distilling Co. v. Nutt 486 District of Columbia v. Camden Iron ^^ orks 160 V. Gallaher 573 Ditcham r. Worrall 70 Ditson V. Ditson 685 Dittoe's Adm'r -v. Climey's Exrs. . 844 Dively v. Cedar Falls 146 Diver r. Friedheim 850 Diversy r. Kellogg 106 Dix r.'Cobb 285 Dixie r. Worthy 200 Dixon, Ex parte 114 V. Bovill 293 r. Dixon 417 v. Duke 786 r. Fridette 340 r. Olmstead 441, 4SS r. Pace 240 V. Spencer 383 V. Wilmington Trust Co... 706 Dixon County v. Field 137 Doane r. Chicago City R. R. . 436, 437 r. Dunham 652 r. Eldridge 861 Dobbin r. Cordiner 88 V. Hubbard 891, 893 TABLE OF CASES. liii PAGE. Dobbins r. Higgins 332 Dobell V. Stevens 094 Dobson V. Espie 817, 818 Dockery r. McLellan 451 Dod V. Edwards 812 Dodd V. Bartholomew G2.3 v. Churton 529, 551 V. Wakeinan 391 Dodder v. Snyder 173 Dodge, Re 39 L\ Adams 199 V. Hopkins 107, 174 1-. Nat. Exchange Bank 258 V. Zimmer 173 Dodge's Admr. v. Moss 257, 274 Doe r. Bingham 850 r. Burnham 402 V. Catomore 873 r. Hirst 845, 84G, 848 Doe d. Bennett v. Hale 804 Doe d. Bryan r. Bancks 61 Doe d. Garnons v. Knight G, 55 Doe d. Leach v. Micklem 317 Doe d. Pennington v. Taniere. . . . IGO Doe d. Williams v. Evans... 458, 459 Doggett f. Emerson 701 Doheny. v. Lacy 737 Doherty r. Dolan 335 V. Hill 179 Dolan v. Rodgers.. 535, 536, 538, 559 Dolbeer v. Livingston 855, S5G Dolbier v. Norton S.i9 Doll V. Grume 249, 254, 273 V. Noble 52 Dollar r. Parkington 178 Dolson V. Hope 402 Don V. Lippmann 781 Donaldson r. Farwell 679, 712 V. Williams 845 Donegal r. Vcrner 44.5 Donellan r Read 789 Donnell v. Bennett 469 Donnelly v. Gurrie Hardware Go. . 4G r. Newbold 210 Donnelly's Will 735 Donner v. Redenbaugh GGG Donovan v. Daiber 409 V. Donovan G85 V. Ward G9 Don Yook r. Washington Mill Co . 258 Dooley r. Jackson 502 Doolin V. Ward 470 Doolittle V. McCullough 337, 728 Doran v. McGonlogiie 738 Dorland v. Mulhollan 25 Dorr V. Cory 690 r. Fisher 608 Dorrington r. Minnick 270 Dorsey r. Gonrad 874 v. Packwood 218 Dorwin v. Smith 460 Doty V. Railroad Go 298 Dougan r. Macpherson Dougherty v. Bash r. Gatlett V. Powe r. Seymour r. Sprinkle Dougherty Bros. v. Gentral Bank. Doughten i\ Camden Assoc Doughty V. Manhattan Brass Go . . v. Savage 379, Douglas V. Gulverwell Douglass r. Branch Bank r. Ferris r. Matting r. Scott 867, Dover v. Robinson Dow v. Clark V. Harkin 336, 341, r. Sanborn r. Tuttle Dowagiae Mfg. Go. r. Schroeder . . Dowie t\ Driscoll 737, Downard v. Hadley Downer r. Bank r. Thompson Downes v. Jennings 393, Do^vney tK Riggs Downing r. Ringer Downs V. Donnelly Dows r. Glaspel V. Perrin V. Swett Doyle V. Dixon r. Union Pacific Go Draheim r. Evison Drake r. Beckham r. Glover V. Goree r. Lauer • V. Siebold V. White Draughan v. Bunting Draycott v. Harrison Dreer r. Pennsylvania Go Dreifus r. Columbian Co 204, Drennan v. Douglas Dressel r. Jordan Dresser r. Dresser ^. V. Norwood lOo, Drew r. Glaggett V. Nimn 43, 100, 104 IK Wheelihan r. Wiswall Driefontein Consol. Gold Mines r Janson Drimmie v. Davies Drinkall V. Movius Bank \GE. 301 387 172 822 101 487 891 323 355 343 180 660 631 276 384 585 872 856 267 345 679 833 584 585 746 391 5G9 605 394 345 399 579 409 302 171 178 673 790 109 88 339 493 402 552 171 97 253 815 411 629 , 176 , 115 342 , 106 292 , 667 427 244 . 488 liv TABLE OF CASES. PAGE. Driscoll V. Carlin 565 V. Winters 382 Drof <,'e r. Alliens 708 Drude c. Curtis 82 Druiff c. Lord Parker.. 312, 637, 638 Drum r. Drum 853 Drumniond v. United States. . 14. 23 r. Van Ingen 620, 652 Drury v. Foster 88, 856, 857 r. Young 180 Dube V. Beaudry 67 Dublin and Wicklow Rv. Co. r. Black ". 73 Du Bois V. Water Works Co 528 Dubose r. Wheddon 81 Dubowski (-. Goldstein 479, 483 Ducker v. Rapp 383 V. Wniitson 217 Duckett r. Cover 897 Dudgeon r. Pembroke 489, 911 Dudley r. Dudley 394, 395 r. Lindsev 157 r. Littlefield 174 r. Odom 470 Duffy V. Hobson 798 Dugan r. Anderson 361 Dugdale v. Lovering 11 Duggan V. Uppendahl 175 Duggar r. Dempsey 339 Dugger r. Bocock 431 Duke V. Clark 285 V. Harper 451 Duker r. Franz 854 Dukes r. Spangler 849 Dulany r. Rogers 641 Du Larans r. Railroad Co 17 Dulo r. Miller 639 Dumont r. Dufore 488 r. Williamson 654 Dunbar r. Dunbar 214 Dunbarton r. Franklin 158 Duncan r. Cashin 887 V. Centra], etc., R. R. Co. . . 306 r. Charles 324 V. Dixon 65, 70 V. Duncan 175 r. Loui.sville, etc 292 V. New York Ins. Co, 612 r. Xiks 119 r. Sylvester 175 r. Topham 884 Duncan's Appeal 393 Duncan. Fox & Co. v. N. and S. Wales Bank 386 Duncklee r. Greenfield Co 282 Duncombe r. Richards 745 Dundas r. Dutens 793 Dundas' Appeal 387 Dundee Works r. Connor 751 Dung r. Parker 120 Dunham r. Averill 914 PAGE. Dunham v. Griswold 729 V. New Britain 524, 520 r. St. Croix Mfg. Co 406 Dunkin v. Hodge 441, 496 Dunks V. Fuller 709 Dunlop r. Higgins 884, 885 Dunmore (Countess of) v. Alex- ander 883 Dunn V. Beaman 786 V. Chambers 749 r. Drummond 501 V. Dunn 739, 741 r. Macdonald 112, 119 V. Record 453, 736, 741 V. St. Andrew's Church 161 V. Steubing 629 r. West 171 Dunnage v. \Miite 750 Dunne v. English 391 Dunnigan, Re 86 Dunning v. Leavitt 272 Dunnock r. Dunnock 395 Dunphy v. Ryan 174 Dunston v. Imperial Gas Light Co 165 Dunsworth r. Wood Machine Co. 346 Dunton v. Brown 63, 66, 67 r. Dunton 196 Duplan Silk Co. v. Spencer 768 Duplex Co. I'. Garden 52 Durant r. Burt 408 V. Crowell 568 V. Roberts & Co 113 'turen r. Getchell 878 Durfee r. .Tones 590 r. O'Brien 177, 789 Durgin r. Dyer 399, 402 Durhnm v. B'ischof 275 r. Durham 99 V. Insurance Co 639 Durham (Earl of) t;. Legard. 611, 667 Durham Bros. r. Robertson 279 Durham Co. r. Guthrie 181 Durkee v. Moses 486 v. Vermont Cent. R. R. Co.. 39 604 Durkin r. Cobleigh 667 Durnherr r. Rau 277 Duryea v. Bliven 415 Dusenbury r. Callaghan 842 Dushane r. Benedict 652, 653 Dustan v. McAndrew 336 Dutch r. Warren 334 Dutton V. Dutton 92, 414 V. Marsh 293 7-. Poole 233 r. Solomson 346 r. Thompson 739 r. Willner 391 Duval r. Wellmnn 464, 503, .505 Duvergier v. Fellows 492 TABLE OF CASES. Iv PAGE. Dwinel v. Brown G33 Dwinnell r. McKibben 384 Dwyer v. Mayor 530 V. Tulane, etc., Adms 304 Dyer v. Brannock 1,58 V. Hargrave.. GG4, GGS, G93, G94 V. Winston 180 Dyer's Case, The 471 Dykers v. Townsend 108, 180 Dykes i: Wyman 728, 731 E. E. C. Dailey Co. r. Clark Can Co.. 197 Eadie v. Slimmon 747 Eads V. Carondelet 46 Eager Co. r. Burke 486 Eagle r. Smith 14 Eagle Fire Co. r. Lent 63 Eagle Ins. Co., Ex parte 898 Eagle Iron Works v. Des Moines By. Co 608 Engle, etc., Machine Co. v. Shat- tiick 171 Eaglesfield r. Marqviis of London- derry 570, 598 Eakin^-. Shultz 203 Eakright v. Torrent 337 Earhart r. Holmes 744 Earl V. Peck 193 Earle r. Angell 4? r. Chace 735 r. Coburn 12 V. Hopwood 454 r. Kins'scote 87 v. Oliver 198 r. Reed 81 Enrlv r. Burt 211 ' r. Mahon 809 East V. Cayuga Lake Ice Co 197 r. Xew Orleans Ins. Assoc. 271 r. Wood 684 East Lincoln v. Davenport 135 East Line Co. /•. Scott 170 East London Waterworks Co. r. Bailey 102 East St. Louis v. Freels 402 Easter r. Railroad Co 301 v. White 171 Eastern Advertising Co. r. Me- Gaw 595 Eastern Arkansas Fence Co. r. Tanner 337 Eastern Counties Rv. Co. r. Hawkes ' 902 Eastern Granite Co. v. Heim 550 Eastf^rn Townshin Bank r. Beebe. 877 Eastland v. Sparks 346 Eastman r. Miller 204 r. Plumcr 753 r. Wri-undson r. Penny... 250. 253. f>R'> ^■Uow V. Hudson. . 717 Edward r. Estelle 790 Ivi TABLE OF CASES. PAGE. Edward Hines Lumber Co. v. Al- ley 360 Edward Thompson Co. v. Baldwin. 864 Edwards, Re 4G1 Edwards r. Aberayron, etc., So- ciety 448, 449 V. Bedford Chair Co 384 r. Brown 586 r. Burt 763 r. Carter 65 r. Clements 259 r. Davenport 100, 101 r. Fairbanks 141 r. Frv 791 r. Gasoline Works 136, 296 f. Gildermeister 112 r. Golding 112 r. Hancher 834 V. ]\IcEnhill 893 r. McLean 531, 673 r. Mattintrly 872 r. Mevrick 743 V. Xeison 109 r. Noel 60S r. Eandle 438, 430 V. Roberts 709 V. Sheridan 89 V. Skirving 492 V. Thomas 291 V. Walters 816, 918 V. Weeks 81/ Edwards Brokerage Co. v. Steven- son 408, 409 Efiinger v. Kenney 431 Egan v. Guardians of Kensington Union 804 Eeerton r. Earl of Brownlow 421 422, 423, 425, 4.34 Egser r. Nesbitt 30, 39, 43, 45 Eggleston r. Morrison 261 r. Wagner 43 Ehrensperger v. Anderson 339 Ehrlich r. .Etna L. Ins. Co 337 Elirman v. Bartholomew 480 V. Insurance Co 140, 141 Eicholberger r. Morris 383 Eidolin r. Clarkson's Exrs 788 Eidenmiller, Re ^86 Eingartner v. Illinois Steel Co.. 781 Eisel r. Haves 468 Ekerly r. McGee 890 Elbinger Actien-Gesellschaft i . Claye 109 Elder r. Chapman 339 r. Elder 034 Eldredge r. Walker 388 Eldridge r. Dexter, etc., Co 584 Elerick ?•. Reid 692 Elev I". Positive Assurance Co... 177 235, 243 PAGE. Elgin c. Hall 87;i Elias /;. Enterprise Assoc 101 Eliason v. Henshaw 2C, 43 Elizabeth r. Force 86G Elkhart County Lodge v. Crary . . 436 Elkin r. Timlin 171 Elkins r. Parkhurst 399 r. Railroad Co 135 Ellen r. Topp 551, 826 Ellerman r. Chicago, etc., Co. 140, 375 Ellesmere Co. v. Cooper.... 858, 871 872 Ellett V. McGhee 2(3* Ellicott r. Turner 177 V. White 602 Elliman Sons & Co. v. Carrington & Son 477 Elliot r. Ince 102, 103 Elliott V. Blair 809, 870 r. Dazey 830 r. Gower 891 v. Levings 867 v. jlcClelland 452 i: Richardson 445 r. Roval Exch. Assur. Co. . 448 449 r. Sackett 639 r. Swartwout 731 Ellis v. Andrews 692 r. Barker 748, 760 r. Clark 9 V. Harrison.. 247, 257, 267, 272 r. Midland Ry. Co 559 f. Smith 452 r. Staples 876 r. Wilmot 384 Ellison r. Mobile, etc., R. Co 873 Elliston V. Berryman 495 Ellsworth r. Fogg 844 r. Randall 123, 592 Ellwood r. ]\Ionk 258 Elmore r. Johnson 453 V. Sands 53 Elphinstone (Lord) r. Monkland Iron and Coal Co 632 Elrod r. ]\Ieyers 77 Elstner v. Fife 569 Elston V. .Jasper 101 Eltham r. Kingsman 422 Elting V. Vanderlyn 214 Ehvell i\ Chamberlain 701 V. Martin 84 r. Mersick 115 r. Walker 794 r. \^'ilson 451 Elv r. Early 640 — ^ V. Elv ' 533, 874 V. Ormsbv 782 r. Stewart 693 i\ Webster 4o6 TABLE OF CASES. Ivii PAGE. Elysville, etc., Co. i: Okisko Co. . 161 Elyton Co. r. Hood .384 Emanuel r. Dane 335, 33G Embler f. Hartford Ins. Co 277 Embrey r. Jemison 400 Emerson r. Opp 85li V. White 623 Emery i\ Burbank 782 i\ Darling 407 V. Kempton 495 r. Ohio Candle Co 468, 498 oOO V. Smith 177 Emery's Sons v. Bank 302 Emiey v. Perrine 281 Emmersoii (;. To^vnsend 492 Eminerson's Case 013 Emmitt v. Brophy 258, 274, 270 Emmitt.sburg r. Donoghue 215 Emmons v. Alvord ? 392 V. Murray 67 Empire Transportation Co. v. Steele 302 Emporia Bank i\ Shotwell 592 Express Engineering Co 121, 234 235, 243, 244 Empson's Case 588 Enders r. Enders 402 Endriss v. Belle Isle Ice Co 204 Engbretson v. Soiberling 211 Engel r. Brown 778 Engesette v. McGilvray 361 Engine Co. r. Green 27 England r. Davidson 23, 205 V. Downs 392, 393 Englebert r. Troxell 66, 68, 77 Englehart r. Clanton 704 English V. Porter 104 r. Young 409 English's Exr. v. :\IcNair's Admr. 622 English and Iioreign Credit Co. v. Arduin 46 Enloe r. Hall 112 Ennis r. Burnham 744 r. H. Borner & Co 681 r. Pullman 211 Eno r. Dunn 419 Enoehs-Havis, etc., Co. t?. New- comb 281 Enos i\ Sanger 262, 265 Ensel r. Levy 700 Ensminger r. Horn 14 Ensworth r. King 56 Episcopal Mission v. Brown.. 272. 273 Eppens r. Littlejohn 523, 559 Epperson r. Nugent 79 Epstein. Re 699, 708 Equitable Ass'n r. Brennan 302 Equitable As^ur. Soc. v. McElroy. 658 Equitable ^^o. r. Hersoe ". . 708 Equitable Ins. Co. r. Hearnc 641 PAGE. Erary v. American Rubber Co. . . . 51 Erb r. Brown 204 Erickson r. First Bank 859, 866 V. Fisher 0U5 Erie Ev. Co. ads. Union L. & E. E. Co 482 Erie Ey. Co. r. Winter's Admr.. 53 Erkens r. Xicolin 579 Erlanger v. New Sombrero Phos- phate Co 676, 724, 730 Ernest r. NichoUs 89!> Ernst V. Crosby 486.487 Errington, L'c 260 Erskine v. Adeane. 173, 313, 533, 921 r. Phmimer 173, 784 Erwin r. Erwin 49 r. ]\Iyers 664, 668 Esch r. Home Ins. Co 642 r. Wliite 171 Esham r. Lamar 751 Eshleman r. Lightner 008 Espert r. Wilson 753 Espey r. Lake 745 Esposito r. Bowden.... 426, 428, 429 514 Essex r. Day 63!> r. Insurance Co 636 Essley r. Sloan 27.^ Estabrook v. Smith 624 Esterly Co. r. Pringle 204 Estes i: Reynolds 721 Estill r. Eogers 158 Etter r. Greenwalt 25.3 Etting r. Bank 061 Eubanks r. Banks 507 Euneau r. Rieger 452 Eureka v. Gates 639 Eureka Co. r. Bailey Co 100 r. Edwards . .' 08 Eureka Iron Works r. Bresnahan. 140 Evans, Re 461 Evans v. Bell 199 r. Bicknell 915 /•. Bremridge 602 r. Carrington 417, 678 r. Edmonds 672. 082 r. Ellis 730, 741 r. Evans 444 r. Foreman 854, 856 V. Hoare 180 r. Green 174 r. Lee 160 r. Llewellyn 765. 766 r. Partin 858, S72 r. Powis 834 r. Prothero 799 r. Sheldon 880 r. Smallcombe 90O r. Trenton 498 r. Wain 108 r. Williimson 853 Iviii TABLE OF CASES. PAGE. Evan's Appeal 579 Evans, etc. v. McFadden 157 Evanturel c. Evanturel 424 Eve c. Rogers 120 Evelyn r. Chichester 73 Everet r. Williams 374, 500 Everhardt v. Searle 388, 389 Everhart v. Dolph 180 v. Puckett 444 Everhart's Appeal 174 Everingham r. Meighan 407 Everitt v. Everitt 739 Ever man v. Herndon 182 r. Hyman 123 V. Piron 775 Eversole i: Maule 295 Everson v. International Granite Co 606 Everstein v. Gerstenberg 300 Ewell V. Daggs 61 Ewer V. Jones 244, 252 Ewing V. Bass 735 r. Grouse 628 r. Ewing 828 r. Smith 891 r. Toledo S. B. & T. Co. . . . 141 Ewins v. Gordon 627, 029 Exchange Bank v. Gaitskill 703 r. Rice 257, 259 Exhaust Ventilator Co. r. Chicago, etc., Ry. Co . 51 Express Co. v. Haynes 54 r. Moon 54 r. Stettaners 54 Express Pub. Co. v. Aldine Press. 854 Exter V. Saw-jer 389, 076 Exton r. Scott 55 Evre v. Potter 749 Ezell V. King 199 F. Fabacker v. Bryant 408 Faine v. Brown 754 Eairbank Canning Co. v. Metzger. 008 053 Fairbanks r. Bank 378 V. Riciiardson Drug Co 538 V. Sargent 281 c. Snow 727, 728, 729 I'airchild r. Feltman 258 r. Mc:\Iahon 690, 701 r. North Eastern Assoc... 276 V. Philadelphia R. Co 508 Fairfax r. Fairfax's Ex 776 Fairhurst r. Liverpool Adelphi L. Assoc 87 Fairlie r. Fenton 108 Fairplay r. O'Neal 49 Falcke r. Gray 754 PAGE. Falk i\ Curtis Pub. Co 130 Falkingham v. Victorian Ry. Conirs 879 Fallis V. Insurance Co 630 V. Keys 890 Falls Wire Mfg. Co. v. Broderick. 43 Fane r. Fane 674 Fanning r. Russell 241 Fant V. Miller 434 Fanton r. Middlebrook 780 Fare v. John 18 Fareira r. Gabell 406, 407 Farewell v. Coker 025 Fargo I'. Arthur 14 Fargo Coke Co. v. Fargo Electric Co 695 Fergusson r. Winslow 731 Farina v. Fickus 50 Farley r. Cleveland 241, 258 V. Parl?er 101 Farlow r. Kemp 257 Farmer r. Farmer 735 V. People's Bank 292 V. Rand 800, 800 Farmer's Ex. r. Farmer 743 Farmers' Assoc, v. Scott 703 Farmers' Bank r. Myers 802, 803 Farmers' etc.. Bank v. Railroad Co 141 Farmers' Co. v. Bazore 880 Farmers' L. & T. Co. v. Galesburg. 342 Farmers' Trust Co. r. Floyd. 119. 120 V. Siefke 872 r. Wilson 100 Farmington v. Hobert 109, 270 Farnam r. Brooks 104, 743 Farnham r. Benedict 137 Farnsworth r. Cotts 383 r. Duffner 094 V. Sharp 874 Farnum v. Patch 296 Farquharson r. King 719 Farrar -v. Bessev 90 V. Churchill 093 V. Farrar 849 r. Toliver 815 V. Walker 720 Farrell v. Lovett 291 Farrer r. Nightingale 334 Farris V. Richardson 86 Farrow v. Wilson 223, 543 Farson v. Fogg 436 Farwell -v. Hanchett 679 v. INIyers 70S Farwell Co. v. Hilton 708 Fassett v. Mulock 282 V. Ruark 659 Faulkner r. Faulkner 243 Faurie r. Morin's Svndics 438 Faviell V. E. C. Ry.'Co 165 TABLE OF CASES. lix PAGE. I Fawcett v. Freshwater 206 V. Osborn 507 V. Whitehouse 674 Fawcett and Holmes, Re 663 Fay V. Burditt 101 V. Oatley 441, 442 V. Oliver .... 339, 343, 344, 715 V. Sanderson 238 r. Slaughter 443 r. Tower 384 Fayette Land Co. v. Railroad.... 141 Fear v. Jones 605 Fearn v. Mayers 596 Fearnley r. De Mainville... 377, 437 Fearon v. Earl of Aylesford 417 Fears v. Sykes 781 Fechlieimer i\ Baum 6'Mt r. Pierce 892 Feenev v. Bardsley 345 Fegley r. McDonald 386 Fehlberg v. Cosine 600 Feineman r. Sachs 480 Feist r. Schiffer 258 Felch V. Taylor 248, 249, 253 Feldman v. Gamble 378 r. McGuire 258, 271 Felix r. Griffiths 531 Fellowes r. Lord Gwydyr. . . 117, 118 r. Steamboat Co 106 Felthouse v. Bindley 29, 42 Feltmakers, Co. of v. Davis 232 Felton V. Dickinson 248, 249, 253 Fenn i\ Union Co 271 Fenner r. Tucker 470 Fenness r. Ross 376 Fennessey r. Fennessey 394, 395 Fenton r. Clark 545, 548 r. White 81 Fenwick r. Grimes 689 Ferebee r. Pritchard 393, 395 Fereira v. Savers 544 Feret r. Hill 488, G79 Ferguson v. Bobo 82, 83 Ferguson v. Carrington 679, 707 Ferguson r. Coleman 405 r. Harris 199 V. Lowery 736, 740 r. Oxford Mercantile Co 141 Ferguson's Succession 261 Fergusson r. Norman 403 Fernald i\ Gilman 177, 789 Ferrand r. Beshoar 892 r. Bischoffsheim 113 Ferre Canal Co. v. Burgin 46 Ferrell r. Maxwell 171 Ferrier r. Storer 30, 39 Ferris r. Adams 438 V. American Brewing Co. . . 249 255, 469 V. Carson Water Co.... 249, 254 268 PAGE Ferris v. Cranford 275 V. Hoglan 335, 342 V. Irving 100 r. Snow 110 r. Spooner 361 Ferry v. Moore 110 r. Stephens 211, 813 Fessenden v. Ockington 640 Festerman v. Parker 204 Festing r. Hunt 339, 344 Fetrow r. Wiseman 66 Fickus, Re 49, 650, 918 Fidelity Assoc, v. Dewey 382 Fidelity Co. c. Lawler 171 V. Railroad Co 160 Field V. Chipley 430 r. Moore 65 r. Stagg 855, 856 v. Stearns 710 V. Woods 873 Fields V. Helms 030 Fife V. Clayton 635 Figlitmaster r. Levi 729 Filbert v. Philadelphia 528, 5.30 Filby V. Hounsell 44, 47, 179 Filgo r. Penny 590 Fillieul V. Armstrong 327 Filson's Trustees v. Himes...438, 483 Financial Corporation's claim.... 288 Finch v. Finch 792 V. Mansfield 432, 886 V. Simon 813 Findlay r. Pertz 392, 43G Findley r. Hulsey 727 Findon v. Parker 460 Fine r. Rogers 816 Finlay v. Bristol and Exeter Ry. Co 163, 168 V. Chirney 223, 547 Finucan r. Kendig 739 Fire Alarm Co. i\ Big Rapids. ... 51 Fire Assoc, v. Rosenthal 529 Fire Ins. Assoc, v. Wickham. .. 9, 211 625 Firestone v. Firestone 387 First Bank, Re 892 First Bank v. Buchanan 384 r. Chalmers 170 V. Drevr 654 V. Fricke 859, 800 r. Gerke 382 V. Hayes 606 V. Hendrie 437 r. Johns 867 i\ Leppel 498 V. Marshall 813 V. Payne 801 r. Perris 285 r. Ryan 869 r. Sowles 180. 704 r. Thomas 775 ■ r. Watkins 731 \x TABLE OF CASES. PAGE. First Bank v. Webster 868 ( . \\ei(lonbeck . . . 859, 862, 863 V. Woodman 778 V. Zeinis 587, 868 First Churcli r. Donnell 186 r. Gillis 187 V. Pungs 187 r. Swanson 180 First Nat. Bank v. Clark 285 r. Mack 873 r. Oskaloosa Packing Co. . . 406 r. Pipestone 257 r. Smith 404 r. Spear 324 r. Watkins 22, 35 Firth r. Midland Ry. Co 549 Fischer v. Hope Mut. Life Ins. Co. 271 277, 363 V. Kamala Naicker 400 Fish V. Cleland 688, 745 V. Hayward 264 Fishack v. "Ball 634 Fishback v. Miller 697 Fishburne v. Ferguson 733 Fishell r. Gray 483, 484 Fisher v. Bishop 733, 737 V. Bridges 490, 491, 492 V. Budlong 683 v. Fisher 408 V. Hildreth 501 r. Knox 282 r. Koontz 444 V. Lighthall 673 r. Liverpool Marine Insur- ance Co 796, 797 r. Lord 432, 486 r. May 578 V. Mel-chants' Ins. Co. . .448, 449 V. INIershon 844 r. X. Y. Com. Pleas 689 r. Seltzer 15 r. Smith 827 r. White 263 r. Wilmoth 257 r. Worrall 118 Fisher's Appeal 387 Fisher & Co. r. Apollinaris Co. . . 442 Fisherdick r. Hutton 853, 806 Fi.sheries Co. r. Lennen 468 Fishkill Sav. Inst. r. Bank 701 Fishmongers' Co. r. Robertson. . 159 166 Fisk V. McGregory 170 t\ McNeal 864 Fi.sk"s Claim 866 Fiske r. Insurance Co 656 Fitch r. Chandler 257 r. Fitch 459 I'. Johnson 300, 301 r. Jones 405, 407, 522 i\ Reiser 744 PAGE- Fitch V. Snedaker 14 V. Sutton 83S Fitler v. Commonwealth 110 Fitts i\ Hall 82 Fitz V. lies 480 Fitzgerald v. Allen 337 r. Barker 261, 272 V. Chapman 93 p. First Bank 573 r. McClay 249 r. Vestal 459 Fitzliugh r. Jones 45 Fitzpatrick v. Fitzpatrick 856 V. School Commrs 443 Fitzsimmons r. Joslin 700 Fivaz V. Nicholls 498 Fivev 1'. Pennsvlvania R. Co 725 Flach V. Gottschalk Co 102 Flagg V. Baldwin 406, 50S r. Mann 631 Flaherty r. Gary 377, 439 Flanagan r. Hutchinson 257 Flanders r. Abby 892 r. Blandy 219 V. Doyle 275 V. Fay 206 V. Wood 470 Flandrau v. Hammond 654 Flannegan v. Crull 109 Flannery v. Jones 684 Flash r. American Glucose Co. . . . 608 Flavell, Re, 242 Fleckner r. Bank 161 Fleet r. Murton 105, 111 V. Perrins 89 Fleetwood r. Brown 612 r. Hull 299 Fleming v. Hanley 716 V. King 531 V. Ramsey 215 Flesh V. Lindsay 87 Fletcher r. Ashley 393 V. Cole 342 r. Fletcher 55 r. Gamble 385 r. Harcot 495 r. Hickman 463 r. Minneapolis Ins. Co.. 852, 850 i\ Peck 515 V. Warren 413 r. \\'ebster 880 Flickinger i: Saum 249, 253 Flight V. Bolland 66, 71 r. Booth 611, 663 V. Reed 72, 809, 912 Flinn r. Brown 854 r. Carter 813 i\ Mowry 30& Flint i\ Cadena.sso 264- i-. Clinton Co 100 V. Gilpin 540. TABLE OF CASES. Ixi Flint V. Pierce 257, V. Woodin Florence Cotton Co. t'. Field Florence R. Co. c. Bank Florida Central Co. v. State Flory r. Hauck 792, Flower v. Barnekoff V. Brumbach V. L. & N. W. Ry. Co V. Sadler Floyd v. Calvert i\ Ort 257, V. Patterson Fluharty v. Mills Flureau r. Thornhill Fly r. Brooks Flynn v. Insurance Co V. Mass. Ben. Assoc Foakes v. Beer 211, Fogel V. Church Fogg V. Blair V. Boston «fe Lowell R. Co.. v. Griffin I'. Portsmouth Athenaeum . . Fogg's Admr. r. Rodgers .... 05.1, Foley r. Crow G29, V. Felrath — : — V. Greene V. Piatt V. Speir 438, Foley Co. r. Solomon Follansbee r. Adams V. Johnson 238, V. O'Reilly Follett i\ Brown i\ Buyer Folmar r. Siler Folsom r. Insurance Co Folty V. Ferguson Folt'z r. Wert Fonner r. Smith 257, Fonseca v. Cunard S. S. Co. . . 53, Fooks v. Lawson Foote V. Cincinnati I". Emerson r. Hambrick V. Nickerson Forbes r. Cochrane V. McDonald 377, i\ Sheppard i\ ^avlor V. Watt Forbes & Co.'s Claim Forchheimer v. Hollv 431, Ford c. Beech.. 317," 813, 814, 833, V. Bell V. Car>^?ron Bank l\ Cotesworth V. Crensliaw V. Finney 250, ■■ V. Ford 735, AGE. 259 084 810 144 437 794 174 708 75 441 158 271 498 174 Oil 610 276 242 212 467 725 130 701 11 654 664 28 747 205 483 874 361 261 388 70S 286 585 657 68 174 207 507 878 532 377 854 415 510 439 383 853 659 798 836 290 863 530 210 261 866 PAGE. Ford V. Garner 210 r. Harrington 505 V. Hennessy 746, 768 r. Hurd 566 r. Joyce 640 r. Newth 196 i\ Olden 751, 768 r. Phillips 69 V. Stier 685, 727 f. Tilev .... 358, 363, 364, 365 V. White 284 T. Williams 112 P'ord and Hill, Re G73 Fordyce v. Kosminski 868 Foreman r. Bigelow 706, 720 Forepaugh r. Delaware R. Co.... 508 Forget V. Ostigny 408 Forinquet v. Tegarden 495 Foiman r. The Liddesdale 345 Forman v. Wright 580, 759 Formby v. Barker 301 V. Pryor 434 Forney v. Shipp 114 Forrer v. Nash 354 Forrest v. Hart 501 Forrest r. Manchester, etc., Ry Co. 897 Forshaw v. Chabert 852 Forster i\ Green H V. Taylor 402 Forsythe v. Bonta 443 Fort' r. Allen 879 r. Wells 565 Fort Dearborn Bank r. Carter 698 Fort Payne Co. v. Webster . . 323, 354 Fort Wavne Co. r. Miller 187 Fort Worth City Co. r. Smith Bridge Co 140 Fortenbury v. State 408 Fortier v. Bank 142 Fortunato v. Patten 281 Forward r. Armstead 216 Fosdick r. Fosdick 416 Foshay v. Ferguson 728 Foss r. Cummings 407 Foss, etc., Co. r. Bullock 350, 360 Fossett V. Wilson 730 Foster v. Bartlett U2 V. Bear Valley Co 791 r. Boston 27 r. Cockerell 281 r. Dawber . . 816, 818, 819, 820 r. Graham 112 r. Hanchett 677 r. Jacks 451 r. London, etc.. Ry. Co 140 V. Lookout Water Co 254 r. Mackinnon .... 585, 588, 619 r. Marsh 269 r. Means 98 r. Metts 215 r. Peyser 673 Ixii TABLE OF CASES. PAGE. Foster v. Purdy 813 r. Redgrave 77 V. The Richard Busteed.... 870 r. Thurston 486 r. Wheeler 2, 51 Foulkes V. Metro. Dist. Ry. Co . . . 569 Fountain v. Harrington 879 Fountain iSpring Co. v. Roberts. . . 392 Fountaine v. Carmarthen Ry. Co. . 898 Fourth Street Bank r. Yardley. . . 894 Foust V. Bd. of Publication 42 r. Renno 865, 806 Fowell c. Forrest 812 Fowkes V. Manchester and London Assurance Assoc 309 Fowle r. Park 409 Fowler r. Bott 531 V. Brooks 206, 384 r. Collan 452 c. Fowler 039 r. Hollins 565 '■. McCann 693 r. Monmouthshire Canal Co. 800 f. Smith 837 i: Water Co 254 r. Woodward 023 Fox r. Bank 291 r. Davis 415 r. Kitton 353, 301 f. Xott 303 r. Rogers 493, 495 r. Tabel 113, 117 /■. Turner 30 r. Webster 079 Foxworthy v. Colby 860 Fov r. Houghton 693 Fradley i: Hyland 115 Frailey's Adm. v. Thompson 11 Fraker r. Cullum 856 V. Little 575, 850 Fraiey's Appeal 281 Fram.e r. Coal Co 114 Francis r. Deming 829 Francisco v. Shelton 263 Franco-Texan Co. v. Simpson.... 010 Frank v. Bobbitt 508 r. Eltingham 179 r. Hoey 886 r. Ingalls 53 (". Lanier 054 r. Lilienfeld 292, 889 r. Miller 182 Franke r. Hewitt . 46 r. Riggs 700 Franklin r. Baker 874 r. Brown (73 r. Franklin 416 r. Miller 325, 339, 341 Franklin Av. Germ. Sav. Inst. r. Board, etc.. of Roscoe 141 Franklin Bank v. Severin 820 PAGE. Franklin Bridge Co. f. Wood.... 140 Franklin Co. v. Lewiston Inst, for Savings 142 Franklin Min. Co. r. O'Brien 390 Franks, Ex parte 91 Frantz v. Brown 284 Franz v. Bieler 483 Franzen v. Hutchinson 508 P'rary r. Sterling 177 Fraser v. Ehrensperger 878 Fraser v. Gates 177, 789 r. Hatton 204 V. Hill 493 Frazee r. Frazee 87 Frazer v. Fulcher 91 Frazier r. Gelston 88 v. Jeakins 387 V. Moore's Admr 877 V. Thompson 484 Frear v. Hardenbcrgh 174 Fred Heim Co. v. Hazcn 861 Fredenburg v. Turner 549 Fredericks r. Fasnacht 46 Freed v. Brown 101 Freedley v. French 585 Freedman v. Provident Ins. Co... 658 " Freedom," The 303 Freeland r. Compton 384 Freeland v. Williams 157 Freeman, Re 837 r. Auld 275 r. Bernard 877 r. Boland 84 r. Bridger 79 r. Cooke 649 V. Curtis 581 V. Foss 178, 790 r. Freeman 791 r. Hartman 393 r. Jeffries 715 r. Pa. R. R. Co 258, 259 Freeman Imp. Co. v. Osborn 226 Freer v. Walker 89 Freeth v. Burr. .328, 329, 330, 333, 339 340 Freichnecht r. !Meyer 576 Fremont Foundry Co. r. Norton. . 839 French v. Arnett 625 V. Burns 631 r. New 879 V. Price 116 V. Richards 531 r. Ryan 692 V. Shoemaker 728 V. Vix 277 Frend v. Dennett 167 Freshfield's Trusts, Re 281 Fresno Canal Co. v. Dunbar. . 301, 361 Fresno Milling Co. v. Fresno C. & I. Co 536 Frevman v. Knecht 603 TABLE OF CASES. liiii PAGE. Friar v. Smith 388 Frick V. Joseph 834 Friedlander r. Texas, etc., Ry. Co. 302 Friedman c. Bierman 415 Friend c. Miller 440 V. Woods 535 Fripp V. Fripp 753 Fritts v. Palmer 141 Fritz i\ Commissioners 854 V. Finnerty 388 Fritz's Est., Re 459 Fritzler v. Eobinson G12 Frizzell v. Rundle 565 Froelich v. Froelich Trading Co. . 110 Frontenac Loan Co. r. Hysop .... 260 Frost V. Gage 379, 380 L\ Knight . . ..20, 348, 360, 3G5 367, 368, 394 r. Steele 786 r. Tarr 176 Fry c. Insurance Co 22 r. Lane 751, 759, 764 Frybarger v. Simpson 501, 502 Fryer v. Rishell 88 Fuentes v. :\lontis 302 Fugate V. Hansford's Ex 180 Fngure r. Mut. Soc. of St. Joseph. 250 Fullalove r. Parker 800 Fuller r. Bartlett 88 r. Brown 545 L\ Dame. .377, 425, 437, 464, 466 r. Davis 558 r. Green 866 V. Hooper 110 r. Kemp 21 1 r. Leet 886 r. Parmenter 459, 460 r. Parrish 631 V. Rice 790 r. Steiglitz 286, 508 Fuller, etc., Co. v. McHenry 893 Fullerton r. Sturges ". . 853, 867 Fulmer r. Seitz 857 v. Wightman 259, 273 Fulton r. Andrew 585, 734, 914 r. Colwell 640 r. Day 515, 809 r. Whitney 387 Funk v. Gallivan 399 Fuqua r. Pabst Co 469 Furguson r. Bond 850 P'urman r. Parke 14 Furnas r. Durgin 270 Furnival r. Combes 122 Furtado r. Rodgers 427 Futrell V. Vann 595 G. Gaar i. Green 204 Gabbert r. Schwartz 292 Gabell v. S. E. Ry. Co 54 PAGE. Gabriel r. Dresser 8:32 Gadd V. Houghton Ill Gaffney v. Hayden 07 Gage V. Allen 579 V. Ames 87G r. Bissell 174 V. Downey 452 r. Du Puy 452 r. Fisher 377 Gage V. Lewis 689 r. Riverside Trust Co 775 Gaines v. Transportation Co 54 Gaines' Adm. r. Poor 418 Gainesville Bank v. Bamberger. . . 699 Gainor v. Gainor 393 Gaither r. Dougherty 878 Galbraith v. Lunsford 88 v. McLain 459 Gale r. Gale 231 r. Nivon 343 Gale Mfg. Co. r. Stark 608 Galena r. Corinth 140 Galena, etc., R. v. Ennor 28 Gall r. Gall 158, 4615 Gallagher v. Button 673 i\ Gallagher 790 r. Hathaway, etc., Corp.... 10 v. Nichols 549 Gallaher r. Lincoln 438 Galley v. Galley 789 Galloway r. Bartholomew 874 V. Mayor of London 138 Gallup r. Bernd 61u Galton V. Emuss 470 Galusha v. Galusha 415, 417 Galvin v. Prentice 789 Galway v. Shields 786 Galyon v. Ketchen 528 Gamble v. Wilson 299 Gambs v. Sutherland's Est 486 Gammaye v. Moore 636 Gammill v. Johnson 695- Gammon v. Blaisdell 524, 525 Gammons r. Gulbranson 452 V. Johnson 452 Gandell v. Pontigny 337 Gandolfo r. Hartman 430 Gandy v. Gandy 241, 243 V. Macauiay 626 Gano r. Farmers' Bank 661 V. Heath 862 Gany, Re 697 Gariaerino V. Roberts .. 324, 354, 361 Garbracht r. Commonwealth 886 Garbutt r. Bank 679 Gardiner v. Harback . . . 856, 857, 865 V. Menage 576 7'. Morse 470 Gardner v. Allen's Ex 114 r. Arnett 547 r. Case 729 JXIV TABLE OF CASES. PAGE. Gardner v. Caylor 573 c. Cazenove 631 V. Clark 332 r. Gardner 844 r. Lane 590, 603, G19 V. Newman 878, 879 r. Ogden 387 i\ Raisbeck 876 r. Tatum 402 r. Van Nostrand 385 r. Walsh 857, 862, 803 i: Watson 383 Garland v. Carlisle 566 r. Garland 414 V. Pamphlin 891 v. Wells 586 Garnett i: Farmers' Bank 383 V. Macon 663, 753 Garnons (Doe d.) v. Knight ... 6, 55 Garnsey v. Mundy 739 V. Rogers 256, 266, 274 Garrard v. Frankel 600, 644 - r. Haddan 868 r. Lauderdale 239 V. Lewis 867 Garretson v. North Atchison Bank. 40 Garrett v. Pierson 776 v. Trabue 106 Garrett's Adm. v. Garrett 787 Garrey v. Stadler 802 Garrison r. Burns 492 V. Technic Works 692, 701 Garst V. Hall & Lyon Co 298 V. Harris 469, 633 Gartrell v. Stafford 180 Garver i\ Miller 92, 416 Garvey v. Jarvis 837 Garvin V. Linton 809 ■ i\ Mobley 257, 276 ■ V. Williams 736, 737, 740 Gary r. Newton 459 Gas & Fuel Co. v. Diary Co 140 Gas Light and Coke Co. r. Turner 485, 487 Gascoyne v. Edwards 878 Gashwiler v. W'illis 125 Gaslight Co. v. Lansden 130 Gasque v. Small 753 Gass V. Stinson 382 Gasser v. Sun Fire Office 448 Gassett v. Glazier 377 Gaston v. Drake 438 Gastonia v. McEntee-Peterson Co. 254 Gates City Co. r. Post 704 Gates v. Goodloe 514, 531 r. Green 531, 534 V. Raymond 713 V. Renfroe 461 V. Finning 405 Gatling v. Rodman 88 Gatt's Ex. V. Swain 187 PAGE. Gaullagher t'. Caldwell 282, 284 Gault c. Brown 176 Gause r. Clarksville 146 Gaussen v. United States 383 Gautzert v. Hoge 276 Gavagan v. Bryant 589 Gay V. Gillilan 736 V. Witherspoon 749 Gaylord v. Pelland 636 i: Soragen 432, 486 Gear i\ Gray 552 Gebhard r. Garnier 157 Geddes i: Blackmore 867, 872 Gee v. Hicks 789 Geer r. Frank '. . 451 V. School Dist 137 Geere v. Mare 491 Geier v. Shade 442 Geiger r. Blackley 891 Geipel v. Smith. .' 428, 542, 547 Gelpcke r. Dubuque 482 General Electric Co. v. Wise 490 Genereaux v. Sibley 68 Genet r. Delaware Canal Co 708 Gennert r. Ives 702 George v. Andrews 263, 264 V. Clagett 114 v. East Tenn. Co 469 r. Hoskins 171 Georgia Medicine Co. r. Hyman. . 584 Gerber V. Wabash R. R. Co 495 Gerhard v. Bates 704 Gerhart Realty Co. v. Northern Assur. Co 834 Gerlach r. Redinger 892 V. Skinner 483 Gerli r. Poidebard Silk Co 332 Germain Fruit Co. v. Western Union Tel. Co 004 German r. Gilbert 185 German, etc., Assoc, r. Droge. . . . 335 German Bank v. Dunn 856, 859 German Saving Soc. l\ Lashmutt. 101 Gerner v. Yates 683 Gerrish v. Glines 865 Gettv i: Devlin 389 "- r. Peters 345 Gettysburg Nat. Bank v. Chis- holm 853, 866 Geurinck t\ Alcott 498 Ghegan f. Young 299 Ghent r. Adams 112 Gibbins r. N. E. Metropolitan Asvlum District 46 Gibbon r. Budd 802 Gibbons r. Bente 187, 349 V. Gibbons 444 V. Grinsel 187 V. Proctor 14, 21 V. Vouillon 814 Gibbs V. Consolidated Gas Co. of Baltimore 399, 406, 468 TABLE OF CASES. Ixv PAGE. ■Gibbs V. Harding 410 V. Linabury 585 V. Penny 6.31 c. Smith 470 Gibson V. Cranage 51 r. Daniel 206 r. D'Este 671, 072 l: E. I. Co 165 V. Gibson 844 V. Holland 180 V. Jeyes 734, 736, 741 V. Kirk 167 V. Pelkie 612 V. Perry 531 r. Powell 879 V. Soper 101, 102 i\ Spear 82 Giddings v. Baker 683 f. Eastman 513 r. Giddings' Adm 193 Gidley i\ Lord Palmerston 112 Gieve, Re 408 Giffert r. West 054 Giflford I'. Corrigan 261, 264 266, 274 V. Dyer 914 V. Father Matthew Soc 272 V. Willard 787 Gilbert v. Anthony 855 r. Baxter 43 V. Bulkley 850 r. Carhin . . . ^ 83 r. Finch 377 V. Lewis 725 t\ Peteler 302 V. Sanderson 257, 274 V. Sykes 422 r. Thompson 870 I'. Wetherell 844 Gilbert-Arnold Co. v. Superior... 460 Gilbert, etc., Co. r. Butler.. 536, 517 "0 Gilchrist, Ex parte 95. 98 V. McGee 175 I'. Williams 776 Giles r. Edwards 334, 550 — ; — V. Paxson 51 V. Williams 725 Gilgallon r. Bishop 102 Gilkerson-Sloss Co. v. Salinger... 893 Gilkes (7. Leonino 27 Gilkeson Co. r. Bond 452 Gill V. Bradley 627 v. Hopkins 864 V. Weller 271 Gillard v. Brittan 335 Gillaspie r. Kelley 8(i7 Gilleland v. Failing 461 Gillespie, In re 281, 282 r. Bailev 69 V. Battle 788 V PAGE. Gillespie r. Darwin 386 V. Moon 034 Gillett V. Sweat 800 Gillette v. Smith 859, 870 Gilliam v. Alford 579 V. Brow n 498, 500 Gilliland v. Phillips 515 (HlHs r. Goodwin 67, 68 Gilman r. Jones 450 Gilmore v. Lewis 14, 205 r. Williams 608, 655 r. Woodcock 501 Gilroy i\ Ali.? 600 Gipps Brewing Co. v. De France . . 39 886 Girard v. Taggart 363 Girdner v. Gibbons 866 Girty i'. Standard Oil Co 729 Gisaf V. Neval 413 Gist V. Western Union Tel. Co. . . 408 508, 512 Gittings V. Mayhew 186 Givan v. Ma.'^terson 745 Givtn's Appeal 492 Glass V. Hulbert 634, 791, 792 Glass Co. V. Mathews 382 Gla.'^.scock V. Glasscock 214 Gla.sspoole v. Young 566 Glazebrook v Woodrow 326 Gleason v. Alien 832 V. Hamilton 853 Glen r. Fisher 253 r. Hope Mutual L. I. Co . . 249 277 Glencoe Lime Co. v. Wind.. 249, 251 253, 267 Glenmavis, The 508 Glenn v. Marbury 278, 279 r. Mathews 377 r. Rossler 335 Glcns Falls Gas Light Co. v. Van Vranken 249, 251 Gidden v. Strupler 88 Globe Tobacco Warehouse Co. r. Leach 490 Glocke v. Glocke 335 Gloucester Glue Co. v. Russia Ce- ment Co 469 Glover v. Ott 79 V. Taylor 439 Glubb, Re 678, 738 Gluck.stein r. Barnes 681, 690 Glynn r. Moran . . . .■ 573 Goble r. American Nat. Bank.... 831 r. O'Connor 470 Goddard r. Beebe 415 r. John.son 89 V. O'Brien 210 r. Railroad Co 130 r. Snow 393 i\ Wescott 547 Ixvi TABLE OF CASES. PAGE. Godden v. Pierson 17 i Godfrey v. Thornton 88 Godkin v. Monahan 310 Godman r. Meixsel 408 Godwin v. Francis 119 Goebel v. Linn 204 Goetter v. Weil 584 Goetz V. Foss 170 Goff r. Bankston GG2 Gold V. Ogden 272 r. Phillips 241, 258 Gold Medal Hewing Machine Co. V. Harris 81.3 Gold Mining Co. v. Nat. Bank. .. 403 Goldberg r. Feiga 502 Golden v. Hardesty 586 Goldman v. Goldman 536 r. Rosenberg 536 Goldsborough v. Cradie 23 V. Gable 204 Goldsmith r. Guild 628 Goman V. Salisbury 311 Gorapertz v. Bartlett 606 r. Denton 342 Gooch V. Faucett 508,512 Gooch"s Case 63, 64 Good V. Cheesman 212, 834, 835 r. Elliott 421 r. Zook 746 Goodall r. Cooley 803 r. Thurman 411 Goode (7. Harrison 64 V. Hawkins 470 V. Riley 634, 6.i9 Goodell V. Field 640 Goodenough, In re 463 Goodfellow V. Inslee 853 Goodger r. Finn 708 Goodhue i\ Davis 391 Goodin v. Canal Co 389 Goodman *;. Alexander 78 V. Eastman 868, 871 r. Harvey 291 V. Pocock 346 V. Randall 275 r. Savers 581 r. Simonds 291 c. Walker 452 Goodnow r. Empire Lumber Co. . . 69 V. Moulton 11 Goodrich v. Gordon 25 r. -Johnson 176, 177 V. Northwick 51 1-. Shaw 750 V. Stanley 834 (;. Tenney 44.^) Goodsell V. Myers 69 Goodson r. Whitfield 394 Goodspeed v. Bank 130 r. Cutler 856 Goodwin r. Buzzell 778 V. Crowell 440 PAGE. Goodwin r. Cunningham 286 Goodwin 444, 743 Mass. Trust Co 716, 717 Morris 781 Norton 845 Robarts 293, 294 Thompson 64 Goodyear Co. v. Selz 633 Goodyear Shoe Machinery Co. V Dancel 250, 259 Goram r. Sweeting 910 Gorder t". Plattsmouth Canning Co. 160 Gordon v. Brewster 363 r. Butler 691 r. Dalby 439 r. George 299 r. Gordon 210, 674 i\ McCarty 720 r. Parmelee 6U1 V. Railroad Co 16 V. Robertson 854 Street 597, 697 Third Bank 861 Gibson 100 Goree v. Wilson 193 Gorgier v. Mieville 294 Gorham v. Gilson 125 V. Keyes 440 Gorrell v. Greensboro Water Co . . 249 254 Gorringe v. Read 748 Gorsuth r. Butterfield 402, 515 Gosbell r. Archer 334 Goss V. Lord Nugent... 821, 822, 824 Gossler v. Eagle Sugar Refinery. 652 Gott V. Dinsmore 54 Gottlieb r. Thatcher 761 Gough V. Williamson 639 Gould r. Bank 710 r. Kendall 500 r. McFall 579 r. Partridge 302 v. Stein 620, 652, 653 Goulding r. David.son 200 Governor, Tlie r. Allen 127 Governor v. Lagow 872 Govett r. Richmond 226 Gowans r. Pierce 275 Gowen i\ Pierson 448 Gower r. Andrew 390 V. Sterner 636 r. Klaus 179 i: Thomas 831, 832 Adams 54 Hale 79 V. Lynch 177, 789 Gradle r. Hoflfman 385 r. Warner 181 Graef r. Bernard 877 Graeme r. Wroughton 491, 91 1 Graf r. Cunningham 332 TABLE OF CASES. Ixvii PAGE. Graffenstein r. Epstein 692 Grafton r. Cummings 179 V. St. Louis, etc., Ry. Co. . . 205 Graham r. Chicago, etc., Ry. Co.. 515 r. Graham 50, 735 r. Holloway 345 r. Holt 855 r. Johnson 287, 288, 289 c. Little 744 V. Marks 729 1-. Pancoast 692 V. Railroad Co 125 V. Rush 872 r. Stanton 11, 199 V. Tilford 286 Graham Paper Co. r. Pembroke.. 281 Grain's Case 227, 228 Grand Isle r. Kinney 187 Grand Lodge P. Farnham 42, 187 Grand Lodge, etc. r. Stepp 143 Grandin v. Grandin 215 Granger c. Roll 262 Grannis r. Hooker 709 Grant r. Bradstreet 252 V. Burgwyn 876 V. Diebold Safe Co 250 V. Gold Exploration, etc., Syndicate of British Columbia. 388 392 r. Green 210 v. Maddox 314 V. Porter 199 r. Southern Contract Co... 132 r. Walsh 701 Grant's Case 41, 391 Grattan v. Wiggins 786 Gratz V. Gratz 880 Grau V. McVicker 360 Gravely v. Barnard.... 195, 475, 478 Graves r. Bank 292, 660 V. Berdan 531, 532 i\ Graves' Exs 780 r. .Tohnson 432, 485 r. Legg 325, 327 r. Saline Co 147 V. White 335, 340, 345, 745 Gray v. Barton 211, 813 v. Central R. R. Co 51 V. Chicago Ry. Co 437 r. Fowler 708, 709 r. Gibson 236 V. Gray 786 r. Hamil 199 V. Herman 841 i: Hook 438 439 V. Lewis 160, 897 V. Mathias 411, 412, 413 V. Meek 324 V. Moore 655 v. Palmer 174 PAGE. Gray r. Pearson 230 V. Richmond Bicycle Co.... 877 v. Seigler 41i r. Sims 514 r. Warner 390 r. Wilson 446, 449 Gray's Ex. r. Brown 384 Graybill r. Brugh 217 Greary v. Bangs 332 Greason r. Keteltas 446 Great Xorthern Ry. Co. v. Kasis- chke 584 r. Palmer 55 r. Witham 196, 197 Greathouse v. Throckmorton 409 Greaves v. Ashlin 335 Greele V. Parker 25 Greely v. Dow 833 Green, In re 400 Green v. Adams 395 v. Baverstock 684 r. Burton 170 r. Campbell 462 r. Cole 48 r. Collins 486 r. Creighton 302 r. Drummond 174 i: Duckett 731 r. Estes 170, 257 V. Gilbert 545, 548 V. Goodall 394 r. Green 68, 345, 392 r. Greenbank 82 r. Holway 798 v. .Tones 791 r. Kellev 210 r. Langdon 211, 813 r. Levin 346 r. Maloney 583 r. Morrison 256, 261 r. North BufTalo Township. 584 r. Parker 261 V. Railroad Co 577, 786 r. Sevin 628 r. Sizer 431 r. Sneed 854 r. Starr 877 v. State 685 r. Stone 263, 272, 276 V. Thompson 75 r. Turner 272 r. Wells 528, 816, 836 r. Wilding 66 r. Wilkie 585 r. Wynn 384 Green Bay Co. r. Hewitt 577 Greenburg r. Early 544 Greene r. Bateman 605 r. Halev 342, 550 c. Smith 577 Ixviii TABLE OF CASES. PAGE. Oreenfield's Estate 584, 730 Greenfield Bank V. Stowell.. 857, 807 808 Greenleaf i: Allen 299 V. Gerald 097 V. Hill 89 Greenm?n r. Cohee 452 Greenough v. Balch 399 Greentree r. Rosenstock 281 Greenwav i". Gaither 3G6 Greenweil v. Porter 377,439 Greenwich Bank r. De Groot 41 Greenwood r. Curtis... 508, 510, 511 V. Greenwood 317 Gregg V. Pierce 205 V. Sanford 130 V. Woolscroft 107 Gregory v. Boston Safe Dep. Co.. 878 r. Lee 80 r. Pierce 91 r. Pike 878 r. Spieker 40S /•. ^^•ondell 400, 409 r. Williams 234, 244 V. Wilson 399 V. Winston 393 Grell r. Levy 452, 512 Grenim v. Carr's Adm 12U Grenier v. Cota 30 Gresley r. Mousley. 712, 730, 708, 770 Grever v. Taylor 703 Greville r. Da Costa 334, 344 Grey v. Tubbs 028 Gribben 'V. Atkinson 541 T. Maxwell 101, 102 Grice r. Noble 29 Gridley r. Gridley 253 Grierson r. Mason 312 Grievance Committee v. Brown... 440 C4rifRn v. Boynton 847 V. Cunningham 170 r. Deveuille 745 V. Farrier 092 r. Ranney 798 — — V. Rembert 20 Griffith r. Burden 145 r. Diffenderffer 730 V. Fowler 507 V. Godey 750 r. Sebastian Co 612 V. Sitgreaves 729 r. Thompson 789 r. Tower Pub. Co 590 r. Townley 576 V. Wells 402 r. Young 787 Griffiths )•. Hardenbergh 496 V. Jones 602 V. Kellogg 585 V. Robins 745 V. Sears 492 PAGE. Grigby v. Cox 735 Grigg V. Landis 028, 029 C4riggs V. Swift 544 V. Woodruff 709 Grim v. Murphy 175 Grimaldi v. VVhite 338 Grime t". Borden 415 Grimes r. Butts 174 V. Piersol 859 Grimsted v. Briggs 850 Gring v. Lerch 547 Griswold r. Hazard 570 r. Minneapolis, etc., Ry. Co. 437 r. Waddington 429 Groat r. Pracht 878 Grommes v. Sullivan 144 Gronstadt v. Withoff 573 Gross r. Arnold 27 r. Caldwell 11 V. Drager 584 r. Leber 017 Grosvenor V. Flint 440 r. Sherratt 742, 745 Grotenkemper v. Achtermyer 15 Groton r. Waldborough 438 G rover v. Hoppock 200 Grow V. Garlock 380 Grubb's Adm. i". Suit 547 Gruman v. Smith 408 Grumley f. Webb 390 Grymes V. Blofield 840, 841 V. Sanders 721, 723 Guard v. Whiteside 813 Guardliou'ie v. Blackburn... 312, 914 Guckenheimer r. Angevine 713 Guderian v. Leland 384 Guerin v. Stacey 033 Guernsey v. American Ins. Co.. . . 640 V. Cook 375, 376, 4.39 v. West Coast Lumber Co . . 332 Guest V. Burlington Co 107 • r. Smythe 388 Guild V. Baldridge 575 r. Butler 384, ;i86 Guild & Co. V. Conrad 170 (Juildhall, The 508 Guilleaume r. Rowe 730 Guinness c. Land Corporation of Ireland 902 Gulf, etc.. Rv. Co. v. Heiiey 495 r. Smith 300 V. Winton 49, .50, 197 Gulick V. Gulick 120 V. Ward 470 J,. Webb 470 Gullich V. Alford .342, .343 Gunn's Case 37 (iunnell r. ai,mers n 269 Gunning v. Royal 215 Gunnison County Comrs. v. Rol- lins 137 TABLE OF CASES. Ixix PAGE. Gunter v. Addy 854, 855, 80.3 r. Leckey 402 r. Moonev 27(5 V. Williams 892 Guptill r. Verback G77 Ciupton V. Gupton 467 Gurin r. Cromartie 35 Gurney r. Behrend 302 V. Womersley (i08 Guthartv Gow 448 Gutnmg 0. Lynn 48 Guthman v. Parker 501 Guthrie r. Bashline 283 V. Kerr 250, 252 r. ]\lorris 81 Gutta Percha Co. r. Mayor 157 Guy V. Churchill 453, 456, 461 Gwm V. Anderson 874 r. Simes 809 Gwynn v. G\\';s'nn 893 V. Schwartz 175 GA^ynne t\ Heaton 749 V. Hitchner 51 H. H. r. W 418 H. D. Williams Cooperage Co. v. Schofield 326 H. W. Williams Trans. Line v. Darius Cole Trans. Co 608 Haack v. Weicken 735 Haarstick r. Fox 3;) Haas V. Myers 39, 40, 41 r. Shaw 893 Hebeler r. Rogers 336 Habricht v. Alexander's Exs 427 Hack r. Rollins 395 Hacheny r. Leary 39 Hack V. London Provident Build- ing Society 447 Hackensack Water Co. t?. De Kay. 137 Hacker v. Australian, etc., Co... 340 Hackett r. King 730 l\ Martin 2S2 Hackettstown ads. Swackhammer. 146 Hack-ley r. Headley 728, 731 t\ Ockford . .' 44 Hadcock v. Osmer 682, 692 Hadley v. Clarke 428 V. Clinton Importing Co... 681 Hadlock v. Brooks 451 Haflin v. Bingham 173 Hagan v. Insurance Co 874 Hagee v. Grossman 693 Hagey v. Detweiler 175 \\ Hill 385 Haggard v. Conkwriglit 430 Haggerty i\ Johnston 257 Haggett V. Hurley 893 Hahn v. Baker Lodge 532 Haigh V. Brooks 194 V. North Bierly Union 164 PAGE. Haines v. Busk 494 Haines r. Dearborn 10 r. Dennett 66 r. Lewis 434, 441 r. Starkey 108 Haines' Adm. v. Tarrant 80, 81 Hairston r. Jaudon 787 Halbot r. Lens 120 Haldane r. United States. 28, 29, 41 Hale V. Dressen 818, 821 V. First Bank 285 r. Forbis 205, 206 V. Gerrish 69 r. Hollcn 459 f. Insurance Co 147 r. Ripp 249, 255 r. Sherwood 501, 502 v. Wall 429 r. Wilkinson 753 Haley v. Congdon 295 Halford v. Cameron's Coalbrook, etc., Co 293 Halhead v. Young 310 Halifax Union Guardians v. Wheel- wright 586 Hall, Ex parte 199 Re 805 Hall r. Alford 256, 257, 27 J V. Bainbridge 236 T. Bishop 402 r. Butterfield 68 r. Carmichael 393 V. Cazenove 523 V. Cockrell 109 r. Conder 609 r. Dimond 571 i\ Dvson 380 r. Eccleston 891 r. Ewin 203, 306 V. First Bank 49, 573, 833 r. Fuller 869 V. Gilman 467 r. Gird 452 T. Hall 630, 736, 739 ■ V. Hickman 28G V. Hinks 716 r. Huntoon 250 v. Jones 241 v. Kimmer 492 v. Knr.ppenberger 738 r. Loomis 666 V. ]Mayor of Swansea 167 V. INIesenheimer 179 r. Odber 877 r. Old Talargoch Lead Min- ing Co "^ 719 -"^ r. Palmer 55, 413 V. Perkins 744 r. Railroad Co . 17 /'. Rogers 171 r. Sniith 934, 872 V. Timiiions 83 Ixx TABLE OF CASES. PAGE. Hall V. United States 58 V. \\'arren 98 v. Weaver S6G, 872 r. Wheeler 578 v. Wright . . . 465. 543, 546, 547 Hall's Adm. t\ McHenry.... 862, 872 Hail-Dare r. Hall-Dare 644 Halle i\ Nevvbold 301 Hallenbeck r. Dewitt 584 V. Kindred 258 Hallett V. Holmes 385 r. New England Grate Co. . 580 V. Oakcs 99 r. Wylie 53 ! Halletsville r. Long 662 Halliburton r. Nance 240 Hallidie v. Sutter St. Ry. Co 51 Hallock V. Insurance Co 39 Hallows V. Fernie 692 Halls V. Thompson 693 Halsey r. Grant 663, 664 V. Reed 262 Halsted r. Francis 259 Ham v. Greve 660 Hamarskold r. Bull 112 Hambell r. Hamilton 789 Hamblet v. Insurance Co 43, 657 Hamblin v. Bishop 616 Hamer v. Sidway 185, 196 Hamet r. Letcher 592, 718 Hamilton v. Browning 299 V. Grainger 403 V. Gray 451 t\ Hamilton 444 r. Hart 827 ( . Hector 462 V. Home Ins. Co 445, 448 r. Hooper 862. 863 r. Insurance Co 161, 429 ■ V. Lycoming 39 r. Railroad Co 161 V. Smith 394 r. Stewart 830 V. Thirston 789 V. Thrall 332 T. Vaughan-Sherrin & Co. . . . 69 r. Vought 292 V. Watson 660, 661 v. Wood 854, 861 Hamilton Co. v. Milliken 703 Hamlen v. Werner 301 Hamlin r. Abell 683 V. Drummond 240 v. Great Northern Ry. Co... IG Hamlyn & Co. r. Talisker Dis- tillery 446, 506 Hammer v. Breidenbach 549 Hammersley r. Baron de Beil 466 915, 916, 917, 918 Hammond v. Hopping 809 r. Messenger 279 I PAGE. I Hammond r. Pennock 710, 713 Hampden v. Walsh 501 ('. Maye.s 869 Hanauer ir. Doane. 409, 431, 486, 489 V. Gray 483 ] V. Woodruff' 431, 497 j Hanback v. Corrigan 596 ! Hanchett r. Blair 786 Hancock v. Hancock 95 ! v. Harper 774 I /■. Peaty 99 j f. Watson 622 Hand r. Baynes 528, 530 I V. Evans .\Iarble Co... 257, 259 I r. Hand 88 V. Kennedy 261 Handforth r. Jackson 343, 715 j Handlin r. Davis 743 j Handy v. St. Paul Globe Co. . . . 515 I V. Waldron 692 Hanford v. Blessing 631 Hanger r. Abbott 428 Hannington v. Du Chastel 438 Hankins r. Shoupe 295 Hanks r. Barron 20^:, 210 r. Nagles 411 Hanley r. Pearson 643 V. Sweeney 683 Hanlon v. Doherty 820 • V. Wheeler 79 Hanna v. Ingram 408 r. Kasson 740 I r. Mills 346 ' r. Wilcox 735 Hannah r. Fife 470 Hannahs r. Sheldon 103 Hannan v. Prentis 388 Hannigan v. Allen 258, 266 Hannum v. Richardson 654 Hanover Bank r. First Bank 487 Hanover Fire Ins. Co. v. Lewis. . . . 448 Hanover Nat. Bank v. Blake 379 Hanrahan v. National Assoc 706- Hansen v. Gaar 204, 215 V. Myer 298 Hansley v. Railway Co 17 Hanson v. Crawley 860 V. Marsh 17» Hanson ?•. Waller 565 Han.son Trustees v. Stetson 187 Hanthorn v. Quinn 528 Harben r. Phillips 897 Harberg v. Arnold 265 Harbers v. Gadsden 664 Harbison v. Lemon 104 Harbor v. Morgan 829 Harcrow r. Harcrow 377 Harden r. Lang 343, 3-i6 Hardesty v. Cox 257 V. Jones 170 Hardin v. Boyd 775 TAP.LE OF CASES. Ixxi PAGE. Hardin i. Young 89 Harding, In the Goods of 1)0 r. American Glucose Co. . . . 135 V. Durand 775 r. Gibbs 27 V. Hagar 402 V. Hale S77 Hardman v. Booth 592, 718 Hardware Co. r. Deere 121 Hardwick v. King 837 Hardy v. Dyas " 101 r. Jones 501 r. Metropolitan Land and Finance Co 570 c. Van Harlingen 735 r. Waters 66 Hare r. Murphy 201, 265 Hare's Case 002, 711 Harford v. Street 876 Hagardine v. McKittrick Co 30 Hargrave V. Conroy 548 Harker v. Hough " 879 Harlan V. Central Phospuate Co. . 576 610 Harland v. Person 252 Harlem v. Lehigh Co 612 Harlow v. Beaver Falls Borough . 337 r. Homestead 528. 530 V. La Brun 690 i: Putnam 43, 194 Harman r. Harman 790 Harman's Case 228 Harmon r. Adams 35 V. Birchard 566 v. Harmon 729 Harmony v. Bingham 528, 731 Harmony Lodge v. W lute 299 Harms v. AlcCormick 276 V. Parsons 478 Harn v. Smith 175 Harnden v. Melby 502 Harner r. Dipple 66 r. Fisher 113 Harnett r. Holdrege 860 Harper r. Bank 110 r. Hampton 836 r. 'Harper 170, 505 V. Little 106 i: Reaves 848, 874 r. Stroud 802, 863 r. Terry 713 Harran r. Foley 605 Harraway r. Harraway 735 Harrell v. Miller 173 V. Watson 217 Harries v. Edmonds 350 Harriman, The 528 Ilarriman r. Tyndale 180 Harrington r. Connor 125 r. Harrington 877 c. Kansas City R. R. Co. . . 176 PAGE. Harrington v. Long 453, 457 V. Rutherford 089 r. Victoria Graving Dock Co 389 V. Watson 531, 532 Harrington's Adm. r. Crawford.. 495 Harris i\ Brisco 451, 461 r. Cannon 63 r. Carmody 729 V. Carstarphen 737 V. Carter 204 r. Cassady 210 ■ r. Chamberlain 439 r. G. W. Ry. Co 54 V. Harris 217 V. Heackman 299, 531 ('. Johnson 543 V. Nieker.son 15, 18 r. Oakley 175 r. Owen 848, 851 V. Pepperell 600, G44 r. Porter 178 V. Powers 173 i: Quine 780 V. Runnels 402, 432 /•. Scott 30 r. Smith 589 r. Social Mfg. Co 880 V. Taylor 89 r. Tremenheere 746 r. Turnbridge 408 r. Tvson 68:5 V. Wall 06 r. Wamsley 750 r. \^'atson 204 i: White 405, 406 V. Wilson 889 r. Woodruff 498 v. Young 169 Harris' Case 884, 885 Harrisburg Assoc, v. United States Fidelity Co 383 Harrison r. Cage 202 V. Glucose Co 408 r. Good 301 r. Guest 750, 752 V. Harrison 96, 685 r. Hatcher 488 V. Hicks 841 r. Howe 311 r. Insurance Co 660, 661 /". Jones 399 r. Luke 346 V. ]Mver 531 r. Otley 101 r. Owen 848, 851 v. Polar Star Lodge 816 V. Railway Co 528 r. Seymour 383 r. Simpson 257, 26/ V. Talbot 600 Ixxii TABLE OF CASES. PAGE. Harrison r. Town 753 V. Tuberville 853 r. Wilcox 212 r. Wriglit 257, 267 Harrison Machine Works v. Mil- ler 342 Harrod v. Carder's Adm 776 Harse r. Pearl Life Ass. Co 495 Harshberger's Adm. v. Alger.... 889 Harson v. Pike 14, 22 Hart V. Adler 292 V. Bank 108 V. British Ins. Co 656 ('. Gregg 459 r. Hart 49 r. Miles 194 r. Mills 604 r. Norton 12 r. Sharpton 874 r. State 451 r. Swaine 672 Harter v. Christoph 040 V. Elzroth 054 c. Harter 914 Hartford Fire Ins. Co. r. Chicago, etc., Ry. Co 515 r. Davenport 248, 259 Hartford Ins. Co. t-. Hon 449 V. Lasher stocking Co 39 Hartford, etc., R. Co. v. Jackson. . 599 Hartley r. Cummings 197, 481 r. Harrison 275 V. Ponsonby 204, 205 V. Rice . . .' 465 V. Sandford 171 Harts r. Emery 261, 270 Hartung v. Witte 175, 298, 301 Hartwell v. Gurney 684 Harvey v. Briggs 68 r. Curry 890 r. Dale 654 r. Facey 19, 45 r. Farnie 579 r. Gibbons 524 r. Girard 579 r. Grabham 822, 824 r. Harris 599 r. Hunt 378 V. Merrill 406, 408 r. Mount 745 V. Smith 865, 868 i: State 870 V. Sullens 734 r. Tama County 841 Harvey Lumber Co. v. Herriman Lumber Co 257 Harwell v. Steele 776 Hasbrouck r. Tappen 823, 824 Haskell V. Burdette 383 ^ V. Champion .... 859, 860, 862 PAGE, Haskell r. Davidson 23 V. Starbird G99, , oi r. Tukesbury 179, 214 Hassingor r. Newman 171 Hastelow r. Jackson 501, 503 Hastings, Lady, Re 895 V. Dollarhide 66, 07, 69 r. Lovejoy 827 r. Lovering 052, 653 Hatch V. Coddington 106 V. Douglas 40» r. Hanson SOa V. Hatch 735, 736, 744, 845 V. Hatch's Est 69 V. Leonard 90 V. Mann 205 i\ Searles 867 V. Sponord 877 Hatcher v. Buford 395 Hathaway v. Lynn 818 Hatton, lie 834 Hatzfield v. Gulden 434 Haubelt v. Rea & Page Mill Co . . 604 Hauessler r. Missouri Iron Co . . . 304 Ha ugh V. Blythe's Exs 177, 789 Havana Press Drill Co. v. Ashurst. 210 Haven v. Foster 580 Haven r. Russell 51 Haviland r. Halstead 120 V. Willets 614, 618, 689 Haw V. American Wire Nail Co. . 181 Hawes v. Dingley 716 Hawk V. Marion County 14 Hawkins r. Chace 180 V. Davis 592 V. Graham 51, 52 V. Hawkins 584 V. Pemberton 654 V. Smith 402 Hawkinson i\ Harmon 181 Hawksworth r. Hawkswoi^th 462 Hawley r. Bibb 292, 407 V. Exchange Bank 257, 267 V. Foote 829 V. Howell 103 r. Moody 787 r. Smith '. . . 550 f. Wilkinson 257 Hawralty i'. Warren 572 Hay V. Insurance Co 639' Hay's Case 389 Hay's Estate 470 Haycraft v. Creasy G92 Haydel v. Mutual Life Assoc 573 Hayden ?■. Devery 272 r. Goodnow 874 V. Snow 272 V. Souger 22, 205 Haydock r. Haydock 737, 738 Hayes v. Allen 832 ^ V. Gross 538 TABLE OF CASES. Ixxiii PAGE. Hayes v. Hyde Park 432 r. Jackson 178 r. Massachusetts Co 214 r. Nashville 352 v. Parker 85 4-. Wagner 848, 858, 809 r. Waverly, etc., Co 301 r. Wells 384 Haye's Exs. v. Hayes 914 Haygarth v. Wearing. . 670, 672, 765 Haymaker v. Eberly 214 Haj'mond r. Camden 430 Haynes r. Doman 477, 479, 483 — - V. Nice 785 r. Rudd 440, 496, 747 r. Second Baptist Church . . 528 538 Hayney v. Coyne 451 Hays V. Cage 877 — '- r. Gas Light Co 142 r. Hall 324 r. Kershaw 217 r. Midas 708 v. Odom 853 V. Railroad Co 130 Hay ward v. Andrews 279 r. Barker 200 V. Hayward 89 u. Leeson 389, 676 r. Nordberg Mfg. Co 436 Haywood v. Brunswick Building Society 302, 305 V. Cope 754 r. McNair 295 Hazard r. Dillon 500 r. Griswold 584, 725, 729 i\ Insurance Co 599 r. Railroad 302 Hazen v. Mathews 302 Hazle ;;. Bondy 261 Hazlerigg r. Donaldson 728 Hazlett r. Burge 680 V. Sinclair 300, 301 Head v. Clark 15 V. Diggon 31 V. Goodwin 782 Headley v. Pickering 689 Heady i\ Boden 68 Heagney r. J I. Case Machinery Co 350 Heaps r. Dunham 729 Heard r. Bowers 358, 359 V. Pilley 174 v. Tappan 866 Hearn v. Kiehl 832 Hearne r. Chadbourne 178 V. Insurance Co 641 Heartlev r. Nicholson 210 Heath v. Blake ... 851, 854, 863, 870 V. Crealock 56S V. Heath 170 PAGE. Heath v. Vauglin 834 V. West 67 Heathcote v. Paignon 754 Heaton r. Eldridge 784 i. Norton Co. Bank 729 Heaver v. l--anahan 349 Hebb's Case 31, .35, 884 Hebblethwaite v. Hepworth 158 Heburn v. Warner 891 Hecht v. Batcheller 607, 054 r. Caughron 256 Hecker r. Mahler 86:) Heckman i\ Doty 498 v. Manning 820 r. Swartz ,. 488 Hedin v. Minneapolis Institute... 692 Heermans v. Ellsworth 282 Heeter r. Glasgow 312 Heffer v. ]Martyn 470 Keffield v. Meadows 315 Heffron r. Pollard 110 Heflin v. Milton 176 Hefner r. Vandolah 443 Hefter v. Calm 378 Hegenmver v. Marks 74.0 Hei V. Heller 173 Heideman v. Wolf stein 180 Heilbronn v. Herzog 707 r. McAleenan 7 IS Heilbutt r. Hickson 342, 619 Heim r. Vogel -ui, 265 Heinlin v. Fish 816 Heins r. Lincoln 146 Heirn v. Carron 832 V. McCaughan 17 Heiserman r. Railroad Co 731 Heislev v. Swanstrom 82.3 Helberg i: Nichol 390 Helburn v. Moflford 531, 532 'Helen," The 431 Helfen.stein's Est 42, 187 Hellen r. Anderson 464 Heller r. Elliott 708 Helmer r. Krolick 292 Helms V. Douglas 291 v. Franciscus 41.'> Helps v. Cla^i;on 70 Heman r. Gilliam 803 Hemingway r. Coleman 749 i\ Hamilton 67!> Hemmer r. Cooper 690 Hemminger r. Western Assur. Co. 337 Hemphill r. McClimans 199, 200 Hemsley i: Hotel Co 302, 300 Hendee v. Cleaveland 3S7 Henderson v. Australian Roval Mail, etc., Co 162, 163 r. Beliew 275 I-. Fox 74, 80 r. Gibbs 7 I ''« T. Henderson 415. 821 Ixxiv TABLE OF CASES. PAGE. Henderson f. Killey 244 v. McDonald .... 249, 252, 273 r. Palmer 440 v. Railroad Co 701 c. Stevenson 53 r. Stokes 039, 640 r. \\'aggoner 487 r. Williams 719 Henderson Bridge Co. v. McGrath . 50 Hendricks r. Railroad Co 54 r. Comstock 780, 781 r. Frank 257, 260 r. Isaacs 92 r. Lindsay 276 V. Robinson 199 Hendrickson r. Trenton' Bank .... 285 Henkel r. Rape 004 Henkle r. Royal Exch. Assce. Co. 639 Henley v. Hotaling 631 Hennen v. Oilman 427 Hennequin v. Naylor 679 Hennessv v. Bacon 345 r. Bond 259, 277 Henning v. Werkheiser Su.3, 866 Henninger v. Heald 713 Henricus v. Englert 110 Henry v. Coats 802 7". Dennis 700 r. Gauthreaux 88 r. Heeb 443 r. Henry 792 r. Murphy 246. 256, 271 r. Root 175 r. Vance 681 Henry, etc., Assoc, v. Walton 443 Hensliaw V. Robbins 654 Hensler v. Jennings 501, 5u2 Henthorn r. Fraser . . 28, 30, 31, 33 36, 38, 41 Hentz V. Jewell 409 V. Miller .592, 718 Hepburn v. Auld 664 Hepler v. Mt. Carmel Bank 864 Herbert v. Mueller 214 Herbst r. Hagenaers 880 Herdman v. Bratten 859 Hereford and South Wales Waggon and Engineering Co., Re 698 Herman r. Hall 696 Herman v. Jeuchner 443, 502 Herndon r. Gibson 470 Herpolsheimer v. Funke 469 Herr r. Payson 453 Herreshoff r. Boutineau. . 468 Herrick r. Baldwin 850 r. Lvnch 505 r. Malin 845 r. Newell 787 Herriman r. Menzies 469 Herron r. Herron 745 Hershey v. Luce 573 PAOE. Hershey v. O'Neill 565 Hershizer v. Florence 889 Herster v. Herster 736 Herter v. Mullen 559 Hertzler v. Geigley 402, 498 Hertzog r. Hertzog 11, 12 Hervey v. Hervey 869 Herzog v. Purdy 332 V. Sawyer 826, 836 Hess V. Dawson 332 V. Draffen 692 Hesse v. Stevenson 624 Hessick v. Hessick 735 Hewes r. Platts 402 Hewett V. Currier 215 Hewitt V. Anderson 14 r. Wilcox 802 Heysham v. Dettre 728 Heywood v. Mallalieu 071, 674 Heyworth v. Hutchinson 654 Hibblewhite r. McMorine 855 Hick V. Raymond 530 Hickerson r. Benson .502 Hickey r. O'Brien 197 V. Railway Co 301 Hickman v. Berens 603 r. Haynes . 824 v. Layne 249, 254 Hickock r. Hoyt 345 Hicks r. Aylsworth 628 r. British Am. Assur. Co... 361 r. Cleveland 782 r. Cody 577 r. Hamilton 265 f. Hicks 630 r. McGarry . . . . , 259 r. McGoun 880 V. Steel 743 T, Stevens 695 V. Wyatt . . . . ; 256 Hidden r. Chappel 238 Hides r. Hides 740 Higby v. Whittaker 342, 344, 345 Higert i'. Trustees 187 Higgens's Case 875 Higgins V. Dale 199 V. Eagleton 345, 354 r. Hayden 701 r. Illinois Bank 654 v. Pitt 380 r. Railway Co 565 V. Russo 495 V. Samels 696 V. Scott 775 V. Senior 108 Higginson /•. Clowes 601, 63.5 r. Schaneback 174 V. Simpson 499 Higgs r. Northern Assam Tea Co. 289 liigh r. Worley 88 Hi^hberger r. Stiffler 744 TABLE OF CASES. Ixxv PAGE. Hilborn r. Buekman 729 Hileman r. Wright (i^U Hill i: Baker 427 c. Blake 340, .342 r. Boyle 450 v. Cooper 93 V. Day 100, lOG r. Freeman 413 V. Gould 22(5 r. Gray 681 V. Grigsby 324 V. Hooper 178 V. Jamieson 176 V. Lew 409 v. More 445, 879 r. Morris 590 V. Myers 890 V. Omaha, etc., R. R. Co... 277 V. O'Neill 871 V. Railroad Co 54 r. Spear 399, 486, 509 r. Sweetser 602 r. Thixton 289 l\ Trainer 384 r. Tupper 303, 304 V. Walker 776 r. Wilson 311, 589 Ilillestad r. Lee 839 Hillhouse r. Jennings 178 Hilliard v. Eiffe 672, 725 Hilliard r. New York, etc., Co. 531, 532 Hills r. Barnes 873 r. Loomis 631 r. .Metzenroth 301 V. Rowland 641 r. Snell .• 590 V. Sughrue 519, 527, 542 Hillyard v. Mutual Benefit Ins. Co. 514 Hilton V. Crooker 595 V. Eckersley 472, 473 V. Guvot ." 157 V. Shepherd 68 t\ Woods 452 Himrod r. Oilman 292 Himrod Co. v. Cleveland Co 181 Hinchman v. Kelley 450 V. Weeks 699 Hinckley v. Pittsburg Steel Co. . . 304 V. Southgate 178 Hind r. Holdship 193, 258, 259 Hindley v. Marquis of Westmeath. 418 Hindley's Case 30 Hindman r. Bank 700 V. First Bank 704 Hinds {.'. Vattier 508 Hindson v. Weatherill 730 Hinely v. Margaritz 69 Hinkley r. Fowler 257, 270 V. Smith 890 V. Walters 776 Uinman r. Hapgood 803 PAGE. Hinton v. Insurance Co (540 Hipwell V. Knight 028 Hirsch v. Chicago Carpet Co 210 Hirschbach r. Ketchum 452 Hirschfeld v. London, Brighton South Coast Ry. Co G89 Hirschman, Re 708 Hirschman v. Budd 8(51 Hirst V. Tolson 548 Hiscock V. Harris 879 Hislop r. Leckie 305 Hitchcock V. Bacon 525 V. Coker 471, 475, 476 V. Giddings 614 V. Libby 175 Hitshins i: Pettingill 034 Hitner's Appeal 414 Hoadlv V. House 003 r. McLaine 179,* 181 Hoaglin c. Henderson 893 Hoare v. Bremidge 720 r. Rennie 328, 329, 330 Hobart v. Butler 803, 804 r. Johnson 892 Hobbs V. Columbia Falls Co. . 323, 341 355, 810 r. Greifenhagen 199 c. Insurance Co 446 V. McLean 375 r. Massassoit \^'hip Co 10 Hoboken, Mayor of, r. Bailey. ... 14 Hoch's Appeal 776 Hof^hmark r. Richler 857, 872 Hochstein i\ Berghauser 640 Hochster v. De La Tour 338, 352 353, 359, .301, 303, 304, 365, 307 Hockenburv Adm. Meyers 214 Hockett v." Bailey. ...."' 88 Hocking r. Hamilton 361, 362 Hocknell v. Sheley 870 Hodgdon r. White 776 Hodge r. Farmers' Bank 860 r. Scott 874 V. Sloan 304 V. Tufts 008 Hodges r. Elyton Co 264, 384 ■" r. Hall 109 r. Rowing 180 r. Nalty 187 r. Phelps 250, 253, 2o.i V. Richmond Mfg. Co 176 V. Smith 813, 836 Hodgson. Re 890 r. Dexter 112 r. Perkins 595 V. Temple 432 Hodson r. Davis 8y2 V. Heuland 790, 791 Hodson's Settlement, Re 05, 60 Hoe r. Marshall 358, 813 Hoe's Case 813, 814 Ixxvi TABLE OF CASES. PAGE. Hoes V. Van Hoesen 815 Hoey V. Jarman 874 r. McEwan 544 Hoff's Appeal . .• 262, 269 Hofflin v. Moss 289 Hoffman r. Carow 565, 507 V. Dixon 653 r. Gallagher 51 r. Hofl'man 880 r. Machall 375 r. Maffioli 197 r. Molloy 870 V. Planters' Bank 854, 859 r. Riehl 623 r. Vallejo 451, 452 Hoffman Coal Co. v. Cumberland Coal Co 389 Hogan V. Kyle 324 V. 8horb 114 r. Stophlet 205 r. Wixted 720 Hoggins r. Gordon 803, 804 Hoghton r. Hoghton . . . 584, 737, 744 Hoile r. Bailev 259 Hoit r. Berger- Crittenden Co 880 V. Hodge 501 Holberg r. Jaffray 778 V. Armstrong 177 V. Connor 690, 691 r. Electric Appliance Co. . . . 810 r. Investment Co 628 r. Tiffany 803 V. Weaver 390 Holden v. Banes 199, 200 V. Cosgrove 809 r. Rutland R. R 114, 859 r. Upton 403 Holder v. Nat. Bank 274 Holdridge v. Gillespie 390 Hole r. Bradbury 596 Holladay ;;. Patterson 425, 437 Holladav-Klotz Co. i\ T. J. Moss Co. .". 845, 848, 850, 873 Holland, Re 793 V. Cincinnati, etc., Co 330 r. Hall 490 Hollida r. Shoop 174 Hollingsworth r. Holbrook. . 845, 851 853 v. Pickering 880 Hollins V. Fowler 565, 592, 718 Hollis r. Chapman 538 r. Stowers 177 Hollister v. Nowlen 54 Hollowav V. Griffith 361, 365 r. Hill 301 V. Lowe 452 Holloway's Assignee v. Rudy. 199, 201 210 Holman v. Johnson 432, 433, 497 V. LojTies 736, 740, 743, 768 PAGE. Holme V. Brunskill 382. V. Guppy 551 Holmes v. Bell 876 V. Blogg 6!) V. Board of Trade 11, 12 V. Boyd 206 V. Doane 204 V. Gardner 292, 299 r. Holmes 211, 395, 813 v. Jacques 237 i\ Knights 171 V. McCray 174 V. Mackrell 180 V. Trumper 867 Hoist V. Stewart 694, 695 Holt V. Green 399, 402 V. Holt 173 V. Silver 550 V. Thurman 439 V. Ward Clarencieux 66 Holzapfel's Co. v. Rahtjen's Co... 419 Homan v. Steele 187 Homans v. Tyng 813 Home Ins. Co. v. Elwell 780 V. Watson 213 Home Nat. Bank v. Waterman's Est 264 Homer v. Tliwing 83 V. Wallis 806 Homersham r. Wolverhampton Waterworks Co 162 Honck r. IMiiller 329 Honeyman v. Marryat 44 Honour v. Equitable Soc 366 Honsding i-. Solomon 51 Hood r. Bloch 652 i\ Hammond 775 V. Hampton, etc., Co 549 r. People's, etc., Assoc 344 r. Smith 611 Hood- Bar rs r. Cathcart 97 i: Heriot 94, 97 Hooker r. De Palos 496 V. Williamson 880 Hoole V. G. W. Ry. Co 897 Hoop V. Plummer 89 Hooper r. Brundage 286 Hooper c. Hooper 170, 258 r. Whitaker 798 Hooper's Case 875 Hoover v. Hoover 253 V. Sidener 607 Hope r. Hope 416, 444, 512 Hopkins r. Cockerell 775 r. Commonwealth 557 r. Ensign 193, 470 r. Farwell 295 V. Insurance Co 585 r. Logan 20() v. O'Kane 408 r. Prescott 438 TABLE OF CASES. Ixxvii PAGE. Hopkins r. Richardson 199 r. Smith 301 V. Snedeker 713 1-. Warner 2G1, 262 Hopkins Mfg. Co. v. Aurora F. & M. Ins. Co 248 Hopkinson v. Foster 894 V. Warner 271 Hopper r. Covington 140 Hoppin V. Tobey 737 Hopple V. Brown Township 137 V. Hippie 137 Hord V. Taubman 8.59 Horn V. Bray 171 V. Buck 608 V. Fuller 241 V. Keteltas 631 V. Newton Bank.. 857, 8.59, 866 Hornberger i\ Feder 336 Hornblower r. Crandall 701 Home V. Smith 345 Home's Case 300 Horner i\ Chicago Rv. Co 437 i\ Parkhurst . ' 608 Horner's Appeal 821,828 Horrocks v. Rigby 668 Horsfall v. Fauntleroy 116 V. Thomas 696 Horst v. Wagner 859 Hort's Case 227, 228 Horton v. Davis . . . 275 V. Horton's Est 864 i: New York Life Ins Co. . . 39 V. Williams 717 Horton's Appeal 593 Hoskins c. Mitcheson 786 Hosier v. Beard 99, 102 V. Hursh 832, 834 Hosmer v. McDonald 573 V. Wilson 349, 364 Hostetter i;. Alexander 292 V. Auman 173 v. Hollinger 250, 252 Hotchkin v. Tliird Bank 693 Hotchkiss c. Banks 291 V. Dickson 495 Hotel Co. V. Jones 136 Hotel Lanier Co. v. Johnson.... 854 Hotson V. Browne 310 Hottell V. Farmers' Assoc 301 Houck V. Graham 862 V. Wright 402, 490 Hough V. Brown 43 i\ Hersey 275 V. Manzanos Ill r. Richardson . . . 693, G97, 715 Hough. Admrs. of, r. Hunt 751 Houghtaling v. Ball 782 r. Hills 679 Houghton V. Milburn 277 Houghwout V. Boisaubin 180 PAGK. Houldsworth v. City of Glasgow Bank 701, 704 V. Evans 901 Hoult L-. Baldwin 608 Houlton V. Dunn 436 V. Nichol 436 House V. Alexander 79 Household Fire Ins. Co. v. Grant. 40 885 Housekeeper Pub. Co. v. Swift... 816 Houseman v. Grossman 88 Houser v. Lamont 786 Houston V. Kentlinger 408 V. Thornton 683, 704 Houston, etc., R. Co. v. Texas.... 431 Hovey r. Chase 104 \: Hob.son 101, 102, 104 V. Page 546 How V. How 276 Howard i\ American Mfg. Co.... 550 r. Brownhill 809 V. Bergen 170 Howard v. Dalv 361 V. Doolitt'le 531 V. Edgell 749 r. F. I. Church of Balti- more 430 r. Harris 630 r. Hoey 652 V. Huffman 850 r. Industrial School 19 r. Odell 631 r. Bobbins 202 r. Sinipkins 79 r. Smedley 51 f. Turner 720 r. Wilmington, etc., R. Co. 816 Howard Col. r. Turner 363 Howarth r. Brearley 803 Howden v. Haigh 379 Howden (Lord) v. Simpson 493 Howe V. Batchelder 173 r. Howe 101 v. Hutchinson 338, 352 r. Nickels 22 r. Peabodv 858, 860, 871 r. Smith '. 338 r. Taggart 214 V. Watson 181 V. Wilder 849 Howe Machine Co. r. Farrington. 662 Howell c. Coupland 539 r. Field 170 r. George 753, 755 r. Hair 781 V. Hale 88 r. Hough 257 r. Insurance Co 050 V. Kelly 174 r. Monica] 877 r. Ransom 730. 742 Ixxviii TABLE OF CASES. PAGE. Howell r. Gtewart 487 r. Webb 875 Howells f. (Strooek 29 Howgate & Osborn's Contract, Re. 803 Howland v. Lounds 14 c. MajTiard 130 Hovvley v. Knight 127 V. Whipple 604 Howlin r. Castro 335 Howsmon v. Trenton Water Co . . 249 251, 254 Hoxie V. Lincoln 07 V. Potter 402 Hoxsie V. Empire Lumber Co.... 832 Hoy V. Holt 533 Hoyle, Re 171 r. Southern Works.... 715, 749 r. Stowe 03 Hoyt V. Cross 492 V. Latham 723 r. Murphy 256 V. Thompson 100 V. Wilkinson 07 Hubbard v. Belden 548 r. Bugbee 200 r. Matthews 429 V. Moore 486 r. Ogden 383 f. Sayre 488 r. Tenbrook 112 V. Williamson 805 Hubbell r. Carpenter 385 V. Custer City 140 V. Pacific Mut. Ins. Co 340 V. Von Schoening 627 Hubbert v. Borden 112 Huber v. Guggenheim 689 V. Johnson 451, 452 i: Steiner 780, 781 Huckabee v. May 256 Huckins r. Hunt 378, 380 Hucklesby r. Hook 180 Hudderslield Banking Co. v. Lis- ter 615, 645 Hudson, Re, Creed v. Henderson. 186 r. Hudson 466 V. Revett 857 Hudson's (Lody) Case 840 Hudson's Co. v. Tower 27, 187 Hudson Iron Co. v. Stockbridge Iron Co 640 lividspeth v. Thomason 638 Huflf V. Cole 804 Huffman v. Hummer 627 r. Long 123, 592 r. Mill key 335, 822 V. Western Mortgage Co. . . 202 274 Huger, Re 776 Hughes, Re 93, 890 Hughes i\ Done 807 PAGE. Hughes V. Gross 544 V. Hamilton 890, 891 t\ Humphreys 913 i-. Jones 664, 605, 609 V. Klingcnder 509 0. Littlefield 854 V. Oregon Co 258, 276 V. Pennsylvania R. Co 508 i: Sheaff 631 V. So. Warehouse Co 204 V. Wamsutta Mills 545 V. Wilson 736 Huguenin v. Baselev . . 737, 746, 747 768 V. Courtenay 530 Hulbert v. Clark 775 Hulen V. Earel 468 Hulhorst V. Scharner 492, 505 Hull r. Caldwell 608 Hull v. Hayward 262, 204, 269 V. Johngon 839, 840 V. Ruggles 432, 486 r. Watts 610 Hull Coal Co. r. Empire Coal Co. 332 351 Hulle V. Heightman 337 Hulme V. Coles 385 V. Tenant 887, 893 Hulse, Ex parte 630 V. Young 109 Humaston v. Telegraph Co 550 Humble v. Curtis 285 ;;. Hunter 113, 592 Hume V. Mazelin 205, 206 V. Pocock 695 V. United States 606 Humes r. Decatur Co 210 Humfrey r. Dale Ill, 316 Humiston v. Wheeler 532 Hummel v. Stern 52 Humphrey v. Eddy Transporta- tion Co 389 V. ]\Ierriam . . . . / 693 Humphreys r. Green 790 V. Guillow 856 r. New York, etc., R. Co... 573 r. Third Nat. Bank 8.32 V. Polak 463 Hun V. Van Dyck 842 Hungerford r. Hungerford . . . 92, 415 Hunnewell r. Duxburv 703, 704 Hunstock /•. Palmer . .' 480, 487 Hunt, In the Goods of 587 V. Baker 696 r. Brown 830, 834, 835 V. Elliott 375. 470 V. Gray 853, 869, 874 V. Higman 39 V. Hunt 172, 410, 414, 415 416, 418 V. King 253 TABLE OF CASES. Ixxix PAGE. Hunt V. Livermore 49 V. New Hampshire Fire As- soc 259 L\ Peake 65 V. Postlewait 205 V. Rousmaniere"s Adminis- trators 576, 577, 636, 641 r. Shackleford 286 t:. Silk 342, 715 r. Strew 259 V. Test 436 i\ Wimbledon Local Board. . 147 164, 167 V. Wyman 28 V. Agee 495 Atkins 768 V. Bilyeu 633 /'. Cobb 798 V. Daniel 453, 457 c. McLaughlin 691 r. Nolf 438, 439 V. Owens 750 V. Parsons 866 V. Pfeiffer 470, 500 V. Starkes 778 r. Tolbard 100 r. Walters 586. 588, 593 V. Wilson 256, 276 Huntington r. Asher 304 v. Bank 867 V. Bavdwell 470 r. Clark 379 V. Finch 862 V. Knox 109, 114 r. Wellington 171 Huntsville r. Huntsville Gas Light Co 114 Hnrd r. Bickford 717 r. Gill 550 Hurlbut r. Hall 866 r. Phelps 836 Huron Printing Co. r. Kittleson.. 226 Hurst V. Beach 844 ('. Litchfield 879 Hurt (•. Ford 171 Huss V. Morris 639 Hussey r. Horne-Payne 44, 47 Husted r. Van Xess 639 Hustis r. Picklands 402 Huston r. Railroad Co 301 Hutches i: J. I. Case Co 862 Hutcheson r. Blakeman 43 r. Eaton Ill Hutchings r. Miner 258 r. Stilwell 501 Hutchins r. Dixon 415 V. Kimmell 158, 509 r. Scott 848 Hutchinson r. Hutchinson 176 r. Tatham 105, 111 r. Wright 384 PAGE, Huthmacher v. Harris's Adm.... 590 Hutley V. Hutley 451, 453, 461 Button V. Bulloch 10!) V. Campbell 386 V. Dewing 708 v. Hutton's Adm 92, 416 r. Warren 316 Huyett Mfg. Co. v. Chicago Edi- son Co 538 Hyatt V. Dale Mfg. Co. .* 194 r. Robinson 729 Hybart v. Parker 236 Hyde r. Hyde &. Woodmansee. . . . 509 r. Miller 262, 264 V. Wolf 116 V. Wrench 30 Hydeville Co. v. Eagle R. R. Co. . . 827 Hydraulic Engineering Co. v. Mc- ^Haffie 629 Hyer v. Hyatt 66, 80 -^— l\ Little 749 Hyer v. Richmond Traction Co. . . 470 Hyman v. Cain 80 Hynds v. Hays 484 H^Ties V. McDermott 158 Hynson v. Dunn 725 I. lasigi r. Brown 700 Ide ('. Churchill 382 llett i\ Collins 775 Ilgenfritz i\ Ilgenfritz 735, 742 Elinois Central R. Co. v. Schwartz 877 Illinois Land Co. v. Speyer 456 Illinois Leather Co. v. Flynn 679 Ilsley r. Merriam 108 Imlay v. Huntington ' . . . 231, 891 Imperial Loan Co. v. Stone.. 98, 100 103 Inchbald v. Western, etc., Co 363 Ind's Case 603 India Bagging Assn. v. Kock 468 Indiana r. Woram 142 Indiana Mfg. Co. r. Hayes 10 Indiana Meeting r. Haines.. . 722, 889 Ingalls r. Hobbs 673 r. Miller 747 ■ r. SutliflF 204 IngersoU r. Martin 190, 812 V. Roe 747 Ingle r. Hartman 388 Inglish r. Breneman 861, 867 Ingraham r. Baldwin 101 v. Whitmore 880 Ingram r. Ingram 261, 264, 470 r. Little 855 r. Osborn 259 r. State 558 Inhabitants r. Huntress 856 Inman r. Inman Sf> Inn is r. Templet on 88 Ixxx TABLE OF CASES, PAGE. Inskoe v. Proctor 03(3 Insurance Co. v. Atwood's Admx. 429 i. Babcock SlU c. Bachler 6;i'.i ( . Bailey 72(5 (". Blankenship 102 V. Brehm 688 i: Clopton 429 r. Crane G40 r. Doll 573 V. Duerson 429 V. Butcher 573 V. Elliott 499 - r. Findley 385 • — ■ — V. France 658 V. Frear Stone Mfg. Co 719 V. Gridley 658 V. Haehfield 291 V. Hamill 659 V. Harmer 659 V. Hearne 641 V. Henderson 589, 640 r. Hilliard 66, 429 r. Hodgkins 584 c. Holoway 385, 661 V. Horan 659 • r. Hull 440, 492, 503 r. Humble 701 r. Hunt 102 c. Hutchinson 533, 726 v. Ireland 177 c. Knabe Co 39 r. Mabbett 662 V. Manning 146 r. Massachusetts 136 /•. McCain 106 r. McWhorter 584 V. Meeker 729 V. Morse 446 c. Noyes 74, 79 r. Oakley 161 r. Pyle ' 658 r. Railroad Co 54 r. Rcod 688 r. Ruden's Ad 656 r. Rugglcs 657 '•. Ruse 614 r. Scott 385 r. Simmons 385 '". Spradley 487 V. Stoney ] 656, 657 r. Turner 675 r. Tuttle 886 V. Warwick 429 r. Wise 658 Interior Woodwork Co. V. Prasser 140 International Bank v. German Bank 294 r. Parker 805 International Trust Co. r. Wilson 291 PAGE. Interstate Tel. Co. v. Baltimore Tel. Co 116 lonides r. Pacific Insurance Co. . . 796 f. Pender 656, 697 Iowa Valley Bank r. Sigstad 861 Ipswich Tailors' Case 472 Ireland V. Ireland 735 I'. Rittle 175 Irick V. Ftilton's Exs 602 Irnham (Lord) r. Child 577 Iron Co. r. Harper 388 Irvin V. Irvin 444 Irvine r. Irvine 69 r. Watson 115 Irwin f. Johnson 821, 828 r. Lee 324 — — r. Locke 199 r. Lombard University 187 249, 255 v. Williar 389, 406 V. Wilson 582, 599, 603, 618 Isberg V. Bowden 114 Ish V. Crane 106 Isler r. Baker 103 Isnard v. Torres bu3 Ison r. Wright 449 Ivans V. Laurv 652 Ivens r. Butler 894 Ives V. Bank 867 r. Hazard 635 r. Jones 495 V. Sterling 187 Ivey r. Lalland. 432, 508 Izard V. Izard 794 V. Middleton 176 J. J. B. Alfree Mfg. Co. r. Grape. . . 346 J. G. r. H. G 416 J. I. Case Co. r. Peterson 872 J. I. Case Works v. Marr 52 Jackson, Ex parte 401 Jackson v. Blodgett 299 r. Brick Assoc 500 r. Burchin 63 V. Campbell 160 r. Carpenter 63 i: Citv Bank 486, 487 V. Cobbin 204 V. Creswell 528 r. Day 873 r. De'Long 880 r. Duchaire 377 r. Ely 625 ?•. Evans 173 r. Gould 845, 848 V. Hall 347 r. Hamm 281 r. Harder 175 r. Hayner 584 r. Higeins 174 TABLE OF CASES. Ixxxi PAGE. Jackson v. Johnson 850 r. Ligon 627 V. Litch 823 c. Longwell 775 V. Ludeling 377 c. Maliu 859 V. Olney 589 V. Pennsylvania R. Co 842 V. Penine 573 c. Stackhouse 828 V. Stanfield 786 V. Stevenson 306 V. Turquand 44 i\ Union Marine Insurance Co 543 V. Willard 299 Jackson Iron Co. v. Negaunee Co. 177 277 Jacobs, Ex parte 384 Jacobs V. Cnnlit Lyonnais. . . 514, 530 V. Gilreath 856 l: Locke 664 r. Revell 665 V. Seward 570 Jacquinet v. Boutron 553 Jaffrav v. Davis 211, 844 V. Wolf 707 Jaggar v. Winslow 688 James, Ex parte 580 James, In re 557 James v. Burchell 324, 354 c. Clough 187 V. Cotton 334 V. Couchman 739 r. Cutler 639 r. Darby 30, 44 V. Day 264 r. Fuicrod 470 r. Gillen 68 r. Hodsden 697 i". Isaacs 593, 841 V. Jellison 483 V. Kerr 451 V. Patten 180 r. Roberts 492, 505 v. Smith 783 V. Steere 444 r. Tilton 854 James H. Rice Co. v. Penn Co... 369 James T. Hair Co. v. Daily 391 Jameson v. Gregory 486 Jamieson (;. Indiana Gas Co 514 Jamison v. Calhoun 495 V. Ludlow 199 V. Petit 175 Jangraw v. Perkins 464 Janney v. Goehringer 856 January v. Martin 753 Janvrin v. Exeter 14 Jaqua v. Montgomery 289 vi PAGE. Jaques I'. Withy 515 Jaquess v. Thomas, Re Thomas. . 454 daquith v. Adams 346 Jarboe r. Severin 787 Jarman v. Wilkerson 891 Jarratt v. Aldham 771 Jarrett v. Hunter 179 Jarvis v. Cowger's Heirs 627 r. Rogers 294 V. Schaefer 108, 388 Jay and Amphlett, Re 894 Jce v. Thurlow 417 JeflFerson r. Asch.. 250, 254, 256, 276 r. Burhans 497 r. Hewitt 691 Jefferson County v. Hawkins 579 Jefferys v. Gurr 167 Jeffrey r. Bigelow 702 r. Rosenfeld 854, 870 Jeffreys c. Southern Ry. Co 625 Jeffries r. Insurance Co 658 L\ Mutiial Ins. Co 451 r. Wiester 388 Jefts r. York 122 Jehle r. Brooks 260 Jellison v. Jordan 787 Jemison v. Bank 142 Jenkins r. Charkson 204 V. Freyer 89 V. Frink 470 r. Jenkins 623 v. Jenkins' Heirs 98 V. Jones 458 i\ Kebren 23 V. INIapes 590 v. Morris 104 v. Pye 735, 769 V. Stetson 459 i\ Trager 175 Jenks V. Fritz 610 r. Fullmer 571 V. Shaw 775 Jenners v. Howard 104 Jenness v. Lane 204, 832 V. Mount Hope Iron Co. ... 43 Jennings r. Broughton 693 V. Gratz 652 r. Johnson 454, 912 V. Lyons 544, 548 V. McConnell 736 v. Rundall 83 Jennings' Appeal 134 Jenson r. Lee 337 Jepherson v. Hunt 109 Jervis ii. Berridge 312 r. Tompkinson 542 Jester r. Sterling 264 Jesup r. City Bank 853 v. Illiiaois Central R. R. Co. 246 259, 723 Ixxxii TABLE OF CASES. PAGE. Jewell V. Neidy 451, 4(J0 Jewelers' Pub. Co. v. Jacobs 140 Jewell r. Schroeppcl 345 Jevvett V. Carter 701 V. Railroad Co 135 Jewitt V. Eekhardt 183 Jilson V. Gilbert 176 Johannes v. Phenix Ins. Co.. 259, 267 277 Johannessen v. Munroe 25 John V. Sabattis 175 John Brothers Co. ;;. Holmes .... 301 John Griffiths Cycle Corp. v. Hum- ber & Co 180 John V. Farwell Co. v. Nathanson. 679 V. Wolf 456 Johnasson v. Bonhote 783 Johns V. Fritchev 104 r. Wilson .' 259, 260, 263 Johnson v. Allen 331 v. Bank 859 V. Bernheim 136 V. Bloodgood 295 r. Bragge 634, 638 i-. Brown 852 r. Buck 109, 182 V. Carpenter 292 V. Christian 106 r. Cummins 889 r. E. C. Land Co 173 r. Elkins 440 r. Eveleth 571 r. Fall 400 V. Filkington 27 c. Gallagher . 888, 893, 894, 895 r. Heagan 8G5 V. Hilton 451 r. Hubbell 467 r. Hudson 402 V. Hulings 402, 497 V. Hunt 464 r. Insurance Co 68, 489 i\ Johnson 743 V. Johnson's Adm 199 r. Kimball 11, 201 V. Kineade 98 r. Knapp 257 V. Lansley 499 r. Lines 77 t: Lusk 89 r. McClung 250. 259 f. Meeker 349, 405 V. Monnell 079 V. Moore 850, 851, 861 r. Otterbein University .... 187 r. Parker 864 r. Parmely 275 r. Peck . ". 717 r. Peterson 393 f. Pie 82 V. Portwood 832 PAGE. Johnson r. Railroad Co 774 V. Raylton 315 IK (Stephenson 43 r. Stockham 089 V. Terry 461 r. Tyng 332; r. Van Wyck 451 V. Walker 545 r. Watson 789 V. Way 291 r. Whitman Works 608 V. Wilson 175 Johnson's Adm. v. Seller's Adm.. 210 Johnson's Appeal 390 Johnson Forge Co. v. Leonard... 332 Johnson Harvester Co. ;;. McLean. 868; Johnston v. Allen 488 V. Boyes 18 r. Cole 662 r. Crawley 160 r. Georgit Co 17 r. Hussey 778 V. Jones 175 r. Lobat 174 r. McConnell 402 • r. May 861 r. Miller 408, 409 r. Patterson 572, 584 r. Rogers 19 — — v. Russell 502 r. Trippe 28 Johnstone r. Marks 77 r. Milling.... 341, 348, 367, 368 Joliffe r. Baker 673 Jonassohn r. Young 332, 339 Ex i^arie 86, 889, 891 Ee ([1893] 2 Ch.) 65, 800 Jones V. Ames 407 V. Backley 321 V. Bacon 171 r. Bangs 871 r. Bank 14, 487, 775 r. Booth 822 V. Broadhurst 291, 593 594, 840, 841 r. Brown 707 r. Caswell 470 r. Cavanaugh 501 V. Chamberlain 83(> V. Clifford 576, 615 r. Clifton 415 r. Colvin 77 v. Comer 177, 552, 789 r. Crowley 859 r. Daniel 44 r. Dannenberg Co 440 r. Degge 749- r. Emerv 680 r. Fleming 890 r. Foster 259 r. Gibbons 30O TABLE OF CASES. Ixxxiii PAGE. Jones V. Giles 913 V. Gordon 291 V. Harris 878, 888, 895 V. Hay 177 V. Higgins 272 V. Hoard 869 V. Hodgkins 106 V. Holm 54:] r. Hook 780 V. Houghton 729 i\ Humphrej's 279 V. Insurance Co 116, 275 V. Jamison 877 i\ Jones 283, 465, 743, 745 780, 788 V. Judd 525 652 292 478 387 285 176 V, Just V. Lane r. Lees r. Lloyd r. Lowery — V. McMichael — V. Merionethshire Building Society 440, 443 — V. Mial 352 — V. Nat. Bid. Assn 701 — V. North 473, 516 — r. Pacific Wood Co 258 — V. Parker 85 — V. Pashby 175 — 17. Peterson 729 — V. Pouch 176 — V. Quinnipiack Bank 813 — r. Railroad Co 550 — i\ Ransom 837 — r. Reeves 175 — r. Rice 442 — i\ Ricketts 759 — i\ Rimmer 670 — v. Risloy 204 — V. Robinson 235 — r. St. John's College, Ox- 529 V. Sarchett 385 V. Sevier 409 r. Shackleford 664 r. Shelbyville Ins. Co 872 r. Shorter 171 V. State 590 ('. Surprise 486 r. Sweet 638 r. Thomas 258, 269, 276 r. L^nited States. 523, 528, 539 V. Victoria Dock Co... 180, 181 i\ Voorhees 54 r. Waite 194, 207, 417, 484 r. Walker 550 r. Ward 384 V. Wehvood 879 V. Williams 439 ford PAGE. Jones V. Witter 284 Jones County v. Norton 11 Jordan r. Coffield 79 V. Dobbins 42 r. Donahue 253 r. Great Northern Ry. Co.. 211 r. Indianapolis Co 197 r. James 571 r. Jordan 774 V. Katz 822 Loftin 662 Osgood 679 Parker 716 Railroad Co 130 Sayre 775 Stevens 616 r. Stewart 873 V. ^^'esterman 444 V. White 257, 261 Jorden r. Money. . . 791, 916, 917, 919 Jorgensen r. Jorgensen 791 Joseph r. McCowsky 419 Josephs r. Pebrer 296 Joslin r. Cowee 708 V. N. J. Car Spring Mf:. Nicholson 119 V. Payn 847, 853, 869 • r. Sclienck 854, 869 r. Seabury 173 1-. Simons 199 r. Tapman 178, 361 365, 685 r. Tilton 122 r. Tipton 52 v. Welch 402 V. Wood 179 Lewy V. Crawford 501 PAGE. Lexington v. Butler 144 Leyland r. lUingworth 601, 604 — — V. Stewart 183 Libby v. Douglas 552 V. Downey 402 Liberman v. Gurensky 778 Liberty Paper Co. v. Stoner Co. . . 595 Licey r.Licey 843, 844 Litchfield r. Baker 581 Lichtenstein r. Brooks 303 Lieberman v. First Bank 704 Liening iK Gould Z04 Life Association of Scotland v. Siddal 722 Light V. Killinger .^ 864 Lightbone V. Weeden 847 Lightburn v. Cooper 608 Lighthall r. Moore 505 Ligon's Adm. r. Rogers 577 Liles V. Terry 741 Lilient'ial v. Suffolk Co 692, 693 Lillard v. MUchell 501 V. Turner 891 Lilley v. Ford 778 Limer v. Traders' Co 12 Limited Investment Assoc, v. Glendale Investment Assoc. ... 691 Lincoln r. Battelle 780, 781 r. Lincoln 872 V. Rowe 889 Lincoln College Case 61 Lindauer v. Hay 679, 699 LindcU r. Rokes 196 Lindlcy r. Hofman 585 Lindo V. Lindo 025, 815 Lindsay v. Cundy 592 i\ Smith 440, 442, 482, 484 V. Wilson 281 Lindsay Petroleum Co. v. Hurd.. 091 722 Lindsey v. Veasy 672, 698 V. Lamb 855 Lindus i\ Bradwell 110 Line r. Blizzard 729 • V. Nelson 212, 813 Linington r. Strong 850 Linker v. Smith 393 Linn v. Barkey 640 V. McLean 39 i\ Rugg 295 Linneman r. Moross 250, 252 Linton r. Allen 624 Lipp r. South Omaha Co 282 Lishman v. Northern Maritime Insurance Co 797 Liska r. Lodge 584 Lisle V. Rogers 859, 861 Lister v. Hodgson 643 r. Lister 417 V. Pickford 570 TABLE OF CASES. XCl PAGE. Xister v. Stubbs 392 Listen i. Jenkins 623 Litchlield v. Flint 258 Litt V. Cowley 571 'Littauer v. Goldman 607, 654 Little V. Banks 249, 251 V. Fowler 869 V. Horndon : . . . . 873 r. Little 789 V. Martin 788 V. McCarter 170 r. Poole 402 Little Rock, etc., Co. i: Walker . . 565 Littlefield v. Coombs 864 V. Smith 285 I'. Story 284 Little John r. Gordon 775 Livermore v. Land Co 689 V. Northrup 786 r. Peru 579 Liverpool Ins. Co. v. Creighton . . . 448 Liverpool Wharf v. Prescott 175 Livings r. Wiler 443 Livingston v. Lynch 134 v. Ralli 445 Lizzie Merry, The 595 Llanellv Ey. and Dock Co. v. L. & N. W. Ry. Co 218, 447 Lloyd V. Attwood 722 V. Banks 283 V. Brewster 708 V. Clark 745 v. Colston 388 V. Conover 175 l\ Crispe 524 r. Guibert 318 V. Nowell 44, 47 Lloyd's Bank v. Pearson 283 Lloyd's Bank, Ltd. v. Bullock 588 Lloyd Edwards, Re 29 Lloyds V. Harper 242 Load r. Green 679, 712, 716, 722 Loader r. Clarke 394 Lobdell r. Bank 378 V. Mason 174 Locke V. Homer 270 I V. Locke 610 V. Smith 80 V. Stearns 701 Locknane V. Emmerson 858 Lochren v. Rustan 488 Lockwood r. Fitts 715 V. Stockholm 90 Lockwood Co. r. Mason Co 51 Loder V. Hatfield 253 Loeb V. Flash 716 V. Peters 717 t\ Stern 408 V. Trustees 147 V. Weis 25/ r. Willis 273 PAGE. Loewer r. Harris 681 Lofft r. Dennis 531, 532, 534 Lotlus V. Maw 917 Log Cabin Assoc, v. Gross 275 Logan V. Davidson 839 c. McGinnis 467 r. Miller 586 r. Musick 408, 409 v. Simmons 394 r. Smith 292 Logan County Bank r. Townsend. 503 Lohre r. Aitchison 320 Lomerson v. Johnston 747 London Assurance Co. v. Mansel. 657 658 London Chartered Bank of Aus- tralia V. Lampri&re 725, 888 London, etc., Co., Re 548 London Dock Co. r. Sinnott 163 London Joint Stock Bank v. Mayor of London 129 r. Simmons 294 London Land Co. v. Harris . . 726 London. Mayor of v. Cox 566 London and Northern Bank, Re. . 31 41 London and N. W. Ry. Co. r. M'Michacl 67, 73, 74 London and Provincial Insurance Co. V. Seymour 726 London and S. W. Ry. Co. r. Blackmore 625, 815 London and S. W. Ry. Co. v. Gomm ■ 302 London Trust Co, v. Mackenzie.. . 132 Lonergan r. Buford 731 Long V. Battle Creek 49 ■ V. Brown 199 r. Chicago, etc., Ry. Co ... . 259 V. Dollarhide ... 174 V. Hartwell 822, 823 r. Long 685 v. Mulford 733, 737 ■ r. Xeville 205 v. Ferine 311 i\ Railway Co 141 r. Rankin 200 i: Rhawn 295 r. Scanlan 832 i; Thaver 106 V. Towl 215 V. White 173 V. Woodman 689 Longenecker c. Church 720, 737 Longmate v. Ledger 750, 751 Longnecker r. Shields 486 TiCngshore r. Longshore 459 Longworth v. ^Mitchell 29 Lonsdale r. Bank 25 Lookout ]\Iountain R. R. Co. v. Houston 258 XCll TABLE OF CASES. PAGE. Tx)omis V. Newhall 199 Loque t'. Smitli 864 Loranger v. Jardine 402 Lord 0. American Assoc 585 V. Grow 654 V. Lord 252 V. Parker 893 V. Thomas 349 V. Wheeler 537 Lorentz v. Conner 402 Lorillard, Re 778 Lorillard v. Clyde.. 249, 250, 375, 535 Lorimer v. Lorimer 158 Loring r. Boston 23, 24, 30 r. Folger 566 Los Angeles Traction Co. v. Wil- shire 34, 35, 343 Losecco -v. Gregory 539 Losee v. Morey 753 Loss V. Obry 636 Lothrop i\ King J378 V. Marble 790 Ix)ud r. Hamilton 441, 748 v. Loud 415 V. Pomona Land Co 324 Loudenback r. Tennessee Co.. 197, 332 Louis V. Connecticut Ins. Co 658 Louisiana v. Mayor 12, 157 Louisville v. Henning 579 Louisville Asphalt Varnish Co. v. Lorick 180, 182 Louisville Banking Co. v. Eisen- man 125 Louisville, etc., R. Co. v. Alex- ander 893 Louisville, etc., R. Co. v. Donne- gan 449 Louisville, etc., R. Co. v. Helme. . 839 Louisville, etc., R. R. Co. v. Offutt 176 V. Whitman 130 Louisville Ry. Co. v. Sumner 437 Louisville Trust Co. r. Railroad Co 137 Lound V. Grimwade 440, 445 Lounsbury v. Beebe 6i:9 Love V. Hackett 777 V. Harvey 406, 502 V. Hoss 390 • V. Shoape 857 Lovejoy t). Howe 257, 267 V. Kaufman 498 r. Michels 468 Ijcvell r. Insurance Co 548, 550 Lovelock V. Franklyn 358, 359 Loveren r. I^ovoren 444 Loveridge v. Cooper 281 Lovering r. Coal Co 535, 536 Lovesy v. Smith 642 Lovett V. Steam Saw Mill Assn. . 160 Loving V. Milliken 631 PAGE. Low V. Argrove 865 V. Railroad Co 226- Lowber v. Connit 180, 181 Lovvden v. Schoharie Bank.. 867, 86S Lowe V. Hamilton 261 r. Harwood 353, 364 V. London and N. W. Ry. Co 163, 167 V. Peers 465 V. Sinklear 67 Lowell r. Daniels 87, 88 Lowenstein v. Glass 708 Lower v. Winters 174 Lowery v. Cate 82 Lowis V. Rumney 776 Lowremore v. Berry 854 Ldwry V. Adams 25 v. Dillman 406 r. Spear 450 Lowther v. Lowther 388 Lozear v. Shields 104 Lucas V. Allen 434 V. Anstey 917 r. Crippen 691 r. Dixon 182 r. Mitchell 633 V. Scott 666 Lucas Co. V. Roberts 386 Luce r. Gray 249, 251, 252- Lucesco Oil Co. v. Brewer 332: Luckett r. Williamson 664, 792 Luckhart v. Ogden 180 Lucy V. Bundy 787 Luddy's Trustee r. Peard 741 I.uders v. Anstey 917 Ludington r. Bell 211 r. Ford 639 r. Patton 706 Ludlow V. Hardy 809 Ludlow, Mavor of r. Charlton... 159 164 Ludwig i\ Gillespie 112 Lufkin Rule Co. v. Fringeli 468 Luhrs i\ Hancock 101 Luker v. Dennis 304 Lum r. McEwen 377, 437, 439 Lumberman's Co. v. Gilchrist.... 528 Lumley v. Gye 225 v. Railway Co.... 584, 625. 725 Lumsden's Case 64 Luney v. Mead 261 Lungstrass t'. German Ins. Co ... . 39 Lunt V. Silver 862, 863, 872 Lupkin t\ Mayall 67 Lurman. Matter of ". . . 878 Lush's Trusts 795 Luxon & Co. (No. 2) 73 Lyall V. Edwards 626 Lyddon v Moss 741 Lvdick r. Railroad Co 50, 302 TABLE OP CASES. XCUl PAGE. Lydig V. Braman 181 Lyle r. Shinnebarger 173, 575 Lyman v. Brown 877 V. Insurance Co 639, 640 V. Kansas City R. Co 573 r. Lincoln 249, 251, 254 V. Robinson 46, 47 V. Suburban K. Co 437 V. Townsend 487 Lynch, Ex parte ^. 86 Lynch v. Curf man 608 V. Fallon o88 V. Hicks 804 V. Mercantile Trust Co.... 695 701 r. Moser 261 V. Rosenthal 406 LjTide V. Anglo-ltalian Hemp Spinning Co 702 v. Lynde 444 Lynn v Bruce 826, 830, 832, 834 Lyon V. Annable 334 V. Bertram 607 i: Culbertson 406 c. Hajiies 297 V. Home 746, 922 r. Lyon 914 r. Mitchell 436 V. Waldo 727 Lyons v. Blenkin 462 — — V. Briggs 691 Lvsaght r. Bryant 56 Lyth v. Ault 211 Lytle 11. Breckenridge 354 M. McAfee v. Ferguson 393 V. McAfee 786 McAlister ly. Marberry 276 r. Safley 349 ]\IcAlIister v. Mitchner 849 Mc Andrews v. Tippett 551 McAnnulty v. McAnnulty 793 r. Seick " 631 McArthur v. Goddin , . 780 V. Times Printing Co.. . 121, 226 Macbeath v. Haldimand 112 McBlair v. Gibbes 431, 490 McBratney v. Chandler 436 McBride v. Floyd 258 V. Insurance Co 428 Macbryde v Weekes 629 McCabe t'. Grey -. 286 v. O'Connor 186 McCall's Adm. v. Hampton 460 ]\rCal]an v. Mortimer 498 JVIcCandless v. Allegheny, etc., Co .' . . 205, 426 PAGE. McCann v. Lewis 205 McCardle v. Kennedy 335 McCarren v. McNulty 51 McCarteney v. Wyoming Nat. Bank . .* 200, 276 McCarthy v. Decai.x 579 V. Henderson 68 V. Insurance Co 289 r. Mt. Tecarte Co 284 V. Nicrosi 68 McCartney v. Shepard 495 McCarty v. Hampton Bldg. Assn. 204 V. New York Ins. Co 713 r. Woodstock Iron Co 67 jMcCasland v. Doorley 256 McCaughey v. Smith 862, 863 McCauley r. Coe 33 McCausland's Estate 158 McCeney v. Duvall 608 McClain v. Davis 102 McClair v. Wilson 729 McClallen V. Adams 801 McClanahan v. McKinley 691 McClaskey v. Barr 106 McClatchie r. Haslam 441 M'Clean v. Clydesdale Banking Co 293 McClean r. Kennard 573 Maclean's Trusts 440 McCleandon i\ Kemp 879 McClellan v. Citizens' Bank 470 r. Kennedy 578 r. Sanford ■ 177, 789 r. Scott 692, 695 McClelland v. McClelland 335 McClintick v. Cummins 729 McClintock v. S. Penn. Oil Co. 39, 107 McClung r. Kelly 652 JlcClure r. Briggs 51 V. Central Trust Co . . . 654, 663 r. Law 377, 391 u. Lewis 737, 745, 770 r. Little 854 V. McClure 444 i\ Miller 393 r. Raben 459 r. Times Pub. Co 37 McClurg V. Terry 3 ■ V. Whitney 816 McColley r. Tlie Brabo 11 McCollum V. Edmonds 194 McComb V. Kittredge 206 McConaughy v. Wilsey 779 McConkey i\ Cockey 740 McConneil r. Barber 786 v. Brillhart ISO r. Hector 430 r. Kik'allen 337 XtIV TABLE OF CASES. PAGE. McConnell v. Kitchens 402 i: Keed 419 Maccord v. Osborne 778 McCormick v. Basal 361 r. Cheevers 17.3 r. Drummett 176 r. Gray 879 V. Legf^ett 67 V. Malin 737, 743, 751, 770 r. Molburg 584 r. St. Louis 839 McCormick Co. r. Knoll 608 V. Lauber 861 V. Miller 729 r. Ockerstrom 51 McCormick, etc., Co. v. CnesrowTi. 51 r. Rae 384 McCormick Machine Co. v. Brown. 350 McCotter r. Mayor, 43 McCoubray v. Thomson 243 McCown V. Schrimpf 262, 274 McCoy r. Able 449 V. Lockwood 866 McCracken r. Clarke 879 V. San Francisco 121 McCracken Co. r. Mercantile Trust Co 774 McCray v. Railroad Co 135 McCreery v. Day 341, 827, 836 McCrillis v. Bartlett 99 • V. Carlton 715 r. How 81 McCroskey v. Ladd 324 M'Culloch r. Gregory 672 McCulloch V. Insurance Co 39 r. Scott 715 McCullough V. Baker 332, 337 V. Franklin Coal Co 837 V. Virginia 482 McCune v. Lytle 878 MeCurdy V. Rogers 120 McDaniel v. Gray 335, 344 V. Whitsett 856, 858 McDaniels v. Rutland 839 McDermott v. Evening Journal Assn 130 McDill V. Gunn 261 McDonald, lie 384 V. American Bank 238, 240 247, 249, 260 V. Bewick 27 Macdonald v. Bond 878 McDonald r. Born 486 V. Buckstaff 436 V. Chemical Nat. Bank.... 40 V. Crosby 789 f . Dickson 157 V. Huff 27 r. Jackson 844 r. Kneeland 285 PAGE. Macdonald v. Law Union Insur- ance Co 658 Macdonald v. Longbottom 314 McDonald v. Lund 500 r. McCoy 121 V. McDonald 459 V. Mountain Lake Co 836 V. Sargent 66 r. Yungbluth 634 McDonough v. Webster 501 MacDougall v. Gardiner 897 McDougall V. Perce 735 V. Walling 384 McDowell V. Hendrix 541 V. Laev 259, 276 r. Simms 684 McDuffie V. Dame 295 r. Sinnott .' 781 McElhenny v. Hubert Oil Co.. 389 676 McEImoyle r. Cohen 780 McElrov r. Carmichael 406 r.-Ludlum 178, 789 r. INIaxwell 584 V. Percheron Horse Co 125 V. Swope 174 McElven v. Sloan 199 McElwee v. Bridgeport Land Co. 324 353 McFadden v. Henderson. . 45, 112, 629 r. Jenkvns 244 r. Leekk 134, 296 v. Wilson 284 McFarlin v. First Bank 598 McGann r. Marshall 63 McGavock r. Morton 871 V. Purver 487 McGee v. Hall 722 McGeehen r. Duffield 878 McGibbons r. Wilder 695 McGill r. Wallace 876 McGilvray v. Avery 8i7 McGinn r. Tobey 589 McGinty v. Henderson 779 McGiverin v. James 39 McGoren v. Avery 612 McGovern v. Hern 179 McGowan i\ Reid 775 McGowen v. West 788 ]\IcGrann r. North Lebanon R. Co. 827 McGrath v. Clark 871 r. Gegner 332 r. Kennedy 501 McGraw v. Solomon 717 McGreal v. Taylor 68. 82 Macgregor r. Dover & Deal Rv. Co .'. 139 McGregor r. McGregor. . . 93. 177. 414 McGregor, etc., R. Co. r. Sioux Citv, etc., R. Co 879 TABLE OF CASES. XCV PAGE. McGuire v. Adams 82 1 V. Caskey 30G V. McGuire 249, 4(J7 V. Pitts 285 McGunn v. Hanlin GIO McHarry r. Irwin 745 McHenrV v. Da vies 894, 895 ■ r. buffield 119 r. Hazard 720 McHugh V. County of Schuylkill. 443 r. O'Connor 299 Mclntire v. Cagley 633 Mcintosh V. Aubrey 440 V. Miner ... '. 826, 827 Mclntyre v. Ajax Mining Co. . . . 206 r. Parks 432, 486, 507 V. Velte 851 V. Williamson 625 V. Yates 241 McKaniy v. Cooper 82 McKanna v. Merry 77 Mackay, Ex parte 401 Mackay v. Commercial Bank of New BrunsAvick 700 Mackay v. Dick 551 McKay v. Jackman 194 V. Simpson 577, 636 r. Ward 262, 265 V. Williams 387 McKecknie v. Ward 385 McKee r. Eaton 695 V. Lamon 238 v. Manice 502 V. Miller 549 McKee's Adm. v. Purnell 99 McKeen r. Morse 839 V. Olyphant 880 McKenna r. Kirkwood 286, 295 r. Rowlett 889 Mackenzie v. Coulson 641 McKenzie v. Donnell 101 r. Harrison 827 r. Hesketh 601, 605 r. Lego 388 r. ^IcKenzie 577 r. Nevins 109 V. Rothschild 679 Mackenzie v. Seeberger 690 McKenzie r. Weineman 700 McKewan r. Sanderson 378, 380 McKinlay r. Gaddy 776 ]\IcKinney v. Andrews 486 r. Cobell 863 V. Harvie 786 V. Hensley 744 r. McCloskey 177 r. Pinckard 751 McKnight Flintic Stone Co. v. flavor 530 PACK. McLachlin v. Brett 108, 114 McLanahan r. Insurance Co 656 McLaren r. Hutchinson 256 McLaurin r. Wilson 88 McLay v. Bruce Co 130 McLean r. Bank 142 V. Brown 326 V. Clapp 721 McLees v. Hale 177 McLennan r. Boutell 174 V McLennan 397 McLeod V. Bullard 630 McMahan r. Smith 736 McMahon v. Borden 404 V. McGraw 387 V. Rooney 725 r. Smith 440 McManus v. Bark 206, 212 V. Cassidy 344 r. Cooke 790 McMath V Johnson 324 McMerty v. Morrison 780, 781 McMicken v. Beauchamp 873 McMillan v. Ames 35, 55 I'. Fish 577, 639 V. Fox 536 — — V. Harris 684 r. Hefferlin 857 r. Railroad Co 54 r. Solomon 532 McMillen v. Pratt 174 McMinn r. Richmonds 81 jVIcMinns Legatees v. Phipps 470 McMullen v. Hoffman 434, 470 498, 500 McMurphy r. Garland, 827 McMurtey v. Sparks... 854, 8o8, 861 McXab V. Young 855 McNaught V. Fisher 199 McXaughten v. Patridge 875 McXaughton v. Conkling 25 McXear v. Bailey 879 McXeil V. Bank .' 294 V. Jordan 586, 589 McXeile r. Cridland 701 McXeilly r. Insurance Co 106 McXeill's Case 711 McXish V. Reynolds 206 McXutt V. Dix 391 McParland v. Larkin 736 McPherson r. Cox 451, 728 i\ Fargo 180 V. Watt : 741 McQuade r. Rosecrans 483 IMcQuaid r. Ross 607 McQueen r. Burhans 723 r. Wilson 736, 740, 746 McQuie V. Peay 855 McRaven v. Crisler 854 McSparran r. Xeeley 102, 292 XCVl TABLE OF CASES. PAGE. McVeigh v. United States 4:i0 McVey v. Cantrell 891 McWilliams r. Webb 285 M. F. Parker, The 650 M. & M. Railroad Co. v. M. & W. Railroad Co 456 Mabry v. Bullock 402 Macauley i'. Smith 630 Macey v. Childress 171 Mack V. Bragg 789 i\ Prang 441 Mackey v. Mackey's Adm 48 V. Peterson 585 Macknet v. Macknet 579 Maclay v. Harvey 29 Maclure, Ex parte 548 Macomber r. Detroit, etc., R. Co. 784 I-. Pcckham 634 Mactier's Adms. r. Frith 28, 39 Macullar v. McKinley 699 Madan v. Sherard 53 Jladden i\ Boston 5 r. Floyd 786 ]Maddison v. Alderson 650, 782 784, 790, 795, 917 Maddon v. White 62, V 4 Mader v. Cool 204 V. Jones 608 ]Madhub Chumder Poramanick v. Rajcoomar Das 481 Madison Ave., etc., Church t\ Bapt. Church in Oliver street.. 141, 142 Madison Co. v. Brown 137 Madison Plk. Rd.. Co. i\ Water- town Plk. Rd. Co 142 " Madras," The 537 Maffet V. I jams 470 Magaw V. Lambert 533 Magdalen Hospital, Governors of V. Knotts 61 Magee v. Allison 874 • V. Insurance Co 660 V. Lavell 632 V. Scott Lumber Co 51 Magennis v. McCullock 846 Magers v. Dunlap 865 Maggart v. Freeman 699 Magnes v. Sioux City Seed Co. . . . 330 Magnolia v. Sharman 731 Magnolia Metal Co. V. Price 468 Magoon v. Marks 204 Magruder v. Peter 775 Maguire r. Eichraeier 869 V. Maguire 685 ?'. Smock 436 ]Mahaffey r. Ferguson 654, 694 Mahaiwe Bank v. Douglass 872 Mahan v. United States 782 Maher v. Martin 199 v. Van Horn 502 PAGE. Maher's Est., Re, 158 Mahoney r. McLean 110 V. East Holyford Mining Co 898 Mahood v. Tealza 486 Main r. Ryder 735 Main Street Co. v. Los Angeles Co 204 Mainprice r. Westley 18 Maitland v. Backhouse 769 r. Irving 736, 744 Majestic, The 53 Major r, Kelly 383 JNIajors t-. Hickman 550 ]\Iakemson v. Kauffman 436 ilalcolmson v. Wappoo Mills.... 543 Maldaner v. Smith 874 Malins v. Freeman 61, 600 Mallalieu i: Hodgson 203, 204, 379 Mallet V. Bateraan 171 V. Simpson 141 V. Lewis 176 Mallinckrodt Works v. Xemnich.. 468 Mallory r. Gillett 172 r. Insurance Co 658 r. Leach 681 r. Oil Co 143, 408 V. Stodder 845 Malone v. Crescent Co 256 i\ Keener 171 r. Kelly 730 V. Railroad Co 53 Maloney v. Xelson 443 Malott V. Wilson 55 Maltby v. Austin 692 V. Eisenliauer 361 ^klanby v. Scott 889 Manchester v. Braedner 778 V. Tibbetts 780 Manchester, Mayor of v. Williams. 129 Manchester Brewing Co. V. Coombs 279 Manchester Ry. Co. v. Concord Ry. Co 500, 503 Manchester Ship Canal Co. v. Pearson 448 Manderbach V. Bethany Orphans' Home 300 Mandeville v. Welch 282 Mandlebaum v. Gregovitch 402 Manes r. Durant 394 Maness r. Henry 820, 864 Mangles V. Dixon 286 Manhattan Brass Co. v. Keger. . . 704 Manhattan Co. i: Ironwood 137 c. Thompson 892 Manhattan Ice Co., Re 363 Manhattan Medicine Co. v. Wood. 419 Manikee v. Bovd 395 Manistee, Tlie' 402 TABLE OF CASES. XCVU PAGE. JMann v. Farnum 11 V. Mercliants' Trust Co ... . 285 r. Richardson 120 V. Russey 749 V. Stephens 304 Mannakee v. McCloskey 211 Manning i\ Albee 090, 091 f. Columbian Lodge 441 i: Johnson 68 V. Maroney 864 V. Pippen 177, 789 V. Riley 792, 794 Manny v. Frasier 257 Mansfield v. Gordon 63, 66 V. Hodgdon 28, 309 V. Lynch 579, 581 r. Mansfield, Re Cuno 95 V. Mayor of New York 277 V. N. Y. Central R. R. Co.340, 551 V. Trigg 653 V. Watson 101 Manter v. Churchill 213 Manton v. Gammon 34G Manuel v. Campbell 880 Manufacturers' Bank t\ FoUett.. 864 i: Iron Co 389 Manufacturing Co. v. Burrows. . . 257 Maple V. Railroad Co 116 Marble v. Grant 380 ;;. Standard Oil Co 49 Marble Bank v. Mesarvey 265 Marcett v. Wilson 253 March i: Pike 262 V. Railroad Co 135, 879 Marchant v. Morton, Down & Co. . 279 Marcy v. Crawford 495 V. Dunlap 847, 851 V. Marcy 177, 789 Marden v. Dorthy 585, 589 V. Phillips 491, 498 Margrett, Ex parte, Re Soltykoff . . 80 Marie v. Garrison 470 Marienthal v. Mosler 778 Marigny i\ Remy 257 Marines v. Goblet 791 Markel r. W. U. Tel. Co 249, 254 Marking v. Needy 205 Markley v. Mineral City 142 Markowitz v. Greenwall Co 361 Marks v. Davis 789 V. Schram 443, 856 r. Taylor 636 V. Van Eghen 360 Marksbury v. Taylor 413 Marlett v. Jacknian 106 r. Wilson 249 Marquand v. N. Y. Mfg, Co 595 Marqueze v. Caldwell 180 Marr v. Hanna 282 V. Hobson 849, 850 Marriot v. Hampton 731 vii PAGE. Marseilles v. Kenton 878 Marsh v. Fulton 135 V. Garney 284, 285 V. Gold 205, 495 V. Low 607 V. Rainsford 200 r. Russell 470 V. Whitmore 387, 390 Marsh and Earl Granville 671 Marshall v. Baltimore and Ohio Railroad Co 125, 434 V. Berridge 573 r. Bullard 211, 841 V. Caldwell 664, 668 V. Carson 387 V. Collett 539 V. Craig 549, 557 v. Ferguson 173 r. Oilman 715 V. Green 173 V. Lynn 823, 824 V. Mackintosh 353 i: Marshall 41o V. Means 456 r. Button 89 V. Sherman 432 v. Thompson 630 V. Thurston 407 V. Westrope 577 ilarshalltown Stone Co. v. Des Moines Brick Co 470 Marstin r. Hall 809 Marston v. Bigelow. .248, 249, 253, 622 r. Marston 844 V. Simpson * . 722 V. Swett 194 Marten -v. Burns Wine Co 709 Martendale v. Follett 870 Martin v. Adams 380 v. .^tna Ins. Co 268 V. Black 171 I'. Buffalo 855 V. Chapman 353 V. Clarke 450, 451 u. Frantz 212 V. Gale 80 V. Hodge 499 r. Jennings 777 V. Kunzmuller 280 V. L. C. & D. Ry. Co 226 i\ McCorniick 616 V. Marlow 459 V. Martin 387, 768 r. Meles 187, 361 V. Merritt 606 V. Moulton 388 i\ Northwestern Fuel Co. . . 43 r. Pycroft 310, 635 t'. Quinn 841 V. Railroad Co 577 r. Richardson 499 XCVllI TABLE OF CASES. PAGE. Martin v. Smith 584 V. Smylee 585 V. Thomas 857 0. Tradesmen's Ins. Co.. 852, 853 8t)0 v. Wade 438, 439 V. Wharton 688 Martin's Claim 798 Martin-Alexander Co. i\ Johnson. 831 Martindale v. Smith 335 Marvel v. Phillips 543 Marvin v. Bennett 612 V. Treat 23 Marx r. Luling Assoc 864 V. McGlynn 736, 746 Marysville Co. v. Johnson 226 Mashburn v. Donnenberg Co 717 Mason c. Campbell 199 V. Crosby 694, 701 V. Decker 181 r. Frick 145 V. Hall 256 v. Harris 897 L\ Jordan 88 v. Lawing 344 V. Martin 387 v. Payne 408 v. Pewabic Mining Co 135 V. Ring 740 Mason & Hamlin Co. v. Bancroft. 384 Maspons y Hermano v. Mildred. . 109 114 Mass V. Bromberg 175 Mass. Mut. L. I. Co. v. Robinson. 241 Massey v. Da vies 391 V. Wallace 411 Massie v. Bvrd 431 Master v. Miller 852, 866 Masterson v. Masterson 92 Masury v. Southworth. . .298, 299, 304 Materne v. Horwitz 376, 419, 486 Mather r. Day 880 V. Lord Maidstone 213 Mathers v. Carter 256 Mathesius v. Railroad Co 786 Matheson v. Ross 798 ^Mathews v. Cowan 83 Mathias f. Leathers 853 Matlack's Appeal 815 Matlock V. Todd 695 r. Wheeler 856 Matteson v. Ellsworth 869 V. Holt 608 V. Scofield 45 Matthewman's Case 892 Matthews r. Baxter 103 V. Bliss 697 r. Coalter 873 V. Fitoh 35 r. Houirhton 282 r. Lisrht 387 r. :\IcStea 428, 429 PAGE, Matthews v. Matthews 361 V. Poythress 291 V. Wallwyn 300 Matthewson, Case of 845 r. Clarke 595 r. Fitch 22. V. PhcBnix Iron Foundry. . . 158 Matthiessen, etc., Co. v. McMahon's Adm 100, 102, 106 Maunsell v. Hedges White... 916, 918 Mavor v. Pyne 337 Maw r. Topham 668 Mawson v. Fletcher 665 Maxfield r. Burton 284 v. Schwartz 257, 267, 272 Maxim Xordenfelt Co. v. Norden- felt 476, 477 Maxon r. Scott 890 ]\Lixwell i\ Griswold 731 May r. Hewitt 110 '- V. King 817 V. O'Neill 479 v. Piatt 601, 634, 637, 644 r. Williams 171 Mayd v. Field 889, 890 Mayer v. Adrian 179, 182 V. Chattahoochee Bank.. 239, 245 r. Dean 701 V. McCreery 49 i\ Mayor, etc., of N. Y 575 V. Sov.ster 893 Mayfield r.'Xale 802 Mayger (7. Cruse 217 ]\Iavhew V. Cooze 820 V. Crickett 386 Mavnard v. Eaton 711 V. Hill 685 i\ Insurance Co 130 Mayne's Case 353, 356 Mayo V. Knowlton 388, 603 Mayor v. Bailey 257 V. Lever 392 the (of Nashville) v. Ray.. 146 147 V. Wetumka W^harf. Co. . . . 146 Mays V. Carrington 757 V. Joseph 49.5 Maze i\ Owingsville Banking Co. . 654 Meacham v. Dow 438,439 V. Meacham 175 Mead r. Bunn 695 V. Insurance Co 639 r. Norfolk R. Co 577 r. Phenix Ins. Co 599 Mead v. Young 569 Meaher v. Cox 449 Meares, In re 99 Mearing V. Hellings 503 Mears r. Wapples 716 Mease r. Wagner 160 Meason V. Kaine 174 TABLE OF CASES. XCIX PAGE. Mechanics' Savings Bank r. Goff. 262 Mecorney v. Stanley 213 Medbury r. Hopkins 780 r. \Yatrous '. - 67 Medlin c. Commonwealth 558 r. Platte Co 853 V. Steele 175 Jledlock r. Merritt 98 Medsker v. Richardson 257 Meeeh v. Ensign 261 Meek r. Perry 736, 737 [Meeker v. Johnson 342 v. Winthrop Iron Co 389 Meeker Co. Bank v. Young .... 299 Meeks r. Dewberry 45 i V. Stilhvell 643 Megaw V, IMoUov 620 Megher r. Stewart 269 Megrath v. Gray 384 MeGuire r. Corwine 436, 438 Meier i\ Hess 281,285 Meigs (". Dexter 6, 55 Meiley v. Butler 88 Meinke v. Nelson 173 Meister r. Moore 158 Meiswinkel v. St. Paul Ins. Co.. 640 r. Jung 515 ^Melbourne Banking Corporation r. Brougham 147 Meleher c. Insurance Co 214 Melchert r. Telegraph Co 406 Melchoir v. McCarty. . 399, 400, 809 Melhado r. Porto Alegre Rv. Co. 235. 243 Melledge r. Boston Iron Co 110 Mellen V. Whipple 259, 260 Melvin v. BuUard 844 Memphis, Citv of, i*. Brown . . 493 Mendall r. Davis 816 Mendenhall v. Treadway 720 Menier i\ Hooper's Telegraph Works 897 Menifee v. Clark 384 Menke v. Gerbracht 384 Mente v. Townsend 864 Mentz V. Newwitter 179 Mercantile Bank of London r. Evans 279 Mercantile Co. v. Corcoran 282 jMercantile Trust Co. v. Balti- more, etc., R. R. Co 246, 259 Mercer v. Mercer's Adm 249 Mercer County r. Hackett. . 145, 288 Merchant r. d"Rourke. . . 170, 782, 785 Merchant Banking Co. of London V. Phoenix Bessemer Steel Co. 289, 293 Merchants' Bank i\ Armstrong. 704 i\ State Bank 130, 137 Merchants' Ins. Co. v. Prince. . 389 PAGE. Merchants of the Staple v. Bank of England 147 Meredith v. Crawford 67 r. Ladd 438 Meriden Co. r. Zingsen 170 Merriam r. Cunningham.. 77, 79, 82 r. Johnson 743 c. Lapsley 43 c. Miles 264 V. Railroad Co 88 • r. Wolcott 654 Merrick r. Bourv 869 V. Giddings"^ 210, 274 r. Wiltse 608 Merrick's Estate 109 Merrill r. Carr 441 i: Green 258, 266 V. Monticello 140 V. Peaslee 444 Merrills v. Swift 56 ^lerriman. Re 199 Merriman v. Knox 402 V. McManus 170 V. :Moore 250, 262, 265 r. Social :Mfg. Co 258, 267 Merritt r. Bovden 866 r. Clasoii 180 V. Duf ur 693 r. Duncan 292 r. Lambert 452 i: Merritt 106, 878 r. Millard 498 V. Swimley 462 ]Merriweather v. Xixon 495 Mcrriweather v. Lo^^^ldes Co 528 [Merryman v. Euler 736 Mersereau v. Lewis 170 Mersev Steel and Iron Co. v. Xaylor 328, 330, 340 Mersman r. Werges 863 Merz Capsule Co. r. Capsule Co. 469 Mess V. Duffus 323, 355 Metcalf i: Kent 816 r. Putnam 639 V. Williams Ill Metcalfes's Trusts 768 Meth. Ep. Church v. Jacques.... 891 Methudv r. Ross 47 Methven v. S. I. Light Co 281 Metropolitan Bank v. St. Louis Dispatch Co 774 Metropolitan Coal Consumers' As- sociation, Re 226, 676 [Metropolitan Ins. Co. v. Fuller.. 452 Metropolitan Trust Co. r. New^ York, etc.. Rv. Co 258 Metz r. Todd 264 Metzgar r. Metzgar 286 Mexican Banking Co. r. Lichten- stein 499 Mever v. Ester 886 TABLE OF CASES. PAGE. Meyer v. Haas 583, 584 v. Hanchett 388 V. Hartman 170,270 V. Huneke 852, 870 V. Lowell 257 r. Meyer 876 V. Richards 607, 654 r. Roberts 176 V. Shamp 257 Meyer's Appeal 387 Meyerhoff c. Daniels 701 V. Froolich 777 Meyers r. Bank 383 V. Markham 323, 354 V. Schemp 173 Miamisburg Twine Co. v. Wohl- huter 620 Michael v. Bacon 486 r. Morey 231 Michaell's Case 846 Michel r. Hallheimer 335 Michener V. Payson 720 Michigan Bank v. Eldred 867 Michigan Bolt Works r. Steel 197 Michigan Leather Co. v. Foyer... 839 Jlichigan Trust Co. V. Chapin . . 444 Michoud V. Girod 387 Mickey v. Stratton 160 Middle Division Elevator Co. v. Vandeventer 332 Middleborough v. Rochester 98 Middleburv College r. Chandler.. 79 Middleditch v. Ellis 344 r. Williams 746 Middleton r. Brown 762 Midglev V. Midglev 776 Midland G. W. Ry. Co. of Ire- land i\ Johnson 163, 572 Midland Rv. Co. r. Ontario Roll- ing Mills 341 V. Pye 93 Milberry v. Stover 866 Miles V. Dover Iron Co 749 V. Mclhvraith 113 V. X. Z. Alford Estate Co. 213, 214 r. Schmidt 446, 449 Milford V. Commonwealth 12 V. Water Co 121 Miliani v. Tognini 258 Milks V. Rich 171 Mill V. Hawker 1.32 Mill Dam Foundry v. Hovey 160 553, 558 Millar r. Craig 626 r. Cuddy 50 Millard r. Baldwin 276 Miller r. Amnion 402 r. Ballard 186 V. Benjamin 326 V. Billingsly 249 PAGE. Miller v. Board, etc., of Dearborn Co 140 V. Bomberger 286 r.* Brenham 780 V. Brigham 595 V. Coates 211 r. Cook 759 V. Davis 636 V. Eagle, etc., Ins. Co 406 V. Finley 102, 863 v. Fox 813 V. Gilleland 861 V. Heller 624 v. Hemphill 827 r. Hirschberg 495 i\ Hughes 273 V. Insurance Co 614, 658 V, Junction Canal Co 879 r. Kennedy 262, 264 V. Larson 496 I'. Lea 108, 114, 115 r. Leo 197 r. lord 572 r. McGlann 175 r. McKenzie 22, 35 r. McManis 10 V. McGuire 487 V. Manwaring 840 V. Marx 892 r. Miller 444, 728 V. Minor Co 727 V. Morris 640 V. Phillips 342 V. Pierce 822 r. Post 402 r. Railroad Co 180 V. Ratterman 375 r. Rhodes 495 r. Ruble 182 V. Rutledge 104 V. Savage 643 V. Simonds 735, 768, 769 r. Sims 64 V. Slade 8.)4 V. Smith 68 V. Stem 662 V. Stewart 382 i: Sullivan 332 r. Teeter 778 r. Thompson 200, 263, 275 r. Voorheis 692 r. Weinstein 387 V. Wilson 782, 784 V. Winchell 269 V. Zufall 173 Miller's Case 227 Miller's Ex. v. Sullivan 1^5 Miller & Aldworth' r. Sharp 700 Millican r. Milliran 738, 744 Milliaran r. Lallance, etc., Mfg. Co.' 194 TABLE OF CASES. CI PAGE. Milliken r. Loring 284 V. Marliii 86G r. Pratt 397, 88G V. Skillings G08 V. W. U. Telegraph Co 112 Millington v. Hill 252, 275 Million r. Ohnsorg 451 V. Taylor 745, 750 Mills V. Brown 171 V. Central Railroad ... 135, 713 V. City 721 V. Dunham 375, 477, 479 l: Fowkes 770 V. Fox 919 • v. Hunt 108, 109 r. Larrance 217, 812 V. Mills 436 V. O'Daniel 215 V. Osawatomie 340 V. Scott 232 V. Wyman 199 Millward v. Littlewood. 120, 376, 390 495 Milne's Appeal 770 Milner, Ex parte 378, 380 Milner v. Patton 480 Miltenberger v. Cooke 490 L'. Morrison 470 Milwaukee Assoc, r. Niezerowski . 469 Minah Jlin. Co. r. Briscoe 01 Minard v. Mead 110 Miner v. Belle Isle Co 389 V. Bradley 343 r. Hess 640 V. Hoyt 295 Miners Ditch Co. r. Zellerbach.. 137 140 Mineral Water Bottle Co. v. Booth 473 Mingus V. Dougherty 380 Miniek v. Huff ." 171 Minneapolis Land Co. c. McMil- lan 729 Minneapolis, etc., Ry. Co. v. Co- lumbus Rolling Mills 30 Minnesota Lumber Co. v. White- breast Coal Co 197 Minnesota Oil Co. v. Collier Lead Co 30, 40 Minn. Threshing Co. r. Wolfram. 608 Minnetonka. The 53 Minnock r. Eureka F. & M. Ins. Co 248, 259 Minock r. Shortridge 64 Minor v. Beveridge 408 r. Sharon ." 073 ]\Iinturn i\ Main 109 Minzesheimer v. Doolittle.. 492,508 512 Mirams, Re 440 PAGE. Miskey's Appeal 735, 739 Misner i\ Knapp 405 Misselhorn v. Mutual Assoc 614 Mission Ridge Co. v. Nixon . . 60, 69 Mississippi R. R. Co. v. Southern Assoc 276 Mississippi, etc., S. S. Co. v. Swift. 46 Missouri Pac. Ry. Co. v. Smith. .. 452 Missouri Valley Land Co. r. Bush- nell 141 ]\Iitchel c. Reynolds.... 471, 473, 475 Mitchell r. Abbott 23 v. Allen 175 i\ Colby ; 453 V. Cooley 274 r. Culver 867 V. Doggett 515 r. Gile 346 V. Hawley 837 V. Homfray 770 I". Lancashire and Yorkshire Ry. Co 570 Mitchell V. Lapage 591, 592 r. Mitchell 644 V. Railton 22 r. Raymond 891 i: Reed 390 {'. Rvan 56 r. Taylor 595 r. Tomlinson 585 Mitchell's Claim 777 Mittelholzer r. Fullarton 535 Mittenthal r. Mascagni 446, 508 Mitterwaller v. Supreme Lodge . . 839 Mix V. People 558 Mize V. Barnes 241 Mizell V. Burnett 30, 173, 180 Mizner v. Kussell 081 Mnazek v. Libera 706 Mobile, etc., R. R. Co. r. Dis- mukes 495 Mobile, etc., R. R. Co. v. Owen. . . 816 V. Owen 816 Mobile R. Co. r. Postal Tel. Co. . . 408 469 Mockler v. St. Vincent's Inst 871 Mody V. Gregson 620, 653 Moeile V. Sherwood 850, 861 Moffett r. Parker 285 v. Rochester 606, 641 Mosjul S.S. Co. V. McGregor, Gow & Co 372, 377, 426, 473 Mohlis V. Trauffler 855 ilohr r. Miesen 407 Moley r. Brine 63 ^Nloline Iron Co. r. York Iron Co.. 108 Moline Plow Co. r. Carson 681 Moline Scale Co. v. Beed 349 ]\rolk r. Daviess Covmty Assoc. . . . 405 Moller V. Tuska 708 Cll TABLE OF CASES. PAGE. Mollett V. Robinson 388 Molony v. Kernan 742, 746, 768 Molton V. Camroux 100, 101, 103 Monarch v. Board of School Fund. 337 Monarch Cycle Co. v. Eover Wheel Co 332, 340 Mondel v. Steel 65.5 Mondorf's Will, Re 735 ;Monkman f. Shepherdson 210 Monmelf V. Monelf 49 V. Potts 541 Monongah Coal Co. v. Fleming. . . 180 Monongahela Xav. Co. V. Fenlon. . 448 Monopolies, Case of 472 Monroe r. Barclay 735 Montagu v. Forwood 115 Montague v. Garnett 177 v. Smith 276 V. Weil 47 Montauk Assoc, v. Daly 180, 181 Montclair Academy v. North Jer- sey Ry. Co 437 Montgomery v. American Central In.s. Co 815, 821 V. Crossthwait 856, 860 V. Downey 200 r. Perkins 770 r. Rief 250, 254 V. United States 427 V. Water Works 10 Montgomery R. Co. v. Hurst. 854, 863 Montpelier Seminary v. Smith's Estate 187 Montreal Gas Co. v. Vasey 49 Moody V. Aiken 174 \\ Blake 592, 718 V. Smith 787 Mooers v. Gooderham 608 Moon V. Foster 430 V. Martin 215 Mooney i: Byrne 630, 631 v. Miller 691 Moor V. Salter 846 Moore v. Adams 488 r. Allen 495, 792 V. Appleton 495 r. Bank 294 V. Barr 343 r. Bennett 469 V. Bonnell 508 V. Booker 262, 263 r. Campbell 823 V. Church 508 V. Crawford 786 v. Darton 244 V. Detroit Locomotive Works 204 V. Elmer 200 • V. Granby Mining, etc., Co.. 110 r. Harrison 793 PAGE. Moore r. Hart 180 V. Haviland 704 V. Hegeman 397 V. Hershey 102 V. Hill 565 V. House 276 V. Ivers 85» r. Johnson 81 r. Kerr 174 r. McKenney 214 V. Macon Bank 864 V. Mandlebaum 392 V. Moore 219, 387, 581, 750 774, 798 r. Mountcastle 180 V. Paine 383, 384 V. Parker 673 r. Pierson 39 r. Potter 336 V. Quirk 798 r. Redding 206 V. Ryder 272 r. Stoyall 258, 262 r. Sun Printing Assoc. 108, 534 V. Thompson 180 r. Wade 631 r. Waldron 846 Moore, etc., Co. v. Towers Co. . . . 125 Moore and De la Torre's Case.. 675 707 Moorehouse r. Crangle 169 r. Colyin 50 Moors V. Bigelow 610 Moran v. Commissioners 137 • r. Moran 101 V. Peace 204 . v. Pitt 183 Mordecai r. Boylan 914 r. Dawkins 486 More V. Bennett 425 V. Bonnet 483, 484 Morehead r. Horner 569 - i: Hunt 684 V. Parkersburg Bank 867 V. Wriston 259 f. Comstock 652 Morehouse v. Second Nat. Bank. . 834 Moreland r. Atchison 689 Morgan v. Bain 323 V. Beaumont 405, 501 V. Elam 845 V. Griffith.... 173, 313,533, 921 V. Groff 501 V. :^IalIeson 219 r. Qyerman 250, 267 V. People 604 V. Perhamus 890 V. Randolph-Clowes Co 259 260, 262, 267 TABI>K OF CASKS. cm PAGE. Morgan v. Ravey 10 V. Richardson 40 V. Rowlands 778 V. Skiddy 697, 702, 704 V. Smith 385 V. South Milwaukee Co ... . 202 V. Stell 100 V. Thompson 384 V. Yarborougli 172 Morison c. Thompson 390 Morley r. Loughnan 737, 747 r. Railroad 157 JMoroney v. Roughan 341 Morphett c. Jones 7'Jl Morrell o. Cowan SS9 V. Morrell 914 V. Quarles 23, 205 Morrill v. Aden 82 V. Allen 257, 259 V. Blaekman 679 V. Colehour 174 V. Nightingale 729 c. Palmer 120, 158 V. Tehama Co 40 IMorris v. Creach 878 V. Globe Refming Co 353 i". Hunt 805, 80G V. Keil IGO i: McCoy 63.3 V. Mix 205 V. Morris 685 V. Munroe 214, 578 V. Norton 9, 199, 491 V. State Mut. L. Assur. Co.. 370 V. Stoker 736 V. Talcott 579 V. Vanderen 859 Morris Co. v. Van Vorst 211 Morris Run Coal Co. v. Barclay Coal Co 468 Morrison v. Bennett 500 V. Deadrick 456 V. Garth 857 V. Herrick 791 V. Huggins 869 V. Rogers 464 V. Schlesinger 378 V. Universal Marine Ins. Co. 650 657, 713, 724, 797 V. Welty 861, 869, 870 V. Wilson 88 Morrow v. Bright 286 V. Moore 175, 180, 343 r. Southern Ex. Co 197 V. Turner 779 Morse' v. Bellows 3.^ 17. Ely 68 V. Moore 65,3 V. Royal 769, 770 V. Tappan 157 PAGE. Morse v. Union Stock Yard Co . . . 653 l: Wheeler 69 Mortag r. Linn 873 Mortara i: Hall 78 Mortimer v. Bell 634 (". Capper 753 V. Shortall 638 Mortlock r. Buller 664 i: Williams 839 Morton v. Dean 182 r. Dillon 386 r. Lamb 322 V. Morris 729 r. Rutherford 515 i: Steward 80 Morville r. Amer. Tract Soc 503 Mosbv r. State 855 \: Wall 634 :Moseley r. Bush 279 Moses r. Baglev 451 (\ Clerk \ 261 v. Insurance Co 657 V. Katzenberger 379, 693 r. Loomis 827 V. Railroad Co 54 :\Iosher r. Post 692 ^losier r. Parry 573 ]Mosley r. Stone 14 Mosman r. Bender 257 ^losness v. German-American Ins. Co 448 Moss r. Atkinson 180 V. Averill 144 r. Exchange Bank 408 r. Moss 677, 685 r. Riddle 662 r. Rossie Mining Co 140 V. Smith 522 :\Iostyn V. Mostyn 804, 805 r. West jNIostvn Coal and Iron Co ■ 020, 673 Motes V. People's Assoc 691 Motherway v. Hall 689 Mott V. Harrington 453 Mottram v. Heyer 571 Motz r. Mitchell 731 Mouflet r. Cole 480 Moult V. Halliday 315 Moulton r. Bennett 579 r. Kershaw 19 r. Trask 550 Mound r. Barker 486 Mount c. Van Ness 205 Mount joy v. Metzger 301 Mountstephen r. Lakeman 169 Mowatt V. Londesborough 876 Mowrey r. Railroad Co 135 (•'. Walsh 567 Mowry v. Kirk 810 Moxley v. Moxley 30 CIV TAB)>K OF CASES. PAGE. Moxon V. Payne 746, 7ti9 Moyce v. Newington 717 Moye V. Herndon 859 Moyer v. Cantieny 434 Mozley v. Tinkler 35 Mudd V. Dillon 643 Mudge V. Oliver 591 Mudsill Min. Co. v. Watrous 681 692, 722 Mueller v. Dobschuetz 385 V. Wiebracht 785 Mugan V. Regan 332, 342 Muhlenberg v. Henning 541, 612 Muhlig V. Fiske :: < Muir V. Schenk 281 Muldon V. Whitlock 116 Mulholland v. Bartlett 215 Mulkey r. Long 856, 871, 873 Mullaly V. Greenwood 49 Mullen V. Hawkins 193 V. Keetzleb 388 V. Kerr 402 Muller V. Eno 608, 842 r. Kelly 451 V. Trafford 299 Mulliken v. Millar 679 Mullin V. Bloomer 345 Mulliner v. Midland Ey. Co 138 Mulock V. Mulock 643 Mulvane v. O'Brien 391 Mulvey v. King 663 Mumford v. Gething 478 Mumper v. Kelley 257 Munday v. Whissenhurst 452 Mundy v. Stevens 384, 857 V. Whittemore 728 Munford v. Railroad Co 383 Municipal Building Society v. Kent 447 Munro, Ex parte 806 V. Bowles 56 Munroe v. Perkins 836 V. Philadelphia Warehouse Co 302 Munsey v. Butterfield 338 Munson v. Carter, 733 r. Magtee 389 V. Railroad Co 226 V. Straits of Dover SS. Co. . 446 V. Waskband 79 Murchie v. Cornell 652 Murdoch v. Finney 281 Murdock v. Caldwell 363 V. Lantz 666 Murphin v. Scovell 663 Murphy r. Arkansas Co 295 V. Boese 182 r. Christian Press, etc., Co. 298 V. De France 470 PAGE. Murphy r. De Haahn 789 V. Forget 53a V. Kastner 211 V. Murphy 2i4 r. Rooney 633 r. Sloan 387 V. Webber 785 Murphy's Will, Re 73& Murray v. Aibertson 673 r. Barlee 888 t". Carrothers 112, 120 V. E. India Co 144 V. Emery 261 V. Flavell 234 V. Insurance Co 289 r. Klinzing 865- I. Lardner 291 r. Marshall 264 r. Mayo 364 V. Murray 393, 395 r. Parker 637 r. Peterson 853 V. Pinkett 284 V. Tolman 692 Murrell v. Scott 386 Murry v. Ocheltree 409 Muscatine Co. v. Lumber Co 161 Musick V. Dodson 200 ^lusselman v. Cravens 101 Mussen r. Price 346 Musser v. Johnson 160 Musson r. Fales i95 :\rustard v. Wohlford 63. 66, 68 Muston V. Blake 341 Mutual Assoc, v. Taylor 361 367, 368 Mutual Ins. Co. v. Alvord 448 V. Newton 876 V. Pearson 658 Mutual L. I. Co. V. I'hinney 688 Mutual Reserve Assn. v. Cleve- land Woolen Mills 446 Muzzarelli v. Hulshizer 302 Mycr r. Wegener 443 V. Wheeler 332 Myers v. Davis 286 V. Hazzard 292 r. Jenkins 446, 449 V. League 628 V. Meinrath 496 r. Sari 313, 314 V. Watson 919 Mygatt V. Coe 300 Myles V. Myles 176 Myrick r. Slason ^ . 345 X. Nachtrieb v. The Harmony Settle- ment 747 TABLE OF CASES. cv PAGE. Naden, Ex parte 413 Naff V. Crawford 431 Nance v. Lary 586 Nantes v. Corrock 888 Nash V. Armstrong 826, 830, 836 V. Commonwealth 238, 248 V. Hodgson 776 V. Minnesota Title Co. . 683, 691 V. Towne 108, 334 Nashville Trust Co. v. Smythe. . . 292 Nason v. Cockroft 116 Nassoiy r. Tomlinson... 211, 834, 839 Natchez i\ Minor 854 Nathan v. Dierssen 175 National Bank v. Chicago, etc., R. Co 718 V. Fidelity Co 661 V. Fink 439 V. Grand Lodge 250, 259 V. Hall 30 V. Hancock 456 V. Illinois Lumber Co 720 r. Matthews 403 V. Nickell 872 V. Petrie 499 V. Sprague 470 V. Wheelock 61, 728 r. Whitney 403 Nat. Bank of Augusta v. Cunning- ham 407 National Co. v. Haberman 468 V. Hudson River Co 448 r. Union Hospital Co 426 National Distilling Co. r. Cream City Importing Co 402, 490 Nat. Feather Duster Co. v. Hib- bard 88 National Furnace Co. v. Keystone Mfg. Co 197 National Harrow Co. r. Hench. . . 468 V. Quick 468 National Lead Co. v. S. E. Grote Co 490 Nat. Loan Co. r. Rockland Co. . . . 144 National Machine Co. v. Standard Machinery Co 326 Nat. Mechanics" Banking Assn. r. Conkling 383, 624 Nat. Park Bank v. German- American Co 142 National Provincial Bank of Eng- land, Ex parte 638 National Provincial Bank of Eng- land r. Jackson 588 Nat. Trust Co. i\ Miller 142, 143 National Water Works v. School District 573 National Works v. Oconto W^ater Co 121 PAGE. Naugle r. Yerkes 343 Naumberg v. Young 173, 673 Nave V. Wilson 41)9 Navigation Co. t'. Wilcox o,")0 Neagle v. Kelly 170 Neal V. Boggan 336 V. First Bank 443 V. Read 575 V. Sheffield 813 Neale v. Turton 14 Neally v. Greenough 729 Nealon r. Henry. . 706. 722 Nebecker v. Cutsinger 585 Neblett v. Macfarland . 714 Nebraska Bank r. Nebraska Hy- draulic Co 238, 259 Nebraska Trust Co. v. Ignowski. . 639 Necker v. Koehn 66 Nedby v. Nedby 735 Needles' Exs. v. Needles 459 Needy r. German Ins. Co. . . . 446, 449 Neely r. Jones 841 V. Thompson 839 Neff V. Horner 853 V. Landis 83 Negley r. Hagerstown Co 675 r. JefTers 825 Neidefer r. Chastian 691 Neill V. D. of Devonshire 318 V. Shamburg 683 Neilson, Ex parte 400 Neininger v. State 634, 640 Nelson v. Bank 25 r. Brown 261, 264 r. Evans 451 V. Hanson 338, 342 r. Insurance Co 55 V. McDonald 586 V. Munch 386 v. Pickwick Associated Co.. 204 V. Rogers 265 r. Shelby Mfg. Co 786 V. Stocker 86 V. Von Bonnhorst 52 Nelson's Will, Re 736 Nelson Distilling Co. v. Loe 257 Nelthorp i\ Dorrington 846 Nerac, Est. of 104 Nesbit V. Riverside Dist 137 Nesbitt V. Berridge 758 c. Turner 855, 874 Ness r. Minn. & Col. Co 204 Nester r. Continental Brewing Co. 468 Nettleton r. Billings 623 r. Land Co 386 V. Sikes 173 Nevada Co. v. Farnsworth . . . 10, 12 Neves r. Scott 231 Nevill r. Snelling. . 760, 761, 762, 763 CVl TABLE OK CASES. PAGE. Nevin, Re 4U2 Nevius V. Dunlap 639 New V. Wambach 039 New Bedford Copper Co. i;. South- ard 629 New Brunswick, etc., Co. v. Conv- beare 695, 702 New Brunswick, etc., Co. r. jNIug- geridge 675 New Buffalo v. Iron Co 135 New England, The 53 New England Co. v. Rockport Co. 10 New England, etc., Co. r. Union, etc., Co 147 New England Iron Co. v. Railroad Co 595 New England Trust Co. r. Abbott. 52 753 New Haven r. Railroad 277, 437 New Haven Trust Co. v. Nelson . . 720 New Home Co. i". Simon 662 New Jersey Steam Nav. Co. r. Bank 54 New Jersey Works v. Ackerman. . 446 New Orleans St. Joseph's Assoc. V. Magnier . . . .^ 255, 277 New Sombrero Phosphate Co. r. Erlanger 389, 676 New York Bank Note Co. v. Ham- ilton, etc., Co 298 New York Bg. Co. v. Fisher 82 N. Y. & C. Ssteamship Co. v. Har- bison 120, 122 New Y^ork Co. v. Schuyler 282 N. Y'. Guaranty, etc., Co. v. Mem- phis Water Co 279 New York, etc., Ins. Co. r. Mc- Master 584 New Y'ork L. I. Co. v. Aitkin 261 V. Hamlin 259 New York Life Ins. Co. v. Sta- tham 429 New York, etc., R. Co. v. McHenry. 877 New York Rock Co. r. Brown .... 469 New Zealand Banking Corpora- tion, Ex parte 288 New Zealand Land Co. v. Watson. 109 Newark v. Stout 661 Newbegin v. Newton Bank 598 Newbigging r. Adam 681, 712 Newberry r. Creedon 11 r. Ruffin 335 Newberry Land Co. r. Newberry. 250 277 Newburgh r. Newburgh 914 Newby r. Rogers 180 Newcastle Mfg. Co. v. Railroad Co 109 Newcomb r. Brooks 387 PAGE. Newcomb v. De Roos 886 V. Ramer 173 Newcombe v. Leavitt 781 Newcome r. Ewing 696 Newell V. Cochran 174 r. Higgins 37 8 V. Mayberry 848, 858 r. New Holstein Canning Co. 539 r. Radford 179 V. Randall 681 Newhall v. Vargas 571 Newington v. Levy 814, 833 Newlin v. Hoyt 181 Newman r. Freitas 444 r. Kimbrough 397 r. King 871 r. Morris 892 V. Schwerin 722 r. Streator 22 r. Sylvester 120 Newport News Co. v. McDonald Brick Co.'s Assignee 525 Newry and Enniskillen Ry. Co. r. Coombe 67, 73 Newsom i\ Buflferlow 634 Newton v. Bronson 174 r. Carson 213 r. Chicago, etc., Ry. Co 210 r. Newton 285, 395, 467 r. Tolles 600 r. Wooley 632 Niagara Ins. Co. v. Miller 659 Nibert r. Baghurst 791 Niblo V. Binsse 538 Nical V. Fitch 528 Nichol r. Godts 310 r. Lytle 175 V. Steger 77 r. Thomas 101, 102 Nicholls r. Granger 46 r. MoShane 708 Nichols V. Haywood 846 r. Hooper 285 V. Johnson 179, 180, 852 853, 859 r. Marsland 536 I'. Mudgett 438 V. Palmer 415 r. Pinner 679 r. Poulson 515, 802 V. Raynbred 202 r. Rogers 725 V. Rosenfeld 854 V. Ruggles 376 r. Scranton, etc., Co 361 362, 550 r. Weaver 178 Nichols, etc., Co. v. Snyder 68 Nicholson v. Bradfield Union 164 TABLE OF CASES. evil PACE. Nicholson v. Combs 863 V. Wilborn 78 Nickalls v. Merry 316 Nickels v. Kane's Adm 451 Nickelson r. Wilson 441 Nickerson r. Bridgeport Hydrau- lic Co ". 254 V. Mass. Title Ins. Co 683 V. Railroad Co 573 V. Russell 544 V. Swett 853, 857 Niekoll V. Ashton 369, 538 Nicol V. Fitch 337 r. Nicol 417 Nicoll V. Burke 108 Nicolls ads. Rogers 780 Niedermever v. Curators 22 Niell V. Morley 100 Niemeyer v. Wright 402 Nilson V. Morse 366 Nims V. Ford 248, 252 V. Mt. Hermon School 130 Nineveh, The 880 Nisbett v. Galbraith 25 Nix V. Wiswell 259 Nixon V. Halley 88 Noakes & Co. v. Rice 630 Noble V. Bushwell 608 V. Harris 878 r. Moses 735 V. Thompson Oil Co 285 r. Ward 311, 794, 799, 823 Noel r. Drake 376, 439 V. Kinney 88, 893 Noice V. Brown 120, 444, 515 Nolan V. Bank of New York 821 Noland v. Bull 52 Nolin I). Blackwell 776 Noll V. Smith 865 Norcross i\ James 301, 304 Norcum v. Shehan 63 Nordenfelt v. Maxim-Nordenfelt. etc., Co 467, 476, 479, 480 Nordyke v. Kehlor 582, 612 Norfleet v. Cromwell 299, 300 Norfolk Hosiery Co. v. Arnold... 721 Norfolk Ry. v. McNamara 877 Norman r. Norman 397 V. Wells 299 Norrington v. Wright 321, 330 331, 629 Norris v. Blethen 579 v. Doniphan 430 17. Harris 332 r. Vance 82 V. Wait 83 North r. Henneberry. . . 845, 851, 860 ■ V. IMallory 337, 550 V. Mendel 182 PAGE. North V. Mudge 876 V. Percival 44, 47 r. Robinson 170 North Ala. Development Co. v. Short 256, 268 North Bank v. Brown 877 North British Insurance Co. r. Lloyd 660, 661 North Chicago R. R. Co. v. Ack- ley 451 North River Co. v. Shrewsbury Church '. 874 Northampton, Marquess of r. Pol- lock 630 Northampton, etc., Ins. Co. v. Tuttle 39 Northeastern Ry. Co. v. Hastings. 310 Northern v. State 173 Northern Bank v. Hoopes 12 Northern, etc., R. R. v. Eslow. . . 187 Northern Ry. v. Commonwealth.. 131 Northern Trust Co. v. Snyder 299 Northfield r. Plymouth 158 Northington, Ex parte 99 Northrop r. Mercantile Trust Co. 363 Northrup v. BufRngton 499 r. Graves 579 V. Phillips 500 Northumberland Avenue Hotel Co., Re... 121 Northwestern Bank v. Great Falls Opera House 210, 816 N. W. Iron Co. v. Meade 43 Norton v. Blinn 498 r. Marden 580 V. Nichols 88 r. Norton 505 V. Relly 747 r. Tuttle 456 Norwich, Chandlers of, Re 471 Norwich, Mayor of v. Norfolk Ry. Co 139, 374, 515 Norwich Bank V. Hyde 867 Norwich Lock Mfg. Co. v. Hocka- day 135 Norwood V. De Hart 265 r. Lathrop 345 V. Read 224 Note Holders t'. Funding Board. . 859 866 Nothe V. Nomer 343 Nottidge V. Prince 746 Nottingham Brick Co. v. Butler.. 305 671 Nounnan v. Sutter County Co. . . . 691 Nourse, Re 466 V. Henshaw 892 Nouvion V. Freeman 877 Nowack V. Berger 231, 792 CVlll TABLE OF CASES. PAGE. Nowlin V. Pvne 35, 577 Noyes v. Landon 387, 391 V. Loiing 119 V. Marsh 376 V. Pugin 337 Nugent c. Delhomme 864 V. Smith 536 r. Supervisors 135 V. Wolfe 171 Nunez v. Dautel 52 Nunn V. Fabian 790 Nunn ;;. Givhan 889 Nunnery v. Cotton 859, 866 Nute V. Insurance Co 445, 446 Nutt V. Easton 769 V. Humphreys 112 Nuttall V. Bracewell 304 Nutter V. Stover 292 Nye V. Hoyle 301 V. Storer 725 Nyulasy v. Rowan 3, 27 0. O. & C. R. R. Co. V. Potter 215 Oak V. Dustin 729 Oakdale Mfg. Co. v. Garst 469 Oakden r. Pike 628 Oakeley v. Pasheller 384, 385 , Oakes v. Cattaraugus Co 226 I r. Turquand 562, 602 70'6, 719, 723 Oakland Ins. Co. v. Bank of Com- ;nerce 271 Oakley v. Port of Portsmouth and Ryde Steam Packet Co 535 V. Shellev 103, 630 Oaks V. Weller 22 Oaten v. Stanley 340 Oates V. Lilly 776 O'Bear ?;. First Bank 780 Obert V. Landa 729, 748 O'Brien v. Boland 28, 753 V. Brietenbach 488 r. Hilburn 88 V. Miller 573 V. Young 157 O'Bryan v. Fitzpatrick 499 V. Kinney 54 Occum V. Sprague Mfg. Co 141 Ocean City Assoc, v. Headley. . . . 306 Ockendon v. Barnes 725 Ockerson v. Crittenden 502 O'Connell v. Hotel Co 550 O'Conner r. Hurley 12 V. O'Conner 258 r. Ward 505 ODea V. Winona 51 Odell r. Buck 104 ^— V, Montross 630 PAGE^ Odessa Tramways Co. r. Mendel . . 483 Odlin V. Insurance Co 428 O'Donald r. Constant 708 O'Donnell r. Clinton. . . 5, 32, 312 583 V. Leeman 182 O'Donnell Brewing Co. v. Farrar. 092 Oelricks v. Ford 109 Ofenstein v. Bryan. . 443, 856, 866, 872 Ofl'ord V. Davies 34 Ogden V. Maxwell 731 V. Ogden 172 V. Raymond 120 Ogilvie i\ Insurance Co 709 Ogilvie V. Jeaffreson 588 Ogle, Ex parte 566 Ogle V. Vane 824 Oglesby v. Williams 179 Oglesby v. Yglesias Ill Oglesby Coal Co. v. Pasco 88 O'Hara r. Carpenter 434 Ohio V. Board of Education 482 V. Standard Oil Co 125 Ohio, etc., College v. Love's Ex.. 187 Ohio Ins. Co. v. Merchants' Ins. Co 404 Old Colony Trust Co. v. Dubuque Light Co 690 Old Saucelito Co. v. Commercial Ass. Co 448 Oldershaw v. King 213 r. Knowles 408 Oldfield's Case 875 Oldham v. Mt. Sterling Imp. Co. 226 Oliphant r. Markham 480 Oliver Ex parte 379 Oliver v. Bank of England. .. 119, 654 Oliver r. Bragg 841 V. Gilmore 468 V. Goetz 342 r. Hunting 182 r. Insurance Co 576 r. McClellan 83 r. Morawetz 119 Olley r. Fisher 638 Ollive V. Booker 655 Olmstead v. Brush 252 V. Latimer 20G Olsen V. Hunter-Benn 655 Olson V. Lamb 453, 470 r. Lovell 668 t'. Orton 695 Oltman r. Moak 69 Omaha Bank r. Kraus 28 r. Simerall 775 O'Malley v. Twenty- five Associates. 673 Omerod r. Hardman 311 O'Neal. ISIatter of 462 r. Kellv 38-2 V. Phillips 616 TABLE OF CASES. CIX PAGE. O'Neal V. Seixas 568 Oneale v. Long 8li2 Oneida Bank v. Ontario Bank. . . . 503 O'Neil V. Railroad Co 782 O'Neill V. Capelle 631 l: Clark 272. 879 V. Supreme Council... 361, 363 Onondaga Bank r. United States. 575 Ontario Fruit A.ssoc. v. Cutting Packing Co 539 Ontario Lantern Co. v. Hamilton Mfg. Co 360 Onward Building Society v. Smith- son 300, 586, 589 Opera House Co. v. M. B. & L. Assoc 142 Oppenheimer v. Collins 444 Opper V. Hirscli 251 Optenburg v. Skelton 608 Orchardson v. Cofield 747 Orcutt V. Butler 879 V. Nelson 591 Ordway v. Do\\Tiey 262 O'Regan ;;. Cunard S. S. Co 63 55, 508 Oregon Pac. R. Co. v. Forrest. . . . 728 Oregon Ry. Co. v. Oregonian R. Co 143 Oregon S. N. Co. v. Winsor 483 Organ ;;. Allison 861, 874 Orient Ins. Co. v. Daggs 125 Oriental Financial Corporation v. Overend, Gurney & Co 384 Orland v. Finnell*. 176 Orlando r. Gooding 853 Orman i\ North Alabama Co ... . 260 271 Ormerod r. Dearman 441 Ormes v. Beadel 709, 748 Ormes v. Daucliy 375, 507 Ormsbee r. Howe 292 Ormsby v. Rhoades 68 Orne v. Friedenberg 306 O'Rorke v. Bolingbroke. . . . 759, 760 764 0"Rourke i\ John Hancock Ins. Co 66, 68, 74, 83 i V. Wahl 292 I Orr v. Equitable Mortgage Co. . . 101 V. Goodloe 689 I V. Lacey 142 j Orrick v. Colston 861, 867 Ort V. Fowler 585 Ortman r. Weaver 29, 30 Orton V. Scofield 388 Osborn v. Andrees 854 V. Bank 161 V. Farr 63 V. Hall 854 PAGE. Osborn v. Low 383 V. McClelland 294 v. Nicholson 420, 421, 510 525, 531. 539 V. Phelps 633, 634 r. Bobbins 729, 730 Osborne r. Bradley 301 v. Cabell 263, 265, 272 V. Francis 51 r. Hender.son 244 V. Kerr 112 V. O'Reilly 204 V. Rogers 12 V. Williams 439, 505 Oseanyan r. Arms Co 377. 436 507, 508 Osgood I'. Bander 482 V. Franklin 753 V. Lewis 653 V. Miller 383 V. Stevenson 852 O'Shea v. Collier, etc., Co 378 Osier i;. Hobbs 11 Oskamp v. Southern Express Co. 592 Osnient v. McElrath 176 Ostrander v. Scott 211, 214, 839 O'Sullivan r. Overton 179 r. Thomas 501 Oswald V. Godbold . . 346 r. McGehee 694 r. Mayor of Berwick-on- Tweed 382 Oswego V. Kellogg 850 Oswego Starch F'actory v. Len- drum 679, 716 Otis V. Adams 332 V. Cullum 654 V. Browning 856 V. Gardner 294 i\ Pa\Tie 39 Ott r. Garland 788 Otto v. Haeff 854, 869 Outen V. Rodes 438 Outoun V. Dulin 854 Overseers v. Sear 127 Overton v. Banister 85 r. Matthews 866, 867 Owen V. Davies 100 V. Davis 499 V. Evans 285 V. Hall 869 r. Homan 519, 683 r. Thomas 180 Owens V. Dickenson 888 r. Lewis 783, 784 V. Mynatt 729 V. Sturges 607 Owing's Case 252 Owiners v. Owings 249 ex TABLE OF CASES. PAGE. Oxford V. Rodney 260 Oxford (Mayor of) v. Crow 165 Oxford Iron Co. v. Spradlev 144 486 Ozark Lumber Co. v. Chicago Lumber Co 336 Ozley V. Ikelheimer 891 P. Pabst Brewing Co. v. Listen. 501, 502 Pace V. Bartles 031 Pace V. Pace's Adm 386 Pacific Co. v. Adler 468 r. Anglin 698 Pacific Express Co. v. Shearer... 592 I'acific Guano Co. v. Mullen... 402 483, 608 Pacific Polling Mill Co v. Eail- way Co 44 Packer v. Benton 169 V. Hinckley Locomotive Works 100 Packet Co. v. Sickles 177 Padden v. Taylor 716 Paddock v. Robinson 120, 444 495, 517 Padfield v. Padfield 395 Paducah Lumber Co. v. Paducah Water Supply Co 247, 249, 254 Page V. Becker 257, 261 ■ — • — V. Cook 52 r. Cowasjee Eduljee 335 r. Cox 234 V. Higgins 599, 600 r. Horn 735 V. Krekey 382 V. Morse 63 V. Norfolk 47 i. Parker 690 Paget V. Marshall 601 Paice V. Walker 108, 111 Paige V. Chapman 292 : v. Fullerton Woolen Co 48 V. Hieronymus 441 r. Slierman 610 V. Stone 116 Paine r. Drew 780 V. Harrison 708 V. Insurance Co 42 r. .Jones 264, 382 c. Loeb 123 V. Pacific Ins. Co 612 r. Paine 880 r. Schenectady Ins. Co 877 r. Strand Union 164 r. Upton 610 Painter r. Polk County 579 Pakenham's Case 300 PAGE. Palfrey v. Portland, etc.. R. R. Co 215 Palliser v. Gurnev 890 Palm r. Ohio, etc', R. Co 352 Palmer v. Andrews 677 V. Bell 693 V. Blaine 170 r. Bosley 830 V. Breen 332 r. Courtney 654 V. Harris 419 V. Hartford Ins. Co 29 v. .Johnson 666, 673 r. Largent 864 r. Locke 466 r. Lorillard 428 r. Marston 420 V. Meriden Britannia Co... 327 r. Xeave 395 V. Palmer 444 V. Stebbins 481 Palmer Bank v. Insurance Co... 241 248 I'almeter v. Carey 262 Palo Alto, The 31, 32, 42 Palo Pinto County v. Gano 595 Palyart v. Leckie 503 Pana v. Bowler 137 Panama and S. Pacific Telegraph Co. r. India Rubber Co 342, 392 Pancake r. Caufifman 631 Pangborn v. Saxton 258 v. Westlake 402, 404 Panmure, Ex parte 119 Panton v. Duluth Water Co 731 Pape V. Wright 493 Paquin r. Milliken 708 Paradine V. Jane 530, 532, 533 Pardee r. Kanadv 323, 355 V. Piatt . .' 283 V. Treat 266 Pardey r. American Windlass Co. 79 Parfitt V. Lawless 736 Parham v. Randolph 696 Paris 1-. Strong 178 Paris Skating Rink Co., Re 456 Parish v. Wheeler 141, 142 Park V. Glover 859, 873 V. Johnson 635 t'. National Assoc 469 r. Whitney 30 Parke Co. r. White River Lumber Co 850, 870 Parker v. Butcher 761 V. Cowan 200 V. Donaldson 108, 114 r. Dorsev 880 • V. G. W.' Ry. Co 731 r. Jeffery 54, 25G TABLE OF CASES. CXI PAGE. Parker i\ Kane 850 V. Lambert 89 V. Lancaster 729 V. McKenna 390, 725 V. Macomber 548 V. Marks 890 V. ]\Ioore 409 V. Nightingale 301 V. Oakley 63 V. Otis 408 V. Pettit 301 V. Scott 528 r. S. E. Ry. Co 54 V. Tainter 787 V. Thomas 688, 695 Parker's Adm. v. Parker's Adm. . 738 Parker's Case 54 Parker Vein Coal Co. r. O'Hern. 549 Parkersburg v. Brown 142, 503 Parkes v. Smith 878 V. White 888 Parkhurst r. Hosforu 750 Parkin r. Thorold 627, 628, 630 Parkinson v. City of Parker 100 V. Sherman 261, 275 Parks V. Barrowman 88 V. Francis 177, 789 v. Hazelrigg 182 V. Ross 112 Parmalee v. Thompson 204, 206 Parmelee v. Cameron 749, 757 Parmlee r. Adolph 692 Parmly r. Buckley 284 Parr v. Greenbush 877 Parry r. Liverpool Malt Co 447 V. Nicholson 864 Parry Mfg. Co. v. Tobin 608 Parsell v. Stryker 467 Parsons v. Alexander 912 V. Clark 778 V. Ely 459 V. Keys 77, 80 V. Parsons 444 V. Sexton 342 V. Tacoma Co 389 V. Trask 481 Partington t'. Atty.-Gen 90 Partredge v. Hood 442 V. Messer 378 V. Strange 458 Pass r. Grenada County 579 Pasteur Vaccine Co. v. Burkey.. 490 Patek V. Waples 311 Paterson ;■. Higgins 853 Patman r. Harland 301 Patmore v. Colburn 816 Patrick r. Bowman 31, 32, 122 V. Littell 891 V. Milner 628 PAGE. Patrick v. Putnam 548 Patten v. Hicks 177 Patterson v. Ackerson 531 V. Boehm 378 r. Clark 502 V. Donner 445 V. Fagan 873 V. Gibson 729 r. Lawrence 88 V. National Premium Ins. Co 376 Patterson |-. Neuer 778, 779 V. Patterson 335 V. Rabb 285 r. Robinson 161 r. Wright 689 V. Yeaton 849 Patterson's Appeal 500 Pattle V. Hornibrook 312 Patton V. Adkins 261 V. Allison 734 t\ Mills 171 V. Taft 377 V. Thompson 387 V. Wilson 285 Patton's Ex. v. Hassinger 22 Pattridge v. Gildermeister 342 Patty V. City Bank 500 Paul r. Kunz 88 r. Leeper 873 V. Meservey 816 V. Smith 79 r. Virginia 125 Pauling V. L. & N. W. Ry. Co 163 Pawle"s Case 711 Paxton r. Rich 775 V. Smith 573 Payler v. Homersham 815 Payne v. Cave 15 r. Eden 380 V. Long . . .^ 856, 800 r. Pomeroy 334, 354 t'. Pusey 776 V. Thomason 893 Payne's Appeal 11, 120 Payne's Case 686 Payson v. Burnham 30 1 Peabody v. Flint 125 V. Peabody 844 V. Rice 879 t\ Speyers 180 Peacock v. Evans 749,. 756 V. Monk 887 V. Penson 920 V. State 558 r. Williams 259 Peake r. La Baw 892 Pearce v. Brooks. . . 485, 486, 487, 488 V. Gardner 182 CXll TABLE OF CASES. PAGE. Pearce v. Langfit 41 V. Railroad Co 136, 142 V. Smith 108 V. Spalding 19 V. Watts 48 r. Wilson 442, 483 V. McDowell 99 Pears v. Laing 779 Pearsoll v. Chapin 61 Pearson r. Bailey 277 V. Thompson 211 Pease v. Gloahec 717 V. Pease HO V. Smith 565 Peaslee v. Robbins 103 Pechell V. Watson 450 Peck V. Brighton 629 r. Conway 301 V. Henrich 451 v. Ledwidge 531 V. List 684 V. Ptequa 204 Peck Colorado Co. v. Stratton . . 9, 343 Pccke V. Redman 202 Pecot r. Armelian 174 Peddicord v. Hill 813 r. Gurney 681, 683, 704 r. Peek 395, .505, 791, 792 Peel V. Peel 242, 243 V. Shepherd 115 I'eeler v. Levy 666 Peelman v. Peelman 210 Peerless Glass Co. r. Pacific Crockery Co 605 Peeters v. Opie 626 Peevey r. Haughton 181 Pegram r. Railroad Co 387 Peirce f . Corf 182 Pellcat V. Angell 432, 433 Pelletier v. Couture 63 Pellman v. Hart 284, 285 Pelton f. Prescott 856 V. San Jacinto Co 871 Pelton Bros. v. Harrison 96 Peltz V. Eichele 483 Pemberton v. Hoosier 204 Pence v. Arbuckle 586 V. Langdon 722 Pender r. Lushington 897 Pendery v. Allen 262 Pendleton v. Asbury 470 Pendleton County v. Amy 147 Penn v. Bnrnman 390 1-. Whitehead 63, 892 Penn Ins. Co. r. Crane 697 v. Mech.inics' Bank 657 Penn Plate Glass Co. v. Spring Garden Ins. Co 449 Pennegar v. State 397 PASE, Penniman v. Hartshorn 180 Pennington v. Howland 51 Pennington (Doe d.) v. Taniere. 166 Pennoek's Appeal 684 Pennsylvania Co. v. Dolan 176 V. Lombardo 452 V. Railroad 143 V. Wentz 53, 399, 482 Penrose v. Curren 84 Pentz v. Stanton 110 People V. Aldridge 349 r. Bartlett 557, .558 r. Call 862 r. Chicago Gas Co 468 r. Fallon 405 V. Foster 581 V. Fromme 798 V. Gates 798 V. Insurance Co 534, 548 V. Kneeland 857, 858, 871 V. Manning 557 r. Mercein 418 V. Milk Exch 425 V. Xorth River Sugar Rfg. Co 463 r. 0. B. of S. B. B. Co. 387, 743 r. Organ 855 V. Peckens 692 r. Pullman Palace Car Co. 140 V. Railroad Co 131 , V. San Francisco 688 V. Sheldon 425 r. Speir 12 r. Stephens 470, 709 r. Tompkins 382 r. Tubbs 557 V. Tvroler 53 V. Vilas 383 r. White Lead Works 130 People's Bank r. Alabama R. Co. 402 People's Bank v. Collins 275 People's Savings Bank r. Gifford. 407 Peoria Savings Co. r. Elder 876 Pepper Telegraph Co 604 Pereival r. Dunn 280 Perdew v. Tillma 834 Pereau r. Frederick 851, 867 Perin r. Parker 408 Perkins, Re 815 Perkins v. Clay 177, 193, 789 r. Eaton 501 r. Frazer 361 r. Gilman 833 i\ Guv 781 V. Hadley 839 V. Hadsell 22, 35 r. Hinsdale 170 r. Hyde 502 TABLE OF CASKS. CXIU PAGE. Perkins c. Lane 48;> V. Littlefield 170 V. Lougee 680 i-. Eogers . . .' 427, 430 V. Savage 401; i. Scott 7.'0 Perkins Windmill Co. v. Till- man 853, 85G Perley v. Balch 608 Perls V. Saalfeld 477 Perrett's Case 602 Perrin r. Wilson 77 Perrine v. Dunn 461 Perry v. Barnett 499 V. Dicken 451 V. Mt. Hope Iron Co.. 40, 41 605, 886 V. Tuscaloosa Co 302 Person r. Stoll 337 Persse v. Persse 400 Peruvian Rys. Co., Re 145 Peter v. Compton 177 Peters i'. Davenport 438 V. Fleming 76 V. Grim 501 V. Railroad Co 791, 7.32 r. Westborough 177 Peters Co. v. Lesli 718 Peterson r. Breitag 215 V. Laik 63 V. Mayor 161 17. Seagraves 802 Peteseh f. Hambach 634 Petillon V. Hippie 501 Petit V. Woodlief 839 Petrie i'. Torrent 174 Pettee v. Peppard 260 Pettigrew r. Chellis 681 Pettit V. Braden 170 Pettifs Adm. v. Pettit's Dis- tributees 483 Petty V. Petty 395 I". Trustees 187 Peugh V. Davis 630, 631 Pevif V. Lauglilin 853 Peyin t'.Societe St. Jean Baptiste. 449 Peyto's Case 829 Pfaff V. Golden 299 Pfeuffer i: Maltby 500 Pflugar V. Pultz 467 Phalen v. Clark 499 Pharmaceutical Soc. v. London & Provincial Supply Assoc 131 Plielan r. Moss . . . ! 292, 865 Phelps r. Borland 384 ' V. Dennett 199 r. Dolan 879 r. Holderness 407 V. Johnson 813 viii PAGE. Phelps V. Lyie 230 V. Mayor 579 ■ r. Samson 717 ■ V. Seely 822, 827 V. Stone 170 V. Sullivan 855 r. Walther 91 r. Worcester 79 v. Zuschlag 730 Phenix Bessemer Steel Co., Re.. 323 Phenix Ins. Co. v. Raddin 658 Phenix Iron Foundry r. Lockwood. 271 Phettiplace v. Railway Co 17 Phibbs V. Buckman 693 Phillip (;. Gallant 572 Pliillips r. Alhambra Palace Co. 544 r. Bistolli 509, 622 r. Blatchford 296 r. Caldcleugh 611, 663, 665 V. Clagett 626 V. Columbus Assoc 809 r. Foxall 385 r. Gifford 406 V. Graves 891 c. Hatch 427 r. Henry 74S r. Herndon 345 V. Homfray 670 V. Hull Alhambra Palace Co 223 r. Lloyd 79 V. McConica 581 v. Mevers 415, 444 r. Miller 66S i\ ^loor 45 V. Mullings 737 v. O'Neal 616 r. Phillips 567, 568 r. Probyn 413 V. Pullen 749 r. South Park Ins. Co 451 V. Thorp 444 Phillips's Est 28] Pliillips Co. c. Seymour 332, 342 Phillpotts V. Evaua 338, 353 3.59, 369 Philpot V. Gruninger 9 Philpott V. Elliott 634 V. Jones 807 Phippen v. Stickney 470 Phipps l\ Jones 42 V. Lovegrove 283, 286 rh«nix Assur. Co. v. Davenport. . 125 Phoenix Bridge Co. V. United States 52-^ Phoenix, etc., Co.. Tn re 340, 354 Phoenix Co. v. McEvony 717 Phosnix Insurance Co. v. Con- tinental Insurance Co 302 CXIV TABLE OF CASES. PACK. Phoenix Insurance Co. v. McKer- nan 852, 854 Phoenix Insurance Co. r. Trenton Water Co 249, 251, 254 Phoenix Insurance Co. r. Zlotky. 449 Pliosphate of Lime Co. r. Green. . 901 Piatt V. Hubbell 175 V. Lon{i:\vorth"s Devisees.... 387 Picard v. Hine 888, 890 r. McCormick G92 V. Sears G49 Picker v. London and County Banking Co 294 Pickering v. Ilfracombe Rv. Co.. 2S.5 483 V. Pickering 878 f. Stephenson 896 Pickering's Claim 110 Pickett c. Gore 1 1 V. Leonard 778 V. Wadlow 631 Pickle Marble Co. v. McClay. 249, 254 Pickslay r. Starr 914 Picot V. Sanderson 844 Pidcock r. Bishop 661 Pieratt V. Young 683 Pierce V. Chace 88 r. Goklsberrv 206 r. Parker .". 814 r. Pavne 177 r. Pierce 483, 484, 735 r. Robinson 630, 631 V. Seymour 774 V. Tennessee, etc., R. R. Co. 360 363 V. Walton 199 V. Wilson 709 Piercy v. Young 447 Piercy's Heirs v. Piercy's Exs. . . . 844 861 Pieronnet v. Lull 408 Pierrepont V. Barnard 784 Pierson r. ^lorch 23 r. Spaulding 346 Pietsch V. Krause 676 Piggott V. Stratton 791, 919 Pigot's Case. . . 482, 845, 846, 850, 859 Pigott v. Thompson 232, 241 Pike V. Colvin 566 V. Fitzgibbon 893 V. Ongley Ill Pike Electric Co. v. Richardson Drug Co 538 Pilcher v. Rawlins 567 Pilie V. New Orleans 23, 205 Pilkington v. Scott 481 Pillans r. Van Mierop 198 Pince V. Beattie 452 Pinch V. Willard 631 PAGE. Pinchon's Case 154, 224 Pinckney v. Dambmann 361 Pinger v. Pinger 335 Pingry v. Washburn 437 Pinkett v. Wright 284 Pinkham v. Libbey 536 Pinkston r. Brown 505 Pinnel"s Case 211 Pinney v. Hall 388 Pintard v. Martin 709 Pioneer Mfg. Co. v. Phoenix Ass. Co 44S Pioneer Savings Co. r. Nonne- macher 821 Piper V. Fosher 177, 789 r. Hoard 231 Pipes f. Buckner 175 Pipp r. Reynolds 259 Pippen r. Insurance Co 67 v. Wesson 892 Pironi v. Corrigan 335, 740. 746 Pisini V. A.-G. for Gibraltar 741 Pistel r. Imperial Ins. Co 52 Pitcher r. Hennessey 577 r. Wilson . . .\ 178 Pitkin v. Xoves 215 Pitt r. Gcntie 187 Pittam V. Foster 90 Pittman r. Pittman 361 Pittsburgh B. S. Rail Co. v. Hinckley 550 Pittsburg 'Carbon Co. v. McMillin. 498 P. C. C. & St. L. Rv. Co. V. Vol- kert ! 451 Pitt.sburgh Iron Co v. Lake Su- perior Iron Co 175 Pittsburg Mining Co. r. Spooner. 676 Pittsfield Cottonwear Co. v. Pitts- field Shoe Co 254 Pixley V. Boynton 409 Place r. Hayward 505, 736, 741 Planche r. Colburn 337 Plank r. Jackson 486, 487 Piano Mfg. Co. v. Burrows 271 Plant V. Bourne 179 r. Condit 60S r. Gunn 441 r. Gunton 729 Plant Seed Co. r. Hall 43 Planter's Bank v. Union Bank. . . 498 Plating Co. v. Farquharson 460 Piatt V. Brand 361 r. Bromage 579 Piatt r. Broderick 51 V. Railroad Co 533 Plavford r. United Kingdom Elec- tric Telegraph Co 233 Pledge V. Buss 386, 660, 661 Plevins (/. Downing 823 TABLE OF CASES. CXV PAGE. Plews r. Baker 446 Plimpton r. Curtiss 176 Plumb V. Campbell 34, 35, 406 Plumer r. Lord 892 r. Smith 487 Plummer r. Bucknam 786 r. People 729 Plunkett r. Davis Co 382 V. Hanseka 798 Plyler r. Elliott 870 Plympton v. Dumi 709, 723 Poche V. New Orleans Co 343 Poeock i: Lafayette Bldg. Assoc. 142 Poe V. Dixon .' 269, 271 Poillon V. Martin 741, 768 i\ Poillon 415 Poindexter p. Davis 409 Poirier v. Gravel 361 Poland r. Brownell 692 Poland Paper Co. v. Foote 204 Polhemus r. Heiman 608 Polhill r. Walter 684 Police Jury v. Britton 146, 147 Pollard, Ex parte 323, 355 V. Reardon 303 V. Scears 776 V. Vinton 302 Pollman Coal Co. r. St. Louis... 211 839 Pollock V. Agner 501 r. Cohen 121 v. Smith 721 r. Sullivan 120, 495 Poison V. Stewart 444 Pomerov r-. Slade 204 Pond r." Smith 430 Ponder r. Jerome Hill Cotton Co. 407 Ponsford r. Johnson 397 Pool V. Boston 205 r. Gott 462 Horner 200 Pratt 65, 80 . Hintrager 257 Kelsev 841 r. Mass.' Plush Co 310 Pope V. Allis 653 r. Branch County Bank... 867 r. Chafee ' 853 V. Garrard 531 V. Hanke 407, 508, 512 V. Hartwig 291 V. Hooper 640 i\ MeadoAV Spring Distilling Co 110 . r. Porter 275, 331 Pope Iron Co. r. Best 52 Popham V. Brooke 742 Poplett V. Stockdale 376 Popplein V. Foley 634 Poidage r. Cole' 322 Porell V. Cavanaugh 716 PAGE. Porritt i: Baker 910 Port r. Russell 389 Port Huron Co. V. Sherman 853 Port of London Co.'s Case 899 Porter v. American Legion. 301, 303 v. Arrowhead Reservoir Co. 342 352 r. Blood 778 r. Chicago, etc., Ry. Co.... 841 r. Cook ; 839 r. Day 405 r. Doby 861 r. Dunn 337 V. Fletcher 695 V. Hardy 585, 867 r. Hill' 175 V. Hodenpuyl 384 V. Jackson 252 r. Merrill 108 r. Perkins 175 r. Railroad Co 160 r. Scott 879 r. Sherman County Banking Co .' 498 r. Woodruff 388, 389 V. Woods 257 Porter's Case 494 Porterfield r. Butler 200 Portland Trust Co. r. Nunn 265 Portner v. Kirschner 44 1 Posey r. Bank 25 Poska r. Stearns 697, 699 Po.sner v. Seder 337 Po.st r. Dart 275 r. Davis 47 r. Losey 861 V. Mason 734 Postal Tel. Co. v. Schaefer 604 Po.stelle r. Rivers 486 Post on r. Balch . . .' 505 Potomac Coal Co. r. Railroad Co. 731 Potter V. Adams 849 r. Ajax Mining Co 452 V. Carpenter 11 V. Douglass 839 r. Fidelity Co 395, 739 r. Jacobs 791 r. Potter 640 V. Sanders 884 r. Stransky 775 V. Taggart 343, 710 Potts V. Bell 427 V. First Nat. Bank 256 r. Polk Co 215 ■ V. Rose Valley Mills 548 r. Whitehead"^ 29, 39, 43 Poulton r. Lattimore 342 Pound r. Williams 607 Pounds r. Chatham 245 Poussard v. Spiers and Pond.... 545 Powder River Co. r. Lamb 176 CXVl TABLE OF CASES. PAGE. Powell V. Banks 851 r. Bradlee 679 r. Divett 852 i. Elliot 665 V. Flanary 441 c. ^Morisey 643 r. Xewell 543 r. Pearlstine 850, 851, 861 r. Powell 98, 735, 745 r. Rich 173 c. Sammons 342 V. Smith 572 ;■. Thomas 791 r. Banks 127 Power V. Wells 335, 336 Power's Appeal 459, 814 Powers V. Benedict 708, 716 r. Clarkson 173 r. Hale 753 r. Insurance Co 658 V. Skinner 436 Powers Drv Goods Co. v. Harlin. . 37S Prall v. Tilt 294 Prarie v. Jenkins 383 Prater v. Campbell 173, 298 Prather v. Burgess 393 r. Zulauf 864 Pratt v. Baptist Soc 42, 187 V. Barker 746 r. Bates 170 r. Bowman 664 c. Conway 261 ;■. Humphrey 170 r. Oshkosh ilatch Co 226 V. Philbrook 709 V. S. Freeman & Sons ^Ifg- Co 336 r. Short 141 Pratt's Appeal 281 Pray v. Burbank 402 Preble v. Bottom 332, 342 Precious Blood Soc. v. Elsythe. . . 715 Press i: Coke ". 751 Prendergast V. Lee 340 Prentice v. Brimhall . 248, 249, 253, 260 V. London 447 Prentiss V. Paisley 87 Presbury v. Fisher 482 Presby v. Parker 701 Prescott V. Battersbv 402 V. Jones '. . 10, 29, 32, 650 V. Norris 82 President r. Green 565 Pressly r. Kemp 738 Prest v. Cole 832 Preston r. Dania 556, 632 V. Luck 572 V. Missouri, etc.. Lead Co... 144 161 r. :\rorris 292 r. Smith 408 PAGE. Prettj-man v. Goodrich 855 Price r. Berrington 102 r. Cannon 204 r. Dyer 311 r. Easton 233, 234, 244 V. First Nat. Bank 215 V. Furman 67, 68 r. Greene 483 r. Hewett 83 r. Ley 635 r. Macaulay 694 r. Mitchell 206 r. Pepper 536 r. Price 120 V. Sanders 80 r. Summers 442 r. Tallman 865 r. Trusdell 238, 258 Price's Appeal 769 Price Co. Bank v. McKenzie 386 Prichard r. Budd 112 Pride r. Bubb 887. 890 Prideaux r. Lonsdale. . . 393, 394, 739 Priest r. White 703 Priestley r. Fernie 116 Prim i\ Hammel 859, 861, 867 Primrose r. Western L'nion Tel. Co 54 Prince v. Griffin 628 r. ilcEae 802 r. Oriental Bank 853 Prince's Mfg. Co. v. Prince's Paint Co 419 Prince of Wales Assce. Co. r. Harding 900 Pringle r. Pringle 395 Printing and Numerical Regis- tering Co. r. Sampson. . . . 426, 478 Printup r. Mitchell 873 Pritchard r. ^Merchants' Life In- surance Society 614 Pritchard r. Norton 781 Proctor r. Cole 461 r. Keith ■ 204 Produce Exchange Trust Co. v. Bieberback 854, 862 Prole V. Soady 917 Prosser r. Edmonds. . . 449, 453. 456 457 Proudfoot r. Montefiore 657 Prout r. Pittsfield Fire District. 214 Prouty V. Wilson 850 Providence Coal Co. v. Co.xe 331 Providence Tool Co. v. Norris. . . . 436 Pruden r. Williams 263 Prugnell r. Gosse 475 Pryse r. Pryse 45S Puffli r. Barnes 273 Pul brook r. Lawes 787 Pullman Palace Car Co. v. Cen- tral Transportation Co 495 TABLE Ol'" CASES. CXVll PAGE. Pulsford r. Richards 707 Pulver V. Skinner 258 I'urcell V. McNamara 749 rur"f'll ( W. IT.) r. Rasre 197 Purdy r. Rome, etc., R. Co 818 Purner r. Piercy 173 Pursley r. Hays 68 Purvines v. Harrison 644 Putnam r. Dike 780 r. Field 257 r. Glidden 3.36 i: Tennyson 199 r. Woodbury 210 Putnam Bank r. Snow 2.5 Putney i: Farnham 245,259 Pybus" c. Gibb 382 Pyke. Ex parte 409 Pvle r. Cravens 66 Pvm r. Campbell 312 P'yne v. ^Yoo(l 79 Pyott r. Pyott 98 Q. Quarrier r. Colston 511 Queen c. Bernardo 461 Queen Ins. Co. v. Texa.s 469 Queen -Empress i'. Narottam-dds I^.Iotiram 407 Quick V. Wheeler 25, 27 Quimbv r. Insurance Co 446 V. IMelvin 879 r. Vanderbilt 53 Quincey v. Sharpe 777 Quinlan v. Myers 791 Quinn v. Brown 589 r. Leathem 225, 377 i. Roath 628 r. South Carolina R. Co 130 Quinn's Estate 893 Quirk V. Muller 445 R. Raabe v. Squier 332 Raatz, Re 707 Rabberman v. Niskamp 256 Rabe r. Dunlap 135 Rackeman v. Riverbank Imp. Co. 173, 701, 721 Radcliffe v. Varner 136 Radenhurst r. Bates 235 Radford v. Carwile 891 Radloff r. Haase 633 Rae r. Hulbert 157 Raffles r. Wichelhau.s 599 Rafolovitz V. American Tobacco Co 197 Raggett r. Bishop 808 r. Musgrave 808 Raguet V. Roll 440, 488 Rahilly v. St. Paul, etc., Co.... 53 Rahter v. Bank 402 PAGE. Raife r. Gorell 200 Railroad Co. r. Anderson 695 r. Arnold 132 r. Babcock 753 - /■. Barrett 54 r. Bartlett 27, 28 r. Beckett 17 ■ /•. Blocher 130 ■ r. Bowler 389 r. Boyd 54 r. Brownlee 54 - r. Burke 130 r. C. V. & W. Coal Co 731 r. Campbell 53 r. Gary 446 r. Casey 385 V. Chatham 147 r. Christy 121 r. Commonwealth .... 130, 131 r. Commrs, of Miami Co. . 749 r. Continental Trust Co. . 61 r. Cox 53 r. Croswell 135 r. Dalby 17, 130 (■'. Dane 30, 197 r. Dow 142 ■ r. Dunn 130 r. Elliott 67 r. Fifth Baptist Church 130 r. Franklin Bank 701 i: Go%v 385 r. Harris 135 r. Hine 780 — — v. Howard 144, 147, 288 r. Jackson 605 r. Jones 170 r. Kerr 710 r. Kindred 390 i: King 431 r. Ling 385, 661 r. Live Stock Bank 302 r. Loewenthal 292 r. ^Manufacturing Co 54 r. Mathers 437, 488 V. Mitchell 197 V. Jlorgenstern 100 r. Norwich, etc., Society. . 137 144 r. Orton 141 r. Pattison 388, 731 i\ Poor 389 i\ Power 301 V. Quigley 130 r. Ragsdale 791 r. Ralston 437 r. Reeve.? 301 V. Reichert 523 V. Reynolds 54 r. Rhodes 286 r. Richardson 119, 120, 654 v. Rinard 17 CXVIU TABLE OF CASES. PAGE. Railroad Co. r. Rodebaugh 53 V. Rogers 17, 130 V. Row 70!) r. Ryan 437 r. Schunick .583 • r. Schuyler 137, 701 r. Seelev 437 ■ c. Shay' 5S4 r. South 17 r. Spear 622, 637 c. State 131 r. Steinfeld 639, 70G r. Tavlor 437, 483 r. Tipton 147 /■. Transportation Co 142 r. Tiimble 573, 775 V. Trust Co 142 v. Turner 53 V. Union Steamboat Co.... 140 Railton v. Mathews 659, 661 Railway Co. f. Avery 54 V. Birney 17 r. Carter 54 r. Clark 204 V. Commonwealth 131 r. Conder 565 r. Danforth 549 r. Delonev 53 r. Dewey"" 389 ■ ;;. Ellis 12,-. r. Gaffnev 10 r. Gilmer 301 /". Green 577, 584 V. Harris 130 r. Hennesev 91 r. Herr . .'. 101 r. Holmes 53 V. Hooper 140, 528 /•. Hoyt 528 r. James 125 /•. .Turey 54 r. Keokuk Bridge Co 161 V. Louisville Trust Co 125 V. Lynde 144 r. Xewman 53 V. Simon 54 V. Steiner 731 V. Wood 177 i\ Wright 54 Rainwater v. Durham 79 Raisin v. Clark 388, 389 Rajah Mokham Singh r. Rajah Rup Singh 762 Rake's Adms. r. Pope 177. 789 Raleigh, etc., R. Co. r. Lowe 302 Raley r. Victor Co 545 Ralphsnyder v. Shaw 470 Ralston r. Boady 487 V. Turpin 742 Ram Coomar Coondoo i\ Chun- der Canto Mookerjee 460 PAGE. Rambousek r. Supreme Council.. 873 Ramboz r. Stowell 88 Ramloll Thackoorseydass v. Soo- jumnell Dhondmull 422 Ramsay r. Joyce 394 r. Warner 776 Ramsdale v. Horton 258, 2,59 Ramsden v. Brearley 94 V. Dyson 791 r. Railroad Co 130 Ramsey v. Smith 486, 63^ V. Thompson Mfg. Co 675 Ramsey's Est. r. Whitbeck 483 Ramsgate Hotel Co. v. Goldsmid. 30 V. Montefiore 30 Ranchau r. Railroad Co 53* Rand v. Columbia Bank 598 Randall v. Brodhead 211 r. Dudley 125 r. Ghent 643 V. Kelsey 170 r. Morgan 784 r. Phcenix Ins. Co 448 V. Randall 415, 444 r. Sanders 630 r. Sweet 80 v. Tuell 402 r. Turner 176 r. Van Vechten 101 Randegger r. Holmes 446 Randair v. Trimen 120 Randell, Saunders & Co. r. Thompson 447 Randolph Iron Co. r. Elliott 592 Rangley ;;. Spring 88 Ranger r. Cary 295 Ranken r. Patton 768, 769 Rankin r. Potter 545 Rann V. Hughes 198 Pansier r. Vanorsdol 845, 850 Paper r. Birbeck 853 Raphael r. Bank of England.... 291 Rapid, The 427 Rapp r. Giddings 839 Rapp, Estate of, v. Phoenix Ins. Co 385 Rappleye v. Racine Seeder Co... 323 355, .595 Rashdall r. Ford 688 Rasmussen v. State Bank 199 Ratcliff r. Planters' Bank 856 Ratcliffe r. Smith 488 Rath r. Vanderl\Ti 743 Rathbone v. Tucker 116 Ratzer v. Burlington, etc., Rail- wav Co 303 Rau r. Von Zedlitz 747, 770 Raubitchek r. Blank 181 Raven v. Smith 877 Rawdon r. Rawdon 98 Rawlcy v. Rawley 70 TABLE OF CASES. CXIX PAffk. Hawlins v. Wickham. . . .680, 682, 683 707 Hawson v. Clark 537 V. Copeland 270 V. Davidson 861 V. Railroad Co 53 Ray i\ Haines 67 V. Jones 833 V. Maekin 470 r. Tiibbs 84 Raymond v. Leavitt 372 — V. Minton 551 V. Royal Baking Powder Co. 419 r. Vauijhan 103 Rayner r. Grote 118, 123 ^aysor r. Berkley Co 10 Rea V. Bishop . . ." 101 Head r. Anderson 499 V. Hall 88 V. Johnson 778 V. Legard 99 r. Smith 500 V. State Ins. Co 448 Reade v. Lanibe 783 V. Livingston 794 Ready v. Noakes 753 Reager v. Kendall 679 Real Est. Sav. Inst. v. Linder. . . . 579 Reando r. Misplay 99 Reciprocity Bank, in the matter of the 892 Rector v. Bernaschina 310 V. Collins 577 V. Higgins 270 — — V. Teed 185, 241, 249 Rector, etc., of St. Bartholomew r. Wood 147 Redding v. Hall 531 Redelsheimer v. Miller 257 Redfearn r. Craig 258 Redfern v. Bryning 317 Redgrave v. Hurd." 681, 694 Redhefter v. Leathe 595 Redlands Assoc, v. Gorman 029 Redlich r. Doll 867 Redmond r. Diekerson 1.32 V. Wynne 289 Reece r. Kyle 426 Heed r. Bank 130 r. Bartlett 838 V. Beazley 415 r. Bond 488 V. Brewer 486 V. Gulp 804 r. Deere 709 v. Gold 177, 789 r. Kemp 859 ' V. McGrew 715 V. McKee 440 PAGE. Reed v. Marble 282 V. Marshall 776 V. Morton 856 r. Nevins 283 V. Paul 270 V. Peterson 750 V. Reed 630, 631 r. Root 577 r. Tarbell 814 V. Warner 387 Reeder v. Gorsuch 631 v. Reeder 335 Rees r. Berrington 380 V. De Bernardy 454, 764 V. Lowry 299 V. Overbaugh 853 V. Rees 844 r. Williams 806, 912 Ree.se v. United States 382, 857 Reese River Silver Mining Co. r. Smith 675, 682, 710 Reeve v. Dennett 631, 703 Reeves r, Corning 691 V. llearn 826, 830 R. V. Ash well 599 r. Aspinwall 377 r. Commissioners of Sewers for Essex 535 i\ Cumberland (Justices of). 165 166 V. Demers 196 V. Doutre 805 V. G. N. of Eng. Ry. Co. 129, 130 v. Holmes 886 V. Lord 62 r. Mayor of Stamford 165 r. McDonald 72 V. Middleton 590 r. Prince 565 V. Ramsey and Foote 420 V. Rowlands 376 V. Warburton 377 Regina v. Hardey 878 Reichel v. Jeffrey 836 Reichenbach r. Sage 528 Reid f. Alaska Packing Co 522 V. Bird 717 V. Bradley 584 r. Diamond Glass Co 178 r. Hibbard 837 r. Hoskins 345, 360, 524 V. Reid 95 Reidpath's Case 884 Reif V. Page 22, 205 Reillv r. Gautschi 590 'r. Otto 306 r. Smith 066 Reiniensnyder v. Gans 187 Reinhard'i-. City 503, 730 cxx TABLE OF CASES. PAGE. Keinheimer r. Carter 177, 789 Reinskopf i. Rogge 100 Reis V. Lawrence 88 Reiser v. Mears 349 Remelee v. Hall 363 Remington v. Palmer 173 V. Wright 729 Remington S. M. Co. v. Kczertee. 681 Reniy v. Olds 361 Renals v. Cowlishaw 301, 305 Renard v. Sampson 816, 875 Rennick v. Butterfield 388 Renz, Re ^9 Republic Ins. Co. v. Swigert / 19 Respass v. Jones 850 Resseter v. Waterman 171 Rettinghouse v. Ashland.. 211 Reuss c. Picksley 181 Renter v. Electric Telegraph Co. . 163 ,,. Sala 329, 330, 629 Revel V. Revel ^^ Revbold v. Voorhees 332 Reymond v. Newcomb / ' 8 Reynard r. Arnold 533 Reynell v. Sprye. . . 450, 451, 453, 493 ^ 505, 681, 694 Reynolds v. Bank 141 —L- r. Caldwell 448 V. Crawfordsville National Bank 403 r. Excelsior Co 72b r. Hall 382 - — V. Harrell 443 V. Lawton 258 . r. Nugent 210 r. Reynolds 211, 353, 685 813, 879 i\ Robinson 312 f. Trustees 160 Rhea v. Renner 91 Rheel r. Hicks •• 61- Rhoades V. Chesapeake, etc., R. Co. 816 r. Leach 857, 858; 863 Rhoads v. Armstrong County 876 V. Jones ^'^ Rhoda V. Annis "701 Rhodes, Re ^^' S, Rhodes r. Bate 740, 745, i 1 1 V. Hardy 880 . V. Haynes Rice !". Boyer PAGE, .66, 82 285 Matthews 257 V. Neal 441 V. Rhodes 790 V. Summerhill 427 V. Swithenbank 75 Rhvmney Ry. Co. r. Brecon, etc., Ry. Co 340 Ricard r. Sanderson 261 Ricardo r. Garcias 877 Butler 79 Carter 170 Dwight Mfg. Co 612 Fidelity Co 658 Gist 40(J Gordon 622, 749 Insurance Co 65& London Co 211 Manlv 786 Maxwell 380 Partello 337 Sanders 260 Waddill 395 V. Weber 539 r. Wood 377, 388 Rich V. Black 388 r. Doane 631 V. Lord 815 Richard V. Brehm 158 Richards V. Daily 295 r. Delbridge 219 V. Doyle 666 r. Fisher 813 V. Green 66 V. Grinnell 174 V. Home Assurance Assoc ... 37 Richardson v. Brix 402 r. Buhl 468 Coffman 51 Comstock 215 Crandall 425 Denegre 701 Fellner 865, 874. Gosser 216 Hickman 566 Mather 866 New Orleans Co 701 Olivier 701 Pate 69 Pierce 176, 385 Richards 876 V. Richardson 219 • r. Rowland 452, 513 r. Rowntree 53, 54 r. Scott's Bluff County.... 436 V. Strong ^99 r. Thomas 778 r. Tobcv 300 V. TolliVer 88 V. Williamson H^ Richardson Co. i'. Hampton 215 Riche V. Ashburv Ry. Carriage Co. 139 900 Richelieu Hotel Co. v. Interna- tional Co 187 ; Richeson V. Mead ^52 I Richmond v. Aiken 775 V. Foss 402 r. McGirr If6 . Richmond, Adm., Petitioner 776 TABLE OF CASES. CXXl PAGE. Rick V. Hoffman 261, 2G4 Rickards v. Cunningham T8G Riekerson v. Insurance Co 572 Ricketts v. Harvey 441 v. Scothorn 650 Rickman r. Miller 245, 201 Ricord v. Railroad Co 130 Riddell v. Johnson 734 Riddle v. Backus 176 i: Hall 440 r. Perrv 502 V. Stevens 867 Ridgely v. Conswago Iron Co. . . . 541 V. Robertson 264 Ridgeway r. Herbert 69 Ridgwav ('. Ingram 182 r.'Sneyd 541 V. Wharton 47 Riegel i\ American Ins. Co. . .612, 615 Rielly r. Brown 750 Ries V. Rowland 876 Riesz's Appeal 666 Rifener v. Bowman 845 Rigby V. Connol 808 Rigdon r. Walcott 715 Riggan r. Green 101, 102 V. Sledge 609 Riggles V. Erney 700 Riggs V. Cage 106 — ■ — V. Protective Assoc 211 i: St. Clair 865 Righter v. Roller 638 Rigney v. Plaster 101 Riley V. Carter 101 r. Jordan 487 r. Mallory 67 V. ]\Iinor 174 r. Rilev 837, 874 V. Starr 631 r. Walker 353 Rineer r. Collins 179 Ring V. Jamison 69 Ringo V. Binns 387 i\ Wing 25(5 Rintoul r. White 172 Riordan r. Dotv 408 V. First Church 276 Rioux V. Rvegate Brick Co 332 Ripley v. Mtna Ins. Co 818 V. Case 654 v. M'Clure 351, 353, 359 V. Wightman 531 Risch V. Von Lilienthal 695 Riser v. Snoddy 776 V. Walton 701 Rison r. iloon 879 Ritcher v. Laycock 63 Ritchie v. Bovnton 402 V. Smith 402 Ritenour v. Mathews 210, 841 Rittenhouse v. Levering 857 PAOE. Rittcr V. Mutual Life Ins. Co... 376 548 V. Phillips 275 V. Railroad Co 392 Ritter's Appeal 776 Rivaz V. Gerussi 656 River Wear Commissioners r. Adamson 398 Rivers v. Gregg 78 V. Moss' Assignee 431 ■ r. Rivers' Exs 467 Roach V. Karr 584 Robb V. kludge 276 r. Shephard 88 Robbins r. Ayres 257 r. Eaton 69 r. Martin 664 r. Roscoe 56 V. Webb 300, 301 Roberts r. Bank 204 V. Berrv 627 V. Blair 409 V. Brett 323 r. Bury Commissioners. 550, 551 V. Carter 286 V. Cobb 249, 255 r. Donovan 385 v. Ely 238 r. Fitzallen 261, 268 V. Griswold 199 V. Insurance Co 281 r. Plaisted 695 v. Scull 302 V. Security Co 7, 46, 55 V. Smith 49, 50 Roberts, Edw., Heirs of v. Love- joy 664 Robertson i\ Blewett 452 i\ Breedlove 295 V. Broadfoot 495 r. Cloud 106 i\ Coleman 592 r. Frank Bros. Co 731 r. Hay 853, 859 i\ Lonsdale 244 r. Moline, etc., Co 631 V. Reed 258, 259, 266 V. Roberts 566 V. Robinson 438 r. Stuhlmiller 268 Robinson v. Barrows 515 r. Beall 452 V. Berrvman 859, 871 r. Bird' 565 r. Bland 507, 511 r. Boyd 185 V. Braiden 640 r. Buck 393 r. Davenport 323 CXXll TABLE OF CASES. PAGE. Robinson v. Davison 223, 544, 59» f. Ezzell 731 V. Georges Ins, Co 449 r. Glass 584 V. Gould 729 V. Holmes 261, 276 r. Hoskins 68 V. Hurst 199 r. Jewett 210, 390 r. Leir 716 c. L'Engle 531 r. Lyman 295 r. McFaul 818 r. Mandell 466 V. Mollett 389 r. Myers 874 r. Ommannev 466 i: Page ' 311 V. Pevton 780 r. Perry 295 v. Phoenix Ins. Co 850 v. Pickering 888, 890 • r. Eeed 858, 861 V. Reynolds 89 r. State 590 r. Turrentine 892 r. Weeks 66, 67 r. Weller 43 V. Willoughby 630 RobinsoH & Co.^ Ltd., v. Heuer.. 479 Robinson, King & Co. v. Lynes ... 96 Robison v. McCracken .... 377, 500 Robson V. Bohn 331, 342 V. Dodds 897 r. Drummond 223. 227, 592 V. Mississippi Logging Co.. . 528 559 Roby V. West 399, 515 Rocco t\ Frapoli 432, 495 Rochefoucauld r. Boustead. 723, 784 Rochester r. Levering 743 r. Wlutehouse 832 Rochester Lantern Co. r. Stiles Co 595 Rock r. Matthews 492 Rocka fellow V. Xewcomb 735 Rockville Bank r. Holt 384, 385 Rockwell r. Blair Bank 261 Rockwood r. Brown 283 Roddam v. Morley 774, 779 Rodemer r. Hazlehurst 337 Rodenbarger ;•. Bramblett.. 269, 271 Rodes r. Patillo 431 Rodgers v. Bass 429, 431 r. Comptoir D'Escomte. . . 717 Rodliff V. Dallinger 113, 123, 502 Rodman r. Devlin 876 r. Thalheimer 679 Rodriguez r. Bienvenu 420 Roe r. Barker 266 V. Town Ins. Co 867 PAGE. Roe V. Tranmarr 625 r. York 846 Roebling v. Lock Stitch Fence Co.. 331 349 Roehm v. Horst 358, 300, 360, 367 369 Roger v. Raines 508 Rogers v. Atkinson 633 i\ Blackwell 101 V. Castle 272 V. Edwards 031 i\ Galloway College 187 249. 255 V. Gosnell 238, 257, 269 273, 276 V. Hadley 313 • i\ Hanson 608 r. Herron 261 V. Higgins 709, 769 V. Hill 441 r. Hosegood 300, 301 302, 305 r. Huie 565 V. Ingham 578, 581 - r. Kimball 820 V. Lockett 387 r. Maddocks 479 V. March 109 r. Marriott 407, 409 r. Marshall 453, 735, 742 V. Parry 474 V. Pattie 610 r. Pavne 826 V. Phillips 88 v. Place 584 v. Rogers . . . 204, 415, 776, 850 v. Sliaw 858 V. Skipworth 565 r. Union Stone Co 257, 259 V. Walker 101 Rogers Locomotive Works v. Kelley 239 Rohman r. Gaiser 249, 254 Rohrbough i\ Leopold 718 Rohrer v. Muller 180 Rohroff V. Schultze 695 Roland v. Gundy 567 Rolfe v. Flower' 227 V. Wooster 295 Roll V. Raguet 440, 488 r. Roll 415 Roller V. Ott 469 Rolling Stock Co. r. Railroad Co. 389 Rollins r. Lashus 730 r. Marsh 204, 815 V. Townsend 879 Roman r. Mali 505, 736 r. Peters 382 Romberg r. McCormick 292 Romford v. Canal Co 898 TABLE OF CASES. CXXIU PAGE. Hommel i\ Wingate 604 Rooke r. Lord Kensington... 624, 641 Roosevelt v. Doherty 108 V. Mark 778 Root 17. Pinney 515 V. Wright 261, 266, 275 Roper V. Doncaster 889. 890 V. Holland 810 I'. Johnson 350, 360, 369 V. Trustees 661 Roscorla v. Thomas 199 Rose V. Gould 776 V. Hayden 174, 387 V. Kimberly Co 508 V. Mitchell 486 V. VVoUenberg 171 Roselle v. Beckemeier 498 V. McAuliff e 500 Rosenbaum v. Hayes 488 V. U. S. Credit Co 372, 432 495, 548, 580 Rosenberg v. Jett 874 Rosenfield v. F'ortier 839 Rosenheim v. Insurance Co 056 Rosenthal v. Mayhugh 88, 91, 459 V. Weir 571 Rosewarne r. Billing 407 Rosher v. Williams 203, 752 Ross V. Allen 180 V. Conway 746, 769 V. Doland 585, 807 i\ Drenkard's Adm 689 c. Green 406 V. Kennison 261 V. Milne 250 ;;. Singleton 88 Ross's Appeal 394 Rosser v. Darden 114 Rossiter v. Cooper 51 V. Miller 47, 179 V. Walsh 746 Rossman v. McFarland 399 Roszell V. Roszell 639 Roth V. Taysen 350, 360, 369 Rotherham Alum and Chemical Co. Re 235, 243 Rothermel r. Bell & Zoller Co. . . 257 271 Rothmiller v. Stein 654 Rothwell r. Skinker 257, 277 Rottman v. Wasson 174 Roundtree v. Baker 421, 510 V. Smith 407 Rountree r. Lane 175 Rouse V. Bartholomew 271 V. Bradford Banking Co ... . 385 V. Meier 878 Rousillon V. Rousillon. . . 479, 480, 508 Routledge v. Hislop 346 PAGE. Rovegno v. Deffarari 605 Rowan v. Sharp's Rifle Mfg. Co. . 382 Rowe V. Bowman 865 V. Rand 814 V. Raper 80 V. Stevens 388 r. Williams 879 Rowell V. Rowell 414 Rowland v. Boozer 174 V. Miller 302 V. New York, etc., R. Co . . 599 605 V. Rorke 171 Rowley r. Bigelow 571, 716 V. Rowley 93 Rownson, Re 776, 787 Royal r. Lindsay 206 Royal British Bank v. Turquand. 162 898, 900 Royal Exchange Assurance Cor- poration r. Sjorforsakrings Aktiebolaget Vega 483 Royal Ins. Co. v. Beatty 10 Royalton r. Gushing 841 Royer Wheel Co. r. Miller 039 Royse v. State Bank 863 Royston v. Miller 589 Rubidoex f. Parks 743 Ruble V. Massey 540 Ruby V. Talbott 857 Rucker v. Donovan 571 V. Harrington 823 Ruckman v. Alwood 031 V. Bergholz 388, 402 ' r. Brvan 487 V. Pitcher 502 Rudd V. Lascelles 666 Ruddell V. Dillman 585 Rudesill v. County Court 864 Rudge V. Bowman 613, 018 Rudolph V. Hewitt 199 Rudulph V. Brewer 863 Rudy V. Ulrich 735 Rue V. Meirs 249 Rued V. Cooper 408 Ruff V. Jarrett 097 Ruffier V. Womack 631 Ruffles V. Alston 418 Ruffner r. Love 22 Rugan V. Sabin 721 Rugg r. Moore 332 Ruggles r. Brock 720 r. Insurance Co 057 Kuhling r. Hackett 261 Ruiz V. Norton 112, 115 V. Renauld 25 Rumball r. Metropolitan Bank. . . 293 Rummington v. Kelley 342 Eumsey i\ Berry 400, 409 CXXIV TABLE OF CASES. PAGE. Rundle r. Spencer 68 Runnamaker r. Cordray 876 Rupley V. Daggett 599, 605 Rupp (/'. Sampson 388 Rural Homestead Co. v. Wildes . . 720 Rush V. Dilks 262 Rusk r. Fenton 88, 102 Russ Lumber Co. v. Muscupiabe Co 324 Russell V. American Tel. Co 294 V. Branham 088 V. Critchfield 654 V. Da Bandeira 551 V. Daniels 215 . V. Davis 779 V. Durham 748 V. Falls Mfg. Co 30 r. Langstaffe 867 V. Longmoor 854 V. Lytle 832 V. Reed 850, 851 V. Russell 447, 735, 792 r. Shoolbred 386 V. Southard 630, 631 V. Stewart 14 V. Tliornton 35 V. Wakefield Waterworks Co 897 V. Western Union Tel. Co.. 271 V. Wiggin 25 r. Young 573 Russell's Appeal 739 Russell's Application, Matter of.. 205 Rust V. Larue .^ 452 Rutenberg r. Main 174 Ruth V. Katterman 500 Rutherford r. Mclvor 575 Ruthven v. Clarke 285 Rutland Electric Light Co v. Bates '. 391, 392 Rutland R. R. Co. v. Cole 258 Rutledge v. Greenwood 10 Ruzicka v. Hotovy 178 Ryall V. Rowles 440, 458 Ryan v. Ashton 736 v. Dayton 339, 548 V. First Bank 859, 863 V. Growney 85 V. Hamilton 468 V. Martin 451 V. Railway Co 389 V. Smith 79 V. Ulmer 652 V. United States 179, 182 Ryder v. Hulse 89 V. Loomis 179 V. Ryder 685 V. Wombwell 76, 77, 78 Ryer v. Stockwell 14, 23 S. S. Jarvis Adams Co. r. Knapp . . . 408^ Sackville-W>st v. Viscount Holmesdale 643 Sacramento Co. v. Southern Pacific Co 147 Saddlery Mfg. Co. t'. Hillsborough Mills 469 Safford v. Grout 697 Sagadahoc Co. v. Ewing 723 Sage V. Fargo Township 147 V. Truslow 270 Saint V. Wheeler, etc., Co 661 St. Alban t'. Harding 758- St. Andrew r. Manchong 286 ■St. Andrew's Church's Appeal . . . 302 St. Anthony Falls Co. v. Merri- man 640 St. George v. Wake 393, 394 St. John r. St. John 415 St. John's Mfg. Co. v. Munger. . . 226 St John's V. Charles 282 St. Joseph r. Rogers 137 St. .Joseph's Orphan Asylum r. Wolpert 11 St. Leonard's, Shoreditch (Guard- ians of) V. Franklin 131 St. Louis V. St. Louis GasligTit Co 446. 879 St. Louis V. Von Phul. . 249, 251, 253 St. Louis Brewing Assoc, r. Mc- Enroe 608 St. Louis Gas Light Co. r. St. Louis 573 St. Louis Hay Co. v. United States 177 St. Louis, etc., Ry. Co. v. Johns- ton 701 St. Louis, etc., Ry. Co. v. Phillips 750 St. Louis, etc., Ry. Co. r. Postal Tel. Co 409 St Louis, etc., Ry. Co. v. T. H., etc., Ry. Co 141, 488 St. Mary's Church, Case of 160 • St. Paul Co. V. Dayton 161 j St. Paul, etc., Ry. Co. r. Black- ' mar 573 St. Philip's Church v. Zion Church. 160 Salbadore r. Insurance Co 23 Salem r. Anson 633 Salesbury r. Shirley 299 Salinas v. Stillman.... 436 Salinas r. Wright 52 Salisbury ii. Barton 699 Salley v. Terrill 587 Salmon r. Brown 257 l\ Hopkins 110 Salmon Falls Mfg. Co. v. Goddard. 179 TABLE OF CASES. cxxv PAGE. Salsburv i\ Ware 391 Salt Lake City v. Hollister 130 Salter r. Bradshaw 758 Salton r. New Beeston Cycle Co. 106 Saltus v. Belford Co 194 Salyers r. Smith 363 Sammons i\ Halloway 798 Sample r. Barnes 492 V. Cochran 386 V. Hale 249, 251, 254 Sampson r. Camperdown Mills. . . 409 r. Mudge 577 i: Shaw 497, 501 V. Townsend 486 Sams r. Stockton 79 Samuel r. Cheney 718 r. Fairgrieve 199 Samuels r. Oliver 407 San Antonio v. Lewis 161 r. Mehaffy 137 San Diego R. Co. v. Pacific Beach Co 389 San Francisco Bridge Co. v. Dimi- barton Co 342 San Juan r. St. Johns Gas Co. . . 206 Sanforn V. Fireman's Ins. Co.... 178 r. Flagler 179 r. Little 286 V. Maxwell 877 r. Neal 120 Sanders V. Clason 257 i\ Coleman 547 t". Munson 573 V. Pottlitzer Co 48 V. St. Neot's Union 164 Sanderson v. Aston 382, 385 r. Graves 789, 799, 824, 825 r. Morgan 104, 439 V. Symonds 859 Sands c. Church 275 i\ Insurance Co 429 Sandwick Mfg. Co. r. Krake 439 Sanford r. Emory's Adm 345 r. Gregg 136 r. Kane 299 V. Sornborger 729 Sanger v. Dun 589 r. Hibbard 67 Sanson r. Rumsey 847 Santa Clara Co. v. Hayes... 468, 482 Santos r. Illidge.. 507, 509, 510, 512 912 Sapp r. Faircloth 169 Sargeant v. Solberg 56 Sargent v. Baldwin 739 V. French 891 V. Southgate 295 V. Sturm 716 Sarles v. Sharlow 176 Sarter r. Gordon 753 PAGE. Sartwell i\ Sowles 878 Sasportaa v. Jennings 728 " Satanita " ( Tlie ) 26 Satterfield v. ALilone 631 Satterthwaite r. Emley 794 Sattler v. Hallock 573 Saufley v. Jackson 744 Saulet (;. Trepagnier 386 Saunders v. Blythe 812 r. Griggs's Adm 876 j r. Hatterman 692 I r. McClintock 261, 272 I V. Phelps Co 408 r. Saunders I4 ! V. Stewart 631 j V. ^\^.itcomb 206, 311 Savage v. Blanchard 836, 837 V. Canning 337, 346 V. Gregg 285 V. Mason 300, 301 V. Savage 854, 869 V. Tyers 317 Savannah Co. v. Collins 659 Savannah Ice Co. v. American Refrigerator Co 197, 332 Savannah, etc., Ry. Co. v. Atkin- son 335 Savery v. King 740, 744, 769 Saville v. Saville 753 Savin v. Hoylake Ry. Co 410 Savings Bank i\ Burns 403 V. National Bank 488 Savings Soc. v. Davidson 630 Sawtells V. Howard 879 Sawyer, Re 380 Sawyer v. Brossart 43 •' V. Campbell 864 r. Hovey 572, 639 V. Lufkin 99 I'. Macaulay 780 r. Peters 849 r. Prickett 292, 689, 692 r. Sawyer 786 r. Senn 384 r. Smith 402 r. Taggart 408, 409, 493 Sax r. Detroit Ry. Co 51, 52 Saxon Life Assurance Society, Re. 578 Saxton i\ Seiberling 470 Sayers v. Collyer 306 Sayles 1?. Sayles 444 Sayre v. King 383 Sayward v. Dexter 250 Scales V. Ashbrook 577 Scaltock V. Harston 299 Scanlan i . Cobb 101, 102 V Grimmer 261, 275 Scanlon ;•. Oliver 49 r. Warren 409 Scarlett i\ Stein 628 Scarpellini f. Atcheson 774 <'XXV1 TABLE OF CASES, PAGE. Scarritt, Matter of 461 Sceva r. True 11, 12, 99 Schaferman v. O'Brien 876 Schaps r. Lehner 102 Scharf r. Moore 820 Schawhan r. Van Nest 338 Scheftel r. Hays 721, 723 Schenectady Stove Co. r. Hol- brook 19, 27, 43 Schenks v. Strong 84 Scherer v. Schorer 415 Schermerhorn v. Talman 503 f. Vanderhoyde 249 Scheuer v. Monash 177 Schierman r. Beckett 788 Schiffer r. Dietz 715 Schilling v. Mullen 284 Schimmelpennich v. Bayard 25 Schintz r. Mc:\Ianamy/ 586, 856 Schlageck v. Widhalm 853 Schlapback r. Long 893 Schlee r. Guckenheimer 408 Sehlegel r. Herbein 573 Schleicher r. Montgomery Light Co 52 Schlicher r. Keeler 56 Schliess r. Grand Rapids 528, 530 Schloss r. Feltus 717 V. Hewlett 439 Schlottman r. Hoffman 914 Schmaltz ly. Avery 123 Schmelz v. Rix . / 856 Schmid r. N. Y., etc., Railway. . . 258 Schmidt v. Glade 256 r. Quinzel 852 V. Reed 628 Schmitheimer r. Eiseman 82 Schmitt V. Schnell 361 Schmucker r. Sibert 241, 261 'Schneider r. Henschenheimer 204 r. Turner 408 r. Vogler 175 V. White 258 Schnell v. Nell 193 Schoen v. Houghton 812 Schoenberg v. Adler 409 Schofield V. Bank 140 Scholefield v. Templer 721. 723 Scholey r. Central Ry. Co. of Venezuela 709 i\ ]\Iumford 731 Scholfield r. Earl of Londes- V)orough 868 V. Eichelberger 427 Seholtz r. Northwestern Ins. Co. . 49 Scbommer r. Farwell 730 f chomp r. Rchenck 452 f^chool Directors r. Boomhour. . . . 678 School District r. Hayne 342 r. Howard . . 552 V. Livers 273 PAGE. School District No. 1 v. Dauchy. . 528 536 Schoolfield r. Hirsh 285 Schoonover v. Dougherty. . . . 539, 643 r. Osborne 595 V. Voochow 789 Schotsmans v. Lancashire and Yorkshire Ry. Co 570 Schott, In the Goods of 914 Schreyer v. Turner Mills Co 226 Schroeder r. Fink 215 i: Kinney 264 Schryver V. Hawkes 864 Schuchart r. Schuchart 158 Schuff V. Ransom 101 Schuler v. Israel 876 Schuler r. Myton 210 Schulte V. Hennessy 549 Schultz V. Catlin 729 v. Culbertson 729 V. Insurance Co 39 V. Johnson's Adm 543, 595 Schuster v. Kas. Citv., etc., Rv. Co '. .". 257 Schutt r. Missionary Soc 467 Schuyler v. Hoyle .". 89 Schuylkill County r. Copley 584 Schwalm r. Holmes 469 V. Mclntyre 852 Schwartz r. McCloskey 716 V. Saunders 537 V. Wilmer.. . . 800, 861, 866, 867 Schwarz r. Oppold 872 Schwarzenbach V. Odorless Exca- vating Co 579 Schwass v. Hershey 633, 6.37 Sehweizer v. Tracv 716 Schwenk v. Navlor 696 Scofield r. Ford 865 r. Tomkins 633 Scofield, etc., Co. v. State 701 Scolfield i\ Penna. Co 53 Scollans r. Flynn 409 Scotland Bank r. O'Connel. . . 867, 868 Scotson r. Pegg 207 Scott r. Armstrong 286 r. Avery 448 V. Barnes 879 r. Bibo 856 r. Buchanan 63 r. Corp. of Liverpool 448 r. Deweese 675 r. DuflFy 511 V. Duncan 642 r. Eburv (Lord) 121 r. Fields 628 r. Freeland 38T r. Gillmore 807 r. Kittanning Coal Co 33--> r. Lane 795 V. Lewis 790 TABLE OP CASES. CXXVll PAGE. Scott V. Littledale 601 V. Pilkington 24 V. Sanders' Heirs 876 i\ Sebright 677, 727 V. Tyler 466 Scotfs Adni. V. Gill 261 Scott's Heirs v. Scott 335 Scotten V. State 503 Scottish Am. Mortgage Co. 17. Davis 41 Scottish Ins. Co. v. Clancy 448 Scottish Petroleum Co., Re... 676, 711 920 Scovill V. Barney 750 c. McMahon 524, 526 IK Thaver 71!) Scribner v. Collar 388 i\ Flagg Mfg. Co 177 Scully V. Kirkpatvick 557 Sea Ins. Co. v. Johnston 39 Seager, Re 84 V. Aston 775 Seaman i'. Hasbrouck 258, 274 Searing v. Benton 261, 271 v. Searing 80 Sears v. Grand Lodge. . . 215, 578, 61.") V. Leland 61.3 V. Railroad Co 10 v. Shafer 745, 76S Seaton v. Grant 897 r. Heath 656, 660, 662 r. Henson 840 V. Seaton 81 V. Tohill 66 Seattle Board r. Hayden 893 Scaver v. Phelps. . .\. 101, 102 Seavey r. Potter 708 Sebastian Mav Co. ;;. Codd 654 Secor r. Lord 258 Security Trust Co. v. Dodd 508 Seddon r. Eosenbaum 176 Sedgwick r. Stanton 450 Seear v. Lawson 453, 456 Seeberger r. McCormick 119 Seegar r. Edwards 392 Seehorn r. Hale 391 Sceley v. Welles 51 Seemuller r. Fuchs 109 Segars v. Segars 787 Seibel i\ Vaughan 865 Seiber c. Price 730 Seiffert Lumber Co. r. Hartwell. . 274 Seig V. Acord's Ex . 776 Seigman r. Hoffnckpr. . . 257. 259, 276 Seller r. Economic Life As.soc. . . . 376 Seipel r. Insurance Co 548. 550 Selby r. Case 217 Selden ;'. Mvers 584 Self r. Cordell 177 Seligman r. Le Boutillier 446 Sellers r. Stevenson 652 PAGE. Selma v. Mullen 101 Selsey (Lord) ;;. Rhoades 74t> Semmes v. Insurance Co 525 V. Worthington 791 Sennott v. Mallin 537 Serapis, The 11!) Service v. Heermance 725 Serviss i^. McDonnell 258, 2()(f Sessons V. Sessons 623 Seton V. Slade 028 Setter r. Alvey 4S« Seward V. Rochester 44S Sewell V. Burdick 303 V. Richmond 402 r. Royal Exchange Assvir- ance Co 494 Servers (Commis. of) r. Reg 536 Sext V. Geise 170 Sevbolt I?. New York, etc., R. R. Co 21f) Seymour v. Armstrong 10, 43 r. Bailey 430 r. Bridge 499 v. Butler 815 V. Cushway 174, 17!) V. Delancv 753 r. Detroit, etc., Mills 377 V. Mackay 630 V. Mickey 854 r. Minturn 818, 821 Shaber v. St. Paul Water Co 299 300 Shackamaxom Bank v. Yard 383 Shackleford r. Hamilton 547 Shadburne v. Daly 213 Sliaddle v. Disbrough 753 Shade r. Creviston 691 Sliadwell v. Shadwell 207 Shaeffer r. Sleade 715 Shafer V. Insurance Co 108 Shaffer v. McKee 292 Shaffner v. Killian 341 Shafher v. State 64 Shahan r. Swan 177, 790 Shaklett v. Polk 427 Shamp v. Meyer 257, 267 Shand v. Du Buisson 804 Shank r. Mingle 411 Shannon r. Bruner 430 r. Marmaduke 38" Shapley r. Abbott 779 Shardlow r. Cotterell 170 Share V. Anderson 875 Sharington r. Strotton 191 Sharkey r. McDermott 790 Sharman r. Brandt 123, 3SS Sharon i\ Gager 747 V. Sharon 153 Sharp V. Blankenship 175 V. Leach 74.5 r. Ropes 301 CXXVlll TABLE OF CASES. PAOE. Sliarp V. Stalker 492 V. Taylor 433, 494, 500 V. Tpese 380 Sharpe r. Bellis 871 V. Foy 795 V. Orme 845 Sharpies v. Adams 284 Sharpless V. Gummey 699, 703 Sharpley v. South and East Coast Rv. Co 709 Shattoek v. Shattock 888, 894 Shattuck V. Gay 639 I". Insurance Co 886 Shaub V. Lancaster 24 Shaw V. Carpenter 484 v. Coffin 84 r. Foster 231 v. Gilbert 692, 697 r. Jeffery 381 V. Lady Ensley, etc.. Coal Co. 570 V. Pratt 820 r. Railroad Co 302 r. Reed 440 r. Republic L. I. Co 361 V. Silloway 774 v. Spooner 440 r. State 879 r. Thompson 99 r. Walbridirc 630 V. Woodcock 731, 786 Shaw's Claim 410 Shawmut Bank v. Boston 532 Sheahan r. Barry 361, 365, 677 Shcaly v. Toole 199 Shear v. Wright 559 Shear's v. Westover 643 Shedeinsky v. Budweiser Brewing Co 375 Sheehan v. Allen 101 V. Davis 160 V. Sullivan 735 Sheehy v. Adarene 177, 789 V. Shinn 408 Slieer v. Austin 812 Sheeran v. Moses 324 Sheers V. Stein 463 Sheets r. Selden 112, 5.33 Sheffield v. Ladue 119 Sheffield (Earl of) r. London Joint Stock Bank 294 Sheffield Nickel Co. v. Unwin 715 Shelby V. Guy 781 Sheldon v. Butler 171 r. Capron 599 r. Davidson 689 r. Fairfax 161 r. Haxtun 809 Shell V. Stephens 109 Shelly r. Mikkelson 324 Shelton r. Deering 850 r. Ellis 606 PAGE. Shelton v. Healy 692 r. Jackson 211 r. Johnson 801 Shepard r. Carpenter 49 r. Mills 337 V. Rhodes 193, 199 r. Rinks 174 r. Whetstone 858 Shepard, etc., Co. v. Burroughs.. 717 Shepardson r. Stevens 335 Shephard r. Newhall 570 Shepherd v. Bevin 753 r. Lewis 832 r. May 264 V. Thompson 206, 777 Sheppard r. Oxenford 500 Shepperd r. Sawyer 406 Sherburne r. Shaw 179 Sheridan r. Carpenter 860 Sherfy r. Argenbright 431 Sherl'ey r. Peehl 28, 30 V. Riggs 461 Sherman v. American Stove Co. 675 V. Sherman r. Kitzmiller.. . 49 V. Sherman 844 Sherman County r. Howard 525 V. Simons 137 Sherraden r. Parker 386 Sherry v. Picken 173 Sherwin v. Brigham 210 r. Fletcher 180 r. Nat. Ca.sh Register Co... . 31 V. Rutland, etc., R. Co 827 V. Sanders 200 Sherwood r. Merritt 854 V. Salmon 691 V. Sherwood 914 V. Walker 606, 612 Shethar i\ Gregory 414 Shewalter v. Pirner 141 Shewen v. Vanderhorst 786 Shields v. Titus 302 Shillito V. Hobson 218 Sliillito Co. V. Richardson 780 Shingleur v. Western Cnion Tel. Co. 604 Ship's Case 602 Shipley v. Bunn 67 V. Carrol 587 V. Patton 178 Shipman v Bank 292 V. Furniss 735, 737 1'. Horton 67 V. Seymour 679 Shipp V. McKee 69 r. Suggett 862, 863 Shirk V. Schultz 63 Shirley v. Harris 216 V. SwaflFord 854 TABLE OF CASES. CXXIX PAGE. Shirts V. Over John 585 Shisler v. Vandike 443 Shively v. Semi-Tropic, etc., Co.. 324 354 fihively v. Welch 640 Shivers r. Simmons S8 Shober, etc.. Lithographing Co. v. Kerting 256 Shoecraft v. Beard 775 Shook v. People 557 Shoolbred r. Roberts 501 Short r. Price 217 V. Stone 358, 359, 3G5 v. Stotts 172 Shorter v. Cobb 420 Shortle v. Terra Haute, etc., R. R. Co 210 Shotwell V. TIamblin 4'J5 Slioultera v Allen 102 Shreve v. Brereton 633 Shreves r. Allen 291 Shrewsbury (Earl of) c. N. Staf- fordshire Ry. Co 437 Shropshire {•. Burns 66 Shuey v. United States 23, 25 Shufeldt r. Pease 717 Shulter's Case 583 Shupe V. Galbraith 213 Shurtleff r. Millard 67 I'. Dorr 176, 177 V. Heath 468 t'. Hennessy . . , 332 Shuttler r. Brandfass 689 Sibley v. Alba 452 Sibley v. Felton 46, 47 Sidall V. Clark 484 Sidenham v. Worlington 200 Siebert v. Leonard 836 Siebold ;;. Davis 39 Siegel V. Eaton & Prince Co 538 Siegert v. Abbott 419 Sieveking v. Litzler 69 1 Sigourney v. Sibley 813 Silber Light Co. r. Silber 897 "Silberman v. Munroe 699 Siler r. Gray 543 Sill V. Reese 854 Sillem V. Thornton 659 Sillinian v. Gillespie 664 V. Railroad Co 136 r. United States 728 Silsbec V. Webber 747 Silsby Mfg. Co. v. Chico 51 Silverthorn v. Wiley 200 Simar v. Canaday 692 Simonds, Ex parte 580 Simmons •' Atkinson 867, 868 V. Clark 834 V. Headlee 790 PAGE. Simmons v. More 1 19 I'. Simmons 677 Simmons Creek Co. v. Doran .... 639 640 Simmons Medicine Co. r. Mans- field Drug Co 419 Simms v. Hervey 855 V. McClure 102 Simon r. Goodyear Co 708, 709 Simonds v. Heard 108 Simons v. G. W. Ry. Co 587 V. Patchett 119 Simons V. Vulc. Oil Co 389, 676 Simpkins i'. Windsor 873 Simpson v. Crippin 328, 329 V. Denison 896 V. Eggington 593, 841 r. Evans 206 V. Garland 119 V. Hall 295, 786 V. Lamb 453, 455 r. Lord Howden 412, 437 V. Nance 171 V. Prudential Ins. Co.. . . 67, 68 r. Roberts 443 V. Sheley 870 V. Simpson 415 V. United States 528 Simrell r. Miller 779 Sims r. Alabama Brevring Co. . . . 482 V. Bond 114 V. Everhardt 69, 82 V. Ferrill 689 V. Hutchins 786 i\ Landray 182 V. Sims 98 Simson r. Brown 256 Sinard i-. Patterson 827 Sinclair v. Bradley 169 V. Healey 716 r. Richardson 170 Singer v. Schilling 708 Singer Mfg. Co. v. Draper.. 402, 490 V. Rawson 747 V. Sammons 716 Singerly r. Thayer 51 Singleton v. Bank of Monticello. . 408 486 V. Bremar 411 V. McQuerry 862. 863, 871 Singleton's Adm. v. Kennedy.... 681 Sinsheimer v. Garment Workers . . 490 Sioux City Co. v. Trust Co 142 Sioux Citv Stock Yards Co. v. Sioux city Packing Co 835 Sirrine r. Briggs 873 Simsey v. Eley 412 Sissung r. Sissung 685 Skaaraas v. Finnegan 120 IX cxxx TABLE OF CASES. PAGE. Skeate v. Beale 728 Skeet V. Lindsay 777 Skidmore v. Bradford 917 V. Jett 889 Skiff V. Johnson 486 V. Stoddard 389, 408 Skilbeck v. Hilton 626, 715 Skillen v. Water Works Co. . 531, 533 Skillett V. Fletcher 383 Skilling V. Bollmau 302, 717 Skillings v. Coolidge 879 Skillman Hardware Co. r. Davis.. 341 Skinn v. Reutter 298 t?. Gold Mine Co 204 V. Harker 261 V. Henderson 502 V. Maxwell 66 V. Tirrell 12 v. Wood Co 194 Skobis V. Ferge 280, 282 Skottowe V. Williams 723 Skrainka r. Allen 719 Skyring v. Greenwood 579 Slade V. Mutrie 844 Slade's Case 156 Slagle V. Goodnow 679 Slater v. Jones 814, 833 V. Smith 180 Slator V. Brady 62, 87 V. Trimble 67 Slattery v. Schwannecke 108 V. Slattery 845 Slaughter v. Bernards 850 Slaughter's Adm. v. Gerson 693 Slavton r. Barrv 82 r. McDonald 346 Sleeper v. Davis 708, 717 Slingerland v. Slingerland 791 Sloan V. Becker 631 V. Sommers 282 V. Williams 595 V. Wolf Co 608 Slocum V. Woolev 436 Slocumb V. Small 798 Sloman v. Cox 869 V. Walter 632 Slutz r. Desenberg 631 Small V. Boudinot 725 V. Railroad Co 452 Small V. Sehaefer 257, 259 V. Small 395 Smalley v. Greene 177, 595, 789 Smart v. Smart 170, 462 V. Tetherly 240 V. West Ham Union 165 V. White 503 Smethurst r. ]\Iitchell 116 Smilev r. Barker 824, 825 v. Bell 279 PAGE.. Smith, Matter of Will of 734, 736 Smith V. Adms. of Smith 787 Smith V. Allen 640 V. Anderson 910' V. Applegate 437 r. Arnold 402 V. Atwood 729 r. Bank 679 V. Bartholomew 204, 821 r. Bateman 28 V. Beatty 683 i\ Becker 91 r. Blackley 501, 503 V. Bond 892 r. Bromley 504 r. Brown 691, 836 V. Bryan 173 V. Burnham 174 v. Cartwright 165 V. Chadwick 692, 697 V. Clarke 684 V. Collins 387 V. Countryman 683 ■ V. Crooker 864 V. Crosby 631 V. Cross 265, 266 V. Cuff 504 V. Delaney 171 17. Doak 662 V. Eggington 298 V. Elrod 834 V. Evans 68 V. Farmers' Mutual Ins. Assoc 855 i\ Felter 108, 112 V. Flack 274 V. Georgia Loan Co 350 V. Godfrey 508 V. Gowdy 19 V. Greely 634 V. Green 794 V. Greenlee 470 V. Hale 608 V. Harrison 299 V. Hartford Water Works.. 121 V. Holcomb 880 V. Holzhauer 868 V. Hughes.... 309, 582, 618, 650 696 V. Iliffe 643 V. Jewett 253 V. Jones 180 V. Jordan 636, 639 V. Josselyn 661 V. Kay 693, 697, 733, 734, 745, 748 V. Keating 239 V. Keith Coal Co 331 V. Kelly 816 V. Kerr 827 TABLE OF CASES. CXXXl PAGE. Smith V. King 71 V. Kitchens 558 V. Land and House Property Corporation 669 V. Ledyard 25 t'. Lewis 827 V. Lindo 404, 909 V, Livingston 291 V. Loomis 824 V. Los Angeles, etc., Ry. Co. 256 V. Lucas 65, 317 V. McLean 531 V. McLeod 386 t'. McNair 654 V. Mace 870 V. Mapleback 813, 836 V. Marrable 673 V. Mawhood 402, 403 V. Mechanics' Bank 292 V. Moore 23 t\ Morse 197 V. Neale 176, 181 ■ V. Nicolls 877 V. Ostermeyer 261 V. Owens 378 V. Penn 578 V. Peoria Co 383 V. Phillips 204 V. Pierce 467 V. Pleasant Plains School District 552 V. Putnam 174 V. Railroad Co 446, 550 i\ Robson 52 V. Sayward 171 V. Sheelcy 141 v. Sherman 547 V. Silence 91 V. Smith 247, 249, 269, 395 406, 584, 679, 685, 864, 870 V. vSorby 392 V. Steele 384 I'. Steely 440 V. Sterritt 285 V. Sweeney 743 r. Thompson 456 r. Tramel 443 v. T\der 204 V. L'llman 470 V. United States 860 V. Walton 913 V. Webster 44 V. Wetmore 362 V. Wheatcroft 591 V. Whildin 205 r. White 487 V. Williams 298 V. Wilson 313 r. Wyatt 211 Smith's Appeal 483 PAGE. Smith's Case.. 675. 683, 698, 703. 796 Smith's Ex. v. Railroad Co 775 Smith, Kline & French Co. v. Smith 690 Smith Typewriter Co. v. Stidger. . 592 Smithers V. Junker 49, 50, 52 Smock 'V. Smock 173 V. Tandy 175 Smoofs Case 354 Smout r. Ilbery 106 Smull )'. Jones 470 Smurthwaite v. Wilkins 303 Smutzer r. Stimson 444 Smyth V. Ames 125 V. Field 403 V. Griffin 412 r. Munroe 88 Snavely v. Pickle 631 Snead \\ Deal 390 Sneed v. Sabinal Co 859 Snell V. Dwight 500 V. Insurance Co 576 V. Ives 256 Snelling's Will, Re, 736 Snevily x. Read 199 Snider r. Adams Express Co.. 265, 269 V. \Villey 440, 483 Snook v. Georgia Imp. Co 135 Snow V. Alley 343, 713 V. Church 377 V. Hix 120 r. Hutchins 88 r. Insurance Co 657 Snowhill V. Snowhill 89 Snowman i\ Harford 627 Snyder v. Laubach 102 — — r. Pharo 842 v. Reno 654 V. Summers 269 V. Wolf red 174 Snyder's Adm. v. McComb's Ex.. . 877 Soaps V. Eichberg 854, 863 Society v. Brumfield 34 Society of Friends v. Haines.... 262 Society of Practical Knokledge v. Abbott 125, 132 Sohier v. Loring 383, 385 Solary v. Stultz 204 Sole w. Hines 346 Solinger v. Earle 380, 5U4 V. Jewett 610 Solomon i\ Dreschler 402 Solomon's Lodge v. Montmollin. . . 160 Solon V. Williamsburgh Bank. 867, 808 Soltau r. Gerdau 710 Soltykoff, Re, Ex parte Margrett. 80 Sommersott's Case 481, 510 Sondheimr. Gilbert. 408, 409, 486, 511 Sonstiby v. Keeley 257 Sooltan Chund v. Schiller 347 CXXXll TABLE OP CASES. PAGE. Sooy ads. State 660, 661 Soper V. Arnold 672 V. Baum 777 i: Gabe 324 V. Peck 585 Soper Lumber Co. v. Halsted Co. . 713 Sornberger v. Lee 778 Sortwell V. Hughes 486 Sottomavor r. De Barros 396, 397 South African Trust Co., Re 350 360, 369 Smith Baltimore Co. v. Mullbach.174 South Bapt. Society v. Clapp 160 South Gardner Lumber Co. v. Bradstreet 361 South Hetton Coal Co. r. Haswell Coal Co 45 South Hetton Coal Co. v. N. E. News Association 130 South of Ireland Colliery Co. v. Waddle 162 South Side Planing Mill Assoc, v. Cutter, etc., Co 257, 271, 277 South Yorkshire, etc., Co. v. G. X. Rv. Co 896 Southall V. Rigg 580, 759 Southampton (Lord) r. Brown. . 100 232 Southard v. Boyd 436 17. Curley 640 Southern Bldg. Assoc. i\ Price... 337 Southern B. & L. Assoc, v. Casa Granda Co 142 .Southern Cotton Oil Co. c. Heflin. 349 Southern Development Co. r. Silva 087, 691 Southern Ex. Co. r. Flatten 130 Southern Ins. Co. v. Turnley 448 Southern Pac. Co. v. Denton 446 r. Prosser 778 Southern Ry. Co. v. Harrison.... 495 Southev r. Sherwood 419 Southwell V. Bowditch Ill Southwell V. Breezley GOi, Southworth r. Flanders 120 Sovereign v. Ortman 787 Sowards v. ^loss 180 Sowers r. Parker 690 Spackman v. Evans 901 Spader v. Mural Decoration Co. . . 548 SpaflFord v. Warren 8S Spaids V. Barrett 728 Spalding r. Archibald 784 r. Ewing 434, 436 c. Irish 880 V. Rosa 543, 545 Spangler r. Danforth 180 v. Dukes 850 Spann r. Cochran 258, 267 Sparenburgh r. Bannat^-ne 430 Sparks r. Despatch Transfer Co. . 110 PAGE. Sparks's Will, Re, 736 Sparling r. Brereton 800 r. Marks 607, 608 Sparman r. Keim 63 Spaulding v. Crawford 729 v. Davis 275 Speake v. United States 856 Spear v. Bank 171 V. Griffith 199 Spear v. Orendorf 790 Spears r. Hartly 775 Specialty Glass Co. v. Daley 211 Speck r. Dausman 444 Spedding v. Nevell 119 Speed r. Hollingworth G95 V. :May 285 Spiers r. Union Forge Co. . . 350, 363 Spelts r. Ward 584 Spence v. Chodwick 530 r. Healey 836 r. Steadman 631 V. Wilmington Cotton Mills. 103 Spencer v. Harding 13, IS i: Morris 440 r. St. Clair 343 V. Sandusky 663 V. Spencer 11, 393 Spencer's Appeal 387 Spencer's Case 298 Spicer v. Earl 68 r. Martin 301, 305 Spier v. Hvde 815, 8.34 Spiller v. Paris Skating Rink Co. 121 Spink V. Co-operative Ins. Co. . . . 448 Spinks r. Davis 377 Spinney i'. Downev 46 V. Hill . . . . '. 789 V. Miller 275 Spitler v. James 867 Splidt r. Bowles 298 Spofford V. Spoff ord 880 Sporrer v. Eifler 798 Sprague v. Edwards 622 I'. Foster 178 r. Rooney 486 i. Tj'son' 891 Sprankle v. Truelove 595 Spring Co. r. Knowlton 502 Springer v. Kleinsorge 684 r. Toothaker 386 Sprott V. United States 431, 489 Sprye r. Porter. . . . 450, 453, 454, 455 Spurgeon v. McElwain 486 Spurr r. Benedict 663, 672 • V. Cass 124, 235 Spurrier v. La Cloche 448 Squire r. Tod 334 V. Whitton 224, 661 Squires r. Hydliff 68 • V. Squires 415 Staats r. Bersren 387 TABLE OF CASES. CXXXUl PAGE. Stacey v. Foss 501 8tacy V. State Bank 205 Staflorc'i v. Bacon 199 V. iStaunton 577 Stafford (Mayor of) r. Till 166 Stahelin v. Sowle 342 Stahl r. Berger 867 f. Van Vleck 35 Stahlschmidt i: Lett 776 Staines i\ Shore 684 Stainton v. Brown 52 Stakes i\ Baars 332 Stanley r. Western Union Tel. Co. 54 Stamper r. Hayes 813 v. Temple 3, 2u5 Standard Cable Co. V. Stone. 862, 872 Standard Co. v. St. Louis Co 469 Standard Furniture Co. v. Van Alstine 486 Standifer v. Bush 876 Stanford v. McGill 361, 365, 367 r. Treadwell 880 Stangler r. Temple 14 Stanley v. Dowdeswell 44 r. Epperson 84;j r. Jones 453 V. Southwood 880 Stanley Co. r. Bailey 194 Stans V. Bartley 158 Stanton v. Eager 571 V. Haskin 451 i: Kenrick 261, 271 • V. Tattersall 611, 660 Staples V. Gould 408 r. Schmid 565 Star Fire Insurance Co. V. Bank. 292 Star Glass Co. r. Langley 605 Star Publishing Co. v. Associated Press 469 Starbird v. Cranston 256,261 273, 276 Starin v. Kraft 827, 836 Stark V. Duvall 361 V. Eaney 495 Stark's Adm. v. Thompson's Exs. 842 Starr r. Bennett 68S r. Blatner 863 r. Laslimutl 737 State r. Adams 558 r. Allen 558 V. Berg 853 ■ r. Bittick 158 r. Brown 509 r. Butler 199 r. Carver 442 r. Chittv 461 r. Churchill . 856, 857, 871, 872 r. Cincinnati Fertilizer Co. 129 131 r. Cobb 866 V. Collier 438 PAGE. State V. Craig 858, 860, 871, 872 r. Davenport 204 i'. Dean 863, 867 i: Ducker 590 V. Elting 438 r. Findley 8d7, 860 V. Frank 640 • r. Gherkin 806 ;-. Griswold 860, 872 V. Groves 886 i: Hastings 294, 440 r. Hearn 285 r. Horn 557 r. Hughes 886 r. Jefferson Turnp. Co 675 i\ Jenning 284 r. Johnson 434 r. Kennedy 397 r. Loomis 2-i9, 253 V. Lowell 64 r. McGonigle 858 V. Matthews 586 i: Miller 864 r. Murfreesboro 131 ■ I'. Nebraska Distilling Co.. 468 r. Nelson 728 • r. Passaic Soc 131 r. Portland 130 Purdv 438 Pvailr'oad Co. . . 129, 130. 131 Richmond 61 Robinson 590 Ross . . . Rousseau St. Loui.s 509 69 & S. F. Ry. Co 256, 257, 267 V. Shattuck 397 V. Shinn 172 V. Smith 857, 861 r. Swinney 383 i: Towle 464, 465 i\ Tripp 855, 856 (-. Tuttv 397 r. Van ' Pelt 857 r. Welbes 6*32 r. Williamson 439 r. Wilson 153 r. Worthingham 158 v. Worthington 552, 553 r. Young 856 State Bank r." Buhl 575 r. Hutchinson 729 ■ v. Shaffer 869 State Board r. Railroad Co 142 State Trust Co. r. Turner 720 Stathara r. Ferguson 743 V. Insurance Co 428, 429 Stayner r. Jovce 874 Steacv r. Railroad Co 720 Stead r. Dawber 823 Steam Nav. Co. r. Weed 142 CiXXlV TABLE OF CASES. PAGE. Steamship Co. f. Burckhardt . . . . 716 tStearns r. Cope 879 V. Felker 451, 452 V. Reidy 452 V. VViborg 877 Stebbins v. Bruce 284 V. Crawford 19'J V. Morris 92, 415 V. Niles 813 V. Palmer 547 V. Union Pac. R. R. Co. ... 284 Stedman r. Hart 99 Stedwell r. Anderson 577 Steed (;. Calley 745 V. Steeds 827, 836 Steele r. Biggs 628 r. Branch 627 V. Clark 256 V. Curie 486 V. Frierson 459 V. Harmer 145 v. McElroy 110 V. Spencer 866 V. Steele 196, 216 V. Williams 731 r. Worthington 749 Steele-Smith Co. v. Potthast 116 Steeley's Creditors t\ Steeley.... 798 849, 864 Steene v. Aylesworth 259, 269 Steere v. Brownell 879 Steers v. Steamship Co 53 Stees V. Leonard 528, 827 Steffiam v. Milmo Bank 586 Steman r. Harrison 25 Stensgaard v. Smith 35 Stenton r. Jerome 408 Stephen r. Beall 891 r. Alabama Co 691 V. Davis 865 V. Follett 598 V. Graham 866 V. Muir 275 V. Ozbourne 749 V. Southern Pac. Ry. Co. . . 514 V. Venables 286 Stephenson r. Arnold 789 ■ r. Ewing 402 r. Piscataqua Ins. Co 449 Stirling r. Baldwin 174 r. Sinnickson 465 Sterling Remedy Co. v. Wyckoff . . 421 Stern r. La Compagnie Generale. 780 Sternberg i\ Bowman 378 Sternberger r. McGovern 666 Sterne i'. Bank 9 V. McKinney 386 Sterry r. Clifton 438 Stetson r. Insurance Co 659 Steuben Co. Bank ii. Mathewson.. 441 Stevens i\ Benning 223, 596 PAGE. Stevens v. Biller 114 r. Brennan 717 V. Coon 524 V. Cushing 341 r. Flannagan 249, 252 V. Gidding 66* r. Gourley 403 r. Hewitt 777 V. Holman 634 r. Moore 725 —— i\ Philadelphia Ball Club.. 145 r. Railroad Co 135 V. Stevens 285 Stevens' Est., Re 589 Stevens Inst. v. Sheridan 272 Stevenson v. Gray 397, 509 t\ MacLean . ... 27, 31, 34, 35 r. Newnham 716, 717 r. Pettis 1:^0, 495 V. Polk 343 Stewart, Re 9»- Stewart r. Alliston 601 V. Bradford 215 V. Casey 200 V. Conrad's Adni 91 ■ r. Eddowes 181, 621 r. Emerson 679 r. Erie, etc.. Transportation Co 135 V. First Nat. Bank 856 r. Gordon 639, 640, 041 V. H. & T. C. Ry. Co 452 V. Hidden 844 V. Hopkins 79S i\ James River & Kanawha Co 258 i\ Kennedy 573 r. Keteiias 204, 549 I". Loring 552 t\ McFarland 778 i\ Marvel 50 r. IMather 388 r. Parker 383 r. Schall 407 • V. Stewart 395, 578, 615 r. Stone 53b, 539 v. Thayer 483 r. Waterloo Turn Verein... 131 • V. Welch 453 V. Wyoming Ranciie Co. ... 681 Stewart's Case (Agriculturists' Cattle Ins. Co.) 901 Stewarts Case (Russian Vyk- sounskv Ironworks 602 Sthreshlv i: Broadwell 879 Sticken V. Schmidt 890 Stickler r. Giles 206 Stikeman r. Dawson 82, 85 Stiles r. Laurel Fork Co 778 r. Probst 857 r. Willis 640 TABLE OF CASES. cxxxv PAGE. Stilk V. Myriok 204 8ti]l r. Buzzell 377, 488 Ibtillings r. Turner 377 Stillman v. Wickham 382 Stilhvell i\ Glasscock 4i'() V. Patton 873 Stilson i\ .Stilson 444 Stihvell r. Aaron 383 V. Wilkins 741) Stimpson v. Bishop iii)!) r. Maiden 566 Stines r. Dorman 302 Stites r. Thompson 262, 277 Stitt V. Huidekopers 27 fetivers r. Tucker 88 8tockbridare v. Damon 295 Stockbridge Iron Co. v. Hudson Iron Co 634 Stockdale r. Onwhyn 419 Stocker v. Insurance Co 656 Stocks r. Dobson 283 ibtocksdale v. Schuyler 346 Stockton Saving & Loan Soc. i'. Harold 262 Stoddard v. Doane 778 r. Ham 5, 592 r. jIcAuliffe 501 V. Penniman 850 Stoddart i: Smith 6G4 Stogdon V. Lee 96, 888 Stokes V. Anderson 444 V. Baar 323 v. Burns 708 V. Detrick 263 V. Goodykoontz 581 V. McKay 361 Stollenwerck v. Thacher 202 Stone V. Bellows 634 V. City and County Bank. . . 719 r. Clarke " 573 V. Clay 405 V. Dennison 68, 789 V. Godfrey 578 V. Hackett 218 V. Hale 636 V. Nichols 346 V. Tyree . ; 791 V. White 863 Stoneburner v. Motley 201 Stoner v. Ellis * 873 V. Weiser 392 Stoney v. Insurance Co 144 Stoney Creek Woolen Co. v. Snial- ley 392, 690, 691 Stong V. Lane 599 Moner's Trusts 95 Storck V. Mesker 204 Storey v. Logan 25 V. Waddle 620, 645, 726 Storrs V. St. Luke's Hospital .... 456 .Story V. Saloman 406 PAGE. Story V. Springer 631 V. Story 176 Storz V. Finklestein 486 Stoudenmeier v. Williamson 204 Stough V. Ogden 874 Stout V. Ennis 785 V. Folger 270 Stoutenbui'gh v. Konkle 708 V. Lybrand 444 Stovall P.'McCutchen 469 Stover r. Bounds 630 V. Eyclesheimer 459 V. Mitchell 578 Stover's Adm. v. Wood 690 Stow v. Russell 816 V. Steel 622 Stowe V. Flagg 140 Stowell r. Eldred 108, 110, 112 V. Grider 891 V. Hazlett 786 V. Robinson 823 Stowers v. Hollis 176 Strand V. Griffith 695 Strange v. Brennan 452, 454 r. Houston, etc., Rv. Co. 282, 294 Stratford Gas Co. v. Stratford.522, 523 Straughan r. Indianapolis, etc., R. R. "Co 176 Strauss v. Insurance Co 140 V. Meertief 350^ 363 i\ L'nited Telegram Co.... 145 v. Wessel 302 Strawbridge v. Railroad Co 383 Stray v. Russell 524 Street v. Blay 334,342,598 V. Goodale 257 17. Rigby 446, 879 Stribley v. Imperial Marine Insur- ance Co 656, 657 Strickland v. McCulloch 336 V. Turner 614 Stringfellow v. Somerville 462 Stringfield v. Heiskell 596 Strobridge Lith. Co. r. Randall . 19, 47 Strohauer v. Voltez 270 Strohecker v. Grant .249, 258, 259, 276 Strohn v. Railroad Co 54 Strong t\ Darling 402 r. Foote 79 r. Kamm 258. 209 V. Marcy 249, 253 V. Menzies 393 V. Sheffield 49, 50, 213 I'. Strong 282, 63 1 Stroud V. Smith 438 Strouse v. Elting 182 Struble v. Hake 256 Struthers r. Kendall 864 Strvker v. Vanderbilt 206 Stuart V. Baker 08, 175 txxxvi TABLE OF CASES. PAGE. Stuart V. Blum 378 V. Diplock 480 V. Landers 157 V. Sears 575 Stubbings r. Evanston 531 Stubbs V. Holywell Ry. Co 548 Stiulds V. Watson . . .' 182 Sludley v. Ballard 205 Studwell V. Shapter 82, 83 Stuht (-. Sweesy 200 Stump V. Gaby 709 Stumpf V. Stumpf 689 Sturge V. Starr 098 V. Sturge 750 Sturgis V. Preston 581 Sturlyn v. Albany 103 Sturm V. Boker . ." 28, 088 Sturtevant v. State 462 Stuts V. Strayer 382 Stutz V. Handley 589 Stuyvesant v. Western Mtge. Co. . 261 273 Styles V. Long Co 254, 270 Swan V. Caffe 893 Suber v. Pullin 340 V. Richard 778 Suffell r. Bank of England. .865, 800 Suggett's Adm. r. Cason's Adm. . 177 Suit V. Suit 815 Sullivan v. Boley 346 V. California Realty Co. . . . 854 V. Horgan 483 V. McMillan 361 V. Murphy 257 V. Rudisiil 802, 863 V. Shailor 112 V. Sullivan 219,249,251 Suman r. Springate 88 Summerall v. Graham 343 Summers v. Griffiths 749 V. Hibbard 523, 528, 539 V. Hutson 281 V. Vaughn 199 Sumner v. Seaton 791 V. Sumner 440 V. Williams 624 Sumpter v. Hedges 327, 345 Sun Ins. Office r. Varable 531, 532 Sun Mutual Ins. Co. v. Ocean Ins. Co 657 Sun Publishing Co. r. Moore 632 Superior Land Co. v. Bickford. ... 187 Supervisors v. Schenk 144 Supple V. Iowa State Ins. Co. . . . 345 Supreme Assembly v. Campbell.. 744 Supreme Council v. Forsinger . . . 449 V. Garrigus 449 Supreme Lodge v. McLaughlin. . . 653 Surcome i'. Pinniger 792 Surles V. Pipkin 99 PAGE. Surman v. \^Tiarton 97 Susquehanna, etc., Co. v. People. . 131 Su.ssex Peerage Case... 397, 398, 400 Sutch's Est 199, 20O Sutherland v. Reeve 281 V. Wyer 363 Sutphen v. Sutphen 17G V. Crozer 501 Sutter IK Rose 721 Sutton V. Dudley 215 i\ Grey 171 V. Hayden 467 r. Head 469 V. 'Ts-rell 549, 878 V. Warren 50& Sutton's Hospital Case.. 126, 133, 141 Suydam v. Jackson 531 V. Vance 385 SwalTord v. Ferguson 66 Swain v. Seamans 821, 823 Swisland v. Dearsley 007 Swan, Ex parte 295 V. Benson 810 V. Chorpenning 370 V. :\Iathre 692 c. North British Australa- sian Co 291, 580 V. Railroad Co 17 r. Swan 399, 509 V. Scott 492 Swansea Friendly Society 129 Swanston v. Morning Star Mining Co 451 .Swanzey i-. Moore 789 Swarm 'r. Boggs 6.30, 631 Swartz V. Ballou 855, 856 Swa.sey v. Vanderheyden 81 Swazey v. Choate Mfg. Co 345 Sweatman v. Parker 257 Sweeney v. McLeod 430 Sweet V. Brackley 780, 870 r. Desha Lumber Co 176 f. Kimball 730 V. Lee 786 i\ Parker 631 r. Sweet 415, 417 Sweitzer v. Heasly . 215 Swenk v. Wvkoff 439 Swett V. Stark 292 Swift V. Bank 292 f. Bennett 80 r. Jowsburv 701 V. Kelly .' 085 V. Rounds 690 V. Swift 176. 462 r. Tyson 291 r. Winterbotham 703 Swift Co. V. United States. . .731, 732 Swigert r. Tilden 468 Swim r. Wilson 505 TABLE OF CASES. CXXXVll PAGE. Swindon Waterworks Co. r. Wilts and Berks Canal Navigation Co. 138 Swiney r. Barry 85:? Swing 0. ilunson 402 Swire r. Francis 700 Switzer r. Skiles 387, 470 Swobe V. New Omaha Electric Light 327 Sword i'. Keith 17G V. Young 592 Sydney & Co. v. Bird 670 Sykes V. Beadon 500, 910 r. Chadwick 194 Sylvius r. Kosek 640 Synies r. Hughes 503 Symmes r. Frazier 14 Synge v. Synge 360, 467 T. Tabor V. Cerro Gordo, The 876 V. Cillev 577 Taddiken v. Canti-ell 850 Taddv r. Sterious 298 Taft V. Sergeant 69 Tague r. Hayward 790 Taintor r. Prendergast 109 Tait V. Insurance Co 428 Taite v. Goslin 300 Talbot i: Bowen 174 t\ Pettigrew 19 v. Staniforth 744 V. Wilkins 250 Talbot's Devisees v. Hooser 749 Talbott r. English 839 V. Luckett 392 r. Stemmons' Ex 195 Talcott r. Henderson 679 Taliaferro r. Day 250, 253 Talley r. Robinson's Assignee. . . . 753 798 Tallman r. Coffin 298 Talpev r. Wright 704 Tamp'lin r. James 601, 602, 605 606, 753 Tancre i\ Pullman 740 Tancred r. Delagoa Bay and East Africa Railway Co. .". 279 Tanner r. JNIerrill 211 Tapley r. Tapley 729 Tappan r. Aylsworth 743 Tappenden r. Randall 502 Tarbell r. Bowman 610 Tarbox r. Gotzian 197 Tardv r. Creasv 304 Tarleton r. Baker 501 r. Bank 430 Tarner r. Walker 23 Tnrr r. Smith 710 Tartt V. Negus 158 Tasker r. Bartlett 558 V. Shepherd 544 PAGE. Tasker r. Small 220 Tatam v. Reeve 407, 409, 499. 912 Tate r. Fletcher 870 V. Foshee 174, 175 r. Hawkins 775 r. Jones 791 v. Pegues 498 r. Security Trust Co 717 r. Williamson 734. 742, 740 Taussig V. Hart 388, 389 Tavloe v. ilerchants' Fire Insur- ance Co 31, 39, 40, 885 Taylor, Ex parte 69 — ^ r. Acom 863 r. Ashton 682 r. Atwood 750 r. Bell Soap Co 490, 500 r. Bemiss 452 r. Bowers 502, 503 r. Brewer 49 r. Caldwell 530, S32 536, 544, 548, 556, 558, 559 V. Castle 296 r. Chester 497 V. Chichester and Midhurst Ry. Co 139, 515 ^ r. Cottroll 729 r. Crowland Gas Co 403 r. Deseve 177 r. Deverell 634 r. Drake 172 r. Gilman 452, 625 r. Gould 770 r. G. E. Ry. Co 782, 783 r. Hassett 18 r. Hinton 451 /•. Hollard 778 V. Hunt 775 r. Hutohins 429 • V. Jaques 440 V. Johnson 802 V. Johnston 01. 745 r. Jones 886 r. Levy 487 V. Lincumfelter 11 r. Longworth 027, 028 V. Planners 195 V. IMayhew 421 V. Meads 887 r. Miss. Mills 679 r. Nostrand 119 V. Owen 304 V. Page 292 V. Pairy 220 r. Pells' 498 V. Portington 48 r. Pugh .' 393. 394 — r. Rennie 29 r. St. Helens (Corporation of) 318 r. Short 709 I'XXXVlll TABLE OF CASES. PAGE. Taylor v. Smith 178 — '— V. Taintor 557 r. Taylor 735, 861 i\ Weeks 215 r. Wliitmore 260 Tavlor's Estate 408 Taymon i\ Mitchell 608 Teass r. St. Albans 175 Tecumseh Nat. Bank V. Best 257 Tedrick i: Hiner 402 Tegler v. Shipman 886 Teipel r. Meyer 197 Telegraph Co. v. Barnes. ....... 385 Tell City Co. r. Nees 52 Temple r. Johnson 791 Temple Bank v. Warner 631 Tenant V. Elliott 498 Ten Evck v. Manning 66 r. Whitbeck 744 i\ Fawcett 50 Tennent r. City of Glasgow Bank. 720 V. Tennents 749 Tennent-Stribling Shoe Co. i'. Eiuh' 257 Tenney r. Lumber Co 160, 623 Tepoel I'. Saunders County Bank. 725 Tercese r. Gerav 847 Terrett v. Taylor 127 Terrill r. Auchauer 61 Terrv ('. Birmingham Bank 389 ^ r. Brightman 248, 249 V. Durant Land Co 260 r. Hazlewood 864 r. Hopkins 393 r. Tuttle 588, 593 Terry & White's Contracts, Re... 665 Tesson v. Insurance Co 636 Tete V. Lanaux 544 Teter i\ Teter 158 " Teutonia." The 543 Texas v. White 431 Texas Cotton Press & Mfg. Co. r. Mechanics' Fire Co 205 Texas Oil Co. v. Adoue 469 Texas Printing Co. v. Smith 860 Thacker r. Hardy 406. 407 V. Kev . . ! 466 Thackrah v. Haas 713 Thallhimer r. Brinkerhoflf 461 Thames Haven, etc., Co. v. Hall.. . 165 Thatcher r. England 23 V. Morris 507 Thayer r. Burchard 197 V. Daniels 281, 285 r. Knote 614, 618 r. Luce... 108, 112, 175, 181, 182 r. Marsh 261 V. Star Mining Co C29 r. Thayer 395 Tlieiss r. Weiss 3 Theobald v. Burleigh 524 PAGE. Thepold r. Deike 865 Tlieuss V. Dugger 893 Thibodeau r. Hildreth 468 V. Levasseur 780 Tliiedemann v. Goldschmidt 292 Thiis i: Bvers 527 Third Bank v. Hastings 384 V. Owen 661 Thomas, Re, Jaques v. Thomas. . . 454 I'. Armstrong 176 r. Atkinson 115 i: Barnes 35, 204 V. Beals 700 V. Brewer 778 V. Brown 92, 415, 786 V. Casey 778 V. Caulkett 445 V. Coultas 7 10 i: Cronise 488 V. Davis 625 r. Knowles 536 r. McCue 346 V. Railroad Co 142, 143, 573 r. Richmond 503 V. Stewart 332 r. Sweet 391 r. Thomas 9, 186, 192, 595 r. Thomasville Club 11 r. Turner's Adm 741 Thomas Mfg. Co. v. Prather . . 256, 267 277 Thompson r. Adams 795 V. Bertram 261 r. Cheesman 262 r. Conn. Mut. L. I. Co 841 V. Conover 336 r. Cummings 496 V. Davies 470 V. Dearborn 261 v. Dulles 628 r. Elliott 816 r. Gaffev 550 v. Gordon 250, 252, 273 V. Harvey 608 r. Hawkes 746 V. Hudgins 199 V. Hudson 632 i\ Insurance Co 688 i\ James 883 r. Kellv 109 V. Lambert 140, 142 r. Lee 770 r. Libby 709 V. Marshall 460 r. Milligan 402 r. New"^England Co 101 i\ Percivial 211 v. Powles 430 r. Reed 780 V. RejTiolds 450 TABLE OF CASES. CXXXII 298, 679, Thompson v. Robinson V. Rose V. Stevens V. Thompson 262, 823, i\ Universal Salvage Co . . . r. Westbrook V. Wharton 434, V. Whitmore 641, i\ Williams 488, Thompson Mfg. Co. v. Hawes .... Thomson r. Davenport V. Eastwood r. Kyle v. Miles V. Poor V. W^eems Thorington v. Smith Thorn r. Mayor of London r. Pinkham 441, Thornborow r. Whitacre Thornhill r. O'Rear Thornley v. United States Thornton r. Appleton V. Bank r. Guice V. Kelly . V. Kempster ;;. Missouri, etc., Ry. Co... V. Ogden 745, V. Wynn Thoron v. The Mississippi Thoroughgood i\ Walker Thoroughgood's Case 583, Thorp I. Keokuk Coal Co t'. Smith v. Stewart r. Thorp Thrall v. Wright Thresher v. Stonington Bank .... Thrupp V. Fielder Thummel v. Holden Thurman v. Wild Thursby v. Plant Thurstan v. Nottingham Perma- nent Benefit Building Soc . . 72, Thurston i\ James 17. Percival Thwaites v. Coulthwaite . . . . 494, Thweatt v. Bank i\ McLeod Tibbetts r. Flanders V. West & South Ry. Co Tice r. Freeman Tichener, Re Tiedemann, Re Tiemeyer r. Turnquist Tier r. Lampson Tiernan v. Roland .\GE. 204 710 50 849 145 335 436 643 857 11 107 725 361 359 174 658 431 529 747 521 501 308 854 141 169 180 604 205 750 607 659 633 588 261 392 170 397 79 334 345 69 855 841 298 74 813 450 500 141 709 786 174 182 280 107 890 lOG 627 PAGE. Tierney v. McGarity 285 Tiffany v. Boatman's Institution. 142 Tiffin Glass Co. v. Stoehr 548 Tift r. Quaker City Bank 226 Tiger v. Lincoln 812 Tighe V. Morrison 171 Tildon t'. Stilson 299 Tileston r. Newell 125 Tilley v. Thomas 627 Tillinghast r. Boothby 468 V. Lumber Co 886 Tillman r. Searcy 460 Tilton r. Alcott 832 Timken Carriage Co. r. Smith... 608 Timlin v. Brown 541 Tingle v. Fisher 281 Tingley v. Bellingham Co 180 Tinken r. Tallmadge 119 Tinker v. Hurst 380 Tinkler v. Swaynie 269 Tinn r. Hoffman 5, 29, .30 Tirrell v. Freeman 378, 380 Tischler v. Kurtz 827 Tisdale v. Bailey 394 Tison V. Howard 302 Titcomb r. United States 10 r. Wood 716 Titus i\ Poole 692 V. Rochester Ins. Co 689 Tobey v. County of Bristol. . 446, 879 i\ Robinson 496 V. Wood 64 Tobin V. Central Vt. Ry. Co 110 Tobv V. Brown 876 Todd v. Grove 737, 745 r. Kentuck}' Land Co 144 17. Leach 344 V. Lee 890 V. McLaughlin 344 r. Meyers 801 i\ Raffertv's Adm 500 V. Railroad Co 88 r. Weber. . 22, 35, 249, 251, 253 Tode V. Gross 468, 409 Toker v. Toker 738 Tolhurst V. Associated Portland Cement Manufacturers .... 223, 594 Tolman r. American Bank 592 Tolmie V. Dean 50, 204 Tomblin v. Cullen 409 Tome V. Railroad Co 701 Tomlin r. Hilyard 174 Tompkins v. Dudley 528 Tomson r. Judge 770 Tone V. Columbus 88 Toner v. Wagner 864 Toof V. Brewer 89.1 Toomer r. Rutland 870 Toomey v. Nichols 879 cxl TABLE OF CASES. PAGE. Topham v. Morecraft 809 Topliff V. Toplitf 573 Toplitz r. Bauer 20G Toppin V. Lomas 822 Tornado, The 53G Torrance v. Bolton 611, 665, 669 Torre v. Torre 643 Torrence t\ Shedd 452 Torrence v. Campbell.. 258, 259, 266 Tottenham v. Emmett 756 r. Green 762, 763, 769 Totterdell v. Fareham Brick Co. . 898 Touche v. Metropolitan Ry. Ware- housing Co 235, 243 Tourville v. Wabash R. Co 876 Towers v. Barrett 334 Towle V. Dresser 67 V. Leavitt . 684 Town V. Rice 292 Towne v. Thompson 673 r. Wiley 84 Towner v. McClelland 2^2 Townsend v. Cowles 689 r. Coxe 503 V. Cowdy 575 r. Felthousen 690 V. Gowey 296 r. Hargraves 782 V. Jemison 780 r. Long 258, 259, 266 V. Minford 178 f. Rackham 249, 250, 252 V. Tyndale 775 r. Vanderwerker 790 To^^^lsend'8 Case 884 ToAvnshend v. Stangroom. . . . 634, 638 Towsley v. Moore 789 Townson v. Moore 735, 744 Tracy v. Keith 87 V. Kerr 877 r. Sackett 750 f. Talmage 486, 503, 504 Trader r. Lowe 69 Traders Bank IK Steere 488 Traders' Nat. Bank v. Parker... 214 Traer v. Clews 456 Trafford r. Hall 295 Traflet V. Empire Life Ins. Co. . . . 877 Traill v. Baring 697, 699, 920 Train v. Gold 35, 193, 495 Train v. Kendall 508 Trainer r. Trumbuli 77, 80 Trainor v. Phoenix Fire Ass. Co. . 448 Trammell v. Ashworth 693 V. Vaughan 361, 365, 547 Transportation Co. v. Dater 54 Tranter r. Hibbard 859, 860 Traphagen's Ex. v. Voorhees.... 193 828 PAGE^ Traub r. Milliken 114 Travelers' Ins. Co. v. Johnson City 11 V. Redfield 344 Travers v. Crane 100 r. Dorr 264 Travis v. Ins. Co 27 Traylor v. Cabannd 180 Treadwell v. State 699 Treat v. Hiles 363 V. Smith 384 r. Stanton 241 Trecy r. Jefts 618 Tremper v. Hemphill 864 Trenery v. Goudie 501, 502 Trentman r. Wahrenberg 469 Trenton Co. v. Clay Co 639 Trenton r. Pothen 108 Treswaller v. Keyne 817 Trevor r. Wood 39, 40^ Trigg V. Read 576 r. Taylor 866 Trigge r. Lavallte 215 Trimble v. Elkin 873 V. Hill 406, 501, 912 r. Reid 682 v. Strother 272, 274 Trimyer v. Pollard 776 Trinkle V. Reeves 335 Tripler v. Campbell 630, 631 Tripp V. Hasceig 640 Trist r. Child 435, 436 Tritt's Adm. r. Colwell's Adm . . . 283 Trotter v. Erwin 775 V. Heckscher 332, 340 r. Hughes 262, 265 V. Strong 383 Troimstine v. Sellers 30, 37 Troup V. Horbach 720 V. Lucas 306 r, Goodman 634 Trovinger v. McBurney 413 Trowbridge v. Wetherbee 174 Troy Fertilizer Co. v. Logan 180 True r. Ranney 98, 509 Trueblood v. Trueblood 06 Trueman V. Loder 106 Truesdell r. Lehman 577 Truett V. Wainwright 861 Trull V. Eastman 459 r. Skinner 630, 849 Trumbull r. Brock 204 r. O'Hara 607 V. Tilton 378 Trumpu r. Trumpu 390 Trundle r. Riley 205 Trust Co. r. Bear Valley Co 48!^ Trustees r. Anderson 275 i: Bennett 52fi TABLE OF CASES. cxli rAcr. Trustees v. Brooklyn Fire Ins. Co. 176 V. Fleming 187 17. Galatian 495 V. Garvey 186 i\ Haskell 187 V. Insurance Co 177 V. Lynch 302 V. McKechnie IGO V. Mulford 161 V. Nelson 187 V. Thacher 306 V. Walrath 633 V. Wheeler 282 Tyron v. Hart 815 Tuck V. Downing 690, 692, 693 Tucker v. Andrews 393 V. Bennett 642 V. Billings 332 V. Linger 316 r. Madden 640 r. Magee 595 r. Moreland 63, 68 V. Ronk 215 V. Vowles 305 f. West 809 V. White 691 Tiiflfree v. Polhemiis 174 Tufts V. Brace 174 V. Larned 640 V. Lawrence 349 V. Weinfeld 349 Tuggles r. Callison 816 Tulane r. Clifton 828 Tulare County Bank i\ Madden. . 261 i:G2 l\ilk v. Moxhay 304 Tullett r. Armstrong 888 Tullis r. Jacson 289, 426 Tunison v. Bradford 217 Tupper V. Cadwell 74, 77, 79 TurnbuU v. Strohecker 776 Turner r. Baker 175 V. Beggarly 295 r. Billagram 854 V. Collins 644, 735, 769 r. Gaither 69, 79 r. Goldsmith 538 r. Green 651 V. Harvey 618 V. Haupt 695 r. Insurance Co 720 V. Kerr 631 V. Lorillard 179 r. Lucas 108 V. McCarty 250 V. Reynall 802 V. Sawyer 390 l\ Turner 815 V. Webster 605, 600 I PAGE. Turnock v. Sartoris 447 ; Turnpike Co. r. McNamara 798 V. State 131 Tuson V. Crosby 827 I Tuthill r. Wilson 110, 116 Tutt r. Hobbs 112 r. Ide 731 V. Thornton 86 1 Tuttle V. Armstead 170 r. Burgett 173 r. Holland 486, 886 V. Railroad Co 135 r. Swett 178 Tuxbury r. Miller 380 Tweddell v. Tweddell 260, 744 Tweddle v. Atkinson 233, 243, 244 Tweeddale i\ Tweeddale. 250, 273, 274 Tweedie Trading Co. v. James P. Macdonald Co 530 Twenty-third St. Church v. Cor- nell 42, 187 Twenty-sixth Ward Bank v. Stea'rns 662 Twistleton v. Griffith 756 Two Sicilies (King of) v. Wilcox. 131 Twopenny v. Young 875 Tyars V. Alsop 770 Tyers v. Rosedale Co 825 Tyler v. Ames 51 V. Carlisle 486, 487 V. Freeman 109 r. Sanborn 387 V. Tyler 395 V. Yates 759, 760 Tyrell v. Painton 734 Tyson v. Doe . . : 346 V. Dorr 812, 814 r. Tyson's Exs 736 U. LTbben v. Binnian 408 Udall V. Metcalf 499 Udell r. Atherton 680 LHiler v. Cowen 532 V. Semple 674 LThrig V. Williamsburg Ins. Co. . . 448 Ullman v. Meyer 178 V. Thomas 786 Ulmer v. Farnsworth 11 V. Ryan 652 ririch r. McCormick 106 Underbill V. Horwood 749 Underwood v. Barber 479 r. Barker 426 ('. Hitchcox 753 i\ Lovelace 841 r. Patrick 780 V. Underwood 212 LTnfried v. Heberer 88 Unger r. Smith 260 cxlii TABLE OF CASES. PAGE. Tngley v. Ungley 707, 790 Union Bank v. Call 812 V. Cook 861 V. Gear}' 214 V. German Ins. Co 688 Union Banking Co. V. Martin's Es- tate 862 Union Ins. Co. r. Berlin 390 V. Central Trust Co.. . . 361, 362 446 Union L. & E. Co. r. Railway Co.. 507 Union Lock Co. r. Townc 13.> Union Mining Co. r. Bank 160 V. Rocky Mountain Nat. Bank 404 Union Mut. L. I. Co. v. Hanford. . 264 269 Union Nat. Bank v. Carr 408 V. Grant 384 V. Roberts 853 Union Pac. Co. v. Anderson 448 v. Artist 624 Union Pacific Ry. Co. v. Baker. . . 877 Union Pac. R. Co. v. Chicago, etc., R. Co v. Metcalf 257, Union Ry. Storage Co. v. McDer- mott 257, 140 268 268 Union Stave Co. r. Smith 496 Union Stove Works v. Caswell . . . 264 Union Strawboard Co. r. Bonfield. 468 United Press v. New York Press Co 49 United States v. Addvstone Pipe Co ' 372 V. American Bonding Co. ... 661 r. Barker 430 r. Behan 337, 550 Buford 278 Charles 612 Cheeseman .'?82 Coffin 736 Dalles Military Road Co. 608 Dietrich 514 Freel 382, 857 Gaussen 383 Gleason 528 Grossmaver 427 Hatch . ! 853 Huckat)oo 72S John Kelso Co 130 Joint Traffic Assoc 468 Knight Co 425 Lvman 875 M'Intvre 384 Mallinckrodt Works 468 National Surety Co 250 Nelson 855 Olnev 406 r. Peck 363, 549, 550 V. Pond 40 V. V. PAGE. United States r. Quigley 427 V. Railroad Co 375 V. Rodgers 509 V. Ryder 443 V. Sauvage 462 V. Simmons 44.^ V. Simons 14 r. Spalding 854 r. Trans-Missouri Assoc. . . . 426 468 i: Union Pac. Ry. Co 469 r. Van Fossen 557 r. Vaughan 285 r. West 845 United States Co. v. Provident Co. 426 United States Fidelitv Co. v. Charles ' 440 United States Glass Co. v. W>st Virginia Flint Co 382, 852 U. S. Mortgage Co. r. Henderson. 215 United States Raisin Co. r. Griffin. 468 Unity Bank. Ex parte 86 Universal Life Assurance Co., Ex parte 289 Universal Stock Exchange r. Stev- ens 408 r. Strachan 408, 502 University v. Hayes 874 Unruh r. Lukens 735 Updegraft r. Edwards 292 L'pdike r. Campbell 487 r. Ten Broeck 176, 789 r. True 199 L'pington r. May 385 Upper San Joaquin Co. r. Roach.. 813 820 Upperton r. Nickolson 629 Upshaw r. Gibson 83 Upton r. Archer 855 r. Englehart 675, 688 69.5 701, 700, 720, 724 r. Jackson 709 r. Tribilcock 576, 589 675 688, 723, 724 I'pton :Mfg. Co. r. Huiske 608 Urmston r. Whitelegg 468 Urquhart r. Brayton 262 r. !Macpherson 715 Usher r. Waddingham 107 Utah Optical Co. v. Keith 532 Utley V. Donaldson 654 Vace Valley Co. r. Mansfield. 580, 855 Vacuum Brake Co. V. Prosser 341 Vail v. Foster 262 V. Reynolds 706 r. Winterstein 892 Valentine r. Bell 200, 204 V. Canali 72 TABLE OF CASES. cxliii PAGE. Valentine r. Fish 275 V. Lunt 768 V. Stewart 441 Vallance v. Blagden 413 Vallandingham v. Johnson 63 Vallens v. Tillman 332 Vallette v. Tedens 390 Valley City Milling Co. r. Prange. 541 Valley Rv. Co. r. Lake Erie Iron Co . . : 579 i Valpey n. Rea 10 1 [ Van Arsdale v. Howard 660 Vanasse r. Reid 453 Van Auken i\ Hornbeck 844, 859 Van Brocklen r. Smeallie 336 i Van Brunt r. Mismer 875 j Vanbrunt r. Singley 585 Van Buren r. Dicrges 551 Vanbuskirk v. Hnrtford Ins. Co.. . 285 Van Buskirk v. Warren 285 Vance v. Anderson 631 V. Lowther 866 I). Railroad Co 130 ; V. Word 82 : Van Cleve v. Berkev 720 j Van Cott V. Van Brunt 720 Vandegrift v. Cowles Engineering i Co 323, 355, 361, 549, 595 Vanderbeck v. Rochester 579 i r. Vanderbeck 844 Vanderbilt r. Schreyer 204, 210 Vanderhaize r. Hugues 630 Vanderheyden v. Mallory 893 Van Deusen v. Sweet 101 Vandiver r. Hodge 775 IJ. Pollak 496 Van Duzor v. Allen 716 Van Dvke v. Wilder 839 Van Eman v. Stanchfield 241 Van Etta v. Evcnson 855 Van Fleet r. Sledge 640 Van Horn r. Hann 99 V. Kitteltas County 445 Van Home i;. Dick 384 V. Watrous , 448 Van Houten v. Morse 677, 681 Van Keuren v. Corkins 282 Vanmeters' Ex. r. Vanmeters. 246, 258 Van Note v. Cook 448 Vannoy v. Patton 402 Van Patten v. Reals 101 Van Pelt r. Corwine 67 Van Riswick r. Goodhue 850 Van Sandt r. Weir 88 Van Santvoord r. Smith 821 Van Schaick v. Railroad Co. 226, 276 Van Shaack r. Robbins 61 Vansickle r. Wells. Fargo & Co. . . 786 Vansittart (;. Vansittart. . 92, 415, 462 Vanvactor r. State 466 Van Vechten v. Smith 691 PAGE. Van Vleck v. Van Vleck 452 Van Voorhis v. Brintnall 397 Van Winkle r. Satterfield 375 Van Wyck v. Allen 653 Varley v. Whipp 654 Varner t;. Carson 750 Varney v. Brewster 878 Vason V. Bell 231 Vass V. Riddick 699 Vassar v. Camp 39, 41 Vassault v. Edwards 181 Vasse V. Smith 82, 83 Vaughan v. Fowler 861 V. Thomas 754 V. Vanderstegen 887 Vaughn v. Herndon 878 V. Marable 400 V. Baker 109 Veacli V. Thompson 727 Veazey v. Allen 430 Veazie v. Williams 684, 701, 722 Veitch V. Russell 801, 803 Venable v. Brown 780 Vent V. Osgood 67 Ventress v. Smith 567 Verdin v. Robertson 604 Vereycken i\ Vandenbrooks . . 206, 728 Vermeule v. Vermeule 809 Vermont Marble Co. v. Smith 699 Vernon v. Keys G89, 691 Ver Planck ik Lee 262 Verrier v. Guillou 776 Very v. Levy 830, 832, 834 Vickers v. Electrozone Commer- cial Co 353, 361 V. Vickers 879 Vider v. Ferguson 341 Viditz V. O'Hagan 65 Viddard r. Cushman 857 Viele r. Hoag 385 V. Railroad Co 753 Vierling v. Bender 547 V. Iroquois Furnace Co.... 312 Vigel V. Gatton 409 Vigers v. Pike .'. 715 V. Sanderson 603 Vigniau v. Ruffins 261 Vilas i\ Downer 802 Viley V. Pettit 199 Villa t\ Rodriguez 630 Villet V. Moler 692 Vinal V. Continental Co 612, 877 Vinar v. Insurance Co 130 Vince, Re 49 Vincent v. Groom 442 V. Vieths 174 V. Watson 245, 259 Vinet V. Bres 261 Viney v. Bignold 448 Viaing v. Bricker 404 cxliv TABLE OF CASES. PAGE. Violett 1-. Mangold 408 Virden v. Murphy 487 Virginia Hot Springs Co. v. Har- rison 47 Virginia Land Co. v. Haupt 675 Visor 1-. Bertrand 200, 444 Msher v. Webster 867 Viter})0 r. Friedlander 531, 534 Vitty r. Eley 14 Voeke v. Peters 452 Vogel V. Melms '. 171 V. Pekoe 49, 197 Vogle V. Pdpper 869, 870 Vogt r. Hecker 528, 538 Voisev, Ex parte 401 Volk v. Stowell 543 Voltz r. National Bank 404 ^'ondal V. Vondal 685 Von Storch v. Griffin 677 Von Trotha v. Bamberger 174 Vorhees r. Combs 204 r. De Mj-er 664 V. Earl 608 V. Reed 210 Voris V. Star, etc., Assoc 170 Vorley r. Cooke 588 Vosburgh v. Teator 175 Vose V. Strong 176 Voss V. Robertson 302 Vosser v. Vosser 217 "^'reeland v. New Jersey Stone Co. 675 680 V. Turner 378 r. Van Blarcom 391 Vroman v. Darrow 827 Vrooman v. Turner.... 250, 256, 265 Vyne v. Glenn 728 \'ynior's Case 357, 878 W. W. V. B 505 W. B. Steel Works v. Atkinson. . 789 \^'. & H. M. Goulding Co. v. Ham- mond _. 30 W. W. .Johnson Co. f.'Triplett. . . 679 Wabash Ry. v. Brow 813 Waberley v. Cockerell 843 Wace r. Allen 312 Wachsmuth v. Bank 130 r. Martini 098, 699 Waddell v. Blockey 714 i\ Lanier 742 Waddington v. Buzby 734 ^^ ade i\ Kalbfleisch 547, 685 r. Pettibone 387 V. Pulsifer 722, 737, 770 V. Ringo 691 Wadhams v. Gay 218 Wadsworth r. Henderson 157 Waeber v. Talbot 652 PAGE. Wager i. Link 261, 202 Wagg V. Gibbons 91 Waggoner v. Millington 867 Waggoner's Est 55 Wagner v. Breed 486 V. National Ins. Co. . . . 283, 5S9 693, 703 Wagoner r. Watts 775 Wahl V. Barnum 215 Wailes r. Cooper .568 Wain r. Bailey 847 V. Warlters 179 Wainwriglit r. Bridges 420 r. Queens County Water Co. 249 254 r. Straw 347 Wait V. Pomeroy 865 Waite V. Barry .\ 880 V. Moreland 93 V. O'Neil 532 Wake V. Harrop 312 Wakefield r. Marvin 285 i\ Newbon 731 Wald V. Arnold 778 Walden r. Skinner 636 Waldo V. Railroad Co 675, 701 Waldoborough r. Railroad Co.... 135 Waldorf v. Simpson 853 Waldy V. Gray 568 Walker v. Armstrong 036 V. Bamburger 28 V. Bank 119, 120 r. Beal 414 V. Brooks 279 ■ V. Brown 201 v. Christian 1 12 • V. Davis 83 ■ r. Ebert 585 V. Farmers' Bank 630 i\ Gregory 411 r. Hill . ' 170 i: Jeffries 487 r. :McKay 286 r. Mayo ' 380 v. Metropolitan Ins. Co.... 170 V. Nevill 833 I". Nicrosi 769 V. Norton 109 r. Palmer 387 V. Parker 728 V. Perkins 412 r. Railway Co 294 V. Smith \ 736 V. Swartwout 112 V. Tucker 530 V. Walker 395, 414, 415 Walker's Exs. v. United States.. 431 489 Walkley r. Clarke 857 Wall V. Arrinnrton 634 TABLE OF CASES. cxlv PAGE. Wall v. County of Monroe 147 r. :\leilke 636, 640, (J8>S v. Mining Co 220 r. Muster's Ex 587 V. Schneider 493 Wall's Appeal 50 Wall's Case 885 Walla Walla Co. v. Ping. . . 855, 867 Wallace v. Chicago, etc., Ry. Co. . 451 589 V. Cravens 798 i\ Gibson 172 (-. Harmstad 847, 849 V. Jewell 854, 862 r. Johnstone 631 v. Lark 486 V. Long 789 v. Morss 83 r. Rappleye 411 r. Stevens 174 V. Tice 854 r. Townsend 42 V. Wallace 744, 869 Wallace's Case 20 Wallace v. Latham 69 Waller v. Shannon 879 V. Staples 654 Waller's Adm. v. Marks 215 Wallerstein v. Ervin 142 Wallis i\ Carpenter 633 V. Day 476, 481 V. Smith 319, 632 Walls V. State 64 Walsh V. Association 469 V. Barton 141, 179, 684 V. Bishop of Lincoln 911 V. Colclough 789 V. Colquitt 385 i\ Dvvight 469 V. Fisher 549 • r. Hun 868 V. Jenvev 337 r. Mayer 780 r. Myers 350, 363, 368 V. St. Louis Exposition. ... 18 Walter v. Everard 79, 80 Walter v. James 843 . V. Victor G. Bloede Co 821 823 Walters v. Bredin 623 I'. Hutchins 878 V, Swallow 384 Walton V. Gaines 63 . V. Horkan 285 V. Jordan 173 i\ Lowrey 173 V. Ruggles 2/0 Walton Plow Co. v. Campbell ... 870 Wampol V. Kountz 791 Wann v. Coe 749 v. Kelly 500 X PAGE. Wannell r. Kem 695 Warburton v. Storr 878 Ward V. Allen 443, 850 r. Bank of New Zealand... 386 r. Cheney 873 V. Cowdrey 269 r. De Oca 265 i\ Dulaney 98 r. Buncombe 281, 284 r. Hackett 858, 862 868, 872 r. Hasbrouck 179 r. Hudson River Bg. Co 528 i\ Insurance Co 132 r. Jack 778 i'. Johnson 144 r. Lumley 848,851 i\ Morrison 281, 285 r. Smith 429 r. Walton 821 V. Ward 394, 395 V. Warren 350 V. Wick 384 r. Yorba 639 Warden v. Railroad Co 389 Warden v. Jones 793, 795 V. Reser 584 Warden Coal Washing Co. v. Meyer 197 Warder v. Fisher 608 Warder Co. i\ Whitish 584 Warder, etc., Co. v. Willyara 870 Wardrop r. Dublin, etc., Co 337 Ware v. Allen 170, 312 . V. Brown 703 r. Curry 775 r. Jones 480 r. McCormack 654 r. Morgan 120, 215 Waring r. Smyth 845, 851 Waring's Case 230 Warlow V. Harrison 17, 18, 20 W^arne v. Routledge 89 1 Warner r. Beers 296 V. Grace 205 r. Landis 584 r. Southern Pac. R. Co 1.30 v. Texas and Pacific Ry. . . . 176 177 V. Willington 52 r. Wilson 550 W^^rnick r. Grosholz 170 Warpole i: Ellison 854, 858 Warren r. Abbett 171, 172 r. Arctic Ice Co 652 r. Batchelder 240, 259, 271 r. Branch 660 V. Buckminster 336 r. Chapman 484 r. Fant 384, 856, 871 r. Farmer 257 cxlvi TABLE OF CASES. PAGE. Warren v. Hewitt 407 r. Hodge 204 V. Layton 869, 873 V. Lyons 382 V. Mayer Mfg. Co. . 821, 822, 823 V. Saxby 802 V. Skinner 211, 813, S.M V. Smith 170 V. Wagner 531 V. Whitney 199 V. Wilder " 2.58 r. Williamson 215, 578 Warrender v. Warrender 415 Warrick i: Smith 634 Warriner r. Rogers 219 Warring r. Williams 857 Warrington r. Early 864 Warters r. Herring 338 Warwick v. Bruce 61, 65 V. Cooper 64, 65 D. Richardson 377 Wasatch Mining Co. v. Crescent Mining Co 648 Washburn r. Dosch 789 r. Fletcher 39 V. Interstate Investment Co. 253 258 Washington v. Ogden 663 Washington Irrigation Co. r. Krutz 436 Wason r. Wareing 580 Wassermann ;;. Sloss 501, 502 Water Commrs. r. Brown 46 Water Valley Mfg. Co. v. Seaman. 675 697 Waterbury v. Andrews 699 Waterhouse i". Jamieson 719 Waterman r. Banks 628 V. Button 634 V. Morgan 249, 252, 273 V. Vose 871 Waters r. Bean 199 17. Reed 735 Watford and Rickmansworth Ry. Co. r. L. & X. W. Ry. Co 447 Watkins r. Baird 730 I'. Brant 745 v. Eames 187 V. Eymill 54 V. Nash 312 Watrous r. Morrison 175 Wat.son, Ex parte 86 V. Allcock 196, 385 V. Atwood 695 V. Billings 82 V. Crandall 699 V. Cross 80 V. Dunlap 199 V. Earl of Charlemont 697 r. Fletcher 500 V. Ford 342 PAGE. Watson r. Jacobs 170 V. Kendall 242 V. Mahan 740 V. Marston 633, 752, 753 V. Mid-Wales Ry. Co 28G r. Murray 500, 507 V. Rickard 120 V. Russell 39, 41 r. Silsby 679 V. Spratley 174 Watson Coal, etc., Co. v. Casteel.. 715 Watteau v. Fenwick 113 Watters v. McGuigan 174, 375 Wattles V. South Omaha Co 531 Watts V. French 204 V. Porter 285 Waugh r. Beck 486, 487 r. Morris 494, 515 Waul r. Kirkman 181 Way V. Dunham 384 V. East 494 r. Hearn 662, 705 V. Langley 378 v. Ryther 690 V. Union Ins. Co 7-'J5 r. Wakefield 347 r. Wright 558 Way's Trusts 739 Wayman v. Jones 261, 264 Waymell v. Reed 432, 433 Waymire r. Jetmore 98 Wayne's Coal Co. v. Morewood. . . 332 Weakly r. Hall 451 Weare v. Goye 110 Weart v. Hoagland's Adm 344, 346 Weatherbee v. Baker 720 f. Potter 173 Weatherford Co. r. Granger 121 Weathersly v. Weathersly 630 W^eayer r.'Bentley 335, .?44 V. Burr . . '. 28 r. Childress 324 V. Harlan 501, 502 V. Shriver 708 Webb, Estate of 218 V. Armstrong 452 V. City Council of Alexan- dria 576 V. Corbin 585 f. Fulchire 499, 503 V. Heme Bay Commission- ers 147, 287, 290 r. Hewitt 384 r. Hoselton 292 r. Hughes 628 r. Jiggs 244, 252 r. Mullins 854 r. Bobbins 301 V. Stephenson 324, 354 V. Whiffin 297 Webber r. Donnelly 486, 886 TABLE OF CASES. cxlvii PAGE. Webber v. Howe 515 V. St. Paul Ry. Co 547 Weber v. Barrett 747 c. Bridgman 106 c. Couch 212 V. Shay 434, 441 Webster r. Cecil 605 c Cook 760 V. De Taste 463 V. Enfield 345 V. Fleming 261, 276 t\ Sanborn 495 17. Zielly 173 Webster's Case 602 Wedg^vood v. Adams 754 Weed V. Beebe 09 r. Black 436 v. Oberreich 383 Weedon v. Waterhouse 543 Weeks v. Currier 682, 701, 713 r. Hill 444 V. Hunt 286 V. Lippencott 437 V. Little 551 V. ]\Iays 547 V. Propert 119 V. Robie 345 V. Weeks 89 Weggner v. Greenstine 448 Wegner v. State 854 Wehrman v. Conklin 726 Weichardt v. Hook 878 Weidman v. S.vmes 867 Weidner v. Hoggett 112 Weil, Re 699 Weill V. American Metal Co 353 Weinreich v. Weinreich 249, 252 269 Weinwick r. Bender 284 Weir V. Barnett 702 V. Bell 700, 702 Weir Plow Co. v. Walmsley. . 382, 871 Weis V. Devlin 528, 538 Weiser v. Welch 729 Weisiger i\ Richmond Machine Co 709 Weitz V. Independent District. ... IH Welch r. Bunce 67 I V. Mandeville 282 V. Miller 878 j v. Sackett 56 Weld V. Lancaster 470 j r. Locke 725 Weldon v. Winslow 95 ' Welford v. Chancellor 387 i Weller's Appeal 584 Wellington v. Apthor 35, 467 ! V. Jackson 443 V. Kelly 445, 453, 842 P.VGE. Wells r. Calnan 536 v. Cook 704 r. Hardy 65, 80 V. Hargrave 778 f. Hartford Co 301 r. Houston 104 ir. Kingston-upon-Hull . 165, 173 i\ McGeoch 501 V. Malbon 93 V. National Life Assoc 550 V. Seixas 09 r. Smith 628 r. Stout 414, 415 v. Thorman 891 r. Wood 709 V. Yates 639 Wellston Coal Co. r. Franklin Paper Co 337 Welnian v. Welman 038 Welsh V. Gossler 340, 342 V. Sage 291 Welz r. Rhodius 176 Wenlock (Baroness) v. River Dee Co 133. 134 Wennall v. Adnev 198, 190 Wentworth i: Day 14, 23 Wentz V. Dehaven 844 V. ]\Ieyersohn 834 Wenzel r. Schultz 585 Werdenbaugh v. Reed 786 Werner v. Padula 5.^1 Wernli v. Collins 342. 528 Wescott r. Waller 211 Wessell V. Glenn 807 West V. Bechtel 332, 340 r. Blakewav 828 r. Camden ". 376, 439 V. Carter 405 V. Holmes 501 V. Houghton 242 V. Mahaney 634 r. IMorse .' 82 r. OHara 170 V. Ravmond 453 r. Reed 630 r. Stanlev 878 V. Steward 845, 848 r. Suda 636 V. W. U. Tel. Co 257 West of England Ins. Co. v. Isaacs 533 West Feliciana R. Co. v. Thornton. 876 West Florida Land Co. r. Stude- baker 701 West London Commercial Bank r. Kitson 122, 689 W. Va. Transp. Co. r. Pip_e Line Co ;. 304, 469 Westbrook r. Eager 173 cxlviii TABLK OF CASES. PAGE. Westbrook r. Harbefon 634 ^^•estcott V. Mitchell 204 Wester v. Bailey 850, 857 \Yesternian v. Evans 108 Western v. Russell 751 I V. Sharp 337 Western Ass. Co. v. Hall 44') ! Western Bank r. National Bank. . 890 Western Bank of Scotland v. Ad- die 701, 703, 714 Western Xews Co. v. Wilmarth.. 130 Western R. Co. r. Stockdale 53 Western Ry. Equipment Co. v. Missouri Iron Co 810 Western Seminary f. Blair 100 [ Western Suburban, etc., Co. v. } Martin 447 , Western Union Co. v. Semmes . . . 550 W. U. Tel. Co. V. A. U. Tel. Co. . 409 v. B. & S. W. Ry. Co 469 482, 483 r. Balto., etc., Tel. Co 469 r. Dubois 254 r. Fenton 254 V. Flint River Co 604 V. Hope 254 V. Jones 254 v. Nat. Tel. Co 469 V. Shotter 604 V. U. P. Ry. Co 392 Western Wagon and Property Co. V. West 280 Westervelt v. Demarest 089 Westlake v. Adams 193 V. St. Louis 731 Westmeath v. Salisbury 414 | 417, 418 1 Westmeath, Marquis of v. Mar- i chioness of Westmeath... 415, 418 i Westmoreland r. Carson 180 v. Porter 810 V. Westmoreland 873 Weston V. Clark 837 1 V. Hunt 127 j V. Metropolitan Asylum Dis- 1 trict 632 V. Mowlin 817 Wetherbee v. Potter 174 Wetmore v. Barrett 408 Wevbrich i". Harris 608 Weygant v. Bartlctt 850 Whalen r. Brennan 470 r. Gordon 608 Whaley i'. Dawson 175 Whallen v. Kauffman 024 Wharton v. Duncan 380 r. Mackenzie 76 V. Stoutenburgh 48, 541 V. Winch 353 PAGE. Whatman r. Gibson 304 Wheadon r. Olds 010 Wheat V. Cross 31, 39, 007 Wheat V. Rice 158, 200, 272 V. Lane 273 Wheatley v. Slade 663 Wheedeii v. Fiske 816 Wheedon v. American Trust Co . . 033 Wheeler v. Dunn 093 V. Harrison 452 r. Klaholt 10 v. McNeil 706, 723 V. Pounds 451 r. Russell 402 r. Single 850 V. Smith 751 V. Spencer 501 V. State 558 r. Stewart 250 Wheeler's Exs. v. Wheeler 459 Wheeler, etc., Co. r. Boyce 130 Wheeling, etc., Co. r. Koontz 717 Wheelock r. Freeman 805 i\ Moulton 125 V. Pacific Gas Co 813 Wheelton v. Hardisty 657, 699 Wheelwright r. Depeyster 567 Whelan v. Ansonia Clock Co 538 r. Cook 104, 430 V. Palmer 312 V. Sullivan 49 V. Whelan 768 Whelen ?:. Osgoodby 640 Wheless r. Bank.. .\ 130 Whelpdale's Case 727 Whiehcote v. Lawrence 388 Whilden v. Bank 25 Whincup V. Hughes 548 Whippen v. Whippen 397 Whipple 17. Barton 736 V. Blackington 778 V. Johnson 775 V. Parker 177 Whitaker v. Eilenberg 839 V. Hawley 531, 532, 533 V. McCormick 052, 653 Whitcher v. State 14 Whitcomb v. Denio 706, 714, 721 r. JoshTi 82 V. Whitcomb 249, 251, 253 V. Whiting 779 Wliite V. Ashton 050 r. Atkins 324 V. Bank 502, 503 V. Beal 708 V. Beard 324 r. Beeton 327 V. Bigelow 792 V. Bluett 203, 820 TABLE OF CASES. cxlix PAGE. White V. Boyce 108 V. Breen 182 V. Buss 399, 487 V. Cannon 841 V. Corlies 32, 34 V. Cuddon 66(3 V. Cuyler 876 V. Damon 7.54 V. Duggan 586 V. East Saginaw 383 V. Equitable Nuptial Benefit Union 465 V. Garden 679, 716 V. Gilleland 501, 502 V. Goldsberg 88 V. Graves 698 v. Gray 830, 832 i: Hart 421 V. Hass 870 V. Hunter 413 r. Kuntz 378, 380 r. Lee 194 r. Life Assoc, of America.. 385 660 v. McGannon 753 V. Madison 119, 120 i\ Mann 543 V. Middlesex R. Co 449 V. Miller 653 V. Mohmeux 531 i: Mt.' Pleasant Mills.. 257, 259 V. Murtland 176, 177 V. New Bedford, etc., Co 68 V. Oakes 652 i\ O'Bannon 794 V. Robinson 654 V. Sawyer 701 V. Solomonskv 170 v. Southend Hotel Co 299 V. Stelloh 607 V. Thielens 258, 259, 266 L\ Thompson 753 V. Walker 827 V. Warren 735 V. Western Assur. Co 375 r. Wheland 787 V. White 431, 645 V. Whitney 383 V. Wiley 281 V. Wilson's Adm 409 V. Yarborough 409 White Co. r. Dakin 853 White Sewing Machine Co. v. Saxon 853, 854, 865, 866 Whitehead r. Anderson 571 V. Burgess 249, 255 V. Kennedy 736, 741 V. Tattersall 877, 878 Whitehill v. Wilson 816 Whiteley v. Edwards 94 PAGE. Whiteley's Case 676, 711 Whitniore v. Cope 175 Whiteside v. Tall 285 Whitesides i: Hunt 400, 409 Whitfield V. Levy 633 r. Riddle 431 Whithed v. J. Walter Thompson Co 503 Whiting r. Daniel 864 V. Dugan 50 Whitlock V. Heard 707 V. Manciet 853 Whitman r. Citizens' Bank 780 V. Ewin 439 r. Merrill 716 Whitmarsh r. Hall 67 V. Walker 173 Wliitmer r. Frye 861, 872 Whitmore r. Nickerson 872 V. San Francisco Sav. Union. 773 Whitnall r. Bigham 786 Whitney r. Am. Ins. Co 256, 267 r. Boardman 653 V. Clary 193 r. Cochran 452 V. Cook 834 r. Dutch 66 r. Hay 467 r. Kirtland 452 r. Railroad Co 301 r. Spencer 557 V. Whitney 415 Whitney Arms Co. r. Barlow. . . . 142 Whitsett V. Clavton 832 Whittaker. Ex parte 679 Whittaker r. Belvidere Co.. ..... .. 263 r. Kershaw 95, 97 Whittemore v. Wentworth 170 r. Whittemore 667 Whitten r. Fitzwater 679 Whittenton Mfg. Co. v. Staples . . 300 301, 302 Whittington v. Wright 83 Whitweil V. Carter 501 Wickes V. Caulk 859, 866 Wickham r. Hyde Park Assoc... 271 v. Winchester 33 Wickiser r. Cook 736 Wicks V. Jklitchell ' . . 889 Widdle r. Lynam 334 Widgerv r. Tepper 89 Widoe r. Webb 483 Wiebler r. Milwaukee Ins. Co 176 Wiedemann v. Walpole 29 Wieland r. Koebick 82 Wier r. Batdorf , 175 Wiessner v. Ayer 824 Wiest V. Garman . . 749 Wigand v. Sichel 707 Wiggin r. Bush 380 cl TABLE OF CASES. PAGE. Wiggin 1-. Tudor 815 i\ Wiggin 253 Wiggins v. Bisso 500 r. Day 71G r. Kcizer 177, 199 Wiggins Ferry Co. v. Railway Co. 299 Wigglesworth v. Dallison 316 Wight V. Railroad Co 695 r. Rindskopf 508 Wightman /;. Wightman 98 Wilbur i\ Hough 389 V. How 470 V. Johnson 172 V. Stoepel 37(5 V. Wilbur 250 Wilby V. Elgee 213, 215, 777 Wilcox r. Arnold 200 v. Bates 631 r. Cline 27, 41 V. Jackson 104 V. Stuart 847 Wild V. Harris 120, 495 V. Howe 383 Wilde V. Fort 3;i4 i\ Gibson 671, 072 Wilder v. Adams 1 94 r. Aldrich 89 V. Beede 701 r. Cowles 108 V. Weakly's Est 101 W'ildes V. Dudlow 171 Wildey v. Bonneys 175 r. Collier 434, 436 Wilding V. Sanderson 573, 645 Wildrick r. Swain 751 W^iley V. Brown 778 V. Christ 850 V. Starbuck 141 Wilfong V. Johnson 335 Wilhelm r. Caylor 774 f. Fimple 335 V. Hardman 178 V. Voss 170 Wilhite V. Wilhite 397 Wilk i\ Key 679 Wilkerson v. Crescent Ins. Co.... 6G0 Wilkes Co. v. Coler ] 47 Wilkie V. Womble 787 Wilkins r. Carter 22 V. Wilkinson 102 Wilkins Mfg. Co. v. H. M. Loud Co 43 Wilkinson i\ Blount 345 r. Clements 326 v. Evans 180 V. Ferree 335 V. Flowers 775 V. Gibson 93 V. Jeffers 2&5 V. Johnson 853 PAGE. Wilkinson v. Loudonsack 516 r. Stitt 405 V. Tousley 501 Willan V. Willan 623 Willard r. Eastham 892 r. Nelson 585 i\ Stone 65 V. Taylor 28 v. Wood 263, 273, 276 r. Worsham 263, 275 Willcox V. Hines 673 Willemin v. Bateson 438, 452 V. Dunn 738 Willes V. Carpenter 46 Willesford r. Watson 446, 447 Willey r. Hodge 643 r. National Paper Co 490 W illiam Bagaley, Tlie 429 Williams, Ex parte 401 Williams, In re 880 Williams r. Balfour 260 V. Bank 430, 550 V. Barklev 624 v. Bayley.... 440, 441, 732, 747 r. Bemis 789 r. Byrnes 26, 179 V. Carle 393 v. Carr 407 r. Carwardine 13, 21 V. Cox 701 V. Crutcher 855 V. Englebrecht 488 Williams (Doe d.) v. Evans. 458, 459 Williams v. Flood 784 V. Fowler 270 r. Gait 56 r. Given 716 r. Glenton 628 V. Hamilton 639 r. Hart 295 r. Hathaway 122 V. Hedley 504 V. Helme 286 V. Hugunin 892 V. Huntington 291 V. Ingersoll 281, 285 V. Insurance Co 130 r. Jensen 193 V Jordan 179 V. King 891 — — V. Lilley 533 r. Lyman 385 V. Mabee 69 V. Merle 565 • V. Moor 6f) r. Morris 565 r. Naftzger 261, 262 r. Nichol 252 ■ r. Noisseux 335 V. North German Ins. Co. . 642 TABLE OF CASES. cli PAGE. Williams v. Oats 397 V. Owen t>31 V. Paine 427 r. Powell 743 r. Protheroe 457 i\ Robbins 110 V. Robinson 180 r. Rogers 170 V. Sapieha 101 i\ Scott 300 i". Spurr 683 i: Urmston 889 r. Vanderbilt 543 i\ Van Tuyl 851 V. Wentworth 90 i: West Chicago Ry. Co 14 Williams, app., Wheeler, resp... 784 Williams v. Williams 728, 744 Williams' Case 686, 696 Williamson v. Baley 486 r. Cline 889, 890 V. Gihon 469 r. ]\Ionroe 300 ■ v. Railroad Co... 437, 721, 724 i\ Raney 098 r. Russell 716 r. Tyson 701 i\ Yager 241 Williamson- Stewart Co. rl. Sea- man 256, 267 Williamsport r. Commonwealth.. 147 Willing i\ Peters 190 Willingale r. Maitland 232 Willis L\ Compress Co 439 r. Henderson G34 r. Hoover 501 i\ Jenkins 914 r. Roberts 89 v. Thorp 913 r. Patteson 430 Willmott i-. Barber 791 Willoughbv r. Lawrence 301 r. :^ioulton 721 Wills V. Carpenter 44 r. Wilson 857, 800 Willson r. Binford 877 V. Love 632 V. Mavor 633 i: Owen 498, 500 Wilmot V. Lyon 07i) Wilmoth r. Hensel 23 Wilson V. Bevans 256 r. Brvant 270 • r. Biiell 876 V. Burke 344 . r. Burr 200 r. Carpenter 097 r. Cline 28 i: Clonbrock Co 106 l\ Cox 664 V. Daniel 393 PAGE. Wilson V. Drumrite 630 V. Ensworth 411 r. Finch-Hatton 673 • r. First Presbyterian Church 249, 255 r. Cxerhardt 299 i: Giddings 631 v. Hart . 301 r. Hayes 856, 873 r. Henderson- 856 r. Hentges 171 r. Hill 659 r. Hundley 704, 706,709 ■ r. Insurance Co 617 r. King 91 r. Lawrence 653 V. Lewiston Mill Co 182 V. Lloyd 227, 384 r. Lunt 256 r. Miller 586 V. Monticello 661 r. Powers 205, 206 . ■- V. Railroad Co 53, 604 r. Randall 610 i\ Rankin 489 r. Rav 176, 504 V. Stilwell . . 269, 270, 274, 283 v. Stump 27 . V. Tibbetts 384 r. Wall 470 r. West Hartlepool Rv. Co. 147 V. Wilson 317, 391, 394 395, 415, 416, 418, 623 Wilson's Appeal 734 Wilson's Cidn. v. Wilson 82 Wilt V. Ogden 549 V. WeMi 84 Wilton V. Chambers 800 v. Eaton 193, 194 Wilton & Co. V. Osborn 764 ■^Vimar v. Overseers 210 Winans v. Huston 833 r. Wilkie 260 Winchester r. Glazier 573 r. Howard 113 V. Newton 332 Winchester Co. v. Veal 406 Windhill Local Board r. Vint ... 440 442 Windle r. Hughes 262 Windram v. French 700 Windsor r. McVeigh -i^O Winfield v. Henning 301 Winfield Bank r. Croco 747 Wingate r. Hamilton 6r>1 V. King 721 Winn r. Albert 704 ;•. Bull 47 /■. Lippincott Investment Co. ?-"7 r. Thomas 378 Winne r. Revnolds 604 clii TABLE 01" CASES. PAGE. AVinncbago Mills v. Travis 22 Winiiinghofr r. Wittinp 259 \\'inni{)isiogee Paper Co. r. New Hampshire Land Co 854 SVinpeniiy v. French 436 Winslow v. Jones 855, 857 Winsor v. German Sec 448 j Winter v. Kansas Citv Ry. Co. . . 812 813 r. Pool 868 \Yintermnte, Exs. of, V. Exs. of Snyder 749 Winterport, etc., Co. v. The Jas- I .per 30 ^ Winters r. Hub Mining Co. . .121, 263 Winward v. Lincoln. 407, 408, 508, 512 Wirebach r. Bank 102 Wise V. Fuller 263, 265, 272 r. Grant 716 | Wiseman r. Beake 757 Wiser c. Lawler 389, 676 | r. Lockwood 68 | Wiswall r. Hall 634 I r. McGowan 628 i r. Plank Road Co 135 j Withee r. Brooks 120 j Withers v. Atkinson 848, 851 | r. Edwards 377 i r. Ewing 210 ' r. Reynolds.. . 325, 328, 330, 330 ; r. Riehardsoii 172 j Withersby v. Sleeper 28 Witherwax r. Riddle 749 Withrow V. Commonwealth 557 Witt r. Corcoran 447 Witters v. Sowles 892 Witty V. Southern Pacific Co ... . 205 Witz r. Fite 875 Wolcott V. Heath 408 V. Mount 653, 654 Wolf V. Goddard 161 V. Marsh 361 r. National Bank 406, 408 V. Schlacks 342, 345 V. Wolf 175 Wolfe V. Howes 548 V. McClure 405 r. :VIatthews 808 Wolferman v. Bell 854, 874 Wolff V. Liverpool Ins. Co 448 V. Pickering 334, 340 Wolford r. Powers 193, 195 Wolke V. Fleming 257 Wollmer r. Lehman 679 Wollums r. Horsley 753 W'olverhampton Banking Co., Ex parte 443 Wolverton r. Davis 171 Wolz V. Parker 204 PAGE. Womack v. Austin 737 V. Loran 434 V. McQuarry £31, 532 Wonderly v. Booth 121, 12-> Wonsettler v. Lee 78!> Wood V. Abrey 749, 751 V. Amory 725 V. Barker 379' r. Boynton 607 V. Calnan 41 V. Cincinnati Co 58.> V. Coman 622 r. Corcoran 170 r. Davis 180 V. DowTies 453, 455, 460 r. Fenwick 61, 74 V. Fleet 175 V. Gamble 877 V. Griffith 664 r. Lake 515 V. McCann 436 r. Manchester, etc., Co 377 r. Mayor 286 V. Moriarty 258, 271, 274 r. Partridge 281 r. Roeder 688 V. Scarth 634 V. Sheldon 654 r. Steele 858, 861, 871 V. Tate 16C V. Terry 88 V. Wood 501 Wood's Appeal 294 Wood's Ex. V. Devers 734 Wood Machine Co. v. Smith 51 W^oodburv v. Allegheny, etc., Co. 856 V. Blair 122 V. Gardner 791 V. Luddy 666 Woodbury, etc., Co. v. Louden- slager 389 Woodcock r. Bostie 259, 260, 263 Wooden v. Perkins 891 Woodfolk V. Blount 753 WoodhuU V. Longstreet 175 Woodman v. Innes 377, 437 Woodruff r. Berry 470 V. Dobbins 832 V. Graddy 607 V. Hinman 483 r. McGehee 112. 115 V. Saul 37S V. Wentworth .... 376, 377, 43J> Woods V. Armstrong 390, 515 V. Elliott 776 r. Evans 50 v. Hall 684 V. Hilderbrand . . . 845, 848, 850 TABLE OF CASES. cliii PAGE. Woods r. Wilder 430 Woodstock Iron Co. l\ Richmond and Dansville Extension Co. . . . 377 389, 437 Woodward r. Aston 84G V. Atwater 880 t\ Barnes 87 V. Griffiths, etc., Co 2.5 V. Roberts 798 r. Smith 197 V. Stearns 402 Woodworth v. Anderson 870 v. Bank of America 864 r. Bennett 498, 500 Wooldridge v. Stern 177 Woolf V. Woolf 85 Woolfe V. Home 109 Woolf oik V. Bank of America . . 864 867 W^ooliscroft V. Norton 301 Woolley V. Gaines 101 Woolsey v. Funke 573 Woonsocket Rubber Co. v. Loe- wenbcrg 717 Wooton r. Hinkle 470 Worcester v. Eaton 488 Worcester Mfg. Co. v. Waterbury Brass Co 607 Woorden v. California Fig Syrup Co 419 Worden v. Houston 834 r. Railroad Co 595 V. Sharp 789 Work r. Beach ,. 52 Workingmen's Bkg. Assn. r. Rau- tenberg 400 Workman v. Campbell 856 v. Wright 443 Works V. Hershev 52 World Pub. Co. v. Hull 346 Worley v. Tuggle 634 W^ormouth r. Hatch 261 Worrall i\ Gheen 868 V. Jacob 415 V. Munn 174 Worrell r. Forsyth 827, 836 Worth v. Case 56, 193 Worthington, Re 440 Worthington v. Beeman 50 V. Cowles 654 v. Curtis 500, 910 V. Gwin 326, 332 r. Insurance Co 428 Worthy v. Jones 176 Wray v. Milestone 829 Wrayton v. Naylor 334 Wright V. Arnold 83, 88 V. Brown 679 PAGE. V. Buck 85(> Cabot 115 Cain 461 Chard 805 Pavenport 60S Evans 878 Fisher 104 Haskell 340 Inshaw 865 Kelley 850, 863 Leonard 87 IMcPike 584 ]\I o n a r c h Investment Building Society 447 — V. ]\Iutual Benefit Assoc. . . . 289 Pipe Line Co 142, 144 Proud 745 Puckett 791 Remington 729 Reusens 550 Rindskopf 440 Snowe 85 Terry 256 Tinsiey 467 Vanderplank. . . 722. 740, 769 Vermont Life Ins. Co... 248 252 Waller 101 Wright 786, 85f> Young 6G(> Wright's Case 675, 698, 711 Wright's Est., Re 50 Wrigley v. Swainson 393 Wrisley Co. r. Iowa Soap Co 419^ Wroten's Assignee v. Armat 404 Wulff V. Jay 3S(> Wulschner v. Ward GOS Wunderlich r. Sadler 262 Wyatt V. Hertford 116 Wyche v. Green 63S. Wyckoff V. Johnson 869 Wycombe Ry. Co. v. Donnington Hospital 572 Wylie V. Gamble 708 V. Missouri. Pac. Ry. Co.. . . 860 Wylson v. Dunn 182 Wyman v. Yoemans 861 Wynn r. Shropshire L'nion, etc., Co 514 Wynne's Case 4,5 Wyrick v. Missouri, etc., Ry. Co. . 495 Wythes v. Labouchere. . . .. . 589, 660 X. Xenos V. Wickham 6, 55, 79c> Y. Yakima Bank r. Knipe 874 Yale I'. Curtiss 10 Wright V. V. r. r. r. V. V. r. v. r. V. V. r. V. cliv TABLE OP CASES. PAGE. Yale V. Dederer 892 r. Edgerton 170 Yale Gas Stove Co. v. Wilcox... 389 676 Yarborough v. Bank of England. . 167 Yard v. Yard 768 Yates, Ex parte 862, 8G.3 Yate.^ V. Robertson 436 Yauger r. Skinner 102 Yazoo, etc., R. Co. v. Fulton 8.34 Yeager r. Musgrave 853 Yeagley c. Webb 585 Yeanians v. James 453 736, 741 Y'early v. Long 253 Y''eaton v. Brown 879 Yeiser i\ United States Board Co 389 Yelland's Case 548 Yellow Poplar Lumber Co. v. Daniel 392 Yenner r. Hammond 633 Yeoman r. Lasley 392, 691 Yeomans r. Chatterton 380 • i\ Williams 795 Yerkes v. Wilson 684 Yerrington i\ Green 543 Yock r. Insurance Co 583 Yocum v. Smith 856, 866 Yonge V. Hooper 736 York v. Hinkle 729 r. Janes 860 Yorke r. Conde 595 Yost r. Dwelling-house Ins. Co. . 449 V. Watertown Steam En- gine Co 864 Y^oule r. Richards 630 Y^oung v. Arintze 721 r. Clark 753 v. Currier 860 r. Frost 753 r. Grote 868 r. Hawkins 256, 262, 271 r. Hopkins 696 r. Hughes 392 r. -Jones 832 f. Kinney 879 PAGE. Young V. Leary 536 r. Lehman 868 • V. Mitchell 431 17. Paul 666 V. Power 816 V. Shriner 295 ■ v. Stevens 102 V. Trainor 388 t\ Ward 867 V. Wright 854 V. Young 218,219 Yoimg & Co. V. Mayor of Leam- ington 167 Young Men's Assoc. t\ Croft.... 265 Y. M. C. A. Gymnasium Co. r. Bank 295 Youngblood v. Birmingham Trust Co 399 Youngs V. Trustees 275 Yundt V. Roberts 484 Z. Zabriskie r. Railroad Co 135 r. Smith 456 Zaleski r. Clark 51 Zalesky r. Home Ins. Co 448 Zang r. Adams 690 Zebley v. Sears 666 Zeigler v. Hughes 736 V. Mize 452 r. Sprenkle 872 Zeis r. Potter 695 Zeph, Re 91 Ziechen v. Smith 354 Zimmer v. Railroad Co 54 V. Sennott 252 r. Settle 414 Zimmerman v. Bitner 733, 745 V. Judah 857 V, Rote 865, 868 Zinc Carbonate Co. v. Bank 130 Zindorf Co. p. Western Co 448 Zoebisch v. Von Minden 199, 215 Zoeller v. Riley 716 Zouch V. Parsons 62 Zuck 17. McCIure 361, 3G7 ^PKINCIPLES OF CONTRACT. [1 CHAPTER I. Agreemext, Proposal, and Acceptance, PAGE. Nature of contract, 1 Definitions, 2 Agreement: nature of consent re- quired, 3 Obligation, 4 Ways of declaring consent, 5 Promise, 6 Contract, 7 Void agreements, 7 Voidable contracts, 8 Rules as to proposal and accept- ance, 9 Express and tacit contracts, and quasi-contracts, 9 Proposals to unascertained persons (contracts by ofifer of reward, &c.), 13 Discussion of cases, 15 Difficulties considered, 19 Theory of floating obligation in- admissible, 21 PAGE. Other kinds of general proposal, 24 Contract by ' indirect communica- tion. 26 Revocation of oflfer, 27 Determination of offer, 29 Communication of revocation, 30 Dickinson v. Dohbs considered, 32 Can there be double acceptance? 33 Communication of acceptance, 35 Contracts by correspondence, 37 Artificial theories on the subject, 38 State of English authority, 39 Effect of death of proposer, 42 Certainty of acceptance, 43 Agreements in terms where con- sent not final, 46 Certainty of terms of agreement, 48 Illusory promises, 49 Construction of tacit acceptances, 52 Promises by deed may bind with- out acceptance, 55 The law of Contract may be described as the endeavour of the State, a more or less imperfect one by the nature of the case, to establish a positive sanction for the expectation of good faith which has grown up in the mutual dealings of men of average right-mindedness. Accoi'dingiy the most popular description of a contract that can be given is also the most exact one, namely that it is a promise or set of promises which the law v\dll enforce. The specific mark of contract is the creation of a right, not to a thing, but to another man's conduct in the future. He who has given the promise is bound to him who accepts it, not merely because he had or expressed a certain intention, but because he so expressed himself as to entitle the other party to rely on his acting in a certain way. This is apt to be obscured in common cases, but is easily seen to be true. Suppose that A. agrees to sell to B. a thing of which not he but C. is the true owner. C. gives the thing to B. Here, though B. has 2:ot the thing he wanted, and [1] 2 AGREEMENT, PROPOSAL, AND ACCEPTANCE. on better terms than he expected, A. has not kept his promise ; and, if the other requisites of a lawful contract were present as between himself and B., he has broken his contract. The primary questions, then, of the law of contract are first, what is a promise? and next, what promises are enforceable? 2] *Thc importance and difficulty of the first of these questions de- pend on the fact that men can justly rely on one another's intentions, and courts of Justice hold them bound to their fulfilment, only when they have been expressed in a manner that would convey to an indif- ferent person, reasonable and reasonably competent in the matter in hand, the sense in which the expression is relied on by the party claiming satisfaction. Judges and juries stand in the place of this supposed indifferent person, and have to be convinced that the deal- ings in the particular case contained or amounted to the promise alleged to have been made and relied upon. Our first business must therefore be to separate and analyse the elements which, generally speaking, must concur in the formation of a contract. A series of statements in the form of definitions, though necessarily imperfect, may help to clear the way. 1. Contract. Every agreement and promise enforceable by law is a contract. 2. Agreement. An agreement is an act in the law whereby two or more persons declare their consent as to any act or thing to be done or forborne by some or one of those persons for the use of the others or other of them (a). 3. Expression of consent. Such declaration may take place by (a) the concurrence of the parties in a spoken or written form of words as expressing their common intention, or (b) an offer made by some or one of them, and accepted by the others or other of them. 4. Promise and offer. The declaration of any party to an agreement, so far as relates to anything to be done or forborne on his part, 3] *is called a promise. The expression of a person's willingness to become, according to the terms expressed, a party to an agreement, is called an offer or proposal. An offer may become a promise by acceptance, but is not a promise unless and until it is accepted (h). (a) This statement has been (h) This does not imply that every adopted by Kekewich J. Foster v. offer is revocable until acceptance. Wheeler (1887) 36 Ch. D. 695, 698, How far that is so is a question not 57 L. J. Ch. 149. of definition but of substantive law. COXSEXT. 3 5. Void agreement. An agreement which has no legal effect is eaid to be void. An agreement which ceases to have legal effect is said to become void or to be discharged. 6. Voidable contracts. An agreement is said to be a voidable contract if it is enforceable by law at the option of one or more of the parties thereto but not at the option of the other or others. We proceed to develop and explain these statements, so far as appears convenient at the outset of the work. 1. Definition of agreement — Nature and scope of consent. The first and most essential element of an agreement is the consent of the parties. There must be the meeting of two minds in one and the same intention. But in order that their consent may make an agreement of which the law can take notice, other conditions must be fulfilled. The agree- ment must be, in our old English phrase, an act in the law : that is, it must be on the face of the matter capable of having legal effect^. It must be concerned with duties and rights which can be dealt with by a court of justice. And it must be the intention of the parties that the matter in hand shall, if necessarj^, be so dealt with, or at least they must not have the contrary intention. An appointment between two friends to go out for a walk or to read a, book together is not an agreement in the legal sense: for it is not meant to produce, nor does it produce, any new legal *duty or right, or any change in [4 existing ones (c).^ Again, there must not only be an act in the law, but an act which determines duties and rights of the parties. A con- " Offer " and " proposal " are synony- not legally bound to have meat and mous terms : " proposal " is often drink ready for B., so that if A. had convenient as allowing " proposer " forgotten his invitation and gone else- to be used as a correlative terra where B. should have a right of ac- rather than the legitimate but clumsy tion ? Only because no legal bond " offeror." Avas intended by the parties. It (c) Nothing but the absence of in- might possibly be said that these are tention seems to prevent a contract really cases of contract, and that only from arising in many cases of this social usage and the trifling amount kind. A. asks B. to dinner and B. of pecuniary interest involved keep accepts. Here is proposal and accept- them out of courts of justice. But ance of something to be done by B. I think Savigny's view, which is here at A.'s request, namely, coming to adopted, is the^ better one. There is A.'s house at the appointed time, and not a contract which it would be the trouble and expense of doing this ridiculous to enforce, but the orig- are ample consideration for A.'s prom- inal propcsal is not the proposal of ise to provide a dinner. Why is A. a contract. 1 If the parties intended by an agreement merely a joke or banter, there will be no contract. Keller v. Holderman, 11 Mich. 248; McClurg v. Terry, 21 N. J. Eq. 225; Theiss r. Weiss, 166 Pa. 9; Bruce v. Bishop, 4.3 Vt. 161; Nyulasy r. Rowan, 17 Vict. L. R. 5. But see Armstrong v. McGhee, Add, (Pa.) 261; Stamper r. Temple, 6 Humph. 113. 4 AGREEMENT, TROPOSAL, AND ACCEPTAXCE. sent or declaration of several persons is not an agreement if it affects only other people's rights, or even if it affects rights or duties of the persons whose consent is expressed without creating any obligation between them. The verdict of a jury or the judgment of a full Court is a concurrent declaration of several persons affecting legal rights; but it is not an agreement, since the rights affected are not those of the judges or jurymen. If a fund is held by the trustees of a will to he paid over to the testator's daughter on her marriage with their consent, and they give their consent to her marrying J. S., this dec- laration of consent affects the duties of the trustees themselves, for it is one of the elements determining their duty to pay over the fund. Still it is not an agreement, for it concerns no duty to be performed by any one of the trustees towards any other of them. There is a common duty to the beneficiary, but no mutual obligation. Obligation. By oljligation we mean the relation that exists between two persons of whom one has a private and peculiar right (that is, not a merely public or official right, or a right incident to ownership or a per- manent family relation) to control the other's actions by calling upon him to do or forbear some particular thing (d). An agreement 5] might *be defined, indeed, as purporting to create an obligation; and the mark which distinguishes an obligation so created from any other kind of obligation is that its contents are wholly determined by the will of the parties (e). But for the purposes of English law we prefer to say (what is in effect the same) that an agreement contem- ],'lates something to lie done or forborne by one or more of the parties for the use of the others or other. The word use (representing the Latin opus through an Anglo-French form oeps, not usus) is familiar in English law-liooks from early times in such a connexion as this. Proof of consent. The common intention of the parties to an agree- ment is a fact, or inference of fact, which, like any other fact, has to be proved, according to the general rules of evidence. When it is said, therefore, that the true intent of the parties must govern the decision of all matters of contract, this means such an intent as a court of justice can take notice of. If A., being a capable person, so bears himself towards B. that a reasonable man in B.'s place would natu- rally understand A. to make a promise, and B. does take x\.'s words or conduct as a promise, no further question can be made about what (d) Savigny, Syst. i. 338-9; Obi. i. pretation, not necessarily a will com- 4, seq. pletely expressed on the face of tlie (e) That is, their will as ascer- transaction, tained by the proper rules of inter- EXPEESSIOX OF CONSENT. 5 was passing in A.'s mind. " Mental acts or acts of the will," it has been well said, " are not the materials out of which promises are made" {f)? Under such circum-stances, as well as in certain other more sj)eeial cases, the law does not allow a party to show that his intention was not in truth such as he made or suffered it to appear. But in the common and regular course of things the consent to which tlie law gives effect is real as well as apparent. 2, Ways of declaring consent — Proposal and acceptance. Two distinct modes of the formation of an agreement are here specified. It is *possible, however, to analyse and define agreement as constituted [6 in every case by the acceptance of a proposal. In fact this is done in the Indian Contract Act. And it is appropriate to most of the con- tracts which occur in daily life, buying and selling, letting and hir- ing, in short all transactions which involve striking a bargain. One party proposes his terms; the other accepts, rejects, or meets them with a counter-proposal : and thus they go on till there is a final re- fusal and breaking off,. or till one of them names terms which the other can accept as they stand. The analysis is presented in a strik- ing form by tlie solemn question and answer of the Eoman Stipulation, where the one party asked (specifying fully the matter to be con- tracted for) : That you will do so and so, do you covenant? and the other answered with the same operative word: I covenant {g). Yet the importance of proposal and acceptance as elements of con- tract has, until of late years, been much more distinctly brought out in the Common Law than by writers on the modern civil law. Is the analysis universally applicable? It seems overstrained to apply this analysis to a case in which the consent of the parties is declared in a set form, as where they both execute a deed or sign a written agreement. Some say that, although there is no proposal or accept- ance in the final transaction, the terms of the document must have (f) Langdell, Summary, § 180. to have a kind of magical efl'ect. But ig) No doubt the formula *Vpo7(f?cs? it was necessary tliat the stipulator spondeo, originally the only binding should hear the promisor's answer. one and almost certainly of religious Cp. Palgrave, Commonwealth of Eng- origin, was in early times supposed land, 2, cxxxvii. cxli. 2 Assent in the sense of the law is a matter of overt acts, not of inward unanimity of motives, design or the interpretation of words. O'Donnell r. Clinton, 145 Mass. 4G1, 463. See also Stoddard v. Ham, 129 Mass. 3S3. and infra, p. *244. Even overt acts, when neither communicated nor done at the request of the other party, are insufficient. Tlierefore cross-proposals by mail, made by each of the proposers in ignorance of the other's act, do not constitute a contract. Tinn r. HolTman, 29 L. T. N. S. 271. See also Madden r. Boston, 177 Mass. 350. C AGREEMEXT, PROPOSAL, AND ACCEPTANCE. boen settled by a process reducible to tbe acceptance of a proposal; but this hardly suffices : for the formal instrument has a force apart from and beyond that of the negotiation which fixed its terms. And it may well be. and sometimes is the case, that the parties intend not to be legally bound to anything until their consent is formally de- 7] clared. In such a case it cannot be said that the proposal and *ac- ceptance constitute the final and legal agreement. Take the com- mon case of a lease. There is generally an enforceable agreement, constituted by letters or memorandum, before the lease is executed. But the lease itself is (besides its effect as a transfer of property) a new contract or series of contracts. In this who is the proposer and who the acceptor? Are we to say that the lessor is the proposer be- cause in the common course he executes the lease before the lessee exe- cutes the counterpart? Or are we to take the covenants severally, and say that in each one the party with whom it is made is the pro- poser, and the party bound is the acceptor? "What, again, if two parties are discussing the terms of a contract and cannot agree, and a third indifferent person suggests terms which they both accept? Shall we say that he who accepts them first thereby proposes them to the other ? And what if they accept at the same moment ? The case of competitors in a race who, by accepting rules laid down by the managing committee, become bound to one another to observe those rules (h), is even stronger. The truth is, as I venture to think, that the exclusive pursuit of the analytical method in dealing with legal conceptions always leads into some strait of this kind, and if the pursuit be obstinate, lands its in sheer fictions. 3. Promise — Effect of deed in making simple promise operative. Except in the case of simultaneous declaration just mentioned, a promise is regularly either the acceptance of an offer or an offer accepted. Where the promise is embodied in a deed, there is an apparent anomaly; for the deed is irrevocable and binding on the promisor from the moment of its execution by him, even before any acceptance by the 8] promisee (i).^ But this *depends on the peculiar nature of a (/i| Clarke v. Earl of Dunraven a proposer as regards every one' who [1897] A. C. 59, 66 L. J. P. 1. Here comes in later. we are driven to say that every party (i) Xeyios v. Wickham (1886) is an acceptor as regards every one L. R. 2 H. L. 296, 32.3 ; Doe d. Gar- Avho has sent in his name earlier, and nons v. Knight (1826) 5 B. & C. 671, •"' Many of the American cases hold acceptance by the promisee or grantee a prerequisite to the validity of a deed. Most of the numerous decisions relate to convevances of land. See Meigs r. Dexter, 172 Mass. 217: Gray's Cases on Property, III. 63.3-735; Devlin on Deeds. § 260. The English case of Xenos r. Wickham is sharply criticised in Holland. Jurisprudence (9th ed.), 265, n. 1. PROMISE. 7 deed in our law. The party who sets his hand and seal to a deed witnessing his promise does not, strictly speaking, thereby create an obligation, but rather declares himself actually bound, under normal conditions. In fact it is only in modern times that special defences, on the ground of fraud and the like, have been allowed to avail a man against his own deed. Thus the questions of consent and ac- ceptance are not open, as ordinary questions of fact, to any discussion. The party has recorded his own promise in solemn form, and cannot require proof that any other positive condition was satisfied. As matter of history, the very object of the Anglo-Xorman writing under seal was to dispense with any other kind of proof, and to substitute the authenticated will of the parties themselves for an appeal to the hazards of oath, ordeal, or judicial combat. It is not that an anoma- lous liability is created; the contracting party is estopped (special and exceptional causes excepted) from disputing that he is liable. Not the promise, but the deed itself, is irrevocable and operative without need of external confirmation. Whether it is convenient, on the whole, for the purposes of modern law to retain the deed with its ancient qualities is a question beyond our present limits (;"). 4. Definition of contract — Restriction of contract to enforceable agree- ments. The term contract is here confined to agreements enforceable by law. This restriction, suggested perhaps by the Eoman distinction between contractus and pactum, is believed to have been first intro- duced in English by the Indian Contract Act. It seems a manifest improvement, and free from the usual drawbacks of innovations in terminolog}^, as it makes the legal meaning of the words more precise without any violent interference with their accustomed use. *5. Void agreements — Void agreement; distinction of void and void- [9 able. The distinction between void and voidable transactions is a fund- amental one, though it is often obscured by carelessness of langiiage. An agreement or other act which is void has from the beginning no legal effect at all, save in so far as any party to it incurs penal conse- quences, as may happen where a special prohibitive law both makes the act void and imposes a penalty. Otherwise no person's rights, whether he be a party or a stranger, are affected. A voidahle act, on the contrary, takes its full and proper legal effect unless and until it is disputed and set aside by some person entitled so to do. 29 R. R. 355, and see Pref. to 29 (/) The old law has been altered in R. R. V — ix. [Roberts v. Securitv various ways in many American Co. [1897] 1 Q. B. 111]. States. 8 agree:mexT;, proposal, and acceptance. The definitions of the Indian Contract Act on this head are simpler in form than those given above: but certain peculiarities of Englisli law prevent iis from adopting the whole of them as they stand. It is not correct as an universal proposition in England that " an agree- ment not enforceable by law is said to be void," for we have agree- ments that cannot be sued upon, and yet are recognized by law for other purposes and have legal etfect in other ways (k). 6. Voidable contracts. The definition here given is from the Indian. Contract Act. The idea is not an easy one to express in terms free from objection. Perhaps it would be better to say that a voidable contract is an agreement such that one of the parties is entitled at his option to treat it as never having been binding on him. The Anglo-Indian definition certainly covers rather more than the ordi- nary use of the terms. Cases occur in English law where, by the effect of peculiar enactments, there is a contract enforceable by one party alone, and yet we should not naturally call it a voidable contract. An example is an agreement required by the Statute of Frauds to be in writing, Avhich has been signed by one party and not by the other. 10] Here the party who has signed is bound and *the other is free. " Voidable contract " seems not exactly the appropriate name for such a state of things. And it may even be said that a contract which has been completely performed on one side is literally " enforceable by law at the option of one of the parties " only. But the definition as it stands cannot practically mislead (/). Consideration. Consideration is sometimes treated as if it were among the necessary elements of an agreement (m). But the con- ception, in the generality with which we use it, combined with its restriction within the limits of exchangeable value of some kind, is peculiar to the Common Law. It does not exist in the jurisprudence of the Continent or of Scotland. In our law we require, for the validity of an informal contract, not merely agreement or deliberate intention, but bargain ; a gratuitous promise is not enforceable unless included in the higher obligation of a deed. The rules as to pro- posal and acceptance cannot be fully understood without bearing this (fc) See Ch. XIIT, below. rathei* than of completed effect. {I) There is a similar but slighter Hence in the fifth definition I have difficulty about the use of the word introduced the word discharged as »n void. A contract when it is fully alternative. performed ceases to have legal effect ; (m) Thus it is defined in the inter- it is discharged, but there is some- pretation clause of the Indian Con- thing harsh in saying that it becomes tract Act. void, a term suggestive of inefficacy EXPKESS OR TACIT PKOPOSAL. 9 in mind; still the requirement of consideration is a condition imposed by positive law and has nothing universal or necessary about it. Hereafter a fuller discussion will be given : for the present it may serve to describe consideration as an act or forbearance, or the promise thereof, which is offered by one party to an agreement, and accepted by the other, as an inducement to that other's act or promise.'* Special rules governing proposal and acceptance. Proposal and accept- ance, though not strictly necessary parts of the general conception of Contract, are in practice the normal and most important elements. When agreement has reached the stage of being embodied in a form of *words adopted by both parties, the contents of the document [11 and the consent of the parties are generally simple and easily proved facts: and the only remaining question (assuming the other require- ments of a valid contract to be satisfied) is what the words mean. The acceptance of a proposal might seem at first sight an equally simple fact. But the complexity of human affairs, the looseness of common speech, the mutability of circumstances and of men's inten- tions, and the exchange of communications between parties at a distance, raise questions which have to be provided for in detail. We may have to consider separately whether the offer of a contract was made ; what the terms of that offer were ; whether there was any acceptance of it; and whether the acceptor was a person to whom the offer was made. Communications in general. Proposal and acceptance — Express or tacit. The proposal or acceptance of an agreement may be communicated by words or by conduct, or partly by the one and partly by the other. In so far as a proposal or acceptance is conveyed by words, it is said to be express. In so far as it is conveyed by conduct, it is said to be tacit. It would be as difficult as it is needless to adduce distinct authority for this statement. Cases are of constant occurrence, and naturally in small matters rather than in great ones, where the proposal, or the ■i There is a distinction between consideration and motive ; the motive for making a promise may be something entirely different from the act, or forbear- ance, or promise thereof, which is offered and accepted in exchange for the promise. " Nothing is consideration that is not regarded as sucli by both parties." Philpot v. Gruninger, 14 Wall. 570, 577: Thomas v. Thomas, 2 Q. B. 859, per Patterson, J.; Fire Ins. Assoc, v. Wickham, 141 U. S. 564, 579; Morris v. Norton, 75 Fed. Rep. 912. 020: Peck Colorado Co. V. Stratton, 95 Fed. Rep. 741. 744: Lew. etc.. Co. r. Kauflman. 114 Fed. Rep. 170, 174; Sterne i\ Bank, 79 Ind. 549. 551; Deveemon v. Shaw, 69 Md. 199; Ellis V. Clark, 110 Mass. 389; cp. Holmes on the Common Law, 293-295. 10 AGREEMENT, PROPOSAL, AND ACCEPTANCE. acceptance, or both, are signified not by words but by acts.^ For example, the passenger who steps into a ferry-boat thereby requests the ferryman to take him over for the usual fare, and the ferryman accepts this proposal by putting off. In the case of obtaining a chattel from an automatic machine (where putting in our coin is the accept- ance of a standing offer made by the owner of the machine) there is no possibility of accepting in words. 12] *Distinction of tacit from fictitious promises. A promise made in this way is often said to be implied : but this tends to obscure the distinc- tion of the real though tacit promise in these cases from the fictitious promise " implied by law," as we shall immediately see, in certain cases where there is no real contract at all, but an obligation quasi ex contractu, and in others where definite duties are annexed by rules of law to special kinds of contracts or to relations arising out of them.^ Sometimes it may be difficult to draw the line. " Where a relation exists between two parties which involves the performance of certain duties by one of them, and the payment of reward to him by the other, tlie laiv will imply [fictitious contract] or the jury may infer [true contract] a promise by each party to do what is to be done by him" (n)."^ It was held in the case cited that an innkeeper promises in this sense to keep his guests' goods safely. The case of a carrier is analogous. So where A. does at B.'s request something not apparently illegal or wrongful, but which in fact exposes A. to an action at the suit of a third person, it seems to be not a proposition (n) Per Cur. Morgan v. Bavei/ (ISGl) G H. & X. 2G5, 30 L. J. Ex. 131. 5 " Whenever circumstances arise in the ordinary business of life in which if two persons were ordinarilj^ lionest and careful the one of them would make a promise to the other it may properly be inferred that both of them under- stood that such a promise was given and accepted." IJx parte Ford, IG Q. B. D. 305, 307. Cases discussins or involvins; the principles of tacit proposal or acceptance are Brogden v. Metropolitan Rwy. Co., 2 App. Ca. 666 ; Titcomb v. United States. 14 Ct. CI. 263: Miller r. 'McManis, .57 111. 126: Hobbs r. Massassoit AVhip Co., 158 :Mass. 194; ^Yheeler v. Klaholt. 178 Mass. 141; Prescott V. Jones, 69 X. H. 145,: Yale r. Curtiss, 151 X^. Y. 598; Royal Ins. Co. r. Beatty, 119 Fa. 6; Indiana Mfg. Co. r. Hayes, 155 Pa. 160; Haines v. Dearborn, 199 Pa. 474; Rutledge r. Greenwood, 2 Desaus. 389; Raysor v. Berkeley Co.. 26 S. C. 610. See also cases in the following notes. c Montgomery r. Water Works, 77 Ala. 248; Bixby v. Moore, 51 X. H. 402; Railway Co. r. Gaffney. 65 Ohio St. 104, 114. 118. "An implied promise does not differ from an express promise, except in the evidence by which it is proved." Chilcott v. Trimble, 13 Barb. 502. An agreement '' is express none the less that it is expressed by conduct and not bv words." Gallagher r. Hathawav, etc.. Corp., 172 Mass. 230, 232. 7Xevada Co. v. Farnsworth, 89 Fed. Rep. 164, 167. TACIT PROMISES. 11 of law, but an inference of fact which a jury may reasonably find, that B. must be taken to have promised to indemnify A. (o). If A. with B.'s knowledge, but without any express request, does work for B. such as people as a rule expect to be paid for, if B. accepts the work or its result, and if there are no special circum- stances to show that A. meant to do the work for nothing or that B. honestly believed that such was his intention, there is no difficulty in inferring a promise by B. to pay what A.'s labour is worth. And this is a pure inference of fact, the question being whether B.'s con- duct has been such that a reasonable man in A.'s position would understand from it that B. meant to treat the work as if done to his express order. The *doing of the work with B.'s knowledge is [13 the proposal of a contract, and B.'s conduct is the acceptance.^ The like inference cannot be made if the work is done without B.'s knowl- edge. For by the hypothesis the doing of the work is not a proposal, not being communicated at the time : B. has no opportunity of ap- proving or countermanding it, and cannot be bound to pay for it when he becomes aware of the facts, although he may have derived some benefit from the work ; it may be impossible to restore or reject that benefit without giving up his own property (p).^ If A. of his (o) Dugdale v. Lorering (1875) L. J. Ex. at p. 332. The effect of a L. R. 10 C. P. lOG, 44 L. J. C. P. subsequent express promise to pay 197. for work already done comes under (p) Cp. dicta of Pollock C. B. 2.5 tlie doctrine of Consideration. 8 See McCollev r. The Brabo, 33 Fed. Rep. 884; Cincinnati R. Co. r, Bensley, 51 Fed. Rep. 738, 742; Travelers' Ins. Co. v. Johnson City, 99 Fed. Rep. G63 ; Goodnow r. Moulton, 51 la. 555, 557; Day r. Caton, 119 Mass. 513; Cooper r. Cooper, 147 Mass. 370; Spencer r. Spencer, 181 Mass. 471; Cicotte v. Church of St. Anne, GO Mich. 552; Holmes r. Board of Trade, 81 Mo. 137; Fogg t". Portsmouth Athenaeum, 44 N. H. 115; Ashlev V. Henahan, 56 Ohio St. 559, 574; Riser v. Holladay, 29 Oreg. 338; 'Hertzog r. Hertzog, 29 Pa. 465; Curry V. Curry, 114 Pa. 367; Gross V. Caldwell, 4 Wash. 670. Services intended to be gratuitous at the time when they are rendered cannot subsequently be used to raise an implied promise to pav for tliem. Osier r. Hobbs, 33 Ark. 215; Allen r. Bryson, 67 la. 591; Collins r. Martin, 43 Kan. 182; Johnson r. Kimball, 172 Mass. 398 ; Potter v. Carpenter, 7G N. Y. 157 ; Taylor v. Lincumfelter, 1 Lea, 83, even though the person rendering them was moved so to do by reason of a state of facts mistakenly supposed to exist. Coleman v. United States, 152 U. S. 96; Jones County v. Norton, 91 la. 680: St. Joseph's Orphan Asylum r. Wolpert. 80 Ky. 80;" Cole r. Clark. 85 Me. 336; Newberry v. Creedon, 146 Mass. 134; Forster V. Green, 111 Mich. 264; Boardman r. ^Yard, 40 Minn. 399; Albany r. McNamara, 117 N. Y. 168. But see contra, Thomas r. Tliomasville Club. 121 N. C. 238. See further Keener on Quasi Contracts, 317 and Be Rhodes. 44 Ch. T). 94 ; Payne's Appeal, 65 Conn. 397 ; Frailev's Adm. r. Thompson. (Kv.) 49 S. W. Rep." 13; Graham r. Stanton, 177 Mass. 321; 8ceva r. True, 53' N. H. 627; Pickett t). Gore, (Tenn. Cli.) 58 S. W. Rep. 402. Cp. Anderson v. Eggers, 61 N. J. Eq. 85. 9 Thompson Mfg. Co. ;•. Hawes, 73 L. T. 369; Mann r. Farnum, 17 Col. 427; Davis r. School District. 24 Me. 349, 351; Ulmer r. Farnsworth, 80 ile. 500; 12 ACiUEEMEXT, PKOPOSAL, AND ACCEPTANCE. own motion sends goods to B. on approval, this is an offer which B. accepts by dealing with the goods as owner. If he does not choose to take them, he is not bound to return them ; nor indeed is he bound to take any active care of them till A. reclaims them (q). Duties quasi ex contractu in English law. But it does not follow that because there is no true contract, there may not be cases falling within. this general description in which it is just and expedient that an obli- gation analogous to contract sliould be imposed upon the person receiv- ing the benefit. In fact there are such cases i^*' and as the forms of our common law did not recognize obligations quasi ex contractu in any distinct manner, these cases were dealt with by the fiction of an implied previous request, which often had to be supplemented (as in the action for money had and received) by an equally fictitious promise. The promise, actual or fictitious, was then supposed to relate back to the fictitious request, so that the transaction which was the real foundation of the matter was treated as forming the considera- tion in a fictitious contract of the regular type. Here, as in many other instances, the law was content to rest in a compromise between 14] the forms of pleading and the convenience *of mankind. These fictions have long ceased to appear on the face of our pleadings, but they have become so established in legal language that it is still neces- sary to understand them (/•). Under Indian Contract Act. The Indian Act provides for matters of this kind more simply in form and more comprehensively in sub- stance than our present law, by a separate chapter, entitled " Of cer- tain Eelations resembling those created by Contract " (ss. 68 — 72, cp. s. 73). The term constructive contract might properly be applied to these obligations ; it would be exactly analogous to " constructive pos- ((/) It is priident, however, to in- {r) For details see notes to Lamp- form the sender that the goods sent leigh v. Brathwait in I Sm, L, C. without request are at his disposal and Oshorne v, Rogers, 1 Wnis. and risk, Saund. 357. O'Conner r. Hurley. 147 Mass. 145: Holmes r. Board of Trade, 81 Mo. 137; Bartiioloniew r. Jackson. 20 Johns. 28 ; Hart V. Norton, I McCord, 22 ; and see Limcr v. Traders Co., 44 W, Va. 175. Contra, is Chase r. Corcoran, 106 Mass. 286: with which cp. Earle r. Coburn, 130 Mass. 596; Skinner r. Tirrell, 150 Mass. 474. 10 See Louisiana v. Mayor, 109 U. S. 285 ; Xevada Co. v. Farnsworth, 89 Fed. Rep. 164; Northern Bank r. Hoopes. 98 Fed. Rep. 935, 938; Sceva i:. True, 53 N. H. 627; People r. Speir. 77 N. Y. 144, 1.50; Columbus. &c., Rv. Co. r. Gaffney, 65 Ohio St. 104, 113: Hertzog v. Hertzog, 29 Pa. 465, 467. Cp. Mil- ford V. Commonwealth, 144 Mass. 64, ACTING UPON REQUEST. 13 session '' and " constructive notice." Eut it has never come into nse. The term Quasi-Contract is now current in America and recog- nized in England. Performance of conditions, &c., as acceptance. A corolhir}^ from the gen- eral principle of tacit acceptance, which in some classes of cases is of considerable importance, is thus expressed by the Indian Contract Act (s. 8) : — '' Performance of the conditions of a proposal, or the ac- ceptance of any consideration for a reciprocal promise which may he offered with a proposal, is an acceptance of the pro- posal.'" " Offers by advertisement. This rule contains the true legal theory of offers of reward made by public advertisement for the procuring of information, the restoration of lost property, and the like. On such offers actions have many times been brought with success by persons who had done the things required as the condition of obtaining the reward. It appears to have been once held that even after performance an offer thus made did not become a binding promise, because " it was not averred nor declared to wdiom the promise was made" (s). But the established modern doctrine is that there is a contract with any person who '-'performs the condition mentioned in the advertise- [15 ment (/). That is, the advertisement is a proposal wdiich is ac- cepted by performance of the conditions. It is an offer to become liable to any person who happens to fulfil the contract of which it is the offer {u)P Until some person has done this, it is a proposal (s) Nov, 11 : 1 Rolle Ab. G M. pi. 1. too CarVtU v. Carholic Smol-e Ball (t) Williams V. Carwardine (183.3) Co. [1803] 1 Q. B. 256, per Lindlev 4 B. & Ad. G21. 38 R. R. 328. L.J. at p. 262. per Bowen L.J. at p. (u) Per Wilies J. Spencer v. Hard- 268, 62 L. J. Ch. 257. ing (1870) L. R. 5 C. P. 563. See 11 As to the distinction between unilateral and bilateral contracts in the matter of acceptance, see post, p. 22, n. 21. 12 The performance of an act, for the doing of which a reward is offered, gives rise to a unilateral contract. The promise of a reward " was but an offer until its terms were complied with. When that was done it thenceforth became a binding contract, which the offerer was bound to perform his share of." Cummings r. Gann, 52 Pa. St. 484, 490. " Until something is done in pursuance of it, it is a mere offer and may be revoked. But if. before it is retracted, one so far complies with it as to perform the labor, for which the reward is stipulated, it is the ordinary case of labor done on request, and becomes a contract to pay the stipulated compensation." 14 AGREEMENT, mOPOSAL, AXD ACCEPTANCE. aiul no more. It ripens into a promise only when its conditions are fully satisfied. As Sir W. Anson has well put it, "■ an offer need not be made to an ascertained person, but no contract can arise until it lias been accepted by an ascertained person" (a;).^^ In the same manner each bidding at a sale by auction is a proposal; and when a particular bid is accepted by the fall of the hammer (but (x) Principles of the English Law or invitation to all men to whose of Contract, p. 39, 9th ed. We have knowledge it conies. The Germans no special term of art for a proposal call it Auslobioig. thus made by way of general request Wentworth v. Day, 3 Met. 352, 354; Furman v. Parke, 21 N. J. L. 310; Gil- more r. Lewis, 12 Ohio, 281 ; Ryer v. Stockwell, 14 Cal. 134; Janvrin r. Exeter, 48 N. H. 83; Alvord v. Smith, 63 Ind. 58, 62; Harson v. Pike, 16 Ind. 140. To entitle one to the reward, he must show that the terms of tlie offer have been complied with. Williams i\ West Chicago Ry. Co., 191 111. 610; Cor- nelson r. Insurance Co., 7 La. Ann. 345; Furman v. Parke, 21 N. J. L. 310; Jones V. Bank, 8 N. Y. 228; Fitch i\ Snedaker, 38 X. Y. 248; Clanton v. Young, 11 Rich. L. 546; Blain v. Pacific Exp. Co., 69 Tex. 74. Cp. Mosley r. Stone, 108 Ky. 492. llie decisions in Symmes r. Frazier, 6 Mass. 344, and Hawk i\ Marion County, 48 la. 472, that where a reward is offered for the recovery of a sum of money lost, the finder of a part is entitled to a pro rata portion of the re- ward offered, cannot, it is believed, be sustained. And see contra, Blain v. Pacific Ex. Co., 69 Tex. 74. Where several persons successively give the information requested by the offer the first one only can recover the reward. Lancaster v. Walsh, 4 M. & W. 16; United States v. Simons, 7 Fed. Rep. 709. As to the rights of parties where the consideration requested has been performed by the combined efforts of several persons, see Janvrin v. Exeter, 48 X. H. 83 ; Whitcher V. State, 68 X. H. 605 ; Fargo V. Arthur, 43 How. Pr. 193. It has been held in several cases that it is not necessary that the person who does the act, for doing which the reward is offered, should have had any knowl- edge of the offer, in order to entitle him to the reward. Gibbons r. Proctor, 64 L. T. X. S. 594; Burke r. Wells Fargo, 50 Cal. 218; Eagle v. Smith, 4 Houst. 293; Dawkins r. Sappington, 26 Ind. 190; Auditor r. Ballard, 9 Bush, 572; Coffey V. Commonwealth (Ky.), 37 S. W. Rep. 575; Russell v. Stewart, 44 Vt. 170. See also Drummond r. United States, 35 Ct. Claims, 356. But this is utterly inconsistent with the idea that the obligation to pay the reward arises out of contract. " Where a contract is proposed to all the world, in the form of a proposition, any party may assent to it, and it is binding, but he cannot assent witliout knowledge of the proposition." Howland V. Lounds, 51 X. Y. 604, 609; Chicago, &c., R. R. Co. v. Sebring, 16 111. App. 181; Ensminger r. Horn, 70 111. App. 605; Williams v. West Chicago St. Ry. Co., 191 111. 610; Lee v. Flemingsburg, 7 Dana. 28 (overruled) ; Ball v. Xewton, 7 Cush. 599 ; Mayor of Hoboken r. Bailey, 36 X. J. L. 490 ; Fitch r. Snedaker, 38 X. Y. 248; Stangler r. Temple. 6 Huriiph. 115. See also City Bank r. Bangs, 2 Edw. Ch. 95 ; Brecknock School District v. Frankheuser, 58 Pa. 380. Tliat the act must be done not only with knowledge of, but with the inten- tion of accepting the offer, see Hewitt v. Anderson, 50 Cal. 476 ; Vitty r. Eley, 51 X. Y. App. Div. 44; infra, p. 21. See further on rewards, 54 Cent. L. J. 184. 13 A covenant "with such person as may be the wife of A, at his decease" to pay her a sum of money is invalid. It does not purport to create a present agreement, nor to be a continuing offer, it is "an attempt to create a covenant to arise wholly in the future Iwtween a defendant and a party who at the time was unascertained, and from whom no consideration was to move." Saunders v. Saunders, 154 Mass. 337. INVITATION OF OFFERS. 15 not before), there is a complete contract with the particular bidder to whom the lot is knocked down (y).^'^ DiflBculties in application. The principle is sufficiently clear, but its application is not wholly free from difficulties. The^^e are partly re- ducible to questions of fact or of interpretation, but partly arise from decisions which appear to give some countenance to a fallacious theory. Distinction between offer and invitation of offers. First, we have to con- sider in particular cases whether some act or announcement of one of the parties is really the proposal of a contract, or only an invita- tion to other persons to make proposals for his consideration (z). This depends on the intention of the parties as collected from their language and the nature of the transaction, and the question is one either of pure fact or of construction. *Evidently it may be [16 an important one, but due weight has not always been given to it. The proposal of a definite service to be done for reward, which is in fact a request (in the sense of the ordinary English law of con- tract) for that particular service, though not addressed to any one individual!}^, is quite different in its nature from a declaration to all whom it may concern that one is willing to do business with them in a particular manner. The person who publishes such an invitation does indeed contemplate that people who choose to act on it will do whatever is necessary to put themselves in a position to avail them- selves of it. But acts so done are merely incidental to the real ob- ject; they are not elements of a contract but preliminaries. It does not seem reasonable to construe such preliminaries into the considera- tion for a contract which the parties had no intention of making. Yet there are some modern decisions which seem to disregard the distinction between mere invitations or declarations of intention and binding contracts (a). We shall now examine these cases. Examination of cases: In Denton v. G. N. BaUicay Co. (h), the facts were shortly these: The plaintiff had come from London to Peter- (y) Payne v. Cave (1789) 3 T. R. rimg zu Antragen as opposed to 148, 1 R. R. 679. Prof. Langdell Anirag. (Summary, § 19) thinks it would (a) Compare the judgments in have been better to hold that every Harris v. Xickerso)i (1873) L. R. 8 bid constitutes "an actual sale, sub- Q. B. 286. 42 L. J. Q. B. 171. ject to the condition that no one else (&) (1856) 5 E. & B. 860, and bet- shall bid higher." ter in 25 L. J. Q. B. 129. where the (z) In German this is Aufforde- case stated is given at length. 14 Sale of Goods Act, § 58 (2) ; Blossom r. Railroad Co.. 3 Wall. 96; Groten- kemper v. Achtermyer, 11 Bush, 222; Head r. Clark. SS Ky. 302, 364: Fisher r. Seltzer, 23 Pa. 308. It is so provided also in the German Biirgerliches Gesetz- bucli, § 156. 16 AGREEMENT, PIvOPOSAL, AND ACCEPTANCE. borough; had done his business there, and wanted to go on to Hull the same night. He had made his arrangements on the faith of the company's current time-tables, and presented himself in due time at the Peterborough station, applied for a ticket to Hull by a train advertised in those tables as running to Hull at 7.20 p.m., and offered to pay the proper fare. The defendant company's clerk refused to issue such a ticket, for the reason that the 7.20 train no longer went to Hull. The fact was that beyond Milford Junction the line to Hull belonged to the Xorth Eastern Eailway Company, who formerly 17] ran a *train corresponding with the Great Northern train, for which the Great Northern Railway Company issued through tickets by arrangement between the two companies. This corresponding train had now been taken off by the N. E. R. Co., but the G. N, E. time-table had not been altered. The plaintiff was unable to go fur- ther than Milford Junction that night, and so missed an appoint- ment at Hull and sustained damage. The cause was removed from a County Court into the Queen's Bench, and the question was whether on the facts as stated in a case for the opinion of the Court the plaintiff could recover (c). It was held by Lord Campbell C.J. and Wightman J. that when anyone offered to take a ticket to any of the places to which the train was advertised to carry passengers the company contracted with him to receive him as a passenger to that place according to the adver- tisement. Lord Campbell treated the statement in the time-table as a conditional promise which on the condition being performed became absolute. This proposition, reduced to exact language, amounts to saying that the time-table is a proposal, or part of a proposal, ad- dressed to all intending passengers and sufficiently accepted by tender of the fare at the station in time for the advertised train. ^^ Cromp- (c) As to the measure of damages, ticket having been taken there was which here was not in dispute, see an unquestionable contract). [See Hamlin v. G. N. R. Co. (1856) 1 H. 36 Cent. L. JI. 390]. & N. 408, 26 L. J. Ex. 20 (where a 15 In Gordon r. Railroad Co., .52 N. H. 506, it was held that the company would not be liable for failure to transport tlie plaintiff (who was the holder of a season ticket over its road) in accordance with its jiublished time-table, if it " had done all that due care and skill could do " to transport him punctually. " Tlie publication of a time-table, in common form, imposes upon a r lilroad company the obligation to use due care and skill to have the trains arrive and depart at the precise moments indicated in the table ; but it does not import an absolute and unconditional engagement for such arrival and de- parture, and does not make the company liable for want of punctuality which is not attributable to their negligence." Cp. Sears r. Railroad Co., 14 Allen, 433. In Crocker r. Railroad Co., 24 Conn. 240. the defendants had established. and given public notice of, a regulation that the fare on their line from N. to (f) (1858-9) 1 E. & E. 295, 23 L. J. Q. B. 18, in Ex. Ch. 1 E. & E. 309, 29 L. J. Q. B. 14. PROMISES BY ADVERTISEMENT. 17 ton J. (d) did not accept this view, nor was it necessary to the actual decision : for the Court had only to say whether on the given facts the plaintiff could succeed in any form of action, and they were unanimously of opinion that there was a good cause of action in tort for a false representation;^® an opinion itself questionable, but not in this place (e). Warlow V. Harrison. In Warlotv v. Harrison (f) a sale by auction was '-'announced as without reserve, the name of the owner not [18 being disclosed. The lot was put up, but in fact bought in by the owner. The plaintiff, who was the highest real bidder, sued the auctioneer as on a contract to complete the sale as the owner's agent. The Court of Queen's Bench held that this was wrong; the Court of Exchequer Chamber affirmed the judgment on the pleadings as they stood, but thought the facts did show another cause of action. Wat- son and Martin BB. and Byles J. considered that the auctioneer con- (d) The fuller report of his judg- ment is that in 5 E. & B. (e) See Pollock on Torts, Gth ed. 290, 518. N. L, would be fifty cents to passengers purchasing tickets before entering their cars, and to others fifty-five cents. Plaintiff took a seat in the train at N., and after it had started, being called upon by the conductor, offered to pay fifty cents, and refused to pay more for his fare from N. to N. L., and was thereupon removed from the train by defendants' servants. An action of tres- pass having been brought by him for having been wrongfully removed from the train, it appeared that plaintiff, on going a reasonable time before the time of departure of the train to defendants' office where tickets were usually sold, found it closed, and was unable then, or afterward at any time before the train left, to procure a ticket, of which facts he informed the conductor when the latter demanded his fare. The regulation of defendants was admitted to be lawful and reasonable. Held: " 1. That as common carriers the defendants were under no legal obligation to furnish tickets, or carry passengers from N. to N. L. for less than fifty-five cents each. 2. That the plaintiff's claim to such a passage for fifty cents rested entirely on the assumed engagement of the defendants to furnish tickets, and the plaintiff's endeavor to procure one, de- feated by the defendants. 3. Tliat said regulation of the defendants was not a contract, creating a legal debt or duty, but a mere proposal, which, might be suspended or withdra\\Ti, by closing the defendants' office, and the retire- ment of their agent tlierefrom. 4. That the proposal being withdrawn, the parties were in the same condition as before it was made ; the defendants con- tinuing common carriers were boTmd to carry the plaintiff for fifty-five cents, but not otherwise. 5. Tliat the plaintiff refusing said sum, the conductor had a right to remove him from the cars, using no unnecessary force for that pur- pose, and that for such removal the defendants were not liable in an action for trespass." Cp. Johnston v. Georgia Co., 108 Ga. 496 ; Railroad Co. r. Dalby, 19 111. 353; Railroad Co. r. South, 43 111. 176; Railway Co. v. Birney, 71 111. 391; Railroad Co. r. Rogers, 28 Ind. 1; 38 Ind. 116; Railroad Co. r. Rinard, 46 Ind. 293; Railroad Co. r. Beckett, 11 Ind. App. 547; Du Larans r. Railroad Co., 15 Minn. 49; Swan r. Railroad Co., 132 Mass. 116; Hanslev r. Railway Co., 117 X. C. 565; Hall v. Railroad Co., 28 S. C. 261; Phettiplace V. Railway Co., 84 Wis. 412. 16Heirn v. IMcCaughan, 32 Miss. 17. 2 Ig AGREEMENT, PROPOSAL, AND ACCEPTANCE. tracted with the highest bona fide bidder that the sale should be without reserve. They said they could not distinguish the case from that of a reward offered by advertisement, or of a statement in a time-table, thus holding in effect (contrary to the general rule as to sales by auction) that where the sale is without reserve the con- tract is completed not by the acceptance of a bidding, but by the bidding itself, subject to the condition that no higher bona fide bidder appears. In other words, every bid is in such a ease not a mere proposal but a conditional acceptance. Willes J. and Bramwell B. preferred to say that the auctioneer by his announcement warranted that he had authority to sell without reserve, and might be sued for a breach of such warranty. The result was that leave was given to the plaintiff to amend and proceed to a new trial, which however was not done (g). Doctrine of Warlow v. Harrison doubted. The opinions expressed by the judges, therefore, are not equivalent to the actual judgment of a Court of Error, and have been in fact regarded with some doubt in a later case where the Court of Queen's Bench decided that at all events an auctioneer whose principal is disclosed by the conditions of sale does not contract personally that the sale shall be without 19] reserve (h). Later, again, the same Court held that when *an auctioneer in good faith advertises a sale of certain goods, he does- not by that advertisement alone enter into any contract or warranty with those who attend the sale that the goods shall be actually sold(t). In an analogous case (h) it was decided that a simple offer of stock in trade for sale by tender does not amount to a contract to sell to the person who makes the highest tender.^" {g) The parties agreed to a stct distinc-t from the contract of sale. processus; see note in the L. J. The pUiintiff failed on another point, report. [See Taylor v. Hassett, 55 N. Y. Supp. (h) Mainprice v. Westley (1865) 988]. 6 B. &. S. 420, 34 L. J. Q. B. 229. (i) Harris v. Nickerson (1873) L.R. But in Johnston v. Boijes [1899] 2 3 Q. B. 286, 42 L. J. B. 171. [See Ch. 73, 68 L. J. Ch. 425, Cozens- Fare v. John, 23 la. 286]. Hardv J. was prepared to hold (k) Spencer v. Harding (1S70) L.'R. on the authority of Warlow v. 5 C. P. 561, 39 L. J. C. P. 332. In Harrison that there is a contract each of these cases we have the unani- by the vendors with the highest nious decision of a strong Court, bidder that he shall be the purchaser, 17 So the lowest bidder for a public contract, in the absence of statute, has no enforceable right. Even where the bid had been accepted by formal vote, but the written contract which was to be executed had not been signed, there was held to be no contract in Edge Moor Bridge Works r. Bristol, 170 Mass. 528. Rte also Weitz i;. Independent District, 79 la. 423; Walsh r. St. Louis Exposi- tion, 16 Mo. App. 502, 90 Mo. 459; Anderson V. Board of Public Schools, 122 Mo. 61; Leskie v. Haseltine, 155 Pa. 98. PROMISES BY ADVERTISEMENT. 19 Difficulties of decisions. The doctrine of these cases, though capable, as we have seen, of being expressed in a manner conformable to the normal analysis of contract, goes to the utmost limit warranted bv sound principle, and is not likely to be extended. If a man adver- tises that he has goods to sell at a certain price, does he contract with any one who comes and offers to buy those goods that until further notice communicated to the intending buyer he will sell them at the advertised price? (Z)^^ Again, does the manager of a theatre contract with every one who comes to the theatre and is ready to pay for a place that the piece announced shall be performed ?^'-^ or do directors or committee-men who summon a meeting contract with all who come that the meeting shall be held? Offers to negotiate, in other words expressions of willingness to consider offers, must not be confounded with offers to be bound (m). Canning v. Farquhar. The distinction tetween the proposal of a con- tract and the mere preliminaries is clearly brought out by a later (I) See per Crompton J. in Denton (m) See per Bowen L.J. Carlill v. V. G. N. E. Co. supra. Carbolic r Lord Herschell, Henthorn v. vinwarranted. by the judgments. See Fraser [1892] 2 Ch. at p. 33. the remarks of James L.J. at p. 472, srMcCauley v. Coe, 150 Til. 311, 319; Coleman r. Applegarth, 68 Md. 21, ace. Cp. Wickham v. Winchester, 75 la. 327 ; Brauer v. Shaw, 168 Mass. 198.' 38 See Ahern r. Baker, 34 Minn. 98. 3 34 AGREEMENT, PROPOSAL, AND ACCEPTANCE. Dickinson v. Dodds (i). The reasons given for that decision cannot, it is submitted, be relied on. It is right to add that Cooke v. OxUy (u) may be so read as to sup- port the opinion tliat a tacit revocation need not be communicated at all. But the apparent inference to this effect is expressly rejected in Stevenson v. McLean (x). If Cooke v. Oxley be still authority for anything, it is not authority for that.'^^ (f) 2 Ch. Div. 463j 45 L. J. Ch. damages, but apparently nothing was 777. Note that the suit was for said about it. specific performance, and cp. Lang- (») (1700) 1 R. R. 783, 3 T. R. dell. Summary. 245-G, and Anson, 653. 33-35. There' was also a claim for {x) (1880) 5 Q. B. D. at p. 351, 49 L. J. Q. B. 701. 