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 PRINCIPLES OF COiNTEACT: 
 
 A TREATISE ON THE 
 
 GENERAL PRINCIPLES CONCERNING THE VALIDITY 
 
 OF AGREEMENTS IN THE LAW OF ENGLAND. 
 
 ifouttJ) icDttion. 
 
 BY 
 
 FREDERICK POLLOCK, 
 
 "I 
 
 OF LINCOLN'S INN, ESQ., EAREISTER-AT-LAW ; 
 
 CORPUS PROFESSOR OF JURISPRUDENCE IN THE UNIVERSITY OF OXFORD ; PROFESSOR OF COMMON LAW 
 
 IN THE INNS OF COURT ; LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE ; AND 
 
 HONORARY DOCTOR OF LAWS IN THE UNIVERSITY OF EDINBURGH. 
 
 " This notion of Contract is part of men's common stock even outside tlie 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 iirevail everywhere. Nevertheless 
 we are yet far short of this." — Savigny, System des heutigen romischen Eechts, 5 140. 
 
 LONDON : 
 STEYENS AND SONS, 119, CHANCERY LANE, 
 
 1885
 
 T 
 
 
 i.oNnoN ; 
 
 PBITTKI) IlY r. r. IlOWOnTIt, 5 — lljORKAT NEW STUEKT, FETTER LANE, E.G.
 
 TO THE EIGHT HONOURABLE 
 
 LORD JUSTICE LINDLEY. 
 
 My dear Lord Justice, 
 
 Ten years ago I dedicated to you, as my master 
 in the law, the first edition of this book, as the first fruits 
 of your teaching. The time has come when I may with- 
 out presumption take on myself to explain the meaning 
 of those words more fully than the compass of a formal 
 dedication admits. 
 
 In your chambers, and from your example, I learnt 
 that root of the matter which too many things in common 
 practice conspire to obscm-e, that the law is neither a trade 
 nor a solemn jugglery, but a science. By your help and 
 encouragement I was led to acquaint myself with that 
 other great historical system which to this day divides, 
 broadly speaking, the civilized world with the Common 
 Law; to regard it not as a mere collection of rules and 
 maxims accidentally like or unlike our own, but as the 
 living growth of similar ideas imder different conditions ; 
 and to perceive that the Eoman law deserves the study 
 and reverence of English lawyers, not merely as scholars 
 and citizens of the world, but inasmuch as both in its 
 history and its scientific development it is capable of 
 throwing a light beyond price on the dark places of our 
 own doctrine. I owe it to you and to my friend Professor 
 Bryce that, daring to be deaf to the counsels of shallow 
 
 a 2
 
 iv DEDICATION. 
 
 wisdom that miscalls itself practical, I turned from tlio 
 formless confusion of text-books and the dry bones of 
 students' manuals to the immortal work of Savigny ; as- 
 suredly the greatest production of this age in tlie field of 
 jurisprudence, nor one easily to be matched in any other 
 branch of learning, if literary form as well as scientific 
 genius be taken into account. Like one in a Platonic 
 fable, I passed out of a cave of shadows into clear day- 
 light. The vast mass of detail was dominated by ordered 
 ideas and luminous exposition. Equally removed from 
 the futile struggling of a mere handicraftsman with the 
 multitude of particulars, and from the pedantry which 
 gains a show of logical symmetry by casting out un- 
 welcome facts, the master proved, not by verbal definition, 
 but by achievements in act, that the science of law is 
 a true and living one. 
 
 Others have come and may come by other means to the 
 same sort of enlightenment. Let every one praise, as in- 
 private duty bound, the spiritual fathers to whom he owes 
 it. Blackstone, I doubt not, opened to his first hearers little 
 less than a revelation. But Blackstone, if he were with 
 us at this day, would be the first to proclaim the necessity 
 of doing his work over again, and doing it thoroughly 
 from the beginning. His destined successor is yet to seek ; 
 and meanwhile an English teacher of law can have no 
 higher ambition than to prepare the way, however par- 
 tially, for that successor. Title by title, and chapter by 
 chapter, the treasures of the Common Law must be con- 
 solidated into rational order before they can be newly 
 grasped and recast as a whole. 
 
 Many good and true workers are bearing their part in 
 tliis task in divers forms. Some part lias fallen to my
 
 DEDICATION. V 
 
 share ; I have performed and am performing it as best 
 I may. To be a fellow-worker with such men as Mr. 
 Justice Stephen and Mr. Justice 0. W. Holmes, and in 
 ways which they and you think not unworthy of approval, 
 is at once a privilege and a responsibility. 
 
 No man can be free from errors in design or faults in 
 execution. But every man can strive to keep his eyes 
 open for the best light he knows, his hand trained for the 
 best mastery it is capable of ; to test and verify his handi- 
 work at every step, and, where he has failed to attain 
 certainty, frankly to confess his doubt or ignorance. These 
 things I have striven to do ; and if any word of mine, 
 spoken or written, is of the spirit which helps those who 
 come after to do them better, it will be of little account 
 whether the letter of it stands or falls. With such skill 
 as I have it will still be my endeavour to spread abroad 
 the gladsome light of jurisprudence into which you led 
 me (to speak with Coke, an author even now read by some 
 on both sides of the Atlantic who do not believe that the 
 law of England and its history exist for the sake of either 
 examinations or practice cases) ; and I think I may guess 
 without rashness that there is no kind of retm'n you 
 would more willingly accept. 
 
 I remain, 
 
 Your friend and pupil, 
 
 FREDERICK POLLOCK. 
 
 Lincoln's Inn, 
 
 Easter, 1885.
 
 PREFACE TO THE FOURTH EDITION. 
 
 The law of Contract may be described as the endeavour 
 of tlie 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. Accordingly 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 will 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 be- 
 cause 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 got the thing he wanted, and 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 enforce- 
 able? 
 
 To examine these questions is the object of the present 
 book. The importance and difficulty of the first of them 
 depends on the fact that men can justly rely on one
 
 Viii PREFACE TO THE FOURTH EDITION. 
 
 another's intentions, and courts of justice hold them 
 bound to their fulfilment, only when thej have been 
 expressed in a manner that would convey to an indifferent 
 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 dealings in the particular case 
 contained or amounted to the promise alleged to have 
 been made and relied upon. For this purpose the forma- 
 tion of an agreement has to be analysed, and on some 
 points doubts have to be resolved by a more or less 
 arbitrary rule. Our first chapter is occupied with the 
 discussion thus rendered necessary. 
 
 The rest of the book treats of the conditions on which 
 the law will enforce an agreement made in terms, when 
 its existence in fact is ascertained ; conditions which 
 depend for the most part on rules of general policy above 
 the will and control of the parties. A brief summary of 
 the questions presented under these heads may here be 
 given. We consider the capacity of the parties, as limited 
 by status, enlarged by agency, or artificially created by 
 the law of corporations (Ch. II.) ; the requirements of the 
 law as to form in particular kinds of contracts (Ch. III.), 
 and consideration (Ch. IV.) ; and upon what persons rights 
 or duties may be conferred by the agreement (Ch. V.). 
 Passing on from these general elements, we have to note 
 in what cases the matter of an agreement, being unlawful 
 (Ch. VI.), or impossible (Ch. VII.), prevents the law from 
 enforcing it. Then we deal with conditions that so affect 
 the consent or apparent consent of the parties as to deprive 
 it wholly or partially of effect. In the cases conventionally 
 classed under the head of Mistake (Ch. VIII.) there is,
 
 PREFACE TO THE FOURTH EDITION. IX 
 
 notwithstanding first appearances, no true consent, or a 
 consent wrongly expressed. In another group of cases the 
 consent of one party may be not binding on him by reason 
 of misrepresentation or fraud (Chaps. IX. and X.), coer- 
 cion, or undue influence (Ch. XI.). Lastly there arc a 
 certain number of anomalous cases, the results, and gene- 
 rally undesigned results, of peculiar legislation or usages, 
 in which an agreement is not an enforceable contract, and 
 yet is something more than a bare promise having no 
 legal eifect at all (Ch. XII.). When we come to the con- 
 struction, performance, and enforcement of contracts, ques- 
 tions of another order arise. These are not dealt with in 
 the present work except incidentally, or as they may occur 
 in the debateable ground between rules of law and rules 
 of construction. 
 
 The present Edition bears to the third about the same 
 relation as the second to the first. It has been prepared 
 in the midst of work on another subject, and few changes 
 have been made beyond those which were called for by 
 recent cases and statutes. As far as possible I have en- 
 deavoured to avoid increasing a bulk which now touches 
 the limit of convenience for a single volume. 
 
 Thus I have thought myself justified, in view of the 
 Married Women's Property Act of 1882, in relegating 
 to the Appendix the details of the equitable doctrine of 
 Separate Estate. I have done the like with the historical 
 discussion of Consideration ; inasmuch as, whatever ex- 
 planation be right (and the problem now seems to me 
 more difficult than it did ten years ago), the modern law 
 stands on its own footing. 
 
 At some future time I hope to expand this work into a 
 complete treatise on the general part of the law of Con-
 
 X PREFACE TO THE FOURTH EDITION. 
 
 tract ; in other words, to include the theory of Interpre- 
 tation, Performance, and Discharge. The book thus recast 
 should be accompanied or followed by a concise volume for 
 the use of students, in which the outlines of the subject 
 would be exhibited in a simpler form, and free from 
 discursive and controversial matter. For the present, 
 however, I must be content to have kept the book abreast 
 of the needs of the present day within the lines of its 
 original and more limited plan. 
 
 Mr. Reginald J. Smith, of the Chancery Bar, has kindly 
 undertaken for me the skilled but ungrateful office of 
 completing the Table of Cases with references to all the 
 current Reports. In the course of this process his obser- 
 vation has detected a certain number of errors, which by 
 slips of the pen or the press had crept into former editions 
 and remained uncorrected. These are now set right either 
 in the text or in the Addenda, besides the Table itself, in 
 which all the corrections are embodied. 
 
 F. P. 
 
 13, Old Sqxjaee, Lincoln's Inn, 
 Easter, 1885.
 
 TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 Ageeement, Peoposal, and Acceptance. 
 
 Definitions of agreement, &c. 
 
 Agreement : nature of consent required 
 
 Obligation 
 
 Ways of declaring consent 
 
 Promise . , 
 
 Contract . . 
 
 Void agreements 
 
 Voidable contracts 
 
 Eules as to proposal and acceptance 
 
 Express and tacit contracts, and quasi-contracts 
 
 Proposals to unascertained persons (contracts by offer of 
 
 &c.) 
 
 Discussion of cases 
 
 Difiiculties considered . . 
 
 Theory of floating obligation inadmissible . . 
 
 Other kinds of general projDOsal 
 
 Revocation of proposal 
 
 Determination of proposal 
 
 Commimication of revocation 
 
 JDichinson v. Bodcls considered 
 
 Can there be double acceptance ? 
 
 Continental opinions . . 
 
 Communication of acceptance 
 
 Contracts by correspondence . . 
 
 Artificial theories on the subject 
 
 State of English authority 
 
 Effect of death of proposer . . 
 
 Certainty of acceptance 
 
 Agreements in terms where consent not final 
 
 Certainty of terms of agi-eement , . 
 
 Illusory promises 
 
 Construction of tacit acceptances 
 
 Promises by deed may bind without acceptance 
 
 eward, 
 
 PAGE 
 
 1 
 2 
 3 
 4 
 6 
 7 
 7 
 8 
 9 
 9 
 
 12 
 14 
 17 
 19 
 20 
 23 
 25 
 26 
 27 
 28 
 30 
 31 
 32 
 33 
 35 
 37 
 38 
 41 
 42 
 44 
 46 
 48
 
 XU TABLE OF CONTENTS. 
 
 CHAPTER II. 
 
 Capacity of Parties. 
 
 Variations in personal capacity 
 Artificial persons 
 Limitations of capacity 
 
 1. Infants. General statement .. 
 Contracts generally voidable, not void : and qit. whetlier in any 
 
 case void at common law . . 
 Special classes of contracts considered on this point 
 Avoidance of infant's contract 
 
 Infants' Eelief Act, 1874 
 
 Liability on obligations incident to property 
 
 On beneficial contract . , 
 
 Por necessaries . . 
 
 What are necessaries . . 
 
 Certain contracts of infants binding- by custom 
 
 By statute 
 
 Liability of infants on wrongs collateral to contract 
 
 In equity, on representations of full age . . 
 
 Subsequent contract after full age prevails 
 
 2. Married Women. Can contract only as to separate property 
 lus mariti and survivorship . . 
 Cannot revive barred debt by acknowledgment 
 Exceptions at common law . . 
 
 Custom of London as to married woman trading alone . . 
 Agreements for separation between husband and wife alone 
 Statutory exceptions : judicial separation, &c. 
 Ec^uitable doctrine of separate estate 
 Married Women's Property Act, 1882 
 
 3. Lunatics and Drunken Persons. Undisputed points 
 History of opinions as to contract of lunatic, &c., in general 
 Modem law : contract not void but voidable 
 Indian Contract Act . . 
 
 4. Convicts, ^-c. 
 Extension of capacity . . 
 
 1, Ayencij . . 
 
 Authority of Agent . . 
 Contracts by authorized agents 
 When agent known to be such, there is contract with principal 
 If principal named, prima facie no contract with agent 
 If principal not named, prima facie there is contract with agent 
 Tliese rules subject to evidence of contrary intention 
 When agent not known to bo such, there is generally contract 
 with undisclosed principal 
 
 page 
 49
 
 TA15LE OF CONTENTS. 
 
 XIU 
 
 Exceptions to and limits of the rule 
 
 Rights of other contracting- party . . 
 
 Professed agent not having authority cannot sue on the contract 
 
 if a responsible principal has been named 
 Nor be sued on it 
 
 But may be sued on implied warranty of authority 
 Where no principal named, or one who could not be rcsponsibL 
 
 professed agent is treated as principal 
 Indian Contract Act on contracts of agents 
 Artificial Persons 
 Nature of artificial persons . . 
 Corporations 
 
 Capacities of corporations in themselves 
 As Limited by positive law 
 Conflicting theories of corporate powers . 
 Application of partnership law 
 Public policy and interests of the public . 
 Decision of House of Lords on Companies Act, 1862 
 Corporations cannot bind themselves by negotiable instruments 
 
 explanations of this . . 
 Exceptions 
 Corporations bound by estopjiel, &c. 
 
 PAGE 
 
 101 
 101 
 
 104 
 
 lOG 
 lOG 
 
 107 
 110 
 110 
 110 
 112 
 113 
 118 
 119 
 121 
 124 
 127 
 
 128 
 130 
 131 
 
 CHAPTER III. 
 
 Form of Conteact. 
 
 Position of informal contracts in ancient law 
 
 Formal and informal contracts in Roman law 
 
 Similar doctrine of old English law in Bracton, &c. 
 
 Remedies on contracts : debt on covenant or simple contract 
 
 Action of account 
 
 Introduction of assumpsit to supply remedy on executory agree 
 
 ments , . 
 Modern law : requirements of form exceptional 
 Contracts of Record . . 
 Contracts of Corporations : old law 
 Modem exceptions to requii'ement of seal . . 
 Trading corporations : Contracts in course of business . . 
 Non -trading corporations : Contracts necessary and incidental 
 
 corporate pm-poses . . 
 Municipal corporations, &c. . . 
 Appointments of officers 
 
 to 
 
 133 
 133 
 138 
 139 
 141 
 
 142 
 144 
 145 
 
 146 
 148 
 149 
 
 151 
 152 
 153
 
 SIV 
 
 TABLE OF CONTENTS. 
 
 Executed contracts with corpoi'ations 
 Statutory forms of contract . . 
 Summary . . . . . . 
 
 Kegotinhle Instriimoits . . 
 
 Statute of Frauds 
 
 Guaranties 
 
 Interests in land 
 
 Agreements not to be performed within a year 
 
 Sale of goods . . 
 
 The ' ' note or memorandum " 
 
 Marine Insurance 
 
 Transfer of Shares 
 
 Acknowledgment of statute-barred debts . . 
 
 PAGE 
 
 154 
 
 155 
 156 
 157 
 157 
 158 
 IGO 
 160 
 161 
 161 
 164 
 165 
 165 
 
 CHAPTER IV. 
 
 Consideration. 
 
 The conception peciiliar to English law . . . . 
 
 Promises to perform duties already existing 
 
 Consideration for discharge of contract 
 
 Eor variation of contract 
 
 Forbearance to sue 
 
 Compromises 
 
 Treatment of gratmtous contracts under seal in equity 
 
 Imperfect gifts . . 
 
 167 
 176 
 179 
 180 
 181 
 182 
 183 
 184 
 
 CHAPTER V. 
 
 Persons affected by Contract. 
 
 Preliminary . . . . 
 
 Definitions and rules . . 
 
 1 . Parties must be certain 
 
 2. Third persons not bound 
 Apparent exceptions . . 
 Novation 
 
 3. Third persons not entitled by the contract itself , 
 Ai)parent exceptions . . 
 
 Trusts 
 
 Exception of certain provisions for chiLh-cn 
 
 186 
 187 
 190 
 191 
 192 
 193 
 195 
 195 
 197 
 199
 
 TABLE OF CONTENTS. 
 
 XV 
 
 I'AGK 
 
 Statutory oxceptious .. .. .. .. .. ,, ..199 
 
 Contract for benefit of tliii'd person gives him no right of action 
 
 at law 200 
 
 Authorities in equity . . . . . . . . . . , . , . 202 
 
 Third person cannot be empowered to sue for convenience of 
 parties . . . . . . . . . . . . . . , , 204 
 
 4. Assignment of contracts .. .. .. .. .. ..206 
 
 Notice to debtor 209 
 
 Assignment " subject to equities " .. .. .. ,. ..211 
 
 Assignment free from equities by agreement of parties : transfer- 
 able debentures .. .. .. .. ,, .. .. 214 
 
 But agreement of parties cannot make contract nccjotinble , . 216 
 
 Negotiable instruments .. ., ., .. .. ..217 
 
 Eights of io«rr>/f holder 218 
 
 What instruments may be negotiable . . . . . . . . 220 
 
 How instruments may cease to be negotiable .. .. ,. 221 
 
 Transferable shares . . . . . . . . . , . . . . 222 
 
 Obligations attached to property . . , . , . . . . , 223 
 
 Covenants numing with land . . . . . . . . . . 224 
 
 Bills of lading 227 
 
 Conflict between common law and equity as to burden of cove- 
 nants running with land . . . . . . . . . . . . 227 
 
 CHAPTER VI. 
 
 TJNiiAwrui Agreements. 
 
 Of unlawful agreements in general, and their classification . . 232 
 
 A. Contrary to positive law . . . . . . . . . . 235 
 
 Agreements to commit an offence .. .. .. .. ..235 
 
 Agreements -wTongful against third persons . . , . . . 237 
 
 Fraud on creditors . . . . . . . . . . . . . . 238 
 
 Dealings between creditor and principal debtor to prejudice of 
 
 surety.. .. .. .. .. .. .. .. .. 241 
 
 Dealings by agent, executor, &c., against his duty . . . , 244 
 
 Settlements in fraud of marital right . . . . . . . . 247 
 
 MaiTiages within prohibited degrees . . . . . . . . 249 
 
 Royal Marriage Act . . . , . . . . . . . . . . 250 
 
 Agreements illegal by statute .. .. .. .. ..251 
 
 Rules for construction of prohibitory statutes . . . . . . 253 
 
 When agreements may be not void though forbidden, or void 
 
 without being illegal . . . . . . . . . . . . 257 
 
 Wagers . . . . . . . . . . . . . . . . . . 258
 
 XVI TABLE OF CONTENTS. 
 
 B. Agreements contrary to morals or good manners . . 
 Agreements in consideration of illicit cohabitation . , 
 Validity of separation deeds . . 
 Agreement for future separation void 
 Publication of immoral or seditious works is not merely immoral 
 
 but an offence 
 
 C. Agreements contrary to public policy 
 Connexion of the doctrine with the common law as to wagers 
 Modem extent of the doctrine : Erjerton v. Broicnlow 
 Public pohcy as to external relations of the State 
 Trading with enemies . . 
 Effect of war on subsisting contracts 
 
 Negotiable instruments between England and hostile covmtry 
 Hostilities against friendly states . . 
 Trade with belligerents not imlawful 
 Foreign revenue laws . . 
 Public policy as to internal government : attempts to influence 
 
 legislation, &c., by improper means 
 Sale of offices, &c. 
 Assignments of salaries 
 
 " Stifling prosecutions" and compounding offences 
 Agreements for reference to arbitration : extent of their validity 
 
 at common law, and by C. L. P. Act, 1854 
 Maintenance and champerty . . 
 Rules as to champerty 
 Purchase of subject-matter of suit . . 
 Statute of Henry VIII. against buying pretended titles . . 
 Mamtenance in general 
 Public policy as to duties of individuals . . 
 Agreements as to custody of children 
 Discretion of equity . . 
 Custody of Infants Act 
 Insm-ance of seamen's wages 
 Agreements against social duty 
 Public policy as to freedom of individual action . . 
 Agreements in restraint of marriage 
 A'Tecmcnts to influence testators 
 Agreements in restraint of trade 
 Partial restraint admitted 
 
 History of the doctrine 
 
 What agreements in partial restraint arc valid, and of the 
 
 alleged nilc as to limits of space . . 
 
 Table of decisions since 1854 
 
 Contracts to servo for life or exclusively 
 
 J). Judicial treatment of unlawful agreements in general 
 Independent promises, where some lawful and some not . . 
 
 PAGE 
 
 260 
 2G2 
 264 
 268
 
 TABLE OF CONTENTS. XVU 
 
 PAGE 
 
 Wliere consideration or immediate object unlawful . . . . 321 
 
 Unlawful ulterior intention 322 
 
 Comiexion with unlawful design ali'eady executed . . . . 325 
 
 Securities for payment under unlawful agreement are void . . 327 
 
 Extrinsic evidence of illegality . . . . . . . . . . 328 
 
 Specific unlawful intention, liow shown or contradicted , . . . 329 
 
 ^Vlaen payments can be recovered : rule as to party in 2mri delktu 332 
 
 Exceptions : duty of agents to principal unaffected . , . . 333 
 
 Money recoverable where agreement not executed . , . . 335 
 
 "Wliere the payment was compulsory . . . . . . . . 336 
 
 In equity where cu-ciunstances of fraud, &c., as between the 
 
 parties 337 
 
 Final statement of the rule and qualification . . . . . . 338 
 
 Conflict of laws in space . . . . . . . . . . . . 339 
 
 Generally lex loci solutionis prevails . . . . . . . . . . 339 
 
 Exceptions — when a proliibitory municipal law is not merely 
 
 local 340 
 
 When agreement is immoral iiire gentiian . . . . . . . . 340 
 
 Treatment of slave contracts in English courts : Santos v. Illidge 342 
 Other instances of conflict of laws as to vahdity of agreement 
 
 considered . , . . . . . . . . , . . . . . 343 
 
 Ag-reements against interests of the local sovereign . . . . 345 
 
 Conflict of laws in time : subsequent illegality dissolves contract. 346 
 
 Rules as to knowledge of parties collected . . . , . . 348 
 
 CHAPTER VII. 
 
 Impossible Agreements. 
 
 Performance of agreement may be impossible in itself, by law, 
 or in fact {i.e. by reason of particiilar state of facts) 
 
 General statement of law 
 
 Agreement impossible in itself is void 
 
 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 
 
 Obligation to pay rent when prenaises accidentally destroyed . . 363 
 
 Exceptions in cases of events not contemplated by the contract. 366 
 
 Performance dependent on specific thing- existing : Taylor v. 
 
 Caldtcell . . . . . . . . . . . . . . . . 367 
 
 Appleby v. Meyers . , .. . . . , . . . . . . 368 
 
 P. b 
 
 350 
 351 
 352 
 355 
 356 
 357 
 358 
 358 
 3G0
 
 XVlll TAB1J<: OF CONTENTS. 
 
 Impossibility at date of contract from existing state of things 
 
 not kuoMTi to the parties . . 
 Sale of cargo already lost : Couturier v. Hastie 
 Covenants to work mines, &c. : Clifford v. Watts . . 
 Construction of express exceptions in certain contracts . . 
 Performance dependent on life or health of promisor : Rohinson 
 
 V. Davison . . . , 
 
 Anomalous decision on contract to marry in Ila/l v. Wright 
 Limits of rule as to personal services 
 Rights ah-eady acquired under contract not discharged by sub 
 
 sequent impossibility 
 Substituted contracts . . 
 Impossibility by default of either party: such default of promisor 
 
 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 impossible agreements . . 
 
 PAGE 
 
 370 
 371 
 372 
 373 
 
 374 
 376 
 378 
 
 378 
 379 
 
 379 
 380 
 
 382 
 384 
 386 
 389 
 
 CHAPTER VIII. 
 
 Mistake. 
 Part I. Of Misfake in General. 
 
 Classification of conditions affecting validity of consent in agree- 
 ment : Mistake, Fraud, &c. 390 
 
 A. Mistake in general . . . , . . . . . . . . 394 
 
 Generally it is in itself inoperative either to avoid civil liabilities 394 
 (Except in certain special cases, and except so far as in the case 
 
 of piu'chase for value without notice ignorance is a condition 
 
 of acquiring rights) 
 Or to take away or alter existing rights 
 Or to alter construction of contract . , 
 Saving as to variation by mutual consent . . , . 
 
 Special cases where mistake important 
 
 B. Mistake of Fact and of Law . . 
 Limits of the distinction : where certainly or probably 
 
 plicablo 
 Common mistake and rectification of instruments . . 
 Renunciation of rights . . . . , , 
 
 Recovering back money paid,, .. ,, ,, 
 
 not ap- 
 
 395 
 400 
 402 
 403 
 404 
 405 
 
 405 
 406 
 407 
 409
 
 TABLE OF CONTENTS. 
 
 XIX 
 
 Paet II. — Mistake as excluding true consent. 
 
 Division of cases under this head ,. ,, ., ., .,411 
 
 Error as to nature of transaction : ThoroHghgood''s case . . . . 413 
 
 ,, ,, ,, Foster \. Mack'mnon ., .. 414 
 
 Cases in equity . . ,. ., ., ., .. ., ., 416 
 
 Distinction as to contracts of lunatic, &c. . . . . . . . . 418 
 
 Error as to legal character of transaction . . , . . . . . 419 
 
 Error as to person of other party . . , . . . . . . . 420 
 
 Analogous doctrines : satisfaction by stranger . . . . . . 423 
 
 Personal contracts not transferable .. .. .. .. ,.425 
 
 Agency 426 
 
 Error as to subject-matter .. .. .. .. .. ..427 
 
 With regard to identity of specific thing . . . . . . . . 429 
 
 Inclusion of parcels by mistake on sale of land . . . . . . 430 
 
 Contracts to take shares exceptional , . . . . , . . 432 
 
 Error with regard to kind, quantity, &c. . . . . . . . . 433 
 
 Error in quantity or price . . . . . . . . . , . . 434 
 
 EiTor as to quality inoperative unless material and common to 
 
 both parties . . . . . . . . . , . . . . . 436 
 
 Even if error of one party known to, but not caused by, the other 438 
 Cases distinguished where misdescription of estate on sale entitles 
 
 purchaser to rescind . . . . . . . . . , . . 440 
 
 Error as to existence of subject-matter .. .. .. ..441 
 
 Purchase of one's own property . . . . . . . . . . 444 
 
 Herein of ignorance of law : Cooper v. riiibbs . . . , . . 445 
 
 Assig'nments of leases for lives .. .. .. .. ..446 
 
 Where only one party is ignorant of the material fact, and 
 generally where fundamental error is caused by fraud or mis- 
 representation . . . . . . . . . . . . . . 447 
 
 Where fundamental eri'or produced by misrepresentation . . 448 
 
 Error as to sample in case of sale by sample . . . . . . 449 
 
 Remedies of party to void agreement . . . . . . . . 450 
 
 Election to adopt agreement . . . . . . . . . . . . 450 
 
 Pakt III. — Mistake in expressing true consent. 
 
 Correction of mistake in expressing intention 
 Kules of construction common to law and equity . . 
 Effect given to general intent 
 Observations on evidence and construction . . 
 Rule as to exclusion of parol evidence 
 Apparent exceptions . . 
 Real exceptions in equity 
 
 i2 
 
 451 
 452 
 453 
 455 
 456 
 458 
 459
 
 TABLE OF CONTENTS. 
 
 Peculiar rules of construction in equity 
 
 Restriction of general words . . 
 
 Stipulations as to time 
 
 Indian Contract Act on making time of essence of contract 
 
 Relief against penalties 
 
 Peculiar defences and remedies derived from equity 
 
 Defence against specific performance where contract incoiTCctly 
 
 expressed by mistake 
 Effect of Statute of Frauds herein . . 
 Rectification of instruments . , 
 Oral evidence how far admissible 
 Real intention must be distinctly proved, and 
 Quasi estoppel of one party acting as other 
 
 instrument 
 Reformation of settlements . . 
 Who is entitled to have deed rectified 
 Option to rectify or set aside in certain cases 
 
 common to all parties 
 's agent m framing 
 
 PAOE 
 460 
 
 461 
 462 
 464 
 465 
 467 
 
 467 
 469 
 470. 
 472 
 473 
 
 475 
 475 
 476 
 476 
 
 CHAPTER IX. 
 
 MiSEEPEESEXTATION AND FeATJD. 
 
 Part I. — Misrepresentation. 
 
 Of misrepresentation in general 
 
 The legal effect of ' ' representations " 
 
 Conflicting views hereon 
 
 Akkrson v. 3Iaddison . . 
 
 Cases in which non-fraudulent representation can affect contx-act 
 
 Representations amounting to Warranty or Condition 
 
 Distinctions between warranty and condition on sale of goods . 
 
 Cases specially treated : Marine Insurance 
 
 Same rule not applicable to Life Insm-ance 
 
 Fire Insm-ance . . 
 
 Suretysliip 
 
 Extent of creditor's duty to sui'ety . . 
 
 Sales of land 
 
 Specific perfonnance and compensation : three classes of cases 
 
 distinguished 
 G(;noral duty of vendor to describe i^roperty correctly 
 Wilde V. Gibson considered 
 Family Settlements 
 Partnership, contracts to take shares in companies, and contracts 
 
 of promoters . . 
 Contract to marry not exceptional . . 
 
 479 
 481 
 483 
 484 
 485 
 487 
 487 
 489 
 490 
 491 
 493 
 493 
 495 
 
 496 
 502 
 505 
 
 507 
 
 507 
 510
 
 TABLE OF CONTENTS. XXI 
 
 Paet II. — Fraud. 
 
 PAGE 
 
 !Fraud generally but not always includes misrej^resentation . , 511 
 
 Right of rescission . . . , . . . . . . . . . . 512 
 
 Fraudulent representation or concealment . . . . . . , . 513 
 
 Fraud as actionable wrong : reckless ignorance equivalent to 
 
 knowledge of untruth .. .. .. .. .. ..515 
 
 General rules of responsibility for false representation . . . . 517 
 
 Special rule as to sales by auction .. .. .. .. .. 518 
 
 Marriage an exception : not avoided by fraud . . . . . . 519 
 
 Consent of third person procured by fraud is voidable . . . . 519 
 
 CHAPTER X. 
 
 The Right of Rescission. 
 
 General rules as to rescission for misrepresentation or fraud 
 The representation relied on must be of fact 
 Not of mere matter of opinion 
 
 The representation must be such as to induce the contract 
 Effect of party misled lla^^ng means of knowledge 
 Materiality of repi'esentation 
 Contracts connected with previous fraud . . 
 Representation must be by a party to the contract 
 Representations of agents and liability of principals 
 Statements of directors and promoters 
 Agent always liable for his own wrong- 
 Representation must be in same transaction 
 Rights of party misled : option to rescind . . 
 Election how to be made 
 
 Right exerciseable by and against representatives 
 No rescission where the former state of things cannot be restored 541 
 No rescission against innocent purchasers for value 
 Distinction in cases of obtaining goods by fraud where no pro 
 
 perty passes . . 
 Repudiation of shares . . 
 Rescission must be within reasonable time, i. e. a time not such 
 
 as to show acqiiiescence 
 Special duty of shareholders in companies . . 
 Result of luifoimded charges of fraiid 
 Cancellation of instruments . . 
 
 521 
 521 
 523 
 524 
 525 
 527 
 528 
 529 
 530 
 532 
 533 
 533 
 535 
 536 
 540 
 
 544 
 
 545 
 546 
 
 547 
 550 
 551 
 652
 
 XXU TABLE OF CONTENTS. 
 
 CHAPTER XI, 
 
 DuEESs AND Undue Influence. 
 
 FAGB 
 
 I. Duress at Common Law . . . . . . . . . . . . 553 
 
 Recovery of money j^aid under compulsion . . . . . . 555 
 
 II. The eqiiitable doctrine of Undue Influence . . . . . . 556 
 
 Presumption of influence from confidential relations . . . . 558 
 
 Rules as to burden of proof : ILnnter v. Atkins . . . , . . 560 
 
 Rules as to voluntary settlements . . . . . . . . . . 56^ 
 
 Presumptions against and duties of persons in fiduciary relations 565 
 
 Family arrangements . . . . . . . . . . . . . . 568 
 
 Particular cases where influence presumed : 
 
 Relations analog'ous to parent and child . , . . . , . . 569 
 
 To solicitor and client , . . . . . . . . . . . 570 
 
 Spiritual influence .. ., .. .. .. .. .. 571 
 
 Undue influence without fiduciary relation . . , , . , 572 
 
 Duty of trustees . . . . . . .... . . . . 572 
 
 Undervalue material only as evidence . . . . . . . . 573 
 
 Whether in itself a gi'ound for refusing specific j)erformance . . 576 
 
 Exceptional protection of expectant heirs and reversioners . . 579 
 
 Old law as to sales of reversions . . . . . . . . . . 582 
 
 Act of 1867 583 
 
 Rules of equity as to " catching bargains " not affected. . . . 584 
 
 What are " catching bargains " .. .. .. .. .. 585 
 
 Bui'den of proof and tenns of relief . . . . . . . . 586 
 
 Sales of reversionary interests . . . . . . . . . . 589 
 
 " Sui'prise " and "improvidence" not substantive ground of 
 
 relief against contracts, but only evidence of fraud, &c. . , 590 
 
 Right of rescission for undue influence . . . . . . . . 593 
 
 Confirmation and acquiescence . . . . . . . . . . 595 
 
 Special questions as to relation of solicitor and client . . . . 596 
 
 CHAPTER XII. 
 
 Agheements op Imperfect Obligation. 
 
 Nature of Imperfect Obligations : Right without remedy 
 
 Remedy lost. Statutes of Limitation 
 
 Rights of (jreditor notvvitlistauding loss of remedy by action 
 
 Acknowledgment 
 
 Wliat is Hufticicnt ackno\vl(Nlgmcnt . . 
 
 Statutes of limitation belong to hxfuri 
 
 597 
 598 
 600 
 GOO 
 601 
 603
 
 TABl.E OF CONTENTS. 
 
 xxm 
 
 2. Conditions precedent to remedy not satisfied. 
 A. Statute of Frauds, s. 4 . . .... 
 
 A law of procediu'e only, not of substance . . 
 
 Residts of iuformal agreement : 
 
 Where money paid . . 
 
 Where agreement executed 
 
 Part performance in equity 
 Informal ante-nuptial agreements, and confirmation by j)0st 
 
 nuptial writing 
 Distinction of equitable estoppel 
 
 B. The " Slip " in marine insurance 
 Recognition of it for collateral purposes by modern decisions 
 Of stamp duties in general 
 
 C. Statutes regulating professions 
 Costs of uncertificated solicitors 
 Medical practitioners . . 
 
 Medical Act, 1858 
 
 Apothecaries' Act 
 
 Special questions on Medical Act 
 
 3. No remedy at all. 
 Arbitrators . . . . . . . . . . • • . . 
 
 Counsel's fees . . 
 
 As to non-litigious business, or account with solicitor, qn. 
 
 Judicial recognition of counsel's fees 
 
 Solicitors Remiuieration Act, 1881 . . 
 
 Special agreements between solicitor and client . . 
 
 Certain contracts of infants since Infants' Relief Act 
 
 Tippling Act . . 
 
 Trade Union agreements 
 
 A converse case on repeal of usury laws 
 
 Treatment of equitable obligations at Common Law 
 
 Summary of results of this chapter . . 
 
 G04 
 606 
 
 608 
 610 
 611 
 
 613 
 615 
 615 
 617 
 619 
 620 
 621 
 622 
 623 
 623 
 624 
 
 626 
 
 626 
 628 
 629 
 629 
 629 
 630 
 630 
 631 
 632 
 633 
 634 
 
 APPENDIX. 
 
 Note A. Terminology and fundamental conceptions of contract 
 
 Note B. Authorities on contract by correspondence . . 
 
 Note C. History of the eqviitable doctrine of separate estate 
 
 Note D. Authorities on limits of corporate powers . . 
 
 Note E. Foreign laws prescribing forms of contract. . 
 
 Note F. History of consideration 
 
 Note G. Early authorities on assignment of clioses in action 
 
 635 
 640 
 646 
 653 
 671 
 673 
 679
 
 XXIV TABLE OF CONTENTS. 
 
 PAGE 
 
 Note H. Occupation!?, dealings, &c., regxilated or restrained by 
 
 statute . . . . . . . . . , . . . , 682 
 
 Note I. Indian Contract Act on unlawful agreements . . . . 686 
 
 Note K. Indian Contract Act on impossible agreements . . . . 689 
 
 Note L. Bracton on fiindamental error . , . . . . . . 690 
 
 Note M. Mistake in wills 691 
 
 Note N. On the supposed equitable doctrine of "making represen- 
 tations good" 692 
 
 Note 0. Indian Contract Act on fraud, &c. . . . . . . . . 700 
 
 Note P. Foreign laws on luidue iniitience and undervalue . . . . 703
 
 TABLE OF CASES. 
 
 Note. — Where the decision is one of the Court of Appeal, the reports 
 are referred to as Ch. Div. and Q. B. Div.; luhere it is that 
 of a Judge of first instance, the reference is (jiven as Ch. D. 
 or Q. B. D. 
 
 PAGE 
 
 Abbott v. Sworder (1852) 4 De G. & Sm. 448 ... 578 
 Aberaman Ironworks Co. v. Wickens (1868) 4 Ch. 101 . 502 
 
 Ackroyd v. Smith (1850) 10 C. B. 164; 19 L. J. C. P. 315; 
 
 14Jur. 1047 228 
 
 Adams v. Lindsell (1818) 1 B. & Aid. 681 . . 640, 641, 644 
 Addinell's case (1865) 1 Eq. 225; 35 L. J. Ch. 75 ; 13 L. T. 
 
 456; llJur. 965; 14AV. E. 72 39 
 
 Addison v. Cox (1872) 8 Ch. 76 ; 42 L. J. Ch. 291 ; 28 L. T. 
 
 45; 21 W. E. 180 210 
 
 Agar V. Athenreum Life Ass. Soc. (1858) 3 C. B. N. S. 725; 
 
 27 L. J. C. P. 95 ; 4 Jur. N. S. 211 666 
 
 Aggs V. Nicholson (1856) 1 H. & N. 165 ; 25 L. J. Ex. 348; 
 
 4 W. E. 776 219 
 
 Aguilar v. Aguilar (1820) 5 Madd. 414 652 
 
 Ahearne v. Hogan (1844) Drew. 310 .... 559, 571 
 Aiken v. Short (1856) 1 H. & N. 210 ; 25 L. J. Ex. 321 ; 27 
 
 L. T. 0. S. 188 ; 4 W. E. 645 409 
 
 Albion Steel and Wire Co. v. Martin (1875) 1 Ch. D. 580; 
 
 45L. J. Ch. 173; 33L. T. 660; 24 W. E. 134 . .245 
 
 Alderson v. Maddison (1880) 5 Ex. D. 293; 7 Q. B. Div. 
 
 174 ; 8 App. Ca. 407 ; 50 L. J. Q. B. 466 ; 45 L. T. 334; 
 
 29 W. E. 556 484, 696 
 
 Alexander r. Crosble (1835) LI. & Gr. temp. Sugden, 145 . 472 
 iUger V. Thacker (1837) 36 Mass. 51 ; 19 Pick. 51 . . . 312 
 Alison, Ex parte (1874) 15 Eq. 394 ; 9 Ch. 1 . . . 442 
 Allcock V. Moorhouse (1882) 9 Q. B. Div. 366 ; 47 L. T. 404 ; 
 
 30 W. E. 871 ; 47 J. P. 85 225 
 
 Allen V. AUen (1842) 2 Dr. & W. 307 ; 1 L. & L. 427 (Ir.) . 55 
 AUen V. Baker (1882) 86 N. C. 91 ; 41 Am. Eep. 444 . . 378 
 Allen V. Jackson (1875) 1 Ch. Div. 399 ; 45 L. J. Ch. 310 ; 
 
 33 L. T. 713 ; 24 W. E. 306; reversing 19 Eq. 631 . . 309 
 Alliance Bank v. Broom (1864) 2 Dr. & Sm. 289 ; 34 L. J. 
 
 Ch. 956; 11 L.T. 332; 10 Jur. N. S. 1121 ; 13 W.E. 127 . 181 
 Alliance Bank of Simla v. Carey (1880) 5 C. P. D. 429; 49 
 
 L. J. C. P. 781 ; 29 W. E. 306 ; 44 J. P. 735 . . . 603 
 Allkins V. Jupe (1877) 2 C. P. D. 375; 46 L. J. C. P. 824; 
 
 36 L. T. .S51 331, 684
 
 XXVI TABLE OF CASES. 
 
 PAGE 
 
 AUsopp v. Wlieatcroft (1872) 15 Eq. 59; 42 L. J. Cli. 12; 
 
 27L. T. 372; 21 W. E. 102 .... 315,310,318 
 Alton r. Midlaiid Ey. Co. (1865) 19 C. B. N. S. 213 ; 34 L. J. 
 
 C. P. 292 ; 11 Jur. N. S. G72 ; 13 W. E. 918 . . 75, 202 
 Alvanley v. Kinuaird (1849) 2 Mac. & G. 1 ; 12 L. T. 288 . 432 
 Alvarez dela Ecsa v. Prieto (1864) 16 C. B. N. 8. 578 ; 33 L. J. 
 
 C. P.262; lOL.T. 757; 10 Jur. N. 8. 851; 12W.E. 1029 . 624 
 Anchor Ins. Co. Case (1862) 2 J. & n.412; 10 W. E. 724 . 408 
 Anderson's Case (1869) 8 Eq. 509 ; 18 W. E. 71 . . . 402 
 Anderson i-. Eitzgerald (1853) 4 H. L. C. 484; 17 Jur. 995 . 491 
 Anderson v. Eadcliffe (1858) E. B. & E. 800; 29 L. J. 
 
 Q. B. 128 ; 6 Jur. N. 8. 578 ; 8 W. E. 283 . . 295, 298 
 Andrews, Be (1873) L. E. 8 Q. B. 153; 28 L. T. 353; 21 
 
 W. E. 480 ; sub nom. Be Edwards, 42 L. J. Q,. B. 99 . . 304 
 Andrews v. Salt (1873) 8 Ch. 622 ; 21 W. E. 431 . . . 304 
 Augell, Be (1861) 29 L. J. C. P. 227 ; 6 Jur. N. S. 1373 . . 628 
 Angell V. Duke (1875) L. E. 10 Q. B. 174; 44 L. J. Q. B. 
 
 78 ; 32 L. T. 25, 320 ; 23 W. E. 307, 548. .. 160, 364, 698 
 Anglo -Egyptian Navigation Co. v. Eennie (1875) L. E. 10 
 
 C. P. 271; 44L. J. C. P. 130; 32L.T.467; 23W. E.626 . 369 
 Antoine v. Morsliead (1815) 6 Taunt. 237; 1 Marsli. 558 . 280 
 Appleby v. Johnson (1874) L. E. 9 C. P. 158 ; 43 L. J. C. P. 
 
 146 ; 30 L. T. 261 ; 22 W. E. 515 39 
 
 Appleby v. Meyers (.1867) L. E. 1 C. P. 615; 2 ib. 651 ; 36 
 
 L. J. C. P. 331 ; 16 L. T. 669 368 
 
 Arbuthnot v. Norton (1846) 5 Moo. P. C. 219; 3 Moo. Ind. 
 
 App. 435 ; 10 Jur. 145 287, 288 
 
 Archer v. Hudson (1844) 7 Beav. 551; 13 L.J. Ch. 380; 8 
 
 Jur. 701 ........ 559, 565 
 
 Ardglasse v. Muschamp (1684) 1 Vern. 236 . . .581 
 
 Argos, Cargo ex (1872-3) L. E. 5 P. C. 134 ; 28 L. T. 745; 
 
 21 W. E. 707 ; affirming 42 L. J. Adm. 49 . . . . 252 
 Armstrong v. Armstrong (1834) 3 My. & K. 45 ; 2 Cr. & M. 
 
 274; 3L. J. Ch. 101 329 
 
 Armstrong v. Lewis (1834) 3 My. & K. 45 ; 2 Cr. & M. 274 ; 
 
 3 L. J. Ch. 101 329 
 
 Armstrong v. Stokes (1872) L. E. 7 Q. B. 598; 41 L. J. Q. B. 
 
 253; 26 L. T. 872; 21 W. E. 52 .... 98,102 
 Armstrong v. Tolor (1826) 11 Wheat. 258 . . 322, 325 
 Arnold v. Arnold (1880) 14 Ch. Div. 270; 42 L. T. 705; 28 
 
 W. E. 635 499 
 
 Arnold v. Mayor of Poole (1842) 4 M. & Gr. 860; 5 Scott, 
 
 N.E.741; 2'D.N.S.574; 12L. J.C.P. 97; 7Jur.653 . 146,153 
 Arrowsmith, Ex parte (1878) 8 Ch. Div. 96; 47 L. J. Bk. 
 
 46; 38 L. T. 547; 26 W. E. 600 683 
 
 Arthur v. Wynne (1880) 14 Ch. D. 603 ; 49 L. J. Ch. 557 ; 
 
 43L. T. 46; 28 W. E. 972 378 
 
 Arundel's Caso (1616) Hob. 64 113 
 
 Ashbury Ey. Carriage Co. v. Eicho (1875) L. E. 7 II. L. 653; 
 
 44 Ji." J. Ex. 185 ; 33 L. T. 451 . . 121, 127, 455, 667, 670 
 Ashlcy'H Caso (1870) 9 Eq. 263 ; 3i» L. J. Ch. 354 ; 22 L. T. 
 
 83; 18 W. E. 395 539
 
 TAliI,K ()!•' CASKS. XX Vn 
 
 PAGE 
 Asiatic Banking Corjioration, Ex, pcoic (1867) 2 Ch. 391 ; 
 
 m L. J. Ch. 222 ; Hi L. T. 1(32 ; lo W. E. 414 . .20, 213 
 Aspden v. Seddon (187(3) 1 Ex. Div. 496; 46 L. J. Ex. 3j3 ; 
 
 36L. T. 45; 25 AV. E. 277 226 
 
 Atheufenm Life Assurance Soc. v. Pooloy (1858) 3 De G. & J. 
 
 294; 28L. J. Ch. 119; 5 Jur. N. S. 129 . . . . 215 
 
 Atherfold r. Beard (1788) 2 T. E. 610 272 
 
 Atkinson r. Denby (1860) 6 H. & N. 778 ; 7 ih. 934 ; 30 L. J. 
 
 Ex. 361 ; 31 ib. 362 ; 8 Jur. N. S. 1012 . . 330, 556 
 Atkinson v. Eitchie (1809) 10 East, 530 .. . 346, 360 
 Atlee V. Backhouse (1838) 3 M. & W. 633; 1 II. & H. 135 . 554 
 Attenborough v. St. Ivatherine'sDock Co. (1878) 3 C. P. Div. 
 
 450 ; 47 L. J. C. P. 763 ; 38 L. T. 404; 26 W. E. 583 . 545 
 Attorney- General v. G. E. Ey. Co. (1880) 5 App. Ca. 473 ; 
 
 affirm'ing 11 Ch. Div. 449; 49 L. J. Ch. 545; 42 L. T. 
 
 810; 28 W. E. 769; 44 J. P. 648. . 121, 126, 662, 671 
 
 Attorney-General v. Eay (1874) 9 Ch. 397 ; 43 L. J. Ch. 321, 
 
 478 ; 29 L. T. 373; 22 W. E. 361, 498 . . . .491 
 Attorney-General v. Sitwell (1835) 1 Y. & C. Ex. 559 . . 472 
 Attorneys and Solicitors Act, ii'e (1875) 1 Ch. D. 573; 44 
 
 L. J. Ch. 47 ; 24 W. E. 38 295 
 
 Attwood V. Small (1835-8) 6 CI. & F. 232 . . 524, 526 
 Austin V. Guardians of Bethnal Green (1874) L. E. 9 C. P. 91 ; 
 
 43 L. J. C, P. 100; 29 L. T. 807 ; 22 W. E. 406 . 147, 153 
 Austin V. G. W. Ey. Co. (1869) L. E. 2 Q. B. 442 ; 36 L. J. 
 
 a B. 201 ; 16 L. T. 320 ; 15 W. E. 863 399 
 
 Australian Eoval Mail, &c. Co. v.Marzetti(1855) 11 Ex. 228; 
 
 3 C. L. E. 1179; 24 L. J. Ex. 273 151 
 
 Austria, Emperor of, v. Day and Kossuth (1861) 3 D. E. J. 
 
 217; 30 L. J. Ch. 690 ; 7 Jur. N. S. 639 . . . . 207 
 Avery v. Langford (1854) Kay, 667; 23 L. J. Ch. 837 ; 18 
 
 Jur. 905 316 
 
 Avers V. South Australian Banking Co. (1871) L. E. 3 P. C. 
 ■^548 ; 40 L. J. P. C. 22 ; 19 W. E. 860 ; 7 Moo. P. C. 
 
 N. S. 432 63 
 
 Ayerst v. Jenkins (1873) 16 Eq. 275; 42 L. J. Ch. 690; 29 
 
 L. T. 126 ; 21 W. E. 878 . . . . 263, 324, 333 
 Ayles V. Cox (1852) 16 Beav. 23 ; 22 L. T. 0. S. 232 . . 499 
 Aylesford, Earl of, v. Morris (1873) 8 Ch. 484 ; 42 L. J. Ch. 
 
 546 ; 28 L. T. 541 ; 21 W. E. 424; affirming 42 L. J. Ch. 
 
 146 ... . 580, 581, 582, 584, 585, 586, 588 
 
 Ayr Harbour Trustees v. Oswald (1883) 8 AjDp. Ca. 623 . 125 
 Azemari'. Casella (1867) L. E. 2 C. P. 431, 677; 36 L. J. 
 
 C. P. 124, 263; 16 L. T. 571 ; 15 W. E. 998 . 437, 487, 488 
 
 Babcock v. Lawson (1880) 4 Q. B. D. 394; 5 Q. B. Div. 284 ; 
 
 49 L. J. Q. B. 408 ; 42 L. T. 289 ; 27 W. E. 591 . .i44, 545 
 Badcock, Be (1880) 17 Ch. D. 361 ; 43 L. T. 688; 29 "W. E. 
 
 278 695 
 
 Bagnall v. Carlton (1877) 6 Ch. Div. 371 ; 47 L. J., Ch. 30; 
 
 37 L. T. 481 ; 26 W. E. 243 509
 
 XXVlll TABLE OF CASES. 
 
 PAGE 
 
 Bagshaw i\ East Union Ey. Co. (1849) 7 Ha. 114; 2 Mac. & 
 
 G-. 389 656, 669 
 
 Bagshaw v. Seymour (1856) 18 0. B. 903 ; 29 L. J. Ex. 
 
 62, n 534 
 
 Bagster v. Earl of Portsmouth (1826) 5 B. »& C. 170 ; 7 D. 
 
 &E. 614; 2 0. & P. 178 87 
 
 Bagueley v. Hawley (1867) L. E. 2 C. P. 625 ; 36 L. J. C. 
 
 P. 328; 17 L. T. 116 430 
 
 Bahia & San Francisco Ey. Co., Be (1868) L. E. 3 Q. B. 584; 
 
 37 L. J. Q. B. 176 ; 18 L. T. 467 ; 16 W. E. 862 . . 215 
 Bailey v. Harris (1849) 12 Q. B. 905; 18 L. J. Q. B. 115 . 257 
 Bailey w. Piper (1874) 18 Eq. 683; 43 L. J. Ch. 704; 31 
 
 L. T. 86 ; 22 W. E. 943 500 
 
 Bailey v. Stephens (1862) 12 C. B. N. S. 91 ; 31 L. J. C. P. 226; 
 
 6 L. T. 356 ; 8 Jur. N. S. 1063 228 
 
 Bailey i'. Sweeting (1861) 9 C. B. N. S. 843; 30 L.J. C. P. 150; 
 
 9 W. E. 273 605 
 
 Baily's Case (1868) 5 Eq. 428; 3 Ch. 592; 37 L. J. Ch. 255; 
 
 16 W. E. 571 25 
 
 Baily v. De Crespigny (1869) L. E. 4 Q. B. 180; 38 L. J. Q. B. 
 
 98; 19 L. T. 681; 17 W. E. 494 . . 356,357,358,365 
 Bain v. Fothergill (1873-4) L. E. 7 H. L. 158; 43 L. J. Ex. 
 
 243 ; 31 L. T. 387 440 
 
 Bainbridge v. Firmstone (1838) 8 A. & E. 743 ; 1 P. & D. 2 ; 
 
 1 W. W. & H. 600 173 
 
 Bainbrigge v. Browne (1881) 18 Ch. D. 188; 50 L. J. Ch. 
 
 522 ; 44 L. T. 705 ; 29 W. E. 782 569 
 
 Baines v. Woodfall (1859) 6 C. B, N. S. 657 ; 28 L. J. C. P. 
 
 338; 6 Jur. N. S. 19 41 
 
 Baird's Case (1870) 5 Ch. 725; 23 L. T. 424; 18 W. E. 1094 122 
 Baker v. BracUey (1855) 7 D. M. G. 597 ; 25 L. T. 71 ; 1 Jur. 
 
 N. S. 489; 3W. E. 361 569 
 
 Baker v. Cartwright (1861) 10 C. B. N. S. 124 ; 30 L. J. C. P. 
 
 364; 7 Jur. N. S. 1247 510 
 
 Baker v. Loader (1872) 16 Eq. 49; 42 L. J. Ch. 113; 21 
 
 W. E. 167 570 
 
 Baker v. Monk (1864) 33 Beav. 419 ; 4 D. J. S. 388 . 574, 591 
 Baker v. Bead (1854) 18 Beav. 398; 3 W. E. 118 . . . 568 
 Balfour r. Ernest (1859) 5 C. 15. N. S. 601 ; 28 L. J. C. P. 170; 
 
 32 L. T. O. S. 295; 5 Jur. N. S. 439; 7 W. E. 207 . 219, 605 
 Ball r. Storio (1823) 1 Sim. & St. 210 . . . 470, 473 
 Bank of Augusta v. Earlo (1839) 13 Peters, 519 . . . 120 
 Bank of Australasia v. Breillat (1847) Moo. P. C. 152 ; 12 
 
 Jur. 189 122, 321 
 
 Bank of Columbia r. Patterson (1812) 7 Cranch, 299 . . 487 
 Bank of England v. Anderson (1836) 2 Keen, 328; 3 Bing. 
 
 N. C. 589 ; 4 Scott, 50 ; 2 llodgcs, 294 ; 1 Jur. 9 . . 254 
 Bank of Hindustan v. Alison (1870) L. E. 6 C. P. 54, 222; 
 
 40 L. J. C. P. 1, 1 17 ; 23 L. T. 616, 854 ; 19 W. E. 505 . 442 
 Bank of Ireland /•. Evans' Charities (1855) 5 II. L. C. 389 131, 147 
 Bank of Now South Wales r. Owston (1879) 4 App. Ca. 270; 
 
 48 L. J. P. C. 25 ; 40 L. T. 500 395 
 
 Bank of United States v. Daniel (1838) 12 Peters, 32..405, 406, 409
 
 TAlil.K OF CASES. XXIX 
 
 I'AOE 
 Bank of United States v. Owens (1829) 2 Peters, 527 . . 254 
 Banks t-. Crossland (1S74) L. E. 10 Q. B. 97; 44 L. J. M. C. 8; 
 
 32 L. T. 220; 23 W. 11. 414 001 
 
 Banner, Ex parte (1881) 17 Ch. Div. 480 ; 44 L. T. 908 ; 30 
 
 W. E. 24 182 
 
 Banner V.Johnston (1871) L. R. 5 H. L. 157; 40 L. J. Ch. 730; 
 
 24 L. T. 542 197 
 
 Bannerman v. White (1801) 10 C. B. N. S. 844; 31 L. J. 
 
 C.P.28; 4L.T.740; 8Jur.N.S.282; 9W.E.784 439,489,501 
 Barden v. Keverberg (1830) 2 M. & AV. 01 ; 2 Gale, 201 ; 
 
 6 L. J. Ex. GG 82 
 
 Barker v. Cox (1876) 4 Ch. D. 4G4 ; 46 L. J. Ch. 62; 35 
 
 L. T. 662 ; 25 W. E. 138 498 
 
 Barker v. Hodgson (1814) 3 M. & S. 267 . . 346, 362 
 
 Barkworth r. Young (1856) 4 Drew. 1 ; 26 L. J. Ch. 153; 3 Jur. 
 
 N. S. 34 . . . .... 382, 613, 614 
 
 Barnes v. Toye (1884) 13 Q. B. D. 410 69 
 
 Barnett, Ex pnrte (1876) 3 Ch. D. 123; 45 L. J. Bk. 120; 
 
 34 L. T. 664 ; 24 W. E. 904 423 
 
 Barrett v. Hartley (1866) 2 Eq. 789; 14 L. T. 474; 12 Jur. 
 
 N. S. 426 575 
 
 Barry v. Croskey (1861) 2 J. & H. 1 . . . 518, 529 
 Bartlett v. Wells (1862) 1 B. & S. 836; 31 L. J. Q. B. 57; 
 
 5 L. T. 388 ; 8 Jur. N. S. 762 ; 10 W. E. 229 ... 75 
 Barton v. Muir (1874) L. E. 6 P. C. 134; 44 L. J. P. C. 19; 
 
 31 L. T. 593 ; 23 W. E. 427 252 
 
 Barton v. Piggott (1874) L. E. 10 Q. B. 86 . . . . 256 
 Barwick v. English Joint Stock Bank (1867) L. E. 2 Ex. 259; 
 
 36 L. J. Ex. 147 ; 16 L. T. 461 ; 15 W. E. 877 . 115, 530, 531 
 Baskcomb v. Beckwith (1869) 8 Eq. 100; 38 L. J. Ch. 536 ; 
 
 17 W. E. 812 ; 13 Sol. J. 971 500 
 
 Bate V. Hooper (1855) 5 D. M. G. 338 ; 3 W. E. 639 . . 410 
 Bateman v. Mayor, &c. of Ashton-under-Lyne (1858) 3 
 
 H. &N. 323; 27L. J. Ex. 458 659 
 
 Bateman v. Mid- Wales Ey. Co. (1866) L. E. 1 C. P. 499 ; 
 
 35 L. J. C. P. 205 ; 12 Jur. N. S. 453 ; 14 W. E. 672 . . 130 
 Bateman v. Binder (1842) 2 G. & D. 790; 3 Q. B. 574; 11 
 
 L. J. Q. B. 281 601 
 
 Bateman v. Countess of Eoss (1813) 1 Dow, 235 . . . 83 
 Bates, Expurte (1841) 2 Mont. D. & D. 337 . . . 77 
 Bateson v. Gosling (1871) L. E. 7 C. P. 9 ; 41 L. J. C. P. 53; 
 
 25 L. T. 560 ; 20 W. E. 98 242 
 
 Bath's Case (1878) 8 Ch. Div. 334; 47 L. J. Ch. 601 ; 38 L. T. 
 
 267; 26 W. E. 441 . . 661 
 
 Bath, Earl of, and Mountague's Case (1693) 3 Ch. Ca. 55 . 592 
 Batsonv. Donovan- (1820) 4 B. & Aid. 21 . . . .492 
 
 Batson v. Newman (1876) 1 C. P. Div. 573 ; 25 W. E. 85 . 259 
 
 Battersbee v. Farrington (1818) 1 Swanst. 106 . . . 615 
 
 Batty V. Chester (1842) 5 Beav. 103 263 
 
 Baxendale v. Scale (1854) 19 Beav. 601 ; 24 L. J. Ch. 385; 
 
 24 L. T. O. S. 306; 19 Jur. 581 432 
 
 Baxter v. Earl of Portsmouth (1826) 7 D. & E. 614 ; 5 B. & C. 
 
 170; 2 C. & P. 178 87
 
 XXS TAIH.K OF CASKS. 
 
 PAGE 
 
 Bayley v. Manchester, &c. Ey. Co. (1872) L. E. 7 C. P. 415; 
 
 8 ib. 148; 41 L. J. C. P. 278 ; 42 ^6. 78; 28 L. T. 366 . 115,395 
 
 Baylis t: Diueley (1815) 3 M. & S. 477 54 
 
 Beachey v. Brown (1860) E. B. & E. 796; 29 L. J. Q. B. 
 
 105; 6 Jur. N. S. 345 ; 8 W. E. 292 .. . 349, 510 
 
 Beanland v. Bradley (1854) 2 Sm. & G. 339; 2 W. E. 602 . 569 
 
 Beard v. Webb (1800) 2 Bos. & P. 93 83 
 
 Beattie v. Lord Ebury (1872) 7 Ch. 777; 7 H. L. 102 ; 41 L. J. 
 
 Ch. 804; 44 ib. 20; 27 L. T. 398; 30 ib. 581; 20 W. E. 
 
 994 ; 22 ib. 897 106, 521 
 
 Beaucbamp, Earl, v. Winn (1873) L. E. 6 H. L. 223 . . 393 
 
 Beaumont r. Dukes (1822) Jac. 422 697 
 
 Beaumont v. Eeeve (1846) 8 Q. B. 483; 15 L. J. Q. B. 141; 
 
 10 Jur. 284 262 
 
 Beavan v. M'Donnell (1854) 9 Ex. 309 ; 23 L. J. Ex. 94 . 92 
 Bechervaise r. Lewis (1872) L. E. 7 C. P. 372; 41 L. J. 
 
 C. P. 161 ; 26 L. T. 848 ; 20 W. E. 726 . . . . 243 
 Beck'sCase(1874)9Cb. 392; 43L.J. Ch. 531; 30L. T. 346 . 40 
 Beckbam v. Drake (1841) 9 M. & W. 79 ; affirmed, sub nom. 
 
 Drake v. Beckham, 11 ib. 315; 12 L. J. Ex. 486; 7 Jur. 
 
 204 98, 100, 101 
 
 Bedford v. Bagsbaw(1859) 4 H. & N. 538; 29 L. J. Ex. 59 . 534 
 Bedford, Duke of, v. Trustees of British Museum (1822) 
 
 2 AL & K. 552 231 
 
 Beer v. London and Paris Hotel Co. (1875) 20 Eq. 412; 
 
 32 L. T. 715 162 
 
 Beeston v. Beeston (1875) 1 Ex. D. 13; 45 L. J. Ex. 230; 
 
 33 L. T. 700 ; 24 W. E. 96 334 
 
 Begbie v. Phosphate Sewage Co. (1875) L. E. 10 Q. B. 491 ; 
 
 1 Q. B. Div. 679 ; 35 L. T. 530; 25 W. E. 85 . . . 333 
 Behn v. Burness (1863) 3 B. & S. 751 ; 32 L. J. Q. B. 204; 
 
 8 L. T. 207 ; 9 Jur. N. S. 620 483, 489 
 
 Bell V. Eeid (1813) 1 M. & S. 726 277 
 
 Bellairs r. Bellairs (1874) 18 Eq. 510; 43 L. J. Ch. 669; 
 
 22 W. E. 942 309 
 
 Bellairs v. Tucker (1884) 13 Q. B. D. 562 . . . . 523 
 
 Bellamy v. Sabine (1835), 2 Ph. 425 569 
 
 Belshaw v. Bush (1851) 11 C. B. 191; 22 L. J. C. P. 24; 
 
 17 Jur. 67 424 
 
 Beman r. Euft'ord (1851) 1 Sim. N. S. 550 . . . . 656 
 Bennett (Doed.)/'. Hale (1850) 15 Q.B. 171; 18 L. J.Q.B.353 . 627 
 Bensloy v. Bignold (1822) 5 B. & Aid. 335 . . 253, 684 
 Bentley v. Mackay (1869) 4 D. F. J. 279; 6 L. T. 632; 
 
 10 AV. E. 593 403, 473, 477, 595 
 
 Benwolb'.Inns(1857)24Beav.307; 26L. J.Ch.663; 30L.T.70 317 
 Bonvon v. Nettlofold (1850) 3 Macn. & G. 94' . . 262, 263 
 Berdoo r. Dawson (18(55) 34 Beav. 603; 12 L. T. 103; 11 
 
 Jur. N. S. 254 ; 13 W. E. 420 594 
 
 Berry /•. ILeiidurson (1870) L. E. 5 Q. B. 296; 39 L. J. M. C. 
 
 77; 22 L. T. 331 684 
 
 Besant, /.V (1879) 11 Ch. Div. 508; 48 L. J. Ch. 497; 40 
 
 L. T. 469; 27 W. E. 741 305 
 
 Bosant ('. Wood (1879) 12 Ch. D. 605 ; 40 L. T. 445 . . 266
 
 TAlil.K OF TASKS. XXXI 
 
 PAfiK 
 
 Beswick r-. Swindells ( 1 S3,3) 3 A. & E. 8G8 ; 5 N. & M. 378 . 38(5, 388 
 Bettsr.Burcli(18o9)4ll.&N.50(J;lF.&P.485;28L.J.Ex.2G7 4(57 
 Beverley's Case (1G()3)1 Co. Rep. 123 b . . . .87 
 Beverley v. LincolnGiisCo. (1837)6A. & E. 829; 2 N. & P. 283 150 
 Beynon r. Cook (187 J) 10 Cli. 389; 32 L. T. 353; 23 W. B. 
 
 413, 531 580, 584, 587 
 
 Bickerton v. Burrell (181G) 5 M. & S. 383 . 104, 105, 109 
 
 Biffin V. Bignell (18G2) 7 H. & N. 877; 31 L. J. Ex. 189; 
 
 8 Jur. N. S. 647 555 
 
 Bigland v. Skelton (1810) 12 East, 43G 380 
 
 Billage ('. Soutlieo(1852) 9 Ila. 534 .... 5G1, 571 
 Bindley ?;. Mulloney (18G9) 7 Eq. 343; 20 L. T. 2G3 ; 17 
 
 W. E. 510 2G8 
 
 Bingham r. Bint^ham (1748) 1 Yes. sen. 12G . . 406, 444 
 
 Bird'str. (1876)^3 Ch. D. 214 452 
 
 Birkmyr v. Darnell (1705) 1 Sm. L. C. 326; Salk. 27 . 159, 162 
 Birmingham Banking Co., Ex parte (1870) G Ch. 83; 40 
 
 L. J. Ch. 190; 19 W. R. 193 G61 
 
 Biscoe V. Kennedy (17G2) 1 Bro. C. 0. 16, n. . . . 650 
 Blachford v. Preston (1799) 8 T. E. 89 . . . . 287 
 
 Blackburn v. Smith (1848) 2 Ex. 783; 18 L. J. Ex. 187 . . 543 
 Blackie v. Clark (1852) 15 Beav. 595 . . 474, 559, 563, 571 
 Blacklock v. Dobie (1876) 1 C. P. D. 265; 45 L. J. C. P. 498; 
 
 35 L. T. 338 ; 24 W. E. 674 ...... 240 
 
 Blackwood v. London Chartered Bank of Australia (1874) 
 
 L.E.5P.C.92; 43L.J.P.C.25; 30L.T.45; 22W.E.4I9 . 397 
 Blades v. Free (1829) 9 B. & C. 167; 4 M. & R. 282 . 37, 96 
 Bloomer v. S^jittle (1872) 13 Eq. 427 ; 41 L. J. Ch. 369 ; 26 
 
 L. T. 272; 20 "W. R. 435 . . . . 430, 477, 501 
 Bloxam v. Metrop. Ry. Co. (1868) 3 Ch. 337 ; 17 L. T. 637; 
 
 18?6. 41; 16W. R. 490 300,663 
 
 Blyth & Co.'s Case (1872) 13 Eq. 529; 20 W. E. 504 . . 619 
 Boast V. Firth (1868) L. R. 4 C. P. 1 ; 38 L. J. C. P. 1 ; 19 
 
 L. T. 264 ; 17 W. R. 29 375, 377 
 
 Bobbett V. Pinkett (1876) 1 Ex. D. 368 ; 35 L. J. Ex. boo ; 
 
 34L. T. 851; 24 W. R. 711 218 
 
 Bold V. Hutchinson (1855) 5 D. M. G. 558 . . . . 476 
 Bolingbroke v. Swindon Local Board (1874) L. E. 9 C. P. 
 
 575; 43 L. J. C. P. 575; 30 L. T. 723; 23 W. E. 47 . 115, 395 
 Bolton, Duke of, v. Williams (1793) 2 Ves. 138; 4 Bro. C. C. 
 
 297 647, 652 
 
 Bonar v. Macdonald (1850) 3 II. L. C. 226; 14 Jur. 1077 . . 242 
 Bone V. Ekless (I860) 5 H. & N. 925; 29 L. J, Ex. 438 . 335 
 Bonner v. G. W. Ey. Co. (1883) 24 Ch. Diy. 1; 48 L. T. 
 
 619 ; 32 W. E. 190 ; 47 J. P. 580 124 
 
 Bonnewell v. Jenkins (1878) 8 Ch. Div. 70; 47 L. J. Ch. 758; 
 
 38 L. T. 81 ; 26 W. E. 294 42 
 
 Booth V. Bank of England (1840) 7 CI. & F. 509; 6 Bing. 
 
 N. C.415 254 
 
 Borell V. Dann (1843) 2 Ha. 440 578 
 
 Borries v. Imperial Ottoman Bank (1873) L. E. 9 C. P. 38; 
 
 43 L. J. C. P. 3 ; 29 L. T. 689 ; 22 W. E. 92 . . . 101 
 Bosanquet v. Wray (1816) 6 Taunt. 597 ; 2 Marsh. 319 . 633
 
 XX\11 TAlil.K OF OASES. 
 
 PAGE 
 Bostock V. N. Stafltordsliire E. Co. (1856) 3 DeG. & S. 584; 25 
 
 L. J.Cli.325; 27 L.T.O.S.33; 20 Jur.248; 4 W.R.33G . 124, 654, 660 
 Boston Ice Co. r. Potter (1877) 123 Mass. 28 . . . 421 
 Boswell V. Coaks (1884) 27 Cli. Div. 424 .... 504 
 
 Boulton V. Jones (1857) 2 H. & N. 564 ; 27 L. J. Ex. 117; 
 
 3 Jur. N. S. 1156 421 
 
 Boussmaker, ^.cpo;-;e (1806) 13 Ves. 71 . . . .279 
 
 Bowen i: Hall (18S1) 6 Q. B. Div. 333; 50 L. J. Q. B. 305; 
 
 44 L. T. 75 ; 29 AV. E. 367 ; 45 J. P. 373 . . . . 192 
 BoTver V. Cooper (1842) 2 Ha. 408 ; 11 L. J. Ch. 287 . . 225 
 Boyce v. Tabb (1873) IS WaUace (Sup. Ct. U. S.), 546 . 271, 347 
 Boyse v. Eossborough (1856 — 7), 6H. L. C. 2; 3 Jur. N. S. 
 
 373 391, 557,560 
 
 Bracewell v. Wmiams (1866) L. E. 2 C. P. 196; 15 L. T. 
 
 215 ; 12 Jur. N. S. 1004 ; 15 W. E. 130 . . . . 183 
 Bradford v. Eomney (1862) 30 Beav. 431; 6 L. T. 208; 
 
 8 Jur. N. S. 403; "10 "W. E. 414 458 
 
 Bradford ;•. Eoulston (1858) 8 Ir. C. L. Eep. 468 . . 170 
 
 Bradford i: SYmondson(1881)7 Q. B. Div.450; 50 L. J. Q. B. 
 
 582 ; 45 L.'T. 364 ; 30 W. E. 27; 4 Asp. M. C. 455 . 444 
 
 Bradford v. WiUiams (1872) L. E. 7 Ex. 259; 41 L. J. Ex. 
 
 164; 26 L. T. 641; 21 W. E. 782 385 
 
 Bradlaugb i: Xewdegate (1883) 11 Q. B. D. 1; 52 L. J. Q. B. 
 
 454 ; 31 W. E. 792 295, 303 
 
 Bradsliaw v. Bradsbaw (1841) 9 M. & W. 29 . . . 239 
 Bradsbaw r. Lane. & Yorks. Ey. Co. (1875) L. E. 10 C. P. 
 
 189 ; 44 L. J. C. P. 148 ; 31 L. T. 847 . . . . 189 
 
 Bramab r. Eoberts (1837) 3 Bing. N. C. 963 .. . 129 
 Brandao v. Barnett (1846) 12 CI. & Fin. 787 ; 3 C. B. 519 . 218 
 
 Brandon r. Xesbitt (1794) 6 T. E. 23 280 
 
 Branley v. S. E. E. Co. (1862) 12 C. B. N. S. 63 ; 31 L. J. 
 
 C. P. 286 ; 6 L. T. 458 ; 9 Jur. N. S. 329 . . . . 339 
 Brayshaw v. Eaton (1839) 7 Scott, 183; 5 Bing. N. C. 231; 
 
 1 Arn. 466 ; 3 Jur. 222 69 
 
 Breton r. Woollven (1881) 17 Ch. D. 416; 50 L. J. Ch. 369; 
 
 44 L. T. 337 ; 29 W. E. 777 185 
 
 Brett, Ex parte (1875) 1 Ch. Div. 151 ; 45 L. J. Bk. 17; 33 
 
 L. T. 711 ; 24 W. E. 101 ; 13 Cox, C. C. 128 . . . 512 
 Bridgman v. Green (1755) 2 Yes. sen. 627; Wilm. 58 . 570, 592 
 Briggs, Ex pcrte {IHGii) 1 Eq. 483; 35 L. J. Ch. 320; 14 
 
 L. T. 39 ; 12 Jur. N. S. 322 537 
 
 Bright V. Legerton (1861) 2 D. F. J. 606; 8.W. E. 678 . . 548 
 Bristow V. SecqueviUe (1850) 5 Ex. 275 ; 19 L. J. Ex. 289; 
 
 14 Jur. 674 283 
 
 Britain r. Eossiter (1879) 11 Q. B. Div. 123; 48 L. J. Ex. 
 
 362 ; 40 L. T. 240 ; 27 W. E. 482 . . . 605, 61 1 
 British & American Telegraph Co. v. Colson (1871) L. E. 
 
 6 Ex. 108 ; 40 L. J. Ex. 97 ; 23 L. T. 868 .. . 641 
 Britisli Linen Co. r. Drummond (1830) 10 B. & C. 903 . . 603 
 Broad r. Muuton (1879) 12 Cli. Div. 131; 48 L. J. Ch. 837; 
 
 40 L. T. 828 ; 27 AV. E. 826 504 
 
 Brogdeu i\ ]Metro])olitau Ey. Co. (1877) 2 App. Ca. 666 . 31, 42 
 BrouJey v. Smith (1859) 26 Beav. 644 ; 7 W. E. 557 . . 588
 
 TABLE OF CASES. XXXIU 
 
 Brook V. Brook (1861) 9 II. L. C. 193 ; 4 L. T. 93 ; 7 Jur. 
 
 N. S. 422 ; 9 AV. E. 461 249, 250 
 
 Brookman's Trust, Re (1869) 5 Ch. 182; 39 L. J. Ch. 138; 
 
 22 L. T. 891 ; 18 W. R. 199 310 
 
 Brotherhood's Case (1862) 4 D. F. J. 566 ; 10 W. E. 852 . 667 
 Broughton v. Hutt (1858) 3 De G. & J. 501 . . 406, 446 
 
 Broughton v. Manchester Waterworks Co. (1819) 3 B. & Aid. 1 128 
 Broun v. Kennedy (1863) 33 Beav. 133; 4 D. J. S. 217 477, 570 
 Brownv. Brine (1875)1 Ex. D. 5; 45 L. J. Ex. 129; 33 L. T. 
 
 703; 24 W. E. 177 290 
 
 Brown v. Byers (1847) 16 M. & W. 252 ; 16 L. J. Ex. 112 . 129 
 Brown v. Dale (1878) 9 Ch. D. 78 ; 27 W. E. 149 . . . 117 
 Brown v. Jodrell (1827) 3 C. & P. 30 ; M. & M. 105 . . 89 
 Brown v. Mayor of London (1861) 9 C. B. N. S. 726 ; 13 ih. 
 
 828 ; 30 L. J. C. P. 225 ; 31 ih. 280 ; 7 Jui-. N. S. 755 ; 
 
 8 ih. 1103; 9 W. E. 336; 10 ih. 522 . . . 358, 388 
 Brown r. Eoyal Insurance Co. (1859) 1 E. & E. 853; 28 
 
 L. J. Q. B. 275; 5 Jur. N. S. 1255 . . . . 361,383 
 Browning v. Wright (1799) 2 B. & P. 13 . . 454, 461 
 
 Brownlie v. Campbell (1880) 5 App. Ca. 925 .. . 700 
 Brunton's Claim (1874) 19 Eq. 302; 44 L. J. Ch. 450; 31 
 
 L. T. 747 ; 23 W. E. 286 215 
 
 Bryan (Doe d.) r. Bancks (1821) 4 B. & Aid. 401; Gow, 220 53 
 Bryantt'. Plight (1839) 5 M. &W. 114 . . . . . 45 
 Bryant v. Herbert (1878) 3 C. P. Div. 389 ; 47 L. J. C. P. 
 
 670; 39 L. T. 17; 26 W. R. 898 140 
 
 Bubb V. Yelverton (1870) 9 Eq. 468 ; 39 L. J. Ch. 428 ; 22 
 
 L. T. 258; 18 W. E. 512 686 
 
 Bulkley v. Wilford (1834) 2 CI. & Fin. 102 . . . 246, 702 
 
 Bult iCMorrel(1840) 12 A. &E. 745 129 
 
 Bulteel V. Plummer (1870) 6 Ch. D. 160 ; 18 W. E. 1091 . 310 
 Burchell v. Clark (1876) 2 C. P. Div. 88; 46 L. J. C. P. 115; 
 
 35 L. T. 690 ; 25 W. E. 334 453 
 
 Burgess's Case (1880) 15 Ch. D. 507 ; 49 L. J. Ch. 541 ; 43 
 
 L. T. 45 ; 28 W. E. 792 547 
 
 Burgess v. Eve (1872) 13 Eq. 450; 41 L. J. Ch. 515; 26 
 
 L. T. 540; 20AV. E. 311 243 
 
 Burghart v. Hall (1839) 4 M. & W. 727 . . . .69 
 Burke V. S. E. Ey. Co. (1879) 5 C. P. D. 1 ; 49 L. J. C. P. 
 
 107 ; 41 L. T. 554 ; 28 W. E. 306 ; 44 J. P. 283 . . . 47 
 Burn V. Carvalho (1839) 4 M. & Cr. 690; 3 B. & Ad. 382 ; 
 
 1 N. & M. 700 ; 3 Jur. 1141 ; affirmed 4 N. & M. 889 ; 
 
 1 A. & E. 883 209 
 
 Burnard v. Haggis (1863) 14 C. B. N. S. 45 ; 32 L. J. C. P. 
 
 189; 8 L. T. 320 ; 9 Jm-. N. S. 1325; 11 W. E. 644 . . 75 
 Burrell, Ex parte (1876) 1 Ch. Div. 537; 45 L. J. Bk. 68; 
 
 34 L. T. 198 ; 24 W. E. 353 239, 522 
 
 Burroughes v. Bayne (1860) 5 H. & N. 296; 29 L. J. Ex. 
 
 188; 2 L. T. 16 142 
 
 Burrow v. Scammell (1881) 19 Ch. D. 175 ; 51 L. J. Ch. 296 ; 
 
 45 L. T. 606 ; 30 W. E. 310 ; 46 J. P. 135 .. . 500 
 
 Burrowes V. Lock (1805) 10 Ves. 470 517 
 
 P. c
 
 XXXIV TABLE OF CASES. 
 
 PAGE 
 
 Burton v. Sturgeon (1876) 2 Ch. Div. 318; 45 L. J. Ch. 633; 
 
 M L. T. 706 ; 24 W. E. 772 84 
 
 Bute, Marquis of, v. Thompson (1844) 13 M. & W. 487 ; 17 
 
 L. J. Ex. 9o 372 
 
 Butler and Baker's Case (1591) 3 Co. Eep. 68 . . . 48 
 
 Bwlcli-y-Plwm Lead Mining Co. v. Baj'nes (1867) L. E. 
 
 2Ex. 324; 36 L.J. Ex. 183; 16 L.T. 597; 15 W.E.I 108 . 539 
 Byrne v. Van Tienlioven (1880) 5 C. P. D. 344; 49 L. J. 
 
 C. P. 316; 42 L. T. 371; 44 J. P. 667 .... 26 
 
 Caballero v. Henty (1874) 9 Ch. 447 ; 43 L. J. Ch. G35 ; 30 
 
 L. T. 314; 22 W. E. 446 503 
 
 Cahill V. Cahill (1883) 8 App. Ca. 420; 49 L. T. 605; 31 
 
 W. E. 861 ; reversing 7 L\ L. E. 361 . . . . 83 
 Caldecott, Ex parte (1876) 4 Ch. Div. 150; 40 L. J. Bk. 14; 
 
 35 L. T. 172 ; 25 W. E. 103 . . . . 289, 333 
 
 Caldcr V. Dobell (1871) L. E. 6 C. P. 486; 40 L. J. C. P. 
 
 224 ; 25 L. T. 129 ; 19 W. E. 978 .. . 95, 97, 98 
 Callisher v. Bischoffsheim (1870) L. E. 5 Q. B. 449 ; 39 L. J. 
 
 a B. 181; 18 W. E. 1127 182 
 
 Calverley v. Williams (1790) 1 Yes. jun. 210 . . . . 430 
 Camberwell and S. London Building Society r. Holloway 
 
 (1879)13Ch.D.754;49L.J.Ch.361;4lL.T.752;28W.E.222 499 
 Cambridge, Mayor of, v. Dennis (1858) E. B. & E. 660; 27 
 
 L. J. Q. B. 474 242 
 
 Campanari v. Woodburn (1854) 15 C. B. 400; 3 C. L. E. 
 
 140; 24L. J. C. P. 13; iJur. N. S. 17 . ... 37 
 Campbell's Case (1873) 9 Ch. 1; 43 L. J. Ch. 1 ; 29 L. T. 
 
 519; 22 W. E. 113 665, 668 
 
 Campbell, Ex parte (1873) 16 Eq. 417; 9 Ch. 1 ; 42 L. J. 
 
 Ch. 771; 29L. T. 519; 22 W. E. 113 . . . .4^2 
 Campbell v. Fleming (1834) 1 A. & E. 40; 3 N. & M. 834 . 538 
 
 Campbell v. French (1797) 3 Ves. 321 691 
 
 Canada, Southern Ey. Co; v. Gebhard (1883) 109 TJ. S. 
 
 (2 Davis) 527 662 
 
 Canham v. Barry (1855) 15 C. B. 597; 3 C. L. E. 487; 24 
 
 L. J. C. P. 100 ; 1 Jur. N. S. 402 . . 356, 357, 513 
 
 Cannam v. Farmer (1849) 3 Ex. 698 79 
 
 Caunan?;. Bryce (1819) 3 B. & Aid. 179 323 
 
 Capper, Ex parte (1876) 4 Ch. Div. 724 ; 46 L. J. Bk. 6, 57; 
 
 35 L. T. 558, 718 ; 25 W. E. 100, 244 . . . . 467 
 Cargill V. Bower (1878) 10 Ch. D. 502; 47 L. J. Ch. 649; 
 
 38L. T. 779; 26 W. E. 716 532 
 
 Carington, Lord, v. Wycombe Ey. Co. (1868) 3 Ch. 377; 37 
 
 li. J. Ch. 2i;i ; 18 L. T. 96 ; 16 W. E. 494 .. . 124 
 Carmarthen, Maj'or of, v. Lewis (1834) 6 C. & P. 608; 2 
 
 M. & Or. 249 154 
 
 Carr v. Jackson (1852) 7 Ex. 382; 21 L. J. Ex. 137 . 99, 109 
 Carrington v. Boots (1837) 2 M. & W. 248 . . . . 006 
 
 Carrol ^'. P>loncow( 1801) 4 Esp. 27 81 
 
 Carter ('. McLaren (1871) L. E. 2 Sc. &D. 120 . . . 395
 
 TABLE OF CASES. XXXV 
 
 PAGE 
 
 Cartwnght v. Cartwri-ht (1Sj3) 3 D. M. G. 982; 22 L. J. 
 
 Ch. 811 ; 17 Jur. J84 2G8 
 
 Cartwriglit r. Ilatelcy (1791) 1 Yes. jun. 292 ... 42G 
 
 Casborue r. Bui'shum (1839) 2 Beav. 7G . . . . oOJ 
 Castle V. Wilkinson (1870) 5 Ch. 534 ; 39 L. J. Ch. 843; 18 
 
 W. E. 586 498 
 
 Catling V. King (1877) 5 Ch. Div. GGO; 46 L. J. Ch. 384; 
 
 36 L. T. 526 ; 25 W. E. 550 162 
 
 Cato V. Thompson (1882) 9 (i. B. Div. 616; 47 L. T. 491 . . 458 
 Caton V. Caton (1865) 1 Ch. 137 ; 35 L. J. Ch. 292 ; 12 Jur. 
 
 N. S. 171 ; affirmed, L. E. 2 H. L. 127 ; 36 L. J. Ch. 8SG . 612 
 Catt V. Tourle (18G9) 4 Ch. 654; 38 L. J. Ch. 665; 21 L. T. 
 
 188 . . 315, 317 
 
 Caudell v. Shaw (1791) 4 T. E. 361 . . . . 82, 83 
 
 Cavendish v. Geaves (1857)24 Beav. 163; 27 L. J. Ch. 314; 
 
 3 Jur. N. S. 1086 212, 213 
 
 Central Ey. Co. of Venezuela v. Kisch (1867) L. E. 2H. L. 
 
 99;36L.J.Ch.S49;16L.T.500; 15W.E.821 . 508,509,525,550 
 Challis's Case (1870-1) 6 Ch. 266; 40 L. J. Ch. 431; 23 L. T. 
 
 882 ; 19 W. E. 453 433 
 
 Chamberlain v. Williamson (1814) 2 M. & S. 408 . . . 377 
 Chambers v. Manchester and Milford Ey. Co. (1864) 5 B. & S. 
 
 588 ; 33 L. J. Q. B. 268 ; 10 Jur. N. S. 700 . . 253, 659 
 Champion v. Eigby (1830) 1 Euss. & M. 539; affirmed on 
 
 app. L. C. 18th March, 1840 o'.Hi 
 
 Chandelor v. Lopus (1603) 1 Sm.L. C. 174; 2 Cro. (Jac. 1) 2 . 516 
 Chanter v. Hopkins (1838) 4 M. & W. 399; 1 H. & H. 377 ; 
 
 3 Jur. 58 487 
 
 Chanter v. Leese (1839) 4 M. & W. 295 ; 5 ib. 698 . . . 204 
 Chapleo v. Brunswick Building Society (1881) 6 Q. B. Div. 
 
 696 ; 50 L. J. Q. B. 372 ; 44 L. T. 449 ; 29 W. E. 529 . 667 
 Chappie V.Cooper (1844) 13 M.&W. 252; 13L.J.Ex.286 . 71, 72 
 Charlesworth v. Holt (1873) L. E. 9 Ex. 38 ; 43 L. J. Ex. 
 
 25 ; 29 L. T, 647 ; 22 W. E. 94 267 
 
 Charter v. Charter (1874) L. E. 7 H. L. 364 .. . 691 
 
 Charter v. Trevelyan (1844) 11 CI. & Fin. 714 . 244, 541, 548 
 Chasemore v. Turner (1874) L. E. 10 Q. B. 500; 45 L. J. 
 
 Q. B. 66; 33 L. T. 323 ; 24 W. E. 70 001 
 
 Chavasse, Ex jxirte (1865) 4 D. J. S. 655 .... 281 
 Chealo V. Kenward (1858) 3 De G. & J. 27; 27 L. J. Ch. 
 
 784; 4 Jur. N. S. 981 174 
 
 Chemin de fer du Dauphine v. Clet, Dalloz, Jurisp. Gen. 
 
 (1861) pt. 1, 105 3G9 
 
 Cherrv v. Colonial Bank of Australasia (1869) L. E. 3 P. C. 
 
 24 { 6 Moo. P. C. N. S. 235 106 
 
 Cherry r. Homing (1849)4 Ex. 631 ; 19 L. J. Ex. 63 . 161, 163 
 Chesterfield v. Janssen (1750-1) 1 Wh. & T. L. C. 592; 2 
 
 Ves. sen. 125 579, 581 
 
 Chicago & G. E. Ey. Co. v. Dane (1870) 43 N. Y. (4 Hand.) 
 
 240 ^ . .^ . ^ 175 
 
 Chilton r. Corporation of London (1878) 7 Ch. D. 735 ; 47 
 
 L. J. Ch. 433; 38 L. T. 498 ; 26 W. E. 474 . . . 200 
 Chinnock v. Marchioness of Ely (1865) 4 D. J. S. 638 . . 41 
 
 c'2
 
 XXXVl TABLE OF CASES. 
 
 PAGE 
 
 Cholmondeley v. Clinton (1821) 4 Bligli, 1 . . . .301 
 Chorley, Ex parte (1870) 11 Eq. 157; 40 L. J. Ch. 153 ; 19 
 
 W. E. 430 215 
 
 Chubb V. Stretch (1870) 9 Eq. 555; 39 L. J. Ch. 329; 22 
 
 L. T. 86; 18 W. E. 483 650 
 
 Church V. Imperial GasUght, &c. Co. (1838) 6 A. & E. 846; 
 
 3 N. & P. 35; 1 W. W. & H. 137 . . . 146, 150 
 Citizens' Bank of Louisiana v. First National Bank of New 
 
 Orleans (1873) L. E. 6 H. L. 352 ; 43 L. J. Ch. 269; 23 
 
 W. E. 194 615, 696 
 
 City Bank,^a;;jar^e(1868)3Ch.7o8;16W.E.919.. 129, 130, 214, 216 
 
 Clack V. Holland (1854) 19 Beav. 262 211 
 
 Clare v. Lamb (1875) L. E. 10 C. P. 334; 44 L. J. C. P. 177; 
 
 32L. T. 196; 23 W. E. 389 409 
 
 Clark, lie (1866) 1 Ch. 292; 35 L. J. Ch. 314; 13 L. T. 732; 
 
 14 W. E. 378 73 
 
 Clark V. Girdwood (1877) 7 Ch. Div. 9 ; 47 L. J. Ch. 116; 
 
 37L. T. 614; 26 W. E. 90 475 
 
 Clark V. Malpas (1862) 31 Beav. 80 ; 4 D. P. J. 401 . . 574 
 
 Clarke v. Cobley (1789) 2 Cox, 173 76 
 
 Clarke v. Cuckfield Union (1852) 1 B. C. C. 81; 21 L. J. 
 
 Q. B. 349; 16Jur. 686 152 
 
 Clarke v. Dickson (1859) E. B. & E. 148 ; 6 C. B. N. S. 453; 
 
 27 L. J. Q. B. 223 ; 28 L. J. C. P. 225; 5 Jur. N. S. 1029 ; 
 
 4 ib. 832 ; 7 W. E. 443 542 
 
 Clarkson v. Edge (1863) 33 Beav. 227 ; 33 L. J. Ch. 443 ; 10 
 
 Jur. N. S. 871; 12 W. E. 518 317 
 
 Clay V. Eay (1864) 17 C. B. N. S. 188 .... 328 
 
 Clayton V. Adams (1796) 6 T. E. 605 79 
 
 Clayton v. Corby (1843) 5 Q. B. 415 ; D. & M. 449; 14 L. J. 
 
 Q. B. 364; 8 Jur. 212 228 
 
 Clegg V. Edmondson (1857) 8 D. M. G. 787 ; 29 L. T. O. S. 
 
 131 ; 3 Jur. N. S. 299 538 
 
 Clementson v. Blessig (1855) 11 Ex. 135; 3 W. E. 510 . 278 
 Cleve V. Financial Corporation (1873) 16 Eq. 363; 43 L. J. 
 
 Ch. 54; 29L. T. 89 174 
 
 Clifford V. Watts (1870) L. E. 5 C. P. 577 ; 40 L. J. C. P. 
 
 36; 22 L. T. 717; 18 W. E. 925 . . . 351,352,372 
 
 Clinan v. Cooke (1802) 1 Sch. & L. 22 469 
 
 Clinch V. Financial Corporation ( 1 868) 5 Eq. 483; 4 Ch. 117; 
 
 38 L. J. Ch. 1 ; 19 L. T. 334 ; 17 W. E. 84 . . . 551 
 
 Clive V. Beaumont (1847) 1 De G. & S. 397 . . . . 40 
 
 Close V. Close (1853) 4 D. M. G. 170 242 
 
 Clothworkers' Co. Case (1599) 11 Co. Eep. 8Q b . . .313 
 Clough V. L. & N. W. Ey. Co. (1871) L. E. 7 Ex. 26; 41 
 
 L. J. Ex. 17 ; 25 L. T. 708 ; 20 W. E. 189 . 512, 529, 537, 
 
 539, 540, 541, 551 
 Clowes V. Iligginson (1813) 1 Vos. & B. 524 . 431, 457, 469 
 Clubb V. Hutson (1865) 18 C. B. N. S. 414 . . . . 288 
 Clugas V. Penaluna (1791) 4 T. E. 466 . . . . 282 
 
 Coatos V. Collins (1871) L. E. 6 Q. B. 469 ; 7 Q. B. 144 ; 41 
 
 L. J. Q. B. 90 ; 26 L. T. 134 ; 20 W. E. 187 . . . 446 
 Cobbott /•. Brock (1855) 20 Beav. 524 . . . . 559, 594
 
 '1A15LK OF CASKS. XXXVll 
 
 PAQE 
 
 Cochrane v. Willis (1865) 1 Ch. 58; 35 L. J. Ch. 30; 13 
 
 L. T. 339 ; 11 Jur. N. .S. 870 ; 14 W. E. 190 . 443, 444 
 Cockell V. Taylor (1851) 15 Beav. 103 ; 21 L. J. Ch. 545 . 574 
 Cocker's Case (lS7(i) 3 Ch. Div. 1 ; 45 L. J. Ch. 882; 35 
 
 L. T. 290 195 
 
 Cocking V. AVanl (1845) 1 C. B. 858 ; 15 L. J. C. P. 245 . (510 
 Cogan r. Duffiekl (1876) 2 Ch. Div. 44 ; 45 L. J. Ch. 307 ; 
 
 34 L. T. 593 ; 24 W. E. 905 476 
 
 Cohen r. Wilkinson (1849) 12 Beav. 125, 138 ; 1 Mac. & G. 
 
 481 ; 18 L. J. Ch. 378; 13 Jur. 641 .... 655 
 
 Colborne & Strawbridge, Ex parte (1870-1) 11 Eq. 478 ; 40 
 
 L. J. Ch. 93, .343; 23 L. T. 515; 24 ib. 255 ; 19 W. E. 
 
 223; 15 Sol. J. 614 214 
 
 Coldcot r. Hill (1662) 1 Ch. Cas. 15 461 
 
 Cole V. Gibbons (1734) 3 P. Wnis. 289 581 
 
 Cole V. Gibson (1750) 1 Ves. sen. 503 307 
 
 Coles V. Pilkington (1874) 19 Eq. 174; 44 L. J. Ch. 381 ; 31 
 
 L. T. 423; 23 W. E. 41 695 
 
 Coles V. Trecothick (1804) 9 Ves. 234 577 
 
 Collen V. Wright (1857) 7 E. & B. 301 ; 8 ib. 647 ; 26 L. J. 
 
 Q. B. 147 ; 27 ib. 215 ; 3 Jur. N. S. 363; 4 ib. 537 . . 106 
 
 Collier V. Brown (1788) 1 Cox, 428 577 
 
 ColUns V. Blantern (1767) 1 Sim. L. C. 387; 2 Wils. 341, 
 
 347 288, 329 
 
 ColHns V. Evans (1844) 5 Q. B. 820 ; D. & M. 669 ; 13 L. J. 
 
 Q. B. 180 ; 8 Jur. 345 516 
 
 Collins V. Locke (1879) 4 App. Ca. 674 ; 48 L. J. P. C. 68; 
 
 41 L. T. 292 ; 28 W. E. 189 ... . 293, 311 
 
 Collyer v. Fallon (1823) 1 T. & E. 459 . . . . 287 
 
 Colman v. E. C. Ey. Co. (1846) 10 Beav. 1 ; 16 L. J. Ch. 73 ; 
 
 11 Jur. 74 654, 655, 663 
 
 Colyear v. Mulgrave (1836) 2 Keen, 81 . . . .202 
 Commins v. Scott (1875) 20 Eq. 11 ; 44 L. J. Ch. 563; 32 
 
 L. T. 420; 23 W. E. 498 162 
 
 Commonwealth v. Lane (1873) 113 Mass. (17 Browne) 458 . 250 
 Conquest's Case (1875) 1 Ch. Div. 334; 45 L. J. Ch. 336; 
 
 33 L. T. 762 193 
 
 Cooki'.Field(1850)15Q.B.460; 19L. J.Q.B.441; 14Jur.951 . 302 
 Cook V. Lister (1863) 13 C. B. N. S. 543; 32 L. J. C. P. 121; 
 
 7L. T. 712; 9 Jur. N. S. 823 .... 221,424 
 Cooke V. Chilcott (1876) 3 Ch. D. 694; 34 L. T. 207 . . 226 
 
 Cooke r. Clay worth (1811) 18 Ves. 12 90 
 
 Cooker. Cooke (lS67)4Eq.77;30L. J. Ch.480; 15W. E.981 . 291 
 Cooke V. Cooke (1864)4 D. J. S. 704; 2 H. & M. 124 . . 301 
 Cooke i'.Lamotte(1851) 15 Beav. 234; 21 L.J. Ch. 371 . 561,562 
 
 Cooke V. Oxley (1790) 3 T. E. 653 24, 29 
 
 Coombes v. Dibble (1866) L. E. 1 Ex. 248 ; 35 L. J. Ex. 
 
 167 ; 13 L. T. 415 ; 12 Jur. N. S. 456; 14 W. E. 676 . 685 
 Coopery.Evans(1867)4Eq.45;36L.J.Ch.431; 15W.E. 609 . 495 
 Cooper V. Joel (1859) 1 D. F. J. 240; 27 Beav. 313 . . 495 
 Cooper V. Phibbs (1867) L. E. 2 H. L. 149; 16 L. T. 678 ; 
 
 15W. E. 1049 393,406,409,445
 
 XSXVIU TABLE OF CASES. 
 
 PAGE 
 
 Cooper V. Simmons (1862) 7 H. & N. 707 ; 31 L. J. M. C. 
 
 138; 5 L. T. 712; 8 Jur. N. S. 81; 10 W. E. 270 66, 71, 426 
 Cooper V. Vesey (1882) 20 Ch. Div. 611 ; ol L. J. Qh. 862; 
 
 47 L. T. 89 ; 30 W. E. 648 399, 423 
 
 Coothv. Jackson (1801-2) 6 Yes. 11 290 
 
 Cope v. Eowlauds (1836) 2 M. & W. 149; 2 Gale, 231 . . 253 
 Cope V. Thames Haven, &c. Co. (1849) 3 Ex. 841 ; 18 L. J. 
 
 Ex. 345 ; 6 Eailw. Ca. 83 153 
 
 Copper Miners of England v. Fox (1851) 16 Q. B. 229 ; 20 
 
 L. J. Q. B. 174; 15 Jur. 703 150 
 
 Coppock r. Bower (1838) 4 M. & W. 361 . . 290, 329 
 
 Cordingly v. Cheeseborough (1862) 3 Giff. 496; 4 D. F. J. 
 
 379; 31L.J. Ch. 617;6L. T. 15,642; 8 Jur. N.S. 585, 755 . 497 
 Cork and Bandon Ey. Co. v. Cazenove (1847) 10 Q. B. 935 ; 
 
 11 Jur. 802 65 
 
 Cork and Youghal Ey. Co. Re (1869) 4 Ch. 748 ; 30 L. J. 
 
 Ch. 277 ; 21 L. T. 735 253 
 
 Corley v. Lord Stafford (1857) 1 De G. & J. 238 . 246, 475 
 Cornell v. Hay (1873) L. E. 8 C. P. 328; 42 L. J. C. P. 136; 
 
 28L. T. 475; 21 W. E. 580 510 
 
 Cornfoot v. Fowke (1840) 6 M. & W. 358 ; 4 Jur. 919 . . 530 
 
 Cory V. Gertcken(1816) 2 Madd. 40 76 
 
 Cory V. Fatten (1872) L. E. 7 Q. B. 304 ; 9 ib. 577 ; 43 L. J. 
 
 Q. B. 181; 30L. T. 758; 23 W. E. 46 . . . . 617 
 
 Costigan v. Hastier (1804) 2 Sch. & L. 159 . . .579 
 
 Cote, Ex parte (1873) 9 Ch. 27 ; 43 L. J. Bk. 19; 29 L. T. 
 
 598 ; 22 W. E. 39 402 
 
 Cottage Street Church v. Kendall (1877) 121 Mass. (7 Lath- 
 
 rop)528 632 
 
 Coulson V. AlHson (1860) 2 D. F. J. 521 ; 3 L. T. 763 . . 559 
 County Life Assurance Co. Re (1870) 5 Ch. 288; 39 L. J. 
 
 Ch. 471 ; 22 L. T. 537 ; 18 W. E. 390 . . . . 665 
 Courtenay v. Williams (1844) 3 Ha. 539 ; 13 L. J. Ch. 461 . 600 
 Coutts ;-. Acworth (1869) 8 Eq. 558; 17 W. E. 1121 . . 594 
 Couturier v. Hastie (1856) 5 H. L. C. 673 ; 2b L. J. Ex. 253; 
 
 2 Jur. N. S. 1241 371,372,441,691 
 
 Coverdale v. Eastwood (1872) 15 Eq. 121 ; 42 L.J. Ch. 118; 
 
 27L. T. 646; 21 W. E. 216 .... 695,696 
 
 Cowan v.. Milbourn (1867) L. E. 2 Ex. 230; 36 L. J. Ex. 
 
 124 ; 16 L. T. 290; 15 W. E. 750 . . 233, 270, 324, 684 
 Coward and Adam's Purchase, 7?e(1875) 20 Eq. 179; 44 L. J. 
 
 Ch. 384 ; 32 L. T. 682 ; 23 AV. E. 605 ; 19 Sol. J. 595 . 84 
 Coward v. Hughes (1855) 1 K. & J. 443 .. . 409, 584 
 Cowdry v. Lay (1859) 1 Giff. 316; 1 Ch. Ca. 141 ; 29 L. J. 
 
 Ch. 39; 1 L. T. 88 ; 5 Jur. N. S. 1199 ; 8 ^Y. E. ub . 466 
 Cowie V. Stirling (1856) 6 E. & ]}. 333; 25 L. J. Q. B. 335; 
 
 2 Jur. N. S. 663 ; sidi riom. Storm v. Stirling in (i. B. 
 
 3 El. & Bl. 832; 23 L. J. Q. B. 298; 17 Jur. 788 . . 205 
 Cox V. Prciutico (1815) 3 M. & S. 344 .... 439, 450 
 Coxhoad v. Mullis (1878) 3 C. P. J). 139; 47 L. J. C. P. 761 ; 
 
 39 L. T. 349 ; 27 W. E. 130 61 
 
 Cnigoo V. Jones (1873) L. E. 8 Ex. 81 ; 42 L. J. Ex. 68; 28 
 L. T. 36; 21 W. E. 408 242
 
 TABLE OF CASES. XXXIX 
 
 PAGE 
 
 Crampton v. Yarna Ry. Co. (1872) 7 Ch. 5G2 ; 41 L. J. Ch. 
 
 817; 20 W. E. 713 154 
 
 Cripps V. Ilartuoll (1863) 4 B. & S. 414; 32 L. J. Q. B. 387; 
 
 8 L. T. 7G8; 10 Jur. N. S. 200; 11 W. E. 953 . . 159 
 Croft/'. Graham (18G3) 2 D. J. S. 155; 9 L. T. 112, 589; 
 
 9 Jur. N. 8. 1032 584 
 
 Crofts V. Middleton (1856) 8 D. M. G. 192; 25 L. J. Ch. 543; 
 
 2 Jur. N. S. 528 251 
 
 Crook r. Corijoration of Seaford (1871) (5 Ch. 551; 25 L. T. 1; 
 
 19 W. E. 938 131 
 
 Cropton V. Davies (1869) L. E. 4 C. P. 159 ; 38 L. J. C. P. 
 
 159; 20 L. T. 30; 17 W. E. 444 452 
 
 Crosby v. Wadsworth (1805) 6 East, 602; 2 Smith, 559 . . 606 
 Crossley v. Maycock (1874) 18 Eq. 180; 43 L. J. Ch. 379; 
 
 22 W. E. 387 39 
 
 Crouch V. Credit Foncier of England (1873) L. E. 8 Q. B. 
 
 374; 42L. J. U.B. 183; 29L.T. 259; 21W.E.946 129,214, 
 
 216,219,220 
 Crow V. Eobinson (1868) L. E. 3 C. P. 264 . . . . 212 
 Cruickshanks v. Eose (1831) 5 C. & P. 19; 1 M. & Eob. 100 . 631 
 Cullen V. Thompson's Trustees and Kerr (1862) 4 Macq. H. 
 
 L. Cas. 424 ; 6 L. T. 870 ; 9 Jur. N. S. 85 . . . 533 
 Cumber r. Wane (1719) 1 Sm. L. C. 357 ; 1 Str. 425 . . 180 
 Gumming v. Ince (1847-8) 11 Q. B. 112; 17 L. J. Q. B. 105; 
 
 12 Jur. 331 554 
 
 Cundy i\ Lindsay (1878) 3 App. Ca. 459 ; 47 L. J. Q. B. 
 
 481 ; 38 L. T. 573; 26 W. E. 406 .. . 423, 545 
 Cunningham v. Duun (1878) 3 C. P. Div. 443 . . . 362 
 
 Currieu. Gookl(1817) 2 Madd. 163 411 
 
 Curric v. Misa (1875) L. E. 10 Ex. 153 ; 44 L. J. Ex. 94; 
 
 23 W. E. 450 ; affirmed 1 App. Ca. 544 ; 45 L. J. Q. B. 
 852 ; 35 L. T. 414 ; 24 W. E. 1049 167 
 
 Curtis V. AYilliamson (1874) L. E. 10 Q. B. 57; 44 L. J. Q. B. 
 
 27 ; 31 L. T. 678 ; 23 W. E. 236 103 
 
 Curzon v. Belworthy (1852) 3 H. L. C. 742 . . . . 591 
 Cutter V. Powell (1795) 2 Sm. L; C. 1 ; 6 T. E. 320 385, 437 
 
 Cutts V. Ward (1867) L. E. 2 Q. B. 357; 36 L. J. Q. B. 161 ; 
 
 15L. T. 614; 15 W. E. 445 686 
 
 Da Costa v. Davis (1778) Cowp. 729 .. . 277, 382 
 
 Dacre v. Gorges (1825) 2 S. & St. 454 431 
 
 Dale I'. Hamilton (1846) 5 Ha. 369 612 
 
 Dally V. Wonham (1863) 33 Beav. 154; 11 W. E. 1090 . 568 
 D'Alteyrac, IJx parte (1872) 15 Eq. 36; 42 L. J. Ch. 6; 27 
 
 L. T. 750; 21 W. E. 50 467 
 
 Dalton V. Angus (1881) 6 App. Ca. 740 ; 50 L. J. Q. B. 689; 
 
 44 L. T. 844 ; 30 W. E. 196 228 
 
 Dalton /■. Gib (1839) 7 Scott, 117; 5 Bing. N. C. 198; 1 Am. 
 
 463 ; 3 Jur. 43 70 
 
 Dalton V. Midland Ey. Co. (1853) 13 C. B. 474; 22 L. J. 
 
 C. P. 177; 17 Jur. 719 80
 
 xl TAHLE OF CASES. 
 
 Daniel's sett. tr. Re (1875) 1 Ch. Div. 375; 45 L. J. Ch. 105 ; 
 
 34 L. T. 308 ; 24 W. E. 227 452 
 
 Darrell v. Tibbitts (1880) 5 Q. B. Div. 560; 50 L. J. Q. B. 
 
 33 ; 42 L. T. 797 ; 29 W. E. 66 ; 44 J. P. 695 . . . 492 
 Dashwood v. Jermyn (1879) 12 Ch. D. 776; 27 W, E. 868 . 695 
 Daubuzw. Morslieacl (1815) 6 Taunt. 332 . . . .280 
 Dauglish V. Tennent (1866) 8 B. & S. 1 ; L. E. 2 Q. B. 49 ; 
 
 36L. J. a B. 10; 15 W. E. 196 238 
 
 Davenport v. Bishopp (1843) 2 Y. & C. 451 ; 1 Ph. 698 . 202 
 Davenport v. Eeg. (1877) 3 App. Ca. 115 ; 47 L. J. P. C. 8; 
 
 37 L. T. 727 53 
 
 Davey v. Shannon (1879) 4 Ex. D. 81; 48 L. J. Ex. 459; 
 
 40 L. T. 628 ; 27 W. E. 599 315,318 
 
 Davies v. Davies (1870) 9 Eq. 468; 39 L. J. Ch. 343; 22 
 
 L. T. 505 ; 18 W. E. 634 58, 61 
 
 Davies v. Fitton (1842) 2 Dr. & War. 225 . . . 471, 472 
 Davies v. Jenkins (1877) 6 Ch. D. 728; 26 W. E. 260; 22 
 
 Sol. J. 385 . . .649 
 
 Davies v. London and Provincial Marine Insurance Co. 
 
 (1878)8Ch.D.469;47L.J.Ch.511;38L.T.478;26W.E.794.493 
 Davis V. Duke of Marlborough (1818) 1 Swanst. 74 . . 287 
 Davis V. Thomas (1830) 1 Euss. & M. 506 . . . . 466 
 Dawes v. Harness (1875) L. E. 10 C. P. 166 ; 44 L. J. C. P. 
 
 194; 32 L. T. 159; 23 W. E. 398 539 
 
 Dawson v. Fitzgerald (1876) L. E. 9 Ex. 7; 1 Ex. Div. 257; 
 
 45 L. J. Ex. 893; 35 L. T. 220 ; 24 W, E. 773 . . 293 
 
 Day V. Newman (1788) 2 Cox, 77 . . . . 577, 578 
 Deacon v. Gridley (1854) 15 C. B. 295; 3 C. L. E. 129 ; 24 
 
 L. J. C. P. 17 177, 601 
 
 Dearie v. Hall (1823) 3 Euss. 1 209 
 
 DeBeilv. Thomson (1841) 3 Beav. 469; 12 CI. & Fin. 45 . 310,692 
 
 Debenham v. Ox (1849) 1 Ves. sen. 276 309 
 
 De Busscho v. Alt (1877) 8 Ch. Div. 286 ; 47 L. J. Ch. 386; 
 
 38 L. T. 370 245, 549 
 
 De GaiUon v. L'Aigle (1798) 1 Bos. & P. 357 . . . 82 
 De Hoghton v. Money (1866) 2 Ch. 164; 15 L. T. 403; 15 
 
 W. E. 214 193, 295, 299 
 
 De La Touche's Settlement, Re (1870) 10 Eq. 599 ; 40 L. J. 
 
 Ch. 85 454 
 
 De Mattos v. Gibson (1858) 4 De G. & J. 276 ; 32 L. T. 0. S. 
 
 268; 5 Jur. N. S. 347; 7 W. E. 100, 152 . . . . 224 
 Dendy v. Henderson (1855) 11 Ex. 194; 24 L. J. Ex. 324 . 316 
 De Nicholls v. Saunders (1870) L. E. 5 C. P. 589; 39 L. J. 
 
 C. P. 297 ; 22 L. T. 661 ; 18 W. E. 1106 . . . . 425 
 Denn v. Wilford (1826) 8 Dow. & Ey. 549 . . . . 455 
 Dennett v. Athcrton (1872) L. E. 7 Q. B. 316; 41 L. J. Q. B. 
 
 165; 20 W. E. 442 230 
 
 Denny v. Hancock (1870)6 Ch.l; 23L.T.686; 19W.E.54 . 432 
 Dent V. Bennett (1839) 4 My. & Cr. 269; 7 Sim. 539; 
 
 3 Jur. 99 557, 559, 561, 562, 571 
 
 Denton v. G. N. Ey. Co. (1856) 5E. & B. 860; 25 L. J. Q. B. 
 
 129; 2 Jur. N. S. 185 14, 17, 21, 22 
 
 Denton v. Peters (1870) L. E. 5 Q. B. 475 ; 23 L. T. 281 . 218
 
 TABLE OF CASES. xli 
 
 I'AOE 
 
 Doi)OHit Lifo Assurance Co. r. Ayscough. (ISOG) G E. & B. 
 
 761 ; 26 L. J. Q. B. 29; 2 Jur. N. S. 812 . . . . 539 
 Derry v. Duchess of Mazariiio (1697) 1 Ld. Eaym. 147; 
 
 1 8alk. 116, VAii 82 
 
 Devonshire's, Earl of, Case (1607) 11 Co. Hep. 89 a . .141 
 Dew V. Parsous (1819) 2 B. & Aid. 562; 1 Chit. 295 . 555, 556 
 De Wahlr.Braune( 1856)1 It. &N. 178; 25 L. J. Ex. 343. 81,95 
 De Wutz V. Hendricks (1824) 2 Biny. 314; 9 Moore, 586 . 281 
 Dickinson v. Burrell (1866) 1 Eq. 337; 35 L. J. Ch. 371 ; 
 
 12 Jur. N. S. 199; 14 W. E. 412 299 
 
 Dickinson v. Dodds(1876)2 Ch. Div. 463; 45 L.J. Ch. 777; 
 
 34 L. T. 607 ; 24 W. E. 594 ... 24, 27, 29, 37 
 Dickinson v. Yaljiy (1829) 10 B. & C. 128; 5 M. & E. 126 . 129 
 Dickson v. Eeuters Telegram Co. (1877) 2 C. P. D. 62; 
 
 3 C. P. Div. 1 ; 47 L. J. C. P. 1 ; 37 L. T. 370 ; 26 W. E. 23 . 201 
 Dickson V. Swansea Vale Ey. Co. (1868) L. E. 4 Q. B. 44 ; 
 
 38 L. J. Q. B. 17 ; 19 L. T. 346 ; 17 W. E. 51 . . . 215 
 Diggle V. Higgs (1877) 2 Ex. Div. 422 ; 46 L. J. Ex. 721 ; 
 
 37 L. T. 27; 25 W. E. 777 . . . . 259, 335, 685 
 Diggle V. London and Blackwall Ey. Co. (1850) 5 Ex. 442; 
 
 6 Eailw. Ca. 590 ; 19 L. J. Ex. 308; 14 Jur. 937 . . 150 
 Dillon V. Cunningham (1872) L. E. 8 Ex. 23; 42 L. J. Ex. 
 
 11; 27 L. T. 830 651 
 
 Dimmock v. Hallett (1866) 2 Ch. 21 ; 36 L. J. Ch. 146; 15 
 
 L. T. 374 ; 12 Jur. N. S. 953 ; 15 W. E. 93 . . . 498 
 Dinn v. Blake (1875) L. E. 10 C. P. 388; 44 L. J. C. P. 276; 
 
 32 L. T. 489 404 
 
 Ditcham v. Worrall (1880) 5 C. P. D. 410; 49 L. J. C. P. 
 
 688 ; 43 L. T. 286 ; 29 W. E. 59 ; 44 J. P. 799 . 61, 62 
 DLxon, Ex parte (1876) 4 Ch. Div. 133 ; 46 L. J. Bk. 20; 35 
 
 L. T. 644 ; 25 W. E. 105 101 
 
 Dixon V. Bovill (1856) 3 Macq. 1 ; 2 Jur. N. S. 933 . . 220 
 Dobell V. Stevens (1825) 3 B. & C. 623; 5 D. & E. 490 . . 525 
 Doe d. Bennett v. Hale (1850) 15 Q. B. 171 ... 627 
 
 Doe d. Bryan v. Bancks (1821) 4 B. & Aid. 401 ; Gow, 220 . 53 
 Doe d. Garnonsr.Knight(1826)5B.&C.671; 8D.&E. 348. 48 
 Doe d. Leach v. Micklem (1805) 6 East, 486; 2 Smith, 499 . 452 
 Doe d. Pennington v. Taniere (1848) 12 Q. B. 998; 18 L. J. 
 
 Q. B. 49; 13 Jur. 119 155 
 
 Doe d. Williams v. Evans (1845) 1 C. B. 717 ; 14 L. J. C. P. 
 
 237; 9 Jur. 712 301 
 
 Don V. Lippmann (1837) 5 CI. & Fin. 1 . . . . 603 
 Donaldson v. Earwell (1876) 3 Otto (93 U. S.) 631 . 512, 541 
 Douglas V. Culverwell (1862) 31 L. J. Ch. 543 ; 6 L. T. 272; 
 
 10 W. E. 327 466 
 
 Downes v. Jennings (1863) 32 Beav. 290; 8 L. T. 341; 11 
 
 W. E. 522 247, 248 
 
 Dresser v. Norwood (1863) 14 C. B. N. S. 574; 17 ih. 466; 
 
 32L.J.C.P.201; MihAS; lOJur. N.S.851; 12W.E. 1030 . 97,101 
 Drew V. Nunn (1879) 4 Q. B. Div. 661 ; 48 L. J. Q. B. 591; 
 
 40L. T. 671 ; 27 W. E. 810 . . . 38,88,94,97 
 
 Druiff V. Lord Parker (1868) 5 Eq. 131 ; 37 L. J. Ch. 241 ; 
 
 IS L. T. 46 ; 16 W. E. 557 ... . 458, 470, 473
 
 xlii TABLE OF CASES. 
 
 Dublin and Wicklow Ey. Co. v. Black (1852) 8 Ex. 181 ; 
 
 7 Eailw. Ca. 434 ; 22 L. J. Ex. 94 64 
 
 Duckett r. Gover (1877) 6 Ch. D. 82; 46 L. J. Cli. 407; 25 
 
 AV. E. 455 664 
 
 Dudgeon v. Pembroke (1874) L. E. 9 Q. B. 581; 43 L. J. 
 
 Q. B. 220; 31 L. T. 31 ; 22 W. E. 914 . . . 325, 684 
 Dugdale r. Loveriug (1875) L. E. 10 C. V. 196; 44 L. J. 
 
 C. P. 197; 32L. T. 155; 23 W. E. 391 . . . . 10 
 Duke V. Andrews (1848) 2 Ex. 290; 5 Eailw. Ca. 496; 17 
 
 L. J. Ex. 231 41 
 
 Duncan v. Cashin (1875) L. E. 10 C. P. 554 ; 44 L. J. C. P. 
 
 396; 32 L. T. 497; 23 W. E. 561 646 
 
 Duncan, Fox & Co. v. N. & S. Wales Bank (1880) 11 Ch. 
 
 Div. 88 ; 6 App. Ca. 15 ; 50 L. J. Ch. 355 ; 43 L. T. 706 ; 
 
 29 W. E. 763 243 
 
 Duncan v. Topham (1849) 8 C. B. 225 ; 18 L. J. C. P. 310 . 641 
 Dundas v. Dutens (1790) 1 Ves. jun. 199 . . . . 614 
 Dunlop V. Higgins (1848) 1 H. L. C. 381 ; 12 Jur. 295 . . 641 
 Dunmore, Countess of, v. Alexander (1830) 9 Shaw & Dun- 
 lop, 190 640 
 
 Dunnage v. White (1818) 1 Swanst. 137 574 
 
 Dunne v. English (1874) 18 Eq. 524; 31 L. T. 75 . . 246 
 Dunston v. Imperial Gas Light Co. (1832) 3 B. & Ad. 125 . 153 
 Durham, Earl of v. Legard (1865) 34 Beav. 611 ; 34 L. J. 
 
 Ch. 589; 11 Jur. N. S. 706 440,499 
 
 Dutton V. Marsh (1871) L. E. 6 Q. B. 361 ; 40 L. J. Q. B. 
 
 175; 24 L. T. 470; 19 AV. E. 754 .. . 98, 219 
 
 Dutton V. Poole (1677) 2 Lev. 210 ; A^ent. 318 . . . 201 
 Dutton V. Thompson (1883) 23 Ch. Div. 278; 52 L. J. Ch. 
 
 661 ; 31 AV. E. 596 564 
 
 Duvergier v. Fellows ^1830) 10 B. & C. 826; 5 Bing. 248; 
 
 5 M. & P. 403 328 
 
 Dyer v. Hargrave (1805) 10 A^es. 505 . . 497, 524, 525 
 
 Eagle Insurance Co., Ex parte (1858) 4 K. & J. 549; 27 
 L. J. Ch. 829 ; 6 AV. E. 779 665 
 
 Eaglesfield v. Marquis of Londonderry (1876) 4 Ch. Div. 
 693; 35 L. T. 822; 38 ih. 303; 25 W. E. 190 ; 26 ih. 540 . . 406, 
 
 428 
 
 Earle v. nopwood (1861) 9 C. B. N. S. 566: 30 L. J. C. P. 217; 
 
 3 L. T. 670 ; 7 Jur. N. S. 775 ; 9 AV. E. 272 . . . 297 
 East Anglian Ey. Co. v. E. C. Ey. Co. (1851) 11 C. B. 775; 
 
 21 L. J. C. P. 23 ; 16 Jur. 249 656 
 
 East London AVaterworks Co. v. Ikiilcy (1827) 4 Bing. 283; 
 
 1 2 Moore, 533 149 
 
 Eastern Counties Ey. Co. v. Ilawkes (1855) 1 D. M. G. 737; 
 
 5 H. L. C. 331 ; 24 L. J. Ch. 601 . . . 060, 669 
 
 Eastwood V. Kenyon (1840) 11 A. & E. 438; 3 P. & D. 276; 
 
 4 Jur. 1081 159, 169 
 
 Eaton V. Basker (1881) 7 (l B. Div. 529; 50 L. J. Q. B. 444; 
 
 44 L. T. 703 ; 29 AV. E. 597 ; 45 J. P. (;16 . . . . 156 
 Ebbw \;\Vi Co.'s Case (1869) 8 Eq. 14 ; 20 L. T. 964 . . 151
 
 TABLE OF CASES. xlui 
 
 Ecclesiastical Commrs. v. Uevnd (1SG9) L. E. 4 Ex. 102; 
 
 ■68 L. J. Ex. D3; 2U L. T. oTii; 17 W. E. 07(5 . . . 154 
 Edgware Iligliway Board v. Harrow Gas Co. (1874) L. E. 
 
 10 Q. B. 92 ; 44 L. J. (i. B. 1 ; 31 L. T. 402 . . 107, 330 
 Edmunds v. Busholl (180 J) L. E. 1 U. B. 97; 35 L. J. Q. B. 
 
 20; 12 Jur. N. S. 332 . 99 
 
 Edwards v. Aborayron, &c. Society (1875-0) 1 Q. B. D. 503; 
 
 34 L. T. 457 293 
 
 Edwards ('.Brown(1831)lC.& J. 307; lTyr.182; 3Y.& J.423.414 
 Edwards r. Burt (1852) 2 D. M. G. do .... 588 
 
 Edwards v. Meyrick (1842) 2 Ha. 00 508 
 
 Edwards r. Midland Ev. Co. (1880) Q. B. D. 287; 50 L. J. 
 
 Q. B. 281 ; 43 L. T. 094 ; 29 W. E. 009 ; 45 J. l\ 374 .115 
 Egan v. Guardians of Kensington Union (1841) 3 G. & D. 
 
 204; 3 Q. B. 935, n 027 
 
 Egerton v. Earl Brownlow (1853) 1 Sim. N. S. 404; 4 H. L. 
 
 C. 1 ; 23 L. J. Ch. 348 ; 18 Jur. 71 . 272, 273, 274, 277 
 
 Eichholz V. Bannister (1804) 17 C. B. N. S. 708; 34 L. J. 
 
 C. P. 105 ; 12 L. T. 70; 11 Jur. N. S. 15; 13 W. E. 90 . 429 
 Elbinger Actien-Gesellschaft v. Claye (1873) L. E. 8 Q. B. 
 
 313; affirmed on another point, 9 ib. 473 ; 43 L. J. Q,. B. 
 
 211; 30 L. T. 871; 23 W. E. 127 98 
 
 Eley V. Positive Assurance Co. (1870) 1 Ex. Div. 20, 88; 45 
 
 Jj. J. Ex. 451 ; 34 L. T. 190 .... 101, 203 
 
 Eliason v. Henshaw (1819) 4 Wheat. 225; Langdell, Sel. 
 
 Ca. on Cont. 48 25 
 
 Ellen I'. Topp (1851)0 Ex. 424; 20 L. J. Ex. 241; 15Jur.451. 381 
 Elliot V. Ince (1857) 7 D. M. G. 475; 20 L. J. Ch. 821 ; 
 
 3 Jur. N. S. 597 92, 93 
 
 Elliott V. Eichardson (1870) L. E. 5 0. P. 744; 39 L. J. C. P. 
 
 340; 22 L. T. 858; 18 W. E. 1157 291 
 
 Elliott V. Eoyal Exchange Assurance Co. (1807) L. E. 2 Ex. 
 
 237; 30 L. J. Ex. 129 ; 10 L. T. 399; 15 W. E. 907 . 293 
 ElHs V. Barker (1871) 7 Ch. 104; 41 L. J. Ch. 04; 
 
 088 ; 20 W. E. 100 
 
 Eltham v. Kingsman (1818) 1 B. & Aid. 083 
 
 Elwell V. Martin, 32 Yt. 217 
 
 Emmerson's Case (1800) 1 Ch. 433; 14 L. T. 740; 
 
 592 ; 14 W. E. 905 
 
 Empress Engineering Co. (1880) 10 Ch. Div. 125; 43 L. T. 
 
 742 ; 29 W. E. 342 107,203 
 
 Empson'sCase(1870)9Eq. 597; 22L. T. 855; 18W. E.505 . 417 
 England v. Davidson (1840) 11 A. & E. 850 ; 3 P. & D. 594 ; 
 
 4 Jur. 1032 177 
 
 England v. Downs (1840) 2 Beav. 522 247 
 
 English and Foreign Credit Co. v. Arduin (1870-1) L. E. 
 
 5 H. L. 04 ; 40 L. J. Ex. 108 . . •. . . .40 
 Equitable Insurance Co. v. Hearne (1874) 20 "Wallace (Sup. 
 
 Ct. U. S.) 494 475 
 
 Erlanger v. New Sombrero Phosphate Co. (1878) 3 App. Ca. 
 1218; 48 L. J. Ch. 73; 39 L. T. 209; 27 W. E. 05; 
 affirming 5 Ch. Div. 73 ; 40 L. J. Ch. 425 ; 30 L. T. 222; 
 25W. E. 430 509,551,500 
 
 25 L. T. 
 
 
 572, 
 
 595 
 
 , 
 
 272 
 
 
 75 
 
 12 Jur. 
 
 
 
 442
 
 xliv TABLE OF CASES. 
 
 PAQE 
 
 Ernest v. NichoUs (1857) 6 H. L. C. 401 ; 30 L. T. 0. S. 45 ; 
 
 3 Jur. N. S. 919 ; 6 W. E. 24 . . . . 665, 666 
 Erskino v. Adeane (1873) 8 Ch. 756 ; 42 L. J. Ch. 835 ; 29 
 
 L. T. 234 ; 21 W. R. 802 160, 364, 699 
 
 Esposito V. Bowden (1857)4 E. & B. 903; 7 ib. 763; 24 
 
 L.J. Q. B.210; 21ih. 17; 3 Jur. N. S. 1209 . 278,279,346, 347 
 Estcourt V. Estcourt Hop Essence Co. (1875) 10 Ch. 276; 
 
 44 L. J. Cli. 223 ; 32 L. T. 80 ; 23 W. R. 313 . . . 269 
 
 Evansi'. Bicknell(1801) 6 Ves. 174 692 
 
 Evans v. Bremridge fl856) 8 D. M. G. 100; 2 K. & J. 174 ; 
 
 25 L. J. Ch. 334 ; 2 Jur. N. S. 311 495 
 
 Evans v. Carrington (1860) 2 D. F. J. 481 ; 30 L. J. Ch. 364; 
 
 4 L. T. 65 ; 7 Jur. N. S. 197 .. . 267, 511, 512 
 Evans v. Edmonds (1853) 13 C. B. 777 ; 1 C. L. E. 653; 22 
 
 L. J. C. P. 211; 21L. T. 0. S. 155; 17 Jur. 883; 1 W. E. 
 
 412 512, 515, 517 
 
 Evans v. Llewellyn (1787) 2 Bro. C. C. 150; 1 Cox, 333 . 590, 592 
 Evans v. Prothero (1852) 2 Mac. & G. 319; 1 D. M. G. 572; 
 
 21 L. J. Ch. 772 620 
 
 Evans v. Smallcombe (1868) L. R. 3 II. L. 249 ; 19 L. T. 207 . 667 
 Evanturel v. Evantarel (1874) L. R. 6 P. C. 1 ; 43 L. J. 
 
 P. C. 58 ; 31 L. T. 105 ; 23 W. R. 32 . . . . 275 
 Evelyn v. Chichester (1765) 3 Burr. 1717; Bull. 154 . . 64 
 Everitt v. Everitt (1870) 10 Eq. 405; 39 L. J. Ch. 777; 23 
 
 L. T. 136 ; 18 W. R. 1020 564 
 
 Exton V. Scott (1833) 6 Sim. 31 48 
 
 Eaine v. Brown (1750) cited 2 Yes. sen. 306 ... 578 
 
 Fairhurst v. Liverpool Adelphi Loan Association (1854) 9 
 
 Ex.422; 23 L. J. Ex. 164 79 
 
 Eairlie v. Fenton (1870) L. R. 5 Ex. 169; 39 L. J. Ex. 107; 
 
 22 L. T. 373 98 
 
 Falcke v. Gray (1859) 4 Drew. 651 ; 29 L. J. Ch. 28 ; 33 
 
 L. T. 0. S. 297 ; 5 Jur. N. S. 645 ; 7 W. R. 535 . . . 578 
 
 Fane v. Fane (1875) 20 Eq. 698 507 
 
 Farewell V. Coker (1726) 2 Mer. 353 461 
 
 Parmer v. Farmer (1848) 1 H. L. C. 724 . . . . 559 
 Farrow v. Wilson (1869) L. R. 4 C. P. 744; 38 L. J. C. P. 
 
 326; 18 W. R. 43 189, 374 
 
 FavioU V. E. C. Ry. Co. (1848) 6 D. & L. 54 ; 2 Ex. 344 ; 
 
 17 L. J. Ex. 223 153 
 
 Fawcctt V. Whitehouso (1829) 1 R. & M. 132 . . . . 508 
 Fellowesr.LordGwydvr(1826)l Sim. 63; lRuss.& M.83 . 104,105 
 Fclthouso V. Bindley (1862) 11 C. B. N. S. 869; 31 L. J. 
 
 C. P. 204 ; 6 L. T. 157 ; 10 AV. R. 423 ... 25, 37 
 
 Foltmakcrs, Co. of, v. Davis (1797) 1 Bos. & P. N. R. 98 . 200 
 Feret /•. Hill (1854) 15 C. B. 207 ; 2 C. L. R. 186 ; 23 L. J. 
 
 C.I'. 185; 23li.T.O.S.158; 18 Jur. 1014; 2W. R.493 . 324,512 
 Ferguson v. Carrington (18^-9) 9 B. & C. 59; 3 C. & P. 457 . 512,537 
 FcrgusRon 7'. Norman (1838) ,5 Bing. N. C. 76; 6 Scott, 
 
 794; lArn. 418; 3 Jur. 10 256
 
 TABLE OF CASES. xlv 
 
 PAGE 
 
 Ferraud v. Bisclioffslieim (1858) 4 C. B. N. S. 710; 27 L. J. 
 
 0. P. 302 100 
 
 Field V. Moore (1855) 7 D. M. G. 691 ; 25 L. J. Ch. 6G; 26 
 
 L. T. O. S. 207 ; 2 Jur. N. S. 145 ; 4 W. R. 187 . . . 58 
 Fife V. Clayton (1807) 13 Ves. 546; 1 C. P. Coo-pev {te7np. 
 
 Cottenham) 351 468 
 
 Financial Corporation's claim (1868) 3 Ch. 355 ; 37 L. J. 
 
 Ch. 362; 18L. T. 171; 16 W. R. 637 214 
 
 Findon v. Parker (1843) 11 M. & W. 675; 12 L. J. Ex. 444; 
 
 7 Jur. 903 303 
 
 Finlay v. Bristol and Exeter Ey. Co. (1852) 7 Ex. 409 ; 
 
 7 Eailw. Ca. 449; 21 L. J. Ex. 117 . . . 150,150 
 Firth V. Midland Ey. Co. (1875) 20 Eq. 100; 44 L. J. Ch. 
 
 313; 32 L. T. 219; 23 W. E. 509 379 
 
 Fischer v. Kamala Naicker (I860) 8 Moo. Ind. App. 170 . 303 
 Fisher & Co. v. ApolHnaris Co. (1875) 10 Ch. 297; 44 L. J. 
 
 Ch. 500; 32 L. T. 621; 23 W. E. 460 . . . . 289 
 Fisher v. Bridges (1853) 2 E. & B. 118 ; 3 ib. 642 ; 22 L. J. 
 
 Q. B. 270; 23 ib. 276; 21 L. T. 0. S. 100; 1 Jur. N. S. 
 
 157 ; 1 W. E. 350 326, 327 
 
 Fisher v. Liverpool Marine Insurance Co. (1873) L. E. 8 
 
 Q. B. 469 ; 9 ib. 418 ; 43 L. J. Q. B. 1 14 ; 30 L. T. 501 ; 
 
 22 W. E. 951 616, 618 
 
 Fishmongers' Co. v. Robertson (1843) 5 M. & Gr. 131; 6 
 
 Scott, N. E. 56 ; 12 L. J. C. P. 185 . . . 146, 154 
 Fitch V. Jones (1855) 5 E. & B. 238 ; 24 L. J. Q. B. 293; 
 
 1 Jur. N. S. 854 259, 355 
 
 Fitzgerald v. Chapman (1875) 1 Ch. D. 563; 45 L. J. Ch. 
 
 23; 33 L. T. 587; 24 W. E. 130 84 
 
 Fivaz V. NichoUs (1846) 2 C. B. 501; 15 L. J. C. P. 125; 
 
 10 Jur. 50 333 
 
 Fleet V. Murton (1871) L. E. 7 Q. B. 126; 41 L. J. Q. B. 
 
 49 ; 26 L. T. 181 ; 20 W. E. 97 . . . . 95, 99, 110 
 Fleeti;.Perrins(1869)L.E. 3Q. B. 536; 4 ib. 500; 9 B. & S. 
 
 575; 38 L.J. Q. B. 257; 20 L. T. 814; 17 W. E. 862 . 80 
 Fletcher v. Fletcher (1845) 14 L. J. Ch. 66 . . . . 48 
 Flight V. Bolland (1828) 4 Euss. 298 . . . . 59, 62 
 Flight V. Booth (1834) 1 Bing. N. C. 370 ; 1 Scott, 190 . 440, 495 
 FUghtv. Eeed (1863) 1 H. & C. 703; 32 L. J. Ex. 265; 
 
 9 Jur. N. S. 1016; 12 W. E. 53 . . . 64, 632, 6S5 
 Flint V. Woodin (1852) 9 Ha. 618 ; 16 Jur. 719 . . . 518 
 Flureau v. Thornhill (1776) 2 W. Bl. 1078 . . . ,440 
 
 Foakes i;. Beer (1884) 9 App. Ca. 605 180 
 
 Forbes & Co.'s claim (1875) 19 Eq. 485; 44 L. J. Ch. 761 ; 
 
 23 W. E. 464 492 
 
 Forbes v. Cochrane (18241 2 B. & C. 448 ; 3 D. & E. 679 . 340 
 Forbes v. Watt (1872) L. E. 2 Sc. & D. 214 . . . 403 
 Ford V. Beech (1848) 11 Q. B. 852; 5 D. & L. 610; 17 L. J. 
 
 Q. B. 114; 12 Jur. 310 453 
 
 Ford V. Cotesworth (1870) L. E. 5 Q. B. 544; 10 B. & S. 991; 
 
 39 L. J. Q. B. 188 ; 23 L. T. 165 ; 18 W. E. 1169 . . 362 
 Ford V. Olden (1867) 3 Eq. 461; 36 L. J. Ch. 651; 15 L. T. 
 
 558 575, 594
 
 slvi TABLE OF CASES. 
 
 PAGE 
 
 Ford V. White (1852) 16 Beav. 120 211 
 
 Forman v. Wright (1851) 11 C. B. 481 ; 20 L. J. C. P. 145 ; 
 
 15 Jur. TOG 409, 584 
 
 Forrest v. Manchester, &c. Ey. Co. (18G1) 4 D. F. J. 126; 
 
 30 Beav. 40 063 
 
 Foster v. Cockerell (1835) 3 CI. & Fin. 456 . . . . 209 
 Foster v. Mackinnon (1869) L. E. 4 C. P. 704; 38 L. J. C. P. 
 
 310; 20 L. T. 887 ; 17 W. E. 1105 . 413, 416, 418, 448, 449 
 
 Foster v. Eedgrave (1866) L. E. 4 Ex. 35, n 69 
 
 Foulkes t'. Metropolitan District Ey. Co. (1880) 4 C. P. D. 
 
 267; 5 C. P. Div. 157; 49 L. J. C. P. 361; 42 L. T. 345; 
 
 28 W. E. 526 399 
 
 Foimtaine v. Carmarthen Ey. Co. (1868) 5 Eq. 316; 37 L. J. 
 
 Ch. 429 ; 16 W. E. 476 664 
 
 Fowler v. Fowler (1859) 4 De G. & J. 250 . . . . 473 
 Fowler v. HoUins (1872) L. E. 7 Q. B. 616; 7 H. L. 757 ; 
 
 20 W. E. 868 395 
 
 Fowler v. Monmouthshire Canal Co. (1879) 4 Q. B. D. 334; 
 
 48 L. J. Q. B. 457 ; 41 L. T. 159 ; 27 W. E. 659 . . 621 
 Fox V. Nott (1861) 6 H. & N. 630; 30 L. J. Ex. 259; 4 L. T. 
 
 663 227 
 
 Franks, Ex parte (1831) 7 Bing. 762 ; 1 M. & Scott, 1 . 81 
 
 Franks v. Duchess of Pienne (1797) 2 Esp. 587 . . . 82 
 Eraser v. Hill (1853) 1 McQu. 392; 1 C. L. E. 7 . . 329 
 
 " Freedom," The (1871) L E. 3 P. C. 594 ; 24 L. T. 452 . 227 
 Freeman v. Jeffries (1869) L. E. 4 Ex. 189; 38 L. J. Ex. 
 