39 One of the most troublesome questions in regard to revocation relates to the riglit of an offerer to revoke an oiler to make a unilateral contract after the consideration has been partly performed but before it has been completely performed. On principle it is hard to see why the offerer may not thus revoke his offer. He cannot be said to have already contracted, because by the terms of his offer he was only to be bound if something was done, and it has not as yet been done, though it has been begun, iloreover, it may never be done, for the promisee has made no promise to complete the act and may cease performance at his pleasure. To deny the offerer the right to revoke is, therefore, in effect to hold the promise of one contracting party binding, though the other party is neither bound to perform nor has actually per- formed the requested consideration. The practical hardship of allowing revo- cation under such circumstances is all that can make the decision of the question doubtful. The only reference to the matter in the English books is in Offord r. Davies, 12 C. B. N. S. 748, where in the course of the argument Williams, J., asked: "Suppose I guarantee the price of a carriage to be built for a third party who, before the carriage is finished, and consequently before I am bound to pay for it, becomes insolvent, may I recall my guar- anty?" The counsel replied: "Not after the coach builder has commenced the carriage," and Erie, C. J., added: "Before it rii)ens into a contract, either party may withdraw, and so put an end to the matter. But the moment the coach l)uilder has prepared the materials he would probably be found by the jury to have contracted." A somewhat similar suggestion is made by the Illinois Supreme Court in Plumb r. Campbell. 129 111. 101, 107: Appellant (the offerer) could be bound in three ways: "First by appellee engaging within a reasonable time to perform the contract on his part ; second, by beginning such performance in a way which would bind him to complete it, and third, by actual performance." See also Blumenthal i: Goodall. 89 Cal. 251; Los Aiigeles Traction Co. v. Wilshire, 135 Cal. 654, 658; Society v. Brumfield, 102 Ind. 146. The difficulty with these solutions of the problem is that they fail to take into account the offerer's right to impose such conditions as he chooses in his offer. An offer conditional on the performance of an act does not become a contract by the doing of anything else, such as part performance or giving the offerer a promise to do the act. See White r. Corlies, 46 N. Y. 467. Nor can it be admitted that beginning performance by one to whom an offer of a unilateral contract has been made imports any promise on his part to com- plete the performance. The decision in Biggers r. Owen, 79 Ga. 658, there- fore, seems sound, although the result is harsh. In that case it was held that an offer of reward might be withdrawn, after the plaintiff had nearly com- pleted the performance requested. See also Cook r. Casler, 87 N. Y. App. Div. 8. By express provision of the codes in many European countries, an offer is co:mmuxication. 35 Limits of Acceptance or of its Revocation. Communication of acceptance. There is a material distinction, though it is not fully recognized in the language of our authorities, between the acceptance of an offer wliich asks for a promise, and of an offer which asks for an act, as the condition of the offer becoming a promise."*^ AVhere the acceptance is to consist of a *promise, it [33 must be communicated to the proposer (y). But where the accept- ance is to consist of an act — as despatching goods ordered by post — it seems that no further communication of the acceptance is necessary than the performance of the proposed act, or at any rate the proposer (i/) Mozlexj X. TinlcUr (1835) 1 C. 804, 20 L. J. Ex. 9; Hehh's case M. 't R. 692, 40 R. R. 675-; RusseU v. (1867) L. R. 4 Eq. 9. Thornton (1859) 4 H. & N. 788, 798, irrevocable until the person addressed has had a reasonable time to answer it. See Valery, Contrats par Correspondance, p. 167. In the absence of such legislation the weight of opinion in the civil law is that an offer may be revoked, ihid. There has been much difference of opinion, however, as to the liability of an offerer who revokes his offer for such damage as the person addressed may have incurred by acting in reliance on the oifer. The theory of the offerer's liability was first ehiborated by von Ihering, Jahrbiicher fiir Dogmatik, IV, p. 1 seq., under the heading of culpa in contrahendo. For the varving views of other w^riters, see Windscheid. Lehrbuch des Pandektenrechts, II. § 307, n. 8 (8th ed.) ; Valery, § 185. 40 When the consideration on each side is a promise, the contract is bilateral ; a binding promise, the consideration of which is anything else than a promise, is a unilateral contract; see Langdell, Summary, § 183. In a bilateral con- tract, both parties must be bound at the same time, or neither is bound. In a imilateral contract the offeree is not hound to perform at all, nor until per- formance by him is the offerer bound, but upon performance by the offeree the proposal of the offerer is converted into a binding promise. " Thus if A. promises B. to pay him a sum of money if he will do a particular act, and B. does the act, the promise thereupon becomes binding, although B. at the time of the promise does not engage to do the act;" Train v. Gold, 5 Pick. 380, 385; Matthews f. Fitch, 22 Cal. 86; Perkins r. Hadsell, 50 Til. 216; Plumb V. Campbell, 129 111. 101; Cottage Street Church r. Kendall. 121 Mass. 528, 530; Wellington r. Apthorp, 145 Mass. 69; McMillan v. Ames, 33 Minn. 257; Stensgaard r. Smith, 43 Minn. 11; Barnes r. Perrine, 9 Barb. 202; L'Amoureux r. Gould, 7 N. Y. 349; Todd r. Weber, 95 N. Y. 181, 191-192 r Miller r. McKenzie, 95 N. Y. 575; Beckwith r. Brackett, 97 N. Y. 52; Morse r. Bellows, 7 X. H. 549; Gurin r. Cromartie, II Ired. 174; Stahl v. Van Vleck, 53 Ohio St. 136, 148. The distinction between unilateral and bilateral contracts was fully recog- nized three hundred years ago, but lack of appropriate names caused the im- portance of the distinction to be frequently overlooked. The earliest use of the words bilateral or unilateral in our law seems to have been by Judge Dillon, in Barrett v. Dean, 21 la. 423. Tlie terms were popularised by Pro- fessor Langdell, and are now in common use in the reports. See, e. g., Steven- son V. McLean, 5 Q. B. D. 346, 351; Davis r. Wells, 104 U. S. 159, 166 ; Har- mon V. Adams. 120 U. S. 363, 365: Los Angeles Traction Co. r. Wilshire, 135 Cal. 654. 658; Nowlin r. Pyne, 40 la. 166; Coleman r. Applegarth, 68 :\rd. 21. 25, 27; First Bank r. Wa'tkins. 154 IMass. 385. 3S7 ; Thomas r. Barnes, 156 Mass. 581; McMillan r. Ames, 33 Minn. 257; Stenstraard c. Smith, 43 Minn. 11, 15; Barrow S. S. Co. v. Mexican Cent. Ry. Co., 134 N. Y. 15, 24. 36 AGREEMENT, PROPOSAL. \XD ACCEPTAXCE. mav dispense with express communication, and an intention to dis- pense with it may be somewhat readily inferred from the nature of the transaction (z). Means authorized by proposer. Further, even when the acceptance con- sists of a promise, and therefore must be communicated, any reason- able means of communication prescribed or contemplated by the proposer are deemed sufficient as between the acceptor and himself. Post or telegraph. If an acceptance by means wholly or partly be- yond the sender's control, such as the public post or telegraph (a), is contemplated by the parties, then an acceptance so despatched is com- plete as against the proposer from the time of its despatch out of the sender's control; and, what is more, is effectual notwithstanding any miscarriage or delay in its transmission happening after such despatch. The parties are presumed to contemplate acceptance by post or telegraph whenever the circumstances are such as to make such acceptance reasonable in the usual course of business (5). General rule of communication. It should seem obvious that an un- communicated mental assent, since it is neither the communication of a promise nor an overt act of performance, cannot make a contract in any class of cases; though so lately as 1877 it was found needful to 34] reassert this principle in the House of Lords (c). *At the same time a proposer who prescribes a particular manner of communication may preclude himself from afterwards showing that it was not in fact sufficient. In Lord Blackburn's words, " when an offer is made to another party, and in that offer there is a request express or im- plied that he must signify his acceptance by doing some particular thing, then as soon as he does that thing there is a complete contract." The most important application of this exception will come before us immediately. But it is not true " that a simple acceptance in your own mind, without any intimation to the other party, and expressed (2) Carlill V. Carbolic Smoke Ball (b) Henthorn v. Fraser [1892] 2 Co. [1893] 1 Q. B. 2.56, per Lindley Ch. 27, 61 L. J. Ch. .373. L.J. at pp. 262-3, Bowen L..J. at p. (c) Brogden v. Metropolitan Ry. 269. [See ante, p. 21, n. 21.] Co. (1877) 2 App. Ca. at p. 688 (a) As to the telegraph being on (I^rd Selborne), at p. 691 (Lord the same footing as letter post, Blackburn), and at p. 697 (Lord Coican V. O'Connor (1888) 20 Q. B. Gordon). The judgments in the D. 640, 57 L. J. Q. B. 401, Court below which gave rise to these remarks are not reported. CONTRACTS BY CORRESPONDENCE. 37 by a mere private act, such as putting a letter into a drawer," will, as a rnle, serve to conclude a contract {d)^^ Contracts by correspondence. We now come to the special rules which, after much uncertainty, have been settled by our Courts as to contracts entered into by correspondence between persons at a distance. Before dealing with authorities it may be useful to show the general nature of the difficulties that arise. We start with the principle that the proposer is bound from the date of acceptance. Then we have to con- sider what is for this purpose the date of acceptance, a question of some perplexity, and much vexed in the books. It appears just and expedient, as concerning the accepting party's rights, that the ac- ceptance should date from the time when he has done all he can to accept, b}^ putting his affirmative answer in a determinate course of transmission to the proposer. From that time he must be free to act on the contract as valid, and disregard any revocation that *reaches him afterwards. Hence the conclusion is suggested that [35 at this point the contract is irrevocable and absolute. But are we to hold it absolute for all purposes? Shall the proposer be bound, though, without any default of his own, the acceptance never reach him ? Shall the acceptor remain bound, though he should afterwards despatch a revocation which arrives with or even before the accept- ance? The first question is answered by our Courts in the affirmative; the second is still open. On principle a negative answer to both would seem the more reasonable. The proposer cannot, at all events, act on the contract before the acceptance is commimicated to him ; as against him, therefore, a revocation should be in time if it reaches him to- gether with or before the original acceptance, whatever the relative times of their despatch. On the other hand, it seems not reasonable that he should be bound ])y an acceptance that he never receives. He has no moans of making sure whether or when his proposal has been received (e), or whether it is accepted or not, for the other party {d) As to a different rule formerly company for which the shares are a supposed to have been introduced in necessary qualification, is enough, the case of agreements to take shares This of course is quite in accordance under the Companies Act, 1862, see with general principles. Richards v. Giinn's case (1867) L. E. 3 Ch. 40, Home Assurance Association (1871) 37 L. J. Ch. 40. There need not be L. R. 6 C. P. 5ni, 40 L. J. C. P. 290. formal notice of allotment; acting [See Coflln r. Portland, 43 Fed. Rep. towards the applicant on the footing 411, 413.] that he has got the shares, e. g. ap- (e) It is possible to obtain an pointing him to an office under the official acknowledgment of the due 41 Trounstine v. Sellers. 25 Kan. 447. See :McClure r. Times Pub. Co.. 169 Pa. 213; ante, p. 14, n. 12. 38 AGREEMEXT, PROPOSAL, AND ACCEPTANCE. neod not answer at all. The acceptor might more reasonably be left to take the more avoidable risk of hi? acceptance miscarrying. Theories proposed in English cases. In the judicial treatment of these questions, however, considerations of a different kind have prevailed. It has been assumed that there must be some one moment at which the consent of the parties is to be deemed complete, and the contract absolute as against both of them and for all purposes ; and further, a peculiar character has been attributed to the post-office as' a medium of communication. In some of the cases it is said that the acceptance of a proposal by post completes the contract as soon as the letter is despatched, because the post-office is the common agent of both parties. 36] This may be so as regards the *property in the letter, but the promise expressed by the words written on the paper is not a subject of bailment. But the reason has been put in a different way ; namely, that a man who requests or authorizes an acceptance of his offer to be sent in a particular way must take the risks of the mode of trans- mission which he has authorized, and that in the common course of affairs the sending of a written offer by post amounts to an authority to send the answer in the same manner; and still more lately (f) it has been put on the broader ground that persons who are not in im- mediate neighbourhood contemplate the post-office as the ordinary and reasonable means of communication. But if the proposer of a contract by letter does not really choose the post as a means of com- munication any more than the acceptor, it is not easy to see why the risk of miscarriage should be thrown on him by preference. Revocation arriving before acceptance. ^Much of the language that has been used suggests, though it only suggests, the consequence that even a revocation despatched after the acceptance and arriving before it would be inoperative. If the contract is absolutely bound by posting a letter of acceptance, a telegram revoking it would be too late; and this even if the letter never arrived at all, so that the revocation were the only notice received by the proposer that there ever had been an acceptance. This is a startling consequence at first sight, but the hardship is less than it seems, for a party wishing to reserve his freedom of action as long as possible will still have two ways of doing so : he may make his acceptance in writing expressly subject to revocation by telegraph, delivery of a registered letter; but (f) Unrtliorn v. Fra-'^rr, [1892] 2 this does not prove that the contents Ch. 27, Gl L. J. Ch. 373. have actually' come to the knowledge of the addressee. CONTRACTS BY CORRESPONDENCE. 39 or he may abstain from answering by letter at all, and only telegraph his final decision. Englisli Courts may now be bound to hold that an. unqualified acceptance, once posted, cannot be revoked even by a telegram or special messenger outstripping its arrival. * Earlier cases on contracts by correspondence. Turning to the au- [37 thorities, we need not dwell much on the earlier cases, of which an ac- count is given in the Appendix (g). They established that an accept- ance l)y post, despatched in due time as far as the acceptor is concerned, concludes the contract notwithstanding delay in the despatch by the proposer's fault (as if the offer is misdirected), or accidental delay in the delivery; and that the contract, as against the proposer, dates from the posting, so that he cannot revoke his offer after the accept- ance is despatched.^^ Until 1879 it was uncertain whether a letter of ig) See Note B. For recent Con- fiir biirt-erl. Recht, March, 188fl; tinental ojiinions see Prof. J. Kohler, Valerv, Des Contrats par Correspond- Vertrag nnter Abwesendcn, in Archiv ance, Paris, 1895. 42 The same rule applies in the United States and Canada : Tayloe r. Mer- chants' F. Ins. Co., 9 How. 390; Patrick v. Bowman, 149 U. S. 411; Winter- port, &c., Co. V. The Jasper. 1 Holmes, 99; Re Dodge, 9 Ben. 482; Darlington Iron Co. V. Foote, 16 Fed. Rep. 646; Sea Ins. Co. v. Johnston, 105 Fed. Rep. 286, 291, (C. C. A.) ; Levisohn v. Waganer, 76 Ala. 412; Linn r. McLean, 80 Ala. 360; Kempner r. Cohn, 47 Ark. 519; Levy r. Cohen, 4 Ga. 1; Bryant r. Booze, 55 Ga. 438; Haas v. Myers, 111 111. 421; Chytraus r. Smith, Ul 111. 231, 257; Kentucky Mut. Ins. Co. v. Jenks, 5 Ind. 96; Moore v. Pierson, 6 la. 279; Ferrier c. Storer, 63 la. 484; Siebold v. Davis. 67 la. 560; Hunt r. Higman, 70 la. 406; Gipps Brewing Co. v. De France. 91 la. 108, 112; Chiles r. Nelson, 7 Dana, 281; Bailey v. Hope Ins. Co., 56 Me. 474; Wheat v. Cross, 31 Md. 99; Lungstrass P. German Ins. Co., 48 Mo. 201; Lancaster c. Elliot, 42 Mo. App. 503; Egger V. Nesbitt, 122 Mo. 667, 674; Horton r. New York Life Ins. Co., 151 Mo. 604; Abbott v. Shepard, 48 N. H. 14; Davis r. JEtna Mut. F. I. Co., 67 N. H. 218; Hallock v. Commercial Ins. Co., 26 N. J. L. 268; Commercial Ins. Co. V. Hallock, 27 N. J. L. 645; Northampton, &c., Ins. Co. v. Tuttle, 40 N. J. L. 476; Mactier r. Frith, 6 Wend. 103; Vassar r. Camp, 11 N. Y. 441; Trevor V. Wood, 36 N. Y. 307; Watson r. Russell, 149 N. Y. 388, 391; Hachenv r. Learv, 12 Ore. 40; Hamilton r. Lycoming M. I. Co., 5 Pa. St. 339; McClintock i^South Penn. Oil Co., 146 Pa. 144, 161; Otis r. Payne, 86 Tenn. 663; Blake r. Hamburg-Bremen F. I. Co., 67 Tex. 160; Haarstick r. Fox, 9 Utah, 110; Durkee v. Vermont Central R. R. Co., 29 Vt. 127; Hart- ford Ins. Co. V. Lasher Stocking Co., 66 Vt. 439; Washburn v. Fletcher, 42 Wis. 152 ; McGiverin v. James, 33 U. C. Q. B. 203. The only contrary decision not overruled seems to be ]McCnlloch r. Eagle Ins. Co., 1 Pick. 278. Whetlier this case would now be followed in IMassachusetts may be doubted. See Brauer r. Shaw, 168 Mass. 198; Insurance Co. r. Knabe Co.. 171 Mass. 265. Tlie letter must be properly directed and stamped. Potts r. Whitehead. 5 C. E. Green, 55: Britton r. Phillips, 24 How. Pr. Ill; Blake r. Hamburg-Bremen F. I. Co., 67 Tex. 160. But see Schultz r. Insurance Co., 77 Fed. Rep. 395. In the Transvaal decision of Bal c. Van Staden, 20 S. African L. Jl. 407, it was held that where postal communication was interrupted by war, mailing a letter did not complete the contract. The case of Ex parte Cote, L. R. 9 Ch. 27, seems to indicate that the Eng- lish doctrine is based on the assumption that a letter when mailed is no Icmger 40 AGREEMENT, PROPOSAL, AXD ACCEPTANCE. acceptance that miscarried altogether was binding on the proposer. In that year the point came before the Covirt of Appeal (/;,). An application for shares in the plaintiff company, whose office was in London, was handed by the defendant to a country agent for the com- pany. A letter of allotment, duly addressed to the defendant, was posted from the London office, but never reached him. The company went into liquidation, and the liquidator sued for the amount due on the shares. It was held by Thesiger and Baggallay L. JJ. that " if an offer is made by letter, which expressly or impliedly authorizes the sending of an acceptance of such offer by post, and a letter of accept- ance is posted in due time, a complete contract is made at the time when the letter of acceptance is posted, though there may be delay in its delivery" (i) ; that, on the grounds and reasoning of the authori- ties, this extends to the case of a letter wholly failing to reach its address ; that in the case in hand the defendant must under the cir- cumstances be taken to have authorized the sending by post of a letter of allotment ; and that in the result he was bound. They were dis- 38] posed to limit the rule " to cases in *which, by reason of general usage, or of the relations between the parties to any particular trans- actions, or of the terms in which the offer is made, the acceptance of such offer by a letter through the post is expressly or impliedly au- (h) Household Fire Insurauce Co. (!) Baggallay L.J. 4 Ex. Div. at V. flrnnt (1879) 4 Ex. Div. 21(1. 4S p. 224. L. J. Ex. 577, Finch Sel. Ca. 1.33. Avithin the control of the sender, and that where as in France the sender may reclaim his letter tlie contract sliould not be regarded as completed by the mailing of an acceptance. In the United States, by complying with required formalities, the sender of a letter may regain it. Postal Regulations, §§ .5.31, 533. See also Crown Point Iron Co. r'. .Etna Ins. Co.. 127 N. Y. G08, 019. But in McDonald v. Chemical Nat. Bank, 174 U. S. 610, G20, the Court says: " Nor can it be conceded that except on some extraordinary occasion and on evidence satisfactory to the post-office authorities, a letter once mailed can be withdrawn by the party who mailed it. When letters are placed in a post- office, they are within the legal custody of the officers of the government, and it is the duty of postmasters to deliver them to the parties to whom thev are addressed. United States r. Pond, 2 Curtis, C. C. 265; Buell r. Chapi'n, 99 Mass. 594; Morgan v. Richardson, 13 Allen, 410; Tayloe v. Merchants' Fire Ins. Co., 9 How. 390." In Canterbury r. Sparta, 91 Wis. 53, a letter was mailed in acceptance of an offer, containing a draft payable to the offerer. The sender induced the post-office officials to return the ]etter to him, but the court held him liable to the offerer for the amount of the draft. If the use of the telegraph is authorized expressly or impliedly, the delivery of the acceptance to the telegraph office is held to complete the contract. Minnesota Oil Co. i\ Collier Lead Co., 4 Dill. 431 ; Garretson v. North Atchison Bank, 47 Fed. Rep. 867; Andrews r. Schreiber. 93 Fed. Rep. 369; Haas v. Myers, 111 111. 421, 427; Cobb v. Force, 38 Til. App. 255; Trevor v Wood. 36 N. Y. 307; Perry t: Mt. Hope Iron Co.. 15 R. I. 380. Contra is Beaubien Produce Co. r. Robertson, Rap. Jud. Quebec, 18 C. S. 429. COXTEACTS BY CORRESPOXDEXCE. 41 thorized"(A:). Cases outside these limits, however, are not likely to be frequent; and now, in Ilenthorn v, Fraser (I), it is decided that an offer delivered by hand may authorize, or, in the terms preferred by the Court, contemplate, an acceptance by post (m).'^^ In Grant's case Bramwell L.J. delivered a vigorous dissenting judgment, in which he pointed out among other things the absurdity of treating a revoca- tion which overtakes the acceptance as ineffectual, but relied mainly on the broad ground that a letter not delivered at all is not a com- munication {n). In Henthoni v. Fraser Kay L.J. did not conceal his dissatisfaction with the reasoning of the authorities by which the Court was bound. It may perhaps not be too presumptuous, but it seems useless, to regret that these views could not prevail. It will be seen by reference to the Appendix that the decisions of the Court of Appeal confirm that sense in which a previous decision of the House of Lords was generally understood. The practical conclusion seems to be that every prudent man who makes an offer of any importance by letter should expressly make it conditional on his actual receipt of an acceptance within some definite time. It would be impossible to contend that a man so doing could be bound by an acceptance which either wholly miscarried or arrived later than the specified time (o). * Acceptance does not relate back. "We have seen that in general the [39 contract dates from the acceptance; and though the acceptance be in form an acknowledgment of an existing agreement, yet this will not {k) Baggallay L.J. 4 Ex. Div. at Mich. 402, 411: Greemvich Bank r. p. 228; the same limitation seems De Groot, 7 Hiin, 210; Watson v. admitted bv Thesiger L.J. at p. 218. Russell, 149 X. Y. 388, 391.] (I) [1892] 2 Ch. 27, 61 L. J. Ch. (n) 4 Ex. Div. at p. 234. 373. (o) See per Thesiger L.J. 4 Ex. {m) Delivery to a postman Avho is Div. at p. 223, and per Bramwell not authorized to receive letters for L.J. at p. 238. Held ace. in Massa- the post is not equivalent to posting: chusetts (where, however, the general Re London and XortJiern Bank [1900] doctrine that an accept;ance by post 1 Ch. 220, G9 L. J. Ch. 24. [But In concludes the contract from the date the United States letter carriers are of posting is not received) : Leicis v. authorized to receive letters and con- Broirning (1880) 130 Mass. 173. sequently handing to a carrier is [Dicta to the same effect are in Haas equivalent to postinsr. Pearce v. c. Mvers, 111 111. 421: Vassar V. Langfit, 101 Pa. 507,^511. Deposit- Camp, 11 N. Y. 441, 451. See also ing in a street letter box is, of Haldane r. United States, 00 Fed. course, posting. Wood i\ Calnan, 61 Rep. 819.] 43 Tlie use of the telegraph was held to be impliedly authorized under some- what similar circumstances in Perry v. Mt. Hope Iron Co., 15 R. I. 380. See also Wilcox r. Cline. 70 ]\Iich. 517; but see Scottish Am. Jlortgage Co. v. Davis, (Tex.) 74 S W. Rep. 17. 42 AGREEJIEXT, PKOPOSAL, AXD ACCEPTANCE. make the contract relate back to the date of the proposal, at all events not so as to affect the rights of third persons (p). Death of proposer, a revocation though not known to other party. There i>; believed to be one positive exception in our law to the rule chat the revocation of a proposal takes effect only when it is communicated to the other party. This exception is in the case of the proposer dying before the proposal is accepted. This event is in itself a revocation, as it makes the proposed agreement impossible by removing one of the persons whose consent would make it (q).'^* There is no distinct authority to show whether notice to the other party is material or not;"*'^ but in the analogous case of agency the death of the principal in our law. though not in Eoman law, puts an end ipso facto to the agent's authority, without regard to the time when it becomes known either to the agent or to third parties (/•). It would probably be impossible not to follow the analogy of this doctrine. The Indian Contract Act makes the knowledge of the other party before acceptance a condition of the proposal being revoked by the proposer's death. Insanity no revocation. As for insanity, which is treated in the same way by the Indian Act, that would not in general operate as a revocation by the law of England,*^ for we shall see that the contract of a lunatic (not so found by inquisition) is only voidable even if his state of mind is known to the other party. But it has been said that " if a ip) FeUhousex. Bindley (18G2) 11 C. 167, 32 R. R. G20 ; Campaiinri v. C. B. X. S. 8G9, 31 L. J. C. P. 204. Woodbiirn (1854) 15 C. B. 400, 24 iq) Per Mellish L.J. in Dickinson L. J. C. P. 13, 2 Kent Comm. 646, D. V. Dodds (1876) 2 Ch. Div. at p. 475, 46, 3, de solut. et liberal. 32. The 45 L. J. Ch. 777. Indian Contract Act. s. 208, illust. (r) Blades v. Free (1829) 9 B. & (c), adopts the Roman rule. 44 The Palo Alto, 2 Ware, 343, 359; Paine v. Insurance Co., 51 Fed. Rep. 689; Grand Lodge v. Farnham, 70 Cal. 158; Pratt r. Baptist Soc, 93 111. 475; Beach v. First Church, 96 111. 179; Aitken v. Lang's Adni., 106 Kv. 652; Tuentv-third St. Church v. Cornell. 117 X. Y. 601; ^Yallace r. Townsend, 43 Ohio St. 537; Phipps v. Jones, 20 Pa. 260; Helfenstein's Est., 77 Pa. 328; Foust v. Board of Publication, 8 Lea, 555. See also .Jordan v. Dobbins. 122 Mass. 168; Browne r. McDonald, 129 Mass. 66. This rule is tlie same in the civil law. Valery, Contrats par Correspondance, § 204 ; Windscheid, Pandek- tenrecht. § 307 (2). The Biirgerliches Ciesetzbucli. liowever, has changed the rule in Germany. It provides. § 153, " A contract is not prevented from com- ing into existence by the death or incapacity of the offerer before acceptance, unless the offerer has expressed a contrary intention." 45 Held immaterial in Wallace v. Townsend, 43 Ohio St. 537. 4'; Tliat insanity of the proposer before acceptance will operate as a revoca- tion of the offer, see Beach v. First Church, 96 111. 177; The Palo Alto, Davies, 343. CERTAINTY OF ACCEPTANCE. 4o man l)ecomes so far *insane as to have no mind, perhaps he ought [40 to be deemed dead for the purpose of contracting" (s). Certa'mtij of Acceptance. Acceptance must be unqualified. The next rule is in principle an ex- ceedingly simple one. It is that " In order to convert a proposal into a promise the acceptance must he absolute and unqualified " {t)^' For unless and until there is such an acceptance on the one part of terms proposed on the other part, there is no expression of one and the same common intention of the parties, but at most expressions of the more or less different intentions of each party separately — in other words, proposals and counter-proposals. Simple and obvious as the rule is in itself, the application to a given set of facts is not always obvious, inasmuch as contracting parties often use loose and inexact language, even when their communications are in writing and on important matters. It will be seen that the question whether the language used on a particular occasion does or does not amount to an acceptance is wholly a question of construction, and generally though not necessarily the construction of a written instrument. The cases in which such questions have been decided are numerous («)• and we (s) Bramwell L.J. Drcio v. 'Sunn {t) Indian Contract Act, s. 7, (1879) 4 Q. B. Div. at p. GGfl, 48 sub-s. 1. L. J. Q. B. 501. [See Dexter v. Hall, (u) For collected authorities, see 15 Wall, 9, 20.] (inter alia) Fry on Specific Perform- ance, c. 2. 47 Eliason v. Henshaw, 4 Wheat. 225, 228 ; Deshon r. Fosdick, 1 Woods, 286; ilerriam r. Lapsley, 2 McCrary, 60G; Martin v. Northwestern Fuel Co., 22 Fed. Rep. 590; Hamldet V. Insurance Co., 36 Fed. Rep. 118; Robin- son V. Weller, 81 Ga. 704; Sawyer v. Brossart, 67 la. 678; Gilbert r. Baxter, 71 la. 327; Plant Seed Co. r. Hall. 14 Kan. 553; Seymour v. Armstrons:. 62 Kan. 720: Hutclieson v. Blakeman, 3 Met. (Ky.) 80; Barrow r. Ker, 10 La. Ann. 120: Jenness r. Mt. Hope Iron Co., 53 Me. 20; Harlow v. Curtis, 121 Ma.ss. 320 ; Johnson r. Stephenson, 20 Midi. 63 : Eggleston r. Wagner. 40 ]Mich. CIO; Wilkins Mfg. Co. r. H. M. Loud Co., 94 Mich. 158; Bruner v. Wheaton, 40 Mo. 3G3: Falls Wire Mfg. Co. v. Broderick, 12 Mo. App. 378; Egger v. Xesbitt, 122 Mo. 007: Potts r. Whitehead. 23 N. J. Eq. 512: Hough V. Brown, 19 N. Y. 111. 115: M'Cotter r. Mavor, 37 N. Y. 325; Schenectady"^ Stove Co. r. Holbrook. 101 X. Y. 45: Barrow S.'s. Co. r. Mexican Central Co.,*134 N. Y. 15: X. W. Iron Co. r. Meade. 21 Wis. 474; Baker r. Holt, 50 Wis. 100; Clark r. Burr, 85 Wis. 040. "Acceptance upon terms varving from those offered is a re- jection of the offer," Bank /•. Hall, 101 V. S. 43, 50: Baker r. Johnson Co.. 37 la. ISO. 180; Cartmell r. Xewton. 79 Ind. 1, 8. It is in effect a counter offer and as such terminntes the oriTinal oft'er. See ante, p. 30. Where parties are dealing ornlly face to face, if the acceptance varies from the offer, a jviry may infer the offerer's assent to the variation from his silence. Earle v. Angell, 157 Mass. 294. 44 AGREEMENT, PROPOSAL, AND ACCEPTANCE. shall here give by way of illustration only a selection of modern ones (.r). In Honeyman v. Marryat (y) , before the House of Lords, a proposal for a sale was accepted " subject to the terms of a contract being arranged " be- 41] tween the vendor's and purchaser's solicitors: this was clearly no *contract. Compare with this Hussey v. Home-Payne (z) , from which it seems that an acceptance of an offer to sell land "' subject to the title being approved by our solicitors '' is not a qualified or conditional acceptance, but means only that the title must be investigated in the usual way; in other words, it expresses the conditions annexed by law to contracts of this class, that a good title shall be shoAvn by the vendor. In Appleby v. Johnson (a), the plaintiff wrote to the defendant, a calico- printer, and offered his services as salesman on certain terms, among which was this: "a list of the merchants to be regularly called on by me to be made." The defendant wrote in answer: "Yours of yesterday embodies the substance of our conversation and terms. If we can define some of the terms a little clearer, it might prevent mistakes ; but I think we are quite agreed on all. We shall tlierefore expect you on Monday. (Signed) — J. Appleby. — P.S. — I have made a list of customers which we can consider to- gether." It was held that on the whole, and especially having regard to the postscript, which left an important term open to discussion, thei'e was no complete contract. In Crossley v. Maycock (&), an offer to buy certain land was accepted, but Avith reference to special conditions of sale not before known to fhe intending purchaser. Held only a conditional acceptance. In Lloyd v. Noicell (c) , an agreement "subject to the preparation by my solicitor and completion of a formal contract" was held (1) to exclude the formation of a binding agreement; (2) not to be a condition which the vendor could waive as being only for his benefit. But in North v. Pcrcival id), the words "heads of agreement . . . subject to approval of condi- tions and form of agreement by purchaser's solicitor " were held by Kekewich J. consistent with a complete contract. In Filhy v. HounseU, [1896] 2 Ch. 737, G.5 L. J. Ch. 852, an acceptance by a purchaser " subject to contract as agreed." i.e. a form set out on the vendor's own conditions of sale, was held without difficulty to be absolute. In Stanley v. Dowdeswell (e), an answer in this form: "I have decided or taking No. 22, Belgrave Road, and have spoken to my agent, Mr. C, who will arrange matters with you," was held insufficient to make a contract, as not being complete and imqualified, assuming (which was doubtful) that the letter of which it was part did otherwise sufficiently refer to the terms of the proposal. 42] ''In AddineU's case {f) and Jaclcson v. Turquand (y), a bank issued a cir- [x) Cp. also the French case in the (?>) (1874) L. R. 18 Eq. 180, 43 Court of Cassation given in Lang- L. J. Ch. 379, followed in Jones v. dell's Select Cases on Contract, 15.5. Daniel [1894] 2 Ch. 332, 63 L. J. Ch. (ij) (1857) 6 H. L. C. 112, 26 L.J. 562. Ch. 619, by Lord Wensleydale. The ic) [1895] 2 Ch. 744, 64 L. J. Ch. case was not argued, no one appear- 744. ing for the appellant. id) [1898] 2 Ch. 128, 67 L. J. Ch. (z) (1879) 4 App. Ca. 311. 322, 48 321. L. J. Ch. 846. [See also James v. (e) (1874) L. R. 10 C. P. 102. Darbv, 100 Fed. Rep. 224 (C. C. A.) ; Compare Smith v. Webster (1876) 3 Pacific Rolling Mill Co. r. Railway Ch. Div. 49, 45 L. J. Ch. 528. [Hack- Co., 90 Cal. 627; Corcoran v. White, lev r. Ockford, 98 Fed. Rep. 781; 117 111. 118.] Wills r. Carpenter, 62 Mich. 50.] (a) (1874) L. R. 9 C. P. 158. 43 {f) (1865) L. R. 1 Eq. 225. L. J. C. P. 146. [See also BoAven r. (^7) (1869) L. R. 4 H. L. 305, 39 Hart, 101 Fed. Rep. 376; Krum r. L. j. Cli. 11. Chamberlain, 57 Neb. 220.] CERTAINTY OP ACCEPTANCE. 45 cular offering new shares to existing shareholders in proportion to their interests, and also asking them to say if in the event of any shares remaining they should wish to have any more. Certain shareholders wrote in answer, accepting their proportion of shares, and also desiring to have a certain num- ber of additional shares, if they could, on the terms stated in the circular. In reply to this the directors sent them notices that the additional shares had been allotted to them, and the amount must be paid to the bank by a day nan;ed, or the shares would be forfeited. It was held by Kindersley V.-C. and confirmed by the House of Lords, that as to the first or proportional set of shares the sharoliolder's letter was an acceptance constituting a contract, but as to the extra shares it was only a proposal ; and that as the directors' answers introduced a material new term (as to forfeiture of the shares if not paid for within a certain time), there was no binding contract as to those. In Wynne's case (h) two companies agreed to amalgamate. The agreement was engrossed in two parts, and contained a covenant by the purchasing company to pay the debts of the other. But the purchasing company (which was unlimited) before executing its own part inserted a proviso limiting the liability of its members under this coA-enant to the amount unpaid on their shares. This being a material new term, the variance between the two parts as executed made the agreement void. In this, and later in Beck's case {i), in the same winding-up, a shareholder in the absorbed company applied for shares in the purcliasing co;npany credited with a certain sum according to the agreement, and received in answer a letter allotting him shares to be credited with a "proportionate amount of the net assets" of his former company. It was held that, apart from the question whether the allotment was conditional on the amalgamation being valid, there was no contract to take the shares. A. leiCgraphs to B. : '"Will you sell us Whiteacre? Telegraph lowest cash price, answer paid." B. telegraphs in reply: "Lowest price for Whiteacre, 900?." This" has been held not to amount to an offer to sell, so that a tele- gram from A. purporting to agree to the purcliase at 900/. is itself only an ofTer (/.•). Where a seller undertook to accept the highest net money tender made by either of two competitors for the purchase, and one of tjiem offered such sum as would exceed by 200/. the sum (unknown) which might be offered by the other: this was held no acceptance of the seller's terms, and incapable of con- stituting a contract (/). Instances of sufficient acceptance. On the other hand, the following in- stances will show that the rule ''^niust be cau'dously applied. An accept- [43 ance may be complete though it expresses dissatisfaction at some of the terms, if the dissatisfaction stops short of dissent, so that tlie whole thing may be described as a "grumbling assent" (m). Again, an acceptance is of course not made conditional by adding words thai: in truth make no difference; as where the addition is simply immaterial (to)4S, or a mere formal memorandum is enclosed for signature, but not {h) (1873) L. R. 8 Ch. 1002. (m) Joyce v. Hicann (1SG4) 17 (i) (1874) L. R. 9 Ch. 392, 43 C. B. N. S. 84: cp. per Lord St. L. J. Ch. 531. Leonards, G H. L. C. 277-8 (in a dis- (Ic) Harvey \. Facei/ {J. C.) [1893] senting iud2;ment). A, C. 552, 62 L. J. P.'C. 127. {ni Clive v. Beaumont (1847) 1 (/) ^outh Hetton Coal Co. v. Has- De C4. & S. 397. ire//, dc Coal Co. [1898] 1 Ch. 465, 67 L. J. Ch. 238, C. A. 4SSee McFadden r. Henderson, 128 Ala. 221; Phillips r. Moor, 71 Me. 78; De Jonge r. Hunt, 103 Mich. 94; King v. Dahl. 82 Minn. 240; Bruner r. Wheaton, 40 Mo. 303; Egger r. Nesbitt, 122 Mo. 067: Clark r. Dales. 20 Barb. 42: Brisban r. Boyd, 4 Paige, 17; Fitzhugh v. Jones, :\Iunf. 83; Matteson V. Scofield, 27 Wis. 671. 4Q AGREEMENT, rROPOSAL, AND ACCEPTANCE. shown to contain any new term (o). And further, if tlic person answering an iinanibirruous proposal accepts it with tlie addition of ambiguous w(;i ds, which are capable of being construed consistently with the rest of the docu- ment and so as to leave the acceptance absolute, they will if possible be so construed (p). Again, the unconditional acceptance of a proposal is not deprived of its eflTect by the existence of a misunderstanding between the parties in the con- struction of collateral terms which are not part of the agreement itself (7). An acceptance on condition is absolute if expressed in a manner which estop* the acceptor from denying that the condition has been performed, or that he has waived its performance (r). Parties may postpone conclusion of contract, till the terms are embodied in a formal instrument. One further caution is needed. All rules about the formation and interpretation of contracts are subject to the im- plied proviso, " unless a contrary intention of the parties appears.'"* And it may happen that though the parties are in fact agreed upon the terms — in other words, though there has been a proposal suf- ficiently accepted to satisfy the general rule — yet they do not mean the agreement to be binding in law till it is put into writing or into a formal writing. If such be the understanding between them, they are not to be sooner bound against both their wills. " If to a proposal or offer an assent be given subject to a provision as to a contract, then the stipulation as to the contract is a term of the assent, and there is 44] no agree*ment independent of that stipulation" (s)^^ Whether (0) Gihbins v. ^\ E. Metrop. Asy- C. B. X. S. 057, 28 L. J. C. P. 338. lum District (1847) 11 Beav. 1. The facts unfortunately do not admit ip) English and Foreign Credit of abridgment. Co. V. Ardnin (1870-1) L. R. 5 H. L. (r) Roherts v. Security Co. [1897] 64, per Lord Westbury, at p. 79, 40 1 Q. B. Ill, 66 L. J. Q. B. 119, C. A. L. J. Ex. 108. (.s) Chinnock v. Marchioness of (q) Baines v. WoodfaU (18.59) 6 Ely (186.5) 4 D. J. S. 638, 640. 49 In the following cases it was held that no contract existed until the execu- tion of a written contract, the signing of which was one of the terms of a previous agreement. Spinney r. Downing, 108 Cal. 666; Fredericks v. Fas> nacht, 30 La. Ann. 117: Ferre Canal Co. r. Burgin, 100 La. 309: Mississippi, &c. S. S. Co. V. Swift. 8() Me. 248: Willes r. Carpenter, 7.5 Ud. SO: Lyman v. Robinson, 14 Allen. 242 : Sibley r. Felton, 1.56 Mass. 273 ; Edge Moor Bridge Works V. Bristol, 170 Mass. .528: Eads r. Carondelet, 42 Mo. 113: Bourne r. Shapleigh, 9 Mo. App. 64: Morrill r. Tehama Co., 10 Nev. 12.5: Water Com- missioners V. Brown, 32 X. J. L. .504: Donnellv r. Currie Hardware Co., 66 N. J. L. 388; Brown v. N. Y. Central R. R. Co., 44 N. Y. 79; Commercial Tel. Co. r. Smith. 47 Hun. 494: Xicholls r. Cranger. 7 X. Y. App. Div. 113: Arnold r. Rothschild's Sons Co., 37 X. Y. App. Div. 564, aff'd 164 X. Y. 562; Franke r. Hewitt. 56 X^. Y. App. Div. 497; Congdon V. Darcy, 46 Yt. 478: Boisseau ?;. Fuller, 96 Va. 45. In Mississippi, &c. S. S. Co. r. Swift. SO Me. 248, 258, the Court say: " From these expressions of courts and jurists, it is quite clear that, after all. the nnestinn is mainly one of intention. If the party sought to be charged intended to close a contract prior to the formal signing of a written draft, or if he signified such an intention to the other party, he will be bound by the contract actually made, thousrh the signing of the written draft be omitted. If, on the other hand, such party neither had nor signified such an intention FINALITY OF ACCEPTANCE. 4T such is in truth the understanding is a question which depends on the circumstances of each particular case; if the evidence of an agree- ment consists of written documents, it is a question of construction (not subject to any fixed rule of presumption) whether the expressed agreement is final (t). For this purpose the whole of a continuous correspondence must be looked at, although part of it, standing alone, might appear to constitute a complete contract (u).^^ It is not to be supposed, " because persons wish to have a formal agreement drawn up, that therefore they cannot be bound by a previ- ous agreement, if it is clear that such an agreement has been made; but the circumstance that the parties do intend a subsequent agree- ment to be made is strong evidence to show that they did not intend the previous negotiations to amount to an agreement'' (a)/'^ Still more is this the case if the first record of the terms agreed upon is in sc many words expressed to be " subject to the preparation and approval of a formal contract" (y) r'- or where a certain act, such as payment of the first premium of insurance, is expressly mentioned to fix the commencement of the contract (2). But again: "it is settled law that a contract may be made by letters, and that the mere reference in them to a future formal contract will not prevent their constituting a binding bargain " (a).^^ And in Brogden v. Metropolitan Rij. Co. (h). (t) Rossiter v. Miller (1878) 3 (z) Canning v. Farquhar (1886) App. Ca. 1124, 1152, 48 L. J. Ch. 10. 16 Q. B. Div. 727. 55 L. J. Q. B. 225. (u) Hussey \. Home-Payne (1879) (a) James L.J. in Bonneicell v. 4 App. Ca. .311. 48 L. J. Ch. 846. Jenkins (1878) 8 Ch. Div. 70, 73> (x) Ridffiray v. Wharton (1856-7) 47 L. J. Ch. 758: Bolton v. Lambert 6 H. L. C. 238, 264, 208, per Lord (1889) 41 Ch. Div. 295. 305. [See Cranworth C, and see per Lord also Filbv r. Hounsell [1896] 2 Ch. Wenslevdale at pp. 305-6, 27 L. J. 737: North r. Percival [1898] 2 Ch. Ch. 46. 128.] (,(/) Winn v. Bull (1877) 7 Ch. D. (h) (1877) 2 App. Ca. 666: see 29. Lord Cairns' opinion. to close the contract until it was fully expressed in a written instrument and attested by signatures, then he will not be bound until the signatures aie affi.xed. The expression of the idea may be attempted in other -words: if the written draft is viewed by the parties merely as a convenient memorial, or record of their previous contract, its absence does not affect the binding force of the contract ; if. hoAvever. it is viewed as the consummation of th& negotiation, there is no contract until the writteii draft is finally signed." •WStrobridge Co. v. Randall, 73 Fed. Rep. 619. 51 Lyman r. Robinson, 14 Allen, 242. 254; Allen r. Chouteau, 102 INIo. 309: Methudy r. Ross. 10 Mo. App. 101, 106; Brown r. Railroad Co., 44 X. Y. 79 86 : Virginia Hot Springs Co. r. Harrison. 93 Va. 569. •'■2Llovd r. Nowell, [1895] 2 Ch. 744; Page V. Norfolk, 70 L. T. N. S., 781 j Sibley r. Felton, 156 Mass. 273. 53 in the following cases it was held that there was a contract, though it was asireed that a written contract should lie subseonentlv prepared. Po«t ''- Davis,' 7 Kan. App. 217; Bell i: Offutt, 10 Bush 632; Montague v. Weil, 30 La. Ann. 50 ; Cheney v. Eastern Transportation Line, 59 Md. 557 ; Allen v. 48 AGREEMENT, PROPOSAL, AND ACCEPTANCE. it was iield by the House of Lords that the conduct of the parties, who 45] in fact *dealt for some time on the terms of a draft agreement whicii had never been formally executed, was inexplicable on any other supposition than that of an actual though informal consent to a contract upon those terms. The tendency of recent authorities is to discourage all attempts to lay down any fixed rule or canon as governing these cases. The ques- tion may however be made clearer by putting it in this way — whether there is in the particular case a final consent of the parties such that no new term or variation can be introduced in the formal document to be prepared (c). Certainty of Terms. Agreement must be certain. An agreement is not a contract unless its terms are certain or capable of being made certain. For the Court cannot enforce an agreement without knowing what the agreement is. Such knowledge can be derived only from the manner in which the parties have expressed their intention. It is their business to find such expressions as will convey their meaning with reasonable certainty to a reasonable man conversant with affairs of the kind in which the contract is made. The question then is whether such certainty be present in the particular case. One or two instances will serve as well as many. A promise by the buyer of a horse that if the horse is lucky to him, he will give 5/. more, or the buying of anotlier horse, is " much too loose and vague to be con- sidered in a court of law.'' " The buying of another horse " is a term to which the Court cannot assign any definite meaning {d). An agreement to sell an estate, reserving " the necessary land for making a railway," is too vague (e). An agreement to take a house "if put 46] into ^thorough repair," and if the drawing-rooms were "hand- somely decorated according to the present style," has been dismissed as too uncertain to be specifically enforced (/). A statement by a parent to his daughter s future husband that she will have " a share " (o) Lord Blackburn, 3 App. Ca. at ie) Pearce v. Watts (1875) L. R. p. 1151. In addition to cases alreadj' 20 Eq. 402, 44 L. J. Ch. 402. cited see Leiris v. Brass (1877) 3 {f) Taylor \. Partington (1855) 7 Q. B. Div. GG7. D. M. & G. 328. This' of course did (d) fhithing v. Lynn (1831) 2 B. not decide that an action for dam- & Ad. 232. ages would not lie. Chouteau, 102 :\ro. 300: Green r. Cole (Mo.). 24 S. W. Eep. 1058; Wharton v. Stoutejibourgh, 35 N. J. Eq. 266; Sanders v. Pottlitzer Co., 144 N. Y. 209; Blaney v. Hoke, 14 Ohio St. 292; Mackey r. Mackey's Adm., 29 Gratt. 158; Paige V. Fur.erton Woollen Co., 27 Vt. 485 ; Lawrence r. Milwaukee, &c. Ry Co., 84 Wis 427 ; Cohn v. Plumer, 88 Wis. 622. CERTAINTY OF TERMS. 49 . *65, infra. Tin ^Miller r. Sims, 2 Hill (S. C), 479, where an infant partner after at- taining full age, transacted the business of the firm, received its moneys and paid its debts, it was held that these acts unexplained amounted to a confirma- tion of the partnership, and made him liable for a debt of the firm contracted during his infancy, although he was ignorant of the existence of the debt at the time of such confirmation, and had, on being informed of it, refused to pay it. But see Crabtrce r. May. 1 B. Mon. 289 ; Tobey v. Wood, 123 Mass. 88; Minock f. Shortridge, 21 Mich". 304. 8 Goodwin v. Thompson. 2 Greene (Ta), 329; State r. Lowell, 78 Minn. 166; Koonce v. Wallace. 7 Jones L. 194; Warwick r. Cooper, 5 Sneed. 659. Cp. BegfTs i\ State, 55 Ala. 108; Walls V. State, 32 Ark. 565 with Shafher i;. Slate, 20 Ohio, 1. CONTRACTS OF INFANTS. 65 c. 76 (ss. 8, 22), makes it very difficult, though not impossible, for a minor to contract a valid marriage without the consent of parents or guardians (u). Promises to marry. As to promises to marry and marriage settle- ments, it *has long been familiar law that just as in the case of [60 his other voidable contracts an infant may sue for a breach of promise of marriage, though not liable to be sued (x).^ Marriage settlements. An infant's marriage settlement is not binding en the infant unless made under the statute (see post, pp. *73, *75), and the Court of Chancery has no power to make it binding in the- case of a ward (y). A settlement of a female infant's general per- sonal property, the intended husband being of full age and a party, can indeed be enforced, but as the contract not of the wife but of the husband ; the wife's personal property passing to him by the marriage, he is bound to deal with it according to his contract (z). And par- ticular covenants in an infant's settlement may be valid (a). In any case the settlement is not void but only voidable ; it may be confirmed by the subsequent conduct of the party when of full age and sui iuris (h), and can be repudiated only within a reasonable time after attaining full age (c). («) In most Continental countries point by Edwards v. Carter [1893] the earliest age of legal marriage is A. C. 360, 63 L. J. Ch. 100. fixed: In France it is eighteen for (h) Davies v. Davies (1870) L. R. the man, fifteen for the ^voman, and 9 Eq. 468, 39 L. J. Ch. 343. This is consent of parents or lineal ancestors not affected by the! Infants' Relief Is required up to the ages of twenty- Act, 1874: Duncan v. Dixon (1890) fiveand twenty-one respectively: Code 44 Ch. D. 211, 59 L. J. Ch. 437. A Civ. 144 sqq. But this consent may woman married under age is not dis- be dispensed with in various ways by abled by the coverture from confirm- matter subsequent or lapse of time: ing an ante-nuptial settlement after Bee art. 182, 183, 18.5. The marriage she is of age: Re Hodsoii's Settle- law of other states (except a very ment [1894] 2 Ch. 421, 63 L. J. Ch. few where the canon law may still 609. pre^'ail) appears to differ little on (c) Without regard to the date at the average from the law of France which any particular interest affected in this particular. may fall into possession: Edwards {x) Bacon, Abr. Infancy and Age, v. Carter [1893] A. C. 300, 63 L. J. 1. 4 (4. 370). Per Lord Ellenbor- Ch. 100, with which Re Jones [1893] ough, Warwick V. Bruce (1813) 2 M. 2 Ch. 461. 62 L. J. Ch. 900, does & S. 205, 14 R. R. 634. not seem reconcilable. And election (i/) Field v. Moore (1855) 7 D. M. must be made once for all, not sep- & G. 691, 710, 25 L. J. Ch. 66. arate elections for each acquisition — (z) Davidson, Conv. 3, pt. 2. 728. see Viditz v. O'Hagan [1899] 2 Ch. (a) Smith v. Lucas (1881) IS pp. 569, 576. Ch. D. 531, not overruled on this 9 Cannon r. Alsbury, 1 A. K. Marsh. 76; Hunt v. Peake, 5 Cow. 475; Willard V. Stone, 7 Cow. 22; Bush v. Wick, 31 Ohio St. 521; Warwick v. Cooper, 5 Sneed, 659; Wells v. Hardy, 21 Tex. Civ. App. 648; Pool v. Pratt, 1 Chip. 252. 5 QQ CAPACITY OF PARTIES. Negotiable instruments. Again an infant's contract on a bill of ex- change or promissory note was once supposed to be wholly void;, but is now treated as only voidable (d).^^ Accounts stated. The same holds of an account stated (e)}^ Infant cannot have specific performance. There is one exception to the rule that an infant may enforce his voidable contracts against the 61 ] other party *during his infancy,^^ or rather there is one way in which he cannot enforce them. Specific performance is not allowed at the suit of an infant, because the remedy is not mutual, the infant not being bound (f).^^ When infant may avoid his contracts. An infant may avoid his voidable contracts (with practically few or no exceptions) either before or id) Undisputed in Harris v. Wall (e) Williams v. Moor (1843) 11 (1847) 1 Ex. 122, 16 L. J. Ex. 270, M. & W. 256, 264, 266, 12 L. J. Ex. foil. In re Hodsoyi's Settlement [189i] 253. 2 Ch. 421, 63 L. J. Ch. 609. if) Flight v. Bolland (1828) 4 Russ. 298. 28 R. R. 101. 10 Heady v. Boden, 4 Ind. App. 475 ; Insurance Co. i\ Hilliard, 63 Ohio St. 478; Mission Ridge Co. v. Nixon, (Tenn. ) 48 S. W. Rep. 405; Daniel on Neg. Inst. § 223 seq; 1 Ames, Cas. on Bills and Notes, 463, note. 11 " Tlie numerous decisions -which have been had in this country justify the settlement of the following definite rule, as one that is subject to no exceptions. The only contract binding on an infant is the implied contract for necessaries ; the only act which he is under a legal incapacity to perform is the appointment of an attorney ; all other acts and contracts, executed or executorv, are voidable or confirmable bv him at his election;" 1 Am. L. C. 300; Shropshire v. Burns, 46 Ala. 108; Hyer v. Hyatt, 3 Cr. C. C. 276; Boze- man v. Browning, 31 Ark. 364, 373; Cole v. Pennoyer, 14 111. 158; Fetrow r. Wiseman, 40 Ind. 148; Rice v. Boyer, 108 Ind. 472'; Mansfield v. Gordon, 144 Mass. 168, 169; McDonald v. Sargent, 171 Mass. 492; Baker v. Kennett, 54 Mo. 82, 88; Necker v. Koehn, 21 Neb. 559; Englebert i: Troxell, 40 Neb. 195; Beardsley v. Hotchkiss, 96 N. Y. 201; Bank v. Strauss, 137 N. Y. 148, 152; Skinner v. Maxwell, 66 N. C. 45, 47; Harner v. Dipple. 31 Ohio St. 72 ; Lemmon V. Beeman, 45 Ohio St. 505, 509; Insurance Co. v. Hilliard, 63 Ohio St. 478, 491; Mustard r. Wohlford, 15 Gratt. 329. However, there are even some recent cases approving the threefold division into binding, voidable and void promises. See Green f. Wilding, 59 la. 679 ; Robinson f. Weeks, 56 Me. 102; Dunton r. Brown, 31 Mich. 182; Swafford v. Ferguson. 3 Lea, 292. A power of attorney or agent's appointment was held void in Trueblood r. Trueblood, 8 Ind. 195; Pyle r. Cravens, 4 Litt. 17; Lawrence v. McArter, 10 Ohio, 37. But voidable only in Hastings v. Dollarhide, 24 Cal. 195; Hardy V. Waters, 38 Me. 450; Whitney v. Dutch, 14 Mass. 457, 461; Coursolle v. Weyerhauser, 69 Minn. 328. 12 Tlie other party cannot refuse to perform a contract because of the in- fant's inabilitv to bind himself conclusivelv. Holt v. Ward Clarencieux, 2 Strange. 937 :' Insurance Co. v. Hilliard. 03 Ohio St. 478, 491; O'Rourke r. John Hancock Ins. Co., 23 R. I. 457, 402. See also Atwell v. Jenkins, 163 Mass. 362. 13 Richards r. Green. 23 N. J. Eq. 536. 538 : Ten Evek r. Manning, 52 N. J. Eq. 47, 51. But see Seaton v. Tohill, 11 Col. App. '211. CONTRACTS OF INFANTS. 67 mthin a reasonable time after coming of age: the rule is that "mat- ters in fait [i.e., not of record] he shall avoid either within age or at- full age,"' but matters of record only within age (Co. Lit. 380 b) (g). Subject to the general rule, established for the benefit of innocent third persons, that voidable transactions are not invalid until ratified but valid until rescinded (h), an infant cannot deprive himself of the right to elect at full age, and only then can his election be conclu- Bively determined (i).-*^ ig) See per Farke B. Newry and in a Court of Eecord, see Y. B. 20 & EwniskillenRij. Co. v. Coombe (1849) 21 Ed. I. p. 320. 3 Ex. 565, 18 L. J. Ex. 325; per Cur. (h) Per Lord Colonsay, L. R. 2 L. d N. W. li. V. M' Michael (1850) H. L. 375. 5 Ex. 114, 20 L. J. Ex. 97. As to (i) L. d N. W. R. v. M' Michael, an infant being bound when he comes supra, note {g) ; Slator v. Trimble of age by an acknowledgment made (1861) 14 Ir. C. L. Rep. 342. 14 In Edgerton v. Wolf, 6 Gray, 453, it was decided that an infant having^ during his minority rescinded a cimtract for the sale of a horse, this was final, and precluded his afterwards avoiding the rescission. So in Pippen v. Insur- ance Co., 130 N. C. 23, it was held that an infant's surrender of a policy for its cash value was conclusive. Cp. Lansing v. Michigan Central R. Co., 126 Mich. 663. As to real estate, the rule in this country generally is that an infant cannot avoid his deed until his majority. Hastings r. Dollarhide,. 24 Cal. 195; Chapman v. Chapman, 13 Ind. 39G; Welch v. Bunce, 83 Ind. 382; Baker c. Kennett, 54 Mo. 82, 88; Shipley v. Bunn, 125 Mo. 445; Emmons v. Murray, 16 N. H. 385; Bool v. Mix, 17^ Wend. 119; McCormick r. Leggett, 8 Jones L. 425. Rescission after majority is a final election. McCarty v. Woodstock Iron Co., 92 Ala. 463. Coiitracta of a personal kind, or relating to personal estate, he may avoid during infancy. Shipman r. Horton, 17 Conn. 481; Riley i\ Mallory, 33 Conn. 201; Carpenter v. Carpenter, 45 Ind. 142; Childs V. Dobbins, 55'la. 205; Bailev r. Baruberger, 11 B. Mon. 113; Towle IK Dresser, 73 Me. 252; Adams i: Beall, 67 Md. 53;'"Gillis r. Goodwin, 180 Mass. 140; Simpson v. Prudential Ins. Co.. 184 Mass. 348; Coglev r. Cushman, 16 Minn. 397; Heath r. West, 26 N. H. 191; Carr v. Clough, 20 X. H. 280; Chapin r. Shafer, 49 N. Y. 407 ; Pippen r. Insurance Co., 130 X. C. 23 ; Price V. Furman, 27 Vt. 268: Hoyt r. WilkiMson. 57 Vt. 404. Contra, Dunton v. Brown, 31 Mich. 182; Armitage r. Widoe, 36 Mich. 124; Lansing v. Michigan Central R. Co., 126 Mich. 603. Any attempted affirmance during infancy is ineffectual. Sanger r. Hibbard, 104 Fed. Rep. 445 (c. c. a.). Money paid by a minor under a contract which has not yet been performed by the other party mav be reco^-ered back. Robinson r. Weeks, 56 ]Me. 102 ; Medbury r. W^atrous, 7 Hill, 110; Shurtleff r. Millard, 12 R. I. 272. An infant may avoid an express contract of hiring and service, and recover ■upon quantum meruit tlie value of the services he has rendered under it. Ray r. Haines, 52 111. 485; Van Pelt r. Corwine, 6 Ind. 363; Meredith v. Craw- ford, 34 Ind. 399; Derocher v. Continental Mills, 58 Me. 217; Vent r. Osgood, 19 Pick. 572; GaflTnev r. Harden, 110 Mass. 137; Dube r. Beaudrv. 150 Mass. 448 ; Lowe r. Slnklear, 27 Mo. 308 ; Lupkin r. Mayall, 25 N. PI. 82 '; Whitmarsh r. Hall, 3 Denio. 375; Medburv r. Watrous, 7 Hill, 110; Dearden r. Adams, 19 R. I. 217; Railroad Co. r. Elliott, 1 Cold. 611; Hoxie r. Lincoln, 25 Vt. 206. Some of the cases cited hold that the infant can recover only the value of his services, less the damage suffered by his employer by reason of the breach of his contract. But this makes the engagement of the infant a contract bind- ing on him to the extent of holding him liable for a breach of it, leaving it voidable prospectively only, and not ab initio, and seems clearly wrong on 68 CAPACITY OF PARTIES. Money paid under avoided contract, when not recoverable. If an infant pays a sum of money under a contract, in consideration of wliicii the contract is wholly or partly performed by the other party, he can ac- quire no right to recover the money back by rescinding the contract when he comes of age. Such is the case of a premium paid for a principle. Cp. McCarthy v. Henderson, 13S Mass. 310; O'Rourke v. John Han- cock inc. Co., 23 Pv. I. 4.57. An infant's agreement to labor, in consideration of being furnished board, clothing, etc., may amount to a contract for necessaries, and if it is reasonable and has been executed will be binding. James v. Gillen, 3 Ind. App. 472 ; Stone V. Dennison, 13 Pick. 1; Squires r. Hydliff, 9 Mich. 274; Ormsby v. Ehoades, 59 Vt. 505. Cp. Breed v. Judd, 1 Gray, 455; Spicer v. Earl, 41 Mich. 191. See Genereaux v. Sibley, 18 Pv. I. 42. Where a contract is executory on the part of the infant, and has been per- formed on the part of the other party, if the infant avoids the contract, he thereby divests himself of all right to what he may have received under it, if then still possessed by him in specie, and the other party may repossess him- self thereof in whatever condition it may then be, but if tlie infant have al- lowed it to deteriorate, or Avasted or consumed it, the other party has no remedy therefor. Brandon v. Brown, 106 111. 519, 527; Badger r. Phinney, 15 Mass. 359; Miller r. Smith, 26 Minn. 248; Nichols, &c., Co. v. Snyder, 78 Minn. 502; Brantlev v. Wolf, 00 Miss. 420; Kitchen v. Lee, 11 Paige, 107; Mustard v. Wohlford, 15 Graft. 329; Bedinger i: Wharton, 27 Graft. 857. And in the case of an executed contract of sale, or exchange, if the infant no longer possesses the consideration received by him, having consumed or disposed of it during infancy, he may avoid the contract without putting the other party in statu quo. Tucker v. Moreland, 10 Pet. 58, 73', 74; Manning V. Johnson, 26 Ala. 446; Eureka Co. v. Edwards, 71 Ala. 248; Carpenter v. Carpenter, 45 Ind. 142; Dill v. Bowen, 54 Ind. 204; Chandler v. Simmons, 97 Mass. 508; Morse v. Ely, 154 Mass. 458; White v. New Bedford, &c., Co., 178 Mass. 665; Gillis v. Goodwin, ISO Mass. 140; Simpson r. Prudential Ins. Co., 184 Mass. 348; Brantley r. Wolf, 60 Miss. 420; Harvey v. Briggs, 68 Miss. 60; Craig v. Van Bebber, 100 Mo. 584; Clark v. Tate, 7 Mont. 171; Bloomer r. Nolan, 36 Neb. 51; Englebert r. Troxell, 40 Neb. 195; Green i: Green, 69 N. Y. 553; Cresinger r. Welch, 15 Ohio, 156; Lemmon v. Beeman, 45 Ohio St. 505; Bullock r. Sprowls, 93 Tex. 188; Price v. Furman, 27 Vt. 268; Wiser v. Lockwood, 42 Vt. 720. But see, on the other hand, Bozeman v. Browning, 31 Ark. 364; Bailev v. Bamberger, 11 B. Mon. 113; Johnson r. Insurance Co., 56 Minn. 365; Kerr r. Bell, 44 Mo. 120; Bartlett r. Bailey, 59 N. H. 354; Hall V. Butterfield, 59 N. H. 408; Smith r. Evans, 5 Humph. 70; Lane r. Dayton, &c., Co., 101 Tenn. 581; Stuart r. Baker, 17 Tex. 417; Folty v. Fergu- son, 77 Tex. 301. In Lane r. Dayton, &c., Co., 101 Tenn. 581, it was held that an infant could not avoid an accord and satisfaction without returning the consideration he had received, if he still had it. In McGreall r. Taylor, 167 U. S. 688, an infant made a trust deed to secure money borrowed to pay oflF incumbrances and make improvements on the infant's land, and the money was so used. The deed having been disaffirmed, the lender was held subrogated to the rights of the incumbrancers who had been paid, and the money spent on improvements was considered still in the infant's hands. Somewhat similarly an infant grantor of land was held liable to the grantee for improvements made bj' the latter. Bundle r. Spencer, 67 Mich. 189. If the infant, after reaching majority, sell, or, for an unreasonable time, retain what he has received under the contract, this will be treated as an affirmance, and will preclude him from subsequently avoiding it. McCarthy r. Nicrosi, 72 Ala. 332; Purslev V. Havs, 17 la. 310; Robinson r. Ho«kins^ 14 Bush, 393; Boody v. McKenny, 23 Me. 517; Hilton r. Shepherd, 92 Me. 160; CONTRACTS OF INFANTS. 69 lease (k), or of the price of goods (not being necessaries) sold and delivered to an infant and paid for by him : and so if an infant enters into a partnership and pays a premium, he cannot either before or after his full age recover it back/^ nor therefore prove for it in the bankruptcy of his partners (l). * Infants' Relief Act, 1874. We must now consider the Act of 1874 [62 (37 & 38 Yict. c. 62), which enacts as follows: — 1. All contracts whether by specialty or by simple contract henceforth entered into by infants for the repayment of money lent or to be lent, or for (7c) Holmes v. Blogg (1817) 8 has received no consideration at all he Taunt. 35, 508, S. C. 1 ]\Ioore, 466, 2 can recover: llamUlon v. Vanghan- Moore, 552, 19 E. R. 445. l^hcrrin, dc. Co. [1894] 3 Ch. 589, 63 (/) Ex parte Taylor (1856) 8 D. L. J, Ch. 795. M. & G. 254, 258. But if the infant Boyden v. Boyden, 9 Met. 519; Bobbins i'. Eaton, 10 N. H. 561; Williams v. Mabee, 3 Halst. Ch. 500; State r. Rousseau, 94 N". C. 355; Mission Ridge Co, r. Nixon, (Tenn.) 48 S. W. Rep. 405. Contra, as to lumber built into a house. Bloomer v. Nolan, 36 Neb. 51. But mere acquiescence for any length of time short of the statutory period of limitation will not operate as an affirmance of an infant's deed of land, in the absence of other circumstances sufficient to raise an equitable estoppel, Irvine r. Irvine, 9 Wall. 617, 627; Sims v. Everhardt, 102 U. S. 300, 312; Kountz V. Davis, 34 Ark. 590; Wells v. Seixas, 24 Fed. Rep. 82; Richardson V. Pate, 93 Ind. 423; Davis r. Dudley, 70 Me. 230; Prout V. Wiley, 28 Mich. 104; Donovan v. Ward, 100 Mich. 001; Wallace v. Latham. 52 Miss. 291, 297; Shipp V. McKee, 80 Miss. 741; Cresinger v. Welch, 15 Ohio 156; Gillespie v. Bailey, 12 W. Va. 70. Contra, Hastings v. Dollarhide, 24 Cal. 195; Bentley V. Greer, 100 Ga, 35; Goodnow v. Empire Lumber Co., 31 Minn. 468, and cases cited. Where a person of full age promises to perform a contract entered into during his minority, he thereby ratifies the contract, although he does not know at the time of the promise, that by reason of his minority at the time of the contract he is not legally liable thereon. American Mtge. Co. r. Wright, 101 Ala. 658; Bestor v. Hickey, 71 Conn. 181; Clark r. Van Court, 100 Ind. 113; Morse v. Wheeler, 4 Alien, 570; Taft v. Sergeant, IS Barb. 320; Ring 17. Jamison, 66 Mo. 424; Anderson r. Soward, 40 Ohio St. 325. Contra, Trader r. Lowe, 45 Md. 1; Turner r. Gaither, 83 N. C. 357; Hinely v. Mar- garitz, 3 Pa. St. 428; Hatch r. Hatch's Est., 60 Vt. 160. Ratification in ignorance of the fact that the party ratifying was an infant at the time of the original transaction is not binding. Ridgeway v. Herbert, 150 Mo. 606, 614. When an infant purchases property, and in pursuance of the contract gives a purchase-money mortgage upon it, he cannot avoid the mortgage without also avoiding the purchase and restoring the property ; and in such case, if the infant sells the mortgaged property, his purchaser takes it subject to the mortgage. Coglev v. Cushman, 16 Minn. 397; Oltman v. Moak, 3 Sandf. Ch. 431; Curtis r. McDougal. 26 Ohio St. 66; Knaggs v. Green, 48 Wis. 601. And see, Weed v. Beebe, 21 Vt. 495. Acknowledgment or part payment of a debt incurred during minority does not amount to a ratification. Thrupp v. Fielder, 2 Esp. 628; Kendrick r. Neisz, 17 Col. 506; Catlin v. Haddox. 49 Conn. 492; Ford r. Phillips, 1 Pick. 202; Hale i\ Gerrish, 8 N. H. 374; Baker r. Kennett, 54 Mo. 82; Goodsell v. Myers, 3 Wend. 479. Contra, American Mtge. Co. r. Wright, 101 Ala. 658. Nor is a promise t-o a third party sufficient. Bigelow v. Grannis, 2 Hill, 120. 15 Adams v. Beall, 07 Md. 53. 70 CAPACITY OF PARTIES. goods supplied or to be supplied (other than contracts for necessaries), and all accounts stated with infants, shall be absolutely void: provided always that tliis enactment shall not invalidate any contract into which an infant may by any existing or future statute or by the rules of common law or equity enter, except such as now by law are voidable. 2. No action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any 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. 3. This Act may be cited as The Infants' Relief Act, 1874. Ratification still operative for some purposes. The 2nd section (m) for- bids an action to be brought on any promise or ratification of a con- tract made during infancy, and it applies to a ratification since the Act of a promise made in infancy before the passing of the Act (n), whether tlie agreement is or is not one of tliose included in s. 1 (o). It probably also prevents the ratification from being available by way of set-off (/;). This, however, is a different thing from depriv- ing the ratification of all effect. For it may have other effects than ■giving a right of action or set-off, and these are not touched. While the matter was governed by Lord Tenterden's Act (m) there were many cases where a contract made during infancy might be adopted or confirmed without any ratification in writing so as to produce im- portant results. Thus in the case of a marriage settlement the mar- 63] ried persons are bound not so *much by liability to be sued (though in some cases and for some purposes the husband's covenants are of importance) as by inability to interfere with the disposition of the property once made and the execution of the trusts once con- stituted : and so far as concerns this an infant's marriage settlement may, as we have seen, be sufficiently confirmed by his or her conduct after full age (q). Again an infant partner who does not avoid the partnership at his full age is, as between himself and his partners, (m) It supersedes the 5th section ise: Ditcham v. Worrall (1880) 5 of Lord Tenterden's Act (9th Geo. 4, C. P. D. 410, 49 L. J. C. P. 688, by c. 14), by which no ratification of Lindlcy and Denman JJ. diss. Lord such a contract could be sued upon Coleridge C.J. unless in writing and signed by the (p) Rawley v. Raivley (1876) I party to be charged, since expressly Q. B. Div. 460, 45 L. J. Q. B. 675. repealed by the Statute Law Revision (q) Davies v. Davies (1870) L. R. Act. 1875 (38 & 39 Vict. c. 66). 9 Eq. 468. 39 L. J. Ch. 343, supra, in) Ex parte Kibble (1875) L. R. p. *60. In Duncan v. Dixon (1890) 10 Ch. 373. 44 L. J. Bk. 63. 44 Ch. D. 211, 59 L. J. Ch. 437, an (o) Coxhead V. Mullis (1878) 3 C. attempt was made to bring an in- P. D. 439. 47 L. J. C. P. 761. It is fant's marriage settlement within held, however, that in a case which s. 1, on the ground that it must be would before the Act have been one read as including all contracts what- of ratification it may be left to the ever. The Act is not quite so ill- jury to say whether the conduct of drawn as to admit this construction, the parties amounts to a new prom- infants' relief act. 71 completely bound by the terms on which he entered it without any formal ratification ; and in taking the partnership accounts the Court would apply the same rule to the time of his minority as to the time after his full age. Again an infant shareholder who does not dis- claim may after his full age, at any rate, be made liable for calls without any express ratification ; on the contrary, the burden of proof is on him to show that he repudiated the shares within a reasonable time (r). And as Lord Tenterden's Act did not formerly stand in the way of. these consequences of the affirmation or non-repudiation of an infant's contract, so the Act of 187-i will not stand in the way of the same or like consequences in the future. In fact the operation of the present Act seems to be to reduce all voidable contracts of infants ratified at full age, whether the ratification be formal or not, to the position -of agreements of imperfect obligation, that is, which cannot be directly enforced but are valid for all other purposes. Other examples of such agreements and of their legal effect will be found in the chapter specially assigned to that subject. Specific performance. A collateral result of this enactment appears to be that one who has made a contract during his infancy is not *now able to obtain specific performance of it after his full age, [64 for the same reason that he cannot and formerly could not do so sooner (s). Proviso as to new consideration.- The proviso as to new consideration meets such cases as that of an attempt to set up as a new contract the compromise of an action brought on the original promise (t). It is reinforced by s. 5 of the Betting and Loans (Infants) Act, 1892, which absolutely avoids all agreements and instruments (even nego- tiable ones), made for the payment of money representing or con- nected with a loan advanced during infancy (ii). Section i, making certain contracts void. In the first section of the principal Act, the words concerning the purchase of goods are not free from obscurity. If we might construe the Act as if it said '' for payment for goods supplied," &c., it would be clear enough: but it is not so clear what is the precise operation of an enactment that contracts " for goods supplied or to be supplied," other than neces- saries, shall be void. It seems to follow that no property will pass (r) See pp. "SS, *Q6. (t) Smith v. King [1892] 2 Q. B. is) Flight V. Bolland (1828) 4 543, 67 L. T. 420. Kus8. 298, 28 R. R. 101, p. *Q\, supra. (u) 55 Vict. c. 4. The rest of the Act is criminal. 72 CAPACITY OF PARTIES. to the infant by the attempted contract of sale, and that if he pays the price or any part of it before delivery of the goods he may recover it back; as indeed he might have done before the Act, for the con- tract was voidable, and he was free to rescind it within reasonable time. But it does not follow that if the goods are delivered no prop- erty passes or that if they are paid for the money may be recovered back. At all events an infant who has paid for goods and received and used them cannot recover the money back (x). The contrary con- struction would be unreasonable, and is not required by the policy of the statute, which is to protect infants from running into debt, not to disable them from making purchases for ready money. It is certain that when a particular class of contracts is simply declared to be un- 65] lawful, this does not prevent property from passing by an *act competent of itself to pass it, though done in pursuance or execution of the forbidden contract (y). Moreover it has been held that an in- fant may be guilty of larceny as a bailee though the goods were deliv- ered to him on an agreement void under the Act (z). On the whole it seems that the contract is voidable, but that goods actually delivered can be returned, and the price recovered back, only so far and so long as complete restitution is possible. It has been suggested that the exception of " contracts for neces- saries " may include loans of money advanced and in fact used for the purpose of buying necessaries. The point is not known to have been judicially considered. It is doubtful whether a bond, bill of exchange, or note given by a man of full age, for which the consideration was in fact the supply of goods not necessaries during his infancy, would be void under s. 1 (a). But s. 2 (which indeed seems altogether more useful than s. 1) would no doubt effectually prevent it from being enforced as between the immediate parties, though perhaps the words are not the most apt for that purpose. The Building Societies Act, 1874, enables an infant to be a member, but this does not imply any exemption from the disability to mort- gage his real estate created by the Infants' Eelief Act : for that is not the sole purpose or a necessary purpose of membership (aa). (x) Talcntini v. Cayiali (1889) 24 (a) Cp. Flight v. Rccd (1863) 1 Q. B. Div. 1G6, 59 L. J. Q. B. 74. H. & C. 703, 32 L. J. Ex. 2G5. iy) Ayers v. South Australian (aa) Thurstnn v. Nottingham, dc. Banking Co. (1871) L. R. 3 P. C. Biiildinq Sac. [1902] ICh. 1,71 L.J. 548. 559. 40 L. J. C. P. 22. Ch. 83, C. A. {z) R. V. McDonald (1885) 15 Q. B. D. 323. 52 L. T. 583. INFANTS : LIABILITY AS OWNER. 73 2. Of the UahUity of infants on, obligations incident to interests in permanent property. Liability on obligations incident to property. In an old case reported under various names in various books (6), it was decided that an in- fant lessee who con*tinues to occupy till he comes of full age is [66 after his full age liable for arrears of rent incurred during his infancy. In like manner a copyholder who was admitted during his minority and has not disclaimed is bound to pay the fine (c). The same prin- ciple is applied to the case of infant shareholders in railway com- panies. An infant is not incapable of being a shareholder {d), and as such is prima facie liable when he comes of age to be sued for calls on his shares. He can avoid the liability (which, though regulated by statute, has the general incidents of contract) only b}'' showing that he repudiated the shares either before attaining his full age (c ), or in a reasonable time afterwards (/). A railway shareholder is not a mere contractor, but a purchaser of an interest in a subject of a permanent nature with certain obligations attached to it; and those obligations he is bound to discharge, though they arose while he was a minor, unless he has renounced the interest. A mere absence of ratification is no sufficient defence, even if coupled with the allegation that the defendant has derived no profit from the shares. For if the property is unprofitable or burdensome, it is the holder's business to disclaim it on attaining his full age, if not before; and perhaps he could not exonerate himself even during his minority by showing that the interest was not at the time beneficial, unless he actually disclaimed it {g). Comparing the anal*ogous case of a lease, [67 the Court said — " We think the more reasonable view of the case is (6) Kettle v. Eliot (1614) Rolle infant shareholder was made abso- Ab. 1, 731, K., Cro. Jac. 320, Brown- lutely liable by the general form of low, 120.. 2 Bulst. 69. See the judg- the enactment in the Companies ment of the Court of Exchequer in Clauses Consolidation Act defining L. & N. W. Ry. Co. v. M'Michael the liability of shareholders. See (1850) 5 Ex. 114, 20 L. J. Ex. 97. per Lord Denman C.J. and Patteson (c) Evelyn \. Chichester (1765) 3 J. in Cork d Bandon Ry. Co. v. Burr. 1717. Cazenove (1847) 10 Q. B. 935. This (d) He can subscribe a memoran- view was afterwards abandoned as dum of association: Luxon d Co. inconsistent with the established rule (No. 2) (1891) 40 W. R. 621. that general words in statutes are (e) Neicry d Enniskillen Ry. Co. not to be construed so as to deprive V. Coombe (1849) 3 Ex. 565, 18 L. J. infants, lunatics, &c., of the protec- Ex. 325. tion giA-en to them by the common if) A plea which merely alleged law. repudiation after full age was there- (a) It is submitted that in such fore held bad in Dublin d Wickloio a case the disclaimer if made would Ri/. Co. V. Black (1852) 8 Ex. 181, conclusively determine his interest 22 L. J. Ex. 94. At one time it seems and not merely suspend it. to have been thought that even an 74 CAPACITY OF PARTIES. that the infant, even in the case of a lease which is disadvantageous to him, cannot protect himself if he has taken possession, and if he has not disclaimed, at all events unless he still be a minor "(/i). Simi- larly an infant member of a building society who has purchased land by means of an advance from the society cannot claim to hold the property free from the society's charge for the money advanced ({). In all the decided cases the party appears to have been of full age at the time of the action being brought, but there is nothing to show that (except possibly in the case of a disadvantageous contract) he might not as well be sued during his minority. The same results, except as to suing the shareholder while still a minor, would follow from the general principles of the law of part- nership even if the company in which the shares were held had not any permanent property. 3. Of the liability of an infant when the contract is for his benefit, and especially for necessaries. ■Liability on beneficial contract. It has been laid down in general terms that if an agreement be for the benefit of an infant at the time, it shall bind him (/), or even that the contract is binding unless manifestly to the infant's prejudice (k)}^ An infant's contract of apprenticeship (/), or an ordinary contract to work for wages, will, if it be reasonable, be considered binding on the infant, so that he may no less than an adult incur the statutory penalties for unlawfully 68] absenting *himself from his master's employment (m). An infant entered the service of a railway company and, as a condition of the service, became a member of an insurance society established by the company; the funds were augmented by the company to the extent of five-sixths of the premiums payable by the members. The (h) L. d N. W. Ry. Co. v. (I) Wood v. Fenvnck (1842) 10 M'MicMel (1850) 5 Ex. 114, 20 L. J. M. & W. 195. Ex. 97. 101. (m) In Leslie v. Fitzpatrick (1877) ({) Thurstan v. Nottingham Per- 3 Q. B. D. 229, 47 L. .J. M. C. 22, a manent Benefit Building Soc. [1901] case of summary proceedings under 1 Ch. 88 ; affirmed on this point the Employers and Workmen Act, [1902] 1 Ch. 1, 71 L. J. Ch. 83. 1875, it may be collected that the (;') Maddon v. White (1787) 2 facts were of the same kind, though T. R. 159. 1 R. R. 453. the employer's plaint was in terms {k) Cooper v. Simmons (1862) 7 for a breach of contract. As to in- H. & N. 707, 721; per Wilde B. Not fant apprentices in London see p.*74, so strongly put in the L. J. report, below. 31 L. J. M. C. 138, 144. IS Contracts for necessaries are alone binding in this country. Henderson r. Fox, 5 Ind. 489; Tupper v. Cadwell, 12 Met. 550; Insurance Co. v. Noyes, 32 X. H. 345; O'Rourke v. John Hancock Ins. Co., 23 R. I. 457, 462; supra, p. 66, note 11. INFANTS : BENEFICIAL CONTRACTS. 75 rules provided for compensation in all cases of accident not due to the member's own wilful act or gross negligence, and bound the mem- bers to accept the benefits of the society in lieu of any claims under the Employers' Liability Act. The Court of Appeal held that the infant was bound by this agreement as being on the whole for his benefit (n). But an action will not lie against an infant on a cove- nant in apprenticeship indentures (o) ; and if the terms are not rea- sonable the agreement is void for all purposes, so that an action will not lie against a stranger for enticing away the apprentice (p). Again there are many conceivable cases in which it might be for an infant's benefit, or at least not manifestly to his prejudice, to enter into trading contracts, or to buy goods other than necessaries : one can Tiardly say for example that it would be manifestly to the disadvantage of a minor of years of discretion to buy goods on credit for re-sale in a rising market; 3a^t there is *no doubt whatever that such a [69 contract would at common law be voidable at his option. A contract whereby an infant agrees with a railway company, in consideration of "being allowed to make a certain habitual journey to and fro on special terms, to waive all claims for accident to himself or his property, is detrimental to the infant and not binding on him (q). 'Not has it ever been suggested that an infant partner or shareholder is at liberty to disclaim at full age only in case the adventure has been unprofit- able or is obviously likely to become so. However, inasmuch as since the Infants' Relief Act, 1874, an infant's contract, if not binding on him from the first, can never be enforced against him at all, it seems quite possible that the Courts may in future be disposed to extend rather than to narrow the description of contracts which are considered binding because for the infant's benefit (r). (n) Clements v. L. d A". W. Ry. to the master's own act, sav a lock- Co. [1894] 2 Q. B. 482, 63 L. J. Q. B. out, is not reasonable: Corn v. Mat- mi. It seems, though it was not theirs [1893] 1 Q. B. 310, 62 L. J. necessary to decide the point, that M. C. 61, C. A., dist. Green v. Thomp- the principle of an infant's contract son [1899] 2 Q. B. 1, 68 L. J. Q. B. being valid when the Court is satis- 719, where the exception was of days lied that it was for his benefit is not when the business should be at a confined (as was argued for the plain- standstill by accidents beyond the tiff) to contracts of apprenticeship or control of the master, labour; see especially the judgment (g) Flower v. L. & N. W. Ry. Co. of Kay L.J. [1894] 2 Q. B. 65, 63 L. J. Q. B. 547, (o) De Francesco v. Barntim C. A. (No. 1) (1889) 43 Ch. D. 165, 59 (r) In an action brought by an L. J. Ch. 151. ijifant, an undertaking given by the (p) De Francesco v. Barnum infant's next friend is not binding if (No. 2) (1890) 45 Ch. D. 430, 63 the circumstances are such that it L. T. 438. A clause enabling the cannot be for the infant's benefit: master to suspend the apprentice's Rhodes v. Simthenbank (1889) 22 wages in an event which may be due Q. B. Div. 577, 58 L. J. Q. B. 287. 76 CAPACITY OF PARTIES. 3a. Contracts for necessaries. Liability for necessaries. B}^ the Sale of Goods Act, 1893, s. 2 — ..." Where necessaries are sold and delivered to an infant . . . or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price therefor. " ' Xecessaries ' in this section mean goods suitable to the condition in life of such infant ... or other person, and to his actual require- ments at the time of the sale and delivery." This enactment is a legislative declaration of the law as settled by a series of authorities, of which the judgment of the Exchequer Cham- ber in Ryder v. ^YomJ)well is the chief: — " The general rule of law is clearly established, and is that an infant is 70] "generally incapable of binding himself by a contract. To this rule there is an exception introduced, not for the benefit of the tradesman who may trust the infant, but for that of the infant himself. This exception is that he may make a contract for necessaries, and is accurately stated by Parke B. in Peters v. Fleming (s) . ' From the earliest time down to the present the word necessaries is not confined in its strict sense to such articles as were neces- sary to the support of life, but extended to articles fit to maintain the par- ticular person in the state, degree and station in life in which he is; and therefore we must not take the word necessaries in its unqualified sense, but with the qualification above pointed out' " {t) . What are necessaries. What in any particular case may fairly be called necessary in this extended sense, is what is called a question of mixed fact and law: that is, a question for a jury, subject to the Court being of opinion that there is evidence on which the jury may not reasonably find for the plaintiff. The station and circumstances of the defendant and the particulars of the claim being first ascertained, it is then for the Court to say whether the things supplied are prima facie such as a jury may rea- sonably find to be necessaries for a person in the defendant's circum- stances, or " whether the case is such as to cast on the plaintiff the onus of proving that the articles are within the exception [i.e., are necessaries], and then whether there is any sufficient evidence to satisfy that onus." In the latter case the plaintiff must show that although the articles would generally not be necessary for a person in the defendant's position, yet there exist in the case before the Court special circumstances that make them necessary. Thus articles of diet which are prima facie mere luxuries may become necessaries if prescribed by medical advice (u). It is said that in general the is) (1840) 6 M. & W. at p. 46. (m) See Wharton v. Mackenzie (t) (18G8) L. R. 4 Ex. 32. 38: (1844) 5 Q. B. 600. 13 L. J. Q. B. in the Court below L. R. 3 Ex. 90, 130, and per Bramwell B. L. R. 3 Ex. 38 L. J. Ex. 8. at p. 96. INFANTS : NECESSARIES. 77 test of necessity is usefulness, and that nothing can be a necessary which cannot possibly be *useful: but the converse does not [71 hold, for a useful thing may be of unreasonably costly fashion or material. It is to be borne in mind that the question is not whether the things are such that a person of the defendant's means may rea- sonably buy and pay for them, but whether they can be reasonably said to be so necessary for him that, though an infant, he must obtain them on credit rather than go without. For the purpose of deciding this question the Court will take judicial notice of the ordinary cus- toms and usages of society (x). If the Court does not hold that there is no evidence on which the supplies in question may reasonably be treated as necessaries, then it is for the jury to say whether they were in fact necessaries for the defendant under all the circumstances of the case.^'^ Supply from other sources. The Act has laid down, in accordance with the weight of authority (y), that the buyer's actual require- ments must be considered. If the goods supplied are necessary, the tradesman will not be the less entitled to recover because he made no inquiries as to the infant's existing supplies; but if the infant is already so well supplied that these goods are in truth not necessary, the tradesman's ignorance of that fact will not make them necessary, and he cannot recover. There is no rule of law casting on him a posi- (cc) L. R. 4 Ex. at p. 40. open in Ex. Cli.. L. R. 4 Ex. 42) ; but (y) Brayshaic v. Eaton (1839) 5 this \yas dissented from in Barnes v. Bing. X. C. 231, 7 Scott, 183, 50 R. R. Toye (1884) 13 Q. B. D. 410, and 773; Foster v. Redgrave (1866) L. R. (by members of the C. A. sitting as 4 Ex. 35, n. ; to the contrary, Ryder a Divisional Court) Johnstone v. V. Wombivell (186S) L. R. 3 Ex. 90. Marks (1887) 19 Q. B. D. 509, 57 38 L. J. Ex. 8; (the point was left L. J. Q. B. 6. iTMcKanna r. Merry, 61 111. 177; Beeler r. Young, 1 Bibb, 519; Tupper v. Cadwell, 12 Met. 559, 563; Merriam r. Cunningham, 11 Cush. 40; Decell v. Lewenthal, 57 Miss. 331; Englebert v. Troxell, 40 Neb. 195. If the infant is already supplied, he cannot bind himself even for articles of a necessary kind. Conboy v. Howe, 59 Conn. 112; Davis v. Caldwell, 12 Cusli. 512; Trainer v. Trumbull, 141 Mass. 527; Perrin v. Wilson, 10 Mo. 451; Jones V. Colvin, 1 McMull. L. 14; Kraker v. Byrum, 13 Rich. L. 163; Elrod V. Meyers, 2 Head, 33 ; Parsons r. Keys, 43 Tex. 557. Ignorance on the part of the seller that the infant was already partially or wholly supplied makes no difference; he contracts with the infant at his peril. Kline r. L'Amoureux, 2 Paige, 419; Nichol v. Steger, 2 Tenn. Ch. 328; affd.. 6 Lea, 393. Where one sells to an infant articles, necessaries in kind, but in inordinate quantity, a recovery can be had for such quantity only as was actually neces- sary. Johnson r. Lines, 6 W. & S. 80. 78 CAPACITY or PARTIES. tive duty to make inquiries, but he omits to do so at his peril.^^ But the defendant having an income out of which he might keep himself Bupplied with necessaries for ready money is not equivalent to his being actually supplied, and does not prevent him from contracting for necessaries on credit (z).^^ 72] *Apparent means of buyer not material. It would be natural for juries, if not warned against it, to fall into a way of testing the neces- sary character of supplies, not so much by what the means and position of the buyer actually were, as by what they appeared to be to the seller, and such a view was not altogether without countenance from author- ity (a). It is conceived, however, that the knowledge or belief of the tradesman has nothing to do with the question whether the goods are necessary or not. It may be said that the question for the Court will, as a rule, be whether articles of the general class or description were prima facie necessaries for the defendant, and the question for the jury will be whether, being of a general class or description allowed by the Court as necessary, the particular items were of a kind and quality necessary for the defendant, having regard to his station and circumstances. For instance, it would be for the Court to say whether it was proper for the defendant to buy a watch on credit, and for the jury to say whether the particular watch was such a one as he could reasonably afford. But this will not hold in extreme cases. In Ryder v. Womhivell (&)the Court of Exchequer Chamber held, reversing the judgment of the majority below on this point, that be- cause a young man must fasten his wrist-bands somehow it does not follow that a jury are at liberty to find a pair of jewelled solitaires at a price of 251. to be necessaries even for a young man of good fortune. "What the term " necessaries " includes. Hitherto we have spoken of a tradesman supplying goods, this being by far the most common case. (z) Burghart v. Hall (1839) 4 M. Bing. X. C. 128, 50 R. R. 758. and & W. 727, 51 R. R. 788. Contra Preface; 7 Scott, 117, much weight Moriara v. Hall (1834) 6 Sim. 465. is given to the apparent rank and The doctrine there laid down seems circumstances of the party. This euj)erfluous, for the supplies there amounts to supposing that an infant claimed for (such as 209 pairs of may be liable, ijy a kind of holding gloves in half a year) could not have out, for goods which are not neces- been reasonably found necessary in sary in fact, any case. ' (h) (1868) L. R. 4 Ex. 32, 38 (a) In Dalton v. Gih (1839) 5 L. J. Ex. 8. 18 The plaintiff does not have to prove that the infant had no parent whose duty it was to provide for him. Tlie burden is on the defendant to show that he had such a parent. Goodman r. Alexander, 165 N. Y. 289. 19 See Nicholson r. Wilborn, 13 Ga. 467; Rivers v. Gregg, 5 Rich. Eq. 274. INFANTS : NECESSARIES. 79 But the range of possible contracts for " necessaries " is a much *wider one. " It is clearly agreed by all the books that speak of [73 this matter that an infant may bind himself to pay for his necessary meat, drink, apparel, physic [including, of course, fees for medical at- tendance, &c., as well as the mere price of medicine"^], and such other necessaries and likewise for his good teaching and instruction, whereby he may profit himself afterwards "(c). Thus learning a trade may be necessary, and on that principle an infant's indenture of appren- ticeship has been said to be binding on him {d).~'^ The preparation of a settlement containing proper provisions for her benefit has been held a necessary for which a minor about to be married may make a valid contract, apart from any question as to the validity of the eettlement itself (e).-^ A more remarkable extension of the definition of necessaries is to be found in the case of Chappie v. Cooper (/), where an infant widow was sued for her husband's funeral expenses. The Court held that decent burial may be considered a necessary for every man, and hus- band and wife being in law the same person, the decent burial of a (c) Bac. Abr. Infancy and Age, I. Martin B. See, however, p. 63, (4. 335). And see Chappie v. Cooper sujyra. (1844) 13 M. & W. 252, 13 L. J. Ex. (e) Helps v. Clayton (1864) 17 286. As to instruction in trade, &c., C. B. N. S. 553, 34 L. J. C. P. 1, see Walter v. Everard [1891] 2 Q. B. the pleadings, and the judgment of 369, 60 L. J. Q. B. 738, C. A. the Court ad fin. (d) Cooper v. Simmom (1862) 7 (f) (1844) 13 M. & W. 252, 13 H. & N. 707, 31 L. J. M. C. 138, per L. J. Ex. 286. 20 Strong V. Foote, 42 Conn. 203 (a dentist's bill for filling teeth). 21 See Pardey v. American Windlass Co., 19 R. I. 461. A common-school education is, but a collegiate or professional education is not, recognized as one of the necessaries for an infant. Turner f. Gaither, 83 N. C. 357; Bouchell v. Clary, 3 Brev. 194; Middlebury College v. Chandler, 16 Vt. 083. 22 A " wedding suit " has been held to be a necessary for an infant about to be married. Sams r. Stockton, 14 B. Mon. 232. So a bridal outfit. Jordan r. Coffield, 70 N. C. 110. An infant is liable for counsel fees for services rendered in a criminal or quasi-criminal proceeding against him. Barker v. Hibbard, 54 N. H. 539 ; Askey v. Williams, 74 Tex. 294. So for services rendered in prosecuting suit for personal injuries. Hanlon r. Wheeler, 45 S. W. Rep. 821 (Tex. C. A.). Cp. Phelps V. Worcester, 11 N. H. 51; Thrall v. Wright, 38 Vt. 494. Timber furnished an infant to enable him to build a dwelling on his land. Freeman v. Bridger, 4 Jones L. 1, repairs upon his dwelling-house, Tupper v. Cadwell, 12 Met. 559; Phillips v. Lloyd, 18 R. I. 99, insurance of his property against fire, Insurance Co. i\ Xoyes. 32 N. H. 345, a bicycle, Pyne v. Wood, 145 Mass. 558; Rice V. Butler, 160 N. Y. 578, a buggy, Howard v. Simpkins, 70 Ga. 322, a wagon, Paul v. Smith, 41 Mo. App. 275, have been held not to be necessaries. Other cases deciding what are, and what are not, necessaries, are, Munson t'. Washband, 31 Conn. 303: Darrell r. Hastings, 28 Ind. 478; House V. Alexander, 105 Ind. 109; Beeler v. Young, 1 Bibb. 519; ]\Ierriam v. Cimning- ham, 11 Cush. 40; Rvan v. Smith, 165 Mass. 303; Epperson v. Nugent, 57 Miss. 45; Glover v. Ott, 1 McCord, 572; Rainwater r. Durham. 2 Nott & M. 524; Aaron f. Harley, 6 Rich. L. 26; Grace r. Hale, 2 Humph. 27. 80 CAPACITY OF PARTIES. deceased husband is therefore a necessary for his widow. It would perhaps liave been better to adopt the broader ground that a contract entered into for the purpose of performing a moral and social, if not legal, duty, which it would have been scandalous to omit, is of as necessary a character as any contract for personal service or purchase of goods for personal use.--^ The liaoility is on simple contract only. The supply of necessaries to an infant creates only a liability as on simple contract, and it cannot 74] be made the ''-ground of any different kind of liability.^** Coke says: "If he bind himself in an obligation or other writing with a penalty for the payment of any of these, that obligation shall not bind him "(f/). A fortiori, a deed given by an infant to secure the repayment of money advanced to buy necessaries is voidable (/(). But in these and similar cases the infant's liability on simple con- tract, or rather ^wa^t-contract, is not affected {i). An infant is not in any circumstances liable on a bill of exchange or promissory note (A:). 25 .(<7) Co. Lit. 172 a, cp. 4 T. R. 363. (k) Re Soltyhoff, Ex parte Mar- (h) Martin v. Gale (1876) 4 Ch. greft [1891] 1 Q. B. 413, 60 L. J. D. 428, 46 L. J. Ch. 84. Q. B. 339, C.A. (i) Walter v. Everard [1891] 2 Q. B. 369, 60 L. J. Q. B. 738, C.A. 23 In Rowe r. Raper, 23 Ind. App. 27. it was held the funeral expenses of a deceased infant Avere not a charge upon his estate, if he left a father sur- viving and able to pav them. See remarks upon this case in 13 Harv. L. Rev. 306. 24 The obligation of the infant for necessaries furnished seems rather to be quasi ex contractu than a real contract. He can make no binding executory contract to purchase necessaries. Gregory v. Lee, 64 Conn. 407 ; Wells V. Hardy, 21 Tex. Civ. App. 454; Pool r. Pratt, 1 Chip. 252, 254. Where necessaries have been furnished him, the law creates an obligation to pay for them, though the infant may have been too young to understand the nature of a contract. Hyman v. Cain, 3 Jones L. 111. And where an express promise is made, the price stipulated is not binding, but the seller recovers only the reasonable value of the article furnished. Hyer v. Hyatt, 3 Cr. C. C. 2f6; Gregory v. Lee, 64 Conn. 407; Ayers v. Burns, 87 Ind. 245; Trainer v. Trumbull, 141 Mass. 527; Locke r. Smith, 41 N. H. 346; Parsons V. Keys, 43 Tex. 557; and see also the cases cited in note 25, infra. At com- mon law a loan of money could not be deemed equivalent to necessaries, though actually spent on necessaries: Bac. Abr. 4. 350. But though not liable at law for money loaned him with which to purchase necessaries, an infant is liable for money paid at his request to a third person for necessaries fur- nished. Kilgore r. Rich, S3 Me. 305; Swift r. Bennett, 10 Cush. 436; Conn V. Coburn, 7 N. H. 368 ; Randall r. Sweet, 1 Denio, 460 ; Haines' Adm'r v. Tarrant, 2 Hill (S. C), 400; Bradley r. Pratt, 23 Vt. 378. ^Miere one lends money to an infant with which to purchase necessaries, and the money is so applied, the lender may recover in equity. Price v. Sanders, 60 Ind. 310; Beeler v. Young, 1 Bibb^ 519; Watson r. Cross, 2 Duv. 147. 149. 2'T In some Slates it is held that no action lies on a note or bond given by an infant for necessaries. Morton v. Steward, 5 111. App. 533 ; Henderson v. INFANTS : STATUTORY POWERS. 81 What contracts an infant can make by custom. There are some par- ticular contracts of infants valid by custom. By custom incident to the tenure of gavelkind an infant may sell his land of that tenure at the age of fifteen, but the conveyance must be by feoffment, and is subject to other restrictions (Z). This, however, is not really a capacity of contracting, for there is no reason to suppose that an action could be brought against the infant for a breach of the con- tract for sale, or specific performance of it enforced. " Also by the custom of London an infant unmarried and above the age of fourteen, though under twenty-one, may bind himself ap- prentice to a freeman of London by indenture with proper cove- nants; which covenants by the custom of London shall be as binding as if he were of full age," and may be sued upon in the superior -courts as well as in the city courts (m). What contracts an infant can make by statute. Infants, or their guard- ians in their names, are empowered by statute (11 Geo. 4 & 1 Wm. 4, c. 65, ss. 16, 17) to grant renewals of leases, and make leases under the direction of the Court of Chancery, and in like manner to sur- render *Ieases and accept new leases (s. 12) (n). And by a [75 later Act (18 & 19 Vict. c. 43) (o), infants may with the sanction of the Court make valid marriage settlements of both real and per- sonal property. (I) Robinson on Gavelkind, 194. (o) This Act doe,s not affect cover- (m) Bacon, Abr. Infancy, B. 4. ture or any disability other than 340; 21 E. IV. 6, pi. 17. infancy: Beaton v. Seaton (1888) 13 (n) See Dan. Ch. Pr. 2. 1917; Re App. Ca. 61, 57 L. J. Ch. 661. And Clark (1866) L. R. 1 Ch. 292, 35 gw. whether it applies to post-nuptial L. J. Ch. 314; Re Letchford (1876) settlements. It does apply to cove- 2 Ch. D. 719, 45 L. J. Ch. 530. (The nants to settle after-acquired prop- provisions as to renewals of leases erty: Moore v. Johnson [1891] 3 Ch. extend also to married women.) 48, 60 L. J. Ch. 499. Fox, 5 Ind. 489; Ayers v. Burns, 87 Ind. 245; Beeler i\ Young, 1 Bibb, 519; McCrillis r. How, 3 N. H. 348; Fenton f. White, 1 South. Ill; Swasey v. Vanderheyden, 10 Johns. 33; Bouchell v. Clary, 3 Beav. 194; McMinn v. Rich- monds, 6 Yerg. 9. In others, that the infancy of the promisor, being sho^vn, is prima facie a bar to the action, but that it is competent for the plaintiff to show that the note was given for the price of necessaries, in which event he will recover only so much of the note as shall appear to have been given for necessaries at their fair value, without regard to the price stipulated to be paid by the minor. Guthrie v. Morris, 22 Ark. 411; Cooper v. State, 37 Ark. 421; Earle V. Reed, 10 Met. 387; Diibose v. WTieddon, 4 McCord. 221; Haines' Adm'r v. Tarrant, 2 Hill (S. C), 400; Askey v. Williams, 74 Tex. 294; Bradley v. Pratt, 23 Vt. 378. 82 CAPACITY OF PARTIES. 4. Of an infant's immunity as to wrongs connected with contract. Infant not liable for wrong where the claim is in substance ex contractu. An infant is generally no less liable than an adult for wrongs com- mitted by him, subject only to his being in fact of such age and dis- cretion that he can have a wrongful intention, where such intention is material ; but he cannot be sued for a wrong, when the cause of action is in substance ex contractu, or is so directly connected with the con- tract that the action would be an indirect way of enforcing the con- tract — which, as in the analogous case of married women (p), the law does not allow.^*' Thus it was long ago held that an infant inn- keeper could not be made liable in an action on the case for the loss of his guest's goods (q). There is another old case reported in divers books (r), where it was decided that an action of deceit will not lie upon an assertion by a minor that he is of full age.^'^ It was said that if such actions were allowed all the infants in England would (p) See -p. *S0, infra. Sm. 113, 16 L. J. Ch. 205; and see (q) Rolle Ab. 1. 2, Action eur other cases collected ih. at p. 110, Case, D. 3. where " the case mentioned in Keble " (r) Johnson v. Pie (1665) Sid. is that which, as stated in the text, 258, 1 Lev. 1G9, 1 Keb. 913, fully occurs in his report of Johnson v. cited by Knight Bruce V.C. in 8 tike- Pie. man v. Daicson (1847) 1 De G. & 26 Green v. Greenbank, 2 Marsh. 485; Vasse r. Smith, 6 Cr. 226; Brown V. Durham, 1 Root, 272; Caswell c. Parker, 96 Me. 39; Prescott v. Norris, 32 N. H. 101; Lowerv v. Cate, 108 Tenn. 54; Gibson v. Spear, 38 Vt. 311; Morrill r. Aden, 19 Vt. 505; West v. Morse, 14 Vt. 447. See also Drude v. Curtis, 183 Mass. 317; contra, Vance v. Word, 1 Nott & McC. 197. 27 Ace. Slavton v. Barry, 175 Mass. 513; Brown v. McCune, 5 Sandf. 224; Curtin v. Patton, 11 S. & R. 305, 309. But see Rice v. Bover. 108 Ind. 472 ; Fitts V. Hall, 9 N. H. 441; New York Bg. Co. v. Fisher, 23 N. Y. App. Div. 363. See also 8 Yale L. J. 235. The infant was held not liable in trover for obtaining goods by representing himself of age in Slayton v. Barry, 175 Mass. 513. Nor will the representation estop the infant. Burdett v. Williams, 30 Fed. Rep. 697; McKamy v. Cooper, 81 Ga. 679; Carpenter v. Carpenter, 45 Ind. 142; Merriam v. Cunnincham, 11 Cush. 40; Conrad v. Lane, 26 Minn. 389; Alt V. Groff, 65 Minn. 191; Burley v. Russell, 10 N. H. 184; Conroe v. Bird- sail, 1 Johns. Cas. 127; Studwell V. Shapter, 54 N. Y. 249; Carolina Assoc. V. Black, 119 N. C. 323; Norris r. Vance, 3 Rich. L. 164; Whitcomb V. Joslyn, 51 Vt. 79. Otherwise by statute in Iowa. Code of 1897, § 3190. In Schmitheimer v. Eiseman, 7 Bush, 298, it was held that " a deed made by an infant feme covert cannot be avoided by her on the ground of her infancy, when to induce an innocent purchaser to make the purchase, she and her hus- band made oath before a notary that to the best of their knowledge and infor- mation she was then more than twentj'-one years of age." And see Damron V Comm.. 22 Ky. L. Rep. 1717; Ferguson r.'Bobo, 54 Miss. 121; Brantlev v. Wolf, 60 Miss. 420; Kilgore v. Jordan, 17 Tex. 341. In Sims r. Everhardt, 102 U. S. 300. on the contrary, it was decided that the infant was not estopped by any declaration which at the time of executing the deed she made in regard to her age. Ace. :McGreal r. Tavlor. 167 V. S. 688, 698; Watson r. Billinjrs. 38 Ark. 278; Wieland r. Koobick. 110 111. 16. And see Wilson's Gdn. r. Wilson. 20 Kv. L. Rep. 1971; Baker r. Stone. 136 Mass. 405; Alt V. Groff, 65 Minn. 191 : Charles v. Hastedt, 51 N. J. Eq. 171. infant's immunity for wrongs. 83 be ruined, for though not bound by their contracts, they would be made liable as for tort ; and it appears in Keble's report that an infant had *already been held not liable for representing a false Jewel [76 not belonging to him as a diamond and his own. The modern case usually cited for this rule is Jennings v. Rundall (s), where it was sought to recover damages from an infant for overriding a hired mare.^* Infant liable for wrong apart from contract, though touching the subject- matter of a contract. But if an infant's wrongful act, though con- cerned with the subject-matter of a contract, and such that but for the contract there would have been no opportunity of committing it, is nevertheless independent of the contract in the sense of not being an act of the kind contemplated by it, then the infant is liable.^^ The distinction is established and Avell marked by a modern case where an infant had hired a horse for riding, but not for jumping, the plaintiff refusing to let it for that purpose ; the defendant allowed his companion to use the horse for jumping, whereby it was injured and ultimately died. It was held that using the horse in this manner, being a manner positively forbidden by the contract, was a mere tres- pass, for which the defendant was liable (t).^^ (s) 8 T. E. 335, 4 R. R. 680. It C. B. X. S. 45, 32 L. J. C. P. 189. A is also recognized in Price v. Heicett bailment at will -would have been de- (1852) 8 Ex. 146 (not a decision, on termined, as where a bailee commits the point ) . theft at common law by " breaking (t) Burnardv. Haggis (1863) 14 bulk." Although there are numerous dicta to the contrary, it is believed that an infant may be bound by estoppel by conduct in a case of fraud apart from contract ; as if an infant owning property, and of sufficient understanding to comprehend the import of his act should, concealing his own title, induce a purchaser to buy the property from another. Whittington f. Wright, 9 Ga. 23; Gilbert r. Carlan, Ct. App. Ky., stated in Wright u. Arnold, 14 B. Mon. at p. 519; Ferguson v. Bobo, 54 Miss. 121; Hall v. Timmons, 2 Rich. Eq. 120; Barham v. Turbeville, 1 Swan, 437. But cp. Lackman v. Wood, 25 Cal. 147; Upshaw V. Gibson, 53 Miss. 341 ; Norris v. W'ait, 2 Rich. L. 148. Consult Bigelow on Estoppel, p. 515. False representations as to his age by an infant purchaser were held ground for rescission by the seller. Neff v. Landis, 110 Pa. 204. Cp. O'Rourke v. John Hancock Ins. Co., 23 R. I. 457, where it was held that a false warranty by an infant did not give the insurance company to which it was made a defense on the policy. This decision is criticised in 15 Harv. L. Rev. 739. 28 While the infant would not be liable for mere imskillfulness or negli- gence, he would be liable for positive willful acts causing injury to the animal. Eaton V. Hill, 50 N. H. 235; Campbell r. Stakes, 2 Wend. 137". 29Vasse V. Smith, 6 Cr. 226: Oliver v. McClellan, 21 Ala. 675; Le\\'is v. Littlefield, 15 Me. 233, 17 Me. 40 ; Baxter v. Bush. 29 Vt. 465. An infant has been held chargeable by action for a tort in obtaining goods fraudulently, with the intention of not paving for them. Wallace v. ^Nlorss, 5 Hill, 391; Mathews v. Cowan, 59 111. 341;" dist. Studwell r. Shapter, 54 X. Y. 249. And see Walker r. Davis, 1 Gray, 506. 30 So an infant who hires a horse to go to a place agreed upon, but drives it to another and further place to its injury, is liable in tort. Homer v. Thwing, 84 CAPACITY OF PARTIES. Qusere, whether liable on contract implied in law. It is doubtful whether an infant can be made liable quasi ex contractu (as for money re- ceived), when the real cause of action is a wrong independent of con- tract; but since the Judicature Acts have abolished the old forms of action, the question seems of little importance (u). 5. Liability in equity on representation of full age. In equity liable, if he represent himself as of full age. When an in- fant has induced persons to deal with him Ijy falsely representing him- 77] self as of full age, he incurs an ^obligation in equity, which how- ever in the case of a contract is not an obligation to perform the contract, and must be carefully distinguished from it (z). Indeed it is not a contractual obligation at all. Limitation. It is limited to the extent we have stated above (p. ■■'')o), and the principle on which it is founded is often expressed in the form : " An infant shall not take advantage of his own fraud." A review of the principal cases will clearly show the correct doctrine. In Clarke v. Cohley (y) the defendant being a minor had given his bond to the plaintiff for the amount of two promissory notes made by the defendant's wife before the marriage, which notes the plaintiff delivered up. The plaintiff, on discovering the truth, and after the defendant came of age, filed his bill praying that the defendant might either execute a new bond, pay the money, or deliver back the notes. The Court ordered the defendant to give back the notes, and that he should not plead to any action brought on them the Statute of Limita- («) The liability is affirmed by Declaration for goods sold, &c. Plea, Leake (p. 470), [ace. Shaw r. Cof- infancy. Equitable replication, that fin, 58 Me. 2.54 ; Elwell r. Martin, 32 the contract was induced by defend- Vt. 217; Cooley on Torts, 112.] and ant's fraudulent representation that disputed by Mr. Dicey (on Parties, he was of age. The replication was 284), who is supported by a dictum held bad, as not meeting the defence, of Willes J. assuming that infancy but only showing a distinct equitable would be a good plea to an action for right collateral to the cause of action money received, though substantially sued upon. founded on a wrong. Alton v. Mid- (y) (1789) 2 Cox, 173, 2 R. R. 2.5. lai^d Ry. Co. (1865) 19 C. B. N. S. at It must be taken, though it is not p. 241, 34 L. J. C. P. at p. 297. [See clear by the report, that the defend- Re Seager, 60 L. T. R. 665.] ant falsely represented himself as of (x) Ace. Bartlett v. Wells (1862) full age. 1 B. & S. 830, 31 L. J. Q. B. 57. 3 Pick. 402; Churchill r. White, 58 Xeb. 22: Freeman v. Boland, 14 R. T. 39; Towne v. Wiley, 33 Vt. 355 ; Ray r. Tubbs, 50 Vt. 688. Contra. Wilt r. Welsh, C Watts, 9; Penrose V. Curren,' 3 Rawle, 351. And see Schenks v. Strong, 1 South. 87. IXFAXTS: FALSE EEPRESEXTATIONS OF AGE. 85 tion or any other plea which he could not have pleaded when the bond was given ; but refused to decree payment of the money, holding that it could do no more than take care that the parties were restored to the same situation in which they were at the date of the bond. In Lempi'iere v. Lange, a quite recent case, it w^as held that an infant who had obtained the lease of a furnished house by representing him- self of full age could not be made liable for use and occupation, although the lease could be set aside and the infant ordered to pay the costs of the action (2). Cory *v. Gertchen. (a) shows that [78 when an infant by falsely representing himself to be of full age has induced trustees to pay over a fund to him, neither he nor his repre- sentatives can afterwards charge the trustees with a breach of trust and make them pay again.^^ Overton v. Banister (h) confirms this: it was there held, however, that the release of an infant cestui que trust in such a case is binding on him only to the extent of the sum actually received by him. The later case of ^Vriglit v. Snowe (c) seems not to agree with this, though Overton v. Banister was cited, and apparently no dissent expressed. There a legatee had given a release to the executrix, representing himself to her solicitor as of full age; afterwards he sued for an account, alleging that he was an infant at the date of the release. The infancy was not sufficiently proved, and the Court would not direct an inquiry, considering that in any event the release could not be disturbed. This appears to go the length of holding the doctrine of estoppel applicable to the class of representations in question, and if that be the effect of the decision its correctness may perhaps be doubted. There must be a positive representation. In Slikernan v. Dawson (d) the subject of infant's liability for wrongs in general is discussed in an interesting judgment by Knight Bruce V.-C. and the important point is decided that in order to establish this equitaljle liability it must be shown that the infant actually represented himself to be of full age; it is not enough that the other party did not know of his (z) (1879) 12 Ch. D. G75. Fol- (h) (1844) 3 Ha. 503. lowed on the question of costs. Woolf (c) (1848) 2 De G. & Sm. 321. V. Woolf [1899] 1 Ch. 343, 68 L. J. {d) (1847) 1 De G. & Sm. 90, 16 Ch. 82. L. J. Ch. 205. (a) (1816) 2 Madd. 40, 17 R. R. 180. 31 Haves r. Parker, 41 X. J. Eq. 630, ace. Cp. Jones r. Parker. 67 Tex. 76. In Pivan r. Growney, 125 Mo. 474, a plaintiff Avho had represented himself to be of aire when sellins: propertv was denied equitable relief. See also Charles r. Hastedt, 51 N. ' J. Eq. 171. 86 CAPACITY OF TARTILS. minority. And as there must be an actual false representation, so it has been more lately held that no claim for restitution can be sustained unless the representation actually misled the person to whom it was made. Xo relief can be given if the party was not in fact deceived, but knew the truth at the time ; and it makes no difference 79] where the business *was actually conducted by a solicitor or agent who did not know ( e ) . Proof in bankruptcy. A minor cannot be adjudicated a bankrupt in the absence of an express representation to the creditor that he was of full age. The mere fact of trading cannot be taken as a con- structive representation (/). But if a minor has held himself out as an adult, and so traded and been made bankrupt, he cannot have the bankruptcy anulled on the ground of his infancy (g) ; and a loan ob- tained on the faith of an express representation that he is of full age is a claim provable in bankruptcy (h).^^ But subsequent valid contract after full age prevails. A transaction of this kind cannot stand in the way of a subsequent valid contract with another person made by the infant after he has come of age ; and the person who first dealt with him on the strength of his representing himself as of age acquires no right to interfere with the performance of the subsequent contract (i). This is another proof that the in- fant's false representation gives no additional force to the transaction as a contract. It was also held in the case referred to that, assuming the first agreement to have been only voidable, it was clearly avoided by the act of the party in making another contract inconsistent with it after attaining his full age. But it has been decided in Ireland (as we have seen) that this is not so in the case of a lease granted by an infant; the malcing of another lease of the same property to another lessee after the lessor has attained full age is not enough to avoid {e) kelson v. Stocker (1859) 4 Ves. 265; Ex parte Bates (1841) 2 De G. & J. 458, 28 L. J. Ch. 751. Mont. D. & D. 337. if) Ex parte Jones (1881) 18 Ch. {h) Ex parte Unity Bavh (1858) 3 Div. 109. .50 L. J. Ch. 673, overruling De G. & J. 63, 27 L. J. Bk. 33; see Ex parte Lynch (1876) 2 Ch. D. 227, observations of Jessel M.R. thereon, 45 L. J. Bk. 48. 18 Ch. D. at p. 121. (jr) Ex parte Watson (1809) 16 (t) Inman v. Inman (1873) L. R. 15 Eq. 260. 32 If an infant owes debts which he cannot disaffirm, he is within the scope of the Bankruptcy Law. Re Brice. 03 Fed. Rep. 942. Cp. Farris v. Richardson, 6 Allen, 118. Otherwise not. Re Dunnigan, 95 Fed. Rep. 428; Re Eidemiller, 105 Fed. Rep. 595. MARRIED women: COMMON LAW. 87 the first lease (k). The fact that an ^interest in property and [80 a right of possession has passed by the first lease, though voidable, explains the distinction. II. Married Women. Married women can contract only as to separate property. A married woman is capable of binding herself by a contract only " in respect of and to the extent of her separate property " (l). This limited capac- ity is created by a statute founded on the practice of the Court of Chancery, which for more than a century had protected married wo- men's separate interests in the manner to be presently mentioned. Except as to separate property the old common law rule still exists, though with greatly diminished importance. That rule is that a married woman cannot bind herself by contract at all. If she attempts to do so " it is altogether void, and no action will lie against her husband or herself for the breach of if (m).^^ And the same consequence follows as in the case of infants, namely, that although a married woman is answerable for wrongs committed by her during the coverture, including frauds, and may be sued for them jointly with her husband, or separately if she survives him, yet she cannot be sued for a fraud where it is directly connected with a contract with her, and is the means of eifecting it and parcel of the same transaction, e. g., where the wife has obtained advances from the plaintiff for a third party by means of her guaranty, falsely representing herself as sole {m) ; but it is doubtful whether this ex- tends to all cases of false representation by which credit is ob- tained (?;). For the same reason — that the law will not allow the contract to l)e indirectly enforced — a married *woman is [81 not estopped from pleading coverture by having described herself as sui iuris (o).^^ The fact that a married woman is living and trading apart from (k) Slator V. Brady (1863) 14 Ir. (n) Wright v. Leonard (1861) 11 0. L. Ren. 61, supra, p. *57. C. B. N. S. 258, 30 L. J. C. P. 365, (I) Married Women's Property where thei Court was divided. Act, 1882, 45 & 46 Vict. c. 75, s. 1. (o) Cannam v. Farmer (1849) 3 (m) Per Cur. Fairhurst v. Liver- Ex. 698. pool Adelphi Loan Association (1854) 9 Ex. 422, 429, 23 L. J. Ex. 164. 33 Bank v. Partee, 99 U. S. 325, 330; Re Comstock, 11 K B. R. 169, 181; Prentiss r. Paisley, 25 Fla. 927 ; Frazee r. Frazee, 79 Md. 27 ; Tracy v. Keith, 11 Allen, 214; Flesh v. Lindsay, 115 Mo. 1, 13; Keen v. Hartman, 48 Pa. 497; Woodward V. Barnes, 46 Vt. 332. See also Earle r. Kingscote, [1900] 1 Ch. 203, 2 Ch. 585. 34 7?c Comstock, 11 N. B. R. 169, 181; Kilbourn v. Brown. 56 Conn. 149; Lovering r. Shockey, 100 Ind. 558; Coats r. Gordon. 144 Ind. 19: Lowell v. Daniels, 2 Gray, 161; Keen i\ Coleman, 39 Pa. 299; Klein v. Caldwell, 91 88 CAPACITY OF TARTIES. her husband does not enable her at common law to contract so as tO' give a right of action against herself alone (p).^ Nor does it make (p) Clayton v. Adams (1796) 6 T. R. GOo. Pa. 140, 144; Mason v. Jordan, 13 R. I. 193. See also Houseman v. Grossman, 177 Pa. 453. Contra, Reis v. Lawrence, 63 Cal. 129; Hand v. Hand, 68 Cal. 135; Patter- son V. Lawrence, 90 111. 174; as to the rule under the civil law, Henry v. Gauthreaux, 32 La. Ann. 1103. But a married woman may be bound by estoppel, not only as to her separate estate, or property held by her under statutes permitting her to contract as a feme sole. Bean i'. Heath, 6 How. 228 ; Drake v. Glover, 30 Ala. 382 ; Lathrop V. Soldiers' L. & B. Ass'n, 45 Ga. 483; Hockett v. Bailey, 86 111. 74; Nixon v. Halley, 78 111. 611; Anderson v. Armstead, 69 111. 452; Spafford v. Warren, 47 la. 47; Frazicr i\ Gelston, 35 Md. 298; Le\-y v. Grav, 56 Miss. 318; Read v. Hall, 57 N. H. 482; Bodine v. Kileen, 53 N. Y. 93; Smyth v. Munroe, 84 N. Y. 354; Xoel v. Kinnev, 106 X. Y. 74, 81; Meiley V. Butler, 26 Ohio St. 535; Tone r. Columbus, 39 Ohio St. 281, 310; Fryer v. Rishell, 84 Pa. 521; White v. Goldsberg, 49 S. C. 530 ; Howell v. Hale,' 5 Lea, 405 ; Cravens v. Booth, 8 Tex. 243; O'Brien r. Hilburn, 9 Tex. 297, but also independently thereof, Nat. Feather Duster Co. v. Hibbard, 11 Biss. 76; Ramboz v. Stowell, 103 Cal. 588; Birch V. Steppler, 11 Col. 400; Patterson v. Lawrence, 90 111. 174; Gatling v. Rodman, 6 Ind. 289; Wright v. Arnold, 14 B. Mon. 513; Rusk v. Fenton, 14 Bush, 490; Snow v. Hutchins, 160 Mass. Ill; Norton v. Nichols, 35 Mich. 148; Robb v. Shephard, 50 Mich. 189; Dobbin r. Cordiner, 41 Minn. 165; Shivers v. Simmons, 54 Miss. 520; Richardson v. Toliver, 71 Miss. 966: Rosen- thal V. Mavhngh, 33 Ohio St. 155; Cooley v. Steele, 2 Head, 605; Galbraith v. Lunsford, 87 Tenn. 89; Godfrey v. Thornton, 46 Wis. 677, 690. That a declaration by a wife at a public sale of her husband's realty that Bhe will not claim dower therein will not estop her is decided in Kelso's Ap- peal, 102 Pa. St. 7 ; that it will, in Connolly v. Branstler, 3 Bush, 702. Conduct of a wife in the presence of her husband will not ordinarily estop her, as she is presumed to be suh potestate viri. Drake v. Glover, 30 Ala. 382, 390; Carpenter v. Carpenter's Ex"rs, 27 N. J. Eq. 502; Kinsev r. Feller. 64 N. J. Eq. 367; Cla:v^on r. Rose, 87 N. C. 106; Paul v. Kunz, 188 Pa. 504. But see Davis v. Tingle, 8 B. Mon. 539. The preponderance of authority is to the effect that a married woman can- not, by estoppel, transfer title to her real estate. Drury v. Foster, 2 Wall. 24; Vansandt v. Weir, 109 Ala. 104; Wood v. Terrv, 30 Ark. 385; Morrison v. Wilson, 13 Cal. 495; Ross v. Singleton, 1 Del. Ch. 149; Oglesbv Coal Co. v. Pasco, 79 111. 170; Behler v. Weyburn, 59 Ind. 143; Unfried v. Heberer, 63 Ind. 67; Suman r. Springate, 67 Ind. 115, 121; Parks v. Barrowman, S3 Ind. 561; Rangley r. Spring, 21 Me. 130; Lowell v. Daniels, 2 Gray, 161; Pierce V. Chace, 108 Mass. 254; Todd r. Railroad Co., 19 Ohio St. 514; Innis r. Temple- ton, 95 Pa. 262; Davidson's Appeal, 95 Pa. 394; Glidden v. Strupler, 52 Pa. 400; Stivers r. Tucker, 126 Pa. 74; Mason v. Jordan, 13 R. I. 193; McLaurin r. Wilson, 10 S. C. 402; Daniel v. Mason, 90 Tex. 240. And see Merriam v. Rail- road Co., 117 Mass. 241. The principle upon which these cases are rested is that the greatest force is given to an estoppel when it is made equal to the deed of the person against whom it is invoked, and that the deed of a married woman is void. A man, it is true, can convey his land only by deed ; but its execution is only a formality, his having complied with which he may be estopped to deny. A married woman is powerless alone to convey her land; as to her sole deed there is a question, not of compliance with a formality, but of power: as she can in no way alone convey her land, it follows that she can in no way estop herself to sav that she has not conveyed it. See Collins v. Goldsmith, 71 Fed. Rep. 580. 35 High V. Worlev, 33 Ala. 196: Rogers r. Phillips. 8 Ark. 366: Fuller v. Bartlett, 41 Me. 241; Bank r. Belli?, 10 Cush. 276; Brown v. Killingsworth,. MARRIED WOMEN : COMMON LAW. 89- any difference if she is living separate from her husband under an express agreement for separation, as no agreement between husband and wife can change their legal capacities and characters (q).^^ But may acquire contractual rights. But " a married woman, though incapable of making a contract, is capable of having a chose in action conferred upon her, which will survive to her on the death of the husband, unless he shall have interfered by doing some act to reduce it into possession " : thus she might, before the Married Women's Property Act, buy railway stock, and become entitled to sue for dividends jointly with her husband (r).^^ When a third person as- sents to hold a sum of money at the wife's disposal, but does not pay it over, this is conferring on her a chose in action within the meaning of the rule (s). During the joint lives of the husband and wife the husband is entitled hire mariti to recei^■e any sum thus due; "but if the wife dies before the husband has received it, the husband, although his beneficial right remains the same, must in order to receive the money take out administration to his wife f^ and if he dies without having done so, ittis necessary that letters of administration should be taken iq) Marshall v. Riitton (1800) 8 see Williams on Executors, 1. 734 T. R. 545, 5 R. R. 448. sqq. (9th ed. ) . Widiiery v. Tepper (r) Per Cur. Dalton v. Midland (1877) 5 Cli. D. 51G,> Ch. Div. 423^ Rij. Co. (1853) 13 C. B. 474, 22 L. J. 47 L. J. Ch. 550. C. P. 177. And see 1 Wms. Saund. (s) Fleet v. Perrins (1869) L. R. 222, 223. On the question what 3 0. B. 536, 4 Q. B. 500, 38 L. J. amounts to reduction into possession, Q. B. 257. 4 McCord, 429; Freer r. ^V'alker, 1 Bailey, 184; Harris v. Taylor, 3 Sneed, 536; Robinson v. Reynolds, 1 Aikens, 174; cp. inji-a, p. 91, note (a). 30 Parker v. Lambert, 31 Ala. 89. 3" Chappelle v. Olnej', 1 Sa\\';ver, 401; Lenderman v. Talley, 1 Houst. 523; Bond r. Conway, 11 Md. 512; Hayward v. Hayward, 20 Pick. 517; Schuyler v. Hoyle, 5 Johns. Ch. 196; Searing v. Searing, 9 Paige, 283; Borst v. Spel- man, 4 N. Y. 284, 288; Snowhill i: Snowhill, 2 X. J. Eq. 30, 36; Revel v. Revel, 2 Dev. & Bat. L. 272; Weeks r. Weeks, 5 Ired. Eq. Ill; Hoop v. Plum- mer, 14 Ohio St. 448; Wilder r. Aldrich, 2 R. I. 518; Johnson v. Lusk, & Coldw. 113. Contra, Edwards r. Sheridan, 24 Conn. 1G5. 3S Willis r. Roberts, 48 Me. 257 ; Jenkins r. Frever, 4 Paige, 47 ; Dawson r. Dawson, 2 Strobh. Eq. 34; Hardin v. Young, (fenn.) 41 S. W. Rep. 1080; Contra, Greenleaf r. Hill, 31 Me. 562; Goddard v. Johnson, 14 Pick. 352; Rvder v. Hulse, 24 X. Y. 372. Tlie statutes 21 H. VIII.; 22 and 23 Car. II., cap. 10. and 29 Car. II., cap. 3, § 25, together, gave the husband the right to administer iipon his deceased wife's estate, and to take for his own benefit her chattels real, choses in action, trusts, and every species of personal property. Judge of Probate v. Chamber- lain, 3 N. H. 129. In many, perhaps in most of the United States, the statutes prevailing describe a different rule. Bishop on the Law of Married Women, §§ 172-182. 90 CAPACITY OF PARTIES. out to the ■R'ife's estate^** (for such is still the legal character of the 82] nioney), but the wife's administrator is *only a trustee for the representative of the husband" (t). Accordingly the Court of Pro- bate cannot dispense with the double administration, even where the same person is tlie proper representative of both husband and wife, and is also beneficially entitled (u). Cannot during coverture renew debt barred by Statute of Limitation. Inasmuch as according to the view established by modern decisions a promise to pay a debt barred by the Statute of Limitation operates not by way of post-dating the original contract so as to " draw down the promise " then made, but as a new contract founded on the sub- sisting consideration, a married woman's general incapacity to con- tract prevents such a promise, if made by her, from being effectual; and where before the marriage she became a joint debtor with another person, that person's acknowledgment after the marriage is also in- effectual, since to bind one's joint debtor an acknowledgment must be such as would have bound him if made by himself (x).'^^ The rules of law concerning a wife's power to bind her husband by contract, either as his actual or ostensible agent or, in some special circumstances, by a peculiar authority independent of agency, do not fall within the province of this work.*^^ Exceptions at common law. Queen consort. The wife of the King of England may sue and be sued as a feme sole (Co. Lift. 133 a). Wife of person civilly dead. The wife of a person civilly dead may sue and be sued alone {Ih. 133 h, 133 a). The cases dwelt on by Coke are such as practically cannot occur at this day, and it seems that the only persons who can now be regarded as civilly dead are persons con- 83] victed of felony, and not lawfully at *large under any (t) Per Lord Westbury, Parting- (x) Pittam v. Foster (1823) 1 B. ton V. Att.-Gen. (1869) L. R. 4 H. L. & C. 248, 25 R. R. 385; 1 Wms. 100, 119. Saund. 172. (m) In the Goods of Harding (1872) L. R. 2 P. & D. 394. 39Lockwood r. Stockholm, 11 Paige, 87, 91. 40 Axson r. Blakely, 2 McCord, G ; Farrar r. Bessey, 24 Vt. 89. 41 As to the liability imposed on the husband irrespective of authority given bv him, see Keener on Quasi Contracts, 22; Hatch v. Leonard, 165 N. Y. 435, 439. MARRIED WOMEX: COMMON LAW. 91 license (y).'^ An alien enemy, tliough disabled from suing, is not civilly dead, and his wife cannot sue alone on a contract made with her either before or during coverture; so that while he is an alien enemy neither of them can maintain an action on the contract. The remedy may thus be irrecoverably lost by the operation of the Statute of Limitation, but this inconvenience does not take the case out of the general rule (2). This decision does not expressly overrule any earlier authority (and there is such authority) (a) for the proposition that she may be sued alone. But it is conceived that such must be the result. Wife of alien not resident in the kingdom. It appears to be the result of the authorities that the wife of an alien husband who has never been or at least never resided in England may bind herself by contract if she purports to contract as a feme sole (h).'^^ Married woman trading in London. " By the custom of London, if a feme covert, the wife of a freeman, trades by herself in a trade with (1/) Transportation was considered Co. Litt. 131 6). Bracton, however, as an abjuration of the realm, which speaks of outlawry (426 b) as well as could be determined only by an actual relitjious profession (301 b) as mors return after the sentence had expired: civilis. A person under the penalties Carrol v. Blencow (1801) 4 Esp. 27. of praemunire, which include being The analogy to Coke's " Civil Death " put out of the King's protection, is discussed, arg. in Ex parte Franks would, I suppose, be in the same (1831) 7 Bing. 762. plight as an outlaw. The Roman (z) De ^Vahl v. Braune (1856) 1 mors civilis was a pure legal fiction, H. & N. 178, 25 L. J. Ex. 343. Per- introduced not to create disabilities, haps it may be doubted whether but to obviate the inconvenient re- " civil death " was ever really appro- suits of disabilities otherwise created, priate as a term of art in English (Sav. Syst. 2. 164.) As to the mort courts except "when a man entereth civile of modern French law (now into religion [i.e. a religious order abolished since 1854), see ib. 151 sqq. in England] and is professed": in (a) Derry v. Duchess of Mazarine that case he could make a will and (1697) 1 Ld. Raym. 147. appoint executors (who might be (6) Barden v. Kevcrberg (1836) 2 sued as such for his debts, F. N. B. M. & ^Y. 61, 6 L. J. Ex. 66. But the 121, 0.), and if he did not, his goods question is now of little interest, could be administered (Litt. s. 200, 42 Wilson v. King. 59 Ark. 32; Smith v. Becker, 62 Kan. 541; Averv V. Everett, 110 X. Y. 317; Re Zeph, 50 Hun, 523; Frazer v. Fulcher, 17 Ohio, 260; Davis v. Laning, 85 Tex. 39; Baltimore v. Chester, 53 Vt. 315. 43 \Yhere the husband was never within the State, or has gone beyond its ju.'isdiction wholly renouncing his marital rights and duties and deserting his wife, she mav contract, and sue, and be sued in her own name. Rhea f. Renner, 1 Pet. 105 ; Bank r. Partee, 99 U. S. 325, 330 ; Blumenberg v. Adams, 49 Cal. 308; Clark v. Yalentino, 41 Ga. 143; Smith r. Silence, 4 la. 321; Ayer r. Warren. 47 Me. 217: Gregory v. Pierce, 4 ^let. 478; Abbott r. Bavley, 6 Pick. 89 ; Phelps v. Walther, 78^ Mo. 320 ; Rosenthal r. Mavhugh. 33 Ohio St. 155 ; Wagg r. Gibbons, 5 Ohio St. 580 ; Bean v. Morgan, 4 McCord, 148 ; Rail- Avay Co. V. Hennesev, 20 Tex. Civ. App. 316: Buford r. Adair, 43 W. Va. 211. 64 Am. St. Rep. 854. Cp. Stewart v. Conrad"s Adrar., 100 Va. 128. See 26 Am. L. Reg. 745. 92 CAPACITY OF PAKTIES. ■\vhich her husband does not intermeddle, she may sue and be sued as 84] a feme sole, and the husband shall be named only for *con- formity ; and if judgment be given against them, she only 'shall be taken in execution." (Bacon, khr. Customs of London, D.) This custom applies only to the city courts (c), and even there the formal joinder of the husband is indispensable. But if acted upon in those courts it may be pleaded as matter of defence in tlie superior courts {d), though they do not otherwise notice the custom (c). Contracts with husband as to separation, &c., may be good. In certain exceptional cases in which the wife has an adverse interest to the husband she is not incapable of contracting with him. Where a wife had instituted a suit for divorce, and she and her husband had agreed to refer the matters in dispute to arbitration, her next friend not being a party to the agreement, the House of Lords held that under the circumstances of the case she might be regarded as a feme sole, that the agreement was not invalid, and that the award was therefore binding (/). The real object of the reference and award in this case having been to fix the terms of a separation, it was later held that the Court would not refuse to enforce an agreement to execute a deed of sepa- ration merely because it was made between the husband and wife without the intervention of a trustee (g).'^'^ In the simpler case of an agreement to live apart, with incidental j)rovisions for maintenance, the agreement does not require the inten'ention of a trustee, and the wife (apart from the ]\Iarried "Women's Property Act, which does (c) Caudellv. Shaw (1791) 4 T. R. (e) Caud^ll v. Shaw, 4 T. R. 361. 361. (f) Batcman v. Countess of Ross id) Beard v. Wchb (1800) 2 Bos. (1813) 1 Dow, 235, 14 R. R. 55. & P. 93. Since the Act of 1882 the (g) Vansittartv. Vansittart (1858) only effect of the custom, if any, 4 K. & J. 62, 27 L. J. Ch. 222; but seems to be that a married -woman the agreement not enforceable for tradincr in the City of London may other reasons; affirmed on appeal, be subject to greater personal lia- 2 De G. & J. 249,- 27 L. J. Ch. 289; bility than elsewhere. but no opinion given on this point. 44 "A parol post nuptial agreement between husband and wife, made in view of a voluntary separation, and fully executed on the part of the husband, whereby, for a consideration which, in the light of all the circumstances of the parties at the time the contract is made, is fair, reasonable, and just, the wife relinquishes all claim to a distributive share of the husband's personal estate in case she survives him, will be upheld and enforced in equity, and the inter- vention between them of a trustee is unnecessary." Garver v. Miller, Ifi Ohio St. 527; and see Daniels v. Benedict, 97 Fed. Rep. 367; Dutton r. Duttnn, 30 Ind. 452; King v. Mollohan, 61 Kan. 683; Masterson v. Masterson, 22 Kv. L. Rep. 1193; Stebbins v. Morris. 19 Mont. 115; Hendricks v. Isaacs, 117 N. Y. 411; Thomas r. Brown, 10 Ohio St. 247: Lehr r. Beaver, 8 W. & S. 102; Hut- ton V. Hutton'a Adm'r, 3 Pa. St. 100; Burkholder's Appeal, 105 Pa. 31. Tlie agreement must, however, be fair. Hungerford i\ Hungerford, 161 N. Y. 550. MARRIED WOilEX : STATUTES. 93 not apply) can sue the husband for arrears of maintenance due under it (h). It *does not follow that in such transactions a [85 married woman has all the powers of a feme sole. She has only those which the necessity of the case requires. She is apparently competent to compromise the suit with her husband (i) : but she cannot, as a term of the compromise, bind her real estate (not being settled to her separate use) without the acknowledgment required by the Fines and Eecoveries Act (1-). Statutory exceptio7is other than Married Vt'omen's Property Act. Judicial separations and protection orders. By the Act constituting the Court for Divorce and Matrimonial Causes, 20 & 21 Vict. c. 85, a wife judicially separated from her husband is to be considered whilst so separated as a feme sole for the purposes of {inter alia) contract, and suing and being sued in any civil proceeding (s. 26) (Z) ; and a wife deserted by her husband who has obtained a protection order is in the same position while the desertion continues (s. 21). This section is so worded as when taken alone to countenance the sup- position that the protection order relates back to the date of desertion. It has been decided, however, that it does not enable the wife to maintain an action commenced by her alone before the date of the order (w). Her powers of disposing and contracting apply only to property acquired after the decree for separation or the desertion (or protection order?) as the case may be {n). These provisions are extended by *an amending kct in certain particulars not material [86 to be noticed here (21 & 22 Yict. c. 108, ss. 6-9) ; and third parties are indemnified as to payments to the wife, and acts done by her with their permission, under an order or decree which is afterwards discharged or reversed (s. 10). The words as to "suing and being (h) McGregor \. McGregor (1888) v. Hiurgeon (1876) 2 Ch. Div. 318, 21 Q. B. Div. 424, 57 L. J. Q. B. 591. 45 L. J. Ch. C33. (i) Rowley v. Roioley (1866) L. R. (m) Midland Rx). Co. v. Pye (1861) 2 Sc. & D. 63. 10 C. B. X. s. 179, 30 L. J. C. P. 314. (A-) Cahill V. Cahill (1883) 8 App. («) Waite v. Morland (1888) 38 Ca. 420. Ch. Div. 135, 57 L. J. Ch. 655; Hill (I) The same consequences follow v. Cooper [1893] 2 Q. B. 85, 62 L. J. a fortiori on a dissolution of mar- Q. B. 423, C. A. As to the combined riage, though there is no express en- effect of this Act and s. 4 of the actment that they shall : Wilkinson iMarried Women's Property Act, 1882, V. Gibson (1867) L. R. 4 Eq. 162, 36 in making property subject to a mar- L. J. Ch. 646 ; see also, as to the ried woman's disposing power assets divorced wife's rights. Wells v. ]\Ial- for the pavment of her debts, see Re Ion (1862) 31 Beav. 48, 31 L. J. Ch. Hughes [1898] 1 Ch. 529, 67 L. J. 344; Fitzgerald v. Chapman (1875) Ch.' 279, C. A, 1 Ch. D. 563, 45 L. J. Ch. 23 ; Burton 94 CAPACITY OF PARTIES. sued " in this section arc not confined by the context to matters of property and contract, but are to be liberally construed : a married ■woman who has obtained a protection order may sue in her own name for a libel (o). Equitable doctrine of separate estate. In the eighteenth century, if not earlier, the Court of Chancery recognized and sanctioned the practice of settling property upon married women to be enjoyed by them for their separate use and free of the husband's interference or control. To this was added, towards the end of that century, the curious and anomalous device of settling jDroperty in trust for a married woman " without power of cnticipation," so that she cannot deal in any way with the income until it is actually payable. During the nineteenth century a doc- trine was elaborated, not without difficulty and hesitation, under which a married woman having separate property at her disposal (not sub- ject to the peculiar restraint just mentioned) might bind that property, though not herself personally, by transactions in the nature of contract. Some account of this doctrine is given for reference in the Appendix, as being useful, if not necessary, for the full under- standing of the modern law. It should be observed that restraint on anticipation, being allowed 87] only for the purpose of protecting the fund *as capital, does not apply to income of the fund when it reaches the married Avoman's hands, or the hands of some person from whom she can immediately demand it. The income so paid or pa^'able is ordinary separate property, and therefore on principle not exempt from the subsequent claims, equitable or statutory, of the married woman's creditors (p). The Married ^V omen's Property Act. 45 & 46 Vict., c. 75. The provisions of the Married Women's Property Act, 1882, extended by an amending Act of 1893, are so much Tvdder that they may be described as a new body of law, consolidating and superseding the results of many cases in equity as well as the previous (0) Ramsden v. Brcarlcy (1875) Whifclcif v. Edwards [1896] 2 Q. B. L. R. 10 Q. B. 147, 44 L. J. Q. B. 46. 48, C5 L. J. Q. B. 457, C. A.; this She can give a valid receipt for a principle seems to have been over- legacy not reduced into possession looked by the C. A. in construing the before the date of the order: Re Act of 1893 in Barnett v. Eoimrd Cou-ard & Adam's Purchase (1875) [1900] 2 Q. B. 784. 69 L. J. Q. B. L. R. 20 Eq. 179. 44 L. J. Ch. 384. 955. See Mr. T. Cyprian Williams's (p) See Hood Barrs v. Heriot remarks in L. Q. R. xvii. 4. [1896] A. C. 174, 65 L. J. Q. B. 352; MARRIEI women's PROPERTY ACT. 95 Acts of 1870 and 1874, which this Act repealed. The law, as now declared, is to this effect : Separate property is (i) Property acquired by any married woman after January 1, 1883, including earnings (q) : (ii) Property belonging at the time of marriage to a woman marrying after January 1, 1883 (r). Special trusts created in favour of a married woman by will, set- tlement or otherwise, are not affected by the Act (s). Subject to any settlement (t), ?i married woman can bind herself by contract "in respect of and to the extent *of her separate [88 property," and can sue and be sued alone (u). Damages and costs, if recovered by her, become her separate prop- erty; if against her, are payable out of her separate property and not otherwise (x). A married woman trading alone can be made bank- rupt in respect of her separate property (?/). A contract made by a married woman (i) Is deemed to be made with respect to and to bind her separate property (z), and, if made since 5 Dec. 1893, whether or not she has any separate property at the date of the contract {a) : {q) Ss. 5, 25. Property falling do not give any greater power of dis- into possession since the Act under posal than is given by the specific a title acquired before it is not in- words of ss. 2 and 5, with which s. 1 eluded: Reid v. Reid (1886) 31 Ch. must be read: Re Cuno, Mansfield Div. 402, 55 L. J. Ch. 294. v. Mansfield (1889) 43 Ch. Div. 12, (r) S. 2. 62 L. T. 15. (s) S. 19, which "prevents the {x) S. 1, sub-s. 2. previous enactment from interfering (y) S. 1, sub-s. 5. An unexecuted with any settlement which would general power of appointment is not have bound the property if the Act " separate property," and a married had not passed": Cotton L.J. Han- woman cannot be compelled to exe- cock V. Hancock (1888) 38 Ch. Div. cute such a power for the benefit of 78, 90, 57 L. J. Ch. 396. This pro- her creditors: Ex parte Gilchrist vision covers both s. 2 and s. 5. See (1886) 17 Q. B. Div. 521, 55 L. J. Buckland v. Bucklnnd [1900] 2 Ch. Q. B. 578. S. 19 does not prevent 534, 69 L. J. Ch. 648. property to which she is entitled [t) See Stonor's Trusts (1883) 24 under a settlement, without restraint Ch. D. 195, 52 L. J. Ch. 776. on anticipation, from passing to the (u) As to the retrospective opera- trustee in bankruptcy: Ex parte tion of the Act with regard to power Boijd (1888) 21 Q. B. Div. 264, 57 to sue on a cause independent of con- L- J- Q- ^- 553. tract, see Weldon V. Winsloiv (1884) (c) Formerly there was no such 13 Q. B. Div. 784, 53 L. J. Q. B. 528. presumption unless she was living As to liability on causes independent apart from her husband. See Appen- of contract, Whittaker v. Kershaw dix, Note C. (1890) 45 Ch. Div. 320, 60 L. J. (o) 56 & 57 Vict. c. 63. Ch. 9. The general words of s. 1 ( 1 ) -96 CAPACITY OF PARTIES. (ii) If SO made and Ijinding, binds her after-acquired separate property (b), provided, as to contracts of earlier date than 5 Dec. 1S93, that there was some separate property at the date of the contract (c). A married woman's separate property is liable for her ante-nuptial debts and obligations (d). She is also liable at common law for such debts, and judgment may go against her personally (e). She cannot avoid this liability l)y settling the property on herself without 89] power of anti*cipation (f). As to women married before Jan- uary 1, 1883, such liability applies only to separate property acquired by tiiem under the Act (g). The Act contains other provisions as to the effect of the execution of general powers by will by married women (7i), the title to stocks and other investments registered in a married woman's name either solely or jointly (i), the effecting of life assurances by a married woman, or by either husband or wife for the benefit of the family (;), procedure for the protection of separate property (A-), and other matters which belong more to the law of Property than to the law of Contract. It is not expressly stated Ijy the principal Act whether on the termination of the coverture by the death of the husband, or by divorce, a married woman's debts contracted during the coverture with respect to her separate property do or not become her personal debts; but it has been assumed that they do {I), and the Act of 1893 expressly makes this the rule for contracts subsequent to its date (»0- If not, the only remedy would be against her separate property which existed as such during the coverture, and was not subject to restraint on anticipation (n), so far as it could still be identified and followed. The Act does not remove the effects of a restraint on anticipation. A married woman's creditor is not enabled to have execution or any (h) 56 & 57 Vict. c. 03. ss. 1, 4. (7i) Re Ann [1894] 1 Ch. 549, 63 (c) Htogdon v. Lee [1891] 1 Q. B. L. J. Ch. 334. 661, 60 L. J. Q. B. 669, C. A. (i) Ss. 6-10. (d) S. 13. This liability is at least (;) S. 11. doubtful in cases not under the Act: (k) (3. 12. see Note C. As to the Act of 1870, (7) Harrison v. Harrison (1888) Axford V. Reid (1889) 22 Q. B. Div. 13 P. Div. 180; Leak v. Driffield 548, 58 L. J. Q. B. 230. (1889) 24 Q. B. D. 98. (e) Rohinso7i, King & Co. v. Lynps (m) 56 & 57 Vict. c. 63, s. 1 (c). [1894] 2 Q. B. 577, 63 L. J. Q. B. (n) Pelton Bros. v. Harrison 759. [1891] 2 Q. B. 422, 60 L. J. Q. B. (f) S. 19. 74, C. A. (g) See note (d), last page. MARRIED women's PROPERTY ACT. 97 incidental remedies against property subject to such restraint (o) ; though this affects only the remedy, not the cause of action (p). But the i\ct of *1893 gives power to order costs to be paid out of such [90 property (q) in any action or proceeding instituted by or on behalf of a married woman (r). It was settled under the Act of 1882, after some difference of judicial opinions, that income of separate property subject to restraint on anticipation is, when paid or accrued due, " free money " and liable to satisfy a judgment not of prior date to the date of such income becoming payable (s). It has since been held that s. 1 of the Act of 1893 has the effect of abrogating this rule, and protecting the income actually payable from separate property which was sub- ject to restraint on anticipation at the date of the contract, even if the restraint on the capital has been removed by the cessation of the coverture before the date of the judgment : but the soundness of this decision appears exceedingly questionable (t), and it is practically certain that the result is in any case foreign to the intention of the Act. A married woman cannot free herself from a restraint on anticipa- tion attached to any property held for her separate use by any act of her own, whether in the nature of admission, estoppel, or otherwise (u). Where the surviving husband of a married woman takes her separate estate iure mariii, he is at once her " legal personal representative " for the purposes of the Act, and liable to her creditors to the extent of that separate estate {x). *0n the other hand the Act does not exclude such equitable [91 rights and remedies against a married woman's separate estate as were previously recognized. Where a married woman carries on a separate business, her husband can sue her for advances made during the (o) Draycott v. Harrison (1886) or other steps taken in a cause by a 17 Q. B. D. 147. But he may when married woman who is a defendant: the restraint is removed by the hus- but it does apply to a counterclaim band's death: Briggs v. Ryan [1899] by her: Hood Barrs v. Cathcart 2 Ch. 717, 68 L. J. Ch. 663 — at any [1895] 1 Q. B. 873, 64 L. J. Q. B. rate a trustee in bankruptcy may: ib. 520. (p) Whittaker v. Kershaw (1890) (s) Hood Barrs v. Heriot [1896] 45 Ch. Div. 320, 327, 60 L. J. Ch. 9. A. C. 174, 65 L. J, Q, B. 352. iq) 56 & 57 Vict. c. 63, s. 2. S. 1 {t) Barnett v. Howard [1900] 2 does not make such property liable to Q. B. 784, 69 L. J. Q. B. 955 ; see satisfy a contract. See the proviso. p. 87, above. (r) Hood Barrs V. Cathcart \_\^M] (u) Bateman r. Faber [1898] 1 3 Ch. 376, 63 L. J. Ch. 793, C. A. ap- Ch. 144, 67 L. J. Ch. 130, C. A. proved. Hood Barrs v. Heriot [1897] {cc) S. 23 of the principal Act, as A. C. 177, 66 L. J. Q. B, 356. This applied in Surman v. Wharton [1891] does not apply to motions, appeals, 1 Q. B. 491, 60 L. J. Q. B. 233, 7 98 CAPACITY OF PARTIES. coverture for the purposes of that business (y), on the general prin- ciple that in respect of her separate estate she is treated as a feme sole. And it may still be possible in some cases not within the Act to enforce a married woman's contract by means of the equitable doctrine of imperfect exercise of a power (z). With regard to a husband's liability for his wife's ante-nuptial debts, the Court of Appeal has decided in a considered judgment that it is distinct, and not merely a joint liability with the wife's separate estate; but that, for the purposes of the Statute of Limitation, there is not a distinct cause of action accruing against the husband at the date of the marriage (a).^^ III. Lunatics and Drunken Persons. It will be convenient to consider these causes of disability together, since in our modem law drunken men (so far as their capacity of contracting is affect-ed at all) are on the same footing as lunatics. Old law as to lunatics. The old law as to a lunatic's acts was that he could not be admitted to avoid them himself, though in certain cases the Crown, and in other cases his heir could (h). Even the fact of a defendant having been found lunatic by inquisition was not conclusive as against a plaintiff who was not present at the inquisition (c). A lunatic who has lucid intervals has apparently always been held 92] capable of ^contracting (among other acts) during such inter- vals (d). The marriage of a lunatic is void,'*^ and the same degree {y) Butler v. Butler (1885) 16 (b) See the judgment of Fry L.J. Q. B. Div. 374, 55 L. J. Q. B. 55. in Imperial Loan Co. v. Stone [1892] iz) See per Fry L.J. Ex parte 1 Q. B. at p. 601. Gilchrist (1886) 17 Q. B. Div. at (c) Hall v. Warren (1804) 9 Ves. p. 532. 605, 609. 7 R. R. at p. 308. (a) Beckv. Pierce (1889) 23 Q. B. (d) Beverley's case (1603) 4 Co. Div. 316, 58 L. J. Q. B. 516. Rep. 123 b; Hall v. Warren, last note. 45 In the various States of America statutes have been passed enlarging the rights of a married woman to contract and to acquire property. Tliese stat- utes are summarized in 1 Parsons on Contracts, (9th ed.) 417 et seq. 46Rawdon r. Rawdon, 28 Aia. 565: Bell r. Bennett, 73 Ga. 784; Medlock r. Merritt, 102 Ga. 212; Pyott v. Pyott. 191 111. 280; Powell v. Powell, 18 Kan. 371; Jenkins v. Jenkins' Heirs, 2 Dana, 102; Middleborough v. Rochester, 12 Mass. 363; Ward r. Dulaney, 23 Miss. 410; True v. Ranney, 21 X. H. 52; Wightman v. ^Yightman, 4 Johns. Ch. 343 ; Johnson r. Kincade, 2 Ired. Eq. 470; Crump r. Morgan, 3 Ired. Eq. 91; Sims v. Sims, 121 N. C. 297; ^Yaymire T. Jetmore, 22 Ohio St. 271; Clement r. Mattison, 3 Rich. L. 93; Foster v. Means, 1 Speer's Eq. 569. But such a marriage was held not void for every kind of insanity in Lewis T. Lewis. 44 IMinn. 124; and in Cole v. Cole, 5 Sneed. 57. it was decided that a lunatic, on regaining his senses, may, without a new solemnization, affirm a marriage celebrated Mobile he Avas insane. But see the last three cases above cited. Consult 1 Bishop, Mar. & Div., § 135, sqq. LUNACY AND DRUNKENNESS. 99 of sanity is required for marriage as for making a will or for any other purpose, though the burden of proof is on the party alleging insanity (e). Marriage, however, is a peculiar transaction, and the exceptional treatment of it in our law, though perhaps histori- cally due to the influence, in ecclesiastical Courts, of more gen- eral rules of civil or canon law, may well be justified on grounds of convenience. Liability for necessaries, &c. It is equally settled that a lunatic or his estate may be liable quasi ex contractu for necessaries supplied to him in good faith if) ;^^ and this applies to all expenses necessarily incurred for the protection of his person or estate, such as the cost of the pro- ceedings in lunacy {g)^^ A person who supplies necessaries to a luna- tic or provides money to be expended in necessaries knowing him to be such can have an action against the lunatic if he incurred the ex- pense with the intention, at the time, that it should be repaid. The circumstances must be such as to justify the Court in implying an obligation to repay; there is no doubt that such an obligation may exist in a proper case (7i).^^ A husband is liable for neces- saries supplied to his wife while he is lunatic; for the wife's authority to pledge his credit for necessaries is not a mere agency, but springs from the relation of husband and wife and is not re- voked by the husband's insanity (0-^^ In fhe same way drunken- ness or lunacy would be no answer to an action for money had and (e) Hancock v. Peaty (1867) L. R. 614. As to goods sold and delivered, 1 P. & D. 335, 341, 36 L. J. Mat. Sale of Goods Act, 1893, s. 2. 57: with which Durham v. Durham (g) Williams \. Wentworth (1842) (1885) 10 P. D. 80 does not conflict 5 Beav. 325; Stedmany. Hart (1854) on this point. The statute 15 Geo. 2, Kav, 607. e. 30, is rep. by the Stat. Law Re- (h) Re Rhodes (1890) 44 Ch. Div. vision Act, 1873. 94, 59 L. J. Ch. 298. (f) Bagster v. Earl of Portsmouth (?) Read v. Leqard (1851) 6 Ex. (1826) 5 B. & C. 170, s. c. more fully, 636, 20 L. J. Ex. 309. nom. Baxter v. Earl P., 7 D. & R. 47£'x parte Xorthington, 37 Ala. 496; Davis V. Tarver, 65 Ala. 98, 102; College r. Wilkinson, 108 Ind. 314, 320; Coleman v. Frazer, 3 Bush, 300, 310; McKee's Adnrr r. Purnell, 18 Ky. L. Rep. 879; Sawyer r. Lufkin, 56 Me. 308; Kendall v. May, 10 Allen, 59; Reando ;;. Misplay, 90 Mo. 251; Sceva v. True, 53 N. H. 627; Van Horn r. Hann, 39 X. J. L. 207; Richardson r. Strong, 13 Ired. L. 106; Surles r. Pipkin, 69 N. C. 513; Hosier r. Beard, 54 Ohio St. 398, 403; La Rue v. Gilkvson, 4 Pa. St. 375. 48 Hallett r. Oakes, 1 Cush. 296 ; IMcCrillis r. Bartlett, 8 N. H. 569 ; Carter V. Beckwith, 128 N. Y. 312; In re Meares, 10 Ch. D. 552. 46 See Re Renz. 79 Mich. 216. 60 Booth r. Cottingham, 126 Ind. 431; Pearl r. McDowell, 3 J. J. Marsh. 658; Shaw v. Thompson, 16 Pick. 198. Or for his wife's funeral expenses. Re Stewart, 14 N. J. L. Jl. 244. 100 CAPACITY OF PARTIES. received, or for the price of goods fumislied to a drunken or insane 93] nian and kept by him after he had recovered his *reason: in this last case, however, his conduct in keeping the goods would be evi- dence of a new contract to pay for them (^•), There is also express authority (which one would think hardly necessary) to show that contracts made l)y a man of sound mind who afterwards becomes lunatic are not invalidated by the lunacy (/). It seems that an agency is determined by the principal becoming Id sane, except as to persons who deal in good faith with the agent in ignorance of the principal's insanity (w).^^ No intelligible reason is given for the early rule that a lunatic (or person who had been under temporary mental incapacity) should not be received "to disable his own person," and it has long been discarded. Suggestions, but only suggestions, may be found in various later cases to the effect that, on the contrary, a lunatic's acts are absolutely void. Present law: Contract voidable if the lunacy, &c., known to other party. The modern rule, however, as to the contract of a lunatic or drunken man who by reason of lunacy or drunkenness is not capable of understanding its terms or forming a rational judgment of its effect on his interests is that such a contract is voidable at his option, but only if his state is known to the other party. The de- fendant who sets up his own incapacity as a defence must prove not only that incapacity but the plaintiff's knowledge of it at the date of the contract (n).^^ (fc) Gore X. Gihson (1845) 13 M. & equity, but -without deciding -whether W. 623, 14 L. J. Ex. 151. there -was a contract at law: Niell (I) Oiven V. Davies, 1 Ves. Sr. 82. v. Morlei/ (1804) 9 Ves. 478. The (w) See Dren- v. Isunn (1879) 4 rule is apparently peculiar to the Q. B. Div. 601, 48 L. J. Q. B. 591. Common Law, and is impugned by a (n) Molton v. Camroux, in Ex. learned civilian as unjust to the Ch. (1848) 2 Ex. 487, 4 Ex. 17, 18 lunatic: Prof. Goudy, "Contracts by L. J. Ex. 68, 356; Imperial Loan Co. Lunatics," L. Q. R. xvii. 147. See V. mone [1892] 1 Q. B. 599, 61 L. J. contra Mr. Rankine Wilson, " Lunacy Q. B. 449, C. A. The same principle in relation to Contract, Tort, and had long before been acted upon in Crime," L. Q. R. xviii. 21. 51 Davis r. Lane, 10 N. H. 156 ; ^latthiessen, etc., Co. v. McMahon's Adm'r, 38 N. J. L. 536; Hill v. Day, 34 N. J. Eq. 150, 157. 52 The American law exhibits considerable conflicts on this subject. I. Some decisions hold that if a man is so drunk, idiotic, or insane as not to know what he is about his contract is absolutely void. Edwards v. Davenport, 4 McCrarv, 34; Caulkins r. Frv, 35 Conn. 170; Reinskopf r. Rogge, 37 Ind. 207: Atwell v. Jenkins. 163 Mass. 362; Burke v. Allen, 29 N. H. 106; Berkly r. Cannon, 4 Rich. L. 136; Hunter r. Tolbard. 47 W. Va. 258; Bursinger r. Bank of Watertown, 67 Wis. 75. See also Chicago, &c. Rv. v. Lewis, 109 111. 120. Similarly a lunatic's power of attorney has been held absolutely void. Dex- LUNACY AXD DRUXKEXNESS. 101 In Molton v. Camronx the action vras brought by *adminis- [94 trators to recover the money paid by the intestate to an assurance and annuity society as the price of two annuities determinable witli his life. The intestate was of unsound mind at the date of the purchase, but tlie transactions were fair and in the ordinary course of business, and his insanity was not known to the society. It was held that the money could not be recovered; the rule being laid down in the Exchequer Chamber in these terms : " The modern eases show that when that state of mind was unknown to the other contracting party, and no advantage was taken of the lunatic, the defence cannot prevail, especially where the contract is not merely executory but executed in the whole or in part, and the parties cannot be restored altogether to their original positions." ^ ter r. Hall, 15 \Yall. 9; Rigney V. Plaster, 88 Fed. Rep. 68G, D7 Fed. Rep. 12; Elias V. Enterprise Assoc, 46 S. C. 188. Contra, Williams v. Sapieha, 94 Tex. 430. Similarly a lunatic's deed also, has been held absolutely void. German Saving Soc. r. Lashmutt, 07 Fed. Rep. 399 ; Thompson r. Ne-\v England Co., 110 Ala. 400; Doughertv V. Powe, 127 Ala. 577; Wilkins r. Wilkinson, 129 Ala. 279; Van Deusen r." Sweet. 51 N. Y. 378; Farley v. Parker, 6 Oreg. 105; Estate of Desilver, 5 Rawle, 111; Rogers r. Walker, 6 Pa. St. 371. And see Dexter v. Hall, 15 Wall. 9; Edwards v. Davenport, 4 McCrary, 34; Valpey V. Rea, 130 Mass. 384; Brigham v. Fayerweather, 144 Mass. 48, II. The weight of American authority, however, does not go so far. A con- tract made by one who is drimk or of unsound mind, so as to be incapable of understanding its effect, is generally held not void, but voidable at his option. Wright r. Waller, 127 Ala. 557; Coburn r. Raymond, 76 Conn. 484; Orr v. Equitable Mortgage Co., 107 Ga. 499; Woolley V. Gaines, 114 Ga. 122; .Joest v. Williams, 42 Ind. 565; Musselman v. Cravens, 47 Ind. 1; Railwav Co. i\ Herr, 135 Ind. 591; Mansfield r. Watson. 2 la. Ill: Allen r. Berrvhill, 27 la. 534; Van Patten i\ Reals, 46 la. 62; Seaver r. Phelps, 11 Pick. 304: Car- penter V. Rodgers, 61 Mich. 384; Broadwater r. Darne, 10 Mo. 277; Ingra- ham V. Baldwin. 9 N. Y. 45; Bush v. Breinig, 11.3' Pa. 310. Or at the option of his administrator. Bunn v. Postell, 107 Ga. 490. The deed of a lunatic is thus generallv held not void but only voidable. Luhrs r. Hancock, 181 U. S. 567, 574 :'^ Woolley r. Gaines, 114 Ga. 122; Scanlan v. Cobb. 85 111. 296; Nichol r. Thomas, '53 Ind. 42; Freed r. Bro^ra, 55 Ind. 310; Schuff r. Ransom, 79 Ind. 458: Boyer v. Berriman, 123 Ind. 451; Harrison r. Otlev, 101 la. 652; Gribben v. Maxwell, 34 Kan. 8; Hovey v. Hobson. 53 Me. 451 ;" Allis r. Billings. 6 Met. 415; Riley v. Carter, 76 Md. 581; Arnold v. Richmond Iron Works, 1 Gray, 434; Gibson v. Soper, 6 Gray, 279; Howe r. Howe, 99 Mass, 88, 98; Rogers V. BlackAvell. 49 Mich. 192 'i semble) ; Moran r. Moran, 106 Mich. 8; Riggan r. Green. 80 N. C. 236; Elston v. Jasper, 45 Tex. 409. See also Hardy r Dyas. 203 111. 211; Sheehan r. Allen. 67 Kan. 712. It was held in Coburn r. Raymond, 76 Conn. 484. and Mckenzie r. Donnell, 151 Mo. 431. that in order to avoid his deed a lunatic must restore the con- sideration. But see contra. Hovey r. Hobson, 53 INIe. 451, 453: Bates r. Hyman. (Miss.) 28 South. Rep. 567. and (where he was unable to do so) Gib- son r. Soper, 6 Gray. 279; Rea r. Bishop, 41 Xeb. 202. TIL In some jurisdictions where a person drunk or insane contracts with one who is ignorant of his condition, if the contract be fair and has been exe- cuted, or so far executed that the parties cannot be replaced in statu, nno, it will be treated as bindinsr. Brndrib r. Brodrib. 56 Cal. 563: Wilder v. Weakly'3 Est., 34 Ind. 181; Fay v. Burditt, 81 Ind. 433; Copenrath v. Kienby, 102 CAPACITY OF PARTIES. The context shows that the statement was considered equally ap' plicable to lunacy and drunkenness, and the law thus stated in- volves though it does not expressly enounce the proposition that the contract of a lunatic or drunken man is not void but at most voidable. The general rules as to the rescission of a voidable con- tract are then applicable, and among others the rule that it must be rescinded, if at all, before it has been executed, so that the for- mer state of things cannot be restored : which is the point actually decided. The decision itself was fully accepted and acted on (o), (o) Beavany. M'Donnell (1854) 9 486, 495, revg. s. c. 7 Ha. 394; Elliot Ex. 309, k3 L. J. Ex. 94; Price v. v. Itice (1857) 7 D. M. G. 475, 488, Berrington (1850-1) 3 Mac. & G. 26 L. J. 821. 83 Ind. 18; Insurance Co. r. Blankenship, 94 Ind. 535, 544; Behrens v. McKenzie, 23 la. 333; Abbott r. Creal, 56 la. 175; Bokemper v. Hazen, 96 la. 221; Gribben r. Maxwell, 34 Kan. 8; Flach v. Gottschalk Co., 88 Md. 368; Shoulters i\ Allen, 51 Mich. 529; Schaps r. Lehner, 54 Minn. 208; Mat- thiessen, etc., Co. V. McMahon's Adm'r, 38 N. J. L. 537; Young v. Stevens, 48 N. H. 133; Insurance Co. v. Hunt, 79 X. Y. 541; Hosier v. Beard, 54 Ohio St. 398; Beals r. See, 10 Pa. 56; Kneedler's Appeal, 92 Pa. 428; Cooney V. Lincoln. 21 R. I. 246; Simms v. McClure, 8 Rich. Eq. 286. And this principle applies to the case of a deed made by a lunatic. Ashcraft V. De Armond, 44 la. 229; Rusk v. Fenton, 14 Bush, 490; Yauger r. Skinner, 14 N. J. Eq. 389; Riggan v. Green, 80 N. C. 236. Contra, Nichol v. Thomas, 53 Ind. 42; Hovey v. Hobson, 53 Me. 451, 55 Me. 256, 275; Bates r. Hvman, (Miss.) 28 South. Rep. 567; Gilgallon r. Bishop, 46 N. Y. App. Div.' 350; Crawford v. Scovell, 94 Pa. 48. The cases last cited, in which, it is submitted, the question did not fairly arise, are based upon Gibson r. Soper, 6 Gray, 279, where it was held that " an insane person or his guardian may bring an action to recover land of which a deed was made by him while insane, which deed has not since been ratified or affirmed, without first restoring the consideration to the grantee." But it does not appear in that case that the grantee was ignorant of the grant- or's lunacy. See on the other hand, Scanlan v. Cobb, 85 111. 296; Eaton v. Eaton, 37 N. J. L. 108, 117, 118. In Seaver v. Phelps. 11 Pick. 304, an action of trover for a promissory note pledged to the defendant by the plaintiff while insane, it was held not to be a defense " that the defendant at the time when he took the pledge was not apprised of the plaintiff's being insane, and had no reason to suspect it, and did not overreach him, nor practice any fraud or unfairness." But the report does not disclose the nature of the contract upon which the pledge was made. Where the consideration does not inure to the benefit of the lunatic, the contract has been held voidable, although fair in all respects, and executed by the other party in ignorance of the lunatic's condition. Insurance Co. r. Blankenship, 94 Ind. 535; College v. Wilkinson, 108 Ind. 315. But see Abbott r. Creal, 56 la. 175; Blount v. Spratt, 113 Mo. 48; Bank v. Sneed, 97 Tenn. 120. So negotiable paper executed by a lunatic is binding in the hands of an inno- cent holder for value, if the lunatic received a proper consideration therefor. Bank v. Moore, 78 Pa. St. 407; Snyder r. Laubach, (S. C. Pa.) 7 W. N. C. 464, 9 C. L. J. 496 {contra. Hosier v. Beard, 54 Ohio St. 398). but is not binding if he did not; McClain v. Davis, 77 Ind. 419; Moore v. Hershey, 90 Pa. St. 196; Wirebach v. Bank, 97 Pa. 543. Drunkenness of the maker was held no defense to a note in the hands of a hona fide holder in Caulking v. Fry. 35 Conn. 170; Miller v. Finlev, 26 Mich. 249; Bank r. McCoy, 69 Pa. St. 204; McSparran r. Neeley, 91 Pa. St. 17. Insanity of the indorser at the time of the indorsement has been held to be a LUNACY AND DRUNKENNESS. 103 though the merely voluntary acts of a lunatic, e. g., a voluntary disentailing deed (a class of acts with which we are not here con- cerned) remain invalid {p). Development of the doctrine: Matthews v. Baxter. The complete ju- dicial interpretation of the result of Molton v. Camroux (q) was given in MatthciV'S v. Baxter (r). The declaration was for breach of contract in not completing a purchase: plea, that at the time of making the alleged contract the defendant was so drunk as to be incapable of *transacting business or knowing what he was about, [95 as the plaintiif well knew: replication, that after the defendant became sober and able to transact business he ratified and confirmed ihe contract. As a merely void agreement cannot be ratified,^^ this neatly raised the question whether the contract were void or only voidable: the Court held that it was only voidable, and the replica- tion therefore good.'^'* Imperial Loan Co. v. Stone. In Imperial Loan Co. v. Stone (s) a defendant sued on a promissory note set uf» the defence of insanity at the time of making the note. The jury found that he was insane Tvhen he signed the note, and could not agree whether the plaintiffs' agent, then present, knew of his insanity or not. It was held that tliis could not be taken as a verdict for the defendant, but there must be a new trial. The Court was unanimous, and the decision may be taken as finally settling the law if there was still any room for doubt. It also shows that a distinction formerly suggested between executed :and executory contracts is not tenable. The special doctrine of our Courts with regard to partnership (M'hich is a continuing contract) is quite in accordance with this : it has long been established that the insanity of a partner doe« not ■of itself operate as a dissolution of the partnership, but is only a ground for dissolution by the court.^*^ (p) Elliot V. Ince, last note. Q. B. 449, C. A. It does not appear (q) Note (n) last *page. from the argument as reported how (r) (1873) L. R. 8 Ex. 132, 42 counsel for the defendant dealt with L. J. Ex. 73. Molton v. Camroux, which was bind- (s) [1892] 1 Q. B. 599, 61 L. J. ing on the Court. defense to the maker of a note at the suit of the indorsee. Burke v. Allen, 29 N. H. 106; Peaslee v. Robbins, 3 Met. 164 (explained in Carrier v. Sears, 4 Allen, 336) ; Hannahs v. Sheldon, 20 Mich. 278. 53Spence r. Wilmington Cotton Mills, 115 N. C..210. 54 Oakley V. Shelley, 129 Ala. 467; Hawley v. Howell, 60 la. 79; Arnold V. Richmond Iron Works, 1 Gray, 434; Carpenter v. Rodgers, 61 Mich. 384. 55 Raymond v. Vaughan, 128 111. 256. But it was held in Isler v. Baker, 6 Humph. 85, that an inquest of lunacy found against one partner dissolved the partnership ipso facto. 104 CAPACITY OF PARTIES. Partial delusions compatible with capacity for contracting. It is to be noted that the existence of partial delusions does not necessarily amount to insanity for the purposes of this rule. The judge or jury, as the case may be, must in every case consider the practical question whether the party was incompetent to manage his own affairs in the matter in hand (t).^ 96] *IV. Convicts, etc. Disability of convicts. At common law convicted felons (as also outlaws) could not sue, but remained liable to be sued, on contracts made by them during outlawry or conviction (u). Since the Act to abolish forfeitures for treason and felony, convicts are incapable of suing or making any contract, except while they are lawfully at large under any licence (x).^'^ Alien enemies. Alien enemies, as we have seen above, are disabled from suing in an English Court even if the cause of action arose in time of peace (y),^^ but not from binding themselves by contract during war between their country and England, nor from enforcing such a contract after the war. has ceased (2),^^ unless meanwhile the right of action has been barred by the Statute of Limitation. (t) Jenkins v. Morris (1880) 14 (x) 33 & 34 Vict. c. 23, ss. 8, 30. Ch. Div . G74; compare remark of (y) Le Bret v. Papillon (1804) 4 Bramwell L.J. in Drew v. yiinii East, 502, 7 R. R. 618. (1879) 4 Q. B. Div. at p. C69, 48 (z) De Walil v. Braune (1856) 1 L. J. Q. B. 591. H. & X. 178, 25 L. J. Ex. 343: note (u) Dicey on Parties, 4. (z), ante, p. *83. 56 In the absence of fraud, mere drunkenness or lack of mental capacity is. not enough to make the transaction voidable, unless it be so great as to render the person affected incapable of understanding the effect of the transaction. Bates v. Ball, 72 111. 108; English v. Porter, 109 111. 285; Harbison v. Lemon, 3 Blackf. 51; Jenners v. Howard, 6 Blackf. 240; Wil- cox V. Jackson, 51 la. 208; Lassiter's Adni. v. Lassiter's Ex., 23 Kv. L. Rep. 481; Hovey v. Hobson, 55 Me. 256; Hovey v. Chase, 52 Me/304; Johns V. Fritchcy, 39 Md. 258; Farnham v. Brooks, 9 Pick. 212, 220; Wright V. Fisher, 65 Mich. 275; Dennett r. Dennett. 44 N. H. 531; Lozear V. Shields, 23 N. J. Eq. 509; Eaton r. Eaton, 37 X. J. L. 108, 113; Odell r. Buck, 21 Wend. 142; Cooney v. Lincoln, 21 R. I. 246; Wells v. Houston, 23 Tex. Civ. App. 629; Miller v. Rutledge, 82 Va. 863. 57 See Est. of Xerac, 35 Cal. 392. M Whelan v. Cook. 29 :\rd. 1 ; Sanderson r. Morgan. 39 X. Y. 231. 59 Kershaw v. Kelsey, 100 Mass. 561; Bro\\Ti v. Gardner, 4 Lea, 145. AGENCY. 105 PART II. Extension of powers. "We now come to the extensions by special in- stitutions of the ordinary joower of making contracts. And first of agency. I. Agency. Analysis of contracts by agent. We have not here to do with the re- lations created between 2:)rincipal and agent by agency regarded as a species of contract, but only with the manner in which rights and duties accrue to the principal through the dealings of the agent. We must also distinguish cases of real agency from those where the agency is apparent only, and we shall further notice, for the sake of completeness, the position of the true or apparent agent as regards third persons. *A person who contracts or professes to contract on behalf of a [97 principal may be in any one of the following jDositions : 1. Agent having authority (whether at the time or by subse- quent ratification) to bind his principal. (A) known to be an agent (a) for a principal named; (/5) for a principal not named. (B) not known to be an agent (a). 2. Holding himself out as agent, but not having authority to bind his principal. (A) where a principal is named (a) who might be bound, but does not in fact au- thorize or ratify the contract; (jS) who in law cannot be bound. (B) where the alleged principal is not named. Authority of agent, its constitution and termination. 1. As a rule an agent may be appointed without any special formality; though an agent to execute a deed must himself be appointed by deed, and in certain cases the appointment is required by the Statute of Frauds to be in writing. Eevocation of an agent's authority takes place either by the principal's actual withdrawal of his will to be represented by the agent (which may be known either (a) Since the cases of Oalder v. that the true leading distinction is Doiell, Fleet v. Mtirton, and Hutch- -whether the agent is known to be an inson v. Tatham (see following agent or not, rather than whether notes), it may perhaps be considered the principal is named or not. 106 CAPACITY OF PARTIES. bv express declaration or by conduct manifesting the same inten- tion) or by his dying or ceasing to be sui iuris, and thus becoming incapable of continuing it {h). In these last cases the authority is said to be revoked by the act of the law. "The termination of the authority of an agent does not, so far as regards the agent, take 98] effect *before it becomes known to him, or, so far as regards third persons, before it becomes kno\An to them" (c).^° It is held in England, but anomalously, that this rule does not apply to revoca- tion by the death of the principal {d).^'^ It does apply in the case of the principal becoming insane,*^- and it may perhaps yet ho. de- cided that in the case of death the principal's estate is liable to the other party for the actual loss incurred by the principal's representa- tion — which, as regards him, was a continuing one at the date of the contract — that the agent was authorized (e). (&) On the whole subject see at 2008, 2009. and German Civil Code, large Story on Agency, §§ 474, sqq. ss. 167 — 171; and see Kent, Comm. (c) I. C. A. 208, cp. Story on 2. G46. The dissolution of a com- , Agency, § 470; Trueman v. Loder pany ha.s the same effect as the death (1840) 11 A. & E. 589, 52 R. R. 451. of a natural person: Salton v. 2\ew id) Blades t. Free (1829) 9 B. & Beeston f'ljclc Co. [1900] 1 Ch. 43, C. 167, 32 R. R. 620; Sinout v. Ilbery 69 L. J. Ch. 20. (1843) 10 M. & W. 11. Contra, (e) Drew v. Nunn (1879) 5 Q. B. I. C, A. s. 208 (Illust. c). Code Nap. Div. 661; see per Brett L.J. at p. 068. 60 Hatch V. Coddington, 95 U. S. 48; Insurance Co. r. McCain, 96 U. S. 84; Johnson v. Christian, 128 U. S. 374; Fellows r. Steamboat Co., 38 Conn. 197; Diversy v. Kellogg, 44 111.114; Ulrich v. McCormick, 66 Ind. 243; Jones v. Hodgkins, 61 Me. 480; Packer r. Hinckley Locomotive Works, 122 Mass. 484; Robertson v. Cloud, 47 Miss. 208; Beard r. Kirk, 11 N. H. 379; McXeilly v. Insurance Co., 06 X. Y. 23; Barkley r. Railroad Co., 71 N. Y. 205; Bras- well V. Insurance Co., 75 N. C. 8; Morgan v. Stell, 5 Binn. 305; Tier v. Lamp- son, 35 Vt. 179. 61 Long V. Thayer, 150 U. S. 520; Ferris V. Irving, 28 Cal. 645; Travers V. Crane, 15 Cal. 12; Lewis v. Kerr, 17 la. 73; Harper v. Little, 2 Me. 14; Marlett r. Jackman, 3 Allen. 287; Clayton v. Merrett, 52 Miss. 353; Weber v. Bridgman, 113 N. Y. 600; Farmers' Trust Co. v. Wilson, 139 N. Y. 284 ; Riggs V. Cage, 2 Humph. 350 ; Cleveland v. Williams, 29 Tex. 204 ; Davis V. Bank, 46 Vt. 728. It has been held in Alabama, however, that where an offer was mailed by an agent before his principal's death, a contract was made by acceptance of the offer after the principal's death, the death being unknown to the acceptor. Garrett r. Trabue, 82 Ala. 227; Davis v. Davis, 93 Ala. 173. And more generally it has been held " that a ho7ia fide transaction by an agent, not necessarily to be done in the name of the principal, as a deed, etc., but a matter in pais merely, done after the death of the principal, but in ignorance of the event, and within the scope of the agency, is neverthe- less, valid and binding on the representatives of the principal." Ish r. Crane, 13 Ohio St. 574; S. C, 8 Ohio St. 520. And see Dick v. Page, 17 Mo. 234; Deweese v. Muff, 57 Neb. 17; Bank v. Vanderhor.st, 32 N. Y. 553; Cassiday V. McKenzie, 4 W. & S. 282. Ish v. Crane was, however, disapproved in Mc- Claskey v. Barr, 50 Fed. Rep. 712, 714. See an article by Joseph Wilby, Esq., 19 A. L. Reg. 401. 62 Matthiessen, etc., Co. v. McMahon's Adm'r, 38 N. J. L. 536 ; Hill v. Day, 34 N. J. Eq. 150. 157; Davis v. Lane, 10 N. H. 156; Merritt v. Merritt, 43 N. Y. App. Div. 68. CONTRACTS OF AGENTS. 107 Eatification must in every case be within a reasonable time, and where a time is expressly limited within which an act must be done, and an unauthorized person purports to do it on behalf of the principal within that time, a ratification after the time has expired will not sen'e (/). Authority conferred by ratification relates back, as against the other party as well as the principal, to the date of the act done by ihe agent (g).^^ I. Agent for existing principal. In all cases where there is an au- tliorized agent dealing on behalf of a real principal, the intention of the parties determines whether the agent, or the principal, or both, are to be liable on the contract and entitled to enforce it. The question is to whom credit was really given (h).^ And *the [99 general rules laid down on the subject furnish only provisional answers, which may be displaced (subject to the rules as to admissi- bility of evidence) l)y proof of a contrary intention. A. .Known to be an agent: contract with principal ab initio. When the agent is known to 1)0 an agent, a contract is made, and knowingly made, by the other party with the principal, on which the principal is the proper person to sue and be sued.*^^ a. Principal named: agent prima facie does not contract in person. And when the principal is named at the time, then there is prima facie no contract with the agent: but when the principal is not named, then prima facie the agent, though known to be an agent, does bind himself personally, the other party not being presumed to give credit exclusively to an unknown principal (i).^^ (f) Dibbins v. Dibhins [1896] 2 bv an undisclosed principal, see p. Ch. 348, 65 L. J. Ch. 724. *i03, below. ig) Bolton Partners v. Lambert (h) Story on Agency, §§ 279 sqq. (1889) 41 Ch. Div. 29,5, .58 L. J. Ch. 288. Thomson v. Davenport (1829) 425 (see, however, the note on this 9 B. & C. 78, 32 R. R. 578; Colder v. case in Fry on Specific Performance, Dobell (1871) L. R. 6 C. P. 486, 40 3rd ed.) ; McClintocJc v. S. Penn. Oil L. J. C. P. 224. €o. [1892] 28 Am. St. Rep. 785; Re (i) But one who deals with an Tiedemann [1899] 2 Q. B. 66, 68 a,oration has no might be, by statute, the right or definite constitution and no rules duty of a corporation to remove ob- prescribing the application of its structions, and the real question here property. Such cases are sometimes was Avhether a highway board had met with: Brcncyi v. Dale (1878) 9 such a power or duty. Ch. D. 78. ' A municipal corporation is not liable for the tortious act of the oflficers or agents, where the act is wholly ultra vires in the sense that it is not within the power or authority of the corporation to act in referenc-e to the matter under an.v circumstances. Boyle v. Albert Lea, 74 Minn. 230. >> Supra, note 99. Redmond r. Dickerson, 1 Stockt. 507, 514, 515. "The directors of a corporation, even with the consent of the stockholders, are not authorized to discontinue the corporate business and to distribute the capital stock among the stockholders, unless they are specially authorized to do .so by a legislative act, or by a decree of the Court of Chancery dissolving the corporation in the manner prescribed by the statutes." Ward v. Insurance Co., 7 Paige, 294: Grant r. Southern Contract Co.. 104 Kv. 781. f»See also London Trust Co. r. Mackenzie, 68 L. T. Rep. 380: Ashton v. Dashaway Assoc, 84 Cal. 61; Railroad Co. v. Arnold, 167 X. Y. 368. CORPORATIONS. 133 lias no rights as against its unanimous members is easily exposed by putting the extreme case of the members of a corporation being by accident reduced till there is only one left, who thereupon unani- mously appropriates the whole corporate property to his own use (s). Limitation of corporate capacities by positive rules. The powers of a corporation are necessarily limited in some directions by the nature of things. There remains the question whether there are any general rules of law limiting them farther and otherwise. If our law had committed itself to the doctrine that the personality of a corporation is a mere fiction of the sovereign power, it might have been held as a natural consequence that a corporation could in no case have any powers except such as were conferred on it, expressly or by necessary implication, by the same act which created it. But this did not happen, and *the judicial discussion of the subject has been [122 evoked by the rapid growth of incorporated commercial and in- dustrial societies in modern times, and guided by reasons founded not in the nature of a corporation in itself, but in the need for safe- guarding the interests partly of the individual members of com- panies, regarded as substantially partners in a joint undertaking, and partly of outside creditors dealing with companies, and looking to their corporate funds and credit, on the faith of apparently au- thorized acts and promises of their directors or agents. These two classes of interests are to some extent opposed, and the law has not reached the fairly settled condition in which it now stands without considerable fluctuations of opinion. On these, however, it is no longer needful to dwell at length. " At common law a corporation created by the King's charter has . . . the power to do with its property all such acts as an ordinary person can do, and to bind itself to such contracts as an ordinary person can bind himself to" (t), (subject to the corporate acts being sufficient in form, which we are not considering in this place). This rests on authority which, though it seems at times to have been forgotten, has never been disputed (;/). Powers of statutory corporations determined by purposes of incorporation. But when a corporation is created directly by special statute, or indirectly by a statute authorizing the formation of a class of cor- (s) Sav. Syst. 3. 329 sqq. §§ 97- lock v. River Dee Co. (1883) 36 Ch. 99. The illustration in our text is D. 675. 685, n. given at p. *350, note, with the re- (u) Sutton's Hospital case, 10 Co. mark, " Hier ist gewiss Einstim- Rep., where it is said (at p. 30 b) migkeit vorhanden." that when a corporation is duly (t) Bowen L. J. in Baroness Wen- created, all other incidents are taciie annexed. 134 CAPACITY OF PARTIES. porations on specified conditions, for purposes declared by the stat- ute, or which the founders of tlie corporation are required to declare, then the question is different. As to powers expressly conferred on the corporation, or clearly authorized by general provisions, there can be no doubt; when farther powers are claimed, it must be con- sidered what was the intention of the Legislature, and only such 123] powers can be attributed to the ^corporation as are necessary or reasonably incident to the fulfillment of the purposes for which it is established. Members of the company have the right to rely on those purposes not being exceeded ; the public can ascertain them, and have not a»y right to hold the company liable for undertakings outside them. On the whole, " where there is an Act of Parliament creating a corporation for a particular purpose, and giving it powers for that particular purpose, what it does not expressly or impliedly authorize is to be taken to be prohibited" {x) — prohibited in the sense not that penalties or disabilities follow on such an act if done, but that the attempt to do it can from the first have no kind of validity as a corporate act. Reasons for the limitation, how derived. The reasons for this rule, as we have hinted, are derived (1) from the law of partnership: (2) from principles of public policy. 1. From partnership law. In trading corporations the relation of the memljers or shareholders to one another is in fact a modified {y) con- tract of partnership, which in view of courts of equity is governed by the ordinary rules of partnership law so far as they are not excluded by the constitution of the company. Rights of dissenting partners. Now it is a well-settled principle of partnershij) law that no majority of the partners can bind a dissenting minority, or even one dissenting partner, to engage the firm in trans- actions beyond its original scope.^*^ In the case, therefore, of a (a;)Lord Blackburn in A. G. v. (1885) 10 App. Ca. 354, 3G0, 54 L. J. O. E. Ry. Co. (1880) 5 App. Ca. 473, Q. B. 577. 481, stating the effect of Ashhury Ry. (y) Namely by provisions for Carriage and Iron Co. V. Riche transfer of shares, limited liability (1875) L. R. 7 H. L. 653, 44 L. J. of shareholders, and other things Ex. 185, a leading case on the Com- which cannot (at least with con- panies Act, 1802, but not confined to venience or completeness) be made the construction of that Act. See incident to a partnership at common Baroness Wenlock v. River Dee Co. law. 10 Abbott V. Johnson, 32 N. H. 9; Livingston r. Lynch, 4 Johns. Ch. 573; McFadden v. Leeka, 48 Ohio St. 513; Jennings' Appeal, (Pa.) 16 At. Rep. 19, CORPORATIOXS. 135 corporation whose members are as between themselves partners in -the business carried on by the corporation, any ^dissenting [124 member is entitled to restrain the governing body or the majority of the company from attempting to involve the company in an imdertaking which does not come within its purposes as defined by it.-? original constitution.^^ Courts of equity have been naturally called upon to look at the subject chiefly from this point of view, that is, as giving rise to questions between shareholders and directors, or between minorities and majorities. Such questions do not re- quire the court to decide whether an act which dissentients may prevent the agents of the company from doing in its name might not nevertheless, if so done by them with apparent authority, be binding on the corporate body, or a contract so made be enforceable by the other party who had contracted in good faith. This distinc- i;ion was not always kept in sight. Doctrine as to limited agency. But further, according to the law of partnership a partner can bind the firm only as its agent: his au- thority is prima facie an extensive one (2), but if it is specially re- (z) James L. J. Beard's case tralasia v. Breillat (1847) 6 Moo. (1870) L. R. 5 Ch. 733; Story on P. C. 152, 195; Partnership Act, Agency, §§ 124, 125, adopted by the 1890, ss. 5—8. Judicial Committee in Bank of Aus- 11 Mowrey r. Railroad Co., 4 Biss. 78 ; Byrne v. Schuyler, 65 Conn. 336 ; Cherokee Iron Co. v. Jones, 52 Ga. 27G; Harding v. American Glucose Co., 182 111. 551; Chicago v. Cameron, 120 111. 447; Knottsville Mill Co. v. JVIattingly, 18 Ky. L. Rep. 246; Stewart v. Erie, etc.. Transportation Co., 17 Minn. 348; March v. Railroad Co., 43 N. H. 515; Rabo v. Dunlap. 51 N. J. Eq. 40; Mills r. Central Railroad, 41 X. J. Eq. 1; Black v. Canal Co.. 24 N. J. Eq. 455; Elkins v. Railroad Co., 36 N. J. Eq. 5; Zabriskie v. Railroad Co., 18 N. J. Eq. 178; Kean r. Jolm&on, I Stockt. 401: Wiswall r. Plank Road Co., 3 Jones Eq. 183; Carter v. Producers' Oil Co., 164 Pa. 463; Stevens V. Railroad Co., 29 Vt. 545. But see Waldoborough r. Railroad Co., 84 Me. 469. A subscriber for stock in a corporation is released from his subscription by a subseqvient fundamental alteration of tiie organization or purpose of the corporation. Snook f. Georgia Imp. Co., 83 Ga. 61 ; McCrav r. Railroad Co., 9 Ind. 358; Banet v. Railroad Co., 13 111. 504, 511; Katama Land Co. v. Jernegan, 126 Mass. 155; Union Lock Co. v. Towne, 1 N. H. 44; Railroad Co. V. Croswell. 5 Hill. 383: Bank v. Charlotte, 85 N. C. 433; Norwich Lock Mfg. Co. V. Hockadav, 89 Va. 557. And see Tuttle v. Railroad Co., 35 Mich. 247; Marsh V. Fulton, 10 Wall. 676; Railroad Co. v. Harris, 27 Miss. 517. Unless at the time of subscription such change was provided for by the charter itself, or the general law of the State. New Buffalo v. Iron Co., 105 U. S. 73; Bates County v. Winters, 112 U. S. 325; East Lincoln r. Daven- port, 94 U. S. 801 ; Nugent r. Supervisors. 19 Wall. 241 ; Bish v. Johnson, 21 Ind. 299; Jewett r. Railroad Co., 34 Ohio St. 601. On dissolution of a corporation the majority cannot against the will of the minority insist on selling the assets to a new corporation, requiring the minority to accept shares in a new corporation or their pro rata value in jnoney. Mason r. Pewabic Mining Co., 133 U. S. 50. 136 CAPACITY OF PARTIES. strictecl b}^ agreement between the joartners, and the restriction is known to the person dealing with him, he cannot bind the finn to anything beyond those special limits. ^^ In public companies limits of directors' authority presumed to be known. Limits of this kind may be imposed on the directors or other officers of a company by its constitution; and if that constitution is em- bodied in a special Act of Parliament, or in a deed of settlement or articles of association registered in a public office under the pro- visions of a general Act, it is considered that all persons dealing with the agents of the corporation must be deemed to have notice of the limits thus publicly set to their authority.^^ The corporation is accordingly not bound by anything done by them in its name when the transaction is on the face of it in excess of the powers thus defined. And it is important to remember that in this view the resolutions 125] of meetings however numerous, *and passed by however great a majority, have of themselves no more power than the pro- ceeding of individual agents to bind the partnershi|) against the will of any single member to transactions of a kind to which he did not by the contract of partnership agree that it might be bound. Irregularities in the conduct of the internal affairs of the body corporate, even the omission of things which as between shareholders and directors are conditions precedent to the exercise of the directors' authority, will not however invalidate acts which on the face of them are regular and authorized : third parties dealing in good faith are entitled to assume that internal regulations (the observance of which 12 Radcliffe v. Varner, 55 Ga. 427 ; Knox v. Buffington, 50 la. 320 ; Cargill r. Corby, 15 Mo. 425; cp. Johnson v. Bernheim, 86 N. C. 339. isPearce r. Railroad Co., 21 How. 441, 443; Davis v. Railroad Co., 131 Mass. 258, 260; Silliman v. Railroad Co., 27 Gratt. 119, 130. In England joint stock companies may be formed by the execution of two documents, a memorandum of association, and articles of association; the former is the charter of the company, the latter define the powers of the directors as agents of the whole body of shareholders. Acts bej'ond the memorandum are acts ultra vires the company; acts of the directors beyond the articles only are but acts of agents in excess of their authority, and always capable of ratification. Ashbury Ry. Car Co. v. Riche, L. R. 7 H. L. C53 ; see 5 Am. L. Rev. 272. In this country, in some States, statutes also allow the formation of joint stock companies which are not strictly corpora- tions, though they have some of the attributes of corporations. Some of the large express companies are associations of this sort. See Hotel Co. r. Jones, 177 U. S. 449; Sanford v. Gregg. 58 Fed. Rep. 620; Gregg r. Sanford. 65 Fed. Rep. 151; Edwards V. Gasoline Works, 168 Mass. 564; Edgeworth v. Wood, 58 N. J. L. 463. An English joint stock company having the faculties and powers i-T^idcnt to a corporation will be treated as a corporation in this ronntry, al^^honrrh Acts of Parliament declare that it shall not be held to be a corporation. Insurance Co. v. Massachusetts, 10 Wall. 560. CORPORATIONS. 137 it may be difficult or impossible for them to verify) have in fact been complied with.^'* Assent of ".11 the members will remove objections on this head. But it is to be observed that in the ordinary law of partnership there is nothing to prevent the members of a firm, if they are all so minded, from ex- tending or changing its business without limit by their unanimous agreement. As a matter of pure corporation law, the unanimity of the members is of little importance: it may supply the want of a formal act of the governing body in some cases (a), but it can in no case do more. As a matter of mixed corporation and partnership law this unanimity may be all-important as being a ratification by all the partners of that which if any one of them dissented would not be the act of the firm : for although the corporate body of which they are members is in many respects different from any ordinary partnership, it is treated, and justly treated, as a partnership for (a) Even this is in strictness incorporated to them and their suc- hardlv consistent with the principle cessors by the name of X, then A + that if A, B, C &c., are B -f- C + . . . &c. are not = X. 3 i Where the authority of the officers of a corporation to bind it by their act depends upon the performance of a condition precedent, or the existence of an extrinsic fact, and the question of compliance ^vith the condition, or of the existence of the fact, is required to be determined by them, or rests peculiarly within their knowledge, their representation (which may some- times consist simply in doing the act) that the condition has been complied with, or that the fact does exist, may be relied on by one acting in good faith, and is conclusive and binding on the corporation. Commissioners r. Aspin- wall, 21 How. .539; Bissell r. Jeffersonville, 24 How. 237; Moran v. Com- missioners. 2 Black, 722; Merchants' Bank v. State Bank, 10 Wall. G04, G44; St. Joseph r. Rogers, 16 Wall. G44; Coloma v. Eaves, 92 U. S. 4R4; Commissioners r. Bolles, 94 U. S. 104 ; Commissioners r. JanuarA', 94 U. S. 202; San Antonio v. Mehaffy, 96 U. S. .312; Pana r. Bowler, 107* U. S. 529; Sherman County r. Simons, 109 U. S. 7.3.J ; Anderson Countv v. Beal, 113 U. S. 227: Gunnison Countv Comrs. v. Rollins, 173 U. S. 255;' Louisville Trust Co. r. Railroad Co.. 75 Fed. Rep. 433, 468; 174 U. S. 552; Brattleboro Bank v. Trustees. 9S Fed. Rep. 524, 532; Miners' Ditch Co. v. Zellerbach, 37 Cal. 543, 587 ; Railroad Co. r. Norwich, etc., Societj^ 24 Ind. 457 ; Common- wealth r. Savings Bank, 137 Mass. 431; Madison Co. r. Brown, 67 Miss. 684; Hackensack Water Co. r. De Kav, 36 N. J. Eq. 548; Railroad Co. v. Schuvler, 34 X. Y. 30, 73; Farnham v. Benedict, 107 X. Y. 159; Bank v. Blakeslev, 42 Ohio St. 645; Board of Supervisors V. Randolph, 89 Va. 614; Kickland r. Menasha Woodenware Co., 68 Wis. 34. Contra, Cagwin v. Town of Hancock, 84 N. Y. 532; Craig r. Town of Andes, 93 N. Y. 405. Cp. Alvord r. Syracuse Svgs. Bk., 98 X. Y. 607. But a representation of the existence of facts which the corporate officers had no authority to determine, or which are as well ascertainable by the other party as by the corporate agents, or a recital of matters of law, does not bind the corporation. Bank r. Porter ToAAmship, 110 U. S. 608: Dixon County r. Field, 111 U. S. 83; Xesbit v. Riverside Dist., 144 U. S. 610: Manhattan Co. V. Ironwood. 74 Fed. Rep. 535. 539; Geer r. School Dist.. 97 Fed. Rep. 732; Bank r. Board of Trustees, 98 Fed. Rep. 524, 533; Hopple v. Brown Township, 13 Ohio St. 311; Hopple v. Hippie, 33 Ohio St. 116; Klamath Falls r. Sachs, 35 Oreg. 325. .138 CAPACITY OF PARTIES. •this purpose. It appears, then, that the unanimous assent of the members will remove ail objections founded on the principles of 126] partnership, and will so far *leave the corporation in full pos- session of its common law powers. There are nevertheless many transactions which even the unanimous will of all the members can- not make binding as corporate acts. For the reasons which de- termine this we must seek farther. 2. Powers must not be used to defeat special purposes of incorporation. Most corporations established in modern times by special Acts of Parliament have been established expressly for special purposes the fulfilment of which is considered to be for the benefit of the public as well as of the proprietors of the undertaking, and for this reason they are armed with extraordinary powers and privileges. Whatever .a corporation may be capable of doing at common law, there is no doubt that unusual powers given by the Legislature for a special purpose must be employed only for that purpose : if Parliament em- powers either natural persons or a corporation to take J. S.'s lands for a railway, J. S. is not bound to let them take it for a factory or to let them, take an excessive quantity of land on purpose to re-sell it at a profit (&). If Parliament confers immunity for the obstruction of a navigable river In' building a bridge at a specified place, that will be no excuse for obstructing it in the like manner elsewhere. Moreover we cannot stop here. It is impossible to say that an in- 127] corporation for ^special objects and with special powers gives a restricted right of using those powers, but leaves the use of ordinary corporate powers without any restriction. The possession of extraor- dinary powers puts the corporation for almost all purposes and in almost all transactions in a wholly different position from that which (b) See Galloicay V. Mayor of ing property takes it with all its London (1866) L. R. 1 H. L. at p. 43, rights and incidents as against 35 L. J. Ch. 477 ; Lord Carington v. strangers, subject only to the duty Wycombe liy. Co. (1868) L. R. 3 Ch. of exercising those rights in good 377, 381. 37 L. J. Ch. 213. Nor may faith with a view to the objects of a company hold regattas or let out incorporation: Swindon Waterworks pleasure-boats to the inconvenience of Co. v. Wilts and Berks Canal Xaviga- the former owner on a piece of water tion Co. (1875) L. R. 7 H. L. 697, acquired by them under their Act 704, 710, 45 L. J. Ch. 638: Bonner v. for a reservoir: Bostock v. N. Staf- G. W. Ry. Co. (1883) 24 Ch. Div. 1; fordshire Ry. Co. (1856) 3 Sm. & G. and a corporation cannot bind itself 283, 292. 25 L. J. Cli. 325 : nor alien- not to use in the future special pow- ate land similarly acquired except ers which have presumably been con- for purposes authorized by the Act: f erred to be used for the public MulUner \. Mtdlnnd Ry. Co. (1879) good: Aiir Harbour Trustees V. Os- 11 Ch. D. 611, 622, 48 L. J. Ch. 258. u-ald (1883) 8 App. Ca. 623. JBut a statutory corporation acquir- COEPORATIOXS. 139 it would have held without them ; and apart from the actual exercise of them it may do many things which it was otherwise legally com- petent to do, but which without their existence it could practically never have done. Any substantial departure from the purposes con- templated by the Legislature, whether involving on the face of it a misapplication of special powers or not, would defeat the expectations and objects with which those powers were given. When Parliament, in the public interest and in consideration of a presumed benefit to the public, confers extraordinary powers, it must be taken in the same interest to forbid the doing of that which will tend to defeat its policy in conferring them; and to forbid in the sense not only of attaching penal consequences to such acts when done, but of making them wholly void if it is attempted to do them. Accordingly con- tracts of railway companies and corporations of a like public nature which can be seen to import a substantial contravention of the policy of the incorporating Acts are held by the courts to be void, and are often spoken of as mala prohibita, and illegal in the same sense that a contract of a natural person to do anything contrary to the pro- visions of an Act of Parliament is illegal (c). Others prefer to say that the Legislature, acting indeed on motives of j)ublic policy, has •simply disabled the corporation from doing acts of this class ; " to Tegard the case as one of incapacity to contract *rather than [128 of illegality, and the corporation as if it were non-existent for the purpose of such contracts" (d).^^ This appears the sounder, and is now the more generally accepted view (e).^^ (r) Blackburn J. in Tai/lor v. some means of restraining them in Chichester d Mldhurst Ri/. Co. a court of common hiw at the in- (18G7) L. R. 2 Ex. at p. 379, 39 L. J. stance of the Crown: A. G. v. G. E. Ex. 217; and (Brett and Grove JJ. Ry. Co. (1880) 11 Ch. Div. at pp. concurring) in Riche V. Ashhury Ry. 501 — 3. Carriaye Co. (1874) L. R. 9 Ex. at (e) The agreement of a third person pp. 262, 266, 43 L. J. Ex. 177. Lord to procure a company to do some- Hatherley, s. c. nom. Ashbury Ry. tiling foreign to its proper purposes Carriage' Co. v. Riche (1875) L. R. is plausibly called illegal : MacGregor 7 H. L. at p. 689. v. Dover d Deal Ry. Co. (1852) 18 id) Archibald J., L. R. 9 Ex. 293; Q. B. 618, 22 L. J. Q. B. 69; and Lord Cairns, L. R. 7 H. L. at p. 672; see per Erie J. in Mayw of Noricich Lord Selbome, ib. 694. And Bram- v. Norfolk Ry. Co. (1855) 4 E. & B. -well L.J. rather strongly disap- 397. 24 L. J. Q. B. 105; but it is proved of calling such acts illegal, really void as being the promise of pointing out that if they were prop- a performance impossible in law (Ch. erly so called there would have been VIII., below). 15 Bath Gas Light Co. r. Claffy, 151 N. Y. 24. i" Corporations may exercise all such powers as are expressly conferred upon them, and all others which are necessary to the exercise of those ex- pressly conferred; and "necessary" is to be taken not in the sense of ''in- dispensable " but of " reasonably incidental." Atty.-Genl. v. Railway Co., 5 140 CAPACITY OF PARTIES. Interest of the public as investors. There is another consideration of a somewhat similar kind which applies equally to what may be called public companies in a special sense — i.e., such as are invested with special powers for carrying out defined objects of public interest — and ordinary joint-stock companies which have no such powers. The App. Ca. 473, 478, 481; Foster i: London, etc., Ry. Co., [1895] 1 Q. B. 711; Railroad Co. v. Union Steamboat Co., 107 U. S. 98, 100; Fort Worth City Co. V. Smith Bridge Co., 151 U. S. 294, 301; Railway Co. v. Hooper, 160 U. S. 514; Union Pac. R. Co. v. Chicago, etc., R. Co., 1G3 U. S. 504; Colorado Springs Co. v. American Pub. Co., 97 Fed. Rep. 843, 849; Schofield v. Bank, 97 Fed. Rep. 283; Jewelers' Pub. Co. v. Jacobs, 109 Fed. Rep. 509; Galena V. Corinth, 48 111. 423; People v. Pullman Palace Car Co., 175 Hi: 125; Miller i\ Board, etc., of Dearborn Co., 60 Ind. 162, 167 ; Thompson r. Lambert, 44 la. 239; Brown c. Wimiisimmet Co., 11 Allen, 326; Eureka Iron Works V. Bresnahan, 60 Mich. 332 ; Crawford v. Longstreet, 43 N. J. L. 325 ; Ellerman r. Chicago, etc., Co., 49 N. J. Eq. 217; Barry v. Merchants' Exchange Co., 1 Sandf. Ch. 280; Moss v. Rossie Mining Co., 5 Hill, 137; Curtis v. Leavitt, 15 N. Y. 965; Larwell v. Hanover S. F. Society, 40 Ohio St. 274, 282; Gas & Fuel Co. i: Dairy Co., 60 Ohio St. 90; Bank v. Jacobs, 6 Humph. 51.5, 525; Interior Woodwork Co. v. Prasser, 108 Wis. 557. In the United States they can be created only by the Legislature. Miners' Ditch Co. c. Zellerbach, 37'Cal. 543, 604; Stowe r. Flagg, 72 111. 397; Frank- lin Bridge Co. v. Wood, 14 Ga. 80; Atkinson v. Railroad Co., 15 Ohio St. 21, 33. And as the theory of " general capacity " of corporations is limited by the rule that corporations created by legislative enactment must be taken to be prohibited from doing any acts which amount to a substantial de- parture from the purpose of their incorporation, it would seem to make but little difference whether the theory of general or special capacities be adopted for the purpose of determining whether a given act is, or is not, ultra vires in tlie case of a given corporation. But for the purpose of determining the effect to be ascribed to tlie luiauthorized engagements of a corporation the dis- tinction between tlie doctrine which rests upon the want of capacity to do an act, and tliat which rests upon a proliibition against doing an act, thus im- pliedly admitting a capacity to do it, is important. Perhaps the strongest statement of the doctrine of special capacities is to \}e found in the case of Strauss v. Insurance Co., 5 Ohio St. GO, where it was held that a corporation, which was authorized to make and receive negotiable paper in the course of its business, having, in the execution of an unauthor- ized contract, taken by indorsement from the other party to the contract the promissory note of a third person, could not recover on the note against the maker. The court said: "The contract of indorsement, like every other, must have parties; without two parties competent to contract there can be no agreement by which the one can lose and the other acquire the title to negotiable paper. The powers and capacities of a corporation must be derived from the law of its creation or tliey do not exist. If a fair construc- tion of its charter does not confer the power it is incompetent to become a party to the contract of indorsement, and without capacity to take or hold the title. As well might a dead man, by the mere act of the indorser, be vested with the legal interest, as a corporation which only lives for the purposes and objects intended by the Legislature. Beyond those limits it has no existence, and its acts are neither more nor less than a nullity."' Cp. Ehrman r. Insurance Co., 35 Ohio St. 324. L^pon this theory every unauthorized engagement of a corporation, whether executory or wholly executed, must always remain utterly void and inoperative as a contract for want of parties; if it includes an alienation liy or to the corporation the title cannot pass for want of a grantor or grantee as the case may be. But that this metaphysical view of the limits of the capacity of corpora- COHPOEATIOXS. 141 provisions for limited liability and for the easy transfer of shares in both sorts of companies must be considered, in their modern form and extent at least, as a statutory privilege. These provisions also invest the companies with a certain public character and interest apart from the nature of their particular objects in each case, ])ut derived from the fact that they do professedly exist for particular objects. Buyers of shares and creditors have a right to assume that the company's professed objects are adhered to. By far the greater part of their capital represents the money of shareholders who have bought shares in the tions drawn from their artificial constitution, is founded in error, is shown by the coninion-law rule as laid down in the case of Sutton's Hospital, 10 Co. Rep. 30, b., infra, Appendix, n. D. A statutory and a common-law cor- poration are equally artihcial beings, alike creatures of the law, and any limi- tations upon their capacity, inherent in their nature as such artificial beings, inhere equally in both; so that if a common-law corporation is not. by reason of its artificial nature, unable to exercise powers not conferred upon it, neither is a statutory corporation. If a corporation has no existence save for the purposes for which it was created, then as no corporation was ever created for that purpose, it cannot any more tlian a " dead man " commit a tort. That in legal contemplation, as well as in fact, corporations have the capacity to and do acts not only not authorized by their charters, but ex- pressly prohibited, is shown by the fact that the law provides the remedy hy quo warranto against them for such very abuse and usurpation of power. The other, and, it is believed, the correct theory in regard to corporations is that once created they have the capacity, limited only by natural possibility, of doing any act or making any contract, but that in addition to the express prohibitions mentioned in their charters there is an implied prohibition against any corporation's doing any act or making any contract not fairly incidental to the objects for which it was incorporated. But such prohibited act or contract, when done or executed, is not necessarily always unlawful or void to all intents; the effect of the prohibition here, as with prohibitory statutes, in general {infra, pp. 397-404) is a question of construction. Thus it is held that an alienation of proj^erty, made in execution of a contract ultra vires, passes title. Smith i\ Sheelev, 12 Wall. 3.58; Revnolds v. Bank, 112 U. S. 40.5; Bank v. Matthews, 98 U. S". G21, 028; Fritts i\ Palmer, 132 U. S. 282; St. Louis, etc., Ey. Co. r. T. H., etc., Ry. Co., 14.5 U. S. 393; Lantry r. Wallace, 182 U. S. o'sO ; Railroad Co. v. Orton, Sawyer, 157; Long V. Railway Co., 91 Ala. 519; Edwards v. Fairbanks, 27 La. Ann. 449; Bank V. Butler, 157 Mass. 548; Crolley v. Railway Co., 30 Minn. 541; She- -walter v. Pirner, 55 Mo. 218; Thornton v. Bank, 71 Mo. 221: Franklin Av. German Sav. Inst. r. Board, etc., of Roscoe, 75 Mo. 408 ; Missouri Valley Land Co. v. Bushnell. 11 Neb. 192; Parish r. Wheeler. 22 N. Y. 494, 504; Mallet V. Simpson, 94 N. C. 37; Walsh r. Barton, 24 Ohio St. 28; Ehrman r. Insurance Co., 35 Ohio St. 324; Leazure v. Hillegas, 7 S. & R. 312; Banks r. Poitiaux. 3 Rand. 130: Fayette Land Co. r. Railroad, 93 Va. 274. 285; Farmers', etc.. Bank r. Railroad Co., 17 Wis. 372. But see contra, Occum r. Sprague Mfg. Co.. 34 Conn. 529; Thweatt v. Bank. 81 Ky. 1. See also Madison Ave., etc.. Church r. Bapt. Church in Oliver Street, 73 N. Y. 82. A prohibition against a corporation's making a particular contract may be accompanied by a specific penalty, such as itself to indicate that the con- tract if made shall not be held void. Bank v. Bearing, 91 V. S. 29; Fritts v. Palmer, 132 U. S. 282; Wiley r. Starbuck, 44 Ind. 298; Bank r. Hobbs, 11 Grav, 250: Bank v. Pratt. 115 Mn«s. 539: Fereuson r. Oxford Mercantile Co.,"'78 Miss. 65 ; Pratt v. Short, 79 N. Y. 437 ; Ewing v. Toledo S. B. & T. Co., 142 CAPACITY OF PAKTIES. market without any intention of taking an active part in the manage- ment of the concern, but on the faith that they know in what sort of adventure they are investing their money, and that the company's funds are not being and will not be applied to other objects than those' set forth in its constitution as declared by the act of incorporation, memorandum of association, or the like. This is not a mere repetition 129] of the objections *grounded on partnership law; the incoming 43 Ohio St. 31; Bank v. Garlinghouse, 22 Ohio St. 492; Brov/n v. Bank, 72 Pa. 209. A corporation forming ultra vires a partnership with an individual cannot ignore this, and prove against the firm in bankruptcy as a creditor. Wal- lerstein v. Ervin, 112 Fed. Rep. 124. A contract which corporations and natural persons are both forbidden to make, as where the charter of a bank forbids its loaning money at more than a certain rate of interest, and by the general law there is a similar pro- liibition applying to natural persons, will not be void when made by a cor- poration, when it would not be void if made by an individual. McLean v. Bank, 3 McLean, 587, G09; Railroad Co. v. Trust Co., 82 Fed. Rep. 124; Bank v. Harrison, .57 Mo. 503; Bank r. Nolan, 7 How. 'Miss.) 508; Bank V. Archer, 8 S. & M. 151; Bank r. Burchard, 33 Vt. 346; Bank v. Sherwood, 10 Wis. 230; contra, Orr V. Lacey, 2 Doug. (Mich.) 230; Bank v. Swayne, 8 Ohio, 257; Kilbreath v. Bates, 38 Ohio St. 187; Bank v. Owens, 2 Pet. 527; Cf. S. C. sm6. nom. Bank r. Waggoner, 9 Pet. 378. And see Tiffany v. Boat- man's Institution, 18 Wall. 375; infra, p. 400. The defense of ultra vires will generally not be suffered to prevail where' the party raising it has actually received the property or money of the other party and is trying to evade payment therefor; the party having re- ceived the money or property of the other cannot retain it and object that the corporation had no right to make the contract under which it was received. Bank v. Matthews, 98 U. S. 621, 029; Bank v. Whitney, 103 U. S. 99; Parkersburg v. Brown, 106 U. S. 487; Chapman v. County of Douglas, 107 U. S. 348; Fortier v. Bank, 112 U. S. 439; Central Transportation Co. V. Pullman Co., 139 U. S. 24; 171 U. S. 138; Railroad Co. v. Dow, 19 Fed, Rep. 388; American Bank v. Wall Paper Co., 77 Fed. Rep. 85; Sioux City Co- r. Trust Co., 82 Fed. Rep. 124; Southern B. & L. Assn. v. Casa Grande Co.. 128 Ala. 624; Argenti v. San Francisco, 10 Cal. 255; Darst v. Gale, 83 111. 130; Bradley v. Ballard. 55 111. 413; Pocock v. Lafayette Bld.sr. Assn., 71 Ind. 357; Thompson v. Lambert, 44 la. 239; Opera House Co. v. M. B. & L. Assn., 59 Kan. 65; Brunswick Co. v. U. S. Gas Fuel Co., 85 Me. 532; Chester Glass Co. r. Dewey, 16 Mass. 94; Bath Gas Light Co. v. Claffy, 151 X. Y. 24; Madi- son Av., etc.. Church v. Bapt. Church in Oliver Street. 73 N. Y. 82 ; Whitney Arms Co. r. Barlow, 63 N. Y. 62 ; Parish v. Wheeler, 22 N. Y. 494, 506 ; De Groff V. Amer. L. T. Co., 21 N. Y. 124; Indiana v. Woram, 6 Hill. 33; Steam Xav. Co. V. Weed, 17 Barb. 378; Hays v. Gaslight Co., 29 Ohio St. 330, 340; Lar- well r. Hanover S. F. Society, 40 Ohio St. 274, 285; Markley v. Mineral City, 60 Ohio St. 430; Railroad Co. v. Transportation Co., 83 Pa. 160; Wright V. Pipe Line Co., 101 Pa. 204; Bigelow v. Railway Co., 104 Wis. 109. But where a corporation has not actually received the money or property of the other party to the contract, it cannot be held liable upon a contract prohibited as being a departure from the purposes for which it was created. Thomas v. Railroad Co., 101 U. S. 71; Pearce r. Railroad Co., 21 How. 442; Franklin Co. v. Lewiston Inst, for Savings, 68 Me. 43; Davis v. Railroad Co., 131 Mass. 258; Nat. Trust Co. r. Miller, 33 N. .L Eq. 155; Nat. Park Bank r. German- American Co., 116 N. Y. 281; -Jemison r. Bank, 122 N. Y. 135; Madison Plk. Rd. Co. r. Watertown Plk. Rd. Co., 7 Wis. 59: contra to Davis f. Railroad Co.. supra, on a similar state of facts, is State Board v. Railroad Co., 47 Ind. 407. COEPOF.ATIOXS. 143 shareholder may protect himself for the future, but the mischief may- be done or doing at the time of the purchase : moreover persons other than shareholders deal with the company on the faith of its adhering to its defined objects. They are entitled to " know that they are dealing with persons who can only devote their means to a given class of objects, and who are prohibited from devoting their means to any other purpose" {g). The assent of all those who are shareholders at a given time will bind them individually, but it will not bind others (/i). If I buy shares in a company which professes to make a railway plant in England I have a right to assume that its funds are not pledged to pay for making a railM'ay in Spain or Belgium, and it is the same if dealing with it as a stranger I lend money or otherwise give credit to it. Accordingly the provisions of the Com- panies Act, 1863, are to be considered as having been enacted in the interests of " in the first place, those who might become shareholders in succession to the persons who were shareholders for the time being ; and secondl}^, the outside public, and more particularly those who might be creditors of companies of this kind"' {i). Accordingly it is settled that a company registered under the Companies Act is forbidden to enter, even with the unanimous assent of the share- holders for the time being, into a contract foreign to its objects as defined in the memorandum of association {I:)}" Inability of corporations to make negotiable instruments. It is not within our scope to discuss the particular contracts which particular (g) Lord Hatherley, L. R. 7 H. L. Co. v. Riche (1875) L. R. 7 H. L. at p. 684. 653, 44 L. J. Lx. 185. See note D. (h) See L. R. 9 Ex. 270, 291. in Appendix for some further ac- (0 Lord Cairns, L. R. 7 H. L. at count of the authorities by which the p. 667. rules were settled in the latter part (/v) Ashhury Ry. Carriage & Iron of the nineteenth century. 17 In Tliomas r. Railroad Co., 101 U. S. 71, 83, the court said of Ashbury Ry. Carriage Co. r. Riche, supra, note (A:), that it "established the broad doctrine that a contract not within the scope of the powers conferred on the corporation cannot be made valid by the assent of every one of the shareholders, nor can it by any partial performance become the foundation of a right of action. It would be a waste of time to attempt to examine the American cases on the subject, which are more or less conflicting, but we think we are warranted in saying that this latest decision of the House of Lords represents the decided preponderance of authority in this country and in England, and is based upon sound principle."' The case is also approved and followed in Pennsylvania Co. r. Railroad. 118 U. S. 290; Oregon Ry. Co. V. Oregonian R. Co.. 130 U. S. 1 : Central Transportation Co. v. Pullman Co., 139 U. S. 24: 171 U. S. 138: De La Vergue Co. r. German Sav. Inst., 175 U. S. 40; Davis r. Railroad Co., 131 Mass. 258; Xat. Trust Co. v. Miller, 33 N. J. Eq. 155; Grand Lodge, etc. v. Stepp. S. C. Pa., 17 Rep. 61; Mallorv V. Oil Co., 86 Tenn. 598. 144: CArAClTY OF PARTIES. corporate bodies have been held incapable of making. One class of contracts, however, is in a somewhat peculiar position in this respect, 130] and *requires a little separate consideration. AVe mean the contracts expressed in negotiable instruments and governed by the law merchant. As a general rule a corporation cannot bind itself by a negotiable instrument (I).^^ This is not because a corporation cannot be presumed to have power to do so, but, in the first place, because of the general rule of form that the contracts of a corpora- tion must be made under its common seal (in). It follows from this that a corpora don cannot prima facie be bound by negotiable instru- ments in the ordinary form. The only comparatively early authority which is really much to the point was argued and partly decided on this footing (n). But the corporate seal may now take the place of (I) A different rule prevails in notes, &c., -within certain limits. In the United States, where it is held Murray v. E. India Co. (1S21) 5 B. that a corporation not expressly pro- & Aid. 204, 24 Pi. R. 325, the statu- hibited from so doing may give ne- tory authority to issue bills was not gotiable promissory notes for any of disputed; a difficulty was raised as the legitimate purposes of its incor- to the proper remedy, but disposed poration. This appears more con- of in the course of argument: 5 B. venient at the present day. & Aid. 210; 24 R. R. 330. Other (m) See more as to this in the cases at first sight like these relate following chapter. to the authority of particular agents (7!-) Broughton v. Manchester Wa- to bind a corporate — or unincorpor- terworks Co. (1819) 3 B. & Aid. 1. ated — association irrespective of the 22 R. R. 278. The chief point was theory of corporate liabilities. See on the statutes giving the Bank cf note (q) next page. England exclusive rights of issuing 18 In the United States, '"' no question is better settled upon authority than that a corporation, not prohibited by law from doing so, and without any express power in its charter for that purpose, may make a negotiable promissory note payable either at a future day or upon demand, when such note is given for any of the legitimate purposes for which the company was incorporated." Moss r. Averill. 10 N. Y. 449, 457 ; Railroad Co. v. How- ard, 7 Wall. 392, 412; Grommes v. Sullivan, 81 Fed. Rep. 45; Oxford Iron Co. r. Spradley, 46 Ala. 98; Ward r. Johnson, 95 111. 215; Davis v. Building Union, 32 Md. 285; Preston v. Missouri, etc., Lead Co., 51 Mo. 43; Barry r. Merchants' Exch. Co., 1 Sandf. Ch. 280; Railway Co. r. Lynde, 55 Ohio St. 23; Bank v. Jacobs, 6 Humph. 515. Where a corporation has power to issue bills and notes under any circum- stances, a bona fide holder may rely on the presumption that they were right- fullv issued. Supervisors r. Schenk, 5 Wall. 772, 784; Lexington V. Butler, 14 Wall. 282; Todd v. Kentuckv Land Co., 57 Fed. Rep. 47: Grommes v. Sullivan, 81 Fed. Rep. 45: Xat. Loan Co. v. Rockland Co., 94 Fed. Rep. 335; Florence R. Co. v. Bank. 106 Ala. 364: Railroad Co. r. Norwich, etc.. Society, 24 Ind. 457; Bank r. Globe Works. 101 Mass. 57; American Bank v. Glucic, 68 Minn. 129; Auerbach r. Le Sueur Mill Co., 28 Minn. 291; Bank v. Mich. Barge Co., 52 Mich. 438; Bissell r. Railroad Co., 22 N. Y. 258, 289; Stoney r. Insurance Co.. 11 Paige, 635: Banking Assn. r. White Lead Co.. 35 N. Y. 505; Wright V. Pipe Line Co.. 101 Pa. 204; County of Macon V. Shores, 97 U. S. 272, 278-9. Supra, p. *124. n. 14. CORPORATIOXS. 145 signature in bills and notes (o)/^ and transferable debentures under a company's seal have been held to be negotiable (p). Thus the ob- jection of form does not seem of great importance in modern practice. The question of authority to bind the company in substance is more serious. Ordinary rules of partnership agency not applicable. It may be asked, why should not the agents who are authorized to contract on behalf of a company in the ordinary course of its business be competent to bind the company by their acceptance or indorsement on its behalf, just as a member of an ordinary trading partnership can bind the firm? There is a twofold answer. First, the extensive im- plied authority of *an ordinary partner to bind his fellows can- [131 not be applied to the case of a numerous association, whether incoi' porated or not, whose members are personally unknown to each other, and it has been often decided that the managers of such association? cannot bind the individual members or the corporate body, as the case may be, by giving negotiable instruments in the name of the concern, unless the terms of their particular authority enable them to do so by express words or necessary implication (q). In the case of a cor- poration this autliority must be sought in its constitution as set forth in its special Act, articles of association, or the like. Secondly, the power of even a trading corporation to contract without seal is limited to things incidental to the usual conduct of its business. But as was pointed out by a judge who was certainly not disposed to take a narrow view of corporate powers, a negotiable instrument is not merely evidence of a contract, but creates a new contract and a distinct cause (o) Bills of Exchange Act, 1882, s. & W. 252, 16 L. J. Ex. 112. As to 91. incorporated companies: Steele v. (p) Bechuanaland Exploration Co. Harnier (1845) 14 M. «& W. 831 (in V. London Trading Bank [1898] 2 Ex. Ch. 4 Ex. 1, not on this point) ; Q. B. 658, 67 L. J. Q. B. 987. Thompson v. Universal Salvage Co. iq) As to unincorporated joint (1848) 1 Ex. 694. 17 L. J. Ex. 118; stock companies: Ncale v. Turton Re Peruvian Rys. Co. (1867) L. R. (1827) 4 Bing. 149, 29 R. R. 531; 2 Ch. 617, 36 L. J. Ch. 864; cp. Ex Dickinson v. Valpy (1829) 10 B. & parte City Bank (1868) L. R. 3 Ch. C. 128, 34 R. R. 348; Bramah v. 758, per Selwyn L.J. The two last Roberts (1837) 3 Bing. N. C. 963; cases go rather far in the direction Bult v. Morrel (1840) 12 A. & E. of implying such a power from gen- 745; Broivn v. Byers (1847) 16 M. eral words. 19 So in the United States. Mercer County r. Haekett, 1 Wall. 83, 95; Ackley School District v. Hall, 113 U. S. 135; Lachman v. Lehman, 63 Ala. 547; Griffith v. Burden, 35 la. 138; Strauss r. United Telegram Co., 164 Mass. 130: Boyd v. Kennedy, 38 N. J. L. 146; Copper v. Mayor, 44 N. J. L. 634; Bank r. Faurot. 149 N. Y. 532; Kerr v. Corry, 105 Pa. 282; Mason V. Frick, 105 Pa. 162; Stevens v. Philadelphia Ball Club, 142 Pa. 52: American Bank r. American Wood Paper Co., 19 R. I. 149; Crawford's Ne- gotiable Instruments' Law, § 25; Green's Brice's Ultra Vires, 268, note (a). 10 146 CAPACITY OF TARTIES. of action, and " it would be altogether contrary to the principles of the law which regulates such instruments that they should be valid or not according as the consideration between the original parties was good or bad;" and it would be most inconvenient if one had in the case of a corporation to inquire " whether the consideration in respect of which the acceptance is given is sufficiently connected with the purposes for which the acceptors are incorporated" (r). 132] *The result seems to be that in England a corporation can be bound by negotiable instruments only in the following cases : — 1. When the negotiation of bills and notes is itself one of the purposes for which the corporation exists — "within the very scope and object of their incorporation " (s) — as with the Bank of England and the East India Compan}-, and (it is presumed) financial com- panies generally, and perhaps even all companies whose business wholly or chiefly consists in buying and selling (s). 2. When the instrument is accepted or made by an agent for ilie corporation whom its constitution empowers to accept bills, &c., on its behalf, either by express words or by necessary implication. The extent of these exceptions cannot be said to be very precisely defined, and in framing articles of association and similar instru- ments, it is therefore desirable to insert express and clear provisions on this head. American decisions. In the United States the Supreme Court has decided that local authorities having the usual powers of adminis- tration and local taxation have not any implied power to issue negotiable securities which will be indisputable in the hands of a hona fide holder for value (t), and has been equally divided on the question whether municipal corporations have such power (u).^^ It seems however that in American Courts a power to borrow money is (r) Per Erie C.J. Bateman v. Mid (s) Per Montague Smith J. L. R. WaZes Ry. Co. (1866) L. R. 1 C. P. 1 C. P. 512; Ex parte City Bank 499, 509, 35 L. J. C. P. 205. Rail- (1868) L. R. 3 Ch. 758. way companies are expressly forbid- {t) Police Jury v. Britton (1872) den to issue negotiable or assignable 15 Wall. 566. 572. instruments without statutory au- (u) The Mayor v. Ray (1873) 19 thority, on pain of forfeiting the Wall. 466. nominal amount of the security: 7 & 8 Vict. c. 85, s. 19. 20 The weight of authority is against their having such power. Chisholm r. Montgomery, 2 Woods, 584; Gause r. Clarksville, 5 Dillon, 165; Hopper r. Covington, 8 Fed. Rep. 779; Merrill v. Monticello, 14 Fed. Rep. 628: Insur- ance Co. v. Manning, 95 Fed. Rep. 597 ; Mayor r. Wetumka Wharf Co., 63 Ala. Cll, 625; Clark r. Des Moines, 19 la. 199; Dively v. Cedar Falls, 21 la. 56.".; Heins r. Lincoln. 102 la. 71. 78; Hackettstown ads. Swaekhammer, 37 N. .J. L. 191: Knapp v. Mayor, .^f) N. .J. L. 394: Hubbell r. Custer City, 15 S. Dak. 55. Contra, Richmond f. McGirr, 78 Ind. 192; Commonwealth v. Williamstown, 156 Mass. 70; Williamsport r. Commonwealth, 84 Pa. St. 487, where previous CORPORATIOXS. 147 held to cam^ with it as an incident the power of issuing negotiable securities (x.)^^ Estoppel and part performance apply to corporations. The common law doctrine of estoppel {y},'^ and the kindred equitable doctrine of part performance (z) ~^ apply to corpo*rations as well as to natural [133 persons. Even when the corporate seal has been improperly atfixed to a document by a person who has the custody of the seal for other purposes, the corporation may be bound by conduct on the part of its governing body which amounts to an estoppel or ratification, but it will not be bound by anything less (a).^"* The principles applied in such cases are independent of contract, and therefore no difficulty arises from the want of a contract under the corporate seal, or non- compliance with statutory forms. But it is conceived that no sort of estoppel, part performance, or ratification can bind a corporation to a transaction which the Legislature has in substance forbidden it to undertake, or made it incapable of undertaking.^'^ {x) Police Jury v. Britton, 15 fined however to cases where the cor- Wall. 566. poration is " capable of being bound (y) Wehh V. Heme Bay Commis- by the written contract of its direct- sioners (1870) L. R. 5 Q. B. 642. 39 ors as an individual is capable of L. J. Q. B. 221. being bound by his own contract in {z) Wilsoiv V. West Hartlepool writing:" per Cotton L.J. Hwh/ v. Ry. Co. (1864-5) 2 D. J. S. 475, 493, Wimbledon Local Board (1878) 4 C. per Turner L.J. 34 L. J. Ch. 241 : P. Div. at p. 62, 48 L. J. C. P. 207. Crook V. Corporation of Seaford (a) Bank of Ireland v. Evans' (1871) L. R. 6 Ch. 551; Melioimie Charities (1855) 5 H. L. C. 389: Banking Corporation v. Brougham Merchants of the Staple v. Bank of (1878-9) 4 App. Ca. at p. 169, 48 Enqland (1887) 21 Q. B. Div. 160, L. J. C. P. 12. This must be con- 57 L. J. Q. B. 418. authorities in accord with that decision are collected. The opinion of Mr. Justice Biadlev, in Mayor v. Ray, is approved in Wall v. County of Monroe, 103 U. S. 74, and Claiborne County v. Brooks, 111 U. S. 400. In the case last cited the court say, p. 410: "It is undovibtedly a ques- tion of local policy with each State what shall be the extent and character of the powers which its various political and municipal organizations shall possess ; and the settled decisions of its highest courts on this subject will be regarded as authoritative by the courts of the United States; for it is a question that relates to the internal constitution of the body politic of the State." So Loeb r. Trustees, 179 U. S. 472, 492; Wilkes Co. v. Coler, 180 U. S. 506, 531. See further Dillon, Municipal Corp., § 117 sqq. ^^ Supra, p. *129, n. 19. 22 Pendleton County v. Amy, 13 Wall. 297; Railroad Co. v. Howard, 13 How. 307, 335; New England, etc., Co. v. Union, etc., Co., 4 Blatchf. 1; Railroad Co. r. Tipton, 5 Ala. 787; Sacramento Co. v. Southern Pacific Co., 127 Cal. 217; Railroad Co. v. Chatham, 42 Conn. 465; Hale v. Insurance Co., 32 N. H. 295; Bank v. Flour Co. S. C. Com. Ohio, 13 Wkly. Law Bull. 368; Kneeland r. Gibson, 24 Wis. 39. 23Conant r. B. F. Canal Co., 29 Vt. 263. 24 Rector, etc., of St. Bartholomew r. Wood. 80 Pa. 219. 25 Central Transportation Co. r. Pullman Co., 139 U. S. 24; 171 U. S. 138; Graves r. Saline Co.. 161 U. S. 359: Kennedv r. Bank, 167 U. S. 362, 371: Bank v. Hawkins, 174 U. S. 364: Clark r. Northampton. 105 Fed. Rep. 312; Sage V. Fargo Township, 107 Fed. Rep. 383. MS FORM OF CONTRACT. 134] *CHAPTEE III. Form of Contract. I. Formality in Early English Law, Modern principles as to re- quirements of form, Position of informal contracts in ancient law, Formal and informal contracts in Roman law. Archaic modes of proof. The deed in English medieval law, Remedies on contracts: debt on covenant or simple con- tract, Action of covenant. Action of account, II. The Action of Assumpsit, Introduction of assumpsit to supply remedy on executory agreements, III. Modern Requirements of Form, Modern law: requirements of form exceptional. Contracts of record, Contracts subject to special forms, 1. Contracts of Corporations, PAGE. 161 148 148 149 149 1.50 150 151 152 153 154 154 157 157 157 158 159 Old law: requirement of seal, 159 Modern exceptions. Trading corporations : con- tracts in course of business, 1G2 Non-trading corporations : con- tracts necessary and inci- dental to corporate purposes, 164 Municipal corporations, &c., 164 Appointments of otncers, 165 Executed contracts with cor- porations, 166 Statutory forms of contract, 167 Summary, 168 2. A'egotiable Instruments, 168 3. Statutory Forms, 168 A. Statute of Frauds, 168 Guarantees, 169 Agreements upon considera- tion of marriage, 172 Interests in land, 172 Agreements not to be per- formed within a year, 175 Sale of goods, 178 The " note or memorandum," 178 Transfers of ships and copy- right, 183 B. Marine Insurance, 183 C. Transfer of Shares, 184 D. Acknoivledgment of Barred Debts, 184 I. Formality in Early English Laiv. Modern principles: form required only for special reasons. The law of contract exists chieiiy for the security of men in tlieir daily business, conducted in many different modes from hour to hour, and in whatever mode suits the circumstances, by word of mouth (nowadays including telephone), written agreement, letter, or telegraph. Hardly any limit can be set to the diversity of forms in which men bargain witli one another; but business, in the commercial sense, has this common feature in all its branches, that it depends on bargain of some kind. Therefore the Common Law does not, as a general rule, require any particular form in contracts, provided that there is a bargain intended to be binding, though in certain cases evidence in writing is required for special reasons of precaution, or by mercantile custom embodied in the law, and in some cases formalities are imposed for the pro- HISTORY OF FORMAL CONTRACTS, 149 teetion of the revenue. Transactions of bounty, on tlie other hand, are not in the orelinary way of Inisiness, and if a man wants to bind himself without bargain, or to dispense with proof of a bargain, he must do so with a certain amount of solemnity (reduced, however, to a matter of no great trouble or necessary cost in modern practice) by expressing his promise in a deed. Accordingly agreements made for valuable consideration are subject to conditions of form only by way of exception in particular cases, but solemn form is necessary to make a gratuitous promise binding. In some such words as the foregoing the broad principles of our modern law, and the *rea- [ 1 35 sons which make us fairly content wdth it as it stands, may be stated with tolerable accuracy. Otherwise in early law. But such a statement would be misleading if taken as implying the assertion that the law came to be what it is by any such logical process. English law started from a groundwork of archaic Germanic ideas not unlike those of the early Eoman law, and quite unrelated to the common sense of a modern man of busi- ness. Form and ceremony were everything, substance and intention were nothing or almost nothing. Only those transactions were recog- nized as having legal efficacy which fulfilled certain conditions of form, and could be established by one or other of certain rigidly defined modes of proof. The proof itself was formal and, when once duly made, conclusive. The history of this branch of our law, through the Middle Ages and even later, consists of the transition from the ancient to the modern way of thinking. No systematic rules of contract. Taking English courts and the rem- edies they administered as they were about the middle of the thirteenth century (for it is needless to go farther back for our present pur- pose) (a), we find that what we should call elaborate contracts or covenants, and of sufficiently varied kinds, can be annexed to grants of land and interests in land, but there is very little independent law of contract, and, if by a law of contract we mean a law which enforces promises as such, it can hardly be said that there is any at all. Still less is there any theory or system of the law. Those who aim at having one must go to the now rising Continental science of Eoman law, and gather crumbs from the tables of the renowned glossators. Bracton, so far as he has a system, copies Azo of Bologna with (a) There was practically no secu- ed. : "English Law before the Nor- lar law of contract before the Nor- man Conquest."' by the present man Conquest. See Pollock and writer, L. Q. R. xiv. 291, 303. Maitland, Hipt. Eng. Law, i. 57, 2nd 150 FORM OF CONTRACT. variations due partly to misunderstanding and partly to the impos- sibility of contradicting the actual English practice (h). But 136] the *only classffication for which the practical English lawyer cares is a classification of forms of action, process, and remedies. Bracton was largely read and used, and was more or less closely fol- lowed by the unknown authors of the books called Britton and Fleta, but his Eoman or Eomanized arrangements of legal topics never ac- quired any authority, and produced no effect whatever on the registers of writs or on the technical vocabulary of pleaders. English lawyers would not believe — and on the whole were right in not believing — that an English charter had anything to do with the Eoman rules about the verbal contract by stipulation, or an appeal of felony with an action imdcr the Lex Aquilia (c). Archaic modes of proof. The only modes of proof known to early Germanic law were oath and ordeal. The archaic oath is not a confirmation of testimony ojDen to discussion, but a one-sided oath of the party and his helpers, which may be preliminary, for the purpose of giving him a standing before the Court, or final and decisive. One regular form of deciding issues on the Continent, but not in England until it was introduced from Xormandy, was trial by battle, not material in the history of this part of the law, but still theoretically possible in an action of debt as late as the time of Henry 11. (d). Ordeal, abolished in the thirteenth century, was con- fined to criminal matters. Proof by writing is ultimately of Eoman origin, but was adopted by the Germanic nations of the Continent at an early time. Duel and writing are the two normal modes of proof in the King's Court in the twelfth century (e). The charter or deed of medieval English law was not a continuation of the Anglo-Saxon " book," but a Norman importation, representing the Frankish branch of what we may call Eoman conveyancing tradition (/). Xow the 137] old Eoman formal contract, the stipulation by question *and answer, had been practically transformed into a written contract even before the legislation of Justinian (g) ; and stipulatio or adstipulatio (h) See Prof. F. W. Maitland's {f) The English charter of feoff- " Bracton and Azo." Selden Society, ment and memorandum of livery of 1895. seisin are really the carta and )wti- (c) "Actio legis Aquiliae de homini- tia familiar in Continental practice bus per fcloniara occisis vcl vul- as early as the ninth century, neratis": Bracton, fo. 103 b. (g) Brunner, Zur Rechtsgesch. Id] Glanv. x. 12. der rilmischen und germanischen (t) Ih. X. 17. Urkunde, 63: Movie's Justinian. 2nd ed. 498. MEDIEVAL HISTORY. 151 had long since, in Continental conveyancing, become a name for the signing or execution of a written instrument (h). Tlius the charter came to us with all the historical dignity of the most solemn form of obligation known to Eoman law (t) ; and if this was not enough, its authority was completed by the fact that all proof was formal in Germanic law, and was conclusive when once made in due form. " Proof was what satisfied the law, not what satisfied the Court" (A-). A deed was, and, subject to grounds of exception ad- mitted only at a later time, still is binding, not because it records this or that kind of transaction, but by the form of the record itself. And, when a promise to pay money was recorded in a deed, the action which the promisee could bring was not an action on the promise. Remedies in thirteenth century — Debt on covenant. The remedy to re- cover money secured by deed was the action of debt, which retained its essential form and characters through the whole history of common law procedure, so long as the forms of action were preserved at all. This was a writ of right for chattels, an action, not to enforce a promise, but to get something conceived as already belonging to the plaintiff: it was called an action of property as late as the Restora- tion (l), a conception which lingers even in some of Blackstone's language. A promise, where it was operative at all, operated not by way *of obligation, but as a grant of the sum expressed (m). [138 It was a good defence that the party's seal had been lost and affixed by a stranger without his knowledge, at least if the owner had given public notice of the loss (») : but not if it had been misapplied by a person in whose custody it was ; for then, it was said, it was his own fault for not having it in better keeping. (h) Brunner, Eum. ii. Germ. action of Property": Edgcomb v. Urkunde, 220 sqq. For an English Dee, Vaugh. at p. 101. example, see Kemble, C. D. No. 023. (m) Harv. Law Rev. vi. 399; (t) The summary view of the Ro- "contracts of debt are reciprocal man classification of contracts for- grants," Edgcomb v. Dee, last note. merly given in this chapter was [n] Glanvill (L. 10, c. 12) has written at a time when English text- not even this: Britton, 1, 164, 166, as books on Roman law were few and in the text. "Pur ceo qe il ad conu trustworthy ones fewer. It is now, le fet estre soen en partie, soit perhaps, needless, but is preserved agarde ptir le pleyntif et se purveye in the Appendix (Xote E) in case it autre foiz le defendaunt de meillour may be sometimes useful for imme- gardeyn." Cp. Fleta, 1. 6, c. 33, § 2; diate reference. c. 34, § 4. That the practice of pub- {k) Salmond, Essays in Juris- lishing formal notice in case of loss prudence, &c., p. 16. really existed is shown by the exam- (/) The action of assumpsit was pie given in Blount's Law Diction- said by Vaughan C.J. to be "much ary, s. v. Sigillum. dated 18 Ric. II. inferior and ignobler than the action In modern law such questions, when of debt, which by the Register is an they occur, come under the head of estoppel. 152 FORJI OF CONTRACT. Debt on simple contract, detinue, &c. An action of debt (o) might also be brought, without proof by deed, for such things as money lent, or the price of goods sold and delivered, and an action of detinue (which was but a species of debt) for chattels bailed (p), the cause of action being still not any promise by the defendant but his pos- session of the plaintiff's money (so it was conceived) or goods. The first thing needful to found the action of debt was, as it still is in jurisdictions where the old forms of action persist, that a certain sum of money should be payable by the defendant to the plaintiff. In debt and detinue the text-writers could profess to recognize the Eoman contractus innominati {do ut des, &c.) which Bracton, carry- ing out the medieval notion that a promise to pay or deliver is a grant immediate in execution and only suspended in operation, put under the head, strange to us nowadays, of conditional grants {q). 139] In the course of the next two centuries we *find it quite clear that an action of debt, provided the sum be liquidated, will lie (as we should now say) on any consideration executed, and also that on a contract for the sale of either goods or land an action may be main- tained for the price before the goods are delivered or seisin given of the land (r). In 129-1 debt was brought to recover money paid on a failure of consideration and the action was held good in form (though there was in fact a covenant (s), and it was said that money paid as the price of land might be recovered back in debt if the seller would not enfeoff the buyer. Covenant. Other remedies applicable to contracts were of limited scope and utility. 'The action of covenant, of which we do not hear before the thirteenth century, was grounded on agreement, convent'w, both in form and in fact, but it was practically confined to agree- ments relating to interests in land. Attempts at extending it were (o) For fuller statement see Pol- possunt and ut repctere possim are lock & Maitland, Hist. Eng. L. ii. corrupt. The triie readings, conjec- 210. turally restored long ago by Giiter- (;)) For the precise difference in bock, and in fact given almost identi- the developed forms of pleading see cally by the best MSS., are sed . . . per Maule J. 15 C. B. 303. Tlie possimi . . . non ut repctere possim. decision of the C. A. in Bryant V. (r) Y. B. 12 Ed. III. (Rolls ed.) Herbert (1878) 3 C. P. Div. 389, 47 587 [Ad. 1338]; Mich. 37 H. VI. L. J. C. P. 670, that an action for [A. D. 1459], 8, pi. 18, by Prisot •wrongful detention is " founded on C.J., where it is added that in tlie tort " within the meaning of the case of goods sold, though not of County Court Acts is, and professes land, the buyer may take the goods: to be, beside the historical question. this follows from the theory of (q) Bracton 18 &, 19 a; Fleta 1. 2. "reciprocal grant." c. 60. § 23. In Bracton fo. 19 a, lines (s) Y. B. 21 & 22 Ed. I. 600. 14, 15 in ed. 1569, si (the second), FORMS OF ACTION, 153 cut short by the establishment, after some vacillation, of the rule that writing under seal was the only admissible proof; so that in the modern common law covenant is the proper name of a promise made by deed. The writ of covenant remained a solitary and barren form of action, without influence on the later development of the law (t). Account. The action of account (u) was a remedy of wider appli- cation (sometimes exclusively, sometimes concurrently with debt) to enforce claims of the kind which in modern times have been the subject of actions of assumpsit for money had and received or the like. It covered apparently all *sorts of cases where money had [ 1 40 been paid on condition or to be dealt with in some way prescribed by the person paying it (.r). One must not be misled by the state- ment that " no man shall be charged in account but as guardian in socage, bailiff or receiver" (?/) : for it is also said "a man shall have a writ of account against one as bailiff or receiver where he was not his bailiff or receiver : for if a man receive money for my use I shall have an account against him as receiver; or if a man deliver money unto another to deliver over unto me, I shall have an account against him as my receiver" (z). This action might be brought by one partner against another (a). At common law it could not be brought by executors, except, it seems, in the case of merchants, nor against them unless at the suit of the Crown (h) : l:)ut it was made applicable both for and against executors by various statutes to which it is needless to refer particularly (c). In modern times this action was obsolete except as between tenants in common (d). Like the ac- tion of debt, it was in the nature of a writ of right, and founded not on a promise, but on the duty — ■ in this case not of pa3dng a sum certain but of rendering an account — attached by law to the defend- ant's receipt of the plaintiff's money. (t) See Pollock & Maitland, ii. (^r) See cases in 1 Rol. .Abr. llfi. 216, Harv. Law Rev. vi. 399-401. {ij) 11 Co. Rep. 89, Co. Lit. 172 a. The Statutum Walliae [A.D. 1284] (~) F. X. B. 116 Q. is the most instructive document. (a) Lb. 117 D. Mr. Langdell dis- The suggestion in Blackstone, Comm. putes this, but Fitzherbert is clear iii. 158, that Assumpsit is an action and express on the point on the ca.se analogous to the writ of (6) Co. Lit. 90 b, and see Earl of covenant, is quite unhistorical, Devonshire's case, 11 Rep. 89. though ingenious. (c) The action is given against (?/) 52 Hen. III. (Stat. Marlb.) c. executors bv 4 & 5 Ann. c. 3 ^ Rev. 17, 13 Ed. T. Stat. Westm. 2) c. 23. Stat.; 4 Ann. c. 16 in Ruffhead) s. For more history and details see ilr. 27. Langdell in Harvard Law Rev. ii. (d) See Lindlev on Partnership, 243,' 251, ,547. note o. 154 FORM OF CONTRACT. On informal execaitory agreements there was in general no remedy- in the King's Courts (e). The Ecclesiastical Courts however en- forced them freely in suits piv laesione fidei, within (and sometimes, it would seem, not within) (/') the limits set by the Constitutions of 141 ] Clarendon, and defined *later by the ordinance or so-called stat- ute of Circumspecte agatis. Executory mercantile contracts were also recognized in the special courts which administered the law merchant. But we cannot here attempt to throw any light on that which Lord Blackburn found to be one of the obscurest passages in the history of the English law {g). Also there were exceptions by local custom. " In London a man shall have a writ of covenant without a deed for the covenant broken," and there was a like custom in Bristol (/i). II. The Action of Assumpsit. Later introduction of assumpsit. In the later middle ages a general remedy became indispensable; but it was introduced from a different branch of the law, and by a device which at first was thought too bold to succeed. This was a new variety of action on the case, framed, it seems, as often on the writ of deceit (i) as on that of trespass, and it ultimately became the familiar action of assumpsit and the ordinary way of enforcing simple contracts. Failure to per- form one's agreements did not create a debt {1-), but it was found to be a wrong in the nature of deceit for which there must be a remedy in damages. The final prevalence of assumpsit over debt, like that of trover over detinue (/), was much aided by the defendant not being 142] able to wage his law and by the "'"greater simplicity and latitude of the pleadings: but the reason of its original introduction was to supply a remedy where no other action would lie. This was not ef- (e) See further Ames, "Parol Latch. 134, 1 Leo. 2, 4 Leo. 105. Un- Contracts prior to Assumpsit," Harv. less indeed we really have here rules Law Rev. viii. 252. of the law merchant which were (f) Haiw. Law Rev. vi. 403: Pol- pleaded as local customs as the only lock & Maitland, H. E. L. ii. 200. way of getting them recognized by Neither the authority nor the actual the King's Courts. text of Cir cum specie agatis is cer- (i) "The breach of promise is al- tain. leged to be mixed with fraud and {[/) Blackburn on the Contract of deceit to the special prejudice of the Sale, 207-208. In addition to the plaintiff, and for that reason it is quotation there from the Year Book called trespass on the case": Pinch- of Ed. IV., see Y. B. 21 & 22 Ed. I., ons case, 9 Co. Rep. 89a. p. 4.58. And see Master MacdonnclTs (/j) " Xo man hath property by a introduction to Smith's Mercantile breach of promise, but must be re- Law. 10th ed. 1890; A. T. Carter, paired in damages": Vaughan CI. The Earlv History of the Law Mer- in Edgcomb v. Dee, Vaughan at i?. chant in England.' L. Q. R. xvii. 232. 101. (h) F. N. B. 146o, Liber Albus (?) See per Martin B. BtirrougJies 191a. 14 H. IV. 26a, pi. 33. Godb. v. Bav^ie (ISOOi 5 H. & X. at p. 301, 49, 330, Stv. 145, 198, 199, 228, 29 L. J. Ex. 138. HISTORY OF ASSUMPSIT. 155 fected without dispute and dissent. In the first recorded case (m), liic action was against a carpenter for having failed to build cer- tain houses as he had contracted to do. The writ ran thus : " Quare cum idem [the defendant] ad quasdam domos ipsius Laurentii [the plaintiff] l)ene et fideliter infra certuni tenipus de novo construend' apud Grimesby assumsisset, praedictus tamen T. doinos ipsius L. infra tempus praedictum, &c., construere non curavit ad dampnum ipsius Laurentii decern libr', &c." The report proceeds to this effect : — '■ Tirivit. — Sir, you see well that his count is on a covenant, and he shows no such thing : judgment. Gascoigne. — Seeing that you answer nothing, we ask judgment and prap for our damages. Tirwit. — This is covenant or nothing {ceo est merement wi cove- nant). Brencliesley J. — It is so: perhaps it would have been otherwise had it been averred that the work was begun and then by negligence left unfinished. (Hankford J. observed that an action on the Statute of Labourers might meet the case.) RicJihill J. — For that you have counted on a covenant and zhov, none, take nothing by your Avrit liut be in mercy."' The word fidelHer in the writ is significant. It seems to denote a deliberate competition with the jurisdiction of the Courts Christian in matters of fidei laesio. AYe will show you, the pleader says in effect, that the King's *judges too know what belongs to good [143 faith, and will not let breach of faith go without a remedy. It may also have been intended to show that there was a bargain and mutual trust (n). This adverse decision was followed by at least one like it (o), but early in the reign of Henry VI. an action was brought against one Watkins for failure to build a mill within the time for whicb he had promised it, and two out of three judges (Babington C.J. and Cookaine J.) were decidedly in favour of the action being maintain- able and called on the defendant's counsel to plead over to the (to) Mich. 2 H. IV., 3 h, pi. 9. is still held that there is an alterna- The full and careful historical dis- five remedy in contract and in tort), cussion of the whole subject by Prof. but an action for mere non-feasance Ames of Harvard in Harv. Law Rev. was a novelty. ii. 1, 53, supersedes all previous re- (n) Modern pleading would re- searches. Actions of trespass on the quire, of course, a much more dis- ease had previously been allowed for tinct averment of consideration: but malfeasance by the newlisrent per- the doctripe was not yet formed, formance of contracts (for which it io) Mich. 11 H. IV. 33, pi. GO. And see Bigelow L. C. on Torts, 587. 15G FORM OF CONTRACT. merits (p). Martin J. dissented, insisting that an action of trespass- would not lie for a mere non-feasance: a difficulty by no means frivolous in itself. " If this action is to be maintained on this matter," jie said, " one shall have an action of trespass on every agreement that is broken in the world." This however was the very thing sought, and so it came to pass in the two following reigns, when the general application of the action of assumpsit was well established. But only in 159Q was it conclusively decided that assumpsit was admissible at the plaintiff's choice where debt would also lie (q). The fiction of the action being founded on a tort was abolished by the Common Law Procedure Act. Meanwhile the relation between the parties which was assumed as the foundation of the duty violated by the defendant, and which involved the plaintiff's having in some way changed his position for the worse on the faith of the defendant's undertaking, was trans- formed into the modern doctrine of Consideration, coalescing on the 144] way, *in fact if not in strict theory, with the existing require- ments of the actions of debt and account. Of this we shall speak separately. Rule that deeds may not be written on wood, &c. It is stated in several books of authority (e.g. Shepp. Touchst. 54) that a deed must be written on parchment or paper, not on wood, &c. This seems to refer to the then common use of wooden tallies as records of contracts. Fitz- herbert in fact says (r) that if such a tally is sealed and delivered by the party it will not be a deed ; and the Year Books afford evidence of attempts to rely on sealed tallies as equivalent to deeds; and it appears that by the custom of London they were so (s). These tallies were no doubt written upon as well as notched, so that nothing could be laid hold of to refuse them the description of deeds but the fact of their being wooden : the writing is expressly mentioned in one case (t), and theExchequcr tallies used till within recent times were likewise written upon (u). (p) Hil. 3 H. VI. 36, pi. 33. {t) Trin. 12 H. IV. 23, pi. 3. The {(/) Blade's case, 4 Co. Rep. 91 a, other citation.? we have been able to in Ex. Ch. It was still later before verify are Pasch. 2.5 Ed. III. 83 it was admitted that the substantial (wrongly referred to as 40 in the cause of action in assumpsit was the last case and in the margin of contract. O. W. Holmes, The Com- Fitzh.), pi. 9, where the reporter mon Law, 284-287. For the earlier notes it is said to be otherwise in history see Prof. Ames, Harvard Law L(mdon; and Trin. 44 Ed. III. 21, pi. Rev. ii. 16. 23. (r) F. N. B. 122 I. (") See account of them in Penny (s) " Un taille de dette enseale Cyelopa-dia, s. v. Tally; Hall, An- par usage de la citee est auxi fort tiquities of the Exchequer, 118 sqq. come une obligacoim": Liber Albus 191 a. CONTRACTS OF RECORD. 157 III. Modern requirements of form. Requirements of form now exceptional. We have seen how in the an- cient view no contract was good (as indeed no act in the law was) unless it brought *itself within some favoured class by satisfying [ 1 45 particular conditions of form, or of evidence, or both. The modern view to whieli tlio law of England has now long come round is the reverse, namely that no contract need l)e in any particular form unless it belongs to some class in which a particular form is specially required. Contracts of record. Before we say anything of these classes it must be mentioned that contracts under seal are not the only formal con- tracts known to English law. There are certain so-called " contracts of record " which are of a yet higher nature than contracts by deed. The judgment of a Court of Record is treated for some purposes as a contract :^ and a recognizance, i. e. " a writing obligatory ac- knowledged before a judge or otlier officer having authority for that purpose and enrolled in a Court of Record," is strictly and properly a contract entered into with the Crown in its judicial capacity. The ■statutory forms of security known as statutes merchant, statutes staple, and recognizances in the nature of a statute staple, were likewise of record, but they have long since fallen out of use (x). The French (art. 1333) and Italian shire not many years ago. I have (art. 1332) Civil Codes expressly ad- seen them, in a rougher form, in use mit tallies as evidence between in a village baker's shop in Xor- traders -who keep their accounts in mandy. Specimens of English tal- this way; nor is the use of them un- lies both ancient and recent may be known at this day in England. By seen in the medieval room of the the courtesy of Mr. J. B. Matthews, British Museum, and at the Record of the Middle Temple, formerly of Office. Cp. Col. Yule's note on Marco AVorcester, I have a specimen of the Polo, ii. 78, 2nd ed. tallies Avith which the hop-pickers in {x) As to Contracts of Record, see Herefordshire still keep account of Anson, p. 55, 9th ed., and for an ac- the quantities picked. They were count of statutes merchant, &c. 2 used in the Kentish hop country Wms. Saund. 216-222. within living memory, and in Hamp- 1 Stuart r. Landers. IG Cal. 372; Gebhard r. Garnier, 12 Bush, 321; Morse r. Tappan, 3 Gray, 411. But a judgment is not, properly speaking, a contract. Louisiana r. Mavor, 109 U. S. 285; Freeland r. V, illiiims, 131 U. S. 405: Morlev r. Railroad, 'l46 U. S. 1G2; Hilton v. Guyot, 159 U. S. 113, 201; Wadswortli r. Henderson. 16 Fed. Rep. 447. 451; Evans, etc. r. McFadden. 105 Fed. Rep. 293; Larrabee r. Baldwin. 35 Cal. 155. 168; Rae v. Hulbert. 17 111. 572, 580; Burnes v. Simpson. 9 Kan. 658; Dudley r. Lindsev, 9 B. Mon. 486. 489; O'Brien v. Young. 95 X. Y. 428; Gutta" Percha Co."^ v. Mavor. 108 X. Y. 276; Anjjlo- Ameriean Co. v. Davis Co., 169 X. Y. 506, 509; McDonald v. Dickson," 87 N. C. 404; In re Kennedv, 2 S. C. 216. 158 FOiai OF COXTIiACT. Contracts subject to special forms. The kinds of contract subject to restrictions of forms are these : (1). At common law, the contracts of corporations. Tlic rule that such contracts must in general be under seal is earlier than the time when the modern doctrine of contracts was formed. Of late years great encroachments have been made upon it, which have probably not reached their final limits; the law is still unsettled on some points, and demands careful consideration. Both the historical and the practical reason lead us to give this topic the first place. 146] *(3)- Party by the law merchant (now codified in England) and partly by statute, the peculiar contracts expressed in negotiable instruments. (3). By statute only— A. The various contracts within the Statute of Frauds. Certain sales and depositions of property are regulated by other statutes, but mostly as transfers of owner- ship or of rights good against third persons rather than as agreements between the parties. B. Marine insurances. C. Transfer of shares in companies (generally). D. Acknowledgment of debts barred by the Statute of Limi- tation of James I. E. Marriage: This, although we do not mean to enter on the subject of the Marriage Acts, must be mentioned here to complete the list.^ 2 Under the law prevailing in most of the United States, marriage is not a formal contract. Bishop on ^lurriage and Divorce, § 279 ct seq. ; Meister 1". Moore, 96 U. S. 76; Matthewson r. Phoenix Iron Foundry, 20 Fed. Rep. 281; Arnold v. Chesebrough, 58 Fed. Rep. 833; Davis v. Pryor, 112 Fed. Rep. 274; Tartt i". Xegus, 127 Ala. 301; McCausland's Estate, 52 Cal. 508; Sharon v. Sharon, 75 Cal. 1; Port v. Port, 70 111. 484; Hebblethwaite v. Hep- worth, 98 111. 126; Re Maher's Est., 204 111. 25; Teter r. Teter. 101 Ind. 129; Schuchart V. Schuchart, 01 Kan. 597; Hutchins r. Kimmell, 31 Mich. 126; Lorimer v. Lorimer, 124 Mich. 631; Barker r. Valentine. 125 Mich. 336; State V. Worthingham, 23 Minn. 528 ; Carey r. Hulett, GO Minn. 327 ; Floyd V. Calvert, 53 Miss. 37 ; Dver r. Brannook. OG Mo. 391 ; State r. Bittick, 103 Mo. 183; Clark v. Clark, 52 N. J. Eq. 650; Hvnes v. McDermott, 82 N. Y. 41. 46: 91 N. Y. 451: Gall r. Gall, 114 N. Y. 109: Carmichael r. State, 12 Ohio St. 553; Richard v. Brehm, 73 Pa. St. 140; Chapman v. Chapman, 16 Tex. Civ. App. 382; Stans r. Bartley, 9 Wash. 115. Contra, Estill r. Rogers, 1 Bush, 62; Denison r. Denison. 35 Md. 361; Commonwealth r. Munson. 127 Mass. 459; Dunbarton v. Franklin, 19 X. H. 257: State r. Wilson, 121 X. C. 650: Northfield r. Plymouth. 20 Vt. 582; Morrill V. Palmer, 68 Vt. 1. See 27 Am. L. Reg. 101, 35 id. 221, 223 scq. CONTRACTS OF CORPOEATIOXS. 159 1. As to contracts of corporations. Old rule: Seal generally required. The doctrine of the common law was that corporations could bind themselves only under their common seal, except in small matters of daily occurrence, as the ap- pointment of household servants and the like (y). The principle of these exceptions being, in the words of the Court of Exchequer Chamber, "convenience amounting almost to necessity" (2:), the vast increase in the extent, importance, and variety of corporate dealings which has taken place in modern times has led to a corresponding increase of the exceptions. Before considering these, however, it is well *to cite an approved judicial statement of the rule, and of [ 1 47 the reasons that may be given for it : — " The seal is required as autlienticatiiifj the concurrence of the ^vhoIe borly corporate. If the legislature, in crectinp; a body corporate, invest any member of it, either expressly or impliedly, with authority to bind the whole body by his mere signature or otherwise, then undoubtedly the adding a seal would be matter purely of form and not of substance. Evor,yone becoming a member of such a corporation knows that he is liable to be bound in his corporate character by such an act: and persons dealing with the corpora- tion know that by such an act the body will be bound. But in other cases the seal is the only authentic evidence of what the corporation has done or agreed to do. The resolution of a meeting, however numerously attended, is. after all, not the act of the whole body. Every member knows he is bound by what is done under the corporate seal and by nothing else. It is a great mistake, therefore, to speak of the necessity for a seal as a relic of ignorant times. It is no such thing: either a seal or some sub- stitute for a seal, which by law shall be taken as conclusively evidencing the sense of a whole body corporate, is a necessity inherent in the very nature ot a corporation ''(a). It is, no doubt, a matter of " inherent necessity " that when a natural person acts for a corporation, his authority must be shown in some way; and the common seal in the agent's custody, when an act in the law purports to be the act of the corporation itself, or his authority under seal, when it purports to be the act of an agent for the corporation, is in English law the recognized evidence for that purpose.^ But there is no reason in the nature of things whv his (y) 1 Wms. Saund. 615, 616, and (a) Mayor of Ludlow v. Charlton see old authorities collected in notes (1840) 6 M. & W. 815, 823, adopted to Arnold v. Mayor of Poole (1842) bv Pollock B. in Mayor of Ridder- 4 M. & Gr. 860, 12 L. J. C. P. 97; minster v. Hardunck (1873) L. R. 9 and Fishmongers' Company v. Rob- Ex. at p. 24, 43 L. J. Ex. 9: and see crtson (1843) 5 M. & Gr. 131, 12 per Keating J. Austin v. Otmrdians L. J. C. P. 185. of Bcthvoi Green (1874) L. R. 9 (2;) Church v. Imperial Gas Light C. P. at p. 95, 43 L J C P 100 * Company (1838) 6 A. & E. 846, 861, 45 R. R. 638, 643. '' The signatures of the proper oflicers being proved, the presence of the corporate seal is prima facie evidence that it was affixed by authority. 160 FOUAI OF COXTIIACT. authority should not be manifested in oHkt ways: nor is the seal of itself conclusive, for an instrument to which it is in fact affixed without authority is not binding on the corporation (h).'^ On the other hand, although it is usual and desirable for the deed of a cor- poration to be sealed with its proper corporate seal, it is laid down 148] by *high authorities that any seal will do (c).^ A company under the Companies Act, 1862, must have its name engraved in legible characters on its seal, and any director, &c., using as the seal cf the company any seal on which the name is not so engraved is sub- ject to a penalty of oOl. (ss. 41, 42) : but this would not, it is con- ceived, prevent instruments so executed from binding the company (d). The seal of a building society incorporated under the Building So- (6) Bank of Ireland v. Evans' of the private seal of a director being Charities (1855) 5 H. L. C. 389. used when the company had been so (c) 10 Co. Rep. 30 b, Shepp. recently formed that there had been Touchst. 57. Yet the rule is doubted. no time to make a proper seal, Gray es ordered for the company's works (h). Expressly said in the Court below to be no longer law, per Montague Smith J. See L. R. 3 C. P. 475. Homersham v. Wolverhampton Waterworks Co. (18.51) 6 Ex. 137, 20 L. ,T. Ex. 193. Contract under seal for erection of machinery: price of extra work done with approval of the company's engineer and accepted, but not within the terms of the sealed contract, held not recoverable. Digyle v. London d BlaclwaU Ry. Co. (1850) 5 Ex. 442, 19 L. J. Ex. ,308. Work done on raihvay in alterations of permanent way, &c. : this case already much doubted in Henderson v. Australian Royal Mail, &c. Co. 5 E. & B. 409,, (f) (1868) L. R. 3 C. P. 403, in above. For details see Note D. in Ex. Ch. 4 C. P. 617, 38 L. J. C. P. Appendix. 338. Most if not all of the previous (h) The directors wore anthori'cd authorities are there referred to. l)y the incorporating Act of Parlia- (g) This qualification is itself sub- iiiont to mnke contracts; but it was ject to the rule established by Royal held that this only meant they might British Bank v. Turquand (1856) 6 affix the seal without calling a E. & B. 237. 25 L. J. Q. B. 317, and meeting. similar cases, and mentioned at p. 126 TRADING AND XOX-TRADING CORPORATIONS. 163 24 L. J. Q. B. 322, which is now confirmed in its full extent by the principal case. Probably Finlay v. Bristol tC- Exeter Ry. Co. (1852) 7 Ex. 409, 21 L. J. Ex. 117, where it was held that against a corporation tenancy could in no case be inferred from payment of rent so as to admit of an action for use and occupation without actual occupation. Also London Dock Co. v. Sinnott (1857) 8 E. & B. 347, 27 L. J. Q. B. 129, where a contract for scavenging the company's docks for a year was held to require the seal, as not being of a mercantile nature nor with a customer of the company, can now be of little or no authority beyond its own special cir- cumstances: see per Bovill C. J. L. R. 3 C. P. 471. Even in the House of Lords it has been assumed and said, though fortu- nately not decided, that a formal contract under seal made with a railway company cannot be subsequently varied by anv informal mutual consent: Midland G. W. Ry. Co. of Ireland v. Joh)ison (1858) 6 H. L. C. 798, 812. Cases affirmed. The following cases are affirmed or not contradicted. Some of them were decided at the time on narrower or *more [151 particular grounds, and in one or two the trading character of the corporation seems immaterial : — Beverley v. Lincoln Gas Co. (1837) 6 A. & E. 829; 45 R. R. G2G. Action against the company for price of gas meters supplied. Church V. Imperial Gas Co. (1838) 6 A. & E. 846, 45 R. R. 638 in Ex. Ch. Action by the company for breach of contract to accept gas. A sup- posed distinction between the liability of corporations on executed and on t'xeeutorj^ contracts was exploded. Copper Miners of England v. Fox (1851) 16 Q. B. 229, 20 L. J. Q. B. 174. Action (in efTect) for non-acceptance of iron rails ordered from the company. The company had in fact for many years given up copper mining and traded in iron, but this was not within the scope of its incorporation. Lowe V. L. d X. W. Ry. Co. (1852) 18 Q. B. 632, 21 L. J. Q. B. 3G1. The company was held liable in an action for use and occupation when there had been an actual occupation for corporate purposes, partly on the ground that a parol contract for the occupation was within the statutory powers of the directors and might be presumed : cp. the next case. Pauling v. L. d N. W. Ry. Co. (1853) 8 Ex. 867, 23 L. J. Ex. 105. Sleepers supplied to an order from the engineer's office and accepted : there was no doubt that the contract could under the Companies Clauses Consolidation Act be made by the directors Avithout seal, and it. was held that the accept- ance and use were evidence of an actual contract. Henderson v. Australian Royal Mail Co. (1855) 5 E. & B. 409, 24 L. J. Q. B. 322. Action on agreement to pay for bringing home one of the com- pany's ships from Sydney. Here it was distinctly laid down that '" where the making of a certain description of contracts is necessary and incidental to the purposes for which the corporation was created " such contracts need not be under seal (by Wightman J.): "The question is whether the con- tract in its nature is directly connected with the purpose of the incorpora- tion " (by Erie J.). Australian Royal Mail Co. v. Marzetti (1855) 11 Ex. 228, 24 L. ,T. Ex. 273. Action by the company on agreement to supply provisions for its pas- senirer ships. Renter v. Electric Telegraph Co. (1856) 6 E. & B. 341, 26 L. J. Q. B. 46. where the chief point was as to the ratification by the directors of a con- tract made originally with the chairman alone, who certainly had no author- ity to make it. Ehbw Vale Company's case (1869) L. R. 8 Eq. 14, decides that one Avho sells to a company goods of the kind used in its business need not ascertain tliat the company means so to use them, and is not prevented from enforcing the contract even if he had notice of an intention to use them otherwise. 164 FORM OF CONTRACT. Non-trading corporations — " Necessary and incidental " contracts. As concerns non-trading corporations, the question has never been 152] decided l)y a Court of Appeal. But the weight *of authority seems on tlie whole to warrant tlie statement that all contracts neces- sary and incidental to the purposes for which the corporation exists may be made without seal, at least when the corporation has been established for special purposes by a modern statute or charter. On the rule as thus limited the latest case is Nicholson v. Bradfield Union (i), where it was held that a corporation is liable without a contract under seal of goods of a kind which must be from time to time required for corporate purposes, at all events when they have been actually supplied and accepted. Earlier decisions are as fol- lows : — Sanders v. 8t. Neots Union (181G) 8 Q. B. 810, 15 L. J. M. C. 104. Iron gates for workhouse supplied to order without seal ond acceptance. Paine v. Htrund Union (1840) ib. 320, 15 L. J. M. C. 80, is really the same -way, though at first sight contra: the decision being on the ground that mak- ing*^ a plan for rating purposes of one parish within the union was not inci- dental to the purposes for which the guardians of the union were incorporated: they had nothing to do with either making or collecting rates in the several parishes, nor had they power to act as a corporation in matters confined to any particular parish. Clarke v. Ctickfield Union (1852) 21 L. J. Q. B. 349 (in the Bail Court, by Wightman J.). Builders' work done in the workhouse. The former cases are reviewed. Haigh v. ^orth Bierleij Union (1858) E. B. & E. 873, 28 L. J. Q. B. 62. An accountant employed to investigate the accounts of the union was held entitled to recover for his work as " incidental and necessary to the purposes for whicli the corporation was created," by Erie J., Crompton J. doubting. In direct opposition to the foregoing we have only one decision, but a considered one, Lamprell v. Billericay Union (1849) 3 Ex. 283, 18 L. J. Ex. 282. Building contract under seal, providing for extra works on written direc- tions of the architect. Extra work done and accepted, but without such direction. Held, with an expression of regret, that against an individual this might have given a good distinct cause of action on simple contract, but this would not help the plaintiff, as the defendants could be bound only by deed. Hunt V. ^Yimhledon Local Board (1878) 4 C. P. Div. 48, 48 L. .J. C. P. 207. Whether the preparation of plans for new offices for an incorporated local board, which plans were not acted on, is work incidental and necessary to the purposes of the board, qucere. The actual decision was on the ground that contracts above the value of 50L were imperatively required by statute to be vmder seal. 153] ='^ Municipal corporations, etc.— Old rule in force. With regard to municipal corporations (and it is presumed other corporations not created for definite public purposes) the ancient rule seems to be still in force to a great extent. An action will not lie for work done on local improvements {1-), or on an agreement for the purchase of (t) (]RP,0) L. R. 1 Q. B. 620, 35 (/.•) Mayor of Ludlow v. Charlton L. J. Q. B. 170. (1840) M. & W. 815. MUNICIPAL CORPORATIOXS. 165 tolls by auction (/)^ or for the grant of a lease of corporate prop- erty (m), without an agreement under seal. Where a municipal corporation owns a graving clock, a contract to let a ship have the use of it neetl not be under the corporate seal ; but this was said to fall within the ancient exception of convenience resting on the fre- quency or urgency of the transaction. The admission of a ship into the dock is a matter of frequent and ordinary occurrence and sometimes of urgency (n). Appointments to offices by corporations. There has also been little dis- position to relax the rule in the case of appointments to offices, and it seems at present that such an appointment, if the office is of any importance, must be under the corporate seal to give the holder a right of action for his salary or other remuneration. This appears by the following instances: — Appointment of attorney: Arnold v. Mayor of Poole (1842) 4 M. & Gr. 860, 12 L. J. C. P. 97. It is ti'ue that the Corporation of London appoints an attorney in court without deed, but that is because it is a matter of record : see 4 M. & Gr. pp. 882, 896. But after an attorney has appeared and acted for a corporation the corporation cannot, as against the other party to the action, dispute his authority on this ground: Faviell v. E. C. Ry. Co. (1848) 2 Ex. 344, 17 L. J. Ex. 223, 297. Nor can the other party dispute it after taking steps in the action: Thames Haven, tCc. Co. v. Hall (1843) 5 M. & Gr. 274. Cp. Reg. v. Justices of Cumberland (1848) 17 L. J. Q. B. 102. Grant of military pension by the East India Company in its political capac- ity: Gibson v. fi.7. Co. (1839) 5 Bing. N. C. 262, 50 E. R. 688. Increase of town clerk's salary in lieu of compensation: Reg. v. Mayor of Stamford (1844) 6 Q. B. 434. *Office M'ith profit annexed (coal meter paid by dues) though held at [154 the pleasure of the corporation: Smith v. Cartwright (1851) 6 Ex. 927, 20 L. J. Ex. 401. (The action was not against the corporation, but against the person by whom the dues were alleged to be payable. The claim Avas also wrong on another ground.) Collector of poor rates: Smart v. West Ham Union (1855) 10 Ex. 867, 24 L. J. Ex. 201 ; but partly on the ground that the guardians had not under- taken to pay at all, the salary being charged on the rates; and wholly on that ground 'in Ex. Ch., 11 Ex. ^867, 25 L. J. Ex. 210. Clerk to master of workhouse: Avstin y. Guardians of Bethnal Green (1874) L. R. 9 C. P. 91, 43 L. J. C. P. 100. Dunston y. Imperial Gas Light Co. (1832) 3 B. & Ad. 125, 37 R. R. 352, as to directors' fees voted by a meeting ; but chiefly on the ground that the fees were never intended to be more than a gratuity. Cope V. Thames Haven, dc Co. (1849) 3 Ex. 841," 18 L. J. Ex. 345: agent appointed for a special negotiation with another company not allowed to recover for his work, the contract not being under seal nor in the statutory form, viz., signed by three directors in pursuance of a resolution, altliough by another section of the special Act the directors had full power to " appoint and displace ... all such managers, officers, agents ... as they (?) Mayor of Kidderminster v. ration sought to enforce the agree- Hardn-ick "(1873) L. R. 9 Ex. 13, 43 ment. L. J. Ex. 9. in) Wells v. Kingston-npon-HuU (m) Mayor of Oxford v. Crow (1875) L. R. 10 C. P. 402, 44 L. J. [1893] 3 Ch. 535, Avhere the corpo- C. P. 257. lu'6 FORM OF CONTRACT. shall think proper." It seems difficult to support the decision; this was not like an appointment to a continuing office; and cp. Reg. v. Justices of Ciim- berland (1848) 17 L. J. Q. B. 102, where under very similar enabling words an appointment of an attorney by directors without seal was held good as against third parties. No equity to enforce informal agreement against corporation. It has been decided (as indeed it is obvious in principle) that inability to enforce an agreement with a corporation at law by reason of its not being under the corporate seal does not create any jurisdiction to enforce it in equity (o). Right of corporations to sue on contracts executed. The rights of cor- porations to sue upon contracts are somewhat more extensive than their liabilities. When the corporation has performed its own part of the contract so that the other party has had the benefit of it, the corporation may sue on the contract though not originally bound (p). 155] For this reason, if possession is given under a *demise from a corporation which is invalid for want of the corporate seal, and rent paid and accepted, this will constitute a good yearly tenancy (q) and will enable the corporation to enforce any term of the agreement which is applicable to such a tenancy (r), and a tenant who has occupied and enjoyed corporate lands without any deed may be sued for use and occupation (s). Conversely the presumption of a demise from year to year from payment and acceptance of rent is the same against a corporation as against an individual landlord : " where the corporation have acted as upon an executed contract, it is to be presumed against them that everything has been done that w^as neces- sary to make it a binding contract upon both parties, they having had all the advantage they would have had if the contract had been regularly made " (t). And a person by whose permission a corpora- tion has occupied lands may sue the corporation for use and occu- (o) Kirk v. Bromley Union (1846) (r) Eccles. Commrs. v. Merral 2 Ph. 640; Crampton v. Varna Ry. (1869) L. R. 4 Ex. 162, .38 L. J. Ex. Co. (1872) L. R. 7 Ch. 502, 41 L. J. 93. By Kelly C.B. this is correlative Ch. 817. to the tenant's right to enforce the (p) Fishmovqers' Co. v. Robertson agreement in equitv on the ground of (1843) 5 M. & Gr. 131, 12 L. J. C. P. part performance, scd qit. 185. The judgment on this point is (s) Mayor of Stafford v. Till at pp. 192-6;" but the dictum con- (1827) 4 Bing. 75, 20 R. R. 511. The tained in the passage " Even if . . . like as to tolls, Mayor of Carmarthen against themselves," pp. 192-3 (ex- v. Lervis (1834) 6^0. & P. 608, but tending the right to sue without see Serj. Manning's note, 2 M. & Gr. limit) is now overruled. See Mayor 249. of Kidderminster V. Hardmck {1873) it) Doe d. Pennington v. Taniere L. R. 9 Ex. 13. 21, 43 L. J. Ex. 9. (1848) 12 Q. B. 998, 1013, 18 L. J. (q) Wood V. Tate (1806) 2 Bos. & Q. B. 49. P. N. R. 247, 9 R. R. 645. CONTRACTS OF CORPORATIONS. 167 pation (u). In the case of a jearl^y tenancy the presumption is of an actual contract, hut the liahility for use and occupation is rather quasi ex contractu (x). Corporations liable on quasi-contracts generally. It is settled that in general a cause of action on a quasi-contract is as good against a cor- poration as against a natural person. Thus a corporation may be sued ill an action for money received on the ground of strict neces- sity ; " it cannot be expected that a corporation should put their seal to a ^promise to return moneys which they are wrongfully re- [156 ceiving " (y). It was held much earlier that trover could be main- tained against a corporation — a decision which, as pointed out in the case last cited, was analogous in principle though not in form (z). Sometimes it is stated as a general rule that corporations are liable on informal contracts of which they have in fact had the benefit : but the extent and existence of the supposed rule are doubtful (a). Statutory forms of contract. Forms of contracting otherwise than un- der seal are provided by many special or general Acts of Parliament creating or regulating corporate companies, and contracts duly made in those forms are of course valid. But a statute may, on the other hand, contain restrictive provisions as to the form of corporate con- tracts, and in that case they luust be strictly followed. Enactments requiring contracts of local corporate authorities exceeding a certain value to be in writing and sealed with the corporate seal are held to be imperative, even if the agreement has been executed and the cor- poration has had the full benefit of it (h). The general result seems to stand thus: — («) Loive V. L. tG N. W. Ry. Co. oiiah, IG East, at p. 10, 14 R. R. 275, (1852) 18 Q. B. 632, 21 L. J. Q. B. 276. 361. (a) Hunt v. Wimhledo7i Local (x) The liability existed at com- Board (1878) 4 C. P. Div. at pp. 53, mon law, and the statute 11 Geo. 2, 57, 48 L. J. C. P. 207. c. 19, s. 14, made the remedy by (h) Frend v. Dennett (1858) 4 C. action on the ease co-extensive with B. N. S. 576, 27 L. J. C. P. 314; that bv action of debt, see Gibson v. Hunt v. Wimhlcdon Local Board Kirk '(1841) 1 Q. B. 850, 10 L. J. (1878) 3 C. P. D. 208, in C. A., 4 Q. B. 297. Since the C. L. P. Act the C. P. Div. 48, 48 L. J. C. P. 207; statute seems in fact superfluous. Young d- Co. v. Mai/or of Leaming- (y) Hall V. Mayor of Swansea ton (^1883) 8 App. Ca. 517, 52 L. J. (1844) 5 Q. B. 526, 549, 13 L. J. Q. B. 713. In Eaton v. Basker {1881) Q. B. 107. The like of a quasi cor- 7 Q. B. Div. 529. 50 L. J. Q. B. 444, porution empowered to sue and be it was decided that a provision of sued bv an officer, Jcfferys v. Gurr this kind in the Public Health Act, (1831)' 2 B. & Ad. 833, 36 R. R. 769. 1875, applies only to contracts known (z) Yarborouqh v. Bank of Eng- at the time of making- them to exceed land (1812) 16 East, 6, 14 R. R. 272. the specified "value'or amount" of See early cases of trespass against 50L corporations cit^'d by Lord Ellenbor- 168 roim of contract. Summary of results. In the absence of enabling or restrictive statu- toi'}' provisions, which wlien they exist must be carefully attended to — ■ 157] A trading corporation may make without seal any con*tract incidental to the ordinary conduct of its business; but it cannot bind itself by negotiable instruments unless the making of such in- struments is a siibstantive part of that business, or is provided for by its constitution (c). A non-trading cor]3oration, if expressly created for special pur- poses, may make Avithout seal any contract incidental to those pur- poses; if not so created, cannot (it seems) contract without seal except in cases of immediate necessity, constant recurrence, or trifling importance. In any case where an agreement has been completely executed on the part of a corporation, it becomes a contract on which the corporation may sue. The rights and obligations arising from the tenancy or occupation of land without an express contract apply to corporations both as landlords and as tenants or occupiers in the same manner (d) and to the same extent as to natural persons. A corporation is bound by an obligation implied in law whenever under the like circumstances a natural person would be so bound. It is much to be wished that the whole subject should be reviewed and put on a settled footing by the Court of Appeal, and that those cases which are already virtually overruled should be expressly de- clared to be no longer of authority (e). 2. Negotiahle instruments. The peculiar contracts undertaken by the persons who issue or endorse negotiable instruments must by the nature of the case be in writing. Part of the definition of a bill of exchange is that it is 158] an unconditional order in * writing (/). The acceptance of a bill of exchange, though it may be verbal as far as the law merchant is concerned, is required by statute to be in writing and signed (g). 3. As to jmrely statutory forms. A. Contracts within the Statute of Frauds. To write a commentary on the Statute of Frauds would be beyond (c) See pp. *130, *131, supra. -^PP- Ca. at p. 523, agreeing with id) Assuming Finlay v. Bristol d Lindlev L.J. 8 Q. B. Div. at p. .585. Exeter Ry. Co. (1852)'? Ex. 409, 21 (f) "Bills of Exchange Act, 1882 L. J. Ex. 117, not to be now law. (45 & 46 Vict. c. 61), s. 3. So of (e) See per Lord Blackburn, 8 promissory notes, s. 83. (g) lb. s. 17. STATUTE OF FRAUDS. 169 tlie scope of this work. It may be convenient however to state as shortly as possible, so far as contracts are concerned, the contents of the statute and some of the leading points established on the con- st riiction of it. The statute (29 Car. 2, c. 3) enacts that no action shall be brought on any of the contracts specified in the 4tli section " unless the agreement upon which such action shall be brought or some memo- randum or note thereof shall be in writing and signed by the party to be charged therewith or some other person thereunto by him law- fully authorized." The contracts comprised in this section are — a. Promises by executor, &c. Any special promise by an executor or administrator " to answer damages out of his own estate."' Xo diffi- culty has arisen on the words of the statute, and the chief observation to be made is the almost self-evident one (which equally applies to the other cases within the statute) that the existence of a written and signed memorandum is made a necessary condition of the agreement being enforceable, but will in no case make an agreement any better than it would have been apart from the statute. A good consideration, a real consent of the parties to the same thing in the same sense, and all other things necessary to make a contract good at common law are still required as much as before (h). '^'fS. Guaranties. ''Any special promise to answer for the debt, [ 1 59 default or miscarriages of another person." On this the principal points are as follows. A promise is not within the statute unless there is a debt, &c. of some other person for which that other is to remain liable (though the liability need not be a present one) : for there can be no contract of suretyship of guar- anty unless and \mtil there is an actual principal debtor. " Take away the foundation of principal contract, the contract of suretyship would fail" (i).'^ Where the liability, present or future, of a third ih) As to these contracts of exec- Ex. Ch.), 43 L. J. Q. B. 188, per utors, 1 Wms. Exors. Pt. 2, Bk. 2, Willes J.: affd. L. R. 7 H. L. 17, c. 2. nom. Lakeman v. Mountstcphen (i) Mountstcphen v. Lakeman (1874). (1871) L. R. 7 Q. B. 196, 202 (in TLedlow V. Becton, 36 Ala. 596; Kilbride v. Moss. 113 Cal. 432; Jepherson r. Hunt, 2 Allen, 417: Sinclair r. Bradley. 52 Mo. 180; Moorehouse r. Crangle, 36 Ohio St. 130; Measo r. Wa So an instrument inoperative as a deed for Avant. of a seal may satisfy the statute as a memorandum of a contract to convey. Henry r. Root, 33 X. Y. 526, 550. "An instrument of writing in the usual form of a deed of conveyance, but not delivered as such, may nevertheless be delivered as an executory contract, or as partial evidence of a contract to sell and convey the lands therein de- scribed; and if signed and so delivered by the vendor, and accepted by the vendee, it is sufficient, in an action thereon, to take the case out of the opera- tion of the Statute of Frauds."' Tliayer r. Luce. 22 Ohio St. 62: Campbell r. Thomas. 42 Wis. 437. See also Johnston v. Jones. 85 Ala. 286: Wier r. Batdorf. 24 Neb. 83. Cp. Kopp r. Reiter. 146 111. 437; Morrow v. Moore, 98 Me. 373; Schneider v. Vogler, (Neb.) 97 N. W. Rep. 1018. 176 for:m of contract. "Is not to be," not "is not" or "may not be." This means an agreement that on the face of it cannot be performed within a year. An agreement capable of being performed within a year, and not showing any intention to put off the performance till after a year, 162] is not within *this clause (x)}"^ Nor is an agreement within it (x) >S)uilh V. ^caIc (1857) 2 C. B. X. S. 67, 20 L. J. C. P. 143. 1" It is well settled that an agreement is not within the statute merely because performance may extend over more than a year ; but where in all probability performance will extend over more than a year and it is expected by the parties that it will, there has been more question. The leading case is Warner v. Texas & Pacific Ry. Co., 164 U. S. 418. In that case tlie promise of the defendant was to maintain a switch for the plain- tiff's benefit for shipping purposes " as long as he needed it.'' The de- fendant maintained the "switch for thirteen years and then tore it up. The Supreme Court reversing the decision below held that the contract Avas not within the statute, and the Aveight of authority sustains the decision. Heflin r. Milton, 69 Ala. 354; Sweet r. Desha Lumber Co., 56 Ark. 629; Osment r. :\lcElrath, 68 Cal. 466; Orland r. Finnell, 1.^3 Cal. 475; Clark r. Pendleton, 20 Conn. 495; Sarles V. Sharlow, 5 Dak. 100: White V. Murt- land. 71 111. 250; Straughan v. Indianapolis. &c. R. R. Co., 38 Ind. 185; Sutphen v. Sutphen, 30 Kan. 510; Louisville, &e. R. R. Co. v. Offutt. 99 Ky. 427; Story r. Story (Ky.), 61 S. W. Rep. 279, 62 S. W. Rep. 865; Walker v. Metropolitan Ins. Co., 56 Me. 371; Baltimore Breweries Co. r. Callahan, 82 Md. 106; Carnig V. Carr, 167 Mass. 544; Wiebcler /'. Mil- waukee Ins. Co., 30 Minn. 464; Harrington r. Kansas City R. R. Co.. 60 Mo. App. 223; Boggs V. Pacific Laundry Co., 86 Mo. App. 616; Powder River Co. i\ Lamb. ^38 Xeb. 339; Gault i\ Brown, 48 X. H. 183; Plimp- ton V. Curtiss, 15 Wend. 336; Trustees v. Brooklvn Fire Ins. Co., 19 X. Y. 305; Blake v. ^'oight, 134 X. Y. 69; Randall V. Turner, 17 Ohio St. 202; Blakenev V. Goode, 30 Ohio St. 350; Jones r. Pouch, 41 Ohio St. 146; Hodges V. Richmond :Mfg. Co.. 9 R. I. 482; Seddon i\ Rosenbaum, 85 Va. 928. But see on the other hand :Mever v. Roberts, 46 Ark. 80; Wilson r. Ray, 13 Ind, 1; Goodrich r. Johnson, 60 Ind. 258; Carney r. IMosher, 97 Mich. 554; Mallett r. Lewis. 61 Miss. 105; Biest r. Ver Steeg Shoe Co. (Mo, App.), 70 S. W. Rep. 1081; Shute r. Dorr, 5 Wend. 204; Day v. Xew York Central R. R. Co., 51 X, Y, 583, 89 X. Y. 616; Izard r. Middleton, 1 Desaus. 116; Jones r. McMichael. 12 Rich. L. 176; Deaton v. Tennessee Coal Co., 12 Heisk. 650; also Buhl v. Stephens, 84 Fed. Rep. 922; Swift V. Swift, 46 Cal. 266; Butler v. Shehan, 61 111. App. 561. Promises which by their terms extend during the life of the promisor or promisee are not within the statute. Hill v. Jamieson, 16 Ind. 125 ; Bell r. Hewitt's Ex., 24 Ind. 280; Harper v. Harper, 57 Ind. 547; Welz v. Rhodius, 87 Ind. 1; Pennsvlvania Co. r. Dolan, 6 Ind. Anp. 109: Atchison, &c. R. R. Co. V. English. "38 Kan. 110; Howard v. Burgen, 4 Dana. 137; Bull V. McCroa, 8 B. :\Ion. 422; :\Iyles r. Myles, 6 Bush. 237: Stowers V. Hollis. S.*? Kv. 544; Hutchinson v. Hiitchinson, 46 Me. 154; Worthy r. Jones. 11 Grav, 168;' Carr r. McCarthy. 70 :Mich. 258; McCormick v. Drummett. 9 Xeb. 384: Blanding r. Sargent. 33 X. H, 239; Dresser v. Dresser, 35 Barb, 573; Thorp i: Stewart. 44 Hun, 232; Richardson v. Pierce. 7 R. I. 330; East Line Co. r. Scott, 72 Tex. 70: Blanchard r. Weeks, 34 Vt. 589; Thomas V. Armstrong, 86 Va, 323; Heath v. Heath, 31 Wis. 223. But see contra, Yose V. Strong, 45 111. App. 98; affd., 144 111. 108: Deaton r, Tennessee Coal Co,. 12 Heisk. 650. Similarly contracts to be performed at the death of a person are not within the statute. Frost r. Tarr. 53 Ind. 390: Riddle r. Backus, 38 la, 81; Sword r. Keith, 31 Mich. 247; Updike r. Ten Broeck, 3 Vroom, 105; Kent V. Kent, 62 N. Y. 560; Jilson v. Gilbert, 26 Wis. 637. STATUTE OF FRAUDS. 177 which is completely performed by one party within a year (y).^^ It appears to be now settled that an agreement depending on the life of a party or of some other person, or otherwise determinable on a contingency which may possibly happen within a year, though this be not expected or desired by the parties, is not within this branch of the statute (z).^^ {y) Cherry v. Heming (1849) 4 E ley v. Positive Assurance Co. (1876) Ex. 631, 19 L. J. Ex. 63. See notes 1 Ex. D. 20 (in C. A. ib. 88, not on to Peter v. Compton, 1 Sm. L. C. 359. this point), 45 L. J. Ex. 451. The (z) McGregor V. McGregor (1888) Englij^h decisions appear to be re- 21 Q. B. Div. 424, 57 L. J. Q. B. 591, ceivod in America: see ^yarner v. overruling Davey v. Shannon (1879) Texas and Pacific Ry. (1896) 164 4 Ex. D. 81, and (it should seem) U. S. 418. iSFernald v. Oilman, 123 Fed. Rep. 797; Rake's Admrs. r. Pope, 7 Ala. 161; Manning v. Pippen, 95 Ala. 537; Eraser v. Gates, 118 111. 99, 112; Piper r. Fosher, 121 Ind. 407; Curtis r. Sage, 35 111. 22; Haugh v. Blythe's Exrs., 20 Ind. 24; Smalley c. Greene, 52 la. 241: Dant r. Head. 90 Ky. 255: Jones i'. Comer, 25 Ky. L. Rep. 773; Holbrook v. Armstrong, 10 Me. 31; Ellicott v. Turner, 4 Md. 476; Suggett's Admr. v. Cason's Admr., 26 Mo. 221; Self v. Cordel], 45 Mo. 345; Bless r. Jenkins, 129 Mo. 647; Kendall v. Garneau, 55 Neb. 403; Perkins v. Clav, 54 X. H. 518; Barrv v. Doremus, 30 N. J. L. 399; Bennett v. Mahler, 90 X.\'. App. Div. 22: Sclieuer v. Monash, 89 N. Y. Supp. 253; Durfee v. O'Brien, 16 R. I. 213; Compton r. Martin, 5 Rich. L. 14; Bates V. Moore, 2 Bailev, 614; Railway Co. v. Wood, 88 Tex. 191; Reed v. Gold, 102 Va. 37; McClellan r. Sanford, 26 \Yis. 595; Grace V. Lunch. 80 Wis. 166. But see contra. Warner v. Texas & Pacific Rv. Co., 54 Fed. Rep. 922 (see s. c. 164 U. S. 418) ; Jackson Iron Co. v. Xegaunee Co., 65 Fed. Rep. 298; Patten r. Hicks, 43 Cal. 509; Montague r. Garnett, 3 Bush, 297; Marcy v. Marcy, 9 Allen, 8; Frary v. Sterling, 99 Mass. 461; Kelley V. Thompson, 175 Mass. 427; Wliipple V. Parker, 29 Mich. 369; Dietrich r. Hoefelmeir, 128 Mich. 145: Buckley r. Buckley, 9 Nev. 373; Emery r. Smitli, 46 N. H. 151; Broadwell r. Getman, 2 Denio, 87; Reinheimer r. Carter, 31 Ohio St. 579, 587, 58; Pierce v. Payne, 28 Vt. 34; Parks v. Francis, 50 Vt. 626. But where a plaintiff who has thus performed, is not allowed to sue on the contract, he can recover on a quantum meruit, or quantum ralehat if the per- formance of the contract has inured to the defendant's benefit, so that in the absence of an express promise of compensation, one would have been implied. St. Louis Hav Co. v. United States, 191 U. S. 159, 164; Bacon v. Parker, 137 Mass. 309, 310. In Sheehy v. Adarene, 41 Vt. 541, it was held that a promise to be performed within a year, made in consideration of one not to be performed within a year, is not within the statute. 19 Scribner v. Flagg Mfg. Co.. 175 Mass. 536. But see Packet Co. r. Sickles, 5 Wall. 580; Buhl r. Stephens. 84 Fed. Rep. 922; Insurance Co. r. Ireland, 9 Kan. App. 644; Trustees V. Insurance Company, 19 X. Y. 305, 28 X. Y. 153. It has even been held that an agreement to support a minor, until he reaches a specified age is not within the statute. Wooldridge v. Stern, 42 Fed. Rep. 311; White i\ Murtland. 71 111. 250; Peters v. Westborough, 19 Pick. 304; :McKinney r. McCloskey, 8 Daly, 368, 76 X. Y. 594; Taylor v. Deseve, 81 Tex. 264. See also Wiggins r. Keizer. 6 Ind. 252: Hollis ;•. Stowers, 83 Ky. ,^.44: Ellicott r. Turner, 4 Md. 476; McLees v. Hale, 10 Wend. 426; Shahan V. Swan, 48 Ohio St. 25. But see contra. Goodrich v. Johnson, 66 Ind. 258; Shute V. Dorr, 5 Wend. 204; Jones r. Hay. 52 Barb. 501. If such a contract is not within the statute it seems hard to suggest any personal contract that is. Tlie contract fixes a definite term of more 12 178 FORM OF CONTRACT. Sec lion 17. The seventeenth section of the statute (sixteenth in the Eevised Statutes) (a) was exended by Lord Tenterden's Act, 9 Geo. 4, c. 14, s. 7, so as to include all executory sales of goods of the value of 101. and upwards, whether the goods be in existence or not at the time of the contract. In England these enactments are super- seded and consolidated by the Sale of Goods Act, 1893 (&). We will here only refer ver}' briefly to the question of what is a sufficient memorandum of a contract, as to which the decisions on the Statute of Frauds remain applicable. The " note or memorandum." There is a curious difference in the judicial interpretation of the " agreement " of which a memorandum or note is required by s. 4, and the '' bargain " of which a note or memorandum was required by s. 17. The "agreement" of s. 4 includes the consideration of the contract, so that a writing which omits to mention the consideration does not satisfy the words of that section :^^ but the "bargain"' of s. 17 includes the price of the goods 163] as a material term *only where it has been specifically agreed (a) The difTerence arises from the Sale, and Mr. Chalmers' ed. of the preamble and the enacting part of Sale of Goods Act, 1893 (1894). A 8. 13 teing separately numbered as recent case of some importance on 13 and 14 in other editions. The acceptance is Taylor v. Htnith, C. A. section is commented on in detail in [1893] 2 Q. B. 6.5, 61 L. J. Q. B. 33L Blackburn on Sale, Benjamin on (&) 5G «S: .57 Vict. c. 71, s. 4. than a year. The reason given for holding the contract not within the statute, that tlie death of the minor will discharge the obligation, holds equally good of a contract to serve for any fixed period longer than a year, yet such a contract is held to be within the statute. Comes r. Lam- son, 16 Conn. 246: Kelly v. Terrell, 26 Ga. 5.51: Tuttle V. Swett, 31 Me. 555; Hearne v. Chadbourne, 65 Me. 302; Bernier v. Cabot Mfg. Co., 71 Me. 506; Hill v. Hooper, 1 Gray, 131; Freeman v. Foss, 145 Mass. 361; Pitcher v. Wilson, 5 Mo. 46; Biest r. Ver Steeg Shoe Company, (Mo. App.) 70 S. W. Rep. 1081; Kansas City R. R. Co. v. Conlee, 43 Neb. 121; McElroy V. Ludlum, 32 X. J. Eq. 828; Townsend v Minford, 48 Hun, 617; Hill- house V. Jennings, 60 S. C. 373; Hinckley i: Southgate, 11 Vt. 428; Lees Adm. r. Hill, 87 Va. 497; Wilhelm i". Hardraan, 13 Md. 140. See also Harris v. Porter, 2 Harr. 27 : Doyle v. Dixon, 97 Mass. 208. As to whether a contract for a year's service to begin the following^ day is within the statute see Dollar ;:. Parkington. 84 L. T. 470; Billing- ton r. Cahill, 51 Hun, 132: also Sprague r. Foster, 48 111. App. 140; Shipley V. Patton, 21 Ind. 169; Aiken v. Nogle. 47 Kan. 96; Sanborn v. Fireman's- Ins. Co.. 16 Gray. 448. An agreement to marry which is by its terms not to be performed within a year has been generally held within the statute. Ullman v. Meyer. 10 Fed. Rep. 241; Paris r. ^Strons. 51 Ind. 339; Nichols v. Weaver. 7 K-". 373: Barge r. Haslam, 63 Neb. 296; Derby v. Phelps. 2 N. H. 515. But see contra. Blackburn v. Mann, 85 111. 222;" Lewis r. Tapman, 90 Md. 294; Brick /-. Gannar. 36 Hun, 52. -r, 1872, with such quantities of each or any of the several articles named in the attached specification, as the company's storekeeper may order, ADEQUACY. 197 * Inadequacy as evidence of fraud, etc. Great inadequacy of con- [180 sideration ma}', however, be material as a cumulative element in cases from time to time, at the price set opposite each article respectively, and agree to abide by the conditions stated on the other side. ((Signed) Samuel Witham.'" The plaintill's olticer replied: "Mr. S. Withani — Sir: I am instructed to inform you that my directors have accepted your tender, dated, etc., to supply this company, at Doncaster station, any quantity they may order during the period ending 31st of October, 1872, of the description of iron mentioned on the inclosed list, at the prices specified therein. The terms of the contract must be strictly adhered to. Kequesting acknowledg- ment of the receipt of this letter. (Signed) S. Fitch, Assistant Secretary." The defendant replied, acknowledging receipt. The acceptance here seems a clear example of what Mr. Pollock, supra, p. *46, calls an illusory promise. It is impossible to see to what it binds the railway company so as to furnish a consideration for the defendant's promise. If the plaintiff had agreed to take of the defendant all such articles named in the specification as they might re- quire for their road during the period named, this would have connoted a promise by the plaintiff during that time not to purchase any such articles from any one but the defendant, which would have been a good consideration. Hartley v. Cummings, 5 C. B. 247 ; Church r. Proctor, 66 Fed. Rep. 240 ( C. C. A.) ; Loudenback r. Tennessee Co., 121 Fed. Rep. 298 (C. C. A.) ; National Furnace Co. v. Keystone Mfg. Co.. 110 111. 427; Minnesota Lumber Co. v. Whitebreast Coal Co., 160 111. 85; Warden Coal Washing Co. v. Myer, 98 111. App. 640; Smith r. Morse, 20 La. Ann. 220; Burgess Fibre Co. v. Broomfield, 62 N. E. Rep. 307 (Mass.); Cooper r. Lansing Wheel Co., 94 Mich. 272; Hickey v. O'Brien, 123 Mich. 611; E. C. Dailey Co. r. Clark Can Co., 87 N. W. Rep. 761 (Mich.) ; Ames-Brooks Co. v. ,l]:tna Ins. Co., 83 Minn. 346: East v. Cayuga Lake Ice Co., 21 N. Y. Supp. 887; Miller r. Leo, 35 N. Y. App. Div. 589, 165 N. Y. 619. Cp. Berk v. International Explosives Co., 7 Comm. Cas. 20. Even such an agreement has been, but, it is submitted, erroneously held to be without consideration. Bailey v. Austrian, 19 ]\Iinn. 535 ; Cool v. Cun- ningham, 25 S. C. 136; Woodward i\ Smith, 109 Wis. 607. See also Burton r. Great Northern Ry. Co., 9 Ex. 507 ; American Cotton Oil Co. r. Kirk, 68 Fed. 791; Columbia Wire Co. v. Freeman Wire Co., 71 Fed. Rep. 302; Crane r. C. Crane & Co., 105 Fed. Rep. 869 (C. C. A.) ; Cold Blast Co. v. Kansas City Co., 114 Fed. Rep. 77 (CCA); Morrow v. Southern Ex. Co., 101 Ga. 810; Savannah Ice Co. v. American Refrig-erator Co., 110 Ga. 142: Vogel v. Pekoe, 157 111. 339; W. H. Purcell Co. v. Sage, 90 111. App. 160, 189 111. 79; American Refrigerator Co. v. Chilton, 94 111. App. C; Jordan v. Indianapolis Co., 61 N. E. Rep. 12 (Ind. App.) ; Benjamin V. Bruce, 87 Md. 240; Michigan Bolt Works r. Steel, 111 Mich. 153; Tarbox v. Gotzian, 20 Minn. 139; Beyer- stedt V. Winona ]Mill Co., 49 Minn. 1 ; Rafolovitz r. American Tobacco Co., 29 Abb. X. C. 406: Gulf. &c. Rv. Co. r. Winton, 7 Tex. Civ. App. 57; Hoffman r. Maffioli, 104 Wis. 630; Teipel r. Meyer, 106 Wis. 41. The letter of acceptance in G. N. Ry. Co. v. Witham could not give rise to a vmilateral contract, as suggested by Brett, J., at p. 19, for the reason, in addition to the fact that the acceptance Avas only illusorj', that the con- sideration of a unilateral contract must always have been executed on the part of the promisee before the promise becomes binding on the promisor ; a unilateral contract executory on both sides is a contradiction in terms; before performance by the promisee, there is no imilateral contract, but only an offer by the promisor; see supra, p. 22. n. 21. Defendant's tender was simply a continuing offer during the |)eriod named, subject to revocation at any time, but while unrevoked converted into a distinct contract by each order of goods from time to time. Keller v. Ybarru, 3 Cal. 147 ; Brewing Assoc, r. Nipp. 6 Kan. App. 730; Thaver r. Burchard, 99 Mass. 508. Cp. Campbell v. Lambert, 36 La. Ann. 35: Railroad Co. v. Dane, 43 N. Y. 240; Railroad Co. r. Mitchell, 38 Tex. 85. 198 CONSIDERATIOX, of fraud and the like, though it will not alone be sufficient. This will be dealt with hereafter. Pillans V. Van Mierop. In the interesting eighteenth-century case of Fillana v. Van Mierop {q) the actual decision was on the prin- ciple that " any damage to another or suspension or forbearance of his right is a foundation for his undertaking, and will make it binding, though no actual benefit accrues to the party undertak- ing" (?•). But Lord Mansfield threw out the revolutionary suggestion (which Wilmot J. showed himself inclined to follow, though not wholly committing himself to it) that there is no reason why agree- ments in writing, at all events in commercial affairs, should not be good without any consideration. '' A nudum pactum does not exist in the usage and law of merchants. I take it that the ancient notion about the want of consideration was for the sake of evidence only . . . . in commercial cases amongst merchants the want of con- sideration is not an objection "' (s). The anomalous character of this dictum was rightly seen at the time, and it has never been followed (t). It was too late to set up a new class of Formal Contracts, which was really the effect of Lord Mansfield's proposal. But if it had occurred a century or two earlier to a judge of anything like Lord Mansfield's authority, the whole course of the English law of contract might have been changed, and its principles might have been substantially assimilated to those of the modern civil law as adopted by the law of Scotland. 181] * Promises founded on moral duty. Another doctrine made current by Lord Mansfield and some of his colleagues with more success (w) was that the existence of a previous moral obligation constituted such a relation between the parties as would support an express promise. The Exchequer Chamber finally decided as late as 1840, that "a mere moral (q) (1765) 3 Burr. 1GG4, and Finch iously argues (Summary, §§ 49, 59), Sel. Ca. 269. that contracts governed by the law (r) Per Yates J. at p. 1674. merchant need on principle no con- (s) 3 Burr. 1609-70. sideration ; in short, that a negotiable {t) In 1778 it was distinctly con- instrument is a specialty. It might tradicted by the opinion of the judges have been better so. In this country delivered to the House of Lords in one can only say dis aliter visum. Rann v. Hughes (1778) 7 T. R. 350. (u) See the note to Wennall v. n.: "All contracts are, by the laws Adney, 3 B. & F. 252, 6 R. R. 782, of England, distinguished into agree- and in Finch Sel. Ca. at p. 358, ments by specialty and agreements which is approved by Parke B. in by parol; nor is there any such third Earle v. Oliver (1848) 2 Ex. 71, at class, as some of the counsel have en- p. 90. and has long been regarded as deavoured to maintain, as contracts classical on the whole question of in writing." Prof. Langdell ingen- past consideration. PAST COXSIDERATIOK. 199 obligation arising from a past benefit not conferred at the request of the defendant"' is not a good consideration (x)}'^ Past consideration ineffectual. It is still not quite settled whether a past benefit is in any case a good consideration for a subsequent jjromise. On our modern principles it should not be (y), and it is admitted that it generally is not (2).-^" For the past service was either (x) Eastwood X. Eeny on (1840) 11 (z) Roscorla v. Thomas (ISi-Z) 3 A. & E. 438. 446. 52 R. R. 400. Q. B. 324, Finch Sel. Ca. 340. (y) Cp. Langdell, op. cit. § 91. 11 In most jurisdictions a moral obligation is now held insufficient con- sideration, and the distinction suggested in the note to Wennall v. Adney is invoked to support such promises as the ratification of an infant's promise or a promise to pay a debt barred by bankruptcy or the Statute of Limita- tions. Morris v. Norton, 75 Fed. Rep. 912; Cook v. Bradley, 7 Conn. 57; Wiggins V. Keizer, 6 Ind. 252 ; Mills v. Wyman, 3 Pick. 207 ; Dodge v. Adams, 19 Pick. 429; Dearborn v. Bowman, 3 Met. 155; Hendricks v. Robinson, 56 Miss. 694; Updike v. True, 2 Beasl. 151. See further, 53 L. R. A. 353, n. In a few jurisdictions, however, the doctrine that moral obligation may sup- port a promise is still in force. Gen. Code, § 2741; McElven r. Sloan. 56 Ga. 108, 109; Gray r. Hamil. 82 Ga. 375: Brown v. Latham. 92 Ga. 280 (but see Davis V. Morgan, 117 Ga. 504) ; Spear v. Griffith, 86 111. 552; Lawrence v. Oglesby, 178 111. 122 (but see Hobbs v. Greifenhagen, 91 III. App. 400) ; Pierce' r. Walton, 20 Ind. App. 66; Robinson v. Hurst, 78 Md. 59; Edwards V. N'elson, 51 Mich. 121; Hemphill r. ]McClimans, 24 Pa. 367; Landis r. Rover, 59 Pa. 95 ; Stebbins v. Crawford, 92 Pa. 289 ; Holden r. Banes, 140 Pa. 63 ; Sutch's Estate, 201 Pa. 305; State r. Butler, 11 Lea, 418. See also Ferguson r. Harris, 39 S. C. 323, and an article by Professor Joseph P. McKeehan on Moral Consideration in Pennsylvania, 9 Dickinson Law School Forum, 1. A past consideration will not support an express promise. ilcNaught r. Fisher, 96 Fed. Rep. 108; Bulklev r. Landon. 2 Conn. 404; Shealy c. Toole, 56 Ga. 210; Summers v. ^'aughn,' 35 Ind. 323; Chamberlin r. Whitford, 102 Mass. 448; Johnson V. Johnson's Adm., 31 Pa. 450: Rudolph r. Hewitt, 11 S. Dak. 646; Barlow v. Smith, 4 Vt. 139; Hopkins v. Richardson. 9 Gratt. 485. But see Viley v. Pettit, 96 Ky. 576; Koenigsberg v. Lennig. 161 Pa. 171. When a part of the consideration is past, and a part is not, it is enough to sustain a promise. Irwin v. Locke, 20 Col. 148 : Wiggins v. Keizer, 6 Ind. 252; Loomis i\ Xewhall, 15 Pick. 159; Graham r. Stanton, 177 Mass. 321; Roberts r. Griswold, 35 Vt. 496. 12 A promise to pay a debt which the creditor has by his own act effectually discharged, whether by release, accord, and satisfaction, or assenting to a composition, is without consideration. Ex parte Hall. 1 Deacon. 171: Samuel V. Fairgrieve, 21 Ont. App. 418: Rasmussen v. State Bank, 11 Col. 301: Lewis V. Simons, 1 Handv, 82; Warren v. Wliitnev. 24 Me. 561: Phelps r. Dennett, 57 Me. 491; Ingersoll r. Martin, 58 Md. 67: Hall v. Rice. 124 Alass. 292: Mason r. Campbell, 27 Minn. 54; Grant r. Porter. 63 X. H. 229; Zoebisch v. Von Minden, 47 Hun, 213: Snevilv r. Read. 9 Watts, 3'96 : Callahan r. Acklev, 9 Phila. 99: Shopard r. Rhodes, 7 R. I. 470; Stafford r. Bacon. 1 Hill, 532; S. C. 2 Hill. 353 (showing the opinion in 25 Wend. 384. to have been pub- lished bv mistake) ; Evans r. Bell. 15 Lea. 569. But see Jamison r. Ludlow, 3 La. Ann. 492; Willing i: Peters, 12 S. & R. 177. contra. Compare Re Merriman. 44 Conn. 587 ; Higgins r. Dale, 28 Minn. 126. A promise made hx a woman when discovert, to perform a promise previously made by her while married, is not binding without a new considera- tion. Watson V. Dunlap. 2 Cranch C. C. 14; Ezell v. King, 93 Ala. 470; Thompson r. Hudgins, 116 Ala. 93; Waters V. Bean. 15 Ga. 358: ?klaher v. Martin, 43 Ind. 314; Putnam r. Tennyson, 50 Ind. 456; Long v. Brown, 66 Ind. 160; Austin v. Davis, 128 Ind. 472; Holloway's Assignee v, Rudy, 60 200 CONSIDERATION. rendered without the promisor's consent at the time, or with his con- sent but without any intention of claiming a reward as of right, in neither of which cases is there any foundation for a contract (a) ; or it was rendered with the promisor's consent and with an expecta- tion known to him of reward as justly due, in which case there were at once all the elements of an agreement for reasonable reward. Supposed exceptions: Lampleigh v. Brathwait. It is said, however, that services rendered on request, no definite promise of reward being made at the time, are a good consideration for a subsequent express promise in which the reward is for the first time defined. But there is no satis- factory modern instance of this doctrine, and it would perhaps now be held that the subsequent promise is only e\'idence of what the parties thought the service worth (&).^^ (a) " It is not reasonable that one consideration would not support an man should do another a kindness, action of debt, but was enough for and then charge him with a recom- assuimp^it, Harsh x. Rainsford (1588) pense." 1 Wms. Saund. 356. 2 Leon. Ill: Sidenham v. Worlington (b) Lampleighv. Brathwait (IQIG) (1595) ih. 224; Finch Sel. Ca. 337; Hob. 105. and 1 Sni. L. C; see per 0. \Y. Holmes, The Common Law, Erie C.J. 13 C. B. X. S. at p. 740. 286, 297. The theory was still that The Irish case of Bradford v. Roul- the breach of promise was an action- ston (1858) 8 Ir. C. L. Rep. 468, able wrong because of an existing will, for English la^\7ers at least, relation between the parties which hardly outweigh this dictum; and created a special duty, not that an the doctrine would seem to be open executory contract, as such, created to examination in the C. A., see per an obligation; and on that theory Bowen L.J. Stewart v. Casey [1892] there was no reason why the promise 1 Ch. at p. 115, 61 L. J. Ch. 61. See and the consideration should be si- Anson, pp. 102-110, and cp. Clark multaneous. But Lord Mansfield can- Hare on Contracts, 246-249. At an not be supposed to have known any- earlier time it was held that a past thing of this. S. W. Eep. 650 (Ky.) ; Musiek r. Dodson, 76 Mo. 624; Bragg v. Israel. 86 Mo. App. 338; Kent v. Rand, 64 X. H. 45; Porterfield v. Butler, 47 Miss. 165; Condon r. Barr, 49 X. J. L. 53; Long r. Rankin, 108 X. C. 333; Wilcox v. Arnold, 116 X. C. 708; Havward v. Barker, 52 Vt. 429; Valentine V. Bell, 66 Vt. 280; Dixie r. Worthy, 11 U. C. Q. B. 328. See also Parker r. Cowan, 1 Heisk. 518. But see contra, Lafitte v. Selogny, 33 La. Ann. 659: Brownson V. Weeks, 47 La. Ann. 1042; Wilson v. Burr^ 25 Wend. 386; Goulding r. Davidson, 26 X. Y. 604; Hemphill v. McClimans, 24 Pa. 367; Leonard r. Duffin, 94 Pa. 218; Brooks v. Merchants' Bank, 125 Pa. 394; Holden v. Banes, 140 Pa. 63. But when the original promise was an engagement binding her separate estate, the subseqiient promise has been sustained. Viser v. Bertrand, 14 Ark. 267 ; Hubbard v. Bugbee, 55 Vt. 506 ; Sherwin v. Sanders, 59 Vt. 499. I'^In some States thi^ doctrine is still law. ^Montgomery v. DowneA% 116 la, 632; Daily v. Minnick, 117 la. 563; Pool v. Horner, 64 Md. 131;"^Stuht V. Sweesy, 48 Xeb. 707: Landis r. Rover, 59 Pa. 95: Sutch's Estate. 201 Pa. 305; Silverthorn v. Wiley, 96 Wis. 69; Raife v. Gorcll, 105 Wis. 636. In Moore r. Elmer. 180 Mass. 15, however, Holmes. C. J., said: "The modern authorities which speak of services rendered upon request as support- ing a promise must be confined to cases where the request implies an undertak- ing to pay, and do not mean that what was done as a mere favor can be turned into a consideration at a later time by the fact that it was asked MUTUAL PROMISES. 201 Performance of another's legal duty. It is *also said that the [ 1 82 voluntary doing by one party of something which the other was legally bound to do is a good consideration for a subsequent promise of recom- pense. But the authority for this proposition is likewise found to be unsatisfactory. Xot only is it scanty in quantity, but the decisions, so far as they did not proceed on the now exploded ground that moral obligation is a sufficient consideration, appear to rest on facts es- tablishing an actual tacit contract independent of any subsequent promise. Acknowledgment of barred debts. Another exceptional or apparently exceptional case which certainly exists is that of a debt barred by the Statute of Limitation, on which the remedy may be restored by a new promise on the debtor's part. It is said that the legal remedy is lost but the debt is not destroj^ed, and the debt subsisting in this dormant condition is a good consideration for a new promise to pay it. This is not logically satisfying, and in fact it belongs to the now discredited view of past consideration. There is no real equivalent for the new promise, and the only motive that can generally be assigned for it is the feeling that it would be morally wrong not to pay. It seems better at this day to say that the law of limitation does not belong to substantive law at all, but is a special rule of procedure made in favour of the debtor, who may waive its protection if he deliberately chooses to do so (c). Mutual promises. The most characteristic rule in our law of con- sideration, and the most important for the business of life, is that mutual promises are sufficient consideration for one another.^* When (c) See more on this point in Ch. XIII. for. See Langdell, Contracts, § 92 et seq.; Chamberlin v. Whitford, 102 Mass. 448, 450; Dearborn v. Bowman, 3 Met. 155, 158; Johnson r. Kimball, 172 Mass. 398, 400."' See also Walker v. Brown, 104 Ga. 357 ; Holloway V. Rudy, (Ky.) 60 S. W. Rep. 650; Stoneburner r. Motley, 95 Va. 784. 14 There has been much difference of opinion on the elementary question of the essential element of consideration in bilateral contracts. The learned author finds this element in the legal detriment imposed by a binding promise, and any new and distinct mutual promises made by capable parties, and not illegal, he regards as necessarily binding. Tliis is also Prof. Langdell's view. Summary, § 84; XIV. Harv. L. Rev. 496. Prof. Ames finds in the mere making, on request, a promise, animo contrahendi, a sufficient consideration. XIII. Harv. L. Rev. 29. This view loads even more absolutely to the result that any promise whatever not in violation of public policy may be sufiicient consideration to support a counter-promise. To the late Professor Wald, as well as the present editor, it has seemed that under the authorities, no promise could be good consideration for a counter-promise, unless the per- formance of the promise Avould or might impose a letral detriment upon the promisor. Doubtless, if for any reason, for instance, lack of capacity on the part of the promisor, a promise is void in law, it cannot serve as consideration 202 CONSIDERATION. the subject was still novel it would not have been difficult, one would 183] think, to frame plausible '''arguments to the contrary. However, there is very little trace of opposition to it in our books. As early as 1555, the validity of reciprocal promises passed without question in a case reported on another point (d). In 1615 it was disputed (we are not told on what grounds), and finally affirmed (e). The promises must be exchanged for one another at the same time (e), and each of them must be binding on the face of it, that is, must not be unenforceable for any intrinsic reason. A promise which pur- ports to be merely honorary, or which is invalidated by any rule of gen- eral policy or special provision of positive law, is no consideration (/). It is true that the promise itself, not the obligation thereby created, is the consideration (g) ; still, the value of a promise does not consist in the act of promising, any more than the value of a negotiable in- strument consists in a piece of paper with writing on it, but in the assurance of the performance to which the promisor obliges himself, or, at worst, of damages for his default. A promise may be incapable cf being sued on (gg), and therefore incapable of being a consideration id) Pecke v. Redman. Dyer, 113. at p. 34, that a promise which is and (e) Nichols V. Raynhred, Hobart, is known to he merely lionorary may 88, Finch Sel. Ca. 330. " Nichols be a good consideration, he seems to brought an assumpsit against Rajm- overlook the undisputed authority of bred, declaring that in consideration, Harrison v. Cage (last note). Cer- that Nichols promised to deliver the tainly some men's honorary promises defendant to his own use a cow. the are in fact worth more than some defendant promised to deliver him men's legal promises, but the law fifty shillings: adjudged for the c not estimate or regard this. Chief plaintiff in both Courts, that the Justice 0. W. Holmes, on the other plaintiff need not to aver the delivery hand, suggests that every legal prom- of the cow, because it is promise for ise is really in the alternative to per- promise. Note here the promises form or to pay damages : wdiich can must be at one instant, for else they pnly be regarded as a brilliant para- will be both mida pacta." See inter- dox. It is inconsistent not only with mediate cases collected by Prof. Amea ths existence of equitable remedies, in Harv. Law Rev. xiii. 32, n. but with the modern common law (/") Harrison y. Cane, 5 Mod. 411; doctrine that premature refusal to Langdell. " Mutual Promises as a perform may be treated at once as a Consideration for each other," Harv. iireach. See 103 U. S. at p. 000; Law Rev. xiv. 400. ,504. Harriman, § 552. ig) Ames, "Two Theories of Con- {gg) In many cases a promise may sideration," Harv. Law Rev. xiii, 29, be actionable though not capable, in 32. But when Prof. Ames suggests, fact or in law, of performance. for a counter-promise. Init the law makes also the same requirement of detriment in regard to performance Avhich is promised that it makes in regard to tlie consideration in unilateral contracts. See VIII. Harv. L. Rev. 27. The cases testing the correctness of this view are promises to forbear a groundless claim against a third person in jurisdictions where forbear- ance of such a claim against the promisee himself is not a good consideration, promises to forbear to commit a tort against a third person, and especially the case subsequently discussed of promises to perform a contractual duty to a third person. PROMISES TO PERFORM EXISTING DUTY. 203 for a '''counter-promise, for various reasons which we have exam- [ 1 84 ined or shall examine under their proper heads. Such reasons do not form part of the doctrine of Consideration, as is shown by the fact that the same or similar reasons exist and are applied in the modern Eoman law and national bodies of law derived from it, where the Common Law rules of Consideration are unknown (/t). In many cases a promisor has the option of avoiding his contract for some cause existing at the date of the promise. But in all such cases the contract is valid until rescinded, and the right to rescind it may be lost by events beyond the promisor's control; so there is no diffi- culty in treating his promise as a good consideration. Certainty required. Since a promise which is to be a good considera- tion for a reciprocal promise must be such as can be enforced, it must be not only lawful but reasonably definite. Thus a promise by a son to his father to leave off making complaints of the father's conduct in family affairs is no good consideration to support an accord and satisfaction, for it is too vague to be enforced (i). And upon a convej^ance of real estate without any pecuniary consideration a covenant by the grantee to build on the land granted such a dwelling- house as he or his heirs shall think proper is too vague to save the conveyance from being voluntary within 27 Eliz. c. 4 (^•), Promises of a thing one is already bound generally or to the promisee to do. Similarly, neither the promise to do a thing nor the actual doing of it will be a good consideration if it is a thing which the party is already bound to do either by the general law or by a subsisting contract with the other party (/). It seems obvious that an express promise by *A. to B. to do something which B. can already call [ 1 85 on him to do can in contemplation of law produce no fresh advantage to B. or detriment to A. (m)}^ But the doing or undertaking of {h) Thus the question of the per- (fc) Roshcr v. Williams (1875) L. formance being possible is irrelevant R. 20 Eq. 210, 44 L. J. Ch. 419. here. In any case the language of (?) See Leake, 538; and besides 2 Wms. Saund. 430 and of the dicta authorities there given, Deacon v. there relied on is much too wide. Clridley (1854) 15 C. B. 295. 24 L. J. (i) WMfev. Bluett (1853) 23 L.J. C. P. 17; and the judgment on the Ex. 36; this seems the ratio deci- 7th plea in Mallalieu v. Hodgson dendi, though so expressed only by (1851) 16 Q. B. 689, 20 L. J. Q. B. Parke B., who asked in the course of 339. argument, "Is an agreement by a (m) Some American courts, how- father in consideration that his son ever, hold otherwise: Harriman on will not bore him a binding con- Contracts, § 117. tract?" 15 And yet. if the promise were binding the Statute of Limitations would begin to run anew, a legal detriment to one party and benefit to the other. 204 COXSIDEEATIOX. anything bej'ond what one is already bound to do, though of the same kind and in the same transaction, is a good consideration. A promise of reward to a constable for rendering services beyond his ordinary The result supported b}^ the learned author and by the Aveight of authority, therefore, does not square Avith his test of consideration. It is submitted that the new agreement is not good consideration not because the promise is not itself a detriment, but because the performance promised is not. That the consideration is not good is the prevailing doctrine. Harris v. Watson, Peake, 72; Stilk v. Myrick, 2 Camp. 317; Fraser i: Hatton, 2 C. B. N. S. 517; Jackson v. Cobbin, 8 M. & W. 790; Mallalieu v. Hodgson, IG Q. B. 689: Harris V. Carter. 3 E. & B. 559; Alaska Packers' Assoc, v. Domenico, 117 Fed. Eep. 99 (C. C. A.); Main Street Co. r. Los Angeles Co., 129 Cal. 301; Bush v. Rawlins, 89 Ga. 117; Davis r. Morgan, 117 Ga. 504 (cp. Poland Paper Co. V. Foote. 118 Ga. 458) ; Xelson v. Pickwick Associated Co.. 30 111. Ar},\ 333; Goldsborough v. Gable, 140 111. 209; Moran v. Peace, -72 111. App. 135, 139; Allen V. Bouse, 78 111. App. 69; Mader r. Cool, 14 Ind. App. 299; Ayres v. Chi- cago. &c. R. R. Co., 52 la. 478; McCarty i\ Hampton Building Assoc, 61 la. 287; Westeott v. Mitchell, 95 Me. 377; Storck v. Mesker, 55 Mo. App. 26; Esterly Co. V. Pringle, 41 Neb. 205; Voorhees v. Combs, 33 X. J. L. 494; Bartlett r. Wyman, 14 Johns. 260; Vanderbilt r. Schreyer, 91 N. Y. 392; Carpenter t\ Taylor, 164 N. Y. 171; Schneider v. Henschenheimer, 55 X. Y. Supp. 630; Festerman i\ Parker, 10 Ired. 474; Gaar v. Green, 6 X. Dak. 48; Erb v. Brown, 69 Pa. 216; Jones v. Risley, 91 Tex. 1; Tolmie r. Dean, 1 Wash. Ter. 46; Magoon v. Marks, 11 Hawaii, 764. See also Hartlev v. Ponscnbv, 7 E. & B. 872; Eastman v. Miller, 113 la. 404; Proctor v. Keith, 12 B. Mon. 252: Eblin V. Miller's Exec, 78 Ky. 371; Endriss v. Belle Isle Ice Co., 49 Mich. 279; Conover v. Stillwell, 34 X. J. L. 54, 57. In a few jurisdictions the contrary view is taken on the ground that the subsequent bargain includes a rescission of the earlier. Stoudenmeier v. Wil- liamson, 29 Ala. 558; Bishop v. Busse, 69 111. 403; Cooke v. Murphy, 70- 111. 96; Coyner v. Lynde, 10 Ind. 282; Holmes v. Doane, 9 Cush. ^135; Rollins r. Marsh, 128 Mass. 116; Rogers v. Rogers, 139 ;Mass. 440; Thomas V. Barnes, 156 Mass. 581, 584; Brigham v. Herrick, 173 Mass. 460, 467; Moore v. Detroit Locomotive Works, 14 Mich. 266; Goebel v. Linn, 47 Mich. 489; Conkling v. Tuttle, 52 Mich. 130; Osborne v. O'Reilly, 42 X. J. Eq. 467; Lattimore r. Harsen, 14 Johns. 3.3-0; Stewart r. Keteltas, 36 X- Y. 388. See also Peck v. Requa, 13 Gray, 407; King v. Duluth Ry. Co., 61 Minn. 482; Hansen V. Gaar, 63 Minn. 94; Gaar v. Green, 6 X. Dak. 48; Dreifus v. Columbian Co., 194 Pa. 475. Any promise made in consideration of the payment, in whole or in part, of a debt already due, therefore, is not binding. Railway Co. v. Clark, 92 Fed. Rep. 968; Skinner v. Gold Min. Co., 96 Fed. Rep. 735; Barron v. Vand- vert, 13 Ala. 232; Hughes V. So. Warehouse Co., 94 Ala. 613; Thompson v. Robinson, 34 Ark. 44; Liening v. Gould, 13 Cal. 598; Solarv r. Stultz, 22 Fla. 263; Carlton v. Western, etc., R. Co., 81 Ga. 531; Smith v. Tyler, 51 Ind. 512; State v. Davenport, 12 la. 335; Adams County v. Hunter, 78 la. 283; Pemberton v. Hoosier, 1 Kan. 108; Ingalls V. Sutliff, 36 Kan. 444; Jenness v. Lane, 26 Me. 475; Smith r. Bartholomew, 1 Met. 276; Warren r. Hodge, 121 Mass. 106; Xess r. Minn. & Col. Co., 87 Minn. 413; Price r. Cannon, 3 Mo. 453; Welz v. Parker, 134 Mo. 458; Watts v. French, 19 N. J. Eq. 407; Parmalee v. Thompson, 45 X. Y. 58; Arend v. Smith, 151 N. Y. 502; Roberts v. Bank, 8 X. Dak. 474; Jenkins r. Clarkson, 7 Ohio 72; Trumbull i: Brock, 31 Ohio St. 649; Charch v. Charch. 57 Ohio St. 561; Hanks v. Barron, 95 Tenn. 275; Pomeroy v. Slade, 16 Vt. 220; Valentine V. Bell, 66 Vt. 281; Smith v. Phillips, 77 Va. 548. See post, n. 17, 20, 21. PROMISES TO PERFORM EXISTING DUTY. 205 duty in the discovery of an offender is binding (n) :^^ so is a promise of extra pay to a ship's crew for continuing a voyage after the number of hands has been so reduced by accident as to make the voyage unsafe, so tliat the crew arc not bound to proceed under their origi- nal articles (o). So, it is conceived, would be a promise in con- sideration of the promisee doing at a particular time, or in a par- ticular way, something which otherwise he must do, but has the choice of doing in more than one way. or at any time within certain limits. Again, there will be consideration enough for the promise if an existing right is altered or increased remedies given. Thus an agreement to give a debtor time in consideration of his paying the same interest that the debt already carries is inoperative, but an agreement to give time or accept reduced interest in consideration of having some new security would be good and binding. The common proviso in mortgages for reduction of interest on punctual payment — i. e., payment at the very time at which the mortgagor has cove- nanted to pay it — seems to be without any consideration, and it is conceived that if not under seal such a proviso could not be en- forced {p)y' Again, the rule does not apply if the promise is in the (n) England v. Davidson (1840) 11 (/)) Tliis could be at once provided A. & E. 856. 52 R. R. 522. against, however, if so desired, bj^ (o) Hartley v. Ponsonhi/ (1857) 7 fixing the times for "punctual pav- E. & B. 872, 26 L. J. Q. B. 322. ment " a single day earlier than those named in the mortgagor's covenant. iSMorrell v. Quarles, 35 Ala. 544; Hayden c. Souger, 56 Ind. 42; Bronnen- berg V. Coburn, 110 Ind. 169; Trundle' r. Riley, 17 B. Mon. 396; Pilie v. New Orleans, 19 La. Ann. 274; Studley v. Ballard, 169 Mass. 295; Gregg V. Pierce, 53 Barb. 387; McCandless v. Alleghany, &c. Co., 152 Pa. 139; Texas Cotton-Press Co. r. Mechanics' Co., 54 Tex. 319; Kasling r. Morris, 71 Tex. 584; Davis v. Munson, 43 Vt. 576; Reif v. Page, 55 Wis. 496. See also Long v. Neville. 36 Cal. 455; Marsh v. Gold, 2 Pick. 289; Commonwealth V. Vandyke^ 57 Pa. 34. But if no more is done than the legal duty requires there is not sufficient consideration. Witty v. Southern Pacific Co., 76 Fed. Rep. 217; Morrell V. Quarles, 35 Ala. 544, 548; Grafton v. St. Louis, &c. Rv. Co., 51 Ark. 504; Lees v. Colgan, 120 Cal. 262; Matter of Russell's Application, 51 Conn. 577; Stacy v. State Bank, 5 111. 91; Hogan v. Stophlet, 179 111. 150; Hayden v. Souger, 50 Ind. 42, 48; Marking v. Needy, 8 Bush, 22; Pool r. Boston, 5 Cush. 219; Davies v. Burns, 5 Allen, 349; Brophy v. Marble, 118 Mass. 548; Studley v. Ballard, 169 Mass. 295; Foley v. Piatt, 105 Mich. 635; Warner v. Grace, 14 Minn. 487; Day v. Putnam* Ins. Co., 10 Minn. 408; Ex parte J. W. Gore, 57 Miss. 251; Kirk r. Merry, 23 Mo. 72; Thornton v. Missouri, &c. Ry. Co., 42 Mo. App. 58; Hatch r. Mann, 15 Wend. 44; Gil- more V. Lewis, 12 Ohio, 281; Smith f. Whildin, 10 Pa. 39; Stamper v. Temple, 6 Humph. 113; Bro^^^l r. Godfrey, 33 Vt. 120. iTMcCann v. Lewis, 9 Cal. 246; Grossman v. Wohlleben, 90 111. 537; Abel V. Alexander, 45 Ind. 523; Hume V. Mazelin, 84 Ind. 574; Hunt v. Postlewait, 28 la. 427; Wilson v. Powers, 130 Mass. 127; Hale v. Forbis, 3 Mont. 395; Kellogg V. Olmsted, 25 N. Y. 189. But it has been held, and it is submitted correctly held, that a promise by a debtor to pay, until a fixed date, the same interest which the debt 206 CONSIDERATION. nature of a compromise, that is, if a reasonable donbt exists at the 186] time whether the thing '''promised be ah'eady otherwise due or not, though it should be afterwards ascertained that it Avas so. We shall return to this when we speak of forbearance as a consideration. Performance of subsisting obligation to third person. Difficult ques- tions arise when we have a promise made in consideration of the promisee doing or promising to do something which a subsisting contract with a third person has already bound him to do. Such, cases are not frequent, and there has not j-et been any full or satisfy- ing judicial discussion of them. It would seem that, being infrequent and of no great importance in current affairs, they should be dis- posed of by the strict application of settled principles, and that, even if such application should lead to apparently fine distinctions, the principles ought not to be tampered with merely to avoid that re- sult. From this point of view, Andrew's performance of his binding promise to Peter does not appear capable of being a consideration for a new promise by John to Andrew ; not because it cannot be bene- ficial to John, for this it may very well be, but because in contempla- tion of law the performance is no new detriment to Andrew, but on already bears, is a good consideration for a promise to give him time until that date; for by such agreement the debtor deprives himself of the right to pay the debt and stop the interest before that date, and the creditor gets the benefit of an interest-bearing investment for a fixed period instead of a period determinable at will. Pierce v. Goldsberry, 31 Ind. 52; Royal v. Lindsay, 15 Kan. 591; Shepherd v. Thompson, 98 Ky. 668; Chute v. Pattee, 37 Me. 102; Simpson v. Evans, 44 Minn. 419; Keirn r. Andrews, 59 Miss. 39; Moore r. Eedding, C9 Miss. 841; Fowler V. Brooks, 13 N. H. 240; McComb v. Kittredge, 14 Ohio, 348; Fawcett v. Freshwater, 31 Ohio St. 637; Benson v. Phipps, 87 Tex. 578. There are, however, a number of decisions to the contrary. Abel v. Alexander, 45 Ind. 523; Hume v. ^lazelin, 84 Ind. 574; Holmes v. Bovd, 90 Ind. 332; Davis v. Stout, 126 Ind. 12; Wilson v. Powers, 130 Mass. 127;' Hale V. Forbis, 3 Mont. 395 ; Grover r. Hoppock, 2 Dutch. 191 ; Kellogg v. Olmsted, 25 X. Y. 189; Parmalee v. Thompson. 45 N. Y. 58; Olmstead v. Latimer, 158 X. Y. 313. See also Hopkins r. Logan, 5 M. & W. 241 ; Verevcken v. Vanden- brooks, 102 Mich. 119; Stryker v. Vanderbilt, 3 Dutch. 68; Toplitz r. Bauer, 161 X. Y. 58: McXish v. Reynolds, 95 Pa. 483; Gibson ;;. Daniel. 17 Tex. 173; Mclntvre v. Ajax Mining Co., 20 Utah, 323, 336; Flanders v. Fay, 40 Vt. 3 16;"^ Stickler V. Giles, 9 Wash. 147: Price r. Mitchell, 23 Wash. 742. A promise by a creditor to forbear until a fixed date in return for the debtor's promise to pay the debt with interest, at the same rate as the debt legally bears by that date, is not, however, a valid contract, as the debtor does not agree to refrain from any legal right. He may pay the debt and stop the in- terest at anv time. McManus v. Bark, L. R. 5 Ex. 65 ; Austin Co. i". Bahn, 87 Tex. 582. Where there was a bona fide dispute as to the medium of payment required by an obligation, satisfaction in one medium was held to extinguish the debt thoujjh less in amount than the debt. San Juan r. St. Johns Gns Co., 19."i U. S. 510. Cp. Saunders v. Whitcomb, 177 Mass. 457. See further, post, n. 20, 21. PROMISES TO PERFORM EXISTING DUTY. 20? the contrary is beneficial to him, inasmuch as it discharges him of an existing obligation. Therefore the necessary element of detriment to the promisee is wanting (q). It seems therefore that if a promise is given in exchange merely for the performance of the promisee's duty under an existing contract with a third person, it is not binding. Authoritj^ however, is the other way so far as it goes. Performance of this kind has been held a sufficient consideration in at least three English reported cases (/•), one from the early seventeenth and two from the middle part *of the nineteenth century. In the first of [ 1 87 these (s) the plaintiff and defendant were jointly liable as sureties on a bond, long before the modern equitable doctrine of contribution between co-sureties was established. In consideration of the plaintifE paying the whole debt, the defendant promised to repay him half. The promise was held binding, but the real difficulty does not appear to have been dealt with (t). In the second case (u) the plaintiff, being engaged to be married, did (on the facts as assumed) proceed with the marriage on the faith of a promise by his uncle, the defend- ant's testator, to pay him an annuity during the promisor's life. The plaintiff succeeded in an action for arrears of the annuity. To the majority of the Court it appeared sufficient to say that the marriage took place at the testator's request. But this (whether rightly said or not) does not answer the question Avhether the simple fulfilment of a promise of marriage already binding on him could be any legal detriment to the promisee. The third case (x), in an entirely difi^erent subject-matter, also goes on the ground of the performance being, in point of fact, both a benefit to the promisor and a detriment to the promisee. Here the defendant's promise was to unload a cargo of (ly) In point of fact there may be {t) It is certainly not touched by some, for it may be that he might the statement, perfectly correct in it- have omitted the performance with self, of Dodderidge J. : " If the con- impunity. But this is like the case sideration puts the other to charge, of a merely honorary promise. The though it be no ways at ah profitable law is made to fit the normal con- to him who made the promise, yet ditions of men's affairs. If every this shall be a good consideration to man's word were as good as his bond, raise a promise." or nobody cared to enforce his rights, (u) Shadiccll v. Shadircll (ISGO) 9 there would be no place for any law C. B. N. S. 159. 30 L. J. C. P. 145, of contract at all. Byles J. diss, chiefly on the ground (r) The point might perhaps have that there was really no ani7)uis con- been considered in Jones v. Waite trakendi, but only an act of bounty, (1839, 1842) 5 Bing. N. C. 341, 9 CI. cp. Langdell, § 68. If there were aiiy & F. 88, 50 E. R. 705, 717, but the animus contrahendi, an acceleration argument and decision were on other of the marriage at the testator's re- grounds, quest would no doubt have made a (s) Bafjge y. Slade (1616) 3 Bulst. good consideration, but that was not 162. This decision Avas apparently averred. forgotten until Prof. Ames lately (x) f^cotson v. Prqcj (1861) G H. & called attention to it. N. 295, 30 L. J. Ex. 225. 208 CONSIDERATION. coal at a certain rate in consideration of the plaintiff delivering the coal to him, which the plaintiff was already bound to do under a prior contract with the shippers of the coal, from whom the defendant had bought it. There is a suggestion in the course of the argument that 188] the performance requested by *the defendant may have added new terms, as to time and manner of delivery, to that which the plaintiff was already bound to do, and it may be that the plaintiff was entitled to succeed on that point, if properly raised. But there is nothing of the kind in the judgment. It seems to be assumed that the rule must be the same whether the consideration relied upon is a performance already due to a third party or a new promise thereof to the defendant. And so the Supreme Court of Massachusetts has thought only a few years ago {y). The validity of this assumption must, however, be examined. Promise to perform obligation to third person under subsisting contract. Let us now take the case of a promise by John to Peter to do some- thing which he has already promised William to do. Such a promise may obviously create a moral obligation ; for Peter may in many ways have a just and reasonable interest in being assured that John will per- form his contract with William. Then is there any reason why it sliould not create a legal obligation, if supported by a sufficient con- sideration on Peter's part? The promise is a new and distinct promise, creating, on the face of it, a new and distinct duty to a new party. Duties to several parties to perform the same thing are simultaneously created in many quite common forms of covenants. Why should they not be created by successive and independent acts? Will any one deny that John's promise to Peter will be binding if given in exchange for a performance — say immediate pa}Tnent of money — by Peter? If it is not, this must be the result of some special rule of legal policy, for no other objection seems possible. But of any such rule of policy there is no trace. If then the promise is binding when given for a performance, why should it be less binding when it is given in exchange for Peter's promise ? There is no reason in the nature of the case for making any difference.^^ If there were (y) Abbott V. Doanc (1895) 163 Mass. 433. 18 The difference is this: John's promise to Peter, when given in exchange for a payment of money by Peter, is binding because the payment of money is a good consideration. Whether the promise of John in this case could be good consideration is immaterial for the payment of money needs no con- sideration. The promise is not illegal and the parties acted under no mis- take. If, however, Peter gives a promise instead of money, there must be good consideration on both sides. Not only must Peter's promise be of the sort which the law regards as sufficient, but John's also must be, or neither is enforceable, and the disputed question is whether John's promise is suffi- cient consideration to support Peter's promise. PROMISES TO PERFORil EXISTING DUTY. 209 -a positive rule of law, founded on reasons of policy, for not allowing John's promise to Peter to perform his contract with *William [ 1 89 to be good, then John's promise would be no consideration; but only because, even though supported by sufficient consideration on the other side and satisfying all ordinary requisites, it was deprived of validity by the positive rule, and therefore made incapable of having any value in contemplation of law. But again, no such positive rule can be produced. It has been said that John's promise is a good con- sideration only if it is binding, and we have no right to assume that it is binding. The answer to this objection is that, if John's promise can be binding, it is made so by the counter-promise, and it is for the objector to show that it cannot be. The objection, in truth, if good for anything, is equally good to prevent mutual promises from ever being a consideration for each other; for in every such case neither promise, taken by itself, is of any legal force or value (2). There is no objection, in any case, to a promise by John to Peter not to rescind a subsisting contract with William, or not to accept a waiver or release of it ; and a promise in that form would certainty be a good consideration. No direct decision has been made in England on the validity of a promise to perform an existing contract with a third person. A negative solution could not be given, it is apprehended, without overruling the cases in which performance has been held sufficient; while a positive one, if the argument above submitted be sound, might be given for independent reasons. Kot that I am at all desirous of upholding the authority of the cases in question. I venture to submit, on the contrary, that they were wrongly decided, or at any rate not on right grounds. "WTiat is *here maintained is that a [ 1 90 promise made for valuable consideration, and otherwise good as between the parties, is not the less valid because the performance will operate in discharge of an independent liability of the promisor to a third person under an independent contract already existing.^® {z) Prof. Williston, upholding the xiv. 496. Prof. Ames (Harv. Law objection originally raised by Sir W. Rev. xii. 515, xiii. 29, 35) holds, on Anson ( now at p. 98 of his 9th ed. ) , the contrary, that both promise and perceived this, and proposed to meet performance are good consideration the difficulty by constructing an en- in cases of this class ; but this in- tirely new theon,- of mutual prom- volves the proposition that any detri- ises: Harv. Law Rev. viii. 27. Mr. ment m fact to the promisee will do, Langdell has dealt with the objec- which I cannot accept. Prof. Harri- tion. and the theory founded on it, in man (on Contracts, p. 67) appears to a masterly reply: Harv. Law Rev. agree with Prof. Ames. 19 The weight of authority in this country is to the effect that neither performance nor promise of performance of an act by a party who was under legal obligation to a third person to perform that act will serve as considera- 14 210 CONSIDER ATION. Rules as to consideration extended to the discharge of contracts. The doctrine of Consideration has been extended with not very happy- results beyond its proper scope, which is to govern the formation of contracts, and has been made to regulate and restrain the discharge of contracts. For example, where there is a contract of hiring with a stipulation that the wages due shall be forfeited in the event of the servant being drunk, a promise not under seal to pay the wages notwithstanding a forfeiture is not binding without a new con- sideration (a). It is the rule of English law (now referred to the same reason, though really older) (h) that a debt of 1001. may be perfectly well discharged by the creditor's acceptance of a beaver hat or a peppercorn, or of a negotiable instrument for a less sum (c), at the same time and place at which the 1001. are payable, or of ten shillings at an earlier day or at another place, but that noth- ing less than a release under seal will make his acceptance of 99Z. in (a) Monkman v. Shephcrdson (c) Goddard v. O'Brien (1882) 9 (1840) 11 A. & E. 411, .52 R. R. .390. Q. B. D. .37 ; Bidder v. Bridges (1887) (6) See Harv. Law Rev. xii. .521. 37 Ch. Div. 406, 57 L. J. Ch. 300. tion. Johnson's Adm. r. Seller's Adm., 33 Ala. 265; Havana Press Drill Co. V. Ashurst, 158 III. 115; Peelman v. Peelman, 4 Ind. 612; Ford v. Garner, 15 Ind. 298; Reynolds r. Nugent, 25 Ind. 328; Ritenour v. Mathews, 42 Ind. 7; Harris v. Cassady, 107 Ind. 156; Brownlee v. Love, 117 Ind. 420; Newton r. C}\icago, &c. Ry. Co., 66 la. 422 ; Schuler r. Myton. 8 Kan. 282 ; Ford v. Cren- shaw, I Litt. "(Ky.) 68; Holloway's Assignee V. Rudy, 60 S. W. Rep. 650 (Ky. ) ; Putnam v. Woodbury, 68 Me. 58; Northwestern Bank v. Great Falls Opera House. 23' Mont. 1, fl; Gordon v. Gordon, 56 N. H. 170; Vanderbilt V. Schreyer, 91 N. Y. 392: Seybolt r. New York, &c. R. R. Co., 95 N. Y. 562; Robinson v. Jewett, 116 N. Y. 40; Arend r. Smith, 151 N. Y. 502; Allen v. Turck, 8 N. Y. App. Div. 50: Sherwin v. Brigham, 39 Ohio St. 137; Wimar V. Overseers, 104 Pa. 317; Hanks v. Barron, 95 Tenn. 275; Kenigsberger v. Wingate, 31 Tex. 42; Davenport r. Congregational Soc, 33 Wis. 387. This view is supported also by Anson (9th ed. ) 98, and Prof. Huffcutt's note; Clark, (2d ed.) 129; VlII Harv. L. Rev. .32. But see contra, Champlain Co. V. O'Brien, 117 Fed. Rep. 271; Humes v. Decatur Co., 98 Ala. 461, 473; Merrick r. Giddings, 1 Mack. (D. C.) 394; Hirsch v. Chicago Carpet Co., 82 111. App. 234: Donnelly V. Newhold. 94 Md. 220: Abbott r. Doane. 163 Mass. 433; Dav v. Gardner, 42 N. J. Eq. 199, 203: Eradlev r. Glenmarv Co., 53 Atl. Rep. 49 ""(N. J. Eq.). See also Green V. Kelley, 64 Vt. 309, and articles by Professor Ames, 12 Harv. L. Rev. 515; 13 ibid. 29, also Harriman, (2nd ed.). The view suggested by the learned author distinguishing between perform- ance and promise of performance, though svipported both by Prof. Langdell, Summ. § 84, XIV. Harv. L. Rev. 490, and Prof. Beale, XVII. Harv. L. Rev. 71, has been adopted in one decision only, and in that case by a dictum, Mer- rick r. Giddings, I Mack. (D. C. ) 394. From a practical standpoint it seems an odd dislincEion. The assurance of future performance given by a promise may be an excellent thing, but to hold that it is a better consideration than actual present performance seems extreme. Similarly performance of a statutory or public duty will not support a prom- ise bv an individual. Voorhees ?". Reed, 17 111. App. 21 ; Shortlo r. Terre Haute. &c. R. R. Co., 131 Ind. 338: Grant v. Green. 41 la. 88; Newton r. Chicago, &c. Rv. Co., 66 la. 422: Kansas City. &c. R. R. Co. v. Morley, 45 Mo. App. 304; Withers v. Ewing, 40 Ohio St. 400. ACCORD AXD SATISFACTION. 211 money at the same time and place a good discharge (d) :-^ although modern decisions have confined this absurdity within the narrowest possible limits (e).-^ A judgment creditor agreed in writing with (d) Pinnel's case (1G02) 5 Co. Rep. paradoxical, is not anomalous. Its 117, confirmed with reluctance by the numerical logic may be archaic, but House of Lords in Foakes v. Beer it is strictly logical. The Court does (1884) 9 App. Ca. G05, 54 L. J. Q. B. not know judicially what a beaver 130, Lord Blackburn all but dissent- hat may be worth, but it must know ir.g. The Indian Contract Act (s. G3, that lOZ. are not worth 20L illust. b.) is accordingly careful to fe) See the notes to Cumber v. express the contrary. The rule in ^.an€ (1719) in 1 Sm. L. C. Pinnel's case, it may be noted, though -0 The doctrine of Foakes v. Beer is criticised by Professor Ames in 12 Harv. L. Rev. 522 seq., both on the authority of early authorities not cited by the court and on principle. He quotes a number of judicial criticisms of the doctrine. It has, however, been followed in this country so widely that ex- cept where changed by statute it may be regarded as established. The author- ities are fully collected in 20 L. R. A. 785, n: 57 Cent. L. J. 244. A few re- cent decisions are Fire Ins. Association v. Wickham, 141 U. S. 564, 578; Reynolds v. RcatioMs, 55 Ark. 369; Davidson i". Burke. 143 111. 139; Beaver r. Fulp, 136 Ind. 595; Mannakee v. McCloskey, 23 Ky. L. Rep. 515; Specialty Glass Co. r. Daley, 172 :Mass. 460; Saunders v. Wliitcomb, 177 Mass. 457 Leeson v. Anderson, 99 Mich. 247; Murphy v. Kastner. 50 N. J. Eq. 214 Rettinghouse V. Ashland, 106 Wis. 595. Cfl, Ennis V. Pullman, 165 111. 161 Jordan r. Great Northern Ry. Co. 80 Minn. 405. 21 " The law has been changed by statute in India, Indian Contract Act, § 63, and in at least ten of our States: Ala. Code. § 2774; Cal. Civ. Code, § 1524; Dak. Comp. Laws, § 3486; Ga. Code, § 3735; Maine Rev. St., c. 82, § 45; Xo. Car. Code, § 574; X. Dak. Rev. Code, § 3827; Hill, Ann. Laws of Oregon, § 755; Tenn. Code (1884), § 4539; Va. Code (1897), § 2858. In one State, Mississippi, the rule was abolished by the court without the aid of a statute. Clayton v. Clark, 74 Miss. 499. See also to the same effect. Smith V. Wyatt, 2 Cincin. Sup. Ct. 12. By decision, too, in some States a parol debt may be satisfied if the creditor gives a receipt in full for a partial pay- ment. Green r. Langdon, 28 Mich. 221; Lamprey v. Lamprey, 29 Minn. 151 (senihle) ; Gray r. Barton, 55 X. Y. 68; Ferry r. Stephens, 66 X. Y. 321; [ace. Holmes r. Holmes, 129 Mich. 412; contra, Warren r. Skinner. 20 Conn. 559; Bingham v. Brooming, 197 111. 122. See also Randall r. Brodhead, 60 X. Y. App. Div. 567]. In others, partial payment is a satisfaction if the debtor is insolvent. Weseott );. Waller, 47 Ala. 492, 498 {semhlr) -. Shelton V. Jackson, 20 Tex. Civ. App. 443 [ace. Engbretson r. Seiberling, 122 la. 522; contra, Pearson v. Thomason. 15 Ala. 700; Beaver r. Fulp, 136 Ind. 595], or even if he is honestly believed to be insolvent. Rice v. London Co., 70 Minn. 77." Professor Ames, 12 Harv. L. Rev. 525. An unliquidated or disputed claim is not within tho scope of the rule. As to what comes imder this heading, see Chicago, &c. Rv. Co. r. Clark. 178 U. S. 353, 367; Ostrander v. Scott, 161 111. 339; Bingham r. Browning. 197 111. 122; Tanner r. Merrill, 108 Mich. 58; Pollman Coal Co. v. St. Louis. 145 Mo. 651; Fuller r. Kemp. 138 X. Y. 231; Xassoiv r. Tomlinson, 148 X. Y. 326; Riggs V. Protection Assoc, 61 S. C. 44&. Cp. ']\Iiller v. Coates, 66 X. Y. 609. Nor does the rule apply to pavment bv a third partv. Marshall v. Bullard, 114 la. 462. A note or promise of one joint debtor to pay the whole or part of the debt m.av discharge the debt. Thompson r. Percival. 5 B. & Ad. 925; Lvth v. Ault, 7 Ex. 669; ':\Iorris Co. r. Van Vorst. 1 Zab. 100, 119; Ludinerton 'r. Bell, 77 N. Y. 138; Allison v. Abendroth, 108 N. Y. 470; JaflFray v. Davis. 124 N. Y. 164, 173. See. however, contra. Early r. Burt, 68 la". 716. In Bendix r. Ayers, 21 X. Y. App. Div. 570, it was held that payment of part of a firm 212 COXSIDERATION. the debtor to take no proceedings on the judgment in consideration of immediate payment of part of the debt and payment of the residue by certain instalments; here there was no legal consideration for the 191 ] creditors promise, and he was entitled *to claim interest on the debt though the whole of the principal was paid according to the agree- ment (/). This rule does not touch the ordinary case of a composition between a debtor and several creditors; for every creditor undertakes to accept the composition in consideration of the like undertaking of the other creditors as well as of the debtor's promise to pay it (g). The consideration for variation of contracts. If it is agreed between creditor and debtor that the duty shall be performed in some par- ticular way different from that originally intended, this may well be binding: for the debtors undertaking to do something different though only in detail from what he at first undertook to do, or even relinquishing an option of doing it in more ways than one, would be consideration enough, and the Court could not go into the question whether it gave any actual advantage to the creditor. But if the new agreement amounts to saying that the debtor shall at his own option perform the duty as at first agreed upon or in some other way, it cannot be binding without a new consideration : as where an entire sum is due, and there is an agreement to accept payment by instal- ments, this would be good, it seems, if the debtor undertook not to tender the whole sum; but in the absence of anything to show such an undertaking, the agreement is a mere voluntary indulgence, and the creditor remains no less at liberty to demand the whole sum than the debtor is to pay it (li). Loss or forbearance of rights as consideration. The loss or abandonment of any right, or the forbearance to exercise it for a definite or ascertain- able time, is for obvious reasons as good a consideration as actually (f) FoaJces v. Beer (1884) 9 App. allowed to issue execution for the in- Ca. 605, 41 L. J Q. B. 130, foil, in terest: Bidder v. Bridges (1887) 37 Underwood v. Underwood [1894] P. Lh. Div. 40G, 57 L. J. Ch. 300. [But 204, 63 L. J. P. 109. But where the see 20 L. R. A. 791.] solicitor of a defendant entitled to (g) Good v. Cheesman (1831) 2 B. taxed costs accepted from the plain- & Ad. 328, Finch Sel. Ca. 343, 36 R. tiff's solicitor a cheque for the R. ,574. amount of costs (nothing being said (7i) McManus v. Bnrk (1870) L. about interest), this was held to be R. .5 Ex. 65, 39 L. J. Ex. 65. Cp. an accord and satisfaction for every- Foakes v. Beer, note (d) , last page, thing due, and the defendant was not debt by retiring partners was sufficient consideration to support a promise to discharge those partners from further liability. But this is opposed to Peering v. Moore. 86 Me. 181: Weber r. Couch, 134 :Mass. 26; Line r. Nelson, 38 N. .J. L. 358 ; Harrison v. Wilcox, 2 Johns. 448 ; Martin r. Frantz, 127 Pa. 389. FORBEARANCE. 213 doing something. In Mather v. Lord Maidstone (i) the loss of *collateral rights by the promisee supported a promise notwith- [192 standing that the main part of the consideration failed. The action was on a bill of exchange. This bill was given and endorsed to the plaintiff as in renewal of another bill purporting to be accepted by the defendant and endorsed to the plaintiff. The plaintiff gave up this llrst bill to the defendant; thirty days afterwards it was discovered that it was not really signed by the defendant : yet it was held that he was liable on the second bill, for the plaintiff had lost his remedy against the other parties to the first bill during the time for which he had parted with the possession of it, and that was consideration enough. Forbearance to sue; must be for definite or ascertainable time. As to forbearance, the commonest case of this kind of consideration is for- bearing to sue. Forbearance for a reasonable time is enough, on the principle of certum reddi potest: and terms in themselves vague, such as " forbearing to press for immediate payment," may be con- strued by help of the circumstances and context as meaning forbear- ance for a reasonable time. A promise to guarantee a debt if the creditor will give time to the principal debtor is in the first instance an offer; it becomes a binding promise when the condition of giving the specified time, or a reasonable time, has been performed. It is a question of fact what is reasonable time in a given case (Jc).^^ (i) (1850) 18 C. B. 273, 25 L. J. Q. R. ill. 484, it must be taken, with C. P. 310. the head-note, that the consideration (fc) Oldershaio v. King (1857) was actual forbearance. The promise (Ex. Ch.) 2 H. & N. 517, 27 L. J. Ex. being in tne form of a promissory 120, and see 1 Wms. Saund. 225. In note," i. e., essentially unconditional, Alliance Bank v. Broom (1804) 2 certainly makes a difficulty, for it Dr. & Sm. 289, 34 L. J. Ch. 950, ac- M-ould "seem there was a complete tual forbearance at the defendant's promise before the consideration, viz. request, though not for any specified forbearing to sue for a reasonable time, was held sufficient. Cp. Wilbi/ time, was or could be executed. On V. Elgee (1875) L. R. C. P. 497. In the principle see per Bowen L.J. in Crears v. Hunter (1887) 19 Q. B. Miles v. New Zealand Alford Estate Div. 341, 56 L. J. Q. B. 518. which Co. (1885-6) 32 Ch. Div. at p. 289. has been criticized as ambiguous, L. 22 Actual forbearance is as good consideration as a promise to forbear. No reason can be suggested why unilateral contracts of this sort are invalid. Edgerton v. Weaver, 105 111. 43; Newton r. Carson, SO Kv. 309; Home Ins. Co. V. Watson, 59 N. Y. 390 ; Strong v. Sheffield, 144 N. Y. 392. There are contrary decisions: Mecornev r. Stanley, 8 Cush. 85: Manter r, Churchill. 127 INIass. 31; Shupe r. Galbra'ith, 32 Pa. 10. See also Shadburno V. Daly, 76 Cal. 355; Lambert r. Clowley. SO ]\Ie. 480. The reasoning is un- satisfactory in these cases. The assumption seems to be made that because the promisee is free to forbear or not, as he chooses, there can be no valid 214 CONSIDER ATIOX. There must be an actual or bona fide disputed right. That which is forborne must also be the exercise or enforcement of some legal or equitable right which is honestly beliered to exist. This is simply the converse of a rule already given. As a promise by A, to B. is 193] naught *if it is only a promise to do something A. is already bound, either absolutely or as against B., to do, so it is equally worthless if it is a promise not to do something which B can already, as a matter either of public or of private right, forbid A. to do. Why compromises are binding. So far we assume the existing rights of the parties to be known: but as in practice they often are not known, but depend on questions of law or of fact, or both, which could not be settled without considerable trouble, common sense and convenience require that compromises of doubtful rights should be recognized as binding, and they constantly are so recognized. " If an intending litigant bona fide forbears a right to litigate a question of law or fact which it is not vexatious or frivolous to litigate, he does give up something of value "(0 ; and such forbearance is good con- s-ideration for a promise even though the claim is not well founded, provided it is honestly believed in and the promisee does not conceal from the promisor any fact which to his knowledge would affect its validity (m).^^ (I) Miles v. Neiv Zealand Alford Bowen L.J. at p. 291, reviewing pre- Estate Co. (1885-6) 32 Ch. Div. 266, vious cases and dicta. (m) Cotton L.J. ib. at p. 284. contract. But the situation is the same as in any unilateral contract. Until the act is done both parties are free. Then a bindinjj^ contract arises. If, by the terms of the offor, the forbearance is to be perpetual, there cannot, there- fore, be a imilateral contract, but this is the only qualification to be made. Where the promise is to forbear without naming a time it is generally assumed that a reasonable time is intended. Moore v. McKenney, 83 Me. 80; Haskell i'. Tul%;esbury, 92 Me. 551; Howe v. Taggart, 133 Mass. 284; Glasscock v. Glasscock, 00 Mo. 627 ; Hockenbury ads. Meyers, 34 N. J. L. 346 ; Elting V. Vanderlyn, 4 Johns. 237 ; Traders' Nat. Bank v. Parker, 130 N. Y. 415; Citizens' Bank r. Babbitt, 71 Vt. 182. But a promise to forbear generally has in some cases been construed to mean perpetual forbearance. Ha\Tnaker v. Eberly, 2 Binn. 506 ; Clark v. Russell, 3 Watts, 213. It would seem a question of construction in each case what the parties in fact meant. 2.3 In America some courts have shown a disposition to follow the doctrine of the late English decisions. Union Bank r. Geary, 5 Pet. 99; Baldwin v. Central Bank, 17 Col. App. 7; Morris v. Mimroe, 30 Ga. 630; Hayes v. Massachusetts Co.. 125 111. 625. 639: Ostrander V. Scott. 161 111. 339: Murphy V. Murphy, 84 111. App. 292 (compare Herbert v. Mueller, 83 111. App. 391) ; Melcher v. Insurance Co., 97 Me. 512; Prout IK Pittsficld Fire District, 154 Mass. 450; Dunbar r. Dunbar, 180 Mass. 170; Dailey r. King, 79 Mich. 568; Lesson v. Anderson, 99 Mich. 247; Demara v. Musser-Santry Co., 37 Minn. FORBEAR AXCE. 215 The real consideration and motive of a compromise, as well in our law as in the civil law and systems derived from it, is not the sacrifice of a right but the abandonment of a claim (n). The same rule applies in the case where the claim given up is on a disputed promise of marriage (o). A partial compromise in which the undertaking is not simply to stay or not to commence legal proceedings, but to con- duct them in some particular manner or limit them to some particu- lar object, may well be good: but here again the forbearance must relate to something within the proper scope of such proceedings. A promise to conduct proceedings in bankruptcy so as to injure the debtor's *credit as little as possible is no consideration, for it is [1 94 in truth merely a promise not to abuse the process of the court (p).^'^ (n) Trigge v. LavalUc (1864) 15 (o) Keenan v. Handley (1864) 2 Moo. P. C. 271, 292 (a case from D. J. S. 283. Lower Canada, then under old Fr. (p) Braceicell v. Williams (1866) law). WilUj v. Elgee (1875) L. R. L. R. 2 C. P. 196. 10 C. P. 497, 44 L. J. C. P. 254. 418; Hansen i\ Gaar. 63 Minn. 94; Grandin v. Grandin, 49 N. J. L. 508 Wahl V. Barnum, 116 N. Y. 87; Zoebisch V. Von Minden, 120 N. Y. 406 Sears v. Grand Lodge, 163 N. Y. 374, 379; Di lorio r. Di Brasio, 21 R. I. 208 Bellows V. Sowles, 55 Vt. 391; Citizens' Bank v. Babbitt, 71 Vt. 182; Hewett V. Currier, 63 Wis. 386. The definition given by other courts seems to require the claim forborne to be at least reasonably doubtful in fact or law in order to make the for- bearance or promise to forbear a good consideration. Stewart v. Bradford, 26 Ala. 410; Ware v. Morgan, 67 Ala. 461; Richardson v. Comstock, 21 Ark. 69; Russell v. Daniels, 5 Col. App. 224; Mulholland v. Bartlett, 74 111. 58; Bates V. Sandy, 27 111. App. 552 (see later Illinois cases, supra) ; U. S. Mort- gage Co. V. Henderson, 111 Ind. 24; Sweitzer v. Heasly, 13 Ind. App. 567 (compare Moon v. Martin, 122 Ind. 211) ; Tucker v, Ronk, 42 la. 80; Peter- eon V. Breitag, 88 la. 418; Potts v. Polk Co., 80 la. 401 (see Richardson Co. r. Hampton, 70 la. 573); Price v. First Nat. Bank, 02 Kan. 743; Cline v. Templeton, 78 Ky. 550; Mills r. O'Daniel, 62 S. W. Rep. 1123 (Ky.) (compare Waller's Adm. v. Marks, 100 Ky. 541); Schroeder v. Fink, 60 Md. 436; Emmittsburg v. Donoghue, 67 Md. 383; Palfrey v. Portland, &c. R. R. Co., 4 Allen, 55 (see later Massachusetts cases, supra) ; Tavlor v. Weeks, 129 Mich. 233; Foster v. Metts, 55 Miss. 77: Gunning r. Roval, 59 Miss. 45; Long r. Towl, 42 Mo. 545; Corbyn v. Brokmeyer, 84 Mo. App. 649; Kidder v. Blake, 45 N. H. 530 (see Pitkin v. Noyes, 48 N. H. 294) ; 0. & C. R. R. Co. v. Potter, 5 Oreg. 228; Fleming v. Ramsey, 46 Pa. 252: Sutton v. Dudley, 193 Pa. 194; Warren v. Williamson, 8 Baxter, 427: Davisson v. Ford, 23 W. Va. 617 (see Billingsley r. Clelland, 41 W. Va. 234). 24 A distinction not brought out by the English decisions and not referred to by the author is tliat between consideration and condition. If A. says to B., I will give you $100 if you break your leg, it is not probable that A. means to request B. to break his leg, as the exchange or equivalent for the promise. The breaking of the leg is merely the event upon the happening of which A. will give a gratuity. In theory any act whatever may be stated either as the condition or the consideration of a promise. See Langdell Summ. Cont., § 66; Holmes Common Law. p. 292; but the courts favor the construction of consideration. In Kirksey v. Kirksey, 8 Ala. 131, the de- 216 CONSIDERATION. Reaction of the general doctrine of Consideration on contracts under seal. The main end and use of the doctrine of Consideration in our modern law is to furnish us with a comprehensive set of rules which can be applied to all informal contracts without distinction of their char- acter or subject-matter. Formal contracts remain, strictly speaking, outside the scope of these rules, which were not made for them, and for whose help they had no need. But it was impossible that so general and so useful a legal conception as that of Consideration should not make its w^ay into the treatment of formal contracts, though with a different aspect. The ancient validity of formal con- tracts could not be amplified, but it might be restrained : and in fact both the case-law and the legislation of modern times show a marked tendency to cut short if not to abolish their distinctive privileges, and to extend to them as much as possible the free and rational treat- ment of legal questions which has been developed in modern times by the full recognition of informal transactions. Most conspicuous in Equity. This result is mainly due to the action of the Court of Chancery. A merely gratuitous contract under seal is enforceable at common law (with some peculiar exceptions) unless it can be shown that behind the apparently gratuitous obligation fendant wrote to his brother's widow: "If you will come down and see me, I will let you have a place to raise your family, and I have more open land than I can tend; and on the account of your situation and that of your family, I feel like I want you and the children to do well." The widow came as requested, but it was held no contract was created thereby. The decision was followed in Forward i\ Armstead, 12 Ala. 124; Bibb r. Freeman, 59 Ala. 612. In the latter case the court said: " It is often a mat- ter of great difficulty to discern the line which separates promises creating legal obligations from mere gratuitous agreements. Each case depends so much on its own peculiar facts and circumstances that it affords but little aid in determining other cases of differing facts. Tlie promise or agree- ment, the relation of the parties, the circumstances surrounding them, and their intent, as it may be deduced from these, must determine the inquiry. If the purpose is to confer on the promisee a benefit from affection and generosity, the agreement is gratuitous. If the purpose is to obtain a quid pro quo — if there is something to be received, in exchange for which the promise is given, the promise is not gratuitous, but of legal obligation." See also in accord, Boord r. Boord, Pelham (So. Aust.), 58. But there are other decisions where promises Avere enforced though it seemed pretty clear that the so-called consideration was not in fact requested in retiirn for the promise. Shirley v. Harris. 3 McLean. .330; Berry r. Graddy. 1 ^Metc. (Ky. ) 553: Bigelow r.'Bigelow. flo Me. 17; Devecmon r'. Shaw, 69 Md. 199; Steele V. Steele, 75 Md. 477 ; Adams i'. Honness, 62 Barb. 326 ; Richardson r. Gosser, 26 Pa. 335. The most noticeable illustration of the tendency of the courts to treat as consideration a detriment Avhich was intended merely as a con- dition is afforded by cases of charitable subscriptions. See svpi-a, p. *169. n. 3. In regard to the enforcement by courts of equity of gratuitous promises relating to land in order fo prevent a fraud, see Pomeroy on Eq. Jur., § 1294; Ames, Cas. on Eq. Jur. 306-309. RULES OF EQUITY. 217 there is in fact an unlawful or immoral consideration.-^ Courts of equity did not, in the absence of any special ground of invalidity, interfere with the legal effect of formal instruments: but they would not extend their special protection and their special remedies to agreements, however formal, made without consideration. A volun- tary covenant, though under seal, " in equity, where at least the covenantor is living (g), or where *specific performance of such a [ 1 95 covenant is sought, . . . stands scarcely, or not at all, on a better footing than if it were contained in an instrument unsealed" (r).^^ iq) We shall see xnider the head if the donor, or even his representa- of undue influence that a system of lives, choose within any reasonable presumptions has been established time afterwards to dispute it. which makes it difficult in many (r) Per Knight Bruce L.J. Keke- cases for persons claiming under a vich v. Manning (18.51) 1 D. M. G. voluntary deed to uphold its validity 170, 188. 25Krell V. Codman, 154 Mass. 454; Aller v. Aller, 40 N. J. L. 44G ; Harrell V. Watson, 63 N. C. 454; Ducker v. Whitsoii, 112 N. C. 114; Burkholder's Ex. V. Plank, 69 Pa. 225; Harris v. Harris, 23 Gratt. 737. In many States the distinction between sealed and unsealed written con- tracts is abolished. Alaska, Code Civ. Proc, § 1041; Arizona, Civ. Code (1901), § 4054; California, Civ. Code, § 1932; Idaho, Rev. Stat. (1887), § 3227; Iowa, Code (1897), § 3068; Kentucky, Comp. Stat. (1894), § 472; Mississippi, Code (1892), §§ 4079, 4081; Missouri, Rev. Stat. (1899), § 893; Montana. Civ. Code (1895), §§ 2190, 2191; Nebraska, Comp. Stat. (1899), § 4951; Nevada, Gen. Stat. (1885), § 2607; North Dakota, Rev. Code (1895), § 3892; Ohio, Bates' Annot. Stat. (1900), § 4; Oklahoma, Stat. (1893). § 820; South Dakota, Annot. Stat. (1901), § 4738; Tennessee. Code (1884), § 2478; Texas, Rev. Stat. (1895), Art. 4862. See also Alaska, Code Civ. Proc, § 1041; Indiana, Code Civ. Proc, § 450. In most of these States it is also enacted that any written contract shall be presumed to have been made for sufficient consideration; but if lack of con- sideration is affirmativelv proved the contract is invalid. Arizona, Civ. Code (1904), § 4055; California, Civ. Code, § 1963 (39) ; Idaho, Rev. Stat. (1887), § 3222; Iowa, Code (1897), § 3069; Kentuckv, Comp. Stat. (1894), § 471; Mississippi, Code (1892), §§ 4080, 4082; Missouri, Rev. Stat. (1899), § 894; Montana, Civ. Code (1895), § 2169; North Dakota, Rev. Code (1895), § 3880; South Dakota, Annot. Stat. (1901), § 4727 (2); Tennessee, Code (1884), § 2479; Texas, Rev. Stat. (1895), Art. 4863. See also Rhode Island Gen. Laws (1896), c. 202, § 4. In other States it is enacted only that sealed contracts shall be presumed in the absence of contrary evidence to have been made for sufficient con- sideration, and in such States sealed contracts differ from ordinary written contracts to this extent. Alabama, Code (1890), § 3288; ]\Iichigan, Comp. Laws (1897), §§ 10185, 10180; New Jersey, Gen. Stat. (1895). p. 1413, § 72; New York, Birdseve's Rev. Stat. (1896), p. 1099, § 14; Oregon, Hill's Annot. Laws (1892), § 753; Wisconsin, Annot. Stat. (1889), § 4195. 26 Barrett v. Geisinger, 179 111. 240, 249; Crandall r. Willig, 100 111. 233; Selby v. Case, (Md. App.) 39 Atl. 1041: Black r. Cord. 2 H. & G. 100; Lamprev v. Lamprev, 29 Minn. 151; Vosser v. Vosser. 23 Miss. 378, 382; Tunison v. Bradford' 49 N. J. Eq. 210; Havs V. Kershaw. I Sandf. Ch. 258, 261 ; Short i\ Price, 17 Tex. 397 ; Graybill V. Brugh, 89 Va. 855. That the plaintiff in equity need not allege consideration, but the defendant must allege and prove the contrary, was held in Mills r. Larrance, 186 111. 635; Borel v. Mead. 3 N. Mex. 84. See also Carey r. Dyer. 97 Wis. 554. See, however, to the contrarv, the criticism in 14 Harv. L. Rev. 387 and Mayger V. Cruse, 5 Mont. 485. " 218 CONSIDERATION. And this restriction is not affected by the union of legal and ec|uitable jurisdiction in the High Court of Justic-e. No specific performance of voluntary agreement though by deed. The rule that a court of equity will not grant specific performance of a gratuitous contract is so well settled that it is needless to cite further authorities for it: and it is not to be overlooked that whereas the other rules that limit the application of this peculiar remedy are of a more or less discretionary kind, and founded on motives of con- venience and the practical requirements of procedure rather than on legal principle, this is an absolute and unqualified rule which must he considered as part of the substantive law. But existence of consideration may be shown aliunde. It is the practice of equity, however, at all events when the want of consideration is actively put forward as an objection (and the practice must be the same, it is conceived, when the objection is made by way of defence in an action for specific performance) , to admit evidence of an agree- ment imder seal being in fact founded on good consideration, where the deed expresses a nominal consideration (s) or no consideration at all (t), though (save in a case of fraud or illegality) a considera- tion actually inconsistent with that expressed in the deed could probably not be shown (s). Equity will not give effect to imperfect gifts. Closely connected with this in principle is the rule of equity that, although no consideration is required for the validity of a complete declaration of trust (u), or a complete transfer of any legal or equitable interest in property, yet 196] an incomplete voluntary gift creates no right which can be *en- forced.-" Thus a voluntary parol gift of an equitable mortgagee's security is not enforceable; and, since his interest in the deeds de- posited with him, where the mortgage is by deposit, is merely inci- dental to his security, delivery of such deeds by the mortgagee to his donee makes no difference, and does not entitle the donee to retain them against the mortgagee's representatives (x). Certain modern (s) Leifchild's case (1865) L. R. 1 (m) Qu. whether this was origi- Eq. 231. nally ri^ht on principle. it) Llanelly Ry. and Dock Co. v. (x) Hhillito v. Hohson (1885) 30 L. & S. TF. Ry. Co. (1873) L. R. 8 Ch. Div. 396, 55 L. J. Ch. 741. The Ch. 942, delivery over seems to be a trespass against the depositor. 2TDor.sey v. Packwood, 12 How. 126, 137; Estate of Webb, 49 Cal. 541; Wadhanis v. Gay, 73 111. 415; Baltimore Retort Co. v. Mali, 65 Md. 63; Stone V. Hackett, 12 Gray, 227; Young r. Young, 80 N. Y. 422; Perry on Trusts, § 90 el seq.; Crooks v. Crooks, 34 Ohio St. 610, 615; Carhart's Appeal, 78 Pa. 100, 119. RULES OF EQUITY. 219 decisions have indeed shown a tendency to infringe on this rule by construing the circumstances of an incomplete act of bounty into a declaration of trust, notwithstanding that the real intention of the donor was evidently not to make himself a trustee, but to divest him- self of all his interest (?/). But these have been disapproved in still later judgments which seem entitled to more weight (z).^ (;/) Richardson v. Richardson 18 Eq. 11, 43 L. J. Ch. 459; Moore (1867) L. R. 3 Eq. 686. 36 L. J. Ch. v. Moore '(1874) L. R. 18 Eq. 474, 653; Morgan v. Malleson (1870) L. 43 L. J. Ch. 617; Hcartley v. Nichol- R. 10 Eq. 475, 39 L. J. Ch. 680. son (1874) L. R. 19 Eq. 233, 44 L. J. (z) Warriner v. Rogers (1873) Ch. 277. Cp. Breton v. WooUven L. R. 16 Eq. 340, 42 L. J. Ch. 581: (1881) 17 Ch. D. at p. 420, 50 L. J. Richards v. Delbridge (1874) L. R. Ch. 369. 28Barnum v. Read, 136 111. 388; Bennett v. LittlefieLl, 177 Mass. 294; Young r. Young, 80 N. Y. 422, 439; Beaver v. Beaver, 117 N. Y. 421, 137 N. Y. 59; Sullivan v. Sullivan, 161 N. Y. 554; Flanders v. Blandy, 45 Ohio St. 108. 220 PEKSONS ATFECTED BY COXTEACT. 197] *CHAPTEE V. Persons affected by Coxteact. provi- third right PAGE. Preliminary, 220 Definitions and rules^ 221 1. Parties must be certain, 223 2. Third persons not bound, 224 Apparent exceptions, 225 Novation, 227 3. Third persons not entitled by the contract itself. Apparent exceptions. Trusts, Exception of certain sions for children. Statutory exceptions, Contract for benefit of person gives him no of action at law, Authorities in equity, Tliird person cannot be em- powered to sue for conven- ience of parties. Negotiable instrimients pay- able to holder of office. Law of the United States, Distinctions of property rights, agency, novation, etc.. Contracts for the sole benefit of a third person. Contracts to discharge a debt of the promisor. Law of Massachusetts denies rights to sole beneficiary. Law of other States, Life insurance and other illus- trative cases. 228 228 230 231 232 233 233 235 236 237 237 242 244 247 249 251 Law as to promises to dis- charge a debt. Assumption of mortgages. Other illustrative cases. Rights of the promisee, Creditor's right to sue both debtor and new promisor, Defences, Rescission or release. Contracts under seal. Incidental beneficiaries, 4. Assignment of contracts. Notice to debtor. Assignment '' subject to equi- ties," Assignment free from equities by agreement of parties: transferable debentures. Negotiable instruments. Rights of bona fide holder, What instruments may be negotiable. How instruments may cease to be negotiable. Transferable shares. Obligations attached to prop- erty. Covenants running with land. Bills of lading, Conflict between common law and equity as to burden of covenants running with the land. The foundation of the equi- table doctrine. 255 2G0 206 268 270- 271 273 276 277 278 281 284 287 290 291 292 294 295 297 298 302 304 305^ General Rules as to Parties. Original type of contract. The original and simplest tj^pe of contract is an agreement creating an obligation between certain persons. The persons are ascertained by their description as individuals, and not by their satisfying any general class description: or, more shortly, they are denoted by proper names and not by class names (a.). And the persons who become parties in the obligation created by the agreement are the persons who actually conclude the agreement in the first (a) Savignv, Obi. § 53 (2. 16), cp. on the subject of this chapter generally, ih. §§ 53-70, "pp. 17-186. PARTIES TO CONTRACT. 221 instance, and those onl}'. The object of this chapter will be to point out the extent to which modern developments of the law of contract have altered this primary type either by modifications co-extensive with the whole range of contract or by special classes of exceptions. The fundamental notion from which we must take our departure is one that our own system of law has in common with the Roman system and the modern law of other civilized countries derived there- from. A wide statement of it may be given in the shape of a maxim thus : Legal effects confined to contracting parties. The legal effects of a con- tract are confined to the contracting parties. This, like most, if not all, legal maxims, is a generalization which can be useful only as a compendious symbol of *the particulars [198 from which it is generalized, and cannot be understood except by reference to those particulars. The first step towards the necessary development may be given in a series of more definite but still very general rules, which we shall now endeavour to state, embodying at the same time those qualifications, whether of recent introduction or not, which admit of being stated in an equally general form. Definitions. It will be convenient to use certain terms in extended or special senses. A contract creates an obligation between the con- tracting parties, consisting of duties on the one part and the right to demand the performance of them on the other. " Creditor " and " debtor." Any party to a contract, so far as he be- comes entitled to have anything performed under the contract, is called the creditor. So far as he becomes bound to perform anything under the contract he is called the debtor. "Representation." Be presentation, representatives, mean respectively succession and the person or persons succeeding to the general rights and liabilities of any person in respect of contracts, whether by reason of the death of that person or otherwise. " Third person." A th ird person means any person other than one of the parties to the contract or his representatives (6). Rules. 1. Parties. The original parties to a contract must be persons as- certained at the time when the contract is made. (b) Contracts for the sale of land parties. But here the obligation is are enforceable in equity by and treated as attached to the particular against the heirs or devisees of the property. 222 PERSONS AFFECTED BY CONTRACT. 2. Third persons not bound. The creditor can demand performance from tlic debtor or his representatives. He cannot demand nor can the debtor require him to accept performance from any third person ; but the debtor or his representatives may perform the duty by an agent. 199] *3. Third person not entitled. A third person cannot become entitled by the contract itself to demand the performance of any duty under the contract. This is subject to an exception as to provisions contained in a set- tlement made upon and in consideration of marriage for the benefit of children to be born of the marriage (c). 4. Assignment. Persons other than the creditor may become entitled by representation or assignment to stand in the creditors place and to exercise his rights under the contract. Explanation 1. Notice to debtor. Title by assignment is not com- plete as against the debtor without notice to the debtor, and a debtor who performs his contract to the original creditor without notice of any assignment by the creditor is thereby discharged. Explanation 2. Equities. The debtor is entitled as against the rep- resentatives, and, unless a contrary intention appears by the original contract, as against the assignees of the creditor to the benefit of any defence which he might have had against the creditor himself. The following exceptions given here in order to complete the gen- eral statement are connected in principle with the cases of a contract for personal services or the exercise of personal skill becoming im- possible of performance by inevitable accident, of which we speak in Chapter YIII. below. Exception 1. Strictly personal duties. If it appears to have been the ' intention of the parties that the debtor should perform any duty in person, he cannot perform it by an agent, nor can performance of it be required from his representatives. Such an intention is presumed in the case of any duty which involves personal confidence between the parties, or the exercise of the debtor's personal skill. 200] '-'Exception 2. Strictly personal rights. If it appears to have been the intention of the parties that only the creditor in person should be entitled to have any duty performed, no one can become entitled by representation or assignment to demand the performance of it, nor can such performance be required from the debtor's representatives. (c) See p. *210, below. GENERAL RULES. 233 Such an intention is presumed if the nature of the transaction in- volves personal confidence between the parties, or is otherwise such that " personal considerations " are of the foundation of the con- tract (d). Exception 3, The representatives of a deceased person cannot sue for a breach of contract in a case where the breach of contract was in itself a merely personal injury, unless special damage to the estate which they represent has resulted from the breach of contract. But where such damage has resulted the representatives may recover com- pensation for it, notwithstanding that the person whose estate they represent might in his lifetime have brought an action of tort for the personal injury resulting from the same act (e). These propositions are subject to several special qualifications and exceptions. Most of the exceptions are of *modern origin, and [201 we shall see that since their establishment many attempts have been made to extend them. Such attempts have in some departments been successful, while in others exceptions which for some time were admitted have been more recently disallowed. We shall now go through the rules thus stated in order, pointing out under each the limits within which exceptions are admitted in the present state of the law. The decisions which limit the exceptions are (as commonly happens in our books) for the most part the cliief authorities to show the existence of the rules. Rule 1. Parties must he ascertained. Our first rule is that the original parties to a contract must he persons ascertained at the time when the conract is made. It is (fZ) Cp. Indian Contract Act, ss. dated Portland Cement Manufactur- 37, 40. See Stevens v. Benning ers [1901] 2 K. B. 811, 70 L. J. K. B. (1854) 1 K. & J. 168, 24 L. J. Ch. 1036. If in any of these cases the 153; Farroio \. Wilson (1869) L. R. transaction is continued by mutual 4 C. P. 744, 746, 38 L. J. C. P. 326 ; consent, it is a new contract, e. g., if Rohinson v. Davison (1871) L. R. 6 a servant continues his service with Ex. 269, 40 L. J. Ex. 172; Finlay v. a deceased master's family, or if a Chirney (1888) 20 Q. B. Div. 494, 57 painter's executor, beinj^ also a L. J. Q. B. 247 : Rohson v. Drum- painter, were to complete an \m- mond (1831) 2 B. & Ad. 303, 36 R. finished portrait on the original R. 509; but this case goes very far: terms at the sitter's request. British Wagr/G7i Co. v. Lea d- Co. (e) See 1 Wms. Exors. 709. 9th (1880) 5 Q. B. D. 149, 152, 49 L. J. Q. ed., and Bradshaio V. Lancashire d B. 321, and will not be extended: Yorkshire R>/. Co. (1875) L. R. 10 Phillips v. Hnll Alhamhra Palace Co. C. P. 189. 44 L. J. C. P. 148 (since [1901] 1 Q. B. 59. 70 L. J. Q. B. 26. questioned in Leggott v. G. N. Ry. An assignment which would impose Co. (1876) 1 Q. B. D. 599, 45 L. J. a novel burden on the debtor is not Q. B. 557 ) . binding on him: Tolhurst V. Asso- "234 PERSONS AFFECTED BY CONTRACT. obvious that there cannot be a contract without at least one ascer- tained party to make it in the first instance ; and it is also an elemen- tary principle of law that a contracting party cannot bind himself by a floating obligation to a person unascertained. The rule has been thus expressed : " A party cannot have an agreement with the whole world; he must have some person with whom the contract is made"(/). It is theoretically possible to find exceptions to this rule in such cases as those of promises or undertakings addressed to the public at large by advertisements or the like, and sales by auction. But we have shown in Chap. I. that this view is unnecessary and untenable, and that in every such case where a contract is formed it is formed be- tween two ascertained persons by one of them accepting a proposal made to him by the other, though possibly made to him in common with all other persons to whose knowledge it piay come. Effects of Contract as to Third Persons. The affirmative part of our second rule, namely: The creditor 202] can demand perfortnance from the debtor or liis ^'representa' fives, is now and long has been, though it was not always elemen- tary {g). Rule 2. No liability imposed on third persons. The negative part of it states that the creditor cannot demand, nor can the debtor require him to accept, performance from any third person. This is subject to the explanation that the debtor or (/) Squire V. Whitton (1848) 1 H. noii possunt facere legem pro de- L. C. 3.33, 358. functo, petens probabit talliam suam, {g} As to the liability of personal a el si habeat sectam secta debet ex- representatives on the contracts of aniinari ; et hoc est verum sive sit the testator or intestate see 1 Wms. mercator sive non"': Y. B. 22 Ed. I. Saund. 241-2. The old rule that an p. 4.56). For the conflict of opinion action of debt on simple contract as to the remed; by assumpsit, see would not lie against executors Reeves 3. 403, Y.'b. Mich. 2 H. VIII. where the testator could have waged 11, pi. 3, the strange dictum contra his law (though it is said the objec- of Fitzherbert, Trin. 27 H. VIII. 23 tion could be taken only by demur- pi. 21, who said there was no remedy rer) seems to have been in truth an at all (apparently on the ground innovation. See the form of writ that a cause of action in assumpsit for or against executors, Fleta 1. 2, was for a tort, and therefore died c. 62. § 9: and cp. F. X. B. 119 M, with the defendant's person), and 121 (the latter passage is curious: Norwood v. Read (1.5.57-8) in B. R., if a man has entered into religion Plow. 180. In Pivchon's case (1612) his executors shall be sued for his in Ex. Ch. 9 Co. Rep. 86 6, this die- debt, not the abbot who accepted him turn was overruled, authorities re- into religion : see p. 83, n. (s), supra, viewed and explained, and the oora- and Y. B. 30 Ed. T. p. 238. It is mon law settled in substance as it said, however, that " Quia esecutores now is. THIRD PERSON CAXXOT PERFORM. 225 his representatives may perform the duty by an agent, which again is modified by the exception of strictly personal contracts as men- tioned at the end of the rules. On this we need not dwell at present. Its foundation in principle. It is obvious on principle that it is not competent to contracting parties to impose liabilities on other per- sons without their consent. Every person not subject to any legal incapacity may dispose freely of his actions and property within the limits allowed by the general law. Liability on a contract consists in a further limitation of this disposing power by a voluntary act of the party which places some definite portion of that power at the command of the other party to the contract. So much of the debtor's individual freedom *is [203 taken from him and made over to the creditor (h). When there is an obligation independent of contract, a similar result is produced without regard to the will of the party; the liability is annexed by law to some wrongful act or default in the case of tort, and in the case of contracts " implied in law " to another class of events which may be roughly described as involving the accession of benefit through the involuntary loss of another person; but when an obligation is founded upon a real contract, the assent of a person to be bound is at the root of the matter and is indispensable (i). Agency: the exception only apparent. The ordinary doctrines of agency form no real exception to this. For a contract made by an agent can bind the principal only by force of a previous authority or subsequent ratification; and that authority or ratification is nothing else than the assent of the principal to be bound, and the contract which binds him is his own contract. Under certain conditions there may be a contract binding on the agent also, as we have seen in Chap. II., but with that we are not here concerned. When companies held in equity to promoters' agreements; not ex contractu. Another less simple apparent exception occurs in the cases in which (h) Cp. Savigny, Obi. § 2. this country and comment thereon 8 (i) Lumley v. G've (1853) 2 E. & Harv. L. Rev. 1; 11 ih. 449; 12 ih. B. 216, 22 L. J. Q. B. 403. and Bowen 335; 43 Cent. L. J. 302; 48 ih. 112; V. Hall (1881) 6 Q. B. Div. 333, 50 54 i6. 426; Reports of Am. Bar L. J. Q. B. 305, show (see now Quuui v. Assoc. 1898, 352.] But this is not Leathern [1901] A. C. 495, 510, 535, an obligation under the contract, any 70 L. J. P. C. 76, removing the more than when A. sells his land to doubts raised in Allen v. Flood B. the duty of all men to respect the [1898] A. C. 1, 67 L. J. Q. B. 119) rights of B. instead of A., as owner that a stranger may be liable in tort of that land, is a duty under the for procuring the breach of a con- contract of sale or the conveyance, tract. [See for many authorities in 15 226 PERSONS AFFECTED BY CONTRACT. companies have been held bound by agreements or representations {Jc} made by their promoters before the companies had any legal existence. These cases, however, proceed partly on the ground of a distinct obli- gation having either been imposed on the company in its original constitution, or assumed by it after its formation (/), partly on a 204] ground independent of con*tract and analogous to estoppel, namely, that wlien any person has on certain terms assisted or ab- stained from hindering the promoters of a company in obtaining the constitution and the powers sought by them, the company when constituted must not exercise its powers to the prejudice of that person and in violation of those terms. The doctrine as now estab- lished probably goes as far as this, but certainly no farther (m).^ Stranger held bound by award in equity. In one case of a suit in equity for specific performance of an award a third person interested in the subject-matter was made a party, and was held to be bound by the award, though he had not been a party to the reference and had in no way assented to it, but simply knew of it and remained passive (n). But it has been held by higher authority (o) that in a suit for the epeeific performance of a contract third persons claiming an interest in the subject-matter are not even proper parties : and even without this it seems obvious that A. and B. have no business to submit C.'s rights to the arbitration of D. It is apprehended accordingly that this exception may be treated as non-existent. (k) Re Metrop. Coal Consumers' R, 1 Ch. 501, 507, 35 L. J. Ch. 795. Association, Karberg's case [1892] 3 In Taylor v. Parry (1840) 1 Man. & Ch. 1, 61 L. J. Ch. 741, C. A. Gv. G04, the Court relied on positive (1) Lindley on Companies, 146, acts of the parties as showing that 149. they adopted the reference and were (m) Lindley on Companies, 152. substantially parties to it. As to ratification by companies, see (o) Ta-sker v. Small (1837) 3 My. p. *110, above. & Cr. 63, 45 R. R. 212, followed in. (n) Govett v. Richmond (1834) 7 De Hoqhion v. Money (1866) L. R. Sim, 1, 40 R. R. 56, doubted in Mar- 2 Ch. 164. tin V. L. C. & D. Ry. Co. (1866) L. 1 Marysville Co. v. Johnson, 93 Cal. 538; Freeman Imp. Co. v. Osborn, 14 Col. App. 488; Chicago Eg. Co. v. Creamery Co., 106 Ga. 84; Davis r. Dexter Co., 52 Kan. 693; Oldham v. Mt. Sterling Imp. Co.. 20 Kv. L. Rep. 207; Abbott V. Hapgood, 150 Mass. 248; Bradford v. Metcalf, 185 Mass. 205, 207: St. John's Mfg. C^o. IK Munger, 106 Mich. 90; Bottelle v. Northwestern Co., 37 Minn. 89; McArthur v. Times Printing Co., 48 :Minn. 319; Hill v. Gould, 129 Mo. 106; Low r. Railroad Co., 45 N. H. 370; Van Schaick v. Railroad Co., 38 N. Y. 346; Bonner r. American Mfg. Co., 81 N. Y. 468; Munson v. Railroad Co., 10-3 N. Y. 58; Oakes v. Cattaraugus Co., 143 N. Y. 430; Dayton v. Turnpike Co., 13 Ohio St. 84: Schreyer v. Turner Mills Co., 29 Oreg. l"; Tift v. Quaker City Bank. 141 Pa. 550: Huron Printing Co. r. Kittleson. 4 S. Dak. 520; Chase r. Redfiold Creamerv Co.. 12 S. Dak. 529; Lancaster. &o. Co. v. Mvrrav, &o. Co., 19 Tex. Civ. App. 110; Wall v. Mining Co.. 20 Utah, 474; Pratt v. Oshkosh Match Co., 89 Wis. 406. See also an article by Austin Abbott, 1 A. & E. Corp. Cas., new series, i. NOVATION. 22? Novation. Another branch of the same general doctrine is that the debtor cannot be allowed to substitute another person's liability for his own without the creditors assent. A contract cannot be made except with the person with whom one intends to contract (p). When a creditor assents at the debtor's request to accept another person as his debtor in the place of the first, this is called a novation. *Whether there has been a novation in any particular case is a [205 question of fact, but assent to a novation is not to be inferred from conduct unless there has been a distinct and unambiguous request (q). Such questions are especially important in ascertaining who is liable for the partnership debts of a firm when there has been a change in the members of the firm, or on contracts made in a business which has been handed over by one firm (whether carried on by a single person, a partnership, or a company) to another. A series of cases which were, or were supposed to be, of this kind arose about 1875 out of successive amalgamations of life insurance companies (r). The question may be resolved into two parts: Did the new firm assume the debts and liabilities of the old? and did the creditor, knowing this, consent to accept the liability of the new firm and dis- charge the original debtor (s) ? It would be beyond our scope to enter at large on this subject (f).- Real exceptions to come under Rule 4. There exist, however, exceptions to the general rule. In certain cases a new liability may without novation be created in substitution for or in addition to an existing liability, but where the possibility exists of such an exceptional trans- fer of liabilities it is bound up with the correlated possibility of an exceptional transfer of rights, and cannot be considered alone. For this reason the exceptions in question will come naturally to our notice under Eule 4, when we deal with the peculiar modes in which rights arising out of certain classes of contracts are transferred. *Apart from novation in the proper sense, the creditor may [206 (p) Robson V. Drummond (1S31) case (1875) 1 Ch. D. 307. 322, 45 2 B. & Ad. 303, 36 R. E. 509, see L. J. Ch. 321. note (d), p. *200, above. Other cases (s) See Rolfe v. Flon:er (1865) L. bearing on the same point are con- R. 1 P. C. 27, 44, 35 L. J. P. C. 13. sidered for another purpose in Ch. ( t ) See Lindley on Partnership, IX. beiow. 246 sgq., and as to the general prin- iq) Conquest's case (1875) 1 Ch. ciple of novation, see Wilson v. Lloyd Div. 334, 341, 45 L. J. Ch. 336. (1873) L. R. 16 Eq. 60, 74, 42 L. J. (r) It is doubtful whether some Ch. 559; for a later instance of true of tnese were really cases of nova- novation, Miller's case (1876) 3 Ch. tion: see Sort's case and Grain's Div. 391. 2 See an article by Prof. Ames, 6 Harv. L. Rev. 184, and Am. & Eng. Encyc. of Law. 228 PERSONS AFFECTED BY CONTRACT. bind himself once for all by the original contract to accept a substi- tuted liability at the debtor's option. Such an arrangement is in the nature of things unlikely to occur in the ordinary dealings of private persons among themselves. But it was decided in the winding-up of the European Assurance Society that where the deed of settlement of an insurance company contained a power to transfer the business and liabilities to another company, a transfer made under this power was binding on the policy-holders and they had no claim against the original company (u). In the case of a policy-holder there is indeed no subsisting debt (u), but he is a creditor in the wider sense above defined (p. *198). Rule 3. A third person cannot 'become entitled by the contract itself to demand the performance of any duty under the contract. No rights conferred on third persons. Before we consider the possibil- ity of creating arbitrary exceptions to this rule in any particular cases, there are some extensive classes of contracts and transactions analogous to contract which call for attention as offering real or apparent anomalies. A. Exceptions. Agency: apparent only. Contracts made by agents. Here the exception is only apparent. The principal acquires rights under a contract which lie did not make in person. But the agent is only his instrument to make the contract within the limits of the authority given to him, however extensive that authority may be : and from the beginning to the end of the transaction the real con- tracting party is the principle. 207] ^Degrees of agency. Consider the following series of steps from mere service to full discretionary powers : 1. A messenger is charged to convey a proposal, or the acceptance or refusal of one, to a specified person. 2. He is authorized to vary the terms of the proposal, or to en- deavour to obtain a variation on the other party's proposal (/. c, to make the best bargain he can with the particular person), within certain limits. 3. He is not confined to one person, but is authorized to conclude the contract with any one of several specified persons, or generally with any one from whom he can get the best terms. («) Hort's case and Grnin's cnsr Div. 320, 45 L. J. Ch. 332; Cocker's (1875) 1 Ch. D. 307. 45 L. J. Ch. case (1876) 3 Ch. Div. 1, 45 L. J. Ch. 321; Harman's case (1875) 1 Ch. 882. PRINCIPAL AND SURETY. 229 4. He is not confined to one particular contract, but is authorized generally to make such contracts in a specifiecl line of business or for specified purposes as he may judge best for the principal's interest (x). Agent contracting personally. The fact that in many cases an agent contracts for himself as well as for his principal, and the modifica- tions which are introduced into the relations between the principal and the other party according as the agent is or is not known to be an agent at the time when the contract is made, do not prevent the acts of the agent within his authority from being for the purposes of the contract the acts of the principal, or the principal from being the real contracting party. Again when the agent is also a contract- ing party there are two alternative contracts with the agent and with the principal respectively. Ratification. As for the subsequent ratification of unauthorized acts, there is no difference for our present purpose between a contract made with authority and one made without authority and subse- quently ratified. The consent of the principal is referred back to the date of the original act by a beneficent and necessary fiction. B. other relations: principal and surety. There are certain relations created by contract, of which that of creditor, principal debtor, and surety may *be taken as the type, in which the rights or duties [208 of one party may be varied by a new contract between others. But when a surety is discharged by dealings between the creditor and the principal debtor, this is the result of a condition annexed by law to the surety's original contract. There is accordingly no real anomaly, though there is an apparent exception to the vague maxim that the legal effects of a contract are confined to the contracting parties : and there is not even any verbal inconsistency with any of the more definite rules we have stated. These cases are mentioned only be- cause they have been considered as real exceptions by Avriters of recog- nized authority (?/). Anomalous effects of bankruptcy and insolvency. Insolvency and bank- ruptcy, again, have various consequences which affect the rights of parties to contracts, but which the general principles of contract are inadequate to explain. We allude to them in this place only to observe that it is best to regard them not as derived from or inci- dental to contract, but as results of an overriding necessity and be- {x) Cp. Savigny, Obi. 2. 57-60. (t/) See Pothier, Obi. § 89. 230 PERSOXS AFFECTED BY COXTRACT. yond the rogion of contract altogether (2). Even those transactions in bankruptcy and insolvency which have some resemblance to con- tracts, such as statutory compositions with creditors, are really of a judicial or quasi-Judicial character. It is obvious that if these trans- actions were merely contracts no dissenting creditor could be bound. C. Trusts: a real exception, if trust a contract between author of trust and trustee. The case of trusts presents a real and important excep- tion, if a trust is regarded as in its origin a contract between the author of the trust and the trustee. It is quite possible, and may for some purposes be useful so to regard it. The Scottish institu- tional writers (who follow the Eoman arrangement in the learning of Obligations as elsewhere) consider trust as a species of real 209] contract *coming under the head of depositation (a). Con- versely deposits, bailments, and the contract implied by law which is the foundation of the action for money received, are spoken of in English books as analogous to trusts (h). A chapter on the duties of trustees forms part of the best known American text-books on contracts, though no attempt is made, so far as we have ascertained, to explain the logical connection of this with the rest of the subject. General analogy to contract. By the creation of a trust duties are im- posed on and undertaken by the trustee which persons not parties to the transaction, or even not in existence at its date, may afterwards enforce. And the relation of a trustee to his cestui que timst is closely analogous to that of a debtor to his creditor, in so far as it has the nature of a personal obligation and is governed by the general rules derived from the personal character of obligations. Thus the transfer of equitable rights of any kind is subject, as regards the perfection of the transferee's title, to precisely the same conditions as the transfer of rights under a contract. And the true way to understand the nature and incidents of equitable ownership is to start with the notion not of a real ownership which is protected only in a court of equity, but of a contract with the legal owner which (in the case of trusts properly so called) cannot be enforced at all, or (in the case of constructive trusts, such as that which arises on a contract for {z) A striking instance is fur- (a) Hie, though no such abstract nished bv the rule in Waring's case term is known in Roman law. See (1815) 19 Ves. 34.5, 13 R. R. 217; Erskine, Inst. Bk. 3, tit. 1. s. 32. see per Lord Cairns, Banner v. (&) Blackstone, Comm. iii. 432. Johnston (1871) L. R. 5 H. L. at p. 174, 40 L. J. Ch. 730. PROVISIOXS FOR CHILDREN-. 23X ihe sale of land) cannot be enforced completely, except in a court of •equity (c). However, although ever}' trust may be said to include a contract, it includes so much more, and the purposes for which the machinery •of trusts is employed are of so different a kind, that trusts are distinct in a marked way not merely from every other species of contract, but from *all other contracts as a genus. The complex relations [210 involved in a trust cannot be reduced to the ordinary elements of -contract.^ D. Exception of certain provisions for children. Closely connected with the cases covered by the doctrine of trusts, but extending beyond them, we have the rules of equity by which special favour is extended to j)rovisions made by parents for their children. This exception has already been noted in stating the general rule (d). In the ordinary case of a marriage settlement the children of the contemplated mar- riage itself are said to be " within the consideration of marriage "(e) and may enforce any covenant for their benefit contained in the settle- ment.'* Where a settlement made on the marriage of a widow provides for her children by a former marriage, such children, though in the technical language of equity volunteers, or persons having no part in ihe consideration, have been held entitled to enforce the provisions for their benefit ;'"' but this extension has been doubted in the Court of Appeal (/). The question how far limitations in a marriage settlement to per- sons other than children can be supported by the consideration of marriage, so as not to be defeasible under 27 Eliz. c. 4, against sub- sequent purchasers, is a distinct and wider one, not falling within the scope of the present work (g). (c) See per Lord Westbury, Knox "la peine de naitre " as a legal detri- V. Gije (1871-2) L. R. 5 H. L. at ment. p. 675, 42 L. J. Ch. 234; Shaw v. {f) Gale v. Gale (1877) 6 Ch. D. Foster (1872) L. R. 5 H. L. at p. 144, 152, 46 L. J. Ch. 809, criticized 338 (Lord Cairns) and at p. 356 per Lindlev L.J. .l.-G^. v. Jacobs (Lord Hatherley) ; 42 L. J. Ch. 49. Smith [1895] 2 Q. B. 341, 349; and id) P. 199, above: cp. per Cotton see Re Cameron and Wells (1887) 37 L.J. 15 Ch. D. at p. 242. Ch. D. 32, 57 L. J. Ch. 69. (e) It is even said that considera- (g) The references in Gale v. Gale tion moves, or is assumed to move, (last note) will guide the reader, if from them. But it must not be in- desired, to the authorities, including ferred from this that equity regards the full discussion in May on Volun- tary and Fraudulent Conveyances. 3 Arnold r. Alden, 173 111. 229. 4Imlay v. Huntington, 20 Conn. 146, 166; Vason f. Bell, 53 Ga. 416; Nowack V. Berger, 133 :SIo. 24; Piper r. Hoard. 107 X. Y. 73. 5:\richael v. Morey, 26 Md. 339; Burkholder's Appeal, 105 Pa. 31. See further. Neves v. Scott, 9 How. 196; Burge r. Burge, 45 Ga. 301. 232 PERSONS AFFECTED BY CONTRACT, E. Statutory exceptions. There is also a class of statutory excep- tions (though of decreasing importance) in cases where companies 21 1 1 and *public bodies, though not incorporated, are empowered to sue and be sued by their public officers or trustees. The trustees of Friendly Societies and Trade Unions are likewise empowered to sue, and may be sued, in their own names, in cases con- cerning the property of the society or union (h). Covenants relating to real property. By 8 & 9 Viet, c, 106, s. 5, a person who is not a party to an indenture may nevertheless take the benefit of a covenant in it relating to real property. This enactment has not, so far as we know, been the subject of any reported decision {{}. General application of rule. Having disposed of these special excep- tions, we may now proceed to examine the rule in its ordinary appli- cation, which may be expressed thus : — The agreement of contracting parties cannot confer on a third person any right to enforce the contract. There are two different classes of cases in which it may seem de- sirable, and in which accordingly it has been attempted to effect this : (1) where the object of the contract is the benefit of a third person: (2) where the parties are numerous and the persons really interested are liable to be changed from time to time. Contract for benefit of third person. It was for a long time not clear 212] whether a contract ^between A. and B. that one of them should do something for the benefit of C. did or did not give C. a right of action on the contract (Jc). And there was positive authority that at all events a contract made for the benefit of a person nearly related (h) Friendly Societies Act, 1875 of London (1878) 7 Ch. D. at p. 741, (38 & 39 Viet. c. 60), s. 21'; Trade 47 L. J. Ch. 433. Union Act, 1871 (34 & 35 Vict. c. (i) For an example of the incon- 31), s. 9. It is the same ^vith build- venience provided against by it. see ing societies formed before the Act Lord Southampton v. Broion (1827) of 1874 and not incoriwrated under G B. & C. 718, 30 R. R. 511, where it. A statute enabling a local au- th ' person who was really interested thority to recover exjienses, and not in the payment of rent on a demise specifying any remedy, has been held made by trustees and with whom to make the local authority a quasi- jointly with the trustees the cove- corporation for the purpose of suing: nant for pa^Tiient of rent was ex- Mills V. Scott (1873) L. R. 8 Q. B. pressed to be made, was held incapa- 496, 42 L. J. Q. B. 234. And the ble of ining in an action on the grant of a right by the C^o^\^l to a covenant. class of persons may have the effect (/,•) See Viner, Abr. Assumpsit, Z. of incorporating them to enable (1. 333-7): per Eyre C.J. Co. of them to exercise the right: WiUln- Fcltmnl:rrs v. Davis (1707) 1 Bos. gale v. Maitland (1866) L. R. 3 Eq. & P. 98 ; note to Pifioft v. Thompson, 103, 36 L. J. Ch. 64, explained by (1802) 3 Bcs. & P. 149. Jessel M.R. in Chilton v. Corporation THIRD PERSON CAXNOT SUE. 233 to one or both of the contracting parties might be enforced by that person (l). Third person cannot sue at law. However, the rule is now settled that a third person cannot sue on a contract made by others for his benefit even if the contracting parties have agreed that he may, and also that near relationship makes no difference as regards any common law right of action. The final decision was in Tweddle v. Atkinson (m). The following written agreement had been entered into : " Memorandum of an agreement made this day between William Guy," &c., " of the one part, and John Tweddle of the other part. Whereas it is mutiially agreed that the said William Guy shall and will pay the sum of £200 to William Tweddle his son-in-law, railway inspector, residing in Thornton, in the county of Fife in Scotland, and the said John Tweddle father to the aforesaid William Tweddle shall and Avill pay the sum of £100 to the said William Tweddle each and severally the said suras on or before the 21st day of August. 1855; and it is hereby further agreed by the aforesaid William Guy and the said John Tweddle that the said William Tweddle has full power to sue the said parties in any Court of law or equity for the aforesaid sums hereby promised and specified." William Tweddle, the son of John Tweddle, broiTght an action against the executor of William Guy on this agreement, the declara- tion averring his relationship to the parties, and their intention to carry out a verbal agreement made before the plaintiff's marriage to provide a marriage portion. The action was held not to be main- tainable. The Court did not in terms overrule the older *cases [213 to the contrary, considering that their authority was already suffi- ciently disposed of by the effect of modern decisions and practice (n). Authorities in equity against right of third person. The doctrines of equity are at first sight not so free from doubt. There is clear and distinct authority for these propositions : When two persons, for valuable consideration as between themselves, contract to do some act for the benefit of another person not a party to the contract — (i) That person cannot enforoc3 the contract against either of the contracting parties, at all events if not nearly and legitimately re- {l) Dutton v. Poole (1677) (Ex. as on the contract: Flayford v. Ch.) 2 Lev. 213, Vent. 318, 322. Ap- United Kingdom Electric fclefjraph proved by Lord Mansfield, Cowp. 443. Co. (1800) L. R. 4 Q. B. 700. 38 L. There appears to have been much dif- J. Q. B. 240; Dickson v. Rcufrr's ference of opinion at the time. Telegram Co. (1877) 2 C. P. D. G2, im) (1861) 1 B. & S. 393, 30 L. J. in C. A. 3 C. P. Div. 1, 47 L. J. C. P. Q. B. 2G5. 1. It is a distinct question Avhether (n) See also Price v. Easton these decisions rightly denied that (1833) 4 B. & Ad. 433. Much less there was any cause of action at all. suffered damage by the non-performT See the present writer's book on the ance of it sue the defaulting party Law of Torts. 6th ed. 532-536. can a stranger to a contract who has ■^34 PERSONS AFFECTED BY CONTRACT. lated to one of them (o). Probably the only exception is that men- tioned above, pp. *199, *210, in favour of children provided for by marriage settlements. (ii) Bnt either contracting party may enforce it against the other although the person to be benefited had nothing to do with the con- sideration (p). Apparent exceptions. On the other hand the case of Gregory v. WiUiams (q) shows that a third person for whose benefit a contract is made may sometimes join as co-plaintiff with one of the actual con- tracting parties against the other, and insist on the arrangement being completely carried out. The facts of that case, so far as now material, may be stated as follows : Parker was indebted to Williams and also to Gregory; Williams, being informed by Parker that the debt to Gregory was about 900/., and that there were no other debts, under- 214] took to satisfy the debt to Gregory on having *an assignment of certain property of Parker's. Gregor}^ was not a party to this arrange- ment, nor was it communicated to him at the time. The property having been assigned to Williams accordingly, the Court held that Gregory, suing jointly wdth Parker, was entitled to call upon Williams to satisfy his debt to the extent of 9001. (but not farther, although the debt was in fact greater) out of the proceeds of the property. It was not at all suggested that he could have sued alone in equity any more than at law (r), and the true view of the case appears to be that the transactions between Williams and Parker amounted to a declara- tion of trust of the property assigned for the satisfaction of Gregory's claim to the specified extent (s). Provision for widow in partnership articles. Another apparent excep- tion is the case of Page v. Cox (t), where it was held that a provision in partnership articles that a partner's widow should be entitled to his share of the business might be enforced by the widow. But the decision was carefully put on the ground that the provision in the articles created a valid trust of the partnership property in the hands of the surviving partner. The result is that there is no real and (o) Cohjear y. Mulgrave (1836) 2 clearly that A. cannot sue on a Kee. 81, 44 R. R. 191. jiromise by B. to C. to pay C.'s debt (p) Davenport v. Bishopp (1843) to A. 2 Y. & C. 4.51, 460, 1 Ph. 698. 704. (s) Empress Enqineering Co. iq) (1817) 3 Mer. 582, 17 R. R. (1S80) 16 Ch. Div. 125, 129, 130, by 136. Je.ssel M.R. and James L.J. (r) For an attempt of a third (t) (1851) 10 Ha. W^, cp. Murray person to sue at law under very sim- v. Flarell (1883) 25 Ch. Div. 89, 53 ilar circumstances, see Price v. Ea-s- L. J. Ch. 185. ton (1833) 4 B. & Ad. 433, showing THIRD PEESOX CAXXOT SUE. 235 allowed authority for holding that rights can in general be acquired by third parties under a contract, unless by the creation of a trust. The general principle has been re-affirmed of late years. " A mere agreement between A. and B. that B. shall pay C. (an agreement to which C. is not a party either directly or indirectly) will not prevent A. and B. from coming to an agreement the next day releasing the old one " (u). *"An agreement between A. and B. that B. shall pay C. gives [215 C. no right of action against B." (x). It is proper to mention that a different rule is prevalent in America, but there does not seem to be any general agreement as to its reason •or its precise extent (y). Third person empowered to sue for convenience of parties. We now come to the class of cases in which contracting parties have attempted for their own convenience to vest the right of enforcing the contract in a third person. Except within the domain of the stricter rules applicable to 23arties to actions on deeds and negotiable instruments, there appears to be no objection to several contracting parties agree- ing that one of them shall have power to sue for the benefit of all except the party sued. Thus where partners create by agreement penalties to be paid by any partner who breaks a particular stipula- tion, they may empower one partner alone to sue for the penalty (z). The application of the doctrines of agency may also lead to similar results (a). It seems doubtful whether a promise to several persons to make a payment to one of them mil of itself enable that one to sue alone (6). ill) Jessel M. R. Empress Engi- (y) See Harriman on Contracts tveering Co., 16 Ch. Div. 125, 129. (Boston, U. S., 2nd ed. 1901) pp. [x) Lindley L.J. Re Rotherham 212—226. Alum and Chemical Co. (1883) 25 (z) Raaenhiirst v. Bates (1826) 3 Ch. Div. ac p. 111. These statements Blng. 463, 470, 28 R. R. 659. Of overrule what is said in Touche v. course tliey must take care to make Metrop. Railway Warehoiising Co. the penalty payable not to the whole (1871) L. R. 6 Ch. 671, 677, 40 L. J. firm, but to the members of the firm Ch. 496 (the decision may be sup- minus the offending partner, ported on the ground of trust, \Miether under the present Rules of Lindley on Companies, 148). Com- Court the other partners could use pare further Eley v. Positive, dc. the name of the firm to sue for the Life Assurance Co. (1876) 1 Ex. Div. penalty, qucere. 88, 45 L. J. Ex. 451 (a provision in {a)\Spurr v. Cass (1870) L. R. 5 articles of association that A. shall Q. B. 656, 39 L. J. Q. B. 249. l)e solicitor to the company and (6) Chanter v. Leese (1839) 4 M. transact all its legal business is as & W. 295, in Ex. Ch. 5 M. & W. 698, regards A. res inter alios acta and 51 R. R. 584, where both courts in- gives him no right against the com- clined to think not, but gave no deci- panv) ; Melhado v. Porto Alegre Ry. sion. In Jones v. Robinson (1847) 1 Co. "^(1874) L. R. 9 C. P. 503, 43 L. J, Ex. 454. 17 L. J. Ex. 36, an action •C. P. 253. was brought by one of two late part- 236 PERSONS Ali'FECTED BY CONTRACT. 21 6] ■'■' Attempts by unincorporated companies to appoint a nominal plaintiff. But it is quite clear that the most express agreement of contracting parties cannot confer any right of action on the contract on a person who is not a party. Various devices of this kind have heen tried in order to evade the difficulties that stand in the way of unincorporated associations enforcing their rights, but have always failed vrhen at- tention was called to them. This has happened in the case of actions brought by the chairman for the time being of the directors of a com- pany (c), by the directors for the time being of a company (d), by the purser for the time being of a cost-book company (e), and by the managers of a mutual marine insurance society (/). It will not be necessary to dwell on any instance other than the last. In Gray v. Pearson the reasons against allowing the right of action are well given in the judgment of "Willes J. : — Judgment of Willes, J., in Gray v. Pearson. " I am of opinion that tliis action cannot be maintained, and for the simple reason, — a reason not applicable merely to the procedure of this country, but one affecting all sound procedure, — that the proper person to bring an action is the person whose right has been violated. Though there are certain exceptions to the general rule, for instance in the case of agents, auctioneers, or factors, these exceptions are in truth more apparent than real. The persons who are suing here are mere agents, managers of an assurance association of which they are not members; and they are suing for premiums alleged to have become payable by the defendant in respect of policies ef- fected by the plaintiflFs for him, and for his share and contributions to losses and damages paid by them to other members of tlie association whose vessels have been lost or damaged. The bare statement of the facts is enough to show that the action cannot be maintained. " It is in effect an attempt to substitute a person as a nominal plaintiff in lieu of the persons whose rights have been violated." Notes and bills payable to holder of ofiSce. At common law the payee of a negotiable instrument must, on the same principle, be a person 217] who can be *ascertained at the time of accepting the bill or making the note. But by the Bills of Exchange Act, 1882, s. 7, a bill ners against the purchaser of the (e) Hyhart v. Parhcr (1858) 4 C. business on a promise to pa,y the B. X. S. 209, 27 L. J. C. P. 120; plaintiff what was due to him from where Willes J. suggested that it the firm for advances. This was de- was trenching on the prerogatives clared on as a separate promise in of the Crown to make a new species addition to a general promise to the of corporation sole for the purpose two partners to pay tlie partnership of bringing actions, debts, and the only question was {f) Gray v. Pearson (1870) L. R. whether there was any separate con- 5 C. P. 5(18 : in the earlier case of sideration for the promise sued on. Gray v. Gihson (18Gfi) L. R. 2 C. P. (c) Hall v. Bainhridgc (1840) 1 120, 36 L. J. C. P. 99, a similar ac- Man. & Gr. 42. tion succeeded, the question of the (d) Phelps V. Lyle (1839) 10 A. manager's right to sue not being & E. 113, 50 R. R. 353. raised. LAW IX THE UXITED STATES. 237 (and it seems by ss. 73 and 89 also a cheque or a promissory note) may be made payable to the holder of an office for the time being (r/).^ Contracts for the benefit of a third person in the United States. Discussion of principles necessary. The English law upon this ques- tion is so different from that of the United States, that it seems de- sirable to insert a fuller discussion of the law of the United States than was possible in a note, and some preliminary discussion of prin- ciples involved is also essential, for the first step towards a clear un- derstanding of contracts for the benefit of third persons is to differentiate several legally distinct states of fact in which third per- sons are interested. Property rights distinguished from contract rights. Eights of property may arise simultaneously with the making of a contract, and may be €nforced by the owner though he was not a party to the contract. His right of action is not based on the law of contracts, but on the law of property. Such a right may be legal or equitable. When a seller ships goods in fulfilment of an order, for instance, the legal title to the goods ordinarily passes to the consignee at the time of shipment, which is the time wlien the carrier contracts with the con- signor to deliver the goods to the consignee. If the carrier losses or misdelivers the goods the consignee can sue the carrier or indeed any one else who may have dealt with the goods wrongfully, not by virtue of the contract which the carrier has made, but because of the rights of property which arose when that contract was made. If, indeed, the liability of the carrier depends wholly on a promise in the bill of lading, then the question must arise, who can sue on the contract contained in the bill of lading.''' The case of the carrier is typical. Whenever property other than negotiable paper or money is delivered, in accordance with a contract of sale, to a third person for the pur- chaser, the title will ordinarily pass to the purchaser at that time, and he will acquire a right of action though not a party to the con- tract made between the seller and bailee. The right of property trans- ferred in many cases, however, is equitable. Whenever property is delivered to one person under such circumstances that the legal title ig) On the former law see Holmes v. Jacques (1866) L. R. 1 Q. B. 376, 35 L. J. Q. B. 130. 6 So the American Xegotiable Instrument Act, Crawford Neg. Inst. Law, I 27, par. 6. 7 See Elliott on Railroad^ § 1692. 238 PEESONS AFFECTED BY CONTRACT. passes to him, but he undertakes to deliver that specific property or its proceeds to a third person or use the property for his benefit, the relation of trustee and cestui que trust arises. When money or nego- tiable paper payable to bearer or indorsed in blank is delivered to another the legal title will generally if not necessarily pass, and the right of the person for whose benefit the delivery is made will be equitable, though in the case of money the appropriate remedy of the cestui que trust is ordinarily money had and received.® The fact that the remedy in such cases is in assumpsit has often blinded courts to the fact that the right of action is not based on principles of contract.^ Such rights of property are not generally hard to distingiiish from contract rights, though in many cases courts have confused the two. The inquiry whether a specific fund or res is to be transferred to the beneficiary furnishes a ready test. Property rights distinguished from revocable agencies. More difficult than the distinction between contract rights and property rights i& the distinction between cases involving the latter and cases of revo- cable agency. Unquestionably a man can create a trust for the benefit of another so absolute that the settlor cannot regain the prop- erty forming the subject of the trust. On the other hand, one may give money or property to an agent with instructions to give it to a third person, and before the mandate is executed it may be revoked. AVhere is the line which divides the first from the second case. No other test can be found than that furnished by the intention of the settlor or principal as indicated by his words and conduct, when he enters into the transaction. If his expressed intention read in con- nection with all the circumstances of the case indicates that the de- 8 " Whenever one person has in possession money which he cannot con- scientiously retain from another, the latter may recover it in this form of action, subject to the restriction that the mode of trial and the relief which can be given in a legal action are adapted to the exigencies of the particular case, and that the transaction is capable of adjustment by that procedure without prejudice to the interests of third persons. Xo privity of contract between the parties is required, except that which results from the circum- stances." Roberts v. Ely, 113 X. Y. 128, 131. See also McKee r. Lamon, 159 U. S. 317, 322; Nebraska Bank v. Nebraska Hydraulic Co., 14 Fed. Rep. 763 ; Nash r. Commonwealth, 174 Mass. 335, 337. 8 The mistakes are twofold. Cases of trust are treated as involving merely questions of contract. Allen V. Thomas. 3 Mete. (Kv. ) 198; Beattie Mfg. Co. r. G«rardi. 160 Mo. 142; Price r. Trusdell, 28 N. J.' Eq. 200, 202; Bennett r. Merchantville Building Assoc, 44 N. J. Eq. 116; Del. & Hudson Canal Co. r. Westchester Bank, 4 Denio. 97. Cases of mere contract rights are called trusts. Follansbee v. Johnson, 28 Minn. 311; Rogers v. Gosnell. 51 ]\Io. 469. The true distinction is well presented by the facts and is explained in the opinions in Fay r. Sanderson, 48 Mich. 259 : Hidden v. Chappel, 48 IMich. 527. See also McDonald v. American Bank, 25 Mont. 456; Belknap v. Bender, 75 N. Y. 440; Roberts v. Ely, 113 N. Y. 128. PROPERTY RIGHTS. 33& livery was to be a finality, that the money or property was to be from that moment dedicated to the third person, the law will give effect to the intention and give the latter a projDerty right from that time. It is true that this cannot be done against his will, but if there is no duty or obligation required from him in return for the property he is to receive, no expression of assent is required.^^ Assent may be implied or it may be said perhaps more accurately that the property right vests without assent subject to the possibility of rejection. On. the other hand, if the use of the money or property was intended to be subject to the directions of the person delivering it, if the holding was for his benefit and under his orders, the relation is that of prin- cipal and agent and the third person can acquire no rights until the agency has been executed either by actual transfer to the third per- son or by some express or implied attornment to him by the agent. Mere notice to the third person that an agency has been created can- not make it irrevocable, nor can even acceptance or change of position by the third person, unless either the principal or the agent with authority from the principal has made an offer that the holding shall be for the benefit of the third party if he so elects. Application of foregoing principles. The statement of these principles is easier than the application of them to concrete facts. One of the commonest cases involving the distinction is that of a general assign- ment by a debtor for the benefit of his creditors. The English courts hold that the delivery of such an. assignment vests no rights in the creditors. ^^ Yet it gives rise to something more than a mere agency, for when the creditors assent, the assignment cannot be revoked.^^ It is in effect, therefore, under the English view, an offer to the creditors of a trust for their benefit. Until the offer is accepted, but no longer, the assignee is agent or trustee for the assignor. In the United States such assignments are held, with better reason, to create irrevocable trusts from the moment the deed is executed.^^ Further illustration. Another illustration is furnished by the facts of a New York case.^'* Money was deposited in a bank by a corpora- tion which owed coupon bonds to meet a series of coupons about to fall due. The bank agreed to apply the money to the payment of the coupons. Before the coupons had actually been paid a creditor of the 10 Ames. Cas. Trusts. 2d ed.. 232, note; Perry on Trusts, 5th ed.. § 105. 11 Garrard v. Lauderdale, 3 Sim. 1 ; Smith v. Keating, 6 C. B. 136. 12 Ibid. 13 Burrill on Assi£rnnients, 6th ed.. § 257 seq. 14 Rocrers Locomotive Works V. Kelley, 88 N. Y. 234. Compare Mayer V, Chattahoochee Bank, 51 Ga. 325. SiO PERSOXS AFFECTED BY CONTRACT. corporation sued it, and garnisheed the bank. It was held that the bank had become a trustee for the coupon holders, and that the cor- poration had no right which could be attached. But where goods were put into A.'s hands, to sell as the owner should direct and dis- tribute the proceeds among certain creditors, it was held that only a revocable agency Avas created.^^ So where an agent who received money from his principal to pay over to a creditor subsequently used the money otherwise for his principal's benefit, and the principal assented, it was held that the creditor had acquired no rights. ^"^ Agency and contracts for the benefit of a third person. In another re- spect the law of agency touches the borderland of contracts for the benefit of a third person. It is familiar law that if a contracting party either is or assumes to be the agent of another, the latter may sue upon the contract. The right of a third person benefited by a contract to sue upon it has sometimes been defended on the ground that the promisee Avas the agent of the third person. But the exist- ence of an agency is a question of fact. It cannot be assumed as a convenient piece of machinery when in fact there was no agency. Novations. i^ovations and oifers of novation must also be distin- guished from the other legal relations with which this chapter deals. The aim of the novation is to substitute for an existing obligation another right. To work a novation, it is not enough that a promise has been made to the original debtor to pay the debt ; nor does the assent of the creditor help the matter unless an offer was made to him. The theory of novation is that the new debtor contracts with the old debtor that he will pay the debt, and also to the same effect wath the creditor, while the latter agrees to accept the new debtor for the old. A novation is not made out by showing that the substituted debtor agreed to pay the debt. It must appear that he agreed with the creditor to do so. Moreover, this agreement must be based on the consideration of the creditor's agreement to look to the new debtor instead of the old. The creditor's assent to hold the new debtor liable is therefore immaterial unless there is assent to give up the original debtor. ^^ 1J> Comlev V. Dazian, 114 X. Y. 161. See also Keithley v. Pitman, 40 Mo. App. oOOfKellv r. Babcock. 49 N. Y. 318. I'J Dixon V. Pace, 63 X. C. 603. See also Halliburton v. Xance, 40 Ark. 161; Center v. McQuesten, 18 Kan. 476; McDonald v. American Bank, 25 Mont. 456; Beers r. Spooner. 9 Lei^h. 153. 17 See an article on Xovation by Professor Ames, Harv. L. Rev. 184, and the article on Xovation in the Am. & Eng. Encvc. of Law f2d ed.). Also CuKon r. Chadley, 3 B. & C. 591; Knisely v. Brovrn, 95 111. App. 516; Hamlin r. Dnimmond, 91 Me. 175; ButterfieM r. Hartshorn, 7 X. H. 345; Warren V. Batchelder, 15 X. H. 129; Smart v. Tetherly, 58 X. H. 310. TRUSTEE AND CESTUI QUE TRUST. 241 Promises to one who did not furnish the consideration. Promises for the benefit of a tliird party must also be distinguished from promises to one who has not given the consideration for the promise. It is laid down in the books that consideration must move from the promisee, and it is sometimes supposed that infringement of this rule is the basis of the objection to allowing an action by a third person upon a promise made for his benefit. This is not the case. In such promises the consideration does move from the promisee, but the beneficiary who seeks to maintain an action on the promise is not the promisee. The rule that consideration must move from the promisee is somewhat technical, and in a developed system of con- tract law there seems no good reason why A. should not be able for a consideration received from B. to make an effective promise to C. Unquestionably he may in the form of a promissory note,^^ and the same result is generally reached in this country in the case of an ordinary simple contract. ^^ When cestui que trust can sue on contract for his benefit. One more preliminary distinction must be made. A trustee can make a con- tract for the benefii; of his cestui que trust, and if the contract is not performed may sue and recover full damages. A contract by which A. engages to pay B. money as trustee for C. is unquestionably valid.^*' And if B. refuses to enforce the contract, C. may bring a bill in equity against A. and B., the primary equity of which is to compel the trustee to do his duty, but to avoid multiplicity of actions a court of equity will decree that A. pay the money .^^ It is only in case the 13 Fanning r. Russell, 94 111. 386; Mclntyre r. Yates, 104 111. 491; Hall v. Jones, 78 Ind. 406 ; Mize r. Barnes, 78 Ky. 506 ; Eaton v. Libbey, 165 Mass. 218; Horn v. Fuller, 6 N. H. 511; Farley r. Cleveland, 4 Cow. 432, 9 Cow. 739. 19 Pigott V. Tliompson, 3 B. & P. 149, by Lord Alvanley; Bell v. Sappington, 111 Ga. 391; sec. 2747, Ga. Code; Schmucker r. Sibert, 18 Kan. 104, 111; Wil- liamson V. Yager, 91 Kv. 282; Cabot r. Haskins, 3 Pick. 83; Palmer Bank v. Insurance Co., 166 Mass. 189, 195, 196; Van Eman v. Stanchfield, 10 Minn. 255; Gold V. Phillips, 10 Johns. 412; Lawrence r. Fox, 20 X. Y. 268, 270, 271, 276, 277; Pvector v. Teed, 120 N. Y. 583. "0 Such contracts are illustrated in Cope v. Parrv, 2 J. & W. 538; Treat v. Stanton, 14 Conn. 445 ; Mass. Mut. L. I. Co. r. Robinson, 98 111. 324. 21 Gandy r. Gandy, 30 Ch. D. 57. In this case a promise by a husband to pay trustees money for the support of the promisor's wife and for the edu- cation of their children was held enforceable by the wife when the trustees refused to sue. It was said that the trustees merely intervened because hus- band and wife could not contract. The reasoning and distinctions in this case are not clear. The promise was to pay the trustees, who were contracting parties, but the court did not clearly distinguish the case from that of a promise to pay a beneficiary directly. Cotton, L. J., suggested as an excep- tion to the general rule forbidding one not a party to a contract to sue that " if the contract though in form it is with A. is intended to secure a benefit to B. so that B. is entitled to say he has a beneficial right as cestuis que tr%Lst 16 242 PERSONS AFFECTED BY COXTBACT. trustee, who is the promisee, refuses to act, that the beneficiary has a right to sue in this way.^^ Two types of cases involving benefit of third persons. There are two quite distinct types of cases which pass current under the name of promises for the benefit of a third person. To the first class belong promises where the promisee has no pecuniary interest in the per- formance of the contract, his object in entering into it being the benefit of a third person. To the second class belong promises where the promisee seeks indirectly to discharge an obligation of his own to a third person by securing from the promisor a promise to pay this creditor. These two classes are frequently treated as if their correct solution depended upon the same principles, but there are important distinctions. Contracts for the sole benefit of a third person should be enforceable. The first class is properly called a contract for the benefit of a third person, and the phrase " sole beneficiary "' should be reserved for this class. As the promisee has no pecuniary interest in the performance of the promise, he can have, generally speaking, no other intention than to benefit the third person, to give him a right. A typical illus- tration is a contract of life insurance payable to some one other than the insured. A\Tiatever may be the apparent technical difficulties, it is obvious that justice requires some remedy to be given the bene- ficiary. The original bargain was convenient and proper, and the law should find a means to enforce it according to its terms. The tech- nical difficulty is twofold. The beneficiary is not a party to the con- tract, and apart from some special principle governing this class of cases cannot maintain an action. The promisee, though entitled to sue on the promise on ordinary principles of contract, having suffered no pecuniary damage by the failure of the promisor to perform his agreement, cannot recover substantial damages -^ and if it be granted that the wrong of the defendant, not the injury to the plaintiff, fur- nishes the measure of damages, the beneficiary gains nothing thereby ; for it is no easier to find a principle requiring the promisee to hold what he recovers as a trustee for the beneficiary than to find a prin- tindcr that contract, then B. would, in a court of equity, be allowed to insist upon and enforce the contract." In the same case it was held that the children could not sue. 22Flynn v. Mass. Ben. Assoc, 152 Mass. 288. 23 West V. Houghton, 4 C. P. D. 197 (but see Lloyds v. Harper, 16 Ch. D. 290; Re Flavell, 25 Ch. D. 89. 97) : Peel r. Peel, 17 W. R. 586, per James, V. C; Burbank r. aould. 15 Me. 118; Watson r. Kendall, 20 Wend. 201; Adams v. Union R. R. Co., 21 R. I. 134, 137. See also Axtel v. Chase, 77 Ind. 74. EQUITABLE JURISDICTIOX. 243 ciple allowing a direct recovery by the beneficiary against the promisor.^* A court of equity is the appropriate forum. There is no satisfactory solution of these difficulties in the procedure of a court administering legal remedies only. But one of the functions of equity is to provide a remedy where the common law procedure is not sufficiently elastic, and no opportunity can be found for the exercise of this function more appropriate than the sort of case under consideration. Much of the difficulty of the situation arises from the fact that three parties are interested in the contract. Common law procedure contemplates but two sides to a case, and cannot well deal with more. Equity can deal successfully with any number of conflicting interests in one case, since defendants in equity need have no community of interest. Grounds for equitable jurisdiction. In the case under consideration the only satisfactory relief is something in the nature of specific per- formance. The basis for equity jurisdiction is the same as in other cases of specific performance. There is a valid contract, and the remedy at law for its enforcement is inadequate. As the promisee and the beneficiary have both an interest in the performance of the promise, either should be allowed to bring suit joining the other as co-defendant with the promisor. In this way all parties have a chance to be heard. There may always be a possible question as to the respective rights of the promisee and the beneficiary, and this question should not be determined in any litigation to which either is not a parly.^' English law. The right of the beneficiary in such a contract to maintain an action was suggested in a number of early English cases, but judicial opinion was almost invariably against it.^^ 24 Cleaver v. Mut. Reserve Fund Life Assoc, [1892] 1 Q. B. 147, 152. 25 In Peel r. Peel, 17 W. R. 586, James, V. C, decreed specific performance at the suit of a beneficiary on the ground that the party who had the legal right had suffered no damage. 26 See Viner's Abr. I. 333-337. For the modern English law, see supra, and especially Tweddle v. Atkinson, 1 B. & S. 393 ; Re Rotherham Alum & Chemi- cal Co., 25 Ch. D. 103, 111; Cleaver v. IMutual Reserve Fund Life Assoc, [1892] 1 Q. B. 147. In the case last cited. Lord Esher said that apart from statute a policy of insurance on A.'s life payable to his -wife gave her no rights. It would be payable to A.'s executors, and they would not hold as trustees. See also Eley r. Positive, etc.. Life Assurance Co., 1 Ex. D. 88; Melhado v. Porto Alegre Ry. Co., L. R. 9 C. P. 503; Re Empress Engineering Co., 15 Ch. D. 125: GandyV. Gandy, 30 Ch. D. 57. The remarks in Touche v. Metropolitan Ry. Warehousing Co., L. R. 6 Ch. 671, must be regarded as overruled. So in Ireland, McCoubray i. Thomson. 11 Ir. Rep. C. L. 226; Clitheroe V. Simpson, L. R. 4 Ir. 59; aiid Canada, Faulkner v. Faulkner, 23 Ont. 252. 244 PERSONS AFFECTED BY COXTEACT. The denial of relief to a beneficiary is so obviously unsatisfactory in the case of life insurance policies that by the Married Women's Property Act in England a wife or husband or children, named as beneficiary in a policy, are entitled to the proceeds of the policy tliough not to sue for them directly.^' But the same reasons which demand that relief shall be given in the case of an insurance policv apply to other contracts where the intention of the promisee was to stipulate for a benefit to a third person. Such bargains are unques- tionably valid contracts and the law should have sufficient adaptability to enforce them according to their terms. The case of Tweddle v. Athinson^^ for instance, is open to as serious criticism as the life insurance case. Were it not for strained decisions on the law of trusts, the English courts would be obliged to make more unfortunate decisions than they do. In Moore v. Dartonj^ money was lent to Moore for which he gave this receipt : " Eeceived the 22d of October, 1843, of Miss Barton, for the use of Ann Dye £100, to be paid to her at Miss Bar- ton's decease, but the interest at 4 per cent to be paid to Miss Bar- ton." The court held that a trust for Ann Bye had been created ; but the provision as to interest is clear evidence that the transaction was a loan, which Moore promised to repay to a beneficiary instead of to the lender. Contract to discharge a debt of the promisee. The second type of case to which reference has been made — a contract to discharge an obliga- tion of 'the promisee — has been held in England enforceable only by the promisee.^*^ This rule does not operate as unjustly as the rule in the other type of cases, for here both the promisee and the The Irish case of Drimmie r. Davies. [1899] 1 Ir. R. 176, however, was a clear case of a promise for the benefit of a third person, and the promise was enforced. . j • • A possible exception to the general rule in England arises where a devise is made subject to the condition that the devisee shall pay a sum of money to another. The acceptance of the devise was held by Lord Holt to create a personal liability to the beneficiary. Ewer v. Jones, 2 Ld. Rajnn. 937, 2 Salk. 415, 6 Mod. 2G.* This was followed in Webb r. Jiggs, 4 M. & S. 119, and not denied in Braithwaite r. Skinner, 5 M. & W. 313, but it was suggested that the value of the devise limited the liability of the devisee. For American cases holding the devisee liable see post, p. 252, n. 74. 27 45 & 46 Vict., c. 75, § 11. 28 See supra, p. *211. ,_ , , 29 4 De G. & S. 517; Ames, Cas. Trusts (2d ed.), 39. See also M'Fadden r. Jenkvns. 1 Phillips 153; Ames, Cas. Trusts, 47. •''■0 Crow r. Rogers, 1 Stranse, 592 : Price v. Easton, 4 B. & Ad. 433 ; Re Empress Engineering Co., 16 Ch. D. 125. 129; Bonner r. Tottenham Society. [1S99] 1 Q. B. 161. But see Gregory r. Williams, 3 Mer. 582. So in Canada, Henderson v. Killev. 17 Ont. App. 456; s. c. svh nam. Osborne v. Henderson, 18 Can. S. C, 698; Robertson v. Lonsdale, 21 Ont. 600. PROMISE TO PAY A DEBT. 245 third party have an adequate remedy. The object of such a contract must always be primarily and generally solely to secure an advantage to the promisee. He wishes to be relieved from liability, and he exacts a promise to pay the third person only because that is a way of relieving himself. If the promisor breaks his promise the promisee suffers material damage, namely the amount of the liability which should have been discharged and which in fact still exists, and ac- cording to ordinary rules of contract the promisee is liable for this damage.^^ The third person, moreover, can sue his original debtor. He has the right for which he bargained, and if he is given also a direct right against the promisor, the latter is subjected to a double right of action on a single promise, and the creditor is allowed to take advantage of a promise for which he did not furnish the con- sideration and in which the contracting parties had their own advan- tage, not his, in mind. Creditor's interest in such a promise. Yet the creditor is not wholly without interest in the promise to pay his claim. That promise is a valuable right belonging to his debtor. If a solvent promisor has agreed to purchase a debt of the promisee to the amount of a thousand dollars, it is as real an increase of the assets of the promisee as a promise to pay the latter directly that sum, or indeed as the actual payment thereof. It should make no difference what form a debtor's assets take. The law should be able to reach them in whatever shape they may be, and compel their application to the payment of debts. Obviously a promise to pay a debt due a third person cannot be taken on an execution against the debtor, nor is it the subject of garnish- ment; for the promisor, if ho is willing to perform his premise, cannot be compelled to do anything else, and as the promise is not to pay the promisee, the promisor cannot be charged as garnishee or trustee for him.^- The aid of equity is, therefore, necessary in order to compel the application of such property to the creditor's claim, and acting as it does by personal decree, equity can readily give the re- quired relief. In a bill against the indebted promisee and the promisor, the court can order the pi'omisor to perform his promise by paying the plaintiff. As the promisee is a party to the litigation, 31 See post, p. 270, n. 44. 32 Creditors other than those specified in the promise were not allowed to garnishee the promisor in Coleman r. Hatcher, 77 Ala. 217; Clinton Bank r. Studemann, 74 la. 104; Rickman v. Miller, 39 Kan. 362; Edgett v. Tucker, 40 Mo. 523; Baker v. Eglin. 11 Oreg. 333; Vincent v. Watson, IS Pa. 06; Putney r. Farnham, 27 Wis. 1S7. See also Pounds v. Chatham, 96 Ind. 342. Com- pare Mayer v. Chattahoochee Bank, 51 Ga. 325; Center v. McQuesten, 18 Kan. 476. 246 PERSONS AFFECTED BY CONTRACT. his rights will be concluded by such a decree, and the promisor will not be subjected to the hardship of the possibility of two actions against him by virtue of a single promise.^^ As in the case of garnish- ment, the payment to the plaintiff will discharge the obligation to the promisee. Indeed the statutes permitting garnishment might readily be extended so as to cover this kind of transaction.^'* Right not available for every creditor. One peculiarity is to be no- ticed in regard to the application of such a promise to the debt of the promisee. It is a right that not every creditor can take ad- vantage of. As to most property the creditor who first attaches or files a bill acquires whatever rights his debtor has; but a promise to pay A.'s debt to B. cannot be made available by any creditor except B., since the promisor cannot be required to do anything other than what he promised. The only right other creditors than B. could have would arise if B. collected his claim out of A.'s general assets. The liability which would then arise on the part of the promisor to A, could be made available by any creditor. Creditor's right derivative. If this reasoning is sound the claim of the creditor is a derivative one. His only interest in the promise is the interest which he has in any property belonging to his debtor. This view has considerable support in the decisions in many jurisdic- tions in regard to promises to assume mortgages.^^ A promise to as- sume and pay a mortgage for which the promisee is liable can hardly differ in principle from a promise to pay any other debt of the promisee, but the mortgage cases are frequently treated as a class by themselves. A few cases also of promises to pay unsecured debts are based on substantially this theory."*^ Statutes. The law in this country has not been much affected by statute. Such statutes as exist are generally of limited application. Many states make a policy of a life insurance for the benefit of a wife or a wife and children good against creditors,^" but these statutes are silent as to the respective rights of the beneficiary and promisee. In Massachusetts, however, the beneficiary of a life insurance policy 33 The writer is indebted to Professor Ames for this analysis. 34 In Vermont garnishment by the creditor specified in the promise is al- lowed. Corey v. Powers, 18 Vt. 587; Chapman v. Mears, 56 Vt. 386. See also Henry v. Murphy, 54 Ala. 246. 35 See infra, pp. 202. 203. SOJesup V. Illinois Central Pv. P.. Co.. 43 Fed. Rep. 483, 403: :Mercantile Trust Co. r. Baltimore, etc., R. R. Co.. 04 Fed. Rep. 722; Congregational Soc. V. Flagg. 72 Vt. 248; Vanmeters' Ex. r. Vanmeters, 3 Gratt. 148. 3T3 Am. & Eng. Cyc. (2d ed.), 981. LAW OF MASSACHUSETTS. 347 is given a right of action.^'^ California/^ North^*^ and South Dakota," Montana,*^ and Idaho,'*^ have the same provision that " a contract made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it." The Louisiana Code^'* allows suit by the beneficiary of a contract, and Virginia*^ and West Virginia'*^ have the same provision that " if a covenant or promise be made for the sole benefit of a person with whom it is made, or with whom it is made jointly with others, such person may maintain in his own name any action thereon which he might maintain in case it had been made with him only, and the consideration had moved from him to the party making such covenant or promise." The Georgia Code provides"*^ that " if there be a valid consideration for the promise, it matters not from Mdiom it is moved, the promisee may sustain Ijis action though a stranger to the consideration." Code provisions as to real party in interest. The common provision in the so-called code states,*^ that actions shall be brought in the name of the real party in interest, is sometimes referred to as controlling the question,^^ but it seems to have little bearing upon it. The diffi- cult question is whether the third person is the real party in interest. It is a question of substantive law as to the existence of rights rather than of the procedure appropriate for their enforcement. If, as mat- ter of common law, the third person is held entitled to sue in the name of the promisee or to treat the promisee as a trustee for him, the provision would enable the third person to sue directly in his own name. The English common law, certainly, does not admit the in- direct right any more than the direct. The provision has served in some states to add another element of confusion. Massachusetts law. In no jurisdiction in this country is the law as strict as it is in England. But there is no uniformity in the law of the several states. That of Massachusetts probably most nearly ap- proaches the English rigor. Early decisions which followed what was 38 Stat. 1894, c. 22.5. 39 Civ. Code, § 1559. 40 Civ. Code, § 3840. 41 Civ. Code § 4688. 42 Civ. Code, § 2103. But this seems to be very narrowly construed. Mc- Donald V. American Nat. Bank, 25 Mont. 456. 43 Rev. Stat., § 3221. 44 Art. 1890; Code of Practice, Art. 35. 45 Code, § 2415. 4fiCode, c. 71, § 2. 47 Code, § 2747. 48 These statutes are collected in Hepburn, Cases on Code Pleading, 188. 49Pnducah Lumber Co. r. Paducah Water Supplv Co., 89 Ky. 340; Smith V. Smith, 5 Bush, 625, 632; Ellis v. Harrison, 104 Mo. 270, 277. 248 PERSONS AFFECTED BY CONTRACT. then supposed to be the English law, and gave a direct right to the sole beneficiary of a contract and to a creditor against one who had promised to pay his debt, have been overriiled.^*^ But by statute, if not otherwise, the beneficiary of a life insurance policy is entitled to the proceeds of the policy as against the personal representatives of the insured,^^ and by a later statute^^ may sue the insurance com- pany in his own name. Further, the Massachusetts court has recently held that a policy of fire insurance insuring the premises of a mort- gagor and taken out and paid for by him, if made payable to the mortgagee, may be sued upon by the latter in his own name.^^ The mortgagee's interest in such a policy is essentially the same as any creditors interest in a promise made to his debtor to pay the debt. It is true the promise of the insurance company is conditional and is not to pay the debt as such, but any payment made by the insurer operates as payment of the debt pro tanto, and, if all the parties are solvent it is the mortgagor not the mortgagee who derives benefit from the payment. The only distinction that seems possible to except this case from the general rule in regard to promises to pay a debt to a third person is to regard a policy of insurance as a mercantile instrument, the effect of which is largely determined by business cus- tom,^^ and which may be sued on like negotiable paper by the party to whom it is made payable without regard to who furnished the con- sideration or negotiated the contract. This distinction seems sound. There are also decisions in Massachusetts, not overruled, which hold a devisee who has accepted a devise made conditional on payment to another personally liable to the beneficiary.^^ 50 Terry v. Brightman, 132 Mass. 318; Marston r. Bigelow, 150 Mass. 45; Nims r. Ford, 159 Mas*. 575 ; Wright v. Vermont Life Ins. Co., 160 Mass. 175 ; Clare v. Hatch, 180 Mass. 194 (overruling Felton v. Dickinson. 10 Mass. 287) ; Felch V. Taylor, 13 Pick. 133; Bacon v. Woodward, 12 Gray, 376, 382. Cp. Nash V. Commonwealth, 174 Mass. 335. 51 Stat. 1887, c. 214, sec. 73. 52 By statute of 1894, c. 225, a beneficiary may sue in his own name upon all policies of life insurance issued since that date. A decision in regard to- this statute is Wright v. Vermont Life Ins. Co., 160 Mass. 170. 53 Palmer Savings Bank i'. Insurance Co., 166 Mass. 189, following previous, practice, which had not before been disputed. The Massachusetts court relies on the fact that most courts in the country allow the mortgagee to sue. This is true. See 11 Am. Encyo. of PI. and Pr. 304. But such courts alsa allow any creditor to sue on a promise to pay him made to another. 54 In ^lichigan. wliere as in ^Massachusetts a creditor cannot sue upon a promise to pay his debt, a mortgagee cannot =ue urion insurance of the mort- gagor made pavable to the mortcasef. Hn'tfnrd Fire Ins. Co. v. Davenport, 37 :\Iich. 609:' :\Iinnock r. Eureka F. & :\r. Tn~. Co.. 90 Mich. 236. Conf. Hopkins :\Ifg. Co. r. Aurora F. & M. Ins. Co.. 48 Mich. 148. See Langdell, Summary Contracts. §§ 49, 51. 55 Felch V. Taylor. 13 Pick. 133: Adams r. Adams, 14 Allen. 65. In Prentice v. Brimhall, 123 Mass. 291, 293; Gray, C. J., explained these decisions by LAW OF OTHER STATES. 24& Law of Other states. A large majority of the states allow the sole beneficiary to sue at law;^'' but — besides Massachusetts — the Federal the lack of equity powers in the court when the first decision was made. As no equitable ciiarge on the property could have been enforced, the defendant would have escaped altogether if not held personally liable. (Insurance cases are not included in this note.) &>j Arkansas. Kogers i". Galloway Female College, 64 Ark. 627. Georgia. Wilson c. First Presbyterian Church, 56 Ga. 554. See also Code,. § 3664. Illinois. Lawrence v. Oglesby, 178 111. 122. Indiana. Allen c. Davison, 16 Ind. 416; Beals r. Beals, 20 Ind. 163; Marlett V. Wilson, 30 Ind. 240; Miller i:. Billingsly, 41 Ind. 489; Henderson v\ McDonald, 84 Ind. 14'J ; Waterman c. Morgan, 114 Ind. 237; Stevens v. Flanna- gan, 131 Ind. 122; Ferris v. American Brewing Co., 155 Ind. 539. Except for the Code the plaintiff would have to sue in equity. Kansas. Strong c. Marcy, 33 Kan. 109. Kentucky. Clarke v. McFarland's Exec, 5 Dana, 45 ; Smith r. Smith, 5 Bush, 625 ; Benge r. Hiatt's Adm.. 82 Kj-. 666 ; Paducali Lumber Co. r. Paducah Water Supply Co., 89 Ky. 340. See also McGuire v. ilcGuire, 11 Bush. 142; Mercer c. Mercer's Adm., 87 Ky. 30. Except for the Code plaintiff would have to sue in equity. Louisiana. ' Civil Code, Arts. 1884. 1896. Maryland. Owings v. Owings, 1 H. & G. 484, 491. Massachusetts. Felton v. Dickinson, 10 Mass. 287 (overruled by Terry r. Brightman, 132 Mass. 318; Marston v. Bigelow, 150 Mass. 45). See also Felch V. Taylor. 13 Pick. 133: Bacon r. Woodward, 12 Gray, 376, 382; Prentice r. Brirahall, 123 Mass. 291. Missouri. St. Louis r. Von Phul, 133 Mo. 561; Devers v. Howard, 144 Mo. 671; Crone r. Stinde, 156 Mo. 262; Weinreich r. Weinreich, 18 Mo. App. 364; Markel v. W. U. Tel. Co., 19 Mo. App. SO; Glencoe Lime Co. v. Wind, 86 Mo. App. 163. But see Phcenix Ins. Co. r. Trenton Water Co.. 42 Mo. App. 118; Howsmon v. Trenton Water Co.. 119 Mo. 304; State r. Loomis, 88 Mo. App. 500. ^Montana. Civ. Code, § 2103. But see McDonald r. American Bank, 25 Mont. 456. Xegraska. Hale v. Ripp. 32 Xeb. 259; Sample v. Hale, 34 Neb. 220; Lyman r. Lincoln. 38 Neb. 794; Doll v. Crume, 41 Neb. 655; Korsmever Co. v' McClay, 43 Neb. 649 : Chicago, etc., R. R. Co. r. Bell. 44 Neb. 44 ■ Kauf- mann v. Cooper, 46 Neb. 644; Hickman r. Layne, 47 Neb. 177, 180; Fitz- gerald V. MeClay, 47 Neb. 816; King r. Murphv. 49 Neb. 670; Rohman v. Gaiser, 53 Neb. 474: Pickle Marble Co. v. McClay, 54 Neb. 661. But see Eaton V. Fairbury Water Works Co., 37 Neb. 546. Nevada. See Ferris v. Carson Water Co.. 16 Nev. 44. New Jersey. Rue r. Meirs, 43 N. J. Eq. 377, »84; Whitehead v. Burgess, 61 N. J. L. 75. New York. Schermerhorn r. Vanderhevden, 1 Johns. 139, 140 ; Glen v. Hope Mutual L. I. Co.. 56 N. Y. 379; Little v. Banks. 85 N. Y. 281; Todd V. Weber, 95 N. Y. 181 ; Rector r. Teed. 44 Hun. 349. 120 N. Y. 583; Buchanan V. Tilden. 158 N. Y. 109; Roberts r. Cobb. 31 Hun. 150: Knowles r. Erwin. 43 Hun, 150; affd.. 124 N. Y. 633; 'Whitcomb r. Whitcomb, 92 Hun, 443; Bab- cock r. Chase. 92 Hun. 264: Luce r. Grav, 92 Hun, 599. But see contra, Lorillard r. Clyde, 122 N. Y. 498; Townsend v. Rackham. 143 N. Y. 576; Sullivan r. Sullivan, 161 N. Y. 554; Wainwright r. Queen's County Water Co.. 78 Hun. 146: Coleman r. Hiler. 85 Hun, 547: Buffalo Cement Co. v. McNaughton. 90 Hun. 74: affd.. 156 N. Y. 702. reavirument denied, 157 N. Y. 703; Glens Falls Gns Light Co. v. Van Vranken, 11 N. Y. App. Div. 420. North Carolina. Gorrell r. Greensboro Water Co.. 124 N. C. 328. Ohio. Flickinger v. Saum. 40 Ohio St. 591, 601 ; Irwin r. Lombard Univ., 56 Ohio St. 9, 20. Pennsylvania. Strohecker r. Grant, 16 S. & R. 237, 241, semUe; Ayer's 250 PERSONS AFFECTED BY CONTRACT. Courts," Connecticut,^^ Michigan/*'^ Minnesota,*'*' New Hampshire,*'^ Vermont,'^- Virginia,^^ and to some degree Penns3'lvania,^ do not al- low an action. In the Federal Courts, Connecticut, ^Michigan, Ver- mont, and Virginia, however, it seems that a suit in equity might be maintained.*'^ The law of New York is in rather dubious condition. It has been laid down in some cases that in order to entitle one who is not a party to a contract to sue upon it, the promisee must owe him some duty;''*' but from recent cases it seems that a moral duty is Appeal, 28 Pa. 179; Hostetter v. Hollinger, 117 Pa. GOG. But see contra, Edmundson v. Penny, 1 Barr, 334 ; Guthrie v. Kerr, 85 Pa. 303. Rhode Island. Adams i\ Union R. R. Co., 21 R. I. 134. But see contra, Wilbur v. Wilbur, 17 R. 1. 295. South Carolina. Thompson v. Gordon, 3 Strobh. 19G. Utah. See Montgomery v. Rief, 15 Utah, 495. Vermont. Hodges v. Phelps, 65 Vt. 303. But see contra, Crampton v. Ballard, 10 Vt. 251; Hall r. Huntoon, 17 Vt. 244; Fugure r. :Mut. Soc. of St. Joseph, 46 Vt. 362. Virginia. Taliaferro r. Day, 82 Va. 79; Code of 1887, § 2415. But see contra, Ross v. Milne, 12 Leigh, 204 ; also Newberry Land Co. v. Xewberrv, 95 Va. 111. West Virginia. Johnson r. McClung, 26 W. Va. 659, 670. Wisconsin. Grant v. Diebold Safe Co., 77 Wis. 72; Tweeddale v. Tweeddale, 110 Wis. 517. United States. Nat. Bank r. Grand Lodge, 98 U. S. 123. Conf. Constable r. National Steamship Co., 154 U. S. 51; Sayward r. Dexter, 72 Fed. Rep. 758; U. S. V. National Surety Co., 92 Fed. Rep. 549; Bro^^n & Haywood Co. r. Ligon, 92 Fed. Rep. 851; Goodyear Shoe Machinery Co. v. Dancel, 119 Fed. Rep. 692 (C. C. A.). £7 Goodyear Shoe Machinery Co. r. Dancel, 119 Fed. Rep. 692 (C. C. A.). And see infra, p. 259, n. 91. 58 Baxter r. Camp, 71 Conn. 245. The court leaves the question open whether a suit in equity in which the representatives of the promises were joined could be maintained. 59 Wheeler V. Stewart, 94 Mich. 445; Linneraan r. Moross, 98 Mich. 178. The court left open the question whether there wns an equitable right. 00 Jefferson r. Asch, 53 Minn. 446 ; Union Ry. Storage Co. v. McDermott, 53 Minn. 407. In the first of these cases the court says: " Where there is nothing but the promise, no consideration from such stranger and no duty or obligation to him on the part of the promisee, he cannot sue upon it." 61 Curry r. Rogers, 21 N. H. 247. 62 Crampton v. Ballard. 10 Vt. 251; Hall v. Huntoon, 17 Vt. 244; Fugure r. Mut. Soc. of St. Joseph, 46 Vt. 362. But in Hodges v. Phelps, 65 Vt. 303, it was held that a devise subject to the payment of a legacy imposed a personal liability on the devisee, if he accepted the devise. 63 Ross V. Milne, 12 Leigh. 204. But see Code of 1887, § 2415. construed in Newberry Land Co. i\ Newberry, 95 Va. 111. In Taliaferro v. Day, 82 Va. 79, an accepted devise subject to a legacy was held to impose a personal liability. 64 Edmundson v. Penny. 1 Barr. 334 ; Guthrie v. Kerr, 85 Pa. 303. See, how- ever, Ayer's Appeal, 28 Pa. 179; Merriman r. Moore, 90 Pa. 78, 81; Hostetter V. Hollinger, 117 Pa. 606. If the promisor receives property as the considera- tion for a promise to make a payment, though the promisor is under no obliga- tion to use the property rpceived or its proceeds for the purpose, the Penn- sylvania court apparently by an unwarranted extension of the law of trusts holds the promisor liable. 6-') See cases in precedinar notes. 66 Vrooman v. Turner. 69 N. Y. 280. 283 : Beveridsro r. N. Y. Elevated R R 112 N. Y. 1, 26; Lorillard v. Clyde, 122 N. Y. 498; Townsend v. Rackham, 143 LIFE IXSUEANCE CASES. 251 enough, and this gives the court considerable latitude.^'^ Minnesota has adopted the same distinction.^ Missouri also has held some duty necessary and a moral duty sufficient,^^ but a late decision incon- sistently dispenses with the requirement.'^^ A suggestion of the sort is occasionally found in other states.'^^ The supposed necessity results from a confusion of the two distinct types of cases. The early iJvTew York cases bearing on the right of a creditor to sue one who promises the debtor to pay the debt recognized that the creditor's right was derivative and that it was by virtue of his claim against the debtor that he acquired a right to sue upon the promise to the debtor. But the requirement of a debt or duty is wholly inapplicable to contracts for the sole benefit of a third person. It might equally well be settled that a gift should be invalid unless the donor was under a duty to make it. Moreover, whenever such a requirement is proper a moral obligation cannot suffice. When an obligation is of such a character that the obligee cannot enforce it directly against the obligor, it can no more furnish the basis for a right against one who has promised the obligor to pay the debt, than it could for the garnish- ment of a debt due to the obligor. In the first case cited as illustrating the New York rule it was true not only that the promisee was under no duty to the plaintiff, but also that the plaintiff was not intended by the promisee as the beneficiary of the contract. The benefit expected to result to the plaintiff was merely incidental to the general object of the contract. This was sufficient ground for the decision ; but in the later cases where the doctrine was applied the result was needlessly to defeat an intended gift. Life insurance cases. There are several recurring situations which illustrate the contract for the sole benefit of a third person. The com- monest is the case already referred to of a life insurance policy for the benefit of another. This case may well be regarded as depending upon the nature of a policy of insurance as a mercantile instrument. At N. Y. 51G; Sullivan r. Sullivan, IGl N. Y. .554: Coleman r. Hiler, 85 Hun, 547. See also Glens Falls Gas Light Co. r. Van Vranken, UN. Y. App. Div. 420; Opper r. Hirsch, G8 N. Y. Siipp. 879. Compare the cases of Little v. Banks, 85 N. Y. 281, and Todd r. Weber, 95 N. Y. 181. 6T Buchanan r. Tilden, 158 N. Y. 109; Knowles v. Erwin. 43 Hun, 150; affd., 124 N. Y. 633; Whitcomb r. Whitcomb, 92 Hun, 443; Babcock r. Chase, 92 Hun, 264; Luce i\ Gray, 92 Hun, 599. In all these cases the promise was to pay money to a dependent relative. 68 See f Union Pacific Ry. Co. v. Metcalf, 50 Neb. 452. See contra, Snider v. Adams Express Co., 77 ]Mo. 523. where consignor was allowed to recover as trustee for consignee. See 4 Elliott on Railroads, § 1092. 37 Ferris v. Carson Water Co., 16 Nev. 44. 38 Adams r. Union R. R. Co., 21 R. I. 134. RIGHTS OF THE PROMISEE, 269 fubrogated to the right of the mortgagee to sue upon this promise.^^ Ohio has recently reached the same conclusion,'"' though it is in con- flict with an earlier Ohio decision which was not cited,''^ Ground for denying recovery by the promisee. The idea behind the cases which deny the promisee a right of action is that by the assent of the third person a novation is created;^- but as has been already shown, a contract with a debtor to pay his debt, even though the creditor assents, does not amount to a novation. Recovery by the promisee generally allowed. Whatever the hardship upon the promisor may be in being liable to two persons when he promised but one, most courts have found it the simpler alternative, n recovery by either party being a bar to an action by the other,^^ In mortgage cases especially the promisor may thus find himself in a difficult position between the mortgagee and the promisee, the 39 Miller r. Winchell, 70 N, Y. 437, 439; Ayers r, Dixon. 78 X. Y. 318. See also Keller v. Lee, 66 N. Y, App. Div. 184. For the earlier New York deci- sions, see ante, p. 262, n. 7. In Claflin r. Ostrom, 54 N. Y. 581, 584, it was held that the promisee or his assignee might sue upon a promise to assume the debts of a firm, and in Ward v. Cowdrey, 51 Hun, 641; affd., 119 N. Y. 614. it was held that a promisee might sue in the absence of proof that the third person knew of or acquiesced in the arrangement. The beneficiary m these cases could no< have sued. 40Poe v. Dixon, 60 Ohio St. 124. Compare Blood v. Crew Levick Co., 171 Pa, 334, 337, The court there said: "As to the amount still due and unpaid on the mortgages , , , the plaintiff cannot recover to lier own use until she has been compelled to make payment and flien only to the extent of pay- ments actually made. An action might be maintained by the holder of the mortgage in the name of the covenantee for his use upon the express covenant to pay contained in the deed; and I see no reason why an action might not be brought by a covenantee to recover damages sustained by reason of the breach."' 41 Wilson r. Stiiwell, 9 Ohio St. 467, A retiring partner, who had received a promise from the remaining partner that the latter would pay the firm debts, was held entitled to sue upon the promise without having first paid the debts himself, 43 See also Brewer v. Dyer, 7 Cush, 337. 341. The promisee "might likewise have a remedy on the contract in case the plaintiflF should not elect to adopt it." 43 Union Mut. L. I. Co. v. Hanford, 143 U. S. 187: Steene r. Avlesworth, 18 Conn. 244, 252; Tinkler v. Swaynie, 71 Ind. 562; Rodenbars-er r. Bramblett, 78 Ind. 213: Foster r. Marsh, 25 Ta. 300; Smith v. Smith. 5 Bush. 625. 632; Baldwin r. Emery, 89 Me. 496: Rogers r. Gosnell, 51 Mcrr 466. 469; Snider v. Adams Express Co., 77 Mo. 523: Beardsloe r. INIorgner, 4 Mo. App. 139, 143; Megher v. Stewart, 6 Mo. App. 139, 143: Weinreicli r. Weinreich. 18 Mo. App 364. 372: Anthony r. Oerman Am. Ins. Co., 48 Mo. App. 65: Am. Nat. Bank v. Klock, 58 Mo. Apn. 335; Gunnell v. Emerson, 73 Mo. App. 291 (rnnf. Bethany r. Howard, 149 Mo, 504); Strong v. Kamm, 13 Oreg, 172: Edmundson v. Penny, 1 Barr, 334; Hoff's Appeal, 24 Pn. 200: Blood r. Crew Levick Co., 171 Vj. 334; Callender v. Edmison. 8 S. Dak. 81 ; Hull r. Haw^vard. 13 S. Dak. 291; Snyder v. Summers, 1 Lea, 534; Jones r. Thomas, 21 Graft, 96, See also authorities in next note. 270 PERSONS AFFECTED BY CONTRACT. grantor of the premises. If the promisor fails to keep his promise to pay the debt, he is liable to the promisee to the full amount of the debt;^^ and unless the promise can bear the construction of a promise to indemnify against loss, this seems sound. But the recovery of the promisee cannot alfect the mortgagee's rights against the property, and if he forecloses the mortgage, the promisor loses the property and is obliged to pay the debt also. The proper relief for the prom- isor is an application to equity when he is sued by the promisee, for an injunction against the action on terms of payment of the debt to the mortgagee. Equity should grant such an injunction, for it does not injure the promisee, since the terms imposed amount to a decree of specific performance of the promise.'^^ It seems also that if the mortgage has been foreclosed and the mortgagee thereby paid and the promisee freed from liability as mortgagor, the promisor should be entitled to an injunction against the collection of any judg- ment of the promisee against bim, or if a judgment has already been collected, to an action on principles of quasi contract to recover back the amount collected less costs and any payment or remaining lia- bility of the promisee to the mortgagee. Creditor's right to sue both debtor and new promisor. Diversity of opinion likewise prevails in regard to the right of a creditor vrhose debtor has received a promise to pay the debt, to sue both the new promisor and the original debtor. Courts which hold that the origi- nal contract is in effect an offer of novation naturally hold that if the creditor accepts the promisor as his debtor he releases the original debtor, and on the other hand if he elects to sue the original debtor he thereby rejects the proffered novation and cannot afterwards sue 44 Meyer v. Hartman, 72 111. 442; Stout r. Folger, 34 la. 71; Furnas v. Durgin, 119 :Mass. 500; Locke r. Homer, 131 Mass. 1)3: Walton v. Euggles, 180 Mass. 24; Strohauer V. Voltez, 42 Mich. 444; Dorrington f. Minnick. 15 Ntb. 397; Rawson V. Copeland, 2 Sandf. Ch. 251; Rector v. Hiirgins, 48 X. Y 532; Sage r. Truslow, 88 N. Y. 240; Wilson v. Stihvell, 9 Ohio St. 408; Cal- lender v. Edmison, 8 S. Dak. 81; Sedgwick on Damages. § 789: Sutherland on Damages, § 765. And it makes no difTerence that the promisor has sold the land again. Reed v. Paul, 131 Mass. 129. But if the mortgagee has been paid from sale of the land the promisee can recover only nominal damages. Mulilig V. Fiskc. 131 :Mass. 110: Williams v. Fowler. 132 ":Mass. 385. See also Wilson V. Bryant. 134 Mass. 291: Keller v. Lee, 66 N. Y. App. Div. 184. 45 Compare Ford r. Bell, 35 Ga. 258. In that case the mortgagee sued the mortgagor. The latter having sold the premises to a third party, who had agreed to pay the mortgage, brought a bill in equity joining both the mort- gagee and the purchaser, praying that the latter be compelled to pay the debt. The bill was sustained. See also Wilson v. Stihvell. 9 Ohio St. 467. DEFEiVSES. 371 the new promisor.^^ The more common doctrine, however, allows the creditor a right both against the original debtor and the new promisor. "^^ Defenses good against the promisee good against the creditor. Another question concerns the admissibility of certain defences by the prom- isor. When sued by the third person, the promisor may rely on facts showing that the promisee could not enforce the contract. Is the third person barred because the promisee would be ? It is neces- sary to observe some distinctions here. The foundation of any right the third person may have, whether he is a sole beneficiary or a creditor of the promisee, is the promisor's contract. Unless there is a valid contract no rights can arise in favor of any one. Moreover, the rights of the third person, like the rights of the promisee, must be limited by the terms of the promise. If that is in terms con- ditional, no one can acquire any rights under it unless the condition happens.^ Further, if there is a contract valid at law, but subject 46 Henry v. Murphy, 54 Ala. 24G; Hall r. Alford, 49 S. W. Rep. 444 (Ky.) ; Fioyd V. Ort, 20 Kan. 102; Searin<;- c. Benton, 41 Kan. 758 (compare Kansas Pac. Ry. Co. v. Hopkins, 18 Kan. 409. and Piano Mfg. Co. r. Burrows, 40 Kan. Sfil. In the latter case the court held that " no one has the riirht to take the objection that the old debt is not extinguished, but the old debtor, and prob- ably even he would not have such right"'); Bohanan v. Pone. 42 Me. 'Jo; Brewer c. Dyer, 7 Gush. 339; Warren v. Batchelder, ]G X. H. 580; Wood c. Moriarty, 1.5 11. I. 518, 522; Phenix Iron Foundry v. Lockwood, 21 R. I. 556. In no case, however, has a court held that a mortgagee by seeking to recover against one who had assumed a mortgage released the mortgagor; and in Rouse r. Bartholomew. 51 Kan. 425, the Kansas court lield the mortgagor was not released though the decision is inconsistent in principle with the previous decisions of the court as to other debts. In Young v. Hawkins, 74 Ala. 370, it was held that recovering judgment against the original debtor in ignorance that a new promisor had agreed to pay the debt did not bar a subsequent recovery against the latter. To make a binding election it was said knowledge of the ficts is essenlial. 4T Hopkinson i\ Warner, 109 Cal. 133; South Side Assoc, r. Cutler Co., 64 Ind. 560; Davis v. Hardv, 76 Ind. 272; Rodenbarger r. Bramblett, 78 Ind. 213; Stanton r. Kenrick,' 135 Ind. 382, 389; Rotherni'd r. Bell & Zoller Co., 79 111. App. 667; Wickham r. Hyde Park Assoc, 80 111. App. 523; Rouse v. Bartholomew, 51 Kan. 425; Davis r. Xat. Bank of Commerce. 45 Xcb. 589; Fischer r. Hope Mut. Life Ins. Co., 69 N. Y. 161; Poe r. Dixon, 60 Ohio St. 124. 129; Feldman r. McGuire, 34 Oreg. 309, 313. 48 Russell r. Western Union Tel. Co., 57 Kan. 230: Fenn r. Union Co., 48 La. Ann. 541 : Gill r. Weller. 52 Md. 8. But see Orman r. Xorth Alabama Co., 53 Fed. Rep. 469, 55 Fed. Rep. 18; East V. New Orleans Ins. Assoc, 76 Miss. 697; Oakland Ins. Co. r. Bank of Commerce, 47 Neb. 717. In the first case the person to whom a telegram was sent, who was treated as the benefi- ciary of the contract with the telegraph company, was held subject to the requirement in that contract that the claim must be presented Avithin sixty days. In the last two cases a mortgagee was alloAved to sue on policies of insu- rance taken out by the mortgagor " loss payab'e to mortfi"ifree " though the mortgagor had acted in such a way as would avoid the policy as to him. 2i2 PERSONS AFFECTED BY CONTRICT. to some equitable defence — as fraud,^^ mistake,^'^ or failure of con- sideration^^ — the defence may be set up against the third person. If the case is a promise to pay a debt or discharge a duty of the promisee, the rights of the third person can only be derived through the prom- isee, and whatever defence affects the latter affects the creditor. In the case of a promise for the sole benefit of a third person, the bene- ficiary may indeed be regarded as having a direct right, but he is in the position of a donee. It is no more equitable for a sole bene- ficiary, though himself innocent to try to enforce a promise procured by the fraud of another, than for the donee of trust property to insist on his legal title as against the cestui que trust. Non-performance by promisee a good defence. A more difficult case arises where the defence does not relate to the origin of the contract, but is based on supervening circumstances, such as non-performance by the promisee of a counter-promise made by him, or discharge by the promisee by release or rescission. The defence of non-perform- ance should be available against the third person whether he is a sole beneficiary or a creditor of the promisee. The defence is fre- quently called failure of consideration. This is technically inaccu- rate, since the consideration for the promise was the counter-promise, and that has not failed ; but as the substantial matter the parties had 49 Green v. Turner, 80 Fed. Rep. 41, 86 Fed. Rep. 837; Benedict r. Hunt, S2 la. 27; Maxfield r. Schwartz. 45 Minn. 150; Ellis v. Harrison, 104 Me. -170, 278; Saunders r. McClintoek, 46 Mo. App. 216: American Xat. Bank v. Klock, 58 Mo. App. MSS; Wise v. Fuller, 29 N. J. Eq. 2.57; Arnold v. Xichols, 64 N. Y. 117; Moore r. Ryder, 65 X. Y. 4.38; Trimble v. Strotlier. 25 Ohio St. 378; Osborne v. Cabell, 77 Va. 462. Fitzgerald v. Barker, 96 Mo. 661, and Klein v. Isaacs, 8 Mo. App. 568, to the contrary must be regarded either as overruled or distinguished on the ground that the plaintiff bought the nore, payment of which was assumed, on the faith of tlie defendant's promise to pay it. 50 Episcopal ]\Iission r. Brown, 158 U. S. 222; Jones r. Higjrins, 80 Kv. 409; Borrart v. Phillips, 112 Mich. 607; Rogers v. Castle, 51 Minn. 428: Gold v. Og'den, 61 Minn. 88; Bull r. Titsworth. 29 X. J. Eq. 73; Stevens Inst, l: Sheridan, 30 X. J. Eq. 23; O'Xeill v. CLark, 33 X. J. Eq. 444; Green r. Stone, 54 X. J. Eq. .'^87; Crow r. L^wis, 95 X. Y. 423; Wheat v. Rice. 97 X. Y. 296. 51 Clay V. Woodrum, 45 Kan. 116; Amonett r. Montague, 75 Mo. 43; Judson V. Dadal 79 X. Y. 373, 379; Osborne r. Cabell, 77 Va. 462. Several decisions present the case of a purchaser with warranty of land subject to a mortgage, who has been eA'icted from the premises and is there- after sued by the holder of the mortgage. Tlie defense was held good in Dunning r. Leavitt. 85 X. Y. 30: Crow r. Lewis, 95 X. Y. 423; Gifford f. Father Matthew Society. 104 X. Y. 1.39. But see contra. Blood r. Crew Lev- ick Co., 177 Pa. 606; Hayden v. Snow, 9 Biss. 511, 14 Fed. Rep. 70: s. c. sub- tiom. Hayden v. Devery. 3 Fed. Rep. 782. In the last case the decision was based on the fact that the plaintiff was a purchaser for value of the mortgage note after the defendant had assumed the mortgage. See also Knapp /• Con- necticut Mut. L. I. Co., 85 Fed. Rep. 329 ; Connecticut Mut. L. I. Co. v. Knapp 62 Minn. 405. ^^ EESCISSIOX OR RELEASE. 273 in mind was the performance of the promises the defendant prom- isor has in substance not received what he bargained for. Under these circumstances it is unjust to allow a mere donee to enforce the promise; and if the third person is a creditor he is not entitled to any greater right than his debtor had.'^^ Rescission or release. The commonest defence, that of discharge by rescission or release, is different. In the case of a sole beneficiary it is like the attempted revocation of a gift. The promisor for good consideration has given the beneficiary a right. Later he seeks to take it away by procuring the extinction of the promise. If it be admitted that the beneficiary has a direct right of his own, it ought not to be extinguished without his consent. The only question can be, when does the beneficiary's right arise — when the promise for his benefit was made or when he was notified of it or assented to it ? for unless a right has vested in the beneficiary before the rescission or release he cannot object. The question is analogous to that arising upon a gift of property or the creation of a trust for the benefit of anotlier. As a gift is a pure benefit to the donee there seems no reason why his assent should not be presumed, unless and until he expresses dissent.^^ According to this view the sole beneficiary ac- quires a right immediately upon the making of the contract and any subsequent rescission is ineffectual. There is weighty authority in support of this view;^'* but in most jurisdictions the distinction has 52 Episcopal Mission V. Brown, 158 U. S. 222; Piigh r. Barnes, 108 Ala. 167; Stuvvesant V. Western Mortgage Co., 22 Col. 28, 33; Miller r. Hughes, 95 la. 223. See also Willard r. Wood, 164 U. S. 502, 521; Loeb V. Willis, 100 I^". Y. 231. But see apparently contra. Cress r. Blodgett, 64 Mo. 449; Com- mercial Bank v. Wood, 7 W.'& S. 89; Fulmer r. Wightman, 87 Wis. 573. In Missouri and Nebraska it has been held that a surety for the promise of a contractor to a district or municipality to pay for his labor and materials is liable to workmen and materialmen in spite of the fact that the promisee, the district, or municipality has paid the contractor during the progress of the work to an amount not allowed by the contract. The ^Missouri decision relies on the fact that the plaintiffs had become creditors on the faith of the defendant's suretj'ship before the promisee had committed any breach of duty. The Nebraska decisions make no such distinction. School District v. Livers, 147 Mo. 580; Doll v. Crume, 41 Neb. 655; Kaufmann v. Cooper, 46 Neb. 644 ; King v. Murphy, 49 Neb. 670. 53 Ames, Cas. Trusts, 2d ed., 232-234. 54 Henderson v. McDonald. 84 Ind. 149, and Waterman r. Morgan. 114 Ind. 237; Thompson v. Gordon, 3 Strobh. 196; Tweeddale v. Tweeddale. 116 Wis. 617. See also Knowles r. Erwin, 43 Hun, 150; affd., 124 N. Y. 623. A few cases of the debtor and creditor type seem to hold a similar doctrine. Star- bird r. Cranston, 24 Col. 20; Bav'r. Williams. 112 HI. 91; Cobb v. Heron, 78 HI. App. 654, 180 111. 49; Rogers r. Gosnell. 58 Mo. 5S9. The almost imiversal doctrine that the beneficiary of a life insurance policy acquiri^s a vested right of which he cannot be deprived subsequently is in accord. The numerous cases are collected in 3 Am. & Eng. Cyc, 2d ed., 980. 18 274 PERSONS AFFECTED BY CONTRACT. not been clearly stated in the decisions between cases of sole bene- ficiary and cases of debtor and creditor. Most of the cases have been of the latter sort, and it has generally been laid down broadly as true of aH cases that prior to the assent or acting upon the promise by the third party but not afterwards, a rescission or release is opera- tive.^° In theory, however, in a case of debtor and creditor the situa- tion is very different from that arising where the third person is a sole beneficiary. The creditor's right is purely derivative, and if the debtor no longer has a right against the promisor the creditor can. have none. In one respect only has the creditor any right to object to a rescission or release. The promise to the debtor to pay the debt is a valuable right belonging to the debtor. Like his other property the debtor has no right to give it away if he thereby deprives himself of sufficient means to pay his debts. Even though insolvent, however, he has a right to change the form of his assets. Consequently to a rescission or release for adequate consideration paid to the debtor, the creditor should never have a right to object. A release or rescission by an insolvent debtor, without any consideration, or without adequate consideration, however, is a fraudulent conveyance. It is a gift of property by one whose circumstances do not justify him in giving, and the creditor may disregard the gift. Here, too, the knowledge of the promise by the third person or his assent thereto should make no difference. A promise to a debtor to pay his debt is a valuable asset whether the creditor knows of it or not, and the debtor, if in- BSBiddel v. Brizzolara, 64 Cal. 354; Merrick v. Giddings, 1 Mackey (D. C.) , 394; Durham v. Bischof, 47 Ind. 211; Carnahan V. Touscv, 93 Ind. 561; Smith V. Flack, 95 Ind. 116, 120; Gilbert v. Sanderson, 56 la.' 349 : Cohrt v. Kock,. 56 la. 658; Seiffert Lumber Co. v. Hartwell. 94 la. 576, 582: Dodge's Admr f. Moss, 82 Kv. 441; Mitchell v. Cooley. 5 Rob. 243; Cucullu v. Walker. 16 La. Ann. 198;'Garnsey r. Rogers, 47 N. Y. 233, 242; Gifford v. Corrigan. 117 N. Y. 257; Seaman r.' Hasbrouck, 35 Barb. 151 ; Holder v. Xat. Bank, 9 Han, 108; affd., 73 N. Y. 599; Wilson v. Stihvell, 14 Ohio St. 464; Trimble V. Strother, 25 Ohio St. 378; Brewer r. Maurer, 38 Ohio St. 543; Emmitt v. Brophv, 42 Ohio St. 82; McCown r. Schrimpf. 21 Tex. 22; Huffman r. Western Mortgage Co., 13 Tex. Civ. App. 169; Clark v. Fisk, 9 Utah, 94; Bassett r. Hughes, 43 Wis. 319 (overruled by Tweeddale r. Tweeddale, 116 Wis. 517). What is required in the way of assent or acting upon the promise is not defined. Doubtless in many jurisdictions if the third person had knowledge of the promise and made no objection he would be regarded as assenlin;_'. But in Crowell r. Currier, 27 X. J. Eq. 152 (s. c. on appeal sub nom. Crowell r. Hospital, 27 N. J. Eq. 650), it was held that rescission was permissible because the third party had not altered his position, the court apparfutly requiring something like an estoppel to prevent a rescission; and in Wood r. Moriarty. 16 R. I. 201, a release by the promisee was held eflfectual. though the creditors had made a demand upon the promisor for the money, because the creditors " did not do or say anything inconsistent with their continuing to look to T. (the original debtor) "for the debt." DEFENSES. 2T5 solvent, lias no right to dispose of it without receiving an adequate price for it.^*" Another l^ind of defence to a promise to pay a debt has given rise to considerable litigation. May the promisor set up that the debtor did not owe tlie debt or that it was an illegal debt? The true an- swer to this question depends upon the true meaning in fact of the promise rather than upon any rule of law. If the promisor's agree- ment is to be construed as a promise to discharge whatever liability the promisee is under, the promisor must certainly be allowed to show that the promisee was under no liability. Thus one who in return for an assignment of property assumed all the grantor's debts would be allowed to dispute the validity of any debt. On the other ■hand, if the promise means that the promisor agrees to pay a sum of money to A., to whom the promisee says he is indebted, it is im- material whether the promisee is actually indebted to that amount or at all. The promisee has decided that question himself. Where the promise is to pay a specific debt, for example to assume a specific mortgage, this construction will generally be the true one. Most of the cases accordingly refuse to allow one who has assumed a specific debt to set up usury^'^ or other defences'^^ of which the debtor might have availed himself. 156 This analysis finds some support in the cases of Trvistees v. Anderson, 30 N. J. Eq. 30tj; Youngs v. Trustees, 31 N. J. Eq. 290, and Willard c. Woj- sham, 76 Va. 392, where the validity of a release by the mortgajjor of one who had purchased the equity of redemption from him and assumed the mortgage was made to depend on the solvency of the mortgagor. 67Millington r. Hill, 47 Ark. 301;" People's Bank l: Collins, 27 Conn. 142; Henderson v. Bellew, 45 111. 322: Valentine v. Fish, 45 111. 462; Esslev V. Sloan, IG 111. App. 63; Flanders v. Doyle, 16 111. App. 508; Cleaver r. Burcky, 17 111. App. 92; Stephens r. ]\Iuir, 8 Ind. 352; Spinney t: Miller, lit la. 210; Hough r. Hersey, 36 Mo. 181; Log Cabin Assoc, r. Gross. 71 Md. 456; Scanlan r. Grimmer, 71 Minn. 351; Cramer v. Lepper, 26 Ohio St. 59; Jones v. Insurance Co., 40 Ohio St. 583; Spaulding v. Davis. 51 Vt. 77; Conover V. Hobart, 24 N. J. Eq. 120; Post v. Dart, 8 Paige, 639; Cole ('. Savace. 10 Paige, 583; Root r. Wright, 21 Hun, 344; Sands r. Church, 6 N. Y. 347;lfart- ley I'. Harrison, 24 N. Y. 170; Ritter r. Phillips, 53 N. Y. 586 (payment). But see Knickerbocker Life Ins. Co. v. Nelson, 78 N. Y. 137. 58 Pope V. Porter, 33 Fed. Rep. 7 (informal execution) ; Kennedy r. Brown, Gl Ala. 296 (coverture) : Gownns r. Pierce, 57 Kan. ISO (unauthorized signa- ture to note) ; Bowser ?;. Patrick, (Ky. ) 65 S. W. Rep. 824 (champerty) ; Cox r. Hoxie, 115 Mass. 120 (erroneous amoimt) : Comstock r. Smith, 26 Mich. 306 (coverture) ; ]\Iiller v. Thompson, 34 Mich. 10 (invalid execution) ; Crawford t\ Edwards. 33 ]Mich. 354 (failure of consideration) ; Lee v. Newman, 55 Miss. 365 (invalidity) : Johnson r. Parmely. 14 Hun, 398 (payment) ; Ferris v. Cranford, 2 Den. 595 (payment) : Horton r. Davis. 26 N' Y. 495 (want of record) : Freeman r. Auld. 44 N. Y. 50 (failure of consideration) ; Parkinson r. Sherman, 74 N. Y. 88 (failure of consideration) : Bennett v. Bates, 94 N. Y. 354, 370 (invalidity of mortgage). But see Goodman v. Ran- dall, 44 Conn. 321. 27G PERSONS AFFECTED BY CONTRACT. All parties should joined. In dealing with any of these defences it is obvious that all three parties should have an opportunity of litigating the question since all are interested in it, and it is desirable to have all concluded by the judgment. If a creditor who sues the promisor and is met by the defence of fraud or mistake in the contract neverthe- less prevails, but being unable to collect his judgment sues the origi- nal debtor, as he would be allowed to do in many jurisdictions, clearly the debtor cannot be concluded by the judgment in the first case and the creditor must try the same question again and perhaps with a different result.^^ Contracts under seal. Xone of the earlier cases which allowed a right of action to one who was not a party to the contract related to con- tracts under seal, and where statutes have not taken away the import- ance of the distinction between sealed and parol contracts the rule that one who is not a party to a contract under seal cannot sue upon it is still applied to contracts to benefit or pay a debt to a third per- son.*^*^ But in some states the rules of the common law distinguish- in sr contracts under seal from other written contracts have been abolished or diminished, so that it is not surprising that the distinc- tion as to the right of a third person to sue has also been disre- garded.^^ 59 In Green v. Stone, 54 N. J. Eq. 387, the court held that the defense that the clause assuming payment of a mortgage was inserted in a deed by mistake must be asserted by a crossbill to which the promisee must be made a party. 60 Hendricks r. Lindsay, 93 U. S. 143: Willard v. Wood. 13.5 U. S. 311, 313; 152 U. S. 502; Douglass v. Branch Bank, 19 Ala. 659; Hunter r. Wilson, 21 Fla. 250. 252; Gunter )'. Mooney. 72 Ga. 205; Moore v. House, 64 111. 162; Gautzert f. Hoge. 73 111. 30; 'Harms v. McCormick, 1?2 111. 104, 109 (now changed bv statute) ; Hinkley V. Fowler, 15 Me. 285; Farmington V. Hobart, 74 Me. 416; Seigman v. Hoflfacicer, 57 Md. 321; Montague v. Smith, 13 Mass. 396 ; Millard r. Baldwin, 3 Gray, 484 ; Robb v. Mudge, 14 Gray, 534, 538; Flynn v. Xorth American Life Ins. Co., 115 Mass. 449; Lee r. Newman, 55 Miss. 305, 374 ; How v. How, 1 X. H. 49 ; Crowell r. Currier. 27 K J. Eq. 152; Joslin r. New Jersey Car Spring Co., 36 N. J. L. 141, 146; Cocks V. Varney, 45 N. J. Eq. 72; Styles r. Long Co., 67 N. J. L. 413, 418 (but by stat- ute in 1898 the rule was extended to sealed contracts, ihid.) ; Strohecker v. Grant, 16 S. & R. 237: De Bolle r. Pennsylvania Ins. Co.. 4 Whart 68; Mis- sissippi R. R. Co. V. Southern Assoc, 8 P'hila. 107; McAlister r. Marberry, 4 Humph. 426: Fairchild r. North Eastern Assoc, 51 Vt. 613; Jones r. Thomas, 21 Gratt. 96. 101 (now changed by statute) ; McCarteney v. Wyoming Nat. Bank. 1 Wyo. 382. 61 Central Trust Co. r. Berwind-White Co., 95 Fed. Ren. 391 : Starbird v. Cranston. 24 Col. 20; Webster r. Fleming, 178 111. 140: Harts r. Emery. 184 HI. 500; Robinson r. Holmes. 75 Til. App. 203; Am. Splane Co. r. Barber. 91 111. App. 359; Garvin v. Moblev. 1 Bush, 48; .Tefferson r. Asch, 53 Minn. 446; Rogers r. Gosnell, 51 Mo. 466; 58 Mo. 589; Van Schaick v. Railroad, 38 K Y. 346; Coster r. Albany. 43 N. Y. 399: Riordan v. First Church, 26 N. Y. Suop. 38: Emmitt r. Brophv. 42 Ohio St. 82; Husrhes r. Oregon Co., 11 Oreg. '437; McDowell v. Laev, 35 Wis. 171; Bassett f. Hughes, 43 Wis. PERSONS INCIDENTALLY BENEFITED. 277 Person incidentally benefited. It sometimes happens that a person who is neither the promisee of a contract nor the party to whom perform- ance is to be rendered will derive a benefit from its performance. A typical case is where A. promises B. to pay him money for his ex- penses. A creditor of B. is not generally allowed to sue A.*"'^ It is obvious that such a creditor's right can properly be only a derivative one. As the obligation is to pay money to the debtor, there seems no reason why garnishment proceedings are not appropriate. Further illustrations. A different case arises where the promise is to indemnify against damages. Here the promisor's liability does not arise until the promisee has suffered loss or expense. Until then the promisee has no right of action, and consequently one claiming dam- ages can assert no derivative right against the promisor, much less a direct right.®^ Nor can the promisee sue for the benefit of persons claiming damages.*^"* A third person's benefit under a contract may be still more inci- dental. In a recent case the failure of the grantee of land to keep his promise to the grantor to pay a mortgage, resulted in a loss to the plaintiff of an interest in the land when the mortgagee foreclosed the mortgage. The New York court rightly refused relief.*^^ The con- tract was not made even partially for the plaintiff's benefit, and as the promisee was under no obligation to the plaintiff it is not possible to work out an indirect right. ^^ A Louisiana case®'^ furnishes another illustration. A number of hatters agreed to close their shops on Sundays, and for any breach it 319; H0ughtoii v. Milburn, 54 Wis. 554; Stites v. Tliompson, 98 Wis. 329, o31. A third person was allowed to enforce a promise under seal also in the following cases, but the point was not discussed. South Side Assoc, v. Cutler Co., 64 Ind. 560; Anthony r. Herman, 14 Kan. 494; Brenner r. Luth, 28 Kan. 581. See also Va. Code, § 2415; Newberry Land Co. v. Xewberry. 95 Va. 111. 62Cragin i: Lovell, 109 U. S. 194, 199; Thomas Mfg. Co. v. Prather, 65 Ark. 27 ; Burton r. Larkin, 36 Kan. 240. See also Jackson Iron Co. o. Negaunee Concentrating Co., 65 Fed. Rep. 298; Hill r. Omaha, etc., R. R. Co., 82 "Mo. App. 188. Bu"t see contra, Rothwell v. Skinker, 84 Mo. App. 109; Houghton V. jNIilburn, 54 Wis. 554. And where an insurance company had reinsiu'cd its risks, a policy-holder was allowed to siip tlie reinsuring com- pany directly in Glen r. Hope ]\Iut. Life Tns. Co., 50 N. Y. 379; Fischer r. Hope i\Iut. Life Tns. Co., 69 N. Y. 101 ; Johannes r. Phonix Ins. Co., 00 Wis. 50. 63 Hill v. Omaha, etc., R. R. Co., 82 ilo. App. 188; French r. Vix, 143 N. Y. 90; Embler r. Hartford Ins. Co., 158 N. Y. 431; Mansfield v. Mayor of New York. 165 NT. Y. 208. 64 New Haven r. Railroad, 62 Conn. 253. esDurnherr v. Rati, 135 N. Y. 219. See also Pearson r. Bailev, 62 N. E. Rep. 205 (Mass.). fis See also Constable v. National Steamship Co., 154 V. S. 51; Hennessy V. Bond, 77 Fed. Rep. 403, 405. 67 New Orleans St. Joseph's Assoc, r. Magnier, 16 La. Ann. 338. 278 PERSONS AFFECTED BY CONTRACT. was agreed that the offender should pay $100 to a specified charitable society. It was held that the society could not recover. The object of the contract was not to benefit the plaintiff, but to enforce per- formance of a promise by the imposition of a penalty. Assignment of Contracts. Rule 4. Transfer of rights under contract. We now come to the fourth rule, which we have expressed thus: — Persons other than the creditor may become entitled by representor- Hon or assignment to stand in the creditor s place and to exercise his rights under the contract. We need say nothing here about the right of personal representa- tives to enforce the contracts of the person they represent, except that it has been recognized from the earliest period of the history of our present system of law (/i). Right to sue on contract not assignable at common law. With regard to assignment, the benefit of a contract cannot be assigned (except by the Crown) at common law so as to enable the assignee to sue in his own name {i)-^^ The origin of the rule was attributed by Coke to the " wisdom and policy of the founders of our law " in discourag- ing maintenance and litigation {h) : but it is better explained as a logical consequence of the archaic view of a contract as creating a strictly personal obligation between the creditor and the debtor {I). An3'how it has been long established that the proper course at com- 218] mon *law is for the assignee to sue in the name of the as- signor.*® It appears from the Year Books that attempts were some- times made to object to actions of this kind on the ground of maintenance, but without success. That same rule is stated by Gains as prevailing in the Eoman law (m). (71) Subject to some technical ex- (I) Spence, Eq. Jurisd. of Chy. 2. ceptions which have now disap- 850. An examination of the earlier peared: see notes to Wheailey v. authorities has been found to con- Lane (1667) 1 Wms. Saund. 240 sqq. firm this view. Tlie rule is assumed and for early instances of actions of as unquestionable, and tht.'re is no debt brought by executors, Y. B. 20 trace of Coke's reason for it. The & 21 Ed. I. pp. .304, 374. objection of maintenance was set up, (t) Termes de la Ley, tit. Chose in not against the assignee suing in his Action. o\\Ti name, which was never at- (fc) Lampet's case (1613) 10 Co. tempted .so far as we can find, but Hep. 48 a. For exposition of the against his suing in the name of the rule in detail, see Dicey on Parties, assignor: see Note F in Appendix. 115. " (m) Gai. 2. 38, 39. Quod mihi ab 68 " The United States may sue at law in their name on a claim assigned to them." United States r-'Buford, 3 Pet. 12. 69 Glenn v. Marbury, 145 U. S. 499. RULES OF EQUITY. 279 In equity assignee may sue, if necessary. In equity the right of the as- signee was pretty soon recognized and protected, that is, if the assignor refused to empower the assignee to sue in his name at law.'^" Where the assignee had an easy remedy by suing in the name of the assignor, the Court of Chancery would not interfere (n). Legal right of assignee under Judicature Act, 1873. The Supreme Court of Judicature Act, 1873 (s. 25, sub-s. 6), creates a legal right to sue in the assignee's own name, but confined to cases where the assignment is absolute (0), and by writing under the hand of the assignor, and express notice in writing has been given to the debtor. In equity more extensive: how far governed by Statute of Frauds. There may still be more extensive equitable rights of this kind. By the aliquo debetur, id si velim tibi deberi, nullo eorum niodo quibus res corporales ad alium traiisferuntur, id efficere possum : sed opus est, ut iubente me tu ab eo stipuleris : quae res efficit ut a me liberetur et in- •cipiat tibit teneri quae dicitur novatio obligationis. Sine hac vero novatione non poteris tuo nomine agere, sed debes ex persona mea quasi cognitor aut procurator meus ■experiri. In later times the trans- feree of a debt was enabled to sue by utilis actio in his own name. This seems to have been first intro- duced only for the benefit of the pur- chaser of an inheritance: D. 2. 14 de pactis, 16 pr., C. 4. 39. de hered. vel act. vend. 1, 2, 4 — 6 ; and after- wards extended to all eases: C. eod. tit. 7, 9. See too C. 4. 10. de obi. et .■act. 1, 2, C. 4. 15. quando fiscus, 5, Arndts, Lehrbuch der Fandekten, § 254. (n) Hammond V. Messenger (1838) 9 Sim. 327, Spence, 2. 854, Harv. Law Rev. i. 6 — 7. (o) Tancred V. Delagoa Bay and E. Africa Ry. Co. (1889) 23 Q. B. D. 239, 58 L. J. Q. B. 459. An abso- lute assignment may be subject to a trust in respect of the moneys re- covered: Comfort V. Betts [1891] 1 ($. B. 737, 60 L. J. Q. B. 656, C. A. VV'hether the sub-section applies to an assignment of part of an entire debt, qucere : Durham Bros. v. Rob- ertson [1898] 1 Q. B. 765, 774, 67 L. J. Q. B. 484, C. A. At all events an undefined part will not do: Jones V. Humphreys [1902] 1 K. B. 10, 71 L. J. K. B. 23. See xurther as to whac amounts to an absolute as- signment. Mercantile Bank of Lon- don V. Evans [1899] 2 Q. B. 613, 68 L. J. Q. B. 921, C. A.; Marchant v. Morton, Down & Co. [1901] 2 K. B. 829, 70 L. J. K. B. 820. Ine term " legal chose in action " in a corre- sponding Colonial Act has been held to include a cause of action for neg- ligence: King V. Victoria Insurance Co. [1896] A. C. 250, 65 L. J. P. C. 38 ; and see per Farwell, J., Manches- ter Brewery Co. V. Coombs [1901] 2 Ch. 608. 619. 70 "A court of equity will not entertain a bill by the assignee of a strictly legal right, merely upon the ground that he cannot bring an aetion at law in hia own name, nor unless it appears that the assignor prohibits and prevents such an action from being brouglit in his name, or that an action so brought would not afford the assignee an adequate remedy." Walker v. Brooks, 125 Mass. 241 ; Hayward v. Andrews, 106 U. S. 672; "N. Y. Guaranty, etc., Co. v. Memphis Water Co., 107 U. S. 205; Glenn v. Marbury, 145 U. S. 499; Adair V. Winchester, 7 G. & .T. 114; Carter v. Insurance Co., 1 Johns. Ch. 463: Bank r. Mumford. 2 Barb. Ch. 596; Smiley v. Bell, Mart & Yerg. 3'78; Moseley v. Bush, 4 Rand. 392. 280 PERSONS AFFECTED BY CONTRACT. Statute of Frauds (29 Car. 2, c. 3), s. 9, "all grants and assign- 219] ments of any trust or confidence" *must be in writing signed by the assignor, and by sect. 7, equitable interests in land must be created by writing. Sect. 9 does not require writing for the creation in the first instance by the legal owner or creditor of an equitable interest in personal property or a chose in action : and it may be argued perhaps that its operation is altogether confined to interests in land by the context in which it occurs. The writer is not aware of any decision upon it (p). It seems that to constitute an equitable assignment there must be at least an order to pay out of a specified fund (q). As for the notice to the debtor, the rule of equity is that it must be express but need not be in writing (r).'^^ There remain, therefore, a great number of cases where the right is purely equitable, although the enlarged Jurisdiction of every branch of the Supreme Court makes the distinction less material than formerly. Partial statutory exceptions. Several partial exceptions to the com- mon rule have been made at different times by modern statutes, on which, however, it seems unnecessary to dwell (s). Limitation of assignee's rights. In ordinar}?^ cases rights under a con- 220] tract derived by ^assignment from the orignial creditor are subject, as already stated, to the following limitations: — 1st. Title by assignment is not complete as against the debtor (p) See 1 Sanders on Uses, 5th ed. Policies of marine insurance: 31 & 343. 32 Vict. c. 86. (q) Percival v. Dunn (1885) 29 Things in action of companies Ch. Div. 128, 54 L. J. Ch. 572. An (Companies Act, 1862, s. 157) and f 'venturous attempt to extend the bankrupts (Bankruptcy Act, 1883, ss. conception of equitable assignment 56. 57, and see definition of " prop- may be seen in Western Wagon and erty," s. 168) a igned in pursuance Property Co. v. West [1892] 1 Cli. of those Acts respectively. As to the 271, 61 L. J. Ch. 244. effect of registration under the pres- (r) Re Ticheuer (1865) 35 Beav. ent Acts of previously existing com- 317. panics, &c., in transferring the right (s) The more important instances to sue on the contracts made by the are these: — company or its officers in its former East India Bonds, 51 Geo. 3, c. 64, state, see the Companies Act, 1862, s. s. 4, which makes them negotiable. 193. Mortgage debentures issued by Local authorities (including any land companies under the Mortgage authority having power to leAy a Debenture Act, 1865, 28 & 29 Vict. rate) may issue transferable deben- c. 78. amended by 33 & 34 Vict. c. 20. tu s and debenture stock under the Policies of life assurance: 30 & 31 Local Loans Acts, 1875, 38 & 39 Vict. c. 144. Vict. c. 83. 71 Skobis V. Ferge, 102 Wis. 122. assignment: xotice to debtor. 281 without notice to the debtor, and a debtor who performs his contract to the original creditor without notice of any assignment by the cred- itor is thereby discharged. 2nd. The debtor is entitled as against the representatives, and, unless a contrary intention appears by the orignal contract, as against the assignees of the creditor, to the benefit of any defence which he might have had against the creditor himself. 1. Rules of equitable assignment in general — Notice to debtor. As to notice to the debtor. Xotice is not necessary to complete the assignee's equitable right as against the original creditor himself, or as against his representatives, including assignees in bankruptcy (t) 'P but the claims of competing assignees or incumbrancers rank as between themselves not according to the order in date of the assigiunents, but according to the dates at which they have respectively given notice to the debtor. This was decided by the cases of Dearie v. Hall and Loveridge v. Cooper (u), the principle of which was soon after- wards affirmed by the House of Lords {x)J^ The same rule prevails (t) Burn V. Carvallio (1839) 4 M. self, but from his legal personal rep- & Cr. 690, 4S E,. R. 213. resentative, may equally gain pri- (u) (1823-7) 3 Kiiss. 1, 38, 48, 27 ority by notice: Fresh/ield's Trusts R. R. 1. (1879) 11 Ch. Div. 198. The rule is (x) Foster v. Cockerell (1835) 3 criticized, though allowed to be set- Cl. & F. 456, 39 R. R. 24. It has tied law, in Ward v. Duncombe only lately been decided that a sec- [1893] A. C. 369, ]3er Lord Macnagh- ond assignee who takes his assign- ten at pp. 391-3, 62 L. J. Ch. 881. ment not from the beneficiary him- '2 Jackson r. Hamm, 14 Col. 58; Bishop r. Holcomb. 10 Conn. 444; Wood r. Partridge, 11 Mass. 488. 491; Thaver v. Daniels, 113 Mass. 129; Conway r. Cutting, 51 N. H. 407, 409; Muir v. Schenk, 3 Hill, 228. And see cases cited infra, n. 79. 73 AV Gillespie, 15 Fed. Rep. 734; Methven v. S. I. Light Co., 66 Fed. Rep. 113; Graham Paper Co. r. Pembroke, 124 Cal. 117; Bishop v. Holcomb, 10 Conn. 444, 446 ; Enochs-Havis, etc., Co. v. Newcomb, 79 Miss. 462 ; Murdoch v. Finnev, 21 Mo. 138; Copeland r. Manton, 22 Ohio St. 398. 401; Fralev's Appeal, 76 Pa. 42; Pratt's Appeal, 79 Pa. 378; Phillips's Est., 205 Pa. 515; Clodfelter r. Cox, 1 Sneed, 330 ; Ward r. Morrison, 25 Vt. 593. In many States of this country, however, the English rule does not prevail. Sutherland r. Reeve, 151 111. 384; White v. Wilev, 14 Ind. 496; Summers v. Hutson, 48 Ind. 228; Thayer v. Daniels, 113 Mass. 129; Burton v. Gage, 85 Minn. 355: Kennedy v. Parke, 17 N. J. Eq. 415; Kamena v. Huelbig, 23 N. J. Eq. 78; Emley v. Perrine. 58 N. J. L. 472; Muir v. Schenck, 3 Hill, 228; Bush r. Lathrop, 22 N. Y. 535, 546; Greentree r. Rosenstock, 61 N. Y. 583, 593; Williams r. Ingersoll, 89 N. Y. 508, .523; Fairbanks r. Sargent, 104 N. Y. 108, 118; Fortunate V. Patten. 147 N. Y. 277; Lindsay v. Wilson. 2 Dev. & Bat. Eq. 85; Meier r. Hess, 23 Oreg. 590; Clarke r. Hoireman. 13 W. Va. 718; Tingle r. Fisher, 20 W. Va. 497. See further, Roberts r. Insurance Co.. 120 U. S. 511: Bank r. Schuler. 120 U. S. 511. "Whatever view may be entertained ns to the English doctrine which prefers the assignee who first gives notice, the second assignee is in several con- tingencies clearly entitled to supplant the first assignee, e. p., (1) if acting in good faith he obtains paym,ent of the claim assigned; Judson r. Corcoran, 582 PERSONS AFFECTED BY CONTRACT. in the modern civil law (2/)/'* and has been adopted from it in the Scottish law (2) ; and the true reason of it, though not made very prominent in the decisions which establish the rule in England, is the protection of the debtor. He has a right to look to the person with whom he made his contract to accept performance of it, and to 221 ] give him a *discharge, unless and until he is distincth^ in- formed that he is to look to some other person. According to the original strict conception of contract ("a ne considerer que la pubtilite du droit" as Pothier (a) expressed it), his creditor or his creditor's assignee cannot even require him to do this, any more than in the converse but substantially different case a debtor can require his creditor to accept another person's liability, and his assent must be expressed by a novation (&). Such was in fact the old Eoman law, as is shown by the passage already cited from Gains. By the modern practice the novation is dispensed with, and the debtor be- comes bound to the assignee of whom he has notice. But he cannot be bound by any other assignment, though prior in time, of which he knows nothing. He is free if he has fulfilled his obligation to the original creditor without notice of any assignment ;'^ he is equally iy) See Pothier, Contrat de Vente, (a) Contrat de Vente, § 551. §§ 560, 554 sqq. (b) See p. *204, above, (s) Erskine Inst. Bk. 3, tit. 5. 17 How. 612; Bridge v. Connecticut Ins. Co., 152 Mass. 343; Bentley v. Root, 5 Paige, 632, 640; or (2) if he reduces his claim to a judgment in his own name: Judson v. Corcoran, 17 How. 612; Mercantile Co. v. Corcoran, 1 Gray, 75; or (3) if he effects a novation with the obligor, wliereby the obligation in favor of the assignor is superseded by a new one running to himself ; New York Co. V. Schuyler, 34 N. Y. 30, 80; Strange v. Houston Co., 53 Tex. 162; or (4) if he obtains the document containing the obligation when the latter is in the form of a specialty; Re Gillespie, 15 Fed. Rep. 734; Bridge v. Connecticut Ins. Co., 152 Mass. 343; Fisher v. Knox, 13 Pa. G22. In all these cases having obtained a legal right in good faith and for value, the prior assignee cannot properly deprive him of this legal right." Ames Cas. Trusts (2d ed.), 328. And see further ibid., 326-328. 74 Not in Germany. See 4 Harv. L. Rev. 309, n. 2. 75 Bull V. Sink, (Kan. App.) 57 Pac, Rep. 859; Clark v. Boyd, 6 T. B. Mon. 293; Leahi r. Dugdale's Adm'r, 34 Mo. 99; Reed t\ Marble, 10 Paige, 409; Trustees v. Wheeler, 61 N. 1^ 88, 120; Heermans v. Ellsworth, 64 N. Y. 159; Van Keuren v. Corkins, 66 N. Y. 77; Brindle v. Mcllvaine, 9 S. & R. 74; Gaullagher v. Caldwell, 22 Pa. 300; Skobis v. Ferge, 102 Wis. 122. On the other hand, no discharge from the original creditor after the debtor has notice of the assignment is of any avail. Welch v. Mandeville, 1 Wheat. 233; Mandeville r. Welch, 5 Wheat. 277, 283; Fassett r. Mulock, 5 Col. 466; Chapman r. Shattuck, 8 111. 49. 52; Marr v. Hanna. 7 J. J. Marsh. 642; Hackett v. Martin. 8 Me. 77; Matthews r. Houghton. 10 Me. 420; East- man V. Wright, 6 Pick. 316; Cutler r. Haven, 8 Pick. 490; St. Johns v. Charles, 105 Mass. 262; Anderson r. Miller, 15 Miss. 586; Lipp v. South Omaha Co.. 24 Neb. 692; Duncklee r. Greenfield Co.. 23 N. H. 245; Sloan v. Sommers, 2 Green (N. J.) 509; Gaullagher v. Caldwell, 22 Pa. 300, 302; Strong v. ASSIGNMENT : XOTICE TO DEBTOR. 283 free if he fulfils it to the assignee of whose right he is first informed, not knowing either of any prior assignment by the original creditor or of any subsequent assignment by the new creditor (c). It is enough for the completion of the assignee's title " if notice be given to the person by whom payment of the assigned debt is to be made, wdiether that person is himself liable or is merely charged with the duty of making the payment " (fZ), e. g., as an agent entrusted with a particular fund. Xotice not given by the assignee may be sufficient, if shown to be such as a reasonable man would act upon(e).'^^ Doctrine of notice does not apply to interests in land; but does to all other equitable interests. All this doctrine of notice has no application to interests in land (/) : but, subject to that ^exception, it applies [222 to rights created by trust as well as to those created by contract; ihe beneficial interest being treated for this purpose exactly as if it were a debt due from the trustee. In the case of trusts a difficulty may arise from a change of trustees; for it may happen that a fund is transferred to a new set of trustees without any notice of an assign- ment which has been duly notified to their predecessors, and that notice is given to the new trustees of some other assignment. It is still unsettled which of the assignees is entitled to priority in such a case : but it has been decided that the new trustees cannot be made personally liable for having acted on the second assignment {g).'^'^ (c) See per Willes J., L. R. 5 C. (/) Although the exception is P. at p. 594. Per Knight Bruce fully established its reasonableness is L. J. Stocks v. Dobson (185.3) 4 D. douljtful. Its effect is that equi- M. & G. 11, 17, 22 L. J. Ch. 884. No- table interests in land stand on a dif- tice after a negotiable instrument ferent footing from personal rights: has been given by the debtor is too see this relied on as the ground of late even if the instiiiment is still the exception. Jo>ies v. Jones ( 18.37- held by the original creditor: Bence 38) 8 Sim. 633, 42 R. R. 249. But T. Shearman [1898] 2 Ch. 582, 67 L. on the other hand their liability to jr. Ch. 513, C. A. be defeated by a purchase of the legal (d) Per Lord Selborne C. Addison estate for value without notice y. Cox (1872) L. R. 8 Ch. 76, 79, 42 shows that they fall sliort of real L. J. Ch. 291. ownership. (e) Lloijd v. Banks (1868) L. R. (g) Phipps V. Lovegrove (1873) 3 Ch. 488. L. R. 16 Eq. 80, 42 L. J. Ch. 892; see Strong, 2 Aikens, 373. See also Brown v. Hartford Tns. Co., 4 Fed. Cas. 379; Wagner r. National Ins. Co.. 90 Fed. Rep. 3d5 ; Chisolm v. Newton, 1 Ala. 371; Cunningham r. Carpenter, 10 Ala. 109, 112; Reed v. Nevins, 38 Me. 193; Rock- wood r. Brown. 1 Gray. 261. "<5See Anderson v. Van Alen, 12 Johns. 343; Guthrie v. Bashline, 25 Pa. 80; Tritfs Adm'r r. Colwell's Adm'r, 31 Pa. 228; Barron v. Porter, 44 Vt. 587. Notice given on Sunday is good. Crozier r. Shants, 43 Vt. 478. Notice given to one of two trustees is sufficient. Pardee r. Piatt, 20 Conn. 395. TT Where a trustee (who is also one of the beneficiaries) himself makes successive assignments of his interest, his knowledge of the first assignment is not notice to his co-trustees. Lloyd's Bank v. Pearson, [1901] 1 Ch. 865, 284: PERSONS AITECTED BY CONTRACT, The rules as to notice apply to dealings with future or contingent as well as with present and liquidated claims. " An assurance office might lend money upon a policy of insurance to a person who had insured his life, notwithstanding any previous assignment by him of the policy of which no notice had been given to them" (h). 2. Assignee takes subject to equities: double meaning of the rule. As to the debtor's rights against assignees. The rule laid down in the second explanation is often expressed in the maxim " The assignee of an equity is bound by all the equities affecting it." This, however, includes another rule founded on a distinct principle, which is that no transaction purporting to give a beneficial interest apart from 223] legal ownership (i) can confer on the person who takes or *is intended to take such an interest any better right than belonged to the person professing to give it him. If A. contracts with B. to give B, something which he has already contracted to give C, then C.'s claim to have the thing must prevail over B.'s, whether B. knew of the prior contract with C. or not (Jc). And if B. makes over his right to D., D. will have no better right than B. had (/)."* And this ap- L. R. IG Eq. p. 90 as to the precau- Maxfield v. Bitrton (1873) L. R. 17 tions to be taken by an assignee of jiq. 15, 19, 43 L. J. Ch. 46, go even, an equitable interest -who wishes to farther; but it seems at least doubt- be perfectly safe. The death of one ful whether thej- can be supported, of two or more trustees, being the (fc) This is of course consistent only one who has notice of an in- with B. having his remedy in dam- cumbrance, does not deprive that in- ages. Cp. p. *31, above, cumbrance of the priority it has (I) See Pinkett v. Wright (1842) gained: Ward v. Duncomhe [1893] A. 2 Ha. 120, affd. nom. Murray v. C. 369. 62 L. J. Ch. 881. Pinkett (1846) 12 CI. & F. 764; (h) L. R. 16 Eq. at p. 88. Ford v. White (1852) 16 Beav. 120; (i) Certain dicta in Hharples v. Clack v. Holland (1854) 19 Beav. Adams (1863) 32 Beav. 213, 216, and 262. 'i'8The American law on this point is in great conflict. It is universally admitted that the assignee takes subject to all defenses the debtor may have against the assignor prior to notice of the assignment. McCarthy v. Mt. Tecarte Co., 110 Cal. 689; Parmlv v. Bucklev, 103 111. 115; Barker t. Barth, 192 111. 460; Brown r. Leavitt. 2(i Me. 251 ; 'Weinwick r. Bender, 33 Mo. 80; Marsh v. Garney, 69 X. H. 236; Burv r. Hartman, 4 Serg. &. R. 177; Frantz r. Brown, 17 Serg. & R. 287; Pellman v. Hart, 1 Pa. 263, 266; Gaullagher r. Caldwell. 22 Pa, 300; Commonwealth v. Sides, 176 Pa. 616; Stebbins r. Bruce, 80 Va. 389; Stebbins v. Union Pac. R. R. Co., 2 Wyo. 71. It is also settled that defenses acquired by the debtor against the assignor after notice of assignment are invalid. Leigh ;•. Leich. 1 B. & P. 177: State r. Jenning. 10 Ark. 428; Kitzinger r. Beck. 4 Col. App. 206: Chapman r. Shattuck. 8 111. 49; Carr v. Waugh, 28 HI. 418: Chicago Title Co. v. Smith. i.^8 111. 417; Daggett r. Flanagan. 78 Ind. 253: :\rcFa(Iden ?■. Wilson. 96 Tnd. 253: MilHken r. LorinjT. .■>7 Me. 408; Jones r. Witter. 13 :\ras«. 304; Schilling V. :\Iullen, 55 Minn. 122: Leahy r. Dngdale. 41 Mo. 517; Cameron r. Little. l.T N. H. 23; Andrews r. Becker, 1 Johns. 426; Littlefield V. Storv. 3 Johns. 426; ASSIGNMENT SUBJECT TO EQUITIES. 285 plies not only to absolute but to partial interests (such as equitable charges on property) to the extent to which they may affect the property dealt with. Again, by a slightly different application of the same principle, a creditor of A. who becomes entitled by operation of law to appropriate for the satisfaction of his debt any beneficial interest of A.'s (whether an equitable interest in property or a right of action) can claim nothing more than such interest as A. actually had; and he can gain no priority by notice to A.'s trustee or debtor even in cases where he might have gained it if A. had made an express and unqualified assignment to him (m).''^ But we are not concerned here with the development of these doctrines, and we return to the (m) Pickering v. Ilfracombe Ry. 743, 23 L. J. Q. B. 345, see Croio v. Co. (1868) L. R. 3 C. P. 235, 37 L. Robinson (1868) L. R. 3 C. P. 264; J. C. P. 118, overruling virtually judgment of Erie J. (diss.) in Watts Watts V. Porter (1854) 3 E. & B. v. Porter. Wilson 0. Stihvell, 14 Ohio St. 4G4, 471. Compare Boran r. Tradesmen's Nat. Bank, 137 N. Y. 450; First Nat. Bank r. Clark. 9 Baxt. 589. In England the assignee also takes subject to unknown equities of others than tlie debtor, and this rule is followed in New York and some other State'? in this country. The authorities are collected in Ames, Cas. Trust, p. 309, n. Recent decisions to this effect are Owen r. Evans, 134 N. Y. 514; Central Trust Co. v. West India Co., 169 N. Y. 314, 324; Culmer v. American Co., 21 N. Y. App. Div. 556; State r. Hearn, 109 N. C. 150; Kernohan v. Dur- ham, 48 Ohio St. 1; Patterson r. Rabb, 38 S. C. 138. But many States protect an assignee who has taken an assignment of chose in action for value and without notice from such latent equities. See Ames, Cas. Trusts, p. 310, n. and the following recent decisions : Fir.st Bank r. Perris, 107 Cal. 55 ; Humble V. Curtis, 160 111. 193; Mann r. Merchants' Trust Co., 100 111. App. 224; Hale r. First Bank, 50 la. 642; Newton r. Newton, 46 Minn. 33; MoiTett v. Parker, 71 Minn. 139; Brown r. Equitable Soc, 75 Minn. 412; Duke V. Clark, 58 Miss. 465. This view is supported by Professor Ames in 1 Harv. L. Rev. 6-8, on the ground that the assignee has acquired a legal power of attorney to col- lect the claim from the debtor, and that equity should not deprive him of this legal right. As to the possibility of the right to assert an equity being lost by estoppel, see infra, p. 294, n. 88. 79 Pickering v. Ilfracombe Ry. Co., L. R. 3 C. P. 235 ; Jones v. Lowery, 104 Ala. 2.52; ^\'alton v. Horkan, 112 Ga. 814; Savage r. Gregg, 150 Ilk 161: McGuire r. Pitts, 42 la. 535; Littleficid v. Smith, 17 Me. 327; Wakefield V. Marvin, 3 Mass. 558; Dix r. Cobb, 4 Mass. 512; Thayer v. Daniels. 113 Mass. 129; MacDonald r. Kneeland, 5 Minn. 352; Schoolfield v. Hirsh, 71 Miss. 55; Smith ('. Sterritt, 24 Mo. 260; Knapp r. Standley, 45 Mo. App. 264; Hendrickson r. Trenton Bank. 81 Mo. App. 332; Marsh V. Garney, 69 N. H. 236; Board v. Duparquet, 50 N. J. Eq. 234; Van Buskirk v. Warren". 34 Barb. 457; Williams v. Ingersoll, 89 N. Y. 508; Meier r. Hess, 23 Oreg. 599; Stevens v. Stevens, 1 Ashmead, 190; United States r. Vaughan, 3 Binn. 394; Pellman v. Hart. 1 Pa. 263; Speed v. Mav, 17 Pa. 91; Patton V. Wilson, 34 Pa. 299 ; Noble r. Thompson Oil Co., 79 Pa." 354, 367 : Tierney v. McGarity, 14 R. I. 231: Brown V. Minis, 1 McCord. SO: Ballingham Co. r. Brisbois. 14 Wash. 173. But see contra. Bishop v. Holcomb, 10 Conn. 444; Vanbuski'-k V. Hartford Ins. Co., 14 Conn. 141 {conf. Clark r. Connecticut Peat Co., 35 Conn. 303); Clodfelter v. Cox, 1 Sneed, 330: Dews r. Olwill. 3 Baxt. 4.32; Rhodes v. Havnes. 95 Tenn. 673; Ward r. :\[orrisnn. 25 Vt. 593; Nichols v Hooper, 61 Vt. 295. See also McWilliams v. Webb. 32 Ta. 577; Ruthven v. Clarke, 109 la. 25; Vvhiteside v. Tall, 88 Mo. App. 168, 171. 286 PERSONS AFPECTED BY CONTRACT. other sense of the general maxim. In that sense it is used in such judicial expressions as the following : " If there is one rule more perfectly established in a court of equity than another, it is this, that whoever takes an assignment of a chose in action takes it subject to all the equities of the person who made the assign- ment " ( n ) . " It is a rule and principle of this Court, and of every Court, I believe, that where there is a chose in action, whether it is a debt, or an obligation, or 224] a trust fimd, and it is assigned, the person who holds the debt or *obli- gation, or has undertaken to hold the trust fund, has as against the assignee exactly the same equities that he would have as against the assignor" (0). This is in fact the same principle which is applied by common law as well as equity jurisdictions for the protection of persons who con- tract with agents not known to them at the time to be agents (p). What is meant by this special use of the term " equities " will be best ehown by illustration. A debt is due from B. to A., but there is also a debt due from A. to B. which B. might set off in an action by A. In this state of things A. assigns the first debt to C. without telling him of the set-off. B. is entitled to the set-off as against C. (q).^ Again, B. has contracted to pay a sum of money to A., but the con- tract is voidable on the ground of fraud or misrepresentation. A. in) Lord St. Iveonards, Mangles v. Beav. 163, 173, 27 L. J. Ch. 314, Dixon (1852) 3 H. L. C. 702. 731. where the doctrine is fully ex- (0) James L.J. (sitting as V.-C.) pounded. As to set-off accruing af- Phipps V. Lovegrove (1873) L. R. 16 ter notice of assignment, Stephens: Eq. 80, 88, 42 L. J. Ch. 892. v. Tenahles (1862) 30 Beav. 62.5; (p) See pp. *103. *104, above. Watson v. Mid Wales Ry. Co. (1867) (q) Cavendish v. Geaves (1857) 24 L. R. 2 C. P. 593, 30 L. J. C. P. 285. 80 Hall V. Hickman, 2 Del. Ch. 318; Hooper v. Erundage. 22 Me. 460; McKenna r. Kirkwood, 50 Mich. 544; Hunt v. Shackleford, 55 Miss. 94; San- born V. Little, 3 X. H. 539: Wood v. Mayor, 73 X. Y. 556; Bank v. Bynum, 84 X. C. 24; Metzgar c. Metzgar, 1 Rawle, 227. And see infra, p. *231. In an action by the assignee of a chose in action, the defendant cannot set off a debt existing in his favor against the assignor at the time of the assignment, but maturing afterwards. Graham r. Tilford, 1 Met. (Ky. ) 112; Chambliss r. Matthews, 57 Miss. 306; Beckwith v. Bank, 9 X. Y. 211; Myers. V. Davis. 22 X. Y. 489; Martin r. Kunzmuller, 37 X'. Y. 396; Roberts i\ Carter. 38 X. Y. 107 ; Fuller v. Steiglitz, 27 Ohio St. 355. And see Adams i\ Rodarmel, 19 Ind. 339; Walker f. McKav, 2 :\[et. (Kv.) 294: Backus v. Spalding. 129 :\Iass. 234: Follett V. Buver, 4 Ohio St. 586. Cp. Railroad Co. V. Rhodes, 8 Ala. 206; Morrow r. Bright. 20 :Mo. 298; Williams v. Helme, 1 Dev. Eq. 151 ; Miller r. Bomberger, 76 Pa. 78. The assigned debt, however, need not have been due at the time of the assignment. If the defendant's claim was due at that time he can set it off against an assiarned debt maturing in the assignee's hands. Scott v. Armstrong. 146 C. S. 499: Re Hatch. 155 N. Y. 401. Contra, Koegel v. Trust Co., 117 Mich. 54. He can set off a claim against the assignor, which he has acquired after the assignment, and before notice thereof. McCabe v. Grey, 20 Cal. 509 ; Adams r. Leavens, 20 Conn. 73: Bank v. Balliet. 8 W. & S. 311. But not one acquired after notice of the assignment. Crayton r. Clark. 11 Ala. 787: Goodwin r. Cunningham, 12 Mass. 193: St. Andrew r. Manchousr, 134 ]\Iass. 42: Lake r. Bro\\-n, 7 How. (Miss.) 661; Weeks v. Hunt, 6 Vt. 15; infra, p. 295, n. 90. ASSIGNMENT FREE FROM EQUITIES. 287 assigns the contract to C, who does not know the circnm?tances that render it voidable. B. may avoid the contract as against C. (r). Again, in a some what less simple case, there is a liquidated debt from B. to A. and a current account between them on which the balance is against A. A. assigns the debt to C, who knows nothing of the account. B. may set off as against C. the balance which is due on the current account when he receives notice of the assignment, but not any balance which becomes due afterwards (s). The rule may be excluded by original contract. But it is open to the contracting parties to exclude the operation of this rule if they think fit by making it a term of the original contract that the debtor shall not set up against an assignee of the contract any counter claim which he may have against the original creditor. This is ^established [225 by the decision of the Court of Appeal in Chancery in Ex parte Asiatic Banking Corporation, the facts of which have already been stated for another aspect of the case (t). Two alternative grounds were given for the decision in favour of the claim of the Asiatic Banking Corporation under the letter of credit. One, which we have already noticed, was that the letter was a general proposal, and that there was a complete contract with any one who accepted it by advancing money on the faith of it. The other was that, assuming the original contract to be only with. Dickson, Tatham, & Co. to whom the letter was given, yet the takers of bills negotiated under the letter Avere assignees of the contract, and it appeared to have been the intention of the original parties that the equities which might be available for the bank against Dickson, Tatham, & Co. should not be available against assignees. Lord Cairns, then Lord Justice, thus stated the law: — " Generally speaking a chose in action assignable only in equity must be assigned subject to the equities existing between the original parties to the contract; but this is a rule "wliich must yield when it appears from the nature or terms of the contract that it must have been intended to be assignable free from and unaffected by such equities.'' "Where assignees of a chose in action are enabled by statute to sue at law, similar consequences may be produced by way of estoppel (u) ; which really comes to the same thing, the doctrine of estoppel being a mere technical and definite expression of the same principle. (r) Graham v. Johnson (18G9) L. (t) (1867) L. R. 2 Ch. 391. 36 L. R. 8 Eq. 36, 38 L. J. Ch. 374. J. Ch. 222. p. *23. supra. is) Cavendish v. Geares (1857) {ji) Wehh v. Heme Ban Commis- 24 Beav. 163, 27 L. J. Ch. 314. sioners (1870) L. R. 5 Q.'B. 642, 39 L. J. Q. B. 221. 288 PERSONS AFFECTED BY CONTRACT. Later decisions: form of instrument, how far material. llie principle thus laid down has been followed out in several later decisions on the eaect of transferable debentures issued by companies. The ques- tion whether the holder of such a debenture takes it free from equities is to be determined b}- the original intention of the parties. 226] *The form of the instrument is of course material, but the gen- eral tenor is to ])e looked to rather than the words denoting to whom payment will Ije made ; these cannot be relied on as a sole or conclusive test. Making a debenture payable to the holder or bearer does not necessarily mean more than that the issuing company will not require the holder who presents the instrument for payment to prove his title, especially if the object of the debenture is on the face of it to secure a specific debt (.r).®^ But an antecedent agreement to give de- bentures in such a fonn is evidence that they were meant to be assign- able free from equities (?/) ; and debentures payable to 1)earer without naming any one as payee in the first instance are prima facie so assign- able (2) and may be negotiable (a) ; so again if the document re- sembles a negotiable instrument rather than a common money bond or debenture in its general form (h). Even when there is nothing on the face of the instrument to show the special intention of the parties, the issuer cannot set up equities against the assignee if the instrument was issued for the purpose of raising money on it (c). The general circumstances attending the original contract — e. g. the issue of a number of debentures to a creditor instead of giving a single bond or covenant for the whole amount due — may likewise be important. Moreover, apart from any contract with the original creditor, the issuing company may be (x) Financial Corporation's claim 374, 385, 42 L. J. Q. B. 183, see (1868) L. R. 3 Ch. 355, 360, 37 L. Bechuanaland Exploration Co. V. J. Ch. 362. London Trading Bank [1898] 2 Q. B. iy) Ex parte New Zealand Bank- 658, 67 L. J. Q. B. 986. ing Corporation (1867) L. R. 3 Ch. {b) Ex parte City Bank (1868) L. 154, 37 L. J. Ch. 418. R. 3 Ch. 758. {z) Ex parte Colhorne & Htraw- (c) Dickson v. Swansea Tale Ry. Iridge (1870-1) L. R. 11 Eq. 478, Co. (1868) L. R. 4 Q. B. 44, 38 L 40 L. J. Ch. 93. 343. J. Q. B. 17; Graham v. Johnson (a) Notwithstanding Crouch v. (1860) L. R. 8 Eq. 36. 38 L. J. Ch. Credit Fonder (1873) L. R. 8 Q. B. 374, seems not consistent with this. 81 " Contracts are not necessarily negotiable, because by their terms they inure to the benefit of the bearer." Railroad Co. r. Howard, 7 Wall. 392. But bonds made payable to bearer, issued l)y corporations, are treated in this country as negotiable securities transferable free from equities. Mercer Countv V. Hackett, IWall. 83, 95. Supra, p. 144, n. 18. ASSIGNMENT FREE FROM EQUITIES. 289 estopped from setting up *equities against assignees by subse- [227 quent recognition of their title (d). The rule extends to an order for the delivery of goods as well as to debentures or other documents of title to a debt payable in money (e).^^ Quaere, when the original contract is voidable. On principal this doc- trine seems inapplicable in a case where the original contract is not merely subject to a cross claim but voidable. For the agree- ment that the contract shall be assignable free from equities is itself part of the contract, and should thus have no greater valid- ity than the rest. A collateral contract for a distinct consider- ation might be another matter : but the notion of making it a term of the contract itself that one shall not exercise any right of rescinding it that may afterwards be discovered seems to involve the same kind of fallacy as the sovereign power in a state assuming to make its own acts irrevocable.^ ISTor does it make any difference, so long as we adhere to the general rules of contract, that the stipulation is in favour, not of the original creditor, but only of his assignees (/). However, the point has not been distinctly raised in any of the de- cided cases. In Graham v. Johnson (g), where the contract was origi- nally voidable (if not altogether void : the plaintiff had executed a bond under the impression that he was accepting or indorsing a bill of (d) Higgs v. Northern Assam Tea seems not: Brunton's claim (1874) Co. (1869) L. R. 4 Ex. 387, 38 L. J. L. R. 19 Eq. 302, 312, 44 L. J. Ch. Ex. 233 ; Ex parte Universal Life 450. Assurance Co. (1870) L. R. 10 Eq. (e) Merchant Banking Co. of Lon- 458, 39 L. J. Ch. 829 (on same don v. Phoenix Bessemer Steel Co. facts): Ex parte Chorlcy (1870) L. (1877) 5 Ch. D. 205, 46 L. J. Ch. R. 11 Eq. 157, 40 L. J. Ch. 153; 418. cp. Re Bahia d San Francisco Ry. (f) In principle it is the same as Co. (18G8) L. R. 3 Q. B. 584, 37 the case put in the Digest (50. 17, L. J. Q. B. 176. Qu. can Athenceum de reg. inris. 23) " non valere si con- Life Assurance Soc. v. Pooley (1858) venerit, ne dolus praestetur." 3 De G. t J. 294, 28 L. J. Ch. 119, {g) (1869) L. R. 8 Eq. 36, 38 be reconciled with these cases? It L. J. Ch. 374. 82 See Jaqua v. Montgomery, 33 Ind. 36 ; 2 Ames Cas. B. & X. 782, n. 83 But an agreement in a life insurance policy tliat it should be incontest- able after two years is held valid on the ground that the agreement in effect fixes a short Statute of Limitations within which fraud must be discovered. See Murray v. Insurance Co.. 22 R. I. 524. and eases cited. An agreement that an architect's certificate should be binding in spite of error or fraud was sustained in Tullis r. Jacson, [1892] 3 Ch. 441. Cp. Redmond v. Wynne. 13 N. S. Wales (Law). 39. See further on the general question. Hofflin r. Moss, 67 Fed. Rep. 440; Kelley r. Insurance Co., 109 Fed. Rep. 56: Hill c. Thixton, 94 Kv. 96; McCarthy v. Insurance Co.. 74 Minn. 530: Chism r. Schipper. 51 N. J. L. 1: Wriffht r. Mutual Benefit Assoc, 118 N. Y. 237; Bridger v. Ooldsmith, 143 N.^Y. 424. 19 290 PEESONS AFFECTED BY CONTRACT. exchange) (h) , an assignee of the bond as well as the obligee was 228] restrained from enforcing the bond: but the *decision was rested on the somewhat unsatisfactory ground that, although the instrument was given for the purpose of money being raised upon it, there was no intention expressed on the face of it that it should l)e assignable free from equities. However, if the contract w^ere not enforceable as between the original parties only by reason of their being in pari delicto, as not having complied with statutory requirements or the like, an assignee for value without notice of the original defect will, at all events, have a good title by estoppel (i). Difficulties of assignee of ordinary contract. We may now observe t3ie difficulties which make the mere assignment of a contract inadequate for the requirements of commerce, and to meet which negotiable in- struments have been introduced. The assignee of a contract is under two inconveniences (k). The first is that he may be met with any defence which would have been good against his assignor. This, we have seen, may to a considerable extent if not altogether be obviated by the agreement of the original contracting parties. The second is that he must prove his own title and that of the intermediate assignees, if any; and for this purpose he must inquire into the title of his immediate assignor. This can be in part, but only in part, provided against by agreement of the parties. It is quite competent for them to stipulate that as between themselves payment to the holder of a particular document shall be a good discharge; but such a stipulation will neither affect the rights of intermediate as- signees nor enable the holder to compel payment without proving his title. Parties cannot set up a market overt for contractual rights. Remedy by special rules of law merchant. The complete solution of the 229] problem, for which the *ordinary law of contract is inadequate, is attained by the law merchant (?) in the following manner: — (i) The absolute benefit of the contract is attaclied to the owner- ship of the document which according to ordinary rules would be only evidence of the contract. (h) The evidence was conflicting, (k) Cp. S).! The usual vendor's covenants for title come under this head. It is doubtful whether a hona fide piirchaser from a purchaser who obtained his conveyance by fraud can in any circumstances sue on the former vendor's covenants for title (q) . s. The covenants entered into hy the owner. The burden of such covenants appears on the whole not to run with the land in any case at common law (r) ." But where a right or easement (fc) Jones v. Gibbons (1864) 9 ip) Contra Sugd. V. & P. 584-5, Ves. 407, 411, 7 R. R. 247; Maitlteivs but alone among modern writers. v. \t'aUicyn (1798) 4 Ves. 118, 126. The cases from the Year Books relied (?) These must be regarded as on by Lord St. Leonards (Pakcn- arising from contract (we do not ham's case, H. 42 E. III. 3, pi. 14; speak of rents or services incident Home's case, M. 2 H. IV. 6, pi. 25) to tenure) : the treatment of rent- seem to show only that it was once charges in English law as real rights thought doubtful whether the as- or incorporeal hereditaments seems signee could sue without being also arbitrary. For a real right is the Iteir of the original covenantee. See power of exercising some limited also O. W. Holmes, The Common part of the rights of ownership, and Law, 395. 404. is quite distinct from the right to {q) Onicard Building Society v. receive a fixed payment without the Smithson [1893] 1 Ch. 1, 15, 62 L. immediate pow^r of doing any act of J. Ch. 138^ C. A. ownership on the property on which (r) 3rd report of R. P. Commis- the payment is secured. sioners, in 1 Dav. Conv. Auster- {m) Boner v. Cooper (1842) 2 berry v. Corporation of Oldham Ha. 408. 11 L. J. Ch. 287. (1885) 29 Ch. Div. 750, 55 L. J. Ch. (h) 1 Wms. Saund. 303. 633: Farwell J. in Ropers v. Pose- (0) Taite V. Gosling (1879) 11 good [1900] 2 Ch. 388, 395; 69 L. J. Ch. D. 273, 48 L. J. Ch. 397. Ch. 59. 98 See supra, p. 281. 99 As to the rule in the United States see Sm. L. C. (Sth Am. ed.) I. 189. iSee Shaber r. St. Paul Water Co., 30 Minn. 179: Mvgatt v. Coe, 124 K Y. 229: Manderbach r. Bethanv Orphans' Home, 109 Pa. 231; Gulf, etc., Ry. Co. r. Smith. 72 Tex. 122. 2 " This doctrine has not usually been accepted in the United States. It has been held in many decisions in this Commonwealth and elsewhere, that at law the burden of a covenant mav run with the land. Savage v. ]\Iason, 3 Cush. 500; Bronson V. CofTin. 108 Mass. 175: Richardson r. Tobey, 121 Mass. 457; King V. Wight. 155 ^^lass. 444: Jov r. St. Louis. 138 U. S. 1 :' Fitch r. .Johnson. 104 111. Ill; Hazlett v. Sinclair. 76 Tnd. 488: Norfleet r. Cromwell. 64 K C. 1: Pomeroy Eq. Jur. 1295."' Whittenton Mfg. Co. ;•. Staples. 164 Mass. 319. 327. See as to the liability of purchasers, both at law and in equity. Ameri- can Strawboard Co. r. Haldeman Paper Co., 83 Fed. Rep. 619; Robbins v.. COVENANTS RUNNING WITH THE LAND. 301 affectin;^ land — such as a right to get minerals free from the ordinary ■duty of not letting down the surface — is granted subject to the duty of paying compensation for damage done to the land by the exercise of the *right, there the duty of paying compensation runs at law with the benefit [238 of the grant. Here, however, the correct view seems to be that the right itself is a qualified one — viz. to let down the surface, &c., paying com- pensation, and not otherwise (s). The burden is said to run with the land in equity(f) (subject to the limitation to be mentioned) in this sense, that a court of equity will en- force the covenant against assignees who have actual or constructive (m) notice of it; and when the covenant is for the benefit of other land (as in practice is commonly the case) the benefit generally though not always rvma with that other land. Explanation. Let us call the land on the use of which a restriction is imposed by covenant the quasi-servient tenement, and the land for Avhose benefit it is imposed the quasi-dominant tenement. Now, restrictive cove- nants may be entered into (1) By a vendor jis to the use of other land retained or simultaneously sold, for the benefit of the land sold by him : In this case the burden runs with the quasi-.servient tenement and the benefit also runs with the quasi-dominant tenement. (2) By a purchaser as to the use of the land purchased by him, for the benefit of other land retained or simultaneously sold by the vendor: In this case the burden runs Avith the quasi-servient tenement, and the benefit may run with the quasi-dominant tenement when such is the inten- tion of the parties, and especially when a portion of land is divided into several tenements and dealt with according to a prescribed plan (r).^ (s) Aspden v. Seddon (1876) 1 (1871) L. R. 11 Eq. 338, 40 L.J. Ch. Ex. Div. 496, 509, 46 L. J. Ex. 353. 294; Renals v. Cowlishaio (1878) 9 it) The phrase is not free from Ch. D. 125, 11 Ch. Div. 866, 48 L. J. objection: see per Rigbv L.J. [1900] Ch. 830: Spicer y. Martin (1888) 14 2 Ch. at p. 401. ' App. Ca. 12, 58 L. J. Ch. 309 : Rogers (w) Wilson V. Hart (1866) L. R. v. Hosegood, [1900] 2 Ch. 388. 69 1 Ch. 403; Patman v. Harland L. J. Ch. 652, C. A. [See also John (1881) 17 Ch. D. 353, 50 L. J. Ch. Brothers Co. v. Holmes [1900] 1 Ch. 642. 188; Hollowav r. Hill [1902] 2 Ch. (v) Keates v. Lyon, L. R. 4 Ch. 012; Osborne* v. Bradlev [1903] 2 218, 38 L. J. Ch. 357, and other cases Ch. 446: Formby v. Barker [1903] 2 there considered; Harrison v. Good Ch. 539.] Webb, 68 Ala. 393; Webb V. Bobbins, 77 Ala. 176; Railway Co. r. Gilmer. 85 Ala. 422; Fresno Canal Co. v. Dunbar, SO Cal. 530: Hottell'r. Farmers' Assoc, 25 Col. 67; Railroad Co. v. Reeves, 64 Ga. 492; Fitch v. Johnson. 104 111. Ill; Hazlett V. Sinclair. 76 Ind. 488; Railroad Co. v. Power, 15 Ind. App. 179; Savage v. Mason. 3 Cush. 500; Bronson r. Coffin, 108 .Mass. 175: Xoroross v. James, 140 Mass. 188; Whittenton :\Ifir. Co. v. Staples, 164 Mass. 319, 327; Burbank v. Pillsbury. 48 X. H. 475: Xve r. Hovle, 120 X^. Y. 195; Easter r. Railroad Co.. 14 Ohio St. 48: Huston r. Railroad Co.. 21 Ohio St. 235; Hickey r. Railway Co., 51 Ohio St. 40; Brov^n v. Railroad. 30 Oreg. 128; Landell v. Hamilton,' 175 Pa. 327: Doty r. Railway Co.. 103 Tenn. 564: Kellogg v. Robin- son, G Vt. 276; Wooliscroft r. Xorton, 15 Wis. 198; Hartung v. Witte, 59 Wis. 285: Crawford r. Witherbee. 77 Wis. 419. 3Robbins v. Webb, 68 Ala. 393; Willoughby r. Lawrence, 116 111. 11; Halle f. iSTewbold. 69 :Md. 265: Parker v. Xightingale, 6 Allen, 341; Whitney v. Rail- road Co.. 11 Gray. 3.59; Peck r. Conway.' 119 Mass. .546; Sharp r. Ropes, 110 Mass. 381: Payson r. Burnham, 141 Mass. 547 Ilamlen r. Werner, 144 Mass. 396: Hopkins r. Smith. 162 Mass. 444; Hills r. :\ret7eTirntb 173 Mass. 423; Burbank r. Pillsbury, 48 X. H. 475, 482: Winfield r. Henning, 21 N. J. Eq. 188; Kirkpatrick v. Peshine, 24 X. J. Eq. 206; Hayes v. Waverly, &c. Co., 302 PERSONS AFFECTED BY COXTRACT. All these rights and liabilities being purely equitable are like all other equitable rights and liabilities subject to the rule that purchase for value without notice is an absolute defence. An assign of a covenantee may be entitled to the benefit of the covenant without having known of it at the date of his purchase : the question is whether he required it as annexed to the land (x) . Further, this doctrine applies only to restrictive, not to affirmative cove- nants. Thus it does not apply to a covenant to repair. " Only such a covenant as can be complied with Avithout expenditure of money will be enforced against the assignee on the ground of notice " (t/) .4 239] * Further remarks: as to bills of lading. The only points which seem to call for more notice here are the doctrines as to bills of lading (I.) and restrictive covenants as to the use of land (li.e). As to (I.) it is to be borne in mind that bills of lading are not properly negotiable instruments, though they may be called so " in a limited sense as against stoppage in transitu only" (z).^ As far as the law merchant goes the bill of lading only represents the goods, and does not enable any one who gets it into his hands to give a better title than his own to a transferee; "the transfer of the symbol does not operate more than a transfer of what is represented" (a).^ (x) Rogers v. Hosegood, last note. Eicin (1887) 37 Ch. Div. 74, 57 L. J. iy) Lindley L. J. Haywood v. Ch. 95. Brunswick Building Society (1881) 8 {z) Per Willes J. Fuentes v. Mon- Q. B. Div. 403, 410. 51 L. J. Q. B. tis (1808) L. R. 3 C, P. at p. 276, 38 73; L. rf- .Sf. W. Ry. Co. v. Gomm, 20 L. J. C. P. 95. Ch. Div. 562, 51 L. J. Ch. 530: Aus- (a) Gurney v. Behrend (1854) S terberry v. Corporation of Oldham, E. & B. 622, 633, 23 L. J. Q. B. 265. note (v) , p. *237, above; Hall v. 51 N. J. Eq. 345: Cornish v. Wiessman, 56 N. J. Eq. 610; Koberts v. Scull, 58 N. J. Eq. 396; Barrow v. Richard, 8 Paige, 351; Gilbert r. Peteler, 38 X. Y. 165; Trustees v. Lvnch, 70 N. Y. 440; Phoenix Ins. Co. v. Continental Ins. Co.,. 87 N. Y. 400; Lew'is i\ GoUner, 129 N. Y. 227; Rowland v. Miller. 139 X. Y. 93: Stines r. Dorman, 25 Ohio St. 580; Shields r. Titus, 46 Ohio St. 528: St. Andrew's Church's Appeal, 67 Pa. 512; Muzzarelli v. Hulshizer, 163 Pa. 643; Green v. Crciohton, 7 R. I. 1; Lvdick v. Railroad Co.. 17 W. Va. 427. Cp. Clapp 1-. Vvildcr. 176 Mass. 332; Hazen v. Mathews, 184 [Mass. 388; American Unitarian Assoc, r. Jlinot. 185 Mass. 589: Hemslev c. Hotel Co., 62 N. J. Eq. 164, 63 X. J. Eq. 804; Equitable Assn r. Brennan,"l48 X. Y. 661. See further Ames, Cas. Eq. Jur. 149. n., 152, n., 162, n., 165, n., 180, n. ; 29 Am. L. Reg. 73; 17 Harv. L. Rev. 174. 4 The law seems otherwise in this covmtrv. Whittenton ]\Ifg. Co. r. Staples, 164 Mass. 319. 327: Burbank r. Pillsburv. 48 X. K. 475^ 482; Gould r. Partridge. 52 X. Y. App. Div. 40; Bald Eagle Valley R. Co. v. Xittanv Valley R. Co., 171 Pa. 284. 5 Munroe r. Philadelphia Warehouse Co., 75 Fed. Rep. 545 : Raleigh, etc., R. Co. r. Lowe, 101 Ga. 320: Knight v. Railway Co., 141 111. 110^^; Dows v. Perrin, 16 X. Y. 325. 6 Shaw r. Railroad Co., 101 U. S. 557, 565: Pollard r. Vinton, 105 V. S. 7: Friedlander v. Texas, &c. Ry. Co., 130 U. S. 416; Voss r. Robertson, 46 Ala. 483: Tison r. Howard, 57 Ga. 410: Railroad r. Live Stock Bank. 178 HI. 506; Anchor Mill Co. r. Railroad Co., 102 la. 262: Stollenwerck r. Thacher, 115 Mass. 224: Bank r. Bemis. 177 Ma«s. 95. 98: Bank r. El- liott. 83 Minn. 469: Hazard v. Railroad, 67 Miss. 32: Skilling r. Bollman, 6 ^lo. App. 76: Dows r. Perrin, 16 X. Y. 325: Bank of Batavia r. Railroad, 106 X. Y. 195: Emerv's «ons r. Bank. 25 Ohio St. 360. 368; Strauss v. Wessel, 30 Ohio St. 211; Empire Transportation Co. v. Steele, 70 Pa. 188. COVENANTS RUNNING WITH THE LAND. 303 And the whole effect of the statute is to attach the rights and lia- bilities of the shipper's contract not to the symbol, but to the property in the goods themselves (h) : the right to sue on the contract con- tained in the bill of lading is made to " follow the property in the goods therein specified; that is to say, the legal title to the goods as against the indorser " (c) J As to burden of covenants running with land. As to (II. e) the theory of the common law is to the following effect. The normal operation of a contract, as we have already had occasion to say, is to limit or cut short in some way the contracting party's control over his own actions. Among other kinds of actions the exercise of rights of ownership over a particular portion of property may be thus limited. So far then an owner "' may bind himself by covenant to allow any right he pleases over his property" (d) *or to deal with it in [240 any way not unlawful or against public policy (e). But if it be sought to annex such an obligation to the property itself, this is a manifest departure from the ordinary rules of contract. An obligation attached to property in this manner ceases to be only a burden on the freedom of the contracting party's individual action, and becomes prac- tically a burden on the freedom of ownership. Now the extent to which the law will recognize such burdens is already defined. Certain well- known kinds of permanent burdens are imposed by law, or may be imposed by the act of the owner, on the use of land, for the permanent benefit of other land: these, and these only, are recognized as being necessary for the ordinary convenience of mankind, and new kinds cannot be admitted. And this principle, it may be observed, is not peculiar to the law of England (/). Easements and other real right?? in re aliena cannot therefore be extended at the arbitrary discretion of private owners : " it is not competent for an owner of land to ren- (b) Fox V. 'Koit (18G1) 6 H. & (e) It is not unlawful for a land- N. G30, 636, 30 L. J. Ex. 259; owner to let all his land lie waste; Smurtlucaite v. Wilkins (1862) 11 but a covenant to do so would prob- C. B. N. S. 842, 850, 31 L. J. C. P. ablv be invalid. 214. if) Cp. Savigny. Obi. 1. 7; and (c) The Freedom, L. R. 3 P. C. for a singular coincidence in detail, 504, .^199. As to indorsement by way D. 8. 3. de serv. praed. rust. 5 § 1, of pledge, see Seicell v. Burdick 6 pr.=: Clai/ton v. Corhy (1843) 5 (1884) 10 App. Ca. 74, 103. Q. B. 415, 14 L. J. Q. B. 3G4. (d) Hill V. Tupper (1863) 2 H. & C. 121, 127, 32 L. J. Ex. 217. But see Pollard r. Eeardon. 65 Fed. Rep. 848: Ratzer v. Burlington, &c. Railway Co., 64 Minn. 245. See further 7 Yale L. J. 169, 219. 7 Under the reformed procedure the transferee of a bill of lading may bring an action thereon in his own name against the carrier. Bank v. Union R. & T. Co.. 69 N. Y. 373. 304 PEESONS AFFECTED BY CONTRACT. der it subject to a new species of burden at his fancy or caprice " {g).^ Still less is it allowable to create new kinds of tenure or to attach to property incidents hitherto unknown to the law. But if it is not convenient or allowable that these things should be done directly in the form of easements, neither is it convenient or allowable that they should be done indirectly in the form of obligations created by con- 241 ] tract but annexed to ownership. If the *burden of restrictive covenants is to run with land, people can practically create new ease- ments and new kinds of tenure to an indefinite extent. Such appears to be the view of legal policy on which the common law doctrine rests {h). Doctrine in equity. The lii story of the doctrine in the Court of Chancery is somewhat curious. Lord Brougham, in an elaborate judgment which seems to have been intended to settle the ques- tion (i), treated what we have called the common law theory as final, and, ignoring the difference between positive and negative covenants, broadly laid down that where a covenant does not run with the land at law, an assignee cannot be affected by notice of it. But this judg- ment, though treated as an authority in courts of law (k), has never been followed in courts of equity. After being disregarded in two reported cases (/) it was overruled by Lord Cottenham in Tulh v. Moxhay (m), now the leading case on the subject. The most im- (.9) Per Martin B. yuttall v. ( 1881 ) G App. Ca. 740. 50 L. J. Q. B. Braceicell (18G6) L. R. 2 Ex. 10, 36 689. L. J. Ex. 1; for the C. L. principles (h) See per Willes J. delivering generally, see Ackroyd v. Hmith the judgment of the Ex. Ch. in Den- (1850) 'lO C. B. 164, 19 L. J. C. P. nett v. Atherton (1872) L. R. 7 Q. 315; Bailey v. Stephens (1862) 12 B. 316, 325. C. B. N. S. 91, 31 L. J. C. P. 226. (t) Keppell v. Bailey (1834) 2 M. Rights of this kind are to be care- & K. 517, 527, 39 R. R. 264, 270; fully distinguished from those ere- and see the preface to that volume, ated hv grants in gross: .see per {k) Hill v. Tiipper (1863) 2 H. & Willes J. ih. 12 C. B. N. S. 111. The C. 121, 32 L. J. Ex. 217. Courts might have held that new (I) Whatman v. Gibson (1838) 9 negative easements might be created, Sim. 196, 47 R. R. 214; Mann v. but not positive ones, but this solu- Stephens (1846) 15 Sim. 377. tion does not seem to have ever been (m) (1848) 2 Ph. 774. See per proposed; and the whole subject of Fry J. in Luker v. Dennis (1877) 7 negative easements is still obscure, Ch. D. 227, at pp. 235, 236, 47 L. J. as is shown by the widely different Ch. 174. opinions held in Dalton V. Angus 8 Taylor r. Owen. 2 Blackf. 301; Xorcross v. James, 140 Mass. 188; TIauessler r. Missouri Iron Co.. 110 Mo. 188; Brewer r. Marshall. 19 N. J. Eq. 5.^7: Blount r. Harvev, 6 Jones L. 186, 190; Masurv v. Southworth, 9 Ohio St. 340. 348: Tardv'r. Creasv, 81 Va. 553: West Va. Transp. Co. v. Pipe Line Co.. 22 W. Va. 600. Cp'. Kettle River R. Co. v. Eastern Rv. Co., 41 Minn. 461: Huntington r. Asher. 96 X. Y. 604; Hodge V. Sloaia, 107 X. Y. 244. See further Ames, Caa. Eq. Jur. 186. RESTRICTIVE COVENANTS AS TO LAND. 305 portant of the recent cases are Keates v. Lyon (n) (where tiie au- thorities are collected), Haywood v. Brunswick Building Society (o), which explicitly decided that the rule applies only to negative cove- nants,® and Nottingham Brick Co. v. Butler (p). When a vendor sells land in building lots and takes restrictive covenants in identical terms from the several purchasers, not entering into any covenant himself, it is a question of fact whether these covenants are meant to operate for the protection of purchasers as *between themselves, or as [242 against the vendor in his dealings with parcels retained by him (q). Where such is the intention, any purchaser can enforce the restriction against any other purchaser, or his assigns having notice, or the vendor as the case may be, nor can the vendor release the covenant to any purchaser or his successors in title without the consent of all the rest (r). Foundation of the equitable doctrine. The result of the equitable doctrine is in practice to enable a great number and variety of restric- tions to be imposed on the use of land for an indefinite time, subject to the contingency of a purchase for value without notice of the restriction (s). But equity does not profess to enforce a restrictive covenant on a purchaser with notice as being a constructive party to the covenant ; it only restrains him from using the land in a manner which would be unconscientious as depriving the covenantee of his effectual remedy (t). So far as common law remedies go, covenants (n) (1869) L. R. 4 Ch. 218, 38 per Lord Macnaghten, approving the L. J. Ch. 357. statement of hall V.C. in Kenals v. (o) (1881) 8 Q. B. Div. 403, 51 Coiclishaic, 9 Ch. D. 125, 129. As to L. J. Q. B. 73. tlie effect of a purchaser of lots in (p) (1886) 16 Q. B. Div. 778. a building estate under a restrictive For the corresponding Scottish doc- scneme forming a " sub-scheme " by trine, see Hislop v. Leckie (1881) 6 re-selling portions under new condi- App. Ca. 560. tions, see Knight v. Simmo7is [1896] (7) Re Birmingham and District 2 Ch. 294, 65 L. J. Ch. 583, C. A. Land Co. v. Allday [1893] 1 Ch. (s) Where there has once been 342, 62 L. J. Ch. 90. As to what such a purchase, a subsequent pur- ia sufficient evidence of a " building chaser cannot be affected by notice, scheme," Tucker v. Vowlcs [1893] See per Lindley L.J. 16 Q. B. Div. at 1 Ch. 195, 62 L. J. Ch. 172. The p. 788. vendor's taking restrictive covenants (t) " I do not think any covenant and not reserving any part of the runs with the land in equity. The property is strong affirmative evi- equitable doctrine is that a person dence, but his reservation of part is who takes with notice of a covenant by no means conclusive the other is bound by it": Rigby L.J. Rogers way. V. Hosegood [1900] 2 Ch, 388, 401; (r) See Spicer v. Martin (1888) 12 69 L. J. Ch. 652, App. Ca. 12, 23, 58 L. J. Ch. 309, 9 See supra, p. 302, n. 4, 20 306 PERSONS AFFECTED BY CONTRACT. of this kind can be always or almost always evaded; if the equitable remedy by injunction were confined to the original covenantor, that also could be evaded by a collusive assignment. On this principle however an assign cannot be and is not made answerable for the active performance of his predecessor's covenant: he can only be expected not to prevent its performance. Hence the decisions to that effect 243] which have been *cited (w). The jurisdiction is a strictly per- sonal and restraining one. Xo rule of the law of contract is violated, for the assign with notice is not liable on the contract but on a dis- tinct equitable obligation in liis own person. Lord Brougham fell into the mistake of supposing that the covenant must be operative in equity, if at all, by way of giving effect to an intention to impose permanent burdens unknown to the law. Equity does not trouble itself to assist intentions which have no legal merits, and any such action, Lord Brougham rightly saw, was beyond its proper province. The law laid down in Keppell v. Bailey (x) was erroneous on this point, not from any defect of reasoning in the judgment, but because the reasoning proceeded on an erroneous assumption. Change of conditions. The true principle is further illustrated by the rule that even with notice an assign is not liable " where an alteration takes place through the acts or permission of the plaintiff or those under whom he claims, so that his enforcing his covenant becomes unreasonable" (y). Were the liability really on the covenant, noth- ing short of release or estoppel would avoid it. (u) See a note in L. Q. R. iv. 119 of a street having been destroyed by (not by the present writer) on Hall the elevated railway, the Court re- V. Eicin, 36 W. R. 84, 37 Ch. Div. 74, fused to enforce a covenant against 57 L. J. Ch. 05, where the doctrine is using the house for trade. [See also well explained. Everstein v. Gerstenberg, 186 111. (x) 2 M. & K. 57, 39 R. R. 264. 344; Duncan V. Central, &c. Railroad Other reasons with wliich we are not Co. 85 Ky. 525 ; Jackson v. Steven- concerned here were given; the actual son, 156 Mass. 496; Troup v. Lucas, decision was perhaps also right on the 54 X. J. Eq. 361; Amerman V. Dean, ground th.it the covenant in question 132 N. Y. 355; Orne r. Friedenberg, was not merely negative: see 39 R. R. i43 Pa. 48: Landell r. Hamilton, 175 264, n. Ra. 331. Cp. Reilly v. Otto, 108 (;/) Fry L.J. in l^aycrs v. Collyer Mich. 330. The right to relief was (1884) 28 Ch. Div. 103. 109. 52 L. J. held lost bv laches in Hemsley ■(,'. Ch. 770, explaining the limits of the Hotel Co. 62 X. J. Eq. 164, 63 X. J. rule as originally laid down in Duke Eq. 804 : Ocean City Assoc, r. Head- of Bedford v. 'Trustees of British lev. 62 X. J. Eq. 322. In McGuire r. Museum (1822). 2 M. & K. 552. 39 Caskey, 62 Ohio St. 419. the plaintiff R. R. 288. In New York this limita- had himsflf violated the covonant, tion seems not to be recognized: but as his violation was not substan- Trustees v. Thacher (1882) 87 I'-i. Y. tial the court granted relief.] 311, where, the residential amenity NECESSITY OF IXTERPEETATION. 3or * CHAPTER VI. Duties under Contract. [244 PAGE. 307 307 1. Interpretation generaJIi/, Necessity of interpretation, Agreements in writing: rule against parol variations, Apparent exceptions, Extrinsic evidence, Customs of the country, Trade usages, &c.. Construction : preference of general intention. Special rules of construction, 2. Order and Mutuality of Per- formance, Order of performance in ex- ecutory contracts, Modern authorities look to gen- eral intention of contract. Effect of default. Agreements presumed to be en- tire, 3. Default in first or other instal- ments of Discontinuous Per- formance, Sales for delivery by instal- ments, ^ Effect of default in instal- ments. Sale of Goods Act, 4. Repudiation of Contracts, A. Rescission, Restitution of money, land, chattels, &c., 334 Where no performance, 338 Repudiation or breach suf- ficient, 339 310 311 313 315 316 317 318 320 320 320 324 325 327 327 327 332 333 334 Election must be mani- fested, 345 Civil law and Indian Con- tract Act, 346 B. Action on the Contract, 347 Lord Cockburn's rule, 348 Inconsistent with American decisions, 348 True rule, 350 Contract not terminated, 351 Election need not be mani- fested, 353 Prospective inability to per- form, 354 C. Time When Right of Ac- tion Accrues, 355 Explanation of early de- cisions, 356 Hochster v. De la Tour, 359 Law in England and Amer- ica, 360 Distinction between defence and right of action, 301 Distinction between action for restitution and action on the contract, 362 No inconsistency in allow- ing full damages before all performance due, 362 Time of performance fixed by act of the other party, 363 Contracts to marry, 365 Practical convenience, 366 Illustrations of inconve- nience, 367 Measure of damages, 369 1. Interpreiation generally. Necessity of interpretation. We have now gone through the general and necessary elements of a contract, and shall hereafter consider the further causes which may annul or restrain its normal effect. 308 DUTIES UNDER CONTRACT. This work is not directly concerned with the rules of law which govern the construction, performance, and discharge of contracts. But we cannot apply the principles by which disputes as to the validity of an agreement have to be determined without first determining what tlie substance of the agreement is; and a dispute as to the original substance and force of a promise may often be resolved into a con- flict on the less fundamental question of what is a sufficient per- formance of a promise admitted to be binding. A summary view of the leading rules of interpretation may therefore be found useful at this stage. We suppose an agreement formed with all the positive requisites of a good contract; and we proceed to ascertain what are the specific duties created by this agreement. Measure of promisor's duty. If there be not any special cause of ex- ception, the promisor must fulfil the obligation which his own act has created. He must perform his promise according to its terms. Here there are two distinct elements of which either or both may be more or less difficult to ascertain : first the terms in which the promise was made, and then the true sense and effect of those terms. The former 245] rnust be determined by proof or admission, the latter by *inter- pretation, which, however, may have to take account of specific facts other than those by which the promise itself is established. We assume the terms to be reduced to a form in which the Court can understand them, as for example by translation from any language of which the Court does not assume judicial knowledge, or by ex- planation of terms of art in sciences other than the law. which is really a kind of translation out of the language of specialists. Expectation of promisee. The nature of a promise is to create an expectation in the person to whom it is made. And, if the promise be a legally binding one, he is entitled to have that expectation ful- filled by the promisor. It has, therefore, to be considered what the promisor did entitle the promisee to expect from him. Every ques- tion which can arise on the interpretation of a contract may be brought, in the last resort, under this general form. In order to ascertain what the promisee had a right to expect, we do not look merely to the words used. We must look to the state of things as known to and affecting the parties at the time of the promise, including their information and competence with regard to the matter in hand, and then see what expectation the promisor's words, as uttered in that state of things, would have created in the mind of a reasonable man in the promisee's place and with the same INTERPRETATION OF PROMISE. 300 means of jud^ent (a).^ The reasonable expectation thus determined gives us the legal effect of the promise. Reasonable effect of promise on promisee. Now this measure of the contents of the promise will be found to coincide, in the usual dealings of men of good faith and ordinary competence, both with the actual intention of the promisor and with the actual expec- tation of the promisee. But this is not a constant or a necessary coincidence. In exceptional cases a promisor may be *bound [246' to perform something which he did not intend to promise, or a promisee may not be entitled to require that performance which he understood to be promised to him. The problem has been dealt with by moralists as well as by lawyers. Paley's solution is well known, and has been quoted by text-writers and in Court (6) : "where the terms of promise admit of more senses than one, the promise is to be performed in that sense in which the promiser apprehended at the time that the promisee received it." But this does not exactly hit the mark. Eeflection shows that, without any supposition of fraud, Paley's rule might in peculiar cases (and only for such cases do we need a rule) give the promisee either too much or too little. And Archbishop Whately, a writer of great acuteness and precision within the limits he assigned to himself, perceived and corrected the defect : " Paley," he says, " is nearly but not entirely right in the rule he has here laid down .... Every assertion, or promise, or declaration of whatever kind, is to be interpreted on the principle that the right meaning of any expression is that which may be fairly presumed to be understood by it" (c). And such is the rule of jiidieial interpre- tation as laid down and used in our Courts. " In all deeds and instrimients " — and not less, when occasion arises, in the case of spoken words — " the language used by one party is to be construed in the sense in which it would be reasonably understood by the other" {d). All rules of construction may be said to be more or («) See per Blackburn J. Smith the purpose. Some modern civilians V. Hufihts (1871) L. R. 6 Q. B. 597, have said, with useless subtilty, that 607, 40 L. J. Q. B. 221; Birrell v. a promisor who has by his own fault Dryer (1884) 9 App. Ca. 345. caused the promisee to expect more (h) L. R. 6 Q. B. 600, 610. than was meant is bound " non ex (c) Paley, Moral Phil. bk. 3, pt. 1, vi promissionis sed ex damno per c. 5 ; Whately thereon in notes to ed. culpam dato." 1859. I am indebted to my learned (fZ) Blackburn J. in Fowkes v. friend Mr. A. V. Dicey for calling Manchester and London Assurance my attention to Whately's amend- Association (1863) 3 B. & S. 917, ment. Austin's attempt" (Jurispru- 929, 32 L. J. Q. B. 153, 159. dence, i. 450, ed. 1869) is nothing to 1 Mansfield f. Hodgdon, 147 Mass. 66. And see ante, p. 4. 310 DUTIES UXDER CONTRACT. less direct applications of this principle. Many rules of evidence 247] involve it, and in par*ticular its development in one special direction, extended from words to conduct, constitutes the law of estopi^el in pais, which under somewhat subtle and technical appear- ances is perhaps the most complete example of the power and flexi- bility of English jurisprudence. Agreements in writing: rule against parol variations. We have already seen that the terms of an offer or promise may be expressed in words written or spoken, or conveyed partly in words and partly by acts, or signified wholly by acts without any use of words (e). For the purposes of evidence, the most important distinction is not between express and tacit significations of intention, but between writing and all other modes of manifesting one's intent. The purpose of reducing agreements to writing is to declare the intention of the parties in a convenient and permanent form, and to preclude subsequent disputes as to what the terms of the agreement were. It would be contrary to general convenience, and in the great majority of cases to the actual intention of the parties at the time, if oral evidence were admitted to contradict the terms of a contract as expressed in writing by the parties. Interpretation has to deal not with conjectured but with manifest intent, and a supposed, intent which the parties have not included in their chosen and manifest form of expression cannot, save for exceptional causes, be regarded. Our law, therefore, does not admit evidence of an agreement by word of mouth against a written agreement in the same matter. The rule is not a technical one, and is quite independent of the peculiar qualities of a deed. " The law prohibits generally, if not universally, the introduction of parol evidence to add to a written agreement, whether respecting or not respecting land, or to vary it" (/). "If A. and B. make a contract in writing, evidence is not admissible to show that A. meant some- 248] thing different from what is stated in the *contract itself, and that B. at the time assented to it. If that sort of evidence were ad- mitted, every written document would be at the mercy of witnesses that might be called to swear amihing " (g).^ (e) P. *]1, above. L. J. Ex. 314. See also Hotson v. if) Martin v. Pycroft (1852) 2 Browne (1860) 9 C. B. N. S. 442, 30 D. M. & G. 78.5. 70.5, 22 L. J. Ch. 94. L. J. C. P. 106: Halhead v. Younq ig) Per Pollock C.B. ^'ichol v. (18.56) 6 E. & B. 312, 25 L. J. Q. B. Godts (1854) 10 Ex. 191, 194, 23 200. 2 Xorthcastern Rv. Co. r. Hastinsrs. [19001 A. C. 260: Blake r. Pine Moun- tain Co.. 76 Fed. Rep. 624; Codkin r. Monahan. S3 Fed. Rep. 116 (C. C. A.) ; Brewton v. Glass, 116 Ala. 629; Rector v. Bernaschina, 64 Ark. 650; Poole v. COXSTRUCTION ; PAROL VARIATIONS. 311 Rule of equity. Under normal conditions the same rule prevails in equity, and this in actions for specific performance as well as in other proceedings, and whether the alleged variation is made by a con- temporaneous (/i) or a subsequent (i) verbal agreement. "Varia- tions verbally agreed upon . . . are not sufficient to prevent the execution of a written agreement, the situation of the parties in all other respects remaining unaltered" (k). Similarh^ when a question arises as to the construction of a written instrument as it stands, parol evidence is not. admissible (and was always inadmissible in equity as well as at law) to show what was the intention of the parties. A vendor's express contract to make a good marketable title cannot be modified by parol evidence that the pur- chaser knew there were restrictive covenants (I). It is otherwise where it is sought to rectify the instrument *under the peculiar [249 equitable jurisdiction which will be described in a later chapter. And therefore the Court has in the same suit refused to look at the same evidence for the one purpose and taken it into account for the other (ni). Apparent exceptions at law and in equity. It is no real exception to this rule that though " evidence to vary the terms of an agreement in writing is not admissible," yet " evidence to show that there is not an {h) Omerod v. Hardman (1801) 5 being enforced, cannot operate as a Ves. 722, 730. Lord St. Leonards mere rescission of the former con- (V. & P. 163) says this cannot be tract; the ground being that there deemed a general rule: but see Hill is notliing to show any intention of V. Wilson, L. K. 8 Ch. 888 ; per Mel- the parties to rescind the first con- lish L.J. at p. 899, 42 L. J. Ch. 817. tract absolutely. (i) Price v. Dyer (1810) 17 Ves. (k) Price v. Dyer (1810) 17 Ves. 356, 11 R. R. 102: PoUnson v. Page at p. 364. 11 R. R. 107; Clmoes v. (1826) 3 Russ. 114, 121, 27 R. R. 26. Higpinson (1813) 1 Ves. & B. 524, But a subsequent waiver by parol, if 12 R. R. 284, where it was held (1) complete and unconditional, may be that evidence was not admissible to a good defence; ib.: Goman v. Salis- explain, contradict, or vary the 'bury, 1 Vern. 240; and cp. 6 Ves. written agreement, but (2) that the 337a, note. Qu, if not also at law, written agreement was too ambiguous if the contract be not under seal: to be enforced. see Dart V. & P. 1096. ISlohle v. (?) Cato v. Thompson (1882) 9 Ward (1867) L. R. 2 Ex. 135. does Q. B. Div. 616. In svich a case the not prove that a verbal waiver of a true intention may well be that the written agreement is no defence at vendor shall remove the defect. law, but only that a new verbal (m) Bradford v. Rumney (1862) agreement intended to supersede an 30 Beav. 431, cp. per Lindley L.J. 9 existing contract, but by reason of Q. B. Div. 620. the Statute of Frauds incapable of Mass. Plush Co., 171 ]Mass. 49; Harrison r. Howe, 109 Mich. 476; Long v. Perine, 41 W. Va. 314. Cp. Bogk v. Gassert, 149 U. S. 17; Patek v. Waples, (Mich.) 72 N. W. Rep. 995. 312 DUTIES UNDER CONTRACT. agreement at all is admissible," ^ as where the operation of a writing- as an agreement is conditional on the approval of a third person (/t) or on something to be done by the other party (o). "A written con- tract not under seal is not the contract itself, but only evidence — the record of the contract. When the parties have recorded their contract, the rule is that they cannot alter or vary it by parol evidence. They put on paper what is to bind them, and so make the written document conclusive evidence between them. But it is always open to the parties to show whether or not the written document is the binding record of the contract" (p). " The rules excluding parol evidence have no place in any inquiry in which the Court has not got tefore it some ascertained paper beyond question binding and of full effect" (q).^ It may even be shown that what appears to be a deed was delivered as an escrow, notwith- standing that a deed once fully delivered is conclusive (r). Still less does the rule apply to proof of the circumstances in which a docu- 250] ment was signed which was not really part of the *agreement at all, but only a memorandum made at the same time or immediately after (s). So in Jervis v. Ber ridge (t) it was held that a document purporting to be a written transfer of a contract for the purchase of lands " was . . . not a contract valid and operative between the parties but omit- ting (designedly or otherwise) some particular term which had been verbally agreed upon, but was a mere piece of machinery . . . sub- sidiary to and for the purposes of the verbal and only real agreement." And since the object of the suit was not to enforce the verbal agree- ment, nor " any hybrid agreement compounded of the written instru- (n) Pym v. Camphell (18.56) 6 E. (r) See ^Yatkit^s v. Nash (1875) & B. 370, 374. 25 L. J. Q. B. 277. L. R. 20 Eq. 262; Whelan v. Palmer (o) Pattle V. Honiibrook [1897] 1 (1888) 39 Ch. D. 648, 655, 57 L. J. Ch. 25, 66 L. J. Ch. 144. Ch. 784. (p) Per Bramwell B. Wake v. (s) Bank of Australasia v. Palmer Earrop (1861-2) 6 H. & X. at p. 775, [1897] A. C. 540, 66 L. J. P. C. 105, 30 L. J. Ex. at p. 277 ; op. Wace v. J. C. Allen (1888) 128 U. S. 590. (t) (1873) L. R. 8 Ch. 351, .359, iq) Guardhouse v. BlackTiurn 360, 42 L. J. Ch. 518; Cla/rke v. (1866) L. R. 1 P. & D. 109, 115. 35 flrant (1807) 14 Ves. 519, 9 R. R. L. J. P. 116. And see per Page Wood 336, appears really to belong to this- V.-C. in Druiff v. Lord Parker (1868) class. L. R. 5 Eq. 131, 137, 37 L. J. Ch. 241. 3 Ware r. Allen. 128 U. S. 590: Vierling v. Iroquois Furnace Co.. 170 111. 189: O'Donnell r. Clinton, 145 Mass. 461: Adams r. Morgan, 150 Mass. 148; Griorson r. Mason. 60 N. Y. 394; Reynolds v. Robinson, 110 X. Y. 654; Heeter r. Glasgow, 79 Pa. 79. 4 See Greenleaf on Evidence n6th ed.), I, § 305a et seq. construction; extrinsic evidence. 313 ment and some terms omitted therefrom," but only to prevent the defendant from using the written document in a manner inconsistent with the real agreement, there was no difficulty raised by the Statute of Frauds, " which does not make any signed instrument a valid contract by reason of the signature, if it is not such according to the good faith and real intention of the parties." If it appears that a document signed by the parties, and apparently being the record of a contract, was not in fact intended to operate as a contract, then " wliethcr the signature is or is not the result of a mistake is imma- terial " (u). Collateral parol agreements. Again it has been held, and that by Courts of common law not having equity jurisdiction, that even where there is an agreement by deed a collateral agreement not inconsistent with the written terms may be shown.^ For such a collateral agree- ment, moreover, the promisee's execution of the principal writing or deed is consideration *enough (x), in the same way as on a [251 sale of goods no distinct consideration is required for a simultaneous collateral warranty. Evidence to explain particular terms. Another class of cases in which an apparent, or sometimes, perhaps, a real exception occurs, is that in which external evidence is admitted to explain the meaning in which particular terms in a contract were understood by the parties, having regard to the language current in that neighbourhood or among persons dealing in that kind of business. Witnesses have been allowed, in this way, to prove that by local custom " a thousand " of rabbits was 1,200 (i. e., ten long hundreds of six score each, the old "Anglicus numerus " of Anglo-Xorman surveys) (;/) ; to show what was meant by "weekly accounts" among builders (2) ; to define («) Per Bramwell B. Rogers v. L. J. Ex. 46 (agreement bv lessor to Hadlexj (1863) 2 H. & C. 227. 249, 32 keep do\ra rabbits) ; Angell v. Duke L. J. Ex. 241. In this case there (1875) L. E. 10 Q. B. 174 (agree- was " a real contract not in writing ment to do repairs and send in fur- and a paper prepared in order to niture) ; see [1001] 2 K B. at comply with some form, which was j). 223; Dc Lassallc v. (Imhlford stated' at the time to contain a [1901] 2 K. B. 215, 70 L. J. K. B. merely nominal price." Cp. Bank of 533, C. A. (warranty of drains in Australasia v. Palmer, note (s), good order). above. (y) Smith v. Wilson (1832) 3 B. (x) Erskine v. Adeane (1873) L. R. & Ad. 728. 37 R. R. 536. 8 Ch. 756, 42 L. J. Ch. 835: Morqan {z) Myers v. Sari (1860) 3 E. & E. V. Grifjfith (1871) L. R. 6 Ex. 70, 40 306, 30 L. J. Q. B. 9. 5 See Greenleaf on Evidence (16th ed.), I. §§ 281, 282, 305/. 314 DUTIES UXDER COXTRACT. "year," in a theatrical contract to pay a weekly salary for three years, as meaning only the part of the year during which the theatre was open (a) ; to identify the wool described as " your wool " in a contract to buy wool (h).^ Not contradictory but auxiliary to the writing. The theory is that such evidence is admitted " not to contradict a document, but to explain the words used in it, supply, as it were, the mercantile dictionary in which you are to find the mercantile meaning of the words which are used " (c) (or other meaning received by persons in the condition of the parties, as the case may be). The process may be regarded as an extension of the general rule that words shall have their primary meaning. For when words are used by persons accustomed to use 252] tlicm technically, *the technical meaning is for those persons at any rate the primary meaning (d). It is a question not of adding or altering, but of identifying the subject-matter. " Suppose that I sell ' all my wool which I have on Dale Farm,' evidence must always be admissil)le to show that the wool which was delivered was the wool on Dale Farm" (e). The terms thus explained need not be ambigu- ous on their face (/). Parol evidence is equally admissible to explain words in themselves ambiguous or obscure and to show, as in the case of " a thousand of rabbits," that common words were used in a special sense. " The duty of the Court . . . is to give effect to the intention of the parties. ... It has always been held . . . that where the terms in the particular contract have, besides their ordi- nary and popular sense, also a scientific or peculiar meaning, the parties who have drawn u]) the contract with reference to that par- ticular department of trade or business must fairly be taken to have intended that the words should be used not in their ordinary but in their peculiar sense" (g). This kind of special interpretation must be kept distinct from the general power of the Court to arrive at the true construction of a (a) Grant v. 2Iaddox (1846) 15 Limits of Rules of Construction," M. & W. 737, 16 L. J. Ex. 227. L. Q. R. i. 466. (h) Macdotiald v. Longbottom, Ex. (e) Erie J. in Macdonald v. Long- Ch. 1859-GO, 1 E. & E. 977, 28 L. J. hoiiom (1859-60) 28 L. J. Q. B. at Q. B. 29.3, 29 ih. 256. p. 297: cp. Bank of Neio Zealand v. (c) Lord Cairns, Boices v. ^hand Bimpson [1900] A. C. 182, 69 L. J. (1877) 2 App. Ca. 455. 468. P. C. 22. J. C. (d) See Elphinstone, Norton and (f) See the judgrnent of Black- Clark on Interpretation, 48, 57 ; and bum J. in Myers v. Barl. above. Sir Howard Elphinstone on "The (g) Cockburn C.J. in J/ t/ers v. >Sari (18'60) 30 L. J. Q. B. at p. 12. 6 See Greenleaf on Evidence (16th ed.), I. § 305i. I]Sr1:ERPRETATI0X ; CUSTOMARY TERMS. 315 contract by taking account of the material facts and circumstances proved or judicially known. The words "warranted no St. Law- rence " in a time policy of marine insurance have been decided, by reason of the known facts of geography and the nature and risks of the navigation, to include the Gulf of St. Lawrence as well as the river, notwithstanding the failure of an attempt to prove that such was the customary meaning (h). In another modern case the Court found *no difficulty in holding that, in the circumstances of [253 the transaction, a guaranty for the price of goods to be supplied, definite as to the amount but otherwise loosely worded, must be read as a continuing guaranty and not as a guaranty confined to a single sale then about to be made (l). Incorporation of customary terms by parol evidence. The Courts have taken yet a further step in this line of interpretation by reference to unexpressed matter. Xot only particular terms may be explained, but whole new terms (provided they be not inconsistent with the terms actually expressed in writing) may be added by proving those terms to be an accustomed part of such contracts, made between such per- sons, as the Court has before it.'