 116; 20 L. T. 533 543 
 
 Frend v. Dennett (1858) 4 C. B. N. S. 576; 27 L. J. C. P. 
 
 314 ; 4 Jur. N. S. 897 156 
 
 Freshfield's Trusts, Re (1879) 11 Ch. D. 198; 40 L. T. 57 ; 
 
 27 W. E. 375 209 
 
 Frost V. Knight (1870) L. E. 5 Ex. 322 ; 7 ib. Ill ; 41 L. J. 
 
 Ex. 78, 82 ; 26 L. T. 77 ; 20 W. E. 471 . . 18, 24, 248 
 Fuentcsv. Montis (1868) L. E. 3 C. P. 268; 4 ib. 93; 38 
 
 L. J. C. P. 95 ; 19 L. T. 364 ; 17 W. E. 208 . . . 227 
 Fullalove v. Parker (1862) 12 C. B. N. S. 246; 31 L. J. C. P. 
 
 239; 6 L. T. 353; 8 Jur. N. S. 1078 ; 10 W. E. 581 . . 621 
 Fulton V. Andrew (1875) L. E. 7 H. L. 448; 44 L. J. P. 17; 
 
 32 L. T. 209 ; 23 AV. E. 566 .... 413, 558, 691 
 Furnival /•. Coombes (1843) 5 M. & Gr. 736; 6 Scott, N. E. 
 
 522 ; 12 L. J. C. P. 265; 7 Jur. 399 108 
 
 Furtado v. Eodgors (1802) 3 B. & P. 191 . . . . 278 
 
 Gabell V. S. E. Ey. Co. (1877) 2 C. P. Div. 416; 46 L. J. 
 
 C. P. 768 ; 37 L. T. 510 ; 25 W. E. 564 . . . . 47 
 Gadd V. Houghton (1876) 1 Ex. Div. 357; 46 L. J. Ex. 71; 
 
 35 L. T. 222 ; 24 W. E. 975 99 
 
 Galo V. Oalo (lh77) 6 Ch. D. 144; 46 L. J. Ch. 809; 36 L. T. 
 
 690; 25 W. E. 772 199 
 
 Galloway r. Mayor of London (1866) L. E. 1 11. L. 34 ; 35 
 
 L. J. Ch. 477 ; 14 L. T. 865 ; 12 Jur. N. S. 747 . . 124
 
 TABLE Ol" CASES. xlvii 
 
 PAGE 
 
 Gardner r. Cazenovo (18j6) 1 H. & N. 423; 2G L. J. Ex. 17; 
 
 o W. E. 19,5 4GG 
 
 Garland v. Carlisle (1837) 4 CI. & Fin. 693 . . . . 396 
 Garnons (Doe d.)r.Kni-lit(l 826^0 B.&C. 671; 8D. &R.348 . 48 
 Garrard v. Frankel (1862) 30 Beav. 445; 31 L. J. Cli. 604 ; 
 
 8 Jur. N. S. 985 430, 477 
 
 Gas Light and Coke Co. ?•. Turner (1839) 5 Bing. N. C. 666; 
 
 6 ib. 324 ; 7 Scott, 779 ; 8 ib. 609 323 
 
 Geere v. Mare (1863) 2 H. & C. 339; 33 L. J. Ex. 50; 8 
 
 L. T. 463 328 
 
 Geipel v. Smith (1872) L. R. 7 Q. B. 404 ; 41 L. J. Q. B. 
 
 153 ; 26 L. T. 361 ; 20 W. E. 332 . . 279, 373, 378 
 Gerhard i: Bates (1853) 2 El. & B. 476; 22 L. J. Q. B. 365; 
 
 17 Jur. 1097 534 
 
 Gibbon V. Budd (1863) 2 H. & C. 92 ; 32 L. J. Ex. 182; 
 
 8 L. T. 321 ; 9 Jur. N. S. 525 623 
 
 Gibbons v. N. E. Metropolitan Asylum District (1847) 11 
 
 Beav. 1 40 
 
 Gibbs V. Harding (1870) 5 Ch. 336 ; 39 L. J. Ch. 374 ; 18 
 
 W. E. 361 266 
 
 Gibson v. D'Este (1843) 2 Y. & C. Ch. 542 . . . . 505 
 Gibsoni'.EastIndiaCo.(1839)5Bing. N. C.262; 7 Scott, 74. 153 
 Gibson v. Jeyes (1801) 6 Yes. 266 . . . 558, 559, 566 
 Gibson V. Kirk (1841) 1 Q. B. 850; 1 G. & D. 252; 10 
 
 L. J. Q. B. 297 ; 6 Jur. 99 155 
 
 Gidley v. Lord Palmerston (1822) 3 Bro. & Bing. 275; 7 
 
 Moore, 91 100 
 
 Gilbert r. Lewis (1862) 1 D. J. S. 38 ; 2 J. & II. 452; 32 
 
 L.J.Ch.347; 7L.T. 541; 9 Jur. N.S. 187; inYE.223 . 551 
 
 Gilbert r.Sykes (1812) 16 East, 150 272 
 
 Giles V. Edwards (1797) 7 T. E. 181 380 
 
 Gilkes V. Leonino (1858) 4 C. B. N. S. 485; 31 L. T. 0. S. 
 
 181 ; 4 Jm\ N. S. 537 ; 6 W. E. 620 23 
 
 Glasspoole r. Young (1829) 9 B. & C. 696 . . . . 396 
 Goddard v. O'Brien (1882) 9 Q. B. D. 37 . . . . 179 
 
 Goddard r. Snow (1826 i 1 Euss. 485 247 
 
 Godwin v. Francis (1870) L. E. 5 C. P. 295 ; 39 L. J. C. P. 
 
 121 ; 22 L. T. 338 106 
 
 Goman v. Salisbury (1684) 1 Vern. 240; Eq. Ca. Ab. 22 . 457 
 Gompertz v. Bartlett (1853) 2 E. & B. 849; 2 C. L. E. 395; 
 
 23 L. J. Q. B. 65 ; 18 Jur. 266 436 
 
 Gooch's Case (1872) 8 Ch. 266; 42 L. J. Ch. 381 ; 28 L. T. 
 
 148; 21 W. E. 181 56, 57 
 
 Good V. Elliott (1790) 3 T. E. 693 271 
 
 Goodet'. Harrison (1821) 5 B. & Aid. 147 .... 56 
 Goodman r. Harvey (1836) 4 A. & E. 870 ; 6 N. & M. 372 . 218 
 Goodman v. Sayers (1820) 2 Jac. & ^V. 249 . . . . 410 
 Goodwin V. Eobarts (1876) L. E. 10 Ex.16, 337; 1 Aj^p. Ca. 
 
 476; 45 L.J. Ex. 748; 35 L.T. 179; 24 W.E. 987 . 219,220 
 Gordon v. Gordon (1816-9) 3 Swanst. 400, 473 . . . 507 
 Gore V. Gibson (1845) 13 M. & W. 623; 14 L. J. Ex. 151 ; 
 
 9 Jur. 140 88, 90, 418 
 
 Gorgier v. MieviUe (1824) 3 B. & C. 45 220
 
 xlviii TAIUJ". OF CASES. 
 
 PAGE 
 
 Gover's Case (1875) 20 Eq. 114; 1 Ch. Div. 182 ; 45 L. J. 
 
 Ch. 83; 33L. T. 619; 24 W. E. 125 . . . .510 
 
 Govettr. Eiclimond(]834) 7 Sim. 1 193 
 
 Grmne v. Wrouglitou (1855) 11 Ex. 146; 24 L. J. Ex. 265; 
 
 25 L. T. O. S. 183 ; 3 W. E. 509 . . . . 328, 684 
 Graham v. Jolinson (1869) 8 Eq. 36; 38 L. J. Ch. 374; 21 
 
 L. T. 77; 17 W. E. 810 213,215 
 
 Grain's Case (1875) 1 Ch. D. 315 ; 45 L. J. Ch. 321 ; 33 
 
 L. T. 766 194, 195 
 
 Gravely v. Barnard (1874) 18 Eq. 518; 43 L. J. Ch. 659; 
 
 30 L. T. 863 174, 315, 317 
 
 Gray r. Fowler (1873) L. E. 8 Ex. 249 ; 42 L. J. Ex. 161 ; 
 
 29L. T. 297; 21 W. E. 916 537,538 
 
 Gray v. Gibson (1806) L. E. 2 C. P. 120; 36 L. J. C. P. 99; 
 
 15 W. E. 70 . 205 
 
 Gray i^. Lewis (1869) 8 Eq. 526; 20L. T. 282; 17W.E.431. 148,664 
 Gray v. Mathias (1800)5 Ves. jun. 286 .. . 262, 263 
 Gray r. Pearson (1870) L. E. 5 C. P. 508; 23 L. T. 416 . 205 
 Gray v. Warner (1873) 16 Eq. 577; 42 L. J. Ch. 556; 28 
 
 L. T. 835 ; 21 W. E. 808 . . . . . . . 245 
 
 Great Northern Ey. Co. v. Eastern Counties Ey. Co. (1851) 
 
 9 Ha. 306 ; 7 Eailw. Ca. 643 ; 21 L. J. Ch. 837 . . . 656 
 Great Northern Ey. Co. v. Witham (1873) L. E. 9 C. 
 
 16 ; 43 L. J. C. P. 13 ; 29 L. T. 471 ; 22 W. E. 48 
 Green v. Baverstock (1863) 14 C. B. N. S. 204; 32 
 
 C. P. 181 ; 8 L. T. 360 ; 10 Jur. N. S. 47 . 
 Green v. Duckett (1883) 11 Q. B. D. 275; 52 L. J. 
 
 435 ; 48 L. T. 677; 31 W. E. 607 ; 47 J. P. 487 
 Green v. Sevin (1879) 13 Ch. D. 589 ; 41 L. T. 724 
 Green v. Wynn (1869) 4 Ch. 204; 38 L. J. Ch. 220; 20 
 
 L. T. 131 ; 17 W. E. 385 242 
 
 Greenwood v, Gi'eenwood (1877) 5 Ch. Div. 954; 47 L. J. 
 
 Ch. 298 ; 37 L. T. 712 ; 26 W. E. 5 . . . 452, 453 
 Gregory v. Williams (1817) 3 Mer. 582 ; 1 C. & K. 65 . . 202 
 Grell r. Levy (1864) 16 C. B. N. S. 73 ; 9 L. T. 721 ; 10 
 
 Jur. N. S. 210; 12 W. E. 378 295, 345 
 
 Gresley v. Mousley (1861) 3 D. F. J. 433; 4 De G. & J. 78; 
 
 6L.T.86; 8 Jur.N.S. 320; 10W.E.222 . 541,559,583,594,596 
 Griffin r. Devcuille (1781) 3 P. Wms. 131, n. . . .570 
 
 Griffith V. Young (1810) 12 East, 513 609 
 
 Griffiths v. Jones (1873) 15 Eq. 279; 42 L. J. Ch. 468 ; 21 
 
 W. E. 470 432 
 
 Griffiths V. EoLins (1818) 3 Mad. 191 570 
 
 Grigbv V. Cox (1750) 1 Ves. son. 517 559 
 
 Grimoldby v. Wells (1875) L. E. 10 C. P. 391 ; 44 L, J. C. P. 
 
 203 ; 32 L. T. 490 ; 23 W. E. 524 488 
 
 Gi-iswold r.Waddington (1818) 15 Johns. (Sup. Ct.N. Y.) 57 . 279 
 Grosvonor /•. Shcrratt (18(50) 28 Bcav. 059; 8 W. E. 682 . 567 
 Guardliouse v. P.laekburn (1866) L. E. 1 P. & D. 109; 35 
 
 L.J. P. 116; 14L.T.69; 12 Jur. N. S- 278; 14W.E.463 . 458,691 
 Guest V. Smytho (1870) 5 Ch. 551; 39 L. J. Ch. 536; 22 
 
 L. T. 563; a8 W. E. 742 244 
 
 c. 
 
 P. 
 
 
 
 24, 
 
 175 
 
 L. 
 
 J. 
 
 518 
 
 Q. 
 
 B. 
 
 555 
 464
 
 TABLE OF CASES. xHx 
 
 Guinness v. Land Corporation of Ireland (1882) 22 Ch. Div. 
 
 349; 52 L. J. Ch. 177; 47 L. T. 517 ; 31 W. E. 341 , . 671 
 Gunu's Case (1867) 3 Cli. 40; 37 L. J. Ch. 40; 17 L. T. 365; 
 
 16 W. E. 97; 12 Sol. J. 172 32 
 
 Guruey I'. Behrend (1854) 3 E. & B. 622; 23 L. J. Q. B. 
 
 265 ; 18 Jur. 856 227 
 
 Gurney v. Womersloy (1854) 4 E. & B. 133; 24 L. J. Q. B. 
 
 46 ; 1 Jur. N. S. 328 437 
 
 Guthing V. Lynn (1831) 2 B. & Ad. 232 43 
 
 Gwynne v. Hoaton (1778) 1 Bro. C. C. 1 . . . . 573 
 
 H. V. W. (1857) 3 K & J. 382 268 
 
 Hack V. London Provident Building Society (1883) 23 Ch. Div. 
 
 103; 52 L. J. Ch. 542; 48 L. T. 250; 31 W. E. 393 . 292 
 
 Hadley y. Clarke (1799) 8 T. E. 259 279 
 
 Haigh V. Brooks (1839) 10 A. & E. 309 ; 3 P. »fe D. 452 . 173 
 Haigh V. North Brierley Union (1858) E. B. & E. 873; 28 
 
 L. J. Q. B. 62 ; 5 Jur. N. S. 511 152 
 
 Haines v. Busk (1814) 5 Taunt. 521 330 
 
 Halford v. Cameron's Coalbrook, &c. Co. (1851) 16 Q. B. 
 
 442; 20 L. J. Q. B. 160; 15 Jur. 335 219 
 
 Halhead v. Young (1856) 6 E. & B. 312; 25 L. J. Q. B. 
 
 290; 27L. T. O. S. 100; 4 W. E. 530 . . . .457 
 Halifax Union Guardians v. Wheelwright (1875) L. E. 10 
 
 Ex. 183 ; 44 L. J. Ex. 121 ; 32 L. T. 802 ; 23 W. E. 704 . 414 
 
 Hall, Re (1856) 2 Jur. N. S. 1076 628 
 
 Hall V. Bainbridgo (1840) 1 M. & Gr. 42; 1 Scott, N. E. 151 205 
 Hall V. Cazenove (1804) 4 East, 477 ; 1 Smith, 272 . . 355 
 HaU V. Conder (1857) 2 C. B. N. S. 22 ; 26 L. J. C. P. 131, 
 
 258, 288 ; 3 Jur. N. S. 963 438 
 
 Hall V. Dyson (1852) 17 Q. B. 785 ; 21 L. J. Q. B. 224 ; 16 
 
 Jur. 270 240 
 
 Hall V. Hall (1868) L. E. 1 P. & D. 481 ; 37 L. J. P. 40 ; 
 
 17L. T. 152; 16 W. E. 544 560 
 
 Hall ;;. Hall (1873) 14 Eq. 365; 8 Ch. 430; 42 L. J. Ch. 
 
 444; 28 L. T. 383; 21 W. E. 373 564 
 
 Hall V. Mayor of Swansea (1844) 5 Q. B. 526; D. & M. 475; 
 
 13L. J. Q. B. 107; 8 Jru-. 213 155 
 
 Hall ;;. Old Takrgoch Lead Mining Co. (1876) 3 Ch. D. 749; 
 
 45 L. J. Ch. 775; 34 L. T. 901 546 
 
 HaU V. Palmer (1844) 3 Ha. 532 263 
 
 Hall V. Palmer (1844) 13 L. J. Ch. 352 ; 8 Jur. 459 . . 48 
 
 Hall V. Warren (1804) 9 Ves. 605 87 
 
 Hall V. Wright (1858) E. B. & E. 746; 29 L. J. Q. B. 43; 
 
 6 Jur. N. S. 193 ; 8 W. E. 180 . . 308, 374, 376, 378 
 
 HaUowsi;.rernie(1868)3Ch.467; 18L.T.340; 16W.E.873 . 524 
 
 Halsey v. Grant (1806) 13 Ves. 73 497 
 
 Hamiltonr.Grainger(1859)5H.&N.40; 5 Jur.N. S. 1108 . 256 
 Hamilton v. Hector (1871) 6 Ch. 701; 13 Eq. 511 ; 40 L. J. 
 
 Ch. 692 ; 19 W. E. 990 305 
 
 Hamilton v. Watson (1845) 12 CI. & Pin. 109 . 493, 494 
 
 P. d
 
 1 TABLE OF CASES. 
 
 FAOE 
 
 Hamlin v. Great Northern Ey. Co. (1856) 1 n. & N. 408 ; 
 
 26 L. J. Ex. 20 ; 2 Jur. N. S. 1122 15 
 
 Hammersley t\ Baron tie Biel (1845) 3 Beav. 469 ; 12 CI. & 
 
 Fin. 45 310, 692, 693, 694, 695 
 
 Hampden v. Walsh (1876) 1 Q. B. 1). 189; 45 L. J. Q. B. 
 
 238 ; 33 L. T. 852 ; 24 W. E. 607 335 
 
 Hanauer i'.Doane(1870)12 Wallace(Sup.Ct.U.S.)342 . 281, 325 
 Hancocki'.Peaty(18G7)L.E. IP. &D. 335; 36 L.J. Mat. 57 87 
 Hanington v. Du Chastel (1781) 2 Swanst. 159, n. ; 1 Bro. 
 
 C. C. 124; 2 Dick. 581 ; 3 Woodd. 459, n 286 
 
 Hanley v. Pearson (1879) 13 Ch. D. 545 ; 41 L. T. 673 . 476 
 Harben v. PhilUps (1882-3) 23 Ch. Div. 14; 48 L. T. 334; 
 
 31 W. E. 173 664 
 
 Harding, In the Goods of (1872) L. E. 2 P. & D. 394; 26 L. T. 
 
 668 ; 20 W. E. 615 80 
 
 Hardman v. Booth (1863) 1 H. & C. 803; 32 L. J. Ex. 105; 
 
 7 L. T. 738 ; 9 Jnr. N. S. 81 . . . . 423, 545 
 Hardy v. Metropolitan Land and Finance Co. (1872) 7 Ch. 
 
 427'; 41 L. J. Ch. 257 ; 26 L. T. 407 ; 20 W. E. 425 . 400 
 Hare's Case (1809) 4 Ch. 503; 17W.E.628; 13 Sol. J. 768 . 433,539 
 Harman's Case (1875) 1 Ch. Div. 326; 45 L. J. Ch. 332; 33 
 
 L. T. 760 194 
 
 Harman v. Eeeve (1856) 18 C. B. 587 ; 25 L. J. C. P. 257 . 605 
 Harms v. Parsons (1862) 32 Beav. 328 ; 32 L. J. Ch. 247 ; 
 
 7 L. T. 815 ; 9 Jur. N. S. 145 ; 11 W. E. 250 . . . 317 
 Harrinu-ton v. Long (1833-4) 2 My. & K. 590 . 295, 299 
 
 Harris \'. G. W. Ey. Co. (1876) 1 Q. B. D. 515; 45 L. J. 
 
 Q. B. 729 ; 34 L. T. 647 ; 25 W. E. 63 . . . .47 
 Harris v. Nickerson (1873) L. E. 8 Q. B. 286 ; 42 L. J. Q. B. 
 
 171; 28 L. T. 410; 21 W. E. 635 . . . 14,17,19 
 Harris v. Pepperell (1867) 5 Eq. 1 ; 17 L. T. 191 ; 16 W. E. 
 
 68; 12 Sol. J. 175 430,477 
 
 Harris v. Quine (1869) L. E. 4 Q. B. 653; 38 L. J. Q. B. 
 
 331 ; 20 L. T. 947 603 
 
 Harris v. Tremenheere (1808) 15 Yes. 34 . . . .570 
 Harris v. Wall (1847) 1 Ex. 122; 16 L. J. Ex. 270 . . 58 
 
 Harrison v. Good (1871) 11 Eq. 338; 40 L. J. Ch. 294; 24 
 
 L. T. 263; 19 W. E. 346 226,229 
 
 Harrison v. Guest (1855) 6 D. M. G. 424; 8 H. L. C. 481 . 574, 576 
 Harrison v. Seymour (1866) L. E. 1 C. P. 518; 35 L. J. 
 
 C. P. 264 ; 12 Jur. N. S. 924 242 
 
 Hart I'. Eastern Union Ey. Co. (1852) 7 Ex. 246; 8 th. 116; 
 
 21 L. J. Ex. 97 ; 22 ib. 20 657 
 
 Hart V. Hart (1881) 18 Ch. D. 670; 50 L. J. Ch. 697 ; 45 
 
 L. T. 13; 30 W. E. 8 44 
 
 Hart V. Miles (1858) 4 C. B. N. S. 371 ; 27 L. J. C. P. 218 . 173 
 Hart V. Mills (1846) 15 M. & W. 85 ; 15 L. J. Ex. 200 . 434 
 Hart V. Swaine(1877)7 Ch. D. 42; 47 L. J. Ch. 5; 37 L. T. 
 
 376 ; 26 W. E. 30 506 
 
 Hartur v. Uarter (1873) L. E. 3 P. & D. 11 ; 42 L. J. P. 1 ; 
 
 27 L. T. 858; 21 W. E. 341 691 
 
 Hartley v. Cummings (1847) 5 C. B. 247 ; 2 C. & K. 433; 
 
 17 L. J. C. P. 84 ; 19 Jur. 57 319
 
 TABLE OF CASES. ll 
 
 Hartley v. Ponsonby (1857) 7 E. & B. 872 ; 26 L. J. Q. B. 
 
 322 ; 8 Jur. N. S. 74G 177 
 
 Hartley v. Rice (180S) 10 East, 22 307 
 
 Harvey v. Farnie (1882) 8 App. Ca. 43; 52 L. J. P. 42; 48 
 
 L. T. 279 ; 31 W. E. 438 408 
 
 Harvey v. Mount (1845) 8 Beav, 439 570 
 
 Harvy v. Gibbons (1674) 2 Lev. 161 357 
 
 Haslam v. Sherwood (1834) 10 Bing. 540 ; 4 M. & Scott, 434 . 176 
 Hastelow i-. Jackson (1828) 8 B. & C. 221 ; 2 M. & E. 209 . 334, 336 
 Hatch V. Hatch (1804) 9 Ves. 292 ... . 559, 568 
 Hawksworth v. Hawksworth (1871) 6 Ch. 539; 40 L. J. Ch. 
 
 534; 25 L. T. 115; 19 W. E. 735 304 
 
 Hay's Case (1875) 10 Ch. 593; 44 L. J. Ch. 721 ; 33L. T. 466 245 
 
 Haycraft v. Creasy (1801) 2 East, 92 523 
 
 Haygarth v. Wearing (1871) 12 Eq. 320; 40 L. J. Ch. 577; 
 
 24 L. T. 825 ; 20 W. E. 11 . . . . 503, 506, 590 
 Haywood v. Brunswick Building Society (1881) 8 Q. B. Div. 
 
 403; 51L.J.Q.B.73; 45L.T.699; 30W.E.299; 46J.P.356. 226 
 Haywood v. Cope (1858) 25 Beav. 140; 27 L. J. Ch. 468; 
 
 4 Jur. N. S. 227 578 
 
 Heartley v. Nicholson (1874) 19 Eq. 233 ; 44 L. J. Ch. 277 ; 
 
 32 L."T. 822 ; 23 W. E. 374 185 
 
 Heath v. Crealock (1874) 10 Ch. 22; 44 L. J. Ch. 157 ; 31 
 
 L. T. 650 ; 23 W. E. 95 398 
 
 Heathcote V. Paignon (1787) 2Bro. C. C. 166 . . . 578 
 
 Hebb's Case (1867) 4 Eq. 9 ; 16 L. T. 308 ; 15 W. E. 754 . 641 
 Heilbutt V. Hickson (1872) L. E. 7 C. P. 438; 41 L. J. 
 
 C. P. 228 ; 27 L. T. 336 ; 20 W. E. 1035 . . . 449, 58S 
 " Helen," The (1875) L. E. 1 Ad. & Ecc. 1 ; 34 L. J. Adm. 
 
 2; 13 L. T. 305; 10 Jur. N. S. 1025; 14 W. E. 136 . 281 
 Helps V. Clayton (1864) 17 C. B. N. S. 553 ; 34 L. J. C. P. 1; 
 
 11 L. T. 466; 10 Jur. N. S. 1148; 13 W. E. 161 . . . 71 
 Hemingway v. Hamilton (1838) 4 M. & "W. 115 . . . 512 
 Henderson v. Australian Eoyal Mail, &c. Co. (1855) 5 
 
 E. & B. 409 ; 24 L. J. Q. B. 322 ; 1 Jur. N. S. 830 . 150, 151 
 Henderson v. Stevenson (1875) L. E. 2 Sc. & D. 470 ; 32 
 
 L. T. 709 46 
 
 Henkel v. Pape (1870) L. E. 6 Ex. 7 ; 40 L. J. Ex. 15 . 434 
 Henkle v. Eoyal Exch. Assce. Co. (1749) 1 Ves. sen. 318 . 473 
 Hereford and S. Wales Waggon and Engineering Co. Ee (1876) 
 
 2 Ch. Div. 621 ; 45 L. J. Ch. 461; 35 L. T. 40: 24 W. E. 953 . 529 
 Hesse v. Stevenson (1803) 3 B. & P. 565 . , . . 454 
 
 Hey wood v. Mallalieu (1883) 25 Ch. D. 357 ; 53 L. J. Ch. 
 
 492 ; 49 L. T. 658 ; 32 W. E. 538 .... 504, 507 
 Heyworth r. Hutchinson (1867) L. E. 2 Q. B. 447 ; 36 L. J. 
 
 a B. 270 437, 488 
 
 Hickman v. Haynes (1875) L. E. 10 C. P. 598; 44 L. J. C. P. 
 
 358; 32 L. T. 873; 23 W. E. 871 639 
 
 Higgins r. Pitt (1849) 4 Ex. 312 ; 18 L. J. Ex. 488 . . 239 
 Higgins V. Samels (1862) 2 J. & H. 460; 7 L. T. 240 516, 527 
 Higgins V. Scott (18:31) 2 B. & Ad. 413 ... . 600 
 
 Higgins V. Senior (1841) 8 M. & W. 834 98 
 
 Higginson v. Clowes (1808) 15 Ves. 516 . . . 432, 468 
 
 cl2
 
 lii TABLE OF CASES. 
 
 PAGE 
 
 Higginson v. Simpson (1877) 2 C. P. D. 76; 46 L. J. C. P. 
 
 192; 36 L. T. 17; 25 W. E. 303 334 
 
 Higgs V. Northern Assam Tea Co. (1869) L. E. 4 Ex. 387 ; 
 
 38L. J. Ex. 233; 21 L. T. 336; 17 W. E. 1125 . .215 
 
 HiU V. Boyle (1867) 4 Eq. 260 299 
 
 HiU V. Gray (1816) 1 Stark. 434 514 
 
 HiU V. Lane (1870) 11 Eq. 215; 40 L. J. Ch. 41 ; 23 L. T. 
 
 547 ; 19 W. E. 194 516 
 
 Hill V. Tupper (1863) 2 H. & C. 121 ; 32 L. J. Ex. 217 ; 
 
 8 L. T. 792 ; 9 Jur. N. S. 725 227, 229 
 
 HiU V. Walker (1858) 4 K. & J. 166 . . . . . 600 
 Hill V. WUson (1873) 8 Ch. 888 ; 42 L. J. Ch. 817 ; 29 L. T. 
 
 238; 21 W. E. 757 419,457 
 
 HilUard v. Eiffe (1874) L. E. 7 H. L. 39 . , 505, 551 
 
 HUls V. Eowland (1853) 4 D. M. G. 430 . . . . 474 
 
 HiUs V. SneU (1870) 104 Mass. 173 420 
 
 HUls V. Sughrue (1846) 15 M. & W. 253 . . 351, 360, 373 
 HUton V. Eckersley (1855-6) 6 E. & B. 47, 66; 24 L. J. Q. B. 
 
 353 ; 25 ih. 199 ; 2 Jur. N. S. 587 310 
 
 Hindley v. Marquis of Westmeath (1827) 6 B. & C. 200 ; 9 
 
 D. & E. 351 268 
 
 Hindson v. WeatheriU (1854) 5 D. M. G. 301; 23 L. T. 0. S. 
 
 149 ; 18 Jur. 499 ; 2 W. E. 507 560 
 
 Hip^veU V. Knight (1835) 1 Y. & C. Ex. 401 .. . 464 
 Hu'schfield v. London, Brighton and South Coast Ey. Co. 
 
 (1876) 2 Q. B. D. 1 ; 46 L. J. Q. B. 1 ; 35 L. T. 473 . . 522 
 Hii-st V. Tolson (1850) 2 Mac. & G. 134; 2 H. & T. 359; 19 
 
 L. J. Ch. 441 ; 14 Jur. 559 379 
 
 Hislop V. Leckie (1881) 6 App. Ca. 560 230 
 
 Hitchcock V. Coker (1837) 6 Ad. & E. 438 ; 1 N. & P. 796 ; 
 
 2 H. & W. 464 315 
 
 Hitchcock V. Giddings (1817) 4 Pri. (Ex. in Eq.) 135 . . 443 
 Hoare v. Bremridge (1872) 8 Ch. 22; 42 L. J. Ch. 1 ; 27 
 
 L. T. 593 ; 21 W. E. 43 552 
 
 Hobart v. Butler (1859) 9 Ir. C. L. 157 . . 626, 627, 628 
 Hochster v. De la Tour (1853) 2 E. & B. 678; 22 L. J. Q. B. 
 
 455 ; 17 Jur. 972 24 
 
 Hodgson V. Earl of Powis (1851) 1 D. M. G. 6 . . . 656 
 Hodgson V. WiUiamson (1880) 15 Ch. D. 87 ; 42 L. T. 676 ; 
 
 28 W. E. 944 ; 24 Sol. J. 817 652 
 
 Hoggins V. Gordon (1842) 3 Q. B. 466 ; 2 G. & D. 656 ; 11 
 
 L. J. Q. B. 286 ; 6 Jur. 895 626, 627 
 
 Hoghton 0. Hoghton (1852) 15 Beav. 278 413, 561, 563, 569 
 Hole V. Bradbury (1879) 12 Ch. D. 886 . . . . 426 
 
 HoUand v. HaU (1817) 1 B. & Aid. 53 331 
 
 HoUinsi;.Fowler(1874-5)L.E.7H.L.757; 33L. T. 73 . 395,423,545 
 Holman v. Johnson (1775) 1 Cowp. 341 . . 281, 282, 332 
 Holman v. Loynes (1854) 4 D. M. G. 270; 23 L. J. Ch. 529; 
 
 22 L. T. 0. S. 296 ; 2 W. E. 205 . . 559, 565, 568, 594 
 Holme V. BrunskiU (1877) 3 Q. B. Div. 495 . . . . 241 
 Holme V. Guppy (1838) 3 M. & W. 387 ; 1 Jur. 825 . . 381 
 Holmosv.BIogg(18l7)8Tauut. 35; 1 Mooro, 466; 2 /i.552 60,63
 
 TABLE OF CASES. liii 
 
 Holmos V. Jaquos (1866) L. E. 1 Q. B. 376 ; 35 L. J. Q. B. 
 
 130 ; 14 L. T. 252 ; 12 Jur. N. S. 486 . . . . 206 
 Homersliam v. Wolverhampton Waterworks Co. (1851) 6 
 
 Ex. 137 ; G Eailw. Ca. 790; 20 L. J. Ex. 193 . . . 150 
 Honeyman v. Marryat (1857) 6 H. L. C. 112 ; 26 L. J. Ch. 
 
 619 ; 4 Jur. N. S. 17 39 
 
 Hoole V. G. W. Ey. Co. (1867) 3 Ch. 262; 17 L. T. 453; 
 
 18 ih. 453 ; 16 W. E. 260 ; 12 Sol. J. 764 . . . . 663 
 Hope V. Hope (1857) 8 D. M. G. 731 ; 26 L. J. Ch. 417 ; 3 
 
 Jur. N. S. 454 266, 290, 344, 607 
 
 Hopkins v. Logan (1839) 5 M. & W. 241 ; 7 D. P. C. 360 . 601 
 Hopkins v. Prescott (1847) 4 C. B. 578 ; 16 L. J. C. P. 259; 
 
 11 Jur. 562 286 
 
 Hopkinson v. Foster (1874) 19 Eq. 74 ; 23 W. E. 301 . . 651 
 Home's Case (1400) M. 2 H. 4, 6, pi. 25 . . . .225 
 Horrocks v. Eigby (1878) 9 Ch. D. 180; 47 L. J. Ch. 800; 
 
 38L. T. 782; 26 W. E. 714 500 
 
 Horsfall v. Fauntleroy (1830) 10 B. & C. 755 . . . 102 
 Horsfall v. Thomas (1862) 1 H. & C. 90; 31 L. J. Ex. 322; 
 
 8 Jur. N. S. 721 527 
 
 Hort's Case (1875) 1 Ch. Div. 307 ; 45 L. J. Ch. 321 ; 33 
 
 L. T. 766 194, 195 
 
 Hotson V. Browne (1860) 9 C. B. N. S. 442; 30 L. J. C. P. 106 457 
 Hough V. Manzanos (1879) 4 Ex. D. 104; 48 L. J. Ex. 398; 
 
 27 W. E. 536 99 
 
 Houldsworth v. City of Glasgow Bank (1880) 5 App. Ca. 
 
 317; 42 L. T. 194; 28 W. E. 677 534 
 
 Houldsworth v. Evans (1868) L. E. 3 H. L. 263; 19 L. T. 211 668 
 Household Fire Insurance Co. v. Grant (1879) 4 Ex. Div. 216 ; 
 
 48 L. J. Ex. 577 ; 41 L. T. 298 ; 27 W. E. 858 . 35, 638 
 
 Howard v. Brownhill (1853) 2 C. L. E. 125; 23 L. J. Q. B. 23 633 
 
 Howard ;'. Harris (1683) 1 Vern. 190 466 
 
 Howden v. Haigh (1840) 11 A. & E. 1033; 3 P. & D. 661 . 239 
 Howden (Lord) v. Simpson (1839) 10 A. & E. 793; 9 CI. & 
 
 Fin. 61 329 
 
 Howell V. Coupland (1876) L. E. 9 Q. B. 462; 1 Q. B. Div. 
 
 258 ; 46 L. J. Q. B. 147 ; 33 L. T. 832 ; 24 W. E. 470 . 370 
 
 Howell V. George (1815) 1 Mad. 1 577, 579 
 
 Howley v. Knight (1849) 14 Q. B. 240 ; 19 L. J. Q. B. 3 ; 
 
 14 Jur. 665 113 
 
 Huber v. Steiner (1835) 2 Bing. N. C. 202; 2 Scott, 301 ; 1 
 
 Hodges, 206 ; 2 D. P. C. 781 . . . . 603, 604 
 Hughes V. Done (1841) 4 P. & D. 708; 1 Q. B. 294; 10 
 
 L. J. Q. B. 65 ; 5 Jur. 837 630 
 
 Hughes V. Humphreys (1854) 3 E. & B. 954; 23 L. J. Q. B. 
 
 356 ; 1 Jur. N. S. 42 686 
 
 Hughes V. Jones (1861) 3 D. F. J. 307 ; 31 L. J. Ch. 83 ; 
 
 5 L. T. 408 ; 8 Jur. N. S. 399 ; 10 W. E. 139 . . 497, 502 
 Huguenin v. Baseley (1807) 2 Wh. & T. L. C. 547; 14 Ves. 
 
 273 561, 570, 571, 594 
 
 Hulme V. Coles (1827) 2 Sim. 12 243 
 
 Hulmev.Tenant(1778)lWh.&T. L.C.521; 1 Bro. C. C. 16 . 646 
 Hulse, iJx parte (1873) 8 Ch. 1022 ; 43 L. J. Ch, 261 . . 465
 
 liv TABLE OF CASES. 
 
 PAGE 
 
 Humble V. Hunter (1848) 12 Q. B. 310; 17 L. J. Q. B. 350; 
 
 12 Jul-. 121 100, 422 
 
 Hume V. Pocock (1866) 1 Ch. 379 ; 35 L. J. Ch. 731 ; 14 
 
 L. T. 386 ; 12 Jur. N. S. 445; 14 W. R. 681 . . . 526 
 Humfrey v. Dale (1857) 7 E. & B. 266; E. B. & E. 1004; 
 
 26 L. J. Q. B. 137 99 
 
 Humphreys v. Green (1882) 10 Q. B. Div. 148; 52 L. J. 
 
 a B. 140 ; 48 L. T. 60 ; 47 J. P. 244 611 
 
 Hunt, In the goods of (1875) L. R. 3 P. & D. 250; 44 L. J. 
 
 P. 43; 33 L. T. 321; 23 W. R. 553 415 
 
 Hunt V. Hunt (1861-2) 4 D. F. J. 221 ; 31 L. J. Ch. 161 ; 
 
 5 L. T. 778 ; 8 Jur. N. S. 85 ; 10 W. R. 215 . 261, 264, 265, 266 
 Hunt V. Rousmaniere's Admrs. (1828) 1 Peters, 1 . 407, 474 
 Hunt V. Silk (1804) 5 East, 449 ; 2 Smith, 15 . . . . 543 
 Hunt V. Wimbledon LocalBoard-(1878)4 0. P. Div. 48 ; 48 
 
 L. J. C. P. 207 ; 39 L. T. 35 ; 27 W. R. 123 . 131, 152, 155, 156 
 Hunter v. Atkins (1832) 3 My. & E. 113 . 560, 561, 562, 594 
 Hunter v. Daniel (1845) 4 Ha. 420. . . . 295, 299 
 Hunter v. Walters (1871) 7 Ch. 75; 41 L. J. Ch. 175; 25 
 
 L. T. 765 ; 20 W. R. 418 . . . . 414,416,417,423 
 Hussey v. Horne-Payne (1879) 4 App. Ca. 311; 48 L. J. 
 
 Ch. 846; 41 L. T. 1 ; 27 W. R. 585 39 
 
 Hutcheson v. Eaton (1884) 13 Q. B. Div. 861 . . . 99 
 Hutchinson v. Tatham (1873) L. R. 8 C. P. 482; 42 L. J. 
 
 C. P. 260; 29 L. T. 103; 22 W. R. 18 . . 95, 99, 110 
 
 Hutley V. Hutley (1873) L. R. 8 Q. B. 112; 42 L. J. Q. B. 
 
 52; 28 L. T. 63; 21 W. R. 479 ... . 295, 303 
 Hutton i\ Bulloch (1873) L. R. 8 Q. B. 331; 9 ih. bT2; 30 
 
 L. T. 648 ; 22 W. R. 956 98 
 
 Hybart v. Parker (1858) 4 C. B. N. S. 209 ; 27 L. J. C. P. 
 
 120 ; 4 Jur. N. S. 265 205 
 
 Hj'de V. Hyde and Woodmansee( 1866) L. R. 1 P. & D. 130; 
 
 35L.J.AIat.57; 14L.T.188; 12 Jur.N.S.414; 14W.R.517 341 
 
 Ind's Case (1872) 7 Ch. 485; 41 L. J. Ch. 564; 26 L. T. 
 
 487 ; 20 W. R. 430 433 
 
 Inman v. Inman (1873) 15 Eq. 260 ; 21 W. R. 433 . . . 78 
 Inns of Court Hotel Co. iZp (1868) 6 Eq. 82 ; 37 L. J. Ch. 692 . 661 
 lonides v. Pacific Insurance Co. (1871) L. R. 6 Q. B. 674; 
 
 7v7;. 517; 41L. J.Q.B. 33, 190; 26L.T.738; 21W. R.22. 617 
 lonides v. Ponder (1874) L. R. 9 Q. B. 531 ; 43 L. J. (i. B. 
 
 227 ; 30 L. T. 547 ; 22 W. R. 884 . . . 489, 490, 528 
 Ipswich Tailors' Case (1615) 11 Co. Rep. 53 a . . . . 313 
 Irnham, Lord, v. Child (1781) 1 Bro. C. C. 92 . . . 407 
 Irvine v. Watson (1880) 5 Q. B. Div. 414 ; 49 L. J. Q. B. 
 
 531; 42 L. T. 810 102 
 
 Isberp: ?'. Bowden (1853) 8 Ex. 852; 1 C. L. R. 722; 22 
 
 L. J. Ex. 322 101 
 
 Ivons V. ]}utlor (1857) 7 E. & B. 159 ; 26 L. J. Q. B. 145; 
 
 3 Jur. N. S. 334 650
 
 TABLE OF CASES. Iv 
 
 TAGE 
 
 Jackson, Ex parte (1880) 14 Ch. Div. 725; 43 L. T. 2T2; 
 
 29 W. E. 253 255 
 
 Jackson r. Ducliairo (1790) 3 T. E. 551 238 
 
 Jackson (•.Turquan(l(1869)L. E. 4 II. L. 305; 39 L. J. Ch. 11 39 
 Jackson v. Union Marino Insurance Co. (1874) L. E. 10 
 
 C. P. 125; 44 L. J. C. P. 27; 31 L. T. 789; 23 W. E. 169 . 374 
 Jacobs V. Credit Lyonnais (1884) 12 Q. B. Div. 589; 53 
 
 L. J. Q. B. 156 339, 346, 362 
 
 Jacobs V. Seward (1872) L. E. 5 n. L. 464; 41 L. J. C. P. 
 
 221 ; 27 L. T. 185 400 
 
 James, Kr, parte {1814) 9 Ch. 609; 43 L. J. Bk. 107; 30 
 
 L. T. 773; 22 W. E. 937 410 
 
 James/'.Isaacs(1852)12C.B.791;22L.J.C.P.73; 17Jur.69. 424 
 Jarratt v. Aldani (1870) 9 Eq. 463; 39 L. J. Ch. 349; 21 
 
 L. T. 192; 18 W. E. 511 596 
 
 Jaj^ and Amphlett, Be (1862) 1 H. & C. 637 ; 32 L. J. Ex. 
 
 176; 7 L. T. 362; 11 W. E. 75 650 
 
 Jee V. Thurlow (1824) 2 B. & C. 547 ; 4 D. & E. 11 . . 267 
 
 Jefferys v. Gurr (1S31) 2 B. & Ad. 833 155 
 
 Jenkins v. Jones (1882) 9 Q. B. Div. 128 ; 51 L. J. Q. B. 
 
 438 ; 46 L. T. 795 ; 30 W. E. 668 301 
 
 Jenkins v. Morris (1880) 14 Ch. Div. 674 ; 42 L. T. 817 . . 94 
 Jennings v. Bronghton (1853-4) 5 D. M. G. 126; 17 Beav. 
 
 234 ; 22 L. J. Ch. 584 ; 17 Jur. 905 524 
 
 Jennings v. Johnson (1873) L. E. 8 0. P. 425 . . 297, 685 
 Jennings v. Eundall (1799) 8 T. E. 335 . . . .74 
 Jervis v. Berridge (1873) 8 Ch. 351 ; 42 L. J. Ch. 518; 28 
 
 L. T. 481; 21 W. E. 244 458 
 
 Jervis v. Tomkinson (1856) 1 H. & N. 195 ; 26 L. J. Ex. 41 . 373 
 Jewitt ('. Eckhardt (1878) 8 Ch. D. 404; 26 W. E. 415 . 164 
 Johnasson v. Bonhote (1876) 2 Ch. Div. 298; 45 L. J. Ch. 
 
 651; 34 L. T. 745; 24 W. E. 619 606 
 
 Johnson v. Gallagher (1861) 3 D. F. J. 494; 30 L. J. Ch. 
 
 298 ; 4 L. T. 72 ; 7 Jur. N. S. 273 ; 9 W. E. 506 . 648, 650, 652 
 
 Johnson r. Lansley (1852) 12 C. B. 468 334 
 
 Johnson v. Pie (1665) Sid. 258 ; 1 Lev. 169 ; 1 Keb. 913 . 74 
 Johnson v. Eaylton (1881) 7 Q. B. Div. 438; 50 L. J. Q. B. 
 
 753 ; 45 L. T. 374 ; 30 W. E. 350 422 
 
 Joliffe V. Baker (1883) 11 Q. B. Div. 255; 52 L. J. Q. B. 
 
 609 ; 48 L. T. 966 ; 32 W. E. 59 ; 47 J. P. 678 . 480, 503 
 Jones, Ex parte (1879) 12 Ch. Div. 484; 48 L. J. Bk. 109; 
 
 40 L. T. 790 ; 28 W. E. 287 ; 44 J. P. 55 . . . 649 
 Jones, Ex parte (1881) 18 Ch. Div. 109; 50 L. J. Ch. 673; 
 
 44 L. T. 587 ; 29 W. E. 747 ; 25 Sol. J. 653 . . . 77 
 Jones, lie (1869) 9 Eq. 63; 39 L. J. Oh. 83; 21 L. T. 482; 
 
 18 W. E. 159 621 
 
 Jones V. Broadhurst (1850) 9 C. B. 173 . . . 218, 424 
 Jones V. Clifford (1876) 3 Ch. D. 779; 45 L. J. Ch. 809; 35 
 
 L. T. 937 ; 24 W. E. 979 444 
 
 Jones V. Gibbons (1804) 9 Ves. 407 225 
 
 Jones V. Giles (1854) 10 Ex. 119; 23 L. J. Ex. 292; 22 L. T. 
 
 O. S. 103; 23 ih. 255 ; 2 W. E. 623 . . , . 686 
 
 Jones V. Harris (1804) 9 Yes. 486 . . . . 648, 652
 
 Ivi TABLE OF CASES. 
 
 PAGE 
 
 Jones V. Holm (1867) L. E. 2 Ex. 335; 16 L. T. 794 . . 374 
 
 Jones V. Jones (1837-8) 8 Sim. 633 210 
 
 Jones V. Jones (1840) 6 M. & W. 84 610 
 
 Jones V. Jones (1876) 1 Q. B. D. 279 309 
 
 Jones V. Just (1868) L. E. 3 Q. B. 197 ; 9 B. & S. 141 ; 37 
 
 L. J. Q. B. 89; 18 L. T. 208; 16 W. E. 643 . . . 487 
 Jones V. Lane (1838-9) 3 Y. & C. Ex. in Eq. 281 . . . 218 
 Jones V, Lees (1856) 1 H. & N. 189; 26 L. J. Ex. 9; 2 Jnr. 
 
 N. S. 645 316 
 
 Jones V. North (1875) 19 Eq. 426; 44 L. J. Ch. 388; 32 L. T. 
 
 149; 23 W. E. 468 311,348 
 
 Jones V. Eicketts (1862) 31 Beav. 130; 31 L. J. Ch. 753; 
 
 10 W. E. 576 583 
 
 Jones V. Eimmer (1880) 14 Ch. Div. 588; 49 L. J. Ch. 775; 
 
 43L. T. Ill; 29 W. E. 165 503 
 
 Jones I'. Eobinson (1847) 1 Ex. 454; 17 L. J. Ex. 36; 11 
 
 Jur. 933 204 
 
 Jones V. St. John's College, Oxford (1870) L. E. 6 Q. B. 115; 
 
 40 L. J. Q. B. 80; 23 L. T. 803; 19 W. E. 276 . . . 361 
 Jones V. Victoria Graving Dock Co. (1877) 2 Q. B. Div. 314; 
 
 46 L. J. Q. B. 219 ; 36 L. T. 144 ; 25 W. E. 348 . . 163 
 Jones V. Waite (1842) 1 Bing. N. C. 656; 5 ih. 341; 9 
 
 CI. & F. 101; 4 M. & Gr. 1104; 5 Scott, N. E. 951; 6 
 
 Jur. 653 173, 179, 267 
 
 Jordenv. Money (1854) 5H.L.C. 185; 23L.J.Ch.865 . 612, 693, 
 
 696, 697 
 Josephs V. Pebrer (1825) 3 B. & C. 639; 1 C. & P. 341, 507; 
 
 5 D. & E. 542 222 
 
 Joyce V. Swann (1864) 17 C. B. N. S. 84 . . . . 40 
 
 Kay V. Duchess de Pienne (1811) 3 Camp. 123 . . . 82 
 
 Zayv. Smith (1856) 21 Beav. 522 570 
 
 Kearon v. Pearson (1861) 7 H. & N. 386; 31 L. J. Ex. 1 ; 
 
 10 W. E. 12 360 
 
 Kearsley v. Cole (1846) 16 M. & W. 128; 16 L. J. Ex. 115 . 242 
 Eeates v. Earl Cadogan (1851) 10 C. B. 591 ; 20 L. J. C. P. 
 
 76; 15 Jur. 428 507, 514 
 
 Eeates v. Lyon (1869) 4 Ch. 218; 38 L. J. Ch. 357; 20 L. T. 
 
 255; 17 W. E. 338 226,229 
 
 Keochv.Sandford(1726)lWh.&T.L.C.46; Sel.Ca.inCh.61 . 245 
 Keenan v. Handley (1864) 2 D. J. S. 283 ; 10 L. T. 800 ; 10 
 
 Jur. N. S. 906; "12 W. E. 1021 182 
 
 Koir V. Leoman (1844) 6 Q. B. 308; 9 ih. 371; 13 L. J. Q. B. 
 
 259; 15?6. 360; 8 Jur. 824 ; 10 /i. 742 . . . . 288 
 Kekewich v. Manning (1851) 1 D. M. G. 176 . . .184 
 Kelly V. Solari (1841) 9 M. & W. 54; 11 L. J. Ex. 10 . . 405 
 Keluer v. Baxter (1866) L. E. 2 C. P. 174; 36 L. J. C. P. 
 
 94; 15 L. T. 313; 12 Jur. N. S. 1016; 15 W. E. 278 . 107, 108 
 Kompson v. Ashboo (1874) 10 Ch. 15; 44 L. J. Ch. 195 ; 31 
 
 L. T. 525 ; 23 W. E. 38 595, 596 
 
 Kennedy v. Broun (1863) 13 C. B. N. S. 677; 32 L. J. C. P. 
 
 137; 9 Jur. N. S. 119; 7 L. T. 626; 11 W. E. 284 . 626, 629
 
 TABLE OF CASES. Ivii 
 
 PACK 
 
 Kennedy v. Green (1834) 3 My. & K. 099 . . . . 416 
 Kennedy v. Panama, &c. Mail Co. (1867) L. E. 2 Q. B. 580; 
 
 8 B. & S. 571; 36 L. J. Q. B. 200; 17 L. T. 62; 15 
 
 W. E. 1039 427, 436, 437, 487 
 
 Kent i;. Freehold Land Co. (1868) 3 Ch. 493; 16 W.E. 990 . 433,539 
 Keppell V. Bailey (1834) 2 My. & K. 517 . . . . 229 
 Kettle V. Eliot (1(514) Eolle, Abr. 1, 731 k; Cro. Jac. 320 ; 
 
 Brownlow, 120 ; 2 Bulst. 09 64 
 
 Kibble, 7?x parte (1875) 10 Ch. 373; 44 L. J. Bk. 63; 32 
 
 L. T. 138 ; 23 W. E. 433 61 
 
 Kidderminster, Mayor of, v. Hardwick (1873) L. E. 9 Ex. 
 
 13; 43 L. J. Ex. 9; 29 L. T. 612; 22 W. E. 160 . 147, 152, 154 
 Kien v. Stukeley (1722) 1 Bro. P. C. 191 ; Gilb. 155 . . 579 
 King V. Hamlet (1835) 2 My. & K. 456 ; 3 CI. & F. 218 . 586 
 Kingsford v. Merry (1856) 1 H. & N. 503 ; 11 Ex. 577; 25 
 
 L. J. Ex. 166 ; 26 ih. S3 ; 3 Jur. N. S. 88 . 420, 423, 546 
 Kintrea, Ex jmrie {1869) 5 Cb. 95; 39 L. J. Ch. 193; 21 
 
 L. T. 688 520, 528 
 
 Kirk V. Bromley Union (1846) 2 Phill. 640. . . . 154 
 
 Kirwan v. Cullen (1854) 4 Ir. Ch. 322 563 
 
 Kitchin v. Hawkins (1866) L. E. 2 C. P. 22 ; 15 L. T. 185 ; 
 
 12 Jur. N. S. 928; 15 W. E. 72 408 
 
 Knight V. Bowj'er (1858) 2 De G. & J. 421; 27 L. J. 
 
 Ch. 521 ; 4 Jur. N. S. 569 . . . . 295, 298, 299 
 Knight v.Mar]oribanks(1849) 2 Mac. & G. 10; 2 H. &T. 308 . 575 
 Knox^^Gye(1871-2)L.E. 5H. L. 656; 42 Jj. J.Ch.234 . 198,598 
 
 Knye v. Moore (,1822) 1 Sim. & St. 61 262 
 
 Kronheim v. Johnson (1877) 7 Ch. D. 60; 47 L. J. Ch. 132; 
 
 37 L. T. 751 ; 26 W. E. 142 163 
 
 Lacev, i^'^iwrfe (1802) 6 Ves. 625 244 
 
 Lachlan i'. Eeynolds (1853) Kay, 52; 23 L. J. Ch. 8; 22 
 
 L. T. O. S. 211 ; 2 W. E. 49 503 
 
 Laidlaw ^^ Organ (1817) 2 Wheat. 178 514 
 
 Laing v. Eeed (1869) 5 Ch. 4 ; 18 W. E. 76 . . . 661 
 
 Lakeman v. Mountstephen (1874) L. E. 7 Q. B. 196; 7 H. L. 
 
 17; 43 L. J. Q. B. 188; 30 L. T. 437; 22 W.E. 617 . .158 
 Lamare v. Dixon (1873) L. E. 6 H. L. 414 ; 43 L. J. Ch. 
 
 203 ; 22 W. E. 49 697, 698 
 
 Lamb's Case (1599) 5 Co. Eep. 23 b . . . . 357, 387 
 Lamb v. Brewster (1879) 4 Q. B. Div. 220, 607; 48 L. J. 
 
 Q. B. 277, 421 ; 40 L. T. 457, 537; 27 W. E. 395, 478 . 684 
 
 Lampet's Case (1613) 10 Co. Eep. 48 a 206 
 
 Lampleigh V. Brathwait(1616) 1 Sm. L. C. 151 ; Hob. 105 . 12, 170 
 Lamprellv.BmericayUnion(1849)3Ex. 283; 18L. J. Ex. 282 . 152 
 Lane v. Horlock (1855) 5 H. L. C. 580 ; 25 L. J. Ch. 253 ; 
 
 2 Jur. N. S. 289 584 
 
 Lassence v. Tierney (1849) 1 Mac. & G. 551 .. . 613 
 Laughter's Case (1595) 5 Co. Eep. 21 b . . 382, 387, 388 
 Layer v. Dennett (1883) 109 U. S. (2 Davis) 90 . . . 477 
 Lavery v. Turley (1860) 6 H. & N. 239 ; 30 L. J. Ex. 49 . 610
 
 Iviii TABLE OF CASES. 
 
 PAGE 
 
 Lawes v. Purser (1856) 6 E. & B. 930; 2G L. J. Q. B. 2o; 
 
 3 Jm\ N. S. 182 173 
 
 Lawrence v. Smith (1822) Jac. 471 2G9 
 
 Laythoarp v. Bryant (1836) 2 Bing. N. C. 735 ; 3 Scott, 238; 
 
 2 Hodges, 25 605 
 
 Lazarus v. Cowie (1842) 3 Q. B. 459 ; 2 G. & D. 487 . . 221 
 Lea V. Wliitaker (1872) L. E. 8 0. P. 70; 27 L. T. 676; 
 
 21 W. E. 230 467 
 
 Leach (Doe d.) v. Micklem (1805) 6 East, 486 ; 2 Smith, 499 . 452 
 Leach v. Mullett (1827) 3 Car. & P. 115 . . . . 433 
 Leask v. Scott (1877) 2 Q. B. Div. 376; 46 L. J. Q. B. 576; 
 
 36 L. T. 784 ; 25 W. E. 654 523 
 
 Leather Cloth Co. v. Hieronimus (1875)L. E. 10 Q. B. 140; 
 
 44 L. J. Q. B. 54 ; 32 L. T. 307; 23 W. E. 593 . 163, 639 
 Leather Cloth Co. v. Lorsont (1869) 9 Eq. 345; 39 L. J. 
 
 Ch. 86; 21 L. T. 661; 18 W. E. 572 . 312, 315, 316, 317 
 
 Lebeaii v. General Steam Navigation Co. (1872) L. E. 8 
 
 C. P. 88 ; 42 L. J. C. P. 1 ; 27 L. T. 447 ; 21 W. E. 146 . 492 
 Lebel v. Tucker (1867) L. E. 3 Q. B. 77; 37 L. J. Q. B. 
 
 46 ; 17 L. T. 244 218 
 
 Lee, ^xpar^e (1806) 13 Ves. 64 278 
 
 Lee V. Bude, &c. Ey. Co. (1871) L. E. 6 C. P. 576 ; 40 L. J. 
 
 C. P. 285 ; 24 L. T. 827 ; 19 W. E. 954 . . . . 252 
 Lee V. Gaskell (1876) 1 Q. B. D. 700; 45 L. J. Q. B. 540; 
 
 34 L. T. 759 ; 24 ^Y. E. 824 160 
 
 Lee V. Jones (1863) 14 C. B. N. S. 386; 17 ib. 482 ; 34 L. J. 
 
 C. P. 131 ; 11 Jur. N. S. 81 ; 13 W. E. 318 . 493, 494, 514 
 Leeds v. Cheetham (1827) 1 Sim. 146 . . . . 363, 364 
 
 Legge V. Croker (1811) 1 Ball & B. 506 505 
 
 Leggott V. G. N. E. Co.. (1876) 1 Q. B. D. 599; 45 L. J. 
 
 Q. B. 557 ; 35 L. T. 334 ; 24 W. E. 784 . . . . 189 
 Leicester ^^ Eose (1803) 4 East, 372; 1 Smith, 41 . . . 239 
 Leifchild's Case (1865) 1 Eq. 231; 13 L. T. 267; 11 Jur. 
 
 N. S. 941 ; 14 W. E. 22 184 
 
 Leman v. Fletcher (1873) L. E. 8 Q. B. 319; 42 L. J. Q. B. 
 
 214; 28 L. T. 499; 21 W. E. 738 623 
 
 Leman v. Houseley(1874)L. E. 10 Q. B. 66; 44 L. J. Q. B. 
 
 22 ; 31 L. T. 833 ; 23 W. E. 235 . . . 256, 624, 625 
 Lempriere v. Lange (1879) 12 Ch. D. 675; 41 L. T. 378; 
 
 27 W. E. 879 76 
 
 Lennard r. Eobinson (1855) 5 E. & B. 125 ; 24 L. J. Q. B. 
 
 275 ; 1 Jur. N. S. 853 99 
 
 Lonnon /'. Napp(;r (1802) 2 Sch. & Lef. 682 . . 463, 465 
 Lenmx r. Brown (1852) 12 C. B. 801 ; 22 L. J. C. P. 1 ; 16 
 
 Jur. 1021 605, 606, 607, 625 
 
 Leslie v. Fitzpatrick (1877) 3 Q. B. D. 229; 47 L. J. M. C. 
 
 22; 37 L. T. 446 55, 66 
 
 Lotchford, Jie (1876) 2 Ch. D. 719; 45 L. J. Ch. 530; 
 
 35 L. T. 466 73 
 
 Levy V. Grcon (1857) 8 E. & B. 575 ; 1 E. & E. 969 ; 27 L. J. 
 
 a B. Ill ; 28 ib. 319; 5 Jur. N. S. 1245; 7 W. E. 486 . 434 
 Lcwi8i;.Bra9s(1877)3Q.B.Div.667; 37L.T.738; 26 W.E.152. 42
 
 TAKM': OF CASES. llx 
 
 PAGE 
 
 Lewis v. Bright (1855) 4 E. & B. 917 ; 24 L. J. Q. B. 191 ; 
 
 I Jur. N. S. 7o7 258 
 
 Lewis r. Browumf2:( 1880) 130 Mass. 173 . . . .37 
 Lewis /-. Jones (1825) 4 15. & C. 506 ; 6 D. & E. 567 . . 521 
 Lewis V. Nicholson (1852) 18 Q. B. 503; 21 L. J. Q. B. 311 ; 
 
 16 Jur. 1041 106 
 
 Leyland v. Illingworth (1860) 2 D. F. J. 248; 2 L. T. 587; 
 
 8 W. E. 695 431, 497 
 
 Leyland v. Stewart (1876) 4 Ch. D. 419 ; 46 L. J. Ch. 103 ; 
 
 25 W. E. 225 164 
 
 Lichfield v. Baker (1850) 13 Beav. 447 410 
 
 Life Association of Scotland v. Siddal (1861) 3 D. F. J. 58 . 548 
 Lightfoot V. Heron (1839) 3 Y. & C. Ex. 586 . . . . 91 
 Limpus r. London General Omnibus Co. (1862) 1 H. & C. 
 
 526 ; 32 L. J. Ex. 34 ; 7 L. T. 641 ; 9 Jur. N. S. 333 ; 
 
 II W. E. 149 396 
 
 Lincoln College Case (1595) 3 Co. Eep. 58 a . . . . 53 
 Lindenau v. Desborough (1828) 8 B. & C. 586 . . . 490 
 
 Lindo V. Lindo (1839) 1 Beav. 496 461 
 
 Lindsay Petroleum Co. v. Hm-d (1874) L. E. 5 P. C. 221 ; 
 
 22 W. E. 492 523, 549 
 
 Lindus v. Bradwell (1848) 5 C. B. 583 ; 17 L. J. C. P. 123 ; 
 
 12 Jur. 230 99 
 
 Lishman v. Northern Maritime Insurance Co. (1875) L. E. 
 
 8 C. P. 216; 10 lb. 179; 44 L. J. C. P. 185; 32 L. T. 170 617 
 Lister v. Hodgson (1867) 4 Eq. 30; 15 W. E. 547 . . . 477 
 Lister ?'. Pickford (1865) 34 Beav. 576 .... 401 
 
 Litt V. Cowley (1816) 7 Taunt. 169; 2 Marsh. 457; Holt, 338 401 
 Livingston v. Ealli (1855) 5 E. & B. 132 ; 24 L. J. Q. B. 
 
 269 ; 25 L. T. 80 ; 1 Jur. N. S. 594 ; 3 W. E. 488 . . 291 
 Llanelly Ey. and Dock Co. v. L. & N. W. Ey. Co. (1873) 8 
 
 Ch. 942; 21 W. E. 889 184, 292 
 
 Lloyd V. Attwood (1858-9) 3 De G. & J. 614; 29 L. J. Ch. 
 
 97; 5 Jur. N. S. 1322 548 
 
 Lloyd V. Banks (1868) 3 Ch. 488 ; 16 W. E. 988 . . 210 
 
 Lloyd r. Clark (1843) 6 Beav. 309 570 
 
 Llovd y. Crispe (1813) 5 Taunt. 249 357 
 
 Lloyd V. Guibert (1865) L. E. 1 Q. B. 115 ; 6 B. & S. 100 ; 
 
 35 L. J. Q. B. 74 ; 13 L. T. 602 339 
 
 Load V. Green (1846) 15 M. & W. 216; 15 L. J. Ex. 113; 
 
 10 Jur. 163 512, 541, 544, 548 
 
 Loader v. Clarke (1850) 2 Mac. & G. 382 .... 248 
 Lofft r. Dennis (1859) 1 E. & E. 474 ; 28 L. J. Q. B. 168; 
 
 32 L. T. 273 ; 5 Jur. N. S. 727 ; 7 W. E. 199 . 363, 364, 365 
 Loffus r. Maw (1862) 3 Giff. 592 ; 8 Jur. N. S. 607 . 694, 695 
 London and N. W. Ey. Co. v. M'Michael (1850) 5 Ex. 114; 
 
 20 L. J. Ex. 97 . . . . . . 59, 64, 65 
 
 London and N. "\V. Ey. Co. v. Price (1883) 11 Q. B. D. 485; 
 
 52 L. J. Q. B. 754 662 
 
 London and Provincial Insurance Co. v. Seymour (1873) 17 
 
 Eq. 85 ; 43 L. J. Ch. 120 ; 29 L. T. 641 ;' 22 AV. E. 201 . 552 
 London and S. W. Ey. Co. v. Blackmore (1870) L. E. 4 11. L. 
 
 610; 39 L. J. Ch. 713; 23 L. T. 504 ; 19 W. E. 305 . . 461
 
 Ix TABLE OF CASES. 
 
 PAGE 
 London and S. W. Ey. Co. v. Gomm (1882) 20 Ch. Div. 562; 
 
 51 L. J. Ch. 530; 46 L. T. 449; 30 W. E. 620 . . 226 
 
 London Assurance Co. v. Mansel (1879) 11 Ch. D. 363; 48 
 
 L. J. Ch. 331 ; 27 AV. E. 444 491 
 
 London Chartered Bank of Australia v. Lempriere (1873) 
 
 L. E. 4 P. C. 572; 42 L. J. P. C. 49; 29 L. T. 186; 21 
 
 W. E. 513; 9 Moo. P. C. N. S. 426 . . . . 551, 648 
 LondonDockCo. v. Sinnott (1857) 8 E. & B. 347 ; 27 L. J. Q. B. 
 
 129 ; 30 L. T. O. S. 164 ; 4 Jur. N. S. 70 ; 6 W. E. 165 . 150 
 London Joint Stock Bank v. Mayorof London(1875) 1 C. P. D. 
 
 1 ; 5 C. P. Div. 494 ; 6 App. Ca. 393 ; 45 L. J. C. P. 213 ; 
 
 33 L. T. 781 114 
 
 London Land Co. v. Harris (1884) 13 Q. B. D. 540 . . 552 
 
 London, Mayor of, v. Cox (1866) L. E. 2 H. L. 239; 36 
 
 L. J. Ex. 225 ; 16 W. E. 44 396 
 
 Longmatev. Ledger (1860) 2 Giff. 157; 4 D.F.J. 402; 2L.T. 
 
 246; 6 Jur. N. S. 481 ; 8 W. E. 386 . . . 574, 575 
 Loveridge I'. Cooper (1823-7) 3 Euss. 30 . . . .209 
 Lovesy y. Smith (1880) 15 Ch. *D. 655; 49 L. J. Ch. 809; 
 
 43L. T. 240; 28 W. E. 979 475 
 
 Lowe V. London and N. W. Ey. Co. (1852) 18 Q. B. 632 ; 7 
 
 Eailw. Ca. 524; 21 L. J. Q. B. 361 ; 17 Jur. 375 . 150, 155 
 Lowe V. Peers (1768) Wilmot, 371; 4 Burr. 2225 . . . 307 
 
 Lewis V. Eumney (1867) 4 Eq. 451 600 
 
 Lowther v. Lowther (1806) 13 Ves. 95 244 
 
 Lucas V. Wilkinson (1856) 1 H. & N. 420; 26 L. J. Ex. 13 . 424 
 
 Luders v. Anstey (1799) 4 Ves. 501 694 
 
 Ludlow, Mayor of, v. Charlton (1840) 6 M. & W. 815; 8 C. 
 
 & P. 242 ; 4 Jur. 657 147, 152 
 
 Luker v. Dennis (1877) 7 Ch. D. 227; 47 L. J. Ch. 174 ; 37 
 
 L. T. 827 ; 26 W. E. 167 229 
 
 Lumley v. Gye (1853) 2 E. & B. 216; 22 L. J. Q. B. 463; 
 
 22 L. T. O. S. 220; 17 Jur. 827 192 
 
 Lumsden's Case (1868) 4 Ch. 31 ; 19 L. T. 437 ; 17 W. E. 65 . 57 
 Lush's trusts (1869) 4 Ch. 591 ; 17 W. E. 974 . . . 615 
 Lyall V. Edwards (1861) 6 H. & N. 337; 30 L. J. Ex. 193 . 461 
 Lyddon v. Moss (1859) 4 De G. & J. 104; 33 L. T. 0. S. 
 
 170; 5 Jur. N. S. 637; 7 W. E. 433 . . . .566 
 Lynch, Ex parte (1876) 2 Ch. D. 227; 45 L. J. Bkcy. 48 ; 
 
 34 L. T. 34 ; 24 W. E. 375 77 
 
 Lyon V. Haynes (1843) 5 M. & Gr. 504; 6 Scott, N. E. 371 . 223 
 Lyon V. Home (1868) 6 Eq. Qbb; 37 L. J. Ch. 674; 18 
 
 L. T. 451 ; 16 W. E. 824 571,703 
 
 Lyons V. Blenkin (1820-1) Jac. 245 304 
 
 Macbeathi;. Haldimand(1786) 1 T. E. 172 . . . . 100 
 McBlair ik Gil.bos (1.S54) 17 Howard, 232 . . . 281, 326 
 Macbrydo v. W(3eks (185()) 22 Boav. 533 ; 28 L. T. 0. S. 135 ; 
 
 2 Jur. N. S. 918 464 
 
 M'Cullan V. Mortimer (1842) 9 M. & W. 636 . . .333 
 McCartliy v. Dccaix (1831) 2 Euss. & My. 614 . . .408
 
 TARLE OF CASES. Ixi 
 
 PAGE 
 
 M'Clean v. Kennard (1874) 9 Ch. 336; 43 L. J. Ch. 323 ; 
 
 30L. T. 186; 22 W. E. 382 403 
 
 McConnell v. Hector (1802) 3B. & P. 113 . . . . 280 
 Maccord v. Osborno (1876) 1 C. P. D. 568 ; 45 L. J. C. P. 
 
 727 ; 35 L. T. 164 ; 25 W. E. 9 602 
 
 M'Cullocli V. Gregory (1855) 1 K. & J. 286 ; 24 L. J. Ch. 246 . 505 
 Macdouald r. Law Union Insurance Co. (1874) L. E. 9 Q. B. 
 
 328 ; 43 L. J. Q. B. 131 ; 30 L. T. 545 ; 22 W. E. 530 . 491 
 MacDougall v. Gardiner (1875) 10 Ch. 606; 1 Ch. D. 13; 
 
 33 L. T. 521 ; 23 W. E. 846 664 
 
 Macgregor v. Dover and Deal Ey. Co. (1852) 18 Q. B. 618; 
 
 7 Eailw. Ca. 227 ; 22 L. J. Q. B. 69; 17 Jur. 21 . 126, 657 
 McHenry v. Davies (1870) 10 Eq. 88; 22 L. T. 643; 18 
 
 W. E. 855; 14 Sol. J. 878 651, 652 
 
 Mclvcr V. Eichardson (1813) 1 M. & S. 557 ... 26 
 
 Mackay, Ex parte (1873) 8 Ch. 643; 42 L. J. Bk. 68; 28 
 
 L. T. 828 ; 21 W. E. 664 255 
 
 Mackay v. Commercial Bank of New Brunswick(1874) L. E. 
 
 5P.C. 394;43L.J.P.C.31; 30L.T.180; 22W.E.473. 115,531 
 Mackay v. Dick (1881) 6 Ajjp. Ca. 251; 29 W. E. 541 . 381 
 
 Mackenzie v. Cotilson (1869) 8 Eq. 368 474 
 
 McKeuzie o. Hesketh(1877) 7 Ch. D. 675; 47 L. J. Ch. 231; 
 
 38 L. T. 171 ; 26 W. E. 189 431,435 
 
 McKewan v. Sanderson (1873) 15 Eq. 229; 42 L. J. Ch. 296; 
 
 28 L. T. 159 238, 240 
 
 McKune v. Joynson(1858)5C.B.N.S.218; 28 L. J. C. P. 133 22 
 
 Maclean's trusts (1874) 19 Eq. 274 288 
 
 M'Lean v. Clydesdale Banking Co. (1883) 9 App. Ca. 95 ; 
 
 50 L. T. 457 219 
 
 McManus v. Bark (1870) L. E. 5 Ex. 65; 39 L. J. Ex. 65 ; 
 
 21 L. T. 676 180 
 
 McNiell's Case (1870) 10 Eq. 503; 39 L. J. Ch. 822; 23 
 
 L. T. 297; 18 W. E. 1102, 1126 539 
 
 McPherson v. Watt (1877) 3 App. Ca. 254 . . . . 566 
 Maddison ;^ Alderson (1883) 8 App. Ca. 467; 51 L. J. Q. B. 
 
 737 ; 49 L. T. 303 ; 31 W. E. 820 . 482,484,605,606, 611,615,695 
 Maddon v. White (1787) 2 T. E. 159 ; 2 Esp. 530 . . o6, 66 
 Magdalen Hospital, Governors of, v. Kuotts (1879) 4 App. 
 
 Ca. 324 ; 48 L. J. Ch. 579; 40 L. T. 466; 27 W. E. 682 . 53 
 Magee v. Lavell (1874) L. E. 9 C. P. 107 ; 43 L. J. C. P. 
 
 131; 30 L. T. 169; 22 W. E. 334 467 
 
 Mahony v. East Holyford Mining Co. (1875) L. E. 7 H. L. 
 
 869 ; 9 Ir. E. C. L. 306 ; 33 L. T. 383 . . . . 665 
 Mainprice v. Westley (1865) 6 B. & S. 420 ; 34 L. J. Q. B. 
 
 229 ; 13 L. T. 560 ; 11 Jur. N. S. 975 ; 14 W. E. 9 . . 16 
 Maitland v. Backhouse (1847) 16 Sim. 58 . . . . 594 
 
 Maitland v. Irving (1846) 15 Sim. 437 559 
 
 Malins v. Freeman (1836-7) 2 Keen, 25 ... . 430 
 Malins v. Freeman (1838) 4 Bing. N. C. 395 . . . . 53 
 Mallalieu v. Hodgson (1851) 16 Q. B. 689; 20 L. J. Q. B. 
 
 339 ; 15 Jur. 817 177, 239 
 
 Mallet V. Bateman (1865) L. E. 1 C. P. 163 ; 1 H. & E. 109; 
 
 35L. J. C.P.40; 13L.T.410; 12 Jur.N.S.122; 14W.E.225. 159
 
 Ixii TABLE OF CASES. 
 
 PAGE 
 Manby v. Scott (1660) 2 Sin. L. C. 445; 1 Lev. 4 . . . 648 
 Mangles v. Dixon (1852) 3 H. L. C. 702 . . . . 212 
 
 Mann V. Stephens (1846) 15 Sim. 377 229 
 
 Manson v. Thacker (1878) 7 Ch. D. 620; 47 L. J. Ch. 312 ; 
 
 38 L. T. 209 ; 26 W. R. 604 512 
 
 Marriott i;. Hampton (1796) 2 Sm. L. C. 421 ; 7 T. E. 269 . 555 
 Marsh and Earl Granville (1883) 24 Ch. Div. 11 ; 53 L. J. 
 
 Ch. 81 ; 48 L. T. 947 ; 31 W. R. 845 . . . . 504 
 
 Marsh ('. Rainst'ord (1588) 2 Leon. Ill 170 
 
 Marsh v. Whitmore (1874) 21 Wallace (Sup. Ct. U. S.) 178 . 245 
 Marshall v. Baltimore and Ohio Railroad Co. (1853) 16 
 
 Howard, 314 Ill, 284, 285 
 
 Marshall v. Berridge (1881) 19 Ch. Div. 233; 51 L. J. Ch. 
 
 329 ; 45 L. T. 599 ; 30 W. R. 93 ; 46 J. P. 279 . . 403 
 Marshall v. CoUett (1835) 1 Y. & C. Ex. 232 . . . . 400 
 Marshall v. Green (1875) 1 C. P. D. 35; 45 L. J. C. P. 153; 
 
 33 L. T. 404 ; 24 W. R. 175 160 
 
 Marshall v. Marshall (1879) 5 P. D. 19; 48 L. J. P. 49; 39 
 
 L. T. 640 ; 27 W. R. 379 266 
 
 MarshaU v. Rutton (1800) 8 T. R. 545 . . . . 79 
 
 Martin's Claim (1872) 14 Eq. 148; 41 L. J. Ch. 679; 26 
 
 L. T. 684 619 
 
 Martin v. Gale (1876) 4 Ch. D. 428; 46 L. J. Oh. 84; 36 
 
 L. T. 357 ; 25 W. R. 406 73 
 
 Martin v. Pycroft (1852) 2 D. M. G. 785 ; 22 L. J. Ch. 94 ; 
 
 16 Jur. 1125 457, 469 
 
 Mason v. Harris (1879) 11 Ch. Div. 97; 48 L. J. Oh. 589; 
 
 40 L. T. 644 ; 27 W. R. 699 664 
 
 Maspons y Hermano v. Mildred (1883) 9 Q. B. Div. 530; 
 
 8 App. Ca. 874; 53 L. J. Q. B. 33; 32 W. R. 125 . . 98 
 
 Massey V. Davies(1794) 2 Ves. 317 246 
 
 Master v. Hansard (1876) 4 Ch. Div. 718; 46 L. J. Oh. 505; 
 
 36 L. T. 535 ; 25 W. R. 570 229 
 
 Mather v. Lord Maidstone (1856) 18 C. B. 273; 25 L. J. 0. P. 
 
 310; 27 L. T. 261 181 
 
 Matheson v. Ross (1849) 2 H. L. 0. 286; 13 Jur. 307 . . 619 
 Matthews v. Baxter (1873) L. R. 8 Ex. 132; 42 L. J. Ex. 
 
 73 ; 28 L. T. 169 ; 21 W. R. .389 . . .93, 418, 553 
 Matthews v. Wallwyn (1798) 4 Vos. 118 . . . . 225 
 
 Maunsell V. HedgesWhito ( 1854) 4 H. L.C.I 039 . 692,693,694,695, 
 
 697 
 Maxfioldv. Burton (1873) 17 Eq. 15; 43 L. J. Oh. 46; 29 
 
 L. T. 571 ; 22 W. R. 148 211 
 
 Maw V. Topham (1854) 19 Boav. 576 501 
 
 Mawson v. Fletcher (1870) 6 Ch. 91 ; 40 L. J. Ch. 131 ; 23 
 
 L. T. 515; 19 W. R. 141 497 
 
 May V. O'Noill (1875) W. N. 1875, p. 179 ; 44 L. J. Ch. 660 . 317 
 Mayd v. Field (1876) 3 Ch. D. 587 ; 45 L. J. Ch. 699; 34 
 
 L. T. 614 ; 24 W. R. 660 648 
 
 Mayhow V. Orickett(1818) 2 Swanst. 185 . . . .243 
 Maynard v. Eaton (1874) 9 Oh. 414; 43 L. J. Oh. 641 ; 30 
 
 L. T. 241 ; 22 W. R. 457 540
 
 TABLE OF CASES. Ixili 
 
 PAGE 
 
 Mayor, the (of Nashville) v. Eay (1873) 19 Wallace (Sup. 
 
 Ct. U. S.) 468 131 
 
 Mead v. Young (1790) 4 T. E. 28 399 
 
 Mearingr.Hollings(184j)14M. &W. 711; 15 L. J. Ex. 168 . 336 
 Meguiro v. Covwine (1879) 11 Otto (101 U. S.) 108 . . 285 
 Melbourne Banking Corporation v. Brougham (1878-9) 4 
 
 App. Ca. 156; 48 L. J. P. C. 12 ; 40 L. T. 1 . . . 131 
 Melhado v. Porto Alegre Ey. Co. (1874) L. E. 9 C. P. 503 ; 
 
 43 L. J. C. P. 253 ; 31 L. T. 57 ; 23 ^Y. E. 57 . . . 204 
 Memphis,Cityof,,".Brown(1873)20Wallace(8up.Ct.U.S.)289. 329 
 Menier i\ Hooper's Telegraph Works (1874) 9 Ch. 350; 43 
 
 L. J. Ch. 330 ; 30 L. T. 209 ; 22 W. E. 257, 396 . . 664 
 Merchant Banking Co. of London v. PhcDcnix Bessemer Steel 
 
 Co. (1877) 5 Ch. D. 205; 46 L. J. Ch. 418; 36 L. T. 395; 
 
 25 W. E. 457 215, 220 
 
 Metcalfe's Trusts (1864) 2 D. J. S. 122 ; 33 L. J. Ch. 308 ; 
 
 10 Jur. N. S. 224 594 
 
 Meyerhoff v. Frohlich (1878) 3 C. P. D. 333 ; 4 C. P. Div. 
 
 63 ; 48 L. J. C. P. 43 ; 39 L. T. 620; 27 W. E. 258 . . 601 
 Middleton v. Brown (1878) 47 L. J. Ch. 411 ; 38 L. T. 334 . 587 
 Midland G. W. Ey. Co. of Ireland v. Johnson (1858) 6 H. 
 
 L. C. 798 ; 4 Jur. N. S. 643 . . . . 150, 402 
 
 Midland Ey. Co. v. Pye (1861) 10 C. B. N. S. 179; 30 L. J. 
 
 C. P. 314 ; 4 L. T. 510 ; 9 W. E. 658 . . . . 84 
 Mill V. Hawker (1874) L. E. 9 Ex. 309; 10 tb. 92; 44 L. J. 
 
 Ex. 49 ; 33 L. T. 177 ; 24 W. E. 348 . . . 117, 118 
 
 Millar v. Craig (1843) 6 Beav. 433 462 
 
 MiUer's Case (1876) 3 Ch. Div. 391 194 
 
 Miller v. Cook (1870) 10 Eq. 641 ; 40 L. J. Ch. 11 ; 22 L. T. 
 
 740 ; 18 W. E. 1061 584 
 
 MiUs V. Fowkes (1839) 5 Bing. N. C. 455 ; 7 Scott, 444 ; 2 
 
 Arn. 62 ; 3 Jur. 406 600 
 
 Mills V. Scott (1873) L. E. 8 Q. B. 496; 42 L. J. Q. B. 234; 
 
 29 L. T. 96 ; 21 W. E. 915 200 
 
 Millwardr.Littlewood(1850)5Ex.775; 20L.J.Ex.2 . 106,237,249 
 Miltenberger v. Cooke (1873) 18 Wallace (Sup. Ct. U. S.)421 . 32(5 
 Mitchelr.Eeynolds(1711)lSm.L.C.417; IP.Wms. 181 .310,311 
 Mitchell's Claim (1871) 6 Ch. 822; 19 W. E. 1130 . . 601 
 Mitchell V. Homfray (1881) 8 Q. B. Div. 587; 50 L. J. Q. B. 
 
 460 ; 45 L. T. 694 ; 29 W. E. 558 596 
 
 Mitchell ''. Lancashire and Yorkshire Ey. Co. (1875) L. E. 
 
 lOQ. B. 256; 44L.J.Q.B.107; 33L.T. 61; 23W. E. 853 . 400 
 Mitchell V. Lapage (1816) Holt, N. P. 253 . . . . 421 
 Mody V. Gregson (1868) L. E. 4 Ex. 49 ; 38 L. J. Ex. 12; 
 
 19L. T. 458; 17 W. E. 176 487 
 
 Mollett V. Eobinson (1870) L. E. 5 C. P. 646; 39 L. J. 
 
 C. P. 290; 18 W. E. 1160 244 
 
 Molony v. Kernan (1842) 2 Dr. & W. 31 . . 567, 570, 594 
 Molton V. Camroux (1848) 2 Ex. 487; 4 ib. 17; 18 L. J. 
 
 Ex. 68, 356 92, 93, 418 
 
 Mondel V. Steel (1841) 8 M. & W. 858; 1 D. N. S. 1 ; 
 
 10 L. J. Ex. 426 488 
 
 Monkman v. Shepherdson (1840) 11 A. & E. 411 . . . 179
 
 Ixiv TABLE OF CASES. 
 
 Monopolies, Case of (1602) 11 Co. Eep. 84 b . . .313 
 Moore and De la Torre's Case (1874) 18 Eq. 061 ; 43 L. J. Ch. 
 
 751; 29 L. T. 668; 31 ib. 83 ; 22 W. R. 873 . 509, 536 
 Moore v. Metrop. Ey. Co. (1872) L. E. 8 Q. B. 36 ; 42 L. J. 
 
 a B. 23; 27L. T. 579; 21W. E. 145 . . . .115 
 Moore v. Moore (1874) 18 Eq. 474; 43 L. J. Ch. 617; 30 
 
 L. T. 752; 22 W. E. 729 185 
 
 Moorhouse v. Colvin (1851) 15 Beav. 341 . . . .45 
 Mordue v. Palmer (1870) 6 Ch. 22; 40 L. J. Ch. 8; 23 
 
 L. T. 752 ; 19 W. E. 86 404 
 
 Morgan v. Griffith (1871) L. E. 6 Ex. 70 ; 40 L. J. Ex. 46; 
 
 23 L. T. 783; 19 W. E. 957 . . . . 160, 364, 698 
 Morgan v. Malleson (1870) 10 Eq. 475 ; 39 L. J. Ch. 680 ; 
 
 23L. T. 336; 18 W. E. 1125 185 
 
 Morgan v. Minett (1877) 6 Ch. D. 638; 36 L. T. 948; 
 
 25 W. E. 744 566 
 
 Morgan r. Eavey (1861) 6 H. & N. 265; 30 L. J. Ex. 131 . 10 
 Morgan v. Eowlands (1872) L. E. 7 Q. B. 493; 41 L. J. 
 
 Q. B. 187 ; 26 L. T. 855 ; 20 W. E. 726 . . . . 602 
 Morison v. Thompson (1874) L. E. 9 Q. B. 480; 43 L. J. 
 
 Q. B. 215 ; 30 L. T. 869 ; 22 W. E. 859 . . . . 246 
 Morley v. Eennoldson (1843) 2 Ha. 570 ... . 309 
 Morphett v. Jones (1818) 1 Swanst. 172 . . . 457, 612 
 MorreU v. Cowan (1877) 6 Ch. D. 166; 7 Ch. Div. 151 ; 47 
 
 L. J. Ch. 73 ; 37 L. T. 586 ; 26 W. E. 90. . . . 649 
 MorreU v. MorreU (1882) 7 P. D. 68; 51 L. J. P. 49; 46 
 
 L. T. 485; 30 W. E. 491 ; 46 J. P. 328 . . . . 691 
 Morris V. Hunt (1819) 1 Chit. 544 .... 627,629 
 Morrison v. Universal Marine Insurance Co. (1873) L. E. 8 
 
 Ex. 40,197; 42 L.J. Ex. 115; 21W.E.774 . 489,490,541,551,618 
 Morse v. Eoyal (1806) 12 Ves. 355 . . . . 595, 596 
 
 Mortara V. HaU( 1834)6 Sim. 465 70 
 
 Mortimer v. BeU (1865) 1 Ch. 10; 35 L. J. Ch. 25; 13 L. T. 
 
 348 ; 11 Jur. N. S. 897; 14 W. E. 68 518 
 
 Mortimer v. Capper (1782) 1 Bro. C. C. 158 ... 177 
 
 Mortimer i;. ShortaU (1842) 2 Dr. & War. 363 . . . 472 
 
 Mortlock i;. BuUer (1804) 10 Ves. 292 497 
 
 Moss c. AveriU (1853) ION. Y. 449 128 
 
 Mossi'.Smith(l850)9C.B.94; 19L.J.C.P.225; 14Jur.l003. 355 
 Mostyn V. Mostyn (1870) 5 Ch. 457 ; 39 L. J. Ch. 780 ; 22 
 
 L. *T. 461 ; 18 W. E. 657 627, 628 
 
 Mostyn V. West Mostyn Coal and Iron Co. (1876) 1 C. P. D. 
 
 145 ; 45 L. J. C. P. 401 ; 34 L. T. 325; 24 W. E. 401 . 450, 507 
 Moullet V. Cole (1872) L. E. 7 Ex. 70; 8 ih. 32 ; 42 L. J. Ex. 
 
 8; 27 L. T. 678; 21 AV. E. 175 319 
 
 Mountstephen v. Lakeman (1871) L. E. 7 Q. B. 196; 7 H. L. 
 
 17; 43 L. J. Q. B. 188; 30 L. T. 437 ; 22 W. E. 617 . 158 
 Moxon V. Payne (1873) 8 Ch. 881 ; 43 L. J. Ch. 240 . 570, 595 
 Moyco V. Nowington (1878) 4 Q. B. D. 32 ; 48 L. J. Q. B. 
 
 125 ; 39 L. T. 535 ; 27 W. E. 319 544 
 
 Mozloy V. Tinkler (1835) 1 C. M. & E. 692; 5 Tyr. 416; 
 1 Giily, 11 26
 
 TAHLE OF CASES. IxV 
 
 MuUiuer l\ Midland Ey. Co. (1879) 11 Ch. D. 611; 48 L. J 
 
 Ch. 2oS ; 40 L. T. 121 ; 27 W. E. 330 .... 
 Mumford v. Getliinft- (1859) 7 C. B. N. S. 305; 29 L. J 
 
 C. P. 105 ; 1 L. T: (54; (J Jur. N. S. 428; 8 W. E. 187 
 Municipal Building Society v. Kent (1884) 9 Apji, Ca. 2G0 
 
 53 L. J. Q. B. 290; 51 L. T. 4 ; 32 W. E. G81 . 
 Munro, I'Jx parte (1870) 1 Q. B. D. 724 ; 45 L. J. Q. B. 81G 
 
 35 L. T. 857 ; 24 W. E. 1017 
 
 Murphy v. Bocse (1875) L. E. 10 Ex. 126; 44 L. J. Ex. 40 
 
 32 L. T. 122 ; 23 W. E. 474 
 
 Murray v. Barlee (1834) 3 M. & K. 209 
 
 Murray v. E. India Co. (1821) 5 B. & Aid. 204 
 
 Murray >'. Elavell (1883) 25 Ch. Div. 89 ; 53 L. J. Ch. 185 
 
 32 W. E. 102 
 
 Murray <•. Parker (1854) 19 Beav. 305 .... 
 Murray v. Pinkett (1846) 2 Ha. 120 ; 12 CI. & Fin. 764 
 Myers v. Watson (1851) 1 Sim. N. S. 523 .. . 
 
 PAGE 
 
 124 
 317 
 
 292 
 
 630 
 
 163 
 647 
 
 128 
 
 203 
 471 
 211 
 697 
 
 Naden, Ex parte (1874) 9 Ch. 070; 43 L. J. Bk. 121 ; 30 
 
 L. T. 575, 743; 22 W. E. 768, 936 264 
 
 Nash V. Hodgson (1855) 6 D. M. G. 474 ; 25 L. J. Ch. 186; 
 
 1 Jur. N. S. 946 600 
 
 National Provincial Bank of England, Ex pfl?-fe(1876)4 Ch. 
 
 D. 241 : 46 L. J. Bk. 11 ; 35 L. T. 673; 25 W. E. 100 . 473 
 
 Nealev. Turton(1827) 4Biug. 149 129 
 
 Nedby v. Nedby (1852) 5 De G. & Sm. 377 . . . . 559 
 Neilson, Ex jxcrte (1853) 3 D. M. G. 556; 22 L. T. O. S. 190 ; 
 
 18 Jur. 297 ; 2 W. E. 121 254 
 
 Nelson v. Stocker (1859) 4 De G. & J. 458; 28 L. J. Ch. 751; 
 
 5 Jur. N. S. 751 77 
 
 Nerot r. Wallace (1789) 3 T. E. 17 176 
 
 Nesbitt r. Berridge (1863) 32 Beav. 280 ; 4 D. J. S. 45 ; 
 
 3 N. E. 53; 9 L. T. 588; 10 Jur. N. S. 53; 12 W. E. 283 . 583 
 Neyill v. Snelling (1880) 15 Ch. D. 679 ; 49 L. J. Ch. 777 ; 
 
 43 L. T. 244 585, 586, 587, 588 
 
 New Brunswick, &c. Co. v. Conybeare (1862) 9 H. L. C. 711 ; 
 
 31 L. J. Ch. 297; 6 L. T. 109 ; 10 W. E. 305 . 526, 532 
 New Brunswick, &c. Co. v. Muggeridge (1860) 1 Dr. & Sm. 
 
 363 ; 4 Drew. 686 ; 30 L. J. Ch. 242 ; 3 L. T. 651 ; 7 Jm-. 
 
 N. S. 132 ; 9 W. E. 193 . . . . _ . . . 508 
 New Sombrero Phosphate Co. v. Erlanger (1877) 5 Ch. Div. 
 
 73 ; 46 L. J. Ch. 425 ; 36 L. T. 222 ; 25 W. E. 436 . 245, 509 
 New York Life Ins. Co. r.Statham(1876)3 Otto(93U. S.)24 . 279 
 New Zealand Banking Corporation, Ex 'p'O'tf (1867) 3 Ch. 
 
 154 ; 37 L. J. Ch. 4l8 ; 18 L. T. 132 ; 16 W. E. 533 . . 214 
 New Zealand Land Co. v. Watson (1881) 7 Q. B. Div. 374; 
 
 50 L. J. Q. B. 433 ; 44 L. T. 675 ; 29 W. E. 694 . . 98 
 Newburgh r. Newburgh (1820) 5 Madd. 364 . . . . 691 
 Newcomb v. De Eoos (1859) 2 E. & E. 271 ; 29 L. J. Q. B. 4; 
 
 6 Jur. N. S. 68 ; 8 W. E. 5 643 
 
 Newell V. EacUord (1867) L. E. 3 C. P. 52; 37 L. J. C. P. 1; 
 
 17L. T. U8; 16 W. E. 97 162 
 
 P. e
 
 Ixvi TABLE OF CASES. 
 
 PAGE 
 
 Newry and Enniskillen Ey. Co. v. Coombo (1849) 3 Ex. 
 
 505 ; 5 Eailw. Ca. 633 ; 18 L. J. Ex. 325 . . 59, 64 
 Newton V. Marsden (1862) 2 J. &. H. 356; 6 L. T. 155; 10 
 
 W. E. 438 309 
 
 Nichol V. Godts (1854) 10 Ex. 191; 23 L, J. Ex. 314; 23 
 
 L. T. 0. S. 162 457 
 
 Nichols V. Marsland (1876) 2 Ex. Div. 1; 46 L. J. Ex. 174; 
 
 35L. T. 725; 25 W. E. 173 367 
 
 Nicliolson V. Bradfield Union (1866) L. E. 1 Q. B. 020 ; 35 
 
 L. J. Q. B. 176; 14L. T. 830; 14 W. E. 731 . . .151 
 
 NieU V. Morley (1804) 9 Ves. 478 92 
 
 Noble V. Ward (1867) L. E. 1 Ex. 117; 2 ih. 135; 4 II. & C. 
 
 149; 15 L. T. 672 457, 619 
 
 North British Insurance Co. v. Lloyd (1854) 10 Ex. 523; 
 
 24 L. J. Ex. 14 ; 1 Jur. N. S. 45 . . . . 493, 494 
 
 Norton v. Eelly (1764) 2 Eden, 286 571 
 
 Norton v. Turville (1723) 2 P. Wnis. 144; 2 Eq. Ca. Ab. 152; 
 
 8 Ir. Ch. Appx 652 
 
 Norwich, Mayor of, v. Norfolk Ey. Co. (1855) 4 E. & B. 397; 
 
 3 C. L E. 519; 24 L. J. Q. B. 105; 1 Jur. N. S. 344 . 120. 
 
 126, 235, 348, 660, 669 
 Norwood ?;. Eead (1557-8) B. E. Plowd. 180 . . .191 
 Nottidge V. Prince (1860) 2 Giff. 246; 29 L. J. Ch. 857; 6 
 
 Jur. N- S. 1066 571 
 
 Nugent i;. Smith (1876) 1 C. P. Div. 423; 45 L. J. C. P. 
 
 697; 34 L. T. 827; 25 W. E. 117 367 
 
 Nunn V. Fabian (1865) 1 Ch. 35; 35 L. J. Ch. 140; 13 L. T. 
 
 343; 12 Jur. 154 611 
 
 Nuttall V. Bracewell (1866) L. E. 2 Ex. 1 ; 4 H. & 0. 714 ; 
 
 36 L. J. Ex. 1 ; 15 L. T. 312 ; 12 Jur. N. S. 989 . . 228 
 
 Oakden v. Pike (1865) 34 L. J. Ch. 620; 12 L. T. 527 ; 11 
 
 Jur. N. S. 666; 13 W. E. 673 464 
 
 Oakeloy v. Pasheller (1830) 4 CI. & Fin. 207 .. . 242 
 Oakes v. Turquand (1867) L. E. 2 H. L. 325 ; 36 L. J. Ch. 
 
 949 ; 16 L. T. 808 . . . .391,433,530,546,550 
 Oakley v. Port of Portsmouth and Eyde Steam Packet Co. 
 
 (1856)llEx.618; 25L.J.Ex.99; 26L.T.O.S.204; 4W.E.236. 366 
 Odessa Tramways Co. v. Mendel (1878) 8 Ch. Div. 235; 47 
 
 L. J. Ch. 505 ; 38 L. T. 731 ; 26 W. E. 887 . . . 321 
 
 Ogilvio I'.Jeaffreson (1859-60) 2 Giff. 353; 8W. E. 745 . 416, 417 
 Ogle, ^xpar^e (1873) 8 Ch. 711; 42L.J.Bk.99; 2nV.E.938. 396 
 Oglcsby V. Yglesias (1858) E. B. & E. 930; 27 L. J. Q. B. 
 
 356; 31 L. T. O. 8. 234; 6 W. E. 690 .... 99 
 Oldcrshaw v. King (1857) 2 II. & N. 517; 27 L. J. Ex. 120; 
 
 3 Jur. N. S. 1152 ; 5 W. E. 753 181 
 
 Oliver, Ex parte (1849-51) 4 De G. & Sm. 354 . . . 239 
 
 Omerod v. Ilardman (1801) 5 Ves. 722 457 
 
 Oriental I'^inancial Corporation v. Ovcrcnd, Gurney & Co. 
 
 (1874) L. E. 7 II. L. 348 242 
 
 Ormes /-. Boadol (1860) 2 Giff. 166; 2 D. F. J. 333; 30 
 
 L. J. Ch. 1 ; 9 AV. E. 25 537, 572
 
 TA15LE OF CASES. Ixvil 
 
 PAOK 
 
 Ormrod i: Iluth (184j) 14 M. & W. Gul ; 14 L. J. Ex. 3GG. 51G 
 0'Eorkeu.Bolingbroke(l877)'2Ai)ii.Ca.814; 2GAV.R. 239. 584,589 
 Osborne v. Eo?:ers (1GG9) 1 Wins. Sannd. 357 . . . 12 
 Osborne v. Williams (1811) 18 Vcs. 379 . . . 287, 337 
 Oswald V. Mayor of Bci-wick-on-Tweed (185G) 5 H. L. C. 
 
 856; 25 L. J. Q. B. 383 ; 2 Jur. N. S. 743 .. . 242 
 Oulds V. Ilarrison (1854) 10 Ex. 572; 3 C. L. E. 353; 24 
 
 L. J. Ex. GG 259 
 
 Overton v. Banister (1844) 3 Ha. 503 ; 8 Jur. 90G . . 7G 
 Owen V. Iloman (1851) 3 Mac. & Gr. 378; 4 II. L. C. 997 ; 
 
 1 Eq. E. 370; 17 Jur. 8G1 350,517 
 
 Owens v. Dickenson (1840) 1 Cr. & Ph. 48 . . . . 647 
 
 Page f. Cox (1851) 10 Ha. 163 203 
 
 Page V. Horno (184G-8) 9 Beav. 570; 11 I'h. 227 . . . 559 
 Paice V. Walker (1870) L. E. 5 Ex. 173 ; 39 L. J. Ex. 109 ; 
 
 22 L. T. 547 ; 18 W E. 789 98, 99 
 
 Paine r. Strand Union (1846)8 Q. B. 326; 15 L. J. M. C. 
 
 89 ; 10 Jur. 308 152 
 
 Pakenliam's Case (1368) H. 42, E. 3, 3, pi. 14 ... 225 
 
 Palmer r. Jobnson (1884) 13 Q. B. Uiv. 351; 53 L. J. Q. B. 
 
 348; 50 L. T. 211; 32 W. E. 293 . . . .498,505 
 Palmer v. Locke (1880) 15 Ch. Div. 294; 28 W. E. 926 . .310 
 
 Palmer I'. Neave( 1805) 11 Ves. 165 249 
 
 Palyart v. Leckie (1817) 6 M. & S. 290 335 
 
 Panama and S. Pacific Tclegrapli Co. v. India Eubber Co. 
 
 (1875) 10 Cli. 515; 45 L. J. Ch. 121; 32 L. T. 517; 
 
 23 W\ E. 583 246 
 
 Panmure, Ex parte (1883) 24 Ch. Div. 367 ; 53 L. J. Ch. 
 
 57 ; 32 W. E. 236 106 
 
 Paradiner. Jane (1648) Aleyn, 26 .... 363,364 
 Parfitt V. Lawless (1872) L.'E. 2 P. & D. 462 ; 41 L. J. P. 
 
 G8; 27 L. T. 215 ; 21 W. E. 200 560 
 
 Paris Skating Eink Co., Re (1877) 5 Ch. Div. 959 ; 37 L. T. 
 
 298; 25 W. E. 701 299 
 
 Parker v. Butcher (]867) 3Eq. 762; 36 L. J. Ch. 552 . . 558 
 Parker 1-. G. W. Ey. Co. (1844) 7 M. & Gr. 253; 7 Scott, 
 
 N. E. 835 ; 3 Eailw. Ca. 563 ; 13 L. J. C. P. 105 . . 555 
 Parker r. McKenna (1874) 10 Ch. 96; 44 L. J. Ch. 425 ; 31 
 
 L. T. 739; 23 W. E. 271 245,552 
 
 Parker v. S. E. Ey. Co. (1876) 1 C. P. Div. 618 ; 46 L. J. 
 
 C. P. 76S ; 37 L. T. 540 ; 25 W. E. 564 . . . .47 
 
 Parkesv. White (1804-5) 11 Ves. 209 648 
 
 Parkin V. Thorold (1852) 16 Beav. 59 . . . 462,463,465 
 Parsons v. Alexander (1855) 5 E. & B. 263 ; 24 L. J. Q. B. 
 
 277 ; 1 Jur. N. S. 660 685 
 
 Partington v. Att.-Gen. (1869) L. E. 4 H. L. 100 . . 80 
 
 Partridge v. Strange (1553-4) Plowd. 77 301 
 
 Pasley v. Ereeman (1789) 3 T. E. 51 ; 2 Sm. L. C. 66. . 484 
 Patman r. Ilarland (1881) 17 Ch. D. 353; 50 L. J. Ch. 642; 
 
 44 L. T. 728 ; 29 W. E. 707 226 
 
 e2
 
 Ixviii TABLE OF CASES. 
 
 PAGE 
 
 Patrick v. Milner (1877) 2 C. P. D. 342; 4G L. J. C. P. 537 ; 
 
 36 L. T. 738 ; 25 W. E. 790 464 
 
 Pauling V. L. & N. W. Ey. Co. (1853) 8 Ex. 867 ; 7 Eailw. 
 
 Ca. 816; 23 L. J. Ex. 105 151 
 
 Pawle's Case (1869) 4 Ch. 497; 38 L. J. Ch. 318; 20 L. T. 
 
 100 ; 17 W. E. 391 539 
 
 Payne's Case (1869) 9 Eq. 223 520 
 
 Payne v. Cave (1789) 3 T. E. 148 13 
 
 Peacock v. Evans (1809) 16 Ves. 512 .. . 574, 581 
 Peacock V. Monk (1750-1) 2 Ves. sen. 190 . . . .646 
 
 Peacock V. Penson (1848) 11 Beav. 355 698 
 
 Pearce v. Brooks (1866) L. E. 1 Ex. 213 ; 35 L. J. Ex. 134; 
 
 14 L. T. 288 ; 12 Jm\ N. S. 342 ; 14 W. E. 614 . 323, 324 
 
 Pearce v. Watts (1875) 20 Eq. 492; 44 L. J. Ch. 492; 
 
 23W. E. 771 43 
 
 Pears v. Laing (1871) 12 Eq. 41 ; 40 L. J. Cli. 225 ; 24 L. T. 
 
 19 ; 19 W. E. 653 602 
 
 Pease v. Gloaliec (1866) L. E. 1 P. C. 219; 35 L. J. P. C. 
 
 66; 15L. T. 6; 15 W. E. 201 545 
 
 PeclieUv. Watson (1841) 8 M. &W. 691 . . . .294 
 Peek V. Gurney (1873) L.' E. 6 H. L. 377 ; 43 L. J. Ch. 19 ; 
 
 22 W. E. 29 514, 516, 517, 534, 699 
 
 Peeters v. Opie (1671) 2 Wms. Saund. 743 . . . . 462 
 Peii'ce V. Corf (1874) L. E. 9 Q. B. 210 ; 43 L. J. Q. B. 52 ; 
 
 29L.T. 919; 22 W. E. 299 163 
 
 PeUecat v. Angell (1835) 2 C. M. & E. 311 ; 1 Gale, 187 ; 
 
 5 Tyr. 945 282 
 
 Pence v. Langdon (1878) 9 Otto (99 U. S.) 578 . . . 549 
 Pender v. Lushington (1877) 6 Ch. D. 70 ; 46 L. J. Ch. 317 . 664 
 Pennington (Doe d.) v. Taniere (1848) 12 Q. B. 998; 18 
 
 L. J. Q. B. 49; 13 Jur. 119 155 
 
 Perrett's Case (1873) 15 Eq. 250; 42 L. J. Ch. 305; 28 L. T. 
 
 255 ; 21 W. E. 401 40, 433 
 
 Persse v. Persse (1840) 7 CI. & Fin. 279 ; West, 110 . . 302 
 Peruvian Ey. Co., Re (1867) 2 Ch. 617 ; 36 L. J. Ch. 864 ; 
 
 16 L. T. 644 ; 15 W. E. 1002 129 
 
 Peter v, Compton (1694) 1 Sm. L. C. 351 ; Skinner, 353 . 161 
 Peters v. Fleming (1840) 6 M. & W. 42 . . . .67 
 Pharmaceutical Soc. v. London and Provincial Supply Asso- 
 ciation (1880) 5 App. Ca. 857; 49 L. J. Q. B. 736; 13 
 
 L. T. 389 ; 28 W. E. 957 ; 45 J. P. 20 . . . . 116 
 
 Phelps V. Lylo (1839) 10 A. &E. 113 205 
 
 Phillips V. Bi.stolli (1824) 2 B. & C. 511 ; 3 D. & E. 822 . 429, 451 
 Phillips V. Caldcleugh (1868) L. E. 4 Q. B. 159; 38 L. J. 
 
 Q. B. 68 ; 20 L. T. 80 ; 17 W. E. 575 . . 440, 496, 498 
 PhilUps V. Clagett (1843) 11 M. & W. 84; 2 D. N. S. 1004; 
 
 12 L. J. Ex. 275 461 
 
 Phillips V. Foxall (1872) L. E. 7 Q. B. 666; 41 L. J. Q. B. 
 
 293; 27 L. T. 231; 20 W. E. 900 243 
 
 Phillips V. Ilomfray (1S71) 6 Ch. 770 503 
 
 Phillips V. Miller (1875) J.. E. 10 C. P. 420; 44 L. J. C. P. 
 
 2(J5 ; 32 L. T. 638 ; 23 W. E. 834 500
 
 TABLK OF CASES. Ixix 
 
 I'AOE 
 
 Pliimi)3 V. MulUngs (1N71) 7 Ch. 2-14 ; 41 L. J. Ch. 211 ; 20 
 
 W. E. 129 562 
 
 Phillips V. PhilUps (18G1) 4 D. P. J. 208; 31 L. J. Ch. 321; 
 
 5 L. T. 655 ; 8 Jur. N. S. 145 ; 10 W. E. 236 . . 397, 398 
 Philpott V. Jones (1834) 4 N. & M. 14 ; 2 A. & E. 41 . . 631 
 Phipps V. Lovegrove (1873) 16 Eq. 80; 42 L. J. Ch. 892; 
 
 28 L. T. 584; 21 W. E. 590 .... 211, 212 
 
 Phosphate of Lime Co. v. Green (1871) L. E. 7 C. P. 43; 25 
 
 L. T. 636 668 
 
 Picard v. Hine (1869) 5 Ch. 274; 18 W. E. 75, 178 . 648, 649 
 Pickard r. Sears (1837) 6 A. & E. 469; 2 N. & P. 488 . . 448 
 Pickering's Claim (1871) 6 Ch. 525 ; affirming 24 L. T. 178 . 98 
 Pickering v. Ilfracombe Ev. Co. (1868) L. E. 3 C. P. 235 ; 
 
 37 L. J. C. P. US ; 16 L. T. 650; 16 W. E. 458 . 212, 321 
 Pickering v. Stephenson (1.S72) 14 Eq. 322; 41 L. J. Ch. 493; 
 
 26 L. T. 608 ; 20 W. E. 654 662 
 
 Pidcock r. Bishop (1825) 3 B. & C. 605 ; 5 D. »S: E. 505 . 494 
 Piercy v. Young (1879) 14 Ch. Div. 200; 42 L. T. 710; 28 
 
 W. E. 845 292 
 
 Piggott V. Stratton (1859) 1 D. E. J. 33; 29 L. J. Ch. 1 ; 6 
 
 Jur. N. S. 129 612, 696 
 
 Pigot'sCase(1615) 11 Co. Eep. 27& 320 
 
 Pigott V. Thompson (1802) 3 Bos. & P. N. E. 147 . 200, 206 
 Pike V. Eitzgibbon (1881) 17 Ch. Div. 454 ; 50 L. J. Ch. 394 ; 
 
 44 L. T. 562; 29 W. E. 551 86, 650 
 
 Pilcher v. Eawlins (1872) 7 Ch. 259 ; 41 L. J. Ch. 485; 25 
 
 L. T. 921 ; 20 W. E. 281 ; 16 Sol. J. 245 . . . . 397 
 Pilkington v. Scott (1846) 15 M. & W. 657 ; 15 L. J. Ex. 329 . 319 
 Pillans r. Yan Mierop (1765) 3 Burr. 1664 . . . 168, 678 
 
 Pinchon'sCase (1612) 9 Co. Eep. 86i 191 
 
 Pinkett /■. Wright (1842) 2 Ha. 120 ; 12 CI. & Fin. 784 ; 12 
 
 L. J. Ch. 119; 6 Jur. 1102 211 
 
 Pinnel's Case (1602) 5 Co. Eep. 117 197 
 
 Pisani v. A.-G. for Gibraltar (1874) L. E. 5 P. C. 516; 30 
 
 L. T. 729 ; 22 W. E. 900 566 
 
 Pitt V. Smith (1811) 3 Camp. 33 ... . 90, 418 
 
 Pittam V. Poster (1823) 1 B. it C. 248; 1 Wms. Saund. 172; 
 
 2 D. & E. 363 81 
 
 Piatt V. Bromage (1854) 24 L. J. Ex. 63 409 
 
 Playford v. United Kingdom Electric Telegraph Co. (1869) 
 L. E. 4 Q. B. 706 ; 10 B. & S. 759 ; 38 L. J. Q. B. 249 ; 
 
 21 L. T. 21 ; 17 W. E. 968 201 
 
 Pledge V. Buss (1860) Johns. 663; 6 Jur. N. S. 695 . 243, 493, 494 
 Plevins v. Downing (1876) 1 C. P. D. 220; 45 L. J. C. P. 
 
 695 ; 35 L. T. 263 639 
 
 Plews V. Baker (1873) 16 Eq. 564 ; 43 L. J. Ch. 212 . . 291 
 Police Jury v. Britton (1872) 15 Wallace (Sup. Ct. U. S.) 566 . 131 
 
 Popham V. Brooke (1828) 5 Euss. 8 567 
 
 Poplett V. Stockdale (1825) 1 E. & M. 337 ; 2 C. & P. 198 . 237 
 Pordage v. Cole (1669) 1 Wms. Saund. 548 . . . . 385 
 Porritt V. Baker (1855) 3 C. L. E. 432 ; 10 Ex. 759 ; 1 Jur. 
 N. S. 336 683
 
 IXX TABLE OF CASES. 
 
 PAGE 
 
 Port of London Co.'s Case (1854) 5 D. M. G. 465; 2 Eq. Ecp. 
 260 ; 23 L. T. O. S. 63 ; 2 W. E. 389, 546 .... 665 
 
 Porter's Case (1593) 1 Co. Eep. 23 a 330 
 
 Potter V. Duffield (1874) IS Eq. 4; 43 L. J. Ch. 472; 22 
 
 W. E. 585 162 
 
 Potter V. Sanders (1846) 6 Ha. 1 641 
 
 Potts I'. Bell (1800) 8 T. E. 548; 2 Esp. 612 . . . . 278 
 Poulton V. L. & S. W. Ey. Co. (1867) L. E. 2 Q. B. 534; 
 
 8 B. & S. 616 ; 36 L. J. Q. B. 294 ; 17 L. T. 11 . . 395 
 Poussard v. Spiers and Pond (1876) 1 Q. B. D. 410 ; 45 L. J. 
 
 Q. B. 621 ; 34 L. T. 572 ; 24 W. E. 819 . . . . 376 
 Powell('.Emot(1875)10Ch. 424; 33L.T.110; 23W.E.777 . 498 
 Po^-ell V. Smith (1872) 14 Eq. 85 ; 41 L. J. Ch. 734 ; 20 
 
 W. E. 602 403 
 
 Powell V. Thomas (1848) 6 Ha. 300 612 
 
 Practical Knowledge, Society of, v. Abbott (1840) 2 Beav. 
 
 559 117, 118 
 
 Pratt V. Barker (1826) 1 Sim. 1 ; 4 Euss. 507 .. . 571 
 
 Prees v. Coke (1870-1) 6 Ch. 645 575 
 
 Prentice v. London (1875) L. E. 10 C. P. 679 ; 44 L. J. C. P. 
 
 353 ; 33 L. T. 251 . . . • . . . . 292 
 Preston v. Dania (1872) L. E. 8 Ex. 19; 42 L. J. Ex. 33; 
 
 27 L. T. 612 ; 21 W. E. 128 .... 386, 467 
 
 Preston v. Luck (1884) 27 Ch. Div. 497 ... . 402 
 Price V. Berrington (1S50-1) 3 Mac. & G. 486; 7 Ha. 394 . . 92 
 
 Price V. Dyer (1810) 17 Ves. 356 457 
 
 Price V. Easton (1833) 4 B. & Ad. 433 ; 1 N. & M. 303 . 201, 203 
 Price V. Hewett (1852) 8 Ex. 146 ; 17 Jnr. 4 . . .74 
 Price V. Ley (1863) 4 Giff. 235; 7 L. T. 845 ; 9 Jnr. N. S. 
 
 295; 11 W. E. 399 469,470 
 
 Price V. Macanlay (1852) 2 D. M. G. 339 . . . . 525 
 Pride r. Bubb (1871) 7 Ch. 64; 41 L. J. Ch. 105; 25 L. T. 
 
 890 ; 2lO W. E. 220 646, 649 
 
 Prideaux v. Lonsdale (1863) 4 Giff. 159; 1 D. J. S. 433; 
 
 9 Jur. N. S. 507 247, 564 
 
 Priestley r. Pernie (1865) 3 H. & C. 977; 34 L. J. Ex. 173 . 102 
 Prince of Wales Assce. Co. v. Harding (1857) E. B. & E. 
 
 183 ; 27 L. J. Q. B. 297 ; 4 Jur. N. S. 851 . . . . 666 
 Pi'inting and Numerical Ecgistering Co. v. Sampson (1875) 
 
 19Eq.462; 44 L. J.Ch. 705; 32L.T.354; 23 W.E. 463 . 277,317 
 Pritchard v. Merchants' Life Insurance Society (1858) 3 
 C. B. N. S. 622 ; 27 L. J. C. P. 169 ; 4 Jur. N. S. 307 . 444 
 
 Prole V. Soady (1859) 2 Giff. 1 049 
 
 Pro.sser v. Edmonds (1835) 1 Y. & C. Ex. 481 . 293, 295, 299 
 Proudfoot r. Montefioro (1867) L. E. 2 Q. B. 511 ; 8 B. & S. 
 
 510; 36 L. J. (i. B. 225 ; 16 L. T. 585; 15 W. E. 920 . 490 
 Prysor. Pryso (1872) 15 Eq. 86; 42 L. J. Ch. 253; 27 L. T. 
 
 575; 21 W. E. 219 .301 
 
 Pulbrook V. Lawcs (1876) 1 Q. B. D. 284; 45 L. J. Q. B. 
 
 178; .34 L. T. 95 609 
 
 PulslVml r. Eichards (1853) 17 Boav. 96; 22 L. J. Ch. 559; 
 
 I W. E. 295 536 
 
 I'urcolH'. Macnamara (1807) 14 A^cs. 91 . . . .573
 
 TARLE OF CASES. Ixxl 
 
 ^ , PAGE 
 
 Tybus ;•. Gibb (1S,jG) G E. & B. 902 ; 26 L. J. Q. B. 41 ; 
 
 3 JuY. N. S. '315 24*^ 
 
 Pyke, Ex parte (1878) 8 Cb. Div. 754; 47 L. J. Bk. 100; 38 
 
 L. T. 923 ; 20 W. E. 806 260 
 
 Pym V. Campbell (1856) 6 E. & B. 370; 2o L. J. Q. B. 277; 
 
 2 Jur. N. S. 641 458 
 
 Quarrier v. Colston (1842) 1 Ph. 147; (> Jur. 959; 12 L. T. 
 
 0. S. 57 344 
 
 Quincey v. Sbarpe (1876) 1 Ex. D. 72; 45 L. J. Ex. 347; 
 
 34 L. T. 495 ; 24 W. E. 373 601 
 
 Eabone v. Williams (17S5) 7 T. E. 360, n 101 
 
 Eadenhurst v. Bates (1826) 3 Bing. 463; 11 Moore, 421 . . 204 
 Eafflos r.Wicbelliaus (1864) 2 H. & C. 906; 33 L. J. Ex. 160 . 429 
 
 Eaggett V. Bishop (1826) 2 C. & P. 343 632 
 
 Eaggett V. Musgrave (1827) 2 C. & P. 556 . . . . 632 
 Eailton v. Matthews (1844) 10 CI. & F. 934 . . 493, 494 
 Eam Coomar Coondoo v. Cbunder Canto Mookerjee (1876) 
 
 2 App. Ca. 186 . 303 
 
 EamloII Thackoorseydass v. SoojumnuU DliondmuU (1848) 
 
 6 Moo. P. C. 300 273 
 
 Eamsden v. Brearley (1875) L. E. 10 Q. B. 147; 44 L. J. 
 
 Q. B. 46 ; 32 L. T. 24 ; 23 W. E. 294 . . . .84 
 Eamsden v. Dyson (1865) L. E. 1 II. L. 129; 12 Jur. N. S. 
 
 506; UW.'E. 926 612 
 
 Eamsgate Hotel Co. v. Goldsmid (1866) L. E. 1 Ex. 109; 4 
 H. & C. 164; 35 L. J. Ex. 90; 13 L. T. 715; 12 Jur. N. S. 
 
 455 ; 14 W. E. 335 25 
 
 Eamsgate Hotel Co. v. Montefiore (1866) ib 25 
 
 Eandall v. Morgan (1805) 12 Yes. 67 606 
 
 Eandegger v. Holmes (1866) L. E. 1 C. P. 679 . . . 291 
 Eandell, Saunders & Co. v. Thompson (1876) 1 Q. B. Div. 
 
 748 ; 45 L. J. Q. B. 713 ; 35 L. T. 193 ; 24 W. E. 837 . 292 
 Eandell r. Trimen (1856) 18 C. B. 786 ; 25 L. J. C. P. 307 . 106 
 Eankin v. Potter (1872-3) L. E. 6 H. L. 83; 42 L. J. C. P. 
 
 169 ; 29 L. T. 142 ; 22 W. E. 1 376 
 
 Eann v. Hughes (1778) 7 T. E. 350, n. ; 4 Bro. P. C. 27 . . 169 
 Eaphael v. Bank of England (1855) 17 C. B. 161 ; 25 L. J. 
 
 C. P. 33 218 
 
 Eashdall v. Ford (1866) 2 Eq. 750; 35 L. J. Ch. 769; 14 
 
 L. T. 790 ; 14 W. E. 950 521 
 
 Eawley v. Eawley (1876) 1 Q. B. Div. 460 ; 45 L. J. Q. B. 
 
 675; 35 L. T. 191; 24 W. E. 995 61 
 
 Eawlins v. Wickham (1858) 3 De G. & J. 304 ; 28 L. J. Ch. 
 
 188 ; 5 Jur. N. S. 278 .... 513,516,517,536 
 Eaymond v. Minton (1866) L. E. 1 Ex. 244; 4 H. & C. 371; 
 35 L. J. Ex. 153; 14 L. T. 367 ; 12 Jur. N. S. 435; 14 
 
 W. E. 675 381 
 
 Eayner v. Grote (1846) 15 M. & W. 359; 16 L. J. Ex. 69 . 105, 109
 
 Ixxii TABLE OF CASES. 
 
 Eead^^ Anderson (1884) 13 Q. B. Div. 7/9; ol L. T. oli ; 
 
 32 W. E. 950 ; 2S Sol. J. 747 334 
 
 Eeadv.Legard(18Jl)6Ex. 636; 20L. J.Ex.309; loJur.494. 88 
 Eeade r. Lamb (1851) 6Ex. 130; 2L.M.&P.67; 20L.J.Ex.l61 . 606 
 Eedfem v. Bryning (1877) 6 Ch. D. 133 . . . . 452 
 Eedgrave v. Hnrd (1881) 20 Ch. Div. 1 ; 51 L. J. Cli. 113; 
 
 45 L. T. 485 ; 30 W. E. 251 ... 516, 525, 526 
 
 Eeed v. Deere (1827) 7 B. & C. 261 ; 2 C. & P. 624 . . 619 
 Eees V. WilUams (1875) L. E. 10 Ex. 200; 44 L. J. Ex. 116; 
 
 32 L. T. 462 ; 23 W. E. 550 .... 630, 685 
 
 Eeese Eiver Silver Mining Co. v. Smith (1869) L. E. 4 H. L. 
 
 64 ; 39 L. J. Ch. 849 509, 516, 538 
 
 Eeg. V. AspinaU (1876) 2 Q. B. Div. 48 ; 13 Cox, C. 0. 230, 
 
 563; 46 L. J. M. C. 145 ; 36 L. T. 297 ; 25 W. E. 283 . 238 
 Eeg. V. Cumberland (Justices of) (1848) 5 Eailw. Ca. 332; 
 
 5 D. & L. 431 ; 17 L. J. Q. B. 102 ; 12 Jur. 1025 . 153, 154 
 
 Eeg. V. Doutre (1884) 9 App. Ca. 745 628 
 
 Eeg. V. G. N. of Eng. Ey. Co. (1846) 9 Q. B. 315 ; 16 L. J. 
 
 M. C. 16; 10 Jur. 755 114,115 
 
 Eeg. V. Holmes (1883) 12 Q. B. D. 23 ; 53 L. J. M. C. 37 ; 
 
 49 L. T. 540 643 
 
 Eeg. t\ Lord (1848) 12 Q. B. 757 ; 3 New Sess. Cas. 246; 17 
 
 L. J. M. C. 181 ; 12 Jur. 1001 55 
 
 Eeg. V. Mayor of Stamford (1844) 6 Q. B. 433; L. J. Dig. 6, 
 
 422; 8 Jur. 909 153 
 
 Eeg. V. ISIidcUeton (1873) L. E. 2 C. C. E. 38 ; 12 Cox, C. C. 
 
 260, 417 ; 42 L. J. M. C. 73; 28 L. T. 777 .. . 420 
 Eeg. V. Prince (1875) L. E. 2 C. C. E. 154; 13 Cox, C. C. 
 
 138 ; 44 L. J. M. C. 122 ; 32 L. T. 700 ; 24W. E. 76 . 395 
 Eeg. V. Eeed (1880) 5 Q. B. Div. 483 ; 49 L. J. Q. B. 600 ; 
 
 42 L. T. 835; 28 W. E. 787; 44 J. P. 633 .. . 121 
 Eeg. V. Eowlands (1851) 17 Q. B. 671; 2 Den. C. C. 364; 5 
 
 Cox, C. C. 436; 21 L. J. M. C. 81 ; 16 Jur. 268. . . 237 
 Eeg. V. Warburton (1870) L. E. 1 C. C. E. 274 ; 11 Cox, C. C. 
 
 584; 40 L. J. M. C. 22 ; 23 L. T. 473 ; 19 W. E. 165 . 237 
 Eeidpath's Case (1870) 11 Eq. 86; 40 L. J. Ch. 39; 23 L. T. 
 
 834 ; 19 W. E. 219 641 
 
 Eenals v. Cowlishaw (1878) 9 Ch. D. 125; 11 Ch. Div. 866; 
 
 48 L. J. Ch. 830 ; 41 L. T. 116 ; 28 W. E. 9 . 226, 230, 231 
 Eeuss V. Picksley (1866) L. E. 1 Ex. 342; 4 H. & C. 588; 
 
 35L. J.Ex.218; 15L.T.25; 12 Jur.N.S.628; 14W.E.924 . 162 
 Eeuter v. Electric Telegraph Co. (1856) 6 E. & B. 341 ; 26 
 
 L. J. Q. B. 46; 2 Jur. N. S. 1245 151 
 
 Ecutcr V. Sala (1879) 4 C. P. Div. 239; 48 L. J. C. P. 492; 
 
 40L. T. 476; 27 W. E. 631 464 
 
 Eeynard v. Arnold (1875) 10 Ch. 380 364 
 
 Eeynellr. Spryc(1852) 1 D. M. G. 660; 21 L. J. Ch. 633 . 294, 295, 
 
 329, 337, 513, 514, 525, 528 
 Ehodes v. P.ato (1866) 1 Ch. 252 ; 35 L. J. Ch. 267 ; 13 L. T. 
 
 778 ; 12 Jur. N. S. 178 ; 14 W. E. 292 . . 565, 570, 596 
 Eico 7'. Gordon (IS 17) 11 P.cav. 265 . . . 495, 573 
 
 Eichard.s >'. Delbridgc (1874) IS Eq. 11 ; 13 L. J. Ch. 459; 
 
 22 W. E. 584 185
 
 TABLK OF CASKS. Ixxiii 
 
 Eichards v. Homo Assurance Association (1S71) L. E. G C. P. 
 
 591 ; 40 L. J. C. P. 290 ; 24 L. T. 7o2 ; 19 W. R. 893 . 32 
 Eichardson v. Eicliardson (18G7) 3 Eq. 686; 36 L. J. Ch. 633 . 185 
 Eichardson v. Williamson (1871) L. E. 6 Q. B. 276; 40 L. J. 
 
 a B. 145 106 
 
 Eiche V. Ashbury Ey. Carriage Co. (1874) L. E. 9 Ex. 224 ; 
 
 7 II. L. 653; 4i3 L. J. Ex. 177; 31 L. T. 339 ; 23 W. E. 7 ; 
 
 19 Sol. J. 253 125, 126, 654, 661, 667 
 
 Eidgway r. Sncyd (1854) Kay, 627 372 
 
 Eidgway t'. ^Miarton (1856-7) 6 PI. L. C. 238; 27 L. J. Cli. 46; 
 
 4 Jur. N. S. 173 42 
 
 Eigby V. Connol (1880) 14 Ch. D. 482; 49 L. J. Cli. 328; 42 
 
 L.T. 139; 28W. E. 650 631 
 
 Eitchier.Smitli(1848)6C.B.462; 18L.J.C.P.9; 13Jur.63. 256 
 Eivaz V. Gerussi (1880) 6 Q. B. Div. 222; 50 L. J. Q. B. 176; 
 
 44 L. T. 79 . 490 
 
 Eiver Wear Commissioners v. Adamson (1877) 2 App. Ca. 
 
 743; 47 L. J. Q. B. 193; 37 L. T. 543 . . . . 251 
 Eoberts v. Berry (1853) 3 D. M. G. 284; 22 L. J. Ch. 398 . 463 
 Eoberts v. Bury Commissioners (1869) L. E. 4 C. P. 755 ; 
 
 5/Z^.310;39L.J.C.P.129;22L.T.132; 18W.E.702 . 380,381 
 Eoberts v. Smith (1859) 4 H. & N. 315; 28 L. J. Ex. 164; 
 
 32 L. T. O. S. 320 44, 45 
 
 Eobinson v. Bland (1700) 2 Burr. 1077 ; 1 W. Bl. 234, 256 . 340 
 Eobinsonr. Davison (1871) L. E. 6 Ex. 269; 40 L. J. Ex. 
 
 172 ; 24 L. T. 755 ; 19 W. E. 1036 . 189, 375, 376, 424 
 
 Eobinson v. Mollett (1874-5) L. E. 7 II. L. 802 ; 44 L. J. 
 
 C. P. 362 ; 33 L. T. 544 245 
 
 Eobinson v. Ommanney (1883) 21 Ch. D. 780; 23 Ch. Div. 
 
 285 ; 52 L. J. Ch. 440; 49 L. T. 19; 31 W. E. 525 . . 308 
 
 Eobinson v. Pago (1826) 3 Euss. 114 457 
 
 Eobinson v. Pickering (1881) 16 Ch. Div. 660; 50 L. J. Ch. 
 
 527 ; 44 L. T. 165 ; 29 W. E. 385 .. . 647, 649 
 Eobson V. Dodds (1869) 8 Eq. 301; 38 L. J. Ch. 047; 20 
 
 L.T. 941,968; 17 W. E. 782 663 
 
 Eobson V. Drummond (1831) 2 B. & Ad. 303 . . 193, 422 
 Eoddam v. Morley (1856-7) 1 Do G. & J. 1 ; 26 L. J. Ch. 
 
 438 ; 3 Jur. N. S. 449 598, 602 
 
 Eoe V. Tranmarr (1758) 2 Sm. L. C. 530; Willes, 632 . . 455 
 Eogers v. Hadley (1863) 2 H. & C. 227; 32 L. J. Ex. 241 . 459 
 Eogers v. Ingham (1876) 3 Ch. Div. 351 ; 46 L. J. Ch. 322 ; 
 
 35 L. T. 677 ; 25 W. E. 338 408, 410 
 
 Eolfe v.Flower(1865)L.E. 1 P. C. 27; 3 Moore, P. C. C.N.S. 
 
 365 ; 35 L. J. P. C. 13; 12 Jur. N. S. 345; 14 W. E. 467 . 194 
 Eomford Canal Co., Re (1883) 24 Ch. D. 85; 52 L. J. Ch. 
 
 729; 49 L. T. 118 665 
 
 Eooke V. Lord Kensington (1856) 2 K. & J. 753; 25 L. J. 
 
 Ch. 795 ; 2 Jur. N. S. 755 455, 474 
 
 Eoper V. Holland (1835) 3 A. & E. 99 ; 4 N. & M. 668; 1 
 
 H. & W. 167 633 
 
 Eose V. Gould (1852) 15 Beav. 189 600 
 
 Eosewarne v. Billing (1863) 15 C. B. N. S. 316; 33 L. J. 
 
 C. P. 55 ; 9 L. T. 441 ; 10 Jur. N. S. 496 . . . . 259
 
 Ixxiv TABLE OF CASES. 
 
 PAGE 
 
 Eosher v. Williams (1875) 20 Eq. 210; 44 L. J. Ch. 419; .32 
 
 L. T. 387; 23 W. R. 561 17G 
 
 Eossiter v. Miller (1878) 3 App. Ca. 1124; 48 L. J. Ch. 10 ; 
 
 39 L. T. 173 41, 1(32, 57G 
 
 Eossiter t;. Walsh (1843) 4 Dr. &W. 485 . . . _ . 571 
 Eotherham Alum and Chemical Co., Be (1883) 25 Ch. Div. 
 
 103; 32 W. E. 131 203 
 
 Eousillon V. Eousillon (1880) 14 Ch. D. 351 ; 49 L. J. Ch. 
 
 339 ; 42 L. T. 679 ; 28 W. E. 623 ; 44 J. P. 663 . 316, 318 
 Eoyal British Bank v. Turquand (1856) 6 E. & B. 237; 25 
 
 L. J. Q. B. 317 ; 2 Jur. N. S. 663 . 149, 664, 665, 666 
 
 Eudgev.Bowman(1868)L.E.3Q.B. 689; 37L.J.aB. 193 . 442,447 
 Euffles V. Alston (1875) 19 Eq. 539; 44 L. J. Ch. 388; 32 
 
 L. T. 236 ; 23 W. E. 465 268 
 
 Eumball ('. MetropoHtan Bank (1877) 2 Q. B. D. 194; 46 
 
 L. J. a B. 346; 36 L. T. 240; 25 W. E. 366 . . . 220 
 Eussell V. Da Bandeira (1862) 13 C. B. N. S. 149; 32 L. J. 
 
 C. P. 68; 7 L. T. 804 ; 9 Jur. N. S. 718 . . . .381 
 Eussell V. Eussell (1880) 14 Ch. D. 471 ; 49 L. J. Ch. 268 ; 
 
 42L. T. 112 291 
 
 Eussell V. Thornton (1859) 4 H. & N. 788; 29 L. J. Ex. 9 . 26 
 Eussell V. Wakefield Waterworks Co. (1875) 20 Eq. 474; 44 
 
 L. J. Ch. 496 ; 32 L. T. 685 ; 23 W. E. 887 . . . 664 
 Eyall V. Eowles (1749) 2 Wh. & T. L. C. 729 ; 1 Ves. 348 ; 
 
 sub nom. Eyall v. Eolle, 1 Atk. 685 287 
 
 Eyder v. Wombwell(186S)L. E. 3 Ex. 90; 4 ih. 32; 38 L. J. 
 
 Ex. 8 ; 19 L. T. 491 ; 17 W. E. 167 . . . 67, 69, 70 
 
 Sackville-West V. Yiscount Holmesdale (1870) L. E. 4 H. L. 
 
 543 ; 39 L. J. Ch. 505 476 
 
 St. Alban v. Harding (1859) 27 Beav. 11 . . . .583 
 St. George v. Wake (1831-3) 1 My. & K. 610 . . 247, 248 
 St. John V. St. John (1803-5) 11 Ves. 525 . . _ . . 265 
 St. Leonards, Shoreditch (Guardians of) v. Franklin (1878) 
 
 3C.P.D.377; 47L. J. C.P.727; 39L.T.122; 26W.E.882. 116 
 Sale z;.Lambert( 1874) 18 Eq.l; 43 L.J. Ch. 470; 22W.E.478. 162 
 Salomons v. Laing (1849) 12 Beav. 339 . . . 655, 669 
 
 Salter v. Bradshaw (1858) 26 Beav. 161 583 
 
 Sanders v. St. Neots Union (1846) 8 Q. B. 810; 15 L. J. 
 
 M. C. 104 ; 10 Jur. 56() 152 
 
 Sanderson v. Aston (1873) L. E. 8 Ex. 73 ; 42 L. J. Ex. 64 ; 
 
 28 L. T. 35; 21 AV. E. 293 241,243 
 
 Sanderson v. Graves (1875) L. E. 10 Ex. 234; 44 L. J. Ex. 
 
 210; 33 L. T. 269; 23 W. E. 797 . . . 611, 619, 639 
 Santos i\ Illidgo (1860) 6 C. B. N. S. 84 1 ; 8 //*. 861 ; 28 L. J. C. P. 
 
 317 ; 29 ih. 348; 6 Jur. N. S. 1348; 8 W. E. 705 . 340, 342, 685 
 
 Savage v. Tyors (1872) 7 Ch. 356 452 
 
 Savcry v. King (1856) 5 II. L. C. 627 ; 25 L. J. Ch. 482 ; 
 
 2 Jur. N. S. 503 5(n), 569, 595 
 
 Savillo r. Savillo (1721) 1 P. Wms. 745 ... . 577 
 Savin r. Iloylako Ey. Co. (1865) L. E. 1 Ex. 9; 4 U. & C. 67; 
 
 35l;.J.Ex.52; 13]i.T. 37 I ; 1 1 Jur.N. S.934 ; 14 W.E. 109 . 260
 
 TAin,i: OF (ASKS. Ixxv 
 
 PAGE 
 
 Saxon Life Assuraiico Socit-ty, 7,V (1SG2) 2 J. & II. 408 . 4()S 
 Sayers v. Collver (1884) 24 Ch. I). ISO; 28 Ch. iJiv. 103 ; 52 
 
 L. J. Ch. 770; 48 L. T. St;39; 32 W. li. 200; 47 J. P. 741 . 231 
 Scaltock V. llarston (1875) 1 C. P. D. 106; 4.5 L. J. C. P. 
 
 12o ; 34 L. T. 130 ; 24 AV. E. 431 224 
 
 Scarpellini r. Atcheson (1845) 7 Q. B. SG4 ; 14 L. J. Q. B. 
 
 333 ; 9 Jur. 827 599 
 
 Schmaltz v. Avery (1851) 16 Q. B. 655 ; 20 L. J. Q. B. 228; 
 
 15 Jur. 291 108, 109 
 
 Scholefield v. Templer (1859) Johns. 155; 4 De G. & J. 429; 
 
 28 L. J. Ch. 452 ; 5 Jur. N. S. 619 . . . . 547, 549 
 Scholey v. CentralBy. Co. of Venezuela (1867-8) 9 Eq. 266, n. . 537 
 Schotsmans v. Lancashire and Yorkshire Ev. Co. (1867) 2 
 
 Ch. 332 ; 36 L. J. Ch. 361 ; 16 L. T. 189; 15 AV. E. 537 . 401 
 Scotson V. Pegg- (1861) 6 H. & N. 295; 30 L. J. Ex. 225 . 178 
 Scott V. Averv (1855-6) 5 H. L. C. 811 ; 25 L. J. Ex. 303; 
 
 2 Jur. N. 8. 815 292 
 
 Scott V. Corp. of Liverpool (1858) 3 De G. & J. 334; 28 L. J. 
 
 Ch. 236 ; 5 Jur. N. iS. 104 293 
 
 Scott V. Gillmoro (1810) 3 Taiint. 226 631 
 
 Scott V. Littledale (1858) 8 E. & B. 815; 27 L. J. Q. B. 201; 
 
 4 Jur. N. S. 849 431 
 
 Scott V. Lord Ebury (1867) L. E. 2 C. P. 255 ; 36 L. J. C. P. 
 
 161; 15L. T. 506; 15 AV. E. 517 107 
 
 Scott V. Pilkincton (1862) 2 B. & S. 11 ; 31 L. J. Q. B. 81 . 21 
 Scott V. Tvler (1788) 2 A\'h. & T. L. C. 115; 2 Bro. C. C. 431; 
 
 2 Dick.'712 308 
 
 Scottish N. E. Ey. Co. r. Stewart (1859) 3 Macq. H. L. C. 
 
 382 ; 5 Jur. N. S. 607 659 
 
 Scottish Petroleum Co. (1883) 23 Ch. Div. 413; 49 L. T. 348; 
 
 31 AV. E. 846 539, 697 
 
 Seager v. Aston (1857) 26 L. J. Ch. 809; 29 L. T. 0. S. 223; 
 
 3 Jur. N. S. 481 ; 5 AV. E. 548 600 
 
 Seaton v. Grant (1867) 2 Ch. 459; 36 L. J. Ch. 638; 16 L. T. 
 
 758; 15 AA^ E. 420, 602 663 
 
 Seeari;. Lawson (1880) 15 Ch. Div. 426; 49 L. J. Bk. 69; 
 
 42 L. T. 805, 893 ; 28 AV. E. 763, 929 . . . 295, 299 
 Selby V. Jackson (1843) 6 Beav. 192 ; 13 L. J. Bk. 249 . 87 
 Seligm'an r. Le Boutillier (1866) L. E. 1 C. P. 681 . . . 291 
 Selsey (Lord) v. Ehoades (1824) 2 Sim. & St. 41 ; 1 Bli. 1 . 571 
 Seton V. Slade (1802) 7 A^es. 265 ; 2 A\'h. & T. L. C. 501 . . 463 
 Sewell V. Eoyal Exchange Assurance Co. (1813) 4 Taunt. 856 . 330 
 Shadwell v. Shadwell (1860) 9 C. B. N. S. 159; 30 L. J. C. P. 
 