^ Custom, when the word is used in these cases, does not necessarily imply either antiquity or universality or any definite local range. It is merely a usage so general and well understood in fact, with reference to the business, place, and class of persons, that the parties are presumed to have made their contract with tacit reference to it, and to have intended to be governed by it in the same way and to the same extent as other like persons in like cases. The Court may act, it seems, on a proved change of usage within recent memory (1-). It might perhaps be better not to use in this connexion the word " custom," which has a perfectly distinct meaning in the law of tenure and rights over land, or at least to speak by preference of " usage," except where the phrase " custom of trade " has become too familiar to be easily dropped. It would take us too far to enlarge upon this class of cases ; it must suffice to indicate them and refer to a few leading authorities. (h) Birrell X. Dryer (1884) 9 App. (i) Heffleld v. Meadows (1869) Ca. 345. In Johnson v. Rat/Iton L. R. 4 C. P. 595. (1881) 7 Q. B. Div. 438, 50 L. J. {k) See per Channell J. in Moult Q. B. 753, an implied warranty v. Halliday [1898] 1 Q. B. at p. 130. alleged to be customary was decided to be part of the general law. 7 See Greenleaf on Evidence (16th ed.), I. § 292 et seq. 316 DUTIES UNDER CONTRACT. Customs of the country. Eights allowed to agricultural tenants by 254] the " custom *of the country/' such as to take the away-going crop after the expiration of the term, to receive compensation for particular kinds of improvement, and the like, have been held for more than a century (l) not to be excluded by anything short of actual contradiction in the terms expressed between the parties, and this even where the contract is under seal. In recent cases of this class (m) the question has generally been whether something in the express terms was or was not so inconsistent with the usage as to exclude the presumption that " the parties did not mean to express in writing the whole of the contract by which they intended to be bound, but to contract with reference to those known usages" (n). Customs of trade, &c. In the present century there have been a great number of decisions arising out of the usages current in trades and in various kinds of mercantile dealings and public employments. One strong application of the principle now before us has been to make agents or brokers in certain trades and markets personally liable (unconditionally or in some particular event) notwithstanding that they contracted only as agents (o). This has been thought to go too far, as adding to the written contract not merely a new term as between the same parties, but a new party. But the point is settled by an unbroken current of authority (p). Some important groups of cases have turned on particular rules and usages of the Stock Ex- change, with regard especially to the determination of the persons on whom they were binding without individual assent or notice (q). 255] As it is not always easy to say where the ordinary *construc- tion of the language used in affairs ends, and explanation of special terms and senses by a " mercantile dictionary " as Ijord Cairns called it (r), begins, so there is a more or less fluctuating boundary line, even now that the law merchant is part of the general law, between the establishment, by evidence of usage, of particular incidents of particular mercantile contracts, and the general development of mercantile law by the judicial recognition of universal custom. {!) The earliest case commonly rpn, 1 M. & W. 4GG, 475. 46 R. R. 368, cited is Wigglesicorth V. DalUson 377. (1778-81) DoujtI. 201, 1 Sm. L. C. (o) Humfrey \. Dale (1857) E. B. 528, where see the notes. & E. 1004, 26 L. J. Q. B. 137. and (rti) As in Tucker v. Linger (1883) other cases cited p. *101, above. 8 App. Ca. 508. 52 L. J. Ch. 941. (p) See 1 Sm. L. C. 543—545. See per Lord Blackburn, 8 App. Ca. (er Lord Mansfield, 3 counterpart, Bio-c/ie/i v. CiarA- ( 1876) Burr. 1635, and Doe d. Leach v. 2 C. P. Div. 88, 46 L. J. C. P. 115. Micklem (1805) 6 East, 486; Lord Sometimes it is not easy to decide St. Leonards, Wilson v. Wilson whether the doctrine of falsa, demon- (1854) 5 H. L. C. 40, 66, 23 L. J. Ch. stratio suffices, or recourse must be '697. Sugd. V. & P. 171. had to the equitable jurisdiction to {x) bee Shepp. Touchst. 55, 87, rectify an instrument on the ground •369. of common mi.stake (Ch. IX. pt. iii. iy) Cropton V. Davies (1869) L. R. below): see Cowen v. Truefitt, Ltd. 4 C. P. 159. 38 L. J. C. P. 159; [1899] 2 Ch. 309, 68 L. J. Ch. 563, Savage v. Tyeis (1872) L. R. 7 Ch. C. A. .356; DanieVs Settlement (1875) 1 318 DUTIES UNDER CONTRACT. they were even one or two generations ago. " They were framed with a view to general results, but are sometimes j^roductive of injustice by leading to results contrary to the intention of the parties" (z) ; and the recent tendency is to i^ay less attention to any such rules and more to all admissible indications of what the intention actually was in the case in hand, including the practical construction of the con- tract by the conduct of the parties themselves (a). It will be re- membered that a rule which does not yield to sufficient evidence of contrary intention is not a rule of construction at all, but a rule of law {h). Again, many rules of construction are in truth more auxil- iary than explanatory; their purpose is to supply the guidance required for dealing with events for which the parties have omitted to provide. In the language of Willes J. "disputes arise not as to tlie terms of the contract, but as to their application to unforeseen 257] questions which arise inci*dentally or accidentally in the course of performance, and which the contract does not answer in terms, yet which are within the sphere of the relation established thereby, and cannot be decided as between strangers " (c). The parties may really have taken no thought, and therefore had no inten- tion at all with respect to those events, and yet something must be done. In such cases any rule not inconsistent with justice is better than uncertainty, and it matters little whether the reasons originally assigned for an estal^lished rule be convincing or not. Among rules or maxims of construction some are much weaker than others, and are entitled, as it were, only to a casting vote. Such is that which says that words are to be taken, in case of doubt, against the person using them; a maxim to which Sir G. Jessel denied even a subsidiary value (d), but which is in substance classical (e) and seems reason- able, and on the whole stands approved on condition of being used to turn the scale where there is real doubt, not to force a less natural meaning on words which have a more natural one (/). Artificial rules originally paramount to intention. There are artificial rules of construction in particular cases which stand apart from the {z) Cockburn C.J. 2 C. P. Div. at (e) Papinian in D. 2, 14, de pac- p. 93. tis, 39. Veteribus placet pactionem (a) See D. C. v. Gallahcr (1888) obscuram vel rmbiguam venditori. et 124 U. S. 505. qui locavit, nocere, in quorum fuit (b) F. V. Hawkins on the Con- jiotestate Icirem apertius conscribere. struction of Wills.. Preface. (f) Elphinstone. Norton and Clark, (c) Uoyd V. Guihert (1865) (Ex. op. cit. 93. Lord Selbome in Xdll Ch.) L. R. 1 Q. B. 115, 120, 35 L. J. v. Duke of Deronshire (1882) 8 App. Q. B. 74. Ca. at p. 149, states it in a guarded (d) Tdj/Jor V. Corporation of St. form. Helens (1877) G Ch. Div. 264, 270. SPECIAL RULES OF COXSTRUCTION. 319 ordinary principles ; they arc derived chiefly, but not wholly, from the jurisdiction of the Court of Chancery, and in their origin did not pro- fess to be consistent with the expressed intention of the parties. To some extent they went upon a })resumed real intention, but the pre- sumption was at least as much of what the Court thought the parties ought to have intended as of what it thought they did intend (g). They were in truth rules of positive restriction, imposed by a *policy wJiich was then in the hands of the judges, but is now [258 held to be in the exclusive competence of the Legislature, and for the purpose of making the substance of the transaction conform to the requirements of fair dealing, as understood by the Court. Our Courts have long ceased to dictate to parties of full age and with the means of independent judgment on what terms they shall contract, but certain forms and terms have had an artificial meaning firmly im- pressed on them. The modern justification of such rules is that they are well known, and parties using the accustomed forms do in fact know and expect that their words will be construed in that sense which, by the standing practice of the Courts, has become a received and settled technical sense. " If cases have laid down a rule that in certain events words are to have a particular meaning, and that has become a settled rule, it may be assumed that persons in framing their agreements have had regard to settled law and may have purposely used words which, though on the face of them the_Y may have a different meaning, they know, by reason of the decided cases, must bear a particular or special meaning" (//)• Parties are now presumed to adopt the artificial sense. Policies of ma- rine insurance are to this day made in i form which on the face of it is clumsy, imperfect, and obscure. But the effect of every clause and almost every word has been settled by a series of decisions, and the common form really implies a whole body of judicial rules, "which originated either in decisions of the Courts upon the con- struction or on the mode of applying the policy, or in customs proved before the Courts so clearly or so often as to have been long recog- nized by the Courts without further proof. Since those decisions, and the recognition of those customs, merchants and underwriters have for many years continued to enter into policies in the same *form. According to ordinary principle, then, the later [259 ig) Cp. Lindley L.J. 21 Ch. Div. (7)) Jessel IM. R. ^yaU^s v. f^mith at p. 274. (1882) 21 Ch. Div. 243, 254, 52 L. J. Ch, 145. ^20 DUTIES UNDER CONTRACT. policies must be held to have been entered into upon the basis of those decisions and customs. If so, the rules determined by those deci- sions and customs are part of the contract " (i). The rules applied to restrain the effect of releases in general terms, of stipulations as to time, and of penal clauses, had a different origin, but have been brought round to rest on similar reasons. They are now admitted to be rules of construction which the parties can super- sede, if so minded, by the adequate expression of a different intention. Still, they preserve traces of their history, and so lead up to the methods by which equity jurisdiction has dealt, and still deals, with, cases of real mistake in expressing an agreement; and in that con- nexion we shall find it useful to return to them. 2. Order and Mutuality of Performance. Order of performance in executory contracts. When a contract consists in mutual promises which on one or both sides are not to be com- pletely performed at one time, and a party who has not performed the whole of his own obligation complains of a failure on the other side, questions arise which may be of great difficulty. How far is the plaintiff bound to show performance of the contract on his own part, or readiness and willingness to perform ? Or, to look at it from the other side, how far will a failure of one party to fulfil some part of his duties under the contract have the effect of discharging the other party from further performance or the offer thereof on his part? Such cases have been of increasing frequency and importance in recent times, especially with regard to contracts for delivery and payment by instalments. To a certain extent the difficulty is one of interpretation, for the modern decisions at any rate endeavour 260] to find a solution *in accordance with the true intent of the parties, although the difficulty is much increased by the general want of any specific evidence of that intent. Most contracts are originally made in good faith, and the parties do not necessarily, perhaps they do not usually, expect that all or any of the promises contained in the contract will be broken, or contemplate in any distinct way what will be the consequences of a breach. The modern authorities look to intention of contract as a whole. From Lord Mansfield's time to the present attempts have been made to lav down rules for determining, in the absence of express provisions (i) Cur. per Brett L..J. Lohre v. Aitchison (1878) 3 Q. B. Div. 558, 562. DEPENDENT AND INDEPENDENT PROMISES. 321 or other clear indication of intent (A-), the relation of the one party's obligation to the other as regards the order of performance of mutual promises and the extent to which either is bound to accept perform- ance of part, notwithstanding failure to perform other part. In- the earlier decisions the Courts inclined to treat the several terms of a contract, unless expressed to be dependent on the other party's performance (I), as separate and independent promises, paying little regard to the elfect which default in some or one of them might produce in defeating the purpose of the contract as a whole. At this day the tendency is the other way. The Court looks to the pur- pose and effect of the contract as a whole as a guide to the probable intention of the parties (m), and the presumption, if any there be, is that breach or default in any material term of a contract between men of business amounts to default in the whole. Common terms. Certain terms which constantly recur in the au- thorities must be well understood and distinguished. Promises or covenants are said to be independent when, although they be mutual, breach of any of them gives the other party a right of action without showing performance on his own part (n). *They are said to be dependent where "the performance of [261 one depends on the prior performance of another, and, therefore, till this prior condition is performed, the other party is not liable to an action on his covenant." Where one party cannot sue for breach of the other's promise without showing on his own part performance of some promise made by himself, or at least readiness and willingness to perform it, there, if the performance on his part was due before the other party's, it is said to be a condition precedent to his right of action (o). If the fulfilment of mutual promises is due at the same time, and so that the party suing must be at least ready and willing to perform his part, it may be said that these are concurrent conditions. "jSTeither is a condition precedent," but " the performance of each is conditional upon the other's being performed at the same time" {p). A contract which can be fulfilled only as a whole, so that failure (7v) Cp. Leake, 3rd ed. 566. and (n) Lord Mansfield in Kingston the chapter on "The Promise" gen- v. Preston (1773) cited in Jones v, erally. Backlexj, Doug. 689; Finch, Sel. Ca. (I) 15 H. VII. 10, pi. 17. 735. (m) Bradford v. Williams (1872) (o) ^ee Bankart \. Bowers (1866) L. R. 7 Ex. 259. 41 L. J. Ex. 259, L. R. 1 C. P. 484: Norrington v. see judgment of Martin B. Wright (1885) 115 U. S. 189. (p) Langdell, Summary, § 132. 21 322 DUTIES UNDER CONTExiCT. in any part is failure in the whole, is said to be entire. A contract of which the performance can be separated, so that failure in one part affects the parties' rights as to that part only, is said to be divisible. It must always be understood that quesions of this kind are possible only where a contract consists of mutual promises. For if perform- ance itself is the consideration for a promise, there is no contract at all without performance. But when there is a contract made by mutual promises, we may have to enquire wdiether, in addition to each promise or set of promises being the consideration for the other, the performance thereof on the one side is not a condition, precedent or concurrent, of the right to claim performance on the other. There is. no logical reason why it should not be so, or why express words should 262] be required to manifest an intention that it should. *Each. party's promise is the consideration for the promise of the other, not for the performance w'hich is due by reason of the promise. What are the terms and conditions of the duty created by the promise is another matter. In an executory contract of sale the promise to deliver is the consideration for the promise to pay; but this need not be a promise to pay before or without delivery. However, the earlier line of decision w^as biassed by rules laid down in cases on promises by deed before the law of executory simple contracts was developed; and for a long time it was supposed that promises which were the consideration for each other must, as a matter of law,, be independent (q). Late in the eighteenth century this view was abandoned, and it was held that " whether covenants be or be not independent of each other must depend on the good sense of the case, and on the order in which the several things are to be done," so that " if one party covenant to do one thing in consideration (r) of the other partr's doing another, each must be ready to perform his part of the contract at the time he charges the other with non-perform- ance" (s). Order of performance. Grcnerally " the order in which the several things are to be done" is the test most readily applicable (t) ; ac- iq) See Langdell, § 140, and the But if the substance of the promises whole title of " Dependent and Inde- is that performance shall be ex- pendent Covenants and Promises." changed for performance, neither and notes to Pordage v. Cole, 1 Wms. party can demand performance on Saund. 549. any other terms. (r) The word "consideration" is is) Morton y. Lamb (1797) 7 T. R. here used in an elliptical manner, 125. 4 R. R. 395, per Lord Kenyon and not quite accurately. The prom- C.J. and Grose J. ises are the consideration, and the (f) Cp. Clark Hare on Contracts, only consideration, for each other. 589. ORDER OF PERFORMANCE. 323 cordingly it is said that " if a day be appointed for payment of money, or part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money (or otlier act) is to be performed, an action may be brought for the money (or for not doing such other act) before performance" (u). But *this is really no more than a rule [263 of interpretation ; it " only professes to give the result of the intention of the parties " (x) ; the reason given for it is that " it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent." Therefore the rule, like all rules of its kind, must yield to evidence of a different intention, and " where it is clear that the intention was to rely on the per- formance of the condition and not on the remedy, the performance is a condition precedent" (x).^ (m) Wms. Saimd. 551: Jervis C.J. (a?) Jervis C.J. loc. cit. in Roberts v. Brett (1856) 18 C. B. 373, 25 L. J. C. P. 280, 286. 8 Though the rules excusing or refusing to excuse one party to a bilateral contract because of the failure of the other party to perform are customarily dealt with as rules of construction or interpretation, and unquestionably found a place in our law on the theory that the question was one of con- struction, it is probable that a final analysis will disclose a deeper basis. Doubtless either party to a contract may expressly make performance of his promise conditional on the precedent or concurrent performance of the other party, and whether he has done so in a given case is a question of interpre- tation, but even though nothing is said in the contract which justifies the inference that the parties intended such a condition, the substantial de- fault of one partv, nevertheless, in general excuses the other. There are a few classes of cases which test the reasoning upon which the innocent promisor is excused. Suppose A by the terms of the contract is to perform on January 1 and B on February I. According to the rule of construction as usually stated A's liability to perform is absolute and B's is conditional. No doubt during January A can be sued by B without performance or tender by B. But if, either before January 1 or later, B is disabled from per- forming his promise A is excused from performing his promise, if he has not alreadv done so. Ex parte Chalmers. L. R. 8 Ch. 289; Bloomer v. Bernstein, "L. R. 9 C. P. 588; Morgan r. Bain. L. R. 10 C. P. 15; Mess v. DulTus, 6 Comni. Cas. 165; Re Phenix Bessemer Steel Co., 4 Ch. D. 108; Robinson r. Davenport, 27 Ala. 574; Brassel v. Troxel, 68 III. App. 131; Rappleye v. Racine Seeder Co., 79 Iowa, 220; Hobbs r. Columbia Falls Co., 157 Mass. 109; Lennox v. Murphy, 171 Mass. 370, 373; Pardee v. Kanady, 100 N. Y. 121; Vandegrift v. Cowles Engineering Co., 101 N. Y. 435; Diem V. Koblitz, 49 Ohio St. 41; Dougherty Bros. v. Central Bank, 93 Pa. 227; Lancaster Bank r. Huver, 114 Pa. 216. See also Sale of Goods Act, §§ 18, 41. Cp. Ex parte Pollard, 2 Low, 411; Stokes r. Baar, 18 Fla. 656; Chemical Nat. Bank v. World's Fair Exposition, 170 111. 82; C. F. Jewett Pub. Co. v. Butler, 159 Mass. 517; Bank Commissioners i". New Hampshire Trust Co., 69 N. H. 621. In these cases B's disability was due to insolvency. In the following cases his disability was due to a voluntary transfer to a third person of the property to which the contract related. Such a transfer was held an excuse in Fort Payne Co. c. Webster, 1G3 Mass. 134; Meyers v. Markham, 90 32-1 DUTIES UXDER COXTRACT, Total or partial default. Another test often applied is whether the term of the contract in which default has been made " goes to the whole of the consideration," or only to part; in other words, whether the importance of that term Avith regard to the contract as a whole is or is not such that performance of the residue would be, not a defective performance of that Avhich was contracted for, but a total failure to perform it. Can it be said that the promisee gets what he bargained for, with some shortcoming for which damages will compensate him? or is the point of failure so vital that his expecta- tion is in substance defeated? The necessity of dealing with this Minn. 230; James v. Burchell, 82 X. Y, 108; Brodhead v. Reinbold, 200 Pa. 618. See also Leonard v. Bates, 1 Blackf. 172; Russ Lumber Co. r. Muscupiabe Co., 120 Cal. 521. Garberino v. Roberts, 109 Cal. 12.5; Webb v. Stephenson, 11 Wash. 342, are decided otherwise on the ground that the property might be regained by B in time for the performance of the contract. See also Joyce v. Shafer, 97 Cal. 335; Shively v. Semi-Tropic, etc., Co., 99 Cal. 259. The result is the same if B repudiates his obligation before A performs. See infra, p. 3.50. A's liability then is not strictly absolute. Even though B is not disabled and does not repudiate his promise but simply fails to sue A until after February 1 many cases hold that B must tender performance in order to main- tain his action. ' Hill v. Grigsby, 35 Cal. 656 ; McCroskey v. Ladd, 96 Cal. 455 ; Irwin v. Lee, .34 Ind. 319; Soper r. Gabe, 55 Kan. 646; Brentnall v. Marshall, 10 Kan. App. 488: Beecher v. Conradt, 13 X. Y. 108; Eddy v. Davis, 116 X. Y. 247; Shellv r. Mikkelson, 5 X. Dak. 22; Boyd v. McCullough, 137 Pa. 7, 16; First Xat.' Bank v. Spear, 12 S. Dak. 108; Hogan v. Kyle, 7 Wash. 595. See also McElwee v. Bridgeport Land Co., 54 Fed. Rep. 627 (C. C. A.) But see contra. Weaver v. Childress, 3 Stew. (Ala.) 361; Hays v. Hall, 4 Port. 374, 387; White v. Beard. 5 Port. 94, 100; Duncan r. Charles, 5 111. 561; Sheeran r. Moses, 84 III. 448; Gray v. Meek, 199 111. 136, 139; Alien V. Sanders, 7 B. Mon. 59.?; Coleman v. Rowe, 6 Miss. 460; Clopton v. Bolton, 23 Miss. 78; McMath v. Johnson, 41 Miss. 439; Bowen r. Bailey, 43 Miss. 405; Biddle v. Coryell, 3 Har. (X. J. L.) 377. See also Loud r. Pomona Land Co., 153 U. S. 564, 580; Bean r. Atwater, 4 Conn. 3; White v. Atkins, 8 Cush. 307; Kettle v. Harvey, 21 Vt. 301. In regard to sales of personal property the English Sale of Goods Act provides: "Sec. 41, (1) Subject to the provisions of this Act, the rmpaid seller of goods w^ho is in possession of tliem is entitled to retain possession of them until payment or tender of the price in the following cases, namely: — " (6) Where the goods have been sold on credit, but the term of credit has expired." See further, Chalmers, .Sale of Goods Act (5th ed.), 82; Mechem on Sales, § 1521. The explanation of these decisions, and the true basis of the rule excusing one party to a contract on accoimt of the default of the other whenever the contract itself does not provide for such excuse is to be found in the fact that parties to a bilateral contract save in exceptional cases ahvays con- template that the performance on one side is the exchange or price for the performance on the other, and it is inequitable that either party should be required to perform on his side not only when he has not received but ■when he is not going to receive performance from the other party. This e of Good Hope, 429. Cp. Savage v. Canning, Tr. R. 1 C. L. 434. 61 Thus, one who has sold goods to another, who has agreed to give a bill or note made by himself payable at a future day and who has failed to do so, cannot, it is generally held, recover in indebitatvs assumpsit the value of the goods delivered until the stipulated period of credit has expired. Mussen r. Price, 4 East, 147; Dutton r. Solomonson, 3 B. & P. 582; Manton r. Gam- mon, 7 111. App. 201 (cp. Dunsworth v. Wood Machine Co.. 29 111. App. 23) ; Carson r. Allen, 6 Dana, 395; Hanna r. Mills, 21 W^end. 90. Yet the failure to give the promised bill or note is surely a material breach. And so it was held in Stocksdale v. Schuyler, 29 N. Y. St. Repr. 380; affd., 130 N. Y. 674). See also Tyson v. Doe, 15 *Vt. 571; Jaquith v. Adams, 60 Vt. 392. If a bill or note signed by a third person should have been given, the con- tract may be rescinded and action brought at once. Again, it has been held that a plaintiff cannot recover the money value of goods or services given to the defendant if by the contract he was to receive not monev but goods or services. Harrison C. Luke. 14 M. & W. 139 (cp. Keys r. Harwood, 2 C. B. 905) ; Anderson r. Rice. 20 Ala. 239; Oswald r. Godbold, 20 Ala. 811: Eastland r. Sparks. 22 Ala. 607: Bernard v. Dickins. 22 Ark. 351; Baldwin r. Lessner. 8 Ga. 71 : Cochran r. Tatum. 3 T. B. Mon. 404: Slayton r. McDonald. 73 Me. 50: Pierson r. Spaulding, 61 Mich. 90; Mitchell r. Gile, 12 N. H. 390; Weart r. Hoagland's Adm'r. 2 Zab. 517; Brooks r. Scott's Exec, 2 Munf. 344: Bradley v. Ijevy, 5 Wis. 400. But see contra, Sullivan v. Boley. 24 Fla. 501: Stone v. Nichols, 43 Mich. 16: Dike- man V. Arnold, 78 Mich. 455; Brown v. St. Paul Ry. Co., 36 Minn. 236; Clark ACTION ON THE CONTRACT. 347 anomalous;^- and from a ieclmical point of view this may be so. But the doctrine must have the merit either of practical convenience or of conformity to men's sense of fairness, for the history of the civil law shows even more strikingly than that of the common law the develop- ment of the doctrine, in spite of ancient rules to the contrary, that a person aggrieved by breach of contract may have rescission and restitution. The Roman law, like the early English law, did not allow this, but it was permitted by the Code Napoleon, and consequently is permitted now not only in France, but in the numerous countries w^hich have copied French legislation. Germany clung longest to the old Roman rule, but in contracts within the commercial code the remedy in question has been authorized since 1861-1868, when a uniform commercial code was gradually adopted by the various German states, and since January 1, 1900, under the Biirgerliches Gesetzbuch the remedy is well-nigh uniformly allowable.^^ Rule in India. The same tendency may l)e observed in another direc- tion. The Indian Contract Act, though supposed to be generally a codification of contracts, seems to go beyond the law of England in allowing rescission.®* B. Action on the Contract. Action on the contract lies. On repudiation of a contract the ag- grieved party must have a remedy on the contract. The only ques- tion can be what he must do in order to perfect his right of action. If he has performed may sue at once. If he has already performed all that the contract required of him, there can be no doul)t that he may sue at once on the contract if the time when the defendant's performance was due has arrived. Whether suit may be brought at once even though that time has not arrived will be discussed later. V. Fairfield, 22 Wend. 522; Way v. Wakefield, 7 Vt. 223'; Wainwrigh't v. Straw, 15 Vt. 215. And see Jackson r. Hall, 53 111. 440. 62 Professor Keener so regards it, and finds in the anomalous character of the remedy a reason for some of its illogical limitations. Quasi-Con- tracts, 306. 63 See 13 Harv. L. Rev. 84, 85, 94, 95. 64 Sect. 39. When a party to a contract has refused to perform, or dis- ahled himself from performing, his promise in its entirety, the promise may put an end to the contract, unless he has signified, by words or conduct* hi.? acquiescence in its continuance. See also sect. 53, which allows rescission because of prevention of per- formance, and sect. 107. which allows a vendor who has parted with title but retained a lien to make a resale of the goods. It should be said, however, that the court in Sooltan Chimd r. Schiller, 4 Calcutta, 252, showed a tendency to restrict the effect of sect. 39. 348 DUTIES UXDEIl CONTRACT. If he has been prevented from performing may also sue. The situation is in legal effect similar when the injured party has not fully per- formed, but is literally prevented by the other party from continu- ing performance. Where work requires some cooperation of both parties this frequently happens. Though the plaintiff's damages may not be the same as if he had fully performed, his right of action is as complete, for when the defendant has himself caused the plaintiff''s non-performance he cannot take advantage of it as a defence. Where he has not performed or been prevented — Cockburn's rule. But if the injured party has not fully performed and is not prevented from continuing, yet because of the repudiation by the other party has just reason to believe that the latter will not fulfil his contractual obli^a- tion, the situation presents greater difficulty. In Frost v. Knight,^^ Cockburn, C. J., thus stated the law : " The promisee, if he pleases, may treat the notice of intention as inoperative, and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non-performance ; but in that case he keeps the contract alive for the benefit of the other party as .well as his o\vn; he remains subject to all his own lobligations and liabilities under it, and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation, of it, but also to take advantage of any supervening circumstance which would justify him in declining to complete it. " On the other hand, the promisee may, if he thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring his action as on a breach of it; and in such action he will be entitled to such damages as would have arisen from the non-performance of the contract at the ap- pointed time, subject, however, to abatement in respect of any circum- stances which may have afforded him the means of mitigating his loss." ^6 Rule approved in England but inconsistent with American decisions. This language was quoted with approval by Cotton, L. J., in Johnstone v. Milling,^'' and may be regarded as expressing the present under- standing of English lawyers on the matter in question.^^ The alter- native stated as permissible in the first paragraph of Lord Cockburn's 65 L. Pv. 7 Ex. Til. 66 L. E. 7 Ex. Ill, 112. 67 16 Q. B. D. 460. 68 Seo e. g. Leake. Contracts (4th ed.). 618; Mayne, Damages (7th ed.), 184. It is also quoted and acted on in Dalrymple v. Scott, 19 Ont. App. 477. EULE OF DAMAGES. 349 ■statement is not allowed generally in this country. There is a line of cases running back to 1845°^ which hold that after an absolute repudiation or refusal to perform by one party to a contract, the other party cannot continue to perform and recover damages based on full performance. This rule is only a particular application of the general rule of damages that a plaintiff cannot hold a defendant liable for damages which need not have been incurred ; or, as it is often stated, the plaintiff must, so far as he can without loss to himself, mitigate the damages caused by the defendant's wrongful act. The application of this rule to the matter in question is obvious. If a man engages to have work done, and afterwards repudiates his con- tract before the work has been begun or when it has been only partially done, it is inflicting damage on the defendant without benefit to the plaintiff to allow the latter to insist on proceeding with the contract. The work may be useless to the defendant, and yet he would be forced to pay the full contract price. On the other hand, the plaintiff is interested only in the profit he will make out of the contract. If he receives this it is equally advantageous for him to use his time otherwise. American decisions sound. By every consideration of mercantile con- venience these decisions are correct. The facts of one of the few cases'^'' which are directly opposed to them need only be stated to il- lustrate this. The defendant, resident in Illinois, contracted to buy of the plaintiff, resident in New Jersey, 500 tons of barbed wire, 69 Clark V. ^Marsiglia, 1 Denio, 317, is the earliest decision. In this case the plaintiff was employed to clean and repair a number of pictures, for whicli the defendant agreed to pay. After the plaintiff had begun work upon them the defendant countermanded the order. The plaintiff nevertheless completed the work and sued for the full price. The court held he could recover only for what he had done before the order was countermanded, with such further sum as would compensate him for the interruption of the contract at that point. To similar effect are Kingman r. Western Mfg. Co., 92 Fed. Rep. 486^ (C. C. A.) ; Black v. Woodrow, 39 Md. 194. 216: Heaver V. Lanahan. 74 Md. 493; Collins v. Delaporte, 115 Mass. 159 (semble) ; Hosmer r. Wilson, 7 Mich. 294; Gibbons r. Bente, 51 Minn. 499; American Publishing Co. i\ Walker. 87 Mo. App. 503; Dillon v. Anderson. 43 N. Y. 231; Lord r. Thomas. 64 N. Y. 107 {semhlr) : Johnson r. ]\[eeker. 96 X. Y. 93; People V. Aldridge, 83 Hun. 279 (seinble) ; Reiser r. Mears, 120 N. C. 443; Davis V. Bronson, 2 N. Dak. 300; Collver r. Moulton. 9 R. I. 90; Ault V. Dustin, 100 Tenn. 366; Chicago. &c. "Co. r. Barrv. 52 S. W. Rep. 451 (Tenn.) ; Tufts v. Lawrence, 77 Tex. 526; Derbv r. Jolinson. 21 Vt. 17; Dan- forth v. Walker. 37 Vt. 239; 40 Vt. 257; Cameron r. White. 74 Wis. 425; Tufts V. Weinfeld, 88 ^^'is. 647. But see contra. Roebling's Sons' Co. v. Lock Stitch Fence Co., 130 111. 660; McAlister r. Saflev, 65 la. 719 (cp. Moline Scale Co. v. Beed, 52 la. 307). See also Southern Cotton Oil Co. r. Heflin, •99 Fed. Rep. 3.39 (C. C. A.) ; Lake Shorp. &c. Rv. Co. v. Richards, 152 111. 59. 70 Roebling's Sons' Co. r. Lock Stitch Fence Co., 130 111. 660. See also Lake Shore, etc. Rv. Co. v. Richards, 152 111. 59. 350 DUTIES UXDER COXTRACT. After 120 tons had been delivered the defendant requested the plain- tiff to stop further shipments, and on the refusal ol the latter, tele- graphed, " Will not take wire if shipped." Xevertheless, the plaintiff went through the futile and expensive steps of preparing and send- ing the rest of the wire, and was held entitled to recover damages for BO doing. Rule of damages not perhaps applicable in every case. The English courts have recognized the duty of a plaintiff to mitigate or at least not to enhance the damages which a defendant is to be called upon to pa}' ;"^ and it is quite possible that Lord Cockburn, in stating as he did the first alternative right of a party aggrieved by repudiation of a contract, did not appreciate that his statement justified a violation of that duty."^ It need not be contended that in every case the prin- ciple of damages in question will deprive the plaintiff of the right to continue performance of the contract after it has been repudiated. There may be cases where so doing will not needlessly enhance dam- ages. But it is clear that such cases must be exceptional. Inconsistency of Cockburn's language — True rule. Lord Cockburn's statement of the plaintiff's second alternative is that " The promisee may, if he thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring his action as on a breach of it." The two clauses of this sentence logically contradict each other. If the contract is put an end to, no action can be brought upon it.'^^ If an action may be brought upon it, either at once or at any time in the future, it is not put an end to,'* The question of the time when the action should be brought is not immediately essential here, and that question being left for subse- quent discussion, it may be laid down as a more logically coherent and more practicall}^ useful statement that the promisee may, if he thinks proper, treat the repudiation of 1he other party as a ground for putting an end to the contract, as shown in the earlier part of this article. If this course is adopted no rights under the contract TiMavne, Damages (7th ed.), 185; Harries r. Edmonds, 1 C. & K. 68fi, 687; Roper v. Johnson, L. R. 8 C. P. 167: Roth r. Tavsen (C. A.), 12 T. L. R. 211: Brace v. Calder (C. A.). [1895] 2 Q. B. 25.3". Cp. BroAvn r, Muller, L, R. 7 Ex. 319; Re South African Trust Co, (C. A.), 74 L. T. 769. TSLord Cockburn's statement is also sometimes repeated by American courts, which would not be Hkelv to enforce it to its logical conclusion. See Foss. etc., Co. V. Bullock. 59 Fed. Rep. 8.3. 87; Smith r. Georgia Loan Co., 11.3 Ga. 975; Strauss v. Meertief. 64 Ala. 299. 307; Claes, etc.; Mfg. Co., r. McCord, 65 Mo. Anp. 507: Walsh r. :\Tyers. 92 Wis. 397. "S Heagney r. J. I, Case Machinery Co. ^Neb.), 96 N. W. Rep. 175; McCor- mick Machine Co. r. Brown (Neb.),' 98 IST. W. Rep. 697; Ward v. Warren, 44 Oreg. 102. 74Speirs r. Union For.cre Co., 180 Mass. 87. 02. CONTILVCT NOT TERMINATED. 351 can remain, though a quasi-contractual right to recover the value of anything which has been done will survive. Or the promisee may decline to continue to perform and sue the promisor for his breach of contract. Ordinarily, of course, a plaintiff in an action upon a contract cannot succeed if he has himself failed to perform at the proper time ; but if that failure to perform was excused by the de- fendants' own conduct this principle does not apply. The authorities furnish abundant illustration of this when the excuse for the plain- tiff's failure to perform consisted in a prior serious breach of the con- tract by the defendant.'^ The same principle covers the case of repudiation without an actual breach of contract. The reason why ' the plaintiff must ordinarily have performed in order that he may recover is the same reason which imderlies the doctrine of failure of consideration. The mutual performances in a bilateral contract are, barring exceptional cases, intended to be given in exchange for each other, and if the exchange fails on one side owing to defective performance, the other party may likewise decline to perform. This reason was pretty well hidden during the early development of the doctrine under the terminolog}' of implied conditions, but it is suffi- ciently apparent at the present day.'^^ Xow, if it be an excuse which will justify a promisor in breaking his promise that his co-contractor has failed to give the performance agreed upon as an exchange, it should likewise be an excuse that the co-contractor has made it plain, as by repudiation, that he will not give such performance when it be- comes due in the future. A promisor can no more be expected to per- form his promise when he is not going to receive counter-performance than when he actually has not received it. Baron Parke — a judge not likely to stretch too far the rules of the common law in order to work out justice — so held in Ripleij v. M'Clure"'^ Contract not terminated. Neither where the plaintiff's excuse for his own non-performance is the defendant's actual breach of the contract nor where that excuse is a prospective breach because of repudiation does the plaintiff terminate the contract merely by availing himself of his excuse. The contract still exists, but one party to it has a defence and an excuse for non-performance. It may he thought that this statement differs from that of Lord Cockburn's second alterna- tive only in words. Even so, words have their importance. If wrongly used, wrong ideas are sure to follow, and wrong decisions 75 Se5 Parsons on Contracts (8th ed.). ii. 7nO. 76 See e. g., Hull Coal Co. r. Empire Coal Co., 113 Fed. Hep. 256, 258 (C. C. A.). 77 4 Ex. 345. 352 DUTIES UXDER CONTRACT. follow wrong ideas. It is a source of serious confusion in the cases that a contract is frequently sj^oken of as " rescinded " or " put an end to," when in truth one party to the contract has merely exercised his right to refuse to perform because of the wrongful conduct of the other party."* To be sure it frequently makes little practical difference whether this is the case or wiiether the contract is in fact rescinded, \\liere the only question that arises is in regard to the liability of a defendant for his refusal to perform the result is the same whether the whole contract is rescinded or whether it still sub- sists subject to a defence on the part of the defendant. But if the 'defendant seeks by counter-claim or cross-action to establish a right on his part to damages, his success depends on the existence of the contract. And more than one court has been led into the error of holding that no such right of action existed — that a voluntary exer- cise of the right to refuse to continue performance necessarily in- volved a total termination of the contract."^ 78 This eiror is adverted to in Anvil Mining Co. r. Humble, 153 U. S. 540, 551. The phiintiff in that case had ceased to perform because of a breach of contract by the defendant and sought to recover damages. Brewer, J., delivering the opinion of the court, said (p. 551): "It is in- sisted, and authorities are cited in support thereof, that a party cannot rescind a contract and at the same time recover damages for his [its?] non- performance. But no such proposition as that is contained in that instruc- tion. It only lays down the rule, and it lays that do\\'n correctly, which obtains when there is a breach of contract. Whenever one party thereto is guilty of such a breach as is here attributed to the defendant, the other party is at liberty to treat the contract as broken and desist from any further effort on his part to perform : in other words, he may abandon it, and recover as damages the profits which he would have received through full performance. Such an abandonment is not technically a rescission of the contract, but is merely an acceptance of the situation which the wrong- doing of the other party has brought about. So Holmes, J., in Daley v. People's BuiMing Assoc. 17S Mass. 1.3, 18, " conduct going no further than the defendant's might not justify even a refusal of further performance on the other side, ... a right which must not be confounded with rescission, and which in some cases is more easily made out.'" See also the remarks of Bowen, L. J., in Boston. &c. Co. v. Ansell, 39 Ch. D. 339, 365; Hayes v. Nashville, SO Fed. Rep. 641, 645. 79 Cox r. McLaughlin. 54 Cal. 605; Porter v. Arrowhead Reservoir Co., 100 Cal. 500, 502; Palm r. Ohio, etc., R. Co., 18 111. 217: Howe r. Hutchison, 105 111. 501; Lake Shore, etc. Ry. Co. v. Richards, 32 N. E. Rep. 402 (111. Sup. Ct. 1892); Jones v. ilial. 79 N. C. 104. These cases hold that though a serious breach of contract will justify the other party in treating the con- tract as rescinded and so refusing to continue to perform, yet at least imless the breach amounts to actual prevention the party aggrieved cannot, if he ceases to perform, sue on the contract. The late Illinois case cited was, how- ever, reversed on rehearing, and though somewhat limited in its language, perhaps overrules the earlier decisions in the same state. 1.52 111. 59, 80, 82. The first California decision was chiefly based on the early Illinois case. So in Hochster r. De La Tour. 2 E. & B. 678, counsel for the defendant, though their case did not require it, based their whole argument on the assumption that repudiation was equivalent to an offer to rescind, and that if the ag- grieved party did not continue to hold himself ready and willing to perform he could not sue upon the contract. ELECTION" XEED XOT BE MANIFESTED. 353 No manifestation of election necessary. Further, in order to exercise liis right to rescind a contract, an injured party must indicate his election so to do by positive action,'^" but if he only wishes to refrain from performing his part of the contract, he is not seeking to assert an affirmative right, but standing on the defensive. He need do nothing except refrain from performing or receiving performance until he sues or is sued, when he should plead the cause which justifies his non-performance.^^ Of course he may waive this justification, but only by some positive action or estoppel.®- Tn Betliel v. Salem Improvement Co., 03 Va. 3.54, also, the plaintiff was iwi allowed to recover for loss of profits, after having ceased to perform owina; to the defendant's breach of contract. See also Beatty v. Howe Lumber Co., 77 Minn. 272. Citations need not be multiplied to prove the error of the foregoing deci- sions and the right of the plaintiff to cease performance upon the defendant's repudiation and yet sue upon the contract. Mayne's Case, 5 Coke, 206 (3d Resolution^; Cort V. Ambergate, etc. Ry. Co., 17 Q. B. 127; Ripley v. McClure, 4 Ex. 345; Marshall r. Mackintosh. 78 L. T. 750; Leeson r. North British, &c. Co.. Ir. R. 8 C. L. 309; Anvil Mining Co. r. Humble, 153 U. S. 540; McElwee v. Bridgeport Land, &c. Co., 54 Fed. Rep. 627 (C. C. A.); Cherry Valley Works v. Florence, &c. Co., 64 Fed. Rep. 569 (C. C. A.); Martin r. Chapman, 6 Port. 344 ; Baldwin r. ^^larqueze, 91 Ga. 404; Weill r. American Metal Co., 182 111. 128; Rilev r. Walker, 6 Ind. App. 622: Morris V. Globe Refining Co. (Kv.), 59 S. W. Rep. 12; Lowe v. Harwood, 139 Mass. 133; Lee V. Briggs, 99 ]Niich. 487; Armstrong r. St. Paul, &c. Co., 48 Minn. 113; Berthold v. St. Louis Construction Co., 165 Mo. 280: Vickers t?. Electro- zone Commercial Co.. 67 N. J. L. 665; Wharton r. Winch, 140 X. Y. 287; Re^Tiolds V. Reynolds, 48 Hun, 142; Davis r. Tubbs, 7 S. Dak. 488. Another instance of the confiision of ideas due to the improper use of words here criticised may be found in Fox r. Kitton, 19 111. 519, where the court savs that there is no conflict between the views of Parke, B., and the decision of'Hochster v. De La Tour, 2 E. & B. 678, since Parke, B., said in Phillpotts r. Evans, 5 M. & W. 475, 477: "The notice (that he will not receive the ■wheat) amounts to nothing until the time when the buyer ought to receive the goods, unless the seller acts on it in the meantime and rescinds the con- tract." This, the Illinois court adds. " is in strict accordance with the principles recognized in . . . Hochster v. De La Tour." Now Parke was iising the word " rescinds '" in its true sense. What he meant and what he said was that the seller might at his option terminate the contract. The Illinois court thought he was using the word in the improper way in which Lord Cockburn did, and that his meaning was that the seller might, without himself performing, so act as to entitle himself to sue the buyer immediately for breach of the contract — a doctrine Parke expressly denied both in Phill- potts V. Evans and Ripley r. M'Clure, 4 Ex. 345, 359. Th^ mistake made in Fox V. Kitton is repeated in Kadish v. Young, 108 111. 170. 80 lilupra, p. 345. 81 Where the ground of non-performance is an actual breach of contract by the other party, it is an obvious consequence of the rule of common law pleading which required the plaintiff to allege and prove his own perform- ance, that he would fail if he had not duly performed, though the defend- ant had not manifested any election. Changes in modern pleading cannot have affected the substantive law on this point. Where the ground of non- performance is repudiation or a prospective breach, there should be no difference for the essential nature of the defense is the same. 82 See Langdell, Summary of Contracts. § 177; Harriman on Contracts, (2d ed.). 23 354 DUTIES UNDER CONTRACT. Prospective inability to perform should excuse. If it is clear that one party to a contract is going to be unable to perform it the other party should be excused from performing. The excuse is the same as in cases where a wilful intention not to perform is manifested. The party aggrieved is not going to get what he bargained for in return for his performance. It is immaterial to him, and it should be im- material to the court whether the reason is because the other party cannot or because he will not do what he promised. Even if the- prospective inability is due to vis major this should be true.^' Cases of prospective inability. There is some difficulty in determin- ing when it is sufficiently certain that one side of a contract will not be performed, to justify a refusal to perform the other side. Cer- tainly if a party announces that he cannot perform, the other party is justified in taking him at his word.*** Destruction of the subject- matter of the promise of one party is clearly a defence to the other.^'^ Transfer to a third person of property forming the subject-matter of the contract is not so clear, since it is possible that the grantor may recover the title in time to fulfil the contract, but ordinarily the chance seems so remote that the defence should be allowed.^^ In- solvency of one party to a contract of sale is not always sufficient reason for refusal to perform by the other, for an assignee or trustee in insolvency or bankruptcy may find it for the advantage of the insolvent estate to complete the bargain, and if so he ought to have 83LangdeIl, Summary, § 158. And see cases in the following notes. 84 But it must be a clear and positive statement. Smoot's Case, 15 Wall. 36. See also Re Phoenix Bessemer Steel Co.. 4 Ch. D. 108. 8F 9 Harv. L. Rev. 106. Courts of equity in some jurisdictions have, how- ever, established an exception to this rule in the case of contracts for the sale of real estate. 9 Harv. L. Rev. 111. SGFort Pavne, etc., Co. v. Webster, 163 Mass. 134; Meyers t: Markham, 90 Minn. 230; James v. Burchell, 82 N. Y. 108; Brodhead r. Reinbold. 200 Pa. 618. Contra are Garberino r. Roberts, 109 Cal. 125; Webb v. Steplienson. 11 Wash. 342. See also .Joyce v. Shafer, 97 Cal. 335; Shively v. Semi-Tropic, etc., Co., 99 Cal. 259. In the latter cases the court cites decisions establishing the doctrine that a man may contract to sell land which he does not own, and draws the inference that if the seller ceases to own land which is the subject of a contract it does not excuse the other party. The inference does not seem warranted. In Ziehen r. Smith, 148 N. Y. 558. pt the time of performance there was an outstanding lien on the property, of which neither buyer nor seller knew at the time of entering into the contract. The buyer, without demanding fulfilment of the contract, at once brought suit to recover part of the price which he had paid. The court held he could not recover, as the incumbrance was one which Avas in the power of the vendor to remove, and he might have done so if requested. This decision was followed in Higgins f. Eagleton, 155 N. Y. 466. In the absence of any fraudulent concealment the determining question should be, Would a reasonable man be warranted in in- ferring that the contract would not be carried out? See Forrer r. Xnsh. 35 Beav. 167: Brewer r. Broadwood, 22 Ch. D. 105; Lvtle r. BreckenridL'c. 3 ,J. J. Marsh. 663; Payne V. Pomeroy, 21 D. C. 243. Cp. Fasten r. Jones, 193 Pa. 147. TIME WHEN RIGHT ACCKULS. 355 that right.®^ But no one is obliged to give credit to one who is in- solvent or bankrupt. Insolvency or bankruptcy affords a defence to any such contractual obligation, and payment may be required on de- livery, though the contract expressly provides for a term of credit.^^ And if a contract is of such a nature that an assignee cannot carry it out, insolvency will excuse further performance by the other party.*^ These seem to be the only cases in which prospective inability of one party is sufficiently certain to be a defence to the otlier party. C. Time When Right of Action Accrues. Relation of pleading to the question. The final question remains, When may the injured party bring his action upon the contract? If a technical declaration were as much thought of to-day as it was once, the question could hardly have become troublesome. From a technical point of view, it seems obvious that in an action on a contract the plaintiff must state that the defendant broke some promise which he had made. If he promised to employ the plaintiff upon June 1, the breach must be that he did not do that. A statement in May by the defendant that he was not going to employ the plaintiff upon June 1 can be a breach only of a contract not to make such statements. It is perhaps not wholly by chance that the doctrine of anticipatory breach has arisen as the exactness of common law pleading has be- come largely a thing of the past; for the science of special pleading, in spite of the grave defects attending it, had the great merit of mak- ing clear the exact questions of law and fact to be decided. Arguments from principle and precedent. The matter is so plain on principle that theoretical discussion is hardly possible,^^ but certain 87 Leake, Contracts (4th ed.), 461. 620, and cases cited; Mess v. Duff us, 6 Comm. Cas. 165; Brassel c. Troxel, 68 111. App. 131: Rappleye v. Eacine Seeder Co., 79 la. 220, 228; Hobbs c. Columbia Falls Brick Co., 159 Mass. 109; Vandegrift l: Cowles Co., 161 N. Y. 435. 88 See authorities above cited. Also, Lennox v. Murphy, 171 Mass. 370, 373; Diem r. Koblitz. 49 Ohio St. 41; Pardee v. Kanady, 100 N. Y. 121; Dougherty Bros. v. Central Bank, 93 Pa. 227; Lancaster Bank r. Huver, 114 Pa. 216. Mere doubts of solvency, even though reasonable, furnish no defense to the literal performance of a contract. C. F. Jewett Publishing Co. v. Butler, 159 Mass. 517. 89 Leake, Contracts (4th ed.), 908; Mess r. Duflfus, 6 Comm. Cas. 165; Ex parte Pollard, 2 Low. 411; Chemical Nat. Bank r. World's Fair Exposi- tion, 170 111. 82; Bank Commissioners r. New Hampshire Trust Co., 69 N. H. 621. 90 It need hardly be said that the doctrine of anticipatory breach is peculiar to our law. In Mommsen's Beitriige zum Obligationenrecht, Abtheilunsr, 3, § 4. it is said: " The obligation must be already due. So long as the time of maturity 356 DUTIES UXDER COXTRACT. distinctions may be made which have not always been observed, and which, if observed, are a sufficient answer to the claims of practical convenience that furnish the only support for the advocates of the doctrine of anticipatory breach. It seems desirable, also, to explain certain early cases which have led to some confusion, and thereby show the lack of historical basis for the doctrine; and of this first. Early decision. In Y. B. 21 Edw. lY. 54, pi. 26, Choke, J., says: "If you are bound to enfeoff me of the manor of D. before such a feast, if you make a feoffment of that manor to another before the said feast, notwithstanding that you repurchase the property before the said feast, still you have forfeited your obligation because you were once disabled from making the feoffment." ^^ This and similar statements are repeated several times in the early books.^" Explanation of the decision. What Choke was talking about was a bond with a condition. This appears from the case itself where his remark was made as an illustration, and so it was understood.^^ At the present day a bond with a condition to convey before a certain day would be regarded as in substance the equivalent of a covenant to pay on or after the day the penal sum of the bond (for which the law would substitute appropriate damages) if a conveyance was not made before the day. That does not represent the early under- standing of such an instrument. The words of a bond, which are still used, acknowledging an immediate indebtedness, and adding a proviso in which case the instrument is to become void, had a literal meaning for our ancestors. "A specialty debt was the grant by deed of an immediate right, which must subsist until either the deed was cancelled or there was a reconveyance by a deed of release." ^^ It has been frequently pointed out that a debt was not regarded in has not arrived, the obligor has always a defense in case the creditor should endeavor to enforce the obligation."' And in the typical case of one who regardless of his contract to sell and deliver in the future specific property to A sells and delivers it to B, Oesterlen, Der Mehrfache Verkauf, pp. 17. 18, says: "The temporary impossibility of performance due to the first delivery is wholly immaterial if it is removed at the proper time.'' . . . '" When fulfilment is not made to the latter {i. e. A) at the proper time, then for the first time has a legal injurj'* been done." 91 In Mayne's Case, 5 Coke, 20 b. 21 a. this passage is literally translated from the Year Book, and it is to Coke, probably, that the later currency of the citation is due. 92 In 1 Rolle's Ab. 447, 448. under the title "Condition," this and several other similar cases are put. See also 5 Viner's Ab. 224. 9- This is evident, e. g. from IJolle's classification of thr authority under " Condition." See also infra, p. 3.58. n. OS. &* 9 Harv. L. Rev. oG, by Professor Ames. BOXDs a^;d covenants. 357 our early law as a contractual right but a property right, and a deed creating a debt was not looked upon, as it k to-day, as a promise to pay money, but as a grant or conveyance of a sum of the grantors money to the grantee.^^ Accordingly a bond was closely analogous to a mortgage, — a conveyance with a provision of defeasance at- tached. If the condition was or became impossible there remained an absolute debt created by the bond.^^ Choke's idea seems to have been that when the obligor of the bond sold the property, the condi- tion became at that moment impossible of performance. There was, therefore, at that moment, by virtue of the bond itself, an absolute indebtedness, and this indebtedness, having once become absolute, could not subsequently be qualified. The condition could not be temporarily in abeyance. Explanation of case continued. Whether tiiis view of the law was that generally taken by the contemporary judges, and, if so, when it gave way to a more modern conception, is not very material to this dis- cussion, but it may be mentioned that Choke's statement seems in- consistent with the opinions of writers of authority not long after- wards.^'^ What is material to observe is that, whichever way the point is decided, these authorities have no bearing upon the question of the immediate right to sue upon the repudiation of a contract. It may safely be asserted that Choke and his contemporaries and successors 85 Parol Contracts prior to Assumpsit, by Professor Ames, 8 Harv. L. Rev. 252; Pollock & Maitland, Hist. Eng. Law (2d ed.), ii. 205; Langdell, Sum- mary of Contracts. § 100. 96 2 Vynior's Case, 8 Coke, 81 b, 83 a ; Perkins, Profitable Book, §§ 736, 757; 1 Rolle's Ab. 419 (c) pi. 2; lb. 420 (E) pi. 1, 2. The last passage reads: " If the condition of a bond or feoffment is impossible when it is made it is a void condition, but the obligation or feoffment is not void but single, because the condition is svibsequent. But if a condition precedent be impos- sible when it is made the whole is void, for nothing passes before the condi- tion is performed." Perkins ( § 757 ) gives a case of a condition originally possible, but subsequently becoming impossible. 97 Perkins, Profitable Book, § 800: "And there is a diversity when the condition is to be performed on the part of the feoffor or grantor, etc., and when on the part of the feoffee or grantee, etc. For when it isi to be per- formed on the part of the feoffee or grantee, it behoveth him that he be not disabled at any time to do or perform the same." § 801. " But when the condition is to be performed on the part of the feoffor or grantor, although they are disabled to perform it at any time before the day on which it ought to be performed, yet if they are able to perform the same at the day, etc., it is sufficient, except in special cases." Illustrations are also given by the author. This was written in the first half of the sixteenth century. Coke adopted the diversity (Co. Litt. 221 b) ; but neither author gives a satisfactory reason for it. In the case put by Choke the condition was to be performed by the obligor, grantor of the bond. 358 DUTIES UXDER CONTRACT. would all have agreed that a covenant to convey land before a certain feast, or a covenant to pay damages if the covenantor failed to con- vey land before a certain feast, could in no event have been sued upon before the feast.^^ Erroneous statement of Fuller, C. J. When, therefore, Fuller, C. J., in a case recently decided by the Supreme Court of the United States, asserts, " It has always been the law that where a party deliberately incapacitates himself or renders performance of his contract im- possible, his act amounts to an injury to the other party, M-hich gives the other party a cause of action for l)reach of contract," ^ it must, with deference, be said that the learned judge is mistaken. The mis- take is perhaps more pardonable than it would othervrise be, had not an English court fallen into the same error. In Ford v. Tiley} Bay- ley, J. in delivering the opinion of the court, draw* the conclusion from some of the old authorities above referred to " that where a party has disabled himself from making an estate he has stipulated to make at a future day, by making an inconsistent conveyance of that estate, he is considered as guilty of a breach of his stipulation, and is liable to be sued before such day arrives." ^ This was not, so far as appears, necessary to the decision of the case. The decision seems to have been correct, as will presently be shown, but Bayley's remark is note- worthy as the first statement in the English books authorizing the idea that an action may be brought on a promise before it is broken. It is to be noticed that this remark is confined to the case of an estate, and is not made as laying down a general principle of the law of con- tracts.^ Wliere the owner of specific property agrees to sell it at a 9SThis is neatly proved by an extract from the case of Hoe r. Marshall, Cro. Eliz. 579, 580, S. C. Goldsb.'l67, 168. The reader should first be reminded that in our early law a release of a claim or debt was treated as a conveyance and that consequently a release could not be made of a possible future claim, and further that the word '"obligation" here as always in the early books means a bond with condition. " If one covenants to infeoff me before Michaelmas, a release of all actions befoi-e Michaelmas is no bar to an action of covenant brought after Michaelmas, for there was not any cause of action at the time of the release made. But if an obligation be for the performance of that covenant, a release of all actions is a discharge of that bond, for it was a duty defeasible." 99Roehm v. Horst, 178 U. S. 1, 18. It is also stated in the opinion fp. 8) that this Avas " not disputed." If so, the counsel for the defendant conceded more than they should. 1 6 B. & C. .325 (1827). But the error is pointed out, though perhaps not conclusively shown, in tlie able opinion of Wells, .J., in Daniels r. Newton, 114 Mass. 5S0. It is also adverted to in the argument of counsel for the dofendant in Short r. Stone, 8 Q. B. 358, .364, and in Lovelock r. Franklyn, 8 Q. B. 371. 376. 2 6 B. & C. 325. 327. 3 Bavley's remark was repeated as representing the law in Heard v. Bowers, 23 Pick. 455, 460; but in that case, as the impossibility was not due to the HOCriSTER V. DE LA TOUR. 359 future day, it is certainly much easier to imply a promise that he will not otherwise dispose of it in the meantime, than it is to imply a promise in every contract not only to do but to say nothing inconsistent with the principal promise. Other English cases. In 1846 there were decided two cases in which a defendant was held liable for the breach of a promise to marry. In one of these cases'* the defendant's promise was alleged to be simply to marry the plaintiff ; in the other case " to marry her within a reasonable time next after he should thereunto be requested." ' In both cases the defendant was held liable without any request by the plaintiff. Dicta against anticipatory breach. These cases did not profess to es- tablish any general doctrine that a contract could be broken before the time for its performance. Moreover, Parke, B., twice expressly ruled the contrary at about this time;^ and Lord Denman expressed a similar opinion.''' Hochster v. De La Tour. So the matter stood in 1852 when the case of Hochster v. De La Tour^ was decided. In that case the plaintiff voluntary act of the promisor, the rule was held inapplicable. In Daniels v. Newton, 114 Mass. 530, the dictum in Heard v. Bowers, was repudiated. 4Caines v. Smith, 15 M. & W. 189. 5 Short r. Stone, 8 Q. B. 358. sPhillpotts V. Evans, 5 M. & W. 475, 477 (1839) : " I think no action would then have lain for the breach of the contract, but that the plaintiffs wero bound to wait until the time arrived for delivery of the wheat, to see whether the defendant would then receive it. The defendant might then have chosen to take it, and would have been guilty of no breach of contract, for all that he stipulates for is that he will be ready and willing to receive the goods, and pay for them, at the time when by the contract he ought to do so. His contract was not broken by his previous declaration that he would not accept them; it was a mere nullity, and it was perfectly in his power to accept them, nevertheless; and, vice versa, the plaintiflFs could not sue him before." In Ripley r. M'Clure, 4 Ex. 945 (1849), Parke reiterated his statement that a notice before the time for performance could not be a breach of contract, but held that it might excuse the other party from continuing to perform. 7 Lovelock V. Franklyn, 8 Q. B. 371, 378 (1846) : "This distinction shows that the passage cited from Lord Coke is inapplicable; that proves no more on the point now before us than that, if an act is to be performed at a future time specified, the contract is not broken by something which may merely prevent the performance in the meantime." As Lord Denman had immedi- ately before taken part in the decision of Short r. Stone, 8 Q. B. 356, it may be assumed he did not regard that decision as inconsistent with his later remarks. In Thomson r. Miles, 1 Esp. 184, Lord Kenyon had said that it had been solemnly adjudged that if a party sells an estate without having title, but before he is called upon to make a conveyance, by a private act of Parlia- ment, gets such an estate as will enable him to make a title, that is sufBcient." See also Alexander v. Gardner, 1 Bing. N. C. 671, 677, per Tindal, C. J, 8 2 E. & B. 678. 3G0 DUTIES UNDER CONTRACT. had entered into a contract with the defendant to serve liim as a courier for three months beginning June 1, 1852. On May 11, the defendant Avrotc to the plaintiff declining his services. The action was begun May 22, and, after a verdict for the plaintiff, objection was taken that the action was prematurely brought. Counsel for the defendant, however, argued — unnecessarily so far as the immediate case was concerned — that the plaintiff, having taken other employ- ment, had terminated the contract. Lord Campbell, in delivering the opinion of the court in favor of the plaintiff, showed that the situa- tion would l)e unfortunate if the plaintiff, as a condition of getting a right of action, must decline other employment and hold himself ready to perform until June 1. From this, apparently misled by the argument of counsel. Lord Campl3ell drew the conclusion that the plaintiff must have an immediate right of action; and also drew the conclusion from the earlier cases already referred to^ that incapacity before the time for performance had already been settled by decision to be a breach, neglecting to notice the distinction, hereafter adverted to, between a fixed future day and a day which may be fixed at any time in the present or future. Modern law. Those two misapprehensions of Lord Campbell, for as such they must be regarded, make the case an unsatisfactory one. It has, however, settled the law in England,^" and the doctrine for which it stands has been adopted in Canada,^^ in this country either by dictum or decision, in the Federal courts^^ and in the courts of a 9 He adds the case of Bowdell r. Parsons, 10 East, 359, as establishing the proposition that " if a man contracts to sell and deliver specific goods on a future day, and before the day he sella and delivers them to another, he is immediately liable to an action at the suit of the person Avith whom he first contracted to sell and deliver them." In fact, the contract in that case was to deliver upon request. 10 Frost V. Knight, L. R. 7 Ex. Ill; Johnstone v. Milling, 16 Q. B. D. 460; Synge r. Synge (C. A.). [1894] 1 Q. B. 400; Roth v. Taysen, 73 L. T. 028. See also Danube, etc., Co. v. Xenos, 13 C. B. (x. s.) 825;"^ Averv v. Bowden, 5 E. & B. 714; Reid r. Hoskins, 6 E. & B. 953; Roper r. Johnson, L. R. 8 C. P. 107; Brown r. Muller. L. R. 7 Ex. 319; Re South African Trust Co., 74 L. T. 769. 11 Dalrymple r. Scott. 19 Ont. App. 477, 483; Ontario Lantern Co. v. Hamil- ton Mfg. Co., 27 Ont. 346. i2Roelim V. Horst, 178 U. S. 1. afRrming 91 Fed. Rep. 345 (C. C. A.), which aflirmed 84 Fed. Rep. 565: Grau r. McVicker. 8 Biss. 13; Dingley r. Oler, 11 Fed. Rep. 372; Foss, &c. Co. r. Bullock, 59 Fed. Rep. S3. 87; Marks v. Van Eeghen. 85 Fed. Rep. 853 (C. C. A.). The Supreme Court long remained ap- parently undecided. Cleveland Rolling Mill r. Rhodes. 121 U. S. 255. 204; Pierce r. Tennessee, &c. R. R. Co., 173 U. S. 1, 12. See a^so Edward Hines Lumber Co. i). Alley, 73 Fed. Rep. 003 (C. C. A.). Clark r. National Benefit Co., 67 Fed. Rep. 222, must now be regarded as overruled. DEFENCE AND RIGHT OF ACTION. 361 majority of the States in which the question has arisen.^^ There are strong opinions to the contrary,^^ however, and in many States the question is still undecided, ^^ so that the final outcome in America is not yet certain. Distinction between defence and right of action. The reasoning in. Hochster v. De la Tour,"^^ already adverted to, illustrates the im- portance of a distinction, which should be observed — the distinction between a defence and a right of action. This seems obvious, but it is frequently lost sight of, as it was in that case. Every consideration of justice requires that repudiation or inability to perform should immediately excuse the innocent party from performing, nor is any technical rule violated if the excuse is allowed. But it does not fol- low from this that he has an immediate right of action. It is a con- sequence of allowing such an excuse that when he brings an action 13 Wolf -. Marsh, 54 Cal. 228; Fresno, &e. Co. r. Dunbar, 80 Cal. 530; Poirier c. Gravel, 88 Cal. 79 ; Remv i\ Olds. 88 Cal. 537 ; Garberino r. Roberts, 109 Cal. 125, 128; Thomson v. Kyle, 39 Fla. 582; Fox r. Kitton, 19 111. 519; Follansbee v. Adams, 86 111. 13; Kadish r. Yovrng. 108 111. 170; Engesette v. McGilvray, 03 111. App. 401; Kurtz v. Frank, 76 Ind. 504; Adams r. Byerly, 123 Ind. 368. 371; Crabtree r. Messersmith, 19 Iowa, 179; Holloway r. Griffith, 32 Iowa, 409; McCormick r. Basal, 40 Iowa, 235; Piatt r. Brand, 20 Mich. 173; Sheahan v. Barrv, 27 Mich. 217: Kalkhoff r. Xelson, 60 Minn. 284, 287; Bignall. &c. Mfg. Co. r. Pierce, &c. Mfg. Co., 59 Mo. App. 673; Claes, &c. Mfg. Co. V. McCord, 65 Mo. App. 507; Vickers v. Electrozone Co., 67 N. J. L. 665; O'Neill V. Supreme Council, 70 N. J. L. 410; Burtis r. Thompson, 42 N. Y. 246; Howard r. Daly, 61 N. Y. 302: Ferris r. Spooncr, 102 X. Y. 10; Matthews v. Matthews, 62 Hun, 110; Nichols r. Scranton, &c. Co., 137 N. Y. 471; Stokes V. McKay, 147 N. Y. 223; Union Ins. Co. v. Central Trust Co., 157 N. Y. 633, 643 (cp. Shaw r. Republic L. I. Co., 69 N. Y. 286, 293; Benecke v. Haebler, 38 N. Y. App. Div. 344; Hicks v. British Am. Assur. Co., 162 N. Y. 284; Lan- gan r. Supreme Council, 174 N. Y. 266) ; Sehmitt v. Schnell, 14 Ohio C. C. 153; Diem r. Koblitz, 49 Ohio St. 41; Stark r. Duvall, 7 Oklahoma, 213; Zuck r. McClure. 98 Pa. 541; Hocking t\ Hamilton, 158 Pa. 107: Mount- joy V. :\Ietzger. 9 Phila. 10; Ault r. Dustin, 100 Tenn. 306: Brown v. Odill, 104 Tenn. 250; Burke r. Shaver, 92 Va. 345; Lee v. Mutual, &c. Assoc. 97 Va. 160; Mutual Assoc, r. Tavlor, 99 Va. 208; Davis v. Grand Rapids, &c. Co., 41 W. Va. 717: Chapman r. Beltz Co., 48 W. Va. 1. See also Wells r. Hart- ford Co., 76 Conn. 27; Trammell v. Vaughan, 158 Mo. 214; Vandegrifc r. Cowles Engineering Co., 161 N. Y. 435. i4Pittman v. Pittman (Kv.), 61 S. W. Rep. 461: South Gardner Lumber Co. r. Bradstreet, 97 Me. 165; Martin r. Meles, 179 Mass. 114; Porter r. American Legion. 183 Mass. 326; Carstens v. McDonald, 38 Neb. 858; King r. Waterman, 55 Neb. 324; Parker v. Pettit, 43 N. J. L. 512, 517 (overruled) ; Stanford r. Megill, 6 N. Dak. 536; Markowitz V. Greenwall Co. (Tex. Civ. App.), 75 S. W^Rep. 74, 317. See also Perkins v. Frazer, 107 La. 390. 15 The question is referred to but expressly left open in Day i'. Connecticut, etc.. Co., 45 Conn. 480, 495 (but see Wells r. Hartford Co.', 76 Conn. 27) ; Sullivan r. Mc:\Iinan, 26 Fla. 543 (but see Tliomson r. Kvle, 39 Fla. 582) ; Miltby V. Eisenhauer, 17 Kan. 308, 311: Dugan v. Anderson, 36 Md. 567; Pincknev v. Dambmann, 72 Md. 173, 182 (Wt see Lewis v. Tapman, 90 Md. 294). i€ 2 E. & B. 678. 363 DUTIES UNDER COXTRACT. he shall not be defeated by reason of the fact that he himself has not performed, since that failure to perform was excused by the defend- ant's fault. ^' But though the defendant cannot defeat the action on this ground, any other defence is as effectual as ever, and that the action is prematurely brought is an entirely different defence. Distinction between action for restitution and action on the contract. An- other important and frequently neglected distinction is that between an action for restitution and an action on the contract. Since re- pudiation affords immediate cause for rescission it also entitles the party aggrieved to bring an immediate suit for the restitution spe- •cifically or in money equivalent of whatever he has parted with.^^ Cases allowing this do not involve the consequence that an action might be brought at that time on the contract. No inconsistency in allowing full damages before all performance due. Again, it is often thought that to allow a plaintiff to sue and recover full damages before the time for the completion of all the defendant's performance is to allow the doctrine of anticipatory breach, ^^ yet this is not the case. As soon as a party to a contract breaks any promise he has made, he is liable to an action. In such an action the plaintiff will recover whatever damages the breach has caused. If the breach is a trifling one such damages cannot well be more than the direct injury caused by that trifling breach. But if the breach is serious •or is accompanied by repudiation of the whole contract, it may and frequently will involve as a consequence that all the rest of tlie con- tract will not be carried out. This may be a necessary consequence of the situation of affairs or it may result simply from the plaintiff's right to decline to let the defendant continue performance, since even if all the remaining performance were properly rendered, the plain- tiff would not get substantially what he bargained for. The plaintiff is entitled to damages which ■will compensate him for all the conse- quences which naturally follow the breach, and therefore to damages for the loss of the entire contract. This is no different principle 17 Thus where an owner of a building refused to allow a contractor to go on with work upon it a condition of the contract requiring the contractor to produce a certificate of an engineer showing full performance cannot be set up bv the owner in answer to an action bv the contractor. Smith r. Wetmore, 167 X. Y. 234. 18 Hupra, p. 339. 19 Nichols r. Scranton. etc., Co.. 137 X. Y. 471; Union Tns. Co. r. Central Trust Co., 157 X. Y. 633 : Hocking r. Hamilton. 1.58 Pa. 107. illustrate this. These cases are unquestionably right. They do not involve the question of anticipatory breach, though in each of them the court seems to have thoufiht so. SUBSIDIARY TROMISES, 363 from allowing a plaintiff in an action of tort for personal injuries to recover the damages he will probably suffer in the future. If the cause of action has accrued, the fact that the damages or all of them have not yet been suffered is no bar in any form of action to the re- covery of damages estimated on the basis of full compensation. This IS law where the doctrine of Hochstcr v. De la Tour is denied, as well as where it is admitted.^*^ Action may be based on breach of subsidiary promise. Under this prin- ciple a right of action may accrue by breach of a subsidiary promise, long before the defendant's main performance is due, and the sub- sidiary promise may be an implied one. Tn any case where the plain- tiff's performance requires the cooperation of the defendant, as in a contract to serve or to make something from the defendant's materials or on his land, the defendant, by necessary implication, promises to give this cooperation, and if he fails to do so he is immediately liable though his only express promise is to pay money at a future day.^^ So in a contract of life insurance a promise on the jjart of the com- pany to accept the premiums is clearly implied in fact and a refusal to receive premiums is an immediate breach of contract.-^ It may indeed possibly be argued that there is in every bilateral contract an implied promise not to prevent performance by the other party.-^ Such prevention would in that case be an immediate breach of contract, and 20 Pierce v. Tennessee, &c. Co.. 173 U. S. 1; Re Manhattan Ice Co., 114 Ted. Rep. 399; Northrop r. Mercantile Trust Co., 119 Fed. Rep. 969; Strauss v. Meertief, 64 Ala. 299; Howard Col. v. Turner, 71 Ala. 429; ^Etna Life Ins. Co. v. Nexseii, 84 Ind. 347; Goldman r. GoMnian, 51 Xia. Ann. 761; Sutherland r. Wver, 67 Me. 64; Speirs c. Union Drop-Forge Co.. 180 Mass. 87; Cutter v. Gillette, 163 Mass. 95; Girard v. Taggart, 5 S. & R. 19; Kino; i;. Steiren, 44 Pa. 99; Chamberlin v. Morjran, 68 Pa. 168; Remelee v. Hall, '31 Vt. 582; Treat v. Hiles, 81 Wis. 280. "See also Mayne on Damages (6th ed.), 106 et seq.; Sutherland on Damages, §§ IDS. 112, 113. The contrary decisions of Lichtenstein r. Brooks. 75 Tex. 196, 198; Gordon r. Brewster. 7 Wis. 355 (cp. Treat r. Hiles, 81 Wis. 280; Walsh r. Myers, 92 Wis. 397 ) , are not to be supported. See also Salyers v. Smith", 67 ^rk. 526. 2ilnchbald r. Western, etc., Co., 17 C. B, (N. S.) 833. Ford r. Tiley, 6 B. & C. 325. was clearly correctly decided under this ■principle. The defendant promised to make a lease to' the plaintiff as soon -as he should become possessed of the property, Avhich was then under lease to a third party. The defendant before the expiration of the prior lease -executed another to the same lessee, thereby preventing possession reverting to him at the expiration of the previous lease. 22 O'Neill V. Supreme Council. 70 N. J. L. 410; Fischer v. Hope Ins. Co.. 69 N. Y. 161. The contrary decisions of Porter r. American Legion, 183 Mass. 326. and Langan r. Supreme Council. 174 N. Y. 266, must be deemed ■erroneous. 2.'? Bishop, Contracts. § 1431; Indian Contrnet Act. § 53; United States V. Teck, 102 U. S. 64. But see Murdock v. Caldwell, 10 Allen, 299. 364 DUTIES UXDEIf CONTRACT. if of sufficiently serious character damages for the loss of the entire contract may be recovered. As countermanding work may have the legal effect of prevention in this country,^* though it does not involve actual physical prevention, it would be a breach of contract on this theory at the time when a stoppage in the performance of the contract had been caused thereby.^^ Time of performance fixed by act of the other party. The time for the defendant's performance is frequently fixed in a contract, not by nam- ing a definite day, but by some act to be done by the plaintiff — either a coimter-performance or a request. If the defendant repu- diates the contract, it excuses the plaintiff from doing a nugatory act, and, as in the case of any other condition which the defendant's con- duct excuses, he cannot take advantage of its non-performance.-^ Ho is deprived of nothing thereby, except what he has indicated a willing- ness to go without, for he has said that even if the request be made he will not heed it, or if the counter-performance be offered he will not accept it. The case is very different where the defendant promises to pay on a fixed day, or when an outside event happens. To hold him immediately liable in such an event is to enlarge the scope of his promise, and entirely without his assent. If he prevented the time for his performance from coming, his assent might be dispensed A^'ith, but not otherwise.^^ The English cases prior to Hoclister v. De la 24 See ante, p. 349. See also Cort r. Ambergate, etc., Ev. Co., 17 Q. B. 127, 145. 25 Hosnier v. Wilson, 7 Mich. 294; Chapman r. Kansas City, etc.. Ev. Co.. 146 Mo. 4Sl. 26 The leading case for this well-settled doctrine is Cort f. Ambergate. etc., Ev. Co., 17 Q. B. 127. A few of the nianv other cases which might be cited are: Hinckley r. Pittsburg Steel Co., 121 U. S. 2G4; Dwyer v. tulane, etc., Adm's, 47 La. Ann. 1232; Murray v. Mayo, 157 Mass. 248; Canda v. Wick, 100 N. Y. 127. See supra, p. 353, ^n. 79. The distinction here contended for is well brought out in Lowe v. Harwood, 139 Mass. 133. In that case there was a contract for an exchange of real estate. No time was fixed for performance. Before any tender or demand for performance the defendant repudiated the contract. Holmes, J., in delivering the opinion of the court, held that this "not only excused the plaintiff from making any tender and authorized him to rescind if he chose, but amounted to a breach of the contract. The contract was for immediate exchange, allowing a reasonable time for necessary preparations. In the absence of special circumstances, which do not appear, sufficient time had been allowed, even if any consideration of that sort could not be and was not waived by the defendant. The case is not affected by Daniels V. Newton, 114 ]Mass. 530, but falls within principles that have been often recognized." 2" In Ford r. Tiley, 6 B. & C. 325, the time for performance was to be fixed by the defendant's coming into possession of certain property — an event depending on outside cnntiufjencies, which the defendant prevented from happening as expected. In the nature of the case, however, a party cannot prevent a day fixed by reference to the calendar from arriving. CONTRACTS TO MARRY. 365 Tour/^ which are cited in support of the doctrine of anticipatory breach,^^ may bo satisfactorily explained on these principles with possibly one exception.^*^ Contracts to marry. A great many of the cases are upon contracts to marry ;^^ and these cases may well be distinguished. Lord Cock- burn said in Frost v. Knight: "On such a contrnct being entered into ... a new status, that of betrothment, at once arises between the parties." ^- When a man promises to pay money or deliver goods at a future day, all he understands, all a reasonable man would under- stand, is that he will be ready to perform on the da}'. When a man promises to marr}^, his obligation, as he understands it and as it is understood, is wider, and includes some undertaking as to his conduct before the marriage-day. If this be so, marriage with another than the betrothed is an immediate breach, not directly of the promise to marry, but of the subsidiary obligation implied from it. As this breach necessarily involves a loss of the marriage, full damages could be recovered. Lord Cockburn tries to apply the same line of reasoning to other contracts, saying, " The promisee has an inchoate right to the performance of the bargain, which becomes complete when the time for performance has arrived. In the meantime he has a right to have the contract kept open as a subsisting and effective contract. Its unimpaired and unimpeached efficacy may be essential to his inter- 28 2 E. & B. 678. 29Bowdell r. Parsons, 10 East, 359; Ford v. Tiley, 6 B. & C. 325; Caines V. Smith, 15 M. &. W. 189. In Bowdell r. Parsons and Caines r. Smith the defendant promised to perfoi-m upon request, and later by making his own performance impossible excused the request. As to Ford v. Tiley, see ante. So in Clements v. Moore, 11 Ala. 35 — a decision before the days when anticipatory breaches were talked of — the defendant was held liable for breach of a promise to marry on request without a request on his marriage with another than the plaintiff. 30 Short V. Stone, 8 Q. B. 358. Here the promise was to perform a reasonable time after request. The defendant, by making his own perform- ance impossible, clearly dispensed with the necessitj- of a request as such. It does not seem so clear why he should forego the " reasonable time." Coleridge, J., nvoidtd the difficulty by a strained construction of the declara- tion, holding the promise to mean after request made within a reasonable time. The other members of the court simply say the request is dispensed with. 31 Frost V. Knight, L. E. 7 Ex. Ill; Kurtz v. Frank, 7fi Ind. 594; Adams r. Byerly, 123 Ind. 3GS; Holloway r. Grillitb, 32 la. 409; Lewis r, Tapman, 00 Md. 294; Shcahan v. Barry. 27 irich. 217; Trannncll r. Vaughan, 158 Mo. 214; Eurtis V. Thompson, 42 N. Y. 246; Brown r. Odill, 104 Tenn. 250; Burke r. Shaver, 92 Xa. 345. The distinction here suggested was referred to in Stanford v. Mcgill, N. Dak. 536; and in Lewis i^'Tapman, 90 Md. 294, /!0S. the court said: '"There is no occasion to adopt and we do not adopt Hochster v. De la Tour further than it applies under Knight v. Frost to an action for breach of promise to marry," 32 L. R. 7 Ex. Ill, 115. 36G DUTIES UNDER CONTRACT. ests." ^^ But this is fanciful. If true tiie action should be brought for breach of a promise to have the contract kept open. If there is such an implied obligation in any case there should be in ease of negotiable paper, for in no other case is it more important that the promise should not be discredited before the time for performance. Yet it may be doubted if any court would apply the doctrine to bills and notes.^'* Practical convenience. The reason most strongly urged in support of the doctrine of anticipatory breach is, however, its practical con- venience. It is said that if it is certain that the plaintiff is going to have an action, it is better for both parties to have it disposed of at once. It may be conceded that practical convenience is of more im- portance than logical exactness, but yet the considerations of practical convenience must be very weighty to justify infringing the underlying principles of the law of contracts. The law is not important solely or even chiefly for the just disposal of the litigated cases immediately before the court. The settlement of the rights of a community with- out recourse to the courts can only be satisfactorily arranged when logic is respected. But it is not logic only which is injured. The de- fendant is injured. He is held liable on a jDromise he never made. He has only promised to do something at a future day. He is held to have broken his contract by doing something before that day. Enlarging the obligation of contracts is perhaps as bad as impairing it. This may be of great importance. Suppose the defendant, after saying that he will not perform, changes his mind and concludes to keep his promise. Un- less the plaintiff relying on the repudiation, as he justly may, has so changed his position that he cannot go on with the contract without injury, the defendant ought surely to be allowed to do this.^^ But if the plaintiff is allowed to bring an action at once this possibility is 33 L. R. 7 Ex. 112, 114. 34 Benecke v. Haebler, 38 N. Y. App. Div. 344 ; affirmed without opinion in 166 N. Y. 631. See also Honour v. Equitable Soc, [1900] 1 Ch. 852; Greenway c. Gaither. Taney. 227; Flinn v. Mowry, 131 Cal. 481. In Roehm v. Horst, 178' U. S. 1, 7, Chief Justice Fuller distinguishes the case of a note on the ground that the doctrine of anticipatory breach only applies to contracts where there are mutual obligations. This has not before been suggested, though in fact the cases where the doctrine has been applied have been cases of bilateral contracts. Lord Cockburn's line of reasoning is certainly as applicable to unil.nternl as to bilateral contracts. It would be interesting to know what Chief Justice Fuller would say to the case of a promissory note given in exchange for an executory promise, or of an instrument containing mutual covenants, one of which was to pay money on a fixed day, the party bound to the money payment having repudiated his obligation before it was due. 35 Nilson V. Morse, .52 Wis. 240. ILLUSTRATIONS, 367 cut off. " Why," says Fuller, C. J., " should a locus poenitentiae be awarded to the party whose wrongful action has placed the other at such disadvantage ?" ^^ Because such is the contract the parties made. A promise to perform in June does not preclude changing position in May.^'^ Illustrations of inconvenience. Not only, moreover, do logic and the defendant suffer, but the very practical convenience which is the excuse for their suffering is not attained. A few illustrations from recent cases will show that as at present applied the doctrine of an- ticipatory breach is so full of pitfalls for the unwary as to be objec- tionable rather than advantageous practicall3^ In the last English case where the doctrine was much considered, it is thus stated : " It would seem on principle that the declaration of such intention [not to carry oiit the contract] is not in itself and unless acted on by the promisee a breach of contract. . , . Such declaration only becomes a wrongful act if the promisee elects to treat it as such. If he does so elect, it becomes a breach of contract, and he can recover upon it as such." ^^ The conception that a breach of contract is caused by something which the promisee does is so foreign to the notions not only of lawyers but of business men that it cannot fail to make trouble. If the promisee, after receiving the repudiation, demands or manifests a willingness to receive performance, his rights are lost. Not only can he not thereafter bring an action on the repudiation,^^ 36Roehm V. Horst, 178 U. S. 1, 19. 37 The California Civil Code, § 1440. provides: "If a party to an obliga- tion gives notice to another, before the latter is in default, that he will not perform the same upon his part, and does not retract such notice before the time at which performance upon his part is due, such other party is entitled to enforce the obligation without previously performing or offering to per- form any conditions upon his part in favor of the former part}'."' This necessarily implies that if the notice is retracted the obligation cannot be enforced without an offer to perform. Yet in California the doctrine of anticipatory breach, which in effect denies the right of retraction, is followed, and no reference is made to this section of the Code. The California cases are cited ante, p. 361, n. 13. The same provision is contained in the ^Montana Civil Code. § 1956. The North Dakota Civil Code also has copied in S 3774 this provision of the California Code, but the Supreme Court of North Dakota has denied the doctrine of nnticipatorv breach. Stanford r. Mcgill, 6 X. Dak. 536. 3S -Tolmstone r. Milling, 16 Q. B. D. 460. 472."per Lord Bowen. The late authorities continually refer to the necessity of the promisee acting on the repudiation. What action is necessary is not stated. It is to be noticed, however, that in Hochster r. De La four, 2 E. & B. 678; Frost v. Knight, L. R. 7 Ex. Ill, and most of the other cases, there was no manifestation of election other than bringing an action. This was held enough in Mutual Assoc. .-. Tavlor. 99 Va. 208. 39Zuck r.'McClure, 98 Pa. 541; Dalrj-uiple v. Scott, 19 Ont. App. 477. 3()8 DUTIES UNDER CONTRACT. but " he keeps the contract alive for the henefit of the other as well as his own; he remains subject to all his own obligations and liabili- ties under it, and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstance which would justify him in declining to complete it." ^"^ This is a severe penalty imposed upon the injured party for not seizing the right moment. When A, repudiates his promise, what is more natural or reasonable than for B. to write urging him to perform. Yet if B. does so, it seems not only does he lose his right of immediate action, but he is bound to perform his own promise, though he has reason to expect A. will not perform his.'*^ Johnstone v. Milling. In Johnstone v. Milling,'^^ the promisor stated that he could not get money enough to perform his promise. He made this statement "constantly in answer to the defendant's direct question, and at other times in conversation." It was held that this was not such a repudiation as would justify an action. I^ord Esher, M. E.. made the test, " Did he mean to say that whatever happened, Avhether he came into money or not, his intention was not to relniild the premises," '*^ as he had promised, and the other judges expressed similar views. A distinction between inability and wilful intention not to perform is not of practical value. As far as the performance of the contract is concerned they are of equal effect, and should be followed by the same consequences. Dingley v. Oler. In Bingleij v. OJer^^ the defendant had taken a cargo of ice from the plaintiff and agreed to make return in kind the next season, which closed in September, 1880. In July, 1880, the defend- ant wrote, " "We must, therefore, decline to ship the ice for you this season, and claim as our right to pay you for the ice in cash, at the 40 Frost V. Knight, L. H. 7 Ex. Ill, 112. Quoted as stating the law in Leake, Contracts (4th ed.), 618. 41 In accordance with this rule in Dalryniple v. Scott, 19 Ont. App. 477, the plaintiff lost his case. The defendant had repudiated the contract. The plaintiff did not manifest an election to treat that as an immediate breach, but on the contrary testified that he would have been willing to have accepted performance after the repudiation. When the time for ])erformance had passed he brought an action. Judgment was given for the defendant, because the plaintiff had not performed or offered to perform on his part. Cp. :Mutual Assoc, v. Taylor, 99 Va. 208; Walsh v. Mvers, 92 Wis. 397. 42 10 Q. B. D. 400. 43 Page 468. There were also other grounds of decision to which the present criticism is not intended to apply. 44 117 U. S. 490. MEASURE OF DAMAGES. 369" price you offered it to other parties here (fifty cents a ton), or give you ice when the market reaches that point." At the time when this letter was written ice was worth five dollars a ton. One does not need expert testimony to judge what probability there is of ice going down before the close of September to one-tenth of the price for which it is selling in July, and yet the court held the letter con- stituted no anticipatory breach of contract because the refusal was not absolute, but " accompanied with the expression of an alternative intention " to ship the ice " if and when the market price should reach the point which, in their opinion, the plaintiffs ought to be willing to accept as its fair price between them." Surely a man must be well advised to know when he has the right to regard his con- tracts as broken by anticipation. Measure of damages. In contracts for the sale of goods when there "is a repudiation of the contract before the time for performance, the question often arises as to the basis on which the plaintiff's damages are to be calculated. It is often thought that the decision of this question turns on whether a breach of the contract is made at the date of the repudiation or at the date when the goods were to be delivered. But this is not so. Even though the doctrine of anticipatory breach is not adopted the plaintiff should, if he knows the contract is going to be Ijroken, as much as if it has already been broken,^^ take any reasonable action to mitigate the damages which the defendant's ac- tion will cause, so that the price of the goods at the time when they should have been delivered will not necessarily be the sole criterion of the loss. On the other hand, even though the breach be regarded as having occurred at the time of repudiation, yet it was a breach of a contract to deliver at a later day, and, if it was not a reasonable thing under the circumstances to take some action at the earlier day the damages must be calculated on the basis of the price of the goods at the time when delivery should have been made. By no reasoning can the contract be treated as a contract to deliver goods at the date of the repudiation.^^ 45 This is doubtless contrary to the early cases (Leigh v. Patterson, 8 Taunt. 540; Phillpotts v. Evans, 5 M. & W. 475), but seems in accord with reason and with the principle of the American cases cited, ante, p. 349, n. 09. 46 The recent decisions on the point seem to have been made exclusively by courts which recognize the doctrine of anticipatory breach. Some of these decisions go very far in requiring the plaintiff to take affirmative action at hia own risk. See Brown v. Muller, L. R. 7 Ex. 319; Roper v. Johnson. L. R. 8 C. P. 167; Roth r. Tavsen, 12 T. L. R. 211 (C. A.) : Re South African Trust Co., 74 L. T. 709; Ashmore r. Cox. [1899] 1 Q. B. 436; Niekoll r. Ashton, [19001 2 Q. B. 298; Roehm r. Horst, 178 U. S. 1. Cp. James H. Rice Co. V. Penn Co., 88 111. App. 407. 24 ;70 UNLAWFUL AGREEMENTS. 273] * CHAPTER VII. Unlawful Agreements. PAGE. Of unlawful agreements in gen- eral, and their classification, 373 A. Contrary to positive law, 374 Agreements to commit an offence, 374 Agreements wrongful against third persons, 376 Fraud on creditors, 377 Dealings between creditor and principal debtor to prejudice of surety, 383 Dealings by agent, executor, &c., against his duty, 386 Settlements in fraud of marital right. 392 Married ^Yomen's Property Act, 1882, 393 Marriages within prohibited de- grees, 395 Royal Marriage Act, 397 Agreements illegal by statute, 397 Rules for construction of pro- hibitory statutes, 398 When agreements may be not void though forbidden, or void without being illegal, 404 Wagers, 405 B. Agreements contrary to morals or good manners, 410 Agreements in consideration of illicit cohabitation, 411 Validity of separation deeds, 413 Agreement for future separation void, 418 Publication of immoral or se- ditious works is not merely im- moral but an offence, 419 Contracts as to slaves, 420 C. Agreements contrary to pub- lic policy, 421 Connection of the doctrine with the common law as to wagers, 421 Modern extent of the doctrine: Efierton v. Brmcnloio, 423 Public policy as to external re- lations of the State, 420 PAGE. Trading with enemies, 426 Eff"ect of war on subsisting con- tracts, 427 Negotiable instruments between England and hostile country, 429 Hostilities against friendly states, 430 Trade with belligerents not un- lawful, 431 Foreign revenue laws, 431 Public policy as to internal gov- ernment : attempts to influ- ence legislation, &c., by im- proper means, 434 Sale of offices, &c., 438 Assignment of salaries, 439 " Stifling prosecutions " and com- pounding offences, 440 Compromise of election petition, 443 Secret agreement as to conduct of Avinding-up, 445 Agreements for reference to arbi- tration: extent of their validity at common law, and by the Ar- bitration Act, 445 Maintenance and champerty, 449 Rules as to champerty, 452 Purchase of subject-matter of suit, 455 Statute of Henry VIIT. against buying pretended titles, 457 Maintenance in general, 460 Public policy as to duties of in- dividuals, 461 Agreements as to custody of chil- dren, 461 Discretion of equity, 462 Custody of Infants Act, 463 Insurance of seamen's wages, 463 Agreements against social duty, 464 Public policy as to freedom of individual action, 404 Agreements in restraint of mar- riage, 465 Agreements to influence testators, 406 Agreements in restraint of trade, 407 FORBIDDEN PERFORMANCE. 371 General principles, Early history of the doctrine, Freedom of trade upheld by the common law, Particular restraint admitted. Restrictive covenants in 17th century, Limits of space, Modern riile as to limits, Table of decisions since 1854, Measure of distances, Indian Contract Act, Contracts to serve for life or ex- clusively, D. Judicial treatment of un- lawful agreements in gen- eral. Independent promises, where some lawful and some not, Where consideration or immedi- ate object unlawful. Unlawful ulterior intention, Connection with unlawful design already executed. Securities for payment under un- lawful agreement are void. Extrinsic evidence of illegality. Specific unlawful intention, how shown or contradicted, When payments can be recovered : rule as to party in pari delicto, PAGE 467 471 472 474 474 475 475 478 480 480 481 481 482 483 485 489 491 492 493 496 PAGE. Exceptions: duty of agents to principal unaffected. Money recoverable where agree- ment not executed. Where the payment was compul- sory, In equity where circumstances of fraud, &c., as between the par- ties. Final statement of the rule and qualification. Conflict of laws in space. Generally lex loci solutionis pre- vails, Exceptions — when a prohibitory municipal law is not merely local. When agreement is immoral iure gentium, Treatment of slave contracts in English courts: Santos v. II- lidge, Other instances of conflict of laws as to validity of agree- ment considered, Agreements against interests of the local sovereign, Conflict of laws in time: subse- quent illegality dissolves con- tract. Rules as to knowledge of parties collected, 516 498 502 503 504 505 506 506 06 508 509 511 513 514 Subject-matter or performance a thing positively forbidden, or part of a transaction which is forbidden (illegal). We have alread}' seen that an agreement is not in any case enforceable by law without satisfying sundry conditions : as, being made between capable parties, being sufficiently certain, and the like. If it does satisfy these conditions, it is in general a contract which the law commands the parties to per- form. But there are many things which the law positively commands people not to do. The reasons for issuing such commands, the weight of the sanctions by which they are enforced, and the degree of their apparent necessity or expediency, are exceedingly various, but for the present purpose unimportant. A murder, the obstruction of a high- way, and the sale of a loaf otherwise than by weight, are all on the same footing in so far as they are all forbidden acts. If the subject- matter of an agreement be such that the performance of it would either consist in doing a forbidden act or be so connected therewith as 372 UXLAWFCL AGREEMENTS. to be in substance part of the same transaction, the law cannot com- mand the parties to perform that agreement. It will not always com- mand them not to perform it, for there are many cases where the per- formance of the agreement is not in itself an offence, though the com- plete execution of the object of the agreement is : Ijut at all events it will give no sort of assistance to such a transaction. Agreements of this kind are void as being illegal in the strict sense. 274] *Not positively forbidden but immoral. Again, there are certain things which the law (a) does not forbid in the sense of attaching penalties to them, but which are violations of established rules of de- cency, morals, or good manners, and of whose mischievous nature in this respect the law so far takes notice that it will not recognize them as the ground of any legal rights. "A thing may be unlawful in the sense that the Jaw will not aid it, and yet that the law will not im- mediately punish it" (h).^ Agreements whose subject-matter falls within this description are void as being immoral. Not positively forbidden, but against public policy. Further, there are many transactions which cannot fairly be brought within either of the foregoing classes, and yet cannot conveniently be admitted as the sub- ject-matter of valid contracts, or can be so admitted only under un- usual restrictions. It is doubtful whether these can be completely reduced to any general description, and how far judicial discretion may go in novel cases. They seem in the main, however, to fall into the following categories : Matters governed by reasons outside the regular scope of municipal law, and touching the relations of the commonwealth to foreign states : Matters touching the good government of the commonwealth and the administration of justice : Matters affecting particular legal duties of individuals whose per- formance is of public importance: Things lawful in themselves, l)ut such that individual citizens could not without general inconvenience be allowed to set bounds to their (a) i. e. the common law. But qu. afjainst either common or ecclesiasti- whether the common law conld take cal law. notice of anything as immoral which (6) Bramwell B. Cowan v. Mil- ■would not constitute an offence hoiirn (1867) L. R. 2 Ex. at p. 236, 36 L. J. Ex. 124. 1 Mosul S. S. Co. r. McGregor, [1892] A. C. 2.5, 39. 46. 51. 58; United States r. Addystone Pipe Co.. 85 Fed. Rep. 271, 279: American Live Stock Co. v. Chicago Live Stock Exchange Co.. 143 111. 210: Ravmond r. Leavitt. 46 Mich. 447. 4.52: Rosenbaum tCU. S. Credit Co., 65 N. J.'L. 255; King i\ King, 63 Ohio St. 363. CLASSIFICATIOX. 373 freedom of action with regard to those things in the same manner or to the same extent as they may with regard to other things (c). ♦Summary. Agreements falling within this third description [275 are void as being against public policy. We have then in the main three sorts of agreements which are un- lawful and void, according as the matter or purpose of them is — A. Contrary to positive law. (Illegal.) B. Contrary to positive morality recognized, as such by law. (Im- moral. ) C. Contrary to the common weal as tending (a) To the prejudice of the State in external relations (b) To the prejudice of the State in internal relations (c) To improper or excessive interference with the lawful ac- tions of individual citizens. (Against public policy.) Caution as to use of terms. The distinction here made is in the rea- sons which determine the law to hold the agreement void, not in the nature or operation of the law itself: the nullity of the agreement itself is in every case a matter of positive law. Bearing this in mind, it is a harmless abbreviation to speak of the agreement itself as con- trary to positive law, to morality, or to public policy, as the case may be. The arrangement only approximate. The arrangement here given is believed to be on the whole the most convenient, and to represent dis- tinctions which are in fact recognized in the decisions that constitute the law on the subject. But like all classifications it is only approxi- mate: and where the field of judicial discretion is so wide as it is here (for nowhere is it wider) we must expect to find many cases which may nearly or quite as well be assigned to one place as to another. The authorities and dicta are too numerous to admit of any detailed review. But the general rules are (with some few exceptions) sufficiently well settled, so far as the nature of the case admits of general rules existing. Any given decision, on the other hand, is likely to be rather suggestive than conclusive when applied to a new set of facts. Some *positive rules for the construction of stat- [276 utes have been worked out by a regular series of decisions. But with this exception we find that the case-law on most of the branches of the subject presents itself as a clustered group of analogies rather than (c) We have already seen that the party's freedom of action as regards specific operation of contract is none the subject-matter of the contract, other than to set bounds to the 374 UNLAWFUL AGREEMENTS. a linear chain of authority. We have then to select from these groups a certain number of the more striking and as it were central instances. The statement of the general rules which apply to all classes of un- lawful agreements indifferently will be reserved, so far as practicable, until we have gone through the several classes in the order above given. A. Agreements contrary to positive Jaw. 1. Agreement to commit offence, void. The simplest case is an agree- ment to commit a crime or indictal^le offence: " If one bind himself to kill a man, burn a house, maintain a suit, or the like, it is void"(£?). With one or two exceptions on which it is needless to dwell, ob- viously criminal agreements do not occur in our own time and in civilized countries, and at all events no attempt is made to enforce them. In the eighteenth century a bill was filed on the Equity side of the Exchequer by a highwayman against his fellow for a part- nership account. The bill was reported to the Court both scandalous and impertinent, and the plaintiff's solicitors were fined and his counsel ordered to pay costs (e). Sometimes doubtful if performance of agreement would be offence — Mayor of Norwich v. Norfolk Ry. Co. The question may arise, however, whether a particular thing agreed to be done is or is not an offence, or whether a particular agreement is or is not on the true construction of it an agreement to commit an offence. In the singular case of Mayor of Norwich v. Norfolk Ry. Co. (f), the defendant company, being authorized to make a bridge over a navigable river at one par- 277] ticular place, had found difficulties in executing the *statutory plan, and had begun to build the bridge at another place. The plaintiff corporation took steps to indict the company for a nuisance. The matter was compromised by an arrangement that the company should — not discontinue their works, l)ut — complete them in a par- ticular manner, intended to make sure that no serious obstruction to the navigation should ensue : and an agreement was made by deed, in which the company covenanted to pay the corporation £1000 if the works should not l)c completed within twelve months, whether an Act of Parliament should within that time be obtained to authorize them or not. The corporation sued on this covenant, and the com- (d) Shepp. Touehst. 370. fipd from the orij^inals in the Eecorcl (e) Lindlev, on Partnership, 101. Office. See L. Q. R. ix. 107. for an account of If) (1855) 4 E. & B. 397, 24 L. J. the case {Everet v. Williams) veri- Q. B. lOo. CONTRARY TO POSITIVE LAW. 37^ pany set up the defence that the works were a public nuisance, and therefore the covenant to complete them was illegal. The Court of Queen's Bench was divided on the construction and effect of the deed. Erie J. thought it need not mean that the defendants were to go on with the works if they did not ol)tain the Act. " AVhere a contract is capable of two constructions, the one making it valid and the other void, it is clear law the first ought to be adopted.'' - Here it should be taken that the works contracted for were works to be rendered lawful by Act of Parliament. Coleridge J, to the same effect: he thought the real object was to secure by a penalty the speedy reduc- tion of a nuisance to a nominal amount, which was quite lawful, the corporation not being bound to prosecute for a nominal nuisance. Lord Campbell C.J. and Wightman J. held the agreement bad, as being in fact an agreement to continue an existing unlawful state of things. The performance of it (without a new Act of Parliament) would have been an indictable offence, and the Court could not pre- sume that an Act would have been obtained. Lord Campbell said : — " In principle I do not see how the present case is to be distinguished from an action by A. against B. to recover £1000, B. having cove- nanted with A. that within twelve calendar months he would murder C, and that on failing to do so he would forfeit and pay to A, £1000 as liqui*dated damages, the declaration alleging that although [278 B. did not murder C. within the twelve calendar months he had not paid A. the £1000" {g). It seems impossible to draw any conclusion in point of law from such a division of opinion (//). But the case gives this practical warning, that whenever it is desired to contract for the doing of something which is not certainly lawful at the time, or the lawfulness of which depends on some event not within the control of the parties, the terms of the contract should make it clear that the thing is not to be done unless it becomes or is ascertained to be lawful. (.17) 4 E. & B. 441. the case in the same way. The re- (h) Not only was the Court porters (4E. &B. 307) add not with- «qua.lly divided, but a perusal of the out reason to the headnote: Et quaere jud?meTits at large will show that no inde. two members of it really looked at 2 Mills V. Dunham. [1891] 1 Ch. 576. 500: Hobbs r. McLean. 117 U. S. 567. 576: United States r. Railroad Co., 118 U. S. 235: Van Winkle r. Satterfield, 58 Ark. 617: Hunt r. Elliott. 80 Ind. 245: Guernsey v. Cook, 120 Mass. 501: White V. Western Assur. Co., 52 Minn. 352: Bank v. Wallace, 61 N. H. 24: Ellerman r. Chicago, etc.. Co. 49 N. -T. Eq. 217: Curtis r. Gokey, 68 N. Y. 300: Ormes v. Dauchy, 82 N. Y. 443: Lorillard v. Clyde. 86 N. Y. V,^A ■ Shedeinskv ?•. Budweiser Brewing Co., 163 N. Y. 437 : Hoffman v. Machall, 5 Ohio St. 124. 132: Miller v. Ratterman, 47 Ohio St. 141, 164; Watters v. McGuigan, 72 Wis. 155. 376 UXLAWFUL AGREEMENTS. When the ulterior object is an offence. Moreover a contract may be il- legal because an olfence is contemplaied as its ulterior result, or because it invites to the commission of crime. For example, an agreement to pay money to A.'s executors if A. commits suicide would be void (i) f and although there is nothing unlawful in printing, no right of action can arise for work done in printing a criminal libel {Ji)^ But this depends on the more general considerations which we reserve for the present. 2. Agreement for civil wrong to third persons is void. Again an agree- ment will generally be illegal, though the inatter of it may not be an indictable offence, and though the formation of it may not amount to the offence of conspiracy, if it contemplates (/) any civil injury to third persons.^ Thus an agreement to divide the profits of a fraudulent scheme, or to carry out some object in itself not unlaw- 279] ful by means of an apparent trespass, breach of *contract, or breach of trust is unlawful and void (m).® A. applies to his friend {i) Per Bramwell L.J. 5 C. P. D. 5 Ex. 77n. 20 L. J. Ex. 2. See further at p. 307. at end of this chapter. (k) Popleit \. StccMale (1825) R. {m} An agreement to commit a & M. 337, 2 C. & P. 198, 31 R. R. 662. civil injury is a conspiracy in many, (Z) If A. contracts with B. to do but it seems imjwssible to say pre- something which in fact, but not to eisely in what, cases. See the title B.'s knowledge, would involve a breach of Conspiracy in Roscoe's Digest, (ed. of contract or trust, A. cannot law- Horace Smith, 1884). An agreement fully perform his promise, but yet to commit a trespass likely to lead to niav well be liable in damages for the a breach of the peace, Reg. v. Roic- breach. Millwardv. Littleicood (1850) lands (1851) 17 Q. B. 671, 686, 21 L. SRitter v. Mutual Life Ins. Co., 169 U. S. 139. Cp. Ivnights Templars Co. V. Jarman, 18 U. S. 197 : Seller r. Economic Life Assoc, 105 la. 87 ; Morris V. State Mut. L. Assur. Co., 183 Pa. 563; Patterson v. Natural Premium Ins. Co., 100 Wis. 118. S'o in Burt v. L'nion Central Ins. Co., 187 U. S. 302, Avhere a man com- mitted a murder and thereafter assigned a policy on his life and Avas sub- sequently executed, it was held that the assignee could not recover on the policy. 4 So an agreement to reprint a literary work, in violation of a copyright secured to a third person, is void. Nichols r. Ruggles, 3 Day, 145. 5 In Church r. Proctor, 66 Fed. Rep. 240, it was held a good defense to an agreement for the sale of menhaden that the buyer intended to pack and sell them as mackerel. See also Materne v. Horwitz, 101 N. Y. 469; Blakely v. Sousa, 197 Pa. 305. 6 Thus in Guernsey r. Cook, 120 Mass. 501, the court held illegal a contract between two stockholders Avho together owned a majority of the stock of a corporation, that the plaintiff should be made treasurer of that company at a stipulated salary; the plaintiff on his part agreeing to take part of their stock at par. with an agreement that it should be taken back, and an allowance made for interest. " in case it should be desirable for anv reason to dispense with the plaintiff's service as treasurer." To similar eflfect are West V. Camden, 135 U. S. 507: Noel v. Drake. 28 Kan. 265: Noves r. Marsh. 123 Mass. 2S6: Woodruff ;•. Wentworth. 133 Mass. 309; Wilbur r. Stoepel, 82 Mich. 344; Cone v. Russell, 48 N. J. Eq. 208; Fenness v. Ross„ AGREEMENTS IN FRAUD OF CREDITORS, 377 B. to advance him the price of certain goods which he wants to buy of C. B. treats with C. for the sale, and pays a sum agreed upon between them as the price. It is secretly agreed between A. and C. that A. shall pay a further sum : this last agreement is void as a fraud upon B., whose intention was to relieve A. from paying any part of the price {n)J Again, A. and B. are interested in common with other persons in a transaction the nature of which requires good faith, on all hands, and a secret agreement is made between A. and B. to the prejudice of those others' interest. Agreement in fraud of creditors is void. Such are in fact the cases of agreements " in fraud of creditors " ; that is, where there is an arrangement between a debtor and the general body of the creditors, J. M. C. 81— or to commit a civil [1901] A. C. 395, 70 L. J. P. C. 76. wrong by fraud and false pretences. Before the C. L. P. Act a court of Reg. V. iVarburton (1870) L. R. 1 C. common law could not take notice of C. R. 274, 40 L. J. M. C. 22, cp. Reg. an agreement being in breach of trust V. Aspinall (1876) 2 Q. B. Div. at p. so as to hold it illegal: Wartcick v. 59, 46 L. J. M. C. 145— is a con- Richardson (1842) 10 M. & W. 284, spiraey. An agreement to commit a and agreements to indemnify trustees simple breach of contract is not a against formal breaches of trust are conspiracy. See on the whole sub- in practice constantly assumed to be ject. Mogul Steamship Co. v. Me- valid in equity as well as law. Oregor, Gow d Co. [1892] A. C. 25,61 (») Jackson v. Duchaire (1790) 3 L. J. Q. B. 295; Quinn v. Leathern, T. R. 551. 5 N. Y. App. Div. 342; Snow v. Church, 13 N. Y. App. Div. 108; Gage V. Fisher, 5 N. Dak. 297; Withers v. Edwards, (Tex.) 62 S. W. Rep. 795. See also Blue v. Capital Nat. Bank, 145 Ind. 518; Fuller r. Dame, 18 Pick. 472; MeClure r. Law, 161 N. Y. 78; Gilbert v. Finch, 173 N. Y. 455; Wood v. Manchester, etc., Co., 54 N. Y. App. Div. 522; Flaherty v. Carv, 62 N. Y. App. Div. 116, 172 N. Y. 646. But compare Greenwell r. Porter, [1902] 1 Ch. 530; Almy v. Orme, 165 Mass. 126; Gassett v. Glazier, 165 Mass. 473; Seymour v. Detroit, etc.. Mills, 56 Mich. 117; Barnes r. Brown, 80 N. Y. 527; Bonta V. Gridley, 77 N. Y. App. Div. 33. So a contract by a railroad construction company (bound to lay a railroad by the nearest and best route) by which it agrees for a valuable consideration to lay the road through a town not on the direct line is illegal. Woodstock Iron Co. r. Richmond & Dansville Extension Co., 129 U. S. 643. To similar effect are Heirs of Burney v. Ludeling, 47 La. Ann. 73, 96: Lum v. McEwen, 56 Minn. 278. Compare the following decisions in regard to the location of public buildings. Fearnley r. De Mainville, 5 Col. App. 441; Woodman v. Innes. 47 Kan. 26: Beal r. Polheraus. 67 Mich. 130. Other illustrations of the general doctrine of the text may be found in Jackson v. Ludeling, 21 W^all, 616; Oscanyan v. Arms Co., 103 U. S. 261; Forbes v. ]\IcDonald, 54 Cal. 98: BrowTi r. Brown, 66 Conn. 493; Rice v. Wood, 113 Mass. 133; Woodruff r. Wentworth, 133 Mass. 309: Spinks r. Davis, 32 Miss. 152: Cone's Exec. r. Russell. 48 N. J. Eq. 208: Glenn v. Mathews, 44 Tex. 400: Foote r. Emerson, 10 Vt. 338. Cp., however. Barnes v. Brown, 80 N. Y. 527 : Rohison t\ McCracken, 52 Fed. Rep. 726, and the decisions in some States which hold nn agreement binding between the parties thouarh it contem- plates as part of the transaction a conveyance in fraud of creditors. Har- crow V. Harcrow. 69 Ark. 6; Stillings V. Turner, 153 Mass. 534; Still v. Buzzell. 60 Vt. 478. TPatton r. Taft, 143 Mass. 140. 378 UXLAWFUL AGREEMENTS. but in order to procure the consent of some particular creditor, or for some other reason, the debtor or any person on his behalf, or with his knowledge (o),^ secretly promises that creditor some advantage over the rest. All such secret agreements are void : securities given in pursuance of them may be set aside, and money paid under them ordered to be repaid (p).^ 280 ] * Other creditors not bound by the composition. Moreover, the other creditors who know nothing of the fraud and enter into the arrange- ment on the assumption " that they are contracting on terms of equal- ity as to each and all " are under such circumstances not Ijound by any release they give (q).^'^ And it will not do to say that the underhand (o) Equality among the creditors out of the debtor's funds or not. Ex is of the essence of the transaction. parte Milner (1885) 15 Q. B. Div. Any agreement to give a preference, G05, 54 L. J. Q. B. 425. made with the debtor's privity, (p) McKewan v. Sanderson (1873) strikes at the root of the deed. It is L. R. 15 Eq. at p. 234, per Malins immaterial whether the arrangement V.-C. 42 L. J. Ch. 296. is under a statute or not, and whether {q) Dauglish v. Tennent (186G) L. the preferential payment is to come R. 2 Q. B. 49, 54, 36 L. J. Q. B. 10. s Clarke r. White. 12 Pet. 178, 199; Smith r. Owens, 21 Cal. 11; Kullman V. Greenebaum, 92 Cal. 403; Clement's Appeal, 52 Conn. 464; Cary v. Hess, 112 Ind. 398; Morrison r. Schlesinger, 10 Ind. App. 665; Cheveront v. Textor, 53 Md. 295; Case V. Gerrish, 15 Pick. 49: Lothrop V. King, 8 Cush. 382; Sternberg r. Bowman, 103 Mass. 325: Harvey i". Hunt, 119 Mass. 279; Huckins v. Hunt, 138 Mass. 366; Tirrell r. Freeman, 139 Mass. 297: Brown V. Xeallev, 161 Mass. 1: Vreeland r. Turner. 117 Mich. 366: Newell r. Higgins. 55 Minn. 82; O'Shea r. Collier, etc.. Co., 42 Mo. 397: Trumbull r. Tilton, 21 X. H. 128: Winn r. Thomas. 55 X. H. 294: Feldman r. Gamble. 26 X. -J. Eq. 494; Lawrence r. Clark, 36 X. Y. 128; Bliss r. Matteson. 45 X. Y. 22; Patterson r. Boehm, 4 Pa. 507; Stuart V. Blum, 28 Pa. 225: Lee V. Sellers, *81 Pa. 473; Dansbv r. Frieberg, 76 Tex. 463. See also Bank v. Ohio Buggy Co., 110 Ala. 360;'Lobdell r. Bank, 180 111. 56. Where a composition agreement Avas made, by the terms of which the debtor was to give his notes for a percentage of his indebtedness, and he afterwards voluntarily gave to one of his debtors, party to the composition agreement, notes for the balance of his claim, which by their terms would mature before the composition notes, the notes last given were held void. Wav V. Langlev, 15 Ohio St. .392. 9'Bcan V. Brnokmire. 2 Dill. 108: Bean r. Amsinck, 10 Blatchf. 361 (not aflected as to the general rule bv the reversal in 22 Wall. 395) : Fairbanks v. Bank, 38 Fed. Rep. 630: Brown "^r. Everett, et'^., Co., Ill Ga. 404: Crosslev r. Moore, 40 X. J. L. 27. Sureties on composition notes are released bv such a secret agreement. Powers Dry Goods Co. r. Harlin. 68 Minn. 193. 10 They may sue for and recover the full amount of their original claims less the amount received under the composition agreement. Kullman v. Greene- baum. 92 Cal. 403: WondruflF v. Saul. 70 Ga. 271: Knhn r. Gumlx>rts. 9 Ind. 430: Partridge r. "Messer, 14 Grav. 180: Powers Drv Goods Co. r. Harlin. 68 Minn. 193: Bank of Commerce r. Hoeber. 88 :\ro. 37;'White r. Kuntz, 107 X. Y. ."118. 525. And it is not essential to the riffht of action that the creditor should first return the monev he has received under the compensation agreoment. Cobb r. Tirrell. 137 Mass.' 143: Hefter r. Cahn. 73 111. 296: Stuart r. Blum. 28 Pa. 225; Bank r. Hoeber, 8 Mo. App. 171. In Bartlett v. Blaine, 83 111. 25, it was AGREEMENTS IN FRAUD OF CREDITORS. 379 bargain was in fact for the benefit of the creditors generallj', as where the preferred creditor becomes surety for the payment of tiie compo- sition, and the real consideration for this is the debtor's promise to pay his own debt in full; for the creditors ought to have the means of exercising their own judgment (r).^^ But where one creditor is induced to become surety for an instalment of the composition by an agreement of the principal debtor to indemnify him, and a pledge of part of the assets for that purpose, this is valid: for a compounding debtor is master of the assets and may apply, them as he will (s). The principle of these rules was thus explained by Erie J. in MallalieiL v. Hodgson (t) : — " Each creditor consents to lose part of his debt in consideration that the others do the same, and each creditor may be considered to stipulate with the others for a release from them to the del)tor in consideration of the release by him. Where any creditor, in fraud of the agreement to accept the composition, stipulates for a preference to himself, his stipu- lation is altoarcther void — not only can he take no advantage from it, but he is also to lose the benefit of the composition (n.)A^ The requirement of good faith among the creditors and the preventing of gain by agree- ments for preference have been uniformly maintained by a series of cases from Leicester v. Rose (x) to Hoioden v. Haigh (u) and Bradshaio v. Bradshaw " {y) . From the last cited case (y) it seems proi)able, though *it is [281 not decided, that when a creditor is induced to join in a composition by having an additional payment from a stranger without the knowl- edge' of either the other creditors or the debtor, tlie debtor on dis- covering this may refuse to pay him more than with such extra pay- ment will make up his proper share under the composition, or may (r) Wood V. Barker (1865) L. R. 1 (m) (1840) 11 A. & E. 1033; 52 Eq. 139. R. R. 579. (s) Ex parte Burrell (1876) 1 Ch. (x) (1803) 4 East. 372: showing Div. 537, 45 L. J. Bk. 68. that the advantage given to the pre- (t) (1851) 16 Q. B. 689, 20 L. J. ferred creditor need "not be in money. Q. B. 339, 347. See further Ex parte [ij) (1841) 9 M. & W. 29. Oliver (1849-51) 4 De G. & Sm. 354. held that " where a party induced a creditor to sign a composition agree- ment, whereby he accepted one-half of his claim in full, upon the representa- tions of his debtor that no person had received any other thing, etc., the fact that the debtor had given his note for five hundred dollars to induce another creditor to sign the same agreement, which note, upon suit thereon, was adjudged void, is not sufficient to avoid the contract of composition, as it worked no injury to the creditor." This decision is believed to be wrong, as each creditor has a right to rely upon the unbiased judgment of every other as to the advisability of becoming a party to the proposed agreement of composition, and the purchased assent of one creditor is a fraud upon the others. 11 Baldwin v. Rosenman. 49 Conn. 105. 12 Doughty V. Savasre. 28 Conn. 146: Huntington r. Clark. 39 Conn. 540. 554; Frost r. Oajre. 3 Allen. 560; Mosos r. Kntzenhereer, 1 Handy, 46. But «ee contra, Hanover Nat. Bank v. Blake, 142 N. Y. 404. 380 UNLAWFUL AGREEMENTS. even recover back the excess if he has paid it involuntarily, e. g. to lona fide holders of bills given to the creditor under the com- position.^^ A debtor who has given a fraudulent preference can claim no benefit under the composition even as against the creditor to whom the preference has been given (z).^* A secret agreement by a creditor to withdraw his opposition to a bankrupt's discharge or to a composition is equally void/^ and it does not matter whether it is made with the debtor himself or with a stranger (fl)/^ nor whether the consideration offered to the creditor for such withdrawal is to come out of the debtor's assets or not (h) ; and this even if it is part of the agreement that the creditor shall not prove against the estate at all (c). In like manner if a debtor ex- ecutes an assignment of his estate and effects for the benefit of all his creditors upon a secret agreement with the trustees that part of the assets is to be returned to him, this agreement is void (d). We have here at an early stage of the subject a good instance of the necessarily approximate character of our classification. We have placed these agreements in fraud of creditors here as being in effect (z) Biggins v. Pitt {1$49) 4 Ex. (c) McKewan x. Sanderson (1875) 312, 18 L^ J. Ex. 488. L. R. 20 Eq. 65, 42 L. J. Ch. 296. (a) Eipqins v. Pitt, last note. (d) Blacklockv. Dohie (1876) 1 C. (h) Ball v. Diison (1852) 17 Q. B. P. D. 265, 45 L. J. C. P. 498. 785, 21 L. J. Q. B. 224. ]3If a creditor receives a secret advantage from a stranger without the authority but with the knowledge of the debtor the composition may be avoided." Kullman v. Greenebaimi. 92 Cal. 403; Bank of Commerce v. Hoeber, 88 Mo. .37; Solinger r. Earle, 82 N. Y. 393. See also Coleman r. Waller, 3 Y. & J. 212; Knight v. Hunt, 5 Bing. 432; Ex parte Milner, 15 Q. B. D. 605: Pe Sawyer. 14 N. B. Reg. 241; Brown r. Xealley, 161 Mass. 1. Compare Continental Nat. Bank v. McGeoch, 92 Wis. 28G. If the debtor is ignorant of the advantage given by a third person to one creditor, other creditors cannot avoid the composition. Martin V. Adams, 81 Him, 9. See also Ex parte Milner, 15 Q. B. D. 605; Bank of Commerce v. Hoeber. 88 Mo. 37, 44. 14 ]f the debtor has been released, the release is valid against such a creditor. Huckins r. Hunt, 138 Mass. 366; White r. Kimtz, 107 N. Y. 518. Cp. Walker r. Mavo, 143 Mass. 42. i5Xat. Bankruptcy Act, 1867, R. S. U. S., § 5131; Austin r. Markham, 44 Ga. 161: MarbleV Grant, 73 Me. 423: Blasdcl r. Fowle. 120 Mas*. 447; Tirrell v. Freeman, 139 Mass. 297; Tinker r. Hurst. 70 Mich. 159: Rice r. Maxwell, 13 S. & M. 289; Sharp v. Teese. 4 Halst. 352: Pa\Tie v. Eden. 3 Caines. 213; Bruce r. Lee, 4 Johns. 410: Yeomans r. Chatterton. 9 Johns. 295; Wiggin v. Bush, 12 Johns. 305; Tuxbury v. Miller, 19 Johns. 311; Dansby r. Frieberg, 76 Tex. 463. An agreement for a consideration to vote for a particular person as assignee is illegal. Eaton v. Littlefield, 147 Mass. 122. ifi Frost r. Gage. 3 Allen, 560; Bell v. Leggett, 7 N. Y. 176. See also Ee Dietz, 97 Fed. Rep. 563. FRAUD OX TIIIltD PERSONS. 381 agreements to commit civil injuries. But a composition with cred- itors is in most cases something more than an ordinary civil contract; it is in truth a quasi-judicial proceeding, and as such is to a certain extent assisted ])y the law {e).^'^ Public policy, *therefore, as [282 well as private right, requires that such a proceeding should be con- ducted with good faith and that no transaction which interferes with equal justice being done therein should be allowed to stand. Fraud on third parties not to be presumed from mere possibilities. The doctrine of fraud on third parties, as it may be called, is however not to be extended to cases of mere suspicion or conjecture. A possibility that the performance of a contract may injure third persons is no ground for presuming that such was the intention, and on the strength of that presumed intention holding it invalid between the parties themselves. " Where an instrument between two parties has been entered into for a purpose which may be considered fraudulent as against some third person, it may yet be binding, according to the true construction of its language, as between themselves."' Nor can a supposed fraudulent intention as to third persons (in- ferred from the general character and circumstances of a transaction) be allowed to determine what the true construction is (/). 3. Certain cases of analogous nature as involving " fraud on third persons." There are certain cases analogous enough to the foregoing to call for mention here, though not for any full treatment. Their general type is this: There is a contract giving rise to a continuing relation to which certain duties are incident by law; and a special sanction is provided for those duties by holding that transactions inconsistent with them avoid the original contract, or are themselves voidable at the option of the party whose rights are infringed. We have results of this kind from (a) Dealings between a principal debtor and creditor to the preju- dice of a surety : (b) Dealings by an agent in the business of the agency on his own account : (c) Voluntary settlements before marriage "in fraud of marital rights." (e) Bankruptcy Act, 1833, ss. 18, (f) Shaw v. Jeffery (1860) 13 19. Since this Act there is a nota- Moo. P. C. 432, 455. "hie increase of private compositions independent of the Act. 17 See Nat. Bankruptcy Act, 1898, §§ 12, 13, 14c. 382 UNLAWFUL AGREE]\IEXTS. 283] *Iii the first case the improiDcr transaction is as a rule valid in itself, but avoids the contract of suretyship. In the second it is void- able as between the principal and the agent. In the third it is (or was) voidable at the suit of the husband. (a) Dealings between principal creditor and debtor to prejudice of surety. ''Any variance made without the surety's consent in the terms of the contract between the principal debtor and the creditor discharges the surety as to transactions subsequent to the variance" (g), unless it is evident to the Court " that the alteration is unsubstantial, or that it cannot be otherwise than beneficial to the surety" (h).^^ The surety is not the less discharged " even though the original agreement may notwithstanding such variance be substantially performed" (i). An important application of this rule is that " where there is a bond of suretyship for an officer, and by the act of the parties or by Act of Parliament the nature of the office is so changed that the duties are materially altered, so as to affect the peril of the sureties, the bond is avoided" (1')^^ But when the guaranty is for the performance (g) Indian Contract Act, s. 133. (k) Osirald v. Mayor of Berwick- (7i) Holme v. Brunskill (1877) 3 on-Ticced (1856) 5 H. L. C. 85G, 25 Q. B. Div. 495 (diss. Brett L.J.), L. J. Q. B. 3SZ: Pi/hus x. Gihb (1846) overrulino' on tliis point Sanderson V. 6 E. & B. 902, 911. 20 L. J. B. 41: AsfoJi (1873) L. R. 8 Ex. 73, 42 L. J. Maijor of Camhridf/e v. Dennis Ex. 64. (1S5S) E. B. & E. GCO, 27 L. J. Q. B. ( i ) Per Lord Cottenham, Bonar v. 474. Macdonald (1850) 3 H. L. C. 220, 238. 18 Board v. l^ranham, 57 Fed. Rep. 179. "The law requires that if there is any agreement between the principals with reference to a contract to the performance of which another is bound as surety, he ought to be consulted in regard to any proposed alteration, and if he is not or does not consent to the alteration he will be no longer bound, and the court will not inquire whether it is or not to his injury." Paine r. Jones, 70 X. Y. 274. 27S; Reese v. United States, 9 Wall'. 1.3, 21; Bank r. United States, 164 U. S. 227; United States Glass Co. v. West Virginia Flint Co.. 81 Fed. Rep. 993, 995: O'Neal v. Kellv, 65 Ark. 550; Driscoll r. Winters. 122 Cal. 65: Rowan v. Sharp's Rifle :Mfg. Co., 33 Conn. 1. 23: Weir Plow Co. r. W^almsley. 110 Ind. 242; Stillman v. Wickhani. 100 la. 597; Warren r. Lvons, 152 Mass, 310; Fidelity Assoc, r. Dewey, 83 :Minn. 389; Page r. Krekey, 137 N. Y. 307. 314; Antisdel r. Williamson, 165 N. Y. 372, 375; Ide v. Ciiurchill, 14 Ohio St. 372, 384 ; Bensinger v. Wren, 100 Pa. 500. The surety's assent, if given in advance, is binding upon him. Kretschmar V. Bruss, 108 Wis. 396. A surety is not discharired bv an independent collateral a£rreenient. net injurious to him. Glass Co! r. Mathews. 89 Fed. Rep. 828, S.^l ; Bank r. Hvd". 1.31 Mass. 77; Stuts t: Straver. 60 Ohio St. 384. 19 Miller r. Stev>-art. 9 Wheat. 680; United States v. Free!, 186 U. S. 309; Gass r. Stin«on. 2 Sumner. 453; United States v. Cheesemin. 3 Sawyer. 424: Reynolds r. Hall. 1 Sr-am. 35; People r. Tompkins. 74 111. 482: Roman r. Peters. 2 Rob. (La.) 479; Fir-t Bnnk r. Gerke. 68 ^Ul. 449; Plunkett r. Davis Co., 84 Md. 529; Boston Hat Jlanufaetory r. Messinger, 2 Pick. 223; Denio v. DEALINGS niEJUDICIAL TO SURETY. 383 of several and distinct duties, and there is a change in one of them, or if an addition is made to tlie duties of the principal debtor by a distinct contract, the surety remains liable as to those which are unaltered (l).^^ The following rules rest on the same ground: " The surety is discharged by any contract between the creditor and the principal debtor by which the principal debtor is released, or by any act or omission of the creditor *the legal consequence of [284 which is the discharge of the principal debtor" (m).-^ "A contract between the creditor and the pricipal debtor, by which the creditor makes a composition with, or promises to give time to or not to sue the principal debtor, discharges the surety,^- unless the (1) Harrison V. Seymour (1866) L. Cole (1846) 16 M. & W. 128, 16 L. R. 1 C. P. 518, 35 L. J. C. P. 264; J. Ex. 115; Cragoe v. Jones, (1S73) Skillett V. Fletcher (1866) L. R. 1 C. L. R. 8 Ex. 81, 42 L. J. Ex. 68. The P. 217, 224. in Ex. Cli. 2. C. P. 469, discharge extends to any security 36 L. J. C. P. 206. fjiven bv the suretv: Bolton V. Salmon {m) I. C. A. s. 134. Kearsley v. [1891] '2 Ch. 48. 60 L. J. Ch. 239. State, 60 Miss. 949; Blair r. Insurance Co.. 10 Mo. 559; Bank r. Diekerson, 41 N. J. L. 448; Kellogg v. Scott. 58 N. J. Eq. 344; Nat. Mechanics' Banking Assn. V. Conkling, 90 N. Y. 110; American Telegraph Co. r. Lennig. 139 Pa. 594: Munford r. Railroad Co., 2 Lea, 393. And see White v. East Sag- inaw, 43 Mich. 507. 20 See Gaussen c. United States. 97 U. S. 584 : Garnett r. Farmers' Bank. 91 Ky. 614; State v. Swinnev. 60 Miss. 39: Bank r. Traube, 75 Mo. 199; Bank Supervisors v. Clark, 92*N. Y. 391; Major v. Kelly, 98 N. Y^ 467; Daw- son V. State, 38 Ohio St. 1; Lane's Appeal, 105 Pa. 49; Shaekamaxom Bank r. Yard, 150 Pa. 351; Harrisburg Assoc, v. United States Fidelity Co., 197 Pa. 177: Commonwealth r. Holmes, 25 Gratt. 771: Ames. Cas. Suretyship, 274. n. Or if only an additional amount of duty is added, not amounting to a change in the nature of the office, the sureties remain lial'le. United States v. Gaussen. 2 Woods, 92: Smith r. Peoria Co., 59 111. 412: Commonwealth v. Gabbert's Admr., 5 Bush, 438; Strawbridge r. Railroad Co., 14 Md. 360; People v. Vilas, 36 N. Y. 459; King v. Nichols, 16 Ohio St. 80. 21 Trotter r. Strong. 63 111. 272; Sohier r. Loring. 6 Cush. 537: Bingham V. Wentworth. 11 Cush. 123: Moore v. Paine, 12 ^Vend. 123; Eichelberger V. Morris, 6 Watts, 42. " The consent of the surety to the release of the principal prevents such release operating as a discharge of the surety." OssTood r. Miller, 67 Me. 174. 22 Bank V. Hatch. 6 Pet. 250: Cox v. Railroad Co., 44 Ala. 611: Stewart V. Parker, 55 Ga. 656: Mevers v. Bank, 78 111. 257; White v. Whitnev. 51 Tnd. 124: Chickasaw Co. r. Pitcher. 36 la. 593: Lambert v. Shitlor. C^'2 la. 72; Hubbard r. Ogden, 22 Kan. 363: Andrews v. Marrett. 58 Me. 539: Dixon i\ Spencer. 59 Md. 246: Farnsworth r. Coots. 46 !Mich. 117: Campion r. Whitney, 30 Minn. 177: Stilwell r. Aaron. 69 Mo. 539: Wild r. Howe, 74 Mo. 551; Haskell r. Burdette. 35 N. J. Eq. 31: Ducker r. Rapp. 67 N. Y. 464: Calvo v. Davies. 73 N. Y. 211; Prarie v. Jenkins, 75 N. C. 545; Carter V. Duncan. 84 N. C. 676: Forbes v. Sheppard. 98 N. C. Ill: Bank v. Lucas. 26 Ohio St. 385: Osborn r. Low, 40 Ohio St. 347; Apnerson r. Cross, 5 Heisk. 481; Dey v. Martin. 78 Va. 1; Sayre r. King. 17 W. Va. 562; Weed Co. r. Oberreich, 38 Wis. 325. As to the application of this doctrine where a mnrt2'n£i'ee gives time to one who has assunipd the mortgage, see ante, p. 261. To release the surety by agreement to give rhve. the agreement must be for an extension for a definite time. King r. Haynes, 35 Ark. 463; Gardner r. :38-i UNLAWFUL AGREEMENTS. •6urcty assents to such contract" {n),^ or unless in such contract the ■ creditor reserves his rights against the surety (o),"^ in which case the (n) I. C. A. s. 135. Oakeley v. Gosling (1871) L. R. 7 C. P. 9, 41 Pasheller (1836) 4 CI. & F. 207, 10 L. J. C. P. 53. It must be a binding Bli. N. S. 548, 42 R. R. 1 ; Oriental contract with the principal debtor : Financial Corporation v. Overend, Clarke v. Birley (1889) 41 Ch. D. Gurney <9 Co. (1874) L. R. 7 H. L. 422, 434, 58 L. J. Ch. 616. 348; Green v. Wynn (1869) L. R. 4 (o) Whether the surety knows of Ch. 204, 38 L. J. Ch. 220; Bateson v. it or not: Webb v. Heunit (1857) 3 Watson, 13 111. 347; Menifee v. Clark, 35 Ind. 304; Bucklen V. Huff, 53 Ind. 474; Morgan v. Thompson, 60 la. 280; Way v. Dunham, 166 Mass. 263; Free- land V. Comptcn, 30 Miss. 424; McCormick, &c. Co. v. Rae, 9 N. Dak. 482; Ward V. Wick, 17 Ohio St. 159; Edwards v. Bedford Chair Co., 41 Ohio St. 17; Hayes v. Wells, 34 Md. 512; Bank v. Legrand, 103 Pa. .'J09. If a surety who has been discharged by indulgence to the principal after- wards with knowledge of the facts promises to pay, his promise is binding Avithout a new consideration. Porter r. Hodenpuvl, 9 Mich. 11; Fowler v. Brooks, 13 N. H. 240; Bramble r. Ward, 40 Ohio St!" 267 ; Churchill r. Bradley, -58 Vt. 403. Contra, Walters v. Swallow, 6 Whart. 446. And see Warren v. Fant, 79 Kv. 1. See further Ames's Cas. Suretyship, 227, n.; 2 Ames's Cas. B. & K 504' n. An agreement by the creditor to give time procured by the debtor upon the fraudulent representation that the surety consents thereto may be avoided by the creditor upon discovery of the fraud, leaving the surety liable. Allen r. Sharpe, 37 Ind. 67 ; Kirby v. Landis, 54 la. 150 ; Dwinnell r. McKibben, 93 la. 331; Douglass v. Ferris, 138 N. Y. 192; Bebout v. Bodle, 38 Ohio St. 500; Bank r. Field, 143 Pa. 473; First Bank v. Buchanan, 87 Tenn. 32; McDougall r. Walling, 15 Wash. 78. The fact that the creditor assented to a discharge in bankruptcy of the principal debtor has generally been held not to release a suretv. Browne r. Carr, 7 Bing. 508; Megrath r. Gray, L. R. 9 C. P. 216; Ellis v. Wilmot, L. R. 10 Ex. 10; Ex parte Jacobs, L. R. 10 Ch. 211 (overruling Wilson r. Lloyd, L. R. 16 Eq. 60; Ee Burchell, 4 Fed. Rep. 406; Guild t\ Butler, 122 Ivlass. 498; Mason & Hamlin Co. r. Bancroft, 1 Abb. N". C. 415; Hill v. Trainer, 49 Wis. 537. But see contra. Re McDonald. 14 B. R. 477; Calloway V. Snapp. 78 Ky. 561: Union Xat. Bank r. Grant. 48 La. Ann. 18. In Cilley v. Colby, 61 N. H. 63, even though it was found as a fact that the assent of the plaintiflf was necessary to make the required amount to confirm a composition in bankruptcy of the principal debtor it was held the surety was not discharged. In Phelps r. Borland, 103 N. Y. 406, however, a surety was held discharged by the action of the creditor in taking part in a foreign bankruptcy of the principal debtor and thereby making the debt subject to the foreign discharge. See also Third Bank r. Hastings, 13'4 X. Y. 501'. 505. -SGrav's Exrs. v. Brown. 22 Ala. 262: Rockville Bank r. Holt, 58 Conn. .'526: Baiik r. Whitman, 66 111. 331; Crutcher r. Trabne, 5 Dana. SO: Treat r. Smith, 54 Me. 112: Hutchinson r. Wright, 01 X. H. 108: Kuhlman v. Leavens. 5 Okl. 562; Van Home r. Dick, 151 Pa. 341; SaMwer r. Senn, 27 S. C. 251; Bowling r. Flood, 1 Lea. 678. Xor will the surety be discharged where the principal has indemnified him bv giving ample collateral security. Chilton v. Bobbins, 4 Ala. 223: WMlson r. Tibbetts, 29 Ark. 579: Moore '?-. Paine, 12 Wend. 123; Kleinhaus r. Generous. 25 Ohio St. 667; Smith r. Steele," 25 Vt. 427; Fay r. Tower. 58 Wis. 286; Jones r. Ward. 71 V7is. 152. It was held in Guderian ?'. Leland, 61 Minn. 67, and Bramble r. Ward. 40 Ohio St. 267, that the burden of nroof was upon the surety to show that he (lid not assent. But see contra. INIimdy V. Stevens. 61 Fed. Rep. 77: L^nited Stntes r. M'Intvre. Ill Fed. Rep. 590 ;" Menke v. Gerbracht. 75 Hun. 181. 24 Hodges V. Elyton Land Co., 109 Ala. 617. Cp. Elyton Co. v. Hood, 121 Ala. 373. DEALINGS PREJUDICIAL TO SURETY. 385 surety's right to be indemnified by the principal debtor contin- ues (p).^^ One reported case constitutes an apparent exception to the general rule, but is really none, as there the nominal giving of time had in substance the effect of accelerating the creditor's remedy (q).^^ The rule applies as against a creditor of two principal debtors of whom one has become primarily liable as between themselves, whether the creditor assents to the arrangement or not, provided he has notice of it (r). " If the creditor does any act which is inconsistent with the rights of the surety, or omits to do any act which his duty to the surety re- quires him to do, and the eventual remedy of the surety himself against the principal debtor is thereby impaired, the surety is dis- charged" (s).^ *"A surety is entitled to the benefit of every security which the [285 creditor has against the principal debtor at the time when the contract of suretyship is entered into, whether the surety knows of the exist- K. & J. 438, 442: and see per Lord affirmed [1894] A. C. 586, 63 L. J. Hatherley, L. R. 7 Ch. L50. Ch. 890. ip) Close V. Close (1853) 4 D. M. (s) I. C. A. s. 139 (=Storv, Eq. & G. 176, 185. Jur. § 325 nearly) ; Watson v. Allcock ig) Hulme V. Coles (1827) 2 Sim. (1853) 4 D. M. & G. 242, supra, p. 12, 29 R. R. 52. 179; Burgess v. Eve (1872) L. R. 13 (r) Oakeley v. Pasheller (note(n) Eq. 450, 41 L. J. Ch. 515; Phillips v. above) as discussed and explained in Foxall (1872) L. R. 7 Q. B. 666, 41 L. Ro^l.se v. Bradford Bkg. Co. [1894] J. Q. B. 293; Sanderson v. Aston 2 Ch. 32, 63 L. J. Ch. 337, C. A.: (1873) L. R. 8 Ex. 73, 42 L. J. Ex. 64. 25Rockville Bank v. Holt, 58 Conn. 526; Mueller v. Dobschuetz, 89 III. 176; Jones v. Sarchett, 61 la. 520; Dean r. Rice, 63 Kan. 691; Claggett V. Salmon, 5 Gill & J. 314, 353; Sohier v. Loring, 6 Cush. 537; Kenworthy v. Sawyer, 125 Mass. 28; Richardson r. Pierce, 119 Mass. 165; Hubbell v. Car- penter, 5 N. Y. 171; Morgan r. Smith, 70 N. Y. 537; Bank v. Lineberger, 83 N. C. 454; Hagey l\ Hill, 75 Pa. 108; Viele v. Hoag, 24 Vt. 46; Ames's Caa. Suretyship, 150, n. 26Suydam v. Vance, 2 McLean, 99; Fletcher v. Gamble, 3 Ala. 335; Barker r. MeCiure, 2 Blackf. 14; Hallett v. Holmes, 18 Johns. 28; Upington v. May, 40 Ohio St. 247; Gardner r. Van Nostrand, 13 Wis. 543. 2T White r. Life Assn. of America, 63 Ala. 419; Roberts r. Donovan, 70 Cal. 108; Railroad Co. r. Gow, 59 Ga. 685; Walsh v. Colquitt, 64 Ga. 740: Gradle v. Hoffman, 105 111. 147; Estate of Rapp v. Plwnix Ins. Co.. 113 111. 390; Insurance Co. v. Scott, 81 Kv. 540: Clow v. Derbv Coal Co., 98 Pa 432. In the case of guaranty of the conduct of an employe, the surety is not discharged by the employer's omission to notify him of "the employe's default and thereafter continuing him in his service, unless the default is of a nature indicating a want of integrity in the emplove. Williams r. Lyman, 88 Fed. Rep. 237; Insurance Co. v. Holway, 55 la. 571; Insurance Co. V Findley, 59 la,. 591; Insurance Co. r. Simmons, 131 Mass. 85; Cumberland Assoc, v. Gibbs, 119 Mich. 318; MoKecknie r. Ward, 58 N". Y. 541; Telegraph Co r Barnes, 64 N. Y. 385; Riilroad Co. r. Ling, 18 S. C. 116; Railroad Co! v. Casey, 30 Gratt. 218; cp. infra, p. 660. 25 386 UNLAWFUL AGREEMENTS. ence of such security or not ; and if the creditor loses or without the consent of the surety parts with such security, the surety is discharged to the extent of the value of the security " (f).^^ Xot only an absolute parting with the security, but any dealing with it, such that the surety cannot have the benefit of it in the same condition in which it existed in the creditors hands, will have this effect (u). For the same reason, if there be joint sureties, and the debtor releases one, it is a release to all; otherwise if the sureties are several (x). (b) Dealings ty agent in the matter of the agency on his own account. " If an agent deals on his own account in the business of the agency without first obtaining the consent of his principal and acquainting him with all material circumstances which have come to his own knowledge on the subject, the principal may repudiate the trans- action " (y). it) I. C. A. s. 141. Mayhew v. Criekett (1818) 2 Swanst. 185. 191, 19 R. R. 57, Gl; Wulff v. Jay (1872) L. R. 7 Q. B. 756, 702, 41 L. J. Q. B. 322; Bechervaise v. Lewis (1872) L. R. 7 C. P. 372, 41 L. J. C. P. 161 : se- curities now subsist notwithstandiiifj pajTuent of the debt for tlie benefit of a surety who has paid, Merc. Law Amendment Act, 1856, 19 & 20 Vict, c. 97. s. 5. [Such is the prevailing;' doctrine in this country independ- ently of statute. See 1 Wh. & T. L. C. 4th Am. ed. 137 ; Brandt on Guar- anty and Suretyship, § 270. sqq.. Pace V. Pace's Adm. 95 Va. 792. As to dealings between creditor and debtor to the prejudice of a surety, see the A'ery full notes to Deoring v. Earl of Winchelsea, and Rees c. Berrington, C. in Eq.] A right to distrain for rent is not a security or remedy Avithin this enactment: Russrll v. Shoolhred (1885) 29 Ch. Div. 254. 53 L. T. 365. During the currency of a bill of exchange an indorser is not a surety for the acceptor. But after notice of dishonour he is entitled in like manner as if he were a surety to the benefit of all payments made and securities given by the acceptor to the holder: Duncan, Fox & Co. v. ISIorth d South Wales Bank (1880) 6 App. Ca. 1, revg. s. c. in C. A. 11 Ch. Div. 88, 50 L. J. Ch. 355. (m) Pledge v. Buss (1860) Johns. 663. {x) Ward v. Bank of yeio Zealand (1883) (-J. C.) 8 App. Ca. 755, 52 L, J. P. C. 65. iy) I. C. A. s. 215. The Indian Act goes on to add. " if the case show either that any material fact has been dishonestly concealed from him by the agent, or that the dealings of the agent have been disadvantageous to him." but these qualifications are not recognized in English law. See Story on Agencv § 2i0: Ex parte Lacey (1802) 6 Ves. 625, 6 R. R. 9. 28 Kirkpatrick r. Howck, 80 111. 122; Sterne v. McKinney, 79 Ind. 578; Sample v. Cochran. 84 Ind. 594 ; Sherraden v. Parker. 24 Ta. 28 ; Lucas Co. v. Roberts, 49 la. 159; Mingus v. Dougherty. 87 la. 56; Saulet r. Trepagnier, 2 La. Ann. 427 : Springer r. Toothaker. 43 Me. 381 : Cummin^s r. Little. 45 Mo. 183: Baker r. Briggs, 8 Pick. 122: Guild r. Butler. 127 Mass. 386: Bank r. Torrev, 134 Mass. 239; Bank r. Thaver. 136 3>Iass. 459; Nelson v. Mimch, 28 Minn. 314; Nettleton v. Land Co.. 54 Minn. 395; Burr r. Bover, 2 Neb. 265: Bank r. Yoimg. 49 N. H. 457: Kidd r. Hurlev. 54 N. J. Eq. 177: Bank r. Page. 44 N. Y. 453. 457: Grow r. Garlock. 97 N.' Y. 81; Smith r. McLeod. 3 Ired. Eq. 390; Wharton r. Duncan. 83 Pa. 40; Fegiey r. McDonald. S9 Pa. 128; Gillesnie r. Darwin. 6 Heisk. 21. 27; Allen r. Henlv. 2 Lea. 141: Hutton r. Campbell. 10 Lea. 170; ]\hirrell r. Scott. 51 Tex. .520: Ashby r. Smith. 6 Leich. 164: :Morton V. Dillon, 90 Va. 592; Price Co. Bank v. McKenzie, 91 Wis. 658. DEALIXGS BY AGENT AGAINST DUTY. 387 " If an agent without the knowledge of his principal deals in the businc-^ss of the agency on his own account instead of on account of his principal, the principal is entitled *to claim from the agent [286 any benefit which may have resulted to him from the transaction " (2). These rules are well known and established and have been over and over again asserted in the most general terms. The commonest case is that of an agent for sale himself becoming the purchaser, or con- versely : " He wdio undertakes to act for another in any matter shall not in the same matter act for himself.-^ Therefore a trustee for sale shall not gain any advantage by being himself the person to buy." "^ "An agent to sell shall not convert himself into a purchaser unless he can make it perfectly clear that he furnished his employer with (2) I. C. A. s. 216. 29Kingo V. Binns, 10 Pet. 269; Baker r. Humphrey, 101 U. S. 494; Baker r. Whiting. 3 Sumner, 475; Kinlev r. Irvine, 13 Aha. 681: Rogers r. Lockett, 28 Ark. 290; Bownmn r. Officer,' 53 la. 640; Krutz v. Fisher, 8 Kan. 90; Murphv r. Sloan, 24 Miss. 65S; Fulton v. Whitney, 66 N. Y. 548; Bennett r. Austin^ 81 N. Y. 308, 332; Blount c. Robeson. 3 Jones Eq. 73: Pegram r. Rail- road Co., 84 N. C. 696; Wade r. Pettibone, 11 Oliio. 570; Bartholomew v. Leech, 7 Watts, 472; Mever's App., 2 Pa. St. 463: Smith r. Collins. 1 Head, 251. 256: Hendee v. Cleaveland, 54 Vt. 142: McMahon r. McGraw, 26 Wis. 614. An agent to buv, buying for himself, holds in tiust for his principal. Fire- stone v. Firestone, 49' Ala. 128; Church c. Sterling. 16 Conn. 388; Switzer V. Skiles, 8 111. 529; Rose v. Hayden, 35 Kan. 106; Bryan v. ^IcXanghtcn, 3P Kan. 98, Matthews r. Light, 32 Me. 305; King r. Remington, 36 Minn. 15; Le Gendre r. Byrnes, 44 X. J. Eq. 372; Reed r. Warner, 5 Paige, 650; Xoyes V. Landon. 59 Vt. 569; Welford r. Chancellor. 5 Gratt. 39. SOMichoud V. Girod. 4 How. 503; Marsh r. \\ hitmore, 21 Wall. 178: W^alkev r. Palmer, 24 Ala. 358: Kruse r. Steffens, 47 111. 112; Appleton r. Turnbull, 84 Me. 72; McKay r. Williams, 67 Mich. 547; Kimball r. Ranney, 122 ]\Iich. 160; Staats v. Bergen, 17 N. J. Eq. 297, 554: Davoue r. Pfenning, 2 Johns. Ch. 252; Moore r. Moore. 5 X. Y. 256; Gardner r. Ogden, 22 X^. Y. .327; People V. O. B. of S. B. B. Co., 92 X. Y. 98; Piatt r. Lon^worth's Devisees, 27 Ohio St. 159, 195; Caldwell i: Caldwell, 45 Ohio St. 512: Shannon v. IMarmaduke, 14 Tex. 217. A purchase of the svibject-matter of the trust by a trustee, although the 2)urchase be at public auction, for an adequate price, and fair in all respects, will be set aside as of course, at the election of the cesitui que trust, unlessi the latter forfeits his rierlit to relief bv laches or acquiescence. Ih. ; Martin i\ Martin. 12 Ind. 266; :Mason i: Martin. 4 Md. 124: Scott v. Freeland. 7 S. & M. 409: Marshall r. Carson. 38 X^. J. Eq. 250; Brothers r. Brothers. 7 Ired. Eq. 150; Patton r. Tliompson, 2 Jones Eq. 285: Xewcomb r. Brooks, 16 W. Va. 3r?. So of a purchase bv the wife of a trustee. Tvler v. Sanborn, 128 Til. 136: Frazier r. Jeakins, 64 Kan. 615; Bassett v. Shoemaker. 46 X. J. Eq. 538; Davoue r. Fanning. 2 Johns. Ch. 252; Dundas' Appeal. 64 Pa. 325. Cp. Miller v. Weinstein. 52 X. Y. Anp. Div. 533. But where the frustpe purchases from the cestui que trust himself, who is sui juris, and intends that the trustee should buy. and there is no deception, no concealment, and no advantage tnken bv the trustee, the sale will be upheld. Michoud r. Girod. 4 How. 503, 556; Jones r. Llovd. 117 111. 597; Buell r. Buckingham. 16 la. 284; Keighler r. Savage INlfg. Co., 12 Md. 383. 417; Fisher's Appeal. 34 Pa. 29; Spencer's Appeal, 80 Pa. 317. See also Dougan v. Macpherson, [1902] A. C. 197. 388 UNLAWFUL AGREEMENTS. all the knowledge which he himself possessed" (a).^^ " It is an axiom of the law of principal and agent that a broker employed to sell cannot himself become the buyer, nor can a broker employed to buy become himself the seller, without distinct notice to the principal, so that the latter may object if he think proper" (&)."- Similarly an agent for sale or purchase must not act for the other party at the same time or take a' secret commission from him (c). If the local usage of a particular trade or market countervenes this axiom by " converting a broker employed to buy into a principal selling for himself," it cannot be treated as a custom so as to bind a principal (a) Whichcote v. Laiorence (1798) Giffard L.J. 39 L. J. Ch. 536; ^har- 3 Ves. 740; Lowther V. Lowther man v. Brandt (1871) L. R. 6 C^. B. (1806) 13 Ves. 95, 103; and see 720, 40 L. J. Q. B. 312. Charter v. Trevelyaii (1844) 11 CI. & (c) The latest case, which, if any- r. 714. 732. thing, increases the wholesome strict- (h) Per Willes J. in Mollett v. ness of the law, is Grant v. Gold Ex- Fobinson (1870) L. R. 5 C. P. at p. ploration {.(^c. Syndicate of British 655, 39 L. J. C. P. 290. Cp. Guest v. Columbia [1900] 1 Q. B. 233, 69 L. J. Hmythe (1870) L. R. 5 Ch. 551, per Q. B. 150, C. A. 31 Jeff rics r. Wiester, 2 Saw\'er, 135; Ingle r. Hartman, 37 la. 274; Keighler V. Savage Mfg. Co., 12 Md. 383. An agent to sell cannot himself become the purchaser unless he is kno^\^l to liis principal to be such. Adams v. Savre, 70 Ala. 318; Eldredge r. Walker, 60 III. 230 ; Copeland r. Insurance Co.. 6 Pick. 198 ; Rennick r. Butterfield, 21 N. H. 70; Martin v. Moulton. 8 N. H. 504; Clendenning v. Hawks, 10 N. Dak. 90; Bank v. Farmers' L. & T. Co., 16 Wis. 629. And the rule applies where the employment is to sell at a stipulated price. Porter r. Woodruff, 36 N. J. Eq. 174: Ruckman r. Bergholz. 37 X. J. L. 437; Iron Co. r. Harper, 46 Ohio St. 100. And see Bank v. Simons, 133 Mass. 415; Rich r. Black, 173 Pa. 92; De Bussche r. Alt, 8 Ch. D. 286, 317; 9 Harv. L. Rev. 349; 13 ib. 522. A factor directed to procure insurance cannot himself become the insurer. Kean v. Brandon, 12 La. Ann. 20. 32 Conkey v. Bond, 36 N. Y. 427 ; Taussig v. Hart. 49 N. Y. 301 ; 58 X. Y. 425: Stewart v. Mather, 32 Wis. 344. And see Levy r. Loeb, 85 N. Y. 365; 89 N. Y. 386. A broker acting for both vendor and purchaser cannot recover for his services. Fritz r. Finnerty, 5 Col. 174; Young v. Trainor, 158 111. 428: Rail- road Co. V. Pattison, 15 Ind. 70 ; Lloyd v. Colston, 5 Bush, 587 ; Rice r. Wood. 113 Mass. 133; Follansbee r. O'Reilly. 135 Mass. 80; Carpenter r. Fisher, 175 Mass. 9; Scribner v. Collar. 40 Mich. .^75: Hannan r. Prentis. 124 Mich. 417: Everhardt v. Searle. 71 Pa. 256: Mavo v. Knowlton. 134 N. Y. 250; Carpenter r. Hogan, 40 Ohio St. 203: Lynch v. Fallon. 11 R. I. 311; Mever r. Hanchett, 30 Wis. 419; 43 Wis. 240. Cp. Alexander r. N. W. C. University, 57 Ind. 466; Alvord v. Cook. 174 ISIass. 120. unless the double agency was Avith the full knowledge and consent of both principals; ih. ; Bell ;•. ^IcConnell, 37 Ohio St. 396; Rowe r. Stevens. 53 N. Y. 621. Cp. Raisin v. Clark, 41 Md. 158: Pinney r. Hall, 101 Mich. 451. A mere middleman to bring the parties together may contract for com- pensation from both. Clark ?•. Allen. 125 Cal. 276; Cox r. Haun, 127 Ind. 325; Mullen r. Kectzleb, 7 Bush, 253: Rupp r. Sampson. 16 Gray, 398: Friar r. Smith. 120 Mich. 411 ; Collins r. Fowler. 8 Mo. App. 588; .Lnrvis r. Schaefer, 105 X. Y. 289: Orton r. Scofield. 61 Wis. 382. And see Barry r. Schmidt, 57 Wis. 172; McKenzie v. Lego, 98 Wis. 364. DEALINGS BY AGENT AGAINST DUTY. 389 dealing in that trade or market through a broker, but himself igno- rant of the usage (d).^ *The rule is not arbitrary or technical, but rests on the prin- [287 ciple that an agent cannot be allowed to put himself in a position in which his interest and his duty are in conflict, and the Court will not consider " whether the principal did or did not suffer any injury in fact by reason of the dealing of the agent ; for the safety of mankind requires that no agent shall be able to put his principal to the danger of such an inquiry as that." ^'^ It is a corollary from the main rule id) Robinson V. MoUett (1874-5) 10 Ch. 593, 44 L. J. Ch. 721: Albion L. R. 7 H. L. 802, 838, 44 L. J. C. P. Steel Wire Co. V. Martin (1875) 1 Ch. 362 : and further as to alleged cus- D. at p. 585, per Jessel M.R. 45 L. J. toms of this kind De Biissche v. Alt Ch. 173; as to promoters, Ketc Som- (1877) 8 Ch. Div. 286, 47 L. J. Cli. brero Phosphate Co. V. ErUinger 386. For the special application of (1877) 5 Ch. Div. 73, 46 L. J. Ch. the rule to the duty of directors of 425. companies. Hay's case (1875) L. K. 33 As to alleged customs of this kind, see Irwin r. Williar, 110 U. S. 499; Allen V. St. Louis Bank, 120 U. S. 20, 39; Terry c. Birmingham Bank, 99 Ala. 566; Skiff v. Stoddard, 63 Conn. 198; Raisin v. Clark, 41 Md. 458; Day v. Holmes, 103 Mass. 306; Commonwealth v. Cooper, 130 Mass. 285; Merchants' Ins. Co. r. Prince, 50 Minn. 53. For the application of the rule to directors of corporations, see Wardell V. Railroad Co., 4 Dill. 330; affd., 103 U. S. 651; Bill v. W. U. Telegraph Co., 16 Fed. Rep. 14; Meeker v. Winthrop Iron Co., 17 Fed. Rep. 48; Bensiek V. Thomas, 66 Fed. Rep. 104; Wilbur v. Hough, 49 Cal. 290; San Diego R. Co. V. Pacific Beach Co., 112 Cal. 53; Port v. Russell, 36 Ind. 60; Ryan v. Railway Co., 21 Kan. 365; Bank r. Drake. 29 Kan. 311; Railroad Co. v. Bowler, 9 Bush, 468; Railroad Co. v. Poor, 59 Me. 277; Hoffman Coal Co. V. Cumberland Coal Co., 16 Md. 456; Railway Co. t. Dewey, 14 Mich. 477; Miner V. Belle Isle Co., 93 Mich. 97; Manufacturers' Bank v. Iron Co., 97 Mo. 38; Blake v. Railroad Co., 56 N. Y. 485; Munson v. Magee, 161 N. Y. 182; Goodin v. Canal Co., 18 Ohio St. 169; Ashurst's Appeal, 60 Pa. 290; Parsons V. Tacoma Co., 25 Wash. 492. Cp. Rolling Stock Co. v. Railroad Co., 34 Ohio St. 450. As to promoters, W'iser v. Lawler, 189 U. S. 260; Yeiser v. United States Board Co.. 107 Fed. Rep. 340 (C. C. A.) ; Central Trust Co. r. East Tenn. Land Co., 116 Fed. Rep. 743; Burbank r. Dennis, 101 Cal. 90; Yale Gas Stove Co. v. Wilcox, 64 Conn. 101; Hayward v. Leeson, 176 Mass. 310; Cook v. South Co- lumbia Co., 75 Miss. 121; kxter v. Sawyer. 146 Mo. 302; Woodbury. &c. Co. V. Lovidenslager, 55 N. J. Eq. 78; Gettv v. Devlin. 54 N. Y. 403; McElhenny V. Hubert Oil Co., 61 Pa. ISS; Simons \: Vulcan Oil Co., 61 Pa. 202; Densmore Oil Co. V. Densmore, 64 Pa. 43. Cp. Blood v. La Serena Land Co., 134 Cal. 361. 34 Humphrey t. Eddy Transportation Co., 107 Mich. 163; Porter v. Wood- ruff, 36 N. J. Eq. 174, 179. 180; Taussig r. Hart. 58 X. Y. 425; Rolling Stock Co. V. Railroad Co., 34 Ohio St. 450, 460; Everhardt v. Searle, 71 Pa. 256. An agreement to pay a commission to the agent of another by one who is about to contract with that other, if the agent will use his influence to induce his principal to enter into the contract, is a corrupt agreement, and not enforceable at law, even though it does not induce the agent to act corruptly. It would be " most mischievous to hold that a man could come into a court of law to enforce such a bargain on the ground that he was not in fact corrupted. It is quite immaterial that the employer was not in fact dam- aged." Harrington r. Victoria Graving Dock Co., 3 Q. B. D. 549; Woodstock 390 UNLAWFUL AGREEJNIEXTS. tliat SO long as a contract for sale made by an agent remains execu- tory he cannot re-purchase the property from his own purchaser except for the benefit of his principal (e ).-"'' A like rule applies to the case of an executor purchasing any part of the assets for himself. But it is put in this somewhat more stringent form, that the burden of proof is on the executor to show that the transaction is a fair one. This brings it very near to the doctrine of Undue Influence, of which in a later chapter. It makes no difference that the legatee from whom the purchase was made was also co-executor (/). Another branch, of the same principle is to be found in the rules against trustees and limited owners renewing leases or purchasing reversions for them- selves (g).^^ Again : " It may be laid down as a general principle that in all cases where a person is either actually or constructively an agent for other persons, all profits and advantages made by him in the business beyond his ordinar}^ compensation are to be for the benefit of his employers" (h).^'^ " If a person makes any profit by being employed (e) Parker r. McEenna (1874) 10 Ch. 870, 42 L. J. Ch. 641. On the Ch. 96, 118, 124, 125, 44 L. J. Ch. general rule see also Marsh v. Whit- 425. more (1874) (Sup. Court, U. S.) 21 if) Gray v. ^Yarner (1873) L. R. Wall. 178. IG Eq. 577, 42 L. J. Ch. 556. {h) Story on Agency, § 211, {(j) Notes to Keech v. Sandford adopted bv the Court in M orison v. (1726) in 1 Wh. & T. L. C. The last Thompson (1874) L. R. 9 Q. B. 489, case on the subject is Trumper v. 485, 43 L. J. Q. B. 215, where several Trumper (1873) L. R. 14 Eq. 295, 8 cases are collected. Iron Co. V. Richmond Extension Co., 129 U. S. 643, 656; Alger r. Anderson, 78 Fed. Rep. 729, 738; Continental Trust Co. v. Toledo, &c. Ry. Co., 86 Fed. Rep. 929, 945; Union Ins. Co. v. Berlin, 90 Fed. Rep. 779 (C. C. A.) ; Boll- man v. Loomis, 41 Conn. 581; Atlee v. Fink, 75 Mo. 100; Bvrd v. Hughes, 84 111. 174; Holcomb v. Weaver, 136 Mass. 265. Cp. Dexter v. McClellan, 116 Ala. 37. An agreement between two real estate agents representing different parties to divide commissions in case they could effect a sale or exchange between their principals was held void in Levy v. Spencer, 18 Col. 532; but in Alvord V. Cook, 174 Mass. 120, it was held that such an arrangement was not fraudu- lent as matter of law. 35 Bain v. Brown. 56 X. Y. 285; Caldwell v. Caldwell, 45 Ohio St. 512; Cook V. Berlin W. M. Co., 43 Wis. 433. See also Williams r. Scott, [1900] A. C. 499. 36Gower v. Andrew, 59 Cal. 110; Davis r. Hamlin. 108 111. 39; flrumley v. Webb. 44 Mo. 444; Holdridse r. Oillespie. 2 Johns. Ch. 30; :\litchell r. Reed, 61 N. Y. 123; 84 X. Y. 556; Porrv on Trusts. §§ 196. 538. See also Kimberly V. Arms. 129 U. S. 510: Turner r. Sawver. 150 U. S. 578: Williamson r. Mon- roe. 101 Fed. Rep. 322; Snead r. Deal. 53 Ark. 152; Franklin Min. Co. v. O'Brien. 22 Col. 129; Larev r. Baker, 86 Oa. 468; Abrams )•. Wingo. 9 Kan. App. 884; Robinson r. Jewett, 116 X. Y. 40; Lacy r. Hall. 37 Pa. 365; Johnson's Appeal. 114 Pa. 132. 3T Railroad Co. r. Kindred. .3 McCrarv. 627: Vallette r. Tedens, 122 111. 607; Helber? r. Xichol. 149 Til. 249: Laffertv v. Jelly. ■'>2 Ind. 471; Ackenburgh V. McCool, 36 Ind. 473; Love v. Hoss, 62 Ind. 255; Blanchard v. Jones, 101 Ind. DEALINGS BY AGENT AGAINST DUTY. 391* contrary to his trust, the employer has a right to call back *that [288 profit" ((). And it is not enough for an agent who is himself inter- ested in the matter of the agency to tell his principal that he has some interest: he must give full information of all material facts (A-).2« Even this is not all : an agent, or at any rate a professional adviser, cannot keep any benefit which may happen to result to him from his own ignorance or negligence in executing his duty. In such a case he is considered a trustee for the persons who would be entitled to the benefit if he had done his duty properly (l).^^ Nature of remedies applicable. In this class of cases the rule seems to be that the transaction improperly entered into by the agent is void- able so far as the nature of the case admits. W^ere it cannot be (i) Masser/ v. Dai-ics (1704) 2 cent exposition of its limits, see Cosf a Ves. 317. 320, 2 R. R. 218. Rica R. Co. v. Fonrood [1901] 1 Ch. {k) See authorities collected, and 746, 70 L. J. Ch. 385, C. A. observations of the Court thereon, (l) BulkJey v. Wilford (1834) 2 Dunne v. English (1874) L. R. 18 Eq. CI. & F. 102. 37 K. R. 39. Cp. Corley 524, 534. The developments of the v. Lord Stafford (1857) 1 De G. & J. principle in modern company law 238. As to alternative remedies, see cannot be followed here. For a re- Grant's case, p. *286, above. 542; Thomas r. Sweet, 37 Kan. 183; McNutt V. Dix, 83 Mich. 328; Goodhue V. Davis, 46 Minn. 210; Seehorn r. Hale, 130 Mo. 257; Dodd v. Wakeman, 26 N. J. Eq. 484. 487 ; Button r. Willner, 52 N. Y. 312 ; Wilson r. Wilson, 4 Abb. App. Dec. 621; Noves r. Landon, 59 Vt. 569. And see the cases in note 40. Even thouEfh the agency is gratuitous the principle is applicable. Salsbury V. Ware, 18,3^ 111. 505. Where an agent, in violation of his contract of agency, engaged in another business of similar character to that which he was conducting for his prin- cipal, the ])rofits of his private venture were held to belong to the principal in James T. Hair Co. v. Daily, 161 111. 379. " An agent cannot exact of his principal any advantage growing out of a contract made by the agent in his principal's name, unless tlie latter has expressly authorized or ratified it, with knowledge that such advantage would accrue." Vreeland v. Van Blarcom, 35 N. J. Eq. 530. A director of a corporation is bound to account to the corporation for all profits secretlv made by him out of his office. Bank V. Downev. 53 Cal. 466; Bent V. Priest, 86 Mo. 475; McClure r. Law. 161 X. Y. 7S; Bird Coal Co. v. Hume, 157 Pa. 278; Rutland Electric Light Co. r. Bates, 68 Vt. 579. But in Bristol V. Scranton, 63 Fed. Rep. 218 (C. C. A.), it was held that M'here the president of a corporation contracted in good faith for the consolidation of his corporation with a rival, and where the latter would not consolidate unless the president would agree not to engage in the business personally for a term of years, and he made such an agreement for a consideration, the con- sideration could not be recovered. A gift made to the plaintiff"'s agent by one from whom the agent had made a purchase on behalf of the plaintiff after the conclusion of the agency was sustained in Lamb Knit Goods Co. v. Lamb, 119 Mich. 568. Cp. Downard. t: Hadlev, 116 Ind. 131. 3«Mulvane r. O'Brien. 58 Kan. 463. S9See DoAviuxrd v. Hadlev, 116 Ind. 131. 392 UNLAWFUL AGREEMENTS. avoided as against third parties, the principal can recover the profit from the agent."**^ But where there are a principal, an agent, and a third party contracting with tlie principal and cognizant of the agent's employment, and there are dealings between the third party and the agent which give the agent an interest against his duty, there the principal on discovering this has the option of rescinding the contract altogether. Thus when company A. contracted to make a telegraph cable for company B., and a term of the contract was that the work should be approved by C, the engineer of company B., and C. took an undisclosed sub-contract from company A. for doing the same work; and further it appeared that this arrangement was con- templated when the contract was entered into ; it was held that com- pany B. might rescind the contract (m).^ 289] *(c) Settlements in fraud of marital right. The rule as to settle- ments " in fraud of marital right " was thus given by Lord Lang- dale (n) : — " If a ■woman entitled to property enters into a treaty for marriage and during the treaty represents to her intended husband that she is so entitled that upon her marriage he will become entitled jure mariti, and if during the same treaty she clandestinely conveys away the property in such man- ner as to defeat his marital right and secure to herself the separate use of it, and the concealment continues till the marriage takes place, there can be no doubt but that a fraud is thus practised on the husband and he is entitled to relief "(o). 42 Moreover — " If both the property and the mode of its conveyance, pending the marriage treaty, were concealed from the intended husband, as in the ( m ) Panama .ep. 1229 ; Logan r. Simmons, 3 Ired. Eq. 487; Goodson v. Whitfield. 5 Ired. Eq. 169: Tisdale v. Bailey. 6 Ired. Eq. 358; Brinkley r. Brinkley. 128 N. C. 503: Ward r. Ward. 63 Ohio St. 125; Ramsav r. Jovce. 1 McMullan's Eq. 236: Manes r. Durant. 2 Rich. Eq. 404. Contra. Kinne r. Webb. 54 Fed. Rep. 34; Alkire v. Alkire. 134 Ind. 350; Hamilton r. Smith, 57 la. 15; Fennessev r. Fennessey, 84 Kv. 519; Champlin r. Champlin. 16 R. I. 314: Green r. Goodall, 1 Coldw. 404; Dudley r. Dudley, 76 Wis. 567. See also Ross's Appeal, 127 Pa. 4. FRAUD ON MARITAL RIGHT. 395 the marriage contract. Looking at it in this way, there seems no reason why the rule should not apply to both parties equally. The expectation of acquiring a marital right cannot be said really to exist in most cases. There is in truth a mutual expectation of acquir- ing what is practically a common interest. It is obvious, however, that as a rule the only motive for a clandestine settlement is the woman's desire to exclude the marital right of the future husband. Since no such motive can exist on the other side, the converse case of a clandestine settlement by the man is most unlikely to happen ; there is little chance, therefore, that the correctness of the view here sug- gsted will ever be brought to a decisive test.^^ One reported case, however, supplies some analogy. By a marriage settlement the hus- band's father settled a jointure on the wife; by a secret bond of even date the husband indemnified his father against the payment of it; this indemnity was held void as " a fraud upon the faith of the marriage contract " (x) .] 4. Marriage within prohibited degrees. Marriages within the prohib- ited degrees of kindred and affinity are another class of transactions (x) Palmer v. Neave, 11 Ves. 165. Cp. the other similar cases cited in Story Eq. Jur. §§ 266-271. One or two of these, however, are really cases of estoppel. 45 In this country it is well settled that a secret conveyance of his real «state by a man on the eve of his marriage is voidable as against his wife's right of dower. Kellv v. McGrath. 70 Aia. 75; Chandler v. Hollingsworth, 3 Del. Ch. 99; Petty v. Petty, 4 B. Mon. 215; Leach r. Duvall, 8 Bush, 201; Cranson r. Cranson, 4 Mich. 230; Brown v. Bronson, 35 Mich. 415; Hach v. Rollins, 158 Mo. 182; Rice r. Waddill, 1G8 Mo. 99; Brinkley v. Brinkley, 128 N. C. 503 ; Arnegaard r. Arnegaard, 7 X. Dak. 475 ; Ward r. Ward, 63 Ohio St. 125; Brooks v. Meekin, 37 S. C. 285: Dudley c. Dudley, 76 Wis. 567. See also Peek v. Peek, 77 Cal. 106; Fennessey r. Fennessey, 84 Ky. 519. Cp. Dearmond r. Dearmond, 10 Ind. 191; Butler r. Butler, 21 Kan. 521. As to whether under our registry laws the record of the conveyance of real estate by the intended husband or wife should operate as constructive notice to the other partv, see 2 Bishop on tlie Law of Married Women, § 345 ; Ferebee r. Pritchard, li2 N. C. 83; Brinkley r. Brinkley, 128 N. C. 503. The doctrine has been extended to conveyances of land made after mar- riage in fraud of the wife's right of inheritance. Smith r. Smith. 22 Col. 480; Murray v. Murrav, 90 Kv. 1; Bro\^niell c. Briggs, 173 Mass. 529; Walker v. Walker, 66 N. H.'390, 392. But see Stewart r. Stewart. 5 Conn. 317. That the same rule applies to transfers of personaltv has been held in Wilson V. Wilson, 23 Kv. L. Rep. 1229; Mnnikee r. 'Bovd. 85 Kv. 20; Newton r. Newton, 162 Mo. 173; Rice r. Waddill. 168 Mo. 99; Thayer r. Thaver, 14 Vt. 107. See also Green r. Adams, 59 Vt. 602; but denied in Padfield r. Padfield. 78 111. 16; Small r. Small. 56 Kan. 1: Dunnock r. Dun- nock, 3 Md. Ch. 140; Cranson V. Cranson. 3 :\Iich. 230; Holmes r. Holmes. 3 I'aige, 363 ; Brodt v. Hickman, 7 Ohio N. P. 79 : Pringle r. Pringle, 59 Pa. 281. If the husband was to retain the benefit of the property during his life, the transaction clearlv Avill not be allowed to prejudice the wife's rights. Hatcher r. Buford, 60 Ark. 169; Tyler v. Tyler, 126 111. 525; Potter v. Tidelity Co., 199 Pa. 369. 396 UNLAWFUL AGBEEMEXTS. contrary to positive law. For although no direct temporal penalties- are attached to them, they have been made the subject of express and definite statutory prohibition (r). They formerly could not be treated as void unless declared so by an ecclesiastical Court in the lifetime 290] of the parties: but *by a modern statute (5 & 6 "\Vm. 4, c. 54) they are now absolutely void for all purposes. An executory contract to marry within the prohobited degrees is of course absolutely void also (s), and would indeed have been so before the statute. These rules are not local, like other rules of municipal law prescribing the solemni- ties of the marriage ceremon}-, requiring the consent of particular persons, or the like: the legislature has referred the prohibition to public grounds of a general nature (speaking of these marriages as "contrary to God's law")(^), and it concerns not the form but the substance of the contract; it therefore applies to the marriages of domiciled British subjects, in whatever part of the world the ceremony be performed, and whether the particular marriage is or is not of a kind allowed by the local law (w.).^^ (r) 32 H. 8. c. 38, and earlier re- pealed statutes of the same reign. It is the better supported opinion that 5 & 6 Wm. 4. c. 54, does not contain any new substantive prohibition. See Brook v. Brook { 1861 ) 9 H. L. C. 193. (s) It seems from Millward v. Lit- tlewood (18.50) 5 Ex. 775, 20 L. J. Ex. 2. that in the barely possible case of the relationship being known to only one of the parties, by whom it is fraudulently concealed from the other, tlie innocent party may sue as for a breach of contract, though the performance of the agreement would be imlawful. Here the ground of lia- bility is really not contract but estop- pel. (/) The use of these particular words seems of little importance. It would certainly appear bold to apply them to marriages which are per- missible by dispensation in the Canon law, and allowed unconditionally by the German Civil Code. [See the re- marks of Gray. C.J., in Common- wealth V. Lane. 113 Slass. at pp. 470. 471.] The true reason is shortly put bv Savigny. Syst. 8. 326: "die hier einscWagenden Gesetze, die auf sit- tlichen Riicksichten beruhen, haben eine streng positive Natur." Savig- ny's authority is i^erhaps sufficient to defend the doctrine of Brook v. Brook against the caustic criticism passed upon it by the Chief Justice of Mas- sachusetts in Commontccalth v. Lmie (1873) 113 Mass. at p. 473: — " Tlie judgment proceeds upon the ground that an Act of Parliament is not merely an ordinance of man but a conclusive declaration of the law of God : and the result is that the law of God, as declared by Act of Parliament, and expounded by the House of Lords, varies according to the time, place, length of life of par- ties, pecuniary interests of third per- sons, petitions to human tribunals, and technical rules of statutory con- struction and judicial procedure." (u) Brook v. Brook (1861) 9 H. L. C. 193. See per Lord Campbell at p. 220. He also doubted whether a mar- riage allowed by the law of the place, but contracted by English subjects Avho had come there on purpose to evade the Enirlish law, would be rec- otrnized even by the local courts. Cp^ Sottomayor v. De Barros, infra. ^f"' In the very learned opinion of Gray. C. .T.. in Commonwealth r. Lane, 1L3 Mass. 458, where the earlier Massachusetts and the English cases are collected, it is said: "A marriage which is pro]nl)ited here liy statute becmise contrary to the policy of our law is yet valid if celebrated elsewhere accord- PROHIBITORY STATUTES. 397 Where a marriage has been contracted in England between foreign- ers domiciled abroad, English Courts will recognize disabilities, though not being iuris gentium, *imposed by the law of the domicil [291 of both parties {x) '^"^ but a marriage celebrated in England is not held invalid by English Courts on the ground that one of the parties is subject by the law of his or her domicile to a prohibition not recog- nized by English law, at all events where the other party's domicile is English {y). Royal Marriage Act. The "Act for the better regulating the future marriages of the lio3'al Family" (12 Geo. 3, c. 11) imposes on the persons within its operation disabilities (absolute before the age of 25, qualified after that age) to marry without the consent of the Sovereign; and this disability is personal, not local, so that a mar- riage without consent is equally invalid wherever celebrated (2). Agreements illegal by statute. Moreover a great variety of dealings of which contracts form part, or to which they are incident in the ordinary course of affairs, are for extremely various reasons forbidden or restricted by statute. In the eighteenth century, in particular, Acts of Parliament regulating the conduct of sundry trades and occu- pations were strangely multiplied. Most of these are now repealed, but the decisions upon them established principles on which our Courts still act in dealing with statutes of this kind. ix) ^oiiomnyor V. De Barros topic. Sir Howard Elphinstone's (1877) 3 P. Div. 1, 47 L. J. P. 23. "Notes on the English Law of Mar- (y) Sottomayor V. De Barros riage " in L. Q. R. v. 44. and the (1879) 5 P. D. 94, dissenting from chapter on Marriage in Dicey, "Con- some dicta in the previous judgment flict of Laws." of the C. A., which however went on (z) The Sitsnex Peerage case a supposed different state of the (1844) 11 CI. & F. 85. facts. See further, on this perplexed ing to the law of the place, even if the parties are citizens and residents of this Commonwealth, and have gone abroad for the purpose of evading our laws, unless the Legislature has clearly enacted that such marriages out of the State shall have no validity here.'' Ponsford i\ Johnson. 2 Blatchf. 51. And see Stevenson r. Grav, 17 B. Mon. 193; Wliippen r. Whippen. 171 Mass. 560; Van Voorhis i: Brintnall. 86 N. Y. 18; Thorp r. Thorp. 90 N. Y. 602: Moore v. Hegeman, 92 N. Y. 521 ; State r. Shattuck. 69 Vt. 403. Contra, IvTorman i\ Norman, 121 Cal. 620; Wilhite r. Wilhite. 41 Kan. 154; Williams r. Gates, 5 Ired. L. 535; State v. Kennedy, 76 N. C. 251; Pennegar r. State, 87 Tenn. 244; Ne\ATnan r. Kimbrough, 59 S. W. Rep. 1061 (Tenn.) ; Kinnev r. Commonwealth, 30 Graft. 858. See also State v. Tutty, 41 Fed. Rep. 753; McLennan r. McLennan, 31 Oretr. 480. 47 In Milliken r. Pratt, 125 Mass. 374. Gray, C. J., at p. 381, says of Sottomavor v. De Barros, 3 P. D. 1, that the decision " it is utterly opposed lo our law; and consequently the dictum of Lord Justice Cotton, 'is a well- recognized principle of law that the question of personal capacity to enter into any contract is to be decided by the law of the domicile ' "is entitled to little weight here." 398 UNLAWFUL AGREEMEXTS. Construction of prohibitory statutes. The question whether a particu- lar transaction comes witliin the meaning of a prohibitory statute is manifestly one of construction. So far as we have to do with it here, we have in each case to ask, Does the Act mean to forbid this agreement or not? And in each case the language of the particular Act must be considered on its own footing. Decisions on the same Act may of course afford direct authority. But decisions on more or 292] less similar enact*ments, and even on previous enactments on the same subject, cannot as a rule be regarded as giving more than analogies. Attempts have indeed been made at different times to lay down fixed rules, nominally of construction, but really amounting to rules of law which would control rather than ascertain the ex- pressed intention of the legislature. But in recent times our Courts have fully and explicitly disclaimed any such powers of interpretation. " Tlie only rule for tlie construction of Acts of Parliament is that they should he construed according to the intent of the Parliament which passed the Act:" provided that the words he "sufficient to accomplish the manifest purpose of the Act" {a)A^ The effect of plain and unambiguous words is not to be limited by judicial construction even though anomalous results should follow (h). Policy of statutes. On the other hand the general intention is to be regarded, and may if necessary prevail over particular expressions, no less than in the interpretation of private instruments. But it must also be an intention collected from what the legislature has said, not arrived at by conjectures of what the legislature might or ought to have meant (c). A transaction not in itself immoral is not to be held unlawful on a conjectural view of the policy of a stat- ute (d). The true policy of a statute is for a court of justice neither more nor loss than its true construction. The Courts no longer under- (a) Opinion of the Judges in the opinion on the Continent), that stat- Snssex Peerage case 11 CI. & F. at p. utes might be disregarded if the 143, per Tindal C.J. ; per Lord Courts thought them contrary to rea- Brougham at p. 150. And see per son, common right, or natural equity Knight Bruce L.J. Crofts v. Middle- ( all synonymous terms for this pur- ion (1856) 8 D. M. & G. at p. 217: pose), lias long been repudiated: see per Lord Blackburn, in River Wear per Willes J. Lee v. Bude, tt-c. Ry Co. Commrs. v. Adomson (1877) 2 App. (1871) L. R. 6 C. P. 576. 582. 40 L. Ca. at p. 764. 47 L. J. Q. B. 193. J. C. P. 285: cp. Journ. Soc. Comp. ih) Carqo ex Argos, &c. (1872-3) Leg. N. S. ii. at p. 423. L. E. 5 P. C. at' pp. 1.52-3. The (c) Cp. pp. *255, *256. above, doctrine formerly current (in accord- (d) Barton V. Mvir (1874) L. R. ance with the prevailing speculative 6 P. C. 134. 44 L. J. P. C. 19. 48 Where the meaning of a statute is plain, it is the duty of the courts to enforce it according to its obvious terms. In such a case there is no necessity for construction." Thornley v. United States, 113 U. S. 310, 313. PEOIIIBITORY STATUTES. 399 take either to cut short or to widen the effect of legislation according to their views of what ought to be the *law. " Before we can [293 make out that a contract is illegal under a statute, we must make out distincth' that the statute has provided that it shall be so" (e). The cases in which acts of corporate bodies created for special pur- poses have been held void as " contrar}' to the policy of tlie legis- lature " and tending to defeat the objects of the incorporation have already been considered in Ch. II. These principles, when applied to the more limited subject-matter of prohibitory statutes, give the following corollaries : (a) No difference between malum prohibitum and malum in se. When a transaction is forbidden, the grounds of the prohibition are imma- terial. Courts of justice cannot take note of any difference between mala proJiihita {i.e. things which if not forbidden by positive law would not be immoral) and mala in se (i.e. things which are so for- bidden as being immoral). ^^ (b) Penalty prima facie imports prohibition. The imposition of a pen- alty by the legislature on any specific act or omission is prima facie equivalent to an express prohibition.^'^ These rules are established by the case of Bensley v. Bignold (/), which decided that a printer could not recover for his work or ma- terials when he had omitted to print his name on the work printed, as then required by statute {g). It was argued that the contract was good, as the Act contained no specific prohibition, but only a direction sanctioned by a penalty. But the Court held unanimously that this was untenable, and a party could not be permitted to sue on a contract where the whole subject-matter was " in direct violation of the provisions of an Act of Parliament." And Best J. said that the distinction between mala proMhita and mala in se was long since (e) Field, J.. 4 Q. B. D. at p. 224. {g) See now 32 & 33 Vict. c. 24. if) (1822) 5 B. & Aid. 335, 24 R. E. 401. 49 Bank v. Owens, 2 Pet. 527, 539; Gibbs v. Baltimore Gas Co., 130 U. S. 396; Penn V. Bornnian. 102 111. 523, 530; Greenoiish r. Balch, 7 Me. 461; White V. Buss, 3 Cush. 448; Downina; v. Ringer, 7 Mo. 585: Hill r. Spear, 50 N. H. 253, 277; Rossman r. McFarland, 9 Ohio St. 369, 379; Holt r. Green, 73 Pa. 198; Melchoir i: McCartv, 31 Wis. 252. 50 Clarke r. Insurance Co., 1 Story, 109, 122; SAvann v. Swann, 21 Fed. Rep. 299; Woods V. Armstrong, 54 Ala. 150; Harrison v. Jones, 80 Ala. 412; Campbell V. Segars, 81 Ala. 259; Youngblood r. Birniingham Trust Co., 95 Ala. 521; Berka v. Woodward, 125 Cal. il9; Funk r. Gallivan, 49 Conn. 124; Dillon r. Allen, 46 la. 299; Durgin r. Dver. 68 Me. 143; Robv v. West, 4 N. H. 285; Brackett i\ Hovt, 29 N. H. 264;' Gregory v. Wilson. '36 N. J. L. 315; Covington v. Threadgill, 88 N. C. 186; Blooni r. Richards. 2 Ohio St. 387, 395; Pennsvlvauia Co. v. Wentz, 37 Ohio St. 333, 338; Connell r. Kitchens, 20 S. C. 430; Elkins (7. Parkhurst, 17 Vt. 105; Bancroft v. Dumas, 21 Vt. 456. 400 UNLAWFUL AGREEMEXTS. exploded. The same doctrine has repeatedly been enounced in later cases. 294] *Thus, for example, by the Court of Exchequer: " Where the contract which the plaintiff seeks to enforce, be it express •or implied, is expressly or by implication forbidden by the common or statute law, no court will lend its assistance to give it effect. It is 'equally clear that a contract is void if prohibited by a statute though the statute inflicts a penalty only, because such a penalty implies a prohibition " (h) . It is needless to discuss the " policy of the law " when it is dis- tinctly enunciated by a statutory prohibition (i).^^ (c) But absence of penalty does not alter express prohibition. Con- versely, the absence of a penalty, or the failure of a penal clause in the particular instance, will not prevent the Court from giving effect to a substantive prohibition (A;).^^ (d) What may not be done directly must not be done indirectly— Booth v. Bank of England. What the law forbids to be done directly cannot be made lawful by being done indirectly. In Booth V. Bank of England (I) a joint-stock bank procured its manager to accept certain bills on the understanding that the bank would find funds, these bills being such as the bank itself could not have accepted without violating the privileges of the Bank of Eng- land. It was held by the House of Lords, following the opinion of the judges, that this proceeding " must equally be a violation of the rights and privileges of the Bank of England, upon the principle that what- ever is prohibited by law to be done directly cannot legally be effected by an indirect and circuitous contrivance :" for the acceptor was merely nominal, and the bills were in fact meant to circulate on the credit of the bank. Bank of U. S. V. Owens. In Ba7ik of United States v. Owens (m)^^ (Supreme Court, U.S) the charter of the bank forbade the taking of (h) Cope v. Ron-lands (1836) 2 parte 'Seilson (1853) 3 D. M. & G. M. & W. 149, 157, 46 R. R. 532, 539. 556, 566. Cp. Chambers v. Manchester d Mil- (k) tiussex Peerage case (1844) 11 ford Ry. Co. (1864) 5 B. & S. 588, 33 CI. & F. at pp. 148-9. L. J. Q. B. 268; Re Cork & Youghal (I) (1840) 7 CI. & F. 509, 540, 51 Ry. Co. (1869) L. R. 4 Ch. 748, 758, R. R. 36, upholding Bank of England 30 L. J. Ch. 277. v. Anderson (1836) 2 Keen 328, 3 (i) See per Lord Cranworth, Ex Bing. N. C. 589. 44 R. R. 271. (to) (1829) 2 Peters 527. 51 Bank v. Stegall, 41 ]Miss. 142, 183; Covington v. Threadgill, 88 N. C. 186. 52Melchoir i: McCarty, 31 Wis. 252. 53 See also Workingmen's Bkg. Assoc, v. Rautenberg, 103 111. 460; Clarke V. Lincoln Lumber Co., 59 Wis. 655. PROHIBITORY STATUTES. 401 a *greater rate of interest than six per cent., but did not say [295 that a contract should be void in which such interest was taken. A note payable in gold was discounted by a branch of the bank in a depreciated local paper currency at its nominal value, so that the real discount was much more than six per cent. The Court held this transaction void, though there was no express prohibition of an agree- ment to take higher interest, and though the charter spoke only of taking, not of reserving interest. Parts of the judgment are as fol- lows : "A fraud upon a statute is a violation of the statute." " It cannot be permitted by law to stipulate for the reservation of that which it is not permitted to receive. In those instances in which Courts are called upon to indict a penalty it is necessarily other- wise ; for then the actual receipt is generally necessary to consummate the offence. But when the restrictive policy of a law alone is in con- templation, we hold it to be an universal rule that it is unlawful to contract to do that which it is unlawful to do." " There can be no civil right where there can be no legal remedy, and there can be no legal remedy for that which is itself illegal . . , . there is no distinction as to vitiating the contract between malum in se and malum proliihitiim " (n). The cases are similar in principle in which transactions have been held void as attempts to evade the bankruptcy law: thus, to take only one example, a stipulation that a security shall be increased in the event of the debtor's bankruptcy, or any provision designed for the like purpose and having the like effect, is void (o). * Where conditions prescribed for conduct of particular trade, &c., [296 non-observance of them. When conditions are prescribed by statute for the conduct of any particular business or profession, and such con- ditions are not observed, agreements made in the course of such business or profession — (e) Avoids agreements if the conditions are for general public purposes. Are void if it appears by the context that the object of the legislature in imposing the condition was the maintenance of public order or (n) 2 Peters 536, 539. be shown, to vitiate a transaction on io) Ex parte Mackay (1873) L. R. this ground, that the provision was 8 Ch. 643, 42 L. J. Bk. 68 ; Ex parte inserted in contemphition of bank- Williams (1877) 7 Ch. Div. 138, ruptcy and for the purpose of defeat- where the device used was the attorn- ing the bankruptcy law: Ex parte ment of the debtor to his mortgagee Voisey (1S82) 21 Ch. Div. 442, 461, at an excessive rent; Ex parte Jack- 52 L. J. Ch. 121. son (1880) 14 Ch. Div. 725. It must 26 402 UNLAWFUL AGREEMENTS. safety or the protection of the persons dealing with those on whom' the condition is imposed :^* (f) Not if for merely administrative purposes. Are valid if no specific penalty is attached to the specific transaction, and if it appears that the condition was imposed for merely administrative purposes, e.g. the convenient collection of the revenue.^^ Illustrations. The following are instances illustrating this distinc- tion : — Agreement Void. Ritchie v. Smith (1848) 6 C. B. 462, 18 L. J. C. P. 9. The owner of a licensed house underlet part of it to another person, in order that he might WLaw V. Hodson, 11 East, 300; Little f. Poole, 9 B. & C. 192; Forster v. Taylor, 5 B. & Ad. 887; Miller v. Amnion, 145 U. S. 421; Hawkins v. Smith, 2 Cr. C. C. 173; Thompson v. Milligan, 2 Cr. C. C. 173; Lang r. Lj-nch, 38 Fed. Rep. 489; Gunter v. Leckey, 30 Ala. 591; Pacific Guano Co. r/ Mullen. 66 Ala. 582; Merriman v. Knox," 99 Ala. 93; Gardner v. Tatum, 81 Cal. 370; Kleckley v. Leyden, 63 Ga. 215; Johnston v. McConnell, 05 Ga. 129; Lorentz V. Conner, 69 Ga. 761; Tedrick r. Hiner. 61 111. 189; East St. Louis r. Freels, 17 111. App. 338; Hustis r. Picklands, 27 111. App. 270: Richardson r. Brix, 94 la. 626; Dolson V. Hope, 7 Kan. 161; Vannoy i. Patton, 5 B. Mon. 248; Mabry v. Bullock, 7 Dana, 337; Bull v. Harragan, 17 B. Mon. 349; Buxton V. Hamblen. 32 Me. 448; Durgin r. Dver, 68 Me. 143; Richmond v. Foss, 77 Me. 590; Black v. Security Mut. Asso'c, 95 Me. 35; Miller t. Post, 1 Allen, 434; Libby v. Downev, 5 Allen, 299; Wheeler v. Russell, 17 Mass. 257; Hewes r. Platts,'l2 Gray, 143; Smith v. Arnold, 106 Mass. 269; Sawyer v. Smith, 109 Mass. 220; Eaton r. Kcgan, 114 Mass. 433: Prescott r. Battersby, 119 Mass. 285; Loranger r. Jardine, 56 Mich. 518; Solomon v. Dreschler, 4 Minn. 278; Bisbee v. McAllen, 39 Minn. 143; Buckley r. Humason, 50 Minn. 195; Prav V. Burbank, 10 N. H. 377; Lewis v. Welch, 14 N. H. 294; Caldwell v. Wentworth, 14 X. H. 431; Doe r. Burnham. 31 X. H. 426: Griffith v. Wells. 3 Denio, 226; Covington c. Threadgill, 88 X. C. 186; Holt r. Green, 73 Pa. 198; Johnson r. Hulings, 103 Pa. 498; Swing v. Munson, 191 Pa. 582; McCon- nell V. Kitchens. 20 S. C. 430; Stephenson r. Ewing. 87 Tenn. 40: Bancroft v. Dumas, 21 Vt. 450: Gorsuth v. Butterfield, 2 Wis. 237. See also Singer Mfg. Co. V. Draper, 103 Tenn. 262. Cp. Harris v. Runnels, 12 How. 79; The Manistee. 5 Biss. 381; The Charles E. Wisewall, 74 Fed. Rep. 802 ; Pangborn v. Westlake, 36 la. 547 : Coombs v. Emery, 14 Me. 404: Ritchie v. Boynton, 114 Mass. 431; People's Bank v. Ala- bama R. Co., 65 Miss. 365: Houck v. Wright. 77 Miss. 476: Drake v. Siebold, 81 Hun, 178; Strong V. Darling, 9 Ohio 201; Xiemeyer v. Wright, 75 Va. 239; National Distilling Co. v. Crer.m City Importirg Co.. 86 Wis. 352. ^'5 In the following cases it was held to afford no defense to a contract that it was made in violation of a revenue law: .Johnson r. Hudson, 11 East, 180: Brown r. Duncan, 10 B. & C. 93 ; Smith r. Mawhood. 14 ]\I. & W. 452; Earned r. Andrews, 106 Mass. 435; ilandlebaum V. Gregovitch, 17 Xev. 87: Corning r. Abbott, 54 X. H. 469; Ruckman v. Bergholz, 37 X. J. L. 437 : Woodward r. Stearns, 10 Abb. Pr. X. S. 395 (see also Griffith v. Wells, 3 Denio, 226) ; Rahter r. First Xat. Bank, 92 Pa. 393 (see also Hertzler r. Geigley, 196 Pa. 419) ; Aiken v. Blaisdell, 41 Vt. 655. But see contra, Creekmore r. Chitwood, 7 Bush, 317; Harding r. Hagar, 60 Me. 340: 63 Me. 515 (but see Randall r. Tuell, 89 Me. 442. 448) ; Curran v. DowTis, 3 'Wo. App. 468: Hall r. Bishop. 3 Dalv, 109: Best v. Bander. 29 How. Pr. 489: Condon r. Walker. 1 Yeates, 483; Sewell v. Richmond, Taylor (U. C. K. B.) 423; Mullen v. Kerr, 6 U. C. Q. B. (0. S.) 171. PROHIBITORY STATUTES. 403 there deal in liquor on his own account under color of his lessor's licence and without obtaining a separate licence. This agreement was void, its purpose being to enable one of the parties to infringe an Act passed for the protection of public morals: (the licensing Acts are of this nature, and not merely for the benefit of the revenue, for this reason, that licenses are not to be had as a matter of right by paying for them ) . For the same reason and also because there is a specific penalty for each offence against the licensing law, it seems that a sale of liquor in an unlicensed house is void (p). Hamilton v. Grainger (1859) 5 H. & N. 40. Taylor V. Croicland Gas Co. (1854) 10 Ex. 29», 23 L. J. Ex. 254. A penalty being imposed by statute on unqualified persons acting as convey- ancers (q), the Court hehl that the object was not merely the gain to the revenue from the duties on certificates, but the protection of the public from unqualified practitioners; an imqualified person was therefore not allowed to recover for work of this nature. Cp. Leman v. Houseley (1874) L. R. 10 Q. B. 66, 44 L. J. Q. B. 22. Fergusson v. Xorman (1838) 5 Bing. N. C. 76, 50 R. R. 613. When a *pawnbroker lent money without complying with the requirements of the [297 statute, the loan was void and he had no lien on the pledge (r). In Stevens v. Gourley (1859) 7 C. B. N. S. 99, 29 L. J. C. P. 1, a builder was not allowed to recover the price of putting up a wooden shed contrary to the regulations imposed by the Metropolitan Building Act, 18 & 19 Vict, e. 122. The only question in the case was whether tlie structure was a building within "the Act. But note that here the prohibition was for a public purpose, namelv. to guard against the risk of fire. Barton v. Figgott ('l874) L. R. 10 Q. B. 80. By 5 & 6 Wm. 4, c. 50. s. 46, a penalty is imposed on any surveyor of highways who shall have an interest in any contract, or sell materials, &c. for work on any highway under his care, unless he first obtain a licence from two justices. Tlie effect of this is that an unlicensed contract by a surveyor to perform work or supply materials for any highway under his care is absolutely illegal, and there is no discretion to allow payments in respect of it. Contract not Avoided.^*^ Bailerj v. Harris (1849) 12 Q. B. 905, 18 L. J. Q. B. 115. A contract of sale is not void merely because the goods are liable to seizure and forfeiture to the Crown under the excise laws. Sinith v. Man-hood (1845) 14 M. & W. 452. 15 L. T. Ex. 149. The sale of an exciseable article is not avoided by the seller having omitted to (p) For the penal enactments now (1872; 35 & 36 Vict. c. 93, s. 51), in force see the Licensing Acts, 1872- enacts that an offence against the 1874. Act by a pawnbroker, not being an (q) Now by 33 & 34 Vict. c. 97, offence against any provision relat- s. 60. ing to licences, shall not avoid the (r) The present Pawnbrokers Act contract or deprive him of his lien. r'>c " The Revised Statutes of the United States respecting national banks provide that a bank shall not lend to any one person, corporation, or firm a. sum exceeding one-tenth part of the capital stock actually paid in, and that national banks shall not take real estate as collateral security except for debts previously contracted; and it has been repeatedly held that contracts made in contravention of the statute are not void. Gold Mining Co. r. Na- tional Bank, 96 U. S. 640; National Bank v. Mattliews. 98 U. S. 621; National Bank v. Whitnev, 103 U. S. 99; Revnolds r. Crawfordsville National Bank. 112 U. S. 405. " Where the officers of a saving bank invest its funds in a manner forbidden by statute, euoh illegal action of the officers does not impair the vali lity of tiie investment. Holden r. Upton, 134 [Mass. 177." Bowditch v. New England Ins. Co., 141 Mass. 292. 294. Similar decisions under various banking laws are: Savings Bank v. Burns, •jO-i UNLAWFUL AGREEMENTS. jjaint up his name on the licensed premises as required by 6 Geo. 4, c. 18, s. 25. Probably this decision would govern the construction of the very similar enactment in the Licensing Act, 1872 (35 & 3U Vict. c. 94, s. 11.) >Smith V. Lindo (1858) 4 C. B. N. S. 395, in Ex. Ch. 5 C. B. N. S. 587, 27 L. J. C. P. 19G, 335. One who acts as a broker in the City of London without being licensed under G Ann. c. 68 (Rev. Stat.: al. 16) and 57 Geo. 3, c. Ix. (s) cannot recover any commission, but a purchase of shares made by him in the market is not void; and if he has to pay the purchase- money by the usage of the market, he can recover from his principal the money so paid. And in general an agreement which the law forbids to he made is 298] void if made. But an agreement forbidden by ^statute may be saved from being void by the statute itself, and on the other hand an agreement made void or not enforceable by statute is not necessarily illegal. An agreement may be forbidden without being void, or void without being forbidden. (g) Agreement not void though forbidden, if statute expressly so provides. Where a statute forbids an agreement, but says that if made it shall not be void, then if made it is a contract which the Court must enforce.^''^ By 1 & 2 Vict. c. 106, it is unlawful for a spiritual person to engage in trade, and the ecclesiastical Court may inflict penalties for it. But by s. 31 a contract is not to be void by reason only of being entered into by a spiritual person contrary to the Act. It was con- tended without success in Lewis v. Bright (t) that this proviso could not apply when the other party knew with whom he was dealing. But the Court held that the knowledge of the other party was imma- terial; the legislature meant to provide against the scandal of such a defence being set up. And Erie J. said that one main purpose of (s) These Acts are repealed as to Brokers' Relief Act, 1870, 33 & 34 the power of the city court to make Vict. o. pn. rules, &c., but not as to the necessity (t) (1S"5) 4 E. & B. 917, 24 L. J. of brokers beirio: admitted, by the Q. B. 191. somewhat obscurely framed London 104 Cal. 473; Union [Mining Co. r. Rockv Mountain Nat. Bank, 1 Col. 531; Voltz V. National Bank, 158 111. 5.32; Benton County Bank r. Boddickcr, 105 la. 548; Lester v. Howard Bank, 33 Md. 556; Allen r. First Nat. Bank. 23 Ohio St. 97; First Nat. Bank v. Smith, 8 S. Dak. 7; Wroten's Assignee v. Armat. 31 Gratt. 228. So in the case of insurance companies. Bowditch v. New England Ins. Co., 141 Mass. 292; Ohio Ins. Co. r. Merchants' Ins. Co., 11 Humph. 1. Sp^ fui- ther, 2 Cook on Corporations (5th ed.). 1625 et seq. In this connection may well be considered many decisions in regard to con- tracts of foreign corporations forbidden by law to enter into such contracts. Sec 2 Cook on Corporations (5th ed.), 1677. 57Mc;Mahon v. Borden. .39 Conn. 316; Pangborn v. Westlake, 36 la. 546; Vining v. Bricker. 14 Ohio St. 331. WAGERS AND GAMING. 405 the law was to make people perform their contracts, and in this case it fortunately could be carried out. (h) Agreement may be simply not enforceable, but not otherwise unlawful. Where no penalty is imposed, and the intention of the le^slature appears to be simply that the agreement is not be be enforced, there neither the agreement itself nor the performance of it is to be treated as unlawful for any other purpose.^^ Modern legislation has produced some very curious results of this kind. In several cases the agreement cannot even be called void, being good and recognizable l\y the law for some purposes or for every pur- pose other than that of creating a right of action. These cases are reserved for a special chapter (w). *Wagers— Void, but not absolutely illegal— Fitch V.Jones. In the [299 case of wagers the agreement is null and void by 8 & 9 Vict. c. 109, s. 18, and money won upon a wager cannot be recovered either from the loser or from a stake-holder (with a saving as to subscriptions or con- tributions for prizes or money to be awarded " to the winner of any lawful game, sport, pastime, or exercise " ; the saving extends only to cases where there is a real competition between two or more per- sons (a;), ^^ and the "subscription or contribution" is not money (u) See Ch. XIII., On Agreements ited by them (that is, as leges per- of Imperfect Obligation. The dis- fectae) whether it were so expressed tinction between an enactment which or not. imposes a penalty without making the {.v) E.g. a wager tliat a horse will transaction void, and one which trot eighteen miles in an hour is not makes the forbidden transaction void, within it, as there can be no winner is expressed in Roman law by the in the true sense of the clause: Bat- terms minus quam perfecta lex and son V. Neivman (1876) 1 C. P. Div. perfecta lex. Ulp. Reg. 1 § 2, cp. Sav. 573. Nor a so-called competition Syst. 4. 550. A constitution of Theo- where the event is determined by dosius and Valentinian (Cod. 1. 14. chance or by a choice so arbitrary as de leg. 5) e^^joined that all prohibi- to be equivalent to chance: Barclay y. tory enactments were to be construed Pearson (the "missing word"' case) as 'avoiding the transactions prohib- [1893] 2 Ch. 154, 62 L. J. Ch. 636. 58 Adopted by the court in Chapman v. Countv of Douglas, 107 U. S. .348, 356; Johnson r. Meeker. 1 Wis. 436. f>9 Contests of speed for " purses, prizes, or premiums." are not bets or wagers. Harris r. White, 81 N. Y. 532; .Alvord v. Smith, 63 Ind. 58; Molk r. Daviess County Assoc, 12 Ind. App. 542; Delier r. Plymouth Soc, 57 la. 481; Wilkinson v. Stitt, 175 Mass. 581; Misner v. Knapp. 13 Oreg. 279; Ballard v Bro^vn. 67 Vt. 586; Porter r. Day, 71 Wis. 296; Gates r. Tinning, 5 U. C. Q. B. 540. See also People v. Fallon, 152 N. Y. 12. Contra. Comly r. Hillegass, 94 Pa. 132. And see Stone v. Clav, 61 Fed. Rep. 889 (C. C. A.) ; West V. Carter. 129 111. 249; Morgan r. Beaumont, 121 INIass. 7. Ferguson r. Coleman. 3 Rich. L. 99 was an action on an instrument, dated Slst January. 1843. Avheroby the defendant promised '"'to pay on the first of January, 1844, to W. S. Ferguson or bearer, nine hundred and two dollars, 406 UNLAWFUL AGREEMENTS. deposited with a stake-liolder by way of wager) (?/). Wagers were not as such unlawful or unenforceable at common law :^ and since the (y) Digqle v. Higgs (1877) 2 Ex. v. Hill (1879) (J. C.) 5 App Ca. 342, Div. 422, 40 L. J. Ex. 721; Trimble 49 L. J. P. C. 49. fifty-eight cents, if cotton should rise to eight cents by the first November next, and if not, to pay five hundred dollars, lor value received." This instru- ment was given in part payment of a tract of land which the defendant liad purchased of the plaintiti', and the condition happened. It was held that the contract was not a wager and the plaintiff recovered. Ace. Plumb v. Camp- bell, 129 111. 101; WoU V. National Bank, 178 111, 85; Phillips v. Gif- ford, 104 la. 458; Kirkpatrick r. Bonsall, 72 Pa. 155. See also United States V. Olney, 1 Abb. (U. S.) 275; Lynch v. Rosenthal, 144 Ind. 86; Dion r. St. John Baptiste Soc, 82 Me. 319; Miller v. Eagle, &c. Ins. Co., 2 E. D. Smith, 268; Dunham v. St. Croix Mfg. Co., 34 N. Brims. 243. 60 Johnson v. Fall, 6 Cal. 359 ; Ross v. Green, 4 Harringt. 308 ; Dewees r. Miller, 5 Harringt. 347; Smith v. Smith, 21 111. 244; Beadles r. Bless, 27 III. 320; Flagg v. Baldwin, 33 N. J. Eq. 219, 223; Campbell v. Richardson. 10 Johns. 406; Harris r. White, 81 N. Y. 532, 544; Shepperd v. Sawyer, 2 Mur- phey, 26; McElroy r. Carmichael, 6 Tex. 454. "In Irwin v. Williar, 110 U. S. 499, 510, the Supreme Court of the United .iStates says of wagering contracts: ' In England, it is held that the contracts, although wagers, were not void at common law, and that the statute has not made them illegal, but only non-enforceable (Thacker v. Hardy, iihi supra), ■while generally, in this country, all wagering contracts are held to be illegal and void as against public policv. Dickson's Executor r. Thomas, 97 Pa. 278; Gregory r. Wendell, 40 Mich. 432; Lyon r. Culbertson, 83 111. 33: Melchert v. American Union Telegraph Co.. 3 McCrary, 521; S. C, 11 Fed. Hep. 193 and note; Barnard v. Backhaus, 52 Wis. 593: Kingsbury r. Kirwan, 77 N. Y. 612; Story v. Saloman, 71 N. Y. 420; Love v. Harvey, 114 Mass. 80.' " Harvev v. Merrill. 150 Mass. 1, 10. See also in accord, Edgell r. Mc- Laughlin, 6 Whart. 176; Rice v. Gist, 1 Strobh. L. 82; Collamer v. Dav, 2 Tt. ^144. " But when the broker is pri\y to the unlawful design of the parties, and brings them together for the very purpose of entering into an illegal agree- ment, he is particeps criminis, and cannot recover for services rendered or losses incurred bv himself on behalf of either in forwarding the transaction.'' Irwin V. Williar.' 110 U. S. 499, 510. In Harvey v. Merrill, 150 Mass. 1. 11, the court quoted this language with approval, and added " This was decided in Embrev v. Jemison, 131 U. S. 336. See also Kahn r. Walton, 46 Ohio St. 195: Cothran i. Ellis, 125 111. 496; Fareira v. Gabell, 89 Pa. 89; Crawford v. Spencer, 92 Mo. 498; Lowry v. Dillman, 59 Wis. 197; Whitesides v. Hunt, 97 Ind. 191; First Nat. Bank v. Oskaloosa Packing Co., 66 la. 41; Rumsev V. Berry, 05 Me. 570. " It is not denied that wagering contracts are void by the common law of Massachusetts ; but it is argued that they are not illegal, and that, if one pays money in settlement of them at the request of another, he can recover it of the person at whose request he pays it. It is now settled here that contracts which are void at common law, l>ecause they are against public policy, like contracts which are prohibited by statute, are illegal as well as void. They are prohibited by law because they are considered vicious, and it is not necessarv to impose a penaltv in order to render them illegal. Bishop V. Palmer, 146"Mass. 469: Gibbs r. Consolidated Gas Co.. 130 U. S. 396. The weight of authority in this country is, we think, that brokers who knowingly make contracts that are void and illegal as against public policy, and advance money on account of them at the request of their principals, cannot recover either the money advanced or their commissions, and we are inclined to adopt this view of the law. Embrey r. Jemison, 131 U. S. 336, tibi supra, and the other cases there cited.'' To the citations of the court may be added Re Green, 7 Biss. 338; Bartlett WAGERS AND GAMING. 407 statute does not create any offence or impose any penalty, a man may still without violating any law make a wager, and if he loses it pay the money or give a note for the amount (2). The consideration for a note so given is in point of law not an illegal consideration, but merely no consideration at all. The difference is important to the subsequent holder of such a note. If the transaction between the original parties were fraudulent or in the proper sense illegal, the burden of proof would be on the holder to show that he was in fact a holder for value f^ but here the ordinary presumption in favour of the holder of a negotiable instrument is not excluded (a). At common law " if a party *loses a wager and requests another to pay it [300 for him, he is liable to the party so paying it for money paid at his request" (6) f^ but the Gaming Act, 1892, makes all such payments irrecoverable (c), as also a loan of money to be used for a wager, and to be repaid only if the borrower wins (d). Attempts have been made to evade the operation of the principal Act in gambling transactions for " differences " in stocks by colourable provisions for the completion of purchase and delivery or receipt of the stocks. Whether the intention of the parties was really to buy and sell, or to wager on the price of the stocks, is a question of fact on which the verdict of a jury will not be disturbed if on the agree- (z) As to British India see Queen- ments of Lord Campbell C.J. and Empress v. Nnroftamdds Motirdm Erie J. (1889) I. L. R. 13 Bom. 681, a curl- (h) Rosewarne v. Billing (1863) ous case on the common Indian sport 15 C. B. N. S. 316, 33 L. J. C. P. 55. of "rain-gambling." (c) 55 Vict. c. 9, Tatam v. Reeve, (a) Fitch v. Jones (1885) 5 E. & [1893] 1 Q. B. 44, 62 L. J. Q. B. 30. B. 238, 24 L. J. Q. B. 293. see judg- {d) Carney v. Plimmer [1897] 1 Q. B. 634, 66 L. J. Q. B. 415, C. A. r. Smith, 4 McCrary, 388; Kirkpatrick v. Adams, 20 Fed. Rep. 287; Ponder V. Jerome Hill Cotton Co., 100 Fed. Rep. 373 (C. C. A.) ; Hawley v. Bibb, 69 Ala. 52; Phelps v. Holderness, 56 Ark. 300; Nat. Bank of Augusta v. Cunningham, 75 Ga. 306; Samuels v. Oliver, 130 111. 73; F(>ss v. Cummings, 149 111. 353; Pope V. Hanke, 155 111. 617; Davis r. Davis. 119 Ind. 511; Peo- ple's Savings Bank i\ Gifford, 108 la. 277; Stewart v. Schall, 65 Md. 289; Mohr V. Miesen, 47 Minn. 228; Rogers r. Marriott. 59 Neb. 759: Baldwin V. Flagg, 38 N. J. Eq. 219; Fareira f. Gabell, 89 Pa. 89; Dickson's Exr. v. Thomas, 97 Pa. 278; Winward v. Lincoln, 23 R. I. 476; Barnard v. Backhaus, 52 Wis. 593 ; Everingham r. Meighan, 55 Wis. 354. Cp. Kent v. Miltenberger, 13 Mo. App. 503. 61 1 Daniel on Neg. Inst., §§ 166, 198, 815. 02 Thacker v. Hardy, 4 Q. B. D. 685. Ace. Jones v. Ames, 135 Mass. 431 ; Warren V. Hewitt, 45 Ga. 501, as to transactions unenforceable, but not un- lawful by the laws of Massachusetts and Georgia respectively. Even where tlie transaction is unlawful, the broker may recover for money expended in payment of losses at the principal's request. Roundtree v. Smith, 108 U. S. ?69 ; Lehman r. Strassbcrger, 2 Woods, 554, 563 ; Williams f. Carr, 80 N. C. 294 ; Marshall v. Thurston, 3 Lea, 740. 408 UNLAWFUL AGREEMENTS. ment as a whole there is evidence of a gambling intention (e). Xor Avill provisions of this kind validate an agreement which is otherwise a gambling agreement on the face of it (/').^ (e) Universal ^tock Exchange, Ltd. (f) Re Gieve [1899] 1 Q. B. 794, V. Strachan [1896] A. C. 166, 65 L. J. 68 L. J. Q. B. 509, C. A. Q. B. 429. <>3 A purchase on margin is not necessarily a gambling transaction. Uni- versal Stock Exchange c. Stevens, 66 L. T. N. S. 612; Forget f. Ostigny, [1895] A. C. 318; Union Nat. Bank c. Carr, 15 Fed. Rep. 438; Clews i:. Jamie- eon, 182 U. S. 461; Hatch c. Douglas, 48 Conn. 116; Skiff f. Stoddard, 63 Conn. 198; Corbett c. Underwood, «3 111. 324; Oldershaw v. Knowles, 101 111. 117; Perin c. Parker, 126 111. 201; Fisher v. Fisher, 113 Ind. 474; Sondhcim r. Gilbert, 117 Ind. 71; Ball r. Campbell, 30 Kan. 177; Sawver v. Taggart, 14 Bush, 727; Durant i". Burt, 98 Mass. 161; BuUard v. Smith, 139 Mass. 492; Bingham v. Scott, 177 Mass. 208; Clay V. Allen, 63 Jliss. 426; Stenton V. Jerome, 54 N. Y. 480; Gruman r. Smith, 81 X. Y. 25; Minor v. Beveridge, 141 N. Y. 399; Hopkins r. O'Kane, 169 Pa. 478; Taylor's Estate, 192 Pa. 304, 309, 313; Smj^th i: Field, 194 Pa. 550; Winward r. Lincoln, 23 R. I. 476. But bv statute contra in California, Cashman v. Root, 89 Cal. 373; Wetmore r. Barrett, 103 Cal. 246; Sheehv r. Shinn, 103 Cal. 325; Rued v. Cooper. 119 Cal. 463; Parker r. Otis. 130 Cal. 322. Unless forbidden by statute a contract of option is valid. Union Xat. Bank r. Carr, 15 Fed. Rep. 438; Hanna v. Ingram, 93 Ala. 482; Godman v. Meixsel, 65 Ind. 32; Mason i: Payne, 47 Mo. 517; Pieronnet v. Lull, 10 Xeb. 457; Bigelow r. Benedict, 70 X."' Y. 202 ; Harris r. Turnbridge, 83 X. Y. 93 ; Lester r. Buel, 49 Ohio St. 240, 252; Kirkpatrick v. Bonsall, 72 Pa. 155. See as to the construction of the Illinois statute, Wolcott r. Heath, 78 111. 433; Logan v. Musick, 81 111. 415; Schneider r. Turner, 130 111. 28; Ames V. Moir. 130 111. 582; Corcoran v. Lehigh Coal Co., 138 111. 390; Preston r. Smith. 156 111. 359. Cp. Wolf v. Xationai Bank of Illinois, 178 111. 85; Schlee r. Guckenheimer, 179 111. 593; Ubben v. Binnian, 182 111. 508; Loeb v. Stern, 198 111. 371. " If, in a formal contract for the purchase and sale of merchandise to be delivered in the future at a fixed price, it is actually the agreement of the parties that the merchandise shall not be delivered and the price paid, but that, when the stipulated time for performance arrives, a settlement shall be made by a payment in money of the difTerence between the contract price and the market price of the merchandise at that time, this agreement makes the contract a wagering contract.'' Harvey r. ]Merrill. 150 ]Mass, 1, 6. Xumerous decisions to this effect are collected in 14 Am. & Eng. Encyc. of Law (2d ed.), 609-011. And see cases in this note pas.'^im. In some juris- dictions contracts to sell in the future stock or merchandise which the seller did not own at the time of the contract are made illegal without reference to any intention that there shall be no deliverv. See Fortenburv v. State, 47 Ark. 188; Johnston r. Miller. 67 Ark. 172; "Branch r. Palmer. 65 Ga. 210: Moss V. Exchange Bank, 102 Ga. 808: Singleton r. Bank of Monticello, 113 Ga. 527; Lemonius r. ]\Iaver. 71 Miss. 514: Dillard r. Brenner, 73 Miss, 130; Violett V. Mangold, 27 So. Rep. (Miss.) 875; Connor r. Black, 119 Mo. 126: 1.32 Mo. 150: Edwards Brokerarre Co. r. Stevenson, 160 Mo, 516; Staples i\ Gould, 9 X. Y. 520; Gist r. Western Union Tel, Co.. 45 S. C. 344; Riordan v. Doty, 50 S. C. 537; Saunders )•. Phelps Co., 53 S. C. 173, In Harvey r. Merrill, supra, the court continued: "If, however, it is agreed by the parties that the contract shall be performed according to its terms if either party requires it, and that either party shall have a right to require it. the contract does not become a wagering contract, because one or both the parties intend, when the time for performance arrives, not to require performance, but to substitute therefor a settlement by the payment of the difference between the contract price and the market price at that WAGERS AND GAMING, 409 Under another modern statute (5 & 6 Wm. 4, c. 41, s. 1) securities for money won at gaming or betting on games, or lent for gaming or betting, are treated as given for an illegal consideration {g)S'* Lotteries are forbidden by penal statutes (h). It would be inappropriate to the general purpose of this work, as well as impracticable within its limits, to enter in detail upon the contents or construction of the statutes which prohibit or affect va- rious kinds of contracts by regulating particular professions and occu- pations or otherwise. *It has been attempted, however, to make [301 some collection of them in the appendix (?'). Agreements in derogation of private Acts of Parliament not necessarily bad. The rules and principles of law which disallow agreements Vv'hose (g) The statute does not affect a money deposited with a stakeholder loan of money to pay a bet previously or agent, see pp. '382, *3S3, below lost: Ex parte Fyke (1878) 8 Ch. (/() See note G. in Appendix. Vari- Div. 754, 47 L. J. Bk. 100. [Other- ous innocent and not uncommon ways wise now in England under the Gam- of raising money for charitable ob ing Act of 1892. Tatam v. Eeeve jets are probablv within the letter [1893] 1 Q. B. 44.] As to recovering of these Acts. ( i ) See Note G. time. Such an intention is immaterial, except so far as it is made a part of the contract, although it need not be made expressly a part of the contract." And the actual settlement of a contract by the payment of differences does not prove the contract to have been illegal. Tomblin c. Cullen, 69 ia. 229. Cp. Boyd V. Hanson, 41 Fed. Rep. 174. It is at least certain that " if either party contracted in good faith, he is entitled to the benefit of his contract, no matter what may have been the secret purpose or intention of the other party."' Pixlcy V. Boynton, 79 111. 351, 354; Clews v. Jamieson, 182 U. S. 461; Clarke r. Foss. 7 Biss. 541); Bartlett v. Smith, 13 Fed. Rod. 203: Kirkpatrick r. Adams, 20 Fed. Rep. 287; Hentz v. Jewell, 20 Fed. Rep. 592; Bennett v. Covington, 22 Fed. Rep. 816; Bangs v. Hornick, 30 Fed. Rep. 97; Lehman V. Feld, 37 Fed. Rep. 852; Hill r. Levy, 98 Fed. Rep. 94; Parker v. Moore, 125 Fed. Rep. 807: Johnston v. Miller, 67 Ark. 172; Logan v. Musick, 81 111. 415; Scanlon v. Warren. 109 111. 142; Vigel v. Gatton. 61 111. App. 9S ; Whiteside.= V. Hunt, 97 Ind. 191; Sondheim r. Gilbert, 117 Ind. 71; Murry r. Ocheltree, 59 la. 435; Sawyer v. Taggart, 14 Bush, 727; Rumsey v. Berrv, 65 Me. 570. 573; Dillaway v. Alden, 88 :Me. 230; Barnes r. Smith, 159 ]\r;\ss. 344; Davy i. Bangs, 174 Mass. 238; Gregory v. Wendell, 40 Mich. 432; Donovan r. Daiber, 124 :Mieh. 49; Clay v. Allen, 63 Miss. 426; Cockrell i. Thompson, 85 Mo. 510; Crawford /•. Spencer, 92 Mo. 498; Edwards Brokerage Co. r. Stevenson. 100 Mo. 516; Deierling v. Sloop. 67 Mo. App. 446; Rogers v. Marriott. 59 Neb. 759; Amsden v. Jacobs, 75 Hun, 311; affd. without opinion. 148 N. Y. 762; Dows V. Glaspel, 4 N. Dak. 251. 6-4 Under similar statutes in this country it is generally held that a loan of money to pay a debt previously lost is not affected. Armstrong v. American Bank, 133 U. S. 433, 469; Sampson r. Camperdown :\Iills, 82 Fed. Rep. 833. 837; White r. Yarborough, 16 Ala. 109; Roberts v. Blair. 11 Col. 34: Bower r. Webber, 69 la. 286 ;" Jones r. Sevier, 1 Lift. 50; English v. Young, 10 B. Mon. 141; Greathouse r. Throckmorton, 7 J. J. Marsh. 16; Bailai-d r. Green, 118 N. C. 390; Krake r. Alexander. 86 Va. 206. And see Poindexter '•. Davis. 67 N. C. 112. Cp. Hanauer r. Doane, 12 Wall. 342. 345: White r. Wilson's Adm., 100 Ky. 307; Scollans v. Flynn, 120 Mass. 271; Schoenberg v. Adler. 105 Wis. 645. There is nothing unlawful in paying a claim void for illegality. Lauten v. Rowan, 59 N. H. 215. 410 UNLAWFUL AGREEMENTS. object is to contravene or evade an Act of Parliament do not apply to private Acts, so far as these are in the nature of agreements be- tween parties. If any of the persons interested make arrangements between themselves to waive or vary provisions in a private Act relating only to their own interests, it cannot be objected to such an agreement that it is in derogation of, or an attempt to repeal the Act (k). B. Agreements contrary to morals or good manners. Practically this means only sexual morality. It is not every kind of immoral object or intention that will vitiate an agreement in a court of justice. When we call a thing immoral in a legal sense we mean not only that it is morally wrong, but that according to the common understanding of reasonable men it would be a scandal for a court of justice to treat it as lawful or indifferent, though it may not .come within any positive prohibition or penalty. What sort of things • fall within this description is in a general way obvious enough. And the law might well stand substantially as it is, according to modern decisions at any rate, upon this ground alone. Some complication has been introduced, however, by the influence of ecclesiastical law, which on certain points has been very marked, and which has cer- tainly brought in a tendency to treat these cases in a peculiar man- ner, to mix up the principles of ordinary social morality with considerations of a different kind, and with the help of those con- siderations to push them sometimes to extreme conclusions. Having regard to the large powers formerly exercised by spiritual Courts in 302] the control of opinions and conduct, *and even now technically not abolished, it seems certain that everything which our civil Courts recognize as immoral is an offence against ecclesiastical law. Perhaps, indeed, the converse proposition is theoretically true, so far as the ecclesiastical law is not directly contrary to the common law {I). But this last question may be left aside as merely curious. As a matter of fact sexual immorality, which formerly was and in theory still is one of the chief subjects of ecclesiastical jurisdiction, is the only or almost the only kind of immorality of Avhich the com- mon law takes notice as such. Probably drunkenness would be on the same footing. It is conceived, for example, that a sale of intoxicating liquor to a man who then and there avowed his intention of making (h) fiavin v. Jloi/Iake Ry. Co. (I) Cp. Lord Westbury's remarks (186-5) L. R. 1 Ex. 9, 3.5 L. J. Ex. in Hunt v. Hunt (lSOl-2) 4 D. F. 52. Cp. and dist. Shaw's claim & J. at pp. *226-8, *233. (187.5) L. R. 10 Ch. 177, 44 L. J. Ch. 670. IMMORAL AGREEMENTS. 411 liimself or others dnmk with it would he void at common law. The actvial cases of sale of goods and the like for immoral purposes, on whose analogy this hypothetical one is put, depend on the principles applicable to unlawful transactions in general, and are accordingly reserved for the last part of this chapter. Putting apart for the present these cases of indirectly immoral agreements, as they may l)e called, we find that agreements are held directly immoral in the limited sense above mentioned, on one of two grounds : as providing for or tending to illicit cohabitation, or as tending to disturb or prejudice the status of lawful marriage ('"'in derogation of the mar- jriage contract," as it is sometimes expressed). Illicit cohabitation — If future, an illegal consideration: if past, no consid- eration. With regard to the first class, the main principle is this. The promise or expectation of future illicit cohabitation is an unlaw- ful consideration, and an agreement founded on it is void.®^ Past cohabitation is not an unlawful consideration; indeed, there may in some circumstances be a moral obligation on the man to provide for the woman; but the *general riile applies (m) that a past exe- [303 cuted consideration, whether such as to give rise to a moral duty or not, is equivalent in law to no consideration at all. An agi-eement made on no other consideration than past cohabitation is therefore in the same plight as any other merely voluntary agreement. If under seal it is binding and can be enforced (n),^^ otherwise not (o).^' The existence of an express agreement to discontinue the illicit cohabita- tion, which is idle both in fact (as an agreement which neither party (m) But the rule is modern (Ch. pudicitiae comes from this period. IV. p. *1S1 above), and the earlier Pracmium pudoris, however, was •cases on this subject belong to a time used in a perfectly innocent sense in when a different doctrine prevailed; the oid law of dower: Co. Lit. 31a. they therefore discuss matters which (n) Gray \. Mathias (1800) 5 Ves. in the modern view are simply irrele- 286, 5 R. R. 48. vant. e.fi. the previous character of (o) Beavmont v. Reeve (1846) 8 the parties. The phrase praemium Q. B. 483, 1.5 L. J. Q. B. 141. 05 Walker r. Gregory, 36 Ala. 180; Wallace r. Rappleye, 103 111. 220, 249; Wilson V. Ensworth, 85 Ind. 399; Massey v. Wallace, 3'2 S. C. 149. See also Brown v. Tuttle, 80 I\Ie. 162. A promise of marriage made in consideration fof the promisee's surrendering her person to the promisor is void. Hanks V. Nagles, 54 Cal. 51; Boigneres v. Boulon. 54 Cal. 146; Baldy V. Stratton, 11 Pa. 316; Goodall r. Thurman, 1 Head, 209; Burke v. Shaver, 92 Va. 345. Cp. Kurtz r. Frank, 76 Ind. 594. 60 Brown v. Kinsey, 81 N. C. 245. See also Brightman v. Bates, 175 Mass. 105, 109. 67Drenr.nn r. Douglas. 102 111. 341; Wallace v. Rappleye, 103 111. 229; ^unn V. Winthrop, 1 -lohns. Ch. 329; Singleton r. Bremar, Harper, 201. iConfm, Shenk v. Mingle, 13 S. & R. 29. 412 UNLAWFUL AGREEMENTS. could break alone) and in law — or the fact of the defendant having previousl}' seduced the plaintiff, which " adds nothing but an executed consideration resting on moral grounds only/' — can make no differ- ence in this respect (o). Judgment of Lord Selborne, Ayerst v. Jenkins. The manner in which these principles are applied has been thus stated by Lord Sel- borne : — " Most of the older authorities on the subject of contracts founded on immoral consideration are collected in the note to Benyon v. yettlefGld (p). Their results may be thus stated: 1. Bonds or covenants founded on past cohabitation, whether adulterous {q), incestuous, or simpl\' immoral, are valid in law and not liable (unless there are other elements in the case) to be set aside in equity. 2. Such bonds or covenants, if given in considera- tion of future coliabitation, are void in law (/-), and Therefore of course* also void in equity. 3. Relief cannot be given against any such bonds or covenants in equity if the illegal consideration appears on the face of the instrument (s). 4. If an illegal consideration does not appear on the face of the instrument the objection of particeps criminis will not pi'cvail against a bill of discovery in equity in aid of the defence to an action at 304] *law (t), [this is of no consequence in England since the Judicature Acts]. 5. Under some (but not under all) circumstances when the considera- tion is unlawful, and does not appear on the face of the instrument, relief may be given to a particeps criminis in equity" («). The exception alluded to in the last sentence is probably this : that " where a party to the illegal or immoral purpose comes himself to be relieved from the ol)ligation he has contracted in respect of it, he must state distinctly and exclusively such grounds of relief as the Court can legally attend to" (x). He must not put his case on the ground of an immoral consideration having in fact failed, or com- plain that the instrument does not correctly express the terms of an immoral agreement (y). Wliere a security is given on account of past cohabitation, and the illicit connection is afterwards resumed, or even is never broken off, the Court will not presume from that fact alone that the real con- (0) Beaumoni v. Reeve (184C) 8 v. Lord EoKden (1837) 3 Mv. & Cr. Q. B 483. 15 L. J. Q. B. 141. 97, 102. 45 R. R. 225. 226. [p, (1850) 3 Mac. & G. 94, 100. (t) Benijon v. Xettlefold (1850) .? («/) Knye V. Moore (1822) 1 Sim. Mac. & G. 94. & St. 64. (u) Ayersf v. Jeiikins (1873) L. R. (r) Walker v. Perlcins (1764) 3 16 Eq. 275, 282, 42 L. ,7. Ch. 609. Burr. 1568. ix) Batty v. Chester (1842) 5 (s) Gray v. Mathias (1800) 5 Ves. Beav. 103, 109. 286. 5 R. R. 48: fimyfh v. Griffin (y) »Sfpmb?e, relief will not be given (1842) 13 Sim. 245, 14 L. J. Ch. 28, if it appears that the immoral con- appears to be really nothing else than sidevation has l>een executed: Sisme'if an instance o^ he same rule. The v. FAey (1849) 17 Sim. 1. 18 L. J. Ch. rule is or was a general one: Simpson 350: but the case is hardly intelligi- ble. SEPARATION DEEDS. 413 sideration was future as well as past cohabitation, nor therefore treat the deed as invalid (z).^^ There existed a notion that in some cases the legal personal repre- sentative of a part}' to an immoral agreement might have it set aside, though no relief would have been given to the party himself in his lifetime : but this has been pronounced '" erroneous and contrary to law" (a). An actual transfer of property, which is on the face of it *'a completed voluntary gift, valid and irrevocal^le in law" and con- fers an absolute beneficial interest, cannot l)e afterwards impeached either by the settlor or by his representatives, though in fact made on an immoral consideration (a).^ *But it by no means fol- [305 lows that the Court will enforce the trusts. It may have to direct the trustees whom to pay, and will then disregard any disposition which is in fact founded on an immoral consideration (c). Thus a settlement in the form of an ordinary marriage settlement in contem- plation of a marriage (as with a deceased wife's sister) not allowed hy English law is treated, as regards trusts for the so-called wife, as made on an immoral consideration, and the Court will pronounce such trusts invalid if applied to by the trustees for directions', though it would not set aside the settlement at the instance of the settlor (d). Proviso for reconciliation in quasi separation deed is void. Where parties who have been living together in illicit cohalntation separate, and the man covenants to pay an annuity to the woman, with a proviso that the annuity shall cease or the deed shall be void if the parties live together again, there the covenant is valid as a simple voluntary covenant to pay an annuity, but the proviso is wholly void. It makes no difference, of course, if the parties, being within the prohibited degrees of affinity, have gone through the form of marriage, and the deed is in the ordinary form of a separation deed between husband and wife (e). When the parties are really married such a proviso is usual but superfluous, for the deed is in any case avoided by the (z) Gray v. Mafhias (1800) 5 Ves. (c) Phillips v. Prohijn [1899] 1 Ch. 286, 5 R. R. 48; Hall v. Palmer 3 Ha. 811, G8 L. J. Ch. 401. 532; Vallance V. Blagden (1884) 26 (d) Phillips \. Probipi, la.st note. Ch. D. 353. (e) Ex parte Xadcn (1874) L. R. (a) Ayerst v. Jenhim (1873) L. R. 9 Ch. 670, 43 L. J. Bk. 121. 16 Eq. 275, 281, 284. 42 L. J. Ch. 090. esBrovn v. Kinsev, 81 X. C. 245. Cp. Trovinqer r. IMeBurney, 5 Cow. 253. 69 Hill V. Freeman, 73 Ala. 200; Marksburv r. Tavlor, 10 Bush. 519; Antoine r. Smith, 40 La. Ann. 500; White v. Hunter. 2.3 N. H. 128; Gisaf v. Neval, 81 Pa. 354; Denton r. Encrlish. 2 Nott & McC. 581; Bivins v. Jarnigan. £9 Tenn. 28^; Fletcher v. Warren, 7 Gratt. 1, 16. 414 UNLAWFUL AGREEMENTS. parties afterwards living together (f).'^^ This brings us to the- second branch of this topic, namely the validity of separation deeds and agreements for separation. Separation deeds in general — Hunt v. Hunt. The history of the subject will be found very clearly set forth in Lord Westbury's judgment in Hunt V. Hunt (g).''^ From the ecclesiastical point of view marriage was a sacrament creating an indissoluble relation. The duties 306] *attaching to that relation were " of the highest possible religi- ous obligation " and paramount to the will of the parties. In ecclesi- astical Courts an agreement or provision for a voluntary separation present or future was simply an agreement to commit a continuing breach of duties with which no secular authority could meddle, and therefore was illegal and void. For a long while all causes touching marriage even collaterally were claimed as within the exclusive jurisdiction of those courts. The sweeping character and the gradual decay of such claims have already been illustrated by cases we have had occasion to cite from the Year Books in other places. In later times the ecclesiastical view of marriage was still upheld, so far as the remaining ecclesiastical jurisdiction could uphold it (h), and continued to have much influ- ence on the opinions of civil Courts ; the amount of that influence is indeed somewhat understated in Lord Westbury's exposition. But the common law, when once its jurisdiction in such matters was set- tled, never adopted the ecclesiastical theory to the full extent. A contract providing for and fixing the terms of an immediate separa- tion is treated like any other legal contract, only the ordinary rule that the wife cannot contract with her husband without the inter- vention of a trustee is dispensed with in these cases (i). Being good and enforceable at law, the contract is also good and enforceable in_ (f) Westmeath v. Salishnry or the husband: see per Lord Selborne,. Wcfitmeath (1820-1) 5 Bli. N. S. 339, 8 App. Ca. at p. 421. 1 Dow. & CI. .519. 35 K. R. 54. (7i) See 4 D. F. & J. 235-8. ig) (1861-2) 4 D. F. & J. 221. The (i) P. *84. above. Mcaregor v. Mc- case was taken to the House of Lords, Grcgor (1888) 21 Q. B. Div. 424, 57 but the proceedings came to an end L. J. Q. B. 268. without any decision by the death of 70 Wells r. Stout, 9 Cal. 479, 498; Chapman v. Grav. S Ga. .S41. 349; Garland r. Garland, 50 Miss. 694; Shethar r. Gregorv, 2" Wend. 422; Carsor. V. Murray. 3 Paige, 483. See also Kehr v. Smith, 20 Wall. 31; Zimmer v. Settle, 124 N. Y. 37. Cp. Eowell r. Powell. [1900] 1 Q. B. 9. But not if the agreement for separation itself provides to the contrary. Walker r. Walker. 9 Wall. 743: Walker r. Beal. 3 Cliff. 155; Daniels r. Bene- dict. 97 Fed. Rep. 367 (C. C. A.). And see Hitner's Appeal, 54 Pa. 110. 71 See also 15 Harv. L. Rev. 638. SEPARATION DEEDS. 415 equity, nor is there any reason for refusing to enforce it by any of the peculiar remedies of equity. In Hunt v. Hunt the husband was re- strained from suing in the Divorce Court for restitution of conjugal rights in violation of his covenant in a separation deed {h), on the authority of the decision of the House of Lords (l), which had already established *that the Court may order specific performance of [307 an agreement to execute a separation deed containing such a cove- nant. The case may be taken as having put the law on a consistent and intelligible footing, though not without overruling a great num- ber of pretty strong dicta of various judges in the Court of Chancery and even in the House of Lords (m) ; and it has been repeatedly fol- lowed {n)?^ But an agreement by the wife not to oppose proceed- (fc) This covenant could not then ( Lord LjTidhurst ) . Most of these are be pleaded in the Divorce Court, to be found cited in the argument in which held itself bound by the former Wilson v. Wilson. And even since ecclesiastical practice to take no no- that case Vansittart v. Vansittart tice of separation deeds. (1858) 2 De G. & J. at p. 255 (Lord (I) Wilson y. Wilson (1854) 1 H. Chelmsford). L. C. 538. (n) Besant V. Wood (1879) 12 Ch. (to) In St. John v. St. John D. at p. 623; Sweet v. Sweet [1895] (1803-5) 11 Ves. 526. &c., West- 1 Q. B. 12, 64 L. J. Q. B. 108; Mar- meath v. Wpstmeath (1820-1) 1 Jac. shall v. Marshall (1879) 5 P. D. 19, 142 (Lord Eldon) ; Worrall v. Jacob, 48 L. J. P. 49. A like covenant on (1816-7) 3 Mer. 268 (Sir W. Grant); the Avife's behalf by a trustee is bind- Wnrrender v. Warrender (1835) 2 CI. in? on her, Clark v. Clark, 10 P. Div, & F. 527 (Lord Brougham), 561-2 188. 72 That agreements for separation are not void as being against public policy is generally held in this country. Walker v. Walker. 9 Wall. 743; Bowers v. Hutchinson, 67 Ark. 15; Wells v. Stout, Cal. 479; Nichols v. Palmer, 5 Day, 47; Boland r. O'Neil, 72 Conn. 217; Chapman v. Gray, 8 Ga. 341; Reed v. Beazley, 1 Blackf. 97; Goddard r. Beebe, 4 Greene (la.) 126; Loud V. Loud, 4 Bush. 453 ; Helms r. Franciscus, 2 Bland's Ch. 544 ; Fox v. Davis, 113 Mass. 255; Grime v. Borden, 166 Mass. 198; Bailey v. Dillon, 186 Mass. 244; Carson r. Murray, 3 Paige, 483: Galusha r. Galusha, 116 N. Y. 635; Clark r. Fosdick. 118 n! Y. 7: Durvea v. Bliven. 122 X. Y. 567; Hunger- ford V. Hungerford, 161 N. Y. 550, 553;'Bettle v. Wilson, 14 Ohio. 257; Hen- derson V. Henderson, 37 Oreg. 141 ; Dillinger's Appeal. 35 Pa. 357 ; Biery l". Steckel, 194 Pa. 445; Squires v. Squires, 53 Vt. 208. But see Foote V. Nickerson, 70 N. H. 496 ; Friedman r. Bierman, 43 Hun, 387 ; Whitney v^ Whitney, 4 N. Y'. App. Div. 597 ; Poillon r. Poillon. 49 X. Y\ App. Div. 341 ; Baum r. Baum, 109 Wis. 47. See especially the careful opinion in Foote V. Nickerson. Although in some states an agreement for separation, made directly between husband and wife, without the intervention of a trustee, is void (Phillips ;■. Meyers, 82 111. 67; Scherer v. Scherer. 23 Ind. App. 384; Simpsou r. Simpson, 4 Dana, 140; Rogers v. Rogers, 4 Paige, 516; Carter v. Carter, 14 S. & M. 59; Buchner r. Ruth. 13 Rich. 157. 160), the law of many states has so far removed the incapacity of the parties as to make such agree- ments valid. Jones r. Clifton. 101 U. R. 225, 229; Daniels v. Benedict, 97 Fed. Rep. 367. 376; Dutton r. Dutton. 30 Tnd. 4.52; Hutchins r. Dixon. 11 Md. 29, 40; Randall r. Randall, 37 Mich. 563: Roll r. Roll. 51 ^Vlinn. ,353 ; Steb- bins V. Morris, 19 Mont. 115; Carpenter r. Osborn. 102 N. Y^ 552; Thomas r. 416 UNLAWFUL AGREEMENTS. ings for a divorce pending at the suit of the husband is void, being not only in derogation of tlie marriage contract, but a collusive agree- ment to evade the due administration of justice (o). Consideration for agreements for separation deeds. We liave seen that when it is sought to obtain the specific performance of a contract the question of consideration is always material, even if the instrument is under seal. Generally it is part of the arrangement in these cases that the trustees shall indemnify the husband against the wife's debts, and this is an ample consideration for a promise on the husband's part to make provision for the wife, and of course also for his under- taking to let her live apart from him, enjoy her property separately, &c. (p). But this particular consideration is by no means necessary. The trustee's undertaking to pay part of the costs of the agreement will do as well.'^ But if the agreement is to execute a separation deed containing all usual and proper clauses, this includes, it seems, the usual covenant for indemnifying the husband, so that the usual con- 308] sideration is *in fact present (q). In the earlier cases, no doubt, it was supposed that the contract was made valid in substance as well as in form only by the distinct covenants between the hus- band and the trustee as to indemnity and payment, or rather that these were the only valid parts of the contract. But since ^yiIson v. Wilson (r) and Hunt v. Hunt such a view is no longer tenable: in Lord Westbury's words " the theory of a deed of separation is that it is a contract between the husl)and and wife through the intervention of a third party, namely the trustees, and the husband's contract for the benefit of the wife is supported by the contract of the trustees on her behalf" (s). Minor points as to separation deeds. A covenant not to sue for resti- tution of conjugal rights cannot be implied, and in the al^sence of (o) Hope v. Hope (1857) 8 D. M. the remarks in the House of Lords in & G. 731, 745, 26 L. J. Ch. 417. a subsequent appeal as to the frame ip) See Dav. Conv. 5, pt. 2. 1079. of the deed, Wilson v. Wilson (1854) (q) ffihhs V. Unrding (1870) L. R. 5 H. L. C. 40: and bv Lord Westbury, 5 Ch. 330, 39 L. J. Ch. 374. 4 D. F. & J. 234. (r) On the effect of that case see (s) 4 D. F. & J. 240. Bro^v•n, 10 Ohio St. 247; Garver r. :\Iiller. 10 Ohio St. 527; Hutton v. Hutton's Admr., 3 Pa. 100. The fact that husband and wife are livins^ apart, pursuant to an agree- ment for separation, is not a bar to a suit for divorce. .J. G. r. H. G., 33 Md. 401; Kremelberg r. Kremelberg. 52 Md. 553; Franklin r. Franklin. 154 Mass. 515; Anderson v. Anderson, 1 Edw. Ch. 380; Fosdick r. Fosdick. 15 E. I. 130. 73 The wife's release of her right to claim alimony is a sufficient considera- tion. Bratton v. Massey, 15 S. C. 277. SEPARATION DEEDS. 417 such a covenant the institution of such a suit does not discharge the other party's obligations under the separation deed (t). Subsequent adultery does not of itself avoid a separation deed unless the other party's covenants are expressly qualified to that effect (w).'^'* A covenant by the husband to pay an annuity to trustees for the wife so long as they shall live apart — or, since the Married Women's Property Act, to the wife herself — remains in force notwithstanding a subsequent dissolution of the marriage on the ground of the wife's adultery (x) •,''^ but it seems it would be void if future adultery were contemplated at the time (y). The concealment of past misconduct between the marriage and the separation may render the arrangement voidable, and so may subsequent misconduct, if the circumstances show that the separation *was fraudulently procured with the [309 present intention of obtaining greater facilities for such miscon- duct (z). A separation, or the terms of a separation, between husband and wife cannot lawfully be the subject of an agreement for pecuniary consideration between the husband and a third person. But in the case of Jones V. Waite (a) it was decided by the Exchequer Chamber and the House of Lords that the husband's execution of a separation deed already drawn up is a good and lawful consideration for a promise by a third person. A separation deed, as we have above said, is avoided by subsequent reconciliation and cohabitation (b). If it were not so, but could remain suspended in order to be revived in the event of a renewed separation, it might become equivalent to a contract providing for a {t) Jee V. Thurloiv (1824) 2 B. & {a) (1842) 1 Bing. N. C. 656, in C. 547, 26 R. R. 453. Ex. Ch. 5 Bing. N. C. 341. in H. L. (u) lb.; Evans v. Carrington 9 CI. & F. 101,' 50 R. R. 705. In the (1860) 2 D. F. & J. 481, 30 L. J. Ch. Ex Ch. both Lord Abinger and Lord 364. Denman dissented. {x) Chai-lcsworth v. Holt (1873) (b) See also Westmeath v. Sails- L. R. 9 Ex. 38, 43 L. J. Ex. 25; bury {1S31) 5 Bli. N. S. 339, 35 R. R. Sweet v. Siceet [1895] 1 Q. B. 12, 64 54. Questions may arise whether L. J. Q. B. 108. particular terms are part of the (y) Fenron v. Earl of Aylesford agreement for separation, and there- (1884) 14 Q. B. Div. 792, 53 L. J. Q. fore subject to be so avoided, or are B. 410. of a permanent and independent na- iz) Evans y. Carrington. note (u) , ture: see Nicol v. Xicol (1886) 31 and per Cotton L.J. 14 Q. B. D. at p. Ch. Div. 524. 55 L. J. Ch. 437. 795. '74 Sweet V. Sweet. [1895] 1 Q. B. 12; Dixon v. Dixon. 23 N. J. Eq. niS; 24 N. J. Eq. 133; Lister r. Lister, 35 N. J. Eq. 49, 57. Nor does the divorce and subsequent marriage of the wife. Baker v. Cooper, 7 S. & R. 500. Cp. Al- bee r. Wyman. 10 Gray, 222. And see Galusha v. Galusha, 116 N. Y. 635. 75 Kremelberg v. Kremelberg, 52 Md. 553. 27 418 UNLAAVFUL AGREEMENTS. contingent separation at a future time : and such a contract, as will' immediately be seen, is not allowable. However, a substantive and absolute declaration of trust by a third person contained in a separa- tion deed has been held not to be avoided by a reconciliation (c). Agreements for future separation void. As to all agreements or pro- visions for a future separation, whether post-nuptial {d) or ante- nuptial (e) (/), and whether proceeding from the parties themselves or from another person {f),^^ it remains the rule of law that 310] *they can have no effect. If a husband and wife who have been separated are reconciled, and agree that in case of a future separation the provisions of a former separation deed shall be revived, this agree- ment is void (/). A condition in a marriage settlement varying the disposition of the income in the event of a separation is void {g). So is a limitation over (being in substance a forfeiture of the wife's life interest) in the event of her living separate from her husband through any fault of her own: though it might be good, it seems, if the event were limited to misconduct such as would be a ground for divorce or judicial separation (h). Likewise a deed purporting to provide for an immediate separation is void if the separation does not in fact take place: for tbis shows that an immediate separation was not intended, but the thing was in truth a device to provide for a future separation {%). Nor can such a deed be supported as a voluntary settlement (A-). Reason of the distinction. The distinction rests on the following ground : — An agreement for an immediate separation is made to meet a state of things which, however undesirable in itself, has in fact become inevitable. Still that state of things is abnormal and not to be contemplated beforehand. "It is forbidden to provide for the (c) Ruffles V. Alston (1875) L. R. 841: note that this and the ease last 19 Eq. 539, 44 L. J. Ch. 388. cited were after Wilson v. Wilson. (d) Marquis of Wcstmcath \. Mar- if) See note (d) , last *page. chioness of Westrneath (1820-1) 1 (r/) See note (f), last *page. Dow. & CI. 519, 541; Westrneath v. (h) See note (e) last *page. Salishury (1831) 5 Bli. N. S. 339, 35 (i) Eindley V. Marquis of Wcst- R. R. 54. meath (1827) 6 B. & C. 200. 30 R. R- (e) J7. V. W. (1857) 3 K. & J. 382. 290: confirmed by Westrneath v. Some of the reasons given in this ^alislnry (1831) .5 Bli. N. S. 339, ease (at p. 386) cannot since Hunt 395-7, 35 R. R. 54. 55. V. Hunt be supported. Uc) Bindley w. Mulloney (1869) L. if] Cartti-riqht V. Carticright R. 7 Eq. 343. (1853) 3 D. M. & G. 982, 22 L. J. Ch. 76 People r. Mercein. 8 Paige, 47, 68; Gaines' Admrx. v. Poor, 3 Met. (Ky.> 503, 506-507. IMMOEAL PUBLICATIONS. 419 possible dissolution of the marriage contract, which the policy of the law is to preserve intact and inviolate" (I). Or in other words, to allow validity to provisions for a future separation would be to allow the parties in effect to make the contract of marriage determinable on conditions fixed beforehand by themselves (m). * Immoral publications: Being criminal offences, these are contrary [311 to positive law. It is a well-established rule that no enforceable right can be acquired by a blasphemous, seditious, or indecent publication, whether in words or in writing, or by any contract in relation thereto (u) ; but it does not really belong to the present head. The ground on which the cases proceed is that the publication is or would be a criminal offence ; not merely immoral, but illegal in the strict sense. The criminal law prohibits it as malum in se, and the civil law takes it from the criminal law a^ malum prohibitum, and refuses to recog- nize it as the origin of any right (o). Then the decisions in equity profess simply to follow the law by refusing in a doubtful case to give the aid of equitable remedies to alleged legal rights imtil the existence of the legal right is ascertained (p). It would perhaps be difficult to assert as an abstract proposition that a Court adminis- tering civil justice might not conceivably pronounce a writing or dis- course immoral which yet could not be the subject of criminal pro- ceedings. But we do not know of such a jurisdiction having ever in (I) 3 K. & J. 382. Joseph v. McCowsky, 96 Cal. 518; {ni) Agreements between husband Laird r. Wilder, 9 Bush, 131; Siegert and wife contemplating a future ju- v. Abbott, 61 Md. 276; McConnell r. dicial separation (separation de Keed, 128 Mass. 477 ; Koehler f. Saun- corps) are void in French law: Sirey ders, 122 N. Y. 73; Prince's Mfg. Co. & Gilbert on Code Nap. art. 1133, no. v. Prince's Paint Co. 135 N. Y. 24; 55. Buekland v. Rice, 40 Ohio St. ,526; (n) A somewhat analogous ques- Palmer v. Harris, 60 Pa. 156; Sini- tion is raised by deceptive trade mons Medicine Co. r. Mansfield Drug marks. A trade mark likely to de- Co. 93 Tcnn. 84. Nor will a con- ceive the public will not be regis- tract be enforced whicli has for its ob- tered: Ejio v. Dunn (1890) 15 App. ject the sale of articles innocent in Ca. 252, 63 L. T. 6. [Nor protected themselves but intended to be used in bv a court of equitv. See Manhattan such a wav as to deceive or defraud Medicine Co. v. Wood. 108 U. S. 218 : the public. Church v. Proetor, 66 Holzapfel's Co. v. Pvahtjen's Co. 183 Fed. Rep. 240 (C. C. A.) ; Materne IT. S. 1 : Alaska Packing Assoc, r. i\ Horwitz, 101 N. Y. 469.] Alaska Imp. Co. 60 Fed'. Eep. 103; (o) E.g. StocMale v. Ontchyn California Fig Svrup Co. v. Putnam, (1826) 5 B. & C. 173, 29 R. R. 207. 69 Fed. Rep. 740 (C. C. A.); (cp. (p) F!ouihei/ v. Sherwood (1817) 2 W^orden v. California Fig Svrup Co. Mer. 435: Lairrence v. Smith (1822) 102 Fed. Rep. 334 (C. C' A.)) : Ray- Jac. 471, 23 R. R. 123. For a full mond V. Roval Baking Powder Co. 85 account of the cases see Shortt on Fed. Rep. 231 : Dndirrian r. Yacubian, the Law relating to Works of Litera- 08 Fed. Rep. 872. 876: Wrislev Co. v. ture and Art, pp. 3-11, 2nd ed. 1884. Iowa Soap Co. 104 Fed. Rep. 548; 420 UNLAWFUL AGRJIEMENTS. fact been exercised ; and considering the very wide scope of the crim- inal law in this behalf (q), it seems unlikely that there should arise any occasion for it. Some expressions are to be found which look like claims on the part of purely civil Courts to exercise a general moral censorship apart from any reference to the criminal law. But these are overruled by modern authority. At the present day it is not true that " the Court of Chancery has a suporintendeney over all Ijooks, and might in a summary way restrain the printing or publishing 312] any that contained reflections on religion *or morality," as was once laid down by Lord Macclesfield ; or that " the Lord Chancellor would grant an injunction against the exhibition of a libellous picture," as was laid down by Lord Ellenborough (7-). On the whole it seems that for all practical purposes the civil law is determined by and co-extensive with the criminal law in these matters : the question in a given case is not simply whether the publication be immoral, but whether the criminal law would punish it as immoral. Contracts as to slaves in U. S. held void in some States though lawful when made. A very curious doctrine of legal morality was started in some of the United States after the abolition of slavery. It was held that the sale of slaves being against natural right could be made valid only by positive law, and that no right of action arising from it could subsist after the determination of that law.''"'' The Supreme Court of Louisiana in particular adjudged that contracts for the sale of persons, though made in the State while slavery was lawful, must be treated as void : but the Supreme Court of the U. S. did not hold itself bound by this view on appeal from the Circuit Court, and distinctly refused to adopt it, thinlving that neither the Constitutional Amendment of (g) See Russell on Crimes, Bk. 2, something? like the older view seems c. 24, and Stephen's Digest of the to be involved in Coican v. Milbourn Criminal Law, artt. 91-95, 161, 172. (1867) L. R. 2 Ex. 230, 36 L. J. Ex. (r) Emperor of Austria v. Day <& 124, but see contra the summing up Kossuth (1861) 3 D. F. & J. 217. 238. of Lord Coleridge C.J. in Reg. v. 30 L. J. Ch. 690. As to blasphemous Ramsey d Foote, 15 Cox, C. C. 231, or quasi-blasphemous publications 484, 489. TTOsborn r. Nicholson, 1 Dill. 219: Buckner r. Street, 1 Dill. 248; Shorter r. Cobb, 39 Ga. 285; Wainwright i\ Bridges, 19 La. Ann. 234; Rodriguez c. Bienvenu, 22 La. Ann. 300. Where the highest court of a State so decides on general principles of public policy or morality, the Supreme Court of the United States lias no power of review. Palmer r. Marston. 14 Wall. 10; Dela- ware Navigation Co. v. Reybold. 142 L^. S. 636. But it has power where the decision of the State court is based upon a constitutional or legislntive enactment, passed after the contract was made. Delmas v. Insurance Co., 14 W^all. 661. PUBLIC policy; wagers. 421 1865, nor anything that had happened since, avoided a contract good in its inception (s).''^ C. Agreements contrary to public policy. Of the doctrine of public policy in general. Before we go through the different classes of agreements which are void as being of mischievous tendency in some one of certain different ways, something must be said on the more general question of the judicial meaning of " pub- lic *policy." That question is, in effect, whether it is at the [313 present time open to courts of justice to hold transactions or disposi- tions of property void simply because in the judgment of the Court it is against the public good that they should be enforced, although the grounds of that judgment may be novel. The general tendency of modern ideas is no doubt against the continuance of such a juris- diction. On the other hand there is a good deal of modern and even recent authority which makes it difficult to deny its continued exist- ence. Its extension by anxiety of Courts to discourage wagers, while wagers as such were valid contracts. As a matter of history, there seems to be little doubt that the doctrine of public policy, so far as regards its assertion in a general form in modern times, if not its actual origin, arose from wagers being allowed as the foundation of actions at com- mon law. Their validity was assumed without discussion until the judges repented of it too late. Eegretting that wagers could be sued on at all (t), they were forced to admit that wagering contracts as such were not invalid, but set to work to discourage them so far as they could. This they did by becoming " astute even to an extent bordering upon the ridiculous to find reasons for refusing to enforce them" in particular cases (u). Thus a wager on the future amount of hop duty was held void, because it might expose to all the world the amount of the public revenue, and Parliament was the only proper place for the discussion (s) Boyce v. Tahh (1873) 18 Wall. all watrers on events in which the par- ,546. Cp. White v. Hart, 13 Wall. ties had no interest. 646; Osborn v. Nicholson, ib. 654 {u) Per Parke B. Egcrton v. Earl (1871). Broiarlow (1853) 4 H. L. C. at p. it) Good V. Elliott (1700) 3 T. R. 124; per Williams J. ib. 77; per 693. 1 R. R. 803, where Buller J. pro- Alderson B. ib. 109. posed (>vithout success) to hold void T8 White r. Hart. 13 Wall. 646: Osborn r. Nicholson, IS' Wall. 654; Round- tree V. Baker, 52 111. 241; Bradford v. Jenkins. 41 Miss. 328; Calhoun r. Calhoun, 2 S. C. 283; Tavlor r. Mavhew, 11 Heisk. 596. See also Sterling Remedy Co. v. Wyckoff, 154 Ind. 437. 422 UNLAWFUL AGREEMENTS. of such matters (x). Wliere one proprietor of carriages for hire in a town had made a bet with another that a particular person would go to the assembly rooms in his carriage, and not the other's, it was thought that the bet was void, as tending to abridge the free- dom of one of the pul^lic in choosing his own conveyance, and to ex- 314] pose him to "the inconvenience of being impor*tuned by rival coachmen" (y). A wager on the duration of the life of Xapoleon was void, because it gave the plaintiff an interest in keeping the king's enemy alive, and also because it gave the defendant an interest in. compassing his death by means other than law.^ ^ warfare (z). Later remarks on these decisions. This was probably the extreme case, and has been remarked on as of doubtful authority (a). But the Judicial Committee held in 1848, on an Indian appeal (the Act 8 & 9 Vict. c. 109, not extending to British India), that a wager on the price of opium at the next Government sale of opium was not illegal (&). The common law was thus stated by Lord Campbell in delivering the judgment : — " I regret to say that we are bound to consider the common lav of England to be that an action may be maintained on a wager, although the parties had no previous interest in the question on which it is laid, if it be not against the interests or feelings of third persons, and does not lead to indecent evidence, and is not contrary to public policy. I look with concern and almost with shame on the subterfuges and contrivances and evasions to which judges in England long resorted in struggling against this rule '' (c). It may surely be thought doubtful wdiether decisions so produced and so reflected upon can in our own time be entitled to any regard at all. But it has teen said that they establish a distinction of im- portance between cases where the parties "have a real interest in the matter, and an apparent right to deal with it" and where they "have no interest but what they themselves create by the contract;" that in the former case the agreement is void only if " directly op- posed to public welfare," but in the latter " any tendency whatever 315] to public mischief" will *render it void (d). It is difficult to (.r) Aihcrfold v. Beard (1788) 2 in the Privy Council in the case next T. R. 610, 1 R. R. 556. cited. 6 Moo. P. C. .312. "^ (ij) EUham v. Kingsman (1818) 1 (&) By the Indian Contract Act, s. B. & Aid. 683. 19 R. R. 417: this, 30, agreements by way of wager are however, was not strictly necessary now void, with an exception in favour to the decision. of prizes for horse-racing of the value (z) Gilbert v. Hyhes (1812) 16 of Rs. 500 or upwards. East, 150, 14 R. R. 327. ic) Ramloll Thackoorseydnss V. (a) By Alderson B. in Egerion v. l^oojiinniull Dhondmull (1848) 6 Earl Brownlow, 4 H. L. C. "^109, and Moo. P. C. 300. 310. (d) (1853) 4 H. L. C. 148. PUBLIC POLICY. 423 accept tills distinction, or at any rate to see to what class of contracts other than wagers It applies. In the case of a lease for lives (to take an instance often used) the parties '"'have no interest but what •they themselves create by the contract " in the lives named in the lease: they have not any "apparent right to deal with" the length ■of the Sovereign's or other illustrious persons' lives as a term of their contract: yet it has never been doubted that the contract is perfectly good. Egerton v. Brownlow. The leading modern authority on the general doctrine of " public policy " is the great case of Egerton v. Earl Brownloiv (e). By the will of the seventh Earl of Bridgewater a series of life interests (/') were limited, subject to provisoes which were generally called conditions, but were really conditional limita- tions by way of shifting uses upon the preceding estates (g). The effect of these was that if the possessor for the time being of the estates did not acquire the title of Marquis or Duke of Bridgewater, or did accept any inferior title, the estates were to go over. The House of Lords held by four to one, in accordance with the opinion of two judges (h) against eight (i), that the limitations were void as being against public policy. Opinions of judges. The whole subject was much discussed in the opinions on both sides. The greater part of the judges insisted on such considerations as the danger of limiting dispositions of prop- erty on speculative notions of impolicy (k) ; the vague and unsatis- factory character of a jurisdiction founded on general opinions of political expedience, as distinguished *from a legitimate use of [316 the policy, or rather general intention, of a particular law as the key to its construction, and the confusion of judicial and legislative functions to which the exercise of such a jurisdiction would lead (l) ; and the fallacy of supposing an object unlawful because it might possibly be sought by unlawful means, when no intention to use such means appeared (m). On the other hand it was pointed out that these (e) 4 H. L. C. 1-250. (h) Pollock C.B. and Piatt B. (f) Not estates of freehold with re- (i) Crompton, Williams, Cress- mainder to first and other sons in tail well, Talfourd, Wightman, and Erie in the usual way. but a chattel inter- J.J., Alderson and Parke BB. Coler- est for 99 years, if the taker should idge J. thought the limitations good so long live, remainder to the heirs in part only. male of his body. See Dav. Conv. 3, {k) Crompton J. at p. 68. pt. 1, 3.51. il) Alderson B. 4 H. L. C. at p. ((7) See Ix)rd St. Leonards' judg- 106: Parke B. at p. 123. ment, 4 H. L. C. at p. 208. (m) Williams J. at p. 77; Parke B. at p. 124. 424 UNLAWFUL AGREEMENTS. limitations held out " a direct and powerful temptation to the exer- cise of corrupt means of obtaining the particular dignity " (n) ; that besides this the restraint on accepting any other dignity, even if it did not amount to forbidding a subject to obey the lawful com- mands of the Sovereign (o), tended in possible events to set private interest in opposition to public duty {p) ; and that the provisoes as a whole were fitted to bias the political and public conduct of the per- sons interested, and introduce improper motives into it (9), and also to embarrass the advisers of the Crown, and influence them to recom- mend the grant of a peerage or of promotion in the peerage for reasons other than merit (r). Opinions in House of Lords. Lord L3'ndhurst, Lord Brougham, Lord Truro, and Lord St. Leonards adopted this view. Lord Cranworth dissented, adhering to his opinion in the Court below (s), and made the remark (which is certainly difficult to answer) that the Thellusson. will, which the Courts had felt bound to uphold, was much more clearly against public policy than this. The fullest reasons on the side of the actual decision are those of Pollock C.B. and Lord St. 317] Leonards. Their '''language is very general, and they go far in the direction of claiming an almost unlimited right of deciding cases according to the judge's view of public policy for the time being. Lord St. Leonards mentioned the fluctuations of the decisions on agreements in restraint of trade as showing that rules of common law have been both created and modified by notions of public policy (t). He also said that each case was to be decided upon principle, but abstract rules were not to be laid down («). If this means only that the Court is to be guided by recognized principles, but will not and cannot bind itself by verbal definition, and in the application of con- stant principles must have due regard to any new or special facts, the proposition is correct and important, though by no means con- fined to this topic; but if it means to say that the court may lay down (n) Flatt B. at p. 09: Lord St. {p) Pollock C.B. at p. 151. Leonards at p. 232; Lord Brougham (q) Lord Lvndhurst at p. 163. at p. 172. (r) Follo<-k C.B. and Lord St. (o) On this point the prevailing Leonards, supra. opinion, on the whole, was that a (s) 1 Sim. N. S. 464. subject cannot refuse a peerage [ep. {t) See as to the variation of the 5 Ric. 2. St. 2, c. 4], but cannot be "policy of the law" in general, compelled to accept it bv anv particu- Ernnturel v. Evantnrel (1874) L. R. lar title, or at all events cannot be 6 P. C. at p. 20. 43 L. J. P. C. 58. compelled to accept promotion by any {u) At pp. 238-9. particular new title if he is a peer already. PUBLIC roLiCY. 425 new principles of public policy without any warrant even of analogy, it seems unwarranted. Effect of the decision itself. But the ratio decidendi of the case does not in truth seem to require any of these wide assertions of judicial discretion. The limitations in question were held bad because they amounted in effect to a gift of pecuniary means to be used in obtain- ing a peerage, and offered a direct temptation to the improper use of such means, and the improper admission of private motives of in- terest in political conduct: in short, because in the opinion of the Court they had a manifest tendency to the prejudice of good govern- ment and the administration of public affairs. But it is perfectly well recognized that transactions which have this character are all alike void, however different in other respects. Such are champerty and maintenance, the compounding of offences, and the sale of offices. The question in the particular case was whether there was an ap- parent tendency to mischiefs of this kind, or only a remote possi- bility of inconvenient consequences. The decision did not *create [318 a new kind of prohibition, but affirmed the substantial likeness of a very peculiar and unexampled disposition of property to other dispositions and transactions already known to belong to a forbidden class. Egerton v. Earl Brownlow, however, is certainly a cardinal au- thority for one rule which applies in all cases of " public policy " : namely that the tendency of the transaction at the time, not its actual result, must be looked to."^^ It was urged in vain that the will of the seventh Earl of Bridgewater had in fact been in existence for thirty 3^ears without producing any visible ill effects {x). The prevailing modern view is expressed by the following remarks of the late Sir G. Jessel : — " It must not be forgotten that you are not to extend arbitrarily tliose rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy requires, it is that men of full age and competent understanding s!iall have the utmost liberty of contracting, and that their contracts, when en- {x) Cp. Da Costa v. Jones (1778) notwithstanding it did not appear Cowp. 729. Wager on sex of third that the person had made any objec- person void, as offensive to that per- tion. and the cause had in fact been son and tending to indecent evidence: tried without any indecent evidence. 79 See United States v. Knight Co., 156 U. S. 16; More v. Bennett, 140 Til. 69: Chapin v. Brown, 8.3 la. 150: Anderson r. Jett. 89 Ky. 375: Fuller r. Dame. 18 Pick. 472; Richardson v. Crandall, 48 N. Y. 348. 362: Judd r. Har- rington, 139 N. Y. 110: People v. Sheldou. 139 N. Y. 251: People r. Milk Exch., 145 N. Y. 267; Central Salt Co. r. Guthrie, 35 Ohio St. 672; Holladay V. Patterson, 5 Oreg. 177, 180. 426 UNLAWFUL AGREEMENTS. tered into freely and voluntarily, shall be held sacred and shall be enforced by courts of justice. Therefore, you have this paramount public policy to consider — that you are not lightly to interfere with this freedom of con- tract " (i/).so The wide discretion formerly claimed by the judges in the some- what analogous field of the law of conspiracy has been finally dis- credited by the House of Lords as well as the Court of Appeal in the Mogul Steamship Co/s case (z). We now proceed to the several heads of the subject. (a.) Public policy as touching external relations of the State. First, as to matters concerning the commonwealth in its relations with foreign powers. 319] "On the principles of the English law it is not com*petent to .any" domiciled British (a) "subject to enter into a contract to do •anything which may be detrimental to the interests of his own country " (&). An agreement may be void for reasons of this kind either when it is for the benefit of an enemy, or when the enforcement of it would be an affront to a friendly State. Trading with enemy. As to the first and more important branch of this rule : " It is now fully established that, the presumed object of war being as much to cripple the enemy's commerce as to capture his property, a declaration of war imports a prohibition of commercial intercourse and corres])ondence with the inhabitants of the enemy's •country, and that such intercourse, except with the license of the Crown, is illegal" (c).^^ iy) Printing and Numerical Regis- Bell v. Rcid (1813) 1 M. & S. 726, 14 tcring Co. v. Sar/ipson (1875) L. R. R. R. ;'ir)7. 19 Eq. 462, 44 L. J. Ch. 705. (6) 7 E. & B. 782. iz) Mogul Steamship Co. \. M'Gre- (c) Esposito \. Boicden {IS57) (in gor, Gow d Co. [1892] A. C. 25, 61 Ex. Ch.) 7 E. & B. 763, 779, 24 L. J. L. J. Q. B. 295. Q. B. 210; Kershaw v. Kelsey, 100 (a) The rule does not apply to Mass. 561. British subjects domiciled abroad: 80 Approved in Tullis v. Jacson, [1892] 3 Ch. 441, 445: Badische Co. v. S(fhott, [1892] 3 Ch. 447, 4.52; Underwood v. Barker, [1899] 1 Ch. 300. 305, 308; Baltimore Ry. Co. r. Voigt. 176 U. S. 498. 505; United States r. Trans- Missouri Assoc, 58 Fed. Rep. 58. 59; United States Co. r. Provident Co.. 64 Fed. Rep. 946, 949; National Co. r. Union Hospital Co.. 45 Minn. 272; Diamond Match Co. v. Roeber. 106 N. Y. 473. 482; Reece ;;. Kyle, 49 Ohio St. 475, 487; McCandless v. Allegheny Steel Co., 1,52 Pa. 139. 151. 81 " The law of nations, as judicially declared, prohibits all intercourse be- tween citizens of the two belligerents, which is inconsistent with the state of ■war between their countries: and this includes any act of voluntary sub- mission to the enemy, or receiving his protection; as well as any act or con- tract which tends to increase his resources ; and every kind of trading or TRADING WITH ENEMIES. 437 Potts V. Bell. The case of Potts v. Bell (d), decided by the Ex- chequer Chamber in 1800, is the leading authority on this subject. The following points were there decided : It is a principle of the common law (e) that trading with an ■enemy without licence from the Crown is illegal. Purchase of goods in an enemy's country during the war is trading with the enemy, though it be not shown that they were actually pur- chased from an enemy :*^ and an insurance of goods so purchased is void. As to insurances originally effected in time of peace : " When a Eritish subject insures against captures, the law infers that the con- tract contains an exception of captures made by the government of his own country" (f). There is no rule of public policy to prevent insurance of a subject of a foreign State against " arrests of all kings, princes, and peoples " from including seizure by that *State before, though shortly before, the outbreak of war with [320 Great Britain, where the policy is sued on after the war is over (g). Effect of war on subsisting contracts. The effect of the outbreak of war upon subsisting contracts between subjects of the hostile states varies according to the nature of the case. It may be that the con- tract can be lawfully performed by reason of the belligerent govern- ments or one of them having waived their strict rights : and in such case it remains valid. In Clementson v. Blessig (h) goods had been id) (1800) 8 T. R. 548, 5 R. R. {g) Driefontein Consolidated Gold 452. Mines v. Janson [1901] 2 K. B. 419, (e) In the Admiralty it was 70 L. J. K. B. 881, C. A., diss. Already beyond question: see the Vaughan Williams, L.J. series of precedents cited in Potts v. {h) (1855) 11 Ex. 135. and on the Bell. subject gonernlly see the reporters' if) Furtadu v. Rodgers (1802) 3 B. note, pp. 141-5. " .& P. 191. 200. fi R. R. 752; Ex parte Lee (1806) 13 Ves. 64. commercial dealing or intercourse, whether by transmission of money or goods or orders for the delivery of either, between the two coimtries, whether directly or indirectly, or through the intervention of third per- sons or partnerships, or by insurances upon trade with or by the enemy."' Kershaw V. Kelsev, 100 Mass. 561, 572-3; Scholfield (;. Eichelberger, 7 Pet. 586; Cappell r. Hall. 7 Wall. 542, 554; United States r. Grossmayer, 9 Wall. 72; Montgomery v. United States, 15 Wall. 395: United States v. Quiglev, 103 U. S. 595:' Carson v. Dunham, 121 U. S. 421; The Rapid, 8 Cr. 155; Phillips r. Hatch, 1 Dill. 571; Habricht v. Alexander's Exrs., 1 Woods. 413; Perkins v. Rogers, 35 Ind. 124: Hill v. Baker. 32 la. 3f)2 ; Hennen v. Gilman, 20 La. Ann. 241: Shaklett r. Polk. 51 Miss. 378, 391: Rhodes V. Summerhill. 4 Heisk. 204; 1 Kent. 66. The particular contracts, however, relating to real estate, in Kershaw v. Kelsey, 100 Mass. 561, and Brown r. Gardner. 4 Lea, 145, were held to be lawful. See also Williams v. Paine, 169 U. S. 55. 72. ^Contra. Briggs v. United States, 143 U. S. 346. See also Briggs v. Walker, 171 U. S. 466. 428 UXLAAVFUL AGREEMENTS. ordered of the plaintiff in England by a firm at Odessa before the declaration of war with Eussia. By an Order in Council six weeks were given after the declaration of war for Eussian merchant vessels to load and depart, and the plaintiff forwarded the goods for ship- ment in time to be lawfully shipped under this order : it was held that the sale remained good.^^ If the contract cannot at once be lawfully performed, then it is suspended during hostilities (i) unless the nature or objects of the contract be inconsistent with a suspension, in which case " the effect is to dissolve the contract and to absolve both parties from further performance of it" {l').^'^ The outbreak of a war dissolves a partner- (t) Ex parte Boussmaker (1806) Q. B. 153. [Hanger v. Abbott, 6 13 Ves. 71, 9 R. R. 142. Wall. 532, 53G.] A contract to carry (k) Lsposito v. Boicden (1857) 7 goods has been held to be only siis- E, & B. 703, 783, 27 L. J. Q. B. 17 pended l)y a temporary embargo, (in Ex. Ch.) revg. s. c. 4 E. & B. though it lasted two vears: Hadlej/ P63. 24 L. J. Q. B. 210. For a later v. Clarke (1799) 8 T. R. 259, 4 R. R. application of the same reason of 041. »SVfZ qn. is not this virtually convenience, cp. Geipel v. Smith oxerrviledhy Ei^posito V. Bowde7i? (1872) L. R. 7 Q. B. 404, 41 L. J. S3 Although a state of -war actually existed before April 23, 1861, yet a partnership between a resident of New \ork, and other parties, residents of Louisiana, was not dissolved by the late Civil War as early as that date, and all the members of the firm were bound hy its acceptance of a bill of excnange bearing date and accepted on that day, and payable one year thereafter; tne Act of Congress of July 13, 1801, and the President's proclamation of August 16, 1861, issued luider its authority, exhibiting " a clear implication that betore the first was enacted, and the second was issued, commercial intercourse was liot unlawful; that it had been peruiitled."' Matthews v. .McStea, 91 U. S. 7. &4 See Odlin r. Insurance Co., 2 Wash. C. C. 312; Baylies v. Fettyplace, 7 Mass. 325; ^IcBride V. Insurance Co., 5 Johns. 299; Palmer v. Loriilard, 16 Johns. 34b. In Statham v. Insurance Co., 93 U. S. 24, the court was called upon to pass upon the effect of the non-payment of the stipulated annual premium in a policy of life insurance conditioned to be void on non-pay- ment of the premium, where the failure to pay was caused by the inter- vention of war between the territories iu which the insurance company and the assured, respectively, resided, which made it unlawful for them to hold intercourse. A majority of the court held: 1. That such a policy "is not an insurance from year to year like a common fire policy, but the premiums constitute an annuity, the whole of which is the consideration for the entire insurance for life ; and the condition is a condition subsequent, making by its non-performance the policy void." 2. That time is of the essence of the con- tract, and a failure to pay involves an absolute forfeiture, but that, under the circumstances, if the company insisted on a forfeiture the assured was entitled to the equitable value of the po.icy arising from the premiums actually paid, i. e., the difference between the cost of a new" policy, and the present value of the premiums yet to be paid on the forfeited policy when the forfeiture occurred. Cp. Crawford v. Insurance Co., S. C. Tenn. 5 C. L. J. 100; Abcll V. Insurance Co., 18 W. Va. 400. 3. That the doctrine of revival of contracts suspended during the war " cannot be invoked to revive a contract which it would be unjust or inequitable to revive — as where (as here), time is of the essence of the contract, or the parties cannot be made equal." Waite, C. J., and Strong. J., dissented, holding that failure to pay the annual premium, when it matured, put an end to the policy, not- withstanding the default was occasioned by the war. Ace. Tait v. Tnstirance Co., 1 Flipp. 288; Woithington r. Insurance Co., 41 Conn. 372; Dillard v. TRADING WITH ENEMIES. 429 ship previously existing between subjects of the two hostile coun- tries {l}.^^ *In Esposito V. Boivden (l), a neutral ship was chartered to [321 proceed to Odessa, and there load a cargo for an English freighter, and before the ship arrived there war had broken out between England and Eussia, and continued till after the time when the loading should have taken place : here the contract could not be performed without trading with the enemy, and in such a case it is convenient that it should be dissolved at once, so that the parties need not wait in- definitely for the mere chance of the war coming to an end, or its otherwise becoming possible to perform the contract lawfully. Bills of exchange between England and hostile country. Questions have arisen on the validity of bills of exchange drawn on England in a hostile country in time of war. Here the substance of the transaction has to be looked at, not merely the nationality of tlie persons who are ultimately parties to an action on the bill. Wliere a bill was drawn on England by an English prisoner in a hostile country, this was held a lawful contract, being made between English subjects; and by the necessity of the case an indorsement to an alien enemy was further held good, so that he might well sue on it after the return of peace (m). But a bill drawn by an alien enemy on a domiciled (l) Griswold v. Waddington (1818) that in the circumstances the assured 15 Johns. (Sup. Ct. N. Y. ) 57, in were entitled to the surrender value 8 The assignment by a public officer of a portion of his salary not yet due is void. Shannon /\ Bruner, 36 Fed. Rep. 147 ; Schloss V. Hewlett, 81 Ala. 266: King v. Hawkins. 10 Pac. Rep. 434 (Ariz.) ; Bangs r. Dunn. 66 Cal. 72; Lewis r. Denver, 9 Col. App. 328; Holt r. Thurman, 111 Kv. 84; State v. Williamson. 118 Mo. 146; Real r. :McVicker. 8 Mo. App. 202: Swenk V. Wvkoff, 46 X. .T. Eq. 560; Bliss r. Lawrence, 58 N. Y. 442'; Bowery Bank v. Wilson. 122 N. Y. 478: Billinsjs v. O'Brien, 14 Abb. Pr. N. S. 238; National Bank r. Fink, 86 Tex. 303. And see Field v. Chipley, 79 Ky. 260; Sandwich 440 UNLAWFUL AGREEMENTS. 329] *military pay and judicial salaries are not assignable. The rule- is that " a pension for past eervices may be aliened, but a pension for supporting the grantee in the performance of future duties is in- alienable": and therefore a pension given not only as a reward for past services, but for the support of a dignity created at the same time and for the same reason, is inalienable (?•). But an assign- ment by the holder of a public office of a sum equivalent to a propor- tionate part of salary, and secured to his legal personal representa- tives on his death by the terms of his appointment, is not invalid, ?uch a sum being simply a part of his personal estate like money secured by life insurance (s).^^ A clergyman having cure of souls is not, as such, a public officer for the purpose of this rule (t). A mortgage by an officer of the Customs of his disposable share in the " Customs Annuity and Benevolent Fund " created by a special Act has been unsuccessfully disputed as contrary to the policy of the Act (w). " Stifling prosecutions " — Williams v. Bayley. Agreements for tlie pur- pose of "stifling a criminal prosecution" are void as tending to ob- struct the course of public justice.^ . An agreement made in considera- (r) Davis V. Duke of Marlborough (s) Arbitthnot v. Norton (1846) 5 (1818) 1 Swanst. 74, 79, 53 R. R. 29, Moo. P. C. 219. 31. Cp. Arbuthnot V. Norto7i (1846) (f) Be Mirams [1891] 1 Q. B. 594, 5 Moo. P. C. 219. And see aiithori- 60 L. J. Q. B. 397. ties collected in the notes to Rijall v. (;/) Maclean's trusts (1874) L. R. Roicles (1749) in 2 Wh. & T. L. C. 19 Eq. 274. Mfg. Co. V. Krake, 66 Minn. 110; Spencer v. Morris, 67 N. J. L. 500, 54 L. R. A. 566, n. Contra, State v. Hastings, 15 Wis. 75. The principle has been applied to private trusts; hence the commissions of an executor until liquidated in the manner prescribed by law are not as- signable. Be King's Est., 110 Mich. 203; Be Worthington, 141 N. Y. 9. 99 In this countrv the pensions of soldiers and sailors cannot be assigned. IT. S. Rev. Stat., § 4745. Nor attached. lb., § 4747. _ But this exemption protects The money only until transmitted to the pensioner. When once in his hands it is liable to seizure. Mcintosh r. Aubrev. 185 U. S. 122 ; Johnson r. Elkins, 90 Kv. 163. See further. 31 Cent. L. J. '324. 1 Lound V. Grimwade, 39 Ch. D. 605 ; Windhill Board of Health v. Vint, 45 Ch. D. 351; Jones v. Merioneth Building Sec, [1891] 2 Ch. 587, [1892] 1 Ch. 173; United States Fidelity Co. v. Charles, 131 Ala. 658; Kirkland r. Ben- jamin, 67 Ark. 480; Mc^Malion v. Smith, 47 Conn. 221: Chandler r. Johnson, 39 Ga. 85; Goodwin r. Crowell. 56 Ga. 566; Jones r. Dannenberg Co.. 112 Ga. 426; Henderson r. Palmer, 71 111. 579; Reed V. McKee. 42 la. 689; Smith r. Steely, 80 la. 738; Friend V. Miller. 52 Kan. 139; Kimbrough v. Lane, 11 Bush, 556; Shaw r. Reed, 30 ]\Ie. 105; Taylor r. J-^ques, 106 Mass. 291; Gor- ham r. Keves. S. C. Mass.; Snider r. Wiliev. 33 :Mich. 483; Sumner r. Sum- ner. 54 Mo'. 340; Baker v. Farris. 61 Mo. 389: Sliaw v. Spooner. 9 N. H. 197; Havnes v. Rudd. 102 N. Y. 372 ; Buffalo Press Club r. Greene. 26 N. Y. Supp. 525^ 33 N. Y. Supp. 286: Lindsay r. Smith. 78 N. C. 328: Insurance Co. r. Hull. 51 Ohio St. 270: Riddle v. Hall, 99 Pa. 115: Roll r. Raguet. 4 Ohio, 400; Raguet V. Roll, 7 Ohio (pt. 1), 76; Wright v. Rindskopf, 43 Wis. 344. See COMrOUNDIKG OFPENCES. 441 tion ostensibly of the giving up of certain promissory notes, the notes in fact having forged indorsements upon them, and the real consideration appearing by the circumstances to be the forbearance of the other party to prosecute, was held void on this ground in the House of Lords. The principle of the law as there laid down by Lord Westbury is " That you shall not make a trade of a felony " (x). {jc) Willianis v. Baylei/ (18GG) L. R. 1 H. L. 200, 220, 35 L. J. Ch. 717. also Weber r. Shav, 56 Ohio St. 110; City National Bank v. Kusworm, 88 Wis. 188; Mack i'. Prang, 104 Wis. 1, 26 L. R. A. 48. Cp. Allen r. Dunham, 92 Tenn. 257, 209; Loud v. Hamilton, 45 L. R. A. 400 (Tenn.). If a prosecution is pending when the agreement was made it is immaterial that no crime had in fact been committed. Manning v. CoIunibi:in Lodge, 57 N. J. Eq. 338. 340: Koons v. Vaueonsant, 129 Mich. 260; but if no prosecution had been begun the weight of authority is that the agreement is not illegal. Plant V. Gunn, 2 Woodsr372; Manning r. Columbian Lodge, 57 N. J. Eq. 338; Steuben Co. Bank v. Mathewson, 5 Hill, 249; Catlin t. Henton, 9 Wis. 476. But see contra, Koons r. Vaueonsant, 129 Mich. 260. A promise to pay one for using his influence to have criminal proceedings dismissed is void. Rhodes v. Neal, 64 Ga. 704; Ricketts v. Harvey, 78 Ind. 152; Averbeck v. Plall, 14 Bush, 505; Ormerod r. Dcarman, 100 Pa. 501; Barron r. Tucker, 53 Vt. 338. So is an agreement to indemnify another for becoming bail for one arrested for a crime so as to enable tlie latter to flee from justice; Dunkin r. Hodge, 40 Ala. 523; Baehr r. Wolff, 59 111. 470. Or an agreement by a fugitive from justice about to be surrendered for extra- dition, to pay money in consideration of forbearance to prosecute the proceed- ings against him. Dixon r. Olmstead, 9 Vt. 310; Fay r. Oatley, 6 Wis. 42. Or a promise to pay money in consideration of not searching the house of a, thief for stolen goods until the next day. Merrill v. Carr, 00 X. H. 114. Or in consideration of a promise to sign a petition to the judge for clemency in the sentence of a prisoner. Buck r. Bank, 27 Mich. 293. "A contract conditioned for the execution and deposit of certain promissory notes by one under sentence for the commission of a crime, to be delivered to the prosecuting witness upon certain conditions, one of which was that the maker should receive a pardon, or be acquitted on a new trial, is illegal and void, as against public policv." Haines V. Lewis, 54 la. 301. And see Commrs. of Guilford Co. v. March. 89 N. C. 268. A promise to pay one wanted as a witness in a criminal proceeding for keep- ing out of the jurisdiction of the court, so as to evade service of process upon him, is void. Bierbauer r. Wirth, 10 Biss. 60; Valentine r. Stewart, 15 Cal. 387. So is a promise to pay an attorney for pi'ocuring the release from jail of a witness against the promisor in order that he might be removed and his testimony not obtained. Crisup r. Grosslight, 79 Mich. 380. But ■' in all offenses which involve damages to an injured party for which he may maintain an action, it is competent for him, notwithstanding they are also of a public nature, to compromise or settle his private damage in any way he may think fit." Keir r. Leeman, 9 Q. B. 371, 375: Flower r. Sadler, 10 *Q. B. D'. 572; McClatchie V. Haslam, 65 L. T. 691; Paige v. Hieronvmus, 192 111. 546: Powell v. Flanary. 109 Kv. 342: Thorn r. Pinkham, 84 Me." 101; Beath r. Chapoton. 115 Mich. 500; Cass County Bank r. Brickner. 34 Neb. 510; Barrett r. Weber, 125 N. Y. 18; Portner r. Kirschner. 109 Pa. 472. And an agreement on the part of a prosecuting officer in consideration of testimony by one jointly chai-ged with a crime to recommend a nol. pros, to the court is not illegal. Nickelson v. Wilson, 60 N. Y. 362; Rogers v. Hill 22 R. I. 496. 442 UNLAWFUL AGREEMENTS. Keir v. Leeman. However the principal direct authority must still 330] ho *sought in the earlier case of Keir v. Leeman {y). The Court of Queen's Bench there said : — " The principle of law is laid down by Wilmot C.J. in Collins v. Blan- tern (z) that a contract to withdraw a prosecution for perjury and consent to give no evidence against the accused is founded on an unlawful consideration and void. On the soundness of this decision 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 ; if guilty, the law was eluded by a corrupt compromise screening the criminal for a bribe. [The cases are then reviewed.] We shall probably be safe in laying it do\^Ti that the law will permit a compromise of all offences, though made the subject of criminal prosecution, for which offences the injured party might sue and recover damages in an action. It is often the only manner in which he can obtain redress. But if the offence is of a public nature no agreement can be valid that is founded on the consideration of stifling a prosecution for it " (a) . Accordingly the Court held that an indictment for offences includ- ing riot and obstruction of a public ofhcer in the execution of his duty cannot be legally the subject of a compromise. The judgment of the Exchequer Chamber (6) affirmed this, but showed some dis- satisfaction even with the limited right of compromise admitted in the Court below. The Court of Appeal has since held that the com- promise of any public misdemeanor, from whatever motive, is il- legal {c), though where there is a choice of a civil or criminal remedy a compromise of criminal as well as civil proceedings may be lawful {d)? There need not be an express agreement not to prosecute. An understanding to that effect, shown by the circumstances to be part 331 ] of the transaction, will be enough. *And, since the defence of illegality in cases of this kind is allowed on public grounds, it must iy) (1844) 6 Q. B. 308, 1.3 L. J. the supposed offence being an act not Q. B. 2.50. in Ex. Ch. 9 Q. B. 371, 15 criminally punishable? See per Fry L. J. Q. B. 360. J. 8 Ch. D. at p. 477. It is submitted (z) 1 Sm. L. C. 369, 382 (3.55, 365, that the agreement would be void for 10th ed.). want of consideration. (a) Ace. in Chibbv. Hutson (1865) (6) 9 Q. B. at p. 392. 18 C. B. X. S. 414, held that forbear- (c) Windhill Local Board v. Vint ance to prosecute a charge of obtain- (1890) 45 Ch. Div. 351, 59 L. J. Ch. ing money bv false pretences is an 608. illegal consideration. What if there (d) Fisher & Co. w Apollinaris Co. is no real ground for a prosecution, (1875) 10 Ch. 297, 44 L. J. Ch. 500. 2 Price V. Summers. 2 South. 578: Geier r. Shade, 109 Pa. 180: Fay r. Oatley. 6 Wis. 42. .59 (obiter). But see contra, Jones i\ Rice. 18 Pick. 440; Partridge r. Hood. 120 Mass. 403: Lindsay r. Smith, 78 X. C. 328; Gray v. Seigler, 2 Strobh. 117: Corlev r. Williams. 1 Bailey, 588: Vincent r. Groom, 1 Yerg. 430; Bowen r. Buck'. 28 Vt. 308. See also State r. Carver, 69 X. H. 216; Pearce v. Wilson, 111 Pa. 14; Brown v. McCreight, 187 Pa. 181. COMPOUNDING OFFENCES. 443 be allowed even if the Court thinks it discreditable to the party set- ting it up (e). It is not compounding felony for a person whose name has been forged to a bill to adopt the forged signature^ and advance money to the forger to enable him to take up the bill. It is doubtful whether a security given by the forger for such advance is valid : but he can- not himself actively dispute it (on the principle poilor est conditio defendentis, of which afterwards) nor can his trustee in bankruptcy, "who for this purpose is in no better position than himself, as there is in any case no offence against the bankrupt laws (/).^ An agreement by an accused person with his bail to indemnify him against liability on his recognizances is illegal, as depriving the public of the security of the bail (g) :^ and so is the like agreement of a third person (h).^ i8 Eliz. c. 5. The compounding of offences under penal statutes is expressly forbidden by 18 Eliz. c. 5, s. 5. Compromise of election petition. An election petition, though not a criminal proceeding, is a proceeding of a public character and in- (e) Jones v. Merionethshire Build- (1884) 14 Q. B. D. 32; Ex parte ing tiocietii L1892] 1 Ch. 173, 61 L. J. Caldecott (1876) 4 Ch. Div. 150, 46 Ch. 138, C. A. L. J. Bk. 14. (f) Otherwise where, after an act (g) Herman v. Jeuchner (1885) 15 of bankruptcy, the l)ankriipt's money Q. B. Div. 561, 54 L. J. Q. B. 340. has been paid for stifling a prosecu- {h) Consolidated Exploration and tion : there the trustee can recover it: Finance Co. v. Musgrave [1900] 1 Ch. Ex parte Wolverhampto)i Banking Co. 37, 69 L. J. Ch. 11. 3 That one may adopt and ratify his forged signature, see Bank r. Mott, 33 Conn. 95; Livings i: Wiler. 32 111. 387; Hefner r. Vandolah. 62 111. 483; Fay V. Slaughter, 194 111. 157, 167 ; Bank v. Keene, 53 Me. 103 ; Bank r. Crafts, 4 Allen, 477; Wellington v. Jackson, 121 Mass. 157; Fitzpatrick v. School Commrs., 7 Humph. 224. See also Campbell r. Campbell, 133 Cal. 33; Ofenstein r. Bryan, 20 App. D. C. 1 ; Smith r. Tramel. 68 la. 488; Myer v. Wegener, 114 la. 74; Carthage Bank v. Butterbaugh, 116 la. 657; Forsythe v. Bonta, 5 Bush, 547. Contra^ that public policy forbids sanctioning a ratification of a forged signature. Brook r. Hook, L. R. 6 Ex. 89 ; Barry v. Kirkland, 52 Pac. Rep. 771 (Ariz.) ; Henrv v. Heeb. 114 Ind. 275 (but see Neal V. First Bank, 26 Ind. App. 503 ) ; Workman v. Wright, 33 Ohio St. 405 ; McHugh r. County of Schuvlkill, 67 Pa. 391; Shisler v. X^andike. 92 Pa. 447; Henry, etc., Assn. r. Walton, 181 Pa. 201; Marks V. Schram, 109 Wis. 452. See also Crawford, Neg. Inst. Act, § 42, See also i?ifra, p. 856, n. IS. 4 See on the other hand, Laing r. McCall, 50 Vt. 657, wliich, it is submitted, was wrongly decided. Cp. Ward v. Allen, 2 Met. 53. 5 United States i\ Simmons, 47 Fed. Rep. 577. See also United States v. Rvder, 110 U. S. 729. But see contra, Simpson r. Roberts, 35 Ga. 180; Maloney v. Nelson. 144 N. Y. 182, 12 X. Y. App. Div. 545, 158 X. Y. 351; Reynolds V. Harrell, 2 Strob. 87. In Bing v. Willey, 146 Pa. 381, an agreement to pay a bondsman for be- coming surety on a bond given to obtain a liquor license was held valid. 6 Contra, Maloney v. Nelson, 12 N. Y. App. Div. 545, 158 N. Y. 351. 444 UNLAWFUL AGREEMENTS, terest which may liave penal consequences; and an agreement for pecuniary consideration not to proceed with an election petition is void at common law, as its effect would be to deprive the public of the benefit which would result from the investigation (('). In like manner an agreement for the collusive conduct of a divorce 332] suit is void (A;)/ and agreements not to expose *immoral con- (i) Coppocl- v. Boicer (1838) 4 M. (/>•) Hope v. Hope (1857) 8 D. M. 6 W. 3G1, 51 R. R. G27. G. 731. 26 L. J. Ch. 417. TViser r. Bertrand, 14 Ark. 267; Beard c. Beard, 6.3 Cal. 3.34; Loveren V. Loveren, 106 Cal. 509; Smutzer V. Stimson, 9 Col. App. 326; Goodwin r. Goodwin, 4 Day, 343; Stilson v. Stilson, 46 Conn. 15; Birch v. Anthony, 109 Ga. 349; Everhart v. Ptxckett, 73 Ind. 409; Stokes v. Anderson, 118 Ind. 533; Poison v. Stewart, 167 Mass. 211; Belden v. Miinger, 5 Minn. 211; Adams c. Adams, 25 Minn. 72; Sayles c. Saylcs, 21 N. H. 312; Cross r. Cross, 58 N. H. 373; Phillips v. Thorp\ 10 Oreg. 494; Stontenburgh r. Ly- brand, 13 Ohio St. 228; Kilborn c. Field, 78 Pa. 194; Irvin v. Irvin. 