 145; 3 L. T. 628; 7 Jur. N. S. 311 ; 9 AV. E. 163 . . 178 
 Shand v. Du Buisson (1874) 18 Eq. 283; 43 L. J. Ch. 508; 
 
 22 A\^ E. 483 651 
 
 Shardlow^t. Cotterell (1881) 20 Ch. Div. 90; 51 L. J. Ch. 
 
 353; 45L. T. 572; 30AV. E. 143 162 
 
 Sharman v. Brandt (1871) L. E. 6 Q. B. 720; 40 L. J. Q. B. 
 
 312; 19AV. E. 936 109,242 
 
 Sharp V. Leach (1862) 31 Beav. 491 ; 10 AA'. E. 878 . . 570 
 Sharp V. Taylor (1849) 2 Ph. 801 . . . 283, 330, 334 
 
 Sharpe v. Foy (1868) 4 Ch. 35 ; 19 L. T. 541 ; 17 AV. E. (w . 615
 
 Ixxvi TABLE OF CASKS. 
 
 PAOIS 
 
 Sharpies y. Adams (1863) 32 Beav. 213 211 
 
 Sharpley v. Louth and East Coast Hy. Co. (1876) 2 Ch. Div. 
 
 663; 46 L. J. Ch. 2 J9 ; 3,5 L. T. 71 537 
 
 Shattock V. Shattock (1866) 35 Beav. 489; 2 Eq. 182; 35 L. J. 
 
 Ch. 509; 14L.T.452; 12 Jur. N. S. 405; 14 W. E. 600 . 647, 651 
 Shaw's Claim (1875) 10 Ch. 177; 44 L. J. Ch. 670; 33 L. T. 5; 
 
 23 W. E. 813 260 
 
 Shaw V. Foster (1872) L. E. 5 H. L. 321 ; 42 L. J. Ch. 49; 
 
 27 L. T. 281 ; 20 W. E. 907 198 
 
 Shaw V. Jeffery (1860) 13 Moo. P. C. 432 . . . . 241 
 Shaw V. Thackray (1853) 1 Sm. & G. 537 ; 17 Jur. 1045 . 91 
 Shaw V. Woodcock (1827) 7 B. & C. 73 . . . 555, 609 
 Sheffield Nickel Co. v. Uuwin (1877) 2 Q. B. D. 214; 46 L. J. 
 
 Q. B. 299 ; 36 L. T. 246 ; 25 W. E. 493 . . . . 543 
 Sheppardv. Oxenford (1855) 1 K. & J. 491; 25 L. T. 90; 
 
 3 AV. E. 397 334 
 
 Ship's Case (1865) 2 D. J. S. 544; L. E. 3 H. L. 343; 12 
 
 L. T. 256 ; 11 Jur. N. S. 331 ; 15 W. E. 599 . . . 432 
 Shrewsbury (Earl of) v. N. Staffordshire Ey. Co. (1865) 1 Eq. 
 593; 35 L. J. Ch. 156 ; 13 L. T. 648; 12 Jur. N. S. 63; 14 
 
 W. E. 220 286 
 
 Shrewsbury & Birm. Ey. Co. v. L. & N. W. Ey. Co. (1853) 
 
 4 D. M. G. 115; 6 H. L. C. 113; 22 L. J. Ch. 682 ; 26 ib. 
 482; 17 Jur. 845; 3 Jur. N. S. 775 . . 656, 659, 670 
 
 Shueyv. United States (1875) 2 Otto (92 U. S.) 73 . 20,22 
 
 Shulter's Case (1611) 12 Co. Eep. 90 413 
 
 Sidenham v. Worlington (1595) 2 Leon. 224 . . . 170 
 Silber Light Co. v. Silber (1879) 12 Ch. D. 717 ; 48 L. J. 
 
 Ch. 385; 40L. T. 96; 27 W. E. 427 664 
 
 Sillem V. Thornton (1854) 3 E. & B. 868; 2 C. L. E. 1710; 
 
 23 L. J. Q. B. 362 ; 18 Jur. 748 492 
 
 SiUiman v. United States (1879) 11 Otto (101 U. S.) 465 . 554 
 
 Simons v. G. W. Ey. Co. (1857) 2 C. B. N. S. 620 . . 415 
 Simons v. Patchett (1857) 7 E. & B. 568; 26 L. J. Q. B. 195; 
 
 3 Jur. N. S. 742 106 
 
 Simpson i'. Denison (1852) 10 Ha. 51 662 
 
 Simpson v. Egginton (1855) 10 Ex. 844; 24 L. J. Ex. 312 . 424 
 Simpson v. Lamb (1857) 7 E. & B. 84; 20 L. J. Q. B. 121 ; 
 
 3 Jur. N. S. 412 295, 298 
 
 Simpson v. Lord liowden (1837) 3 My. & Cr. 97 . . . 262 
 Simpson v. Lord Ilowdcn (1839) 2 P. & J). 714 ; 10 A. & E. 
 
 793; 9 CI. & Fin. 61 ; 3 Eailw. Ca. 294 . . . .286 
 Simpson v. AVcstminster Palace Hotel Co. (1860) 2 I). F. J. 
 
 141 ; 8 H. L. C. 712 ; 6 Jur. N. S. 985 . . . . 656 
 
 Sims V. Bond (1833) 5 B. & Ad. 389; 2 N. & M. 608 . . 101 
 
 Sismey v. Eloy (1849) 17 Sim. 1 ; 18 L. J. Ch. 350; 13 Jur. 480 . 263 
 
 Skeatev.Bcale(1840)llA.&E.983; 3P.&D.597; 4 Jur. 766. 554 
 Skeet V. Lindsay (1877) 2 Ex. D. 314; 46 L. J. Ex. 249; 36 
 
 L. T. 98 ; 25 W. E. 322 601 
 
 Skidmorc v. Bradford (1869) 8 Eq. 134 ; 17 W. E. 1056 . 694 
 
 Skilbock V. Hilton (1S66) 2 Eq. 587 ; 14 W. E. 1017 . 462, 543 
 Skillott V. Fletcher (1866) L. E. 1 C. P. 217 ; 2 ib. 469 ; 36 
 
 L. J. C. P. 206; 16 L. T. 426; 15 W. E. 876 . . . 242
 
 TABLE OF CASES. Ixxvil 
 
 PAGE 
 
 Skottowe V. Williams (18G1) ;} D. F. J. o6'o ; ;j L. T. 07G; 7 
 
 Jur. N. S. 118 oJO 
 
 Skyring v. Gieonwood (182j) 4 13. & C. 281 ; 1 0. & P. j 17; 
 
 G D. & E. 401 409 
 
 Slade's Case (luOG) 4 Co. Eep. Ola 144 
 
 Slark V. Higligato Arckway Co. (1814) 5 Taunt. 792 . 219, Go7 
 Slator V. Brady (18G3) 14 Ir. C. L. Gl . , . . do, 78 
 Slator V. Trimble (18G1) 14 Ir. C. L. 342 . . . .59 
 Slim V. Crouckcr (18GU) 1 D. F. J. 518 ; 29 L. J. Ch. 27:3; 
 
 1 L. T. 39G ; G Jur. N. S. 189 ; 8 W. E. 233 . 51G, 517, G99 
 Sloman v. Walter (1784) 2 Wk. & T. L. C. 1112; 1 ]3ro. 
 
 C. 0. 418 4G7 
 
 Smart v. West Ham Union (1855) 10 Ex. 8G7; 11 ib. 8G7 ; 
 
 3 C. L. E. 696 ; 24 L. J. Ex. 201; 25 ib. 210 . . . 153 
 Smetkurst v. Mitckell (1859) 1 E. & E. 022; 28 L. J. Q. B. 
 
 241; 5 Jur. N. S. 978 ; 7 W. E. 74 102 
 
 Smitk's Case (1867) 2 Ck. 604 . . . 509, 517, 529, 533 
 
 Smitk's Case (18G9) 4 Ck. 611 ; 38 L. J. Ck. 681; 21 L. T. 
 
 97; 17 W. E. 941 616 
 
 Smitk V. Anderson (1880) 15 Ck. Div. 247; 50 L. J. Ck. 39; 
 
 43L. T. 329; 29 W. E. 21 G83 
 
 Smitk V. Bromley (1760) 2 Doug. 696, n 336 
 
 Smitk V. Brown (1871) L. E. 6 Q. B. 729; 40 L. J. Q. B. 
 
 214; 24 L. T. 808; 19 W. E. 1165 523 
 
 Smitk V. Cartwrigkt (1851) 6 Ex. 927 ; 20 L. J. Ex. 401 . 153 
 Smitk V. Ckadwick (1884) 20 Ck. Div. 27 ; 9 App. Ca. 187 ; 
 
 51 L. J. Ck. 597; 46 L. T. 702; 38 W. E. 661 . . 524, 528 
 
 Smitk V. Clarke (1806) 12 Ves. 483 518 
 
 Smitk V. Cuff (1817) G M. & S. 160 336 
 
 Smitk V. Eggington (1874) L. E. 9 C. P. 145; 43 L. J. C. P. 
 
 140; 30 L. T. 521 224 
 
 Smitk V. Hugkes (1871) L. E. 6 Q. B. 597; 40 L. J. Q. B. 
 
 221; 25 L. T. 329; 19 W. E. 1059 . 412, 438, 439, 447, 514, 527 
 Smitk V. Iliffe (1875) 20 Eq. 666; 44 L. J. Ck. 755; 33 L. T. 
 
 200; 23 W. E. 851 476 
 
 Smitk V. Kay (1859) 7 H. L. C. 750 . 524, 528, 557, 558, 570, 573 
 Smitk V. Land and- House Property Corporation (1884) 28 
 
 Ck. Div. 7 ; 49 L. T. 532 502 
 
 Smitk V. Lindo (1858) 4 C. B. N. S. 395; 5 ib. 587 ; 27 L. J. 
 
 C. P. 196, 335; 4 Jur. N. S. 974 . . . . 257, 683 
 Smitk i;.Lucas(1881)18Ck.Div.531; 45L.T.460; 36W.E.451 . 58 
 Smitk V. Mawkood (1845) 14 M. & W. 452; 15 L. J. Ex. 149 . 257 
 Smitk V. Neale (1857) 2 C. B. N. S. 67; 26 L. J. C. P. 143; 
 
 3 Jiu-. N. S. 516 161, 162 
 
 Smitk ('. Walton (1877) 3 C. P. D. 109 ; 47 L. J. M. C. 45 ; 
 
 37 L. T. 437 686 
 
 Smitk V. Webster (1876) 3 Ck. Div. 49 ; 45 L. J. Ck. 528 ; 
 
 35L. T. 44; 24 W. E. 894 39 
 
 Smitk V. Wkeatcroft (1878) 9 Ck. D. 223; 47 L. J. Ck. 745; 
 
 39 L. T. 103; 27 AV. E. 42 420 
 
 Smitk V. Wkite (1866) 1 Eq. 626; 35 L. J. Ck. 454; 14 L. T. 
 
 350; 14 AV. E. 510 323 
 
 Smout V. Ilbery (1842) 10 M. & W. 1 516
 
 Ixxviii TABLE OF CASES. 
 
 PAGE 
 Smurthwaite V. Wilkins (1862) 11 C. B. N. S. 842 ; 31 L. J. 
 
 C. P. 214; o L. T. 842; 10 W. E. 38(3 227 
 
 Smyth V. Griffin (1842) 13 Sim. 245; 14 L. J. Ch. 28 . . 262 
 Society of Practical Kuowledge v. Abbott (1840) 2 Beav. 
 
 559 117, 118 
 
 Sommersett's Case (1771-2) 20 St. T. 1 . . . 319, 340 
 Sottomayor v. De Barros (1877) 3 P. Div. 1 ; 5 P. D. 94 ; 47 
 
 L. J. P. 23; 37 L. T. 415; 26 W. E. 455 . . . . 250 
 Souch V. Strawbridge (1846) 2 0. B. 808; 15 L. J. C. P. 170; 
 
 lOJur. 357 611 
 
 South of Ireland Colliery Co. v. Waddle (1868) L. R. 3 C. P. 
 
 463; 4 C. P. 617; 38 L. J. C. P. 338; 17 W. R. 896 . . 149 
 South Wales Ey. Co. v. Eedmond (1861) 10 0. B. N. S. 675; 
 
 4 L. T. 619; 9 W. E. 806 659 
 
 South Yorkshire, &c. Co. v. G. N. Ey. Co. (1853) 9 Ex. 55 ; 
 
 22 L. J. Ex. 305 657, 662 
 
 Southall V. Eigg (1851) 11 C. B. 481 ; 20 L. J. C. P. 145; 
 
 15 Jur. 706 409, 584 
 
 Southampton, Lord, v. Brown (1827) 6 B. & C. 718 . 98, 200 
 
 Southey v. Sherwood (1817) 2 Mer. 435 269 
 
 Southwell V. Bowditch (1876) 1 C. P. Div. 100, 374; 45 L. J. 
 
 C. P. 374, 630; 35 L. T. 196; 24 W. E. 275, 838 . . 99 
 Spackmanv.Evans(1868)L.E.3 H.L. 171; 34 L. J. Ch. 321 . 668 
 Sparenburgh v. Bannatyne(1797) 1 B. & P. 163; 2 Esp. 580 . 280 
 Sparling v. Brereton (1866) 2 Eq. 64; 35 L. J. Ch. 461 ; 14 
 
 L. T. 166; 12 Jur. N. S. 330 622 
 
 Spears v. Hartly (1800) 3 Esp. 81 600 
 
 Spedding('.Nevell(lS69)L.E.4C. P.212; 38L. J. C. P. 133 . 106 
 Spence v. Chodwick(1847) 10 Q. B. 517; 16 L. J. Q. B. 313; 
 
 11 Jur. 872 362 
 
 Spencer's Case (1583) 1 Sm. L. 0. 60; 5 Coke, 16 . . 224 
 
 Spencer v. Harding (1870) L. E. 5 C. P. 561; 39 L. J. C. P. 
 
 332; 23 L. T. 237; 19 W. E. 48 . . . . 13, 17, 19 
 Spiller V. Paris Skating Eink Co. (1878) 7 Ch. D. 368 ; 26 
 
 W. E. 456 107 
 
 SpHdt V. Bowles (1808) 10 East, 279 224 
 
 Sprott i'.UnitedStates(1874) 20 WaUace(Sup.Ct.U.S.)459 . 281,325 
 Sprj-e V. Porter (1856) 7 E. & B. 58 ; 26 L. J. Q. B. 64 ; 
 
 3 Jur. N. S. 330 293, 295, 296 
 
 Spurr V. Cass (1870) L. E. 5 Q. B. 656 ; 39 L. J. Q. B. 249 ; 
 
 23 L. T. 409 109, 204 
 
 Squire v. Whitton (1848) 1 H. L. C. 333; 12 Jur. 125 . 190, 494 
 Stafford (Mayor of) v. Till (1827) 4 Bing. 75; 12 Moore, 260 . 154 
 Stahlschmidt c. Lett (1853) 1 Sm. & G. 415 . . . . 600 
 Stanley v.Dowdeswell(l 874) L.E. IOC. P. 102; 23W.E. 389 . 39 
 Stanley v. Jones (1831) 7 Bing. 369 . . . 295, 296 
 
 Stanton V. Tattcrsall (1853) 1 Sm. & G. 529; 1 Jur. 967; 
 
 1 W. E. 502 440, 501 
 
 Stedman r. Hart (1854) Kay, 607; 23 L. J. Ch. 908; 18 
 
 Jur. 744 ; 2 W. E. 462 88 
 
 Steed V. Callcy (1836) 1 Keo. 620 570 
 
 Steele v. IJurmor (1815) 14 M. & W. 831 ; 4 Ex. 1 . . . 129
 
 TAHLK OF CASES. IxXH 
 
 IX 
 
 PAGE 
 
 Steele v. Williams (1853) 8 Ex. 625; 22 L. J. Ex. 225; 17 
 
 Jur. 464 .......... 555 
 
 Stephens v. Vcnablcs (1862) 30 Beav. 625 . . . . 212 
 
 Steny v. Clifton (1850) 9 C. B. 110 ; 19 L. J. C. P. 237; 14 
 
 Jur. 312 286 
 
 Stevens v. Bcnnin- (1854) 1 K. & J. 168 ; 6 D. M. G. 223 ; 
 
 24 L. J. Ch. 153 ; 1 Jnr. N. S. 74 . . . 189, 426 
 
 Stevens v. ]5iller (1883) 25 Cli. Div. 31; o6 L. J. Cli. 249; 
 
 50 L. T. 36 ; 32 W. E. 419 101 
 
 Stevens v. Goiuiey (1859) 7 C. B. N. S. 99 ; 1 F. & P. 498; 
 
 29 L. J. C. P. 1 ; 1 L. T. 33 ; 6 Jur. N. S. 147 . . . 256 
 Stevenson v. MacLean (1880) 5 Q. B. D. 346; 49 L. J. Q. B. 
 
 701 ; 42 L. T. 897 ; 28 W. E. 916 . . . . 26, 30 
 Stevenson v. Newnham (1853) 13 C. B. 285; 22 L. J. C. P. 
 
 110; 17 Jur. 600 • . . . 544 
 
 Stewart's Case (Agriculturists' Cattle Ins. Co.) (1866) 1 Ch. 
 
 511 ; 14 L. T. 841 ; 12 Jur. N. S. 611 ; 14 AV. E. 954 . 668 
 Stewart's Case (EussianVyksounsky Ironworks) (1866) 1 Ch. 
 
 574; 14 L. T. 817 432 
 
 Stewart v. AUiston (1815) 1 Mer. 26 432 
 
 Stewart v. Eddowes (1874) L. E. 9 C. P. 311; 43 L. J. C. P. 
 
 204 ; 30 L. T. 333 ; 22 W. E. 534 .. . 162, 451 
 
 Stewart v. Stewart (1839) 6 CI. & Pin. 911 . . . 407, 444 
 Stikeman v. Dawson (1847) 1 De G. & Sm. 90; 16 L. J. Ch. 
 
 205; 11 Jur. 214 74, 77 
 
 Stilwellr. Wilkins (1821) Jac. 280 574 
 
 Stockdale v. Onwhyn (1826) 5 B. & C. 173; 7 D. & E. 625; 
 
 2 C. & P. 163 269 
 
 Stocks V. Dobson (1853) 4 D. M. G. 11 ; 22 L. J. Ch. 884 ; 
 
 17 Jur. 539 210 
 
 Stone V. City and County Bank (1877) 3 C. P. Div. 282 ; 47 
 
 L. J. C. P. 681 ; 38 L. T. 9 546 
 
 Stone r. Godfrey (1854) 5 D. M. G. 76; 22 L. T. 208; 18 
 
 Jur. 162, 524; 2 W. E. 118 407 
 
 Stonor's Trusts, lie (1883) 24 Ch. D. 195; 52 L. J. Ch. 776; 
 
 48 L. T. 963 85 
 
 Storey v. Waddle (1879) 4 Q. B. Div. 289; 27 W. E. 833 . 450, 478, 552 
 Storm V. Stirling (1854) 3 E. & B. 832; 23 L. J. U. B. 298; 
 
 17 Jur. 788 ; S. C. suh nom. Cowie v. Stirling, 6 E. & B. 
 
 333 ; 25 L. J. Q. B. 335 ; 2 Jur. N. S. 663 . . . . 205 
 Strange v. Brennan (1846) 15 Sim. 346; 2 C. P. Cooper {temjj. 
 
 Cottenham) 1 ; 15 L. J. Ch. 389 ; 10 Jur. 049 . 295, 297 
 
 Stray v. Eussell (1859) 1 E. & E. 888 ; 28 L. J. Q. B. 279; 
 
 29 ib. 115; 6 Jur. N. S. 168 ; 8 W. E. 240 . . . . 357 
 
 Street v. Bhiy (1831) 2 B. & Ad. 456 428 
 
 Street v. Eigby (1802) 6 Yes. 815 291 
 
 Stribley u. Imperial Marine Insurance Co. (1876) 1 Q. B. D. 
 
 507 ; 45 L. J. Q. B. 390 ; 34 L. T. 281 ; 24 W. E. 701 . 490 
 Strickland v. Turner (1852) 7 Ex. 208; 22 L. J. Ex. 115 . 442 
 Stubbs IK Holywell Ey. Co. (1867) L. E. 2 Ex. 311; 36 L. J. 
 
 Ex. 166 ; 15 W. E. 869 379 
 
 Stump V. Gaby (1852) 2 D. M. G. 623; 22 L. J. Ch. 352; 20 
 
 L. T. 0. S. 213; 17 Jur. 5; 1 W. E. 85 . . . . 595
 
 IXXX TAHLE OF CASES, 
 
 PAGE 
 Sturge V. Starr (1833) 2 My. & K. 19,5 .... 529 
 
 Sturge V. Sturge (18-19) 12 Bcav. 229; 19 L. J. Ch. 17 ; 1-1 
 
 Jur. 159 . . . . . . . . . . 574 
 
 Sturlyn v. Albany (1588) Cro. Eliz. G7 . . . .172 
 
 SuUivan v. Mitcalfe (1880) 5 C. P. Div. 455; 49 L. J. C. P. 
 
 815; 44L. T. 8; 29 W. R. 181 510 
 
 Summers v. Griffiths (18G6) 35 Beav. 27 . . . .573 
 Surcome v. Phiniger (1853) 3 D. M. G. 571 ; 22 L. J. Ch. 419; 
 
 17 Jur. 196 613 
 
 Sussex Peerage Case (1844) 11 CI. & Fin. 85; 8 Jur. 793 . 251, 254 
 Suttou's Hospital Case (1612) 10 Co. Rep. 23 a . 653, 655, 660, 670 
 Swaisland v. Dearsley (1861) 29 Beav. 430 . . . . 500 
 Swan, i;,/;2;ffr;e(186S) 6 Eq. 344; 18 L. T. 230; 16 W. R. 560 . 221 
 Swan V. North British Australasian Co. (1863) 2 H. & C. 184; 
 
 31 L. J. Ex. 425; 32 ib. 273; 10 Jur. N. S. 102; 11 W. R. 
 
 862 218, 414, 415 
 
 Swansea Friendly Society, Ex parte (1879) 11 Ch. D. 768; 
 
 48 L. J. Ch. 577; 27 W. R. 596 114 
 
 Sweet V. Lee (1841) 3 M. & Gr. 452; 4 Scott, N. R. 77 . . 609 
 Swift V. Jewsbury (1874) h. R. 9 Q. B. 301, 560 . . . 531 
 Swift V. Kelly (1835) 3 Knapp, P. C. 257 . . 511, 519 
 
 Swift V. Swift (1865) 34 L. J. Ch. 209, 394 ; 11 L. T. 697 ; 
 
 12 ib. 435; 11 Jur. N. S. 458; 13 W. R. 731 . . . 305 
 
 Swift V. Tyson (1842) 16 Peters, 1 218 
 
 Swift V. Winterbotham (1873) L. R. 8 Q. B. 244 ; 42 L. J. 
 
 Q. B. Ill; 28L. T.339; 21 W. R. 562; 17 Sol. J. 341, 592 . 533 
 Swindon Waterworks Co. v. Wilts and Berks Canal Naviga- 
 tion Co. (1875) L. R. 7 H. L. 697; 45 L. J. Ch. 638 ; 33 
 
 L. T. 513; 24 W. R. 284 124 
 
 Swire v. Francis (1877) 3 App. Ca. 106; 47 L. J. P. C. 18 ; 
 
 37 L. T. 554 531 
 
 Swire i'.Redman(1876)lQ.B.D.536; 35L.T.470; 24W.R.1069. 243 
 Sykes v. Beadon (1879) 11 Ch. D. 170; 48 L. J. Ch. 522; 40 
 
 L. T. 243; 27 W. R. 464 235, 683 
 
 Sykes v. Chadwick (1873) 18 Wallace (Sup. Ct. U. S.) 141 . 173 
 Symesv.Hughes(1870)9Eci.475; 39L. J.Ch.304; 22L.T.462 . 336 
 
 Taite v. Gosling (1879) 11 Ch. D. 273; 48 L. J. Ch. 397; 40 
 
 L. T. 251 ; 27 W. R. 394 225 
 
 Talbot V. Staniforth (1861) 1 J. & H. 484; 9 W. R. 827 . . 569 
 Tamplinc.James(1880)15Ch.Div.215;43L.T.520..432,435,436,575 
 Tappendcn v. Randall (1801) 2 B. & P. N. R. 467 . . 335 
 
 Tasker v. Small (1837) 3 My. & Cr. 63 193 
 
 Tate?;. Williamson (1866) lEq. 528; 2 Ch. oo; 15 L. T. 549; 
 
 15 W. R. 321 559, 566, 571 
 
 Tayloo v. Merchants' Fire Insurance Co. ( 1 850) 9 Ho w. S. C. 390 . 642 
 Taylor, Kx parte (1856) 8 D. M. G. 254 .. . 60, 63 
 Taylor r. Ashton(1813) 11 M.& AV.401; 12 L. J.Ex.3G3. 515,516 
 Taylor v. Bowers (1876) 1 Q. B. Div. 291 ; 46 L. J. Q. B. 39; 
 
 34L. T. 93S; 24 W. R. 199 . 335 
 
 Taylor r. Brewer (1813) 1 M. & S. 290 . . . .44
 
 TABLE OF CASES. IxXXl 
 
 PAGE 
 
 389 
 
 Taylor v. CakhveU (1803) 3 B. & S. 820 ; 32 L. J. Q. B. 104; 
 
 8 L. T. 350; 11 W. E. 720 . 302, 303, 307, 375, 378, 380, 
 Taylor v. Chester (1809) L. E. 4 Q. B. 309; 38 L. J. Q. B. 
 
 225; 21 L. T. 359 332 
 
 Taylor v. Chichester and Midhurst Ey. Co. (1807) L. E. 2 Ex. 
 
 350; 4H.L. 028; 39L. J.Ex.217; 23L.T. 057. 125,348,058,009 
 Taylor v. Cropland Gas Co. (1854) 10 Ex. 293; 2C.L. E. 1247; 
 
 23 L. J. Ex. 254; 18 Jur. 913 250 
 
 Taylor v. Jolmston (18S2) 19 Ch. D. 003; 51 L. J. Ch. 879 ; 
 
 40 L. T. 219; 30 W. E. 508 570 
 
 Taylor t'.Jones(1875)lC.P.D.87; 45L.J.C.P.110; 34L.T.131 . 043 
 
 Taylor i\Lendey (1807) 9 East, 49 334 
 
 Taylor v. Manners (1805) 1 Ch. 48 ; 35 L. J. Ch. 128; 13 
 
 L. T. 388; 11 Jur. N. S. 980; 14 W. E. 154 ... 174 
 
 Taylor v. Meads (1805) 4 D. J. S. 597 ; 34 L. J. Ch. 203; 11 
 
 Jur. N. S. 100 ; 13 W. E. 394 040 
 
 Taylor v. Parry (1840) 1 M. & Gr. 004; 1 Scott, N. E. 570 . 193 
 Taylor v. Portington (1855) 7 D. M. & G. 328 ; 3 Eq. 781; 
 
 1 Jnr. N. S. 1057 43 
 
 Taylor r. Pugh (1842) 1 Ha. 008 248 
 
 Tenant v. Elliott (1797) 1 Bos. & P. N. E. 3 . . . . 334 
 Tennent v. City of Glasgow Bank (1879) 4 Ajap. Ca. 015; 
 
 40 L. T. 094 ; 27 W. E. 094 547 
 
 Tennent v. Tennents (1870) L. E. 2 Sc. & D. , . . 573 
 " Teutonia," The (1872) L. E. 4 P. C. 171 ; 8 Moo. P. C. C. 
 
 N. S. 411 ; 41 L. J. Adm. 57; 20 L. T. 48; 20 W. E. 421 . 374 
 Texas v. White (1808) 7 Wallace (Sup. Ct. U. S.) 700 . . 281 
 
 Thacker v. Key (1809) 8 Eq. 408 310 
 
 Thames Haven, &c. Co. v. Hall (1843) 5 M. & Gr. 274 ; 
 
 Scott, N. E. 342 ; 3 Eailw. Ca. 441; 7 Jur. 238 . . . 153 
 Thiedemann v. Goldschmidt (1859) 1 D. F. J. 4; 1 L. T. 50; 
 
 8 W. E. 14 218 
 
 Thiis V. Byers (1870) 1 Q. B. D. 244; 45 L. J. Q. B. 511; 
 
 34L. T. 520; 24 W.E. Oil 300 
 
 Thomas v. Brown (1870) 1 Q. B. D. 714; 45 L. J. Q. B. 811; 
 
 35 L. T. 237 ; 24 W. E. 821 009 
 
 Thomas v. Davis (1757) 1 Dick. 301 401 
 
 Thompsons. Hudson (1809)L. E.4H. L. 1; 38 L. J. Ch.431 . 400 
 Thompson /'.PlanetBenefitBmldingSociety(1873) loEq. 333 . 292 
 Thompson v. Powles (1828) 2 Sim. 194 .... 281 
 
 Thom]ison v. Universal Salvage Co. (1848) 1 Ex. 094; 5 
 
 D. & L. 380; 17 L. J. Ex. 118 129 
 
 Thompson v. ^Tiitmore (1800) 1 J. & H. 208 . . 474, 477 
 Thomson v. Davenport (1829) 2 Sm. L. C. 377; 9 B. & C. 78 . 97 
 Thomson r. Eastwood (1877) 2 App. Ca. 215 . . .551 
 Thomson r. Weems (1884) 9 App. Ca. 071 . . . . 491 
 Thorn ^■. Mayor of London (187e)L. E. 9 Ex. 103; 10 ib. 112; 
 
 1 App. Ca.l20; 45L. J.Ex.4S7; 34L. T. 545; 24 W.E. 932 . 301 
 Thornborow v. Whitacre (1700) 2 Ld. EajTn. 1104 . .353 
 Thornton v. Hlingworth (1824) 2 B. & C. 824; 4 D. & E. 545 . 54 
 Thornton v. Kempster (1814) 5 Taunt. 780 . . . . 434 
 Thoroughgood's Case (1581-2) 2 Co. Eep. 9 b . 413, 410, 417
 
 Ixxxii TABLE OF CASES. 
 
 Thm-sbj' V. Plant (1GG8) 1 Wms. Saund. 277; 1 Lov. 2o9; 
 
 1 Sid. 401; 1 Vent. 10; 2 Keb. 439 224 
 
 Tichener, Re (1865) 35 Beav. 317 208 
 
 Tilley V. Thomas (1SG7) 3 Ch. 61 ; 17 L. T. 422 ; 16 W. E. 
 
 166; 12 Sol. J. 420 463 
 
 Toker ('.Toker(1863)31Beav.629; 3D.J.S.487; 32L.J.Cli.322 . 563 
 Tophamf. Morecraft(185S) 8 E. & B. 972; 4 Jur. N. S. 611 . 633 
 Torrance v. Bolton (1872) 8 Ch. 118; 42 L. J. Ch. 177; 27 
 
 L. T. 738; 21 W. E. 134 . . 440,441,498,501,502 
 
 Torrev.Torre(1853)lSm.&G.518; 21L.T.O.S.71; IW.E.490. 476 
 Tottenham v. Emmet (1865) 12 L. T. 838; 14 W. E. 3 . . 580 
 Tottenham r.Green(1863)lN'.E. 466; 32L.J.Ch.201 . 587,588,594 
 Totterdell v. Fareham Brick Co. (1866) L. E. 1 C. P. 674; 35 
 
 L. J. C. P. 278; 12 Jur. N. S. 901; 14 W. E. 919 . . 665 
 Touche V. Metropolitan Ey. Warehousing Co. (1871) 6 Ch. 
 
 671; 40 L. J. Ch. 496 203 
 
 Townsend's Case (1871) 13 Eq. 148; 41 L. J. Ch. 198; 25 
 
 L. T. 692; 20 W. E. 164 641 
 
 Townsend v. Crowdv (1860)8 C. B. N. S. 477; 29 L. J. C. P. 
 
 300; 2 L. T. 537; 7 Jur. N. S. 71 405 
 
 Townshend v. Stangrooni (1801) 6 Ves. 328 . . 468, 473 
 
 Traill v. Baring (1864) 4 D. J. S. 318 ; 3 N. E. 681 ; 10 L. T. 
 
 215; 10 Jur. N. S. 377; 12 W. E. 678 . . . 528, 697 
 Trigge v. Lavallee (1864) 15 Moo. P. C. 270; 8 L. T. 154; 
 
 9 Jur. N. S. 261; 11 W. E. 404 182 
 
 Trimble v. Hill (1879) 5 App. Ca. 342; 49 L. J. P. C. 49; 
 
 42 L. T. 103; 28 W. E. 479 . . . . 259,335,685 
 Trist V. Child (1874) 21 Wall. (Sup. Ct. U. S.) 441 . . 285 
 Truemani;. Loder (1840) 11 A. & E. 589; 3 P. &D. 567 . 96 
 Trumper v. Trumper (1873) 14 Eq. 295 ; 8 Ch. 870; 42 L. J. 
 
 Ch. 641; 29L. T. 86; 21 W. E. 692 245 
 
 Tulk r. Moxhay (1848) 2 Ph. 774 229 
 
 TuUett V. Armstrong (1838) 4 My. & Cr. 393; 1 Beav. 1 . 648 
 Turner v. Collins (1871) 7 Ch. 329; 41 L. J. Ch. 558; 25 
 
 L. T. 779; 20 W. E. 305 ... . 477, 559, 595 
 
 Turner r. Harvey (1821) Jac. 169 447 
 
 Turner v. Eeynall (1863) 14 C. B. N. S. 328 ; 32 L. J. C. P. 
 
 164; 8 L. t. 281; 9 Jur. N. S. 1077; 11 W. E. 700 . . 624 
 Tweddell v. Twoddell (1822) Turn. »fe E. 1 . . . .568 
 Tweddlo v. Atkinson (1861) 1 B. & S. 393; 30 L. J. Q. B. 
 
 265; 4 L. T. 468; 8 Jur. N. S. 332; 9 W. E. 781 . . . 201 
 Twisleton v. Griffith (1716) 1 P. Wms. 309; 2 Eq. Ca. Ab. 510 . 581 
 Two Sicilies, King of, v. Wilcox (1850) 1 Sim. N. S. 334; 
 
 19 L. J. Ch. 488; 14 Jur. 751 116 
 
 Twycross v. Grant (1877) 2 C. P. Div. 469; 46 L. J. C. P. 
 
 646; 36 L. T. 812; 25 W. E. 701 510 
 
 Tyler v. Yates (1871) 11 Eq. 265; 6 Ch. 665 ; 40 L. J. Ch. 
 
 768; 25 L. T. 284; 19 W. E. 909 ... . 584, 585 
 
 Udell V. Atherton (1861) 7 II. & N. 172; 30 L. J. Ex. 337; 
 
 4L. T. 797; 7 Jur. N. S. 777 512 
 
 TJnderhill v. llorwood (1804) 10 Yes. 209 . . . .573
 
 TABLE OF CASES. Ixxxiil 
 
 PAOK 
 
 Underwood v. Ilitclicox (17-li)) 1 Vos. sen. 279 . . . 577 
 Ung-ley v. Ungley (1877) o Ch. Div. 887; 4G L. J. Ch. 854; 
 
 37 L. T. 52; 25 W. E. 7;3;:i 5;JG, 611 
 
 Unity Bank, Ex jmrte (1858) 3 Do G. & J. 63; 27 L. J. lik. 
 
 33; 4 Jur.N. S. 1257 78 
 
 Universal Life Assurance Co., Ex jmrte (1870) 10 Eq.458; 39 
 
 L. J. Ch. 829; 23 L. T. 639; 18 W. E. 1082 . . .215 
 Upporton V. Nickolson (1871) 6 Ch. 436; 40 L. J. Ch. 401 ; 
 
 25L. T. 4; 19 W. E. 733 4(;5 
 
 Urquhart v. Macpherson (1878) 3 App. Ca. 831 . . . 543 
 
 Vallance v. Blagden (1884) 26 Ch. D. 353; 50 L. T. 474; 
 
 32 W. E. 918 263 
 
 Vansittart r. Vansittart (1858) 4 K. & J. 62 ; 2 De G. & J. 
 
 249; 27 L. J. Ch. 222, 289; 4 Jur. N. S. 276, 519 . 83, 265, 305 
 Vaughan v. Thomas (1783) 1 Bro. C. C. 556 ... 578 
 
 Vaughan v. Vanderstegen (1853) 2 Drew. 165; 2 W. E. 293 . 647 
 Vaughan v. Walker (1857) 6 Ir. Ch. 471 ; 8 ih. 458 . . 652 
 Veitch v. Eussell (1842) 3 Q. B. 928; 3 G. & D. 198 ; Car. & 
 
 M. 362; 11 L. J. U. B. 286; 12 ib. 13; 7 Jur. 60 . 623, 626 
 Vernon i'. Keys (1810) 12 East, 632 ; 4 Taimt. 488 . 522, 523 
 
 Vigors V. Pike (1840-2) 8 CI. & F. 562 543 
 
 Voisey, Ex parte (1882) 21 Ch. Div. 442; 52 L. J. Ch. 121 ; 
 
 47 L. T. 362 ; 31 W. E. 19 255 
 
 Vorley V. Cooke (1857) 1 Giff. 230; 27 L. J. Ch. 185; 30 
 
 L. T. 0. S. 146 ; 4 Jur. N. S. 3 416 
 
 W. V. B. (1863) 32 Beav. 574 338 
 
 WaddeU i\ Blockev (1879) 4 Q. B. Div. 678 ; 48 L. J. Q. B. 
 
 517 ; 41 L. T. 458 ; 27 W. E. 938 543 
 
 Wain V. Warlters (1804) 5 East, 10 ; 1 Sm. L. C. 299 . . 162 
 Waitev.Jones(1835)lBing.N.C.656; lScott,730; lHodges,166 321 
 Wake V. Harrop (1861-2) 6 H. & N. 768; 30 L. J. Ex. 273; 
 
 4 L. T. 555; 7 Jur. N. S. 710; 9 W. E. 788; affirmed, 
 
 1 11. et' C. 202 ; 31 L. J. Ex. 451 ; 8 Jur. N. S. 845 . . 458 
 Wakefield v. Newbon (1844) 6 Q. B. 276; 13 L. J. Q. B. 258; 
 
 8 Jur. 735 .......... bob 
 
 Waldy V. Gray (1875) 20 Eq. 238; 44 L. J. Ch. 394; 31 L. T. 
 
 531 ; 23 W. E. 676 398 
 
 Walford v. Duchess of Pienne (1796) 2 Esp. 554 . . . 82 
 Walker v. Perkins (1764) 3 Burr. 1568 ; 1 W. Bl. 517 . 262 
 
 Walker v. Smith (1861) 29 Beav. 394 560 
 
 WairsCase(1872)15Eq. 18; 42L. J. Ch. 372; 17Sol.J.782. 642 
 Wallace v. Wallace (1842) 2 Dr. & W. 452 . . . . 569 
 WalUs V. Day (1837) 2 M. & W. 273; Mur. & H. 222; 1 Jur. 
 
 73 316, 319 
 
 WaUis V. Smith (1882) 21 Ch. Div. 243 ; 52 L. J. Ch. 145 ; 
 
 47 L. T. 389 ; 31 W. E. 214 . . . . 459, 467 
 
 Walsh V. Bishop of Lincoln (1875) L. E. 10 C. P. 518 ; 44 
 
 L. J. C. P. 244 ; 32 L. T. 471 ; 23 W. E. 829 . . .684 
 
 /2
 
 Ixxxiv TA15LE OF CASES. 
 
 PAGE 
 
 Ward V. Bank of New Zealand (1883) 8 App. Ca. 755 ; 52 
 
 L. J. P. C. 65; 49L. T. 315 243 
 
 Warden v. Jones (1857) 2 Do G. & J. 7G; 27 L. J. Ch. 190 ; 
 
 4 Jur. N. S. 269 614, 615 
 
 Waring's Case (1815) 19 Ves. 344 197 
 
 Warlow V. Harrison (1858-9) 1 E. & E. 295, 309 ; 28 L. J. 
 
 Q, B. 18; 29 ?■&. 14 15, 18 
 
 Warne v. Eoutledge (1874) 18 Eq. 497 ; 43 L. J. Ch. 604 ; 30 
 
 L. T. 857 ; 22 W. E. 750 650 
 
 Warner v. Willington (1856) 3 Drew. 523; 25 L. J. Ch. 662; 
 
 2 Jur. N. S. 433 46 
 
 Warrender v. Warrender (1835) 2 CI. & Fin. 488 . . . 265 
 Warriner v. Eogers (1873) 16 Eq. 340; 42 L. J. Ch. 581; 28 
 
 L. T. 863 ; 21 W. E. 766 185 
 
 Warwick v. Bruce (1813) 2 M. & S. 205; 6 Taunt. 118 . 54, 57 
 Warwick v. Eichardson (1842) 10 M. & W. 284 . . . 238 
 
 Wason V. Wareing (1852) 15 Boav. 151 409 
 
 Waterhouse v. Jamieson (1870) L. E. 2 Sc. & D. 29 . . 546 
 Watford and Eickmansworth Ey. Co. v. L. & N. W. Ey. Co. 
 
 (1869)8Eq.231; 38L. J. Ch.449; 21L.T.81; 17W.E.814 . 292 
 Watkins v. Eyniill (1883) 10 Q. B. D. 178; 52 L. J. Q. B. 
 
 121 ; 48 L. T. 426 ; 31 W. E. 337 ; 47 J. P. 357 . . 47 
 
 Watson. £';cj)nr!!e (1809) 16 Ves. 265 77 
 
 Watson V. Allcock (1853) 4 D. M. G. 242 ; 22 L. J. Ch. 858 ; 
 
 21 L. T. O. S. 204; 17 Jur. 568; 1 W. E. 399 . 174, 243 
 
 Watson V. Earl of Charleniont (1848) 12 Q. B. 856; 18 L. J. 
 
 Q. B. 65; 13 Jur. 117 528 
 
 Watson v.Marston( 1853) 4 D.M.G. 230; 1W.E.362 .468,576,577 
 Watson V. Mid- Wales Ey. Co. (1867) L. E. 2 C. P. 593; 30 
 
 T TCP '^85 212 
 
 Watts 'v. Porter (1854) 3 E. & B. 743 ; 2"c. L. E. 1553; 23 
 
 L. J. Q. B. 345; 1 Jur. N. S. 133 212 
 
 Waugh V. Morris (1873) L. E. 8 Q. B. 202 ; 42 L. J. Q. B. 
 
 57 ; 28 L. T. 265 ; 21 W. E. 438 . . 329, 330, 347, 348 
 Way's Trirsts (1864) 2 D. J. S. 365; 34 L. J. Ch. 49; 11 L. T. 
 
 495; 10 Jur. N. S. 1166; 13 W. E. 149 . . . . 564 
 Way V. East (1853) 2 Drew. 44; 2 Eq. 275; 23 L. J. Ch. 
 
 109 ; 22 L. T. 0. S. 192; 2 W. E. 114 . . . . 330 
 Way V. Hearn (1862) 11 C. B. N. S. 774; 13 ih. 292; 32 L. J. 
 
 C. P. 34 495, 534 
 
 Waymell v. Eeed (1794) 5 T. E. 599 282 
 
 Weaver, Re (1882) 21 Ch. Div. 615; 48 L. T. 93; 31 W. E. 
 
 224 ; 47 J. P. 68 88 
 
 Webb V. Herno Bay Commissioners (1870) L. E. 5 Q. B. 642; 
 
 39 L. J. Q. B. 221 ; 22 L. T. 745 ; 19 W. E. 241 . 131, 214, 216 
 
 Webb r. Hewitt (1857) 3 K. & J. 438 242 
 
 Webb V. Hughes (1870) 10 Eq. 281; 39 L. J. Ch. 606; 18 
 
 W. E. 749 464 
 
 Webb V. Whiffin (1872) L. E. 5 H. L. 711 ; 42 L. J. Ch. 161 . 223 
 Webster's Case (1866) 2 Eq. 741 ; 14 L. T. 728 . . . 432 
 
 Webster r. Cecil (1861) 30 Bcav. 62 J35 
 
 AVcbstorr.Cook(1867)2Ch.542; 16L. T. 821; 15W. E. 140, 585 
 Webster v. Do Tastot (1797) 7 T. E. 157 . . . . 306
 
 TABLE OF OASES. IxXXV 
 
 PAGE 
 
 "Wedgwood v. Adams (184;i) G Bcav. 000 . . . 577, 578 
 Weeks v. Proport (1873) L. E. 8 C. P. 427 ; 42 L. J. 0. P. 
 
 129; 21 W. R. (576 100 
 
 Weidner v. Iloggett (1870) 1 C. P. D. 533; 35 L. T. 308 . 100 
 Weir V. ]5arnett (1877) 3 Ex. D. 32 ; 20 W. E. 147 . . . 532 
 Weir V. BoU (1878) 3 Ex. Div. 32, 238; 47 L. J. Ex. 704; 
 
 38 L. T. 920; 20 AV. E. 147, 740 . . . 480, 530, 532 
 Weldou /'. Winwlow (1884) 13 (i. B. Div. 784 .. . 85 
 Wells V. Kingstou-Tipon-Hull (1875) L. E. 10 C. P. 402; 44 
 
 L. J. C. P. 257; 32 L. T. 015; 23 W. E. 502 . . 153, 100 
 Wells V. Malbon (1802) 31 Beav. 48; 31 L. J. Ch. 344; 
 
 L. T. 39; 8 Jur. N. S. 249; 10 W. E. 304 . . . . 84 
 Welman v. W^elman (1880) 15 Ch. D. 570 ; 49 L. J. Ch. 730; 
 
 43 L. T. 145 473 
 
 West London Commercial Bank v. Ivitson (1884) 12 Q. B. D. 
 
 157; 13 Q. B. Div. 300; 47 J. P. 824 . . . 108, 522 
 Western Bank of Scotland v. Addie (1807) L. E. 1 Sc. & D. 
 
 145 115,510,531,533,542 
 
 Western v. Eussell (1814) 3 Ves. & B. 187 . . . . 578 
 Westlake v. Adams (1858) 5 C. B. N. S. 248; 24 L. J. 0. P. 
 
 271; 4 Jur. N. S. 1021 172 
 
 Westmeath v. Salisbury (1831) 5 Bli. N. S. 339 . . 207, 268 
 Westmeath, Marquis of, v. Marchioness of Westmeath ( 1 820- 1 ) 
 
 1 Dow & CI. 519; 1 Jac. 120 .... 264, 265 
 Weston V. Metropolitan Asylum District (1882) 9 Q. B. Div. 
 
 404; 51 L. J.Q.B.-399; 40L. T. 580; 30 W.E. 023; 40 J. P. 504 . 407 
 Wharton v. Mackenzie (1844) D. & M. 545; 5 Q. B. 000; 
 
 13 L. J. Q. B. 130; 8 Jur. 400 68 
 
 Whatman ^\ Gibson (1838) 9 Sim. 190 229 
 
 Wheatley-v. Lane (1007) 1 Wms. Saund. 240 . . .200 
 
 Wheatley v. Sladc (1830) 4 Sim. 126 500 
 
 Wheelton v. Hardisty (1857) 8 E. & B. 232 ; 20 L. J. Q. B. 
 
 205; 27 ih. 241 ; 5 Jur. N. S. 14 . . 490, 491, 492, 530 
 
 Wheli^dale's Case (1605) 5 Co. Eep. 119 553 
 
 Whichcoto V. Lawrence (1798) 3 Ves. 739 .... 244 
 Wliincup V. Hughes (1871) L. E. 6 C. P. 78 ; 40 L. J. C. P. 
 
 104; 24 L. T. 74; 19 W. E. 439 379 
 
 Whitcomb v. Whiting (1781) Dougl. (fol. ed.) 652 . . 602 
 White I'. Bluett (1853) 2 C. L. E. 301; 23 L. J. Ex. 36 . . 176 
 White V. Cuddon (1842) 8 CI. & Fin. 766; 6 Jur. 471 . . 498 
 White *'. Damon (1802)7 Ves. 30, 34 . . . 577,578 
 White v. Garden (1851) 10 C. B. 919; 20 L. J. C. P. 166; 
 
 15 Jur. 630 512, 544 
 
 Whiter.White(1872)15Eq.247; 42L. J.Ch.288; 27L.T.752. 478 
 Whiteheadv.Anderson(1842)9M.&W. 518; 11 L. J.Ex. 157 . 401 
 Whittaker, Ex parte (1875) 10 Ch. 446 ; 44 L. J. Bk. 91 ; 32 
 
 L. T. 443; 23 W. E. 555 512 
 
 AVhittemore v. Whittemore (1869) 8 Eq. 603 . . . . 500 
 Widgery v. Tepper (1877) 5 Ch. D. 516; 7 Ch. Div. 423; 47 
 
 L. J. Ch. 550; 38 L. T. 434; 26 W. E. 546 .. . 80 
 Wilbv i'.Elgee(1875)L. E. 10 0. P. 497; 44 L. J. C. P. 254; 
 
 32 L. T. 310 182, 601
 
 IxXXvi TABLE OF CASES. 
 
 PAGE 
 
 Wild V. Harris (1849) 7 D. & L. 114 ; 7 C. B. 999 ; 18 L. J. 
 
 C. P. 297; 13 Jur. 961 107 
 
 Wilde V. Gibson (1848) 1 H. L. C. 605; 12 Jur. 527 . . 504 
 Wildes u.DudIow(1874)19Eq.l98; 44L.J.Ch.341; 23W.E.435. 159 
 Wilkinson v. Gibson (1867) 4 Eq. 162 ; 36 L. J. Ch. 646; 16 
 
 L. T. 733; 15 W. E. 983 84 
 
 Wilkinson i;.Lloyd(1845)7Q.B.27; 14L.J.Q.B.165; 9Jur.328. 357 
 Wilkinson r. Loudonsack (1814) 3 M. & S. 117 . . . 348 
 Willan V. Willan (1809-10) 16 Ves. 72; 2 Dow, 275 . . 454 
 Willesford i'. Watson (1873) 14 Eq. 572; 8 Ck 473; 42 L. J. 
 
 Ch. 447; 28L. T. 428; 21 W. E. 350 . . . 291,292 
 
 WilUams' Case (1869) 9 Eq. 225, n 520, 527 
 
 Williams, Ex parte (1877) 7 Ch. Div. 138 . . . . 255 
 WilHams v. Bayley (1866) L. E. 1 H. L. 200; 35 L. J. Ch. 
 
 Ch. 717; 14 L. T. 802; 12 Jur. N. S. 875 . . 288, 557, 572 
 WilHamsi'.Byrnes(1863)lMoo.P.C.C.N.S.154; SL.T.69 . 22,23,162 
 WilHams r. Carwardine (1833) 4 B. & Ad. 621; 5 C. & P. 
 
 566; IN. &M. 418 13, 19 
 
 Williams (Doe d.) v. Evans (1845) 1 C. B. 717; 14 L. J. C. P. 
 
 237; 9 Jur. 712 301 
 
 Williams v. Glenton (1866) 34 Beav. 528; 1 Ch. 200 . . 464 
 Williams i'. Hathawav( 1877) 6 Ch. D. 544 . . . . 108 
 
 Williams v.Hedley( 1807) 8 East, 378 337 
 
 Williams v. Jordan (1877) 6 Ch. D. 517; 46 L. J. Ch. 681; 26 
 
 W. E. 230 162 
 
 Williams r. Moor (1843) 11 M. & W. 256 ; 2 D. N. S. 993 ; 
 
 12 L. J. Ex. 253; 7 Jur. 817 58 
 
 Williams v. Owen (1840) 5 M. & Cr. 303 ; 12 L. J. Ch. 207 . 466 
 WiUiams v. Protheroe (1829) 5 Bing. 309 ; 2 M. & P. 779 ; 
 
 2 Y. & J. 129 300 
 
 Williams v. Wentworth( 1842) 5 Beav. 325 . . . . 88 
 Williams, app., Wheeler, resp. (1860) 8 C. B. N. S. 299 . 607 
 WiUiams v. WilHams (1866-7) 2 Ch. 294 ; 36 L. J. Ch. 200, 
 
 419; 16 L. T. 42; 15 W. E. 657 569 
 
 WilHamson, Ex parte (1869) 5 Ch. 309; 22 L. T. 284; 18 
 
 W. E. 388 661 
 
 WilHamson v. Gihon (1805) 2 Sch. & L. 357 . . . . 307 
 Willmgale v. Maitland (1866) 3 Eq. 103; 36 L. J. Ch. 64 . 200 
 Willis V. Thorp (1875) L. E. 10 Q. B. 383; 44 L. J. Q. B. 137; 
 
 33L. T. 11; 23 W. E. 730 686 
 
 Willison V. Patteson (1817) 7 Taunt. 439; 1 Moore, 133 . 280 
 Willmotti'. Barber (1881) 15 Ch. D. 96; 17 Ch. Div. 772; 
 
 45 L. T. 229 612 
 
 Wilson V. Hart (1866) 1 Ch. 463; 12 L. T. 798; 11 Jur. N. S. 
 
 735; 13 W. E. 988; affirming 2 H. & M. 551 . . . 226 
 WHson r. Lloyd (1873) 16 Eq. 60; 42 L. J. Ch. 559; 28 L. T. 
 
 331 ; 21 AV. E. 507 194 
 
 Wilson V. Eankin (1865) L. E. 1 Q. B. 162; 35 L. J. Q. B. 
 
 203; 13 L. T. 564 ; 11 Jur. N. S. 173; 14 W. E. 198 . 325 
 Wilson V. Eay ( 1 839) 10 A. & E. 82 ; 2 P. & D. 253; 3 Jur. 384 . 337 
 Wilson V. Strugncll (1881) 7 Q. B. D. 548; 50 L. J. M. C. 145 ; 
 
 45 L. T. 218 ; 45 J. P. 831 ; 14 Cox, C. C. 624 . . 289, 335
 
 TARLE OF CASES. IxXXV 
 
 :ii 
 
 PAGE 
 
 Wilson r. West ILvrlcpool Ey. Co. (l<S(;4-;3) 2 D. J. S. 47.3; 
 
 34 L. J. Ch. 241; 11 L. T. 092; 11 Jur. N. S. 124; 13 
 
 W. 11. 361 131, 661 
 
 Wilsonr.Wilson(18o4)lH. L. C. 538; 5?i.40 . 265,266,268,453 
 Wilton V. Chambers (1837) 7 A. & E. 524 . . . . 622 
 Winnt'.Bull(1877)7Ch.I).29; 47L..T.Ch. 139; 26W.E.230. 42 
 
 Wiseman v. Beake (1690) 2 Vern. 121 581 
 
 Witt r. Corcoran (1871) 8 Ch. 476, n. ; 16 Eq. 571 . . 292 
 Wolfe r. Matthews (1882) 21 Ch. D. 194; 51 L. J. Ch. 833; 
 
 47 L. T. 158; 30 W. li. 838 631 
 
 Wolverhampton Banking Co., Ex parte (1884) 14 Q. B. D. 32 . 289 
 Wood ?'. Abrey (1818) 3 Mad. 417 .... 57i, 575 
 Wood V. Barker (1805) 1 Eq. 139; 35 L. J. Ch. 276; 13 L. T. 
 
 318; 11 Jur. X. S. 905; 14 W. E. 47 . . . .239 
 Wood r. Downes (1811) IS Yes. 120 . . 295, 297, 302 
 
 Wood V. Eenwick (1842) 10 M. & W. 195 . . . 55, 66 
 Wood V. Griffith (1818) 1 Swanst. 43; Wils. C. C. 34 . . 497 
 
 Wood V. Scarth (1855) 2 K. & J. 33 468 
 
 Wood V. Tate (1806) 2 Bos. & P. N. E. 247 . . . . 154 
 Woolfe V. Home (1877) 2 Q. B. D. 355; 46 L. J. Q. B. 534; 
 
 36L. T. 705; 25 W. E. 728 .98 
 
 Worrall v. Jacob (1816-7) 3 Mer. 2G8 265 
 
 Worthington v. Curtis (1875) 1 Ch. Div. 419; 45 L. J. Ch. 
 
 259; 33 L. T. 828; 24 W. E. 221 .... 334,683 
 Wright's Case (1871) 7 Ch. 55; 41 L. J. Ch. 1 ; 25 L. T. 
 
 471; 19W. E. 45 509,529,540 
 
 Wright V. Chard (1859) 4 Drew. 673; 1 D. F. J. 567; 29 
 
 L. J. Ch. 82 ; 1 L. T. 138 ; 8 W. E. 35 . . . . 652 
 Wright V. Leonard (1861) 11 C. B. N. S. 258; 30 L. J. C. P. 
 
 365 ; 4 L. T. 110 ; 8 Jur. N. S. 415 ; 9 AV. E. 944 . . 79 
 Wright r. Monarch Investment Building Society (1877) 5 
 
 Ch. D. 726; 46L. J. Ch. 649 292 
 
 Wright r. Proud (1806) 13 Ves. 136 570 
 
 Wright V. Snowe (1848) 2 De G. & Sm. 321 ... 76 
 
 Wright V. Vanderplank (1855) 2 K. & J. 1; 8 D. M. G. 133; 
 
 25 L. J. Ch. 753 ; 2 Jur. N. S. 599 . . 549, 565, 595 
 
 Wrigley v. Swainson (18J9) 3 De G. & 8m. 458 . . .247 
 WuM V. Jay (1872) L. E. 7 Q. B. 756 ; 41 L. J. Q. B. 322 ; 
 
 27 L. T. il8; 20 W. E. 1030 243 
 
 Wyatt V. Hertford (1802) 3 East, 147 102 
 
 Wycombe Ey. Co. v. Donnington Hospital (1866) 1 Ch. 273; 
 
 14 L. T. 179 ; 12 Jur. N. S. 347 ; 14 W. E. 359 . . . 403 
 Wynn v. Shropshire Union, &c. Co. (1850) 5 Ex. 420 . . 347 
 Wynne's Case (1873) 8 Ch. 1002 ; 43 L. J. Ch. 138; 29 L. T. 
 
 381 ; 21 W. E. 895 40 
 
 Wythes v. Labouchere (1858-9) 3 De G. & J. 593 ; 5 Jur. 
 
 N. S. 499 418, 493 
 
 Xenos V. Wickham (1866) L. E. 2 H. L. 296; 36 L. J. C. P. 
 313 6, 48, 616
 
 IxXXViii TABLE OF CASES. 
 
 PAGE 
 
 Yarborough v. Bank of England (1812) IG East, 6 . .155 
 
 Yates V. Boon (1739) 2 Str. 1104 90 
 
 Yates V. Nash (1860) 8 C. B. N. S. 581 ; 29 L. J. C. P. 306; 
 
 2 L. T. 430 ; 6 Jur. N. S. 1343 ; 8 W. E. 764 . . . 205 
 Yeomaus V. Williams (1865) 35 Bcav. 130; 1 Eq. 184; 35 
 
 L. J. Ch. 283 615 
 
 Young I'. Clark (1720) Pre. Ch. 538 577 
 
 Young & Co. V. Mayor of Leamington (1883) 8 App. Ca. 
 
 517; 52 L. J. Q. B. 713; 49 L. T. 1; 31 W. E. 925; 47 
 
 J. P. 660 156 
 
 Zouch V. Parsons (1765) 3 Burr. 1794; 1 W. Bl. 575 . . 55
 
 ADDENDA AND ERRATA. 
 
 ADDENDA. 
 
 Page 163. Statute of Frauds, s. 4 — Memorandum consisting of separate 
 Documents. — In Stndds \. Watson, a receipt and a letter, of -which 
 the latter did not refer to the former, were held by North, J., to 
 constitute together a sufficient memorandum. 
 
 Page 173, note (s), Laives v. Purser is also reported 6 E. & B. 930. 
 
 Page 224. Bill of lading.— 18 & 19 Vict. c. 1 1 1 .—Endorsement and 
 delivery of a bill of lading by way of pledge does not, per se, pass 
 ' ' the property ' ' under the statute so as to make an indorsee liable 
 on the shipper's contract : Seivell v. BurdicJi, 10 App. Ca. 74. 
 What would be the effect of a transfer that operated as a mort- 
 gage, qu.: per Lord Blackburn, p. 103. 
 
 Page 231. Restrictive Covenants — Change in joositio)i of Parties. — See now 
 Sayers v. Collyer in C. A., 28 Ch. D. 103. In the opinion of 
 Bowen and Fry, L.JJ., the rule in Duke of Bedford v. Trustees of 
 British Museum, 2 My. & K. 552, applies only "where an altera- 
 tion takes place through the acts or permission of the plaintiff, or 
 those under whom he claims, so that his enforcing his covenant 
 becomes imreasonable " (Fry, L. J., at pp. 109, 110) ; not where 
 an alteration has taken place by means extraneous to the plaintiff 
 or those whose estate he has. 
 
 Page 334. Payment under Agreement not enforceable against Principal — 
 Authority to Agent, wheyi irrevocable. — Read v. Anderson, 13 Q. B. D. 
 779, has been considered in two cases of purchase of bank shares 
 through brokers, where the contract note omitted to specify the 
 numbers of the shares as required by 30 & 31 Vict. c. 29, s. 1. 
 The brokers, if they had not completed the contracts, might have 
 been declared defaulters, and expelled from the Stock Exchange. 
 In Seymour v. Bridge, 14 Q. B. D. 460, Mathew, J., held that the 
 principal could not repudiate ; in Perry v. Barnett, 14 Q. B. D. 
 467, Grove, J., held (distinguishing the case from Bead v. Ander- 
 son and Seymour v. Bridge), that, if he did not know the usage of 
 the Stock Exchange, he could. 
 
 p- u
 
 XC ADDENDA AND ERUATA. 
 
 Pages 430, 477. MistaJce — Rescission or Rectijieation. — A proposal was 
 made in ■writing to let certain floors of a house, and by inadver- 
 tence one floor was included which the proposer intended to 
 reserve: this proposal was accepted without qualification, and 
 a lease was executed, including the floor which the lessor had 
 intended to reserve. The lessor, on discovering the mistake, sued 
 for rectification or cancellation in the alternative, on the autho- 
 rity of Harris v. PeppereU, 5 Eq. 1 ; Bacon, V.-C, holding that 
 the plaintift' had proved what was his o^vn intention, and that the 
 defendant, if his intention was not the same, must have known 
 there was some mistake, gave the defendant the option of having 
 the lease rectified according to the j)laintiff's contention, or can- 
 celled: Fagct V. Marshall, 28 Ch. D. 225. On principle it seems 
 that in this class of cases relief should be given only where the 
 circumstances exclude the supposition of the mistaken offer having 
 been accepted in reasonable good faith ; and though this point is 
 not very clearly brought out in the language of the authorities, 
 they can hardly be accepted in any other sense. See Tamplin v. 
 James, 15 Ch. D. 215. 
 
 Page 452. MistaJce — Obvious Error in Instrument. — Add to the examples in 
 note {x) Salt v. Fym, 28 Ch. D. 153 (Chitty, J.). 
 
 Page 499. Ifisrepresentafion — Sale of Land — Rescission tcithout Compen- 
 sation. —Where particulars of sale were misleading as to the 
 botmdaries and frontage of the land sold. North, J., held the 
 purchaser entitled to unconditional rescission : Bretcer v. Brown, 
 28 Ch. D. 309. 
 
 EREATA. 
 
 25, note {d), Baihfs ca., for 3 Ch. 529, read " 3 Ch. 592." 
 
 39, line 30, AddinelVs ca,., for 1 Eq. 255, read " 1 Eq. 225." 
 
 40, note (t), for Olive y. Beaumont, read " Clive v. Beaumont.'''' 
 61, note \q), Coxhead v. Mullis, for 3 Q. B. D. read "3 C. P. D." 
 90, note (s), Coohe v. Clayxvorth, for 8 Ves. 12, read " 18 Ves. 12." 
 
 106, note {c),for Cherry v. Colonial Bank of Australia, read " CJierri/ v. 
 
 Colonial Bank of Australasia.^' 
 115, note iff), Maekay v. Commercial Bank of New Brunstvick, for 
 
 5C. P. read "5 P. C." 
 163, note (i), Cherry v. Jleming, fur 19 L. J. Ex. 031, read " 19 L. J. 
 
 Ex. 63." 
 
 218, note {e), Brandaov. Barnett, for 12 CI. Sc F. 105, read " 12 CI. & 
 
 r. 787." 
 
 219, note {m), Balfour v. Ernest, fur 4 C. B, N. S. read "5 C. B. 
 
 N. S."
 
 ADDENDA AND ERRATA. XCl 
 
 242, note {!), Oriented Financial Corporation v. Ovcrencl, Gurncy ^ Co., 
 
 for L. R. 7 H. L. 318, read " L. R. 7 E. L. 348." 
 253, note (o). Chambers v. Manchester, S;c. Eij. Co., for 33 L. J. C. P. 
 
 jw^ "33L. J. Q. B." 
 281, 282, 332, Holman v. Johnson, /oj-Cowp., rrar^ " 1 Cowp." 
 317, line 8, Harms v. Farso7is, for 1863, 7-<;afZ " 1862." 
 330, note (c), i/(j!J«<?s v. Busk, for 5 Taunt. 821, read " 5 Taunt. 521." 
 428, note {e), Eaglesjield v. 31. of Londonderry, for 3 Ch. D. read 
 
 "4 Ch. D." 
 452, note {x), for CroftonY. Bavics, read " Cropton v. Bavics.^^ 
 495, note (5'), -Rice v. Gordon, for 11 Beav. 465, rrar? "11 Beav. 265." 
 495, note [k). Way y. Hearn, for 33 L. J. C. P. read "32 L. J. 
 
 C. P." 
 504, note {a), lleywood v. MallaVieu, for 25 Ch. read " 25 Ch. D." 
 516, note \l), Hill v. Lane, for 1 Eq. read " 11 Eq." 
 611, note (e), Humphreys v. Green, for 11 Q. B. D. read " 10 
 
 Q. B. D." 
 683, line 2, &«t7/i v. Lindo,forb C. B. N. S. ^Wf^ "4 C. B. N. S." 
 696, note {b), Figgott v. Stratton,for 1 D. J. S. »w(Z " 1 D. F. J." 
 
 I take this opportunity of calling the attention of historical students 
 of the Common Law who read Geiman to two articles by Mr. Ernst 
 Schuster, a German resident in London, in Busch's Archiv fiir Handels- 
 und "Wechseli'echt — "Der Vertragsschluss nach Englischem Recht," 
 vol. 45, p. 317, and "Die Consideration als Giiltigkeitsbedingung 
 des Vertrags in Englischen Recht," vol 46, p. 111. These papers, 
 though primarily designed to make the rules of English law intelligible 
 to German lawyers and men of business, are thoroughly worked out 
 from first-hand study, and contain much valuable independent criticism.
 
 ( xcii ) 
 
 REFERENCES AND ABBREVIATIONS. 
 
 Benjamin on Sale. Third edition, 1884. 
 
 Dart's Vendors and Purchasers. (Dart, V. & P.) Fifth edition, 1876. 
 
 I. C. A. means the Indian Contract Act (IX. of 1872). 
 
 Law Journal. Always cited by the number of the vol. in the New Series. 
 
 Law Reports (1865 — 75). The Chancery Appeal and Equity cases are 
 
 cited as " Ch." and "Eq." simply. 
 Law Reports (1875 — ). The Scotch appeals to the House of Lords and 
 
 appeals to the Judicial Committee of the Privy Council reported in 
 
 the Appeal Cases series, if not expressly mentioned to be such in 
 
 the context, are distinguished by the additions (Sc.) and (J. C.) 
 
 respectively. 
 Lindley on the Law of Partnership. (Sometimes cited by the author's 
 
 name alone.) Fourth edition, 1878. 
 Saunders' Reports, notes to, by the late Serjeant "Williams (Wms. 
 
 Saund.) Ed. 1871. Cited by the paging of that edition, not the 
 
 pages of Saunders. 
 Savdgny, System des heutigen romischen Rechts (Savigny, or Sav. Syst.). 
 
 Berlin, 1840—1849. 
 Savigny, Das Obligationenrecht (Sav. Obi.). Berlin, 1851 — 3. 
 Smith's Leading Cases (Sm. L. C). As a rule the seventh edition, 1876, 
 
 has still been referred to. 
 Vangerow, Lehrbuch der Pandekten (Vangerow, Pand.), Seventh edition. 
 
 Marburg and Leipzig, 1863. 
 Pothier's and Story's works are cited by the consecutive sections. 
 Savigny and Vangerow are cited indifferently by volume and page, or by 
 
 the consecutive sections, often by both.
 
 PRINCIPLES OF CONTRACT. 
 
 CHAPTER I. 
 
 Agreement, Proposal, and Acceptance, 
 
 Our first business is 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 defi- 
 nitions, though necessarily imperfect, may help to clear 
 the way. 
 
 1. Every agreement and promise enforceable by law is Contract. 
 a contract. 
 
 2. An agreement is an act in the law whereby two or Agree- 
 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. 
 
 3. Such declaration may consist of Expres- 
 
 («) the concurrence of the parties in a spoken or consent. 
 
 written form of words as expressing their 
 
 common intention, or 
 (b) a proposal made by some or one of them, and 
 
 accepted by the others or other of them. 
 
 4. The declaration by any person of his intention to do Promise, 
 or forbear from anything at the request or for the use of 
 another is called a promise. 
 
 ^0 p. }J
 
 AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 Void 
 agree- 
 ment. 
 
 Voidable 
 contract. 
 
 Nature 
 and scope 
 of consent. 
 
 5. An agreement wliicli has no legal effect is said to be 
 void. An agreement whicli ceases to have legal effect 
 is said to become void or to be discharged. 
 
 6. 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. Be-finition of Agreement. — 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 agreement 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 effects. 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 necessary, 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 sens^ : for it is 
 not meant to produce, nor does it produce, any new legal 
 duty or right, or any change in existing ones {a). Again, 
 
 (ff) Nothing but the absence of 
 intention seems to prevent a con- 
 tract from arising in many cases of 
 this kind. A. asks B. to dinner and 
 B. accepts. Here is proposal and 
 acceptance of something to bo done 
 byB. at A.' s request, namelj^, com- 
 ing to A.'s house at the aiipoiuted 
 time, and the trouble and expense 
 of doing this are ample considera- 
 tion for A.'s promise to provide a 
 dinner. Wliy is A. not legally bound 
 to have meat and drink ready for B. , 
 so that if A. had forgotten his invi- 
 
 tation and gone elsewhere B. should 
 have a right of action ? Only because 
 no legal bond was intended by the 
 parties. It might possibly be said 
 that these are really cases of con- 
 tract, and that only social usage and 
 the trifling amount of pecuniary 
 interest involved keep them out of 
 courts of justice. But I think Sa- 
 vigny' 8 view, which is here adopted, 
 is the better one. There is not a 
 contract wliich it would be i-idiculous 
 to enf oi'ce, but the original pi'oposal 
 is not t]\e proposal of acontract.
 
 OBLIGATION. 
 
 there must not only bo an act in the law, but an act 
 which determines duties and rights of the parties. A 
 consent or declaration of several persons is not an agree- 
 ment 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 Coui-t 
 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 be paid over 
 to the testator's daughter on her marriage with their con- 
 sent, and they give their consent to her marrying J. S., 
 this declaration 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 Obliga- 
 duty to the beneficiary, but no mutual obligation. By *^°°- 
 obligation we mean the relation that exists between two 
 persons of whom one has a j)rivate and peculiar right 
 (that is, not a merely public or official right, or a right 
 incident to ownership or a permanent family relation) to 
 control the other's actions by calling upon him to do or 
 forbear some particular thing (6). An agreement might 
 be defined, indeed, as purporting to create an obligation. 
 But for the purposes of English law we prefer to say 
 (what is in effect the same) that an agreement contemplates 
 something to be done or forborne by one or more of the 
 parties for the use of the others or other. The word use 
 is familiar in English law-books from early times in such 
 a connexion as this ; and I think it mostly if not always 
 imports the creation of a personal claim, Forderung as the 
 German writers call it, on the part of him for whose use a 
 thing is said to be done. 
 
 (J) Savigny, Syst. i. 338—9 ; Obi, i. 4, scq. 
 
 b2
 
 AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 Proof of 
 
 consent. 
 
 Proposal 
 and ac- 
 ceptance. 
 
 It is proper to add that the common intention of the 
 parties to an agreement 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 naturally understand A. to make a 
 promise, and B. does take A.'s words or conduct as a 
 promise, no further question can be made about what was 
 passing in A.'s mind. Under such circumstances, as well 
 as in certain other more special 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 
 the law gives effect is real as well as apparent. 
 
 2. Wai/s of declaring consent. — Two distinct modes of 
 the formation of an agreement are here specified. It is 
 possible, however, to analyse and define agreement as 
 constituted 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 contracts which occur in daily 
 life, buying and selling, letting and hiring, in short all 
 transactions which involve striking a bargain. One party 
 proposes his terms; the other accepts, rejects, or meets 
 them with a coimter-proposal : and thus they go on till 
 there is a final refusal and breaking off, or till one of them 
 names terms which the other can accept as they stand. 
 The analysis is presented in a striking form by the solemn 
 question and answer of the Roman Stipulation, where the 
 one paiiy 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 (c) . Yet the importance of proposal and accept- 
 
 (c) No doubt theformula'S|00w<7f.v? 
 spondco, originally the only binding 
 
 one, was in early times supposed to 
 have a kind of magical effect. But
 
 DECI.ARATIOX OF CONSENT. i 
 
 ance as elements of contract has been mueli more distinctly 
 hrought out in Englisli jurisprudence tlian by writers on 
 the modern civil law {(/) : and, one may add, on the whole 
 more rationally treated. 
 
 Does this analysis, however, properly apply to a case in I^ t^o . 
 which the consent of the parties is declared in a set form, unlver- 
 as where they both execute a deed or sign a written agree- ^"jj^f v]^^ p 
 ment ? It may be said that, although there is no proposal 
 or acceptance in the final transaction, the terms of the 
 document must have been settled by a process reducible 
 to the acceptance of a proposal. 
 
 But then 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 declared. In such a case it 
 cannot be said that the proposal and acceptance constitute 
 an agreement, at all events not the true and final agree- 
 ment. Take the common case of a lease. There is gene- 
 rally 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 proj)erty) 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 because in the common course he executes the 
 lease before the lessee executes 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 proposer, and 
 the party bound is the acceptor ? What, again, if two 
 parties are discussing the terms of a contract and cannot 
 agree, and a thiixl indifferent person suggests terms which 
 they both accept ? Shall we say that he who accepts them 
 
 it was necessary that the stipulator many. See Vangerow, Pand. § 603, 
 
 should hear the promisor's answer. or Windscheid, Lehrbuch des Pan- 
 
 Cp. Palgrave, Commonwealth of dektenrechts, ^306. The technical 
 
 England, 2, cxxx^ii, cxli. terms are Antrag for our offer or 
 
 [d) Increased attention has how- proposal, A>inahme for acceptance, 
 ever been paid to this topic in Ger-
 
 AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 Promise : 
 may exist 
 and bind 
 as con- 
 tract be- 
 fore ac- 
 ceptance 
 in English 
 law. 
 
 first tliereby proposes them to tlie otlier ? It is possible 
 to say this, but not without a certain strain of thought 
 and language. And what if they accept at the same 
 moment ? 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 us in sheer fictions. 
 In this case it seems at least harmless to let the formal or 
 declaratory process of establishing a contract stand on its 
 own footing side by side with the discursive or bargain- 
 striking process. Even apart from the difficulty, to which 
 we shall immediately come, that there may be a binding 
 promise without any acceptance at all, I do not think the 
 one is fairly reducible to the other. 
 
 The terms propoml and acceptance are defined by the 
 Indian Contract Act (e), but for natural-born speakers of 
 English they seem hardly to need more definition than is 
 implied in the rules which have to be subsequently given. 
 In English authorities j^roposal and offer are used as syno- 
 nymous terms, offer being, if anything, the more common. 
 
 3. Definition of Promise. — The definition of the Indian 
 Contract Act is that " a proposal when accepted becomes a 
 promise." This again is apt and sufficient for the every- 
 day or bargaining type of contract. But there are cases 
 which it seems not to cover. Not only a promise, in the 
 ordinary sense of the word, may be made in writing before 
 there is any acceptance of it by the person to whom it is 
 made, but if made by deed it is at once binding and 
 iiTevoeable. Certainly this doctrine is of an archaic and 
 technical kind, resting as it does more on the formal 
 character of a deed than on any principle of general appli- 
 cation ; and possibly, or more than possibly, its expediency 
 is doubtful. But it is a settled part of the law of Eng- 
 land (/). If the analytical view of the Indian Contract 
 
 {$) See Note A. 
 
 (/) Xenos V. Wicklum, L. K. 2 
 H. L. 29G, 323, and authorities 
 tlicro cited : see at pp. 300, 309. 
 
 For the reasons on the other side, 
 see the opinion of Willes, J. at 
 pp. 315, 31G.
 
 "VOID AND "VOIDABLE. 7 
 
 Act is to "be applied to tlie existing state of English juris- 
 prudence, it can he done only by treating this class of 
 cases as anomalous. It will not do to say that the contract 
 is complete when the other party knows of the promise and 
 assents ; for if that were so, it could in the meantime be 
 revoked. And if we say that acceptance is presumed in 
 the case of an offer which is unconditional and wholly for 
 the benefit of the party to whom it is made, we are at 
 once in the region of fictions. It might serve a little 
 better to say that, by an exceptional effect of the form of 
 the transaction, the proposal is in these cases irrevocable. 
 But this is only another way of saying that the regular 
 analysis does not hold good. 
 
 4. Definition of Contract. — The term contract is here Restrlc- 
 confined to agreements enforceable by law. This restric- co)^°„ct 
 tion, suggested perhaps by the Roman distinction between to enforce- 
 contractus and pactum, is believed to have been first intro- ments? 
 duced in English by the Indian Contract Act. It seems 
 
 a manifest improvement, and free from the usual draw- 
 backs of innovations in terminology, as it makes the legal 
 meaning of the words more precise without any violent 
 interference with their accustomed use. 
 
 5. Void Agreements. — The distinction between void and Void 
 voidable transactions is a fundamental one, though it is n^^nt^.'^jig. 
 often obscured by carelessness of language even in modern tinction of 
 books. An agreement or other act which is void has from voidable. 
 the beginning no legal effect at all, save in so far as any 
 
 party to it incurs penal consequences, 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 
 voidable .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. The definitions of the Indian 
 Contract Act on this head are simpler in form than those 
 given above : but certain peculiarities of English law pre- 
 vent us from adopting the whole of them as they stand.
 
 8 AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 It is not correct as an universal proposition in England 
 that " an agreement not enforceable by law is said to be 
 void," for we have agreements that cannot be sued upon, 
 and yet are recognized by law for other purposes and have 
 legal effect in other ways {(j). 
 Voidable 6. Voidable Contracts. — The definition here given is 
 con rac . ^^^^^ ^l^^ 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 agree- 
 ment 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 ordinary 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, which has been signed by one party and not by 
 the other. Here the party who has signed is bound and 
 the other is free. " Voidable contract " seems not exactly 
 the aj)proj)riate name for such a state of things. And it 
 may even be said that a contract which has been com- 
 pletely 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 (A). 
 Considera- Consideration is also defined in the interpretation clause 
 ^^°^' of the Indian Act. Perhaps it- is to be regarded rather as 
 
 a condition generally (though not always) imposed by a 
 positive rule of English law as needful to the formation of 
 a binding contract than as an elementary constituent of 
 an agreement. In fact the English system of law, as dis- 
 tinguished from those of the Continent and even of Scot- 
 
 (ff) See Ch. XII. below. something harsh in saying- that it 
 
 (h) Tlicre i.s a .similar but slighter becomes void, a terra suggestive of 
 
 difficulty about tlie use of the word inefficacy rather than of completed 
 
 roUl. A contract when it is fully otfect. Hence in the fifth definition 
 
 performed ceases to have legal I have introduced the word dis- 
 
 cffect ; it is discharged, but there is charged as an alternative.
 
 EXPRESS AND TACIT AGllEEMENTS. 9 
 
 land, is the only one in which the notion is fully developed. 
 Hereafter a fuller discussion will be given : for ihe present 
 it may serve to describe consideration as an act or forbear- 
 ance, or the promise thereof, which is offered by one party 
 to an agreement, and accepted by the other, as an induce- 
 ment to that other's act or promise. 
 
 Notwithstanding the difficulties that arise in making Special 
 proposal and acceptance necessary parts of the general l-ovcmm"- 
 conception of Contract, there is no doubt that in practice proposal 
 they are the normal and most important elements. When ceptance. 
 agreement has reached the stage of being embodied in 
 a form of words adopted by both parties, the contents of 
 the document and the consent of the parties are generally 
 simple and easily proved facts : and the only remaining 
 question (assuming the other requirements of a valid con- 
 tract to be satisfied) is what the words mean. The accept- 
 ance 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 circum- 
 stances and of men's intentions, and the exchange of com- 
 munications between parties at a distance, raise questions 
 which have to be provided for in detail, and some of which 
 are of exceeding difficulty. Special consideration is needful 
 as soon as we get beyond the simplest possible case, that 
 of two parties, such as a buyer and seller of goods, meeting 
 and striking their bargain face to face. "We shall now see 
 how these questions are dealt with in English law. 
 
 Communications in general. 
 
 The proposal or acceptance of an agreement may be Proposal 
 communicated by words or by conduct, or partly by the ^^^tance 
 one and partly by the other. In so far as a projDOsal or —Express 
 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
 
 10 AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 occurrence, and naturally in small matters rather than in 
 great ones, where the proposal, or the 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. 
 Distinc- A promise made in this way is commonly said to be 
 
 tacit con- implied : but this tends to obscure the distinction of the 
 tractsfrom j,qqI though tacit promise in these cases from the fictitious 
 contracts, 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 contmctu, 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, 
 no doubt, it is 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, tJie Jaw will imphj [quasi- 
 contract] or the jury may infer [true contract] a promise 
 by each party to do what is to be done by him " {i). 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 of law, but an inference of 
 fact which a jury may reasonably find, that B. must be 
 taken to have promised to indemnify A. (/■) . 
 
 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 circumstances 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 in- 
 
 (i) Per Cur. Morgan v. liavci/, G (k) Dtit^dalcv. Lovcring, L. R. 10 
 
 H. & N. 2G5, 30 L. J. Ex. 131. C. V. 19(3.
 
 QUASI-CONTRACTS. 11 
 
 ferring a promise by B. to pay what A.'s labour is worth. 
 And this is a j)ui'e inference of fact, the question being 
 whether B.'s conduct 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 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 
 knowledge. For by the hypothesis the doing of the work 
 is not a proposal, not being communicated at the time : 
 B. has no opportunity of approving 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 (/). Nor 
 is the case altered if A. comes to B. and tells him that 
 the work is done and requests to be paid for it. This is 
 indeed a proposal, but a new and distinct one : and as it 
 imports no new consideration, B.'s acceptance of it would 
 in the view of English law be a merely gratuitous promise, 
 and as such would make no contract. If A. of his 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; though he is bound, on the principle to be next 
 mentioned, to take a certain amount of care of them till 
 A. reclaims them. 
 
 But it does not follow that because there is no true Quasi- 
 contract, there may not be cases falling within this general appear' a^s 
 description in which it is just and expedient that an fictitious 
 obligation analogous to contract should be imposed upon in English 
 the person receiving the benefit. In fact there are such ^^"^• 
 cases : and as the forms of our common law did not recog- 
 nize obligations quasi ex contractu in any distinct manner, 
 these cases were dealt with by the fiction of an implied 
 
 [1) Cp. dicta of Pollock, C. B., 25 L. J. Ex., at p. 332.
 
 12 
 
 AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 Indian 
 Contract 
 Act deals 
 with them 
 sepa- 
 rately. 
 
 Perform- 
 ance of 
 conditions 
 &c., as ac- 
 ceptance. 
 
 OfPers by 
 advertise- 
 ment. 
 
 previous request, wliicli 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 rec^uest, so 
 that the transaction which was the real foundation of the 
 matter was treated as forming the consideration in a 
 fictitious contract of the regular type. And thus here, as 
 in many other instances, the law was content to rest in a 
 compromise between the forms of pleading and the con- 
 venience 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 necessary 
 to understand them (ni). The Indian Act provides for 
 matters of this kind more simply in form and more com- 
 prehensively in substance than our present law, by a 
 separate chapter, entitled " Of certain Relations resem- 
 bling those created by Contract " (ss. 68 — 72, cp. s. 73). 
 
 A corollary from the general principle of tacit accept- 
 ance, 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 
 acceptance of any consideration for a reciprocal promise 
 which may be offered with a proposal, is an acceptance of 
 the proposal." 
 
 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 per- 
 formance an offer thus made did not become a binding 
 promise, because " it was not averred nor declared to whom 
 
 (>«) For details see notes to 
 Zamplciffh v. JJraithivaitc, in 1 Sm. 
 
 L. C, and OshoDie v. liot/crs, 1 
 Wms. Sa\md. 367.
 
 PROPOSAL TO UNASCERTAINED PERSONS. 13 
 
 the promise was made" («). But tlie established modern 
 doctrine is that there is a contract with any person who 
 performs the condition mentioned in the advertisement (o). 
 That is, the advertisement is a proposal which is accepted 
 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 (j)). Until some person has done this, 
 it is a proposal and no more. It ripens into a promise 
 only when its conditions are fully satisfied. As 8ir W. 
 Anson has well put it, " an offer need not be made to 
 an ascertained person, but no contract can arise until it 
 has been accepted by an ascertained person "((7). We 
 have no special term of art for a proposal thus made by 
 way of general request or invitation to all men to whose 
 knowledge it comes. The Grermans call it Auslohung. 
 
 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 not before), there is a com- 
 plete contract with the particular bidder to whom the lot is 
 knocked down (r). 
 
 The principle is sufficiently clear, but its application is Difficul- 
 not wholly free from difficulties. These are partly re- ^o^.^^q 
 ducible to questions of fact or of interpretation, but partly out the 
 arise from decisions which appear to give some countenance ^"^'^^P ^' 
 to a fallacious theory. 
 
 First, we have to consider in particular cases whether Distinc- 
 some act or announcement of one of the parties is really tw^g^^' 
 the proposal of a contract, or only an invitation to other offer and 
 persons to make proposals for his consideration (s) . This of ^offers, 
 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 pui'e fact or of construction. 
 
 («) Noy 11, 1 RoUe Ab. 6, M. {q) Principles of the EngUsh 
 
 pi. 1. Law of Contract, p. 31, 3rd ed. 
 
 (o) Williams v. Carwardine, 4 B. (r) Tayne v. Cave, 3 T. R. 148. 
 
 & Ad. 621. [s) In German this is Atcfforde- 
 
 [p) Per Willes, J., Spencer v. rnng zn Antrdgen as opposed to 
 
 Jlarding, L. R. o C. P. 563. Antrag. Vangerow, Pand. § 603.
 
 14 AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 Evidently it may be an important one, but due weight 
 lias not always been given to it. 
 
 The proposal of a definite service to be done for reward, 
 wbicli is in fact a request (in the sense of the ordinary 
 English law of contract) for that particular service, though 
 not addi-essed to any one individually, 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. Of course the person who publishes such an 
 invitation does contemplate that people who choose to act 
 on it will do whatever is necessary to put themselves in a 
 position to avail themselves of it. 
 
 But acts so done are merely incidental to the real object ; 
 they are not elements of a contract but preHminaries. It 
 does not seem reasonable to construe such preliminaries 
 into the consideration for a contract which the parties had 
 no intention of making. Yet there are some modern 
 decisions which seem to go very near such a result, and to 
 let in a certain danger of treating mere declarations of 
 intention as binding contracts (f). We shall now examine 
 these cases. 
 Examina- In Bcntoii V. G. iV. Railway Co. {u) the facts were 
 cases" shortly these : The plaintiff had come from London to 
 Denton v. Peterborough, had done his business there, and wanted to 
 Co. ' go on to Hull the same night. He had made his arrange- 
 ments 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 tlie reason that the 
 7.20 train no longer went to Hull. The fact was that 
 beyond Milford Junction the lino to Hull belonged to the 
 North Eastern Railway Company, who formerly ran a train 
 
 {t) Compare the judgments in (u) 5 E. & B. SCO, and better in 
 
 Harris v. Nickerson, L. R. 8 Q. B. 25 L. J. Q. B. 129, where the case 
 286. stated is i^ivcn at leucrth.
 
 PROPOSAL TO UNASCERTAINED PERSONS. 15 
 
 corresponding with tlie Grreat Northern train, for whicli the 
 Grreat Northern Railway Company issued through tickets 
 by arrangement between the two companies. This cor- 
 responding train had now been taken off by the N. E. 11. 
 Co., but the Gr. N. E-. time-table liad not been altered. 
 The plaintiff was unable to go further than Milford Junc- 
 tion that night, and so missed an appointment at Hull and 
 sustained damage. The cause was removed from a County 
 Com't 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 (.r) . 
 
 It was held by Lord Campbell, C. J. and Wightman, J. 
 that when any one 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 pas- 
 senger to that place according to the advertisement. 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 lan- 
 guage, amounts to saying that the time-table is a proposal, 
 or part of a proposal, addi'essed to all intending passen- 
 gers and sufficiently accepted by tender of the fare at the 
 station in time for the advertised train. Crompton, J. (//) 
 did not accept this view, nor was it necessary to the actual 
 decision : for the Com't 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 representa- 
 tion. 
 
 In Wco'low V. Harrison (z) a sale by auction was an- Warlow v. 
 nounced as without reserve, the name of the owner not damson. 
 
 {x) As to the measure of damages, [ij] The fuller report of his judg- 
 
 which here was not in dispute, see ment is that in 5 E. & B. 
 
 Hamlin v. G. N. R. Co. 1 H. & N. {z) 1 E. & E. 295, 28 L. J. Q. B. 
 
 408, 26 L. J. Ex. 20 (where a 18, in Ex. Ch. 1 E. & E. 309, 29 
 
 ticket having been taken there was L. J. Q. B. 14. 
 an unquestionable contract).
 
 16 
 
 AGREEMENT, PEOPOSAL, AND ACCEPTANCE, 
 
 Doctrine 
 subse- 
 quently 
 doubted 
 and not 
 extended. 
 
 being disclosed. The lot vras 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 Cham- 
 ber aflBjmed the judgment on the pleadings as they stood, 
 but thought the facts did show another cause of action. 
 "Watson and Martin, BB. and Byles, J. considered that the 
 auctioneer contracted with the highest bond Jide 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 
 contract is completed not by the acceptance of a bidding, 
 but by the bidding itself, subject to the condition that no 
 higher hona fide bidder appears. In other words, every 
 bid is in such a case not a mere proposal but a conditional 
 acceptance. Willes, J. and BramweU, 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 waiTanty. The result was that leave was 
 given to the plaintiff to amend and proceed to a new trial, 
 which however was not done [a] . The opinions expressed by 
 the judges, therefore, are not equivalent to the actual judg- 
 ment 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 reserve {b) . 
 Still more recently the same Court has 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 
 
 (a) The parties Agreed to a stet 
 processus ; see note in the L. J. re- 
 port. 
 
 (J) Mainprice v. TTestley, 6 B. & 
 S. 420, 34 L. J. Q. B. 229.
 
 CONTKACTS BY GENERAL OFFER. 17 
 
 the goods shall be actually sold (c) . In an analogous case 
 of Spencer v. Harding {d) 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. 
 
 The doctrine of these cases is capable, as we have seen, Difficul- 
 of being expressed in a manner conformable to the normal x)e^ton v 
 analysis of contract : but if it is to be fully accepted, ^- N. R. 
 there may be some difficulty in settling its extent. If a man Warlow v. 
 advertises that he has goods to sell at a certain price, does Harrison 
 
 ° ••• ' on theory 
 
 he contract with any one who comes and offers to buy ofproposal 
 those goods that until further notice communicated to ceptunce. 
 the intending buyer he will sell them at the advertised 
 price ? (e). 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 per- 
 formed ? or do directors or committee-men who summon a 
 meeting contract with all who come that the meeting shall 
 be held? In like manner it might be argued that a 
 common carrier is liable in contract as well as in tort for 
 refusing to carry goods. Indeed we might thus arrive at 
 an extended notion of contract which would cover all the 
 oases in which courts of equity have interfered, on grounds 
 independent of contract, as was supposed, to compel per- 
 sons to make good their representations (/), and would 
 indeed go beyond them : for a representation not only of 
 fact, but of mere intention, might be treated as a proposal, 
 and as soon as anything was done on the faith of it there 
 would be an acceptance and a complete contract. 
 
 Another matter for remark is the effect of notice of Difficulty 
 revocation. Suppose the traveller had seen and read a fromrevo- 
 new and correct edition of the time-table in the booking- cation of 
 
 " proposal. 
 
 (f) Harris v. Nickerson, L. E. 8 {e) See per Crompton, J. in Deii- 
 
 Q. B. 286. ton v. G. X. li. Co. supra. 
 
 (d) L. R. 5 C. P. 561. It may be (/) See Dav. Conv. 3, pt. 1, 646 ; 
 
 worth while to remark that iu each jjcr Lord Selbornc, L. R. 6 H. L. at 
 
 of these cases we have the unanimous p. 360. 
 decision of a strong Court. 
 
 F. C
 
 18 AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 office immediately before he offered to take his ticket. 
 This would clearly have been a revocation of the proposal 
 of the company held out in the incorrect time-table, and 
 on the present hypothesis no contract could arise. Simi- 
 larly if on putting up a particular lot the auctioneer 
 expressly retracted as to that lot the statement of the sale 
 being without reserve, there could be no such contract 
 with the highest bond fide bidder as supposed in Warlow v. 
 Harrison. Thus the remedy ex contractu in this class of 
 cases appears to be precarious. In practice, it is true, 
 this matters little, for the party aggrieved may still have 
 his remedy by suing in tort. He may so, no doubt ; but 
 the failure of the cause of action in contract goes to show 
 that here we are at least near the extreme boundary of the 
 region in which the notion of contract is applicable {(j). 
 Difficulty It vvdll not have escaped the reader's notice that there is 
 the sup5 filso a certain difficulty in determining what are the eon- 
 posed con- tents and consideration of the contract supposed to be 
 made. In the ease of the time-table, for example, it is 
 not sufficient to say that the statements of the table are a 
 term in the company's ordinary contract to carry the pas- 
 senger. That may well be true after he has taken his 
 ticket. But here we have a contract said to be concluded 
 by the mere demand of a ticket and tender of the fare, 
 which, therefore, cannot be the ordinary contract to carry. 
 So in the case of the auction we have a contract alleged to 
 be complete not on the acceptance but on the making of a 
 bid. The anomalous character of these contracts may 
 further be illustrated by considering whether it would be 
 possible to maintain a remedy ex contractu in the case of a 
 merely capricious refusal to issue tickets or hold the sale, 
 as the case might be. On the whole, we cannot help 
 thinking that some of the opinions and dicta in this class 
 
 {g) The Continental doctrine that L. K. 5 Ex. at p. 337, and p. 24, 
 
 the revocation must be so conimuui- below. As to the somewhat analo- 
 
 cated as to amoimt to reasonable jyous suggestion made in that case, 
 
 notice is of course inadmissible for see s. c. in Ex. Ch. L. R. 7 Ex. at 
 
 our law ; sec note to Frost v. KnUjht, p. 117.
 
 CONTRACTS BY GENERAL OFFER. 19 
 
 of cases, if not the decisions themselves, have to some 
 extent overstepped the true principles of contract. The 
 later cases of Sj)ciieer v. IlanJing and Harris v. NicJier' 
 son {h) make it pretty clear, however, that these refinements 
 are not likely to bo extended. 
 
 Another difficulty (though for English lawyers it shonld Mustthere 
 not be a serious one) is raised by the suggestion that in accepT-^^ 
 these cases the first offer or announcement is not a mere auce? 
 proposal, but constitutes at once a kind of anomalous T^^^?^^ °^ 
 noatmg contract with the unascertamed person, if any, who obligation, 
 shall fidfil the prescribed condition. A fiiicx/uui iuris 
 with one end loose is on principle an inadmissible con- 
 ception, to say nothing of the inconvenience which would 
 come from treating the offer as an irrevocable promise, 
 Savigny quite justly held that on this theory the right of 
 action could not be supported ; but he strangely missed 
 the true explanation (/). To a certain extent, however, 
 this notion of a floating obligation is countenanced by the 
 language of the judges in the cases above discussed ; and 
 it also receives some apparent support from the much 
 earlier case of WiUiams v. Carirardiiw (k). There a 
 reward had been offered by the defendant for information 
 which should lead to the discovery of a murder. A state- 
 ment which had that effect was made by the plaintiff, but 
 not to the defendant, nor with a view to obtaining the 
 reward, nor, for aught that appears, with any knowledge 
 that a reward had been offered. The Court held, never- 
 theless, that the plaintiff had a good cause of action, 
 because the motive with which the information was given 
 was immaterial : on which it must be observed that the 
 question is not of motive but of intention. The decision 
 sets up a contract without any anhiius contrahendi. If it 
 be now laAv (which may be doubted), it goes to show that 
 
 (/i) P. 17, above. analysis for the not dissimilar case 
 
 (<■) Obi. 2, 90. It is the more of a sale by auction. 
 
 strange inasmuch as within a couple [k) 4 B, & Ad. 621, 
 
 of pages he does give the true
 
 20 
 
 AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 Eevoca- 
 tion of 
 offer by 
 advertise- 
 ment. 
 
 Other 
 general 
 proposals 
 not being 
 offers of 
 reward. 
 
 E.c pnrle 
 
 in this class of cases there may bo an acceptance constitut- 
 ing a contract without any communication of the proposal 
 to the acceptor, or of the acceptance to the proposer. But 
 the statement of Parke, J. that " there was a contract with 
 any person who performed the condition mentioned in 
 the advertisement," is rather ambiguous ; it savours of the 
 notion that there is an inchoate or unascertained obligation 
 from the first publishing of the offer. And if such were 
 indeed the ratio decidendi, we need not hesitate to say that 
 at the present day it cannot be maintained. The modern 
 cases not already cited have tm-ned only on the question 
 whether the party claiming the reward had in fact per- 
 formed the required condition according to the terms of 
 the advertisement (/). 
 
 The Supreme Court of the United States held a few 
 years ago that a general proposal made by public announce- 
 ment may be effectually revoked by an announcement of 
 equal publicity, such as an advertisement in the same 
 newspaper, even as against a person who afterwards acts 
 on the proposal not knowing that it has been ' revoked. 
 For " he should have known," it is said, " that it could be 
 revoked in the manner in which it was made" {m). In 
 other words, the proposal is treated as subject to a tacit 
 condition that it may be revoked by an annoimcement 
 made by the same means. This is, perhaps, a convenient 
 rule, and may possibly be supported as a fair inference of 
 fact from the habits of the newspaper-reading part of 
 mankind : yet it seems a rather strong piece of judicial 
 legislation. 
 
 We may add one or two miscellaneous instances of 
 general proposals, not being offers of reward, which have 
 been dealt with as capable of acceptance by any one to 
 whoso hands they might come. 
 
 In E.r parfe Asiatic Bankinrj Corporation (ii), the foUow- 
 
 (l) References were given in 
 former editions of this work (p. 17*3, 
 2nd cd.). 
 
 (m) Shuc)/ V. United States, 2 Otto 
 (92 U. S.) 73. 
 (w) 2 Ch. 391.
 
 CONTRACTS BY GENERAL OFFER. 21 
 
 iiig letter of credit had been given Ly Agra and Master- A.siatic 
 man's Bank to Dickson, Tatham and Co. Conionf- 
 
 " No. 39-1. You are hereby authorized to draw upon this bank at ''^°"' 
 six months' sight, to the extent of £15,000 sterling, and such drafts I 
 undertake duly to honour on j)re.sentation. This credit will remain in 
 force for twelve months from this date, and parties negotiating bills 
 under it are requested to indorse particulars on the back hereof. The 
 bills must specify that they are drawn under credit No. 394, of the 31st 
 of October, ISGo." 
 
 The Asiatic Banking Corporation held for value bills 
 drawn on the Agra and Masterman's Bank under this 
 letter; the Bank stopped payment before the bills were 
 presented for acceptance, and Dickson, Tatham and Co. 
 were indebted to the Bank in an amount exceeding what 
 was due on the bills : but the Corporation claimed never- 
 theless to prove in the winding-up for the amount, one of 
 the grounds being " that the letter shown to the person ad- 
 vanx3ing money constituted, when money was advanced on 
 the faith of it, a contract by the Bank to accept the bills." 
 Caims, L.J., adopted this view, holding that the letter did 
 amount to " a general invitation " to take bills drawn by 
 Dickson, Tatham and Co. on the Agra and Masterman's 
 Bank, on the assurance that the Agra and Masterman's 
 Bank would accept such bills on presentation ; and that 
 the acceptance of the offer in this letter by the Asiatic 
 Banking Corporation constituted a binding legal contract 
 against the Agra and Masterman's Bank (o) . The diffi- This case 
 culties above discussed do not seem to exist in this case, ^j^g ^i^g. 
 From an open letter of credit (containing too in this ^^^J ^ 
 
 Denton v. 
 
 (o) In ScoU V. FUkingtoii, 2 B. & question its correctness in an Englirth 
 
 S. 11, 31 L. J. Q. B. 81, on the court. So far as any opinion was 
 
 other hand, an action was brought expressed by the Coui't as to what 
 
 on a judgment of the Siixjreme should have been the decision on 
 
 Court of New York on a very simi- the same facts in a case governed 
 
 lar state of facts. The decision of by the law of England, it was 
 
 the English Court was that the law against any riglit of action at law 
 
 applicable to the case was the law being acquired by the bill-holders, 
 
 of New York, and that the judg- This however was by the way, and 
 
 ment having been given by a court as a concession to the defendants, 
 
 of competent jurisdiction in a case and is therefore no positive autho- 
 
 to which the local law was properly rity. 
 applicable, there was no room to
 
 22 
 
 AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 G. N. R. 
 
 Co. 
 
 Statute of 
 Friuxds 
 and con- 
 tracts by 
 advertise- 
 ment : 
 dicfa in 
 Williams 
 V. Byrnes. 
 
 instance an express request to persons negotiating bills 
 under it to indorse particulars) there may be inferred 
 "without any violence either to law or to common reason a 
 proposal or request by the author of the letter to the mer- 
 cantile public to advance money on the faith of the under- 
 taking expressed in the letter. This undertaking must 
 then be treated as addressed to any one who shall so 
 advance money : the thing to be performed by way of 
 consideration for the undertaking is definite and substan- 
 tial, and is in fact the main object of the transaction. If 
 any question arose as to a revocation of the proposal, it 
 would be decided by the rules which apply to the revoca- 
 tion of proposals made by letter in general (7^). 
 
 Another instance of contracts made by general offer is 
 in the documents called " advance notes," by means of 
 which sailors' wages used commonly to be paid. The form 
 was a promise to pay so much to any one who should 
 advance so much on the document to a named person (the 
 sailor), and the person who made the advance could there- 
 upon sue for the promised amount (q) . 
 
 The bearing of the Statute of Frauds on these contracts 
 made by advertisements or general offers has been dis- 
 cussed incidentally in a case brought before the Judicial 
 Committee of the Privy Council on appeal from the 
 Supreme Court of New South Wales (y). It is settled 
 that the requirements of the statute in the cases where it 
 applies are generally not satisfied unless the written 
 evidence of the contract shows who both the contracting 
 parties are. But it was suggested in the Colonial Court 
 that in the case of a proposal made by advertisement, 
 where the nature of the contract {e.rj. a guaranty) was such 
 as to bring it within the statute, the advertisement itself 
 might be a sufficient memorandum, the other party being 
 
 (;;) Sec however (S/(«cy v. United 
 Slates, p. 20, above. 
 
 (ly) HecMcKunev. Joi/nson,b C. B. 
 N. S. 218, 28 L. J. C. P. 133. These 
 fidvauce notes are now illet;'al. Mer- 
 
 chant Seamen (Payment of Wages 
 and Rating) Act, 43 & -14 Vict. c. IG, 
 8. 2. 
 
 (r) Williams v. Byrnes, 1 Moo. P. 
 C. C. N. S. 154.
 
 REVOCATION OF PROPOSAT,. 23 
 
 indicated as far as the nature of the transaction would 
 admit (s). The Judicial Committee, however, showed a 
 strong inclination to think that this view is not tenahle, 
 and that in such a case the evidence required hy the 
 statute would not be complete without some further 
 writing to show who in particular had accepted the pro- 
 posal. It was observed that as a matter of fact the cases 
 on advertisements had been of such a kind that the statute 
 did not apply to them, and it was a mere circumstance 
 that the advertisement was in writing (t) . We are not 
 aware of the point having arisen in any later case. The 
 oiDinion here expressed by the Court is worth noticing for 
 another reason. It is an authority in favour of the view 
 which we have adopted as the only sound one, namely, that 
 there is no anomalous contract, but a contract between 
 ascertained persons, which is constituted by the acceptance 
 of the proposal. 
 
 JRevocafion. 
 
 A proposal may be revoked at any time before accept- Revoca* 
 ance but not afterwards. proposal. 
 
 For before acceptance there is no agreement, and there- 
 fore the proposer cannot be bound to anything {u). So 
 that even if he purports to give a definite time for accept- 
 ance, he is free to withdraw his proposal before that time 
 has elapsed. He is not bound to keep it open unless there 
 is a distinct contract to that effect, founded on a distinct 
 consideration. If in the morning A. offers goods to B. Cooke v. 
 for sale at a certain price, and gives B. till four o'clock in ^ ®^" 
 the afternoon to make up his mind, yet A. may sell the 
 goods to C. at any time before four o'clock, so long as B. 
 
 (.s) Fcr Stephen, 0. J. at pp. 167, applicable to contracts made in this 
 
 184. manner. 
 
 (;;) See at p. 198. The language {n) The same rivle applies to a 
 of the head-note is misleading ; proposal to vary an existing agree- 
 there is no suggestion in the judg- ment : GUkcs v. Leonino, 4 C. B. 
 ment of any such proposition of law N. S. 485. 
 as that the Statute of Frauds is not
 
 24 AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 has not accepted his offer {x). But if B. were to say to 
 A. : " At present I do not know, but tlie refusal of your 
 offer for a definite time is worth something to me ; I will 
 give you so much to keep it open till four o'clock " (or 
 even, it may be, " If you will keep it open till four o'clock, 
 then, in the event of my taking the goods, I will add so 
 much to the price ") (//), and A. were to agree to this, 
 then A. would be bound to keep his offer ojoen, not by the 
 offer itself, but by the subsequent independent contract. 
 Dickiuson If A. on Wednesday hands to B. a memorandum offering 
 to sell a house at a certain price, with a postscript stating 
 that the offer is to be " left over " till nine o'clock on Friday 
 morning, A. may nevertheless sell the house to C. at any 
 time before the offer is accepted by B. If B. having heard 
 of A.'s dealing with C, tenders a formal acceptance to A., 
 this is inoperative (z). It is different in the modern civil 
 law. There a promise to keep a proposal open for a definite 
 time is treated as binding, as indeed there appears no 
 reason why it should not be in a system to which the 
 doctrine of consideration is foreign : nay, there is held in 
 effect to be in every proposal an implied promise to keep 
 it open for a reasonable time {a). In om* own law the 
 effect of naming a definite time in the proposal is simply 
 negative and for the proposer's benefit ; that is, it operates 
 as a warning that an acceptance will not be received after 
 the lapse of the time named, not as an undertaking that if 
 given sooner it shall be. In fact, the proposal so limited 
 comes to an end of itself at the end of that time, and 
 
 (.(,•) CooJce V. 0.ik>/, 3 T. R. G.53 ; I)c la Tour, 2 E. & B. 678, 22 L. J. 
 
 affd. ill Ex. Ch., see uote. It is far Q. B. 45o,and Frost v. Knight, L. R. 
 
 from clear what the Court really 7 Ex. Ill, one might get the result 
 
 meant to decide in that case, and it in the text, scd qu. 
 lias been the subject of much criti- (;) Dickinson v. Boclds (C. A.), 2 
 
 cism. For the conflicting views see Ch. D. 4G3. The case suggests, but 
 
 Benjamin on Sale, G6 (3rd ed.) and docs not decide, another question 
 
 LaugdeU's Summary of the Law of which will be presently considered. 
 
 Contracts, p. 24G. Contra Langdell, Summary, p. 214 ; 
 
 (y) Sec 6-'. N. Ity. Co. v. V'ilham, and on pi'inciple perhaps rightly. 
 L. R. 9 C. P. 16: combining this («) Vangerow, Band. § 603 (3, 
 
 with the principle of llocltster v. 253); see L. R. 5 Ex. 337, n.
 
 COMMUNICATION OF REVOCATION. 25 
 
 there is nothing for the other party to accept. This leads 
 US to the next rule, namely : — 
 
 Conditions of 'Propoml. 
 
 The proposer may prescribe a certain time within which Detcrmi- 
 the proposal is to be accepted, and the manner and form proposal 
 in which it is to be accepted. If no time is prescribed, ^y ^^P?,^ °* 
 
 , . , . . , . prcscnbed 
 
 the acceptance must be communicated to him withm a or reason- 
 reasonable time. In neither case is the acceptor answer- ^ ™®' 
 able for any delay which is the consequence of the pro- 
 poser's own default. If no manner or form is prescribed, 
 the acceptance may be communicated in any reasonable 
 or usual manner or form. 
 
 This is almost self-evident, standing alone ; we shall see 
 the importance of not losing sight of it in dealing with 
 certain difficulties to be presently considered. Note, how- 
 ever, that though the proposer may prescribe a form or 
 lime of acceptance^ he cannot prescribe a form or time of 
 refusal, so as to fix a contract on the other party if he does 
 not refuse in some particular way or within some particular 
 time {h) . 
 
 Among other conditions, the proposal may prescribe a 
 particular place for acceptance, and if it does so, an accept- 
 ance elsewhere will not do (c) . The real question in cases 
 of this kind is whether the condition as to time, place, or 
 manner of acceptance was in fact part of the terms of the 
 proposal. 
 
 There is direct authority for the statement that the 
 proposal must at all events be taken as limited to a reason- 
 able time {d) ; nor has it ever been openly disputed. The 
 rule is obviously required by convenience and justice. It 
 may be that the proposer has no means of making a re- 
 
 {b) Fclthonse v. Bindlexj, 11 C. B. {d) BaxUfs ca., 5 Eq. 428, 3 Ch. 
 
 N. S. SG9, 875, 31 L. J. C. P. 201. 529 ; Eamsgate Hotel Co. v. Monte- 
 
 (c) EUasoti V. Hciishaw (Sup. Ct. florc, same Co. v. GoMsmid, L. E. 1 
 
 U. S.), 4 Wheat. 225, Langdell, Ex. 109. 
 Sel. Ca. on Cont. 48.
 
 26 
 
 AGREEMENT, PROPOSAL, AXD ACCEPTANCE. 
 
 Tocation known {e. g., if the other party changes his address 
 without notice to him, or goes on a long journey), and he 
 cannot be expected to wait for an unlimited time. There 
 is also direct authority to show that an acceptance not 
 communicated to the proposer or his agent does not make 
 a contract (e) ; but this is subject to an important excep- 
 tion, as we shall presently see, where the parties are in 
 correspondence through the post-office. 
 
 Revoca- 
 tion of 
 proposal 
 must be 
 communi- 
 cated 
 before ac- 
 ceptance. 
 
 Revoca- 
 tion after 
 acceptance 
 too late. 
 
 Byrne v. 
 Van Tien- 
 hoven. 
 
 Limits of Revocation. 
 
 A proposal is revoked by communication to the other 
 party of the proposer's intention to revoke it, and the 
 revocation can take effect only when that communication 
 is made before acceptance. 
 
 The communication may be either express or tacit, and 
 notice received in fact, whether from the proposer or from 
 any one in his behalf or otherwise, is a sufficient commu- 
 nication. 
 
 The rule involves two or three points which, strange to 
 say, were not expressly disj^osed of by any English authority 
 until quite lately. The first is that an express revocation 
 communicated after acceptance, though determined upon 
 before the date of the acceptance, is too late. This was 
 decided in 1880 first by Lindley, J. in Byrne v. Van Tien- 
 hoven (/), and again shortly afterwards by Lush, J. in 
 Stevenson v. MacLean [g] . It will suffice to give shortly 
 the facts of the former case. The defendants at Cardiff 
 wrote to the plaintiffs at New York on the 1st of October, 
 1879, offering for sale 1000 boxes of tinplates on certain 
 terms. Their letter was received on the 11th, and on the 
 same day the plaintiff accepted the offer by telegraph, 
 confirming this by a letter sent on the 15th. Meanwhile 
 
 (c) M'lver v. Eichardson, 1 M. & 
 S. 557 ; Mozley v. Tinkler, 1 C. M. 
 & R. 692 ; llKssell v. Thornton, 4 II. 
 & N. 788, 798, 804 ; mhb'n ca., 4 
 Eq. 9. 
 
 (/) 5 C. P. D. 344. 
 
 {o) 5 Q. B. D. 346. Both these 
 j iiclfrcs afterwards became members 
 of the Court of Appeal.
 
 COMMUNICATION OF REVOCATION. 27 
 
 the defendants on the 8th of Octoher had posted a letter 
 withdrawing their offer of the 1st : this reached the plain- 
 tiffs on the 20th. The plaintiffs insisted on completion of 
 the contract ; the defendants maintained that there was no 
 contract, the offer having been, in their view, withdrawn 
 before the acceptance was either received or despatched. 
 Lindley, J. stated as follows the questions to be con- 
 sidered : "1. Whether a withdrawal of an offer has any 
 effect until it is communicated to the person to whom the 
 offer has been sent ? 2. Whether posting a letter of with- 
 drawal is a communication to the person to whom the letter 
 is sent ?" The fu'st he answered in the negative, on the 
 principle " that a state of mind not notified cannot be re- 
 garded in dealings between man and man, and that an 
 uncommunicated revocation is for all practical pm-poses 
 and in point of law no revocation at all." The second he 
 likewise answered in the negative, on grounds of both 
 principle and convenience, and notwithstanding an ap- 
 parent, but only apparent, inconsistency with the rule as 
 to acceptances by letter which will be presently considered. 
 
 It seems impossible to find any reason in principle why As to tacit 
 the necessity for communication should be less in the case tTon°^" 
 of a revocation which is made not by words but by conduct, 
 as by disposing to some one else of a thing offered for sale. 
 Nor does it seem practicable in the face of the decisions 
 just cited, though they do not actually cover such a case, 
 to say that any such difference is recognized by the law of 
 England. The authority most in point, Dicliiiison v. 
 Dodds {]>), is not of itself decisive. The facts were these. 
 A. offered in writing to sell certain houses to B., adding a 
 statement that the offer was to be " left over " until a time 
 named ; which statement, as we have already seen, could 
 have no legal effect unless to warn B. that an acceptance 
 would not be received at any later time. B. made up his 
 
 (A) 2 Ch. D. 463 (0. A.) One or two immaterial details are omitted in 
 Btatinp: the facts.
 
 2b AGREEMENT, PROPOSAL, AXU ACCEPTANCE. 
 
 mind the next morning to accept, but delayed communi- 
 cating his acceptance to A. In the course of the day he 
 heard from a person who was acting as his agent in the 
 matter that A. had meanwhile offered or agreed to sell the 
 property to C. Early on the following day (and within 
 the time limited by A.'s memorandum) B. sought out A. 
 and handed a formal acceptance to him ; but A. answered, 
 " You are too late. I have sold the property." It was 
 held in the fii'st instance by Bacon, Y.C., that A. had made 
 to B. an offer which up to the time of acceptance he had 
 not revoked, and that consequently there was a binding 
 contract between A. and B. But in the Court of Appeal 
 this decision was reversed. James and Mellish, L.JJ., 
 pointed out that, although no " express and actual Avith- 
 drawal of the offer " had reached B., yet by his own 
 showing B., when he tendered his acceptance to A., well 
 knew that A. had done what was inconsistent with a con- 
 tinued intention of contracting with B. Knowing this, B. 
 could not by a formal acceptance force a contract on A. (/). 
 It does not appear that the knowledge which B. in fact had 
 was conveyed to him or his agent by or through A., or any 
 one intending to communicate it on A.'s behalf. Therefore 
 the case decides that knowledge in point of fact of the 
 proposer's changed intention, however it reaches the other 
 party, will make the proposer's conduct a sufficient revoca- 
 tion. But what if B. had communicated his acceptance to 
 A. without knowing anything of A.'s dealings with C. ? 
 This question remains open, and must be considered on 
 principle. 
 Possiijility Supposc that A. offers to sell one hundred tons of iron to 
 
 accept- ^ 1^-5 ^0^ designating any specific lot of iron, and that B. 
 ance. 
 
 (i) Bagg.'iUay, J. A. concurred. ledge of tlie sale." This, I venture 
 
 The licad-uote says: " Se nib Ic, that to think, (and so do the learned 
 
 the sale of the jjropcrty to a third editors of Eenjamin on Sale, 3rd 
 
 person would of itself ;imount to a od.) is quite unwarranted by the 
 
 withdrawal of the offer, even al- judgments. See especially the re- 
 
 though the person to whom the marks of Mellish, L.J. ff(^ ^/fw. 
 offer was first made had no know-
 
 COMMUNICATIOM OF REVOCATION. 29 
 
 desires time to consider, and A. assents. Then A. meets 
 with 0., they talk of the price of iron, and 0. offers A. a 
 better price tlian he has asked from B., and they strike a 
 bargain for a hundred tons. Then B. returns, and in igno- 
 rance of A.'s dealings with C. accepts A.'s offer formerly 
 made to him. Here are manifestly two good contracts. 
 A. is bound to deliver 100 tons of iron to B. at one price, 
 and 100 tons to 0. at another. And if A. has in fact 
 only one hundred tons, and was thinking only of those 
 hundred tons, it makes no difference. He would be 
 equally bound to B. and 0. if he had none. He m.ust 
 deliver them iron of the quantity and quality contracted 
 for, or pay damages. How then will the case stand if, 
 other circumstances being the same, the dealing is for 
 specific goods, or for a house ? Here it is impossible 
 that A. should perform his agreement with both B. and 
 C, and therefore they cannot both make him perform 
 it ; but that is no reason why he should not be answer- 
 able to both of them. The one who does not get per- 
 formance may have damages. It remains to ask which 
 of them shall have the option of claiming performance, if 
 the contract is otherwise such that its performance can be 
 specifically enforced. The most convenient solution would 
 seem to be that he whose acceptance is first in point of 
 time should have the priority : for the preference must be 
 given to some one, and the first acceptance makes the first 
 complete contract. There is no reason for making the 
 contract relate back for this purpose to the date of the 
 proposal. This is consistent with everything that was 
 decided, if not with everything that was said, in Biclaiison 
 v. Do(hh{h). 
 
 It is right to add that Coolie v. Oxicy (J) may be so read 
 as to support the opinion that a tacit revocation need not 
 be communicated at all. But the apparent inference to 
 
 (/t) 2 Ch. D. 463. Note that the and Anson, 28-30. 
 suit was for specific performance, (/) 3 T. R. 6-53. 
 
 and cp. Langdell, Summary, 24o-(i,
 
 30 
 
 AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 Opinions 
 of Con- 
 tinental 
 writers. 
 
 tills effect is expressly rejected in Stevenson v. MacLean (;;*), 
 and therefore need not be discussed here. 
 
 Eoman law supplies no direct answer to questions of 
 this class, and not much that tends to suggest one. 
 Modern civilians have differed greatly in their opinions. 
 Pothier lays down a rule directly contrary to that now 
 settled in our law. The passage (Contr. de Yente, § 32) 
 is well known, and may also be seen, but slightly abridged, 
 in Mr. Benjamin's work on Sale (p. 73). Pothier does 
 not fail to see the manifestly unjust consequences of 
 letting a revocation take effect, though the other party has 
 received, accepted, and acted upon the proposal without 
 knowing anything of the proposer's intention to revoke it; 
 but he escapes them by imposing an obligation on the 
 proposer, upon groimds of natm-al equity independent of 
 contract, to indemnify the party so accepting against any 
 damage resulting to him from the transaction. This treat- 
 ment of the subject wholly overlooks the consideration 
 that not intention in the abstract, but communicated 
 intention, is what we have to look to in all questions of 
 the formation of contracts (»). And the obligation to 
 indemnify (which must be classed as quasi ex delicto if 
 anything) is not only a cumbrous and inelegant device, 
 but, as Mr. Benjamin points out, overshoots its mark by 
 being in turn unfair to the proposer. The same or a 
 closely similar view has been taken by some recent Grerman 
 writers of repute (o) . Far more satisfactory is Yangerow 
 (Pand. § C03), whose opinion is to this effect. The decla- 
 ration of an animus contrahendi (whether by way of pro- 
 posal or of acceptance), when once made, must be regarded 
 as continuing so long as no revocation of it is communi- 
 cated to the other party. A revocation not communicated 
 is in point of law no revocation at all. In this respect the 
 
 (m) T; Q. B. D. at p. 351. 
 
 («) Lcako, Ijicmcntary Digest of 
 the Law of Contracts, 44 n. 
 
 \u) Windscheid, Pand. ^ 307, cit- 
 ing among others Iliering, who calls 
 
 the right acquired on this theory by 
 the acceptor without notice of revo- 
 cation "das negative Vertragsin- 
 teresse." So too Bell, Principles of 
 the Law of Scotland, § 73.
 
 COMMUNICATION OF REVOCATION. 31 
 
 revocation of a proposal or acceptance must ho governed 
 Lj the same rules as the proposal or acceptance itself. 
 
 Liinifs of Acceptance or of its Revocation. 
 
 An acceptance must he communicated to the proposer Accept- 
 to he effectual, and the communication of an acceptance or ^^^'^ °f. 
 
 . , , ^ revocation 
 
 of its revocation is suhject to the same rules as the com- thereof 
 munication of a proposal or of its revocation : provided communi- 
 tliat any means of communication prescribed or authorized ^^^ed like 
 by the proposer are as against him deemed sufficient. subject to 
 
 If the proposer prescribes or authorizes the despatch of K'^r'^*^ 
 an acceptance by means wholly or partly beyond the authorized 
 sender's control, such as the public post or telegraph, then poser°and 
 an acceptance so desiiatched iupartlcu- 
 
 {a) is complete as against the proposer from the time of spatch of 
 its despatch out of the sender's control ; answer by 
 
 , . . . . . post, are 
 
 ih) is effectual notwithstanding any miscarriage or delay deemed 
 in its transmission happening after such despatch. ^" ""^ ' 
 
 It should seem obvious that, as a matter of general prin- General 
 ciple, an imcommunicated mental assent cannot make a commum- 
 contract. Yet as lately as 1877 it was found needful to cation, 
 reassert this principle in the House of Lords {p). It is 
 true that the proposer may dispense with actual communica- 
 tion to this extent, that by prescribing a particular raanner 
 of communication he may preclude himself from afterwards 
 showmg that it was not in fact sufficient. In Lord Black- 
 bm-n's words, " when an offer is made to another party, and 
 in that offer there is a request express or implied that he 
 must signify his acceptance by doing some particular thing, 
 then as soon as he does that thing there is a complete 
 contract " («7) . The most important application of this 
 
 (^j) Brogdcn v. MetrojwlUaii Etj. are not reported. 
 
 Co., 2 App. Ca., at p. 688 (Lord [q) Yet would this hold if the 
 
 Selbome), at p. 691 (Lord Black- prescribed act were not of a kind 
 
 burn), and at p. 697 (Lord Gordon). fitted to make the acceptor's inten- 
 
 The judgments in the Court below tion known to the proposer)' 
 which o-ave rise to these remarks
 
 oo 
 
 AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 Agree- 
 ment to 
 take shares 
 not excep- 
 tionally 
 treated. 
 
 Difficul- 
 ties as to 
 contracts 
 by coiTe- 
 spondence. 
 
 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 by a mere 
 private act, such as putting a letter into a drawer," will, as 
 a rule, serve to conclude a contract. 
 
 It was supposed at one time that the Companies Act, 
 1862, had introduced a different rule in the case of agree- 
 ments to take shares, and that an applicant for shares 
 became a shareholder by mere allotment and registration, 
 though nothing were done to give notice to him ; but it is 
 now settled that this is not so ; the ordinary rules as to 
 the formation of contracts must be applied (r). Bearing in 
 mind what these rules are for simple cases, let us proceed 
 to more complex ones. 
 
 The proviso above given and the explanation following 
 it are intended to express the rules which, after much 
 uncertainty, have at length 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 princij)le that 
 the proposer is bound from the date of acceptance. Then 
 we have to consider 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 concern- 
 ing the accepting party's rights, that the acceptance 
 should date from the time when he has done all he can to 
 accept, by 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 at this point the contract is 
 
 (>•) Gunii's case, 3 Ch. 40. There 
 need not be formal notice of allot- 
 ment ; acting towards the applicant 
 on the footing that ho has got the 
 sharcH, e. (j. appointing him to an 
 office under the company for which 
 
 the shares are a necessary qualifi- 
 cation, is enough. This of course 
 is quite in accordance with general 
 principles. Richards v. Home As- 
 surance Association, L. R. 6 0. P. 
 591.
 
 CONTRACTS BY COIUIESPONUEXCE. 33 
 
 irrevocable and absolute. But are wo to hold it absolute 
 for all purposes, so that on the one hand the acceptor sliall 
 remain bound, though he should afterwards despatch a 
 revocation which arrives with or even before the acceptance ; 
 and on the other hand, the proposer shall bo bound, though, 
 without any default of his own, the acceptance never reacli 
 him ? These consequences seem, in turn, against reason 
 and convenience. Tlie proposer cannot, at all events, act 
 on the contract before the acceptance is communicated to 
 him ; as against him, therefore, a revocation should on 
 principle be in time if it reaches him together 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 by an acceptance that he never receives. 
 He has no means of making sure whether or when his 
 proposal has arrived (6'), or whether it is or not accepted, 
 for the other party need not answer at all. The acceptor 
 might at least as reasonably be left to take the risk of his 
 acceptance miscarrying, for in practice he can easily take 
 means, if he think fit, to provide against this. 
 
 In the judicial treatment of these questions, however, Theories 
 considerations of a different kind have prevailed. It has eXh'sIi^'^ 
 been generally assumed that there must be some one cases: 
 moment at which the consent of the parties is to be deemed commou 
 complete, and the contract absolute as against both of them, ^pi^^y 
 
 Or "DOSt" 
 
 and for all purposes (as if it were a question of some mys- office, 
 terious virtue inherent in the nature of the transaction, 
 and not of positive rules of law) ; 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. Doubtless the post- 
 master-general is the agent of every one who sends a letter, 
 
 (4) The Geiinan post-office, how- of any letter with an official certifi- 
 ever, undertakes (if required at the cate of its delivery, 
 time of iiosting) to furnish the sender 
 
 r. p
 
 34 AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 for the purpose of conveying that letter (though an agent 
 
 who cannot be sued) ; but how this supposed common 
 
 agency for two parties in correspondence is constituted or 
 
 Doctrino proved I coufcss myself unable to understand. Perhaps 
 
 poser's this language was really intended to convey, by means of 
 
 risk de- r^ fiction, what has been more plainly said in the latest and 
 
 rived irom , , ' _ ^ i ./ 
 
 his autlio- decisive case, and is given above as the ground of the 
 answer by English rule ; namely, that a man who requests or 
 post. authorizes an acceptance of his offer to bo sent in a par- 
 
 ticular way must take the risks of the mode of transmission 
 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. But 
 there is a fiction in this also. The reason would be good 
 in the case of a man desiring an answer to be sent to him 
 by some extraordinary means of communication, by photo- 
 phone, for example. But the post (which may now be 
 said to include the telegraph) is the common and natural, 
 or, in terms familiar to the law, reasonable and usual 
 means of communication between persons who are not face 
 to face. There is no real authority or request, for none is 
 needed. People use the post-office as a matter of course. 
 Even when a man desires an answer by return of post, he 
 is not thinking of the answer being sent by post rather 
 than in any other way, but of having it within a given 
 time. Could it be held that an answer by telegraph would 
 not be a good acceptance of a proposal in this form, or 
 that it would not have been so before the telegraphs had 
 been acquired by the post-office ? The proposer of a con- 
 tract by letter docs not really choose the post as a means 
 of communication more than the acceptor. Everybody 
 knows that there is practically no choice. Our received 
 doctrine first assumes a fictitious request, and thence infers 
 a fictitious agreement to take all risks of transit, not only 
 the risk of delay, but that of the acceptance not being 
 Rcvoca- delivered at all. Much of the language tliat has been used 
 ir""ijefurc suggcsts tlio cxtrcmc consoqucnco thnt even a revocation
 
 CONTRACTS BY CORRESPONDENCE. 36 
 
 despatclied after the acceptance and arriving before it would accept- 
 be inoperative. If the contract is absohitely bound by ^^^^" 
 posting a letter of acceptance, a telegram revoking it would 
 bo 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. It 
 is hard to believe that any Court would decide this : in 
 Scotland, indeed, it has been decided the other way (i). 
 The case, meanwhile, may arise in England any day. No 
 satisfactory solution of these problems can in truth be 
 attained without frankly taking account of their practical 
 character. The thing sought should bo to lay down such 
 rules as would produce the least amount of inconvenience 
 to both parties. Legal ingenuity might afterwards exer- 
 cise itself in expressing the rules in the form most consonant 
 with real or sui')posed first principles. However, we now 
 have a settled rule on all points except that of a revocation 
 outstripping the acceptance ; and any settled rule is better 
 than none. 
 
 The earlier cases, of which an account is given in the Earlier 
 Appendix (/), are now of comparatively little importance, coutracts 
 They established that an acceptance by post, despatched ^y con-es- 
 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 acci- 
 dental delay in the delivery; and that the contract, as 
 against the proposer, dates from the posting, so that ho 
 cannot revoke his offer after the acceptance is despatched. 
 Until 1879 it was uncertain whether a letter of acceptance 
 that miscarried altogether was binding on the proposer. 
 In that year the very point came before the Court of 
 Appeal (ii). An application for shares in the plaintiff 
 company, whose office was in London, was handed by the 
 defendant to a country agent for the company. A letter 
 of allotment, duly addressed to the defendant, was posted 
 
 {t) See Note B. («) Household Fire Insurance Co. 
 
 V. Grant, 4 Ex. D. 216. 
 
 p2
 
 36 AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 from the London office, but never reached him. The com- 
 pany went into liquidation, and the liquidator sued for the 
 amount due on the shares. It was held by Thesiger and 
 Baggallay, L.JJ., that on the existing authorities (which 
 were carefully reviewed) "if an offer is made by letter, 
 which expressly or imj^liedly authorizes the sending of an 
 acceptance of such offer by post, and a letter of acceptance 
 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 " (.r) ; that, on the grounds 
 and reasoning of the authorities, 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 circumstances 
 be taken to have authorized the sending by post of a letter 
 of allotment ; and that in the result he was bound. The 
 rule, it seems, is to be taken as limited *' to cases in which, 
 by reason of general usage, or of the relations between the 
 parties to any particular transactions, 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 autho- 
 rized" (y). Cases outside these limits, however, are not 
 likely to be frequent. Nothing was said by the majority 
 of the Court about the contingency of a revocation over- 
 taking the acceptance. Bramwell, L.J. delivered a vigorous 
 dissenting judgment, in which he pointed out among other 
 things the absurdity of treating such a revocation as in- 
 effectual. But he relied mainly on the broad ground that 
 a letter not delivered at all "is not a communication, and 
 that there is no agreement to tahe it as an equivalent for 
 or to dispense tcith a communication " iz). It is perhaps not 
 too presumptuous to regret that this view did not prevail. 
 But the result must be taken, we think, as final. It will 
 be seen by reference to the Appendix that it is not simply 
 a decision by the Court of Appeal, but a confirmation by 
 
 [x) Baggallay, L. J. 4 Ex. D. at the same limitation seems admitted 
 p. 224. by Thesiger, L. J. at p. 218. 
 
 (y) Baggallay, L. J. at p. 228; (-) 4 Ex. I>. at p. 234.
 
 CONTRACTS 15Y COKRESPONDENCE. 37 
 
 the Com't of Appeal of that sense in which a previous 
 decision of the House of Lords has on the whole been 
 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 («) . 
 
 We have seen that in general the contract dates from Accept- 
 the acceptance ; and though the acceptance be in form an r^i° tJbli^k 
 acknowledgment of an existing agreement, yet this will though re- 
 not make the contract relate back to the date of the pro- in form. 
 posal, at all events not so as to affect the rights of third 
 persons {b). 
 
 There is believed to be one positive exception in our Death of 
 law to the rule that the revocation of a proposal takes P^'oposer: 
 
 ■■■ ••■ semole, an 
 
 effect only when it is communicated to the other party, absolute 
 This exception is in the case of the proposer dying before thouHii^°^ 
 the proposal is accepted. This event is in itself a revoca- »ot know 
 tion, as it makes the proposed agreement impossible by party, 
 removing one of the persons whose consent would make 
 it (r). 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 om- 
 law, though not in the civil law, puts an end qjso facto to 
 the agent's authority, without regard to the time when it 
 becomes known either to the agent or to third parties {d). 
 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 
 
 (ff) See perThesiger, L. J. 4 Ex. son v. Dodds, 2 Ch. D. at p. 475. 
 
 D. at p. 223, and per Bramwell, {d) Blades v. Free, 9 B. & C. 1G7 ; 
 
 L. J. at p. 238. Held ace. in Camprniari v. Woodbuv)), 15 C. B. 
 
 Massachusetts : Lcic'is v. Broicning, 400, 24 L. J. C. P. 13, 2 Kent Comm. 
 
 130 Mass. 173 (1880). G46, D.46, 3,desolut. etliberat.32. 
 
 (h) Felt/wusev. llindle)/, 11 C. B. The Indian Contract Act, s. 208, 
 
 N. S. 869, 31 L. J. C. P. 204. illust. (c), adopts the rule of the 
 
 (c) Per Mcllish, L. J. in Diekin- civil law.
 
 38 
 
 AGllEEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 Insanity 
 no revoca- 
 tion. 
 
 of the proposal being revoked by the proposer's death. As 
 for insanity, which is treated in the same way by the 
 Indian Act, that would not in general operate as a revoca- 
 tion by the law of England, for wo 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 man becomes so far 
 insane as to have no mind, perhaps he ought to be deemed 
 dead for the purpose of contracting " (e). 
 
 AccejDt- 
 ance must 
 be un- 
 qualified. 
 
 Certainty of Acceptance. 
 
 The next rule is in principle an exceedingly simple one. 
 It is that 
 
 " In order to convert a proposal into a promise the 
 acceptance must be absolute and unqualified" (/). 
 
 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, pro- 
 posals 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 com- 
 munications 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 gene- 
 rally though not necessarily the construction of a written 
 instrument. The cases in which such questions have been 
 decided are nmnerous [g), and we shall here give by way 
 of illustration only a few of the more recent ones {Ji). 
 
 {c) Bramwcll, L.J., Drcwv. Kioi, 
 4 Q. B. D. at]>. GG9. 
 
 (/) Indian Oontnict Act, s. 7, 
 6ub-H. 1. 
 
 {(/) For collected autliorliies, sec 
 {infer alia) Fry on Specific Perform - 
 
 auco, c. 2. 
 
 (A) Cp. also the Frcncli case in 
 the Court of Cassation given in 
 Jjangdell's Select Cases on Con- 
 tract, loo.
 
 INSUFFICIENT ACCEPTANXE. 39 
 
 In Honcyman v. Marryat (i), before the House of Lords, a proposal for Instances 
 a sale was accepted "subject to the terms of a contract being; arranged" ^^ iusufli- 
 between the vendor's and purchaser's solicitors: this was clearly no ..(.cot t- 
 contract. Compare with this Iliisscy v. llonie Tayne (k), from which it auce. 
 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 accept- 
 ance, 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 sho'WTi by the vendor. 
 
 In Appleby v. JoJuisoii (/), 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 oiu' conversation and terms. If we can dcfino 
 some of the terms a little clearer, it might prevent mistakes ; but I think 
 we are quite agreed on all. We shall therefore expect you on Monday. 
 (Signed) — J. Appleby. — P.S. — I have made a list of customers wliich we 
 can consider together." It was held that on the whole, and especially 
 having regard to the postscript, which left an important term ox^cn to 
 discus.sion, there was no complete contract. 
 
 In Crossley v. ilaycoclc {in) an offer to buy certain land was accepted, but 
 with reference to special conditions of sale not before known to tho 
 intending purchaser. Held only a conditional acceptance. 
 
 In Stanley v. Doicdcstccll {it) an answer in this form : "I have decided 
 on taking No. 22, Bclgravo Road, and have spoken to my agent Mr. C, 
 who will arrange matters with you," was held insufficient to make a con- 
 tract, as not being complete and unqualified, assuming (which was 
 doubtfid) that the letter of which it was part did otherwise sufficiently 
 refer to the terms of the proposal. 
 
 In AddinelVs case (o) and Jackson v. Ttcrqicand {p), a bank issued a 
 circular offering new shares to existing shareholders in proxJortion 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, accex)ting their jproportion of shares, and also desiring 
 to have a certain number of additional shares, if they could, on tho 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 named, or the shares would be for- 
 feited. It was held by Endersley, V.-C, and confirmed by the House 
 of Lords, that as to the first or proportional set of shares the share- 
 holder's letter was an acceptance constituting a contract, but as to the 
 
 (i) 6 H. L. C. 112, by Lord (;;/) IS Eq. ISO. 
 
 Wcnslcydale. The case was not («) L. 11. 10 C. P. 102. Com- 
 
 argued, no one appearing for the pare Smith v. Webster, 3 C.i. D. VJ. 
 
 appellant. (o) 1 Eq. 255. 
 
 (/.) 4 App. Ca. 311, 322. {p) L. K. 4 H. L. 305. 
 
 (/) L. R. 9C.r. 15S.
 
 40 
 
 AGREEMENT, TROPOSAJ,, AKD A(JCEPTANCE. 
 
 Instances 
 of suffi- 
 cient ac- 
 ceptance 
 
 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 these. 
 
 In Wynne'' s case [q) two companies agreed to amalgamate. The agree- 
 ment 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 covenant 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 JBeck^s case (»•), in the same winding up, a shareholder 
 in the absorbed company applied for shares in the purchasing company 
 credited with a certain sum according to the agreement, and received in 
 answer a letter allotting him shares to be credited with a " j)roportionate 
 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. 
 
 On the other hand, the following instances will show that the rule 
 must be cautiously applied. An acceptance may be complete though it 
 expresses dissatisfaction at some of the terms, if the dissatisfaction stops 
 short of dissent, so that the whole thing may be described as a " grum- 
 bling assent " (s). 
 
 Again, an acceptance is of course not made conditional by adding 
 words that in truth make no difference ; as where the addition is simply 
 immaterial ((!), or a mere formal memorandum is enclosed for signature, 
 but not shown to contain any new term {h). And further, if the person 
 answering an unambiguous proposal accepts it with the addition of am- 
 biguous words, which are capable of being construed consistently with 
 the rest of the document and so as to leave the acceptance absolute, they 
 will if possible be so construed (j) . And perha^JS it is in like manner 
 oi:)en to the accepting party to disregard an insensible or repugnant 
 qualification annexed to the proposal : as where a man offers to take 
 shares in a company, "if limited," which in contemplation of law he 
 miist know to be not limited, and the dii-ectors allot shares and notify the 
 allotment to him without taking any notice of the attempted qualifica- 
 tion. But in the case referred to this view is not necessary to the result ; 
 for the applicant wrote a second letter recognizing the allotment. The 
 letter of allotment might therefore be treated as a counter-proposal — 
 namely, to allot shares in a company not limited — of which this last was 
 the acceptance {>/). And in fact there is one case somewhat against the 
 
 ('/) 8 Ch. 1002. 
 