169 Pa. 529; James v. Steere, 16 R. I. 367; Palmer r. Palmer, 72 Pac. Rep. (Utah) 3; Baum V. Baum, 109 Wis. 47. Compare Greenhood, 484 et seq.; Gibbons v. Gibbons, 54 S. W. Rep. (Ky.) 710; Parsons V. Parsons, 62 S. W. Rep. (Ky.) 719. Where a divorce has been fraudulently obtained, a subsequent agree- ment between the parties that it shall not be disturbed is against public policy and void. Com?tock r. Adams, 23 Kan. 513. See also Evans r. Evans, 93 Ky. 510; Blank v. Nohl, 112 Mo. 159. So also is an agreement between the over- seers of the poor and a husljand whose ^^•ife is supported as a toAvn charge that Ihey will refrain from making opposition to a libel for divorce f^led by the husband against the wife. Weeks i\ Hill, 38 N. H. 199. But a promise made in consideration of a wife's dismissing' a suit for divorce begun bv her is lawful. JTcClure v. McClure. 100 Cal. 339; Barbour v. Barbour, 49 X. -J. Eq. 429; Phillips V. Meyers, 82 111. 67; Adams v. Adams, 91 N. Y. 381; cp. Fisher V. Koontz, 110 la. 498; Merrill v. Peaslee, 146 Mass. 460; Copeland v. Boaz, 9 Baxt. 223; Oppenheimer v. Collins, 115 Wis. 283'. See also 60 L. R. A. n. "An action may be maintained by a woman upon a promissory note given to her by her former husband, after she has obtained a divorce from him, in pur- suance of a written agreement made before the divorce, and conditioned upon the divorce being decreed, and which was called to the attention of the court granting the divorce, by the terms of which agreement, which were carried out by each party, she was to convey her land to him, and give a release of all her rights of dower and homestead, and he was to give her a sum of money and the note in suit, which were to be accepted instead of alimony." Chapin r. Chapin, 135 Mass. 393. But as to analogous agreements made before divorce obtained, and not called to the attention of the court, see Speck v. Dausman, 7 Mo. App. 165; Hamilton v. Hamilton, 89 111. 349. An agreement by a woman with her counsel in a suit for divorce to allow them for compensation for their services in the suit a portion of the alimony which might be awarded is void. Newman r. Freitas, 129 Cal. 283 ; Lyndc r. Lynde, 64 X. J. Eq. 736; Jordan v. Westerman, 62 ]Mich. 170. An agreement by a wife to support her husband, in consideration of a con- veyance by him to her, is void. Corcoran v. Corcoran, 119 Ind. 138. As is an agreement to pav a wife for performing duties as a Avife. Miller v. ^liller, 78 la. 177; Randall v. Randall, 37 Mich. 564; jNIichigan Trust Co. i\ Chapin, 106 Mich. 384. A contract to marry a woman when the promisor's present wife is divorced is void. Leupert v. Shields, 14 Col. App. 404. Or when his present wife is dead. Xoice r. Brown, 38 X. .J. L. 228. See also Paddock v. Robinson, 63 111. 99. Cp. Brown v. Odill, 104 Tenn. 250. AGREEMENTS TO ARBITRATE. 445 duct (l),^ and to conduct criminal proceedings against a third per- son in such a way that the name of a party who was in fact involved in the transaction should not be mentioned (in) have been held void as against public policy.^ Secret agreement as to conduct of winding-up. A shareholder in a com- pany which was in course of compulsory winding-up agreed with other shareholders, who were also creditors, in consideration of being in- demnified by them against all future calls on his shares, that he would -help them to get an expected call postponed and also support their •claim; ii was held that "such an agreement amounts to an interfer- ence with the course of puldic justice " : for the clear intention of the Winding-up Acts is that the proceedings should be taken with reason- able speed so that the company's affairs may be settled and the share- holders relieved; and therefore any secret agreement to delay pro- ceedings to the prejudice of the other shareholders and creditors is void (n). This comes near to the cases of secret agreements with particular creditors in banlcruptcy or composition : and those eases do in fact rest partly on this ground. But the direct fraud on the other creditors is the cliief element in them, and we have therefore spoken of them under an earlier head (p. *279). Agreements for reference to arbitration, how far valid at common law. Agreements to refer disputes to arbitration are, or rather were, to a certain extent regarded as encroachments on the proper authority of courts of justice by the substitution of a '"' domestic forum " of the parties' own making. At common law such an agreement, though so far valid that an action can be maintained for a breach of it (o),^^ (I) Brown v. Brine (1875) 1 Ex. (n) Elliott v. Richardson (1870) D. 5, 45 L. J. Ex. 129. L. R. 5 C. P. 744, 748-9. per Willes (m) Lonndw Grimwade (1888) 39 J. 39 L. J. C. P. 340. Ch. D. 605, 57 L. J. Ch. 725. (o) Livingston v. Ralli (1855) 5 E. & B. 132, 24 L. J. Q. B. 2C9. 8 Case V. Smith, 107 Mich. 416. 9 An agreement to pay a witness, Avho could not be required br subpoena to attend a trial, a certain sum to be present at the trial, which was "to be reduced one-half if the party promising lost the case is unlawful. Dawkins v. Gill, 10 Ala. 206. And see Brown r. First Bank, 137 Ind. 655; Thomas r. Caulkett. 57 Mich. 392. An agreement to procure witnesses to swear to a certain state of facts is against public policy. Patterson r. Donner. 48 Cal. 369; Goodrich v. Tenney, 144 111. 422: Quirk v. ]\Iuller, 14 Mont. 467. But see Casserleigh v. Wood, 14 Col. App. 265: Wellington r. Kelly. 84 N. Y. 543. A contract for the sale of bonds on condition that the purchaser shall bring a feigned suit to test their validity is void. Van Horn v. Kitteltas County 112 Fed. Rep. 1. •" 10 Donegal v. Verner, 6 Ir. Rep. C. L. 504; Hamilton v. Home Ins. Co 137 U. S. 370, 385; Hill r. ilore, 40 Me. 515, 523, ace. See also Nute v. Hamilton 446 UNLAWFUL AGREEMENTS. does not " oust the ordinary jurisdiction of the Court " — tliat is, 333] cannot be set up as a bar to an action brought in *the ordinary way to determine the very dispute which it was agreed to refer. ^^ Nor could such an agreement be specifically enforced (/?)/^ or used as a bar to a suit in equity (q)-^^ It is said however "that a special covenant not to sue may make a difference" (q). Practically enforceable under Arbitration Act. And the law has not been directly altered (q) ; but the Common Law Procedure Act, 1854, now superseded by the Arbitration Act, 1889 (52 & 53 Vict. c. 49), gave the Courts a discretion to stay proceedings in actions or suits on the subject-matter of an agreement to refer, which amounts in practice to enabling them to enforce the agreement: and this discre- tion has as a rule been exercised by Courts both of law (r) and of equity (s) in the absence of special circumstances, such a case where (p) Street V. Riglnj (1802) 6 Vcs. (r) Randegger v. Holmes (1866) 815, 818. L. R. 1 C. P. 679; Heligniumi v. Le (q) Cooke v. Cooke (1867) L. R. 4 Boutillier (1866) ih. 681. Eq. 77, 867, 30 L. J. Ch. 480. By (s) Willesford v. Watson (1873) Scots law a reference excludes the L. R. 14 Eq. 572, 8 Ch. 473, 42 L. J. jurisdiction only if it is to named Ch. 447 ; Plexs y. Baker (1873) L. R. arbitrators, see Hamh/n <6 Co. v. 16 Eq. 564, 43 L. J. Ch. 212. Talisker Distillery [1894] A. C. 202. Mut. Tns. Co., 6 Gray, 174, 181; Union Ins. Co. v. Central Trust Co., 157 X. Y. 633; Gray r. Wilson, 4 Watts, ,39, 41. Cp. Myers r. Jenkins, 63 Ohio St. 101, 102. But only nominal damages are recoverable. Leake on Contracts (4th ed.), 676; Munson v. Straits of Dover S. S. Co., 99 Fed. Rep. 787; 102 Fed. Rep. (C. C. A.) 926. 11 See cases cited infra, n. 15. On this principle it was held that an agreement by a foreign insurance com- pany, in pursuance of a State statute, exacting the promise as a condition of the right to do business in the State, that if sued in a State court it would not remove the suit into the Federal court was void. Insurance Co. v. Morse, 20 Wall. 445. See also Southern Pac. Co. v. Denton, 14G U. S. 202; :Mutual Reserve Assn. r. Cleveland Woolen jNIills, 82 Fed. Rep. 508; Hobbs v. Insurance Co., 56 Me. 417; Nute v. Insurance Co.. 6 Gray, 174; Quimby r. Insurance Co., 58 X. H. 494 : Railroad Co. v. Carv, 28 Ohio St. 208 ; Needy r. German Ins. Co., 197 Pa. 460. A provision in a contract made in Italy that suit upon it should be brought only in Italv was, however, held valid in Mittenthal v. Mascagni, 183 Mass. 19. See further, 58 Cent. L. J. 66. A stipulation in a policy on which one hundred imderwriters were severally liable that the assured should not sue more tlian one it one time, and that the decision in such an action should be decisive as to the liability of all, A^as upheld, and a plea held good which set forth that the action was brought in violation of the agreement. New Jersey Works v. Ackerman, 39 N. Y. Supp. 585. 12 Tobcv r. County of Bristol, 3 Storv. 800 ; Grievance Committee r. Brown, 61 Fed. Rep. 541. .543; King r. Howard, 27 Mo. 21; St. Louis r. St. Loui.^ Gaslight Co.. 70 Mo. 69, 104; Smith r. Railroad Co., 36 N. H. 458, 487; Greason r. Keteltas, 17 N. Y. 491, 496; Conner V. Drake, 1 Ohio St. 166; Grosvenor v. Flint. 20 R. I. 21. 13 Miles V. Schmidt, 168 Mass. 339. AGREEMENTS TO ARBITRATE. 447 a charge of fraud is made, and the party charged with it desires the inquiry to be public (t), or where the defendant appeals to an arbi- tration clause not in good faith, but merely for the sake of vexation or delay (w), or is otherwise not really ready and willing to arbi- trate (x). A question whether on the true construction of an arbi- tration clause the subject-matter of a particular dispute falls within it is itself to be dealt with by the arbitrator, if it appears from the nature of the case and the terms of the provisions for arbitration that such was *the intention of the parties. Otherwise it must [334 be decided by the Court (y).'^'^ And when the question is whether an agreement containing an arbitration clause is or is not determined, that question is not one for arbitration, since the arbitration clause itself must stand or fall with the whole agreement (z). Special statutory arbitration clauses. Certain statutory provisions for the reference to arbitration of internal disputes in friendly and build- ing societies have been decided (after some conflict) to be compulsory and to exclude the ordinary jurisdiction of the Courts {a). The Eail- v/ay Companies Arbitration Act, 1859, is also compulsory (&). (t) Bussell v. RusseU (1880) 14 Ch. D. at p. 476 (Jessel M.R.). (m) L. R. 14 Eq. 578; Witt v. Cor- coran (1871) L. R. 8 Ch. 476. »., L. R. 16 Eq. 571. The enactment applies only where there is at the time of ac- tion brought an existing agreement for reference which can be carried, into effect: Randell, Saunders d Co. V. Thompson (1876) 1 Q. B. Div. 748, 45 L. J. Q. B. 713. Not where the arbitration clause does not cover the whole subject-matter: Tiirnock v. Sartoris (1889) 43 Ch. Div. 150, 62 L. T. 200. Nor when the matter in difference is a question of pure law: Clcgg V. Clegg (1890) 44 Ch. Div. 200. 59 L. J. Ch. 520. {x) See the principle and limits of the exception explained in the C. A. : Parry v. Liverpool Malt Co. [1900] 1 Q. B. 339. 69 L. J. Q. B. 161. iy) Piercy y. Young (1879) 14 Ch. Div. 200. 2(58, per Jessel M.R. qual- ifying the apparent effect of WilJrs- ford V. Watson (1873) L. R. 8 Ch. 473. (z) Per James L.J. in Lla nelly Ry. & Dock Co. V. L. (Sc y. ir. Ry. Co. (1873) L. R. 8 Ch. at p. 948. (a) Wright v. Monarch Investment Building Society (1877) 5 Ch. D. 726, 46 L. J. Ch. 649; Hack v. London Provident Building Society (1883) 'l^ Ch. Div. 103, 52 L. J. Ch. 542; Mu- nicipal Building Society v. Kent (1884) 9 App. Ca. 260, 53 L. J. Q. B. 290: Bache v. Billingham [1894] 1 Q. B. 107, 63 L. J. M. C. 1, C. A. (an improper award, otherwise witliin the Act. cannot be treated as a mere nullity). Not so where the real question is wlietlier a party claiming against the society is a member of the societv at all: Prentice V. Lo)idon (1875) L. R. 10 C. P. 679, 44 L. J. C. P. 353. See the Building Societies Act. 1884, 47 & 48 Vict. c. 41. and Western Suhurhan, d-c. Co. V. Martin (1886) 17 Q. B. Div. 609, 55 L. J. Q. B. 382. (h) Watford d Rickmansirorth Ry. Co. V. L. d N. W. Ry. Co. (1869) L. R. 8 Eq. 231. 38 L. J. Ch. 449. 14 Knickerbocker Ice Co. v. Smith, 147 Pa. 248. 448 UNLAWFUL AGREEMENTS. Agreement of parties may make right of action conditional on arbitration. Moreover parties may if they clioose make arlntration a condition precedent to any riglit arising at all, and in that case the foregoing rules are inapplicable : as where the contract is to pay such an amount as shall be determined by arbitration or found due by the certificate of a particular person (c).^^ Whether this is in fact the contract, (c) Scott V. Avenj (1855-6) 5 H. ety (1875-G) 1 Q. B. D. 5G3 : Scott v. L. C. 811, 25 L. J. Ex. 303, which Corporation of Liverpool (1858) 3 De does not overrule the former general G. & J. 334, 28 L. J. Ch. 236. Cp. law on the subject, see the judgments CoUius v. Locke (1879) (J. C.) 4 of Brett J. and Kelly C.B. in Ex. Ch. App. Ca. 674, 689, 48 L. J. P. C. 68. in Edwards v. Aberayron, dc. Soci- 15 In Viney v. Bignold, 20 Q. B. D. 172, Wills, J., said: "The principle on which cases such as the present ought to be decided is very clear, and it is this. The court must look and see what the covenant is. If there is a cove- nant to pay the amount of the loss, accompanied by a collateral provision that the amount shall be ascertained by arbitration, such arbitration is not a con- dition precedent to the maintenance of an action on the covenant; but if the parties have covenanted that the liability is only to arise after the amount has been adjusted bv arbitration, then such adjustment is a condition precedent to the right to recover." Elliott v. Royal Ex. Ass., L. R. 2 Ex. 237; Dawson V. Fitzgerald, 1 Ex. D. 257: Collins r.' Locke, 4 A. C. 674; Babbage v. Coul- burn, 9"Q. B. D. 235; Caledonian Ins. Co. r. Gilmour. [1893] A. C. 85; Trainor V. Phoenix Fire Ass. Co., 65 L. T. 825 ; Manchester Ship Canal Co. r. Pearson, [1900] 2 Q. B. 606; Spurrier r. La Cloche. [1902] A. C. 446 ace. Compare Edwards V. Aberayron Ins. Soc, 1 Q. B. D. 563. A test apparently intended to be similar to that adopted by the English courts was adopted in the following cases: Hamilton r. Home Ins. Co., 137 v. S. 370 : Crosslev V. Conn. Ins. Co.. 27 Fed. Ren. 30 : Kahnweiler v. Phoenix Ins. Co., 57 Fed. Rep. 562 : 67 Fed. Rep. 486 : Connecticut Ins. Co. l\ Hamilton, 59 Fed. Rep. 258; Mutual Ins. Co. v. Alvord, 61 Fed. Rep. 755; Old Saucelito Co. V. Commercial Ass. Co., 66 Cal. 253 : Adams i'. South British Ins. Co., 70 Cal. 198; Carroll V. Girard Ins. Co., 72 Cal. 297: Denver, &c. R. R. Co. v. Rilev. 7 Col. 494: Denver. &c. Co. v. Stout, 8 Col. 61: Union Pac. Co. V. Anderson, 11 Col. 293; Hanover Fire Ins. Co. v. Lewis, 28 Fla. 209; Liverpool Ins. Co. r. Creighton, 51 Ga. 95: Southern Ins. Co. r. Turnley, 100 Ga. 296; Birmingham Ins. Co. t\ Pulver. 126 111. 329, 338; Lesure Lumber Co. r. Mutual Fire Ins. Co., 101 Iowa, 514: Zalesky r. Home Ins. Co., 102 Iowa, 613: Read V. State Ins. Co., 103 Iowa, 307 ; Dee r. Key City Ins. Co., 104 Iowa, 167 ; Fisher v. Merchants' Ins. Co., 95 Me. 486: Chippewa Lumber Co. r. Phenix Ins. Co., 80 Mich. 116; Guthat v. Gow, 95 Mich. 527; Boots r. Steinberg, 100 Mich. 134; Weggner r. Greenstine, 114 Mich. 310; Gasser v. Sun Fire Office, 42 Minn. 315; Mosness v. German-xA.merican Ins. Co., 50 Minn. 341; Levine v. Lancashire Ins. Co.. 66 Minn. 1.38: Wolff r. Liverpool Ins. Co., 50 X. J. L. 453; Delaware & H. C. Co. r. Penn. Coal Co., 50 X. Y. 250: Seward v. Rochester, 109 X. Y. 109: X^ational Co. v. Hudson River Co., 170 X'. Y. 439; Keefe i\ Xational Soc, 4 X''. Y. App. Div. 392 ; Spink v. Co-operative Ins. Co., 25 X. Y. App. Div. 484; Van Xote r. Cook, 55 X. Y. App. Div. 55; Pioneer ]Mfg. Co. V. Phoenix Ass. Co.. 106 X. C. 28 ( see, however. Pioneer Mfg. v. Phoenix Ass. Co., 110 X. C. 176; Uhrig r. Williamsburg Ins. Co., 116 X. C. 491) ; Monongahela Xav. Co. r. Fenlon, 4 W. & S. 205; Reynolds r. Caldwell, 51 Pa. 298; Gowen r. Pierson, 166 Pa. 258; Chandley v. Cambridge Springs. 200 Pa. 230, 232: Scottish Ins. Co. r. Clancy, 71 Tex.'S: American'lns. Co. v. Bass Bros., 90 Tex. 380. 382; Van Hornp r. Watrous, 10 Wash. .525: Zindorf Co. r. Western Co.. 27 Wash. 31 iconf. Winsor v. German Soc. 72 Pac. Rep. 66) ; Chapman v. Rockford Ins. Co., 89 Wis. 572. See also Randall v. Phoemx MAIXTEN'ANCE AXD CHAMPERTY. 449 or it is an absolute contract to pa}^ in the first instance, with a col- lateral provision for reference in case of difference *as to the [335 amount, is a question of construction on which there have been more or less conflicting opinions (d). Maintenance and champerty. We now come to a class of transactions which are specially discouraged, as tending to pervert the due course of justice in civil suits. These are the dealings which are held void as amounting to or being in the nature of champerty or maintenance. The principle of the law on this head has been defined to be " that no encouragement should be given to litigation by the introduction of parties to enforce those rights which others are not disposed to enforce" (e). Main- tenance is properly a general term of which champerty is a species. Their most usual meanings (together with certain additions and distinctions now obsolete) are thus given by Coke: — " First, to maintain to have part of the land or anything out of {d) Elliott V. Royal Exchange As- {e) Bv Lord Abinger in Prosser V. surance Co. (1867) "L. R. 2 Ex. 237, Edmonds (1835) 1 Y. & C. Ex. 481, 36 L. J. Ex. 129; Dawson v. Fitzger- 497, 41 R. R. 322, 334. aid (1876) 1 Ex. Div. 2.57. revg. s. c. L. R. 9 Ex. 7, 45 L. J. Ex. 893. Ins. Co., 10 Mont. 302; Kahn r. Traders' Ins. Co., 4 Wyo. 419. In many of these cases, however, the court considered not only the question whether the provision for arbitration was expressed as a condition precedent or as a col- lateral promise, but also the question whether the agreement for arbitration related to the liability under the contract or to the amount of damages. In a number of jurisdictions an agreement to arbitrate, though expressed in the form of a condition precedent, is void if it concerns more than the amount of damages recoverable, as distinguished from the existence of a right of action. Dickson Mfcr. Co. v. American Locomotive Co.. 119 Fed. Rep. 488; Meaher V. Cox, 37 Ala. 201; Western Ass. Co. v. Hall, 112 Ala. 318; Bauer v. Samson Lodge, 102 Ind. 262; Supreme Council v. Garrigus, 104 Ind. 133; Louisville, &c. Rv. Co. V. Donnegan, 111 Ind. 179; Supreme Council r. Forsinger. 125 Ind. 52; McCoy (;. Able, 131 Ind. 417; Ison v. Wright. 55 S. W. Rep. (Ky.) 202; Robinson v. Georges Ins. Co., 17 Me. 131; Stephenson r. Piscataqua Ins. Co., 56 Me. 419 (but see Fisher v. Merchants' Ins. Co., 95 Me. 486) ; White v. Middlesex R. Co., 135 Mass. 216; Miles v. Schmidt, 168 Mass. 339 (cp. Lam- son Co. V. Prudential Ins. Co.. 171 Mass. 433) ; Phoenix Ins. Co. v. Zlotkv, 92 N. W. Rep. (Neb.) 736; Hartford Ins. Co. v. Hon. 92 N. W. Rep. (Xeb.) '742; Leacli V. Republic Ins. Co., 58 N. H. 245; Baltimore, &c. R. R. Co. r. Stankard, 56 Ohio St. 224; Myers v. Jenkins, 63 Ohio St. 101; Ball r. Doud, 26 Oreg. 14; Gray r. Wilson, 4 Watts, 39; Commercial Vnion Ass. Co. r. Hocking, 115 Pa. 407; Yost r. Dwelling-House Ins. Co., 179 Pa. 381; Penn Plate Glass Co. r. Spring Garden Ins. Co., 189 Pa. 255; Xeedv r. German-American Ins. Co., 197 Pa. 460; Peyin v. Societe St. Jean Baptiste, 21 R. I. 81: Daniher V. Grand Lodge, 10 Utah. 110; Kinney r. Baltimore, &c. Association, 35 W. Va. 385 {covf. Baer's Sons Co. r. Cutting Fruit Packing Co., 43 W. Va. 359). See also Edwards r. Aberayron Ins. Co., 1 Q. B. D. 563. and the Michigan, Minne- sota, and New York decisions cited in the first part of this note; also Green- hood on Public Policy, 467 et seq. and cases cited; 11 Harv, L. Rev. 234. 29 450 UNLAWFUL AGEEEMENTS. the land or part of the debt, or an}' other thing in plea or suit ; and this is called camhipartia [cJiampart, canipi pariiiio], champertie." The second is " when one maintaineth the one side without having any part of the thing in plea or suit" (/). Champerty may accord- ingly be described as " maintenance aggravated Ijy an agreement to have a part of the thing in dispute "() (1857) 7 E. & B. 84, 20 L. J. seem to have even kept the original Q. B. 121. and real agreement off the face of the (q) (18.18) E. B. & E. 806, 28 L. J. transaction in its ultimate shape. See Q. B. 32. 20 ib. 128. 18 Ves. p. 123, 11 K. R. 162. It is to (h) (1858) 2 De G. & J. at p. 445. be regretted that the reporter did not 456 UNLAWFUL AGREEMENTS. the purchaser, or merely to speculate in litigation on the account either of the vendor and purchaser jointly or of the purchaser alone. It is not unlawful to purchase an interest in property though adverse claims exist which make litigation necessary for realizing that in- terest : But is unlawful if the real intention is to acquire a mere right to sue. But it is unlawful to purchase an interest merely for the purpose of litigation. In other words, the sale of an interest to which a right to 'sue is incident is good (i) f^ but the sale of a mere right to sue is bad (Z-). A man who has conveyed property by a deed voidable in equity retains an interest not only transmissible by descent or devise, but disposable inter vivos, without such disposition being champerty. But " the right to complain of a fraud is not a marketable commodity,'" and an agreement whose real object is the acquisition of such a right cannot be enforced (0-^^ ^^ like manner, a creditor of a company may well assign his debt, but he cannot sell as incident to it the right to proceed wdth a winding-up petition (m). The payment of the price being made contingent on the recovery of the property is probably under any circumstances a sufficient, but is by no means a necessary, condition of the Court being satisfied that the real object is to traffic in litigation. If the purchase is made while a suit is actually pending, the circumstance of the purchaser indem- 342] nifying the vendor against costs may be material, *but is not (i) Dickinson v. BurreJl (1866) il) Prosser v. Edmonds, last note; L. R. 1 Eq. 337. 342, 35 L. J. Ch. 371. De Hoghton v. Moneif (1866) L. R. 2 (k) lb.; Prosser \. Edmonds (1835) Ch. 164, 169. Cp. Eillx. Boyle (18G7) 1 Y. & C. Ex. 481, 41 R. R. 322. Dist. L. R. 4 Eq. 260, and qu. whether the Guy v. Churchill (1888) 40 Ch. D. right to cut down an absolute convey- 481, 56 L. J. Ch. 670; bankrupt's ance to a mortgage be saleable: Seear right of action assigned by the trus- v. Lmcson (1880) 15 Ch. Div. 426, 49 tee to one creditor (in fact acting L. J. Bk. 69. for himself and others), who was to (?n) Paris Skating Rink Co. (1877) keep three-fourths of the proceeds; 5 Ch. Div. 959. held justifiable as a beneficial ar- rangement for the creditors. 2iTraer v. Clews, 115 U. S. 528; Edmunds r. Illinois Central R. Co., 80 Fed. Rep. 78; National Bank v. Hancock, 100 Va. 101. 22Hinchman r. Kellev, 49 Fed. Rep. 492; Marshall r. Means, 12 Ga. 61; Norton c. Tuttlo, 60 111. 130: Illinois Land Co. r. Speyer, 138 111. 137; Storrs V. St. Luke's Hospital. 180 111. 368. 374: Brush v. Sweet, 38 Mich. 574; Dickinson v. Seaver, 44 Mich. 624; Smith 1K Thompson, 94 Mich. 381; Mor- rison r. Deadrick, 10 Humph. 342; Crocker v. Bellange, 6 Wis. 645; M. & M. Railroad Co. v. M. & W. Railroad Co., 20 Wis. 174; J. V. Farwell Co. r. Wolf, 96 Wis. 10. A right of action for damages from deceit is not assign- able. Davton r. Fargo, 45 Mich. 153; Zabriskie r. Smith, 13 N. Y. 322. See further 44 L. R. A. 177. PURCHASE OF THINGS IX LITIGATION. 457 alone enough to show that the bargain is in truth for maintenance (n). But the only view which on the whole seems tenable is that it is a question of the real intention to be collected from the facts of each case, for arriving at which few or no positive rules can be laid down. There is no champerty in an acreement to enable the bona fide purchaser of an estate to recover for rent due or injuries done to it previously to the purchase (o). Purchase of shares in company with intention to sue company or directors at one's own risk not maintenance. It has been decided in several mod- ern cases that the purchase of shares in a company for the purpose of instituting a suit at one's own risk Lo restrain the governing body of the company from acts unwarranted by its constitution cannot be impeached as savouring of maintenance (p). It was recognized as long ago as 21 Ed. III., that a purchase of property pending a suit affecting the title to it is not of itself champerty : " If pending a real action a stranger purchases the land of tenant in fee for good con- sideration and not to maintain the plea, this is no champerty'" (q). Stat. 32 H. VIII. c. 9. None shall buy, sell, or bargain for any right in lands unless the seller hath been in possession or taken the profits for one year. The statute 32 H. A'lII. c. 9, "Against maintenance and embracery, buying of titles, &c." after reciting the mischiefs of " maintenance embracery champerty subornation of witnesses sinister labour buying of titles and pretensed rights of persons not being in possession," and confirming all existing statutes against maintenance, enacts that : " Xo person or persons, of whfit estate degree or condition so ever he or *they be, shall from hencefortli bargain buy or sell, or by any ways or [343 means obtain get or have, any pretensed rights or titles, or take promise grant or covenant to have, any right or title of any person or persons in or to any manors lands tenements or hereditaments, but if such person or persons which shall so bargain sell give grant covenant or promise the same their ante- cessors or they by whom he or they claim the same have been in possession of the same or of the reversion or remainder thereof or taken the rents or profits thereof by the space of one wliole year next before the said bargain covenant grant or promise made."' Penalty and saving. The penalty is forfeiture of the whole value of the lands (s. 2), saving the right of persons in lawful possession to in) Harrington v. Long (1833-4) locus standi to set aside a deed for 2 M. & K. 500, 39 R. R. 304, as cor- fraud. rected by Knight V. Boivyer, note (r) (o) Per Cur. (Ex. Ch.) WiUiams p. "337, and see Hunter v. Daniel v. Protheroe (1829) 5 Bing. 309, 314, (1845) 4 Ha. at p. 430. But the true 30 R. R. 608. 613. ground of the case seems the same as i p) See Bloxam v. Metrop. Ry. Co. in Prosser v. Edmonds and De Hogh- (1868) L. R. 3 Ch. at p. 353. ton V. Money, namely, that the real (q) 2 Ro. Ab. 113 B. : Y. B. 21 E. object was to give the purchaser a III., 10, pi. 33 [cited as 52 in Rolle] ; 458 UNLAWFUL AGREEMENTS. bu}' in adverse claims (s. •i).^'^ There is no express saving of grants or leases by persons in actual possession who have been so for less than a year: but either the condition as to time applies only to re- ceipt of rents or profits without actual possession, or at all events the intention not to touch the acts of owners in possession is obvious (r). Dealings held within the statute — Agreement to recover and divide property. This, like the other statutes against maintenance and champerty, is said to be in affirmance of the common law (s). It "is formed on the view that possession should remain undisturbed. Dealings with property by a person out of possession tend to disturb the actual pos- session to the injury of the public at large" (t). It is immaterial whether the vendor out of possession has in truth a good title or not (s). An agreement between two persons out of possession of lands, and both claiming title in them, to recover and share the lands, is contrary to the policy of this statute, if not champerty afc common law; therefore where co-plaintiffs had in fact conflicting 344] interests, and it *was sought to avoid the resulting difficulty as to the frame of the suit by stating an agreement to divide the prop- erty in suit between them, this device (which now would in any case be disallowed on more general grounds) (u) was unavailing; for such an agreement, had it really existed, would have been unlawful, and •yould have subjected the parties to the penalties of the statute (x). Sale of term by administrator out of possession. Where after the death of a lessee a stranger had entered, and remained many years in posses- but in 50 Ass. 323, pi. 3, the general force a forfeiture under the statute opinion of the Serjeants is contra. the plaintiff must show that the pur- Cp. 4 Kent, Conim. 449. chaser knew the title to be " pre- (r) Bv Mountague C.J. Partridge tensed": Kennedy x. Lyell (1885) 15 V. strange, Plowd. 88, cited in Doe d. Q. B. D. 491, 53 L. T. 466. ^Villiams v. Evans (1845) 1 C. B. (s) See last note. 717, ih. 89, 14 L. J. C. P. 237. See (f) Per Lord Redesdale. Cholmon- further Jenkins v. Jones (1882) 9 deley v. Clinton (1821) 4 Bligh, at p. Q. B. Div. 128. 51 L. J. Q. B. 438, as 75. to the meaning of " pretensed rights " (u) See Cooke v. Cooke ( 1864) 4 D. and the limited application of the J. & S. 704; Pryse v. Pryse (1872) statute at the present time. A right L. R. 15 Eq. 86. 42 L. J. Ch. 253. or title which is grantable under 8 (x) Cholmondelcy \. Clinton (1821) & 9 Vict. c. 106, is not now " pre- 4 Bligh. 1, 43, 82, per Lord Eldon and tensed " merely because the grantor Lord Redesdale. has never been in possession. To en- 23 In most of the States of this country a conveyance by one who has a lawful claim to land held adversely by another is valid ; for the decisions in those States where such convevances are prohibited, see the notes to Ryall v. Bowles. 2 L. C. Eq. (4th Arn. ed.) 1631 et seq.; Chevalier v. Carter, 124 Ala. 520. SALE OF EXPECTAXCY. 459 sion, a sale of the term by the administrator of the lessee was held void as contrary to the statute, although in terms i': only forbids sales of pretended rights, &c,, under penalties, without expressly making them void {y). Sale of non-litigious ejrpectancy. But the sale of a contingent right or a mere expectancy, not being in the nature of a claim adverse to any existing possession, is not forbidden. The sale of a man's pos- sible interest as the devisee of a living owner, on the terms that he shall return the purchase-money if he does not become the devisee, is not bad either at common law as creating an unlawful interest in the present owner's death, or as a bargain for a pretended title under the ;statute (z)."^ (y) Doe cl. Williams v. Evans on, quite in the spirit of our own (1845) 1 C. B. 717, 14 L. J. C. P. 237. statute, to forbid in general terms all Cp. above as to the construction of dealings "in alienis rebus contra prohibitory statutes in general, p. domini voluntatem " : C. 2. 3, de 29G. pactis, 30. Bv the Code Napoleon, iz) Cook V. Field (1850) 15 Q. B. art. IGOO (followed by the Italian 460, 19 L. J. Q. B. 441. [Cp. Lowry Civil Code, art. 14C0). "On ne pent V. Spear, 7 Bush, 451.] By the civil vendre la succession d'une personne law, however, such contracts are vivante, meme de son consentement : " regarded as contra bonos mores. cp. 791, 1130. In Roman law the rule " Huiusmodi pactiones odiasae viden- that the inheritance of a living per- tur et plenae tristissimi et periculosi son could not be sold is put only on eventus," we read in a rescript of the technical ground "quia in : arum Justinian on an agreement between natura non sit quod venierit " : D. 18. expectant co-heirs as to the disposal 4. de hered. vel actione vendita, 1, .of the inheritance. The rescript goes and see eod. tit. 7-11. 24 The conveyance l)y one of his possible interest as devisee of a living •owner, or lieir of his ancestor, is the conveyance of a naked possibility, and ineffectual to pass anv interest at law. Wheeler's Exrs. v. Wheeler, 2 Met. (Ky.) 474; Needles' Exr. r. Needles, 7 Ohio St. 432; Hart r. Gregg, 32 Ohio St. 502; Re Lennig's Est,, 182 Pa. 485. But if the conveyance was with ■warranty it will operate by way of estoppel. Rosenthal v. Mayhugh, 33 Ohio St. 155, 158. And equity will give effect to the conveyance as an agree- ment to convey, which will be specifically enforced as soon as the grantor has acquired power to perform it, if the consideration given was fair and no undue advantage was taken. Parsons V. Ely, 45 HI. 232 ; Galbraith v. Mc- Lain, 84 111. 379; Kershaw r. Kershaw, 102 111. 307; Longsliore v. Longshore, 200 111. 470; Gary r. Newton. 201 111. 170; Clendenning v. Wyatt, 54 Kan. 523; Bacon r. Bonham, 33 N. J. Eq. 614; Stover v. Eyclesheimer, 4 Abb. App. Dec. 309; Martin V. Marlow, 65 N. C. 695; McDonald v. McDonald, 5 Jones Eq. 211; Bayler v. Commonwealth, 40 Pa. 37; Power's Appeal, 63 Pa. 443; Re Fritz's Est., 160 Pa. 156; Re Kuhn's Est., 163 Pa. 438; Fitzgerald V. Vestal, 4 Sneed, 258; Steele v. Frierson, 85 Tenn. 430; Hale r. Hollon, 90 Tex. 427; Fuller v. Parmenter, 72 Vt. 302. In Abel r. Boynton, 7 Mass. 112, it was held that " a contract made by an heir to convey, on the death of his ■ancestor, living the heir, a certain undivided part of what shall come to the "heir by descent, distribution, or devise, is a fraud upon the ancestor, pro- ductive of public mischief, and void as well at law as in equitv." In Fitch T. Fitch, 8 Pick. 480; Trull r. Eastman, 3 Met. 121; Curtis r. Curtis, 40 Me. ^4, and Jenkins V. Stetson. 9 Allen. 128, it was held that such a contract is -valid if made with the consent of the ancestor. See also McClure v. Raben, 460 UNLAWFUL AGREEMENTS. Proceedings in lunacy not within the rules against champerty. Proceed- ings in lunac}- seem not to be within the general rules as to champerty, 345] as they are not analogous to ordinary *litigation, and then- object is the protection of the person and property of the lunatic, which is in itself to be encouraged ; and " this object would in many cases be impeded rather than promoted by holding that all agree- ments relative to the costs of the proceedings or the ultimate division of the property were void" (a). Maintenance in general. As to maintenance in general, maintenance in the strict and proper sense is understood to mean only the main- tenance of an existing suit, not procuring the commencement of a new one. But the distinction is in practice immaterial even in the criminal law (&). It is of more importance that a transaction cannot be void for champerty or maintenance unless it be " something against good policy and justice, something tending to promote unnecessary litigation, something that in a legal sense is immoral, and to the constitution of which a bad motive in the same sense is necessary " (c). Therefore, for example, a transaction cannot be bad for maintenance whose object is to enable a principal or other person really interested to assert his rights in his own name (c). Xor is it maintenance for several persons to agree to prosecute or defend a suit in the result of which they have, or reasonably ])elieve they have, a common inter- 346] est (d).''^'^ But a bargain to have a share of ^property to be (a) Persse y. Persse (1840) 7 CI. & champerty is not in force in India, F. 279, 316, 51 E. R. 22, 29, per Lord and documents which set up agree- Cottenham. ments to share the subject of litiga- (6) See Woody. Doivnes (1811) 18 tion, if recovered, in consideration of Ves. at p. 125, 11 R. R. 164. supplying funds to carrj' it on, are (c) Fischer v. Karnnla Xaicker not in themselves opposed to public (1860) 8 Moo. Ind. App. 170. 187. policy ; but such documents should be This is not necessarily applicable in jealously scanned, and, when found to England, being said with reference to be extortionate and unconscionable, the law of British India, where the they are inequitable as against the English laws against maintenance party against whom relief is sought, and champerty are not specifically in and effect should not be given to force: see Rain Coomar Coondoo v. them": Kunicar Ram Lai v. ^il Chunder Canto Mookerjee (1876) 2 Kanth (1893) L. R. 20 Ind. App. 112, App. Ca. 186. 207-9, and the later 115. judgment cited below. But it fairly (d) Findon v. Parker (1843) 11 M. represents the principles on which & W. 675, 12 L. J. Ex. 444; Plating English judges have acted in the Co. v. Farquharson (1881) 17 Ch. modern cases. "The English law of Div. 49. Cp. 2 Ro. Ab. 115 G. 125 Ind. 439, 133 Ind. 507: Alves r. Soblesinger, 81 Kv. 290: McCalFs Adm. V. Hampton, 98 Ky. 166; Fuller v. Parmenter, 72 Vt. 362. See 13 Yale L. J. 228. 25 Thompson r. Marshall. 36 Ala. 504: Vaughn r. Marable. 64 Ala. 60: Allen r. Frazee. ?5 Ind. 283; Bartholomew Co. Commrs. c. Jameson. 86 Ind. 154: Jewel V. Xeidv. 61 la. 299: Call v. Calef. 13 Met. 362: Tillman r. Searcy, 7 Humnh. 3^37 : '^ Dorwin r. Smith. 35 Vt. 69; Lewis v. Brown. 36 W. Va. 1: Davies r. Stowell, 78 Wis. 334 : Gilbert-Arnold Co. r. Superior. 93 Wis. 194. CUSTODY OF CHILDREN". 461 recovered in a suit in consideration of maintaining the suit by the supply of money and evidence is not saved from being champerty by the party's having a mere collateral interest in the result of the suit (e). Where a person sues for a statutory penalty as a common informer, it is maintenance to indemnify him against costs (f). Certain relations will justify maintenance, but not champerty. Lineal kin- ship in the first degree or apparent heirship, and to a certain extent, it seems, any degree of kindred or affinity, or the relation of master and servant, may justify acts which as between strangers would ])e maintenance:^ but blood relationship will not justify champerty (g). (c) Public policy as to legal duties of individuals. As to matters touch- ing legal (and possibly moral) duties of individuals in the perform- ance of which the public have an interest. Agreements as to custody or education of children. Certain kinds of agreements are or have been considered unlawful and void as pro- viding for or tending to the omission of duties which are indeed duties towards individuals, but such that their performance is of public importance. To this head must be referred the rule of law that a father cannot by contract deprive himself of the right to the custody of his children {h)-~ or of his discretion as to their education. He " cannot bind himself conclusively by contract to exercise in all events in a particular wa}^ rights which the law gives him for the benefit of his children and not for his own." And an agreement to that effect — such as an agreement made before marriage between a husband and wife of different religions that boys shall be edu- (e) Eutley v. Eutley (1873) L. E. (g) Hutley v. Hutley, supra. See 8 Q. B. 112, 42 L. J. Q. B. 52. But 2 Ro. Ab. 115, IIG. the interest of a bankrupt's creditors (/i) Re Andrcics (1873) L. R. 8 is more than "collateral": Ouy v. Q. B. 153, sub nom. Re Edwards, 42 Churchill (1888) 40 Ch. D. 481, 5G L. J. Q. B. 99, and authorities there L. J. Ch. 670. collected. if) Bradlauoh v. Neii^degate (1883) 11 Q. B. D. 1,52 L. J. Q. B. 454. 26 Proctor V. Cole, 104 Ind. 373; Perrine v. Dunn, 3 Johns. Ch. 508, 519; Thallhimer r. Brinkerhoff, 3 Cow. 623, 647; Gilleland v. Failings. 5 Den. 308; Barnes v. Strong, 1 Jones Eq. 100: Wrij^ht r. Cain. 93 N. C. 296: Re Evans, 22 Utah. 366; Barker r. Barker, 14 Wis. 131. And one may lawfully give money to a poor man to enable liim to carry on his suit. Harris v. Brisco, 17 Q. B. D. 504; Perrine v. Dunn, supra; State r. Chitty, 1 Bailey, 379, 401; Sherley v. Riggs, 11 Humph. 53. 57. 27 1,1 re Besant, 11 Ch. D. 508. 519; Queen r. Bernardo. 23 Q. B. D. 305; Johnson r. Terry, 34 Conn. 259, 263: Brooke r. Logan. 112 Tnd. 183; Chapsky r. Wood. 26 Kan. 650; Gates r. Renfrop. 7 La. Ann. 569; Matter of Scarritt, 76 Mo. 565; Albert v. Perry, 1 McCarter, 540, 4C2 UNLAWFUL AGREEMENTS. 347] cated *in the religion of the father, and girls in the religion of the mother — cannot be enforced as a contract (i).^^ After the father's death the Court has a certain discretion. The children are indeed to be brought np in his religion, unless it is dis- tinctly shown by special circumstances that it would be contrary to the infant's benefit (Jc). When such circumstances are in question, however, the Court may inquire " whether the father has so acted that he ought to be held to have waived or abandoned his right to have his children educated in his own religion " ; and in determining^ this the existence of such an agreement as above mentioned is mate- rial (l). The father's conduct in giving up the maintenance, con- trol, or education of his children to others may not only leave the Court free to make after his death such provision as seems in itself best ; it may preclude him even from asserting his rights in his- lifetime (m).^^ Such agreements in separation deeds. Clauses in separation deeds or agreements for separation purporting to bind the father to give up the general custody of his children or some of them, have for the like reasons been held void; and specific performance of an agreement to execute a separation deed containing such clauses has been re- fused (n). In one case, however, such a contract can be enforced; namely, where there has been such misconduct on the father's part that the Court would have interfered to take the custody of the children from him in the exercise of the appropriate jurisdiction and on grounds independent of contract. The general rule is only that the custody of children cannot be made a mere matter of bargain,. 348] not *that the husband can in no circumstances bind himself not to set up his paternal rights (o). (i) Andrcirs v. Salt (1873) L. R. 2 De G. & J. 240, 259. 27 L. J. Ch. 8 Ch. G22, C.3G. 222. As to the validity of partial {k) Hatcksn-orfh v. Eairksivorth restrictions of the husband's right, (1871) L. R. 6 Ch. 539, 40 L. J. Ch. namilton v. Eector (1871) L. R. 6 534. Ch. 701, L. R. 13 Eq. 511, 40 L. J. Ch. (I) Amlreics v. Salt (1873) L. R. 8 692. Ch. at p. 637. (o) Sicift v. Svyift (1865) 4 D. F. (m) Liions v. BJenldn (1820-1) & -J. 710, 714. 34 L. J. Ch. 209, 394, Jac. 245, 255. 263, 23 R. R. 38. and see the remarks in L. R. 6 Ch. (n) Vansittart X. Vansittart (1858) 705, L. R. 13 Eq. 520. 28 7?e Xcvin, [1891] 2 Ch. 299. 20 See Smart i: Smart, [1892] A. C. 425; United States v. Sauvage, 91 Fed. Rep. 490: Bonnett v. Bennett, 61 la. 199; Chapskv f. Wood, 26 Kan. 650; Matter of O'Neal. 3 A. L. Rev. 5V8; Pool v. Gott, 14 Law Rep. 269; Sturte- vant V. State, 15 Neb. 459 ; Clark v. Baver, 32 Ohio St. 299 : Enders v. Enders, 164 Pa. 266; Hoxie v. Potter, 16 R. I." 374: Merritt r. Swimlev, 82 Va. 433; Stringfellow v. Somerville, 95 Va. 701; Green v. Campbell, 35 W. Va. 698; RESTRICTIVE AGREEMENTS. 463 36 & 37 Vict. c. 12, s. 2. The law on this point is now modified by the Act 36 & 37 Vict. c. 13, which enacts (s. 2) that "No agreement contained in any separation deed between the father and mother of an infant or infants shall be held to be invalid by reason only of its providinc; that the father of such infant or infants shall give up the custody or control thereof to the mother: Provided always, that no Court shall en- force any such agreement if the Court shall be of opinion that it will not be for the benefit of the infant or infants to give effect thereto." This Act does not enable a father to delegate his general rights and powers as regards his infant children (p). Mother of illegitimate child. The mother of an illegitimate child has parental duties and rights recognized by the law (q), and cannot deprive herself of them by contract (r). Doctrine as to separation deeds in general based on same ground. The ob- jections formerly entertained (as we have seen) first against separa- tion deeds in general, and afterwards down to quite recent times against giving full effect to them in courts of equity, were based in part upon the same sort of grounds : and so are the reasons for which agreements providing for a future separation have always been held invalid. For not the parties alone, but society at large is interested in the observance of the duties incident to the marriage contract, as a matter of public example and general welfare. So as to sale of offices. Considerations of the same kind enter into the policy of the law with respect to the sale of offices, also spoken of above. Such transactions clearly involve the abandonment or eva- sion of distinct legal duties. Insurance of seamen's wages. On similar grounds, again, seamen's wages, or any -"remuneration in lieu of such wages, cannot be [349 the subject of insurance at common law (s). The reason of this is said to be " that if the title to wages did not depend upon the earning of freight by the performance of the voyage, seamen would want one great stimulus to exertion in times of difficulty and danger" (t). This reason, however, is removed in England by the Merchant Ship- (p) Re Besant (1870) 11 Ch. Div. (r) Eumjihrys v. Polalc [1901] 2 508, 518, 48 L. J. Ch. 497. K. B. 385. 70 L. J. K. B. 752, C. A. (s'(1602)' 11 Co. Rep. 87 h. RESTRAINT OF TRADE. 473 by the decision of a majority of their number, is in general restraint of trade as depriving each one of tliem of the control of his own busi- ness, and is therefore not enforceable (z). It makes no difference that the object of the combination is alleged to be mutual defence against a similar combination of workmen. The case decides on the whole that neither an agreement for a strike nor an agreement for a lock-out is enforceable by law. The Court of Exchequer Cham- ber thus expressed the general principle in the course of their judgment : — " Primu facie it is the privilege of a ti-ader in a free country, in all mat- ters not contrary to law, to regulate his own mode of carrying it [his trade] on according to his own discretion and choice. If the law has in any mat- ter regulated or restrained his mode of doing this, the law must be obeyed. But no power short of the general law ovight to restrain his free discre- tion " (a) . On like grounds a restrictive agreement between the *mem- [357 bers of a trade society as to the employment by any one member of travellers and other persons who had left the service of any other has been disallowed (&). It is not an unlawful restraint of trade for several persons carrying on the same business in the same place to agree to divide the business among themselves in such a way as to prevent competition, and pro- visions reasonably necessary for this purpose are not invalid because they may operate in partial restraint of the parties' freedom to exer- cise their trade. But a provision that if other persons, strangers to the contract, do not employ in particular cases that one of the con- tracting parties to whom as between themselves the business is assigned by the agreement, then none of the others will accept the employment, is bad (c). Reasons for not allowing unqualified restraint. The reasons for the rule are set forth at large in the leading case of Mitchel v. Reynolds {d)y (z) Hilton \. Eckcrsley (18.55-G) 6 who has left the sen-ice of another E. & B. 47. in Exch. Ch. ih. G6. 24 member, without the consent in writ- L. J. Q. B. 353, 2.5 ih. 109. The dicta ing of his late employer, until after there, so far as they suggest that the the expiration of two years from hia agreement would be a criminal offence leaving such service." at common law. are overruled bv Mo- (c) Collins v. Locke (1879) (J. C.) pul Steamship Co. v. M'Gregor, Goio 4 App. Ca. 074, 688. 48 L. J. P. C. 68; d Co. [1892] A. C. 25, 61 L. J. Q. B. Jones v. IVorth (1875) L. R. 19 Eq. 295. 426, 44 L. J. Ch. 388, a case not free (a) 6 E. & B. at pp. 74-5. from difficulties on other grounds, (h) Mineral Watrr Bottle, d-c. So- and apparently not fully argued or ciety V. Booth (1887) 36 Ch. Div. considered on this point. 465. The terms were: "No mem- id) (1711) IP. ^Yms. 181. and in ber of the society shall employ any 1 Sm. L. C. traveller, carman, or outdoor employe, 474 UNLAWFUL AGREEMENTS. and at a more recent date (1837) were put more concisely by the Supreme Court of Massachusetts^, who held a bond void which was conditioned that the obligor should never carry on or be concerned in iron founding: — " 1. Such contracts injure the parties making thorn, because they dimin- ish their means of procuring livelihoods and a competency for their families. They tempt improvident persons for the sake of gain to deprive themselves of the power to make future acquisitions. And they expose such persons to imposition and oppression. 2. They tend to deprive the public of the services of men in the employments and capacities in which they may be most useful to the community as well as themselves. 358] *3. They discourage industry and enterprise, and diminish the products of ingenuity and skill. 4. They prevent competition and enhance prices. 5. They expose the public to all the evils of monopoly" (e). For allowing particular restraint. The qualified admission of restraints has l)een commonly spoken of as an exception to the general policy of the law. But it seems better to regard it rather as anotlier branch of it. Public policy requires on the one hand that a man shall not by contract deprive himself or the state of his labour, skill or talent ; and on the other hand, that he shall be al)le to preclude himself from competing with particular persons so far as necessary to obtain the best price for his business or knowledge, when he chooses to sell it. Eestriction which is reasonable for the protection of the parties in such a case is allowed by the very same policy that forbids restrictions generally, and for the like reasons (/). Admission of restrictive covenants on sale of business in 17th century. In the early part of the seventeenth century the majority of the judges concluded that the jiolicy of the law was not opposed to the seller of a business making the sale effectual by undertaking not to compete with the buyer. For that purpose, " for a time certain and in a place certain a man may be well bound and restrained from using of his trade" (g), provided that it is upon a valuable considera- tion (//). Eestrictions extending to Newgate Market, in London, and the whole of country towns, such as Basingstoke and Newport (Isle ie) Alger V. Thacker (18.37) 19 v. LorsonM 18G9) L. R. 9 Eq. 34-5, at Pick. .51, 54. Agreements which aim p. 353. at creating a monopoly, or raising (g) Rogers v. Parry (1G14) 2 the price of either goods or labour, Bulst. 136, Coke's opinion adopted by have been constantly held void in the the Court. U. S. See Frank J. Goodnow. Trade (7i) To same effect, Broad v. Jol- Combinations at Common Law, Pol. lyfe, Cro. Jac. 596: B^-agg v. Stanner, Sci. Quart, xii. 212. Palm. 172, and see Parker C.J.'s ob- (/■) James V.-C. Leather Cloth Co. servation on the report of Rogers v. Parry, 1 Sm. L. C. at p. 394. RESTRAINT OF TRADE. 475 of Wight), were allowed, but it was said that such a promise cannot be good "if the *restraint be general throughout England" (t). [359 Mitchel V. Reynolds: Limit in space thought necessary. These author- ities were confirmed in 1711 by Mitchel v. Reynolds (k), the earliest case usually referred to, and it was settled that if a particular re- strictive contract, on the circumstances brought before the Court, *' appears to be a just and honest contract," it will be upheld. At that time, however, and long afterwards, it was taken for granted that such a contract could in no case be reasonable unless limited, at any rate, in space. " Where the restraint is general, not to exer- cise a trade throughout the kingdom," it was thought that it must be bad as matter of law. " Wliat does it signify to a tradesman in London what another does at Newcastle?" (l). Fixed rule of limits now held unsuitable to modern conditions. At this day we have no difficulty in seeing that it may signify very much to a merchant in London what another is doing- not only at Newcastle, but at Singapore or San Francisco. Fortunately no positive and direct decision stood in the way of the law being authoritatively de- clared by the House of Lords in a form suited to the conditions of modern trade and communications. Before the middle of the nineteenth century it was settled that, although a valuable and not merely colourable consideration there must be^ even if the contract is under seal, the Court will not attempt to estimate the adequacy of the consideration in this more than in any other class of cases (m). Gradually the question whetlier the restriction imposed was on the whole commensurate, in point of law, with the benefit conferred, be- came the only question seriously discussed. And now the dicta which apparently bound contracts of *this [360 kind within hard and fast rules must be taken not as general proposi- tions of law, but as applications of the general principle of reason- ableness to conditions of fact which at the time might well seem to be permanent, but which have passed away. In the leading case before the House of Lords, an inventor and manufacturer of guns and ammunition, doing business with military authorities in various parts of the world, sold his business to a com- (t) Prugnell\. Gosse, Aleyn, 67. Eq. 518, 43 L. J. Ch. 659. Formerly (k) 1 Sm. L. C. 391. it was thought (it would seem from (I) 1 Sm. L. C. at pp. 301, 397. some expressions in the earlier cases) (m) Hitchcock v. Coker (1837) 6 tfiat where the contract was by deed A. & E. 438. 45 R. R. 522 (Ex. Ch.) ; the consideration must appear on the Gravely v. Barnard (1874) L. R. 18 face of the deed. 476 UNLAWFUL AGREEMENTS. pany, and covenanted not to compete with the company in that part of the business for twenty-five years : this was held not too wide in the circumstances, though a distinct covenant not to engage in any busi- ness competing with that for the time being carriad on by the com- pany was disallowed (n). Detailed examples (formerly treated as special exceptions). Meanwhile various relaxations of the supposed fixed rule as to limits had been sanctioned. These are now nothing else than special illustrations of the broader principle; but as such they arc still useful and instructive. A limit of time is not necessary to make an agreement in restraint of trade valid, and it is not of itself sufficient (o). It has never been doubted that a partner may bind himself absolutely not to compete 361] with the firm during the partner*ship : so may a servant in a trade bind himself absolutely not to compete with the master during his time of service (p). A contract not to divulge a trade secret need not be qualifi-cd, and a man who enters into such a contract may to the same extent bind himself not to carry on a manufacture which, would involve disclosure of the process intended to be kept secret (q). Indeed it has been said that " sales of secret processes are not within the principle or the mischief of restraints of trade at all" (r). An undertaking by a tradesman purchasing goods from the manufacturers not to sell them below specified prices, and not to sell to any retail trader without taking a similar agreement from him, is not in re- straint of trade; for the manufacturers, not being bound to mak? or {n) 'Sordenftlt v. Maxim-l^'orden- sumption in fact against a restric- felt, dc. Co. [1894] A. C. 535, 63 L. J. tion without limit of space being rea- ch. 908, affirming S. C. notn. Maxim- sonably refjuired for the protection of 'Nordcnfelt, dec. Co. v. Nordenfelt the promisee, but there was no deci- [1893] 1 Ch. 630, 62 L. J. Ch. 273. In sion or principle to malie that pre- the C. A. Bowen L.J. endeavoured, in sumption applicable to the different an elaborate judgment, to show that state of facts produced by the nature the common law rule in its old form of modern trade and traffic. Lord was still in force, though the excep- Watson, Lord Ashbourne, and Lord tions were extended. In the H. L. Morris, without precisely concurring Lord Herschell, thinking this histori- in this, appear to have agreed in sub- cally correct, concluded on the whole stance with Lord Macnaghten. that the old rule had become " inap- (o) Hitchcock v. Coker (1837) 6 A. plicable to the altered conditions & E. 438. 45 R. R. 522. Ex. Ch. which now prevail.^" [1894] A. C. at (p) Wallis v. Day (1837) 2 M. & p. 548. Lord Macnaghten thought W. 273. 46 R. R. 602. Lord Bowen's distinctions too refined, (q) Leather Cloth Co. v. Lorsont justified the decisions in equity which (1869) L. R. 9 Eq. 345. at p. 353. Lord Bowen had criticized for disre- (r) Bowen L.J. MaTim-NordenfeU garding the comm.on law rule, and de- Co. v. \ordenfeU [1893] 1 Ch. 630, nied that there had ever really been a 660: but qu. whether this distinction hard and fast rule of law. Down to a be now necessary, recent time there was a strong pre- RESTRAINT OF TRADE. 477 sell their goods at all, or to sell to this or that person, are entitled to sell on their own terms (s). General reasonableness of restriction in particular cases. Wliether the re- striction contracted for in any particular case be reasonable is a ques- tion not of fact but of law, and evidence of persons in the trade as to what they think reasonable is not admissible (i). A covenant not to carry on " any business whatsoever," within however narrow limits of time and space, is manifestly unreasonable. Nor will the Court construe it as if limited to the particular business which is really in question (u). But a covenant not to ''deal or transact business" with customers of the covenantees or of their successors may be con- fined by the context to business of the same kind as that carried on by them at the date of the agreement (x). A covenant to retire, without expressed limit in space or time, from a partnership, and " so far as the law allows, from the trade *or business thereof in all [362 its branches," is bad for unreasonableness if the words " so far as the law allows " are surplusage, and bad for uncertainty if they are not ; the parties cannot throw on the Court the task of settling their agree- ment for them (y). A restrictive clause is not reasonable if it has the effect of making the covenantee the sole judge whether a new busi- ness undertaken by the covenantor competes with his own or not (z). A restrictive covenant which contains or may be read as containing distinct undertakings bounded by different limits of space or time, or different in subject-matter, may be good as to part and bad as to part (a). There is not any such rule as that a covenant in restraint of trade is presumed to be bad, and the party relying on it must justify it. " You are to construe the contract and then see whether it is legal" (h). What amounts of restriction have been held reasonable or not for the circumstances of different kinds of business is test seen in the tabular statement of cases (do-^Ti to 1854) subjoined to the report of Avery v. Langford (c). It may be convenient to add the later de- cisions in the same form. is) EUiman, Rons d Co. v. Carring- (s) Perls v. Saalfeld [1892] 2 Ch. ton d Son [1901] 2 Ch. 275. 149. 61 L. J. Ch. 409. C. A. (*) Haynes v. Domnn [1899] 2 Ch. (a) See Bai)ics v. Geary (1887) 35 13, 68 L. J. Ch. 419. C. A. Ch. D. 154, and authorities there col- («) Baker V. Hedqccock (1888) 39 lected : Maxim-Nordenfelt Co. v. Nor- Ch. D. 520. 57 L. J. Ch. 889; Perls v. detifelt [1893] 1 Ch. 630. 62 L. J. Ch. Saalfeld [1892] 2 Ch. 149, 61 L. J. 273. C. A. (no further appeal on this Ch. 409. C. A. point). (x) Mills V. Dtmham [1891] 1 Ch. (5) Mills v. Dunham [1891] 1 Ch. 576. 60 L. J. Ch. 362. C. A. 576. 587, per Lindlev L.J.; Badi.. Poi-icr's whom the account is sought, without rase, 1 Co. Rep. 25 a, the like as to a the sanction or knowledge of the condition in a devise, other: Thicaitesy.Coulthwaite [\%^&'[ (i) Edgioare Highway Board v. 1 Ch. 496. 65 L. J. Ch. 2.S8. Harrow Gas Co. ( 1874) L. R. 10 Q. B. (g) Way v. East, 2 Drew. 44, 23 92, 44 L. J. Q. B. 1. L. J. Ch. 109. (k) (1873) L. R. 8 Q. B. 202. 42 L. J. Q. B. 57. IGNORANCE OF ILLEGALITY, 495 that the plaintiff contemplated and expected that the hay would be landed, as that would be the natural course of things. But the land- ing was no part of the contract, and if the plaintiff had had before him the possibility of the landing being forbidden, he would proba1)ly have expected the defendant not to break the law; as in fact he did not, for no attempt was made to land the goods. " We quite agree that where 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 we think that in order to avoid a contract which can be legally performed 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 in- tention to break the law; and if this be so, the knowledge of what the law is becomes of great importance '' (I) -^^ (/) (1873) L. R. 8 Q. B. 207-8. ^ An agreement to marry will sustain an action, though the defendant at the time of the agreement was married to a third person, if the plaintiff was ignorant of that fact. Wild v. Harris, 7 C. B. 999 ; Daniel v. Bowles, 2 C. & P. 553; Millward V. Littlewood, 5 Ex. 552; Paddock V. Robinson, 63 111. 99, 100; Davis i: Pryor, 3 Ind. Ty. 396; Kelley r. Riley, 100 Mass. 339; Stevenson V. Pettis, 12 Phila. 468; Coover v. Davenport, 1 Heisk. 368, ace. In Blatt- macher V. Saal, 29 Barb. 22, and Pollock i: Sullivan, 53 Vt. 507, it was held that an action of tort for deceit would lie, but not an action for breach of contract. In other cases where the illegality of a contract results from facts unknown to the plaintiff, he is allov>cd relief. Hotchkiss v. Dickson, 2 Bligh, 348; Congress Spring Co. v. Knowlton, 103 U. S. 49; Pullman Palace Car Co. v. Central Transportation Co., 65 Fed. Rep. 158; Mobile, &c. R. R. Co. r. Dis- nnikes, 94 Ala. 131 (but see Gulf, &c. Ry. Co. v. Hefley, 158 U. S. 98; Southern Ry. Co. v. Harrison, 119 Ala. 539; Gerber v. Wabash R. R. Co., 63 Mo. App. 145; Wyrick v. Missouri, &c. Ry. Co., 74 Mo. App. 406)': Musson v. Fales, 16 Mass. 332; Emery r. Kempton,'^2 Gray, 257; Beram r. Kruscal. 18 N. Y. Misc. 479; Rosenbaum c. United States Credit Co., 65 N. J. L. 2;:5; Burkholder v. Bcetem's Adm., 65 Pa. 496. See also Harse v. Pearl Life Ass. Co., [1903 J 2 K. B. 92; Cranson v. Goss, 107 Mass. 439: Fox v. Rogers. 171 Mass. 546; Miller v. Hirschberg, 27 Oreg. 522. Compare Webster v. Sanborn, 47 Me. 471; Rocco v. Frapoli, 50 Neb. 665. On the same principle, though a promise to indemnify one from the conse- quences of doing an act which is necessarily illegal is unenforceable. Green- hood on Pviblic "Policy, 210 et seg., where the legality of the act depends on extrinsic facts unknown to the promisee, the jjromise will be enforced. Arundel r. Gardiner, Cro. Jac. 652; Fletcher r. Harcot, Winch, 48; Merri- weather v. Nixon, 8 T. R. 186; Betts V. Gibbons, 2 A. & E. 57; Elliston r Berrvman, 15 Q. B. 20.'i : Moore v. Appleton, 26 Ala. 633; Stark v. Raney, :S Cal.'622; Lerch r. Gallup, 67 Cal. 595; Marcv c. Crawford. 16 Conn. 549; Hi-gins r. Russo, 72 Conn. 238; Wolfe v. McClure. 79 111. 564; Marsh i. Gold, 2 Pick. 284; Train l\ Gold, 5 Pick. 379; Avery r. Halsev. 14 Pick. 174; C. F. Jewett Co. V. Butler, 159 Mass. 532; Shotwell r. H;imblin. 23 IMiss. 156; Forinquet r. Tegarden, 24 Miss. 96; Moore v. Allen, 25 Miss. 303; McCartney V. Shepard, 21 Mo. 573; Harrington's Adm. r. Crawford. 136 Mo. 467. 472; Allaire v. Ouland, 2 Johns. Cas. 54; Coventry r. Barton. 17 Johns. 142; Trus- tees r. Galatian, 4 Cow. 346; Chamberlain v. Beller. 18 N. Y. 115; Ives V. Jones, 3 Ired. 538; Miller r. Rhodes, 20 Ohio St. 494; Mays V. Joseph. 34 Oliio St. 22; Comm. r. Vandyke. 57 Pa. 34; Jamison r. Calhoun. 2 vSpper. 19; Davis v. Arledge, 3 Hill. 170; Hunter ;;. Agee, 5 Humph. 57; Ballard r. Pope, 3 U. C. Q. B. 317; Robertson v. Broadfoot, 11 U. C. Q. B. 407. See also 496 UNLAWFUL AGREEMENTS. 379 ] * Where agreement prima facie unlawful, not enough to show mere pos- sibility of lawful performance. But on the other hand where an agree- ment is prima facie illegal, it lies on the party seeking to enforce it to ,show that the intention was not illegal. It is not enough to show a mere possibility of the agreement being lawfully performed in par- ticular contingent events. " If there be on the face of the agreement an illegal intention, the burden lies on the party who uses expressions 'prima facie importing an illegal purpose to show that the intention was legal " {m). As to recovering back money or property. We now come to the rule, which we will first state provisionally in a general form, that money or property paid or delivered under an unlawful agreement cannot be recovered back.^'^ This rule (which is subject to exceptions to be presently stated) is ,the chief part, though not quite the whole, of what is meant by the :maxim In pari delicto potior est condicio defendentis {n). To some extent it coincides with the more general rule that money voluntarily paid with full knowledge of all material facts cannot be recovered "back. However the principle proper to this class of cases is that persons who have entered into dealings forbidden by the law must not expect any assistance from the law, save so far as the simple refusal to enforce such an agreement is unavoidably beneficial to the (w) Holland v. Hall (1817) 1 B. & quamquam etiam so non sit perpetua Aid. 53, 18 R. R. 428, per Abbott J.; causa . . . idem dicendum est, quia AUkins v. Jiipe (1877) 2 C. P. D. statim contra mores sit ": D. 45, 1 de 375, 46 L. J. C. P. 824. The same v. o. 35 § 1. principle is expressed in a different {n) Cp. D. 50, 17. de reg. iiiris, form by Paulus: "Item quod leges 154, C. 4, 7, de condict. ob turpem fieri prohibent, si perpetuam causam oausam, 2. servaturum est, cessat obligatio . . . Vandiver r. Pollak, 97 Ala. 467; 107 Ala. 547; Union Stave Co. r. Smith, 116 Ala. 416; Griffiths v. Hardenbergh, 41 N. Y. 464. 55 Dent V. Ferguson. 132 U. S. 50; Dunkin v. Hodge, 46 Ala. .523; Branham V. Stallings. 21 Col. 211; Thompson c. Cummings, 68 Ga. 124; Tobey v. Robin- son, 99 111. 224; Winchester Co. r. Veal, 145 Ind. 506; Myers v. Meinrath. 101 Mass. 366; Hooker r. De Palos. 28 Ohio St. 251; Perkins v. Savage, 15 Wend. 412; Singer Co. v. Draper, 103 Tenn. 262; Miller v. Larson, 19 Wis. 463. One who has given his negotiable note to compound a crime, and has been compelled to pay the note to a bona fide purchaser thereof, cannot recover the money so paid from him to whom the note was given. Haynes v. Rudd, 83 K Y." 251. One of several cotenants who has participated in an attempted fraud Avhereby the estate was sold to another cotenant for the non-pa^Tnent of taxes cannot obtain the aid of a court of equity to recover from the purchaser what he has lost. Lawton v. Estes, 167 Mass. 181. WHEN PAYMENTS CAN BE RECOVERED. 497 party sued upon it. As it is sometimes expressed, the Court is neutral between the parties. The matter is thus put by Lord Mansfield : " The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the 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 defendant has the ad- [380 vantage of contrary to the real justice as b'.'tween him and the plaintiff, by accident, if I may say so. The principle of public policy is this: ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If from the plaintiff's own stating or otherwise the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes ; not for the sake of the defendant, but because they will not lend their aid to such a plain- tiff. So if the plaintiff and defendant were to change sides, and the defend- ant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where botii are equally in fault, potior est conditio dcfendentis "(0) , Plaintiff can't recover where his own unlawful conduct is part of his own case. The test for the application of the rule is whether the plain- tiff can make out his case otherwise than " through the medium and by the act of an illegal transaction to which he was himself a party" (p)-^^ It is not confined to the case of actual money pay- ments, though that is the most common. Wliere the plaintiff had deposited the half of a bank note "^'ith the defendant by way of pledge to secure the repayment of money due for wine and suppers supplied by the defendant in a Ijrothel and disorderly house kept by the de- fendant for the purpose of being consumed there in a debauch, and for money lent for similar purposes, it was held that the plaintiff could not recover, as it was necessar}- to his case to show the true character of the deposit (q). The Court inclined also to think, but did not decide, that the plaintiff's case must fail on the more general ground that the delivery of the note was an executed contract by (0) Holman v. Johnson (1775) on a bailment of the half-note to be Cowp. 341, 343. re-delivered on request, and in det- (p) Taylor X. Chester (1869) L. R. inue. Pleas, in effect, that it was 4 Q. B. 309, 314, 38 L. J. Q. B. 225. deposited by way of pledge to secure (q) This is apparent by the course money due. Replication, the immoral of the pleadings ; the declaration was character of the debt as above. 50 This test " is too narrow in its terms, and excludes many cases where the plaintiff might establish his ease independently of the illegal transaction, and vet would find his demand tainted bv that transaction." Hanauer v. Woodruff, 15 Wall. 439, 443. See also CoppelTr. Hall, 7 Wall. 542; Jefferson r. Burhans, 85 Fed. Rep. 949; Sampson v. Shaw, 101 Mass. 145, 152; Baltimore & Ohio R. Co. P. Diamond Coal Co., 61 Ohio St. 242, 252; Johnson r. Hulings, 103 Pa. 498. 32 498 UNLAWFUL AGREEMENTS. which a special property passed, and that such property must re- main (r).^"^ 381 ] *The rule is not even confined to causes of action ex contractu. An action in tort cannot be maintained when the cause of action springs from an illegal transaction to which the plaintiff was a party, and that transaction is a necessary part of his case (s). Independently of the special grounds of this rule, a completely executed transfer of property, though originally made upon an unlaw- ful consideration or in pursuance of an unlawful agreement, is after- wards valid and irrevocable (t). The rule is not applicable in the following classes of cases, most of which however cannot properly be called exceptions. Duty of agents and trustees to account to principals notwithstanding collat- eral illegality. An agent is not discharged from accounting to his principal by reason of past unlawful acts or intentions of the principal collateral to the matter of the agency. If A. pays money to B. for the use of C, B. cannot justify a refusal to pay over to C. by showing that it was paid under an unlawful agreement between A. and C. (w).^® Again, if A. and B. make bets at a horse-race on a joint (r) Compare Ex parte Caldecott 501, 513, 15 L. J. C. P. 125. a peculiar (1876) 4 Ch. Div. 150, 46 L. J. Bk. and apparently solitary example. 14, p. *331, above; Begbie \. Phos- (/) Ayerst v. Jenkins (1873) L. E^ phate Seicage Co. (1875) L. R. 10 Q. 16 Eq. 275, 42 L. J. Ch. 690. Cp. B. 491. 500, affd. in C. A. 1 Q. B. D. iVCallan v. Mortimer (1842) (Ex. iv. 679. Ch.) 9 M. & W. 636. (s) Fivazv.Nicholls (1846) 2 C. B. (u) Tenant v. Elliott (1797) 1 B. & P. 3, 4 R. R. 755. 5" " One who ha? voluntarily made a pledge to secure the payment of an illegal demand against him is not afterwards entitled to reclaim the same without payment of the demand."' King v. Green. 6 Allen, 139; Harris V. Woodruff. 124 Mass. 205. Cp. Marden v. Phillips, 103 Fed. Rep. 196; Dempsey r. Harm, 12 Atl. Rep. 27, 20 W. X. C. 266 ("Pa.). 58 Kinsman v. Parkhurst. 18 Hom'. 289. 293; McMullcn v. Hoffman, 174 U. S. 639, 660, 609; Caldwell v. Harding. 1 Lowell, 326: Barker r. Parker, 2.3' Ark. 390; First Bank v. Leppel, 9 Col. 594; Brady v. Horvath, 107 111. 610; Willson f. Owen. 30 Mich. 474; Roselle r. Beckemeier, 134 Mo. 380; Porter v. Sherman County Banking Co., 40 Neb. 274; Evans r. Trenton, 24 N. J. L. 764; Merritt r. Millard, 4 Keves, 208; Woodworth v. Bennett, 43 T. Y. 273; Norton v. Elinn, 39 Ohio St. 145: Geurinck v. Alcott, 66 Ohio St. 94; Floyd v. Patter- eon. 72 Tex. 202: Lovejoy v. Kaufman. 10 Tex. Civ. App. 377; Lemon v. Gross- kopf, 22 Wis. 447 : Kiewert r. Rindskopf, 46 Wis. 481 ; Heckman v. Doty, 86 Wis. 1. 14. Cp. Pittsburg Carbon Co. i: McMillin, 119 N. Y. 46: Emery r. Ohio Candle Co.. -17 Ohio St. 320. An ngent cannot retain against his princi- pal the proceeds of goods sold in an imlnwfnl traffic. Planter's Bank r. L'^nion Bank. 16 Wall. 483; Bibb v. Miller. 11 Bush. 306. 310; Gilliam r. Brown. 43 Miss. 641: Lestapies r. Tngraham. 5 Pa. 71: Hertzler v. Geigley, 196 Pa. 419; Anderson r. Moncrief. 3 Desaus. 124: Tate r. Pefruos. 28 S. C. 463: Lovejoy v. Kaufman. 16 Tex. Civ. App. 377: Baldwin r. Potter, 46 Vt. 402. See also Taylor v. Pells, 113 111. 145; Andrew v. Brewing Assoc, 74 Miss. 362. But WHEN PAYMENTS CAN BE RECOVERED. 499 account and B. receives the winnings, A. can recover his share of the money or sue on a bill given to him by B. for it S''-^ here indeed there is no illegality in the proper sense (x). *For the same reason [382 an agent employed to bet and collect winnings is bound to account to his principal for what he collects, though the losers could not have been compelled to pay (y). But, by statute, such an agent cannot recover from his principal eitlier any money paid by him in respect of losses or any reward or commission for his services; nor can one who pays bets at the loser's request recover the money, whetlier he was employed in making the bets or not (z). In like manner the (x) Johnson v. Lansley (1852) 12 held that the principal could not re- C. B. 4G8. And where B. uses moneys pudiate ; in Ferry v. Barnett (1885) of his own and A.'s in betting, on the 15 Q. B. Div. 388, 54 L. J. Q. B. 46G, terms of dividing winnings in certain it was held that, if he did not know proportions, A. can sue B. on a cheque the usage of the Stock Exchange, he given for his share of winnings: Bees- coxild. ton\. Beeston (1875) 1 Ex. D. 13, 45 (t/) Bridger v. Savage (1884) 15 L. J. Ex. 230. Cp. and dist. Higgin- Q. B. Div. 363, 54 L. J. Q. B. 464: son v. 8i)npson ( 1877 ) 2 C. P. D. 76, the contract of agency is not a gam- 46 L. J. C. P. 192, where the trans- ing or wagering contract. This does action in question was held to be in not seem to be affected by the Gaming substance a mere wager. A fine dis- Act, 1802. But he cannot be liable tinction has been taken in two cases for failing to make bets or colle<'t of purchase of bank shares through winnings, for the collection is preca- brokers, where the contract note rious: Cohen v. Kittell (1889) 22 Q. omitted to specify the numbers of the B. D. 681, 58 L. J. Q. B. 241. shares as required by Leeman's Act, {z) The Gaming Act, 1892, 55 Vict. 30 & 31 Vict. c. 29, s. 1. The brokers, c. 9, amending 8 and 9 Vict. c. 109, as if they had not completed the con- interpreted {qu. whether rightly) by tracts, might have been declared de- Bead v. Anderson (1884) 13 Q. B. faulters and expelled from the Stock Div. 779, 53 L. J. Q. B. 532: Tatam v. Exchange. In Seymour v. Bridge J^f^eve [1893] 1 Q. B. 44, 62 L. J. Q. B, (1885) 14 Q. B. D. 460, Mathew J. SO. ,S'e/H6Zf, the plaintiff could not re- eee Lanahan v. Patterson, 1 Flippin, 410; O'Bryan v. Fitzpatrick, 48 Ark. 487; Nave V. Wilson, 12 Ind. App. 38; Udall r. Metcalf, 5 N. H. 396; Kirk v. Morrow, 6 Heisk. 445; Mexican Banking Co. c. Lichtenstein, 10 Utah, 338; Buck V. Albee, 26 Vt. 184; Lemon v. Grosskopf, 22 Wis. 447. Where the defendant was employed by the plaintiffs to draw an illegal lottery, and fraudulently induced the plaintiffs to believe that a certain ticket had draAvn a prize, and to pay the amount of such prize to one who held the ticket and received the money for the defendant, it was held that the illegality of the lottery was not a defense to an action for money had and received; Catts v. Phalen, 2 How. 376. And see Martin i\ Hodge, 47 Ark. 378; Phalen v. Clark, 19 Conn. 421; Martin v. Richardson, 94 Ky. 183. Cp. Kitchen v. Greenabaum, 61 Mo. 110. Where the beneficiary in an unlawful policy of life insurance, by frauduleiitly representing that he whose life was insured' had died, induces the insurer to pay him the amoimt of the policy, the unlawfulness of the contract of insurance will not prevent a recoverv bv the insurer of the money thus fraudulently obtained. Insurance Co. r. Elliott. 7 Sawyer, 17, 5 Fed. Rep. 225. Where the president of a bank fraudulently induced a 'purchaser to buy bonds of the bank, the purchaser Avas allowed to recover the money oaid tho\io-h the sale of the bonds by the bank was illegal. National Bank v. Petrie, 189 U. S. 423. See also Webb v. Fulchire. 3 Ired. L. 485. saOwen v. Davis, 1 Bailey, 315. But see Northrup v. Buffington, 171 Mass. 468, 471. 500 UXLAWFUL AGREEMENTS. right to an account of partnership profits is not lost by the particuhar transaction in which they were earned having involved a breach of the law (a).^ Nor can a trustee of property refuse to account to his cestui que trust on grounds of this kind:^^ a trust was enforced where the persons interested were the members of an unincorporated trad- ing association, though it was doubtful whether the association itself was not illegal (b). So, if A. with B.'s consent effects a policy for his own benefit on the life and in the name of B., having himself no insurable interest, the policy and the value of it belong, as between them, to A. (c).^^ If a man entrusts another as his agent with money cover even if he did not know that the main object of the partnership is iin- payments he made at the defendant's lawful: Thwaites v. Coulthwaite request were for bets. The Act is not [1896] 1 Ch. 496, 65 L. J. Ch. 238. retrospective: Knight v. Lee [1893] (6) Sheppard v. Oxenford (1855) 1 1 Q. B. 41, 62 L. J. Q. B. 28. K. & J. 491. («) Sharp v. Taylor (1849) 2 Ph. (c) Worthingto7i v. Curtis (1875) 801. Of course it is not so where the 1 Ch. Div. 419, 45 L. J. Ch. 259. GO In Brooks V. Martin, 2 Wall. 70. it was held that after the objects of a partnership, formed for the purpose of engaging in a traffic, confessedly illegal, have been fully accomplished a partner in whose hands the profits are cannot refuse to account for and divide them. The court relied mainly on the authority of Sharp r. Tayloi', saying: " It will be at once perceived that the principle is the same in both cases, and that the analogy in the facts is so close that any rule on the subject which should govern the one ought also to control the other." Ace. Wann v. Kelly, 5 Fed. Rep. 584 ; Cook r. Sherman, 20 Fed. Rep. 167; Robison i: M'Cracken, 52 Fed. Rep. 730; Crescent Co. V. Bear, 23 Fla. 50; Willson v. Owen, 30 Mich. 474; Gilliam v. Brown, 43 Mis. 641; Hatch V. Hanson, 46 Mo. App. 323; Manchester Rv. Co. v. Concord Ry. Co., 66 N. H. 600; Pfeuffer v. Maltby. 54 Tex. 454; Patty v. City Bank. 15 Tex. Civ. App. 475; McDonald v. Lund, 13 Wash. 412. It is submitted that this is unpleasantly analogous to Everet i'. Williams, supra, p. *275. Brooks V. Martin is now practically overruled. McMullen v. Hoffman, 174 U. S. 639, 668. And see the observations of Jessel, M. R., upon Sharp v. Taylor, in Sykes v. Beadon, 11 Ch. D. 170, 195; also Cambioso v. Maffitt, 2 Wash. C. C. 1)8; Chicago Rv. Co. c. Wabash Rv. Co., 61 Fed. Rep. 903 (C. C. A.)' Craft V. McConoughy, 79 111. 346 ; Northrup v. Phillips, 99 111. 449 ; Hunter v. Pfeiffer, 108 Ind. 197; Central Trust Co. r. Respass, 23 Ky. L. Rep. 1905; Snell i\ Dwight, 120 Mass. 9; Roselle o. McAuliffe, 141 Mo." 36; Morrison V. Bennett, 20 Mont. 560; Gould v. Kendall, 15 Neb. 549: Todd v. Raflforty's Admrs., 30 N. J. Eq. 254; Watson v. Murray, 23 N. J. Eq. 257: Woodworth r. Bennett, 43 N. Y. 273; Leonard r. Poole, 114 N. Y. 371: King r. Winants, 71 N. C. 469; Emerv v. Ohio Candle Co., 47 Ohio St. 320; Patterson's Appeal (S. C, Pa.) 13 \V. N. Cas. 154; Read v. Smith, 60 Tex. 379: Witra-ins r. Bisso, 92 Tex. 219; Watson v. Fletcher, 7 Gratt. 1; Atwater v. Manville, 106 Wis. 64. If a partnership carries on a legal and also an illegal business, equity will adjust the affairs of the legal business. Anderson v. Powell, 44 la. 20; Central Trust Co. r. Respass, 23 Ky. L. Rep. 1905. In Jackson v. Brick Assoc, 53 Ohio St. 303, it was held that in contempla- tion of law an association formed for an illegal purpose is not a partnership, and therefore cannot sue in its associate name, as partnerships in Ohio are allowed to do bv statute. Co. Tnvlor r. Bell Soap Co., 45 N. Y. Supp. 939. 61 Hazard v. Dillon. 34 Fed. Rpp. 485. 62 Cp. Ruth V. Katterman, 112 Pa. 251. WHEN PAYMENTS Cx\.N BE RECOVERED. 501 to be paid for an unlawful purpose, he may recover it at any time be- fore it is actually so paid ; or even if the agent does pay it after having been warned not to do so (d) ; the reason is that * whether [383 the intended payment be lawful or not an authority may always be countermanded as between the principal and agent so long as it is not executed (e).^^ It is the same where the agent is authorized to apply in an unlawful manner any part of the moneys to be received by him on account of the principal; he must account for so much of that part as he has not actually paid over (e). The language of the statute 8 & 9 Vict. c. 109, s. 18, which says that no money can be re- covered " which shall have been deposited in the hands of any person to abide the event upon which any wager shall have been made " does not prevent either party from repudiating the wager at any time either before or after the event and before the money is actually paid over and recovering his own deposit from the stakeholder (/).^^ Also (d) Hasteloiv V. Jackson (1828) 8 terms. 5 App. Ca. 342, 49 L. J. P. C. B. & C. 221, 22G, 32 R. E. 309, 373. 49. Cp. Barclay v. Pearson [1893J (e) Bone v. Ekless (1860) 5 H. & 2 Ch. 154. This is not affected by the N. 925, 29 L. J. Ex. 438. Gaming Act, 1892: O'Sullivan v. (f) Diggle V. Higqs (1877) 2 Ex. Thomas [1895] 1 Q. B. 698, 64 L. J. Div. 422, 46 L. J. Ex. 721; Hamp- Q. B. 398; ^hoolbred V. Roberts dcnv. Walsh (1876) 1 Q. B. D. 189; [1899] 2 Q. B. 560, 68 L. J. Q. B. 45 L. J. Q. B. 238, \vhere former 998; confirmed by C. A. in Burge v. authorities are collected and consid- Ashley and Hmith [1900] 1 Q. B. ered: Trimbl-e v. Hill (1879) (J. C.) 744, 69 L. J. Q. B. 538. on a colonial statute in the same 63 Wassermann v. Sloss, 117 Cal. 425; Hardy v. Jones, 63 Kan. 8; Sampson V. Shaw, 101 Mass. 145; Bank V. Wallace, 61 N. H. 24; Lester v. Buel, 49 Ohio St. 240, 255: Peters o. Grim, 149 Pa. 163; Smith v. Blachlev, 188 Pa. 550; Kiewert v. Rindskopf, 46 Wis. 481; Wells v. McGeoch, 71 Wis". 196. Cp. Mor gan v. Groff, 5 Den. 364. 64 Lewis V. Bruton, 74 Ala. 317; Thornhill v. O'Rear, 108 Ala. 299; Wheeler V. Spencer, 15 Conn. 28; Hale v. Sherwood, 40 Conn. 332; Colson v. Meyers, 80 Ga. 499; Petilion v. Hippie, 90 111. 420; Frybarger v. Simpson, 11 Ind. 59; Burroughs v. Hunt, 13 Ind. 178; Adkins v. Fleraming, 29 la. 122; Pollock V. Agner, 54 Kan. 618; Hutchings V. Stilwell. 18 B. Mon. 776; Stacev V. Foss, 19 Me. 335: McDonough v. Webster, 68 Me. 530; Gilmore V. Woodcock, 69 Me. 188, 70 Me. 494; Fisher r, Hildreth, 117 Mass. 558: Morgan v. Beaumont, 121 Mass. 7: Whitwell v. Carter, 4 Mich. 329; Wilkinson r. Tousley, 16 Minn. 263; Pabst Brewing Co. v. Liston, 80 Minn. 473; Weaver v. Harlan, 48 Mo. App. 319; White v. Gilleland, 93 Mo. App. 310; Deaver r. Bennett, 29 Neb. 812; Perkins r. Eaton, 3 N. H. 152; Hoit i: Hodge, 6 N. H. 104; Hensler v. Jen- nings, 62 N. J. L. 209; Stoddard v. McAuliflfe, 81 Hun, 524; affirmed without opinion, 151 N. Y. 671; Wood c. Wood, 3 Murph. 172: Forrest r. Hart, 3 Murph. 458; Dunn r. Drummond, 4 Okla. 461: Willis r. Hoover, 9 Oreg. 418; Conkiin r. Conway, IS Pa. 329; Dauler r. Hartlev, 178 Pa. 23; McGrath v. Kennedy, 15 R. 1. 209: Bledsoe r. Thompson, o' Rich. L. 44: Guthman r. Parker. 3 Head, 234: Lillard r. Mitchell. 37 S. W. Re^i 702 (Tenn.) ; L^wv r. Crawford, 5 Tex. Civ. App. 293: Torleton r. Baker, IS Vt. 9: West r. Holmes, 26 Vt. 530. See also Shoolbred r. Roberts. [1899] 2 Q. B. 560, [1900] 2 Q. B. 497; Trenery r. Goudie, 106 la. 693: Jones v. Cavanaugh, 149 Mass. 124. But in Sutphin r. Crozer, 32 N. J. L. 360, it was held that no action could be 502 UNLAWFUL AGREEMENTS. it does not apply to money or other valuables deposited by way of security or " cover " for the performance of a wagering agreement {g). Money recoverable back, where agreement not executed. Where money has been paid under an unlawful agreement, but nothing else done in performance of it, the money may be recovered back. But in the decision which establishes this exception it is intimated that it prob- ably would not be allowed if the agreement were actually criminal or immoral (h). In general, ''if money is paid or goods delivered for an illegal purpose, the person who has so paid the money or de- livered the goods may recover them back before the illegal purpose " — or rather, 1)cfore any material part of it — (i) "is carried out;^^ but 384] if he waits *till [some material part of] the illegal purpose is carried out, or if he seeks to enforce the illegal transaction, in neither case can he maintain an action" (k). And the action cannot (g) Universal Stock Exchange, Ld. Q. B. Div. 742, 59 L. J. Q. B. 288; op. V. ktrachan (No. 1) [1896] A. C. H erman v . J euckner (1885) 15 Q. B. 166, 65 L. J. Q. B. 428. Div. 561, 54 L. J. Q. B. 340. (h) Tappenden v. Randall (1801) {k) Per Mellish L.J. Taylor v. 2 B. & P. 467, 5 R. R. 662. Bovers (1870) 1 Q. B. Div. 291, at (i)Kearleu v. Thomson (1890) 24 p. 300. maintained by either party against the stakeholder to recover money illegally staked. In a few States demand must be made upon the stakeholder before the wager has been decided. Johnston v. Russell, 37 C'al. 670; Davis v. Holhrook, 1 La. Ann. 176; Hickerson r. Benson, 8 Mo. 8; Connor v. Black, 132 Mo. 150, 154. In ^lissouri this doctrine has been enacted bv statute. See Weaver v. Harlan, 48 Mo. App. 319; White V. Gilleland, 93 Mo. App. 310; Dooley v. Jackson, 104 Mo. App. 21. If a stakeholder pays the winner, before receiving notice of repudiation of the wager, he is not liable. Colson r. Meyers, 80 Ga. 499 ; Frybarger r. Simp- son, 11 Ind. 59; Adkins V. Flemming. 29 la. 122: Goldberg v. Feiga, 170 Mass. 146: Riddle r. Perry, 19 Xfb. 505; Bates ;•. Lancaster, 10 Humph. 134. Unless made so bv statute, see Hensler r. Jennings, 62 N. .1. L. 209 ; Ruckman r. Pitcher, 1 N. Y. .^92 ; 20 N. Y. 9 ; Columbia Bank v. Holdeman, 7 W. & S. 233 ; Harnden v. Melby, 90 Wis. 5. Repudiation must be absolute. A notification not to pay the winner until further notice was held insufficient. Ti-enery v. Goudie, 106 la. 693. See also ]Maher r. Van Horn, 15 Col. App. 14. But see Pabst Brewing Co. i\ Liston, 80 Minn. 473. If notwithstanding notice not to do so, the stakeholder pays the money to the winner, the loser may recover his deposit from the winner. ilcKee v. ]\Ianice. 11 Cush. 357; Love v. Harvey, 114 Mass. 80. But if after the wager is decided against one of the parties, he, contending that he is the winner, de- mands the whole deposit and forbids its pa^anent to the other party, lie cannot, after payment of the whole deposit to tlie other partv. recover from the stake- holder for the amount deposited by himself. Ockerson r. Crittenden, 62 la. 297: Patterson r. Clark. 126 Mass." 531. But see Hale v. Sherwood, 40 Conn. 332 : Perkins v. Hvde. 6 Yerg. 288. fis Spring Co. v. Knowlton, 103 U. S. 49 (S. C. cnnfrn. 57 K Y. 5J8) ; Block r. Dnrline. 140 IT. S. 234; Wassermann v. Sloss, 117 Cnl. 425: De Leonis V. Walsh. 140 Cal. 175: White r. Bank. 22 Pick. 181; Skinner v. Henderson, 10 Mo. 205; Brown v. Timmany, 20 Ohio, 81. WHEN PAYMENTS CAN BE RECOVERED. 503 Tdg maintained by a party who has not given previous notice that he repudiates the agreement and claims his money back (Z). In Taylor V. Bowers {l^) A. had delivered goods to B. under a fictitious assign- ment for the purpose of defrauding A.'s creditors. B. executed a bill of sale of the goods to C, who was privy to the scheme, with- out A.'s assent. It was held that A. might repudiate the whole transaction and demand the return of the goods from C. In Symes V. Hughes (m), a case somewhat of the same kind, the plaintiff had assigned certain leasehold property to a trustee with the intention of defeating his creditors; afterwards under an arrangement with his creditors he sued for the recovery of the property, having undertaken to pay them a composition in case of success. The Court held that, as the illegal purpose had not been executed, he was entitled to a re- conveyance. It will be observed however that the plaintiff was in effect suing as a trustee for his creditors, so that the real question was whether the fraud upon the creditors should be continued against the better mind of the debtor himself. The cases alcove mentioned as to recovering money from agents or stakeholders are also put partly on this ground, which however does not seem necessary to them (n). Parties not in pari delicto. In certain cases the parties are said not to be in pari delicto, namely where the unlawful agreement and the *payment take place under circumstances practically [385 amounting to coercion.*'^ (Zi) (1876) 1 Q. B. Div. 291. was doubted, decides only this: A {I) Palyart v. Leckie (1817) 6 M. man cannot sue a stakeholder for -& S. 290, 18 R. R. 381. the whole of the sweepstakes he has (m) (1870) L. R. 9 Eq. 475, 39 won in a lottery, and then reply to L. J. Ch. 304. the objection of illegality that if the (n) Hastelow v. Jackson (1828) 8 whole "thino; is illegal he must at all B. & C. 221, 32 R. R. 369. Mearing events recover his own stake. Alle- V. Hellings (1845) 14 M. & W. 711, gans contraria non est audiendus. 15 L. J. Ex. 168, where that case 6G Or where the law, the violation of which constitutes the illegality in the transaction, was intended for the coercion of one party only, or the protection of the other. Thomas r. Richmond, 12 Wall. 349 ; Parkersburg r. Brown, 106 U. S. 487, 503; Logan (bounty Bank r. Townsend, 139 U. S. 67; Scotten v. State, 51 Ind. 52; Deming r. State, 23 Ind. 416; Smart V. White, 73 Me. 332; White r. Bank, 22 Pick. 181; Morville v. Amer. Tract Soc, 123 Mass. 129, 137 138: Manchester R. Co. v. Concord R. Co., 66 N. H. 100, 131; Schermer- horn V. Talman, 14 N. Y. 93, 123; Tracy r. Talmage, 14 N. Y. 162, 181. 199; Oneida Bank r. Ontario Bank, 21 N. Y. 490: Bateman r. Robinson, 12 Neb. 508; Duval V. Wellman, 124 N. Y. 156; Webb r. Fulchire, 3 Ired. L. 485; Reinhard r. Citv. 49 Ohio St. 257; Insurance Co. r. Hull, 51 Ohio St. 270; Smith V. Blachley, 188 Pa. 550. "The cases in which the courts will give relief to one of the parties on the ground that he is not in pari delicto foriu an indepemlent class entirely dis- tinct from those cases which rest upon a disaffirmance of the contract before it 504 UNLAWFUL AGREEMENTS. Purchase of creditor's assent to composition. The chief instances of this kind in courts of law have been payments made by a debtor by way of fraudulent preference to purchase a particular creditor's as- sent to his discharge in bankruptcy or to a composition. The leading modern case is Atkinson v. Denhy (o).^'^ There the defendant, one of plaintiff's creditors, refused to accept the composition unless he had something more, and the plaintiff paid him 50^. before he exe- cuted the composition deed. It Avas held that this money could be recovered back. " It is true," said the Covirt of Exchequer Chamber, "that both are in delicto, because the act is a fraud upon the other creditors, but it is not par delictum, because the one has the power to dictate, the other no alternative but to submit." On the same ground money paid for compounding a penal action contrary to the statute of Elizabeth may be recovered back (/)). But where a bill is given by way of fraudulent preference to purchase a creditor's assent to a composition, and after the composition the debtor chooses to pay the amount of the bill, this is a voluntary payment which cannot be recovered (5), Like doctrine of equity. In equity the application of this doctrine has been the same in sul)stance, though more varied in its circumstances. The rule followed by courts of equity was thus described by Knight Bruce, L.J. : " Where the parties to a contract against public policy or illegal are not in pari delicto (and they are not always so) and where public policy is considered as advanced by allowing either, or at least the more excusable of the two, to sue for relief against (0) (1860) 6 H. & X. 778, 30 L. J. (p) Williams v. Eedley (1807) 8 Ex. 361, in Ex. Ch. 7 H. & N. 934, East, 378, 9 R. R. 473. 31 L. J. Ex. 362: the chief earlier (q) Wilson \. Ray (1839) 10 A, 4. ones are Smith v. Bromley (1760) 2 E. 82, 50 R. R. 341. Doug. 695: Smith v. Cuif (1817) 6 M. & S. 160, 18 R. R. 340. is executed. It is essential to both classes that the contract be merely malum prohibit'iim . If malupi, in se the courts will in no case interfere to relieve fither party from any of its consequences. But where the contract neither in- volves moral turpitude nor violates any general pri)iciple of public policy, and money or property has been advanced upon it, relief will be granted to the party making the advance. 1. Where he is not i^i pari delicto; or, 2. In some cases Avhere he elects to disaffirm the contract while it remains executory. In cases belonging to the first of these classes, it is of no importance whether the contract has been executed or not : and in those belonaing to the second it is equallv unimportant that the parties are in pari delicto." Per Selden, J., in Tracy' r. Talmage, 14 N. Y. 162, 181. ^7 See also Bean r. Brookmire, 2 Dillon, 108; Bean r. Amsinck, 10 Blatchf. 361 : Brown v. Everett. &c. Co.. Ill On. 404: Crossley r. Moore. 40 X. .1. L. 27. But a payment made bv a third party not nearlv related to the debtor cannot be recovered back. Solinger v. Earle, 82 N. Y. 393. •WHEN PAYMENTS CAN BE RECOVERED. 505 the transaction, relief is given to him, as we know from various *authorities, of which Osborne v. Williams [see helow] is [386 one" (r).68 Special grounds of relief. On this principle relief was given and an account decreed in Osborne v. Williatns (s), where the unlawful sale of the profits of an office was made by a son to his father after the son had obtained the office in succession to his father and upon his recommendation, so that he was wholly under his father's control in the matter. In Reynell y. Spnje (t) an agreement bad for champerty was set aside at the suit of the party who had been induced to enter into it by the other's false representations that it was a usual and proper course among men of business to advance costs and manage litigation on the terms of taking all the risk and sharing the prop- erty recovered. In a later case a mortgage to secure a loan of money which in fact was lent upon an immoral consideration was set aside at the suit of the borrower on the ground that the interest of others besides parties to the corrupt bargain was involved (u). A wider ex- ception is made, as we have seen above, in the case of agreements of which the consideration is future illicit cohabitation between the parties. Apart from this particular class of cases, it is submitted that the rule and its qualifications may be stated to this effect: 7. Statement of the rule as qualified. Money paid or property deliv- ered under an unlawful agreement cannot be recovered back, nor the agreement set aside at the suit of either party — unless nothing has been done in the execution of the unlawful purpose beyond the payment or delivery itself (and the agreement is not positively criminal or immoral?); or unless the agreement was made under such circumstances as be- tween the parties that if otherwise lawful it *would be voidable [387 at the option of the party seeking relief (x) ; (r) Reynell v. Spnje (1852) 1 D. (u) W. v. B. (18G3) 22 Bear. 574. M. & G. 600. at p. 670. (x) This form of expression is not (s) (1811) 18 Ves. 379, 11 R. R. positively warranted by the authori- 218. ties, but is submitted as fairly rep- (t) 1 D. M. & G. 660, 679. resenting the result. (^SSee also De Chambrun r. Sehermerhorn, 59 Fed. Rep. 504. 508: Lijjhthall r. Moore, 2 Col. App. 554; Baehr v. Wolff, 59 111. 470: Herrick r. Lyncli. 150 111. 283; Norton v. Norton, 74 Ta. 161; Deatley's Heirs v. Murphy. 3 A. K. Marsh. 472: Harper v. Harper, 85 Ky. 160; Beiding r. Smythe. 138 Mass. 530; Barnes r. Brown, 32 Mich. 146; Crawford r. Osmun, 70 Mich. 561: Peek r. Peck, 101 Mich. 394: Poston r. Balch. 69 Mo. 115: O'Conner v. Ward. 60 Miss. 1025; Hulhorst r. Seharner, 15 Neb. 57; Ford r. Harrington. 16 N. Y. 285: Bovd r. De la Montatrnio, 73 N. Y. 498: Place r. Hayward. 117 N. Y. -187. 495: Duval V. Wellman. 124 N. Y. 156; Pinkston v. BroA\'n, 3 .Tones Eq. 494; James v. Roberts, 18 Ohio, 548. Cp. Roman v. Mali, 42 Md. 513. 506 UNLAWFUL AGEEEMEXTS. or, in the case of an action to set aside the agreement, unless in the judgment of the Court the interests of third persons require that it should be set aside. 8. Conflict of laws. Wliere a difference of local laws is in question, the lawfulness of a contract is to be determined by the law govern- ing the substance of the contract (y). Exception 1. — An agreement entered into by a citizen in violation of a prohibitory law of his own state cannot in any case be enforced in any court of that state. Exception 2. — An agreement contrary to common principles of jus- tice or morality, or to the interests of the state, cannot in any way be enforced. What we here have to do with is in truth a fragment of a much larger sul)ject, namely, the consideration of the local law governing obligations in general (2). The main proposition is well established, and it would be idle to 388] attempt in this place any abridgment or restate*ment of what is said upon it by writers on Private International Law. The first exception is a simple one. The municipal laws of a particular state, especially laws of a prohibitory kind, are as a rule directed only to things done within its jurisdiction. But a particular law may posi- tively forbid the subjects of the state to undertake some particular class of transactions in any part of the world : and where such a law exists, the courts of that state must give effect to it. A foreigner cannot sue in an English court on a contract made with a British (y) According to the modern au- to acts to be done there" : Dicey, thorities (see especially Hamlyn J- op. cit. 572. [See also 9 Harv. L. Co. V. Talisker Distillery [1894] A. Rev. 371; 3 Beale, Cases on the Con- C. 202) the question is really by flict of Laws. 539 cf ser/.] what law the parties intended the iz) For the treatment of it in this contract to be governed: Dicev, Con- connexion, see Savigny. Syst. 8. 269 flict of Laws. 540. Tlie auxiliary —278 (§ 374 C.) ; Story, Conflict of rules for ascertaining that intention, Laws, §§ 243 sqq., 258 sqq. ; Dicey, and so fixing' the " proper law of th*^ op. cit. chaps. 24, 25. Mr. West- contract." which, however, are pre- lake, Priv. Intern. Law, 3rd ed. 259, sumptions, and not fixed rules of 260. states the rules thus: \yhere a law. are that " the proper law of a contract contemplated the violation contract is indeed prima facie the of English law, it cannot be enforced law of the coimtry where it is made here, notwithstanding that it may (lex loci contractus) ; yet when a have been valid by its proper law. contract is made in one country, but Where a contract conflicts with what is wholly or partially to be per- are deemed in England to be essen- formed in another, then great wei<;h1, tial pviblic or moral interests, it can- will be given to the law of the place not be enforced here, notwithstand- of performance (leoc loci solutionis) . ing that it may have been valid by as being probably the proper law of its proper law. the contract, in regard, at any rate, COXFLICT OF LAWS. 507 subject, and itself lawful at the place where it was made, if it is such that British subjects are forbidden by Act of Parliament to make it anywhere (a). It may be doubted whether such a contract would be recognized even by the courts of the state where it was made, unless the prohibition were of so hostile or restrictive a character as between the two states as not to fall within the ordinary principles of comity (e.g. if the rules of a people skilled in a particular industry should forbid them to exercise or teach that industry abroad). The authori- ties already cited (pp. *289, *290, above) as to marriages within the prohibited degrees contracted abroad by British subjects may also be usefully consulted as illustrating this topic. The second exception is by no means free from difficulties touch- ing its real meaning and extent (h). There is no means free from difficulties touching its real meaning and extent (h). There is no doubt that an agreement will not necessarily, though it will generally, be enforced if lawful according to its proper local law. The reasons for which the court may nevertheless refuse to enforce it have been variously expressed by judges and text-writers, and sometimes in very wide language.^^ (a) Santos v. IlUdge (1860) in which is void bv the law of England, Ex. Ch.. 8 C. B. N. S. at p. 874, 29 but valid by the law of the countiy X.. J. C. P. at p. 350, per Black- where the matter is transacted, is a laurn J. great question: " per Wilmot J. Roh- (h) "Whether an action can be inson v. Bland (1760) 2 Burr. 1083. supported in England on a contract 69 In Watson r. Murray. 23 N. J. Eq. 257, a bill by a partner in a lottery lirm against his copartners for an account was dismissed. Lotteries in New Jersey are declared common and public nuisances ; the sale of a ticket in a lottery, whether erected or opened in New Jersey or any other State, is a misde- meanor. The court said: "Putting the case in its best possible shape, and assuming that all the contracts and transactions involved in it occurred in States where they were toleratd by law, my opinion is that this court will not undertake to enforce or administer them." But see, on the other hand, Mcln- tyre v. Parks, 3 Met. 207: Commonwealth v. Bassford, 6 Hill, 526; Thatcher v. Morris, 11 N. Y. 437: Ornies v. Dauchy, 82 N. Y. 443. In Oscanyan r. Arms Co.. 103 U. S. 261, 277, the court denied any validity i;o a promise made in this country to compensate one officer of the Turkish government for improperly influencing the official action of another, even as- su7ning that by the law of Turkey such a contract would be lawful. "A contract, valid elsewhere, will not be enforced if it is condemned by positive law, or is inconsistent with the public policy of the country, the aid lof whose tribunals is invoked for the purpose of giving it effect." Union L. & E. Co. r. Railway Co.. 37 N. J. L. 23. 25. A contract " will not be enforced if it involves anything immoral, contrary to general policy, or violative of the conscience of the State called on to give it •effect."' Eubanks v. Banks. 34 Ga. 407. A contract, valid by the law governing it, by its terms excusing a carrier irom the consequences of its negligence was held enforceable in a State where such provisions are not allowed to be made in Fonseca v. Cunard S. S. Co., 508 UXLAAVFUL AGREEMENTS. 389] '^Transactions contrary to common principles of civilized nations not recognized. It may be taken for granted that the courts of a civilized state cannot give effect to rights alleged to be valid by some local law, but arising from a transaction plainly repugnant to the ius gentium in its proper sense — the principles of law and morality common to civil- ized nations. In other words a local law cannot be recognized, though otherwise it would be the proper law to look to, if it is in derogation of all civilized laws (c). This indeed seems a fundamental assump- tion in the administration of justice, in whatever forum and by what- ever procedure. Likewise it is clear that no court can be bound to enforce rights arising under a system of law so different from its own, and so unlike anything it is accustomed to, that not only its administrative means, but the legal conceptions which are the founda- tion of its procedure, and its legal habit of mind (d), so to speak, are (c) It has been laid down that con- U. S. 261, 277; and this not in the tracts to bribe or corruptly influence interest of tlie foreign government, officers of a foreign government — but for the sake of morality and the even if not prohibited by the law of dignity of law at home. that government — will not be en- (d) In German one might speak forced in tlie courts of the United without any strangeness of the States: Oscanyan v. Arms Co. 103 Rechtshewusstsein of the Court. 153 Mass. 553; ORegan r. Cunard S. S. Co.. 160 Mass. 356; Forepaugh v. Delaware R. Co., 12S Pa. 217; Fairchild v. Philadelphia R. Co., 148 Pa. .527 icp. Hughes V. Pennsylvania R. Co.. 202 Pa. 222). But see contra, The Guildhall. 58 Fed. Rep. 79: The Glenmavis, 69 Fed. Rep. 472: Chicago, &c. R. Co. r. Gardiner. 51 Xeb. 70. See also The Kensington, 183 U. S. 263. A gambling contract, though valid where made, was held not enforceable in another State where such contracts were illegal in Pope v. Hanke, 155 111. 617; Minzesheimer r. Doolittle. 60 X. J. Eq. 394: Gooch v. Faucett, 122 N. C. 270: Winward r. Lincoln. 23 R. I. 476; Gist r. Telegraph Co., 45 S. C. .344. An assignment in violation of the law or policy of the jurisdiction where the property is situated, it is everywhere agreed, will not be enforced there. Se- curity Trust Co. V. Dodd, 173 U. S. 624, 628: Barnett r. Kinney, 2 Idaho, 706 (see s. c. 147 U. S. 476) : To\\Tisend r. Coxe. 151 111. 62: Barth v. Iroquois Furnace Co.. 63 111. App. 323 : Whithed r. J. Walter Thompson Co.. 86 111. App. 70: Moore v. Church. 70 la. 208: Franzen v. Hutchinson, 94 la. 95: Ex parte Dickinson. 29 S. C. 453 : Ayres v. Desportes. 56 S. C. ."44. Compare, however, the following cases where preferential assignments were upheld, though prefer- ences were not allowed by the lex fori: Barnett r. Kinnev. 147 U. S. 476; Atherton v. Low, 20 Fed.' Rep. 804: Train v. Kendall, 137 Mass. 366; Frank r. Bobbitt, 155 Mass. 112; Moore f. Bonnell. 31 X. J. L. 90; Fuller v. Steig- litz. 27 Ohio St. 355. '• Xo people are bound or ought to enforce, or hold valid in their courts of justice, any contract which is injurious to their ptiblic rights, or offends their morals, or contravenes their policy, or violates a public law."' 2 Kent, 458. And see also Rousillon r. Rousilloii. 14 Ch. D. 351, 309; Clark v. Tanner, 100 Ky. 275; Roger v. Raines, 100 Ky. 295: Greenwood v. Curtis. 6 Mass. 358. 378: Mittenthal v. Mascagni, 1S3 Mass. 19. 22; Ivey v. Lalland. 42 Miss. 444; Lemonius r. Mayer. 71 Miss. 514; Smith v. Godfrey, 28 X. H. 379: Flagg v. Baldwin, 38 X. J. Eq. 219: Commonwealth r. Bassford. 6 Hill, 526; Bank of China v. Morse, 168 X. Y. 458; Kanaga v. Taylor, 7 Ohio St. 134, 142; Bank r. Davidson. IS Oreg. 57; Wight c. Riudskopf, 43 Wis. 344; Rose <;. Kimberly Co., 89 Wis. 545. CONFLICT OF LAWS. 509 wholly unfitted to deal with them.'^*^ For this reason tlie English Divorce Court cannot entt^rtain a suit founded on a Mormon marriage. Apart from the question whether such marriages would be regarded by our courts as immoral iure gentium (e), the matrimonial law of England is wholly inapplicable to polygamy, and the attempt to ap- ply it would lead to manifest absurdities (f).'''^ Practically these difficulties can hardly arise except as to rights derived from family relations. One can hardly imagine them in the proper region of contracts. Opposition to municipal principles of law not enough. Again, judicial ob- servations are to be found which go to the further extent of saying that no court will enforce *any thing contrary to the particular [390 views of justice, morality or policy whereon its own municipal juris- prudence is founded. And this doctrine is supported by the general acceptance of text-writers, which in this department of law must needs count for more than in any other, owing to its comparative poverty in decisive authorities.'^^ Contract for sale of slaves enforced in Santos v. lUidge. But a test ques- tion is to be found in the treatment of rights arising out of slavery (e) That is, among Western na- (/) Hyde v. Hyde d Woodinansee tions. The recognition of Hindu and (1SG6) L. K. 1 P. & D. 130, 35 L. J. Mahometan law in British India Mat. 57. stands vn wholly different ground. 70 In Hughes r. Klingender, 14 La. Ann. 845, it was held that a contract executed in England by which a ship was transferred to a trustee to secure the rights of a third person, the vendor retaining possession of the ship, could not be enforced in liOuisiana to defeat the rights acquired by an attachment under the laws of that State, having no analooy to any mode known to its law of affecting personal property for the security of debts. " The comity of nations extends only to enforce obligations, contracts, and rights under those provisions of the law of other countries which are analogous or similar to those of the State where the litigation arises." 71 As to poh'gamous or incestuous marriages, see United States v. Rodgers, 109 Fed. Rep.' 886 (see note 15 Harv. L. Rev. 315) ; Stevenson r. Gray, 17 B. Mon. 193. 208; Sutton v. Warren, 10 Met. 451; Commonwealth r. Lane, 113 Mass. 458, 463; Hutchins V. Kimmell, 31 Mich. 126, 1.34: True v. Ranney. 21 X. H. 52, 55 ; State v. Ross, 76 X. C. 242, 245-6 ; State v. Brown, 47 Ohio St 102. 109. 72 Supra, note 69, and infra, passim. In Hill r. Spear, 50 N. H. 253, which turned upon tlie right to recover the price of Ii((Uor sold in Xew York -where the sale of liquors is lawful, but with kno\\ledge on the part of the seller that they were bought for the purpose of an unlawful resale in New Hampshire, the court say, at p. 274 : " This court will and ouglit to be reluc- tant to enforce contract manifestly against public policy; but when the oublic policy of the country is not uniform, but different in neighboring localities, and variable in all, it would seem to be assuming rather too much to hold and insist that our notions of public policy are and must be infallible to tlie ex- clusion of the opinions and vicAvs of other enlightened communities, and the subversion of commercial comity." And see Swann V. Swann, 21 Fed. Rep. 299; Brown v. Browning, 15 R. L 422. 510 UNLAWFUL AGREEMENTS. by the courts of a free country : and for England at least the decision of the Exchequer Chamber in Santos v. lllidge (g) has given such an answer to it as makes the prevailing opinion of the books untenable. Slavery is as repugnant to the principles of English law as anything can well be which has been so far admitted by any other civilized system that any serious question of the conflict of laws could arise upon it. There is no doubt that neither the status of slavery nor any personal right of the master or duty of the slave incident thereto can exist in England (h), or within the protection of English law (i). But it long remained uncertain how an English court would deal with a contract concerning slaves which was lawful in the country where it was made and to be performed. Passing over earlier and indecisive authorities (Jc), we find Lord Mansfield assuming that a contract for the sale of a slave may be good here (I). On the other hand, Best J. thought no action " founded upon a right arising out of slaverv' " would be maintainable in the municipal courts of this country (m).'^^ In S'antos v. lllidge (g) a Brazilian sued an English firm trading in Brazil for the non-delivery of slaves under a contract for the 391 ] *sale of them in that country, which was valid by Brazilian law. The only question discussed was whether the sale was or was not under the circumstances made illegal by the operation of the statutes against slave trading: and in the result the majority of the Exchequer Cham- ber held that it was not. It was not even contended that at common law the Court must regard a contract for the sale of slaves as so repugnant to English principles of justice that, wherever made, it could not be enforced in England. Xor can it be suggested that the point was overlooked, for it appears to have been marked for argu- ment. Perhaps it is a matter for regret that it was not insisted upon^ and an express decision obtained upon it : but as it is. it now seems impossible to say that purely municipal views of right and wrong" (.9) (1860) 8 C. B. X. S. 861. 29 Forbes v. Cochrane (1824) 2 B. & C. L. J. C. P. 348. revg. s. c. in court 448, 26 R. R. 402. below, 6 C. B. X. S. 841, 28 L. J. C. (k) They are collected in Har- P. 317. grave's argument in Sommersett's^ (h) Sommersett's case (1771-2) 20 case. St. T. 1. (Z) 20 St. Tr. 70. it) Viz. on board an English ship (m) Forbes v. Cochrane (1S24) 2 of war on the high seas or in hostile B. & C. at p. 400, 26 R. R. 418. To occupation of territorial waters, same eflFect Storv. § 2.59. in spite of American authority being adverse. 73 See dissenting opinion of Sedgwick. .T.. in Greenwood v. Curtis. 6 Mass. 3.58. That an action will lie in a State where slavery never existed to recover the price of a slave in a sale made in a State where such sale was lawful, see Osborn r. Xicholson. 13 Wall. 054. 656. per Swa^■ne. ,T. : Roundtree r. Baker^ 52 111. 241; Commonwealth v. Aves, 18 Pick. 193,' 215, per Shaw, C. J, CONFLICT OF LAWS. 511 can prevail against the recognition of a foreign law. Moreover, apart from this decision, the cases in which the dicta relied upon for the wider doctrine have occurred have in fact heen almost always deter- mined on considerations of local law^ and in particular of the law of the place where the contract was to be performed. Earlier cases considered with reference to the general doctrine. Thus in Rohinson v. Bland (w) the plaintiff sued (1) upon a bill of ex- change drawn upon England to secure money won at play in France; (2) for money won at play in France: (3) for money lent for play at the same time and place. As to the bill, it was held to be an English bill; for the contract was to be performed by payment in England, and therefore to be governed by English law. For the money won, it could not have been recovered in a French court of justice (o), and so could not in any case be sued for here; but as to the money lent, the loan was lawful in France and therefore recoverable here.'^^ Wil- mot J. said that an action could be maintained in some coun- tries *by a courtesan for the price of her prostitution, but cer- [392 tainly would not be allowed in England, though the cause of action arose in one of those countries.'^^ Probably no such local law now exists. But if it did, and if it were attempted to enforce it in our courts, we could appeal, not to our own municipal notions of morality, but to the Eoman law as expressing the common and continuous un- derstanding of civilized nations. Such a bargain is immoral iure gentium. In Quarrier v. Colston {qY^ it was held that money lent by one English subject to another for gaming in a foreign country where such gaming was not unlawful might be recovered in England. This, as well as the foregoing case, is not inconsistent with the rule that the law of the place of performance is to be followed. It must be taken, no doubt, that the parties contemplated payment in England. Then, what says the law of England? Money lent for an unlawful use cannot be recovered. Then, was this money lent for an unlawful use? That must be determined by the law existing at the time and (n) (1760) 2 Burr. 1077. rlined to take notice of an extraor- (o) Nor. nndcr the circumstances, clinary and extra-lejral jurisdiction in the marshal's court of honour of that sort. which then pxisted : but it seems the (q) (1842) 1 Ph. 147. Court would in any case have de- 74 Scott r. Duffy, 14 Pa. 18. 75 Ace. per Chase. C. J., in De Sobry r. Dp Laistre. 2 H. & J. 191, 288; per Parsons, C. J., in Greenwood v. Curtis, 6 Mass. 358, 379. 7eSee also Sondheim v. Gilbert, 117 Ind. 71. 512 UNLAWFUL AGREEMENTS. l)lace at which the money was to be used in play. Tliat law not Ijeing shown to prohibit such a use of it, there was no unlawful purpose in the loan, and there was a good cause of action, not merely by the local law (which in fact was not before the Court) (r), but by the law of England. These cases do show, however, that the English law against gaming is not considered to be founded on such high and general principles of morality that it is to override all foreign laws, or that an English court is to presume gaming to be unlawful by a foreign law (s)J'^ 393] *In Hope V. Hope (t) an agreement mads between a husband and wife, British subjects domiciled in France, provided for two things which made the agreement void in an Englisn court: the collusive conduct of a divorce suit in England, and tlie abandonment by the husband of the custody of his children. It is worth noting that at the time of the suit the husband was resident in England, and it does not seem clear that he had not recovered an English domicil. Knight Bruce L.J. put his judgment partly on the ground that an important part at least of the provisions of the document was to be carried into effect in England. Turner L.J. did say in general terms that a contract must be consistent with the laws and policy of the country where it is sought to l)e enforced, and he appears to have thought the provision as to the custody of the children was one that an English court must absolutely refuse to enforce, whether to be performed in England or not, and whether by a domiciled British subject or not. But this is neither required by the decision nor recon- cilable with Santos v. Ulidge. In Grell v. Levy (u) an agreement was made in France between an English attorney and a French subject that the attorney should re- (r) The local la\y might conceiva- Xatur) — i.e. iinist be applied with- bly, without making gaming unlaw- out regard to local law by every ful, reduce debts for money lent at court within their allegiance, but are play to the rank of natural obliga- not to be regarded by any court out- tions or debts of honour not enforce- side it. Syst. 8. 276. The old usury able by legal process: if the view in laws were without doubt supposed to the text be correct, the existence of express the dictates of universal such a law would make no difference Christian moralitv. in the English court. (t) (1857) 8 D. M. & G. J31; per (.s) Contra Savigny, who thinks Knight Bruce L.J. at p. 740; per laws relating to usury and gaming Turner L.J. at p. 743. must be reckoned strictly compulsory (u) (1864) 16 C. B. N. S. 73. (von streng positiver, zwingender 7T Gambling contracts, though valid where made, were refused enforcement on account of the le.T fori in Pope r. Hanke, 1.55 111. 617 ; Minzesheimer v. Doolittle. 60 X. .T. Eq. 304: Gooch r. Faucett, 122 N. C. 270; Winward v. Lincoln, 23 R. I. 476 ; Gist v. Telegraph Co., 45 S. C. 344. CONFLICT OF LAWS. 513 cover a debt for the client in England and keep half of it. Our rules against champerty are not known to the French law: but here the agreement was to be performed in England b}^ an officer of an Eng- lish court (x).'^^ Perhaps, indeed, the English law governing the re- lations and mutual rights of solicitor and client may be regarded as a law of English procedure; and in that character, of course, private arrangements cannot acquire any greater power to vary it by being made abroad (y). *As to agreements against public interest of state. As for agree- [394 ments contrary to the public interests of the state in whose courts they are sued upon, it is obvious that the courts must refuse to enforce them without considering any foreign law. The like rule applies to the class of agreements in aid of hostilities against a friendly state of which we have already spoken. In practice, however, an agreement of this kind is more likely than not to be unlawful everywhere. Thus an agreement made in New York to raise a loan for insurgents in China would not be lawful in England ; but it would also not be lawful in JSTew York, and for the same reason. It might possibly happen on the other hand that the United States should recognize such in- surgents while they were not recognized by England; and in that case the courts of New York would regard the contract as lawful, but ours would not. It should be borne in mind that the foregoing discussion has noth- ing to do with the formal validity of contracts, which is governed by other rules (expressed in a general way by the maxim locus regit actum) ; and also that all rules as to the conflict of laws depend on practical assumptions as to the conduct to be expected at the hands of civilized legislatures and tribunals. It is in theory perfectly com- petent to the sovereign power in any particular state to impose any restrictions, however capricious and absurd, on the action of its own municipal courts ; and even to municipal courts, in the absence of any paramount directions, to pay as much or as little regard as they please to any foreign opinion or authority, (rr) Per Erie C.J. at p. 79. {y) See judgment of Williams J. TSSee Berrien r. McLane. 1 Hoff. Ch. 421. 427; Giddings v. Eastman, 1 Clarke, 19. A contract, assumed to be unlawful for champerty by the law of Connecticut, made in that State, to be performed in New York, where it was lawful, was held valid in the former State in Richardson r. Rowland, 40 Conn. 565. But see Bluckwell v. Webster, 29 Fed. Rep. 614. 33 514 UNLAWFUL AGREEMENTS. 9. Where performance becomes unlawful, contract dissolved. Wliere the performance of a contract lawful in its inception is made unlawful by any subsec^uent event, the contract is thereby dissolved (z).^^ 395] ^Explanation. — Where the performance is subsequently for- bidden by a foreign law, it is deemed to have become not unlawful but impossible (a). This rule does not call for any discussion. It is admitted as certain in Atkinson y. Ritchie (h), and is sufficiently illustrated by the modem case of Esposito v. Boivden (c), of which some account has already been given. It applies to negative as well as to affirmative promises^ " It would be absurd to suppose that an action should lie against par- ties for doing that which the legislature has said they shall be obliged to do" (d). To the qualification we shall have to return in the fol- lowing chapter on Impossibility. 10. Otherwise law at date of agreement governs. Otherwise the valid- ity of a contract is generally determined by the law as it existed at the date of the contract. This is a wider rule than those we have already stated, as it ap- plies to the form as well as to the substance of the contract, and not only to the question of legality but to the incidents of the contract generally (e). It is needless to seek authority to shoAV that an orig- inally lawful contract cannot become in itself unlawful by a subse- quent change in the law (f).^'^ Quaere when agreement made in ignorance of its illegality, and perform- ance afterwards becomes lawful. It does not seem certain, however, that the converse proposition would always hold good. Perhaps the par- (z) Atkinson v. Ritchie (1809) 10 (b) See note (z),ante. East, 530. 10 K. E. 372; Esposito v. (c) Ihid. Boicden (1857) 4 E. & B. 963, 24 (d) Wynn V. Shropshire Union L. J. Q. B. 210; in Ex. Ch. 7 E. & B. Rt/s. d Canal Co. (1850) 5 Ex. 420,. 763, 27 L. J. Q. B, 17, p. *319, supra. 440. (a) Barker v. Hodgson (1814) 3 (e) Sav. Svst. § 392 (8.435). M. & S. 267, 15 R. R. 485; Jacobs v. (f) See Boyce v. Tabb (1873) 1& Credit Lyonnais (1884) 12 Q. B. Div. Wallace (Sup. Ct. U. S.) 546, supra, 589, 53 L. J. Q. B. 156. p. *312. 79 Gates I'. Goodloe, 101 U. S. 612, 619-621; Gray v. Sims, 3 Wash. C. C. 276, 280; United States i: Dietrich, 126 Fed. Rep. 671; Chicago v. Railroad Co., 105 111. 73; Jamieson v. Indiana Gas Co., 128 Ind. 555; Brown v. Delano, 12 Mass. 370; Cordes r. Miller. 39 Mich. 581 (with this case last cited cp. David V. Ryan, 47 la. 642); Bradford v. Jenkins. 41 Miss. 328; Bullard v. Northern Pac. Rv. Co., 10 Mont. 168: Hillvard v. Mutual Benefit Ins. Co., 35 X. J. L. 415, 418, 422: Brick Presb. Church r. New York, 5 Cow. 538; Balti- more. &c. R. Co. r. O'Donnell. 49 Ohio St. 489. 80 Anheuser-Busch Co. r. Bond. 66 Fed. Rep. 653 (C. C. A.); Stephens r. Southern Pac. Rv. Co., 109 Cal. 86. CONFLICT OF LAWS IN TIME. 515 ties might be entitled to the benefit of a subsequent change in the law if their actual intention in making the contract was not unlaw- fui.81 The question may be put as follows on an imaginary case, which the facts of Waugh v. Morris (g) show to be quite within the bounds of possibility. A. and B. make *an agreement which by reason [396 of a state of things not known to them at the time is not lawful. That state of things ceases to exist before it comes to the knowledge of the parties, and before the agreement is performed, but A. refuses to per- form the agreement on the ground that it was unlawful when made. Is this agreement a contract on which B. can sue A. ? Justice and reason seem to call for an affirmative answer, and the analogy of Waugh v. Morris (/;), where the court looked to the actual knowledge and intention of the parties at the time of the contract, is also in its favour. Contract conditional on performance becoming lawful. Apart from this a contract which provides for something known to the parties to be not lawful at the time being done in the event, and only in the event, of its being made lawful, is free from objection and valid as a conditional contract (i) : unless, indeed, the thing were of such a kind that its becoming lawful could not be properly or seriously contemplated (Jc).^^ (g) (1873) L. R. 8 Q. B. 202, 42 Mai/or of Norwich v. ISiorfolk Ry. Co. L. J. Q. B. 57; supra, p. *378. (1855) 4 E. & B. 397, 24 L. J. Q. B. {h) Last note. 105, supra, p. *276. (I) Taylor v. Chichester d Mid- {k) Cp. D. 18. 1. de cont. empt. hurst Ry. Co. (1867) L. R. 4 H. L. 34 § 2 (Paiilus). Liberum horainern 628, 040', 645, 39 L. J. Ex. 217; cp. scientes emere non possumus; sed SI In Graham v. Chicago, &c. Ry. Co., 53 Wis. 473, 484, the court said: "The lawfulness of an act done depends upon the laws in force at the time it is done; and, if unlawful when done, it does not become lawful by a subsequent change of tlie law which renders such act lawful thereafter. Bailey r. Mogg, 4 Dcnio, 60; Roby r. West, 4 N. H. 285: Jaques v. Withy, 1 H. Bl. 65; Fletcher V. reck, 6 Cranch, 87; Conley r. Palmer. 2 N. Y. 182. " This court has enforced this rule to its full extent in cases of contracts void at the time they were made, under the Usury Law and the law prohibiting a party from recovering for liquor bills. Gorsuth v. Butterfield, 2 Wis. 237; Root i. Pinnev, 11 Wis. 84: Wood v. Lake. 13 \A'is. 84: Lee V. Peckham, 17 Wis. 3S3; Morton r. Rutherford. IS Wis. 298; Meiswinkle V. Jung, 30 WMs. 361: Austin r. Burgess, 36 Wis. 186."' The same doctrine was applied in Fulton r. Day. 63 AVis. 112, to the case of a note given after the repeal of the United States Bankruptcy Law of 1867 in lenewal of a note made void bv that statute. Cp. Hartford Fire Ins. Co. r. Cliicago. &c. Ry. Co., 62 Fed. Rep. 904. For other applications of the pvinciDle see Woods r. Armstrong. 54 Ala. 150; Mitchell r. Doffgett. 1 Fla. 356; Robinson ?•. Barrows. 4S :\le. 186; Webber v. Howe. 36 Mich. 150; Handv r. St. Paul Globe Co.. 41 Minn. 188; Anding t'. LcA^. 57 Miss. 51, 58; Nichols r. Poulson. 6 Ohio St. 305; Gilliland r. Phillips, 1 S." C. 1.52. 82 In Noice v. Brown, 38 N. J. L. 228; 39 N. J. L. 133, the defendant, being 516 UNLAWFUL AGREEMENTS. General results as to knowledge of parties. It may be useful to collect here in a separate form the results of the foregoing discussion, so far as they show in what circumstances and to what extent the knowledge of the parties is material on the question of illegality. a. If the immediate object of agreement be unlawful, the knowl- edge of either or both parties is immaterial (Z) : except, perhaps, 397] where the agreement is made in good faith and in *ignorance of a state of things making it unlawful : and in this case it is submitted for the reasons above given that the agreement becomes valid if that Btate of things ceases to exist in time for the agreement to be law- fully performed according to the original intention. /9 . A. makes an agreement with B. the execution of which would in- volve an unlawful act on B.'s part (e. g. a, breach of B.'s contract with C). If A, does not know this, there is a good contract, and A. can sue B. for a breach of it, though B. cannot be compelled to perform it or may be restrained (m) from performing it. We may say if we like that B. is deemed to warrant that he can lawfully perform his con- tract. The contract is voidable at A.'s option on the ground of fraud, if B. has falsely stated or actively concealed the facts, but not other- wise (n). nee talis emptio aut stipulatio ad- invalid by the local law, but executed mittenda est; cum servus erit, quam- the agreemeTit containing that clause vis dixerimus, futuras res emi posse ; for what it might be worth. Noth- nec enim fas est eiusmodi casus ex- ing decided in the case turned upon spectare. this rather curious state of facts. {I) A strong illustration of this (m) Jones v. North (1875) L. R. M-ill be found in Wilkinson v. Lou- 19 Eq. 426, 44 L. J. Ch. 388. donsack (1814) 3 M. & S. 117, 15 (n) Beachey v. Broion (1860) E. R. R. 438. In South African Brew- B. & E. 796, 29 L. J. Q. B. 105 ; but eries V. King [1899] 2 Ch. 173, 68 one can never be quite safe in draw- L. J. Ch. 530, in C. A. [1900] 1 Ch. ing any general conclusion from a 273, 69 L. J. Ch. 171, the parties decision on the contract to marry, were advised that a clause of their And cp. D. 18. 1. de cont. empt. 34 agreement was, or might be held, § 3. a married man, and living apart from his wife, and in expectation of a divorce from her by force of a bill then pending, promised the plaintiff to marry her in a reasonable time after such divorce should have been obtained. The con- tract was held void, and Beasley, C. J., said : " I cannot see the faintest semblance of legality in the promise here laid. It is wholly fallacious to suppose that a contract is not illegitimate if the KNOWLEDGE OF PARTIES. 517 If A. does know the facts, the agreement is void, )-. A. makes an agreement with B. who intends by means of the agreement or of something to be obtained or done under it to effect an unlawful or immoral purpose. If A. does not know of this purpose, there is a contract voidable at his option when he discovers it. If he does know of it, the agreement is void.^ act agreed to be done would not be illegal at the time of its contemplated per- formance. Such is not the law. A contract is totally void, if, when it is made, it is opposed to morality or public policy." See also Paddock v. Robinson, 63 111. 99; Leupert v. Shields, 60 Pac. Rep. 193 (Col. App.). Compare Brown v. Odill, 104 Tenn. 250. 83 See also supra, pp. 494, 496. il8 IMPOSSIBLE AGREEMENTS. 398] *CHAPTER VIII. Impossible Agreements. PAGE Performance of agreement may be impossible in itself, by law, or in fact (i. e., by reason of particular state of facts), General statement of law, Agreement impossible in itself is void. Practical impossibility, Logical impossibility, Impossibility merely relative to promisor no excuse, Agreements impossible in law. Performance becoming impossible by law. Buying one's own property, Impossibility in fact no excuse where contract absolute, Performance forbidden by for- eign law, Obligation to pay rent when premises accidentally de- stroyed, Exceptions in cases of events not contemplated by the contract, 534 Performance dependent on spe- cific thing existing, Applehy V. Meyers. Impossibility at date of contract from existing state of things not known to the parties, 518 520 520 522 522 523 524 525 526 530 530 536 537 539 PAGE Sale of cargo already lost: Cou- turier V. Hastie, Covenants to work mines, etc., Clifford V. Watts, Construction of express excep- tions in certain contracts. Performance dependent on life or health of promisor, Robinson V. Davison, Anomalous decision on contract to marry in Hall V. Wright, Limits of rule as to personal ser- vices, Rights already acquired under contract not discharged by sub- sequent impossibility. Substituted contracts. Impossibility by default of either party : such default of prom- isor is equivalent to breach of contract, Default of promisee discharges promisor, Alternative contracts where one alternative is or becomes im- possible, Conditional contracts. Impossible conditions in bonds : peculiar treatment of them, Indian Contract Act on impos- sible agreements. 540 541 542 543 544 546 547 548 549 549 540 552 554 555 553 Performance of agreement may be impossible in itself. An agreement may be impossible of performance at tlie time when it is made, and this in various ways. It may be impossible in itself; that is, the agreement itself may involve a contradiction, as if it contains promises inconsistent with one another or with the date of the agreement. Or the thing con- tracted for may be contrary to the course of nature, " quod natura fieri non concedit" (a). As if a man should undertake to make a river run up hill ; to make two spheres of the same substance, but one twice the size of the other, of which the greater should fall twice as fast as the smaller when (rt) D. 45. 1. de V. o. 35 pr. IMPOSSIBLE AGREEMENTS. 519 they were both dropped from a height; or to construct a perpetual motion (h). It may be impossible by law. It may be impossible by law, as being inconsistent with some legal principle or institution. As in the cases already considered in Chap. V. of attempts to enable a stranger to a contract to sue upon it by agreement of the parties; or as if a man should give a bond to secure a simple con- tract with a collateral agreement that the simple contract debt should not be merged (c), or should covenant to create a new manor. * Again it is the general rule of law that a man may contract for [399 the sale of a specific thing which is not his own at the time. But if the thing be already the buyer's own, or cannot be the subject of private ownership at all (as the site of a public building, the Crown Jewels, a ship in the Eoyal Navy) (d), the agreement is impossible in law. Or in fact. It may be impossible in fact by reason of the existence of a particular state of things which makes the performance of the particular contract impossible. As where the contract is to go to a certain island and there load a full cargo of guano, but there is not •enough guano there to make a cargo (c) : or a lessee covenants to dig not less than 1.000 tons of a certain kind of clay on the land demised in every year of the term, but there is no such clay on the land (f). Or may become impossible in law or in fact — According to modern author- ities the rules are rules of construction. Moreover the performance of a contract which was possible in its inception may become impossible in either the second or third of these ways. The strong and concur- rent tendency of the modern authorities is to avoid laying down abso- lute rules in any case, and to give effect as far as possible to the real intention of the parties — in other words, to treat the subject as one to be governed by rules of construction rather than by rules of law. As evidence of intention in such matters is very seldom forthcoming, the Court has to fall back on its own view of what reasonable men (b) Of these particular impossi- (d) In Roman law "quorum com- bilities the second was supposed to mercium non sit, ut publica quae be an elementary fact before Galileo non in pecunia populi sed in publico made the experiment; the last con- usu habeantur, ut est Campus tinues to be now and then attempted Martins." D. 18. 1. de cont. empt. 6 by persons who know mechanical pr. handicraft without mechanical prin- (e) Hills v. Sughrue (1846) 15 M. oiples: we choose the examples as all & W. 253. the more instructive on that account. (f) Clifford v. Watts (1870) L. R. (c) See Owen V. Homan (1851) 3 5 C. P. 577, 40 L. J. C. P. 36. Mac. & G. 378, 407-411. 520 IMPOSSIBLE AGREEMENTS. would intend if tliey had thought of the contingency. Still actual intention will prevail if and so far as it can be ascertained. Before proceeding to details we ma}' give an outline of the results. 1. General statement. An agreement is void if the performance of it is either impossible in itself or impossible by law. 400] *\Vhen the performance of an agreement becomes impossible by law, the agreement becomes void. 2. An agreement is not void merely by reason of the performance being impossible in fact, nor docs it become void by the performance becoming impossible in fact without the default of either party, un- less according to the true intention of the parties the agreement was conditional on its performance being or continuing possible in fact. Such an intention is presumed where the performance depends on the existence of a specific thing, or on the life or health of a party who undertakes personal services by the contract. 3. If the performance of any promise becomes impossible in fact by the default of the promisee, the promisor is discharged, and the promisee is liable to him under the contract for any loss thereby resulting to him. If it becomes impossible by the default of the promisor, the promisor is liable under the contract for the non-performance. 1. Agreement impossible in itself is void for lack of animus contrahendi. On the first and simplest rule — that an agreement impossible in itself is void — there is little or no direct authority, for the plain reason that such agreements do not occur in practice; but it is always as- sumed to be so. Strictly this is not an absolute rule of law, but rests on the ground that the impossible nature of the promise shows that there was no real intention of contracting and therefore no real agreement. Brett J. said in Clifford v. Watts (g) : "1 think it is not competent to a defendant to say that there is no binding con- tract, merely because he has engaged to do something which is physically impossible. I think it will be found in all the cases where that has been said, that the thing stipulated for was, according to the state of knowledge of the day, so absurd that the parties cannot be 401 ] supposed to have so contracted." The *same view is also dis- tinctly given in the Digest (/(). It seems to follow then that the ig) (1870) L. R. 5 C. P. p. 558. consensu agitur, omnium voluntas (ft) D. 44 7. de obi. et act. 31. spectetur; quorum procul dubio in Non solum stipulationes . . sed huiusmodi actu talis cogitatio est, etiam ceteri quoque contractus . . ut nihil agi existiment apposita ea impossibili condicione interposita condicione quam sciant esse impos- aeque nullius momenti sunt, quia sibilem. in ea re, quae ex duorum pluriumve ABSOLUTE i:MrOSPIBILITY. 521 question is not whether a thing is absolutely impossible (a question not always without difficulty), but whether it is such that reasonable men in the position of the parties must treat it as impossible (i). A thing is not impossible because not known to be possible. On the other hand a thing is not to be deemed impossible merely because it has never yet been done, or is not known to be possible. " Cases may be conceived," says Willes J. in the case last cited, " in which a man may undertake to do that which turns out to be impossible, and yet he may still be boimd by his agreement. I am not prepared to say that there may not be cases in which a man may have contracted to do something which in the present state of scientific knowledge may be utterly impossible, and yet he may have so contracted as to war- rant the possibility of its performance by means of some new dis- covery, or be liable in damages for the non-performance, and cannot set up by way of defence that the thing was impossible." Indeed many things have become possible which were long supposed to be impos- sible; and this not only in the well-known instances of mechanical invention and the applications of scientific discovery to the arts of life, but in the regions of pure science and mathematics. Formerly it seemed impossible that we should ever have direct evidence of the physical constitution of the sun and fixed stars: we now have much. In the earlier edition *of this book the case of an agreement [402 to make a practicable flying machine was propounded with some diffidence. At this day no one would doubt that, whether prudent or not, such an agreement might be binding. In testing the seriousness and validity of an agreement by the presumed intention of the parties, we must remember that they are also presumed to have the ordinary knowledge of reasonable men. Thus the Indian Contract Act (s. 56, illust. a), says that an agree- ment to discover treasure by magic is void, notwithstanding that in some regions at least of British India the parties might really believe in the efficacy of magic for the purpose. If a promisee believes in the possibility of the performance nominally promised, and the prom- isor does not, the case will generally be reduced to one of fraud. (i) In Thornboroio v. Whitacre to the defendant's ability." thouoli (1706) 2 Ld. Raym. 1164, a promise it was urged for the defendant that to deliver two grains of rye on a " all the rye in tlie world was not so certain Monday, and four, eight, six- much." No judgment was given, the teen, &e., on alternate Mondays fol- case being settled. The point that lowing for a year, was said by Holt the parties could not have been in to be " only impossible with respect earnest was not made. -522 IMPOSSIBLE AGREEMENTS. "Practical impossibility," i. e. extreme cost or difficulty, not material. If a man may bind himself to do something which is only not known to be impossible, much more can he bind himself to do something which is known to be possible, however expensive and troublesome. For some purposes practical impossibility may be treated as equiva- lent to absolute impossibility: a ship is said to be totally lost when it is in this sense practically impossible, though not physically impos- sible, to repair her (Jc). But this does not apply to the matter now in hand (l).^ Logical impossibility — Repugnancy between different parts of instrument. The other conceivable cases of absolute impossibility may be very briefly dismissed. Inconsistent or, in the usual technical phrase, re- pugnant promises contained in the same instrument cannot of course bfc enforced : this however is rather a case of failure of that certainty which, as we saw in the first chapter, is one of the primary conditions for the formation of a contract. There may also be a repugnancy -403] as to date, as if a man promises to do a thing *on a day already past. Practically, however, such a repugnancy can hardly be more than apparent. Either it is a mere clerical or verbal error, in which -case the Court may correct it by the context (m),^ or it arises from the terms of the agreement being fixed before and with reference to a certain time but not reduced into writing and executed as a written contract till afterwards. In such a case it must be deter- mined on the circumstances and construction of the contract whether the stipulation as to time is to be treated as having ceased to be part of the contract (in other words, as having been left in the statement of the contract by a common mistake), or as still capable of giving (k) Moss v. Smith (1850) 9 C. B. E. & B. 238, 24 L. J. Q. B. 293, 94, 103, 19 L. J. C. P. 225. where a note payable two months (I) See per Mellor J., L. R. 6 Q. after date, and made in January, B. 123, per Hannen J. ib. 127. These 1855, was dated by mistake 1854, but dicta seem to go even beyond what is across it was written " due the 4th said in the text, but are probably March, 1855.'' The Court held that limited in their true effect to what is this sufficiently corrected the mis- here called impossibility in fact. take, and might be taken as a direc- (m) See Fitch v. Jones (1855) 5 tion to read 5 for 4. 1 A contract to sell salmon packed in Alaska, the fish to be " exactly like Puget Sound fancy Sockeye " is not void as stipulating for the impossible, though, so far as known fish of that sort are not found in Alaska at the present time; for the country is known to be still unexplored, and if such fish are not there, they may be caught elsewhere and packed in Alaska. Reid r. Alaska Packing Co., 43 Oreg. 429. See also Bennett v. Morse, 6 Col. App. 122; Beebe v. Johnson. 19 Wend. 500; Anderson V. Adams, 43 Oreg. 621 ; Strat- ford Gas Co. r. Stratford, 26 Ont. App. 109. 2 Or rectify the contract so that it shall express the intention of the parties. Cameron r. White, 74 Wis. 425. RELATIVE IMPOSSIBILITY. 523 an independent right of action. At all events it cannot be treated a.s a condition precedent so as to prevent the rest of the contract from being enforced (n).^ Promisor not excused by relative impossibility, i. e. not having the means of performance. Leaving, however, tliis rather barren discussion, we come to a qualification, or rather explanation of more practical import- ance, which follows a fortiori from the principle laid down by Willes J. Difficulty, inconvenience, or impracticability arising out of circumstances merely relative to the promisor will not excuse him. *■ Impossibility may consist either in the nature of the action in itself, or in the particular circumstances of the promisor. It is only the first or objective kind of impossibility that is recognized as such by law. The second, or subjective kind, cannot be relied on by the promisor for any purpose, and does not release him from the ordinary consequences of a wilful non-performance of his contract. On this last point the most obvious example is that of the debtor who owes a sum certain, but has neither money nor credit. There is plenty of money in the world, and it is a matter *wholly personal to the [404 debtor if he cannot get the money he has bound himself to pay '' (o).* One may warrant acts of third persons, or natural event in itself possible. Therefore a man is not excused who chooses to make himself answer- able for the acts or conduct of third persons, though beyond his con- trol; or even, it seems, for a contingent event in itself possible and ordinary but beyond the control of man. It has been said that a covenant that it shall rain to-morrow might be good (p), and that *' if a man is bound to another in 201. on condition quod pluvia debet pluere eras, there si pluvia non pluit eras the obligor shall forfeit the bond, though there was no default on his part, for he knew not that it would not rain. In like manner if a man is bound to me on con- (w) Hall V. Cazenove (1804) 4 (1855) 15 C. B. at p. 619, 24 L. J. East, 477, 7 R. R. 611, where the C. P. at p. 106. Per Cur. Baily v. Court agreed to this extent, but dif- De Crespigny (1869) L. R. 4 Q. B. fered on the other question. at p. 185. But qu. would not such a (o) Saviffny. Obi. 1. .384. contract be a mere wager in almost (p) By Maule J. Canham v. Barry any conceivable circumstances? 3 See Stratford Gas Co. v. Stratford, 26 Ont. App. 109. 4 So the destruction or injury of a vendor's factory does not excuse per- formance of a contract to deliver goods at a stated time, if the contract did not require the goods to be manufactured in that factorv. Jones v. United States, 96 U. S. 24: Summers r. Hibbard, 153 111. 102- Booth r. Spuyten Du.\^il Mill Co., 60 X. Y. 487. Nor is an agreement to ship goods within a reasonable time excused by the inability of the promisor to get shipping facili- ties owing to discrimination against him. Eppens r. Littlejohn, 164 N. Y. .187. See also Railroad Co. i\ Reichert. 58 Md. 261, 274. 624 IMPOSSIBLE AGREEMENTS. dition that the Pope shall be here at Westminster to-morrow, then if the Pope comes not there is no default on the defendant's part, and jet he has forfeited the obligation" (q). " Generally if a condition. i& to be performed by a stranger and he refuses, the bond is forfeit, for the obligor took upon himself that the stranger should do it " (r). " If the condition be that the obligor shall ride with I. S. to Dover such a day, and I. S. does not go thither that day; in this case it seems the condition is broken, and tliat he must procure I. S. to go thither and ride with him at his peril" (s). Where the condition of a bond was to give such a release as by the Court should be thought meet, it was held to be the obligor's duty to procure the judge to devise and direct it (^). If a lessee agrees absolutely to assign his lease, the lease containing a covenant not to assign without licence, the contract is binding and he must procure the lessors consent (u). 405 ] But *on the sale of shares in a company, on the Stocl: Exchange at all events, the vendor is not bound to procure the directors' assent, though it may be required to complete the transfer (x), and it seems at least doubtful whether he is bound in any case (y). Agreement impossible in law is void. Where an agreement is impos- sible by law there is no doubt that it is void :^ for example, a promise by a servant to discharge a debt due to his master is void, and there- fore no consideration for a reciprocal promise (z) ; though, by the rule last stated, a promise to procure his master to discharge it would (in the absence of any fraudulent intention against the master) be good and binding. And when the performance of a contract becomes wholly or in part impossible by law, the contract is to that extent discharged.^ iq) Per Brian C.J. Mich. 22 Ed. J. C. P. 100. [Cp. Beebe V. Johnson, IV. 26. The whole discussion there 19 Wend. .500.] is curious, and well worth perusal (x) Htray V. Russell (1859) Q. B. in the book at large. Note Brian's & Ex. Ch. 1 E. & E. 888. 916, 28 L. J. change of opinion as to the plea in Q. B. 279. 29 L. J. Q. B. 115. the case at bar. ad fin. (y) Lindlev on Companies, 491. (r) Ro. Ab. 1. 4.52, L. pi. 6. (z) Harvey V. Gibbons (1674) 2 (s) Shepp. Touchst. 392. Lev. 161. It is called an illegal con- (/) Lnmh's case, 5 Co. Eep. 23 i. sideration, but such verbal con- (u) Lloyd V. Crispe (1813) 5 fusions are constant in the early re- Taunt. 249. 14 R. R. 744: cp. Canham ports. V. Barry (1855) 15 C. B. 597, 24 L. 5 Stevens r. Coon, 1 Pinnev (Wis.). 356. 6 Avery v. Bowden, 5 E. & B. 714; Reid r. Hoskins, 5 E. & B. 729; Commis- sioners V. Young, 59 Fed. Rep. 96, 108; Knox t\ Childersburg Land Co.. 86 Ala. 180: Dunham r. New Britain. 55 Conn. 378; Scovill v. :McMahon. 62 Conn. 378: Kuhn r. Freeman. 15 Kan. 423; Gammon v. Blaisdell, 45 Kan. 221; Theo- bald V. Burleigh, 66 N. H. 574 ; Brick Church v. New York, 5 Cow. 538 ; Kaiser IMPOSSIBILITY IX LAW. 525 When performance becomes impossible by law, promisor is excused — Baily V. De Crespigny. A good instance of this is Baily v. De Crespigny {a). There a lessor covenanted with the lessee that neither he nor his heirs nor his assigns would allow any building (with certain small excep- tions) on a piece of land of the lessor's fronting the demised prem- ises. Afterwards a railway company purchased this piece of land under the compulsory powers of an Act of Parliament, and built a station upon it. The lessee sued the lessor upon his covenant; but the Court held that he was discharged by the subsequent Act of rarliament, which put it out of his power to perform it. And this was agreeable to the true intention, for the railway company coming in under compulsory powers, " whom he [the covenantor] could not bind by any stipulation, as he could an assignee chosen by himself," was " a new kind of assign, such as was not in the contemplation of the parties when the contract was *entered into." Nor was it [406 material that the company was only empowered by Parliament, not required, to build a station at that particular place {h)? As the American phrase concisely puts it, a covenant of warranty does not extend to the State in the exercise of its eminent domain (c). If a subsequent Act of Parliament making the performance of a contract impossible were a private Act obtained by the contracting party him- self, he might perhaps remain bound by his contract as if he had made (a) (1869) L. R. 4 Q. B. 180, 38 (c) See Osborn v. ^^icholson L. J. Q. B. 98. (1871) 13 Wall, at p. 657. (b) (1869) L. R. 4 Q. B. 186. V. Richardson, 5 Daly, 301; Jones v. Judd, 4 X. Y. 412; Burkhardt v. Georgia School Township, 9 S. Dak. 315. Compare Klauber v. Street Ry. Co., 95 Cal, 353; Newport News Co. v. McDonald Brick Co.'s Assignee, 59 S. W. Rep. 332 (Ky.) ; Baker v. Johnson, 42 N. Y. 126. A provision in a contract of insurance that no action shall be maintain- able on it unless begun within twelve months next after the occurrence of the loss does not, in case of war between the countries of the contracting parties, operate like a Statute of Limitations, by letting the term open and expand it- self, so as to receive within it the term of legal disability created by the war, and then close together at each end of that period, so as to complete itself, as though the war had never occurred, but having become impossible of perform- ance by law. is wholly discharged. Semmes v. Insurance Co.. 13 Wall. 158. " Where, by the terms of a contract for work and labor, the full price is not to be paid until the work is completed, and a complete performance becomes impossible by act of the law, the contractor may recover for the work actually done at the full prices agreed upon." Jones r. Judd, 4 N. Y. 411. To discharge the contract the law must make performance impossible, not merely more expensive or burdensome. Baker t'. Johnson, 42 N. Y. 126. Where the law prevents performance of a contract for a limited time only the obligation of the contract is suspended but not discharged. Sherman Countv V. Howard, 98 N. W. Rep. 666 f Neb. ) . 7 Kuhn V. Freeman, 15 Kan. 423; Gammon v. Blaisdell, 45 Kan. 221; Hitch- cock V. Bacon, 118 Pa. 272. 526 IMPOSSIBLE AGREEMENTS, iJie performance impossible by his own act^ (of which afterwards) : but where the Act is a public one, its effect in discharging the contract cannot be altered by showing that it was passed at the instance of the party originally bound (d).^ Buying one's own property. The case of a man agreeing to buy that which is already his own is a peculiar one. Here the performance is impossible in law; and the agreement may be regarded as void not only for impossibility but for want of consideration. But this class of cases is by its nature strictly limited. No man will knowingly pay for what belongs to him already. If on the other hand the parties are in doubt or at variance as to what their rights are, any settlement which they come to in good faith, whatever its form, has the char- acter of a compromise. There remain only the cases in which the parties act under a common mistake as to their respective rights. Tl:ie presence of the mistaken assumption is the central point on which the whole transaction turns, and is decisive in fixing its true nature. Hence it is the most conspicuous element in practice, and these cases are treated as belonging not to the head of Impossibility but to that of Mistake. Under that head we recur to them in the next chapter. It is hardly needful to add that a contract for the 4-07] sale of some*thing which the seller has not at the time is per- fectly good if the thing is capable of private ownership. The effect of the contract is that he binds himself to acquire a lawful title to it by the time appointed for completing the contract. Exposition of same principles in Roman law. The general principles above considered are well brought together in the Digest, in a pas- sage from a work of Yenuleius (e) on Stipulations. ""' Illud inspicien- dum est, an qui centum dari promisit confestim teneatur, an vera cesset obligatio donee pecuniam conficere (f) possit. Quid ergo si Id) Broicn v. Mayor of London (e) See Roby's Introduction, p. (18G1) n C. B. N. S. 726, 30 L. J. clxxxiii. C. P. 225. in Ex. Ch. 13 C. B. N. S. (/) Mommsen's correction for 828, 31 L. J. C. P. 280. jonferre, which would mean "pay" or " contribute," not " procure." 8 So decided in Ke Companies' Acts, 117 L. T. 60. 9 " The corporation of the city of New York conveyed lands for the purposes of a church and cemetery, with a covenant for quiet enjojTnent; and after- wards, pursuant to a power granted by tlie Legislature, passed a by-law prohib- iting the use of these lands as a cemetery. Held, that this was not a breach of the covenant which entitled to damages, but it was a repeal of the covenant."' Brick Presb. Church v. New York, .5 Cow. 538. See also Board of Commission- ers r. Youns:. 59 Fed. Rep. 96. 108; Dunham V. New Britain, 55 Conn. 378; Scovill r. Mc:\Iahon, 62 Conn. 378. Interference by writ sued out by a private litigant does not create impossi- bility caused by operation of law, Klauber v. Street Ry, Co., 95 Cal. 353. IMPOSSIBILITY IN LAW. 527 neque domi habet neque inveniat creditorem ? Sed haec recedunt ab impedimento natural! et respiciunt ad facultatem dandi (g). . . . Et generaliter causa difficultatis ad incommodum promissoris, non ad impedimentum stipulatoris pertinet [i.e. inconvenience short of impos- sibility is no answer]. . . . Si ab eo stipulatus sim, qui efficere non possit, cum alii possibile sit, iure factam obligationem Sabinus scribit." He goes on to say that a legal impossibility, e.g. the sale of a public building, is equivalent to a natural impossibility. . . . ' Nee ad rem pertinet quod ius mutari potest et id quod nunc im- possibile est postea possibile fieri ; non enim secundum futuri temporis ius sed secundum praesentis aestimari debet stipulatio " (h) : (as if it should be contended that a covenant to create a new manor is not a covenant for a legal impossibility, because peradventure the statute of Quia emptores may be repealed.) All this is in exact accordance with English law. 2. Performance impossible in fact: no excuse where contract is absolute. We now come to the cases where the performance of an agreement is not impossible in its own nature, but ^impossible in fact by [408 reason of the particular circumstances. It is a rule admitted by all the authorities, and supported by positive decisions, that impossibil- ity of this kind is in itself no excuse for the failure to perform an. unconditional (i) contract, whether it exists at the date of the contract, or arises from events which happen afterwards (Jc). Thus an abso- lute contract to load a full cargo of guano at a certain island was not discharged by there not being enough guano there to make a cargo (l) : and where a charter-party required a ship to be loaded with usual despatch, it was held to be no answer to an action for delay in loading that a frost had stopped the navigation of the canal by which the cargo would have been brought to the ship in the ordinary course (m). ig) For the explanation of a not on the unusual incident of the char- very clear illustration which follows ter-party providing that the cargo here, and is omitted in our text, see was to be found by the owner. " He Sav. Obi. 1. 385. is to receive freight at a high rate, (h) D. 45. 1. de v. o. 137. ?§ 4-6. and it looks very much like a con- (i) It may be sho^^•n, and not tract for supplying guano at that necessarily by the presence of ex- price:" Parke B. at p. 261. And see press saving words, that the fact or Anson, 330, 331. event was outside the risks under- (m) Kearon v. Pearson (18G1) 7 taken by the promisor: in other H. & N. 386, 31 L. J. Ex. 1. So words that the contract was not un- where a given number of days is conditional. allowed to the charterer for unload- (k) Atkinson v. Rifcfiie (1809) 10 ing, he is held to take the risk of East. 530. 10 Pv. E. 372. any ordinary vicissitudes which may (/) nUls V. SuQhrue (1846) 15 M. cause delav: Thiis v. Byers (1876) & W. 253. This case turned in part 1 Q. B. D.' 244, 45 L. J. Q. B. 511. 528 IMPOSSIBLE AGREEMENTS. Still less will unexpected difficulty or inconvenience short of impos- sibility serve as an excuse.^** A fortiori where only inconvenient or impracticable. Where insured premises were damaged by fire and the insurance company, having an 10 The Harriman, 9 Wall. 161; Jones v. United States, 96 U. S. 24, 29; Rail- way Co. V. Hoyt, 149 U. S. 1, 14; Railway Co. v. Hooper, 160 U. S. 514; United States V. Gleason, 175 U. S. 588, 602; Lumberman's Co. v. Gilchrist, 55 Fed. Rep. 677; Robeon v. Mississippi Logging Co., 61 Fed. Rep. 889, 69 Fed. Rep. 773; Merriwether r. Lowndes Co., 89 Ala. 362; Klauber v. Street Ry. Co., 95 Cal. 353; Bacon v. Cobb, 45 111. 47; Summers v. Hibbard, 153 111. 102; Wernli r. Collins, 87 In. 548; Jackson v. Creswell, 94 la. 713; Bates Alachine Co. r. Norton Iron ^Yorks, 68 S. W. Rep. 423 (Ky.) ; Adams r. Nichols, 19 Pick. 275; Bank r. Burt, 5 Allen, 113: Nical v. Fitch, 115 Mich. 15; Anderson r. May, 50 ^ilinn. 280; Harrison r. Railway Co., 74 Mo. 364; Knapman Whiting Co. V. Middlesex Water Co., 64 X. J. L.' 240; Harmony v. Bingham, 12 X. Y. 99; Booth v. Spm-ten Duyvil Co., 60 X. ¥.487; Ward v. Hudson River Bg. Co., 125 X. Y. 230; Hanthorn v. Quinn, 42 Oreg. 1 : Hand V. Baynes, 4 Whart. 204; Du Bois r. Water Works Co., 176 Pa. 430; Eddy r. Clement. 38 Vt. 486. Where one contracts to build a house on the land of another, and perform- ance becomes impracticable, either by reason of a latent defect in the soil, or, the contract being to finish and deliver the house by a day named, by reason of the accidental destruction of the building shortly before that day, he is not excused from performance; and performance not being excused he cannot re- tain iiistalhuents paid on account. Tompkins v. Dudlev, 25 X.Y. 272; Dermott V. Jones, 2 Wall. 1 ; Autcliff r. McAnallv, 88 Ala. 507*; Green v. Wells, 2 Cal. 584; Clark v. Collier, 100 Cal. 256; School District r. Dauchy, 25 Conn. 530; Parker r. Scott, 82 la. 266; Stees v. Leonard, 20 Minn. 494; Havnes v. Second Baptist Church, 88 Mo. 285; Leavitt r. Dover, 67 X. H. 91; Trustees v. Ben- nett, 3 Dutch. 513; Lawing v. Rintles, 97 X. C. 380; Galyon v. Ketchen, 85 Tenn. 55; Burke v. Purifov. 21 Tex. Civ. App. 202. See also Brown v. Royal Ins. Co., 1 E. & E. 853; Simpson r. United States, 172 U. S. 372; Schliess v. Grand Rapids, 131 Mich. 52; Hanthorn r. Quinn, 42 Oreg. 1; Filbert r. Philadelphia, 181 Pa. 530; Harlow v. Homestead, 194 Pa. 57. As to whether accidental calamitv excuses delav in completing a building, see Phoenix Bridge Co. r. United States. 38 Ct. CI. 492; Cannon v. Hunt. 113 Ga. 501 : Cochran r. People's Rv. Co., 131 ?tIo. 607; Ward v. Hudson River Build- ing Co., 1 Silvernail (X. Y.i, 341; Reiehenbach v. Sage, 13 Wash. 364; Bentley V. State, 73 Wis. 416. In Dermott v. Jones, 2 Wall. I, Jones had covenanted for the erection and complete finishing for use and occupation, by a day fixed, of a hotise upon the land of ?tliss Dermott. Owing to a latent defect in the soil, causing the foimda- tion to sink, he failed to make part of the building fit for use and occupation, ^liss Dermott was compelled to take that part do\^Ti, renew the foundation with artificial floats, and rebuild. The court held that while the builder was not ex- cused from performance, he might recover in indehitafus assumpsit, the owner having accepted the work, but that the latter was entitled to recoup for the damages sustained by the plaintiffs deviations from the contract, both (js to the manner and time of performance. In Butterfield r. Byron. 153 Mass. 517, it appeared that the plaintiff was to do the grading, excavating, stone work, brick work, painting, and plumbing for a frame hotel and the defendant was to do tlie remainder of the work of build- ing. When almost completed the building was struck by lightning. The court held that the defendant was entitled to recover for the value of the work which he had done and the plaintiff to recover hack any payments he had made. Neither partv could recover damages for the non-completion of the hotel. Cp. Chapman v. Beltz Co.. 48 W. Va.'l: Vofft v. Hecker, 118 Wis. 306. See also Krause r. Crothersville. 162 Tnd. 273. 65 L. R. A. Ill; Weis V. Devlin, 67 Tex. 507; Cook f. McCabe, 53 Wis. 250. PRACTICAL IMPOSSIBILITY. 529 ■option to pay in money or reinstate the building, elected to reinstate, but before they had done so the whole was pulled down by the author- ity of the Commissioners of Sewers as being in a dangerous condi- tion; it was held that the company were bound by their election, and the performance of the contract as they had elected to perform it was not excused (n).^^ So again if a man contracts to do *work according to orders or specifications given or to be given [409 by the other contracting party, he is bound by his contract, although it may turn out not to be practicable to do the work in the time or manner prescribed. In Jones v. St. John's College {Oxford) (o) the plaintiffs contracted to erect certain farm buildings according to plans and specifications furnished to them, together with any altera- tions or additions within specific limits which the defendants might prescribe, and subject to penalties if the work were not finished within a certain time. And they expressly agreed that alterations and additions were to be completed on the same conditions and in the same time as the works under the original contract, unless an extension of time were specially allowed. It was held that the plaintiffs, having contracted in such terms, could not avoid the penalties for non-completion by showing that the delay arose from alterations being ordered by the defendants which were so mixed up with the original work that it became impossible to complete the whole within the specified time (p). In Thorn v. Mayor of Lon- don (q) a contractor undertook to execute works according to speci- fications prepared by the engineer of the corporation. It turned out that an important part of the w^orks could not be executed in the manner therein described, and after fruitless attempts in which the plaintiff incurred much expense, that part had to be executed in a different way. It was held that no warranty could be implied on the part oi the corporation that the plans were such as to nial:o the work in fact reasonably practicable, and that the plaintiff could (n) Broicn v. Royal Insurance Co. murrer, so that the agreement wag (1859) 1 E. & E. 853, 28 L. J. Q. B. admitted as pleaded. Such an agree- 275, diss. Erie J. who thought such ment will not be implied or inferred a reinstatement as was contemplated from ambiguous terms : Dodd V. by the contract (not being an entire Cliurton [1807] 1 Q. B. 563, 66 L. J. rebuildinc:) had become impossible Q. B. 477. C. A. by the act of the law. (q) (1876) L. R. 9 Ex. 163, in Ex. (o) (1870) L. R. 6 Q. B. 115, 124, Ch. 10 Ex. 112, affd. in H. L. 1 App. 40 L. J. Q. B. 80. Ca. 120, 45 L. J. Ex. 487. (p) This case was argued on de- li See David r. Ryan, 47 la. 642; Brady v. Insurance Co., 11 Mich. 451; Cordes v. Miller. 39 Mich. 581; Fire Assoc, v. Rosenthal, 108 Pa. 474. 34 530 IMPOSSIBLE AGREEMENTS. not recover as on such a warranty the value of the work that had been thrown away.^^ The judgments in the House of Lords leave 410] it an open *question whether, assuming the extra work thus caused not to have been extra work of the kind contemplated by the contract itself and to be paid for under it, the plaintiff might not have recovered for it as on a quantum meruit. In short, it is ad- mitted law tliat generally where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it, or jDay damages for not doing it, although in consequence of unfore- seen accidents the performance of his contract has become unex- pectedly burdensome or even impossible (r). Prohibition by foreign law is impossibility in fact. Where the perform- ance of a contract becomes impracticable by reason of its being forbidden by a foreign law, it is deemed to have become impossible not in law but in fact.-'^ In Barker v. Hodgson (s) intercourse with the port to which a ship was chartered was prohibited on ac- count of an epidemic prevailing there, so that the freighter was pre- sented from furnishing a cargo; but it was held that this did not dissolve his obligation. So if the goods are confiscated at a foreign port that is no answer to an action against the shipowner for not delivering them (/). But where the effect of a foreign law is to prevent both parties from performing their respective parts of the contract, both are excused {u). Obligation of tenant to pay rent though demised premises accidentally de- stroyed. Certain cases, of which Paradine v. Jane (x) is the leading 41 1 ] one, are often refe:^red to upon this head. The *effect of tliem is (r) Taylor v. CahhrcU (1863) 3 [1893] A. C. 22, G2 L. J Q. B. 98. B. & S. 826, 833, 32 L. J. Q. B. 164, [Hand v. Bavnes, 4 Whart. 204, 213.] 166. This rule does not extend, how- (s) (1814) 3 M. & S. 267, 15 R. R. ever, beyond express contracts. An 48.5. cp. Jacobs v. Credit Lyonnais undertaking to be answerable for de- (1884) 12 Q. B. Div. 589, .53 L. J. lay caused by vis maior, or other Q. B. 156, Avhere the exportation of causes beyond the contractor's con- the cai-po contracted for was forbid- trol and apart from any default on den by local law. • his part, cannot be made part of an (t) f^peiice v. Chodicick (1847) 10 implied contract: Ford v. Cotesirorfh Q. B. .517. 16 L. J. Q. B. 313. (1870) (Ex. Ch.) L. R. 5 Q. B. 544, ( u) Cvnninqlunn v. Dunn (1878) 39 L. J. Q. B. 188; Hick v. Raymoyid 3 C. V. Div. 443. ix) (1648) Aleyn 26. 12 Cp. Schliess r. Grand Rapids, 131 Mich. 52; McKnight Flintic Stone Co. r. Mayor. 160 N. Y. 72: D\\yer v. Mayor, 77 N. Y. Ax>V- ^'^^'- 224; Filbert v. Philadelphia. 181 Pa. 5.30: Harlow v. Homestead, 194 Pa. 57; Bentlcv r. «tate, 73 Wis. ^16. iSAshmore v. Cox, [1899] 1 Q. B. 436; Tweedie Tradinsr Co. r. James P. Macdonald Co., 114 Fed. Rep. 985; Beebe v. Johnson, 19 Wend. 500. SUrERVEXIXG ACCIDEXT. 531 that the accidental destniction of a leasehold building, or the tenant's occupation being otherwise interrupted by inevitable accident, does not determine or suspend the obligation to pay rent (y).^'^ In these cases, however, the performance of the contract does not really be- come impossible. There is obviously nothing impossible in the re- lation of landlord and tenant continuing with its regular incidents. We must be careful not to lose sight of the two distinct characters of a lease as a contract (or assemblage of contracts) and as a con- veyance. There : is a common misfortune depriving both parties to some extent of the benefit of their respective interests in the property ; not of the benefit of the contract, for so far as it is a matter of con- tract, neither party is in a legal sense disabled from performing any material part of it. The expense of getting housed elsewhere, or the loss of profits from a business carried on upon the premises, may render it difficult or even impracticable for the tenant to go on paying rent. But it does not render the payment of his rent im- (V) Leeds v. Cheefham (1827) 1 nis (1859) 1 E. & E. 474, 28 L. J. Sim. 146, 27 R. R. 181; Lofft V. Den- Q. B. 168. l4 0sborn V. Xicholson, 13 Wall. 654, 060; Viterbo v. Friedlander, 120 U. S. 707; Warren r. Wagner. 75 Ala. 188; Cook v. Anderson, 85 Ala. 99; Cowell r. Luniley, 39 Cal. 151; Robinson r. L'Engle. 13 Fla. 482; Coy v. Downie, 14 Fla. 544; White v. Molyneux, 2 Ga. 124; Leonard t: Boynton, 11 Ga. 109; Pope V. Garrard, 39 Ga. 471; Fleming v. King, 100 Ga. 449; Peck v. Ledwidge, 25 111. 109; Stubbings r. Evanston, 136 111. 37; Smith /;. McLean. 22 111. App. 451, 454; Womack v. McQuarrv, 28 Ind. 103; Skillen r. Waterworks Co., 49 Ind. 193, 198; Harris r. Heacknian, 62 la. 411; Redding v. Hall, 1 Bibb, 536; Helburn v. Moflford, 7 Bush, 169 ; Lamott r. Sterett, 1 Harr. & J. 42 ; Fowler r. Bott, 6 Mass. 63; Kramer V. Cook, 7 Gray, 550, 553; Lanpher v. Glenn, 37 Minn. 4; Gibson l'. Perry, 29 Mo. 245; Hallett v. Wylie, 3 Johns. 44: Gates V. Green, 4 Paige Ch. 355 ; Patterson V. Ackerson, 1 Edw. Ch. 90 : Howard r. Doolittle, 3 Duer, 464; Graves v. Berdan, 26 N. Y. 498, 500; Hilliard v. New York, &e. Co., 41 Ohio St. 602; Feiix v. Griffiths, 50 Ohio St. 30; Harrington V. Watson, 11 Oreg. 143; French r. Richards, 6 Phila. 547; Diamond v. Harris, 33 Tex. 634; Arbenz v. Exley, 52 W. Va. 476; Cross n. Button, 4 Wis. 468. But otherwise in Nebraska and South Carolina. Wattles v. South Omalia Co., 50 Neb. 251; Ripley V. Wightman, 4 McC. 447; Coogan v. Parker. 2 S. C. 255. And perhaps in Kansas. Whitaker v. Hawley, 25 Kan. 674. Also in New York and Kentucky by statute. N. Y. Laws of 1860, chap. 345: Ky. Stats.. § 2297. See Suvdam v. Jackson, 54 N. Y. 450; Butler r. Kidder, 87 n! Y. 98: Edwards V. McLean, 122 N. Y. 302; Craig r. Butler, 83 Hun. 286, 150 N. Y. 072: Wer- ner V. Padula, 49 N. Y. App. Div. 135, 107 N. Y. Oil; Sun Ins. Office v. Varble, 103 Ky. 758._ A lessee who, during the late Civil War, was dispossessed by the military authorities and deprived of the use and control of the demised premises, his lessor having gone within the lines of the enemy, was held to be discharged from liability to the lessor for the rent accruing during the period of such dis- . possession. Gates v. Goodloe, 101 V. S. 012. And see Harrison r. Mver. 92 U. S. Ill: Coogan r. Parker, 2 S. C. 255. It is held in this country that the lessee of apartments in a building, his lease giving him no interest in the soil upon which the building stands, is re- leased from his covenant to pay rent by the accidental destruction of the 532 IMPOSSIBLE AGREEMENTS. possible in any other sense than it renders the payment of any other debt to any other creditor impossible (z). It is a personal and rela- tive " causa diflScultatis ;" which, as we have seen, is irrevelant in a legal point of view. The lessee's special covenants, if such there be, to paint the walls at stated times or the like, do become impossible of performance by the destruction of their subject-matter, and to that extent, no doubt, are discharged or suspended as being within the rule in Taylor v. Caldwell, which we shall immediately consider. Only to this limited extent is there any precise resemblance to the wider class of cases where the performance of a contract becomes in fact impossible A similar question, viz., whether the contract is really unconditional. The true analogy is in the nature of the question which the rule of law has to decide: namely, whether the contract is in substance 412] and effect as *well as in terms unconditional and without any implied exception of inevitable accident. We shall see that this is always the real question. The answer being here determined by Paradine v. Jane (a), it was held in the later cases (h) (about which difficulties are sometimes felt, bat it is submitted without solid reason) that it is not affected by the landlord having protected himself fx^) See per Lord Blackburn, 2 ih) Leeds v. Cheetham (1827) 1 App. Ca. 770. Sim. 146, 27 R. R. 181 ; Lofft v. Den- (a) Aleyn 26. nis (1859) 1 E. & E. 474, 28 L. J. Q. B. 168. edifice. McMillan r. Solomon, 42 Ala. 356; Ainsworth r. Ritt, 38 Cal. 89; Alexander v. Dorsey, 12 Ga. 12; Womack r. McQuarrv, 28 Ind. 103; Shaw- mut Bank v. Boston, 118 Mass. 125, 128; Graves v. Berdan, 29 Barb. 100; 26 X. Y. 498; Hilliard r. New York, &c. Co., 41 Ohio St. 662, 666; Harring- ton V. Watson, 11 Oreg. 143, 145; Hahn v. Baker Lodge, 21 Oreg. 30, 34; Con- necticut Ins, Co. r. United States, 21 Ct. CI. 195, 201. See also Waite r. O'Neil, 76 Fed. Rep. 408 (C. C. A.) ; Buerger r. Boyd, 23 Ark. 441; Ainsworth V. Mount Moriah Lodge, 172 Mass. 257; Chler r. Cowen, 199 Pa. 316 (with which cp. Foote v. Cincinnati, 11 Ohio, 408). Kentiicky followed the English law (Helburn v. MolTord, 7 Bush, 169), until the rule was changed by statute. Ky. Stat., § 2297 ; Sun Ins. Office r. Varble, 103 Ky. 758. On the other hand the lessee is not entitled to rebiiild a leased room after the building has been destroyed. Hahn V. Baker Lodge, 21 Oreg. 30. See also Utah Optical Co. r. Keith, 18 Utah, 464. The special rules for leased apartments are applicable when, and only when, the leased premises are totally destroyed. Humiston r. Wheeler, 175 111. 514. See also Waite r. O'Neil, 76 Fed. Rep. 408 (C. C. A.) ; Corrigan v. City, 144 111. 537. In Whitaker v. Hawley, 25 Kan. 674, it was held that where, by a single in- strument, real and personal property were leased for a gross rental, the person- alty being a substantial part of the leased property, upon a total destruction by accident, the lessee was entitled to an abatement of the rent equal to the pro- portionate rental value of the personalty. But see Bussman f. Ganster, 72 Pa. 285. See further, 9 Harv. L, Rev. 125-130. THE CIVIL LAW. 533 by an insurance, which is a purely colhiteral contract of indemnity.^^ There might indeed be a furtlier collateral agreement between the landlord and tenant that the landlord should apply the insurance moneys to rebuilding the premises. Such an agreement would be good without any new consideration on the tenant's part beyond his acceptance of the lease, and probably without being put into writ- ing (c). On the other hand it is often a term of the lease that the tenant shall keep the premises insured and that in case of fire the insurance moneys shall be applied in reinstatement. There, if the landlord has insured separately without the knowledge of the tenant, so that the damage is apportioned between the two policies, and the amount received by the tenant is diminished, the tenant is entitled to the benefit of the other policy also (d). The rule of the civil law is otherwise. The rule or presumption might have been the other way, as it is by the civil law, where it is an inci- dent of the contract to pay rent that it is suspended by inevitable accident destroying or making useless the thing demised. The par- ticular event on which Paradine v. Jane was decided, eviction by alien enemies (e), is expressly dealt *with in this manner. The [413 (c) Parol collateral agreements {e) Si ineursus hostium fiat, D. have been held good in Erskine V. 19. 2. locati conducti, 15 § 2; or Adeane (1873) L. R. 8 Ch. 756, 42 even reasonable fear of it: Si quia L. J. Ch. 835 ; Morgan v. Griffith timoris causa emigrasset . . . (1871) L. R. 6 Ex. 70. 40 L. J. Ex. respondit, si causa fuisset cur peric- 46; Anqell v. Duke (1875) L. R. 10 ulum timeret, quamvis periculum Q. B. 174, 44 L. J. Q. B. 78 : De Las- vere non fuisset, tamen non debere sallev. Guildford [1901] 2 K. B. 215, niercedem : sed si causa timoris iusta 70 L. J. K. B. 533, C. A. non fuisset, nihilominus debere, B. (d) Reynard v. Arnold (1875) L. eod. tit. 27, § 1. R. 10 Ch. 380. 15 Sheets v. Selden, 7 Wall. 416, 424: Skillcn r. Water Works Co., 49 Ind. 193, 198; Carlson V. Presbyterian Board, 67 Minn. 436: Insurance Co. v. Hutchinson, 21 N. J. Eq. 107 ; Kingsbury r. Westfall, 61 N. Y. 356: Piatt v. Railroad Co., 108 N. Y. 358: Magaw v. Lambert, 3 Pa. 444: Bussman v. Ganster, 72 Pa. 285: Hov i: Holt, 91 Pa. 88, 90. Cp. Williams v. Lilley, 67 Conn. 50. Where the tenant covenants to keep the building in repair, and at the end of the term to deliver it up in as good condition as when he received it, though the landlord protects himself by an insurance, if the building is destroyed by fire, the tenant, having rebuilt in performance of his covenant, has no claira upon the insurance money. Ely i\ Ely, 80 111. 532. But the tenant having re- paired, the insurance companv can recover from the landlord the insurance which it has paid. Darrell r.'Tibbitts. 5 Q. B. D. 560; West of England Ins. Co. V. Isaacs, [1^061 2 Q. B. 377: [1897] 1 Q. B. 226. In Whitaker v. Hawley. 25 Kan. 674, it was held that a stipulation in the lease that the lessee should insure for the benefit of the lessor " limits and qualifies the promise to pay rent, and that as the former becomes operative the latter ceases to have force." As to the right to insurance when property is destroyed pending a contract of sale. Ames, Cas. Eq. Jur. 234, n.; 15 Harv. L. Rev. 160. 534 IMPOSSIBLE AGREEMENTS. Lnv of Scotland follows the civil law (/)/^ and the Irish Landlord and Tenant Act of 1860 gives the tenant the option of surrendering on a dwelling-house " or other building constituting the substantial matter of the demise " being by fire or other inevitable accident destroyed or made incapable of beneficial occupation (g). Either way the rule is subject to any special agreement of the parties; the only question of principle is which, in the absence of such agree- ment, is the better distribution of the hardship that must to some extent fall upon both. It is hard for a tenant, according to the English rule, to pay an occupation rent for a burnt out plot of ground. It is hard for a landlord, according to the Eoman and Scottish rule, to lose the rent as well as (it may be) a material part of the value of the reversion. Either party may be insured ; but that, as we have said, is not of itself relevant as between them. Exceptions in certain cases of susbequent impossibility. So far the gen- eral rule. The nature of the exceptions is thus set forth by the Judg- ment of the court in Baily v. De Crespigny : — '•' There can be no doubt that a man may by an absolute contract bind himself to perform things which subsequently become impossible or to pay damages for the non-performance, and this construction is to be put upon an unqualified undertaking, where the event which causes the impossibility was or might have been anticipated and guarded against in the contract, or where the impossibility arises from the act or default of the promisor. " But where the event is of such a character that it cannot reasonably be supposed to have been in the contemplation of the contracting parties wlien the contract was made, they will not be held bound by general words which, though large enough to include, were not used with reference to the possibility of the particular contingency which afterwards happens. It is on this principle that the act of God is in some cases said to excuse the breach of a contract. This is in fact an inaccurate expression, because, where it is an answer to a com- 414] plaint of an alleged breach *of contract that the thing done or left undone was so by the act of God, what is meant is that it was not within the con- tract " (h) . Events not within the contemplation of the contract. This (as well as the following context, which is too long to quote) well shows the modern tendency to reduce all the rules on this subject to rules of construction." By the modern understanding of the law we are (f) Per Lord Campbell, Lofft v. (g) 23 & 24 Vict. c. 154. s. 40. Dennis (18.59) note (h) last page: (h) ( 1869] L. R. 4 Q. B. at p. 185. Bell, Principles, § 1208. 10 See Viterbo v. Friedlander, 120 U. S. 707; Gates v. Green, 4 Paige, 355; C'oogan V. Parker, 2 S. C. 255. 1" " The relief aflforded to the party in the cases referred to is not based upon exceptions to the general rule, but upon the construction of the contract." Dexter (;. Norton, 47 N. Y. f)2. 64. ■' The result must be deemed an unexpressed condition of their agreement." People V. Insurance Co., 91 X. Y. 174, 179. See also Moore v. Sun Printing ACT OF GOD. 535 not bound to seek for a general definition of " the act of God " or vis maior (i), but only to ascertain what kind of events were within the contemplation of the parties, including in the term " event " an existing but unascertained state of facts. This is yet more apparent if one attempts to frame any definition of the term " act of God." It is said to be generally confined to events which cannot be foreseen, or which if they can be foreseen cannot he guarded against (A;). It does not include every inevitable accident; contrary winds, for ex- ample, are not within the meaning of the term in a charter-party. Nor is the reason far to seek; the risk of contrary winds, though inevitable, is one of the ordinary risks which the parties must be understood to have before them and to take upon them in making such a contract : therefore it is said that the event must be not merely accidental, but overwhelming (/). But on the other hand the term is not confined to unusual events : death, for example, is an "act of God" as regards contracts of personal service, because in the particular case it is not calculable. Yet the fact that this very event is not only certain to happen, but on a sufficiently large average is calculable, and therefore in one sense can be guarded against, is the foundation of the whole system of life *annuities [41 5 and life insurance (m). Again, death is inevitable sooner or later, but may be largely prevented as to particular causes and occasions. The effects of tempest or of earthquake may be really inevitable by any precaution whatever. But fire is not inevitable in that sense. Precautions may be taken both against its breaking out and for extin- guishing it when it does break out. We cannot arrive, then, at any more distinct conception than this : An event which, as hetiveen the parties and for the pw'pose of tlie matter in hand, cannot be definitely foreseen or controlled. In other words, we are thrown back upon the nature and construction of the particular contract (n).^^ We may now proceed to the specific classes of exceptional cases. {{) Both these terms are classical: crs of Seircrs for Essex (1885) 14 Q. "Vis maior, quam Graeci Oeou /Scao B. D. .561, 574. appellant." Gaius in D. 19. 2. locati (H Per Martin B. Oakleij V. Ports- 25 § 6. Vis maior is sometimes the mouth cf Byde Steam Packet Co. only appropriate term, as where the (185fi) 11 Ex. filS. 22 L. J. Ex. 99. idea is applied to acts of a human (m) As the medieval ada^e puts soverei^i power, see Mittelholzer V. it, " Nihil morte certius, nihil in- Fullarton (1844) 6 Q. B. 989. 1018. certius hora mortis." (k) Cave J. in R. v. Commission- (n) As to what is such an "act Assoc. 101 Fed. Rep. 591, 593; Lorillard r. Clvde. 142 X. Y. 456. 462: Dolan r. Rodq-ers, 149 X. Y. 489: Buffalo. &c. Co. r. Bellevue. &c. Co., 165 N. Y. 247; Lovering r. Buck ^Inuntnin Co., 54 Pa. 291 ; 1 Columbia L. Eev. 529. 18 See Friend v. Woods. 6 Gratt. 189, 195. 53G IMPOSSIBLE AGEEEMEXTJ. a. Where the performance depends on the existence of a specific thing. Where the performance of the contract depends on the existence of a specific thing. The law was settled on this head by Taylor v. Caldivell (o), where the defendants agreed to let the plaintiffs have the use (o) of the Surrey Gardens and Music-hall on certain days for the purpose of giving entertainments. Before the first of those days the music-hall was destroyed by fire so that the entertainments could not be given, and without the fault of either party. The Court lield that the defendants were excused, and laid down the followinsr principle : " Where from the nature of the contract it appears that the parties must from the beginning have known that it could not. be fulfilled unless, when the time for the fulfillment of the contract arrived, some particular specified thing continued to exist, so that 416] when entering into the contract they must *have contemplated such continued existence as the foundation of what was to be done:, there in the absence of any express or implied (p) warranty that the thing shall exist, the contract is not to be considered a positive contract, but subject to the implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor." ^^ And the following authorities and analogies were relied upon : — The civil law, which implies such an exception in all cases of obligation de certo corpore (q). of God" as will make an exception tween the parties: the whole scope of to a duty imposed not specially by the passage being that it is not to be contract but by the general law, see implied by law. y'ichvls V. Marsland (1876) 2 Ex. (q) D." 4."). 1. de v. o. 2.3. 3-3. Cp. Div. 1, 46 L. J. Ex. 174; Nugent v. also D. 46. 3. de .solut. 107. Ver- Srnith (1876) 1 C. P. Div. 423, 444, borum obligatio aut naturaliter re- 45 L. J. C. P. 697; Commissioners of solvitur aut civililer; naturaliter. Sewers v. Reg. (1886) 11 App. Ca. veluti solutione, aut cum res in 449. stipulationem deducta sine culpa (o) (1863) 3 B. & S. 826. 32 L. J. promissoris in rebus humanis esse" Q. B. 164. There were words suffi- desiit. Pothier. Obi. § 140, ib. Part cient for an actual demise, but the 3, ch. 6, § 649, sqq., and Contrat Court held that the manifest general de Yenfe, § 308, sqq. translated in intention prevailed over them. Blackburn on Sale, 173 (249 in 2d ip) That is, understood in fact be- ed. by Graham), 19 See The Tornado, 108 U. S. 342; Arthur r. Blackman. 63 Fed. Rep. 536; Fresno Milling Co. r. Fresno C. & I. Co., 126 Cal. 64; School District v. Dauchy. 25 Conn. 530; \Yalker v. Tucker, 70 111. 527; Price v. Pepper, 13 Bush, 42; Pinkham v. Libbey, 93 Me. bio; Wells v. Calnan, 107 Mass. 514; Thomas r. Knowles, 128 Mass. 22; Gilbert, &c. Co. v. Butler, 146 Mass. 82; Goldman r. Rosenberg. 116 N. Y. 78; Stewart r. Stone, 127 X. Y. 500; Young V. Leary. 135 N. Y. 569; Dolan V. Rodgers, 149 X. Y. 489; Lovering r. Coal Co., 54 Pa. 291 : Huguenin /;. Courtenav, 21 S. C. 403 ; McMillan V. Fox, 90 Wis. 173. Cp. Board of Education v. Townsend, 63 Ohio St. 514. DESTRUCTION OF SUBJECT-MATTER. 537 The cases of rights or duties created by a contract of a strictly personal nature which, though the contract is not expressly qualified, are by English law not transmissible to executors. The admitted rule of English law that where the property in specific chattels to be delivered at a future day has passed by bargain and sale, and the chattels perish meanwhile without the vendor's default, he is excused from performing his contract to deliver; and the similar rule as to loans of chattels and bailments. In all these eases, though the promise is in words positive, the exception is allowed " because from the nature of the contract it is apparent that the parties contracted on the basis of the continued existence of the particular person or chattel." Appleby v. Myers. The same principle was followed in Applehj V. Myers (r). There the plaintiffs agreed with the defendant to erect an *engine and other machinery on his premises, at certain [417 prices for the separate parts of the work, no time being fixed for payment. While the works were proceeding, and before any part was complete, the premises, together with the uncompleted works and materials upon them, were accidentally destroyed by fire. In the Common Pleas it was held that the plaintiffs might recover the value of the work already done as on a term to that effect to be im- plied in the nature of the contract. In the Exchequer Chamber the judgment of the Common Pleas was reversed. It was admitted that the work under the contract could not be done unless the defendant's premises continued in a fit state to receive it. It was also admitted that if the defendant had by his own default rendered the premises unfit to receive the work, the plaintiffs might have recovered the value of the work already done.^*^ But it was held that the Court below were wrong in thinking that there was an absolute promise or warranty by the defendant that the premises should at all eventf continue so fit. " Where, as in the present case, the premises are destroyed without fault on either side, it is a misfortune equally aff'ecting both parties, excusing both from further performance of the contract, but giving a cause of action to neither." ^^ Another (r) (18G7) L. R. 2 C. P. 051, in earned nothing: when the vessel was Ex. Ch. revg. s. c. 1 C. P. 615, 36 accidentally stranded before the end L. J. C. P. 331, applied in a towage of tlie journey: The Madras [1898] case where it was held that the tug P. 90. 20 See Gilbert Mfg. Co. r. Butler, 140 Mass. 82: Sennott v. Mallin. 82 Pa. 333. 21 In this country recovery for the work done is generally allowed. Schwartz r. Saunders, 46 111. 18; Rawson v. Clark, 70 111. 656; Clark i. Busse, 82 111. 515; Lord v. Wheeler, 1 Gray, 282; Cleary v. Sohier, 120 Mass. 210; Butter- 538 IMPOSSIBLE AGREEMENTS. argument for the plaintiffs was that the property in the work done i-acl passed to the defendant and was therefore at his risk (s). To this the Court answered that it was at least doubtful whether it had ; and even if it liad, the contract was still that nothing should be payable unless and until the whole work was completed. Contract for shipment in named ship. Similarly, a contract for the de- 418] livery of cargo to be ^shipped at Alexandria in a named ship during a certain month was held to be discharged by an accident to the ship which stranded her in the Baltic before the time for performance; in other words the contract was conditional on that ship continuing to exist as a cargo-carr}-ing ship available for the performance of the contract (t). Saving as to instalments of payment already earned. Wliere there is an entire contract for doing work upon specific property, as fitting a steamship with new machinery, for a certain price, but the price is payable by instalments, and the ship is lost before the machinery has been delivered, but after one or more of the instalments has been paid, the further performance of the contract is excused, but the money already paid, though on account not of a part, but of the entire contract, cannot be recovered back (ii). (s) In the ease cited in argument {t) Nickoll d Knight v. Ashton, from Dalloz, Jurisp. Gen. 1861, pt. Edridge d Co. [1901] 2 K. B. 126, 1. 105. Chemin de fer da Dauphine v. 70 L. J. K. B. 600, C. A. Clet (1861) where railway works in (u) Anglo-Egyptian Navigation course of construction had been Co. v. Rennie (1875) L. R. 10 C. P. spoilt by floods, the Court of Cassa- 271, 44 L. J. C. P. 130. It would tion relied on the distinction that seem the same on principle where the they were not such as remained in whole price is paid in advance. See the contractor's disposition till the Vangerow, Pand. 3. 234 sqq. ; and the whole was finished, but " de construe- cases on contracts, personal service, tions dont les materiaux et la main and apprenticeship cited farther on. d'teuvre etaient fournis par I'entre- The destruction of a place of business preneur et qui s'incorporaient au sol does not discharge a continuing con- du proprietaire." as excluding the ap- tract to carry on the business if it is plication of articles 1788-1790 of the capable of being resvmied elsewhere: Code Civil, which lay do\^'n a rule Turner v. Goldsmith [1891] 1 Q. B. similar to Ihat of the principal case. 544, 60 L. J. Q. B. 247, C. A. field V. Byron. 153 I\Iass. 517: Angus r. Scully. 176 }tlass. 357: Ha^mes V. Second Baptist Church. 88 Mo. 285 (cp. Fairbanks v. Richardson Drug Co., 42 Mo. App. 262; Pike Electric Co. r. Richardson Drug Co.. 42 :Mo. App. 262) ; Niblo V. Binsse. 1 Keyes, 476: Whelan r. Ansonia Clock Co., 97 N. Y. 293; Dolan V. Rodgers. 149 X. Y. 489, 494; Hayes v. Gross. 9 N. Y. App. Div. 12; aflfd., without opinion, 162 N. Y. 610: Hollis r. Chapman. 36 Tex. 1; Weis v. Devlin, 67 Tex. 507; Clark r. Franklin. 7 Leigh, 1. See also Bentley v. State, 73 Wis. 416 (cp. Vogt r. Hecker. 118 Wis. 306). But see contra. Brumby v. Smith, 3 Ala. 123; Clark r. Collier, 100 Cal. 256; Siegel r. Eaton & Prince Co., 165 III. 550; Huvett Mfg. Co. r. Chicago Edison Co.. 167 III. 233: Fairbanks r. Richardson Drug Co., 42 Mo. App. 262: Pike Electric Co. v. Richardson Drug Co., 42 Mo. App. 272: Murphy v. Forget, Rep. Jud. Quebec, 19 C. S. 135. s > f NON-EXISTENCE OF SUBJECT-MATTER. 539 Contract for future specific product. The same doctrine has been ap- plied where the subject-matter of the contract is a future specific product or some part of it. In March A. agreed to sell and B. to purchase 200 tons of potatoes grown on certain land belonging to A. In August the crop failed by the potato blight, and A. was unable to deliver more than 80 tons : the Court held that he was excused as to the rest. " The contract was for 200 tons of a particular crop in particular fields " . . . " not 200 tons of potatoes simply, but 200 tons off particular land " . . . " and therefore there was an implied term in the contract that each party should be free if the crop perished '' (.r).— Abolition of slave status. The same principle is involved in the de- cision of the ^Supreme Court of the United States that a war- [419 lanty of title and quiet enjoyment given on the sale of a slave be- fore the war was discharged by the Thirteenth Amendment to the Constitution (y). Impossibility at date of contract from state of things not contemplated by parties. These are all cases of the performance becoming impos- sible by events which happen after the contract is made. But some- times the same kind of impossibility results from the present existence of a state of things not contemplated by the parties, and the perform- ance is excused to the same extent and for the same reasons as if that state of things had supervened. Where this impossibility con- sists in the absolute non-existence of the specific property or interest in property which is the subject-matter of the agreement, it is en- dent that the agreement would not have been made unless the parties liad contemplated the subject-matter as existing. Otherwise it would be reduced to a case of absolute impossibility; for when a thing is once known to be in the events which have happened impossible, (x) Hoirell v. Coupland (1876) (i/) Oshorn X. 'Nicholson (1871) 13 L. R. 9 Q. B. 462. 466, 46 L. J. Q. B. Wallace, 654. 147, afTd. in C. A. 1 Q. B. Div. 2.58, see per Cleasby B. at p. 263. 22 To the same eflfect are: Browne V. United States, 30 Ct. CI. 124; Ontario Fruit Assoc, v. Cutting Packing Co., 134 Cal. 21; Losccco v. Gregory, 108 La. 648. See also Rice v. Weber, 48 111. App. 573. But where the crop is not required by the contract to be grown on particular land, the contractor is not excused. Anderson r. May, 50 Minn. 280 ; Newell r. New Holstein Canning Co., 119 Wis. 635. in Summers v. Hibbard, 153 111. 102, the defendant was held not excused from liability on a contract lo sell goods manufactured at a particular mill by the fact that machinery in the mill broke down, making performance impossible. But where the mill itself was destroyed the contractor was held excused. Stewart r. Stone. 127 N. Y. 500. Cp.' Jones v. United States, 96 U. S. 24 ; Booth v. Spuyten Duyvil Co., 60 N. Y. 487. Also supra, p. 528, n. 10. 540 IMPOSSIBLE AGREEMENTS. it is the same as if it had been in its own nature impossible. Here^ then, the agreement of the parties is induced b\ a mistaken assump- tion on which they both proceed, as in the analogous cases noticed above under the head of impossibility in law. Here, as there, it is a question whether impossibility or mistake, or both, shall be as- signed as the ground on which the agreement is void. And here likewise, according to our authorities, mistake seems to be the ground assigned by preference. It is not so much the impossibility of per- formance that is regarded as the original non-existence of the state of things assumed by the contracting parties is the basis of their contract. The main thing is to ascertain, not whether the agreement can be performed, but what was in the true intention and contempla- tion of the parties (z). If it appears that they conceived and 420] dealt *with something non-existent as existing, the agreement breaks down for want of any real contents. Hence these cases are treated for the most part as belonging to the head of Mistake. It may be that the peculiar historical conditions of English law count for something in this. Accident, Fraud, and Mistake were the accustomed descriptions of heads of equity under which the Court of Chancery gave relief. The fiction of this relief being something extraordinary, and as it were supra-legal, was kept up in form long after it had ceased to be either true or useful; and the terms Fraud and Mistake were extended far beyond any reasonable meaning in order to support the jurisdiction of the Court in a great variety of cases where the procedure and machinery of the common law Courts were inadequate to do justice. In the cases now before us, however, there is real difficulty in drawing the line: and one or two examples of the class will be given in this place. Sale of cargo previously lost. In the leading case of Couturier v. Hastie [a), decided by the House of Lords in 1856, a bought note had been signed for a cargo of Indian corn described as " of fair average quality when shipped from Salonica." Several days before the sale, but unknown to the parties, the cargo, then on the voyage, was found to be so much damaged from heating that the vessel put (z) See especially Couiiirier v. of mind of the parties makes no dif- Hastie (1856) 5 H. L. C. 673, 25 L. ference. It is at least doiibtful. as J. Ex. 253. Savigny (Syst. 3. 303) we shall have opportunities of seeing, is decidedly against error being con- whether this position be true in Eng- sidered the ground of nullity in these lish law. cases: but chiefly because, as he (a) (1856) 5 H. L. C. 673. holds, the knowledge or other state IMPLIED OR EXPRESS EXCEPTIONS. 541 into Tunis, where the cargo was sold. The only question seriously disputed was what the parties really meant to deal with, a cargo sup- posed to exist as such, or a mere expectation of the arrival of a cargo, isubject to whatever might have happened since it was shipped. Lord Cranworth in the House of Lords, in accordance with the opinion of nearly all the judges, held *that " what the parties contem- [421 plated, those who sold and those who bought, was that there was an existing something to be sold and bought." No such thing existing, there was no contract which could be enforced. Covenants to work mines, or to raise minimum amount. When a lessee under a mining lease covenants in unqualified terms to pay a fixed minimum rent, he is bound to pay it (h),^^ though the mine may turn out to be not worth working or even unworkable. But it is other- wise with a covenant to work the mine^'* or to raise a minimum amount.^^ Where a coal mine was found to be so interrupted by faults as to be not worth working, it was said that the lessor might be re- ■fitrained from suing on the covenant to work it on the terms of the lessee paying royalty on the estimated quantity of coal which re- mained unworked (c). Clifford V. Watts. A similar question was fully dealt with in Clifford V. Watts (d). The demise was of all the mines, veins, etc., of clay on certain land. There was no covenant by the lessee to pay any mini- mum rent, but there was a covenant to dig in every year of the term (6) Marquis of Bute v. Thompson (c) Ridqway v. Sneyd, last note. (1844) 13 M. & W. 487, 17 L. J. Ex. (d) (1870) L. R. 5 C. P. 577, 40 95. So in equity, Ridgway v. Sneyd L. J. C. P. 36. (1854) Kay, 627. 23 Lehigh Zinc Co. r. Bamford, 150 U. S. 665; McDowell r. Hendrix, 67 Ind. 513; Valley Citv Milling Co. v. Prange, 123 Mich. 211; Wharton v. Stouten- burgh, 46 N. J. L. 151: Timlin r. Brown, 158 Pa. 606. Cp. Monnett v. Potts. 10 Ind. App. 191; Blake V. Lobb's Estate, 110 Mich. 60S; Brick Co. v. Pond, 38 Ohio St. 65. In the case last cited A., by an agreement in Avriting, " leased " to B., " all the clay that is good No. 1 fire clay, on his land " described, for a term of three years subject to the conditions that B. " shall mine, or cause to be mined, or pay for, not less than 2,000 tons of clay every year, and shall pay therefor twenty-five cents per ton for every ton of clay monthly, as it is taken away," it was held that if clay of the quality mentioned, and in quantity suf- ficient to justify its mining, could not, by the use of due diligence, be found on the land, then there was no obligation to pay the amount agreed on. in case •of failure to mine. See also Muhlenberg v. Henning, 116 Pa. l.'JS; Boyer v. Eulmer, 176 Pa. 282. 24 Cook V. Andrews, 36 Ohio St. 174. See also Buchanan r. Layne, 95 Mo. App. 148. sJ^Ridgelv V. Conswago Iron Co.. 53 Fed. Ren. fl88 ; Gribben r. Atkinson, 64 Mich. 651:' Muhlenberg r. Henning. 116 Pa. 138; Boyef v. Fulmer, 176 Pa. 1282. See also Baiinan v. Graeff, 186 Pa. 648. 543 i:\rpossiBLE ageeemexts. not less than 1000 tons nor more than 2000 tons of pipe or potter's clay. An action was brought by the lessor for breach of this covenant. Plea (e), to the effect that there was not at the time of the demise or since so much as 1000 tons of such clay under the lands, that the performance of the covenant had always been impossible, and that at the date of the demise the defendant did not know and had no reason- able means of knowing the impossibility. The Court held that upon the natural construction of the deed the contract was that the lessee should work out whatever clay there might be under the land, and the covenant sued on was only a subsidiary provision fixing the rate at which it should be worked. The tenant could not be presumed to 422] warrant that clay should *be found: and "the result of a decision in favour of the plaintiff would be to give him a fixed mini- mum rent when he had not covenanted for it " (/). Analogous effect of express exceptions in commercial contracts. In cer- tain kinds of contracts, notably charter-parties, it is usual to provide by express exceptions for the kind of events we have been considering. It is not within our province to enter upon the questions of construc- tion which arise in this manner, and which form important special topics of commercial law. However, when the exception of a certain class of risks is once established, either as being implied by law from the nature of the transaction, or by the special agreement of the parties, the treatment is much the same in principle : and a few recent decisions may be mentioned as throwing light on the general law. Where the principal part of the contract becomes impossible of per- formance by an excepted risk, the parties are also discharged from performing any other part which remains possible, but is useless with- out that which has become impossible (g).^^ It is a general prin- (e) It was pleaded as an equitable ^ughruc (pp. *399, *400, *408, above), plea under the C. L. P. Act, but the it is perhaps enough to say that the Court treated the defence as a legal Court of Common Pleas as consti- one. tuted in 1870 would scarcely have if) Per Montague Smith J. at p. arrived, on the facts of Bills v. 587. Cp. and dist. Jcrvis v. Tomkin- Siicjhrur. at the same result as the sen (18.56) 1 H. & N. 195. 26 L. J. Court of Exchequer in 1847: but Ex. 41, where the covenant was not there is no actual conflict, as the only to get 2.000 tons of rock salt question in every case is of the true per annum, but to pay 6d. a ton intention of the contract taken as a for every ton short, and the lessees whole, and the contracts in these knew of the state of the mine when cases are of (juite different kind'^. thev executed the lease. As to the (g) GHpel V. f^mifh (1872) L. Pi. relation of Clifford v. Wafts to Hills v. 7 Q. B. 404. 411, 41 L. J. Q. B. 153. 2fi Where the defendants contracted with the proprietors of n t!.ea+re to fur- nish the " Waclitel Opera Troupe "" to give a certain number of performances. Wachtel being the leader and chief attraction of the company, and his connec- PERSONAL SERVICES. 543 ciple that a contract is not to be treated as having become impossible of performance if by any reasonable construction it is still capable in substance of being performed (h) -P but on the other hand special exceptions are not to be laid hold of to keep it in force contrary to the real intention. Thus where the contract is to be performed " with all possible despatch," saving certain impediments, the party for whose benefit the saving is introduced cannot force the other to accept *performanee after a delay unreasonable in itself, though due to [423 an excepted cause, if the manifest general intention of the parties is that the contract shall be performed within a reasonable time, if at all. The saving clause will protect him from liability to an action for the delay, but that is all : the other party cannot treat the contract as broken for the purpose of recovering damages, but he is not prevented from treating it as dissolved (i). Where performance depends on life or health of a person. Where the contract is for personal services of which the performance depends on the life or health of the party promising them. "All contracts for personal services which can be performed only during the lifetime of the party contracting are subject to the implied condition that he shall be alive to perform them ; and should he die, his executor is not liable to an action for the breach of contract occasioned by his death" (h)?'^ Conversel}^ if the master dies during the service, the servant is thereby discharged, and cannot treat the contract as in force against the master's personal representatives {l)P The passage (7i) The Teutonia (1872) L. R. 4 10 C. P. 125, 144 sqq., 44 L. J. C. P. P. C. 171, 182, 41 L. J. Ad. ^7. Cp. 27. Jones V. Holm (1867) L. R. 2 Ex. (k) Pollock C.B. in Hall v. Wright 335. (1858) E. B. & E. at p. 793, 29 L. J. (i) Jackson v. Union Marine In- Q. B. at p. 51. surance Co. (1874) in Ex. Ch. L. R. (I) Farrow v. Wilson (1869) L. R. 4 C. P. 744, 38 L. J. C. P. 326. iton with it the inducement to plaintiffs to enter into tlie contract, it Avas held " that the presence of Wachtel was the principal thing contracted for and was of the essence of the contract: that plaintiffs would not have heen bound to accept the services of the troupe without him." and that the illness of Wachtel having incapacitated him to perform constituted a valid excuse for defendant's failure to furnish the troupe. Spalding r. Rosa, 71 N. Y. 40. 27 White V. Mann, 26 Me. 361; Williams v. Vanderbilt, 28 N. Y. 217. 28 Marvel v. Phillips, 162 Mass. 399; Siler r. Gray, 86 N. C. 566; Dickinson r. Calahan, 19 Pa. 227. Nor can the executor insist that the other party sliall accept performance bv himself in place of the decedent. Schultz r. Johnson's Adm'r, 5 B. Mon. 497: Blakely v. Sousa, 197 Pa. 305. See also Baxter r. Billings, 83 Fed. Rep. 790. 29 Harris r. Johnson. 98 Ga. 434: Weedon V. Waterhouse. 10 Hawaii. 696: Lacy r. Getman. 119 N. Y. 109; Yerrington v. Greene, 7 R. I. 589. Cp. Volk r. Stowpll. 98 Wis. 385. The death of one member of a partneiship is generally held to dissolve a ,."544 IMPOSSIBLE AGREEMENTS. now cited goes on to suggest the extension of this principle to the ■case of the party becoming, without his own default, incapable of fulfilling the contract in his lifetime : " A contract by an author to write a book, or by a painter to paint a picture within a reasonable .time, would in my judgment be deemed subject to the condition that if the author became insane, or the painter paralytic, and so incapable of performing the contract by the act of God, he would not be liable personally in damages any more than his executors would be if he had been prevented by death." This view, which obviously commends itself in point of reason and convenience, is strongly confirmed by Taylor v. Caldwell {supra, p. *415), where indeed it was recog- 424] nized *as correct, and it has since been established by direct de- cisions. Boast V. Firth. In Boast V. Firth (in) a master sued the father of his apprentice on his covenant in the apprenticeship deed that the apprentice should serve him, the plaintiff, during all the term. The defence was that the apprentice was prevented from so doing by per- manent illness arising after the making of the indenture. The Court held that " it must be taken to have been in the contemplation of the parties when they entered into this covenant that the prevention of performance by the act of God should be an excuse for non-perform- ance " (n), and that the defence was a good one. Robinson v. Davison. In Bohinson V. Davison (o) the defendant's ^vife, an eminent pianoforte player, Avas engaged to play at a concert. When the time came she was dsabled by illness. The giver of the entertainment sued for the loss he had incurred by putting off the concert, and had a verdict for a small sum under a direction to the (m) (1868) L. R. 4 C. P. 1, 38 (o) (1871) L. R. 6 Ex. 269, 40 L. J. C. P. 1. L. J. Ex. 172. (n) Per Montague Smith J. at p. 7. contract of employment made with the firm. Tasker V. Shepherd, 6 H. & N. 575; Cowasjee Manabhov r. Lallbhoy Vullubhov, 3 Ind. App. 200; Brace r. Calder, [1895] 2 Q. B. 253; Hoev 7\ McEwan, "s Sess. Cas. (3d Ser.), 814: Griggs r. Swift, 82 Ga. 392; Greenburg v. Early, 30 Abb. K C. 300, 303. But see Phillips v. Alhambra Palace Co., [1901] 1 Q. B. 59; Hughes r. Gross. 166 Mass. 61; Nickerson v. Russell, 172 Mass. 584; Fereira v. Sayers, 5 W. & S. 210. The Louisiana Civil Code, art. 2007, provides that " all contracts for the hire of labor, skill, or industry, without any distinction, whether they cm be performed by any other as by the obligor, unless there is some special agreement to the contrary, are considered as personal on the part of the obligor, but heritable on the part of the obligee." See Tete v. Lanaux, 45 La. Ann. 1343. PERSONAL SERVICES. 545 effect that the performer's illness was an excuse, but that she was bound to give the plaintiff notice of it within a reasonable time. 'The sum recovered represented the excess of the plaintiff's expenses about giving notice of the postponement to the public and to persons who had taken tickets beyond what he would have had to pay if notice had been sent him by telegraph instead of by letter. The Court of Exchequer upheld the direction on the main point. The reason was thus shortly put by Bramwell B. " This is a contract to perform a service which no deputy could perform, and which in case of death could not be performed by the executors of the deceased : and I am of opinion that by virtue of the terms of the original bargain incapacity either of body or mind in the performer, without default on his or her part, is an excuse for non-performance" (p).^'^ The contract becomes void, not only voidable at option of party disabled. The same judge also observed, in effect, that *the contract be- [425 comes not voidable at the option of the party disabled from perform- ance, but wholly void. Here the player could not have insisted " on performing her engagement, however ineffectually that might have been," when she was really unfit to perform it. The other party's right to rescind htus since been established by a direct decision (q).^^ Notice should bs given to the other party. No positive opinion was ex- pressed on the other point as to the duty of giving notice. But it may be taken as correct that it is the duty of the party disabled to give the earliest notice that is reasonably practicable. Probably notice reasonable in itself could not be required, for the disabling accident may be sudden and at the last moment, and the duty must be limited to cases where notice can be of some use (r).^^ It further appears from the case that the effect of an omission of this duty is that the contract remains in force for the purpose only of recovering such damage as is directly referable to the omission. The decision also (p) (1871) L. R. 6 Ex. at p. 277. (r) Cp. the doctrine as to giving (q) Poussa7-d v. Spirrs rf Pond notice of abandonment to under- (1876) 1 Q. B. D. 410, 45 L. J. Q. B. writers, Rankin v. Potter (1872-3) 621. L. R. 6 H. L. 83, 121, 157, 42 L. J. C. P. 169. soDickev v. Linscott, 20 Me. 453: Spaldin.T r. Rosa, 71 N. Y. 40; Fenton v. Clark, 11 Vt. 557, 563; Green v. Gilbert, 2rWis. 395. But if his probable physical incapacity could be foreseen by a contractor such incapacity is no excuse. Jennings v. Lvons, 39 Wis. 553. 31 Leopold V. Salkev, 89 111. 412; .Johnson r. Walker, 155 Mass. 253; Powell V. Newell. 59 Minn. 406; Raley i\ Victor Co., 86 Minn. 438. 32 Where a contract of service is terminable on giving a certain number of days notice, if the servant becomes incapacitated to perform by vi majore, ). Alternative conditions, and default of parties; same law as for ordinary contracts. Alternative conditions, at any rate as to immediate impos- sibility, and conditions made impossible by the default of the parties, or otherwise than by the " act of God," are treated in the same way as direct promises.'*^ " When a condition becomes impossible by the act of the obligor, such impossibility forms no answer to an action on the bond"' (g).^o •' When tiie condition of an obligation is to do two things by a doy, and at the time of making the obligation both of them are possible, but after, and before the time when the same are to be done, one of the things is become impossible by the act of God, or by the sole act and laches of the obligee him- self; in this case the obligor is not bound to do the other thing that is possible, but is discharged of the whole obligation. Biit if at the time of making of the obligation one of the things is and the other of the things is not ])ossible to be done, he must perform that which is possible. And if in the first case one of the things become impossible afterwards by the act of the obligor or a sti-anger, the obligor must see that he do the other thing at his ])eril." " If the condition be that A. shall marry B. by a day. and before the day the obligor himself doth marry her: in this case the condition is broken. But if the obligee marry her before the day, the obligation is discharged "(r). " If a man is bound to me in 201. on condition that he pay me 10/., in that case if he tender me the money and 1 refuse he is altogether excused from the obligation, because the default is on my part who am the obligee '" (s). Indian Contract Act. The Indian Contract Act, s. 56, is so worded as to extend the rule in Taylor v. Caldwell to every kind of contract. (p) Besicicic V. Sicindells (1835) (r) Shepp. Touchst. 382. 392. Ex. Ch. 3 A. & E. 868, 53 R. R. 196. (s) Brian C.J. 22 Ed. IV. 26. iq) Per Cur. Besicick v. Sioindells, 3 A. & E. at p. 883, 53 R. R. 207. quent arrest and detention imder the law of the same State, or delivery of the principal by the Governor of the same State on reciuisition of the Governor of another state is such an act of the law as discharges the bail from liability. Smith V. Kitchens, 51 Ga. 15S; Medlin v. Commonwealth, 11 Bush, 605; Way i\ Wright, 5 ilet. 3SU; Fuller c. Davis, 1 Gray, 612; State v. Allen, 2 Humph. 258; State v. Adams, 3 Head, 259; Peacock v. State, 44 Tex. 11; Caldwell's Case, 14 Graft. 098; People v. Bartlett, 3 Hill, 570. Cp. Ingram v. State, 27 Ala. 17; Mix v. People, 26 111. 32; Wheeler v. Stale, 38 Tex. 173. See further as to excuses for non-performance of a bail bond, 99 Am. Dec. 216, n. 49 " The rule of law is that where the condition of a bond is to do one of two things, if one cannot be performed, unless it has become impossible by the act of the obligee, the obligor is bound to perform the other."' 3Iill Dam Foundry v. Hovcy, 21 Pick. 417. 443. T'O When a bond is exectited with a condition that it shall become absolute in case certain services are performed by the obligee within a specified time, the refusal of the obligor to accept performance will have the efi'ect of actual per- ffirmance. so far as to give the obligee a right of action upon the bond. Boardman v. Keeler, 21 Vt. 77; Tasker v. Bartlett, 5 Cush. 359. EXTENSION OF COMMON LAW. 559 This is a wide and (it must be assumed) a deliberate departure from the common law.^^ 51 There are a few cases in the United States which seem to involve a similar extension of the law by applying the rule of Taylor v. Caldwell to the con- templated means of performance, whatever their nature. " There are many cases holding that the continued existence of the means of performance, or of the subject-matter to which the contract relates, is an implied condition, and the rule seems to rest on the presumption that the par- ties necessarily intended an exception, and, as said in Dexter v. Norton, 47 N. Y. 62, it operates ' to carry out the intention of the parties under most circumstances, and is more just than the contrary rule.' '" Dolan v. Rodgers 149 N. Y. 489, 493. See also Clarksville Land Co. r. Harriman, 44 Atl. Eep. 527 (N. H.) : Herter c. Mullen, 1.59 N. Y. 28. Cp. Ashmore v. Cox, [18991 1 Q. B. 436; Robson V. Mississippi Logging Co.. 61 Fed. Rep. 893; Kevstone Lumber, &c. Co. r. Dole, 43 Mich. 370; Shear v. Wright, 60 Mich. 159: Eppens V. Littlejohn, 164 N. Y. 187; Ellis v. Midland Ry. Co., 7 Ont. App, 464. .360 MISTAKE. 438] ♦CHAPTER IX. Mistake. Part I. — Of Mistake in General. PAGE. 'Classification of conditions af- fecting validity of consent in agreement : Mistake, Fraud, &c., 561 A. Mistake in general, 564 ^Generally it is in itself inopera- tive either to avoid civil lia- bilities (Except in certain special cases, and except so far as in the case of pur- chase for value without no- tice ignorance is a condition of acquiring rights), 564 "Or to take away or alter existing rights, 570 PAGE. Or to alter construction of con- tract. Saving as to variation by mutual consent. Special cases where mistake im- portant, B. Mistake of Fact and of Law, Limits of the distinction : where certainly or probably not ap- plicable, Common mistake and rectifica- tion of instruments. Renunciation of rights, Recovering back money paid. 572 572 574 574 575 576 577 579 Part II. — Mistake as Excluding True Consent. Division of cases under this head. 581 A. Error as to nature of trans- action, 583 Thoroughgood's case, 583 Foster v. Mackinnon, 585 Cases in equity, 587 Error as to legal character of transaction. 589 B. Error as to the person of the other party. 590 Analogous doctrines: satisfaction by stranger. 593 Personal contracts not transfer- able. 594 Agency, 597 C. Error as to the subject- matter, 597 With regard to identity of spe- cific thing, 599 Inclusion of parcels by mistake on sale of land. 600 Contracts to take shares excep- tional, 602 Error with regard to kind, quan- tity, &c.. 603 Error in price, 605 606 609 Error as to quality inoperative imless material and common to both parties. Even if error of one party known to, but not caused by, the other. Cases distinguished where mis- description of estate on sale entitles purchaser to rescind, 611 Error as to existence of subject- matter, 611 Purchase of one's own property, 615 Herein of ignorance of law: Cooper V. Phibbs, Assignments of leases for lives, Where only one party is ignorant of the material fact, Where fundamental error pro- duced by fraud or misrep- resentation, Error as to sample in case of sale by sample, Remedies of party to void agree- ment, Election to adopt agreement, 615 617 617 619 619 620 621 MISTAKE. 561 Part III. — Mistake in Expressing True Consent. Correction of mistake in express- ing intention, G22 1. Rules of construction common to law and equity, 622 Effect given to general intent, 623 2. Peculiar rules of construction in equity, A. Restriction of general words, B. Stipulations as to time, Where time of essence of contract, Indian Contract Act there- on, C. Relief against penalties, 3. Peculiar defences and remedies derived from equity, A. Defence against specific performance, Effect of Statute of Frauds herein, of PAGE. instru- 625 625 626 628 629 629 633 633 635 Rectification ments. Oral evidence how far ad- missible. Real intention must be dis- tinctly proved, and com- mon to all parties, Quasi estoppel of one party acting as other's agent in framing instrument, Reformation of settlements, 642 Who is entitled to have deed rectified, 643 Rectification as alternative to cancellation, 644 Disentailing deeds, 644 Agreement executed by Court cannot be rectified, 644 Consent orders, 645 636 637 639 641 Paet I. Of Mistake in General. Conditions affecting reality or freedom of consent. Hitherto we have been dealing with perfectly general conditions for the formation or subsistence of a valid contract, and as a consequence of this the rules of law we have had occasion to explain are for the most part collateral or even paramount to the actual intention or belief of the parties. Apparent exceptions occur, but mostly in cases where the rules are found to be reducible to rules of construction. We have had before us, on the whole, the purely objective conditions of con- tract; the questions which must be answered before the law can so much as think of giving effect to the consent of the parties. We now come to a set of conditions which by comparison with the foregoing ones may be called subjective. The consent of the parties is now the central point of the inquiry, and our task is to examine how the legal validity of an agreement is affected when the consent or apparent consent is determined by certain causes. The existence of consent is ascertained in the first instance by the rules and principles set forth in the first chapter. When the re- quir'^ments there stated are satisfied by a proposal duly accepted, there is on the face of things a good agreement, and the mutual com- munications of the parties are taken as the expression of a valid consent. But we still require other conditions in order to make the 36 562 MISTAKE. consent binding on him who gives it, although their absence is in 439] general not to be assumed, and the party seeking to *enforce a contract is not expected to give affirmative proof that they have been satisfied. Not only must there be consent, but the consent must be true, full, and free. The reality and completeness of consent may be affected (a) by Ignorance, that is, by wrong belief or mere absence of information or belief as to some fact material to the agreement. Freedom of consent may be affected by fear or by the consenting party being, though not in bodily or immediate fear, yet so much under the other's power, or in dependence on him, as not to be in a position to exercise his own deliberate choice. Now the results are different according as these states of mind are or are not due to the conduct of the other party (or, in certain cases, to a relation between the parties inde- pendent of the particular occasion). When they are so, the legal aspect of the case is altogether changed, and we look to that other party's conduct or position rather than to the state of mind induced by it. We speak not of Mistake induced by Fraud, but of Fraud simply, as a ground for avoiding contracts, though there can be no Fraud where there is no Mistake. Classification and legal consequences of Mistake, Fraud, &c. We have then the following combinations : A. Ignorance. A. Not caused by act (5) of other party, is referred in law to the head of Mistake. Caused by act (b) of other party B. without wrongful intention. Misrepresentation. C. with wrongful intention. Fraud. B. Fear, or dependence excluding freedom of action. Not caused by acts of other party or relation between the parties. (Immaterial.) D. Caused by such acts. Duress or Coercion. E. By such relation. Undue influence. 440] *The legal consequences of these states of things are exceed- ingly various. (a) It is quite wrong, as Savigny Lord Cranworth. Boyse v. Rossbor- has shown, to say that a consent de- ough (1856-7) 6 H. L. C. at p. 44, termined by mistake, fraud, or coer- and per Lord Chelmsford, Oakes v. cion is no consent. Syst. §§ 114, Tiirqunnd (1867) L. R. 2 H. L. at 115 (3, 98 sqq.). If it were so the p. 349. agreement would be absolutely void (b) It will be seen hereafter that in Ml cases : a reductio ad absurdum omissions are equivalent to acts for which is no less complete for Eng- this purpose in certain exceptional lish than for Roman law. See per cases. GENERAL PRIXCIPLES, 563 A. Mistake does not of itself affect the validity of contracts at all (c). But mistake may be such as to prevent any real agreement from being formed ; in which case the agreement is void : or mistake may occur in the expression of a real agreement; in which case, subject to rules of evidence, the mistake can be rectified.^ There are also rules in the construction of certain species of contracts which are founded on the assumption that the expressions used do not correspond to the real intention (d). B. Contracts induced by misrepresentation are not void. In many cases, and under conditions depending on the nature of the contract, they are voidable at the option of the party misled, c. Contracts induced by fraud are not void, but voidable at the option of the party deceived, D, E, Contracts entered into under coercion or undue influence are iiot void, but voidable at the option of the party on whom coercion or undue influence is exercised. It is now seldom, if ever, necessary or useful to consider the former differences between the doctrines of the common law and those of equity. These topics have now to be considered in order. And first of Mistake. Tlie whole topic was formerly surrounded with a great deal of confusion in our books, though on the whole of a verbal kind, and more embarrassing to students than to practitioners. Exactly the same kind of confusion pre- vailed in the civil law (whence indeed some of it passed on to our own) until Savigny cleared it up in the masterly essay which forms the Appendix to the third volume of his System. The principles'^ there established by him have been fully adopted by later writers (e) , and appear to be in the main applicable to the law of England. *The difficulties which have arisen as well with us as in the civil law [441 may be accoimted for imder the following heads : (1.) Confusion of proximate with remote caiises of legal conseqeunces : in other words, of cases where mistake has legal results of its own with cases where it determines the presence of some other condition from which legal results follow, or the absence of some other condition from which legal results would follow, or even Avhere it is absolutely irrelevant. (2.) The assertion of propositions as general rules which ought to be taken with reference only to particular effects of mistake in particular classes of (c) Just as fear, merely as a state this does not concern English stu- of mind in the party, is in itself im- dents. Vangerow gives the general material. As Fear is to Coercion, so doctrine (Pand. § 83, 1. 116 sqq.) is Mistake to Fraud. Sav. Syst. 3. and its special application to con- 116. tract (ih. § 604, 3. 275) in a com- {d) P. *257, above. pact and useful form. For the old (e) Some of his conjectural deal- difficulties, cp. Grotius De lure B. et ings with specific anomalies in the P. 1. ii. c. 11, 6. " De pacto errantis Eoman texts are at least daring, but perplexa satis tractatio est." 1 This is quoted with approval in Curtis r. Albee, 167 N. Y. 360, 365. 564 MISTAKE. cases. Such are the maxim Xon videntur qui errant consentire and other simih\r expressions, and to some extent the distinction between ignorance of fact and of law (/) . (3.) Omission to assign an exact meaning to the term "ignorance of law" in those cases where the distinction between ignorance of law and ignorance of fact is material (the true rule, affirmed for the Roman law by Savigny, and in a slightly different form for English law by Lord Westbury (g), being that " ignorance of law " means only ignorance of a general rule of law, not ignorance of a right depending on questions of mixed law and fact, or on the true construction of a particular instrument). It is needless to point out in detail how these influences have operated on our books and even on judicial expressions of the law. We rather proceed to deal with the matter affirmatively on that which appears to us its true footing. A. Mistal'e in general. General rule: Mistake as such inoperative. The general rule of pri- vate law is that mistake as such has no legal effects at all. This may be more definitely expressed as follows: When an act is done under a mistake, the mistake does not either add anything to or take away anything from the legal consequences of that act either as regards any right of other persons or any liability of the person doing it, nor does it produce any special consequences of its own; 4q-2] * Except where knov/ledge is a condition precedent of legal consequences. Unless knowledge of something which the mistake prevents from being known, or an intention necessarily depending on such knowl- edge, be from the nature of the particular act a condition precedent to the arising of some right or duty under it. Special exceptions to the rule exist, but even these are founded on special reasons beside, though connected with, the mistake itself. There are abundant examples to show the truth of this proposition in both its branches. As to the position of the person acting under mistake. First, mistake is in general inoperative as to the legal position or liability of the party doing an act. We must premise that a large class of cases is altogether outside this question, as appears by the qualification with which the rule has just been stated; those, namely, where a liability attaches not to the doing of an act in itself, but to the doing of it Ji-notoingly. There, if the act is done without knowledge, the offence or wrong is not committed, and no liability arises. It is not that (f) See Savignv's Appendix, Xos. in the later case of Ea^l Brnuchamp VII., VIII. Syst. 3. 342, 344. v. Winn (1R73) L. R. 6 H. L. 223, (g) Cooper V. Phihhs (1867) L. R. really add little or nothing. 2 H. L. at p. 170: to which the dicta IGNORANCE NO EXCUSE, 5G5 ignorance is an excuse for the wrongful act, but that there is no wrongful act at all ( /; ) . "Wrongful acts: ignorance in general no excuse. It is certain that igno- rance is as a rule no excuse as regards either the liabilities of a quasi- criminal kind which arise under penal statutes (i) or such as are purely civil. Thus ignorance of the real ownership of property is no defence to an action for its recovery, except for carriers and a few other classes of persons exercising public employments of a like nature, who ])y the necessity of the case *are specially privi- [443 leged (k).^ Again, railway companies and other employers have in many cases been held liable for acts of their servants done as in the exercise of their regular employment, and without any lawful intention, but in truth unlawful by reason of a mistake on the part of the servant : the act being one which, if the state of circumstances supposed by him did exist, would be within the scope of his lawful authority (l).^ Of course the servant himself is equally liable. Here, indeed, it looks at first sight as if the mistake gave rise to the employer's liability. For the act, if done with knowledge of the facts, and so merely wrongful in intention as well as in effect, would no more charge the employer than if done by a stranger. But it is not that mistake has any special effect, but that knowledge, where it exists, takes the thing done out of the class of authorized acts. ih) The wider question how far pleaded in discharge of statutory and under what conditions ignorance penalties, see Carter v. McLaren of fact excludes criminal liability is (1871) L. R. 2 Sc. & D. 125-6. beyond the scope of this work, and (A.-) Fowler v. HoUins (1872) Ex. too important to be discussed inci- Ch., L. R. 7 Q. B. 616, aflfd. in H. L. dentally. See thereon Stephen's Di- iwm. Rollins v. Foicler (1874-5) L. gest of Criminal Law. Art. 34, Reg. R. 7 H. L. 757. V. Prince (1875) L. R. 2 C. C. R. (l) See Pollock on Torts, 6th ed. 154. 44 L. J. M. C. 122: and consult 87—90. The latest reported deci- O. W. Holmes, The Common Law, p. sion of this class is Ranson v. ^Valler 49 sqq. riOOl] 1 K. B. 390, 70 L. J. K. B. (i) That ignorance cannot be 231. 2 Barker r. Furlong, [1891] 2 Ch. 172; Consolidated Co. r. Curtis, [1892] 1 Q. B. 495: Moore r. Hill, 38 Fed. Rep. 330: Rogers r. Huie, 1 Cal. 429; Swim r. Wilson. 90 Cal. 126: Rogers r. Skipworth. 23 Ind. 311: Fort r. Wells, 14 Ind. App. 531: Coles v. Clark, 3 Cush. 399; Robinson r. Bird, 158 Mass. 357; Koch v. Branch. 44 Mo. 542; Kramer v. Faulkner, 9 :Mo. App. 34; Bercich r. Marye, 9 Nev. 312: W'illiams v. Merle. 11 Wend. 80: Hoffman v. Carow, 22 Wend. 285; Pease r. Smith, 61 X. Y. 477: Courtis v. Cane, 32 Vt. 232. Cp. Abernathv r. Wheeler, 92 Kv. 320 : Frizzell r. Bundle. 88 Tenn. 396. 3 See Hershey r. O'Xeill, 36 Fed. Rep. 168; Blumenthal v. Shaw. 77 Fed. Rep. 954. 950; Little Rock, etc., Co. r. Walker, 65 Ark. 144; Higgins v. Railway Co., 98 Ga. 751; Laird r. Farwell. 60 Kan. 512: Barabasz r. Kabat, 86 Md." 23: President r. Green, ^Pi Md. 161: Driscoll r. Carlin, 50 X. J. L. 28; Staples v. Schmid, 18 R. I. 224; Railway Co. v. Conder, 23 Tex. Civ. App. 488. 5G6 MISTAKE. The servant who commits a wilful and gratuitous wrong, or goes out of his way to do something which if the facts were as he thought might be lawful or even laudable, but which he has no charge to do, is no longer about his master's business. Exceptions in judicial process, but limited. Eeal exceptions are the fol- lowing: — An officer of a court who has quasi- judicial duties to per- form, such as those of a trustee in bankruptcy, is not personally answerable for money paid by him under an excusable misappre- hension of the law (in). Also an officer who in a merely ministerial capacity executes a process apparently regular, and in some cases a person who pays money under compulsion of such process, not know- ing the want of jurisdiction, is protected, as it is but reasonable that he should be (n).* But this special exception is confined within 444] *narrow bounds. Mistake as to extraneous facts, such as tho legal character of persons or the ownership of goods, is no excuse. It is "a well-established rule of law that if by process the sheriff is desired to seize the goods of A., and he takes those of B., he is liable to be sued in trover for them" (o).^ A sheriff seized under a f. fa. goods supposed to belong to the debtor by marital right. Afterwards the supposed wife discovered that when she went through the ceremony of marriage the man had another wife living: consequently she was still the sole owner of the goods when they were seized. There- upon she brought trover against the sheriff, and he was held li;i])le, though possibly the plaintiff might have been estopped if she had asserted at the time that she was the wife of the person against whom the writ issued (p). The powers of a Superior Court, under express rules or otherwise, to correct slips in its own proceedings, is on a different footing: but it is not exercised indiscriminately (q). Ignorance in certain cases condition of acquiring rights: (purchase for value without notice). There are certain classes of cases in which it may be eaid that mistake, or at any rate ignorance, is the condition of ac- (m) Ex parte Oqle (1873) L. R. 700, 33 R. R. 294, 207; cp. Garland 8 Ch. 711, 42 L. J. Bk. 99. v. Carlisle (1837) 4 CI. & F. 693. (n) See Mayor of London V. Cox (p) Glasspoole v. Young (1829) 9 (1866) L. R. 2 H. L. at p. 269, 36 B. & C. 696, 701, 33 R. R. 294, 298. L. J. Ex. 225. (q) Ainsicorth v. Wilding [1896] (o) Lord Tenterden C.J. Glass- 1 Ch. 673, 65 L. J. Ch. 4:32. poole V. Young (1829) 9 B. & C. 696, 4 That payment by a garnishee of a judgment against him void for \vant of jurisdiction is no protection against an action for the same debt by the at- tachment defendant, see Harmon v. Birchard, 8 Blackf. 418; Richardson v. Hickman, 22 Ind. 244 ; Robertson r. Roberts, 1 A. K. Marsh. 247 ; Loring v. Folger, 7 Gray, .505; Stimpson r. Maiden, 100 ^Nlass. 313; Laidlaw v. Morrow, 44 Mich. .547: Ford v. Hurd. 4 S. & M. 683. 5 Pike V. Colvin, 67 III. 227 ; Burgin v. Burgin, 1 Ired. L. 160, 453. IGNORANCE AS CONDITION OF TITLE. 567 ^quiring legal or equitable rights. These are the exceptional cases in which an apparent owner having a defective title, or even no title, can give to a purchaser a better right than he has himself, and which fall partly under the rules of law touching market overt and the transfer of negotiable instruments, partly under the rule of equity that the purchase for valuable consideration without notice of any legal estate, right, or advantage is " an absolute, unqualified, un- answerable defence " (r) against any claim to restrict the exercise or enjoyment of the legal rights so acquired {s), *These rules [445 -depend on special reasons. The two former introduce a positive exception to the ordinary principles of legal ownership, for the pro- tection of purchasers and the convenience of trade.^ It is natural and necessary that such anomalous privileges should be conferred only ■on purchasers in good faith. Now good faith on the purchaser's part presupposes ignorance of the facts which negative the vendor's appa- rent title. It may be doubted on principle, indeed, whether this igno- rance should not be free from negligence (in other words, accom- panied with "good faith " in the sense of the Indian Codes), in order to entitle him. For some time this was so held in the case of nego- tiable instruments, but is so no longer (t). The rule of equity, tliough in some sort analogous to this, is not precisely so. A. trans- fers legal owmership to B., a purchaser for value, by an act effectual for that purpose. If in A.'s hands the legal ownership is fettered by an equitable obligation restraining him wholly or partially from the beneficial enjoyment of it, this alone will not impose any re- striction upon B. For all equitable rights and duties are, in their origin and proper nature, not in rem but in personam: they confer ■ ohligationes not dominia. But if B. (by himself or his agent) knows (r) Pilcher v. Rawlins (1872) L. rights. But it does not apply to E. 7 Ch. 259, 269, 41 L. J. Ch. 485, those remedies for the enforcement per James L.J. ; Blackwood v. Lon- of legal rights which in a few cases don Chartered Bank of Australia have been administered by courts of (1874) L. R. 5 P. C. 92, 111, 43 L. J. equity concurrently with courts of P. C. 25. law. Per Lord Westbury, Phillips v. (s) This applies not only to purely Phillips (1861) 4 D. F. & J. 208, 31 equitable claims but to all purely L. J. Ch. 321. equitable remedies incident to legal (t) See Chap. V., p. *229, above. 6 " We are not aware that this Saxon institution of market overt, which con- trols and interferes with the application of the common law, has ever been recognized in any of the United States, or received any judicial sanction." Ventress v. Smith, 10 Pet. 161, 176; Fawcett r. Osborn, 32 111. 411; Browning r. Magill, 2 H. & J. 308; Coombs r. Gorden, 59 Me. Ill; Dame v. Baldwin, 8 Mass. 518; Bryant r. Whitcher, 52 N. H. 158; Wheelwrisrht v. Depeyster, 1 Johns. 471 ; 2 Kent, 324; Mowrey r. Walsh, 8 Cow. 238; Hoffman v. C'arow, 20 Wend. 21; 22 Wend. 2S5, 294;" Roland r. Gundv. 5 Ohio, 202; Easton v. 'Worthington, 5 S. & R. 130; Griffith v. Fowler, 18 Vt. 390. 568 MISTAKE. of the equitable liability, or if the circumstances are such that with reasonable diligence he would know it, then he makes himself, actively by knowledge, or passively, by negligent ignorance, a party to A.'s breach of duty. In such case he cannot rely on the legal right derived from A., and disclaim the equitable liability which he knew or ought to have known to attach to it: and the equitable claim is no less enforceable against him than it formerly was against A. To be accurate, therefore, we should say not that an exception against 446] equitable *claims is introduced in favour of innocent pur- chasers, but that the scope of equitable claims is extended against purchasers who are not innocent; not that ignorance is a condition of acquiring rights, but that knowledge (or means of knowledge treated as equivalent to actual knowledge) is a condition of being laden with duties which, as the language of equity has it, affect the conscience of the party (ii).'' Limits of these exceptional rights. Even here the force and generality of the main rule is shown by the limits set to the exceptions. The purchaser of any legal right for value and without notice is to that extent absolutely protected. But the purchaser of an equitable in- terest, or of a supposed legal right which turns out to be only equi- table, must yield to all prior equitable rights (x),^ however blameless ( u ) Observe that on the point of possession of title deeds : Heath V. negligence the rule of equity differs Crealock (1874) L. R. 10 Ch. 22, 44 from the rules of law: though, as L. J. Ch. 157: Wakly y. Gray (1875) the subject-matter of the rules is L. E. 20 Eq. 238, 44 L. J. Ch. 394; different, there is no actual conflict. but now that the Court can adminis- {x) Phillips v. Phillips (1861) 4 ter both legal and equitable remedies D. F. & J. 208, 31 L. J. Ch. 321. A in every case this rule has lost its court of equity would not deprive a jiractical importance: Cooper V. purchaser for "^ value without notice Yesey (1882) 20 Ch. Div. 611, 632, of anything he had actually got, e.g. 51 L. J. Ch. 862. 7 See an article on Purchase for Value, bv Professor Ames, in 1 Harv. L. Eev. 1. 8 " Courts of equity follow the common-law rule in dealing with equit^ible interests; so that a purchaser Avho acquires only a right in equity takes it subject to all prior equitable claims, whether he had notice of them or not. It is only, therefore, when an equitable claim to property comes into compe- tition with the legal ownership, that the peculiar doctrines of equity, in regard to purchase for value without notice are called into action ; and even then the inquiry is not whether the equitable claimant, but whether the legal o\\Tier is a purchaser for value without notice. If he is, he takes the property dis- charged from the adverse equitable claim : if he is not. he is bound by it. In other words, purchase for value without notice is not a source of title, either legal or equitable, and is not commonly a material element of either: it is material only to one who is legal o\^•npr without it, and it is material to him onb- for the purpose of rendering his title unimpeachable in equity." Langdrll's Summarv of Eo. PL. S 140. And see Hinds r. Vnttier, 7 Pet. 252, 271: Boone r. Chiles. 10 Pot. 177. 210: O'Neal r. Seixas, S5 Ala. 80: Wailes r. Cooper, 24 Miss. 208 ; Durant r. Crowell, 97 N. C. 367 ; Anketel f . Converse, APPLICATIOX TO CONTEACTS. 569 or even unavoidable his mistake may liave been. Again, no amount of negligence will vitiate the title of a bona fide holder of a negotiable instrument, but not the most innocent mistake will enable him to make title through a forged indorsement.^ Where a bill was drawn payable to the order of one H. Davis and indorsed by another H. Davis, it was held that a person who innocently discounted it on the faith of this indorsement had no title (y). It might also be said that where tacit assent or acquiescence is in question, there ignorance is in like manner a condition of not losing one's rights. But this is not properly so. For it is not that ignorance avoids the effect of acquiescence, but that there can be no acquiescence without knowledge. It is like the case where *knowledge or intention [447 must be present to constitute an offence. In this sense and for this purpose "nulla voluntas errantis est ^' (z). Application of the general rule in cases of contract. The same princi- ples hold in cases more directly connected with the subject of this work. A railway company carries an infant above the age of three years without taking any fare, the clerk assuming him to be under that age, and there being no fraud on the part of the person in whose care he travels; the mistake does not exclude the usual duty on the com- pany's part to carry him safely (a). A person who does not correctly know the nature of his interest in a fund disposes of it to a purchaser for value who has no greater knowledge and deals with him in good faith ; if he afterwards discovers that his interest was in truth greater and more valuable than he supposed it to be, he cannot claim to have the transaction set aside on the ground of this mistake (h). This, however, is to be taken with caution, for it applies only to cases where {y) Mead v. Young (1790) 4 T. R. to a particular business or undertak- 28, 2 R. R. 314. ing, such as was the ground of the ac- (2;) D. 39. 3. de aqua pluv. 20. tion of assjimpsit in its original form. (a) Austin v. G. W. R. Co. (1869) See judgment of Blackburn J. and L. R. 2 Q. B. 442, 36 L. J. Q. B. 201. cp. the" remarks of Grove J. in The mother of the infant plaintitf Foulkes v. Metropolitan District Ry. took only one ticket for herself; it Co. (1880) 4 C. P. D. at p. 279, 49 seems that the contract operated in L. J. C. P. 361. Bigelow L. C. on favour of both (Lush J. L. R. 2 Q. B. Law of Torts, 615, and the present at p. 447). But the case is really writer's "Law of Torts," 515, 51S one of those on the border-line of (6th ed.). contract and tort, where the breach (5) Marshall v. ColJett (1835) 1 is not so much of a contractual duty Y. & C. Ex. 232, 41 R. R. 254. as of a general duty annexed by law 17 Ohio St. 11, 20; Elstner r. Fife, 32 Ohio St. 358; Chew r. Barnet, 11 S. & R. 389; Briscoe v. Ashbv, 24 Graft. 454, 475 sqq.; Downer v. Bank, 39 Vt. 25 ; Morehead r. Horner, 30 W. Va. 548. 9 Supra, p. 292, note 85 570 MISTAKE. the real intention is to deal with the party's interest, whatever it may be. The result would be quite different if the intention of both parties were io deal with it only on the implied condition that the srate of things is not otherwise than it is supposed to be, as we shall find under the head of Fundamental Error. So far, then, mistake as such does not improve the position of the party doing a mistaken act, Neither does it as a rule make 448] it any worse. A mistaken demiind *wh.ich produces no result does not affect a plaintiff's right to make the proper demand after- wards. Where B, holds money as A,'s agent to pay it to C, and ap- propriates it to his own use, C, may recover from A. notwithstanding a previous mistaken demand on B,'s estate, made on the assumption that B, would be treated as C's own agent (c). Xor does a mis- taken repudiation of ownership prevent the true owner of goods from recovering damages afterwards for injury done to them by the negligence of a bailee, whose duty it was to hold them for the true owner at all events (d). This is independent of and quite con- sistent with the rule that a party who has wholly mistaken his remedy cannot be allowed to proceed by way of amendment in the same action m an entirely different form and on questions of a different char- acter (e). As to existing rights of other persons. Next, mistake does not in gen- oral alter existing rights. The presence of mistake will not make an act effectual which is otherwise ineffectual. Many cases which at first sight look like cases of relief against mistake belong in truth to this class, the act being such that for reasons independent of the mistake it is inoperative. Thus a trustee's payment over of rents and profits to a wrong person, whether made wilfully and fraudulently, or igno- rantly and in good faith, cannot alter the character of the trustee's possession (f). Where the carrier of goods after receiving notice from an unpaid vendor to stop them nevertheless delivers them by mistake to the buyer, this does not defeat the vendor's rights: for the right of possession (g) revests in the vendor from the date of (c) Hard)/ v. Metropolitan Land (g) The book has property; but d Finance Co. (1872) L. R. 7 Ch. the word must here, as often, mean 427, 433, 41 L. J. Ch. 257. Cp. Van- onlj- right to possess. It is now gen- gerow, Pand. 1. 118. orally held that stoppage in transitu id) Mitchell V. Lancashire d does not rescind the contract: Yorkshire Ry. Co. (1875) L. R. 10 Schofsmans v. Lancashire d York- Q. B. 256, 261, 44 L. J. Q. B. 107. shire Ry. Co. (1867) L. R. 2 Ch. 332, ie) Jacohs \. ^eicard (1872) L. R. 340, 36 L. J. Ch. 361. [See also 5 H. L. 464, 41 L. J. C. P. 221. Kemp v. Falk, 7 App. Cas. 573; (f) Lister V. Pickford (1865) 34 Shephard v. Newhall. 54 Fed. Rep. Beav. 576, 582, 306; Shaw v. Lady Ensley, &c. Coal WHEN INOPEEATIVE. 571 the *notice, if given at such a time and under such circum- [449 stances that the delivery can and ought to be prevented (/i)/** and the subsequent mistake delivery has not, as an intentional wrongful delivery would not have, any power to alter it (i). Again, by the rules of the French Post-office the sender of a letter can reclaim it after it is posted and before the despatch of the mail. C, a banker at Lyons, posted a letter containing bills of exchange on England endorsed to D., an English correspondent. These were in return for a bill on Milan sent by D. to C. Before the despatch of the mail, learning from D.'s agent at Lyons that the bill on Milan would not be accepted and D. desired that no remittance should be made. C. sent to the post-office to stop the letter. It was put aside from the rest of the mail, but by a mistake of C.'s clerk in not completing the proper forms it was despatched in the ordinary course. It was held that there was no effectual delivery of the bills to D., and that the property remained in C. The mistake of the clerk could not take " the effect -of making the property in the bills pass contrary to the intention of both indorser and indorsee" (k). Had not the revocation been at the indorsee's request, then indeed the argument would probably have been correct that it was a mere uncompleted intention on C.'s part: ior as between C. and the post-office everything had not been done to put an end to the authority of the post-office to forward the letter in the regular course of post. Anderson s case (I) may possibly be supported on a *similar [450 ground. It was there held that a transfer of shares sanctioned by the directors and registered in ignorance that calls were due from the transferor might afterwards be cancelled, even by an officer of the company without authority from the directors, on the facts being Co. 147 111. 520; Rucker r. Donovan, (t) Lift v. Coirley (1810) 7 Taunt. 13 Kan. 251; Newhall v. Vargas, 15 109, 17 R. R. 482. Me. 314; Johnson r. Eveleth. 93 Me. (]c) Ex parte Cote (1873) L. R. 9 306: Rowley i: Bigelow, 12 Pick. 307, Ch. 27, 32, 43 L. J. Bk. 19. 313; Stanton v. Eager, 16 Pick. 467, (I) (1809) L. R. 8 Eq. 509. Sed ■475; Babcock V. Bonnell, 80 N. Y. qu. Lord Lindley, Avho Avas himself 244; Jordan V. James, 5 Ohio, 88, 98; counsel in the case, cites it (on Corn- Diem V. Koblitz, 48 Ohio St. 41; panies, 829) with the material quali- Chandler r. Fulton. 10 Tex. 2, 23 ; fication. " if the transferee does not Allen r. Willis. 60 Tex. 155.] object." The case is remarkable for (h) Whitehead V. Anderson (1842) the dictum (which ought never to « M. & W. 518, 11 L. J. Ex. 157; have been reported) that "fraud or Blackburn on Cont. of Sale, 269, 2nd mistake, either of them, is enough to •ed. by Graham, 384. vitiate any transaction.''' lOBethell v. Clark, 10 Q. B. D. 553; Bell v. Moss, 5 Wheat. 189; Allen V. Maine Cent. R. Co.. 79 Me. 327 ; Brewer Lumber Co. v. Boston, etc., R. Co., 179 Mass. 228; Hall v. Dimond, 63 N. H. 565; Mottram r. Heyer, 5 Den. 629; Rosenthal r. \Wir, 170 N. Y. 148; Jenks r. Fullmer, 160 Pa. 527. 573 MISTAKE. discovered. It may be that the directors' assent to the transfer is not irrevocable (apart from the question of mistake) until the parties have acted upon it. Subsequent conduct of parties founded on mistaken construction does not alter the contract. Again, the legal effect of a transaction cannot be altered by the subsequent conduct of the parties: and it makes no difference if that conduct is founded on a misapprehension of the original legal effect. A man who acts on a wrong construction of his own duties under a contract he has entered into, does not thereby entitle himself, though the acts so done be for the benefit of the other part}', to have the contract performed by the other according to the same construction (m). This decision was put to some extent upon the ground that relief cannot be given against mistakes of law. But it is submitted that this is not a case where the distinction is really material. Suppose the party had not construed the contract wrongly, but acted on an erroneous recollection of its actual contents, the mistake would then have been one of fact, but it is obvious that the decision must have been the same. Still less can a party to a con- tract resist the performance of it merely on the ground that he mis- understood its legal effect at the time (»).-^^ Every party to an in- strument has a right to assume that the others intend it to operate according to the proper sense of its actual expressions (o).^^ 451 ] * Unless such that apart from mistake it would amount to variation by mutual consent. It must be remembered, however, that where both parties have acted on a particular construction of an ambiguous docu- ment, that construction, if in itself admissible, will be adopted by the im) Midland G. W. Ri/. of Ireland (») Poicell V. Smith (1872) L. R. V. Johnson (1858) 6 H. L. C. 798, 14 Eq. 85, 41 L. J. Ch. 734. The 811, per Lord Chelmsford. On the dictum in Wycomhe Ry. Co. v. Don- other hand, one who takes a wider ninrfton Hospital (1806) L. R. 1 Ch. view of his rights under a contract 273, cannot be supported in any than the other party will admit, is sense contrary to this. free to waive that dispute and en- (o) Per Knight Bruce L.J. Benr- force the contract to the extent /ey v. J/ocA-ai/ (ISfiOi 4 D. F. & J. 285. which the other does admit: Preston Cp. Ch. VI., pp. *255, *256, above. V. Luck (1884) 27 Ch. Div. 497. 11 Hawralty v. \Yarren, IS X. J. Eq. 124. 12 Arnold r. Arnold, 14 Ch. D. 270. 284. "If parties understand an agree- ment differently, and neither of them makes known to the other his con- struction of it, and it is afterwards reduced to writing and duly executed, they are bound, in equity, as well as at law, by the terms of the written instru- ment, which in such cases is to be construed bv the court." Snwr-er r. Hovey, 3 Allen. 331. 333; Miller V. Lord. 11 Pick. 11; Deutsch r. Pratt. 149 Mass. 415. 420: Phillip v. Gallant, 62 N. Y. 256; Rickerson r. Insurance Co., 149 N. Y. 307; Johnston v. Patterson, 114 Pa. 398; Clark v. Lillie. 39 Vt. 405. OF COlvTSTEUCTIOX. 573 Court (p)-^^ To this extent its original effect, though it cannot be altered, may be explained by tlie conduct of the parties. And more- over, if both parties to a contract act on a common mistake as to the construction of it, this may amount to a variation of the contract by mutual consent (q). And a mistake of one party induced, though innocently, by the other has the same effect as a common mistake (r). This is in truth another illustration of the leading principle. Here the conduct of the parties in performing the contract with variations would deny an intention to vary it if the true construction were pres- ent to their minds. It might be said that they cannot mean to vary their contract if they do not know what it really is. But the answer is that their true meaning is to perform the contract at all events according to their present understanding of it, and thus the mistake is immaterial. Practically such a mistake is likely to repre- sent a real original intention incorrectly expressed in the contract : so that principle and convenience agree in the result. ip) Forhes v. ^Vatf (1872) L. R. 10 Ch. Div. 233, 241. 51 L. J. Ch. 2 Sc. & D. 214. Evidence of the 329. construction put on an instrument (q) 6 H. L. C. pp. 812-3. In the by some of the parties is of coiirse particvilar case the appellants were inadmissible: McCJean v. Kennard an incorporated companv, and there- (1874) L. R. 9 Ch. 336, 349. 43 L. J. fore it was said could 'not be thus Ch. 323. And a party who has acted boimd: srd qu. on one of two possible constructions (r) Wilding v. Sanderson [1897] of an obscure aj^reement cannot after- 2 Ch. .534, 6() L. J. Ch. 684, C. A. ; wards enforce it according to the Stewart v. Eennedi/ (No. 2) (1890) other: Marshall V. Berridge (1881) 1.5 App. Ca. 7-5, 108. 13 Chicago V. Selden, 9 Wall. 50, 54; Insurance Co. r. Butcher, do U. S. 209, 273; Topliff v. Toplifl', 122 U. S. 121; District of Columbia r. Galla- her, 124 U. S. .5-05 ; Xickerson v. Railroad Co., 3 McCrary, 455 ; Gron- .stadt r. Withoff, 21 Fed. Rep. 253; Central Trust Co. v. Railroad Co., 34 Fed. Rep. 254; Leavitt r. Windsor, etc., Co., 54 Fed. Rep. 439: San- ders r. Munson, 74 Fed. Rep. 649; Ljmian r. Kansas Citv R. Co.. 101 Fed. Rep. 636; Havdel v. Mutual Life Assoc., 104 Fed. Rep. 718;' Fitzgerald r. First Bank, 114 Fed. Rep. 474; Hall r. First Bank, 133 111. 234; Childer r. Bank, 147 Ind. 430; Stone r. Clarke, 1 Met. 378; Winchester r. Glazier, 152 Mass. 31G, 323; St. Louis Gas Light Co. r. St. Louis, 46 Mo. 121: Paxton v. Smith, 41 Neb. 56; .Jackson r. Perrine, 35 N. J. L. 137; Woolsev V. Funke, 121 N. Y. 87; Sattler v. Hallock. 160 N. Y. 291, 300; Mosier v. P'arrv. 6 Ohio St. 388; Coleman r. Grul)b, 23 Pa. 393, 409; Schlegel V. Herbein, 174 Pa. 504; Hosmer V. McDonald, 80 Wis. 54. It was held in National Water Works r. School District, 48 Fed. Rep. 523, that this doctrine was not applicable to the contracts of municipal corpora- tions where the public interest was involved. But see Thomas r. Railway Co., 81 Fed. Rep. 911; Cincinnati r. Cincinnati Gas Co., 53 Ohio St. 278. \'\liere tne meaning of the instrument is clear in the eye of the law, the <>rror of the parties cannot control its effect. Railroad Co. r. Trimble, 10 Wall. 367; Russell r. Young. 94 Fed. Rep. 45 (C. C. A.) : Hershev r. Luce, 56 Ark. 320; Gardner r. Caylor, 24 Tnd. App. 521; Insurance Co. r. Doll, 35 Md. 89; Glynn r. Moran, 174 Ma.ss. 233; St. Paul, etc., Rv. Co. r. Blackmar, 44 Minn. 5'l4; Humphrevs r. New York, etc., R. Co., 121'N. Y. 435; Borley V. McDonald, 69 Vt. 309. As to what constitutes ambiguity, see O'Brien r. ^Miller, 168 U. S. 287, 296. 574 MISTAKE. Forfeiture incurred by mistake. Again, mistake, in the sense of omis- sion by pure forgetfulness to do something that ought to have been done, is not a ground for a court of equity in its discretion (assuming that it has jurisdiction) to relieve against forfeiture (s). 452] *Special cases where mistake is of importance. What then are the special classes of cases in which mistake is of importance, and which have given rise to the language formerly current on the subject ? They are believed to be as follows : 1. As excluding true consent. Where mistake is such as to exclude real consent, and so prevent the formation of any contract, there the seeming agreement is void. Of this we shall presently speak at large (Part 2 of this chapter). 2. In expressing a true consent. Where a mistake occurs in express- ing the terms of a real consent, the mistake may be remedied by the equitable jurisdiction of the court. Of this also we shall speak sepa- rately (Part 3). 3. Renunciation of rights. A renunciation of rights in general terms is understood not to include rights of whose actual or possible existence the party was not aware. This is in truth a particular case- under No. 2. All these exceptions may be considered as more apparent than real. 4. Pa3mient of money. Money paid under a mistake of fact may be recovered back. This is a real exception, and the most important of all. Yet even here the legal foundation of the right is not so much the mistake in itself as the failure of the supposed consideration on which the money was paid : and the question is not of avoiding an existing obligation but of creating a new one. B. Mistal-e of Fact and of Law. Mistake of Fact and of Law. It is an obvious principle that citizens must be presumed for all public purposes to know the law,^^ or rather that they cannot be allowed to allege ignorance of it as an excuse. As has often been said, the administration of justice would (s) Barrow V. Isaacs [1891] 1 Q. B. 417, CO L. J. Q. B. 179, C. A. 14 See in 3 Harv, L. Rev. 165, a criticism as to this mode of stating the presumption. OF FACT AND OF LAW. 575 otherwise be impossible. Practically the large judicial discretion which can be exercised in criminal law may be trusted to prevent the rule from operating too harshly in particular cases. On the other hand it would lead to hardship and injustice not remediable by any judicial dis*cretion if parties were always to be bound in mat- [453 ters of private law by acts done in ignorance of their civil rights. There is an apparent conflict between these two principles which has given rise to much doubt and discussion (t). But the conflict, if in- deed it be not merely apparent, is much more limited in extent than has been supposed. How far the distinction applicable. It is often said that relief is given against mistake of fact but not against mistake of law. But neither branch of the statement is true without a great deal of limitation and explanation. AVe have already seen that in most transactions mistake is altogether without effect. There such a distinction has no place. Again, there are the many cases where, as we have pointed out above, knowledge or notice is a condition precedent to some legal conse- quence. By the nature of these cases it generally if not always hap- pens that the subject-matter of such knowledge, or of the ignorance which by excluding it excludes its legal consequences, is a matter of fact and not of law. The general presumption of knowledge of the law does so far apply, no doubt, that a person having notice of ma- (t) Savigny, folloAved by Van- 494. [Onondaga Bank r. United gerow and other later writers, States, 64 Fed. Rep. 703, 704; Brown strikes out a general rule thus: r. Tillinghast, 84 Fed. Rep. 71; Ruth- Where mistake is a special ground of erford r. Mclvor, 21 Ala. 750; De- relief (and there only), the right to vine v. Edwards, 87 111. 177: Brown such relief is excluded by negligence. v. C. C. & R. Gravel Road Co. 50 Ind. Ignorance of law is presumed to be 110: Lewellen v. Garrett. 58 Ind. the: result of negligence, but the pre- 442 : Appleton Bank r. INIcGilvray, 4 sumption may be rebutted by special Gray, 518: Stuart v. Sears, 119 Mass. circumstances, e.g., the law being 14.3; State Bank v. Buhl, 129 Mich, really doubtful at the time. There 193: Fraker r. Little, 24 Kan. 598; is much to be said for this doctrine Koontz v. Bank, 51 Mo. 275: Lyle v. on principle, but it Avill not fit Eng- Shinnebarger, 17 Mo. App. 66; Bank lish law as now settled on the most r. Eltinge. 40 N. Y. 391; Lawrence v. important topic, viz., recovering back Bank, 54 N. Y. 432 ; Mayer v. Mayor, money paid; for there, so long as the etc., of N. Y., 03 N. Y. 455; City ignorance is of fact, negligence is no Bank v. Nat. Bank, 45 Tex. 203; bar: means of knowledge are ma- Xeal i^ Read, 7 Baxt. 333; Guild v. terial only as evidence of factual Baldridge, 2 Swan, 295 ; Alston v. knowledge: Kelhi v. f^olari (1841) 9 Richardson, 51 Tex. 1. But see M. & W. 54. 11 L. J. Ex. 10: Town- contra, Brummitt r. McGuire, 107 N. sendv. Crowdy (1800) 8 C. B. N. S. C. 351.] See now for full' discus- 477. 29 L. J. C. P. 300. The only sion of Anglo-American authorities, limitation is that the party seeking Mr. M. M. Bigelow's notes to Story's to recover must not have wviived all Eq. Jnrisp. 13th ed. ss. Ill, 140; inquiry: per Parke B. 9 M. & W. 59; Keener on Quasi-Con tracts, Ch. 2. and per Williams J. 8 C. B. N. S. 576 MISTAKE. terial facts cannot be heard to say that he did not know the legal effect of those facts. All these, however, are not cases of relief against mistake in any correct sense. Where common mistake excludes real agreement, ignorance of private right is equivalent to ignorance of fact. Then come the apparent exceptions 454] to the general rule, *which we have numbered 1, 2 and 3. As to No. (1) it is at least conceivable that a common mistake as to a question of law should go so completely to the root of the matter as to prevent any real agreement from being formed. It is laid down by very high authority " that a mistake or ignorance of the law forms no ground of relief from contracts fairly entered into with a full knowledge of the facts (u) : but this does not touch the prior question whether there is a contract at all. On cases of this class English de- cisions go to this extent at all events, that ignorance of particular private rights is equivalent to ignorance of fact (v).^^ As to No. (2)^ tJie principle appears to be the same. Rectification of instruments: relief given against mistake of draftsman though not against a deliberate choice of the parties as to contents of instru- ments. A. and B. make an agreement and instruct C. to put it into legal form. C. does this so as not to express the real intention, either by misapprehension of the instructions or by ignorance of law. It is obvious that relief should be equally given in either ease. In neither is there any reason for holding the parties to a contract they did not really make. Authority, so far as it goes, is in favour of what is here ad- vanced (a-).^*' A common mistake of parties as to the effect of a par- (u) Bank of U. t^. y. Daniel {1838) Eaglesfiekl v. Marquis of London- (Sup. Ct. U. S.) 12 Peters, 32, 56; derry (1876) 4 Ch. D. 693. tut see Daniell v. Sinclair (J. C.) (v) Bingham v. Bingham (1748) 1 (1881) 6 App. Ca. 181, 190. The Ves. Sr. 126; Broughton v. Hutt language of modern American au- (18.58) 3 DeG. & J. 501; Cooper v. thority persists in the old sharp dis- Phihbs (1867) L. R. 1 H. L. 149, tinction: Upton V. Tribilcock (1875) 170; of which cases a fuller account 91 U. S. 45, 50. Common mistake as is given below. to a collateral matter of law does (x) Hunt v. Rousmaniere's Adni. Tiot of course avoid a contract: (1828) (Sup. Ct. U. S.) 1 Peters, 1, 13, 14. 15 See Jones r. Clifford, 3 Ch. D. 779, 792; Blakeman v. Blakeman. 39 Conn. 320: Baker r. Massey, 50 la. 399, 404; Gardiner v. Menage, 41 Minn. 417; Griffith r. To^^^lley, 69 Mo. 13; Freichnecht v. Meyer, 39 N. J. Eq. 551; King V. Doolittle, 1 Head, 77; Trigg v. Read, 5 Humph. 529; Harlan v. Central Phosphate Co., 62 S. W. Rep. 614 (Tenn. Ch.) ; Webb r. City Council of Alexandria, 33 Graft. 168, 175, 176. ic It is well established that relief will b^ given under such circumstances although the mistake arose from ignorance of law. Snell r. Insurance Co., 98 U. S. 85; Griswold r. Hazard, 141 U. S. 260, 284; Oliver V. Insurance OF LAW. '57? "ticular instrument is sufficient ground for varjdng a consent order founded on the mistaken opinion (y). Tliere is clear authority that on the other hand a court of equity will not reform an instrument by inserting in it a clause which the parties deliberately agreed to leave out (2)/^ nor substitute for the form of security the parties have chosen another form/^ which they deliberately *considered [455 and rejected (a), although their choice may have been determined by a mistake of law. The reason of these decisions is that in such cases the form of the instrument, by whatever considerations arrived at, is part of a real agreement. The parties have not been deprived by mistake or ignorance of the means of an effective choice of courses, but have made an effective choice which some or one of them after- wards mislikes. Renunciation of rights: distinction as to compromise or deliberate aban- donment. As to Xo. (3), there is quite sufficient authority to show that a renunciation of rights under a mistake as to particular ap- plications of law is not conclusive, and some authority to show that it is the same even if the mistake is of a general rule of law. The deliberate renunciation or compromise of doubtful rights is of course binding; it would be absurd to set up ignorance of the law as an (?/) AUcard v. Walker [1896] 2 (z) Lord Irnham v. Child (1781) Ch. 369, 65 L. J. Ch. 660. 1 Bro. C. C. 92. {a) See note (x), preceding *page. Co., 2 Curtis, 277, 298-9; Bailey v. Insurance Co., 4 McCrary, 221; Sampson V. Mudge, 13 Fed. Rep. 260; Abraham v. Insurance Co., 40 Fed. Rep. 717; Railway Co. v. Green, 114 Fed. Rep. 676; Larkins r. Biddle, 21 Ala. 252; Stedwell r. Anderson, 21 Conn. 139; Bank v. Insurance Co., 31 Conn. 517, 529; Butterfield r. McNamara, 54 Conn. 94; Dinwiddle V. Self, 145 111. 290 (cp. Atherton r. Roche, 192 111. 252) ; Nowlin v. Pyne, 47 la. 293; Reed v. Root, 59 la. 359 ; Courtright v. Courtright, 63 la. 356 ; Scales r. Ashbrook, 1 Met. (Ky.) 358; Lear v. Prather, 89 Ky. 501; Canedy v. Marcy, 13 Gray, 373; Benson v. Markoe, 37 Minn. 30; Green r. Railroad Co., 12 N. J. Eq. 165; McMillan v. Fish, 29 N. J. Eq. 610; Truesdell v. Lehman, 47 N. J. Eq. 218; Pitcher v. Hennessey. 48 X. Y. 415; McKay i-. Simpson, 6 Ired. Eq. 452; Kornegay v. Everett. 99 N. C. 30; Clayton r. Freet, 10 Ohio St. 544; Brock v. Odell, 44 S. C. 22; McKenzie JJ. McKenzie, 52 Vt. 271; Tabor v. Cillev, 53 Vt. 487; Green Bay Co. r. Hewitt, 62 Wis. 316; Bank v. Mann, 100 \Yis. 596. iTBetts r. Giinn, 31 Ala. 219; Clark v. Hart, 57 Ala. 390; Rector r. Collins, 46 Ark. 167; Hicks r. Coodv, 49 Ark. 425; Ligon's Admr. r. Rogers, 12 Ga. 281; Stafford r. Staunton, 88 Ga. 298; Andrew v. Spurr, 8 Allen, 412; Lee v. Kirby, 104 Mass. 420, 430; Mead r. Norfolk R. Co., 89 Va. 296; Braun v. Wisconsin Rendering Co., 92 Wis. 245. See Leonard r. Wills, 24 Kan. 231. Cp. Martin r. Railroad Co., 36 N. J. Eq. 109. 18 Hunt V. Rousmaniere's Admr., 1 Pet. I. " Where the parties adopt the security which is to be used to effectuate their intention^ if the security should fail, from ignorance of the law, or from any other cause, to operate as the parties intended, the courts cannot substitute any other security for the one adopted." Lanning r. Carpenter, 48 N. Y. 408 ; Hicks ;•. Coody, 49 Ark. 425 ; Baldwin r. Insurance Co., 60 la. 497 : Marshall v. Westrope. 98 la. 324; Leavitt r. Palmer, 3 N. Y. 19, 38; Greene v. Smith, 160 N. Y. 533. 37 578 MISTAKE. objection to the validity of a transaction entered into for the very reason that the law is not accnrately known (b).^^ A compromise deliberately entered into under advice, the party's agents and advisers having the question fully before them, cannot be set aside on the ground that a particular point of law was mistaken or overlooked (c). Conduct equivalent to renunciation of a disputed right is equally bind- ing, at least when the party has the question fairly before him. Thus in Stone v. Godfrey (d) the plaintiff had been advised on his title unfavourably indeed, but in such a way as to bring before him the nature of the question and give him a fair opportunity of considering whether he should raise it. Adopting, however, the opinion he had obtained, he acted upon it for a considerable time, and in a manner which amounted to representing to all persons interested that he had determined not to raise the question. It was held that although the mistake as to title might in the absence of such conduct well be a 456] ground of relief, a *subsequent discovery that the correctness of the former opinion was doubtful did not entitle him to set up his claim anew. In Eogers v. Ingliam (e) a fund had been divided between two legatees under advice, and the payment agreed to at the time. One of the legatees afterwards sued the executor and the other legatee for repayment, contending that the opinion they had acted upon was erroneous ; it was held that the suit could not be maintained. Similarly where creditors accepted without question payments under a composition deed to which they had not assented, and which, as it was afterwards decided, was for a technical reason, not binding on non-assenting creditors, it was held that they could not afterwards treat the payments as made on account of the whole debt, and sue for the balance. They might have guarded themselves by accepting the payments conditionally, but not having done so they were bound if). In Re Saxon Life Assurance Society (g) it was held that a creditor of a company was not bound by a release given in consideration of (b) Cp. the remarks on compro- (e) (187G) 3 Ch. Div. 351, 46 L. J. mises in Ch. IV., p. *193 above. Ch. 322. (c) Htewart v. Stewart (1830) 6 if) Kitclnn v. Eaiclcins (18G6) L. CI. & F. 911, 49 R. E. 267; see the R. 2 C. P. 22. authorities reviewed, 6 CI. & F. pp. (g) (1862) 2 J. & H. 408, 412 (the 966-970. 49 R. R. 276-279. Anchor case). (d) (1854) 5 D. M. & G. 76. 10 Rank r. Gearv. 5 Pet. 99. 114: Morris v. Munroe. 30 Ga, 630: Stover V. Mitchell, 45 111'. 213; Fisher v. May, 2 Bibb, 448: McClellan r. Kennedy, 8 Md. 230, 248: Hall v. Wheeler. 37':\[inn. 522; Warren r. Williamson, 's Baxt. 427; Smith v. Penn, 22 Gratt. 402. The rule is the same as to a mistake reorardincr n fact on the existence of which the parties take chances. Scars r. Grand Lodge, 163 N. Y. 374. MISTAKEN PAY^IENTS. 579 having the substituted security of another company, which security was a mere nullity, being given in pursuance of an invalid scheme of amalgamation. Here the mistake was obviously not of a general rule of law ; and perhaps the case is hest put on the ground of total failure of consideration (h).^^ Money paid by mistake recoverable only when the mistake is of fact. As to No. (-1), the subject of recovering back money paid by mistake does not properly fall within our scope. It is here, however, that the distinction between mistakes of fact and of law does undoubtedly prevail. While no amount of mere negligence avoids the right to re- cover back money paid under a mistake of fact (i), money *paid [457 under a mistake of law cannot in any case be recovered (l').~^ 'Not does anything like the qualification laid down by Lord Westbury in Cooper v. Phihhs (I) appear to be admitted. Ignorance of par- ticular rights, however excusable, is on the same footing as ignorance of the general law (m).^^ An important decision of the American Supreme Court appears to apsume that giving a negotiable instrument is for this purpose equiva- (7i.) In former editions some re- (t) Note {t) , -p. *4o3. supra. marks were made on M'Carthy v. (k) But as to re-opening accounts Decaix (1831) 2 Russ. & Mv. 614, 2 in equity, see Daniell v. Sinclair CI. & F. 5G8 n., 37 R. R." 2o0. as (J. C.) (1881) 6 App. Ca. 181. raising a diiliculty in this connexion. (l) (18G7) L. R. 2 H. L. at p. 170. As that case is no longer of authority ( ;;( ) See ^^kl/rinq v. Greenicuud (see Harvey v. Farnie (1882) 8 App. (182.5) 4 B. & C. 281, 28 R. R. 264; Ca. 43, 52. 60, 63, .52 L. J. P. 42), and cp. Piatt v. Bromage (18.54) 24 they are now omitted. L. J. Ex. 63, where however the mis- 20 Wliere a widow, under mistake as to her rights in her husband's estate, renounced the provision made for her by his Avill, and elected to take dower instead, but afterwards being informed of her rights, before distribution of the estate, but after the statutory period for making her election, applied to be allowed to recall her former election, and take under the will, it was held that the application should be granted. Evans' Appeal, 51 Conn. 435; Mack- net V. Macknet, 29 N. J. Eq. 54. 21 Lamborn v. County Commrs., 97 U. S. 181, 185; Jefferson County v. Hawkins, 23 Fla. 223 ; Arnold r. Georgia R. & B. Co., 50 Ga. 304 ; Downs v. Donnelly, 5 Ind. 496; Baldwin V. Foss, 71 la. 389; Painter v. Polk County, 81 la. 242; Norris r. Blethen, 19 Me. 348; Livermore V. Peru, 55 Me. 469; Schwarzenbach v. Odorless Excavating Co., 65 Md. 34; Erkens r. Xicolin. 39 Minn. 461; Pass r. Grenada County. 71 Miss. 426; Clarke r. Dutcher. 9 Cow. 674; Phelps v. Mayor, 112 N. Y. "^216; Vanderbeck v. Rochester, 122 N. Y. 285; Valley Ry. Co. r. Lake Erie Iron Co.. 46 Ohio St. 44; Real Est. Sav. Inst. V. Linder, 74 Pa. 371; Gould r. McFall, 118 Pa. 455; Harvey v. Girard, 119 Pa. 212; De la Cuesta r. Insurance Co.. 136 Pa. 62, 658: Gilliam r. Alford, 69 Tex. 267. But see Northrup r. Graves, 19 Conn. 548; Mansfield r. Lynch, 59 Conn. 320; Culbreath v. Culhrcath, 7 Ga. 64; Louisville v. Hen- ning, 1 Bush, 381; INIoulton r. Bennett, IS Wend. 586. 22 Gage r. Allen, 89 Wis. 98. A mistake as to the construction of a contract is a mistake of law. Cin- cinnati V. Cincinnati Gas Co., 53 Ohio St. 278. A mistake of foreign law is a 580 MISTAKE. lent to the pa3'ment of money, so that a party who gives it under a mistake of law has no legal or equitable defence (?i). But, accord- ing to later English doctrine, inasmuch as " want of consideration is altogether independent of knowledge either of the facts or of the law," the defence of failure of consideration is available as be- tween the parties to a negotiable instrument, whether the instrument has been obtained by a misrepresentation of fact or of law (o). A covenant to pay a debt for which the covenantor wrongly sup- poses himself to be liable is valid in law, nor will equity give any relief against it if the party's ignorance of the facts negativing his liability is due to his own negligence (p). Apparent exception in bankruptcy — Otherwise same rules in equity as at law. The Court of Bankruptcy will order repayment of money paid to a trustee in bankruptcy under a mistake of law : but this is no real 458] exception, for it is not like an ordinary *payment between party and party. The trustee is an officer of the Court and " is to hold money in his hands upon trust for its equitable distribution among ilie creditors" (q). In general the rule that a voluntary payment made with full knowledge of the facts cannot be recovered back is no less an equitable than a legal one: "the law on the subject was exactly the same in the old Court of Chancery as in the old Courts of Common Law. There were no more equities affecting the con- science of the person receiving the money in the one Court than in the other Court, for the action for money had and received proceeded take was not only a mistake of law, L. J. C. P. 145; Cotoard v. Hughes but collateral to the payment, the (1855) 1 K. & J. 443. money being really due; Aiken v. {p) Wason v. Warei7}g (1852) 15 £hort (1856) 1 H. & N. 210, 25 L. J. Beav. 151. Whether refief could be Ex. 321, rests on the same ground, given in any case, unless there were if the transaction in that case be re- fraud on the other side, qucere. garded as the bare payment of an- (q) Ex parte James (1874) L. R. other person's debt; if it be regarded fl Ch. 609, 614, per James L.J. 43 L. as the purchase of a security, it is J. Bk. 107. This holds even after an application of the rule caveat the money paid by mistake has been emptor, as to which cp. Clare v. distributed, if the trustee still has or Lamh (1875) L. R. 10 C. P. 334, 44 may have funds applicable for pay- L(. J. C. P. 177. ment of dividends: Ex parte Sim- (n) Bank of U. S. v. Daniel movds (1885) 16 Q. B. Div. 308, 55 (1838) 12 Peters. 32; but this was L. J. Q. B. 74; and it seems to ex- Bot the only ground of the decision. tend to all officers of the Court and (o) Southall v. Rigg, Forman v. all branches of the Supreme Court. Wright (1851) 11 C. B. 481. 492, 20 mistake of fact. Hallett r. New England Grate Co., 105 Fed. Rep. 217 ; Rosen- baum r. United States Credit System Co.^ 64 N. J. L. 34. And money paid under a mistake of foreign law may, therefore, be recov- ered back. Norton v. Marden, 15 Me. 45; Haven v. Foster, 9 Pick. 112; King V. Coolittle, 1 Head, 77, 85. EXCLUDING CONSENT. 581 upon equitable considerations'' (r)P Thus a party who has sub- mitted to pay money under an award cannot afterwards impeach the award in equity on the ground of irregularities which were known to him when he so submitted (s). It has also been laid down that in a common administration suit a legatee cannot be made to refund over-payments voluntarily made by an executor (t) : but the context shows that this was said with reference to the frame of the suit and the relief prayed for rather than to any general principle of law: moreover it was not the executor, but the persons beneficially in- terested, who sought to make the legatee liable.^* But in Bate v. Hooper (u)^^ the point arose distinctly: certain trustees were liable to make good to their testator's estate the loss of principle incurred by their omission to convert a fund of Long Annuities : they contended that the tenant for life ought to recoup them the excess of income which she had received: but as she had not been a willing party to any over-payment (.r), *it was decided that she could not be [459 called upon to refund the sums which the trustees voluntarily paid her. In an earlier case an executor paid interest on a legacy for several years without deducting the property tax, and it was held that he could not claim to retain out of subsequent payments the sums which he should have deducted from preceding ones (y). Part II. Mistake as excluding true Consent. Cases to be dealt with in this subdivision. In the first chapter we saw that no contract can be formed when there is a variance in terms be- tween the proposal and the acceptance. In this case the question whether the parties really meant the same thing cannot arise, for they (r) Rogers v. Ingham (1876) 3 (u) (1855) 5 D. M. & G. 338. Ch. Div. at p. 355, per James L.J. (x) She had in fact desired the (s) Goodman v. Bayers (1820) 2 trustees to convert the fund: see 5 Jac. & W. 240, 263, 22 R. R. 112. D. M. & G. 340. (/) Per Lord Cottenham. Lich- (y) Currie V. Goold (1817) 2 field V. Baker (1850) 13 Beav. 447, Madd. 163, 53 R. R. 33. 453. 23 Freeman v. Curtis, 51 Me. 140, 143; Claflin v. Godfrey, 21 Pick. 1, 6. But the appropriate remedy is an action at law, not a suit in equity. Lamb v. Cranfield. 43 L. J. Ch. (N. S.) 408; Sturgis r. Preston, 134 Mass. 372; Chapman r. Forbes, 123 N. Y. 532. See 1 Harv. L. Rev. 212. 24 "A person who receives money as his own from an executor, who pays it under a mistaken interpretation of his testator's will, is not liable, in an action for money had and received, to a person who was entitled under the will to receive the money." Moore v. Moore, 127 Mass. 22. See also Beam v. Copeland, 54 Ark. 70; People r. Foster, 133 111. 406; Phillips v. McConica, 59 Ohio St. 1. But the payment may be recovered by the executor or administra- tor if the mistake was one of fact. ]\Iansfield v. Lynch, 59 Conn. 320 ; Stokes V. Goodykoontz, 126 Ind. 535. 25 Cp. Davis 17. Ne\nnanj 2 Rob. (Va.) 664. 582 MISTAKE. Lave not even said the same thing-. A court of justice can ascertain a common intention of the parties only from some adequate expres- sion of it, and the mutual communication of different intentions is no such expression. We now have to deal vrith. certain kinds of cases in which on the face of the transaction all the conditions of a concluded agree- ment are satisfied, and 3'et there is no real common intention and therefore no agreement. Where no real common intention, each party meaning different thing. First, it may happen that each party meant something, it may be a perfectly well understood and definite thing, but not the same thing which the other meant. Thus their minds never met, as is not un- commonly said, and the forms they have gone through are inoperative. This is quite consistent, as we shall see, with the normal and necessary rule (Ch. VI., pp. *245, *246, above) that a promisor is bound by his promise in that meaning which his expression of it reasonably conveys. Where there is a common intention but founded on a common error. 'Next, it may happen that there does exist a common intention, which, 460] however, is founded on an assumption *made by both parties as to some matter of fact essential to the agreement. In this case the common intention must stand or fall with the assumption on which it is founded. If that assumption is wrong, the intention of the parties is from the outset incapable of taking effect. But for their common error it would never have been formed, and it is treated as non-existent. Here there is in some sense an agreement: but it is nullified in its inception by the nullity of the thing agreed upon. The result is the same as if the parties had made an agreement ex- pressly conditional on the existence at the time of the supposed state of facts: which state of facts not existing, the agreement destroys itself.26 In the former class of cases either one party or both may be in error : however, that which prevents any contract from being formed is not the existence of error but the want of true consent. " Two or more persons are said to consent when they agree upon the same thing in the same sense :" this consent is essential to the creation of a con- tract (z), and if it is wanting, and the facts be not otherwise such as to preclude one party from denying that he agreed in the sense iz) Hannen J. in Smith v. Hughes (1871) L. R. 6 Q. B. 609; Indian Contract Act, 1872, s. 13. s*? Approved in Xordvke v. Kehlor, 155 Mo. 643. 654; Irwin v. Wilson, 45 Ohio St. 426, 437. AS TO NATURE OF TRANSACTION. 583 of the other (a) , it matters not whether its absence is due to the error of one party only or of both. In the latter class of cases the error must be common to both parties. They do agree to the same thing, and it would be in the same sense, but that the sense they intend, though possible as far as can be seen from the terms of the agreement, is in fact nugatory. As it is, their consent is idle ; the sense in which they agree is, if one may so speak, insensible. In both sets of cases we may say that the agreement is nullified by fundamental error; a term it may be convenient to use in order to mark the broad distinction in *principle from those cases [461 where mistake appears as a ground of special relief. Divisions of fundamental error. We proceed to examine the different kinds of fundamental error relating : A. To the nature of the transaction. B. To the person of the other party, C. To the subject-matter of the agreement (&). A. Error as to the nature of the transaction. As to nature of the transaction — Thoroughgood's case. On this the prin- cipal early authority is Thorougligood's case (c). In that case the plaintiff, who was a layman and unlettered, had a deed tendered to him which he was told was a release for arrears of rent only. The deed was not read to him. To this he said, " If it be no otherwise I am content;" and so delivered the deed. It was in fact a general release of all claims. Under these circumstances it was adjudged that the instrument so executed was not the plaintiff^s deed. The effect of this case is "that if an illiterate man have a deed falsely read over to him, and he then seals and delivers the parchment, it is nevertheless not his deed" {d) f^ it was also resolved that "it is all (a) Hannen J. I.e., Blackburn J. any party for damage incurred by at p. 607. reiving on the validity of the act: (6) The German Civil Code has B. G. B. ss. 119— 122. taken a new and much simplified (c) 2 Co. Rep. 9 h. Cp. Shulter's course on the whole matter. Any case. 12 Co. Rep. 90 (deed falsely kind of "declaration of intention" read to a blind man), is voidable on the ground of funda- {d) Per Cur. L. R. 4 C. P. Til. mental error, even if the mistake Is It had been long before said, in 21 unilateral ; but voidable only, and Hen. VII., that " if I desire a man subject to the duty of compensating to enfeoff me of an acre of land in 27 Davis V. Snyder, 70 Ala. 315; Bank r. Webb, 108 Ala. 132; Yoek v. Insurance Co., Ill Cal. 503; Meyer v. Haas, 126 Cal. 560: Green v. Maloney, 7 Houst. 22; Brooks r. Matthews, 78 Ga. 739; Railroad Co. r. Schunick, 65 ID. 223; O'Donnell i\ Clinton, 145 Mass. 461; Adolph v. Minneapolis Ry. 584 MISTAKE. cne in law to read it in other words, and to declare the effect thereof in other manner than is contained in the writing : " but that a party 462] executing a deed without requiring it to *be read or to have its effect explained would be bound (c).-* Agreeably to this the law is stated in Sheppard's Touchstone, 56. But at present the mere reading over of a deed without an explanation of the contents would hardly be thought sufficient to show that the person executing it understood what he was doing (f).^^ Dale, and he tell me to make a deed An anonymoiLs case to the contrary, for one acre Avith letter of attorney, Skin. 159, is sufficiently disposed of and I make the deed for two acres, by Lord St. Leonards' disapproval and read and declare the deed to him (V. & P. 173). as for only one acre, and he seal the (e) I.e. to this extent, that he deed, this deed is utterly A'oid could not say it Avas not his deed, whether the feoffor be lettered or apart from any question of fraud or not, because he gave credence to me the like. and I deceived him." (Keihv. 70, h, if) Hoghton v. Hoghton (18.52) 15 pi. 6.) And see the older authorities Beav. 278. 311. In the case of a referred to in note (i), next page. will the execution of it by a testator Co., 58 Minn. 178; Wright v. MePike, 70 Mo. 175; Alexander v. Brogley, 62 N. J. L. 584. 63 N. J. L. 307; Jackson v. Hayner, 12 Johns. 469; Green r. North Buffalo Tchp., 56 Pa. 110; Schuylkill County v. Copley, 67 Pa. 386; Warner r. Landis, 137 Pa. 61; Coates v. Early, 46 S. C. 220; Cameron v. Estabrooks, 73 Vt. 73; Gross 17. Drager, 66 Wis. 150; Warder Co. r. Whitish, 77 Wis. 430. Contra, Hawkins r. Hawkins, 50 Cal. 558 (cp. Meyer v. Haas. 126 Cal. 560) ; Chicago, etc., Ry. Co. v. Belliwith, 83 Fed. Rep. 437 (cp. Great Northern Ry. Co. v. Kasischke, 104 Fed. Rep. 440, 449) ; Binford r. Bruso, 22 Ind. App. 512. See further a full note in 32 Am. L. Reg. (X. S.) 946. 28 Robinson r. Glass, 94 Ind. 211; Roach r. Karr, 18 Kan. 529; Leddy v. Barnev, 139 Mass. 394; Hallenbeck v. Dewitt, 2 Johns. 404; Bauer V. Roth, 4 Raw-le, 83, 94; Weller's Appeal, 103 Pa. .594. So one able to read is bound by a contract which he signs without reading. Hazard V. Griswold, 21 Fed. Rep. 178; Lumley r. Railway Co., 71 Fed. Rep. 21; Chicago, etc., Ry. Co. v. Belliwith, 83 Fed. Rep. 437; Railway Co. v. Green, 114 Fed. Rep.676; New York, etc., Ins. Co. r. McMa.ster, 87 Fed. Rep. 63, 67; Goetter r. Weil, 61 Ala. 387; Dawson v. Burns. 73 Ala. Ill; Martin V. Smith, 116 Ala. 639; Brooks r. Matthews, 78 Ga. 739: Jossey v. Railroad Co., 109 Ga. 439; Georgia Medicine Co. v. Hyman. 117 Ga. 851; Black v. Railway Co., Ill 111. 351; Rogers v. Place, 29 Ind. 577; Insurance Co. v. McWhorter, 78 Ind. 136; McCormick r. :\Iolburg. 43 la. 561; Bonnot Co. V. Newman, 108 la. 158; Insurance Co. v. Hodgkins. 66 Me. 109; Eldridge V. Dexter, etc., Co., 88 Me. 191: Liska r. Lodge, 112 Mich. 635; Dellinger r. Gillespie, 118 N. C. 737: Greenfield's Estate, 14 Pa. 489. 496; Railroad Co. V. Shav, 82 Pa. 198; Johnston v. Patterson, 114 Pa. 398; Bishop v. Allen, 55 Vt.'423. A court of equity, however, may in its discretion refuse to enforce such a contra-ct. McElroy r. Maxwell, 101 Mo. 294. And if the promisee was guilty of fraud the fraud will be a defense to an action by him, though the promisor was negligent in failing to read the contract. Warden r. Reser, 38 Kan. 86; Alexander r. Broglev, 62 N. J. L. 584, 63 N. J. L. .307: Smith v. Smith, l.M N. Y. 62. But "see Reid r. Bradley, 105 la. 220; Dowagiac Mfg. Co. r. Schroeder. 108 Wis. 109. 29 Persons dealing with an illiterate man must "show past doubt that he fully understood the object and import of the writings upon which they are proceeding to charge hiin." Selden r. ]\rvers, 20 How. 506, 509. See also Spelts V. Ward, 96 N. W. Rep. 56 (Neb.).