 {)■) 9 Ch. 392. 
 
 («) Joi/cc v. Sicann, 17 C. B. N. S. 
 84 ; cj). per Lord St. Leonards, 6 
 II. L. C. 277— 8 (iu a dissenting 
 judgment). 
 
 (0 Olive V. Beaumont, 1 Dc G. & 
 
 S. 397. 
 
 (m) Gibbons v. K. E. Mctrop. Asy 
 him District, 11 Beav. 1. 
 
 {x) English (?■ Eorcign Credit Co, 
 V. Ardn'm, L. li. 5 H. L. Gl ; per 
 Lord AVestbury, at p. 79. 
 
 (y) Eerrctfs ca., 15 Eq. 250,
 
 CONSENT \VI1KN FlNAl,. 41 
 
 view here suggested : tlie letter of allotment was headed " not transfer- 
 able," apparently through a mere mistake of law, so that on a fair 
 construction it would seem to have been, not a really conditional accept- 
 ance, but an acceptance with an imaginaiy and illusory condition, wrongly 
 supposed to be implied in the nature of the transaction : but it was held 
 that no contract was constituted [z] . 
 
 Again, the unconditional acceptance of a proposal is not deprived of 
 its effect by the existence of a misunderstanding between the parties iu 
 the construction of collateral terms which are not part of the agreement 
 itself {a). 
 
 One fm-tlier caution is needed. All rules about tlie Tarties 
 formation and interpretation of contracts are subiect to ™'*^ J'"^ " 
 
 J- w poiiG con- 
 
 the implied proviso, " unless a contrary intention of the elusion of 
 parties appears." And it may happen that though the though ' 
 parties are in fact agreed uj)on the terms — in other words, f^o^'^cd on 
 though there has been a proposal sufficiently accepted to till em- 
 satisf}^ the general rule — yet they do not mean the agree- ^^^^ ^ 
 ment to be binding in law till it is put into writing or into formal in- 
 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 no agree- 
 ment independent of that stipulation " (i'^). Whether such 
 is in truth the understanding is a question which depends 
 on the circumstances of each particular case ; if the evi- 
 dence of an agreement consists of written documents, 
 it is a question of construction (not subject to any fixed 
 ride or presumption) whether the expressed agreement is 
 final (r). 
 
 It is not to be supposed, " because persons wish to have 
 a formal agreement drawn up, that therefore they cannot 
 be bound by a previous agreement, if it is clear that such 
 an agreement has been made ; but the circumstance that 
 
 (^) Duke V. Andrews, 2 Ex. 290. [h) ChinnocJc v. Marchioness of 
 
 [a) Babies v. Wood/all, 6 C. B. JEli/, 4 D. J. S. G38, 64G. 
 
 N. S. 6-57, 28 L. J. C. P. 338. The (c) Jlossiter v. Miller, 3 App. Oa. 
 
 facts unfortunately do not admit of 112-i, 1152. 
 abridprment.
 
 ■12 AGREEMENT, TROPOSAL, AND ACCEPTANCE. 
 
 tlie parties do intend a subsequent agreement to Tbo made 
 is strong evidence to show that they did not intend tho 
 previous negotiations to amount to an agreement " (<■/). 
 Still more is this the case if the first record of the terms 
 agreed upon is in so many words expressed to be "subject 
 to the preparation and approval of a formal contract" (e). 
 But again : " it is settled law that a contract may bo made 
 by letters, and that the mere reference in them to a future 
 formal contract will not prevent their constituting a bind- 
 ing bargain" {/). And in Brorjden v. Metropolitan Eij. 
 Co. (g), it was held by the House of Lords that tho con- 
 duct of the parties, who in fact dealt for some time on the 
 terms of a draft agreement which 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 question may however be made clearer 
 by putting it in this way — whether there is in the par- 
 ticular case a final consent of the parties such that no new 
 term or variation can be introduced in the formal docu- 
 ment to be prepared (//). 
 
 Certainty of Terms. 
 Agree- An agreement is not a contract unless its terms are 
 
 meut must , • -li j? i • ^ l • 
 
 be ceitaiu. certain or capable oi being made certain. 
 
 For the Court cannot enforce an agreement without 
 knowing what the agreement is. Such knowledge can bo 
 derived only from the manner in which the parties have 
 expressed their intention. If that expression has no 
 
 (f?) mdgwaijY. Wharton, 6 H. L. {g) 2 App. Ca. GQQ^'. sec Lord 
 
 C. 238, 264, 208, per Lord Cran- Cairns' opiuion. 
 
 worth, C, and .sec per Loz'd Wens- [h) Lord Blackburn, 3 App. Ca. 
 
 leydalc at pp. 305 — 6. at p. llol. In addition to cases 
 
 (c) Winn v. BhJI, 7 Cli. D. 29. uh'eady cited see Lewis v. JJiass, 
 
 (/■) Jame.s, L.J. in Bunnvadl v. (0. A.) 3 Q. B. D. GG7. 
 
 Jenkins, 8 Cli. 1). 70, 73.
 
 ■UNCERTAINTY OF mOMTSE. 43 
 
 cTefinito meaning tliero is nothing to go upon. The parties 
 may liavo como to a real agroomont, but thoy must take 
 the consequences of not having made it intelligible. Thus 
 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 
 another 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 (i). Questions of this kind, however, 
 as well as those we spoke of in the last paragraph, arise 
 chiefly where the alleged contract is evidenced by writing ; 
 and further, the importance of the rule depends chiefly 
 if not wholly on the more general rule of evidence which 
 forbids the contents or construction of an instrument in 
 writing to be varied or supplemented by word of mouth. 
 Certaiu aspects of this rule will come before us in a later 
 chapter. On the rules of construction in general we 
 do not enter ; but we may mention shortly as a thing to 
 be borne in mind, that words are to be taken in the 
 sense in which they were understood by the parties 
 using them ; and that, in the absence of anything to show 
 that a different meaning was contemplated, is the sense 
 in which a reasonable man conversant with affairs of 
 the kind in which the contract is made would under- 
 stand them. The question then is, can such a sense 
 be arrived at with reasonable certainty ? One or two 
 instances mil serve as well as many. An agreement to 
 sell an estate, reserving " the necessary land for making a 
 railway," is too vague {k). An agreement to take a house 
 " if put into thorough repair," and if the drawing-rooms 
 were " handsomely decorated according to the present 
 style," has also been dismissed as too uncertain to be 
 enforced (/). One might at first sight think it not beyond 
 the power of a reasonable man or twelve reasonable men 
 
 (') Gnlhhuj V. L'jun, 2 E. & Ad. (/) Ta>ihy v. rorlinglon, 7 D. M. 
 
 232. & G. 328. 
 
 [k) Pcarcc v. Wails, 20 Eq. 492.
 
 promises. 
 
 44 AGKEEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 fairly acquainted with dwelling-houses to say whether the 
 repairs and decorations executed in a particular house do 
 or do not answer the above description. It must be observed, 
 however, that this was a suit for specific performance ; a 
 remedy which was often refused by the Court of Chan- 
 cery without deciding whether or not a contract existed. 
 On the other hand an agreement to execute a deed of 
 sej^aration containing " usual covenants " is not too vague 
 to be enforced {m). 
 Illusory To this head those cases are perhaps best referred in 
 
 which the promise is illusory, being dependent on a con- 
 dition which in fact reserves an unlimited option to the 
 promisor. " Nulla promissio potest consistere, quae ex 
 voluntate promittentis statum capit " {a). Thus where a 
 committee had resolved that for certain services " such 
 remuneration be made as shall be deemed right," this 
 gave no right of action to the person who had performed 
 the services ; for the committee alone were to judge 
 whether any or what recompense was right (o). More- 
 over a promise of this kind, though it creates no enforce- 
 able contract, is so far effectual as to exclude the promisee 
 from falling back on any contract to pay a reasonable 
 remuneration which would be inferred from the transaction 
 if there were no express agreement at all. In Rohois v. 
 Smith (p) there was an agreement between A. and B. that 
 B. should perform certain services, and that in one event 
 (let us say no. 1) A. shoidd pay B. a certain salary, but that 
 in another event (no. 2) A. should pay B. whatever A. might 
 think reasonable. Event no. 2 having happened, the 
 Court held there was no contract which B. could enforce. 
 Services had indeed been rendered, and of the sort for 
 which people usually are paid and expect to be paid ; so 
 that in the absence of express agreement there would have 
 
 (m) Hart v. Hart, IS Ch. D. 670, (o) Taylor v. lirnccr, 1 M. & S. 
 
 C64. 290. 
 
 {n) B. -15,1. do verb. oLl. 108, \\. [p) \ II. i N. 315, 28 L. J. Ex, 
 
 161.
 
 UNCERTAINTY OF I'UOMISE. 45 
 
 been a good cause of action for reasonable reward. But 
 here B. had expressly assented to take whatever A. should 
 think reasonable (which might bo nothing), and had thus 
 precluded himself from claiming to have whatever a jury 
 should think reasonable. It would not be safe, however, 
 to infer from this case that under no cu'cumstances what- 
 ever can a promise to give what the promisor shall think 
 reasonable amount to a promise to give a reasonable reward, 
 or at all events something which can bo found as a fact 
 not to be illusory. The circumstances of each case (or in 
 a written instrument the context) must be looked to for 
 the real meaning of the parties ; and " I leave it to you " 
 may well mean in particular circumstances (as in various 
 small matters it notoriously does), "I expect what is reason- 
 able and usual, and I leave it to you to find out what that 
 is," or, " I expect what is reasonable, and am content to 
 take your estimate (assuming that it will be made in good 
 faith and not illusory) as that of a reasonable man " (q). 
 
 Another somewhat curious case of an illusory promise 
 (though mixed up to some extent with other doctrines) is 
 Moorl/oiisc V. Colvin (r). There a testator, having made 
 a Avill by which he left a considerable legacy to his 
 daughter, WTote a letter in which he said, after mentioning 
 her other expectations, " this is not all : she is and shall 
 be noticed in my Avill, but to what further amount I 
 cannot precisely say." The legacy was afterwards revoked. 
 It was contended on behalf of the daughter's husband, 
 to whom the letter had with the testator's authority been 
 communicated before the marriage, that there was a con- 
 tract binding the testator's estate to the extent of the 
 legacy given by the will as it stood at the date of the 
 letter. But it was held that the testator's lanffuas'e 
 expressed nothing more than a vague intention, although 
 
 (q) Sack a case (if it can be sup- was for the jury to ascertain how- 
 ported, see the remarks on it in much the defendant, acting bomt 
 Hoberts v. Smith) was Bryant v. ^c?c,wouldoroughttohaveawarded. 
 Flight, 5 M. & W. 114, where the {r) 1,5 Bcav. 311, 348 ; affd. by 
 majority of the Court held that it L.JJ., ib. 350, n.
 
 46 
 
 AGREEMENT, TROPOSAI,, AND ACCEPTANCE. 
 
 it would liave been binding bad it referred to tbe specific 
 sum tben standing in tbe will, so as to fix tbat sum as a 
 minimum to be expected at all events. 
 
 " He expressly promises sucli provision only as he in his will and 
 pleasure shall think fit. If, on her marriage, the testator had said, 
 * I will give to my child a proper and sufficient provision,' the Court 
 might ascertain the amount ; but if the testator had said, ' I will give 
 to my child such a provision as I shall choose,' would it bo proper 
 for the Court (if he gave nothing) to say what he ought to have given ? " 
 
 Tacit ac- 
 ceptance 
 of contract 
 must be 
 unambi- 
 guous. 
 
 Cases of 
 special 
 conditions 
 on tickets. 
 
 Acceptance hy Conduct. 
 
 Conduct wbicb is relied on as constituting the accept- 
 ance of a contract must (no less than words relied on for 
 tbe same purpose) be unambiguous and unconditional («) . 
 
 Where the proposal itself is not express, then it must 
 also be shown that the conduct relied on as convejdng the 
 proposal was such as to amount to a communication to 
 the other party of the proposer's intention. Difficult 
 questions may arise on this point, and in particular have 
 arisen in cases where public companies entering into con- 
 tracts for the carriage or custody of goods have sought to 
 limit their liability by sx3ecial conditions printed on a 
 ticket delivered to the passenger or depositor at the time 
 of making the contract. The tendency of the earlier 
 cases on the subject is to hold that (apart from the statu- 
 tory restrictions of the Eailway and Canal Traffic Act, 
 1854, which do not apply to contracts with steamship 
 companies, nor to contracts with railway companies for the 
 mere custody as distinguished from the carriage of goods) 
 such conditions are binding. A strong opposite tendency 
 is Bh.oyfn in Ilendcri^on v. 8tevenson (f), where the House 
 of Lords decided that in the case of a passenger travelling 
 by sea with his luggage an indorsement on his ticket 
 
 (.s) Warner \. IFiUhiffloii, SDrcw. 
 523, 533. 
 
 {I) L. n. 2 Sc. & J). -170 (1875). 
 Lord Chelmsford's and Lord lla- 
 thcrloy's dicla (pp. 477, 47D) go 
 farther, and suggest that the con- 
 
 tract is complete before the ticket is 
 delivered at all, so that some other 
 communication of tlie special terms 
 would liave to bo shown. But the 
 later cases have not adopted this 
 view.
 
 TACIT ACCErTANCE OF C0^"1)IT10^-S. 47 
 
 stating that tlio shipowners will not be liable for loss does 
 not prevent him from recovering- from loss caused by their 
 negligence, unless it appears cither that he knew and 
 assented to the special terms, or at any rate that ho knew 
 there were some special terms and was content to accept 
 them without examination. Since this tliere have been 
 reported cases arising out of the deposit of goods, for safe 
 custody or otherwise, in exchange for a ticket on which 
 were endorsed conditions limiting the amount of the 
 receiver's liability {u). The result, as it stands at present, 
 appears to be that it is a question of fact in each case 
 whether the notice given by the depositee was reasonably 
 sufficient to inform the depositor at the time of making 
 the contract that the depositee intended to contract only 
 on special terms. A person who, knowing this (.r), enters 
 into the contract, is then deemed to assent to the special 
 terms ; but this, again, is probably subject to an implied 
 condition that the terms are relevant and reasonable. It 
 cannot be said that tho subject is yet free from doubt. 
 
 («) Harris v. G, JF. li. Co. 1 Q. cases, a new variety of it should be 
 
 B. D. 515 ; Far/icr v. S. E. H. Co. ; introduced in a question of pure 
 
 Gabdl V. S. E. R. Co., 2 0. P. D. common law. Compare Ulpiaii's 
 
 416, revg. in Far/ccr's ca. the judg- remai-ks on a fairly analogous case, 
 
 ment of the C. P. Div. 1 C. P. D. D. ll, 3, de inst. act. 11, § 2, 3. 
 
 CIS. (Compare EarJce v. S. E. It. De ciuo palam proscriptum fucrit, 
 
 6'o., 5 C. P. D. 1); JFat/diis V. El/- ne cum eo coutrahatur, is jirae- 
 
 vnll, 10 Q. B. I). 178, where the positi loco non habetur. 
 
 former cases are fully reviewed by Proscribere palam sic acci2:)imus : 
 
 Stephen, J. claris Uteris, imdc de piano recte 
 
 (^) Are reasonable means of know- legi possit, ante tabcrnam scilicet, 
 
 ledge equivalent to actual know- vel auto eum locum, in quo nego- 
 
 ledge ? It seems better on principle tiatio exercctur, non in loco remoto, 
 
 to say that actual knowledge may be sod in evidenti .... Certesiquis 
 
 inferred as a fact from reasonable dicat ignorasse se litoras, vel non 
 
 means of knowledge, and inferred obscrvasse quod propositum crat, 
 
 against the bare denial of the party cum multi leg'erent, cumque palam 
 
 whose interest it was not to know. esset propositum, non audietur. One 
 
 This is one of tho rules of evidence cannot help observing that before 
 
 which are apt in particidar dejiart- the recent cases on the siibject the 
 
 inents to hardeuin to rules of law ; conditions printed by railway com- 
 
 aud tho judgment in Watkins v. panics on their tickets, and the 
 
 Ejjmill (10 Q. B. D. at p. 188) corresponding notices exhibited by 
 
 certainly tends in this direction. them, were far from being " claria 
 
 It would be curious however if, Uteris, undo do piano recte legi 
 
 after "constructive notice" has possit," or "in loco evidenti." 
 
 been justly discredited in equity They are still not always so.
 
 48 AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 As to Tlie ordinary rules of proposal and acceptance do not 
 
 by deed, apply, as we said at the beginning of this chapter, to 
 promises made by deed. It is established by a series 
 of authorities which appear to be confirmed by the ratio 
 decidendi of Xenos v. Wichham {>/), in the House of 
 Lords (though perhaps the doctrine was not necessary for 
 the decision itself), that a promise so made is at once 
 operative without regard to the other party's acceptance. 
 It creates an obligation which whenever it comes to his 
 knowledge affords a cause of action without any other 
 signification of his assent, and in the meanwhile it is 
 irrevocable. Nearly all the cases, it is true, were on 
 instruments involving matter of conveyance as well as of 
 contract. But no distinction is made or suggested on that 
 ground. The general principles of contract are, however, 
 respected to this extent, that if the promisee refuses his 
 assent w^hen the promise comes to his knowledge the con- 
 tract is avoided. 
 
 " If A. make an obligation to B., and deliver it to C. to 
 the use of B., this is the deed of A. presently ; but if C. 
 offers it to B., then B. may refuse it in jxds " {i.e. with- 
 out formality) "and thereby the obligation will lose its 
 force "(:;). 
 
 (y) L. E,. 2 H. L. 296. The tion of the policy was the accep- 
 
 previous cases were Doe d. Garnons tance of the plaintiffs' proposal, 
 
 V. Kjiight, 5 B. & C. 671 (a mort- and the plaintiffs' broker was their 
 
 gage) ; Exton v. Scott, 6 Sim. 31 (the agent to receive communication of 
 
 like) ; Hallx. Palmer, 13 L. J. Ch. the acceptance. But that ground 
 
 352 (bond to secvire annuity after is distinctly not relied upon in the 
 
 oh]igov's,(\.eaxh); FIctcherY. Fletcher, opinions of the Lords: see at 
 
 14 L. J. Ch. 66 (covenant for settle- pp. 320, 323. 
 
 ment to be made by executors.) As {z) Butler and B(rker\<i ca., 3 Co. 
 
 to Xenos v. IFickham, that case Rep. 26, quoted by Blackburn J., 
 
 might have been decided on the L. K. 2 H. L. at p. 312. 
 ground that the company's execu-
 
 ( ^i' ) 
 
 CHAPTER II. 
 
 Capacity of Parties. 
 
 All statements about legal capacities and duties are Variations 
 taken, unless the contrary be expressed, to be made with i^iper^onal 
 
 . . ^ . capacity. 
 
 reference to " lawful men," citizens, that is, who are not in 
 any manner unqualified or disqualified for the full exer- 
 cise of a citizen's normal rights. There are several ways 
 in which persons may be or become incapable, wholly or 
 partially, of doing acts in the law, and among other things 
 of becoming parties to a binding contract. All persons Disabili- 
 must attain a certain a^e before they are admitted to full *^®f °* , 
 
 c • 1 1 • • • PI- natural 
 
 freedom of action and disposition of their property. This persons : 
 is but a necessary recognition of the actual conditions of ^'^'^^' 
 man's life. The age of majority, however, has to be fixed 
 at some point of time by positive law. By English law it 
 is fixed at twenty-one years ; and every one under that 
 age is called an infant (Co. Lit. 171 h). 
 
 Every woman who marries has to sustain, as incident to Coverture, 
 her new status, technically called covertm-e, a loss of legal 
 capacity in various respects ; a loss expressed, and once 
 supposed to be sufficiently explained, by the fiction that 
 husband and wife are one person. 
 
 Both men and women may lose their legal capacity, insanity, 
 permanently or for a time, by an actual loss of reason. ^^°' 
 This we call insanity when it is the result of established 
 mental disease, intoxication when it is the transient effect 
 of drink or narcotics. Similar consequences, again, may 
 be attached by provisions of positive law to conviction for 
 
 p. E
 
 50 
 
 CAPACITY OF PARTIES. 
 
 Extension 
 of natural 
 capacity : 
 agency. 
 
 criminal offences. Deprivation of civil rights also may be, 
 and lias been in England in some particular cases, a sub- 
 stantive penalty ; but it is not thus used in any part of our 
 law now in practical operation. 
 
 On the other hand, the capacity of the " lawful man " 
 receives a vast extension in its application, while it remains 
 unaltered in kind, by the institution of agency. One man 
 may empower another to perform acts in the law for him 
 and acquire rights and duties on his behalf. By agency 
 the individual's legal personality is multiplied in space, 
 as by succession it is continued in time. The thing is now 
 so familiar that it is not easy to realize its importance, or 
 the magnitude of the step taken by legal theory and practice 
 in its full recognition. We may be helped to this if we 
 remember that in the Eoman system there is no law of 
 agency as we understand it. The slave, who did much 
 of what is now done by free servants and agents, was 
 regarded as a mere instrument of acquisition for his 
 owner, except in the special classes of cases in which 
 either slaves or freemen might be in a position analogous, 
 but not fully equivalent, to that of a modern agent. As 
 between the principal and his agent, agency is a special 
 kind of contract. But it differs from other kinds of con- 
 tract in that its legal consequences are not exhausted by 
 performance. Its object is not merely the doing of speci- 
 fied things, but the creation of new and active legal 
 relations between the principal and third j)ersons. Hence 
 it may fitly have its place among the conditions of con- 
 tract in general, though the mutual duties of principal and 
 agent belong rather to the treatment of agency as a species 
 of contract. 
 
 Artificial 
 persons. 
 
 While the individual citizen's powers are thus extended 
 by agency, a great increase of legal scope and safety is 
 given to the conjoint action of many by their association 
 in a corporate body or artificial person. The develo2:)ment 
 of corporate action presupposes a developed law of agency,
 
 CONTRACTS OF INFANTS. 51 
 
 since a corporation can manifest its legal existence only 
 tlii'ough the acts of its agents. And as a corporation, in 
 virtue of its perpetual succession and freedom from all or 
 most of the disabilities which may in fact or in law affect 
 natural persons, has powers exceeding those of a natural 
 person, so those powers have to be defined and limited by 
 sundry rules of law, partly for the protection of the indi- 
 vidual members of the corporation, partly in the interest 
 of the public. 
 
 We proceed to deal with these topics in the order indi- 
 cated : and first of the exceptions to the capacity of natural 
 persons to bind themselves by contract. 
 
 I. Infants. 
 
 An infant is not absolutely incapable of binding himself, infants— 
 but is, generally speaking, incapable of absolutely binding city^tobind 
 himself by contract (a). His acts and contracts are void- tliemseives 
 able at his option, subject to certam statutory and other tract, 
 exceptions, which are partly definite, partly not definable General 
 in terms but capable of reasonable definition in practice, of the law. 
 and partly both indefinite and doubtful. The following 
 seems the nearest approach to a statement in general terms 
 that can safely be made. 
 
 By the common law a contract made by an infant is 
 generally voidable at the infant's option, such option to be 
 exercised either before {b) his attaining his majority or 
 within a reasonable time afterwards. 
 
 Where the obligation is incident to an interest (or at all 
 events to a beneficial interest) in property, it cannot be 
 avoided while such interest is retained. 
 
 Exceptions — 
 
 A. Void agreements. 
 
 By the Infants' Belief Act, 1874, loans of money to 
 
 [a] Stated in this form by Haj'cs, {b) As to this see p. 59, below. 
 
 J., 14 Ir. C. L. R., at p. 35G. 
 
 e2
 
 52 CAPACITY OF PARTIES. 
 
 infants, contracts for tlie sale to them of goods other than 
 necessaries, and accounts stated with them are absolutely 
 void ; and no action can be brought on a ratification of 
 anij contract made dui'ing infancy. 
 
 (When the agreement of an infant is such that it 
 cannot be for his benefit, it has been said to be absolutely 
 void at common law ; but this distinction is believed to be 
 exploded by modern authorities.) 
 
 B. Valid contracts. 
 
 An infant's contract is valid if it appears to the Court 
 to be beneficial to the infant, and in particular if it is for 
 necessaries. 
 
 Explanation. — " Necessaries " include all such goods, 
 commodities, and services as are reasonably necessary for 
 the use and benefit of a person in the circumstances and 
 condition of life of the contracting party. 
 
 Moreover in certain cases infants are enabled to make 
 binding contracts by custom or statute. 
 
 An infant is not liable for a wrong arising out of or 
 immediately connected with his contract, such as a frau- 
 dulent representation at the time of making the contract 
 that he is of full age. But an infant who has represented 
 himself as of full age is bound by payments made and acts 
 done at his request and on the faith of such representations, 
 and is liable to restore any advantage he has obtained by 
 such representations to the person from whom he has 
 obtained it. 
 
 Of infants' 1- Of t^^*^ Contracts of infants in general at common law, 
 contracts ^^^^i ^^,5 afcctccl hi the Act of 1874. 
 
 in general: '' ^ 
 
 and as to j^ -^'^ ]jq Convenient to depart somewhat from the 
 
 Bupposed PIP- 
 
 distinction order of the foregoing general statement for the purpose of 
 
 are whoHy Considering this whole subject together. It has been com- 
 
 void. monly said that an agreement made by an infant, if such 
 
 that it cannot bo for his benefit, is not merely voidable 
 
 but absolutely void ; though in general his contracts are
 
 CONTRACTS OF INFANTS. 53 
 
 only voidable at his option (c). But this distinction is in 
 itself unreasonable, and is supported by little or no real 
 authority, while there is considerable authority against it. 
 The unreasonableness of it seems hardly to need any 
 demonstration. The object of the law, which is the pro- 
 tection of the infant, is amply secured by not allowing the 
 contract to be enforced against him during ]iis infancy, 
 and leaving it in his option to affirm or repudiate it at his 
 full age {(!). Moreover the distinction is arbitrary and 
 doubtful, for it must always be difficult to say whether a 
 particular contract cannot possibly be beneficial to the 
 party. As for the authorities, the word void is no doubt 
 frequently used : but then it is likewise to be found in 
 cases where it is quite settled that the contract is in truth 
 only voidable. And as applied to other subject matters it 
 has been held to mean only voidable in formal instru- 
 ments (e) and even in Acts of Parliament (_/). Thus the 
 language of text-writers, of judges, and even of the legis- 
 latm^e, is no safe guide apart from actual decisions. 
 
 But when we look at the decisions they appear to Examina- 
 establish in the cases now in question only that the con- thoi-ities?" 
 tract cannot be enforced against the infant, or some other ''^^ ^° 
 collateral point equally consistent with its being only void- 
 able, except when they show distinctly that the contract 
 is voidable and not void. Thus an infant's bond with a 
 penalty and conditioned for the payment of interest has 
 been supposed to be wholly void ; but nothing more is 
 decided than that being under seal it cannot be ratified 
 save by an act of at least equal solemnity with the original 
 instrument : in the case referred to one judge (Bayley, J.) 
 
 (c) Another distinction is made {e) Lincoln College' sCa.'iCo.'Re'^. 
 
 as to deeds takingcomplete effect by 59 5; Doe d. Bryan v. Bancks, 4 B. 
 
 delivery or otherwise. See Shepp. & Aid. 401 ; Malins v. Freeman, 4 
 
 Touchst. 233 ; Co. Lit. 51 l>, note; Bmg. N. C. 395. 
 3 BuiT. 1805 ; 2 Dr. & W. 340. But (/) Corn-pave Davenport y.Ucff. (J. 
 
 this is of little practical importance, C, from Queensland), 3 App. Ca. at 
 
 and not material to the present p. 128, with Governors of Magdalen 
 
 subject. Hospital v. Knotts, 4 App. Ca. 324, 
 
 {d ) We are now speaking only of in which case this latitude has at 
 
 the common law. last been restrained.
 
 54 CAPACITY OF PARTIES. 
 
 rested liis judgment simply on the law stated hy Coke, 
 wlio only says that an infant's bond with a penalty, even 
 if given for necessaries, shall not bind him (g). A stronger 
 case is Thornton v. UUngicoyth (//), where the judges said 
 Purchase in terms that an infant's contract to buy goods for the pur- 
 trade?*^^"" poses of trade is absolutely void, not voidable only : but all 
 that had to be decided was that a ratification after action 
 brought was no answer to the defence of infancy : and the 
 dicta, as pointed out by Mr. Benjamin, are inconsistent 
 with a former case of higher authority (but which seems 
 not to have been cited) where an infant was allowed to sue 
 on a trading contract for the purchase of chattels, the only 
 special circumstance being that he had already paid part 
 of the price, so that it was clearly for his benefit that he 
 should be able to enforce the contract. The decision was 
 put on this ground in the Court of K.B. by Lord Ellen- 
 borough, but the broader opinion was expressed by Dampier, 
 J., that the other party could in no case avoid the contract, 
 and that the contracts of infants are as to their vahdity 
 of two kinds only, those which are clearly for the infant's 
 benefit and therefore bind him, and those which are not so 
 and are voidable at his option. The Court of Exchequer 
 Chamber afiirmed the judgment mthout calling on counsel 
 to support it, holding that " the general law is that the 
 contract of an infant may be avoided or not at his own 
 Contract Option," and that this case was no exception (/). In a much 
 of service. ]^j-gj, ^g^gg ^]^q following opinion was given by the Court of 
 Queen's Bench on the conviction of a servant for unlaw- 
 fully absenting himself from his master's employment : — 
 
 " Among many objections one appears to us clearly fatal. He was an 
 infant at the time of entering into the agreement, which authorizes the 
 master to stop his wages when the steam engine is stopped working for 
 any cause. An agreement to serve for wages may be for the infant's 
 
 {()) Baylis V. Bweley, 3 M. & S. (A) 2 B. & C. 824. 
 
 477 ; Co. Lit. 172 a. The case is (t) Beujamiu on Sale, 28; War- 
 
 not accepted without question in wick v. Jiriirc, 2 M. & S. 205, in Ex. 
 
 America: Parsons on Contracts, Ch. 6 Taunt. 118. 
 269 n.
 
 CONTRACTS OF INFANTS. 65 
 
 benefit (/.-) ; but an agreoment whicli compels him to servo at all times 
 dui-ing the terra but leaves the master free to stop his work and his 
 wages whenever he chooses to do so cannot be considered as beneficial to 
 the servant. It is inequitable and wholly void. The conviction must be 
 quashed " (l). 
 
 But this decided only that the agreement was not en- 
 forceable against the infant. Tlie Coiu-t cannot have meant 
 to say that if the master had arbitrarily refused to pay 
 wages for the work actually done the infant could not have 
 sued him on the agreement. Again, it is said that a lease Leases. 
 made by an infant, without reservation of any rent (or even 
 not reserving the best rent), is absolutely void. But this 
 opinion is strongly disputed in Bacon's Abridgment, and 
 also disapproved by Lord Mansfield, whose judgment Lord 
 St. Leonards has adopted as good law, though the actual 
 decision was not on this particular point in either case (ni). 
 And in a modern Irish case (n) it has been expressly 
 decided that at all events a lease made by an infant 
 reserving a substantial rent, whether the best rent or not, 
 is not void but voidable ; and further that it is not well 
 avoided by the infant granting another lease of the same 
 property to another person after attaining his full age. 
 The Court inclined to think that some act of notoriety 
 by the lessor would be required, such as entering, bringing 
 ejectment, or demanding possession; however there was 
 another reason, namely, that the second lease might be 
 construed as only creating a future interest to take effect 
 on the determination of the first. With regard to the first 
 reason it seems to have been thought not immaterial that 
 
 (k) It seems that prima facie it is infant." 
 so, even if it contains clauses im- {in) Bac. Ab. 4, 361 ; Zottch v. 
 
 posing penalties, or giving a power Farsons, 3 Burr. 1794 (whei'e the 
 
 of dismissal, in certain events : decision was that the reconveyance 
 
 Woody. Feincicl-, 10 M. & W. 195; of a mortgagee's infant heir, the 
 
 Zesliey. Fitzpatrick, 3 Q.B. D. 229, mortgage being properly paid off, 
 
 distinguishing Reg. v. Lord (next could not be avoided by his entry 
 
 note). before full age) : Alien v. Alien, 2 
 
 (/) Beg. V. Lord, 12 Q. B. 757, 17 Dr. & W. 307, 340. 
 L. J. M. C. 181, wliere the head (m) Slator v. Brady, 14 Ir. C. L. 
 
 note rightly says "void against the 61.
 
 56 CAPACITY OF TARTIES. 
 
 a freehold estate (for the life of the lessor or twentj-one 
 years) had passed by the original lease. There is good 
 English authority for the proposition that if a lease made 
 by an infant is beneficial to him he cannot avoid it at 
 Sale, &c., all (o). It apppears to be agreed that the sale, pur- 
 chase (p), or exchange {q) of land by an infant is both as 
 to the contract and as to the conveyance only voidable at 
 his option. 
 
 Partner- Again, there is no doubt that an infant may be a partner 
 sharehold- or shareholder (though in the latter case the company may 
 ^S' refuse to accept him) (r) ; and though he cannot be made 
 
 liable for partnership debts during his infancy, he is bound 
 by the partnership accounts as between himself and his 
 partners and cannot claim to share profits without contri- 
 buting to losses. And if on coming of age he does not 
 expressly disaffirm the partnership he is considered to 
 affirm it, or at any rate to hold himself out as a partner, 
 and is thereby liable for the debts of the firm contracted 
 since his majority (s). 
 
 The liability of an infant shareholder who does not 
 repudiate his shares to pay calls on them rests, as far as 
 existing authorities go, on a somewhat different form of 
 the same principle (of which afterwards). As to contri- 
 bution in the winding up of a comjDany, Lord Justice 
 Lindley (2. 1356) " is not aware of any case in which an 
 infant has been put on the list of contributories. Upon 
 principle, however, there does not appear to be any reason 
 why he should not, if it be for his benefit ; and this, if 
 there are surplus assets, might be the case." Otherwise 
 lie cannot be deprived of his right to repudiate the shares, 
 unless perhaps by fraud ; but in any case if he " does not 
 
 (o) 3f addon Y. White, 2 T. R. 159. infant after the infant has trans - 
 
 \p) Co. Lit. 2 b, Bac. Ab. Infancy f erred over to a person sui iuris : 
 
 I. 3 (4, 360). Gooch's ca. 8 Ch. 266. And see 
 
 {q) Co. Lit. 51 b. Lindley, 2. 1405—6. 
 
 (»•) But the company cannot dis- (.s) Lindley, 1. 80 — 83 ; Goode v. 
 
 pute the validity of a transfer to an Harrison, 5 B. & Aid. 147.
 
 co>;tracts of infants. 57 
 
 repudiate his shares, either while he is an infant or witliin 
 a reasonable time after he attains twenty-one, he will be a 
 contributory," and still more so if after that time he 
 does anything showing an election to keep the shares. On 
 the whole it is clear on the authorities (notwithstanding a 
 few expressions to the contrary), that both the transfer of 
 shares to an infant and the obligations incident to his 
 holding the shares are not void but only voidable (/). 
 
 Marriage is on a different footing from ordinary con- Marriage. 
 tracts (u), and it is hardly needful to say in this place that 
 the possibility of a minor contracting a valid marriage has 
 never been doubted in any of our Courts. Even if either 
 or both of the parties be under the age of consent (four- 
 teen for the man, twelve for the woman) the marriage is 
 not absolutely void, but remains good if when they are 
 both of the age of consent they agree to it (.r). But the 
 Marriage Act, 4 Geo. 4, 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 (//). 
 
 As to promises to marry and marriage settlements, it Promises 
 has long been familiar law that just as in the case of his and^mar"- 
 other voidable contracts an infant may sue for a breach of "^g^ set- 
 promise of marriage, though not liable to be sued (s). An 
 infant's marriage settlement is not binding on the infant 
 
 (i) Lumsdeti's ca. 4 Ch. 31 ; five and twenty-one respectively. 
 
 Gooch's ca. 8 Ch. 266; cp. p. G4, (Code Civ. 144 sqq.) But this con- 
 
 infra. sent may be dispensed with in 
 
 [u) Continental writers have various ways by matter subsequent 
 
 wasted much ingenuity iu debating or lapse of time: see art. 182, 183, 
 
 with which class of contracts it 185. The marriage law of other 
 
 should be reckoned. Sav. Syst. ^141 states (except some where the canon 
 
 (3. 317); Ortolan on Inst. 2. 10. law still prevails) appears to differ 
 
 {x) Bacon, Abr. 4. 336. little on the average from the law 
 
 [y) In most Continental countries of France in this particidar. 
 
 the earliest ago of legal marriage is (2) Bacon, Abr. Infancy and Age, 
 
 fixed: in France it is eighteen for 1. 4 (4. 370). Per Lord Ellen- 
 
 the mnn, fifteen for the woman, and borotigh, Warwick v. Uruce, 2 M. & 
 
 consent of parents or lineal ancestors S. 205. 
 is required up to the ages of twenty-
 
 58 
 
 CAPACITY OF PARTIES. 
 
 Negoti- 
 able in- 
 struments. 
 Accounts 
 stated, and 
 opinion of 
 the Court 
 of Ex- 
 chequer 
 on the 
 general 
 question. 
 
 unless made under the statute (see pod^ p. 73), and the 
 Court of Chancery has no power to make it binding in the 
 case of a ward [a). A settlement of a female infant's 
 general personal 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 {b). And 
 particular covenants in an infant's settlement may be 
 vahd (c) . 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 inns {d). Again an 
 infant's contract on a bill of exchange or promissory note 
 was once supposed to be wholly void, but is now treated 
 as only voidable (e) . The same holds of an account stated ; 
 and here the decisive case is a strong authority in favour 
 of the general contention that a contract is not in any case 
 absolutely void by reason of the party's infancy. The 
 Court said : — 
 
 ' ' The argument on behalf of the defendant was that an account stated 
 by an infant is not merely voidable but actually void, so that no subse- 
 quent ratification can make it of any avail. But we can see no sound or 
 reasonable distinction in this respect between the liability of an infant 
 on an account stated and his liability for goods sold and delivered or on 
 any other contract . . . The general doctrine is that a party may after he 
 attains the age of twenty-one years ratify and so make himself liable on 
 contracts made during infancy. We think that on principle unopposed 
 by authority this may be done on a contract arising on an account stated 
 as well as on any other contract^^ (/). 
 
 Conclu- 
 siou : no 
 reason 
 holdin^ 
 any con- 
 tracts of 
 
 On the whole, then, we have seen that in several im- 
 
 for portant classes of eases (including some that were formerly 
 
 supposed exceptional) an infant's contract is certainly not 
 
 void : and we have also seen that there is not any clear 
 
 [a) Field v. Ifoorc, 7 D. M. G. 
 691,710. 
 
 (A) Davidson, Conv. 3, pt. 2, 728. 
 
 (c) Smith V. Lucas, 18 Ch. D. 531. 
 
 [d) Davies v. JDavies, 9 Eq. 468. 
 
 (r) Bylcs on Bills, 59 (ICthcd.) ; 
 undis2)uted in Harris v. if 'all, 1 Ex. 
 122. 
 
 (/) Williams v. JJ/oor, 11 M. icW. 
 256, 26-1, 266, 12 L. J. Ex. 253.
 
 CONTRACTS OF INFANTS. 59 
 
 authority for holding that in any case it is in fact void, infants 
 It is perhaps not necessary to offer any further justification c. L. 
 for refusing to admit an ill-defined and inconvenient class 
 of exceptions, of which no positive instance can be found {g) . 
 
 There is one exception to the rule that an infant may Infant 
 
 enforce his voidable contracts against the other party have 
 
 during his infancy, or rather there is one way in which he ^P'^"^° 
 ~ . . periorm- 
 
 cannot enforce them. Specific performance is not allowed ance. 
 at the suit of an infant, because the remedy is not mutual, 
 the infant not being bound {h). 
 
 An infant may avoid his voidable contracts (with prac- At -what 
 tically few or no exceptions) either before or within a may avoid 
 reasonable time after coming of age : the rule is that ^^^ ^°^" 
 " matters 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^) (/). However, where the natm^e 
 of the case admits of it, an infant's affirmation or repudia- 
 tion of his contract while he is still a minor is treated as 
 only provisional ; he cannot deprive himself of the right 
 to elect at full age, and only then can his election be con- 
 clusively determined (/.•). There is no express authority 
 for the saving words we have introduced into this proposi- 
 tion, but they are obviously required ; in the case of an 
 infant shareholder, for instance, the unqualified ajoplica- 
 tion of it might make it impossible for anybody to deal 
 with the shares until he came of age. Indeed there is no 
 lack of authority to show that here as in other cases, so 
 
 {(/) Parsons on Contracts (1st ed.), and JV. TF. R. v. IPlfichael, 5 Ex. 
 
 244, Mr. Leake, who takes no no- 114, 20 L. J. Ex. 97. As to an 
 
 tice whatever of the formerly cnr- infant being bound when he comes 
 
 rent doctrine, Sir WilHaui Anson of age by an acknowledgment made 
 
 (3rd ed. p. 104), and Mr. Wharton in a Court of Record, see Y. B. 20 
 
 (^§ 31, 36 — 42), are of the same & 21 Ed. 1, in the series of Clironi- 
 
 opinion. Contra HiUiard, 2. 129, cles and Memorials published under 
 
 and W. W. Story, § 101. the direction of the Master of the 
 
 [h] Flkjhty. JJolland, -iUuss. 298. Rolls, p. 320. 
 
 ((■) See per Parke, B., Ncivrijand {k) L. S; N. TF. R. v. M'MicJiael, 
 
 EnnisJciUen My. Co. v. Coombe, 3 Ex. sxipra ; Slater v. Trimble, 14 Ii'. C. 
 
 565, 18 L. J. Ex. 325 ; per Cm-. L. L. 342.
 
 60 
 
 CAPACITY OF PARTIES. 
 
 Money 
 paid under 
 avoided 
 contract, 
 when not 
 recover- 
 able. 
 
 far as the interests of third persons are concerned, and to 
 some extent also as regards acts done by the parties them- 
 selves on the faith of the contract, voidable means not 
 invalid until ratified, but valid until rescinded (/). If an 
 infant pays a sum of money under a contract, in considera- 
 tion of which the contract is wholly or partly performed 
 by the other party, he can acquire 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 lease (w), 
 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 {ii). 
 
 Infants' 
 Eelief 
 Act, 1874. 
 
 We must now consider the eifect of the Act of 1874 
 (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 goods supplied or to be supplied (other than contracts for 
 necessaries), and all accounts stated with infants, shall be absolutely void : 
 provided always that this 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. 
 
 Ratifica- 
 tion still 
 operative 
 
 The 2nd section supersedes the 5th section of Lord 
 Tenterdcn's Act (9 Geo. 4, c. 14) (o), by which no ratifica- 
 
 (/) Per Lord Colonsay, L. R. 2 
 II. L. 375. 
 
 {w] Jlohrifs V. Tilof/f/, 8 Taunt. 35, 
 508, S. C. Moore, 1. 406, 2. 552. 
 
 (n) Ex parte Taylor, 8 D. M. G. 
 254, 258. 
 
 (o) Since expressly repealed by 
 the Statute Law Revision Act, 
 1875, 38 & 39 Vict. c. 66.
 
 CONTRACTS OF INFANTS. Gl 
 
 tion of a contract made during infancy could bo sued upon for some 
 unless in writing and signed by the party to be charged. P^^P°^^^- 
 The new enactment forbids an action to be brought at all 
 on any such promise or ratification, and it applies to a 
 ratification since the Act of a promise made in infancy 
 before the passing of the Act {])), whether the agreement 
 is or is not one of those included in s. 1 (q). It probably 
 also prevents the ratification from being available by way 
 of set-off (r). This, however, is a different thing from 
 depriving 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 there were many cases where a 
 contract made during infancy might be adopted or con- 
 firmed without any ratification in writing so as to produce 
 important results. Thus in the case of a marriage settle- 
 ment the married 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 constituted : 
 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 (s). Again an infant partner 
 who does not avoid the partnership at his full age is, 
 as between himself and his partners, 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 disclaim may after his full age, 
 
 {p) Ex parte Kibble, 10 Ch. 373. rail, 5 C. P. T>. 410, by Lindley and 
 
 (q) Coxhead v. Mullis, 3 Q. B. D. Denman, JJ., diss. Lord Coleridge, 
 
 439. It is held, however, that in a C.J. 
 
 case which would before the Act {?•) liawlei/v.Eauiei/ {C. A.), 1 Q. 
 
 hare been one of ratification it may B. D. 460. 
 
 be left to the jury to say whether (s) Davics v. Davics, 9 Eq. 468, 
 
 the conduct of the parties amounts si/pra, p. 58. 
 
 to a new promise: Bitcham v. Wor-
 
 62 
 
 CAPACITY OF PARTIES, 
 
 Semhle, no 
 specific 
 perform- 
 ance for 
 either 
 party of 
 any con- 
 tract made 
 during 
 infancy. 
 
 EfPect of 
 proviso 
 as to new 
 considera- 
 tion. 
 
 Of s. 1, 
 
 making 
 
 certain 
 
 contracts 
 
 void. 
 
 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 it). 
 
 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 1874 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, 
 
 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, for the same reason that he cannot and formerly 
 could not do so sooner {u). 
 
 The proviso about new consideration was presumably 
 introduced by way of abundant caution, to prevent coloui'- 
 able evasions of the Act by the pretence of a new contract 
 founded on a nominal or trifling new consideration [x). 
 Where a substantial consideration appears on the face of 
 the transaction these words can hardly be supposed to 
 impose on the Court the duty of inquiring whether the 
 apparent consideration is the whole of the real considera- 
 tion. In the first section the words concerning the pur- 
 chase of goods are not free from obscurity. If we might 
 construe the Act as if it said " for pcujmcnt for goods 
 supplied," &c., it would be clear enough : but it is not so 
 clear what is the precise operation of an enactment that 
 
 (0 See pp. 5G, 61. 
 
 [u) Flighty. Bolhoid, 4 Russ. 298, 
 p. 59, supra. 
 
 {x) Yet is it effective for this pur- 
 pose? See Difc/iamv.TForrall,i).6l, 
 stiprn.
 
 CONTRACTS OF INFANTS. 63 
 
 contracts " for goods supplied or to be supplied," other 
 than necessaries, shall bo void. It seems to follow that no 
 property will pass 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 contract 
 ■was voidable, and ho was free to rescind it while it was 
 yet executory. But does it also follow that if the goods 
 are delivered no property passes, and that if they are paid 
 for the money may be recovered back ? Such a conse- 
 quence would be unreasonable, and is not required by the 
 policy of the statute, which is obviously to protect infants 
 from running into debt, and to discourage tradesmen and 
 others from giving credit to them, not to deprive them 
 of all discretion in making purchases for ready money. 
 It is certain that when a particular class of contracts is 
 simply declared to be unlawful, this does not prevent pro- 
 perty from passing by an act competent of itself to pass 
 it, though done in pursuance or execution of the forbidden 
 contract {y). In this case also it seems clear that the 
 delivery with intention to pass the property would pass it 
 apart from any question of contract, and such authorities 
 as Holmes v. Blogg (z) and Mv jyarte Taylor (a), where the 
 contract was only voidable but was afterwards rescinded, 
 would still be applicable, so that if the goods had been 
 accepted the money could not be recovered. On this more Qu. "Was 
 reasonable construction, however, it is difficult to see what 
 result is obtained by the first section which is not equally 
 well or better obtained by the second. At common law 
 the infant was not bound by any of the contracts sj)ecified 
 in the first section, unless he chose to bind himself at full 
 age : by the second section he cannot henceforth so bind 
 himself. No more complete protection can be imagined, 
 and the first section appears superfluous. Perhaps the 
 
 («/) Ayers v. South Auntralian [z) 8 Taunt. 508. 
 
 Banking Co., L. R. 3 P. C. 548,559. («) 8 D. M. G. 254, p. GO, sxjjra. 
 
 this neces- 
 sary?
 
 64 CAPACITY OF PARTIES, 
 
 first section may be read as giving a popular exposition of 
 the chief practical effects of the following one. 
 
 It is conceived that a hond, bill of exchange, or note 
 given by a man of full age, for which the consideration 
 was in fact a loan of money or the supply of goods not 
 necessaries during his infancy, would not be void under 
 s. l{b). But s. 2 would no doubt effectually prevent it 
 from being enforced, though perhaps the words are not 
 the most apt for that x^nrpose. 
 
 Liability 2, Of the Uahilitij of infants on obligations incident to 
 tions inci- interests in 2)ernia)icnt projjert//. 
 
 propertv ^^ ^^ ^^'^ ^^^® reported under various names in various 
 and espe- books (c), of which a sufficient account is given in the 
 ratlway^ ° judgment of the Court of Exchequer in L. 8f JV. W. Ry. 
 shares. (Jq^ y M' Michael (</), it was decided that an infant lessee 
 who continues to occupy till he comes of full age is 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 {e) . In recent times an important application 
 of this principle has been made in the case of infant 
 shareholders in railway companies. An infant is not 
 incapable of being a shareholder, and as such he is prima 
 facie liable when he comes of age to be sued for calls on 
 his shares, and he can avoid the liability only by showing 
 that he repudiated the shares either before attaining his 
 full age (/), or in a reasonable time afterwards {g). In 
 the first of the series of cases on this head some of the 
 judges seem to have thought that even an infant share- 
 holder was made absolutely liable by the general form of 
 
 {b) Cp. Flight V. Reed, 1 H. & C. (/) Neivry ^- Enniskillen Ey. Co. 
 
 703, 32 L. J. Ex. 265. v. Coomhe, 3 Ex. 565, 18 L. J. Ex. 
 
 (c) Kettle V. Eliot, &c. RoUe Ab. 325. 
 1, 731, K. ; Cro. Jac. 320 ; Brown- [g) A plea which merely alleged 
 
 low 120; 2 Bulst. 69. repudiation afterfuUagewas there- 
 
 {d) 5 Ex. 114 ; 20 L. J. Ex. 97. fore held bad in DiMin % Wicklow 
 
 (e) Evelyn v. Chichester, 3 Burr. Hy. Co. v. Black, 8 Ex. 181. 
 1717.
 
 CONTRACTS OF INFANTS. 65 
 
 tlie enactment in the Companies Clauses Consolidation 
 Act defining the liability of shareholders {h) . This view, 
 however, has since been declared erroneous and inconsistent 
 with the established rule that general words in statutes 
 are not to be construed so as to deprive infants, lunatics, 
 &c., of the protection given to them by the common law. 
 In this case the liability, though statutory, is still in the 
 nature of contract, and is subject to the ordinary rules as 
 to the competency of contracting parties. The true prin- 
 ciple is that 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 ho 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 it 
 is by no means clear that he could exonerate himself even 
 during his minority by showing that the interest was not 
 at the time beneficial, unless he actually disclaimed it (/) . 
 Comparing the analogous case of a lease, the Court said — ■ 
 " We think the more reasonable view of the case is that 
 the infant, even in the case of a lease which is disadvan- 
 tageous 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" (/.•). 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. 
 
 (A) LordDenman, C.J., andPat- conclusively determine liis interest 
 
 teson, J., in Cork c^- Baudoii Rij. Co. and not merely suspend it. 
 
 V. Casenove, 10 Q. B. 935. ik) Loud, ij- K. TJ\ Bij. Co. v. 
 
 (j) It is submitted that in such a M'JIichael, 5 Ex. 114, 20 L.J. Ex. 
 
 case the disclaimer if made would 97, 101.
 
 66 CAPACITY OF PARTIES. 
 
 The same results, except perhaps as to suing the share- 
 holder while still a minor, would follow from the general 
 principles of the law of partnership even if the company 
 in "which the shares were held had not any permanent 
 property. 
 
 Liability 3. Of the UahiUti/ of an infant when the contract is for 
 
 on benefi- i • i j^, 7 • 77 n ' 
 
 cial con- his oencjit, ana especiai/i/ jor necessaries. 
 tract. Qu. j^ j^^g^g jjeen laid down in general terms that if an agree- 
 the rule ? ment he for the benefit of an infant at the time, it shall 
 bind him (/). We are not aware, however, that this rule 
 has been applied in practice, except in the case of obliga- 
 tions coupled with interests in property (where it is not 
 clear, as above said, that the question of benefit is 
 material), and except so far as an infant's liability for 
 necessaries is founded on this reason. The rule has also 
 been expressed more widely in the converse form, that the 
 contract is binding unless manifestly to the infant's preju- 
 dice {m). But this, it is submitted, goes too far. The 
 contract before the Court was that of an apprentice with 
 a master ; and this and other cases (n) certainly show that 
 such a contract, or an ordinary contract to work for wages, 
 will, if it be reasonable, be considered binding on the 
 infant to this extent, that he may no less than an adult 
 incur the statutory penalties for unlawfidly absenting him- 
 self from his master's employment (0). But it is distinctly 
 laid down that an apprentice under age cannot be sued on 
 the covenants made by him in the indenture of appren- 
 ticeship except by the custom of London (p). Again there 
 are many conceivable cases in which it might be for an 
 
 • {I) Bacon Ab. Infancy, I. 3, 4, (0) In Zcslie v. Fitzpatrick, 8 Q. 
 
 360; Iladdoti v. JF/iilc, 2 T. R. 159. B. D. 229, a case of summary pro- 
 
 (m) Cooper v. Simmons, 7 H. & N. ceedings under the Employers and 
 
 707, 721 ; ^;«- Wilde, B. Not so Workmen Act, 1875, it may be 
 
 strongly put in the L. J. rei^ort, 31 collected that the facts were of the 
 
 L. J. M. C. 138, 1-14. same hind, though the employer's 
 
 [ti] ll'uod V. I'tHKick, 10 M. & W. plaint was in terms for a breach of 
 
 195. contract. 
 
 {p) Bacon Ab. Infancy A. 4. 340.
 
 infants: necessaries. 67 
 
 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 hardly 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 ; yet there is no doubt whatever that such a con- 
 tract would at common law be voidable at his option. Nor 
 has it ever been suggested that an infant partner or share- 
 holder is at liberty to disclaim at full age only in case the 
 adventure has been unprofitable or is obviously likely to 
 become so. However, inasmuch as since the Infants' 
 Eelief 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. 
 
 3^. Contracts for necessaries. Liability 
 
 The leading authority on this subject is now the *°^^^°^^- 
 judgment of the Exchequer Chamber in Eijdcr v. JFouib- 
 iccll (q), from which the following introductory statement 
 is taken : — 
 
 "The general rule of law is clearly established, and is that an 
 infant is 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 Fetcrs y. Fleming (r). 'From the 
 earliest time down to the present the word necessaries is not confined in 
 its strict sense to such articles as were necessary to the support of hfe, 
 but extended to articles fit to maintain the particular 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.' " 
 
 saries. 
 
 neces- 
 
 What in any particular case may fau-ly be called '^Tiat are 
 necessary in this extended sense, is what is called a 
 
 [q) L. R. 4 Ex. 32, 38 ; in the (r) 6 M. & W. at p. 4G. 
 
 Court below L. R. 3 Ex. 90. 
 
 f2
 
 68 CAPACITY OF PARTIES. 
 
 question of question of mixed fact and law. The provinces of tlie 
 
 aUdlawl^* Court and the jury respectively seem to he as we now 
 
 proceed to state. 
 
 The Court The station and circumstances of the defendant and the 
 
 thmo-s are particulars of the claim being first ascertained, it is then 
 
 prima facie fgp the Court to sav whether the things supplied are 
 necessary. .,. , . ^ ^ o 3 l \. 
 
 2)nma facie such as a jury may reasonably nna to be 
 
 necessaries for a person in the defendant's circumstances, 
 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.y are necessaries], and then whether there is any suffi- 
 cient 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 2)rima facie mere luxuries may become 
 necessaries if prescribed by medical advice (s). It is said 
 that in general the test of necessity is usefulness, and that 
 nothing can be a necessary which cannot possibly be useful. 
 It is obvious, however, that it is in truth a question of 
 common sense and experience what is or is not reasonably 
 required by a person in a given station and circumstances, 
 and one on which not much light can be thrown by the 
 statement in a general form of rules founded on extreme 
 cases. 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 reasonably 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 
 customs and usages of society (/) . 
 The jury If on these preliminary considerations the Court decides 
 th'^^ ^^rc ^^^^ there is evidence on which the supplies in question 
 
 (.s) See Whurlon v. Maclrnzic, 6 {t) L. E. 4 Ex. at p. 40. 
 
 Q. B. 606, 13 L. J. Q. B, 130.
 
 infants: necessaries. 69 
 
 may reasoiicably be treated as necessaries, then it is for in faot 
 the jury to say whether they were in fact necessaries for ^^^^^^'^^y- 
 the defendant under all the circumstances of the case (ii). 
 
 As a matter of common sense it seems relevant to this Supply 
 question whether the defendant was or was not already *™"^ '^^^^^ 
 
 •^ . . , . , . sources, 
 
 sufficiently provided with commodities of the particular how far 
 description, especially when we hear in mind that this °^^*^"^^- 
 exceptional liability for necessaries is admitted in the in- 
 terest not of the seller but of the infant buyer. The 
 weight of authority is in favour of admitting evidence to 
 this effect {j'), though it has also been thought that the 
 defendant ought to show that the plaintiff had notice of 
 the state of things {//). On the whole the better opinion 
 is that the question whether goods supplied are necessaries 
 is a question of fact, depending (among other conditions) 
 on the extent to which the party is already supplied with 
 similar goods ; that if they 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 that on 
 the other hand, 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 positive duty to make inquiries, but he omits to do so at 
 his peril (s). 
 
 It seems, however, that the defendant having an income 
 out of which he might keep himself supplied with neces- 
 saries for ready money is not equivalent to his being 
 actually supplied, and does not prevent him from con- 
 tracting for necessaries on credit (a). 
 
 (ti) It -would seem from Eijder v. 410. 
 
 7Fo»rtS«'c/^ (s^^jOrff) that the power of {ij) Itydcr \. WomhweU, L. !R. 3 
 
 the Court to control or review the Ex. 90 ; (the point was left open in 
 
 finding of the jury is neither more Ex. Ch., L. R. 4 Ex. 42) ; dissented 
 
 nor less in this than in any other from in Barnes v. Toye (last note), 
 
 class of cases. and Brayshaw v. Eaton approved. 
 
 {x) Brayshaw v. Eaton, 7 Scott, (s) See Brayshaw v. Eaton, 7 
 
 183, Foster v. Redgrave, L. R. 4 Ex. Scott, 183. 
 
 35, «., Barnes v. Toye, 13 Q. B. D. {a) Burghart v. Hall, 4 M. & W.
 
 70 
 
 CAPACITY OF PARTIES. 
 
 Apparent 
 means of 
 buyer not 
 material. 
 
 It would be natural for jm-ies, if not warned against it, 
 to fall into a way of testing the necessary 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 is not altogether without 
 countenance from authority (a). It is conceived, however, 
 that this is quite erroneous, and that in truth the know- 
 ledge 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 jiiry will be whether, being of a general class or 
 description allowed by the Court as necessary, the parti- 
 cular 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 Byder v. Womhu-cU [h) the 
 Court of Exchequer Chamber held, reversing the judgment 
 of the majority below on this point, that because a young 
 man must fasten his wristbands somehow it does not 
 follow that a jury are at liberty to find a pair of jewelled 
 solitaires at the price of 25/. to be necessaries even for a 
 young man of good fortune. There is a point of costliness 
 and luxury — not of course to be verbally defined — beyond 
 which an article, though belonging to a useful and even 
 necessary class, and capable of real use, cannot be called 
 necessary. 
 
 727. Contra 3fortam v. Ball, 6 
 Sim. 495. The doctrine there laid 
 down seems superfluous, for the 
 supplies there claimed for (such as 
 20"J pair of gloves in half a year) 
 could not have been reasonably 
 
 found necessary in any case. 
 
 (ff) inlJaltoxy. Gib, 7 Scott, 117, 
 much weight is given to the appa- 
 rent rank and circumstances of the 
 party. 
 
 {b) L. K. 4 Ex. 32.
 
 INFANTS : NECESSARIES. 71 
 
 The general result appears to stand thus : — Results. 
 
 When it is sought to enforce a contract against an 
 infant on the ground that it was for necessaries, then the 
 priina facie necessity of the commodities supplied is a 
 question for the Coui't. 
 
 If the Court holds them not prima facie necessary, 
 evidence may be given of special circumstances rendering 
 them in fact necessary, and the legal sufficiency of such 
 evidence is a question for the Court. 
 
 Subject as above, the necessity of the commodities is a 
 question of fact. 
 
 Commodities of a description in itself necessary are not 
 necessaries when the buyer is already supplied with as 
 much of the like commodities as he can reasonably want. 
 
 Hitherto we have spoken of a tradesman supplying What the 
 goods, this being by far the most common case. But the ces^ries'^'" 
 range of possible contracts for " necessaries " is a much includes. 
 wider one. "It is clearly agreed by all the books that 
 speak of this matter that an infant may bind himself to 
 pay for his necessary meat, drink, apparel, physic [in- 
 cluding, of course, fees for medical attendance, &c., as well 
 as the mere price of medicines], and such other necessaries ; 
 and likewise for his good teaching and instruction, whereby 
 he may profit himself afterwards" (r). Thus learning a 
 trade may be a necessary, and on that principle an infant's 
 indenture of apprenticeship has been said to be binding on 
 him(f/). The preparation of a settlenient 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 
 settlement itself (e) . 
 
 (c) Bac. Abr. Infancy and Age, I. B. See, however, p. 6G, supra. 
 (4. 335). And see Chappie v. Cooper, (e) Helps v. Clayton, 17 C. B. N. 
 
 13 M. & W. 252, 13 L. J. Ex. 286. S. 553, 34 L. J, C. P. 1, see the 
 
 {d) Cooper v. Simmons, 7 H. & N. pleadings, and the judgment of the 
 
 707, 31 L. J. M. C. 138, per Martin, Court ad Jin.
 
 72 CAPACITY OF PARTIES. 
 
 A more remarkable extension of tlie definition of neces- 
 saries is to "be found in the case of Chappie v. Cooper (/), 
 wliere 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 husband and 
 wife being in law the same person, the decent burial of a 
 deceased husband is therefore a necessary for his widow. 
 The conclusion, though arrived at by a circuitous and 
 highly artificial course of reasoning, seems in itself satis- 
 factory on a broader ground, which however the Court did 
 not adopt. A contract entered into for the purpose of 
 performing an imperative moral and social, if not legal, 
 duty which it would have been scandalous to omit, may 
 well be considered of as necessary a character as any 
 contract for personal service or pm-chase of goods for 
 personal use. 
 
 "We refrain from any further enumeration of the various 
 things which have been decided to be necessary or not 
 necessary, for two reasons : that the question, though to a 
 great extent a question for the Court, is one of judicial 
 common sense in each particular case, for which pre- 
 cedents can supply no absolute authority but only more 
 or less instructive analogies, and that to undertake such 
 an enumeration would be to usurp the office of a 
 Digest (^). 
 Theliabi- The Supply of nccessarics to an infant creates only a 
 sLnple°^ liability on simple contract, and it cannot be made the 
 contract ground of any different kind of liability (//). Coke says : 
 " If he bind himself in an obligation or other writing with 
 
 (/) 13 M. & W. 252, 13 L. J. Ex. obligation is really quasi ex con- 
 
 2SG. tractu only. In one American case 
 
 (y) See the cases collected, Fisher's wliich he cites it has been held that 
 
 Dig. 4632 — 5, or Leake, 519. an infant is bound to pay for neces- 
 
 (A) At common law a loan of saries though when they were sup- 
 money could not be deemed equiva- plied he was too young to understand 
 lent to necessaries, though actually the nature of a contract ; and in 
 spent on necessaries : Bac. Abr. 4. several others that his duty is to 
 356, It is suggested by my Ameri- pay, not the price expressly pro- 
 can editor, Mr, Wald, that the mised, but the reasonable value.
 
 INFANTS : CUSTOM AND STATUTES. 73 
 
 a penalty for the payment of any of these, that obligation 
 shall not bind him" (/). A fortiori, a deed given by an 
 infant to secure the repayment of money advanced to buy 
 necessaries is voidable (/.) . Such is also the common law 
 with regard to negotiable instruments (/) . But it is said 
 that a bill or note given by an infant to a creditor for 
 necessaries may be valid if it is not payable to order or 
 negotiable (w?). 
 
 There are some particular contracts of infants valid by What con- 
 custom. By custom incident to the tenure of gavelkind i^ant can 
 an infant may sell his land of that tenure at the age of «iake by 
 fifteen, but the conveyance must be by feoffment, and is 
 subject to other restrictions {n). This, however, is not a 
 full capacity of contracting, for there is no reason to sup- 
 pose that an action could be brought against the infant for 
 a breach of the contract 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 apprentice to a freeman of London by 
 indenture with proper covenants ; 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 (o). 
 
 Infants, or their guardians in their names, are empowered Bystatute. 
 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 surrender 
 leases and accept new leases (s. 12). (The provisions as to 
 renewals of leases extend also to married women) (y>). 
 And by a later Act (18 & 19 Yict. c. 43), infants may 
 
 (i) Co. Lit. 172 a, cp. 4 T. R. 363. («) Bacon Ab. Gavelkind, A., 4. 
 
 [k) 3Iartin\.Gale,4: Ch. D. 428. 49 ; Uav.Conv. 2.pt. 1. 221.(3dcd.) ; 
 
 {I) And so of accounts stated, but Dart, V. & P. ad init. 
 
 these are now absolutely void, as (o) Bacon, Ab. Infancy, B., 4. 340. 
 
 well as loans of money to infants. [p] See Dan. Ch. Pr. 2. 1917 ; 
 
 Supra, p. 60. Re Clark, 1 Ch. 292 ; Re Lctchford, 
 
 {m) Anon. MS. Fisher's Dig. 2 Ch. D, 719. 
 4626. Cp. KoUe Ab. 1 . 729, pi. 7.
 
 74 CAPACITY OF PARTIES. 
 
 with the sanction of the Court make valid marriage settle- 
 ments of both real and personal property. 
 
 Infant not 4. Of an infanfs immunity as to wrongs connected tvith 
 
 liable for . ' 
 
 wrono- contract. 
 
 ■where the _^q infant is generally no less liable than an adult for 
 
 substance wrongs Committed by him, subject only to his being in fact 
 
 ex con. £ 1^ ^ ^^^ discretion that he can have a wrongful 
 
 tractu. o .... 
 
 intention, where such intention is material ; but he cannot 
 
 be sued for a wrong, when the cause of action is in sub- 
 stance ex contractu, or is so directly connected with the 
 contract that the action would be an indirect way of 
 enforcing the contract — which, as in the analogous case of 
 married women {q), the law does not allow. Thus it was 
 long ago held that an infant innkeeper could not be made 
 liable in an action on the case for the loss of his guest's 
 goods (r). There is another old case reported in divers 
 books (s) (the clearest of the reports is transcribed 
 with immaterial omissions in a judgment of Knight 
 Bruce, V.-O. (f), 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 be ruined, for though not 
 bound by their contracts, they Avould 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 
 not belonging to him as a diamond and his own. The 
 rule is decidedly laid down in Joinings v. Rundall [u), 
 where it was sought to recover damages from an infant for 
 But liable overriding a hired mare. But if an infant's wrongful act, 
 ^"^aTf°"m though concerned with the subject-matter of a contract, 
 
 (17) See p. 79, infra. collected ih. at p. 110, where "the 
 
 (r) RoUo Ab. 1. 2, Action siir case mentioned in Iveble " is that 
 
 Case, D. 3. which, as stated in the text, occurs 
 
 (a) Johnson v. Pic, Sid. 2o8, 1 in his report of Johnson v. Tie. 
 Lev. 1G9, 1 Keb. 913. {h) 8 T. R. 335. It is also rc- 
 
 (t) Stikeman v. Dawson, 1 De G. cognized in Price v. Ilcwctt, 8 Ex. 
 
 & Sm. 113 ; and sec other cases 146 (not a decision on the point).
 
 infants: liaiumty collateral to contract. 75 
 
 and such that but for ihe contract thcro would have been contract, 
 no opportunity of committing it, is nevertheless indepen- touchhi"- 
 dent of the contract in the sense of not being an act of the t^'^ sub- 
 kind contemplated by it, then the infant is liable. The ter of a ' 
 distinction is established and "well marked by a modern contract, 
 case in the Common Pleas, where an infant had hii-ed 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 trespass and independent tort, 
 for which the defendant was therefore liable {x) . 
 
 It is doubtful whether an infant can be made liable Q>f. 
 quasi ex contractu (as for money received), when the real liaUe on 
 cause of action is a wrong independent of contract ; but contract 
 since the Judicature Acts have abolished the old forms of law. 
 action, the question seems of little importance (v/). 
 
 5. Liability in equity on representation of full age. In equity 
 
 "WTien an infant has induced persons to deal with him bound by 
 by falsely representing himself as of full age, he incurs an ^^ ^'^^\ 
 obugation m equity, which however m the case of a con- represent 
 tract is not an obligation to perform the contract, and must of™uiiacfe^. 
 be carefully distinguished from it (~). Indeed it is not a but only to 
 contractual obKgation at all. It is limited to the extent of any 
 we have stated above (p. 52), and the principle on which it f-dvantage 
 
 gained. 
 
 {x) Burnardx. Haggis, 14 C. B. C. P. at p. 297. 
 N. S. 45, 32 L. J. C. P. 189. {z) Ace. Bartlett v. Wells, 1 B. & 
 
 (y) The liability is affirmed by S. 836, 31 L. J. Q. B. 57. Decla- 
 
 Mr. Leake (p. 546), and in the ration for goods sold, &c. Plea, 
 
 State of Vermont (i'^M'c^^ V. iI/'c?r('iH, infancy. Equitable replication, 
 
 22 Vt. 217, ap. Cooley on Torts, that the contract was induced by 
 
 112), and disputed by Mr. Dicey defendant's fraudulent ropresenta- 
 
 (on Parties, 284), who is supported tion that he was of age. The 
 
 fey a dictum of Willes, J., assuming reiilication was held bad, as not 
 
 that infancy woidd be a good plea meeting the defence, but only 
 
 to an action for money received, showing a distinct equitable right 
 
 though substantially founded on a collateral to the cause of action 
 
 ■wrong. Alton Y. Midland liij. Co., sued upon. 
 19 C. B. N. S. at p. 241 ; 34 L. J.
 
 76 CAPACITY OF PARTIES. 
 
 is founded is often expressed in the form: "An infant shall 
 not take advantage of his own fraud." A review of the 
 principal eases will clearly show the correct doctrine. In 
 Ckn-lie V. CobJeij (a) the defendant heing 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. (It must be taken, 
 though it is not clear by the report, that the defendant 
 falsely represented himself as of full age.) 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 deHver 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 Limitation 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 Lenipriere v. Lange, a quite recent 
 case, it was held that an infant who had obtained the lease 
 of a furnished house by representing himself of full age 
 could not be made liable for use and occupation {h). Cory 
 v. Gertclxcn (c) shows that 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 representa- 
 tives can afterwards charge the trustees with a breach of 
 trust and make them pay again. Overton v. Banister [d) 
 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 late case of Wright v. Snoive (e) seems not to 
 agree with this, though Overton v. Banister was cited, 
 and apparently no dissent expressed. There a legatee had 
 
 («) 2 Cox, 173. (rO 3 Ha. 503. 
 
 [h) 12 Ch. D. 675. [e) 2 De G. & Sm. 321. 
 
 [c) 2 Madd. 40.
 
 INFANTS : LIABILITY APART FROM CONTRACT. 77 
 
 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 sufliciently proved, and 
 the Court would not direct an inquiry, considering that 
 in any event the release could not he disturbed. This 
 appears to go the length of holding the doctrine of estoppel 
 applicable to the class of representations in question, and if 
 tliat be the effect of the decision its correctness may perhaps 
 be doubted. In Stikeman v. Dawson {/) the subject of There 
 infants' liability for wrongs in general is discussed in an ^^jtiyg 
 interesting judgment by Knight Bruce, V.-C, and the represen- 
 important point is decided that in order to establish this mere dissi- 
 equitable liability it must be shown that the infant actually "^^iilation: 
 represented himself to be of full age ; it is not enough that other 
 the other party did not know of his minority. And as be\n fe,ct 
 there must be an actual false representation, so it has been misled, 
 more lately held that no claim for restitution can be 
 sustained unless the representation actually misled the 
 person to whom it was made. No relief can be given if 
 the party was not in fact deceived, but knew the truth at 
 the time ; and it makes no difference where the business 
 was actually conducted by a solicitor or agent who did not 
 know {g). 
 
 A minor cannot be adjudicated a bankrupt in the Proof in 
 absence of an express representation to the creditor that he ruptcV. 
 was of full age. The mere fact of trading cannot be taken 
 as a constructive representation {/i). But if a minor has 
 held himself out as an adult, and so traded and been made 
 bankrupt, he cannot have the bankruptcy annulled on the 
 groimd of his infancy {i) ; and a loan obtained on the faith 
 
 (/) 1 De G. & Siu. 90. 2 Ch. D. 227. 
 
 (V) Nelson v. Stacker, 4 De Gr. & J. (») Ex parte TFatso?i, 16 Ves. 26o, 
 
 458. Ex parte Bates, 2 Mont. D. & D. 
 
 {h) Ex parte Jones, C. A., 18 Ch. 337. 
 D. 109, overruling Ex parte Lynch,
 
 78 
 
 CAPACITY OF TARTIES. 
 
 But subse- 
 quent 
 valid con- 
 tract after 
 full age 
 prevails. 
 
 of an express representation that he is of full age is a claim 
 provable in bankruptcy {k). 
 
 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 perform- 
 ance of the subsequent contract (/). This is another proof 
 that the infant'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 making of another lease of the same property to 
 another lessee after the lessor has attained full age is not 
 enough to avoid the first lease {ni). The fact that an 
 interest in property and a right of possession had passed 
 by the first lease, though voidable, seems a sufficient 
 ground for the distinction. 
 
 Married 
 
 Tvomencan 
 
 contract 
 
 only as to 
 
 separate 
 
 property. 
 
 Old com- 
 mon law 
 disability. 
 
 II. Married Women. 
 
 A married woman is capable of binding herself by a 
 contract, only "in respect of and to the extent of her 
 separate property" {n). This limited capacity is created 
 by a statute founded on the practice of the Coiu't of Chan- 
 cery, which for more than a century had protected married 
 women's separate interests in the manner to be presently 
 mentioned. Except as to separate property the old com- 
 mon law rule still exists, though with greatly diminished 
 
 (Z-) Ex parte VnityBanJc, 3 De G. 
 & .T. G3, see observations of Jessel, 
 M.R. thereon, 18 Ch. D. at p. 121. 
 
 (/) Lnnan v. Iinnan, In Eq. 2G0. 
 
 {m) Shtor v. Bradij, U Ir. C. L. 
 CI, supra, p. 55. 
 
 {)i) Married Women's Property 
 Act, 188:2, 45 & 40 Vict. c. 75, s. 1.
 
 MARRIED ^VOMEN : COMMOX LAAV. 79 
 
 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 it" (o). And the same consequence follows as in the 
 case of infants, viz., that although a married woman is 
 answerable for ^vTongs committed by her during the cover- 
 ture, 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 con- 
 nected with a contract with her, and is the means of effect- 
 ing 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 her- 
 self as sole (o) ; but it is doubtful whether this extends to 
 all cases of false representation by which credit is ob- 
 tained {p). For the same reason — that the law will not 
 allow the contract to be indirectly enforced — a married 
 woman is not estopped from pleading coverture by having 
 described herself as sui iuris (q). 
 
 The fact that a married woman is living and trading 
 apart from her husband does not enable her at common 
 law to contract so as to give a right of action against her- 
 self alone (r). Nor does it make any difference if she 
 is living separate from her husband under an esj^ress 
 agreement for se^^aration, as no agreement between hus- 
 band and wife can change their legal capacities and 
 characters (s) . 
 
 But " a married woman, though incapable of maldng a But may- 
 contract, is capable of having a chose in action conferred ^outrac- 
 upon her, which will survive to her on the death of the tual 
 husband, unless he shall have interfered by doing some former 
 
 (o) Per Cur. Fairhiirst v. Liver- [q] Cannara r. Farmer, 3 Ex. 69S. 
 
 pool Adelphi Loan Association, 9 Ex. (;■) Clayton v. Adams, 6 T. E. 605. 
 
 422, 429, 23 L. J. Ex. 164. («) Marshall v. Eiitton, 8 T. K. 
 
 {p) Wright v. Jjconard, 11 C. B. 545 ; seeLordBrougham'sremarks, 
 
 N. S. 258,*30L. J. C. P. 365, where 3M. & Iv. 221. 
 the Court was divided.
 
 80 
 
 CAPACITY OF PARTIES. 
 
 husband's 
 benefit if 
 lie exercise 
 them 
 
 during the 
 coverture ; 
 otherwise 
 for her 
 own if she 
 survive. 
 
 Cannot 
 during 
 coverture 
 renew debt 
 barred by 
 Stat, of 
 Limita- 
 tion. 
 
 act to reduce it into possession " : thus slie might, before 
 the Married Women's Property Act, buy railway stock, 
 and become entitled to sue for dividends jointly with her 
 husband (f). When a third person assents 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 {u). 
 
 During the joint lives of the husband and wife the 
 husband is entitled iure mariti to receive 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 ad- 
 ministration to his wife ; and if he dies without having 
 done so, it is necessary that letters of administration should 
 be taken out to the wife's estate (for such is still the legal 
 character of the money), but the wife's administrator is 
 only a trustee for the representative of the husband " {x). 
 Accordingly the Court of Probate cannot dispense with 
 the double administration, even where the same person is 
 the proper representative of both husband and wife, and 
 is also beneficially entitled {>/). 
 
 Inasmuch as according to the view established by modem 
 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 subsisting considera- 
 tion (see the chapter on Agreements of Imperfect Obli- 
 gation, infra), a married woman's general incapacity to 
 contract 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 acknow- 
 
 {t) Per Cur. DaUoii v. Midland 
 Hy. Co., 13 C. B. 474, 22 L. J. C.P. 
 177. And see 1 "Wms. Saund. 222, 
 223. On the question what amounts 
 to reduction into jiossession, see 
 Williamson Executors, 1. SoG (7th 
 ed.), Widgcry v. Tejiper, 5 Ch. D. 
 516. 
 
 («) Fleet v. Ferrins, L. R. 3 Q. 
 B. 536, 4 Q. B. 500. 
 
 (x) Per Lord Westbury, Farting- 
 ton V. Attg.-Gen., L. R. 4 H. L. 
 100, 119. 
 
 (y) In the Goods of Harding, L. 
 R. '2 P. & D. 394.
 
 MARRIED WOMEN. 81 
 
 ledgment after the marriage is also ineffectual, since to 
 Lind one's joint debtor an acknowledgment must be such 
 as would have bound him if made by himself (;:). 
 
 The rules of law concerning a wife's power to bind her 
 liusband 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 tliis work. 
 
 Exceptions at common lan\ — The "wife of the King of Excep- 
 England may sue and be sued as a feme sole (Co. Litt. Qu^en 
 1.33 a). ' Consort. 
 
 The wife of a person civilly dead may sue and be sued Wife of 
 alone {Ih. 132 b, L33 a). The cases dwelt on by Coke are Sy 
 such as practically cannot occur at this day, and it seems <iea<i- 
 that the only persons who can now be regarded as civilly 
 dead are persons convicted of felony, and not lawfully at 
 large under any licence {a) . An alien enemy, though dis- 
 abled 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 opera- 
 tion of the Statute of Limitation, but this inconvenience 
 does not take the case out of the general rule {h). This 
 
 (2) Fltlam V. Foster, 1 B. & C. courts except ' when a man entereth 
 
 218 ; 1 "VVrns. Saund. 172. into relig-ion [i. e. a religious order 
 
 ((/) Transportation was con- in England] and is professed ' : in 
 sidered as an abjuration of the that case he could make a will and 
 realm, which could be determined apprdnt executors (who might be 
 only by an actual return after the sued as such for his debts, F. N. B. 
 (•entence had expired: Carrol v. 121, 0), and if he did not, his goods 
 lilencoiv, 4 Esp. 27. The analogy could be administered (Litt. s. 200, 
 to Coke's 'Civil Death' is dis- Co. Litt. 131 i). Bracton, how- 
 cussed, ary. in Ex jjarie FranJcs, 7 ever, speaks of outlawry (42G b) as 
 Bing. 7G2. well as religious profession (301 b) 
 
 {b) I)e Waftl V. Braune, 1 H. & aa mors civi/is. A person under the 
 
 N. 178, 2-5 L. J. Ex. 343. Per- penalties of praemunire, which in- 
 
 haps it may, be doubted whether elude being put out of the Queen's 
 
 'civil death', 'was ever really ap- protection, would, I suppose, be in 
 
 propriate as a term of art in Engli.sh the same plight as an outlaw. The 
 
 P. G
 
 CAPACITY OF PARTIES. 
 
 decision does not expressly overrule any earlier aiitliority 
 (and there is such authority) (f) for the proposition that 
 she may be sued alone. But it is conceived that such 
 must be the result. 
 
 Of alien 
 
 who has 
 left the 
 kingdom : 
 qu. 
 
 Custom of 
 London as 
 to married 
 woman 
 trading 
 alone. 
 
 It appears to be the result of the authorities that the 
 wife of an alien husband who has never been in England 
 may bind herself by contract if she purports to contract 
 as a feme sole. 
 
 " By the custom of London, if a feme covert, the wife of 
 a freeman, trades by herself in a trade with which her 
 husband does not intermeddle, she may sue and be sued 
 as a feme sole, and the husband shall be named only for 
 conformity ; and if judgment be given against them, she 
 only shall be taken in execution." (Bacon, Abr. Customs 
 of London, D.) This custom applies only to the city 
 courts (d), and even there the formal joinder of the 
 
 Roman mors civilis was a pure legal 
 fiction, introduced not to create 
 disabilities, but to obviate the in- 
 convenient results of disabilities 
 otherwise created. (Sav. Syst. 2. 
 164.) As to the mort civile of modem 
 French law (now abolished since 
 1854), see ib. 151 sqq. 
 
 (c) DeiT!/ r. Duchess of 3Irizarine, 
 1 Ld. Eaym. 147. Lord Kenyon 
 twice held that the wife of an alien 
 who has left the kingdom for some 
 time, and is not known to have any 
 intention of returning, may be sued 
 alone on contracts made by her 
 after his departure {JFalford v. 
 Duchess do I'iennc, 2 Esp. 554 ; 
 Franks v. same defendant, ib. 587 ; 
 Dicey on Parties, 29G) ; the reason 
 being, it seems, that in the case of 
 an alien no animus revcrtoidi could 
 bo presumed. But in a third action 
 against the same defendant (the 
 husband having in the mean time 
 returned to England and gone 
 away again) Lord Ellenborough 
 took a different view and nonsuited 
 the plaintiff. He thought such an 
 action could be maintained only 
 when the husband had never been 
 
 in the kingdom (in which case the 
 right of action had already been 
 upheld by the Court of Common 
 Pleas [Dc GaiUon v. VAigle, IBos. 
 & P. 357) ; here the husband had 
 lived with his wife in England, and 
 was under no legal disability to 
 rejoin her. The Coui't refused a 
 rule to set aside the nonsuit. {Kay 
 V. Duchess de Fiennc, 3 Camp. 123.) 
 In a more modern case, again, the 
 Coiu't of Exchequer thought that 
 Lord Ellenborough had conceded 
 too much, and that such an action 
 was in no case maintainable with- 
 out showing that on the particular 
 occasion the wife actually con- 
 tracted as a feme sole. [Burden y. 
 Keverberg, 2 M. & W. 61, 6 L. J. 
 Ex. 66.) It is submitted that as to 
 the former point it would be enough 
 to show that the husband never 
 had an English domicil, or at all 
 events that he never resided in 
 England. It seems unreasonable 
 that the mere fact of his having at 
 some time been in England should 
 make all the difference. But the 
 question is now of httlc interest. 
 {d) CaudcU v. Shaw, 4T. R. 361.
 
 MARRIED WOMEN. 83 
 
 liiisband is indisponsablo. But if acted upon in tlioso 
 courts it may bo pleaded as matter of defence in tho 
 superior courts (c), though they do not otherwise notice 
 the custom (/). 
 
 In certain exceptional cases in wliich tho wife has an Contracts 
 adverse interest to the husband she is not incapable of ^^Ui ^sTo 
 contracting with him. Where a wife had instituted a scpara- 
 Buit for divorce, and she and her husband had agreed to may bo ' 
 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 /one sole, that the agreem-ent was not 
 invalid, and that tho award was therefore binding {(/). 
 
 The real object of the reference and award in this case 
 having been to fix tho terms of a separation, it was later 
 held that the Court v/ould not refuse to enforce an agree- 
 ment to execute a deed of separation merely because it 
 was made between the husband and wife without the 
 intervention of a trustee {/i). But it does not follow that 
 in such a transaction a married woman has all the powers 
 of a feme sole. She has only those which the necessity of 
 the case requires. She is probably competent to com- 
 promise the suit with her husband : 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 (/). 
 
 SMutor// cxceiHiom other than Married Women'' s Projwvti/ statutory 
 
 1 . excep. 
 
 ■^^^' _ tions: 
 
 By the Act constituting the Court for Divorce and judicial 
 Matrimonial Causes, 20 & 21 Yict. c. 85, a wife judicially '^?P^ 
 
 (e) Beard v. WeU, 2 Bos. & P. 1 Dow, 235. 
 93. Siuce the Act of 1882 the only {h) VansittartY. Vansittart, i'K. 
 
 effect of the custom, if any, seems & J. 62 ; 27 L. J. Ch. 222 ; but the 
 
 to be that a married woman trading agreement not enforceable for other 
 
 in the City of London maybe sub- reasons ; affirmed on appeal, 2 De 
 
 jcct to greater personal liability Gr. & J. 249; 27 L. J. Ch. 289; 
 
 than elsewhere. but no opinion given on this point. 
 
 (/) CaudcllY. Shaw, supra. (t) Cahill v. Uahill, 8 App. Ca. 
 
 {g) Bateman v. CouHtess of lioss, 420. 
 
 g2 
 
 ara- 
 tions and
 
 84 CAPACITY OF PATITIES. 
 
 protect'on separated from lier 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 proceed- 
 ing (s. 26) (/) ; 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 supposi- 
 tion 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 {j) . These provisions 
 are extended by an amending Act in certain particulars 
 not material 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 
 sued " in this section are 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 (/<•). 
 
 Equitable In the last century, if not earher, the Court of Chancery 
 doctrine of j-gcognized and sanctioned the practice of settling property 
 estate, upon married women to be en j oyed by them for their separate 
 use and free of the husband's interference or control. To 
 this was added, towards the end of the 18th century, the 
 curious and anomalous device of settling property in trust 
 for a married woman " without power of anticipation," so 
 that she cannot deal in any way with the income until it 
 is actually payable. During the present century a doctrine 
 
 (t) The same consequences follo-w 318. 
 a fortiori on a dissolution of mar- (/) Midland Ey. Co. v. Ti/e, 10 
 
 riago, though there is no express 0. B. N. S. 179 ; 30 L. J. C. P. 314. 
 enactment that they shall : Wilkin- [Jc) Eamsdcn v. Brearlcy, L. R. 10 
 
 son V. Gibson, 4 Eq. 1G2 ; see also, Q. B. 147. She can give a valid 
 
 as to the divorced wife's rights, receipt for a legacy not reduced into 
 
 IJ'clls V. 3falbo)i, 31 Bcav. 48; Fitz- possession before the date of the 
 
 ffcrald V. Chapman, 1 Ch. D. 5G3 ; order : lie Coward ^^-AdanisFurchase, 
 
 Burton v. Sturgeon (C. A.), 2 Ch. D. 20 Eq. 179.
 
 MARRIED WOMEN. 85 
 
 was elaborated, not without difficulty and hesitation, under 
 which a married woman having separate property at her 
 disposal (not subject to the peculiar restraint just men- 
 tioned) might bind that property, though not herself per- 
 sonally, by transactions in the natui'e of contract. Some 
 account of this doctrine is given for reference in the 
 Appendix. The authorities which established it are still 
 applicable, as regards property acquired by a married 
 woman for her separate use before January 1, 1883, to 
 transactions before that date on which any claim in respect 
 of such property is founded. 
 
 The Married Womeii's Property Act. 
 
 The provisions of the Married Women's Property Act, 45 & 4G 
 1882, are so much wider that they may be described as a 
 new body of law, consolidating and superseding the results 
 of the cases in equity as well as the previous 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 (/) : 
 
 (ii) Property belonging at the time of marriage to a 
 woman marrying after January 1, 1883 (;«). 
 
 Special trusts created in favour of a married woman by 
 will, settlement or otherwise are not affected by the Act {n). 
 
 Subject to any settlement (o), a married woman can 
 bind herself by contract " in respect of and to the extent 
 of her separate property," and can sue and be sued alone {2)). 
 
 Damages and costs, if recovered by her, become her 
 separate property ; if against her, are payable out of her 
 separate property and not otherwise [q). A married 
 
 (l) Ss. 5, 25. tion of the Act with regard to power 
 
 \m) S. 2. to sue on a cause independent of 
 
 («) S. 19. contract, see Weldon v. JFiiisIou; 
 
 (0) See Stono7-'s Trusts, 24 Ch. D. C. A., 13 Q. B. D. 784. 
 195. {q) S. 1, sub-s. 2. 
 
 {p) As to the retrospective opera-
 
 8G CAPACITY or TAUTIES. 
 
 woman trading alone can be made bankrupt in respect of 
 lier separate property (q). 
 
 A contract made by a married woman 
 
 (i) Is presumed to be made with respect to and to bind 
 
 ber separate property (r) : 
 (ii) If so made and binding, binds her after-acquired 
 separate property (.s). 
 
 A married woman's separate property is liable for her 
 ante-nuptial debts and obligations (/). She cannot avoid 
 this liability by settling the property on herself without 
 power of anticipation {ii). 
 
 As to women married before January 1, 1883, such 
 liability applies only to separate property acquired by 
 them under the Act {t). 
 
 The Act contains other provisions as to the title to stocks 
 and other investments registered in a married woman's 
 name either solely or jointly (.r), the effecting of life 
 assiu'ances by a married woman, or by either husband or 
 wife for the benefit of the family (y), procedure for the 
 protection of separate property {z), and other matters 
 which belong more to the law of Property than to the 
 law of Contract. 
 
 It is not expressly stated by the 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. If not, tlie only remedy 
 would be against her separate property which existed as 
 such during the coverture, so far as it could still be identi- 
 fied and followed. It can hardly have been intended by 
 the legislature that a creditor should be the worse off by 
 
 (ry) S. 1, sub-s. 5. {() S. 13. This liability is at least 
 
 (V) Formerly there -R^as no such doubtful in cases not under the Act: 
 
 presumption unless she was living- see Appendix, Note C. 
 
 apart from her husband. SecnotoC. (u) 8. 19. 
 
 (.s) S. 1, sub-ss. 3, 4. Formerly (.r) Ss. 6—10. 
 
 oilicvwiHc: Tike Y.Fitzffibbo)i,C. A., (y) S. 11. 
 
 17 Ch. D. 451. (r) S. 12.
 
 LUNACY AND DRUNKENNESS. 87 
 
 his deLtor acquiring a greater legal capacity. Pcrliaps 
 the words " separate property " are large enough, though 
 not strictly apt, to include property belonging to or 
 acquired by a "woman who has become a fame sole. 
 
 III. Lunatics and Drunken Persons. 
 
 It will be convenient to consider these causes of dis- Drunken- 
 ability together, since in our modern law drunken men Lunac^. 
 and lunatics are in the same position with regard to the 
 capacity of contracting. Three different theories on the 
 matter have at different times been entertained in English 
 courts and sujjported by respectable authority. Before wo 
 specially mention these it will be best to dispose of the 
 points on which there has not been any substantial 
 conflict. 
 
 First, as to the peculiar and exceptional contract of Lunatic's 
 marriage. The marriage of a lunatic is void, and there is ™Jid?^°^ 
 no ground for requiring a less degree of sanity for a valid 
 marriage than for the making of a will or for other pur- 
 poses («). Apart from this, it seems to have been always General 
 admitted, on the one hand that a lunatic is incapable of ^^J^^^ 
 contracting or doing other acts in the law after he has always 
 been found lunatic by inquisition and while the commis- lunatic's ' 
 sion of lunacy is in force [h) ; and, on the other hand, that contract m 
 a lunatic who has lucid intervals is capable of contracting interval 
 diu'ing those intervals (c) . ° ' 
 
 It is equally settled that a lunatic or his estate may be Liability- 
 liable quad ex contvaciu for necessaries supplied to him garies'^^&c 
 in good faith {d) ; and this applies to all expenses neces- 
 sarily incurred for the protection of his person or estate, 
 
 («) Hancock v. Peaty, L. E. 1 P. (p) BcrcrJcf s ca..; Ilally. IVarrcn, 
 
 & D. 335, 341. The statute 15 Geo. 9 Ves. 605, cp. Selby v. Jackson, 6 
 
 2, 0. 30 is rep. by the Stat. Law Beav. 192. 
 Revision Act, 1873. {'f) Ihigntcr y. Earl of TortsmoMth, 
 
 {h) Beverley'' s en. 4 Co. Kep. 123 h; 5 B. & C. 170, s.c. more fully, uoni. 
 
 Bacon, Abr. Idiots and Luna- Baxter y. Earl B., 7 D. & E.. 614. 
 tics, (F.)
 
 88 CAPACITY OF PARTIES. 
 
 such as tlio cost of the proceedings in lunacy (e) . But it is 
 doubtful whether a person who supplies necessaries to a 
 lunatic knowing him to be such can have an action against 
 the lunatic as on a contract "implied in law" (,/'). A 
 husband is liable for necessaries 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 revoked by the 
 husband's insanity (g). In the same way drunkenness or 
 lunacy would be no answer to an action for money had and 
 received, or for the price of goods furnished to a drunken 
 or insane man and kept by him after he had recovered his 
 reason : in this last case, however, his conduct in keeping 
 the goods would be evidence of a new contract to pay for 
 them {/i). 
 
 There is also express authority (which one would think 
 hardly necessary) to show that contracts made by 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 insane, except as to 
 persons who deal in good faith with the agent in ignorance 
 of his insanity (k) . We now come to the different theories 
 above mentioned. 
 
 History of 1. The first is that the drunkenness or lunacy of the 
 to contract party is no ground whatever for avoiding the contract, 
 of lunatic, j^or " as for a drunkard who is vohintarius dcamon, he hath 
 ■,'cu'eral. (as hath been said) no privilege thereby, but what hurt or 
 Coke: No ill soever he doth, his drunkenness doth aggravate it." 
 htiiltify (Co. Litt. 247 a) . And although this moral reason does 
 not exist in the case of lunacy, yet the lunatic is equally 
 bound, for " no man of full age shall be received in any 
 
 [e) Williams v. Wcnticorth , 5 L. J. Ex. 309. 
 
 Bcav. 325 ; Stcdman v. Hart, Kay, {h) Gure v, Gibson, 13 M. & W. 
 
 607. G23, 14 L. J. Ex. 151. 
 
 (/) lie Weaver, 21 Ch. D. C. A. (i) Owen v.Davies, 1 Ves. Sr. 82. 
 
 at pp. 019, G20. {k) See JJrew v. Kimn (0. A.), 4 
 
 (y) lieadv. Lynrd, G Ex. G3G, 20 Q. B. D. 661, 
 
 hiniHulf.
 
 LUNACY AND DRUNKENNESS. 89 
 
 plea by tho law to disable his own person, but the beir 
 may well disablu tho person of tho ancestor for his own 
 advantage in such case." (Litt. s. 405 {/); Co. Litt. 2 b; 
 Bererlei/s ca. 4 Kep. 123 h, where, however, it is said that 
 even the heir or executor could not avoid matter of record, 
 and another idle reason is given for the general rule, viz., 
 that the party when he recovers his memory cannot 
 remember what he did when he was no)i comj^os mentis.) 
 As regards drunkenness, this doctrine is on the face of 
 it a wholly mistaken application of a principle which is 
 properly applicable to criminal offences and merely 
 ■wrongful acts, but has nothing to do with liabilities ex 
 contractu. As regards lunacy, it is a merely frivolous 
 technicality. However it is confidently stated as law by 
 Coke ; and we find it adopted by Lord Tenterden as late 
 as 1827, though, as we shall immediately see, it had long 
 before that time been exploded by other judges {m). It 
 seems at least doubtful whether it was really supported by 
 the authorities Coke had before him. At any rate they 
 were conflicting, and Fitzherbert (F. N. B. 202 d ) was 
 expressly against him, considering the case of an infant as 
 analogous. Bracton, following the civil law (??), said : 
 " Furiosus autem stipulari non potest nee alic|uod negotium 
 agere, quia non intelligit C[uid agit " (fol. 100 et, of. 165 b ; 
 and see Fleta, 3, 3. §§ 8, 10). But it is unnecessary to 
 discuss this further. 
 
 2. The next theory is to the following effect : If a man First 
 is so drunk or so insane as not to know what he is about, ™°^^™ 
 
 theory : 
 
 he cannot have that consenting mind which is indispensable Contract 
 
 to the formation of a contract, and his agreement is there- absolute 
 
 fore merely void. But if his mind is only so confused or ^^^'•^' 
 
 "^ pacity, or 
 
 {!) The text of Littleton concerns (?w) Brown y. JodrcH, 3 C. & P. 
 
 only the right of entry after a de- 30. 
 
 scent, biit Coke's comment is gene- (n) Inst. 3. 19, 8; G-ai. 3. lOG. 
 
 ral, and Beverley's case was on a For exposition of the Roman Law- 
 bond, sec Savigny, Syst. 3. 83—86 ; and 
 
 cp. Pothier, Obi. ^^^ 49— ol.
 
 90 
 
 CAPACITY OF PARTIES. 
 
 voidable 
 for fraud, 
 according 
 to circum- 
 stances. 
 
 weak tliat lie cannot Le said not to know wliat lie is about, 
 but yet is incapable of fully understanding tlie terms and 
 effect of his contract, and if this is known to the other party, 
 then he may indeed contract, but the contract will be 
 voidable at his option, on the ground of the other party's 
 fraud in taking advantage of his weakness, though such 
 weakness be short of incapacity. According to this the 
 first class of cases would be reckoned with others in which 
 agreements are absolutely void for want of real consent (as 
 to which see 2)osf, Ch. YIII.) and the second would come 
 under the general head of fraud. 
 
 We find the first branch of this opinion decidedly adopted 
 in common law practice in the last century and the earlier 
 part of this, no doubt by way of reaction against Coke's 
 extravagant dogmas. Lunacy was held admissible as 
 evidence under a plea of non est factum, i.e. as showing the 
 lunatic's act to be wholly void (o) ; and the like was said 
 of drunkenness {p). Lord • EUenborough distinctly laid 
 down that when the existence of an agreement between the 
 parties was in issue, it was completely negatived by the 
 intoxication of one party at the time of making the alleged 
 agreement ; and this was approved by the Com-t of King's 
 Bench {q). 
 
 The same view is to be found in the modern case of Gore 
 V. Gibson (>•), where however it was not material to the 
 decision, as the di'unkenness of the defendant and the 
 plaintiff's knowledge of it were specially pleaded. And 
 both branches of the doctrine were recognized in equity 
 and are very completely stated in a judgment of Sir W. 
 Grant {s). 
 
 (o) Yates v. JJocu, 2 Rtr. 1104. (*' 
 
 {p) BuUer, N. P. 172. 15. ' 
 
 Iq) Tilt V. Smith, 3 Camp. 33. Wo are 
 
 mu.st not forget the tendency of the said 
 
 Courts in the la.st century and the not 
 
 early part of this to enlarge as muc^h obta 
 
 ns posHil)le the scope of the ' ' general iu a 
 
 iB.sue." is a 
 
 (r) 13 M. & W. G23, 1 1 L. J. E.x. that 
 
 1-51. piev 
 
 I C'oo/ce V. Clay worth, 8 Ves. 12, 
 The references to earlier cases 
 purposely omitted. He also 
 that a Court of Equity oiight 
 to assist a person who has 
 iued an ;igreemcntfrom another 
 state of intoxication ; hut this 
 mere dictum, and if it mcaus 
 intoxication not such as to 
 cnt the party from understand-
 
 LUNACY AND DRUNKENNESS. 91 
 
 " I tliiuk a Court of Ec^uity ought not to assist a person to get rid of 
 any agreement or deed merely upon the ground of las having been intoxi- 
 cated at the time : I say merely upon that ground ; as if there was . . 
 any unfair advantage made of his situation or . . any contrivance or 
 management to draw him into drink, he might be a proper object of 
 relief in a Court of Equity. As to that extreme state of intoxication that 
 deprives a man of his reason, I apprehend that even at law it would 
 invalidate a deed obtained from lum while in that condition." 
 
 This doctrine is quite intelligiLle, and in principle there Justifiable 
 is nothing to be said against it. But the distinction between ^^\^ ^[^^^ 
 inability to understand so much as the nature of a trans- conve- 
 action (which would make it wholly void) and inability to 
 form a free and rational judgment of its effect (which if 
 known to the other i^arty would make it only voidable) is 
 too fine and doubtful to be convenient in practice. The 
 confusion of mind generally produced by drunkenness is 
 exquisitely described by Chaucer in the Knight's Tale : 
 " A dronke man wot well he hath an hous, 
 But he not [/.c, ne wot] which the righte way is thider." 
 
 Whether in any particidar case a state of consciousness of 
 this kind does or does not amount to absolute deprivation 
 of a consenting mind for the purposes of contract is a 
 question which it would be probably impracticable, and 
 certainly undesirable, for a court of justice to enter upon. 
 The same considerations apply with almost or quite the 
 same force to the capacity of a lunatic. 
 
 The reason why this inconvenience so long escaped notice 
 appears to be that in the greater number of cases it is not 
 necessary to decide whether the agreement was originally 
 void or only voidable. 
 
 3. The third opinion, which has now prevailed, is that Present 
 the contract of a lunatic or drunken man who by reason of contract 
 lunacy or drunkenness is not capable of understanding its voidable if 
 
 ing the effect of his contract is of & C. Ex. 58G ; S/iaiv v. T/iackraij, 
 
 itself a sufficient ground for re- 1 Sm. & G. 537 (but with some 
 
 fiising specific performance, it is hesitation, on the ground that the 
 
 distinctly contradicted by later real defendant was not the vendor 
 
 decisions. Liglttfoot v. Heron, 3 Y. but a subsequent piu'chaser).
 
 Camroux. 
 
 92 CAPACITY OF PARTIES, 
 
 the terms or forming a rational judgment of its effect on his 
 
 hmacy, interests is not void but only voidable at his option : and 
 known to this Only if his state is known to the other party. 
 party. The principle was established by the judgment of the 
 
 Moltonr. Exchequer Chamber in Jl/o/i'ow V. Camroiix{t). The action 
 was brought by administrators to recover the money paid 
 by the intestate to an assiu-ance and annuity society as the 
 price of two annuities determinable with his life. The 
 intestate was of unsound mind at the date of the purchase, 
 but the 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 [lunacy or drunkenness, even if such as to prevent 
 a man from knomng what he is about] was unknown to 
 the other'contracting party, and no advantage was taken 
 of the lunatic [or drunken man], the defence cannot pre- 
 vail, especially where the contract is not merely executory 
 but executed in the whole or in part, and the parties can- 
 not be restored altogether to their original positions." 
 
 The context shows that the statement was considered 
 equally applicable to lunacy and drunkenness, and the law 
 thus stated involves though it does not exj^ressly 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 contract are then applicable, 
 and among others the rule that it must be rescinded, if at 
 all, before it has been executed, so that the former state of 
 things cannot be restored : wliich is the point actually 
 decided. The decision itself has been fully accepted and 
 acted on [u), though the merely voluntary acts of a lunatic, 
 
 (C) 2 Ex. 487, 4 Ex. 17 ; 18 L. J. («) Bcavan v. M'Donnell, 9 Ex. 
 
 Ex. 68, 35G. The same principle 809 ; 23 L. J. Ex. 94 ; Price v. 
 
 had long- before been acted iipou Berrington, 3 Mac. & G. 4SG, 495, 
 
 in equity, but without deciding revg. s.c. 7 Ila. 394 ; Elliot \. Ince, 
 
 whether there was a contract at 7 D. M. G. 475, 488. 
 law: Nicllw. Morlcij, 9 Ves. 478.
 
 LUNACY AND DRUNKENNESS. 93 
 
 e.g., a voluntary disentailing deed (a class of acts with 
 which we are not here concerned) remain invalid (./■). The Develop- 
 complete judicial interpretation of the result of Molt on v. [h^'^oc- 
 
 Cdmroux was given in ILdthcicfi v. Ba.rtcr (//), The decla- trine: 
 
 ,. fi IP I L • I ^ !• Matthews 
 
 ration was lor breach oi contract m not completing a pur- i-, Baxter. 
 
 chase : plea, that at the time of making the alleged con- 
 tract the defendant was so drunk as to he incapable of 
 transacting business or knowing what he was about, as the 
 plaintiff well knew : replication, that after the defendant 
 became sober and able to transact business he ratified and 
 confirmed the contract. As a merely void agreement can- 
 not be ratified, this neatly raised the question whether the 
 contract were void or only voidable : the Court held unani- 
 mously (one member of it expressly on the authority of 
 Molton V. Ca))irou.r) that it was only voidable, and the 
 replication therefore good. 
 
 The special doctrine of our Courts with regard to part- 
 nership (which is a continuing contract) is quite in ac- 
 cordance with this : it has long been established that the 
 insanity of a partner does not of itself operate as a disso- 
 lution of the partnership, but is only a ground for dissolu- 
 tion by the Court (s). 
 
 The law may be said then on the whole to be now Statement 
 settled to the following effect : A contract made bv a °^ ^^^® ^^ 
 
 *-^ <J now 
 
 person who is drunk or of unsound mind so as to be in- settled. 
 capable of understanding its effect is voidable at that 
 person's option, unless the other contracting party did not 
 believe and had not reasonable cause to believe that ho 
 was drunk or of unsound mind. 
 
 It is to be noted that the existence of partial delusions Partial 
 does not necessarily amount to insanity for the purposes of *^^^"*^*^^^ 
 this rule. The judge or jury, as the case may be, must ^ic with 
 
 in every case consider the practical question whether the for con- 
 tracting. 
 
 [x] Elliot V. Incc, sup. (2) Lindley, 1. 224. 
 
 \y) L. R. 8 Ex. 132 (1873).
 
 94 CAPACITY OF PARTIES. 
 
 party was incompetent to manage liis own affairs in tlie 
 matter in hand (a). 
 
 Indian The Indian Contract Act treats these cases somewhat 
 
 _^ct. differently, making the agreement void (s. 12) : 
 
 "A person is said to be of sound mind for the purpose of making 
 a contract if, at the time wlien he makes it, he is capable of under- 
 standing it, and of forming a rational judgment as to its effect upon 
 his interests. 
 
 A person who is usually of unsound mind, but ocsasionally of sound 
 mind, may make a contract when he is of sound mind. 
 
 A person who is usually of sound mind, but occasionally of unsound 
 mind, may not make a contract when he is of unsound mind. 
 
 lUHstrations. 
 
 (a) A patient in a lunatic asylum, who is at intervals of sound mind, 
 may contract during those intervals. 
 
 (i) A sane man who is delirious from fever, or who is so drunk that 
 he cannot understand the terms of a contract or form a rational judgment 
 as to its effect on liis interests, cannot contract whilst such delirium or 
 drunkenness lasts." 
 
 This however must be read in connexion with s. 65 : — 
 
 ' ' When an agreement is discovered to be void, or when a contract 
 becomes void, any person who has received any advantage under such 
 agreement or contract is bound to restore it or to make compensation for 
 it to the person from whom he received it." 
 
 The possibility of hardship to persons who have dealt in 
 good faith with a lunatic who was apparently sane is, it 
 would seem, disregarded by the Indian Act as being in 
 practice exceedingly small : and the liability of a lunatic to 
 pay for necessaries is laid down in the chapter " Of certain 
 llelations resembling those created by Contract," s. 68. 
 
 IV. Convicts, etc. 
 
 Disability At common law convicted felons (as also outlaws) could 
 of con- j-^QJ- g^^Q jj^^ remained liable to be sued, on contracts made 
 
 victs. ' ' 
 
 {a) Jcnhins v. ^forris (C. A.), 14 Bramwell, L. J. in Drciv v. Kinin, 
 Ch. D. G74 ; compare remark of 4 Q. B. D. at p. 669.
 
 AGENCl'. 95 
 
 by tliom during outlawry or convietiou (6) . 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 largo under any licence (c). 
 
 Alien enemies, as wo have seen above, are disabled from Alien 
 suing in an English Court, but not from binding them- 
 selves by contract dming war between their country and 
 England, nor from enforcing such a contract after the war 
 has ceased (r/), unless meanwhile the right of action has 
 been barred by the Statute of Limitation. 
 
 "We now come to the extensions by special institutions Extension 
 of the ordinary power of making contracts. And first of ° P°^<^i*^- 
 agency. 
 
 1. Agcnctj. 
 
 We have not here to do with the relations created Agency. 
 between principal 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 com- 
 pleteness, the position of the true or apparent agent as 
 regards third persons. 
 
 A person who contracts or professes to contract on 
 behalf of a principal may be in any one of the following 
 positions : 
 
 1. Agent having authority (whether at the time or by 
 subsequent ratification) to bind his principal. 
 
 (A) known to be an agent 
 
 (a) for a principal named ; 
 (iS) for a principal not named. 
 
 (B) not known to be an agent [c] . 
 
 {h) Dicey on Parties, 4. ante, p. 81. 
 
 (c) 33 & 31 Vict. 0. 23, ss. 8, 30. [e) Since the cases of Calder v. 
 
 (i-^) Be Wahl v. Bratine, 1 H. & Bobell, Fleet Y.Murton, and. Uutchin- 
 
 N. 178, 25 L. J. Ex. 313 : note {h), son v. Tatham (see following notes),
 
 96 CAPACITY OF PARTIES. 
 
 2. Holding himself out as agent, but not having autho- 
 rity to bind his principal. 
 
 (A) where a principal is named 
 
 (a.) who might be bound, but does not in fact 
 
 authorize or ratify the contract ; 
 (/3) who in law cannot be bound. 
 
 (B) where the alleged principal is not named. 
 
 Authority 1. '^q shall not here dwell on the creation or determi- 
 its consti'- nation of an agent's authority. As a rule an agent may 
 tution and j^g appointed without any special formality ; though an 
 tion. 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. Revocation 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 by express declaration 
 or by conduct manifesting the same intention) or by his 
 dying or ceasing to be siil iuris, and thus becoming 
 incapable of continuing it (/). 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 effect before it becomes 
 known to him, or, so far as regards third persons, before it 
 becomes known to them " {[/). It is held in England, but 
 anomalously, that this rule does not apply to revocation 
 by the death of the principal (/?). It does apply in the 
 case of the principal becoming insane, and it may perhaps 
 yet be decided that in the case of death the principal's 
 estate is liable to the other party for the actual loss 
 incuiTcd by the principal's representation — which, as re- 
 it may perhaps be considered that ((/) I. C. A. 208, cp. Story on 
 the true leading distinction is Agency, § 470 ; Tnicman v. Loder, 
 whether the agent is known to bo 11 A. & E. 589. 
 an agent or not, rather than whether (A) Blades v. Free, 9 B. & C. 167. 
 the pi'incipal is named or not. Contra, I. C. A. s. 208 (Illust. c), 
 (_/■) On the whole subject see at Code Nap. 2008, 2009, and Gennan 
 large Story on Agency, §§474, sqq. Commercial Code, s. 54; and see 
 
 Kent, Comm. 2. G46.
 
 CONTRACTS OF AGENTS. 97 
 
 gards liim, was a continuing one at tlie date of tlio 
 contract — that the agent was authorized (/). 
 
 In all cases where there is an authorized agent dealing i. Agent 
 on behalf of a real principal, the intention of the parties [^g prin- 
 determines whether the agent, or the principal, or both, ^'P^^- 
 are to be liable on the contract and entitled to enforce it. 
 The question is to whom credit was really given (/r) . And 
 the general rules laid down on the subject fm-nish only- 
 provisional answers, which may be displaced (subject to 
 the rules as to admissibility of evidence) by proof of a 
 contrary intention. 
 
 A. When the agent is known to be an agent, a contract A. Known 
 is made, and knowingly made, by the other party with the a*lent : 
 principal, on which the principal is the proper person to contract 
 sue and be sued. cipai ab 
 
 initio, 
 a. Prin- 
 
 And when the principal is named at the time, then cipai 
 there is prima facie no contract with the agent : but ao-ent 
 when the principal is not named, then jmina facie the ^'■i'"^ 
 agent, though known to be an agent, does bind himself not con- 
 personally, the other party not being presumed to give ^^g^^.g^^^ 
 
 credit exclusively to an unknown principal (/). |3. Princi- 
 
 pal not 
 named : 
 
 But when the agent would not prima facie be a con- agent 
 
 1 I . . prima 
 
 tractmg party m person he may become so m various fade does 
 ways. Thus he is personally liable if he expressly under- j^^^ereon 
 
 Evidence 
 
 («) Drew V. JVunn (C. A.), 5 Q. B. ployer's own: and this even though ° ^°°^" 
 
 D. 661 : see ■pev Brett, L.J. at p. the knowledge was not acquired in . '^^5^, . 
 
 668. the course of "the particular employ- intention 
 
 [k) Story on Agency, §§ 279, sqq. ment : Dresser v. Norwood, Ex. Ch., W* 
 
 288. Thomson v. Davenport, in 2 17 C. B. N. S. 466, 3-1 L. J. C. P. 
 
 Sm. L. C. ; Caldcr v. Dobcll, L. R. 48, revg. s. c. 14 C. B. N. S. 574, 
 
 6 C. P. 486. _ 32 L. J. C. P. 201. The Indian 
 
 (/) But one who deals with an Contract Act has followed the view 
 
 agent known to be such cannot set of the C. P. in preference to that of 
 
 off against the principal's claim a the Ex. Ch. Sees. 229. Andper- 
 
 debt due to him from the agent. If haps the question may deserve to be 
 
 he has employed an agent on his reconsidered if it ever comes before 
 
 own part, that agent's knowledge is a coiu't of last resort, 
 for this purpose treated as the em- 
 
 P. H
 
 98 CAPACITY OF PARTIES. 
 
 takes to be so («/) : sueli an undertaking may be inferred 
 from the general construction of a contract in writing, 
 and is always inferred wben tbe agent contracts in liis 
 own name without qualification {n), though, the principal 
 is not the less also liable, whether named at the time or 
 not (o), or if he himself has an interest in the subject- 
 matter of the contract, as in the case of an auctioneer (j;). 
 And when the agent is dealing in goods for a merchant 
 resident abroad, it is held on the ground of mercantile 
 usage and convenience that without evidence of express 
 authority to that effect the commission agent cannot 
 pledge his foreign constituent's credit, and therefore con- 
 Teclinical tracts in person (q). When a deed is executed by an 
 deed'of agent as such but piu'ports to be the deed of the agent 
 agent. ^nd not of the principal, then the principal cannot sue or 
 be sued upon it at law, by reason of the technical rule that 
 those persons only can sue or be sued upon an indenture 
 who are named or described in it as parties (r) . And it 
 is also held that a party who takes a deed under seal from 
 an agent in the agent's own name elects to charge the 
 agent alone (s) . A similar rule has been supposed to exist 
 as to negotiable instruments : but modern decisions seem 
 
 (»;) Story on Agency, § 269. (q) Armstro)ig v. StoJces, L. R. 7 Q. 
 
 Smith, Merc. Law, 158. B. 598, 605. Ace. Elbuu/cr Actien- 
 
 («) See Fairlie v. Fcnton, L. R. Geselhchaft v. Claije, L. R. 8 Q. B. 
 
 5 Ex. 169, Fake v. Walker, lb. 173. 313, showing that the foreign prin- 
 
 The latter case, however, goes too cipal cannot sue on the contract : 
 
 far ; see note tc, next page. Sidion v. Bulloch, ih. 331, affirmed 
 
 (o) Miggins v. Senior, 8 M. & W. in Ex. Ch. 9 Q. B. 572, that he 
 
 834 : the law there laid down goes cannot be sued : New Zealand Land 
 
 to superadd the liability of the Co. v. Weitson, 7 Q. B. D. 374. In 
 
 agent, not to take away that of the Ilaspons y Her mono v. Mildred, 9 
 
 principal, Colder v. Dobcll, L. R. 6 Q. B. D. 530, the Court of Appeal 
 
 C. P. 486. As to Avhen directors of refused to extend this doctrine to a 
 
 companies arc personally liable on case where the commission agent as 
 
 documents signed by them, see well as the principal was foreign ; 
 
 Lindlcy, 1. 346 — 352, and in addi- the decision was affirmed in H. L., 
 
 tion to authorities there collected, 8 App. Ca. 874, but this point not 
 
 Dutton V. Mamh, L. R. 6 Q.B. 361. discussed. 
 
 {p) 2 Sm. L. C. 399. As to an (r) Lord Southampton v. Brown, 
 
 auctioneer's personal liability for 6 B. & C. 718 ; Feckham v. Drake, 
 
 non-dolivcrytoa purchaser of goods 9 M. & W. at p. 95. 
 
 bought at the auction, Woolfe v. («) Fickcring^s claim, 6 Ch. 525. 
 Home, 2 Q. B. D. 355.
 
 CONTRACTS OF AGENTS. 99 
 
 to show thcat when an agent is in a position to accept bills 
 so as to bind his principal, the principal is liable though 
 the agent signs not in the principal's name but in his own, 
 or, it would appear, in any other name. It is the same as 
 if the principal had signed a wrong name with his own 
 hand (t). 
 
 Again, an agent who would otherwise bo liable on the Evidence 
 contract made by him may exempt himself from liability ^^ ^'^^- 
 by contracting in such a form as makes it appear on the iutcution 
 face of the contract that he is contracting as agent only ^ '" 
 and not for himself as principal {u) : but even then he 
 may be treated as a contracting party and personally 
 bound as well as his principal by the custom of the 
 particular trade in which he is dealing (x). Or he may 
 limit his liability by special stipulations, e.g. when a 
 charter-party is executed by an agent for an unnamed 
 freighter, and the agent's signature is unqualified, but 
 the charter-party contains a clause providing that the 
 agent's responsibility shall cease as soon as the cargo is 
 shipped (y). 
 
 It is also a rule that an agent for a government is not 
 personally a party to a contract made by him on behalf of 
 such government by reason merely of having made the 
 
 (f) Lindus v. Brachcell, 5 C. B. account of " a named principal con- 
 
 583, 17 L. J. C. P. 123. Cp. Ed- clusively discharges the agent. 
 
 micnds v. Bushell, L. R. 1 Q. B. 97. Faice v. Walker is nearly but not 
 
 {ic) Words in the body of a docu- quite overruled : see Hough v. Man- 
 
 ment which amount to a personal za)ws, 4 Ex. D. 104. 
 
 contract by the agent are not do- {x) Enmfrc)/ v. Dale, 7 E. k B. 
 
 prived of their effect by a qualified 2G6, E. B. & E. 1004, 2G L. J. Q. 
 
 signature : Lennard v. Robbison, 5 B. 137 ; Fleet v. Murton, L. E. 7 
 
 E & B. 125, 24 L. J. Q. B. 275; Q. B. 126, 129; Hutchinson v. 
 
 Hutcheson Y.Eaton, C.A., 13 Q.B. Tatham, L. R. 8 C. P. 482. On 
 
 D.861,seeperBrettM.Il.atp.865; the general question of the con- 
 
 and the description of him as agent striiction of contracts made by 
 
 in the body of the document may brokers for their principals see 
 
 under special circumstances not bo iSoiif/uvcU v. Boicdilch (C. A.) 1 C. 
 
 enough to make him safe, Faiee v. P. D. 374. 
 
 Walker, L. R. 5 Ex. 173 ; see the (y) Ogleshy v. Yglesias, E. B. & 
 
 remarks on that case in Gadd v. E. 930, 27 L. J. Q. B. 35G ; Carry. 
 
 Houghton (G. A.) 1 Ex. D. 357, Jaclsoii, 7 Ex. 382. 
 which decides that a contract ' ' on 
 
 h2
 
 100 
 
 CAPACITY OF PARTIES. 
 
 contract in his own name (z). In some cases tlie agent, 
 though, prima facie not a party to the contract as agent, 
 can yet sue or be sued as principal on a contract which he 
 has made as agent. These will be mentioned under 
 another head of this subject {a). 
 
 Where an undertaking is given in general terms, no 
 promisee being named, to a person who obviously cannot 
 be a principal in the matter, it may be inferred as a fact 
 from the circumstances that some other person interested 
 is the real unnamed principal, and that person may re- 
 cover on the contract [h) . 
 
 B. Agent 
 not known 
 to be an 
 agent. 
 Generally 
 there is a 
 contract 
 "with the 
 undis- 
 closed 
 principal. 
 Excep- 
 tions. 
 
 B. When a party contracts with an agent whom he does 
 not know to be an agent, the imdisclosed principal is 
 generally bound by the contract and entitled to enforce it, 
 as well as the agent with whom the contract is made in 
 the first instance (c) . 
 
 But the limitations of this rule are important. In the 
 first place, it does not apply where an agent for an 
 undisclosed principal contracts in such terms as import 
 that he is the real and only principal. There the principal 
 cannot afterwards sue on the contract {d ) . Much less, of 
 course, could he do so if the nature of the contract itself 
 (for instance, partnership) were inconsistent with a prin- 
 cipal unknown at the time taking the place of the apparent 
 contracting party. Likewise, " if the principal represents 
 the agent as principal he is bound by that representation. 
 So if he stands by and allows a third person innocently to 
 treat with the agent as principal he cannot afterwards 
 turn round and sue him in his own name" {c). 
 
 (2) Machealh v. Ilaldimand, 1 T. 
 R. 172, cp. ib. G74 ; Gidlcy v. Lord 
 Palmcrston, 3 Bro. & Bing. 275 ; 
 Story on Agency, § 302, sqq. 
 
 (a) Infra, pp. lOG, 108. 
 
 (b) Weidner v. Eoggetty 1 C. P. 
 D. 533. 
 
 {e) The rule is not excluded by 
 the contract being in writing (not 
 
 under seal) and signed by the agent 
 in liis own name : JieckJiam v. Drake, 
 9M. & W. at p. 91. 
 
 (rf) Humble v. Hunter, 12 Q. B. 
 310, 17 L. J. Q. B. 350. 
 
 {e) Ferrand v. BiscJiofshcim, 4 
 C. B. N. S. 710, 716, 27 L. J. C. 
 P. 302.
 
 CONTRACTS OF AGENTS. 101 
 
 Again, in tlie cases to wliich the rule does apply, the Limita- 
 rights of both the undisclosed principal and the other con- thTrulo 
 tracting party are qualijfied as follows : ^'^len it 
 
 The principal "must take the contract subject to all A^to " 
 
 equities in the same way as if the agent were the sole ^"'q^^*? ^\ 
 ■'■ .... pnucii)al. 
 
 principal" (/). Accordingly if the principal sues on the 
 contract the other party may avail himself of any defence 
 which would have been good against the agent {(j) : thus 
 a purchaser of goods through a factor may set off a claim 
 against the factor in an action by the factor's principal for 
 the price of the goods {/i). "Where a contract is made 
 by an agent for an undisclosed principal, the principal 
 may enforce performance of it, subject to this qualification, 
 that the jjerson who deals with the agent shall be put in 
 the same ])ositio)i as if he had been dealing with the real 
 principal, and consequently he is to have the same right 
 of set-off which he would have had against the agent " (/). 
 And his claim to be allowed such set-off is not effectually 
 met by the reply that when he dealt with the agent he 
 had the means of knowing that he was only an agent. 
 The existence of means of knowledge is not material 
 except as evidence of actual knowledge {k). 
 
 It has been said that conversely the right of the other As to 
 contracting party to hold the principal liable is subject to ^j° ^^^^^ 
 
 party. 
 
 (/) story on Agency, ^ -120 ; per tually authorized by his principal 
 
 Parke, B. Beckham v. Brake, 9 M. to sell in his own name without 
 
 & W. at p. 98. disclosing the agency : Ex parte 
 
 [g) If the agent sues in his own Dixon, 4 Ch. D. 133 ; nor what 
 
 name the other party cannot set off restrictions may, as between him- 
 
 adcbt due from the principal whom self and the principal, be imposed 
 
 he has in the meantime discovered, on him as to the price he is to sell 
 
 there being no mutual debt within at : Stevens v. Biller, C. A., 25 Ch. 
 
 the statute of set-off: Isberc/ v. D. 31. 
 
 Boxcden, 8 Ex. 852. Under the {i) Per Willes, J. Dresser v. Kor- 
 
 Judicature Acts, however, ho can tcooii, 14 C. B. N". S. 574, 589, 32 
 
 make the principal a party to the L. J. C. P. 201, 205. The reversal 
 
 action by counter-claim and have of this case in the Ex. Ch. 17-C. B. 
 
 the whole matter disposed of. N. S. 406, 34 L. J. C. P. 48, does 
 
 {h) Itabone v. Williams, 7 T. E,. not affect this statement of the 
 
 360, n. ; Sims v. Bond, 5 B. & Ad. general law. 
 
 393. Per Cui\, Isherg v. Boivden, (k) Borries v. Imperial Ottoman 
 
 8 Ex. at p. 859. It does not matter Bank, L. R. 9 C. P. 38. 
 whether the factor is or is not ac-
 
 102 CAPACITY OF PARTIES. 
 
 tlie qualification that the state of the account between 
 the principal and the agent must not he altered to tlie 
 prejudice of the principal. But this doctrine has been 
 disapproved by the Court of Appeal as going too far. The 
 principal is discharged as against the other party by payment 
 to his own agent only if that i^arty has by his conduct led 
 the principal to believe that he has settled with the agent, 
 or, perhaps, if the principal has in good faith paid the 
 agent at a time when the other party still gave credit to 
 the agent alone, and would naturally, from some peculiar 
 character of the business or otherwise, be supposed by the 
 principal to do so (/). 
 
 Again, the other party may choose to give credit to the 
 agent exclusively after discovering the principal, and in 
 that case he cannot afterwards hold the principal liable ; 
 and statements or conduct of the party which lead the 
 principal to believe that the agent only will be held liable, 
 and on the faith of which the principal acts, will have the 
 same result (m). And though the party may elect to sue 
 the principal, yet he must make such election within a 
 reasonable time after discovering him {n). When it is 
 said that he has a right of election, this means that he 
 may sue either the principal or the agent, or may com- 
 mence proceedings against both, but may only sue one of 
 them to judgment ; and a judgment obtained against one, 
 though unsatisfied, is a bar to an action against the other. 
 It was decided in Priesthj v. FcDiie (o) that such is the 
 rule as to principal and agent in general, and that there is 
 no exception in the case of a shipowner and freighter, 
 which was the case before the Court. 
 
 (/) Irvine v. Watson (C. A.), 5 is not discharged unless he has ac- 
 
 Q. B. D. 41-1, which seems on this tually dealt with the agent on the 
 
 point to reduce the authority of faith of the other party's conduct 
 
 Armslrour/ v. iStokcs, L. R. 7 Q. B. so as to change his position : Wyatt 
 
 598, to that of a decision on pecu- v. Hertford, 'd East, 147. 
 
 liar facts. («) tSmcthurst v. Mitchell, 1 E. & 
 
 {m) Story on Agency, ^ 279, E. G22, 28 L. J. Q. B. 241. 
 
 288, 291 ; Horsfall v. I'aunthroy, {o) 3 H. & C. 977, 983, 34 L. J. 
 
 10 B. & C. 755 ; but the principal Ex. 173 ; cp. L. R. G C. T. 499.
 
 CONTRACTS OF AGENTS. 103 
 
 The more commencemeiit of proceedings against tlio 
 agent or liis estate after the principal is discovered, although 
 it may possibly be evidence of an election to charge the 
 agent only, does not amount to an election in point of 
 law Qj). 
 
 2. We have now to point out the results which follow 2. Tro- 
 when a man professes to make a contract as agent, but agent not 
 is in truth not an agent, that is, has no responsible ^^^^^fit^ 
 principal. 
 
 We may put out of consideration all cases in which the 
 professed agent is on the face of the contract personally 
 bound as well as his pretended principal : for his own con- 
 tract cannot be the less valid because the contract he pro- 
 fessed at the same time to make for another has no effect. 
 But when the contract is not by its form or otherwise such 
 as would of itself make the professed agent a party to it, 
 there are several distinctions to be observed. 
 
 A. First, let us take the cases where a principal is a. Prin- 
 named. The other party prima facie enters into the ^^P^^ , 
 
 . , , . named. 
 
 contract on the faith of that principal's credit. But credit 
 cannot be presumed to be given except to a party who is 
 capable of being bound by the contract : hence it is 
 material whether the alleged principal is one who might 
 authorize or ratify the contract, but does not, or is one 
 who could not possibly do so. 
 
 a. The more frequent case is where the party named as «. who 
 principal is one who might be responsible. might bo 
 
 It is now settled law that, subject to the qualifications sible. 
 which will appear, the pretended agent has not in that 
 case either the rights or the liabilities of a principal on 
 the contract. 
 
 (p) Curtis V. WiUiamson, L. R. 10 Q. B. 57.
 
 104 
 
 CAPACITY OF PARTIES. 
 
 Professed 
 agent 
 cannot sue 
 on the 
 contract. 
 
 Contra in 
 equity. 
 Felluwe.s 
 V. Loi'd 
 Gwydyr : 
 sed (ju. 
 
 First, as to his rights. In Biclierton v. Burrell {q) the 
 plaintiff had signed a memorandum of purchase at an 
 auction as agent for a named principaL Afterwards he 
 sued in his own name to recover the deposit then paid 
 from the auctioneer, and offered evidence that he was 
 really a principal in the transaction. But he was non- 
 suited at the trial, and this was upheld by the full Court. 
 It was laid down (per Lord EUenhorough, C. J., Bayley, 
 Abbott, and Holroyd, JJ., concurring) that "where a man 
 assigns himself as agent to a person named, the law will 
 not allow him to shift his position, declaring himself prin- 
 cipal and the other a creature of straw ... A man 
 who has dealt with another as agent (r) is not at liberty 
 to retract that character Ktthout notice and to turn round 
 and sue in the character of principal. The plaintiff misled 
 the defendant and was bound to undeceive him before 
 bringing an action." This leaves it doubtful what would 
 have been the precise effect of the plaintiff giving notice 
 of his real position before suing : but the modern cases 
 seem to show that it would only have put the defendant 
 to his election to treat the contract as a subsisting contract 
 between himself and the plaintiff or to repudiate it at once. 
 Before we come to these it must be mentioned that there 
 is a reported case in equity which appears to be directly 
 opposed to Biclxcrton v. Burrell. This is Fellou-cs v. Lord 
 Gwydyr (.s). The facts were shortly these. Lord Grwydyr 
 was entitled as Deputy Great Chamberlain to the decora- 
 tions used in Westminster Hall at the coronation of 
 Greorge IV. He sold these to the plaintiff Fellowes, who 
 re-sold them to the defendant Page at an advanced price, 
 but professed to be selling as the agent of Lord Grwydyr, 
 and signed tlie agreement for sale in that character. 
 Fellowes, being unable to procure Lord Grwydyr's consent 
 to his name being used in an action, sued Page in his own 
 
 {q) 5 M. & S. 383. 
 
 ()•) /. c. for a named and respon- 
 
 sible principal. 
 
 («) 1 Him. 63, 1 Euss. & M. 83.
 
 CONTRACTS OF AGENTS. 105 
 
 name in equity for a balance due on the agreement. It 
 was argued for the defendant that he had been misled " as 
 to a most important ingredient in the contract, as to the 
 person, namely, Avith whom he had really contracted" (t). 
 And moreover it is difficult, for other reasons mentioned 
 in the argument (/), to see what equity the plaintiff had 
 except on some notion that there must always be a remedy 
 in equity when there appears to be none at law. How- 
 ever it was held by Sir John Leach, V.-C, and by Lord 
 Lyndhurst on appeal, that Page could not resist the per- 
 formance of the contract without showing that he had 
 been actually prejudiced by having it concealed from him 
 that Fellowes was the real principal. It is submitted that 
 this decision is contrary to the principles laid down in 
 JBicJcerfoJi v. Burrell and the other cases to be presently 
 cited ; that there is no intelligible reason for any distinc- 
 tion between common law and equity on a question of 
 contract or no contract; and that consequently FcUoiccs 
 V. Lord Gicydij)' is not law {u). 
 
 The doctrine under consideration was further defined in Rayner v. 
 Rayncr v. Grote [x). There the plaintiff sued to recover a 
 balance due upon the sale by him to the defendants of a 
 quantity of soda ash according to a bought note in this 
 form : — "I have this day bought from you the following 
 goods from J. Sf T. Joltnson — 50 tons soda ash, . . . 
 J. H. Rayner." It was proved that the plaintiff was the 
 real owner of the goods, and 13 tons out of the 50 had 
 been delivered to the defendants and accepted by them at 
 a tune when there was strong evidence to show that they 
 knew the plaintiff to be the real principal. The law was 
 stated as follows (y) : — 
 
 [t) 1 Russ. & M. at P13. 85, 88. the case within Haijner v. Grotc, 15 
 
 (m) It may be that the decision M. & W. 359 ; but tliis is not meu- 
 
 •was right on the facts, on the tioned in the judgments. 
 
 ground that Page continued to act {x) 15 M. & W. 359. 
 
 under the contract after knowing {y) Per Cur. at p. 365 ; and see 
 
 the true state of tilings (as was said the remarks on Bickerton v. BurreU, 
 
 in argument for the plaintiff, 1 ad Jin. 
 
 Kuss. & M. 83), which would bring
 
 106 
 
 CAPACITY OF PARTIES. 
 
 Nor can 
 the pro- 
 fessed 
 agent be 
 sued on 
 the con- 
 tract. 
 Implied 
 "warranty 
 of autho- 
 rity. 
 
 " lu many such cases [viz. where the contract is wholly unperformed] 
 such as for instance the case of contracts in which the skill or solvency 
 of the person who is named as the principal may reasonably bo con- 
 sidered as a material ingredient in the contract, it is clear that the agent 
 cannot then show himself to be the real principal and sue in his own 
 name ; and perhaps it may be fairly urged that this, in all executory 
 contracts, if wholly unperformed, or if partly performed without tho 
 knowledge of who is the real principal, may be the general rule." 
 
 But here part performance had been accepted by the 
 defendants with full knowledge that the plaintiff was the 
 real principal, and it was therefore considered that the 
 plaintiff was entitled to recover. 
 
 Next, as to the pretended agent's liability. It was at 
 one time thought that an agent for a named principal who 
 turned out to have no authority might be sued as a prin- 
 cipal on the contract (z). But it has been determined 
 that he is not liable on the contract itself {a). He is liable 
 however on an implied warranty of his authority to bind 
 his principal. This was decided in Colloi v. Wright {b), 
 and has been followed in several later cases (c). The pre- 
 tended agent is also generally liable to an action in tort (d) . 
 A somewhat similar doctrine of implied warranty has 
 been acted on in the case of the contract to marry. A 
 person who promises marriage also promises or warrants 
 that he is legally capable of marrying, and is therefore 
 not the less liable for a breach of promise though it may 
 be questionable whether the actual promise to marry was 
 not unlawful (('). 
 
 {z) Cp. Pothier, Obi. § 75. 
 
 (ii) Lewis V. Kichohon, 18 Q. B. 
 503, 21 L. J. Q. B. 311. 
 
 [h) 7E. &B. 301, 26L. J. Q.B. 
 147 ; in Ex. Ch. 8 E. & B. 647, 27 
 L. J. Q. B. 215. 
 
 (c) Richardson v. WiUiamson, L. 
 R. 6 Q. B. 27G ; Cherri/ v. Colonial 
 Bank of Australia, L. E,. 3 P. C. 24, 
 31. But the representation of tho 
 agent that he lias authority must 
 be a representation of matter of fact 
 and not of law : Beatiic v. Lord 
 Bbury, L. R. 7 Ch. 777, 7 H. L. 
 102 ; Weeks v. Frojm-t, L. R. 8 C. 
 
 P. 427, 437. As to the measure of 
 damages, Simons v. Patchctt, 7 E. & 
 B. 568, 26 L. J. Q. B. 195 ; Sped- 
 dingv. Nevell, L. E. 4 C. P. 212; 
 Godirin v. Francis, L. R. 5 C. P. 
 295 ; Ex parte Fannuirc, 24Ch.D.367. 
 
 [d) Famh'll v. Trimen, 18 C. B. 
 786, 25 L. J. C. P. 307. The object 
 of establishing the liability ex con- 
 tractu Avas to have a remedy against 
 executors. 
 
 {c) Milhvard v. Littlcu'ood, 5 Ex. 
 775, 20 L. J. Ex. 2 ; and this seema 
 to be the true ground of the earlier 
 decisions of tho Court of 0. P. in
 
 CONTRACTS OF AGENTS. 107 
 
 /3. Tho rules last stated arc applicaLle only where tlio P. Alleged 
 alleged principal was ascertained and existing at the time ^vho'^couid 
 the contract was made, and might have been in fact ^ot Le re- 
 
 T siJonsible : 
 
 prmcipai. professed 
 
 Here the doctrine of ratification is important. When a ^^?3ed 
 principal is named or described, but is not capable of autho- principal, 
 rizing the contract so as to be bound by it at tho time, 
 there can be no binding ratification : for " ratification must 
 be by an existing person on whose behalf a contract might 
 have been made at the time " (/). 
 
 There fall imder this head contracts entered into by 
 professed agents on behalf of wholly fictitious persons, or 
 uncertain persons or sets of persons Avith whom no con- 
 tract can be made by the description given, persons in 
 existence but incapable of contracting, and lastly (which 
 is in practice the most important case) proposed companies 
 which have not yet acquired a legal existence {{/). Now 
 when a principal is named who might have authorized the 
 contract, there is at the time of the contract a possibility 
 of his being bound by subsequent ratification. But when 
 the alleged principal could not have authorized the con- 
 tract, then it is plain from the beginning that the contract 
 can have no operation at all unless it binds the professed 
 agent. It is construed accordingly nt res magis valeat quam 
 pereat, and he is held to have contracted in person [h) . 
 
 This principle has been carried so far that in a case 
 where certain persons, churchwardens and overseers of a 
 
 Wilde V. Harris, 7 C. B. 999, IS L. solid reason for the rule, but it is an 
 
 J. C. P. 297. This however is not established one. 
 properly a warranty, for it was (ff) KehierY. Baxter, Ij.'R.'lCV. 
 
 treated as a term in the principal 174, and authorities there referred 
 
 contract itself . Cp. chap. VI. below, to: Scott y. Lord Eburij, ib. 255; 
 
 ad fin. Empress E>igi)ieering Co. (C. A.), 16 
 
 (/) Per Willes, J. and Byles, J. Ch. D. 125, which overrules /S>j//cr 
 
 Kelner v. Baxter, L. R. 2 C. P. 174, v. Paris Skating Rink Co., 7 Ch. D. 
 
 185; Scott Y. Lord Ebury, ib. 255, 368. Companies have been held in 
 
 267. When ratification is admitted equity to be bound by the agree- 
 
 tho original contract is imputed by ments of their promoters, but on 
 
 a fiction of law to the person ratify- grounds indei^endent of contract, 
 
 ing; and the fiction is not allowed See Lindlcy, 1. 363, 395. 
 to be extended beyond the bounds (A) Kelner v. Baxter, at pp. 183, 
 
 of possibility. Perhaps there is no 185.
 
 108 CAPACITY OF PAKTIES. 
 
 parish, covenanted " for themselves and for their successors, 
 churchwardens and overseers of the parish," and there was 
 an express proviso that the covenant should not bind the 
 covenantors personally, but was intended to bind the 
 churchwardens and overseers of the parish for the time 
 being as such churchwardens, &c., but not otherwise, it 
 was held that since the funds of the parish could not be 
 bound by the instrument in the manner intended, the 
 effect of the proviso was to make no one liable on the 
 covenant at all, and therefore the proviso was repugnant 
 and void, and the covenantors were personally liable {i). 
 
 Accordingly the proper course for the other contracting 
 party is to sue the agent as principal on the contract itself, 
 and he need not resort to the doctrine of implied war- 
 ranty {J). And as the agent can be sued, so it is appre- 
 hended that, in the absence of fraud, he might sue on the 
 contract in his own name. 
 
 When A slightly different case is where a man professes to con- 
 
 a™uTinav ^^'^^^ ^^ agent, but without naming his principal. He is 
 
 be his own then (as said above) jjrima facie personally liable in his 
 
 principal, character of agent. But even if the contract is so framed 
 
 as to exclude that liability (and therefore any correlative 
 
 right to sue), he is not precluded from showing that he 
 
 himself is the principal and suing in that character. This 
 
 was decided in Schmaltz v. Avery {Ix). The action was on 
 
 (i) Furnival v. C'oombes, 5 M. & intention, but was rejected as con- 
 
 Gr. 736. But the doctrine of this trary to the terms of the writing 
 
 case will certainly never be ex- sued upon. 
 
 tended (see WiUiams v. llathawan, (./) Kelmr v. Baxter, supra. Cp. 
 
 CCh.D. 544); and it maybe doubted West London Commercial Bank v. 
 
 whether it would api)ly at all to an Kiison, 12 Q. B. D. 157, where a 
 
 instrument not under seal. It is bill was accepted by directors on 
 
 clearly competent to the parties to behalf of a company'which had no 
 
 such an iustrumcnt to make its jDower to accept bills ; the liability 
 
 operation as a contract conditional was put on the ground of deceit in 
 
 on any event they please: and in C. A., 13 Q. B. D. 360. 
 
 Buch a case as this why may they (/■) 16 Q. B. 6.55 (the statement 
 
 not agree that nobody shall be of the facts is taken from the judg- 
 
 bound if the principal cannot be ? mcnt of the Court, p. 658) ; 20 L. J. 
 
 In Kelner v. Baxter oral evidence Q. B. 228. 
 was offered that such was the
 
 CONTRACTS OF AGENTS. 109 
 
 a cliarter-party. The cliarter-party in tenns stated that it 
 was made by Schmaltz & Co, (the plaintiffs) as agents for 
 the freighters : it then stated the terms of the contract, 
 and concluded in these words : " This charter being con- 
 cluded on behalf of another party, it is agreed that all 
 responsibihty on the part of G. Schmaltz & Co. shall cease 
 as soon as the cargo is shipped." This clause was not 
 referred to in the declaration, nor was the character of the 
 plaintiff as agent mentioned, but he was treated as prin- 
 cipal in the contract. At the trial it was proved that the 
 plaintiff was in point of fact the real freighter. Before 
 the Court in banc the cases of Biclierton v. BurreU and 
 Raynev v. Grote {I) were relied on for the defence, but it 
 was pointed out that in those cases the agent named a 
 principal on the faith of whose personal credit the other 
 party might have meant to contract. Here " the names 
 of the supposed freighters not being inserted, no induce- 
 ment to enter into the contract from the supposed solvency 
 of the freighters [could] be siu-mised. . . . The plaintiff 
 might contract as agent for the freighter, whoever the 
 freighter might turn out to be, and might still adopt that 
 character of freighter himself if he chose" {in). And con- 
 versely, a man who has contracted in this form may never- 
 theless be sued on the contract as his own undisclosed 
 principal, if the other party can show that he is in truth 
 the principal, but not otherwise (>i). In the same manner 
 it is open to one of several persons with whom a contract 
 was nominally made to show that he alone was the real 
 principal, and to sue alone upon the contract accord- 
 ingly (o). 
 
 {T) See pp. 104, 105, above. Moreover (ScA/ws^iJ^ v. ^i'«7 was not 
 
 (?w) In a later case in the Ex- cited, 
 
 chequer Chamber {Sharman v. («) C«jt v. /«cA-so?!, 7 Ex. 382, 21 
 
 Brandt, L. E. 6 Q. B. 720) there L. J. Ex. 137. 
 
 are some expressions not very con- (o) Spurr v. Cass, L. R. 5 Q. B. 
 
 sistent with this, but they were by 656. 
 no means necessary for the decision.
 
 no 
 
 CAPACITY or PARTIES. 
 
 Indian The subjoct-iiiatter of the foregoing discussion is dealt 
 
 Contract ^^^ generally by ss. 226—238 of the Indian Contract 
 
 Act. The rules as to the parties to a contract made with 
 
 an agent are given in s. 230. 
 
 " In the absence of any contract to that effect an agent cannot 
 personally enforce contracts entered into by him on behalf of his 
 principal, nor is he personally bound by them. 
 
 Such a contract shall be presumed to exist in the following 
 cases : — 
 
 (1) Where the contract is made by an agent for the sale or purchase 
 of goods for a merchant resident abroad ; 
 
 (2) Where the agent does not disclose the name of his principal ; 
 
 (3) Where the principal, though disclosed, cannot be sued." 
 
 This is based upon English law, but does not exactly 
 represent it, as it omits to provide any fixed rule for the 
 treatment of contracts made by an agent in writing. To 
 make it correspond with English decisions, at least since 
 Fket V. Miirton (p) and Hutchinson v. Tathani (q), we 
 should have to replace sub-s. 2 by words to this effect — 
 
 " Where it does not appear on the face of the contract 
 that the agent is contracting only as agent for a prin- 
 cipal." 
 
 Artificial 
 persons : 
 their 
 nature. 
 
 II. Artificial Persons. 
 
 In a complex state of civilization, such as that of the 
 Roman Empire, or still more of the modern Western 
 nations, it constantly happens that legal transactions have 
 to be undertaken, rights acquired and exercised, and duties 
 incurred by a succession of sole or joint holders of an office 
 of a public nature involving the tenure and administration 
 of property for public purposes, or by or on behalf of a 
 number of persons who are for the time being interested 
 in carrying out a common enterprise or object. This 
 enterprise or object may or may not be of a kind likely to 
 
 (;;) L. R. 7 Q. B. 129. 
 
 {q) L. R. 8 0. P. 482.
 
 CORPORATIONS. HI 
 
 be worked out within a definite time, and may or may not 
 farther involve purposes and interests of a public nature. 
 The rights and duties thus created as against the world at 
 large are in truth and substance wholly distinct from the 
 rights and duties of the particular persons immediately 
 concerned in the transactions. Those persons deal with 
 interests beyond their own, though in many eases including 
 or involving them, and it is not to their personal responsi- 
 bility that third parties dealing with them are accustomed 
 to look. 
 
 This distinction (the substantial character of which it is 
 important to bear in mind) is conveniently expressed in 
 form by the Roman invention, adopted and largely de- 
 veloped in modern systems of law, of constituting the 
 ofiicial character of the holders for the time being of the 
 same office, or the common interest of the persons who for 
 the time being are adventurers in the same undertaking, 
 into an artificial person (/■) or ideal subject of legal capa- 
 cities and duties. If it is allowable to illustrate one fiction 
 by another, we may say that the artificial person is a 
 fictitious substance conceived as supporting legal attri- 
 butes. It would not be very difficult to show, were it not 
 a matter of metaphysical rather than of legal interest, that 
 what we call the artificial identity of a corporation is 
 within its own sphere and for its own purposes just as real 
 as any other identity (.s) . This creature of the law becomes, 
 within the limits assigned to its existence, " a body dis- 
 tinct from the members composing it, and having rights 
 and obligations distinct from those of its members" (f). 
 
 (r) Fr. corps or etre moral, per- any state is treated as a person 
 
 Sonne morale (but this does not dwelling in, and therefore a citizen 
 
 necessarily import capacity to sue of, that state within the meauino- of 
 
 or be sued in a corporate name) ; the constitutional provision which 
 
 Germ, juristische Ferson. Kent, enables the Federal coiu-ts to enter- 
 
 Comm. 2. 268, uses the term tain suits between citizens of 
 
 ' moral person,' but it has not different states. See Marshall v. 
 
 been generally adopted by English Baltimore and Ohio Railr. Co., 16 
 
 writers. Howard, 314. 
 
 (s) In the United States a cor- {t) The name of the firm may now 
 
 poration duly created by the laws of be used in pleadings, but the com-
 
 112 CAPACITY OF PARTIES. 
 
 Note, however, that this kind of fiction is not confined to 
 legal usage or legal purposes. In the case of an ordinary 
 partnership the firm is treated by mercantile usage as an 
 artificial person, hut is not recognized as such by the 
 law {i() ; and other voluntary and imincorporated associa- 
 tions are constantly treated as artificial persons in the 
 language and transactions of every-day life. An even 
 more remarkable instance is furnished by the artificial 
 personality which is ascribed to the public journals by 
 literary custom or etiquette, and is so familiar in writing 
 and conversation that its curiosity most commonly escapes 
 attention. But with these artificial persons by private 
 convention, if we may so call them, we are not further 
 concerned. 
 
 Corpora- The Only artificial persons which in England have a 
 twns sole Yeg^l existence consist for the time being of natural per- 
 aggre- ggns who are invested with the legal attributes above men- 
 faster onryr tioned, and are known as corporations {v). These are 
 
 need be either sole, i.e., of which there is only one member at a 
 derecl. time ; or aggregate, i.e., of which there are several mem- 
 bers. The principal instances of corporations sole are 
 ecclesiastical persons ; of late years the holders of divers 
 public offices have been made corporations sole by statute {x). 
 The Sovereign is also said to be a corporation sole, but sui 
 
 plete recognition of the fii'm as an conception of a corporation as 
 
 artificial person involves much more trustee, he supposes the artificial 
 
 than this. person in such cases to be not the 
 
 (?<) See note (t), above. incorporated governing body, but 
 
 {v) The Roman law shows that the object of the charitable foun- 
 
 other kinds of artificial persons are dation itself. 
 
 at least conceivable : e. g. the here- {x) Such are the Official Trustee 
 
 ditas iacens, to which however of Charity Land, the Solicitor to 
 
 Savigny denies that tliis character the Treasury (39 & 40 Vict. c. 18). 
 
 really belonged; Syst. § 102 (3. Corporations aggregate consisting 
 
 363-373). Savigny restricts tho of voiy few members have been 
 
 use of the terra corporation so created by statute or otherwise for 
 
 as to exclude charitable founda- special purposes: thus 59 Geo. 3, 
 
 tions: op. cil.'MZ-i. The difficulty c. 12, s. 17, incorporates the 
 
 set forth in his note arises simply churcliwarden and overseers for 
 
 from tho absence in Roman law of the purpose of holding parish pro- 
 
 any tcnn of art co-extensive with perty. 
 our Trust : not having at hand tho
 
 COIirORATIONS. 113 
 
 generis (//). In the case of a corporation sole the power of 
 administering the corporate property and binding the cor- 
 porate funds is for the most part not left to him alone, but 
 belongs Avholly or in part to a corporation aggregate of 
 which tlie corporation sole is one member, or to some 
 other body ; or is guarded by statutory precautions. And 
 it seems that a corporation sole cannot enter into a con- 
 tract (except with statutory authority, or as incidental to 
 an interest in land) in his corporate capacity ; a.t any rate 
 the right of action on a contract made with him cannot 
 pass to his successor, but only to his executors, unless 'bj 
 special custom (c). There is such a custom (for a limited 
 purpose) in the case of the Chamberlain of the City of 
 London {a). But no principles of general application or 
 interest are to be found in this quarter, and we may prac- 
 tically confine our attention to corporations aggregate. 
 
 We have to ascertain what contracts corporate bodies 
 can make, and how they are to be made. The second 
 of these questions is reserved for the following chapter on 
 the Form of Contracts. 
 
 The first cannot be adequately treated except in con- 
 nexion with a wider view of the capacities, powers, and 
 liabilities of corporations in general. 
 
 The capacities of corporations are limited Capacities 
 
 (i) By natural possibility, i.e., by the fact that they are bUities of 
 artificial and not natural persons : Corpora - 
 
 (ii) By legal possibility, i.e., by the restrictions which limited by 
 
 (y) Allen on the Royal Preroga- antiquity very plainly : so Co. Lit. 
 
 tive, pp. 5, 2G. 4Gi "regularly no chattel can go in 
 
 (c) Generally "bishops, cleans, succession in a caseof a solecorpora- 
 
 parsons, vicars, and the like cannot tion ;" it was otherwise in the case 
 
 take obligation to them and their of the head of a rehgious house, as 
 
 successors, but it will go to the he could not make a will, Ro. Ab. 1. 
 
 executors." ArundeVscni.'S.ob.Qii; bib. And see Crant on Coi-pora- 
 
 acc. Howie)/ x.KuUjht, 14 Q. B. 240; tions, 629, 633, sqq. 
 the case in the Year Book referred {a) Bacon Ab. 2. 582, Customs 
 
 to by the reporters (at p. 244; P. 20 of Loudon, B ; Hoivley v. Knight, 
 
 E. 4, 2, pi. 7) shows the rule and its supra. 
 
 r. I
 
 114 CAPACITY OF PARTIES. 
 
 the nature the power creating a corporation may impose on the legal 
 
 artificial existence and action of its creature. 
 
 person. First, of the limits set to the powers and liahilities of 
 
 corporations by the mere fact that they are not natural 
 persons. The requu-ement of a common seal (of which 
 elsewhere) is sometnnes said to spring from the artificial 
 nature of a corporation. The fact that it is not known in 
 Scotland is however enough to show that it is a mere 
 positive rule of English law. The correct and comprehen- 
 sive proposition is that a corporation can do no act except 
 by an agent (for even if all the members concur they are 
 but agents) ; and it follows that it cannot do or be answer- 
 able for anything of a strictly personal nature. It cannot 
 commit a crime in the strict sense, such as treason, felony, 
 perjury, or offences against the person (b) ; though any or 
 all of the members or officers of a corporation who should 
 commit acts of this kind {e.g., should levy war against the 
 Queen) under colour of the corporate name and authority 
 would be individually liable to the ordinary consequences. 
 " Offences, certainly offences of commission, are the offences 
 of individuals, not of corporations" {c). Nor can it enter 
 into any strictly personal contract or relation {d), nor 
 undertake duties which, though it might be strictly 
 possible for a corporation to perform them by its officers 
 
 As to acts or agents, are on the whole of a personal kind {c) . On 
 the other hand, though able to act only by an agent, it is 
 
 (b) Reg. v. G. K. of Eng. Eg. Co., it necessary to state in terms that a 
 9 Q. B. 315, 326 : nor, it is said, corporation cannot be married or 
 can it be excommunicated, for it have any next of kia. The state- 
 has no soul: 10 Co. Rep. 32 i. So ment is to be found in Savigny, 
 it cannot do homage: Co. Litt. Syst. 3. 239; but is in part not 
 66 b. Nor can it be subject to the quite so old as it looks, as in Roman 
 jurisdiction of a customary court \ixv^patriapotcstasa.u(\.s\\i\\eia.viyilj 
 whose process is exclusively per- relations arising therefrom might 
 Bonal : iMidon Joint Stock Bank v. be acquired by Adoption. 
 Magor of London, 1 C. P. D. 1, in (c) Bramwell, L. J. 5 Q. B. D. 
 C. A. chiefly on other grounds, 5 at p. 313. 
 C. P. D. 494; affirmed on this {d) See note (/>). 
 point in the House of Lords, G (r) Ex parte Swansea Friendly 
 App. Ca. 393. Wo are not aware Societg, 11 Ch. D. 7G8. 
 thatany English writer has thought 
 
 of agents.
 
 CORPORATIONS. 115 
 
 subject to tlie same liabilities as any other" employer for 
 the acts of its agents done in the course of their employ- 
 ment, and is therefore liable ex delicto for damage resulting 
 from their negligence in the course of such employment, 
 and also must answer for anything done by them which, 
 though positively wrongful in itself under its particular 
 circumstances, belongs to a class of acts which, is authorized 
 and within the scope of their business (/). And not- 
 withstanding the apparent contradiction of imputing a 
 fraudulent intention to a corporate body, it may be made 
 liable in an action of deceit for the fraud of its agent 
 committed in the course of the corporation's aflPairs {g). 
 And the same principle is extended to make it generally 
 subject to all liabilities incidental to its corporate existence 
 and acts, though the remedy may be in form ex delicto or 
 even criminal. Although it cannot commit a real crime, Indictable 
 " it may be guilty as a body corporate of commanding acts ^gea™*^ 
 to be done to the nuisance of the community at large," 
 and may be indicted for a nuisance produced by the 
 execution of its works or conduct of its business in an 
 improper or unauthorized manner, as for obstructing a 
 highway or navigable river (A). A corporation may even 
 be liable by prescription, or by having accepted such an 
 obligation in its charter, to repair highways, &c., and may 
 be indictable for not doing it [i). A corporation carrying 
 
 (/) It is unnecessary to enter at case of ]\IacJcn>i v. Commercial Bank 
 
 largo upon the cases on this head, of New Brunswick, L. R. 5 C. P. 
 
 of which there are a great number : 394. Savigny's statement that a 
 
 among the latest are Batjlcij v. Man- corporation cannot commit a ' ' triie 
 
 cltester, tfr., Rij. Co., L. R. 7 C. P. delict" (3. 317) is so qualified as 
 
 41.5, 8 C. P. 148 ; Moore v. Metrop. perhaps not to be inconsistent with 
 
 Rij. Co., L. R. 8 Q. B. 3G ; BoUng- the English doctrine : however such 
 
 broke v. Swindon Local Board, L. R. questions as have arisen in recent 
 
 9 C. P. 575; Edwards v. Midland times on the dealings of commercial 
 
 R;t. Co., 6 Q. B. D. 287, where an corporations were obviously not 
 
 action for malicious prosecution jDresent to his mind, 
 
 was held to lie. (A) Eeg. v. G. N. of Eng. Ry. Co., 
 
 [g) Barivick v. Eng. Joint Stock 9 Q. B. 315; per Our. p. 326. 
 
 Bank, L. R. 2 Ex. 259 ; notwith- (i) See Grant on Corporations, 
 
 standing dicta to the contrary in 277, 283 ; Angell & Ames on Cor- 
 
 Wcstcrn Bank of Scotland \. Addie, porations, §§ 394-7; Wms. Saund. 
 
 L. R. 1 Sc. & b. 145, see the later 1. 614, 2. 473. 
 
 l2
 
 116 
 
 CAPACITY OF PARTIES. 
 
 But cannot 
 be bound 
 by acts of 
 even all its 
 members 
 •when of a 
 non- cor- 
 porate 
 character. 
 
 on business may likewise become liable to penalties im- 
 posed by any statute regulating that business, if it appears 
 from tlie language or subject-matter of the statute that 
 corporations were meant to be included, but not other- 
 wise {k). A steamship company has been held (on the 
 terms of the particular statute, as it seems) to be not 
 indictable under the Foreign Enlistment Act of Geo. 3, 
 and therefore not entitled to refuse discovery which in 
 the case of a natural person would have exposed him to 
 penalties under the Act (/). As to the difficulty of im- 
 puting fraudulent intention to a corporation, which has 
 been thought to be peculiarly great, it may be remarked 
 that no one has ever doubted that a corporation may be 
 relieved against fraud to the same extent as a natural 
 person. There is exactly the same difficulty in supposing 
 a corporation to be deceived as in supposing it to deceive, 
 and it is equally necessary for the purpose of doing justice 
 in both cases to impute to the corporation a certain mental 
 condition — of intention to produce a belief in the one case, 
 of belief produced in the other — which in fact can exist 
 only in the individual mind of the person who is its agent 
 in the transaction [m). Lord Langdale found no difficulty 
 in speaking of two railway companies as " guilty of fraud 
 and collusion," though not in an exact sense (n). How- 
 ever the members of a corporation cannot even by giving 
 an express authority in the name of the corporation make 
 it responsible, or escape from being individually respon- 
 sible themselves, for a wrongful act (as trespass in remov- 
 
 [h) Pharmaceutical Society \. Zon- 
 don and Frovincial Supply Associa- 
 tion, 5 App. Ca. 857 ; see per Lord 
 Blackburn at p. 869. A corporation 
 cannot sue as a common informer 
 ■without special statutory authority : 
 Guardians of St. Leonardos, Shore- 
 ditch V. Franklin, 3 C. P. D. 377. 
 
 (/) Kinq of Two Sicilies v. Willcox, 
 1 Sim. N. S. 335. 
 
 (j«) See per Lord Blaclvburn, 3 
 App. Ca. 12G1. The diiiiculty and 
 
 the solution are both given by Ul- 
 pian, D. 4. 3. de dolo malo. 15 § 1. 
 Sed an in muuicipes de dolo detur 
 actio, dubitatur. Et puto ex sue 
 quideni dolo non posse dari ; quid 
 enini municipes dolofacere possunt? 
 Sed si quid ad eos pervenit ex dolo 
 eorum qui res eonim administrant, 
 puto dandam. A company may 
 "feci atrgrieved," Companies Act, 
 1880, 43 Vict. c. 19, s. 7, sub-s. 5. 
 («) 12 Beav. 382.
 
 rOKPORATIONS. Ill 
 
 ing an obstruction of an alleged highway) which though 
 not a personal WTong is of a class wholly beyond the 
 competence of the corporation, so that if lawful it could 
 not have been a corporate act (o). Likewise it is not 
 competent to the governing body or the majority, or even 
 to the whole of the members for the time being, of a cor- 
 poration constituted by a formal act and having defined 
 purposes, to appropriate any part of the corporate funds to 
 their private use in a manner not distinctly warranted by 
 the constitution ; for it is not to be supposed that all the 
 members of the corporation are equivalent to tJte corpo- 
 ration so that they can do as they please with corporate 
 property. Lord Langdale held on this principle that the 
 original members of a society incorporated by charter, 
 who had bought up the shares of the society by agreement 
 among themselves, were bound to account to the society 
 for the full value of them (7;). The fallacy of the opposite 
 assumption (that a corporation has 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 
 unanimously appropriates the whole corporate property to 
 his own use (</). 
 
 (0) Mill V. Hawlier, L. R. 9 Ex. by the Komanla-w, the authorities 
 
 309 ; no judgment on this j)art of relied on being in truth special 
 
 the case in Ex. Ch. L. E.. 10 Ex. 92. provisions for the government of 
 
 (jo) Socictij of Fr actual Knowledge municipal corporations which were 
 
 V. Abbott, 2 Beav. 659, 567. Cp. never intended to be of unlimited 
 
 Sav. Syst. 3. 283, 335. But it may application : Sav. Syst. 3. 329 sqq. 
 
 be otherwise if the corporation has ^^ 97-99. The illustration in our 
 
 no defiuite constitution and no rules testis given at p. 350, note, with 
 
 prescribing the apphcation of its the remark, " Hier ist gewiss Ein- 
 
 property. Such cases are sometimes stimmigkeit vorhandeu." Savig- 
 
 metwith: i?;'Oicwv.i>«fe, 9Ch.D.78. ny's exposition is interesting for 
 
 («/) Writers on the civil law have the clearnesswith which he enforces 
 laid down the powers of majorities in the fundamental proposition that a 
 corporate affau's with an extraordi- coiporation is not identical with the 
 nary latitude, assigning unlimited sum of its existing members, but 
 authority to the majority of a pro- otherwise it throws little if any 
 perly convened meeting in most light on the problems arising from 
 cases, and to the wholebody of exist- the modern development and mul- 
 ing members in any case. But Sa- tiplication of corporate bodies in 
 viguy has shown this to be not only the English and allied systems of 
 false in principle but unwarranted law.
 
 118 CAPACITY OF PARTIES. 
 
 It is further to be observed that such cases as those last 
 mentioned have but a slight and perhaps a misleading 
 likeness to those where we have to determine the rights of 
 strangers against the corporation arising out of contract or 
 dispositions of property. In Societij of Practical Know- 
 ledge v. Abbott {)') the principle is that, quite apai-t from 
 the nature of its particular objects, a corporation does not 
 exist for the sake of the persons who are the members at 
 any one time, as is also shown by the rule of common law 
 that they have no power of their own mere will to dissolve 
 it. No corporate property can be treated as the property 
 of the members, or divisible among them, unless there 
 appears from the nature and constitution of the corpo- 
 ration an intention that it shall be so treated. In Hill 
 V. Hawker {s), again, the removal of an obstruction to a 
 highway is a thing which by its nature cannot be a cor- 
 porate act at common law. The common law right is 
 founded on the use of the highway by the person removing 
 the obstruction, but a corporation cannot use a highway. 
 No doubt a corporation might have a statutory power or 
 be under a statutory duty to remove obstructions, and the 
 true question in the case was whether any such power or 
 duty had been conferred on highway boards. The majority 
 of the court held that it had not. But if such had been 
 the case, the right so conferred would still have been 
 wholly distinct from the right of a natural person at com- 
 mon law to remove things which obstruct his lawful use 
 of a highway {t). 
 
 As limited We now come to consider the far more difficult and 
 rf ^°Cuu- complicated question of special restrictions. The im- 
 flicting portance of this subject is quite modern ; it arose from the 
 corpomto general establishment of railway companies and others of 
 
 powers. 
 
 (?•) 2 Beav. 559. Molcsworth), and Leviathan, pt. 1. 
 
 (a) L. R. 9 Ex. 309, see at p. 318. c. 16 ; and on its artificial character, 
 
 [t) On the nature of corioorate Maine, Early History of Institu- 
 
 actionin general cp. Hobbes, Behc- tions, 352. 
 
 moth, part 4, ad init. (6. 359, cd.
 
 CORPOKATIONS. 119 
 
 a like nature incorporated by special Acts of Parliament, 
 and has been continued and increased by tbe multiplication 
 of joint stock companies, building societies, and other 
 bodies which are incorporated or made " quasi-corpora- 
 tions" under general Acts. On this there have been many 
 decisions, much discussion, and some real conflict of judi- 
 cial opinions. There are two opposite views by which the 
 consideration of the matter may be governed, and they 
 may be expressed thus : 
 
 1. A corporation is an artificial creature of the law, and 
 has no existence except for the purposes for which it was 
 created. No Act exceeding the limits of those purposes 
 can be the act of the corporation, and no one can be 
 authorized to bind the corporation to such an act. In 
 each particular case, therefore, the question is : Was the 
 corporation empoicered to bind itself to this transaction ? 
 
 2. A corporation once duly constituted has all such 
 powers and capacities of a natural person as in the nature 
 of things can be exercised by an artificial person. Trans- 
 actions entered into with apparent authority in the name 
 of the corporation are presumably valid and binding, and 
 are invalid only if it can be shown that the Legislature has 
 expressly or by necessary implication deprived the corpora- 
 tion of the power it naturally would have had of entering 
 into them. The question is therefore : Was the corpora- 
 tion forhidden to bind itself to this transaction ? 
 
 As Lord Justice Lindley puts it («), the difference is "as 
 to whether the act of incorporation is to be regarded as 
 conferring unlimited powers except where the contrary can 
 be shown ; or whether alleged corporate powers are not 
 rather to be denied unless they can be shown to have been 
 conferred either expressly or by necessary implication." 
 
 As we shall often have to refer to these views, we may 
 call (1) the doctrine of special capacities^ and (2) the doc- 
 trine of general capacitij. 
 
 («) 1. 251.
 
 120 
 
 CAPACITY OF PARTIES. 
 
 " Special 
 capaci- 
 ties." 
 
 There is much to be said on principle for the theory of spe- 
 cial capacities. Most if not all corporations are established 
 for tolerably well-defined pm^poses, which persons dealing 
 with them can ascertain without difficulty. They are cer- 
 tainly not intended to do anything substantially beyond 
 those purposes, and a reasonable and liberal construction 
 of their powers may be trusted to prevent the application 
 of the doctrine from causing any real hardship {x). This 
 theory was the prevalent one in the earlier period of the 
 discussion. For a while the common law courts took it 
 without question from the courts of equity, where for 
 particular reasons to be mentioned afterwards it appeared 
 in a somewhat more positive form and was maintained for 
 a longer time {p). It also seems to have been taken for 
 granted by those who framed the modern statutes defining 
 the powers of incorporated companies (s) ; which, if the 
 opposite view be correct, are redundant in permission and 
 defective in prohibition. 
 
 " General 
 capacity." 
 
 The theory of general capacity, on the other hand, may 
 well be supported on principle as tending to call the 
 attention of the Legislature more distinctly to the limits 
 it may be proposed to assign to corporate powers, and 
 ultimately to promote general convenience by making those 
 limits more certain. It is also favoured by the general 
 analogies of the law. There is a fallacy latent in the phrase 
 of the other theory. When we speak of an artificial person 
 as a creature of the law, we mean its legal existence, not 
 its particular rights and capacities. If legal existence as 
 
 (z) See judgment of Coleridge, J. 
 Mayor of None ich v. Norfolk Jti/. Co. 
 4 E. & B. 397, 24 L. J. Q. B. 105, 
 119. 
 
 (y) Accordingly it was till quite 
 lately ado])ted by the best text- 
 writers. Kent, Comm. 2. 298 — 9, 
 even treated it as au obvious doc- 
 trine : (in the latter editions, bow- 
 
 ever, this is much qualified by the 
 note atp. 278.) The Supreme Court 
 of the U.S. certainly seems to have 
 so lield, at all events as to corpora- 
 tions created by statute : Bank of 
 Aiirjusta V. Earle, 13 Peters, 519, 
 587. 
 
 (;) See L. K. 9 Ex. 266.
 
 CORPORATIONS. 121 
 
 a subject of rights and duties is once admitted by a fiction, 
 why not admit its ordinary incidents so far as they are 
 physically possible ? All rights are in one sense creatures 
 of the law, and it is in a special sense by creation of the 
 law that artificial persons exist at all : but when you have 
 got 3'our artificial person, why call in a second special 
 creation to account for its rights ? 
 
 This last view seems on the whole to have in its favour Towers of 
 a preponderance of modern authority. It is subject how- coniora-^ 
 ever to an important qualification, finally established by the tions 
 leading case, to be more particularly spoken of afterwards, purposes 
 of Ashhury Railimu Carriage Co. v. Riche (a) : namely, '^^ mcor- 
 
 11 • A P -n> \/' J ' poration. 
 
 " that 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 betaken as prohibited " (a). This 
 makes the conflict between the two theories much less 
 sensible in practice than might at first sight be expected. 
 The considerations on which the qualification rests are in 
 themselves foreign to the law of corporations as such, but 
 they are constantly present in the modern cases and are 
 often decisive. 
 
 These considerations are derived (1) from the law of Reasons 
 partnership : (2) from principles of public policy. ihnitation 
 
 derived — 
 
 1. In trading corporations the relation of the members i. From 
 or shareholders to one another is in fact a modified {b) P^.^^^^' 
 contract of partnership, which in the view of courts of 
 equity is governed by the ordinary rules of j)artnership law 
 so far as they are not excluded by the constitution of the 
 company. 
 
 Now it is a well-settled principle of partnership law that Riglats of 
 no majority of the partners can bind a dissenting minority, partners'." 
 
 (rt) L. R. 7 H. L. G53 ; Lord of shareholders, and other things 
 Blackbiu-n in ^. G. v. G. E. Eij. which cannot (at least with con- 
 Co. 5 App. Ca., at p. 481 ; cp. R'^g. venience or completeness) be made 
 V. Eced, 5 Q. B. D., at p. 488. incident to a partnership at common 
 
 {b) Namely by provisions for law. 
 transfer of shares, limited liability
 
 122 
 
 CAPACITY OF PARTIES. 
 
 Doctrine 
 as to 
 limited 
 agency. 
 
 In pviblic 
 companies 
 limits of 
 directors' 
 authority 
 presumed 
 to be 
 known. 
 
 or even one dissenting partner, to engage the firm in trans- 
 actions beyond its original scope (c). In the case, there- 
 fore, of a corporation whose members are as between them- 
 selves partners in the business carried on by the corporation, 
 any dissenting member is entitled to restrain the governing 
 body or the majority of the company from attempting to 
 involve the company in an undertaking which does not 
 come within its purposes as defined by its original con- 
 stitution. 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 require 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 cor- 
 porate body, or a contract so made be enforceable by the 
 other party who had contracted in good faith. This" dis- 
 tinction, clear and important as it is, has not always been 
 kept in sight. But fmiher, according to the law of part- 
 nership a partner can bind the firm only as its agent : his 
 authority is prima facie an extensive one (f/), but if it is 
 specially restricted by agreement between the partners, and 
 the restriction is known to the person dealing with him, 
 he cannot bind the firm to anything beyond those special 
 limits {e). Limits of this kind may be imposed on the 
 directors or other ofiicers of a company by its constitution; 
 and if that constitution is embodied in a special Act of 
 Parliament, or in a deed of settlement or articles of associa- 
 tion registered in a public oflice under the provisions 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 
 
 (c) Lindley, 1. GOO sqq. 
 
 {d) Lindley, 1. 236; per James, 
 L. J. JiainVs ca. 5 Ch. 733 ; Story 
 on Agency, §§ 124, 125, adopted by 
 
 the Judicial Committee iu Bank of 
 Australasia V. Breillat, 6 Moo. P.O. 
 152, 195. 
 
 {c) Lindley, 1. 327 sqq.
 
 CORPORATIONS. 123 
 
 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 im- 
 portant to remember that in this view the resolutions of 
 meetings however numerous, and passed by however great 
 a majority, have of themselves no more power than the 
 proceedings of individual agents to bind the partnership 
 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 
 it may be difficult or impossible for them to verify) have in 
 fact been complied with {g) . 
 
 These applications of partnership law materially cut 
 down the results of the common law theory of general 
 capacity so far as regards its application to almost all 
 incorporated companies of modern origin. 
 
 But it is to be observed that in the ordinary law of Assent of 
 
 all the 
 
 partnership there is nothing to prevent the members of a members 
 firm, if they are all so minded, from extendino- or chanaino: ""'i^^^e- 
 
 ' "^ ... o o m.ove 
 
 its business without limit by their unanimous agreement, objections 
 As a matter of pure corporation law, the unanimity of the ^ead.^ 
 members is of little importance : it may supply the want 
 of a formal act of the governing body in some cases (//), 
 but it can in no case do more. As a matter of mixed 
 corporation and partnership law this unanimity may be all- 
 
 (/) Lindley, 1. 252. &c., are incorporated to them and 
 
 {g) Lindley, 1. 253 sqq. theii* .successors bj' the name of X, 
 
 (A) Even this is in strictness then A 4- B -|- C -|- ■ • ■ &«• 
 
 hardly consistent "u-ith the leading are not = X. 
 
 principle that if A, B, C. . . .
 
 124 
 
 CAPACITY OF PARTIES. 
 
 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 partner- 
 ship for this purpose. It appears, then, that the unanimous 
 assent of the members will remove all objections founded 
 on the principles of partnership, and will so far leave the 
 corporation in full possession of its common law powers. 
 There are nevertheless many transactions which even the 
 unanimous will of all the members cannot make binding 
 as corporate acts. For the reasons which determine this 
 we must seek farther. 
 
 2. PubHc 
 policy : 
 corpora- 
 tions 
 
 formed for 
 special 
 purposes. 
 Powers 
 must not 
 be used to 
 defeat 
 purposes 
 of incor- 
 poration. 
 
 2. 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 pro- 
 prietors of the undertaking, and for this reason they are 
 armed with extraordinary powers and privileges. What- 
 ever 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 empowers either natui'al 
 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 
 
 (i) See Galloway v. Mayor of 
 London, L. R. 1 H. L. at p. 43, 
 
 Lord Carbujton v. Wycombe Ry. Co. 
 3 Ch. 377, 381. Nor may a com- 
 pany hold regattas or let_ out 
 pleasure-boats to the inconvenience 
 of the former owner on a piece of 
 water acipiired by them under their 
 Act for a reservoir : liostoclc v. N. 
 tStdll'ordnhire lly. Co. 3 Sm. & G. 
 283, 292 ; nor alienate land similarly 
 ac(iuired except for purposes au- 
 thorized by the Act: Mnllincr v. 
 
 Midland Ry. Co. 11 Ch. D. 611, 
 622. But a statutory corporation 
 acquu'ing property takes it with 
 all its rights and incidents as 
 against strangers, subject only to 
 the duty of exercising those rights 
 in good faith with a view to the 
 objects of incorporation : Swindon 
 fVutcricorks Co. v. ll'Ms and Berks 
 Canal Kavigalion Co. L. R. 7 H L. 
 697, 704, 710 ; Bonner v. G. W. R. 
 Co., C. A., 24 Ch. D. 1 ; and a 
 corporatiou cannot bind itself not
 
 CORPORATIONS. 125 
 
 the obstruction of a navigable river by 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 incorporation 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 extraordinary powers puts the corporation for almost all 
 purposes and in almost all transactions in a wholly different 
 position from that which it would have held without them ; 
 and apart from the actual exercise of them it may do many 
 things which it was otherwise legally comjDctent to do, but 
 which without their existence it could practically never 
 have done. Any substantial departure from the purposes 
 contemplated 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 contracts of 
 railway companies and corporations of a like public nature 
 which can be seen to import a substantial coDtravention of 
 the policy of the incorporating Acts are held by the courts 
 to be void, and are often spoken of as mala lirohihita, and 
 illegal in the same sense that a contract of a natural 
 person to do anything contrary to the provisions of an Act 
 of Parliament is illegal {]<) . Others prefer to say that the 
 
 to use in the future special powers 2 Ex. 379 ; and (Brett and Grove, 
 
 which have presumably been con- JJ. concurring) in Rlchc v. Ashlmry 
 
 ferred to be used for the public Rij. Carriage Co. L. K. 9 Ex. 262 
 
 good: Ayr Harbour Trustees v. 266; Lord Hatherley, s. c. nom. 
 
 Oswald, 8 App. Ca. 623. Ashbury liy. Carriage Go. v. liic/ie, 
 
 {k) Blackburn, J. in TaT/lor v. L. E. 7 H. L. at p. 689. 
 Chichester ^- Midhurst Ry. Co. L. R.
 
 126 CAPACITY OF PARTIES. 
 
 Legislature, acting indeed on motives of public policy, lias 
 simply disabled the corporation from doing acts of this 
 class ; "to regard the case as one of incapacity to contract 
 rather than of illegality, and the corporation as if it were 
 non-existent for the purpose of such contracts " (/). 
 
 The difference, however, is but a verbal one, and both 
 modes of expression have their convenience. The former 
 seems appropriate in such a case as that where it was 
 decided that the agreement of a third person to procure a 
 company to do something foreign to its proper purposes is 
 illegal and void {m) . 
 
 Interest of There is another consideration of a somewhat similar 
 e pxi ic ^^^^ wliich applies equally to what may be called public 
 
 as in- 
 
 vestors, 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 provisions for limited liability, 
 and for the easy transfer of shares in both sorts of com- 
 panies must be considered, in their modern form and 
 extent at least, as a statutory privilege. These provisions 
 also invest the companies with a certain pubhc character 
 and interest quite apart from the nature of their particular 
 objects in each case, but derived from the fact that they do 
 Buyers of profcssedly exist for particular objects. By far the greater 
 **^^'k^t^^ part of their capital represents the money of shareholders 
 and per- who have bought shares in the market without any inten- 
 gdvino- 'tion of taking an active part in the management of the 
 credit to concern, but on the faith that they know in what sort of 
 panyXivo adventure they are investing their money, and that the 
 
 (/) Archibald, J. (Keating and restraining them in a court of 
 
 Quain, .JJ. concuiTing), L. R. !) common law at the instance of the 
 
 Ex. 293; Lord Cairns, L. R. 7 Crown: A. G. v. G. E. Ily. Co. 11 
 
 IT. L. at p. 672 ; Lord Selbornc, ib. Ch. D. at pp. 501—3. 
 G94 And Bramwcll, L. J., rather («?) McGregors. Dover S^ Deal Ry. 
 
 strongly disapproves of calling Co. 18 Q. B. (318, 22 L. J. Q. B. 69. 
 
 Buch acts illegal, pointing out that See per Erie, J., in Mayor of Nor- 
 
 if they were proiDcrly so called there u-icli v. Norfolk My. Co. 4 E. & B. 
 
 would have been some means of 397, 24 L. J. Q. B. 105.
 
 CORPORATIONS. 127 
 
 comi:)any's funds are not being and will not be applied to a right to 
 other objects than those set forth in its constitution as de- that'the 
 clared by the Act of incorporation, memorandum of associa- compimy's 
 tion, or the like. This is not a mere repetition of tlio ob- Ji/jVcts are 
 jections grounded on partnership law ; the incoming share- j^^h'^''"'-''! 
 holder may protect himself for the future, but the mischief 
 may be done or doing at the time of the purchase : and 
 besides it may fairly be said that persons other than share- 
 holders deal with the company on the faith of its adliering 
 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 " {n). The 
 assent of all those who are shareholders at a given time will 
 of course bind them individually, but leaves this difficulty 
 untouched (o) . If I buy shares in a company which pro- 
 fesses to make railway plant in England I have a right to 
 assume that its funds are not pledged to pay for making a 
 railway 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 Companies Act, 
 1862, 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 share- 
 holders for the time being ; and secondly, the outside 
 public, and more particularly those who might be creditors 
 of companies of this kind" {])). The House of Lords has 
 unanimously decided (after an equal division of opinion in 
 the Court of Exchequer Chamber) that by the general 
 scheme and on the true construction of the Act a company 
 registered under it is forbidden to enter, even with the 
 unanimous assent of the shareholders for the time beino-, 
 into a contract foreign to its objects as defined in the 
 memorandum of association (</). 
 
 (») Lord Hatherley, L. R. 7 H. (p) Lord Cairns, L. E. 7 H. L. 
 
 L. at p. 684. at p. 667. 
 
 (o) See L. R. 9 Ex. 270, 291. {//) Ashhury Rij. Carriage ^- Iron
 
 128 
 
 CAPACllY OF PARTIES. 
 
 The reader is referred to the Appendix (r) for a selection 
 of authorities showing how the doctrine of corporate powers 
 here given in outline has gradually been worked out. 
 
 Inability 
 of corpo- 
 rations 
 to make 
 negotiable 
 instru- 
 ments. 
 
 The diffi- 
 culty is 
 partly 
 formal. 
 
 It is not proposed to enter on any further discussion of 
 the particular contracts which particular corporate bodies 
 have been held incapable of making. One class of con- 
 tracts, however, is in a somewhat peculiar position in this 
 respect, and requires a little separate consideration. "We 
 mean the contracts expressed in negotiable instruments 
 and governed by the law merchant. It is said and truly 
 said that as a general rule a corporation cannot bind itself 
 by a negotiable instrument (.s) . The origin and meaning of 
 the rule are easily misapprehended. At first sight it looks 
 like an obvious deduction from the doctrine of limited 
 special capacities. If a corporation can only make such 
 contracts as it is empowered to make, then it follows of 
 course that among other things it cannot issue bills or 
 notes without express or implied authority to do so ; but 
 we have seen that this ground is now hardly tenable. In 
 order to state what we believe to be the true view we must 
 to some extent anticipate the subject of the following 
 chapter, so far as it relates to the form of corporate con- 
 tracts. The general rule is that the contracts of a cor- 
 poration must be made under its common seal, and it 
 follows that a corporation cannot 7;r/>;?f7/6rf/^ be bound by 
 negotiable instruments in the ordinary form. The only 
 early authority which is really much to the point was 
 argued and partly decided on this footing (/). Of late 
 
 Co. V. niche, L. E. 7 H. L. 653 ; in 
 Ex. and Ex. Ch. L. E,. 9 Ex. 224, 
 249. 
 
 (r) Note D. 
 
 (.s) A different rule prevails in 
 the United States, where it is held 
 that a corporation not expressly 
 prohibited from so doing may give 
 negotiable promissory notes for 
 any of the legitimate purposes of 
 its incorporation : Mo&s v. Avcrill, 
 
 10 N. Y. 449, and other autho- 
 rities cited by Mr. Wald in his 
 note here in American edition. 
 
 {() Brouqhton Y.Manchester Water- 
 works Co. 3 B. & Aid. 1 . The cliief 
 point was on the statutes giving 
 the Bank of England exclusive 
 rights of issuing notes, kc, within 
 certain limits, as to which see 
 Lindley, 1. 185, note. In Murray 
 V. E. India Co. 5 B. & Aid. 204, the
 
 CORPORATIONS. 129 
 
 years incorporated companies have issued documents under 
 seal purporting to be negotiable ; but by the law merchant 
 an instrument under seal cannot be negotiable, and it is 
 the better opinion that the fact of the seal being a cor- 
 porate one makes no difference ; it cannot be taken as 
 merely equivalent to signature because the party sealing 
 is an artificial person and unable to sign {k). Putting this Partly in 
 last question aside, however, there are very many matters appHca-" 
 about which a corporation can contract without seal, and ^i^ity ^^ 
 in particular in the case of a trading corporation all things ordinary 
 
 naturally incident to the business it carries on. Why ''^^'^^o* 
 ••' ^ "^ partner- 
 
 should not the agents who are authorized to contract on ship 
 
 behalf of the company in the ordinary course of its business ^^®^°^* 
 be competent to bind the company by then* acceptance or 
 indorsement on its behalf, just as a member of an ordinary 
 trading partnership can bind the firm ? There is a two- 
 fold answer to this question. Fii-st, the extensive implied 
 authority of an ordinary partner to bind his fellows cannot 
 be applied to the case of a numerous association, whether 
 incorporated or not, whose members are personally un- 
 known to each other, and it has been often decided that 
 the managers of such associations cannot bind the indi- 
 vidual members or the corporate body, as the case may be, 
 by giving negotiable instruments in the name of the con- 
 cern, unless the terms of their particular authority enable 
 them to do so by express words or necessary implication (x) . 
 In the case of a corporation this authority must be sought 
 
 statutory authority to issue bills 4 Bing. 149, Dickinson v. Valpi/, 10 
 was not disputed ; a difficulty was B. & C. 128, Bramah v. Roberts, 3 
 raised as to the proper remedy, but Bing. N. C. 963, Bult\. Morrel, 12 
 disposed of in the course of argu- A. k E. 745, JBrotcnv. Byers, 16M. 
 ment (p. 210). Other cases at first & W. 252. As to incorporated corn- 
 sight like these relate to the panies: Steele v. Ilarmer, 14 M. & 
 authority of particular agents to W. 831 (in Ex. Ch. 4 Ex. 1, not on 
 bind a corporate— or unincorpo- this point), Thompson v. Universal 
 rated — association irrespective of Salvage Co. 1 Ex. 694, Re Peruvian 
 the theory of corporate liabilities. Rijs. Co. 2 Ch. 617; c^. Ex parte 
 See the next note but one. Cit;/ Bank, 3 Ch. 758, per Selwyn, 
 
 {n) Crouch v. Credit Foncier, L. R. L.J. The two last cases g'o rather 
 
 8 Q. B. 374. far in the direction of implying 
 
 (x) As to unincorporated joint svich a power from general words, 
 stock companies : Neale v. Turton, 
 
 P. K
 
 130 CAPACITY OF PARTIES. 
 
 in its constitution as set forth in its special Act, articles of 
 And association, or the like. Secondly, the power of even a 
 
 thl ^ ™ trading corporation to contract without seal is limited to 
 peculiar thiuffs incidental to the usual conduct of its business. But 
 
 cli3,r3.ctrGr 
 
 of the as was pointed out hy a judge who was certainly not dis- 
 exchan^e* posed to take a narrow view of corporate powers, a nego- 
 tiable instrument is not merely evidence of a contract, but 
 creates a new contract and a distinct cause 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" (//). 
 
 The result seems to be that a corporation cannot be 
 bound by negotiable instruments except in one of 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 " (z) — as 
 with the Bank of England and the East India Company, 
 and (it is presumed) financial companies 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 the 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, &c., 
 
 (y) Per Eric, O.J., Bateman v. pain of forfeiting the nomiual 
 
 3Iid Wales liij. Co., L. R. 1 0. P. amount of the security : 7 & 8 
 
 499, 509. Railway companies are Vict. c. 85, s. 19. 
 expressly forbidden to issue nego- (r) Per Montague Smith, J., L. 
 
 tiable or assignable instruments E.. 1 C. P. 512; Ex parte Citij 
 
 without statutory authority, on Ba)i]c, 3 Ch. 758.
 
 CORPORATIONS. 131 
 
 it is therefore desirable to insert express and clear provisions 
 on this head. 
 
 In the United States the Supreme Court h as decided American 
 that local authorities having the usual powers of adminis- 
 tration and local taxation liave not any implied power to 
 issue negotiable securities wliich will be indisputable in 
 the hands of a bond fide holder for value {a), and has been 
 equally divided on the question whether municipal cori^o- 
 rations have such power (/;), It seems however that in 
 American Courts a power to borrow money is held to carry 
 with it as an incident the power of issuing negotiable 
 securities [c). 
 
 The common law doctrine of estoppel {d), and the kindred Estoppel 
 equitable doctrine of part performance (f), apply to corpora- perfonn- 
 tions as well as to natural persons. Even when the cor- a°°s apply 
 porate seal has been improperly affixed to a document by rations. 
 a person who has the custody of the seal for other pur- 
 poses, 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 (/) . 
 The principles applied in such cases are in truth indepen- 
 dent of contract, and therefore no difficulty arises from the 
 want of a contract under the corporate seal, or non-com- 
 pliance 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. 
 
 {a) Pulice Jury v. Britton, 15 Corporation v. Brougham, 4 App. 
 
 Wallace, 56C, 572. Ca. at p. 169. This must be con- 
 
 {b) The Mayor V. Ray, 19 Wallace, fined however to cases where the 
 
 466. corporation is " capable of being 
 
 (c) Tol'ice Jury v. Britton, 15 bound by the written contract of 
 
 Wallace, 566, and Mr. Wald's note its directors as an individual is 
 
 here in American ed. capable of being bound by his own 
 
 {d) Webb V. Heme Bay Commis- contract in writing:" per Cotton, 
 
 sioners, L. R. 5 Q. B. 642; L.J., ITunt v. JFimbledon Local 
 
 {e) Wilson v. West Hartlepool By. Board, 4 C. P. D. at p. 62. 
 
 Co. 2D. J. S. 475, 493, per Turner, (/) Banh of Ireland v. Elans' 
 
 L.J. ; Crook v. Corjmration of Sea- Charities, 5 H. L. C. 389. 
 ford, 6 Ch. 551 ; Melbourne Banking
 
 ( 132 ) 
 
 CHAPTER III. 
 
 Form of Contract. 
 
 Contrast 
 of ancient 
 and 
 modern 
 concep- 
 tions of 
 contracts 
 as giving 
 rights of 
 action. 
 
 Ancient 
 
 According to the modern conception of contract, all 
 agreements whicli satisfy certain conditions of a general 
 kind are valid contracts and may be sued upon, in the 
 absence of any special legislation forbidding particular 
 contracts to be made or denying validity to them unless 
 made with particular forms (a). So thoroughly has this 
 conception established itself in recent times that, having 
 made the presence of a consideration one of the general 
 conditions of a valid contract, we are now accustomed to 
 bring contracts under seal within the terms of the con- 
 dition by saying that where a contract is under seal the 
 consideration is presumed. Historically speaking, this is 
 a transparent fiction. The doctrine of Consideration in 
 its present general form is of comparatively modern origin 
 even if we look to the history of English law alone. The 
 ancient reason why a deed could be sued upon lay not in 
 a consideration in our present sense of the word being 
 presumed from the solemnity of the transaction, but in the 
 solemnity itself. The forms of sealing and delivery come 
 down to us from a time when the general theory of the 
 law started from a different or even opposite point to our 
 own. The fundamental assumption of ancient law (when 
 
 («) Cp. s. 10 of the Indian Con- 
 tract Act : / ' All agreements are 
 contracts [i. e. enforceable by law, 
 8. 2, 8ub-s. A.] if they are made by 
 the free consent of parties compe- 
 tent to contract, for a lawful con- 
 
 sideration and with a lawful object, 
 and are not hereby expressly de- 
 clared to be void." (Then follows 
 <a clause saving all formalities re- 
 quired iu particular cases by the 
 law of British India.)
 
 FOKMALITY OF ARCHATC LAW. 133 
 
 it lias got so far as to recognize contract at all) is that the law re- 
 validity of a contract depends, not upon the substance of fy^i!„iai°" ^ 
 the transaction, but upon its fulfilling certain conditions of coutracts. 
 form, and being established by one or other of certain 
 strictly specified modes of proof. When we come to that 
 subject in a later part of this chapter, the reader will find 
 that the law relating to the form of corporate contracts is 
 still going through a process of struggling development 
 not altogether unlike that which took place in earlier times 
 with regard to the contracts of natural persons. Both in Informal 
 the Eoman law as presented to us in the Digest and actionable 
 Institutes, and in the English law of the thirteenth, and only as 
 even down to the latter part of the fifteenth century, this in Roman 
 primitive doctrine that formal contracts alone give rise to ?;^*^{'- j 
 actions is at the base of the whole learning of contracts, law. 
 Considerable classes of informal contracts are excepted on 
 various grounds which are practically reducible to " con- 
 venience amounting almost to necessity " (a phi'ase which 
 we here introduce by anticipation from the modern learn- 
 ing as to the informal contracts of corporations). But the 
 exceptions are not as yet connected by any recognized 
 general principle. In the English system, so far as one 
 can now judge, they are decidedly narrower in statement 
 and less important in practice than in the Roman. 
 
 In England we find this theory expressed by Bracton in 
 almost purely Roman language {b), which is substantially 
 repeated in Eleta. How far the theory was directly bor- 
 rowed, or how far it already existed as a genuine parallel 
 development of English legal ideas with which the au- 
 thorities of the civil law were found in great measure to 
 coincide, may perhaps be doubtful (c). At any rate the 
 correspondence is so close that some statement of the 
 
 (J) In Britton the substantial but disappears. (Cap. DeDette, 1. 
 
 correspondence remains, but tlie 15G, ed. Nicholls. ) 
 details are much more modified to (c) See Giiterbock, Henr. de 
 
 suit the real facts of Eugiish prac- Bracton, § 18, pp. 107-8, where 
 
 tice, e. g. the verbal Stipidation all the parallel is accurately stated.
 
 134 FORM OF CONTRACT. 
 
 Eoman doctrine in its general effect ((/) is almost necessary 
 to make its Englisli counterpart intelligible. 
 
 Koman 
 doctrine. 
 
 The Formal contracts (legitimae conventiones) gave a right 
 
 of action irrespective of their subject-matter. In Justinian's 
 time the only kind of formal contract in use was the Sti- 
 pulation {c), or verbal contract by question and answer, the 
 question being put by the creditor and answered by the 
 debtor (as Dari spondes ? spondeo : Promittis ? promitto : 
 Facics? faciam). The origin and early history of the 
 Stipulation are uncertain. In oui* authorities it appears 
 as a formal contract capable of being applied to any kind 
 of subject-matter at the pleasui'e of the parties. Its 
 application was in course of time extended by the follow- 
 ing steps. 1. The question and answer were not required 
 to be in Latin (/). 2. An exact verbal correspondence 
 between them was not necessary (g). 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 {h) . 
 Kudum Informal agreements (pacta) did not give any right of 
 
 ^^ntcausa. action without the presence of something more than the 
 
 {d) Savigny, Obi. 2. 196 sqq. Law, pp. 364—368). It seems 
 Cumpare Sir H. Maine's account in quite possible that the earliest type 
 his chapter on the Early History of of contract is to be sought in cove- 
 Contract, which is in close agree- nants made between independent 
 ment with Sa^-igny's. tribes or families. Cf. Gai. 3. Oi 
 
 ((■) The litterarum obligaiio (Gai. on the use of the word spondeo in 
 
 3. 128) was obsolete. What appears treaties. If this were so, one 
 
 under that title in the Institutes would expect the covenant to be 
 
 (3. 21) is a general rule of e\i- confirmed by an oath, of which 
 
 dence unconnected with the ancient Prof. Muirhead (on Gai. 3. 92) 
 
 usage. The derivation of the finds a trace on other grounds iu 
 
 Stipulation from the ncxum is th.e iovvo. promittis ? promitto. 
 
 tempting, but has been shown, I (/) Gai. 3. 93, I. 3. 15, de v. o. 
 
 think, tu be uuteuable. It is aban- §1. 
 
 dooed by Ilieriug (Geist des riim. {(j) C. 8. 38. de cont. et comm. 
 
 K. 1. 263, 2. 584), Kuntze (Ex- stipul. 10. 
 
 curse iiber riim. E,., pp. 470, 474, (/() C. 8. 38. de cont, et comm. 
 
 476), Girtanner (Die Stipulation, stipul. 14, I. 3. 19. de inut. stipul. 
 
 &c. Kiel, 1859), and (independently, § 12. 
 it seems) by Mr. Hunter (Roman
 
 FORMAL AND INFORMAL CONTRACTS IN ROMAN LAW. 135 
 
 mere fact of the agreement. This something more was 
 called causa. Practically the term covers a somewhat 
 wider ground than our " consideration executed : " hut it 
 has no general notion corresponding to it, at least none co- 
 extensive with the notion of contract ; it is simply the 
 mark, whatever that may he in the particular case, which 
 distinguishes any particular class of agreements from the 
 common herd of jyada and makes them actionahle. In- 
 formal agreements not coming within any of the privileged 
 classes were called nuda pacta and could not he sued on (?"). 
 
 The fm-ther application of this metaphor by speaking of 
 the caitsa when it exists as the clothing or vesture of the 
 agreement is without classical authority hut very common : 
 it is adopted to the full extent hy our own early writers (/«•) . 
 The metaphor is in itself natural enough, and not confined 
 to legal usage ; in Sir H. Holland's posthumous essays we 
 read of " a naked inference now clothed with a positive 
 cause " by the discoveries of spectrum analysis. 
 
 The term nudum pacfuDi is sometimes used, however, 
 with a special and rather different meaning, to express the 
 rule of the civil law that a contract without delivery will 
 not pass property (/) . 
 
 The privileged informal contracts were the following : What 
 1. lical contracts, where the causa consisted in the delivery i^^foi-mal 
 
 ' "^ contracts 
 
 of money or goods : namely, mutui datio, commodatum, enforce- 
 deposituH), p)i(jnus, corresponding to our bailments. This 
 class was expanded within historical times to cover the 
 
 able. 
 
 (j) They gave rise ho"wever to times met with that if a contract 
 imperfect or "natural" obligations by verbal question and answer was 
 
 which had other legal effects. good, a contract in wiiting must 
 
 (/i-) " Obligatio quatuor species be good a fortiori, is of coui'se a 
 
 habet quibus contrahitur et plura mere modern invention.) 
 vestimenta," Bracton, 99a. " Obli- [l) Austin, 2. 1002. Traditionibus 
 
 gacioun deit estre vestue de v. et iisucapionibus dominia rerum, 
 
 maneres de garnisementz, " Britton non nudis pactis, transferuntur. 
 
 1. 156. Austin (2. lOlC, 3rd ed.) Cod. 2. 3. de pactis, 20. But the 
 
 speaks per inmriam of the right of context is not preserved, and the 
 
 action itself, instead of that which particular ^«c<!«» in question may 
 
 gives the right, as being the have been nitdmn in the general 
 
 "clothing." (The notion some- sense too.
 
 136 FORM OF CONTRACT. 
 
 so-called innominate contracts denoted by the formula 
 Do lit dcs, &o. {m), so that there was an enforceable obliga- 
 tion re contract a wherever, as we should say, there was a 
 consideration executed : yet the procedure in the different 
 classes of cases was by no means uniform {n). 
 
 2. Consensual contracts, being contracts of constant 
 occurrence in daily life in which no causa 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 we know anything, 
 namely. Sale, Hire, Partnership, and Mandate. (Emptio 
 Yenditio, Locatio Conductio, Societas, Mandatum) (o) . To 
 this class great additions were made in later times. Sub- 
 sidiary contracts (pacta adiecta) entered into at the same 
 time and in connexion with contracts of an abeady enforce- 
 able class became likewise enforceable : and divers kinds 
 of informal contracts were specially made actionable by the 
 Edict and by imperial constitutions, the most material of 
 these being the constitutum, covering the English heads of 
 account stated and guaranty. Justinian added the pactum 
 donatio)iis, it seems with a special view to gifts to pious 
 uses (p). Even after all these extensions, however, matters 
 stood thus : " The Stipulation, as the only formal agree- 
 ment 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 (nuda j^acta) gave none. This last proposition, 
 that nuda pacta gave no right of action, may be regarded 
 as the most characteristic principle of the Roman law of 
 
 (;») Aut cnim do tibi ut des, aut («) Dig-. 1. c. §§ 1-4. 
 
 do ut facias, aut facio ut des, aut (o) I have altered the statement 
 
 f ucio ut facias ; in quibus quacritur here in deference to Prof. Muir- 
 
 quae obligatio nascatur. D. 19. 5. head's oinniou (on Gai. 3. 216) that 
 
 dc i)raescr. verbis, 5 pr. and see the actio maiulati was comparatively 
 
 Vangerow, Pand. § 599 (3. 234, 7th modern. 
 
 ed.). Blackstone (Comm. 2. 444) {p). C. 8. 54, de donat. 35, § 5. 
 
 took this formula for a classification The establishment of emphyteusis 
 
 of oil valuable considerations, and as a distinct species of contract is 
 
 his blunder has been copied without of minor importance for our present 
 
 reflection by later writers. purpose.
 
 MODERN CIVIL LAW. 137 
 
 Contract " {q). We may now see the importance of bearing 
 in mind, that in Roman, and therefore also in early English 
 law, nudum pactuni docs not mean an agreement made 
 without consideration. 
 
 So far the Eoman theory. When it came to he adopted Modem 
 
 •^ , -^ , civil law. 
 
 or revived in Western Christendom, what happened m 
 
 Germany was, according to Savigny, that the form of the 
 Stipulation being foreign and unsupported by any real 
 national custom like that which kept it alive among the 
 Romans, never found its way into practice : and as there 
 was nothing to put in its place, the distinction between 
 formal and informal agreements disappeared (r). The 
 conclusion is that in the modern Eoman law of Germany 
 the requii'ement of causa does not exist. But this con- 
 clusion is by no means undisputed ; in fact there is a 
 decided conflict of opinion among modern writers, though 
 the greater weight of authorities appear to be for tho 
 proposition here stated. It has even been maintained that 
 a causa was required for the full validity of a Stipulation 
 in the Eoman law itself (s) . Something of the same kind 
 seems to have happened in Scotland, where no considera- 
 tion is needed to make a contract binding: this is qualified 
 however by the rule that a gratuitous promise cannot be 
 proved by oral evidence, but only by writing {t). In 
 French ju.risprudence on the other hand the Eoman causa 
 has persisted (though in a pretty liberal interpretation) as 
 a needful ingredient of every binding contract. Instead of 
 2Kicta becoming legiUmae convoitioncs, the legitimae coiircn- 
 tiones have simply vanished. 
 
 But our English authors did find something to put in Con-e- 
 the place of the Stipulation : namely the solemnities of a English 
 
 (q) Sav. Obi. 2. 231. Prof . Muir- (r) Sav. Obi. 2. 239. 
 
 head, on Gai. 3. 134, says that (s) See Vangerow, Pand. § 600 
 
 *' amongst peregrins a nudum pac- (3. 244). 
 
 turn was creative of action : "which (i!) Erskine, Pr. of Law of Sc. Bk. 
 
 I do not understand. 3, Tit. 2, § 1 ; Bk. 4, Tit. 2, ^ U.
 
 138 TORM OF CONTRACT. 
 
 doctriuoin doecl. Maii}^ things tend to sliow tliat in old English 
 &c. ' and Anglo-Norman times a writing was regarded only as 
 one of the possible modes of proof kno^vn to the law. 
 The notion of the value of a deed being in its formality 
 came in later, but it was well established before the thir- 
 teenth century. As early as Glanvill we find that a man's 
 seal is conclusive against him {ii). Bracton after setting 
 forth almost in the very words of the Institutes how 
 " Verbis contrahitur obligatio per stipulationom " (y), &c. 
 adds : " Et quod per srn'j)fi(ra»i fieri possit stipulatio 
 et obligatio videtur, quia si scriptum fuerit in instru- 
 mento aliquem promisisse, perinde habetur ac si interro- 
 gatione praecedente rcsponsum 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 {//). The equivalent 
 for the Roman Stipulation being thus fixed, the classes of 
 Real and Consensual contracts are recognized, in the terms 
 of Roman law so far as the recognition goes : but the 
 Consensual contracts are so meagrely handled that it looks 
 as if they were introduced only for form's sake (z). Wo 
 hear of nothing corresponding to the later Roman exten- 
 sions of the validity of informal agreements. Such agree- 
 
 (tf) L. 10, c. 12. (.0 99 i. 100 a. 
 
 {v) One may doubt whether an (//) Lib. 2, c. GO, § 25. Non 
 
 English court ever in fact enforced solum sufficiet scriptura nisi sigilli 
 
 or -n-oiild have enforced a Stipula- munimine stipulantis roboretur 
 
 tion proper, as well as whether it cum testimonio fide dignorum 
 
 ever entertained an "actio legis pracsontium. The wrong use of 
 
 Aquiliac de hominibus per f eloniam stipitla>is for the covenantor deserves 
 
 Decisis," fo. 103 i. As to Brae- remark. Cp. Kemble, Cod. Dipl. 
 
 ton's use of Koman names for no. 623 (a.d. 979), ' his testibus 
 
 forms of action compare Bigelow, astipulantibus,^ where the word has 
 
 Leading Cases on the Law of no distinct meaning at all. 
 Torts, \i. 585. The following ■« ild {z) Giiterbock (p. 113) justly rc- 
 
 marginal note occurs in an early marks that what Bracton says of 
 
 14th century MS. of Bracton in theContract of Saleinanother place 
 
 the Cambridge University Library (I'o. C>\ IJ) shows that it was not a 
 
 (Dd. 7. G) : Differt i^actum aeon- true consensual contract inhis view. 
 
 Tentiono quia pactum solum con- The passage is curious, inasmuch 
 
 eistit in sermonibus, ut in stipula- as it contradicts the modern law of 
 
 tionibus, couvcntio tani in serniono Eugland in nearly all points, and 
 
 quam in opero, ut cum in scriptis the civil law in most, 
 rcdigitur.
 
 EARLY ENGLISH LAW. 139 
 
 ments in general give no right of action : in Glanvill it 
 is expressly said : " Privatas conventiones non solet curia 
 domini regis tueri " {a), in a context suggesting that in his 
 time even the regular consensual contracts of the civil law 
 fell within the proposition. In Bracton too, notwithstand- 
 ing his elaborate copying of Roman sources, we read : 
 " ludicialis autem esse poterit stipulatio, vel conventionalis : 
 iudicialis, quae iussu iudicis fit vel praetoris. Conventio- 
 nalis, quae ex conventione utriusque partis concipitur, nee 
 iussu iudicis vel praetoris, et quarum totidem sunt genera 
 quot paene {b) rerum contrahendarum, de qulhuH omnihuH 
 onmiiio curia regis sc non intromittit nisi aliquando de gratia" 
 (fo. imt). 
 
 The sum of the matter seems to have been thus. As to rtemedies 
 formal contracts : A contract under seal could be enforced ?^ T^" 
 
 tracts in 
 
 by action of debt [placitum de debit o). It was a good isth ecu- 
 defence that the party's seal had been lost and affixed by ^^^" 
 a stranger without his knowledge, at least if the owner covenant. 
 had given public notice of the loss (c) : 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. This detail shows how much more archaic 
 
 {a) Lib. 10, c. IS, and more fully to actions of debt or the like : Y. B. 
 
 ib. 0. 8. " Curia dciniini regis " 38 H. 6, 29, pi. 11. 
 is significant, for the ecclesiasti- {b) This is evidently the true 
 
 cal courts did take cognizance of reading : the printed book has 
 
 breaches of informal agreements pocnae, a mere printer's misreading, 
 
 as being against good conscience, as I suspect, of pene, which is given 
 
 ib. c. 12, and see Blackstone's by the best MSS. Bracton was 
 
 Comm. 1. 52, and authorities there copying the language of I. 3. 18, 
 
 cited, and Archdeacon Hale's Series § 3. 
 
 of Precedents and Proceedings, (c) GlanvUl (L. 10, c. 12) has not 
 
 where several instances wUl be even this : Britton, 1, 164, 16G, asin 
 
 found. It is worth noting that the text. ' ' Pur ceo qe il ad conu 
 
 they seem to cease after the end of le fet estre seen en pai-tic, soit 
 
 the loth century, i.e. when the agarde purlepleyntif ct sepurveye 
 
 action of assumpsit in the temporal autre foiz le defendaunt de meillour 
 
 courts had become well established, gardeyn." Cp. Fleta, 1. 6, c. 33, 
 
 and therefore the spiritual courts § 2 ; c. 34, § 4. That the practice 
 
 would have been prohibited from of publishing formal notice in case 
 
 entertaining such matters, as they of loss really existed is shown by 
 
 had already been xJi'ohibited from the example given in Blount's Law 
 
 entertaining suits nominally pvo Dictionary, s.v. Sigillum, dated 18 
 
 laesione fidci, but really equivalent Eic. 2.
 
 &c 
 
 140 FORM OF CONTRACT. 
 
 Englisli law still was than the developed Roman system 
 from which it borrowed much of its language : and also 
 that delivery was not then known as one of the essential 
 Debt on requisites of a deed. As to informal contracts : An action 
 cOTitract ^^ ^®^^ might be brought for money lent, or the price of 
 detinue, goods sold and delivered, and an action of detinue (which 
 was but a species of debt) for chattels bailed (c/). And 
 probably an action of debt might be maintained for work 
 done or on other consideration completely executed. At 
 least the contractus innominati [do ut dcs, &c.) are distinctly 
 recognized by the text- writers, though in Bracton strangely 
 out of their natural place, under the head of conditional 
 grants (Bracton 18^, 19rt ; Fieta 1. 2, c. 60, § 23) {c). 
 About two centuries later we find it quite clear that an 
 action of debt will lie on any consideration executed, 
 though the term is not used, and also — which marks a 
 decided advance since Bracton's time — 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 (/). 
 
 Obligations quasi ex contractu might in some cases at 
 least be enforced by action of debt. Such an action 
 brought to recover money paid on a failure of consideration 
 was held good in form (though there was in fact a covenant), 
 Y. B. 21 & 22 Ed. 1, p. 600 (Eolls ed.), A.D. 1294, where 
 it is also said that money paid as the price of land might 
 be recovered back in an action of debt if the seller would 
 
 {d ) For the precise diflPerence in quired of the plaintiff in the absence 
 
 the developed forms of ijleadiug 8ee of a deed. "The Common Law," 
 
 per Maule, J. 15 C. B. 203. The Boston, 18S1, pp. 25G, sqq. 
 decision of the C. A. in Bnjont v. {c) In Bracton fo. 19«, lines 11, 
 
 Herbert, 3 C. P. D. 389, that an 15 ined. 1569,«t(thesecond),j:;oss««< 
 
 action for ■wrongful detention is and tU repeterc possim are corrupt, 
 
 "founded on tort" within the The true readings, conjecturally 
 
 meaning of the Coimty Court Acts restored long ago by Giiterbock, and 
 
 is, and professes to be, beside the in fact given almost identically by 
 
 historical question. Mr. Justice the best MSS., are sed . . . possum 
 
 O. W. Holmes, of Massachusetts, . . . non vt repetere possim. 
 has most ingeniously connected (/) Y. B. Mich. 37 H. 6 [A.D. 
 
 the historical limits of the action of 1159], 8, pi. 18, by I'risot, C. J. 
 debt with the method of proof re-
 
 ENGLISH FORMS OF ACTION. 141 
 
 not enfeoff the buyer. This action was probably a direct 
 imitation of the Roman Conclictions, and must not bo 
 confused with the modern action of assumpsit on the 
 *•' common counts." 
 
 The -action of account was also in use, sec 52 Hen. 3 Account. 
 (Stat. Marlb.) c. 17, 13 Ed. 1 (Stat. Westm. 2) o. 23. It 
 seems to have been for a long time a remedy of wide 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 been paid on condition or 
 to be dealt with in some way prescribed by the person 
 paying it (see cases in 1 Rol. Abr. 116). One must not 
 be misled by the statement that "no man sliall be charged 
 in account but as guardian in socage, bailiff or receiver " 
 (11 Co. Rep. 89, Co. Lit. 172 a) : 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" (F. N. B. 116 Q,). This 
 action might be brought by one partner against another 
 {ih. 117 D). 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 (Co. Lit. 90 b, 
 and see Earl of DevonsJdre's ca. 11 Rep. 89) : but it was 
 made applicable both for and against executors by various 
 statutes to which it is needless to refer particularly {g). 
 In modern times this action was obsolete except as between 
 tenants in common (Ji). 
 
 On informal executory agreements there was in general 
 no remedy in the King's Courts. The Ecclesiastical Courts 
 
 (17) The action is given against s. 27. 
 executors by 4 & 5 Ann. c. 3 (Rev. (/() Sec Lindley on Partnership, 
 
 Stat. ; 4 Ann. c. 16 in RufEhead) 2. 1022, note k.
 
 142 FORM OF CONTRACT. 
 
 however took notico of them (see note p. 139 supra) : and 
 it may well be that executory mercantile contracts were 
 also recognized in the special courts which administered 
 Where no the law merchant. But we cannot here attempt to throw 
 common'^ any light on that which Lord Blackburn has found to be 
 law. Q^Q of ^]^e obscurest passages in the history of the English 
 
 law (/■). Also there are traces of exceptions by local custom. 
 We read in F. N. B. 14G A. that " in London a man shall 
 have a writ of covenant without a deed for the covenant 
 broken," but the authorities referred to do not bear this 
 • out (A-). 
 Later in- Jt is not Without significance that when a general remedy 
 ofassuini> was at last found indispensable it was introduced in the 
 "*^- form of an action nominally ex delicto. It was a new 
 
 variety of trespass on the case that ultimately became the 
 familiar action of assumpsit and the ordinary way of 
 enforcing simple contracts. The final prevalence of assump- 
 sit over debt, like that of trover over detinue (/), was no 
 doubt much aided by the defendant not being able to wage 
 his law and by certain other advantages : but the reason of 
 its original introduction was to supply a remedy where 
 debt would not lie at all. This was not effected without 
 some failures. In the first recorded case {i)i), the action was 
 against a carpenter for having failed to build certain houses 
 as he had contracted to do. The writ ran thus : " Quare 
 
 (j) Blackl)urn on the Contract of roitghes v. Batjnc, 5 H. & N. at 
 
 Sale, 207-208. In addition to the p. 301. 
 
 quotation there from the Year Book [m) Mich. 2 H. 4, 3 b, pi. 9, 
 
 of Ed. 4, see now T. B. 21 & 22 see Reeves Hist. Eng. Law (ed. 
 
 Ed. 1, p. 458. Finlason), 2. 508, and 1 C. P. 
 
 (/.•) The Year Book 27 H. G. 10, Cooper, Appx. 549, where sub- 
 pi. 6, shows only that by the custom sequent cases are also collected and 
 of London a covenant to repair bij translated. Actions of trespass on 
 i/ie feso/- was implied in leases: the the case had previously been 
 case in 1 Leo. 2 shows a custom at allowed for malfeasance by the 
 Jlristol " that convenlio ore Icnus negligent performance of contracts 
 facta shall bind the covenantor as (for which it is still held that there 
 strongly as if it were made by is an alternative remedy in con- 
 writing," which being taken tract and in tort), but an action for 
 strictly was held not to bind mere non-feasance was a novelty, 
 executors. See Bigelow, L. C. on Law of Torts, 
 
 (/) Sec per Martin, B., Bur- 58G.
 
 HISTOUY OF ASSUMPSIT, 113 
 
 cum idem [the defendant] ad quasdam domos ipsius 
 Laurentii [the plaiutilT] bono ct fideliter infra ccrtuni 
 tempus de novo construend' apud Grimesby assumpsissot, 
 praedictus tamen T. domos ipsius L. infra tempus praedic- 
 tum, &c., construere non curavit ad dampnum ipsius 
 Laurentii decem libr', &c." The report proceeds to this 
 effect : — 
 
 " Tincif. — 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 pray for our damages. 
 
 Tirmt. — This is covenant or nothing {ceo cat mercmcnt 
 101 covenant). 
 
 Brenchoiloj, 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. 
 
 {Ilanlifovd, J. observed that an action on the Statute 
 of Labourers might meet the case.) 
 
 llichJiill, J. — For that you have counted on a covenant 
 and show none, take nothing by your writ but be in 
 mercy." 
 
 This was followed by at least one similar decision [n), but 
 early in the reign of Henry VI. a like action was brought 
 against one Watkins for failure to build a mill within the 
 time for which he had promised it, and two out of three 
 judges (Babington, C. J., and Oockaine, J.) were decidedly 
 in favour of the action being maintainable and called on 
 the defendant's counsel to plead over to the merits (o). 
 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 main- 
 tained on this matter," he 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 
 
 (h) Mich. 11 H. 4. 33, pi. GO. (o) Hil. 3 H. 6, 36, pi. 33. 
 
 And see Bigelow, L. C. 587.
 
 144 
 
 FORM OF CONTRACT. 
 
 Rule that 
 deeds may 
 not be 
 written on 
 ■wood, &c.: 
 suggested 
 origin 
 thereof. 
 
 Require- 
 ments of 
 form now 
 treated as 
 
 SO it came to pass in the two following reigns, when the 
 general application of the action of assumpsit was well 
 established (see Beeves, 3. 182, 403). But only in 1596 
 was it finally decided that assumpsit was admissible at the 
 plaintiff's choice where debt would also lie {p). The fiction 
 of the action being founded on trespass was abolished by 
 the Common Law Procedure Act. 
 
 "We need not stop to consider the requisites of a deed, 
 but it may be noticed that when the books {e. rj. Shepp. 
 Touchst. 54) say a deed must be written on parchment or 
 paper, not on wood, &c., this is not due, as a modern reader 
 might at first sight think, to mere exuberance of fancy or 
 abundance of caution. The key is to be found, we believe, 
 in the common use of wooden tallies as records of contracts 
 in the middle ages, and in the fuller statement of Fitzher- 
 bert (F. N. B. 122 I) that if such a tally is sealed and 
 delivered by the party it will not be a deed. The Year 
 Books there referred to show that attempts were in fact 
 made to rely on sealed tallies as' equivalent to deeds. 
 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 ((/), 
 and the Exchequer tallies used till within recent times 
 were likewise written upon (r). 
 
 The foregoing sketch has shown how in the ancient view 
 no contract was good (as indeed no act in the law was) 
 unless it brought itself within some favoured class by 
 
 (j») SlacWs ca. 4 Co. Rep. 91 a, in 
 Ex. Ch. It was still later before it 
 was admitted that the substantial 
 cause of action in assumpit was the 
 contract. O. "VV. Holmes, The 
 Common Law, 284—287. 
 
 {q) Trin. 12 H. 4. 23, pi. 3. The 
 other citations we have been able 
 to verify are Pasch. 25 E. 3. 83 
 (wrongly referred to as 40 in the 
 last case and in the margin of 
 Eitzh.), pi. 9, where the reporter 
 
 notes it is said to be [by custom] 
 otherwise in London ; and Trin. 
 44 Ed. 3. 2], pi. 23. 
 
 (>■) See account of them in Penny 
 Cyclopedia, s. v. Tally. The use of 
 tallies appears not to be obsolete on 
 the Continent. The French (art. 
 1333) and Italian (art. 1332) Civil 
 Codes expressly admit them as evi- 
 dence between traders who keep 
 their accounts in this way.
 
 FOKMAL CONTRACTS IX MODKIIN" LAW. 145 
 
 satisfying particular conditions of form, or of evidence, or the exccp- 
 both. The modern view to wliicli the law of England has ^^^^' 
 now long come round is the reverse, namely that no con- 
 tract need be in any particular form unless it belongs to 
 some class in which a particular form is sj)ecially required. 
 
 Before we say anything of these classes it must be men- Contracts 
 tioned that contracts under seal are not the only formal 
 contracts known to EngHsh law. There are certain so- 
 called " contracts of record " which are of a yet higher 
 nature than contract 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 acknowledged 
 before a judge or other officer having authority for that 
 purpose and em-olled in a Court of Eecord," 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 (.s) . 
 
 The kinds of contracts subject to restrictions of form are 
 these : 
 
 (1). At common law, the contracts of corporations. The Contracts 
 rule that such contracts must in general be under seal is ^J.[^i '^ 
 remarkable as not being an institution of modern positive forms. 
 law but a survival from a time when the modern doctrine 
 of contracts was yet unformed. Of late years great 
 encroachments have been made upon it, which have pro- 
 bably not reached their final limits; as it stands, the law 
 is in a state of transition or fluctuation on some points, and 
 demands careful consideration. Both the historical and the 
 practical reason lead us to give this topic the first place. 
 
 (2). Partly by the law merchant and partly by statute, 
 the peculiar contracts expressed in negotiable instruments. 
 
 {s) As to Contracts of Kecord, of statutes merchant, &c. 2 Wms. 
 see Anson, p. 43, and for an accoimt Saund. 21G-222. 
 
 P. L
 
 146 
 
 FORM OF CONTRACT. 
 
 Corpora- 
 tions. 
 Old rule : 
 Seal 
 
 generally 
 requii-ed. 
 
 (3). By statute only — 
 
 A. The various contracts within the Statute o£ Frauds. 
 Certain sales and dispositions of property are regulated by 
 other statutes, hut mostly as transfers of ownership 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 
 Limitation 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. 
 
 1. As to Contracts of Corporations. 
 
 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 appoint- 
 ment of household servants and the like {t). The principle 
 of these exceptions being, in the words of the Com't of 
 Exchequer Chamber, " convenience amounting almost to 
 necessity " («), 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 the 
 reasons that may be given for it : — 
 
 ' ' The seal is required as authenticating the concurrence of the whole 
 body corporate. If the legislature, in erecting a body coiporate, 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 bo matter purely of form and not of substance. 
 Everyone becoming a member of such a corporation knows that he is 
 liable to be boimd in his corporate character by such an act ; and persons 
 
 (0 1 Wms. Saund. G16, GIG, and 
 see old authorities collected in notes 
 to Arnold v. Maijur of I'oolc, 4 M. & 
 Gr. 87G, and I'lshmontjcni' Company 
 
 V. Eohcrtson, 5 M. & Gr. 182. 
 
 {u) Church v. Imperial Gas, Sjc. 
 Company, 6 A. & E. 84G, 861.
 
 CONTRACTS OF CORPORATIONS. 147 
 
 dealing witli the corporation know that by such an act the body will bo 
 bound. But iu other cases the seal is the only authentic evidence of what 
 the corporation has done or agreed to do. The resolution of a meeting, 
 howCA'er 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 tiling : 
 cither a seal or some substitute for a seal, which by law shall bo taken as 
 conclusively evidencing the sense of a whole body corporate, is a necessity 
 inherent in the very nature of a corporation " (c). 
 
 It is, no doubt, a matter of " inherent necessity " that 
 an artificial person can do nothing save by an agent ; 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 recog- 
 nized symbol of his authority. But there is no reason in 
 the nature of things why his authority should not be 
 manifested in other ways : nor is the seal of itself con- 
 clusive, for an instrument to which it is in fact afiixed 
 without authority is not binding on the corporation (x). 
 On the other hand, altliough it is usual and desirable for 
 the deed of a corporation to be sealed with its proper 
 corporate seal, it is laid down by high authorities that any 
 seal will do {i/). 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 of the 
 company any seal on which the name is not so engraved 
 is subject to a penalty of 50/. (ss. 41, 42) : but this would 
 not, it is conceived, prevent instruments so executed from 
 
 (f) Mayor of Ludloiv y. Charlton, doubted, Grant on Corp. 59, but 
 
 6 M. & "W". 815, 823, adopted by only on the ground of convenience 
 
 Pollock, B., in Mayor of Kidder- and without any authority. The 
 
 minster v. Hardu-ick, L. R. 9 Ex. at like rule as to sealing by an indi- 
 
 p. 24, and see per Keating, J., ^:f«A<iM vidual is quite clear and at least 
 
 V. Guardians of Bethnal Green, L. as old as Bracton : Non multum 
 
 R. 9 C. P. at p. 95. refert utrum [carta] proprio vel 
 
 [x] Bank of Ireland v. Evans'' alieno sigillo sit signata, cimi semel 
 
 Charities, 5 H. L. C. 389. a donatore coram testibus ad hoc 
 
 (y) 10 Co. Rep. ZOb, Shepp. vocatis recognita et concessa f uerit, 
 
 Touchst. 57. Yet the rule is fo. 38ff. Cp. Britton, 1. 257. 
 
 L 2
 
 148 
 
 FORM OF OOXTRACT. 
 
 Modem 
 excep- 
 tions. 
 Bank of 
 Columbia 
 V. Patter- 
 son 
 
 (Supreme 
 Court, 
 U.S.) 
 
 Not so 
 wide in 
 England. 
 
 Ibinding the company (;:) . The seal of a building society 
 incorporated under the Building Societies Act, 1874 
 (37 & 38 Yict. c. 42, s. 16, sub-s. 10), "shall in all 
 cases bear the registered name thereof," but no penalty 
 or other consequence is annexed to the non-observance of 
 this direction. 
 
 We now turn to the exceptions. According to the 
 modern authorities it is now established, though not till 
 after sundry conflicting decisions, that the "principle of 
 convenience amounting almost to necessity " will cover all 
 contracts which can fairly be treated as necessary and 
 incidental to the purposes for which the corporation exists : 
 and that in the case of a trading corporation all contracts 
 made in the ordinary com-se of its business or for pm'poses 
 connected therewith fall within this description. The same 
 or even a wider conclusion was much earlier arrived at in 
 the United States. As long ago as 1813 the law was thus 
 stated by the Supreme Court : — 
 
 " It would seem to be a sound rule of law that wherever a corporation 
 is acting within the scope of the legitimate purposes of its institution all 
 parole contracts made by its authorized agents are express promises of the 
 corporation, and all duties imposed on them by law, and all benefits 
 conferred at their request, raise implied promises for the enforcement of 
 which an action may well lie " (a). 
 
 In England this rule still holds good only for trading 
 corporations, and perhaps also for non-trading corporations 
 estabhshed in modern times for special purposes. The 
 former conflict of decisions is much reduced, but there 
 
 {z) Notwithstandingthestatutory 
 penalty, there is an instance on re- 
 cord of the private seal of a director 
 being used when the company had 
 been so recently formed that there 
 had been no time to make a proper 
 seal, Grai/v. Lncis, 8 Eq. atji. 531. 
 The like direction and penalty are 
 contained in the Industrial and 
 Provident'Socicties Act, 1870, 39 & 
 40 Vict. c. 45, Bs. 10, sub-s. 1, and 
 18, sub-s. 2. As to execution of 
 deeds abroad by companies under 
 
 the Acts of 1862 and 1867, see the 
 Companies Act, 1862, s. 55, and the 
 Companies Seals Act, 1864 (27 Vict. 
 c. 19); in Scotland, the Conveyanc- 
 ing (Scotland) Act, 1874, 37 & 38 
 Vict. c. 94, s. 56. 
 
 [a] lituik of Colnmbia v. Fatterson, 
 7 Cranch, 299, 306. It is also held 
 by the American authorities that 
 the appointment by a corporation of 
 an agent, officer, or attorney need 
 not be under seal.
 
 TRADIXG COJll'OllATIONS. 149 
 
 remains the inconvenient distinction of two if not three 
 diiferent rules for corporations of different kinds. 
 
 As concerns trading corjiorations the law may be taken Trading 
 as settled by the unanimous decisions of the Coui-t of tkms^''^' 
 Common Pleas and of the Exchequer Cliamber in South Contracts 
 
 in coixrsG 
 
 of Ireland CoUlerij Co. v. Waddle {b). The action was of business 
 brought by the company against an engineer for non- <ioii'twant 
 delivery of pumping machinery, there being no contract Ireland 
 under seal. Bovill, C. J. said in the Court below that it c° ^^^^ 
 was impossible to reconcile all the decisions on the subject: Waddle. 
 but the exceptions created by the recent eases were too 
 firmly established to be questioned by the earlier deci- 
 sions, which if inconsistent with them must be held not to 
 be law : — 
 
 "These exceptions apply to all contracts by trading corporations 
 entered into for the pui-poses for which they are incorporated. A 
 company can only carry on business by agents, — managers and others ; 
 and if the contracts made by these persons are contracts which relate to 
 objects and purposes of the company, and are not inconsistent with the 
 rules and regulations which govern their acts (<?), they are valid and 
 binding upon the company, though not under seal. It has been urged 
 that the exceptions to the general rule are still limited to matters of 
 frequent occurrence and small importance. The authorities however do 
 not sustain the argument." 
 
 The decision was affirmed on appeal without hearing Cases 
 counsel for the plaintiffs, and Cockburn, C. J. said the ^^^^^f^^^' 
 defendant was inviting the Court to reintroduce a relic of 
 barbarous antiquity. It is submitted that the following 
 cases must since this be considered as overruled : — 
 
 East London Wateru-orhs Co. v. Baileij, 4 Bing. 283. Action for non- 
 delivery of iron pipes ordered for the company's works id). Expressly 
 
 {b) L. R. 3 C. P. 463, in Ex. Ch. p. 122 above. For details see Note 
 
 4 C. P. 617. Most if not all of the D, in Appendix, 
 previous authorities are there re- {d) The directors were authorized 
 
 f erred to. by the incorporating Act of Parlia- 
 
 (c) This qualification is itself ment to make contracts ; but it was 
 
 subject to the rule established by held that this only meant they 
 
 Royal British Bank v. I'urqnand, 6 might affix the seal without calling 
 
 E. & B. 237 ; 25 L. J. Q. B. 327, a meeting, 
 and similar cases, and mentioned at
 
 150 FORM OF CONTRACT. 
 
 said in the Com-t below to be no longer law, per Montague Smith, J. 
 See L. E. 3 C. P. 475. 
 
 Somersham v. TFolverhanipion Watcricorks Co. 6 Ex. 137, 20 L.J. Ex. 193, 
 Contract under seal for erection of machinery : price of extra work don 
 with approval of the company's engineer and accepted, but not within 
 the terms of the sealed contract, held not recoverable. 
 
 Dicjgle v. London % Blachwall Ry. Co. 5 Ex. 442, 19 L. J. Ex. 308, 
 "Work done on railway in alterations of permanent way, &c. : this case 
 already much doubted in Henderson v. Australian Royal Mail cjc. Co. 5 E. 
 & B. 409, 24 L. J. Q. B. 322, which is now confirmed in its full extent 
 by the principal case. 
 
 Probably Finlay v. Bristol % Exeter Ry. Co. 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, 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 circumstances : see per Bovill, C. J. L. R. 3 C. P. 471. 
 
 Even in the House of Lords it has been assumed and said, though 
 fortunately not decided, that a formal contract under seal made with a 
 railway company cannot be subsequently varied by any informal mutual 
 consent : Midland G. W. Ry. Co. of Lreland v. Johnson, 6 H. L. C. 798, 
 812. 
 
 Cases The following cases are affirmed or not contradicted. 
 
 ^ ^^ ' Some of them were decided at the time on narrower or 
 more particular grounds, and in one or two the trading 
 character of the corporation seems immaterial : — 
 
 Beverley v. Lincoln Gas Co. 6 A. & E. 829. Action against the company 
 for price of gas meters supplied. 
 
 Church v. Lmperial Gas Co. ib. 846, in Ex. Ch. Action by the company 
 for breach of contract to accept gas. A supposed distinction between 
 the liability of corporations on executed and on executory contracts was 
 exploded. 
 
 Co2yper Miners of England v. Fox, 16 Q. B. 229, 20 L. J. Q. B. 174. 
 Action (in effect) 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. 
 
 Loice V. L. # N. W. Ry. Co. 18 Q. B. 632, 21 L. J. Q. B. 361. 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 gromid that a parol contract for the occupation was within the statu- 
 tory powers of the directors and might be presumed : cp. the next case.
 
 TRADING AND NON-TRAUING CORPORATIONS. 151 
 
 Pauling v, Z. S; N. W. Eij. Co. 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 Companie.s Clauses Con- 
 solidation Act be made by the directors without seal, and it was held 
 that the acceptance and use were evidence of an actual contract. 
 
 Henderson v. Australian Royal Mail Co. 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. Hero 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 contract in its nature is directly connected with the purpose 
 of the incorporation " (by Erie, J.). 
 
 Australian lioyal Mail Co. v. Marzctti, 11 Ex. 228, 24 L. J. Ex. 273. 
 Action by the company on agreement to supply provisions for its pas- 
 senger ships. 
 
 Meuter v. Electric Telegraph Co. 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 
 authority to make it. 
 
 Ebbw Vale Company^s case, 8 Eq. 14, decides that one who sells to a 
 company goods of the kind used in its business need not ascertain that 
 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. 
 
 As concerns non-trading corporations, the question lias Non- 
 never "been decided by a Court of Appeal. But tlie weight ^'^^'^^ 
 
 •^ ^ _ •'•■'• ^ o corpora- 
 
 of tHe most recent authorities, together with the analogy tions. 
 of those last considered, seems to give a sufficient warrant created 
 for the statement made above, that all contracts necessary ^^"^ special 
 and incidental to the purposes for which the corporation state of ' 
 exists may be made without seal, at least when the corpo- ^j^^^'^^T^ . 
 ration has been established for special purposes by a cessary 
 modern statute or charter. On the rule as thus limited cidental" 
 the latest case is Nicholson v. Brndfield Union {e), where it contracts 
 was held that a corporation is liable without a contract seal. 
 under seal for 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 follows : — 
 
 (e) L. R. 1 Q. B. 620.
 
 152 FUKM OF COX'IRACT. 
 
 Sanders v. St. Keofs Union, 8 Q. B. 810, 15 L. J. M. C. 104. Iron gates 
 for workhouse supplied to order -without seal and accepted. 
 
 Paine v. Strand Union, ib. 326, 15 L. J. M. C. 89, is really the same way, 
 though at first sight contra : the decision being on the ground that 
 making a plan for rating purposes of one parish within the union was not 
 incidental to the purposes for which the guardians of the tmion were in- 
 corporated : 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. CucJifeld Union, 21 L. J. Q. B. 349 (in the Bail Coiirt, by 
 "Wightman, J.) Builders' work done in the workhouse. The former cases 
 are reviewed. 
 
 Eaigh v. North Brierly Union, 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 wMch 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, 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. Wimlledon Local Board (C. A.) 4 C. P. D. 48. Whether the 
 preparation of plans for new ofiices for an incorporated local Board, which 
 plans were not acted on, is work incidental and necessary to the purposes 
 of the Board, quaere. The actual decision was on the ground that con- 
 tracts above the value of 50/. were imperatively required by statute to be 
 under seal. 
 
 Municipal With regard to municipal corporations (and it is presumed 
 ^P'^P^^^' , other corporations not created for definite puhlic purposes) 
 Old rule the ancient rule seems to be still in force to a great extent. 
 ^mbk^' -^ action ^^ill not lie for work done on local improve- 
 ments (/), or on an agreement for the purchase of tolls by 
 auction (r/), without an agreement under seal. The Court 
 of Common Pleas hold (in 1875) that where a municipal 
 corporation owns a graving dock a contract to let a ship 
 have the use of it need not be under the corj)orate seal. 
 
 ( f) Mayor of Ludlow \. Cltarlton, {g) Mayor of Kidderminster v. 
 
 6 M. & W. 815. Eardivick, L. R. 9 Ex. 13.
 
 MUNICIPAL CORPORATIONS. 153 
 
 This was put however on the ground that the case does 
 fall within the ancient exception of convenience resting on 
 the frequency or urgency of the transaction. The admis- 
 sion of a ship into the dock is a matter of frequent and 
 ordinary occurrence and sometimes of urgency (//). 
 
 There has also been little disposition to relax the rule ■'^PPf^iQt- 
 
 ■•• _ incuts to 
 
 in the case of appointments to offices, and it seems at offices by 
 present that such an appointment, if the office is of any ti^ons"^^' 
 importance, must be under the corporate seal to give the 
 holder a right of action for his salary or other remunera- 
 tion. This appears by the following instances : — 
 
 Appointment of attorney : Arnold v. Mayor of Toole, 4 M. & Grr. 8G0. 
 It is true that the corporation of London appoints an attorney in court 
 without deed, but that is because it is matter of record : see 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. 0. Ry. Co. 2 Ex. 344, 17 L. J. 
 Ex. 223, 297. Nor can the other party dispute it after taking steps in 
 the action: Thames Haven, ^c. Co. v. Hall, 5 M. & Gr. 27 i. Cp. Itcg. v. 
 Justices of Cumberland, 17 L. J. Q. B. 102. 
 
 Grant of military pension by the East India Company in its political 
 capacity : Gibson v. E. I. Co. 5 Bing. N. C. 262. 
 
 Increase of town clerk's salary in lieu of compensation : Meg. v. Mayor 
 of Stamford, 6 Q. B. 434, L. J. Dig. 6, 422. 
 
 Office with profit annexed (coal meter paid by dues) though held at the 
 pleasure of the corporation : Smith v. Cartwright, 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 was 
 also wrong on another ground.) 
 
 Collector of poor rates: Smart y. West Ham Union, 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 : Austin v. Guardians of Bethnal Green, 
 L. K. 9 C. P. 91. 
 
 Eunstan v. Imperial Gas Light Co. 3 B. & Ad. 125, as to dii-ectors' 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, ^c. Co. 3 Ex. 841, 18 L. J. Ex. 345: agent 
 appointed for a special negotiation with another company not allowed to 
 
 [h) Wells V. Kingston-upon-Hull, L. E. 10 C. P. 402.
 
 154 
 
 FORM OF CONTRACT. 
 
 No equity 
 to enforce 
 informal 
 agreement 
 against 
 corpora- 
 tion. 
 
 Eight of 
 corpora- 
 tions to 
 sue on 
 contracts 
 executed. 
 
 Tenancy 
 and. occu- 
 pation. 
 
 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, 
 although by another section of the special Act the directors had full 
 power to ' ' appoint and displace . . . aU such managers, officers, 
 agents ... as they shall think proper." It seems difficult to 
 support the decision ; this was not like an ap^Dointment to a continuing 
 office ; and cp. JRer/. v. Justices of Cumberland, 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 thii'd parties. 
 
 It lias 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 (^). 
 
 The rights of corporations 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 
 boimd(/i-). 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 (/) and will enable the 
 corporation to enforce any term of the agreement which is 
 applicable to such a tenancy (>;?), and a tenant who has 
 occupied and enjoyed corporate lands without any deed 
 may be sued for use and occupation (/?). 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 
 
 (i) Kirk v. Bromley Union, 2 
 Phill. 640 ; Grampton v. Varna Hi/. 
 Co. 7 Ch. 562. 
 
 (k) Fishmongers^ Co. v. Robertson, 
 5 M. & Gr. 131. The judgment on 
 this point is at pp. 192-6 ; but the 
 dictum contained in the passage 
 "Even if . . . against themselves," 
 pp. 192-3 (extending the right to 
 sue without limit) is now over- 
 ruled. See 3Iaijor of Kidderminster 
 V. llardicick, L. R. 9 Ex. 13, 21. 
 
 (0 Wood V. Tate, 2 B. & P. N. R. 
 247. 
 
 (;») EccJes. Commrs. v. Merral, L, 
 R. 4 Ex. 162. By Kelly, C. B., 
 this is correlative to the tenant's 
 right to enforce the agreement in 
 equity on the ground of part per- 
 formance, scd qu. 
 
 («) Mayor of Stafford v. Till, 4 
 Bing. 75. The like as to toUs, 
 Mayor of Carmarthen v. Leivis, 6 C. 
 & P. 608, but see Serj. Manning's 
 note, 2 M. & Gr. 249.
 
 CONTRACTS OF CORPORATIONS. 155 
 
 have acted as upon an executed contract, it is to be pre- 
 sumed against them that everything has been done that 
 was necessary 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 " (o). 
 And a person by whose permission a corporation has 
 occupied lands may sue the corporation for use and occu- 
 pation {])). In the case of a yearly tenancy the presump- Corpora- 
 tion is of an actual contract, but the liability for use and 
 
 on quasi- 
 
 occupation is rather quasi ex contractu (q) . It is settled that contracts 
 
 1 . ^ ' . ,. . generally. 
 
 m general a cause of action on a " contract implied m 
 law," as it is inconveniently called in our books, is as good 
 against a corporation as against a natural person. Thus a 
 corporation may be sued in an action for money received 
 on the ground of strict necessity ; " it cannot be expected 
 that a corporation should put their seal to a promise to 
 return moneys which they are wrongfully receiving " {)•). 
 It was held much earlier that trover could be maintained 
 against a corporation — a decision which, as pointed out in 
 the case last cited, was analogous in principle though not 
 in form (s). 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 {t). 
 
 Forms of contracting otherwise than under seal are Statutory 
 provided by many special or general Acts of Parliament contract. 
 creating or regulating corporate companies, and contracts 
 
 (o) Doe d. Pennington v. Taniere, (?•) Hall v. Mayor of Stvansea, 5 
 
 12 Q. B. 998, 1013, 18 L. J. Q. B. Q. B. 526, 549, 13 L. J. Q. B. 107. 
 
 49. The like of a, quasi corporation cm- 
 
 (p) Loice V. L. ^- N. W. Ey. Co. powered to sue and be sued by an 
 
 18 Q. B. 632, 21 L. J. Q. B. 361. officer, Jefferys v. Gurr, 2 B. & Ad. 
 
 [q) The liability existed at com- 833. 
 
 nion law, and the statute 11 Geo. 2, (.s) Yarborough v. Bank of Bng- 
 
 0. 19, s. 14, made the remedy by land^ 16 East, 6. See early cases of 
 
 action on the case co-extensive with trespass ag-ainst corporations cited 
 
 that by action of debt, see Gibson v. by Lord Ellenborough at p. 10. 
 
 KirJc, 1 Q. B. 850, 10 L. J. Q. B. {t) Hunt v. Wimbledon Local 
 
 297. Since the G. L. P. Act the Board (0. A.), 4 0. P. D. at pp. 53, 
 
 statute seems in fact superfluous. 57.
 
 156 FORM OF CONTRACT. 
 
 duly made in tliose forms are of course valid. But a 
 statute may, on the other hand, contain restrictive provi- 
 sions as to the form of corporate contracts, and in that 
 case they must 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 corporation has had the full benefit of 
 it (u). The general results seem to stand thus : — 
 
 Summary Jq the absence of enabling or restrictive statutory pro- 
 of results. ... r 
 
 visions, which when they exist must be carefully attended 
 
 to— 
 
 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 instruments is a substantive part of 
 that business, or is provided for by its constitution (//) . 
 
 A non-trading corporation, if expressly created for special 
 purposes, may make without seal any contract incidental 
 to those purposes ; 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 con- 
 tract 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 (2) and to the same extent as to 
 natural persons. 
 
 {(/) FrcndY. Dennett, i C B.N. 1875, applies only to contracts 
 
 S. 576, 27 L. J. C. P. 314 ; Uioii known at the time of making them 
 
 V. Wimbledon Local Board, 3 C. P. to exceed the specified "value or 
 
 D. 208, in C. A. 4 C. P. D. 48; amount" of 50/'. 
 
 Young (j- Co. v. Mayor of Lcaminy- {;/) See p. 130, supra. 
 
 ton, 8 App. Ca. 517. In Uaton v. (c;) Assuming F'uihnj v. Bristol 
 
 Baskcr (0. A.), 7 Q. B. D. 52!), it and E.vctcr liy. Co. 7 Ex. 409, 21 
 
 was decided that a provision of this L. J. Ex. 117, not to be now law. 
 kind in the Public Health Act,
 
 NEGOTIAIU.E IXSIIIIMKNTS. lo7 
 
 A corporation is bound by an obligation implied in law 
 whenever under the like cii-cunistances a natural person 
 would be so bound. 
 
 It is mucb 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 abeady vu'lually 
 overruled should be expressly declared to be no longer of 
 authority (a). 
 
 2. Nefjotiahle instruments. Negoti- 
 Tho peculiar contracts undertaken by the persons who gtrui^nts 
 
 issue or indorse 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 an unconditional order in 
 writing [h). 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 (c). 
 
 3. As to imrcly statutovij forms. Statute of 
 A. Contracts within the Statute of Frauds. ^'■^''^'• 
 To write a commentary on the Statute of Frauds would 
 
 be beyond the 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 construction of it. 
 
 The statute (29 Car. 2, c, 3) enacts that no action shall 
 be brought on any of the contracts specified in the 4th 
 section " unless the agreement upon which such action 
 shall be brought or some memorandum or note thereof 
 shall be in writing and signed by the party to be charged 
 therewith or some other person thereunto by him law- 
 fully authorized." The contracts comprised in this section 
 are — 
 
 a. Any special promise by an executor or administrator rromises 
 
 {a) See per Lord Blackburn, 8 {h) Bills of Exchange Act, 1882 
 
 App. Ca. at p. 523, agreeing with (45 & 46 Vict. c. 61), s. <3. So of 
 Liudley, L. J. 8 Q,. B. D. at p. 585. promissory notes, s. 83. 
 
 (c) lb. s. 17.
 
 158 
 
 FORM OF CONTRACT. 
 
 by execu- 
 tor, &c. 
 
 " to answer damages out of liis own estate," No difficulty 
 has arisen on tlie 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 memo- 
 randum 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 neces- 
 sary to make a contract good at common law are still 
 required as much as before {d). 
 
 Gruaran- 
 ties. 
 
 /3. " Any special promise to answer for the debt 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 or guaranty unless and 
 until there is an actual principal debtor. " Take away the 
 foundation of principal contract, the contract of suretyship 
 would fail" ((?). Where the liability, present or future, 
 of a third person is assumed as the f oimdation of a contract, 
 but does not in fact exist, then, independently of the 
 statute, and on the principle of a class of cases to be ex- 
 plained elsewhere, there is no contract. On the other hand 
 a promise to be primarily liable, or to be liable at all events, 
 whether any third person is or shall become liable or not, 
 is not within the statute and need not be in writing. 
 Whether particular spoken words, not in themselves con- 
 clusive, e.g. " Go on and do the work and I will see you 
 paid," amount to such a promise or only to a guaranty is 
 
 {d) As to these contracts of exe- 
 cutors, 2 Wins. Exors, Pt. 4, Bk. 
 2, c. 2, ^ 1. 
 
 ((') MoimtsfepJtcn v. Lal-eman, L. 
 R. 7 Q. 15. I'JC, 202 (in Ex. Ch.) 
 per WiUes, J., affd. L. R. 7 H. L. 
 17 nom. Lal-eman v. Mountstephen.
 
 STATUTE OF FRAUDS. 159 
 
 a question of fact to be determined by the circumstances 
 of the case (/). 
 
 Nor is a promise within the statute unless it is made 
 to the principal creditor: "The statute applies only to pro- 
 mises made to the person to whom another is answer- 
 able " (r/) or is to become so. 
 
 A mere promise of indemnity is not within the sta- 
 tute (//), though any promise which is in substance witliin 
 it cannot be taken out of it by being put in the form of an 
 indemnity (/). 
 
 A contract to give a guaranty at a future time is as much 
 within the statute as the guaranty itself (J) . 
 
 y. "Any agreement made upon consideration of mar- Agree- 
 riage." A promise to marry is not within these words, the "^^'^^^ 
 consideration being not marriage, but the other party's sideration 
 reciprocal promise to marry. For further remarks on the riage. ' 
 effect of this clause see Chapter XII,, on Agreements of 
 Imperfect Obligation, wfra. 
 
 In the old books we frequently meet with another sort 
 of difficulty touching agreements of this kind; it was much 
 doubted whether matrimony were not so purely spiritual a 
 matter that all agreements concerning it must be dealt 
 with only by the ecclesiastical courts : the type of these 
 disputed contracts is a promise by A. to B. to pay B. 10/. if 
 he win marry A.'s daughter. But this by the way (/.). 
 
 (/) See n. (c), supra. had promised 10^. with his daur/htcr 
 
 (ff) Easticood V. Kenyon, 11 A. & in marriage, then it should he in 
 
 E. 438, 446; concess. Cripps v. the Court Christian ; Trin. 45 Ed. 
 
 EartnoU, 4 B. & S. 414, 32 L. J. 3. 24, pi. 30; action good without 
 
 Q. B. 381 (Ex. Ch.). specialty where the marriage had 
 
 {h) Cripps Y. HartnoJl (last note); taken place, Mich. 37 H. 6. 8, pi. 
 
 Wildes V. Budloiv, 19 Ec[. 198. 18 ; contra (not without dissent) 
 
 (e) Cripps \. EartnoU. Trin. 17 Ed. 4. 4, pi. 4. In 
 
 (_;') Mallet v. Bateman, L. R. 1 Bracton's time the exclusive juris- 
 
 C. P. 163 (Ex. Ch.). See further on diction of the spiritual courts ap- 
 
 this clause, 1 Wms. Saund. 229-235, pears to have been admitted : "ad 
 
 1 Sm. L. C. 311, note to Birkmyr v. forum seculare trahi non debet per 
 
 Darnell, Smith, Merc. Law, 456-9 id quod minvis est et non priucipale 
 
 (8th ed.). id quod primum et princijiale est in 
 
 (A-) Such promise may he .sued on foro ecclesiastico, ut si ob causam 
 
 in the King's Court if by deed, 22 matrimonii pecunia promittatur, 
 
 Ass. 101, pi. 70; otherwise if he hcet videatur prima facie quod
 
 IGO FORM OF CONTRACT. 
 
 Interests ^. " Any contract or sale of lands, tenements, or here- 
 in laud. clitaments, or any interest in or concerning them." This 
 clause is usually and conveniently considered as belonging 
 to the topic of Vendors and Purchasers of real estate; and 
 the reader is referred to the well-known works which treat 
 of that subject (A-). Questions have arisen, however, 
 » whether sales of growing crops and the like were sales of 
 an interest in lands within the 4th section or of goods 
 within the 17th ; and these cases are accordingly discussed 
 by Lord Blackburn and Mr. Benjamin in their expositions 
 of the 17th section (/). A sale of tenant's fixtures, being 
 a sale only of the right to sever the fixtures from the free- 
 hold during the term, is not within either section {m). 
 
 Leases. By the 1st and 2nd sections of the statute leases for 
 
 more than three years, or reserving a rent less than two- 
 thirds of the improved value, must be in writing and 
 signed by the parties or their agents authorized in 
 u-riting, and now by 8 & 9 Yict. c. 106, s. 3, they must 
 be made by deed. But an informal lease, though void as 
 a lease, may be good as an agreement for a lease (-v). 
 
 Agree- s. " Any agreement that is not to be performed within 
 
 to^e^ CT* ^^® space of one year from the making thereof." 
 formed " Is not to be," not " is not " or " may not be." This 
 
 means an agreement that on the face of it cannot be per- 
 
 cognitio super catallis et debitis L. R. 6 Ex. 70 ; Erskine v. Adcanc, 
 
 pertineat ad forum secolare, tamen 8 Ch. 756 ; Angell v. JDuJce, L. R. 10 
 
 propter id quod maius est et digniua Q. B. 174. As to the distinction 
 
 trahitur coguitiopecuniacpromissae between a demise and a mere licence 
 
 et debitac ad forum ecclesiasticum, or agreement for the use of land 
 
 et ubi \y ibi]locumnouhabetprohi- ■without any change of possession, 
 
 bitio, cumdebitumsitdetestamento Wells v. Klngston-upon-Hull^ L. R. 
 
 vol matrimouio:" fol. 175 a. It 10 C. P. 402. 
 
 should beremembered that ordinary {I) Blackburn on the Contract of 
 
 debts were still indirectly enforced Sale, 9 — 21, Benjamin on Sale, 
 
 in the spiritual courts by the im- lOG — 122; Marshall v. Green, 1 C. 
 
 position of penance. P. D. 35. And see 1 Wms. Saund. 
 
 (Ic) As to an agreement collateral 395. 
 
 to a demise of land not being within {m) Lee v. Gaskell, 1 Q. B. D. 700. 
 
 the statute, see Morgan v. Griffith, \n) Dart, V. & P. 1, 198. 
 
 within a 
 year
 
 STATUTE OF FRAUDS. 161 
 
 formed 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, is not within this 
 clause (o). Nor is an agreement within it which is com- 
 pletely performed by one party within a year (;)). An 
 agreement is not excluded from the operation of the clause '* 
 by being made determinable on a contingency that may 
 happen within a year (q) . 
 
 The seventeenth section of the statute (sixteenth in the Astos. 17. 
 Revised Statutes, but it will probably keep its accustomed 
 name) (>•) is extended by Lord Tenterden's Act, 9 Greo. 4, 
 c. 14, s. 7, and as so extended includes all executory sales 
 of goods of the value of 10/. and upwards, whether the 
 goods be in existence or not at the time of the contract. 
 Its effect is thoroughly discussed and explained by Lord 
 Blackburn (on the Contract of Sale, 5 — 119) and in Mr. 
 Benjamin's later work (Book 1, Part 2, pp. 87—229). We 
 will here only refer very briefly to the question of what is 
 a sufficient memorandum of a contract within the Statute. 
 Mr. Benjamin exliibits (p. 193, sqq.) the cuiious difference The 
 in the judicial interpretation of the " agreement " of which memoran- 
 a memorandum or note is required by s. 4, and the " bar- ^i^m." 
 gain " of which a note or memorandum is required by 
 s. 17. The " agreement " of s. 4 includes the considera- 
 tion 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 does not. So 
 far as regards guaranties, however, this construction of 
 s. 4 having been found inconvenient is excluded by the 
 Mercantile Law Amendment Act, 1856, 19 & 20 Vict. 
 c. 97, s. 3, which makes it no longer necessary that the 
 
 (o) Smith V. Nealc, 2 C. B. N. S. {q) Eley v. Fositive Assurance Co. 
 
 67, 26 L. J. C. P. 143. 1 Ex. D. 20. " 
 
 (p) C'herri/ V. Ilemiiiff, iYiX. 651, (r) The difference arises from the 
 
 19 L. J. Ex. 63. See notes to Fder preamble and the enacting part of 
 V. Compton, 1 Sm. L. C. 335. s. 13 being separately numbered as 
 
 13 and 14 in former editions. 
 
 P. M
 
 162 FORM OF CONTRACT. 
 
 consideration for a " special promise to answer for the debt 
 default or miscarriage of another person " should appear 
 in writing or by necessary inference from a written docu- 
 ment (s). 
 
 The note or memorandum under the 4th as well as the 
 17th section must show what is the contract and who are 
 the contracting parties (f) , but it need be signed only by 
 the party to be charged, whether under the 4th or the 17th 
 section : it is no answer to an action on a contract evi- 
 denced by the defendant's signature to say that the plain- 
 tiff has not signed and therefore could not be sued, and if 
 a written and duly signed proposal is accepted by word of 
 mouth the contract itself is completed by such acceptance 
 and the writing is a sufficient memorandum of it («) . It 
 has also been decided that an acknowledgment of a signa- 
 ture previously made by way of proposal, the document 
 having been altered in the meantime and the party having 
 assented to the alterations, is equivalent to an actual 
 signature of the document as finally settled and as the 
 record of the concluded contract. The signature con- 
 templated by the statute is not the mere act of writing, but 
 the wi'iting coupled with the party's assent to it as a sig- 
 nature to the contract : and the effect of the parol evidence 
 in such a case is not to alter an agreement made between 
 the parties but to show what the condition of the docu- 
 ment was when it became an agreement between them (x). 
 Moreover it matters not for what purpose the signature is 
 
 (s) See also an article by Mr. London ^- Paris Hotel Co. ib. 412, 
 
 Justice Stephen and the present Jiossitcr v. Miller, 3 App. Ca. 1124, 
 
 writer in the Law Qiiarterly Ee- Catling v. King (C. A.), 5 Ch. D. 
 
 view, Jan. 188o, and the notes to 660. As to what is sufficient de- 
 
 Birhnyr v. Darnell and Wain v. scription of the property sold under 
 
 JFarlters, in Sm. L. C. s. 4, Shardloiv v. Cottcrcll, C. A. 20 
 
 U) JFilliams v. Byrnes, 1 Moo. Ch. D. 90. 
 
 P. 0. N. S. 154, Newellv. Radford, {a) Smith v. Neale, 2 C. B. N, S. 
 
 L. R. 3 C. P. 52, Williams v. Jor- G7, 26 L. J. C. P. 143, Reuss v. 
 
 dan, G Ch. D. 517 ; and as to suffi- Ricksley, in Ex. Ch. L. E. 1 Ex. 
 
 ciency of description otherwise 342. 
 
 than by name, Sale v. Lambert, 18 {x) Stctvart v. Eddotues, L. R. 9 
 
 Eq. 1, Potter V. Puffield, ib. 4, Com- C. P. 311. 
 mi7is V. Scott, 20 Eq. 11, Beer v.
 
 STATUTE OF FRAUDS, 163 
 
 added, since it is required only as evidence, not as belong- 
 ing to the siiljstance of the contract. It is enough that 
 the signature attests the document as that which contains 
 the terms of the contract {y). Nor need the particulars 
 required to make a complete memorandum be all con- 
 tained in one document : the signed docimient may in- 
 corporate others by reference, but the reference must 
 appear from the writing itself and not have to be made out 
 by oral evidence : for in that case there would bo no record 
 of a contract in writing, but only disjointed parts of a 
 record pieced out with unwritten evidence [z). One who 
 is the agent of one party only in the transaction may bo 
 also the agent of the other party for the purpose of signa- 
 ture {a). There is considerable authority (though short 
 of an actual decision) for holding that the Statute of ^emhu. 
 Frauds does not apply to deeds. Signature is unnecessary -within the 
 for the validity of a deed at common law, and it is not ^*'^t^t<^- 
 likely that the legislature meant to require signature 
 where the higher and more formal solemnity of sealing (as 
 it is in a legal point of view) is already present {h). But 
 as in practice deeds are always signed as well as sealed, 
 and distinctive seals are hardly ever used except by 
 corporations, the absence of a signatm-e would nowadays 
 add considerably to the difficulty of supporting a deed im- 
 peached on any other ground. 
 
 The law as to the sale and disposition of personal chattels Bills of 
 is affected, in addition to the Statute of Frauds, by the ^""^^ ^''*'* 
 Bills of Sale Acts, 1878 and 1882, 41 & 42 Yict. c. 31, 
 
 (y) Jones V. Victoria Graving Bock Hieroninius, L. R. 10 Q. B. 140. 
 Co. 2 Q. B. D. 314, 323. It maybe (a) As to this, Mmyhy v. Boese, 
 
 doubted whether this view of the L. E. 10 Ex. 12G. 
 statute does not tend to thrust con- {h) Cherry v. Heming, 4 Ex. 631, 
 
 tracts upon parties by surprise and 19 L. J. Ex.631. Blackstone (2. 
 
 contrary to their real intention. 306, and see note in Stephen's 
 
 (s) See Bcirce v. Corf, L. R. 9 Q. Comm., 1. 510, 6th ed.) assumed 
 
 B. 210, Kronheim v. Johnson, 7 signature to be necessary. 
 Ch. D. CO, Beather Cloth Co. v. 
 
 m2
 
 164 
 
 FORM OF CONTRACT. 
 
 45 & 46 Vict. c. 43 : but the subject is too special to be 
 entered on here. 
 
 Transfers 
 of ships 
 and copy- 
 right. 
 
 Transfers of British ships are required by the Merchant 
 Shipping Act, 1854 (s. 55 sqq.) to be in the form thereby 
 prescribed. Assignments of copyright are directly or 
 indirectly required by the various statutes on that subject 
 to be in writing (c), and in the case of sculpture by deed 
 attested by two witnesses (54 Geo. 3, c. 56, s. 4). But an 
 executory agreement for an assignment of copyright 
 apparently need not be in writing. And informal executory 
 agreements for the sale or mortgage of ships seem now to 
 be valid as between the parties, though under earlier Acts 
 it was otherwise, and it is doubtful whether at common law 
 a sale without writing would pass the property {d). 
 
 Sale of 
 horses in 
 market 
 overt. 
 
 There is " An Act to avoid Horse-stealing " of 31 Eliz. 
 c. 12, which prescribes sundry forms and conditions to be 
 observed on sales of horses at fairs and markets : and 
 " every sale gift exchange or other putting away of any 
 horse mare gelding colt or filly, in fair or market not used 
 in all points according to the true meaning aforesaid shall 
 be void." The earlier Act on the same subject, 2 & 3 Phil. 
 & Mary, c. 7, only deprives the buyer of the benefit of the 
 peculiar rule of the common law touching sales in market 
 overt. These statutes are believed to be in practice 
 inoperative. 
 
 Marino 
 Insurance. 
 
 B. Marine Insm-ances. 
 
 By 30 Vict. c. 23, s. 7, marine insurances must (with the 
 exception of insm'anees against owner's liability for certain 
 accidents) be expressed in a policy. 
 
 (r) Leyland v. Stewart, 4 Ch. D. 
 419, and as to designs Jewitt v. 
 Eclchardt, 8 Ch. D. 404. 
 
 {cl) Maude and Pollock on Mer- 
 chant Shipping, 4th cd. pp. 42, 55, 
 56. And see the Amendment Act 
 of 1862, 25 & 26 Vict. c. G3, s. 3.
 
 STATUTORY FORMS. 165 
 
 But the words arc not so strict as tliose of the repealed 
 statutes on the same subject, and the preliminary " slip," 
 which in practice though not in law is treated as the real 
 contract, has for many purposes been recognized by recent 
 decisions. These will be spoken of in another place under 
 the head of Agreements of Imperfect Obligation (Chap. 
 XII). 
 
 0. Transfer of Shares. Transfer 
 
 of Snares. 
 There is no general principle or provision applicable to 
 
 the transfer of shares in all companies. But the general 
 or special Acts of Parliament governing classes of com- 
 panies or particular companies always or almost always 
 prescribe forms of transfer. 
 
 In cost-book mining companies it seems that no par- 
 ticular form is needed, and an executory contract for the 
 sale of shares need not as a rule be in writing. It would 
 be useless to enter here into details : the reader will 
 find full information in Lord Justice Lindley's treatise, 
 1. 703 sqq. 
 
 Assuming joint-stock partnerships with transferable 
 shares to be lawful at common law (which is the better 
 opinion) their shares should be transferable without 
 writing in the absence of agreement to the contrary. But 
 for reasons elsewhere given this is now of no practical 
 importance. 
 
 I). Acknowledgment of barred debts. Promise to 
 
 ... P^y debt 
 
 The operation of the Statute of Limitation, 21 Jac. 1, barred by 
 c. 16, in taking away the remedy for a debt may be excluded Lunita- 
 by a subsequent promise to pay it, or an acknowledgment tion. 
 from which such promise can be implied. The promise or 
 acknowledgment if express must be in writing and signed 
 by the debtor (9 Greo. 4, c. 14, s. 1) or his agent duly 
 authorized (19 & 20 Vict. c. 97, s. 13). The subject calls 
 for mention here, especially as the promise or acknowledg-
 
 166 FORM OF CONTRACT. 
 
 nient is for some purposes a new contract. But we say 
 
 more of it under tlie head of Agreements of Imperfect 
 
 Obligation, Ch. XII. below. 
 
 Foreign A sbort account of some of the foreign laws which 
 
 logouJ^t'o' correspond more or less closely to our Statute of Frauds 
 
 Stat, of is given in the Appendix (Note E.).
 
 ( 167 ) 
 
 CHAPTER IV. 
 
 Consideration. 
 
 The following description of Consideration was given by Considora- 
 the Excliequer Chamber in 1875 : "A valuable considera- ti°°'^^^*- 
 tion, in tbe sense of the law, may consist either in some 
 right, interest, profit, or benefit accruing to the one party, 
 or some forbearance, detriment, loss, or responsibility, 
 given, suffered, or undertaken by the other " {a). 
 
 The second branch of this judicial description is really 
 the more important one. Consideration means not so 
 much that one party is profited as that the other abandons 
 some legal right in the present, or limits his legal freedom 
 of action in the futiu-e, as an inducement for the act or 
 promise of the first. It does not matter whether the party 
 accepting the consideration has any actual benefit thereby 
 or not : it is enough that he accepts it, and that the party 
 giving it does thereby undertake some biu'den, or lose 
 something which in contemplation of law may be of value. 
 
 An act or forbearance of the one party, present or 
 promised, is the price for which the promise of the other 
 is bought, and the promise thus given for value is enforce- 
 able. 
 
 In the phrase of our mediaeval books — a phrase which 
 appears to be peculiar to English usage (b) — there must 
 be quid 2))'0 quo. But when the quid is once established, 
 
 {a) Cnrrie v. Misa, L. R. 10 Ex. Board v. Harrow Gas Co. L. R. 10 
 
 at p. 162, per Ciu-. refeiTing to Q. B. 92, 95; and the definitions of 
 
 Com. Dig. Action on the Case, the I. C. A. in Note A, ui the Ap- 
 
 Assumpsit B. I — 15. Cp. Evans, pendix below. 
 
 Appendix to Pothier on Obliga- {b) Ducange knows it only as au 
 
 tions, No. 2, and Edgware Hlghicay English term.
 
 168 
 
 CONSIDERATION , 
 
 Gratui- 
 tous 
 promises. 
 
 Fluctua- 
 tions in the 
 doctrine. 
 
 Pillans V. 
 Van 
 
 Mierop. 
 
 the quantum is for the judgment of the parties themselves. 
 The law will be satisfied that there is a real and lawful 
 bargain, but it leaves parties to measure their bargains for 
 themselves. In some cases, no doubt, the rule is strained 
 either way. Both as to what is and as to what is not 
 consideration it is possible to bring together illustrations 
 which make the law seem irrational. These matters must 
 be considered presently. The main idea of the law, how- 
 ever, is quite intelligible and reasonable in its ordinary 
 application . 
 
 An informal and gratuitous promise, however strong 
 may be the motives or even the moral duty on which it is 
 founded, is not enforced by English coiu'ts of justice at 
 all. Even a formal promise, that is a promise made by 
 deed, or in the proper technical language a covenant, is 
 deprived, if gratuitous, of some of their most effectual 
 remedies. 
 
 The early history of the law of Consideration is sin- 
 gularly obscure, both as to its origin and as to the 
 manner in which it was developed {b) : and it was a long 
 and gradual process, even in modern times, to settle the 
 doctrine in all points as we now have it. A curious 
 illustration of the extent to which it was left open as 
 late as the last century is furnished by Pillans v. Va)i 
 Mierop (c). The actual decision was on the very sound 
 principle (characteristic, as we shall see, of our law) 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 rmdertaking " (r/). But Lord Mansfield threw 
 out the suggestion (which Wihnot, J. showed himself 
 inclined to follow, though not wholly committing him- 
 self to it) that there is no reason why agreements in writing, 
 at all events in commercial affair's, should not be good 
 
 {b) The historical discussion 
 ■which formerly stood here in the 
 text is now transferred to the Ap- 
 
 pendix. Sec Note F. 
 
 (c) 3 Burr. 1664. (A.D. 1765.) 
 {(l) Per Yates, J. at p. 1674.
 
 PAST CONSIDERATION. 169 
 
 without any consideration. "A niiduHi pactum does not 
 exist in tlie usage and law of mcrcliants. I take it that 
 the ancient notion about tlie want of consideration was for 
 the sake of evidence only ... in commercial cases 
 amongst merchants the want of consideration is not an 
 objection " (e). It is true that this was and has remained 
 a solitary dictum barren of results ; its anomalous cha- 
 racter was rightly seen at the time and it has never been 
 followed (/') ; but the fact that such an opinion could be 
 expressed at all from the bench is sufficiently striking. 
 This suggestion of setting up a new class of Formal Con- 
 tracts (for such would have been the effect) came, as it 
 was, too late to have any practical influence. But if it had 
 occurred a century or two earlier to a judge of anything 
 like Lord Mansfield's authority, the whole modern de- 
 velopment of the English law of contract might have been 
 changed, and its principles might have been (-with only 
 minute theoretical differences) assimilated to those of the 
 law of Scotland. 
 
 Another point of great importance remained open even Promises 
 in practice down to a much later time. The anomalous o°"^oral 
 doctrine that the existence of a previous moral obligation <i"ty : 
 is enough to support an express promise was held by binding 
 eminent judges a few generations back, and was overruled ^^ , 
 only in 1840 by the decision of the Exchequer Chamber v.Kenjon. 
 that " a mere moral obligation arising from a past benefit 
 not conferred at the request of the defendant " is not a 
 good consideration (g) . A question still not free from un- ^,^^^ con- 
 certainty is whether a past benefit is in any case a good ineffec- 
 tual. 
 
 (e) 3 Burr. 1G69 — 70. tain, as conti'acts in writing." 
 
 (/) In 1778 it was distinctly con- Prof. Langdell ingeniously argues 
 
 tradicted by the opinion of the (Summary, ^§ 49, 50) that contracts 
 
 Judges delivered to the House of governed by the law merchant 
 
 Lords in Jteom v. Hughes, 7 T. E,. ought on principle to need no con- 
 
 350, n : "All contracts are, by the sideration ; but his argument is, as 
 
 laws of England, distinguished he himself admits, against the 
 
 into agreements by specialty and whole current of authority and 
 
 agreements by parol ; nor is there opinion for at least a century, 
 any such third class, as some of the ($i) Eastwood v. Kenijoi, 1 1 A. & 
 
 counsel have endeavoured to main- f]. 438, 44C.
 
 170 
 
 CONSIDERATION. 
 
 Supposed 
 
 excex^- 
 
 tions : 
 
 Lamp- 
 
 leigli V. 
 
 Brath- 
 
 wait. 
 
 Perform- 
 ance of 
 another's 
 legal duty. 
 
 Acknow- 
 ledgment 
 of baiTed 
 debts. 
 
 consideration for a subsequent promise. On principle it 
 should not be (//) . For the past service was either rendered 
 without the promisor's consent at the time, or with his 
 consent but without any intention of claiming a reward as 
 of right, in neither of which cases is there any foundation 
 for a contract (?) ; or it was rendered with the promisor's 
 consent and with an expectation known to him of reward 
 as justly due, in which case there were at once all the 
 elements of an agreement for reasonable reward. It is 
 said, however, that services rendered on request, no definite 
 promise of reward being made at the time, are a good con- 
 sideration 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 
 evidence of what the parties thought the service worth (/i) . 
 It is also said that the voluntary doing by one party of 
 something which the other was legally bound to do is a 
 good consideration for a subsequent promise of recompense. 
 But the authority for this proposition is likewise found to 
 be unsatisfactory. Not 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 suffi- 
 cient consideration, appear to rest on facts establishing 
 an actual tacit contract independent of any subsequent 
 promise. 
 
 Another exceptional or apparently exceptional case 
 which certainly exists is that of a debt barred by the 
 
 (//) Cp. Langdcll, op. cit. ^ 91. 
 
 (<) "It is not reasonable that one 
 man should do another a kindness, 
 and then charge him with a recom- 
 pense." 1 Wms. Saund. 356. 
 
 (/u) Lamphifjhs.Jirathwait, Hob. 
 105, and 1 Sm. L. C. ; see 7>(«- Erie, 
 C. J., 13 C. B. N. S. at p. 740. 
 The case of Bradford v. lioulstuii, 
 decided by the Irish Court of Ex- 
 chequer in 1858, will, for English 
 lawyers at least, hardly outweigh 
 this dictum. At an earlier time 
 
 there was a difference between debt 
 and assumpsit in this respect : it 
 was held that a past consideration 
 would not support an action of debt, 
 but (on the theory that in assump- 
 sit the contractual relation of the 
 parties was not the cause of action, 
 but only a sort of inducement of it) 
 that it was enough for assumpsit. 
 ]\[arsh V. Eainsford, 2 Leon. Ill, 
 Sidenham v. IVorliugton, ib. 224 ; 
 O. W. Holmes, The Common Law, 
 286, 297.
 
 PAST CONSIDERATION. 171 
 
 Statute of Limitation, on which the remedy may be 
 restored by a new promise on the debtor's part. The 
 theory is that the legal remedy is lost but the debt is not 
 destroyed, and the debt subsisting in this dormant condi- 
 tion is a good consideration for a new promise to pay it. 
 This is not logically satisfying, for obviously 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 would be 
 better to say at once 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 (/) . 
 
 Historically the truth of the matter seems to be that 
 suitors and judges have made attempts in various direc- 
 tions to strain legal principle for the purpose of making 
 people fulfil promises or pay for services which could not 
 easily be said to have been really contracted for, but which 
 also represented benefits they were never intended to have 
 for nothing. These attempts were in part favoured by 
 the confused and fictitious manner in which all quasi- 
 contractual transactions were treated ; request, considera- 
 tion, and promise having become, instead of the names of 
 real facts, counters for pleaders to play with. In many 
 cases the enterprise failed, in some it succeeded. The 
 residue of successes appears in a few anomalous rules still 
 laid down by the text- writers {m). 
 
 The Indian Contract Act (s. 25) (») has not only pre- 
 
 {l ) See more on this point in tion between parties standing in a 
 
 Ch. XII. near relation to each other ; or nn- 
 
 {m) This topic is excellently dis- less 
 
 cussed by Sir W. R. Anson (Prin- (2) It is a promise to compensate, 
 
 ciples of the English Law of Con- wholly or in part, a person who has 
 
 tract, 91 — 98). already Yoluntarily done something 
 
 (h) An agreement made without for the promisor, or something 
 
 consideration is void, unless which the promisor was legally 
 
 (1) It is expressed in writing and compellable to do ; or unless 
 
 registered under the law for the (3) It is a promise made in 
 
 time being in force for the registra- writing, and signed by the person 
 
 tion of assurances, and is made on to be charged therewith, or by his 
 
 account of natural love and afiec- agent generally or specially au-
 
 172 
 
 CONSIDEKATION. 
 
 Adequacy 
 of con- 
 sideration 
 not in- 
 quired 
 into. 
 
 served but extended the rules of English law as to the 
 validity of promises to give a recompense for benefits 
 already received. But it has rightly discarded the fiction 
 of a past consideration, and treats these rules as positive 
 exceptions to the principle that an agreement made with- 
 out consideration is void. It keeps, however, the doubt- 
 ful doctrine that a consideration executed on actual re- 
 quest will support a subsequent express promise (s. 2, 
 subs. d). 
 
 Throughout our authorities it is treated as an "elemen- 
 tary principle that the law will not enter into an inquuy 
 as to the adequacy of the consideration " (o). The idea is 
 characteristic not only in English positive law but in the 
 English school of theoretical jurisprudence and politics, 
 Hobbes saj^s : " The value of all things contracted for is 
 measui'ed by the appetite of the contractors, and therefore 
 the just value is that which they be contented to give" [p). 
 And the legal rule is of long standing, and illustrated by 
 many cases. " When a thing is to be done by the plain- 
 tiff, be it never so small, this is a sufficient consideration to 
 ground an action" {q). "A. is possessed of Blackacre, to 
 which B. has no manner of right, and A. desires B. to 
 release him all his right to Blackacre, and promises him in 
 consideration thereof to pay him so much money ; surely 
 this is a good consideration and a good promise, for it puts 
 B. to the trouble of making a release " (>■). The following 
 are modern examples. If a man who owns two boilers 
 allows another to weigh them, this is a good consideration 
 for that other's promise to give them up after such weigh- 
 ing in as good condition as before. " The defendant " 
 said Lord Denman " had some reason for wishing to weigh 
 
 thorizcd in that behalf, to pay 
 wholly or in part a debt of which 
 the creditor might have enforced 
 payment but for the law for the 
 limitation of suits. 
 
 In any of these cases, such an 
 aerreement is a contract. 
 
 [o) Westlake v. Adams, 5 C. B. 
 N. S. 248, 265, 24 L. J. C. P. 271, 
 per Byles, J. 
 
 {p) Leviathan, pt. 1, c. 15. 
 
 {q) StKrhjn v. Albany, Cro. Eliz. 
 67, and see Cro. Car. 70, and mar- 
 ginal references there. 
 
 (r) Holt, C. J. 12 Mod. 459.
 
 AMOUNT IMMATERIAL. 173 
 
 the boilers, and lie could do so only by obtaining permis- 
 sion from the plaintiff, which he did obtain by promising 
 to rctiiru them in good condition. We need not inquire 
 what benefit he expected to derive " (.s). So parting with 
 the possession of a document, though it had not the value 
 the parties supposed it to have (/), and the execution of a 
 deed (ii), though invalid for want of statutory requisites (x), 
 have been held good considerations. In the last-mentioned 
 case the justice of the decision was very plain : the deed 
 was an apprenticeship indenture which omitted to set forth 
 particulars required by the statute of Anne then in force (//) : 
 the apprentice had in fact served his time, so that the 
 benefit of the consideration had been fully enjoyed. In 
 like manner a licence by a patentee to use the patented 
 invention is a good consideration though the patent should 
 tm-n out to be invalid (::). In the Supreme Court of the 
 United States a release of a supposed right of dower, which 
 the parties thought necessary to confirm a title, has been 
 held a good consideration for a promissory note («). The 
 modern theory of the obligation incurred by a bailee who 
 has no reward is that the bailor's delivery of possession is 
 the consideraiion for the bailee's promise to keep or carry 
 safely. The bailor parts with the present legal control of 
 the goods ; and this is so far a detriment to him, though it 
 may be no benefit to the bailee, and the bailee's taking the 
 goods is for the bailor's use and convenience (b) . Decided Same ride 
 cases in equity to the same effect are not wanting. It has ^^ ^^^^ ^' 
 been held that a transfer of railway shares on which nothing 
 
 (s) Bainbriclge v. Firmstone, 8 A. (//) 8 Ann. c. 5 (9 in Ruffh.) rep. 
 
 & E. 743. Inland Revenue Repeal Act, 1870, 
 
 (C) Haigh v. Brooks (Q. B. and 33 & 34 Vict. c. 99. See now the 
 
 Ex. Ch.), 10 A. & E. 309, 320, 334. Stamp Act, 1870, 33 & 34 Vict. c. 
 
 Or letting the promisor retain pos- 97, s. 40. 
 
 session of a document to which the (~) Lawes v. Ftirser, 26 L. J. 
 
 promisee is entitled: Hart v. Miles, Q. B. 25. 
 
 4 C. B.N. S. 371, 27 L. J. C. P. («) Si/kesY.Chadivic/c, ISWoRace, 
 
 218. 141. 
 
 {u) Cp. Jones v. TTaite, 9 CI. & (b) O. W. Holmes, The Common 
 
 E. 101. Law, 291 sqq. Historically the 
 
 (.)■) See note (o), p. 172. explanation is different, ib. 196.
 