* AS TO XATURE OF TRANSACTION. 585 Foster v. Mackinnon, The doctrine was expounded and confirmed by the luminous judgment of the Court of Common Pleas in Foster V. Mackinnon (g). The action was on a bill of exchange against the defendant as indorser. There was evidence that the acceptor had asked the defendant to put his name on the bill, telling him it was a guaranty; the defendant signed on the faith of this representation and without seeing the face of the bill. The Court held that the signature was not binding, on the same principle that a blind or illiterate man is not bound by his signature to a document whose nature is wholly misrepresented to him.^^ A signature so obtained " Is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature ; in otlier words, that he never intended to sign, and therefore in contempla- tion of law never did sign the contract to which his name is appended (h) . of sound mind after having had it and for the same reason, in a re- read over to him is evidence, but not script of Diocletian and Maximian : conclusive evidence, that he under- Si falsum instrumentum emptionis stood and ppproved its contents: conscriptum tibi, velut locationis Fulton V. Andreio (1875) L. R. 7 quam fieri mandaveras, subscribere H. L. 448, 460, sqq. 472, 44 L. J. P. te non relecto sed fidem habentem 17. suasit, nevitrum contractum, in {(]) (1869) L. R. 4 C. P. 704, 711, utroque alterutrius consensu deli- 38 L. J. C. P. 310. ciente, constitisse procul dubio est. (7i) The same rule is laid down, C. 4. 22. plus A'alere, 5. 30 Burroughs v. Pacific Guano Co.. 81 Ala. 255; Folmar v. Siler, 132 Ala. 297; Wenzel r. Schultz, 78 Cal. 221; Wood r. Cincinnati Co., 96 Ga. 120; Vanbrunt v. Singley, 85 111. 281; Auten i\ Grimer, 90 111. 300; Cline c. Guthrie, 42 Ind. 227; Webb v. Corbin, 78 Ind. 403; Mitchell r. Tomlinson, 91 Ind. 167; Lindley v. Hofman, 22 Ind. App. 237; Hopkins r. Insurance Co., 57 la. 203; Green 'v. Wilkie, 98 la. 74; Freedley r. French, 154 Mass. 339; Gibbs i\ Linabury, 22 Mich. 479; Anderson i\ Walter, 34 :Mich. 113; Soper V. Peck. 51 -Mich.' 563; Aultman v. Olson, 34 Minn. 450; Briggs r. Ewert, 51 Mo. 245; Martin r. Smylee, 55 Mo. 577; Bank v. Lierman, 5 Neb. 247; Willard r. Nelson, 35 Neb. 651; Alexander r. Brogley, 02 N. J. L. 584, 63 N. J. L. 307; Marden r. Dorthv, 160 N. Y. 39;' Porter v. Hardv, 10 N. Dak. 551; DeCamp r. Hamma, 29 Ohio St. 467; Walker r. Ebert, 29 Wis. 194; Griffiths r. Kellogg, 39 Wis. 290; Lord r. American Assoc, 89 Wis. 19; Keller v. Ruppokl, lls'Wis. 636. Cp. Bedell r. Hering, 77 Cal. 572; Bank V. Johns, 22 W. Va. 520; Dowagiac Mfg. Co. r. Schroeder, lOS Wis. 109. But if the person whose signature to a negotiable instrument has been so obtained was guilty of negligence in its execution, he cannot dispute its validity in the hands of an innocent holder for value, and the better opinion is, that, as against such a holder, a person who relies as to the chai'acter of the instrument solely upon the representations of the party at Avhose request he signs should be deemed negligent. Leach r. Nichols. 55 111. 273; Nebecker v. Cutsinger, 48 Ind. 436; Ruddell r. Dillman. 73 Ind. 518; Baldwin v. Barrows, 86 Ind. 351; Yeaglev r. Webb, 86 Ind. 424; Douilass r. Matting, 29 la. 498; Bank r. Steflfes, 54 la. 214; Ort v. Fowler. 31 Kan. 478; Abbott r. Rose, 62 Me. 194; Breckenridge v. Lewis, 84 Me. 349; Mackey v. Peterson, 29 Minn. 298; Shirts r. Overjohn, 60 Mio. 305; Dinsmore v. Slimbert, 12 Neb. 433; Bank v. Smith, 55 N.' H. 593; Chapman r. Rose. 56 N. Y. 137; DcCamp V. Hamma, 29 Ohio St. 467, 471; Ross v. Doland, 29 Ohio St. 473. 586 MISTAKE. . . The position that if a grantor or covenantor be deceived or misled as to the actual contents of the deed, the deed does not bind him, is supported by 463] many authorities: See Com. Dig. Fait {B. 2) (i), *and is recognized by Bayley li. and the Court of Exchequer in the case of Edwards v. Brown (k). Accordingly it has recently been decided in the Exchequer Chamber that if a deed be delivered, and a blank left therein be afterwards improperly filled up (at least if that be done without the grantor's negligence), it is not the deed of the grantor: Swan v. North British Anstralasian Land Com- ■pany (Z).3l These cases apply to deeds; but the principle is equally appli- cable to other written contracts." The judgment proceeds to notice the qualification of the general rule in the ease of negotiable instruments signed in blank, when the ■party signing liioivs ichat he is about, i. e., that the paper is after- v/ards to be filled up as a negotiable instrument ( »i ) P But here the defendant '' never intended to endorse a bill of exchange at all, but intended to sign a contract of an entirely different nature." He was no more bound than if he had signed his name on a blank sheet of paper, and the signature had been afterwards fraudulently mis- applied (n)."^ This decision shows clearly that an instrument exe- {i) Cited also by Willes J. 2 C. B. mere negligence from showing that a N. S. 024, and see 2 Ro. Ab. 28 S: deed is not reallv his deed. See per the cases there referred to (30 E. III. Byles J. 2 H. & C. 184, 32 L. J. Ex. 31 5; 10 H. VI. .5, pi. 10) show that 278, and per Cockburn C.J. 2 H. & C. the principle was recognized in 189, 32 L. J. Ex. 279. Mellish L.J. very early times. Cp. Fleta 1. G, c. in Hunter y. Walters (1871) L. R. 7 33 § 2. Si autem vocatus dicat quod Ch. 75, 87, 41 L. J. Ch. 175, men- carta sibi nocere non debeat .... tioned this question as still open ; vel quia per dolum advenit, ut si car- and see Halifax Union v. Wheel- tam de feoffamento sigillatam [qu. wright (1875) L. R. 10 Ex. 183. 192, sigillavit or sigillaverit] cum scrip- 44 L. J. Ex. 121. The negative an- tam de termino annorum sigillare swer seems to be the right one: cp. crediderit, vel ut si carta fieri debuit Onward Building Society V. Smith- ad vitam, illam fieri fecit in feodo et son [1893] 1 Cli. 1, 13, 14, 62 L. J. huiusmodi, dum tamen nihil sit quod Ch. 138, C. A. imperitiae vel negligentiae suae (m) Whether this is a branch of possit imputari, ut [qu. ut si] the general principle of estoppel or sigillum suum senescallo tradiderlt a positive rule of the law merchant vel uxori, quod cautius debuit cus- was much doubted in Hican v. Xorrh todivisse. British Australasian Land Co. (18G3) {k) (1831) 1 C. & J. 307, 312, 35 in the Court below, 7 H. & X. 003, R. R. 720. 725. 31 L. J. Ex. 425. In the present (?) (1863) 2 H. & C. 175, 32 L. J. judgment the Court of C. P. seems to Ex. 273. And it was there doiibted incline to the latter view, whether a man can be estopped by (») L. R. 4 C. P. at p. 712. 31 See Vaca Valley Co. r. Mansfield, 84 Cal. 560 : :McNeil v. Jordan, 28 Kan. 7; Chapman r. Veach, 32 Kan. 167; Golden v. Hardesty. 93 la. 622; Logan V. Miller, 106 la. 511; State r. Matthews, 44 Kan. 596; White v. Dugfjan, 140 Mass. 18; Pence r. Arbuckle, 22 Minn. 417; Garland r. Wells. 15 Xeb. "^98; Stefiian ;■. Milmo Bank. 69 Tex. 513; Schintz v. McManamy, 39 Wis. 299; Nelson r. McDonald, 80 Wis. 605. '■'2 See infra, p. 866 et seq. 33 Nance v. Lary, 5 Ala. 370; Wilson v. Miller, 72 111. 016; Caulkins i\ AS TO NATURE OF TRANSACTION. 587 cuted by a man who meant to execute not any such instrument but something of a different kind is in itself a mere nullity, though the person so executing it may perhaps be estopped from disputing it if there be negligence on his part (o) f*" and that, notwithstanding the *importance constantly attached by the law to the security [464 of hon-a fide holders of negotiable instruments, no exception is in this case made in their favour. Such questions in equity generally complicated with circumstances of fraud. The existence of a fundamental error of this sort, not merely as to particulars, but as to the nature and substance of the transactions, has seldom been considered by courts of equit)^ except in connection with questions of fraud from which it is not always practicable to disentangle the previous question, Was their any consenting mind at all? There is enough however to show that the same principles are applied. Kennedy v. Green. Thus in Kennedy V. Oreen (p) the plaintiff was induced to execute an assignment of a mortgage, and to sign a receipt for money which was never paid to her, " without seeing wJiat she vjas setting her hand to, by a statement that she was only completing her 'execution of the mortgage deed itself, or doing an act by which she would secure the regular payment of the interest upon her mortgage- money." Lord Brougham expressed a positive opinion that a plea of 11071 est factum would have been sustained at law under the circum- stances (q).^^ But his decision rested also on the defendant having (o) Cp. Simons v. Great Western The clerk's statement distinguishes Ri/. Co. (1857) 2 C. B. X. S. 620, this from the class of cases cited at where the plaintiff was held not pp. *48, *49, above. Where a person bound by a paper of sjjecial condi- intending to execute' his will has by tions limiting the company's respon- mistake executed a wrong document, sibility as carriers, which he had that document cannot be admitted to signed without reading it, being in probate even if the real intention fact unable at the time to read it would thereby be partially carried for want of his glasses, and being out: In the goods of Hunt (1875) assured bv the raihvav clerk that it L. R. 3 P. & D. 2r-,0. 44 L. J. P. 43. was a mere form. '• The whole ques- (p) (1834) 3 M. & K. 699, 41 R. tion was whether the plaintiff signed R. 176. the receipt knowing what he was {q) 3 M. & K. at pp. 717, 718, 41 about": per Cockburn C.J. at p. 624. R. R. 190, 191 (but see the follow- Whisler, 29 la. 495; First Bank r. Zeims, 93 la. 140. And see Baxendale v. Bennett, 3 Q. B. D. 525. Notes stolen before delivery give no right even to a lto)ia fide purchaser. Salley v. Terrill, 95 Me. 553*; Burson r. Huntington, 21 Mich. 415. But a contrary doctrine was laid down in Shipley v. Carrol, 45 111. 285, and seems to be enacted in the Negot. Inst. Law, § 35. See 14 Harv. L. Rev. 243. 3* See infra, p. 866 et seq. 35 Burlington Co. r. Evans Co., 100 la. 469; Aultman v. Olson, 34 Minn. 450. But see contra, Wall v. Muster's Exec, 23 Ky. L. Rep. 556. 588 MISTAKE. constructive notice of the fraud, and no costs were given to the plain- tiff, her conduct being considered not free from negligence. Vorley v. Cooke. In Torley v. Cool's (r) there were cross suits for 465] fore*closure and for cancellation of the mortgage deed. The alleged mortgagor had executed the mortgage deed at the instance of his solicitor, believing it to be a covenant to produce deeds. This mortgage so obtained was assigned to a purchaser for valuable con- sideration without notice, against whom no relief could have been given had the deed l)een only voidable (p. *4-i4, above). It was held that the deed was wholly void and no estate passed by it, and decreed accordingly that it must be delivered up to be cancelled. The some- what similar decision in Ogilvie v. Jeaffrcson (r) was mainly on the ground that the defendants were not purchasers without notice; the use of the words " wholly void *' is therefore immaterial. On the other hand, " When a man knows that he is conveying or doing something with his es- tate, but does not ask what is the precise effect of the deed, because he is told it is a mere form, and has such confidence in his solicitor as to execute the deed in ignorance, then a deed so executed, although it may be voida'de upon the ground of fraud., is not a void deed" (s).S6 ing note). Sir John Leach seems to v. Jackson (1886) 33 Ch. Div. 1; have thought the estate did pass: 3 and Lloyd's Bank, Ltd. V. Bulloch M. & K. p. 713, 41 R. R. 187. Hence [189G] 2 Ch. 192, 196, 6.5 L. J. Ch. the variance between the form of the G80. Empson's case (1870) (L. R. 9 decree alFirmed and Lord Brougham's Eq. 597, where no authorities appear view of the case. Stuart V.-C.'s re- to have been cited) seems distin- mark (2 GifT. 381) applies to the guishable. There the applicant M. R.'s judgment, not to Lord bought land of a building society Brougham's. and executed without examination. (r) (18.57) 1 Giff. 230, 27 L. J. mortgage deeds prepared by the so- Ch. 185; and see the reporter's note, ciety's solicitor to secure the price, p. 237. This decision seems to be These deeds contained recitals that within the authority of Thorough- he was a member, and treated the good's case (which curiously enough Avhole transaction as an advance by was not cited), at all events as since the society to one of its own mem- construed in Foster v. Mackinnon (p. bers. He was never admitted or oth- 462, above ) . However, James L.J. erwise treated as a member. Tlie intimated an opinion that a plea of Court held that he was not a con- no7i est factum could not have been tributory in the winding-up of the sustained at law either here or in society. Here the matter of the ficti- Kennedy v. Green: Hunter V. Wal- tious recitals was collateral to the ters (1871) L. R. 7 Ch. at p. 84; cp. main purjxise of the transaction. Ob- Ogilvie v. Jeaffrcson (1859-60) 2 serve that so far as the deed pro- GLT. 353. 29 L. J. Ch. 905. fessed to treat Empson as a share- (r) See preceding note. holder it was void, not only voidable: (s) Hunter V. Walters (1871) L. otherwise it would have been too late R. 7 Ch. 75; per Mellish L.J. at p. to repudiate the shares after the 88; cp. Xat. Prov. Bank of England winding-up order. 36 In Terry r. Tuttle, 24 Mich. 206, 211, 212, the court held that " If a per- son signs and acknowledges a deed, supposing it to be a lease, without reading the same, and thereby enables his grantee to sell to an innocent purchaser for value, he cannot as against the latter deny the validity of the deed." AS TO LEGAL CHARACTER OF TRAXSACTION. 589 A conveyance from A. to B., purporting to grant that *which [466 A. has already conveyed by deed, and being obtained by B.'s fraud, is not void as a deed, and may create an estate by estoppel if it con- tains sufficiently clear averments (t). A contractor must stand by the words of his contract, and, if he will not read what he signs, he alone is responsible for his omission {u). And it has been laid down that a man of business who executes " an instrument of a short and intelligible description cannot be per- mitted to allege that ho executed it in blind ignorance of its real character " (x).^'^ Probably this is to be taken as stating an inference of fact rather than a rule of law; but under such conditions the in- ference is irresistible. Error as to legal character of the transaction. There may also be a fundamental error affecting not the whole substance of the transac- tion, but only its legal character. It is apprehended that on principle a case of this kind must be treated in the same way as those we have already considered ; that is, if the two parties to a transaction con- template wholly different legal effects, there is no agreement : but this will not prevent an act done by either party from having any other effect which it can have by itself and which it is intended to ha\e by the party doing it. Thus if A. gives money to B. as a gift, and B. takes it as a loan, B. does not thereby become A.'s debtor (y),^^ but the money is not (O Onicard Building Soc. v. (y) But if B. communicates to A. l^mithson [1893] 1 Ch. 1, 62 L. J. liis intention of treating the money Ch. 138, C. A. as a loan, and A. assents, then there ill) Upton V. Trihilcock (187.">) 91 is a good contract of loan. See Rill U. S. 45. 50. v. ^Yilson (1873) L. R. 8 Ch. 888; (x) Per Lord Chelmsford C. per Mellish L.J at p. 896: where it Wyfhcs y. Lahouchere (1858-9) 3 De was held that an advance at first G. & J. 593, 601. intended to be a gift had in this way Gavagan v. Bryant, 83 111. 376; Quinn r. Brown, 71 la. 370. And see McNeil V. Jordan, 28 Kan. 7. Cp. McGinn v. Tobey, 62 Mich. 252 ; Marden v. Dorthy, 160 N. Y. 39. In Harris v. Smith, 40 Mich. 453, " a bill to set aside a deed which conveyed certain lands and a mortgage, on the ground that complain- ant had not examined it and did not know that it was a deed when she signed it, but was led to believe that it was a formal instrument for dividing certain personal property, was dismissed on her own showing that she had seen that it contained a description of land and reference to a mortgage." And cp. cases cited supra, p. 585, note 30. 37 " It will not do for a man to enter into a contract, and when called upon to abide by its conditions, say that he did not read it when he signed it, or did not know what it contained." Upton r. Tribilcock, 91 U. S. 45, 50; Stutz V. Handlev, 41 Fed. Rep. 531, 534; Insurance Co. r. Henderson, 69 Fed. Rep. 762, 768; Rovston v. Miller, 76 Fed. Rep. 50; Wagner v. National Ins. Co., 90 Fed. Rep.' 395, 407 ; Wallace i\ Chicago, etc., R. Co., 67 la. 547 ; Jackson v. Olney, 140 Mass. 195; Sanger v. Dun, 47 Wis. 615, 620; supra, p. 584, note 28. " 38 See Re Stevens' Est., 83 Cal. 322. 590 MISTAKE. 467] the loss effectually delivered to B. {z)P *So, if a baker who has ordered flour of A.'s receives by a warehouseman's mistake flour of B.'s, which is more valuable, and consumes it in good faith, he is not liable to B. for the true value (a).*^ We have seen however (p. *450), that mistake as to any particular effect of a contract depending on its true construction does not dis- charge the contracting party or entitle him to act upon his own erroneous construction. B. Error as to tJie person of tlie other party. Error in persona. Another kind of fundamental error is that which relates to the person with whom one is contracting. Where it is been turned into a loan, and was a intention free from error on the one good consideration for a promissory part and an assent on the other. But note subsequently given for the a wholly mistaken handing over of amount. money or goods passes no property: iz) Savignv, Syst. 3. 269: Paulus. R. w' Middleton (1873) L. R. 2 C. C. D. 44. 7. de o". et a. 3 § 1. Non satis R. 38, 44, 42 L. J. M. C. 73; Kings- autem est dantis esse numos et fieri ford v. Merry (185G) (Ex. Ch.) 1 H. accipientis, ut obligatio nascatur. & N. 503, 26 L. J. Ex. 83: and see sed etiam hoc animo dari et accipi Chapman v. Cole (1858) 12 Gray ut obligatio constituatur. Itaque si (Mass.) 141; R. v. Ashicell (18S5) quis pecuniam suam donandi causa 16 Q. B. D. 190, .55 L. J. M. C. 65. dederit mihi, quamquam et donantis [Jones V. State, 99 Ga. 46: State v. fuerit, et mea fiat, tamen non obli- Ducker. 8 Oreg. 394 : State v. Robin- gabor ei, quia non hoc inter nos son, 11 Tex. App. 403.] actum est. As to the transfer of the (a) Hills v. Snell (1870) 104 property being effectual (notwith- Mass. 173; cp. the somewhat similar standing Ulpian's opinion in D. 12 1. case put by Bramwell B. in R. V. de reb. cred. 18 pr.) cp. Julianus, D. Middleton (1873) L. R. 2 C. C. R. at 41. 1. de acq. rer. dom. 36. The rea- p. 56. son is that to that extent there is an 39 Where a party " purchased at an administrator's sale a drill machine, which, vmknown to all concerned, contained money and other valuables secreted there by the decedent, it was held that the sale passed to the pur- chaser the right to the machine, and every constituent part of it, but not to the valuables contained in it, which on discovery were to be held as treasure trove for the personal representatives of the deceased owner. Huthmacher i\ Harris' Admr., 38 Pa. 491. See also Cooper r. Commonwealth, 110 Ky. 123; Keron r. Cashman. 33 Atl. Rep. 1055 (N. J.) ; Durfce v. .Tones, 11 R. I. 588: Robinson v. State, 11 Tex. App. 403; 52 L. R. A. 136h. The owner of a gold coin issued by a private individual, and of the value of $10, passed it by mistake for half a dollar to A.; A., imder a like mistake, passed it to B. Held, That A. acquired no property in the gold piece, and could convey none to B. Chapman r. Cole, 12 Gray, 141 ; Filgo r. Pennv. 2 Murphey, 182. And see Gardner v. Lane, 9 Allen, 492 (stated infra, p. 603, note 60. 40 So. in a case of barter, where A. was imder an obligation to deliver to B. a specific quantity of grain, and in order to satisfv the obligation, placed the required amount of grain in B.'s bins without notifying B., who consumed it in ignorance of A.'s act, the obligation was held not discharged, since B. was entitled to inspect the grain to determine quality and quantity before accepting. Jenl-:ins v. Mapes, 53 Ohio St. 110. AS TO PERSON. 591 material for the one party to know who the other is, this prevents any real agreement from being formed (6). Such knowledge is in fact not material in a great part of the daily transactions of life, as for instance when goods are sold for ready money, or when a rail- Avay traveller takes his ticket : and then a mere absence of knowledge caused by complete indifference as to the person of the other party cannot be considered as mistake, and there can be no question of this kind. In principle, however, the intention of a contracting party is to create an obligation between himself and anotlier certain person, and if that *intention fails to take its proper effect, it cannot be [468 allowed to take the different effect of involving him without his con- sent in a contract with some one else. Boulton V. Jones. In BouUon v. Jones (c) an order for goods had been addressed by the defendants to a trader named Brocklehurst, who without their knowledge had transferred his business to the plaintiff Boulton. The plaintiff supplied the goods without notifying tJie change, and after the goods had been accepted sent an invoice in his own name, whereupon the defendants said they knew nothing of him. It was held that there was no contract, and that he could not recover the price of the goods. Possibly the person for whom the order was meant might have adopted the transaction if he had thought fit. But with the plaintiff there was no express contract, for the defendant's offer was not addressed to him; nor yet an implied one, for the goods were accepted and used by the defendants on the foot- ing of an express contract with the person to whom their offer was really addressed. The defendants might have had a set-off against the person with whom they intended to contract (c^-^^ (?)) Savigny. Syst. 3. 269; Fothier, followed in its full extent. But Obi. § 19, adopted by Fry J. in might it not be contended that ac- Smith v. Wheatcroft (1878) 9 Ch. cording to general usage a proposal D. at p. 230, 47 L. J. Ch. 745. If I addressed to a trader at his place of take a loan from A. thinking he is business for the supply of goods in B.'s agent to lend me the money the way of that business is. in the Avhen he is in truth C.'s there is no absence of anything showing special contract of loan, though C. may get personal considerations, a proposal back his money by condictio: D. 12. to whoever is carrying on the same 1. de reb. cred. 32. business continuously at the same (c) Boulton v. Jones (1857) 2 H. place and under the same name? & N. 564, 27 L. J. Ex. 117. And see (d) Cp. Mitchell v. Lapaqe (1816) Boston Ice Co. v. Potter (1877) 123 Holt N. P. 253, 17 R. R. 633. a some- Mass. 28, where Boulton v. Jones was what similar case, where the pvir- 41 If goods ordered of A. are furnished by B., and the buver becomes aware of this fact at any time before he has used the goods, he must pay for them. Cincinnati Gas Co. r. Western Siemens Co., 152 U. S. 200. 202 i Barnes v. Shoemaker, 112 Ind. 512; Orcutt i\ Nelson, 1 Gray, 536; Mudge v. Oliver, 592 MISTAKE. Personation. Again, if A. means to sell goods to B., and C. obtains delivery of the goods by pretending to be B.'s agent to make the con- 469] tract and receive the goods (e),'^ or if C, who is a *man of no means, obtains goods from A. by writing for them in the name of B., a solvent merchant already known to A., or one only colourably differing from it (f),'^ there is not a voidable contract between A. and C, but no contract at all; no property passes to C, and he can transfer none (save in market overt) even to an innocent purchaser. The pretended sale fails for want of a real buyer. There is only an offer on A.'s part to the person with whom alone he means to deal and thinks he is dealing. chaser, after notice, had treated the (1876) 3 Ch. D. 123, 45 L. J. Bk. •contract as subsisting. Analogous in 120: Edmunds V. Merchants' Des- some ways, but really having noth- patch Transport Co., 135 Mass. 283, ing to do with any rule specially re- decides that if A. in person obtains lating to mistake, is the class of goods by pretending to be B.. then, cases showing that a subsisting con- as A. is " identified by sight and tract cannot be performed by a per- hearing," property does pass. [See son with whom it was not made: also Emporia Bank V. Shotwell, 35 Robson v. Driimmond (1831) 2 B. & Kan. 300; Eobertson v. Coleman, 141 Ad 303, 30 E. R. 509; Humble v. Mass. 231; Land Trust Co. v. North- Hunter (1848) 12 Q. B. 310, 17 L. western Bank, 196 Pa. 230. Cp. Tol- J. Q. B. 350. man v. American Bank, 22 R. I. 402.] (c) Hardman v. Booth (1863) 1 Sed qu. and cf. Pothier, Obi. § 19. H. & C. 803, 32 L. J. Ex. 105; cp. So, if a man is persuaded to join a Kingsford v. Merry (1856) 1 H. & new company by fraudulently repre- N. .503, 26 L. J. Ex. 83; Hollins v. senting it to be identical with an Foii-lcr (1874-5) L. R. 7 H. L. 757, older company of similar name, he 763, 795. does not become a shareholder: (f) Lindsay v. Cundy, Cundy v. Baillic's case [1898] 1 Ch. 110, 67 Lindsay (1878) 3 App. Ca. 459, 47 L. J. Ch. 81. L. J. Q. B. 481 ; Ex parte Barnect 1 Allen, 74. If the goods are sold by the purchaser before he knows that they were furnished by B., B. may recover in money had and received, the price received for them. Burton Lumber Co. v. Wilder, 108 Ala. 669. See also Randolph Iron Co. r. Elliott, 34 N. J. L. 184. If the buyer discovers who is furnishing the goods before they are delivered, he may of course de- cline to receive them. IMitchell V. Lapage, Holt K P. 253; Barcus v. Dorries, 64 N. Y. App. Div. 109. 42Smath Typewriter Co. V. Stidger, 71 Pac. Rep. 400 (Col. App.): Alex- ander V. Schwackhamer, 105 Ind. 81; Decan r. Shipper. 35 Pa. 239; Hamet V. Letcher, 37 Ohio St. 356; Ednnmds r. Merchants' Desp. Transp. Co., 135 Mass. 283; Rodliff r. Dallinger, 141 Mass. 1; Hentz r. Miller, 94 N. Y. 64. And see Dean v. Yates, 22 Ohio St. 388; Moody r. Blake, 117 Mass. 23; Barker v. Dinsmore, 72 Pa. 427. Contra, Hawkins v. Davis, 8 Baxt. 506. But if A. sells goods to B., erroneously supposing him to be purchasing as agent for C, but A\ithout any representation or pretense on the part of B. that he was bviying as agent for another, the contract is valid and the title to the goods passes to B. Stoddard ?-. Ham, 129 Mass. 383. Cp. Ex parte Bar- nett, 3 Ch. D. 123. And see Ellsworth r. Randall, 78 la. 141; Huffman r. Long, 40 Minn. 473: Kavton r. Barnett. 110 N. Y. 625. 43 See Bruhl v. Coleman, 113 Ga. 1102; Pacific Express Co. v. Shearer, 160 111. 215; Oskamp r. Southern Express Co., 61 Ohio St. 341; Sword v. Young, 89 Tenn. 126. AS TO PERSOX. 593 Probably the principle cannot be extended to deeds. Whether any analo- gous doctrine applies to deeds is a question on which there does not seem to be any clear authority. We have seen that if a man seals and delivers (at any rate without culpable negligence) a parchment tendered to him as being a conveyance of his lands of Whiteacre, which is in fact a conveyance of his lands of Blackacre, it is not his deed and no estate passes. It might be argued that there is no reason why the insertion of a wrong party, if material, should not have the same result as the insertion of wrong parcels; and that if a man executes a conveyance of Whiteacre to A. as and for a conveyance of the same estate to B. it is equally not his deed. But the judgment in Hunter v. ^Yalters (g) is certainly adverse to such a view.'*'* Satisfaction by a stranger to the contract. It is on the same principle that a party to whom any*thing is due under a contract is not [470 bound to accept satisfaction from any one except the other contract- ing party, in person where the nature of the contract requires it (h), or otherwise by himself, his personal representatives, or his author- ized agent : and it has even been thought that the acceptance of satis- faction from a third person is not of itself a bar to a subsequent action upon the contract.*^ It seems that the satisfaction must be made in the debtor's name in the first instance and be capable of being ratified by him (i), and that if it is not made with his authority at the time there must be a subsequent ratification, which however need not be made before action (k). But these refinements have not been received without doubt (/) : and it is submitted that the law (g) (1871) L. E. 7 Ch. 75; supra, (i) James v. Isaacs (1852) 12 0. p. *465. On the other hand, "if A. B. 791, 22 L. J. C. P. 73; Lucas v. personating B. executes a deed in the Wilki)ison (1856) 1 H. & N. 420, 28 name of B. purporting to convey B.'s L. J. Ex. 13. property, no right or interest can (k) Simpson v. Eggington (1856) possibly pass by such an instrument. 10 Ex. 845, 24 L. J. Ex. 312 (ratifi- It is not a deed. It makes no diifer- cation by plea of payment or at the ence in law that A. had the same trial may be good), name as B. if the false personation is (l) See per ^Yilies J. in Cook v. established; still the instrument is Lister (1863) 13 C. B. X. S. 594, 32 not a deed, and that plea would be L. J. C. P. 121, who considered the a complete answer by B. or any one doctrine laid down in Jones v. Broad- claiming through him": Cooper v. hurst (next note) that payment by Vesey (1882) 20 Ch. Div. 611, 623, a stranger is no payment till assent, 51 L. J. Ch. 862. (Kay J.; affd. in as contrary to a weIl-kno\\Ti princi- C. A. 20 Ch. Div. 627.) pie of law': the civil law being the (h) See Rohinson v. Davison other way expressly, and mercantile (1871) L. R. 6 Ex. 269, 40 L. J. Ex. law by analogy: at the least assent 172. ought to be presumed (cp. L. R. 10 Ch. 416). 44 But see Terry r. Tuttle, 24 Mich. 206, 212. •45 See infra, p. 840. 38 594 I.IISTAKE. cannot depart in substance, especially now that merely technical ob- jections are so little favoured, from the old maxim " If I be satisfied it is not reason that I be again satisfied "(m). Assignment of contracts. So far the rule of common law. The power of assigning contractual rights which has long bc^n recognized in equity, and which under the Judicature Act, 1873 (s. 25, sub-s. 6) is now recognized as effectual in law, does not constitute a direct exception. For we are now concerned only to ascertain the existence or non-existence of a binding contract in the first instance. But on the other hand the limit set to this power (which we have already 471] considered *under another aspect) (n) may be again shortly referred to as illustrating the same principle. Generally speaking, the liability on a contract cannot be trans- ferred so as to discharge the person or estate of the original contractor,. unless the creditor agrees to accept the liability of another person instead of the first (o). The benefit of a contract can generally be transferred without the other party's consent, yet not so as to put the assignee in any better position than his assignor (oo). Hence the rule that the assignee is bound by all the equities affecting what is assigned. Hence also the " rule of general jurisprudence, not confined to choses in ac- tion , . . that if a person enters into a contract, and without notice of any assignment fulfils it to the person with whom he made the contract, he is discharged from his obligation" (p), and the various consequences of its application in the equitable doctrines as to priority being gained by notice. Rights founded on personal confidence cannot be assigned. Again, rights arising out of a contract cannot be transferred if they are coupled (m) Fitzh. Ab. tit. Barre, pi. 166, law: for (1) the transferor is not repeatedly cited in the modern cases immediately discharged: (2) the where the doctrine is discussed. See company is not always bound to in addition to those already referred register the transfer, to, Jo7WS V. Broadhurst (1850) 9 C. (oo) Or the other party in a worse B. 173; Bclshaw v. Bush (1851) 11 one than he was before: Tolhurst V. C. B. 191, 267, 22 L. J. C. P. 24. Associated Portland Cement Manu- (n) Ch. v., supra, p. *217, sqq. factnrers [1901] 2 K. B. 811, 70 L. (o) See p. *204, above. The ex- .J. K. B. 1036. [This decision waa ceptions to this are but partial. Tlius reversed by the Court of Appeals the assignor of leaseholds remains [1902] 2 K. B. 660: and on appeal liable on his express covenants: 1 to the House of Lords the validity of Wms. Saund. 298. A .stronger case the assignment was again upheld is the transfer of shares in a com- [1903] A. C. 414.] pany not fully paid up: but the spe- (p) Per Willes J. De XichnUs^v. cial statutory law governing these Satindcrs (1870) L. R. 5 C. P. 589 transactions has not altogether lost at p. 594, 39 L. J. C. P. 297. sight of the principles of the general AS TO PEESON. 595 with liabilities, or if they involve a relation of personal confidence such that the party whose agreement conferred those rights must have intended them to be exercised only by him in whom he actually con- fided (g).'^^ Thus one partner cannot transfer his share so as to force a new partner on the other members of the firm without their consent: all he can give to an assignee is a right to receive what may be due to the assignor on the balance of the partnership accounts, and if the partnership *is at will, the assignment dissolves it; if [472 not, the other partners may treat it as a ground for dissolution.'*^ And a sub-partner has no rights against the principal firm. " At the present day, no doubt, an agreement to pay money, or to deliver goods, may be assigned by the person to whom the money ie to be paid or the goods are to be delivered, if there is nothing in the terms of the contract, whether by requiring something to be afterwards done by him, or by some other stipulation, which mani- fests the intention of the parties that it shall not be assignable. But every one has a right to select and determine with whom he will con- tract, and cannot have another person thrust upon him without hiti consent " (r). In the same way a contract of apprenticeship is prima facie a strictly personal contract with the master;'*^ this construction may be (q) This statement was approved (r) Cur. per Gray J. Arkansas by the Supreme Court of the U. S. in Smelting Co. v. Belden Co. (1888) Arkansas Smelting Co. v. Belden Co. 127 U. S. 379, 387. (1888) 127 U. S. 379, 388. 46 Delaware County r. Diebold Safe Co., 133 U. S. 473; Burke v. Taylor, 152 U. S. 634, G51; The Lizzie Merry, 10 Ben. 140; Bancroft i'. Scribner, 72 Fed. Rep. 988; Sloan v. Williams, 138 111. 43; Sprankie c. Truelove, 22 Ind. App, 577, 590; Smalley r. Greene, 52 la. 241; Rappleye v. Racine Co., 79 la. 220; Worden u. Railroad Co., 82 la. 735; Schoonover v. Osborne, 108 la. 453; Shultz v. Johnson's Adnir., 5 B. Mon. 497; Clinton v. Fly, 10 Me. 292; Eastern Advertising Co. r. McGaw, 89 Md. 72 ; Lansden v. McCarthy, 45 Mo. lOG; Boykin v. Campbell, 9 Mo. App. 495; Redhefter v. Leathe, 15 Mo. App. 12; Hilton v. Crocker, 30 Neb. 707, 716; Kase v. Insurance Co., 58 N. J. L. 34; Thomas v. Thomas, 24 Oreg. 251; King v. Batterson, 13 R. I. 117; Palo Pinto County v. Gano, 60 Tex. 249; Hodgson v. Perkins, 84 Va. 706. Cp. Larne v. Groezinger, 84 Cal. 281; Devlin v. Mayor, 63 N. Y. 8 ; New Ensfland Iron Co. v. Railroad Co., 91 N. Y. 153, 167; Rochester Lantern Co. V. St'iles Co., 135 N. Y. 209, 210; Yorke v. Conde, 147 N. Y. 486; Vande- grift r. Cowles Engineering Co., 161 N. Y. 435: Liberty Paper Co. v. Stoner Co.. 59 N. Y. App. Div. 353. affd. without opinion in 170 N. Y. 582; Mitchell V. Tavlor, 27 Oreg. 377; Day r. Vinson, 78 Wis. 198. See also 18 Harv. L. Rev. 23. 47Matthewson r. Clarke. 6 How. 122: Miller r. Brigham, 50 Cal. 615; Marquand r. N. Y. Mfs:. Co.. 17 Johns. 525: Cochran v. Perry, 8 W. & S. 262: Horton's Appeal, 13 Pa. 66. 48 Tucker r. Magee, 18 Ala. 99; Davis V. Coburn, 8 Mass. 299; Futrell u. 590 MISTAKE. excluded however by the intention of the partieS;, e.g. if the master's executors are expressly named {s), or by custom {t). So if an agent appoints a sub-agent without authorit}^ the sub- agent so appointed is not the agent of the principal and cannot be fin accounting party to him (m).'*^ On the same principle it was held in Stevens v. Benning (x) that a publisher's contract with an author was not assignable without the author's consent. The plain- tiffs, who sought to restrain the publication of a new edition of a book claimed under instruments of which the author knew nothing, and which purported to assign to them all the copyrights, &c., therein mentioned (including the copyright of the book in question) and all the agreements with authors, &c., in which the assignors, with 473] whose firm the *author had contracted, were interested. It was decided that the instrument relied on did not operate as an assignment of the copyright, because on the true construction of the original agreement with the publishers the author had not parted with it: also that it did not operate as an assignment of the contract, because it was a personal contract, and it could not be indifferent to tlie author into whose hands liis interests under such an engagement were entrusted. In the plaintiffs, however trustworthy, the author had not agreed or intended to place confidence : with them, however respectable, he had not intended to associate himself (y).^'^ Similarly where persons contract to sell land as trustees, and it appears that their power to sell arises only on the death of a tenant for life who is still living, they cannot require the purchaser to take a conveyance from the tenant for life, from whom he never agreed to buy. This (s) Cooper v. Simmons (1862) 7 (x) 1 K. & J. 168, 6 D. M. & G. 223; H. & N. 707, 31 L. J. M. C. 138. followed in Hole v. Bradbury (1879) (/) Bac. Abr. Master and Ser- 12 Ch. D. 886, and applied to an in- vant, E. corporated company, Griffith v. (u) Cartit-right y. Hateley (1701) Tojrer Publishing Co. [1897] 1 Ch. 1 Ves. jun. 292. Cp. Indian Con- 21. tract Act, 1872, s. 193. (v) See 1 K. & J. at p. 174, 6 D. M. & G. at p. 220. Vann, 8 Ired. L. 402; Biggs r. Harris, 04 X. C. 413; Commonwealth r. Leeds, 1 Ashm. 405 ; Stringfield v. Heiskell, 2 Yerg. 546. A contract for personal services is not assignable. Chapin v. Longworth, 31 Ohio St. 421; Davenport v. Gentry's Admr., 9 B. Mon. 427. 49 De Bussche r. Alt, 8 Ch. D. 286, 310. Xor can the subagent recover com- pensation from the principal. Hanback v. Corrigan, 7 Kan. App. 479 ; Cleaves v. Stockwell, 33 Me. 341; iearn i: Mayers, 53 Miss. 458; Hill v. Morris, 15 Mo. App. 322. 50 But in C. F. Jewett Publishing Co. v. Butler, 159 Mass. 517, it was held that the fact that C. F. Jewett, the president of the corporation, for whom the corporation was named, had been guilty of criminal conduct and had absconded, did not excuse the performance by an author of a contract to give a book to the corporation for publication. AS TO SUBJECT-MATTER. 597 would be not merely adding a party to the conveyance, but forcing a wholly new contract on the purchaser (z). Peculiarities in law of agency. The law of agency, which we have al- ready had occasion to consider (a), presents much more important and peculiar exceptions. Here again we find that the limitations under which those exceptions are admitted show the influence of the general rule; thus a party dealing with an agent for an undisclosed principal is entitled as against the principal to the benefit of any, defence he could have used against the agent. It will be seen later that wilful concealment of a party's identity, e\en in a contract not as a rule of a strictly personal kind, may in peculiar circumstances amount to fraud (b). *C. Error as to the suhject-matter. [474 Error as to subject-matter. There may be fundamental error con- cerning : A. The specific thing supposed to be the subject of the transaction. B. The kind or quantity by which the thing is described, or some quality which is a material part of the description of the thing, though the thing be specifically ascertained. The question however is in substance always the same, and may be put in this form : It is admitted that the party intended to con- tract in this way for something; but is this thing that for which he intended to contract? Kennedy v. Panama, &c., Mail Company. The rule governing this whole class of cases is fully explained in the judgment of the Court of Queen's Bench in the case of Kennedy v. Panama, &c. Mail Com- pany (c). There were cross actions, the one to recover instalments paid on shares in the company as money had and received, the other for a call on the same shares. The contention on behalf of the share- holder was " that the effect of the prospectus was to warrant to the intended shareholders that there really was such a contract as is there represented {d), and not merely to represent the company hona fide believed it, and that the difference in substance between shares in a company with such a contract and shares in a company whose {z) Bryant, and Barningham's Con- (c) (lRfi7) L. R. 2 Q. B. 580, 36 tract (1890) 44 Ch. Div. 218, 59 L. J. L. J. Q. B. 260. Ch. 630. (d) A contract with the postmas- (a) Ch. II., p. *96, above. ter-freneral of New Zealand on behalf (h) Gordon v. Street [1899] 2 Q. of the Government, which turned out B. 641, 69 L. J. Q. B. 45, C. A. to be beyond his authority. 598 MISTAKE, supposed contract was not binding was a difference in substance in the nature of the thing; and that the shareholder was entitled to return the shares as soon as he discovered this, quite independently of fraud, on the ground that he had applied for one thing and got another '' (e). The Court allowed it to be good law that if the shares applied for were really different in substance from those allotted, this con- tention would be right. But it is an important part of the doc- 475] trine (/) that the difference in *substance must be complete. In the case of fraud, a fraudulent representation of any fact material to the contract gives a right of rescission; but the misapprehension which prevents a valid contract from being formed must go to the root of the matter. In this case the misapprehension was not such as to make the shares obtained substantially different from the shares described in the prospectus and applied for on the faith of that de- scription (g).^^ It was at most like the purchase of a chattel with a collateral warranty, where a breach of the warranty gives an inde- pendent right of action, but in the absence of fraud is no ground for rescinding the contract (h).^- In the particular case of taking shares in a company the contract IS not in any case void, but only voidable at the option of the share- holder if exercised within a reasonable time: this, although in strict- ness an anomaly, is required for the protection of the company's creditors, who are entitled to rely on the register of shareholders (i). We reserve for the present the question how the legal result is (e) Per Cur. L. R, 2 Q. B. at p. erence -which in fact the company 586. had no power to give to it, this does (/) In Roman law as well as in not amoimt to a generic difference the Common Law, ibid, at p. 5SS, between the thing contracted for and citing D. 18. 1. de cont. empt. 9, 10, the thing purchased: Eaglesfield v. 11. By a clerical error the state- Marquis of Londonderry (1876) 4 ment of Ulpian {h. t. 14) "Si autem Ch. Div. 69.3. aes pro auro veneat, non valet," is (h) Street v. Blay (1831) 2 B. «Sb ascribed to Paulus in the report. Ad. 4.56: 36 R. R. 626. (g) So, wliere new stock of a com- (i) See cases cited pp. *479, *480, pany is issued and purchased on the infra. supposition that it will have a pref- 51 One who subscribes and pays for shares of a proposed increase of stock, but to whom, without his knowledge, old shares instead of new shares are transferred, is not liable on them as a shareholder. Stephens v. Follett, 43 Fed. Rep. 842. Unless he ought to have kno\\'n the character of the shares transferred. Bailey r. Tillinghast, 99 Fed. Rep. 801. 811. A subscriber for stock not in fact authorized may recover pa>Tnents made on account of his subscription. Newbegin r. Newton Bank, 66 Fed. Rep. 701, 74 Fed. Rep. 13.t: McFarlin r. First Bank. 68 Fed. Rep. 868. Unless he is guilty of laches. Rand r. Columbia Bank, 94 Fed. Rep. 349. 52 See infra, p. 607, n. 67. AS TO SPECIFIC THING. 599 :affected when the error is due to a representation made by the other part3^ The exposition of the general principle, however, is not the less valuable : and we now proceed to give instances of its application in the branches already mentioned. A. Subdivisions: Error in corpore. Ambiguous name. Error as to the specific thing {in corpore). A singular modern case of this kind is Raffles v. Widielhaus (k). The declaration averred an agreement for the sale by the *plaintiif to the defendants of certain goods, [476 to wit, 135 bales of Surat cotton, to arrive ex "Peerless'' from Bom- hay, and arrival of the goods by the said ship : Breach, non-accept- ance. Plea, that the defendants meant a ship called the " Peerless." which sailed from Bombay in October, and that the plaintiff offered to deliver, not any cotton which arrived by that ship, but cotton which arrived by a different ship also called the " Peerless," and which sailed from Bombay in December. The plea was held good, for " The defendant only bought that cotton which was to arrive by a particular ship ; '' and to hold that he bought cotton to arrive in any ship of that name would have been " imposing on the defendant a contract dif- ferent from that which he entered into" (Z).^^ Misunderstanding of an offer made by word of mouth might conceivably have a like effect,'^ but obviously is, and ought to be, difficult to prove {m). (/.•) (1864) 2 H. & C. 906, 33 L. "shows that the words may bear J. Ex. 160. more than one meaning, without (Z) Per Pollock C.B. and Martin showing in which of those meanings B. 2 H. & C. at p. 207. The further either party used them, so that we questions which might have arisen on have a case of equivocation '" : Sir the facts are of course not dealt with. H. W. Elphinstone in L. Q. R. ii. 110. Such a case can occur only where (m) Phillips v. Bistolli (1824) 2 "the ordinary evidence as to the pri- B. & C. 511, 26 R. R. 433. mary meanings of the words " used 53 Where the action was on an agreement to purchase a lot on Prospect street, in Waltham, and it appeared that there were two streets of that name, and that the defendant intended to purchase a lot on one of said streets, and that plaintiff intended to sell a lot on the other, it was held that there was no contract. Kyle r. Kavanagh, 103 Mass. 356. A somewhat similar case is Stong V. Lane, 66 Minn. 94. " If one agrees to buy and the other to sell a tract of land, the cargo of a particular ship, a horse or other chattel, reference being had by them to different objects or animals, no contract is concluded." Bridgewater Iron Co. V. Insurance Co., 134 Mass. 433, 436. And see Hazard v. Insurance Co., 1 Sumn. 218, 225; Harvey r. Harris, 112 Mass. 32; Page r. Higgins, 150 Mass. 27; Cutts V. Guild, 57 N. Y. 229; Irwin r. Wilson, 45 Ohio St. 426; Reilly V. Gautschi, 174 Pa. 80; Sheldon r. Capron, 3 R. I. 171. So where in a bargain for insurance on grain in an elevator, there was a material mistake as to which of two adjacent elevators contained the grain, the insurance company was held not liable. Mead r. Phenix Ins. Co., 158 Mass. 124. 54 See Hartford, etc., R. Co. r. Jackson, 24 Conn. 514; Rowland i\ New York, etc., R. Co., 61 Conn. 103; Rupley v. Daggett, 74 HI. 351. 600 MISTAKE. Parcels included by mistake. In Malms v. Freeman (n) specific per- formance was refused against a purchaser wlio had bid for and bought a lot different from that he intended to buy : but the defendant had acted with considerable negligence, and the question was left open whether there was not a valid contract on which damages might be re- covered at law. The ease of Calvcrlcy v. Williams (o) shows however that the same principle has been fully recognized by courts of equity. The description of an estate sold by auction included a piece which appeared not to have been in the contemplation of the parties, and the purchaser was held not to be entitled to a conveyance of this part. 477 ] " It is impossiljle to *say, one shall be forced to give that price for part only, which he intended to give for the whole, or that the other shall be obliged to sell the whole for what he intended to be the price of part only The question is, does it appear to have been the common purpose of both to have conveyed this part ? " Harris v. Pepperell, &c. In Harris v. Pepperell (p) the vendor had actually executed a conveyance including a piece which he had not intended to sell, but which the defendant maintained he had intended to buy : Lord Romilly, acting in accordance with his own former decis- ion in Garrard v. Frankel (q) , gave the defendant an option of " hav- ing the whole contract annulled or else of taking it in the form which the plaintiff intended." The converse case occurred in Bloomer v. Spittle (r), where a reservation had been introduced by mistake.^^ The principle of these cases seems to be that the Court will not hold the plaintiff bound by the defendant's acceptance of an offer which did not express the plaintiff's real intention, and which the defendant could not in the circumstances have reasonably supposed to express (n) (1836-7) 2 Keen 25, 44 R. R. (p) (1867) L. R. 5 Eq. 1. 178; Dacre v. Gorges (1825) 2 S. & (q) (1862) 30 Beav. 445, 31 L. J. St. 454. 25 R. R. 246, appears to be- Cli. 604. long to the same class. (r) (1872) L. R. 13 Eq. 427, 41 (o) (1700) 1 Ves. jun. 210, 1 R. L. J. Cli. 369. R. 118. 55 In Brown r. Lamphear, 35 Vt. 252, the plaintiff had conveyed to the defendant a piece of land on vhich was a spring, from which the plain- tiff's aqueduct supplied liis own and otlier premises with water. The plaintiff had not intended to part with his right to draw water from the spring, but by mistake no reservation was made in the deed; the defendant, at the time of the purchase, did not know of the existence of the spring. Tlie defendant was given an option either to make a conveyance to tlie plaintiff entitling him to use the water from the sprinir or to reconvey tlie land on repayment of the purchase monev. And see Gilrov r. Alls. 22 In. 174; Harrison v. Talbot. 2 Dana, 258: Page r. Higsins. 150 Mass. 27. 32; Keene r. Demelman, 172 Mass. 17; Ne\^'ton r. Tnlles. >!6 K H. 130; Lawrence v. Staigg, 8 R. L 256; Fehlberg r. Cosine, 16 R. I. 162. AS TO srEcinc thing, 601 it (s) ; nor 3'et require the defendant to accept the real offer which was never efrectually communicated to him, and which he perhaps would not have consented to accept: but will put the parties in the same position as if the original offer were still open (0. The *Court having come to the conclusion that the parties did not [478 rightly understand eacli other, " it is not possible without consent to make either take what the other has offered " ( u) . This does not mean that a party who has accepted in good faith and in its natural sense a proposal made in explicit terms can be deprived of his right to rely on the contract merely because the proposer failed to express his own intention. In such a case the proposer is estopped from showing that his reasonably apparent meaning was not his real meaning (x).^° Ambiguous terms of contract. Similarly, " where the terms of the contract are ambiguous, and where, by adopting the construction put upon them by the plaintiff, they would have an effect not contemplated by the defendant, but would compel him to include in the conveyance property not intended or believed by him to come within the terms of the contract," and the plaintiff refuses to have the contract executed in the manner in which the defendant is willing to complete it, specific performance cannot be granted (y). When the purchaser erroneously but not unreasonably supposes a portion of property to be included which is of no considerable quan- tity, but such as to enhance the value of the whole, this is a " mistake (s) This limitation is material; Littledale (1858) 8 E. & B. 815. 'Z7 cp. Paget v. Marshall (1884) 28 Ch. L. J. Q. B. 201 (a case on an equita- Div. 255, 54 L. J. Ch. 575. with ble plea), the point of mistake (viz. Tamplin v. James (1880) 15 Ch. Div. the vendors of a specific cargo show- 215. Lord Romilly's judgments do ing the purchaser a sample which in not, in terms at any rate, sufficiently fact was of a different bulk) did nut attend to the principle enforced in go to the essence of the contract: the Tamplin v. James. More latelj' it correspondence of the bulk to tne has been said that these decisions sample was only a collateral term can be supported only on the ground which the purchaser might waive if of fraud, per Farwell J. May v. Piatt he chose. The vendors, therefore, [inoO] 1 Ch. 616, 60 L. J. Ch. 357. It were at all events not entitled to re- remains to be seen whether this criti- scind the contract unconditionally, cism is itself tenable to that extent. {u) Cloices v. Uigriinson (1813) 1 (t) For the principle of these de- Ves. & B. 524. 535.^12 R. R. 284. cisions compare Clowes v. Higginson (x) Tamplin V. James, see note (next note) and Lci/land v. Illing- (s) last page. icorth (1860) 2 D. F. & J. 252-3. Mc- (i/) Baxcndale \. F^eale (1854) 19 Kenzie v. Heskefh (1877) 7 Ch. D. BeaV. 601. 24 L. J. Ch. 385. Cp. per 675, 47 L. J. Ch. 231, well shows the Lord Eldon, Steicart v. Alliston distinction between this class of (1815) 1 Mer. 26. 33. 15 R. R. 81; cases and those where a true con- and per Sir W. Grant, Higginson v. tract is carried out with abate- Clowes (1808) 15 Ves. 516, 524, 10 ment or compensation. In Scott v. R. R. 112. 56 See supra, p. 43 et seq. 602 MISTAKE. between the parties as to what tlie property purchased really consists of" so material that the contract will not be enforced (2).^'^ In this class of cases a simple misunderstanding on the buyer's part of the description of the property sold, if such as a reasonable 479] and reasonably diligent man might fall *into, may be enough ■to relieve him from specifically performing the contract, though not from liability in damages (a).^® A vendor is in the same position if his agent has by ignorance or neglect included in a contract for sale property not intended to be sold (h). As to shares: It was for some time (c) held that a material variance between the objects of a company as described in the prospectus and in the memorandum of association would entitle a person who had taken shares on the faith of the prospectus to say that the concern actually started was not that in which he agreed to become a partner, and to have his name removed from the register. But these decisions were disapproved of in the House of Lords on the ground that " per- sons who have taken shares in a company are bound to make them- selves acquainted with the memorandum of association, which is the basis upon which the company is established "((Z). The rights and liabilities of persons taking shares in companies are indeed of a peculiar kind; and the imposition of this special duty upon them does not affect the general truth of the principle now being considered. Error in distinguishing numbers of shares not material. It has also been attempted to dispute the validity of a transfer of shares because the transferor had not the shares corresponding to the numbers expressed in the transfer, although he had a sufficient number of other shares in the company; but it was held that the transferee, who had in (z) Denny v. Hancock (1870) L. .3 Ch. 493: Hare's case (1869) L. R. R. 6 Cb. 1, 14. 4 Ch. 503: Chullis's case (1870-1) (c) Tamplin v. James (1880) 15 L. R. 6 Ch. 266, 40 L. J. Ch. 431; Ch. Div. 215. all showing that the contract is in (6) Alvanley v. Einnaird (1849) such cases not void, but only void- 2 Mac. & G. 1, 8. Cp. Griffiths v. able at the option of the shareholder, Jones (1873) L. R. 15 Eq. 279, 42 which must be exercised within a L. J. Ch. 468. reasonable time. So, a person who (c) Ship's case (1865) 2 D. J. & S. applies for shares in a company not 544, L. R. 3 H. L. 343 ; Webster's described as limited cannot after- case (1886) L. R. 2 Eq. 741; Stew- wards be heard to say that he did art's case (1860) L. R. 1 Ch. 574. not mean to take shares in an un- (d) Per Lord Chelmsford. Oakes V. limited company: Perrett's case Turquand (1867) L. R. 2 H. L. 32.5, (1873) L. R. 15 Eq. 250, 42 L. J. Ch. 351, 36 L. J. Ch. 949. See ace. Kent 305. V. Freehold Land Co. (1868) L. R. 57 See Ellicott r. \\Tiite, 43 Md. 145; Irick v. Fulton's Exra., 3 Gratt. 193. 58 See Ames, Cas. Eq. Jur., p. 394, n. AS TO KIND. 603 ^substance agreed to take fifty shares in the company, could not [480 set up the mistake as against the company's creditors (e). "The num- bers of the shares are simply directory for the purposes (f) of enabling the title of particular persons to be traced; but one share, an incor- poreal portion of the profits of the company, is the same as another, and share Xo. 1 is not distinguishable from share Xo. 2 in the same way as a grey horse is distinguishable from a black horse " (g).^^ A compromise of an action has been avoided, where by misappre- hension of counsel it extended to matters which his client and he thought were not in dispute (h). B. Error as to kind, &c. Error as to kind, quantity, or quality of the thing. A material error as to the kind, quantity, or quality of a subject- matter which is contracted for by a generic description (whether alone or in addition to an individual description) may make the agreement \oid, either because there was never any real consent of the parties to the same thing, or because the thing or state of things to which they consented does not exist or cannot be realized.^'^ (e) Ind's case (1872) L. K. 7 Ch. in equally good repair: Leach V. Mul- 485, 41 L. J. Ch. 504. left (1827) 3 Car. & P. 115, 33 R. R. if) Sic in the report. 657. (g) Or house Xo. 2 in a street (h) Hickman v. Bcrens [1895] 2 from house Xo. 4 in the same street, Ch. 638, 64 L. J. Ch. 785, C. A. though of the same description and 59Aitkins v. Gamble, 42 Cal. 86; Krouse v. Woodward, 110 Cal. 638; Caswell r. Putnam, 120 X. Y. 153, 157; Mayo v. Knowlton, 134 X. Y. 250, 253. 60 In Gardner r. Lane, 9 Allen, 492, it appeared that G. F. Wonson & Bros, sold to plaintiiT 135 barrels of Xo. 1 mackerel, and gave him a bill of sale thereof; no delivery was then made, but about two months later plaintiff called for the mackerel, and G. F. ^^■onson went with him to a wharf, wliere a large quantity was stored, and counted out eighty-five barrels of mackerel, which both supposed to be Xo. 1, and these were delivered to plaintiff and left there; that they then went to a store where there were barrels in rows, and Wonson counting off two rows containing, as he said, fifty barrels, marked the barrel at the end of each row, and gave to plaintiff a storage receipt in the name of his firm of Geo. F. Wonson & Bros. Before the same were removed the defendant, a creditor of Wonson & Bros, caused an attachment to be levied upon all of the property mentioned, and plaintiff thereupon replevied it. The two rows of barrels in the store numbered but forty-eight, and con- tained only salt. A portion of the quantity on the wharf was Xo. 1 mackerel and a portion was Xo. 3. Held : That no property in the barrels of Xo. 3 mackerel and of salt had passed to plaintiff. The court say, p. 499 : " Where parties to a contract of sale agree to sell and purchase a certain kind or description of property not yet ascertained, distinguished, or set apart, and subsequently a delivery is made, by mistake, of articles differing in their nature or quality from those agreed to be sold, no title passes by such de- livery. They are not included within the contract of sale; the vendor has not agreed to sell nor the vendee to purchase them ; the subject-matter of tlio contract has been mistaken, and neither party can be held to an execution of the contract to which he has not given his assent." Cp. S. C, 12 Allen. 39; Vigers V. Sanderson, [1901] 1 K. B. 608; Irwin v. Wilson, 45 Ohio St. 426. 604 MISTAKE. Genus: Thornton v. Kempster. In Thornton v. Kcmpster (i) the com- mon broker of both parties gave the defendant as buyer a sale note for Riga Rhine hemp, but to the plaintiff as seller a note for iSt. Peters- lurg clean hemp. The bought and sold notes were the only evidence ' of the terms of the sale. The Court held that " the contract must be on the one side to sell and on the other side to accept one and the same thing " : here the parties so far as appeared had never agTeed that the one should buy and the other accept the same thing; con- sequently there was no agreement subsisting between them. 481 ] *In a case of this kind however there is not even an agreement in terms between the offer and the acceptance. Quantity. A curious case of error in quantity happened in Henhel V. Pape (k), where by the mistake of a telegraph clerk an order in- tended to be for three rifles only was transmitted as an order for fifty. The only point in dispute was whether the defendant was bound by the message so transmitted, and it was held that the clerk was his agent only to transmit the message in the terms in which it was de- livered to him.^^ The defendant had accepted three of the fifty rifies sent, and paid the price for them into Court: therefore the question whether he was bound to accept any did not arise in this case. It is settled however by former authority that when goods ordered are sent together with goods not ordered, the buyer may refuse to accept any, at all events " if there is any danger or trouble attending the severance of the two '' (l).^^ (i) 5 Taunt. 786, 15 R. R. 658. Hart v. Mills (1846) 15 M. & W. (A;) (1870) L. R. 6 Ex. 7, 40 L. J. 85, 15 L. J. Ex. 200, where a new Ex. 15. contract was implied as to part of (Z) Levy\. (Ireen (1857) 8 E. & B. the goods which was retained; but 575, in Ex. Ch. 1 E. & E. 969, 27 in that case the quality as well as L. J. Q. B. Ill, 28 ib. 319, per the quantity of the goods sent was Byles J. 1 E. & E. at p. 976: and cp. not in conformity with the order. eiVerdin r. Robertson, 10 Ct. Sess. Cas. (.3d series) 35; Postal Tel. Co. V. Schaefer, (Ky. ) 62 S. W. Rep. 1119; Shingleur v. Western Union Tel. Co., 72 Miss. 1030; Pepper r. Telegraph Co.. 87 Tenn. 554, accord. Western Union Tel. Co. V. Shotter, 71 Ga. 760; Western Union Tel. Co. v. Flint River Co., 114 Ga. 576; Ayer r. Western Union Tel. Co., 79 Me. 493; Haubelt r. Rea & Page Mill Co.. 77 Mo. App. 672, contra. See also Morjjan r. People, 59 111. 58; Wilson r. Railway Co., 31 Minn. 481; Ho\vley V. Whipple, 48 N. H. 488; Durkee v. Vermont Central R. Co., 29 Vt. 137. The question has been disputed on the continent of Europe also. See Lyon- Caen et Renault, Traite de Droit Commercial, Vol. Ill, § 23. If the receiver of the telegram had reason to know, from the price named in a telegraphic offer, that an error must have been made, clearly an acceptance will not bind the sender to the offer in the form in which it was delivered. Germnin Fruit Co. v. Western Union Tel. Co., 137 Cal. 598. *i2 Rommel v. Wingate, 103 Mass. 327; Deutsch v. Pratt, 149 Mass. 415, 421; AS TO PRICE. 605 Price. The principle of error in quantity preventing the formation of a contract is applicable to an error as to the price of a thing sold or hired (m).^ As there cannot be even the appearance of a contract Avhen the acceptance disagrees on the face of it with the proposal, this question can arise only where there is an unqualified acceptance of an erroneously expressed or understood proposal. If the proposal if? misunderstood by the acceptor, it is for him to show that the mis- •understanding was reasonable. " Where there has been no misrepre- sentation, and where there is no ambiguity in the terms of the contract, tlie defendant cannot be allowed to evade the performance of it by the *simple statement that he has made a mistake" (n). A. [482 makes an offer to B. to take a lease of a named farm, specifying as its contents land amounting to 250 acres; B.'s agent, who meant to invite ofi'ers for only 200 acres, accepts A.'s offer without examining its particulars. Here there is a contract binding on B., and A. is entitled to specific performance to the extent of B.'s power to give it, with a proportionate reduction of the rent (o). If, on the other hand, the proposal is by accident wrongly ex- pressed, the proposer must show that the acceptor could not reason- ably have supposed it in its actual form to convey the proposer's real intention. This occurred in Webster v. Cecil (p), where the defend- ant sent a written offer to sell property and wrote I.IOOL for 2,100Z. by a mistake in a hurried addition of items performed on a separate piece of paper. This paper was kept by him and produced to the Court. On receiving the acceptance he discovered the mistake and at (m) D. 10. 2. locati, 52. Si decern (r?) Tamplin v. James (1880) 15 tibi locem fimdum, tu autem exis- Ch. Div. 215, 217 (Baj^^gallay L.J. ). times quinque te conducere, nihil (o) McKenzie \. Heskcth (1877) 7 agitur. Sed et si ego minoris me Ch. D. 675. 47 L. J. Ch. 231. locare sensero, tu pluris te con- (p) (1861) 30 Beav. 62. ducere, iitique non pluris erit eon- ductio quam quanti ego putavi. Landesman r. Gummersell, IG Mo. App. 459 ; Croninger v. Crocker, 62 N. Y. 151; Southwell v. Breezley, 5 Oreg. 143; Perry r. Mt. Hope Iron Co.. 16 R. I. 318; Barton r. Kane/l7 Wis. 37. Cp. Do\^Tier r. Thompson. Hill, 208; Bowers v. Worth, 129 N. C. 36; BroArafield v. Johnson, 128 Pa. 254. 03 Greene r. Bateman, 2 Woodb. & M. 359: Pvovegno r. Deffarari. 40 Cal. 459; Peerless Glass Co. v. Pacific Crockery Co., 121 Cal. 641; Railroad Co. r. Jack- son. 24 Conn. 514; Rowland v. New York, etc., R. Co., 61 Conn. 103; Rupleyr. Daggett, 74 111. 351; Turner v. Webster, 24 Kan. 38; Harran r. Foley, 62 Wis. 584. See also Star Glass Co. c. Langley, 64 Ga. 576, 578; Fear r. Jones, 6 la. 169, 170. On a sale at auction of a block of land sribdivided into separate lots, de- fendant became the purchaser. A bill for specific performance having l)een filed, complainant proved that the premises were put up to be sold by the lot; but it appearing that defendant not unreasonably supposed that the block was offered as an entirety, and that he intended his bid as the price for the whole block, the bill was dismissed. Coles r. Bo^\^le, 10 Paige, 526. 606 MISTAKE. cDce gave notice of it. It appeared that the plaintiff had reason to know the real value of the property. Under the circumstances specific performance was refused. The case is explained by James L.J. as one *' where a person snapped at an offer which he must have perfectly well known to be made by mistake." (q).^ Material attribute. But sometimes, even when the thing which is the subject-matter of an agreement is specifically ascertained, the agree- ment may be avoided by material error as to some attribute of the thing. For some attribute which the thing in truth has not may be a material part of the description by which the thing was contracted for. If this is so, the thing as it really is, namely, without that 483] quality, *is not that to which the common intention of the parties was directed, and the agreement is void. Conditions necessary to avoid transaction on this ground. An error of this kind will not suffice to make the transaction void unless — (1) It is such that according to the ordinary course of dealing and use of language the difference made by the absence of the quality wrongly supposed to exist amounts to a difference in kind (r) ; (2) and the error is also common to both parties. Thus we read " Mensam argento coopertam niihi ignoranti pro solida vendidisti imprudens; nulla est emptio, pecuniaque eo nomine data condicetur " (s). Again, " Si aes pro auro veneat, non valet "' [{), " If a bar [is] sold as gold, but [is] in fact brass, the vendor being innocent, the purchaser may recover " {u).^^ This, however, is not to be taken too largely. What does pro auro, as and for gold, imply as (q) Tamplin v. James (1880) 15 adopted by the Court of Q. B. in Ch. D. at p. 221. Kennedy v. Panama, rfc. Mail Co., p. (r) Savigny, Syst. § 137 (3. 283). *474, supra. (s) D. 18.' 1. de cont. empt. 41 (;/) Per Lord Campbell C.J. Gom- s. 1. pertz V. Barflett (lRr,:i) 2 E. & B. (0 D. eod. tit. 14, cited and 849, 854, 23 L. J. Q. B. G5. 64 See Hume r. United States, 132 U. S. 406; Moffett v. Rochester, 178 U. S. 373; Shelton v. Ellis, 70 Ga. 297; Turner v. Webster. 24 Kan. 38; Burkhalter v. -Jones, 32 Kan. 5; Chute v. Quincy, 156 Mass. 189; First Bank V. Hayes, 64 Ohio St. 100; Everson v. International Granite Co., 65 Vt. 658. " Where a proposition to sell goods is sent by a writing, that, by mistake, is ambiguous ; and. knowing of such ambiguity, the receiver of the writing claim- ing an improbable meaning, unreasonably favorable to himself, and not in- tended or thought of by the sender, and without notice to the sender or inquiry of him as to his intended meaning, orders the goods, obtains and uses them, such receiver of the goods is liable to the seller of the same for the value of the goods used, as if no proposition had been sent." Butler r. Moses, 43 Ohio St. 166. 65 A. agreed to sell a cow as a barren cow for $80. If a breeder the cow was worth about $1,000. Before transfer of possession A. discovered the cow was with calf. It was held he could rescind the bargain. Sherwood v. Wal- AS TO ESSENTIAL QUALITY. 607 here used? It implies that the buyer thinks he is buying, and the seller that he is selling, a golden vessel: and further, that the object present to the minds of both parties as that in which they are trafficking — the object of their common intention — is not merely this specific vessel, but this specific vessel, being golden. Then, and not otherwise, the sale is void.^ If the seller fraudulently represents the vessel as golden, knowing that it is not, the sale is (as between them) not void but voidable at the option of the bu3'er. For if both parties have been in innocent and equal error it would be unjust to let either gain any advantage : but a party who has been guilty of fraud has no right to complain of having been taken at his word ; and it is conceivable that it might be for the interest of the buyer to affirm the transaction, as if tho vessel supposed by the fraudulent seller to be of *worthless base [484 metal should turn out to be a precious antique bronze. Probably the results are the same if the buyer's belief is founded even on an inno- cent representation made by the seller. This seems to be assumed by the language of the Court in Kennedy v. Panama, dc. Mall Com- pany (x). We shall recur to this point presently. Or in an ordi- nary case the buyer may choose to treat the sellers affirmation as a warranty, and so keep the thing and recover the difference in value. Again, if the sale of the specific vessel is made in good faith with a warranty of its quality, the vendor must compensate the purchaser for breach of the warranty, but the sale is not even voidable. For the existence cf a separate warranty shows that the matter of the war- ranty is not a condition or essential part of the contract, but the intention of the parties was to transfer the property in the specific chattel a± all events.^''' Whether a particular affirmation as to the {x) (1867) L. R. 2 Q. B. 580, 587, 36 L. J. Q. B. 260, p. *474, supra. ker, 66 Midi. 568. Cp. Wheat v. Cross, 31 Md. 99; Wood r. Boynton, 64 Wis. 265; White r. Stelloh, 74 Wis. 435; MeQuaid ;;. Ross, 85 Wis. 492. In this connection may also be considered mistakes as to the legal validity of negotiable paper. Such validity is usually regarded as impliedly warranted by the seller, ileyer r. Richards. 163 U. S. 385, criticising Littauer r. Gold- man, 72 N. Y. 508. See post, p. 654, n. 5. But a mutual mistake as to the sol- vency of the maker of a note does not affect a sale of the note. Hecht r. Batcheller, 147 Mass. 335: Bicknall r. Waterman, 5 R. I. 43. <'><'i See Bridgewater Iron Co. r. Enterprise Ins. Co., 134 Mass. 433, 436; Kowalke v. Milwaukee Electric Co.^ 103 Wis. 472. fi7 Thornton r. Wynn, 12 Wheat. 183; Lyon v. Bertram. 20 How. 149; Trumbull v. O'Hara. 71 Conn. 172; Worcester Mfff. Co. v. Waterbury Brass Co., 73 Conn. 554; Woodruff r. Graddv, 91 Ga. 333; Pound v. Williams. 47 S. E. Rep. 218 ; Ga. Code. § 3556 ; Crabtre'e r. Kile. 21 111. 180: Owens r. Sturges, 67 111. 366; Kemp r. Freeman, 42 111. App. 500 (but see contra. Sparling ;;. Marks, 86 111. 125) ; Marsh r. Low, 55 Ind. 271; Hoover r. Sidener, 98 Ind. G08 MISTAKE. quality of a specific thing sold be onl}' a warranty, or the sale be " conditional, and to be null if the affirmation is incorrect/' is a ques- tion of fact to be determined by the circumstances of each case (y). Error must be common. Accordingly, when the law is stated to be tluit " a i^arty is not bound to accept and pay for chattels, unless they (y) See per Wightman J. Gurney error in substantia in §§ 137. 138 (3. V. Womersky (1S54) 4 E. & B. 133, 276 sryr/.), deserves careful study. Of 142, 24 L. J. Q. B. 40: Bannermun v. cour.se the conclusions in detail are White (1861) 10 C. B. N, S. 844, 31 not always the same as in our law; L. J. C. P. 28, Finch Sel. Ca. 531; and the fundamental difference in Azemar V. Casclla (1867) L. R. 2 C. the rules as to the actual transfer P. 431, 677, 36 L. J. C. P. 124. The of property in goods sold (as to Ponian law is the same as to a sale which, see Blackburn on the Contract with warranty: D. 19. 1. de act. of Sale. Part 2, Ch. 3) must not be empt. 21 § 2. expld. by Savigny, overlooked. But this does not affect Syst. 3. 287. The whole of Savigny's the usefulness and importance of the admirable exposition of so-called general analogies. 290: Wulschner r. Ward, 115 Ind. 219, 222; Lightburn V. Cooper, 1 Dana, 273; H. W. Williams Transportation Line v. Darius Cole Transportation Co., 88 X. W. Rep. 473; Merrick v. Wiltse, 3 Minn. 41: Lynch r. Curfman, 65 Minn. 170 (cp. Close r. Crossland, 47 Minn. 500) ; Voorhees v. Earl, 2 Hill, 288 ; Cary v. Greeman, 4 Hill, 625 ; Muller r. Eno, 14 N. Y. 597 : Day v. Pool, 52 N. Y. 416; Fairbank Canning Co. r. Metzger, 118 N. Y. 260, 269; Kase V. John, 10 Watts, 107; Freyman i\ Knecht, 78 Pa. 141; Eshleman v. Lightner, 169 Pa. 46; Kauffman Milling Co. v. Stuckey, 40 S. C. 110; Hull r. Ca^ldwell, 3 S. Dak. 451: Allen r. Anderson, 3 Humph. 581; Wright v. Davenport, 44 Tex. 164; Hoadly v. House, 32 Vt. 179; Matceson r. Holt, 45 Vt. 336; Mooers V. Gooderham, 14 Ont. 451. Many jurisdictions in the United States, however, allow rescission of an executed sale for breach of warranty. Pacific Guano Co. V. Mullen, 66 Ala. 582; Thompson r. Harvey, 86 Ala. 519; Hodge r. Tufts, 115 Ala. 366: Plant r. Condit. 22 Ark. 454, 458; Righter r. Roller, 31 Ark. 170, 173; Polhemus r. Heiman, 45 Cal. 573; Hoult r. Baldwin, 67 Cal. 610 (cp. Cal. Civ. Code, § 1786); Rogers v. Hanson. 35 la. 283; Upton Mfg. Co. r. Huiske, 69 la. 557; Eagle Iron Works r. Des Moines Rv. Co., 101 la. 289: Timken Carriage Co. r. Smith, (Xeb.) 99 X. W. Rep. 183; Whalen v. Gordon, (la. C. C. A.) 95 Fed. Rep. 305; Code, art. 2520; Flash v. American Glucose Co.. 38 La. Ann. 4 (based on the civil law) ; Craver v. Hornburg, 26 Kan. 94; Weybrich r. Harris. 31 Kan. 92; Gale Mfg. Co. v. Stark, 45 Kan. 006; Cutler r. Gilbreth. 53 Me. 176: Milliken v. Skillings, 89 Me. 180 (see also Xoble V. Bushwell. 96 Me. 73) ; Tavmon r. Mitchell, 1 Md. Ch. 496; McCeney r. Duvall, 21 Md. 166; Horner r. "Parkhurst, 71 Md. 110 (cp. Horn r. Buck. 48 Md. 358. 372: Columbian Iron Works r. Douglas, 84 Md. 44, 64) ; Bradford V. Manly, 13 Mass. 139; Perley r. Balch, 23 Pick. 283; Dorr r. Fi something at or before a specified time, and when he fails to do sucli thing within that time, he could not afterwards claim the perform- ance of the contract if the stipulation as to time were construed ac- cording to its literal terms. The rule of the common law was that (o) Per Wilde B. Lyall v. Edicards Ch. Div. 1, where no accounts had (1861) 6 H. & X. 337, 348, 30 L. J. been rendered or examined at all; Ex. 193, 197. This was a case of twenty years had elapsed and the re- equitable jurisdiction under the C. leasee was dead. L. P. Act,"l854; but before that Act (r) Miliary. Craig (1843) 6 Beav. courts of law would not allow a re- 433, Lindley on Partnership, 490. lease to be set up if clearly satisfied (s) Skilbeck v. Hilton (1866) L. that a court of equity would set it E. 2 Eq. 587 ; but qu. whether the aside: Phillips v. Claqett (1843) 11 principle was rightly applied in the M. & W. 84, 12 L. J. Ex. 275. particular case. (p) See the cases considered at p. {t) Xotes to Peefers v. Opic. 2 *454, above. Wms. Saund. 743; and see Ch. VI., (a) Gandtj v. Macaulay (1885) 31 p. *261, above. 86 But see contra, Kirchner v. New Home Co., 135 N. Y. 182. STIPULATIONS AS TO TIME. 637 '• time is always of the essence of the contract." When any time is lixed for the completion of it, the contract must be completed on the day specified, or an action will lie for the breach of it (u). The rule of equity, which now is the general rule of English juris- prudence, is to look at the whole scope of the transaction to see whether the parties really meant the time named to be of the essence of the contract. And if it appears that, though they named a specific day for the act to be done, that which they really contemplated was cnly that it should be done within a reasonable time ; then this view will be acted upon, and a party who according to the letter of the contract is in default and incompetent to enforce it will yet be allowed to enforce it in accordance with what the Court considers its true meaning.^'^ " Courts of equity have enforced contracts specifically, where no action for damages could be maintained; for at law the party plaintiff must have strictly performed his part, and the inconvenience of insisting upon that in all cases was sufficient to require the interference of courts of equity. Tliey dispense with that which would make compliance with what the law requires oppressive, and in various cases of such contracts they are in the constant hal)it of relieving the man who has acted fairly, though negligently. Thus in the case of an estate sold by auction, there is a condition to forfeit the de- posit if the purchase be not completed within a certain time; yet the Court is in the constant habit of relieving *against the lapse of time: and so in the [505 case of mortgages, and in many instances relief is given against mere lapse of time where lapse of time is not essential to the substance of the contract." So said Lord Eedesdale in a judgment which has taken a classical rank on this subject (x). Contracts between vendors and purchasers of land are however the chief if not the only classes of cases to which the rule has been habitually applied (y). (u) ParJdn v. Thorold (1852) 16 M. & G. at p. 289, 22 L. J. Ch. 398, Beav. 59, 65. and again adopted by the L.JJ. in (x) Lennon v. 'Sapper ( 1802) 2 Tilley v. T ho 7nas {1867) L. R. 3 Ch. 61. Sch. & L. 684, cited bv Knight Bruce (y) See per Cotton L.J. 4 C. P. D. L.J., Roherts v. Berry (1853) 3 D. at p. 249. S7 Time is held to be of the essence of the contract in equity, only in case of direct stipulation or of necessary implication. Taylor v. Longworth. 14 Pet. 172; Kentucky Distillers' Co. " r. Warwick Co.," 109 Fed. Rep. 280, 282 (C. C. A.) ; Steele r. Branch, 40 Cal. 3; Keller r. Fisher, 7 Ind. 718; Snowman V. Harford, 55 Me. 197; Barnard r. Lee, 97 Mass. 92; Bomier r. Caldwell, 8 Mich. 403: Gill r. Bradlev. 21 Minn. 15; Austin r. Wacks, 30 Minn. 335; Ewins r. Gordon, 49 X. H."444, 459; Brock v. Hidy, 13 Ohio St. 306; Huffman V. Hummer, 17 X. J. Eq. 263; King r. Ruckman,'21 N. J. Eq. 599; Edgerton V. Peckham, 11 Paige, 352; Hubbell r. Von Schoening, 49 N. Y. 326; Tiernan r. Roland, 15 Pa. St. 429; Jackson i'. Ligon, 3 Leigh, 161. 186; Jarvis r. Cowger's Heirs, 41 W. Va. 268. And equity sometimes disregards even an express stipulation that time shall be of the essence. Chenev r. Libby, 134 U. S. 68 ; Camp Mfg. Co. v. Parker, 91 Fed. Rep. 705 (C. C. A.). 628 MISTAKE. As to making time of the essence of the contract. It was once even supposed that parties could not make time of the essence of the con- tract by express agreement; but it is now perfectly settled that they can, the question being always what was their true intention (2), or rather " what must be judicially assumed to have been their inten- tion" (a). "If the parties choose even arbitrarily, jDrovided both of them intend to do so, to stipulate for a particular thing to be done at a particular time," such a stipulation is effectual. There is no equitable jurisdiction to make a new contract which the parties have not made (h).^^ The fact that time is not specified, or not so specified as to be of the essence of tne contract, does not affect the general right of either party to require completion on the other part within a reasonable time, and give notice of his intention to rescind the contract if the default is continued (c),^^ as on the other 506] hand conduct of the party *entitled to insist on time as of the essence of the contract, such as continuing the negotiations without an express reservation after the time is past, may operate as an implied waiver of his right (cZ).^^ In mercantile contracts the p'^esumption, (z) Seton V. Slade (1802) 7 Ves. (c) This is the true and only ad- 265, 275, 6 R. R. 124, and notes to missible meaning of the statement that case in 2 Wh. & T. L. C. ; Parkin that time can be made of the essence V. Thorokl (1852) IG Beav. 59. of a contract by subsequent express (a) Grove J. in Patrick v. Milner notice. Per Fry J. Green v. Sevin (1877) 2 C. P. D. 342, 348, 46 L. J. (1879) 13 Ch. D. 589, 599; per C. P. 537. Turner L.J. Williams v. Glenion ih) Per Alderson B. Eipwell v. ( 180G) L. R. 1 Ch. 200. 210. Knight (1835) 1 Y. & C. Ex. Eq. 415, (d) Wehh v. Eughes (1870) L. R. 41 R. R. 304. And see the observa- 10 Eq. 281, 39 L. J. Ch. 606, and see tions of Kinderslev V.-C. to the same note (7i). effect in Onkden V. Pike (1865) 34 L. J. Ch. 620. 88 " There is no doubt that time may be made of the essence of a contract for the sale of property. It n^ay be made so by the express stipulation of the parties, or it may arise by implication from the nature of the property, or the avovv'ed objects of the seller or the purchaser." Taylor r. Longworth, 14 Pet. 172, 174; Cheney v. Libby, 134 U. S. 68; Waterman r. Banks. 144 U. S. 394; Myers v. League, 62 Fed. Rep. 654; Grey r. Tubbs, 43 Cal. 359; Quinn V. Roath, 37 Conn. 16; Steele v. Biggs, 22 111. 643; Ewing r. Crouse, 6 Ind. 312; Prince r. Griffin, 27 la. 514; Scarlett r. Stein, 40 Md. 512. 525; Gold- smith V. Guild, 10 Allen, 239; Grigg v. Landis, 21 X. J. Eq. 494; Wells v. Smith. 7 Paige, 22; Benedict r. Lynch, 1 Johns. Ch. 370: Scott r. Fields, 7 Ohio, 376; Holbrook r. Investment' Co., 30 Oreg. 259; Hicks v. Aylsworth, 13 R. I. 562, 566. 89 Chabot V. Winter Park Co., 34 Fla. 258 ; Austin v. Wacks, 30 Minn. 335, 340; Bullock v. Adams' Exr., 20 N. J. Eq. 367; Wiswall v. McGowan, 1 HoflFm. Ch. 12.5, 139; Schmidt r. Reed, 132 N. Y. 108; Kirby v. Harrison, 2 Ohio St. 326; Thompson v. Dulles, 5 Rich. Eq. 370. 90 So conduct inducing a belief that strict performance will not be i-equired. Cheney r. Libbv. 134 U. S. 68; Camp Mfg. Co. v. Parker, 91 Fed. Rep. 7U5 (C. C. A.). RELIEF AGAINST PENALTIES. 629 if any, is that time where specified is an essential condition (e).^^ An express promise to do a thing " as soon as possible " binds the promisor to do it within a reasonable time, with an undertaking to do it in the shortest practicable time (/). The principles of our jurisprudence on this head are well embodied by the language of the Indian Contract Act, s. 55 : When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any sucli thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable, at the option of the promisee, if the intention of the parties Avas that time should be of the essence of the contract. [The Court may infer from the nature of a contract, even though no time be specified for its completion, that time was intended to be of its essence to this extent, that the contracting party is bound to use the utmost diligence to perform his part of the contract] (g). If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time: but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure. If in case of a contract, voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compeiisation for any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time of such acceptance, he gives notice to the promisor of his intention to do so (/i.).S2 *C. Relief against Penalties. [507 Especially as to mortgages. In like manner penal provisions inserted in instruments to secure the payment of money or the performance of contracts will not be literally enforced, if the substantial perform- (e) Per Cotton L.J. Renter v. Sala Beav. 533 (contract for a lease of (1879) 4 C. P. Div. at p. 249, 48 L. working mines). J. C. P. 492. (h) "It constantly happens that (f) Hydraulic Engineering Co. v. an objection is waived bv the con- McHaffic (1878) 4 Q. B. Div. 670, duct of the parties," per James L.J. 673. T'ppcrton v. Nickolson (1871) 6 Ch. (g) Machryde v, ^Yeckes (1850) 22 at p. 443, ^.0 L. J. Ch. 401. And see Dart, V. & P. 424. 91 Bowes f. Shand, 2 App. Cas. 455; Xorrington v. Wright, 115 U. S. 188; Cleveland Rolling Mills r. Rhodes, 121 U. S. 255; Camden Iron Works v. Fox, 34 Fed. Rep. 200; Cromwell r. Wilkinson, 18 Ind. 365; New Bedford Copper Co. r. Southard, 95 Me. 209; Crane v. Wilson, 105 Mich. 554; Redlands Assoc. V. Gorman, 76 Mo. App. 184; Blossom i\ Shotter, 59 Him, 481, aflfd. without opinion, 128 N. Y. 679. Cp. McFadden v. Henderson, 128 Ala. 221; BroAATie v. Patterson^ 165 N. Y. 460. 92 Brassell r. McLemore, 50 Ala. 476; Lounsburv r. Beebe, 46 Conn. 291; Ewins r. Gordon, 49 IT. H. 444. 460; Peck r. Brighton, 69 111. 200; Thaver t?. Star :\[ining Co., 105 111. 540; Foley r. Crow, 37 Md. 51: Dressel r. Jordan, 104 IMass. 407; Grigg v. Landis, 21 N". J. Eq. 494; Ewins r. Gordon, 49 N. H. 444; Dunn r. Steubing, 120 N. Y. 232; Benson v. Cutler, 53 Wis. 107. 630 MISTAKE. « ance of that wliicli was really contemplated can be otherwise se- cured (i). The most important application of this principle is to mortgages. A court of equity treats the contract as being in substance a security for the repayment of money advanced, and that portion of it which gives the estate to the mortgagee as mere form, " and accordingly, in direct violation of the [form of the] contract." it compels the mortgagee to reconvey on being repaid his principal, in- terest and costs (k). Here again the original ground on which equity interfered was to carry out the true intention of the parties. But it cannot be said here, as in the case of other stipulations as to time, that everything depends on the intention. For the general rule " once a mortgage, and always a mortgage " cannot be superseded by an ex- piess agreement so as to make a mortgage absolutely irredeemable (l).^^ However, limited restrictions on the mutual remedies of the mort- gagor and mortgagee, as by making the mortgage for a term certain, (i) In addition to the authorities (l) Eoicardv. Harris, 1 Vern. 100; cited below, see the later case of Ex Coicdry v. Daij (1859) 1 Giff. 316, parte Hulse (1873) L. R. 8 Ch. 1022, see reporter's note at p. 323; 1 Ca. 43 L. J. Ch. 2G1. Ca. 141, 20 L. J. Ch. 30. The C. A. (/>•) jper Romilly M.R. Parkin v. was divided, in a peculiar case, as to Thorold (1852) 16 Beav. 59, 68 ; and the application of this principle: see Lord Redesdale's judgment in Mfirqmss of S orthampton v. Pollock Leiuway.Xapper,]). ''505, supra. As (1890) 45 Ch. Div. 190, 50_ L._ J. Ch. to the old theory of an '* equity of 745 : the opinion of the majority was redemption" being not an estate but upheld in H. L. [1892] A. C. 1, 61 a merely personal right, and its con- L. J. Ch. 49. See now Noakes d- Co. sequences, see Lord Blackburn's re- v. 7i*jce [1902] A. C. 24. marks, 6 App. Ca. at p. 714. sspeugh V. Davis. 96 V. S. 332; Fields v. Helms, 82 Ala. 449: Pierce r. Robinson, 13 Cal. 116. 125; Walker v. Farmers' Bank, 6 Del. Ch. 81; Bearss r. Ford, 108 111. 16; Seymour r. Mackay, 126 111. 341; Reed v. Reed, 75 Me. 264, 272; Batty c. Snook, 5 Mich. 231; Marshall r. Thompson, 39 Minn. 137; Wilson r. Dru'mrite, 21 Mo. 325; Weathersly v. Weathersly, 40 Miss. 462; Vanderhaize r. Husues, 13 X. J. Eq. 244: Youle r. Richards, 1 Saxt. Ch. 534; Clark V. Henry. 2 Cow. 324; :Macaulev r. Smith, 132 N. Y. 524; Mooney v. Byrne. 163 N.'Y. 86; Robinson r. Willoughby, 65 N. C. 520, 523, 524; Stover r. Bounds, 1 Ohio St. 107. Cp. De Martin v. Phelan, 47 Fed. Rep. 761; 115 Cal. 538. The rule, however, does not prevent a sale of his equity of redemption by a mortgagor to the mortgagee ; though in examining the transaction " prin- ciples almost as stern are applied as those which govern where a sale by a cestui que trust to his trustee is drawn in question." Villa r. Rodriguez, 12 Wall. 323, 339; Russell r. Southard. 12 How. 139, 154; Peugh v. Davis, 96 U. S. 332. 337 ; Savings Soc. v. Davidson, 97 Fed. Rep. 696 ; Oakley r>. Shelley, 129 Ala. 467 ; West r. Reed. 55 111. 242 ; Hicks r. Hicks, 5 G. & J. 75 ; Trull r. Skinner, 17 Pick. 213; Fallis r. Insurance Co., 7 Allen, 46; De Lancey r. Finneo-an, 86 Minn. 254: Odell r. Montross, 68 N. Y. 498. 504; Randall v. Sanders. 87 N. Y. 578: McLeod r. Bullard, 86 N. C. 210; Shaw v. Walbridge, 33 Ohio St. 1 ; Tripler r. Campbell, 22 R. I. 262; Hall r. Hall, 41 S. C. 163; Swarm r. Boggs, 12 Wash. 246. IMORTGAGES. 631 are allowed and are not uncommon in practice. Also there may be such a thing as an absolute sale with an option of repurchase on certain conditions ; and if such is really the nature of the transaction, equity will give no relief against the necessity of observing those conditions (m).^'* *" That this Court will treat a transaction as a mortgage, al- [508 though it was made so as to bear the appearance of an absolute sale, if it appears that the parties intended it to be a mortgage, is no doubt true " (n).^^ " But it is equally clear, that if the parties intended an absolute sale, a contemporaneous agreement for a repurchase, not acted upon, will not of itself entitle the vendor to redeem" (o). (m) Davis v. Thomas (1830) 1 Odell, 1 Allen, 85; Reeve r. Dennett. Euss. & M. 506,32 R. R. 257. 137 Mass. 315; Fuller (;. Parrish, 3 {n) See Douglas v. Culvericell Mich. 211; Pinch v. Willard, 108 (1862) 31 L. J. Ch. 543; and r> also Mich. 204; Barry v. Hamburg-Bre- at common law, Gardner v. Cazenove men Ins. Co. 110 N. Y. 1.] (1856) 1 H. & X. 423. 435. 438. 26 (o) Per Lord Cottenham C. Wil- L. J. Ex. 17, 19, 20. [See McAnnulty Hams v. Owen (1840) 5 M. & Cr. 303, V. Seick, 59 la. 586: Blanchard v. 306, 12 L. J. Ch. 207, 48 R. R. 32ii. Fearing, 4 Allen, 118; Howard r. 94 " To deny the power of two individuals, capable of acting for themselves, to make a contract for the purchase and sale of lands defeasible by the pay- ment of money at a future day, or, in other words, to make a sale ■with a reservation to the vendor of a right to repurchase the same land at a fixed price and at a specified time, would be to transfer to the court of chancery, in a considerable degree, the guardianship of adults as well as of infants," per Marshall, C. J., in Conway's Exrs. v. Alexander, 7 Cr. 218, 237; Wallace V. Johnstone, 129 U. S. 58; Beck r. Blue, 42 Ala. 32; Henley v. Hotaling, 41 Cal. 22; Vance v. Anderson, 113 Cal. 532; Spence v. Steadman, 49 Ga. 133; Hanford v. Blessing, 80 111. 188; Hughes r. Sheaff, 19 la. 335; Robertson V. Moline, etc., Co., 106 la. 414; Bigler r. Jack. 114 la. 607; Flagg v. Mann, 14 Pick. 467; Cornell r. Hall, 22 Mich. 377; Daniels r. Johnson, 24 Mich. 430; Buse r. Page, 32 Minn. Ill; Turner v. Kerr, 44 Mo. 429; Slutz r. Desenberg, 28 Ohio St. 371; Tripler r. Campbell, 22 R. I. 262; Puffier v. Woniack, 30 Tex. 332 ; Rich r. Doane, 35 Vt. 125 ; Swarm r. Boggs, 12 Wash. 246 ; Smith r. Crosby, 47 Wis. 160; Kunert v. Strong, 103 Wis. 74. 95 See Russell r. Southard, 12 How. 139; Peugh v. Davis, 96 U. S. 332; Pierce r. Robinson, 13 Cal. 116; French v. Burns, 35 Conn. 359; Ruckman V. Ahvood. 71 111. 155; Story r. Springer. 155 111. 25; Moore r. Wade, 8 Kan. 380; Reeder r. Gorsuch, 5.j' Kan. 553; Reed r. Reed, 75 Me. 264; Booth v. Robinson, 55 Md. 419: Pickett r. Wadlow, 94 Md. 564; Campbell v. Dearl)orn, 109 Mass. 130: Klein r. :\IcXamara, 54 Miss. 90; O'Neill r. Capelle, 62 Mo. 202; Rilev r. Starr. 48 Neb. 243; Saunders r. Stewart, 7 Nev. 200; Sweet V. Parker, 22 N. J. Eq. 453: Pace i\ Parties, 47 N. J. Eq. 170; Horn v. Keteltas, 46 N. Y. 605; Carr r. Carr, 52 N. Y. 251, 260; Kraemer r. Adelsberger, 122 N. Y. 467; Moonev v. Byrne, 163 N. Y. 86; Wilson v. Giddings, 28 Ohio St. 554; Gibbs r. Pennv, 43 Tex. 560; Loving v. Milliken, 59 Tex. 423; Temple Bank r. Warner, 92 Tex. 226 ; Hills r. Loomis, 42 Vt. 562 ; Suavely v. Pickle, 29 Graft. 27 ; Wilcox r. Bates. 26 Wis. 465 ; Lamson v. Moffatt, 61 Wis. 153. But the evidence showing that the transaction was in reality a mortgage must be clear and satisfactory. Cadman r. Peter, 118 U. S. 73; Satterfield'r. Malone, 35 Fed. Rep. 445; Rogers r. Edwards, 81 Ala. 568; Strong v. Strong, 126 111. 301: Sloan r. Becker! 34 Minn. 491; Pancake v. Cauffman, 114 Pa. 113; Becker v. Howard, 75 Wis. 415. 633 MISTAKE. General rule. The manner in which equity deals with mortgage transactions is only an example of a more general rule : — " Where there is a debt actually due, and in respect of that debt a secu- rity is given, be it by way of mortgage or be it by way of stipulation that in case of its not being paid at the time appointed a larger sum shall become payable, and be paid, in either of those cases Equity regards the security that has been given as a mere pledge for the debt, and it will not allow either a forfeiture of the property pledged, or any augmentation of the debt as a penal provision, on the ground that Equity regards the contemplated forfeiture which might take place at law with reference to the estate as in the nature of a penal provision, against whicli Equity will relieve when the object in view, namely, the securing of the debt, is attained, and regarding also the stipulation for the payment of a larger sum of money, if the sum be not paid at the time it is due, as a penalty and a forfeiture against which Equity will relieve " (p) . This applies not only to securities for the payment of money hut to all cases '' where a penalty is inserted merely to secure the enjoy- ment of a collateral object'^ (q). In all such cases the penal sum was originally recoverable in full in a court of law, but actions brought to recover penalties stipulated for by bonds or other agreements, and land conveyed by way of mortgage, have for a long time been governed by statutes (r). 509] *It would lead us too far beyond our present object to discuss the cases in which the question, often a very nice one, has arisen, whether a sum agreed to be paid upon a breach of contract is a penalty or liquidated damages. It may be noted however in passing that " the words liquidated damages or penalty are not conclusive as to the character of the sum stipulated to be paid." This must be determined from the matter of the agreement (s).^^ (p) Per Lord Hatherley C. Tliomp- Act 1852 (15 & 16 Vict. c. 76) s. 219. son V. Hudson (1869) L. R. 4 H. L. Bonds of the kind last mentioned 1, 15, 38 L. J. Ch. 431. hardly occur in modern practice. (q) Per Lord Thurlow, Slonian v. (s) Per Bramwell B. in Bctts v. Walter (1784) 1 Bro. C. C. 418. Re Burch (1859) 4 H. & N. 506, 511, 28 Dagenhani Dock Co. (1873) L. R. 8 L. J. Ex. 267, 271. The later cases Ch. 1022, is a good modern example. on this subject are — Magee v. Lavell ir) As to common money bonds 4 (1874) L. R. 9 C. P. 107, 43 L. J. & 5 Anne. c. 16 (3 in Rev. Stat.) C. P. 131 (authorities discussed by s. 13. As to other bonds and agree- Jessel M.R. ) ; Lord Elphinstone w ments 8 & 9 Will. III. c. 11. s. 8. The Monlland Iron and Coal Co. (1886) statutes (some of which have been 11 App. Ca. (Sc. ) 332; WalUs v. repealed by Statute Law Revision Smith (1882) 21 Ch. Div. 243. 52 L. Acts) are collected and reviewed in J. Ch. 145; Willson v. Love [1896] 1 Preston v. Dania (1872) L. R. 8 Ex. Q. B. 626, 65 L. J. Q. B. 474, C. A. 19, 42 L. J. Ex. 33. A mortgagee Cp. Weston v. Metrop. Asi/lum Dis- euing in ejectmeut, or on a bond triet (1882) 9 Q. B. Div. 404, 51 L. J. given as collateral security, may be Q. B. 399, on the similar question of compelled by rule of Court to recon- a penal rent. In the Indian Contract vey on payment of principal, interest. Act the knot is cut by abolishing the and costs: 7 Geo. II. c. 20, C. L. P. distinction altogether: see s. 74. 96 See Sun Publishing Co. r. Moore, 183 U. S. 642; Ne^^^:on v. Woolev, 105 Fed. Rep. 541; Chicago Wrecking Co. r. United States, 106 Fed. Rep! 306; '{ ' '■ l- SPECIFIC PERFORMANCE. 633 3. Peculiar Defences and Remedies d'erived from Equity. A. Defence against Specific Performance. When by reason of a mistake (e.g., omitting some terms which were part of the intended agreement) a contract in writing fails to ex- press the real meaning of the parties, the' party interested in having the real and original agreement adhered io.(e.^.^ the one for whose benefit the omitted term was) is in the following position. If the other party sues him for the specific performance of the con- tract as expressed in writing, it will be a good defence if he can show that the written contract does not represent the real agreement : and this whether the contract is of a kind required by law to be in writ- ing or not.^''^ Thus specific performance has been refused where a clause *had been introduced b}' inadvertence into the contract ( ^) . [510 It is sometimes said with reference to cases of this class that the remedy of specific performance is discretionary. But this means a judicial and regular, not an arbitrary discretion. The Court " must be satisfied that the agreement would not have been entered into if iU true effect had been understood" (ii). On the other hand a party cannot, at all events where the con- tract is required by law to be in writing, come forward as plaintiff to claim the performance of the real agreement which is not com- pletely expressed by the written contract.**^ Thus in the case of (/) Watson V. Marston (1853) 4 (u) Watsoti v. Marston, last note. D. M. & G. 230, 240. Brooks r. \Yicliita, 114 Fed. Rep. 297; Scofield v. Tompkins, 95 111. 190; Goodyear Co. v. Selz, 157 111. 180; Radloff v. Haase. 196 111. 365; Mclntire r. Cagley, 37 la. 676; Dwinel v. Bro\\Ti, 54 Me. 468, 471; Willson v. Mayor. 83 Md. 203; Wallis r. Carpenter, 13 Allen, 19; Guerin v. Stacey, 175 Mass. 595; Garst V. Harris, 177 Mass. 72; Trustees r. Walrath, 27 Mich. 232; Morris r. McCoy, 7 Nev. 399; Whitfield r. Levy, 35 N. J. L. 149: Bao-iev r. Peddie. 16 N. Y. 469; Curtis v. Van Bergh, 161 N. Y. 47; Thoroughgood v. Walker, 2 Jones L. 15; Wheedon v. American Trust Co. 128 N. C. 69; Knox Blasting Co. r. Grafton Stone Co., 64 Ohio St. 361; Salem v. Anson, 41 Oreg. 562; Shreve r. Brereton, 51 Pa. 175; Burgoon v. Johnston, 194 Pa. 61; Yenner v. Hammond. 36 Wis. 277. 97 Bradford r. Bank, 13 How. 57, 66; Osborn r. Phelps. 19 Conn. 63, 73; Lucas r. Mitchell, 3 A. K. Marsh. 244, 240; Bradbury r. \Miite. 4 :Me. 391; Chambers v. Livermore, 15 Mich. 381, 389; Best r. Stow, 2 Sandf. Ch. 298; Averett r. Lipscombe, 76 Va. 404. But where the defendant's mistake is only as to the legal effect of the con- tract, this is no defense. Caldwell r. Depew, 40 ]\Iinn. 528. 98 Independently of the Statute of Frauds, no good reason can be given why, in a case of mistake, he should not be permitted to do so ; and in this country it is generally held that a plaintiff may, in the same suit, have a written contract reformed for mistake, and the contract thus reformed S|>ecifica]ly enforced. Murphy v. Roonev, 45 Cal. 78; Rogers v. Atkinson, 1 Kelly, 12, 23-25; Hunter v. Bilveu, 30 111. 228; Schwass c. Hershey, 125 ID.' 353; G34 MISTAKE. TownsliPnd v. Siangroom (x) (referred to by Lord Hatherley when \'.-C. as perhaps the best iUustration of the principle) (y), there Avere cross suits (z), one for the specific performance of a written agreement as varied by an oral agreement, the other for specific per- formance of the written agreement without variation; and the fact of the parol variations from the written agreement 1)eing established, both suits were dismissed. And the result of a plaintiff attempting to enforce an agreement with alleged parol variations, if the defendant disproves the variations and chooses to abide by the written agreement, (x) (1801) 6 Ves. 328, 5R. R. 312. {z) Under the Judicature Acts iy) Wood V. Scarth (1855) 2 K. & there would be an action and counter- J. 33, 42. claim. Popplein V. Foley, 61 Md. 381; Mosby r. Wall, 23 Miss. 81; Keisselbrack i\ Livingston, 4 Jonns. Ch. 144; Stone r. Bellows, 14 X. H. 175, 201; Kelley v. McKinney. 5 Lea, 164; Fishack v. Ball, 34 W. Va. 644; Waterman v. Button, 6 Wis. 205. In some of the cases cited the contract was within the Statute of Frauds, but in other cases it is held that a court of equity has no power, on oral evidence, to reform a contract within the statute, so as to make it apply to a subject-matter to which, as written, it does not refer. May r. Piatt, [1900] I Ch. OIG; Osborn r. Phelps. 19 Conn. 63: Elder r. Elder, 10 Me. 80. Cp. Cline v. Hovev, 15 Mich. IS; Davis f. Eh^ 104 X. C. 16; Lee v. Hills, 66 Ind. 474. In Glass v. Hulbert, 102 Ma^s. 24. the plaintiff asked that a deed made to him should be so reformed as to accord with the oral agreement of the parties, by making it include land omitted by fraud or mistake. It was held that such relief must be denied. " Rectification by making the contract include obliga- tions or subject-matter to which its written terms will not apply is a direct enforcement of the oral agreement, as much in conflict with the Statute of Frauds as if there were no writing at all." To the same eflfect are Andrews Co. V. Youngsto\™ Co., 39 Fed. Rep. 353, 354: Cliurchill v. Ropers, 3 T. B. Mon. 81: Goode r. Rilev, 153 Mass. oS.5, 587; Macomber v. Peckham, 16 R. I. 485; Westbrook v. Harbeson, 2 McCord's Eq. 112. There are decisions, liowevcr. and numerous dicta, to tlie effect that a deed of, or contract to convey land may be rectified so as to conform to an oral agreement by making it include land to which its written terms do not applv. Johnson v. Bragge, [1901] 1 Ch. 28; [McDonald r. Yimgbluth, 46 Fed. Rep. 836; De Jarnett r. Cooper. 59 Cal. 703; Stevens v. Holman, 112 Cal. 345; Trout r. Goodman, 7 Ga. 383; Wall r. Arrington, 13 Ga. 88; Willis r. Hender- son, 4 Seam. 13: Conwav v. Gore, 24 Kan. 389: Ta^dor r. Deverell. 43 Kan 469; Worley r. Tuggle, 4 Bush, 168; Philpott r. Elliott, 4 Md. Ch. 273; Judson f. Miller, 106 Mich. 140: Craig r. Kittredge, 23 X, H. 231: Hitchins r. Pettin- gill, 58 X. H. 386: Wiswall' V. Hall. 3 Paige, 313; De Peyster r. Hasbrouck, II X. Y. 582; Smith r. Greely. 14 X. Y. 378; Beardsley v. Duntlev, 69 X. Y. 577, 584; Xeininger r. State, 50 Ohio St. 394; Blodgett v. Hobert, 18 Vt. 414; Petesch v. Hambach, 48 Wis. 443. The statute does not prevent the rectification of a deed so as to restrain its terms as written, and make them conform to the oral agreement. Cook r. Preston. 2 Root, 78; Warrick v. Smith, 137 111. 504; Hileman v. Wright. 9 Ind. 126; Athey v. McHenry, 6 B. Mon. 50; Worley (•■. Tuggle, 4 Bush, 168; Elder r. Elder,* 10 Me. 80. 90; Andrews r. Andrews. 81 Me. 337; Stockbridge Iron Co. V. Hudson Iron Co., 107 :Mass. 290, 321 ; Goode r. Rilev, 153 Mass. 585: West v. Mahanev. 86 Mich. 121: Gillespie v. Moon, 2 Johns. Ch. ,585; Xewsom r. BufTerlow." 1 Dev. En. 379; Busby r. Littlefield, 31 X. H. 193; Dennis r. Xorthern Pac. Co., 20 Wash. 320. PAROL VARIATIOXS. 63-5 may be a decree for the specific performance of tlie agreement as it stands at tlie plaintiff's cost (a). *But it is open to a plaintiff to admit a parol addition or varia- [511 tion made for the defendant's benefit, and so enforce specific perform- ance, which the defendant might have successfully resisted if it had been sought to enforce tlie written agreement simply. This was settled in Martin v. Pijcroft (h) :•'•* " The decision of the Court of Appeal pro- ceeded on the ground that an agreement by parol to pay 200/. as a premium for ... a lease [for which there was a complete agree- ment in writing not mentioning the premium] was no ground for refusing specific performance of the written agreement for the lease, where the plaintiff submitted by his bill to pay the 200/. The case introduced no new principle as to the admissibility of parol evi- dence " (c). Relation of this doctrine to Statute of Frauds. It is to be observed (though the observation is now familiar) that these doctrines are in principle independent of the Statute of Frauds (d). What the fourth section of the Statute of Frauds says is that in respect of the matters comprised in it no agreement not in writing and duly signed shall be sued upon. This in no way prevents either party from show- ing that the writing on which the other insists does not represent the real agreement; the statute interferes only when the real agreement cannot be proved Ijy a writing which satisfies its requirements. Then there is nothing which can be enforced at all. The writing cannot, because it is not the real agreement; nor yet the real agreement, because it is not in writing. A good instance of this state of things is Price v. Ley (e). The suit was brought mainly to set aside the (a) See Higginson y. CJoH'es (1808) ambiguous, he cannot take advantage 15 Ves. 516, 525, 10 R. R. 112; and of such an offer contained in his own such appears to be the real effect of jdeadings " to take up the other con- Fife v. Clayton (1807) 13 Ves. 546. struction which the defendant was at *S'.C. more fully given, with the de- one time willing to have performed ": ■eree, 1 C. P. Cooper (temp. Cotten- Cloires v. Hiqginson (1813) 1 Ves. ham) 351. In this case Lord Eldon & B. 524, 535,^12 R. R. 284. laid hold on the plaintiff's offer in (h) (18.52) 2 D. M. & G. 785, 22 general terms to perform the agree- L. J. Ch. 94. nient as amounting to an offer to (c) Per Stuart V.-C. Price v. Ley perform "what the Court, upon hear- (1863) 4 Giff. at p. 253. i'lg all the circumstances, should be (d) See per Lord Redesdale in eet, 10 Ohio St. 544; Huss r. Morris, 63 Pa. 367; Shat- tuck V. Gay, 45 Vt. 87; and supra, p. *5I0, n. 98. 6 And see Durham r. Insurance Co., 22 Fed. Rep. 468 : Keith v. Woodruff, 136 Ala. 443; Ward r. Yorba, 123 Cal. 447; Eureka V. Gates, 137 Cal. 89, 94; Brainard r. Arnold, 27 Conn. 617, 624; Baldwin v. Kerlin, 46 Ind. 426; Schoonover v. Dougherty, 65 Ind. 463 ; Royer Wheel Co. f. Miller, 18 Kv. L. Rep. 1831; Atlantic, etc., Coal Co. v. Maryland Coal Co., 64 Md. 302; Sawyer V. Hovey, 3 Allen, 331; Ludington v. Ford, 33 Mich. 123; Nebraska Trust Co. v. Ignowski, 54 Neb. 398; Ramsey r. Smith, 32 X. J. Eq. 28: Gough r. Williamson, 62 X. J. Eq. 526; Lyman r. Insurance Co., 17 Johns. 373, 377; Xevius V. Dunlap, 33 X. Y. 676: Bryce r. Insurance Co., 55 X. Y. 240: Mead l\ Inuran^ Co., 64 X. Y. 453; Born v. Schrenkeiser, 110 X. Y. 55; Curtis v. Albee, 167 X. Y. 360; Stewart r. Gordon, 60 Ohio St. 170: King v. Holbrook, 38 Oreg. 452; Cooper v. Insurance Co., 50 Pa. 299; Diman v. Railroad Co., 5 R. I. 130. But the instrument will be rectified when, by reason of mistake on the part of the plaintiff, and fraud on the part of the defendant, it fails, as written, to express the agreement actuallv made. Elliott v. Sackett, 108 U. S. 132: Simmons Creek Co. v. Doran, 142 'U. S. 417; Trenton Co. v. Clay Co. 80 Fed. Rep. 46; Dulo V. Miller, 112 Ala. 687; Essex v. Day, 52 Conn.' 483 Berger v. Ebey, 88 111. 269: Xew r. Wambach. 42 Ind. 456; Roszell v. Roszell 109 Ind. 354;'Wil]iams r. Hamilton, 104 la. 423; Metcalf r. Putnam, 9 Allen 97: Smith v. Jordan, 13 Minn. 264; Henderson r. Stokes, 42 X. J. Eq. 586 Wells r. Yates, 44 X. Y. 525; Kilmer r. Smith, 77 X^. Y. 226; Hay v. Insur ance Co., 77 X. Y. '235; Albany City Say. Inst. r. Burdick. 87 'x^. Y. 40 Husted r. Van Xess. 158 N. Y. 104: Day r. Day, 84 X. C. 408: Railroad Co r. Steinfeld, 42 Oliio St. 4-19: Archer r. California Limiber Co., 24 Oreg. 341 Cook V. Liston, 192 Pn. 19: Clack r. Hadley, 64 S. W. R«p. 403 (Tenn. Ch.) James v. Cutler, 54 Wis. 172. 640 MISTAKE. be used with extreme care and caution. To substitute a new agreement for one which the parties have deliberately subscribed ought only to be permitted iipmi evidence of a different intention of the clearest and most satisfactory desit'ription.7 It is clear that a person who seeks to rectify a deed upon the ground of mistake must be required to establish, in the clearest and most .satisfactory manner, that the alleged intention to which he desires it to be made conformable continued concurrently in tlie minds of all parties down to the time of its execution, and also must be able to show exactly and precisely llie form to which the deed ought to be brought. For there is a material difference between setting aside an instrument and rectifying it on the ground of a mistake. In the latter case you can only act upon the mutual and 516] con*current intention of all parties for whom the court is virtually making a new written agreement" (s) fi Proof of one party's intention will not do. So it has been laid down by the American Supreme Court that Equity may compel parties to (s) 4 De G. & J. at pp. 264-5. T The ordinary rule of evidence in civil actions that a fact must be " proved by a preponderance of evidence, does not apply to such a case as this. The proof that both parties intended to have the precise agreement set forth- inserted in the deed, and omittea to do so by mistake, must be made beyond a reasonable doubt, and so as to overcome the strong presumption arising from their signatures and seals, that the contrary was the fact." Hudson Iron Co. L'. Stockbridge Iron Co., 102 Mass. 45, 49. Compare Wall r. Meilke, 89 Minn. 232, 240, where the court said: "We have referred to the early case in this court of Guernsey v. American Ins. Co. f 17 Minn. 83] in which it was said that a mistake, in order to warrant the reformation and correc- tion of a written instrument, must be established ' clear of all reasonable doubt." That case has never been followed in this court, and certainly part of the language used was erroneous. The true rule is that equity will not reform an instrument on the ground of mistake unless the evidence is clear and convincing." See further Simmons Creek Co. i\ Doran, 142 U. S. 417 ; Van Fleet v. Sledge, 45 Fed. Rep. 743 ; Insurance Co. v. Hender- son, 69 Fed. Eep. 762; Pope v. Hooper, 90 Fed. Rep. 451, 453; Fulton r. Colwell, 112 Fed. Rep. 831; Hinton r. Insurance Co., 63 Ala. 488; Smith r. Allen, 102 Ala. 406 (cp. Miller r. Morris, 123 Ala. 164) ; Hochstein V. Berghauser, 123 Cal. 681; Bishop r. Insurance Co., 49 Conn. 167; Miner r. Hess, 47 111. 170; Linn v. Barkey, 7 Ind. 69; Tufts V. Larned, 27 la. 330; Brundige r. Blair, 43 Kan, 304; Tucker r. Madden, 44 Me. 206; Fessenden r. Ockington, 74 Me. 123; Andrews v. Andrews, 81 Me. 337; Insurance Co. V. Crane, 10 ]Md. 260; Stiles V. Willis, 66 Md. 552; Tripp v. Hasceig, 20 Mich. 254; State r. Frank, 51 ]Mo. 98; Henderson r. Stokes, 42 N. J. Eq. 586; Whelen i\ Osgoodby, 62 N. J. Eq. 571: Lyman r. Insurance Co., 2 Johns. Ch. 630; Coles i7."Bo\\Tie, 10 Paige, 526; FordV. Jovce, 78 N. Y. 618; Allison Bros. Co. V. Allison, 144 N. Y. 21; Christophor St. Rv. Co. r. Twentv-third St. Ry. Co., 149 N. Y. 51 (cp. Southard v. Curley, 134 N. Y. 148) ; Ely r. Earlv, 94 N. C. 1 ; Potter v. Potter, 27 Oliio St. 84; Xeininger r. State, 50 Ohio St. '394; Stewart v. Gordon. 60 Ohio St. 170; Shively r. Welch, 2 Greg. 288; Ed- niond's Appeal, 59 Pa. 220; Svlvius v. Kosek. 117 Pa. 67: Davidson r. Greer, 3 Sneed. 384; Clack /•. Hadley, 64 S. W. Rep. 403 (Tenn. Ch.) ; Gondell v. Field. 15 Vt. 448; Robinson V. Braiden, 44 W. Va. 183; Harter r. Cliristnph. 32 Wis. 245; Blake Co. v. Insurance Co., 73 Wis. 667; Meiswinkel r. St. Paul Infi. Co., 75 Wis. 147. Where the fact of a mistake in an instrument is admitted, a preponderance of evidence may be sufficient to show Avhat was intended to have been in- serted in place of the erroneovis matter. Bunse r. Agee, 47 Mo. 270. 8 St. Anthonv Falls Co. V. Merriman, 35 Minn. 42. RECTIFICATIOX, 641 perform their agreement, but has no power to make agreements^ for parties, and then compel them to execute the same (t) ; to the same effect in Rool-e v. Lord Kensington (u) by Lord Hatherley when V.-C. ; and more recently by James L. J. when V.-C. in Mackenzie v. Coulson {x). On this principle, as we have already seen, the juris- diction to rectify instruments does not extend beyond particular ex- pressions. The Court cannot alter that form of instrument which the parties have deliberately chosen {t). The Court therefore cannot act on proof of what was intended by one party only {y).^ And when an instrument contains a variety of provisions, and some of the clauses may have been passed over with- out attention, " the single fact of there being no discussion on a par- ticular point will not justify the Court in saying that a mistake com- mitted on one side must be taken to be mutual" (z). The Court will not rectify an instrument when the result of doing so would be to affect interests already acquired by third parties on the faith of the instrument as it stood (a). Without derogation from the above general rules, a contract of insurance is liberally construed for the purpose of reforming the policy founded upon it in accordance with the true intention {l)}^ Possible exception where one party acts as other's agent. There exists a rare class of cases (we know of only two complete instances at present, and none in a Court of * Appeal) in which the rule [517 tliat a common mistake must be shown may admit of modification, ^his is where one party acts as another's agent in preparing an in- strument which concerns them both — (in both the particular cases referred to an intended husband had the marriage settlement pre- pared in great haste and without any advice being taken on the wife's (t) Hunt V. Rousmaniere's Adm. (y) Hills v. Rowland (1853) 4 D. (1828) 1 Peters. 1, 14. M. & G. 430, 436. do (185G) 2 K. & J. 753, 764, 25 (z) Thompson v. Whitmore (1860) L. J. Ch. 795. 1 J. & H. 268, 276. (x) (1869) L. R. 8 Eq. 368, 375. (a) Blackie v. Clark (1852) 15 Cp. Bonhote v. Henderson [1895] 1 Beav. 595. Ch. 742, 64 L. J. Ch. 556, affd. [1895] (6) Equitable Insurance Company 2 Ch. 202, C. A. V. Hearne (1874) 20 Wallace (Sup. Ct. U. S.) 494. 9 t^upra, note 6. "A mistake on one side may be ground for rescinding, but not for reforming a written agi'eement." Hearne r. Insurance Co., 20 Wall. 488, 491; Moffett, etc., Co. v. Rochester. 178 U. S. 373; Dulany v. Rogers, 50 Md. 524, 533; Benson v. Markoe, 37 Minn. 30; Stewart v. Gor- don, 60 Ohio St. 170 ; Diman r. Railroad Co., 5 R. I. 130. 10 Insurance Co. r. Hearne, 20 Wall, 494. 41 64:2 JflSTAKE. part) — and that other gives no dofinite ingtructions, but relies on the good faith and competence of the acting party to carry out the- true intention. Here the acting party takes on himself the duty of framing a proper instrument — such an instrument, in fact, as would be sanctioned by the Court if the Court had to execute the agree- ment. And the instrument actually prepared, and executed by the other party on the assumption that it is properly framed, may be corrected accordingly (c).^^ But cases of this kind would perhaps be better put on the ground that the acting party is estopped by his conduct, having taken on himself a fiduciary relation and duty, from denying that the inten- tion of the other party was in fact the common intention of both. Compare p. *495, above. Reformation of settlements according to previous articles. The most fre- quent application of the jurisdiction of equity to rectify instruments is in the case of marriage and other family settlements (d), when there is a discrepance between the preliminary memorandum or articles and the settlement as finally executed. As to marriage settle- ments, the distinction was formerly held that if both the articles and the settlement were ante-nuptial, the settlement should be taken m case of variance as a new agreement superseding the articles, unless expressly mentioned to be made in pursuance of the articles ; but 518] that *a post-nuptial settlement would always be reformed in accordance with ante-nuptial articles. The modern doctrine of the Court has modified this as follows, so far as regards settlements exe*- cuted after preliminary articles but before the marriage : Special rules as to this. 1. When the settlement purports to be in pursuance of articles previously entered into, and there is any variance,, the variance will be presumed to have arisen from mistake. 2. When the settlement docs not refer to the articles, it will not be presumed, but it may be proved, that the settlement was meant (c) Clark v. Girdwood (1877) 7 L. J. Ch. 800. The Court of Appeal Ch. Div. 9, 47 L. J. Ch. 110, on the does not seem likely to extend thi^ authority of Corley v. Lord Stafford jurisdiction. See Tucker v. Bennett (18.57) i De G. & J. 2.38, where how- '(1887) .38 Ch. Div. 1, ,57 L. J. Ch. ever there was no rectification : a 507. later and verv similar case is Lovesy (d) See further on this subject V. Smith (1880) 15 Ch. D. 655, 49 Dav. Conv. .3, pt. 1. Appx. Xo. 3." 11 Williams r. North German Ins. Co., 24 Fed. Rep. 625; Abraham r^ North German Ins. Co., 40 Fed. Rep. 717; Palmer v. Hartford Ins. Co., .54 Conn. 488; Esch v. Home Ins. Co.. 78 la. 334. Cp. Scott r. Duncan, 1 Dev. Eq. 403. And see the cases cited supra, note 6, ad fin. EECTinCATION. 643 to be in conformity with the articles, and that any variance arose from a mistake. In the first case the Court will act on the presumption, in the second on clear and satisfactory evidence of the mistake (e). A settlement may be rectified even against previous articles on the settlor's uncontradicted evidence of departure from the real in- tention, if no further evidence can be obtained (/). The fact that a provision inserted in a settlement {e.g. restraint on anticipation of the income of the wife's property) is in itself usual and is generally considered proper, is not a ground for the Court refusing to strike it out when its insertion is shown to have been contrary to the desire of the parties and to the instruction- given by them (g). There is however a general presumption, in the absence of distinct or complete evidence of actual intention, that the parties intend a settlement to contain dispositions and provisions of the kind usual under the circumstances (li). *At whose suit rectification may be had. It is not necessary that a [51 9 person claiming to have a settlement rectified should be or represent a party to the original contract, or be within the consideration of it {i).^- Eut a deed which is wholly voluntary in its inception cannot be re- formed if the grantor contests it, but must stand or fall in its original condition without alteration (A:) ;^^ the reason of this has been ex- .plained to be that an agreement between parties for the due execution of a voluntary deed is not a contract which the Court can interfere to enforce (/). The Court has power, however, to set aside a volun- {e) Bold V. HxttchinsoH (\S55) 5 B. (f) Sinith v. Iliffe (1875) L. R, M. & G. 55S, 5G7, 5G8. In reforming a 20 Eq. 666, 44 L. J. Ch. 755 ; Eanley settlement the intent rather than the v. Pearson (1879) 13 Ch. D. 545. literal words of the articles will be (g) Torre w Torre (1853) 1 Sm. & followed: for a modern instance see G. 518. Cogan v. Dufpeld (1876) 2 Ch. Div. {h) See p. *500, above. 44, 45 L. J. Ch. 307. As to the gen- (?) Thompson v. Whitmorc (1860) eral principles on which courts of 1 J. & H. 268, 273. equity construe instruments creating {k) Broun v. Kennedy (1863) 33 executory trusts, see Hackrille-Wcst Beav. at p. 147. v. Viscount Holmesdale (1870) L,. ti. (?) Lister v. Hodgson (1867) L. R. 4 H. L. 543, 555, 565, 39 L. J. Ch. 505. 4 Eq. at p. 34. 12 But see Cook v. Walker, 21 Ga. 370. 13 Randall r. Ghent, 19 Ind. 271; Schoonover )•. DoughertA', 65 Ind. 463, 467; Shears v. Westover, 110 Mich. 505; Mudd v. Dillon. 166 Mo. 110; Mulock v. Mulock, 31 X. J. Eq. 594: Powell r. Morisey, 98 X. C. 426; Meeks v. Still- well, 54 Ohio St. 541 ; Willey r. Hodge, 104 Wis. 81. See also Miller r. Savage, 62 N. J. Eq. 746. This seems to have been overlooked in Atherton V. Roche, 192 111. 252, though for another reason relief was refused. 644 MISTAKE. tary deed in part only at the suit of the grantor if he is content that the rest should stand (m).^'*' The Court will exercise caution in rectifying a voluntary settle- ment at the instance of the settlor alone and on his own evidence (n). Rectification as alternative to cancellation. An agreement will not be cancelled at the suit of one party when he has rejected a proper offer to rectify it. It was agreed between A. and B. that A. should give B. the exclusive right of using a patent in certain districts : a document was executed which was only a licence from A. to B. Some time afterwards B. complained that this did not carry out the intention, and A., admitting it, offered a rectification. B. refused this and sued for cancellation. Held that the relief prayed for could not be granted (o). In certain cases already mentioned for another purpose (p) the plaintiff sought to reform an instrument, and satisfied the Court that it did not represent what was his own intention at the time of execution, but failed to establish that the other party's intention was the same; and the Court gave the defendant his choice of 520 ] " having *the whole contract annulled, or else of taking it in the form which the plaintiff intended "' (q). The anomalous character of these cases has already been pointed out. Disentailing deeds. The Court is not prevented by the Fines and Recoveries Act, ss. 40, 47, from exercising its ordinary jurisdiction to rectify the resettling part of a disentailing assurance (;•). Agreement executed by court. An agreement cannot be rectified after it has been adjudicated upon by a competent Court and performed under the direction of that Court (s). Mistake in wills. It is sometimes said, but inexactly, that in certain cases wills may be rectified on the ground of mistake (t). (to) Turnerv. Collins (1871) L. R. (18G2) 30 Beav. 445, 31 L. J. Ch. 1 Ch. 329, 342, 41 L. J. Ch. 558; G04:; Bloomer v. Spittle (1872) L. R. and see per Turner L.J. Bentley v. 13 Eq. 427, 41 L. J. Ch. 369. See Mackay ( 1S69) 4 D. F. & J. 286. May v. Piatt [1900] 1 Ch. 616, 69 L. («) Bonhote v. Henderson [18951 1 J. Ch. 357. Ch. 742. 64 L. J. Ch. 556, aflfd. [1895] (r) Hall-Dare v. Hall-Dare (1885) 2 Ch. 202, C. A. 31 Ch. Div. 251, 55 L. J. Ch. 154. (0) Larcr v. Dennett (1883) 109 (s) Caird v. Moss (1886) 33 Ch. U. S. 90. Div. 22, 55 L. J. Ch. 854. ip) Supra, pp. *476 — *478. (t) On this point, see the Appen- (7) Harris v. Pepperell (1867) L. dix, Note I. K. 5 Eq. 1, 5 ; Garrard V. Frankel 14 Mitchell r. Mitchell, 40 Ga. 11; Deischer r. Price, 148 111. 383; Purvines V. Harrison, 151 111. 219; Andrews v. Andrews, 12 Ind. 348; Day v. Day, 84 N. C. 408. rtECTIFICATION. 645 Minor points of procedure. Actions for the rectification of instruments must be assigned to the Chancery Division ; but where a statement of defence to an action brought in another Division is accompanied by a counterclaim for rectification, this is not a sufficient reason for trans- ferring the action (u). When a conveyance is rectified the order of the Court is sufficient without a new deed. A copy of the order is indorsed on the deed which is to be rectified (x). Consent orders. A consent order, being founded on agreement of the parties, may be set aside for mistake if the facts would justify setting aside an agreement on any of the grounds considered in the foregoing discussion (y). So where flie mistake as to the effect of the order is on one side only, but induced, however innocently, by the act of the other (z). (u) Storey V. Waddle (1879) 4 Q. Lister d Son [1895] 2 Ch. 273, 64 B. Div. 289. L. J. Ch. 523, C. A. {X) White V. White (1872) L. R. (2;) Wilding v. Sanderson [1897] 2 15 Eq. 247, 42 L. J. Ch. 288. Ch. 534, 66 L. J. Ch. 684, C. A. {y) H udders field Banking Co. v. 646 MISREPRESENTATION AND FRAUD. 521] *CHAPTER X. Misrepresentation and Fraud. Part I. — Generally. PAGE. Of misrepresentation in general, G46 As to innocent statements, 647 Deceit in relation to contract, 647 Judicial language as to " con- structive fraud " formerly am- biguous, 648 page. Estoppel, 648 Kepresentation as term of eon- tract, 649 The doctrine of " making repre- sentations good," 649 Part II. — Misrepresentation C. No general positive duty of dis- closure, But such duties implied in cer- tain contracts, Classes of contracts specially treated. Representations amounting to Warranty or Condition, Distinction between warranty and condition on sale of goods. Cases specially treated : A. Insurance, Marine Insurance, Life Insurance, Fire Insurance, B. Suretyship and Guaranty, Extent of creditor's duty to surety, 6.50 651 652 652 652 656 656 657 6.58 659 660 and non-disclosure. Sales of land. Specific performance and com- pensation : three classes of cases distinguished, General duty of vendor to de- scribe property correctly, WUde v. (Jihson considered, Family Settlements, Partnership, contracts to take shares in companies, and contracts of promoters, The Companies Act, 1900, Contract to marry not excep- tional, Voluntarv gifts. 662 663 669 671 673 674 676 677 678 Part III. — Fraud or Deceit Fraud generally but not always includes misrepresentation. Right of rescission. Fraudulent representation or con- cealment, "Active concealment/' Fraud as actionable wrong: reck- less ignorance equivalent to knowledge of untruth, 678 680 680 681 682 Representation of expectation as present fact. Special rule as to sales by auc- tion. Marriage an exception: n?t avoided by fraud. But knowledge of nature of cere- mony essential. Consent of third person procured by fraud is voidable, 683 684 685 685 686 Part I. — Generally. Misrepresentation by fraud or deceit. The consent of one party to a contract may be caused by a misrepresentation made by the other of some matter, snch that, if lie had known the trnth concerning it. he would not have entered into the contract. Putting off for a while the GENERAL PRINCIPLES. 647 ■closer definition of the term, we see at once that there is a broad dis- tinction between fraudulent and innocent misrepresentation. A state- ment may be made with knowledge of its falsehood and intent to mis- lead the other party, or with reckless ignorance as to its truth or falsehood. In either of these cases the making of such a statement is morally wrong and also wrongful in a legal sense, and the conduct of the party making it is called Fraud or Deceit, and may be a sub- stantive wrong giving rise to a claim for redress in damages, inde- pendent of any contract. The present writer has endeavoured to dis- cuss this aspect of it elsewhere (a). Innocent statements. On the other hand a man is generally safe, for the purpose now being considered, in stating as true that which he believes to be true. Still more is he safe in giving his opinion, as an opinion, for what it may be worth. If he communicates at the same time the grounds on which he formed his opinion, or reasonable means of access to those grounds, he has done all that an honest man can do. ^Deceit in relation to contract. Whenever consent to a contract is [522 obtained by deceit, the contract is voidable at the option of the party deceived, subject to the conditions to be presently mentioned. The other party cannot take advantage of his own wrong. We shall see that the working of this rule involves careful definition and distinc- tion; but the substance of the law now rests on fairly broad and simple grounds. A man who makes positive statements to the intent that ■ethers should act upon them is bound, at least, to state only what he believes to be true (&). Constructive or legal fraud. The combination of this principle with the still wider principle of responsibility for the acts and defaults of agents in the course of their employment gives rise to difficult ques- tions, and in some cases to consequences of apparent hardship. A man who had no fraudulent intention, or who has not even been per- sonally negligent, may be liable as for fraud. The ground of lia- bility in such cases is shortly described as " constructive fraud," or perhaps less aptly " legal fraud." The word " constructive " nega- tives actual fraud, but affirms that the actual conditions will have (a) In "The Law of Torts," Cli. there, is no general duty to use any viii. degree whatever of diligence in aa- (h) The House of Lords has de- certaining facts, as distinct from bare cided in Derry v. Peek (1889) 14 belief, in making positive statements App. Ca. 337, 58 L. J. Ch. 864, that intended for other people to act on. 648 MISREPRESEXTATION AND FRAUD. pimilar consequences. " Constructive possession '"' signifies, in the same way, that an owner out of possession has certain advantages originally given only to possessors; "constructive delivery" is a change of legal possession without change of physical custody; and we speak of "constructive notice" where the existence of means of knowledge dispenses with the proof of actual knowledge. Former vagueness of judicial language. It must be remembered that for a long time equity judges and text writers thought it necessary or prudent for the support of a beneficial jurisdiction to employ the term "Fraud" as nomen gcneraUssimum (c). "Constructive 523] *fraud " was made to include almost every class of cases in which any transaction is disallowed, not only on grounds of fair dealing be- tween the parties, but on grounds of public policy ((7). This lax and ambiguous usage of the word was confusing in the books and not free from confusion in practice. Plaintiffs were too apt to make un- founded charges of fraud in fact, while a defendant who could and did indignantly repel such charges might sometimes divert attention from the real measure of his duties. Cases in which there was actual fraiad or culpable recklessness of truth were not sufficiently distin- guished from cases in which there was only a failure to fulfil a special duty. But it seems needless at this day to pursue an obsolete verbal controversy. Estoppel. Innocent representations are not necessarily harmless to the person making them. They may give rise to liability, or, as it is more exact to say, representations may give rise to liability without any need for determining whether they are innocent or otherwise (a matter sometimes far from easy to determine) (e), in various ways. A statement made on quite reasonable grounds may nevertheless be defamatory and actionable; but this is remote from our subject. The rule of estoppel comes nearer to it. " Where one by his words or conduct wilfully causes another to believe the existence of a certain state of things and induces him to act on that belief, so as to alter (c) James L.J. L. R. 8 Ch. at p. plained of \vas occasioned by inten- 124. tional fraud or by mere inadvertence id) See Story's Eq. Jurisp. ch. vii. or mistake. Indeed, upon the very (e) Cp. Wasatch Mining Co. v. same state of facts an intelligent Crescent Mining Co. (1893) 148 U. S. man, actinor deliberately, might well 293, 298, per Cur.: — "In equitable be regarded as guilty of fraud, and remedies given for fraud, accident or an ignorant and inexperienced person mistake, it is the facts as found that might be entitled to a more fharita- give the right to relief, and it is ble view. Yet the injury to the com- often difficult to say. upon admitted plainant would be the same in either facts, whether the error which is com- case." REPRESENTATIONS AND ESTOPPEL. 649 his own previous position, the former is concluded from averring against the latter a different state of things as existing at *the [524 same time" (/). And "whatever a man's real intention may be," lu; is deemed to act wilfully " if he so conducts himself that a reason- able man would take the representation to be true, and believe that it was meant that he should act upon it " (g). The rule is not a rule of substantive law, in the sense that it does not declare any immediate right or claim. It is a rule of evidence, but capable of having the gravest effects on the substantive rights of parties. Representation as term of contract. Again, the existence of a certain state of facts, or the truth of a certain assertion, may be made a con- dition or term of a contract, apart from any question of good faith, so that if the fact be otherwise the proposed contract may never be- come binding, or else there may be a non-performance or breach of the contract, with the usual consequences. Such conditions or terms are in some important kinds of contracts implied by special rules of law. Overlapping of distinct grounds of liability. It will be observed that these possible qualities of a representation are not mutually exclusive. One and the same statement may well be a deceit and a breach of con- tract and capable of operating by estoppel (h). The exploded doctrine of " making representations good." During a cer- tain time some Judges in the Court of Chancery seem to have thought that under certain conditions a representation which is not operative ai- part of a contract, or by way of estoppel, or as amounting to an actionable wrong, may still be binding on the person making it. But, when these three effects are duly considered, it appears that there is no other way in which it can be binding. To say that a man is answerable for the truth of his statement is to say that it is his legal duty to see that it *is borne out or to [525 make compensation for its not being borne out. We need not here dwell on cases of deceit, or of estoppel independent of contract. Then, if the statement is of a fact, and made as an inducement to another person to enter into a contract, the substance of the duty can only be that the person making the statement undertakes that it is true. In if) Pickard v. Sears (1837) 6 A. {h) See per Lord Blackburn in & E. 469, 45 R. R. 538. Broivnlie v. Campbell (1880) 5 App. {g) Freeman v. Cooke (1848) 2 Ca. 925, 953. A bint of this was Ex. 654, 18 L. J. Ex. 114, Finch Sel. already given by Parke B. in Free- Ca. 483. See further Bifjelow on man v. Cooke, last note: see the end Estoppel, 4th ed. 1886, ch. xviii. of the judgment. 650 MISREPRESENTATION AND FRAUD. tliat case must not his undertaking be a contract or a term in the contract? For if not. why shouhl it bind him? It might peradven- ture work an estoppel also, but for all j^ractical intents the estoppel is merged in the contract. Representation of the future operates as promise if at all. If, on the other hand, the statement is of something to be performed in the future, it must be a declaration of the party's intention unless it is a mere expression of opinion. But a declaration of intention made to another person in order to be acted on by that person is a promise or nothing. And if the promise is binding, the obligation laid upon its utterer is an obligation by way of contract and nothing else : promises de. futuro, if binding at all, must be binding as contracts {i)} There is no middle term possible. A statement of opinion or expectation creates, as such, no duty. If capable of creating any duty, it is a promise. If the promise is enforceable, it is a contract. The de- scription of promise or contract in a cumbrous and inexact manner will not create a new head of law. " There must be a contract in order to entitle the party to obtain any relief ^'(fc). Part II. — Misrepresentation and Xon-disclosure. No general positive duty of disclosure. So far nothing has been said of any affirmative duty to tell the whole truth in relation to the 526] matter of a contract, *as distinct from the negative duty of telling nothing but the truth, or at least what one honestly holds for truth. In general one is not bound in law to disclose in the treaty lor a contract all known facts which may be material to the other party's judgment, nor even to remove a mistake not induced by one's own act {I). Non-disclosure of a material fact which one was not specially bound to disclose is no defence to an action for specific per- (i) Lord Selborne, Maddison v. Al- so much for any probable use to prac- derson (1883) 8 App. Ca. at p. 473. titioners as for the sake of students {k) Per Cozens-Hardy J. Re Fickus who may still be perplexed by some [1900] 1 Ch. 331, 334. Earlier au- of these cases. No such doctrine, I thorities on the supposed equitable understand, has ever become current doctrine of "making representations in America. fjood " are discussed in the Appendix, (/) Smith v. Hughps (1871) L. R. Xote K, which is now preserv^ed not 6 Q. B. 597, 40 L. J. Q. B. 221. 1 Comstock V. Herron, 55 Fed. Rep. 807; Brightman r. Hicks, 108 Mass. 246; Bragg v. Danielson, 141 Mass. 195; Knowlton r. Keenan, 146 Mass. 86; Dawe V. Morris, 140 Mass. 188: Prescott r. Jones. 69 N. H. 305. 307: White v. Ashton. 51 N. Y. 280. But see The M. F. Parker, 88 Fed. Rep. 853; Beatty f. Western College, 177 111. 280: Ricketts r. Scothorn, 57 Neb. 51, where promises were enforced on the ground of estoppel. SPECIAL KINDS OF COXTRACTS. 651 formance fm). And if one party asks a question which the other i,-: not bound to answer, and it is not answered, he is not entitled to treat, the other's silence as a representation (n) ; that is, when there is reall^y nothing beyond silence. A very slight departure from passive acquiescence might be enough to convert a lawful though scarcely laudable reserve into an actionable deceit. This must in every case be a question of fact. But such duties are implied in certain contracts. There are several kinds of contracts, however; such that the one party must in the ordinary course of business take from the other, wholly or to a great extent, the description of the subject-matter of the contract. Xow the parties may if they please make any part of that description a term or even a preliminary condition (o) of the contract. Whether they have done so is a question of construction (p). But therein the nature of the contract, and the extent to which an erroneous description or material •Cimission may deprive either party of the benefit to be reasonably ex- pected, will justly count for much. More than this *fixed [527 rales on this point have been established as to particular classes of contracts, and in some of these they go to the extent of a positive duty ■of disclosure; not only that all information given shall be true, biit that all material information shall be fully as well as truly given. The character and stringency of the duties thus imposed varies ac- cording to the specific character and risks of the contract. It will be convenient to take a view of the classes of contracts thus treated be- fore we examine in detail the universal rules as to Deceit. These classes are believed to be the following. It is by no means certain, however, that the same principle may not be applicable in other forms. The development of modern commerce may bring into promi- nence new kinds of transactions in which the subject-matter of the contract, or a material part of it, is within the peculiar knowledge of {m) Turner v. Green [1895] 2 Ch. (o) In such a case it has been said 205, 64 L. J. Ch. 539. that tliere is not a conditional prom- (n) Laidlaio v. Organ (1817) 2 ise, but either an absolute promise or Wheat. 178: a sale of tobacco; the no promise at all: Langdell. § 28- buyer knew, and the seller did not. But see Holmes, " The Common that j>eace had been concluded be- Law," 304. tween the U. S. and England; the {p) Behii v. Burness (18G3) Ex. Fpller asked if there was any news af- Ch. 3 B. & S. 751, 32 L. ,T. Q. B. 204; fecting the market price; the buyer Banncrman v. White (1861) 10 C. B. gave no answer, nor did the seller in- N. S. 844, 31 L. J. C. P. 28, Finch sist on one. Held that the buyer's Sel. Ca. 473. silence was not fraudulent. Cp. I. C. .A. s. 17, illustration {d). 652 MISREPBESENTATION AND FRAUD. one party, and the other has to rely, in the first instance at all events, on the correctness of the statements made by him. Contracts specially treated. (A) Insurance. (B) Suretyship and guaranty (as to certain incidents only). (C) Sales of land. (D) Family settlements. (E) The contract of partnership, and thence, by analog}^, con- tracts to take shares in companies and contracts of promoters. We proceed to follow out these topics in order. And first we shall say something in general of representations which amount to a con- dition or a warranty. Bepresentations amoiiniing to Warrant 1/ or Condition. Distinction between warranty and condition. The law on this subject is to be found chiefly in the decisions on the sale of goods ; the principles however are of general importance, and not without analogies, as we shall presently see, in other doctrines formerly treated as peculiar 528] to equity. "We therefore mention the leading *points in this place, though very briefly. In the first place a hujer has a right to expect a merchantable article answering the description in the con- tract iq) f but this is not on the ground of warranty, but because the seller does not fulfil the contract by giving him something dif- ferent. " If a man offers to buy peas of another and he sends him beans, he does not perform his contract; but that is not a warranty; there is no luarranty that he should sell him peas; the contract is to sell peas, and if he sends him anything else in their stead it is a (g) Jones v. Just (1868) L. R. 3 App. Ca. 284, 56 L. J. Q. B. 563; Q. B. 197, 204, 37 L. J. Q. B. 89; Sale of Goods Act, 1893, ss. 13, 14. Drummond v. Fo)i Ingen (1887) 12 2Dushane r. Benedict, 120 U. S. 630; Babcock v. Trice, 18 111. 420; Doane r. Dunham, 65 111. 512; McCIung r. Kelly, 21 la. 508; Warren v. Arctic Ice Ck)., 74 Me. 475; Hastings v. Levering, 2 Pick. 214; Gossler c. Eagle Sugar Refinery, 103 Mass. 331; Gould r. Stein, 149 Mass. 570; Murchie i\ Cornell, 155 Mass. 60; Alden v. Hart, 161 Mass. 576; Whitaker r. McCormick, 6 Mo. App. 114; Howard V. Hoey, 23 Wend. 350; Carleton i\ Lombard, 149 N. Y. 137, 601; Bierman r. City Mills Co., 151 N. Y. 482; Cullon v. Bimm, 37 Ohio St. 236, 240; Jennings r. Gratz. 3 RaAvle, 168; Brantley v. Thomas. 22 Tex. 270 ; Hood r. Bloch, 29 W. Va. 244 ; Morehouse v. Comstock, 42 Wis. 626. But see contra, Ryan r. Ulmer. 108 Pa. 332; Ulmer v. Rvan, 137 Pa. 309. See also De Witt i\ Berrv, 134 U. S. 306; White r. Oakes, 88 Me. 367; Ivans V. Laurv. 67 N. J. L. 153; Waeber v. Talbot, 167 N. Y. 48; Sellers v. Steven- eon, 163 Pa. 262. COXDITIONS. 653 Don-performance of it " (r).^ So that, even if it be a special term of the contract that the buyer shall not refuse to accept goods bought by sample on the score of the quality not being equal to sample, but shall take them with an allowance, he is not bound to accept goods of a dif- ferent hind (s).* It is open to the parties to add to the ordinary description of the thing contracted for any other term they please, so as to make that an essential part of the contract : a term so added is a condition. If it be not fulfilled, the buyer is not bound to accept (r) Lord Abinger C. B. in CJtunter said that there is a loarranty that V. Hopkins (1838) 4 M. & W. at p. 404, the goods shall be merchantable be- 51 R. E. 654, G55 ; "as sound an sides the condition that they shall exposition of the law as can be," per answer the description : Mody v. Martin B. Azemur v. Casella (1867) Gregson (1868) L. R. 4 Ex. 49, 38 (Ex. Ch.) L. R. 2 C. P. 077, 679. 36 L. J. Ex. 12. L. J. C. P. 263. There is a class of (s) Azemar x. Casella (1867) L. R. cases, however, in wliich it is com- 2 C. P. 431, in Ex. Ch. 677, 36 L. J. monly, and jjerhaps conveniently, C. P. 124, 263. 3 " In strictness, both warranty and rescission import that the subject is within the contract, and passed to the purchaser by its operation. The rejection of articles of a different kind or description, not answering to the terms of the contract, does not stand upon the ground of rescission ; nor does the right to return them depend upon the existence of a warranty." Mans- field V. Trigg, 113 Mass. 350, 354, 355; Pope v. Allis, 115 U. S. 363; Bagley r. Cleveland Rolling Mill Co., 21 Fed. Rep. 159, 162; Coit c. Schwartz, 29 Kan. 344, 347; Fogg's Admr. i\ Rodgers, 84 Ky. 558; Columbian, etc., Co. V. Douglas, 84 Md. 44. But it is generally held that the sale of goods by a particular description may also be treated as a warranty that thev answer the description. Dushane v. Benedict, 120 U. S. 630; Babeock v. Trice, 18 111. 420; Morse v. Moore, 83 Me. 473; Osgood r. Lewis, 2 H. & G. 495; Hastings r. Lovering, 2 Pick. 214; AVilson ;;. Lawrence. 139 Mass. 318; Gould v. Stein, 149 Mass. 570; Edgar r. Breck, 172 Mass. 581; Whitaker i\ McCormick, 6 Mo. App. 114; Van Wyck r. Allen, 69 N. Y. 61; White v. Miller, 71 N. Y. 118; Fairbank Canning Co. r. Metzger, 118 N. Y. 260; Morse v. Union Stock Yard Co., 23 Oreg. 289; Borrekins v. Bevan, 3 Rawle, 23; Hoffman v. Dixon, 105 Wis. 315. " The right to repudiate the purchase for the non-conformity of the article delivered, to tlie description under Avliich it was sold, is universally conceded. Tliat riglit is founded on tlie engagement of the vendor, by sucli description, that the article delivered shall correspond with the description. Tlie obligation rests upon the contract. Substantially the description is warranted. It will comport with sound legal principles to treat such engagements as conditions in order to afford the purchaser a more enlarged remedy, by rescission, than lie would have on a simple warranty ; but when his situation has been changed, and the remedy, by repudiation, has become impossible, no reason supported bv principle can be adduced why he should not have upon his contract such redress as is practicable under the circumstances. In that situation of affairs the only available means of redress is by an action for damages. Whether the f^"tinn shall be technically considered an action on a warranty, or an action for the non-performance of a contract, is entirely immaterial." Wolcott V. Mount, 36 N. J. L. 262, 266, 267; Bagley v. Cleveland Rolling Mill Co., 21 Fed. Rep. 159, 165. <- So, if goods sold are to be taken with all faults, the buyer cannot reject them for faults not inconsistent with their identity as goods of the kind described, but would not be obliged to accept them if of a different kind. Whitney v. Boardman, 118 Mass. 242. C54 MISREPRESENTATION AND FRAUD. ilie goods.^ " Condition " is purposely not defined by the Sale of Goods Act, though "warranty" is (/)." On a bargain and sale of fapecific goods with a warranty the buyer cannot reject them (m)/ but (t) Sect. 62, and see App. II., note Q. B. 477, 30 L. J. Q. B. 270; but as (a), in Mr. Chalmer's edition of the to the application of the rule in the Act. partir-ular case see Benjamin, p. 936, (u) Sale of Goods Act, s. 53; Ecy- 4th ed. worth V. Hutchinson (1867) L. R. 2 5 On a bargain and sale of a specific article, described as a certain substance,, the purchaser is not bound to accept, or keep it, if it turns out to be a different substance. Varley v. Whipp, [1900] 1 Q. B. 513; Henshaw r. Robbins, 9 Met. 83; Hawkins v. Pemberton, 51 N. Y. 198. In Lord v. Grow, 39 Pa. 88, it was held that on a sale of personal prop- erty on inspection, there is no engagement on the part of the vendor that it is of the kind it is sold for, though the difference in species be not discoverable by inspection. See also ]\lahaffey r. Ferguson, 156 Pa. 156. Contra, that there is an implied warranty to that efl'ect, see Fogg's Admr. v. Rodgers, 84 Kv. 558; Henshaw r. Robbins, 9 Mot. 83: Wolcott v. Mount, 36 N. J. L. 262; 38 N. J. L. 490; Hawkins v. Pemberton, 51 N. Y. 198. So it is held that there is an implied warranty on the sale of a note, bill,, bond, or certificate of stock, that it is a genuine obligation of the sort it purports to be and is sold for. Utley t*. Donaldson, 94 U. S. 29 ; Snyder v. Reno, 38 la. 329; Russell v. Critchfield, 75 la. 69; Smith v. McNair, 19 Kan.. 330; Ware V. McCormack, 96 Ky. 139; Merriam r. Wolcott, 3 Allen, 258; Worthington r. Cowles, 112 Mass. 30; Ripley r. Case, 86 Mich. 201; Brown r. Ames, 59 Minn. 476; Palmer v. Courtney, 32 Neb. 773; Wood v. Sheldon,. 42 N. J. L. 421; Frank r. Lanier, 91 N. Y. 112; Bank r. Gallaudet, 120 N. Y. 298: McClure r. Central Trust Co., 105 N. Y. 108; Dumont r. Williamson,. 18 Ohio St. 515; Aldrich r. Jackson. 5 R. I. 218; Gifi"ert r. We.st, 33 Wis. 617, So on the sale of a judgment. Flandrau v. Hammond, 148 N. Y. 129. Or mortgage. Waller r. Staples, 107 la. 738. It has been held that on the sale of a negotiable note there is no implied warranty that it is not void for usury. Littauer v. Goldman, 72 N. Y. 506. But the correctness of this decision has been denied. Mever r. Richards, 163 U. S. 385, 411; Wood v. Sheldon, 42 N. J. L. 421, 425; Haiinum V. Richardson,. 48 Vt. 508 ; Daskam v. Ullman, 74 Wis. 474. There is no warranty on the sale of a note that the maker is solvent. Hecht V. Batcheller, 147 ]\Iass. 335. But to sell a note with knowledge that the maker is insolvent and to conceal that fact is fravidulent. Sebastian May Co. V. Codd, 77 Md. 293: Brown r. Montgomery, 20 N. Y'. 287; Rothmiller v. Stein, 143 N. Y. 581, 592. On a sale of bonds or certificates of stock purporting to be issued by a cor- poration, there is an implied warranty tliat they are genuine, i. e., not for- geries, but not that their issuance was within the power of the corporation,. or that they were not fraudulentlv issued bv its officers. Otis v. Cullum. 92 U. S. 447; Harvev v. Dale, 90 Cal."^160; First Bank r. Drew, 191 111. 180; Hig- gins V. Illinois Bank, 193 111. 394; Harter r. Elzroth, 111 Ind. 159; Maze r. Owingsville Banking Co.. 23 Ky. L. Rep. 574: White r. Robinson, 50 Mich. 73: Bank r. Kurtz, 99 Pa. 344.' But see as to the law of Louisiana, Meyer V. Richards, 163 U. S. 358. One who presents a power of attorney to transfer stock, upon the faith of which the corporation issues to him a new certificate of stock, impliedly warrants the genuineness of the power of attornev. Oliver r. Bank of England, [1901] 1 Ch. 652, [1902] 1 Cli. 610; Railroad Co. r. Richardson, 13.5 Mass. 473. 6 On the propriety of the distinction between these so-called conditions and warranties, see 1 Col. L. Rev. 71; 16 Harv. L. Rev. 465. 7 In this country wherever rescission is allowed for breach of warranty, a ■fortiori, the buyer may refuse to receive the goods. See ante, p. 607, n. 67 ; also 16 Harv. L. Rev. 467. WARRANTY AND CONDITION. 655 he may obtain compensation by way of deduction from the price, or by a cross action (v).^ *No small confusion has been caused by the use of the word [529 ivarranbj where the thing meant in the first instance is really a con" dition. The proper meaning of warranty appears to be an agreement which refers to tlie subject-matter of a contract, but, not being an essential part of the contract either by the nature of the case or by thft agreement of the parties, is " collateral to the main purpose of such contract ''(a:). The so-called implied warranties of qualit}^, fitness, and condition of goods sold are really conditions; if the goods tendered in performance of the contract do not satisfy those conditions, they may be rejected. But the buyer may, if he thinks fit, accept the goods and claim damages for the defect ; in other words, he may treat the breach of condition as a breach of warranty. And after goods have been accepted, or the property in specific goods contracted for has passed to the buyer, " the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for re- jecting the goods and treating the Contract as repudiated, unless there be a term of the contract, express or implied, to that effect" (y).^ Conditions of this kind include a warranty from the first, and may be reduced to a warranty if the buyer does not take advantage of tljem in time. But a condition and a warranty are not therefore the same thing. Similar questions have not unfrequently arisen on the construction of charter-parties. Thus in Bchn v. Burness {z^^ it was agreed that the plaintiff's ship " now in the port of Amsterdam " should go to an English port and load a cargo of coals. The ship did not in fact reach the port of * Amsterdam till some days after the date of [530 the contract. It was held that the description of her as in the port of (r) The reduction of the price can Q. B. 204. Was the charter-party- be only the actiial loss of value: any void or only voidable? See 0. W. further daniaoes must be the subject Holmes, The Common Law, 329. I of a counter-claim (under the old submit that it was void, but the practice a separate action) : Mondel plaintiff would have been estopped Y. meel (1841) 8 M. & W. 858, 871, from showing that his own statement 10 L. J. Ex. 420. that his ship was in the port of Am- (,t) See note {t), above. sterdam was not true: cp. pp. *495, (y) Sale of Goods Act. 189.3, s. 11. *496, above. (z) (1863) 3 B. & S. 751, 32 L. J. SGilmore v. Williams. 1G2 Mass. 352. 9 See 4 Col. L. Rev. 195. 10 See also Ollive r. Booker, 1 Ex. 416; Bentsen x\ Taylor, [■1893] 2 Q. B. 274: Davison r. Von Linp-en. 113 I'. S. 40; Grav r. Moore, 37 Fed. Rep. 266; Tlip B. F. Bruce. .lO Fed. Rep. 123: Olsen r. Hunter-Benn, 54 Fed. Rep. 530; Langdell, Summary of Contracts, § 28. G5G MISREPRESENTATIOX AXD FRAUD. Amsterdam was a condition, and that by its non-fulfilment the defend- ant was discharged from his obligation to load a cargo. It should be remembered that the nse of the word " warrant " or " warranty " is not conclusive, the question being what is the true intention of the contract as a whole (a). We pass on to the contracts above men- tioned as being under exceptional rules. A. Insurance. Concealment of material facts wdll avoid a contract of insurance of any kind (&). Marine insurance: duty of disclosure. As to marine insurance, not only misrepresentation but concealment (c) of a material fact, " though made without any fraudulent intention, vitiates the policy" {d),^^ that is, makes it voidable at the underwriter's elec- tion (e). For this purpose a material fact does not, on the one hand, mean only such a fact as is " material to the risks considered in their own nature ''; nor on the other hand does it inchide everything that might influence the underwriter's Judgment: the rule is "that all should be disclosed which would aflect the judgment of a rational underwriter governing himself by the principles and calculations on which undcr- 531 ] writers do in practice act" (/).^" *The only exception is that the insured is not bound to communicate anything which is such matter of general knowledge that he is entitled to assume the under- (o) See Barnard v. Faher [1893] 1 (e) See Morrison v. Universal Ma- Q. B. 340, G2 L. J. Q. B. 159, C. A. rine Insurance Co. (1873) L. R. 8 "A stipulation may be a condition, Ex. 197, 205, 42 L. J. Ex. 115. though called a warranty in the con- {f) Parsons on Insurance, adopted tract": Sale of Goods Act, 1893, per cur. lonidcs v. Pender (1874) s. 11. L. R. 9 Q. B. at p. 539. What falls (&) Seaionv. Heath [1899] 1 Q. B. within this description is a question 782. 792, 08 L. J. Q. B. 031, C. A. of fact: Stribley v. Imperial Marine (revd. in H. L. on facts only [1900] Insurance Co. (1870) 1 Q. B. D. 507, A. C. 135, 09 L. J. Q. B. 409). 45 L. J, Q. B. 390. And the policy (c) This is the usual word, but will be vitiated by concealment of a non-disclosure would be more accu- fact material to guide the under- rate, writer's judgment, though not male- (d) lonides v. Pender (1874) L. R. rial to the risk insured against in it- 9 Q. B. 531, 537. 43 L. J. Q. B. 227, self: Riraz v. Gerussi (1880) Q. B. 2 Wms. Saund. 55.5-9. Diy. 222, 50 L. J. Q. B. 170. n:\rcLanahan i\ Insurance Co., 1 Pet. 170, 185: Hart r. British Ins. Co., 80 Cal. 440; Fiske r. Insurance Co., 15 Pick. 310, 310; Stocker r. Insurance Co., Mass. 220, 225; Howell r. Insurance Co., 7 Ohio, 270, 282; Insurance Co. r. Stoney, Harper, 235. 12 Insurance Co. V. Ruden's Admr.. 6 Cr. 338 ; Rosenheim v. Insurance Co., 33 Mo. 230. LIFE INSURANCE. 657 Avriter knows it already (g) :^^ and the obligation extends not only to fcicts actually within the knowledge of the assured, but to facts which in the ordinary course of business he ought to know, though by the fraud or negligence of his agent he does not know them (h).^^ Life insurance. As regards life insurance, the assured is bound to disclose all material facts within his knowledge affecting the life on which the insurance is made (i). But where that life is not his own but some other 23erson's, that person is not his agent, and if " the life " or his referees make false statements which are passed on in good faith by the assured, their falsehood will not of itself avoid the con- tract (A-).i^ Practically life policies are almost always framed with some sort of express reference to the statements made by the assured as to the health and circumstances of " the life." Not unfrequently it is pro- ig) Morrison v. Universal Marine ing from the particular facts so with- Insitrance Co. (1873) L. R. 8 Ex. 40, held: Striblet/ v. Imperial, dc. Co., 42 L. J. Ex. 115. note if), supra: but see per Lord (h) Proud f oot V. Montefiore {18G7 ) Watson. 12 App. Ca. at p. 540. L. R. 2 Q. B. 511, 36 L. J. Q. B. (i) See authorities collected in 225. This applies only to the agent London Assurance v. Mansel (1879) through whom the insurance was 11 Ch. D. 363, 48 L. J. Ch. 331. actually effected: Blackburn v. Vig- (k) Wheelton v. Hardisty, 8 E. & ors (1887) 12 App. Ca. 531, 57 L. J. B. 232, in Ex. Ch. 285, 26 L. J. Q. B. ■Q. B. 114; unless there is a continu- 265, 27 ih. 241. The judges appear ous negotiation by more than one to have been inclined to restrict the agent: Blackhurn v. Easlam (1888) view taken before and since of the 21 Q. B. D. 144, 57 L. J. Q. B. 479. uberrima fides generally required in Xon-disclosure by an agent of the as- this contract, unless the dicta (which sured, without fraudulent intention, in any case decide nothing) can be has been held to avoid the policy only taken as limited to the special ease to the extent of the loss or risk aris- before them. iSRuggles V. Insurance Co., 4 Mason, 74, 80: Kohne r. Insurance Co., 1 Wash. C. C. 158; Folsom r. Insurance Co., 8 Blatchf. 170; De Longuemere v. Insurance Co., 10 Johns. 120; Insurance Co. v. Stoney, Harper, 235. The assured's failure to disclose material facts is not excused on the ground that they were actually known to the underwriters unless the knowledge of the latter was as full and oarticular as his own information. Sun Mutual Ins. Co. V. Ocean Ins. Co., i07 U. S. 485; Moses v. Insurance Co., 1 Wash. C. C. 385. 14 Cp. Ruggles V. Insurance Co., 4 Mason, 74 ; Insurance Co. v. Ruggles, 12 Wheat. 408; Folsom r. Insurance Co., 8 Blatchf. 170. In Snow i\ Insurance Co., 61 X. Y. 160, it was held that a person at Liverpool, having directed a marine insurance to be procured at New York, and having subsequently re- ceived intelligence of a loss before his order was executed, was not bound to transmit news of the loss, or countermand the order by ocean telegraph, although such telegraph was then " used by merchants and others, whenever in their judgment the interests of their business required the necessary ex- pense," the telegraph having been in operation between the two places about three months, the rates being high, and the messages both ways averaging but about twenty-nine per day. Cp. Proudfoot r. Montefiore, .supra. See also as to non-disclosure by an agent, Hamblet r. City Ins. Co.. 36 Fed. Rep. 118. 15 See also Penn Ins. Co. v. Mechanics' Bank, 72 Fed. Rep. 413, 437. 43 G58 MISREPRESENTATION AND FRAUD. \ided that the decharation of the assured shall be the basis of the contract; and if the declaration thus made part of the contract is not 532] confined to the belief of the party/*^ but is positive and *un- qualified, then the contract is avoided by any part of the statement being in fact untrue (l),^' though not to the knowledge of the as- sured (tn),^^ or by the concealment of any material fact (n).^'' On the same ground the grant of a life annuity by tlie Commis- sioners for the Reduction of tlie National Debt was set aside at the suit of the Crown, the age of the life having been mis-stated; not so much on the ground of misrepresentation simply, as because, con- sidering the statutory powers and duties of the commissioners, " it was an essential part of the contract itself that the representation should be true " (o). The principles applicable to insurance against accidents are the tame (p). Fire insurance. The contract of fire insurance is treated in some- what the same way as that of marine insurance (which it resembles (?) It need not be shown that the true, so misleading as it stands as to particular mis-statement was mate- be in effect untrue. rial: Anderson v. Fitzgerald (1853) (o) A. G. v. Rmj (1874) L. R. 9 4 H. L. C. 484. Cp. Thomson v. Ch. 397, 407, 43 L. J. Ch. 321, per Weems (1884) (Sc. ) 9 App. Ca. 671. Mellish L.J. expressly comparing the (to) Macdonald v. Laiv Union In- case of a life policy where the rep- surance Co. (1874) L. R. 9 Q. B. 328, resentations of the assured are made 43 L. J. Q. B. 131. the basis of the contract. {n) London Assurance v. Hansel (p) Baicden v. London, Edinburgh (1879) 11 Ch. D. 3G3, 48 L. J. Ch. d Glasgoio Assce. Co. [1892] 2 Q. B. 331. Probably a material fact means 534, 01 L. J. Q. B. 792, C. A., a curi- for this purpose a fact such that its ous example of the insurers being concealment makes the statement bound by their agent's knowledge, actually furnished, though literally 16 When the statement is confined to the belief of the party, to avoid the policy it must appear that it was untrue in some respect material to the risk, and that he knew of its incorrectness. Insurance Co. ;'. France, 94 U. S. 561 ; Insurance Co. i\ Gridley, 100 U. S. 614: Clapp v. Mass. Benefit Assn., 146 Mass. 519; Louis r. Connecticut Ins. Co., 58 N. Y. App. Div. 137. IT Jeffries r. Insurance Co., 22 Wall. 47: Insurance Co. v. France, 91 U. S. 510; Rice v. Fidelity Co., 103 Fed. Rep. 427; Alabama Ins. Co. v. Garner, 77 Ala. 210; Supreme Lodge r. M'Laughlin, 108 111. App. 85; Cushraan r. In- surance Co., 63 N. Y. 404. And see Miller r. Insurance Co., 36 la. 216; Insurance Co. r. Wise, 34 Md. 582; Campbell r. Insurance Co., 98 Mass. 381; Rice r. Insurance Co., 17 Minn. 497. 18 Campbell i\ Insurance Co., 98 Mass. 381, 396; Cushman r. Insurance Co., 63 N. Y. 404, 409; Insurance Co. r. Pyle, 44 Ohio St. 19; Blooming Grove Ins. Co. r. McEnerney, 102 Pa. 335: Freedman r. Provident Ins. Co., 182 Pa. 64: Powers V. Insurance Co., 50 Vt. 630. 19 As to concealment, see Phenix Ins. Co. v. Raddin, 120 U. S. 183, 192 (disapproving London Assurance r. Mansel, 11 Ch. D. 363) ; Equitable Assur- ance Soc. r. McElroy, 83 Fed. Rep. 631: Cable r. United States Ins. Co., Ill Fed. Rep. 19; Mutual Ins. Co. r. Pearson, 114 Fed. Rep. 395; Insurance Co. V. Wise, 34 Md. 582 ; Mallory v. Insurance Co., 47 N. Y. 52. FIRE INSURANCE, 659 in being a contract of indemnity) (5),^° tliougli not to tlie same ex- tent. "^ The descriiDtion of tlie insured premises annexed to a fire policy amounts to a warranty (or rather a condition) tliat at the date of the policy the premises correspond to the description, or at least have not been altered so as to increase the risk ; and also that during the time specified in the policy the assured will not voluntarily make any alterp.tion in them such as to increase the risk. The description must be the basis of the contract, for the terms of insurance can be calculated only on the supposition *that the description in the [533 policy shall remain substantially true while the risk is running (r).^^ Where an insurance is expressed to be " on same rate terms and identi- cal interest " as other existing insurance on the same property, this is a condition of the contract (s). Description of goods in bill of lading, &c. The effect of a misdescription of the goods in a bill of lading, apart from any fraudulent intention, e.g. of avoiding payment of a higher rate of freight, is not precisely settled : but it seems that at most it would limit the carrier's liability to what the value of the goods would be if the description were cor- rect (^.23 B. Suretyship and Guaranty. Misrepresentation avoids contract. The contract of suretyship " is one in which there is no universal obligation to make disclosure" (u) ; ((/) Darrell v. Tibbifts (1880) 5 (s) And the use of the word " war- Q. B. Div. 560. 50 L. J. Q. B. 33. ranted" makes no difference: Bar- (r) f r. Welbes, 12 S. Dak. 339; Smith i: Doak, 3 Tex. 215; Xew Home Co. V. Simon, 104 Wis. 120. SALES OF land; COilPEXSATIOX. 663 withstanding special conditions of sale providing that errors of de- scription shall be matter for compensation only.^*^ Fliglit v. Booth {I) is a leading case on this subject. The contract was for the sale of leasehold property, and the lease imposed restrictions against carrying on several trades, of which the particulars of sale named only a few: it was held that the purchaser might rescind the contract and recover back his deposit. Tindal C.J. put the reason of the case on exactly the same grounds which, as we shall imme*diately see, have [537 been relied on in like cases by courts of equity. " Where the misdescription, although not proceeding from fraud, is in a material and substantial point, so far affecting the subject-matter of the contract that it may reasonably be supposed that but for such misdescrip- tion the purchaser might n'ever have entered into the contract at all, in such case the contract is avoided altogether, and the purchaser is not bound to resort to the clause of compensation. Under such a state of facts the purchaser may be considered as not having purchased the thing which was really the subject of the sale." The rule so stated has been unanimously approved in the Court of Appeal (m). So in Phillips v. Caldcleugh (n), v.'here the contract was for the sale of " a freehold residence " — which means free of all incum- brances (o)^^ — and it appeared that the property was subject to re- strictive covenants of some kind, the purchaser was held entitled to rescind, though the covenants were in a deed prior to that fixed by the contract as the commencement of the title. Specific performance and compensation. Questions of this kind arise chiefly in suits for specific performance between vendors and pur- chasers of real estate, when it is found that the actual tenure, quan- tity, or description of the property varies from that which was stated in the contract. The effect of the conditions of sale in the particular instance has almost always to be considered, and the result of the {I) (1834) 1 Bing. N. C. 370. 377, {n) (1868) L. R. 4 Q. B. 1.59, 161, 41 R. R. 599, 604. 38 L. J. Q. B. 68. (m) Re Fawcett and Holmefi (1S89) (o) Halsey v. Grant (1806) 13 42 Ch. Div. 150, 58 L. J. Ch. 763. Ves. 73, 77, 9 R. R. 143, 145. 30 Stevens r. Giddings, 45 Conn. 507 ; Keating i\ Price. 58 ]\Id. 532 ; Spurr V. Benedict, 99 Mass. 463; King v. Knapp, 59 N. Y. 462; Mulvey v. King, 39 Ohio St. 491. 31 " In a contract for the purchase of a fee simple estate, if no incumbrance be communicated to the purchaser, or be known to him to exist, he must suppose himself to purchase an unincumbered estate." Garnett v. Macon, 6 Call, 308. 368; ^Yashington v. Ogden, 1 Black, 450; Murphin v. Scovell. 41 Minn. 202; Christian r. Cabell. 22 Graft. 82; Spencer r. Sanduskv, 46 W. Va. 582. So also on a sale of stock. McClure v. Central Trust Co., 105 N. Y. 108. 6G4 MISREPRESEXTATION AND FRAUD. variance may be very different according to these, and according to the amount and importance of the discrepance between the description and the fact. A complete or nearly complete system of rules has been established by the decisions. (i.) Where variance not substantial contract enforceable, but with com- pensation, at suit of either party. '' If the failure is not substantial, equity will interfere " and enforce the contract at the instance of either party with proper compensation (o).^^ The purchaser, 538] "if *he gets substantially that for which he bargains, must take a compensation for a deficiency in the value"' (p).^^ Here the contract is valid and binding on both parties, and the case is analo- gous to a sale of specific goods with a collateral warranty. (ii.) Where variance substantial and capable of pecuniary estimation, party misled may rescind contract, or enforce it with compensation. There is a second class of cases in which the contract is voidable at the option of the purchaser, so that he cannot be forced to complete even with compensation at the suit of the vendor, but may elect either to be released from his bargain or to perform it with compensation. " Gen- erally speaking, every purchaser has a right to take what he can get, with compensation for what he cannot get" (q), even where he is not bound to accept what the other has to give him (r) .^* (o) Halsey v. Grant (1806) 13 the fee he cannot compel the pur- Ves. 73. 77, 9 R. R. 143, 145. chaser to take, but the purchaser can (j)) Dyer v. Hargrave (1805) 10 compel liim to convey the term." Per Ves. 506, 508, 8 R. R. 36, 37. Lord Eldon, Wood v. Griffith (1818) (q) Hughes v. Jones (1861) 3. D. 1 Swanst. at p. 54, 18 R. R. 27 F. & J. 307, 315, 31 L. J. Ch. 83; (though in this case not with com- Leyland v. Illingworth (1860) 2 D. pensation, .see next page): and see F. & J. 248, 252. MorfJock \. Buller (1804) 10 Ve.s. (r) "If a person possessed of a 292, 315, 7 R. R. 417. term for 100 years contracts to sell 32 But in Silliman r. Gillespie, 48 W. Va. 374, 377, where there was a mistake as to the boundaries of the land, the court said: " If the vendor does not want the sale rescinded, he can agree to take a less purchase price and thus make a binding contract, but the court cannot compel him to do so. Pratt v. Bowman, 37 W. Va. 715, 723." -> Hepburn v. Auld. 5 Cr. 262, 278; Robbins r. :\Iartin, 43 La. Ann. 488; Foley r. Crow, 37 Md. 51; King t\ Bardeau, 6 Johns. Ch. 38; Winne ?;. Reynolds, 6 Paige, 407, 412: Stoddart r. Smith. 5 Binney, 355, 362, 363; Croiofh's Admr. v. Boggs, 19 W. Va. 240, 2.">2. See further, Ames's Cas. Eq. Juris., Ch. 2. § V. 34 Bell r. Thompson, 34 Ala. 633; Marshall r. Caldwell, 41 Cal. 611; Lan- caster V. Roberts, 144 111. 213; .Jones r. Shackelford, 2 Bibb, 410; \Yilson v. Cox, 50 Miss. 133; Luckett r. Williamson. 31 Mo. 54: Kentor r. Brown. 57 N. J. Eq. 600: Voorhees r. De Myer, 3 Sandf. Ch. 614; Jacobs r. Locke, 2 Ired. Eq. 286: Erwin r. Mvers. 46 Pa. 96: Harhers r. Gadsden. 6 Rich. Eq. 284 : Heirs of Roberts v. Lovejov, 60 Tex. 253 ; Clarke r. Reins, 12 Graft. 98, 111. SALES OF land; COMPENSATION. 665 However a purchaser's conduct may amount to an affirmation of the contract and so deprive him of the right to rescind, but without affect- iLg the right to compensation (s) ; again, special conditions may ex- clude the right to insist on compensation and leave only the right to rescind (t). Under this head fall cases of misdescription affecting the value of the property, such as a statement of the existence of tenancies, not showing that they are under leases for *lives at a low rent (w) ; [539 or an unqualified statement of a recent occupation at a certain rent, the letting value of the property having been meanwhile ascertained to be less, and that occupation having been peculiar in its circum- stances (x) ; or the description of the vendor's interest in terms im- porting that it is free from incumbrances — such as " immediate abso- lute reversion in fee simple '' — where it is in fact subject to undis- closed incumbrances (y). The treatment of this class of cases in equity is analogous to the lules applied at common law to the sale of goods not specifically as- certained by sample or with a warranty : see p. *537, above. Exceptions. The doctrine that a vendor who has less than he under- took to sell is bound to give so much as he can give with an abatement of the price applies, it is to be understood, only where the vendor lias contracted to give the purchaser something which he professed to be, and the purchaser thought him to be, capable of giving. Where a husband and wife had agreed to sell the wife's estate (her interest being correctly described and known to the purchaser), and the wife (s) Hughes v. Jones, note (q) v. Revell [1900] 2 Ch. 858, 69 L. J. above. Ch. 879. (/) Cordingley v. Cheesehrough {u) Hughes v. Jones (1861) 3 U. (1862) 3 Giff. 496, 4 D. F. & J. 379, F. & J. 307, 31 L. J. Ch. 83. 31L. J. Ch. 617, where the purchaser (x) Dimmock v. Hallett (1866) 2 claiming specific performance with Ch. 21, 36 L. J. Ch. 146. compensation, and having rejected (y) Torrance v. Bolton (1872) 8 the vendor's offer to annul the con- Ch. 118, 42 L. J. Ch. 177. Of the tract and repay the purchaser his peculiar character of the non-dis- costs, was made to perform the con- closure in that case presently. Cp. tract unconditionally. See further as Phillips v. Caldcleiigh (1868) L. R. to the eflfect of conditions of this kind 4 Q. B. 159, p. 510, 38 L. J. Q. B. 68, Mawson v. Fletcher (1870) L. R. 6 above. As to the proper mode of Ch. 91, 40 L. J. Ch. 131 ; Re Terry & assessing compensation in a case of White's Contract (1886) 32 Ch. Div. mis-statement of profits, see Poivell v. 14, 55 L. J. Ch. 345. The authorities Elliot (1875) L. R. 10 Ch. 424. were reviewed by Buckley J., Jacobs 6GG MISREPRESEKTATIOX AND FRAUD. would not convey, the Court refused to compel the husband to convey his own interest alone for an abated price (z).^^ Specific performance with compensation is granted only where the compensation is capable of assessment: for example, not where the defect consists of undisclosed restrictive covenants (a). Also the Court will not order vendors who sell as trustees to perform their con- 540] tract with *compensation, on account of the prejudice to the cestui que trust which might ensue (h). Purchaser can recover compensation after completion. It is now settled (after many conflicting decisions and dicta) that a purchaser other- wise entitled to compensation can recover it after he has taken a con- veyance and paid the purchase-money in full (c). nii. ) Where variance not capable of estimation, option to rescind simply. But lastly the variance may be so material (either in quantity, or as y mounting to a variance in l-ind) as to avoid the sale altogether and to prevent not merely the general jurisdiction of the Court as to compensation, but even special provisions for that purpose, from hav- ing any application. ^"^ " If a man sells freehold land, and it turns (z) Castle V. Wilkinson (1870) 5 (a) Rudd v. Lascelles [1900] 1 Ch. Ch. 534, 39 L. J. Ch. 843; in Barker 81.5. 09 L. J. Ch. 396. V. Cox (1876) 4 Ch. D. 464, 46 L. J. (&) White v. Cuddon (1842) 8 CI. Ch. 62. the full purchase-money had & F. 706. been paid and the facts were other- (c) Palmer v. Johnson (1884) 13 wise peculiar. Q. B. Div. .351, 53 L. J. Q. B. 348. See the former cases there discussed. 35 Peeler i: Levy, 26 N. J. Eq. 330 ; Murdock r. Lantz, 34 Ohio St. 589, 598 : Clarke r. Reins, 12 Gratt. 98. Cp. Richards v. Doyle, 36 Ohio St. 37. If the wife of a vendor of land refuses to release her dower by joining in the execution of the deed, it is held in some States that tlie purchaser may obtain specific performance with an abatement from the purchase price. Win- gate V. Hamilton, 7 Ind. 73; Martin v. Merritt, 57 Ind. 41; Zebley v. Sears, 38 la. 507; Woodbury r. Luddy, 14 Allen, 1; Davis v. Parker, 14 Allen, 94; Wright V. Young, 6 'Wis. 127 ; Conrad v. Schwamb, 53 Wis. 378. Contra, Riesz's Appeal, 73 Pa. 485; Reilly r. Smith, 25 N. J. Eq. 158. And see Stern- berger r. McGovern, 56 N. Y. 12: Bostwick r. Beach, 103 N. Y'. 414; Lucas P. Scott, 41 Ohio St. 636. " If the refusal of the wife is made in bad faitli, or by the procurement of the husband, merely to enable him to escape his just obligation, the court may decree a conveyance by the husband alone, and compel him to give indemnity by mortgage or otherwise against the claim of the wife." Peeler r. Levy, 26 X.' J. Eq. 330, 335; Young v. Paul, 2 Stockt. Ch. 401. Where the wife refused to carry out a contract to convey a tract of land, part of which, being the homestead, could not be conveyed by the husband alone, the court refused to compel the purchaser to take the remainder with compensation. Donner r. Rcdenljaugh, 61 la. 269. sepiall r. Loomis, 63 Mich. 709. SALES OF land; WHERE NO COMPENSATION, 667 out to be copyhold, that is not a case for compensation (d) ; so if it turns out to be long leasehold, that is not a case for compensation; so if one sells property to another who is particularly anxious to have the right of sporting over it, and it turns out that he cannot have the right of sporting because it belongs to someljody else . . . in all those cases the Court simply says it will avoid the contract, and will not allow either party to enforce it unless the person who is prejudiced by the error be willing to perform the contract without compensation " (e).^'^ A failure of title as to. a part of the property sold which, though small in quantity, is important for the enjoyment of the whole, may have the *same effect (/)."* This class of [541 •cases agrees with the last in the contract being voidable at the option of the party misled, but it differs from it in this, that if he elects to adopt the contract at all he must adopt it unconditionally, since com- pulsory performance with compensation would here work the same injustice to the one party that compulsory performance without com- 2)ensation would work to the other. Such was the result in the case now cited of the real quantity of the property falling short by nearly €ne-half of what it had been supposed to be (^). But in a later id) Specific performance refused where the land was enfranchised coijyhold and the minerals were re- served to the lord: Bellamy v. De- ienham [1891] 1 Ch. 412, GO L. J. Ch. 160, C. A. And conversely, a man who buys an estate as copyhold is not bound to accept it if it is in fact freehold. For " the motives and fan- cies of mankind are infinite ; and it is unnecessary for a man who has contracted to purchase one thing to explain, why he refuses to accept an- other": Ayles V. Cox (1852) 10 Beav. 2.3. As to leaseholds, it is a settled thouo'h perhaps not a reason- able rule that a contract to sell prop- erty held under a lease is prima facie a. contract to show title to an origi- nal lease : Camherwell and *S'. London Jiuildinq fiocieti/ v. Holloicay (1879) 13 Ch. D. 754, 49 L. J. Ch. 301. (e) Earl of Durham v. Leqnrd (18G.T) 34 Beav. Oil, 34 L. J. Ch.'589. (f) Arnold v. Arnold (1880) 14 Ch. Div. 270. Where particulars of .sale were misleading as to bfiundaries and frontage, the purchaser was held entitled to rescind unconditionally: Brewer v. Broicn (1884) 28 Ch. D. 309, 54 L. J. Ch. 005. {(J) The price asked had been fixed by reference to the rental alone. Qu. how the case would have stood could a prica proportional to the area have been arrived at. And see ^ivaisland V. Dearslcy (1801) 27 Beav. 430 (where it is left doubtful whether the purchaser could or could not have enforced the contract Avith compensa- tion). Cp. D. 18. 1. de cont. empt. 22-24, enunciating precisely the same principle as that applied by our courts of equity. Hanc legem venditionis : Si quid sacri vel reli- ffiosi est, eius venit nihil, superva- cuam non esse, sed ad modica loca pertinere: ceterum si omne reli- giosTim, vel sacrum, vel publicum venierit, nullam esse emptionem: and see eod. tit. 18, 40 pr. In Whit- temore v. ^Yhittemore (1809) L. B. S Eq. 003, a case of material defi- ciency in quantity, it was held that a condition of sale providing gener- ally that errors of description should 37 See Durkin r. Cobleigh, 150 Mass. 108; Drew r. Wiswall, 183 IMass. 554, as to liability on collateral agreements to contracts for the sale of land. 38 Keating' r. Price, 58 Md! 532. 6G8 MISREPEESEXTATIOX AND FRAUD. cf»se where the vendors were found to be entitled only to an undivided nioietv of the property which they had professed to sell as an entirety^ the Court found no difficulty in ordering specific performance with an abatement of half the price at the suit of the purchaser, as no in- justice would be done to the vendors, who would be fully paid for all 542] they really had to sell (h).^^ The real question *is whether the deficiency is such as to be fairly capable of a money valuation (t). Where it is in vendor's power to make good his representations. It seems that where it is in the vendor's power to make good the description of the property, but not by way of money compensation, he can en- force the contract on condition of doing so, but not otherwise. A lot of building land (part of a larger estate intended to be sold to- gether) was sold under restrictive conditions as to building, and in particular that no public-house was to be built ; the purchaser assumed from the plan and particulars of sale, and in the opinion of the Court with good reason, that the whole of the adjoining property would be subject to like restrictions. One small adjacent plot had in fact been reserved by the vendor out of the estate to be sold, so that it would be free from restrictive covenants; but this did not sufficiently appear from the plan. The vendor sued for specific performance. It was held that he was entitled to a decree only on the terms of entering into a restrictive covenant including the reserved plot (Jc). This third class of cases may be compared (though not exactly) to a sale of goods subject to a condition or " warranty in the nature of a condition," so that the sale is " to be null if the affirmation is incorrect "' (/). be only matter of compensation did Bailey v. Piper was overlooked.- apply, but another excluding com- Maw v. Topham (1854) 19 Beav. pensation for errors in quantity did 576, is distinguishable, as there the not : so that on the whole the pur- purchaser knew or ought to have chaser could not rescind, but was en- kno^\^l that a good title could not be titled to compensation. made to the whole. (7!) Bailey v. Piper (1874) L. R. (?) See Dyer v. Hargrave (1805) 18 Eq. 683. 43 L. J. Ch. 704: Hor- 10 Ves. at p. 507. 8 R. R. at p. 38; rocA-.s v. Rigby (1878) 9 Ch. D. 180, and on the distinction of the different 47 L. J. Ch. 800. where the moiety classes of cases generally, per Am- was so incumbered that the vendor phlett B. PhiUips v. Miller (1875) in the result get nothing but an in- L. R. 10 C. P. 427-8, 44 L. J. C. P. demnitv: Wheatley v. filade (18.30) 2G5. 4 Sim."^ 126, .33 R. R. 100, is prac- (A) Baskco7nh v. Beckwith (1869) tically overruled by these cases. Sim- L. R. 8 Eq. 100. 38 L. J. Ch. 536. ilarlv as to leasehold: Burrow v. (?) Banncrman v. White (1861) Scammell (1881) 19 Ch. D. 175, 51 10 C. B. N. S. 844, 31 L. J. C. P. 28. L. J. Ch. 296, where apparently 39 Marshall r. Caldwell. 41 Cal. 611; Erwin v. Myers, 46 Pa. 96. But see Olson v. Lovell, 91 Cal. 506. SALES OF land; WHERE XO COMPEXSATION. 669 Deposit, &c., recoverable in equity as well as at law. A purchaser who in a case falling under either of the last two heads exercises his option to rescind the contract may sue in the Chancery Division to have it #«t aside, and recover back in the same action any deposit and expenses already paid under tlie contract (m). And it seems that there is an independent right to sue in equity for the return of the deposit and expenses, at all events if there are any accompanying cir- cumstances to afford ground for *equitable jurisdiction, such [543 as securities having been given of which the specific restitution is •claimed (n). General duty of vendor to give correct description. To return to the more general question, it is the duty of the vendor to give a fair and unambiguous description of his property and title. i\.nd, notwitli- standing the current maxim about simplex commendatio, language of general commendation — such as a statement that the person in possession is a most desirable tenant — is deemed to include the as- sertion that the vendor does not know of any fact inconsistent with il:. A contract obtained by describing a tenant as '"'most desirable" who had paid the last quarter's rent in instalments and under pressure has been set aside at the suit of the purchaser (o). If the vendor ■does not intend to offer for sale an unqualified estate, the qualifica- tions should appear on the face of the particulars (p). Concealment in particulars not excused by correct statement in conditions •only read out at the sale: Torrance v. Bolton. In Turrance V. Bolton {q) an estate was offered for sale as an immediate reversion in fee simple. At the auction conditions of sale were read aloud from a manuscript, but no copy given to the persons who attended the sale. One of these -conditions showed that the property was subject to three mortgages. The plaintiff in the suit had bid and l^ecome the purchaser at the sale, but without having, as he alleged, distinctly heard the condi- tions or understood their effect. The Court hold that the particulars were misleading; that the mere reading out of tlie conditions of sale (m) E.g. Stanton v. Tattersall Property Corporation (1884) 28 Ch. (1853) 1 Sm. & G. 529: Torrance v. Div. 7, 51 L. T. 718. Bolton (1872) L. R. 8 Ch. 118, 42 (;)) Huqhcs V. Jones (18G1) 3 D. L. J. Ch. 177. F. & J. 307, 314, 31 L. J. Ch. 83. As (n) Aheraman Ironworks Co. v. to the duty of disclosing restrictive Wickens (1868) L. R. 4 Ch. 101, coxensinU:^ Ehsiforth and Tidy's Con- where the contract having been re- tract (1889) 42 Ch. Div. 23, 47, 51, scinded by consent before the suit 58 L. J. Ch. 065. was held not to deprive the Court of (q) (1872) L. R. 8 Ch. 118, 42 L. jurisdiction. -T. Ch, 177. (o) Smith V. Land and House 6 TO MISREPRESEXTATIOX AND FRAUD. was not enough to romove their effect and to make it clear to the mind of the purchaser what he was really buying; and that he was entitled to have the contract rescinded and his deposit returned. Mere silence as to facts capable of influencing a buyer's judgment, but not 544] *such as the seller professes or undertakes to communicate, is not of itself any breach of duty (r). A misleading description may be treated as a misrepresentation even if it is in terms accurate: for example, where property was described as " in the occupation of A." at a certain rental, and in truth A. held not under the vendor, but under another person's adverse possession (s), or where immediate possession is material to the pur- chaser, and the tenant holds under an unexpired lease for years which is not disclosed (t). A misleading statement or omission made by mere heedlessness or accident may deprive a vendor of his right to specific performance, even if such that a more careful buyer might not have been misled (u). Duty of purchaser in special cases. All this proceeds on the supposi- tion that the vendor's property and title are best known to himself, as almost always is the case. But the position of the parties may be reversed : a person who has become the owner of a property he knows very little about may sell it to a person well acquainted v;ith it, and in that case a material misrepresentation by the purchaser makes the contract, and even an executed conveyance pursuant to it, ^'oid- able at the vendor's option (x). So it is where the purchaser lias done acts unknown to the vendor which alter their position and rights- with reference to the property : as where there is a coal mine under the land and the purchaser has trespassed upon it and raised coal without the vendor's knowledge; for here the proposed purchase in- volves a buying up of rights against the purchaser of which the owner is not aware (y). 545] On a sale under the direction of the Court a person *offering to buy is not under any extraordinary duty of disclosure. It is not the law " that, because information on some material point or points is offered, or is given on request, by a purchaser from the Court, it must therefore be given on all others as to which it is neither offered nor (r) Coals V. Bosivell (1886) 11 {x) Flaygarth v. Wearing (1871) App. Ca. 232-235. L. R. 12 Eq. 320; 40 L. J. Ch. 577. (s) Lachlan v. Reynolds (1853) Cp. the Indian Transfer of Property Kay 52, 23 L. J. Ch. 8. Act. 1882, s. 55. (t) Cabollero V. Henty (1874) L. (y) PliilHps v. Bomfrmj (1871) R. 9 Ch. 447, 43 L. J. Ch. 035. L. R. 6 Ch. 770, 779. (m) Jones V. Rimmer (1880) 14 Ch. Div. 588, 49 L. J. Ch. 775. SALES OF land; DUTIES OF FAETIES. 671 requested, and concerning which there is no implied representation, positive or negative, direct or indirect, in what is actually stated "' (,r). Effect of special conditions as to title. Vendors of land may, anrl con- stantly do in practice, sell under conditions requiring the purchaser to assume particular states of fact and title. But such condilions must not be misleading as to any matter within the vendor's knowl- edge (a). "The vendor is not at liberty to require the purchaser to assume as the root of his title that which documents within his possession show not to be the fact, even though those documents may show a perfectly good title on another ground: '' and if this is done even by a perfectly innocent oversight on the part of the vendor or his advisers, specific performance will not be enforced (h). A special condition limiting the time for which title is to be shown must be fair and explicit, and " give a perfectly fair description of the nature of that which is to form the root of title *' (c). Non-disclosure of defect of title not actually known to vendor: Wilde v. Gibson. The House of Lords decided in ^yilde v. Gibson (d) that the vendor's silence as to a right of way over the property, of the existence of which he was not known to be *aware, was no ground for set- [546 ting aside the contract. This reversed the decision of Knight Bruce Y.-C. (e), who held that the silence of the particulars taken together with the condition of the property (for the way had been enclosed) amounted to an assertion that no right of way existed. In any view it seems an extraordinary, not to say dangerous, doctrine to say that a vendor is not bound to know his own title, so far at least as with ordinary diligence he may know it : and the case is severely criticized by Lord St. Leonards (f). The Irish case relied on by the Lords as a direct authority may be distinguished on the ground {z) Coaks V. Boswrll (1886) 11 Q. B. 280, where the vendor's solici- App. Ca. 232, 440. 55 L. J. Ch. 761, tor erroneously denied the existence revg. s. c. 27 Ch. Div. 424, mainly on of restrictive covenants contained in the facts. deeds prior to those which he had (a) Heywood v. Mallalieu (1883) read. Cf. L. Q. R. ii. 414, 415. 25 Ch. D. 357, 53 L. J. Ch. 492 (defi- (c) Marsh and Earl Granville nite adverse claims known to a ven- (1883) 24 Ch. Div. 11, 22, 53 L. J. dor must be disclosed even if he Ch. 81, where the purchaser was thinks them unfounaed). held not bound to accept as the com- (b) Broad v. Munton (1879) 12 mencement of title a voluntary deed Ch. Div. 131, per Cotton L.J. at p. not stated in the contract to be such. 149. 48 L. J. Ch. 837: whether this (d) (1848) 1 H. L. C. 605. would be sufficient ground for re- (e) S. C. nom. Cribson v. D'Este scinding the contract, qucere, per (1843) 2 Y. & C. 542. Jessel M.R. 12 Ch. Div. at p. 142: [f) Sugd. Law of Property, 614, Nottingham Brick Co. v. Butler 637, &c. (1886) 16 Q. B. Div. 778, 55 L. J. 672 MISREPRESENTATIOX AND FRAUD. that the representation there made by the lessor that there was no right of way was made not merely with an honest belief, but with a reasonable belief in its truth (g). The decision in Wilde v. Gibson was much influenced by the pur- chaser's case having been rested in the pleadings to a certain extent upon charges of actual fraud, which however were abandoned in argument: the doctrine of constructive notice, it was said, could not be applied in support of an imputation of direct personal fraud. Even so the result in modern practice would only be that the plaintiff would have to pay the costs occasioned by the unfounded charges; he would not lose any relief for which he otherwise showed sufficient grounds (h). And on examining the pleadings it is difficult to find any imputation sufficient to justify the grave rebukes expressed in the judgments {(). It was also said by Lord Campbell that a court of equity will not set aside an executed conveyance on the ground 547] of misrepresentation or concealment, but *only for actual fraud {I') : but this dictum has not been followed.'*'^ Wliere copyhold land has been sold as freehold, apparently in good faith, the sale was set aside after conveyance (/). Here, however, the seller had notice when he bought the land himself that some part of it at least was copyhold. On the other hand there may be a want of diligence on the purchasers part which, although not such as to deprive him of the right of rescinding the contract before completion, would pre- clude him from having the sale set aside after conveyance (ni). General rule. As a general result of the authorities there seems to be no doubt that on sales of real property it is the duty of the party ig) Indeed the Court seems to sion was doubted by Cotton L.J. in have thought it teas true, notwith- Boper v. Arnold (1887) 37 Ch. Div. standing tlie adverse result of an in- 96, at p. 102, 57 L. J. Ch. 145 ; also dictnient for stopping the alleged in Haygarth v. Wearing (1871) L. public way: Legge v. Croker (1811) R. 12 Eq. 320, 40 L. J. Ch. 577. an 1 Ball & B. 506, 12 R. R. 49, Sugd. executed conveyance was set aside on op. cit. 657. simple misrepresentation. In Soper (h) HiUiardY. Eiffe (1874) L. R. v. Arnold, affirmed in H. L. (1889) 7 H. I. 39; see next chapter. 14 App. Ca. 429, 59 L. J. Ch. 214, the (i) The bill in (libson v. D'Estr, point in issue was different, and the which IS to be found in the printed defect in title v.as disclosed on the cases of 1848, has the words "care- face of the abstract, fully concealed"' in one passage: (m) M'CuUoch v. Gregory (1855) " fraudulently concealed " in another 1 K. & J. 286, 24 L. J. Ch. 246, where may mean, of course, fraudulently in a will was mis-stated in the abstract a technical sense. so as to conceal a defect of title, but (k) 1 H. L. C. 632. the purchaser omitted to examine the [l] Hart V. Simine (1877) 7 Ch. originals. D. 42, 47 L. J. Ch. 5, but the deci- 40Lindsey r. Veasy, 02 Ala. 421; Spurr r. Benedict, 99 Mass. 463. See also Keene v. Demelman,' 172 Mass. 17. SALES OF LAND : DUTIES OF PARTIES. 673 acquainted with the property to give substantially correct informa- tion, at all events to the extent of his own actual knowledge (n), of all facts material to the description or title of the estate offered for sale, but not of extraneous facts affecting its value : the seller, for example, is not bound to tell the buyer what price he himself gave for the property (o). Exception as to occupation leases. The general rule seems not appli- cable as between lessor and lessee, where the letting is for an occupa- tion by the lessee himself, and so far as concerns any physical fact which can be discovered by inspection; for in ordinary circumstances the landlord is entitled to assume that the *tenant will go and [548 look at the premises for himself, and therefore is not bound to tell liim if they are in bad repair or even ruinous (p).'^^ D. Family Settlements. Duty of full disclosure. In the negotiations for family settlements and compromises it is the duty of the parties and their professional agents not only to abstain from misrepresentations, but to communi- (n) See JoJiffe v. Baker (1883) 11 incumbrances: Re Ford and Hill Q. B. Div. 255, 52 L. J. Q. B. 609, (1879) 10 Ch. Div. 365. but that case is of little authority, if (o) 3 App. Ca. 1267. anv. on the question of contract: see (p) KeatesY. Earl Cadogan (1851) per A. L. Smith J. in Palmer v. 10 C. B. 591, 20 L. J. C. P. 76. The Johnson (1884) 12 Q. B. D. at p. 37, general rule does apply as to mat- explaining his own part in Joliffe v. ters of title: Mosfynv.West Mosfi/n Baker. Neither vendors nor their Coal, dc. Co. (1876) 1 C. P. D. 145, solicitors are bound to answer a 45 L. J. C. P. 401. general inquiry as to non-apparent 41 See Doyle r. Union Pacific Co.. 147 U. S. 413; Gallagher r. Button, 73 Conn. 172; Foster v. Peyser, 9 Cush. 242; Krueger r. Ferrant, 29 Minn. 385, 388; Naumberg r. Young, 44 N. J. L. 331, 344; Clyne r. Helmes, 61 N. J. L. 358; Cleves v. Willoughby, 7 Hill, 83. For many other decisions showing tliat the rule of caveat emptor applies between landlord and tenant, see IS Am. & Eng. Encvc. (2d. ed. ) 613. Cp. Willcox V. Hines, 96 Tenn. 148, 328, 100 Tenn. 538. "if, however, there is a secret dangerous defect, as infection, of which the landlord knows and the tenant does not, the landlord is liable, if he fails to disclose the defect, for injury resulting to the tenant. Moore r. Parker, 63 Kan. 52; Minor ii. Sharon, 112 Mass. 477; O'Malley r. Twenty-five Associates, 178 Mass. 555, 558; Kern r. Mvll, 80 Mich. 525 '(see S. C", 94 Mich. 477); Towne V. Thompson, 68 X. H. .317, 320: Cate r. Blodgett. 70 N. II. 316, 317; Cesar r. Kountz. 60 N. Y. 229. In England and Massachusetts, on a lease of a furnished house for a short term, there is an implied warrantv that the premises are tenantable. Smith V. Marrable. 11 M. & W. 5; Wilson v. Finch-Hatton. 2 Ex. D. 336; Ingalls r. Hobbs, 156 Mass. 348. But other States seem indisposed to accept this doctrine. Fisher r. Lighthall, 4 Maekev, 82 : Davis v. George, 67 N. H. 393; Murrav r.' Albertson, 50 N. J. L. 167; Franklin v. Brown, 118 X. Y'. 110; Edwards r. McLean, 122 N. Y. 302. 43 674 MISREPRESEXTATIOX AXD FRAUD. cate to the other parties all material facts within their knowledge affecting the rights to be dealt with. The omission to make such communication, even without any wrong motive, is a ground for set- ting aside the transaction. " Full and complete communication of all Tiiaterial circimistances is what the Court must insist on" (q). " With- out full disclosure honest intention is not sufficient," and it makes no difference if the non-disclosure is due to an honest but mistaken opinion as to the materiality or accuracy of the information with- held (r). The operation of this rule is not affected by the leaning of equity, as it is called, towards supporting re-settlements and similar arrangements for the sake of peace and quietness in families (s). E. Partnership, Contracts to take Shores in Companies, and Contracts of Promoters. Contracts to take shares. The contract of partnership is always de- scribed as one in which the utmost good faith is required. So far as 549] this principle applies to the relations of partners after the *part- nership is formed, it belongs to the law of partnership as a special and distinct subject; and in fact the principle is worked out in definite lules to such an extent that it is seldom appealed to in its general form. But it also applies to the transactions preceding the formation of a partnership, or rather its full and apparent constitution. For example, an intending partner must not make a private profit out of a dealing undertaken by him on behalf of the future firm (t)^^ There is little or no direct authority to show that a person inviting another to enter into partnership with him is bound not only to abstain from mis-statement, but to disclose everything within his knowledge that is material to the prospects of the undertaking. But the ex- istence of such a duty (the precise extent of which must be determined in each case by the relative position and means of knowledge of the parties) is postulated by the stringent rules which have been laid (q) Gordon v. Gordon (181G-9) 3 f.s) lb.; Fane v. Fane (1875) L. Sw. 400, 473, 19 R. R. 241. 242. R. 20 Eq. 698. (r) lb. 477, 19 R. R. 244. How (f) Lindley on Partnership, 32.5; far does this go? It can hardly be Fau-cett v. Whitehonse (1829) 1 a duty to communicate mere gossip Russ. & M. 132, 32 R. R. 1G3. Yet on the chance of there being some- the duty is incident, not precedent, thing in it. Probably the test is (as to the contract of partnership: for if in the case of marine insurance, p. there were not a complete contract *.530, above) whether the judgment of of partnership there would be no a rea-sonable man would be affected. dutv at all. [See Uhler v. Semple, Cp. Heywood v. MaUaUeu (1883) 25 20 N. J. Eq. 288. 292.] Ch. D. 357, 53 L. J. Ch. 492. 42 Densmore Oil Co. r. DensmorCj 64 Pa. 43, 50. PARTNERSHIPS AND COMPANIES. 675 down as binding on the promoters of companies. These are ex- pressed with the more strictness, inasmuch as the public to whom promoters address themselves are for the most part not versed in the particular kind of business proposed, but are simply persons in search of an investment for their mone}^ and with slight means at hand, if any, of verifying the statements made to them. Prospectus must be both positively and negatively correct. " The pub- lic,'' it is said, "■ who are invited by a prospectus to join in any new adventure, ought to have the same opportunity of judging of every- thing which has a material bearing on its true character as the pro- moters themselves possess" (w) : and those who issue a prospectus inviting people to take shares on the faith of the representations therein contained are bound " not only to abstain from stating as fact that which is not so, but to omit no one *fact within their [550 knowledge the existence of which might in any degree affect the nature or extent or quality of the privileges and advantages which the prospectus holds out as an inducement to take shares " (x). There- fore if untrue or misleading representations are made as to the character and value of the property to be acquired by a company for the purposes of its operations (?/), the privileges and position se- cured to it, the amount of capital (z), or the amount of shares al- ready subscribed for (a), a person who has agreed to take shares on the faith of such representations, and afterwards discovers the truth, is entitled to rescind the contract and repudiate the shares, if he does so within a reasonable time and before a winding-up has given the company's creditors an indefeasible right to look to him as a contribu- tory.** For full information on this subject the reader is referred to Lord Lindley's treatise (b). (u) Lord Chelmsford in Central L. J. Ch. 849, aflFg. s. c. nom. Smith's Ry. Co. of Venezuela v. Kisch ( 1867 ) case ( 1807 ) L. R. 2 Ch. 604. L. R. 2 H. L. 99, 113, 36 L. J. Ch. (z) Central Ry. Co. of Yenezuelav. 849. Kisch, supra. {x) Kindersley V.-C. New Bruns- {a) Wright's case (1871) L. R. 7 wicl; dc. Co. V. Muqgeridge (1860) Ch. 55, 41*1^. J. Ch. 1; Moore & De 1 Dr. & Sni. 363, 381, 30 L. J. Ch. la Torre's case (1874) L. R. 18 Eq. 242, adopted by Lord Chelmsford. I. c. 661, 43 L. J. Ch. 751. (.V) Reese River Silver Mining Co. (6) Lindley on Companies. 72, V. S7nith (1869) L. R. 4 H. L. 64, 39 589 sqq. Mere communication to the 43 See Upton r. Tribilcock, 91 U. S. 45 ; Scott v. Deweese, 181 U. S. 202 ; Upton V. Englehart, 3 Dill. 496; Insurance Co. v. Turner, 61 Ga. 561; Negley f. Hagerstown Co., 86 Md. 692; Sherman v. American Stove Co., 85 Mich. 169; Water Valley Mfg. Co. v. Seaman, 53 Miss. 655 ; Ramsey r. Thompson Mfg. Co., 116 Mo. 313; Vreeland r. New Jersey Stone Co., 29 N. J. Eq. 188; Boslev r. National Machine Co.. 123 N. Y. 5.50; State r. Jefferson Turnp. Co., 3 Humph. 305 ; Crump r. U. S. Mining Co., 7 Graft. 352 ; Virginia Land Co. r. Haupt, 90 Va. 533; Waldo v. Railroad Co., 14 W^s. 575. G'iG MISREPRESEXTATIOX AXD FRAUD. Duty of promoter to company. There is likewise a fiduciar}^ relation between a promoter and the company in its corporate capacity, which imposes on the promoter the duty of full and fair disclosure in any transaction with the company, or even with persons provisionally representing the inchoate company before it is actually formed ( c ) .■** Promoters who form a company for the purpose of buying their 551 ] property are not entitled to *deal with that company as a stranger (d). They must either provide it with " a board of directors who can and do exercise an independent and intelligent judgment on the transaction" (e) or give full notice that the directors are not independent; there may be cases in v/hich all the original mem- bers of the company necessarily have such notice (/). "The old familiar principles of the law of agency and of trusteeship have been extended and very properly extended to meet such cases" (g). A shareholder may be entitled to rescind his contract w4th the company on the ground of a material misrepresentation in a preliminary pros- pectus issued by promoters before the company was formed (/;). Companies Act, 1900, s. 10. The Companies Act, 1900, repealing and superseding the less stringent provisions of the Companies Act. 1867, enacts that every company prospectus '" must state " a number of specified particulars. The consequences of disobedience are not ex- pressed, unless in the case of wilful falsehood (i), but it would seem company is not a sufficient repudia- Lagunas Islitrate Co. v. Lagunas tioii. The shareholder must do some- >Sj/nd. [1899] 2 Ch. 392, 68 L. J. Ch. thing to alter his status as a mem- C99, C. A. ber: per Lindley L.J. Re Scottish (d) Erlanger v. Kew Sombrero Petroleum Co. (1883) 23 Ch. Div. Phosphate Co. (1878) 3 App. Ca. at 435. The critical date is that of the p. 12G8. petition, not the order, in the wind- (e) Ih. at pp. 1229, 1236, 1255. ing-up: Whiteley's case [1899] 1 Ch. (/) Lagunas Nitrate Co. V. La- 770, 68 L. J. Ch. 365. gunas Synd. [1899] 2 Ch. 392, 68 (c) New Sombrero Phosphate Co. L. J. Ch. 699, C. A. V. Erlanger (1877) 5 Ch. Div. 73. ig) Sydney, d-c. Co. x. Bird {18S6) l^er James L.J. at p. 118, 46 L. J. Ch. 33 Ch. Div. 85, 94. 425; affd. in H. L. nom. Erlanger v. (h) Re Metropolitan Coal Con- New Sombrero Phosphate Co. (1878) sumers' Assn., Karberq's case [1892] 3 App. Ca. 1218, 48 L. J. Ch. 73; 3 Ch. 1, 61 L. J. Ch. 741, C. A. Bagnall V. Carlton (1877) 6 Ch. Div. {i) By sect. 28 (if it applies to 371, 47 L. J. Ch. 30; and see the false statements in a prospectus, v/hole subject (the details of which which is not quite clear) this is a belong to company law) discussed in misdemeanor. 44 Wiser r. Lawler, 189 U. S. 260; Burbank v. Dennis, 101 Cal. 90; Yale Stove Co. r. Wilcox, 64 Conn. 101; Hay^vard r. Leeson, 176 Mass. 310; Exter V. Sawver, 146 Mo. 302; Brewster t. 'Hatch, 122 N. Y. 349; McElhennv r. Hubert Oil Co., 61 Pa. 188; Simons r. Vulcan Oil Co., 61 Pa. 202; Densmore Oil Co. r. Densmore, 64 Pa. 43; Pittsburg ^Mining Co. r. Spooner, 74 Wis. 307; Pietsch V. Krause, 116 Wis. 344; 36 Am. L. Reg. (N. S.) 545. CONTRACTS TO MARRY. 677 that any misstatement or omission, with knowledge of the facts (k), of any of these particulars will be treated as fraudulent, and that all and every of them are conclusively declared to be material. Any lia- bility under the general law is expressly saved (l), so that the es- tablished case-law remains fully applicable. It would be useless to enter upon further details here; nor are we concerned with the question whether a right of action in tort is given by implication to persons who may suffer damage from the directions of the Act not being regarded. *The Directors' Liability Act, 1890 (m), imposes a special re- [552 sponsibility on directors and promoters for the accuracy, to the extent of tlieir means of knowledge, of statements made in prospectuses. This however is rather ex delicto than ex contractu. Contract to marry. Thus much of the classes of contracts to which special duties of this kind are incident. The absence of any such duty in other cases is strongly exemplified by the contract to marry. Here there is no obligation of disclosure, except so far as the woman's chastity is an implied condition.'*^ The non-disclosure of a previous and subsisting engagement to another person («), or of the party's own previous insanity (o),'*'^ is no answer to an action on the promise. ]f promises to marry are to give a right of action, one would think the contract should be treated as one requiring the utmost good faith : but such are the decisions. Marriage itself is not avoided even by actual fraud (p), but the (7c) See the exception in sect. 10, (o) Balccr v. Carfwright (1861) Sdb-sect. 7. 10 C. B. N. S. 124. 30 L. J. C. P. 364. (I) Sub-sect. 8. (p) Moss v. Moss [1897] P. 263, (m) 53 & 54 Vict. c. C4. The Act 269, 66 L. J. P. 154. Fraud is nia- provides a partial and clumsy rem- terial only when it is such as " pro- edy for the mischievous consequences cures the appearance without the of Derry v. Peek (1889) 14 App. Ca. reality of consent," per Sir F. H. 337, 58 L. J. Ch. 864. See the Act Jeune. Some of the language used and comments thereon in the Sup- in »S'cof^ v. Sebright (1886) 12 P. D. plement to Lindley on Companies, 21, 23, a decision on very peculiar 1891. facts held to come within this last- (n) Beachejf v. Brown (1860) E. mentioned category, cannot be sup- B. & E. 796, 29 L. J. Q. B. 105. ported. 45 "A man is not bound by a contract to marry a lewd woman if he has entered into it in ignorance of her character." Von Storch v. Griffin, 77 Pa. 504: Butler v. Eschleman, 18 111. 44: Bell v. Eaton, 28 Ind. 468; Guptill r. Verback, 58 la. 98; Berry v. Bakeman, 44 Me. 164; Sheahan v. Barry, 27 Mich. 217, 222; Palmer v. Andrews, 7 Wend. 142; Foster v. Hanchett, 68 Vt. 319. •16 Xor that because of frequent intermarriages of related ancestors, the plaintiff's family had a hereditary taint. Simmons r. Simmons, 8 Mich. 318. Nor that the plaintiff had negro blood in her veins. Van Houten r. Morse, 162 Ma.ss. 414. But see the remarks in that case in regard to the possible fraudulent effect of partial disclosure. 678 MISREPRESEXTATIOX AKD FRAUD. reasons for this are obviously of a different kind: nor is a marriage settlement rendered voidable by the wife's non-disclosure of previous misconduct (q). Voluntary gifts. As to voluntary gifts the rule is that a gift obtained by a misrepresentation of fact made however innocently, by the donee, may be recovered back by the donor on the discovery of the mistake.^ Such gifts must be regarded as conditional on the truth of the rep- resentation (r). 553] *Part III. — Fraud or Deceit. Fraud generally includes misrepresentation. Fraud generally includes misrepresentation. Its specific mark is the presence of a dishonest intention on the part of him by whom the representation is made,'*^ or of recklessness equivalent to dishonesty. In this case we have a mistake of one party caused by a representation of the other, which representation is made by deliberate words or conduct with the inten- tion of thereby procuring consent to the contract, and without a belief in its truth. But not always: as when a contract is made with a collateral wrongful or unlawful purpo£2, or without intention of performing it. There are some instances of fraud, however, in which one can hardly say there is a misrepresentation except by a forced use of language. It is fraudulent to enter into a contract with the design of using it as an instrument of wrong or deceit against the other party. Thus a separation deed is fraudulent if the wife's real object in consenting or procuring the husband's consent to it is to be the better able to renew a former illicit intercourse which has been concealed from him. " Xone shall be permitted to take advantage of a deed which they have fraudulently induced another to execute that they may commit an injury against morality to the injury and loss of the party by whom the deed is executed^' (s). So it is fraud to obtain a contract for the transfer of property or possession by a representation that the property will be used for some lawful purpose, when the real intention is to use it for (q) Evans v. Carrington (1800)' 2 (,s) Evans v. Carrington (1860) t D. F. & J. 481, 30 L. J. Ch. 364. It D. F. & J. 481, 501, 30 L. J. Ch. 364; is there said hoAvever that non-dis- cp. Evans v. Edmonds (1853) 13 C. closure of adultery would be enough B. 777, 22 L. J. C. P. 211, where, to avoid a separation deed. however, express representation wad (r) Be Gluhh, Bamfield v. Rogers averred. [IfiOO] 1 Ch. 354, 69 L. J. Ch. 278, C. A. 47 ppp School Directors v. Boonihour, 83 111. 17; Kennedy v. McKay, 43 N. J. L. 288. FRAUD OR DECEIT. 679 an unlawful purpose (t). It has been said that it is not fraud to make a contract without an}^ intention of performing it, because per- adventure the party may think better of it and perform it after all : but this was in a case where the question arose wholly on the form of the pleadings, and in a highly *technical and now happily [554 impossible manner (u). And both before and since it has repeatedly been considered a fraud in law to buy goods with the intention of not paying for them (x)^^ Here it is obvious that the party would not enter into the contract if he knew of the fraudulent intention : but it) Feret V. Hill (1854) 15 C. B. White v. Garden (1851) 10 C. B. 207, 23 L. J. C. P. 185, concedes this, 019. 923, 20 L. J. C. P. 166; Clough deciding only that possession actn- V. L. d N. W. Ry. Co. (1871) L. R. ally given under the contract cannot 7 Ex. 26, 41 L. J. Ex. 17 ; Ex parte be treated as a mere trespass by the Whittaker (1875) L. R. 10 Ch. 446, party defrauded. 449. per Mellish L.J. 44 L. J. Bk. 91; (u) Eemingicuy V. Hamilton Donaldson v. Fancell (1876) 93 U. (1838) 4 M. & W. 115, 51 R. R. 497. S. 631. But it is not such a "false It is by no means clear that the representation or other fraud " as to Court reallj'^ meant to go so far : see constitute a misdemeanor under s. Pref. to 51 R. R. 11, sub-s. 19 of the Debtors Act, {x) Ferguson V. Carrington (1829) 1869: Ex parte Brett (1875) 1 Ch. 9 B. & C. 59: Load v. Green (1846) Div. 151, 45 L. J. Bk. 17. 15 M. & W. 216, 15 L. J. Ex. 113; 48 Le Grand v. Eufaula Bank, 81 Ala. 123; WoUmer r. Lehman, 85 Ala. 274; McKenzie r. Rothschild, 119 A\a. 419; Taylor r. Miss. Mills, 47 Ark. 247 ; Bugg V. Shoe Co., 64 Ark. 12; W. W. Johnson Co. v. Triplett, 66 Ark. 233; Thompson v. Rose, 16 Conn. 71; Farwell v. Hanchett, 120 111. 573; John V. Farwell Co. r. Nathanson, 99 111. App. 185 ; Brower v. Goodyer, 88 Ind. 572 ; Oswego Starch Factory v. Lendrum, 57 la. 573; Lindauer t\ Hay, 61 la. 663; Reager v. Kendall, 19 Ky. L. Rep. 27; Dow r. Sanborn, 3 Allen, 181; Jordan r. Osgood, 109 Mass. 457; Shipman v. Seymour, 40 Mich. 274, 283; Koch v. Lyon, 82 Mich. 513; Slagle v. Goodnow, 45 Minn. 531; Fox v. Webster, 46 Mo. 181 ; Stewart v. Emerson, 52 N. H. 301 ; Johnson r. Monnell, 2 Keyes, C55; Hennequin v. Naylor, 24 N. Y. 139; Devoe r. Brandt, 53 N. Y. 462; Wright r. Brown, 67 N. Y. 1 ; Wliitten v. Fitzwater, 129 N. Y. 626; Des Farges r. Pugh, 93 N. C. 31: Talcott r. Henderson, 31 Ohio St. 162; Wilmot i\ Lyon, 49 Ohio St. 296; Mulliken V. Millar, 12 R. I. 296; Dalton r. Thurston". 15 R. I. 418; Belding v. Frankland, 8 Lea, 67; Lee r. Simmons, 65 Wis. 523. But in Pennsylvania, unless the buyer is guilty of some misstatement or trick or artifice, the sale is not fraudulent. Re Lewis, 125 Fed. Rep. 143; Smith V. Smith, 21 Pa. 367; Bughman v. Bank, 159 Pa. 94. The mere non- disclosure, by a purchaser, of his insolvency does not alone amount to fraud. Biggs V. Barrv, 2 Curtis, 259 ; Morrill v. Blackman, 42 Conn. 324 ; Kclsey v. Harrison, 29 Kan. 143; Houghtaling r. Hills. 59 La. 287: Powell v. Bradlee, 9 G. & J. 220, 275, 276: Diggs r. Denny. 86 Md. 116: Illinois Leather Co. r. Flvnn, 108 Mich. 91; Bidault r. Wales, 19 Mo. 36; Nichols V. Pinner, 18 N. Y. 295: Hennequin t\ Naylor. 24 N. Y. 139; Morris V. Talcott. 96 N. Y. 100, 107, 108; Talcott r. Henderson, 31 Ohio St. 162; Rodman V. Thalheimer, 75 Pa. 232; Garbutt r. Bank. 22 Wis. 384: Consolidated Milling Co. r. Fogo, 104 Wis. 92. But the fact that the buyer had no reasonable expectatiou of paying may justify the inference of an intention not to pay. Wilk r. Key, 117 Ala. 285: Deere" r. ]\Iorgan. 114 la. 287: Watson r. Silsby, 166 Mass. 57. Cp. Burchinell r. Hirsch, 5 Col. App. 500; Knitting Co. r. Blanchard, 69 N. H. 447; Smith V. Bank, 164 N. Y. 386. 680 MISREPRESENTATION AND FRAUD. the fraud is not so much in the conceahnent as in the character of tlie intention itself. It Avonkl be ridiculous to speak of a duty of dis- closure in such cases. Still there is ignorance on the one hand and wrongful contrivance on the other, such as to bring these cases within the more general description of fraud given in Ch. IX. p. *439, above. Right of rescinding fraudulent contract. The party defrauded is en- titled, and in modern times has always been entitled at law as well as in equity, to rescind the contract. " Fraud in all courts and at all stages of the transaction has been held to vitiate all to which it attaches " (y)^^ Elements of fraud. We shall now consider the elements of fraud separately: and first the false representation in itself. It does not matter whether the representation is made by express words or by conduct, nor whether it consists in the positive assertion or suggestion of that which is false, or in the active concealment of something ma- terial to be known to the other party for the purpose of deciding whether he shall enter into the contract. These elementary rules are so completely established and so completely assumed to be established in all decisions and discussions on the subject that it will suffice to give a few instances. 555] "Examples of fraudulent representation. There may be a false statement of specific facts: this seldom occurs in a perfectly simple form. Canham v. Barry (z) is a good example. There the contract was for the sale of a leasehold. The vendor was under covenant with his lessor not to assign without licence, and had ascertained that licence v/ould not be refused if he could find an eligible tenant. The agree- ment v/as made for the purpose of one M. becoming the occupier, and the purchaser and M. represented to the vendor that M. was a respectable person and could give satisfactory references to the land- lords, which was contrary to the fact. This was held to be a fraudu- lent misrepresentation of a material fact such as to avoid the contract. A more frequent case is where a person is induced to acquire or become a ]jnrtner in a business by false accounts of its position and profits (a). (ij) Per Wilde B. Udell v. Ather- (a) E.g. Raiclins v. Wickham ton (18G1) 7 H. & X. at p. 181, 30 (1858) 3 De G. & J. 304, 28 L. J. L. J. Ex. 337. Ch. 188. The cases where contracts (z) (1855) 15 C. B. 597, 24 L. J. to take shares have been held vcid- C. r. 100. able for misrepresentation in the prospectus are of the same kind. 4f» " The rule is universal, whatever fraud creates justice will destroy."' Vreeland v. N. J. Stone Co., 29 N. J. Eq. 188; Jones r. Emery, 40 N. H. 348. FRAUD OR DECEIT. 681 Or the representation may be of a general state of things : thus it is fraud to induce a person to enter into a particular arrange- ment b}^ an incorrect and unwarrantable assertion that such is the usual mode of conducting the kind of business in hand (b). How far it must be a representation of existing facts will be specially con- sidered. What is fraudulent concealment. " Active concealment " seems to be the appropriate description for the following sorts of conduct : taking means appropriate to the nature of the case to prevent the other party from learning a material fact — such as using contrivances to hide the defects of goods sold (c) :^^ or making a statement true in terms as far as it goes, but keeping silence as to other things which if dis- closed would alter the whole effect of the statement, so that what is in fact told is a half truth equivalent to a falsehood (d) :^^ or allowing *the other party to proceed on an erroneous belief to [556 which one's own acts have contributed (e). It is sufficient if it ap- pears that the one party knowingly assisted in inducing the other to enter into the contract by leading him to believe that which was known to be false (f). Thus it is where one party has made an inno- cent misrepresentation, but on discovering the error does nothing to undeceive the other (g).^^ If, when he has better knowledge, he (b)ReyncU v. Sprye (1852) 1 D. overrule the particular decision, per M. & G. G80, 21 L. J. Ch. 633. Lord Chelmsford, L. R. 6 H. L. 391. (c) See Benjamin on Sale, 470. (f) Per Blackburn J. Lee v. Jo)ies id) Peek v. Gurney (1873) L. R. (1863) 17 C. B. N. S. at p. 507, 34 6 H. L. 392, 403, 43 L. J. Ch. 19; L. J. C. P. at p. 140. Stewart v. Wyoming Ranche Co. {g) Reynell v. Hprye (1852) 1 D. (1888) 128 U. S. 383, 388. M. G. at p. 709; Redgrave v. Eurd (e) Hill v. Gray (1816) 1 Stark, (1881) 20 Ch. Div. at pp. 12, 13, 51 434. 18 R. R. 802, as explained in L. J. Ch. 11.3, but as to the difference Keates v. Earl Cadogan (1851) 10 there assumed between equity and C. B. 591, 600, 20 L. J. C. P. 76; qu. common law see per Bowen L.J. In if the explanation does not really Newiigging v. Adam (1886) 34 Ch. Div. at p. 594, 56 L. J. Ch. 275. 50Kenner v. Harding, 85 111. 264; Singleton's Admr. i'. Kennedy, 9 B. 'Mon. 222; Croyle r. Moses, 90 Pa. 250. 51 " The old adage applies, that half the truth is a lie." Hadley r. Clinton Importing Co., 13 Ohio St. 502, 513; Gluckstein r. Barnes, [1900] A. C. 240, 250; Henry v. Vance, 23 Ky. L. Rep. 491; Newell v. Randall, 32 Minn. 171; Mallory r. Leach, 35 Vt. 156, 168. So also " no one can CA'ade the force of the impression which he knows another received from his words and conduct, and which he meant him to receive, by resorting to the literal meaning of his language alone." ]\Iizncr V. Kusseli, 29 Mich. 229; Moline Plow Co. r. Carson. 72 Fed. Rep. 387, 391; Ennis r. H. Borner & Co.. 100 Fed. Rep. 12 (C. C. A.) ; Van Houten r. INIorse, 162 Mass. 414; Remington Co. v. Kezertee, 49 Wis. 409. 52Davies r. Insurance Co.. 8 Ch. D. 469, 475; Loewer r. Harris, (C. C. A.) 57 Fed. Rep. 368; Mudsill Min. Co. r. Watrous, (C. C. A.) 61 Fed. Rep. 163, 189; cp. Pettigrew v. Chellis, 41 N. II. 95. 682 MISREPRESENTATION AND FRAUD. does not remove the error to which he contributed in excusable igno- rance, he is no longer excused. In effect he is continuing the repre- sentation with knowledge of its falsity. Representation made without belief in its truth: actual knowledge of false- hood not necessary. That which gives the character of fraud or deceit to a representation untrue in fact is that it is made without posi- tive belief in its truth; not necessarily with positive knowledge of its falsehood. Where a false representation amounts to an actionable wrong, it is always in the party's choice, as an alternative remedy, to seek rescission of the contract, if any, which has been induced by the fraud : and it is settled that a false representation may be a substan- tive ground of action for damages though it is not shown that the per- son making the statement knew it to be false. It is enough to show that he made it as being true within his own knowledge, with a view to secure some benefit to himself, or to deceive a third person, and with- out believing it to be true (h). Effects of reckless ignorance. Mere ignorance as to the truth or false- hood of a material assertion which turns out to be untrue must be 557] treated as ^equivalent to knowledge of its untruth. " If per- sons take upon themselves to make assertions as to which they are ignorant whether they are true or untrue, they must in a civil point of view be held as responsible as if they had asserted that which they knew to be untrue" (i). In other words, wilful ignorance may have (h) Taylor v. Ashton (1843) 11 a statement of the Court below which M. & W. 401, 12 L. J. Ex. 363; was, "in substance, that a person Evans v. Edmonds (1853) 13 C. B. who makes representations of ma- 777, 22 L. J. C. P. 211. terial facts, assuming or intending (i) Per Lord Cairns, ReeUe River to convey the impression that he has Silver Mining Co. v. Smith (1869) actual knowledge of the existence of L. R. 4 H. L. 79; Raidins v. Wick- such facts, when he is conscious that ham (1858) 3 De G. & J. 304. 316, he has no such knowledge, is as much 28 L. J. Ch. 188. At common law responsible for the injurious conse- the same rule was given by Maule J. quences of such representations to in Evans v. Edmonds (1853) 13 C. one who believes and acts upon them B. 777, 786, 22 L. J. C. P. 211. "I as if he had actual knowledge of conceive that if a man having no their falsity: that deceit may also be knowledge whatever on the subject predicated of a vendor or lessor who takes upon himself to represent a makes material untrue representa- certain state of facts to exist, he tions in respect to his own business does so at his peril ; and if it be done or property for the purpose of their either with a view to secure some being acted upon, and which are in bpuefit to himself or to deceive a fact relied upon by the purchaser or third person, he is guilty of a fraud. lessee, the truth of Avhich represcnta- for he takes upon himself to warrant tions the vendor or lessor is bound his own belief of the truth of that and must be presumed to know." whicli he so asserts." In Lehigh TTrimble r. Reid, 19 Ky. L. Rep. Zinc find Iron Co. v. Bamford ( 189-5 1 f,04 : Weeks v. Currier, 172 Mass. 53: 150 U. S. 665. 673. the Supreme Arnold r. Teel, 182 Mass. 1. 4: Had- Court of the United States approved cock v. Osmer, 153 N. Y. 604.] FRAUD OR DECEIT. 683 the same consequences as fraud (k). So may ignorance which, though not wilful, is reckless: as when positive assertions of fact are made xis if founded on the party's own knowledge^ whereas in truth they are merely adopted on trust from some other person. The proper course in such a case is to refer distinctly to the authority relied upon (/).^^ However it is now settled in England that the want of any reason- able grounds for belief in one's assertion is evidence, but only evi- dence, that it was uttered without any real belief (m).^'^ Silence is equivalent to misrepresentation for these purposes if *■ the withholding of that which is not stated *makes that which [ 558 is stated absolutely false," but not otherwise (n).^^ Unwarranted statement of mere expectation as present fact. If a man expects, however honestly, that a certain state of things will shortly exist, he is not thereby justified in asserting by words or conduct that it does now exist, and any such assertion, if others have acted on the faith of it to their damage, ought to be a ground of action for deceit, and is of course ground for rescinding any contract ob- tained by its means. A stranger who accepts a bill as agent for the (fc) Owen V. Homan (1851) 4 H. (m) Derry v. Peek (1889) 14 App. L. C. at p. 103.5. Ca. 337, 58 L. J. Ch. 864. (?) Raiclins V. Wickham (1858) 3 (n) Peek v. Gurney (1873) L. R. De G. & J. at p. 313. 'Hmiih's case 6 H. L. 377, 390, 403. 43 L. J. Ch. 19. <1867) 2 Ch. at p. Gil. 53 See further Boddy V. Henry, 113 la. 4G2 ; Pieratt r. Young, 20 Ky. L. Eep. 1815; Xash v. Minnesota Title Co.. 103 Mass. 574; Niekerson r. Mass. Title Ins. Co., 178 Mass. 308, 311; Hamlin v. Abell, 120 Mo. IBS; Gerner r. Yates, 61 Xeb. 100; Houston v. Thornton. 122 X. C. 365; Lamberton r. Dun- ham, 165 Pa. 129; Giddings v. Baker, 80 Tex. 308. 54 But see 14 Harv. L. Rev. 06, 184. 55 In Laidlaw r. Organ. 2 Wheat. 178, there was a sale of tobacco at a time when tlie buyers knew, but tlie sellers did not know, that peace had been concluded between the United States and England. The sellers asked if there was any news affecting the market price. The buyers gave no answer, and the sellers did not insist on having one, and it was held that the silence of the buvers was not a fraudulent concealment. See also Cleaveland r. Richardson, 132 U. S. 318. 329: Crowell r. .lackson, 53 X. J. L. 656: Smith r. Countrvman. 30 X. Y. 655. 683. 684: Dambmann r. Schulting. 75 X. Y. 55; Kintz'inof v. McElrath, 5 Pa. 467; Xeill r. Shamburg, 158 Pa. '263; Fisher f. Budlong,"^10 R. I. 525, 527. 528. A person who knows that there is a r.iine on the land of another, of which the latter is ignorant, may nevertheless buy the land without disclosing the existence of the mine. Smith r. Beatty. 2 Tred. Eq. 456; Caples v. Steel. 7 Oreg. 491 ; Harris r. Tvson. 24 Pa. 347." And see Williams v. Spurr, 24 Mich. 335 : Burt ;;. Mason. 97 Mich. 127. But otherwise between partners. Hanlev r. Sweenev, 109 Fed. Rep. 712 erson AA'as .solvent who appeared to Mathre, 103 la. 261]. have ample means, but turned out (m) Smith v. Cliadicick (1884) 9 to be an impostor. The majority of App. Ca. 187, 51 L. J. Ch. 597, see the Court seem to have thought that especially per Lord Blackburn at pp. the plaintiff must in the circum- 199-201. Tlie language used in Eal- stances have known the defendant to lows v. Fernie (1868) L. R. 3 Ch. at be expressing only an opinion p. 476, seems to go too far. Lord Graffenstein i\ Epstein, 23 Kan. 443 ; Graham r. Pancoast, 30 Pa. 89 ; Cooper r. Lovering, 106 Mass. 77; Poland r. Brownell, 131 Mass. 138; Lilienthal r. Suffolk Co.. 154 Mass. 185; Cornwall r. McFarland, 150 Mo. 377; Garrison r. Technic Works. 55 N. J. Eq. 708, 715; Davis i\ Meeker, 5 Johns. 354; Ellis r. Andrews. 56 X. Y. 83; Chrysler v. Canadav, 90 X. Y. 272; Saunders v. Hatterman. 2 Ired. L. 32; Mosher v. Post, 89" Wis. 602. Except where the parties have not equal means of knowledge, or means are used to prevent dis- covery of the real value. Mudsill Min. Co. r. Watrous, 61 Fed. Rep. 163 (C. C. A.); Allen r. Hart, 72 111. 104; Murrav r. Tolman. 162 111. 417; O'Donnell Brewing Co. r. Farrar. 163 111. 471; Bish v. Beattv. Ill Ind. 403; Coulter V. Clark, 160 Ind. 311; Picard r. McCormick, 11 Mich. 68; French v. Ryan. 104 Mich. 625; Miller r. Voorheis, 115 :\Iich. 356; Griffin V. Farrier, 32 Minn. 474; Hedin v. Minneapolis Institute, 62 Minn. 146; Villett r. Moler, 82 :M]inn. 12. 17; Conlan r. Roemer, 52 X. J. L. 53; Simar r. Canaday, 53 X. Y. 298: People /•. Peckens. 153 X. Y. 576, 592; Bowen r. Fenn, 90 Pa. 359: Edelman r. Latshaw. ISO Pa. 419; McClellan )•. Scott, 24 Wis. 81; Maltbv r. Austin, 65 Wis. 527. See also Shelton ;;. Healy. 74 Conn. 265; Elerick r. Reid, 54 Kan. 57; Hess v. Draffen. 99 ^[o. App. 580: Titus r. Poole. 145 X. Y. 414: Handy r. Waldron. IS R. I. 567: Shaw r. Gilbert, 111 Wis. 165, and a note on the whole question in 35 L. R. A. 417. REPRESEXTATIOM MUST INDUCE THE CONTRACT. G93 B. The representation must induce the contract. The representation must be such as to induce the contract {dans locum coiit>-actui) {n)? No relief to a party who has acted on his own judgment. Eelief cannot be given on the ground of fraud or misrepresentation to a party who has in fact not acted on the statements of the other, but has taken steps of his own to verify them, and has acted on the judgment thus formed by himself (o).® " The Court must be careful that in its anxiety to correct frauds it does not enable persons who have joined with others in speculations to convert their speculations into certainties at the expense of those with whom they have joined '' {j)). It is not perfectly free from doubt whether in any, and if in any, in what cases the possession of means of knowledge which if used would lead to the discovery of the truth will bar the party of his remedy. As to means of knowledge: immaterial in case of active misrepresentation. In the case of active misrepresentation it is no answer *in pro- [566 ceedings either for damages or for setting aside the contract to say that the party complaining of the misrepresentation had the means Blackburn leaves it as an unsettled (o) See for a recent example, Far- question what would happen if the rar v. Churchill (1890) 135 U. S. defendant could in turn prove the 609. falsehood or ambiguity to be due to (p) Jennings v. Broughton a mere blunder. (1853-4) 5 D. M. G. 126, 140. 22 L. (n) Lord Brougham. Attirood V. J. Ch. 584; Dyer v. Hargrave (1805) Small (183.5-8) 6 CI. & F. 444, 49 10 Ves. 505, 8 K. K. 36. E. R. 137: Lord Wenslevdale. Smith V. Kay (1859) 7 H. L. C. 775-76. 7 Wagner v. Xational Ins. Co., 90 Fed. Rep. 395 (C. C. A); Moses v. Katzenberger, 84 Ala. 95; Darby v. Kroell, 92 Ala. 607; Bowman v. Carithers, 40 Ind. 90; Palmer r. Bell, 85 *Me. 352; Ely v. Stewart, 2 Md. 408; Dawe v. Morris, 149 Mass. 188. 192; Humphrey c. Merriam, 32 Minn. 197; Anderson r. Burnett. 5 How. (Miss.) 165; American Assoc, r. Bear, 48 Neb. 455; Brackett V. Griswold, 112 N. Y. 454; Hotchkin i: Third Bank, 127 N. Y. 329; Fov r. Houghton. 83 X. C. 467; Trammell v. Ashworth, 99 Va. 640; Fowler r. McCann, 86 Wis. 427. 8 Slaughter's Admr. v. Gerson, 13 Wall. 379; Clark r. Reeder. 158 U. S. 505, 524; Hough v. Richardson. 3 Story, 659; Brown r. Smith, 109 Fed. Rep. 26; Brewer r. Arantz. 124 Ala. 127; Wheeler r. Dunn. 13 Col. 428; Tuck v. Down- ing, 76 111. 71: Dadv r. Condit. 163 111. 511; Hagee v. Grossman, 31 Iml. 223; Merritt r. Dufur. 99 la. 211: Lilienthal v. Suffolk Brewing Co., 154 Mass. 185; Buxton r. Jones. 120 Mich. ,522: Halls r. Thompson, 1 S. & M. 443, 481, 482; Phibbs r. Buckman, 30 Pa. 401. So where the falsity of the statement is obvious. Trammell r. Ashworth, 90 Va. 646, 652. But a inedium who obtained property by means of alleged messages from the plaintiff's deceased hiisband cannot retain it on the ground that the falsity of the representations was obvious. Dean v. Ross, 178 Mass, 397. G94 THE EIGHT OF EESCISSIOX. jf making inquiries.^ "In the case of DohcU v. Stevens (q) . . . which was an action for deceit in falsely representing the amount of the business done in a imblic-house, the purchaser was held to be entitled to recover damages, although the books were in the house, and he might have had access to them if he had thought proper "(r). The rule was the same in the Court of Chancery. It was said of a purchaser to whom the state of the property he bought was misrepre- sented : — " Admitting that he might by minute examination make that discovery, he was not driven to that examination, the other party having taken upon him to make a representation. . . . The purchaser is induced to make a less accurate examination by the representation, which he had a right to believe "(s).^'' The principle is that " iSi'o man can complain that another has too implicitly relied on the truth of what he has himself stated "(/). And it is not enough to show that the party misled did make some examination on his own account; proof of cursory or inefEectual inquiries will not do(u). In order to bar him of his remedy, it must be shown either that he knew the true state of the facts, or that he did not rely on the facts as represented (a:). In 1867 the same principle was affirmed by Lord Chelmsford in the House of Lords (?/). The suit was instituted by a shareholder in a railway company to be relieved from his contract on the ground of 567] misrepresentations contained *in the prospectus. Here it was contended that the propectus referred the intending shareholder to other docimients, and offered means of further information : besides, the memorandum and articles of association (and of these at all events he was bound to take notice) sufficiently corrected the errors (q) (1825) 3 B. & C. 623; 27 E. (x) Redgrave v. Eurd (1881) 20 R. 441. C'li. Div. 1, 21 (Jessel M.R.). (r) Per Lord Chelmsford, L. E. 2 (y) Central Rjj. Co. of Venezuela H. L. 121. v. Kisch (1867) L. E. 2 H. L. 99. is) Dyer v. Eargrave (1805) 10 120. 36 L. J. Ch. 849. As to the Ves. at p. 509, 8 R. E. at p. 39. earlier and indecisive case of Att- (f) Rei/)iell V. Spn/e (1852) 1 D. vood v. f^mall (1835-8) 6 CI. & F. M. & G. at p. 710; Price v.Macaulay 232. 49 E. E. 115. see now Redqrave (1852) 2 D. M. & G. 3.39, .346. v. Eurd (1881) 20 Ch. Div. at p. 14, (u) Redgrave v. Eivd (1881) 20 51 L. J. Ch. 113. Ch. Div. 1,51 L. J. Ch. 113. 9 See cases cited infra, notes 11 and 12. But see contra, Farnsworth r. Duftner. 142 U. S. 43: Deminjj v. Darlinsr. 148 Mass. 504. 506: Hoist r. Stewart. 161 Mass. 516: Brady v. Finn. 162 Mass. 260. 266: Mahaflfey V. Ferguson, 156 Pa. 156 (cp. * Brotherton v. EeATiolds. 164 Pa. 134). ' io Mason v. Crosby, 1 Woodb. & M. 342. 353; Alger v. Keith. 105 Fed. Eep. 105; Burroughs r. Pacific Guano Co., 81 Ala. 255; Oswald v. McGehee, 28 Miss. 340, 353. EFFECT OF MEAXS OF KNOWLEDGE. 695 and omissions of the prospectus. But the objection is thus an- swered : — " When once it is established that there has been any fraudulent misrepre- sentation or wilful concealment by which a person has been induced to enter into a contract, it is no answer to his claim to be relieved from it to tell liim that he might have known the truth by proper inquiry. He has a right to retort upon his objector, ' You at least, who have stated what is untrue, or have concealed the trutli for the purpose of drawing me into a contract, cannot accuse me of want of caution because I relied implicitly upon your fairness and honesty.' " n Otherwise, it seems, in case of mere non-disclosure. This doctrine ap- pears, also on Lord Chehnsford's authority, not to apply to the case of mere non-disclosure, without fraudulent intention, of a fact which ought to have been disclosed. " When the fact is not misrepresented but concealed [or rather not communicated] (z) and there is nothing done to induce the other party not to avail himself of the means of knowledge within his reach, if he neglects to do so he may have no right to complain, because his ignorance of the fact is attributable to his own negligence " (a). Mere assertion of title. It appears also not to apply to a mere as- sertion of title by a vendor of land {h).^^ iz) See L. R. 2 H. L. 339. (h) Hume v. Pocock (1866) L. R. (a) yew Brunsicick, dc. Co. v. 1 Ch. 379, 385, 35 L. J. Ch. 731, Conybeare (1862) 9 H. L. C. 711, where however the real contract was 742, 31 L. J. Ch. 297. to buy up a particular claim of title, whatever it might be worth. 11 See Upton r. Englehart, 3 Dill. 496, 501 ; Strand v. Griffith, 97 Fed. Rep. 854, 856; Gammill r. Johnson, 47 Ark. 335; Hicks v. Stevens, 121 HI. 186; Matlock r. Todd, 19 Ind. 130; Ledbetter r. Davis, 121 Ind. 119; Carmichael r. Vandebur, 50 la. 651: McGibbons r. Wilder, 78 la. 531; McKee r. Eaton, 26 Kan. 226 ; Speed r. Hollingsworth, 54 Kan. 436 ; Roberts r. Plaisted, 66 Me. 335; David v. Park, 103 Mass. 501; Eaton r. Winnie, 20 Mich. 156; Cornell r. Crane, 113 Mich. 460; Porter v. Fletcher. 25 Minn. 493; Olson r. Orton. 28 Minn. 36; Erickson r. Fisher, 51 Minn. 300: Wannell r. Kem, 57 Mo. 478; Caldwell r. Henrv, 76 Mo. 254: Bank v. Hunt, 76 Mo. 439; Cottrill v. Krum, 100 Mo. 397; Turner r. Haupt. 53 X. J. Eq. 526; Mead r. Bunn, 32 N. Y. 275. 280; Fargo Coke Co. r. Fargo Electric Co., 4 X. Dak. 219; Chamberlin r. Fuller. 59 Vt. 256; McClellan v. Scott, 24 Wis. 81; Risch v. Von Lilicnthal, 34 Wis. 250. But see contra, Hoist r. Stewart, 161 Mass. 516; Brady v. Finn, 162 Mass. 260. 266. The rule does not apply in favor of the sul^scriber to the stock of a corpora- tion who resists payment of an assessment on the ground of false representa- tions as to matters controlled bv the charter. Parker r. Thomas, 19 Ind. 213, 219; Wight r. R.ailroad Co., 16 B. Mon. 4: Railroad Co. r. Anderson, 51 Miss. 829. 12 But in this coimtry it is generallv held that a person may rely upon representations as to title to land, although a search of the records would disclose their falsity. See L;\Tich r. Mercantile Trust Co., 18 Fed. Rep. 486; Zeis r. Potter, 105 Fed. Rep.' 671 : Baker r. Maxwell, 09 Ala. 558; Watson V. Atwood. 25 Conn. 313: Backer r. Pvne, 130 Ind. 288; Rohroff r. Schultze, 154 Ind. 183; Claggett r. Crall, 12 Kan. 393; Carpenter r. Wright, 52 Kan. 221; GOG THE EIGHT OF EESCISSION. In a case before Lord Hatherley, when A'.-C, the double ques- tion arose of the one party's knowledge that his statement was untrue, and of the other's means of learning the truth. The suit was for specific performance of an agreement to take a lease of a limestone quarry. The plaintiff made a distinct representation as to 568] the Cjuality of the ^limestone which was in fact untrue: he did not believe it to be false, but he had taken no pains to ascertain, as he might easily have done, whether it was true or not. But then the defendant had not relied exclusively upon this statement, for he went to look at the stone ; still he was not a limeburner by trade, and could not be supposed to have trusted merely to what he saw, being in fact rot competent to judge of the quality of limestone. The result was that the Court refused specific performance, declining to decide 'diether the contract was otherwise valid or not (c). Attempt to deceive inspection which purchaser omits to make. The case of Ilorsfall v. Thomas {d) was decided on the same principle: there a contrivance was used to conceal a defect in a gun manu- factured to a purchaser's order, but the purchaser took it without any inspection, and therefore, although the vendor intended to de- ceive him, had not been in fact deceived. It might also be given as a rule that the representation must be ma- terial. But to make this quite accurate it should be stated in the con- verse form, namely that a material representation may be presumed to have in fact induced the contract ; for a man who has obtained a con- tract by false representations cannot afterwards be heard to say that those representations were not material. The excuse has often been put forward that for anything that appeared the other party might no less have given his consent if the truth had been made known to him, and the Court has always been swift to reject it. When a falsehood is proved, the Court does not require positive evidence that it was successful (e) ; it rather presumes that assent would not have been given if the facts had been known (/). Those who have made false statements (c) Biggins v. ffamds (1862) 2 J. 6 Q. B. at p. G05 : but it seems good & H. 460, 468, 469. law. id) (1862) 1 H. & C. 90, 31 L. T. (e) Williams' case (1869) L. R. Ex. 322, dissented from by Cockburn, 9 Eq. 225, n. C.J., Smith V. Hughes (ISTl) L. R. if] Ex parte Kintrea (1869) L. R. 5 Ch. at p. 101, 39 L. J. Ch. 193. Young i: Hopkins, 6 T. B. Mon. 18; Newconie v. Ewing, 19 I\y. L. Rep. 821; Parham v. Randolph, 4 How. (Miss.) 435, 451; Kiefer r. Rogers. 19 Minn. 32; Bailey r. Smock, 01 Mo. 213; Herman v. Hall, 140 Mo. 270; Schwenk ?•. Naylor, 102 N. Y. 683; Hunt r. Baker, 22 R. I. 18. And see the cases cited in note 11, supra, and 49 Cent. Law Jour. 245. REPRESEXTATION INDUCING CONTRACT. 697 ♦cannot ask the Court to speculate on the exact share they may [569 have had in inducing the transaction (g) ;^^ or on what might have been the result if there had been a full communication of the truth (h) ; it is enough that an untrue statement has been made which was likely to induce the party to enter into the contract, and that he has done so ((■). Special circumstances may make a representation material which in ordinary cases of the same kind of contract would not be. If a moneylender who has become notorious for harsh and oppressive dealing attracts a borrower by advertising in an assumed name, a jury may find that the contract was fraudulent (k). An inference or pre- sumption of this class is of fact, not of law, and is open to contradic- tion like other inferences of fact (I). In like manner, if there has been an omission even without fraud to com.municate something which ought to have been communicated, it is too late to discuss wliether the communication of it would probably have made any difference (in). If it be asked in general terms what is a material fact, we may answer, by an extension of the language adopted by the Queen's Bench in a case of marine insurance {71), that it is anything which would affect the judgment of a reasonable man governing himself by the principles on which men in practice act in the kind of business in hand.i-' ig) Reynell v. Sprye (1852) ID. (k) Gordoti v. Street [1899] 2 y. M. G. at p. 708. B. 041, 69 L. J. Q. B. 45, C. A. (h) Smith v. Kay (1859) 7 H. L. (I) Lord Blackburn, Smith V. C. at p. 759. Chadwick (1884) 9 App. Ca. at p. (i) Per Lord Denman C.J. Wat- 196. 8on v. Earl of Charlemont (1848) 12 (m) Traill V. Baring (1864) 4 D. Q. B. 856, 864, 18 L. J. Q. B. 65. To J. S. at p. 330. the like effect, Jessel M.R. in Smith {n) lonides v. Pender (1874) L. V. Chadwick (1884) 20 Ch. Div. at p. R. 9 Q. B. 531, 43 L. J. Q. B. 227, 44 (see however note (I)). supra, p. *530. 13 Cabot V. Christie. 42 Vt. 121, 127; James v. Hodsden, 47 Vt. 127, 137. " It is not necessary that the false representations should have been the sole or even the predominant motive; it is enough that they had material influ- ence upon the plaintiff, although combined with other motives." Safford v. Grout, 120 Mass. 20, 25; Edgington V. Fitzmaurice, 29 Ch. D. 459, 481. 485; Re Ganv, 103 Fed. Rep. 930: Ruff r. Jarrett. 94 111. 475; Hgugh v. Richardson, 3 Story, 659, 690; Matthews r. Bliss, 22 Pick. 48; Fishback v. Miller, 15 Nev. 428; Morgan v. Skiddy, 62 N. Y. 319; Butler r. Prentiss, 158 N. Y. 49; Wilson r. Carpenter, 91 Va. "l83; Shaw r. Gilbert, 111 Wis. 165. But see Poska r. Stearns, 56 Neb. 541 ; Berkson r. Heldman, 58 Neb. 595. Where a party has been entrappert into a contract by fraud, and defends an action on it on that grmmd. it is no answer to his defense that, notwithstanding the fraud, if he will pay, his money will be so used that he will sustain no harm. W^ater Valley Mfg. Co. r. Seaman, 53 Miss. 655. 14 Whether a representation is material or not is a question of law. Cas- well r. Hunton. 87 Me. 277; Greenleaf v. Gerald, 94 Me. 91; Penn Ins. Co. v. Crane, 134 Mass. 56. 698 THE EIGHT OF RESCISSION. And contract incidental to fraudulent transaction is itself treated as fraudulent. There is an exception, but only an apparent one, to the rule that the representation must be the cause of the other party's 570] contracting. A contract arising directly out of a ^previous transaction l^etween the same parties which was voidable on the ground of fraud is itself in like manner voidable. A. makes a con- tract with B.. with the fraudulent intention of making it impossible by a secret scheme for B. to perform the contract. B. ultimately agrees to pay and does pay to A. a sum of money to be released from the contract : if he afterwards discovers the scheme B. can rescind this last agreement and recover the money back (o). '■' If tlie promoter of a company procures a company to be formed by improper and fraudulent means, and for the purpose of securing a profit to himself, which, if the company was successful, it would be unjust and in- equitable to allow him to retain [in the particular case a secret payment to the promoter out of purchase-money], and the company proves abortive and is ordered to be wound up without doing any business, the promoter cannot be allowed to prove against the company in the winding-up, either in respect of his services in forming the company or in respect of his services as an officer of the company after the company was registered" (p) . So it is where the parties really interested, though not the nominal parties, are the same. Thus where a sale of goods is procured by fraud, and the vendors forward the goods by railway to the pur- chaser's agent, and afterwards reclaim them, indemnifying the rail- way company, these facts constitute a good defence to an action by the purchaser's agent against the railway company, though the re- deliver}' to the vendors was before the discovery of the fraud and arose out of an unsuccessful attempt to stop the goods in transitu (q). C. Must be made by a party to the contract. The representation must be made by a party to the contract. This rule in its simple form is 571 ] elementary. It *is obvious that A. cannot be allowed to rescind his contract with B. because he has been induced to enter into it by some fraud of C. to which B. is no party (r).^^ Thus in Sturge v. (o) Barry v. Croslcey (1861) 2 J. tive case: as to the misconceived act & H. 1. being justified by reference to the ip) Per Cur. Hereford d S. Wales true ground of rescission afterwards Waqqon d Engineering Co. (1876) 2 discovered, cp. Wright's case (1871) Ch.biv. 621. 626, 45 L. J. Ch. 461. L. R. 7 Ch. .5.5, 41 L. J. Ch. 1. (q) Clongh v. L. d N. W. Ry. Co. (?•) See per Lord Cairns, Smith's (1871) (Ex. Ch.) L. R. 7 Ex. 26, 41 ca.se, L. R. 2 Ch. at p. 616. L. J. Ex. 17, an exceedingly instruc- 15 United States r. Dalles Military Road Co., 51 Fed. Rep. 629, 6.37; Lindsey V. Veasy, 62 Ala. 421; Pacific Co. r. Anglin, 82 Ala. 492; Fort Dear- 1)orn Bank r. Carter, 1.52 Mass. 34: Wachsmuth v. Martini, 154 111. 515; White V. Graves, 107 Mass. 325; Williamson r. Raney, Freem. Ch. (Miss.) FRAUD OF AGENTS. 699 Starr {s) a woman joined with Ikt supposed husband in dealing with lier interest in a fund. The marriage was in fact void, the man hav- ing concealed from her a previous marriage. It was held that this did not affect the rights of the purchaser. As to representations made by agents. When we come to deal with contracts made by agents the question arises to what extent the rep- resentations of the agent are to be considered as the representations of the principal for the purposes of this rule. And this question, though now practically set at rest by recent decisions, is one which has given rise to some diflficulty. A false statement made by an agent with Ms principal's express authority, the principal knowing it to be false, is obviously equivalent to a falsehood told by the principal himself;^® nor can it make any difference as against the principal whether the «gent knows the statement to be false or not.^^ But we may also have (s) (1833) 2 Mv. & K. 19-); cp. ^VhecUon v. Eardisty (1857) 8 E. & B. 232, 26 L. J. Q. B'. 2G5, 27 ih. 241. 112; Vass V. Riddick, 89 X. C. G; Riogan v. Sledge, IIG N. C. 87; Dangler r. Baker, 35 Oaio St. 073: Kulp v. Brant, 1G2 Pa. 222; Layne r. Bone, 12 Lea, CG7 ; Law v. Grant, 37 ^^■i^i. 548. But the misrepresentation of a third party may induce so vital a mistake as to prevent the formation of a contract. De Perez r. Everett, 73 Tex. 431. lOMaggart r. Freeman, 27 Ind. 531; Watson v. Crandall, 7 Mo. App. 233; affd., 78 Mo. 583. See also Haskell r. Starbird, 152 Mass. 117; Waterbury V. Andrews, G7 Mich. 281. 17 One who makes false statements to a " mercantile agency " as to his cir- cum.stances is equally liable to a subscriber to the agency to whom they are reported by it, and who relies upon them to his injury, as if they had been made originallv directlv to the partv injured. Fechheimer v. Baum, 37 Fed. Rep. 167, 177;" Re Epstein, 109 Fed.' Rep. 874; Re Weil, 111 Fed. Rep. 897; Lindauer r. Hay. 61 la. 663: Salisbury r. Barton, 63 Kan. 552; Bank r. Mich. Barge Co., 52 Mich. 1G4; Hinchman v. Weeks, 85 Mich. 535; Silberman V. Munroe, 104 Mich. 352: Ban'c r. Ludlum. 46 Minn. 160: Eaton. Cole & Burnham Co. r. Avery, 83 N. Y. 31; Gainesville Bank r. Bamberger, 77 Tex. 48. Cp. Vermont Marble Co. r. Smith, 13 Ind. App. 457 ; Poska r. Stearns, 56 Neb. 541; Berkson z". Heldman, 58 Xeb. 595; Macullar r. McKinlev, 99 N". Y. 353. If the statement made by the defendant to the mercantile agency is changed l)y the latter, the defendant is not liable. Wachsmuth r. Martini. 154 111. 515. * In Cortlandt Mfg. Co. r. Piatt, 83 Mich. 419. it was held that a merchant who had made a true statement to a commercial agency was not bound to giA'e notice of anv change in his circumstances short of actual or imminent insolvencv. But see Traill r. Baring, 4 De G. J. & S. 318. 329: Brownlie r. Campbell, 5 A. C. 925, 950: Cable v. United States Ins. Co., Ill Fed. Rep. 19, 28. In Sharpless r. Gummey, 166 Pa. 199, it was held that the plaintiff was not justified in relying on a statement made two and one-half years previously to a mercantile agency, and in Treadwell r. State, 99 Ga. 779. it was held that a statement made sixty days previously could not justifiably be relied on; but in Bradley r. Seaboard Bank, 167 X. Y. 427. wlierc two years had elapsed the court said (p. 430) "the time which elapsed between the date of the statement and the date of the note does not seem to be im- 700 THE RIGHT OF RESCISSIOX. the following eases. The statement may be not expressly authorised liy the principal, nor known to be untrue by him, but known to be untrue by the agent; or conversely, the statement may be not known to the agent to be untrue, and not expressly authorised by the prin- cipal, the true state of the facts being, however, known to the prin- cipal. There is no doubt that in the first case the principal is answerable, subject only to the limitation to be presently stated (t). In the second case there is every reason to believe that the same rule holds good, notwithstanding a much canvassed decision to the 572] contrary (u), which, if not overruled by the *remarks since made upon it (x),'^^ has been cut down to a decision on a point of pleading which perhaps cannot, and certainly need not, ever arise again. The only question is whether the representation was within the agent's authority. These distinctions have to be considered only when there is a question of fraud in the strict sense, and then chiefly when it is sought to make the principal liable in damages. Where a non- fraudulent misrepresentation suffices to avoid the contract, there it is clear that the only thing to be ascertained is whether the repre- sentation was in fact within the scope of the agent's authority. And it seems to be now the law that this is the only question even in a case of fraud. It has been so laid down by a considered judgment of the Exchequer Chamber (y), fully approved by later decisions of the Judicial Committee (2). According to this the rule is "that (t) The rule applies to an agent v. /Jnglish Joint Stock Bank (1867) who profits by the fraud of a sub- L. R. 2 Ex. 262. agent employed by him: Cockburn (y) Bariciclc v. English Joint C.J. in Weir v. Bell (1878) 3 Ex. D. Stock Bank (1867) L. R. 2 Ex. 259, at p. 240. 36 L. J. Ex. 147. {u) Cornfoot V. Fowke (1840) 6 {z) Mackay \\ Commercial Bank of M &W 358. ^'cio Brunsicick (1874) L. R. 5 P. '{x) 2 Sm. L. C. 81, 86: and see C. 304, 411, 43 L. J. P. C. 31: Swire eepeciallv per Willes J. in Barwick v. Francis (1877) 3 App. Ca. 106, 47 L. J. P. C. 18. ■ portant. The firm cannot be heard to say tliat its mischievous foroe was operative longer than it expected it to be." In general a statement made to one person with the expectation that it will be communicated to another is the same as if made directly to the latter. lasigi r. Brown, 17 How. 183, 104; McKenzie r. Weineman. 116 Ala. 194; Henry r. Dennis, 95 Me. 24; Chubbuck ;;. Cleveland. 37 Minn. 466; Bradley r. Bradley, 165 N. Y. 183; Dickie v. Nashville Abstract Co., 89 Tenn. 431. So if made to the communitv in general. Andrews r. Mockford. [1896] 1 Q. B. 372: Hindman v. Bank.' 98 Fed. Rep. 562. 569: Windram r. French, 151 Mass. 547, 550: Ensel r. Lew. 46 Ohio St. 255. 264. 18 Fitzsimmons r. Joslin, 21 Vt. 129, 140. And see Crump r. United States Min. Co., 7 Gratt. 352. FRAUD OF AGEXTS. 701 the master is answerable for every sueh wrong,"" including fraud, *' of the servant or agent as is committed in the course of the service and for the master"s benefit, though no express command or privity of the master be proved."' Although the master may not have author- ised the particular act, yet if '" he has put the agent in his place to do that class of acts," he must be answerable for the agent's conduct. It makes no difference whether the principal is a natural person or a corporation (a).^'"^ In two of the cases just referred to, a banking corporation was held to be liable for a false representation made by one of its officers in the course of the business usually conducted by him on behalf of the bank ; and this involves the proposition that the party *misled is entitled to rescind the contract induced by [573 such representation.^*^ (a) L. E. 5 P. C. 413-5, dissentin;[j cisive, have not been followed. Swift from the dicta on this point in v. Jewshunj (1874) (Ex. Ch.) L. R. Western Bank of Scotland v. Addle 9 Q. B. at p. 312, per Lord Coleridge (1867) L. R. 1 Sc. & D. 145, which, C.J. Cp. I. C. A. § 238. though apparently intended to be de- 19 Houldsworth r. Bank, 5 App. Ca. 317, 32G, per Lord Selborne, L. C; Chapleo r. Brunswick Beneiit Bldg. Soc, 5 C. P. D. 331; Railroad Co. r. Pranklin Bank, 60 Mr. 30; Fishkill Sav. Inst. V. Bank, 80 N. Y. 162, 166, 167; Cragie V. Hadley, 99 N. Y. 131. 20 St. Louis, etc., Ry. Co. v. Johnston, 133 U. S. 566; Richardson r. Denegre, 9.3 Fed. Rep. 572 (C. C. A.) ; Richardson v. New Orleans Co., 102 Fed. Rep. 780 (C. C. A.) ; Richardson v. Olivier, 105 Fed. Rep. 277 (C. C. A.) ; Higgins r. Havden, 53 Xeb. 61: Cragie v. Hadley, 99 X. Y. 131; Bank v. Forty-second St. R.' Co.. 137 X. Y. 231, 241; Grant r. Walsh, 145 X. Y. 502; Williams V. Cox, 99 Tenn. 403. The principal, whether a natural person or a corporation, cannot take the benefit of acts or negotiations of an agent without bearing the burden of any liabilities growing out of them on account of any falsehoods or frauds of the agents that accompanied them. Veazie v. Williams, 8 How. 134; Mason v. Crosbj^ 1 Woodb. & 'M. 342, 358; Doggett v. Emerson, 3 8tory, 700, 735; Upton V. Englehart, 3 Dill. 49G ; Williamson v. Tyson, 105 Ala. 644; Riser r. Walton, 78 Cal. 490; Scofield, etc., Co. f. State, 54 Ga. 635; Tome v. Railroad Co., 39 Md. 30; Fogg r. Griffin, 2 Allen, 1; Jewett v. Carter, 132 Mass. 335; Rackemann r. Riverbank Co., 167 Mass. 1; Weeks v. Currier, 172 Mass. 53; Knappen r. Freeman, 47 Minn. 491; Bank r. Gregg, 14 X. H. 331; Presbv r. Parker. 56 X. H. 409 ; Garrison r. Technic Electrical Works, 55 X. J. "Eq. 708; Railroad Co. r. Schuvler, 34 X. Y. 30; Elwell v. Chamberlain, 31 X. Y. 611, 619; Mayer r. Dean,' 115 X. Y. 556; Fairchild v. Mc:\[abon. 139 X. Y. 290; Carr r. Xational Bank. 107 X. Y. 375: Jones v. Xational Bldg. Assn.. 94 Pa. 215: Insurance Co. ;•. Humble. 100 Pa. 495; McXeile V. Cridland, 168 Pa. 10: Meverhoff i^ Daniels. 173 Pa. 555: Crump r. U. S. Mining Co.. 7 Gratt. 352: Law r. Grant, 37 Wis. 548; Waldo v. Railroad Co., 14 Wis. 575; Henderson r. Railroad Co., 17 Tex. 560. That the principal is liable in an action of deceit, for the false representa- tions made by an agent acting in the course of his business for his principal, see Lvnch r.'Mercnntile Trust Co.. IS Fed. Ren. 486: Citv Bank ?'. Dun. 51 Fed. Ren. IfiO: Wilder r. Beede. 119 Cal. 046; Wiest Florida Land Co. v. Studebakev. 37 Fla. 28: Rlioda r. Annis, 75 Me. 17; Locke r. Stenrns, 1 Met. 560: White r. Rawver. 16 Grnv. 586, 589; Haskell v. Starbird. 152 Mass. 117; Davies r. Lvon, 36 Minn. 427: Hornblower v. Crandall. 7 Mo. App. 220, 231; 702 THE EIGHT OF KESCISSION. Directors and promoters. The directors and other officers of compa- nies, acting within tlie functions of their offices, are for this purpose agents, and tlie companies are hound hy their acts and conduct. Con- versely, where directors employ an agent for the purposes of the company, and that agent commits a fraud in the course of his em- ployment without the personal knowledge or sanction of the directors,, the remedy of persons injured by the fraud is not against the directors, who are themselves only agents, but against the company as ultimate principal (&) ; and one director is not liable for fraud committed by another director without his authority or concurrence (c).^^ Re- ports made in the first instance to a company by its directors, if afterwards adopted by a meeting and " industriously circulated," must be treated as the representations of the company to the public, and as such will bind it (d). Statements in a prospectus issued by pro- moters before the company is in existence cannot indeed be said with accuracy to be made by agents for the company: for one cannot be an agent even by subsequent ratification for a principal not in existence and capable of ratifying at the time (e). But such state- ments also, if afterwards expressly or tacitly adopted, become the statements of the company. It is a principle of general application, by no means confined to these cases, that if A. makes an assertion 574] to B., and B. repeats it to C. in an *unqualified manner, in- tending him to act upon it, and C. does act upon it, B. makes that assertion his own and is answerable for its consequences. If he would guard himself, it is easy for him to say: "This is what A. tells me, and on his authority I repeat it; for my own part I believe (b) Weirv.Barnett (1877) 3 Ex. (c) Cargill v. Bower (1878) 10 Ch. D. ;32, affd. in C. A. nom. Weir v. D. .502, 47 L. J. Ch. 649. Bell (1878) ih. 238, 47 L. J. Ex. 704. {d) Per Lord Westbury, Islew But a director who profited by the Brunswick, ac. Co. v. Conybeare fraud after knowledge of it would (1862) 9 H. L. C. 711, 725, 31 L. J. probably be liable: see judf2;mcnts of Ch. 297. See further, as to what Cockburn C.J. and Brett L.J. And must be shown to bind a company in directors who delefjated their ofTiee I'espect of misrepresentations in- without authority, so that their dele- ducinj? a person to take shares: pate did not become the company's Lynde V. Aiiglo-Italinn Hemp ( X. Y. 98; Jaffray v. Wolf, 4 Okl. 303. Though it seems impossible to support the maintenance of an action on the contract for the price before the period of credit has expired, there seems good ground for allowing the plaintiff' at once to rescind the contract and instead of sueing in trover to waive the tort and sue in assumpsit, not for the price of the goods, but for their value. Barrett v. Koella, 5 Biss. 40; Dietz's Assigniee v. Putcliff, 80 Ky. G50; Crown Cvcle Co. v. Brown, 39 Oreg. 285. See further, 44 Cent. L. J. 380. If the buyer has committed an act of bankruptcy the seller may petition him into bankruptcy, though the period of credit has not expired. Re Raatz, [1897] 2 Q. B. SO. 708 THE EIGHT OF EESCISSIOX. Aviii have the same effect (u).^^ Taking steps to enforce the contract is a conclusive election not to rescind on account of anything known at the time (.t).^^ A shareholder cannot repudiate his share on the ground of misrepresentations in the prospectus if he has paid a call without protest or received a dividend after he has had in his hands a report showing to a reader of ordinary intelligence that the state- (m) Clough v. L. d N. W. liy. Co. {x) Gray v. Fowler (1873) (Ex. (1871) (Ex. Ch.) L. R. 7 Ex. at p. Oh.) L. R. 8 Ex. 249, 280, 42 L. J. 34. Ex. 161. 28 See next note. And when the contract is once disaffirmed the election ig completely determined. Farwell r. Myers, 59 Mich. 179; Moller r. Tuska, 87 N. Y. 166. So when the contract is once affirmed. Follett v. Brown, 188 III. 244; Weaver r. Shriver, 79 Md. 530; Wylie r. Gamble, 9.5 Mich. .564; Paine v. Harrison, 38 Minn. 346; Crooks r. Nippolt, 44 Minn. 239; Hutton r. Dewing, 42 W. Va. 691. In Kingman r. Stoddard, 85 Fed. Rep. 740; Simon v. Goodyear Co., 105 Fed. Rep. 573, 579, it was held that if a party to an executory contract which he was induced to enter into by fraud continues to carry it out and to exact performance from the other party after notice of the fraud, he cannot main- tain an action for the deceit. 29 " \Yhere a vendee purchases goods by means of such fraudulent repre- sentations as entitle the vendor to disaffirm tlie sale and reclaim the goods as his own property, and the vendor, after discovering the fraud, voluntarily brings an action on the contract of sale and purchase to recover the price, that is, as matter of law, an affirmance of the sale, and the vendor cannot thereafter set up title and claim the goods on the ground of the original fraud." Dibblee v. Sheldon, 10 Blatchf. 178; Bulkley r. Morgan, 46 Conn. 393; O'Donald v. Constant, 82 Ind. 212; Lowenstein v. Glass, 48 La. Ann. 1422; Stokes r. Burns, 132 Mo. 214; Stoutenburgh v. Konkle, 2 McCarter, 33; Llovd r. Brewster, 4 Paige, 537; Conrow v. Little, 115 N. Y. 387; Bach v. Tuch. 126 X. Y'. 53; Genet r. Delaware Canal Co., 170 X. Y. 278, 296. And see Davis r. Betz, 66 Ala. 206; Seavev v. Potter, 121 Mass. 297; Heller r. Elliott, 45 X. J. L. 564; Acer v. Hotchkiss, 97 X. Y. 395. Contra, Flower r. Brumbach, 131 111. 646. And .see Farwell Co. r. Hilton, 84 Fed. Rep. 293; White r. Beal, 65 Ark. 278 : Bolton Co. r. Stoker. 82 :\Id. 50. So proving a claim for the price against the assignee of an insolvent vendee. Droege v. Ahrens, 163 X. Y. 466. So also accepting security for the price, with knowledge of the fraud. Bridgeford v. Adams, 45 Ark. 136 ; Joslin v. Cowee, 52 X. Y. 90. In Browning r. De Ford, 178 U. S. 196, however, defrauded vendees, who had sued for the jirice on the contract and attached the property sold, were held entitled to prevail over mortgagees of the property, though the mortgage was prior to the attachment, Ijecause the mortgagees had notice of the fraud. See al^o Xicholls r. McShane, 16 Col. App. 165. And bringing an action for the purchase price in ignorance of the fraud Avill not preclude a subsequent rescission upon discovery of the fraud. Deere r. Morgan, 114 la. 287; Kraus v. Thompson. 30 Minn. 64; Goodtjer r. Finn, 10 Mo. App. 226; Paquin r. :\Iilliken, 163 :\Io. 70; Equitable Co. v. Hersee, 103 X. Y. 25: Hays v. ISIidas. 104 X. Y. 602; Lee v. Burnham, 84 Wis. 209. Cp. Re Epstein. 109 Fed. Rep. 874. Finally, "A vendor of goods, the sale and delivery of which was induced by fraud on the part of the vendee, does not. by an effort to retake the entire property, which is successful in part only, lose the right to pursue the vendee for the value of the unfound portion." Powers r. Benedict, 88 X. Y. 605. And see Re Hirschman. 104 Fed. Rep. 69: Browning v. Bancroft, 8 Met. 278; Sleeper r. Davis. 64 X. H. 59; Singer V. Schilling, 74 Wis. 369. Cp. Farwell r. Myers, 59 Mich. 178. ELECTION TO RESCIND. 709 ments of the prospectus *WGre not true (y), or if after discover- [579 ing the true state of things he has taken an active part in the affairs of the company (z),^'^ or has affirmed his ownership of the shares by taking steps to sell them («) ; and in general a party who voluntarily acts upon a contract which is voidable at his option, having knowl- edge of all the facts, cannot afterwards repudiate it if it turns out to his disadvantage (&).^^ And when the right of repudiation has once been waived by acting upon the contract as subsisting with knowledge of facts establishing a case of fraud, the subsequent dis- covery of further acts constituting " a new incident in the fraud " cannot revive it (c).^^ The exercise of acts of ownership over prop- erty acquired under the contract precludes a subsequent repudiation, but not so much because it is evidence of an affirmative election as because it makes it impossible to replace the parties in their former position ; a point to which we shall come presently. When the acts done are of this kind it seems on principle imma- terial whether there is knowledge of the true state of affairs or not, unless there were a continuing active concealment or misrepresenta- tion practised with a view to prevent the party defrauded from dis- covering the truth and to induce him to act upon the contract; for iy) Scholey v. Central Ry. Co. of the objects of the company as stated Tenesuela (1867-8) L. R. 9 Eq. in the prospectus. 2m, n. (h) Ormes v. Beadel (1860) 2 D. iz) Sharpley v. Louth and East F. & J. 3.32, 336, 30 L. J. Ch. 1. Coast Ry. Co. (1876) 2 Ch. Div. 663, (c) Campbell v. Fleming (1834) 1 46 L. J. Ch. 259. A. & E. 40. This does not apply (o) Ex parte Briggs (1866) L. R. where a new and distinct cause of 1 Eq. 483. 3.5 L. J. Ch. 320; this how- rescission arises: Gray v. Fowler ever was a case not of mis-stated (1873) L. R. 8 Ex. 2'49, 42 L. J. Ex. facts, but of material departure from 161. 30 0gilvie r. Insurance Co., 22 How. 380; Upton v. Jackson, 1 Flipp, 413; Marten v. Burns Wine Co., 99 Cal. 355. See further, 26 Am. L. Reg. 16. 31 Simon v. Goodyear Co., 105 Fed. Rep. 573 ; Griggs r. Woodruff, 14 A\a. 9; Thweatt r. McLeod, 56 Ala. 375; Davis v. Betz, 66 Ala. 206; Pintard r. Martin, 1 S. & M. Ch. 126; Rogers V. Higgins, 57 111. 244; Plympton r. Dunn, 148 Mass. .523; Dunks v. Fuller, 32 Mich. 242; Thompson v. Libby. 36 Minn. 287: Edwards v. Roberts, 7 S. & M. 544: Dennis r. .Jones, 44 is -J. Eq. 513; Railroad Co. V. Row, 24 Wend. 74; Cobb v. Hatfield, 46 N. Y. 533; People V. Stephens, 71 N". Y. 527: Baird r. Mayor. 96 N. Y. 567, 598; Bostick V. Haynie, 36 S. W. Rep. 856 (Tenn. Ch.) ; Weisiger v. Richmond Machine Co., 90 Va. 795; Grannis i: Hooker, 31 Wis. 474. See also Dickson r. Patterson, 160 U. S. 584. 32 "Although the party who seeks to rescind a contract on the ground of concealment of material facts may have confirmed the contract after acquir- ing knowledge of some of the facts concealed, yet if suflScient facts were unknown to him at the time of confirmation to authorize a rescission such affirmation cannot effectually prevent it." Pratt r. Philbrook. 41 Me. 132. See also Pierce r. Wilson, .34 Ala. 596, 605: Taylor r. Short, 107 Mo. 384; Wilson r. Hundley, 96 Va. 96. Cp. Alger v. Keith, 105 Fed. Rep. 105. 710 THE EIGHT OF EESCISSIOX. fiicn the affirmation itself would be as open to repudiation as the original transaction. Something like this occurs not unfrequently in cases of undue influence, as we shall see in the next chapter. Omission to repudiate within a reasonable time is evidence, and 580] may be conclusive evidence, of an election to *affirm the con- tract ; and this is in truth the only effect of lapse of time."^ Still it will be more convenient to consider this point separately afterwards. Election to rescind must be communicated to other party. If on the other hand the party elects to rescind, he is to manifest that election by distinctly communicating to the other party his intention to reject the contract and claim no interest under it. One way of doing this is to institute proceedings to have the contract judicially set aside, and in that case the judicial rescission, when obtained, relates back to the date of the commencement of such proceedings (d).^'^ Or if the other party is the first to sue on the contract, the rescission may be set up as a defence, and this is itself a sufficient act of rescission without any prior declaration of an intention to rescind (e). For the pur- poses of pleading the allegation that a contract was procured by fraud has been held to import the allegation that the party on dis- covering it disaffirmed the contract (/). Where the rescission is not declared in judicial proceedings, no further rule can be laid down than that there should be " prompt repudiation and restitution as far as possible" (17). What communication sufficient. The communication need not be for- mal, provided it is a distinct and positive rejection of the con- tract, not a mere request or inquiry, which is not enough (h).^^ But it seems that if notwithstanding an express repudiation the other party persists in treating the contract as in force, then judicial steps should be taken in order to make the rescission complete as against rights of third persons which may subsequently intervene. Espe- (d) Reese River Silver Mining Co. Deposit Life Assurance Co. v. Ays- v. Smith (1869) L. R. 4 H. L. 73-5, cough (1850) 6 E. & B. 761, 26 L. 39 L. J. Ch. 849. As to shares in J. Q. B. 29. are not whollj- consistent, companies, see below. (g) Per Bramwell B. Bu-lch-y- (e) Clough v. L. & N. W. Ry. Co. Phcm Lead Mininq Co. v. Baynes (1871) (Ex. Ch.) L. R. 7 Ex. 36, 41 (1867) L. R. 2 Ex. 326, 36 L. J. Ex. L. J. Ex. 17. 183. (f) Danes V. Harness (1875) L. R. (h) See Ashley's case (1870) L. K. 10 C. P. 166, 44 L. J. C. P. 194. The 9 Eq. 263, 39 L. J. Ch. 354. earlier cases there cited, especially 33 Quoted with approval in Bostwick r. Mutual Ins. Co., 116 Wis. 392, 422. 34 Thomas r. Coultas, 76 111. 493; Gould ;•. Bank. 86 N. Y. 75, 83. S5 Hammond v. Pennock, 61 N. Y. 145, 155; Potter r. Taggart, 54 Wis. 395. ELECTION MUST BE COMMUXICATED. 711 cially this is the case as to repudiating shares in a company. The creditors of a *coinpany are entitled to rely on the register [581 of shareholders for the time heing, and therefore it is not enough for a shareholder to give notice to the company that he claims to re- pudiate. A stricter rule is applied than would follow from the ordi- nary rules of contract (t). " The rule is that the repudiating share- holder must not only repudiate, but also get his name removed, or commence proceedings to have it removed, before the winding-up (k) ; but this rule is subject to the qualification that if one repudiating shareholder takes proceedings the others will have the benefit of them if, but only if, there is an agreement between them and the company that they shall stand or fall by the result of those proceedings, but not otherwise" (l). "Where the original contract was made with an agent for the other party, communication of the rescission to that agent is sufficient, at all events before the principal is disclosed (m). And where good grounds for rescission exist, and the contract is rescinded by mutual consent on other grounds, those groimds not being such as to give a right of rescission, and the agent's consent being in •excess of his authority, yet the rescission stands good. There is noth- ing more that the party can do, and when he discovers the facts on which he might have sought rescission as a matter of right he is entitled to use them in support of what is already done.^^ In Wright's case (n) the prospectus of a company contained material misrepre- sentations. The *directors had at a shareholder's request, and [582 on other grounds, professed to cancel the allotment of his shares, wliich they had no power to do, though they had power to accept a surrender. Afterwards the company was wound up, and then only was the misrepresentation made known to him. But it was held that as there was in fact a sufficient reason for annulling the contract, which the directors knew at the time though he did not, the contract (i) Kent V. Freehold Land, dc. Co. of cases per Baggallay L.J. 23 Ch. D. (1868) L. R. 3 Ch. 493; Flare's case at p. 433. (18G9) L. R. 4 Ch. 503; Re Scottish, {k) I.e. before the presentation of Petroleum Co. (1883) 23 Ch. Div. a winding-up petition on which an 413. But if there are several repudi- order is made: Whiteley's case ating shareholders in a like position, [1899] 1 Ch. 770, 68 L. J. Ch. 36.5. proceedings taken by one of them and (1) Lindley L.J. 23 Ch. D. at p. treated by agreement with the com- 437. pany as representative will enure for (m) Mavnard v. Eaton (1874) L. the" benefit of all: Paicle's case R. 9 Ch. 414, 43 L. J. Ch. 641. (1867) L. R. 4 Ch. 497. 38 L. J. Ch. («) (1871) L. R. 7 Ch. 55. 41 L. J. 318: llcyiclVs case (1870) L. R. lO Ch. 1; cp. dough V. L. & N. W. Ry. Eq. 503, 39 L. J. Ch. 822. apparently Co.. supra, p. *570. rests only on this ground : see review 36 See King r. Faist, 161 Mass. 449, 458. 712 THE EIGHT OF EESCISSION. was eifectually annulled, and he could not be made a contributory even as a past member (o). Right of rescission exerciseable by and against representatives. Inas- much as the right of rescinding a voidable contract is alternative and co-extensive with the right of affirming it, it follows that a voidable contract may be avoided by or against the personal representatives of the contracting parties (p). And further, as a contract for the sale of land is enforceable in equity by or against the heirs or devisees of the parties, so it may be avoided by or against them where grounds of avoidance exist (q). A party exercising his option to rescind is entitled to be restored so far as possible to his former position. This includes a right to be indemnified against obligations incurred under the contract, but it is doubtful whether it extends to liabilities which are natural con- sequences of the contract but are not created by the contract itself; for it may be said that an indemnity which extended so far would not be distinguishable from the damages recoverable in an action for deceit ; and the remedy of rescission is applicable in many cases where 583] deceit is not in question. *It has not yet been necessary to resolve this somewhat speculative doubt (r). B. No rescission unless parties can be restored to former position. The contract cannot be rescinded after the position of the parties has been changed so that the former state of things cannot be restored. Where the party in fault has acted on the faith of the contract. This may happen in various ways. The party who made the mis- representation in the first instance may have acted on the faith of the contract being valid in such a manner that a subsequent rescis- (o) But Wickens V.-C. thought tho defendants through more than otherwise in the Court below (L. R. one succession. 12 Eq. 331) and the correctness of (r) In Newbigging \\ Adam (ISSCi) the reversal is doubted by Lord 34 Ch. Div. 582, 5G L. J. Ch. 275, Lindley (on Companies, 777). Bowen L.J. proposed to limit the in- (p) Including assignees in bank- demnity to liabilities created by the ruptcy: Load V. Green (1846) 15 M. contract; Cotton and Fry L.JJ. in- & W. 216, 15 L. J. Ex. 113; Donald- clined to a larger view; but the re- son V. Farwell (1876) 93 U. S. 631. lief actually sought came Avithin [Koch /•. Lyon, 82 Mich. 513.] cither definition. The case \\ent in iq) Gresley v. Mousley (1861) 4 1888 to the House of Lords, where De G. & J. 78; and see cases cited in it turned out that in the circum- next chapter, nd fin., and Charter stances a decision upon this branch v. Trerelyan (1844) 11 CI. & F. 714, of the case was not required, and no w*here the parties on both sides were opinion was given on it: 13 App. Ca. ultimately representatives and as to 308, 57 L. J. Ch. 1066. LIMITS OF THE RIGHT. 713 sion would work irreparable injury' to him/'^' And here the rule applies, but with the important limitation, it seems, that he must have so acted to the knowledge of the party misled and without pro- test from him, so that his conduct may be said to be induced by the other's delay in repudiating the contract. ^^ Thus where a policy of marine insurance is voidable for the non-disclosure of a material fact, but the delay of the underwriters in repudiating the insurance after they know the fact induces the assured to believe that they do not intend to dispute it, and he consequently abstains from effecting any other insurance, it would probably be held that it is then too late for the underwriters to rescind (s). Common dealings with subject-matter of contract. Or the interest taken under the contract by the party misled may have been so dealt with that he cannot give back the same thing he received. On this prin- ciple a shareholder cannot repudiate his shares if the character and constitution of the company have in the meantime been altered. This was the case in Clarke v. Dickson (t), where the plaintiff *had [584 (s) Fer Cnr. Morrison y. Universal v. L. d X. W. Ri/. Co. (1871) (Ex. Marine Insurance Co. (1873) (Ex. Ch.) L. R. 7 Ex. at p. 35. Ch.) L. R. 8 Ex. at p. 205 ; cp. Cloitgh (t) ( 1859) E. B. & E. 148, 27 L. J. Q. B. 223. 3T Quoted and applied in Bostwick r. Mutual Ins. Co., 116 Wis. 392, 422. 38 '• \Yhere a party seeking to rescind a contract, on the ground of fraud, acts without unnecessary delay, and restores or offers to restore that which he has received, it is no defense that the wrong-doer has, by his own act, made a full restoration impossible on his part, or has entered into obligations to others. He cannot prevent a restoration as far as is within his power, by showing that he lias himself done acts which prevent his being restored to his original position." Hammond r. Pennock, 61 X. Y. 145; Hopkins r. Snedaker, 71 111. 449; Harper r. Terry, 70 Ind. 264; Brown V. Norman. 65 Miss. 369; Butler r. Prentiss, 158 N. Y. 49, 63; Gates V. Raymond, 106 Wis. 657. On a sale, induced by fraud, of whisky then in a United States bonded warehouse, the fraudulent vendee, in order to obtain possession, paid the tax due on the whisky. It was held that the vendor rescinding could reclaim the whisky, and need not reimburse the vendee for the sum paid for taxes; Guckenheimer r. Angevine, 81 X. Y. 394. Similarly in the case of other charges. Soper Lumber Co. r. Halsted Co., 73 Conn. 547 ; Snow v. Alley, 144 Mass. 547, 552; Weeks r. Currier, 172 Mass. 53. " When without fault on the part of the one defrauded, seeking relief in equity on account of advantage taken of fiduciary relations, it is impossible to restore the one guilty of the fraud to his original condition, the general rule of restoration is not strictly applied, because it would become a loophole for the escape of the fraud. Equity makes a reasonable application of the rule by requiring whatever fair dealing requires under all the circum- stances of the particular case, but it does not permit the rule to become a shield for wrongdoing." Butler r. Prentiss. 158 X. Y. 49. 64. See also Tliackrah r. Haas, 119 U. S. 499; McCarty v. New York Ins. Co., 74 Minn. 530; Mills r. Central R. Co.. 41 X. J. Eq." 1; Henninger v. Heald, 51 N. J. Eq. 74; Conlan v. Roemer, 52 N. J. L. 53. 714 THE EIGHT OF KESCISSIOX. tpkon shares in a cost-book mining company. The company was afterwards registered under the Joint Stock Companies Act then in force, apparently for the sole purpose of being wound up. In the course of the winding-up the plaintiff discovered that fraudulent mis- representations had been made by the directors. But it was by this time impossible for him to return what he had got; for instead of shares in a going concern on the cost-book principle he had shares in a limited liability company which was being wound up (u). It was held that it Avas too late to repudiate the shares, and his only remedy was by an action of deceit against the directors personally responsible for the false statements (x). As Crompton J. put it, "You cannot both eat your cake and return your cake" (y). A similar case on tb.is point is Western Banl: of Scotland v. Addie (z). There the com- pany was an unincorporated Joint stock banking company when the respondent took his shares in it. As in Clarl-e v. Dichson, it was •afterwards incorporated and registered for the purpose of a volun- tary winding-up. It was held as a probable opinion by Lord Chelms- ford, and more positively by Lord Cranworth, that the change in the condition of the company and of its shares was such as to make restitution impossible, and therefore the contract could not be re- scinded (a). There is some reason to think that where goods or securities have been delivered under a contract voidable by the 585] *buyer on the ground of fraud, and before the repudiation their value has materially fallen through some cause unconnected with the fraud, this is such a change in the condition of the thing con- tracted for as to make restitution impossible in law {h)?'^ Conduct of party misled. The case is simpler where the party misled Tias himself chosen to deal with the subject-matter of the contract, by (w) The fact of the winding-up remitted to the jxisition of a mere having begun before the repudiation debtor of the company he is not of the shares is of itself decisive ac- bound to take any active steps: cording to the later cases under the Aaron's Reefs v. Twiss [1896] A. C. present Companies Act; but here the 273, 65 L. J. P. C. 54. point was hardly made. {y) (1867) E. B. & E. at p. 152. (.T) Which course was accordingly («) L. R. 1 Sc. & D. 145. taken with success: Clarke v. Dicit- (o) It would seem, but it does not son (1859) 6 C. B. N. S. 453, 28 L. J. clearly appear, that in this case also C. P. 225. These principles do not the misrepresentations were not dis- apply where a shareholder, having covered till after the commencement had his shares forfeited for non-pay- of the winding-up. ment of calls, and thereby ceased to (6) Wnddell v. Blocker/ (1879) 4 be a member of the company, is sued Q. B. Div. 678, 683. 48 L. J. Q. B. for the calls in arrear and defends 517. per Thesiger L.J. on the ground of fraud. After he is 39 But see contra, Adam r. Newbigging, 13 A. C. 308; Neblett r. Macfarland, 92 U. S. 101 ; Whitcomb v. Denio, 52 Vt. 382. WHERE RESTITUTION IMPOSSIBLE. 715 •exercising acts of ownership or the like, in sucli a manner as to make restitution impossible; and it is still plainer if he goes on doing this with knowledge of all the facts; if the lessee of mines, for example, goes on working out the mines after he has full information of the circumstances on which he relies as entitling him to set aside the lease (c)."**^ So a settlement of partnership accounts or a release con- tained in a deed of dissolution (tZ) cannot be disputed by one of the parties if in the meantime the concern has been completely wound up and he has taken possession of and sold the partnership assets made over to him under the arrangement (c) ; and an arrangement between .a company and one of its directors which has been acted upon by the company so as to change the director's position cannot afterwards be repudiated by the company (f). So a purchaser cannot after taking possession maintain an ?ction to recover back his deposit (g). The right to recover l)ack money paid under an agreement on the ground of mistake, failure of consideration, or default of the other ^arty is also subject to the same rule.^^ Thus a lessee who has entered into possession cannot recover back the premium paid by him on the ^Tound of the lessor's default in executing the lease and doing re- pairs *to be done by him under the agreement (/;) : nor can a [586 party recover back an excessive payment after his own dealings have made it impossible to ascertain what was really due (0- C. No rescission against innocent purchasers for value. The contract cannot be rescinded after third persons have acquired rights under it for value. (c) Vigers v. Pike (1840-2) 8 CI. (g) Blackburn v. Smith (1848) 2 A F. 562. 650. Ex. 783, 18 L. J. Ex. 187 ; but it was id) Urqiihart v. Macpherson also held that apart from tliis the (1878) 3 App. Ca. 831. objection came too late under the (e) Skilbeck v. Hilton (1866) L. conditions of sale in the particular R. 2 Eq. 587. case. if) Sheffield Nickel Co. v. Unwi7i (h) Hunt V. Silk (1804) 5 East (1877) 2 Q. B. D. 214, 46 L. J. Q. B. 449, 7 R. R. 739. 299. (i) Freeman v. Jeffries (1809) L. R. 4 Ex. 189, 197, 38 L. J. Ex. 116. 40 Hough V. Richardson, 3 Story, 659, 699 ; Bement r. La Dow, 66 Fed. Rep. 185; Lockwood v. Fitts, 90 Ala. 150; Rigdon v. Walcott, 141 111. 649; ShaeflFer r. Sleade, 7 Blackf. 178: Watson Coal, etc., Co. r. Casteel, 68 Ind. 476; McCulloch v. Scott, 13 B. Mon. 172; Handforth r. Jackson, 150 Mass. 149; Marshall v. Oilman, 47 Minn. 131; SchiflFer v. Dietz, 83 N. Y. ,300; Precious Blood Soc. r. Elsythe, 102 Tenn. 40; McCrillis v. Carlton, 37 Vt. 139. An unsuccessful attempt by a defrauded purchaser to sell the property to a third person was held not to destroy the right to rescind in Hoyle r. Southern Works. 105 Ga. 123. 41 Chance r. Board of Commissioners, 5 Blackf. 441; Reed r. McGrev/, 5 •Ohio, 375; Fay r. Oliver, 20 Vt. 118. 716 THE EIGHT OF EESCISSIOX. The present rule is altogether, as the last one is to some extent, a corollary from the main principle that a contract induced by fraud or misrepresentation is as such not void but only voidable. The result is that when third persons have acquired rights under the transaction in good faith and for value, those rights are indefeasible. The rule is also stated to be an application of the principle of convenience " that ■u-here one of two innocent parties must suffer from the fraud of a third, the loss should fall on the one who enabled the third party to commit the fraud " (1-). Fraudulent sales. Thus when a sale of goods is procured by fraud, the property in the goods is transferred by the contract (/),^^ subject as between the seller and the buyer to be revested by the seller exer- cising his option to rescind when he discovers the fraud. A purchaser in good faith from the fraudulent buyer acquires an indefeasible title (m)^-"^ now confirmed by the Sale of Goods Act, 1893, which (k) Baicock v. Laicson (1880) 4 when they elected to rescind und de- Q. B. D. at p. 400. manded the goods from the assig- (l) Load\. Green (1846) 1.3 M. & necs. W. 216, 1.5 L. J. Ex. 113; where it (m; White v. Garden (1851) 10 was held that a fraudulent buyer be- C. B. 919, 20 L. J. C. P. 167; Hteven- coniing bankrupt had not the goods son v. \eirnhftm (18.t3) (Ex. Ch.) l.'J in his order and disposition with the C. B. 28.5, 303, 22 L. J. C. P. 110, consent of the true owner; for the 11.5: cp. 12 App. Ca. at p. 483. vendors became the true owners only 42 Rowley r. Bigelow. 12 Pick. 307: Whitman v. Merrill, 125 Mass. 127; Barnard r. Campbell, 58 X. Y. 73, 75 ; Powers v. Benedict, 88 X. Y. 605, 609 ; Zoeller v. Rilev, 100 X. Y. 102; ^Yise r. Grant, 140 X. Y. 593; Kellogg v. State, 26 Ohio"^ St. 15, 18; Schwartz r. McCloskey, 156 Pa. 258; Fleming f. Hanlev, 21 R. I. 141: Arendale r. Morgan. 5 Sneed. 703. 714: Williams V. Givenlo Graft. 268; Steamship Co. r. Burckhardt, 31 Graft. 064. And see cases in the following note. 43 Robinson v. Leir, 81 Ala. 134: Williamson r. Russeil, 39 Conn. 406; Hears v. Waples, 3 Houst. 581; 4 Houst. 62; Kern r. Thurber, 57 Ga. 172; Railroad Co. v. Kerr, 49 111. 458; Titcomb v. Wood, 38 Me. 561; Hill r. Hinks, 21 :Md. 406; Lee v. Portwood, 41 Miss. 109; Porell r. Cavanaugh, 69 X. H. 364: Padden r. Taylor. 44 X. Y. 371: Sinclair r. Healy, 40 Pa. 417; Dettra v. Kestner, 147 Pa. 566; Singer Mfg. Co. r. Sammons, 49 Wis. 316; Arnett v. Cloudas, 4 Dana, 300; Attenborough v. St. Katharine's Dock Co., 3 C. P. D. 450 ; and cases cited in last note. An attaching creditor of the fraudulent buyer cannot hold the goods as against the seller exercising his right of rescission. Thompson r. Rose. 16 Conn. 71; Landauer v. Cochran, 54 Ga. 533; Schweizer v. Tracy, 76 111. 345; Oswego Starch Factory r. Lendrum, 57 la. 573; Hawes r. Dingley, 17 Me. 341 ; .Jordan r. Parker, 56 Me. 557 ; Tarr r. Smith, 68 Me. 97 ; Wiggins r. Day, 9 Grav, 97; Goodwin r. ]Mass. Trust Co., 152 Mass. 189, 199; Bradley i\ bbear. 10 X. H. 477: Field r. Stearns, 42 Vt. 106. See Sargent r. Sturm, 23 Cal. 359. Cp. Van Duzor r. Allen. 90 111. 499. In this country it is generally held that one who receives property from a fraudulent buyer in payment of a precedent debt is not a bona fide pur- chaser for value, and cnnot hold the property as against the defrauded seller. Commerrinl Bank r. Pir'e. 82 Fed. Rep. 799 (C. C. A.); Loeb r. Flash, 65 Ala. 526; Adam, etc., Co. r. Stewart, 157 Ind. 678; Henderson v. RIGHTS OF THIRD PERSONS. 717 aLolished a statutory exception (»). And a person who takes with *notice of the fraud is a lawful possessor as against third [587 23ersons, and as such is entitled to sue them for all injuries to the property, unless and until the party defrauded exercises his right of rescission (o). The sarae rules hold good as to possession or other partial interests in property. A. sells goods to B., 1)ut resumes the possession, by arrangement with B., as a security for the price. Afterwards B. in- duces A. to re-deliver possession of the goods to him by a fraudulent misrepresentation, and thereupon pledges the goods to C, who ad- vances money upon them in good faith and in ignorance of the fraud. This pledge is valid, and C. is entitled to the possession of the goods as against A. (/j ).■*■* (n) 24 & 25 Vict. c. 9G, s. 100, ex- (1878) 4 Q. B. D. 32, 48 L. J. Q. B. tended the re-vesting of projoerty in 12.5 ; the Sale of Goods Acts, s. 24, the true owner upon the thief's con- restores the older law. viction to cases of obtaining goods by (o) Stevenso)i v. Newitham, see criminal fraud not amounting to note (m) , last page, larceny: Bcntley v. Yilmont (1887) (p) Pease \. Gloahec (1866) L. R. 12 App. Ca. 471, .57 L. J. Q. B. 18, 1 P. C. 219, 3.5 L. J. P. C. 66. The overruling Moyce v. Newington dealings were in fact with the bill of Gibbs, 39 Kan. 679; Plurd r. Bickford, 85 Me. 217; Schloss v. Feltus. 103 Mich. 525 ; Case Works r. Ross, 74 Mo. App. 437 ; Sleeper v. Davis, 64 X. H. 59; Stevens c. Brennan, 79 X. Y. 254; Eaton v. Davidson. 46 Ohio St. 355; Wheeling, etc., Co. v. Koontz, 61 Ohio St. 551; Belleville Works v. Samuelson, 16 Utah, 234; Woonsocket Rubber Co. r. Loewenberg, 17 Wash. 29. And see Barnard r. Campbell, 58 X. Y. 73; Devoe f. Brandt, 53 X. Y. 462; Johnson r. Peck, 1 Woodb. & M. 334. Cp. Rodgers r. Comptoir d'Eseomte, L. R. 2 P. C. 393; Loeb v. Peters, 63 Ala. 243. Contra, Butters i: Haughwout, 42 111. 18; Horton v. Williams. 21 Minn. 187; Shufeldt r. Pease, 16 Wis. 659. Cp. Leask v. Scott, 2 Q. B. D. 376; Lee r. Kimball, 45 Me. 172; Skilling r. Bollman, 73 Mo. 665; Shepard, etc., Co. r. Burroughs, 62 X. J. L. 469. A transfer as security for an antecedent obligation is. a fortiori, not a transfer for value. Reid r. Bird, 15 Col. App. 116: Dinkier r. Potts, 90 Ga. 103; ilashburn r. Donnenberg Co.. 117 Ga. 567; Adam v. Meldrum, 157 Ind. C78; Cox Shoe Co, v. Adams, 105 la. 402; Phelps v. Samson, 113 la. 145; Goodwin r. Mass. Trust Co., 152 :Mass. 189; McGraw r. Solomon, 83 Mich. 442 ; Edson r. Hudson, 83 Mich. 450 : Bronson Electric Co. v. Rheubottom, 122 Mich. 608; Kemper, etc., Co. v. Kidder Bank, 81 Mo. App. 280; Phoenix Co. r. McEvonv. 47 Xeb. 228; Charles P. Kellogg Co. r. Horkev, 61 Xeb. 751; Tate r. Security Trust Co., 63 X. J. Eq. 559 : Button r. Rathbone, 126 X. Y. 187. 192. But'see contra. Chapman V. Hughes. 134 Cal. 641, 658; Knox v. JMcFarran, 4 Col. 586, 596: Kranert r. Simon, 65 111. 344. A transfer of negotiable paper in payment of or security for an antecedent debt must be distinguished from such a transfer of other property. A transfer of a bill or note in payment of an antecedent debt is by the weight of authority a transfer for value. 1 Ames Cas. B. & X. 650 n., and it is so provided m the Xegotiable Instruments Law. Crawford. Xeg. Inst. Law, § 51. On the ether hand a transfer to secure a pre-existing debt was more often held not a transfer for value. 1 Ames Cas. B. & X. 650. n., but this also by the Xegoti;ible Instruments Law is made value. Crawford, Xeg. Inst. Law. § 51. 44 The reason why the pledge to C. was valid was because B. had not only possession but title to the goods. Mere possession, whether procured with or without fraud, under a contract or without a contract, cannot enable the 718 THE EIGHT OF EESCISSIOX. Distinction where there is no contract, but goods are merely obtained by fraudulent pretences. It must be carefully observed tliat a fraudulent possessor cannot give a better title than he has himself, even to an innocent purchaser, if the possession has not been obtained under a contract with the true owner, Init by mere false pretences as to some matter of fact concerning the true owner's contract with a third person. To put a simple case, A. sells goods to B. and desires B. to send for them. C. obtains the goods from A. by falsely representing^ himself as B.'s servant: now C. acquires neither property nor lawful possession, and cannot make any sale or pledge of the goods which will be valid against A., though the person advancing his money have no notice of the fraud. The result is the same if A, means to sell goods to B. & Co., and C. gets goods from A. by falsely representing himself as a member of the firm and authorized to act for them {q),^^ or if B., a person of no credit, gets goods from A. l)y trading under a name and 588] address closely resembling *those of C, who is known to A. as a respectable trader (r).^*^ It is also the same in the less simple case of a third person obtaining delivery of the goods by falsely representing- himself as a sub-purchaser; for here there is no contract between him and the seller which the seller can affirm or disaffirm ; what the< seller does is to act on the mistaken notion that the property is already his by transfer from the original buyer. This was in effect the decision lading; but as this completely repre- (r) Cundy v. Lindsay (1378) 3 sented the goods for the purposes of App. Ca. 459, 47 L. J. Q. 13. 481. the case the statement in the text is Otherwise wliere the fraud stops, simplified in order to bring out the sliort of personation, and is only a general principle more clearly. A false representation of the party's l.Tter case of the same kind is BuJ)- condition and means: Attenborough cod: v. Lau-son (1880) 5 Q. B. Div. v. tit. Katharine's Dock Co. (1878) .? 284, 49 L. J. Q. B. 408. C. P. Div. 450, 47 L. J. Ch. 763 ; cp. (q) Hardman v. Booth (1803) 1 Edmunds v. Merchants' Despatch Co. H. & C. 803, 32 L. J. Ex. 105 ; Hoi- 135 Mass. 283, which goes fartlier. tins v. Foicler (1874-5) L. R. 7 H. L. 757, 795. possessor to give any right to an innocent third person, which will be good against the true owner, except where on principles of agency or under factors'' acts or by the law governing negotiable paper, the possessor is given such an apparent power of disposition of the property as to bind the true owner. When a watchmaker obtains possession of a watch under a contract to clean it, he cannot make a valid pledge of it. See Baehr p. Clark, 83 la. 313; National Bank v. Chicago, etc., R. Co., 44 j\Iinn. 224 ; Heilbronn v. McAleenan,. 1 N. Y. Supp. 875; Rohrbough r. Leopold, 08 Tex. 254. 45 See Alexander V. Swackhamer, 105 Ind. 81; Peters Co. v. Lesh, 119 Ind. 98; Moodv r. Blake, 117 Mass. 23; Edmunds r. Merchants' Despatch Co., 13r> Mass. 28.3: Hentz r. Miller, 94 N. Y. 64; Hamet v. Letcher, 37 Ohio St. 356; Decan v. Shipper, 35 Pa. 239; Barker v. Dinsmore, 72 Pa. 427; supra^ p. 592. 46 See Samuel r. Cheney, 135 Mass. 278. REPUDIATIOX OF SHARES. 719 of the Exchequer Chamber in Kingsford v. Merry (s),'^'^ though the ir.se was a little complicated by the special consideration of the effect of delivery orders or warrants as " indicia of title." Shareholder can't repudiate after winding up: Oakes v. Turquand. The decision of the House of Lords in Oakes v. 'Tu7'quand {t), which settled that a shareholder in a company cannot repudiate his shares after the commencement of a winding-up, proceeded to a considerable extent upon the language of the Companies Act, 1862, in the section defining who shall be contributories. But the broad principles of the decision, or if we prefer to say so, of the Act as interpreted by it, are these. The rights of the company's creditors and of the shareholders are fixed at the date of the winding-up and are not to be afterwards varied. The creditors are entitled to look for payment in the first instance to all persons who are actually members of the company at the date of the winding-up. And this class includes shareholders who were entitled as against the company to repudiate their shares on the ground of fraud, but have not yet done so. For their ol)ligations under their contracts with the company, including the duty to *contrilnite [589 in the winding-up, were valid until rescinded, and the creditors in the winding-up must be considered as being, to the extent of their claims, purchasers for vahie of the company's rights against its members. They are not entitled to any different or greater rights : no share- holder can be called upon to do more than perform his contract with the company («).^* is) (1856) 1 H. & N. 503, 26 L. (;/) Waterhouse v. Jamieson J. Fx. 83 (see per Erie J. at p. 88, (1870) L. R. 2 Sc. & D. 29. Tn Hall revg. s, c. in Court below, 11, 577, 25 v. Old Talargoch Lead Mining Co. L. J. Ex. 166. (1876) 3 Ch. D. 749, 45 L. J. Ch. (t) (1867) L. R. 2 H. L. 325, 36 775, an action for rescission and in- L. J. Ch. 949. This principle applies deninity commenced by a shareholder to a voluntary as well as a compul- after a resolution for winding-up but sory winding-up: tStone v. City and in ignorance of it was allowed to pro- Countif Bank (1877) 3 C. P. Div. ceed. Here however relief was 282, 47 L. J. C. P. 681. claimed against the directors |>erson- ally as well as the company. 47 See Henderson r. Williams, ['1895] 1 Q. B. 521; Farquharson r. King, [1901] 2 K. B. 697; Collins v. Ralli, 20 Hun, 246, affd., 85 N. Y. 637; Soltau V. Gerdau, 119 N. Y. 380. 48 Cp. Banigan v. Bard, 134 U. 8. 291; Lantry r. Wallace, 182 U. S. 53(i ; Republic Ins. Co. v. Swigert, 135 111. 150. In this country an agreement between a company and shareholders that shares not fully paid up shall be considered as paid-up shares, though binding on the company, is a fraud in law on its creditors, who, when their claims are to be satisfied, may require the shareholders to pav for their shares in full. Scovill p. Thayer, 105 U. S. 145, 154; Insurance Co. r. Frear Stone Mf4. 158; McPherson t\ Cox, 86 N. Y. 472. 479; Sasportas r. .Jennings, 1 Bav. 470: Collins r. \\e^thur\\ 2 Bay, 211; Walker r. Parker, 5 Coldw. 476: Miller V. ^Miller, 68 Pa. 486. ' 4 See Hackley v. Headley, 45 Mich. 569; Cable V. Foley, 45 Minn. 421: Hey ^am r. Dettre, 89 Pa. 506. Dt/RESS. 729 doth make the deed,^ or his wife" (h),^ or (it seems) parent or child {e)J And a threat of imprisonment is not duress unle.-5s tae imprisonment would be unlawful.^ (6) Shepp. Touch. Gl. (e) Ro. Ab. 1. GST, pi. 5; Bac. Ab. Duress (B). 5 Duress to the principal will not avoid the obligation of a surety. Hazard V. Griswold, 21 Fed. Rep. 178; McClintick v. Cummins, 3 McLean, 158; Graham v. Marks, 98 Ga. 67; Plummer r. People, 16 111. 358; Oak v. Dustin, 79 Me. 23; Fairbanks i\ Snow, 145 Mass. 153; Robinson V. Gould, 11 Cush. 55 ; Bowman r. Hiller, 130 Mass. 153 ; Spaulding r. Crawford, 27 Tex. 155. At least, unless the surety, at the time of executing the obligation, is ignorant of the circumstances which render it voidable by the principal. Patterson r. Gibson. 81 Ga. 802; Griffith v. Sitgi-eaves, 90 Pa. 161. But see Hvatt r. Robinson, 15 Ohio, 372, 400; Ames, Cas. Suretyship, 125, n. 9; 315, n." 1. 6 Shepp. Touch. 61; McClintick r. Cummins, 3 McLean, 158, 159; Plum- mer !•. People, 16 111. 358, 360 ; and duress to the husband makes voidable the wife's obligation. Brooks v. Berryhill, 20 Ind. 97; Bank v. Bryan, 62 la. 42; Heaton v. Norton Co. Bank, 59 Kan. 281; State Bank r. Hutchinson, 62 Kan. 9; City Bank v. Kusworm. 88 Wis. 188. The threat made by a husband, through the procurement of one of the payees of a note executed by him, that unless his wife would sign it, he would poison himself, whereby she was induced to sign it, does not amount to duress, since " the maker and object of the threats were the same." Wright c. Remington, 41 N. J. L. 48; affd.. nom. Remington r. Wright, 43 X. J. L. 451. And see Insurance Co. r. Meeker, 85 N. Y. 614; Girty v. Standard Oil Co., 1 N. Y. App. Div. 224. It has been held that a deed executed by a woman in consequence of threats by her husband to abandon her if slie refused, to one who has notice of the means used to procure it, is voidable for duress. Line v. Blizzard, 70 Ind. 23; Berrv r. Berrv, 57 Kan. 691; Tapley v. Tapley, 10 Minn. 448; Kocourek t\ Marak. 54 Tex! 201; Schultz r. Catlin, 78 Wis. Gil. Unless the grantee or promisee had notice of the duress, the wife would be bound. Gardner v. Case, 111 Ind. 494; Fightmaster r. Levi. 13 Ky. L. Rep. 412; Fairbanks v. Snow, 145 ]\Iass. 153. These are properly cases not of duress, but of undue influence. See Detroit Bank v. Blodgett, 115 Mich. 160; Adams r. Irving Bank, 116 N. Y. 606, 611. 7 Harris r. Carmody, 131 Mass. 51: Weiser v. Welch, 112 Mich. 134; Osborn r. Bobbins, 36 JST. Y. 365, 372 ; Owens v. Mynatt, 1 Heisk. 675 ; Schultz r. Culberlson, 46 Wis. 313; 49 Wis. 122. See further as to duress by threats to injure a relative, 26 L. R. A., n. 48. 8 Eddy V. Herrin, 17 ]Me. 338; Harmon r. Harmon, 61 Me. 227; Hilborn r. Buckman. 78 ]Me. 482; Cribbs r. Sowle, 87 Mich. 340; Sanford v. Sorn- borger, 26 Neb. 295; McCormick Co. v. Miller, 54 Xeb. 644: Alexander v. Pierce, 10 N. H. 494; Bodine v. Morgan, 37 N. J. Eq. 426; Clark v. Turn- bull, 47 X. J. L. 265; Dunham v. Griswold, 100 X. Y. 224; Landa r. Obert, 45 Tex. 539, 548. Cp. Obert r. Landa, 59 Tex. 475. But see iufra, p. *614, cases in note 46. Threats of suit do not constitute duress. Atkinson r. Allen, 71 Fed. Rep. 58: Morton r. Morris, 72 Fed. Rep. 392: McClair r. Wilson. 18 Col. 82: Parker r. Lancaster, 84 Me. 512; Minneapolis Land Co. r. McMillan, 79 Minn. 287; Jones V. Houghton, 61 X. H. 51: York v. Hinkle, 80 Wis. 624. Lawful imprisonment or detention of the person does not itself constitute duress. lb.: Plant v. Gunton, 94 U. S. 664: Smith r. Atwood, 14 Ga. 402: Jones r. Peterson, 117 Ga. 58; Taylor r. Cottrell, 16 111. 93; Heaps r. Dun- ham, 95 111. 583; Xeally V. Greenough, 25 N. H. 325. But "where there is an arrest for an improper purpose without just cause, or where there is an arrest for a just cause, but without lawful authority, or for a just cause, but for an unlawful purpose, ... in either of those events the party arrested, if he was thereby induced to enter into a contract, may avoid it as one procured by duress." Baker r. ^Morton, 12 Wall. 150, 158; ^Morrill v. 730 DURESS AXD UNDUE INFLUENCE. In a case of menace the threat must be of something unlawful. This is illustrated by two rather curious modern cases, iu both of which the party's consent was determined by the fear of confinement in a lunatic asylum. In Cumming v. Ince (f) the plaintiff had been taken to a lunatic asylum and deprived of the title deeds of certain property claimed by her. Proceedings were commenced under a commission of lunacy, but stayed on the terms of an arrangement signed by counsel on both sides, under which the deeds were to be deposited in certain custody. The plaintiff afterwards repudiated this arrange- ment and brought detinue for the deeds. On an issue directed to try the right to the possession of the deeds as between herself and the other parties the Court held that in any view the defendants were ■wrong. For if their own proceedings under the commission were justified, they could not say the plaintiff was competent to bind her- self, and if not, the agreement was obtained by the fear of a merely unlawful imprisonment and therefore voidable on the ground of 598] duress. And it made no difference that *the plaintiff's counsel ■was party to the arrangement. His assent must be considered as enforced by the same duress: for as her agent he might well have feared for her the same evils that she feared for herself. In Biffin X. Bignell (h), on the other hand, the defendant was sued for neces- saries supplied to his wife. She had heen in a lunatic asylum under treatment for delirium tremens, and on her discharge the husband promised her 12s. a week to live apart from him, adding that if she vrould not he would send her to another asylum. The wife was ac- cordingly living apart from the husband under this agreement. It ■R-as held that her consent to it w^as not obtained by duress, for under these circumstances " the threat, if any, was not of anything con- trary to law, at least not so to be understood " : consequently the presumption of authority to pledge the husband's credit was effectually excluded, and the plaintiff could not recover (i). Money paid under circumstances of compulsion recoverable back. The narrowness of the common law doctrines above stated is considerably if) (1847-8) 11 Q. B. 112, 17 L. J. (0 Qu. whether in any case he Q. B. 10.5. could have recovered without show- ih) (18G2) 7 H. & X. 877, 31 L. J. ing that the wife had repudiated the Ex. 189. arrangement. Nightingale, 93 Cal. 452; Schommer r. Farwell, ,56 111. 542; Bane r. Detricl<, 52 111. 19; Rollins v. Lashus, 74 Me. 218; Watkins r. Baird, 6 Mass. 30(i ; Hackett v. King. G Allen, 58; Sweet v. Kimball, 166 Mass. 332; Seiber r. Price, 26 Mich. 518; Fossett V. \Yilson, 59 Miss. 1; Breck r. Blanchard, 22 N. H. 303, 310; Clark r. Pease, 41 N. H. 414; Osborn r. Bobbins, 36 N. Y. 365; Guilleaume r. Rowe. 94 N. Y. 268; Reinhard r. City, 49 Ohio St. 257, 270; Phelps r. Zuschlag, 34 Tex. 371; Behl v. Schuett, 104 Wis. 76. PAYMENT UNDER COMPULSION. 731 mitigated in practice, for when money has been paid under circum- stances of practical compulsion, though not amounting to duress, it can generally be recovered back. This is so when the payment is made to obtain the possession of property wrongfully detained (k) f and the property need not be goods for which the owner has an immediate pressing necessity, nor need the claim of the party de- taining them be manifestly groundless, to make the payment for this purpose involuntary in contemplation of law (/). So it is where excessive fees are taken nnder colour of office, though it be usual to pay them (m) ;^^ or where an excessive charge for the performance of a duty is *paid under protest (w).^^ The person who actually [599 receives the money may properly be sued, though he receive it only as an agent (o).^^ The case of one creditor exacting a fraudulent (k) Wakefield V. Xeichon (1844) G Williams (1853) 8 Ex. G25, 22 L. J. Q. B. 27G. 280, 13 L. J. Q. B. 258 ; Ex. 225. Hreen v. Duckett (1883) 11 Q. B. D. (n) Parker v. G. W. Ry. Co. (1844) 275. 52 L. J. Q. B. 435. 7 M. & Gr. 253. 292, 13 L. J. C. P. (l) i^haw V. Woodcock (1827) 7 B. 105. And see other authorities col- & C. 73, 31 R. R. 158. lected in notes to Marriot v. Havip- (m) Dew V. Parsons (1819) 2 B. ton (1796) 2 Sm. L. C. 409. & Aid. 562, 21 R. R. 404; Steele v. (o) Steele v. Williams, note (m), last page. 9 Elliott V. Swartwout, 10 Pet. 137; Maxwell r. Griswold, 10 How. 242; Lonergan r. Buford, 148 U. S. 581; Tutt r. Ide. 3 Blatchf. 249; Adams v. Schiffer, 11 Col. 15; Cobb v. Charter, 32 Conn. 358; Railroad Co. r. Pattison, 41 Ind. 312; Chase V. Dwinal, 7 Me. 134; Chandler r. Sanger, 114 Mass. 364; Hackley r. Headley, 45 Mich. 569, 575; Dykes r. Wyinan, 67 Mich. 236; Fargusson r. Winslow, 34 ^linn. 384 ; Clinton v. Strong, 9 Johns. 370 ; Har- mony r. Bingham, 12 N. Y. 99; Briggs r. Boyd. 50 N. Y. 289; Scholey r. Mumford, GO N. Y. 498; Baldwin r. Liverpool, "etc., Co., 74 N. Y. 125; Motz r. ^Mitchell. 91 Pa. 114; Alston v. Durant, 2 Strobh. 257; Beckwith v. Fris- bie, 32 Vt. 559. Cp. De la Cuesta r. Insurance Co., 136 Pa. 62. Money, which he is under no legal liability to pay, obtained from a master mechanic whose business requires tlie employment of workmen, by inducing or threatening to induce workmen to leave his employ, and deterring or threatening to deter others from entering it, so as to render him reasonably apprehensive that he cannot carry on business without making the payment, may be recovered back. Carew /". Rutherford, 106 Mass. 1. 10 " Whenever a person is compelled to pay a ])ublic officer, in order to induce him to do his duty, fees whicli he had no right to claim, they can be recovered back." Robinson r. Ezzell, 72 X. C. 231; Swift Co. r. United States, 111 U. S, 22; Robertson r. Frank Bros. Co., 1.32 U. S. 17; Ogden r. Maxwell, 3 Blatchf. 319; Magnolia r. Sharman, 46 Ark. 358; Cunningham V. Munroe, 15 Gray, 471; Westlake v. St. Louis, 77 Mo. 47; Amer. Steamship Co. r. Young, 89 Pa. 186. 11 Railway Co. r. Steiner, Gl Ala. 559, 595: Railroad Co. r. C. V. & W. Coal Co., 79 111. 121; Heiserman r. Railroad Co., 63 Ta. 732: Panton r. Duluth Water Co., 50 Minn. 175; Peters r. Railroad Co., 42 Ohio St. 275. Cp. Potomac Coal Co. r. Railroad Co.. 38 Md. 226; Killmer r. Xew York Central R. Co.. 100 N. Y. 395; Kenneth r. Railroad Co.. 15 Rich. L. 284. 12 Elliott r. Swartwout. 10 Pet. 138; Oeden r. Maxwell, 9 Blatch. 319; Carew r. Rutherford. lOG Mass. 1 ; First Bank r. Watkins, 21 Mich. 483, 489 : Bocchino V. Cook, 67 N. J. L. 467. ■;32 DURESS AND UNDUE INFLUENCE, preference from a debtor as the price of his assent to a composi- tion (p) is to a certain extent analogous. But on the ground not of coercion in itself but of failure of consideration. But in all these cases the foundation of the right to recover back the money is not the involuntary character of the payment in itself, l)ut the fact that the party receiving it did no more than he was bound to do already, or something for which it was unlawful to take money if he chose to do it, though he had his choice in the first instance. Such payments are thus regarded as made without con- sideration. The legal effect of their being practically invohmtary, though important, comes in the second place; the circumstances explain and excuse the conduct of the party making the payment. Similarly in the kindred case of a payment under mistake the actual foundation of the right is a failure of consideration, and ignorance of material facts accounts for the payment having been made. The common principle is that if a man chooses to give away his money, or to take his chance whether he is giving it away or not, he cannot afterwards change his mind; but it is open to him to show that he supposed the facts to be otherwise or that he really had no choice. ^^ The difference between the right to recover money back under circumstances of this kind and the right to rescind a contract on the ground of coercion is further shown by this, that an excessive payment is not the less recoverable if both parties honestly supposed it to be the proper payment (q). We therefore dwell no farther on this topic, but proceed to consider the more extensive doctrines of equity. 600] *n. The equitable doctrine of Undue Influence. The equitable doctrine. In equity there is no rule defining inflexibly what kind or amount of compulsion shall be sufficient ground for avoiding a transaction, whether by way of agreement or by way of gift. The question to be decided in each case is whether the party was a free and voluntary agent (r). Any influence brought to bear upon a person entering into an agreement, or consenting to a disposal of property, which, having regard to the age and capacity of the party, the nature of the trans- (/)) Atl-insonv. Denhy (1861) 6 H. (7) Dm: v. Parsons (1819) 2 B. & 6 X. 778, 30 L. J. Ex. 301. in Ex. Ch. Aid. .502. 21 R. R. 404. 7 ib. 934, 31 L. J. Ex. 362. Supra, {r) Williams v. Baijley (ISOfi) L. Ch. VII. p. *38.5. R. 1 H. L. 200, 210, 35 L. J. Ch. 717. 13 Swift Co. r. United States. Ill U. S. 22, 30; Peter.? v. Railroad Co., 42 Ohio St. 275, 285 (quoting text). DOCTRINE OF UNDUE INFLUENCE. 7oi> action, and all the circumstances of the case, appears to have been such as to preclude the exercise of free and deliberate judgment, is considered by courts of equity to be undue influence, and is a ground for setting aside the act procured by its employment. Generality of the principle. " The principle applies to every case where influence is acquired and abused, where confidence is reposed and betra3^ed" (s)}'^ Such cases are thus classified by Cotton L.J. *' First, where the Court has been satisfied that the gift was the re- sult of influence expressly used by the donee for the purpose; second, where the relations between the donor and donee have at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor. In such a case the Court sets aside the volvintary gift, unless it is proved that in fact the gift was the spontaneous act of the donor acting under cir- cumstances which enabled him to exercise an independent will and which justifies the Court in holding that the gift was the result of a free exercise of the donor's will. The first class of cases may be considered as depending on the principle that no one shall be allowed to retain any benefit arising from his own fraud or wrongful act. In the second class of cases the Court interferes, not on the ground that any wrongful act has in fact been *committed [601 by the donee, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising therefrom being abused" (t). Yet in many cases of the second class tile circumstances might, if they could be fully brought out, amount to proof of actual compulsion or fraud (w) ; so that it may perhaps be said that undue influence means an influence in the nature of compulsion or fraud, the exercise of which in the particular instance to determine the will of the one party to the advantage of the other is not specifically proved, but is inferred from an existing relation of .dominion on the one part and submission on the other (x). Given a (s) Per Lord Kingsdown, Smith v. said tliat, taking the words in a wide Kay (1859) 7 H. L. C. at p. 779. sense, all undue influence may be re- (t) Allcard v. Skinner (1887) 30 solved into coercion and fraud; but Ch. Div. 145, 171, 50 L. J. Ch. 1052. the case there considered is that of a (m) Cp. per Lindley L.J. 30 Ch. will, in which undue influence has a Div. at p. 183. more restricted meaning than in {x) In Boyse v. Rossioroiigh transactions iH/er rtros.- see note (0, (1856-7) 6 H. L. C. at p. 48, it "is p. * 603, infra. 14 See Zimmerman r. Bitner, 79 Md. 115; Munson r. Carter, 19 Neb. 293; Pisher v. Bishop, 108 N. Y. 25; Long v. Mulford, 17 Ohio St. 484, 504, 505; Fishburne v. Ferguson, 85 Va. 321; infra, p. 730. 734 DURESS AND UNDUE INFLUENCE. position of goncral and habitual infliioncej its exercise in the particu- lar case is presumed. General influence presumed from certain relations. But again, this ha* hitual influence may itself be presumed to exist as a natural conse- quence of the condition of the parties, though it be not actually proved that the one habitually acted as if under the domination of the other. There are many relations of common occurrence in life from which " the Court presumes confidence put " in the general course of affairs " and influence exerted " in the particular transaction complained of {y). Persons may therefore not only be proved by direct evidence of con- duct, but presumed by reason of standing in any of these suspected relations, as they may be called, to be in a position of commanding influence over those from whom they take a benefit. In either case they are called upon to rebut the presumption that the particular benefit was procured by the exertion of that influence, and was not 602] given with due freedom and deliberation. They *must "take upon themselves the whole proof that the thing is righteous" (z). A stringent rule of evidence is imposed as a safeguard against evasions of the substantive law. " Wherever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availintj liiniself of his position will not be permitted to retain the advantage, althouoh the transaction could not have been impeached if no such confidential relation had existed " (a) . " ]S[othing can be more important to maintain than the jurisdic- tion, long asserted and upheld by the Court, in watching over and pro- tecting those who are placed in a situation to require protection as against acts of those who have influence over them, by which acts the (y) Per Lord Kingsdown. l^mith r. Buzbv, 43 X. J. Eq. 154; Boisau- V. Kay (1859) 7 H. L. C. 750, 779. l)in r. Boisaubin. 51 N. J. Eq. 252; (z) Gibson v. Jeyes (1801) 6 Ves. ClaflTev r. Ledwith, 56 N. J. Eq. 333; 26G, 276, 5 R. R. 295, 303. The like Delafield v. Parish, 25 N. Y. 9, 35; burden of proof is cast upon those Matter of Will of Smith, 95 N. Y. who take any benefit under a will 516: Boyd r. Boyd, 66 Pa. St. 283; which they have themselves been in- Cuthbertson's Appeal, 97 Pa. St. 163; strumental in preparing or obtain- Wilson's Appeal, 99 Pa. St. 545 ; Rid- ing: Fulton V. Andreir (1875) L. R. dell v. Johnson, 26 Gratt. 152: Pat- 7 H. L. 448, 472, 44 L. J. P. 17. [See ton V. Allison. 7 Humph. 320: cp. Tvrell V. Painton, [1894] Prob. 151; Carter v. Dixon, 66 Ga. 82; Carpen- Keith t\ Kollam. 35 Fed. Rep. 243, ter v. Hatch. 64 N. H. 573; Post V. 246; Beall r. Mann. 5 Ga. 456; Adair iMason, 91 N. Y. 539.] r. Adair, 30 Ga. 102: Wood's Ex. r. (a) Per Lord Chelmsford, Tate v. Devers. 14 Ky. L. R. 81: Harvey r. Williamson (1866) L. R. 2 Ch. 55, Sullens, 46 Mo. 147; Waddington 61. COXFIDEXTIAL RELATIONS. 735 person having such influence obtains any benefit to himself. In such cases the Court has always regarded the transaction with jealousy "' (6) — a jealousy almost invincible, in Lord Eldon's words (c). " In equity, persons standing in certain relations to one another, such as parent and child (rf),!^ man and wife (c),!^ doctor and patient (/j,i7 (b) Lord Hatherley, Turner v. Col- (1846-8) 11 Beav. 227; showing that lins (1871) L. E. 7 Ch. 329, 338. there is a fiduciary relation between (c) Hatch V. Hatch, 9 Ves. at p. persons engaged to be married; and 296, 7 R. R. 197. Coulson v. Allison (1860) 2 D. F. J. {d) Archer v. Hudson (1844) 7 521, 524, the like as to persons living Beav. 551, 13 L. J. Ch. 380; Turner together as man and wife though not V. ro?Zn!S (1871) L. R. 7 Ch. 329, 41 lawfully married. In all these cases L. J. Ch. 558. the burden of proof was held to be on {e) Lord Hardwicke's remarks m the man (as holding under such cir- drighi/ v. Cox (1750) 1 Ves. sen. 517 cumstances a position of influence) (though not the decision, for it was to support tlie transaction. It may not a gift but a purchase, and ap- not be so however in a case of mere parenily there was no evidence to illicit intercourse: see Farmer v. bear out the charge of collusion). Farmer (1848) 1 H. L. C. 724, 752. and the decision in Xedhy v. Nedby (f) Dent v. Bennett (1839) 4 Mv. (1852), 5 De G. & Sm. 377, seem & Cr. 269, 48 R. R. 94; Aheanw V. contra; but see Cobbett v. Brock Hogan (1844) Dru. 310; s. v. Blackio (1855) 20 Beav. 524; Page v. Home v. Clark (1852) 15 Beav. at p. 603. 15 See Powell r. Powell, [1900] 1 Ch. 243; Jenkins r. Pve, 12 Pet. 241; Taylor v. Taylor, 8 How. 1S3; Noble v. Moses, 81 Ala. 530"; Brown v. Bur- bank, 64 Cal. 99; Ewing r. Bass, 144 Ind. 1; Ashton r. Thompson. 32 Minn. 25; Miller r. Simonds, 72 Mo. 669: Berkmeyer V. Kellerman, 32 Ohio St. 239; Miskey's Appeal, 107 Pa. 618; Davis r. Strange's Exrs., 86 Va. 793. Cp. Towson V. Moore, 173 U. S. 17; Couchman's Adm'r. v. Couchman, 98 Kv. 109; Coleman's Est., 193 Pa. 605. 1*5 Rogers v. Marshall. 13 Fed. Rep. 60; Harrawav r. Harrawav. 130 Ala. 499; White r. Warren, 120 Cal. 322; Lewis v. McOl-ath, 191 111. 401 ; Ilgen- fritz r. Ilgenfritz, 116 Mo. 429; Ireland v. Ireland, 43 N. J. Eq. 311: Bovd r. De La Montagnie, 72 N. Y. 498, 502; Haack r. Weicken, 118 X. Y. 67,' 74; Darlington's Appeal, 86 Pa. 512; Wav r. Union Ins. Co., 61 S. C. 501. But see contra, Barron r. Willis, [1899] 2 Ch. 578; Daniels r. Benedict, 97 Fed. Rep. 307; Sheehan r. Sullivan, 126 Cal. 189; McDougall r. Perce, 135 Cal. 316; Hardy r. Van Harlingen, 7 Ohio St. 208; Ford r. Ford, 193 Pa. 530; Earle v. Chace, 12 R. I. 374. There is a fiduciary relation between persons engaged to be married. Hessick r. Hessick, 169 111. 486: Russell r. Russell, 60 X. J. Eq. 282; Pierce r. Pierce, 71 X. Y. 154; Graham r. Graham, 143 X. Y. 573; Kline r. Kline, 57 Pa. 120. And see Rockafellow r. Xewcomb, 57 111. 186, Avhere relief was given to the man. Where conveyances were made by a man to a woman with whom he was unlawfully cohabiting, it has been held that the onus of showing an absence of undue influence was on her. Shipman r. Furniss, 69 Ala. 555, 565 ; Leighton v. Orr, 44 Li. 679 ; Hanna r. Wilcox, 53 la. 547. And see Bivins r. Jarnigan, 59 Tenn. 282. The fact that the beneficiary under a will has been living in illicit relations with the testator does not create a presumption of law that the will was executed under undue influence. Monroe r. Barclav. 17 Ohio St. 302; Donnellv's Will, 68 la. 126; Waters r. Reed, 129 Mich. 'l31 ; Arnault r. Arnault. .52 X. J. Eq. 801; Re Mondorfs Will, 110 X. Y. 450; Rudv v. Ulrich, 09 Pa. 177; Main r. Ryder, 84 Pa. 217. 17 Kellogg r. Peddicord. 181 111. 22; C-idwallader r. West, 48 Mo. 483. 496; Bogie r. Xolan, 96 Mo. 85: Unruh v. Lukens, 166 Pa. 324; cp. Audenried's Appeal, 89 Pa. 114, 120, 121. 73G DURESS AND UNDUE INFLUENCE. 603] attorney "and client ig),^^ confessor and penitent,i9 guardian and ward (/i),20 are subject to certain presumptions wlien transactions between tlieni are brought in question ; and if a gift or contract made in favour of him Avho holds the position of influence is impeached by him who is subject to that intluence, the courts of equity cast upon the former the burthen of proving that the transaction was fairly conducted as if between strangers, that the weaker was not unduly impressed by the natural influence of the stronger, or the inexperienced overreached by him of more mature intelli- gence ■' (i) . (g) Oihson v. Jeyes (1801) 6 Ves. 266, 5 R. R. 295 ; Uolman v. Loynes (1854) 4 D. M. G. 270, 23 L. J. Ch. 529; Gresley v. Mousley (1861) 4 De G. & J. 78. 94. (h) Hatch V. Hatch (1804) 9 Ves. 297. 7 R. R. 195: Maitland v. Irvhig (1846) 15 Sim. 4.37. (t) Per Lord Penzance, Par fit t v. Lawless (1872) L. R. 2 P. & D. 402, 468, 41 L. J. P. 68. It is to be noted that this does not apply to wills [Daniel v. Hill, .52 Ala. 430, 442; Bancroft r. Otis, 91 Ala. 275: Bulger V. Ross, 98 Ala. 267 (cp. McQueen v. Wilson. 131 Ala. 606) : Tyson v. Ty- son's Exr's., 37 Md. 507. 583: Grif- fith V. DiflfenderiTer, 50 Md. 406. 483 ; He Sparks' Will. 63 N. J. Eq. 242: He :\Iurphv's Will. 48 X. Y. App. Div. 211; Matter of Will of Smith, 95 X. Y. 516; Lee v. Lee, 71 X. C. ]39; Herster r. Herster, 116 Pa. 612. But see contra, Morris v. Stoker. 21 Ga. 552. 575 ; Meek v. Perry, 36 Miss. 190, 252 : Garvin v. Williams, 44 Mo. 465, 477: Gay v. Gillilan. 92 Mo. 250: Marx r. McGlynn. 88 X. Y. 357, 371], as to which undue influence is never presumed : it. : Bouse v. Hoss- horonrjh (1856-7) 6 H. L. C. 2, 49; HiinUon v. WeatheriJl (1854) 5 D. M. & G. 301, 311. 313 [Barnes r. Barnes. 66 Me. 286, 297. 298 : Baldwin V. Parker, 99 Mass. 79; Cudney v. Cudney, 68 X. Y. 148] : though a disposition by will may be set aside as well as an act inter vivos when undue influence is actually proved ; but then, it seems, the influence must be such as to "■ overpower the voli- tion without convincing the judg- ment": Hall V. Hall (1868) L. R. 1 P. & D. 482. 37 L. J. P. 40. [See Conley v. Xailor, 118 U. S. 127; Bov- doin College r. Merritt. 75 Fed. Rep. 480, 493 ; He Xelson's Will, 39 Minn. 204; Re Snelling's Will, 136 X. Y. 515.] See Walker v. Smith (1861) 29 Beav. 394, where between the same parties gifts by will were supported and a gift iiiter vivos set aside. Lord Penzance added to the list of sus- pected relations that of promoters of a company to the company which is their creature: Erlanger v. Neio Sombrero Phosphate Co. (1877) 3 App. Ca. at p. 1230. But is not per- sonal confidence essential to make the present doctrine applicable? And has any case gone the length of casting on a promoter the burden of proving in the first instance that a contract between him and the company was a fair one? Cp. Edrji v. Hidsdale's Rail- vaif Lamp and lAqhtinq Co. (1889) 23 Q. B. Div. 308, 58 L.'j. Q. B. 579, where the duty is put on the ground of agency. 18 Barron r. Willis. [1900] 2 Ch. 121; United States v. Coffin, 83 Fed. Rep. 337; Yonge r. Hooper, 73 Ala. 119; Kisling r. Shaw, 33 Cal. 425; Jennings r. McConnell, 17 111. 148; Zeigler r. Hughes. 55 111. 288; Hughes r. Wilson, 128 Ind. 491: Ryan v. Ashton, 42 la. 365: Brigham r. Xe\\-ton, 49 La. Ann. 1539: Yeamans r. James, 27 Kan. 195. 207: Dunn r. Record. 63 Me. 17; Burnham v. Heselton. 84 Me. 578: Roman r. Mali. 42 Md. 513. 5.59; Merryman v. Euler, 59 Md. 588; Whipple r. Barton. 63 X. H. 613; Brown V. Bulklev, 1 ^IcCarter, 451; Howell /•. Ransom. 11 Paige, 538; Evans r. Ellis, 5 Denio, 640; Whitehead v. Kennedv. G9 X. Y. 462, 466: Place v. Hay- ward, 117 X. Y. 487. 497; Ah Foe v. Bennett, 35 Oreg. 231; Greenfield's Estate, 14 Pa. 489; :McMahan v. Smith, 6 Heisk. 167; Cooper v. Lee, 75 Tex. 114. 15> See infra, p. 746. n. 43. 20 See Malone v. Kellv. 54 Ala. 532: Ferguson r. Lowerv, 54 Ala. 510; Wickiser r. Cook, 85 111." 68; Carter v. Tice, 120 111. 277; McParland v. Lar- VOLUNTARY SETTLEMENTS. 737 This and all similar specifications are merely illustrative — " As no "Court has ever attempted to define fraud, so no Court has ever at- tempted to define undue influence, which includes one of its many ■varieties" (k). The cases in which this jurisdiction has been ac- tually exercised are considered as merely instances of the application of a principle " applying to all the variety of relations in which dominion may be exercised by one person over another " (Z).^^ *As to certain well-known relations, indeed, the Court is now [604 bound by authority to presume influence. . As to any other relation which the Court judges to be of a confidential kind it is free to pre- sume that an influence founded on the confidence exists, or to require .such proof thereof as it may think fit. It has even been said (m) that in every case where "one person ■obtains, by voluntary donation, a large pecuniary benefit from an- other," the person taking the benefit is bound to show " that the donor voluntarily and deliberately performed the act, knowing its nature and effect;" that for this purpose a voluntary donation means any transaction in which one person confers a large pecuniary benefit on another, though it may be in form a contract (n) ; and that such is the rule whether there is any confidential relation or not. But these dicta, though not expressly contradicted in any reported case, are {k) Lindley L.J. in AUcard v. aux confesseurs." So Pothier, Tr. .Skinner (1887) 36 Ch. Div. at p. 183. des donations entre-vifs, vol. vii. {I) Sir S. Romilly, arg. Huguenin p. 441, in (Euvres, ed. Dupin, 1825. V. Baseley (1807) 14 Ves. 285, 9 R. (m) By Lord Romilly in Cooke v. R. 283; adopted by Lord Cottenham, Lamotie (1851) 15 Beav. 234, 240, Dent V. Bennett ("l839) 4 My. & Cr. 21 L. J. Ch. 371; and Hoghton v. ■269, 277, 48 R. R. 94, 102; Billage v. Hoghton (1852) 15 Beav. 275, 298; Southee (1852) 9 Ha. 534, 540. Cp. cp. per Lord Hatherley in Phillips D'Aguesseau (GEuvres, 1. 299) "Par- v. Mullings (1871) L. R. 7 Ch. 244, ceque la raison de I'ordonnance est 246, 41 L. J. Ch. 211. g^nSrale, et qu'elle comprend ^gale- (n) E.g. Cooke v. Lamotte (1851) ment tons ceux qui peuvent avoir 15 Beav. 234, 21 L. J. Ch. 371; Dent quelque empire siir I'esprit des dona- v. Bennett (1839) 4 My. & Cr. 269, teurs, vos arrets en ont etendu la dis- 273, 48 R. R. 94, 99. position aux maltres, aux niedecins, kin, 155 111. 84; Ashton r. Thompson, 32 Minn. 25; Garvin v. Williams. 44 Mo. 465, 50 Mo. 206; Meek r. Perry, 36 Miss. 190; Harris v. Carstarphen, 69 N. C. 614; Hoppin r. Tobev, 9 R. I. 42; Womack v. Austin, 1 S. C. 421; Wade V. Pulsifer, 54 Vt. 45.^ 21 See Morley v. Loughnan. [1893] 1 Ch. 730, 752; Starr r. Lashmutt, 76 Fed. Rep. 907; Shipman r. Furniss, 69 Ala. 555, 564; Cleere r. Cleere, 82 Ala. 581; Dowie v. Driscoll, 203 111. 480; McCormick r. Malin, 5 Blackf. 509, 523; McClure v. Lewis, 72 Mo. 314, 322; Haydock v. Havdock, 34 N. J. Eq. 570, 574; Cowee r. Cornell, 75 N. Y. 91; Fisher r. Bishop, 108 N. Y. 25; Dohenv r. Lacv, 168 N. Y. 213, 222; Todd v. Grove, 33 Md. 188, 194; Deaton V. Munroe, 4 Jones Eq. 39. 41; Long v. Mulford, 17 Ohio St. 484, 504, 505; Tx)ngenecker r. Zion Church, 200 Pa. 567; Bayliss v. Williams, 6 Coldw. 440, 442. 47 738 DUKESS AND UNDUE INFLUENCE. certainly not law. There is no general presumption against the valid- ity of gifts as such (o). Where grounds of unfavourable presumption exist, it is easier to set aside a mere gift than a transaction from which tlie plaintiff has derived some benefit, though not adequate to what was given for it; and attempts to disguise a gift as a dealing for value are almost always fatal (p). Beyond this, it is conceived, the law does not go.^^ Burden of proof where no special relation. In the absence of any special relation from which influence is presumed, the burden of proof is 605] on the person *impeaching the transaction {q},^ and he must show affirmatively that pressure or undue influence was employed. Auxiliary rules and doctrines on special points. Having thus stated the fundamental rules, we may proceed to say something more of — (1.) The auxiliary rules applied by courts of equity to voluntary gifts in general : (2.) The like as to the influence presumed from special relations, and the evidence required in order to rebut such presumption : (3.) ^Yhat are the continuing relations between the parties from which influence has been presumed : (4.) From what circumstances, apart from any continuing relation, undue influence has been inferred ; and herein of the doctrine of equity as to sales at an undervalue and " catching bargains " : (5.) The limits of the right of rescission. 1. As to voluntary dispositions in general. (Cp. Dav. Conv. 3. pt. 1. Appx. No. 4.) General principles. A voluntary settlement which deprives the set- tlor of the immediate control of the property dealt with, though it be made not for the benefit of any particular donee, but for the benefit of the settlor's children or family generally, and free from any sus- (o) If there were, the elaborate in equity for avoiding the gift: Re discussion which took place e.g. in fllitbb, Bamfield v. Rogers [1900] 1 Allcard v. Skinner (1887) 36 Ch. Div. Ch. 354, 69 L. J. Ch. 278, C. A. 145, would have been suuerfluous. (q) Blackie v. Clark (1852) 15 (p) Also any innocent misrepre- Bear. 595; Toker v. Toker (1863) 31 sentation by the donee whereby a Beav. 629, 3 D. J. & S. 487, 32 L. J. voluntarj' gift is obtained is ground Ch. 322. 22 See Bro\^Ti r. Mercantile Co., 87 Md. 377; Hall v. Knappenberger, 97 Mo. 509; Havdock v. Havdock. 34 X. J. Eq. 570. 574; Parker's Adm. v. Parker's Adm., 45 X. J. Eq. 224; Doran r. McConlogue, 150 Pa. 98. 23\Yillpmin r. Dunn. 93 111. 511: Brown i\ Mercantile Co.. 87 Md. 377; Cowee r. Cornell. 75 X. Y. 91; Deaton v. Munroe, 4 Jones Eq. 39; Presslv V. Kemp, 16 S. C. 334; Millican r. Millican, 24 Tex. 426, 445. VOLUNTARY SETTLEMENTS. 739 picion of unfair motive, is not in a much better position tlian an absolute and immediate gift. It seems indeed doubtful whether the Court does not consider it improvident to make in general indefinite contemplation of marriage the same kind of settlement which in con- templation and consideration of a definitely intended marriage it is thought improvident not to make (r). It is conceived that the ground on which such dispositions are readily set aside at the instance of the settlor's representatives is not the imprudence of the thing alone, *but an inference from [606 that, coupled with other circumstances — such as the age, sex, and capacity of the settlor — that the effect of the act was not really con- sidered and understood at the time when it was done (s).^^ As to power of revocation. The absence of a power of revocation has often been insisted upon as a mark of improvidence in a voluntary settlement; and it has been even held to be in itself an almost fatal objection: but the doctrine now settled by the Court of Appeal is that it is not conclusive, but is only to be taken into account as matter of evidence, and is of more or less weight according to the other circumstances of each case (t).^^ It was a rule of Chancery practice that a voluntary settlement could not be set aside at the suit of a defendant. The person im- peaching it had to do so by a substantive proceeding in either an original or a cross suit (u). Under the existing practice he can pro- ceed by counter-claim if sued on the deed. 2. Auxiliary rules as to the influence presumed from special relations. Age, &c. not material. The principle on which the Court acts in such cases is not affected either by the age or capacity of the per- (r) Everitt v. Everitt (1870) L. R. ignorance or mistake of both parties 10 Eq. 405, 39 L. J. Ch. 777 ; but here as to the efiect of an instrument may some of the usual provisions were sometimes be inferred on the face ot omitted. it from its unreasonable or unusual (s) lb.; Prideaux v. Lonsdale character: see p. *500, supra. (1863) 1 D. J .& S. 433: this ground {t) Hall v. Hall (1873) L. R. 8 is strongly taken by Jessel M.R. in Ch. 430, 42 L. J. Ch. 444, where the Dution V. Thompson (1883) 23 Ch. former cases are reviewed. Div. at p. 281, 52 L. J. Ch. 661; (u) Way'.^ trust (1864) 2 D. J. &. James v. Conchman (1885) 29 Ch. D. S. 365, 372, 34 L. J. Ch. 49: HoU v. 212, 54 L. J. Ch. 838. So common Hall (1873) L. R. 14 Eq. 365, 377. 24 Garnsey r. IMundy. 24 X. J. Eq. 243. 25 Finuean v. Kendlg, 109 111. 198: Brown r. Mercantile Co., 87 Md. 377; Dunn );. Dunn, 42 N. J. Eq. 431; Russell's x\ppea]. 75 Pa. 269; Miskev's Appeal. 107 Pa. 618; Potter r. Fidelitv Co., 199 Pa. 366; Aylsworth v. \Yhit- comb, 12 R. I. 298; Sargent v. Baldwin, 60 Vt. 17. 7-10 DUKESS AND UNDUE INFLUENCE. son conferring the benefit, or by tlie nature of the benefit con- ferred (.r).^ " Where a relation of confidence is once established, either some positive act or some complete case of abandonment must be shown in 607] order to determine it:" it will not *be considered as deter- mined whilst the influence derived from it can reasonably be supposed to remain (x). Influence presumed to continue. Where the influence has its inception in the legal authority of a parent or guardian, it is presumed to con- tinue for some time after the termination of the legal authority, imtil there is what may be called a complete emancipation, so that a free and unfettered judgment may be formed, independent of any sort of control (y).^^ It is obvious that without this extension the rule would be practically meaningless. It is said that as a general rule a year should elapse from the termination of the authority be- fore the judgment can be supposed to be wholly emancipated : this of course docs not exclude actual proof of undue influence at any f.ubsequent time (z). Evidence required to rebut presumption of influence — Father and son. With regard to the evidence to be adduced to rebut the presumption in a transaction between a father and a son who has recently attained majority, the father is bound "to show at all events that the son was really a free agent, that he had adequate independent advice . . . that he perfectly understood the nature and extent of the sacrifice he was making, and that he was desirous of making it." " So aijain. where a solicitor purchases or obtains a benefit from a client, a court of equity expects him to be able to show that he has taken no advantage of his professional position; that the client was so dealing with him as to be free from the influence which a solicitor must necessarily possess, and that the solicitor has done as much to protect his client's interest as he would have done in the case of a client dealing with a stranger " (a) .28 (x) Per Turner, L.J. Rhodes v. (,z) See per Lord Cran worth, 7 H. Bate (1866) L. R. 1 Ch. 252, 257, 260, L. C. at p. 772. 35 L. J. Ch. 267; Holman v. Loynes (a) Savery v. King (1865) 5 H. L. (1854) 4 D. M. & G. 270, 283, 23 L. C. at p. 655, 25 L. J. Ch. 482; Cas- J. Ch. 529. home v. Barsham (1839) 2 Bcav. 76, (y) Archer v. Hudson (1844) 7 50 R. R. 106, seems not quite con- Reav. 551, 560. 13 L. J. Ch. 380; sistent with this: but there the plain- Wright v. Vanderplank (1855) 8 D. tifif was not the client himself, but M. & G. 133, 137, 146, 25 L. J. Ch. liis assignee in insolvency, and the 753. client's own evidence was rather fa- vourable to the solicitor. 20 See Barron r. Willis, [1900] 2 Ch. 121; McQueen r. Wilson, 131 Ala. 606; Pironi r. Corrigan, 48 N. J. Eq. 607 (quoting text) ; Mason v. Ring, 3 Abb. App. Dec. 210. 27 Ferguson r. Lowery, 54 Ala. 510; McConkey v. Cockev, 69 Md. 286; Ganin r. Williams. 44 Mo. 465, 50 Mo. 206. 28 See Tancre v. Pullman, 35 Minn. 476. FIDUCIARY RELATIONS. 741 He must give all the reasonable advice against himself that he would have given against a third person (h).^ And *he must [608 not deal with his client on his own account as an undisclosed prin- cipal. " From the very natvire of things, where the duty exists that he should give his client advice, it should be disinterested advice; he cannot properly give that advice when he is purchasing himself M'ithout telling his client that he is purchasing" (c). If the client becomes bankrupt, his trustee is entitled to the benefit of this special duty(d). The result of the decisions has been thus summed up by the Judi- cial Committee of the Privy Council. " The Court does not liold that an attorney is incapable of purchasing from his client ; but Avatchcs such a transaction with jealousy, and throws on the attorney the onus of showing that the bargain is, speaking generally, as good as any that could have been obtained by due diligence from any other purchaser" (e). He is not absolutely bound to insist on the inter- vention of another professional adviser. But if he does not, he must not be surprised at the transaction being disputed, and may have to pay his own costs even if in the result it is upheld. As to gifts, the rule is that the client must have competent independent advice (/). Generally — " The broad principle on which the Court acts in cases of this Gcscription is that, wherever there exists such a confidence, of whatever character that confidence may be, as enables the person in whom confidence or trust is reposed to exert influence over the person trusting him, the Court will not allow anj' transaction between the parties to stand unless there has (h) Gihson v. Jeyes (1801) 6 Ves. {d) Luddy's Trustee v. Peard 266, 278, 5 R. R. 295, 306. As to (1886) 33 Ch. D. 500. solicitor's charges, see Li/ddon v. (e) Pisani v. A.-G. for Gibraltar Moss (1859) 4 De G. & J. 104. (1874) L. R. 5 P. C. 516, 536, .540. (c) McPhcrson v. Watt (1877) (/") Liles v. Terry [1895] 2 Q. B. (Sc.) 3 App. Ca. 254, 272. 679, 65 L. J. Q. B. 34, C. A. 29 McPherson r. Watt, 3 App. Ca. 254, 266 ; Dunn v. Record, 63' Me. 17 ; Evans v. Ellis, 5 Denio, 640, 643; Bank v. Hornberger, 4 Coldw. 531, 571. "An attorney who seeks to avail himself of a contract made with his client is bound to establish affirmatively that it was made by the client with full knowledge of all the material circumstances known to the attorney, and was in every respect free from fraud on his part, or misconception on the part of the client, and tliat a reasonable use was made by the attorney of the confi- dence reposed in him.'' Whitehead r. Kennedy, 69 N. Y. 462, 466; Re Bowers, 83 Fed. Rep. 944, 955 ; Yeamans r. James. 27 Kan. 195, 207 ; Brigham r. Newton, 49 La. Ann. 1539; Burnham v. Heselton. 84 Me. 578; Dunn r. Dunn. 42 N. J. Eq. 431; Place r. Hayward, 117 N. Y. 487, 497: Thomas ;•. Turner's Adm., 87 Va. 1. "An attorney cannot sustain a purchase from his client without showing that he communicated to such client everything necessary to enable him to form a correct judgment as to the real value of the subject of the purchase, and as to the propriety of selling at the price offered. And the neglect of the attorney to inform himself of the true state of the facts will not enable him 1o sustain a purchase, from liis client, for an inadequate con- 742 DURESS AND UXDUE INFLUENCE. boen the fullest and fairest explanation and communication of every par- ticular resting in the breast of the one who seeks to establish a contract with the person so trusting him" (g).''^^ In other words, every contract entered into by persons standing in 609] such a relation is treated as being uberrimae ^'jidei, and may be vitiated by silence as to matters which one of two independent parties making a similar contract would be in no way bound to communicate to the other; nor does it matter whether the omission is deliberate, or proceeds from mere error of judgment or inadvertence {li). The rule extends not only to beneficial transactions with the confidential adviser himself, but to such as confer a benefit on any one closely connected with him (t). Thus a medical attendant who makes with his patient a contract in any way depending on the length of the patient's life is bound not to keep to himself any knowledge he may have professionally ac- quired, whether by forming his own opinion or by consulting with other practitioners, as to the probable duration of the life {h). Per- haps the only safe way, and certainly the best, is to avoid such con- tracts altogether. In Grosvenor v. Sherratt (/), where a mining lease had been granted by a young lady to her brother-in-law (the son of her fathers executor) and uncle, at the inducement of the said executor, "in whom she placed the greatest confidence," it was held that it was not enough for the lessees to show that the terms of the lease were fair ; they ought to have shown that no better terms could possibly have been obtained; and as they failed to do this, the lease was set aside. This comes very near to the case of an agent dealing on his own account with his principal, when " it must be proved that full in- formation has been imparted, and that the agreement has been en- tered into with perfect good faith." ^^ ISTor is the agent's duty altered (g) Per Page Wood V.-C. Tate v. ent advice, not followed up, will not WiVifinison (1866) L. R. 1 Eq. at validate such a transaction. p. 536. ik) Popham v. Brooke (1828) 5 ih) Molony v. Kernan (1842) 2 Russ. 8. Dr. & W. at p. 39. (I) (1860) 28 Beav. 659, 663. This (i) Barron v. Willis [1900] 2 Ch. is an extreme case; but there was 121, 69 L. J. Ch. 832, C. A.; which some evidence of independent offers also shows (if authority be needed) being discouraged, that a mere suggestion of independ- sideration." Howell v. Ransom, 11 Paige, 538; Rogers r. Marshall, 3 Mc- Cr.Trv. 76. •'•onfrenfritz v. llgenfritz. 116 Mo. 429 (quoting text). 31 Brooks V. Martin, 2 Wall. 70, 85; Kimberly r. Arms, 129 V. S. 512, 527; Ralston v. Turpin, 129 U. S. GG3, 674; Waddeil r. Lanier, 62 Ala. 347, 350; FIDUCIARY RELATIONS. 743 though the proposal originally came from the principal and the ^principal shows himself anxious to complete the transaction as [610 it stands (m). The same rules apply to an executor who himself be- comes the purchaser of part of his testator's estate (n).^ But this obligation of agents and trustees for sale appears (as we have already considered it, p. *285, above) to be incidental to the special nature of their employment, and to be a duty founded on contract rather than cue imposed by any rule of law which guards the freedom of con- tracting parties in general. The duty cast upon a solicitor, or other person in a like position of confidence, who deals on his own account with his client, of disclosing all material circumstances within his knowledge, does not however bind him to communicate a " speculative and consequential " possibility which may affect the future value of the subject-matter of the transaction, but which is not more in his own knowledge than in the client's (o). Family arrangements exceptionally favoured. It must not be forgotten tliat the suspicion with which dealings between parents and children presumably still under parental influence are regarded by courts of equity is to a certain extent counteracted by the favour with which dispositions of the kind known as family arrangements are treated. In many cases a balance has to be struck between these partly con- flicting presumptions. " Transactions between parent and child may proceed upon arrangements between them for the settlement of property, or of their rights in property in which they are interested. In such cases this Court regards the transactions with favour. It does not minutely weigh the considerations on one side or the other. Even ignorance of rights, if equal on both sides, may not avail to im- (m) Dally v. Wonham (18G3) 33 fused on the ground of seventeen Beav. 154. years' delay. in) Baker V. Read (1854) 18 Beav. (o) Edwards v. Mcyrick (1842) 2 398; where however relief was re- Ha. 60, 74; Holman v. Loynes (1854) 4 D. M. & G. at p. 280. Smith V. Sweeney, 69 Ala. 524, 527; Rubidoex v. Parks, 48 Cal. 215; Casey v. Casey, 14 111. 112; McCorniick v. Malin, 5 Blaekf. 509; Rochester v. Levering, 104 Tnd. 562; Farnam v. Brooks. 9 Pick. 212; Rath v. Vanderlyn, 44 Mich. 597; Hicks V. Steel, 126 Mich. 408; Hegenmver i\ Marks, 37 Minn. 6; Merriam r. Johnson, 86 Minn. 61; Condit v. Blackwell, 22 N. J. Eq. 481; Tappan v. Ayisworth, 13 R. I. 582. "32 Johnson v. Johnson, 5 Ala. 90; Williams v. Powell, 66 Ala. 20; Jones v. Jones, 131 Mo. 194; Farmer's Exr, ;;. Farmer, 39 N. J. Eq. 211; People v. Open Board, 92 N. Y. 103 ; Statham r. Ferguson, 25 Graft. 28. And see Good- win V. Goodwin, 48 Ind. 584; Handlin v. Davis, 81 Ky. 34. 744 DUEESS AND UNDUE INFLUENCE. 61 1 ] peach the transaction (p)P *0n the other hand, the transac- tion may be one of bounty from the child to the parent, soon after the child has attained twenty-one. In such cases this Court views the transaction with Jealousy, and anxiously interposes its protection to guard the child from the exercise of parental influence" (q). It must be observed that the rules concerning gifts, or trans- actions in the form of contract which are substantially gifts, from a son to a father, do not apply to the converse case of a gift from an ancestor to a descendant : there is no presumption against the validity of such a gift, for it may be made in discharge of the necessary duty of providing for descendants (r).^"* Classification of relations. 3. Relations between the parties from which influence has been presumed. It would be useless to attempt an exact classification of that which the Court refuses on principle to define or classify: but it may be convenient to follow an order of approximate analogy to the cases of well-known relations in which the presumption is fully established. A. Relations in which there is a power analogous to that of parent or guardian. Uncle in loco parentis and niece: A^'cher v. Hudson (1844) 7 Beav. 551, 13 L. J. Ch. 380; Maitland v. Irving (1846) 15 Sim. 437.35 Step-father (p) Perhaps it is safer to say that of family arrangement not applying the " almost invincible jealousy "' of when a son without consideration the Court is reduced to " a reason- gives up valuable rights to his fatlier : able degree of jealousy": cp. Ix)rd .SV/rrn/ v. King (1856) 5 H. L. C. at Eldon's language in Hatch v. Hatch p. 657. A sale by a nephew to his (1804) 9 Ves. at p. 296, 7 R. R. at [great] uncle of his reversionary in- p. 197, and Ticeddcll v. TiceddeU terest in an estate of which the uncle (1822) Turn. & R. at p. 13, 23 R. R. is tenant for life is not a family ar- 168. On the question of consideration rangement: Talbot v. Btaniforth see Williams v. Williams (1866-7) (1861) 1 J. & H. 484, 501. As to the L. R. 2 Ch. 294, 304, 36 L. J. Ch. 200. amount of notice that will allect a (g) Balcrr v. Bradley (1855) 7 U. purchaser: Bainbrigge v. Browne iM. & G. 597. 620. See also Wallace \. (1881) 18 Ch. D. 188, 50 L. J. Ch. Wallace (1842) 2 Dr. & W. 4-52, 470; 522. Brllawy V. 8abinc (1835) 2 Ph. 425, (r) Beanland v. Bradley (1854) 2 439: Hoghfon v. Hoghton (1852) 15 Sni. & G. 339. Beav. 278, 300; and on the doctrine 33 See Supreme Assembly r. Campbell, 17 R. I. 402. 34 See Towson v. Moore." 173 U. S. 17; Fitch v. Reiser, 79 la. 34; Bauer v. Bauer, 82 Md. 241; McKinney v. Hensley, 74 Mo. 326; Millican v. Millican, 24 Tex. 426; Saufley r. .Jackson, 16 Tex. 579: Davis v. Dean, 66 Wis. 100. But the unfavorable' presumption may arise '' where the natural position of the parties is reversed by the influence of time, and the parent has become a child, and the child is "guardian to the parent." Highberger r. Rtiffler, 21 Md. 338: Ennis r. Burnham, 156 Mo. 494: Ten Eyck r. Whitbeck, 156 X. Y. 341, .353: Brummond r. Krause, 8 N. Dak. 573. 35 Earhart r. Holmes. 97 la. 649 : uncle and nephew, Hall v. Perkins, 3 Wend. 626; Graham v. Little, 3 Jones Eq. 152. RELATIONS WHENCE INFLUENCE PRESUMED. 745 in *loco parentis and step-daughter: Kempson v. Ashbee (1874) 10 [612 Ch. 15, 44 L. J. Ch. 195; Espvy v. Lake, 10 Ha. 260.36 Executor of a will (apparently in a like position) and the testators daughter: Orosvenor v. Sherratt (1860) 28 Beav. 059. Husband of a minor's sister with whom the minor had lived for some time before he came of age: O'ri/fin v. Deveuille (1781) 3 P. VVms. 131, n. But the mere fact of a minor living with a relative of full age does not raise a presumption of influence; or the presumption, if any, is rebutted by proof of business-like habits and capacity on the donor's part: Taylor v. Johnston (1882) 19 Ch. D. 603, 51 L. J. Ch. 879. Two sisters living together, of whom one was in all respects the head of the house, and might be considered as in loco parentis towards the other, though the other was of mature years: Harvey v. Moxint (1845) 8 Beav. 439.37 Brother and sister, where the sister at the age of 46 executed a voluntary settlement under the brother's advice and for his benefit: Sharp v. Leach (1862) 31 Beav. 491.38 Husband and wife on the one part, and aged and infirm aunt of the wife on the other: ' Griffiths v. Robins (1818) 3 Mad. 191,39 Distant relationship by marriage: the donor old, infirm, and his sound- ness of mind doubtful ; great general confidence in the donee, who waa treated by him as a son: Steed v. Calley (1836) 1 Kee. 620. This rather than the donor's insanity seems the true ground of the case : see p. 644. Keeper of lunatic asvlum and recovered patient: Wright v. Proud (1806) 13 Ves. 136. There are also cases of general control obtained by one person over another without any tie of relationship or lawful authority: Bridgman v. Green, (1755) 2 Ves. Sr. 627, Wilm. 58, where a servant obtained complete control over a master of weak understanding. Kay r. Smith (1856) 21 Beav. 522, affirmed nom. Smith v. Kay (1859) 7 H. L. C. 750, where an older man living with a minor in a joint course of extravagance induced him immediately on his coming of age to execute securities for bills previously accepted by him to meet the joint expenses. In Lloyd v. Clark (1843) 6 Beav. 309, the influence of an officer over his junior in the same regiment was taken into account as increasing the weight of other suspicious circumstances ; but there is nothing in the case to war- rant including the position of a superior officer in the general category of " f-uspected relations." B. Positions analogous to that of solicitor.*^ Certified conveyancer acting as professional adviser: Rhodes v. Bate (1866) L. R. 1 Ch. 252, 35 L. J. Ch. 267. Counsel and confidential adviser: Broun V. Kennedy (1863) 33 Beav. 133, 148, 4 D. J. S. 217. 36 Bradshaw v. Yates, 67 Mo. 221; Berkmeyer V. Kellerman, 32 Ohio St. 239; step-mother and step-daughter, Powell v. Powell [1900], 1 Ch. 243; step- father and step-son, Givan v. Masterson, 152 Ind. 187 ; grandparent and grand- child, Brown v. Burbank, 64 Cal. 99; Chambers r. Chambers, 139 Ind. 111. 37 Watkins v. Brant, 46 Wis. 419; two brothers, Todd r. Grove, 33 Md. 188. 38 See Boney v. Hollingsworth, 23 Ala. 690; Million r. Tnvlor, 38 Ark. 428; Thornton v. Ogden, 32 N. J. Eq. 723; Sears r. Shafer, 6 N. Y. 268; Jones v. Jones, 120 N. Y. 589. 39 McClure v. Lewis, 72 Mo. 314; Graves v. White, 4 Baxt. 38; nephew and aged and dying uncle, Duncombe v. Richards, 46 Mich. 166. It has been decided that there is no such relation of trust and confidence between a man and his mother-in-law, that in dealings between them the latter should be supposed to act upon the assumption that there would be no concealment of facts from her. Fish r. Cleland, 33 111. 238; 43 111. 282; McHarry v. Irwin, 85 Ky. 322. See also Herron v. Herron, 71 la. 428; Zimmerman v. Bitner, 79 Md. 115. 40 See BuflFalow p. Bufi"alow, 2 Oev. & Bat. Eq. 241; Bayliss v. Williams, 6 Coldw. 440; Poillon v. Martin, 1 Sandf. Ch. 569. 74G DUKESS AND UNDUE INFLUENCE. Confidential agent substituted for solicitors in general management of aflaiis: Huyuvmn v, Baseleij (1807) 14 Ves. 273, 9 R. R. 270 (s) . 613J "A person deputed by an elder relation, to whom a young man applied for advice and assistance in pecuniary ditliculties, to ascertain the state of his atl"airs and advise on relieving him from his debts: Tate V. Williamson (18130) L. R. 1 Eq. 528, 2 Ch. 55. The relation of a medical attendant and his patient is treated as a con- fidential relation analogous to that between solicitor and client: Dent v. Bennett (1839) 4 :*ly. & Cr. 269, 48 R. R. 94: Billaye v. Southee (1852) 9 Ha. 534; Ahearne v. Hogan (1844) Dru. 310;-il thougli in Blackie \. Clarh (1852) 15 Beav. 595, 603, somewhat less weight appears to be attached to it.^2 It does not appear in the last case whether the existence of " anything like undue persuasion or coercion'' (p. 604) was merely not proved or positively disproved: on the supposition that it was disproved there would be no incon- sistency with the other authorities. For another unsuccessful attempt to set aside a gift to a medical attendant, see Pratt v. Barker (1826-28) 1 Sim. 1, 4 Russ. 507, 27 R. R. 136, there the donor was advised by his own solicitor, who gave positive evidence that the act was free and deliberate. c. Spiritual influence. It is said that influence would be presumed as between a clergyman or any person in the habit of imparting religious instruction and another person placing confidence in him: Dent v. Bennett (1835) 7 Sim. at p. 546, 48 R. R. p. 97.^3 There have been two remarkable modern cases of spiritual influence in which there were claims to spiritual power and extraordinary gifts on the one side, and implicit belief in such claims on the other; it was not necessary to rely merely on the presumption of influence resulting therefrom, for the evidence which proved the relation of spiritual confidence also went far to prove as a fact in each case that a general influence and control did actually result: Nottidge v. Prince (1860) 2 Gifl". 240. 29 L. J. Ch. 857: Lyov v. Home (1868) L. R. Eq. 6.55, 37 L. J. Ch. 674 it)M In the former case at all events there was gross imposture, but the spiritual dominion alone -would liave been sufficient ground to set aside the gift: for the Court con- sidered the influence of a ininister of religion over a person under his direct (s) A fortiori, where characters 25 R. R. 150, 30 R. R. 1. In Rossiter of steward and attorney are com- v. Walsh (1843) 4 Dr. & W. 485, bined: Harris v. Trenicnheere (1808) where the transaction was between 15 Ves. 34, 10 R. R. 5. A flagrant an agent and a sub-agent of the same case is Baker \. Loader (1872) L. R. principals, the case was put by the 10 Eq. 49, 42 L. J. Ch. 113. Cp. bill (p. 487) , but not decided, on the Moxon V. Paytie (1873) L. R. 8 Ch. ground of fiduciary relation. See 881, 43 L. J. Ch. 240, where however p. 609, above. the facts are not given in any detail. {t) In Lyon v. Home the evidence As to a land agent purchasing or appears to have been in a very un- taking a lease from his principal, see satisfactory condition, and on many also Molony v. Kernan (1842) 2 Dr. particulars to have led to no definite & W. 31; Lord Selsey v. Rhoades conclusion : the case is therefore more (1824-27) 2 Sim. & St. 41, 1 Bli. 1, curious than instructive. 41 Cadwallader r. West, 48 Mo. 483, 490. 42 And see Watson v. Mahan. 20 Ind. 223; Audenried's Appeal, 89 Pa. 114. 43 Thompson c. Hawks, 14 Fed. Rep. 902; McQueen v. Wilson, 131 Ala. 606; Ross r. Conway, 92 Cal. 632 ; Dowie v. Driscoll, 203 111. 480; Good r. Zook, 116 la. 582: Caspar! v. First Church, 12 Mo. App. 293; Ford r. Hennessy, 70 Mo. 580 ; Pironi r. Corrigan, 48 X. J. Eq. 607 ; Marx r. McGlynn, 88 N. Y. 357. 44 See also Connor V. Stanley, 72 Cal. 556: Ross r. Conway. 92 Cal. 032; Middleditch v. Williams, 45 N. J. Eq. 726; Hides v. Hides, 65 How. Pr. 17. SPECIAL CASES. 74T spiritual charge to be stronger than that arising from any other relation (w) .45 There seems to have been also in Norton v. Relly (17tJ4) *2 Eden, 28G, [614 the earliest reported case of tliis class, a considerable admixture of actual fraud and imposition. A peculiar case is Allcard v. Skmner (1887) 3G Ch. Div. 145, 56 L. J. Ch. 1052. The plaintifl'. a lady of full age, had joined a religious sisterhood, apparently of her own mere motion and free will. Its rules, known to her before she applied for admission, required the members to abandon all their individual property; not necessarily to the sisterhood, l)ut the common prac- tice was to give it to tlie superior for the purposes of the sisterhood. Other rules required strict obedience to the superior, restrained communication with " externs " about the affairs of the convent, and forbade members to " seek advice of any extern without the superior's leave." At various times after entering the sisterhood tlie plaintiif made transfers of considerable sums of money and stock to the superior, in fact " gave away practically all she could."' After some years she left the sisterhood, and after nearly six years more she claimed the return of the funds remaining in the superior's liands. It was held that, having regard to the position of the plaintiff as a member of the sisterhood, and to the rules she had undertaken to obey, especially the rules against comnumication with " externs," .she was not a free agent at the time of making the gifts. But the majority of the Court held that her subsequent conduct amounted to confirmation. A still later case where a weak rich man became a mere puppet in the hands of an amateur spiritual director, who used his ascendancy for the most grossly selfish ends, is Morley v. Loitghnan [1893] 1 Ch. 736, 62 L. J. Ch. 515. The authority of Hufjuenin v. Baselcy (1807) 14 Ves. 273, 9 R. R. 276, as to this particular kind of influence, is to be found not in the judgment, which proceeds on the ground of confidential agency, but in Sir S. Romilly's argu- ment in reply, to which repeated judicial approval has given a weight scarcely if at all inferior to that of the decision itself. 4. Circumstances hold to amount to proof of undue influence, apart from any continuing relation. Securities obtained by pressure: Williams v. Bayley. In a case where a father gave security for the amount of certain notes believed to have been forged by his son, the holders giving him to understand that otherwise the son would be prosecuted for the felony, the agreement v>"as set aside, as well on the ground that the father acted under undue pressure and was not a free and voluntary agent, as because the agree- ment was in itself illegal, as being substantially an agreement to stifle a criminal prosecution {x)^^ (tt) 2 Giff. 269, 270. R. 1 H. L. 200, 35 L. J. Ch. 717; cp. (X) Williams v. Bayley (1866) L. p. *329, above. 45 See also Nachtrieb v. The Harmonv Settlement, 3 Wall. Jr. 66; Connor v. Stanley, 72 Cal. 556; Orchardson v. Cofield, 171 111. 14. 4« Sharon v. Gager, 46 Conn. 189; Ingalls r. Miller, 121 Ind. 188; Singer ilfg. Co. V. Rawson, 50 la. 634; Winfield Bank v. Croco, 46 Kan. 620; Thorne r. Pinkham, 84 Me. 103: Rau r. Von Zedlitz, 132 Mass. 164; Silsbee v. Webber, 171 Mass. 378; Benedict v. Roome, 106 Mich. 340; Allen v. Leflore Co., 78 Miss. 671: Bell r. Campbell, 123 Mo. 1; Lonierson r. Johnston, 44 X. J. Eq. 93; IngersoU r. Roe, 65 Barb. 346; Eadie V. Slimmon. 26 N. Y. 9; Kavnes V. Rudd, 102 N. V. 372; Adams r. Irving Bank, 116 N. Y. 606; Weber r. Barrett, 125 N. Y. 18; Anthony v. Hutchins. 10 R. I. 165; Folev r. Greene, 748 DURESS AND UNDUE INFLUENCE. 615] *In Ellis V. Barl-er (y) the plaintiff's interest under a will was practically dependent as to part of its value on his being accepted as tenant of a farm the testator had occupied as yearly tenant. One of the trustees was the landlord's steward, and in order to induce the plaintiff to carry out the testator's supposed intentions of providing for the rest of the family he persuaded the landlord not to accept the plaintiff as his tenant unless he would make such an arrange- ment with the rest of the family as the trustees thought right. Under this pressure the arrangement was executed : it was practically a gift, as there was no real question as to the rights of the parties. Afterwards the deeds by which it was made were set aside at the suit of the plaintiff, and the trustees (having thus unjustifiably made themselves partisans as between their costuis que trust) had to pay the costs.^^ These are the most distinct cases we have met with of a transaction being set aside on the ground of undue influence specifically proved to have been used to procure the party's consent to that particular transaction (2). Smith V. Kay. In Smith v. Kay (a) a young man completely under the influence and control of another person and acting under that influence had been induced to execute securities for bills which he had accepted during his minority without any independent legal ad- vice; and the securities were set aside. There was in this case evidence of actual fraud ; but it was distinctly affirmed that the decision would have been the same without it, it being incumbent on persons claim- ing under the securities to give satisfactory evidence of fair deal- ing (h). (V) (1871) L. E. 7 Ch. 104, 41 L. (a) (1850) 7 H. L. C. 750. J. Ch. 64. {h) Pp. *761, *770. The securities iz) Cp. Ormes v. Beadel (1860) 2 given were for an amount very much Gifl. 166. .30 L. J. Ch. 1, revd. 2 D. exceedin.i? the whole of the sums F. & J. .3.3.3, on the ground that the really advanced and the interest upon agreement had afterwards been a'oI- them: p. *778. untarily acted upon with a knowledge of all the facts. 14 R. I. 618; Coffman v. Bank, 5 Lea, 2.32; Obert v. Landa, 59 Tex. 475; Landa v. Obert. 78 Tex. 33; Gorringe r. Read, 23 Utah, 120; Bank r. Kus- worm, 88 Wis. 188. But see Russeirr. Durham, 16 Ky. L. Rep. 516; Phiiiips V. Henry, 160 Pa. 24; Loud v. Hamilton, 51 S. W. Rep. 140 (Tenn.). 47 " \tTiile a man in the full possession of his faculties and under no duress may give away his property, and equity will not recall the gift, yet it looks with careful scrutiny upon all transactions between trustee and benefifiary, and if it appears that the tru=tee has taken any advantage of the situation of the beneficiary, and has obtained from him, even for only the benefit of other beneficiaries, large property without consideration, it will refuse to uphold the transaction thus accomplished." Adams v. Cowen, 177 U. S. 471, 484. UNDERVALUE. 749 *This comes very near to the peculiar class of cases on " catch- [61 6 ing bargains " with which we shall deal presently. Other circumstances from which undue influence inferred. Undue in- fluence may be inferred when the benefit is such as the taker has no right to demand {i.e. no natural or moral claimj and the grantor no rational motive to give (c). Undervalue. Inadequacy of the consideration, though in itself not decisive, may be an important element in the conclusion arrived at by a court of equity with respect to a contract of sale. General rule: undervalue has of itself no effect. The general rule of ■equity in this matter has been thus stated by Lord Westbury : " It is true that there is an equity which may be founded upon gross inade- quacy of consideration. But it can only be where the inadequacy is such as to involve the conclusion that the party eitlier did not under- stand what he was about or was the victim of some imposition " {d).*^ The established doctrine is that mere inadequacy of price is in itself of no more weight in equity than at law (e).'*^ It is evidence ■of fraud, but, standing alone, l)y no means conclusive evidence (f).^'* (c) Purcell V. M-Xumai-a (1807) set aside s. conveyance there must oe 14 Ves. 91, 115. an inequality so strong, gross, and (d) Tennent v. Tennents (1870) L. manifest, tliat it must be impossible H. 2 Sc. & D. 0, 9. For a modern to state it to a man of common sense instance of such a conclusion being without producing an exclamation at actually drawn by the Court from a the inequality of it." «ale at a gross undervalue, see Rice (e) Wood v. Ahrcy (1818) 3 Mad. V. Gordon (1847) 11 Beav. 205, 270; 417, 423, 18 R. R. 2(J4, 208: Peacock cp. Underhill v. Honcood (1804) 10 v. Evans (1809) 10 Ves. 512, 517, 10 Tes. at p. 219; Summers v. Gri/fi.ths R. R. 218, 222; Stilwell v. Wilkins (1800) 35 Beav. 27, 33, and the ( 1821 ) Jac. 280. 282, 23 R. R. 50. earlier dictum there referred to of (/) Cockell v. Taylor (1851) 15 Lord Thurlow in Gwynne v. Hcalon Beav. 105, 115, 21 L. J. Ch. 545. (1778) 1 Bro. C. C. 1, 9, that "to 48 See Eyre r. Potter, 15 How. 42. 60; Wann v. Coe, 31 Fed. Rep. 369; Juzan V. Toulmin, 9 Ala. 002, 080; Wiest v. Garman, 3 Del. Ch. 422, 442; 4 Houst. 119; Witherwax v. Riddle, 121 111. 140; Railroad Co. v. Commrs. of Miami Co., 12 Kan. 482: Gay v. Witherspoon, 13 Kv. L. Rep. 20; Hver v Little, 20 N. .7. Eq. 443, 459; Phillips r. Pullen, 45" K J. Eq. 5; Dunn v. Chambers, 4 Barb. 376, 379; Parmelee r. Cameron, 41 N. Y. 392; Steele V. Worthington, 2 Ohio, 182, 195; Coffee r. Ruffin, 4 Coldw. 487, 507; Mann v. Russey, 101 Tenn. 590; Stephens r. Ozbourne. 107 Tenn. 572; Howard r. Edgell, 17 Vt. 9, 27; Jones v. Degge, 84 Va. 685; Hanna v. Kasson, 26 Wash. .568. 49 Eyre r. Potter, 15 How. 42, 59, 60; Hemingway v. Coleman, 49 Conn. 390; Chaires v. Bradv, 10 Fla. 133; Exrs. of Wintermute r. Exrs. of Snvder, 2 'Green's Ch. 489, 490; Miles r. Dover Iron Co., 125 N. Y. 294. soHovle r. Southern Saw Works, 105 Ga. 123; Talbot's Devisees r. Hooser, 12 Busii, 408; Davidson v. Little, 22 Pa. 245. "ioO DURESS AND UNDUE IXFLUEN-CE, Even when coupled with an incorrect statement of the consideration it will not alone be enough to vitiate a sale in the absence of any fiduciary relation between the parties (g). 617] *But coupled with other circumstances may be material as evidence that consent, or freedom of consent, was wanting. But if there are other cir- cumstances tending to show that the vendor was not a free and reasonable agent, the fact of the sale having been at an undervalue may be a material element in determining the Court to set it aside. Thus it is when one member of a testator's family conveys his in- terest in the estate to others for an inadequate consideration, and it is doubtful if he fully understood the extent of his rights or the effect of his act (h).^^ If property is bought at an inadequate price from an uneducated man of weak mind (i) or in his last illness (A*),^'^ who is not protected by independent advice, the burden of proof is on the purchaser to show that the vendor made the bargain deliber- ately and with knowledge of all the circumstances. Xay, more, when the vendor is infirm and illiterate and employs no separate solicitor, " it lies on the purchaser to show affirmatively that the price he has given is the value.'' and if he cannot do this the sale will be set aside at the suit of the vendor (/). In 1871 a case in the Court of Appeal was decided on the ground that " if a solicitor and mortgagee . . . obtains a conveyance [of the mortgaged property] from the mort- gagor, and the mortgagor is a man in humble circumstances, without ig) Harrison \. Guest (1855) 6 .D. (i) Longmate v. Ledger (18G0) 2 M. & G. 424, 8 H. L. C. 481. Giff. 157, 163 (affirmed on appeal, see (h) f^turge v. Sturge (1849) 12 4 D. F. & J. 402). Beav. 229. 19 L. J. Ch. 17; cp. Dun- {k) Clark v. Malpas (1862) 31 naqc v. White (1818) 1 Swanst. 137, Beav. 80, 4 D. F. & J. 401. 150, 18 R. R. 33, 41. (/) Baker v. Monk (1864) 33 Beav. 419, 4 D. J. & S. 388, 391. 51 Million r. Taylor, 38 Ark. 428; Thornton v. Ogden, 32 X. J. Eq. 723. 52 " It may be stated as settled law, that whenever there is great weak- ness of mind in a person executing a conveyance of land, arising from age^ sickness, or any other cause, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and seasonable application of the injured party, or his representatives or heirs, interfere and set the conveyance aside." Al- lore V. Jewell, 94 U. S. 506, 511, 512; Griffith r. Godey, 'll3 U. S. 89, 95. And see Parkhurst r. Hosford, 21 Fed. Rep. S27 : St. Louis, etc., Ry. Co. r. Phillips. (C. C. A.) 66 Fed. Rep. 35: :\ronr(> r. Monre, 56 Cal. 89; Taylor r. Atwood. 47 Conn. 498: Reed r. Peterson. 91 111. 288: Perkins r. Scott*. 23 la. 237: Harris r. Wamslev. 41 Ta. 671; Cloueh r. Adams. 77 la. 17; lluntrr V. Owens, 10 Ky. L. Rep.' 651 ; Goodrich v. Shaw. 72 Mich. 109; Rielly r. Brown, 87 Mich. 163; Clark r. Lopez. 75 yiiss. 932: Cadwallader v. West, 48 Mo. 483; Tracv r. Rackett, 1 Ohio St. 54: Scovill r. Barney, 4 Oreg. 288; Buffalow r. Buffalnw. 2 Dev. 8z Bat. Eq. 241; Varner v. Carson, 59 Tex. 303; Cole v. Getzinger, 96 Wis. 559. * UNDERVALUE. 751 any legal advice, then the onus of justifying the transaction, and sliowing that it was a right and fair transaction, is thrown upon the mortgagee "(w),^^ Still more lately the poverty and ignorance of the seller of a reversionary interest have been held enough, without infirmity of body or mind, to throw the burden of proof on the buyer (n). Similarly if a purchase is made at an inadequate price *from [618 vtndors in great distress, and without any professional assistance but that of the purchaser's solicitor, " these circumstances are evidence that in this purchase advantage was taken of the distress of the ven- dors," and the conveyance will be set aside (o).^ " Equality between the contracting parties." It has even been said that to sustain a contract of sale in equity '' a reasonable degree of equality between the contracting parties" is required (p)-^^' But such a dic- tum can be accepted only to this extent: that when there is a very marked inequality between the parties in social position or intelli- gence, or the transaction arises out of the necessities of one of them and is of such a nature as to put him to some extent in the power of the other, the Court will be inclined to give much more weight to any suspicious circumstances attending the formation of the contract, and will be much more exacting in its demands for a satis- (m) Lord Hatherley C. Frees v. Giff. at p. 163, by Stuart V.C; cp. Coke (1870-1) L. R. 6 Ch. 645, 649: the same judge's remarks in Barrett though in general there is no rule v. Hartley (1866) L. R. 2 Eq. at against a mortgagee buying from his p. 794. But see the more guarded mortgagor: Knight v. Marjoribanks statement in Wood v. Abrey, 3 Mad. (1849) 2 Mac. & G. 10; and see Ford at p. 423, 18 R. R. p. 268. "A court V. Olden (1867) L. R. 3 Eq. 461, 36 of equity will inquire whether the L. J. Ch. 651. [See supra, p. *507, parties really did meet on equal n. 93.] terms; and if it be found that the («) Fry V. Lane (1888) 40 Ch. D. vendor was in distressed circum- 312, 58 L. J. Ch. 113. stances, and that advantage was (o) Wood V. Abrry (1818) 3 Mad. taken of that distress, it will avoid 417, 424, 18 R. R. 264, 269. the contract." ip) Longmate v. Ledger (1860) 2 53 See Wildrick r. Swain, 34 N. J. Eq. 167. 54 Wheeler r. Smith, 9 How. 55 ; Lester v. Mahan, 25 Ala. 445 ; MeCor- mick V. Malin, 5 Blackf. 509, 530; Esham r. Lamar, 10 B. Mon. 43; Admrs. of Hough v. Hunt, 2 Ohio, 495 ; McKinney v. Pinekard, 2 Leigh, 149. Wliere plaintiff had sold and transferred to the defendant a policy of in- surance of $1,477.73, which the insurance company was willing to pay if the plaintiff would place her signature to the release on the policy, and plaintiff, taking advantage of her assignee's situation, exacted his promise to pay her $477.73 for the mere inconvenience of writing her name, it was held that the promise was not binding, and that plaintiff was entitled to recover only the fair value of her services in writin.-r her signature (which was fixed at one cent). Caplice r. Kellov, 23 Knn. 474, 27 Kan. 359. 55 See Dundee Works ■;;. Connor, 46 N. J. Eq. 576. 752 DUEESS AND UNDUE INFLUENCE. factory explanation of them, than when the parties are on such a footing as to be presumably of equal competence to understand and protect their respective interests in the matter in hand. The true doctrine is well expressed in the Indian Contract Act, s. 25, expl. 2. " An agreement to which the consent of the promisor is freely given is not void merely because the consideration is inade- quate; but the inadequacy of the consideration may be taken into ac- count by the Court in determining the question whether the consent of the promisor was freely given." A sale made by a person of in- ferior station, and for an inadequate price, was upheld by the Court of Appeal in Chancery, and ultimately by the House of Lords, when it appeared by the evidence that the vendor had entered into the 619] transaction deliberately, and *had deliberately chosen not to take independent professional advice (q). Can specific performance be refused on the ground of undervalue alone? It is not so clear however that a degree of inadequacy of considera- tion which does not amount to evidence of fraud may not yet be a sufficient ground for refusing specific performance. The general rule as to granting specific performance, so far as it bears on this point, is that the Court has a discretion not to direct a specific per- formance in cases where it would be highly unreasonable to do so: it is also said that one cannot define beforehand what shall be con- sidered unreasonable (r). On principle it might perhaps be doubted whether it should ever be considered unreasonable to make a man perform that which he has the present means of performing, and which with his eyes open he has bound himself to perform by a con- tract valid in law. And it is said in Watso7i v. Marston (r) that the Court " must be satisfied that the agreement would not have been entered into if its true effect had been understood." Perhaps this may be considered to overrule those earlier decisions which furnish authority for refusing a specific performance simply on the ground of the apparent hardship of the contract. The question now in hand is whether inadequacy of consideration, not being such as to make the validity of the contract doubtful (s), is regarded as making the (g) Harrison v. Guest (1855) 6 D. that it is not valid, has always been M. & G. 424, 8 H. L. C. 481; cp. held a sufficient ground for refusing Kosher v. Williams (1875) L. E. 20 specific performance. Probably this Eq. 210, 44 L. J. Ch. 419. arose from the habit or etiquette by (r) See Watson v. Marston (1853) which courts of equity, down to re- 4 D. M. & G. 230, 239, 240, and dicta cent times, never decided a legal there referred to. point when they could help it. Now (s) Doubt as to the validity of tliat legal and equitable jurisdiction the contract, short of the conclusion are vmited, the Court will consider UNDERVALUE. 753 performance of it highly unreasonable within the meaning of the above rule : and for this purpose we assume the generality of the rule not to be affected by anything that was said in Watson v. Mar- ston. ♦Conflicting authorities collected. In the absence of any final de- [620 cision, it is still thought right to set out the conflicting authorities and leave the matter to the reader's judgment. The opinion to which Lord Eldon at least inclined, and which was expressed by Lord St. Leonards and Lord Romilly, is, we believe, generally received as the better one. The weight of American authority seems to be on the same side.^® In favour of treating inadequacy of Contra, consideration as a ground for refus- ing specific performance. Young v. Clark (1720) Pre. Ch. 538. Saville v. Saville (1721) 1 P. Wms. Collier v. Brown (1788) 1 Cox 428, 745. 1 R. R. 70. Underwood v. Hiichcox (1749) 1 Ves. Sr. 279. Other cases of the early part of the 18th century cited from MS. in Howell V. Oeorge (1815) 1 Madd. p. 9, note (1) . Day V. Neirman (1788) 2 Cox 77, Anon. Cited in Mortimer v. Capper see p. 80, and ad fin., 2 R. R. 1, 4; (1782) 1 Bro. C. C. 158 (sale of an the question of damages if an action missed without prejudice to an ac- f or specific performance is brought in tion: Tamplin v. James (1880) 15 a case such that under the old prac- Ch. Div. 215. tice the bill would have been dis- f^fy Although there are dicta and eases in this country to the effect that in- adequacy of consideration not amounting to evidence of fraud may be a ground for refusing specific performance. Espert v. Wilson, 190 111. 629; Powers V. Hale, 25 N. H. 145; Eastman v. Plumer, 46 N. H. 464; Osgood V. Franklin, 2 Johns. Ch. 1, 23; Seymour v. Delancy, G Johns. Ch. 222: Knobb V. Lindsay, 5 Ohio, 468, 472; Clitherall v. Ogilvie, 1 Dess. 250; Gasque V. Small, 2 Strobh. Eq. 72. The great weight of authority is in favor of the rule that inadequacy of consideration when urged as a defense against specific performance stands upon the same ground as when presented as a reason for avoiding a contract. Supra, pp. *616-*618; Cathcart v. Robinson, 5 Pet. 264, 271; January v. Martin, 1 Bibb, 586; Garnett v. Macon. 2 Marsh. Dec. 185, 246; Wollums r. Horsley, 14 Ky. L. Rep. 642; Shepherd v. Bevin. 9 Gill, 32; Young v. Frost, 5 Gill, 287, 313; Railroad Co. r. Babeock, 6 Met. 346; Lee r. Kirby, 104 Mass. 420: New England Trust Co. r. Abbott, 162 Mass. 148, 155; O'Brien v. Boland. 166 Mass. 481; Harrison v. Town, 17 Mo. 237; Ready r. Noakes, 29 N". J. Eq. 497: Shaddle v. Disbrough, 30 N. J. Eq. 370, 384; Viele v. Railroad Co., 21 Barb. 381; Losee v. Morey, 57 Barb. .501; Se^Tiiour v. Delancy, 3 Cow. 445, revg. S. C, 6 Johns. Ch. 222; Woodfolk r. Blount, 3 Havw. 147; Fripp v. Fripp. Rice's Eq. 84; Sarter v. Gordon, 2 Hill Ch. 121; White r. Thompson, 1 Dev. & Bat. Eq. 493; Hale r. Wilkinson. 21 Graft. 75; Talley v. Robinson's Assignee, 22 Gratt. 888; White V. McGannon, 29 Gratt. 5li. 48 754 DURESS AND rXDUE INFLUENCE. the case was of a sale at a great over- value (nearly double the real value), and there were cross suits for specific performance and for rescission. There was nothing to show fraud, but it was considered " too hard a bargain for the Court to assist in."' Both bills were dismissed. White V. Damon (1802) 7 Ves. 30, 6 R. R. 71, before Lord Rosslyn. In Wedgwood v. Adams (1843) 6 Beav. 600, 606, specific performance was not enforced against trustees for sale, when the contract (as the Court inclined to think, but with some doubt whether such could have been the real intention of the parties) bound them personally to exonerate the 621] estate from incum*brances, and it was doubtful whether these did not exceed the amount of the purchase money. But this was not like the ordinary case of an agreement be- tween a purchaser and a vendor in his own right, since the trustees un- dertook a personal risk without even the chance of any personal advantage. Faine v. Brown (1750) before Lord Hardwicke, cited 2 Ves. Sr. 307, and referred to by Lord Langdale in Wedgwood v. Adams, was a peculiar case: the hardship was not in any inadequacy of the purchase-money, but in the fact that the vendor would lose half of it by the condition on which he was entitled to the prop- erty. In Falcke v. Gray (1859) 4 Drew. 651, 29 L. J. Ch. 28, there was some- thing beyond mere inadequacy: the agreement was for a purchase at a valuation, and there was no valua- tion by a competent person. V.-C. Kindersley however expressed a dis- tinct opinion that specific perform- ance ought to be refused on the mere ground of inadequacy, even if there were none other, relying chiefly on White v. Damon and Day v. yewmun. He referred also to Yaughan v. Thomas (1783) 1 Bro. C. C. 556 (a not very intelligibly reported case, where the agreement was for the re- purchase of an annuity: the state- ment of the facts raises some sus- picion of fraud): — to Henthcntr v. Pnignon (1787) 2 Bro. C. C. 167 (but this and other cases there cited allotment to be made by Inclosure Commissioners ; value unascertained at date of contract). White V. Damon (1802) 7 Ves. 30,. 34, 6 R. R. 71, 75, on re-hearing be- fore Lord Eldon (but limited to sales by auction) . Coles V. Trecothick (1804) 9 Ves. 234. 246, 7 R. R. 167, 175, per Lord Eldon : " Unless the inadequacy of price is such as shocks the conscience, and amounts in itself to conclusive and decisive evidence of fraud in the transaction, it is not itself a suffi- cient ground for refusing a specific performance." Western v. Russell (1814) 3 Ves. & B. 187, 193, 13 R. R. 178. Borell V. Dann (1843) 2 Ha. 440,. 450, per Wigram V.-C. Abbott V. Reorder (1852) 4 De G. & Sm. 448. 461: per Lord St. Leon- ards, " the undervalue must be such as to shock the conscience " [i.e. as to be sufficient evidence of fraud : cp. Lord Eldon's dictum supra]. Sir Edward Fry, writing in 1858, considered this to be " the well estab- lished principle of the Court" (On Specific Performance, § 281): and this is substantially repeated in the second and third editions ( 3rd ed. 1892. p. 206) notwithstanding the case of Falcke v. Gray, which is said to " break the recent current of au- thorities." Bavwood v. Cope (1858) 25 Beav. 140, i53, 27 L. J. Ch. 468. EXPECTANT HEIRS AND REVERSIONERS. 755 in the reporter's notes prove too much, for they are authorities not for re- fusing specific performance, but for actually setting aside agreements on the ground of imdervalue *alone, [622 which we have seen is contrary to the modern law): — and to Kien v. Stukeley (1722) 1 Bro. P. C. 191, where specific performance was re- fused by the House of Lords, revers- ing the decree of the Exchequer in equity (but on another ground, the question of value being " a very doubtful point among the Lords," S. C. Gilb. 155 nom. Keen v. Stuckley) . The decisions in Costigan v. Hastier (1804) 2 Sch. & L. 160, and Howell V. George (1815) 1 Madd. 1, 15 R. R. 203 (though the dicta go farther), show only that a man who has con- tracted to dispose of a greater inter- est than he has will not be compelled to complete his title by purchase in order to perform the contract. A brief notice of the French law on the head of captation (partly corresponding to our Undue Influence), will be found in the Ap- pendix (t). Exceptional cases of expectant heirs and reversioners. We have still to deal with an important exceptional class of cases. That which may have been a discretionary influence when the discretion of courts of equity was larger than it now is has in these cases become a settled presumption, so that fraud, or rather undue influence, is " presumed from the circumstances and condition of the parties contracting '" (u). The term " fraud " is indeed of common occurrence both in the earlier (ii) and in the later authorities: but "fraud does not here mean deceit or circumvention; it means an unconscientious use of the power arising out of these circumstances and conditions " (x) : *and this does not come within the proper meaning of fraud, [623 which is a misrepresentation (whether by untrue assertion, suppression of truth or conduct) made with the intent of creating a particular ( t ) Note L. or several species of fraud : " but the (w) Lord Hardwicke in Chester- phrase as to presumption is almost field V. Janssen (1750-1) 2 Ves. Sr. literally repeated, and it is obvious at p. 125, classifies this in general that these cases really come under terms as "a third kind of fraud:" his third head. he proceeds (at p. 157) to make a (a;) Per Lord Selborne, Earl of separate head of catching bargains, Ai/lrsford v. Morris (1873) L. R. 8 as " mixed cases compounded of all Ch. 484. 491, 42 L. J. Ch. 546. 75G DURESS AND UNDUE INFLUENCE. wrong belief in the mind of the party defrauded. Perhaps the best word to use would be "imposition/^ as a sort of middle term between fraud, to which it comes nearer in popular language, and compulsion, which it suggests by its etymology. The class of persons in dealing with whose contracts the Court of Chancery has thus gone beyond its general principles are those who stand, in the words of Sir George Jessel, " in that peculiar position of reversioner or remainderman which is oddly enough described as an expectant heir. This phrase is used, not in its literal meaning, but as including every one who has either a vested remainder or a contingent remainder in a family property, including a remainder in a portion as well as a remainder in an estate, and every one who has the hope of succession to the property of an ancestor — either l)y reason of his being the heir apparent or presumptive, or by reason merely of the expectation of a devise or bequest on account of the supposed or presumed affection of his ancestor or relative. ]\Iore than this, the doctrine as to expectant heirs has been extended to all reversioners and remainderman, as appears from Tottenham v. Eriiniet (y) and Earl of Aylesford v. Morris {z). So that the doc- trine not only includes the class I have mentioned, who in some })opular sense might be called expectant heirs, but also all remainder- men and reversioners" (a). Motives for exceptional treatment. The Act 31 Vict., c. 4 modified the practice of the Court of Chancery (which now continues in the Chancery Division) less than might be supposed: it is therefore neces- sary to give in the first place a connected view of the whole doctrine a? it formerly stood. 624] 1. Presumption of fraud. It was considered that *persons rais- ing money on their expectancies were at such a disadvantage as to be peculiarly exposed to imposition and fraud, and to require an ex- traordinary degree of protection {h) : 2. Public policy as to welfare of families. And it was also thought right to discourage such dealings on a general ground of public policy, a?: tending to the ruin of families (c) and in most cases involving " a (!/) (18G5) 14 W. R. 3. Sir W. Grant in Peacock v. Evans (z) (1873) L. R. 8 Ch. 484, 42 L. (1809) 16 Ves. at p. 514, 10 R. K. J. Ch. .546. 218, 220. (a) Bcynon v. Cook (1875) L. R. (c) Twisleton v. Criffith (1716) 1 10 Ch. 391, n. P. Wms. at p. 312; Cole v. Gibbons, (h) "A degree of protection ap- 3 P. Wms. at p. 293; Chesterfield v. preaching nearly to an incapacity to Janssen (1750-1) 2 Ves. Sr. at p. 158. bind themselves by any <:ontract:" REVERSIONARY INTERESTS. 757 port of indirect fraud upon the heads of families from whom, these transactions are concealed" (d). 3, Evasion of usury laws. Moreover laws against usury were in force at the time when courts of equity began to give relief against these "catching bargains"' as they are called (c) ; any transactions which looked like an evasion of those laws were very narrowly watched, and it may be surmised that when they could not be brought within the scope of the statutes the Courts felt justified in being astute to defeat them on any other grounds that could be discovered (/). Extension of the doctrine. The doctrine which was at first intro- duced for the protection of expectant heirs was in course of time ex- tended to all dealings whatever with reversionary interests.^'^ In its finally developed form it had two branches : — *1. As to reversionary interests, whether the reversioner were [625 also an expectant heir or not : A. The rule of law that the vendor might avoid the sale for under- value alone; (d) Per Lord Selborne, Earl of But hi Ardglassex. Muschamp (IQSi) Aylcsford v. Morris ( 1873 ) L. R. 8 1 Vern. 238, it is said that many Cli. 484, 492, 42 L. J. Ch. 546; Ches- precedents from Lord Bacon's, Lord terfield v. Janssen (1750-1) 2 Ves. Ellesmere's, and Lord Coventry's Sr. 124, 157. times were produced. (e) In Wiseman v. Beake, 2 Vern. (f) The reports of the cases on 121, it appears from the statement of this head anterior to Chesterfield v. the facts that twenty years or there- Janssen are unfortunately so meagre abouts after the Restoration this that it is difficult to ascertain whether jurisdiction was regarded as a nov- they proceeded on any uniform prin- elty: for the defendant's testator ciple. But the motives above alleged •' understanding that the Chancery seem on the whole to have been those began to relieve against such bar- which determined the policy of the gains " took certain steps to make Court. On the gradual extension of himself safe, but witliout success, the the remedy cp. the remarks of Bur- Court pronouncing them " a contriv- nett J. in Chesterfield v. Janssen ance only to double hatch the cheat." ( 1750-1 ) 2 Ves. Sr. at p. 145. 57 The English doctrine, in so far as it relates to vested interests, has been denied to be in force in this country. Cribbins v. Markwood, 13 Graft. 495; Mays V. Carrington, 19 Graft. 74; Davidson v. Little, 22 Pa. 245, 252. "A court of equity will not, in the absence of fraud or undue influence, in- terfere to set aside a sale by a legatee of a legacy of a fixed and certain sum of money, payable at a fixed period after the death of the testator, with in- terest, although such sale was made some years before the legacy was due, and for an inadequate consideration ; and although the legatee was at the time of the sale a ' reckless, dissipated, improvident, and weak-minded young man.' Such a sale is not within the equity rule, which enables the court to relieve expectant heirs, remaindermen, and reversioners, from disadvantageous bargains, where both the amount or value of the interest sold, and tlie time of its enjoyment are uncertain." Pariuelee r. Cameron, 41 N. Y. 392. Cp. Butler V. Duncan, 47 Mich. 94, stated infra, p. 761, n. 59. 758 DITEESS AND UNDUE INFLUENCE. B. The rule of evidence that the burden of proof was on the pur- chaser to show that he gave the full value. It is this part of the doctrine that is changed by the Act 31 Vict. c. 4. 2. As to " catching bargains " with expectant heirs and remainder- men or reversioners in similar circumstances, i.e. bargains made in substance on the credit of their expectations, whether the property in expectancy or reversion be ostensibly the subject-matter of the transaction or not (g) : The rule of evidence that the burden of proof lies on the other contracting party to show that the transaction was a fair one. We use the present tense, for neither the last-mentioned Act nor the repeal of the usury laws, as we shall see presently, has made any change in this respect. Former doctrine as to sales of reversionary interests. The part of the doctrine which is abrogated was intimately connected both in prin- ciple and in practice with that which remains; and though it seems no longer necessary to go through the authorities in detail, it may still be advisable to give some account of the manner in which it was applied (h). The general rule established by the cases was that the purchaser was bound to give the fair market price, and to preserve abundant evidence of the price having been adequate, however difficult it might be to ascertain what the true value was. It was applied to rever- sionary interests of every kind, and the vendor was none the less en- titled to the benefit of it if he had acted with full deliberation. The presumption originally thought to arise from transactions of this kind had in fact become transformed into *an inflexible rule of law, [626 which, consistently carried out, made it well-nigh impossil)le to deal with reversionary interests at all. The modern cases almost look as if the Court, finding it too late to shake off the doctrine, had sought to call the attention of the legislature to its inconvenience by ex- treme instances. Sales were set aside after the lapse of such a length of time as 19 years, and even 40 years (?'). A sub-purchaser who bought at a considerably advanced price was held by this alone to have notice of the first sale having been at an undervalue (k). (g) Earl of Aylesford v. Morris (?) fit. Alhan v. Harding (1859) (1873) L. Pv. 8 Ch. at p. 497. 27 Beav. 11: .Salter v. Bradshaw (h) A digest of the cases was given (1858) 26 Beav. 161. in the first two editions (p. 550. 2nd (/,-) Xr.shiif v. Berridge (18G3) 32 cd.). Beav. 280. CATCHING BARGAIXS. 759 In one case where the price paid was 200/., and the true value as estimated by the Court 238/., the sale was set aside on the ground of this undervalue, though the question was only incidentally raised and the plaintiff's case failed on all other points (/). Act to amend the law relating to sales of reversions, 31 Vict. c. 4. Finally Parliament found it necessary to interfere, and in 1867, ty the " Act to amend the law relating to sales of reversions," 31 Vict. c. 4, it was enacted (s. 1) that no purchase (defined by s. 2 to include ■every contract, &c., by which a beneficial interest in property may be acquired), made bona fide and without fraud or unfair dealing of any reversionary interest in real or personal estate, should after January 1, 1868 (s. 3), be opened or set aside merely on the ground of undervalue. The Act is carefully limited to its special object of putting an end to the arbitrary rule of equity which was an impedi- ment to fair and reasonable as well as to unconscionable bargains. It leaves undervalue still a material element in cases in which it is not the sole equitable ground for relief (m). General rules of equity as to "catching bargains" unaffected. It had •already been decided (n) that the repeal of the usury laws (0) did not alter the general rules of the Court *of Chancery as to deal- [627 ings with expectant heirs. This decision was followed in Miller v. Cook (p), and adhered to in Tyler v. Yates (q), and lastly in Earl of Aylesford v. Morris (r) and Beynon v. Cooh (s), and in the two latter cases it has been clearly laid down that the rules are in like {I) Jones V. RickeUs (1862) 31 the subject. It should be observed Beav. 130, 31 L. J. Ch. 753. that in Tyler v. Yates a principal (m) Earl of Aylesford v. Morris and surety made themselves liable (1873) L. R. 8 Ch. at p. 490. See for a bill which the principal had ac- also O'Rorlce v. Bolingbroke ( 1877) 2 cepted during his minority, without App. Ca. 814; Fry v. Lane (1888) 40 knowing that there was no existing Ch. D. 312, ,58 L. J. Ch. 113. legal liability on the bill, and all the (n) Croft V. Graham (1863) 2 D. subsequent transactions were bound J. & S. 155. up with this: and the case was rested (o) 17 & 18 Vict. c. 90. But be- on this ground in the Court of Ap- fore this complete repeal exceptions peal (p. 671). Cp. on this point had been made from the usury laws Coioard v. Hughes (1855) 1 K. & J. in favour of certain bills of exchange 443, where a widow who during her and loans exceeding 10?. not secured Inisband's life had joined as surety on land: 3 & 4 Will. 4, c. 98, s. 7, 2 in his promissory note executed a & 3 Vict. c. 37, s. 1. and comments new note under the impression that thereon in Lane v. Horlock (1855) 5 she was liable on the old one, and H. L. C. 480, 25 L. J. Ch. 253. without any new consideration, and (p) (1870) L. R. 10 Eq. 641, 40 the note was set aside; see fSniithall L. J Ch 11 V. Rigg (1851) and Forman y.Wriqht (q) (i87i) L. R. 11 Eq. 265, L. R. (1851) 11 C. B. 481, 20 L. J. C. P. 6 Ch. 665. 40 L. J. Ch. 768. 145. (r) L. R. 8 Ch. 484: this may now (s) (1875) 10 Ch. 389. be regarded as the leading case on 760 DURESS AND UNDUE INFLUENCE. manner nnaffocted by the change in the law concerning sales of reversions. And this was confirmed by all the opinions delivered in O'Rorke v. Bolingbroke (t) in the House of Lords, though the par- ticular transaction in dispute was upheld. The eifect of these rules is not to lay down any proposition of substantive law, but to make an exception from the ordinary rules of evidence by throwing upon the party claiming under a contract the burden of proving not merely that the essential requisites of a contract, including the other party's consent, existed, but also that the consent was perfectly free. Conditions throwing burden of proof on lender. The question is there- fore, what are " the conditions which throw the burden of justifying the righteousness of the bargain upon the party who claims the benefit of it" (u). Now these conditions have never been fixed by any positive authority. We have seen that the Court of Chancery has refused to define fraud, or to limit by any enumeration the standing 628] rela*tions from which influence will be presumed. In like man- ner there is no definition to be found of what is to be understood by a " catching bargain." This being so we can only observe the conditions which have in fact been generally present in the bargains against which relief has been given in the exercise of this jurisdic- tion. These are: — 1. A loan in which the borrower is a person having little or no property immediately available, and is trusted in substance on the credit of his expectations. Obs. It is immaterial whether there is or not any actual dealing with the estate in remainder or expression of the contingency on which the fund for payment of the principal advanced substantially depends. Earl of Aylesford V. Morris (1873) L. R. 8 Ch. at p. 497. It is also immaterial whether any particular property is looked to for ultimate payment. A general expecta- tion derived from the position in society of the borrower's family, the lender intending to trade on their probable fear of exposure, may have the same effect, yevill r. 8nelling (1880) 15 Ch. D. 679, 702, 49 L. J. Ch. 777 (Denman .J.). 2. Terms prima facie oppressive and extortionate {i.e. such that a man of ordinary sense and judgment cannot be supposed likely to give his free consent to them). Ohs. An excessive rate of interest is in itself nothing more than a dispro- portionately large consideration given by the borrower for the loan : and it is not sufficient, standing alone, to invalidate a contract in equity: ^Vrhsfrr V. Coolc (1867) L. R. 2 Ch. 542, where a loan at 60 per cent, per annum was upheld. Stuart V.-C. disapproved of the case in Tyler v. Yates (1871) [t) (1877) 2 App. Ca. 814. (if) Earl of Aylesford v. Morris (1873) L. R. 8 Ch. at p. 492. CATCHING BARGAINS. ' 761 L. R. 11 Eq. at p. 276, but on anothor point. And see Parker v. Butcher (18G7) L. R. 3 Eq. 762, 767, 38 L. J. Ch. 552.58 3. A considerable excess in the nominal amount of the sums ad- vanced over the amount actually received by the borrower.^^ Ohs. This appears in all the recent cases in which relief has been given: deductions being made on every advance, according to the common practice of professed money-lenders, under the name of discount, commission, and the like. The result is that the rate of interest appearing to be taken does not show anything like the terms on which the loan is in truth *made: [629 and this may be considered evidence of fraud so far as it argues a desire on the part of the lender to gloze over the real terms of the bargain. A jury could, perhaps, not be directed so to consider it in a trial where fraud was distinctlj'^ in issue ; though no doubt such circumstances, or even an exorbitant rate of interest, would be made matter of observation. 4. The absence of any real bargaining between the parties, or of any inquiry by the lender into the exact nature or value of the borrower's expectations. Ohs. These circumstances are relied on in Earl of Aylesford v. Morris (1873) L. R. 8 Ch. at p. 496, as increasing the difficulty of upholding the transaction: cp. Islevill v. Smiling (1880) 15 Ch. D. at pp. 702-3. This again is the usual practice of the money-lenders who do this kind of busi- ness. Their terms are calculated to cover the risk of there being no security at all ; moreover the borrower often wishes the lender not to make any inquiries which might end in the matter coming to the knowledge of the ancestor or other person from whom the expectations are derived. The concealment of the transaction from the ancestor was held by Lord Brougham in Kiuq V. Enmlct (1835) 2 M. & K. 456, 39 R. R. 24, 237, to be an indis- pensable condition of equitable relief; but this opinion is not now accepted: Earl of Aylesford v. Morris (1873 L. R. 8 Ch. at p. 491. The decision in King v. Hamlet (affirmed in the House of Lords, but without giving any reasons, 3 CI. & F. 218, 39 R. R. 24) can be supported on the ground that the party seeking relief had himself acted on the contract he impeached so as to make restitution impossible. It seems safe to assert that in any case where these conditions concur, the burden of proof is thrown on the lender to show that the 58 See Bro\\Ti r. Hall, 14 R. I. 249, where relief was given in respect of a loan secured by mortgage, and bearing interest at the rate of 5 per cent, per month, in advance, the court finding, however, that the relation of the parties was such that the lender had upon him the duty of protecting the borrower. See also Gottlieb r. Thatcher, 34 Fed. Rep. 435. 59 "A dissolute spendthrift of twenty-five years gave a mortgage on all the real estate to which he was entitled as his father's heir, to a man who knew all about the circumstances, to secure the payment of an alleged loan of $5,000, for which he gave his note, and which was made up of the following items: .$1,000 in cash; a former due bill for $47. given up; $199, interest credited on a previous mortgage; $110.35, paid as premium upon an insurance policy assigned to the mortgagee; $556.75. withheld by the latter to pay an- nual premiums thereafter as they shall fall due; and $3,200, as the purchase price of 160 acres of land worth but little more than $1,000, which the mortgagee required him to buy as a condition of lending him any money, tliough he had no use for the land and knew nothing about its value. Held, an unconscionable transaction, which a court of chancery could not sustain." Butler r. Duncan, 47 Mich. 94. 762 DURESS AND UXDUE IXFLUEN'CE. transaction was a fair one : it seems equally unsafe to assert that they must all concur, or that any one of them (except perhaps the first) is indispensable. Can lender so situated ever exonerate himself? It may then be asked, By what sort of evidence is the lender to satisfy the Court that the ])orrower was not imposed on ? As there is no reported case in which it was considered that the burden of proof lay upon the lender, and yet he did so satisfy the Court, it is impossible to give any certain answer to this question. It is evidently most improbable that in any case where the above-mentioned conditions are present, any satisfac- 630] tory evidence should be *forthcoming to justify the lender (x). Practically the question is whether in the opinion of the Court the transaction was a hard bargain (y) — that is, not merely a bargain in which the consideration is inadequate, but an unconscionable bar- gain where one party takes an unfair advantage of the other (z). This jurisdiction is of considerable importance in British India, and especially in the Xorth-West Provinces, which have furnished an interesting line of cases (a). An account stated for the purpose of a contract of this description is of no more validity than the contract itself, and a recital of it in the security does not preclude the borrower from re-opening the account even as against purchasers or sub-mortgagees of the original lender who have notice of the general character of the transaction. For such notice is equivalent to notice of all the legal consequences (&). Terms on which relief is given. The borrower who seeks relief against n contract of this description must of course repay whatever sums have been actually advanced, with reasonable interest (according to (x) " No attempt has been made to (a) See Kunicar Ram Lai v. Xil show by any independent evidence Kanth, L. R. 20 Ind. App. 112; (if such a thing could be conceived Rajah Mokham Hingh v. Rajah Rup poasihle) that the terms thus im- Singh, ib. 127, and cp. note (c), p. posed on the plaintiff were fair and 345, above, and the present writer's reasonable," L. R. 8 Ch. 496. Law of Fraud. &c.. in British India iy) See the judgment of the M. R. (Tagore Law Lectures, 1893-4) pp. Bei/non v. Cook (1875) L. R. 10 Ch. 77 — 79. SOi. n., and yevill v. Snelling (1880) (fc) Tottenham v. Green (1863) 32 15 Ch. D. at p. 703. L. J. Ch. 201: a case decided under (z) Per Jessel M.R. in Middleton the old rule as to dealings with re- \. Broicn (C. A.) (1878) 47 L. J. Ch. versionary interests, but the princi- 411; yevill v. Snelling (1880) 15 Ch. pies seem applicable in all cases where D. 679. 49 L. J. Ch. 777. where the the burden of proof is still on the lender systematically took advantage lender, of a mistaken over-payment of inter- est bv the borrower. CATCHING BARGAINS. 7G3 the usual practice of the Court, 5 per cent.), and the relief is granted only on those terms. Moreover it is held not unjust that he should obtain it at his own expense, since he calls in the assistance of the Court to undo the con*sequences of his own folly (c) : and ac- [631 el the Court to Terry. 25 Conn. 395); Tague v. Hayward, 25 Ind. 427; King r. Welcome, 5 Gray, 41; Freeman r. Foss, 145 Mass. 301. And see Bernier v. Cabot Mfg. Co.. 71 Me. 506; Fuller v. Rice, 52 Mich. 435; Draheim v. Evison, 112 Wis. 27. 30 This doctrine is confined to courts of equity. See Ames' Cas. Eq. Jur, 314, n. 3; Kling r. Bordncr, 65 Ohio St. 86. 31 See also Hodson r. Heuland, [1896] 2 Ch. 428; Riggles v. Ernev, 154 U. S. 224; Harman r. Harman. 70 Fed. Rep. 894; Cooley v. Lobdell. 153* X. Y. 596: Shahan v. Swan, 48 Ohio St. 25, 38: Scott v. Lewis, 40 Oreg. 37. 32 See Pomeroy on Spec. Perf., §§ 112-114; Townsend r. Vanderwerker, 160 U. S. 171; Cooley v. Lobdell, 153 N. Y. 596. Services rendered were held insufficient in Edward r. Estelle, 48 Cal. 194, 196;Crabill v. Marsh, 38 Ohio St. 331; Kling r. Bordner, 65 Ohio St. 86. See also Maddison v. Alderson, 8 A. C. 467. But see contra, Sharkey r. McDermott, 91 :\ro. 647 (see also Kinney r. Murrav. 170 Mo. 674) ; Davison r. Davison. 13 N. J. Eq. 246; Rhodes r." Rhodes, 3 Sandf. Ch. 279; Lothrop r. Marble, 12 S. Dak. 511. 33 See Franke r. Riggs, 93 Ala. 252; Spear r. Orendorf, 26 Md. 37: Sim- mons r. Headlee, 94 Mo. 482; Gallagher r. Gallagher, 31 W. Va. 9; Conner f. Fitzgerald, 11 L. R. Ir. 106. PART PERFORMANCE. 791 part performance is not in *direct contradiction of the Statute [656 of Frauds. It would be erroneous to say that a court of equity accepts proof of an oral agreement and part performance of a substitute for the evidence required by the statute. The plaintiff's right in the first instance rests not on contract but on a principle akin to estoppel ; the defendant's conduct being equivalent to a continuing statement to some such effect as this : It is true that our agreement is not binding in law, but you are safe as far as I am concerned in acting as if it were. A man cannot be allowed to set up the legal invalid- ity of an agreement on the faith of which he has induced or allowed the other party to alter his position (/i).^ In the law of Scotland such facts are said to "raise a personal exception" (i). The same principle of equity is carried out in cases of representation independ- ent of contract (see pp. *659, *660, below) and even of mere acquies- cence. In equity an owner may be estopped by acquiescence from asserting his rights, although there has not been any agreement at all (k).^^ This also explains why the plaintiff must show part per- admit evidence of the terms of the law are compared by Lord Cran- contract in order that justice may worth in Jorden v. Money (1854) 5 be done between the parties"; to H. L. C. 185, 213, 23 L. J. Ch. 865; same effect Cotton L.J. in Britain v. and by Lord Campbell in Piggott v. Rossiter (1870) 11 Q. B. Div. at p. Stratto7i (1859) 1 D. F. & J. 33, 49, 29 131. This holds even where the pos- L. J. Ch. 1. It must be admitted, session was taken before the agree- however, that the recent authorities ment was concluded: Hodson V. do not exhibit a very definite or set- Heuland [1896] 2 Ch. 428, 65 L. J. tied theorv. Ch. 754. (i) Bell, cited by Lord (Selborne, 8 (h) Caton V. Caton (1865) L. R. App. Ca. 476. 1 Ch. at p. 148, 35 L. J. Ch. 292; (k) See Ramsden v. Dyson (1865) MorpJiett V. Jones (1818) 1 Swanst. L. R. 1 H. L. 129, 140, 168; Poicell at p. 181, 18 R. R. p. 54; Dale V. v. Thomas (1848) 6 Ha. 300: and Hamilton (1846) 5 Ha. at p. 381; the remarks of Fry J. in Wilhnott accordingly the cases on estoppel at v. Barber (1881) 15 Ch. D. 96, 105. 34 Williams v. Morris, 95 U. S. 444, 457; Tate r. Jones, 16 Fla. 216, 242; Temple v. Johnson, 71 111. 13; Morrison r. Herrick, 130 111. 631; Edwards r. Fry, 9 Kan. 417; Green r. Jones, 76 Me. 563; Woodburv v. Gardner, 77 Me. 68; Bennett r. Dyer, 89 M^. 17; Semnics v. Worthington. 38 Md. 298, 327; Glass v. Hulbert, 102 Mass. 24; Potter r. Jacobs, 111 Mass. 32, 37; Jorgensen V. Jorgensen, 81 Minn. 428; Bro^^^l v. Brown, 33 X. J. Eq. 650; Nibert v. Baghurst, 47 N. J. Eq. 201; Freeman r. Freeman, 43 N. Y. 34; Beardsley r. Duntlev, 69 N. Y. 577; Armstrong r. Kattenhorn, 11 Ohio, 265, 271; Wright r. Puckett, 22 Graft. 370. 35 Foster r. Bear Valley Co., 65 Fed. Rep. 836; Blake v. Cornwell. 65 Mich. 467 ; Slingerland r. Slingerland, 39 Minn. 197 ; Railroad Co. r. Ragsdale, 54 Miss. 200 ; Dellett r. Kemble, 23 N. J. Eq. 58 ; Sumner v. Seaton, 44 N. J. Eq. 103; Brown v. Bowen, .30 N. Y. 519, 541, 544; Burkard l'. Crouch, 169 N. Y. 399 ; Brooks r. Curtis, 4 Lans. 283 ; Quinlan r. Myers, 29 Ohio St. 500 : Curtis r. La Grande Water Works, 20 Oreg. 34; Marines r. Goblet, 31 S. C. 153; Wampol V. Kountz, 14 S. Dak. 334; Stone v. Tyree, 30 W. Va. 687. See also Peek v. Peek, 77 Cal. 107. 792 AGREEMENTS OF IMPERFECT OBLIGATION. formaiice on his own side, and part performance by the defendant would be immaterial (l).^ When the Court is satisfied that the plaintiff has altered his position on the faith of an agreement, and that the defendant cannot be heard to deny the existence of thut agreement, it proceeds to ascertain by the ordinary means what the terms of the agreement were. The proof of this is strictly collateral 657 ] to *the main issue, though the practical result is that the agree- ment is enforced. D. Ante-nuptial agreements. The case of an agreement in considera- tion of marriage presents special difficulties. a.nd has to be treated in an exceptional manner. This subject is fully discussed in the late Mr. Davidson's volume on settlements (Dav. Conv. vol. 3, part 1, appendix Xo. 1, to which place the reader is referred for details). It is thoroughly settled that the marriage itself does not constitute such a part performance as to make the agreement binding in equity in the manner just mentioned, though other acts may have that effect (m).37 Effect of confirmation by post-nuptial writing. The next question is, what is the effect of a post-nuptial " note or memorandum " satisfying the requisites of the statute on ante-nuptial informal agreement? The authorities are not very clear on this point. It is submitted however that if attention be given to the actual decisions rather than to the language used on various occasions, little or no real conflict will be found. It is not the Statute of Frauds alone that has to be considered in these cases, but also the statute of 13 Eliz. c. 5. and the extensive application of it by judicial construction to voluntary dispositions of property. Two distinct questions are in fact raised: namely whether an informal ante-nuptial agreement can after the marriage be rendered valid as against the promisor, and whether a post-nuptial settlement can be made to relate back to such an agreement so as to be deemed a settlement made for valuable con- sideration and thus be rendered valid as against creditors. (I) Caton v. Caton, note [h) . come v. Piiiniger (18.53) .3 D. M. & G. (»j) See Lassence v. Tierney 571. 57"). 22 L. .J. Ch. 419. (1849) 1 Mac. & G. 551, 571; 8ur- 36 Glass r. Hiilbert, 102 Mass. 24, 31; Luckett v. Williamson. 37 ]Mo. 38S. 37 See Peek v. Peek, 77 Cal. 107; Moore v. Allen, 20 Col. 197; Bradley r. Sadler, 54 Ga. 081; White r. Bifjelow. 1.54 ]\Iass. 593: Nowack v. Berber, 133 Mo. 24; Manning? r. Rilev. 52 N. J. Eq. 39; Russell r. Eussell, 00 N. J. Eq. 282: Finch r. Finch, 10 Ohio St. .501: Henry r. Henry. 27 Ohio St. 121; Adams r. Adams. 17 Oreg. 248; Flory r. Hauck, 'l86 Pa. 263. AGREEMENTS IN COXSIDEKATION OF MAKKIAGE. 793 Good as against promisor: Barkworth v. Young. The first question is answered in the affirmative by the decision in Barkwurth v. Young \n).^ The case was decided on (h'nmrrer, and the facts assumed by the Cdlirt on the case made by the ph^intiff's bill were to tliis effect. The testator against whose estate the suit was brought had *orally [658 promised his daughter's husband before and in consideration of the marriage that at his death she should have an equal share of his property with Ids other children. After the marriage the testator made an affidavit in the course of a litigation unconnected with this agreement, in which he incidentally admitted it. It was held that the affidavit was a sufficient note or memorandum of the agreement VA'ithin the Statute of Frauds, and that as such, although subse- quent to the marriage, it rendered the agreement binding on the testator. Bad as against settlor's creditors: Warden v. Jones. The second ques- tion is answered in the negative by the almost contemporaneous de- cision in Warden v. Jones (o). That was a creditor's suit to set aside a post-nuptial settlement. It was attempted to support the settlement as having been made pursuant to an oral ante-nuptial agreement. This agreement was not referred to in the settlement by any recital or otherwise. It was held both by Eomilly M.E., and l^y Lord .Cran- worth C. on appeal, that the settlement could not be supported : and Lord Cranworth inclined to think {p) that if the settlement had ex- pressly referred to the agreement it would have made no difference. It has now been held, following this decision, that a post-nuptial set- tlement reciting a parol ante-nuptial agreement is void against the husband's trustee in bankruptcy {q). The result appears to be that even if the imperfect obligation arising from an informal ante-nuptial agreement can Ijo made perfect and binding as between the parties by a post-nuptial note or memo- randum, the marriage consideration cannot in this way be imported into a post-nuptial settlement made in pursuance of the agreement so as to protect it from being treated as a voluntary settlement and *subject to the consequent danger of being set aside at the [659 (n) (1856) 4 Drew. 1, 26 L. J. Ch. (q) Re Holland [inoi] 2 Ch. 14o, 153. 70 L. J. Ch. 62.5. The judfrnient sug- (o) (1867) 23 Bear. 487. De G. gests that Barkirorth v. Young must & J. 76. 27 L. J. Vh. 190. be treated as entirely overruled, but (p) Notwithstanding Dintdas V. this, it is submitted, is no part of Dutens (1790) 1 Ves. jun. 196. 1 R. the decision. R. 112. 38 Ace. Moore r. Harrison. 26 Ind. App. 408; Brinkley r. Brinkley, 128 N. C. 503. But see McAnnulty v. McAnnulty, 120 111. 26. 794 AGREEMENTS OF IMPERFECT OBLIGATION". 6uit of the settlor's creditors. There seems to be no ground in either case for drawing any distinction between promises made by one of the persons to be married and promises made by a third person to either of them. These doctrines appear to be both reasonaljle in themselves and not inconsistent with one another. There is nothing unexampled in a transaction being valid as regards the parties to it and invalid as regards the rights of other persons. It is diffi- cult to see why a writing satisfying the requisites of the statute should in this case be deprived of its effect as against the party to be charged merely by reason of the marriage having taken place between the dates of the original promise and of the writing. On the other hand the rights of creditors would be in serious danger if a mere reference to the ante-nuptial agreement, of which there was no evidence beyond the memory of the persons who for this purpose would have a common interest in upholding its existence, were to be admitted to make a post-nuptial settlement unimpeachable (r).^ E. Informal agreement as defence. It is doubtful how far an in- formal agreement varying a perfect one can be relied on as a defence to an action brought on the original agreement. On principle it would seem that an agreement which will not support an action ought not to support a defence (s), and there is good authority to that effect (t) : but a different practice appears to have gained ground of late years (u). (r) Cp. the remarks of Sir T. Voluntary and Fraudulent Aliena- Plumer M.R. in Battersiee v. Far- tions of Property, ch. 5, p. 346 sqq. rington (1818) 1 Swanst. 106. 113, (s) Cp. Chapin v. Freeland (1880) 18 K. R. 32, doubting whether a 142 Mass. 383. recital in a post-nuptial settlement (t) Noble v. Ward (18G7) L. R. 2 of ante-nuptial written articles Ex. 13.5, Ex. Ch. would of itself as aoainst creditors (m) Mr. Ernest C. C. Firth, in L. be sufficient evidence of the existence Q. R. ix. 3G6 — 372. of such articles. And see May on S9 " It seems very idle, not to say frivolous, to attempt any distinction between the case where tlie settlement recites the parol agreement, and wiiere it is made in fulfillment of such contract, but without reciting it." Story Eq. Jur., § '.)S7a ; Satterthwaite r. Emley, 3 Green's Ch. 489; Reade V. Livingston, 3 Johns. Cli. 481. A post-nuptial settlement, made in pursuance of an oral ante-nuptial agree- ment, is, so far as creditors are concerned, a voluntary conveyance. Keady r. White, 168 111. 76; Elwell r. ^Yalker. rr2 la. 256; White r. O'Bannon, 86 Ky. 93; Asher v. Brock, 95 Ky. 270; Winn v. Albert, 5 Md. 66; Deshon r. Wood, 148 Mass. 132: Manning' r. Riley, 52 N. J. Eq. 39; Reade r. Livingston, 3 Johns. Ch. 481; Borst r. Corey, 15 K Y. 505; Florv r. Hauck, 186 Pa, 263; Barnes v. Black. 193 Pa. 447; Izard r. Izard, Bailey's Eq. 228; Smith r. Green., 3 Humph. 118. But in Clark r. ^Nlc^Iahon, 170 Mass. 91, such a conveyance was upheld against creditors, though it made the grantor insolvent on the ground that it did not appear that there was actual fraudulent intent. EQUITABLE ESTOPPEL. 795 Cases of equitable estoppel distinguished. There is yet another class of cases, not resting on contract or agreement at all, in which courts of equity have *compelled persons to make good the representa- [660 tions concerning existing facts (x) on the faith of which they have induced others to act.*^ The distinction is pointed out by Romilly j\I.R. in Warden v. Jones (y) : and the extension of the doctrine to married women shows very forcibly that it has nothing to do with contract or capacity for contracting: for a married woman's in- terest in property, though not settled to her separate use, has re- peatedly been held to be bound by this kind of equitable estoppel (z).*^ B. "Slip" in marine insurance — Acts requiring stamped policy. An- clher curious and important instance, of an imperfect obligation aris- ing out of special conditions imposed on the formation of a complete contract is to be found in the case of marine insurance. In practice the agreement is concluded between the parties by a memorandum called a slip, containing the terms of the proposed insurance and initialed by the underwriters (a). It is the practice of some insurers always to date the policy as of the date of the slip (h). At common law the slip would constitute a binding contract. This however is not allowed by the revenue laws. By the Stamp Act, 1891 (5-4 & 55 Yict. c. 39), s. 93 (c), "A contract for sea insurance (other than such insurance as is referred to in the 55th section of the Merchant Shipping Act Amendment Act, 1862 (d)) [i.e. *against the [661 owner's liability for accidents of the kinds mentioned in s. 54 of that (,r) Per Lord Selborne, Citizens' complete contract of insurance; the Bank of Louisiana v. First 'National burden of proof is on the underwriter Bank of New Orleans (1873) L. R. to show a contrary intention: and f. H. L. 352, 360, 43 L. J. Ch. 269: there is not any implied condition and Maddison v. Alderson (1883) 8 that a policy shall be put forward App. Ca. at p. 473. for sijjnature within a reasonable [y) (1857) 23 Beav. at p. 493: cp. time: Thompson V. Adams (1889) 23 Tenmans v. Williams (1865) L. R. Q. B. D. 361. 1 Eq. 184, 186, 35 L. J. Ch. 283: and {b) See L. R. 8 Ex. 199. see Dav. Conv. 3, 640 — 646. (o) As to stampintr and produc- (z) iSharpr v. Foff (1868) L. R. 4 tion in evidence (which does not Ch. 35: Lush's trusts (1869) ib. 591. affect our present subject), see ss. (a) For the form of this, see L. R. 95 — 97: there i.: a special penaltv of 8 Q. B. 471. 9 Q. B. 420. In the case 100/. instead of the usual 10/.' for of fire insurance, there beinsr no stampin noth- id) Now Merchant Shipping Act. ing to prevent a slip from forming n 1894, s. 506. 40 See Pomerov En. Jur.. § 1294; Ames' Cas. Eq. Jur. 306-309; Scott r. Lane, 66 Pac. Rep. 299 ( Oreg. ) . 41 As to estoppel against married women, see supra, p. 88, n. 34; against infants, supra, p. 82, n. 27. 7<)6 AGREEMENTS OF IMPERFECT OBLIGATION. Act] shall be void unless the same is expressed in a policy of sea insurance." Earlier statutes on the matter now before us were differently worded, and made every contract of insurance " null and void to all intents and purposes "' which was not written on duly stamped paper or did not contain the prescribed particulars. (35 Geo. 3, c. 63, ss. 11, 1-1; ri4 Geo. 3, c. 144, s, 3: the latter statute was expressly pointed, as appears by the preamble, against the practice '' of using unstamped slips of paper for contracts or memorandums of insurance, previously to the insurance being made by regular stamped policies.") It was settled on these statutes that the preliminary slip could not be re- garded as having any effect beyond that of a mere proposal (c) : and it was even held that the slip could not be looked at by a court of justice for any purpose whatever (/"). The change in the language of the modern statute law, which dates from 1807 (g), has given the Courts the opportunity of adopting a more liberal construction with- out actually overruling any former authorities. Modern recognition of the slip. It has now for many years been judici- ally recognized that the slip is in practice and according to the under- standing of those engaged in marine insurance the complete and final contract between the parties, fixing the terms of the insurance and the premium, and neither party can without the assent of the other deviate from the terms thus agreed on without a breach of faith. Accord- ingly, though the contract expressed in the slip is not valid, that is, not enforceable, it may be given in evidence wherever it is, though 662] not valid, material (h). In the case referred *to the slip was admitted to show whether the intention of the parties was to insure goods by a particular named ship only, or by that in which they might be actually shipped, whatever her name might be. A still more important application of the same principle was made in Ccnj v- Patton (i), where it was held that the time when the contract is con- cluded and the risk accepted is the date of the slip, at which time the underwriter becomes bound in honour, though not in law, to execute a formal policy; that the Court, when a duly stamped policy (e) See per Willes J. in Xenos V. except two sections not here relevant, Wickham (1866) L. R. 2 H. L. 296. and on this point substantially re- 314, 36 L. J. C. P. 313; Synith's case enacted. 1)V the Stamp Act, 18U1. (1869) L. R. 4 Ch. 611, 38 L. J. Ch. (h) Per Cur. lonidc.s v. Pacific In- 681. fiurance Co. (1871) L. R. 6 Q. B. 674. [{) See per Blackburn .1. in 685. affd. in Ex. Ch. 7 Q. B. 517, 41 Fisher v. Liverpool Marine Insurance L. ,T. Q. B. 33, 190. Co. (1873) L. R. 8 Q. B. 469, 474, (i) (1872) L. R. 7 Q. B. 304, see 43 L. J. Q. B. 114. further s. c. 9 Q. B. 577, 43 L. J. Q. {g) 30 & 31 Vict. c. 23, repealed, B. 181. UXSTAirPKD I\STltU]MKXTS. 797 is once before it, may look to the slip to ascertain the real date of the contract; and therefore that if a material fact comes to the knowledge of the assured after the date of the slip and before the execution of the policy, it is not his duty either in honour or in law to disclose it, and the non-disclosure of it does not vitiate the policy. This holds though after the completion of the contract by the slip a new term be added for the benefit of the underwriters (A.-). Collateral bearings of the doctrine. The same doctrine has been con- fcidered, and allowed, though not directly applied, in other cases. In Fislier v. Livprpool Marine Insurance Co. (/) the sli]) had been initialed but the insurance company had executed no policy. In tlie case of an insurance with private underwriters it is the duty of the broker of tlie assured to prepare a properly stamped policy and present it for execution. But in the case of a company the policy is prepared by the company, executed in the company's office, and handed over to the assured or his agent on application. It was held that tbiCre was no undertaking by the company, distinguishable from the contract of insurance itself, to do that which it would be the duty of a broker to do in the case of private underwriters; that the only agreement with the company *with the assured was one en- [663 tire agreement made by the initialing of the slip, and that as this was an agreement for sea insurance, the statute applied and made it impossible to maintain any action for a breach of duty with regard to the preparation and execution of a policy. In Morrison v. Uni- versal Marine Insurance Co. (m), the question arose of the effect of delivering without protest a stamped policy pursuant to the slip after the insurers had discovered that at the date of the slip a material fact had been concealed. It was held in the Exchequer Chamber, reversing the judgment of the Court below, that the delivery of the policy did not preclude the insurers from relying on the concealment, ])ut that it was a question properly left to the jury whether they had or liad not elected to abide by the contract. This implies not only that the rights of the parties are determined at the date of the slip, but that the execution of the stamped policy afterwards has little or no other significance than that of a necessary formality (n). (k) Li.'ihman V. Northern Mitritime (m) (1873) L. R. 8 Ex. 40. in Ex. riisurancc Co. (1875) L. R. 8 C. P. Ch. ib. 197, 42 L. J. Ex. 115. 210, affirmed in Ex. Ch. 10 C. P. 170, (n) See the judgment of Cleasbv 44 L. J. C. P. 185. B. in the Court below, L. R. 8 Ex. il) (1874) L. R. 8 Q. B. 469 at p. 60. (Blrtckburn J. dis.s.) affd. in Ex. Ch. 9 Q. B. 418, 43 L. J. Q. B. 114. 798 ACREEMEXTS OF IMrERFECT OBLIGATION. Application in winding up insurance companies. In the case of a mu- tual marine insurance association, a letter by which the assured un- dertook to become members of the association was admitted as part of one agreement with the stamped policy, to show that the assured were contributories in the winding-up of the association (o). In the winding-up of another such association a member has been ad- mitted as a creditor for the amount due on his policy, though un- stamped, when the liability was admitted by entries in the minute books of the association, which seem to have been considered equiva- lent to an account stated (p). Stamp duties in general. It has already been observed that the gen- eral revenue laws as to stamp duties are on a different footing.'*^ However their effects may in one or two cases resemble to some ex- 664] tent those which under the present head we have '^attempted to exhibit. Thus, if an unstamped document combines two characters (as, for instance, if it purports to show both an account stated and a receipt), and if in one of those characters it requires a stamp, and in the other not, it may be given in evidence in the second character for any purpose unconnected with the first (q). Variation by subsequent unstamped agreement. In a case where the parties to an agreement in writing had afterwards varied its term? by a memorandum in writing, and the memorandum was not stamped, the plaintiff joined in his action a count on the agreement in its (o) Bh/th d Co.'s case (1S72) L. (q) Matheson w. Ross (1849) 2 H. R. 13 Eq. 529. L. C. 286. (/)) Martin's claim (1872) L. E. 14 Eq. 148. 41 L. J. Ch. 079. 42 The act of Congress, in force during' and shortly after the Civil War, providing that no instrument or document not duly stamped as required by the internal revenue laws of the United States should be admitted or used as evidence in any court, was generally held by the State courts inapplicable to or not binding upon them. Duffy r. Hobson, 40 Cal. 240 ; Bumps v. Taggart, 26 Ark. .398 ; Griffin v. Ranney, 35 Conn. 239 ; Forchheimer r. Holly, 14 Fla. 239; Latham r. Smith, 45 1*11. 29; Craig v. Dimock, 47 111. 308; Himter v. Cobb, 1 Bush, 239; Wallace r. Cravens, 34 Ind. 534; Carpenter r. Snelling, 97 Mass. 452; Green r. Hohvay, 101 Mass. 243; Moore r. Quirk. 105 Mass. 49; Davis r. Richardson, 45 Miss. 499; Sammons r. Halloway, 21 Mich. 162; Woodward v. Roberts, 58 N. H. 503; People r. Gates, 43 N. Y. 40; Moore r. Moore, 47 N. Y. 467: Stewart r. Hopkins. 30 Ohio St. 502. 525; Sporrer r. Eifler, 1 Heisk. 633: Dailey r. Cohen, 83 Tex. 815; Talley r. Robinson's Assignee, 22 Graft. 888. Contra, Turnpike Co. r. McNamara, 72 Pa. 278. The decisions were similar under the act passed in 1898. Hooper r. Whit- aker, 130 Ala. 324; Slocumb r. Small, 112 Ga. 279; Steeley's Creditors r. Steeley, 23 Kv. L. Rep. 996; Knox r. Rossi, 25 Nev. 96 : People v. Fromme, 35 N. Y.' App. 'Div. 459: Cassidy r. St. Germain, 22 R. I. 53; Plunkett v, Hanseka, 14 S. Dak. 454. UNSTAMPED INSTRUMENTS. 799 original form and another on the agreement as varied: and when it appeared by his own evidence that the memorandum did ma- terially alter the first agreement, but was unavailable for want of a stamp, it was held that he could not fall back on the agreement as it originallj' stood (r). Neither this decision, nor the earlier authorities on which it rested, were referred to in Noble v. Ward (s). Jn that case there was a substituted agreement which was unenforce- able under sect. 17 of the Statute of Frauds (t) : and it was held that as the parties had no intention of simply rescinding the former agreement, that former agreement remained in force. The two cases, if they can stand together, must do so by reason of the dis- tinction between a contract the record of which is unavailable for want of a stamp, and an agreement which cannot be sued on at all if the defendant pleads the statute. Attempt to use unstamped documeni: in a different character. In a much litigated case of Evans v. ProtUero {u), the question arose whether a document purporting to be a *receipt for purchase-money on [665 a sale of land, but insufficiently stamped for that purpose, can be admitted as evidence to prove the existence of an agreement for sale. Jn a series of motions for new trials. Lord Cottenham and Lord St. Leonards took different views. The judges before whom the applica- tions came in the Court of Chancery in the first instance, and those before whom the issues were tried at Cardiff Assizes, were also divided in opinion. The opinion of Lord St. Leonards, who held the docu- ment admissible, has now been recognized as authorative {x). C. Statutory conditions affecting professions, &c. There are also many statutes which impose special conditions on the exercise of particular professions and occupations and the sale of particular kinds of goods. Most of these, however, are so framed, or have been so construed, as (r) Reed v. Deere (1827) 7 B. & justice. See Mr. Ernest C. C. Firth's C. 261, 31 R. R. 190. article in L. Q. R. ix. 366. (s) (1867) L. R. 1 Ex. 117, in Ex. (t) Now repealed and substan- Ch. 2 Ex. 135: but otherwise where tially re-enacted by the Sale of Goods the substituted agreement has been Act, 1893, s. 4. executed in part; for this shows that ()/) (1852) 2 Mac. & G. 319, 1 D. the old one is jjone : Sanderson v. M. & G. 572, 21 L. J. Ch. 772. Orares (1875) L. R. 10 Ex. 234, 44 (x) Ashling v. Boon [1891] 1 Ch. L. J. Ex. 210. There has been a tend- 568. 60 L. J. Ch. 306, where it was ency in some recent cases (not regu- held that an insufficiently stamped larly reported) to depart from Noble promissory note could not be admit- v. Ward. Whether correct or not in ted as a receipt for the consideration law, such a doctrine has nothiufj to money, this being "of the very es- reconimend it in point of substantial sence of the promissory note itself." 800 AGREEMENTS OF IMPEHFKCT OBLIGATION. to have an absolutely prohibitory effect, that is, not merely to take away or sus})end the remedy by action, but to render any transaction in which their provisions are disregarded illegal and void. The prin- ciples applicable to such cases have been considered under the head of Unlawful Agreements. In a few cases, however, there is not anything to prevent a right from being acquired, or to extinguish it when acquired, but only a condition on which the remedy depends.^''^ Of this kind are the provisions of the Act 6 & 7 Vict. c. 73, with respect to attorneys and solicitors, and of the Medical Act, 1858 (31 & 22 Vict. c. 90), with respect to medical practitioners. Attorneys and solicitors — Costs of uncertificated solicitor, how far allowed. By the (S & 7 Vict. c. 73, s. 26, extended by 37 & 38 Vict. c. 68, it is enacted in substance that an attorney or solicitor practising in any court without having a stamped certificate then in force (as pro- 666] vided for by ss. 22-25, and now 23 & *24 Vict. c. 127, ss. 18- 23) shall not be capable of recovering his fees for any business so done by him while uncertificated. This, however, does not make it unlawful for the client to pay such fees if he thinks fit, nor for the solicitor to take and keep them. It has been held that a defeated party in an action who has to pay his adversary's costs is bound by any such payment which has been actually made, and cannot claim to have it disallowed after taxation (y). But, since the Act of 1874 at all events, a successful party whose solicitor was un- certificated cannot recover costs if the objection is made on taxation (z). This ajjjjears to leave untouched an earlier case (a) where it was decided that items for business done by a solicitor while uncertifi- cated must be allowed as against the client in a taxation on the client's own ap])lication ; for the client submits to pay what shall be found due, not only what the solicitor might have sued for, and the debt is not destroyed. Proceedings taken by a solicitor who has not renewed his certificate cannot be on that account set aside as irregular (//). It is said that an attorney can have no lien for busi- ness done !)>• him while uncertificated (c). But the case cited for this ((/) wa< on the earlier Attorneys Act, 37 Geo. 3, c. 90, by which iv) FiiUalore \. Parker (18G2) 12 (b) Sparling v. Brereton (1866) C. B. X. S. 246, 31 L. J. C. P. 2.39. L. E. 2 Eq. 64. 35 L. J. Ch. 461. 240. (c) Chitty's Archbold's Pr. 69, ed. iz) Foicler v. Monmouthshire Ca- 1866. nal Co. (1879) 4 Q. B. D. 334, 48 L. {d) Wilton v. Chambers (1837) 7 J. Q. B. 4.57. A. & E. 524. (a) Re Jones (1869) L. R. 9 Eq. 63, 39 L. J. Ch. 83. 43 See supra, pp. *290-*298, n. 54-57. MEDICAL PRACTITIONERS. 801. the admission of an attorney neglecting to obtain his certificate as thereby directed was in express temis made void (s. 31) : it was held that under the special circumstances of the case (which it is unneces- sary to mention), there had been a neglect within the meaning of the statute so that the attorney's admission was void, and that he must be regarded as having been off the roll of attorneys. He was therefore, as a necessary consequence, incapable of acquiring any right whatever as an attorney *while thus disqualified. It is sub- [667 mitted that under the modern Act there is no reason for depriving an uncertificated solicitor of his lien, at any rate in the absence of any wrong motive or personal default in the omission to take out the certificate. As to time of suing for costs. Apart from this, a solicitor cannot in any case sue for costs till a month after the bill has been delivered (C & 7 Vict. c. 73, s. 37), unless authorised by a judge to sue sooner on one of certain grounds now much enlarged by the Legal Prac- titioners Act, 1875 (38 & 39 Vict. c. 79) (e). Medical practitioners. The rights of medical practitioners now de- pend on the Medical Acts, 1858 and 1886, and (in England only) the Apothecaries Act, 55 Geo. 3, c. 194 (/). Common law as to physicians. Before the Medical Act the state of the law, so far as concerned physicians (but not surgeons or apothe- caries) was this: It was presumed, in accordance with the general usage and understanding, that the services of a physician were honorary, and were not intended to create any legal obligation : hence no contract to pay for them could be implied from his rendering them at the request either of the patient or of a third person. But this was a presumption only, and there was nothing contrary to law in an express contract to pay a physician for his services, which contract would effectually exclude the presumption (g).'^'^ (e) As to special agreements be- ktma (1885) 29 Ch. Div. 596, 54 L. J. tween solicitor and client, see p. *672, Ch. 1148. beloAv. ((/) Veitch v. Russell (1842) 3 Q. (/) This is still in force subject to B. 928, 12 L. J. Q. B. 13. No such certain amendments made in 1874, 37 presumption exists in the United & 38 Vict. c. 34, see Davies v. Ma- States; and qu. how far, if at all, it exists in English colonies. 44 That there is no presumption in this country that the services of a physician are honorary or gratuitous, and that he may, therefore, recover reasonable compensation for his services rejidered on request, see Todd i\ Myers, 40 Cal. 3.55; Judah r. M'Namee, 3 Blackf. 269; Shelton r. Johnson, 40 la. 84; Succession of Dickey, 41 La. Ann. 1010,- McClallcn r. Adams, 19 51 802 AGREEMENTS OF IMPERFECT OBLIGATION. Provisions of Medical Act, 1886. The Medical Act, 1886 (49 & 50 Yjct. c. 48), s. 6, enables every registered medical practitioner to recover his expenses, charges, and fees, unless restrained by a pro- hibitory by-law of a college of physicians of which he is a fellow (/()- 668] Accordingly there is no longer any prcsump*tion of honorary employment (i). It remains compet?nt however for a medical man to attend a patient on the understanding that his attendance shall be gratuitous, and whether such an understanding exists or not in a disputed case is a question of fact for a jury (Jc). Apothecaries Act, 55 Geo. 3. By the Act 55 Grco. 3, c. 194, s. 21, an apothecary cannot recover his charges without having a certificate- from the Apothecaries' Society : and this is not repealed by the Medi- cal Acts (/). It seems that a practitioner must have been registered at the time of rendering the services sued for, not merely at the time of suing {in),. decisively and at all events as to apothecaries; for an unrepealed sec- tion of the Apothecaries Act (55 Geo. 3, c. 194, s. 20) expressly for- bids unqualified persons to practise: and in the clear opinion of the Court on the construction and intention of the Medical Act also.^^ ~(h) Such by-laws have been made practitioner to sue only "according by the Royal College of Physicians to his qualification," and a quaiifica- in London, -and (though apparently tion in one capacity did not entitle without compulsory force under the him to sue for services rendered in Act) the Royal College of Surgeons another: Leman v. Fletclier (1873) of England. L. R. 8 Q. B. 319, 42 L. J. Q. B. 214. (i) Gibbon y. Budd (1863) 2 H. & But these words do not occur in the C. 92, 32 L. J. Ex. 182 (on the simi- Act of 1886, which on the other hand lar provision of the Act of 1858, requires all practitioners to be gen- -vvhich is repealed by the Act ot erally qualified. 1880). See judgment of Martin B. (m) Lnnan v. Houseley (1874) L (k) Gibbon v. Budd, last note. R. 10 Q. B. 66, 44 L. J. Q. B. 22 (not- (?) See decisions on this Act col- withstanding Turner V. Rcynall lected. 1 Wms. Saund. 513-4. S. 31 (1863) 14 C. B. N. S. 328, 32 L. J. C. of the Medical Act of 1858 enabled a P. 164). Pick. 333: Adams r. Stevens, 26 Wend. 451, 455; Prince v. McRae, 84 X. C. 674; Vilas r. Downer, 21 Vt. 419; Garrey r. Stadler, 67 Wis. 512. 45 It was held that a compensation for physician's services, rendered in vio- lation of a statute requiring a license, could not be recovered in Mayfield r. Nale. 26 Ind. App. 240; Bohn V. Lowry, 77 Miss. 424; Peterson v. Seagraves,. 94 Tex. 390. In Hewitt r. Wilcox, 1 Met. 154, it was held that an unlicensed physician could, after the repeal of an act depriving unlicensed physicians " of the benefit of law for the recovery of any debt or fee accruing for professional services," recover for services rendered while the act was in force. Contra, Bailey r. Mogg, 4 Den. 60; aliter. where the repealed act made the contract rot simplv unenforceable, but absolutely void. Nichols v. Poulson, 6 Ohio, 305; Warren t. Saxby, 12 Vt. 146. counsel's fees. 803 A qualified practitioner cannot recover for services rendered by an unqualified assistant who in fact acted without his specific direc- tion or advice (n). Similarly an agreement by a qualified practitioner to assist an unqualified one is bad, though perhaps an unqualified person might lawfully carry on medical business through qualified assistants if he did not act as a practitioner himself (o). *3. No remedy allowed. We now come to the cases in which [669 some positive rule of law or statutory enactment takes away the remedy altogether. The only cases known to the writer in which there is a rule of law to this effect independent of any statute are those of the remunera- tion of barristers engaged as advocates in litigation, and (to a limited extent) of arbitrators. Arbitrators. With regard to arbitrators the better opinion appears to be that they are in the same condition as physicians were at common law. It is said that an arbitrator cannot recover on any implied contract for his remuneration, but this is by no means certain. There is no doubt that he can sue on an express contract (p).*^ Barristers, The position of a barrister is different. It was formerly a current opinion that in the case of counsel, as in that of a physician, there was a presumption of purely honorary employment, derived from the custom of the profession, but that this presumption would be excluded by proof of an express con- tract (q). {n) Alvarez de la Rosa v. Prieto arbitrator's services might well be (1864) IG C. B. N. S. 578, 33 L. J. implied. When a case is referred by C. P. 262; Howarth v. Brearley the Court, the referee's or arbitra- (1887) 19 Q. B. D. 303, 56 L. J. Q. tor's remuneration is determinable B. 543. by the Court: Arbitration Act, 1889, (o) Dalies v. Makuna (1885) 29 s. 15. Ch. Div. 596. 54 L. J. Ch. 1148. iq) So Lord Denman seems to have (p) Hoggins v. Gordon (1842) 3 been inclined to think in T>i7c^ v. Q. B. 466. 11 L. J. Q. B. 286; Veitch Russell (1842) 3 Q. B. 928, 12 L. J. v. Russell (1842) 3 Q. B. 928, 12 L. Q. B. 13: and a modern Irish case of J. Q. B. 13. In Crnmpfon V. Ridley Hobart v. Butler (1859) 9 Ir. C. L. (1887) 20 Q. B. D. 48. 52, A. L. Smith 157. though it did not decide the J. thought that in mercantile arbi- point, proceeded to some extent on trations a promise to pay for the the same assumption. 46 In this country an arbitrator may recover compensation for his services in the absence of an express promise to pay for them. Holcomb r. Titfanv, 38 Conn. 271; Goodall r. Cooley, 29 N. H. 48, 55; Hinman r. Hapgood, 'l Den. 188. 804 AGREEMENTS OF IMPERFECT OBLIGATIOX. No remedy against client in respect of litigious business. But the deci- sion of the Court of Common Pleas in Kennedy v. Broun (r) lias es- tablished the unqualified doctrine that "the relation of counsel and client renders the parties mutuall}' incapable of making any legal contract of hiring and service concerning advocacy in litigation." The request and promises of the client, even if there be express promises, and the services of the counsel, " create neither an obligation 670] nor an inception of obligation, nor *any inchoate right what- ever capable of being completed and made into a contract by any sub- sequent promise." Distinction when barrister acts as arbitrator, &c. On the other hand there is apparently no reason to doubt the validity of an express con- tract to remunerate a barrister for services which, though to some extent of a professional kind, and involving the exercise of pro- fessional knowledge, do not involve any relation of counsel and client between the contracting parties : as when a barrister acts as arbitrator cr returning officer (s). The want of attending to this distinction has led to such cases being cited as authorities for the general proposition that a barrister can recover fees on an express contract. Express contract with client ae to non-litigious business. Moreover, it has been argued that an express contract even between counsel and client may still be good as to non-litigious business. A claim of this sort made against an estate under administration was disposed of by Giffard L.J. on the ground, which was sufficient for the par- ticular decision, that at all events a solicitor has no general authority to bind his client by such a contract : but he also observed that such applications had never been successful, and expressed a hope that they never would be (t). And it must be remembered that al- though the rule laid down in Kennedy v. Broun is in its terms confined to litigation, and the word advocate, not counsel, is studiously used throughout the judgment, yet the rule is founded not on any tech- (r) (1863) 13 C. B. N. S. 677, 32 L. 157, irrelevant. For instance, L. J. C. P. 137. Doe d. Bennett v. Hale (1850) 15 Q. (s) Hoggins V. Gordon (1842) 3 Q. B. 71, 18 L. J. Q. B. 353, shows only B. 466, 11 L. J. Q. B. 286; Egan v. that there is no absolute rule of law Guardians of Kensington Union that in a civil cause a barrister may (1841) 3 Q. B. 935, n. not be instructed directly by the (/) Mostyn v. Mostyn (1870) L. client, and throws no light whatever R. 5 Ch. 457, 459, 39 L. J. Ch. 780. on any question of a right to recover The cases there referred to in argu- fees. Uohnrt v. Butler was itself ment in favour of the counsel's really a decision against a similar claim seem, with the sole exception claim and on an almost identical of Hohart v. Butler (1859) 9 Ir. C. point. counsel's fees. 805 nical distinction between one sort of business and another, nor on any mere presumption, but on a principle of general convenience supported by unbrol\en custom. No doubt it may be said that some of the reasons given *for the policy of the law do not apply in their [671 full extent to non-litigious business (u) ; and it is doubtful whetlKT they apply even to those English colonies where the common law i< in force (x). But there is no reason to suppose that English courts of justice are likely to narrow the scope of a decision called by tlie late Lord Justice Giffard '^ a landmark of the law on this sub- ject"(y). Rights of barrister as against solicitor. There is no express authority to show whether a barrister can or cannot contract with his client's solicitor for payment of his fees any more effectually than with the client himself. It is apprehended that, inasmuch as counsel's services are given not to the solicitor but to the client, there would be no consideration to support such a contract unless the solicitor had actually received the fees from the client. In that case it is difficult lo see on what ground of principle or policy the barrister should not be legally entitled to them as money received by the solicitor for his use. A barrister has in fact been admitted to prove in bankruptcy against the estate of a firm of solicitors for fees (apparently for conveyancing, not litigious business) which had been actually paid by clients to the bankrupts before the bankruptcy (z). If this be right, it is also difficult to see why an express promise by the solicitor to pay such fees, or an account stated between the solicitor and the counsel in respect of them, should not be •binding. On the other hand the Court of Common Pleas has refused to exercise a summary jurisdiction, on the motion of the client, to compel an attorney to pay to counsel fees alleged *to have been paid by the client, or else [672 to return them to the client (a). The case, however, was a peculiar (m) In addition to Kennedy v. law of the Province of Quebec: in Broun, see Morris v. Hunt (1819) 1 that law there is nothing to prevent Cliitty, 544, 550, 554, where the an advocate from suing for profes- rule is put on the ground that the sional services. remuneration of the counsel ought to (y) Mostyn v. Mostyn, note [t], be independent of the result of the last page. cause, and therefore counsel should (z) Re Hall (1856) 2 Jur. N. S. rely on prepayment alone. This rea- 1076. son would however be equally inap- (n) Re Angell (1861) 29 L. J. C. plicable to an express and uncondi- P. 227. And see Re Le Brasseur and tional contract to pay fees for ad- Oakley [1896] 2 Ch. 487, 49.3, 495: vocacy, if made before the com- " I doubt whether anything short of mencement of the litigation. a bond would enable counsel to sue (x) Reg. v. Dontre (1884) 9 App. a solicitor for his fees," Lindley L.J. Ca. at p. 751, where it was held that at p. 492. the case at bar was governed by the 80G AGREEMENTS OF IMPERFECT OBLIGATION. one and goes but a very little way towards answering the general question. Recognition of counsel's fees in taxation of costs. It is hardly neces- sary to add that although counsel's fees cannot be recovered in any way by action, except possibly in some of the cases which have been mentioned as still doubtful, the propriety of paying such fees is judicially recognized by the constant practice of the courts in the taxation of costs : and the solicitor needs no authority from the client beyond his general retainer to enable him to retain and pay counsel and charge the fees to his client (b). The' payment of counsel's fees may in this manner be indirectly enforced either against the client himself or against an unsuccessful adversary who is liable for the taxed costs. Notwithstanding the strong expressions used by the Court in Kennedy v. Broun (c), the judicial notice thus taken of the obligation of a client to pay his counsel seems to show that it is in the nature of a legal duty, though not a. perfect one, and is on a different footing from a mere moral obligation. Solicitors' Remuneration Act, 1881. The Solicitor's Remuneration Act, 1881 (d), establishes complete freedom of contract between solicitor and client as to conveyancing and other non-contentious business, and to that extent expressly supersedes the earlier Act of 1870. Special agreements between solicitor and client under Act of 1870. By the Attorneys and Solicitors Act, 187U (33 & 31 Vict. e. 28), special agreements for remuneration between solicitor and client were made lawful (s. 4) and in a. qualified manner enforceable. Agreements under this Act cannot be sued upon as ordinary contracts, but the procedure is by motion or petition, when the Court may enforce 673] the *agreement if it appears to be in all respects fair and reason- able, or otherwise set it aside. In the last case the Court may direct the costs of the business included in the agreement to be taxed in the regular way (ss. 8, 9). Where there is an agreement to employ a solicitor on certain terms at a future time, this does not prevent the solicitor from suing the client in a court of law if the client refuses to let him transact the business at all. The Act applies only to that part of an agreement which fixes the "mode of payment for work done (e). il) See Morris v. Hunt (1819) 1 10 Ex. 200. 44 L. J. Ex. 116. By the Chitty, 544. terms of the Act the a<>ri'einent must (c) (1863) 13 C. B. N. S. 677, 32 be in writing, and it seems it must L. J. C. P. 137. be signed by both parties: Ex parte (d) 44 & 45 Vict. c. 44. Munro (1876) 1 Q. B. D. 724, 45 L. (e) Rees v. Williams (1875) L. R. J. Q. B. 816. TIPPLING ACT. 807 Voidable contracts of infants affirmed at full age. Since the Infants Relief Act, 1874, any contract of an infant voidable at common law and affirmed by him on attaining his majority must be reckoned as an imperfect obligation of this class, viz. on which there has not been and cannot be any remedy. The special features of this subject have been already considered (/), and there is nothing to add except that the general principles set forth in the present chapter seem to be applicable to these, so far as they still exist, as well as to other agreements of imperfect obligation. Other cases where contract not illegal, but remedy taken away by statute. 'There are sundry other cases of a less important kind in which the remedy naturally attached to a contract is taken away by statute, without the contract itself being forbidden or avoided. Small debts for spirits by Tippling Act, 24 Geo. 2; for beer, &c., by County Courts Act, 1888. By the Act 24 Geo. 2, c. 40, s. 12, commonly known as the Tippling Act, no debt can be recovered for spirituous liquors supplied in quantities of less than twenty shillings' wortb at one time (g). The County Courts Act, 1888, s. 182 (h), similarly enacts that no action shall be brought *in any court for the price of [674 beer or other specified liquors ejusdem generis consumed on the premises. The Act of Geo. 2 applies whether the person to whom the liquor is supplied be the consumer or not (t). As these enact- ments do not make the sale illegal, money which has been paid for spirits supplied in small quantities cannot be recovered back {k) A debt for such supplies was once held to be an illegal consideration for a bill of exchange (Z) : but this decision seems dictated by an excess of zeal to carry out the policy of the Act, and is possibly questionable. In a later case at Nisi Prius (w) Lord Tenterden lield that where an account consisted partly of items for spirituous liquors within the Tippling Act, and partly of other items, and pay- ments had been made generally in reduction of the account, the vendor was at liberty to appropriate these payments to the items for liquor, so as to leave a good cause of action for the balance ; thus (/) In Chap. II., above. (/) Hughes v. Done or Doane (g) By 25 & 26 Vict. c. 38, an ex- (1841) 1 Q. B. 294, 10 L. J. Q. B. 65. ception is made in favour of sales of (k) Philpott v. Jones (1834) 2 A. spirituous liquor not to be consumed & E. 41, 41 R. R. 371. on the premises, and delivered at the (I) (^cott v. Gillmore (1810) 3 purchaser's residence in quantities of Taunt. 220, 12 R. R. 641. not less than a reputed quart. (m) Crookshank V. Rose (1831) 5 (/!.) Superseding a simiLir enact- C. & P. 19, 38 R. R. 788. ment in the County Courts Act. 1867. 808 AGREEMENTS OF IMrERFECT OBLIGATIOX. treating these debts, like debts barred by the Statute of Limitation of James I., as existing though not recoverable. 'J'lie writer is not aware of any decision on the modern enactment as to beer, &c., in the County Courts Act. Trade union agreements under Trade Union Act, 1871. By the Trade TJuion Act, 1871 (34 & 35 Vict. c. 31), s. 4, certain agreements therein enuiuerated and relating to the management and operations of trade unions cannot be sued upon, but it is expressly provided tliat they are not on that account to be deemed unlawful. In this enumeration are included agreements to pay subscriptions. It has also been decided that a member of a trade vmion who complains of having been wrongfully expelled cannot be reinstated by the Court, though this may be done in the case of a club or other voluntary association holding property for purposes lawful at common law, on the ground of the expelled member being deprived of a right of 675] pro*perty (n). Practically trade union subscriptions are thus placed on the same footing as subscriptions to any club which is not proprietary (0). Xot that, so far as we are aware, there is any- thing in principle against the payment of subscriptions to a clul) being legally enforced: the practical difficulty lies in ascertaining who are Ihe proper persons to sue. The same difficulty exists in the case of any numerous unincorporated association. But this belongs to an- other division of our subject (p). Cases of analogy to imperfect obligations — Effect of repeal of usury laws as to advances made before. The present place seems on the whole the 2nost appropriate one for mentioning a singular case which may be regarded as the converse of those we have been dealing with. A valuable consideration is given in the course of a transaction Avhieh as the law stands at the time is wholly illegal and confers no right of action on either party. Afterwards the law which made the transaction illegal is repealed. Is the consideration so received a good foundation for a new express promise on the part of the receiver ? The question came before the Court of Exchequer in 1863, some years after the repeal of the usury laws. The plaintiff sued on bills of exchange drawn and accepted after that repeal, but in renewal of other bills given before the repeal in respect of advances made on (n) Rinbif V. Coiiiwl (1880) 14 Ch. pett v. Bishop (1826) 2 C. & P. 343, D. 4S2. 49 "L. J. Ch. 328: cp. Wolfe 31 R. R. 668; Raggett v. Musgravc V. ilattheu-s (1882) 21 Ch. D. 194, (1827) 2 C. & P. .5.56. The practical .51 L. J. Ch. 833. sanction is the power of excluding a (o) In the case of a proprietary member in default, club the proprietor can sue; see Rag- (p) See pp. *216, *234, supra. EQUITABLE OBLIGATIOXS. 809 terms which under the old law were usurious. The former bills were unquestionably void: but it was held by the majority of the Court that the original advance was a good consideration for the new bills. The question was thus stated in the judgment of the majority: — " Whether an advance of money under such circumstances as to create no legal obligation at the time to repay it can constitute a good con- sideration for an express promise to do so." And the answer was given *thus: — "The consideration which would have been [676 sufficient to support the promise if the law had not forbidden the promise to be made originally does not cease to be sufficient when the legal restriction is abrogated. ... A man by express promise may render himself liable to pay back money which he has received as a loan, though some positive rule of law or statute intervened at the time to prevent the transaction from constituting a legal debt" (q)-'^^ The debt, therefore, which was originally void by the usury laws, seems to have been put in the same position by their re- peal as if it had been a debt once enforceable bvit barred by the Statute of Limitation. But the decision seems wrong, for the con- sideration was wholly past at the time of the promise. The considera- tion for accepting a renewed bill of exchange is not the value re- ceived which was the consideration of the original bill, but the abandonment of the right of action thereon. Treatment of equitable obligations at common law. There is one other analogy to which it is worth while to advert, although it was never of much practical importance, and what little it had has in England been taken away by the Judicature Acts. Purely equitable liabilities have to a certain extent been treated by common law courts as im- perfect obligations. The mere existence of a liquidated claim on a trust against the trustee confers no legal remedy. But the trustee may make himself legally liable in respect of such a claim by an account stated (r), or by a simple admission that he holds as trustee iq) Flight v. Reed (1863) 1 H. & payment of the usurious loan. Quod C. 703, 715, 716, 32 L. J. Ex. 265, nimium subtiliter dictum vidciur. 260. Prof. Langdell (Summary (r) Topham v. Morecraft (1858) 8 § 76) supports the case on the ground E. & B. 972, 983; Hoicard v. Broicn- that the bills sued on were an actual hill (1853) 23 L. J. Q. B. 23. 47 Ace. Garvin v. Linton, 62 Ark. 370; Kilbourn r. Bradley, 3 Day, 356; Pliillips r. Columbus Assoc, 53 la. 719; Vermeule r. VermeuJe, 95 Me. 138; Early r. Mahon, 19 Johns. 147 ; Hammond r. Hopping, 13 Wend. 505 ; Sheldon r. Haxtun, 91 N. Y. 124; Marstin r. Hall, 9 Gratt. 8. See also Tucker r. West, 29 Ark. 386; Gwinn r. Simes, 61 Mo. 335: j\Te]choir r. McCarty, 31 Wis. 252. Cp. Holden r. Cossrrove, 12 Gray, 216; Ludlow v. Hardy, "38 Mich. 690; Fulton r. Day, 63 Wis. 112. 810 DISCHARGE OF CONTRACTS. a certain sum due to the cestui que trust (s). A court of law has also held that a payment made by a debtor without appropriation may be appropriated by the creditor to an equitable debt (t). 677] =^Summary of results. It may be useful to sum up in a more gen- eral form the results which have been obtained in this chapter. An imperfect obligation is an existing obligation which is not directly enforceable. This state of things results from exceptional rules of positive law, and especially from laws limiting the right to enforce contracts by special conditions precedent or subsequent. When an agreement of imperfect obligation is executory a right of possession immediately founded on the obligation can be no more enforced than the obligation itself. Acts done in fulfilment of an imperfect obligation are valid, and may be the foundation of new rights and liabilities, by way of con- sideration for a new contract or otherwise. A party who has a liquidated and unconditional claim under an imperfect obligation may obtain satisfaction thereof by any means other than direct process of law which he might have lawfully em- ployed to obtain it if the obligation had not been imperfect. The laws which give rise to imperfect obligations by imposing special conditions on the enforcement of rights are generally treated as part of the law of procedure of the forum where they prevail (u), and as part of the lex fori they are applicable to a contract sued upon in that forum without regard to the law governing the substance of the contract (x) ; but on the other hand they are not regarded in any other forum. (s) Roper v. Holland (1835) 3 A. (x) This (it is conceived) does & E. 99. not apply to reA-enue laws, and en- (t) Bosanquet v. Wray (1816) 6 actments which are merely ancillary Taunt. 597, 16 R. R. 677. to revenue laws, such as the provi- (u) Contra Savigny, Syst. 8. 270, sions relating to marine insurances 273. (p. *660, above). DISCHARGE OF CONTRACTS. 811 CHAPTER XIV. Discharge of Contracts. PAGE. Methods of discharge, 811 Release, 812 Nature and effect of, 812 Effect of statutes, 813 Covenant to forbear, 813 Conditional release, 814 Construction, 814 Rescission by parol agreement, 815 Elements of such agreement, 815 Agreements before breach of unilateral contract to dis- charge the obligor, 817 Agreements to discharge a party to a bill or note, 819 Written contracts, 821 Contracts under seal, 825 Accord and satisfaction, 828 Definition, 828 Whether an accord is a valid contract, 829 Unexecuted no bar at law, 831 Equitable relief, 833 Accord if taken as satisfaction is a bar, 834 Sealed contracts, 835 Debts of record, 836 Requisites of satisfaction, 837 Check sent in satisfaction of a disputed claim, 838 Accord and satisfaction with a third person, 840 PAGE. 843 Cancellation and surrender, Normal method of discharging specialties, 843 Bills and notes, 844 Simple contracts, 844 Alteration, 845 Common law rule — Pigot's case, 845 Distinction between convey ances and covenants, 845 Kinds of contract to which the rule is applicable, 851 Excusable alteration, author- ity, and ratification, 852 Effect of immaterial altera- tions, 859 What alterations are material, 859 What alterations are imma- terial, 863 Assignment of altered con- tracts, 866 When a debt survives the writ- ing, 868 Alteration before execution, 871 Pleading and evidence, 872 Merger, 874 By judgment or bond, 874 Requisites of merger, 876 Arbitration and award, 877 Authority revocable before award, 878 Arbitrator must follow author- ity, 879 Statutory arbitration, 880 Methods of discharge. A contract may be discharged in the follow- ing ways : 1. Performance according to its terms. 2. A breach of such a nature as to justify the innocent party in treating the contract as rescinded or as giving rise to a right ot' action for breach of the entire contract. 3. Rescission of a voidable contract, at the will of one party, as for fraud, mistake, duress. 81-^ DISCHARGE OF COX TRACTS. 4. Eelease. 5. Eeseission by parol agreement. 6. Accord and satisfaction. 7. Cancellation and surrender. 8. Alteration. 9. Merger. 10. Arbitration and award. 11. Impossibility. 12. Bankruptcy. 13. Statutes of Limitation, though in general barring the remedy only, may be added. A right of action upon a contract may be discharged in any of these ways except the second and the ele^■enth, Treatment of these methods. Tlie first three and the last three meth- ods here specified have been treated with more or less fulness in earlier parts of this volume. It remains to consider the other meth- ods. A distinction may be taken between the discharge of a contract and the discharge of a right of action that has arisen for breach of a contract, but as the principles applicable to the two cases are in general the same, it has been thought simpler to treat the questions together. Where the requirements of law differ according as the con- tract has or has not been broken, attention is called to the difference. Belease. Nature and effect of release. A release is a discharge under seal of an existing obligation or right of action. Any contract either before or after breach may be discharged l)y release. Like other sealed in- struments it needs no consideration.^ Early law. In very early times it may be that a release did not operate as a legal discharge of a specialty,^ since payment^ or a judg- ment'* did not. Even at the present day a negotiable instrument be- fore maturity cannot be effectually discharged by release.^ Xothing tut cancellation, destruction, or surrender of the instrument itself 1 Tiger f. Lincoln. 1 Col. 394; Union Bank r. Call, 5 Fla. 409; Ingersoll r. Martin, 58 :\Id. 67; Tyson r. Dorr. Whart. 2.56: Benson v. Mole, 9 Phila. 66; Sheer r. Austin, 2 Rich. L. 330. See also Mills v. Larrance, 186 111. 63.1 ; Saunders V. Blvthe, 112 Mo. 1; Winter v. Kansas City Ry. Co., 160 Mo. 1.59. 2 See Fowell r. Forrest, 2 Wins. Saund. 47 /f. 3 Ames, Specialty Contracts and Equitable Defenses, 9 Harv. L. Rev. 54. 4 See infra, p. 875. 5Dod V. Edwards, 2 C. & P. 602; Schoen r. Houghton, 50 Cal. 528. RELEASE. 813 can fully discharge a negotiable instrument before maturity. But this is now tbe only exception to tlie efficacy of a release. Effect of statutes in regard to seals. The legislation in many states^ in tliis country, depriving a seal of the efficacy which it had at c-ommon law. has Ijeen unfortunate in depriving the law of a simple and easy means for the voluntary discharge of liabilities. For a voluntary parol agreement to discharge a debtor from liability was not efficacious at common law," and in states where a seal is at most pre- sumptive evidence of consideration, a release, with or without a seal must be on the footing of a parol agreement.* In a few jurisdictions^ statutes have qualified this result by giving an unsealed release in Avriting the eifect which the common law gave to sealed writings only. The courts of a few other states by judicial legislation have given the effect of a sealed release to a written discharge or acknowledgment of receipt in full.^^ Covenant to forbear. A release properly is a present discharge, and a release of a right to be acquired in the future is, therefore, anoma- lous ;^^ but a covenant of perpetual forbearance has been from early times, in order to avoid circuity of action, a bar at law to an action,^^ 6 See supra, p. 217, ii. 25. " See infra, p. 816. 8 A sealed release made in ^Michicjan was disregarded on this ground in Wabash Ry. r. Brow, 05 Fed. Rep. 941 (C. C. A.). So in Missouri, \Yint*r r. Kansas City Ry. Co., IGO Mo. 150. It should he noticed tliat in New York (and perhaps other states) the statute depriving a seal of its commondaw efi'ect applies only to execu- tory contracts. Hence a voluntarv release is good. Honians r. Tvng, 50 N. Y. App. Div. 383, 387; Finch r." Simon, 01 X. Y. App. Div. 139. 9Cal. Civ. Code, § 1541: Ind. Code Civ. Pro., § 450; Mont. Civ. Code, § 2080; N. Dak. Rev. Stat.. § 3892; S. Dak. Annot. Stat.. § 4538; Shannons Tenn. Code, § 5570. An informal waiver or agreement does not come within these statutes. The instrument must purport to be a release. ^Yheelock r. Pacific Gas Co., 51 Cal. 223; Upper San Joaquin Co. V. Roach, 78 Cal. 552. See also Miller v. Fox, 76 S. \\'. Rep. 893 (Tenn.). 10 Green r. Langdon, 28 ^lich. 221; Holmes r. Holmes. 129 Mich. 412: Gray r. Barton, 55 X. Y'. 68; Ferry v. Stephens, GO X. Y. 321; C:^rpenler r. Soule, 88 X. Y". 251. See contra, Reynolds v. Reynolds, 55 Ark. 3C9 ; \Yarren r. Skinner, 20 Conn. 559; Stamper r. Hayes. 25 Ga. 540; Bingham 7-. Browninij. 197 111. 122; Dennett /•. Lamson, 30 Me. 223; First Bank r. Marsliall, 73 Me. 79: Sigournev r. Siblev, 21 Pick. 101; Gold Medal Sewing Mach. Co. r. Harris, 124 Mass"! 206. 11 Hoe r. Marshall, Cro. Eliz. 579; Hoe's Case, 5 Rep. 706, 71; Xeal v. ShefTield, Brownl. 110; S. C, Y>Iv. 192; 18 Yin. Abr. *327. 12 Hodges V. Smith, Cro. Eliz. 623; Smith v. Mapleback, 1 T. R. 441, 446; Ford r. Beech, 11 Q. B. 852. A covenant of permanent forbearance is, therefore, as effective as a release. Flinn r. Carter, 59 A\a. 364; Jones r. Quinnipiack Bank, 29 Conn. 25; Guard r. Whiteside. 13 111. 7; Peddioord r. Hill. 4 T. B. :Mon. 370; Foster r. Purdv, 5 Met. 442; Stebbins r. Xiles. 25 Miss. 267; Line r. Xelson, 38 X. J. L. 358; Phelps r. Johnson. 8 Johns. 54: Thurston /'. .Tames. 6 R. T. 103. So a bond to indemnify against a debt will bar an action bv the obligor on the debt. Richards r.' Fisher, 2 Allen, .527: Clark r. Bush, 3 Cow. 151. 814 DISCIIAKGE OF CONTRACTS. and as an attempted release of a future right must be construed as amounting at least to a covenant not to enforce the right whenever it arises, such a release is fully effectual. ^^ Conditional releases. A release may be subject to the happening of a condition precedent/'* and it has been held that it may also be sub- ject to a condition subsequent.^" There seems difficulty in this re- sult, however. It was a settled doctrine of the common law that a- cause of action once discharged was gone forever. If such a release can be successfully pleaded to the action before the condition subse- quent happens, a court of law must give judgment for the defendant, and if after the condition subsequent has happened an action is again brought on the same cause of action, the plea of res judicata seems unanswerable.^^ The intention of the parties can be effectuated in great measure, however, by construing the so-called condition subse- quent as a promise to pay the released claim in a given event. The creditor's right of action on the happening of that event would then be on the new promise contained in the release, not on the original cause of action. But consideration would Ije essential. Construction. Most of the cases on releases involve questions of con- struction only, and some technical rules of construction have been established, but these, like most rules of construction, would be held subordinate to the broad rule that the intention which the words of the instrument express in the light of the circumstances existing at the time shall prevail. ^^ Thus " by a release of all actions, suits, and quarrels, a covenant before the breach of it is not released, because there is not any cause of action, nor any certain duty before the breach of it, but the breach of it ought to precede the action, and the cause of the duty. . . . But ... by release of cove- nants, the covenant is discharged before the breach of it." ^^ " If a man release to another all manner of demands, this is the best release to him to whom the release is made, that he can have, and shall enure most to his advantage. For by such release of all 13 Pierce i: Parker, 4 Mete. 80; Reed r. Tarbell, 4 Mete. 93. See also Criim V. Sawyer, 132 111. 443; Curtis v. Curtis, 40 Me. 24; Power's Appeal, 63 Pa. 443. 14 Gibbons f. Vouillon, 8 C. B. 483 ; Corner r. Sweet, L. R. 1 C. P. 450. 15 Slater v. Jones. L. R. 8 Ex. 186; Xewington v. Lew, L. R. 5 C. P. 607, L. R. 6 C. P. 180. 16 See Ford v. Beech, 11 Q. B. 852. Therefore, in Tyson i\ Dorr, 6 Whart. 256, the condition subsequent was held void and the release absolute. 17 See Rowe v. Rand, 111 Ind. 206. 18 Hoe's Case, 5 Coke, 706, 71o. RESCISSION. 815 manner of demands all manner of actions reals, personals and actions of appeals are taken away and extinct, and all manner of executions are taken away and extinct." ^^ The most important rule of construction relating to releases was thus expressed in a recent case by Lindley, M.R. " General words of release are always controlled by recitals and context which show that imloss the general words are restricted, the object and purpose of the document in which they occur must necessarily be frustrated. General words are always construed so as to give effect to, and not so as to destroy, the expressed intentions of those who use them." ^^ Eescission hy Parol Agreement. Elements of such agreement. The discharge of a contract by the parol agreement of the parties would seem on principle to require the same elements of mutual consent and consideration that are necessary for the formation of simple contracts; and certainly this is the general rule. Bilateral contracts. If the parties to a bilateral contract agree to rescind it there is no difficulty in regard to consideration, whether the agreement to rescind is made before or after the breach of the original contract, so long as neither party has completely performed or been discharged from his obligation. The promise of one party to forego his Tights under the contract is sufficient consideration for the promise of the other party to forego his rights.^^ 19Litt., § 508; Co. Litt., 291a. See Suit r. Suit, 97 Md. 539. The nicety of construction which the early law sanctioned may be illus- trated by some otlier sections of Littleton. Thus, section 408, " If I have any cause to have a writ of detinue of my goods against another, albeit that I release to him all actions personals, yet I may by the law take my goods out of his possession, because no right of the goods is released to him but only the action." Again, section 504, " If a man recover debt or damages, and he releaseth to the defendant all manner of actions, yet he may lawfully sue execution by caputs ad satisfaciendum, or by elegit, or fieri facias; for execution upon such a writ cannot be said an action." 20 Re Perkins, [1898] 2 Ch. 182, 190. To the same effect are Payler r. Homersham, 4 M. & S. 423; Lindo v. Lindo, 1 Beav. 496; London. &c. Rv. Co. r. Blackmore, L. R. 4 H. L. 610; Turner v. Turner, 14 Ch. D. 829; Tryon v. Hart, 2 Conn. 120; Sevmour V. Butler, 8 la. 304; Rich v. Lord. 18 Pick. 322; Wiggin V. Tudor. 23 Pick. 434; Hoes I'. Van Hoesen, 1 Barb. Ch. 379; Mat- lack's Appeal. 7 Watts & S. 79. See also Danbv r. Coutts. 29 Ch. D. 500. 21 King r. Gillett, 7 M. & W. 55; Farrar r. Toliver, 88 111. 408; Rollins r. Marsh, 128 Mass. 11(5; Brigham v. Herrick, 173 Mass. 4fi0. 4(i7 ; Blagborne V. Hunger, 101 Mich. 375; Spier r. Hvde, 78 N. Y. Anp. Div. 151. 158; Dreifus r. Columbian Salvage Co., 194 Pa. 475, 486: Blood r. Enos, 12 Vt. 025; Montgomery v. American Central Ins. Co., 108 Wis. 146, 159. 816 DISCHARGE OF CONTRACTS. Agreement may be inferred from facts. The agreement to rescind need not be express. Mutual assent to abandon a contract may be in- ferred from circumstances^^ and sometimes from circumstances of a negative character, such as the failure to take any steps looking towards the enforcement or performance of the contract.^^ Also " a subsequent contract completely covering the same subject-matter, and made by the same parties, as an earlier agreement, but containing terms inconsistent with the former contract, so that the two cannot stand together, rescinds, substitutes, and is substituted for the earlier contract and becomes the only agreement of the parties on the sub- ject." 24 Unilateral contracts. If the original contract was unilateral or has since its formation become unilateral by the discharge of one party to the contract, either by his own performance or otherwise, a mutual agreement to rescind without more has no consideration. As one party only was entitled to anything under the original contract at the time of the attempted rescission, he alone promises to give up anything by agreeing to rescind. Two special classes of cases. These principles are clearly recognized by the decisions^*" except in two classes of cases: 1. Agreements made before breach of a unilateral contract to dis- charge the promisor. 22 Green v. Wells, 2 Cal. 584; Heinlin v. Fish, 8 Minn. 70; Fine v. Rogers, 15 Mo. 315; Chouteau v. Jupiter Iron Works, 94 ]Mo. "88; Wheeden r. Fiske. 50 X. H. 125. See also cases cited in the following two notes. 23Hobbs v. Columbia Falls Brick Co., 157 Mass. 109; Mowry v. Kirk, 19 Ohio St. 375. 24 Housekeeper Pub. Co. v. Swift, 97 Fed. Eep. 290 (C. C. A.). See in accord, Patmore v. Colburn, 1 C. M. & R. 65, 71; Stow v. Russell, 36 111. 18, 30 ; Harrison (;. Polar Star Lodge, 1 IG 111. 279, 287 ; Holbrook v. Electric Appliance Co., 90 111. App. 86: Western Rv. Equipment Co. v. Missouri Iron Co.. 01 111. App. 28, 37; Thompson r. Elliott, 28 Ind. 55: Paul v. Meservev, 58 Me. 419; Howard v. Wilmington, &c. R. Co., 1 Gill, 311, .^40; Smith v. Kelly, 115 Mich. 411: Chresman v. Hodges, 75 Mo. 413, 415; Tuggles v. Callison, 143 Mo. 527, 536: McClurg r. Whitney, 82 Mo. App. 625; Renard V. Sampson. 12 N. Y. 561, 568. Compare Rhoades v. Chesapeake, &c. R. Co., 49 W. Va. 494. 25 Foster r. Dawber, 6 Ex. 851: Edwards v. Walters. 2 Ch. 157. 168: West- moreland r. Porter, 75 Ala. 452; Florence Cotton Co. r. Field. 104 Ala. 471; Mobile. &c. R. R. Co. v. Owen, 121 Ala. 505: Swan r. Benson, 31 Ark. 728: Mendall v. Davis, 46 Ark. 420: Davidson i: Burke. 143 111. 139; Metcalf V. Kent. 104 la. 487; Averill v. Wood. 78 Mich. 342. 354; Young r. Power. 41 Miss. 197; Northwestern Nat. Bank r. Great Falls Opera House. 23 Mont. 1: Landon v Hutton, 50 N. J. Eq. 500: Crawford r. ^lillspauirh. 13 Johns. 87; Wliitehill v. Wilson, 3 Pen. & Watts, 405, 413; Kidder r. Kidder, 33 Pa. 268; Collyer r. Moulton, 9 R. I. 90. r::scission : unilateral contract before breach. 817 2. Agreements to discharge a party to a negotiable instrument, Vvhether the agreement be made before or after maturity of the instrument. Agreements Made Before Breach of a Unilateral Simple Contract to Discharge the Promisor. Early cases. In several short cases decided about the year IGOO, it Avas decided or said that such an agreement was effectual.^*^ The appropriate words for alleging such an agreement were that the plain- tiff exonerated or discharged the defendant. The point seems not to have been again discussed until the nineteenth century, when several cases were decided which touch upon it. King V. Gillett. In King v. GillettJ^' the plea to an action for breach of promise of marriage was that before any breach the plaintifE " ab- .solved, exonerated, and discharged the defendant." On special de- murrer it was urged that the plea should have alleged rescission by mutual assent. But the plea was held good on the strength of the earlv decisions. The court, however, said the question was merely as to a matter of form, for though the plea was good, " yet we think the defendant will not be able to succeed upon it at nisi prius, in case issue be taken upon it, unless he proves a proposition to exonerate on the part of the plaintiff, acceded to by himself, and this in effect will be a rescinding of the contract previously made." It is apparently thought by some writers-^ that the decision in some way discredits the early authorities, but this seems a mistake. The court simply said that mutual assent was necessary to make out the defence, but this is not saying that consideration was unnecessary. In later decisions the English courts have never considered King v. Gillett. As the contract in that case was bilateral, there was, undoubtedly, consideration if there was an agreement to rescind. The question was merely whether mutual assent was alleged with sufficient certainty. Dobson V. Espie. Dohson v. Espie,^'* was an action for the breach of an independent obligation to pay a deposit to an auctioneer as se- curity for future performance of a contract for the sale of property, and the defendant pleaded leave and license. On demurrer the court 2 ' It is a general rule of law. that a simple contract maj', before breach, be, waived or discharged, without a deed and without consideration; but after 1 reach there can be no discharge except by deed or upon sufficient consid- eration.' Assuming, then, that a plea of exoneration before breach would Jiave been good in this case, I thought that the present plea might be so read; and, therefore, if sitting alone, I should have been disposed to hold it good.' There is a dictum to the same effect by Lindley, L. J., in the recent case of Edwards v. ]yaUers.^'^ Foster v. Dawber. It is true that Parke, B., in Foster v. Dawherp said obiter " an executed contract cannot be discharged except by re- lease under seal, or by performance of the obligation, as by payment, where the obligation is to be performed by payment."' It is to be noticed, however, that Parke is not speaking of the situation before breach and though his remark is applicable both to broken and un- broken contracts, cases arise far more commonly in regard to the former. In any event, Parke was speaking without having the au- thorities before him and with his mind addressed to another matter. In view of the later case of Dobson v. Espie,^ the English law seems still to be that exoneration before breach is good without consideration. American decisions. In the United States there are a few dicta"^^ to the same effect, and there is a decision in Wisconsin^ involving the point, which held exoneration good. But there are authorities of contrary effect,^*^ and in view of this as well as the opinion of Ameri- can text writers,^^ and the absence of any underlying principle to sup- •■^oSo in 16th ed., p. .311; 1 Smith's Leading Cases (11th Eng. ed.), .350; (9th Am. ed.) 614. 31 [1896] 2 Ch. 157, 168. 32 6 Ex. S51. 33 2 H. & N. 79. 34 Robinson v. McFaul, 19 Mo. 549; Sevraour f. Minturn, 17 Johns. 169, 175; Kelly V. Bliss. 54 Wis. 187, 191. 35 Hathawav r. Lvnn. 75 Wis. 551. 36 Hale r. Dresseii, 76 Minn. 183; Collyer v. Moulton. 9 R. T. 90: Rip'ey r. .¥Ansi Ins. Co.. 30 N. Y. 136. 164. See also Bowman r. Wright. (]r^ Neb. 661; Purdy i>. Rome, etc.. R. Co., 125 N. Y. 209. 37 Clark on Contracts. 608: Harriman on Contracts (2d ed.), § 505: 24 Am. & Eng. Encyc. of Law (2d ed.), 287. RESCISSION : NEGOTIABLE INSTRUMENTS. 81U port the Englisli doctrine, it seems probable that consideration will, in most states, be held essential. Cases may be suggested, however, where the promisor should clearly be held discharged. Suppose the promisee informs the promisor that performance will not hd re- quired, and relying on this the promisor is not ready to perform at the day, or has so altered his position that he cannot perform at all. Though estoppel is not ordinarily a substitute for consideration justice demands that in the cases supposed the promisee should not be allowed to hold the promisor liable for his non-performance. It may well be that a recognition of this possibility of injustice here suggested led the early judges to hold exoneration good without con- sideration. At the present day it would seem better to apply the doc- trines of estoppel ill pais when necessary, but in general to require consideration. Agreement to Discharge a Party to a iSTegotiable Instrument. Foster v. Dawber. The following extract from the opinion of Parke, B., in Foster v. Dawher,^ the leading case on the subject sufficiently expresses the English law prior to the enactment of the Bills of Ex- change Act in 1882. " Mr. Willes disputed the existence of any rule of law by which an ob- ligation on a bill of exchange by the law laerchant can be discharged by parol, and he questioned the decisions, and contended that the authorities merely went to show that such an obligation might be discharged as to remote but not as between immediate parties. The rule of law has been so often laid down and acted upon, although there is no case precisely on the point as between immediate parties, that tiie obligation on a bill of ex- change may bo discharged by express waiver, that it is too late now to question the propriety of that rvile. In the passage referred to in the work of my brother Byles, the words ' it is said ' are used, but we think the rule there laid down is good law. We do not see any sound distinction be- tween the liability created between immediate and distant ])arties. Whether they are mediate or immediate parties the liability turns on the law mer- chant, for no person is liable on a bill of exchange except through the law merchant: and, probably, the law merchant 'oeing introduced into this country, and diflfering very much from the simplicity of the common law, at the same time was introduced that rule quoted from Pailliet39 as prevail- ing in foreign countries, viz., that there may be a release and discharge from a. debt by express words, although unaccompanied by satisfaction or by any solemn instrument. Such appears to be the law of France, and probably it Avas for the reason above stated that it has been adopted here with respect to bills of exchange. But Mr. Willes further contended, that thougli the rule might be true with respect to bills of exchange, it did not apply to promissory notes, inasmuch as they are not put upon the same foot- ing as bills of exchange by the statute law. Tlie negotiability of i)romi^- sory notes was created by the statute 3 & 4 Anne, c. 9, which recites that ' notes in writing signed by the party who makes the same, Avhereby such party promises to pay unto any other person or his order any sum of money therein mentioned are not assignable or indorsable over, within the custom 38 6 Ex. 839, 8.51. 30 Manuel de Droit Civil, Code Civ., liv. 3, tit. 3, s. 3. 820 DISCHARGE OF CONTRACTS. of iu|<>rcliants to any other person' (that is one of the properties promissory iiMff*s are recited not to have) ; 'and that such persons to whom the sum of money mentioned in such note is payable cannot maintain an action by the oubto'm of merchants against the person wlio first made and signed the sftuie ; and that any person to whom such note shall be assigned, indorsed, or made payable, could not, witliin the said custom of merchants, maintain uny action upon such note against the person who first drew and signed the same." That appears to apply to cases of the original liability on a note, as well as to those cases where tlie liability has been created by the assignment of that instrument. Now bills of exchange and promissory notes diflter from other contracts at common law in two important particu- lars: first, they are assignable, whereas choses in action at common law are not; and secondly, the instrument itself gives a right of action, for it is pre- sumed to be given for value, and no value need be alleged as a consideration for it. In both these important particulars promissory notes are put on the same footing as bills of exchange by the statute of Anne, and, therefore, we think the same law applies to both instruments. This court was oi this opinion in a case of Mayhew v. Cooze.40 in which there was a plea similar to the present, although the expression of that opinion was not necessary for the decision of that case." 41 Bills of Exchange Act. The Bills of Exchange Act now provides :^^ "62 ( 1 ) When the holder of a bilHS at or after its maturity absolutely and unconditionally renounces his rights against the acceptor the bill is discliarged. " The renunciation must be in writing, unless the bill is delivered up to the acceptor. " (2) The liabilities of any party to a bill may in like manner be renounced by the holder before, at, or after its maturity, but nothing in this flection shall aflect the rights of a holder in due course without notice of the renimciation." The requirement of a writing effected a change in the English law. It was adopted from the Scotch law.'*^ American decisions. The doctrine of Foster v. Dawher Avas never adopted by the American courts and it was uniformly held that con- sideration was necessary to make effectual an agreement to discharge a party to a negotiable instrument.'*^ The draftsman of the Ameri- 40 23d November, 1849, not reported. 41 In White r. Bluett, 23 L. J. Ex. (N. S.) 3G, the defendant, when .sued upon a promissory note, pleaded an agreement by the )iayee to dis- charge it in consideration of an agreement by the defendant to forbear to make certain complaints. The court held the alleged consideration insufficient and gave judgment for the plaintiff, but as the forbearance asked for was in fact given and as there was nothing illegal in the bargain, it is difficult to see why the doctrine of Foster v. Dawber, to which Parke, B., alluded, should not have been applied. 42 4o & 46 Vict., ch. 61. 43 The provisions of this section are made applicable to promissory notes by section 89. 44 Chalmers' Bills of Exchange (5th ed.), 212. 45:\Ianess V. Henrv, 96 Ala. 4.54; Scharf r. Moore, 102 Ala. 468; Upper Pan Joaquin Co. r. Roach, 78 Cal. 552: Rogers r. Kimball, 121 Cal. 247:' Heckman r. Manning, 4 Col. 543: Adamson r. Lamb, .*? Blackf. 446; Denman r. McMahin, 37 Ind. 241: Carter r. Zenblin. OS Ind. 437: Hanlon v. Doherty, 109 Ind. 39; Franklin Bank v. Severin, 124 Ind. 317; Shaw r. Pratt, 22 Pick. rp:scissiox : written contracts. 821 can Xegotiable Instruments Law,'*" however, copied the provision of the English act, and in States where this law has been enacted,'*^ there- fore, a written renunciation or discharge is good without consideration. Written Contracts. May be varied by subsequent agreement. " By the general rules of the common law, if there be a contract which has been reduced into writing, it is competent to the parties, at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve, or annul the former agreement, or in any manner to add to, or sub- tract from, or vary, or qualify the terms of it, and thus to make & new contract, which is to be proved, partly by the written agreement, and partly by the subsequent verbal terms engrafted upon what will be thus left of the written agreement."'*^ After breach. It is also true that if the agreement to discharge or vary a contract is made after its breach, it is immaterial whether the original bargain was or was not in writing. The later agreement is an accord, and if the parties so intend will operate at once without performance to discharge the liability for breach of the original contract."** 305; Smith v. Bartholomew, 1 Met. 276; Bragg v. Danielson, 141 Mass. 195; ilale r. Dressen, 76 Minn. 183; Henderson v. Henderson, 21 Mo. 379; Irwin r. Johnson, 36 N. J. Eq. 347; Crawford r. Millspaugh, 13 .Johr.s. 87; Sevmour V. Mintnrn, 17 Johns. 169; CampbelFs Est., 7 Pa. 100. 101; McGuire r. Adams, 8 Pa. 286; Kidder v. Kidder, 33 Pa. 268; Horner's App., 2 Penny- packer. 289 ; Corbett v. Lucas, 4 McCord L. 323. See, however, \olan V. Bank of New York, 67 Barb. 24, 34. ■is Crawford Xego. Inst. Law, § 203'. 47 New York Laws of 1897, eh. 012; New Y^ork Laws of 1898, ch. 336; Connecticut Laws of 1897, ch. 74; Colorado Laws of 1897. ch. 64; Florida Laws of 1897, ch. 4,524; Massachusetts Laws of 1898, ch. 533: IMassa- chusetts Laws of 1899, ch. 130; Maryland Laws of 1898, cb. 119; Yirginia. Laws of 1897-8, ch. 866; Rhode Island Laws of 1899, ch. 674; Tennessee Laws of 1899, ch. 94; North Carolina Laws of 1899, ch. 733; Wisconsin Laws of 1899, ch. 356; North Dakota Laws of 1899, ch. 113; Utah Laws of 1899, ch. 149; Oregon Laws of 1899, Sen. Bill 27; Washington Laws of 1899, ch. 149; District of Columbia Laws of 1899; U. S. Stats. Arizona R. S. 1901, tit. XLIX, §§ 3304-3491; Pennsylvania Laws of 1001. ch. 162: Ohio Laws of 1902, Sen. Bill 10; Iowa Laws of 1902. ch. 130; New Jersey Laws of 1902. ch. 184; Montana Laws of 1903. ch. 121; Idaho Laws of 1903. Sen. Bill 86; Kentucky Laws of 1004; Louisiana Laws of 1904. 48 Goss r. Lord Nugent, 5 B. & Ad. 58, 64. See in accord Pioneer Sav- ings Co. r. Nonnemacher. 30 So. Rep. 79 (Ala.) ; Swain r. Seamcns. 9 Wall. 254. 271; Calliope Min. Co. r. Herzinger, 21 Col. 482; Ward r. Wal- ton. 4 Ind. 75; Walter V. Victor G. Bloede Co., 94 Md. SO, 85; Cummings r. Arnold, 3 Mete. 486, 489; Barton r. Gray. 57 INTich. 622: Van Santvoord r. Smith. 79 :Vlinn. 316; Chouteau r. Jupiter Iron Works. 94 Mo. 388: War- ren r. Mayer "Mfg. Co., 161 Mo. 112. 121: Bryan r. Hum, 4 Sneed, 543; Montgomery r. American Ins. Co., 108 Wis. 146, J 59. 49 See infra, p. 834. 8'^'i DISCHARGE OF COXTBACTS. Contracts within the Statute of Frauds — Rescission. If an executory tontract is within tlie Statute of Frauds and is in writing or a proper ■written memorandum has at some time been made, a subsequent oral agreement to rescind the contract is effectual if the oral agreement fulfills the requisites of a contract at common law. The Statute of Fiauds does not mention contracts of rescission or discharge and such contracts are therefore not affected by its terms.*''^ An exception to this rule should, perhaps, be made in the case of contracts relating to land. As such contracts create immediately an equitable interest in the land,^^ the contract to rescind necessarily involves the sur- render of an interest in land. This has been so held^^ and the reason- ing seems unanswerable, but there is contrary authority,^'^ which lakes no distinction between contracts for an interest in land and Oilier contracts within the statute. If the agreement to rescind was paid for, or anything was done in accordance with the agreement which could operate as an accord and satisfaction, the original agree- ment is doubtless effectually discharged.^^ On the other hand it should be noticed that if a contract has been partly executed by the transfer of either real or personal property, an agreement of rescis- i-Ion which contemplates not simply a discharge of unexecuted obliga- tions Init a re-transfer of the property must certainly be within the section of the statute relating to sales of land or that relating to sales of goods. Variation. More difhcult questions are presented when the subse- quent oral agreement does not purport totally to rescind but only to vary some of the terms of an original bargain, which was within the Statute of Frauds but of which a memorandum had been made. It seems clear on principle that no right of action can lie for breach of the second agreement or of the first and second combined. To allow such a right would be to enforce a contract within the statute when ^^0 Goss V. Tx»rd Nugent. 5 B. & Ad. 58, 66. SI Equitable interests are within the statutes. Toppin v. Lomas, 16 C. B. 1-15 : Smith V. Burnham. :i Sumn. 4.3.5; Dougherty V. Catlott, 129 III. 431; I'ronne on the Statute of Frauds. § 220. ^•2Catlett v. Dougherty. 21 111. App. 116 (see Dougherty v. Catlett, 120 111. 431) ; Dial v. Grain, 10 Tex. 444, 454 (see also Huffman v. Mulkey, 78 Tex. 556 ) . 53 Goss r. Lord Xucent. 5 B. & Ad. 58, 66 (see, however, Harvey v. Grabham, 5 A. & E. 61, 73) ; Buel r. Miller. 4 N. H. 106; Boyce v. McCulloeh, 3 W. & S. 420: Brownfield"s Ex. r. BroMnfield, 151 Pa. 565. See also Browne on the Statute of Frauds. § 431 rf seq. 5-t Burns v. Fidelitv Real Estate Co., 52 Minn. 31. 36; Warren r. Mayer Mfg. Co.. 161 :\[o. 112, 122: Long r. Hartwell. 36 X. .7. L. 116; Miller" r. Pioroe. 104 N. C. 389; .Tones v. Booth. 38 Ohio St. 405; Phelps r. Seely, 22 Graft. 573; Jordan r. Katz, 89 Va. 628, 630. RESCISSION : WRITTEX CONTRACTS. 823 some terms at least of the contract were oral.^^ On the other hand, if the terms of the oral contract have been performed, such perform- ance operates as a satisfaction of the liability on the original contract. The Statute of Frauds does not apply to executed contracts, so that when the oral agreement is performed its performance has the effect which the parties agreed it should have.^*^ If the terms of the oral agreement have not been performed, the original contract still re- mains in force. Though an oral agreement to rescind without more Avould be effectual, where the rescission is to be effected only by the necessary implication contained in the agreement to substitute a new contract differing in some of its terms from the old one, there can be no rescission if the agreement for substitution is invalid.^" Even if one party offers to perform his promise under the new agreement, tlie other party may, according to the better view, still insist on the original contract, and refuse to accept the substituted performance to which he had orally agreed.^^ In an early case,^** however, the Su- preme Court of Massachusetts adopted a distinction that was sug- gested by Lord Ellenborough in Cuff v. Penn,^^ between the contract and its performance. "" The statute," Wilde, J., says, '' requires a memorandum of the bargain to be in writing, that it may be made certain ; but it does not undertake to regulate its performance." The court then proceeds to argue that as a substituted performance would operate as a satisfaction of the original contract, and tender is equiva- lent to performance, the plaintiff could sue on the original contract and prove in support of it an offer to perform with the alterations 55 stead r. Dawbev, 10 A. & E. 57 (overruling Cufl" v. Penn, 1 M. & S. 21) ; Marshall V. Lynn, 6 M. & W. 116; Noble v. Ward, L. R. 1 Ex. 117: Carpenter v. Galloway, 73 Ind. 418; Bradley v. Ilarter, 156 Ind. 499; Cum- mings V. Arnold, 3 Mete. 486, 491; King v. Faist, 161 Mass. 449, 456; Heisley r. Swanstrom, 40 Minn. 199; Burns v. Fidelity Real Est. Co., 52 Minn. 3l"; Thompson r. Thompson. 78 Minn. 379 ; Rucker v. Harrin.fiton, 52 Mo. App. 481; Warren r. Mayer Mfg. Co., 161 Mo. 112; Dana v. Hancock, 30 Vt. 616. 5" 1 M. & S. 21. The suggestion was repudiated in Stead c. Dawber, 10 A. & E. 57, and Marshall v. Lynn, 6 M. & W. 109, and is wholly discredited in England. 824 DISCHAEGE OF CONTKACTS. Ifiter agreed upon. But the prevailing view is that even in the case of a binding contract of accord, tender is not equivalent to perform- ance, and there is no satisfaction even if the tender is wrongfully refused.*^^ However this may be, a tender where there is no obliga- tion to accept it cannot possibly have the effect of performance. The learned author of the leading text book on the subject*''^ gives his ap- proval to the decision, but the current of authority seems strongly against it. Amount of variation. No distinction is taken in the cases between large changes from the original agreement and slight ones, such as the extension for a brief period of the time for performance. The validity of such a distinction has been explicitly denied.*'^ " Every part of the contract in regard to which the parties are stipulating must be taken to be material." ^ Part performance of varied agreement. Though an attempted oral modification of a contract within the statute is wholly ineffectual to accomplish the intent of the parties, yet the actual forbearance by one party at the request of the other to enforce a contract at the time when performance was due may produce important legal consequences. In Ogle v. Vane,^ it was held that the plaintiff who had contracted to buy iron from the defendant in July, and who, after waiting at the defendant's request till the following February, then bought in the market, could charge the defendant for damages based on the price in February, though the price was higher then than in July. The court relied to some extent on the fact that though there was forbearance at the defendant's request there was no agreement to forbear, but it seems an agreement would have made no difference, for the agreement would neither have rescinded the original contract nor have had any effect itself except in so far as it was performed.^ Hickman v. Haynes. In Hickman v. Jlaynes.^' the plaintiff liad agreed to sell and the defendant to buy iron in the future. The <■! Infra, p. 832. <'2 Browne on the Statute of Frauds, § 424. See also Smith v. Loomis, 74 Me. .503; Lee r. Hawks, 68 Miss. 069. Cp. Wiessner r. Aver, 176 Mass. 42.'). 63 Goss r. Lord Nugent, 5 B. & Ad. 67 ; Harvev r. Grabham, 5 A. & E. 74 ; Marshall v. Lvnn. 6 M. & W. 116. 64 Per Parke, B., Marshall r. Lynn, 6 M. & W. 116, 117. 65 L. R. 2 Q. B. 275, L. R. 3 Q. B. 272. 66 Smiley r. Barker, 83 Fed. Rep. 684 (C. C. A.) ; Barton r. Gray, .57 :\Iich. 622, 636. See Hasbrouck r. Tappen, 15 Johns. 200. Cp. Sanderson v. Graves, JL. R. 10 Ex. 234. 67 L. R. 10 C. P. 598. RESCISSION: WRITTEN CONTRACTS. 8'i5 defendant liad roqiiostcd, before the time for performance, ' an en- largement of the time for taking delivery. This was granted, but the defendant ultimately refused altogether to take the iron. In an action on the contract the defendant set up that the plaintiff was not himself ready and willing to perform the contract at the time when performance was due according to the written memorandum. The court held that though before that time " either party could have changed his mind and required the other to perform the contract according to its original terms," ^ yet after having induced the plain- tiff to withhold delivery the defendant could not thereafter insist that prompt delivery was a condition precedent to a right of action. In this case, as in the preceding, the court said there was no agree- ment to forbear, but merely a voluntary forbearance, but here also it is hard to see that a mutual agreement, which was unenforceable, would have altered the decision. ^^ Performance of part of contract within the statute. If so much of a con- tract as is within the Statute of Frauds is fully performed, other obligations or liabilities on the contract may obviously be discharged or modified in any way that contracts not within the statute may be. Thus in Negley v. Jcffers,''^ there was a contract for the sale of land and the land was actually conveyed. After the conveyance an agree- ment was made by the vendee for valuable consideration to waive certain conditions precedent to his obligation to pay the price. It was held this agreement though oral was binding. Contracts under Seal. Common law rule. If the original contract was under seal the same questions are presented with the additional difficulty, which at com- mon law was insuperable, that an obligation by deed could not be discharged or varied by anything of inferior nature. ^^ When applicable. This rule was applicable to any discharge at- tempted either before breach of the deed or after the breach of the deed if the obligation created by the deed was to pay a fixed sum of money. If, however, a covenant was for the performance of anytliing 68 Quare if tlie change of mind was so near the time for performance as to make performance extremely difficuH for the other party. See Tvers v. Ilosedale Co., L. R. 8 Ex. 305, L. R. 10 Ex. 195. 69 8milev r. Barker. S."? Fed. Rep. ()84 (C. C. A.) : Burton r. Gray, 57 Mich. 622, 6.36. ' But sec Sanderson v. Graves, L. R. 10 Ex. 234. 70 28 Ohio St. 90. 71 See cases infra, passim. S2G DISCHAEGE OF COKTRACTS. other tlian tlie payment of a fixed sum of money, breacli of the cove- nant gave rise merely to a right of action for unliquidated damages, and such a right of action was subject to the same rules as to dis- charge that are applicable to simple contracts J^ Modern relaxation. Accordingly, if an obligation under seal created reciprocal rights, a mutual agreement before breach of the obliga- tion to surrender such rights or to substitute others for them did not discharge or alter the effect of the deed.'^'* The suggested mutual agreement by parol evidently contains all the requisite elements of a contract, but there seems no recognition of its validity as a contract in any decision before the beginning of the nineteenth century, and it is hard to distinguish it from an unexecuted accord which was held not valid as a contract."'* In Nasli v. Armstrong,'^ however (which was decided after the passage of the Common Law Procedure Act of 1854"^ had permitted the use of equitalde pleas at law), it was not only held that such a parol agreement was in itself a l)inding contract, but it was also said that the performance of the contract would " be ground for an unconditional per])etual injunction against proceeding npon the deed," and consequently Avould be the basis of a good equi- table plea in an action at law. At the present day this doctrine would be generally accepted. Indeed, many modern authorities go farther than this. Even though the parol agreement has not been performed, if it was intended in substitution of the earlier sealed contract, this intention is frequently given full effect. In jurisdictions where by statute the effect of a seal has been abolished or seriously diminished, this result is based on clear principle, for if a contract under seal is reduced to the level of a mere written contract in other respects, there is no reason why it should not be discharged or varied by sub- sequent written or oral bargains.'^" But in leading jurisdictions, where seals still have in most respects their old value, the rule for- 72 Blake's Case, G Rep. 342. 73 Rogers v. Payne, 2 ^Vils. 37G : Braddick r. Thompson, 8 East, 344 ; West r. Blakewav, 2 Man. & G. 729: Ellen r. Topp. G Ex. 424; ITerzog r. Sawyer, (il Md, 344. 3.52. See also iufra, p. 835. T4 Allen c. Harris. 1 Ld. Ravm. 122; Lynn v. Bruce, 2 IT. Bl. 317: Reeyos v. Hearne, 1 :\I. & V\'. 323. 75 10 C. B. N. S. 250. In Braddick r. Thompson, 8 East, 344, 34G, the court said obiter, in denyino- that a parol agreement could discharge a bond: '■ His only reme 144; Hunt c. Brown, 146 Mass. 2.53; Palmer v. Bosley, 62 S. W. Rep. 19', (Tenn. Ch.). ACCORD AND SATISFACTIOX. 831 intend. Generally no intention is definitely expressed, and it is neces- sary to resort to inference. When a creditor agrees to accept from his debtor something in. satisfaction of the debt in consideration of the debtor's promise to give the satisfaction, it can hardly be supposed that the parties intended that the creditor should immediately have the right to proceed on his original claim, without giving the debtor a chance to give the agreed satisfaction. Temporary forbearance at least must have been, contemplated, though not expressly promised. So that if no time is fixed by the parties for the performance of the accord, it is a natural inference that the parties intended that thi^ ci editor should forbear for a reasonable time; if a date is fixed by the parties for the performance of the accord, the inference is that the parties intended forbearance iipon the original claim to last until that date. In some cases the circumstances show that the parties intended more than a temporary forbearance. They may and sometimes do, in effect, agree that the original liability shall be immediately extin- guished and the accord substituted in its place. But this is excep- tional. Accord no defence at common law. After the true construction of the accord is determined, its legal effect must be considered. Let it be 5?upposed, first, that the accord was not intended immediately to satisfy und destro}'' the original cause of action, and further that the cred- itor, in violation of his agreement, brings action on the original cause before the time has arrived for the debtor to give the agreed satisfaction. If the debtor pleads the accord, the defence cannot be sustained.^"* To sustain it would lead to the result that even though the debtor subsequently failed to perform the accord, the creditor's claim would be barred, for Judgment having once been given for the defendant on that very cause of action the matter has become res judicata. Of course, the creditor could sue upon the accord, but to limit his rights to this would in effect jDut him in the same position that he would have occupied if he had agreed to accept the accord and not its performance as the satisfaction of the debt. The rule of the common law, therefore, that an unexecuted accord is no defence is based on sound principles. 9-i Many decisions to this effect are collected in 1 Am. & Eng. Encyc. of Law (2d ed.), 422. A few recent cases are Crow r. Kimball Lumber Co., (i!) Fed. Rep. 61 (C. C. A.) ; Cras.s r. Scruggs, 115 Ala. 25S : Martin-Alexander Co. ?'. Johnson, 70 Ark. 215; C4oble t\ American Nat. Bank, 46 Xeb. 891; Gowing r. Thomas. 67 N. H. 399; Arnett r. Smith, 11 N. Dak. 55, 64. The decisions cited in the first paragraph of the next note are a fortiori in point to the same effect. S:yi DISCHARGE OF CONTRACTS. Even though performance tendered. The case may be carried a step further. Suppose the debtor within the time agreed or within a reasonable time tenders performance of his promise, but the creditor in violation of his agreement refuses to accept the performance in satisfaction of his claim, and brings suit on the original cause of action. Here, too, the unexecuted accord is no defence.^^ The cred- ilor's claim is not satisfied. Tender is not the same as performance. To assert such a doctrine is to say that the debtor after making his tender has satisfied his debt, tliough he is still the owner of the thing which was agreed upon as the satisfaction. Even in the rare case where the tender is not only made, but kept good by setting aside as the creditor's the proposed satisfaction, to give relief involves an ex- tension of the powers of a court of law. If the court holds that the debt was satisfied and that the tendered property became the property of the creditor by setting it aside for him, the court is doing more than merely ordering specific performance. It is holding that the debtor himself by his own action in appropriating the property to the cred- itor, in spite of the latter's express refusal to receive it, has himself specifically enforced the bargain transferring title to the creditor and extinguishing the original obligation. Doubtless the law of sales fur- nishes a certain analogy with such a result. In many jurisdictions a seller may, if the buyer in breach of his contract refuses to receive tlie goods agreed upon, set them aside for him and sue him for the full price, instead of damages for loss of the bargain,^'' but unless there is no way to work out a just result without such violation of fundamental legal distinctions the analogy should not be followed. &5 Shepherd v. Lewis, T. Jones, G; Lynn r. Bruce, 2 H. Bl. 317; Carter r. Worniahl, 1 Ex. 81; C4abriel r. Dresser, 15 C. B. 022; Humphreys r. Third Nat. Bank, 75 Fed. Rep. 852, 859; Long v. Scanlan, 105 Ga. 424; Woodruff r. Dobbins. 7 Blackf. 582; Deweese r. Cheek, 35 Ind. 514; Younjf r. Jones, 04 Me. 563; White r. Gray, 68 Me. 579; Clifton r. Litchfield, 106 ]\Iass. 34; Hayes l: Allen, 160 Mass. 34; Brest v. Cole. 183 Mass. 283; Hoxsie v. Empire Lumber Co.. 41 Minn. 548, 549; Clarke r. Dinsmore, 5 N. H. 136; Kochester r. Whitehouse, 15 N. H. 468; Kidder v. Kidder, 53 N. H. 561; Gowing r. Thomas, 67 N. H. 399; Russell v. Lytle, 6 Wend. 390; Brooklyn Bank r. De Grauw, 23 Wend. 342; Tilton r. Alcott, 16 Barb. 598; Kronier ^. Heim, 75 N. Y. 574; Hearn r. Kiehl, 38 Pa. 147; Blackburn r. Ormsbv, 41 Pa. 97; Hosier v. Hursh, 151 Pa. 415; Clarke v. Hawkins, 5 R. 1. 219; Carpenter r. Chicago, etc., Ry. Co., 7 8. Dak. 594; Gleason r. Allen, 27 Vt. 364. But see contra, Bradley r. Gregory, 2 Camp. 383; Verv r. Levy, 13 How. 345; Latapee V. Pecholier^ 2 Wash, c! C. 180; Wliitsett r. Clayton, 5 Col. 476; Jenness v. Lane, 20 Me. 475; Heirn r. Carron, 19 ]\Iiss. 361 ; Coit r. Houston. 3 Johns. Cas. 243 (overruled); Bradshaw r. Davis, 12 Tex. 336; Johnson V. Portwootl, 89 Tex. 235, 239. 9C ;Mec'hem on Sales, § 1694. In many jurisdictions, however, the seller cannot recover the full price unless the title to the goods had passed. Ibid. ACCORD AND SATISFACTION. 833 Equitable relief. It is clear that the debtor has just reason to com- plain if the law allows the creditor to proceed at once with his original cause of action without giving the debtor an opportunity to satisfy it as the parties agreed in the accord. Recognized principles, however, suffice to protect the debtor. His grievance is that the creditor has broken the promise of temporary forbearance necessarily implied from the accord, and he should be entitled to the same redress that is al- lowed for breach of contracts for temporary forbearance where there is no agreement of accord. A covenant or other contract for tempo- rary forbearance is not a good plea at law to an action brought in violation of the contract."'^ To allow such a plea and give judgment for the defendant would involve the consequence that the plaintiff could never sue, though he had agreed to temporary forbearance only, and would be repugnant to the rule of the common law that if a cause of action is once suspended, it is gone forever; nor is there better ground for an equitable plea to the action, since equity would not grant a permanent injunction against the creditors action, for the same difficulty that forbids upholding the plea as a legal defence is equally insuperable to an equitable defence. The defendant is entitled to delay, not to a defense on the merits. The debtor must, therefore, apply to a court of equity powers for a temporary injunc- tion against the prosecution of the action, and such an injunction should be granted.^* In the case of an accord there is a further difficulty. It will not greatly help the debtor to get a temporary injunction on the express or implied promise of the creditor to for- bear if the creditor is permitted ultimately to refuse to accept the agreed satisfaction, and may then enforce his original cause of action. In order to give effectual relief, therefore, equity must specifically enforce the performance of the accord. As a court of law cannot give adequate relief, and as the promise of temporary forbearance necessarily included in the accord gives equity jurisdiction of the matter, there seems good reason for equity to deal with the whole matter by granting specific performance. Though there is strangely little authority upon the matter, and though in the few cases on the 97 Ford V. Beech, 11 Q. B. 852; Ray v. Jones, 19 C. B. N. S. 41G ; Dow r. Tuttle, 4 Mass. 414; Perkins r. Gilnian, 8 Pick. 229; Winans r. Huston 6 Wend. 471. See, however, Walker r. Nevill, 34 L. J. Ex. 73; Slater r. Jones, L. R. 8 Ex. 186; Newington v. Levy, L. R. 5 C. P. 607, 6 C. P. 180. 98Conipleat Attorney (1st ed.), 325; Blake v. White, 1 Y. & C. Ex. 420, 424, 420; Greely r. Dow, 2 Met. 176, 178. See also Billington r. Wagoner, 33 N. Y. 31; Bomeisler r. Forster, 154 N. Y. 229. But see Hall r. First Bank, 173 Mass. 16. 53 834 DISCHARGE OF CONTRACTS. point the reasoning is not very full or satisfactory, the result here advocated seems to be justified by the decisions.'^'' Accord may itself be taken as satisfaction and is then a bar. Though an executory promise to give something in satisfaction of a cause of action cannot be while unperformed a legal bar to an action upon the original cause, the parties may, as has already been said, agree that an executory promise shall itself be the satisfaction of the old right; and if the claimant accepts a promise with that agreement, his original claim is at once and finally extinguished. Thereafter he must find his only remedy upon the new promise. This doctrine is modern,^ and it may well be doubted whether early courts would have admitted the possibility, under any circumstances, of an ex- ecutory simple contract extinguishing an existing cause of action f but the principle seems logically correct, and is now well-settled law.^- Presumption that accord is not intended as satisfaction. It is often ex- tremely difficult to determine as matter of fact whether the parties agreed that the new promise should be itself the satisfaction of the original cause of action, or whether they contemplated the per- formance of the accord as the satisfaction. Unless there is clear evi- dence that the former w^as intended, the latter kind of agreement, must be presumed, for it is not a probable inference that a creditor intends merely an exchange of his present cause of action for another. It is generally more reasonable to suppose that he bound himself to surrender his old rights only when the new contract of accord was, 99 Very r. Le\T, 13 How. 345. 349; Apperson v. Gogin, 3 HI. App. 4S; Chicora Fertilizer Co. r. Dunan, 91 Md. 144. See lie Hatton, L. R. 7 Ch. 723. 1 Good r. Cheesman, 2 B. & Ad. .328, is regarded as the leading case on the point, but the doctrine was not clearly stated until after that decision. 2 The reason given by Eyre, C. J., in Lynn i\ Bruce, 2 H. Bl. 317, against the validity of unexecuted accords generally, that they are merely " sub- stituting one cause of action in the room of another," is obviously as appli- cable to an agreement which is itself to be satisfaction of a cause of action as to an agreement where the performance is to be the satisfaction. 3 Evans v. Powis, 1 Ex. 601; Buttigieg r. Booker, 9 C. B. 689; Edwards r. Hancher, 1 C. P. D. Ill, 119; Acker r. Bender, 33 Ala. 230; Smith v. Elrod, 122 Ala. 269; Heath v. Vaughn, 11 Col. App. 384; Warren v. Skinner,. 20 Conn. 3.56; Goodrich r. Stanley, 24 Conn. 613; Brunswick, etc., Ry. Co. r. Clem, 80 Ga. .534; Simmons v. Clark, .56 HI. 96; Hall r. Smith, 10 la. 45. 15 la. 584; Whitney r. Cook, 53 Miss. .551 ; Yazoo, etc.. R. Co. r. Fulton, 71 Miss. 385; Worden v. Houston, 92 Mo. App. 371; Gerhart Realty Co. r. Northern Assur. Co., 94 Mo. App. 356; Frick r. Joseph. 2 N. Mex. 138; Perdew r. Tillma, 62 Neb. 865; Morehouse r. Second Nat. Bank, 98 N. Y. 503; Nassoiy r. Tomlinson. 148 N. Y. 326; Spier r. Hyde, 78 N. Y. App. Div. 151; Babcocic r. Hawkins. 23 Vt. 561. See also Hunt'r. BrowTi, 146 Mass. 253. Cp. Camp- bell V. Hurd, 74 Hun, 235; Wentz v. Meyersohn, 59 N. Y. App. Div. 130; Hos- ier r. Hursh, 151 Pa. 415. ACCORD AND SATISFACTION. 835 performed. The earliest decision in which it was held that the accord itself might operate as an extinguishment of the creditor's claim was on an agreement of composition;* and it is in such instruments perhaps that it is most frequently and naturally inferred that tlie in- tention of the parties was to substitute ai once the right to the agreed composition for the old claims. Consequence of non-performance of accord. If such is the construc- tion of the agreement, it must follow that even though the accord is never performed the creditor's right to sue on the old claim is lost.^ If, however, it is the performance of the accord which is to be the satisfaction of the claim, the creditor may, on default in performance of the accord by the debtor, sue either on the accord or on the original cause of action;^ and similarly, if the creditor, c«)ntrary to his agree- ment, sues on the original claim without giving opportunity for the performance of the accord, the debtor need mak<' no attempt to use the accord as a ground for injunction, even though the local law permits him to do so, but may suffer judgment to go against him and resort to a separate action on the accord.''^ Sealed contracts. A contract under seal presented some peculiar difficulties. The maxim " Nihil tarn conveniens est naturali aequitate, vf unumquodque dissolvi eo ligamine quo Ugatum est," seemed to forbid discharge by accord and satisfaction as completely as by mere parol agreement. Blake's case^ however, decided that a right of action for unliquidated damages for breach of covenant could be dis- charged in this way. The Court distinguished the case from that of a covenant to pay a sum of money. " For there is a difference, w^hen a duty accrues by the deed in certainty, tempore confectionis scripti, as by covenant, bill, or bond to pay a sum of money, there this certain duty takes its essence and operation originally and solelv by the writing;^ and therefore it ought to be avoided by a matter of as high a nature, although the duty be merely in the personalty, but when no certain duty accrues by the deed, but a wrong or default 4 Good r. Cheesman, 2 B. & Ad. 328. 5 Sioux City Stock Yards Co. v. Sioux City Packing Co., 110 la. 396. CBabcock v. Hawkins, 23 Vt. 561. ' Hunt r. Brown, 146 Mass. 253. 8 6 Coke, 43 b. 9 In further illustration of the theory of our early law. that an obligation to pay money was an immediate conveyance or grant, rather than merely an executory promise to do something in the future, see Langdell, Sum. Cont., § 100; Pollock S: Maitland, Hist, of Eng. Law {2d ed.), ii., 205; 8 Harv. L. Rev. 252; 14 id. 429. 836 DISCHARGE OF CONTRACTS. eubsoqiient, together with the deed, gives an action to recover damages which are only in the personalty for such wrong or default, accord with satisfaction is a good plea,^*^ Before breach of a covenant, not only was a parol agreement in- effectual to discharge it, but even though property were accepted in satisfaction the covenant was not discharged, whether the covenant was for the payment of money^* or for the performance of some duty, breach of which would sound in damages. ^^ Doubtless equity would. if necessary, enjoin the enforcement of any kind of bond^^ where satisfaction had been given either before or after maturity. The acceptance of property in satisfaction necessarily imports an agree- ment never to enforce the original obligation, and covenants to for- bear perpetually were early given effect to as a defence, even by courts of law. The reason sometimes given is that such a covenant amounts to a release.^* The more accurate reason, however, and that generally given in the books, is that circuity of action is thereby avoided. ^'^ This latter reason is as applicable to the case of a parol contract never to sue as to the case of a covenant not to sue, so that it would seem that even a court of law might well have held satisfaction be- fore breach a defence. There can now be no doubt that wherever equitable defences are allowed at law, there would be a goci defence to an action at law on the covenant, and probably few coarts would liesitate to accept such a defence, even though no statute had au- thorized the general use of equitable pleas. -^^ Debts of record. A debt of record presented a difficulty similar to that of a debt by specialty. Accordingly it could not be discharged at common law even by payment. By Statute of 4 Anne, c. 16, § 12, 10 Soe to the same effect, Herzog r. SaAAyer, Gl Md. 344, 352; Cabe r. Jame- son. 10 Ired. L. 193; Smith r. Brown, 3 Hawks, 580. n Spenee v. Healev, 8 Ex. 668. i2Kave r. Waghorne, 1 Taunt. 428; Berwick r. Oswald, 1 E. & B. 295; Harper 'r. Hampton. 1 H. & J. 622, 673; Smith r. Brown, 3 Hawks, 580. 13 Steeds r. Steeds, 22 Q. B. D. 537; Xash r. Armstrong, 10 C. B. N. S, 259: Hurlbut r. Phelps. 30 Conn. 42; McCreery r. Day, 119 N. Y. 1. 1-1 Deux V. Jefferies.. Cro. Eliz. 352. 15 Hodges r. Smith, Cro. Eliz. 623 : Lacv v. Kvnaston, 2 Salk. 575 ; S. C, 1 Ld. Ray. 690; 12 Mod. 551; Ford r. Beech. 11 Q. B. 852, 871. See also Smith V. Mapleback, 1 T. R. 441, 446; Ledger r. Stanton. Johns. & H. 687. 16 Green r. Wells, 2 Cal. 584; McDonald'c. Mountain Lake Co., 4 Cal. 335; ^Yorrell r. Forsvth. 141 111. 22 (see also Starin r. Kraft. 174 111. 120; Jones r. Chamberlain.' 97 HI. App. 328) ; Munroe r. Perkins. 9 Pick. 298; Savage r. Bl-inchard, 148 :\Iass. 348; Siebert r. I^onard, 17 Minn. 433, 436; Arraijo f. Abeytia, 5 N. Mex. 533, 545; Reichel r. Jeffrey. 9 \Yash. 250. C'ases where a parol agreement to rescind or discharge a sealed contract is held effectual, also a fortiori imply that accord and satisfaction would be good. ACCORD AXD SATISFACTIOX. 837 this Tvas changed in England. The English statute may be retrarded as part of the Amerjcan common law inheritance, but it did not cover the case of accord and satisfaction, and that has been held ■within comparatively recent times to constitute no defence to an action on the judgment.^" It may be doubted, however, whether these decisions would now be followed anywhere. The Supreme Court of the United States, though it holds itself obliged to preserve tlie distinctions between law and equity as they existed a century ago, has held the defence good,^^ and other decisions are to the same effect.i^ Requisites of satisfaction like those of consideration. Though the de- fence of accord and satisfaction was recognized long before the doc- trine of consideration was developed, the requirements for a legally effective satisfaction became confused and regarded aa identical witli the requirements for the consideration of a promise. As an accord and satisfaction is an executed transaction, and as the validity of the satisfaction as a discharge of the previous cause of action cannot have rested on any view that the satisfaction was rather the con- sideration of a promise of perpetual forbearance than a technical extinction of the old cause of action, the essentials of consideration and of satisfaction might well have varied. But it was not unnatural that what had been regarded as inadequate to work a satisfaction of a cause of action should also have been regarded as insufficient consideration, and later that whatever was insufficient considera- tion should be inadequate also for the satisfaction of a cause of action. Brian, C. J., said in 1455 of an attempted satisfaction by part payment : " The action is brought for 20 pounds and the con- cord is that he shall pay only 10 pounds which appears to be no satisfaction for 20 pounds. For payment of 10 pounds cannot be pajmient of 20 pounds. But if it were a horse, which horse is paid according to the concord, that is a good satisfaction; for it does not appear whether the horse is worth more or less than the sum in de- mand." "^ This soon became settled law as to satisfaction, but the doctrine of consideration was expressly distinguished by Coke at least, IT Riley i: Riley, 20 X. J. L. (Spencer) 114; Mitchell v. Hawley, 4 Denio,, 414; Garvev r. Jarvis. 54 Barb. 179. iSBoffliiger r. Tiiyes, 120 U. S. 198, 205. WRe Freeman, 117 Fed. Rep. 680. G84 ; Jones v. Ransom, 3 Ind. 327: McCullouorh r. Franklin Coal Co.. 21 Md. 256; Savage r. Blanchard, 148 Mass. 348; Weston r. Clark. 37 :\Io. 568. 572; Fowler V. Smith, 153 Pa. 639; Reid r. Hibbard, 6 Wis. 175. Accord and satisfaction was held a good plea to an action on a foreign judgment in Hardwick r. King, 1 SteAV. (Ala.) 312. 20 Y. B. 33 Hen. VI. 48 A. pi. 32; 12 Harv. L. Rev. 521. 838 DISCHAEGE OF CONTRACTS. who held tliat though part payment of a debt could not in the nature of things be a satisfaction of the debt, it might be consideration for a promise.^^ Lord Ellenborough, however, made no such distinction,- and regarded, apparentl}^ consideration as a test both for satisfaction and for executory contracts. " There must be some consideration for the relinquishment of the residue; something collateral to shew a pos- sibility of benefit to the party relinquishing his further claim, other- wise the agreement is nudum pactum."^ Reasonableness of satisfaction. In Cumber V. Wane,^^ Pratt, C. J., said: " It must appear to the Court to be a reasonable satisfaction; or at least the contrary must not appear." But in modern cases no such test is applied. The same rule that governs the formation of contracts — that the adequacy of the consideration is for the parties — governs the .satisfaction of causes of action. Thus in Cooper v. Parker ^"^ Parke, B., said : " The Court cannot enter into a considera- tion of the value of the satisfaction, which upon the face of it is uncertain." So in Curlewis v. Clarlc, an incomplete bill of exchange was held a good satisfaction; Alderson, B., saying: "We cannot value the signature of the Earl of Mexborough; possibly it may be worth something as an autograph." ^^ Cases where satisfaction ineffectual. Though the common case where an agreed satisfaction is held ineffectual for lack of consideration arises when part of a liquidated and undisputed debt has been paid,^ doubtless decisions on other facts would turn on similar principles.^^ Thus where performance of a duty other than a debt is held insuffi- cient consideration to support a promise, such performance would also be held insufficient to satisfy any cause of action. The legal requirements in this respect for a valid satisfaction should, there- fore, be sought under the heading of consideration. Check sent in payment of disputed claim. It seems obvious that noth- ing can operate as a satisfaction, unless both debtor and creditor agree that it shall, but there is one commonly recurring state of facts where this principle seems to be lost sight of by many courts. The 21 Bagge V. Slade, 3 Bulst. 162. 22 Fitch V. Sutton, 5 East, 230, 232. The early cases are stated and dis- cussed by Professor Ames in 12 Harv. L. Rev. 524. 23 1 Stra. 426. 24 15 C. B. 822, 828. 25 3 Ex. 375, 379. See also Reed r. Bartlctt, 19 Pick. 273. 26 See these cases collected and distinctions discussed in 12 Harv. L. Rev. 525 et seq.; 1 Am. & Eng. Encyc. 413 et seq. 27 Leake on Contracts (4th ed.), 622. ACCORD AND SATISFACTION. 839 case is this: A debtor sends to a creditor whose claim is unliquidated or disputed a check with a letter stating that the check is sent in full satisfaction of the claim, and that if the creditor is unwilling to accept it as such he must return it. The creditor takes the check, but immediately writes a letter stating that he refuses to accept the check as full satisfaction, but will apply it in reduction of the in- debtedness. Upon these facts the English Court of Appeal held that there was no satisfaction of the cause of action,^^ and a few Jurisdic- tions in the United States have made the same ruling.^^ But the great weight of authority in the United States is to the contrary.^'' It is said that the acceptance of the check necessarily involves an acceptance of the condition upon which it was tendered. Principles governing the question. If the parties are dealing orally with one another and the debtor offer the creditor a check in full satisfaction which the creditor takes, it must be inferred that he as- sents to the terms. If the creditor refuses to receive the check in full satisfaction and yet takes it, either he must have assented to the terms, or the debtor must have assented to the creditor's refusal, for the voluntary giving of the check by one, and the taking it by the other, if neither misunderstood the words that were spoken, necessarily indicate assent,^^ and it becomes a question of 28 Day V. McLea, 22 Q. B. D. 610, 29 Louisville, etc., Ry. Co. r. Helm, 22 Ky. L. Rep. 964; Rosenfield v. Fortier, 94 Mich. 29. See also Kistler r. Indianapolis R. Co., 88 Ind. 460; Mortlock r. Williams, 76 Mich. 568 ; Mitterwallner i\ Supreme Lodge, 86 N. Y. Supp. 786; Krauser v. McCtirdv, 174 Pa. 174; Rapp v. Giddings, 4 S. Dak. 492. 30 Potter r. Douglass, 44 Conn. .541; Hamilton r. Stewart, 108 Ga. 472; Ostrander v. Scott, 161 111. 339; Lapp r. Smith, 183 111. 179; Bingham v. Browning, 197 111. 122; Michigan Leather Co. r. Fover, 104 111. App. 268; Talbott V. English, 156 Ind. 299, 313; Neely r. Thompson, 75 Pac. Rep. 117 (Kan.) ; Anderson r. Standard Granite Co., 92 Me. 429, 432; Fremont Foundry Co. r. Norton. 92 N. W. Rep. 1058. 1060 (Neb.) ; Nassoiv v. Tomlinson, 148 N. Y. 326; Logan v. Davidson, 162 N. Y. 624; Lewinson r. Montauk Theatre Co., 60 N. Y. App. Div. 572; Whitaker r. Eilenberg, 70 N. Y. App. Div. 489; De Lovenzo r. Hughes, 84 N. Y. Supp. 857; Petit v. Woodlief, 115 N. C. 120; Hull i\ Johnson, 22 R. I. 66 ; McDaniels v. Rutland, 29 Vt. 230 ; Connecticut River Lumber Co. v. Bro^^^l. 68 Vt. 239. See also Bull r. Bull, 43 Conn. 455 ; Cooper V. Yazoo, etc., R. Co.. 35 So. Rep. 162 (Miss.) ; Pollman Coal Co. r. St. Louis, 145 Mo. 651; McCormick v. St. Louis. 166 Mo. 315, 335; Perkins V. Hadley, 49 Mo. App. 556. As to the necessity of an explicit statement that the check sent is intended as full pavraent, cp. Hillestad r. Lee, 91 Minn. 335; Fremont Foundry Co. v. Norton, 92' N. W. Rep. 1058 (Neb.) ; Whitaker V. Eilenberg, 70 N. Y. App. Div. 489 ; Amer V. Folk, 28 N. Y. Misc. Rep. 598 ; Boston Rubber Co. v. Peerless Wringer Co., 58 Vt. 551; Van Dyke v. Wilder, m Vt. 583. 31 Potter r. Douglass, 44 Conn. 541 ; Cooper v. Yazoo, etc., Ry. Co., 35 So. Rep. 102 (Miss.) ; McCormick v. St. Louis, 166 Mo. 315. See also McKeen r. Morse, 49 Fed. Rep. 253; Porter v. Cook, 114 Wis. 60. 840 DISCHAKGE OF CONTRACTS. fact, what the bargain was to which they assented. But if the debtor laid down the check and departed, saying, if this is taken it is full satisfaction, it is hard to see why the creditor may not steal or convert the check. Doubtless, if he take the check, saying nothing, his taking will be equivalent to an expression of assent to the offer, whatever his mental intent,^" and even if he indicate by some act or word at the time that he takes the check that his intention is not to treat the debt as satisfied, he should still be regarded as assenting to the terms of the debtor's offer, for under the circumstances the debtor has reason to suppose that the taking of the check is an ex- pression of assent unless informed to the contrary.^''' But if as soon as the check is taken notice is promptly given to the debtor that it is not taken as satisfaction, it seems impossible to find the elements of a bargain. The most forcible argument upon the other side is that the creditor should not be allowed to assert his tortious conver- sion of the check, though the effect of such a ruling is to fix upon the creditor a bargain which he never made. The case of sending the check by mail is essentially the same as that just discussed, in that the creditor is given the power in fact to take the check without making an agreement with the debtor, though forbidden to exercise such power. Accord and satisfaction with a third person — English cases. The ques- tion whether accord and satisfaction entered into by the creditor with a person other than the debtor discharges the debt has been much disputed. Even though the third person pays in money the exact nmount of the debt there can in strictness be at most an accord and satisfaction, for, as payment by A. is a different thing from payment by B., the obligation has not been performed according to its tenor. In the early case of Gnjmcs v. Blofidd^'^ the defendant pleaded to an action of debt satisfaction given by a third person, but it was held no plea. This is inconsistent with a still earlier case thus stated by Fitzherbert :^^ "If a stranger doth trespass to me and one of his 32 Crpijjiiton r. Gretrorv, 142 Cal. 34; Keck r. Hotel Owners' F. I. Co.. 89 la. 200; Le Page v. Lalance Mfg. Co., 90 N. Y. Supp. G70. 3.3 Hull r. Johnson, 22 R. I. (56. In this case the debtor wrote on the check: " Good only ... if endorsed in full of all demands." The creditor struck this out and cashed the check. The court said: "The erasure on the check was not made in the presence of the defendants, and could not have been kno\\Ti to them until the check had reached their bank and had been paid. The plaintiff gave them no notice of his rejection of their offer, but took their money." 34 Cro. Eliz. .541. This case is elaborately considered in Jones r. Broad- hurst, 9 C. B. 173, 195 et seq., and the result of an examination of the orig- inal rolls is stated. 35 Tit. " Barre," pi. 166. ACCOKD AND SATISFACTION. 841 relations, or any other, gives anything to me for the same trespass, to which I agree, the stranger shall have advantage of that to bar me; for, if I be satisfied, it is not reason that I be again satisfied. Quod tota curia concessit." Grymes v. Blofield was followed in Edg- comhe v. Rodd,^ and though its correctness seems to have been doubted in Jones v. BroadhurstJ^' where Cresswell, J., considered t)ie question elaborately, the English law was settled soon after by several cases thus summarized by Baron Parke in Simpson v. Egging- ton .^^ " The general rule as to payment or satisfaction by a third person, not himself liable as a co-contractor or otherwise, has been fully considered in the cases of Jones v. Broadhurst, 9 C. B. 193; Belshaiv V. Bush, 11 C. B. 191, and James v. Isaacs, 22 L. J. C. P. 73; and the result appears to be that it is not sufficient to discharge a debtor unless it is made by the third person, as agent for and on account of the debtor, and with his prior authority or subsequent ratification. In the first of these cases, in an elaborate judgment delivered by Mr. Justice Cresswell, the old authorities are cited, and the question whether an unauthorized payment by and acceptance in satisfaction from a stranger is a good plea in bar is left undecided. It was not necessary for the decision of that case. In Belshaw v. Bush, it was decided that a payment by a stranger considered to be for the de- fendant and on his account, and subsequently ratified by him, is a good payment; and in the last case of James v. Isaacs, a satisfaction from a stranger, without the authority, prior or subsequent, of the defendant, was held to be bad." ^^ In Simpson v. Eggington'^^ it was held that ratification might be made at the trial of such an action. American cases. In the United States the weight of authority sus- tains the validity of the defence,'*^ though wherever there is any evidence that the payment or satisfaction was made on behalf of 36 5 East, 294. See also Thurman v. Wild, 11 A. & E. 453. 3T9 C. B. 173, 193. 38 10 Ex. 844. 39 See in accord with James v. Isaacs, Kemp r. Balls, 10 Ex. 607 ; Lucas r. Wilkinson. 1 H. & N. 420. 40 10 Ex. 844. See also Neely v. Jones, 16 W. Va. 625. 41 Harrison r. Hicks, 1 Port. (Ala.) 423; Underwood v. Lovelace, 61 Ala. 155; Martin r. Quinn, 37 Cal. 55; White r. Cannon, 125 111. 412; Poole V. Kelsev, 95 111. App. 233. 240; Ritenour r. Mathews. 42 Ind. 7; Binford r. Adanis, 104 Ind. 41; Thompson r. Conn. Mat. L. I. Co., 139 Ind. 325, 345; Harvey v. Tama Countv. 53 la. 228 ; Porter r. Chicapo. etc., Ry. Co., 99 la. 351, 359; Marshall r. Bullard, 114 la. 402; Oliver v. Bragg, 15 La. Ann. 402; T^avitt r. Morrow, 6 Ohio St. 71: Royalton r. Cushing, 53 Vt. 321, 326; Crumlish's Admr. v. Central Imp. Co., 38 W. Va. 390; Gray v. Herman, 75 Wis. 453. 842 DISCHARGE OF CONTRACTS. the debtor and was ratified by him, these facts are relied upon.*^ In New York, however, the strictness of the early Engliish law was long iriaintained,^^ and a similar result has been reached in Kentucky*"* and Missouri.'*^ Ratification by the debtor. The difference in the authorities is of less importance than it anight seem on first consideration. The courts which require the satisfaction to be made on behalf of the debtor and ratified by him are disposed to find these facts upon rather slight evidence. The difficulty is generally that the third person did not purport to act on behalf of the debtor. If the payment was so made as to be capable of ratification, there can be no difficulty so far as the debtor himself is concerned in making out such ratifica- tion. The mere assertion by the debtor that the debt has been satis- fied though made by plea or at the trial after action has been brought on the debt is sufficient. If the question whether the debt lias been paid comes in issue between the creditor and third persons, then indeed trouble may arise over the question of ratification. Equitable defence. Even though satisfaction from a third person does not legally discharge the obligation, there may be ground for an equitable defence. There must be implied from the creditors acceptance of the satisfaction a promise to forbear perpetually to .'•ue the original debtor. Whether the original debtor can enforce this piomise in any jurisdiction should depend upon the doctrines there held in regard to the enforqement by third persons of contracts for thtiir benefit or for the discharge of obligations due to them.*^ If the promise is enforceable by the original debtor, either a permanent injunction or an equitable plea at law is an appropriate remedy. .Rescission of arrangement. It has been held in England that before ratification by the debtor, it is competent for the creditor and the third person to rescind their arrangement, and the original debtor 42 See the careful opinions in Snyder v. Pharo, 25 Fed. Rep. 398, and Jackson v. Pennsylvania R. Co., 66 N. J. L. 632. 43 Clow V. Borst, 6 Johns. 37 ; Daniels r. Hallenbeck, 19 Wend. 408 ; Bleak- ley i\ White, 4 Paige, 654; Muller r. Eno, 14 N. Y. 597, 605; Atlantic Dock Co. V. New York, 53 X. Y. 64; Dusenbury v. Callaghan, 8 Hun, 541, 544. Cp. Hun V. Van Dyck, 26 Hun, 567 ; affirmed, without opinion, 92 N. Y. G60. See also Wellington r. Kelly. 84 N. Y. 543; Knapp v. Roche, 92 N. Y. 329, 334. But in Danziger r. Hoyt, 120 X. Y. 190, 194, the court say: "But if ratification of the latter (i. e.) the debtor may be deemed essential, it appears by the fact of her asserting payment and seeking to avail herself of the benefit of the receipt as a defense." 44 Stark's Admr. i: Thompson's Exrs., 3 T. B. Mon. 296, 302. 46 Armstrong r. School District, 28 Mo. App. 169. See also Carter v. Black, 4 Dev. & Bat. 425, 427. 46 See supra, p. 242 et seq.; Armstrong r. School District, 28 Mo, App. 169. CANCELLATIOiV AND SURRENDER. 843 Avill then still continue liable.'*''' In this case, too, if it be granted that satisfaction by a third person is not a legal discharge, the cor- rectness of the result depends on the doctrine held as to the right of parties to a contract in which a third person is interested, to rescind jt.^8 Cancellation and Surrender. Normal method of discharging specialty. At common law the normal method of discharging a contract under seal was by the cancellation <;f the document. As such a contract was not merely evidence of the intent of the parties, but was itself regarded as the o1)ligation, even more fully than a railroad or government bond is to-day, when the physical identity of the document was destroyed, the obligation ceased to exist.^^ Though the destruction of the document was accidental, the legal obligation was destroyed, and equitable relief was neces- sary to save the obligee's rights.^^ Surrender insufficient in early law. In order to give a contract under seal validity, delivery by the obligor was essential. What constitutes -delivery is a question which to-day depends largely on intention, but •originally the physical act of delivery was undoubtedly the essential thing. Surrender might have been regarded as the converse of de- livery and for that reason as undoing the effect of delivery. This, however, was not the doctrine of our early law, which held that " even though the specialty was upon payment surrendered to the obligor, the latter was still not safe unless he cancelled or destroyed the fcpecialty, for, if the obligee should afterwards get possession of the instrument, even by a trespass, the obligor, notwithstanding the pay- ment, the surrender, and the trespass, would have no defence to an action at law by the obligee." ^^ Equitable relief. Equity, however, early gave relief in such cases and at the present day there can be no doubt that even a voluntary 47 Walter r. James^ L. R. G Ex. 124. In this case the creditor when he received payment thought that it was authorized by the debtor, and the fact that he accepted tlie payment under this mistake had weight with the court. 48 See supra, p. 273, et seq. 49 9 Harv. L. Rev. 49, by Professor Ames. This is illustrated by the doctrine in regard to alteration. See infra, p. 845 ct seq. 50 9 Harv. L. Rev. 49. 51 9 Harv. L. Rev. 49, 54, by Professor Ames, citing " Y. B. 5 Hen. IV. 2-6 ; Y. B. 22 Hen. VI. 522-4; Y. B. 37 Hen. VI. 14-3; Y. B. 5 Ed. IV. 4-10; Y. B. 1 Hen. VII. 14-2; Waberley v. Cockerell, Dy. 51, pi. 12; Cross r. Powell. Cro. El. 483; Atkins v. Farr, 2 Eq. Ab. 247; Licey v. Licey, 7 Barr, '251. 253. In the last case Gibson, C. J., said: 'Even if a bond thus deliv- ered [to the obligor] but not canceled come again to the hands of the obligee, though it be valid at law, the obligor will be relieved in equity.' " 844 DISCHARGE OF CONTRACTS. surrender of a bond, if made with intent to extinguish it, woulil be effectual between the parties. ^^ Bills and notes — Insurance policies. Cancellation and surrender being appropriate means of discharge for sealed contracts are similarly ap- propriate to discharge other formal obligations as bills and notes''*'' or policies of insurance, and in jurisdictions where written contracts are by statute presumptively founded on good consideration^'* it may be that all written contracts are thereby given a formal cliaracter. Simple contracts. The effect of cancellation or surrender upon writ- ten contracts which are not formal contracts must depend somewhat upon the particular circumstances of the case. Surrender or cancella- tion frequently forms part of and is evidence of a parol agreement to discharge the contract. The validity of such an agreement depends upon rules previously considered."'^ Even though it is impossible to make out a binding parol contract of discharge, the rules of evidence may save the original promisor from liability upon his contract ; for the voluntary cancellation of the writing by the promisee may have deprived him of his only legal evidence.^*^ If the writing is still in existence the mere fact that it has been surrendered would not, however, it seems, prevent its use in evidence, or prevent the admis- r>2 Hurst v. Beach, 5 Madd. 351; Beach r. Endress, 51 Barb. 570; Picot r. Sanderson, 1 Dev. 309; Wentz v. Dehaven, 1 8. & R. 317; Licey v. Liccy, 7 Pa. 251; Albert's Exrs. r. Ziegler's Exrs., 29 Pa. 50; Piercy's Heirs v. Piercy's Exrs., 5 W. Va. 199. 53 Voluntary destruction of a note operates as a discharge of tlie niakor. Gilbert v. Wetherell, 2 Sim. & St. 358; Darland v. Taylor, 52 la. 503; Mc- Donald i\ Jacicson, 56 la. 643; Fisher o. Mershon, 3 Bibb. 527; Vanauken c. Hornbeck, 2 Green, 178; Blade V. Noland, 12 Wend. 173. So of a bond. Gardner v. Gardner, 22 Wend. 526; Bond V. Bunting, 78 Pa. 210, 218; Bees i\ Rees, 11 Rich. Eq. 86. Surrender of a note to the maker with intent to extinguish it has that effect. Sherman v. Slierman, 3 Ind. 337; Gibson v. Gibson, 15 111. App. 328; Denman v. McMahin, 37 Ind. 241, 246; Peabody r. Peabody, 59 Ind. 556; Slade V. Mutrie, 156 Mass. 19; Stewart r. Hidden. 1.3 Minn. 43; Marston V. Marston, 64 N. H. 146; Vanderbeck v. Vanderbeck, 30 X. J. Eq. 205; L-irkin r. Hardenbrook, 90 N. Y. 333; Jaffray r. Davis, 124 X. Y. 164, 170; Kent r. Revnolds, 8 Hun, 559; Bridgers r. Hutchins. 11 Ired. 68: Melvin r. Bulliud. 82 "^N. C. 33; Dittoe's Admr. r. Cluney's Exrs., 22 Ohio St. 436; Ellsworth /•. Fogg, 35 Vt. 355; Lee's Exrs. r. Boak, 11 Gratt. 182. If the surrender was after maturity it is immaterial whether surrender is still to be regarded as an equitable defense or has become a legal extinction of the obligation. If, however, surrender was before maturity, and the document was WTongfully obtained and put in circulation also before maturity by a party to whom it was made payable or indorsed, the question would be vital. Where the Negotiable Instruments Law is in force (see ftiipra, p. 821, n. 47), it would seem that the maker would be liable again to a holder in due course. Crawford's Neg. Inst. L., § 35. 54 See supra, p. 217, n. 25. 55 See supra, p. 815 ct seq. 56 See infra, p. 847. ALTKUATIUX : CO.WKYAXCES AXD COVEXANTS. 845 sion of secondary evidence of its contents if the holder of it refused to produce it. Alteration. Common-law rule — Pigot's case. It was an early doctrine of the common law that alteration avoided a deed. The leading case is rigot's case^"' and the doctrine is stated therein by Lord Coke, as follows: "These points were resolved: 1. Wlien a lawful dei^d is rased, whereby it bet-omes void, the obligor may plead non rst factum, and give the matter in evidence, because at tlie time of the plea pleaded, it is not his deed. " Secondly, it was resolved, that when any deed is altered in a point material, by the plaintiff himself, or by any stranger, without the privity of the obligee, be it by interlineation, addition, rasing, or by drawing of a pen llnough a line, or through the midst of any material word, that the deed thereby becomes void. ... So if the obligee himself alters the deed by any of the said ways, although it is in words not material, yet the deed is void: but if a stranger, without his privity, alters the deed by any of the said ways in any point not material, it shall not avoid the deed. " If a deed contains divers distinct and absolute covenants, if any of the covenants are altered by addition, interlineation, or rasure, this misfeasance ex post facto, avoids the wliole deed, as it is held in 14 H. 8, 25, 26. For although they are several covenants, yet it is but one deed, 3 H. 7, fol. 5, a. If two are bound in a bond, and afterwards the seal of one of them is broken off, this misfeasance ex post facto avoids the Avhole deed against both. Tide the case of Matthewson, Mich. 39 &. 40 Eliz. in the Fifth Part of ni}' Reports, fol. 23 a." Distinction between Conveyances and Covenants. Conveyance though altered vests title, but covenant must be valid when enforcement sought. A distinction should be observed between a deed of conveyance and a bond or covenant obliging the maker to some future performance. If a conveyance is valid when delivered, the title to the property vests in the grantee, and no subsequent altera- tion^* or loss^^ of the deed can affect the title of the grantee, though S7 11 Coke, 2(J&. 58Argoll r. Cheney, Palmer. 402; Doe v. Hirst, 3 Stark. 60; Agricultural Cattle Ins. Co. r. Fitzgerald, 10 Q. B. 432; West r. Steward, 14 M. & W. 47; I^nited States i\ West, 22 How. 31.5; Mallory c. Stodder. 6 Ala. 401; Sharpe r. Orme, 61 Ala. 263: Ivansier r. Vanorsdol, 50 la. 130; HoUingsworth v. Holbrook, 80 la. 151: Slattery r. Slattery, 120 la. 717; Barrett r. Tliorn- dike, 1 Me. 73; Goodwin r. Norton. 02 Me.^532; Hatch r. Hatch, 9 Mass. 307; Chessman i\ \\ hittemore, 23 Pick. 231, 233; Alexander r. Hickox, 34 Mo. 496; Woods V. Hilderbrand. 46 [Mo. 284; Donaldson r. Williams, 50 Mo. 407; Holladay-Klotz Co.r. T. J. Moss Co., 89 Mo. App. 556: Chesley r. Frost, 1 N. H. 145; Jackson r. Gould, 7 Wend. 364; Herrick r. Malin. 22 Wend. 388; Waring r. Smyth, 2 Barb. Ch. 119; Eifener r. Bowman. 53 Pa. 318; Booker r. Stivender, 13 Rich. L. 85, 90: :\Iorgan r. Ehun, 4 Yeig. 375; Stanley r. Epperson, 45 Tex. 045; Xorth r. Henneberry, 44 Wis. 306. In Argoll V. Cheney, Palmer. 402, a little boy had torn the seals off a deed to guide the uses of a recovery, but the effect of tlie deed was held not destroyed. r:»lVolton r. Bishop of C:irlis]e. 2 H. Bl. 259, 263. per Eyre, C. J.: "^ God forl)id that a man should lose his estate by losing his title deeds." Donald- son r. Williams. 50 Mo. -'07. 846 DISCHARGE OF CONTRACTS. for want of evidence he may find difficulty in enforcing his title. A bond or covenant for future performance, however, must be valid M"hen the obligee seeks to enforce it, and the rules in Pigot's case are applicable.^^ Conveyances of corporeal and incorporeal hereditaments. This distinction between conveyances and obligations, while clear on principle, was not that which the early English law adopted. As to conveyances of cor- poreal hereditaments where there was a transfer of possession, it was early held that a subsequent alteration could not divest a title which had passed by the deed,^^ for it was said that the property lay in livery and the deed was but evidence of the transfer. But in the case of incorporeal hereditaments, which lie in grant, it was other- Avise; the title was regarded as continuously dependent on the deed, and a subsequent alteration divested a title previously passing by the deed.^2 60 Compare with Argoll v. Cheney, n. 58, supra; Bayly v. Garford, March, 125, where the seal of two obligors had been eaten by mice and rats, and this was thought to discharge a third person jointly bound with them, though his seal was uninjured. See also Michaell's Case, Owen, 8; Nichols v. Hay- wood, Dyer, 59a; Seaton t. Henson, 2 Lev. 220; S. C, 2 Show. 28. The numerous modern decisions are cited passim infra. 61 Bro. Ab. "Lease," pi. 16; Moore r. Waldron, 1 Rolle, 188; Argoll i\ Cheney, Palm. 402; Miller r. Manwaring, Cro. Car. 397, 399; Woodward i\ Aston, 1 Vent. 296; Nelthorp v. Dorrington, 2 Lev. 113; Lady Hudson's Case, cited in 2 Vern. 476, and Ch. Free. 235 ; Doe i . Hirst, 3 Stark. 00. 62 Miller V. Manwaring, Cro. Car. 397, 399; Moor v. Salter, 3 Bulstr. 79. In Miller v. Manwaring, the report reads: "And Jones and Berkley,, Justices, . . . took a difference when an estate loseth his essence by a deed,. viz., where it may not have an essence without a deed, as a ^ease by a cor- poration, or of tithes, or grant of a rent-cliarge, or such like, if the deed be rased after delivery, it determines the estate and makes it void, but when the estate may have essence without a deed, there although it be created by a deed, and the deed is after rased by the party himself or a stranger, that shall not destroy the estate although it destroys the deed." The court,, therefore, held rasure in a lease did not avoid the lessee's estate. Croke's. opinion was, however, that the rasure destroyed the deed and also the estate of the lessee, as by a surrender. So in Gilbert on Evidence (1st ed., p. 84, 6th ed., p. 75), " Tliere is a dif- ference to be taken between things that lie in livery, and things that lie in grant, for things that lie in livery may be pleaded without deed, but for a thing that lies in grant regularly a deed must be shown." See also ibUL 1st ed., p. 109. 6th ed., p. 95. In Woodward r. Aston, 1 Vent. 296, 297 (1677), "The Court said in this case that a rent or other grant was not lost by the destruction of the deed, as a bond or chose en action was. {Qucere, if the party himself cancel it.)"" Tlie Statute of Frauds introduced a new element into the case, since it made impossible the transfer or surrender' (except by operation of law) of an estate without a writing. Consequently even voluntary cancellation of a lease granting an estate within the statute could not operate as a sur- render. Magennis r. McCulloch, Gilb. Eq. 230; Leech r. Leech, 2 Ch. Rep. 100; Roe v. York, 6 East, 86. alteration: substantive law and evidence. 847 Distinction not now essential. By the present English law, however, a title once vested whether to corporeal or incorporeal property cannot be divested,*^ and probably the distinction of the earlier law would not now be followed in this country.®^ Substantive law and evidence — Equitable relief. The question of sub- stantive law is complicated with the question of evidence. The origi- nal reason that a deed was discharged by alteration applied equally to the loss or accidental destruction of such an instrument. The deed was itself the obligation, not merely evidence of it, and if the deed ceased to exist in its original form the obligation necessarily ceased. But an obvious consequence of alteration, loss, or destruction was a difficulty of proving that a deed of a particular character had been made. In case of accidental loss^ or destruction*'^ courts of equity early gave relief, and later courts of law made equitable relief un- necessary by accepting secondary evidence of the deed and enforcing its provisions.^''' But alteration was regarded as due, if not to wrong- doing, at least to laches of the obligee or grantee, and equity gave him no relief.^ If a court of law also would not receive in evidence 63 The old distinction was criticised by Eyre. C. J., in Bolton v. The Bishop of Carlisle, 2 H. Bl. 259, 2li3: "1 hold clearly that the cancelling a deed will not divest property, which has once vested by transmutation of possession, and I would go farther and say that the law is the same with respect to things which lie in grant. In pleading a grant, the allegation is that the party at such time ' did grant,' but if by accident the deed be lost, there are authorities enough to shew that other proof may be ad- mitted. The question in that case is, Whether the party did grant? To prove this the best evidence must be produced, which is the deed: but if that be destroyed, other evidence may be received to shew that the thing was once granted." 6-1 It was stated as law, however, in Lewis r. Pavn, 8 Cow. 71. C5 Griffin v. Boynton, 2 Nelson, 82; Collet v. Jaqiies, 1 Eq. Cas. Ab. 32, pi. 2 ; Lightbone r. Weeden, I Eq. Cas. Ab. 24 ; pi. 7 ; so in the case of a lost bill of exchange. Tercese r. Geray, Finch, 301. C6 Brown r. Savage, Finch, 184; Bennett r. Ingoldsby, Finch, 262; Brook- bank V. Brookbank, 1 Eq. Cas. Ab. 108, pi. 7 ; Wilcox v. Stuart, 1 Vern. 78 ; Sanson v. Rumsey, 2 Vern. 561, and note. r.TSee 1 Greenleaf, Ev. § 563,6.; Leake, Cont. (4th ed.), 580. In the case of a negotiable instrument the aid of a court of equity remained necessary, for the plaintiff in such a case could not fairly be given relief except upon the terms of giving a bond to indemnify the defendant from possible subsequent liability on the instrument if it were found. See 2 Ames Cas. B. & N. 38, 42, n. But this was not applied to non-negotiable instruments. Wain r. Bailey, 10 A. & E. 616. And in the case of negotiable instruments, reformed procedure or statutes have m,ade resort to equitv mmecessarv in manv juris- dictions. 2 Ames Cas. B. & N. 10, n. •ssSel. C. Chanc. temp. King, 24. In Arrison r. Harmstead. 2 Barr, 10], 193, counsel argued that equity would reform an altered deed in favor of a purchaser, but Gibson, C. J., interrupted. " Tlie deed is dead and equity cannot put life into it." This was cited with approval in Wallace r. Harm- sted, 44 Pa. 492, 494. See also Marcy V. Dunlap, 5 Lans. 365. 848 DISCHARGE OF COXTRACTS. the altered deed or secondary proof of its contents, the consequence would be to deprive any grantee or obligee of all legal rights in any case where such rights could be shown only by proof of the deed. Even if the deed vested an estate in the grantee prior to the altera- tion, no one would be bound to respect the title if the only legal evi- dence of it were destroyed. The case is analogous to that of the voluntary destruction of a conveyance by the grantee. Though this is not a reconveyance of the estate, the effect is similar if the grantee cannot prove his title nor show that the grantor's title has been di- vested. The rule of evidence is often broadly enough stated to lead to these results. In the last edition of Greenleaf on Evidence it is said that if a writing has been destroyed by the party wishing to prove its contents no secondary evidence will be received, unless the party can show that the destruction was not for the purpose of suppressing evidence or any fraudulent purpose.®^ Xo English cases, however, are cited which support so severe a rule. On the contrary, the English courts have held that not only in the case of alteration by a stranger may the altered deed be given in evidence as proof that a title passed,"*^ but that this may be done even where the altera- tion was chargeable to the party offering the deed,'^^ and similarly that the cancellation of a conveyance does not prevent proof by one consenting to the cancellation that such a conveyance was made."^ The Supreme Court oi Alabama has followed the English decisions."^ Rule in the United States. In this country alteration by a stranger does not generally avoid a deed, so that such a deed can of course be given in evidence, but it has been held generally, in accordance with the rule of evidence stated above, that if a material altera- tion is fraudulently made the altered deed cannot thereafter be given in evidence.''* Whether this in effect transfers the title back to the rai Greenleaf, Ev. (16th ed.). S 563,?), citing numerous decisions. TO Doe V. Hirst, 3 Stark. 60; Hutchins r. Scott, 2 M. & W. 809; West v. Steward, 14 M. & W. 47. See also Woods v. Hilderbrand, 46 Mo. 284; Jack- son r. Gould, 7 Wend. 364. Ti Agricultural Ins. Co. ;•. Fitzgerald, 16 Q. B. 432. 'i'2 ^^■ard r. Luniley, 5 H. & X. 656. See also S. C, 5 H. & N. 87 ; Harris r. Owen. West Ch. 527; S. C, stib nom^ Harrison v. Owen, 1 Atk. 520. "•'5 Alabama Knnd Co. r. Thompson, 104 Ala. 570 ; Burgess r. Blake, 128 Ala. 105 ; Harper r. Reaves, 132 Ala. 625. See also Woods v. Hilderbrand, 46 Mo. 284; Holladav-Klotz Co. v. T. J. Moss Co., 89 Mo. App. 556. 74Chpslev r. Frost,' 1 X. H. 145: Babb r. Clemson, 10 S. & R. 419; Withers r. Atkinson. 1 Watts, 236: Bliss r. INIcIntyre, 18 Vt. 466; Xewell r. Mayberrj-, 3 Tveigh. 2.50: Batchelder r. White, 80 Va. 103. So of a written contract. Hayes r. Wagner, 89 111. App. 390. The numerous decisions holding that a writing with an apparent altera- tion cannot be received in evidence imless the alteration is explained neces- sarily involve the same point. Decisions which allow such documents to be ALTEKATIOX : DESTRUCTION OF CONVEYAXCE. 849 grantor depends on whether the rule is aimed solely against the party guilty of the fraudulent alteration and his heirs or donees, or whether even a bona fide purchaser from him would acquire no better title. It may be urged that if a purchaser is protected the fraudulent per- son is in effect given the benefit of his title by being allowed to sell it, though he cannot directly enforce it. Accordingly the Penn- sylvania Supreme Court has held that a bona fide purchaser can no more assert a title than his wrongdoing grantor. '^^ This conclusion is supported by the rule in regard to executory contracts avoided by alteration. Even though the contract is negotiable an innocent pur- chaser acquires no rights."^ Rights of creditors. The rights of creditors are also frequently in- volved. If the owner of property is so deeply indebted that he could not legally make a voluntary conveyance of it, he cannot be allowed to produce the same effect by destroying the evidence of his title by alteration or cancellation of the conveyance. His creditors may levy on the property. If, however, the debtor cancelled a deed for ade- quate consideration, or if he had other property sufficient to satisfy his debts, the creditors should have no greater rights than their debtor had, except so far as recording acts or other statutes may pro- vide."'^ Voluntary destruction of conveyance. The voluntary destruction or cancellation by the grantee of a conveyance is not ordinarily done for any fraudulent purpose, but it is an intentional destruction of the appropriate evidence of his title, and it would seem that a court might as well decline to allow a grantee who has done this for the very purpose of depriving himself of his rights to prove his title by secondary evidence, as to deny that privilege to one who has been guilty of some fraudulent purpose. Many cases accordingly hold that neither the grantee nor any one claiming under him can assert his title after such cancellation.'^* These decisions have not met received in evidence on proof of the signature, leaving the question of altera- tion to be decided as an issue in the case, perhaps have a contrary implica- tion. These decisions are hereafter referred to. 75 Arrison v. Harmstead, 2 Barr, 191, 197; Wallace v. Harmstad, 15 Pa. 402 ; Wallace v. Harmstad. 44 Pa. 492. See also Marr v. Hobson, 22 Me. 321. But see Chesley i\ Frost, 1 N. H. 145. '0 See infra, p. 806. 7T See Sleeley's Creditors r. Steeley. 23 Ky. L. Rep. 996. 78Thompson'r. Thompson. 9 Ind. 323: Patterson r. Yeaton. 47 Me. 308. 314; Trull r. Skinner. 17 Pick. 213, 215: Howe r. Wilder. 11 Gray. 267 (but see Chessman r. Whittemore. 23 Pick. 231) ; :McAllister r. Mitchner, 68 Miss. 672, materially and wrongfully altered by the mortgagee, any executory right which the mortgage deed gives is thereby discharged,*" as for instance a right to enter on the mortgagors premises and take mort- gaged chattels.*^ But the mortgaged estate is still in the mortgagee. where the common law theory of the effect of a mortgage prevails.^^ "Where a mortgage is held to give the mortgagee only a lien, however, such alteration discharges the lien.** Alteration of the mortgage in such a way as to invalidate it does not, however, discharge a note given with tho mortgage for the mortgage debt.*^ When alteration of the note will not only avoid the note, but altogether discharge the debt, will be discussed hereafter."*^ Kinds of Contract to which the Eule is Applicable. Originally applicable to specialties. The rule denying recover}' where a writing has been altered might, so far as relates to the fundamental reason of the rule, have been confined to specialities, which by our law are more than mere evidence of obligations,^^ but this reason was early obscured, and the rule was largely rested on principles of evi- dence and policy that were equally applicable to any written con- tract. It is true that the rule was first extended from deeds to bills 8-1 Ward r. Lumley, 5 H. & N. 87, G56 : Withers r. Atkinson, 1 Watts. 236; Arrison r. Harmstead, 2 Barr, 191, 194; North r. Henneberry. 44 Wis. :50G. 85 Harris r. Owen. West Ch. 527; S. C. sub. iiom. Harrison v. Owen. 1 Atk. 520; Cutler v. Rose, 35 la. 456; Hollingsworth v. Holbrook, 80 la. 151: Johnson r. Moore, 33 Kan. 90; Coles v. Yorks, 28 Minn. 464; Pereau r. Frederick, 17 Neb. 117; Kime r. Jes.se, 52 Neb. 606; Waring r. Smyth. 2 Barb. Ch. 119; Marcy v. Dunlap, 5 Lans. 365; Mclntyre r. Velte, 153 Pa. 350; Powell r. Pearlstine. 43 S. C. 40.'?, 409. 8" Hollingsworth r. Holbrook, 80 la. 151: Bacon r. Hooker. 177 I\Ias.*. ."535. 87 Harris c. Owen. \\'est Ch. 527; S. C. sub. )iom. Harrison 7". Owen. 1 Atk. 520: Kendall r. Kendall, 12 Allen, 92 (see also Bacon v. Hooker. 177 ^lass. 335) ; Cheek r. Nail. 112 N. C. 370; Heath r. Blake, 28 S. C. 406. See also Williams r. Van Tuyl, 2 Ohio St. 336. 88 Johnson v. Moore, 33 Kan. 90; Eussell r. Reed. 36 Minn. 376; Powel! r. Banks, 146 Mo. 620; Kime r. Jesse, 52 Neb. 606; Waring r. Smyth, 2 Barb. Ch. 119; Mclntyre i: Velte, 153 Pa. 350. 89 Kime r. Jesse, 52 Neb. 606. See also Powell r. Pearlstine. 43 S. C. 403'. 90 In the January number of the Review. 1>1 " Tlie alteration was a cancellation of tlic deed, having the same effect that tearing off the seals would have had. This rule conies down to us from a time when the contrnct contained in a sealed instrument was bound sn in- dissolubly to the substance of the document that the soul ju'rished with the 853 DISCHARGE OF COXTRACTS. of exchange,^- which are in truth mercantile specialities,^''' being thcm- pelvos obligations, not merel}^ evidence; and the same may perhaps be said of policies or insurance^"* to which the rule was soon ex- tended,^'^ but the grounds on which these extensions were actually ]nade were those of lack of legal evidence and requirements 6f policy. Now applicable to all written contracts. It is not surprising therefore to find in this century tlie rule against alteration appliKl not only to all written contracts,^'' but even to writings like memoranda to satisfy the Statute of Frauds,^" which are written evidence, but cannot properly be regarded as written contracts. Excusable Alteration. Alteration by a stranger. The original reason for the rule against alteration was obviously aj^plicable as well when the alteration was made by a stranger, or wdien it was made by the obligee without fraudulent intent to correct a real or supposed mistake, as when made l\v the obligee with fraudulent purpose ; but after relief was given by equity and by the allowance of secondary evidence in cases of acci- dental loss or destruction, it would seem as if similar relief should have been given in case of alteration, where the obligee was innocent of any fraudulent intent, certainly where he had no part whatever in tlie alteration. But the English law did not take this step. Altera- body when the latter was destroyed or lost its identity for any cause." Per Holmes, C. J., in Bacon r. Hooker, 117 Mass. 335, 337. " Bonds and negotiable instruments are more than merely evidences of debt. The debt is inseparable from the paper which declares and constitutes it, bv a tradition which comes down from more archaic conditions." Per Holmes, J., in Blackstone i: Miller, 188 U. S. 189, 206. 92 Master v. Miller. 4 T. R. 320, 2 H. Bl. 141. The doctrine has been more frequ?ntly applied to bills and notes than to any otlier instruments. See numerous cases collected in 1 Ames Cas. B. & N. 447-449: Daniel, Neg. Inst. 03 See 2 Ames Cas! B. & N. 872 ; Langdell. Summ. Cont., § 49 et seq. 04 Ihid. 05 Campbell r. Christie, 2 Stark. 64; ForshaAV v. Chabert, 3 Brod. & B. 158. 9« Powell r. Divett, 15 East, 29; Forshaw v. Chabert. 3 Brod. & B. 158; United States Glass Co. v. West Va. Bottle Co., 81 Fed. Rep. 993:; Baxter I'. Camp, 71 Conn. 245; Johnson v. Brown, 51 Ga. 498; Kline v. Raymond, 70 Ird. 271; Andrews v. Burdick, 62 la. 714. 720; Davis r. Campbell. 93 la. 524 ; Lee V. Alexander, 9 B. Mon. 25 ; Phcenix Ins. Co. v. McKernan, 100 Ky. 97; Osgood v. Stevenson, 143 Mass. 399; Fletcher v. Minneapolis Ins. Co., 80 ilinn. 152; Burton v. .American Ins. Co., 88 Mo. App. 392; Consaul r. Sheldon, 35 Xeb. 247; Mever r. Huneke, 55 N. Y. 412; Martin v. Tradesmen's Ins. Co., 101 N. Y. 498; Cline v. Goodale, 23 Oreg. 406; American Pub. Co. r. Fisher. 10 Utah, 147; Consumers' Ice Co. r. Jennings, 100 Va. 719; Schwalm r. Mclntyre, 17 Wis. 232. "" Xichols r. Johnson, 10 Conn. 192; A. A. Cooper Wagon Co. r. Wooldridge. 98 Mo. App, 648; Schmidt r. Quinzel, 55 N. J. Eq. 792. So where several writinsrs are essential to prove the agreement of tlie parties, fraudulent altera- tion of one invalidates all, Meyer r. Huneke, 55 X, Y. 412. ALTERATION : WHEN EXCUSABLE. 853 tion by a stranger still operates as a discharge of a contract, pro- vided the instrument was at the time in the custody of the obligee, tor it is said that " a party who has the custody of an instrument made foii his benefit is bound to preserve it in its original state.'" ^^ Why he should be bound to more care to prevent alteration by a stranger than to prevent the total loss or destruction of the instru- ment, is difficult to see. An alteration made under a mistake of fact has been held not fatal ;^ but otherwise if the alteration was inten- tionally made and the mistake was only as to the legal effect of the contract.^ In this country the more equitable rule prevails that altera- tion by a stranger or spoliation, as it is often called, will not discharge the obligation.^ The rule is the same for alteration by the obligee's agent or attorney if the obligee himself did not authorize it;^ or by 98 Davidson r. Cooper, 13 M. & ^Y. 343, 352. osRaper r. Biikbeck, 1.5 East, 17; Wilkinson v. Johnson, 3 B. & C. 428; Prince v. Oriental Bank, 3 App. C'as. 325. These were cases where the can- cellation under a mistake of fact of the name of a party to an obligation was held not to discharge the party. 1 Bank of Hindustan r. Smith, 36 L. J. (N. S.) C. P. 241. The distinction between this case and those in the preceding note seems trivial. The court may well have been influenced by the fact that there were in this case equi- table grounds for holding the defendant not liable, aside from any question of alteration. 2 United States V. Hatch, 1 Paine, 336; Davis v. Carlisle, 6 Ala. 707; Nichols r. Johnson, 10 Conn. 192; Orlando V. Gooding, 34 Fla. 244; Condict r. Flower, 106 111. 105; Paterson v. Higgins, 58 111. App. 268; State r. Berg, 50 Ind. 496; Eckert v. Louis, 84 Ind. 99; Lee V. Alexander, 9 B. Mon. 25: Blakey V. Johnson, 13 Bush, 197; Chessman v. Whittemore, 23 Pick. 231; Drum v. Drum, 133 Mass. 566; Church v. Fowle, 142 Mass. 12; Croft V. White. 36 Miss. 455; Medlin v. Platte Co.. 8 Mo. 235; Moore v. Ivers, 83 Mo. 29; Fisherdick r. Hvitton, 44 Neb. 122, 127; Perkins Windmill Co. r. Tillman. 55 Neb. 652: Schlageck r. ^^'idhahn. 59 Neb. 541: Goodfellow r. Inslee, 1 Beas. 355; Rees r. Ovtrbaugh. 6 Cow. 746: Lewis v. Pavn, 8 Cow. 71; Dinsmore r. Duncan, 57 N. Y. 573; Martin l: Tradesmen's Ins.'Co., 101 N. Y. 498; Evans V. William- son, 79 N. C. 86: Whitlock r. Manciet, 10 Oreg. 166: Neff v. Horner, 63 Pa. 327; Robertson r. Hay, 91 Pa. 242; Pope v. Chafee, 14 Rich. Eq. 69; Harrison V. Turbc.ille, 2 Huniph. 242; Boyd r. McConnell, 10 Humph. 68; Murrav V. Peterson, 6 Wash. 418; LTnion Nat. Bank r. Roberts, 45 Wis. 373. See also cases cited in the following note. So in Ireland, Swiney v. Barry, 1 Jones. 109. Contra, Den v. Wright, 2 Halst. 175, 177. 3 Forbes v. Taylor, 139 Ala. 286; Langenberger r. Kroeger, 48 Cal. 147; Brooks t: Allen, '62 Ind. 401; Mathias i: Leathers, 99 la. 18, 21; Nickerson V. Swett, 135 Mass. 514; White Co. r. Dakin, 86 Mich. 581; Christian County Bank v. Goode, 44 Mo. App. 129; Hays r. Odom, 79 Mo. App. 425; Hunt V. Gray, 35 N. J. L. 227 ; Rees r. Overbaugh, G Cow. 746 ; Casoni V. Jerome, 58 N. Y. 321; Martin r. Tradesmen's Ins. Co., 101 N. Y. 498; Gleason r. Hamilton, 64 Hun. 96, 138 N. Y. 353; Waldorf r. Simpson. 15 N. Y. App. Div. 297 ; Fullerton v. Sturges, 4 Ohio St. 529 ; Acme Harvester Co. r. Butterfield, 12 S. Dak. 01 ; Port Huron Co. r. Sherman, 14 S. Dak! 461 ; Deering Harvester Co. r. White, 72 S. W. Rep. 962 (Tenn.) : Bigelow r. Stilphen, 35 Vt. 521; Yeager r. Musgrave, 28 W. Va. 90; Jcsup v. City Bank, 14 Wis. .331. But see contra. White Sewing Machine Co. r. Saxon, 121 Ala. 399; Hollingsworth r. Holbrook. 80 la. 151 (cp. Mathias r. Leathers, 89 la. 18) : Gettysburg Nat. Brink r. Chisholm, 169 Pa. 564. See also Pew V. Laughlin,'3 Fed. Rep. 39; Bowser r. Cole, 74 Tex. 222. If the principal 8.j4: discharge of contracts. a trustee."'' So far as negotiable instruments are con^cerned, however, ,ii diversion to the English doctrine in regard to alteration by a stranger has been brought about in states which have enacted the Negotiable Instruments Law. The draftsman of that law copied the section on the subject from the English Bills of Exchange Act.'' Alteration by the obligor. An unauthorized alteration by the obligor is, of course, not allowed to affect the rights of the obligee.*^ Innocent alteration by the obligee. The propriety of relieving a party v.-ho has altered a written contract by allowing secondary evidence of the contract depends on his freedom from fraudulent or wrong- ful intent in making the alteration. Therefore, if the alteration was made to express more clearly the intent of the parties or to correct a real or supposed mistake, the contract is in this country generally held not avoided.''' Similarly, a cancellation by mistake is not fatal.^ seeks to take the benefit of the agent's alteration, the effect is the same as if the principal had himself made the alteration. Nichols r. Rosenfeld, 181 Mass. ,525: Sherwood v. Merritt, 83 Wis. 2.32. 4Flinn r. Brown, G Rich. L. 209. But see contra, as to an administrator, McMurtrev /". Sparks, 71 Mo. 12G. 5 Xeg. liist. Act.. § 20.5, following Bills of Exch. Act, § 64. See IG Harv. L. Rev. 2G0; HoiTman v. Planters" Bank, 99 Va. 480. But see Jeffrey r. Rosenfeld, 179 Mass. 50G. 6 Cutts V. United States, 1 Gall. G9 ; United States r. Spalding, 2 Mason 478; Lane V. Pacific, etc., Ry. Co.. 67 Pac. Rep. 6,56 (Idaho) ; Osborn r. Andrees, 37 Kan. 301; Hughes v. Littlefield, 18 Me. 400; Natchez r. Minor, 17 Miss. 544: Fritz -v. Commissioners, 17 Pa. 130. 7 Brutt r. Picard, Ryan & M. 37 : Winnipisiogee Paper Co. r. New Hamp- shire Land Co.. 59 Fed. Rep. 542: Montgomery R. Co. v. Hurst, 9 Ala. 513; Webb V. Mullins, 78 Ala. Ill; Turner r. Billagram. 2 Cal. 520; Sill r. Reese, 47 Cal. 294: Sullivan v. California Realty Co., 75 Pac. Rep. 767 (Cal.); Hotel Lanier Co. r. -Johnson. 103 Ga. 604: Burch r. Pope, 114 Ga. 334; Miller v. Slade, 116 Ga. 772; Shirley r. SwaflFord. 45 S. E. Rep. 722 (Ga.) ; Uav c. Fort Scott Co., 53 111. App. 105: Osborn c. Hall, 160 ind. 153: Busjahn r. 'McLean. 3 Ind. App. 281; Andrews r. Burdick, 62 la. 714; Barlow r. Buckingliam, 68 la. 169; Duker r. Franz, 7 Busli, 273; Thornton r. Appleton, 29 Me. 298; Croswell v. Labree, 81 Me. 44; Outoun v. Dulin, 72 Md. 536; Ames V. Colburn, 11 Gray, 390: Produce Exchange Trust Co. v. Bieberbach, 176 3ilass. 577; James r. "Tilton, 183 ]Mass. 275; McRaven r. Crisler, 53 Miss. 542: Foote r. Hambrick, 70 Miss. 157: Cole v. Hills, 44 N. H. 227; Seymour 1\ Mickey, 15 Ohio St. 515; Wallace V. Jewell, 21 Ohio St. 163; Cl'ine v. Goodale. "23 Oreg. 406; Wallace v. Tice. 32 Oreg. 283 (c/>. Savage V. Savage, 36 Oreg. 268) ; Express Pub. Co. V. Aldine Press. 126 Pa. 347: Gunter r. Addv. 58 S. C. 178: McClure r. Little, 15 Utah. 370: Wolferman r. Bell, 6 Wash. 84; Young v. Wright. 4 Wis. 144; Gordon r. Robertson, 48 Wis. 493. But see contra. Warpole r. Ellison, 4 Houst. 322: Kelly r. Trumble, 74 111. 428; Soaps r. Eichberg, 42 111. App. 375, 381: Hamilton r. Wood, 70 Ind. 306: Letcher r. Bates, 6 J. J. Marsh. 524: Phcenix Ins. Co. r. McKernan, 100 Ky. 97, 103; Evans r. Foreman, 60 Mo. 449 ; Bowers r. Jewell, 2 N. H. 543 ; Lewis v. Rchenck. 3 C. E. Green, 459 : Wegner r. State, 28 Tex. App. 419. And see also Green v. Sneed, 101 Ala. 205; White Sewing Machine Co. V. Saxon. P^l Ala. ,3f,9: Heath r. Blnke. 28 S. C. 406; Capital Bank r. Armstrong. 62 Mo. 59; Otto r. Halflf, 89 Tex. 384. ^Lowremore r. Bervv, 19 Ala. 130; Brett V. Marston. 45 VTe. 401: Russell r. Longmoor, 29 Neb. 209. See also Chamber] in r. White, 79 111. 549. ALTEKATIOX : WHEX EXCUSABLE. 855 Authorized alteration — Sealed instruments. As to alterations author- ized Ijy the obligor, the common law made a distinction between an Iowa Vallev Bank r. Sigstad, 90 la. 491; Levi r. Mendell, 1 Duv. 77. 47 Powell i\ Pearlstinc. 43 S. C. 403; Bowser i: Cole, 74 Tex. 222. See also JMoelle V. Sherwood, 148 U. S. 21. Cp. Burnett r. McCluey, 78 Mo. 670. 48 Carlisle r. People's Bank, 122 Ala. 446; Johnson v. Wore, 33 Kai. 90. 49 Kelly i\ Trumble. 74 III. 428. 50 Hirschman r. Budd, L. R. 8 Ex. 171; Inglish r. Breneman, 5 Ark. 377; Wyman r. Yoemans, 84 JIl. 40o; Hamilton v. Wood, 70 Ind. 306; McCormick Co. r. Lauber, 7 Kan. App. 730; Lisle v. Rogers, 18 B. Mon. 528; Britton v. Dierker, 46 Mo. 591; McMurtrev r. Sparks, 71 Mo. App. 126; Bovers r. .Towell, 2 X. II. 543; Crawford v. West Side Bank. 100 X. Y. 50; Miller v. Gilleland. 19 Pa. 119: Tavlor v. Tavlor. 12 Lea, 714. '■"^ State V. Smith, 9 Hovist. 143; Morrison v. Welty, 18 Md. 169: Rawson r. Davidson, 49 ^lich. 607: Fred Heim Co. r. Hazen, 55 ^Mo. App, 277; Biery r. Haines, 5 Whart. 563 ; Vaughan r. Fowler, 14 S. C. 355. 52 Porter r. Dobv. 2 Rich. Eq. 49; Organ r. Allison, 9 Baxt. 459; Piercv v. Piercv. 5 W. Va. "l90. 5"-Truott. r. Wainwritrht, 9 111. 411. 54 Wood r. Steele, 6' Wall. 80: Wyman r. Yoemans, 84 111. 403; I'ost r. Losey, 111 Ind. 74; McCormick Co. v. Lauber. 7 Kan. Apn. 730; First Bank r. Pavne. 19 Kv. L. Rep. 839. But see contra. L'nion Bank v. Cook. 2 ('ranch r. C."218. s^'Prim r. Hammel, 134 Ala. 6.52; Johnston v. :\Iav. 76 Ind. 293. See also Do-ine r. Eldridge. 16 Grav. 254. s'^Post /-. Losev, 111 Ind. 74; Board r. Greenleaf. 80 [Minn. 242: Whitmer V. Frye, 10 :\Io. 348. But see contra, Burkholder v. Lapp's Ex., 31 Pa. 322. 8()2 DISCIIAROK OF COXTltACTS. added/'^'^ or of a prior obligor.^^ Tlie addition of a collateral guaranty does not, however, discharge the principal debtor,'^^ for the addition neither increases nor diminishes his immediate liability or his ulti- mate equitable liability. The same is true of the erasure of the name of a collateral guarantor."*^ Materiality of the addition of a surety's name. If, however, a surety's name is added in such a way that he incurs or purports to incur at law a joint obligation with others previously bound by the instrument, the alteration seems technically a material one. though his equitable lial)ility was one of suretyship, for the alteration if effective would create a new and different obligation at law on the part of the pre- vious obligors. They could be sued Jointly with the surety. The answer adopted in one decision*^^ to this reasoning is that the surety having signed after delivery of the note was not in fact a joint maker, and that as the original maker could effectively object to the joinder of the new signer, the former's obligation remained unaltered. But this is unsound. An alteration to which he has not consented never binds an ol)ligor. He is discharged not because an alteration is in legal effect wrought upon his obligation, but because it purports to be; and in the case in question the obligation of the defendant M'as on the face of the instrument changed to a joint obligation. Xever- theless, on account of the hardship of the case the addition has in ^TGardnpr v. Walsh, .5 E. & B. 83: Taylor V. Johnson, 17 Ca. .521: Ilonry v. Coats. 17 Ind. 161: Bowers v. Brigj-s. 20 Ind. 139; Houck V. Graham. "l06 Ind. 195: Hall's Adm. v. :McHenry, 19 la. 521; Hamilton r. Hooper, 46 la. r>[5: Berryman v. Manker, 56 la. 150: Sullivan f. Rudisill, 63 la. 158: Shipp L\ Suggctt. 9 B. Mon. 5; Singleton r. Mel^ucrrv, 85 Kv. 41; Lunt ;:. Silver, 5 Mo. App. 186; Wallace V. Jewell, 21 Ohio St. 'l6.?: Harper v. Stroud, 41 Tex. 367. But see contra. Produce Exchange Trust Co. v. Bieberbach, 176 Mass. 577, 590; Gano v. Heath. 36 Mich. 441; Union Banking Co. r. Martin's Es- tate, 113 Mich. 521; Standard Cable Co. V. Stone, 35 N. Y. App. Div. 62, 65. The alteration is none the less material if the added signature is forged. Farmers' Bank v. Myers, 50 Mo. App. 157: Harper c. Stroud, 41 Tex. 367. If the addition is without the knowledge of the obligee, it is an alteration I)v a stranger and hence in this country would generallj' have no effect. Anderson V. BeHenger, 87 Ala. .334: Ward V. Hackett. 30 Minn. 150; Standard Cable Co. v. Stone, 35 N. Y. App. Div. 62. 58 Haskell i. Champion, .30 Mo. 136. ^^ Ex parte Yates. 2 De G. & J. 191: First Bank V. Weidenbeck, 97 Fed. Rep. 896 (C. C. A.) ; Burnham v. Gosnell., 47 Mo. App. 637: Wallace r. .Tevvell, 21 Ohio St. 163, 172; Hutches V. J. I. Case Co., 35 S. W. Rep. 60 (Tex. Civ. App.). See a fortiori cases in note 62. infra. Cp. Oneale r. Long, 4 Cranch, 60. "0 First Bank v. Weidenbeck. 97 Fed. Rep. 896 (C. C. A.): Broughton r. West. 8 Ga. 248; People r. Call. 1 Denio, 120: Huntina-ton r. Finch. 3 Ohio St. 445. '••1 :McCaughev r. Smith. 27 N. V. 39. See also Ex parte Yates. 2 De G. & J. 191; Bowser V. Rendell, ?1 Ind. 128. ALTERATION,: WHEN MATERIAL. 863 si.C'li a case frequently ])een held immaterial.''- But there are many cases enforcing the strict rule.*'^ Criticism of decisions. In two cases®^ where the name added created or purported to create a several liability on the part of the new signer the previous signer was held not discharged because no joint liability was created. The terms of the legal obligation of the previous signer are certainly not atfected l)y such an addition, but if the consequence of carrying out the obligation assumed by the new signer is that equitably the latter must pay equally with the previous signer, the contract is certainly altered by the added signature. Such is the situation where the new signer is a co-surety. If, however, the only previous signer is the principal debtor, the contract is not altered, for he remains liable immediately at law and ultimately in equity for the whole. What alterations are immaterial. The following changes have been held immaterial : the alteration of the name of the grantee^ or grantor'^'' or other party*^^ by correcting a mistake in spelling or initials, where no change in the person designated is intended or apparently indicated; the insertion of a more specific description of the mortgaged property in a chattel mortgage ;'^^ the addition in a c-^Ex parte Yates. 2 De G. & J. 191; Mersman v. Werges, 112 U. S. 139; Montsoi'iery Railroad r. Hinst, 9 Ala. 513; Rudiilph c. Brewer, 96 Ala. 189 (c-'erruledj ; Bowser v. Rendell, 31 Ind. 128; Taylor V. Aconi, 1 Ind. Ty. 430; Stone V. White, 8 Gray, 589: Miller i\ Finley. 20 Midi. 249; Barnes i: Van Keuren, 31 Neb. 165; Royse v. State Bank, 50 Neb. 10; McCaughey v. Smith. 27 N. Y. 39; Hecker c' Mahler, 04 Ohio St. 398. See also Rvan v. First Bank, 148 111. 349; Heath v. Blake. 28 S. C. 406. P3 Gardner v. Walsh, 5 E. & B. 83; First Bank r. Weidenbeck, 81 Fed. Rep. 271 (reversed. 97 Fed. Rep. 890) ; Brown c. Johnson, 120 Ala. 93 (overrnling Montgonierv R. Co. v. Hurst, 9 Ala. 513. and, it seems, Rndulph v. Brewer, 96 Ala. 189) ; Soaps r. Eiehberfj, 42 111. App. 375: Bowers ,-. Brip-fjs. 20 Ind. 139; Nicholson v. Combs, 90 Ind. 515: Dickerman r. IMiner, 43 la. 508; Hamilton r. Hooper, 40 la. 515; Sullivan r. Rudisill, 03 la. 158; Brownincj r. Gosnell, 91 la. 448; Rhoades r. Leach, 93 la. 337: Shipp r. Sus'irett. i) B. ^lon. 5: Singleton {'. McQuerry, 85 Ky. 41; Lunt r. Silver, 5 Mo. App. 186; Farmers' Bank v. Myers, 50 Mo. App. 157: Allen r. Dornan, 57 ^lo. App. 288; Wright v. Kellev, 4 Lans. 57; Harper r. Stroud, 41 Tex. 367; Ford r. Cameron Bank, 34 S.' W. Rep. 684 (Tex. Civ. App.). P-i Collins V. Prosser, 1 B. & C. 682 ; Brownell r. Winnie, 29 N. Y. 400. C5 State r. Dean, 40 Mo. 464; Cole v. Hills. 44 N. H. 227; Derby v. Thrall, 44 Vt. 413. «6 Banks r. Lee, 73 Ga. 25. «7 7?e Howgate & Osborn's Contract, [1902] 1 Ch. 451. 