 174 CONSIDERATION. 
 
 has been paid is a good consideration (c) ; and that if a 
 person indebted to a testator's estate pays the probate 
 and legacy duty on the amount of the debt, this is a good 
 consideration for a release of the debt by the residuary 
 legatees {d) : a strong case, for this view was an after- 
 thought to support a transaction which was in origin and 
 intention certainly gratuitous, and in substance an incom- 
 plete voluntary release ; the payment was simply by way 
 of indemnity, it being thought not right that the debtor 
 should both take his debt out of the estate and leave the 
 estate to pay duty on it. The consent of liquidators in a 
 voluntary winding-up to a transfer of shares is a good con- 
 sideration for a guaranty by the transferor for the payment 
 of the calls to become due from the transferee (e). An 
 agreement to continue — i. e. not to determine immediately 
 — an existing service terminable at will, is likewise a good 
 consideration (/). The principle of all these cases may be 
 summed up in the statement made in so many words by 
 the judges in more than one of them, that the promisor 
 has got all that he bargained for. There has been another 
 rather peculiar case in equity which was to this effect. An 
 agreement is made between a creditor, principal debtor, 
 and surety under a continuing guaranty, by which no new 
 undertaking is imposed on the surety, but additional 
 remedies are given to the creditor, which he is to enforce 
 if requested to do so by the surety. Held that if by his 
 own negligence the creditor deprives himself of the benefit 
 of these remedies, the surety is discharged. The real 
 meaning of what is there said about consideration seems 
 to bo that, as between the creditor and the surety, it is not 
 Contin- material {{/). It has been suggested that on a similar 
 
 gent con- 
 
 Bideration. ^c) Chcalev. Ke!mard,Z'Do G. & 518. 
 
 J. 27. • {[/) Watso)iv.AUcocIc,iI).'M.G. 
 
 (d) Taylor v. Manners, 1 Ch. 48, 242. Tho guaranty was deter- 
 by Turner, L. J. dub. Knight Bruce minable by notice from the surety, 
 L . J . and it was suggested by way of sup - 
 
 (e) Cleve v. Financial Corporation, plying a new consideration that on 
 IG Eq. 363, 375. the faith of tho creditor's increased 
 
 (/) Gravely v. Barnard, 18 Eq. remedy tho surety might in fact
 
 MUTUAL PROMISES. 175 
 
 principle the consideration for a promise may be contin- 
 gent, that is, it may consist in the doing of something by 
 the promisee which he need not do unless he chooses, but 
 which, being done by him, the contract is complete and 
 the promise binding. But no such doctrine is necessary. 
 If a tradesman agrees to supply on certain terms such 
 goods as a customer may order during a future period, the 
 better opinion is that tliis is not a promise, but an offer. 
 lie cannot sue the customer for not ordering any goods, 
 but if the customer does order any the condition of 
 the oifer is fulfilled, and the offer being thus accepted, 
 there is a complete contract which the seller is bound to 
 perform (A). 
 
 Inadequacy of consideration coupled with other things Inade- 
 may however be of great importance as evidence of fraud 'flj^^JtUnqs 
 or the like, when the validity of a contract is in dispute : inEqmty: 
 and it has been considered (though the better opinion is xi. 
 otherwise) to be of itself sufficient ground for refusing 
 specific performance. This subject will be examined under 
 the head of Undue Influence, Ch. XI., post. 
 
 Beciprocal promises may be, and in practice constantly Eeciprocal 
 are, the consideration for one another, and so constitute a "^1^1^^^ 
 binding contract. It is said that in order to be a good sideration. 
 consideration a promise must be a promise to do something possible : 
 which the promisor has the means of performing ; but this i"- c-'^j^ent 
 proposition, though affirmed by an authority little short of 
 judicial (/), is unwarrantably wide. The true limitation, it 
 is submitted, is that the thing promised must be in itself 
 possible, and such as the promisor is legally competent to 
 perform ; this last point is what the cases cited for the 
 
 have abstained from determining (4 Hand) 240, where it -was rightly 
 
 it. But surely this will not do : hold that a general assent to an 
 
 the time ground is the creditor's offer of this loud (not undertaking 
 
 original duty to the surety, which to order, or as in the particular 
 
 covers subsequently acquired rights case tender to be carried, any de- 
 
 and remedies. finite quantity of goods) did not of 
 
 {h) G. N. By. Co. v. Witham, itself constitute a contract. 
 L. R. 9 C. P. 16. Cp. Chicago ^- [i) 2 Wms. Saund. 430. 
 
 G. E. R7J. Co. V. T)ane, 43 N. Y.
 
 176 
 
 CONSIDERATION. 
 
 Must be 
 enforce- 
 able. 
 
 Must not 
 be of a 
 thing one 
 is already- 
 bound 
 (jsncralhj 
 or to the 
 promisee 
 to do. 
 
 general statement really go to show, thougli certainly there 
 are some dicta much more largely expressed (/.•). In this 
 form the proposition is completely covered by the general 
 law touching impossible and unlawful agreements, and we 
 know of nothing that requires us to lay down any wider 
 rule as part of the distinct learning of consideration. There 
 is certainly no general rule that a promise cannot be sued 
 on unless the promisor had in fact the means of performing 
 it when he made it ; and if we said that the undertaking 
 of a legal liability is not to be deemed a consideration 
 unless the liability be substantial, we should be setting up 
 in another shape the often exploded supposition that the 
 adequacy of the consideration can be inquired into. 
 
 It is certain however that a promise which is to be a 
 good consideration for a reciprocal promise must be such as 
 can be enforced ; it must therefore be not only lawful and 
 in itself possible, 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 (/). And upon a conveyance 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 (m). 
 
 For the same reason, 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 
 
 {k) Haslamv. iSherivood, 10 Biug. 
 540, Xcrot V. Wallace, 3 T. R. 17, 
 where the dicta of Lord Iveuyon, 
 C. J. and Aslihurst, J. arc those 
 meant in the text. Buller and 
 Grose, J J. confined their judgments 
 to the true ground of the case, viz. 
 that the agreement then in question 
 was i7%«/ asbeing against the policy 
 of the bankrupt laws. 
 
 (l) White V. Bluett, 23 L. J. Ex. 
 36 : this seems the ratio decidendi, 
 thoiigh so expressed only by Parke, 
 B. who asked in the course of argu- 
 ment, " Is an agreement by a father 
 in consideration that his son will 
 not bore him a binding contract ? ' ' 
 
 (wf) Itosher v. Williams, 20 Eq. 
 210.
 
 PROMISES TO PERFORM EXISTING DUTY. 177 
 
 party (n) . It is obvious that an express promise by A. to B. 
 to do something Avhich B. can abeady call on him to do can 
 in contemplation of law produce no fresh advantage to B, 
 or detriment to A. But the doing or undertaking of any- 
 thing beyond what one is already bound to do, though of 
 the same kind and in the same transaction, is a good con- 
 sideration. A promise of reward to a constable for render- 
 ing services beyond his ordinary duty in the discovery of 
 an offender is binding (o) : 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 that the crew are not bound to proceed 
 under their original articles (p). Again there will be con- 
 sideration 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 reduc- 
 tion of interest on punctual payment — i. e., payment at the 
 very time at which the mortgagor has covenanted to pay 
 it — seems to be without any consideration, and it is con- 
 ceived that if not under seal such a proviso could not be 
 enforced {q) . Again the rule does not apply if the promise 
 is in the nature of a compromise, that is if a reasonable 
 doubt exists at the time whether the thing promised be 
 already otherwise due or not, though it should be afterwards 
 ascertained that it was so. The reason of this will be more 
 conveniently explained, so far as it needs ex^^lanation, 
 when we speak presently of forbearance as a consideration. 
 
 («) See Leake, 618 ; and, besides {p) Hartley v. Fo/isoub;/, 7 E. & 
 
 authorities there given, Deacon v. B. 872, 26 L. J. Q. B. 322. 
 
 Gridlei/, loG.B. 295, 24 L. J. C. P. (q) This could be at once pro- 
 
 17, and the judgment on the 7th vided against, however, if so 
 
 plea in MaUaVieu v. Hodgson, 16 desired, by fixing the times for 
 
 Q. B. G89, 20 L. J. Q. B. 339. " punctual payment " a single day 
 
 (o) England y. Davidson, 11 A. ifc earlier than those named in the 
 
 E. 856. mortgagor's covenant. 
 
 P. ^
 
 178 
 
 CONSIDERATION. 
 
 Promise 
 of a thinj 
 one is 
 bound to 
 a third 
 person to 
 do. 
 
 Shadwell 
 v. Shad- 
 well. 
 
 In the case where the party is already bound to do the 
 same thing, but only by contract with a third person, there 
 is some difference of opinion. The new promise pm'ports 
 to create a new and distinct right, which, if really created, 
 must always be of some value in law, and may be of 
 appreciable value in fact. B. may well be much interested 
 in A.'s performing his contract with C, but yet so that the 
 circumstances which give him an interest in fact do not 
 give him any interest which he can assert in law. The 
 power to claim A.'s performance in his own right will then 
 be valuable to him, and why may he not entitle himself to 
 it by contract, and bind himself to pay for it? This 
 opinion has been expressed and acted on in the Court of 
 Exchequer (r), and seems implied in the judgment of the 
 majority of the Court of Common Pleas in a case decided 
 some weeks earlier (s), which affords a cm^ious modern 
 example of a class of agreements already mentioned as 
 having in former times given rise to much litigation and 
 even to conflicts of jurisdiction. An uncle wrote to his 
 nephew in these terms : "I am glad to hear of your in- 
 tended marriage with E. N. ; and as I promised to help 
 you at starting I am happy to tell you that I will pay to 
 you one hundred and fifty pounds yearly during my life," 
 subject to a contingency not material to be now stated. 
 The marriage took place, and for several years this annuity 
 was paid ; after which it fell into arrear, the uncle died, 
 and the nephew sued his executors. It was pleaded 
 amongst other things that the marriage was not at the 
 testator's request and that there was no consideration for 
 the promise. Erie, C. J. and Keating, J. held (but with- 
 out saying in terms that the existence of the engagement 
 to marry at the date of the uncle's promise could make no 
 difference) that on the whole the marriage must be taken 
 to have been at the testator's request, and so was a suffi- 
 
 (r) Scotson v. Pcf/g, G H. &^N. 
 295, 30 L. J. Ex. 225. 
 
 (.v) Shadwell V. Shadwcll, 9 C. B. 
 N. S. 159, 30 L. J. C. P. 145. Scd 
 Qit. as to the decision on the facts.
 
 PROMISE TO PERFORM COXTRAC'T WTTTI THIRD PERSON. 179 
 
 cient consideration. Bylcs, J. dissented, thinking tliat as 
 no express request appeared, so none could Le implied, for 
 the nephew was already bound to tlio marriage and the 
 uncle knew it : he stated the rule to be that a promise to 
 do what one is already bound, thougli only to a tliird per- 
 son, to do, cannot be a consideration {f) ; and he seemed 
 disposed to treat it as a matter of public policy. 
 
 The reasoning of these cases assumes that a promise to 
 A. to perform an existing duty to B. is itself enforceable 
 by A., which is not clear on principle, and has not been 
 directly decided. Perhaps the best explanation is that the 
 promise to perform an existing contract with B. is to be 
 read as being or including a promise not to exercise the 
 right of rescinding it with B.'s consent (u). 
 
 The doctrine of Consideration has been extended with Rules as 
 not very happy results beyond its proper scope, which is sideration 
 to govern the formation of contracts, and has been made ^^*f^'^^,'? 
 to regulate and restrain the discharge of contracts. For charge of 
 example, where there is a contract of hiring with a stipula- ^°^*^''^°*^- 
 tion that the wages due shall be forfeited ia.the event of 
 the servant being di'unk, a promise not under seal to pay 
 the wages notwithstanding a forfeiture is not binding 
 Avithout a new consideration (.r). It is the rule of English 
 law that a debt of 100/. may be perfectly well discharged 
 by the creditor's acceptance of a beaver hat or a pepper- 
 corn, or of a negotiable instrument for a less sum (//), at the 
 same time and place at which the 100/. are payable, or 
 of ten shillings at an earlier day or at another place, but 
 that nothing less than a release under seal will make his 
 acceptance of 99/. in money at the same time and place a 
 good discharge (::) : although modern decisions have con- 
 
 {t) And so thought some of the rectly enforced, 
 
 judges in Jo)7es v. TFaitr, 5 Biug. (n) Anson, p. 87. 
 
 N. C. 341,351,356. But the actual (,c) 2Ionkman v. Shepherdion, II 
 
 decision there \ib. 9 CI. & F. 101) A. & E. 411. 
 
 would be a clear authority the other (//) Goddard v. f/Brien, 9 Q. B. 
 
 way, had it not been assumed at the D. 37. 
 
 time that an agreement to execute {z) PumeVs ca. 5 Co. Rep. 117, 
 
 a separation deed could not be di- confirmed with reluctance by the 
 
 N 2
 
 180 
 
 CONSIDERATION. 
 
 The con- 
 sideration 
 for varia- 
 tion of 
 contracts. 
 
 Loss or 
 forbear- 
 ance of 
 rights as 
 considera- 
 tion. 
 
 fined this absurdity within the narrowest possible limits («) . 
 A judgment creditor agreed in ■svaiting with the debtor to 
 take no proceedings on the judgment in consideration of 
 immediate pa^nnent of part of the debt and payment of 
 the residue by certain instalments ; here there was no legal 
 consideration for the creditor's promise, and he was entitled 
 to claim interest on the debt though the whole of the 
 principal was paid according to the agreement (b). 
 
 If it is agreed between creditor and debtor that the 
 duty shall be performed in some particular way different 
 from that originally intended, this may well be binding : 
 for the creditor's undertaking to do sometliing 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 agree- 
 ment 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 considera- 
 tion : as where an entire sum is due, and there is an agree- 
 ment to accept payment by instalments, 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 in- 
 dulgence, and the creditor remains no less at liberty to 
 demand the whole sum than the debtor is to pay it (c) . 
 
 The loss or abandonment of any right, or the forbearance 
 to exercise it for a definite or ascertainable time, is for 
 obvious reasons as good a consideration as actually doing 
 
 House of Lords in FoaJces v. Beer, 
 9 App. Ca. 605, Lord Blackburn all 
 but dissenting-. The Indian Con- 
 tract Act (s. 63, iUust. b) is ac- 
 cordingly careful to express the 
 contrary. The rule in FinneVs case, 
 it may be noted, though paradoxi- 
 cal, is not anomalous. It is the 
 strictly logical result of carrying 
 
 out a general principle beyond the 
 bounds Tcithin wliich it is reason- 
 ably applicable. 
 
 {a) See the Xotes to Camber v. 
 Wane in 1 Sm. L. C. 
 
 (i) Foakes v. Beer, supra. 
 
 [c) McMantis v. Bark, L. R. 5 
 Ex. 65. Cp. Foakes V. Beer, supra.
 
 FORBEARANCE. 181 
 
 something. In Mnthov v. Lord Maidstone {d ) the loss of 
 collateral rig-lits by the promisee supported a promise not- 
 withstanding that the main part of the consideration failed. 
 The action was on a bill of exchange. This bill was given 
 and indorsed to the plaintiff as in renewal of another bill 
 purporting to be accepted by the defendant and indorsed 
 to the plaintiff. The plaintiff gave up this first 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 (jonsideration enough. 
 
 As to forbearance, the commonest case of this kind of Forbear- 
 consideration is forbearing to sue. The forbearance or ^^^\ ^^g^ 
 promise of it must be, as we said, for a definite or ascer- be for 
 tainable time in order to be a good consideration. For- ascertain- 
 bearauce for a reasonable time is enough, for it can be ^^^^ *™°- 
 ascertained as a question of fact what is a reasonable time 
 in any given case : and an undertaking in 'terms which 
 are in themselves vague, such as " forbearing to press for 
 immediate payment," may be construed by help of the 
 circimistances and context as meaning forbearance for a 
 reasonable time {e). 
 
 That which is forborne must also be the exercise or There 
 enforcement of some legal or equitable right which is at ™tuai or ^ 
 least reasonably believed to exist. This is simply the hma fide 
 
 Pill' A - ^ s. L <iisputed 
 
 converse of a rule already given. As a promise by A. to right. 
 B. is 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 some- 
 thing which B. can already, as a matter either of public 
 
 [d) 18 C. B. 273, 25 L. J. C. P. Dr. & Sm. 289, wliich at first sight 
 
 300. looks like a decision that a in-omise 
 
 {c) Oldcrshaw v. Kmrj (Ex. Ch.) to forbear suing for no time in par- 
 
 2 H. & N. 517, 27 L. J. Ex. 120, ticular is a good consideration, is 
 
 and see 1 Wms. Saund. 225. The perhaps to be supported on this 
 
 case of Alliance Bank v. Broom. 2 ground.
 
 182 
 
 CONSIDERATION. 
 
 mar 
 
 or of private right, forbid A. to do. Such is the theoretical 
 
 expression of the rule, if we assume the existing rights of 
 
 Why com- ^^^q parties to he known : hut as in practice they often are 
 
 promises ■'■ . 
 
 are bind- 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 com- 
 promises of doubtful rights should be recognized as binding, 
 and they constantly are so recognized. Unless we chose 
 to treat these as an exception, which would be absurd, the 
 statement must be modified thus : A promise by A. to B, 
 not to do some thing or to prosecute some claim is not a 
 good consideration if A. knows, or as a reasonable man 
 ought to know, that the thing is one which B. can already 
 forbid him to do, or that the claim has no foundation. A 
 mere belief that a right exists is not enough ; the claim 
 must be such as the parties could reasonably regard as 
 serious (/). 
 
 This rule applies in the case (which apart from authority 
 might possibly seem doubtful) where the claim given up is 
 on a disputed promise of maniage (g). The real considera- 
 tion and motive of a compromise, as well in our law as in 
 the civil law and systems derived from it, is not the sacri- 
 fice of a right but the abandonment of a claim (A). A 
 partial compromise in which the undertaking is not simply 
 to stay or not to commence legal proceedings, but to 
 conduct them in some particular manner or limit them to 
 some particular 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 proceed- 
 ings in bankruptcy so as to injure the debtor's credit as 
 
 (/) Sec per Brett, L. J. in Ux claim on which the agreement was 
 
 parte Banner, 17 Ch. D. at p. 490, founded having been a plausible 
 
 coramentiugon Calllslicr v. BifichoJI'- one. 
 
 shcim, L. li. 5 Q. B. 449, 452, per [g) Kecnan v. Uandleij, 2 D. J. S. 
 
 Cockbiu-n, C. J., where the Ian- 283. 
 
 guagc used is too wide. But the (/;) Trigge v. LavalUe, 15 Moo. 
 
 decision in CaUishcr v. Bischof- V. C. 271, 292 (a case from Lower 
 
 sheim seems right, for the plea Canada, then imder old Fr. law) . 
 
 there was consistent with the 7/7% v. ViVyw, L. R. IOC. P. 497;
 
 RULES OF EQUITY. 183 
 
 little as possible is no consideration, for it is in truth merely 
 a promise not to abuse the process of the Court (/). 
 
 The main end and use of the doctrine of Consideration Reaction 
 in our modern law, whatever may have been its precise general 
 oriffin, is to furnish us with a reasonable and comprehensive ^°°^^"™*^ °^ 
 
 „ ' ,., T . .„ Considera- 
 
 set of rules which can be applied to all mf ormal contracts tion on 
 without distinction of their character or subject-matter. ^^^^(Jrseal. 
 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 way into the treatment 
 of formal contracts, though with a different aspect. The 
 ancient validity of formal contracts 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 treatment of legal questions which has been de- 
 veloped in modern times by the full recognition of informal 
 transactions. 
 
 This result is mainly due to the action of the Court of Most con- 
 Chancery. A merely gratuitous contract under seal is en- in^EmSty. 
 forceable at common law (with some peculiar exceptions) 
 unless it can be shown that behind the apparently gratui- 
 tous obligation 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 voluntary covenant, though under seal, "in equity, where 
 
 (i) Braceivell v. Williams, L. R. 2 C. P. 196,
 
 184 
 
 CONSIDERATION. 
 
 No specific 
 
 perfomi- 
 
 ance of 
 
 voluntary 
 
 agrecnent 
 
 though by 
 
 deed. 
 
 But_ exist- 
 ence of 
 considera- 
 tion may 
 be shown 
 aliunde. 
 
 E(iiiity 
 won't give 
 effect to 
 imperfect 
 gifts. 
 
 at least the covenantor is living (/.•), or where specific per- 
 formance of such a covenant is sought, . . stands scarcely, 
 or not at all, on a better footing than if it were contained 
 in an instrument unsealed" (/). And this restriction is 
 not affected by the union of legal and equitable jurisdic- 
 tion in the High Court of Justice. The rule that a court 
 of equity will not grant specific performance of a gra- 
 tuitous 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 convenience and the 
 practical requirements of procedure rather than on legal 
 principle, this is an absolute and unqualified rule which 
 must be considered as part of the substantive law. 
 
 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 con- 
 ceived, when the objection is made by way of defence in 
 an action for specific performance) to admit evidence of an 
 agreement under seal being in fact founded on good con- 
 sideration, where the deed expresses a nominal considera- 
 tion {i)i) or no consideration at all(;?), though (save in a 
 case of fraud or illegality) a consideration actually incon- 
 sistent with that expressed in the deed could probably not 
 be shown {m). 
 
 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, or a complete 
 transfer of any legal or equitable interest in property, yet 
 an incomplete voluntary gift creates no right which can be 
 
 (/■:) We shall see under the head 
 of undue influence that a system of 
 presumptions has been establialied 
 •which makes it difficult in many 
 cases for persons claiming under a 
 voluntary deed to uphold its validity 
 if the donor, or oven his representa- 
 tives, choose within any reason ablo 
 
 time afterwards to dispute it. 
 
 (/) Per liuight Bruce, L.J. AHr- 
 wich V. jlIuiDih///, 1 D. M. G. 170, 
 188. 
 
 (m) Lcif child's ca. 1 Eq. 231. 
 
 («) Llandly Ey. ^ Bock Co. v. L, 
 # N. W. Ry. Go. 8 Ch. 942.
 
 RULES OF EQUITY. 185 
 
 enforced. Certain recent decisions liave indeed sliown a * 
 tendency to infringe on this rnle by construing the circum- 
 stances 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 himself of all his interest (o). But these have been 
 disapproved in still later judgments which seem entitled to 
 more weight ( p) . 
 
 (o) Richardson v. Richardson, 3 11, Moore v. 3Ioorc, il>. Hi, ITcarlki/ 
 
 'Eq.68Q, Morffanv. Mallcson, 10 Bq. v. Nicholson, 19 Eq. 233. Cp. 
 
 475. Breton v. Woollvcn, 17 Ch. D. at 
 
 {p) Warrincr v. Rogers, 16 Eq. p. 420. 
 340, Richards v. Belbridge, 18 Eq.
 
 ( 186 ) 
 
 CHAPTER V. 
 Persons affected by Contract. 
 
 General Rules as to Parties. 
 
 Original The Original and simplest type of contract is an agree- 
 contract. inent 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 
 instance, and those only. 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 con- 
 tract or by special classes of exceptions. 
 
 Tho 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 therefrom. A wide statement 
 of it may be given in the shape of a maxim thus : 
 licgal The legal effects of a contract are confined to the con- 
 
 confined to tractmg parties. 
 
 contract- This, like most, if not all, legal maxims, is a generaliza- 
 parties. tion which can be useful only as a compendious symbol of 
 
 (a) Savigny, Obi. § 53 (2. 10), cp. on the sixbject of this chapter gene- 
 rally, ib. \\ 53-70, pp. 17-180.
 
 GENERAL RULES. 187 
 
 the particulars from which it is generalized, and cannot be 
 understood except by reference to those particulars. The This 
 fu'st step towards the necessary development may be given bTdeve.'^ 
 in a series of more definite but still very general rules, loped, 
 which we shall now endeavour to state, embodying at the 
 same time those qualifications, whether of recent intro- 
 duction or not, which admit of being stated in an equally 
 general form. 
 
 We give some preliminary definition of terms which it Defini- 
 will be convenient to use in extended or special senses, A ^°^^' 
 contract creates an obligation between the contracting 
 parties, consisting of duties on the one part and the right 
 to demand the performance of them on the other. 
 
 Any party to a contract, so far as he becomes entitled to "Cio- 
 have anything performed under the contract, is called the r^]^^^ 
 creditor. So far as he becomes bound to perform any thing "debtor." 
 under the contract he is called the debtor. 
 
 Representation, repycsentcdices, mean respectively succes- "Eepre- 
 sion 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. 
 A third person means any person other than one of the "Third 
 parties to the contract or his representatives {h) . person. 
 
 Rules. L The original parties to a contract must bo Eulea. 
 persons ascertained at the time when the contract is made. Parties. 
 
 2. The creditor can demand performance from the debtor Tiiiid per- 
 or his representatives. He cannot demand nor can the i,ound" 
 debtor require him to accept performance from any third 
 person ; but the debtor or his representatives may jDerform 
 the duty by an agent. 
 
 (i) 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 devif*ees of the property.
 
 188 
 
 PERSONS AFFECTED BY CONTRACT. 
 
 Third per- 
 son not 
 entitled. 
 
 3. No third person Ccan become entitled by the contract 
 itself to demand the performance of any duty under the 
 contract. 
 
 Exception. Provisions contained in a settlement made 
 upon and in consideration of marriage for the benefit of 
 children to be born of the marriage, or, in the case of a 
 woman marrying again, for the benefit of her children by 
 any former marriage, may be enforced by the persons 
 entitled to the benefit thereof (c). 
 
 Assign- 
 ment. 
 
 Notice to 
 debtor. 
 
 Equities. 
 
 4. Persons other than the creditor may become entitled 
 by representation or assignment to stand in the creditor's 
 place and to exercise his rights under the contract. 
 
 Explanation 1. Title by assignment is not complete 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. 
 
 Exp)lanation 2. The debtor is entitled as against the 
 representatives, 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 aft-ainst the creditor himself. 
 
 Excep- 
 tions : 
 Strictly 
 ])or,souul 
 duties. 
 
 The following exceptions are given in order to complete 
 the general statement. The further discussion of them 
 however would not be relevant to the subject of this 
 chapter. They are connected in principle with the cases of 
 a contract for personal services or the exercise of personal 
 skill becoming impossible of performance by inevitable 
 accident, of which we speak in Chap. VII. below. 
 
 Exception 1. 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 per- 
 formance of it be required from his representatives. Such 
 
 (c) See p. 199, below.
 
 GENEKAL RULES. 189 
 
 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. 
 
 Excej)tion 2. If it appears to have been the intention of Strictly 
 the parties that only the creditor in person should bo r^^ht".'^ 
 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 bo required 
 from the debtor's representatives. 
 
 Such an intention is presumed if the nature of the 
 transaction involves personal confidence between the parties, 
 or is otherwise such that " personal considerations " are of 
 the foundation of the contract (d). (Cp. Indian Contract 
 Act, 1872, ss. 37, 40.) 
 
 Exccj^tion 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 
 compensation 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 qualifi- 
 cations and exceptions. Most of the exceptions are of 
 modern origin, and we shall see that since their establish- 
 ment many attempts have been made to extend them. 
 
 {d) See Stevens v. Benning, 1 K. painter's executor, being also a 
 
 & J. 168, Farrow v. Wilson, L. R. 4 painter, were to complete an un- 
 
 C. P. 744, 746 ; Eohinson v. Darison, finished portrait on the original 
 
 L. R. 6 Ex. 269 ; 2 Sm. L. C. 38. terms at the sitter's request. 
 
 If in any of these cases the trans- (c) See 1 Wms. Exors. 798, 7th 
 
 action is continued by mutual con- ed. and Brathhcnv v. Lancashire ^• 
 
 sent, it is a new contract, e. g. if a Yorkshire Rij. Co., L. R. 10 0. P. 
 
 servant continues his service with a 189 (since questioned in Lcggott v. 
 
 deceased master's family, or if a G. N. Ry. Co., 1 Q. B. D. 599).
 
 190 
 
 l^ERSONS AFFECTED 15Y CONTRACT. 
 
 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 deci- 
 sions which limit the exceptions are for the most part the 
 chief authorities to show the existence of the rules, which 
 are of so general a kind as to be rather assumed as the 
 groundwork of decisions than expressly affirmed. 
 
 Rule 1. 
 
 Parties 
 must be 
 ascer- 
 tained. 
 
 No real 
 excep- 
 tions. 
 
 Our first rule is that the original jxirties to a contract 
 must be 2)e)'sons ascertained at the time when the contract 
 is made. It is obvious that there cannot be a contract 
 without at least one ascertained party to make it in the 
 first instance : and it is also an elementary 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 agree- 
 ment 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 addi-essed to the public 
 at large by advertisements or the like, and sales by auction. 
 But we have shown at length in Chap. I. that this view is un- 
 necessary and untenable, and that in every such case where 
 a contract is formed it is formed between 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 may come. 
 
 Effects of Contract as to Third Persons. 
 
 The affirmative part of our second rule, namely : The 
 creditor ca)i demand performance from the debtor or his 
 
 (/) Squire V. Whltton, 1 H. L. C. 333, 358.
 
 TARTIES MTST BE ASCERTAINED. 191 
 
 rcpreso)itativ('x, is now and long- has been, thong-h it was 
 not always, elementary (f/). 
 
 The negative part of it states that the creditor cannot -R-ulc 2. 
 demand, nor can the debtor require him to accept, performance ^"i^ f im 
 from any third person. This is subject to the explanation posed on 
 that the debtor or his representatives may perform the persons. 
 duty by an agent, which again is modified by the excep- 
 tion of strictly personal contracts as mentioned at the end 
 of the rules. On this we need not dwell at present. 
 
 It is obvious on principle that it is not competent to Itsfoun- 
 contracting parties to impose liabilities on other persons principle, 
 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 volun- 
 tary 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 
 taken from him and made over to the creditor iji). 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 bylaw to the party's own wrongful 
 
 {g) As to the liability of personal Ed. 1 (Eolls ed.) p. 238. It is said 
 
 representatives on the contracts of however that "Quia executoresnon 
 
 the testator or intestate see 1 "VYms. possunt facere legem pro defuncto, 
 
 Saund. 241-2. The old rule that an petens prohabit talliam suam, vel si 
 
 action of dibt on simple contract habeat sectam secta debet exami- 
 
 ■woiild not lie against executors nari :" Y. B. 20 & 21 Ed. 1, p. 45G. 
 
 where the testatorcould have waged For the conflict of opinion as to the 
 
 his law (though it is said the ob- remedy by assumpsit, see Eeeves 
 
 jection could be taken only by 3. 403, Y. B. Mich. 2. H. 8. 11. pi. 
 
 demurrer) seems to have been in 3, the strange dictum cow <;■« of Eitz- 
 
 truth an innovation. See the form herbert, Trin. 27 H. 8. 23, pi. 21, 
 
 of writ for or against executors, who said there was no remedy at all, 
 
 Fleta 1. 2, c. 62, § 9, and cp. E. N. anA. Norwood y. Read, inB.R.,Plow. 
 
 B. 119 M, 121 (the latter passage 180. In rmclton's ca. in Ex. Ch. 9 
 
 is curious : if a man has entered into Co. Rep. 86 i, this dictum was 
 
 religion his executors shall be sued overruled, authorities reviewed and 
 
 for his debt, not the abbot who explained, and the common law 
 
 accepted him into religion : see settled in substance as it now is. 
 p. 81, n. {/>), supra), and Y. B. 30 (h) Cp. Savigny Obi. §2.
 
 192 PEKSONS AFFECIED BY CONTRACT. 
 
 act in the case of tort, and in the case of quasi-contracts 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 true contract, the assent of a person to be bound is 
 at the root of the matter and is indispensable {h) . 
 
 Agency : The ordinary doctrines of agency form no real exception 
 
 tion^onfy " ^^ ^^^^- ^^^^ ^ contract made by an agent can bind the 
 
 apparent, 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 correct binding on the 
 
 agent also, as we have seen in Ch. II., but with that we are 
 
 When not here concerned. Another less simple apparent excep- 
 
 hewTn^^^ tion occurs in the cases in which companies have been held 
 
 equity to ^ liable to fulfil the agreements made by their promoters 
 
 aoree- before the companies had any legal existence. These cases 
 
 ments ; howevcr proceed partly on the ground of a distinct obliga- 
 
 not) €X •IT* -t 1 •• 
 
 contractu, tion havmg either been imposed on the company m its 
 original constitution, or assumed by it after its formation (c), 
 partly on a ground independent of contract and analogous 
 to estoppel, namely, that when any person has on certain 
 terms assisted or abstained 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 established 
 probably goes as far as this, but certainly no farther (d). 
 
 {!)) Zumlei/ v. Oye, 2E. &B. 216, his land to B. the duty of all men 
 
 22 L. J. Q. B. 463, and Boicen v. to respect the rights of B. instead 
 
 Ilall (C. A.), 6 Q. B. D. 333, in of A., as owner of that land, is a 
 
 which the principle of Lnmley v. duty under the contract of sale or 
 
 G)je was upheld by the majority of the conveyance, 
 the Court, show that a stranger (c) Lindlcy I. 395, 397. 
 
 may be liable in tort for procuring [d) Lindley 1. 400. As to rati- 
 
 the breach of a contract. But this fication by companies see p. 107, 
 
 is'not an obligation under the con- above, 
 tract, any more than when A. sells
 
 NOVATION 193 
 
 In one case of a suit in equity for specific performance of stranger 
 an award a tliird person interested in the subject-matter ^'^^^ 
 was made a party ; and Sir L. Sliadwell held that he was award in 
 bound by the award, though he had not been a party to the ^^^^^f ' 
 reference and had in no way assented to it, but simply 
 knew of it and remained passive {c) . This decision does 
 not appear to have been much considered, and does appear 
 quite contrary to principle. Moreover it cannot stand with 
 Lord Cottenham's decision in Taskcr v. Small (/) that in a 
 suit for the specific performance of a contract third persons 
 claiming an interest in the subject-matter are not even 
 proper parties : and even without this it is surely obvious 
 (unless and until a court of final appeal shall think other- 
 wise) 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. 
 
 Another branch of the same general doctrine, which on Novation, 
 principle is scarcely less obvious, is that the debtor cannot 
 be allowed to substitute another person's liability for his 
 own without the creditor's assent. Some authorities which 
 illustrate this are referred to in a subsequent chapter where 
 we consider from another point of view the rule that a 
 contract cannot be made except with the person with whom 
 one intends to contract [g) . 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 
 question of fact, but assent to a novation is not to be 
 inferred from conduct unless there has been a distinct and 
 unambiguous request iji). 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 mem- 
 
 (e) Govett V. Michnond, 7 Sim. 1. parties to it. 
 
 The case of Taylor y. Farnj, 1 Man. (/) 3 My. & Cr. 63, followed in 
 
 & Gr. 604, seems at fii'st sight to De Hoghton v. Money, 2 Ch. 164. 
 
 make the same way ; but there the [g] Itobson v. Urummond, 2 B. & 
 
 Court relied on positive acts of the Ad. 303 ; infra, Ch. VIII. 
 
 parties asshowingthatthey adopted [h) Conquests ca., 1 Ch. D. 334, 
 
 thereference and were substantially 341.
 
 194 PERSONS AFFECTED BY CONTRACT. 
 
 bers of the firm, or on contracts made in a business wbicb 
 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 has arisen in late years out of successive amalga- 
 mations of life insurance companies (/). 
 
 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 discharge the original 
 debtor (k) ? It would be beyond our scope to enter at 
 large on this subject, for an exposition of which the 
 reader is referred to Lord Justice Lindley's work on 
 Partnership (1). 
 
 Real ex- There exist however exceptions to the general rule. In 
 to^come certain cases a new liability may without novation be 
 under created in substitution for or in addition to an existing 
 liability, but where the possibility exists of such an 
 exceptional transfer 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 Bule 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 bind himself once for all by the original contract to 
 accept a substituted 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 them- 
 selves. But it has been decided in the winding-up of the 
 
 (i) It is doubtful whether some of (/) 1. 435, 4G3 : and as to the 
 
 these were really cases of novation : general principle of novation see 
 
 see IlOrCt ca. and Grahi's ca. 1 Ch. Wilson v. Lloyd, IG Eq. 60, 74 ; for 
 
 D. 307, 322. a later instance of true novation, 
 
 (/.) Sec Rolfc V. Flou-er, L. R. 1 MUler's ca. 3 Ch. D. 391. 
 P. C. 27, 44.
 
 AGENCY. 195 
 
 European Assurance Society that where the deed of settle- 
 ment of an insui'ance company contains a power to transfer 
 the business and liabilities to another company, a transfer 
 made under this power is binding on the policy-holders 
 and they have no claim against the original company {ui). 
 In the case of a policy-holder there is indeed no subsisting 
 debt (;;?), but he is a creditor in the wider sense above 
 defined (p. 187). 
 
 JRuie 3. No third 2'>crson can become entitled hj the contract 
 itself to demand the i^erformance of any duty under the 
 contract. 
 
 Before we consider the possibility of creating arbitrary Rule 3. 
 
 exceptions to this rule in any particular cases, there are '^^"^j^^^ 
 
 some extensive classes of contracts and transactions on third 
 
 analogous to contract which call for attention as offering P^^®*^^^- 
 real or apparent anomalies. 
 
 A. Contracts made by agents. Here the exception is Excep- 
 only apparent. The principal acquii'es rights under a Agency: 
 contract which he did not make in person. But the agent apparent 
 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 contracting party is the 
 principal. 
 
 Consider the following series of steps from mere service Degrees of 
 to full discretionary powers : agency. 
 
 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 endeavom' to obtain a variation of the other party's 
 proposal (/. e. to make the best bargain he can with the 
 particular person), within certain limits. 
 
 (w) Sari's ca. and Grain'' s ca. 1 Cocker'' s ca. 3 Ch. D. 1. 
 Ch. D. 307 ; Barman's ca. ih. 326 ; 
 
 o2
 
 196 
 
 PEltSONS AFFECTED BY CONTRACT. 
 
 Agent 
 contract- 
 ing per- 
 sonally. 
 
 Ratifica- 
 tion. 
 
 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. 
 
 4. He is not confined to one particular contract, but is 
 authorized generally to make such contracts in a specified 
 line of business or for specified purposes as he may judge 
 best for the principal's interest («). 
 
 The fact that in many cases an agent contracts for him- 
 self as well as for his principal, and the modifications 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 pm-poses of the contract the acts of the 
 principal, or the principal from being the real contracting 
 party. Again, when the agent is also a contracting party 
 there are two alternative contracts with the agent and with 
 the principal respectively. 
 
 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 subsequently ratified. The consent of the 
 principal is referred back to the date of the original act by 
 a beneficent and necessary fiction. 
 
 Other 
 
 relations : 
 
 principal 
 
 and 
 
 surety ; 
 
 terms 
 
 annexed 
 
 by law to 
 
 original 
 
 contract. 
 
 B. 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 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 
 
 («) Cp. Savigny, Obi. 2. 57-60.
 
 TRUSTS. 197 
 
 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. However it seems 
 proper not to omit the mention of such cases, inasmuch as 
 they have been considered as real exceptions by writers of 
 recognized authority (o). 
 
 Insolvency and bankruptcy, again, have various conse- Anoma- 
 quences which affect the rights of parties to contracts, but effects of 
 which the general principles of contract are inadequate to ^''^"^" 
 explain. We allude to them in this place only to observe and in- 
 that it is best to regard them not as derived from or inci- ^° ^'^'^^y- 
 dental to contract, but as results of an overriding necessity 
 and beyond the region of contract altogether (p). Even 
 those transactions in bankruptcy and insolvency which have 
 some resemblance to contracts, such as compositions with 
 creditors, are really of a judicial or quasi- judicial character. 
 It is obvious that if these transactions were merely con- 
 tracts no dissenting creditor could be bound. 
 
 C. The case of trusts presents a real and important Trusts: 
 exception, if a trust is regarded as in its origin a contract exception 
 between the author of the trust and the trustee. It is i* ^^^^ ^ 
 
 • Til p 1 p ^ contract 
 
 quite possible, and may lor some purposes be useiul so to between 
 regard it. The Scottish institutional writers (who follow fi!j|^^*°^ni 
 the Eoman arrangement in the learning of Obligations as trustee, 
 elsewhere) consider trust as a species of real contract by sixTt-^ 
 coming under the head of depositation (q). Conversely ^i**^ ^.^^ 
 deposits, bailments, and the contract implied by law which writers : 
 is the foundation of the action for money received, are ^^^^^87 
 spoken of in English books as analogous to trusts (r). A in English 
 chapter on the duties of trustees forms part of the best °° ^' 
 known American text-books on contracts, though no 
 
 (o) See Pothier, Obi. § 89. at p. 17-i. 
 
 [p) A striking instance is fur- {q) Sic, though no such abstract 
 
 nished by the rule in jrarhiff's case, term is known in Eoman law. See 
 
 19 Ves. 345 ; see per Lord Cairns, Erskine, Inst. Bk. 3, Tit. I. s. 32. 
 
 Banner v. Johnston, L. R. 5 H. L. (r) Blackstone, Comm. 3. 432.
 
 198 PERSONS APFECTED BY CONTRACT. 
 
 attempt is made, so far as we have ascertained, to explain 
 tlie logical connexion of this with the rest of the subject. 
 
 By the creation of a trust duties are imposed on and 
 undertaken hy the trustee which persons not parties to the 
 transaction, or even not in existence at its date, may after- 
 wards enforce. 
 General And the relation of a trustee to his cestui que trust is 
 
 analogy to e^QgQiy 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 owner- 
 ship 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 con- 
 tract for the sale of land) cannot be enforced completely, 
 except in a court of equity (s) . 
 
 However, although every 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 involved in 
 a trust cannot be conveniently reduced to the ordinary 
 elements of contract, and there seems to be sufficient jus- 
 tification (independently of the historical reason supplied 
 by the exclusive jurisdiction of Equity) for the course 
 hitherto adopted by all English writers in dealing with 
 trusts as a separate branch of law. 
 
 (s) See per Lord Westbury, 7f«oa; Cairns), and at p. 356 (Lord 
 V. Gi/e, L. R. 6 H. L. at p. C75 ; Hatherlcy). 
 Shaw V. Foster, ib. at p. 338 (Lord
 
 SETTLEMENT TRUSTS. 199 
 
 D. Closely connected with the cases covered by the Exceptiou 
 doctrine of trusts, but extending- beyond them, wo have proT/hioua 
 the rules of equity by which special favour is extended forchild- 
 to provisions made by parents for their children. This 
 exception has ah-eady been noted in stating the general 
 
 rule (t) . In the ordinary case of a marriage settlement 
 the children of the contemplated marriage itself are said 
 to be " within the consideration of marriage " and may 
 enforce any covenant for their benefit contained in the 
 settlement. 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 
 voliinfeers, or persons having no part in the consideration, 
 are likewise entitled to enforce the provisions for their 
 benefit ; but it is doubtful whether this extends to the 
 case of a husband making a provision for his children by a 
 former wife (n). 
 
 The question how far limitations in a marriage settle- 
 ment to persons other than children can be supported by 
 the consideration of marriage, so as not to be defeasible 
 under 27 Eliz. c. 4, against subsequent purchasers, is a 
 distinct and wider one, not falling within the scope of the 
 present work (.r). 
 
 E. There is also a considerable class of statutory excep- Statutory 
 tions in cases where companies and public bodies, though tions : 
 not incorporated, are empowered to sue and be sued by ^^^J^^'^*° 
 their public officers or trustees. The enactments of this public 
 kind relating to companies are collected and commented ^o.*^^^^' 
 on by Lord Justice Lindley (//). 
 
 The trustees of Friendly Societies and Trade Unions are 
 likewise empowered to sue, and may be sued, in their own 
 
 (t) P. 188, above, cp. per Cotton, desired, to the autliorities,including 
 
 L. J. 15 Ch. D. at p. 24'2. the full discussion in Mr. May's 
 
 (m) Gale V. Gale, 6 Ch. D. 144, book on Voluntary and Fraudulent 
 
 152. Conveyances. 
 
 (x) The references in Gale v. Gale (y) Lindley, Ptnp. 1. 509, sqq. 
 
 (last note) will guide the reader, if
 
 200 
 
 PERSONS AFFECTED BY CONTRACT. 
 
 Covenants 
 relating 
 to real 
 property. 
 
 names, in cases concerning the property of the society or 
 union (s). 
 
 By the 8 & 9 Vict. 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 re- 
 ported decision (a). 
 
 General 
 applica- 
 tion of 
 rule. 
 
 Having disposed of these special exceptions, we may 
 now proceed to examine the rule in its ordinary applica- 
 tion, 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 desirable, and in which accordingly it has been 
 attempted, to effect this : (1) where the object of the con- 
 tract 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 It was for a long time not fully settled whether a con- 
 of^ third ^r^ct between A. and B. that one of them should do some- 
 person, thing for the benefit of C. did or did not give C. a right 
 of action on the contract (b). And there was positive 
 authority that at all events a contract made for the benefit 
 
 (2) Friendly Societies Act, 187o, 
 38 & 39 Yict. c. 60, s. 21 ; Trade 
 Union Act, 1879, 3i & 35 Vict. c. 
 31, s. 9. It is the same with build- 
 ing societies formed before the Act 
 of 1874 and not incorporated under 
 it. A statute enabling a local au- 
 thority to recover expenses, and not 
 specifying any remedy, has been 
 held to make the local authority a 
 quasi-corporation for the purpose 
 of suing: Mtl/.s v. Scott, L. U. 8 
 Q. B. 49G. And the grant of a right 
 by the Crown to a class of persons 
 may have the effect of incorporating 
 them to enable them to exercise the 
 right: WM'unjdale v. Maillcoul, 3 
 Eq. 103, explained by Jessel, M. R. 
 
 in Chilton v. Corporation of London, 
 7 Ch. D. at p. 741. 
 
 (rt) For an example of the incon- 
 venience provided against by it see 
 Lord tSouthanipton v. £roicn, 6 B. & 
 C. 718, where the person who was 
 really interested in the payment of 
 rent on a demise made by trustees, 
 and with whom jointly with the 
 trustees the covenant for payment 
 of rent was expressed to be made, 
 was held incapable of joining in an 
 action on the covenant. 
 
 {b) See Vincr, Abr. Assumpsit, Z. 
 (1. 333-7); per Eyre, C. J., Co. of 
 L'cUri/a/ar.s v. .Davirs, 1 Bos. & P.98 ; 
 note to Fiffott v. T/ioinpson, 3 Bos. & 
 r. 149.
 
 THIRD PERSON CANNOT SUE. 2Ui 
 
 of a person nearly related to one or botli of the contracting 
 parties might be enforced by tbat person (c). However Third pcr- 
 the rule is now distinctly established that a third person gueatlaw* 
 cannot sue on a contract made by others for his benefit 
 even if the contracting parties have agreed that he may, 
 and that near relationship makes no diiierence as regards 
 any common law right of action. This was decided by the 
 Court of Queen's Bench in Ticcddle v. Atkinson (d). 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 mutually 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 Willam Tweddle shall and 
 will pay the sum of £100 to the said William Tweddle each and severally 
 the said sums 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 eqiiity for the aforesaid sixms hereby promised and 
 specified." 
 
 William Tweddle, the son of John Tweddle, brought an 
 action against the executor of William Gruy on this agree- 
 ment, the declaration averring his relationship to the 
 parties, and their intention to carry out a verbal agree- 
 ment made before the plaintiif'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 to the contrary, considering that their authority was 
 already sufficiently disposed of by the effect of modern 
 decisions and practice (<?). 
 
 (c) Button V. rook (Ex. Ch.), 2 to a contract who has suffered 
 
 Lev. 210, Vent. 318, 322. Ap- damage by the non- performance of 
 
 proved by Lord Mansfield, Cowp. it sue the defaulting jmrty for the 
 
 443. There appears to have been damage : Flai/ford v. United King- 
 
 much difference of opinion at the dom Electric Telegraph Co., L. E.. 4 
 
 time. Q. B. 706, B'lchson Y.Iteuter's Tele- 
 
 {d) IB. & S. 393, 30 L. J. Q. B. gram Co., 2 C. P. D. 62, in C. A. 3 
 
 265. C. P. D. I. But in these cases of 
 
 (e) See also Trice v. JEaston, 4 B. telegraphic despatches a contrary 
 
 & Ad. 433. Much less can a stranger opinion prevails in America ; Bio-e-
 
 PERSONS AFFECTED BY CONTRACT. 
 
 The doctrines of equity are at first siglit not so free 
 from doubt. There is clear and distinct authority for 
 these propositions : When two persons, for valuable consi- 
 deration as between themselves, contract to do some act for 
 the benefit of another person not a party to the contract — 
 
 (i) That person cannot enforce the contract against 
 either of the contracting parties, at all events if not nearly 
 and legitimately related to one of them (/). Probably the 
 only excejotion is that mentioned above, pp. 188, 199, in 
 favour of children provided for by marriage settlements. 
 
 (ii) But either contracting party may enforce it against 
 the other although the person to be benefited had nothing 
 to do with the consideration (g). 
 
 On the other hand the case of Gregory v. Williams {Ji) 
 shows that a third person for whose benefit a contract 
 is made may join as co-plaintiff with one of the actual 
 contracting 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 
 Grregory was about 900/., and that there were no other 
 debts, undertook to satisfy the debt to Grregory on having 
 an assignment of certain property of Parker's. Grregory 
 was not a party to this arrangement, nor was it com- 
 municated to him at the time. The property having been 
 assigned to Williams accordingly, the Court held that 
 Grregory, suing jointly with Parker, was entitled to call 
 
 low, L. C. on the Law of Torts, 619 
 sqq. Mr. Bip^elow ingeniously sup- 
 poi'ts this opinion on general prin- 
 ciples, regarding the cause of action 
 as not ex contractu, but foiinded on 
 a wrong of which the contract is the 
 occasion — the breach of a general 
 duty so to perform one's contracts as 
 not to injure thii'd persons. In 
 England, however, the existence of 
 
 any such duty seems to be clearly 
 negatived by Alton v. Midland Ey. 
 Co. 19 C. B. N. S. 213, 34 L. J. 
 C. P. 292. 
 
 (/) Colyear v. Ifulgrave, 2 Kee. 
 81. 
 
 {g) Davenport v. Bishopp, 2 Y. & 
 C. 451, 460, 1 Ph. 698, 704. 
 
 {h) 3 Mer. 582.
 
 STRANGERS CANNOT SUE ON CONTRACT. 203 
 
 upon Williams to satisfy his debt to the extent of 900/. 
 (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 (/) ; and the true view of the case 
 appears to be that the transaction between Williams and 
 Parker amounted to a declaration of trust of the property 
 assigned for the satisfaction of Gregory's claim to the 
 specified extent (k) . 
 
 Another apparent exception is the case of Paf/e v. Cox (J) , Page v. 
 where it was held that a provision in partnership articles yi°^on for' 
 that a partner's widow should be entitled to his share of widow in 
 the business might be enforced by the widow. But the ship 
 decision was carefully put on the ground that the provision ^^^^^i^^^s. 
 in the articles created a valid trust of the partnership pro- 
 perty in the hands of the surviving partner. The result 
 is that there is no real and allowed authority for holding 
 that rights can in general be acquired by thii"d parties 
 under a contract, unless by the creation of a trust. 
 
 These peculiar cases do not however affect the general 
 principle. " A mere agreement between A. and B. that 
 
 B. shall pay 0. (an agreement to which 0. 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 " (m). 
 
 "An agreement between A. and B. that B. shall pay 
 
 C. gives C. no right of action against B." («). 
 
 (i) For an attempt of a tliird (m) Jessel, M-B,., Empress Un/jfi- 
 
 person to sue at law under very neering Co., 16 Ch. D. 125, 129. 
 
 similar cii'cumstances see Price v. {n) Lindley, L. J. Ee Rotherham 
 
 EastoH, 4 B. & Ad. 433, showing Alum and Chemical Co. 25 Ch. D. at 
 
 clearly that A. cannot sue on a p. 111. These statements overrule 
 
 promise by B. to C. to pay C.'s what is said in ToucJie v. Metrop. 
 
 debt to A. Railway Warehousing Co. 6 Ch. 671, 
 
 (A:) Empress Engineering Co. [C. A.) G77. As to that case see Lindley, 
 
 16 Ch. D. 125, 129, 130, byJessel, 1. 396. Compare further Eltg v. 
 
 M. R. and James, L. J. Positive, c^-c. Life Assurance Co. 
 
 {I) 10 Ha. 163, cp. Murray v. (C. A.) 1 Ex. D. 88 (a pro\dsion in 
 
 Flavell (C. A.) 25 Ch. D. 89. articles of association that A. shall
 
 204 
 
 PERSONS AFFECTED BY CONTRACT. 
 
 Third 
 person em- 
 powered 
 to sue for 
 
 We now come to the class of cases in wliicli contracting 
 parties have attempted for their own convenience to vest 
 the right of enforcing the contract in a thu'd person. 
 Except within the domain of the stricter rules applicable 
 to parties to actions on deeds and negotiable instruments, 
 there ajopears to be no objection to several contracting 
 parties agreeing 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 stipulation, they may em- 
 power one partner alone to sue for the penalty (o). The 
 application of the doctrines of agency may also lead to 
 similar results {p). It seems doubtful whether a promise 
 to several persons to make a payment to one of them will 
 of itself enable that one to sue alone {q). 
 
 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 been tried in order to evade the 
 difficulties that stand in the way of unincorporated asso- 
 ciations enforcing their rights, but have always failed when 
 attention was called to them. This has happened in the 
 case of actions brought by the chairman for the time being 
 
 be solicitor to the company and 
 transact all its legal business is as 
 regards A. res inter alios acta and 
 gives liim no right against the 
 company) ; Mdhudo v. Porto Alegre 
 Etj. Co. L. R. 9 C. P. 603. In 
 America the rule is still unsettled, 
 and conflicting opinions are held in 
 different States. See an article on 
 the subject in the "American Law 
 Review " for April, 1881. 
 
 (o) Radcnhiirst v. Bates, 3 Bing. 
 4G3, 470. Of course they must take 
 care to make the penalty payable 
 not to the whole Arm, but to the 
 members of the firm minus the 
 offending partner. Whether under 
 the present liulcs of Court the other 
 partners could use the name of the 
 firm to sue for the penalty, qiicerc. 
 
 {p) Spurr V. Cass, L. E. 5 Q. B. 
 656. 
 
 {q) Chanter v. Leese, 4 M. & W. 
 295 ; in Ex. Ch. 5 M. & W. 698, 
 where both Courts inclined to think 
 not, but gave no decision. In Jones 
 V. Robinson, 1 Ex. 454, 17L. J. Ex. 
 36, an action was brought by one of 
 two late partners against the pur- 
 chaser of the business on a promise 
 to pay the plaintifl: what was due to 
 him from the firm for advances. 
 This was declared on as a sepai'ate 
 promise in addition to a general 
 promise to the two partners to pay 
 the partnership) debts, and the only 
 question was whether there was 
 any sc^parate consideration for the 
 promise sued on.
 
 STRANGERS CANNOT SUE ON CONTRACT. 205 
 
 of the directors of a company (/•), by the directors for the 
 time being of a company (s), by the purser for the time 
 being of a cost-book company (t), and by the managers 
 of a mutual marine insurance society (u). It will not be 
 necessary to dwell on any instance other than the last. In 
 Gra// V. Pear^ion the reasons against allowing the right of 
 action are well given in the judgment of Willes, J. : — 
 
 " I am of opinion that this action cannot be maintained, and for the Judgement 
 simple reason,- — a reason not applicable merely to the procedure of this ^^ U illes, 
 country, but one affecting all sound procedure, — that the proper person "p •' 
 
 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 effected by the plaintiffs for him, and for 
 his share and contributions to losses and damages paid by them to other 
 members of the 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." 
 
 Another variety of the same device is a document pur- Notes and 
 porting to be a negotiable instrument payable to the ^iV'^?'^^' 
 treasurer or other officer for the time being of a society, treasurer, 
 Such a document, whether in the form of a promissory tbZ being 
 note {x) or of a bill of exchange (//), is invalid, for the invalid. 
 payee must be a person capable of being ascertained at 
 the time of making the note or accepting the bill. There 
 is no doubt that a contract in any other form to pay the 
 
 (r) Hall V. Bainbridge, 1 Man. & [n) Gray v. Pearson, L. R. 5 C. 
 
 Gr. 42. P. 568 : in the earlier case of Gray 
 
 [s) Fhelps V. Lylc, 10 A. & E. v. Gibson, L. R. 2 C. P. 120, a 
 
 113. similar action succeeded, the ques- 
 
 [t) Sybart v. Farker, 4 C. B. tion of the manager's i-ight to sue 
 
 N. S. 209, 27 L. J. C. P. 120: not being raised, 
 
 where Willes, J., suggested that it {x) Storm v. Stirling, 3 E. & B. 
 
 was trenching upon the preroga- 832, 23 L. J. Q. B. 298 ; in Ex. 
 
 five of the Crown to make a new Ch. nom. Coicie v. Stirling, 6 E. & 
 
 species of corporation sole for the B. 333, 25 L. J. Q. B. 335. 
 
 purpose of bringing actions. (y) Yates v. Kas?i, 8 C. B. N. S. 
 
 581, 29 L. J. C. P. 30G.
 
 206 
 
 PERSONS AFFECTED BY CONTRACT. 
 
 treasurer for the time being woiild be equally inoperative 
 to give any right of action to the person who should from 
 time to time fill the office (z). But a promissory note 
 payable to " the trustees of the W. chapel or their treasurer 
 for the time being " is good : for it is considered that the 
 trustees existing at the date of the note are the persons 
 ascertained as payees, and that the treasurer is named only 
 as their agent to receive payment {a) . 
 
 Assignment of Contracts. 
 
 Rule 4. 
 Transfer 
 of rights 
 under 
 contract. 
 
 Right to 
 sue on 
 contract 
 not as- 
 signable 
 at common 
 law : 
 probable 
 origin of 
 the rule. 
 
 Rule 4. We now come to the fourth rule, which we have 
 expressed thus : — 
 
 Persons other than the creditor may become entitled by 
 representation or assignment to stand in the creditor's 2)l<-tce 
 and to exercise his rights under the contract. 
 
 We need say nothing here about the right of personal 
 representatives 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 {b). 
 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 (c). The 
 origin of the rule was attributed by Coke to the " wisdom 
 and policy of the founders of our law " in discouraging 
 maintenance and litigation {d ) : but there can be little or 
 no doubt that it was in truth a logical consequence of the 
 primitive view of a contract as creating a strictly personal 
 obligation between the creditor and the debtor (e). Any- 
 
 (z) Pigott V. Thompson, 3 Bos. & 
 P. 147. 
 
 {a) Holmes v. Jaqucs, L. R. 1 Q. 
 B. 376. 
 
 (i) Subject to some technical 
 exceptions which have now dis- 
 appeared : see notes to Whcatley v. 
 Lane, 1 Wms. Saund. 240 sqq. and 
 for early instances of actions of 
 debt brought by executors, Y. B. 
 
 20 & 21 Ed. 1, pp. 304, 374. 
 
 (c) Termes de la Ley, tit. Chose in 
 Action. 
 
 (d) Lampei's ca. 10 Co. Rep. 48 a. 
 For exposition of the rule in detail 
 see Dicey on Parties, 115. 
 
 {e) Spence, Eq. Jurisd. of Chy. 
 2. 850. An examination of the 
 earlier authorities has been found 
 to confirm this view. The rule is
 
 ASSIGNMENT OF CONTRACTS. 207 
 
 how, it has heen long cstahlished that the proper course at 
 common law is for the assignee to sue in the name of the 
 assignor. It appears from the Year Books that attempts 
 were sometimes made to object to actions of this kind on 
 the ground of maintenance, but without success. The 
 same rule is very distinctly stated by Grains as prevailing 
 in the Roman law (./'). 
 
 In equity the right of the assignee to sue in his own in equity- 
 name has been recognized for some considerable time ; it ^^/sue 
 is perhaps impossible to say precisely for how long, but at 
 any rate since the rules of equity have been at all 
 systematic (g). 
 
 The Supreme Court of Judicatui'o Act, 1873 (s. 25, Legal 
 sub-s. 6), creates a legal right modelled on the equitable "^fi^oTiee 
 right, but confined to cases where the assignment under Ju- 
 
 cLiCtiturG 
 
 is absolute, and by writing under the hand of the Act, 1873. 
 assignor, and express notice in writing has been given 
 to the debtor. 
 
 These restrictions are but partly known in equity. By in equity 
 the Statute of Frauds (29 Car. 2, c. 3, s. 9) " all grants and "^T ■ 
 
 ^ 7 3/ o ^ extensive : 
 
 assignments of any trust or confidence " must be in writing how far 
 
 signed by the assignor, and by s. 7, equitable interests w^stat! of 
 
 in land must be created by writing. S. 9 does not Frauds, 
 
 requii'e writing for the creation in the first instance by 
 
 assumed as unquestionable, and agere, sed debes ex persona mea 
 
 there is no trace of Coke's reason quasi cognitor aut procurator meus 
 
 for it. The objection of main- experii-i. In later times the trans- 
 
 tenance was set up, not against the feree of a debt was enabled to sue 
 
 assignee suing in his own name, by utllis actio in his own name, 
 
 which was never attem23ted so far This seems to have been fii-st intro- 
 
 as we can find, but against his suing duced only for the benefit of the 
 
 in the name of the assignor: see purchaser of an inheritance, D. 2. 
 
 Note Gr in Appendix. 14. de pactis, 16 pr., C. 4. 39. de 
 
 (/) Gai. 2. 38, 39. Quod mihi hered. vel act. vend. 1, 2, 4—6, 
 
 ab ahquo debetur, id si veUm tibi and afterwards extended to aU cases, 
 
 debcri, nullo eorummodoquibusres C. eod. tit. 7, 9. See too C. 4. 10. 
 
 corporales ad alium transferuntur, de obi. et act. 1, 2, C. 4. 15. quando 
 
 id efiiccre possum : sed opus est, ut fiscus, 5, Amdts, Lehrbuch der 
 
 iubente me tu ab eo stipuleris: Pandekten, § 254. 
 
 quae res efficit ut a me liberetur et {g) There is a curious case in T. 
 
 incipiat tibi teneri. quae dicitvir B. 37 H. 6. 13, pi. 3, from which it 
 
 novatio obligationis. Sine hac vero seems that equitable assignments 
 
 novatione non poteris tuo nomine were then unknown.
 
 208 
 
 PERSONS AFFECTED BY CONTKACT. 
 
 In other 
 special 
 cases by 
 statute. 
 
 Limita- 
 tion of 
 assignee's 
 rights. 
 
 the legal owner or creditor of an equitable interest in 
 j^ersonal 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 (h). 
 
 As for the notice to the debtor, the rule of equity is that 
 it must be express but need not be in writing {i). 
 
 There remain, therefore, a great number of cases where 
 the right is purely equitable, although the enlarged juris- 
 diction of every branch of the Supreme Court makes the 
 distinction less material than formerly. 
 
 Several partial exceptions to the common rule have been 
 made at different times by modern statutes, on which 
 however it seems unnecessary to dwell {k) . 
 
 In ordinary cases rights under a contract derived by 
 assignment from the original creditor are subject, as already 
 stated, to the following limitations : — 
 
 1st. Title by assignment is not complete as against the 
 debtor without notice to the debtor, and a debtor who per- 
 forms his contract to the original creditor without notice of 
 any assignment by the creditor is thereby discharged. 
 
 2nd. The debtor is entitled as against the representa- 
 tives, and, unless a contrary intention appears by the 
 
 (h) See 1 Sanders on Uses (5th 
 ed.) 343. 
 
 (i) Me Tichcner, 35 Beav. 317. 
 
 (7.) The more important instances 
 are these : — 
 
 East India Bonds, 51 G-eo. 3, 
 0. G4, s. 4, which makes them 
 negotiable. 
 
 Mortgage debentures issued by 
 land companies under the Mortgage 
 Debenture Act, 1865, 28 & 29 Vict. 
 c. 78, amended by 33 & 34 Vict. 
 c. 20. 
 
 Policies of life assurance : 30 & 
 31 Vict. c. 144. 
 
 Policies of marine assurance : 31 
 & 32 Vict. c. 8G. 
 
 Things in action of companies 
 (Companies Act, 1862, s. 157) and 
 
 bankrupts (Bankruptcy Act, 1883, 
 ss. 56, 57, and see definition of 
 " proj^erty," s. 168) assigned in 
 pursuance of those Acts respec- 
 tively. As to the effect of registra- 
 tion under the present Acts of 
 pi'eviously existing companies, &c., 
 in transferring the right to sue on 
 the contracts made by the company 
 or its officers in its former state, 
 see the Companies Act, 1862, s. 193, 
 Liudley 1. 492, note {y). 
 
 Local authorities (including any 
 authority having power to levy a 
 rate) may issue transferable deben- 
 tures and debenture stock under the 
 Local Loans Act, 1876, 38 & 39 
 Vict. c. 83.
 
 ASSIGNMENT : NOTICE TO DEBTOR. 209 
 
 original contract, as against the assignees of the creditor, 
 to the benefit of any defence which he might have had 
 against the creditor himself. 
 
 1 . As to notice to the debtor. Notice is not necessary Rules of 
 to complete the assignee's equitable right as against the assig-n- 
 original creditor himself, or as against his representatives, "^^^^.^^ 
 including assignees in bankruptcy (/) : but the claims of Notice to 
 competing assignees or incumbrancers rank as between 
 themselves not according to the order in date of the assign- 
 ments, but according to the dates at which they have 
 respectively given notice to the debtor. This was decided 
 by the cases of Dearie v. IldJl and LoverieUje v. Cooper {m), 
 the principle of which was soon afterwards affirmed by the 
 House of Lords {>i). The same rule prevails in the modern 
 civil law (o) and has been adopted from it in the Scottish 
 law (p) ; 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 give him a discharge, 
 unless and until he is distinctly informed that he is to 
 look to some other person. According to the original strict 
 conception of contract, ( " a ne considerer que la subtilite 
 du droit " as Pothier {q) 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 
 (as to which see p. 193, above). Such was in fact the old 
 Roman law, as is shown by the passage already cited from 
 
 [l] Burn V. Carvalho, 4 M. & Cr. representative, may equally gain 
 
 690. priority \>j notice : Freshjield' s tr. 
 
 {m) 3 Euss. 1, 38, 48. 11 Ch. D. 198. 
 
 [») Foster V. CockereJl, 3 CI. & F. (o) SeePothier, Contrat de Vente, 
 
 456. It has only lately been decided §§ 560, 554 sqq. 
 that a second assignee who takes his [p) Erskine Inst. Bk. 3, Tit. 6. 
 
 assignment not from the beneficiary [q) Contrat de Vente, § 550. 
 
 himself, but from his legal personal 
 
 P. P
 
 210 PERSONS AFFECTED BY CONTRACT. 
 
 Gaius. By tlie modern practice tlie novation is dispensed 
 
 "with, and the debtor becomes bound to tlie assignee of 
 
 wliom lie 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 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 (r). 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, whether that person is himself liable or is merely 
 
 charged with the duty of making the payment " (-s), e.g. as 
 
 an agent entrusted with a j)articular fund. Notice not 
 
 given by the assignee may be sufficient, if shown to be 
 
 This does such as a reasonable man would act upon {t) . All this 
 
 tointer^s'ts <ioctrine of notice has no application to interests in land {ii) : 
 
 in land ; but, subject to that exception, it applies to rights created 
 
 all other ^1 trust as wcU as to those created by contract ; the bene- 
 
 pqmtable ficial interest beinff treated for this pm'pose exactly as if 
 interests. . i i i p i -r i p 
 
 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 assignment 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 
 
 (r) See per Willos, J. L. R. 5 effect is that equitable interests in 
 
 C. P. at p. 594. Per Knight Bruce, land stand on a different footing 
 
 L. J. Stocks V. Dobson, 4 D. M. G. from personal rights : see this relied 
 
 11,17. on as the ground of the exception, 
 
 («) Per Lord Sclbomo, 0. Addison Jones v. Jones, 8 Sim. 644. But on 
 
 V. Cox, 8 Ch. 76, 79. the other hand theii- liability to be 
 
 {t) Lloyd V. lianlis, 3 Ch. 488. defeated by a purchase of the legal 
 
 (m) Although the exception is estate for value ■without notice 
 
 fully established there is good shows that they have not the nature 
 
 authority for thinking it not very of real ownership, 
 reasonable: see Lcwiu 581. Its
 
 ASSIGNMENT SUBJECT TO EQUITIES. 211 
 
 cannot be made personally liable for having acted on the 
 second assignment {w) . 
 
 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, notwith- 
 standing any previous assignment by him of the policy of 
 which no notice had been given to them " {//). 
 
 2. As to the debtor's rights against assignees. The rule Assigneo 
 
 • tUKGS sub* 
 
 laid down in the second explanation is often expressed m ject to 
 the maxim " The assignee of an equity is bound by all the equities : 
 equities affecting it." This however includes another rule meaning 
 founded on a distinct principle, which is that no transac- ^^^ ° 
 tion purporting to give a beneficial interest apart from 
 legal ownership (c) 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 to 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 («). And if B. makes over 
 his right to D., D. will have no better right than B. had (5). 
 And this applies not only to absolute but to partial inte- 
 rests (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 any beneficial interest of A.'s (whether an 
 equitable interest in property or a right of action) for the 
 
 (z) Fhipps V. Lovcgrove, 16 Eq. least doubtful whether they can bo 
 
 80 ; see p. 90 as to the precautions supported. 
 
 to be taken by an assignee of an (a) This is of course consistent 
 
 equitable interest who wishes to be with B. having his remedy in 
 
 perfectly safe. damages. Cp. p. 28, above. 
 
 (y) lb. at p. 88. [b) See Tinkett v. Wright, 2 Ha. 
 
 (s) Certain dicta in Sharpies v. 120, affd. nom. Murray v. Pinkett, 
 
 Adams, 32 Beav. 213, 216, and \2 G\. ScY. 1M; Ford y. White, IQ 
 
 Maxfield v. Burton, 17 Eq. 15, 19, Beav. 120 ; Clack v. Holland, 19 
 
 go even farther ; but it seems at Beav. 2C2. 
 
 p2
 
 212 PERSONS AFFECTED BY CONTRACT. 
 
 satisfaction of his debt 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 (c). But we are not con- 
 cerned here with the development of these doctrines, and 
 we return to the 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 suhject to all the ecxuities of the person who made the 
 assignment " {d). 
 
 " 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 obliga- 
 tion, or a trust fund, and it is assigned, the person who holds the debt 
 or obligation, 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 " {e). 
 
 This is in fact the same principle which is applied by 
 courts of common law as well as of equity for the pro- 
 tection of persons who contract with agents not known to 
 them at the time to be agents (/). What is meant by 
 this special use of the term " equities " will be best sho^vn 
 niustra- 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 0. without telling him of the set-off. B. is entitled 
 to the set-off as against C. (g). Again, B. has contracted 
 to pay a sum of money to A. but the contract is voidable 
 on the ground of fraud or misrepresentation. A. assigns 
 
 (c) Pickering t. Ilfracombe Eij. (/) Seep. 101, above. 
 
 Co. L. R. 3 ,C. P. 235, overruling {g) Cavendish v. Geaves, 24 Beav. 
 
 virtually Watts v. Porter, 3 E. & B. 163, 173, where the doctrine is fully 
 
 743, 23 L. J. Q. B. 345, see Crow v. expounded : the rules laid down by 
 
 Robinson, L. R. 3 C. P. 2G4 ; judg- Lord Eomilly, M. R. are given at 
 
 ment of Erie, J. (diss.) in Watts v. length in Lewin on Tr. 577. As 
 
 Porter. to set-off accruing after notice of 
 
 (d) Lord St. Leonards, j7/««y/f4v. assignment, Stcp/unsv. Vcnables, 30 
 Dixon, 3 H. L. C. 702, 731. Beav. G25, Watson v. Mid Wales Pg. 
 
 (e) James, L. J. (sitting as V.-C.) Co., L. R. 2 C. P. 593. 
 Phipps V. Lovcgrcve, 16 Eq. 80, 88. 
 
 tions.
 
 ASSIGNMENT F]IEE FROM EQUITIES. 213 
 
 the contract to C, who does not know the circumstances 
 
 that render it voidable. B. may avoid the contract as 
 
 against 0. (//). Again, in a somewhat 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 (/). 
 
 But it is open to the contracting parties to exclude the The rule 
 
 operation of this rule if they think fit by making it a term ^Xided 
 
 of the original contract that the debtor shall not set up ^y agree- 
 
 against an assignee of the contract any counter claim original 
 
 which he may have against the original creditor. This is po'^t^'^ct- 
 
 established by the decision of the Court of Appeal in parties. 
 
 Chancery in Ex parie Asiatic Banking Corporation, the BaSdn^ 
 
 facts of which have already been stated for another aspect Corpora- 
 „,,,,, tion'scase. 
 
 01 the case (/«•). 
 
 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 
 were 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 oi'iginal parties 
 
 (A) GrahamY. Johnson, 8 Eq. 36. 163. 
 
 (i) Cavendish v. Geaves, 24 Beav. [k) 2 Ch. 391 ; p. 20, supra.
 
 214 
 
 PERSONS AFFECTED BY CONTRACT. 
 
 Subse- 
 queBt 
 decisions ; 
 form of 
 instru- 
 ment, 
 how far 
 material. 
 
 to the contract ; but this is a rule which 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 cliose in action are enabled by 
 statute to sue at law, similar consequences may bo pro- 
 duced by way of estoppel (/) ; wbicb really comes to tlie 
 same tiling, the doctrine of estoppel being a more technical 
 and definite expression of the same principle. 
 
 The principle thus laid down has been followed out in 
 several later decisions on the effect of transferable deben- 
 tures issued by companies. The question whether the 
 holder of such a debenture takes it free from equities is to 
 be determined by the original intention of the parties. 
 
 The form of the instrument is of course material, but 
 the general tenor is to be looked to rather than the words 
 denoting to whom payment will be made ; these cannot 
 be relied on as a sole or conclusive test. Making a de- 
 benture 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 {tn). But an 
 antecedent agreement to give debentures in such a form is 
 evidence that they were meant to be assignable free from 
 equities (n) ; and debentures payable to bearer without 
 naming any one as payee in the first instance are prima 
 facie so assignable (o) ; so again if the document resembles 
 a negotiable instrument rather than a common money 
 bond or debenture in its general form (p). 
 
 Even when there is nothing on the face of the instru- 
 ment to show the special intention of the parties, the 
 
 (?) Webb V. Heme Bay Commis- 
 sioners, L. R. 5 Q. B. G42. 
 
 {m) Financial Corj)oration\s claim, 
 3 Ch. 355, 360. 
 
 (w) Ex parte New Zealand Banking 
 Corporation, 3 Ch. 154. 
 
 (o) Ux parte Colborne ^ Straiv- 
 
 brkhje, 11 Eq. 478, which cannot 
 now be taken as warranting any- 
 thing beyond the statement in the 
 text, cp. Crouch' v. Credit Fancier, 
 L. R. 8 Q. B. 374, 385. 
 
 (p) Ex parte City BanJc, 3 Ch. 
 758.
 
 ASSIGNMENT FREE FROM EQUITIES. 215 
 
 issuer cannot set up equities against the assignee if the 
 instrument was issued for the pm-poso of raising money on 
 it (q). The general circumstances attending the original 
 contract — e.g. the issue of a numher of debentures to a 
 creditor instead of giving a single bond or covenant for 
 the whole amount duo — may likewise be important. 
 Moreover, apart from any contract with the original 
 creditor, the issuing company may be estopped from 
 setting up equities against assignees by subsequent re- 
 cognition of their title (r). 
 
 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 (s) . 
 
 On principle this doctrine seems inapplicable in a case Qk. when 
 where the original contract is not merely subject to a cross nalcoif-^" 
 claim but voidable. For the agreement that the contract ti'act is 
 shall be assignable free from equities is itself part of the 
 contract, and should thus have no greater validity than 
 the rest. A collateral contract for a distinct consideration 
 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 iiTCVocable. 
 Nor 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 {t) . However, the point has not been distinctly 
 raised in any of the decided cases. In Graham v. John- 
 
 {q) Dixon v. Swansea Vale By. Assurance Soc. v. Fooley, 3 De G. & 
 
 Co. li. R. 4 Q. B. 44. Graham v. J. 294, be reconciled with these 
 
 Johnson, 8 Eq. 36, seems not con- cases? It seems not: JBrunton's 
 
 sistent with this. claim, 19 Eq. 302, 312. 
 
 (>■) Higgs V. Northern Assam Tea (s) Merchant Banking Co. of Lon- 
 
 Co. L. E.. 4 Ex. 387 ; Ex parte don v. Fhcenix Bessemer Steel Co. 5 
 
 Universal Life Assurance Co. 10 Eq. Ch. D. 205. 
 
 458 (on same facts) ; Ex parte {t) In principle it is the same as 
 
 Chorley, 11 Eq. 157; cp. Re Bahia the case put in the Digest (50. 17, 
 
 6; San Francisco By. Co. L. E. 3 de reg. iuris, 23) "non valere si 
 
 Q. B. 584. Qn. can Aihenci'iim Life convenerit, ne dolus praestetur."
 
 216 PERSONS AFFECTED BY CONTRACT, 
 
 son (/(), where the contract was originally voidable (if not 
 altogether void : the plaintiff had executed a bond under 
 the impression that he was accepting or indorsing a bill of 
 exchange) (x), an assignee of the bond as well as the 
 obligee was 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 ex- 
 pressed on the face of it that it should be assignable free 
 from equities. 
 
 However, if the contract were not enforceable as be- 
 tween the original parties only by reason of their being in 
 pari delicto, as not having complied with statutory require- 
 ments or the like, an assignee for value without notice of 
 the original defect will, at all events, have a good title by 
 estoppel {//). 
 Limits to The transferable debentures, the effect of which came in 
 bedonrby question in the cases we have just reviewed, were no doubt 
 agreement intended to be equivalent to negotiable instruments, and 
 contract there have been dicta in the Court of Chancery favouring 
 cannot be ^-^^ view that they were such in fact (z) . But a later 
 
 made ne- _ ^ ^ ^ ' 
 
 gotiabie: decision of the Court of Queen's Bench (1873) shows that 
 Credit ^' ^^^^ intention cannot be fully carried out. The debtor 
 Foncier. jjiay contract in such a way as to alter or abandon his 
 own rights as against assignees of the contract ; but he 
 cannot alter or abandon the rights of subsequent as- 
 signees, and therefore cannot enable an intermediate 
 transferor having no title to give a good title to his 
 transferee {a). 
 
 This marks the extreme limit of the extension which can 
 be given to the power of transferring rights under a con- 
 tract consistently with the general rules of law. 
 
 (m) 8 Eq. 36. missioners, L. R. 5 Q. B. 642. 
 
 {x) The evidence was conflicting, {z) See especially Ex parte City 
 
 but the Court took tliis view of the Hank, 3 Ch. 758. 
 
 facts: see at p. 43. («) C)-ouch v. Credit Fonder of 
 
 {y) See Webb v. Uerne Bay Com- Enyland, L. E,. 8 Q. B. 374.
 
 NEGOTIABLE INSTRUMENTS. 217 
 
 We are now in a position to see the nature of the diffi- Negoti- 
 cnlties which make the more assignment of a contract stminents 
 inadequate for the requirements of commerce, and to meet Difficul- 
 whieh negotiable instruments have been introduced, assignee of 
 
 The assignee of a contract is under two inconveniences {h) . ordmary 
 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 
 piu'pose 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 com- 
 petent 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 assignees nor enable the holder 
 to compel payment without proving his title. Parties 
 cannot set up a market overt for contractual rights. 
 
 The complete solution of the problem, for which the Remedy 
 ordinary law of contract is inadequate, is attained by the r^gfof^^ 
 law merchant (c) in the following manner : — lawmer- 
 
 (i.) The absolute benefit of the contract is attached to 
 the ownership of the document which according to ordinary 
 rules would be only evidence of the contract. 
 
 (ii.) The proof of ownership is then facilitated by pre- 
 scribing a mode of transfer which makes the instrument 
 itself an authentic record of the successive transfers : this 
 is the case with instruments transferable by indorsement. 
 
 (iii.) Finally this proof is dispensed with by presuming 
 the bo)ia fide possessor of the instrument to be the true 
 owner : this is the case with instruments transferable by 
 delivery, which are negotiable in the fullest sense of the 
 word. 
 
 {b) Cp. Savigny, Obi. § 62. by statute: 3 «& 4 Annec. 8 (inEev. 
 
 (c) Extended to promissory notes Stat.) ss. 1 — 3.
 
 218 
 
 PERSONS AFFECTED BY CONTRACT. 
 
 Negoti- 
 able in- 
 struments. 
 Peculiar 
 and 
 
 extensive 
 rights of 
 bona fide 
 holder. 
 
 The result is that the contract is completely embodied {d) 
 for all practical purposes in the instrument which is the 
 symbol of the contract ; and both the right under the con- 
 tract and the property in the instrument are treated in a 
 manner quite at variance with the general principles of 
 contract and ownership. We give references to a few 
 passages where specimens will be found of the positive 
 terms in which the privileges of hona fide holders of nego- 
 tiable instruments have been repeatedly asserted by the 
 highest judicial authority {e). 
 
 The narrower doctrine which for a time prevailed, re- 
 quiring a certain measure of caution on the part of the 
 holder, is now completely exploded. Nothing short of 
 actual knowledge of the facts affecting his transferor's title 
 will defeat the holder's right (/). 
 
 Moreover, there is no discrepance between common law 
 and equity in this matter. Equity has interfered in cer- 
 tain cases of forgery and fraud to restrain negotiation ; but 
 at law no title to sue on the instrument can be made 
 through a forgery {g) ; and " the cases of fraud where a 
 bill has been ordered to be given up are confined to those 
 where the possession, but for the fraud, would be that of 
 the plaintiff in equity "(/^). The rights of bona fide 
 holders for value are as fully protected in equity as at 
 common law, and against such a holder equity will not 
 interfere ii). 
 
 {d) " Verkorperung der Obliga- 
 tion," Savigny. 
 
 (c) See per Byles, J. Swan v. N. 
 B. Australasian Co. in Ex. Cli. 2 H. 
 & 0. 184, 31 L. J. Ex. 425; per 
 Lord Campbell, Bra)idao v. Harnett, 
 12 CI. & E, 105 ; opinion of Su- 
 preme Court, U.S. delivered by 
 Stoiy, J. Swift V. Tijson, 16 Peters 
 1, 15. The following references as 
 to the nature of the contracts 
 undertaken by the parties to a bill 
 of exchange may be found useful. 
 Acceptor and drawer : Jones v. 
 Broadhurst, 9 C. B. 173, 181 ; Lchel 
 
 V. Tuclcer, L. R. 3 Q. B. 77, 84. 
 Indorser : ib. 83, Benton v. Peters, 
 L. E,. 5 Q. B. 475, 477. 
 
 (/) Goodman v. Harvey, 4 A. & E. 
 876, liaphael v. Bank of England, 17 
 
 C. B. IGl, 175, 25 L. J. C. P. 33. 
 (17) The bona fide holder of an 
 
 instrtunent with a forged indorse- 
 ment may be exposed to considerable 
 hardship. See Bobbett v. Binkett, 1 
 Ex. D. 368. 
 
 [li) Jones V. Lane, 3 T. & C. Ex. 
 in Eq. 281, 293. 
 
 (i) Thiedemann v. Goldschmidt, 1 
 
 D. E. J. 4.
 
 NEGOTIABLE INSTRUMENTS. 219 
 
 The most frequent examples of negotiable instruments Qualities 
 are bills of exchange (of which cheques are a species) (/.•) tiuLie^iu- 
 and promissory notes. Then- exceptional qualities are con- ^rumcnta. 
 cisely stated in the case of Crouch v. Credit Foncier of rules iu 
 England ij) which has boon already referred to : — Cr6diV ^' 
 
 " Eills of exchango aud promissory notes, whether payable to order or 
 to bearer, are by the law nierchaut negotiable in both senses of the word. 
 The person who, by a genuine indorsement, or, where it is payable to 
 bearer, by a delivery, becomes holder, may sue in his own name on the 
 contract, and if he is a bona fide holder for value he has a good title not- 
 withstanding any defect of title in the party (whether indorser or 
 deliverer) from whom he took it." 
 
 "We may here notice the positions contained in the 
 judgment of the Court, which show the limits beyond 
 which the special law of English negotiable instruments 
 cannot be extended. 
 
 1. It is extremely doubtful whether the seal of a cor- 
 poration can be treated as equivalent to signatiu'e for the 
 purpose of making an instrument under it negotiable at 
 common law {ni). 
 
 2. A bond containing a contract not merely to pay the 
 principal but to cause the bonds to be drawn for payment 
 in a specified manner cannot be negotiable, since it violates 
 the general rule that the contract to pay must be uncon- 
 ditional. (It must also be a contract to pay money or to 
 deliver another negotiable security representing money {n) : 
 therefore a promise in writing to deliver 1000 tons of u'on 
 
 {k) Bills of Exchange Act 1882 for the company so that it would 
 
 (45 & 46 Vict. c. 61, s. 73). And be good without the seal, which 
 
 they are equally negotiable: McLean may perhaps be regarded as an 
 
 v. Clydesdale Banking Co. 9 App. ear-mark or memorandum made by 
 
 Ca. 95. the company or its agents for their 
 
 {I) L. R. 8 Q. B. 374. own convenience : see Halford v. 
 
 {m) But if a corporation is ex- Cameron^s Coalbrook, ^-c., Co., 16 Q. 
 
 pressly enabled by statute to issue B. 442, 20 L. J. Q. B. 160, AggsY. 
 
 jDromissory notes under seal they Nicholson, 1 H. & N. 165, 25 L. J. 
 
 may be sued on as ordinary pro- Ex. 348, Balfour v. Ernest, 4 C. B. 
 
 missory notes: Slark v. Highgate N. S. 601, 28 L. J. C. P. 170, 
 
 Archway Co. 5 Taunt. 792, and in Dittton v. Marsh, L. R. 6 Q. B. 361. 
 any case the addition of the seal («) Goodwin v. Robarts, Ex. Ch., 
 
 will not prevent an instrument from L. R. 10 Ex. 337, in H. L. 1 App. 
 
 being a good bill or note if it is Ca. 476. 
 also signed by an agent or agents 
 
 Foncier.
 
 220 PERSONS AFFECTED BY CONTRACT. 
 
 to the bearer is not negotiable and gives no right of action 
 to the possessor) (o). 
 
 3. Mere private agreement or particuJar custom cannot 
 be admitted as part of the law merchant so as to introduce 
 new kinds of negotiable instruments. But the fact that a 
 universal mercantile usage is modern is no reason against 
 its being judicially recognized as part of the law merchant. 
 The notion that general usage is insufficient merely be- 
 cause it is not ancient is founded on the erroneous assump- 
 tion that the law merchant is to be treated as fixed and 
 invariable ( p) . 
 
 The bonds of foreign governments issued abroad and 
 treated in the English market as negotiable instruments 
 are recognized as such by law {q) . So is the provisional 
 scrip issued in England by the agent of a foreign govern- 
 ment as preparatory to giving definitive bonds (r) . Such 
 bonds or scrip, and other foreign instruments negotiable 
 by the law of the country where they are made, may be 
 recognized as negotiable by our Courts though they do 
 not satisfy all the conditions of an English negotiable 
 instrument (s). 
 Nej^oti- From what was said in Goodwin v. Roharts [t) in the 
 
 estoppel.'^ House of Lords it seems that where the holder of an 
 instrument purporting on the face of it to be negotiable, 
 and in fact usually dealt with as such, intrusts it to a 
 broker or agent who deals with it in the market where 
 such usage prevails, he is estopped from denjdng its nego- 
 tiable quality as against any one who in good faith and for 
 value takes it from the broker or agent. 
 
 (o) Di.ron v. Bovill, 3 Macq. 1, {q) Gorgier v. Mieville, 3 B. & C. 
 
 andsec Byleson Bills, Ch. 7. Such 45. 
 
 a contract may however be made (r) Goodwin v. Bobarts, L. R. 10 
 
 assignable free from equities : Mer- Ex. 7G, affd. in Ex. Ch. ib. 337, in 
 
 chant Banking Co. of London v. H. L. 1 App. Ca. 476. 
 
 Phmnix Bessemer Steel Co. 5 Ch. D. (.s) See Grouch v. Credit Fonder, 
 
 205. L. E. 8 Q. B. at pp. 384-5 ; Good- 
 
 {p) Goodwin V. Eobarts, supra, tvin v. liobaris, 1 App. Ca. at pp. 
 
 overruling Crouch v. Credit Fonder 494-5. 
 
 on this point ; Bumball v. Metropo- [t) 1 App. Ca. 486, 489, 493, 497. 
 Ulan Bank, 2 Q. B. D. 194.
 
 TRANSFERABLE SHARES. 221 
 
 It is also to be observed that an instrument wbicb has How in- 
 been negotiable may cease to be so in various ways, !*!"."™!.^*1 
 
 o >/ J > may ccass 
 
 namely — to bo ne- 
 
 Payment by the person ultimately liable {li). ^^ ^'^ 
 
 Restrictive indorsement {x) . 
 
 Crossing with the words " not negotiable " (Bills of Ex- 
 change Act, 1882, 45 & 46 Vict. c. 61, s. 77). A person 
 taking a cheque so crossed has not and cannot give a 
 better title than the person from whom he took it : s. 81. 
 
 To a certain extent, in the case of bills payable to order, 
 indorsement when overdue, which makes the indorsee's 
 rights subject to what are called equities attaching to the 
 bill itself, e. g. an agreement between the original parties 
 to the bill that in certain events the acceptor shall not be 
 held liable, but not to collateral equities such as set- 
 ofE(y). 
 
 We have purposely left to the last the consideration of Transfer 
 certain important classes of contracts which may be roughly tracts^" 
 described as involving the transfer of duties as well as of where 
 rights. This happens in the cases well as 
 
 (A) Of transferable shares in partnerships and com- "o^*^ 
 
 panies. ferred. 
 
 (B) Of obligations (s) attached to ownership or interests 
 in property. 
 
 A. The contract of partnership generally involves per- (A.) Part- 
 sonal confidence, and is therefore of a strictly personal shareThi 
 character. But, " if partners choose to agree that any of ordinary 
 them shall be at liberty to introduce any other person into ships and 
 the partnership, there is no reason why they should not : ^^i^cor- 
 nor why, having so agreed, they should not be bound by companies 
 
 may be 
 
 (m) Lazarus v. Cowie, 3 Q. B. 464. 359, where the authorities are dis- 
 
 As to the possibility of suing on a cussed. 
 
 bill after it has been paid by some {z) We use the word here in its 
 
 other person, see Cook v. Lister, 13 wide sense so as to denote the 
 
 C. B. N. S. 594, 32 L. J. C. P. 121. benefit or burden of a contract, or 
 
 (x) 1 Sm. L. C. 479. both, according to the nature of the 
 
 (?/) See Lx parte Swan, 6 Eq. 344, case.
 
 222 
 
 PERSONS AFFECTED BY CONTRACT. 
 
 made 
 transfer- 
 able at 
 common 
 law. 
 
 But no 
 
 uncertain 
 
 contract 
 
 and no 
 
 real 
 
 anomaly 
 
 in this. 
 
 the agreement " (a). At common law the number of 
 persons engaged in a contract of partnership does not make 
 any difference in the nature or validity of the contract ; 
 hence it follows that if in a partnership of two or three 
 the share of a partner may be transferred on terms agreed 
 on by the original partners, there is nothing at common 
 law to prevent the same arrangement from being made in 
 the case of a larger partnership, however numerous the 
 members may be ; in other words, unincorporated companies 
 with transferable shares are not unlawful at common law. 
 This is worked out by Lord Justice Lindley in another 
 part of his book, where he shows by an ingenious and con- 
 vincing analysis that such a conclusion is demanded by 
 principle, and by an examination of decided cases that it 
 is consistent with authority (i). " Those who form such 
 partnerships, [i. e. partnerships whether small or large in 
 which shares are transferable] and those who join them 
 after they are formed, assent to become partners with any 
 one who is willing to comply with certain conditions " {c). 
 At first sight this may seem to involve the anomaly of 
 a floating contract between all the members of the partner- 
 ship for the time being, who by the nature of the case are 
 unascertained persons when we look to any future tune(G?). 
 But there is no need to assume any special exception from 
 the ordinary rules of contract. It was pointed out by 
 Lord Westbury that the transfer of a share in a partner- 
 ship at common law is strictly not the transfer of the out- 
 going partner's contract to the incoming partner, but the 
 formation of a new contract. " By the ordinary law of 
 partnership as it existed previously to" the Companies 
 Acts " a partner could not transfer to another person his 
 share in the partnership. Even if he attempted to do so 
 with the consent of the other partners, it would not be a 
 
 {a) Lindley, 1. 699. 
 \b) lb. 1. 191-196. 
 (c) lb. 1. 699. 
 
 {d) Cp. per Abbott, C. J. in 
 Josephs V. I'ebrer, 3 B. & C. 639, 613. 
 
 This lineof objection, however, does 
 not appear to have been distinctly 
 taken in any of the cases where the 
 legality of joint-stock companies 
 was discussed.
 
 OBLIGATIONS ATTACHED TO PROPERTY. 223 
 
 transfer of his share, it would in olfect be the creation of a 
 new partnership" (e). This therefore is to be added to 
 the cases in which we have ah-eady found apparent 
 anomalies to vanish on closer examination. 
 
 Notwithstanding the theoretical legality of unincor- Practical 
 porated companies, there does not appear to be any very ^f uniu-^^ 
 satisfactory way of enforcing either the claims of the com- corporated 
 pany against an individual member (/), or those of an would re- 
 individual member against the company (7). But the ™'"°'^^'^^ 
 
 ° . . apart from 
 
 power of forming such companies is so much cut short by compul- 
 the Companies Act 18G2, which renders (with a few ex- v*isK)ns of 
 ceptions) unincorporated and unprivileged (//) partnerships Companies 
 of more than twenty (/) persons positively illegal, that 
 questions of this kind are not likely to have much practical 
 importance in future. In like manner the transfer of 
 shares in companies as well as their original formation is 
 almost entirely governed by modern statutes. 
 
 B. Obligations ex contractu attached to ownership or Obliga- 
 interests in property are of several kinds. With regard to *Vl°'''i^ ^x 
 those attached to estates and interests in land, which alone property. 
 offer any great matter for observation, the discussion 
 of them in detail is usually and conveniently treated as 
 belonging to the law of real property. We shall have to 
 dwell on them however so far as to point out the existence 
 of a real conflict between common law and equity as to the 
 right way of dealing with burdens imposed on the use of 
 land by contract. 
 
 A general statement in a summary form will serve both 
 to shorten our subsequent remarks and to make them 
 better understood. 
 
 (e) TFebb v. Whljfin, L. E. 5 H. L. or be sued by the partnership in the 
 
 711, 727. firm-name, Lindleyl. 212, 469, and 
 
 (/) We have seen [supra, p. 204) 2. 877. 
 that they cannot empower an officer [h) i.e. such as but for the Act 
 
 to sue on behalf of the association. would have been mere partnerships 
 
 {g) See Lyon v. llcujncs, 5 M. & at common law. 
 Gr. 504 ; but perhaps since the (i) Ten in the case of banking : 
 
 Judicature Acts a partner can sue Companies Act 1862, s. 4.
 
 224 
 
 PERSONS AFFECTED BY CONTRACT. 
 
 General 
 
 view 
 
 thereof. 
 
 Obligations attached to ownership and interests 
 in property. 
 
 I. Goods. 
 
 A contract cannot be annexed to goods so as to follow the property in 
 the goods either at common law (k) or in equity (0 . 
 
 By statute 18 & 19 Vict. c. Ill the indorsement of a bill of lading 
 operates as a legal transfer of the contract, if and whenever by the law 
 merchant it operates as a transfer of the property in the goods. 
 
 II. Land (;«). 
 
 a. Relations between landlord and tenant on a demise. 
 Burden : 
 
 of lessee's covenants 
 
 of lessor's covenants 
 
 Benefit : 
 
 of lessee's covenants 
 
 As to an existing thing parcel 
 of the demise, assignees are bound 
 whether named or not. 
 
 As to something to be newly 
 made on the premises, assignees 
 are bound only if named («). 
 
 runs with the reversion. 
 (32 Hen. 8. c. 34.) 
 
 runs with the reversion. 
 (32 Hen. 8. c. 34.) 
 But the statute applies only to demises under seal (o), and includes (by 
 construction in Spencer'' s ca.) only such covenants as touch and concern the 
 thing demised {p). 
 
 of lessor's covenants runs with the tenancy. 
 
 Note. 
 
 (i) The lessee may safely pay rent {q) to his lessor so long as he has no 
 notice of any grant over of the reversion : 4 & 5 Anne c. 3 [in Rev. Stat.: 
 al. 4 Ann. c. 16], which is in fact a declaration of common law : see per 
 WiUes, J., L. R. 5 0. P. 594. 
 
 {k) 3rd resolution in Spencer'' s ca. 
 1 Sm. L. C. 60 ; Splidtv. Boivles, 10 
 East 279. " In general contracts do 
 not by the law of England run with 
 goods:" Blackburn on Sale, 276. 
 
 (l) I)e Mattes v. Gibson, 4 De G. 
 & J. 276, 295. 
 
 (m) On this generally see Dart V. 
 & P. 2. 764 sqq. ; 3rd Report of R. 
 P. Commission, Dav. Conv. 1. 122 
 (4th ed.) ; and above all the notes 
 to Spencer^s ca,. in 1 Sm. L. C. : and 
 also as to covenants in leases the 
 notes to Thurshy v. I'lant, 1 Wms. 
 Saund. 278-281, 299, 305. 
 
 («) As to this distinction, see 1 
 Sm. L. C. 74-77. Wliethcr a cove- 
 
 nant not to assign without licence 
 ' ' extends to a thing in esse parcel of 
 the demise," so as to bind assignees 
 though not named, quccre : ib. 76. 
 
 (o) e.g. Smith v. Eggington, L. R. 
 9 C. P. 145. 
 
 ( p) For the meaning of this see 
 1 Sm. L. C. 72. 
 
 {q) In the case of the lessee's 
 covenants other than for payment of 
 rent, an assignee of the reversion 
 is not bound to give notice of the 
 assignment to the lessee as a con- 
 dition precedent to enforcing his 
 rights : Scaltock v. Uarston, 1 C. P. 
 D. 106.
 
 COVENANTS RUNNING WITH LAND. 225 
 
 (ii) The lessee may still be sued on his express covenants (though 
 under the old jiractice ho could not be sued i?i debt for rent) after an 
 assignment of the term (r) . 
 
 (iii) The doctrine concerning a reversion in a term of years is the 
 same as concerning a freehold reversion («). 
 
 (iv) Where the statute of Henry VIII. does not apply, the assignee of 
 the reversion cannot sue an original lessee who has assigned over all his 
 estate, there being neither jarivity of estate nor privity of contract {t) . 
 
 ^. Mortgage debts. 
 
 The transfer of a mortgage security operates ui equity as a transfer of 
 the debt {n). Notice to the mortgagor is not needed to make the assign- 
 ment valid ; hut without such notice the assignee is boimd by the state 
 of the accounts between mortgagor and mortgagee [x). 
 
 7. Rent-charges and annuities imposed on land independently of 
 tenancy or occupation (//) . 
 
 An agreement to grant an annuity charged on land implies an agree- 
 ment to give a personal covenant for payment (s) ; but by a somewhat 
 curious distinction the burden of a covenant to pay a rent-charge does 
 not run with the laud charged, nor does the benefit of it rim with the 
 rent (a). 
 
 S. Other covenants not between landlord and tenant, relating to land 
 and entered into iclih the owner of it. 
 
 The benefit runs with the covenantee's estate so that an assignee can 
 sue at common law. The lessee for years of the covenantee may enforce 
 the covenant as an assign if assigns are named (5). It is immaterial 
 whether the covenantor was the person who conveyed the land to the 
 covenantee or a stranger (c). The usual vendor's covenants for title come 
 under this head. 
 
 (>•) 1 Sm. L. C. 77, 1 Wms. arbitrary. For a real right is the 
 
 Saund. 298. power of exercising some limited 
 
 (s) 1 Sm. L. C. 70. part of the rights of ownership, and 
 
 [t) AUcock\. Moor house (C. A.), 9 is quite distinct from the right to 
 
 Q. B. D. 366. receive a fixed payment without the 
 
 (ic) This is one of the cases in immediate power of doing any act of 
 
 which the equitable transfer of a o^vnership on the property on which 
 
 debt is not made = a legal transfer the payment is secured, 
 by the Judicature Act, 1S73. In (z) Bower v. Cooper, 2 Ha. 408. 
 
 l^ractice an express assignment of {a) 1 Wms. Saund. 303, 1 Sm. 
 
 the debt is always added : the old L. C. 84. 
 
 power of attorney however is now {b) Taite v. Goding, 1 1 Ch. D. 
 
 supei-fluous. 273. 
 
 (:;;) Jones v. Gibbons, 9 Ves. 407, (c) Contra Sugd. V. & P. 584—5, 
 
 411 ; Matthews v. Wallwyn, 4 Ves. But see 1 Sm. L. C. 80, Dart, 778, 
 
 118, 126. Dav. Conv. 1. 137. The cases from 
 
 (y) These must be regarded as the Tear Books relied on by Lord 
 
 arising from contract (we do not St. Leonards [Pal-enhani' s ca. H. 42 
 
 speak of rents or services incident E. 3. 3, pi. 14, Jlorm-^s ca. M. 2 H. 
 
 to tenure) : the treatment of rent- 4. 6, pi. 25) seem to show only that 
 
 charges in English law as real rights it was once thought doubtful 
 
 or incorporeal hereditaments seems whether the assignee could sue
 
 226 PERSONS AFFECTED BY CONTRACT. 
 
 £. The like covenants entered into by the owner. 
 
 The burden of such covenants appears on the whole not to run with the 
 land in any case at common law {d ) . But where a right or easement 
 a£Pecting land — such as a right to get minerals free from the ordmary 
 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 
 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 compen- 
 Bation and not otherwise {e) . 
 
 The bui-den does run with the land in equity (subject to the limitation 
 to be mentioned), i.e. a court of equity will enforce the covenant against 
 assignees who have actual or constructive (/ ) 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 runs 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 
 whose benefit it is imposed the quasi- dominant tenement. Now restric- 
 tive covenants may be entered into 
 
 (1) By a vendor as 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 with the quasi-servient tenement, and 
 the benefit may run with the quasi-dominant tenement when such 
 is the intention of the parties, and especially when a portion of land is 
 divided into several tenements and dealt with according to a prescribed 
 plan(^). 
 
 AH 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. 
 
 Further, this doctrine applies only to restrictive, not to afiirmative 
 covenants. Thus it does not apply to a covenant to repair. ' ' Only such 
 a covenant as can be comphed with without expenditure of money will 
 be enforced against the assignee on the ground of notice " (A). 
 
 without being also heir of the ori- Fatman v. Harland, 17 Ch. D. 353. 
 
 ginal covenantee. See also 0. W. {y) Eeates v. Lyon, 4 Ch. 218 and 
 
 Holmes, jun., The Common Law, other cases there considered. Har- 
 
 395, 404. rison v. Good, 11 Eq. 338 ; RcnalsY. 
 
 {d] 3rd report of R. P. Commis- CowUshaw, 9 Ch. D. 125, in C. A. 11 
 
 sioners, in 1 Dav. Conv. Contra Ch. D. 866. 
 
 Cooke V. Chllcolt, 3 Ch. D. 691. (//) Lindley, L. J., Eaywood v. 
 
 (f) Axpdcn V. Seddon (C. A.), 1 Brunswick Buildiny Society, 8 Q. B. 
 
 Ex. D. 496, 509. D. 403, 410 ; L. ^ S. IF. Ey. Co. v. 
 
 (/) Wilson V. Hart, 1 Ch. 463 ; Gomm, 20 Ch. D. 562,
 
 COVENANTS RUNNING WITH LAND. 227 
 
 The only points whicli seem to call for more notice here Further 
 are the doctrines as to bills of lading (I.) and restrictive as"to\)ms 
 covenants as to the use of land (II. e) . of lading. 
 
 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" (/). 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 repre- 
 sented " (A-) . And the whole effect of the statute is to 
 attach the rights and liabilities of the shipper's contract 
 not to the symbol, but to the property in the goods them- 
 selves (/) : the right to sue on the contract contained 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" {m). 
 
 As to (II. e) we have to explain the discrepance between As to 'bur- 
 common law and equity, which is a real and serious one. yenants^" 
 The theory of the common law is to the following effect, nmning 
 The normal operation of a contract, as we have already real con- 
 had occasion to sav, is to limit or cut short in some way ^^°*^ ^^* 
 the contracting party's control over his own actions. C. L. and 
 Among other kinds of actions the exercise of rights of o^^hTs. 
 ownership over a particular portion of property may be thus Treatment 
 limited. So far then an owner "may bind himself by question 
 covenant to allow any right he pleases over his property" (») ^* ^- ^' 
 or to deal with it in any way not unlawful or against public 
 
 {%) Per'VfiWes,^ . Fuentes^. Mojitis, v. WilMns, 11 C. B. N. S. 842, 850, 
 
 L. R. 3 C. P. at p. 276. 31 L. J. C. P. 214. 
 
 {k) Giirnci/ v. Bchrcnd, 3 E. & B. [in) The Freedom, L. E. 3 P. C. 
 
 622, 633; 23 L. J. Q. B. 265. 594, 599. 
 
 {}) Fox V. Nott, 6 H. & N. 630, («) EUlv. Tupper, 2 H. & C. 121, 
 
 636, 30 L. J. Ex. 269 ; Smurthwaitc 127, 32 L. J. Ex. 217. 
 
 u2
 
 228 PERSONS AFFECTED BY CONTRACT. 
 
 policy (o) . But if it be sought to annex such an obligation 
 to the property itself, this is |jr«w« facie a considerable 
 departure from the ordinary rules of contract, and to be 
 justified only by clear convenience. How then does the 
 matter stand in this respect ? 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 practically a burden on the freedom of ownership. 
 Now the extent to which the law regards such burdens as 
 convenient 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 rights in realiena 
 cannot therefore be extended at the arbitrary discretion of 
 private owners : " it is not competent for an owner of land 
 to render it subject to a new species of burden at his fancy 
 or caprice" (5'). Still less, of course, is it competent for 
 people to create new kinds of tenure or to attach to pro- 
 perty incidents hitherto unknown to the law. But if it is 
 not convenient or allowable that these things should be 
 done dii-ectly in the form of unheard of easements or the 
 like, neither can we hold it convenient or allowable that 
 they should be done indirectly in the form of obligations 
 
 (0) It is not unlawful for a land- C. B. N. S. 91, 31 L. J. C. P. 226. 
 
 owner to let all his land lie waste ; Eights of this kind are to be care- 
 
 bu la covenant to do so would pro- fully distinguished from those 
 
 babiy be invalid. created by grants in gross ; see per 
 
 (;;) Cp. Savigny, Obi. 1. 7 : and Willes, J. %h. 12 C. B. N. S. 111. 
 
 for a singular coincidence in detaU The Coui-ts might have held that 
 
 D. 8. 3. de sei-v. praed. rust. 5 § 1, new negative easements might be 
 
 6 pr. = Clayton v. Corby, 5 Q. B. created, but not positive ones, but 
 
 415, 14 L. J. Q. B. 304. this solution does not seem to have 
 
 {(j) Per Martin, B. Nuttall v. ever been proposed : and the whole 
 
 Braccwdl, L. R. 2 Ex. 10; for the subject of negative easements is 
 
 C. L. principles generally sec Ack- still obscure, as is shown by the 
 
 royd V. Smith, IOC. B. 164, 19 L.J. widely different o^jiuions held in 
 
 C. P. 315 ; Bailey v. Stephens, 12 Balton v. Angus, G App. Ca. 740.
 
 COVENANTS RUNNING WITH LAND. 22l> 
 
 created by contract but annexed to ownership. If the 
 burden of restrictive covenants is to run with land, people 
 can practically create new easements and new kinds of 
 tenure to an indefinite extent. Such appears to bo the 
 view of legal policy on which the common law doctrine 
 rests : we say of legal policy, for it would bo a groat mistake 
 to treat the matter as one of merely technical distinctions. 
 
 On the other hand the Court of Chancery treated the In equity 
 question differently, looking not so much at general poHcy 
 as at individual rights. An owner of land has bound 
 himself by contract to limit his use of that land in a par- 
 ticular manner : why should his successors in title not be 
 bound also, save in the case of a purchase for value with- 
 out notice of the restriction ? It is no hardship on them ; 
 for those who buy the land subject to the restriction will 
 pay so much the less, and the intention of the parties would 
 be frustrated if contracts of this kind were considered merely 
 personal. The history of the doctrine is somewhat curious. 
 Lord Brougham adopted and enforced what we have called 
 the common law theory in an elaborate judgment which 
 seems to have been intended to settle the question (r) . But 
 this judgment, though treated as an authority in courts of 
 law (.s), has never been followed in courts of equity. After 
 being disregarded in two reported cases (/) it was overruled 
 by Lord Cottenham in Tnlk v. Moxhay {ii), now the leading 
 case on the subject. The most important of the recent 
 cases are Keates v. Lyon (x) (where the authorities are 
 collected), UayicoodY. Bnoisuielc Building Society {y), which 
 decided that the rule applies only to negative covenants, 
 and Harrison v. Good (s). This last decided that when a 
 
 (r) Xcp2Kl V. Sailey, 2 M. & K. was in 1834. 
 
 527. {u) 2 Ph. 774. See per Fry, J, 
 
 (s) mil V. Tapper, 2 H. & C. 121, in ZtiTcer v. Dennis, 7 Ch. D. at p. 
 
 32 L. J. Ex. 217. 235. 
 
 {t) Whatman v. Gibson, 9 Sim. {x) 4 Ch. 218. 
 
 196 (1838) ; Mann v. Stephens, 15 (y) 8 Q. B. D. 403 (C. A.). 
 
 Sim. 377 (1846) : Keppel v. Bailei/ [z] 11 Eq. 338, dist. Master v.
 
 230 PERSONS AFFECTED BY CONTRACT. 
 
 vendor sells land in building lots and takes restrictive 
 covenants in identical terms from the several purchasers, 
 neither reserving any interest nor entering into any 
 covenant himself, this will enable the owner for the time 
 being of one lot under the title thus created to enforce 
 the covenant in equity against the owner of another lot : 
 nor can the vendor release the covenant to any purchaser 
 or his successors in title ^dthout the consent of all the rest. 
 Thus the practical result is that a great variety of restric- 
 tions on the use of land which could not be imposed by 
 way of easement or the like may be imposed by way of 
 covenant for an indefinite length of time, purchases for 
 value without notice of the restriction being obviously not 
 probable events. So far as courts of equity have omitted 
 to consider whether such a result is consistent with the 
 general principles of the law concerning the tenure and 
 enjoyment of property, perhaps it may be said that the 
 view they have taken is really the more technical of the 
 two. 
 
 The ques- According to the doctrine of equity, the intention of the 
 tion IS at parties is to fix a particular restriction on the use of the 
 one of land not merely on the original contracting party, but on 
 of law."^" his successors in title : then why not give effect to that 
 intention ? The common law doctrine admits that such 
 is the intention, but refuses to give effect to it because it 
 tends to multiply undue restrictions on the freedom of 
 ownership, in contravention of the general spirit of the 
 law (a). But the real question involved in this conflict is 
 in truth of an economic rather than a legal kind : namely 
 whether it is or is not desirable that private persons should 
 have the power of dedicating land to be used in a parti- 
 cular way for an indefinite time. Such questions of 
 
 Eamard, 4 Ch. D. 718; Itoials v. 6 App. Ca. 560. 
 
 Cozi'^isAr/!*, Ch. D. 125, in C. A. 11 {n) Sec the observations of the 
 
 Ch. D. S'iG. For the corrL'Spondiiig Court of Ex. Ch. in Bennett v. 
 
 Scottish doctriue see fi^j*fo^Jv.Ztf(/i;«e, Athcrton, L. R. 7 Q. B. 325.
 
 COVENANTS RUNNING WITH LAND. 
 
 231 
 
 public Gconomy cannot be adequately dealt with by means 
 of the rules of ordinary private law concerning owner- 
 ship and contract, and we need not be surprised if the 
 purely legal discussion of them fails to give satisfactory 
 results (b). 
 
 (b) It is worth while to note that 
 even if Equity had not refused to 
 follow the law on this subject, the 
 sort of restrictions in question might 
 still be effectually created with 
 little more trouble than at present. 
 For instance, when it was desired 
 to impose such restrictions on a 
 sale of laud in lots, long leases at 
 nominal rents might be substituted 
 for conveyances in fee simple. The 
 restrictive covenants would then 
 run with the reversion at law by 
 the statute of lien. 8, and provision 
 
 might be made for lessees enforcing 
 them against one another in the 
 name of the reversioner. On the 
 other hand, the Court may at its 
 discretion refuse to enforce restric- 
 tive covenants when by lapse of 
 time or change of circumstances 
 they have become obsijlete, vexa- 
 tious, or useless. iJu/ie of Bedford 
 V. Trustees of British Museum, 2 M. 
 & K. 552 ; per James, L.J., lienals 
 V. CowlisJiaiv, 11 Ch. D. at p. 808 ; 
 i:iayers v. CoUyer, 24. Ch. D. 180.
 
 ( 232 ) 
 
 CHAPTER VI. 
 
 Unlawful Agreements. 
 
 Subject- We have already seen that an agreement is not in any 
 perfoTm-^ case enforceable by law without satisfying sundiy eon- 
 ance a ditions : as, being made between capable parties, being 
 positively sufficiently certain, and the like. If it does satisfy these 
 forbiddeu, cQi^^^itions, it is in general a contract which the law com- 
 
 or part oi ' _ '^ 
 
 a transac- mands the parties to perform. But there are many things 
 as°a whole whicli the law positively commands people not to do. The 
 is for- reasons for issuing such commands, the weight of the sanc- 
 iiliegai). tious 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 highway, 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 there- 
 with as to be in substance part of the same transaction, the 
 law cannot command the parties to perform that agree- 
 ment. It will not always command them not to perform 
 it, for there are many cases where the performance of the 
 agreement is not in itself an offence, though the complete 
 execution of the object of the agreement is : but at all 
 events it will give no sort of assistance to such a transac- 
 tion. Agreements of this kind are void as being illegal in 
 the strict sense. 
 Not posi- Again, there are certain things which the law {a) does 
 bidden but not f orbid in the sense of attaching penalties to them, but 
 %mmorai. -^jj^ic]! are violations of established rules of decency, morals, 
 
 («) i.e. tlie common law. But qu. would not constitute an offence 
 wbctlior the common law could take against either common or ecclesias- 
 notice of anything as immoral which tical law.
 
 CLASSIFICATION. 233 
 
 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 law will not aid it, and yet 
 that the law will not immediately punish it" [b). Agree- 
 ments whoso subject-matter falls within this description 
 are void as being immoral. 
 
 Further, there are many transactions which cannot fairly Not posi- 
 be brought within either of the foregoing classes, and yet bidden 
 cannot conveniently be admitted as the subieet-mattcr of but(7i/tfw.s< 
 
 , . public 
 
 valid contracts, or can be so admitted only under unusual policy. 
 restrictions. It is doubtful whether these can be com- 
 pletely 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 com- 
 monwealth to foreign states : 
 
 Matters touching the good government of the common- 
 wealth and the administration of justice : 
 
 Matters affecting particular legal duties of individuals 
 whose performance is of public importance : 
 
 Things lawful in themselves, but such that individual 
 citizens could not without general inconvenience be allowed 
 to set bounds to their 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) . 
 
 Agreements falling within this third description are void 
 as being agnlnnt ivihlic policij. 
 
 We have then in the main three sorts of agreements Summary. 
 which are unlawful and void, according as the matter or 
 purpose of them is — 
 
 A. Contrary to positive law. {lUegal.) 
 
 {b) Bramwcll, B. Covfan v. Mil- none other than to set bounds to 
 
 bourn, L. R. 2 Ex. at p. 236. the party's freedom of action as 
 
 (c) We have already seen that regards the subject-matter of the 
 
 the specific operation of contract is contract.
 
 234 UNLAWFUL AGREEMENTS. 
 
 B. Contrary to positive morality recognized as sueli by 
 law. [IinmoraL) 
 
 C. Contrary to tlie 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 actions of individual citizens. {Against 
 public jyolici/.) 
 
 Caution as The distinction here made is in the reasons which 
 to use of determine the law to hold the aOTeement void, not in the 
 
 terms. " ' 
 
 nature or operation of the law itself : the nullity of the 
 agreement itself is in every case a matter of positive law. 
 "When we speak for shortness of the agreement itself as 
 contrary to positive law, to morality, or to public policy, 
 as the case may be, we must bear in mind that this is an 
 inexact and merely symbolic mode of speech. 
 
 The ar- The arrangement here given is believed to be on the 
 
 range- whole the most convenient, and to represent distinctions 
 
 ment only . ' . , t • • 
 
 approxi- which are in fact recognized m the decisions that consti- 
 mate. ^^^^^ ^-^^ j^^^^ ^^ ^^^ subjcct. But like all classifications it 
 is of course only approximate : and here more especially, 
 where there is perhaps a wider field for judicial discretion 
 than in any other part of the law, one 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 statutes 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 a linear chain of authority. Wo have then to
 
 CONTRARY TO POSITIVE LAW. 235 
 
 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 unlawful 
 agreements indifferently will be reserved, so far as prac- 
 ticable, until we have gone through the several classes in 
 the order above given. 
 
 A. Agreements confranj to posifive law. Classes of 
 
 unlawful 
 
 1. The simplest case is an agreement to commit a crime agree- 
 
 • T J. 1 1 IV ments. 
 
 or indictable oilcnce : 
 
 " If one bind himself to kill a man, burn a house, trary to 
 maintain a suit, or the like, it is void " (d). f°'^^^^^ 
 
 ' ' ^ ' law. 
 
 With one or two exceptions on which it is needless to i. Agree- 
 dwell, obviously criminal agreements do not occur in our "^®°* *° 
 
 . .... . commit 
 
 own time and in civilized countries, and at all events no offence, 
 attempt is made to enforce them. It is said that in the 
 last century a bill was filed in Chancery by a highwayman 
 against his fellow for a partnership account, but the story 
 is more than doubtful (c). The question may arise, how- Sometimes 
 ever, whether a particular thing agreed to be done is or is perform- 
 not an offence, or whether a particular agreement is or is ance of 
 not on the true construction of it an agreement to commit ■v^^ould bo 
 an offence. In the singular case of Mayor of Norwich offence. 
 V. Norfolk Rij. Co. (,/"), the defendant company, being NoJwJch^ 
 authorized to make a bridge over a navigable river at one ^- Norfolk 
 particular 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, but — complete them in a particular manner, 
 
 [d) Shepp. Touchst. 370. from this ? The case was cited with 
 
 {e) See Lindley, 1. 183. Lord apparent gravity by Jessel, M.R. 
 
 Keny on once said by way of illus- in Sykes v. Bcadon, 11 Ch. D. at 
 
 tration, it appears, that he would p. 195. 
 
 not sit to take an account between (/) 4 E. & B. 397, 21 L. J. Q. B. 
 
 two robbers on Hounslow Heath. 105. 
 
 May not the legend have arisen
 
 2.16 UNLAWFUL AGREEMENTS. 
 
 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 corpora- 
 tion £1,000 if the works should not be completed within 
 twelve months, whether an Act of Parliament should within 
 that time be obtained to authorize them or not. The cor- 
 poration sued on this covenant, and the company 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 obtain the Act. " Where 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 reduction 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 agree- 
 ment 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 presume 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 covenanted with A. that within twelve 
 calendar months he would mm-der 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 B. 
 did not murder C. within the twelve calendar months he 
 had not paid A. the £1000 " {g). 
 
 iff) 4 E. & B. 441.
 
 AGREEMENTS TO COMMIT WRONG. 237 
 
 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. 
 
 Moreover a contract may be illegal because an offence is When tho 
 contemplated as its ulterior result, or because it invites to objccUs 
 the commission of crime. For example, an agreement to an offence. 
 pay money to A.'s executors if A. commits suicide would 
 be void {i) ; and although there is nothing unlawful in 
 printing, no right of action can arise for work done in 
 printing a criminal libel (k) . But this depends on the more 
 general considerations which we reserve for the present. 
 
 2. Again an agreement will generally be illegal, though 2. Agree- 
 the matter of it may not be an indictable offence, and p^^|^ 
 though the formation of it may not amount to the offence wrong to 
 of conspii-acy, if it contemplates (/) any civil injury to sous is 
 third persons. Thus an agreement to divide the profits of "^'*^'^- 
 a fraudulent scheme, or to carry out some object in itself 
 not imlawful by means of an apparent trespass, breach of 
 contract, or breach of trust is unlawful and void (;;?). A. 
 
 {h) Not only was the Court mise, but yet may well be liable in 
 
 equally divided, but a perusal of the damages for the breach. Mil heard 
 
 judgments at large will show that v. Littlcwood, 5 Ex. 775, 20 L. J. 
 
 no two members of it really looked Ex. 2. See fui'ther at end of this 
 
 at the case in the same way. The chapter. 
 
 reporters (4 E. & B. 397) add not [ni) An agreement to commit a 
 
 without reason to the head-note: civdinjury is a conspiracy in many, 
 
 Et quaere inde. but it seems imi^ossible to say 
 
 («) Per Bramwell, L. J. 5 C. P. j)recisely in what, cases. See the 
 
 D. at p. 307. title of Conspiracy in Eoscoe's 
 
 (k) Foplctt V. Stochdale, 1 E,. & Digest, (ed. Horace Smith, 1884). 
 
 M. 337. An agreement to commit a tres- 
 
 {!) If A. contracts with B. to do pass likely to lead to a breach 
 
 something which in fact, but not of the peace, llej. v. Rowlands, 
 
 to B.'s knowledge, woidd involve a 17 Q. B. G71, 686, 21 L. J. M. C. 
 
 breach of contract or trvxst, A. 81 — or to commit a civil wrong 
 
 cannot lawfidly perform his pro- by fraud and false l^retencas, Iteg.
 
 238 UNLAWFUL AGREEMENTS. 
 
 applies to his friend B. to advance ]iim the price of certain 
 goods which he wants to buy of C. B. treats with 0. 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). 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 pre- 
 Ao-ree- judice of those others' interest. Such are in fact the cases 
 meiitin Qf agreements " in fraud of creditors " : that is, where 
 
 iraiid 01*^. 
 
 creditors is there IS an arrangement between a debtor and the general 
 
 ^ body of the creditors, but in order to procure the consent 
 
 of some particular creditor, or for some other reason, the 
 
 debtor or any person on his behalf 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 
 
 And other be repaid (o). Moreover, the other creditors who know 
 
 creditors nothing of the fraud and enter into the arrangement on 
 
 by the the assumption " that they are contracting on terms of 
 
 tion^°*^^" equality as to each and all " are under such circumstances 
 
 not bound by any release they give (p). And it will not 
 
 do to say that the underhand bargain was in fact for the 
 
 benefit of the creditors generally, as where the preferred 
 
 creditor becomes surety for the payment of the composition, 
 
 and the real consideration for this is the debtor's promise 
 
 to pay his own debt in full ; for the creditors ought to 
 
 V. Warhurton, L. R. 1 C. C. R. 274, iudemiiify trustees against formal 
 
 cp. Itcy. V. Aspbiall, 2 Q. B. D. breaches of trust are in practice 
 
 at p. 59 — is a conspiracy. An constantly assumed to be valid in 
 
 agreement to commit a simple equity as well as at law. 
 
 breach of contract is not a con- («) Jackaon v. Duchaire, 3 T. H. 
 
 spiracy. Before the C. L. V. Act 551. 
 
 a court of common law could not (o) McKewanY. Sanderson, 15 Eq. 
 
 take notice of an agreement being at p. 234, per Malins, V.-C. 
 
 in breach of trust ku as to hold it (;;) Danglish v. Tenncnt, L. R. 2 
 
 illegal : Warwick v. JilchardsoH, 10 Q. B. 49, 54. 
 
 M. & W. 284, and agreements to
 
 AGREEMENTS IN FRAUD OF CREDITORS. 239 
 
 have the means of exercising their own judgment ('/). 
 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 compound- 
 ing debtor is master of the assets and may apply them as 
 he will (r). 
 
 The principle of these rules was thus explained by 
 Erie, J. in MallaUeu v. Hodgson (s) : — 
 
 " 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 debtor 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 altogether void — not only can he take no advantage from it, 
 but he is also to lose the benefit of the composition {t). 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 [u) to Soivden v. UaUjh {t) and Bradsliaw v. Brad- 
 shaw " {x). 
 
 From the last cited case {ot) it seems probable, though it 
 is not decided, that when a creditor is induced to join in 
 a composition by having an additional payment from a 
 stranger without the knowledge of either the other 
 creditors or the debtor, the debtor on discovering this may 
 refuse to pay him more than with such extra payment 
 will make up his proper share under the composition, or 
 may even recover back the excess if he has paid it involun- 
 tarily, e.g. to bond fide holders of bills given to the creditor 
 under the composition. 
 
 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 (y). 
 
 (?) Woody. Barlcer, 1 Eq. 139. {t) Ilou-den v. RaiffJi, 11 A. & E. 
 
 (r) Ex parte Burrell (C. A.) 1 Ch. 1033. 
 
 D. 537. («) 4 East, 372 : showing that the 
 
 (s) 16 Q. B. 689, 20 L. J. Q. B. advantage given to the preferred 
 
 339, 347. See further Ex parte creditor need not be in money. 
 
 Oliver, 4 De G. & Sm. 354. {x) 9 M. & W. 29. 
 
 (/) Uiggins v. Fitt, 4 Ex. 312.
 
 240 UK LAWFUL AGREEMENTS. 
 
 A secret agreement by a creditor to witlidraw his oppo- 
 sition 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 (y), nor whether 
 the consideration offered to the creditor for such with- 
 drawal is to come out of the debtor's assets or not (s) ; and 
 this even if it is part of the agreement that the creditor 
 shall not prove against the estate at all {a) . In like 
 manner if a debtor executes 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 (b). 
 
 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 agreements to commit 
 civil injuries. But a composition with creditors 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 by the law (c). Public policy, 
 therefore, as well as private right, requires that such a 
 proceeding should be conducted with good faith and that 
 no transaction which interferes with equal justice being 
 Fraud on done therein should be allowed to stand. The doctrine of 
 ties not^to f^aud on third parties, as it may be called, is however not 
 be pre- to be extended to cases of mere suspicion or conjecture. A 
 Tvmn mere possibility that the performance of a contract may injm-e 
 possibili- third persons is no ground for presuming that such was 
 the intention, and on the strength of that presumed inten- 
 tion holding it invalid between the parties themselves. 
 
 ' ' Wliero an instriiment between two parties has been entered into for 
 a purpose which may be considered fraudulent as against some third 
 
 {>/) JTif/ffins V. rut, 4 Ex. 312. (c) Bankruptcy Act, 1883, ss. 18, 
 
 (z) Hall V. Dijson, 17 Q. B. 785, 19. Since this Act there is a uota- 
 
 21 L. J. Q. B. 224. bio increase of private compositions 
 
 (a) McKcican v. Sanderson, 20 Eq. independent of the Act, which may 
 
 65. lead to the revival of various com- 
 
 {h) Blaclchch v. Bohic, 1 C. P. D. mon law questions. 
 265.
 
 DEALINGS TO PKEJUDICE OF SURETY. 241 
 
 person, it may yet bo binding, according to the true construction of its 
 language, aa between themselves." 
 
 Nor can a supposed fraudulent intention as to third 
 persons (inferred from the general character and circum- 
 stances of a transaction) bo allowed to determine what the 
 true construction is (d). 
 
 3. There are certain cases analogous enough to the 3. Certain 
 foregoing to call for mention here, thougli not for any full analogous 
 treatment. Their c-eneral type is this : There is a contract pature as 
 
 . . 1 . 1 . 1 . . involving 
 
 giving rise to a continuing relation to which certain duties " fraud on 
 are incident by law ; and a special sanction is provided for ^^^^ ,?^^' 
 those duties by holding that transactions inconsistent with 
 them avoid tlie original contract, or are themselves void- 
 able at the option of the party whose rights are infringed. 
 AVe have results of this kind from 
 
 (a). Dealings between a principal debtor and creditor to 
 the prejudice of a surety : 
 
 (i3). Dealings by an agent in the business of the agency 
 on his own account: 
 
 (y). Voluntary settlements before marriage "in fraud of 
 marital rights." 
 
 In the first case the improper transaction is as a rule 
 valid in itself, but avoids the contract of suretyshij). In 
 the second it is voidable as between the principal and the 
 ao-ent. In the third it is voidable at the suit of the 
 
 o 
 husband. 
 
 a. "Any variance made without the surety's consent in Dealings 
 
 the terms of the contract between the principal debtor and principal 
 
 the creditor discharges the surety as to transactions sub- creditor 
 
 sequent to the variance "((') , unless it is evident to the to preju- 
 
 Court "that the alteration is unsubstantial, or that it can- <^ice of 
 
 surety, 
 not be otherwise than beneficial to the surety " (_/'). The 
 
 {(l) Shaw V. Jeft'!!/, 13 IMoo. P. (/) Eolme v. Bmnskill (C. A.) 3 
 
 C. 432, 455. Q. B. D. 495 (diss. Brett, L.J.), 
 
 (c) Indian Contract Act, s. 133. overruling on this -^^OYat Sanderson 
 
 V. Aston, L. R. 8 Ex. 73. 
 
 P. R
 
 243 UNLAWFl'L AGKEEMENTS. 
 
 surety is not the less discliarged " even though the original 
 agreement may notwithstanding such variance be substan- 
 tially performed " (^) . 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 Parlia- 
 ment the nature of the office is so changed that the duties 
 are materially altered, so as to affect the peril of the sure- 
 ties, the bond is avoided " {//). But when the guaranty is 
 for the performance of several and distinct duties, and 
 there is a change in one of them, or if an addition is made 
 to the duties of the principal debtor by a distinct contract, 
 the surety remains liable as to those which are unal- 
 tered (/). 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 which is the discharge of the 
 principal debtor " (/.). 
 
 "A contract between the creditor and the principal 
 debtor, by which the creditor makes a composition with, 
 or promises to give time to or not to sue the principal 
 debtor, discharges the siu-ety, unless the surety assents to 
 such contract" (/), or unless in such contract the creditor 
 reserves his rights against the surety (;;?), in which case 
 the surety's right to be indemnified by the principal 
 debtor continues (n). One reported case constitutes an 
 
 ((/) Per Lord Cottenham, Bonar (I) I. C. A. s. 135. Oakeley t. 
 
 V. lUacdonald, 3 H. L. C. 226, 238. rashellcr, 4 CI. & F. 207 ; Oriental 
 
 (/;) Osicnhl V. Mayor of Berwick- Financial Corporation v. Overend, 
 
 on-Ticced, 5 H. L. 0. 856 ; BybusY. Gnmey ^- Co., L. R. 7 H. L. 318 ; 
 
 Gihh, 6 E. & B. 902, 911, 26 L. J. Green v. TFynn, 4 Ch. 204 ; Bateson 
 
 Q. B. 41 ; Mayor of Cambridqe v. v. Goslinr/, L. R. 7 C. P. 9. 
 
 J)en»is, E. B. & E. OGO, 27 L. J. (w) Whether the surety knows of 
 
 Q. B. 474. it or not : JFc/jb v. Hewitt, 4 K. & J. 
 
 (i) Harrison v. Seymour, L. R. 438, 442 ; and see per Lord Hather- 
 
 1 C. P. 518; Skillvtt v. Fletcher, ley, 7 Ch. 150. 
 
 L. R. 1 C. P. 217, 224, in E.x. Ch. («) Close v. Close, 4 D.M. G. 176, 
 
 2 C. P. 469. 185. The reasonableness of tlie rule 
 (A-) I. C. A. s. 131. Juarsley v. is open to question (it lias been 
 
 Cole, 16 JL i: W. 128; Crayoe v. carried "to tlic vor<>-e of sense," 
 
 Jones, L. R. 8 Ex. 81. Brett, L. J. 3 Q. B. D. at p. 509),
 
 DEAIJNGS HY AGENT AGAINST DUTY. 24-3 
 
 apparent exception to the general rule, but is really none, 
 as there the nominal giving of time liad in substance the 
 effect of accelerating the creditor's remedy (o). 
 
 " If the creditor does any act Avhich is inconsistent with 
 the rights of tlie surety, or omits to do any act which his 
 duty to the surety requires him to do, and the eventual 
 remedy of the surety himself against the principal debtor 
 is thereby impaired, the siu-ety is discharged " (p). 
 
 "A surety is entitled to the benefit of every security 
 which the creditor has against the principal debtor at the 
 time when the contract of suretyship is entered into, 
 whether the surety knows of the existence of such security 
 or not ; and if tlie 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 " (q). Not 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 creditor's hands, 
 will have this effect {>■). 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 (s) . 
 
 /3. " If an agent deals on his own account in the business Dealings 
 of the agency without first obtaining the consent of his iifthf""* 
 principal and acquainting hitn with all material circum- matter of 
 
 but it is firmly established. Sec paid, IMerc. Law Amendment Act 
 
 per Cur. in Su;ire v. Redman, 1 Q. 185(3, 19 & 20 Vict. c. 97, s. 5. And 
 
 B. D. 541-2. see 2 Wh. & T. L. C. (4th ed.) 1002. 
 
 (o) Ihilme V. Coles, 2 Sim. 12. During the cm-rency of a bill of 
 
 (/y) I. C. A. s. 139 ( ^ Story, Eq. exchange an indorser is not a surety 
 
 Jur. §32 5 nearly); Tl'atxonv.AlIcock, for the acceptor. But after notice 
 
 4 D. M. Gr. 242, supra, p. 160; of dishonour he is entitled in like 
 
 JSurf/css Y. Ere, 13 Eq. 450 ; F/iill'ps manner as if he were a surety to the 
 
 V. I'oxall, L. R. 7 Q. B. 6G6 ; Sun- benefit of all payments made and 
 
 derson v. Aston, L. E,. 8 Ex. 73. securities given by the acceptor to 
 
 [q) I. C. A. s. 141. MayJieiv v. the holder: Duncan, Fox <$• Co. v. 
 
 Crichett, 2 Swanst. 185, 191 ; Wulff North ^- South Wales Bank, 6 App. 
 
 V. Jay, L. R. 7 Q. B. 75G, 762; Ca. 1, revg. s. c. inC. A. llCh. D. 
 
 liccherraise v. Lewis, L. R. 7 C. P. 88. 
 
 377 ; securities now subsist not- (r) Pledge v. Buss, Johns. 663. 
 
 withstanding payment of the debt (s) Wardy. Bank of 2iew Zealand, 
 
 for the benefit of a surety who has (J. C.) 8 App. Ca. 755, 
 
 II 
 
 O
 
 244 UNLAWFUL AGREEMENTS. 
 
 the agency stances wliicli have come to his own knowledge on the 
 accountr^ subject, the principal may repudiate the transaction" (/) : 
 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 (ii). 
 
 "If an agent without the knowledge of his principal 
 deals in the business of the agency on his own account 
 instead of on account of his principal, the principal is 
 entitled to claim from the agent any benefit which may 
 have resulted to him from the transaction " (x). 
 
 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 conversely : " He who 
 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 him- 
 self into a pm-chaser unless he can make it perfectly clear 
 that he furnished his employer with all the knowledge 
 which he himself possessed" (//). "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 em- 
 ployed to buy become himself the seller, without distinct 
 notice to the principal, so that the latter may object if he 
 think proper " (z). 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 
 
 {t) I. C. A. s. 215. vc7!/a!J, 11 CI. & F. 714, 732. 
 
 («) See Story on Agency § 210; (z) Per Willes, J. in MoUett v. 
 
 Ex parte Lacoj, G Ves. G26. Robinson, L. R. 5 G. P. at p. 655. 
 
 {x) I. C. A. 8. 216. Cp. Guest v. Snujthe, 5 Ch. 551, per 
 
 (Z/) Whiehcotey. Lawrence, 3 Ves. Giffard, L. J.; Sharnian v. Brandt, 
 
 750; Loivther v. Loivther, 13 Ves. L. K. G Q. B. 720. 
 
 95, 103; and sec Charter v. Tre-
 
 DEALINGS BY AGEiNT AGAINST DUTY. 245 
 
 dealing in that traJo or market tlirougli a Lroker, Lut 
 himself ignorant of the usage {((). 
 
 The rule is not arbitrary or technical, hut rests on the 
 principle that an agent cannot he allo^ved 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 injmy 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 that so long as a contract for sale made 
 by an agent remains executory he cannot re-purchase the 
 property from his own purchaser except for the benefit of 
 his principal (b). 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 (c). Another 
 branch of the same principle is to be found in the rules 
 against trustees and limited owners renewing leases or 
 purchasing reversions for themselves {d). 
 
 Again : " It may be laid down as a general principle 
 that in all cases where a person is either actually or con- 
 structively an agent for other persons, all profits and ad- 
 vantages made by him in the business beyond his ordinary 
 compensation are to be for the benefit of his employers" (c). 
 
 {a) Robinson v. Mollett, L. R. 7 {h) Parker v . McKenna , 10 Ch. 96, 
 
 H. L. 802, 838 ; and further as to 118, 124, 125. 
 
 alleged customs of this kind JDc [c) Gray y. Warner, IQi^ci. 577. 
 
 £i(sschey. AH, 8 Ch. D. 28G. For (d) Notes to Kccch v. Sandford, 
 
 the special application of the rule in 1 Wh. & T. L. C. The last casG 
 
 to the duty of directors of com- on the subject is Trumper v. 
 
 panics, 7r«//'«ca. 10 Ch. 593; yl/i/o« Trumper, 14 p]q. '295, 8 Ch. 870. 
 
 Steel Wire Co. v. Martin, 1 Ch. D. On the general rule see also JLtr.sh 
 
 at p. 585, per Jessel, M. It. ; as to v. Wliitmorc, (Sup. Court, U. S.) 
 
 promoters. New Sombrero Thosphate 21 Wall. 178. 
 
 Co. V. Erlanger, 5 Ch. D. 73. (c) StoryonAgeucy^^ 2 11, adopted
 
 246 T'NLAWFUL AGRKEMENTS. 
 
 " If a person makes any profit by being employed contrary 
 to bis trust, tbe employer lias a rigbt to call back tbat 
 profit" (/). And it is not enough for an agent wlio is 
 himself interested in the matter of the agency to tell his 
 principal that he has some interest : ho must give full 
 information of all material facts {(j). 
 
 Even this is not all : an agent, or at any rate a pro- 
 fessional adviser, cannot keep any benefit which may 
 happen to result to him from his own ignorance or negli- 
 gence in executing his duty. In such a case he is con- 
 sidered a trustee for the persons who woidd be entitled to 
 the benefit if he had done his duty properly (//). 
 Katm-e of In this class of cases the rule seems to be that the 
 applicable, transaction improperly entered into by the agent is void- 
 able so far as the natm'C of the case admits. Where it 
 cannot be 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 the principal and cognizant of the agent's employ- 
 ment, and there are dealings between the tliii-d 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 shoidd 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 arrange- 
 ment was contemplated when the contract was entered 
 into ; it was held that company B. might rescind the con- 
 tract (/). 
 
 by the Court iu Jforlson v. Tliomp- Dunne v. English, IS Eq. o24, 534. 
 
 son, L. E. 9 Q. B. 4S0, 485, where (A) Bumaj v. Wilford, 2 CI. & F. 
 
 several cases are collected. 102. Cp. Corky v. Lord Stafford, 
 
 (/) JIassei/ V. Uaiu's, 7 Ves. ol7, 1 De G. & J. 238. 
 
 320. ((') Fanama ^- S. Tacijic Telegraph 
 
 {g) See authorities collected, and Co. v. India Itubber ^c. Co. 10 Ch. 
 
 observations of tlie Court thereon, 515.
 