68 Starr r. Blatner. 70 la. 356; Chicago Trust Co. >: 0":Marr, 18 :\[oiit. 508. See also Heman v. Gilliam. 171 Mo. 258; Gunter /•. Addy, 58 S. C. 178. But see contra, McKinney r. Cobell, 24 Ind. App. 070. which went on the ground that the more specific descri])tion would charge third persons with notice. See further S. C, 31 Ind. App. 548. 8C-1: DISCHARGE OF CONTRACTS. bond to pay a judgment of a provision for payment of legal costs, since that was the effect of the bond originally;®-^ the insertion or alteration of the date when that does not alter the legal effect of the instrument by changing the day of maturity or otherwise;™ the in- sertion of the name of the obligor in the body of a bond, after the execution of the bond/^ since the obligor would be liable though his name had not been inserted; the alteration of the courses named in a deed where the alteration was required by the context and was in accordance with the facts;"- the insertion of a recital of unessential circumstances;''^ the addition"'* or cancellation"'' of words of descrip- tion, or the addition of a place of residence,'^'^ after the signature of an obligor; the erasure of the name of a surety, so far as the prin- cipal debtor is concerned;" the addition of a memorandum, which does not purport to form part of the document itself."^ Fnder this last rule the addition or alteration of the figures indicating the amount of a bill or note is immaterial, if the body of the writing clearly states the amount,'^ for the figures are rather a memorandum 69Kleeh v. Bard, 12 Wash. 140. 70 Parry v. Nicholson. 13 M. & W. 778; Gill r. Hopkins, 19 111. App. 74; Lee r. Lee, 83 la. 565; I'rather v. Zulauf. 38 Ind. 155; Terry v. Hazlewood, 1 Duv. 104; State v. Miller, 3 Gill, 335; Hepler r. Mt. Carmel Bank. 1)7 Pa. 420; Whiting V. Daniel. 1 Hen. & M. 391: Bashaw's Adm. v. Wallace's Adm., 45 S. E. Rep. 290 (Va.). But see Bills of Ex. Act, § 04 (2); Crawford, Neg. Inst. L., S 20G. 71 Smith r. Crooker, 5 Mass. 538. 72 Burnham r. Aver, 35 X. H. 351. 73 Eudesill r. Countv CoiU't. 85 111. 440. 74 :\Ianufactnrers' Bank v. Follett. 11 R. I. 92 (agent). 75 Burlinganie r. Brewster, 79 111. 515; ^Marx v. Lnling Assoc, 17 Tex. Civ. App. 408. 76 Struthers r. Kendall, 41 Pa. 214. Cp. Commercial Bank r. Patterson, 2 Cranch C. C. 340. 77Lvnch r. Hicks. SO Ga. 200: Loque r. Smith, Wright (Ohio), 10; Tutt r. Thornton, 57 Tex. 35. 7H [Manning r. Maronev. 87 Ala. 503; Maness v. Henry. 90 Ala. 454; Mente V. Townsend, 08 Ark. 391: Carr v. Welcli. 40 111. 88; HufT v. Cole, 45 Ind. 300: Toner /". Wagner. 158 Ind. 447; Liglit /•. Killinger, 10 Ind. App. 102; Reed r. Culp, 03 Kan. 595: Nugent r. Delhomme, 2 Mart. (0. S.) 308; Little- field c. Coombs. 71 Me. 110; Cole's Lessee r. Pennington. 33 Md. 470: Cam- bridge Bank r. Hyde. 131 Mass. 77: Boutelle o. Carpenter, 182 ^lass. 417; American Bank r. Bangs, 42 Mo. 450; Moore v. Macon Bank. 22 INIo. App. 084: JoJmson r. Parker. 80 Mo. App. 000: Palmer r. Largent. 5 Neb. 223; Edward Thompson Co. r. Baldwin. 02 Neb. 530: Kinard ;■. Glenn. 29 S. C. 590: Yost v. Watertown Steam Engine Co.. 24 S. W. Rep. 057 (Tex. Civ. App.) : Tivmper v. Hemphill. 8 Leish. 023. See also Sawyer r. Campbell, 107 la. 397 : Steelcv's Credr's r. Steelev, 23 Ky. L. Rep. 990.' Cp. Warrington r. Early. 2 E. & B. 763: Woodworth'r. Bank of America. 19 Johns. 391. 79 Horton r. Horton's Est.. 71 la. 448: Woolfolk r. Bank of America, 10 Busli. .i04: risk r. McNeal. 23 Neb. 720: Smith r. Smith. 1 R. T. 398. In "-^chryver r. Hawkes, 22 Ohio St. 308. a bona fide purchaser was allowed to recover on a note where the figures had been raised, though the amount was left blank in the body of the note and the figures had been written by the ALTERATION : WHEN MATERIAL. 865 than an integral part of the obligation. But if a memorandum col- lateral in form is in fact a part of the contract, the erasure of the memorandum is a material alteration.^^ Further illustrations — Test of materiality. Alteration by adding or changing a statement of the consideration does not ordinarily change the legal effect of an obligation, and if that is the correct test, as ia generally held, in the American decisions,^^ such an alteration is immaterial.^^ But a statement of consideration may be important as evidence of the terms of a transaction, and if added or erased fraudu- lently should make the writing inadmissible as evidence upon that question at least.*^ If the writing was the sole legal evidence by defendant in order to limit the amount for which the blank space for the amount could be filled in. 80 Cochran r. Nebeker. 48 Ind. 459; Scofield v. Ford, 56 la. 370; Johnson v. Heagan, 23 Me. 329: \Mieelock r. Freeman, 13 Pick. 105; Wait v. Pomeroy, 20 Mich. 425; Bay r. Shrader, 50 Miss. 326; Davis V. Henry, 13 Neb. 497; Gerrish v. Glines, 56 N. H. 9; Price v. TalHnan, Coxe (N. J.), 447; Benedict V. Cowden, 49 N. Y. 396; Stephens v. Davis, 85 Tenn. 271. See also Law v. Crawford, 67 Mo. App. 150. Cp. Thepold v. Deike, 76 Minn. 121; Law v. Blomberg, 91 N. W. Rep. 206 (NTeb.) ; Hubbard v. Williamson, 5 Ired. 397. But if a condition qualifying the liability of the maker of a note is written with a pencil and the condition is afterwards erased, the maker has been held liable, because of his negligence, to a bona fide purchaser without notice on the note in its altered form. Harvey v. Smith, 55 111. 224; Seibel v. Vaughan, 69 111. 257. This principle has been carried so far in some cases as to hold the maker liable when a condition written below the note has been cut off. Noll V. Smith, 64 Ind. 511; Phelan V. Moss, 67 Pa. 59; Zimmerman V. Rote, 75 Pa. 188. These decisions are on their facts opposed to several of the cases cited above. Cp. Brown r. Reed, 79 Pa. 370. 81 See the American cases here cited on materiality and immateriality. So in Caldwell v. Parker, Ir. Rep. 3 Eq. 519. This decision was dissented from in Suffell V. Bank of England. 9 Q. B. D. 555. 82Ri^gs V. St. Clair. 1 Cranch C. C. 606; Murray t: Klinzing, 64 Conn. 78; Gardiner v. Harback, 21 111. 129; Magcrs v. Dunlap, 39 111. App. 618; Cheek V. Nail, 112 N. C. 370. But see Knill r. Williams, 10 East, 431: Wright v. Inshaw, 1 Dowl. N. s. 802; Suffell v. Bank of England, 9 Q. B. D. 555, 571; Benjamin r. McConnel, 9 III. 536; Low v. Argrove, 30 Ga. 129. Cp. Richard- son V. Fellner, 9 Okl. 513. 83 See infra, p. 848. In Suffell r. Bank of England, 9 Q. B. D. 555, the Court of Appeal held an alteration of the number of a bank note material, though admitting the change did not alter the legal effect of the contract. In Craig- head r. McLoney, 99 Pa. 211, it was said, "Any alteration which changes the evidence or mode of proof is material," and in Brady v. Berwind- White Co.. 94 Fed. Rep. 28, 106 Fed. Rep. 824 (E. D., Pa.) : an addition was held material which did not change the meaning of the writing, because it avouUI render inadmissible parol evidence of facts contradicting the inserted words. This is in accordance with earlier Pennsylvania cases holding the addition of an attesting witness material. Foust v. Renno, 8 Pa. 378; Honning r. Werk- heiser. 8 Pa. 518. See also White Sewing Machine Co. r. Saxon, 121 Ala. 399; International Bank v. Parker, 88 Mo. App. 117. If this principle were logically applied it would overthrow many of the cases of immaterial altera- tion collected here. With the English and Pennsylvania decisions may be compared Rowe v. Bowman, 183 Mass. 488. In that case it was argued that the unauthorized addition of a United States revenue stamp was a material 55 866 DISCHARGE OF CONTRACTS. which the debt could he proved, the alteration woukl then he fatal to any recovery by the plaintiff; otherwise not.^'* The same may be said in regard to an alteration of the number of a bond or bank note;^ or of adding^ or erasing^''' the name of an attesting wit- ness, where the legal effect of the instrument is not affected by attestation, but only the mode of proof. Materiality is a question of law. AVh ether an alteration is material is a question of law, to be decided by the court.^ Assignment of Altered Contracts. Assignment of altered contract generally gives no validity — Contract with blanks. If a contract has been made void by alteration, no sub- sequent assignment, even if the contract is a negotiable bill or note^ can give it validity. The assignee or indorsee, though an innocent purchaser for value, has no greater rights than the previous holder.^^ alteration. The lack of a stamp, though it -would not have made the note inadmissible in evidence in tlie Massachusetts courts, would have made it inadmissible in the Federal courts. The addition therefore purported to enlarge the rights of the holder by affording evidence legal in the Federal courts. The plaintiff nevertheless recovered. 84 See infra, pp. 848, 873. 85 Such a change was held material in Suffell f. Bank of England, 9 Q. B. D. 555; but immaterial in Wvlie v. ^Missouri Pac. Rv. Co., 41 Fed. Rep. G2.3 ; State V. Cobb, 64 Ala. 127. 157: Comm. r. Emigrant Bank. 98 Mass. 12; Elizabeth v. Force, 29 N. J. Eq. 587: Birdsall r. Russell, 29 N. Y. 239: Note Holders v. Funding Board, 16 Lea, 46: Fisk's Claim. 11 Op. Atty. Gen. 258. Sometimes the number of a bo7id may affect the contract, as where bonds are paid as their numbers are drawn. See Suffell v. Bank of England, 9 Q. B. D. 555, 563. 86 Held immaterial in Hall v. Weaver, 34 Fed. Rep. 104 ; Ford v. Ford. 17 Pick. 418; State r. Gherkin, 7 Ired. L. 206; Beary v. Haines, 4 Whart. 17; Fuller V. Green, 64 Wis. 159. But see contra. White Sewing Machine Co. v. Saxon, 121 Ala. 399: Adams v. Frye, 3 Met. 107: Girdner v. Gibbons, 91 Mo. App. 412; Foust V. Renno. 8 Pa. 378; Hcnning v. Werkheiser, 8 Pa. 518. It is material if the legal effect of the instrument would be changed thereby, as by extending the Statute of Limitations. Milberry v. Stover, 75 Me.' 69; Homer v. Wallis, 11 Mass. 309. See also Richardson v. Mather, 178 111. 449. 87 Wickes i\ Caulk, 5 H. & J. 36. Cp. Nunnery v. Cotton, 1 Hawks, 222. 88 Steele V. Spencer, 1 Pet. 552; Pavne v. Long, 121 Ala. 385; Overton v. Matthews, 35 Ark. 146: Ofenstein r. ^Bryan, 20 App. D. C. 1 ; Milliken v. Marlin. 66 111. 13; Cochran v. Nebeker, 48 Ind. 459; Heard r. Tappan. 116 Ga. 930; Belfast Nat. Bank r. Harriman, 68 Me. 522; Fisherdick v. Hutton, 44 Neb. 122: Burnham r. Aver. 35 N. H. 351; Stephens v. Graham, 7 S. & R. 505: Kinard v. Glenn, 29 S. C. 590. 89 Master v. Miller. 4 T. R. 320; Vance v. Lowther, 1 Ex. D. 176; Suffell v. Bank of England, 9 Q. B. D. 555 ; Overton V. Matthews, 35 Ark. 146 ; Burwell V. Orr, 84 111. 465; Merritt v. Boyden, 191 111. 136; McCoy v. Lockwood. 71 Ind. 319; Eckert v. Louis. 84 Ind. 99, 104: Horn v. Newton Bank, 32 Kan. 518: Farmer v. Rand. 14 Me. 225: Schwartz r. Wilmer, 90 Md. 136; Belknap r. National Bank, 100 "Mass. 376; Cape Ann Bank /-. Burns, 129 Mass. 596; Hunter ?;. Parsons. 22 :\Iich. 96: Coles V. Yorks, 28 Minn. 464 (mortgage) ; Trigg V. Taylor. 27 Mo. 245; Hurlbut v. Hall. 39 Neb. 889; Erickson )•. First Bank, 44 Neb. 622; Haines v. Dennett, 11 N. H. 180; Gettvgburg Bank v. ALTERATION : EFFECT OF ASSIGNMEISTT. 867 How far tins rule is subject to an exception if the alteration con- sisted in filling in a blank left by the obligor is a disputed question. If the instrument was incomplete and a blank in it was later filled in accordance with express or implied authority, the case is covered by what has been said of alterations made by consent.''^ If the instrument was incomplete and the obligee or another authorized to fill the blank in a certain way fills it in a different way, the case is one of an agent exceeding his actual but not his apparent author- ity. In such a case his principal should be liable on the instrument in its altered form to an innocent purchaser buying without notice, actual or constructive, of the excess of authority .^^ Where, however, Chisholm. 169 Pa. 564. See also Burwell v. Orr, 84 III. 46.> ; Pereau r. Fred- eric, 17 Neb. 117; Walla Walla Co. v. Ping, 1 Wash. Ty. 339. Tlie English Bills of Exchange Act. § 64 (1), qualified this rule by the following proviso: "Provided that where a bill has been materially altered, but the alteration is not apparent, and the bill is in the hands of a holder in due course, such holder may avail himself of the bill as if it had not been altered, and may enforce payment of it according to its original tenour." And the substance of this proviso has been adopted in the Negotiable Instruments Law in this country. Crawford, Neg. Inst. L., § 205; Schwartz v. Wilmer, 90 Md. 13G, 143. «o Such cases are State v. Dean, 40 Mo. 464; Kinney v. Schmitt, 12 Hun, 521; Stahl V. Berger, 10 S. & R. 170; Walla Walla Co. v. Ping, 1 Wash. Ty. 339. See further, sujyra-, p. 855 ct seq. Issuing a negotiable instrument with blanks gives any hona fide holder authority to fill them with appropriate words. Michigan Bank r. Eldred, 9 Wall. 54*4: Huntington v. Bank, 3 Ala. 186; Visher v. Webster, 8 Cal. 109; Norwich Bank V. Hvde, 13 Conn. 279; Riddle V. Stevens, 32 Conn. 378, 390; Young r. Ward, 21 111. 223; Spitler r. James, 32 Ind. 202; Gillaspie v. Kelley, 41 Ind. 158; Lowden r. Schoharie Bank, 38 Kan. 533; Bank v. Curry, 2 Dana, 142; Cason r. Grant County Bank. 97 Ky. 487; Ives r. Farmers' Bank, 2 Allen, 236; Russell r. LangstaflFe, Doug. 5i4; Scotland Bank r. O'Connel, 23 Mo. App. 165; Mitchell r. Culver, 7 Cow. 336; Redlich r. Doll, 54 N. Y. 234; Waggoner r. Mlllington, 8 Hun, 142; Porter v. Hardy, 10 N. Dak. 551; Fullerton r. Sturges, 4 Ohio St. 529; Cox v. Alexander, 30 Oreg. 438; Wessell V. Glenn, 108 Pa. 104; Douglass r. Scott, 8 I-^igh, 43. But see contra, Inglish r. Breneman, 9 Ark. 122; Holmes r. Trumper, 22 Mich. 427; More- head r. Parkersburg Bank, 5 W. Va. 74 (overruled in First Bank v. Johns, 22 W. Va. 520). See also Young v. Baker, 29 Ind. App. 130; Greenfield Bank r. Stowell, 123 Mass. 196. This principle was applied to other contracts in Roe r. Town Ins. Co., 78 Mo. App. 452; Kinney i'. Schmitt, 12 Hun, 521. Cp. Solon v. Williamsburgh Bank, 114 N. Y. 122. 91 Hatch V. Searles, 2 Sm. & G. 147; Garrard r. Lewis, 10 Q. B. D. 30; Michigan Bank r. Eldred, 9 Wall. 544; Prim r. Hammel, 134 Ala. 652; Overton v. Matthews, 35 Ark. 146; Elliott v. Levings, 54 111. 214; Spitier v. James, 32 Ind. 202; De Pauw r. Bank, 126 Ind. 551, 557; Geddes v. Black- more, 132 Ind. 551 (cp. Pope r. Branch County Bank, 23 Ind. App. 210) ; Woolfolk r. Bank of America. 10 Bush, 517: Breckenridge r. Lewis, 84 Me. 349; Weidman v. Symes, 120 Mich. 657: Simmons r. Atkinson. 69 Miss. 862; 865: Redlich v. Doll, 54 N. Y. 234; Ross v. Doland, 29 Ohio St. 473; Cox V. Alexander, 30 Oreg. 438; Wessell r. Glenn. 108 Pa. 104; Orrick r. Colston, 33 Gratt. 377. But see Riddle r. Stevens, 32 Conn. 378; Holmes r. Trumper. 22 Mich. 427; Solon r. Williamsburgh Bank, 114 N. Y. 122; Porter v. Hardv, 10 N. Dak. 551. 8G8 DISCHARGE OF CONTRACTS. the instrument was complete when issued but contained spaces which could be filled in without exciting suspicion, there is no agency. If the obligor is liable, it must be because he was so negligent in leaving spaces which invited alteration that he cannot be allowed to assert the defense of alteration against an innocent holder. In the leading case of Young v. Grote^^ the maker was held liable where be had carelessly left an unfilled space after the amount of a check. The case seems sound in principle and has been followed in this country.^^ It has, however, been practically overruled in England.*^* Of course, it is only when spaces are left in such a way that the obligor must be regarded as careless in view of existing mercantile usage that the doctrine of Young v. Grote is applicable.^^ It is not applicable to instruments other than negotiable paper.^^ When a Debt Survives, though the "Writing is Destroyed. Formerly debt died with the writing — Reason for the rule. AMiile the doctrine of alteration was applied only to obligations under seal, there was no question that if the validity of the document was destroyed by alteration, the debt represented by the document was equally destroyed, and in no form of action could the holder get relief. But witli the extension of the doctrine of alteration to writings which are only evidence, and perhaps not the sole evidence, of the obligation, the technical reason for regarding the obligation as totally destroyed does not hold good, for the existence of a simple contract obligation So where a note apparently complete is delivered on the condition that another maker's name shall be obtained, the condition is invalid against an innocent purchaser. Ward v. Hackett, 30 Jlinn. 150. And see many de- cisions in accord in Ames Cas. Suretyship, 305, n. S2 4 Bing. 254. 93 Young V. Lehman, G3 Ala. 519; Winter r. Pool, 104 Ala. 580; Yocum V. Smith, 63 111. 321; Lowden v. National Bank, 38 Kan. 533; Blakey r. Johnson, 13 Bush, 204; Cason v. Grant County Bank, 97 Ky. 487; Isnard i'. Torres, 10 La. Ann. 103; First Bank r. Webster, 121 Mich. 149; Scotland County Bank V. O'Connel, 23 Mo. App. 106; Garrard v. Haddan, 67 Pa. 82; Zimmerman r. Rote, 75 Pa. 188 ; Johnson Harvester Co. r. McLean, 57 Wis. 258. But see Fordvce V. Kosminski, 49 Ark. 40; Walsh v. Hun, 120 Cal. 40; Cronkhite r. Nebeker, 81 Ind. 319; De Pau\v r. Bank of Salem, 126 Ind. 553; Knoxville Bank i\ Clarke, 51 la. 264; First Bank r. Zeims. 93 la. 140; Burrows V. Klunk, 70 Md. 451; Greenfield Bank r. Stowell, 123 Mass. 196; Burson v. Huntington, 21 INIich. 415; Simmons i\ Atkinson, 69 Miss. 862; Goodman r. Eastman, 4 X. H. 455; Worrall r. Gheen, 39 Pa. 388. 94 Schol field r. Earl of Londesborough. [1895] 1 Q. B. 536. [1896] A. C. 514. 85 See cases in note 93, ftupra, also Harvey r. Smith. 55 111. 224; Derr r. Keaough. 96 la. 397; Bank of Billings r. Wade, 73 Mo. App. 558; Leas r. Walls.' 101 Pa. 57. 9fll.ehman r. Central Co., 12 Fed. Rep. 595; Cronkhite ?•. Neboker. 81 Ind. 319: Smith r. Holzhauer. 67 N. J. L. 202. See also Solon r. Williams- burgh Bank, 114 N. Y. 122. 136. ALTERATION : SURVIVAL OF DEBT. 869 is not in theory dependent on the evidence by which it is proved. If, therefore, in such a case the obligee is held to lose all rights, even though it would be possible to prove the obligation by legal evidence, it is because the policy requiring that the purity of written evidence shall be maintained demands the imposition of a severe penalty on those who tamper with such evidence. ^^ Recovery on original debt allowed in this country where alteration not fraudulent. In most of the cases upon the point the altered writing Avas a bill of exchange or promissory note, and it has been held in England that as between the original parties the alteration does not extinguish the liability on account of which the instrument was given.'^^ In this country the distinction has been taken between an alteration made fraudulently and an alteration not made fraudulently. In the latter case, as has been seen, the alteration in many jurisdic- tions will not bar recovery on the instrument itself ;^^ but where such recovery is barred, relief is granted by allowing recovery on the original debt or consideration for which the instrument was given. ^ 97 Whether the rule against alteration is wider in its effect than a rule of evidence, forbidding the use of writings materially and wrongfully altered, is well illustrated by the case of a contract executed in duplicate, ©ne part of which is thereafter fraudulently and materially altered. If the require- ment of the law is merely that the altered writing shall not be given in evi- dence, the fraudulent party may still prove his right by the unaltered part, for each part is an original. 1 Greenl. Ev. (16th ed. ), § 5G3. But if the fact that he has fraudulently altered a writing which embodies the contract is, as matter of substantive law, a defense there can be no recovery. The former view is supported by two decisions in regard to duplicate leases. Lewis r. Payn, 8 Cow. 71 ; Jones v. Hoard, .59 Ark. 42. Since a lease is primarily a conveyance, these cases may perhaps be distinguished from the case supposed. Certainly the conclusion, if applied to executory contracts, cannot be regarded as free from doubt. An affirmative plea alleging altera- tion of the contract would, it seems, set up a good defense and would be supported bv proof of the facts. Chitty, Pleading (16th Am. ed. ), 299; infra, p. 872. 98 Atkinson v. Hawdon, 2 A. & E. 628; Sloman r. Cox, 1 C, M. (t R. 471. See also Hall r. Fuller, 5 B. & C. 7oO. But there could be no recovery against a party secondarily liable on the instrument, for the consideration received by him, since the alteration hag deprived him of any right to recover over against prior parties to the instru- ment. Alderson v. Langdale, 3 B. & Ad. 663. 99 See supra, p. 853. 1 Little r. Fowler, 1 Root. 04; Warren v. Lavton, 3 Harring. (Del.) 404; Vogle i\ Ripper. 34 111. 100; Elliott r. Blair, 47 111. 342; Haves v. Wagner, 89^111. 390: Wallace v. Wallace. 8 111. App. 69; First Bank v. Ryan, 31 IlL App. 271. 38 111. App. 268: affd.. 148 111. 349; Hampton r. Mayes, 3 Ind. Ty. 0.5 ; Krause r. Meyer, 32 la. 566 ; Morrison r. Huggins, 53 la. 76 ; Eckert r." Pickel, 59 la. 54.5; Maguire v. Eichmeier. 109 la" 301. 304; Hervev >\ Hervey. 15 Me. 357: Morrison r. Weltv, IS Md. 169; Owen v. Hall, 70 '^ifd. 97: State Bank v. Shaffer, 9 Neb. 1 : Lewis v. Schenck. 18 X. J. Eq. 459; Hunt r. Gray, 35 X. J. L. 227: :\Ierrick r. Bourv. 4 Ohio St. 60; Savasre r. Savaee, 36 Oreg. 268; Keene r. Weeks. 19 R. I. 309; WA'ckoff r. JohnsonT 2 S. D. 91: Otto V. Halff. 89 Tex. 384: Matteson v. Ellsworth, 33 Wis. 488. See also 870 DISCHARGE OF CONTRACTS. Where the instrument was given in conditional payment of an antecedent debt, there is no difficulty in reaching this result. The instrument has not been paid at maturity, and the old debt there- fore still exists. But the same result would probably be reached in this country, though no debt had ever existed before the trans- action of which the delivery of the instrument was a part, though a recovery of the consideration or its value must in such a case be supported on principles of quasi-contract. If a material alteration is made fraudulently, however, no recovery can be had in any form of action either on the instrument or the original debt or considera- tion.2 Application of doctrine to mortgages. The application of these prin- ciples seems clear in the case of alteration of a mortgage note or bond. If the effect of the alteration is to discharge not simply the note or bond, but the debt itself, the mortgage, being an incident of the debt, must also fall.^ If, however, the alteration was not due to fraud of the holder, the debt is not discharged, whether the altered obligation is or not; and if the debt is not discharged the mortgage wall survive.^ If a mortgage is given to secure several sepa- rate obligations, such an alteration of one of them as avoids the debt represented thereby, avoids also the lien of the mortgage as to that obligation, but not as to the other obligations.^ Craig- V. Lowe, 36 Ga. 117. Contra are White r. Hass, 32 Ala. 430; Toomer V. Rutland, 57 Ala. 379. As the note, though void because of alteration, may be injurious to fehe defendant if it remains outstanding, the plaintiff is required to surrender the note in order to recover on the consideration. Morrison r. Welt}', 18 Md. 169; Smith V. Mace, 44 N. H. 553, 5G0; Booth v. Powers, 56 N. Y. 22, 31. Cp. Eckert V. Pickel, 59 la. 545. 2 Elliott V. Blair, 47 111. 342; Ballard r. Franklin Ins. Co., 81 Ind. 239; Woodworth v. Anderson, 63 la. 503 ; Hocknell r. Sheley, 66 Kan. 357 ; Warder, etc., Co. v. Willyard, 46 IMinn. 531 ; Walton Plow Co. v. Campbell, 35 Neb. 173; Martendale v. Follett, 1 X. H. 95; Smith v. Mace, 44 N. H. 553; Clute r. Small, 17 Wend. 238; Kennedy v. Crandell, 3 Lans. 1; Meyer r. Huneke, 55 N. Y. 412; Booth v. Powers, 56 N. Y. 22. Otherwise in South Carolina. See the following note. 3 Vogle V. Ripper, 34 111. 100; Elliott r. Blair, 47 111. 342; Tate r. Fletcher, 77 Ind. 102; Bowman v. Mitchell, 79 Ind. 84; Hocknell v. Sheley, 66 Kan. 357 ; Walton Plow Co. v. Campbell. 35 Neb. 173. In South Carolina, even a fraudulent alteration by the holder of the note or bond will not dischars^e the mortgage. Plvler r. Elliott. 19 S. C. 264; Smith V. Smith, 27 S. C. 166; Heath r. Blake, '28 S. C. 406. See also Bailey r. Oilman Bank, 99 Mo. App. 571, 578. 4 Elliott V. Blair, 47 111. 342; Clou^h r. Senv. 49 la. 411 : Simpson r. Sheley, 9 Kan. App. 512; Jeffrev V. Rosenfeld. 179':\Iass. 506; Hoffman r. Molloy, 91 :\ro. App. 367; Bnilev r. Oilman Bank. 99 Mo. App. 571; Gillette r. Smith. IS Hun, 10: Cheek r. Nail. 112 N. C. 370. 5 Parke Co. v. White River Lumber Co., 110 Cal. 658: Hoffman r. :\IolIoy, 91 Mo. App. 367. ALTERATION : BEFORE EXECUTION. 871 Though an obligor whose obligation has been materially and fraudu- lently altered may thus keep the consideration which he has received without giving any equivalent for it, he would not be allowed to enforce an executory obligation, given in exchange for the altered obligation, while repudiating his own obligation on account of the alteration. He must either perform his obligation as if it had not been altered, or rescind both obligations.^ Alteration of a "Writing before Execution. Alteration before contract becomes binding is fatal. To speak of altera- tion as a method of discharging contracts necessarily assumes a con- tract at one time binding, and subsequently altered. In some cases, however, a writing is altered before it has by delivery or assent be- >come a binding contract. This most commonly happens where a surety or joint obligor signs an obligation and entrusts it to the principal debtor or co-obligor, who alters it before delivering it to the creditor, but the same question may arise in any case where a ■WTiting is entrusted to an agent to deliver and is altered before delivery. It seems clear on principle that, however innocent the obligee may be or however innocently the alteration may have been made, so long as it is material, the obligor cannot be held.''' He cannot be held on the obligation in its altered form, because he never made or assented to such an obligation. He cannot be held on the obligation in its original form, because that obligation was never delivered nor assented to by the creditor. A court may on equitable principles enforce an obligation, once valid, though tech- nically destroyed or discharged, but it can hardly construct and en- force an obligation which never existed on the ground that the de- fendant was once willing to enter into such an obligation and would have done so if the writing had not been altered.^ 6 Singleton v. McQuerry, 85 Ky. 41. TElIesmere Brewerv Co. v. Cooper, [1896] 1 Q. B. 75; Wood r. Steele, 6 Wall. SO; State v. Churchill, 48 Ark. 420; People r. Kneeland, 31 Cal. 288; Pelton V. San Jacinto Co., 113 Cal. 21; Hill r. O'Neill, 101 Ga. 832; Mulkey V. Long, 5 Idaho, 213; Weir Plow Co. v. Walmsley, 110 Ind. 242; State v. Craig, "58 la. 238; Warren v. Fant, 79 Ky. 1; Waterman v. Vose, 43 Me. 504; Howe v. Peabody, 2 Gray, 550; Citizens' Bank v. Richmond, 121 Mass. 110; Britton r. Dierker, 46 Mo. 591; Robinson v. Berryman, 22 Mo. App. 509; Mockler v. St. Vincent's Inst., 87 Mo. App. 473; McGavock v. Morton, 57 Xeb. 385; Goodman r. Eastman, 4 N. H. 455; McGrath v. Clark, 50 N. Y. 34; Crawford i\ West Side Bank, 100 X. Y. 50, 57; Cheek v. Nail, 112 ISr. C. 370; Jones r. Bangs, 40 Ohio St. 139: Newman v. King, 54 Ohio St. 273. See also Bracken Co. v. Daum, 80 Ky. 388: Sharpe v. Bellis. 61 Pa. 69. 8 This, however, was done in Latshaw v. Hiltebeitel, 2 Penny. 257. 8T2 DISCHARGE OF CONTRACTS. Qualification of the rule. This principle is, however, subject to a qualiiication. If the writing was entrusted to one with actual or apparent authority to make the alteration in question, the obligor will be bound by the instrument in its altered form, and the courts have gone very far in inferring such authority. Thus where a note is entrusted by a signer to one who is to borrow money upon it, and the latter without authority procures additional signatures to the note,^ or an attesting witness,^*^ the original signer is liable. So where a note signed in blank for accommodation and entrusted to the accommodated party is filled out by him, and later before de- livery altered,^^ and where a note entrusted to the accommodated party in a complete form was wrongly drawn and was altered be- fore delivery so that it should conform to the intention of the par- ties;^^ and even where names of obligors previously on the note have been erased and others substituted, the same result has been reached.^" Pleading and Evidence. Pleading. The pleading appropriate to enable a defendant to take advantage of alteration depends on whether the plaintiff bases his action on the obligation in its original or in its altered form. In the latter case the defendant should deny the making of the contract alleged by plea of non est factum or non assumpsit or modem equiva- lents.^'* In the former case the defendant may plead affirmatively OHochmark v. Richler, 16 Col. 203; Governor v. Lagow, 43 111. 134; Geddes v. Blackmore, 132 Ind. 551: Hall's Adnir. r. McHenry, 19 la. 521; Graham r. Rush, 73 la. 451; Edwards r. Mattinglv, 107 Ky. 332; Brev v. Hagan, 110 Ky. 566; Evans i: Partin, 22 Ky. L. Rep.'20, 21; Ward v. Hackett, 30 Minn. 150; Babcock r. Murray, 58 Minn. 385; Standard Cable Co. r. Stone, 35 N. Y. App. Div. 62. But see contra, Lunt v. Silver, 5 Mo. App. 186, and cp. Ellesmere Co. i: Cooper, [1890] 1 Q. B. 75. 10 Hall r. Weaver. 34 Fed. Rep. 110. 11 Whitmore v. Xickerson, 125 Mass. 496; Douglass V. Scott, 8 Leigh, 43. But if the blanks are filled in and the note negotiated, the accommodated party cannot on subsequently recovering the note change its ternis. Ofenstein v. Brvan, 20 App. D. C. 1. 12 Bovd r. Brotherson, 10 Wend. 93. 13 .Jones V. Shelbyville Ins. Co., 1 Met. (Ky.) 58; Hall r. Smith, 14 Bush, 604, 612; King Co. v. Ferry, 5 Wash. 530. It is submitted that this result is wrong. Even though the alteration is not apparent, there can be no ground of estoppel unless the original signer was guilty of negligence. These de- cisions seem opposed to State ?;. Churchill, 48 Ark. 426; State v. Griswold. 32 Ind. 313. See also State v. Craig, 58 la. 238. 14 Cook V. Coxwell, 2 C. M. & R. 291: ilahaiwe Bank r. Douglass, 31 Conn. 170: J. I. Case Co. r. Peterson. 51 Kan. 713: Daniel v. Daniel, Dud. (Ga.) 239; Conner v. Sharpe. 27 Ind. 41; Lincoln r. Lincoln. 12 Grav, 45; Cape Ann. Bank r. Burns, 129 Miiss. 590; Whitmer r. Frye, 10 Mo". 34S ; Xat. Bank r. Xickell. 34 Mo. App. 295: Schwarz r. Oppold, 74 N. Y. 307; Farmers' Trust Co. v. Siefke, 144 N. Y. 354; Zeigler v. Sprenkle, 7 Watts & S. 175. ALTERATION : RULE OF EVIDENCE. 873 that the obligation has been altered/^ but in this country he would also generally succeed by denying the making of the obligation, for the burden would then be on the plaintifl: to prove this and on the defendant's objection to the original writing because fraudulently altered and to secondary evidence because the non-production of the original was not satisfactorily accounted for, the plaintiff would be unable to sustain this burden,^^ The affirmative plea is, therefore, strictly necessary only in cases in which the rule of substantive law applicable is more stringent than the rule of evidence, as in juris- dictions where an innocent material alteration is held fatal. Evidence. There are many decisions in regard to the admissibil- ity of altered writings in evidence, and presumptions have been laid down as rules of law in a way to confuse the subject. Many courts hold that when a writing offered in evidence shows on its face an alteration, there is a presumption that the alteration was improperly made after the execution of the writing, and that, therefore, a burden is cast upon the party offering the writing to explain the alteration before the writing can be received in evidence. ^'^ Other courts hold that in the absence of suspicious circumstances there is exactly the opposite presumption, namely, that the alteration was made innocently and legally. ^^ Nor is it always clear whether in 15 Field V. Woods, 7 A. & E. 114: Davidson r. Cooper, 11 M. & W. 778; Croockewit i;. Fletcher, 1 H. & N. 893. 36 First Nat. Bank v. Mack, 35 Oreg. 122, 127 ; Kansas Mut. Ins. Co. v. Coalson, 22 Tex. Civ. App. 64. 17 Brady v. Berwind-VVhite Co., 106 Fed. Rep. 824; Warren v. Layton, 3 Harring. (Del.) 404; Mulkey v. Long, 5 Idaho, 213; Mortag r. Linn, 23 111. 551; Landt v. McCiillough, 206 111. 214; Dewey r. Merritt, 106 111. App. 156; Rambousek r. Supreme Council, 119 la. 263; McMicken v. Beauchamp, 2 La. 290; Ellison r. Mobile, etc., R. Co., 36 Miss. 572 (cp. Jackson v. Day, 80 Miss. 800) ; Patterson v. Fagan, 38 Mo. 70 (but see Trimble v. Elkin, 88 Mo. App. 229, 234) ; Burton v. American Ins. Co., 96 Mo. App. 204; Cour- carap V. Weber, 39 Neb. 533; Hills v. Barnes, 11 N. H. 395; Burnham r. Ayer, 35 N. H. 351; Ames v. Manhattan Ins. Co., 31 N. Y. App. Div. 180, 185; affd., 167 N. Y. 584; Simpkins c Windsor, 21 Oreg. 382; First Bank V. Mack, 35 Oreg. 122; Clark v. Eckstein, 22 Pa. 507: Jordan v. Stewart, 23 Pa. 244; BurgAvin v. Bishop, 91 Pa. 336; Park V. Glover, 23 Tex. 469: Col- lins r. Ball, 82 Tex. 259, 268; Bullock r. Sprowls, 54 S. W. Rep. 657 (Tex. Civ. App.) ; Elgin r. Hall, 82 Va. 680; Bradley r. Dells Lumber Co., 105 Wis. 245. 18 Doe V. Catomore, 16 Q. B. 745; Little V. Herndon, 10 Wall. 26; Ward V. Cheney, 117 Ala. 241; Corcoran r. Doll, 32 Cal. 82; Kendrick i'. Latham, 25 Fla. 819; Printup r. Mitchell, 17 Ga. 558; Bedgood r. McLain, 80 Ga. 793 ; Westmoreland /•. Westmoreland, 92 Ga. 233 ; Dangel r\ Levy, 1 Idaho, 722; Stoner r. Ellis. 6 Ind. 152: Sirrine r. Briggs, 31 Mich. 443; Brand /-. Johnrowe, 60 Mich. 210; Wilson r. Haves, 40 Minn. 531; IMatthews v. Coalter. 9 Mo. 696; Stillwell V. Patton, 108 Mo. 352; Adams r. Yntes. 143 Jlo. 475, 481; Holladay-Klotz Co. v. T. J. Moss Co., 89 Mo. App. 556; Paul v. Leeper, g74 DISCHAKGE OF CONTRACTS. speaking of presumptions of one sort or another the courts mean that in the absence of any evidence showing innocence or fraud these presumptions apply, or further that there is a burden upon the party who has not the advantage of a presumption of making out his contention by a preponderance of evidence, irrespective of the pleadings. Tendency of best modern decisions. The tendency of the best modem decisions is to disregard these rules of presumption and to treat each case upon its own facts so far as the duty of adducing further evi- dence is concerned, and to throw the burden of ultimate proof upon whichever party has the burden of establishing the issue raised by the pleadings.^^ Merger. By judgment or bond. Where an obligation arising under a contract is reduced to judgment^^ or where an obligation arising under a simple contract is put in the form of a specialty^^ the original obliga- 98 Mo. App. 515; Dorsey i\ Conrad, 49 Neb. ;>43; Hodge v. Scott, 95 N. W. Eep. 837 (Neb.) ; North River Co. v. Shrewsbury Church, 22 N. J. L. 424; Cass County v. American Bank, 9 N. Dak. 253; Franklin v. Baker, 48 Ohio St. 29G; Richardson v. Fellner, 9 Okl. 513; Foley Co. v. Solomon, 9 S. Uak. 511; Farnsworth v. Sharp, 4 Sneed, 55 (cp. Organ v. Allison, 9 Baxt. 459 ) ; Beaman v. Russell, 20 Vt. 205 ; Wolferman r. Bell, 6 Wash. 84 ; Yakima Bank c. Knipe, 6 \\^.sh. 348; Kleeb r. Bard, 12 Wash. 140; Maldaner v. Smith. 102 Wis. 30. See also Barclift r. Treece, 77 Ala. 528; Hart r. Sharp- ton. 124 Ala. 038; Gwin v. Anderson, 91 Ga. 827; Galloway v. Bartholomew, 74 Pac. Rep. 467 (Oreg.). In Blewett r. Bash, 22 Wash. 536, this presumption was held not applicable to the erasure of a signature as that must necessarily have been done after execution. See also Burton v. American Ins. Co., 88 Mo. App. 392. 19 Rosenberg v. Jett, 72 Fed. Rep. 90; Harper r. Reaves, 132 Ala. 625; Klein r. German Bank, 69 Ark. 140; Hayden r. Goodnow, 39 Conn. 164; Baxter r. Camp, 71 Conn. 245; Catlin Coal Co. r. Lloyd, 180 111. 398; Stay- ner v. Joyce, 120 Ind. 99; Hagan r. Insurance Co., 81 la. 321; Magee v. Allison. 94 la. 527; University v. Hayes, 114 la. 690; Ely r. Ely, Gray, 439; Comstock r. Smith. 26 Mich. 306 ; 'Stough v. Ogden. 49 Neb. 291; Cole v. Hills. 44 N. H. 227; Hunt r. Gray, 35 N. J. L. 227; Hoey v. .Jarman, 39 N. J. L. 523; Riley r. Riley, 9 N.Dak. 580; Robinson r. Myers, 67 Pa. 9; Nesbit r. Turner, ' 155 Pa." 429; Cosgrove v. Fanebust, 10 S. Dak. 213; Conner v. Fleshman. 4 Va. 693. 20 See oases in following notes. 21 " If a man contract to pay money for a thing which he hath bought, if he take a bond for the money, the contract is discharged, and he shall not have an action of debt upon the contract." Fitz. Nat. Brev. 120, n. " If a man be indebted to me by contract, and afterward makes me a bond for the same debt, the contract is hereby determined, for in debt on the contract it is a good plea that he has a bond for the same debt. But if a stranifer makes an obligation to me for the same debt, the contract still re- MKRGICR. 875 lion is by operation of law extinguished and merged in the new obligation. Judgment on other causes than bonds. That a judgment and satis- faction of the judgment merged and extinguished any personal cause of action other than a formal obligation was undoubtedly recognized from very early times. That a judgment without satisfaction had the same effect upon a simple contract debt leaving the creditor to his remedy on the judg- ment exclusively seemed clear in the minds of the judges at least by 14G9,^^ though whether the principle extended to personal actions generally seems to have been somewhat doubted.^^ Judgment on a bond. The case of a bond gave more trouble. As the bond itself was regarded as constituting the obligation, so long as that bond existed the obligation necessarily existed. Accordingly when judgment was given in an action on a bond the bond was ^' damned.'"' ^^ But if the defendant did not procure the bond to be damned he was liable to be sued again thereon.^^ In Higgens's •case,^'^ however, Coke held not only that " there is not any question but judgment and execution upon a bond is a good bar in a new action thereon," but that even though no execution had issued, so long as the judgment remained in force there could be no new action on mains, because it is by another person, and both are now debtors." Bro. Ab. tit. Contract, pi. 29. So Hooper's Case, 2 Lev. 110; Oldfield's Case, Noy, 140; Davis v. Curtis, Ch. Cas. 220; Twopenny v. Young, 3 B. & C. 210; U. S. r. Lyman, 1 Mason, 482; Howell r. Webb, 2 Ark. 3G0 ; Chambers r. McDowell, 4 Ga. 18.5, 189; Rhoads r. Jones, 92 Ind. 328; Kennion r. Kelsey, 10 la. 443; Davidson v. Kelly, 1 Md. 492, 500; Atty.-General r. Whitney, 137 Mass. 450; Van Brunt r. Misnier, 8 Minn. 232; Baker v. Baker, 28 N. J. L. 13; Renard v. Sampson, 12 N. Y. 501; McNaughten v. Partridge, 11 Ohio St. 223, 232; Share v. Ander- son, 7 S. & R. 43; Chalmers v. Turnipseed, 21 S. C. 126; Witz v. Fite, 91 Va. 446, 453. Similarly a negotiable instrument which is a mercantile specialty merges the debt on account of which it was given. Ames Cas. B. & N. II, 874. 229 Edw. IV, 50, pi. 10. " For by the recovery the nature of the duty was changed." 23 //jicZ., abridged in Bro. Ab. Judgment, pi. 47. In an action of account the defendant pleaded a previous judgTuent of account for the same matter from which an appeal was then pending, and it was doubted, if execution was not t'^ken out whetlier the jilaintifT could have a new action. " Littleton and Clioke, justices, it is a good plea that he has previously recovered. Contrary, Danby and Moyle, justices, tor if execution was not taken out he can have a new action and if the plaintiff sued out execution on both, the defendant :shall have audita querela." 24 7. c, canceled. See e. p., 9 Edw. IV. 50, 51, pi. 10. 25 See the early case stated in Iliggons's Case, 6 Co. 44?>, 45b. 26 6 Co. 44&, 4Ga. 8TG DISCHAEGE OF CONTRACTS. tlie bond. Tlio general application of this principle to all kinds of contracts lias not since been doubted. ^'^ Distinction between merger and res judicata. Merger of contract righti* in judgment is based not simply on the principles applicable to merger generally, namely that a larger and more important obligation or estate, which fully expresses or includes a lower form of obligation or estate, as it renders the latter unnecessary, extinguishes it, but on the broader principle, necessary to prevent vexation of litigants and courts with repeated trials of the same dispute, the matters which have once passed into judgment are, as between parties to the litiga- tion or their successors, conclusively settled by the decision of the court. The doctrines of res judicata include more than can be properly brought under the heading of merger, since they debar parties from calling in question in any litigation any matter actually decided in the earlier litigation,^® but all tlie essential consequences of the merger of the plaintiff's right in a judgment are also necessary consequences of the principles of res judicata. Requisites for merger. In order to effect a merger of a lower obliga- tion into a higher, the obligations must be between the same parties^* 27 Connecticut Ins. Co. r. Jones, 8 Fed. Eep. 303; Ries v. Rowland. 11 Fed. Rep. 657; Schuler r. Israel, 27 Fed. Rep. 851. 120 U. S. 500: Runnamaker V. Cordray, 54 111. 303; Peoria Savings Co. v. Elder, 165 111. 55; Wilson v. Buell, 117 Ind. 315; North v. Mudge, 13 la. 40G; Harford v. .Street, 46 la. 594; Scott v. Sanders' Heirs, 6 J. J. Marsh, 500; Campbell f. Mayhugh, 15 B. Mon. 142; West Feliciana R. Co. r. Thornton, 12 La. Ann. 736; Sweet v. Brackley, 53 Me. 346; Alie V. Nadeau, 93 Me. 282; Bank of United States V. Merchants' Bank, 7 Gill, 415; Schafennan ••. O'Brien, 28 Md. 505; Standifcr V. Bush, 16 Miss. 333; Cooksey i\ Kansas City, etc., R. Co., 74 Mo. 477; Tour- ville i: Wabash R. Co., 148 Mo. 614; Grant' ?-. Burg\Ayn, 88 N. C. 95; Ellis V. Staples, 9 Humph. 238; Saunders v. Griggs' Admr., 81 Va. 506. Cp. Boynton v. Ball, 121 U. S. 022; Bacon v. Reich, 121 Mich. 480. See as to a decree in equity, Laur v. People, 17 111. App. 448; Mever r. Merer, 40 111. App. 94; Foster r. The Richard Busteed, 100 Mass. 409; Mutual 'ins. Co. v. Newton, 50 N. J. L. 571. 28 Thus a judgment in an action on part of a continuing contract not only merges that right of action but may have the effect of conclusively fixing a construction of the contract for all future disputes. 29 White V. Cuyler, 6 T. R. 176; Holmes r. Bell, 3 Man. & G. 213; Bell r. Banks, 3 Man. & G. 258; Ansell v. Baker, 15 Q. B. 20; Boaler r. ISIavor. 19 C. B. N. S. 76; Mowatt r. Londesborough, 4 E. & B. 1; Aspden v. Nixon, 4 How. 467; Chase v. Swain, 9 Cal. 130; Cook v. Morris, 66 Conn. 137; Harvey r. State, 94 Ind. 159; Gilbert r. Tliompson, 9 Cush. 348; Gage v. Ames," 26 Minn. 64; Richardson v. Richards, 36 Minn. Ill; McGill v. Wallace, 22 Mo. App. 675; Gardner v. Raisbeck, 28 N. J. Eq. 71; Rodman v. Devlin, 23 Hun. 590; Rhoads r. Armstrong County, 41 Pa. 92. Thus an action in rem against a vessel does not merge a subsequent action on the same contract against the owners of the vessel. Tobv r. Brown, 11 Ark. 308. See also Tabor v. The Cerro Gordo, 54 Fed. Rep'. 391. ARBITRATION A>rD AWARD. 877 and upon the samo debt.^*^ Moreover a foreign judgment, while it will bind the parties by its determination, will not have the technical effect of merging the original cause of action.^^ A domestic action may be brought and the foreign judgment will then be conclusive evi- dence as to the rights of the parties, if the foreign court had full jurisdiction of the parties and the subject-matter of the dispute.^^ A judgment of a court of one of the United States is not, however, treated as a foreign judgment for the purposes of this rule. Such a judgment merges the cause of action. ^^ Arbitration and Award. General principle. If a claim arising from contract is by agreement of the parties submitted to arbitration and an award is made by the arbitrators, although the award has not been performed, this is con- clusive upon the parties. If the award merely fixes the amount due upon the original cause of action, the plaintiff may still sue upon that cause of action^^ (though he may also sue upon the award or agree- ment of arbitration), but the defendant may set up the award as a bar to any recovery in excess of the amount awarded.^ If, however, the 30 Xorfolk Ry. v. McXamara, 3 Ex. 628; Snyder's Admr. r. McComb's Exr., 39 Fed. Rep. 2*92; Chapman r. Brainard, 2 Root, 375; Illinois Central R. Co. r. Schwartz, 13 111. App. 490; Willson v. Binford, 81 Ind. 588; Tracy v. Kerr, 47 Kan. G5(5 ; Brou r. Becnel, 22 La. Ann. 610; Lehan r. Good, 8 Cush. 302; Harding v. Hale, 2 Gray, 399; Parr V. Greenbush, 112 N. Y. 246; Vinal r. Continental Co., 53 Hun, 247 ; Raven r. Smitli, 87 Hun, 90 ; Knott v. Stephens, 5 Oreg. 235; Kaster r. Welsli, 157 Pa. 590. 31 Hall r. Odber, 11 East, 118; Smith v. Nicolls, 5 Bing. N. C. 208; Bank of Australasia v. Nias, 16 Q. B. 717; Bank of Australasia r. Harding, 9 C. B. G61 ; Lyman r. Brown, 2 Ciirt. 559; Xew York, etc., R. Co. v. ^IcHenry, 17 Fed. Rep* 414; Wood v. Gamble, 11 Cush. 8; Hays v. Cage, 2 Tex. 501; Frazier r. Moore's Admr., 11 Tex. 755; Eastern To\\Tiship Bank t\ Beebe, 53 Vt. 177. Contra, Jones i\ Jamison, 15 La. Ann. 35 (statutory). If the foreitcn judyiiient has been paid, liowever, the cause of action is fully satisfied. Barber v. Lamb, 8 C. B. N. S. 95. 32Ricardo v. Garcias, 12 CI. & F. 308; Nouvion r. Freeman, 15 A. C. 1 ; Eastern Township Bank r. Beebe, 53 Vt. 177. 33 Union Pacific Ry. Co. r. Baker, 5 Kan. App. 253 ; North Bank r. Brown, 50 Me. 214; Bank of" United States i: Merchants' Bank, 7 Gill, 415; Harring- ton V. Harrington, 154 ^Mass. 517; Graef c. Bernard, 162 Mass. 300; Stearns V. Wiborg, 123 ]Mich. 584, 588; Child v. Eureka Powder Works, 45 N. H. 547: Barnes r. Gibbs, 31 N. J. L. 317; Traflet v. Empire Life Ins. Co., 64 N. J. L. 387 ; Grav v. Richmond Bicvcle Co., 167 N. Y. 348 ; Baxley r. Linah, IG Pa. 241 ; Paine i: Sclienectadv Ins. Co., 11 R. I. 411; McGilvrav r. Avery, 30 Vt. 538; Green r. Starr, 52 Vt. 426. See also Hatch r. Spofford, 22 Conn. 485. 500. 34 Allen ?•. Milner. 2 C. & .J. 47: Whitehead v. Tatter«:ill. 1 A. & E. 491; Keeler r. Harding, 23 Ark. 697: Howell r. :\ronical, 25 111. 122. 35 Freeman r. Bernard. 1 Ld. Raym. 247; Bates r. Townley, 2 Ex. 152. 157; Commines r. Heard, L. R. 4 (}. B. 669. See also Sanborn r.Maxwell, 18 App. D. C. 245. 878 DISCHARGE OF CONTRACTS. award substitutes a new debt or duty for the original cause of action, the plaintiff's remedy is exclusively upon the award or agreement for arbitration.^ Exceptions at common law. The common law made an exception to this rule if the original cause of action was for a debt upon a bond,*^'^ or a record.^ The dignity of the bond or record was regarded as such that it could not be merged by an award. But if the bond obliged the parties to any performance other than the payment of money, arbitration and award was conclusive as to the amount of damages recoverable for breach of the bond.^^ This nicety which also obtained in the doctrines of accord and satisfaction^^ is probably obsolete everywhere, and doubtless arbitration and award upon a sealed contract is subject to the same rules as upon rights growing out of simple contracts. ^^ Authority to arbitrate revocable before award. Until the award is made, the original claim still exists, and the agreement to arbitrate^ like an unexecuted accord, is no bar to an action upon the claim. '- Moreover, a revocation by either party to the arbitration of the authority given by him to the arbitrators will invalidate any award made thereafter.*^ The only redress for breach of an agreement to refer is an action for damages.** A court of law will not enforce the 36 Allen V. Harris, Ld. Raym. 122; Gascoyne v. Edwards, 1 Y. & J. 10; Parkes v. Smith, 15 Q. B. 297; Gardner v. Newman, 135 Ala. 522; Curley v. Dean, 4 Conn. 259; Merritt v. Merritt, 11 111. 565; Walters v. Hutchins! 29 Ind. 13G; Groat v. Pracht, 31 Kan. 656; Duren r. Getchell, 55 Me. 241; Knowles V. Shapleigh, 8 Cush. 333; Bentley v. Davis, 21 Xeb. 685; Varney r. Brewster, 14 N. H. 49 ; Pickering v. Pickering, 19 N. H. 389 ; Armstrong /'. Masten, 11 Johns. 189; West v. Stanlev, 1 Hill. 69. See further Mac- donald v. Bond, 195 111. 122; Weichardt v. Hook, 83 Pa. 434; Vaughn V. Herndon, 91 Tenn. 64. Cp. Matter of Lurman, 90 Hun, 303; affd., 149 N. Y. 588; Grossman V. Lurman, 33 N. Y. App. Div. 422, 57 N. Y. App. Div. 393. 3T Morris r. Creach, 1 Lev. 292; Blake's Case, 6 Co. 43&. 38 Viner's Ab., Arbitrament (s). 39 Blake's Case, 6 Co. 436; Whitehead v. Tattersall, 1 A. & E. 491. 40 See supra, p. 835. 41 See supra, p. 836, as to accord and satisfaction. 42 Wright r. Evans, 53 Ala. 103; Gaither r. Dougherty, 18 Ky. L. Rep. 709; Welch V. Miller. 70 Vt. 108. 43 Vvnior's Case, 8 Coke, 80a; Rouse v. Meier, L. R. 6 C. P. 212; Eraser i\ Ehrensperger, 12 Q. B. D. 310; Fooks v. Lawson, 40 Atl. Rep. 661 (Del.); Gregory v. Pike, 94 Me. 27 ; Boston, &c., R. Corp. v. Nashua, &c., R. Corp., 139 Mass. 463; Jones v. Harris, 59 Miss. 214; Butler v. Greene, 49 Neb. 280: Allen r. Watson, 16 Johns. 205; Sartwell r. Sowles, 72 Vt. 270. But see contra, McGeehen r. Duffield, 5 Pa. 497: ]McCune r. Lytic. 197 Pa. 404. Death of one of the parties effects a revocation of the arbitrators' authority. Cooper r. Johnson, 2 B. & Aid. 394; Gregory v. Boston Safe Deposit Co., 36 Fed. Rep. 408; Gregory i'. Pike, 94 Me, 27; Marseilles v. Kenton, 17 Pa. 245; Sutton r. Tvrrell, 10 Vt. 94. 44 Noble i). Harris, 3 Keb. 745; Warburton v. Storr, 4 B. & C. 103; Reg. v. ARBITRATION AND AWARD. 8T9 stipulation by disregarding any attempted revocation, nor will a court of equity enforce specifically the agreement.^ When writing necessary. "A submission to arbitration may be either oral, in writing or under seal, depending on the subject-matter of the arbitration. If a writing is necessary to pass title to the thing in controversy, an award, disposing of such title, to be valid must be in writing." *^ Arbitrator must follow authority. In order that an award shall be binding, the arbitrators must follow exactly the authority given them by the agreement of the parties.^^ If arbitrators exceed their au- thority the award is void to that extent, and if the part wdiich is void cannot be separated from the rest without injustice, the whole award is void.^^ On the other hand "unless an arbitrator renders his award on all matters within the submission, and of which he had notice, the award is wholly void." *^ It is also essential to the validity of an award that it be final, that is, a termination of the Hardev. 14 Q. B. 529; Brown r. Leavitt, 26 Me. 251; Call r. Hagar, 69 Me. 521; Quimby i'. Melvin, 28 N. H. 250; Dexter v. Young, 40 N. H. l.?0; Miller V. Junction Canal Co., 53 Barb. 590, 41 N. Y. 98; Craftsbury v. Hill, 28 Vt. 763; Rison i: Moon, 91 Va. 384. 45 Street r. Rigbv, 6 Ves. 815; Vickers v. Vickers, L. R. 4 Eq. 529; Tobey V. Bristol County, 3 Story, 800; Hill i: More, 40 Me. 515; Rowe v. Williams, 97 Mass. 163; St. Louis v. St. Louis Gas-ligbt Co., 70 Mo. 69; March v. Eastern R. Co., 40 N. H. 548; Hurst V. Litchfield, 39 K Y. 377; Rison v. Moon. 91 Va. 384. 46 Brown v. Mize, 119 Ala. 10, 17. Oral submission to arbitration is gen- erally good. Gardner v. Newman, 135 Ala. 522; Shaw v. State, 68 Ark. 580; Phelps V. Dolan, 75 111. 90; Dilks r. Hammond. 86 Ind. 563; Peabody v. Rice, 113 Mass. 131; Cady v. Walker, 62 Mich. 157. Otherwise in Loui^^iana by statute. McCleandon v. Kemp, 18 La. Ann. 162. Where title to land is in- volved a deed or writing is necessary. Copeland v. Wading River Co., 105 Mass. 397; French v. New, 28 N. Y. 147; Fort v. Allen, 110 N. C. 183. 47MeCormick r. Grav. 13 How. 26; De Groot r. United States, 5 Wall. 419; Reynolds V. Reynolds, 15 Ala. 398; Comer v. Thompson. 54 Ala. 265; Brown i\ Mize, 119 Ala. 10; Lee v. Onstott, 1 Ark. 206; Waller v. Shannon, 44 Conn. 480; Fountain v. Harrington, 3 Har. (Del.) 22; Denman r. Bayless, 22 111. 300; Buntain V. Curtis. 27 111. 374; Sthreshly r. Broadwell. 1 J. J. Marsh. 340; Boynton V. Frye, 33 Me. 216; Sawtells c. Howard. 104 ^Nlich. 54; Gibson v. Powell, 13 Miss* 712; Adams r. Adams. 8 N. H. 82; Hiscock V. Harris. 74 N. Y. 108: McCracken r. Clarke, 31 Pa. 498; Toomey v. Nichols, 6 Heisk. 159. Cp. O'Neill r. Clark, 57 Neb. 760. 48 Falkingham r. Victorian Ry. Commissioners. 11900] A. C. 452; Reynolds V. Reynolds. 15 Ala. 398; Brown v. Mize. 119 Ala. 10: Boynton v. Frye, 33 Me. 216: Orcutt v. Butler, 42 Me. 83; Shillings r. Coolidge, 14 Mass. 43: Gibson v. Powell, 13 Miss. 712; Yeaton r. Brown, 52 N. H. 14; Cox r. Jagger, 2 Cow. 635; Scott r. Barnes, 7 Pa. 134. 40Carnochan v. Christie. 11 Wheat. 446; Porter r. Scott. 7 Cal. 312: Buntain r. Curtis, 27 111. 374. 379; Stearns r. Cope, 109 111. 340; Stoere r. Brownell. 113 111. 415: McGreiror, &c.. R. Co. v. Sioux City, &c., R. Co.. 49 la. 604; McNear r. Bailey. IS Me. 251; Rollins r. Townsend. 118 ^Nlass. 224; Harker v. Hough, 2 Hals't. 428; Jones u. Welwood, 71 N. Y. 208; Young v. 880 DISCHARGE OF CONTRACTS. question under arbitration.^'^ Further, the award must be certain, so that no reasonable question can be made as to its meaning.'^^ Statutory arbitration. In England and most of the United States a form of arbitration under the direction of the courts is provided for by statute. The reference is made by order of court and the award is returned into court and becomes the basis of a judgment. Such statutes do not supersede arbitration at common law, but give an alternative and generally more desirable mode of procedure. Kinney, 48 Vt. 22; Bean v. Bean, 25 W. Va. 604; Blakeston v. Wilson, 14 Manitoba, 271. soBaillie v. Edinburgh Oil Gas-light Co., 3 CI. & F. 639; The Nineveh, 1 Low. 400; Comer v. Thompson. 54 Ala. 265; Manuel v. Campbell, 3 Ark. 324; Colcord V. Fletcher, 50 Me. 398 ; Carter v. Calvert, 4 Md. Ch. 199 ; Paine v. Paine, 15 Gray, 299 ; Smith v. Holcomb, 99 Mass. 552 ; Hoit v. Berger- Crittenden Co.,' 81 Minn. 356; Rhodes v. Hardy. 53 Miss. 587; Spofford v. Spofford, 10 N. H. 254; Parker v. Dorsev, 68 N. H. 181; McKeen r. Olyphant, 18 X. J. L. 442; Waite V. Barry. 12 Wend. 377: In re Williams. 4* Denio, 194: Herbst r. Hagenaers, 137 N. Y. 290. affg. 62 Hun. 568; Spalding v. Irish, 4 S. & R. 322; Connor v. Simpson, 104 Pa. 440; Conger v. James, 2 Swan. 213; Hooker v. Williamson. 60 Tex. 524. 51 Alexander v. McXear, 28 Fed. Rep. 403; Evans v. Sheldon, 69 Ga. 100; Stanford v. Treadwell, 69 Ga. 725; Ingraham r. Whitmore, 75 111. 24; Alfred V. Kankakfe, &c., R. Co., 92 111. 609; Hollingsworth v. Pickering, 24 Ind. 435; Woodward v. Atwater, 3 la. 61; Crawford iK Berrv. 11 Gill & J. 310; Calvert v. Carter, 6 Md. 135; Fletcher v. Webster, 5 Allen, 566; Mather r. Dav, 106 Mich. 371; Hoit v. Berger-Crittenden Co.. 81 Minn. 356; Parker v. Dorsey, 68 N. H. 181; Hoffman r. Hoflfman, 2 Dutch. 175; Jackson v. De Long, 9 Johns. 43; Hicks v. Magoun. 167 N. Y. 540; Carson i\ Carter, 64 N. C. 332; Barnet r. Gilson, 3 S. & R. 340; Gratz r. Gratz, 4 Rawle, 411; Stanley v. Southwood, 45 Pa. 189; Harris r. Social Mfg. Co., 9 R. I. 99. TEUMIKOLOGY AND FUNDAMENTAL CONCEPTIONS. 881 ^APPENDIX. [679 Note A. Terminology and fiinda- Note G. Occupations, dealings, mental conceptions of contract, 881 &c., regulated or restrained by Note B. Authorities on contract statute, 909 by correspondence, 882 Note H. Bracton on fundamental Note C. History of the equitable error, 913 doctrine of separate estate, 886 Note I. Mistake in wills, 914 Note D. Authorities on limits of Note K. On the supposed equi- corporate powers, 896 table doctrine of " making rep- Note E. Classification of con- resentations good," 915 tracts in Roman and Medieval Note L. French law on " in- Law, 902 officious " gifts and captation, 922 Note F. Early authorities on as- signments of choses in action, 906 Note A. Terminology and Fundamental Conceptions of Contract. In the first two editions I made use of Savigny's definition of Vertrag (which can only be translated by Agreement, but in a wider sense than is known to any English writer). It now seems to me out of place in a special treatise on Contract. In the third volume of his System Savigny deals in the most general way with the events capable of producing changes in rights and duties in the field of private law. Such events he calls juristische Thatsaclien; an expres- sion to which our own accustomed " acts in the law " seems well fitted to correspond. (Acts in the law must be carefully distinguished from acts of the law, which are really neither acts nor events, but legal consequences of events. But the terms are not common enough for any serious risk of confusion to arise.) To speak, as some writers do, of " juridical facts," is to use language which is so far from being English that it becomes intelligible only by a mental re-transla- tion into German. Greater nicety might be obtained, if desired, by coining the term " event in the law " for juristische Thatsache in its widest sense, and reserving " act in the law " for the species which Savigny proceeds to mark ofiP from the genus, namely, freie HandJung, or better, perhaps, for the further specified kind of voluntary acts which manifest an intention to bring about particular legal conse- quences. Such an act is called by Savigny }Yillenserl-laning. Spccif}^- ing yet more, we distinguish the acts in which the will of only one ])arty is expressed from those in which the wills of two or more concur. This last species gives the conception of Vertrag. Savigny defines it as the concurrence of two or more persons in the expression of a common intention, whereby mutual rights and duties of those persons are determined. " Vertrag ist die Vereinigung Mehrerer zu einer .iibereinstimmenden Willenserkliirung, wodurch ihre Eechtsverhaltnisse 5G 882 APPENDIX. bestimmt werdcn.*' (Syst. 3. 309.) This covers a much wider field 680] than that of *contract in any proper sense. Every transaction answering this description includes an agreement, but many trans- actions answer to it which include far more ; conveyances of property, for example, including dispositions inter vivos by way of trust and even gifts, and marriage. A still further specification is needful to arrive at the notion of Contract. A contract, in Savigny's way of ap- proaching it, is an agreement which produces or is meant to produce an obligation (ohligatorischer Vertrag). It is thus defined in his Obliga- tionenrecht § 53 (vol. ii. p. 8): "Vereinigung Mehrerer zu einer libereinstimmenden Willenserkliirung, wodurch unter ihnen eine Ob- ligation entstchen soil." Xow the use of the more general notion of Vertrag, as Savigny himself explains, is not to clear up anything in the learning of contracts. It is to bring out the truth that other transactions which are not contracts, or which are more than con- tracts, have in common with them the character of consent being an essential ingredient. Moreover we should have to consider, before adopting this terminology, the wider question whether the retention of Obligations as a leading division in a modern system of law, and especially English law, be necessary or desirable. On the other hand, this definition leaves aside the somewhat important question whether and in what cases a binding obligation can be produced by a merely unilateral declaration. The distinction between the ideas denoted by dominium and ohli- gatio is certainly as fundamental in England as anywhere else; and the habit of using " obligation " as a synonym of " duty," though respectable authority may be found for it, is in my opinion to be deprecated. But to apply the Roman terminology to the Common Law would be as violent a proceeding, in any case, as to ignore it in Roman law. For these reasons Savigny's definition, admirable as it is for its own purposes and its own context, and instructive as his work is almost everywhere as an example of scientific method, is now reserved for this note. The reasons for which I am no longer content to adopt the Indian Contract Act to the same extent as in the two first editions have been sufficiently explained in the text. XoTE B. (p. *37). Authorities on Contract hij Correspondence. Adams v. Lindsell. The first case of any importance is Adams v. Liiuhell, 1 B. & Aid. 681 (1818), Finch Sel. Ca. 102. Defendants 681] wrote to plaintiffs, *"'We now offer you 800 tods of wether fleeces, &e." (specifying price and mode of delivery and payment), " receiving your answer in course of post." Here, therefore, the mode and time for acceptance were proscribed. This letter was misdirpcted, and so arrived late. On receiving it, the plaintiffs wrote and sent by COXTPiACT BY COKKllSPONDENCE. 883 post a letter accepting the proposal, but the defendants, not receiving an answer when they should have received it if their proposal had not been delayed, had in the meantime (between the despatch and the arrival of the reply) sold the wool to another buyer. The jury were directed at the trial that as the delay was occasioned by the neglect of the defendants, they must take it that the answer did come back by course of post. On the argument of a rule for a new trial, it was contended that there was no contract till the answer was re- ceived. To this the Court replied : — " If that were so, no contract could ever be completed by the post. For if the defendants were not bound by their offer when accepted by the plaintiffs till the answer was received, then the plaintiffs ought not to be bound till after they had received the notification that the defendants had received their answer and assented to it ; and so it might go on ad infinitum. The defendants must be considered in law as making, during every instant of the time their letter was travelling, the same identical offer to the plaintiffs, and then the contract is completed by the acceptance of it by the latter. Then as to the delay in notifying the acceptance, that arises entirely from the mis- take of the defendants, and it therefore must be taken as against them that the plaintiff's answer was received in course of post." As far as the case goes, it seems to amount to this : As acceptance by letter is complete as against the proposer from the date of post- ing the acceptance if it arrives within the prescribed time, if any, or otherwise within a reasonable time; but if the communication of the proposal is delayed by the fault of the proposer, and the com- munication of the acceptance is consequently delayed, such delay is liot to be reckoned against the acceptor. Dunmore v. Alexander (Sc). In the Scotch case of Dunmore v. Alex- ander, 9 Shaw & Dunlop, 109, and Finch. Sel. Ca. 120 (1830)^ the defendant wrote to a friend desiring her to engage a servant on terms which, that friend had already informed the writer, would be agree- able to the servant. A letter revoking this was written, the next day ; ultimately they were both posted and delivered to the servant at the same time. It w^as held that no contract was concluded, but it is not clear whether the majority of the Court meant to decide that an ac- ceptance sent through the post is neutralized by a revocation arriving at the same *time though posted later, or that the first letter [682 was only a proposal. Xeither is it clear how far and for what pur- poses they regarded the intermediate person as an agent for either or both of the parties. Xo distinction was taken between postal and other communications. The French Court of Cassation had held in 1813 that when an acceptance and the revocation of it arrive together there is no contract. Merlin. Repertoire, Vetite, § 1, Art. 3, No. 11 hi^, Langdell Sel. Ca. Cont. 155. 1 In the later case of Thompson v. James, 18 Dunlop, 1 : LangdelFs Sel. Cas. Cont. 125, it was decided, dissentiente Ld. Ciirriehill, that a contract by letter is complete from the moment of posting the acceptance. 884 APPENDIX. Potter V.Sanders. In Potter v. Sanders (1846) 6 Ha. 1, the posting of a letter of acceptance is said to be an act which " unless interrupted in its progress " concludes the contract as from the date of the posting. This seems to imply that a letter not received at all would not bind the proposer. Dunlop V. Higgins. Then comes Dunlop v. Iliggins (1848) 1 H. L. C. 381, Finch Sel. Ca. 108, a Scotch appeal decided by Lord Cotten- ham. Here the proposal did not prescribe any time, but the nature of it (an offer to sell iron) implied that the answer must be speedy. The acceptance was posted, not by the earliest possible post, but in business hours on the same day when the proposal was received. The post was then delayed by the state of the roads, so that the acceptance was received at 3 p.m. instead of 8 a.m., the hour at which that post should have arrived. The decision was that the contract was binding on the proposer; and it might well have been put on the ground that the acceptance in fact reached him within a reasonable time. Lord Cottenham, however, certainly seems to have thought the contract was absolutely concluded by the posting of the acceptance (within the pre- scribed or a reasonable time), and that it mattered not what became of the letter afterwards. It appears to have been so understood in Du7ican v. Topham (1849) 8 C. B. 235, 18 L. J. C. P. 310, where, however, the decision was on other grounds. Hebb's case and Reidpath's case. The later cases arose out of appli- cations for shares in companies being made and answered by letter. Hehb's case (1867) L. E. 4 Eq. 9, decides only that an allotment of shares not duly despatched will not make a man a shareholder; for the letter of allotment was sent to the company's local agent, who did not deliver it to the applicant till after he had withdrawn his applica- tion. But the same judge (Lord Eomillv) held in Eeidpath's case (1870) L. R. 11 Eq. 86, 40 L. J. Ch. 39," that the applicant was not bound if he never received the letter. British and American Telegraph Co. v. Colson. In British and American Teleyraph Conipauij v. Voiron (1871) L. E. 6 Ex. 108, 40 L. J. Ex. 97, it was found as a fact that the letter of allotment was never re- ceived. The Court (Kelly C. B.. Pigott B., and Bramwell B.) hold 683] that the defendant was not *bound, and endeavoured to restrict the effect of Dunlop v. Iliggins. Townsend's case. In Toivnsend's case (1871) L. P. 13 Eq. 148, 41 L. J. Ch. 198, the letter of allotment miscarried, and was delayed some days by the applicant's own fault in giving a defective address. By a simple application of Adams v. Lindsell (expressly so treated in the judgment, L. R. 13 Eq., p. 154) it was held that the applicant was bound, and that a withdrawal of his application, posted (and it seems delivered, p. 151) before he actually received the letter of allotment, was too late. Harris' case. In Harris' case, L. R. 7 Ch. 587, the letter of allotment was duly received, but in the meantime the applicant had written a CONTRACT BY CORRESPONDENCE. 885 letter withdrawing his application on the ground of the delay (ten u:\yi-) in answering it. These letters crossed. The Lords Ju-tiees (James and Mellish) held that the applicant was bound, on the au- thority of Dunlop V. Higgins, with which they thought it difficult to reconcile British and Ainer. Telegraph Co. v. Colsun (a). On this, however, no positive opinion was given, " because although the con- tract is complete at the time when the letter accepting the offer is posted, yet it may be subject to a condition subsequent that if the letter does not arrive in due course of post, then the parties may act on the assumption that the offer has not been accepted " (per Mellish L.J. at p. 597). Wall's case. In Wall's case (1872) L. E. 15 Eq. 18, 42 L. J. Ch. 372, Malins V.-C. held that as a fact the letter had been received, inclining, however, to think Harris' case an authority for the more stringent construction of Dunlop v. Higgins — viz., that the contract is absolute and unconditional by the mere posting. This construc- tion was held by the Court of Appeal in Household Fire Insurance Co. V. Grant (1879) 4 Ex. D. 216, 48 L. J. Ex. 577, p. *36, above, to be the correct one. American and foreign authorities. The American case of Tayloe v. Mer- chants' Fire Insurance Co., 9 How. S. C. 390 (1850) is of less im- portance to English readers than it formerly was, the ground being now fully covered by our own decisions. The insurance com])any's agent wrote to the plaintiff offering to insure his house on certain terms. The plaintiff wrote and posted a letter accepting those terms, Avhich was duly received. The day after it was posted, but before it was delivered, the house was burnt. The objection was made, among others, that there was no complete contract before the receipt of the letter, an assent of *the company after the acceptance of [684 the proposed terms being essential. But the Court held that such a doctrine would be contrary to mercantile usage and understanding, and defeat the real intent of the parties. This decides that a con- tract is complete as against the proposer by posting a letter which is duly delivered. It may still be useful to cite part of the judgment : — " The fallacy of the argument, in our judgment, consists in the assumption that the contract cannot be consummated without a knowledge on the part of the company that the offer has been ac- cepted. This is the point of the objection. But a little reflection will show that in all cases of contracts entered into between parties at a distance by correspondence it is impossible that both should have a knowledge of it the moment it becomes complete. This can only exist where both parties are present. . . It is obviously impos- sible ever to perfect a contract by correspondence, if a knowledge of both parties at the moment they become bound is an essential element in making out the obligation. . . It seems to us more consistent (a) It seems not to have been disputed that the letter of allotment A\as in fact sent within a reasonable time. S8G APPENDIX. with the acts and declarations of the parties to consider it complete on the transmission of the acceptance of the offer in the way they themselves contemplated, instead of postponing its completion till notice of such acceptance has been received and assented to by the company. " For why make the offer, unless intended that an assent to its terms should bind them ? i^nd why require any further assent on their part after an unconditional acceptance by the party to whom it is addressed?" (Pp. 400, 401.) Place of contract where it is made by correspondence. There seems to be a fair consensus of authority, such as there is, for holding that the place to which t, contract made by correspondence should be referred is that whence the acceptance is despatched. Savigny, Syst. 8. 253, 257 ; Newcomh v. De Roos (1859) 2 E. & E. 270, 29 L. J. Q. B. 4.^ Conversely, where an offer to buy goods is made by a letter posted in the City of London, and accepted by sending the goods to the writers place of business in the City, the whole cause of action arises in the City. Taylor v. Jojies (1875) 1 C. P. D. 87, 45 L. J. C. P. 110. So in criminal law a false pretence contained in a letter sent by post is made at the place where the letter is posted. Reg. v. Hohnes (1883) 12 Q. B. D. 23, 53 L. J. M. C. 37. 685] *N'oTE C. (p. *88). History of the Equitable Doctrine of Separate Estate. Separate estate: Power of alienation. Wlien the practice of settling property to the separate use of married women first became common, it seems probable that neither the persons interested nor the convey- fincers had any purpose in their minds beyond excluding the husband's marital right so as to secure an independent income to the wife. The various forms of circumlocution employed in all but very modern set- 2 Shattuek v. Insurance Co., 4 Cliff. 598 ; Levy r. Cohen, 4 Ga. 1 ; Gippg Brewing Co. v. De France, 91 la. 108; Latrobe V. Winans, 89 Md. 636; Com- inonwealth Ins. Co. v. Knabe, 171 Mass. 20.5: Insurance Co. v. Tuttle, 40 N. J. L. 476; State r. Groves, 121 N. C. 632; Perry v. IVIt. Hope Iron Co., 15 R. I. 380; Tillinghast V. Lumber Co., 39 S. C. 484; cp. Farmers" Co. v. Eazore, 67 Ark. 252; Bell v. Packard, 69 Me. 105; Milliken v. Pratt, 125 Mass. 374; Meyer v. Estes, 164 Mass. 457; Baum r. Birchall, 150 Pa. 104. If a person residing in one State orders goods of one residing in another State, who there delivers the goods ordered to a carrier for the purchaser, the contract is made there, and its validity depends upon the law of the State of the seller's residence. Frank V. Hoey. 128 Mass. 263; Milliken r. Pratt, 125 Mass. :^74; Kline v. Baker, 99 Mass. 253; Finch r. Mansfield, 97 Mass. 89; Webber r. Donnellv. 33 Mich. 469; Bonthby r. Plaisted, 51 N. H. 436; Fuller V. Leet. 59 N. H. 163; Tegler v. Shipman. 33 la. 194; State r. Hughes, 22 W. Va. 743; TuHle v. Holland. 43 Vt. 542: Garbracht v. Commonwealth, 96 Pa. 449. Even though the goods are shipped C. O. D. the better view is that the title passes on shipment. See 4 Col. L. Rev. 541. SEPARATE ESTATE. 887 tlements to express what is now sufficiently expressed by the words '• for her separate use;' will at once suggest themselves as confirming this. In course of time, however, it was found that by recognizing this separate use the Court of Chancery had in etfect created a new kind of equitable ownership, to which it was impossible to hold that the ordinary incidents of ownership did not attach. Powers of dis- position were accordingly admitted including alienation by way of mortgage or specific charge as well as absolutely; and we find it laid down in general terms in the latter part of the eighteenth century that a feme covert acting with respect to her separate property is competent to act as a feme sole (c). Nevertheless the equitable ownership of real estate by means of the separate use, carrying as incidents the same full right of disposition by deed or will that a feme sole would have, was fully recognized only by much later decisions {d). From a mort- gage or specific charge on separate property to a formal contract under seal, such as if made by a person sui iuris would even then have bound real estate in the hands of his heir, we may suppose that the transition did not seem violent ; and instruments expressing such a contract to be entered into by a married woman came to be regarded as in some way binding on any separate property she might have. In what way they Avere binding was not settled for a good while, for reasons best stated in the words of V.-C. Kindersley's judgment in Vaughan v. Vander- stegen (e). Power to bind the separate estate by formal instruments: historical view given by V.-C. Kindersley. " The Courts at first ventured so far as to hold that if " a married woman " made a contract for payment of money by a written instrument with a certain degree of formality and solemnity, as by *a bond under her hand and seal, in that [686 case the property settled to her separate use should be made liable to the payment of it; and this principle (if principle it could be called) was subsequently extended to instruments of a less formal character, as a bill of exchange or promissory note, and ultimately to any written instrument. But still the Courts refused to extend it to a verbal agreement or other assumpsit, and even as to those more formal engagements which they did hold to be payable out of the separate estate, they struggled against the notion of their being re- garded as debts, and for that purpose they invented reasons to justify the application of the separate estate to their payment without recog- nizing them as debts or letting in verbal contracts. One suggestion was that the act of disposing of or charging separate estate by a mar- ried woman was in reality the execution of a power of appointment (/), (c) Hulmev. Tenant (1778) 1 Wh. (d) Taylor v. Meads (1865) 4 D. & T. L. C. In Peacock v. Motile J. & S. 597, 34 L. J. Ch. 203; Pride v. (1750-1) 2 Ves. Sr. 190, there re- Bubb (1871) L. R. 7 Ch. 64, 41 L. J. ferred to by Lord Thiirlow, no such Ch. 105. general rule i? expressed. As to (e) (1853) 2 Drew. 165. 180. the rpcojxnition of separate property (f) E.g. Duke of Bolton v. Wi7- by Courts of Common Law. see Hams (1793) 2 Ves. Jr. at p. 149. Duncan v. Cashin (1875) L. R. 10 C. P. 554, 44 L. J. C. P. 396. 888 APPENDIX. and that a formal and solemn instrument in writing would operate as an execution of a power, which a mere assumpsit would not do. . . . Another reason suggested was that as a married woman has the right and capacity specifically to charge her separate estate, the execution by her of a formal written instrument must be held to indicate an in- tention to create such special charge, because otherwise it could not have any operation." Earlier doctrines now untenable. Both these suggestions are on the later authorities untenable, as indeed V.-C. Kindersley then (1853) judged them to be (^) ; the theory of specific charge was revived in the later case of Shatlock v. ShattocJc (h), but this must be con- sidered as overruled (t). It had really been discarded by Lord Eldon as long ago as 1803 in a case which seems to have been overlooked (!■). One or two other suggestions — such as that a married woman should have only such power of dealing with her separate estate as might be expressly given her by the instrument creating the separate use — were thrown out about the beginning of the nineteenth century (/), during a period of reaction in which the doctrine was thought to have gone too far, but they did not find acceptance; and the dangers which gave rise to these suggestions were and still are provided 687 ] against *in another way by the curious device of the restraint on anticipation (m).'^ Judgment of Turner L.J. in Johnson v. Gallagher. The modern locus dassicus on the subject is the judgment of Turner L.J. in Johnson v, Gallagher (n), which had the full approval of the Judicial Commit- tee (o) and of the Court of Appeal in Chancery (p). The general result was to this effect : "General engagements" may bind separate estate without special form: rules as to this: " Xot only the bonds, bills, and promissory notes of married women, but also their general engagements, may affect their ig) Cp. Murray v. Barlee (1834) (m) See Lord Cottenham's jiulg- 3 M. & K. 209, where the arguments ment in Tiillett v. Armstrong (1838) show the history of the doctrine; 4 My. & Cr. 393, 405, 48 E. R. 127. 0}cens v. Dickenson (1840) 1 Cr. & Restraint on anticipation can exist Ph. 48. 53, where the notions of only as incidental to a trust for sep- power and cliarge are both dia- arate use. Such a trust cannot be missed as inapplicable by Lord Cot- supplied in order to give effect to a tenham. restraint: Stogdon v. Lee [1891] 1 ih) (1866) L. R. 2 Eq. 182, 193, Q. B. 6G1. 670, 60 L. J. Q. B. GG9, 35 L. J. Ch. 509. C. A. (i) Robinson V. Pickering (1881) (n) (1861) 3 D. F. & J. 494, 509 16 Ch. Div. 660. 50 L. J. Ch. 527. sqq.. 30 L. J. Ch. 298. (k) Nantes v. Corrock, 9 Ves. 182, (o) London Chartered Bank of 7 R. R. 156. Australia v. Lempriere (1873) L. R. (I) See Jones v. Harris (1804) 9 4 P. C. 572. 42 L. J. P. C. 49. Ves. 486. 497. 7 R. R. 282, 288; ( p) Picard V. Eine (1869) L. R. Parkes v. White (1804-5) 11 Ves. 5 Ch. 274. 209. 220 sqq. : and collection of cases 5 Ves. 17, note. 3 See Brown r. McGill, 87 Md. 161. SErARATE ESTATE. 889 separate estates " (3 D. F. & J. 514) ; and property settled to a mar- ried woman's separate use for her life, with power to dispose of it b}' deed or will, is for this purpose her separate estate (q). These " general engagements " are subject to the forms imposed by the Statute of Frauds or otherwise on the contracts made in pari materia by persons competent to contract generally, but not to any other form : there is no general rule that they must be in writing.^ A " general engagement " is not binding on the separate estate un- less it appear " that the engagement was made with reference to and upon the faith or credit of that estate " (3 D. F. & J. 515). Whether it was so made is a question of fact to be determined on all the circumstances of the case : it is enough '' to show that the married woman intended to contract so as to make herself — that is to say, her separate property — the debtor" (L. R. 4 P. C. 597.) Such intention is presumed in the case of debts contracted by a married woman living apart from her husband (3 D. F. & J. 521).'^ (This tallies with the rule of common law, which in this case ex- cludes even as to necessaries the ordinary presumption of authority to pledge the husband's credit: see notes to Manhy v. Scott in 2 Sm. L. C.) The like intention is inferred where the transaction would be other- wise unmeaning, as where a married woman gives a guaranty *for her husband's debt (r)^ or joins him in making a promis- [688 scry note (s).'' The " engagement " of a married woman differs from a contract, inasmuch as it gives rise to no personal remedy against the married woman, but only to a remedy against her separate property (t). iq) Mayd v. Field (1876) 3 Ch. D. referring to the separate estate, was 587, 593, 45 L. J. Ch. 699, s. v. Roper effectual to bind it. V. Doncaster, note (x) next page. (s) Dafies v. Jenkins (1877) 6 (r) Morrell V. Cotcan (1877) 6 Ch. Ch. D. 728. D. 166 (reversed 7 Ch. Div. 151, 47 (t) Hence, before the Act of 1882, L. J. Ch. 73, but only on the con- the married Avoman, not being a real struction of the document), where debtor, was not subject to the bank- no attempt Avas made to dispute that ruptcy law in respect of her separate the guarantv, though not expressly estate: Ex parte Jones (1879) 12 Ch. Div. 484. 48 L. J. Bk. 109. 4 Indiana Yearly Meeting v. Haines, 47 Ohio St. 423. Coleman v. Wooley's Exr., 10 B. Mon. 320; Johnson v. Cummins, 16 X.J. Eq. 97 ; Harshberger's Admr. v. Alger, 31 Graft. 52, 63. 6 Williamson r. Cline, 40 W. Va. 194. 7 Williams V. Urmston, 35 Ohio St. 296; Cowles r. Morgan, 34 Ala. 535; Nunn V. Givhan, 45 Ala. 375; McKenna r. Rowlett, 68 Ala. 186; Lincoln r. RoAve. 51 Mo. 571; Burnett a. HaAvpe's Exr.. 25 Graft. 481, 488; or giA-es her note in payment of her husband's debt; Wicks r. Mitchell, 9 Kan. 80; Skid- more V. Jett, 39 W. Va. 544; or giA'es him her blank indorsement, cA^en though he misapply it ; Frank r. Lilienfeld, 33 Graft. 377. " Such presump- tion cannot be overcome by testimony by the Avife. that such AA'as not her intention. Unless there are circumstances surrounding the transaction AAhich shoAV that such Avas not her intention, it is not material Avhat her secret pur- pose Avas, and the presumption aforesaid will prcA'ail." Hershizer v. Flor- ence, 39 Ohio St. 516; Harris v. Wilson, 40 Ohio St. 301. But see note 9 below. 890 APPENDIX. But it creates no specific charge, and therefore the remedy may be lost by her alienation of such property before suit (3 D. F. & J. 515, 519, 520-2) (u).^ On the same principle the exercise by a married woman of a general testamentary power of appointment does not make the appointed fund liable to her engagements, for it is never her separate property (.r)- In cases where specific performance would be granted as between parties sui iuris, a married woman may enforce specific performance of a contract made with her where the consideration on her part was an engagement binding on her separate estate according to the above rules; and the other party may in like manner enforce specific per- formance against her separate estate (y).^ (7() Ace. Robinson v. Pickering [1804] 1 Ch. 540, G3 L. J. Ch. 334; (1881) 16 Ch. Div. 6C0, 50 L. J. Ch. Re Hughes [1808] 1 Ch. 529, 67 L. J. 527, ^vhic•h decided that a creditor of Ch. 279, C. A.; Re Hodgson [1899] 1 a married woman on the faith of her Ch. Gfifl. 68 E. J. Ch. 313. separate estate is not thereby entitled {y) The cases cited in Sug. V. & to a charge on her separate property, P. 206, so far as inconsistent with or to an injunction to restrain her the motlern authorities (see Picard V. from dealing with it. Hine (1860) L. R. 5 Ch. 274. where {x) Roper v. Doncnsier (1888) 39 the form of decree against the sep- Ch. D. 482, 58 L. J. Ch. 31: qu. how arate estate is given. Pride V. Biihb far consistent with Maijd \. Field, (1871) L. R. 7 Ch. 64, 41 L. J. Ch. note (r/), last page. As to the effect 105), must be considered as over- of s. 4 of the Married \Yomen's Prop- ruled, erty Act. 1882, see now Re Ann 8 The creditor has no lien before suit brought and creditors are not entitled to priority in the order in which they became such. Western Bank r. Na- tional Bank, 01 Md. 613; Klenke r. Kooltze, 75 Mo. 230; Davis r. Smith, 75 l\Io. 210; Maxon v. Scott, 55 N. Y. 247; Hill r. :Myers, 46 Ohio St. 183; Ekerly r. McGee. 85 Tenn. 661; Hughes r. Hamilton, 19 W. Va. 366; Bruff r. Thomp- son, 31 W. Va. 16: Todd v. Lee, 16 Wis. 480. The engagement of a married woman, entered into when she had no separate estate, will not bind her subse- quently acquired separate property. Palliser r. Gurney, 19 Q. B. D. 519; Anke- ney r. Harmon, 187 U. S. 118: Parker r. :Marks, 82 Ala. 548; Kocher r. Cornell, 59'Xeb. 315; Fallis r. Keys, 35 Ohio St. 265; Sticken r. Schmidt, G4 Ohio St. 354; Crockett r. Doriot. 85 Va. 240. Contra, Williamson r. Cline. 40 W. Va. 104. Cp. Harvey r. Curry. 47 W. Va. 800. Under statutes permitting married women to acquire property by purchase, it has been held that a married woman " may purchase property, either real or personal, upon credit, and is personally liable for the purchase price as if she were a fem-e sole; and this although' she had no separate estate at the time of the purchase and without regard to the question as to the purpose for which the purchase was made." Tiemeyer v. Turnquist, 85 N. Y. 516; Ackley v. Westervelt, 86 X. Y. 448; Jones *r. Fleming, 104 N". Y. 418. 432; Cramer v. Hanaford, 53 Wis. 85. But see Leinbach r. Templin. 105 Pa. 522, 24 A. L. Peg. 127, and the note thereto. 9Bruner r. Wheaton, 46 Mo. 363; Hinkley r. Smith, 51 N. Y. 21. A mar- ried woman who makes an engagement binding on her separate estate for the purchase of land is liable in damages for breach of the engagement. Boeckler ;•. :\IcOowan, 9 'Slo. App. 373. In :\rorgan v. Perhamus, 36 Ohio St. 517, it was held that a married woman who being engaged in business with her separate property on her own account, had sold her stock of goods to- gether with the good-will of her business and engaged not to carry on the same business within certain limits, should be enjoined from carrying on such business in violation of her engagement. '•' It is not the woman, as a woman, who becomes the debtor, but her en- gagement has made that particular part of her property which is settled SKPAUATE ESTATE. 891 A married woman's engagement relating to her separate property will have the same effect as the true contract of an owner sui iuris in creating an obligation which will be binding on the property in the liands of an assignee with notice {z). Effect of cessation of coverture. If a married woman becomes sui iuris by the death of the husband, judicial separation or otherwise, what {z) Per Jessel M.R. "ll'arne v. Routledge (1874) L. R. 18 En. 500, 43 L. J. Ch. 604. to her separate use a debtor, and liable to satisfy the engagement." Ex parte Jones, 12 Ch. D. 484, 490; Kocher v. Cornell, 59 Neb. 315; Dougherty v. Sprinkle, 88 N. C. 300. The confusion in regard to the power of a married woman to charge her separate estate and as to what engagements of hers will affect it has been even greater in this country than in England. The subject is exhaustiveh' reviewed in Radford r. Carwile, 13 W. Va. 572, G53, the opinion in which case may be fairly called a treatise on the law of separate estate. The uncertainty attending the subject is illustrated by the earliest two cases of any note relating to it. Ewing r. Smith, 3 Des'aus. 417, and ]\Ieth. Ep. Church v. Jacques, 3 Johns. Ch. 77. The former, reversing the judgment of Ch. Desaussure, laid down the rule that a married woman can charge her separate estate only in so far as the instrument creating it expressly confers that power. In the latter this rule was laid down by Ch. Kent only to be reversed by the Court of Errors, in 17 Johns. 548. The prevailing doctrine now is that the jus dispouendi is an incident to the possession of a separate estate, and that, in any manner not forbidden by the instrument creating it, a married woman may dispose of or incumber her property. Cheever r. Wilson, 9 ^Yall. 108; Imlay v. Huntington, 20 Conn. 14G; Phillips v. Graves, 20 Oliio St. 371; Burnett v. Hawpe's Exr., 25 Gratt. 481; Bain f. Buff, 7G Va. 371: Hughes r. Hamilton, 19 W. Va. 360; Radford V. Carwile, 13 W. Va. 572, 053. \Vhere the engagement of a married woman is made expressly upon the credit of her separate estate, or the indebtedness is expressly made a charge upon it, it is agreed that equity will decree that it shall be paid from such estate, or its income, to the extent to which the power of disposal bv the married woman may go. Stephen v. Beall, 22 Wall. 329; Bank r. Traver. 7 Sawyer, 210; Hall v. Eccleston, 37 Md. 510; Heburn i\ Warner. 112 Mass. 271, 276; Insurance Co. v. Babcock, 42 N. Y. 613; Knowles i: Toone, 96 N. Y. 534; Wooden r. Perkins, 5 Gratt. 345; Elliott V. Gower, 12 R. I. 79. Where by the agreement the consideration is to inure to tlie benefit of the married woman, or of her separate estate, the intention to bind the separate estate need not be expressed but may be im- plied. Williams r. Kinff. 13 Blatchf. 282; Wells V. Thorman, 37 Conn. 318; ]\IcVey r. Cantrell. 70 N. Y. 295; Patrick r. Littell, 36 Ohio St. 79; Dale v. Robinson, 51 Vt. 20; Sargeant r. French, 54 Vt. 384. See also Geiger r. Blackley, 86 Va. 328. Cp. Stowell r. Grider, 48 Ark. 220. It is generally agreed that when a married woman executes a note, bond, or other written obligation, her intention to bind her separate estate may be in- ferred therefrom. OzJev r. Ikelheimer, 26 Ala. 332 ; Sprague v. Tvson, 44 Ala. S38; Dobbin v. Hubbard, 17 Ark. 189, 196; Dallas r. Heard, 32 Ga. 604; Jar- man r. Wilkerson, 7 B. :\Ion. 293 : Lillard r. Turner, 16 B. INIon. 374 ; Bank v. Tavlor, 62 Mo. 338; Bank r. Collins, 75 :Mo. 280; Batchelder r. Sargent, 47 X. H. 262, 205: Phillips i: Graves, 20 Ohio St. 371; Mitchell v. Raymond, 104 Pa. 506: Garland r. Pamphlin, 32 Gratt. 305; Bain r. Buff, 76 Va. 371. Tliis implication is not affected by the fact that the wife, with her husband, executes a mortgasje to secure the pavment of such note. Averv r. Vansickle, 35 Ohio St. 270. The separate estate mav be bound though the plaintiff did not know there was any. Lee r. Cohick. 49 ^lo. App. 188. A married woman who conveys her realty by deed with covenant of war- S92 APPENDIX. becomes of the debts of her separate estate? It appears that they 689] tie not become legal debts; *for this would be to create a new right and liability quite different from those originally created by the parties; but that the creditor's right is to follow in the hands of the owner or her representatives the separate estate held by her at the time of contracting the engagement, and still held by her ranty makes her separate estate liable for breach of the covenant. Barlow v. Dehuiey, 30 Fed. Kep. 577; Guntcr c. Williani.s, 40 Ala. 501; KoUs V. De Lever, 41 Barb. 208; Gerlach v. Redinger, 40 Oliio St. .388. In some States, however, it is held that unless the consideration of the contract is to inure to the benefit of the married woman, or of her separate estate, the intention to bind her separate estate must be expressed, and that her giving a note for the debt is no expression of such intention. Fechheimer c. Pierce, 70 Mich. 440 ; Citizens' Bank v. Sniout, 62 Neb. 223. Where, for instance, she signs a note as surety for another, even though that other he her husband, it is held that this is not enough to make her separate estate liable, unless she expressly declare such intention in the note itself, (or in a co- temporaneous writing Avhich may be read and construed with the note as one paper (Knowles r. Toone, 06 N. Y. 534), and that the existence of such intention cannot be established by oral evidence. Ferrand v. Beshoar, 9 Col. 201; Flanders r. Abby, 6 Biss. 16; Williams r. Hugunin, 69 111. 214; Hodson r. Davis. 43 Ind. 258; Willard r. Eastham, 15 Grav, 328; Nourse r. Hen- shaw, 123 Mass. 96; Smith v. Bond, 56 Neb. 529; Peake v. La Baw, 21 N. J. Eq. 269; Yale v. Dederer, 18 N. Y. 265, 22 N. Y. 450, 68 N. Y. 329; Bank ■r. Pruvn, 90 N. Y. 250; Manhattan Co. v. Thompson, 58 N. Y. 80; Pippen V. Wesson, 74 N. C. 437. In every State in the Union statutes have been passed intended to in- crease the power of married women to contract. These, and the interpreta- tions put upon them, differ so in the various States as to make a brief general statement of what engagements of a married woman are or are not binding simply impossible. Nearly every State has a statute which makes the property of a woman which belongs to her at the time of her marriage, or which comes to her by gift, devise, descent, or purchase with her separate means after marriage, her separate estate. In consequence of these statutes, a large part of the wealth of every State must always be in the hands of married women, and this fact will doubtless operate towards the establishment, either by legislation or the course of judicial decision, of the only simple and logical rule, that the separate estate of a married woman shall be held liable for all engagements entered into by her, wlien it appears expressly or by fair infer- ence that she intended to contract on her own responsibility. A married woman may be a shareholder in a company, and in the event of a ^^■inding-up a contributory in respect of her separate estate, if there is noth- ing special to prevent it in the constitution of the company. Matthewman's Case, 3 Eq. 781. And see Bundy r. Cocke, 128 U. S. 185; Keyser r. Hitz, 133 U. S. 138; Hobart v. Johnson. 19 Blatchf. 359; Anderson r. Line, 14 Fed. Rep. 405; Witters v. Sowles, 32 Fed. Rep. 767, 35 Fed. Rep. 640, 38 Fed. Rep. 700; Re First Bank, 40 Fed. Rep. 120; Robinson v. Turrentine, 59 Fed. Rep. 554 ; Kerr r. Urie, 86 Md. 72 ; In the Matter of the Reciprocity Bank, 22 N. Y. 9. There appears to be nothing to prevent a married woman from entering into an ordinary partnership as far as concerns her separate estate. Penn v. Whitehead, 17 Graft. 503. Cp. under statutes on the one hand, Abbott v. Jackson, 43 Ark. 212; Clay v. Van Winkle, 75 Ind. 239; Plumer v. Lord, 5 Allen, 462; Vail ;;. Winterstein, 94 Mich. 230; Newman v. Morris, 52 Miss. 402; Bitter v. Rathman, 61 N. Y. 512; on the other, Bradstreet v. Baer. 41 Md. 19, 23; Miller v. Marx, 65 Tex. 131; Carey v. Burrus, 20 W. Va. 571. See also De Graum v. Jones, 23 Fla. 83. Whether she may become a partner with her husband under modern statutes has been much litigated. That she may. Re Kinkead, 3 Biss. 405; Bernard, etc., Mfg. Co. i\ Packard, 64 Fed. SEPARATE ESTATE. 893 when she hecame mi iuris, but not any other property. ^"^ Property subject to a restraint on anticipation cannot in any case be bound (a). Liability of separate estate for debts before marriage. A kindred and still open question is this: Can the separate estate of a woman mar- ried before January 1, 1883, be held liable for her debts contracted before marriage ? Apart from recent legislation it seems no less diffi- cult to hold that the coverture and the existence of separate property enable the creditor to substitute for a legal right a wholly different equitable right, than to hold that the cessation of the coverture turns that sort of equitable right into a legal debt.^^ It has been held that after the husband's bankruptcy the wife's separate estate is liable in equity to pay her debts contracted before the marriage (b) ;^^ but Mai ins V.-C. seems to have decided this case partly on the ground ihat the bankruptcy was evidence that the settlement of the property to the wife's separate use was fraudulent as against her creditors. Before the Debtors Act, 18G9, when a married woman and her hus- band were sued at law on a debt contracted by her before the mar- (a) Pike v. Fil~gibhon (1881) 17 gives no power to touch such prop- Ch. Div. 454, 50 L. J. Ch. 394. Ear- erty, see p. ■'89, above. Her cases are indecisive. For the (b) Chuhh \. Htretch (1870) L. R. view taken in the Court below in 9 Eq. 555, 39 L. J. Ch. 329, follow- Johnson V. Gallagher, wliere llie bill wg Biscoe v. Kennedy (17G2) briefly was filed after the death of tlie bus- reported in marginal note to Hulme band, see 3 D. F. & J. 495, and the de- v. Tenant ( 177>'^) 1 Bro. C. C. 17. cree appealed from at p. 497. Tlie The decision of the C. A. in Pike V. Act of 1882 (modified only as to pay- Fitzgibbon (1881) throws great ment of costs by the Act of 1893) doubt on this. Rep. 309 (C. C. A.) : Sclilapback r. Long. 90 Ala. 525; Burney v. Savannah Grocery Co., 98 Ga. 711; Hoaglin r. Henderson, 119 la. 720; Louisville, etc., R. Co. v. Alexander, 10 Ky. L. Rep. 30G ; Toof r. Brewer, 3 So. Rep. 571 (Miss.) : Noel r. Kinney, lOG N. Y. 74; Suau r. Caffe, 122 N. Y. 308; Lane r. Bishop, 05 Vt. 575. That she cannot. Gilkerson-Sloss Co. r. Salinger, 56 Ark. 294; Haas V. Shaw, 91 Ind. 384; Haggett v. Hurley. 91 Me. 542; Mayer r. Soyster, 30 Md. 402; Lord v. Parker, .3 Allen, 127;'Bowker r. Bradford, 140 Mass. 521; Edwards r. McEnhill, 51 IMieh. 105; Artman r. Ferguson, 73 Mich. 140; Payne v. Tliompson, 44 Ohio St. 192; Gwynn v. Gwynn, 27 S. C. 525; Theuss V. Dugger, 93 Term. 41; Seattle Board v. Hayden, 4 Wash. 263; Fuller, etc., Co. r. McHenrv. 83 Wis. 573. 10 Dobbin v. Hubbard, 17 Ark. 189, 197; Klenke r. Koeltze, 75 Mo. 239; Davis r. Smith, 75 Mo. 219; cp. Leaycraft r. Hedden, 3 Green's Ch. 512, 552. And see Quinn's Est., 144 Pa. 444. 11 "After her death, or that of her husband, her creditors on demands ex- isting against her before marriage have an equal right to satisfaction of their demands out of what was her separate property with creditors who have no claim against her personally, but only demands which they may enforce against her separate property, while the latter class of creditors have no right what- ever to satisfaction of their demands out of her general property. Marriage suspends the rights of her creditors, then existing, to sue her alone and pro- ceed against her separate or general property, but the dissolution of the marriage by the death of either husband or wife revives the right of her general creditors against her and her property." Klenke v. Koeltze, 75 Mo. 239; Davis v. Smith. 75 Mo. 219. 12 Dickson v. Miller, 11 S. & M. 594; contra, Vanderheyden v. Mallory, 1 N. Y. 452. 894 APPENDIX. riage and either the husband and wife or the wife alone had been taken in execution, the wife was entitled to be discharged only if she had not separate property out of which the debt could be paid (c) ; and an order for payment can now be made under s. 5 of the Debtors Act on a married woman, and the existence of sufficient separate estate would justify commitment in default (d). But the practice of the Courts in the exercise of this kind of judicial discretion does not throw much light on the question of a direct remedy. 690] * How far is a married woman's "engagement" bound by the ordi- nary forms of contract? On principle it should seem that a married woman's engagement with respect to her separate estate, while not bound by any peculiar forms, is on the other hand bound in every case by the ordinary forms of contract; in other words, that no instru- ment or transaction can take effect as an engagement binding separate estate which could not take effect as a contract if the party were aui iuris. That is to say, the creditor must first produce evidence appropriate to the nature of the transaction which would establish a legal del^t against a party sul iuris, and then he must show, by proof or presumption as explained above, an intention to make the separate estate the debtor. McHenry v. Davies: quaere. There is, however, a decision the oth^-r way. In McIIenry v. Davies (c), a married woman, or rather her separate estate, was sued in equity on a bill of exchange indorsed by her in Paris. It was contended for the defence, among other things, that the bill was a French bill and informal according to French Jaw. Lord Eomilly held that this was immaterial, for all the Court had to be satisfied of was the general intention to make the separate estate liable, of which there was no doubt. This reasoning is quite in- telligible on the assumption that engagements bind separate ?state only as specific charges; the fact that the instrument creating tlie charge simulated more or less successfully a bill of exchange would then be a mere accident (f). The judgment bears obvious marks of this theory; we have seen indeed that it was expressly adopted by the same jndge in an earlier case (g), and we have also seen that it is no longer tenable. In Johnson v. Gallagher it is assumed that a married woman's engagements concerning her separate interest in (c) Ivens v. Butler (1857) 7 E. & cannot be treated as an equitable B. 159, 26 L. J. Q. B. 145; Jny v. assismmcnt: Shand V. Du Buisaon Amphlett (1862) 1 H. & C. 637, 32 (1S74) L. R. 18 Eq. 283. 43 L. J. CIi. L. J. Ex. 176. 508. Xr>r a cheque: Hopkinson V. id) Dillon V. Cunningham (1872) Foster (1S74) L. R. 19 Eq. 74. [The L. R. 8 Ex. 23, 42 L. J. Ex. 11. Here law is otherwise in some jurisdir- the married woman had been sued tions in this country. See Daniel on alone, and there was no plea of Nejj. Inst. § 1643 et seq.; 42 Cent. L. coverture : but probably the same .T. 243 ; 1 1 Harv. L. Rev. 548 : Fourth course would be taken in the case of Street Bank v. Yardley, 165 U. S. a judgment ajjainst husband and wife 634.] for the wife's debt diim sola. (q) Shattork v. f^hattock (1866) (e) (1870) L. R. 10 Eq. 88. L. R. 2 Eq. 182, 35 L. J. Ch. 509, (f) Note, however, that in the case supra p. *669. of parties sui iuris a bill of exchange SEPARATE ESTATE. 895 real estate must satisfy the conditions of the Statute of Frauds (/t). An engagement wliich if she were sui iuris wouki owe its validity as a contract to the law merchant must surely in like manner satisfy the forms and conditions of the law merchant. It is submitted, therefore, that llcllcnry v. Davies (i) is not law on this point. Statute of Limitation. It is now held that the Statute of Limitation, or rather its analogy, applies to claims against the separate estate (k). Can the separate estate be made liable on quasi-contract? It is said that a married woman's separate estate cannot be made liable as on an obligation implied in law, as, for instance, to the repayment of money paid by mistake or on a consideration which *has wholly [691 failed (/). But the decisions to this etfect belong (with one exception) to what we have called the period of reaction, and are distinctly grounded on the exploded notion that a " general engagement," even if express, is not binding on the separate estate. The exception is the modern case of Wriglit v. Chard (m), where V.-C. Ivindersley held that a married Avoman's separate estate was not liable to refund rents which had been received by her as her separate property, but to which she was not in fact entitled. But the language of the judgment reduces it to this, that in the still transitional state of the doctrine, and in the absence of any precedent for making the separate estate liable in any case without writing (this was in 1859, Johnson v. Gallagher not till 1861), the V.-C. thought it too much for a court of first instance to take the new step of making it liable " in the absence of all contract " : and he ad- mitted that " the modern tendency has been to establish the principle that if you put a married woman in the position of a feme sole in respect of her separate estate, that position must be carried to the full extent, short of making her personally liable." The test of lia- bility would seem on principle to be whether the transaction out of which the demand arises had reference to or was for the benefit of the separate estate. Tendency of modern authority and legislation. The spirit of the mod- ern authorities is, on the whole, in the direction of holding that a married woman's " engagement " differs from an ordinary contract only in the remedy being limited to her separate property. Her cred- itor is in a position like that of a creditor of trustees for a society, or the like, who has agreed to look only to a specified fund for payment. And on this view the Married Women's Property Act of 1883 is framed, though it might be wished that the principle had been carried out more thoroughly. (h) (18G1) 3 D. F. & J. at p. 514. (1804) 9 Ves. 480. 403, 7 R. R. 282, (!) (1870) L. R. 10 Eq. 88. and Aguilar v. Agutlar (1820) 5 {k) Re Lady Hastings (1887) 35 Madd. 414. Ch. Div. 94. ' (w) (1850) 4 Drew. 673. 685: on (?) 3D. F. & J. 512, 514, referring appeal, 1 D. F. & J. 567, 29 L. J. Ch. to Duke of Bolton v. Williams 82, but not on this point. (1793) 2 Ves. 138; Jones v. Harris 896 APPENDIX. Note D. (p. *129 above). Limitation of Corporate Powers hy Doctrines of Partnership and Agency. Application of partnership law: Simpson v. Denison. A case in which this reason appears most clearly is Simpson v. Denison (1853) 10 Ha. 51. The suit was instituted by dissentient shareholders to restrain the carrying out of an agreement between their company (the Great Northern) and another railway company, by v/hich the Great North- 692] ern was to take over the whole of that *company's traffic, and also to restrain the application of the funds of the Great Xorthern Company for obtaining an Act of Parliament to ratify such agree- ment. The V.-C. Turner treated it as a pure question of partner- ship : " How would this case have stood," he says in the first para- grapli of the judgment, " if it had been the case of an ordinary lim- ited partnership ? " The Eailways Clauses Consolidation Act became in this view a statutory form of partnership articles, to which every shareholder must be taken to have assented: and the general ground of the decision was that " no majority can authorize an application of partnership funds to a purpose not warranted by the partnership con- tract.*' For the purposes of the case before the Court this analogy Avas perfectlv legitimate; and the dissent expressed bv Parke B. (in South Yorkshire, d-c. Co. v. G. N. R. Co. (1853) 9 Ex. 88, 22 L. J. Ex. 315) must be considered only as a warning against an unqualified extension of it to questions between the corporate body and strangers. Statement of the principle in Pickering v. Stephenson. In PicTcering v. Stephenson (1872) L. E. 11 Eq. 322, 340. 11 L. J. Ch. 493, the same rule is thus set forth by Wickens V.-C. — " The principle of jurisprudence which I am asked here to apply is that the governing body of a corporation that is in fact a trading partnership cannot in general use the funds of the community for any purpose other than those for which they were contributed. By the governing body I do not of course mean exclusively either directors or a general coun- cil (n), but the ultimate authority within the society itself, which would ordinarily be a majority at a general meeting. According to the principle in question the special powers given either to the direct- ors or to a majority by the statutes or other constituent documents of the association, however absolute in terms, are always to be con- strued as subject to a paramount and inherent restriction that they are to be exercised in subjection to the special purposes of the original bond of association." Xothing is said here on the extent to which a corporation may be bound by the unanimous assent of its members. Rights of dissenting shareholders. Any dissenting shareholder may call for the assistance of the Court to restrain unconstitutional acts of the governing body, but he must do so in his proper capacity and interest as a shareholder and partner. If the Court can see that in fact he represents some other interest, and has no real interest of his own (n) Referring to the peculiar constitution of the company then in question. LIMITS OF CORPORATE POWERS. 897 in the action, it will not listen to him; as when the proceedings are taken by the direction of a rival company in whose hands the nominal plaintiff is a mere puppet, and which indemnifies him against cost? : Forrest v. Manchester, &c.Ry. Co. (1861) 4 D. F. & J. 126: so where the suit *was in fact instituted by the plaintiff's solicitor on [693 grounds of personal hostility, Robson v. Dodds (1869) L. E. 8 Eq. 301, 38 L. J. Ch. 647. But if he has any real interest and is pro- ceeding at his own risk, he is not disqualified from suing by the fact that he has collateral motives, or is acting on the suggestion of strangers or enemies to the company, or even has acquired his interest for the purpose of instituting the suit: Colman v. E. C. Ry. Co. (1846) 10 Beav. 1, 16 L. J. Ch. 73; Seaton v. Grant (1867) L. E. 3 Ch. 459, 36 L. J. Ch. 638; Bloxam v. Metrop. Ry. Co. (1868) L. R. 3 Ch. 337. For full collection of cases, see Lindley on Companies, 597. Parties to action. As a rule the plaintiff in actions of this kind sues on behalf of himself and all other shareholders whose interests are identical with his own ; but there seems to be no reason why he should not sue alone in those cases where the act complained of can- not be ratified at all, or can be ratified only by the unanimous assent of the shareholders: Iloole v. G. W. Ry. Go. (1867) L. E. 3 Ch. 262. There is another class of cases in which abuse of corporate powers or authorities is complained of, but the particular act is within the competence of, and may be affirmed or disaffirmed by, " the ultimate authority within the society itself" (in the words of Wickens V.-C. just now cited), and therefore the corporation itself is prima facie the proper plaintiff. See Lindlev on Companies, 574 sqq. ; Gray v. Lewis (1869) L. E. 8 Ch. 1035, 1051; Macdougall v. Gardiner (1875) L. E. 10 Ch. 606, 1 Ch. D. 13, 21; Russell v. WaJcefield Watorworhs Co. (1875) L. E. 20 Eq. 474, 44 L. J. Ch. 496. "The majority are the only persons who can complain that a thing which they are entitled to do has been done irregularly" (o). The exception is when a ma- jority have got the government of the corporation into their own hands, and are using the corporate name and powers to make a profit for themselves at the expense of the minority; then an action is rightly brought by a shareholder on behalf of himself and others, making the company a defendant: Menier v. Hoopers Telegraph Works (1874) L. E. 9 Ch. 350, 43 L. J. Ch. 330; Mason v. Hams (1879) 11 Ch. Div. 97, 48 L. J. Ch. 589. We mention these cases only to distinguish them from thos3 with which we are now concerned. Limited agency of directors, &c. With regard to the doctrine of lim- ited agency, and its peculiar importance in the case of companies con- stituted by public documents, all persons dealing with them being (o) Hellish L.J. 1 Ch. D. at p. v. Gover (1877) G Ch. D. 82, 46 L. J. 25. As to a shareholder's right to Ch. 407 : HiJher Liqht Co. \. Silber use the company's name as plaintiff. (1879) 12 Ch. D. 717, 48 L. J. Ch. see Pender v. LnsUngton (1877) 6 38.'5 : 'Ilarhen v. Phillips (1882-3) 23 Ch. D. 70, 46 L. J. Ch. 317; Duckett Ch. D. 14, 29, 38. 57 898 ArPEXDix. 694] considered to know the *contents of those documents and the limits set to the agent's authority hy them, it may he useful to give Lord Hatherlev's concise statement of the law (when V.-C.) in Foun- taine v. Carmarthen By. Co. (1868) L. E. 5 Eq. 31G, 322, 37 L. J. Ch. 429. " In the ease of a registered joint stock company, all the world of course have notice of the general Act of Parliament and of the special deed which has been registered pursuant to the provisions of the Act,. and if there be anything to he done which can only be done by the di- rectors imder certain limited powers, the person who deals with the directors must see that those limited powers are not being exceeded. If, on the other hand, as in the case of Roijal British Bank v. Tur- qiiancl (p), the directors have power and authority to bind the com- pany, but certain preliminaries are required to be gone through on the part of the company, before that power can be duly exercised, then the person contracting with the directors is not bound to see that all these preliminaries have been observed. He is entitled to presume that the directors are acting lawfully in what they do. This is the result of Lord Campbell's judgment in Royal British Bank v. Tur- quand." For fuller exposition see Lindley on Companies, 166 sqq. Royal British Bank v. Turquand, &c. The contrast of the two classes of cases is well shown in Royal British Bank v. Turquand (p), and Balfour v. Eriiest (1859) 5 C. B. N. S. 601, 28 L. J. C. P. 170. In the former case there was power for the directors to borrow money if authorized by resolution : and it was held that a creditor taking a bond from the directors under the company's seal was not bound to inquire whether there had been a resolution. Jervis C.J. said in the Ex- chequer Chamber (the rest of the Court concurring) : — " We may now take for granted that the dealings with these com- panies are not like dealings with other partnerships, and that the parties dealing with them are bound to read the statute and the deed of settlement. But they are not bound to do more. And the party here on reading the deed of settlement would find not a prohibition from borrowing, but a permission to do so on certain conditions." The same principle has been followed in manv later cases (E.v parte Eagle Insurance Co. (1858) 4 K. & J. 549/27 L. J. Ch. 829; Campbell's case, &c. (1873) L. E. 9 Ch. 1, 24, 43 L. J. Ch. 1 ; Totter- dell V. Fareham Brick Co. (1866) L. E. 1 C. P. 674, 35 L. J. C. P. 278; Re County Life Assce. Co. (1870) L. E. 5 Ch. 288, 39 L. J. Ch. 471. a very strong case, for the persons who issued the policy were as- suming to carrv on business as directors of companv without 695] *any authority at all; Romford Canal Co. (1883) 24 Ch. D. 85, 52 L. J. Ch. 729), and it was decisivelv affirmed by the House of Lords in Maliony v. East Holy ford Mining Co. (1875)' L. E. 7 H. L. 869. In that case a bank had honoured cheques drawn by persons acting as directors of the company, but who had never been prop- erly appointed; and these payments were held to be good as against (p) 5 E. & B. 248, 6 ibid. 237, 24 L. J. Q. B. 327, 25 ibid. 327. LIMITS OF CORPORATE POWERS. 899 the liquidator, the dealings having been on the face of them regular, and with de facto officers of the company. Shareholders who allow persons to assume office and conduct the company's business are, as against innocent third persons, no less bound by the acts of these de facto officers than if they had been duly appointed. It is for the shareholders to see that unauthorized persons do not usurp office, and that the business is properly done (q). Similarly where the proper quorum of directors fixed by internal regulations of the company was not present: County of Gloucester Bank v. Rudry Merthyr, &c. Co. [1895] 1 Ch. 629, 64 L. J. Ch. 451. Creditors are entitled to rely on the authority of a managing director purporting to exercise powers which under the articles he might have: Biggerstaff v. Row- ait's Wharf [1896] 3 Ch. 93, 102, 65 L. J. Ch. 536. In Balfour v. Ernest the action was on a bill given by directors of an insurance company f o • a claim under a policy of another com- pany, the two companies having arranged an amalgamation; this at- tempted amalgamation, however, had been judicially determined to be void: Ernest v. NiclioUs, 6 H. L. C. 401, revg. S. C. nom. Port of London Co/s ca^e (1854) 5 D. M. & G. 465. The directors had power by the deed of settlement to borrow money for the objects and business of the company and to pay claims on policies granted by the company, and they had a power to make and accept bills, &c. which was not restricted in terms as to the objects for which it might be exercised. It was held that, taking this with the other provisions of the de'ed, they could bind the company by bills of exchange only for its ordinary purposes, and not in pursuance of a void scheme of amalgamation, that the plaintiffs must be taken to have known of their want of authority, which might have been ascertained from the deed, and that they therefore could not recover. " This bill is drawn by procuration,"' said Willes J., " and unless there was au- thority to draw it the company are not liable (/•) . . . this is the bare case of one taking a bill from Company A. in respect of a debt due from Company B., there being nothing *in the [696 deed (which must be taken to have been known to the plaintiffs) to confer upon the directors authority to make it." The connection with ordinary partnership law is brought out in the introductory navt of Lord Wensleydale's remarks in Ernest v. Nicholls (1857) 6 H. L. C. 401, 417:— " The law in ordinary partnerships, so far as relates to the powers of one partner to bind the others, is a branch of the law of principal and agent. Each member of a complete partnership is liable for himself, and as agent for the rest binds them upon all contracts made in the course of the ordinary scope of the partnership business. . . . . Any restriction upon the authority of each partner, imposed by mutual agreement among themselves, could not affect iq) Opinion of judges. L. R. 7 H. (r) In form it was a bill drawn by L. at p. 880; Y>er Lord Hatherloy, at two directors on the company's cash- pp. 897-8. icr. and sealed Mith the company's seal. 900 APPENDIX. third persons, unless such persons had notice of them; then they could take nothing by contract [sc. as against the firm] which those restrictions forbade. [The law in this form, i.e., the presumption of every partner being the agent of the firm, being obviously inappli- cable to joint-stock companies], the legislature then devised the plan of incorporating these companies in a manner unknown to the common law, with special powers of management and liabilities, providing at the same time that all the world should have notice who were the persons authorized to bind all the shareholders by requiring the copartnership deed to be registered . . . and made accessible to all." The continuation of the passage, however, goes too far; in fact, it disregards the distinction established by Buijal British Banlc v. Turquand, and the Courts have distinctly declined to adopt it: Agar v. Athencnim Life Assce. Soc. (1858) 3 C. B. X. S. 725, 27 L. J. C. P. 95; Prince of Wales Assce. Co. v. Harding (1857) E. B. & E. 183, 27 L. J. Q. B. 297. See CJiapleo v. Brunswick Building Society (1881) 6 Q. B. Div. 696, 50 L. J. Q. B. 372, for an example of the society not being bound l)y a loan contracted beyond its borrowing powers : the directors, having held themselves out as authorized, were found personally liable. Ratification of irregular transactions by assent of all the shareholders. Transactions in the conduct of a company's affairs which in their inception were invalid as against any dissenting shareholder may nevertheless be made binding on the partnership and decisive of its collective rights, as Ijetween the company and its own past or present members, by the subsequent assent of all the shareholders, though 6uch assent be informal and shown only by acquiescence. The lead- ing examples on this head are given by the well-known cases in the House of Lords which arose in the winding-up of the Agriculturists' Cattle Insurance Company. It is to be observed that these cases turned on the internal constitu- tion and affairs of the company, and there was no occasion to 697] ^consider to what extent or in what transactions the assent of shareholders was capable of binding the company as against strangers. They therefore stand apart from the question of positive statutory limitations of corporate powers as between the company and out- siders. Moreover, the irregular act which was ratified was unau- thorized as to the manner and form of it, but belonged to an author- ized class (s) . The general nature of the facts was thus : At a meeting of the company an arrangement was agreed to. afterwards called the Chippenham arrangement, l)y which shareholders who elected to do so within a certain time might retire from the com- pany on specified terms by a nominal forfeiture of their shares. The deed of settlement contained provisions for forfeiture of shares, but not such as to warrant this arrangement. It was held — In Evans v. Smallcomhe (1868) L. E. 3 H. L. 249, that the is) See per Lord Romillv (L. R. htiry Hailway Carriage Co. (1875) 3 H. L. 244-.^). See also the jud?- L. R. 9 Ex. 289, 43 L. J. Ex. 177. nient of Archibald J. in Riche v. Ash- LIMITS OF CORPORATE TOWERS. 901 Chippenham arrangement could be supported (as having become part of the internal regulations of the company) only by the assent of all the shareholders, but that in fact there was knowledge and acquiescence sufficiently proving such assent. A shareholder who had retired on the terms of the Chippenham arrangement was there- fore not liable to be put on the list of contributories. (Cp. Brother- hood's case (1862) 4 D. F. & J. 566, an earlier and similar decision in the same winding-up.) In Spaceman v. Evans (1868) L. E. 3 H. L. 171, 34 L. J. Ch. 321, that a later and distinct compromise made with a smaller number of dissentient shareholders had not in fact been communicated to all the shareholders as distinct from the Chippenham arrangement, and could not be deemed to have been ratified by that acquiescence which ratified the Chippenham arrangement; and that a shareholder who had retired under this later compromise was therefore rightly made a contributory. In Ilouldsworth v. Evans (1868) L. E. 3 H. L. 263, that time was of the essence of the Chippenham arrangement, so that when a shareholder was allowed to retire on the terms of the Chippenham arrangement after the date fixed for members to make their election, this, in fact, amounted to a distinct and special compromise, which ought to have been specially communicated to all the shareholders : this case therefore followed SpacJcman v. Evans (t). Cp. Stewart's case (1866) L. E. 1 Ch. 511. The question of the shareholders' knowledge or assent in each case *involved delicate and difficult inferences of fact, and on [698 these the opinions of the Lords who took part in the decisions were seriously divided. It may perhaps also be admitted that on some inferences of mixed fact and law there was a real difference; but it may safely he affirmed that on any pure question of law there was none (u). These cases appear to establish in substance the following propositions: (1.) For the purpose of binding a company as against its own shareholders, irregular transactions of an authorized class may be ratified by the assent of all the individual shareholders. (2.) Such assent must be proved as a fact. Acquiescence with knowl- edge or full means of knowledge may amount to proof of assent, and lapse of time, though not conclusive, is material. The converse prop- osition that the assent of a particular shareholder will bind him to an irregular transaction as against the company is likewise well established, but does not fall within our present scope. See Camp- bell's case, &c. (1873) L. E. 9 Ch. 1, 43 L. J. Ch. 1. Phosphate of Lime Co. v. Green. The later case of Phosphate of Lime Co. V. Green (1871) L. B. 7 C. P. 43, was of much the same kind though in a different form. The action was by the company against past shareholders for a debt, and the defence rested on an accord and satisfaction which had been effected by an irregular forfeiture of the {t) (1868). See also L. P.. 7 C. (u) See per Willes J., L. K. 7 C. P. 51, 52, ard note the remark of P. 60. Willes J. p. 53, U L. J. Ch. 321. 902 APPENDIX. defendant's shares, and which in the result was upheld on the ground of tlio shareholder's acquiescence. It was not necessary to consider the distinction between irregular acts which can be ratified and acts contrary to the constitution of the company which cannot be ratified in any wa)% nor was it brought to the attention of the Court (x). Statutory prohibition: Companies Act, 1862. With regard to cases in which ratification is impossible by reason of the corporation being absolutely disabled from undertaking the transaction, the existence of such cases has been recognized almost from the beginning of modern corporation law. "A company incorporated by Act of Parlia- ment for a special purpose cannot devote any part of its funds to objects unauthorized by the terms of its incorporation, however desir- able such an application may appear to be" (y). The application of this principle to companies under the Companies Act, 1862 (the most important class of cases in practice), was fixed by the House of Lords in 1875 in Ashhury, &c. Co. v. Riche, p. *128, above. The House decided that, by the frame and intention of the Act as a whole, 699] the memorandum of association *is the fundamental constitu- tion of the compan}^, and the company is incompetent to undertake anything outside its objects as thereby defined. As a consequence of this, any provision in the articles for applying the company's capital to a purpose not warranted by the memorandum is itself invalid: Guinness v. Land Corporation of Ireland (1882) 22 Ch. Div. 349. For some time past it has been the practice of company drafts- men to frame the memorandum in the most comprehensive terms, in order to prevent questions of this kind from arising; but the decisions remain in full force, and the practice and forms in use cannot be adequately understood without reference to them. As to when the Attornev-General is entitled to interfere, see A.-G. v. G. E. Ry. Co. (1880) 11 Ch. Div. 449; 49 L. J. Ch. 545; A.-G. v. London County Council [1901] 1 Ch. 781, 70 L. J. Ch. 367, C. A. This last case also decides that a county council under the Local G-overnment Act, 1888, is a purely statutory body and has not the general powers of a corporation at common law. XOTE E. Classification of Contracts in Roman and Medieval Law. The verbal contract. Formal Contracts (legitimae conventiones) gave a right of action irrespective of their subject-matter. In Jus- tinian's time the only kind of formal contract in use was the Stipula- tion (z), or verbal contract by question and answer, the question (x) See further on the subject of {z) The litierarum ohlir/afio (Gai. ratification by companies, Lindley on 3. 128) was obsolete. What appears Companies, 175-181. under that title in the Institutes (.^. (y) So laid down as well-settled 21) is a seneral rule of evidence 'iin- doctrine by Lord Crnnworth in E. C. connerted with the ancient "sags: Ifv. Co. V. Hnirlrs (185.5) 5 H. L. C, .see IMoyle's Justinian, E«^c. TwI. 331. 24 L. J. Ch. GOl. CONTKACTS 1\ HUMAN AND MEDIEVAL LAW. 903 being put by the creditor and answered by the debtor (as Dari spondes? spondeo : Proinittis? proniitto: Facies? faciam). The origin of tlie Stipulation is believed to have been religious (a), though the precise manner of its adoption into the civil law remains uncer- tain. ]n our authorities it appears as a formal contract capable of being applied to any kind of subject-matter at the pleasure of the parties. Its application was in course of time extended by the fol- lowing steps. *1. The question and answer were not required [700 to be in Latin (h). 2. An exact verl)al correspondence lietween them was not necessary (c). 3. An instrument in writing purporting to be the record of a Stipulation was treated as strong evidence of the Stipulation having actually taken place (d), and it might be pre- sumed that the form of question and. answer had been duly observed even without express words to that effect (e). Hence the medieval development of operative writings. Nudum pactum and causa. Informal agreements (pacta) did not give any right of action without the presence of something more than the mere fact of the agreement. This something more was called causa. Practically the term covers a somewhat wider ground than our modern " consideration executed " : but it has no general notion corresponding to it, at least none co-extensive with the notion of con- tract; it is simply the mark, whatever that may be in the j^articular case, which distinguishes any particular class of agreements from the common herd of pacta, and makes them actional)le. Informal agreements not coming within any of the privileged classes were called nuda pacta and could not be sued on (/). The term nudum pactum is sometimes used, however, with a special and rather different meaning, to express the rule that a contract without delivery will not pass property {g). The further application of this metaphor by speaking of the causa when it exists as the clothing or vesture of the agreement is without (a) Savigny's derivation of the use of written agreements had much Stipulation from the nexum is aban- to do witli this. donod, so far as I know, by all re- (e) Paul. Sent. V. 7, § 2. For de- cent writers. It seems quite possible tailed discussion see Seuffert, Zur that the earliest type of contract is Geschichte der obligatorischen Ver- to be sought in covenants made be- triige, § 3. tAveen independent tribes or families. (f) They gave rise however to im- Cf. Gai. 3. 94 on the use of the word perfect or " natural " obligations spo7ideo in treaties. If this were so, which had other legal effects, one would expect the covenant to be {()) Traditonibus et usucapionibus confirmed by an oath, of Avhich Muir- dominia rerum, non nudis pactis, head (on Gai. .3. 02) finds a trace on transferuntur. Cod. 2. 3. de pactis. ■other grounds in the form promittis'! 20. But the context is not preserved. proinitfn. and the particular pactum in ques- (b) Gai. 3. 93, I. 3. 15, de v. o. § 1. tion may have been undum in the (c) C. 8. 38. de cont. et comm. general sense too. When the con- stinul. 10. trary rule of the Common Law be- (d) C. 8. 38. de cont. et comm. came fixed is a question for which •vStipul. 14, I. 3. 19. de inut. stimil. more light ic still wanted. § 12. Probably Greek and provincial 904 APPENDIX. classical authority but very common : it is adojited to the full extent by our o^yn early writers (h). 701] * What informal contracts enforceable. The privileged informal contracts were the following : 1. Real contracts, where the causa con- sisted in the delivery of money or goods: namely, mutui datio, com- modatum, depositum, pignus, corresponding to our bailments. This class was expanded within historical times to cover the so-called innominate contracts denoted by the formula Do ut des, &c. (t), so that there Avas an enforceable obligation re contracta wherever, as we should say, there was a consideration executed : yet the procedure in the different classes of cases was by no means uniform [h). 2. Consensual contracts, being contracts of constant occurrence in daily life in which no catLsa was required beyond the nature of the transaction itself. Four such contracts were recognized, the first three of them at all events (/), from the earliest times of which Ave know anything, namely. Sale, Hire, Partnership, and Mandate. (Emptio Venditio, Locatio Conductio, Societas, Mandatum.) To this class great additions were made in later times. Subsidiary con- tracts (pacta adiecta) entered into at the same time and in connexion with contracts of an already enforceable class became likewise enforce- able: and divers kinds of informal contracts were specially made actionable by the Edict and by imperial constitutions, the most mate- rial of these being the constitutum, covering the English heads of account stated and guaranty. Justinian added the pactum dona- tionis, it seems with a special view to gifts to pious uses (m). Even after all these extensions, however, matters stood thus : " The Stipu- lation, as the only formal agreement existing in Justinian's time, gave a right of action. Certain particular classes of agreements also gave a right of action even if informally made. All other informal agreements (tiuda pacta) gave none. This last proposition, that 7iuda pacta gave no right of action, may be regarded as the most characteristic principle of the Eoman law of Contract" (?i). It is (/i) " Pactum nudum est non vesti- (Comm. ii. 444) took this formula turn stipulatione vel re vel litteris for a classification of all valuable vel consensu vel contractus cohaeren- considerations, and his blunder was tia " : Azo, Summa in Cod. ap. Seuf- copied without reflection by later fert op. cit. 41 ; Maitland, Bracton writers, and Azo, 143. " Obligatio quatuor (k) Di^r. 1. c §§ 1-4. species habet quibus contrahitur et (Z) See Muirhead on Gai. .3. 216. plura vestimenta," Bracton, 99a. (m) C. 8. 54, de donat, 35, § 5. The " Obligacioun deit estre vestue de v. establishment of emphyteusis as a maneres de garnisementz," Britton 1. distinct species of contract is of 156. Austin (Jurisprudence, 2. minor importance for our present 1016, 3rd ed. ) spoke per incuriam of purpose. the right of action itself, instead of in] Sav. Obi. 2. 231. Muirhead, on that which gives the right, as being Gai. 3. 134, says that "amongst the " clothing." peregrins a nudum pactum was cre- (i) Aut enim do tibi ut des, aut ative of action:" which seems to be do ut facias, aut facio ut des. aut a slip. Provincial usage, so far as facio ut facias; in quibus quaeritur known, was less advanced than Ro- quae obligatio nascatur. D. 19. 5. man: thus the contract of sale was de praescr. verbis, 5 pr. Blackstone fas in Germanic custom) real and CONTRACTS IX ROMAX AXD MEDIEVAL LAW. 905 desirable to bear in mind that in Eoman, and *thereforc also [702 in early English law-texts, nudum pactum does not mean an agree- ment made without consideration. Many niida pacta, according to the classical Roman law, would be quite good in English law, as being made on sufficient consideration; while in many cases obliga- tions recognized by Roman law as fully binding (e.g., from mandate or negotiorum gestio) would he unenforceable, as being without con- sideration, in the Common Law. Modern civil law. When the Roman theory came to be adopted or revived in Western Christendom, the natural obligation admitted to arise from an informal agreement was, under tlie influence of the canonists, gradually raised to full validity, and the difference between jjactum and legitlma conventio ceased to exist (o). The process, how- ever, was not completed until English law had already struck out its own line. The deed in English medieval law. The identification of Stipulation with formal writing, complete on the Continent not later than tbe 9th century {p), was adopted by our medieval authors. In Glanvill we find that a mans seal is conclusive against him {q). Bracton, after setting forth almost in the very words of the Institutes how "Vei-bis contrahitur obligatio per stipulationem," &c, adds: " Et quod per scripturam fieri possit stipulatio et obligatio videtur, quia si scriptum fuerit in instrumento aliquem promisisse, perinde habetur ac si interrogatione praecedente responsum sit" (r). There is no doubt that he means only a writing under seal, though it is not so expressed : Fleta does say in so many words that a writing unsealed will not do (s). The equivalent for the Roman Stipulation being thus fixed, the classes of Real and Consensual contracts are recog- nized, in the terms of Roman law so far as the recognition goes : the Consensual contracts are but meagrely handled for form's sake, as the Roman rules could not be reconciled with English practice (t). We hear of *nothing corresponding to the later Roman extensions [703 of the validity of informal agreements. Such agreements in general not consensual: Clilson, L'etude du (Dd. 7. 6) : Differt pactum a con- droit romain compare aux autres ventione quia pactum solum consistit droits de I'antiquite (1890) p. 217. in sermonihus, ut in stipulationibus, (o) Seuffert op. cit. cp. Harv. Law conventio tarn in sermone quam in Rev. vi. 390, 391. See Esmein. opere, ut cum in scriptis redigitur. Etudes sur les contrats dans le tres (s) Lib. 2, c. 60, § 25. Xon solum ancien droit frangais, Paris 1883, for suflRciet scriptura nisi sipilli muni- the earlier medieval history. mine stipulantis (see p. *137, above) ip) Details and authorities in roboretur cum testimonio fide dig- Brunner, Rom. u. German, L'rkunde. norum praesentium. (7) L. X. c. 12. (t) Bracton's law of sale, like (r) 99 b. 100 a. Later students Glanvill's. is the old Germanic law of Roman law seem to have been dis- in which the contract is not con- satisfied; at any rate the following sensiial but real: fo. 61 b., Giiter- curious marginal note occurs in an bock, p. 113. Mandate is still un- f'arlv 14th century ISIS, of Bracton known to the Common Law. in the Cambridge L'niversity Library 906 APPENDIX. give no right of action: in Glanvill it is expressl_y saiQ: " Privatas eonventiones non solet curia doniini regis tueri"(M); the context makes it doubtful whether even agreements under seal were then recognized by the King's Court unless they had been made before the Court itself. In Bracton too, notwithstanding his elaborate copy- ing of Roman sources, we read : " Indicialis auteni esse poterit stipu- latio, vel conventionalis : iudicialis, quae iussu iudicis fit vel praetoris. Conventionalis quae ex conventione utriusque partis concipitur, nee iussu iudicis vel praetoris, et quarum totidem sunt genera quot paene (x) rerum contrahendarum, de quibus omnibus omnino curia regis se non intromiUH nisi aUquando de gratia" (fo. 100a). XoTE F. (p. *217). Early Authorities on Assignments of Chases in Action. 1. Cases where a direct assignment only is in question. In Mich. 3 Hen. 1\, S, pi. 34, is a case wliere a grantee of an annuity from the king sued on it in his own name. Xo question seems to have been raised of his right to do so. In Hil. 37 Hen. YI. 13, pi. 3, it appears that by the opinion of all the justices an assignment of debts (not being by way of satisfaction for an existing debt) was no consideration {quid pro quo) for a bond, forasmuch as no duty was thereby vested in the assignee : and the Court of Chancery acted on that opinion by decreeing the bond to be delivered up. The case is otlierwise interesting, as it shows pretty fully the relations then existing between the Covirt of Cliancery and the Courts of Common Law, and the cardinal doctrine that the juris- diction of equity is wholly personal is stated with emphatic clearness. In Hil. 21 Ed. IV. 84, pi. 38, the question was raised whether an annuity for life granted without naming assigns could be granted 704] *over; and the dictum occurs that the right of action, whether on a bond or on a simple contract, cannot be granted over. Mich. 39 Hen. VI. 26, pi. 36. If the king grant a duty due to him from another, the grantee shall have an action in his own name : " et issint ne fuit mil autre faire." So Mich. 2 Hen. VII. 8, pi. 25. " Le Boy poit granter sa accion on chose qui gist en accion ; et issint ne poit nul auter person." In Eolle Al)r. Action sur. Case, 1. 20, pi. 12, this case is stated to (n) Lib. X. c. 18, and more fully ib. ceedings, where several instances c. S. "Curia domini regis" is sig- vill be found; Harv. Law. Rev. vi. rificant, for the ecclesiastical courts, 402. and, it seems, local and private (x) This is evidently the true courts. did take cognizance of reading: the printed book has pnenar, breaches of informal agreements as seemingly a mere printer's misread- being against good conscience, \h. c. ing of pene, which is given by the 12; Blackstone, Comm. i. .52, and au- best MSS. Bracton was copying the thorities there cited: Archdeacon language of I. 3. 18, § 3. Hale's Series of Precedents and Pro- ASSIGNMENTS OF CITOSKS IN ACTION. 907 liave bGoii docided in B. K., 42 Eliz., between Mowse and Edney, j)er curiam: A. is indebted to B. by bill {i.e., the now obsolete form of bond called a single bill), and B. to C. B. assigns A.'s bill to C. forbearance on C.'s part for a certain time is no consideration for a promise by A. to pay C. at the end of that time {s. v. contra, ih. 29, pi. GO) : for notwithstanding tlie assignment of the bill, the property •of the debt remains in the assignor. In none of these cases is there a word about maintenance or public policy. On the contrary, it appears to be assumed throughout that the impossibility of effectually assigning a chose in action is inherent in the legal nature of things. Finally, in Termes cle la Ley, tit. Chose in Action, the rule is briefly and positively stated to this effect: Things in action which are certain the king may grant, and the grantee have an action for them in his own name : but a common ■person can make no grant of a thing in action, nor the king himself •of such as are uncertain, Xo reason is given. The exception in favour of the Crown may perhaps be derived from ihe universal succession accruing to the Crown on forfeitures. This would naturally include rights of action, and it is easy to under- stand how the practice of assigning over such rights might spring up without much examination of its congruity with the legal prin- •ciplcs governing transactions between subjects. Before the expulsion of the Jews under Edward I. they were treated as a kind of serfs of the Crown {ipsi ludaei cf omnia sua regis sunt, Pseudo-L. Edw. Conf. c. 25 ; tai/IIahles au Boy come les soens ^erfs et a mil autre: Statutes of Jewry, temp, incert., dated by Prynne, 3 Ed. ].). and the king accordingly claimed and exercised an arbitrary ])0wcr of confiscating, releasing, assigning, or licensing them to assign, the deljts due to them. Cp. charter of Frederick II. Pet. de A'ineis Epist. lib. G, no. 12 : " omnes et singuli ludaei degentes Tibique per terras nostrae iurisdictioni subiectas Christianae legis et Imperii praerogativa servi sunt nostrae Camerae speciales." And ■see on this subject Y. B. 33 Ed, I. pp. xli. 355, and Prynne's " Short Demurrer to the Jews," &c. (Lond. 1G5G, a violent polemic against their re-admission to England), passim. *2. Cases where the right of an assignee to sue in the name of the [705 assignor was in question. Jn Ilil. 9 Hen. Yl. G-i, pi. IT, Thomas I\othe- wel sues J. Power for maintaining \\. II. in an action of detinue :against him, Eothewel, for '' vn box ore charters et muniments." Defence that W. 11. had granted to Pewer a rentcharge, to which the muniments in question related, and had also granted to PeAver the box and the deeds, then being in the possession of Eothewel to the use of W. H. Avherefore Pewer maintained W. H., as he well might. To this Paston, one of the judges, made a curious objection bv way of dilemma. It was not averred that W. H. was the owner of the deeds, but only that Eothewel had them to his use; and so th^ property of them might have been in a stranger: " ct issint ceo fuit ckose en accion et issint tout void." The precise meaning of thcs^^ vnrds is not very clear, but the general drift is that, for anything 908 APPENDIX. that appeared, W. H. had no assignable interest whatever; and it looks as if tlie strong expression tout void was meant to take a higlicr ground, distingnishing between a transaction impeachable for mainte- nance and one wholly ineffectual from the beginning. Jt may have been supposed that an assignment by a person out of possession could have no effect. But if W. PI. was the true owner, Paston continued, then the whole property of the deeds, &c., passed to Fewer, who ought to have brought detinue in his own name (y). Babington C.J. and Martyn J., the other judges present, were of a contrary opinion, hold- ing that any real interest in the matter made it lawful to maintain the suit. The attempt to assign a chose in action is here compared by the counsel for the plaintiff to the grant of a reversion without at- tornment; showing that the personal character of the relation was considered the ground of the rule in both cases. In Mich. 3-i Hen. VI. 30, pi. 15, Robert Horn sued Stephen Foster for maintaining the administrators of one Francis in an action against him, E. Horn: the circumstances being that Horn was indebted to Francis by bond, and Francis being indebted to Stephen in an equal sum assigned the debt and delivered the bond to him, authorizing him, if necessary, to sue on it in his (Francis') name, to which Horn agreed; and now Francis had died intestate, and Stephen was suing on the bond in the name of the administrators with their consent. And this being pleaded for the defendant, was held good. Prisot, 706] in giving judgment, compared the case of the ^'cestui que use of lands, whether originally or claiming by purchase through him to whose use the feoffment was originally made, taking part in any suit touching the lands. On this Fitzherbert remarks {Mayntenauns, 14) " Nota icy que per ceo il sernhle que un duite puit estre assigne pour satisfaction/' So it is said in Hil. 15 Hen. VII. 2, pi. 3, that if one is indebted to me, and deliver to me an obligation in satis- faction of the debt, wherein another is bound to him, I shall sue in my debtor's name, and pay my counsel and all things incident to the suit; and so may do he to whom the obligation was made, for each of us may lawfully interfere in the matter. Brooke, Abr. 140 h, observes, referring to the last-mentioned case : "^ Et sic vide que chose in accion poet estre assigne oustre pur loyal cause, come iust det, mez nemy pur maintenance." This form of ex- pression is worth noting, as showing that assignment of a chose in action meant to the writer nothing else than empowering the assignee to sue in the assignor's name. He was at no pains to explain that he did not mean to say the assignee could sue in his own name; for he did not think any one could suppose he meant to assert such a plainly impossible proposition. It was long supposed (as is implied in Fitzherbert's and Brooke's langu-age — and see the case in 37 Hen. VI., cited p. *703, alwve) that (i/) Another argument put In' the and the deeds relatinfj to it. yet he plaintiff's counsel, tliough not very had none in the box, and therefore in material, is too quaint to be passed respect of the box, at all events, there over: Whatever interest Fewer mip;ht was unlawful maintenance on his have had hy the grant of the rent part. STATUTORY KKSTRICTIONS OX COXTRACT. 909 the assignment of a (Idjt Ijy way of sale, as opposed to satisfaction of ?.D existing liability, was maintenance. Even under the Kestoration the Court of Chancery would not protect the assignment of any chose in action unless in satisfaction of some debt due to the assignee: Freem. C. C, 145, pi. 185, see Prof. Ames in Harv. Law Rev. i. 6, note; and further on the whole matter, Harv. Law Rev. iii. 337 sqq. This evidence seems sufficient to establish with reasonable cer- tainty the statement in the text. The historical difficulty is one which extends to the whole of our law of contract, namely, that of tracing any continuity of general principles in the interval between the Romanized expositions of tliem in Bracton and Britton and their iirst ajjpearance in a definitely English form. *XoTE G. (pp. *300, *301). [707 Occupations, dealings, &c., regidated or restrained by statute. (The list here given is probably not complete. A certain number of the references have been taken from the Index to the Revised Statutes without furtlier verification. The occasional asterisks mean that further remarks on the Act or matter thus denoted will be found in the chapter on Agreements of Imperfect Obligation.) Anchoi's. See Vliain Cables. Apothecaries. 55 Geo. 3, e. 194; 37 & 38 Vict. c. 34. Art Unions. Excepted from Lotteries Acts, 9 & 10 Yict. c. 48. Attorneys. See Solicitors. Banl-ers. 3 & 4 Wm. 4, c. 98 ; 7 & 8 Vict. c. 32 ; 8 & 9 Vict. c. 76 ; 17 & 18 Vict. e. 83, ss. 11, 12. See Lindley on Partnership, 103. Brewers. Inland Revenue Act, 1880, 43 '& 44 Vict. c. 20, Part 2; 48 & 49 Vict. c. 51. Brokers. 6 Ann. c. G8 (Rev. Stat); 57 Geo. 3, c. Ix. ; rep. in part, 33 & 34 Vict. c. GO; 47 Vict. c. 3. Smith v. Undo (1858) 4 C. B. X. S. 395 ; 5 ib. 587 ; 27 L. J. C. P. 196, 335. Building. See Metro jjolitaii Buildings. Cabs and JIacl-uey Carnaqcs (London). See 16 & 17 Vict. c. 33; 32 & 33 Vict. c. nS; 59 & 60 Vict. c. 27. Cattle. (Sale in London) 31 Geo. 2, c. 40. Chain Cables and Anchors. (Sale forbidden if not tested and stamped) 62 & 63 Vict. c. 23. Chemists. 15 & 16 Vict. c. 56; 31 & 32 Vict. c. 121 ; 61 & 62 Vict. c. 25; and see Poison (sale of). Chimney Smeepers must take out a certificate, and are liable to penalties if they exercise their business without one: 38 & 39 Vict, c. 70. Clergy. Charging Itonefices forbidden, 13 Eliz. c. 20; Ex parte Arrowsmith (1878)' 8 Ch. D. 96, 47 L. J. Bk. 46; and see the Bene- fices Act, 1898, 61 & 62 Vict. c. 48. Trading forbidden, 1 & 2 Vict. c. 106. Supra, p. *298. 910 APPENDIX. Coals. (Sale in London) 1 & 2 Vict. c. cli. Coal Mines Kegiilation Act, 1887, 50 & 51 Vict. c. 58, Part 1; 1894, 57 & 58 Vict. c. 52. Companies. (Formation of; partnerships of more than ten per- sons for banking, or twenty for otlier purposes, must, if not other- wise privileged, be registered under the Act) Companies Act, 18G2, p. 4. As to what is an association for the acquisition of gain 708] *within that sect., see Smith v. Anderson (1880) 15 Ch. Div: 247, 50 L. J. Ch. 39, overruling Sijles v. Beadon (1879) 11 Ch. D. 170, 48 L. J. Ch. 523. ■Conveyancers. 54 & 55 Vict. c. 39, s. 44. Supra, p. *296. Dangerous Goods (importation, manufacture, sale, and carriage). Xitro-glycerine, &c. Explosives Act, 1875, 38 Vict. c. 17. Petroleum. &c. 34 & 35 Vict. c. 105; 42 & 43 Vict. c. 47. Generally : Explosive Substances Act, 1883, 46 Vict. c. 3 (but this has only a remote bearing on anv contract). Dentists. 41 & 42 Vict. c. 33; 49 & 50 Vict. c. 48, s. 26. Excise. Many early statutes and most of the recent annual Finance Acts contain general regulations as to trades and businesses subject to the excise laws. It is not thought necessary to set out these in detail. Fertilisers and Feeding Stuffs. 56 & 57 Vict. c. 56. Food. The sale of any article " diseased, unsound, unwholesome^ or unfit for the food of rnan " forbidden; 53 & 54 Vict. c. 59, s. 28;. and see 62 & 63 Vict. c. 51. Game (sale of). 1 & 2 Wm. 4, c. 32. Porritt v. Baker (1855) 10 Ex. 759. Gaming Securities. 5 & 6 Wm. 4, c. 41 ; 55 Vict. c. 9. Goldsmiths. 17 & 18 Vict. c. 96 (and several earlier Acts). Gunpowder (manufacture and keeping). Explosives Act, 1875^ 38 & 39 Vict. c. 17. Insurance (Life). Assured must have interest,^^ 14 Geo. 3, c. 48. The statute is a defence for the insurers, but if they choose to pay on an insurance without interest the title to the insurance moneys as between other persons is not affected : Worthingtoii v. Curtis (1875) 1 Ch. Div. 419, 45 L. J. Ch. 259, see p. *382, supra. Eestriction on insurance of lives of infants: 39' & 40 Vict. c. 22,. s. 2. (^Marine.) The like: insurances of goods on British ships, "inter- est or no interest, or without further proof of interest than the policy, or by way of gaming or wagering, or without benefit of salvage to the assurer," are made void by 19 Geo. 2, c. 37. See notes to Goram V. Siueeting, 2 Wms. Saund. 592-7. The prohibition of this statute extends to policies on profit and commission: Allhins v. Jupe (1877) 2 C. P. D. 375, 46 L. J. C. P. 824. * Requirement of stamped policy, 54 & 55 Vict. e. 39, s. 92. Intoxicating Liquors. Licensing Acts, 1872-1874, 35 & 36 Vict, c. 94, and 37' & 38 Vict. c. 49 (and several earlier Acts). 13 In this country since wagers have been held illejijal at common law insurable interest is necessary for the creation of a valid policy. See 16 Am. k Eng. Encyc. of Law (2d ed.), 845 et scq. STATUTORY RESTRICTIONS OX CONTRACT. 911 56 Vict. c. 17 (as to the sale of spirituous liquors in the North Sea). 1 Edw. 7. Sale of intoxicating liquors to children. *Landlord and Tenant. Property tax: 5 & 6 Vict. c. 35, [709 s. 103. Lanih v. Brewster (1879) 4 Q. B. Div. 607, 48 L. J. Q. B. 421. Ground game: 43 & 44 Vict. c. 47, s. 3. Loans, to Infants, Forbidden. 55 Vict. c. 4. As to presumption of knowledge of infancy, see 63 & 64 Vict. c. 51, s. 5. Lotteries. Forbidden by 10 Wm. 3, c. 23 (Rev. Stat.: al. 17) and a series of penal statutes, of which the last is 8 & 9 Vict. c. 74. Marine Store Dealers. ' Public Stores Act, 1875, 38 & 39 Vict. c. 25, ss. 9-11. * Medical Practitioners. 21 & 22 Vict. c. 90, 22 Vict. c. 21, 23 & 24 Vict. cc. 7, 66, 39 & 40 Vict. cc. 40, 41 (the latter Act expressly per- mitting the registration of women), 49 & 50 Vict. c. 48. Metropolitan Buildings. 18 & 19 Vict. c. 122, 25 & 26 Vict. c. 102. Money. Contracts, &c., must be made in terms of some currency. Coinage Act, 1870, 33 Vict. c. 10, s. 16. Money-lenders. The Money-lenders Act, 1900 (63 & 64 Vict. c. 51). See p. *631, above. Old Metal. (Minimum quantities to be bought at one time by dealer in) Prevention of Crimes Act, 1871, 34 & 35 Vict. c. 112, s. 13. PaumbroJcers. 35 & 36 Vict. c. 93. Supra, p. *297. Poison (sale of). 31 & 32 Vict. c. 121. s. 17, and see 32 & 33 Vict. c. 117, s. 3. Berry v. Henderson (1870) L. E. 5 Q. B. 296, 39 L. J. M. C. 77. Postage Stamps. 47 & 48 Vict. c. 76, s. 7, makes it an offence to deal in or sell any fictitious stamp (including imitations of colonial and foreign stamps). Printing. 32 & 33 Vict. c. 24. Bensley v. Bignold (1822) 5 B. & Aid. 335, 24 E. E. 401, supra, p. *293. Public Office (sale forbidden). 5 & 6 Edw. 6, c. 16 ; 3 Geo. 1, c. 15 ; 49 Geo. 3, c. 126 ; 53 Geo. 3, e. 54; 1 & 2 Geo. 4, c. 54; see Grame v. Wroughton (1855) 11 Ex. 146, 24 L. J. Ex. 265. Railway Servants. Eestriction on excessive hours of labour : 56 & 57 Vict. c. 29. Religious Opinions (expression of). 9 Wm. 3, c. 35 (Eev. Stat.: al. c. 32). See Coican v. Milhourn (1867) L. E. 2 Ex. 230, 36 L. J. Ex. 124. Seamen. Sale of or charge upon wages or salvage invalid, Mer- chant Shipping Act, 1894 (57 & 58 Vict. c. 60), ss. 163 (1), 212. As to seamen's wages generally, see 57 & 58 Vict. c. 60, ss. 131 — 167. Shipping (passenger steamers). Voyage without Board of Trade certificate unlawful. Merchant Shipping Act. 1894 (57 & 58 Vict. c. 60). ss. 271, 281. Dudgeon v. Pembroke (1874) L. E. 9 Q. B. 581, 43 L. J. Q. B. 220. Simony. Purchase of next presentation, 13 Ann. c. 11 (Eev. *Stat.: al. 12 Ann. Stat. 2. c. 12). The purchase of a life es- ["710 tate in an advowson is not within the statute, and the purchaser, if a clerk, may offer himself for admission on the next avoidance: Walsh V. Bishop of Lincoln (1875) L. E. 10 C. P. 518, 44 L. J. C. P. 244. 912 APPENDIX. Slave Trade. Illegal, and contracts relating to avoided, 5 Geo. 4, c. 113, G & r Yict. c. 98, 36 & 37 Vict. c. 88. As to construction of tlie statutes on contracts made abroad, Santos v. lUidge (1860) 6 C. B. N. S. 841, 28 L. J. C. P. 317, in Ex. Ch. 8 C. B. ^\ S. 861, 29 L. J. C. P. 348. SoUcitors. 23 & 24 Yict. c. 127, 51 & 52 Vict. c. 65. Unqualified persons are forbidden to practise, and a solicitor omitting to take out annual certificate cannot recover costs. Special agreements in writing between solicitor and client as to remuneration are now valid, 33 & 34 Vict. c. 28, ss. 4-15, if not in the nature of champerty, s. 11 : *they cannot be sued upon, Init may l)e enforced or set aside in a discretionary manner on motion or petition, ss. 8, 9. See Rees v. Williams (1875) L. K. 10 Ex. 200, 44 L. J. Ex. 116. A promise to charge no costs at all in the event of losing the action is good apart from the statute, and is not touched by s. 11. Jennings v. Johnson (1873) L. R. 8 C. P. 425. As to non-contentious business, this Act is superseded by the Solicitors' Eemuneration Act, 1881 (44 & 45 Vict. c. 44). Spirits, &c. (sale of). *In small quantities. 24 Geo. 2, c. 40, s. 12 (Tippling Act) ; 25 & 26 Vict. c. 38; 51 & 52 Vict. c. 43, s. 182. To steerage passengers on ship during voyage, 57 & 58 Vict. c. 60, s. 326. Spirits (methylated). As to making, warehousing, sale, &c. : 52 & 53 Vict. c. 42, Part iv. (and several later Acts). Sunday. Work in ordinary callings by tradesmen, &c., and public sales by any person on Sunday forbidden, 29 Car. 2. c. 7. Theatres. 6 & 7 Vict. c. 68 (licences; examination of plavs) ; 35 & 36 Vict. c. 94, s. 72, 37 & 38 Vict. c. 69, s. 7, 43 & 44 Vict, c. 20, s. 43 (5) (sale of liquors) ; 42 & 43 Vict. c. 34; 57 & 58 Vict. c. 41, ss. 2, 3; 60 & 61 Vict. c. 52 (performances by children). Tobacco. Growing tobacco is forbidden by 12 Car. 2, c. 34, 1 & 2 Wm. 4, c. 13 (extending the prohibition to U. K.) : and the tol)acco trade is further regulated by a great number of Customs and Excise Acts. *Trade Union 'Contracts. 34 & 35 Vict. c. 31, s. 4. Usunj. The various statutes which fixed (with sundry exceptions) a maximum rate of lawful interest were all repealed by 17 & 18 Vict, c. 90. *As to securities given after re])eal of usury laws for money lent 711] on usurious terms before the repeal, Flight v. Reed *(1863) 1 H. & C. 703, 32 L. J. Ex. 265. The Money-lenders Act, 1900 (63 & 64 Vict. c. 51), has a different kind of operation, see p. *631, above. Veterinary Surgeons. 44 & 45 Vict. c. 62, 63 & 64 Vict. c. 24. ^yagers. 8 & 9 Vict. c. 109, 55 Vict. c. 9 (this Act is not retro- spective; K7iight v. Lee [1893] 1 Q. B. 41, 62 L. J. Q. B. 28) ; and see Tatam v. Reeve [1893] 1 Q. B. 44, 62 L. J. Q. B. 30, supra, p. *300. As to the extent of the exceptions. Parsons v. Alexander (1855) 5 E. & B. 263, 24 L. J. Q. B. 277; Coomhes v. Dihhle (1866) L. "R. 1 Ex. 248, 35 L. J. Ex. 167; Diggle v. Higgs (1877) 2 Ex. Div. 422, 46 L. J. Ex. 721; Trimble v. Hill (appeal to J. C. from New S. Wales on colonial statute in same terms), 5 App. Ca. 342, 49 L. J. BEACTON ON" FUNDAMENTAL ERROR. 913 P. C. 49. Forliearance of proceedings to enforce payment of racing debts by purely conventional sanctions is not an unlawful considera- tion : qu. whether or not a good consideration; Buhh v. Yelverton (1870) L. E. 9 Eq. 471, 39 L. J. Ch. 428. Wages. Payment otherwise than in money forbidden, 1 & 2 Wm. 4, c. 37 (Truck Act, 1831), to workmen as defined by 38 & 39 Vict. c. 90, s. 10 (see 50 & 51 Vict. c. 46). Cutis v. Ward (1867) L. R. 2 Q. B. 357, 36 L. J. Q. B. 161; see generally, 50 & 51 Vict. c. 46, and 59 & 60 Vict. c. 44. The stoppage of wages for frame rents, &c., in the hosiery manufacture is forbidden, and all contracts to stop wages and contracts for frame rents and charges are made illegal, null and void, by 37 & 38 Vict. c. 48. See WilUs v. Thorp (1875) L. R. 10 Q. B. 383, 44 L. J. Q. B. 137; Smith v. Walton (1877) 3 C. P. D. 109, 47 L. J. M. C. 45. Weights and Measures. Standards defined, and use of other weights and measures forbidden : 41 & 42 Vict. c. 49 ; 52 & 53 Vict. c. 42, s. 29. The use of the metric system is legalized by 60 & 61 Vict. c. 46. Sales by customary weights or measures which are well known multiples of standard weight or measure are not unlawful : Hughes V. I-hmphreys (1854) 3 E. & B. 954. 23 L. J. Q. B. 356; Jones v. Giles (1854) 10 Ex. 119, 23 L. J. Ex. 292. Note H. (p. *498). Bracton on Fundamental Error. De acquirendo rerum domino, fo. 15 h, 16: — "Item non valet donatio, nisi tarn dantis quam accipientis concurrat mutuus con- sensus et voluntas, scilicet quod donator habeat animum donandi et *donatariu3 animum recipiendi. Xuda enim donatio (z) et [712 nuda pactio non obligant aliquem nee faciant aliquem debitorem; ut si dicam. Do tibi talem rem, et non habeam (a) animum donandi nee tradendi nee a traditione incipiam, non valet, ut si dicam, Do tibi istam rem, et illam nolim (h) tradere vel (h) sustinere quod illam tecum feras vel arhorem datam succidas, non valet donatio quia donator plene non consentit. Item oportet quod non sit error in re data, quia si donator senserit de una re et donatarius de alia, non valet donatio propter dissensum: et idem erit si dissentio fiat in genere, numero, et quantitate. . . . [Then follow instances.] Et in fine notandum quod si in corpus quod traditur sit consensum, non nocet, quamvis circa causam dandi atque recipiendi sit dis- sentio : ut si pecuniam numeratam tibi tradam, vel quid tale, et tu eam quasi creditam (c) accipias, constat ad te proprietatem transire." {z) ratio MS. Hobhouse, Lincoln's 1878. who also gives by a misprint, Inn. and translates, tall for tale immedi- (rr) hahuero MS. Hobh. ntely above. (See on the fjeneral (h) MS. Hobh.: edd. nolui, et. character of this edition " Tlie Text (e) Traditam ed. 1509, followed of Bracton." by Prof. Paul Vinoofra- without remark by Sir T. Twiss, doff, L. Q. R. i. 189.) But creditam 58 914 APPENDIX. XoTE I. (p. *520). Mistake in ^yiUs^'^ Properly speaking, there is no jurisdiction in any court to rectify a will on the ground of mistake. The Court of Probate may reject words of which the testator is proved to have been ignorant, whether inserted by the fraud or by the mistake of the person who prepared the will (d). But it has no power to insert words (e) or otherwise remedy a mistake "by modifying the language used by the draughts- man and adopted by the testator so as to make it express the supposed intention of the testator. . . . Such a mode of dealing with wills 713] would lead to the most dangerous consequences, *for it would convert the Court of Probate into a court of construction of a very- peculiar kind, whose duty it would be to shape the will into conformity with the supposed intentions of the testator" (/). Exactly the same rule has been laid down in equity (g).^^ The cases in which it is said that the Court will interfere to correct mistakes in wills may be classified tlius : 1. Cases purely of construction according to the general intention collected from the will itself (h). 2. Cases of equivocal description, of words used in a special habitual sense, or of a wrongly given name which may be corrected by a sufficient description (i). 3. Cases of dispositions made on what is called a false cause (A:),^" i.e., on the mistaken assumption of a particular state of facts exist- ing, except on which assumption the disjiosition would not have been is the reading of a majority of good (f) Harter v. Barter (1873) L. R. MSS. (Lincoln's Inn, Camb. Univ., 3 P. & D. 11, 21, 44 L. J. P. 1, Brit. Mus., Bibl. Nat. Paris j and is following Guardlwuse v. Blackburn evidently required by the sense. (ISOfi) L. R. 1 P. & D. 109, 35 L. J. Bracton is quoting from the Digest, P. 110. 41. 1. de acq. rer. dom. 36: cp. Giiter- (<;) Xeirhiirgh y. Neicburgh (1820) bock, Henr. de Bracton, p. 8.5, who 5 Madd. 304. assumed, without cause, as the MSS. ( h ) See Hawkins on Construction now show, that Bracton misunder- of Wills, Introduction. stood the passage. The corruption, (i) Xot only an equivocal name however, is an easy and early one. may be explained, but a name which (d) E. g. Morrell v. Morrell, 7 P. applies to only one person -nay be D. 68, 51 L. J. P. 49. followins Ful- corrected by a description sufficiently ton V. Andreio (1875) L. R. 7 H. L. showing that another person is in- 448, 44 L. J. P. 17. tended': Charter v. Charter (1874) L. (e) In the goods of Schott [1901] R. 7 H. L. 364. P. 190, 70 L. J. P. 46. {k) (Jamplell v. French (1797) 3 Ves. 321, 4 R. R. 5. ♦ 14 See 38 Am. L. Reg. (X. S.) 425. ifi Willis ;•. .Tenkiiis. .-50 da. 107: "ecker r. Becker. 121 111. 341: Chambers r. Watson. 56 In. 670: Schlottman r. Hoffman, 73 Miss. 188; Lyon v. Lvon, 90 X. C. 4.39; Sherwood v. Sherwood. 45 Wis. 3'57. 16 Mordocai r. Boylan. 6 Jones Eq. 305: Dunham r. Averill. 45 Conn. 61, 80; Hayes' Ex'rs f\ Hayes. 21 X. J. Eq. 265: Gifford v. Dyer. 2 R. T. 99. But equity will not relieve in case of an executed gift inter vivos made under the influence of such a mistake. Pickslav v. Starr, 149 X. Y. 432. MAKING REPRESENTATIONS GOOD. 915 made. These are analogous to the cases of contract governed by Couturier v. Hastie (I) : and just as in those cases, the expressed intention is treated as having been dependent on a condition which has failed. But the true view of all these cases appears to be not that the words are corrected, but that the intention when clearly ascertained is carried out notwithstanding the apparent difficulty caused by the particular words. Note K. (p. *525). On the supposed equitable doctrine of " making representations good." Original statement in Hammersley v. De Beil. This once frequently al- leged head of equity, in so far as it purports to establish any rule or principle apart from the ordinary rules as to the formation of con- tracts on the one hand, and the principle of estoppel by assertion as to existing facts on the other, is now known to be imaginar}-. In the principal class of cases the " rcpre*sentation " is of an inten- [714 tion to make a provision by will for persons about to marry, in reliance on which representation the marriage takes place. The lead- ing authority is Hammersley v. De Beil (m), decided by the House of Lords in 1845 on appeal from the Court of Chancery. In the Court below (/i) Lord Cottenham had laid down the proposition that " a representation made by one party for the purpose of influencing the conduct of the other party, and acted on by him, will in general be sufficient to entitle him to the assistance of the Court for the pur- pose of realizing such representation." This appears to be the source of all the similar statements which have since been made (o). Taken with its context, however, it need not mean more than that an ex- change of proposals and statements by which the conduct of parties is determined may, as containing all the requisites of a good agree- ment, amount to a contract, though not to a formal contract. To Mr. Justice Stephen Lord Cottenham's words appeared " to mean only that contracts of this nature may be made like other contracts by informal documents, or partly by documents and partly by con- duct "(p). And in this sense the rule seems to have been understood in the House of Lords both in the same and in subsequent cases. Lord Brougham and Lord Campbell speak of the transaction in plain terms as a contract. In the Eolls Court it had also been dealt with on that footing (q). Still more pointed is the remark made by Lord St. (/) (185G) 5 H. L. C. 073. 25 L. J. ent class and for a different purpose. Ex. 253. Supra, pp. *420, *488. See Evans v. Biclcncll (1801) (5 Ves. (m) (1845) IS CI. & F. 45. 174, 5 K. R. 245. (n) 12 CI. & F. at p. 62. (p) Alderson v. Maddison (1880) (o) The turn of language is in 5 Ex. D. 203. 200, 50 L. J. Q. B. 466. itself not novel. It seems to be (r/) Nom. De Beil v. Thomson modelled on that which had long be- (1841) 3 Beav. 469. fore been used in cases of a differ- 91C APPENDIX. Leonards in 1851: — "Was it merely a representation in Hammersley V. Ve Beil f Was it not a proposal with a condition which, being ac- cepted, was equivalent to a contract?'' (?•). In the terms of the In- dian Contract Act, it was the case of a proposal accepted by the performance of the conditions. The statement " I will leave you 10,000/. by my will, if you marry A.," if made and acted on as a promise, becomes a binding contract (the marriage undertaken on the faith of that promise being the consideration), and so docs a state- ment in less plain language which amounts to the same thing. On the other hand the statement " If you marry A. I think, as at present advised, I shall leave you 10,000/." is not a promise and cannot be- come a contract : neither can it act as an estoppel, for it cannot matter 715] to the other party's ^interest whether the statement of an inten- tion which may be revoked at any time is at the moment true or false. And the same is true of any less explicit statement which is held on its fair construction to amount to this and no more. Such was the result of the case where Lord St. Leonards put the question just cited (s). And in that case the true doctrine was again distinctly affirmed by Lord Cranworth {t). " By what words are you to define whether a party has entered into an engagement as distinct from a contract, but which becomes a contract by another person acting upon it ? Where a man engages to do a particular thing, he must do it; that is a contract; but where there are no direct words of contract, the question must be, what has he done? He has made a contract, or he has not: in the former case he must fulfil his contract; in the latter there is nothing that he is bound to fulfil." Again : " There is no middle term, no tertium quid between a representation so made as to be effective for such a purpose, and being effective for it, and a contract: they are identi- cal." 17 He proceeded to comment on Hammersley v, De Beil, and to ex- press a decided opinion that the language there used by Lord Cotten- ham was not meant to support, and did not support, the notion that words or conduct not amounting to a true contract may create an equitaljle obligation which has the same effect. " The only distinc- tion I understand is this, that some words which would not amount to a contract in one transaction may possibly be held to do so in another." In the case of Jorden v. Money (w)/^ which came before the House of Lords some months later, it was held, first, that the statement there relied on as binding could not work an estoppel, be- cause it was a statement not of fact but of intention ; secondly, that on the evidence it did not amount to a promise, and therefore could (r) Maunsell v. Hedges White {t) At pp. 1055-6. (1854) 4 H. L. C. at p. 1051; cp. (n) (1854) 5 H. L. C. 185, 23 L. J. p. 1059. Ch. 865. A pretty full summary is (s) Maunsell v. Hedges White criven by Stephen J. 5 Ex. D. at p. (1854) 4 H. L. C. 1039. 301. 17 Ace. Knowlton v. Keenan, 146 Mass. 86. 18 Followed in Chadwick v. Manning, [1896] A. C. 231. MAKIXG REPRESEXTATIOXS GOOD. 917 not be binding as a contract. Lord St. Leonards dissented both on the evidence and on the law. His opinion seems on the whole to come to this : " My inference from all the facts is that this statement was a promise : but if not, I say it is available by way of estoppel, for I deny the existence of any rule that equitable estoppel can be by statement of fact only and not of intention." On this point, however, the opinion of the majority (Lord Cranworth and Lord Brougham) is conclusive (x). * Cases in Court of Chancery — Opinion of Stuart V.-C. In a much [716 earlier case of the same class before Lord Eldon (?/) the language used is indecisive : " arrangement " and " engagement " seem pre- ferred to " agreement." In two later ones decided by Sir John Stuart (z), an informal statement or promise as to a settlement on a daughters marriage, and an informal promise to leave property by will to an attendant as recompense for services, were held to be enforceable. The Vice-Chancellor certainly seems to have adopted the opinion that a " representation " short of contract had somehow a binding force. He appears further to have held that, inasmuch aa these were not properly cases of contract, it was immaterial to con- sider whether the Statute of Frauds applied to them, and to have thought that the opinion of Lord Cranworth in Jorden. v. Money was inconsistent with the decision in Ilammersley v. De Beil {a). But these opinions are inconsistent with the true meaning and effect of the cases in the House of Lords which have already been cited: and one of them is now expressly overruled {h). Later judicial ex- pressions are to be found which in some degree countenance them; but these have been, without exception, unnecessary for the decision of the cases in which they occurred. It is remarkable that the au- (x) And see Mr. Justice Stephen's fact. And thus the decision may criticism, 5 Ex. D. at p. 303. have been right on the ground of (y) Liiders v. Anstey (1799) 4 Ves. estoppel. But it is far from easy to 501, 4 R. R. 276. discover on -what ground it really {z) Prole V. Hoady (1859) 2 Giff. proceeded. The case Avent to the Ap- 1; Loffus V. Maw (1862) 3 Gfff. 592 peal Court, but was compromised: (18G2). In Loffus v. Maw there is a see 1 Ch. 145. The still later case of suggestion that the "representation" f^kidmore v. Bradford (1809) L. R. 8 affects the specific property as an Eq. 134, decided by the same judge in equitable charge. 1869, may be and has been regarded (a) Loffus V. Maw (1862) 3 Giff. as a case of true contract: Fry on at pp. 603-4. In Prole v. Soady, a Specific Performance, § 314, pp. 141, strange and entangled case, no point 142, 3rd ed. ■was made on the Statute of Frauds. (l) Loffus v. Maio (18621 is clearly But there it appears to have been disapproved b.v Lord Selborne and established as a fact that the wife's Lord O'Hagan in Maddison v. Alder- father represented to the intended son (1883) 8 App. Ca. at pp. 473, 483. husband, an Englishman, that a cer- Cf. Coles v. Pilkington (1874) L. R. tain trust disposition of Scotch land 19 Eq. 174. see at p. 178, 44 L. ,J. Ch. in the proper Scottish form was ir- 381 ; it is now enough to say that it revocable. This was. as regards the was decided by ^Nlalins V.-C. on the person to whom it was made, a rep- authority of Loffus x. Maw. which, if Tf^ontation of foreign law, and there- possible, it exceeds in audacity, fore equivalent to a representation of 918 APPENDIX. thoritative explanation of Hammersley v. De Beil (c) given in Maun" sell V. Hedges ^^ll^te (d) has in almost all the recent cases been left unnoticed. Later cases of same class. Coverdale v. Eastwood (1872) (e) was a 717] case of precisely the same *type as Hammersley v. De Bcil. Bacon V.-C. decided it on the ground that the transaction amounted to a contract, and so it was expressed in the decree. But he also tliought that there existed, and was applicable to the case in hand, " this larger principle, that where a man makes a representation to another, in consequence of which that other person contracts engage- ments, or alters his position, or is induced to do any other act which either is permitted by or sanctioned by the person making the rep- resentation, the latter cannot withdraw from the representation, but is bound by it conclusively." Later, in Dashwood v. Jermyiv (f) (1879), which was another marriage case, he held that the connection between the statement relied on as a promise and the marriage alleged to have taken place on the faith of it was not sufficiently made out. He stated the general rule thus : — " If a man makes a representation on the faith of which another man alters his position, enters into a ■deed, incurs an obligation, the man making it is bound to perform that representation, no matter what it is, whether it is for present payment or for the continuance of the payment of an annuity, or to make a provision by will. That in the eye of a Court of Equity is a contract, an engagement which the man making it is bound to per- form." This appears to qualify to some extent the dicta of the same judge in Coverdale v. Eastwood. Here we read no longer of two distinct kinds of obligation, by contract and by " representation," but of one kind of obligation, and that a contractual one, arising from the representations made by one party with the intent that they should be acted upon, and the conduct of the other who does act upon them. If the learned judge thought that the same facts might amount to a contract in equity and not at law, he was clearly mistaken. In Alderson v. Maddisoii (1880) (g) there was an agreement to leave property by will as a reward for services. Here Stephen J. set forth the view that it must be a contract or nothing; and he held that a contract was proved by the facts of the case. The decision was re- versed by the Court of Appeal on the ground that, the case being within the Statute of Frauds, there was no sufficient part perform- ance: and the same view was taken by the House of Lords. No en- couragement whatever, to say the least, was given to the doctrine of *' representation." Finally, in Be Ficl'us (h), Mdiere a faint attempt was made to revive it, Cozens-Hardy J. summarily disposed of it with a reference to the decisions in the House of Lords. ^^ (c) (1845) 12 CI. & F. 45. (q) 5 Ex. D. 203. 7 Q. B. Div. 174, id) (1854) 4 H. L. C. 1039. 8 App. Ca. 407, .50 L. J. Q. B. 466. ie) L. R. 15 Eq. 121, 42 L. J. Ch. (h) [1900] 1 Ch. 331, 334, 69 L. J. 118. Ch. 161. if) (1879) 12 Ch. D. 776. 1" Anothpr class of cases which is hard to distinguish in principle is com- posed of cases where a promisor promises without consideration to convey MAKIXG REPRESENTATIONS GOOD. 919 * Cases of collateral " representations " inducing contracts. So far [718 ihe authorities as to direct enforcement of " representations." We do not count among them Piggott v. Stratton (i), decided by the Court of Appeal in 1859, in which Lord Campbell incidentally took a minimizing view of the effect of Jorden v. Money (/). That case, so far as it did not proceed on express covenant, was one of equitable estoppel. Mills v. Fox (1887) (k) was also decided expressly on the ground of estoppel by representation of fact. The representation was not of intention at all, but that a certain state of facts with its legal consequences existed and would continue to exist. But another class of decisions now calls for mention. These lay down, or seem to lay down, a rule to the effect that where a contract has been entered into upon the representations of one party that he will do something mate- rial to the other party's interest under it, and he does not make good that representation, he cannot enforce specific performance of the contract : and in one case the contract has even been set aside at the suit of the party misled. It is difficult in these cases to see why the fio-called representation does not amount to a collateral agreement, or even to a term in the principal contrac-t itself. In the first set of cases, where specific performance was refused, a vendor or lessor had represented that he would do something for the purchaser's or lessee's benefit, either in the way of repair or improvement on the property itself (/), or by executing works on adjoining property as part of a general plan (m). In those cases it has been thought immaterial, since the remedy of specific performance is " not matter of absolute right," to consider whether the collateral " independent engagement " could or could not have been sued on as a contract or warranty (n). In the one case which goes farther the contract was a partial re- insurance eifected by one insurance society (A.) with another (B.) for one-third of the original risk, the secretary of society A. stating, when he proposed the re-insurance, that one-third was to be re-insured in like manner with another office C, and the remaining one-third retained by A., the first insurers. This last one-third was afterwards xe-insured by A. with C. without communication with B. It was Iield that *society B. was entitled to set aside the policy of re- [719 insurance given by it on the faith that society A. would retain part of the liability. And it was said to make no difference that such an intention was really entertained at the time : for the change of inten- (t) 1 D. F. & J. 33, 29 L. J. Ch. 1. {k) 37 Ch. D. 153. 57 L. J. Ch. 56. (;■) At p. 51. But Lord Selborne (l) Lamare v. Dixon (1873) L. R. seems to adopt the opinion of Lord 6 H. L. 414, 43 L. J. Ch. 203. Cranworth to its full extent in Citi- {in) Beaumont v. Dukes (1822) Jac. zens' Bank of Loitisiana v. First Na- 422: 3Ii/ers v. Watso7i (1851) 1 Sim. tioval Bank of Neic Orleans (1873) N. S. 523. L. R. 6 H. L. at p. 360, 43 L. J. Ch. (n) Lord Cranworth, 1 Sim. N. S. 269. 529; Lord Cairns, L. R. 6 H. L. 428. land, and on the faith of the promise the promisee makes improvements. Under such circumstances the promise is generally enforced. Pomeroy Eq. Jur., § 1294 ; Ames Cas. Eq. Jur. I. 300. 920 APPENDIX. tion ought to have been communicated. " If a person makes a repre- sentation by which he induces another to take a particular course, and the circumstances are afterwards altered to the knowledge of the party making the representation, but not to the knowledge of the party to whom the representation is made, and are so altered that the altera- tion of the circumstances may affect the course of conduct which may be pursued by the party to whom the representation is made, it is the imperative duty of the party who has made the representation to communicate to the party to whom the representation has been made the alteration of those circumstances" (o). This case, decided by the Lords Justices in 1864, is that which gives rise to most difficulty. Xo reason appears why the retaining of the specified part of the risk by the re-insuring office sliould not have been deemed a term or condition of the contract (p). Indeed it seems to have been an integral part of the proposal, and evidence was offered that by the constant usage of insurance offices it was so understood. The judgments, however, certainly do not proceed on that footing. Possibly it might be said that the representation in this case, being of something to be done not in a more or less distant future, but at the same time with and as part of the proposed transaction, was in the nature of a representation of fact. It might be put thus : " We are re-insuring one-third with C. ; one-third of the risk we keep ; will you, B., take the other third ? " And thus put, it might be regarded as an alternative case of contract or estoppel, in which (for some reason not evident from the report) the Court preferred the less simple course. In the other cases it is by no means clear that the existence of a true collateral agreement or warranty is excluded; in at least one similar case (q) the question is treated as one of agreement entirely. In Lamare v. Dixon (r), which came before the House of Lords in 1873, the principal agreement was for a lease of cellars to be used as wine vaults. During the negotiations the lessor assured the lessee either that he had already taken, or that he would forthwith 720] *take, sufficient measures to keep the cellars dry and fit for a wine merchant's use. It seems most natural to regard this as a war- ranty : still, so far as it related to anything already done, it might be regarded as a positive statement of fact. " You will find the cellars dry," or any speech to that effect, might mean either : " I undertake to make the cellars dry," or, " That has been done which is known by competent experience to be sufficient to ensure dryness." The line between warranty and estoppel is here a fine one, and perhaps not worth drawing, but still it is possible to draw it: and when Lord Cairns said "■ I quite agree that this representation is not a guarantie," (o) Traill v. Barincf (1864) 4 D. ( p) Cp. Barnard v. Faler [1S9.3] 1 J. & S. 318, 329, per Turner, L. J. ap- Q. B. 340, (i2 L. J. Q. B. 159. C. A. proved by Fry L.J., Scottish Pciro- (q) Peacock v. Penson (1848) 11 Innn Co. (1883) 23 Ch. Div. at p. Beav. 355. 438. ir) L. E. 6 H. L. 414, 43 L. J. Ch. 203. MAKING REPRESENTATIONS GOOD. 921 he may have meant that he preferred to regard it as a statement of fact operative by way of estoppeh There certainly does run through these cases, however, the idea that specific performance is so far a discretionary remedy that it may be refused to a party seeking it on grounds which do not affect his legal rights under the contract. But it seems a tenable position that equity judges have taken a needlessly narrow view of what is a binding agreement on the principles of the common law (s). In fact agreements collateral to leases, and not in writing, have of late years been enforced without doubt (t). In all these cases the facts appear un distinguishable in their character from those which were treated in the Court of Chancery as establish- ing a right to relief on the ground of " representation.*' Cases where false representation gives, as wrong, a substantive right of action. There remains a class of cases in equity in which it has been held that a statement made to a person intended to act upon it by one who knows it to be false, or is recklessly ignorant whether it is true or false, may create in the person who acts on it to his injury a substantive right to compensation. Here the statement is a wrong, and the remedy is precisely analogous to, and before the Judicature Acts was concurrent with, that which was given at law by the action of deceit, or action on the case in the nature of an action of deceit (u). *It is worth remark that not unfrequently a difficulty occurs [72V in drawing the line between contract or warranty and fraud, as we have already seen that there does between contract and estoppel. " Most of the cases . . . when looked at, if they do not absolutely amount to contract, come uncommonly near it. . . . If you choose to say, and say without inquiry, ' I warrant that,' that is a contract. If you say ' I know it,' and if you say that in order to save the trouble of inquiring, that is a false representation — you are saying what is false to induce them to act upon it" (x). Thus cases are possible, as has been mentioned in the text, in which the legal effect of the facts may equally be considered as warranty, estoppel, or duty ex delicto. And since equity judges, dealing with facts and law together, were not bound to distinguish with precision, and often did not distin- guish, on which of two or more possible grounds they rested their decisions, it is not surprising that a good deal of ambiguity has gathered round the subjects discussed in this note. (.s) It would be curious to know in order). The fjround taken as to the what proportion of cases under the Statute of Frauds is that the col- old practice a party left by the Court lateral agreement is not a " contract of Chancery, as the phrase was. to or sale of lands," &c. : the effect of make what he could of it at law, de- the Statute being as it were ex- rived substantial or any profit from hausted by the principal contract; that liberty. with which the collateral one raust of (f) Morgan v. Griffith (1871) L. R. course be consistent. 6 Ex. 70, 40 L. J. Ex. 46; Erskinc (\i) See for details the section on V. Adeane (1873) L. R. 8 Ch. 756, 42 Deceit in Chap. viii. of mv work on L. J. Ch. 835; Angell v. Dule ( 1875) the Law of Torts. L. R. 10 Q. B. 174, 44 L. J. Q. B. 78; («■) Lord Blackburn in Broicniie v. De Lassalle v. Guildford [1901] 2 Camphell (ISSO) (Sc.) 5 App. Ca. at K. B. 215, 70 L. J. K. B. 533. C. A. p. 952: the whole passage should be (warranty of drains being in good studied. 922 APPENDIX. Note L. (p. *622). French law on " inofficioiis " gifts and captation. French authorities before Revolution. French Jurisprudence has some- times been cited in our Courts as affording useful analogies in cases where it was sought to set aside gifts on the ground of undue in- fluence, especially spiritual influence. (Qi^uvres d'Aguesseau, 1. 284, 5. 514, ed. 1819; Lyon v. Home, L. R. 6 Eq, 571.) Without denying the instructiveness of the comparison, it may be pointed out that these French cases proceeded on rather different grounds. Charitable be- quests in general were unfavourably looked on as being " inofficious " towards the natural successors. This principle is strongly brought out by D'Aguesseau in the case of the Religieuses clu Saint-Sacrement ((Euvres, toI. 1. p. 295) :— " Ces dispositions universelles, contraires aux droits du sang et de la nature, qui tendent a frustrer les heritiers d'une succession legitime, sont en elles-memes peu favorables; non que ce seul moyen soit peut-etre suffisant pour aneantir un tel legs ; mais lorsqu'il est soutenu par les circonstances du fait . . . lorsque la donation 722] est immense, qu'elle est excessive, qu'elle renferme *toute la succession . . . dans toutes ces circonstances la justice s'est toujours elevee contre ces actes odieux; elle a pris les heritiers sous sa protection ; elle a casse ces donations inofflcieuses, excessives et contraires a I'utilite publique." Modern law of captation. In modern French practice a will may be set aside for captation or suggestion. But, as with us. the burden of proof is on the objector to show that the testator's will was not free, and something amounting to fraudulent practice must be proved. " La suggestion ne saurait etre separee," says Troplong, " d'un dol subversif de la libre volonte du testateur ... On a toujours ete tres difficile en France a admettre la preuve de la suggestion et da la captation." (Droit civil explique, Des donations entre-vifs et des testaments, art. 492.) On the other hand the Code Civil (art. 907, 909-911) contains express and severe restrictions on dispositions by wards in favour of their guardians, and by persons in their last illness in favour of their medical or spiritual advisers. These apply alike to wills and to gifts inter vivos. INDEX. ACCEPTANCE: auctioneer's, 15. by post, tliough never delivered, eflfectual, 39. certainty, necessity of, 43; 48; 52. communication of, 21, n. 21; 35. means of communication, 36. correspondence, acceptance of contract made by, 37 ; 39, n. 42. cross proposal is not, 5, n. 2. date of proposal, acceptance will not relate back to, 41. deed, necessity of acceptance for, 6, n. 3; 55. double, of same proposal, 33. English cases, theories in, 38. express or tacit, 9; 52. insufficient, examples of, 44. knowledge of oflTer necessary, 14, n. 12. of bill of exchange by parol, 25, n. 24. of proposal, general but not universal form of agreement, 5. eflfect of, where proposal misunderstood, 599, 601. made by advertisement, 13. performance of conditions of proposal, 13. special conditions, acceptance by receiving document with, 53. acceptance when implied, 54. sufficient, examples of, 45. unqualified, must be, 43. varying from offer rejects offer, 43, n. 47. when in time, 20. with immaterial or ambiguous addition, 45. ACCIDENT: destroying subject-matter of contract, effect of, 527; 630; 53fl. ACCORD AND SATISFACTION: accord, as a contract, 829. may be taken as satisfaction, 834. unexecuted, does not discharge contract, at law, 831. but equitable relief granted, 833. consideration for, 210; 829. definition of, 828. discharge of contract by, 210; 828. . debts of record by, 836. sealed contracts by, 835. infant's, avoidance of, 68, n. 14. satisfaction of a disputed claim by sending check, 838. received from a third person, 593; 840. requisites of, 837. [923] 934 INDEX. ACCOUNT: action of, 153. ACCOUNT STATED: with infant, not void but voidable, 66. ACKNOWLEDGMENT of debt barred by Statute of Limitation, 184; 201; 777. See LIMITATION. ACQUIESCENCE: estoppel by, 791. knowledge essential to, 569. lapse of time as evidence of, 721; 732. rescission of contract, acquiescence as bar to, 721. undue influence, acquiescence in cases of, 769. "ACT OF GOD": meaning of: no general definition possible, 535. ACTION: assignment to creditor of bankrupt's right of, held justifiable, 456, n. (k) . forms of, early classification of, 151. ADMINISTRATORS. See EXECUTORS. ADOPTION: of forged signature, 443; 856, n. 18. of void agreement, 621. ADVERTISEMENT: contract by, 13; 21. revocation of offer by, 23. such contracts not exempt from Statute of Frauds, 25. AFFIRMANCE: of voidable contract. See ELECTION; RESCISSION. AGENT: agreement by tliird party to i)ay commission for influence of, on principal is void, 389, n. 34. alteration by unauthorized, 853. appointment of, requires no special formality, 105. authority, implied warranty of, 119. of, its constitution and end, 105. professed agent without, position of, 116. revocation of, 105. to sell land need not be in writing, 174, n. 15. authorized agent known to be such, contract with, 107. not known to be such, contract with, 113. bill of exchange, acceptance by agent, principal bound though acceptance not in principal's name, 110. contract of, is contract of principal, 225; 228. contracts made by, 106. corporation can generally only act by, 128. liable for wrongs of, 129; 700. death of principal, effect of, on subsequent contracts of agent before notice, 106. deceit of, principal liable for, 701. INDEX, 925 AGENT — Continued : deed, executed by agent, 109. election to sue principal or agent, 116. fraud of, liability of principal for, 129; 700. personal, agent always liable for, 703. general theory of agency, 58; 105. government, 112. illegality, collateral, in transaction, does not discharge agent from ac- counting to principal, 498. knowledge of, is knowledge of principal, 107, n. (i). liability, exclusion or limitation of, when he contracts in his own name, 111. money wrongfully paid, may be recovered from, 731. negligence, agent may not profit by his own, 391. negotiable instruments executed by, 110. personal liability of, 108. principal resident in a foreign country, 109. professed agent: when he may disclose himself as real principal, 123. without authority, position of, where responsible principal named, 116. without authority, position of, wdiere responsible principal not named, 121. profits, agent entitled to none bej'ond compensation, 390. ratification, 107; 121. And see RATIFICATION. rectification for mistake when one party acts as the agent for the other, 641. representation of, when principal liable for, 699. revocation of authority: methods of withdrawal, 106. rights of other contracting party, 115. sale to or purchase from himself, 387. secret conmiissions, agent for sale or purchase must not accept, from other party, 387. secret dealings by, on his own account in matter of agency, 386. sub-agent not agent of principal, 596. undisclosed principal, rights of, 113. wrong, agent always liable for his own, 703. AGREEMENT: analysis of, as accepted proposal, 6. certainty of terms, necessity of, 48. collateral, CA'idence of, 313. consent, apparent, but not real and no contract, 582. condition affecting validity of, 561. And see MISTAKE. how^ expressed, 5. defined. 2; 3. definition of, Savigny's, 881. election to adopt originally void agreement, 621. 926 INDEX. AGREEMENT — Continued: evidence to explain particular terms in agreement, 313. whether a document is or is not record of, 312. illusory promise, effect of, 49; 50, n. 58; 197, n. 10. imperfect obligation, agreements of, 772. impossible, 518. See IMPOSSIBLE AGREEMENTS. informal, ante-nuptial, how far made binding by post-nuptial settlement, 792. effect of part performance, 790. execution of, may be good consideration or accord and satisfaction, 787. joking, no contract, 3, n. 1. lunatic, agreement of, not void but voidable, 100. parol, addition to or variation in terms of; effect as regards specific performance, C33. public policy, against, 421. And see PUBLIC POLICY. third person, agreement with, as subject of promise, 51. unlawful, 371. See UNLAWFUL AGREEMENTS, void and voidable, distinction between, 3 ; 8. AGREEMENTS OF IMPERFECT OBLIGATION: conflict between lex fori and lex contractus, 779; 784. general results as to, 810. their nature and effects, 772. ALIEN: enemies, disabled from suing here but not from contracting, 104. wife of, when she can contract as feme sole, 91. ALTERATION: agent's unauthorized, does not discharge contract, 854. assignment of altered contract, 866. authorized, 855. before execution of contract, 871. burden of proving, 873. contracts to which rule against, is applicable, 851. conveyances and covenants distinguished, 845. creditors' right when debtor destroys deed by, 849. discharge of contracts by, 845. equity gave no relief for, 847. evidence, admissibility of altered writings in, 873. how far rule against alteration is one of, 847; 865, n. 83; 868. excusable, when, 852. immaterial alterations, effect of, 859. Avhat are, 863. innocent, 854. material and immaterial. 859. mistake, alteration by, 853. mortgages, effect of alteration of note or bond, 870. INDEX. 927 ALTERATION — Continued : obligors, 854. pleading, 872. presumptions in regard to, 873. ratified, 856. restoration to original form, 858. separable part of document altered, 850. several obligors, of whom some assent to, 857. stranger, alteration by, 847; 848; 852. survival of debt when contract destroyed by, 868. voluntary destruction, effect of, 849. AMBIGUITY: corrected by recitals, 624, n. 82. effect of, in construction of document, 572 ; 599. ANNUITY: agreement to give, charged on land, implies personal covenant for repay- ment, 300. sale of, when life has expired, 613. ANTICIPATORY BREACH OF CONTRACT: eflFect of 355. And see RE- PUDIATION. APOTHECARIES: cannot recover charges unless properly qualified at time of services, 802. ARBITRATION: agreements for reference, how far valid, 445. arbitrator, can recover remuneration on express contract, 803. must follow authority, 879. authority revocable before award, 878. award, whether stranger can be bound by, 226. merger by arbitration and award, 877. prevention of performance of condition of, 550, n. 39. right of action may be conditional on award, 448. statutory arbitration, 880. ARTIFICIAL PERSON: nature of, 124. newspapers and journals, artificial personality ascribed to, 125. partnerships and other bodies treated as, by custom though not by law, 125. term not synonymous with "fictitious," 124, n. (s) . And see CORPORATION. ASSIGNMENT; assignee: rights of, under contract, 278. takes subject to equities, 284 ; cp. 294, n. 88. rule may be excluded by agreement, 287. attempts to oppose on ground of maintenance, 278. 928 INDEX. ASSIGNMENT — Continued : equitable, bill of exchange is not an, 894, n. (f). cheque is not, 2G7; 894, n. (/). of debt, 281. of altered contracts, 866. of Contract {ichich see), 278; 594; 906. of duties, 295. of pensions, &c., void, 440. of promised property to a third person as a defence, 323, n. 8. of rights, founded on personal confidence, 594. of salaries, 439. of shares, 296. successive, 283, n. 77. title by, 222. to creditor of bankrupt's right of action, 456, n. (k) . ASSUMPSIT: action of, its introduction, 154. implied detriment to plaintiflf, 189. ATTACHING CREDITOR. See CREDITOR. ATTORNEY. See AGENT; BARRISTER; SOLICITOR. AUCTION: agreements to refrain from bidding, 470, n. 36. sale by: contract on, formation of, 15; 17. deposit, recovery of, 669. misdescription ; general duty of vendor to give correct description, 669 ; 672. pufTer, eniplo^-ment of, 684. title, effect of special conditions as to, 671. trustee cannot purchase trust property at, 387, n. 30. without reserve, 18. AUCTIONEER: liability of. to purchaser, 109, n. (n). may sue for deposit in his own name, 109, n. 70. AWARD. See ARBITRATION. BAILMENT: deposit of goods at railway station, 53. without reward, consideration for, 193. BANKRUPTCY: anomalous effects of, on contractual rights, 229. bankrupt's right of action, assignment to creditor of, held justifiable, 456, n. {k). creditor's assent to discharge in, does not discharge surety, 384, n. creditor may petition though credit not expired, 707, n. 27. discharge in another state, 107, n. 66. INDEX. 929 BANKRUPTCY — Continued : infant, adjudication of, in bankruptcy, 86. loan obtained by, under pretence of full age, provable in, 86. laws, attempts to evade, 401. payment to trustee under mistake of law, 580. secret agreements with particular creditors void, 377 ; 380, BARRISTER: arbitrator, if acting as, may recover fees, 803. colonies, whether English rules apply in, 805. fees of, for advocacy, not recoverable from client, 803'. for non-litigious business, qu., 804. judicial notice of counsel's fees in taxing costs, 806. paid by client to solicitor, Avhether recoverable by counsel, 805. returning officer, may recover remuneration for acting as, 804. BATTLE: trial by, in action of debt, 150. BENEFICIARY: American decisions classified by states, 247; 256. building contract cases, 253. cannot sue in England, 232; 243. cestui que trust suing for enforcement of trust, 241. check, holder of, cannot sue bank, 267. creditor as, distinguished from sole, 242 ; 244. debt, contract to pay to, 242; 244; 255. defenses good against promisee, good against creditor, 271. devise as consideration of promise to pay, 252. general principles as to rights of, 228; 237. incidental, 277. mortgage, assumption of, 260. non- performance by promisor a good defence, 272. novations distinguished, 240. of insurance policy, 243, n. 26; 244; 246; 251. partner, assumption of liabilities of outgoing, 266. promisee, rights of, 268. right to sue both debtor and, 270. promisor, non-performance by, a good defence, 272 property receipt of as consideration of promise to pay, 252. rights of, distinguished from contract rights, 237. release as a defence, 273. rescission as a defence, 273. revocable agency distinguished, 238. seal, effect of, 276. sole, 242. Statute of Limitations bars right of, when, 267. statutory rules as to, 246. telegraph company cases, 254. "water company cases, 254. 59 930 INDEX. BILATERAL CONTRACTS: consideration, for, 201. definition of, 21, n. 21; 35, n. 40. dependent and independent promises in, 329. insolvency of one party to excuses the other, 323, n. 8; 354. name introduced in our law, 35, n. 40. with infant, 66, n. 12. BILL OF EXCHANGE: acceptance of, by agent in his own name, 110. must be in writing and signed, 168, cp. 25, n. 24. by parol, 25, n. 24. cheque is a, 292. drawn in hostile country in time of war, 429. equitable assignment, bill is not an, 894, n. (f) cp. 267. forged indorsement, confers no title on bond fide holder, 292; 569. indorser not a surety during currency of, 386 n. (t). infant's, not void but voidable, 66 ; 80, n. 25. negligence does not affect title of bo7id fide holder, 569. seal of company, whether equivalent to signature, 145; 293. unconditional order in writing, bill is an, 168. And see NEGOTIABLE INSTRUMENTS. BILL OF LADING: indorsement of, transfer of contract by, 298; 302. is not properly negotiable, 302. misdescription of goods in, effect of, 659. BILL OF SALE, 182. BOND: repudiation of, distinguished from case of other contracts, 356. condition, where illegal, obligation is void, 492. where impossible at time, obligation is absolute, 555. but subsequent impossibility is a discharge, 556. alternative conditions, where one impossible, 558. restrained by recitals, 624, n. 82. foreign government, bonds of, treated as negotiable instruments by English law, 293. merges simple contract, 874. statutes as to, 632, n. (r). And see SEAL. BOUNDARY: agreement to settle disputed, is not within Statute of Frauds, 175, n. 15. BRACTON: his theory of fundamental error, Note H., 913. INDEX. 931 BREACH OF CONTRACT: anticipatory, 355. And see REPUDIATION, in instalment contracts, 327. slight, Avill not discharge other party, 326, n. 9. whether necessary for rescission, 339. BROKERS: in wagering transactions, 406, n. 60 ; 407, n. 62. statutes affecting, 909. unlicensed, in city of London, cannot recover commission, 404. when may act for both parties, 388. BUILDING SOCIETY: infant may be member of, 72. but he may not borrow money from society on mortgage, 72. cannot claim and hold land purchased with society's money free from charge for money advanced, 74. CANCELLATION of instruments by courts of equity, 725. CANCELLATION AND SURRENDER: discharge of bills and notes by, 844. simple contracts, 844. specialties, 843. CARGO: sale of, when previously lost, 540. CARRIER: contracts of, 53. "CATCHING BARGAINS": on what terms borrower relieved, 762. rules of equity as to, 759. what are marks of, 760. with heirs and reversioners, 757. CAUSA: " consideration " not analogous to, 190. in Roman law of contract, 189. CHAMPERTY: agreements made abroad, whether rules against champerty apply to, 513. bargains to find means for litigation and share property recovered, 453.- definition of, 449. kinship does not justify, 461. lunacy, proceedings in, exceptional, 460. of party and his counsel in a suit is no defence to the suit, 452, n. 17. purchase of subject-matter of litigation, not in itself unlawful, 455. solicitor cannot purchase subject-matter of suit from client, 455. statute of Hen. VIII. against, 457. what amounts to, 451. 932 IXDEX. CHARTER. See DEED. CHARTER-PARTY: conditions in, 655, n. (z). express exceptions in, 542. liability of principal or agent on, 123. CHEQUE: effect of crossing Mitli words " not negotiable," 295. holder of, cannot sue bank, 267; 894, n. (/). ' is a bill of exchange, 292. sent as satisfaction of a disputed claim, 838. CHILDREN: custody of, agreements as to, 461; 512. right of, to enforce provisions for their benefit in settlements, 222; 231. CHOSE IN ACTION: early authorities on assignment of, Xote F., 906. why formerly not assignable, 278. And see ASSIGNMENT. CIVIL DEATH: meaning of, 91, n. (z). wife of person civilly dead can sue alone, 90. COERCION: and though circumstances do not amount to duress, 731. contracts entered into under, voidable in equity, 563. money paid under, recoverable, 730. COLLUSION: in conduct of proceedings against public policy, 444; 512. COMPANIES ACT, 1862: company under, cannot bind itself by contract for purposes foreign to the memorandum of association, 143; 902. COMPANIES ACT, 1900: provisions of, as to prospectuses, 676. COMPANY: bills and notes may now be under seal of, 144. Companies Act, 1900, G76. contract, executed, liability of company on, 166. implied, 168. statutory forms of, 167. summary of law as to, 168. tending to defeat purposes of incorporation, ISQ. debentures, transferable, negotiable if under seal of, 145. form of. 288. whether holder of, takes free from equities. 287. directors, acts of, not invalidated by mere irregularity, 136. INDEX. 933 COyiVAJHY — Continued: duty of, to state facts truly in prospectus, 549, sqq. powers of, limited by constitution of company, 136. and by principles of partnership, 136. registration of company, how far notice of limitation to third persons, 136. right of dissenting shareholders to restrain acts of, 134; 896. statements of, when company bound by, 702; 714. Directors' Liability Act, 1890, 677. estoppel, doctrine of, applicable to, 147. executed contract, right of company to sue on, though not originally bound, 166. maintenance, purchase of shares in order to sue company or directors at one's own risk, is not, 457. majority of shareholders, powers of, 136; 143. negotiable instruments, may now be under company's seal, 145. when comijany bound by, 145. objects of, as defined in memorandum of association must be strictly ad- hered to. 141. partnership rules, relation of, to law of, 134; 145. And see CORPORATION. powers of, limited by special purposes of incorporation, 133; 138. promoter, duty of, to company, 676. promoters' agreements, when company bound by, 225. prospectus. Company's Act, 1900, and Directors' Liability Act, 1890, as to, 676. duty of directors to state facts truly in, 674; 711. statements of, addressed only to original shareholders, 703. variance between meraorandiun and, 602. public, interest of, as investors, 140. ratification of irregular transaction by assent of shareholders, 137; 900. seal of, contracts formerly required to be under, 159. improper use of, 147. trading contracts, seal not necessary in, 161. transferable debentures under, negotiable, 145. whether equivalent to signature in case of bills and notes, 145; 293. shareholders cannot sanction acts outside scope of powers, 143. dissenting, rights of, 134; 896. majority, powers of, 136; 143. unanimity of, when necessary, 136; 143. shares, contract to take, not void, but only voidable on ground of error, 602. distinguishing numbers of, error in, not material, 602. repudiation of, when too late, 602; 713; 719. rescission of contract to take: misstatements in prospectus, 602; 674; 694. sale of, avoided by petition for winding-up unknown to parties, 613. 934 INDEX. COMPANY — Continued: shares — Continued: transfer of, 184; 296. invalid, where directors' consent obtained by fraud, 686. statutory powers, acts in excess of, 133; 138. unincorporated, power of, to sue by public officer, 236. transfer of shares in, 296. treated as corporation in America, 136, n. 13. winding-up, secret agreement to delay proceedings in, 445. shareholder cannot repudiate his shares after, 719. And see CORPORATION. COMPENSATION: for misdescription on sale of land, 663. ■ purchaser can recover after completion, 666. And see SPECIFIC PERFORMANCE. COMPOSITION: avoided by concealed preference, 378. money paid to purchase, may be recovered, 504. with creditors, consideration for, 212. COMPROMISE: consideration for, 214. mistake, of counsel, compromise arranged by, 603. mistake or oversight as to particular points of law cannot be set aside for, 577. of criminal proceedings, when lawful, 440. of election petition, void, 443. CONDITIONS: alternative, where one becomes impossible, 558. certificate of architect as, 289, n. 83. consideration distinguished, 215, n. 24. general, restrained by recitals, 624, n. 82. illegal, make bond void, 492. impossible conditions in bonds, treatment of, 555. or unnecessary, 554. of performance becoming lawful, 515. prevention of performance of excuses, 549, n 37. remedy, conditions precedent to, imposed by law, 782. representations amounting to, their nature and effect, 652. restraint of marriage, 465. satisfaction of promisor, 51, n. 47. special, on ticket, how far binding on person to whom it is issued, 53. stranger, conditions to be performed by, must be performed at obligor's peril, 523. ■warranties distinguished from, 652. INDEX. 935 CONDITIONS OF SALE: effect of, on right to compensation, 665. CONFESSOR AND PENITENT: presumption of undue influence in transactions between, 736; 746. CONFIRMATION: of infant's marriage settlement, 65. And see ACQUIESCENCE. CONFLICT OF LAWS: agreement to submit to suit in specified court, 446, n. 11. as to remedy for recovery of debt within Statute of Frauds, 782. of barred debt, 779. lawfulness of agreement, 506. change of law, effect of, 514. discharge in insolvency, 107, n. 66. domicil, effect of law of, on validity of marriage, 396. foreign law, how far admissible to decide lawfulness of agreement made abroad, 508. lex loci: by what local law the lawfulness of an agreement is determined, 506. of contract by correspondence, 886. marriage of domiciled British subjects, wherever celebrated, governed by English law, 396. requirement of stamp, how treated in foreign court, 433. revenue laws, how treated in foreign court, 431. CONSENT: proof of, 5. requisites of, for legal agreement, 3. to contract, questions affecting validity of, 561. ways of declaring, 5. And see MISTAKE. CONSIDERATION: abandonment of rights as, 215. adequacy not material, 193; 475. assumpsit, idea of consideration in action of, 189. bailment, gratuitous, consideration for, 193. burden of proving in equity, 217, n. 26. causa, " consideration " not analogous to, 194, cohabitation, illicit, if future, an unlawful consideration; if past, no consideration, 411. composition with creditors as, 212. ■ condition, distinguished, 215, n. 34. contingent, doubt as to, 188; 196. debt, action of, consideration in, 188. payment of as consideration, 204, n. 15; 205; 210. deed, voluntary, no specific performance of, in equity, 218. but evidence of consideration may be admitted, 218. 936 INDEX. CONSIDERATION — Continued: detinition, 185. detriment to promisee as basis of assumpsit, 189. discharge of contracts, how tar consideration required for, 210. See DIS- CHARGE. " Doctor and Student," consideration in, 190. duty, performance of, as, 203. equity, doctrine in, application to contracts under seal, 216. will not enforce incomplete gifts, 218. evidence, external, of, 218. evolution of tlie word, 188. execution of informal agreement as, 787. failure of, the true ground for recovering back compulsory payments,, 732. forbearance to sue as, 212. must be definite and of really disputed right, 213. gaming and money lent for betting, an illegal, 409. general character of, 8; 185. gift, imperfect, equity will not enforce, 218. gratuitous promises, 186. history of the doctrine of, 187. illicit cohabitation as, 411. illusory promise is not, 50, n. 58; 197, n. 10. immoral, where gift complete and irrevocable, 413. settlement on marriage with deceased wife's sister tre?;ted aS made on an, 413. inadequate, as evidence of fraud, 197; 749; 767. as ground for refusing specific performance, 752. infant's promise is sufficient for adults', 66, n. 12. moral, 198. mutual promises as, 201. past, ineffectual, 199. patent, invalid as, 194. promise must be definite, 203. to one who does not furnish the, 241. to perform existing duty, how far consideration, 203. unenforceable under Statute of Frauds, as, 788. quid pro quo, consideration analogous to, 190. rescission, consideration for, 815. restraint of trade, partial, consideration necessary for agreement in, 474. separation deed, consideration for agreement for, 416. subscriptions, how far supported by, 186, n, 3; 255. unlawful, makes whole agreement void, 48."?. variation of contracts, how far consideration required for, 212. A'oluntarj' agreement, no specific performance of, 217. even though imder seal, 217. wager, note given for, treated as being without, 407. INDEX. • 937 CONSTRUCTION: mistake as afl'ecting, 572; 579, n. 22. of contract favorable to validity favored, 375. not altered by mistake of parties, 572. of promise conditional upon satisfaction, 51, n. 59. peculiar rules of, in equity, 257; 625. recitals govern, when operative part ambiguous, 024, n. 82. restriction of general words, 025. rules of, general intent prevails, 317; 320. their auxiliary character, 317. stipulations as to time, in equity, 625. subsequent conduct of parties, as affecting, 572. And see INTERPRETATION; MISTAKE. CONTRACT: advertisement, legal theory of contract by, 13. performance of conditions of offer made by, 13, 21. Statute of Frauds, effect of, on contract by, 25. agreement to commit breach of, void, 376. alteration of, 845. ambiguous, 001. assignment of, 217; 594; 906. difficulties of assignee of ordinary contract, 290. equitable: notice to debtor, 281. free from equities, 288. subject to equities, meaning of, 284. bilateral, 13; 21, n. 21; 35, n. 40; 201; 323. bill of lading, indorsement of, transfers contract, 298; 302. cancellation of, 843. capacity of parties to, 57. communication may be indirect, 26. conclusion of, may be postponed until execution of formal instrument, 47. condition, implied, of life and health in contract for personal service, 543. conditional on performance being or remaining possible, 536. consideration for discharge or variation of, 210; 815. correspondence, contract by, 39; 882. convicts', 104. definition of, 3; 7. discharge of, 811. dissolution of, by subsequent impossibility, does not affect acquired rights, 548. early use of word, 189. entire or divisible, 325. forbidden, contract may be, but not void, 405. ioTJiL of, in early English law, 149. modern principles, 148. no systematic rules in early law, 149. forms, special, contracts subject to, 158. 938 INDEX. CONTRACT — Continued : general nature of, 1. illegal, 370. See UNLAWFUL AGREEMENTS. implied, 10. impossible in law, void, 524. infant's, 59. See INFANT. intention, representation of, not amounting to contract, has no eflfect, 650. interpretation of, rules for, 43; 307. judgment is not, 157, n. 1. letter, contract by, when concluded, 37. lunatics, 98. See LUNATIC, malum prohibitum and malum hi se, 401. marriage, agreements in restraint of, 464. married women's, 886. merger of, 874. mistake in, 560. See MISTAKE. property included by, 602. negotiable instruments, qualities of, 291. rights of bona fide holder, 290. parties must be ascertained at date of contract, 221 ; 223. partnership, contract of, 296; 892, n. 8. See PARTNERSHIP. personal, cannot be assigned, 594. personal services, contract for, 543. persons affected by, 221. place of contract by correspondence, 886! procedure upon, in mediaeval English law, 151. proof, archaic modes of, 150. quasi-contract, distinguished from tacit but real contract, 11. fictitious contract in English law, 12. in I. C. A., how dealt with, 12. term now recognized in England, 13. record, contracts of, 157. rescission of, 334; 687; 815. See RESCISSION. restraint of trade, agreements in, 467. rights under, distinguished from property rights, 287. Roman law, classification of contracts in, 902. influence of, on early English law of contract, 149. satisfaction by stranger to, 593 ; 840. shares in partnerships and unincorporated companies, transfer of, 296. special conditions, acceptance of, when implied, 54. stamp duties on, 798. variation of stamped agreement by subsequent unstamped document, 798. stranger cannot sue for damage for non-performance, 233, n. ( n ) . tacit, distinct from quasi-contract, 11.. terminology, 679. INDEX. 939 CONTRACT — Continued : third persons authorities in equity, 233. authorities in the United States, 237. See BENEFICIARY. cannot sue in England at law on contract made for his benefit, 233. See BENEFICIARY. can sue in many American states, 247; 250. not bound, 221 ; 224. not entitled by contract itself to demand performance, 222; 228. See BENEFICIARY. tickets as, 53. transfer of, \vhere duties as -well as rights transferred, 295. unconditional, not excused by performance being in fact impossible, 527. unilateral, 13; 21, n. 21; 34, n. 39; 35, n. 40; 213, n. 22. unlawful, 370. See UNLAWFUL AGREEMENTS. voidable, when, 3 ; 8. will, agreement to make disposition by, 466. with third person, promise to make, 51. CONVICTS: disabilities of, as to contracting, 104. COPYHOLD: infant copyholder must pay fine, 73. sale of, as freehold, voidable, G72. COPYRIGHT: agreement to publish in violation of, void, 376, n. 4. assignments of, 183; 590. in seditious and immoral publications, not protected, 419. license under supposed, as consideration, 194, n. 7. CORPORATION: appointments to offices by, must be under seal, 165. agent, corporation can only act by, 128. this rule does not apph' to deliberative acts and resolutions, 128. corporation liable ex delicto for acts of, 130. fraud of, 701. agreement for sale of offices of, void, 370, n. G. artificial person, treatment of corporation as, 124. capacity, limitation of, 128. charter, corporation created by. common law powers of, 133. common law has no theory of, 120. contract, executed, liability of corporation on, 166. right of corporation on, 166. implied, 167. » statutory forms of, 177. summary of law as to, 168. corporation sole: Crown said to be a, 127. ecclesiastical benefice, holder of, is a, 127. governor of a state said to be, 127, n. 2. Pope not a, 127. 940 INDEX. CORPORATION — Continued : crime, corporation cannot commit, 130. debentures, transferable, of, 145 ; 288. deed executed by all members is not deed of, 125, n. 99. directors of, p^rsonally interested in transactions with, 389, n. 33. I dissolution of, making performance of agreement impossible, 548, n. 34. estoppel, doctrine of, applicable to, 147. executed contracts, right of corporation to sue on, though not originally bound, 166. exemplary damages liable for, 130, n. 3 false statements to commissioner relied on by individual, 703, n. 23. form of corporate contracts, summary of law as to, 168. fraud, liability for, 131. indictable for a nuisance, 130. legal corporate existence, necessary marks of, 126. malicious prosecution, corporation liable for, 130, n. 3. members, existing, consequences of the distinction of corporation from, 125, n. 99: 132. members, unanimity of, 125, n. 99 ; 137. money received, action for, lies against, 167. municipal, contracts of, 164. liability for torts, 132, n. 7. negotiable instruments, when corporation bound by, 143. may now be under seal, 144. nuisance, corporation may be indicted for, 130. oflficer, power of, to bind corporation by apparently regular acts, 898. official sanction matter of procedure and convenience, 126. part performance, equitable doctrine of, applicable to, 147. personality of, 125. personal liabilities, corporation cannot incur strictly, 130. powers, limited, of statutory corporation, 133. limited by doctrines of partnership and agency, 896. must not be used to defeat purposes of incorporation, 138. of, modern authorities on, 139, n. 16; Note D., 896. promoters of, fiduciary relation of, 389, n. 33; 736, n. (i). prospectus, false statements in, 704. public, interests of, as investors, 140. ratification of irregular transaction by assent of all members, 900. representation of officers that conditions have been performed, 137, n. 14. rescission, after bankruptcy of, 720, n. 49. Eoman law, would not allow formation of, without authority, 126. Beal, corporate, contracts formerly required to be under, 159. improper use of, 147. requirement of, a mere positive rule of English law, 128. , trading contracts, exception of, 162. I transferable debentures under, negotiable, 145 ; 293. whether equivalent to signature in bills and notes, 144 ; 293. INDEX. 941 CORPORATION — Continued: shareholders, dissenting, rights of, to restrain acts of governing body, 134; 896. statutory, acts of, void outside of statutory powers, 1.3.3; 138. subscription for stock released by change of purpose of corporation, 135, n. 11. torts, liability for, 129. vltra vires acts of, 141, n. IG.. unlawfully doing business, may recover on contracts, 490, n. 50. And see COMPANY. CORRESPONDENCE : authorities on. Note B., 882. complete by posting acceptance, 39. contract by. 37. COSTS: agreement with client as to, 806. fraud, unfounded charges of, visited with, 072 ; 724. Solicitors" Remuneration Act as to, 806. And see SOLICITOR. COUNSEL. See BARRISTER. COVENANT: action of, 152. alteration of, 845. covenantee must be defined, 14, n. 13. general, restrained by special, 624. order and mutuality of performance of, 320. power, covenant to exercise by will, whether good, 466, n. (m) . real property, relating to, person not party may take benefit of, 232. restrictive, how enforced in equity, 305. not enforced against sub-purchaser of chattel, 298. voluntary, 216. when covenants run with land, 298. ■CREDIT: term of, as affecting right to rescind, 707. CREDITORS: agreements in fraud of, 377: 504; 793. alteration of instrument in fraud of, 849. attaching, cannot hold against defrauded equitable ovtTier, 716, n. 43. CROPS: sale of, not within Statute of Frauds, 173, n. 14. CROWN: said to be a corporation sole, 127. CUSTODY OF CHILDREN: agreements as to, how far valid, 461; 512. CUSTODY OF INFANTS ACT, 1873: 463. 942 INDEX. CUSTOM: London, custom of: as to infant apprentice, 81. as to married women trading alone, 91. modern, may add to the law merchant, 293. of brokers to deal as principal, 388. of country or trade, terms added to contract by, 315. some contracts of infants binding by, 81. terms introduced by, 315. DAMAGES: distinguished from penalty, 632. for breach of contract to pay debt, 245. for coimtermanded contract, 349. for services when contract repudiated, 337. DEATH: civil, 90. contract to be performed at the death of a person is not within the Stat- ute of Frauds, 176, n. 17. of principal, revocation of agent's authority by, 106. revocation of proposal by, 42 cp. 106, n. 61. DEBENTURES: company's seal, under, negotiable, 145; 293. negotiable instruments, now recognized as, 293. transferable, form of, 293. ■whether holder takes free from equities, 288. DEBT: action of, 151; 188. trial by battle in, 150. assignment of, 220. contract to pay another's, 242 ; 244 ; 255. payment of, as consideration, 210. promise to pay as consideration, 204, n. 15. survives destruction of written evidence when, 868. DECEIT, ACTION OF: former ecjuity practice analogous to, 921. may lie against corporation, 129, n. 3. what is ground for, 682. And see FRAUD AND MISREPRESENTATION. DEED: acceptance of, necessary, 6, n. 3. action on. is on deed itself, not on promise, 151. agent, principal not liable on deed of, 109. cannot be written on wood, 156. executed by all members of corporation does not transfer corporate property, 125, n. 99. in error as to its contents, not binding, 583. favor of wrong party, whether void, 593. INDEX. 943 DEED — Coi^tinued: Frauds, Statute of, does not apply to, 182. medieval, in England, of Norman origin, 150. promises made by, peculiarity of, 6; 55. undelivered or incomplete, may be memorandum under Statute of Frauds, 175, n. 16. DEPENDENT AND INDEPENDENT PROMISES: meaning of terms, 326. DEPOSIT: recovery of. See MONEY PAID. DETINUE: action of, 152. DIRECTORS: how far third persons are bound to know whether particular acts are authorized, 897. of public companies, extent of their authority presumed to be known, 136. personal interest of, in dealings with corporation, 389, n. 34. power of, to bind company by statements, 702; 714. statements of, when company bound by, 702; 714. And see COMPANY; CORPORATION. DIRECTORS' LIABILITY ACT, 1890: imposes responsibility for statements in prospectus, 677. DISCHARGE OF CONTRACTS: after assignment, 282. by accord and satisfaction, 270; 828. See ACCORD AND SATISFAC- TION. by alteration, 845. See ALTERATION. by arbitration and award, 877. See ARBITRATION AND AWARD. by bankruptcy, 812. See BANKRUPTCY. by breach, 811. See REPUDIATION. by cancellation and surrender, 843. See CANCELLATION AND SUR- RENDER. by impossibility, 518; 812. See IMPOSSIBILITY. by merger, 874. See MERGER. by performance. 811. See PERFORMANCE. by rescission, 212; 815. See RESCISSION. by release, 812. See RELEASE. by Statutes of Limitation, 773; 812. See LIMITATION, STATUTES OF. distinguished from discharge of right of action, 812. methods of, 811. DISCLOSURE: no general positive duty of. 650. but duty implied in special cases. 651. And see FRAUD AND MISREPRESENTATION. 944 INDEX. DISENTAILING DEED: may be rectified by the court, 644. DIVISIBLE CONTRACTS: alteration of part of, 850. where part illegal, 482. DIVORCE: agreements conditioned on the granting of, 444, n. 7; 515, n. 82. And see SEPARATION DEED. DOCTOR AND PATIENT: presumption of undue influence from relation of, 735. recovery of charges, 801. DOCTOR AND STUDENT: "consideration" in, 190. DOMICIL: effect of law of, on validity of marriage, 397. DRUNKENNESS: contract of drunken man voidable, not void, 100, n. 52. effect of, on capacity of contracting, same as of insanity, 58; 98; 104, n. 56. DURESS: imprisonment as constituting, 729, n. 8. recovery of money paid under compulsion, 730, threats of injury to another, 729. threats, when it consists in, the threat must be of something unlawful, 730. what is, at common law, 728. And see UNDUE INFLUENCE. EASEMENTS: new kinds cannot be created, 303. ECCLESIASTICAL LAW: influence of, on legal view of morality, 410. ELECTION: communication of, 710. not necessary in order to acquire right of action after breach, 353. to adopt agreement void for mistake, 621. to avoid contract made in infancy. 68, n. 14: 70. to avoid or affirm contract induced by fraud, 707. to charge principal or agent, 116. to rescind contract for repudiation or breach, 345. to sue debtor or one who assumed debt, 270. under a mistake, 579, n. 20. what facts show, 707. ELECTION PETITION: coiapromise of, 443. INDEX. 945 "ENGAGEMENT." See SEPARATE ESTATE. EQUITY: acquiescence, estoppel by, 791. loss of remedies by, 721. agent's contract, undisclosed principal must take subject to equities, ll?. assignment of contract in, 279. assignee may sue, 219. assignee takes subject to equities, 284; cp. 294, n. 88. imless rule excluded by special agreement, 287. notice to debtor required, 280. auction, sales by, former difference between law and equity, 684. award, whether stranger bound by, 22G. benefit of third person, enforcement in equity of contracts for, 233 ; 243. See BENEFICIARY. cancellation of instruments, jurisdiction of equity as to, 725. *' catching bargains," rules as to, 759. children, custody of, rules of equity as to, 461. consideration, good, what is, in equity, 216. construction, rules of, in equity, 625. copyright, of seditious or immoral publications, equity will not pro- tect, 419. covenants running with lana, doctrine of equity as to, 304. deceit, suits analogous to actions of, in equity, 682, n. (i). destroyed instrument, relief for, 846. doctrine of, as to unlawful agreements where parties not in pari delicto, 503. "equality" between contracting parties, 751. estoppel by acquiescence or representation, 791. evidence, parol, equity does not admit on questions of construction, 311. expectant heirs, special protection of, 755. fraud, contracts voidable on ground of, 440, 725. gifts, imperfect, treatment of, in equity, 218. voluntary, treatment of, in equity, 738. And see UNDUE INFLU- ENCE. infant; liability in equity on false representation of full age, 84. liability in equity for money loaned for necessaries, 80, n. 24. marriage settlement, treatment of, 65. infant's contract, no specific performance of, 66; 71. informal contract with corporation not aided, 166. lost instrument, relief for, 847. lunatic, equity adopts rule of law as to acts of, 100, n. (n). "making representations good," supposed former doctrine of, 649; 915. mistake, payment made by, recovery back, agreement with law, 458. purchase of party's own property by, 491. restricted construction of general words, 502. mortgage, enforcement of, in eqviity against one who assumes, 261. 60 946 INDEX. EQUITY — Continued : negotiable instruments, equity agrees with common law as to, 292. equity restrains negotiation in eases of fraud, 292. obligations, equitable, treatment of, at common law, 809. part performance in equity, 790. penalties, relief against, in, 629. purchase for value without notice, rule of equity as to, 567. equity will not deprive purchaser of anything he has already got, 568, n. {x). rectification of instruments in, 636. relief in case of unexecuted accord, 833. representation, estoppel by, 795. rescission of sales of land for grantee's breach of contract, 335. restrictive agreement as to use of chattels not enforceable against sub- purchaser, 298, n. 94. Bales of land, where parcels included by mistake, decisions in equity, 600.^ separate estate, doctrine of, 94 ; 886, And see SEPARATE ESTATE, specific performance and compensation on sales of land, 663. refusal of, on ground of undervalue, 752. surety, agreement between law and equity as to creditor's duty to, 660. third persons, right of, to enforce contract in equity, 233; 243. time, when of essence of contract in, 626. undue influence, equitable doctrine of, 732. voluntary covenants, treatment of, in, 217. settlements generally, 738. how set aside, 739. ESCROW: writing delivered as, 312. ESTOPPEL: acquiescence, estoppel by, 791. agent, one party acting as, to other party in preparing instrument con- cerning both, 642. corporations bound by, 147. heir bound by, when he has conveyed with warranty, 459, n. 24. infants, by misrepresentation of age, 82, n. 27. married women's interests may be bound by, 88, n. 34; 795. misrepresentation, estoppel of party who has induced fundamental error by, 619. negligence, estoppel by, whether applicable to deeds, 585, n. 30; 586, n {I) im). of holder of instrument dealing with it as negotiable, 294. part performance, effect by way of estoppel, 791. representation, estoppel by, 795. statements binding by way of, 648, Statute of Limitations, estoppel to plead because of promises to pay,^ 779, n. 12. INDEX. 947 EVIDENCE: altered documents, admissibility in, 847; 865, n. 83; 868; 873. extrinsic, always admissible to show illegality of agreement, 492. subsequent conduct of parties may be evidence of original unlawful intention, 493. to explain particular terms in agreement, 313. of document being agreement or not, admissible, 311. of unlawful intention, 493. parol, not admitted to vary written contract, 310. of oral variation, admitted as defense to specific performance of writ- ten agreement, 633. but not to obtain performance of agreement as varied, 633. inadmissible to rectify instrument where there is previous agree- ment in Avriting, 637. but admissible, if uncontradicted, where no written agree- ment, 637. EXCISE: statutes regulating trades, etc., subject to laws of, 708. EXECUTORS: barred debts may be paid by, 776. liability and right of, generally, on contracts of testator, 223; 224, n. (g) ; 278, n. {h). personal service, contracts of, executors cannot be sued on, 222 ; 535 ; 543. or on contract to marry, 546, n. {y). rescission, right of, for undue influence may be exercised by, 768. EXPECTANCY: sale of; not unlawful, 344. See also 755. EXPECTANT HEIRS: protection of, by courts of equity, 755. FELONS: convicted, disability of, 104. FIDUCIARY RELATION: between contracting parties, effect of, 741. instances of, 630, n. 93; 734. And see UNDUE INFLUENCE. FORBEARANCE TO SUE: as consideration for promise, 212. FOREIGN LAW: agreements lawful by, but not by law of forum, treatment of, 506. subsequent prohibition by foreign law: performance deemed impos- sible, 514. but contract rendered impossible of performance by, not dis- charged, 530. contracts payable in Confederate money, 431, n. 89. revenue laws of foreign countries said to be disregarded, 431. stamps, foreign law as to, effect of, 433. undue influence: French law of captation, Note L., 922. And see CONFLICT OF LAWS. 948 INDEX. FORFEITURE: relief against, in equity, 629. FORGERY: adoption cf, 443; 856, n. 18. of indorsement confers no title, 569. FORMAL CONTRACTS: cases where form specially required, 154; 157. charter, English medieval, of Norman origin, 150. contracts of record, 157. importance of, in ancient law, 149. modern requirements of form, 157. Roman law, position of, in, 150. transition from formal to informal proof in English law, 149. when oral agreement preliminary to, is itself a contract, 46. And see CORPORATIONS; FRAUDS, STATUTE OF. FRAUD AND MISREPRESENTATION: acquiescence, passive, in self-deception of other party is not fraud, 609. affirmance of contract induced by, 705. agent, liability of corporation for fraud of, 130; 701. agreement that architect's certificate shall be binding in spite of, 289, n. 3. auction, sales by, special doctrine as to, 684. companV, contract to take shares in; misstatements in prospectus, 674; 694. provisions of the Companies Act, 1900, 676. concealment, fraudulent, what is, 669; 681. consideration, inadequate, as evidence of fraud, 197; 749; 767. " constructive fraud," what is, 647. contract incidental to a fraud is itself fraudulent, 698. costs, unfounded charges of fraud visited with, 672; 724. creditors, fraud on, in compositions, 377; 504; 793. disclosure, duty of, in insurance, 656. error, fundamental, produced by misrepresentation, efTect of, 619; 639, n. 6. estoppel, relation of fraud to, 648. false representation; when an actionable wrong, 647. falsehood, when silence equivalent to, 681; 683. family settlements, misrepresentation in, 673. generally, 646. gifts, voluntary, 678. goods, delivery to wrong person obtained by fraud, 717. inadequacy of consideration as evidence of, 197; 749; 767. insurance, special rules as to misrepresentation in contracts of, 656. knowledge, means of, of party misled, 693. land, sales of; contract voidable for misdescription, 062. contract voidable for misrepresentation of title, 695, n. 12. rules of equity as to performance with compensation, 663. vendor's duty to describe property correctly, 669. INDEX 94i> FRAUD AND MISREPRESENTATION— Corj/inwed: marriage, not avoided by fraud, 677; 684. marry, contract to, when avoided by, 677. mercantile agency, false statements to, 699, n. 17. misdescription of goods in bill of lading, 659. of land, 662. misrepresentation, non-fraudulent, when aflfecting validity of contract, 648; 650. how fraud distinguished from, 678. mistake distinguished from fraud, 562. negligent ignorance, equivalent to fraud, 682. non-disclosure, effect of, in fire insurance, 657. effect of, in life insurance, 657. e^ect of, in marine insurance, 656. in family settlements, 673. of lack of title, 671. of mine on land bought, 683, n. 55. misrepresentation distinguished from, 650; 695. notice of, what constitutes, 722. partnership, contract of, misrepresentation in negotiation of, 674. pleading in cases of, 725, n. 58. price paid by seller, misstatement of, 690, n. 4. statement of, causes no liability, 691, n. 6. purchase of goods with intent not to pay for them, 679. reckless assertions, 682. remedies of party misled by, 705. representation, fraudulent, what is, 680. rescission of contract for fraud and for simple misrepresentation, 680. rights of party misled, 705. sales induced by, 716. settlements in fraud of marital right, 392. silence, when equivalent to falsehood, 681; 683. suretyship; misrepresentation avoids contract, 659. third person, consent of, obtained by fraud, 686. fraud on, makes agreement void, 376; 381. misrepresentation by. immaterial, 698. warranty, relation of fraud to, 649. And see RESCISSION; REPRESENTATION. FRAUDS, STATUTE OF. acknowledgments of barred debts, 778. agency to sell land, 174, n. 15. as to agreements not to be performed within a year, 175; 784; 789, n. 29. as to assignments, 279. boundary agreement, when not within, 175, n. 15. conflict of laws in regard to, 782. n. 18. contracts by advertisement not exempt from, 25. 950 INDEX. FRAUDS, STATUTE OF — Continued: deeds, whether statute applicable to, 182. effect of, where writing does not represent the real agreement, 541; 633; 635. executed contracts, does not apply to, 789, n. 29; 823. executor, special promise by, 169. guaranties, 169; 785. informal agreements within s. 4, effect of, 783; 785. land, interests in, contracts as to, 172; 783. leases, 174. Limitations, debts barred by Statute of, 778. marriage, agreements in consideration of, 172. money paid not recoverable because agreement within, 785. note or memorandum, 178. effect of note signed by one party only, 180. memorandum must exist at time of action brought, 182. signature of, 180. undelivered deed may be, 175, n. 16. parol variation of contracts within, 822. part performance, equitable doctrine of, relation of statute to, 790. partnership to deal in lands, 174, n. 15. procedure, whether statute merely affects, 782. rectification of contracts within, 633, n. 98; 635. rescission of contracts within, 822. sale of crops, not within, 173, n. 14. sale of fixtures, not within, 174. sale of goods, 178; 782. sale of trees, within, 173, n. 14. settlement, ante-nuptial agreement for, confirmed by post-nuptial writ- ing, 792. third person cannot take advantage of, 786, n. 23. trust, assignment of, 280. validity of agreement where no satisfaction of, 782. FRAUDULENT CONVEYANCE. See VOLUNTARY DEED OR SETTLE- MENT. FRAUDULENT PREFERENCE: agreements with particular creditors by way of, 377; 504. GAMING: securities for money won at, 407. treatment of gaming debts contracted abroad and not unlawful by local law, 511. And see WAGERS. INDEX. 951 necessaries, liability for, 60; 66, n. 11; 74; 76. liability in simple contract only, 80. deed given to secure repaj-ment of money advanced for, 80. negotiable instrument given for, 80, n. 25. what are, 74; 78. negotiable instruments, 66. partnership, 63 ; 69. power of attorney, 66, n. 11. promise as consideration for adults' promise, 66, n. 12. promise to marry, 65. property, obligations incident to, liability on, 73. ratification since Infants' Relief Act, 70; 807. sale of goods to, 59. or purchase of land, 62. service, contract of, 61; 67, n. 14; 74; 81. shareholder, liability for calls on shares, 64; 73. specific performance, infant cannot have, 66; 71. statute, what contracts infants can make by, 81. INDEX. 955 INFANT — Continued : trading contracts, 75. wrong, liability for, when connected with contract, 82, INFANTS' RELIEF ACT, 1874: effect of section 1, 71. since the Act, of affirming agreement voidable at common law, 70 ; 807. makes certain agreements of infants void, 69. exception of contracts for necessaries, 72. ratification not Avholly inoperative under, 70. INSANITY. See LUNATIC. INSOLVENCY: of one promisor in a bilateral contract excuses the other, 323, n. 8; 354. INSTALMENTS: default in delivery or payment of, 327. INSURANCE: contract of, liberally construed in favor of true intention, 641. INSURANCE (FIRE): contract of insurers to reinstate is unconditional after election made, 528. eflfect of, as between landlord and tenant, 531. implies condition that property is correctly described, 658. insured dead when policy issued, 612, n. 70. war, effect of prevention of sending of notice of law by, 525, n. 6. when property destroyed pending a contract of sale, 523, n. 15. INSURANCE (LIFE): duty of disclosure by assured, 657. recovery by beneficiary, 243, n. 26; 244; 246; 251; 273, n. 54. stipulation that policy shall be incontestable after two years, 289, n. 83. unlawfulness of, does not prevent insurer from recovering money paid to fraudulent beneficiary, 499, n. 58. INSURANCE (MARINE): misrepresentation or non-disclosure, material, renders policy voidable, 656. policy, common form, result of series of decisions and of long recognized customs, 319. delivery of, by underwriters, 797. insurance must be expressed in, 183. stamped, required by statute, 795, 798. seamen's wages not insurable at common law, 463. " slip " recognized for collateral purposes, 795. rights of parties determined at date of, 796. vessel lost when policy issued, 612, n. 71. voyage illegal to knowledge of owner: insurance void, 489. INTEREST: excessive, as indicating a " catching bargain," 760. payment of, under compulsion implies no promise to pay debt, 778. 956 INDEX. INTERPRETATION: aiubiyuous tonus construed by conduct of parties, 572. construction distinguished from, 317. general intention prevails over particular terms, 317; 320. mutual promises: interpretation as regards order of performance, 320. necessity of, 307. of contracts, rules, 46. promise in general, 308. terms used in special sense, 313. And see MISTAKE. JUDGMENT: is not a contract, 157, n. 1. merger of simple contract by, 874. res judicata, 876. unsatisfied against agent bars suit against undisclosed principal, 116. KNOWLEDGE: how far material on question of unlawfulness of agreement, 485; 494; 514. means of. as aflfecting right to rescind contract for misrepresentation, 693. And see NOTICE. LACHES. See ACQUIESCENCE. LAND: Frauds, Statute of, as to sale of interest in, 172; 783. restitution of, for grantee's breach of contract, 335. what covenants run with. 2flS. And see SALE OF LAND. LANDLORD AND TENANT: covenant, no action on, where premises leased for unlawful purpose, 487. covenants running with tenancy on reversion, 298. fire, premises destroyed by, 531. Frauds, Statute of, as to lease, 174. infant, lease of, at common law, voidable, 62. statutory powers to make and renew leases, 81. lease for lives, effect of contract for sale, 617. Frauds, Statute of. as to, 174. of premises for unlawful purpose, no action on covenants, 487. lessor not bound to inform of state of premises, 673. possession, lessor cannot resume, on discovering unlawful purpose of les- see, 487. but may rescind contract where possession has not been delivered, semhle, 487. rent not recoverable where landlord intended premises should be used vmlawfully, 487. payable though premises accidentally destroyed, 530. IXDEX. 957 LANDLORD AND TEN AUT — Continued: repair, t'freet of covenant to, wlien building destroyed, 533. rescission of contract for lease where nossession not actually delivered, 437. statutes affecting contracts between. Oil. LAW MERCHANT: not invariable, 293. peculiarities of, as to negotiable instruments, 290. LEASE. See LANDLORD AND TENANT. LEGACY: sale of, for inadequate consideration, 757, n. 57. LEGISLATION: agreement for corrupt influence on, void, 434. LEX LOCI. See CONFLICT OF LAWS. LICENSED PREMISES: efl'ect of omission to paint seller's name on, 403. LICENSING ACTS: attempts to evade, 403. LIEN: seller's lion revives after expiration of credit, 324, n. 8. LIMITATION, STATUTES OF: acknowledgment of barred debts, 184; 201; 777. operates as new promise under statute of James I., 777. otherwise if specialty debt imder statute of Will. 4, 779. revives right of action, 777. writing required, 778. applied according to lex fori not lex co)itractus, 779. creditor may set up, 786, n. 23. debts not extinguished, 774. equity, extent to which s.tatute applies in, 774, n. 1. executor may pay barred debt of testator, 770. French, for setting aside contract for fraud, 724. married woman, promise or acknowledgment by, cannot revive barred debt, 90. payment by debtor as reviving debt, 778, n. 11. without particular directions; appropriation to satisfy barred debt, 775. promise to pay debt of another when barred by, 267. Real Property Limitation Act bars right as well as remedy, 779. remedy rather than right barred by, 780, n. 14; 781. securities not lost because debt barred by, 775. separate estate of married woman protected by, 895. set-off, barred debt cannot be, 776. but statute must be pleaded in reply to defence of, 776, n. (p), 8. specialty debt, acknowledgment of, under 3 & 4 Will. 4 must be founded on original obligation alone, 779. LIQUIDATED DAMAGES: distinguished from penalty, 633. 958 INDEX. LONDON: custom of, as to infant apprentice, 81. as to married women trading alone, 91. LUNATIC: champerty, rules as to, proceedings in lunacy not within, 460. contracts in lucid intervals good, 98. of, in general voidable, not void, 100. knowledge of other party to contract, 100. prior to lunacy, 100. restoration of consideration when contract avoided, 101, n. 52. delusions, partial, compatible with capacity for contracting, 103. equity, adopts rule of law as to acts of, 100, n. (n). marriage of, void, 98. necessaries, liability for, 99. partner: ground for dissolution only, 103. revocation of offer by insanity, 42. MAINTENANCE: definition of, 449. equitable assignment, attempt to oppose on ground of, 278. includes champerty, 4'49. kinship or affinity will justify, 461. statute of Hen. 8 against buying pretended titles, 457. -i. what dealings are within the statute, 458. unlawful intention essential to, 460. what amounts to, 451. MAJORITY: abuse of corporate powers by, 896. MALUM PROHIBITUM and malum in se, 399. MARITAL RIGHT: settlements in fraud of, 392. MARKET: doctrine of, does not prevail in America, 567, n. 6. market overt, sale of horses in, 183. MARGIN: purchases on, not necessarily wagers, 408, n. 63. MARRIAGE: action on contract to marry where defendant already married, 495, n. 55. agreements in consideration of, 172; 231. contract to marry not uherrimce fidei, 677. but creates a fiduciary relation, 735, n. 16. executor not liable on, 546, n. (y). repudiation of, 365. whether within Statute of Frauds, 172; 178, n. 19. fraud, marriage not avoided by, 677 ; 684. illness unfitting for, avoids contract to marry, 546; 547, n. 33. INDEX. 959 MARRIAGE — Continued : infants, of, 64, promise of marriage, infant may sue but is not liable on, 65. informal agreements in consideration of, how far made valid by poet- nuptial settlement, 792. invalid by law of party's domicil, whether valid in England, 397. lunatics, marriage of, void, 98. polygamous, not recognized by English Divorce Court, 509. prohibited degrees, marriage within, void, 395. restraint of, agreements in, 464. conditions in, 466. Royal Marriage Act, 397. settlement in fraud of marital right, 392. not affected by wife's non-disclosure of previous misconduct, 678. post-nuptial, 792. warranty of capacity implied, 120, n. (/). whether a formal contract, 158. MARRIED WOMEN: agreement conditioned on divorce void, 444, n. 7. agreement to perform marital duties void, 444, n. 7. agreement to support husband void, 444, n. 7. chose in action, acquisition of, 89. contract by, void at common law, 87. debt, barred, renewed promise by married woman cannot revive, 90. debts, ante-nuptial, husband's liability for, 98. dower, effect of refusal of wife of vendor to release, 666, n. 35. equitable enforcement of contracts in cases not within Act, "97. estoppel, interests of married women may be bound by, 88, n. 34; 795. incapacity, exceptions to: contracts with husband as to separation, 92. Queen Consort, 90. trader, custom of London, 91. effect of Act of 1882 thereon, 97, n. (r). wife of alien not resident in United Kingdom, 91. person civilly dead, 90. statutory exceptions, 93. Married Women's Property Act, 1882, 94; 393. promise after discoverture to pay debt incurred as, 199, n. 12. restraint on anticipation, 96. separate estate, equitable doctrine of, 94; 886. property, contract made as to, binds after-acquired property, 96. is liable for ante-nuptial debts, 96. married woman may contract and be made bankrupt in respect of, 87; 95. what is, by Act of 1882, 93. settlement of, in fraud of marital right, 392. undue influence, presumption of, in dealings with husband, 735. And see SEPARATE ESTATE. 960 INDEX. MASTER AND SERVANT. See SERVICE. MAXIMS: expressio unius est exclusio alterius, 624. ignorantia iuris baud excusat, 616. in pari delicto potior est condicio defendentis, 496. locus regit actum, 513. mala grammatica non vitiat chartam, 317. Bon videntur qui errant consentire, 564. nulla voluntas errantis est, 569. ut res magis valeat quam pereat, 122. MEDICAL PRACTITIONERS: conditions precedent to recovering charges, 801. Medical Act, regulations of, as to right of remuneration, 802. presumption of influence in gifts, &e., from patients, 735. MEMORANDUM. See FRAUDS, STATUTE OF. MERCANTILE AGENCY: false statements to, 699, n. 17. MERGER: discharge of contract by, 874. distinguished from res judicata, 876. MINES: construction of unqualified covenants to work, 541. non-disclosure of, by purchaser of land, G83, n. 55. MISREPRESENTATION. See FRAUD AND MISREPRESENTATION. MISTAKE: alteration by, 853. ambiguous terms of contract, 599; 601. agreement that architect's certificate shall be valid in spite of, 289, n. 83. annuity sale of, when life has expired, 613. assignment of contracts, mistake as affecting, 594. bankruptcy, money paid to trustee in, repayment of, 580. buyer, error of, not induced by seller, inoperative, 609. classification of cases of, 562. clerical errors, 622. compromise of action arranged by, 603. disputed rights, 577. condition of title, when: purchase for value without notice, 566. consent order, mistake in, 645. true, mistake in expressing, 574; 621. mistake as excluding, 581. construction, mistake in, by parties, does not alter contract, 572. does not of it self affect validity of contract, 564. or avoid liability of party acting under mistake, 564. INDEX. 961 MISTAKE — Contimied : election, to adopt void agreement, 621. error as to existence of subject-matter, Gil. material attribute thereof, 60G. nature of transaction, 583. its legal character, 589. person of other party, 590. subject-matter of contract, 597; 611. validity of obligation, 607. » fundamental, 583; 619. Bracton's treatment of. Note H., 913. must be common to avoid contract, 608. produced by misrepresentation, 607; 619. existing rights, mistake does not as a rule alter, 570. expression of consent, error in, 621. fact, mistake of, 574. fraud, mistake distinguished from, 562. general words, restriction of, 623. goods, misdelivery of, 570. judicial offrcers, exceptional rules as to, 566. kind, error as to, 603. land, sale of: parcels included by mistake, 600. distinction of cases of misdescription in sales of, 611. law, mistake of, 572; 616; 633, n. 97. life estate, sale of, when life has expired, 614; 617. misdescription in sales of land, 611; 664, n. 32. misrepresentation, fundamental error produced by, 607; 619. money paid by, recovery back of, 579. obvious, correction of, by ordinary construction, 317. payment to wrong person, 570. under mistake of fact, 574. person, of other party, error as to, 590. price, error as to, 605. promise to pay barred debt in ignorance of the bar, 778, n. 11. purchase of property really one's own, 526; 615. quality, error as to, 606. quantity, error as to, 604; 610, n. 68. read, effect of failure to, 583; 585; 589, n. 37. effect of inability to, 584. rectification of instruments on ground of, 576; 636. And see RECTIFI- CATION. remedies, of party to void agreement, 620. repugnancy, 623. rights, renunciation of. 574; 577. sale by sample, mistake in, 619. services rendered under mistake give rise to no obligation, 11, n. 8. settlements, rectification of mistakes in, 517. 61 963 INDEX. MISTAKE — Continued : sliares, purchase of, through mistake as to identity, 592, n. (f); 598, n. 51; 602. purchase of, after winding up, G13; 618. error as to nature and objects of company, 602. specific performance, mistake in expression of contract a bar to, 602; 633. wills, mistake in, 644; 914. MONEY-LENDERS ACT, 1900: .763; 911. MONEY PAID: bankruptcy, money paid to trustee in, imder mistake of law, 579. compulsion, money paid under, recoverable, 730. deposit, money pr.id as, on purchase of land, when recoverable, 542: 715. infant, money paid by, under voidable contract. 67, n. 14: 08. money paid to, for purchase of necessaries recoverable in equity, 80, n. 24. informal agreement within section 4 of Statute of Frauds, money paid under, not recoverable, 785. lease, premium paid for, when recoverable by lessee, 715. mistake, money paid by, when recoverable back, 579. public officer to induce him to do his duty may be recovered, 731. recovery of, when contract repudiated, 334. Statute of Frauds, money paid under agreemant unenforceable under, 786. Tippling Act, money paid for debts within, not recoverable, 807. unlawful agreement, money paid under, Avhen it can be recovered back, 496. wrong person, payment to, 570. MONEY RECEIVED: action for, as remedy to enforce trust, 238. lies against corporation, 107. MORTGAGE: alteration of mortgage note or bond, 870. assumption of, 260. distinguished from sale, 631. purchaser of mortgage not entitled to, 292, n. 84. sale treated as, if such is true intention, 629. of equity of redemption by mortgagor to mortgagee, 630, n. 93. treatment of, in equity, 629. NECESSARIES: definition of, in Sale of Goods Act, 1893, 74. infant, apparent means of buyer not material, 78. liability for, 60: 66, n. 11; 74; 76. is on simple contract only, 80. money paid to, for purchase of, recoverable in equity, 80, n. 24. INDEX. 963 NECESSARIES — Continued : infant — Continued : negotiable instrument given for, 80, n, 25. supply from otlier sources, 77. what are, not confined to goods, 78. question of mixed fact and law, 76. lunatic, liability for, 99. NEGLIGENCE: agent must not profit by his own, 391. of corporation answerable for as well as natural person, 129. does not vitiate title of bond fide holder of negotiable paper, 569. estoppel by, extent of, 585, n. 30; 586, n. (I), (ni). misrepresentation, negligence does not exclude right to rescind for, 693. NEGOTIABLE INSTRUMENT: acceptance by parol, 25, n. 24. agent, acceptance by: principal bound though not in principal's name, 110. alteration of, 866. assignment of altered, 866. bond fide assignee, rights of, 291. bonds, foreign government, treated as negotiable by English law, 293. cheque sent as satisfaction of disputed claim, 838. corporation, when bound by, 143. debentures are, 293. discharge of, by cancellation and surrender, 844. by parol exoneration, 819. estoppel, negotiability by, 294. how instruments cease to be negotiable, 294. indorsement, forged, holder cannot make title through, 292; 569. in error as to nature of instrument not binding, 584. infants', voidable, 66; 80, n. 25. legal validity of, error as to, 607, n. 65. letter of credit, 24. married women's, 889, n. 7; 891, n. 8. * must be in writing, 168. negligence does not vitiate title of holder of, 569. office, bills or notes may be payable to holder of, 236. partnership, when firm name is that of individual partner, 110, n. 74. peculiar qualities of, 56, n. 62; 291. scrip, foreign government, issued in England, is, 294. seal of corporation, whether equivalent to signature, 145 ; 293. signature by any mark or designation, 110, n. 74. by officers and their successors, 122. by trustees, 122, n. 95. warranties implied on sale of, 654, n. 5. what can be admitted as, 203. And see BILL OF EXCHANGE. 964 INDEX. NDN-DISCLOSURE. See FRAUD AND MISREPRESENTATION. N01V-PERFORMANCE : by promisor a good defence against beneficiary, 272. as defence in a bilateral contract, 323, n. 8. NOTICE: assignee of married woman's separate property with, bound by engage- ment aflfecting it, 891. assignment of contract, notice to debtor, 222; 281. of fraud, what constitutes, 722. purchaser for value without, 305; 567; 5G8; 715. And see KNOWLEDGE; PURCHASE FOR VALUE WITHOUT NOTICE. NOVATION: assent to, not presumed unless there be distinct request by debtor, 227. its nature explained, 227. promise for benefit of third person treated as, 270. NUDUM PACTUM: change in the meaning of the term in English use, 903. in " Doctor and Student,'" 190. And see CONSIDERATION. NUISANCE: agreement to complete, illegal, 374. OFFENCE: agreement to commit, void, 374. compounding of, 440. OFFER. See PROPOSAL. OFFICE: appointments to, by corporation must be under seal, 165. corporate agreement to sell, void, 376, n. 6; 4.39, n. 96. negotiable instruments payable to holder of, 236. public, sale of, unlawful, 438. Statutes against sale of, 911. OPTIONS: are not wagers, 408, n. 63. when are merely offers, 28, n. 27. PAR DELICTUM: doctrine of, 496. qualifications of and exceptions to it, 496; 503. PARCELS: mistake as to, in sales of land, 600. PAROL VARIATION: of written agreement, rule against, 310. INDEX. S65 PART PERFORMANCE: applicable to corporations, 147. equitable doctrine of, 790. PARTIES: to action, on contract made by agent, 107. contract, rules as to, 221. And see BENEFICIARY. PARTNERSHIP: assumption of debts of, as affecting creditors' rights, 266. carried on under individual name, 110, n. 74. company law, rules of, analogous to law of, 134. contract of shareholders a modified contract of, 134. contract of, dealing in land is not within Statute of Frauds, 174, n. 15. death of members of, dissolves contract of employment, 543, n. 29. dissolution, deed of, release in, cannot be disputed by party after concern completely wound up, 715. duty of disclosure in, 683, n. 55. illegal, accounting in case of, 500, n. 60. infant partner, position of, 63 ; 69. insanity of partner, 103. limitation of corporate powers by law of, 896. married woman as member of, 892, n. 8. misrepresentation in negotiation of, 674. rights of dissenting partners, 134. shares in, transferable at common law, 296. PATENT: license under supposed, as consideration, 194. PENALTY: and liquidated damages, 632. imports prohibition, 399. imposition of, by statute, implies prohibition, 399. relief in equity against, 629. PENSIONS: cannot be assigned, 440. PERFORMANCE: of mutual promises, 320. part, in equity, 790. prospective default in, efTect of, 323, n. 8; 354. whether time of essence in, 627. PERSONAL CONTRACTS: implied condition in, as to life or health of party continuing, 543. not assignable, 594. PERSONATION: eflfect of, 592; 718. 966 INDEX. PHYSICIANS: presumption of undue influence of, in transactions with patients, 735. rights of, as to payment for services at common law, 801. under Medical Act, 801. PLEADING: in case of alteration, 872. fraud, 725, n. 58. repudiation, 353. POSSESSION: obtained by fraud does not enable possessor to transfer title, 717. POST: communication of acceptance by 36. delivery by error of post after notice to withdraw letter is ineffectual, 571. POST OFFICE: whether common agent of parties in correspondence by letter, 38; 571. POWER OF ATTORNEY: infant's, 66, n. 11. lunatic's, 152. PREVENTION: breach justifies refusal to perform by other party though not amounting to, 352, n. 79. PRICE: error as to, 605. PRINCIPAL AND AGENT: principal, agent's authority determined by death of, 106. agent not liable where exclusive credit given to, 117. liability on contracts made by agent, 113. may recover from one who corrupts his agent, 392, n. 40. representations of agent, when answerable for, 700. right to countermand unexecuted authority, 502. undisclosed, rights of, 113. professed agent : when he may declare himself as real principal, 123. sub-agent not agent of principal, 596. And see AGENT. PRINCIPAL AND SURETY. See SURETY. PROMISE: as consideration, 186; 201. by advertisement, nature and limits of, 13; 23. deed, binding without acceptance in English law, 6, n. 3. definition of, 2; 6. effect and interpretation of, 308. express, tacit, implied, 9. founded on moral duty, not binding without valuable consideration, 198. illusory, 49. IXDEX. 967 PROMISE — Continued: inferred in fact or implied by law, 10. must be certain, 203. mutual, 201. past services rendered on request, promise to pay for, 199. tacit and fictitious, distinction between, 10. to perform existing duty, 203. several, whether one can sue on, 235. See ACCEPTANCE; AGREEMENT. i PROMISES: dependent and independent, 321. ■ in same instrument, where some lawful and some not, 482. mutual, order of performance, 320. PROMOTERS: agreements of, when binding on company, 225. fiduciary position of, as regards company, 389, n. 33: 676; 736, n. (i), misrepresentation in contracts of, 674. statements of, may become statements of company, 702. PROSPECTUS. See COMPANY; PROMOTERS. PROOF: archaic modes of, 150. transition from formal to informal modes in English law, 149. writing, proof by, origin of, 150. And see EVIDENCE. PROPOSAL: acceptance will not relate back to date of, 41. addressed to all to whom it comes, 13. bidder at auction makes, 15. by advertisement, 13, 23. conditions of, as to time, etc., 29; 34, n. 39. cross-proposals do not make contract, 5, n. 2. death or insanity revokes, 42. express or tacit, 9. generally, element of contract, 1 ; 5. implied, 10. invitation to make offers, distinguished, 15; 19. joking, not basis for contract, 3, n. 1. lapse of, 28, n. 29; 29. rejected by counter proposal, 30, n. 34; 43, n. 47. revocation of, by death of proposer before acceptance (under I. C. A. only if known to the other party), 42; 106, n. 61. after part performance, 34, n. 39. must be communicated, 30. when it mav be made, 25. 968 INDEX. PROPOSAL — Continued: sealed, is irrevocable, 28, n. 28. time table held to be, 15. unknown, cannot be accepted, 14, n. 12. written, accepted by parol satisfies Statute of Frauds, 180. PROSECUTION: agreements to stifle, 440. PUBLIC OFFICE. See OFFICE. PUBLIC POLICY: agreements contrary to, 421. to be sued in specified court, 446, n. 11. aiding hostilities against friendly nations, 430. arbitration, agreements for reference to, 445. auctions, agreement to refrain from bidding at, 470, n. 36. company: corporate powers must not be used to defeat purposes of in- corporation, 138. compounding offences, 440. corrupt or improper influence, agreements for, 434. custody of children, agreements as to, 461. divorce, agreements conditioned on, 444, n. 7. Egerton v. Earl Broicnlow, opinions in and effect of, 423. foreign revenue laws as to, 431. forged signature, adoption of, 443; 856, n. 18. heir or devisee, conveyance by, 459 ; 755. individual action, agreements limiting freedom of, 464. maintenance and champerty, 449. marriage, agreements in restraint of, 464. salaries, assignment of, 439. sale of offices, 376, n. 6; 438. State, agreements against interests of, where sued upon, cannot be sup- ported by any local law, 506 ; 509. stifling prosecution, 440. testator, agreements to influence, 462. trade, restraint of {which see), 467. trading with enemies, 426. wagers, doctrine extended in order to discourage, 421. winding-up, secret agreement as to conduct of, 445. witnesses, void agreements with. 441. n. 1; 445, n. 9. And see UNLAWFUL AGREEMENTS. PUBLICATIONS: immoral, &c., cannot be ground of civil rights, 419. PUBLISHER: contract of, with author, not assignable, 596. PURCHASE FOR VALUE WITHOUT NOTICE: attaching creditor is not. 716, n. 43. from fraudulent buver, 716. INDEX. 960 PURCHASE FOR VALUE WITHOUT NOTICE — Continued: in case of mistake, 56S. no rescission against, 715. purchaser for antecedent debt is not, 716, n. 43. transfer as security is not, 717, n. 43. QUASI-CONTRACT: corporations liable upon, 167. And see ULTRA VIRES. distinguished from tacit but real contract, 11, n. 8; 12. fictitious contract in English law, 12. infant's liability for necessaries is based on, 80, n. 24. infant may recover on, for services, 67, n. 14. in Indian Contract Act, dealt with separately, 12. term now recognized in England, 13. QUID PRO QUO: " consideration " analogous to, 190. in action of debt: apparent benefit to promisor not material, 192. .medieval use of term, 188. RAILROAD: agreement to lay, through a town, when void, 377, n. 6. RAILWAY COMPANY: liability of, as to correctness of time-table, 15. agreement to give sleeping-car company exclusive right is valid, 469, n. 36. agreement to give telegraph company exclusive right is void, 469, n. 36. RATIFICATION: must be within reasonable time, 107. and by one who might have been originally bound, 121. of act of unauthorized person after expiration of time limited, 107. alteration, 856. agent's acts, relates back, 107. infant's contract: effect of Infants' Relief Act, 70; 807. irregular acts by assent of shareholders, 137; 900. payment by a third person, 842. And see ACQUIESCENCE; ADOPTION. RECORD: contracts of, 157. discharge of, by accord and satisfaction, 836. merger by, 874. RECTIFICATION OF INSTRUMENTS: actions for. procedure in, 645. common intention of parties different from expressed intention must be shown, 576; 639. or fraud of defendant and mistake of plaintiff, 639, n. 6. proof of one party's intention will not do, 640. possible exception where one party acts as other's agent, 641. 970 IXDEX. RECTIFICATION OF INSTRUMENTS— CoHf;«Me(Z: conveyancf, new, not required, 045. disentailing deeds, 644. jurisdiction of the Court in, G3G. option to rectify or set aside in certain cases, 644. oral evidence, how far admissible, 637. proof beyond reasonable doubt is necessary, G40, n. 7. settlements, at whose suit rectification granted. 643. reformation of, according to previous articles, 642. special rules as to this, 642. voluntary, when rectification sought by settlor alone, 644. specific performance in suit for, 633, n. 98. Statute of Frauds as aflfeeting, 633, n. 98; 635. wills, no jurisdiction in equity to rectify. 644; 914. REFORMATION OF INSTRUMENTS. See RECTIFICATION OF INSTRU- MENTS. REJECTION OF PROPOSAL: counter proposal is, 30, n. 34. RELEASE: conditional, 814. contract for the benefit of third person, 273. covenant to forbear as, 813. discharge of contract by, 812. in deed of dissolution, cannot be disputed by party after concern com- pletely wound up, 715. of future actions, 358, n. 98 restricted construction of, 625; 815. seal, essential to voluntary, 813. REPRESENTATION: agent: representation of. when principal liable for, 699. representation of authority, 119. ambiguous statements, 692. . as term of contract, 649. corporation's officers', 137. n. 14. fraudulent, examples of, 680. or innocent. 647. future, representation of the, operates as contract, if at all, 650. inducing contract, 693; 697, n. 13: 703, n. 23. infant: representation of full age, 82, n. 27; 84. "making representations good,'" supposed equitable doctrine of, 649; 915, married woman: representation of discoverture by, 87. materiality of, is question of law, 697, n. 14. meaning of the word, 221. INDEX. 971 REPRESENTATION — Continued : must Le made by party to contract, G98. and as part of same transaction, 703; opinion, statements of matter of, G91. public, relied on by individual, G99, n. 17; 703. rescission of contract: conditions which plaintiff must satisfy in action for, 687. representation must generally be of matter of fact, 088. not of mere motive or intention, 689. must liave, in fact, induced the contract, 693. silence, when equivalent to, 680, 683. third person's, immaterial, 098. warranty and condition, representations amounting to, 0.52. And see FRAUD AND MISREPRESENTATION; RESCISSION. REPUDIATION OF CONTRACT: breach without, justifies rescission, 339. damages for, 349; 362; 369. does not terminate contract, 351. meaning of. 333. remedies for, 333; 347. rescission in case of chattels, 335. land, 335. money paid. 334. sealed contracts, 344. services, 336. requisites for, 339. ■where no performance rendered, 338. right of injured party to continue performance, 348. time when action accrues for 355. case of bond distinguished, 356. case of contract to marry distinguished, 365. to take shares. See SHAREHOLDER. without breach of contract justifies rescission, 339. RESCISSION: acts treating contract as subsisting, 707. breach of contract justifies, 339. conduct of party misled, 585. consideration, when necessary for discharge of contract by, 815. contract for the benefit of a third person, 273. contract subsequent as rescinding earlier, 204, n. 15. discharge of contracts by, 212; 815. election to affirm or rescind, how determined, 346; 707. rescind must be communicated. 345; 710. what commimication suflRcient, 710. fraud, option to atiirm or rescind contract for, 706. 972 INDEX. RESCISSION — Contin iied ; misrepresent.ation, rescission of contract for, 687. represent.ation must generally be of fact, 688. not of mere motive or intention, 689. must have, in fact, induced the contract, 693. and must be made as part of same transaction, 703. materiality of, 696. of title, 695, n. 12. mistake of one party may be ground for rescinding, but not for reform- ing instrument, 641, n. 9. ownership, acts of, negativing right to rescind, 714. position of parties, change in: no rescission where former position can- not be restored, 342; 712. prevention of performance as a ground for, 550. purchaser for value, rescission not allowed against, 715. recovery back of money paid under agreement, 715. remedy for repudiation when, 334. See REPUDIATION. representatives, right of rescission exercisable by and against, 712. repudiation justifies when, 334. restoration to former position essential, 342; 712. right of, on discovering unlawful purpose of other contracting party, 487. but a completely executed transfer of property cannot be rescinded, 488. sealed contracts, rescission of, 825. shares, contract to take: shareholder cannot rescind after winding-up, 719. time, reasonable, rescission must be within, 721. undue influence, rescission of contract for, 767. warranty, breach of, as justifying, 607. ■written contracts, rescission of, 821. RESTRAINT OF MARRIAGE: agreements void, 465. conditions in, 466. RESTRAINT OF TRADE: agreements as to bidding at auction, 470, n. 36. of parties to deal exclusively with each other, 469, n. 36. combination in restraint of trade, unlawful, 472. common law favors absolute freedom of trade, 472. competition, covenant making covenantee sole judge of, void, 477. consideration, ade^iuacy of, not enquired into, 475. corporation doing business in, maj' recover on legal contracts, 490, n. 50. customers, covenant not to deal with, 476. distances, how measured, 480. divisibility of contract in, 483, n. 39. exclusive service, contract for, must be mutual, 481. general principles, 467. INDEX. 973 RESTRAINT OF TRADE — Continued: Indian Contract Act on, 480. life, contract to serve for, good, if mutual, 481. limited restraints admitted, 475. medieval doctrine on restraint of trade, 471. monopoly, agreements tending to, feeling against in middle ages, 471. held void in United States, 408, n. 36; 474. presumption of badness of covenant: no rule as to, 477. price, specified, undertaking not to sell goods below, valid, 476. public policy, restraint in general opposed to, 468. reasonable, cases where restriction has been held, 478. restriction must be, 4GS. what is, must be decided on merits of each case, 469. and is a question not of fact, but of law, 477. restriction partly good and partly bad, 477. space, limit of, old common law rule as to, now modified, 475. time, limit of, not necessary to validity, 470. trade secret, contract not to disclose, may be unqualified, 469, n. 36; 476. unqualified restraints void, 473. unreasonable, cases where restriction held to be, 480. RETAINER: of barred debt by executor, 776. RETURN MAIL: meaning of, as a condition in offer, 29, n. 31. REVENUE LAWS, foreign, treatment of, 431. REVERSION: sale of: when rent or covenants run with, 298. person in dependent position, present rule as to sale by, 764. undervalue, voidable for, under old law, 757. development of the doctrine, 758. its abrogation by 31 Vict. c. 4, 759. REVOCATION: after part performance of consideration for unilateral contract, 34, n. 39. commvinication of, 30. death of proposer, revocation by, 42; 106, n. 61. insanity as ground for, 42. of general offer, 20; 23. proposal, when in time, 25. sealed proposal is ineffectual, 28, n. 28. power of, in voluntary settlements as bearing upon validity, 739. tacit, 32. REWARD: offer of, 13, n. 12; 21. revocation of offer for, 23. OT-t INDEX. RIGHT OF ACTION: discharge of, 812. (listingiushed from defence, 361. ROMAN LAW: causa in, 180. classification of contracts in, Note E, 902. corporations, treatment of, in, 126. influence of, on early English law of contract, 149. rescission in, 346. stipulation in, 150. ROYAL MARRIAGE ACT, 291. SALARIES: assignment of, 440. SALE: of future specific product, contract discharged by failure of produce, 539. mere expectancy, valid by English law, otherwise by civil law, 459. SALE BY AUCTION. See AUCTION. SALE OF GOODS: by description, 652. delivery obtained by false pretences without any contract, 123, n. 98; 717. Frauds, Statute of, as to, 178. fraudulent, eflfect of, 707; 708, n. 29; 716. horses, sale of, in market overt, 183. infant, sale of goods to, not necessaries, void Ity Infants' Relief Act, 69. instalments, default in delivery of, 327. lien revives, when credit expires, 324, n. 8. mistake, how sale affected by, 591; 607; 609; 612; 619. price not recoverable where goods sold for unlawful purpose, 485. purchase by one not meaning to pay is fraud, 679. purchase of property already one's own, 526; 615. rescission of, for breach of contract, 335. sample, sale by, 619. mistake in, 619. time, whether of essence, 628, n. 88; 629, n. 91. warranty or condition upon, 607 ; 652. SALE OF GOODS ACT, 1893: as to liability of infant for necessaries, 76. note or memorandum, 178. revival of lien under, 324, n. 8. SALE OF LAND: auction, sale by, employment of puffer, 684. Frauds, Statute of, as to, 172. infant, sale by, voidable, 62. INDEX. 9T5 SALE OF LAND — Continued: misdescription of thing sold distinguished from fundamental error, 611. on, effect of, 662. option of, or agreement for re-purchase, 631. parcels, mistake as to, 600, 611. price, mistake as to, 605. purchase of property already one's own, 526; 615. purchaser, duty to give information in special cases, 670. rescission of, for breach of contract, 335. specific performance with compensation where misdescription proved, 633. title, effect of special conditions as to, 671. non-disclosure of latent defect in, 671. time, whether of essence, 628, n. 88. vendor's duty to give correct description, 669. And see SPECIFIC PERFORMANCE. SALE OF REVERSION. See REVERSION. SATISFACTION: by stranger, whether a bar to subsequent action on contract, 593; 840. promise conditional upon, 51, n. 59. And see ACCORD AND SATISFACTION. SEAL: acceptance of contract under, whether necessary, 6, n. 3. accord and satisfaction of contract under, 835. authorized alteration of contracts under, 855. building society, seal of, must bear registered name of society, 160. companies required by statute to use their proper seal, 160. contract for the benefit of third person under, 276. corporate, equivalent to signature in bills and notes, 144; 293. transferable debentures under, negotiable, 145. necessity of, in contracts by corporations, 159. director, private seal of, use of, on behalf of company, 160. legislation as to, in the United States, 217, n. 25. misapplication of, corporate, 147. private, 151. offer under, is irrevocable, 28, n. 28. release requires, 813. rescission of contract under, 344 ; 825. scroll as a, 160, n. 5. tearing off, destroyed deed when, 845; 851, n. 91. voluntary contract under, 216. And see BOND. SEAMEN: wages of, not insurable at conunon law, 463. SEDITIOUS PUBLICATIONS. See IMMORAL PUBLICATIONS. 976 INDEX. SEPARATE ESTATE: cassation of coverture, effect of, 891. debts contracted before marriage, liability for, 893. " engagement," how far bound by ordinary rules of contract, 894. engagements, general, rules as to, 888. equitable doctrine of, 94. Limitation, Statute of, analogy of, wliether applicable to claims against 90; 895. origin of separate use, 886. power of binding separate estate, earlier doctrines as to, 886. quasi-contracts, whether liable on, 895. specific performance against, 890. SEPARATION: judicial; effect on wife's capacity of contracting, 93. SEPARATION DEED: agreements for, between husband and wife alone, 92. children, custody of, provisions for, 462. effect of, on special points, 416. future separation, agreement for, void, 418. reconciliation, deed avoided by, 413. proviso for, void when parties not lawfully married, 413. validity of, 414. void, if procured for fraudulent purpose, 678. SERVICE: contract of, dissolved by death of either party, 535; 543. contract of, not assignable, 595. infant's contract of, 61; 67, n. 14; 74; 81. liability for, when contract within Statute of Frauds, 789, n. 29. no obligation to pay for, if originally gratuitous 11, n. 8; 200. recovery of, value of, when contract repudiated, 336. SET-OFF: distinguished from compensatio of Roman law, 777. barred debt cannot be, 776. SETTLEMENTS: deceased wife's sister, settlement in contemplation of marriage with, void, 413. disclosure, duty of, in negotiations, 673. infant, settlement by, 65; 70; 79; 81. " in fraud of marital right," 392. post-nuptial, how far supported by informal ante-nuptial agreement, 792. reformation of, according to previous articles, 642. And see INFANTS and VOLUNTARY DEED OR SETTLEMENT. INDEX. 977 SHAREHOLDER: infant may be, G3. and is liable for calls if shares not disclaimed, 64; 73. married woman may be, 892, n. 8. owning all shares is not owner of corporate property, 125, n. 99. prospectus, only original shareholders entitled to rely on, 703. ratification by assent of, 137; 900. repudiation of shares by, 602; 713; 719. cannot repudiate after acts of ownership, 708. or after change in constitution of company, 713. or after winding-up, 719. diligence of shareholder essential, 723. rescission of contract by, on ground of misrepresentation, 676. right of, to restrain company from acts not warranted by its constitu- tion, 134; 896. And see COMPANY. SHARES: agreement that shares shall be considered full paid is fraudulent, 719, n. 48. numbers, error in, not material, 002 purchase of, by mistake as to nature or identity of shares, 592, n. (/) ; 598, n. 51; 602. repudiation of, 602; 713; 719; 723. sale of, after winding-up, not enforceable, 613; 618. subscription for, released by change of purpose of corporation, 135, n. 11. transfer of, 184; 296. invalid when directors' consent obtained by fraud, 686. And see COMPANY; CORPORATION; SHAREHOLDER. SHIP: transfer of, 183. SIMONY: purchase of next presentation, 911. SLAVERY: American opinions as to effect of abolition of, on prior contracts, 420. incapacity of slaves to contract, 58, n. 1. contract for sale of slaves in slave country, not void in England, 509. statutes against slave trade, 912. "SLIP": in marine insurance, effect of, 166; 795. recognized for collateral purposes, 796. statutory enactments relating to, 795. SOCIAL DUTY: whether agreement against, void, 464. 62 978 INDEX. SOLICITOR: agreements with client: champerty, 449. cannot purchase subject-matter of suit, 455. client, presumption of influence in contracts with, 736. costs, special agreement Avith client as to, 806. time for suing for, 801. purchase by, from client, 736. of subject-niatter of suit by, 455. Solicitors' Remuneration Act, 1881, 806. statutes aflfecting, 912. uncertificated, costs of, not recoverable, 800. lien, position as to, 800. SOLICITORS' REMUNERATION ACT, i88i: as to agreements between so- licitor and client, 806. SPECIFIC PERFORMANCE: ambiguous terms of contract, specific performance refused in cases of, 601. collateral "representations" inducing contract; non-fulfilment of, 919. compensation with specific performance on sale of land, 663. contract not expressing real agreement of parties, 633. description of property, when vendor can substantiate his own, 668. infant, specific performance not granted at suit of, 66. nor, since Infants" Relief Act, of any contract made during in- fancy, 71. married woman, separate estate, specific performance against, 890. misdescription : specific performance at suit of either party where vari- ance not substantial, 664. specific performance at purchaser's option where substantial and capable of estimate, 664. where substantial and not capable of estimation, option only to rescind or to affirm unconditionally, 666. mistake as a defence to, 633. non-disclosure as a defence to, 683, n. 55. of contract of heir or devisee, 459, n. 24. of contract to make a will, 467, n. 35. of rectified contract in suit for rectification, 639, n. 98. parol addition to or variation in terms of agreement, 633. purchaser bidding for wrong lot, 600. separate estate of married woman as enforcing and being subject to, 890, undervalue, whether specific performance can be refused for, alone, 752. voluntary deed not subject of, 218. SPIRITS: statutes affecting sale of, 912. SPIRITUAL INFLUENCE: its relation to undue influence, 746. treatment of, by French law. Note L., 922. INDEX. 979 STAMPS: foreign laws as to, effect of, 433. promissory note, bearing insufficient 8tan-.p, not admisBible receipt, 799, n. {x). stamp duties in general, 798. xuistamped document, when admissible as evidence, 798. variation of contract by subsequent unstamped agreement, 798. STATUTE OF FRAUDS. See FRAUDS, STATUTE OF. STATUTE OF LIMITATION. See LIMITATION, STATUTES OF. STATUTES: particular occupations, &c., regulated by, Note G., 909. prohibitory, construction of, 397. policy of, 398. " STIFLING PROSECUTION," 440. STIPULATION: in Roman law, 150. STRANGER: alteration by, 847; 848; 852. satisfaction of contract by, whether it bars action, 593. to contract, cannot sue on it in England, 233. can in United States, 237. undue influence exerted by, 768. SUBSCRIPTION: charitable, consideration for, 186, n. 3; 255. for stock, released by alteration of object of corporation, 135, n. 11. SUICIDE; promise conditional upon, 376. SURETY: addition of another, to contract, 862. discharge of: by subsequent dealings between creditor and debtor, 382. by failure to notify of misconduct of person guaranteed, 385, n. 27. by misrepresentation or concealment on part of creditor, 659. entitled to benefit of securities, 385. information as to real nature of transaction, 660. but creditor not bound to volunteer information, 662. "SURPRISE": whether a ground of relief against contracts, 765. SURRENDER. See CANCELLATION AND SURRENDER. TALLIES: use of, 156. TELEGRAPH: communication of acceptance by, 36; 39, n. 42. TESTATOR: agreement to influence, void, 466. 980 INDEX, THIRD PARTIES: cannot sue on contract in England, 233. can in United States, 237. fraud on, vitiates contract, 376. not presumed, 381. instrument not rectified against interests of. G41. And sec BENEFICIARY. "THIRD PERSON": meaning of, 221. undue influence exerted by, 768. And see BENEFICIARY; STRANGER. TICKETS: nature of, 53. TIME: termination of ofTer by lapse of, 28, n. 28; 29. Avhen of essence of contract in equity, 626. may be made so by express agreement, 628. TIME-TABLE: efifect of statement in, 15. TIPPLING ACT: small debts for spirits made not recoverable by, 807. TORT: agent liable for his own, 703. agreement to commit, is void, 376. " fomided on contract," infant not liable for, 82. liability of corporations in, 129. waiver of, 707, n. 27. TRADE: agreements in restraint of. See RESTRAINT OF TRADE. contracts of corporations in course of, need not be under seal, 161. TRADE UNIONS: agreement for strike not enforceable, 473. but not a criminal offence by the common law, 473, n. (s). certain agreements of, lawful but not enforceable, 808. TRADING WITH ENEMIES: contracts dissolved or suspended by war, 427. neutral trade with belligerents not lawful, 431. without license from crown, illegal, 426. TREES: v.hether sale of, within Statute of Frauds, 173, n. 14. TRESPASS: agreement to commit, void, 376. TRUST: agreement to commit breach of, void, 376. assignment of, 280. how fai in the nature of contract, 230. INDEX. 981 TRUSTEE: cannot purchase trust property at auction, 387, n. 30. liability of one signing as, 122, n. 95. may purchase from ce^ui que trust, when, 387, n. 30. must account to cestui (jue trust notwithstanding collateral illegality, 498. be impartial as between cestuis que trust, 748. notice of assignemnt to, 283. ULTRA VIRES: effect of corporate transactions which are, 139, n. 16; 143, n. 17. UNDERVALUE: does not itself avoid contract, but may be evidence of fraud, &c., 749. importance of, in attemped rescission, 749. whether specific performance can be refused for, 752. UNDUE INFLUENCE: acquiescence in cases of, 769. age of person conferring benefit not material, 739. captation, doctrine of, in French law, Note L., 921. " catching bargains," rules of equity as to, 759. confirmation in cases of, 769. delay in cases of, 769. doctor and patient, presumption of influence in transactions between, 735. equitable doctrine of, 732. expectant heirs, protection of, 755. family arrangements, no presumption against, 743. father and son, transactions between, presumption of influence, 735 ; 740. fiduciary relation, duty of persons in, 740. undue influence apart from, 747. gifts, voluntary, 737; 768. heirs and reversioners, protection of, 755. husband and wife, presumption of influence in transactions between, 735. illicit relations, presumption of influence in transactions between parties living in, 735, n. 16. parent and child, relation analogous to, 744. presumption of influence, evidence required to rebut, 740. from certain relations, 734. proof, burden of, 734. rescission of contract for, 767. reversionary interests, sale of, by persons in dependent position, 764. reversioners, protection of, 755. settlements, voluntary,^ when set aside, 738. solicitor and client, relations analogous to, 745. purchase by, from client, 740. spiritual influence, 746. stranger to contract, whether undue influence material if exerted by, 768, " surprise " as evidence of, 765. 982 INDEX. UNDUE INFLUENCE — Continued : undervalue, how far material, 749. voluntary settlements, when set aside, 738. wills, presumption does not extend to, 7.36, n. (i). And see DURESS; PUBLIC POLICY. UNILATERAL CONTRACTS: communication of proposal in, 21, n. 21. consideration of which is forbearance, 213, n. 22. definition of, 21, n. 21; 35, n. 40. name introduced in our law, 35, n. 40. revocation of, after, for, 34, n. 39. UNLAWFUL AGREEMENTS: agent must account to principal notwithstanding collateral illegality, 498. auction, agreement to refrain from bidding at, 470, n. 36. bond with unlawful condition is void, 492. classification of, 373. compounding oflfence, 440. conflict of laws as to lawfulness, what local law governs, 506. in time, contract dissolved by performance becoming unlawful, 514. consideration, unlawful, avoids whole agreement, 483. corporation, prohibited acts of, .141, n. 16. creditors, agreement in fraud of, 377; 504. custody of children, agreements as to, 461. dealings by agent within scope of agency on his own account, 386. dealings by trustee in regard to trust property, 387. evidence, extrinsic, illegality may always be shown by, 492. for influencing legislation, 434. for the construction of a railroad through a town, 377, n 6; 437, n. 94. for the erection of a public building in a specific place, 377, n. 6; 436, n. 94. for the sale of corporate offices, 376, n. 6; 439, n. 96. for the sale of public offices, 438. ignorance of faots making transaction unlawful, 495, n. 54. of law, how far material, where immediate object not unlawful, 494; 516. immediate object, where unlawful, avoids whole agreement, 484. indemnify, agreement to, from consequences of unlawful act, 495, n. 54. insurance void where voyage illegal to knowledge of owner, 489. intended unlawful use of subject-matter of contract, 485. innocent party may rescind on discovering such intention, 4S7. intention, unlawful, must be shown to have existed at date of agreement where immediate object not unlawful, 473. judgment on, validity of, 492, n. 51. knowledge of other party's intent to make unlawful use of property, 485. law at date of agreement determines validity, when, 514. INDEX. 983 UNLAWFUL AGREEMENTS — Continued : lease for unlawful purpose, 486, n. 42; 487, n. 45". license, transactions without required, 802. maintenance and champerty, 449. marriage, agreement in restraint of, 464. within prohibited degrees, contract for, 395. morals, agreements contrary to, 410. nuisance, agreement to complete, 374. offence, agreement to commit, 374. partnership, accounting in case of illegal, 500, n. 60. payments under, when recoverable, 496. can always be recovered when agreement not executed, 501. unless agreement criminal or immoral, 501. to agent, can be recovered by principal, 498. pledge, to secure illegal demand not recoverable without payment, 498, n. 57. presumption of unlawful intention where agreement illegal, 496. promises, where independent, lawful ones enforceable, 482. public policy, agreement contrary to, 421. publication, immoral, agreement relating to, void, 419. restraint of marriage, agreements in, 464. of trade, agreements in, 467. seamen's wages, policy of insurance of, void, 463. security given for payments under unlawful agreement, void, 491. separation, future, agreement for, void, 418. immediate, agreement for, good, 414. settlements in fraud of marital right, 392. slaves, contracts as to, in United States, 420. contract for sale of, made and to be performed in slave state, recog- nized in English Courts, 509. statute, agreements illegal by, 397. statutes forbidding or regulating particular contracts collected. Note G., 909. See also 402. statutes prescribing conditions for conduct of a trade, 401. stifling prosecutions, 440. surety, contracts between principal debtor and creditor to prejudice of, 382. testator, agreement to influence, 460. trade, agreements in restraint of, 467. trading with enemies, 426. ulterior object, effect of illegality of, 376. wagers, 405; 421; 501. witnesses, void agreements with, 44J, n. 1 ; 445, n. 9. wrong, civil, to third person, agreement to commit, 376. And see PUBLIC POLICY. USURY LAWS: effect of repeal on subsisting loans, 515. n. 81 ; 808. repeal of, has not altered doctrine of " catching bargains," 757 ; 758. 984 INDEX. VALUE. See PURCHASE FOR VALUE WITHOUT NOTICE. VARIATION: oral, of written contract, available for defendant but not for plaintiff, 633. parol, 310; 822. VENDOR AND PURCHASER. Hee SALE OF LAND; SPECIFIC PERFORM- ANCE. VIS MAJOR: meaning of, 535. VOID AND VOIDABLE: agreement may be void Avithoiit being forbidden, or vice versa, 405. assignment of voic'.able contract, 280. confusion and distinction between these terms, 3: 8; 61. contract depending on personal skill made void, not voidable, by sub- sequent disability, 543. contract voidable if consent not free, 727. deed void in part by statute, not necessarily void altogether, 483. infants' contracts voidable, not void, 60. lunatic: contracts of, when void or voidable, 98: 103. rights and remedies of parties to void agreement, 020. VOLUNTARY COVENANT: specific performance of, not granted, 218. VOLUNTARY DEED OR SETTLEMENT: at whose suit set aside: old rule in equity, 739. deed not rectified against grantor, 643. French law, 922. impeachment of: burden of proof, 738. post-nuptial settlements, 792. readily set aside, 739. revocation, power of, not necessary to validity, 739. undue influence, presumption of. 738. And see UNDUE INFLUENCE. WAGERS: authorities as to, 912. contests of speed for purses are not, 405, n. 59. deposit, recovery of, from stakeholder, 501. forn>er treatment of them at common law, 421. loans to pay lost, are valid, 409, n. 64. options are not, 408, n. 63 prom.issory note given for, treated as without consideration, 407. purchases on margin are not necessarily, 408, n. 63. purchases or sales with intent not to deliver are, 40S, n. 63. valid where made not enforceable where illegal, 508, n. 69; 512; cp. 511. void as against public policy in America. 405. n. 60. void by statute, but not illegal in England, 405; 421. INDEX. 985 WAGES: statutory enactments as to payment of, 913. WARRANTY: effect of, as distinguished from condition, 656. express, on sales of goods, 652. implied, of agent's authority, 119. in contract to marry, 120, n. (f). in sales of goods, 655. in sales of negotiable paper, 654, n. 5. representations amounting to, 652. rescission for breach of, in sales of goods, 607. sub-purchaser cannot enforce, 208, n. 93. WEIGHTS AND MEASURES: statutes regulating, 913. WILL: contract to make disposition by, lawful, 466. covenant not to revoke, not broken by subsequent marriage, 466. mistake: cannot be rectified, but general intention n'.ay take effect against particular words, 644, Note I.; 914. execution of wrong document wholly inoperative, 587, n. (o). testator, agreement to influence, void, 466. undue influence, presumption of, never applied to, 736, n. (i) , WINDING-UP: of insurance companies, application of prohibitory stamp laws to poli- cies, 797. right to proceed with creditor's petition for, not saleable, 456. secret agreement for conduct of, void, 445. shares cannot be repudiated after, 719. WITNESS: agreement to pay, for evading service, void, 441, n. 1. conditional on success void, 445, n. 9. agreement to procure, to swear to facts void, 445, n. 9; 453. WRITING: agreements in, not varied by parol evidence, .?10. oral variation admitted as defence to specific performance, 633. oral variation not admitted to obtain performance of contract as varied. 633. but may be construed by evidence of special meaning of terms, 314. or supplemented by customary terms, 315. contracts in, not a special class in English law, 198, n. (0. variation of, by parol, 310; 822. when oral agreement preliminary to, is itself a contract, 46. And see FRAUDS, STATUTE OF. YEAR: agreements not to be performed within, 175; 784; 789, n. 29. [Whole Number of Pages 1139.] University of California Library Los Angeles This book is DUE on the last date stamped below. UCLA LAW LIBRARY Rf^CEIVED SEP 1 1 1995 LAW LIBRARY tNIVERSITY OF CALIFORNIA U>S ANGELES UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 858 113 4 y of Cal: 3rn Regie iry Facili