 FRAUD ON MAHITAJ. KIGHT. 247 
 
 7. TliG rule as to settlements " in ficaiid of marital Settle- 
 right " was thus given Ly Lord Langdale (/•) : — fraud oT 
 
 "If a woman entitled to property enters into a txxaty for marriage ,,j,,jjf 
 and during the treaty represents to her intended husband that she is so 
 entitled, that upon her marriage he will become entitled y«rf mariti, and 
 if during the same treaty she clandestinely conveys away the property in 
 such manner as to defeat his mai-ital right and secure to herself the 
 separate use of it, and the couceahnent continues till the man-iage takes 
 place, there can bo no doubt but that a fraud is thus practised on the 
 husband and he is entitled to relief " (/). 
 
 Moreover — "If both the projperty and the mode of its conveyance, 
 pending the marriage treaty, were concealed from the intended husband, 
 as in the case of Goddard v. Snoiv (/»), there is still a fraud practised on 
 the husband. The non-acquisition of property of which he had no 
 notice is no disappointment, but still his legal right to property actually 
 existing is defeated " («). 
 
 In order to have such a settlement set aside the husband Conditions 
 
 1 for setting 
 
 must prove— them 
 
 (i) That he was the intended hushand at the date of the aside. 
 settlement — i.e. that there was then a complete contract 
 to many which continued until the man-iage {o). 
 
 (\\) That the settlement was not kno^vn to him till after 
 the marriage [p). 
 
 What if the intended husband knows that some disposi- 
 tion has been or is to be made, but not its contents ? The 
 doctrine as far as it has gone seems to be that sueli knoAv- 
 ledge makes it the duty of the husband to inform Idmself, 
 and if he omits inquiry he cannot afterwards complain {q) ; 
 but if he does inquire, and incorrect information is given, 
 this is equivalent to total concealment (r). According to 
 the modern doctrine no difference is made by collateral 
 
 (/.■) Cp. on this subject Dav.Conv. {p) St. George v. JFake, 1 My. & 
 
 vol. 3, pt. 2. 707. K. 610, 62.5. 
 
 {I) England v. Doicns, 2 Bear. (rj) Wrigley v. Swainson, 3 De Gr. 
 
 522, 528. & Sm. 458. 
 
 {»)) lEuss. 485. See the earlier (/■) Pridcaux v. Lonsdale. 4 Giff. 
 
 authorities there discussed. 159. The Court of Appeal (1 D. 
 
 (;/) 2 Beav. 529. J. S. 433, 438) declined to say any- 
 
 {0) England \. Bouns, supra. Cp. thing on this part of the case, 
 
 Downes y. Jennings, 32 Beav. 290, affirming the decision on the gi-ound 
 
 294, that the settlor herself did not 
 
 understand the effect of her act.
 
 248 UNLAWFUL AGREEMENTS. 
 
 circumstances, " such as tlie poverty of the husband — the 
 fact that he has made no settlement upon the wife— the 
 reasonable character of the settlement [which is im- 
 peached], as in the case of a settlement upon the children 
 of a former marriage " or the like. 
 
 Nevertheless relief may be refused on the ground that 
 the husband's conduct before the marriage has been such 
 as to " put it out of the power of the wife effectually to 
 make any stipulation for the settlement of her property " : 
 as where there has been previous seduction (.s). 
 
 It is said that if the husband discovers the settlement 
 before the marriage takes place, he may rescind the con- 
 tract to marry, and will have a good defence to an action 
 for breach of promise of marriage (/). This seems only 
 reasonable, but we do not know of any direct authority for 
 Semhlc, it. Finally we venture to suggest that the doctrine might 
 d 'le^ir" ^^ ^® P^^ *^^ ^ broader ground than appears in the cases, 
 wider. The contract to marry gives rise to a new status between 
 
 the parties, to which mutual duties are incident beyond 
 the simple performance of the contract by marriage at the 
 time expressed or contemplated {u) . Among these may 
 fairly be reckoned the observance of the utmost good faith 
 in all things, and in particular the duty of not making 
 without the other party's consent any disposition of pro- 
 perty of such a permanent and considerable kind as might 
 affect the order and condition of the futm-e household. 
 Such conduct shows a want of confidence which the other 
 party is entitled to treat as incompatible with the marriage 
 contract. Looking at it in this way, there seems no reason 
 why the rule should not apply to both parties equally. 
 
 (.s) Taylor v. I'ugh, 1 Ha. GOS, aside or rescinding' voidable trans- 
 
 614-6. In Bownes -v. Jennings, 2i'l actions, may be lost by acquiescence 
 
 Beav. 290, no importance was at- or delay amounting to proof of 
 
 tached to the parties having lived acquiescence : Loader v. Clarke, 2 
 
 togetlier before marriage. IBut the Mac. & G. 382. 
 
 cinnim stances were such as to show {I) By Sir John Leach, M. R. in 
 
 that their conduct was deliberate. 8t. George v. ITti/ie, supra. 
 
 The husband's right to set aside the («) Frosty. Knight^ L. li. 7 Exj 
 
 Bcttleuiunt, like all rights of setting 111, 115, 118,
 
 MAllRlACiE WITHIN PROHIBITED DECillEES. 249 
 
 Tlie expectation of acquiring a marital right cannot Lo 
 Eaicl really to exist in most cases. There is in truth a 
 mutual expectation of acquiring 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 con- 
 verse case of a clandestine settlement by the man is most 
 unlikely to happen ; there is little chance, therefore, that Other 
 the correctness of the view here suggested will ever be ^[^^^3 
 brought to a decisive test. One reported case, however, trecated as 
 supplies some analogy. By a marriage settlement the upon 
 husband's father settled a iointure on the wife : by a secret ^^^p^s^ 
 
 •' . . -^ contract. 
 
 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 " (,r). 
 
 4. Marriages within the prohibited degrees of kindred 4. Mar- 
 aud affinity arc another class of transactions contrary to ^'^^K°- 
 
 _ -^ _ ^ within 
 
 positive law. For although no dii'ect temporal penalties prohibited 
 are attached to them, they have been made the subject ^^^^^^' 
 of express and definite statutory prohibition {//). They 
 formerly could not be treated as void unless declared so by 
 an ecclesiastical Court in the lifetime of the parties : but 
 by a modern statute (5 & 6 Wm. 4, c. 54) they are now 
 absolutely void for all purposes. An executory contract 
 to marry within the prohibited degrees is of course abso- 
 lutely void also (2), and would indeed have been so before 
 the statute. These rules are not local, like other rules of 
 
 (x) ralmer v. ISIcavc, 11 Ves. 1G5. L. C. 193. 
 
 Cp. the other similar cases cited in (;) It seems from MUhvard v. 
 
 Story Eq. Jur. §§ 266-271. One or Littleivood, 5 Ex. 775, 20 L. J. Ex. 
 
 two of these, however, are really 2, that in the barely possible case 
 
 cases of estoppel. of the relationship being known to 
 
 (y) 32 H. 8, c. 38, and earlier only one of the parties, by whom it 
 
 repealed statutes of the same reign. is fraudulently concealed from the 
 
 It is the better siipported opinion other, the innocent party may sue 
 
 that 5 & 6 Wm. 4, c. 54, does not as for a breach of contract, though 
 
 contain any new substantive prohi- tlie performance of the agreement 
 
 bition. See Brook v. Brook, 9 H. would be unlawful.
 
 2-50 UNLAWFUL AGKEEMENTS. 
 
 miiiiieipal law prescribing the solemnities of tlie marriage 
 ceremony, 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 ") {a), and it concerns 
 not the form but the substance of the contract ; it there- 
 fore 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 (b) . 
 
 Where a marriage has been contracted in England be- 
 tween foreigners domiciled abroad, English Courts will 
 recognize disabilities, though not being iuris (jentium, im- 
 posed by the law of the domicil of both parties (c) : 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 domicil to a prohibition 
 not recognized by English law, at all events where the 
 other party's domicil is English {d). 
 Royal The "Act for the better regulating the future marriages 
 
 of the Eoj'al Family" (12 Geo. 3, c, 11) imposes on the 
 
 Marria 
 Act 
 
 [a) The use of these particular of life of parties, pecuniary interests 
 
 ■words seems of little importance. of thii'd pei'sons, petitions to human 
 
 The true leason is shortly put by tribunals, and technical i-ules of 
 
 Savigny, Sy?t. 8. 326: " die hier statutory construction and judicial 
 
 einschlagenden Gesetze, die auf procedure." 
 
 sittlichen Riicksichten beruhen, {b) Brook v. Brook, supra. See 
 
 haben eine strong- positive Natur." per Lord Campbell at p. 220. He 
 
 Savigny' s authority is perhaps also doubted whether a marriage 
 
 s-ufHcient to defend the doctrine of allowed by the law of the place, but 
 
 Brook V. ij^'oo/k against the caustic contracted by English subjects who 
 
 criticism passed upon it by the had come there on purjDose to evade 
 
 Chief Justice of Massachusetts in the English law, would be recog- 
 
 Commoiuccalth v. Laiir, 113 Mass. nized even by the local courts. Cp. 
 
 at p. 473: — Sottomai/or v. De Barros, infra. 
 
 "The judgment proceeds upon (c) Soltomatjor v. Be Barros (C. 
 
 the ground that an Act of Parlia- A.) 3 P. D. 1. 
 
 ment is not merely an ordinance of [d) Sottomaj/or v. Be Barros, 5 
 
 man but a conclusive declaration of P. D. 91, dissenting from some 
 
 the law of God ; and the result is dicta in the previous judgment of 
 
 that the law of God, as declared by the C. A., which however went on 
 
 Act of Parliament, and expounded a supposed dift'ereut state of the 
 
 by the House of Lords, varies facts. 
 according to the time, i)lace, length
 
 PJlOIliniTOKY STATUTES. 
 
 201 
 
 persons within its operation disabilities (iiLsolutc Leforo 
 the ago of 25, qualified after that age) to inarry witliout 
 the consent of the Sovereign : and this disability is per- 
 sonal, not local, so that a marriage without consent is 
 equally invalid wherever celebrated (e) . 
 
 5. Moreover a great variety of dealings of which con- 5. Agree- 
 tracts form part, or to which they are incident in the jHeg-ai by 
 ordinary coiu'se of affairs, are for extremely various reasons statute. 
 forbidden or restricted by statute. During the last cen- 
 tury, in particular, Acts of Parliament regulating the 
 conduct of sundry trades and occupations were strangely 
 multiplied. Most of these are now repealed, but the deci- 
 sions upon them established principles on which our Courts 
 still act in dealing with statutes of this kind. 
 
 The question whether a particular transaction comes Coustmc- 
 within the meaning of a prohibitory statute is manifestly projiibi. 
 one of construction. So far as w^o have to do with it here, ^o^T **t'^" 
 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 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 expressed intention of the legis- 
 lature. But in recent times our courts have fully and 
 explicitly disclaimed any such powers of interpretation. 
 
 " The ouly rule for the construction of Acts of Parliament is that they 
 .should be construed according to the intent of the Parliament ■which 
 passed the Act ; " provided that the words be "sufficient to accomplish 
 the manifest purpose of the Act " (/). 
 
 {(■) The Sussex Fccragc case, 11 T>rougham at p. 150. And sec per 
 
 CI. & F. 85. Kuig-ht Bruce, L. J. Crofls v. Mid- 
 
 (/) Opinion of the Judges in the dlclon, S D. M. Gr. 217 ; per Loid 
 
 Sussex I'ceragc ca. 11 CI. k. F. at p. Blackburn, in Itiicr Wear Conimrs. 
 
 1-13, per Tindal, C. J. ; per Lord v. Adamson, 2 App. Ca. at p. 764.
 
 statutes. 
 
 252 UNLAWFUL AGREEMENTS. 
 
 lu like manner it is now understood tliat one or two 
 dicta wliich are to be found in the books, suggesting that 
 an Act of Parliament against " common riglit " or " natural 
 equity " would be void, must stand as warning ratlier than 
 authority (//) . The effect of plain and unambiguous words 
 is not to be limited by judicial construction even though 
 anomalous results should follow {//). 
 Policy of On the other hand the general intention is to be re- 
 garded, and may if necessary prevail over particular 
 expressions, no less than in the interpretation of private 
 instruments (;'). But this must be an intention collected 
 from what the legislatiu-e has said, not arrived at by con- 
 jectures of what the legislature might or ought to have 
 meant. A transaction not in itself immoral is not to be 
 held unlawful on a conjectural view of the policy of a 
 statute (/>•). We may now understand the meaning of this 
 last phrase, which is not uncommon in cases of the kind 
 now before us. The true policy of a statute, in a court of 
 justice at all events, is neither more nor less than its right 
 and reasonable construction. The Courts no longer under- 
 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 make out that a contract is illegal under a 
 statute, we must make out distinctly that the statute has 
 provided that it shall be so " (/). 
 
 The cases in which acts of corporate bodies created for 
 special purposes have been held void as " contrary to the 
 policy of the legislature " and tending to defeat the objects 
 of the incorporation have already been considered in Ch. II. 
 nightly understood, they are quite consistent, it is believed, 
 with what is here said. 
 
 iff) Per Willcs, J. Lcc v. Jiiidc, (^c. (/;) C/v/jio ex Argus, &c. L. R. 5 P. 
 
 It,,. Co. L. R. G C. P. 57C, 582. Cp. C. at pp. L52-;;. 
 
 for the old -view the dictum of Lord (t) As to wliich sec L. R. 2 Ex. 
 
 Ifolt, 12 Mod. (;S7-H: "An act of 198. 
 
 jiarliaiiicnt candoiio wroii^, 'houg-h (/.•) Laylo)i v. Mulr, L. R. G P. C. 
 
 it may do several things that look i;il. 
 
 pretty odd," and the context. {I) Field, J. 1 Q. B. D. at p. 224,
 
 PROHIBITORY STATUTES. 253 
 
 These principles, wlien applied to tlic more limited 
 subject-matter of prohibitory statutes, give the following 
 corollaries : 
 
 (a). When a transaction is forbidden, the grounds of the Rules, 
 prohibition are immaterial. Courts of iustice cannot take a. No dif- 
 
 icrcticG 
 
 note of any difference between mala proJiibita {i.e. things betwccu 
 which if not forbidden by positive law would not bo '"^'''""., 
 immoral) and mala in ne {i.e. things wliich are so forbidden ami malum 
 
 1 . • nx in se. 
 
 as being immoral). 
 
 (n). The imposition of a penalty by the legislature on b. Penalty 
 
 .ft 1 ... . , . • 1 J i prima facie 
 
 any specitic act or omission is pnuia facie equivalent to an Imports 
 
 express prohibition. prohibi- 
 
 tion. 
 These rules are established by the case of Benslri/ v. 
 
 Bif/iiold {m), which decided that a printer could not 
 recover for his work or materials when he had omitted to 
 print his name on the work printed, as then required by 
 statute {)i). 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 bo 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 dis- 
 tinction between mala prol/ibita and nuila in se was long 
 since exploded. The same doctrine has repeatedly been 
 enounced in later cases. 
 
 Thus, for example, by the Court of Exchequer : 
 
 ' ' When 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 pro- 
 hibition" (o). 
 
 (;h) 5 B. & Aid. 335. cJiesifr .f' JfiJ/ord %. Co. 5 B. & S. 
 
 («) See now 32 & 33 Vict. c. 2-1. 588, 33 L. J. C. P. 2G8 ; Jie Cork S; 
 
 ((-) Cope V. Eoidamls, 2 M. & W. Youghal lij. Co. 4 Ch. 748, 7.38. 
 149, 157. Cp. Chambers v. Slan-
 
 254 
 
 UNLAWFUL AGREEMENTS. 
 
 c. But ab- 
 sence of 
 penalty 
 does not 
 alter ex- 
 press pro- 
 hibition. 
 
 D. "Wliat 
 may not 
 be done 
 directly 
 must not 
 be done 
 indirectly. 
 
 Booth V. 
 Bank of 
 Eno-laud. 
 
 Bank of 
 IT. S. r. 
 Owens. 
 
 It is needless to discuss the " policy of the law " when it 
 is distinctly enunciated by a statutory prohibition (p). 
 
 (c:). Conversely, 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 (y). 
 
 (d). What the law forbids to be done directly cannot be 
 made lawful by beiug done indirectly. 
 
 In Ijooth V. Bank of England (;■) a joint-stock bank pro- 
 cm-ed its manager to accept certain bills on the under- 
 standing that the bank would find funds, these bills being 
 such as the bank itself could not have accepted Avithout 
 violating the privileges of the Bank of England. 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 whatever 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. 
 
 In Bank of United States v. Oicens (s) (Supreme Cornet, 
 U.S.) the charter of the bank forbade the taking of a 
 greater rate of interest than six per cent., but did not say 
 that a contract should be void in which such interest was 
 taken. A note payable in gold w^as 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 follows: "A fraud upon a statute is a 
 
 (;;) Sec per Lord Cranworth, Ex 
 parte Ncihon, 3 D. M. Gr. 550, 5CG. 
 
 [fj) Sussex I'eerage ca. 11 CI. «& F. 
 at ].p. llK-0. 
 
 {)•) 7 CI. & F. ;J09, 540, upholding 
 Tianic of Enqland v. Anderson, 2 
 Keen r)28, ;i Bing. N. C. 689. 
 
 (.v) 2 Peters 527.
 
 riioiniiiTOKY stati:tes. 255 
 
 violation of the statute." " It cannot bo permitted by law 
 to stipulate for the reservation of that which it is not per- 
 mitted to receive. In those instances in which Courts are 
 called upon to inflict a penalty it is necessarily otherwise ; 
 for then tlie actual receipt is generally necessary to con- 
 summate the offence. But when the restrictive policy of 
 a law alone is in contemplation, wo hold it to be an 
 universal rule that it is unlaA^'ful 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 mahtm 
 2)roJdhituui " {t). 
 
 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 pur- 
 pose and having the like effect, is ^'oid [u). 
 
 When conditions are prescribed by statute for the conduct Where 
 
 o i." 1 1 • £ ' 11 Tj • conditions 
 
 or any particular business or proiession, and such conditions prescribed 
 are not observed, agreements made in the course of such *"^' ^^^' 
 
 , . P • <iiict of 
 
 business or profession — particular 
 
 (e) are void if it appears by the context that the object *'""^_^' ^^'' 
 of the legislature in imposing the condition was the main- observ- 
 tenance of public order or safety or the protection of the them— 
 persons dealing with those on whom the condition is e. avoids 
 i^iposed: _ _ ^ "^^^ 
 
 (f) are valid if no specific penalty is attached to the the con- 
 specific transaction, and if it appears that the condition foro-eueral 
 
 [t) 2 Peters 53G, 539. 72.5. It must be shown, to vitiate 
 [u] Ex parte 2Iack(nj, 8 Ch. 643 ; a transaction on this ground, that 
 Ex 2)arte Williams (C. A.), 7 Ch. D. the provision was inserted in cou- 
 138, where the device used was the teniplation of bankruptcy and for 
 attornment of the debtor to his tlie purpose of defeating the bank- 
 mortgagee at an excessive rent ; Ex ruptcy law : Ex parte I'oisei/, G. A. 
 parte Jac7:.<o>i (C. A.), M Ch. D. 21 Ch. D. 442, 461.
 
 2.j6 
 
 UNLAWFUL AGREEMENTS. 
 
 public 
 purposes ; 
 
 F. not if 
 for merely 
 adminis- 
 trative 
 purposes. 
 
 Illustra- 
 tions. 
 
 was imposed for merely administrative purposes, e.g. the 
 convenient collection of the revenue {x) . 
 
 The following are instances illustrating this distinction :— 
 Agreement Void. 
 
 Ritchie V. Smith, 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 there deal in liquor on his own account under colour 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 licences 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(y). Hamilton v. Grainger, 5 H. & N. 40. 
 
 Taylor v. Croivland Gas Co., 10 Ex. 293, 23 L. J. Ex. 2oi. A penalty 
 being imposed by statute on unqualified persons acting as convey- 
 ancers {z), the Court held that the object was not merely the gain to the 
 revenue from the duties on certificates, but the protection of the j)ublic 
 from unqualified practitioners ; an unqualified person was therefore not 
 allowed to recover for work of this nature. Cp. Leman v. Uouseleij, 
 L. R. 10 Q. B. 66. 
 
 Fergusson v. Norman, f) Bing. N. C. 76. "When a pawnbroker lent 
 money without complying with the requirements of the statute, the loan 
 was void and he had no lien on the pledge (a) . 
 
 In Stevens v. Gourleg, 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. 
 c. 122. The only question in the case was whether the structure was a 
 building within the Act. But note that here the proliibition was for a 
 public purpose, namely to guard against the risk of fire. 
 
 Burton v. Figgott, L. R. 10 Q. B. 86. By 5 & G 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 ho first obtain a licence from two justices. The 
 
 (.r) This statement differs only 
 verbally from Mr. Benjamin's. (On 
 Sale, p. 520.) "We have tried to put 
 it in a rather more general form. 
 
 (//) For tlie i)enal enactments now 
 in force see the Licensing Act, 1872, 
 35 & 36 Vict. c. 94, m. 3-8. 
 
 {£) Now by 33 & 84 Vict. c. 97, 
 fl. 60. 
 
 ((') Tlie present Pawnbrokers Act 
 (1872; 35 & 36 Vict. c. 93, s. 51), 
 enacts that an offence against the 
 Act by a pawnbroker, not being an 
 offence against any provision re- 
 lating to licences, shall not avoid 
 the contract or deprive him of his 
 lieu.
 
 PROHIBITORY STATUTES. 257 
 
 effect of this is that an unlicensed contract by a surveyor to perfonn 
 work or supply materials for any highway under his care is absolutely 
 illegal, and the justices have no discretion (under s. 44) to allow pay- 
 ments in respect of it. 
 
 Contract not Avoided. 
 
 Bailey v. Harris, 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. 
 
 Smith V. Mawhood, 14 M. & W. 452. The sale of an exciseable article 
 is not avoided by the seller having omitted to paint up his name on the 
 licensed premises as required by 6 Geo. 4, c. 81, s. 25. Probably this 
 decision would govern the construction of the very similar enactment in 
 the Licensing Act, 1872 (35 & 36 Vict. c. 94, s. 11). 
 
 Smith V. Lindo, 4 C. B. N. S. 395, in Ex. Ch. o C. B. N. S. 587. One 
 who acts as a broker in the City of London without being licensed under 
 6 Ann. c. G8 (Rev. Stat. : al. 16) and 57 Geo. 3, c. Ix. [b) cannot recover 
 any commission, but a piu'chase 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 see further, as to statutory prohibitions of this kind, Benjamin on 
 Sale 521 sqq. 
 
 And in general an agreement wHeh the law forbids to 
 be made is 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 agree- 
 ment may be forbidden without being void, or void with- 
 out being forbidden. 
 
 (g). "Where a statute forbids an agreement, but says o. Agree- 
 that if made it shall not be void, then if made it is a con- ™'|^ 
 tract which the Court must enforce. though 
 
 By 1 & 2 Vict. c. 106, it is unlawful for a spiritual if statute' 
 person to engage in trade, and the ecclesiastical Court may expressly 
 inflict penalties for it. But by s. 31 a contract is not to vides. 
 
 {b) These Acts are repealed as to the somewhat obscurely framed 
 
 the power of the city coui-t to make London Brokers Relief Act, 1870, 
 
 rules, &c., but not as to the neces- 33 & 34 Vict. c. 60. 
 sity of brokers being admitted by
 
 258 
 
 UNLAWFUL AGREEMENTS. 
 
 be void by reason only of being entered into by a spiritual 
 person contrary to the Act. It was contended without 
 success in Lewis v. Bright (c) 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 immaterial ; the legislature meant to pro- 
 vide against the scandal of such a defence being set up. 
 And Erie, J. said that one main purpose of the law was to 
 make people perform their contracts, and in this case it 
 fortunately could be carried out. 
 
 H. Agree- 
 ment may 
 be simply 
 not en- 
 forceable, 
 but not 
 otherwise 
 unlawful. 
 
 Wagers. 
 Void, but 
 not abso- 
 lutely 
 illegal. 
 
 Fitch V. 
 Jones. 
 
 (h). Where no penalty is imposed, and the intention of 
 the legislature appears to be simply that the agreement is 
 not to be enforced, there neither the agreement itseH nor 
 the performance of it is to be treated as unlawful for any, 
 other pm-pose. 
 
 Modern legislation has produced some very curious 
 results of this kind. In several cases the agreement can- 
 not even be called void, being good and recognizable by 
 the law for some pm-poses or for every purpose other than 
 that of creating a right of action. These cases are reserved 
 for a special chapter (d). 
 
 In the case of wagers the agreement is null and void, by 
 8 & 9 Yict. 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 contributions 
 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 
 
 (c) 4E. &B. 917,24 L. J. Q. B. 
 191. 
 
 (d) SeeCh. XII., On Agreements 
 of Imperfect Obligation. The dis- 
 tinction between an enactment 
 which imposes a penalty without 
 making the transaction void, and 
 one which makes the forbidden 
 transaction void, is expressed iu the 
 civil law by the terras (which are 
 
 classical) minus quani pcrfccta lex 
 and pcrfccta lex. Uljj. Reg. 1 § 2, 
 cp. Sav. Syst. 4. 550. A constitu- 
 tion of Theodosius and Valentiuian 
 (Cod. 1. 14. de leg. o) enjoined that 
 all prohibitory enactments were to 
 be cousti'ucd as avoiding the trans- 
 actions prohibited by them (that is, 
 as leges perfectac) whether it were so 
 expressed or not.
 
 WAGERS AND GAMING. 259 
 
 between two or more persons (e), and tlie " subscription or 
 contribution " is not money deposited with a stake-holder 
 by way of wager) (/) , "Wagers were not as such unlawful 
 or unenforceable at common law (we shall have to recur to 
 this under the head of " public pohcy ") : and since the 
 statute docs 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 tlie money or give a note for the 
 amount. The consideration for a note so given is in point 
 of law not an illegal consideration, but merely no considera- 
 tion 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 ; but here the 
 ordinary presumption in favour of the holder of a negotiable 
 instrument is not excluded {(/). In like manner " if a party 
 loses a wager and requests another to pay it for him, he is 
 liable to the party so paying it for money paid at his 
 request : " as where a broker is employed in fictitious deal- 
 ings in shares which are really wagers on the price of 
 shares, and according to custom himself pays the amount 
 due {//). This goes farther than an earher case in which 
 it was held, in a somewhat guarded manner, that payment 
 by the di^awer of racing debts of the acceptor is a good 
 consideration for a bill of exchange {i). 
 
 But 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 (A-) , 
 
 [e) e. g. a wager that a horse will 24 L. J. Q. B. 293, see judgments of 
 
 trot eighteen miles in an hour is not Lord Campbell, C. J. and Erie, J. 
 
 within it, as there can he no winner (/;) Eoseicarne v. Billing, 15 C. B. 
 
 in the true sense of the clause: N. S. 31G, 33 L. J. C. P. 55. 
 
 Batson v. Ncivman (C. A.) 1 C. P. (i) Quids v. Harrison, 10 Ex. 572, 
 
 D. 573. 577. As to recovering money de- 
 
 (/) JDiqglcY. Higgs (C. A.) 2 Ex. posited with a stakeholder or agent, 
 
 D. '^•n { Trimble v. Mill (J. C.) 5 see p. 334 below. 
 
 App. Ca. 342. {k) The statute does not affect a 
 
 (ff) Fitch V. Jones, 5 E. & B. 238, loan of money to pay a debt pre-
 
 260 
 
 UNLAWFUL AGREEMENTS. 
 
 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 various kinds of contracts by regu- 
 lating particular professions and occupations or otherwise. 
 It has been attempted, however, to make some collection of 
 them in the Appendix (/). 
 
 Agree- 
 ments in 
 derogation 
 oi private 
 Acts of 
 Parlia- 
 ment not 
 necessarily 
 ■bad. 
 
 The rules and principles of law which disallow agree- 
 ments whose 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 between parties. If any of 
 the persons interested make arrangements between them- 
 selves 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 {m). 
 
 B. Con- 
 trary to 
 positive 
 morality. 
 Practi- 
 cally this 
 means only 
 sexual 
 morality. 
 
 Influence 
 of eccle- 
 siastical 
 law. 
 
 B. Agreements contrary to morals or good manners. 
 
 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 do not mean so much 
 that it is morally wrong as 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 
 the transaction may not come within any positive prohi- 
 bition 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, ujjon 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 certainly brought in a 
 
 viously lost: Ex parte Pijlce (C. A. 
 8 Ch. D. 7r)4. 
 (/) Sec Note H. 
 
 (;«) Savin v. Uoijlalic Ry. Co. L. R. 
 1 Ex. 9. Cp. anddist. Shaw''sclix\m, 
 10 Ch. 177.
 
 IMMORAL AGREEMENTS. 261 
 
 tendency to treat these cases in a peculiar manner, to mix 
 up the principles of ordinary social morality with considera- 
 tions of a different kind, and with the help of those 
 considerations to push them sometimes to extreme conclu- 
 sions. Having regard to the largo powers formerly exercised 
 by spiritual (Courts in the control of opinions and conduct, 
 and even now technically not abolished, it seems certain 
 that everything which our civil Courts recognise 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 {n). 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 which the common 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 himself or others drunk with it 
 would be void at common law. The actual 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 im- 
 moral agreements, as they may be 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 marriage contract," as it is sometimes expressed) . 
 
 With regard to the first class, the main principle is this. Illicit co- 
 
 («) Cp. Lord Westbury's remarks in Ifunt v. Hunt, 4 D. F. J. at pp. 
 226-8, 233.
 
 UNLAWFUL AGREEMENTS. 
 
 Judgment 
 of Lord 
 Selborne, 
 Ay erst v. 
 Jenkins. 
 
 Tlio promise or expectation of future illicit cohabitation is 
 an unlawful consideration, and an agreement founded on 
 it is void. Past cohabitation is not an unlawful considera- 
 tion ; indeed, there may in some circumstances be a moral 
 obligation on the man to provide for the woman ; but the 
 general rule applies (o) that a past executed consideration, 
 whether such as to give rise to a moral duty or not, is 
 equivalent in law to no consideration at all. An agree- 
 ment made on no other consideration than past cohabita- 
 tion is merely voluntary, and is in the same plight as any 
 other voluntary agreement. If under seal it is binding 
 and can be enforced (7^), otherwise not (q). The existence 
 of an express agreement to discontinue the illicit cohabita- 
 tion, which in law is merely superfluous and adds nothing 
 at all — or the fact of the defendant having previously se- 
 duced the plaintiff, which " adds nothing but an executed 
 consideration resting on moral grounds only," — can make 
 no difference in this respect {q). 
 
 The manner in which these principles are applied has 
 been thus stated by Lord Selborne : — 
 
 "IVIost of the older authorities on the subject of contracts founded on 
 immoral consideration are collected in the note to Benyo)i v. Nvlllefoldir). 
 Their results may be thus stated : 1. Bonds or covenants founded on past 
 cohabitation, whether adulterous (.s), inccstuoiis, or simply 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 cohabitation, 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 (?<). 4. If an illegal consideration does not appear 
 
 (o) But the rule is modem (Ch. 
 rV. p. 169 above), and the earlier 
 cases on this subject belong to a time 
 when a dillerent doctrine prevailed ; 
 they therefore discuss matters which 
 in the modem view are simply irre- 
 levant, e.g. the previous character of 
 the parties. The phrasc^jrfTf >«(/(;« 
 pudiciiine comes from this period. 
 
 (;;) Orui/ v. Mathias, ') Ves. 28(3. 
 
 (i/) Jivaumunlw. Reeve, 8 Q. B.483, 
 
 (V) 3 Mac. & a. 94, 100. 
 
 («) Kaye v. Moore, 1 Sim. & St. 
 64. 
 
 {t) Walker v. Perkins, 3 Burr. 
 1568. 
 
 (?<) Gray v. Mathias, 5 Ves. 286 ; 
 Smyth V. Grijfi», 13 Sim. 245, ap- 
 l^oars to be really nothing else than 
 an instance of the same rule. The 
 rule is or was a general one : Simp- 
 son V. Lord Uoadoi, 3 My. & Cr. 
 97, 102.
 
 IMMORAL AGREEMENTS. 263 
 
 on the face of the instmment the objection of pariieeps crimbiis -will not 
 prevail against a bill of discovejy in equity in aid of the defence to an 
 action at law {x), [this is now of no consequence in England, owing to 
 the changes in procedure]. 5. Under some (but not under all) circum- 
 stances when the consideration is unlawful, and does not appear on the 
 face of the instrument, relief may be given to a particcps criminis in 
 equity" (y). 
 
 The exception alluded to in tlie last sentence is pro- 
 bably this : that " where a party to the illegal or immoral 
 purpose comes himself to be relieved from the obligation 
 he has contracted in respect of it, he must state distinctly 
 and exclusively such grounds of relief as the Court can 
 legally attend to " (~). He must not put his case on the 
 ground of an immoral consideration having in fact failed, 
 or complain that the instrument does not correctly express 
 the terms of an immoral agreement (a). 
 
 Where a secmity is given on account of past cohabita- 
 tion, 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 consideration was future as 
 well as past cohabitation, nor therefore treat the deed as 
 invalid (b). 
 
 There existed a notion that in some cases the legal per- 
 sonal representative of a party 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 " (c). It must 
 be borne in mind that the whole doctrine applies to execu- 
 tory agreements only. An actual transfer of property, 
 wliich is on the face of it "a completed voluntary gift, valid 
 and irrevocable in law " and confers an absolute beneficial 
 interest, cannot be afterwards impeached either by the 
 
 {x) Bcnyon v. Ketilefold, supra. mey v. Eley, 17 Sim. 1 : but the 
 
 \y) Ayerst v. Jenkins, 16 Eq. 275, case is hardly intelligible. 
 
 282. {h) Grail v. Mathias, o Ves. 286 ; 
 
 (:;) Batty v. Chester, 5 Beav. 103, Ball v. Falmcr, 3 Ha. 532 ; Val- 
 
 109. lance v. Blagden, 26 Ch. D. 353. 
 
 («) 6Vw?i/f, relief will not be given (c) Ayerst v. Jenkins, 16 Eq. 275, 
 
 if it appears that the immoral con- 28i, 284. 
 sideration has been executed : Sis-
 
 264 I'NLAWFIL AGREEMENTS. 
 
 settlor or by his representatives, though, in fact made on an 
 immoral consideration (c) . 
 Proviso for Where parties who have been living together in illicit 
 lionAn ^' cohabitation separate, and the man covenants to pay an 
 rywffst sepa- annuity to the woman, with a proviso that the annuity 
 deed is shall cease or the deed shall be void if the parties live to- 
 ^'^^^' gether 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 {d) . When the parties are really married such a 
 proviso is usual but superfluous, for the deed is in any case 
 avoided by the parties afterwards living together (e) . This 
 brings us to the second branch of this topic, namely the 
 validity of separation deeds and agreements for separation. 
 Separation The history of the subject will be found very clearly set 
 geSmL forth in Lord Westbury's judgment in Huuf v. mint (/). 
 Hunt V. From the ecclesiastical point of view marriage was a sacra- 
 Hunt, ment creating an indissoluble relation. The duties attach- 
 ing to that relation were " of the highest possible religious 
 obligation " and paramount to the will of the parties. In 
 ecclesiastical 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 jurisdic- 
 tion 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 
 
 {<:) Jyerst v. Jenkins, IG Eq. 275, (/) 4 D. F. J. 221. The case was 
 
 281, 284. taken to the House of Lords, but 
 
 {d) Ex parte Naden, ^ Ch. QIQ. the proceedings came to an end 
 
 \c) Westnicath v. }f'eslineatli, 1 -without any decision by the death 
 
 Dow & CI. 519. of the husband : see per Lord Sel- 
 
 bome, 8 App. Ca. at p. 421.
 
 SKrAUATIOX DEEDS. 265 
 
 in other places. In later times the ecclesiastical view of 
 marriage was still upheld, so far as the remaining eccle- 
 siastical jurisdiction could uphold it {()), and continued to 
 have much influence on the opinions of civil Courts ; the 
 amount of that influence is indeed somewhat understated 
 in Lord Westhury's exposition. But the common law, 
 when once its jurisdiction in such matters was settled, 
 never adopted the ecclesiastical theory to the full extent. 
 A contract providing for and fixing the terms of an im- 
 mediate separation is treated like any otlier legal contract. 
 It must satisfy the ordinary condition of being made be- 
 tween competent parties, and the wife cannot contract with 
 her husband : but even this difficulty is in certain excep- 
 tional cases not insuperable (p. 83 above), and it is generally 
 circumvented by the contract being made between the 
 husband and a trustee for the wife. Being good and en- 
 forceable at law, the contract is also good and enforceable 
 in 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 restrained from suing in the 
 Divorce Court for restitution of conjugal rights in violation 
 of his covenant in a separation deed (A), on the authority 
 of the decision of the House of Lords (/), which had already Wilson v. 
 established that the Court may order specific performance '^"■''*^^- 
 of an agreement to execute a separation deed containing 
 such a covenant. The case may be taken as having put 
 the law on a consistent and intelligible footing, though 
 not without oveiTuling a great number of pretty strong 
 dicta of various judges in the Court of Chancery and even 
 in the House of Lords (/.•) ; and it has been followed both 
 
 {g) See 4 D. F. J. 235-8. mcath, 1 Jac. 142 (Lord Eldou) ; 
 
 (A) This covenant could not then Worrall v. Jacob, 3 Mer. 268 (Sir 
 
 be pleaded in the Divorce Court, W. Grant) ; IVarrcnder v. Warren- 
 
 ■which held itself hound by the rfer, 2C'l. &r. 527(LordBroug-ham), 
 
 former ecclesiastical practice to take 5G1-2 (Lord Lyndhurst). Most of 
 
 no notice of separation deeds. these are to be found cited in the 
 
 (j) Wilsoii V. Wihon, 1 H. L. C. argument in Wilson y. Wihon. And 
 
 538. even since that case Vannittart v. 
 
 (Jc) In St. John v. St. John, 11 Vansittart, 2 De G. & J. 255 (Lord 
 
 Ves. 535, &c., Westmeath v. West- Chelmsford).
 
 266 UNLAWFUL AGREEMENTS. 
 
 in the Chancery and in the Probate Divisions (/). But an 
 agreement by the wife not to oppose proceedings for a 
 divorce pending at the suit of the husband is void, being 
 not only in derogation of the marriage contract, but a 
 collusive agreement to evade the due administration of 
 justice {ill). 
 Considera- "We have Seen that when it is sought to obtain the 
 a^ree-"^ Specific performance of a contract the question of con- 
 sents for sideration is always material, even if the instrument is 
 deeds. imdcr seal. Grenerally 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 undertaking to let her 
 live apart from him, enjoy her property separately, &c. {n). 
 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 in- 
 demnifying the husband, so that the usual consideration is 
 in fact present (o). 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 
 husband and the trustee as to indemnity and payment, or 
 rather that these were the only valid parts of the contract. 
 But since Wilson v. Wilson (p) and ITiod v. Hioit 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 tlie husband and wife through the intervention of 
 a third party, namely the trustees, and the husband's con- 
 
 (/) Benant v. Wood, 12 Ch. D. at {p) On the effect of that case see 
 
 p. 023 ; Marshall v. Mar»hall, o P. the remarks in the House of Lords 
 
 1). 19. in a subsequent appeal as to the 
 
 (w) Hope V. Hope, 8 D. M. G. 731, frame of the deed, lyihon v. Wilsoti, 
 
 745. 5 H. L. C. 40 ; and byLordWest- 
 
 («) See Dav. Conv. 5, pt. 2, 1079. bury, 4 D. F, J. 234. 
 
 (o) Gibbs V. Ilardlnij, 5 Ch. 336.
 
 SEPARATION DEEDS. 2G7 
 
 tract for the benefit of the wife is supported by the con- 
 tract of the trustees on her behalf" (q). A covenant not Minor 
 to sue for restitution of conjugal rights cannot be implied, toTep^ara- 
 and in the absence of such a covenant the institution of tion deeds, 
 such a suit does not discharge the other party's obligations 
 under the separation deed (r). Subsequent adultery does 
 not of itself avoid a separation deed unless the other 
 party's covenants are expressly qualified to that effect (.s) . 
 A covenant by the husband to pay an annuity to trus- 
 tees for the wife so long as they shall live apart, remains 
 in force notwithstanding a subsequent dissolution of the 
 marriage on the groimd of the wife's adultery {f). But 
 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 present intention of obtaining greater facilities for such 
 misconduct (u). 
 
 A separation, or the terms of a separation, between hus- 
 band and wife cannot lawfully be the subject of an agree- 
 ment for pecimiary consideration between the husband 
 and a third person. But in the case of Jones v. Waite {,r) 
 it was decided by the Exchequer Chamber and the House 
 of Lords that the husband's execution of a separation deed 
 already drawn up in pursuance of an existing agreement 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 {y). If it were 
 not so, but could remain suspended in order to be revived 
 in the event of a renewed separation, it might become 
 
 [q) 4 D. F. J. 240. (.'•) 1 Bing. N. C. 656, in Ex. Ch. 
 
 \r) Jee v. Thurlow, 2 B. & C. o 17. 5 Bing. N. C. 341, in H. L. 9 CI. 
 
 \s) lb.; Evans T. Carrington,2T>. & F. 101. In the Ex. Ch. both 
 
 F. J. 481. Lord Abinger and Lord Denman 
 
 {t) Charhsivorth v. Holt, L. R. 9 dissented. Cp. p. 179 above. 
 Ex. 38. {y) See also JFestmcath v. Salis- 
 
 {>() Evans v. Harrington, supra. bunj, 5 Bli. N. S. 339.
 
 2G8 UNLAWFUL AGREEMENTS. 
 
 equivalent to a contract providing for a contingent separa- 
 tion at a future time : and such a contract, as will imme- 
 diately be seen, is not allowable. However, a substantive 
 and absolute declaration of trust by a third person con- 
 tained in a separation deed has been held not to be avoided 
 by a reconciliation (2). 
 
 Agree- As to all agreements or provisions for a future sepa- 
 
 ^^uol °^ ration, whether post-nuptial {a) or ante-nuptial {h) (c), 
 separation ^nd whether proceeding from the parties themselves or 
 from another person [e], it remains the rule of law that 
 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 agreement is void {a) . A con- 
 dition in a marriage settlement varying the disposition of 
 the income in the event of a separation is void (c) . 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 mis- 
 conduct such as would be a ground for divorce or judicial 
 separation (/>). 
 
 Likewise a deed purporting to provide for an immediate 
 separation is void if the separation does not in fact take 
 place : for this shows that an immediate separation was 
 not intended, but the thing was in truth a device to pro- 
 vide for a future separation [d). Nor can such a deed be 
 supported as a voluntary settlement (e) . 
 
 {£) Ruffles V. Alston, 19 Eq. 539. M. G. 982: note that this and the 
 
 [a) Marquis of TFeslmeath v. Mar- case last cited were after Wilson v. 
 
 chioncss of Wcstmcath, 1 Dow & CI. Wilson. 
 
 519, 541; Westmeath v. Salisbury, (d) llincUcy v. Marquis of West- 
 
 6 Bli. N. S. 339, 393. mrath, 6 B. & C. 200 ; confirmed by 
 
 (/;) //. V. W. 3 K. & J. 382. Some Westmeath v. Salisbury, 5 Bli. N. S. 
 
 of the reasons given in this case (at 339, 395-7. 
 
 p. 38G) cannot since Hunt v. Ilunt (e) Bindley v. MuUoney, 7 Eq. 
 
 be supported. 343. 
 
 (c) Cartivriyht \. C'artwriyht, 3 D.
 
 IMMORAL PUBLICATIONS, 269 
 
 The distinction rests on the following ground: — An Reason of 
 
 the dis- 
 tinction. 
 
 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 possible dissolution of the 
 marriage contract, which the policy of the law is to pre- 
 serve intact and inviolate "(;/) . 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 {//). 
 
 It is a well-established rule that no enforceable right Immoral 
 can be acquired by a blasphemous, seditious, or indecent tions^*^^" 
 publication, whether in words or in writing, or by any Being 
 contract in relation thereto (1) ; but it does not really be- offences, 
 lone- to the present head. The ground on which the cases ^^^T ^^^ 
 
 . ... . . contrary- 
 
 proceed is that the publication is or would be a criminal to positive 
 
 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 as malum j^rohihitum, 
 and refuses to recognize it as the origin of any right (/.•). 
 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 until the exist- 
 ence of the legal right is ascertained (/). It would per- 
 haps be difficult to assert as an abstract proj^osition that a 
 Court administering civil justice might not conceivably 
 
 [g) 8 K. & J. 382. Estcourt v. Escoiirt Hop Essence Co. 
 
 {h) Agreements between husband 10 Ch. 276. 
 and wife contemplating a future (A) E.g. StocJcdale v. Omvhyn, 5 
 
 judicial separation (separation de B. & C. 173. 
 
 corps) are void in French law : {!) Soiitheij v. Sherwood, 2 Mer. 
 
 Sirey & Gilbert on Code Civ. art. 435; Laurence v. Smith, Jac. 471. 
 
 1133, no. 55. For a full account of the cases see 
 
 (i) The somewhat analogous ques- JShortt on the Law relating to 
 
 tion — Will the law protect the trade Works of Literature and Art, pp. 
 
 mark of an article intended to de- 3-11, 2d ed. 1884. 
 ceive the public ? — is left open by
 
 270 UNLAWFUL AGREEMENTS. 
 
 pronounce a writing or discourse immoral which yet could 
 not be the subject of criminal proceedings. But we do 
 not know of such a jurisdiction having ever in fact been 
 exercised ; and considering the very wide scope of the 
 criminal law in this behalf {ui), 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 superin- 
 tendency over all books, and might in a summary way 
 restrain the printing or publishing any that contained re- 
 flections 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 {ii). On 
 the whole one may safely say that for all practical pur- 
 poses 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 J^ very curious doctrine of legal morality has been 
 ia u. S. started in some of the United States since the abolition of 
 now held glaverv. It has been held that the sale of slaves being 
 
 void in _ "^ , _ . . " 
 
 some against natural right can be made valid only by positive 
 
 thou^^h -^^^"^^j ^^^ ^^^^ ^° right of action arising from it can subsist 
 lawful after the determination of that law (o) . The Supreme 
 made. Court of Louisiana in particular has adjudged that con- 
 tracts for the sale of persons, though made in the State 
 
 (>«) See Tlnssell on Crimes, Bk. to blasphemous or quasi-blasphe- 
 
 2, c. 24, Starkie on Libel (3rd ed.) mous publications, however, some- 
 
 cc. 33, 34, Shortt, op. cit. Part IV., thing hke the older view seems to 
 
 or J\lr. Blake Odgcrs's Digest ; and be involved in Cowan v. Milbourn, 
 
 Stephen's Digest of the Criminal L. R. 2 Ex. 230. 
 
 Law, artt. 91-95, 161, 172. (o) Story on Contracts \ G71 (1. 
 
 («) Emperor of Austria v. Bay ij- G47, 5th ed.) 
 Kossuth, 3 D. F. J. 217, 238. As
 
 PUBLIC POLICY. 271 
 
 while slavery was lawful, must now bo 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, thinking that neither the 
 Constitutional Amendment of 1865, nor anything that 
 had happened since, avoided a contract good in its incep- 
 tion {p). 
 
 C. Agreements contrary to puhlic 2)olicy. 
 
 Before we go through the different classes of agreements of the 
 which are void as being of mischievous tendency in some <ioctrino of 
 one of certain definite ways, something must be said on policy in 
 the more general question of the judicial meaning of ^^^^^^ • 
 " public policy." That question is, in effect, whether it is 
 at the present day open to Courts of justice to hold trans- 
 actions or dispositions of property void simply because in 
 the judgment of the Coui't it is against the public good 
 that ihej 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 jmisdiction. On tlie other hand there is a good deal of 
 modern and even recent authority which makes it difficult 
 to deny its continued existence. 
 
 As a matter of history, there seems to be little doubt Its exten- 
 that the doctrine of public policy, so far as regards its anxiety of 
 assertion in a general form in modern times, if not its Courts to 
 actual origin, arose from wagers being allowed as the wa,ffers, ° 
 foundation of actions at common law. Their validity was """^^^ 
 
 ■^ wagers as 
 
 assumed without discussion until the judges repented of such were 
 it too late. Eegretting that wagers could be sued on at contracts. 
 all {q), 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 
 
 {p) Boyce v. Tabb, IS Wallace, success) to hold void all wagers on 
 
 546. events in which the parties had no 
 
 {q) Good V. EUiolt, 3 T. R. 693, interest, 
 where Buller, J. proposed (without
 
 272 
 
 UNLAWFUL AGREEMENTS. 
 
 Later re- 
 marks on 
 these 
 deciisions. 
 Qu. How 
 far now 
 law. 
 
 " astute even to an extent bordering upon the ridiculous 
 to find reasons for refusing to enforce them " in particular 
 cases (>•) . 
 
 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 of such matters («) . 
 Where 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 freedom of one of the public in choosing his 
 own conveyance, and to expose him to " the inconvenience 
 of being importuned by rival coachmen" {t). A wager on 
 the duration of the life of Napoleon 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 lawful war- 
 fare («). This was probably the extreme case, and has 
 been remarked on as of doubtful authority (,r). But the 
 Judicial Committee held in 1848, on an Indian appeal 
 (the Act 8 & 9 Yict. c. 109, not extending to British India) 
 that a wager on the price of opium at the next Grovern- 
 ment sale of opium was not illegal (y) . 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 law 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 
 
 ()■) Per Parke, B. Egerton v. Earl 
 Brownloir, 4 H. L. C. at p. 124 ; 
 per Williams, J. ib. 77 ; per Alder- 
 son, B. /7;. 10!). 
 
 («) Athcrfold V. Beard, 2 T. E. 
 610. 
 
 {t) Eltham v. Kingsman, 1 B. & 
 Aid. 6«I3 : this, however, was not 
 strictly necessary to the decision. 
 
 («) UUhcrt V. ISgkcs, IG East, loO. 
 
 (.r) By Alderson, B. in Egerton 
 V. Earl Brownlotc, supra, and in the 
 Privy Council in the case next 
 cited, G Moo. P. C. 312. 
 
 (//) By the Indian Contract Act, 
 s. 30, agreements by way of wager 
 are now void, with an exception in 
 favour of prices for horse-racing of 
 the value of Rs. 500 or upwards.
 
 I'LliMC rOLICY : EGEUTOX f. BROWXLOW. 273 
 
 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 tliouglit at least doubtful whether 
 decisions so produced and so reflected upon can in our own. 
 time be entitled to any regard at all. But it has been 
 said that they establish a distinction of importance 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 opposed to public welfare," but in the 
 latter " any tendency whatever to public mischief " will 
 render it void [a). It is difficult to accept this 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 wath" 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. 
 
 The leading modern authority on " public policy " is the Egerton v. 
 great case of Egerton v. Earl Brouiilow (h). This, although i^w"'^' 
 not a case of contract, must not be left without special 
 mention. By the will of the seventh Earl of Bridgew^ater 
 a series of life interests {c) Avere limited, subject to 
 provisoes which were generally called conditions, but 
 were really conditional limitations by w\ay of shifting 
 
 [z) Ramloll Tltackoorseydass v. remainder to first and other sous in 
 
 Sodjicmnull DhotidmuU, 6 Moo. P. C. tail in the usual way, but a chattel 
 
 300, 310. interest for 99 years, if the taker 
 
 («) 4 H. L. C. 148. should so long live, remainder to the 
 
 [b) 4 H. L. C. 1-2.50. heu's male of his body. See Dav. 
 
 (f) Not estates of freehold with Conv. 3, pt. 1. 351. 
 
 P. T
 
 274 UNLAWFUL AGKEEMENTS. 
 
 uses upon the preceding estates {d). 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 Bridge- 
 water, 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 (e) against 
 eight (/), that the limitations were void as being against 
 public polic3^ 
 Opinions 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 property on speculative notions of impolicy (g) ; the 
 vague and unsatisfactory character of a jurisdiction founded 
 on general opinions of political expedience, as distinguished 
 from a legitimate use of the policy, or rather general inten- 
 tion, 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 (A) ; 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 (?). On the other 
 hand it was pointed out that these limitations held out 
 " a direct and powerful temptation to the exercise of cor- 
 rupt means of obtaining the particular dignity " (/i) ; that 
 besides this the restraint on accepting any other dignity, 
 even if it did not amount to forbidding a subject to obey 
 the lawful commands of the Sovereign (/), tended in pos- 
 sible events to set private interest in opposition to public 
 
 {(I) See Lord St. Leonards' judg- (l-) Piatt, B. at p. 99 ; Lord St. 
 
 ment, 4 H. L. C. at p. 208. Leonards atp. 232; LordBrougham 
 
 {e) Pollock, C. B. and Piatt, B. at p. 172. 
 
 (/) Crompton, Williams, Cress- (/) On this point the prevailing 
 
 •well, Talfourd, Wightman, and opinion, on the whole, was that a 
 
 Erie, JJ., Alderson and Parke, subject cannot refuse a peerage [cp. 
 
 BB. Coleridge, J. thought the 5 Ric. 2. St. 2. c. 4], but cannot be 
 
 limitations good in part only. compelled to accept it by any par- 
 
 ((/) Crompton, J. at p. 68. ticular title, or at all events cannot 
 
 (//) Alderson, B. at p. lOG ; Parko, be compelled to accept promotion by 
 
 B. at p. 123. any particular new title if he is a 
 
 (() Williams, J. at p. 77 ; Parke, peer already. 
 B. at p. 121.
 
 PUBLIC POLICY. 27-5 
 
 duty {in) ; and that tlio provisoes as a wliolo were fitted to 
 l)ias the political and public conduct of the persons 
 interested, and introduce improper motives into it (//), and 
 also to embarrass the advisers of the Crown, and influonco 
 them to recommend the grant of a peerage or of promotion 
 in the peerage for reasons other than merit (o). Lord Opinions 
 Lyndhiirst, Lord Brougham, Lord Trui'O, and Lord ^f Lords. 
 St. Leonards adopted this view. Lord Cranworth dis- 
 sented, adhering to his opinion in the Court below [p], 
 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. Leonards. Tlioir language is very general, and they 
 go far in the direction of claiming an almost unlimited 
 right of deciding eases 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. But, assuming the statement to be historically 
 correct ((/), the inference would seem, with all submission 
 to so great an authority, to be grounded on a confusion 
 between the purely legal and the historical point of view. 
 In theory the common law does not vary. In fact we 
 know that it does vary (though in modern times the limits 
 of variation are narrowed), but the fact of the variation is 
 no argument for an unlimited power of judicial legislation 
 in this more than in any other class of questions. He also 
 said that each case was to be decided upon principle, but 
 
 [m) Pollock, C. B. at p. 151. of trade it appears from the book 
 
 (w) Lord Lyndhurst, at p. 163. that Hull, J. was really aloue in 
 
 \o) Pollock, C. B. and Lord St. his oxDinion in the Dyer's ca. in 2 
 
 Leonards, supra. H. 5. See, however, as to the 
 
 (ju) 1 Sim. N. S. 464. variation of the "policy of the 
 
 \q) In fact it seems doi^htful. law " in general, i?r«« ;!?»•<■; v. J^tom- 
 
 The cases on wagers are anomalous, turd, L. R. G P. C. at p. 29. 
 
 as above shown : and as to restraint 
 
 t2
 
 276 UNLAAVFIL AGREEMENTS. 
 
 abstract rules were not to be laid down {>■). Perhaps this 
 
 may be taken to mean only that (as in the case of fraud) 
 
 the Court is to be guided by recognized principles, but it 
 
 is useless to attempt a minute and exhaustive definition of 
 
 the cases that may fall within them : in other words, that 
 
 we must be content "^ith reasoning by way of analogy 
 
 rather than deduction. If so, the proposition is doubtless 
 
 correct and important (though by no means confined to 
 
 this topic) ; but if it means to say that the Court may lay 
 
 . down new principles of public policy without any warrant 
 
 even of analogy, it seems of doubtful and dangerous 
 
 Effect of latitude. But it is necessary to consider whether the ratio 
 
 fiion itself: decidendi of the case does in truth require any of these 
 
 it does not ^.{^q assertions of iudicial discretion. And it is not very 
 create a _ _ -J _ .... 
 
 new head difficult to perccive that it does not. The limitations in 
 
 policy?" question were held bad because they amounted in effect to 
 a gift of pecuniary means to be used in obtaining a 
 peerage, and offered a direct temptation to the improper 
 use of such means, and the improper admission of private 
 motives of interest in political conduct : in short, because 
 in the opinion of the Court they had a manifest tendency 
 to the prejudice of good government and the administra- 
 tion 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 apparent tendency to mischiefs 
 of this kind, or only a remote possibility of inconvenient 
 consequences. The decision did not create 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. And the broadly expressed language of 
 certain parts of the judgments may be taken, it is 
 
 (>•) At pp. 238-9.
 
 PUBLIC POLICV. 277 
 
 submitted, as applicable only witliiu the bounds of that 
 particular class. 
 
 Egcrton v. Eavl Broicnloiv, however, is certainly a 
 cardinal authority 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 years without producing any visible ill effects (s). 
 
 The view here put forward, that there is really nothing 
 in the case to warrant the invention of new heads of 
 " public policy," seems to be borne out by the following 
 remarks of the late Sir G. Jessel : — 
 
 " It must not be forgotten that you are not to extend arbitrarily those 
 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 
 shall have the utmost liberty of contracting, and that their contracts, 
 when entered 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 contract " (t). 
 
 We now proceed to the several heads of the subject. 
 
 A. First, as to matters concerning the commonwealth in a. rubllc 
 its relations with foreign powers. tmicliiu<^ 
 
 external 
 
 " On the princij)les of the English law it is not com- the State. 
 petent to any " domiciled British (;^) " subject to enter into 
 a contract to do anything which may be detrimental to 
 the interests of his own country " {x). 
 
 (s) Cp. Da Costa v. Jonea, Cow p. {t) Printuig and ytoncrlcal Itegis^ 
 
 729. Wager on sex of third person terlng Co. v. Sampson, 19 Eq. 4G2, 
 
 void, as offensive to that jierson and 465. 
 
 tendiug to indecent evidence : not- {n) The rule does not apply to 
 
 withstanding it did not appear that British siibj ccts domiciled abroad ; 
 
 the person had made any objection. Bell v. Eeid, 1 M. & S. 72G. 
 
 and the cause had in fact been tried (or) 7 E. & B. 782. 
 without any indecent evidence.
 
 278 
 
 UNLAWFUL AGREEMENTS. 
 
 Tracliuj 
 
 with 
 
 euemy. 
 
 Potts V. 
 Bell. 
 
 Effect of 
 ■war on 
 subsisting 
 contracts. 
 
 An agreement may Ibe void for reasons of this kiud 
 eitlier wlien it is for tlie benefit of an enemy, or wlien the 
 enforcement of it woukl be an affront to a friendly state. 
 
 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 pro- 
 hibition of commercial intercourse and correspondence 
 with the inhabitants of the enemy's country, and that 
 such intercourse, except with the licence of the Crown, is 
 illegal" (//). 
 
 The case of Potts v. Bell (s), decided by the Exchequer 
 Chamber in 1800, is the leading authority on this subject. 
 The following points were there decided ; 
 
 It is a principle of the common law (a) 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 purchased from an enemy : and an 
 insurance of goods so purchased is void. 
 
 As to insurances originally effected in time of peace : 
 " When a British subject insm-es against caj)tures, the law 
 infers that the contract contains an exception of captures 
 made by the government of his own country" (b). 
 
 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 
 contract can be lawfully performed by reason of the 
 belligerent governments or one of them having waived 
 their strict rights : and in such case it remains valid. In 
 Clementson v. Blessig (c) goods had been ordered of the 
 plaintiff in England by a firm at Odessa before the de- 
 
 ((/) Espositox.Bowden (iuEx.Ch.), 
 7 E. & B. 7C3, 779. 
 
 (r) 8 T. R. ;548. 
 
 \u) In the Admiralty it was al- 
 ready beyond question : see the 
 Bcries of precedents cited in Futls v. 
 
 Bell. 
 
 {b) Fitrhido V. Rodgcrs, 3 B. & P, 
 191, 200 ; Ex parte Zee, 13 Vcs. G4. 
 
 ((') 11 Ex. 135, and on the subject 
 yeuerally see the reporters' note, 
 pp. 141-5.
 
 TRADING WITH ENKMIE.S. 279 
 
 claration of war witli llussia. By aii Order in Couucil six 
 weeks were given after the declaration of war for Russian 
 merchant vessels to load and depart, and the plaintiff 
 forwarded the goods for shipment in time to be lawfully 
 sliipped under this order : it was held that the sale 
 remained good. 
 
 If the contract cannot at once be lawfully performed, 
 then it is suspended duiing hostilities ((/) unless the nature 
 or objects of the contract be inconsistent with a suspen- 
 sion, in which case " the effect is to dissolve the contract 
 and to absolve both parties from further performance of 
 it" (c). The outbreak of a war dissolves a partnership 
 previously existing between subjects of the two hostile 
 countries (/) . 
 
 In Eqwsito v. Bowdcn (e), a neutral ship was chartered 
 to 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 Russia, 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 con- 
 venient that it should be dissolved at once, so that the 
 parties need not wait indefinitely for the mere chance of 
 the war coming to an end, or its otherwise becoming- 
 possible to perform the contract lawfully. 
 
 {d) Ex i)arte Boitssmahcr, 13 Ves. ance Co. v. Statham, 3 Otto (93 U.S.) 
 
 71. 24 , a curious question arose as to the 
 
 («) Esposito V. Boivden, 7 E. & B. effect of the Civil War ou life i:)olicie3 
 
 763, 783, 27 L. J. Q. B. 17 (in Ex. effected byresidentsin the Southern 
 
 Ch.) revg. s. c. 4 E. & B. 9G3, 24 L. Stateswith a company in the North. 
 
 J. Q. B. 210. For a later applica- It was held by the majority of the 
 
 tion of the same reason of convc- Court that, the premiums having 
 
 nience cp. Gcipel v. Smith, L. R. 7 been unpaid during the war, the 
 
 Q. B. 404. A contract to carry policies were avoided ; but that in 
 
 goods has been held to be only siis- the circixmstances the assured were 
 
 pended by a temporary embargo, entitled to the surrender value of 
 
 though it lasted two years: Hadley their policies at the date of thefir.st 
 
 v. Clti.rJce, 8 T. R. 259. Scd qu. is default. But the opinions that the 
 
 not this virtually overi'uled by Es- contract was avoided without eoni- 
 
 posito V. Boirden ? peusation, and that it revived at 
 
 (/ ) Griswold v. Waddingion, 15 the end of the war, also found 
 
 Johns. (Sup. Ct. N. Y.) 57, in error, support. 
 10 ib. 438. In New York Lifelnsur-
 
 280 UNLAWFUL AGREEMENTS. 
 
 Bills of Questions have arisen on the validity of bills of ex- 
 
 betweeu*' change di-awn on England in a hostile country in time of 
 England -^var. Here the substance of the transaction has to be 
 
 aud hostile ii,,, .,. „, ^ 
 
 country, looked at, not merely the nationality oi the persons who 
 are ultimately parties to an action on the bill. "Where a 
 bill was cbawn on England by an English prisoner in a 
 hostile country, this was held a la^^ful 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 {(/). But a bill drawn by an alien enemy on a 
 domiciled British subject, and indorsed to a British subject 
 residing in the enemy's country, was held to give no right 
 of action even after the end of the war : for this was a 
 dii'ect trading with the enemy on the part of the ac- 
 ceptor {h). It seems proper to observe that these cases 
 must be carefully distinguished from those which relate 
 only to the personal disability of an alien enemy to sue in 
 our Coui'ts during the war (/) . 
 
 Hostilities On the other hand, an agreement cannot be enforced in 
 
 fifendl England which has for its object the conduct of hostilities 
 
 nation against a power at peace with the English government, at 
 
 siibject of ^11 events by rebellious subjects of that power who are 
 
 lawful endeavom-ing to establish their independence, but have 
 
 not yet been recognized as independent by England. 
 
 This was laid down in cases arising out of loans contracted 
 
 in this country on behalf of some of the South American 
 
 Ivopublics before they had been officially recognized. 
 
 " It is contrary to the law of nations, which in all cases of international 
 law is adopted into the municipal code of every civilized country, for 
 persons in England to enter into engagements to raise money to support 
 the subjects of a government in amity M-ith our own in hostilities against 
 
 {/-/) Anioine v. Morsheacl, 6 T.aunt. (J) Such are McConncU v. Hector, 
 
 237, cp. Daubuz v. Morsheacl, ib. 332. 3 B. kV. 113 ; Dramlon v. Nesbitt, 
 
 [h) irUlinoH V. rattcson, 7 Taunt. G T. R. 23. As to prisoners of war 
 
 4 3!). The circumstances of the in- hcvc, Sparoibnrgh v. BannatynCf 1 
 
 dorscment seem immaterial. B. & V. 103.
 
 FOREIGN REVENUE LAWS. 281 
 
 their government, and no right of action can ariac out of buch a trausau- 
 tion"(/^). 
 
 The Supremo Court of the United States has liold, 
 however, that an assignment of sliarcs in a company 
 originally formed for a pm'pose of this kind was so re- 
 motely connected with the original illegality of the loan 
 as not to be invalid between the parties to it (/). 
 
 It is not a " nmnicipal offence by the law of nations " Neutral 
 for citizens of a neutral country to carry on trade with a bellige- 
 blockadcd port — that is, the courts of their own country ^^^^^ ^^ ^*^ 
 cannot be expected to treat it as illegal (though of com^se capture 
 it is done at the risk of seizure, of which seizure, if made, ^i'^\yf°i 
 the neutral trader or his government cannot complain) : 
 and agreements having such trade for their object — e.g. 
 a joint adventm^e in blockade-running — are accordingly 
 valid and enforceable in the coiu-ts of the neutral state {m). 
 
 Several decisions on this topic of aiding or trading with 
 enemies have been given in the American Courts in cases 
 arising out of the Civil AVar. They will be found collected 
 in the last edition of Mr. Story's work (n) . 
 
 It is admitted as a thing required by the comity of Excep- 
 nations that an agreement to contravene the laws of a treatment 
 foreign country would in general be unlawful. But it is of foreign 
 said that revenue laws (in practice the most important laws, 
 cases) are excepted, and that " no country ever takes notice 
 of the revenue laws of another " (o). 
 
 (k) Best, C. J., De Wiitz y. Hen- («) Texas y. White, 7 Wallace, 700 
 
 dricks, 2 Bing. 314. Cp. Thonip.sonv. (where however the chief points are 
 
 Fuuies, 2 Sim. 194, where the Ian- of constitutional law) ; Hanaucr v. 
 
 guage seems unnecessarily wide. Loaiie, 12 ib. 342 ; Story on Con- 
 
 {}) McBlairx.GMes^ll'H.o^a.rCL, tracts, § 744. Sprott \. U. S., 20 
 
 232. Wall. 4o9, goes beyond anything in 
 
 {»}) Ex parte Chavasse, 4 D. J. S. our books, and the dissent of Field, 
 
 6;j5, see Lord Westbury's judg- J. seems well founded. 
 meut; The Helen, L. R. 1 Ad. & (o) Lord Mansfield in 7/o//«(?« v. 
 
 Ecc. 1, and American authorities Johnson, Cowp. 341. 
 there cited; Kent, Comm. 3. 267.
 
 282 UNLAWFUL AGREEMENTS. 
 
 As a general proposition, however, this is strongly dis- 
 approved by most modern writers as contrary to reason 
 and justice (p). It should be noted that our Courts, so far 
 as they have acted upon it, have done so to the prejudice 
 of our own revenue quite as much as to that of foreign 
 states. Thus a complete sale of goods abroad by a foreign 
 vendor is valid, and the price may be recovered in an 
 English Court, though he knew of the buyer's intention 
 to smuggle the goods into England. " The subject of a 
 foreign country is not bound to pay allegiance or respect 
 to the revenue laws of this" (q). But it is admitted that 
 an agreement to be performed in England in violation of 
 English revenue laws would be void — as if, for example, 
 the goods were to be smuggled by the seller and so 
 delivered in England. And a subject, domiciled in the 
 British dominions (though not in England or within the 
 operation of English revenue laws) cannot recover in an 
 English Court the price of goods sold by him to be smuggled 
 into England (>■) ; and even a foreign vendor cannot recover 
 if he has himself actively contributed to the breach of 
 EngHsh revenue laws, as by packing the goods in a manner 
 suitable and to his knowledge intended for the purpose of 
 smuggling (.s). 
 
 The cases upholding contracts of this kind, whether as 
 against our own or as against foreign laws, would probably 
 not be now extended beyond the points specifically decided 
 by them, and perhaps not altogether upheld (/). There is 
 one modern case which looks at first sight like an authority 
 for saying that our Courts pay no regard to foreign shipping 
 
 (;;) Kent, Comm. 3. 263-26G ; certain, from this case, that mere 
 
 Wharton, Conflict of Laws, i^^§ 48-1- knowledge of the buyer's intention 
 
 5. And see Westlake on Private would disentitle him. 
 
 International Law (1880), pp. 231, (.s) lVa>jmcU\. Heed, .5 T. R. 509. 
 
 238. (0 It must bo remembered that 
 
 {'/) Holman v. Johnson, Cowp. 431 ; the general law as to sale of goods, 
 
 Pcllccat V. AngcU, 2 C. M. & R. &c., which the seller knows will be 
 
 311-3, per Lord Abinger, C. B. used for an unlawful purpose, was 
 
 {)•) Clugas V. I'cnaluna, 4 T. R. not fully settled at the date of these 
 
 4GC. It seems, but it is not (puto authorities.
 
 ACaiEEMEXTS FOR CORRUPT INFLIEN'CE. 283 
 
 registration laws : but it really goes u-pon a dill'erent prin- 
 ciple, and, besides, the law of the United States was not 
 properly brought before the Court (k). 
 
 As to instruments which cannot be used in their own Furclya 
 country for want of a stamp, it is now settled that regard la^f 
 will be paid by the Courts of other States to the law which 
 regulates them, and the only question is as to the real effect 
 of that law. If it is a mere rule of local procedure, re- 
 quiring the stamp to make the instrument admissible in 
 evidence, a foreign Coui't, not being bound by such rules of 
 procedure, will not reject the instrument as evidence : it is 
 otherwise if the local law " makes a stamp necessary to 
 the validity of the instrmnent," i.e. a condition precedent 
 to its having any legal effect at all (^•) . 
 
 B. As to matters touching good government and the b. Public 
 administration of justice. toudnm^ 
 
 iutcnial 
 
 It is needless to produce authorities to show that an ment. 
 agreement whose object is to induce any ojBicer of the CoiTupt or 
 State, whether judicial or executive, to act partially or ™flvlerice 
 corruptly in his office, must in any civilized country be °^ public 
 absolutely void. But an agreement which has an apparent ie,?is- 
 tendency that way, though an intention to use unlawf id ^'''^^'^■^• 
 means be not admitted, or even be nominally disclaimed, 
 will equally be held void. In the case of Egcrton v. Earl 
 Brownlow, of which an account has been given a few 
 pages above, it was held that the descent of an estate could 
 not be made to depend on any public event in which the 
 interest of the nation was concerned : or, to put it a little 
 more broadly in one way and a little more definitely in 
 another, that all transactions are void which create con- 
 tingent interests of a nature to j)ut the jpressure of 
 
 {>i) S/urrjJv.Tai/Ior, 2711. 801, sec (j;) Soc Wharton, Conflict of 
 
 Liudley on Partnership, 1. 203. Laws, §§ G85-8 ; Bristow v. Scquv- 
 
 ville, 5 Ex. 275.
 
 284 
 
 UNLAWFUL AGREEMENTS. 
 
 extraneous and improper motives upon the counsels of the 
 Crown or the political conduct of legislators. 
 MarsliiiU A decision in the American Supreme Court which hap- 
 more, &c., pens to he of nearly the same date shows that an agree- 
 ^p- ment is void which contemplates the use of underhand 
 
 Court means to influence legislation. In Marshall v. BaUiinore 
 '' and Ohio Itailroad Co. (//) the nature of the agreement 
 sued on appeared hy a letter from the plaintiff to the 
 joresident of the railway hoard, in which ho proposed a 
 plan for obtaining a right of way through Yirginia for the 
 company and offered himself as agent for the purpose. 
 The letter pointed (though not in express terms) to the use 
 of secret influence on particular members of the legisla- 
 ture : and it referred to an accompanying document which 
 explained the nature of the plan in more detail. This 
 document contained the following passage : — " I contem- 
 plate the use of no improper means or appliances in the 
 attainment of your purpose. My scheme is to surround 
 the legislature with respectable agents, whose persuasive 
 arguments may influence the members to do you a naked 
 justice. This is all I require — secrecy from motives of 
 policy alone — because an open agency would furnish 
 ground of suspicion and unmerited invective, and might 
 weaken the impression we seek to make." The arrange- 
 ment was to be as secret as practicable : the company was 
 to have but one ostensible agent, who was to choose such 
 and so many sub-agents as he thought proper : and the 
 payment was to be contingent on success. The actual 
 contract was made by a resolution of the directors, accord- 
 ing to which agents were to be employed to " superintend 
 and fm-ther " the contemplated application to the legisla- 
 ture of Virginia " and to take all projior measures for that 
 purpose ; " and their right to any compensation was to be 
 contingent on the passing of the law. The Supreme 
 Court held, first, that it was sufhciently clear that the con- 
 
 (//) IG Howard, 314.
 
 AGREEMENTS FOR CORRIPT INFLrENCE. 285 
 
 tract was iu fact made on tlie footing- of the previous com- 
 munications, and was to be carried out in the manner 
 there proposed ; and secondly, that being so made it was 
 against public policy and void. 
 
 " It is an undoubted principle of the common law that it will not lend 
 its aid to enforce a contract to do an act that is illegal, or which is incon- 
 sistent with sound morals or piiLlic policy ; or which tends to corrupt or 
 contaminate, by improper influences, the intcgi'ity of our social or political 
 institutions. . . . Legislators slujuld act from high considerations 
 of public duty. Public policy and sound morality do thcrefoi'e impera- 
 tively require that Courts should put the stamp of their disapprobation 
 on every act and pronounce void evciy contract the ultimate l_qu. imme- 
 diate ?] or probable tendency of which would be to sully the piu'ity or 
 mislead the judgments of those to whom the hig"h trust of legislation is 
 confided." [The judgment then points out that persons interested in the 
 results of pending legislation have a right to irrge their claims either in 
 person or by agents, but in the latter case the agency must be open and 
 acknowledged.] "Any attempts to deceive persons intrusted with the 
 high fimctions of legislation by secret combinations, or to create or bring 
 into operation undue influences of any kind, have all the effects of a dii-ect 
 fraud on the public " {z). 
 
 And the result of the previous authorities was stated 
 to be — 
 
 " 1st. That all contracts for a contingent compensation for obtaining 
 legislation, or to use personal or any secret or sinister influence on legis- 
 lators, are (a) void by the policy of the law. 
 
 "2nd. Secrecy as to the character under which the agent or solicitor 
 acts tends to deception and is immoral and fraudulent, and where the 
 agent contracts to use secret influences, or voluntarily without contract 
 with his principal iises such means, he cannot have the assistance of a 
 Court to recover compensation. 
 
 " 3rd. That what in the technical vocabulary of politicians is termed 
 * log-rolling ' {l>) is a misdemeanour at common law punishable by 
 indictment " (c) . 
 
 So in a later case (d) an agreement to j)rosecute a claim 
 before Congress by means of personal influence and solici- 
 
 (z) 16 Howard, at pp. 334-5. bills. 
 
 (ff) "t«" by a clerical error in the (c) 16 Howard, 33G. 
 
 report. {d) Tri.st v. CliUd, 21 Wall. 441. 
 
 (i) Ai-rangements between mem- See, too, Meguirev. C'orirhie, 11 Otto 
 
 bers for the barter of votes on private (lOl U. S.) 108.
 
 286 
 
 UNLAWFUL AGREEMENTS. 
 
 Otherwise 
 of contract 
 by person 
 interested 
 to with- 
 draw op- 
 position ; 
 Simpson r. 
 Lord 
 Howden. 
 
 Sale of 
 offices, 
 &c. at 
 common 
 law. 
 
 tations of the kind known as " lobby service " has been 
 held void. 
 
 But as it is o^^en to a landowner or other interested 
 person to defend his interest by all lawful means against 
 proposed legislation from which he apprehends injury, so 
 it is open to him to withdraw or compromise his claims on 
 any terms he thinks fit. There is no reason against bar- 
 gains of this kind any more than against a compromise 
 of disputed civil rights in ordinary litigation. And the 
 lawfulness of such an agreement is not altered if it so 
 happens that the party is himself a member of the legisla- 
 ture. In the absence of anything to show the contrary, ho 
 is presumed to make the agreement solely in his character 
 of a person having a valuable interest of his own in the 
 matter, and he is not to be deprived of his rights in that 
 character merely because he is also a legislator (f). "A 
 landowner cannot be restricted of his rights because he 
 happens to be a member of Parliament" (/). This may 
 seem a little anomalous : but it must be remembered that 
 in practice there is little chance of a conflict between duty 
 and interest, as the legislature generally informs itself on 
 these matters by means of committees proceeding in a 
 quasi- judicial manner. Of course it would be improper 
 for a member personally interested to sit on such a com- 
 mittee. 
 
 On similar grounds it is said that the sale of offices 
 (which is forbidden by statutes extending to almost every 
 case) is also void at common law (g) . However, there 
 may be a lawful partnership in the emoluments of offices, 
 although a sale of the offices themselves or a complete 
 assignment of the emoluments would be unlawful (//), 
 The same principles are applied to other appointments 
 which though not exactly public offices are concerned with 
 
 (f) Simpson V. lord Uowdcii, 10 
 A. &E. 793, 9 CI. &F. Gl. 
 
 (/) Kindersley, V.-C. in Harl of 
 ShrcwKhitrt/ v. N. Staffordshire lli/. 
 Co. 1 E(i.'593, G13. 
 
 {(/) Htniington v. Bii Chantel, 2 
 Swanst. 159,?;.; IIopkinsY. Proicott, 
 4 C. B. 578, per Coltman, J. 
 
 (A) Sterri/v. Clifton, 9 C. B. 110.
 
 SALE OF OFFICES. 287 
 
 matters of public interest. " Public policy requires that 
 there shall be no money consideration for the appointment 
 to an office in which the public are interested : the public 
 will be better served by having persons best qualified to 
 fill offices appointed to them ; but if money may be given 
 to those who appoint, it may bo a temptation to them to 
 appoint improper persons." Therefore the practice which 
 liad grown up in the last century of purchasing commaiids 
 of ships in tiie East India Company's service was held un- 
 lawful, no loss on this ground than because it was against 
 the Company's regulations (/). 
 
 In like manner a secret agreement to hand over to 
 another person the profits of a contract made for the public 
 service, such as a Post Office contract for the conveyance 
 of mails, is void (A-). 
 
 Nevertheless many particular offices, and notably subor- 
 dinate offices in the courts of justice, were in fact saleable 
 and the subject of sale by custom or otherwise until quite 
 modern times. But the commission of an officer in the 
 army could not be the subject of a valid pledge even 
 under the system of purchase recently abolished (/). 
 
 For like reasons certain assignments of salaries and Assis-n- 
 pensions have been held void, as tending to defeat the s^i."i^ie.s 
 }iublic objects for w^hich the original grant was intended. 
 Thus military pay and judicial salaries are not assignable. 
 The rule is that " a pension for past services may be 
 aliened, but a pension for supporting the grantee in the 
 performance of future duties is inalienable": 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 (m). But an assign- 
 ment by the holder of a public office of a siun equivalent 
 to a proportionate part of salary, and secured to his legal 
 
 ((') Blaclford v. Trcston, 8 T. R. (w) Davis y. BiiJce of Marlborough, 
 
 89, 93. 1 Swanst. 74, 79. Cp. Arbuthnot v. 
 
 [k) Osborne v. WiUiams, 18 Ves. JS'orlo)!, 5 Moo. P. C. 219. Aud see 
 
 379. authorities collected in notes to 
 
 (,') CoUijer V. Fallon, T. & R. 459. %«// v. Howies, 2 Wh. & T. L. C.
 
 288 
 
 UNLAWFUL AGREEMENTS. 
 
 personal representatives on his death by the terms of his 
 appointment, is not invalid, such a sum being simply a 
 part of his personal estate like money secured by life 
 insurance («). In a late case a mortgage by an officer of 
 the Customs of his disposable share in the " Customs 
 Annuity and Benevolent Fund " created by a special Act 
 was unsuccessfully disputed as contrary to the policy of 
 the Act (o). 
 
 Interfer- 
 ence with 
 course of 
 justice. 
 In crimi- 
 nal pro- 
 ceedings. 
 "Stifling 
 prosecu- 
 tions." 
 Williams 
 V. Bayley. 
 
 Keir v. 
 Leeman. 
 
 Agreements for the purpose of " stifling a criminal 
 prosecution " are void as tending to obstruct the course of 
 public justice. An agreement made in consideration 
 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 cu'cumstances 
 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 cIo^ti by Lord Westbury 
 is " That you shall not make a trade of a felony " (p). 
 
 However the principal dii'ect authority must still be 
 sought in the earlier case of Keir v. Leeman {q). The 
 Court of Queen's Bench there said : — 
 
 " The principle of law is laid down by Wilmot, C. J. in Collins v. 
 Blantcrn (r) that a contract to withdraw a prosecution for perjury and 
 consent to give no evidence against the accused is founded on an unlaw- 
 ful 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 umocent, the law was abused for the pm-pose of 
 extortion ; if guilty, the law was eluded by a coiTupt comin'omise screen- 
 ing the criminal for a bribe. [The cases are then reviewed.] We shall 
 probably be safe in laying it down that the law will permit a compromise 
 (jf all offences, though made the subject of criminal prosecution, for 
 which offences the injured i>arty 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 ' ' (,v) . 
 
 {») Arbulhnot v. Norton, supra. 
 [()) Maclean's trusts, 19 Eq. 274. 
 [p) Williams Y. Baijleij, L. R. 1 
 11, L. 200, 220. 
 
 371 
 
 {q) G Q. B. 308, in Ex. Ch. 9 Q. B. 
 
 {r) 1 Sm. L. C. 309, 382. 
 
 (■v) Ace. in Clnbb v. llulson, 18 C,
 
 COMPOUNDING OFFENCES. 280 
 
 Accordingly the Court held that an indictment for 
 offences including riot and ohstruetion of a public officer 
 in the execution of his duty cannot bo legally the subject 
 of a compromise. The judgment of the Exchequer Cham- 
 ber {f) affirmed this, but showed some dissatisfaction even 
 ■with the limited right of compromise admitted in the 
 Com-t below. It was observed that there was really very 
 little authority for it ; and although it was not actually so 
 laid down, it looks as if the Com't would have been ready 
 to decide if necessary that the compromise of any criminal 
 offence is illegal. In a late case, however, the Court of 
 Appeal entertained no doubt that where there is a choice 
 of a civil or criminal remedy a compromise of criminal as 
 well as civil proceedings is lawful (k). 
 
 It is not compounding felony for a person whose name 
 has been forged to a bill to adopt the forged signatm'e 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 cannot himself actively 
 dispute it (on the principle j^otior est condicio defendentis^ of 
 which afterwards), nor can his trustee in bankruptcy, who 
 for this pm'pose is in no better position than himself, as there 
 is in any case no offence against the bankrupt laws [ji-). 
 
 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 secmity of the 
 bail(y). 
 
 The compounding of offences under penal statutes is 18 Eliz. 
 expressly forbidden by 18 Eliz. c. 5, s. 5. 
 
 c. 5. 
 
 B. N. S. 4U, lield that forbearance («) Fisher cj- Co. v. ApolUnaris Co. 
 
 to prosecute a charge of obtaining- 10 Ch. 297. 
 
 moneybyfalsepretences is an illegal (.c) Otherwise where, after an 
 
 consideration. What if there is no act of bankruptcy, the bankrupt's 
 
 real ground for a prosecution, the money has been paid for stifling a 
 
 supposed offence being an act not prosecution : there the trustee can 
 
 criminally punishable? See per Fry, recover it: Ex parte Wolverhampton 
 
 J. 8 Ch. D. at p. 477. It is sub- Bankincj Co., 14 Q. B. D. 32 ; Kv 
 
 mitted that the agreement would be parte Caldecoit, 4 Ch. D. 150. 
 
 void for want of consideration. {y) Wilson v. Stntanell, 7 Q. B. 
 
 (0 Q. B. at p. 392. J). 548. 
 
 P. V
 
 290 
 
 UNLAWFUL AGREEME^'TS. 
 
 Compro- 
 mise of 
 election 
 I)etition. 
 
 In civil 
 proceed- 
 ings. Com- 
 promise 
 impro- 
 perly 
 procured : 
 
 Cooth V. 
 Jackson. 
 
 Secret 
 agreement 
 as to con- 
 duct of 
 ■winding- 
 up: 
 
 Elliott V. 
 Richard- 
 son. 
 
 An election petition, tliough not a criminal proceeding, 
 is a proceeding of a public character and interest which 
 may have 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 (s). 
 
 In like manner an agreement for the collusive conduct 
 of a divorce suit is void (a), and an agreement not to 
 expose immoral conduct has been held void as against 
 public policy (b). 
 
 Agreements relating to proceedings in civil courts, and 
 involving anything inconsistent with the full and impartial 
 course of justice therein, though not open to the charge 
 of anything like actual corruption, are likewise held void. 
 Where an agreement for compromise of a suit (a thing 
 regarded as in itself rightful and even laudable) was in 
 fact founded on information privily given to one of the 
 parties by an officer of tlie Court in violation of his duty 
 (such information not being specific, but a general inti- 
 mation that it would be for the party's interest to compro- 
 mise), Lord Eldon held that it could not be enforced {(■). 
 
 A shareholder in a company which was in course of 
 compulsory winding-up agreed with other shareholders, 
 who were also creditors, in consideration of being indem- 
 nified 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 : it was held that " such an 
 agreement amounts to an interference with the course of 
 public 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 shareholders relieved ; and therefore any secret agree- 
 
 {z) CoppocJc V. Bourr, 4 M. & W. 
 3G1. 
 
 {(i) Hope 
 T.U. 
 
 nope, 8 D. M. G. 
 
 (A) Urou-n V. Jlrinc, 1 Ex. D. 5. 
 (r) Couth V. Jackson, 6 Vcs. 11, 
 31, 32.
 
 ARIJITRATION HOW FAR ENFORCE ARLE. 291 
 
 mont to delay proceedings to tlio prejudice of the other 
 sliareholders and creditors is void {(/). TJiis comes near 
 to the cases of secret agreements with particular creditors 
 in bankruptcy or composition : and those cases do in fact 
 rest partly on this ground. But the du'oct fraud on tlie 
 otlior creditors is the chief element in tliem, and we have 
 therefore spoken of them under an earlier head (p. 238). 
 
 Agreements to refer disputes to arbitration are, or rather Agree- 
 were, to a certain extent regarded as encroachments on rcferenco 
 the proper authority of courts of justice by the substi- *? arbitra- 
 tution of a "domestic forum" of the parties' own making, far valid at 
 At common law such an agreement, though so far valid 5^°"^™°^ 
 that an action can be maintained for a breach of it {<■), 
 does not "oust the ordinary jurisdiction of the Court" — 
 that is, 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 {(j). It is said however "that a special covenant 
 not to sue ma// make a difference " {(j). And the law has Practi- 
 not been directly altered (r/) : but the Common Law Pro- forc^able 
 cedure Act, 1854 (17 & 18 Yict. c. 125, s. 11), gave the Y'^f^lct 
 Com'ts a discretion to stay proceedings in actions or suits 18.54.' 
 on the subject-matter of an agreement to refer, which 
 amounts in practice to enabling them to enforce the agree- 
 ment : and this discretion has as a rule been exercised by 
 Courts both of law {//) and of equity (/) in the absence of 
 special circumstances, such as a case where a charge of 
 fraud is made, and the party charged with it desii*es the 
 inquuy to be public (/.•) , or where the defendant appeals 
 
 {d) Elliott V. Michardson, L. R. 5 (li) Handegger v. Holmes, L. R. 1 
 
 C. P. 744, 748-9, per "Willes, J. C. P. 679; SeligmamiY.LeBoutillier, 
 
 (e) Livingston v. Ralli, 5 E. & B. il>. G81. 
 
 132, 24 L.'J. Q. B. 269. (/) Willesford v. Watson, 14 Eq. 
 
 (/) Street V. Right/, 6 Ves. 815, 572, 8 Ch. 473; Pkws v. Baker, 16 
 
 818. Eq. 564. 
 
 (^) CooleY. Cooke, 4 Eq. 77, 86-7. (/.) E/issell v. liiissell, 14 Ch. D. 
 
 at p. 476 (.Jessel, M.E,.). 
 
 u2
 
 292 UNLAWFUL AGREEMENTS. 
 
 to an arbitration clause not in good faith, but merely for 
 the sake of vexation or delay (/). A question whether on 
 the true construction of an arbitration 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 be decided by the Com-t (m). 
 
 And when the question is whether an agreement con- 
 taining 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 agree- 
 ment (>?). 
 
 Special Certain statutory provisions for the reference to arbitra- 
 
 arbitratwn ^ou of internal disputes in friendly and building societies 
 clauses, have been decided (after some conflict) to be compulsory 
 
 and to exclude the ordinary jurisdiction of the Courts (o). 
 
 The Eailway Companies Arbitration Act, 1859, is also 
 
 compulsory {p). 
 Agree- Moreover parties may if they choose make arbitration 
 
 parties a Condition precedent to any right arising at all, and in 
 "i^ht'^f^^ that case the foregoing rules are inapplicable : as where 
 action the contract is to pay such an amount as shall be deter- 
 on arbitra- i^i^^ed by arbitration or found due by the certificate of a 
 ^^0^- particular person (q) . Whethei this is in fact the contract, 
 
 [l) liUq. 518; JrittY. Corcoran, Building Society, 15 Eq. 333; 
 
 8 Cli. 470, n., 16 Eq. 671. The IVright v. Monarch Investment 
 
 enactment applies only where there Building Society, 5 Ch. D. 726; 
 
 is at the time of action brought an Hack v. London Provident Building 
 
 existing agreement for reference Society, 23 Ch. D. 103 ; Municipal 
 
 Tvhii;h can be carried into effect. Building Society v. Kent, 9 App. Ca. 
 
 Randell, Saunders ^ Co. v. Thorn})- 260. Not so where the real ques- 
 
 son (C. A.), 1 Q. B. D. 748. tion is whether a party claiming 
 
 (w) Piercy v. Young (C. A.), 14 against tlie society is a member of 
 
 Ch. J). 200, 208, per Jessel, M.R., t\\QHoc\etryn,ti\\l, Prentice Y.London, 
 
 qualifying the apparent etfect of L. R. 10 C. P. G79. 
 
 Willcsford \. ?Frt<w«, 8 Ch. 473. {p) Watford <S( Kiclcmansworth Ry . 
 
 («) Per James, L. J. in Llanelh/ Co. v. Z. S; N. IF. By. Co., 8 Eq. 
 
 B>/. cj- Bock Co. V. Z. ^- A^. ir. By. 231. 
 
 Co., 8 Ch. at p. 948. (7) Scott v. Avery, 5 H.L. C. 811 ; 
 
 (0) Thompson v. Planet Benefit which docs not overrule the former
 
 CHAMPERTY AND MAINTENANCE. 293 
 
 or it is an absolute contract to pay in the first instance, 
 with a collateral provision for reference in case of differenoo 
 as to the amount, is a question of construction on which 
 there has Leon some difference of opinion in recent cases (>•). 
 
 We now come to a class of transactions whicli are Mainte- 
 specially discom-aged, as tending to pervert the due course "^^am-^^ 
 of justice in civil suits. perty. 
 
 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" (s). Maintenance is 
 properly a general term of which champerty is a sj)ecies. 
 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 the land or part of the debt, or any other thing iu 
 plea or suit; and this is called ccojibipartia [chainparf, 
 campi part it io] , champertie." 
 
 The second is " when one maintaineth the one side 
 without having any part of the thing in plea or suit" (/). 
 Champerty may accordingly be described as " maintenance 
 aggravated by an agreement to have a part of the thing iu 
 dispute " {t(). 
 
 Agreements falling distinctly within these descriptions 
 are punishable under certain statutes (,r). It has always 
 
 general law on tlie subject, see tlie {t) Co. Lit. 368 b. Every cham- 
 
 judg-ments of Brett, J., and Kelly, perty is maintenance, 2 Eo. Ab. 
 
 C. B., in Ex. Ch. in Edivards v. 119 R. 
 
 Aheraip-on, ^r. Socicti/, 1 Q. B. D. [n] 'Bo\\\\, argAn Sprije v. Porliv, 
 
 5G3 ; 'Scott v. Corporation of Liver- 7 E. & B. 58, 26 L. J. Q. B. 64. 
 pool, 3 DeG. & J. 334. Cp. Collins (x) 3 Ed. 1 (Stat. Westm. 1), c. 
 
 V. Lockr (J. C.) 4 App. Ca. G74, 689. 25 ; 13 Ed. 1 (Stat. Westm. 2), c. 
 
 (;•) Elliott V. Royal Exchange As- 49 ; 28 Ed. 1, st. 1, c. 11 ; Stat, de 
 
 snraiice Co., L. R. 2 Ex. 237 ; JDnic- Conspiratoribns, temp, iucert. ; 20 
 
 so?i V. Fitzgerald (C. A.), 1 Ex. D. Ed. 3, c. 4 ; 1 Eic. 2, c. 4 ; 7 Kic. 2, 
 
 257, revg. s. c. L. R. 9 Ex. 7. c. 15 ; and 32 H. 8, c. 9, of which 
 
 («) By Lord Abinger in Trosser more presently. 
 V. Edmonds, 1 Y. & C. Ex. 481, 497.
 
 294 
 
 UNLAWFUL AGREEMENTS. 
 
 Relation 
 of the 
 statutes 
 to the 
 conimou 
 law, and 
 modem 
 policy of 
 the law. 
 
 been considered, liowever, that champerty and maintenanco 
 are offences at common law, and that the statutes only 
 declare the common law with additional penalties (y) . 
 
 Whether by way of abundant caution or for other 
 reasons, the law was in early times applied or at any rate 
 asserted with extreme and almost absurd severity (z). It 
 was even contended, as we had occasion to see in the last 
 chapter, that the absolute beneficial assignment of a con- 
 tract was bad for maintenance. The modern cases, how- 
 ever, proceed not upon the letter of the statutes or of the 
 definitions given by early -wi-iters, but upon the real object 
 and policy of the law, which is to repress that which 
 Knight Bruce, L. J. spoke of as " the traffic of merchan- 
 dising in quarrels, of huckstering in litigious discord," 
 which decent people hardly require legal knowledge to 
 warn them from, and which makes the business and profit 
 of " breedbates, barretors, counsel whom no Inn will O'wti, 
 and solicitors estranged from every roll " (a). On the 
 other hand the Courts have not deemed themselves bound 
 to permit things clearly within the mischief aimed at any 
 more than to forbid things clearly without it. They have 
 in fact taken advantage of the doctrine that the statutes 
 are only in affirmance of the common law to treat them as 
 giving indications rather than definitions ; as bearing mt- 
 ness to the general "policy of the law" but not exhausting 
 or restricting it. It is not considered necessary to decide 
 that a particular transaction amounts to the actual offence 
 of champerty or maintenance in order to disallow it as a 
 ground of civil rights : it will be void as " savouring of 
 maintenance" if it clearly tends to the same kind of 
 mischief. 
 
 The cases are somewhat numerous, and various in their 
 special circumstances. A full examination of them would 
 lead us to a length out of proportion to the place of the 
 
 (y) rcchellx. Watson, 8 M. & W. 
 G91, 700; 2 Ko. Ab. 114 1). 
 
 iz) See Bacon's Abridgment, 
 
 Maintenance, A. (5. 250). 
 
 [a) lleyncll v. Sprye, 1 D. M. G. 
 at pp. (380, 686.
 
 CHAMPERTY. 295 
 
 subject bore (/>). Tboir general effect, bowevcr, is suf- 
 ficiently clear. Of maintenance pure and simple, an im- 
 portant bead in tbo old books, tbere are very few modern 
 examples {(■) ; almost all tbe decisions illustrate tbe more 
 special rule against cbamperty, namely tbat " a bargain 
 wbereby the one party is to assist tbe otber in recovering 
 propcrt}^, and is to sbare in tbe proceeds of tbe action, is 
 illegal " (c/) . On this bead tbo rules now establisbed appear 
 to be as follows : 
 
 (oc) An agreement to advance funds or supply evidence Rules as to 
 witb or witbout professional assistance (or, it seems, pro- pclty. 
 fcBsional assistance only) {e) for tbe recovery of property 
 in consideration of a remuneration contingent on success 
 and proportional to or be paid out of tbe property re- 
 covered is void (/). 
 
 (/3) A solicitor cannot purcliase tbe subject-matter of a 
 pending suit from bis client in tbat suit (g) : but be may 
 take a security upon it for advances already made and 
 costs already due in tbe suit {//). 
 
 (7) Except in tbe case last mentioned, tbe purchase of 
 property tbe title to which is disputed, or which is the 
 subject of a pending suit, or an agreement for such pur- 
 chase, is not in itself unlawful (/) : but such an agreement 
 is unlawful and void if the real object of it is only to 
 enable tbe purchaser to maintain the suit {J). 
 
 (i) For an account of the deci- (/) Stanley v. Jones, 7 Birig-. 3G9 ; 
 
 sious see Leake's Dijjfest, 730. Reynell v. Sprye, 1 D. M. G. 660 ; 
 
 (c) One\B Bradlaiigliy.Netvdegate, Sprye v. Porter, 7 E. & B. 58, 20 L. 
 
 11 Q. B. D. 1. J. Q. B. 64 ; Etdlcy v. Hutlcy, L. R. 
 
 id) Bar Blackburn, J. Etitlcy v. 8 Q. B. 112. 
 
 Hldley, L. R. 8 Q. B. 112. {g) Wood v. Doirnes, 18 Ves. 120; 
 
 (c) iPer Jessel, M. R. lie Attorneys Simpson v. Lamb, 7 E. & B. 84. 
 
 and Solicitors Act, 1 Ch. D. 573, (/;) Anderson v. liaddife (Ex. 
 
 wheretheagrcement was topaythe Ch.), E. B. & E. 806, 29 L. J. Q. 
 
 solicitors in the event of success a B. 128. 
 
 percentage of the property reco- (?) Hunter v. Baitiel, 4 Ha. 420 ; 
 
 vered; but probably the real mean- Knight v. Bowyer, 2 De Gr. & J. 421, 
 
 ing of it was that the solicitors 444. 
 
 should find the funds. Cp. Grclly. {J) Frosserv. Edmonds, 1 Y. & C. 
 
 Levy, 16 C. B. N. S. 73, and Strange Ex'. 481 ; Harrington v. Long, 2 My. 
 
 V. Brennan, cited p. 297 below. & K. 590 ; De Hoghton v. Money, 2
 
 296 
 
 "UNLAWFUL AGREEMENTS. 
 
 We proceed to deal shortly with these propositions in 
 order. 
 
 («) Agi-ee- 
 ment to 
 furnish 
 money or 
 e^•idence 
 for litiga- 
 tion on 
 terms of 
 sharing- 
 property- 
 recovered 
 is void. 
 
 a. This rule was laid down in very clear terms by Tiudal, 
 C. J. in Stanley v. Jones {k), which seems to be the first of 
 the modern cases at law. 
 
 "A bargain by a man who has evidence in his own possession respect- 
 ing a matter in dispute between third persons and who at the same time 
 professes to have the means of procuring more evidence, to purchase 
 from one of the contending parties, at the price of the evidence which 
 he so possesses or can procure, a share of the sum of money wliich shall 
 be recovered by means of the i^roduction of that very evidence, cannot 
 be enforced in a Court of law." 
 
 Verbal 
 evasions 
 ineffec- 
 tual. 
 
 It is quite immaterial for this purpose whether any liti- 
 gation is already pending or not, although the offence of 
 maintenance is properly maintaining an existing suit, not 
 procuring one to be commenced. It is obvious that the 
 mischief is even greater in the case where a person is 
 instigated by the promise of indemnity in the event of 
 failure to undertake litigation which otherwise he would 
 have not thought of. If a person who is in actual posses- 
 sion of certain definite evidences of title proposes to deliver 
 them to the person whose title they suj)port on the terms 
 of having a certain share of any property tliat may be re- 
 covered by means of these evidences, there being no suit 
 depending, and no stipulation for the commencement of 
 any, this is not unlawful ; for litigation is not necessarily 
 contemplated at all, and in any case there is no provision 
 for maintaining any litigation there may be (/). But it is 
 in vain to put the agreement in such a form if these terms 
 are only colourable (;;i), and the real agreement is to supply 
 evidence generally for the maintenance of an intended 
 suit : the illegal intention may be shown, and the trans- 
 
 Ch. 1G4 ; Seeaw. Larvson (C. A.), 15 
 Cli. D. 426, where the j)recise ex- 
 tent of tho doctrine is treated as 
 doubtful. 
 
 {k) 7 Bing. 369, 377. 
 
 [t] Sprye v. I'urter, 7 E. & B. 58, 
 26 L. J. Q. B. 64. 
 
 (w) As a matter of fact, it is diffi- 
 cult to suppose that they could ever 
 be otherwise.
 
 PURCHASE OF THINGS IN LITIGATION. 297 
 
 action will Lo lield void (//). Still loss cau the law be 
 evaded by slighter variations in the form or manner of the 
 transaction : for instance, an agreement between solicitor 
 and client that the solicitor shall advance funds for carry- 
 ing on a suit to recover possession of an estate, and in the 
 event of success shall receive a sum above his regular costs 
 " according to the interest and benefit " acquired by the 
 possession of the estate, is as much void as a bargain for a 
 specific part of the property (o). So where a solicitor was 
 to have a percentage of the fund recovered in a suit, it was 
 held to be not the less champerty because he was not him- 
 self (and in fact could not be) the solicitor in the suit, but 
 employed another (p). 
 
 An agreement by a solicitor with a client simply to 
 charge nothing for costs in a particular action is not 
 champerty {q). 
 
 (2. This rule came to be laid down in a somewhat curious (|3) Sollci- 
 way. In Wood v. Doicncs {>•) Lord Eldon set aside a pur- can"ot '^^'^ 
 chase by a solicitor from his client of the res Utiaiosa,, purchase 
 
 . J ) subiect- 
 
 partly on the ground of maintenance. But it is to be matter of 
 noted as to this ground that the ao-reement for sale was 1^'® ^,".^ 
 
 . ° . ironi his 
 
 in substitution for a previous agreement which clearly client. 
 amounted, and which the parties had discovered to amount, anoma^ ^ 
 to maintenance : and the Court appears to have inferred ^°^^- 
 as a fact that it w\as all one illegal transaction, and the sale 
 merely colourable (s). The other ground, which alone 
 would have been enough, was the presumption of undue 
 influence in such a transaction, arising from the fiduciary 
 
 [u) Sprye t. Torter, 7 E. & B. 58, C. P. 425. 
 
 26 L. J. Q. B. 64. [r) 18 Ves. 120. 
 
 (o) Earle v. Hopivood, 9 C. B. N. S. {s) Cp. Spyye v. Porter, supra. In 
 
 566, 30 L. J. C. P. 217. Wood v. Loicnes the parties do not 
 
 [p) Sirauge v. lironian, 15 Sim. seem to have even kejjt the original 
 
 346, 2 C. P. Cooper (temp. Gotten- and real agreement off the face of 
 
 ham) 1. The agreement was made thetrausactioninitsiiltimateshaiJe. 
 
 with a solicitor in Ireland, notbeing Seep. 123. It is to be regretted 
 
 a solicitor of the English Court of that the reporter did not preserve 
 
 Chancery, and the fimd to be re- the full statement of the facts (p. 
 
 covered was in England. 122) with which the judgment 
 
 {q) Jennings v. Johnson, L. R. 8 opened.
 
 298 UNLAWFUL AGREEMENTS. 
 
 relation of solicitor and client (of which we shall speak in 
 a subsequent chapter). The Court of Uueen's Bench, 
 however, in Sini2)S0Ji v. Lamb (f) followed Wood v. 
 Dotoics, as having laid down as a matter of the " policy 
 of the law," the positive rule above stated. In Anderson 
 V. Radcliffe {u), unanimous judgments in both the Q, B. and 
 the Ex. Ch. added the qualification that a conveyance by 
 way of security for past expenses is nevertheless good. 
 The Court of Exchequer Chamber showed a decided 
 opinion that Simpson v. Lamb had gone too far, but with- 
 out positively disapproving it. In Knight v. Bon-i/cr, 
 again, Turner, L. J. said " I am aware of no rule of law 
 which prevents an attorney from purchasing what anybody 
 else is at liberty to purchase, subject, of com'se, if he pur- 
 chases from a client, to the consequences of that rela- 
 tion" {x). But the case before the Com-t was not the 
 piu-chase by a solicitor from his client of the subject- 
 matter of a suit in which he teas so/icifor ; Simpso)i v. 
 Lamb, therefore, was only treated as distinguishable (.r) . 
 The case must at present be considered a subsisting 
 authority, but anomalous and not likely to be at all 
 extended («/). 
 
 (7) Pur- 7. As to the purchase of things in litigation in general, 
 
 chaHo of ^] authorities cannot all be reconciled in detail. But the 
 
 siiDject- 
 
 matterof distinction which runs through them all is to this effect. 
 not~hi^°^ The question in every case is w^hcther the real object be 
 itself jiii- to acquire an interest in property for the purchaser, or 
 merely to speculate in litigation on the account either of 
 the vendor and pm-chaser jointly or of the pm'chaser alone. 
 It is not unlawful to purchase an interest in property 
 though adverse claims exist which make litigation neces- 
 sary for realizing that interest : but it is unlawful to pur- 
 
 (i) 7 E. & B. 81. (//) Cp however the Austrian Civil 
 
 (m) E. B. & E. 80G, 28 L. J. Q. B. Code, which makes such agreements 
 
 32, 29 ib. 128. void (§ 879). 
 {.v) 2 Dc G. & J. at p. 415.
 
 PURCHASE OF THINGS IN LITIGATION. 299 
 
 cliasG an interest merely for the purpose of litigation. In But is un- 
 other words, tlie sale of an interest to which a right to sue t),^i"ai 
 is incident is good (~) ; but the sale of a mere right to sue intention 
 
 is bad (r/). acquire a 
 
 A man who has conveyed property by a deed voidable V^^^^ "o^* 
 
 • • • • ^^ su,c» 
 
 m equity retains an interest not only transmissible by 
 descent or devise, but disposable infer vivos, without such 
 disposition being champerty. But " the right to complain 
 of a fraud is not a marketable commodity," and an agree- 
 ment whose real object is the acquisition of such a right 
 cannot be enforced {b). In like manner, a creditor of a 
 company may well assign his debt, but he cannot sell as 
 incident to it the right to proceed with a winding-up 
 petition (r). 
 
 The payment of the price being made contingent on the 
 recovery of the property is probably under any circum- 
 stances a sufficient, but is by no means a necessary, condi- 
 tion of the Court being satisfied that the real object is to 
 trafiic in litigation. If the purchase is made while a suit 
 is actually pending, the circumstance of the purchaser in- 
 demnifying the vendor against costs may be material, but 
 is not alone enough to show that the bargain is in truth 
 for maintenance (rf). 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 agreement to enable the 
 
 {z) Dickinsonx . Burrcll, 1 Eq. 337, (f) raris Skating Eink Co. (C. A.), 
 
 342. 5 Ch. D. 959. 
 
 {a) lb.; Frosscr v. Edmonds, 1 Y. (d) Harrington \. Long, 2M. &K. 
 
 & C. Ex. 481 (the main part of Lord o90, as corrected by En'ight v. 
 
 Abiuger's judgment is extracted in Bowijer, supra, and see Hunter v. 
 
 a note to Story, Eq. Jur. ^ 1040A). Banid, 4 Ha. at p. 430. But the 
 
 [b) I'rosser v. Edmonds; Be Hogli- true ground of the case seems the 
 toriN. Money, 2 Ch. 164, 1G9. Cp. same as \n.Trosser\. Edmo>ids and 
 Hill V. Boyle, 4 Eq. 260, and qu. Be Hoghton v. Money, namely, that 
 whether the right to cut down an the real object was to give the pur- 
 absolute conveyance to a mortgage chaser a locus standi to set aside a 
 bo saleable : heear v. Lawson, 15 deed for fraud. 
 Ch. D. 426.
 
 300 
 
 UNLAWFUL AGREEMENTS. 
 
 Piu'chaf5e 
 of shares 
 in com- 
 pany with 
 intention 
 to sue 
 company 
 or dii'ec- 
 tors 
 
 at one' sown 
 risk not 
 main- 
 tenance. 
 
 Stat. 32 
 H. 8, 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. 
 
 Penalty 
 and 
 
 hond fide purchaser of an estate to recover for rent due or 
 injuries done to it previously to the purchase (e). 
 
 It has been decided in several modern cases that the 
 pui'chase of shares in a company for the purpose of in- 
 stituting a suit at one's own risk to restrain the governing 
 body of the company from acts unwarranted by its con- 
 stitution cannot be impeached as savouring of mainte- 
 nance (/). It is worth while to note that it was recognized 
 as long ago as 21 Ed. 3, that a purchase of property pend- 
 ing 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 consideration and not to maintain 
 the plea, this is no champerty " {g). 
 
 The statute 32 H. 8, c. 9, " Against maintenance and 
 embracery, buying of titles, &c.," deserves special mention. 
 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, it enacts that : 
 
 ' ' No person or persons, of what estate degree or condition so ever 
 he or they be, shall from henceforth bargain buy or sell, or by any 
 ways or 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 heredita- 
 ments, but if such person or persons which shall so bargain sell give 
 grant covenant or promise the same their antecessors 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 whole year next before the said bargain 
 covenant grant or promise made." 
 
 The penalty is forfeiture of the whole value of the lands 
 (s. 2), saving the right of persons in lawful possession to 
 buy in adverse claims (s. 4). There is no express saving 
 of grants or leases by persons in actual possession who have 
 
 {e) Per Cur. (Ex. Ch.), WiUiams 
 V. rrothcvoc, f) Biug. 30y, 314. 
 
 (/) SocJJioxdin V. Mctrop. liij. Co., 
 3 Ch. at p. 353. 
 
 {,/) 2 Ro. Ab. 113 B.; Y.B. 2lE. 
 3, 10, pi. 33 [cited as 52 in Rolle] ; 
 but iu 50 Ass. 323, pi. 3, the general 
 opinion of the Serjeants is contra, 
 Cp. 4 Kent, Comm. 449.
 
 MAINTENANCE. 301 
 
 been so for less than a year : but cither the condition as to 
 
 time applies only to receipt of rents or profits without 
 
 actual possession, or at all events the intention not to touch 
 
 the acts of owners in possession is obvious (/) . 
 
 This, like the other statutes against maintenance and Dealings 
 
 champerty, is said to be in affirmance of the common ^^jthin the 
 
 law (/). It " is formed on the view that possession should statute. 
 
 remain undisturbed. Dealings with property by a person ment to 
 
 out of possession tend to distm'b the actual possession to ^'^^?\^^., 
 
 _ •■■ _ ... '^'^'l divide 
 
 the injury of the public at large" (A). It is immaterial proijcrty. 
 
 whether the vendor out of possession has in truth a good 
 title or not (/). 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 at common law ; therefore 
 where co-plaintiffs had in fact conflicting interests, and it 
 was sought to avoid the resulting difficulty as to the frame 
 of the suit by stating an agreement to divide the property 
 in suit between them, this device (which now would in any 
 case be disallowed on more general grounds) (/) was unavail- 
 ing ; for such an agreement, had it really existed, would 
 have been unlawful, and would have subjected the parties 
 to the penalties of the statute {in) . 
 
 Where after the death of a lessee a stranger had entered, Sale of 
 and remained many years in possession, a sale of the term *^7"^. V 
 
 •^ '^ ■•■ ' _ adnnuis- 
 
 by the administrator of the lessee was held void as contrary trator out 
 to the statute, although in terms it only forbids sales of session, 
 pretended rights, &c., under penalties, without expressly 
 making them void {)i). But the sale of a contingent right 
 
 (i) 'By 'Monnta,gue,C. J . Partridffe {k) Per Lord Eedesdale, Cholmon- 
 V. Strange, Plowd. 88, cited in I)oe dclcy v. Clinton, 4 Bligh, at p. 75. 
 d. Williams v. Evans, 1 C. B. 717 ; (/) Sec Cooke v. Cooke, 4 D. J. S. 
 ill. 89. See further /ew/tiHS V. Jones, 704 ; Tnjse v. Fnjse, 15 Eq. 86. 
 C. A., 9 Q. B. D. 128, as to the (/«) Cholmondeley v. Clinton, 4 
 meaning of " pretensed rights" Bligh, 1, 43, 82, per Lord Eldon and 
 and the limited application of the Lord Redesdale. 
 statuteat the present time. Aright {)>) Ihe d. Williams v. Evans, 1 
 or title which is grantable under 8 & C. B. 717, 14 L. J. C. P. 237. Cp. 
 9 Vict. c. 106, is not now "pre- above as to the construction of pro- 
 tensed" merely because the grantor hibitory statutes in general, p. 253. 
 has never been in possession .
 
 302 
 
 UNLAWFUL AGREEMENTS. 
 
 Secus sale or a mere expectancy, not being in the nature of a claim 
 ntSus adverse to any existing possession, is not forbidden. The 
 expec- sale of a man's possible interest as the devisee of a living 
 ^^^^' owner, on the terms that he shall retm-n 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 (o) 
 
 Proceed- Proceedings in lunacy seem not to be within the general 
 Immcy not '^^^^^ ^^ ^^ champerty, as they are not analogous to ordinary 
 within the litigation, and their 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 ulti- 
 mate division of the property were void " ( j;). 
 
 against 
 cham- 
 perty. 
 
 Mainte- 
 nance in 
 o'cneral. 
 
 As to maintenance in general, maintenance in the strict 
 and proper sense is understood to mean only the mainte- 
 nance of an existing suit, not procming the commencement 
 of a new one. But the distinction is in practice immaterial 
 even in the criminal law {q). It is of more importance that 
 a transaction cannot be void for champerty or maintenance 
 unless it be " something against good policy and justice, 
 
 (o) Cook V. Field, lo Q. B. 460, 
 19 L. J. Q. B. 441. By the civil 
 law, however, such contracts are 
 regarded as contra honos mores. 
 " Huiusmodi pactiones odiosae vi- 
 dentur et plenae tristissimi et peri- 
 culosi eventus," we read in a 
 rescript of Justiiuan on an agree- 
 ment between expectant co-heirs 
 as to the disposal of the inheritance. 
 The rcsciipt goes on, quite in the 
 spirit of our own statute, to forbid 
 iu general terms all dealings "in 
 alieuis rebus contra domini volun- 
 tatoni" (C. 2. 3. de paclis, 30). By 
 th(! French Civil Code, art. ICOO 
 (followed l)y the Italian Code, art. 
 
 1460). "On ne peut vendre la 
 succession d'lme personne vivante, 
 mcmc de son conscntement :'''' cp. 791, 
 1130. The Austrian Code (§ 879) 
 also expressly forbids the alienation 
 of an expected inheritance or legacy. 
 In Roman law the rule that the in- 
 heritance of a living person could 
 not be sold is put only on the tech- 
 nical ground ' ' quia in rerum natura 
 non sit quod venierit" (D. 18. 4. de 
 hered. vel actione vendita, 1, and 
 see cod. tit. 7-11). 
 
 {p) Fersse v. Fcrsse, 7 CI. & F. 
 279, 316, per Lord Cottenham. 
 
 (q) See JFood v. Foicnes, 18 Ves. 
 at p. 125.
 
 MAINTENANCE. 303 
 
 something tending to promote unnecessary litigation, 
 sometliiug that in a legal sense is immoral, and to the 
 constitution of which a bad motive in the same sense is 
 necessary " (s). 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 («). Nor is it maintenance for 
 several persons to agree to defend a suit in the result of 
 which they have, or reasonably believe thoy have, a com- 
 mon interest [f). But a bargain to have a share of property 
 to be 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 col- 
 lateral interest in the result of the suit(;/). "Where a 
 person sues for a statutory penalty as a common informer, 
 it is maintenance to indemnify him against costs (./■). 
 
 Lineal kinship in the first degree or aj)parent heirship. Certain 
 and to a certain extent, it seems, any degree of kindred or ^^jm^gt^fy 
 affinity, or the relation of master and servant, may justify mainte- 
 acts which as between strangers would be maintenance : not cham- 
 but blood relationship will not justify champerty {//). perty. 
 
 c. As to matters touching legal (and possibly moral) c Public 
 duties of individuals in the performance of which the to le^al^ 
 public have an interest. duties of 
 
 indivi- 
 
 Certain kinds of agreements are or have been considered 
 
 («) Fischer v. Kamala Kaicher, 8 be that in Bi'itish India the Courts 
 
 Moo. Ind. App. 170, 187. This is ai-e fi-ee to adopt the doctrine of 
 
 not necessarily applicable in Eng- champerty, so far as they think it 
 
 land, being said with reference to reasonable, as part of the general 
 
 the law of British India, where the judicial scheme of public policj'. 
 English laws against maintenance {t) Findonv. Parker, 11 M. & AV. 
 
 and champerty are not specifically 675. Cp. 2 Ho. Ab. 115 G-. 
 in force : see Ram Coomar Coondoo («) Hutlcij v. llutley, L. R. 8 Q. 
 
 V. Chunder Canto MooJcerjec, 2 App. B. 112. 
 
 Ca. 18G, 207-9. But it faiiiy re- {x) Bradlaughx. Newdegate, 11 Q. 
 
 presents the principles on which B. D. 1. 
 
 English judges have acted in the (//) llutley v. Sutley, L. E,. 8 Q. 
 
 modern cases. The result of the B. 112. See 2 Eo. Ab. 115-116. 
 Indian case last mentioned seemiS to 
 
 duals.
 
 304 
 
 UNLAWFUL AGREEMENTS. 
 
 unlawful and void as providing for or tending to the omis- 
 sion of duties wliich are indeed duties towards individuals, 
 but sucli that their performance is of public importance. 
 Agi-ee- To this head must be referred the rule of law that a father 
 to custody cannot by contract deprive himself of the right to the 
 or educa- custody of his children (;:) or of his discretion as to their 
 cMldren. education. He "cannot bind himself conclusively by con- 
 tract to exercise in all events in a particular way rights 
 which the law gives him for the benefit of his children and 
 not for his own." And an agreement to that effect — rsuch 
 as an agreement made before marriage between a husband 
 and wife of different religions that boys shall be educated 
 in the religion of the father, and girls in the religion of the 
 mother — cannot be enforced as a contract (a). 
 ' After the father's death the Court has a certain discretion. 
 
 The children are indeed to be brought up in his religion, 
 unless it is distinctly shown by special circumstances that 
 it would be contrary to the infant's benefit ih). 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 material (c). The father's conduct in giving up the 
 maintenance, control, 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 {d) . 
 
 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 
 
 In separa- 
 tion deeds. 
 
 {£) ReAndrncs, L. R. 8 Q. B. 153, 
 and authorities there collected. 
 
 (<7) Andrexvs v. Salt, 8 Ch. G22, 
 636. 
 
 (i) Ilawlisivorth v. Eaivksicorth , 6 
 
 Ch. 539. 
 
 (c) Andrews v. Salt, 8 Ch. at p. 
 637. 
 
 id) Lyons v. BlenJiin, Jac. 245, 
 255, 2G3.
 
 CUSTODY OF f'HILDREN. 305 
 
 been refused {(') . In one case, however, such a contract can 
 be enforced ; namelj, where there has been such misconduct 
 on the fatlier'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 
 cliildren cannot be made a mere matter of bargain, not that 
 the husband can in no circumstances bind himself not to 
 set up his paternal rights (/). 
 
 The law on this point is now modified by the Act 36 3G Vict. c. 
 Vict. c. 12, which enacts (s. 2) that 
 
 "No agreement contained in any separation deed between the father 
 and nnother of an infant or infants sliall be held to be invalid by reason 
 only of its providing that the father of such infant or infants shall give 
 up the custody or control thereof to the mother : Provided always, that 
 no Coui-t shall enforce any such agreement if the Coiu-t shall be of 
 opinion that it will not be for the benefit of the infant or infants to give 
 eifect thereto." 
 
 This Act does not enable a father to delegate his general 
 rights and powers as regards his infant chikben {g) . 
 
 The objections formerly entertained (as we have seen) On this 
 first against separation deeds in general, and afterwards ^^^i^^ ^-^^ 
 down to quite recent times acrainst giving full effect to doctrines 
 
 ^ T 1 • 1 , as to sepa- 
 
 them in Courts of equity, wore based m part upon the ration 
 same sort of grounds : and so are the reasons for which ^g^*^^^{^. 
 agreements providing for a futm'e separation have always 
 been held invalid. For not the parties alone, but society 
 at large is interested in the observance of the duties inci- 
 dent to the marriage contract, as a matter of public 
 example and general welfare. 
 
 Considerations of the same kind enter into the policy of and as to 
 the law with respect to the sale of offices, also spoken of offices. 
 
 [e) Vamittart v. Vansittart, 2 De (/) Swift v. Swift, iJy.Y. J. 710, 
 
 G. & J. 249, 259. As to the validity 714 ; and see the remarks in 6 Ch, 
 
 of partial restrictions of the bus- 705, 13 Eq. 520. 
 
 band's right, Hamilton v. Hector, 6 (</) Re Besant (C. A.), 11 Ch. D. 
 
 Ch. 701, 13Eq. 511. 508,518. 
 
 P. X
 
 306 
 
 UNLAWFUL AGREEMENTS. 
 
 Insurance 
 of sea- 
 men's 
 "waares. 
 
 above. Such transactions clearly involve the abandonment 
 or evasion of distinct legal duties. 
 
 On similar grounds, again, seamen's wages, or any 
 remuneration in lieu of such wages, cannot be the subject 
 of insurance at common law (h). 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 "(i). This reason, however, is 
 removed in England by the Merchant Shipping Act, 1854 
 (17 & 18 Yict. c. 104, s. 183), which makes the right to 
 wages independent of freight being earned. The question 
 has not yet presented itself for decision whether the rule 
 founded upon it is to be considered as removed also. 
 
 Agree- 
 ments 
 against 
 social 
 duty. 
 
 It has never been decided, but it seems highly probable, 
 that agreements are void which directly tend to discourage 
 the performance of social and moral duties. Such would 
 be a covenant by a landowner to let all his cultivable land 
 lie waste, or a clause in a charter-party prohibiting devia- 
 tion even to save life (A-). 
 
 D. Public D. As to agreements unduly limiting the freedom of 
 to' freedom individual action. 
 
 of indi- There are certain points in which it is considered that 
 
 action. the choice and free action of individuals should be as 
 unfettered as possible. As a rule a man may bind him- 
 self to do or omit, or procure another to do or omit, 
 anything which the law does not forbid to be done or 
 left undone. The matters as to which this power is specially 
 limited on grounds of general convenience are: — 
 (a) Marriage. 
 
 (/3) Testamentary dispositions. 
 (7) Trade. 
 
 {h) Webster v. JDe Tastet, 7 T. B. 
 157. 
 (i) Kent, Coram. 3. 269. 
 
 {k) Per Cockbum, C. J. 5 C. P. 
 D. at p. 305.
 
 RESTRAINT OF MARRIAGK. 307 
 
 (a) Marriage is a thing in itself encouraged by the law ; («) Mar- 
 the marriage contract is moreover that which of all others " Mar- 
 should be the result of full and free consent. Certain "aj^o ^^ 
 agreements are therefore treated as against public policy aj,Tee° 
 either for tending to impede this freedom of consent and ^^1^^ 
 introduce unfit and extraneous motives into the contracting 
 of particular marriages, or for tending to liinder marriage 
 in general. The first class are the agreements to procure 
 or negotiate marriages for reward, which are known as 
 marriage brokage contracts. All such agreements are 
 void (/), and services rendered without request in procur- 
 ing or forwarding a marriage (at all events a clandestine 
 or improper one) are not merely no con'sideration, but an 
 illegal consideration, for a subsequent promise of reward, 
 which promise, even if imcler seal, is therefore void (ni). 
 The law is said to be comparatively modern on this head : 
 but it has already ceased to be of any practical im- 
 portance {)i). 
 
 "We pass on to the second class, agreements " in restraint Agree- 
 of marriage " as they are called. An agreement by a general 
 bachelor or spinster not to marry at all is clearly void (o) ; restraint 
 so, it seems, would be a bare agreement not to marry riage void, 
 within a particular time {j)). In Lou-e v. Peers [q) a -cove- 
 nant not to marry any person other than the covenantee 
 was held void. A promise to marry nobody but A. B. 
 cannot be construed as a promise to marry A. B. and is 
 thus in mere restraint of marriage : and even if it could, it 
 was thought doubtful whether an unilateral covenant to 
 
 [l) E.g. Cole v. Gibson, 1 Ves. Sr. &c. 6. The Aixstrian Code agrees 
 
 503. See Story, Eq. Jm-. §§ 2G0 sqq. with our law (^ 879). 
 
 (j«) WiUiamsonY. Gihon, 2 Sch. & (o) Lowe v. Peers, Wilmot, 371 : 
 
 L. 357. where it is said that it is a contract 
 
 (h) In the Roman law these con- to omit a moral duty, and "tends 
 
 tracts were good apart from special to depopulation, the greatest of all 
 
 legislation: they were limited as to political sins." 
 
 amount (though with an expression [p) Hartley v. Rice, 10 East, 22 (a 
 
 of general disapproval) by a con- wager). 
 
 stitution preserved only in a Greek [q) 4 Burr. 2225,inEx.Ch.Wilm. 
 
 epitome: C. 5. 1. de sponsalibus, 364. 
 
 x2
 
 308 UNLAWFUL AGREEMENTS. 
 
 marry A. B. would "be valid, A. B. not being bound by 
 any reciprocal promise (r) . Lord Mansfield threw out the 
 opinion (not without followers in our own time) (s), that 
 even the ordinary contract by mutual promises of marriage 
 is not free from mischievous consequences. The decision 
 was affirmed in the Exchequer Chamber, where it was 
 observed that : — 
 
 " Both ladies and gentlemen . . . frequently are induced to pro- 
 mise not to maiTy any other persons but the objects of their present 
 passion ; and if the law should not rescind such engagements, they would 
 become prisoners for life at the will of most inexorable jailors — dis- 
 appointed lovers " {t). 
 
 Covenant A covenant not to revoke a will is not void as being a 
 voke w^U covenant not to marry, though the party's subsequent mar- 
 riage would revoke the will by operation of law. As a 
 covenant not to revoke the will in any other way it is 
 good ; but the party's marriage gives no ground of action 
 as for a breach (ii). 
 As to con- We do not know of any express decision, but it may be 
 restraint of gathered from the analogy of the cases on conditions that 
 marriage. ^ contract not to marry some particular person, or any per- 
 son of some particular class, would be good unless the real 
 intention appeared to be to restrain marriage altogether ; 
 and that a contract by a widow or widower not to marry 
 at all would probably be good (.r). The learning of con- 
 ditions in restraint of marriage (which always or almost 
 always occur in wills) does not properly fall within our 
 subject. Nevertheless it may be worth while to give a 
 summary statement of what is believed to be the result 
 of the authorities. 
 
 (r) But of this qu. : for a refusal 788, 29 L. J. Q. B. at p. 49. 
 
 by A. B. to marry on request within (C) Wilm. 371. 
 
 a reasonable time would surely (u) lloh bison v. Ommanney, 21 Ch. 
 
 discharge the promisor on general D. 780, in C. A. 23 Ch. D. 285. 
 
 principles. (a-) See Scott v. Tyler, in 2 Wh. & 
 
 (*) 4 Burr. 2230. ; per Martin, B. T. L. 0. and notes. 
 Hall V. Wright, E. B. & E. at p.
 
 RESTRAINT OF MARRIAGE. 309 
 
 Conditions in restraint of marriage : — 
 
 li precedent, are with trifling exceptions (if any) valid as to both real 
 and personal estate. 
 
 If subsequent, — 
 
 General restraint. Good, it seems, as to real estate (see 1 Atk. 380, n.) ; 
 at any rate if the disposition, in whatever form, can be taken to show an 
 intention not of discouraging marriage but of making a provision until 
 marriage : Jones v. Jones, 1 Q. B. D. 279. 
 
 Bad as to personal estate {y) or mixed fund (or a fund arising only from 
 sale of realty, scnihle) : Bellairs v. Bellairs, 18 Eq. 510 — and this whether 
 there is a gift over or not. 
 
 Particular restraint. Good as to real estate (1 Eo. Ab. 418 X., pi. 6) ; 
 and good as to personal estate if there is a gift over, otherwise not. 
 
 These rules do not apply to conditions restraining the second marriage 
 either of a woman : Neivton v. Marsden, 2 J. & H. 3.56 ; or of a man : 
 Allen V. Jackson (C. A.) 1 Ch. D. 399. 
 
 Nor to conditional limitations (as a gift luitil maniage) in a disposition 
 of either real or personal estate. 
 
 This result is neither simple nor rational. But the rule 
 against conditions in restraint of marriage, at fii'st adopted 
 from the ecclesiastical Courts on grounds of public policy, 
 has been so modified in its application by Courts of equity 
 that it can now be treated only as an arbitrary rule of con- 
 struction {z) . By the law of France promises of marriage 
 are invalid, " comme portant atteinte a la liberte illimitee 
 qui doit exister dans les manages " : nevertheless if actual 
 special damage (prejudice) can be shown to have resulted 
 from non-fulfilment of the promise, the amount of it can 
 be recovered, it would seem as due ex delicto rather than 
 ex contractu (a). 
 
 /3. An agreement to use influence with a testator in (iS) Agree- 
 favour of a particular person or object is void (b). On the ™^^t to 
 other hand, it is well established that a man may validly testator. 
 bind himself or his estate by a contract to make any par- 
 
 («/) For a general account of the («) See notes in Sii'ey & Gilbert 
 
 doctrine as to personalty, seeMorlc!/ on Code Civ. art. 1142, Nos. 11-19. 
 V. Eennoldson, 2 Ha. 670. [b] Bebenham v. Ox, 1 Ves. Sr. 
 
 {z) See per Jessel, M. R., Bel- 276. 
 lairs V. Bellairs, 18 Eq. 510, 516.
 
 310 
 
 UNLAWFUL AGREEMENTS. 
 
 if in itself lawful) by his own will {(■). 
 were not recognized by Roman law (d), 
 
 ticular disposition 
 
 Such contracts 
 
 and even a gift inter vivos of all the donor's after-acquired 
 
 property would have been bad as an evasion of the rule : 
 
 but in the modern civil law of Grermany, as with us, 
 
 a contract of this sort (Erbvertrag) is good (e). 
 
 (7) lie- 
 straint of 
 trade. 
 
 General 
 principle. 
 
 Hilton V. 
 Eckersley, 
 
 y. Agreements in restraint of trade. It would be im- 
 possible to give an adequate account of this subject on 
 the plan and within the limits of this book ; and it is 
 satisfactory to feel that any attempt to do so is rendered 
 needless by the place already given to it in a work of no 
 small authority {/). We shall here only give the prin- 
 ciples and the short results of the authorities, with some 
 mention of recent decisions. 
 
 The general rule is tkat a man ought not to be allowed 
 to restrain himself by contract from exercising any lawful 
 craft or business at his own discretion and in his own way. 
 Partial restrictions, however, are admitted to the extent 
 and for the reasons to be presently stated. Thus an agree- 
 ment between several master manufacturers to regulate 
 their wages and hours of work, the suspending of work 
 partially or altogether, and the discipline and management 
 of their establishments, by the decision of a majority of 
 their number, is in general restraint of trade as depriving 
 each one of them of the control of his own business, and 
 is therefore not enforceable (</). It makes no difference 
 
 (<?) De JBcil V. Thomson, 3 Beav. 
 469, s. c. nom. Hammersley v. Baron 
 de Btil, 12 CI. & F. 45 ; Brookmmi's 
 tr. Ch. 182. Whether a covenant 
 to exercise a power of testamentary 
 appointment in a particular way 
 be valid, qumre : Thaclcer v. Keij, 8 
 Eq. 408 ; Bidtcel v. Blnmmer, 6 Ch. 
 160; per Brett, L. J., Talmcr v. 
 Locke, 15 Ch. D. at p. 300. 
 
 [d) Stipulatio hoc mode concepta: 
 Si horedom me non fecoris, tantum 
 dare spondcs? imitilis est, quia con- 
 tra bouos mores est haec stipulatio. 
 
 D. 45. 1. dev. o. 61. 
 
 {e) Savigny, Syst. 4. 142-5. 
 
 (/) See notes to Mitchel v. Hey- 
 nohh in 1 Sm. L. C. 
 
 {g) Hilton v. Eckersley, 6 E. & B. 
 47, in Exch. Ch. ib. 66, 24 L. J. Q. 
 B. 353, 25 ib. 199. The dicta there 
 leave it doubtful if the agreement 
 would be a criminal offence at 
 common law. By the Trade Union 
 Act, 1871, 34 & 35 Vict. c. 31, 
 ss. 2-5, agreements of this kind 
 between workmen are protected 
 against the criminal law, though not
 
 RESTRAINT OF TRADE. 311 
 
 that the ol)jcct of the combination is alleged to Lo 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 Chamber thus expressed the 
 general principle in the course of their judgment: — 
 
 " Prima facie it is the privilege of a trader in a free country, iu all 
 matters not contrary to law, to regulate his own mode of carry uig it [his 
 trade] on according to his own discretion and choice. If the law has in 
 any matter \_qH. manner ?] regulated or restrained his mode of doing this, 
 the law must be obeyed. But no power short of the general law ought to 
 restrain his free discretion ' ' {h) . 
 
 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 provisions reasonably 
 necessary for this purpose are not invalid because they 
 may operate in partial restraint of the parties' freedom to 
 exercise their trade. But a provision that if other persons, 
 strangers to the contract, do not employ in particular cases 
 that one of the contracting parties to whom as between 
 themselves the business is assigned by the agreement, 
 then none of the others will accept the employment, is 
 bad(0. 
 
 The reasons against allowing agreements in unlimited Keasons 
 restraint of trade are set forth at large in the leading case aiiowin"- 
 of Mitchel v. Reynolds {k), and at a more recent date (1837) general 
 were put somewhat more concisely by the Supreme Court 
 of Massachusetts, who held a bond void which was con- 
 ditioned that the obligor should never carry on or be 
 concerned in iron founding : — 
 
 "1. Such contracts injiu-e the parties making them, because they 
 
 enforceable. It would be difficult («') ColUiis v. Zockc {J. C), i A-pi^. 
 
 to maintain that the like agree- Ca. 674, G88 ; Jones v. No^-th, 19 
 
 ments between masters, though not Eq. •426, a case not free from diffi- 
 
 named, are not within the meaning culties on other grounds, 
 
 of the Act. {k) 1 P. Wras. 181, and in 1 Sm. 
 
 {h) 6 E. & B. at pp. 74-5. L. C.
 
 312 
 
 UNLAWFUL AGREEMENTS. 
 
 For allow- 
 ing partial 
 
 restraint. 
 
 diminish 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 futui-e acquisitions. And they expose 
 such persons to imposition and oppression. 
 
 2. They tend to deprive the public of the services of men in the em- 
 ployments and capacities in which they may be most useful to the com- 
 munity as well as themselves. 
 
 3. They discourage industry and enterprise, and diminish the products 
 of ingenuity and skill. 
 
 4. They j)revent competition and enhance prices. 
 
 5. They expose the public to all the evils of monopoly " {I). 
 
 The second and fifth of these reasons appear to be the 
 really efficient ones both in themselves and as a matter of 
 history. 
 
 The admission of limited restraints is commonly spoken 
 of as an exception to the general policy of the law. But 
 it seems better to regard it rather as another 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 
 able 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. Ee- 
 striction 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 rea- 
 sons {m). 
 
 Questions 
 as to 
 
 historical 
 origin of 
 the doc- 
 trine. 
 
 It has been suggested by a learned American writer 
 that in its origin the doctrine was founded on a much 
 more obvious and immediate inconvenience than can be 
 now assigned as the consequence of allowing these con- 
 tracts. It dates from the time when a man could not 
 lawfully exercise any trade to which he had not been duly 
 apprenticed and admitted : so that if he covenanted not 
 to exercise his own trade, he practically covenanted to 
 
 64. 
 
 {I) Alycr v. Thacker, 19 Pick. 51, 
 
 [m] James, V.-C. Leather Cloth 
 Co. v. Lorsont, 9 Eq. 345, 353.
 
 RESTRAINT OF TRADE. 313 
 
 exercise none — in other words not to earn his living at 
 all (it). One might even go a step farther: for by the 
 statute 5 Eliz. c. 4 (now wholly repealed by the Conspiracy 
 and Protection of Property Act, 1875, 38 & 39 Vict. c. 86), 
 which consolidated earlier Acts of the same kind, not only 
 the common labourer, but the artificer in any one of 
 various trades, was compellable to serve in his trade if 
 unmarried or under the age of 30 years, and not a forty- 
 shilling freeholder or copyholder or "worth of his own 
 goods the clear value of ten pounds." An agreement by 
 a person within the statute not to exercise his own trade 
 might therefore be deemed, at any rate if unlimited, to 
 amount to an agreement to omit a legal duty — which of 
 course is j)Ositively illegal. But it must not be forgotten Absolute 
 that absolute freedom of trade is positively asserted as the t^^de ™ " 
 normal state of things always assumed and upheld by the asserted 
 common law ; wherefore it may be doubted if any artificial oM coin-^^ 
 explanation is wanted. It was resolved in the Ipsicich ^onlaw. 
 Tailors' case (o) that at the common law no man could be 
 prohibited from working in any lawful trade : and it was 
 said that 
 
 " The statute of 5 Eliz. c. 4, which prohibits every person from usiii<j 
 or exercising any craft mystery or occupation, unless he has been an 
 apprentice by the space of seven years, was not enacted only to the intent 
 that workmen should be skilful, but also that youth phoidd not be 
 nourished in idleness, but brought up and educated in lawful sciences 
 and trades ; and thereby it appears, that without an act of parliament {p) 
 none can be prohibited from working in any lawful trade." 
 
 And certain ordinances, by which the tailors of Ipswich 
 forbade any one to exercise the trade of a tailor there 
 until he had presented himself to the master and wardens 
 and satisfied them of his qualification, were held void, 
 inasmuch as 
 
 " Ordinances for the good order and government of men of trades and 
 mysteries are good, but not to restrain any one in his lawful mystery" {q). 
 
 (h) Parsons on Contracts, 2. 2o5. nopolies, ib. 87b. 
 
 (o) 11 Co. Rep. 53ff, bib. (g) Cp. the case of the Cloth- 
 
 (p) So again in the case of Jfo- workers' Co. mentioned ib. S6b.
 
 314 
 
 UNLAWFUL AGREEMENTS. 
 
 Partial It seeiiis Certain that x>(itiial restraints were recognized 
 
 heldXod ^^ valid at an early time. This appears from the Dyer's 
 in 2 H. 5. case in 2 H. 5 (Pasch. fo. 5, pi. 26), which has been some- 
 times misunderstood. The action was debt on a bond 
 conditioned that the defendant should not use his craft of 
 a dyer in the same town with the plaintiff for half a year: 
 a contract which would now be clearly good if made upon 
 valuable consideration. The defence was that the con- 
 dition had been performed. To this Hull, J. said : " To 
 my mind you might have demurred to him that the 
 obligation is void, because the condition is against the 
 common law ; and i)C)' Dieu (r) if the plaintiif were here 
 he should go to prison till he had made fine to the King." 
 But it does not appear that this dictum met with assent 
 at the time, and the parties proceeded to issue on the 
 question whether the condition had in fact been performed 
 or not. Hull's opinion, however, was approved by all the 
 Justices of the 0. P. in a blacksmith's case in 29 Eliz., of 
 which we have two reports (s). It does not appear in 
 either case what was the real occasion or consideration of 
 the contract. For aught the reports show it may well 
 have been, and not improbably was, the ordinary transac- 
 tion of a sale of goodwill or the like in both the dyer's 
 and the blacksmith's case. 
 
 Contra in 
 29 Eliz., 
 
 semble. 
 
 Contracts 
 in partial 
 restraint 
 in modern 
 times. 
 
 The contracts in partial restraint of trade which occur 
 in modern books are chiefly of the following kinds : 
 
 Agreements by the seller of a business not to compete 
 with the buyer. 
 
 Agreements by a partner or retiring partner not to 
 compete with the firm. 
 
 Agreements by a servant or agent not to compete with 
 his master or employer after his time of service or employ- 
 
 (/•) Tliis expletive is not unique in 
 the Year Books : nor is it, at that 
 date, altogether conclusive (as mo- 
 dem writers assume) to show that 
 
 the speaker had lost his temper. 
 
 (6) Moore, 242, pi. 379, 2 Leo. 
 210.
 
 RESTRAINT OF TRADE. 315 
 
 rnent is over. It by no means follows, however, that an 
 agreement in partial restraint of trade must fall within 
 one of these descriptions in order to be valid. 
 
 The rule established by the modem decisions is in effect 
 as follows : 
 
 An agreement not to carry on a particular trade or Rules as 
 business is a valid contract if it satisfies the following con- Yalidity 
 ditions : 
 
 (i) It must bo founded on a valuable consideration. 
 
 (ii) The restriction must not go, as to its extent in space 
 or otherwise, beyond what in the judgment of the Court is 
 reasonably necessary for the protection of the other party, 
 regard being had to the nature of the trade or business (/) . 
 
 It was at one time thought that the consideration must Considera- 
 be not only valuable but adequate : but it is now clearly 
 settled that this class of contracts forms no exception to the 
 general rule. Here as elsewhere the Court will not inquire 
 into the adequacy of the consideration. It is enough if a 
 legal consideration of any value, however small, be shown {/(). 
 On the other hand the necessity of showing some considera- 
 tion is not dispensed with, or the burden of proof shifted, 
 by the contract being under seal. 
 
 Until lately it was supposed to be an universal or at Limits of 
 least a general rule that the restraint must not be unlimited ^P^°®" 
 as to space. But the doctrine of recent decisions is, or at 
 least tends to be, that the real question is in every case 
 whether the restriction imposed is commensui'ate with the 
 benefit conferred. It has never been doubted that a partner 
 may bind himself absolutely not to compete with the firm 
 during the partnership : so may a servant in a trade bind 
 himself absolutely not to compete with the master during 
 
 {t) See per Selwyn, L. J., Catt v. But it is a point to be considered iu 
 
 Tourle, 4 Ch. 659 ; and Leather Cloth every case wliether the provisions as 
 
 Co. V. Zo?-so«<, 9 Eq. 349 ; Allsoppy. to time are such as to make the 
 
 Wheatcroft, 15 Eq. Gl (arg.) agreement one that is not to be 
 
 (m) Hitchcock v. Colcer, fi Ad. & E. performed within a year, so that it 
 
 438 (Ex. Ch.) which also settles that must satisfy the requirements of 
 
 a limit in time is not indispensable ; s. 4 of the JStatute of Frauds : see 
 
 Gravchj v. Barnard, 18 Eq. 518. Bavey \. Shannon, i'Eii. Ji. %\.
 
 316 
 
 UNLAWFUL AGREEMENTS. 
 
 his time of service {x). A contract not to divulge a trade 
 secret need not be qualified, 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 {>/). And it has 
 now been denied that the alleged rule as to limits of space 
 exists, as a positive rule of law, in any class of cases (z). 
 General It seems, therefore, that the only rule which can be laid 
 
 aWeness of down in general terms is that the restriction must in the 
 restriction particular casc be reasonable. Whether it be so is a ques- 
 lar cases, tion not of fact but of law. What amounts of restriction 
 have been held reasonable or not for the circumstances of 
 different kinds of business is best seen in the tabular state- 
 ment of cases (down to 1854) subjoined to the report of 
 Avery v. Langford [a) . It may be convenient to add the 
 later decisions in the same form. 
 
 Restriction held Reasonable. 
 
 Table of 
 recent 
 cases 
 (since 
 Avery v. 
 Lang- 
 ford). 
 
 Name and Date of 
 Case. 
 
 1855. Bendy t. 
 Henderson (b), 11 
 Ex. 194, 24 L. J. 
 Ex. 324. 
 
 1856. Jones v. 
 
 Zees, 1 H. & N. 
 
 189, 26 L. J. 
 Ex. 9. 
 
 Trade or Business. 
 
 Solicitor. 
 
 Manufactui'e or 
 sale of slabbing 
 and roving 
 frames not fitted 
 with plaintiff's 
 patent invention. 
 
 Extent of Ttestriction 
 in Time. 
 
 21 years from de- 
 termination of 
 defendant's em- 
 ployment as 
 managing clerk 
 to plaintiff. 
 
 Contiauance of 
 defendant' s 
 licence from 
 plaintiff to use 
 and sell the pa- 
 tented invention. 
 
 Extent of Restriction 
 in Space. 
 
 21 miles from 
 parish of Tormo- 
 ham, Torquay. 
 
 England? (not li- 
 mited in terms) . 
 
 (x) Wallls V. Day, 2 M. feW. 273. 
 
 {y) Leather Cloth Co. v. Lorsont, 9 
 Eq. 345, 353. 
 
 {z) ItousiUon V. liousillon, 14 Ch. 
 D. 351, 366 (Fry, J.), dissenting 
 from Alhopp v. lilieatcruft, 15 Eq. 
 59 (Wickens, V.-C.) 
 
 {u) Kay 607. WalUs v. Daii, 2 
 M. & W. 273, did not decide that 
 a covenant unlimited in space was 
 enforceable, but only that it did 
 not prevent an independent cove- 
 
 nant to pay money contained in 
 the same deed from being enforced. 
 It might have been held valid in 
 any case as being incidental to a 
 contract of service ; but this is 
 immaterial if the view taken by 
 Fry, J. in RousiUon v. liousillon 
 (last note) is accepted. 
 
 (i) Wliether an agreement not 
 to reside at a given place as well 
 as not to carry on business be good, 
 qtiwre.
 
 RESTRAINT OF TUADE. 
 
 Restriction held Reasonable. 
 
 317 
 
 Name and Date of 
 Case. 
 
 1807. Benwell v. 
 Inns, 2i Bcav. 
 307. 
 
 1859. Mumfordw. 
 Geihing, 7 C. B. 
 N. S. 305, 29 
 L. J. C. P. 105. 
 
 1863. Harms v 
 
 Farsons, 32 Beav. 
 
 328. 
 1863. ClarksonY. 
 
 Edge, 33 Beav. 
 
 227. 
 1869. Catt V. 
 
 Tourle, 4 Ch. 
 
 654. 
 
 1869. Leather Cloth 
 Co. V. Lor sent {c), 
 9 Eq. 345. 
 
 1874. Gravely v. 
 Barnard, 18 Eq. 
 518. 
 
 1875. Printing % 
 Numerical Re- 
 gistering Co. V. 
 Sampson, 19 Eq. 
 462. 
 
 1875. Maij V, 
 O'Neill, W. N. 
 179. 
 
 Trade or Business. 
 
 Cowkeepcr, milk- 
 man, milkscUur 
 or milk-carrier. 
 
 Travelling in lace 
 trade for any 
 hou.se other than 
 plaintiii's. 
 
 Horse-hair manu' 
 facturer. 
 
 Gas meter manu- 
 facturer and ga 
 engineer. 
 
 Covenant by pur 
 chaser of land 
 that vendor 
 should have ex 
 elusive right of 
 supplying beer. 
 
 Manufactui-e c 
 sale of patent 
 leather cloth. 
 
 Surgeon. 
 
 Agreement by 
 vendor of patent 
 to assign to pur- 
 chaser all after- 
 acquired patent 
 rights of like 
 natixre. 
 
 Solicitor (cove- 
 nant in clerk's 
 articles). 
 
 Extent of Restriction 
 in Time. 
 
 Continuance of de- 
 fendant's service 
 with plaintiff and 
 24 mouths after 
 
 Unlimited. 
 
 Unlimited. 
 
 Extent of Restriction 
 in Space. 
 
 Ten years. 
 Unlimited. 
 
 Unlimited. 
 
 So long as plaintiff 
 or his assigns 
 should carry on 
 business. 
 
 Lifetime of ven- 
 dors. 
 
 Unlimited. 
 
 Throe miles from 
 Charles Street, 
 Grosvenor Sq. 
 
 ' 'Any part of the 
 same ground," 
 i.e. the district in 
 ■which defendant 
 was employed 
 as traveller for 
 plaintiffs. 
 
 200 miles from 
 Birmingham. 
 
 20 miles from 
 Great Peter St., 
 Westminster. 
 
 Any public house 
 erected on the 
 land. 
 
 Europe ; but to be 
 construed as = 
 Great Britain or 
 United King- 
 dom, semlle, see 
 p. 351. 
 
 Parish of Newick 
 & 1 miles round, 
 excepting the 
 town of Lewes. 
 
 Eiu'ope. 
 
 London, Middle- 
 sex and Essex ; 
 and unlimited as 
 to acting for 
 clients of plain- 
 tiff's finn, or any 
 one who had been 
 such client dur- 
 ing the term of 
 the articles. 
 
 {c) See p. 31G above.
 
 318 
 
 UNLAWFUL AGREEMENTS. 
 
 Restriction held Reasonable. 
 
 Name and Date of 
 Case. 
 
 Trade or Business. 
 
 Extent of Eestriction 
 in Time. 
 
 Extent of Restriction 
 in Space. 
 
 1879. Bavetj v. 
 
 Outfitter and 
 
 Unlimited (taken 
 
 Five miles from 
 
 Shannon, 4 Ex. 
 
 tailor. 
 
 by the Court as 
 
 Devonport. 
 
 D. 81 (no objec- 
 
 
 for joint lives of 
 
 
 tion taken) . 
 
 
 plaintiff and de- 
 fendant). 
 
 
 1880. Eousillon v. 
 
 Travelling in 
 
 Two years after 
 
 Unlimited. 
 
 Eousillon, U Ch. 
 
 champagne 
 
 leaving plain- 
 
 
 D. 351. 
 
 trade: setting up 
 
 tiff's service as to 
 
 
 
 or entering into 
 
 travelling: tenas 
 
 
 
 partnership in 
 
 to dealing on own 
 
 
 
 same trade. 
 
 account. 
 
 
 Restriction held Unreasonable. 
 
 Name and Date of 
 Case. 
 
 1872. AUsopp. V. 
 Wheatcroft, 15 
 Eq. 59 («^). 
 
 Trade or Business. 
 
 'Shall not di- 
 rectly or indi- 
 rectly sell, pro- 
 cure orders for 
 the sale, or re- 
 commend, or be 
 in any wise con- 
 cerned or en- 
 gaged in the sale 
 or recommenda- 
 tion ... of 
 any Burton ale, 
 &c.,or of anyale, 
 &c., brewed at 
 Burton or offered 
 for sale as such," 
 other than ale, 
 &c., brewed by 
 plaintiffs. 
 
 Extent of Restriction 
 in Time. 
 
 During defend- 
 ant's service with 
 plaintiffs and two 
 years after. 
 
 Extent of Restriction 
 in Space. 
 
 Unlimited. 
 
 Measure- It is now Settled, after some little uncertainty, that 
 distances, distances specified in contracts of this kind are to be mea- 
 sured as the crow flies, i. c. in a straight line on the map, 
 neglecting curvature and inequalities of surface. This is 
 
 {d) This appears to be in direct conflict with Rousillon v. RouslUon, 
 supra.
 
 BESTRAINT OF TRADE. 319 
 
 only a rule of construction, and the parties may prescribe 
 another measurement if they think fit, such as the nearest 
 mode of access (e). 
 
 It is clear law that a contract to serve in a particular Contract 
 business for an indefinite time, or even for life, is not void jifg ^ot 
 as in restraint of trade or on any other ground of public invalid, 
 policy (/). It would not be competent to the parties, 
 however, to attach servile incidents to the contract, such as 
 unlimited rights of personal control and correction, or over 
 the servant's property (r/) . By the French law indefinite 
 contracts of ser^dce are not allowed {//). It is undisputed Contract 
 that an agreement by A. to work for nobody but B. in A.'s elusive 
 particular trade, even for a limited time, would be void in ^^^'']^f 
 
 11 f • 1 1 T • -r. must be 
 
 the absence of a reciprocal obligation upon B. to employ mutual. 
 A. (i). But a promise by B. to employ A. may be collected 
 from the whole tenor of the agreement between them, and 
 so make the agreement good, without any express words to 
 that effect {k) . 
 
 D. The Judicial treatment of unlaufal agreements in 
 general. 
 
 Thus far of the various specific grounds on which agree- D. Rules 
 ments are held unlawful. It remains for us to give as treatment 
 briefly as may be the rules which govern our Courts in of unia^n-- 
 dealing with them, and which are almost without exception ments in 
 independent of the particular ground of illegality. The general. 
 general principle, of course, is that an unlawful agreement 
 cannot be enforced. But this alone is insufficient. We 
 
 [e) Moujiet v. Cole, L. R. 7 Ex. engager ses services qu' a temps, ou 
 
 70, in Ex. Ch. 8 Ex. 32. pour une entreprise determinee: so 
 
 (/) Wallls v. Day, 2 M. & W. the ItaUau Code, 1628. 
 273, 1 Sra. L. C. 377 — 8. The law (J) See next note, and op. the 
 
 of Scotland is apparently the same similar doctrine as to promises of 
 
 according to the modern authorities. marriage, supra. 
 
 Iff) See Hargrave's argument in (k) Pllkbigton v. Scott, 15 M. & 
 
 Sommersett'' s ca. 20 St. T. 49, 66. W. 657. Cp. Hartley v. Cummings, 
 
 [h] Cod. Civ. 1780 : On ne peut 5 C. B. 247.
 
 320 
 
 UNLAWFUL AGREEMENTS. 
 
 still liave to settle more fully what is meant by an unlaw- 
 ful agreement. For an agreement is the complex result of 
 distinct elements, and the illegality must attach to one or 
 more of those elements in particular. It is material whether 
 it be found in the promise, the consideration, or the ultimate 
 piu'pose. Again, there are questions of evidence and pro- 
 cedui^e for which auxiliary rules are needed within the 
 bounds of purely municipal law. Moreover, when the 
 jurisdictions within which a contract is made, is to be per- 
 formed, and is sued upon, do not coincide, it has to be 
 ascertained by what local law the validity of the contract 
 shall be determined (conflict of laws in space) : again the 
 law may be changed between the time of making the con- 
 tract and the time of performance (conflict of laws in time, 
 as it has been called) . 
 
 This general division is a rough one, but will serve to 
 guide the arrangement of the following statement. 
 
 1. Inde- 
 pendent 
 promises, 
 some law- 
 ful and 
 some un- 
 lawful: 
 the lawful 
 ones can 
 be en- 
 forced. 
 
 Unlawfulness of agreement as determined hy ^^articular 
 elements. 
 
 1. A lawful promise made for a lawful consideration is 
 not invalid only by reason of an unlawful promise being 
 made at the same time and for the same consideration. 
 
 In Pigofs case (/) it was resolved that if some of the 
 covenants of an indenture or of the conditions indorsed 
 upon a bond are against law, and some good and lawful, 
 the covenants or conditions which are against law are void 
 ah initio and the others stand good. Accordingly " from 
 Pigot's case, 6 Co. Eep. 26 [m), to the latest authorities it 
 has always been held that when there are contained in the 
 same instrument distinct engagements by which a party 
 binds himself to do certain acts, some of which are legal 
 and some illegal at common law, the performance of those 
 
 (/) 11 Co. Rep. 21b. 
 \m) Sic. in the report. 
 
 Tarts 11, 
 
 12, and 13 of Coke's Reports form 
 vol. G in the edition of 1826.
 
 GENERAL RULES : UNLAWFUL CONSIDERATION OR OBJECT. 321 
 
 which are legal may bo enforced, though the performance 
 of those which are illegal cannot "(«). And where a 
 transaction partly valid and partly not is deliberately 
 separated by the parties into two agreements, one expressing 
 the valid and the other the invalid part ; there a party who 
 is called upon to perform his part of that agreement which 
 is on the face of it valid cannot be heard to say that the 
 transaction as a whole is unlawful and void (o). 
 
 It was formerly supposed that where a deed is void in 
 part by statute it is void altogether : but this is not so. 
 " Where you cannot sever the illegal from the legal part 
 of a covenant, the contract is altogether void ; but where 
 you can sever them, whether the illegality be created by 
 statute or by the common law, you may reject the bad part 
 and retain the good " {p). 
 
 2. If any part of the consideration for a promise or set 2. Uula-w- 
 of promises is unlawful, the whole agreement is void, sideration 
 
 " For it is impossible in such case to apportion the °^ P^';*^ o* 
 
 , , . . . . , coiisidera- 
 
 weight of each part of the consideration m inducing the tion avoids 
 promise" (q). In other words, where independent promises *^^,J^.^" ^ 
 are in part lawful and in part unlawful, those which are meut. 
 lawful can be enforced ; but where any part of an entire 
 consideration is unlawful, all promises founded upon it are 
 void. 
 
 3. When the immediate object of an agreement is un- 3. Agree- 
 lawful the agreement is void. ™^^ Jhose 
 
 This is an elementary proposition, for which it is never- immediate 
 theless rather difficult to find unexceptionable words. We tmlawful. 
 mean it to cover only those cases where either the agree- 
 
 (m) Bank of Australasia V . Breil- {q) Leake on Contracts (let ed.), 
 
 lat, 6 Moo. P. C. 15-2, 201. 409. Waite v. Jones, 1 Bing. N. C. 
 
 (o) Odessa Tramways Co. v. Men- 656, 662. To bo consistent with the 
 
 del (C.A.), 8 Ch. D. 235. foregoing rule this must be limited 
 
 {p) Per Willcs, J. Picherinfi v. to ciscs where the consideration is 
 
 Ilfracombe lii/. Co. L. R. 3 C. P. at really inseparable, 
 p. 250.
 
 322 UNLAWFUL AGREEMENTS. 
 
 ment could not be performed without doing some act 
 unlawful in itself, or the performance is in itself lawful, 
 but on grounds of public policy is not allowed to be made 
 a matter of contract. The statement is material chiefly for 
 the sake of the contrasted class of cases under the next 
 rule. 
 
 4. Where 4. When the immediate object or consideration of an 
 
 ob^c?not agreement is not unlawful, but the intention of one or both 
 
 unlawful; parties in making it is unlawful, then — 
 
 intention If the unlawful intention is at the date of the agreement 
 
 of both common to both parties, or entertained by one party to the 
 
 pRrticSj or Til • • T 
 
 of one knowledge of the other, the agreement is void, 
 kn^ wn to ^^ ^^® Unlawful intention of one party is not known to 
 the other, the other at the date of the agreement, there is a contract 
 ao-reement voidable at the option of the innocent party if he dis- 
 ^^^^' , , covers that intention at any time before the contract is 
 
 unlawiul 
 
 intention executed. 
 
 of one not 
 
 known at 
 
 time Here it is necessary to consider what sort of connexion 
 
 makes . pi 
 
 contract of the subject-matter of the agreement with an unlawful 
 
 at other's P^^^ °^ purpose is enough to show an unlawful intention 
 option. that will vitiate the agreement itself. This is not always 
 constitutes easy to determine. In the words of the Supreme Court of 
 unlawful ^]^g United States :— 
 
 intention 
 
 in such " Questions upon illegal contracts have arisen very often 
 
 both in England and in this country ; and no principle is 
 better settled than that no action can be maintained on a 
 contract the consideration of which is either wicked in 
 itself or prohibited by law. How far this principle is to 
 affect subsequent or collateral contracts, the direct and 
 immediate consideration of which is not immoral or illegal, 
 is a question of considerable intricacy" (r) : or perhaps we 
 should rather say it is a question on which any attempt to 
 lay down fixed and exhaustive rules in detail must lead to 
 
 (>•) Armstrongs. Tulcr, 11 Wheat, at p. 272. 
 
 cases.
 
 ■UNLA-SVFUL USE OF SUBJECT-MATTER. 323 
 
 considerable intricacy : at the date of those remarks how- 
 ever (1826) the law was much loss clear on specific points 
 than it is now. 
 
 Wo have in the first place a well marked class of trans- Intention 
 actions where there is an agreement for the transfer of perty pur- 
 property or possession for a lawful consideration, but for aliased, 
 the purpose of an unlawful use being made of it. All unlawful 
 agreements incident to such a transaction are void ; and it ^^^°* 
 does not matter whether the unlawful purpose is in fact 
 carried out or not {s). The later authorities show that the 
 agreement is void, not merely if the unlawful use of the 
 subject-matter is part of the bargain, but if the intention 
 of the one party so to use it is known to the other at the 
 time of the agreement (/). Thus money lent to be used 
 in an unlawful manner cannot be recovered {u). It is true 
 tliat money lent to pay bets can be recovered, but that, as 
 we have seen, is because there is nothing unlawful in 
 either making a bet or paying it if lost, though the pay- 
 ment cannot be enforced. If goods are sold by a vendor 
 who knows that the purchaser means to apply them to an 
 illegal or immoral purpose, he cannot recover the price : it 
 is the same of letting goods on hire (/). If a building is 
 demised in order to be used in a manner forbidden by a 
 Building Act, the lessor cannot recover on any covenant in 
 the lease (■s). And in like manner if the lessee of a house 
 which to his knowledge is used by the occupiers for im- 
 moral purposes assigns the lease, knowing that the assignee 
 means to continue the same use, he cannot recover on the 
 assignee's covenant to indemnify him against the covenants 
 of the original lease (.r) . It does not matter whether the 
 seller or lessor does or does not expect to be paid out of 
 the fruits of the illegal use of the property (t) . 
 
 (s) Gas L iffJi t S; Coke Co. v. Turner, 213. 
 5 Bing. N. C. 666, in Ex. Ch. 6 ib. (n) Cammn v. Brycc, 3 B. & Aid. 
 
 324. 179. 
 
 {t) Fearce v. Brooks, L. R. 1 Ex. {x) Smith v. White, 1 Eq. 626. 
 
 y2
 
 324 
 
 UNLAWFUL AGREEMENTS. 
 
 Option 
 of party 
 mnocent 
 in the first 
 instance to 
 avoid the 
 contract 
 on dis- 
 covering 
 such in- 
 tention. 
 
 But an 
 executed 
 transfer of 
 possession 
 remains 
 
 good. 
 
 Insurance 
 
 void 
 
 ■where 
 
 voyage 
 
 illegal to 
 
 knowledge 
 
 of owner. 
 
 An owner of property who has contracted to sell or let 
 it, but finds afterwards that the other party means to use 
 it for an unlawful purpose, is entitled (if not bound) to 
 rescind the contract ; nor is he bound to give his reason at 
 the time of refusing to perform it. He may justify the 
 refusal afterwards by showing the unlawful purpose, 
 though he originally gave no reason at all, or even a 
 different reason {a). 
 
 But a completely executed transfer of property or an 
 interest in property, though made on an unlawful con- 
 sideration, or, it is conceived, for an unlawful purpose 
 known to both parties, is valid both at law and in 
 equity (/>), and cannot afterwards be set aside. And an 
 innocent party who discovers the unlawful intention of the 
 other after possession has been delivered under the con- 
 tract is not entitled to treat the transaction as void and 
 resume possession (<?). 
 
 As with contracts voidable on other grounds, this rule 
 applies, it is conceived, only where an interest in possession 
 has been given by conveyance or delivery. The vendor 
 who had sold goods so as to pass the general property, but 
 without delivery, or the lessor who had executed a demise 
 to take effect at a future day, might rescind the contract 
 and stand remitted to his original possession on learning 
 the unlawful use of the property designed by the pur- 
 chaser or lessee (cl). 
 
 On the same principle an insurance on a ship or goods 
 is void if the voyage covered by the insurance is to the 
 knowledge of the owner unlawful (which may happen by 
 the omission of the statutory requirements enacted for the 
 protection of seamen and passengers, as well as in the 
 
 (a) Cowan v. Milboitrn, L. R. 2 
 Ex. 230, see per Bramwell, B. ad 
 Jin. 
 
 (!>) Ayerst v. Jenkins, 16 Eq. 257. 
 
 (c) Feret v. Jlilf, 15 C. B. 207, 
 23 L. J. C. P. 185, where an in- 
 terest in realty liad passed ; but t/u. 
 if the lessor could not have had the 
 
 lease set aside in eqtiity. As to 
 chattels, contra per Martin, B. in 
 Fcarce v. Brooks, L. R. 1 Ex. 217 ; 
 but this seems unsupported : see 
 L. R. 4 Q. B. 311, 315. 
 
 {(l) Cp. Cowan v. 3£ilbourn, L. R. 
 2 Ex. 230.
 
 ULTIMATE PURPOSE UNLAWFUL. 325 
 
 case of trading- witli enemies or the like). " Wliere the 
 object of an Act of Parliament is to prohibit a voyage, 
 the illegality attaching to the illegal voyage attaches also 
 to the policy covering the voyage," if the illegality be 
 known to the assured. But acts of the master or other 
 persons not known to the owner do not vitiate the policy, 
 though they may be such as to render the voyage illegal (c) . 
 
 An agreement may be made void by its connexion with Agree- 
 an unlawful pm^pose, though subsequent to the execution ™i^ected 
 
 of it. with but 
 
 To have that effect, however, the connexion must be qucnt to 
 something more than a mere coni unction of circumstances an imlaw- 
 
 . '=' .'' . tul trans- 
 
 into which the unlawful transaction enters so that without action. 
 
 it there would have been no occasion for the agreement, agreement 
 
 It must amount to a unity of design and purpose such not void 
 
 that the agreement is really part and parcel of one entire iutc<>ial 
 
 unlawful scheme. This is well shown by some cases P''^*^ °i , 
 
 . . , imlawiul 
 
 decided m the Supreme Court of the United States, and design. 
 spreading over a considerable time. They are the more g^^p^^n^ 
 worth special notice as they are unlike anything in our Court, 
 own books. In Aniisfromj v. Toler (/) the point, as put Arm- 
 by the Court in a slightly simplified form, was this : " A. f^^^^S «^- 
 durmg a war contrives a plan for importing goods on his 
 own account from the country of the enemy, and goods are 
 sent to B. by the same vessel. A. at the request of B. 
 becomes surety for the payment of the duties [in fact a 
 commuted payment in lieu of confiscation of the goods 
 
 {e) JFilson v. Jiaiikiii, L. E. 1 Q. money would be applied in support 
 
 B. 163 (Ex. Ch.); Ludgcon v. Pmi- of the rebellion, could not be rccog- 
 
 brokcj, L. R. 9 Q. B. 581, 585, per nized by the U. S. courts as owner 
 
 Quain, J., and authorities there of the cotton :(/<«,?. Field, J. on the 
 
 referred to. Cp. f lu'ther, on the grounds (which seem right) that it 
 
 general head of agreements made was a question not of contract but 
 
 with an unlawful purpose, Hanancr of ownership, and that in deciding 
 
 V. Boane, 12 Wallace (Sup. Ct. on title to jjersoual property the de 
 
 XJ. S.) 342 : in Sprott v. U. S. 20 faclo goveniaient existing at the 
 
 ih. 459, it was held that a buyer of time and place of the transaction 
 
 cotton from the Confederate Govern- must be regarded, 
 
 ment, knowing that the piu-chase- (/) 11 Wheaton 258, 269.
 
 326 UNLAWFUL AGREEMENTS. 
 
 themselves] wliicli accrue on the goods of B., and is com- 
 pelled to pay them ; can he maintain an action on the pro- 
 mise of B. to return this money ?" The answer is that he 
 can, for the " contract made with the government for the 
 payment of duties is a substantive independent contract 
 entirely distinct from the unlawful importation." But it 
 would he otherwise if the goods had been imported on a 
 joint adventure by A. and B. In McBIair v. Gihhes {g) 
 an assignment of shares in a company was held good as 
 between the parties though the company had been origi- 
 nally formed for the unlawful purpose of supporting the 
 Mexicans against the Spanish Grovernment before the in- 
 dependence of Mexico was recognized by the United States. 
 In Miltenherger v. Coo];e {h) the facts were these. In 1866 
 a collector of United States revenue in Mississippi took bills 
 in payment when he ought to have taken coin, his reason 
 being that the state of the country made it still unsafe to 
 have much coin in hand. In account with the government 
 he charged himself and was charged with i]\Q amount as if 
 paid in coin. Then he sued the acceptors on the bills, and 
 it was held there was no such illegality as to prevent him 
 from recovering. If the mode of payment was a breach 
 of duty as against the Federal government, it was open to 
 the government alone to take any objection to it. 
 Fisher r. We return to our own Courts for a case where on the 
 Ex. Cli. ^^ other hand the close connexion with an illegal design was 
 established and the agreement held bad. In Fisher v. 
 Bridges {i) the plaintiff sued the defendant on a simple 
 covenant to pay money. The defence was that the cove- 
 nant was in fact given to secm^e pajTuent of part of the 
 purchase-money of certain leasehold property assigned by 
 the plaintijff to the defendant in pursuance of an unlawful 
 agreement that the land shoidd be resold by lottery con- 
 trary to the statute (/r). The Court of Queen's Bench held 
 
 (<7) 17 Howard 232. 270 ; in Ex. Ch. 3 E. & B. 642, 23 
 
 (/i) 18 Wall;iw- 421. L. J. Q. B. 276. 
 
 (t) 2 E. & B. 118, 22 L. J. Q. B. {k) 12 Geo. 2, c. 28, s. 1.
 
 ULTIMATE PURPOSE UNLAWFUL. 327 
 
 unanimously that the covenant was good, as there was 
 nothing wrong in paying the money, even if the unlawful 
 purpose of the original agreement had in fact been 
 executed : and the case was likened to a bond given in 
 consideration of past cohabitation. But the Court of 
 Exchequer Chamber unanimously reversed this judgment, 
 holding that the covenant was in substance part of an 
 illegal transaction, whether actually given in pui'suance of 
 the first agreement or not. "It is clear that the covenant 
 was given for payment of the purchase-money. It springs 
 from and is a creatm-e of the illegal agreement ; and as 
 the law would not enforce the original contract, so neither 
 will it allow the parties to enforce a security for the pur- 
 chase-money which by the original bargain was tainted 
 with illegality." They further pointed out that the case 
 of a bond given for past cohabitation was not analogous, 
 inasmuch as past cohabitation is not an illegal considera- 
 tion but no consideration at all. But "if an agreement 
 had been made to pay a sum of money in consideration of 
 future cohabitation, and after cohabitation, the money 
 being unpaid, a bond had been given to secure that money, 
 that would be the same case as this ; and such a bond 
 could not under such circumstances be enforced." 
 
 The principle of this judgment has been criticized by Principle 
 considerable authority as " vague in itself and dangerous ?ud"-ment 
 as a precedent " (/). The actual decision, however, does 
 not appear to require anything wider than this — that 
 where a claim for the payment of money as on a simple 
 contract would be bad on the ground of illegality, a sub- 
 sequent security for the same payment, whether given in 
 pursuance of the original agreement or not, is likewise 
 not enforceable : or, more shortly — 
 
 5. Any security for the payment of money under an 5. Security 
 unlawful agreement is itself void, even if the giving of meuts^' 
 the security was not part of the original agreement. under 
 
 (0 1 Sm. L. C. 400,
 
 328 
 
 UNLAWFUL AGREEMENTS. 
 
 unla'n'ful 
 agreement 
 is equally 
 void with 
 the 
 
 original 
 agree- 
 ment. 
 
 To this extent at least the principle of Fisher v. Bridges 
 has been repeatedly acted on {;)n). In Geere v. Mare (in) 
 a policy of assurance was assigned by deed as a further 
 security for the payment of a bill of exchange. The bill 
 itself was given to secure a payment by way of fraudulent 
 preference to a particular creditor, and accepted not by 
 the debtor himself but by a third person. It was held, 
 both on principle and on the authority of Fisher v. Bridges, 
 that the deed could not be enforced. Again in Clatj v. 
 Ray {m) two promissory notes were secretly given by a 
 compounding debtor to a creditor for a sum in excess of 
 the amount of the composition. Judgment was obtained 
 in an action on one of these notes. In consideration of 
 proceedings being stayed and the notes given up a third 
 person gave a guaranty to the creditor for the amount : it 
 was held that on this guaranty no action could be main- 
 tained. 
 
 This is a convenient place to state a rule of a more 
 special kind which has already been assumed in the dis- 
 cussion of various instances of illegality, and the necessity 
 of which is obvious : namely : — 
 
 ba. Bond 
 
 ■uith 
 
 unlawful 
 
 condition 
 
 is wholly 
 
 void. 
 
 ba. If the condition of a bond is unlawful, the whole 
 bond is void {n). 
 
 Rules of Evidence and Procedure touching Unlaivful 
 Agreements. 
 
 6. Extrinsic evidence is always admissible to show that 
 always be ^^1© object or Consideration of an agreement is in fact 
 
 Bhownhy iUegal. 
 
 6. Illega 
 lity may 
 
 (m) Grmme v. Wroughton, 11 Ex. 
 146, 24 L. J. Ex. 265 ; Gcere v. 
 3Iare, 2 H. & C. 339, 33 L. J. Ex. 
 50; Clay v. Ray, 17 C. B. N. S. 
 188. 
 
 («) Co. Lit. 206 /;, Shepp. Touch. 
 372 ; where it is said that if the 
 
 matter of the condition be only 
 malum prohibitum, the obhgation is 
 absolute (as if the condition were 
 merely impossible) : but this dis- 
 tinction is now clearly not law : 
 sec Diivergierx. Fclloics, 10 B. & C. 
 820.
 
 EVIDENCE OF UNLAWFUL PURPOSE, 329 
 
 This is an elementary rule established by decisions both extrinsic 
 at law (o) and in equity (p). Even a document which for ®^*^^^^^- 
 want of a stamp would not be available to establish any 
 right is admissible to prove the illegal nature of the trans- 
 action to which it belongs (q) . 
 
 But where the immediate object of the agreement (in 
 the sense explained above) is not unlawful, we have to 
 bear in mind a qualifying rule which has been thus 
 stated : 
 
 6((. "When it is sought to avoid an agreement not being in itself Ga. AVhere 
 
 unlawful on the ground of its being meant as part of an unlawful scheme unlawful 
 
 or to carry out an unlawful obiect, it must be shown that such was the l^ ^^ ^°^\ 
 
 is aile^^ed 
 intention of the parties at the time of making the agreement " {>■). ^^ mus^ be 
 
 showTi to 
 
 The fact that unlawful means are used in performing an existed at 
 agreement which is pj'inid facie lawful and capable of being <iate of 
 lawfully performed does not of itself make the agreement ment. 
 unlawful (.s) . This or other subsequent conduct of the ^^^^^' 
 parties in the matter of the agreement may be evidence, conduct of 
 but evidence only, that a violation of the law was part of ^IVbe 
 their original intention, and whether it was so is a pure evidence of 
 question of fact(f). The omission of statutory requisites unfa^\-ful 
 in carrying on a partnership business is consistent with intention, 
 the contract of partnership itself being lawftd ; but if it 
 is shown as a fact that there was from the first a secret 
 agreement to carry on the business in an illegal manner, 
 the whole must be taken as one illegal transaction («). 
 Again, it is no answer to a claim for an account of part- 
 
 (o) Collins V. Blantern, 1 Sm. L. City of Memphis \. Brown, 20 "Wal- 
 
 C. 369. lace 289. 
 
 [p) Rcijnell \. Sprije, 1 D. M. G. (t) Fraserv. Eill, 1 McQu. 392. 
 
 660, 672, per Knight Bruce, L. J. (w) Armstrong v. Armstrong, 3 M. 
 
 [q) Coppock V. Bower, 4 M. & W. & K. 45, 64, s. c. nom. Armstrong 
 
 361. v. Lewis, in Ex. Ch. 2 Cr. & M. 274, 
 
 (r) Lord Howdcn v. Simpson, 10 297. Notwithstanding what is here 
 
 A. &E. 793, 818. said as to such inferences of fact 
 
 (.«) A subsequent agreement to beiugfor the jury, the matter seems 
 
 vary the performance of a contract to have been left at large for the 
 
 in a way that would make it un- Court in IVaugh v. Morris, L. R. 8 
 
 lawful is merely inoperative, and Q. B. 202 (see next paragraph), 
 leaves the original contract in force :
 
 330 
 
 UNLAAVFUL AGREEMENTS. 
 
 Waugh V. 
 Moriis. 
 Material 
 on the 
 question 
 of inten- 
 tion 
 
 TS'liether 
 the pai'ties 
 know the 
 law. 
 
 nership profits that there was some collateral breach of 
 the law in the particular transaction in which they were 
 earned {x). Where a duly enrolled deed infer vivos pur- 
 ported to create a rent-charge for charitable purposes, but 
 the deed remained in the grantor's keeping, no payment 
 was made dui'ing his lifetime, nor was the existence of the 
 deed communicated to the persons interested, and the 
 conduct of the parties otherwise showed an understanding 
 that the deed should not take effect till after the grantor's 
 death, it was set aside as an evasion of the Mortmain 
 Act(^). Again, an agreement is not unlawful merely 
 because something remains to be done by one of the 
 parties in order to make the performance of the agreement 
 or of some part of it lawful, such as obtaining a licence 
 from the Crown {z) . On the same principle it is not illegal 
 for a highway board to give a licence to a gas company to 
 open a highway within the board's jurisdiction, for it must 
 be taken to mean that they are to do it so as not to create 
 a nuisance {a). 
 
 In Waufjh V. Morris {b) it was agreed by charter-party 
 that a ship then at Trouville should go thence with a cargo 
 of hay to London, and all cargo was to be brought and 
 taken from the ship alongside. Before the date of the 
 charter-party an Order in Council had been made and 
 published under the Contagious Diseases (Animals) Act, 
 18G9, prohibiting the landing of hay from France in this 
 country. The parties did not know of this, and the master 
 learnt it for the first time on arriving in the Thames. In 
 the result the charterer took the cargo from alongside the 
 ship in the river into another vessel and exported it, as he 
 lawfully might, but after considerable delay. The ship- 
 owner sued him for demurrage, and he contended that the 
 contract was illegal (though it had in fact been lawfully 
 
 (a) Sharp v. Taylor, 2 Ph. 801. Co. Rop. 25 a, the like as to a con- 
 
 (y) Way v. East, 2 Drew. 44. dition in a devise. 
 
 [z) Sewell V. Royal Exch. Assu- («) Edgware Highway Board v. 
 
 ranee Co. 4 Taunt. 856 ; Haines v. Harrow Gas Co. L. R. 10 Q. B. 92. 
 
 Bush; 5 ib. 821 ; cp. Porter' n ca. 1 {l>) L. R. 8 Q. B. 202.
 
 EVIDENCE OF UNLAWFUL PURPOSE. 331 
 
 performed), as the parties liad intended it to be performed 
 by means which at the time of the contract were unLawful, 
 viz. landing the hay in tlie port of London. The Court 
 however refused to take this view. It was true that the ' 
 plaintiff contemplated and expected tliat tlie hay would be 
 landed, as that would be the natural course of things. 
 But the landing was no part of the contract, and if the 
 plaintiff had had before him the possibility of the landing 
 beiug forbidden, he would probably have expected the de- 
 fendant 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 Avhich cannot 
 be perfonned without a violation of the law it is void, whether the parties 
 knew the law or not. But we tliink 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 intention to break the law ; and if this be so, the knowledge 
 of what the law is becomes of great importance " (c) . 
 
 But on the other hand where an agreement is prima Where 
 
 facie illegal, it lies on the party seeking to enforce it to ^fi,l^f^a^i'g 
 
 show that the intention was not illegal. It is not enough imla^vful, 
 
 to show a mere possibility of the agreement being lawfully enouo-h to 
 
 performed in particular contingent events. *' If there be show mere 
 
 IP PI -n T • possibihty 
 
 on the lace oi the agreement an illegal intention, the of lawful 
 burden lies on the party who uses expressions prima facie ance ™' 
 importing an illegal purpose to show that the intention 
 was legal" {d). 
 
 We now come to the rule, which we will first state pro- As to 
 visionally in a general form, that money or property paid ^'^'^^^^^"^S' 
 or delivered under an imlawful agreement cannot be money or 
 recovered back. property. 
 
 ((■) L. R. 8 Q. B. 207-8. prohibent, siperpetuamcausamser- 
 ((;) Holland \. Hall, 1 B. & Aid. vaturum est, cessat obligatio . . 
 53, per Abbott, J. ; AUkins v. Jupe, quamquam etiam si non sit perpetua 
 2 C. P. D. 375. The same prin- causa . . . idem dicendum est, 
 cipleis expressed in a different form quia statim contra moi-es sit." D. 
 by Paulus: "Item quod leges fieri 45. 1. de v. o. 35 § 1.
 
 332 
 
 UNLAWFUL AGREEMENTS. 
 
 Tliis rule (wliioh is subject to exceptions to be presently 
 stated) is the chief part, though not quite the whole, of 
 wliat is meant by the maxim In pari delicto potior est 
 condicio defendentis (e). 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 agree- 
 ment is unavoidably beneficial to the party sued upon it. 
 As it is sometimes expressed, the Court is neutral between 
 the parties. The matter is thus put by Lord Mansfield : 
 
 Lord 
 Mans- 
 field's ex- 
 planation 
 of the 
 rule. 
 
 " The objection, that a contract is immoral or illegal as between plain- 
 tiff 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 advantage of contrary to the real justice as between 
 liim and the plaintiff, by accident, if I may say so. The principle of 
 Ijublic policy is this : ex dolo inalo 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 
 ui^on that ground the Court goes ; not for the sake of the defendant, but 
 because they will not lend their aid to such a plaintiff. So if the plaintiff 
 and defendant were to change sides, and the defendant was to bring his 
 action against the plaintiff, the latter would then have the advantage of 
 it ; for where both are equally in fault, potior est conditio defendcntis " (/). 
 
 Plaintiff The test for the application of the rule is whether the 
 
 can't plaintiff can make out his case otherwise than " through 
 
 recover ■'■ _ , ^ ^ 
 
 where his the medium and by the act of an illegal transaction to 
 
 hiwful"' which he was himself a party " {(j). It is not confined to 
 
 coudut^t is the case of actual money payments, though tliat is the 
 
 own case, most common. Where the plaintiff had deposited the half 
 
 [e) Cp. D. 50. 17. de reg. iuris, 
 lo4, C. 4. 7. de condict. ob turpem 
 causam, 2. 
 
 (/) l[olma)i v. JoIdisou, Cowp. 
 341, 343. 
 
 [g) Taijlory. Chester, L.R. 4 Q.B. 
 309, 314.
 
 WHEN PAYMENTS CAN BE RECOYEllED. 333 
 
 of a bank note with the defendant by way of pledge to 
 secure the repayment of money duo for wine and suppers 
 supplied by the defendant in a brothel and disorderly 
 house kept by the defendant for the purpose of being con- 
 sumed there in a debauch, and for money lent for similar 
 pui'poses, it was held that the plaintiff could not recover, 
 as it was necessary to his case to show the true character 
 of the deposit. (This is apparent by the coiu'se of the 
 pleadings ; the declaration was on a bailment of the half- 
 note to be re-delivered on request, and in detinue. Pleas, 
 in effect, that it was deposited by way of pledge to secure 
 money due. lleplication, the immoral character of the 
 debt as above) {//). 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 which a special property passed, and 
 that such property must remain (/). 
 
 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 (/•). 
 
 Independently of the special grounds of this rule, a 
 completely executed transfer of property, though originally 
 made upon an unlawful consideration or in pursuance of 
 an unlawful agreement, is afterwards valid and irrevocable 
 both at law and in equity (/). 
 
 The rule is not applicable in the following classes of 
 cases, most of which however cannot properly be called 
 exceptions. 
 
 An agent is not discharged from accounting to his prin- Duty of 
 cipal by reason of past unlawful acts or intentions of the tSSees^o 
 principal collateral to the matter of the agency. If A. account to 
 
 (A) L. R. 4 Q. B. at p. 312. (/.-) Fivaz v. NicholU, 2 C. B. 501, 
 
 (j) Couv^aie Ex parte Caldecott, A: 513; a peculiar and apparently 
 
 Ch. D. 150, p. 306 above ; Begbie solitary example. 
 
 V. Phosphate Seu-nge Co. L. R. 10 (/) Ai/erst v. Jci/kins, 16 Eq. 275 
 
 Q B. 491, 500, affd. in C. A. 1 Q. Cp. M'Callan v. Mortimer (Y.^ Ch ) 
 
 B. D. 679. 9 M. & W. G3G.
 
 334 
 
 "UNLAWFUL AGREEMENTS. 
 
 principals pays money to B. for the use of C, B. cannot justify a 
 stamlin'^ refusal to pay over to C. by showing that it was paid 
 M^^'^^r"'^ under an unlawful agreement between A. and C. (m). 
 "^ ' Again, if A. and B. make bets at a horse-race on a joint 
 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 : here however there is nothing illegal in any part of the 
 business (»). In like manner the right to an account of 
 partnership profits is not lost by the particular transaction 
 in which they were earned having involved a breach of the 
 law (o) . 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 miincorporated trading association, though 
 it was doubtful whether the association itself was not 
 illegal {p). 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, {q). If a man entrusts 
 another as his agent with money to be paid for an un- 
 lawful purpose, he may recover it at any time before it is 
 actually so paid ; or even if the agent does pay it after 
 having been warned not to do so (r) ; the reason of this, 
 clearly put in one of the earlier cases (s), is that whether 
 
 (m) Tenant y. Elliott, IB. &P. 3. 
 
 [n) Johnson v. Lansley, 12 C. B. 
 468. And where B. nses moneys of 
 his own and A.'s in betting, on the 
 terms of dividing winnings in cer- 
 tain proportions, A. can sue B. on 
 a cheque given for his share of 
 winnings : Beeston v. Becston, 1 Ex. 
 D. 13. Cp. and dist. Higginson v. 
 Simpson, 2 C. P. D. 76, where the 
 ti'ansaction in question was held to 
 be in substance a mere wager. 
 Where an agent is emi)loycd to bet 
 in his own name and receive win- 
 nings or pay losses, the authority 
 to pay losses becomes irrovociiblo 
 on the bet being made ; Bead v. 
 Anderson (C. A.), 13 Q. B. D. 779 
 (Bowen and Fry, L.JJ. affirming 
 Hawkins, J., diss. Brett, M. 11.). 
 
 The groiuid taken by the majority 
 is that, under the conditions of 
 betting as commonly practised and 
 known to the parties, the employ- 
 ment of the plaintiff must imply 
 an idemnity ag'ainst all payments 
 made in the regular course of 
 business. 
 
 (o) Sharp v. Taglor, 2 Ph. 801. 
 Of course it is not so where the 
 main object of the partnership is 
 unlawful. 
 
 (p) Shcpjmrd V. Oxcnford, 1 K. & 
 J. 491. 
 
 {q) Worihington v. Curtis, 1 Ch. 
 D. 419. 
 
 ()•) Hasteloiv v. Jackson, 8B. & C. 
 221, 22G. 
 
 (.v) Taglorv. Lnulcg, 9 East 49.
 
 RECOVERY FROM AGENT OR STAKEHOLDER. 335 
 
 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 {f}. 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 ; ho must account for so mucli of 
 that part as he has not actually paid over (/). The 
 language of the statute 8 & 9 Vict. e. 109, s. 18, wliieh 
 says that no money can be recovered " 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 cither 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 (;/). 
 
 Where money has been paid under an unlawful agree- Money 
 ment, but nothing else done in performance of it, the aWe^back 
 money may be recovered back. But in the decision which where 
 estabhshes this exception it is intimated that it probably ^'ot exe- 
 would not be allowed if the agreement were actually cuted. 
 criminal or immoral (.r). "If money is paid or goods 
 delivered for an illegal purpose, the j)erson who has so 
 paid the money or delivered the goods may recover them 
 back before the illegal purpose is carried out ; but if he 
 waits till the illegal purpose is carried out, or if he seeks 
 to enforce the illegal transaction, in neither case can he 
 maintain an action "(,y). And the action cannot be 
 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 {//) A. had delivered goods 
 to B. under a fictitious assignment for the purpose of de- 
 
 {t) Bone y.EMess, 5 H. fclST. 925, (.r) Tappenden v. Randall, 2 B. & 
 
 29 L. J. Ex. 438. P. 467. 
 
 («) jrajgle v. Higgs (C. A.), 2 Ex. {y) Per Mellish, L. J. Taylor v. 
 
 D. 422; Hampden v. Wahh, 1 Q. Bouers, 1 Q. B. D. 291, 300; cp. 
 
 B. D. 189, -where former autho- Wihoti v. Slrvgncll, 7 Q. B. D. at 
 
 rities are collected and considered ; p. 651, per Stephen, J. 
 
 Trimble v. Hill (J.C.) on a colonial {z) Falijart v. Lechie, 6 M. & S. 
 
 statute in the same term?, 5 App. 290. 
 Ca. 342.
 
 336 
 
 UNLAWFUL AGREEMENTS. 
 
 Parties not 
 in pari 
 delicto. 
 Purchase 
 of credi- 
 tor's 
 assent to 
 composi- 
 tion. 
 
 frauding A.'s creditors. B. executed a bill of sale of the 
 goods to C, who was privy to the scheme, without A.'s 
 assent. It was held that A. might repudiate the whole 
 transaction and demand the return of the goods from 0. 
 In S//)ncs V. IlugJws {a), a case somewhat of the same kind, 
 the plaintiff had assigned certain leasehold property to a 
 trustee with the intention of defeating his creditors ; after- 
 wards 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 reconveyance. It will be observed how- 
 ever 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 above men- 
 tioned as to recovering money from agents or stakeholders 
 are also put partly on this ground, which however does not 
 seem necessary to them (/>). 
 
 In certain cases the parties are said not to be i)i pari 
 delicto, namely where the unlawful agreement and the 
 payment take place under circumstances practically 
 amounting to coercion. 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 assent to his discharge in bankruptcy or to 
 a composition. The leading case is now Atkinson v. 
 I)enhij{c). There the defendant, one of the plaintiff's 
 creditors, refused to accept the composition unless he had 
 something more, and the plaintiff paid him 50/. before he 
 
 («) 9 Eq. 475. 
 
 [b) Hastclow V. Jackson, 8 B. & C. 
 221. Hearing x. Helling s, 14 M. & 
 W. 711, ■whore that case was 
 doubted, decides only this: A man 
 cannot sue a stakeholder for the 
 whole of the sweepstakes he has 
 won in a lottery, and then reply to 
 the objection of illegality tliat if 
 
 tlie whole thing is illegal he must 
 at all events recover his own stake. 
 Allegans contraria non est audien- 
 dus. 
 
 (c) 6 H. & N. 778, 30 L. J. Ex. 
 361, in Ex. Ch. 7 H. & N. 934, 31 
 L. J. Ex. 362 : the cliief earlier 
 ones are Smith v. Bromlcfj, 2 Doug. 
 695, Smith v. Ciif, 6 M. & S. 160.
 
 WHEN PAYMENTS CAN liK RECOVEREJ). 'J37 
 
 executed tlio composition deed. It was held that this 
 money could be recovered back. " It is true," said the 
 Coui't 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 (d). 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 (e). 
 
 In equity the application of this doctrine has been the Like 
 
 , , .-, ^ • 1 • •/ • doctrine 
 
 same m substance, though more varied m its circum- ^f equity, 
 stances. 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 the transaction, relief is given to him, as we know 
 from various authorities, of which Osborne v. Williams [see 
 below] is one" (/). 
 
 On this principle relief was given and an account Special 
 decreed in Osborne v. Williams [(j), where the unlawful sale ^^-eUef. 
 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 Reijnell v. 
 Spryc {Ii) 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 
 
 {d) Williams v. Hedlet/, 8 East, (/) Metjnell v. Spri/e, 1 D. M. G. 
 
 378. G60, 679. 
 
 (e) Wilson V. Eai/, 10 A. & E. 82. {y) 18 Ves. 379. 
 
 (/i) 1 D. M. G. GGO, G79.
 
 338 UNLAWFUL AGREEMENTS. 
 
 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 property recovered. And in a later 
 case a mortgage to secm'e 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 in- 
 volved (/). A wider exception is made, as we have seen 
 above, in the case of agreements of which the consideration 
 is future illicit cohabitation between the parties. The 
 treatment of this kind of agreements is altogether some- 
 what anomalous and ill- defined, and may be considered 
 open to review by a Court of Appeal should occasion arise. 
 Apart from this particular question, there seems to be no 
 reason (at all events since the Judicature Acts) why the 
 analogy of the cases in equity where agreements have been 
 set aside should not apply to the legal right of recovering 
 back money paid. If this be correct, the rule and its 
 qualifications will be to this eilect : 
 
 Statement 7. Money paid or propei-ty delivered under an unlawful 
 as quali- ^ agreement cannot be recovered back, nor the agreement set 
 fied. 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 im- 
 moral ?) ; 
 
 or unless the agreement was made under such circum- 
 stances as between the parties that if otherwise lawful it 
 would be voidable at the option of the party seeking 
 relief {k) ; 
 
 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. 
 
 {i) W. V. B. 32 Beav. 674. autliorities, but is submitted as 
 
 {k) Tills fonn of expression is fairly representing the result, 
 not positively warranted by the
 
 CONFLTCT OF LAWS. 339 
 
 8. Where a difference of local laws is in question, the 8. Conflict 
 lawfulness of a contract is to bo determined by the law LacJ^ "^ 
 governing the substance of the contract (that is, according Lex loci 
 to the English authorities, the law of the place where the p'"';ST 
 contract is made, subject to the consideration of matters 
 showing a different intention, for example, if the contract 
 is wholly to be performed in some other place) (/). 
 
 Exception 1. — An agreement entered into by a citizen unless 
 in violation of a prohibitory law of his own state cannot in ty'^r^xj- 
 any case be enforced in any court of that state. hibitoiy 
 
 Exception 2. — An agreement contrary to common prin- law of the 
 ciples of iustice or morality, or to the interests of the state, ^^rum : 
 
 , "^ 'or unless 
 
 cannot in any case be enforced. the agree- 
 
 What we here have to do with is in truth a fragment of ^^^raL 
 a much larger subject, namely, the consideration of the to com- 
 local law governing obligations in general (;;^). tice or 
 
 The main proposition is well established, and it would ^"tf'i"*^**^ 
 be idle to attempt in this place any abridgment or restate- state. 
 ment of what is said upon it by writers on so-called Private ^^ to the 
 International Law (»). The first exception is a simple one. ception. 
 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 
 positively forbid the subjects of the state to undertake 
 
 (?) Westlake, 234, 237 ; per Erie, violation of English law, it cannot 
 C. J., Branley v. S. E. E. Co. 12 C. be enforced here, notwithstanding 
 B. N. S. at p. 72: "As a general that it may have been valid by its 
 vnle, the lex loci to?itmctus governs proper law. Where a contract con- 
 in deciding whether there was ille- flicts with what are deemed in 
 gality in the contract ; " Lloyd v. Eug-land to be essential pubhc or 
 Gidbert., Ex. Ch., L. R., 1 Q. E. moral interests, it cannot be en- 
 115, 122, in a very careful judg- forced here, notwithstanding that 
 ment prepared by Willes, J. ; Jacobs it may have been valid by its proper 
 V. Cridit Lyonnais, 0. A., 12 Q. B. law. 
 D. 589, 600. («) The name, though current, 
 
 (;«) For the treatment of it in is both clumsy and absurd. The 
 
 this connexion, see Sa'S'igny, Syst. rules of municipal law concerning 
 
 8. 269-278 (§ 37-1 C.) ; Story, Con- the recognition and application of 
 
 flict of Laws, §§ 243 sqq. 2-58 sqq. ; foreign laws have a certain cosmo- 
 
 Wharton, ^ 482-497. Mr. West- politan character, but are not in- 
 
 lake (Private Intern. Law, ed. 1880, ternational: they are ins gentium, 
 
 §^ 203, 204) states the rules thus : but not inter gentes. 
 Where a contract contemplated the 
 
 z2
 
 340 
 
 UNLAWFUL AGREEMENTS. 
 
 As to the 
 second ex- 
 ception. 
 
 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 subject, 
 and itself lawful at the place where it was made, if it is 
 such that British subjects are forbidden by Act of Parlia- 
 ment to make it anywhere (o). It may be doubted 
 whether such a contract would be recognized even by the 
 courts of the state where it was made, unless the prohi- 
 bition were of so hostile or restrictive a character as 
 between the two states {e. g. if the rulers of a people 
 skilled in a particular industry should forbid them to 
 exercise or teach that industry abroad) as not to fall 
 within the ordinary principles of comity. The authorities 
 already cited (p. 250 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 diffi- 
 culties touching its real meaning and extent (7;). 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. 
 
 Transac- 
 tions con- 
 trary to 
 common 
 piinciples 
 of civilized 
 nations, or 
 founded 
 on a 
 wholly 
 foreijirn 
 
 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 gentmm in its proper sense — the 
 principles of law and morality common to civilized 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 
 
 (0) Santos V. Illidcje, in Ex. Ch. 
 8 C. B. N. S. at p. 874, 29 L. J. 
 C. P. at p. 350, per Blackbnm, J. 
 
 {p) "Whether an action can be 
 supported in England on a contract 
 
 which is void by the law of England, 
 but valid by the law of the country 
 where the matter is transacted, ia 
 a great question " : perWilmot, J. 
 llubinson v. Bland, 2 Buit. 1083.
 
 CONFLICT OF J.AWt«. 341 
 
 derogation of all civilized laws [p). This indeed seems a system of 
 fundamental assumption in the administration of justice, i-Xtions 
 in whatever forum and bj whatever procedure. Likewise not rccog- 
 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 foundation of its procedure, and its legal habit of 
 mind ((/), so to speak, are wholly unfitted to deal with 
 them. For this reason the English Divorce Court cannot 
 entertain a suit founded on a Mormon marriage. Apart 
 from the question whether such marriages Avould be 
 regarded by our courts as immoral iure gentium (/•), the 
 matrimonial law of England is wholly inapplicable to 
 polygamy, and the attempt to apply it would lead to 
 manifest absurdities («). Practically these difficulties can 
 hardly arise except as to rights derived from family rela- 
 tions. One can hardly imagine them in the proper region 
 of contracts. 
 
 Again, there are sundry judicial observations to be found Butoppo- 
 which go to the further extent of saying that no court will mfn/fcipni 
 
 enforce anything contrary to the particular views of justice pi'iuciples 
 y, y 1 •, ..,.•'. of law not 
 
 mornlity or policy wliereon its own municipal jurispru- enough, 
 dence is founded. And this doctrine is supported by the 
 general acceptance of text-writers, which in this depart- 
 ment of law must needs count for more than in any other, 
 
 [p] It has been laid down that Eccldshewusstscin of the Court, 
 
 contracts to bribe or corruptly in- (r) A conclusion which would not 
 
 fluence officers of a foreign govern- imply any offence to the Queen's 
 
 ment — even if not prohibited by Hindu and Mahometan subjects, or 
 
 the law of that government — will be inconsistent with our adminis- 
 
 not be enforced in the coiu'ts of the tration of native law in British 
 
 United States : Oscanyan v. Ar/iis India. The immemorial institu- 
 
 Co. 103 U.S. 261, 277; and this tious of Eastern races are obviously 
 
 not in the interest of the foreign on a different footing altogether 
 
 government, but for the sake of from the fantastic and retrograde 
 
 morality and the dignity of law at devices of a degenerate fraction in 
 
 home. the "West. 
 
 iq) In German one might speak (a) Hpde v. Hyde ij- TFoodinansce, 
 
 "without any strangeness of the L. R. 1 P. & D. 130.
 
 342 
 
 UNLAWFUL AGREEMENTS. 
 
 Contract 
 for sale of 
 slaves 
 enforced 
 in Santos 
 V. Illidpre. 
 
 owing to its comparative poverty in decisive authorities. 
 But a test question is to be found in the treatment of 
 rights arising out of slavery by the courts of a free country : 
 and for England at least the decision of the Exchequer 
 Chamber in Santos v. lUidge (t) has given such an answer 
 to it as makes the prevailing opinion of the books unten- 
 able. Slavery is as repugnant to the principles of English 
 law as anything can well be which is so far admitted by 
 any other civilized system that any serious question of the 
 conflict of laws can arise upon it. There is no doubt that 
 neither the sfafits of slavery nor any personal right of the 
 master or duty of the slave incident thereto can exist in 
 England (?r), or within the protection of English law (.»). 
 But it long remained uncertain how an English court would 
 deal with a contract concerning slaves Avliich was lawful 
 in the country where it was made and to be performed. 
 Passing over earlier and indecisive authorities {>/), we find 
 Lord Mansfield assuming that a contract for the sale of a 
 slave may be good here (s). On the other hand, Best, J. 
 thought no action " founded upon a right arising out of 
 slavery " would be maintainable in the municipal courts 
 of this country (a). But in Santos v. lUidge (b) a Brazilian 
 sued an English firm trading in Brazil for the non-delivery 
 of slaves under a contract for the 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 Chamber held that it was not. 
 
 {t) 8 C. B. N. S. 861, 29 L. J. 
 C. P. 348, revg. s. c. in coui't be- 
 low, 6 C. B. N. S. 841, 28 L. J. 
 C. ]?. 317. Very strangely there 
 is no mention of the case either in 
 Wharton's Conflict of Laws or in 
 the last edition of Story. 
 
 {») Somiuersct€ s ca. 20 St. T. 1. 
 
 (x) Viz. on board an Euglish 
 ship of war on the high seas or in 
 hostile occupation of territorial 
 
 waters, Forbes v. Cochrane, 2 B. & 
 C. 448. 
 
 {y) They are collected in Har- 
 gi'ave's argument in SommerseW s 
 case. 
 
 (:;) 20 St. T. 79. 
 
 [a) Forbes v. Cochrane, 2 B. & C. 
 at p. 468. To same effect Story 
 § 259, in spite of American autho- 
 rity being adverse. 
 
 \b) See note (<), ante.
 
 CONFLICT OF LAWS. 343 
 
 It was not oven contended that at common law the court 
 must regard a contract for the sale of slaves as so repug- 
 nant to English principles of justice that, wherever made, 
 it could not be enforced in England. Nor can it be sug- 
 gested that the point was overlooked, for it appears to 
 have been marked for argument. 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 im- 
 possible to say tliat purely municipal views of right and 
 wrong 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 been almost always determined on 
 considerations of local law, and in particular of the law of 
 the place where the contract was to be performed. 
 
 Thus in Bohiuson v. Bland {e) the plaintiff sued (1) upon Earlier 
 a bill of exchange drawn upo)i England to secure money gi^iered"^' 
 won at play in France : (2) for money won at play in with re- 
 France : (3) for money lent for play at the same time and the gene- 
 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 [d), and so could not in any case be 
 sued for here ; but as to the money lent, the loan was law- 
 ful in France and therefore recoverable here. Wilmot, J. 
 said that an action could be maintained in some coun- 
 tries by a courtesan for the price of her prostitution, but 
 certainly would not be allow^ed 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 com-ts, we could appeal, not 
 
 {c) 2 BiuT. 1077. the court would in any case have 
 
 ((?) Nor, under the circumstances, declined to take notice of an ex- 
 
 in the marshal's court of honom* traordinary and extra-legal juris- 
 
 which then existed ; but it seems diction of that sort,
 
 344 UNLAWFUL AGREEMENTS. 
 
 to our own municipal notions of morality, but to the 
 Roman law as expressing the common and continuous 
 understanding of civilized nations. Such a bargain is im- 
 moral hire gcnthim. 
 
 In Quarn'er v. Colston (e) 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 place at which the money 
 was to be used in play. That law not being 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) (/), 
 but by the law of England. These cases do show, how- 
 ever, 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 (//) . 
 
 In Hojie V. Iloj^e (//) an agreement made between a 
 husband and wife, British subjects domiciled in France, 
 provided for two things which made the agreement void 
 
 (e) 1 Ph. 147. must be reckoned strictly compul- 
 
 (/) The local law might conceiv- sory (von streng positiver, zwin- 
 
 ably, without making gaming un- gender Natur) — i. c. must be ap- 
 
 lawful, reduce debts for money lent plied without regard to local law 
 
 at play to the rank of natural ob- by every court within their alle- 
 
 ligations or debts of honour not giance, but are not to be regarded 
 
 enforceable by legal process : if the by any court outside it. Syst. 8. 
 
 view in the text be correct, the 270. 
 
 existence of sucli a law wf)uld maico (A) 8 D. M. G. 731 ; per Knight 
 
 no difference in the English court. Bruce, L. J. at p. 740; perTui'ner, 
 
 ((/) (Juntra Savigny, wlio thinks L. J. at p. 743. 
 laws relating to usury and gamiu<r
 
 CONFLICT OF LAWS. 345 
 
 in an Engli.sli court : the collusive conduct of a divorce 
 suit in England, and the 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 clomicil. Knight Bruce, L. J. put his judgment 
 joartly 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 be enforced, 
 and ho appears to have thought the provision as to the 
 custody of the childi'en was one that an English coiu't 
 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 reconcileable with Santos v. Illidge. 
 
 In Grell v. Levy (?) an agreement was made in France 
 between an English attorney and a French subject that the 
 attorney should recover 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 by an officer of an English 
 court {k). Perhaps, indeed, the English law governing 
 the relations 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 {I) . 
 
 As for agreements contrary to the public interests of the As to 
 state in whose courts they are sued upon, it is obvious ^^4' 
 that the coui'ts must refuse to enforce them without con- against 
 sidering any foreign law. The like rule applies to the Eiterestof 
 class of agreements in aid of hostilities against a friendly state, 
 state of which we have ah'eady spoken. In practice, 
 
 ((■) IG C. B. N. S. 73. [1) See judgment of Wimams, J. 
 
 (/.-) Per Eric, C. J. at p. 79.
 
 346 
 
 UNLAWFUL AGREEMENTS. 
 
 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 Cuba would 
 not be lawful in England ; but it would also not be lawful 
 in New York, and for the same reason. It might possibly 
 happen on the other hand that the United States should 
 recognize the Cuban insurgents 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 nothing 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 assump- 
 tions as to the conduct to be expected at the hands of 
 civilized legislatures and tribunals. It is in theory per- 
 fectly competent 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 coui'ts, in the absence of any paramount 
 directions, to pay as much or as little regard as they please 
 to any foreign opinion or authority. 
 
 Couflict 
 of laws in 
 time. 
 9. Where 
 perfonn- 
 ance be- 
 comes un- 
 lawful, 
 contract 
 dissolved. 
 
 9. "Where the performance of a contract lawful in its 
 inception is made unlawful by any subsequent event, the 
 contract is thereby dissolved [m). 
 
 Explanation. — "Where the performance is subsequently 
 forbidden by a foreign law, it is deemed to have become 
 not unlawful but impossible [n). 
 
 This rule does not call for any discussion. It is ad- 
 mitted as certain in Atkinson v. llitcJtic (o), and is suffi- 
 
 (;>() Atkinson v. Bltrhlc, 10 East, 
 630 ; Esposito v. Boivden, p. 279, 
 supra. 
 
 («) Barker v. Hodgson, 3 M. & S. 
 2C7 ; Jacobs Y. Credit Lyonnais, 0. A. 
 VI Q. B. D. 589. 
 
 (o) Sec note (»«), ante.
 
 CONFLICT OF LAWS IN TIME. 347 
 
 ciently illustrated by the modern case of Esposito v. Bow- 
 den (o), of whicli some account has already been given. It 
 applies to negative as well as to affirmative promises. " It 
 would be absurd to suppose then an action should lie 
 against parties for doing that which the legislatiu-e has 
 said they shall be obliged to do " (p). To the qualification 
 we shall have to return in the following chapter on Im- 
 possibility. 
 
 10. Otherwise the validity of a contract is generally lo. other- 
 determined by the law as it existed at the date of the at'date^f 
 
 contract. _ agreement 
 
 This is a wider rule than those we have already stated, 
 as it applies to the form as well as to the substance of the 
 contract, and not only to the c|uestion of legality but to 
 the incidents of the contract generally ((/). It is needless 
 to seek authority to show that an originally lawful contract 
 cannot become in itself unlawful by a subsequent change 
 in the law (>•). It does not seem certain, however, that Qu.vrhcn 
 the converse proposition would always hold good. Perhaps madeTn^ 
 the parties might be entitled to the benefit of a subsequent ignorance 
 change in the law if their actual intention in making the illegality, 
 contract was not unlawful. J^^^ ^^'^'' 
 
 i(n*mance 
 
 The question may be put as follows on an imaginary afterwards 
 case, which the facts of Waugh v. Morris (.s) show to be la^^^^^^ 
 quite within the bounds of possibility. A. and B. make 
 an agreement which by reason 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 perform 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 
 
 (o) See note (w), p. 34G. {>■) See Boi/cc y. Tahh, 18 "Wallace 
 
 [p) IFi/uii V. Shroushirc Tlnion (Sup. Ct. IT. S.) 546 ; s^^^rrr, p. 271. 
 
 Rys. ^ Canal Co. 5 Ex. 420, 440. (,s) L. R. 8 Q. B. 202 ; supra, 
 
 (q) Sav. Syst. ^ 392 (8. 435). p. 330.
 
 348 
 
 UNLAWFUL AGREEMENTS. 
 
 for an affirmative answer, and the analogy of WaugJi v. 
 Morris (/), where the court looked to the actual know- 
 ledge and intention of the parties at the time of the con- 
 tract, is also in its favour. 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 objec- 
 tion a.nd valid as a conditional contract (n) : unless, indeed, 
 the thing were of such a kind that its becoming lawful 
 could not be properly or seriously contemplated (^r). 
 
 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. Immediate object of agreement unlawful. Knowledge 
 of either or both parties is immaterial (//) : except, perhaps, 
 where the agreement is made in good faith and in ignor- 
 ance 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 state of things ceases to 
 exist in time for the agreement to be lawfully performed 
 according to the original intention. 
 
 /3. A. makes an agreement with B. the execution of 
 which would involve 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 com- 
 pelled to perform it or may be restrained {z) from per- 
 
 [t] L. R. 8 Q. B. 202. 
 
 (m) Taylor v. Chichester df- Mid- 
 hurst Ity. Co. L. R. 4 H. L. G28, 
 640, 645 ; cp. Mayor of Korivich v. 
 Norfolk My. Co. 4 E. & B. 397, 24 
 L. J. Q. B. 105, snpra, \). 23b. 
 
 (./•) Cp. D. 18. 1. dc ctmt-. cniiit. 
 34 § 2 (PauluN). Liborum lioiiiiuem 
 Bcientcs cmerc uou posBumus ; scd 
 
 nee talis cmptio aut stipiUatio ad- 
 mittenda est : cum sci-vies crit, 
 qiiamvis dixerimiis, f utiu'as res emi 
 po.sse ; uec euiin fas est eiusmodi 
 casus oxspcctarc. 
 
 (//) A stroiij^ illustration of this 
 ■will bi^ found in li'ilkinson v. Lou- 
 domaek, 3 M. i*^ S. 117. 
 
 (2) Jo7us V. North, I'J Eq. 426.
 
 KNOWLEDGE OF PARTIES. 349 
 
 formiug- it. "We may say if wo like that 13. is deemed to 
 warrant that he can lawfully perform his contract. 
 
 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 otherwise {a). 
 
 If A. does know it, the agreement is void. 
 
 y. 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 uulawfid or immoral pm'pose. 
 
 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. 
 
 The provisions of the Indian Contract Act on the sub- I. C. A. 
 jects comprised in this chapter will be found in the i"^^^^°{ 
 Appendix {h) . 
 
 agree- 
 ments. 
 
 (a) Beachtj v. Broicn, E. B. & E. cision on the conti-act to maiTy. 
 
 79G, 26 L. J. Q. B. 105 ; but one And cp. D. 18. 1. de cont. empt. 
 
 can never be quite safe in di-awing 34 ^ 3. 
 
 any general conclusion from a de- (b) Note I.
 
 ( 350 ) 
 
 CHAPTER VII. 
 
 Impossible Agreements. 
 
 Perform- 
 ance of 
 agreement 
 may be 
 impossible 
 in itself 
 (log-ically 
 or physi- 
 cally). 
 
 By law 
 (incon- 
 sistent 
 ■with legal 
 principle, 
 &c.). 
 
 An agreement may be impossible of performance at the 
 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 contracted for may be 
 contrary to the course of nature, " quod iiatura 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 they were both 
 dropped from a height ; or to construct a perpetual 
 motion {h). 
 
 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 secm-e a simple contract with a collateral 
 agreement that the simple contract debt should not be 
 merged (r), or should covenant to create a new manor. 
 Again, it is the general rule of law that a man may con- 
 
 {a) D. 45. 1. de V. o. 35 pr. 
 
 (i) Of these particular impossi- 
 bilities the second was supposed to 
 be an elementary fact before 
 Galileo made the experiment ; the 
 last continues to be now and tlien 
 attempted by persons who know 
 
 mechanical handicraft without me- 
 chanical principles : we choose the 
 examples as all the more instructive 
 on that account. 
 
 (f) See Owen v. Iloman, 3 Mac. & 
 G. 378, 407-411.
 
 IMPOSSIBLE AGREEMENTS. 351 
 
 tract for the sale of a specific thing wliich is not his own at 
 the time. But if the thing he ah-eady the buyer's own, or 
 cannot he the subject of private ownership at all (as the 
 site of a public building, the Crown jewels, a sliip in the 
 lioyal Navy) (d), the agreement is impossible in law. 
 
 It may be impossible in fact by reason of the existence In fact 
 of a particular state of things which makes the perform- Histeut' 
 ance of the particular contract impossible. As where the "^i*^^| P^^- 
 contract is to go to a certain island and there load a full state of 
 cargo of guano, but there is not enough guano there to [^|.^Jnof^t 
 make a cargo (r; : or a lessee covenants to dig not less than the time). 
 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 (/). 
 
 Moreover the performance of a contract which was Or may 
 possible in its inception may become impossible in either ijm^oTslble 
 the second or third of these ways. The authorities are in \^ ^^^ or 
 a somewhat fluctuating condition, and perhaps not wholly According 
 consistent. But the strong and concm-rent tendency of the *° modem 
 later cases is to avoid laying down absolute rules, and to rities the 
 give effect as far as possible to the real intention of the rules of^ 
 parties — in other words, to treat the subject as one to be eonstrxe- 
 governed by rules of construction rather than by rules of 
 law. And by this means they have done much to clear up 
 and simplify the matter for practical purj)oses, though a 
 formally accurate statement of the law may be difficult to 
 extract from them. Before proceeding to any details we 
 may at once give an outline of the results. 
 
 1. An agreement is void if the performance of it is General 
 either impossible in itself or impossible by law. ^ atemen . 
 
 When the performance of an agreement becomes im- 
 possible by law, the agreement becomes void. 
 
 {d) In Roman law ' ' quorimi com - Q pr. 
 
 mercium non sit, iit piiblica quae {(■) Hills v. Suyhrue, 15 M. & W. 
 
 non in pecunia pofiuli sed in publico 253. 
 
 usu habeantur, ut est Campus (/) Clifford v. Watts, L. E. 5 C. 
 
 Martins." D. 18. 1. decent, empt. P. 577.
 
 352 IMPOSSIBLE AGREEMENTS. 
 
 2. An agreement is not void merely by reason of the 
 performance being impossible in fact, nor does it become 
 void by the performance becoming impossible in fact with- 
 out the default of either party, unless according to the 
 true intention of the parties the agreement was con- 
 ditional on the performance of it being or continuing 
 possible in fact. 
 
 Such an intention is presumed where the performance 
 of the contract 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 im- 
 possible 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. Agree- 1. On the first and simplest rule — that an agreement 
 
 ™t^ibk in ioipossible in itself is void — there is little or no direct 
 
 itself is authority, for the plain reason that such agreements do not 
 
 but even occm' in practice ; but it is always assumed to be so. 
 
 this is Perhaps even this rule is not accurately stated as an 
 
 rule of absolute one. There is reason to think the ground of it is 
 
 construe- ^|^-g^ ^-^^^^ ^-^q impossible nature of the promise shows that 
 
 impossi- there was no real intention of contracting and therefore 
 
 which the ^0 ^^^^ agreement. It would thus be reduced to a rule of 
 
 parties as construction or presumption only, though a strong one. 
 
 able men Brett, J. Said in Cliffonl v. Wattn {g) : " I think it is not 
 
 must be competent to a defendant to say that there is no binding 
 
 presumed •'■ ./ o 
 
 to know, contract, merely because he has engaged to do something 
 
 ««Lws"^ which is physically impossible. I think it will be found in 
 
 contra- ^11 the cases where that has been said, that the thing 
 
 stipulated for was, according to the state of knowledge of 
 
 {(j) L. R. 5 C. P. p. .088.
 
 ABSOLUTE IMPOSSIBILITY. 353 
 
 the day, so absurd that the parties cannot be supposed to 
 have so contracted." The same view is also distinctly 
 given in the Digest {//). It seems to follow then that the 
 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). 
 
 On the other hand a thing is not to be deemed impos- -A. thing is 
 sible merely because it has never yet been done, or is not sibic be- 
 known to be possible. "Cases maybe conceived," says cause not 
 
 ^ ... ' ./ knoicn to 
 
 Willes, J. in the case last cited, " in which a man may he pos- 
 undertake to do that which turns out to be impossible, 
 and yet he may still be bound 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 impos- 
 sible, and yet he may have so contracted as to warrant 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 impossible ; 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 (/.) . 
 
 [h) D. 44. 7 de obi. et act. 31. Holt to be "only impossible with 
 
 Non solum stipulationes . . sed respect to the defendant's ability," 
 
 etiam ceteri quoque contractus . . though it was urged for the de- 
 
 impossibiK condicione interposita f endant that ' ' all the rye in the 
 
 aeque nullius momenti sunt, quia world was not so mvich." No 
 
 in ea re, quae ex duorum pluriumve judgment was given, the case being 
 
 consensu agitm-, omnium voluntas settled. The point that the parties 
 
 spectetur ; qiiorum procul dubio in could not have been in earnest was 
 
 huiusmodi actu talis cogitatio est, not made. 
 
 ut nihil agi existiment apposita ea {k) Prof. Sylvester and M. Peau- 
 
 condicione quam sciant esse impos- cellier respectively have resolved 
 
 sibilem. certain algebraical and geometrical 
 
 (i) In Thornhorow v. Whitacre, problems long thought insoluble. 
 Ld. Eaym. 1164, a promise to One fonn of the problem of link- 
 deliver two grains of rye on a cer- motion investigated by Peaucellier 
 tain Monday, and foui', eight, was even thought to have been 
 sixteen, &c., on alternate Mondays proved to be insoluble, 
 following for a year, was said by 
 
 P. A A
 
 354 
 
 IMPOSSIBLE AGREEMENTS. 
 
 at least if 
 it be rea- 
 sonably 
 conceiv- 
 able that 
 it should 
 turn out 
 possible. 
 
 "Practi- 
 cal impos- 
 sibility," 
 i.e. cx- 
 
 Fifty years ago it seemed impossible that we should ever 
 have direct evidence of the physical constitution of the sun 
 and fixed stars : we now have much. 
 
 It is submitted, nevertheless, that the doctrine of the 
 foregoing dicta must be limited to cases where it may be 
 within the serious contemplation of a reasonable man at 
 the time that the thing may somehow be done. For 
 example, a man agrees to make a flying machine and 
 warrants that it shall fly. This may well be a good con- 
 tract. It is true that no one has yet succeeded in making 
 such a machine. But the difficulties, great as they are, 
 consist in details ; it is a question of weight and strength 
 of materials, disposition of parts, and aj)plication of power ; 
 and these obstacles diif er not in kind from such as have 
 already been overcome in other quarters by the progress of 
 mechanical invention and workmanship. Suppose, again, 
 that a man agrees to make a flying machine and fly to the 
 moon with it. Now this involves an undertaking either 
 to live in interplanetary space, which is absolutely impos- 
 sible, or to make a habitable atmosphere between the earth 
 and the moon, which is likewise impossible, though not 
 precisely in the same manner. It is surely needless to put 
 the question whether any court could regard such an agree- 
 ment as valid, even though the parties were so ignorant as 
 to believe it possible. 
 
 This last qualification — that the parties must be pre- 
 sumed to have the ordinary knowledge of reasonable men, 
 even if the whole thing is treated as a question of inten- 
 tion — is obviously required by convenience, and is con- 
 tained by implication in the Indian Contract Act (s. 56, 
 illust. a) , which says that an agreement to discover treasure 
 by magic is void. In some regions at least of British 
 India the parties might really believe in the efficacy of 
 magic for the purpose. 
 
 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 kno-WTi to be possible,
 
 REPUGNANCY. 355 
 
 however expensive and troublesome. For some purposes treme cost 
 practical impossibility may be treated as ec[uivalent to cidty, not 
 absolute impossibility : a ship is said to be totally lost niaterial. 
 when it is in this sense practically impossible, though not 
 physically impossible, to repair her (/). But this does not 
 apply to the matter now in hand [in) . 
 
 The other conceivable cases of absolute impossibility Logical 
 may be very briefly dismissed. Inconsistent or, in the {l^lty'^'^^^e. 
 usual technical phrase, repugnant promises contained in pugnant 
 the same instrument cannot of coiu'se be enforced : this repug- 
 however is rather a case of failure of that certainty which, nancy be- 
 
 ,,. ,1 . T tweendate 
 
 as we saw m the first chapter, is one of the pnmary condi- and con- 
 tions for the formation of a contract. There may also be i^gt^u- 
 a repugnancy as to date, as if a man promises to do a thing ment. 
 on a day abeady past. Practically, however, such a re- cases only 
 pugnancy can hardly be more than apparent. Either it apparent, 
 is a mere clerical or verbal error, in which ease the Court not avoid 
 may correct it by the context (;?), or it arises from the ^^^0^^" 
 terms of the agreement being fixed before and with refer- 
 ence to a certain time but not reduced into writing and 
 executed as a written contract till afterwards. In such a 
 case it must be determined on the circumstances and con- 
 struction 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 an independent right of action. At all events it 
 cannot be treated as a condition precedent so as to prevent 
 the rest of the contract from being enforced (o). 
 
 (/) Moss V. Smith, 9 C. B. 94, 103. («) See Fitch v. Jones, 5 E. & B. 
 
 Mr. Leake's citation of this dictum 238, 24 L. J. Q. B. 293, -where a 
 
 (Digest, 682) appears to me irrele- notepayable two months after date, 
 
 Tant. and made in January, 1855, was 
 
 (m) See per MeUor, J. L. R. 6 dated by mistake 1854, but across 
 
 Q. B. 123, per Hannen, J. ib. 127. it was written "due the 4th March, 
 
 These dicta seem to go even beyond 1855." The Court held that this 
 
 what is said in the text, but are sufficiently corrected the mistake, 
 
 probably Ihnited in their true effect and might be taken as a direction 
 
 to what is here called impossibility to read 5 for 4. 
 
 in fact. {(') Hal! v. Vazcnocc, 4 East 477, 
 
 A A 2
 
 356 
 
 IMPOSSIBLE AGREEMENTS. 
 
 Promisor 
 not ex- 
 cused by 
 relutive 
 impossi- 
 bil , i. e. 
 not ha^'ing 
 the means 
 of per- 
 fonnance. 
 
 One may 
 
 warrant 
 acts of 
 third per- 
 sons, or 
 natural 
 event in 
 itself 
 possible. 
 
 Leaving, liowever, this rather barren discussion, we 
 come to a qualification, or rather explanation of more 
 practical importance, 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. " Impos- 
 sibility 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 debtor if he cannot get the money 
 he has bound himself to pay " (;;). Therefore a man is not 
 excused who chooses to make himself answerable for the 
 acts or conduct of third persons, though beyond his control ; 
 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 {q), and that "if a man is bound to another in 
 20/. on condition quod pliiria debet plne>'e eras, there si 
 pliivia non liluit 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 condition that the Pope shall be here at West- 
 minster to-morrow, then if the Pope comes not there is 
 no default on the defendant's part, and yet he has forfeited 
 the obligation" (r). " Grenerally if a condition is to be 
 
 where the Court agreed to this 
 extent, but differed on the other 
 question. 
 
 ip) Savigny, Obi. 1. 384. 
 
 Ifl) By Maule, J. Canham v. 
 Barry, 15 C. B. at p. GI9 ; 24 L. J. 
 
 C. P. at p. 106. Per Cur. Baihj v. 
 Dc Cresplgny, L. E. 4 Q. B. at 
 p. 185. But qti. would not such a 
 contract be a mere wager in almost 
 any conceivable cu'cuni stances ? 
 (?•) Per Brian, C. J., Mich. 22 Ed.
 
 IMPOSSIBILITY IN LAW. 357 
 
 performed by a stranger and he refuses, the bond is forfeit, 
 for th^ obligor took ujdou himself that the stranger should 
 doit"(.s). "If the condition bo 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 that he must procure I. S. to go thither and 
 ride with him at his peril " (f). Where the condition of a 
 bond was to give such a release as by tho Court should 
 be thought meet, it was hold to be the obligor's duty to 
 procure the judge to devise and direct it {u). 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 jirocure the lessor's consent (x). But 
 on the sale of shares in a company, on the Stock Exchange 
 at all events, the vendor is not bound to procm-e the 
 directors' assent, though it may be required to complete 
 the transfer {//) , and it seems at least doubtful whether he 
 is so bound in any case (;;) . 
 
 Where an agreement is impossible by law there is no Agree- 
 doubt that it is void : for example, a promise by a servant possible in 
 to discharge a debt due to his master is void, and there- law is 
 fore no consideration for a reciprocal promise (a) ; 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 dis- 
 charged. A good instance of this is Bailt/ v. Be Ores- Whenper- 
 pignij {!)). There a lessor covenanted with the lessee that tecomea 
 
 4. 26. The whole discussion there J. Q. B. 279, 29 L. J. Q. B. 115. 
 is cm-ious, and well worth perusal (:;) Lindley, 1. 703, 712, not 
 
 in the book at large. allowing IViUcinsm v. Lloyd, 7 Q. 
 
 (.s) Ro. Ab. 1. 452, L. pi. 6. B. 27, to be now law. 
 
 \t) Shepp. Touchst. 392. {a) Harvey v. Gibbons, 2 Lev. 161. 
 
 (m) Lamb''s ca. 5 Co. Rep. 23 b. It is called an illegal consideration, 
 
 \x) Lloydy. Crispe, 5 Taunt. 249 ; but such verbal confusions are con- 
 
 cp. Canliam v. Barry, 15 C. B. 597. stant in the early reports. 
 
 {>j) Stray v. Russell, Q. B. and {b) L. R. 4 Q. B. 180. 
 
 Ex. Ch. 1 E. & E. 888, 91G, 28 L.
 
 358 
 
 IMPOSSIBLE AGREEMENTS. 
 
 impossible 
 by law, 
 promisor 
 is excused. 
 Baily v. 
 De Cres- 
 pigny. 
 
 Buying 
 one's own 
 property. 
 
 neitlier lie nor his heirs nor his assigns would allow any 
 building (with certain small exceptions) on a piece d land 
 of the lessor's fronting the demised premises. 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 cove- 
 nant ; but the Court held that he was discharged by the 
 subsequent Act of Parliament, 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 com- 
 pulsory 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 material that the company was 
 only empowered by Parliament, not required, to build a 
 station at that particular place (c). If a subsequent Act 
 of Parliament making the performance of a contract 
 impossible were a private Act obtained by the contracting 
 party himself, he might perhaps remain bound by his 
 contract as if he had made the 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 ) . 
 
 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 con- 
 sideration. 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 
 
 (c) L. R. 4 Q. B. 18G-7. 
 {d) Jhotrn v. Mat/or of London, 9 
 C. B. N. S. 72G, 30 L. J. C. P. 225, 
 
 in Ex. Ch. 13 C. B. N. S. 828, 31 
 L. J. C. P. 280.
 
 IMPOSSIBILITY IN LAW. 359 
 
 form, lias the cliaracter of a compromise. There remain 
 only the cases in which the parties act under a common 
 mistake as to their respective rights. The presence of the 
 mistaken assumption is the central point on whioli the 
 whole tranaction turns, and is decisive in fixing its true 
 natiu-e. 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 sale of some- 
 thing which the seller has not at the time is perfectly 
 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 aj^pointed for completing the 
 contract. 
 
 The general principles above considered are very well Exposi- 
 brought together in the Digest, in a passage from a work game 
 of Venuleius on Stipulations. "lUud inspiciendum est, prmciplog 
 an qui centum dari promisit confestim teneatur, an vero law. 
 cesset obligatio donee pecuniam conferre posset. Quid 
 ergo si neque domi habet neque inveniat creditorem ? 
 Sed haec recedunt ab impedimento naturali et respiciunt 
 ad facultatem dandi (e). . . . Et generaliter causa 
 difficultatis ad incommodum promissoris, non ad impedi- 
 mentum stipulatoris pertinet [/. e. inconvenience short of 
 impossibility 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, <?. (j. the sale of a public building, 
 is equivalent to a natm-al impossibility. ..." Nee ad 
 rem pertinet quod ius mutari potest et id quod nunc 
 impossibile est postea possibile fieri ; non enim secundum 
 futuri temporis ius sed secundum praesentis aestimari 
 
 (e) For the explanation of a not here, and is omitted in our text, see 
 very clear illustration which follows Sav. Obi. 1. 385,
 
 360 
 
 IMPOSSIBLE AGREEMENTS. 
 
 2. Per- 
 formance 
 impossible 
 in fact : 
 no excuse 
 where con- 
 tract is 
 absolute. 
 
 A fortiori 
 where 
 only in- 
 convenient 
 or imprac- 
 ticable. 
 
 debet stipulatio" (/) : (as if it should be contended that a 
 covenant to create a new manor is not a covenant for a 
 legal impossibility, because peradventiu'e the statute of 
 Quia emptores may be repealed.) All this is in exact 
 accordance with English law. 
 
 2. We now come to the cases where the performance of 
 an agreement is not impossible in its own nature, but 
 impossible in fact by reason of the particular circum- 
 stances. It is a rule admitted by all the authorities, and 
 supported by positive decisions, that impossibility of this 
 kind is in itself no excuse for the failure to perform an 
 unconditional {g) contract, whether it exists at the date of 
 the contract, or arises from events which happen after- 
 wards (/?). Thus an absolute 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 {i) : 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 com-se (/r) . Still less will 
 unexpected difficulty or inconvenience short of impossi- 
 bility serve as an excuse. Where insured premises were 
 damaged by fire and the insurance company, having an 
 option to pay in money or reinstate the building, elected 
 
 (/) D. 45 1. dev. o. 137. ^§4-6. 
 
 [g] It may be shown, and not 
 necessarily by the presence of ex- 
 press saving words, that the fact 
 or event was outside the risks un- 
 dertaken by the promisor : in other 
 words that the contract was not 
 unconditional. With all respect 
 for the zeal and learning- with 
 which Dr. Wharton (on Contracts, 
 ch. 14) has collected opinions and 
 illustrations from the civil law, I 
 doul)t whether anything is to be 
 gained by introducing here distinc- 
 tions founded on casus and culpa. 
 
 (A) Atkinson v. Ritchie, 10 East, 
 rj30. 
 
 {i) milsv. Sughrue, lo JM. & W. 
 2.53. This case turned in part on 
 the unusual incident of the charter- 
 party providing that the cargo was 
 to be found by the o^vner. ' ' He 
 is to receive freight at a high rate, 
 and it looks very much like a con- 
 tract for supplying guano at that 
 price : " Parke, B. at p. 261. And 
 see Anson, 313, 314. 
 
 (/•) Kenron v. Pearson, 7 H. & 
 N. 386, 31 L. J. Ex. 1. So where a 
 given number of days is allowed to 
 the charterer for unloading, he is 
 held to take the risk of any ordinary 
 vicissitudes which may cause delay : 
 Thiis V. Ihjcrs, 1 Q. B. D. 244.
 
 PRACTICAL IMPOSSIBILITY. 361 
 
 to reinstate, but before they had done so the whole was 
 pulled down by the authority of the Commissioners of 
 Sewers as being in a dangerous condition ; 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 (/), So again if a man contracts to do 
 work according to orders or specifications given or to be 
 given 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. Jo/in's College (Oxford) (/;?) 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 de- 
 fendants 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 de- 
 fendants which were so mixed up ^vith the original work 
 that it became impossible to complete the whole within 
 the- specified time. In Thorn v. 3I(ujor of London (n) 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 works 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 diff'erent way. 
 
 {!) Brown v. lioi/al Insurance Co. sible by the act of the law. 
 
 1 E. & E. 8.53, 28 L. J. Q. B. 275, (v«) L. R. 6 Q. B. llo, 124. 
 
 diss. Erie, J. who thought such a («) L. R. 9 Ex. 163, in Ex. Ch. 
 
 reinstatement as was contemplated 10 Ex. 112, affd. in H. L. 1 App. 
 
 by the contract (not being an en- Ca. 120. 
 tire rebuilding) had become irapos-
 
 362 IMPOSSIBLE AGEEEMENTS. 
 
 It was held that no warranty could be implied on the 
 part of the corporation that the plans were such as to 
 make the work in fact reasonably practicable, and that 
 the plaintiff could 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 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 admitted law that generally where there is a 
 positive contract to do a thing not in itself unlawful, the 
 contractor must perform it, or pay damages for not doing 
 it, although in consequence of unforeseen accidents the 
 performance of his contract has become unexpectedly 
 burdensome or even impossible (o). 
 
 Prohi- Where the performance of a contract becomes imprac- 
 
 forciqji ticable by reason of its being forbidden by a foreign law, 
 ^^^' ^.}?^~ it is deemed to have become impossible not in law but in 
 
 possibility , •11 
 
 in fact. fact. In Barker Y. Hodgson (j)) intercourse with the port 
 to which a ship was chartered was prohibited on account 
 of an epidemic prevailing there, so that the freighter was 
 prevented 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 (q). 
 But where the effect of a foreign law is to prevent both 
 parties from performing their respective parts of the con- 
 tract, both are excused (r). 
 
 (o) Tai/lor v. Caldwell, 3 B. & S. (/;) 3 M. & S. 267, cp. Jacobs v. 
 
 82G, 833, 32 L. J. Q. B. 1G4, 16G. Credit Zi/onnais, C. A., 12 Q. B. 
 
 This rule does not extend, how- D. 589, where the exportation of 
 
 ever, beyond express contracts. An the cargo contracted for was 
 
 undertaking to be answeruljle for forbidden by local law. 
 
 delay caused by ^'Js w?rtio>' cannot be {q) Spence v. Chodicick, 10 Q. B. 
 
 made part of an implied contract: 517. 
 
 Ford V. Cotesworth (Ex. Ch.) L. R. (r) Cumiingham v. Dunn (C.A.), 
 
 5 Q. B. 544. 3 C. P. D. 443.
 
 SUPERVENING ACCIDENT. 363 
 
 Certain cases, of which Paradine v. Jane (s) is the ObHga- 
 leading" one, are often referred to upon this head. The tenant to 
 effect of them is that the accidental destruction of a lease- P'^y rent 
 hold building, or the tenant's occupation being otherwise demised 
 interrupted by inevitable accident, does not determine or premises 
 
 "^ , , . . accident - 
 
 suspend the obligation to pay rent either at law or in ally de- 
 equity (/). In these cases, however, the performance of No'im-' 
 the contract does not really become impossible. There is possibility 
 obviously nothing impossible in the relation 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 conveyance. There is a common mis- 
 fortune depriving both parties to some extent of the benefit 
 of theii' 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 per- 
 forming 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 impossible 
 in any other sense than it renders the payment of any other 
 debt to any other creditor impossible [u). It is a personal 
 and relative " causa difficultatis ; " which, as we have seen, 
 is irrelevant 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. CakhccU, which we shall immediately 
 consider. Only to this limited extent is there any precise 
 resemblance to the wider class of cases where the per- 
 formance of a contract becomes in fact impossible. The 
 
 («) Aleyn 26. L. J. Q. B. 168. 
 
 [t) Leeds V. Chcethai)!, I Sim. 146, (ii) See per Lord Blackburn 2 
 
 Loft V. Dennii, 1 E. & E. 474, 28 App. Ca. 770.
 
 3G4 IMPOSSIBLE AGREEMENTS. 
 
 but a true analogy is in the nature of the question which the 
 
 q^stion ^^^^® ^^ ^^^ ^^^ ^^ (lecicle : namely, whether the contract is 
 viz., whe- in substance and effect as well as in terms unconditional 
 contract is and without any implied exception of inevitable accident, 
 really un- -yy-g gi^aH gee that this is always the real question. The 
 
 condi- _ , -^ ^ / \ •; 
 
 tional. answer being here determined by ParacUne v. Jane {x), it 
 was held in the later cases (y) (about which difficulties are 
 sometimes felt, but it is submitted without solid reason) 
 that it is not affected by the landlord having protected 
 himself by an insurance, which is a purely collateral con- 
 tract of indemnity. There might indeed very well be a 
 further 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 pro- 
 bably without being put into writing [z) . On the other 
 hand it is often a term of the lease that the tenant shall 
 keep the premises insured and that in ease 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 appor- 
 tioned 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 [o). 
 
 Contra ^ho rule or presumption might, of course, be the other 
 
 law. way, as it is by the civil law, where it is an incident of the 
 
 contract to pay rent that it is suspended by inevitable 
 accident destroying or making useless the thing demised. 
 The particular event on which Pamdine v. Jane was 
 decided, eviction by alien enemies (/>), is expressly dealt 
 
 {x) Aleyn 26. Adcane, 8 Ch. 756, Morgan v. Grif- 
 
 \y) Leeds Y. Cheethani, 1 Sim. 146, fith, L. R. 6 Ex. 70, Awjelly. Duke, 
 
 Lofft V. Dennis, 1 E. & E. 474, 28 L. 11. 10 Q. B. 174. 
 
 L. J. Q. B. 168. {a) Reynard v. Arnold, 10 Ch. 
 
 (z) Parol collateral aji^recnients 38(''. 
 
 have been held j^-'ood in Ersl;inc v. {V) Si inciu'siis hostium fiat, D.
 
 ACCIDENTS NOT CONTEMPLATED RY CONTRACT. 365 
 
 with in this manner. The law of Scotland follows the 
 civil law (r), 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 sub- 
 stantial matter of the demise " being by fire or other 
 inevitable accident destroyed or made incapable of bene- 
 ficial occupation {d). Either way the rule is subject to 
 any special agreement of the parties, and it is but a 
 question which, in the absence of such agreement, 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 bm-nt out 
 plot of ground. It is hard for a landlord, according to the 
 Roman 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. 
 
 So far the general rule. The nature of the exceptions Excep- 
 is thus set forth by the judgment of the Court in Bail// v. ccT^ah^ 
 De Cresjngni/ : — cases of 
 
 subse- 
 " There can be no doubt that a man may by an absolute contract bind quent 
 himself to perform things -vrhich subsequently become impossible or to uppossi- 
 pay damages for the non-performance, and tliis 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 ia of such a character that it cannot reasonably 
 be supposed to have been in the contemplation of the contractmg parties 
 when the contract was made, they will not be held bound by general 
 words which, though large enough to include, were not used with refer- 
 ence 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 uiacciu-ate 
 
 19. 2. locati conducti, 15 § 2 ; or non fuisset, nihilomiuus debere, D. 
 
 even reasonable fear of it : Si qiiis cod. tit. 27 § I. 
 
 timoris causa emigrasset . . . re- (c) Per Lord Campbell, ZoJ^'t v. 
 
 spondit, si causa fuisset ciu" peri- Dennis, siqjra ; Bell, Princi^jles, \ 
 
 culum timeret, quam^is periculum 1208. 
 
 vere non fiiisset, tamen non debere [d) 23 & 24 Vict. c. 154, s. 40. 
 
 mercedcm ; sod si causa timoris iusta
 
 366 IMPOSSIBLE AGREEMENTS, 
 
 expression, because, where it is an answer to a complaint 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 contract "(e). 
 
 Events _ This (as well as the following context, which is too long 
 the con- ^ ^0 quote) well shows the modern tendency, to which we 
 templation j^aye abeady called attention, to reduce all the rules on 
 conti-act. this Subject to rules of construction. By the modern 
 understanding of the law we are not bound to seek for a 
 general definition of "the act of Grod" or vis niaior (/), 
 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 does not include every inevi- 
 table accident ; contrary winds, for example, 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 over- 
 whelming (g). 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, is the foundation 
 of the whole system of life annuities and life insurance. 
 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 
 
 (e) L. R. 4 Q. B. 185. 19. 2. locati 25 § 6. 
 
 (/) Both these tenns are classi- {(/) Per Martin, B. Oakley v 
 
 cal: "Vis maior, quam Graoni Poytsmoiith i^- Ei/dc Steam Faclcet Co. 
 
 Gtoi; 0/av appellant." Gains in D. 11 Ex. G!8.
 
 DESTRUCTION OF SUBJECT-MATTER. 367 
 
 against its breaking out and for extinguisliing it when it 
 does break out. We cannot arrive, then, at any more 
 distinct concejition than this : An event which, as hctween 
 the parties and /or the purpose of the 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 {h). 
 
 We may now proceed to tlio specific classes of excep- 
 tional cases. 
 
 oc. Where the performance of the contract depends on (f) Where 
 
 ■^ -^ the I^GF" 
 
 the existence of a specific thing. The law was settled on formance 
 this head by Taylor v. Culdiccll {/), where the defendants o^^^^'j^^e^^ 
 agreed to let the plaintiffs have the use (/) of the SmTcy existence 
 Gardens and Music-hall on certain days for the pm*pose cific thing-. 
 of giving entertainments. Before the first of those days pYl*^^iV 
 the music-hall was destroyed by fire so that the entertain- 
 ments could not be given, and without the fault of either 
 party. The Court held that the defendants were excused, 
 and laid down the following principle : " Where fi'om the 
 nature of the contract it appears that the parties must 
 from the beginning have known that it could not be 
 fulfilled unless, when the time for the fulfilment of the 
 contract arrived, some particular specified thing continued 
 to exist, so that when entering into the contract they must 
 have contemplated such continued existence as the foun- 
 dation of what was to be done ; there in the absence of any implied 
 express or implied {k) warranty that the thing shall exist, condition 
 the contract is not to be considered a positive contract, but fiuthcr 
 subject to the implied condition that the parties shall be ance^ir* 
 excused in case, before breach, performance becomes im- excused 
 
 {h) As to what is such an "act of 164. There were words sufficient 
 
 God " as will make an exception to for an actual demise, but the Coxu't 
 
 a duty imposed not specially by held that the manifest general in- 
 
 contract but by the general law, tention prevailed over them. 
 see ]}\^lc/iols \. Marsland,2 ILx.D.l, [k) That is, understood in fact 
 
 Nugent v. Smith, 1 C. P. D. 423, between the parties: the whole 
 
 444, both in C. A. scope of the passage being that it 
 
 (i) 3 B. & S. 826, 32 L. J. Q. B. is not to be implied by law.
 
 368 IMPOSSIBLE AGKEEMENTS. 
 
 the tiling possible from the perishing of the thing without default 
 
 without ^^ t^® contractor." And the following authorities and 
 
 the party's analogies were relied upon : — 
 
 default. The civil law, which implies such an exception in all 
 
 cases of obligation cle ccrfo corpore (/). 
 
 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 pro- 
 perty 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 
 cases, though the promise is in words positive, the excep- 
 tion 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 The same principle was followed in Appkhi/ v. Meyers (m) . 
 
 V. Meyers. rp]^gj,g ^]^q plaintiffs agreed with the defendant to erect an 
 engine and other machinery on his premises, at certain 
 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 eifect to be im- 
 plied in the nature of the contract. In the Exchequer 
 
 (/) D. 45. 1. de V. o. 23, 33. Cp. desiit. Pothier, Obi. § 149, ib. Part 
 
 also D. 46. 3. de solut. 107. Ver- 3, eh. 6, §^ G49, sqq., and Contrat 
 
 borum obligutio aut naturaliter re- de Ventc, ^ 308, sqq. translated in 
 
 solvitiu' aut civilitcr ; naturaliter, Blackburn on Sale, 173. 
 vcluti solutionc, aut cum res in [m) L. K. 2 C. P. 651, in Ex, 
 
 stipulationem dcducta sine culpa Ch. revg. s. c. 1 C. P. 615, 
 proniissoris in rebus humanis esse
 
 DESTRUCTION OF SUKJECT-MATTEK. 369 
 
 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 re- 
 covered 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 events continue so fit. " Where, 
 as in the present case, the premises are destroyed without 
 fault on either side, it is a misfortune equally affecting 
 both parties, excusing both from further performance of 
 the contract, but giving a cause of action to neither." 
 Another argument for the plaintiffs was that the property 
 in the work done had passed to the defendant and was 
 therefore at his risk («) . To this the Court answered that 
 it was at least doubtful whether it had ; and even if it had, 
 the contract was still that nothing should be payable unless 
 and until the whole work was completed. 
 
 Where there is an entire contract for doing work upon Saving as 
 specific property, as fitting a steamship with new machinery, j^^™^^ of" 
 for a certain price, but the price is payable by instalments, payment 
 
 till' GO. civ 
 
 and the ship is lost before the machinery has been earned, 
 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 re- 
 covered back (o) . 
 
 (w) In the case cited in argument main d'ceuvre ctaient fournis par 
 
 from Dalloz, Jui-isp. Gen. 1861, pt. I'entrepreneiiretquis'incorporaient 
 
 1. 105, (Jltemin dc fer du Bauphinc au sol du proprietaire, " as exclud- 
 
 V. Clet, where railway works in ing the application of articles 
 
 com'se of construction had been 1788-1790 of the Code Civil, which 
 
 spoilt by floods, theCom-tof Cassa- lay down a rule similar to that of 
 
 tion relied on the distinction that the prmcipal case, 
 they were not such as remained in (o) AykjIo- Egijptian Navigation 
 
 the contractor's disposition till the Co. v. Rennie, L. E. 10 C. P. 271. 
 
 whole was finished, but " de con- It would seem the same on prin- 
 
 structions dout les materiaux ct la ciple where the whole jirice is paid 
 
 r. B B
 
 370 IMPOSSIBLE AGREEMENTS. 
 
 Contract The Same doctrine lias been applied where the subject- 
 specific^^^ matter of the contract is a future specific product or some 
 product, 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 Aiigust 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 par- 
 ticular land " . . . " and therefore there was an implied 
 term in the contract that each party should be free if the 
 crop perished" {p). 
 Impossi- These are all cases of the performance becoming im- 
 datVof possible by events which happen after the contract is 
 contract inade. But sometimes the same kind of impossibility 
 of things results from the present existence of a state of things not 
 templated Contemplated by the parties, and the performance is excused 
 by parties, to the same extent and for the same reasons as if that 
 state of things had supervened. Where this impossibility 
 consists in the absolute non-existence of the specific pro- 
 perty or interest in property which is the subject-matter 
 of the agreement, it is evident that the agreement would 
 not have been made unless the parties had 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, it is the same as if it had been in 
 its own nature impossible. Here, then, the agreement of 
 the parties is induced by a mistaken assumption 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 assigned as the ground on which the agreement 
 
 in advance. See Vangerow, Pand. {p) Hoicell v. Coupland, L. R. 9 
 
 3. 234 sqq. ; and the cases on con- Q. B. 462, 46G, affd. in C. A. 1 Q. 
 
 tractH, personal service, and up- B. D. 258, see -pev Cleasby, B. at 
 
 prenticeship cited farther on. p. 263.
 
 KON-EXISTENCE OF SUBJECT-MATTER. 371 
 
 is void, Aud here likewise, according to our authorities, 
 mistake seems to be the ground assigned by preference. 
 It is not so much the impossibility of performance that is 
 regarded as the original non-existence of the state of 
 things assumed by the contracting parties as 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 contemplation of the parties (q). If it 
 appears that they conceived and 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 the heads 
 •of equity under which the Com-t 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 natural 
 or scientifically admissible meaning in order to support 
 the jurisdiction of the Court in a great variety of cases 
 where the procedm-e 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. 
 
 In the leading case of Couturier y. Ilastie{r), decided Sale of 
 by the House of Lords in 1856, a bought note had been yiously ^^' 
 signed for a cargo of Indian corn described as " of fair lo^*- 
 average quality when shipped from Salonica." Several 
 days before the sale, but unknown to the parties, the cargo, 
 
 (q) See especially Couturier v. or other state of mind of the parties 
 
 Eastie, 5 H. L. C. 673. Savigny makes no difference. It is at least 
 
 (Syst. 3. 303) is decidedly against doubtful, as we shall have oppor- 
 
 error being considered the ground tuidties of seeing", •whether this 
 
 of nullity in these cases : but chiefly position be true in EngKsh law. 
 because, as he holds, the knowledge (r) 5 H. L. C. 673. 
 
 B B 2
 
 372 
 
 IMPOSSIBLE AGREEMENTS. 
 
 Cove- 
 nants to 
 work 
 mines, or 
 to raise 
 minimum 
 amount. 
 
 Cliftord i\ 
 Watts. 
 
 then on the voyage, was found to be so much damaged 
 from heating that the vessel put into Tunis, where the 
 cargo was sold. The only question seriously disputed was 
 what the parties really meant to deal with, a cargo supposed 
 to exist as such, or a mere expectation of the arrival of 
 a cargo, subject 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 contemplated, those who sold and 
 those who bought, was that there was an existing some- 
 thing to be sold and bought." No such thing existing, 
 there was no contract which could be enforced. 
 
 When a lessee under a mining lease covenants in un- 
 qualified terms to pay a fixed minimum rent, he is boimd 
 to pay it both at law (s) and in equity (t), though the 
 mine may turn out to be not worth working or even un- 
 workable. But it is otherwise with a covenant to work 
 the mine or to raise a minimum amount. In the case in 
 equity last referred to {t), 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 restrained from suing on 
 the covenant to work it on the terms of the lessee paying 
 royalty on the estimated quantity of coal which remained 
 unworked. A similar question was fully dealt with in 
 Cliffords. Watts {h). The demise was of all the mines, 
 veins, &c., of clay on certain land. There was no cove- 
 nant by the lessee to pay any minimum rent, but there 
 was a covenant to dig in every year of the term 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 {x), to the eifect 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 
 
 (s) Marquis of Bute v. Thompson, 
 13 M. & W. 487. 
 
 U) Rldgicay v. Sneyd, Kay, G27. 
 (m) L. R. 5 C. P. 577. 
 
 {x) It was pleaded as an equit- 
 able plcii, but the Court treated the 
 defence as a lethal one.
 
 EFFECT OF EXPRESS EXCEPTIONS. 373 
 
 covenant had always been impossible, and that at the date 
 of the demise the defendant did not know and had no 
 reasonable 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 warrant that clay should be found : and " the result of 
 a decision in favour of the plaintiff would be to give him 
 a fixed minimum rent when he had not covenanted for 
 
 it"(y). 
 
 In certain kinds of contracts, notably charter-parties, it Analogous 
 is usual to provide by express exceptions for the kind of express 
 events we have been considering. It is not within our exceptions 
 province to enter upon the questions of construction which mercial 
 arise in this manner, and which form important special contracts. 
 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 impos- 
 sible of performance by an excepted risk, the parties are 
 also discharged from performing any other part which 
 remains possible, but is useless without that which has 
 become impossible {z). It is a general principle that a 
 
 {«/) Per Montague Smith, J. at Coiu't of Common Pleas as consti- 
 
 p. 587. Cp. and dist. Jervis v. tuted in 1870 would scarcely have 
 
 Tomkinson, 1 H. & N. 195, 26 L. J. an-ived, on the facta of SiUs v. 
 
 Ex. 4 1 , where the covenant was not Sxffhme, at the same result as the 
 
 only to get 2000 tons of rock salt Court of Exchequer in 1847 : but 
 
 per annum, but to j^ay 6d. a ton there is no actual conflict, as the 
 
 for every ton short, and the lessees question in every case is of the true 
 
 knew of the state of the mine when intention of the contract taken as a 
 
 they executed the lease. As to the whole, and the contracts in these 
 
 relation of Clifford v. Watts to EiUs cases are of quite different kinds. 
 
 V. Sughrue (pp. 351, 360, above), it (z) Geipel v. Smith, L. R. 7 Q. B, 
 
 is jDcrhaps enough to say that the 404, 411.
 
 374 
 
 IMPOSSIBLE AGREEMENTS. 
 
 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 («) : 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 
 performance after a delay unreasonable in itself, though 
 due to 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 pre- 
 vented from treating it as dissolved {b). 
 
 (3) Where 
 perform- 
 ance de- 
 pends on 
 life or 
 health of 
 a person. 
 Implied 
 condition 
 that the 
 person 
 shall re- 
 main 
 alive and 
 well 
 enough 
 for the 
 purposes 
 of the 
 contract. 
 
 ^. 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" (c). Conversely, if the master 
 dies dm-ing the service, the servant is thereby discharged, 
 and cannot treat the contract as in force against the 
 master's personal representatives (r/). The passage 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 
 
 (a) The Teutonia, L. R. 4 P. C. 
 171, 182. Cp. Jones v. Holm, L. R. 
 2 Ex. 335. 
 
 {b) Jackson v. Union Marine In- 
 surance Co. in Ex. Ch. L. R. 10 
 C. r. 125, 141 Hfjq. 
 
 (c) Pollock, C. B. in Hall v. 
 Wright, E. B. & E. at p. 793, 29 
 L. J. Q. B. at p. 51. 
 
 {d) Farrow v. Wilson, L. R. 4 
 C. P. 744.
 
 PERSONAL SERVICES. 375 
 
 paint a picture within a reasonable time, would in my judg- 
 ment 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 Grod, 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. Cahhvell {supra, p. 3G7), where indeed it was recognized 
 as correct, and it has since been established by direct deci- 
 sions. In Boast v. Firth [e) a master sued the father of Boast v. 
 his apprentice on his covenant in the ajiprenticeship 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 permanent illness arising after 
 the making of the indenture. The Com-t 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 Grod should be an 
 excuse for non-performance " (/), and that the defence was 
 a good one. In Rohinson v. Davison (g) the defendant's Robinson 
 wife, an eminent pianoforte player, was engaged to play g'^j^ ^^^' 
 at a concert. When the time came she was disabled 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 smu under a direction to the 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 postpone- 
 ment 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 
 
 (e) L. R. 4 C. P. 1. p. 7. 
 
 (/) Per Montague Smith, J. at (ff) L. R. 6 Ex. 269.
 
 376 
 
 IMPOSSIBLE AGREEMENTS. 
 
 The 
 
 contract 
 becomes 
 void, not 
 only 
 voidable 
 at option 
 of party 
 disabled. 
 Seinble, 
 notice 
 should be 
 given to 
 the other 
 party. 
 
 Hall V. 
 Wright : 
 anomalous 
 decision 
 on the 
 contract 
 to maiTy : 
 
 contract to perform a service which no deputy could per- 
 form, 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 in- 
 capacity either of body or mind in the performer, without 
 default on his or her part, is an excuse for non-perform- 
 ance" (A). The same judge also observed, in effect, that 
 the contract becomes, not voidable at the option of the 
 party disabled from performance, 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 has since been established by a direct 
 decision (i). No positive opinion was expressed 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 {h). 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 shows, if express authority be 
 required for it, that it matters not whether the disability 
 be permanent or temporary, but only whether it is such as 
 to prevent the fulfilment of the particular contract. 
 
 In the earlier and very peculiar case of Hall v. Wright (J) 
 the question, after some critical discussion of the pleadings, 
 which it is needless to follow, came to this : " Is it a term 
 in an ordinary agreement to marry, that if a man from 
 bodily disease cannot marry without danger to his life, and 
 
 (A) L. R. 6 Ex. at p. 277. 
 
 (i) Foussard v. Spiers ^'- Fond, 1 
 Q. B. D. 410. 
 
 {k) Cp. the doctrine as to giving 
 notice of abandonment to under- 
 
 ■RTiters, RanJcin v. Fotter, L. E. 6 
 H. L. 83, 121, 157. 
 
 [l) E. B. &E. 746, 29L. J. Q.B. 
 43.
 
 PERSONAL SERVICES. 377 
 
 is unfit for marriage from the cause mentioned at the time illness 
 aiipoiuted, he shall be excused marrying then?" {m) or in for mar? 
 other words: "Is the continuance of health, that is, of such "^^of^ °o 
 a state of health as makes it not improper to marry," an 
 implied condition of the contract ? (n) . The Court of Ex- 
 chequer ChaniLer decided hy four to three that it is not, 
 the Court of Queen's Bench having been equally divided. 
 The majority of the judges relied upon two reasons : that 
 if the man could not marry without danger to his life, that 
 did not show the performance of the contract to be im- 
 possible, but at most highly imprudent ; and that at any 
 rate the contract could be so far performed as to give the 
 woman the status and social position of a wife. It was not 
 disputed that the contract was voidable at her option. 
 " The man, though he may be in a bad state of health, 
 may nevertheless perform his contract to marry the woman, 
 and so give her the benefit of social position so far as in 
 his power, though he may be unable to fulfil all the obliga- 
 tions of the marriage state ; and it rests with the woman 
 to say whether she will enforce or renounce the con- 
 tract" (o). As to the first of these reasons, the question 
 is not whether there is or not an absolute impossibility, 
 but what is the true meaning of the contract ; and in this 
 case the contract is of such a kind that one might expect 
 the conditions and exceptions implied in strictly personal 
 contracts to be extended rather than excluded (p). As to 
 the second reason, it cannot be maintained, except against 
 the common imderstanding of mankind and the general 
 treatment of marriage by English law, that the acquisition 
 of legal or social position by marriage is a princijial or in- 
 dej)endent object of the contract. Unless it can be so con- 
 
 (»)) Per Bramwell, B. 29 L. J. {p) It lias long been settled that 
 
 Q. B. 45. the contract to marry is so far per- 
 
 (n) Per Pollock, C. B. ib. 52. sonal that executors, in the absence 
 
 (o) The case is thus explained of special damage to the personal 
 
 and distinguished by Montague estate, cannot sue upon it. Cham- 
 
 Smith, J. in ^oasi V. i'«-</(, L. K. 4 berlain v. Williamson, 2 M. & S. 
 
 C. P. 8. 408.
 
 378 
 
 IMPOSSIBLE AGREEMENTS. 
 
 Limita- 
 tion of tlie 
 rule to 
 contracts 
 for actual 
 personal 
 services. 
 
 sidered, the reason cannot stand with the principle affirmed 
 in Gcipel v. Smith (q), that when the main part of a 
 contract has become impossible of performance by an ex- 
 cepted cause, it must be treated as having become im- 
 possible altogether. The decision itself can be reviewed 
 only by a com't of ultimate appeal; but it is so much 
 against the tendency of the later cases that it is now of 
 little or no authority beyond the point actually decided, 
 which for the obvious reasons indicated in some of the 
 judgments is not at all likely to recur (r). 
 
 The rule now before us applies only to contracts for 
 actual personal services. A contract of which the perform- 
 ance depends less directly on the promisor's health is not 
 presumed to be conditional. If a man covenants to insure 
 his life within a certain time, he is not discharged by his 
 health becoming so bad before the end of that time as to 
 make his life uninsm^able (s). It has never been supposed 
 that the current contracts of a manufacturing firm are 
 affected in law by the managing partner being too ill 
 to attend to business, though there are many kinds of 
 business in which the proper execution of an order may 
 depend on the supervision of a particular person. And in 
 general terms it may be said that no contract which may 
 be performed by an agent can be discharged by a cause of 
 this kind. 
 
 Eights As we saw in the case of contracts falhng directly 
 
 accmired withiu the rule in Tai/Ior v. Caldwell, so in the case of 
 under the contracts for personal services the dissolution of the con- 
 remain, tract by subsequent impossibility does not affect any 
 specific right ah'eady acquired under it. Where there is 
 an entire contract of this kind for work to be paid for 
 by instalments at certain times, any instalments which 
 
 [q) L. R. 7 Q. B. 404. 
 
 (?•) See Wharton on Contractsg, 
 § 324, and Allen v. liakn; 86 N. C. 
 01, there cited, where the Supreme 
 
 Court of North Carolina expressly 
 declined to follow Hall v. JVright. 
 («) Arthur v. Wynne, 14 Ch. D. 
 603.
 
 DEFAULT OF PARTIES. 379 
 
 have become due in the contractor's lifetime remain 
 due to his estate after the contract is put an end to 
 by his death (t). In like manner where a premium 
 has been paid for apprenticeship, and the master duly 
 instructs the apprentice for a part of the term, and 
 then dies, his executors are not bound to return the 
 premium or any part of it as on a failure of considera- 
 tion. So the Coiu't of Common Pleas held in 1871 {k), 
 dissenting fi'om a decision the other way in the Coui't 
 of Chancery (.r), which, however, cannot be taken as 
 establishing a diiferent rule of equity, or therefore one 
 which under the Judicatm-e Acts must prevail. For, 
 except so far as it can be referred to the summary 
 jurisdiction of the Court over its own officers, that decision 
 is foimded on the supposition that a proportionate part of 
 the premium was a debt at law {//). 
 
 Where an existing contract is varied or superseded by a Substi- 
 subsequent agreement, and the performance of that agree- contract 
 ment becomes impossible {e. g. by the death of a person becoming 
 according to whose estimate a sum is to be assessed) so that of per- 
 the parties are no longer bound by it, they will be remitted ^ormance. 
 to the original contract if their intention can thereby be 
 substantially carried out. At all events a party for whose 
 benefit the contract was varied, and who but for his own 
 delay might have performed it as varied before it became 
 impossible, cannot afterwards resist the enforcement of the 
 contract in its original form (s). 
 
 3. We now come to the case of a contract becoming im- 3. Impos- 
 possible of performance by the default of either party. defaiiU of^ 
 
 either 
 
 Where the promisor disables himself by his own default V^^^^J- 
 from performino- his promise, not only is he not excused ^^^^^r*^ °^ 
 
 i or? J promisor 
 
 [t) Stubbs V. Hohjurll By. Co. L. {y) 2 Mac. & G. at p. 139; and 
 
 R. 2 Ex. 311. see the judgments of BoviU, C. J. 
 
 (m) TFhineup v. Hughes, L. R. 6 and Willes, J. in Whincup v, 
 
 C. P. 78. Hughes. 
 
 {x) Hirst V. Tohon, 2 Mac. & G. [z) Firth v. Midland Jiy. Co. 20 
 
 134. Eq. 100.
 
 380 
 
 IMPOSSIBLE AGREEMENTS. 
 
 no excuse, 
 but = 
 breach of 
 contract. 
 
 Default of 
 promisee 
 discharges 
 promisor, 
 and may 
 be treated 
 as breach, 
 or makes 
 contract 
 voidable 
 at his 
 option. 
 
 Roberts 
 Bury 
 Commis- 
 sioners, 
 &c. 
 
 (for whicli indeed authority would be superfluous) hut his 
 conduct is equivalent to a breach of the contract, although 
 the time for performance may not have arrived, and even 
 though in contingent circumstances it may again become 
 possible to perform it (a). A default consisting in mere 
 omission may have the same effect. Where an arbitrator 
 awards that the defendant shall pay the plaintiff's taxed 
 costs of a suit on a certain day, it is the defendant's busi- 
 ness to have them taxed before that day, and it is no 
 excuse that in fact he had not notice of the taxation 
 in time to pay them at the time and place fixed by the 
 award (b). 
 
 On the other hand, where the promisor is prevented 
 from performing his contract or any part of it by the de- 
 fault or refusal of the promisee, the performance is to that 
 extent excused ; and moreover default or refusal is a cause 
 of action on which the promisor may recover any loss he 
 has incurred thereby (c), or he may rescind the contract 
 and recover back any money he has already paid under 
 it (f/). Default may consist either in active interruption 
 or interference on the part of the promisee (c), or in the 
 mere omission of something without which the promisor 
 cannot perform his part of the contract (/). 
 
 The principle, in itself well settled, is illustrated by 
 several modern cases. Where the failure of a building 
 contractor to complete the works by the day specified is 
 
 (a) 1 Eo. Ab. 448, B., citing- 21 
 E. 4, 54, pi. 26 : " If you are bound 
 to enfeoff me of the manor of D. 
 before such a feast, and you make 
 a feoffment of that manor to 
 another before the feast, you have 
 forfeited the bond not^ndthstanding' 
 that you have the land back before 
 the feast, having once disabled 
 yourself from making the said 
 feoffment," per Choke, J. 
 
 (b) Ji'igland v. ISkcUon, 12 East, 
 436. 
 
 (c) As in the familiar case of an 
 action for non-acceptance of goods, 
 
 for not f ui'nishing a cargo, &c. ; so 
 "with a special contract, e. g. Roberts 
 V. Bury Commissioners, L. R.4 C. P. 
 756, in Ex. Ch. 6 C. P. 310. 
 
 {d) GiJesY. Edicards, 7 T. R. 181. 
 
 {c) 1 Ro. Ab. 453, N. 
 
 (/') Where a condition can be 
 performed only in the obhgee's 
 presence, his absence is an excuse, 
 1 Eo. Ab. 457, U. A covenant to 
 make within a year such assTu-ance 
 as the covenantee's counsel shall 
 devise is discharged if the cove- 
 nantee does not tender an assurance 
 within the year, ib. 446, pi. 12.
 
 DKFAULT OF PROMISEE, 381 
 
 caused by the failure of the other parties and their archi- 
 tect to supply plans and set out the land necessary to 
 enable him to commence the works, " the rule of law 
 applies which exonerates one of the two contracting parties 
 from the performance of a contract when the performance 
 of it is prevented and rendered impossible by the wrongful 
 act of the other contracting party " (jy), and the other party 
 cannot take advantage of a provision in the contract 
 making it determinable at their option in the event of the 
 contractor failing in the due performance of any part of 
 his undertaking {g) . So where it is a term of the contract 
 that the contractor shall pay penalties for any delay in the 
 fulfilment of it, no penalty becomes due in respect of any 
 delay caused by the refusal or interference of the other 
 party (A). Where a machine is ordered for doing certain 
 work on the buyer's land, on the terms that it is to be 
 accepted only if it answers a certain test ; there, if the 
 buyer fails to provide a fit place and occasion for trying 
 the machine, and so deals with it as to prevent a fail' test 
 from being applied according to the contract, he is bound 
 to accept and pay for the machine (/). 
 
 In Raymond v. Minton ik) it was pleaded to an action Cases of 
 of covenant iigainst a master for not teaching his appren- t/ceship 
 tice that at the time of the alleged breach the apprentice 
 would not be taught, and by his own wilful acts prevented 
 the master from teaching him. This was held a good 
 plea, for " it is evident that the master cannot be liable 
 for not teaching the apprentice if the apprentice will not 
 be taught." An earlier and converse case is Ellen v. 
 Topp (/), referred to by the reporters. There a master 
 undertook to teach an apprentice several trades; it was 
 held that on his giving up one of them, and thus making 
 the complete performance of his own part of the contract 
 
 [g) Roherts v. Bury Commissioners, (i) Machay v. Bicl:, in H. L. 
 
 L. R. 5 C. P. 310, 329. (Sc), 6 App. Ca. 251. 
 
 (li) Holme V. Guppy, ?, M. & W. (/) L. K. 1 Ex. 244. 
 
 387 ; Russell v. Da Bandeira, 13 C. (/) 6 Ex. 424, 442 ; 20 L. J. Ex. 
 
 B. N. S. 149, 32 L. J. C. r. 68. 241.
 
 382 IMPOSSIBLE AGREEMENTS. 
 
 impossible, the apprentice was no longer bound to serve 
 him in any, " If the master is not ready to teach in the 
 very trade which he has stipulated [promised] to teach, 
 the apprentice is not bound to serve." A case of the same 
 sort is put by Choke, J. in the Year Book, 22 Ed. 4, 26, in 
 a case from which one passage has already been given. 
 
 " If I am bound to Catesby [then another judge of the Common Pleas] 
 that my son shall serve him for seven years, and I come with my son to 
 Catesby, and offer my son to him, and he v/ill not take him, there because 
 there is no default on my part I shall not forfeit the bond. In like manner 
 if he took my son and afterwards witliin the term sent him away, it is 
 unreasonable that this should be a forfeiture." 
 
 Aitema- Where a contract is in the alternative to do one of two 
 tract. ' things at the promisor's option, and one of them is impos- 
 Whereone q[1)Iq the promisor is bound to perform that which is 
 
 Til m ^ iHi" ■' X -1- 
 
 possible, possible {m). We find the rule clearly stated in the 
 We onr^" I^ig'est (») . Where one of two things contracted for in 
 must be the alternative subsequently becomes impossible, it is a 
 ed. Where question of construction for which no positive rule can be 
 one be- ia_i(-| down, whether according to the true intention of the 
 
 comes . . (• 1 1 
 
 impos- parties the promisor must perform the alternative which 
 a uestion ^'^^^lains possible, or is altogether discharged (o) . It was 
 of con- held, indeed, in Laughto-'s case (7;) that where the con- 
 dition of a bond is for either of two things to be done by 
 the obligor, and one of them becomes impossible by the 
 act of Grod, he is not bound to perform the other. But 
 this is to be accounted for by the peculiar treatment of 
 bonds, of which we shall speak presently, the right of 
 election being part of the benefit of the condition, of which 
 the obligor is not to be deprived. And even as to bonds 
 the general proposition has been denied (0). In the 
 absence of anything to show the intention in the particular 
 case, the presumption should surely be the other way, 
 
 (»^) Da Costa v. Davis, 1 B. & P. solmmnodo stipulatus essem. D. 
 
 242. 45. 1. de v. o. 97 pr. 
 
 («) Si ita stipulatus fuero : te (o) Barkicorth v. Yomir/, 4 Drew. 
 
 sisti ; nisi stetcris, hippocentaunDii 1,25. 
 dari ? proindo crit at(iuc te sisti (p) 5 Co. Hep. 21 h. 
 
 struction.
 
 default. 
 
 ALTERNATIVK COXTRACTS. 383 
 
 namely that the promisor should lose his election rather 
 than the promisee lose the whole benefit of the contract. 
 Where either the promisor or the promisee, having the 
 right under a contract to choose which of two things shall 
 he done, chooses one which becomes impossible after the 
 choice is determined, there (on authority as well as prin- 
 ciple) it is the same as if there had been from the first 
 a single unconditional contract to do that thing (^7). In 
 Roman law the presumption seems distinctly in favour of 
 the promisor remaining bound to do what is possible (r) ; 
 otherwise it agrees with ours {s). 
 
 The exception as to mora in the extract given in the Effects of 
 note shows the application here of the general rule as to 
 impossibility caused by acts of the parties. The case put 
 is that the creditor has made his election (to have Stichus, 
 suppose) but has neglected or refused to accept Stichus : 
 now if Stichus dies he cannot demand Pamphilus. It is 
 the same as if there had been a single promise, and the 
 performance made impossible by the promisee's default. 
 The same rule is given in another passage {t). 
 
 {q) Brown v. Royal Insurance Co. potest. D. 46. 3. de solut. et lib. 
 
 p. 361, above. 95 pr. He proceeds to this curious 
 
 (r) Save that in the case of an question : What if one dies by the 
 
 alternative obligation to deliver debtor's default before election 
 
 specific objects at the promisor's made, and afterwards the other 
 
 election he still has an election in dies withoiit his default ? No ac- 
 
 solutlone, as it is said, i.e. he may at tion can be maintained on the 
 
 his option pay the value of that stipulation, but there is a remedy 
 
 which has perished. See Van- by doli actio. 
 
 gerow, Pand. § 569, note 2 (3. 22 {t) Stipulatus sum Damam aut 
 
 sqq.) where the subject is fully Erotem ser\n.un dari, cum Damam 
 
 worked out. dares, ego qiiominus acciperem in 
 
 (s) Papinian says : Stichnm aut mora fui ; moi'tiius est Daraa ; an 
 Fainphilicin, iitrnm ego vclim, dare putes me ex stipulatu actionem 
 spondes ? altero mortuo, qui vivit habere ? Respondit, secundum Mas- 
 solus petetvir, nisi si mora facta sit surii Sabini opinionem puto te ex 
 in eo mortuo, quem petitor elegit ; stipulatu agere non posse ; nam is 
 tunc enim perinde solus ille qui I'ecte existimabat, si per debitorem 
 decessit praebetur ac si solus in ob- moi-a non esset, quominus id quod 
 ligationem deductus fuisset. Quod debebat solveret, continuo eum 
 si promissoris fuerit electio, de- debito liberari. D. 45. I. de v. o. 
 ftmcto altero {i.e. before election 105. 
 made), qui superest aequo peti
 
 384 
 
 IMPOSSIBLE AGREEMENTS. 
 
 Condi- 
 tional 
 contracts. 
 
 In what 
 ways con- 
 dition 
 may be 
 necessary 
 or impos- 
 sible. 
 
 There is yet something to be said of the treatment of 
 conditional contracts where the condition is or becomes 
 impossible. A condition may be defined for the present 
 purpose as an agreement or term of an agreement whereby 
 the existence of a contract is made to depend on a future 
 contingent event assigned by the will of the parties (?<). 
 
 The condition may be either that an event shall or that 
 it shall not happen, and is called positive or negative ac- 
 cordingly. Now the event which is the subject-matter of 
 the condition, instead of being really contingent, may be 
 necessary or impossible, in itself or in law. But the nega- 
 tion of a necessary event is impossible and the negation 
 of an impossible event is necessary. It therefore depends 
 further on the positive or negative character of the con- 
 tingency whether the condition itself is necessary or 
 impossible. 
 
 Thus we may have conditional promises with conditions 
 of these kinds ; 
 
 Necessary : 
 
 (a) By affirmation of a necessity. As a promise to pay 
 100/., *' if the sun shall rise to-morrow." 
 
 (/3) By negation of an impossibility : " If J. S. does not 
 climb to the moon," or " if my executor does not sue for 
 my debt to him." 
 
 Impossible : 
 
 (7) By affirmation of an impossibility : " If J. S. shall 
 climb to the moon," or " if J. S. shall create a new 
 manor." 
 
 (^) By negation of a necessity : " If the sun shall not 
 rise to-morrow," or " if my personal estate shall not be 
 liable to pay my debts " {x). 
 
 It is obvious that as a matter of logical construction the 
 forms (^) and (/3) are equivalent to unconditional promises, 
 (y) and (S) to impossible or nugatory promises. And so 
 
 (u) Savigny, Syst. § 116(3.121); 
 Pothier, Obi. § 199. 
 
 (x) Slightly modified from Sa- 
 vigny, Syst. § 121 (3. 156, 158).
 
 CONDITIONS IN BONDS. 385 
 
 we find it dealt with by the Roman law {//). It is equally 
 obvious that (still as a matter of logical construction) there 
 is nothing to prevent the condition from having its regular 
 effect if the event is or becomes impossible in fact. For 
 example, " if A. shall dig 1000 tons of clay on B.'s land 
 in every year for the next seven years " : here there may 
 not be so much clay to be dug or A. may die in the 
 first year. But a promise so conditioned is perfectly 
 consistent and intelligible without importing any further 
 cjualification into it ; and it would obviously be more 
 difficult to come to the conclusion that some fm-ther 
 qualification is to be understood than in the case of a 
 direct and unconditioned contract by A. himself to dig so 
 much clay. 
 
 Direct covenants or promises dependent on express con- 
 ditions must be construed with reference to these general 
 principles : beyond this no rule can be given except that 
 it is never to be forgotten that the object of judicial con- 
 struction is to ascertain and give effect to the real meaning 
 of the parties (;:). 
 
 Practically the discussion in our books of conditions and Treat- 
 then- effect on the legal transactions into which they enter conditions 
 is limited to the following sorts of questions : j^ English 
 
 1. What contracts are really conditional, or in technical 
 language, what amounts to a condition precedent (a) : 
 
 2. The effect of conditions and conditional limitations 
 in conveyances at common law and under the Statute of 
 Uses (which topics are obviously beyond our present 
 scope) : 
 
 3. The effect of conditions in bonds. This form of 
 
 (y) " Si impossibilis condicio obli- petere potest." I. 3. 19.de inut. 
 
 gationibus adiciatiu', nihil valet stipul. § 11. 
 
 stipulatio. Impossibilis autem con- {z) See per Martin, B. \a Brad- 
 
 dicio habetur, cui natm'a impedi- ford v. Williains, L. R. 7 Ex. at 
 
 mento est quo minus existat,veluti p. 259. 
 
 si quis ita dixerit : Si digito caelum [a] The classical authority on this 
 
 attigero, dare spondes ? At si ita topic is Serjeant Williams' note to 
 
 stipuletur: Si digito caelum non Pon^r.T/e v. C'o^e, 1 "Wms.Sauud. 550 ; 
 
 attigero, dare spondes? pure facta see also notes to Cutter v. Powell, in 
 
 obligatio intellegitur ideoque statim 2 Sm. L. C. 
 
 P. C C
 
 386 • IMPOSSIBLE AGREEMENTS. 
 
 contract is now gone out of use except for certain special 
 pui'poses, but was formerly general, insomuch that almost 
 all the older learning on the construction and performance 
 of contracts is to be found under the head of conditions. 
 Here there are some peculiarities which call for our atten- 
 tion in this place. 
 Bonds. So far as the form goes, a bond is a contract dependent 
 
 between on a negative condition. In the first instance the obligor 
 the tech- professes to be bound to the obligee in a sum of a certain 
 
 nical loi'm ^ " . . . i .« 
 
 and the amount. Then follows the condition, showing that if a 
 Co- S^the" certain event happens (generally something to be done by 
 instru- the obligor) the bond shall be void, but otherwise it shall 
 remain in force. " The condition is subsequent to the 
 legal obligation ; if the condition be not fulfilled the 
 obligation remains" {h). This is in terms a promise, 
 stated in a singularly involved way, to pay a sum of money 
 if the event mentioned in the condition does not hajDpen. 
 But this, as everybody knows, is not the true nature of the 
 contract. The object is to secure the performance of the 
 condition, and the real meaning of the parties is that the 
 obligor contracts to perform it under the conventional 
 sanction of a penal sum. This view is fully recognized by 
 the modem statutes regulating actions on bonds, by which 
 the penalty is treated as a mere secuiity for the perform- 
 ance of the contract or the payment of damages in de- 
 fault (c) . On principle, therefore, a bond with an impossible 
 condition, or a condition which becomes impossible, should 
 be dealt with just as if it were a direct covenant to per- 
 form that which is or becomes impossible. In the former 
 case the bond should be void, in the latter the rule in 
 Taylor v. CahUcvU [d) would determine whether it were 
 avoided or not. We have seen that where the condition 
 is illegal ovoc Courts have found no difficulty in consider- 
 ing the bond as what in truth it is, an agreement to do 
 
 (i) Sir W. W. FoUctt, arg. Bcs- {c) As to these, see Freston v. 
 
 wick V, Stvinclells, 3 A. & E. 875. Dania, L. R. 8 Ex. 19. 
 
 {</) 3 B. & S. 82G, s/(pm, p. 3G7.
 
 CONDITIONS IN BONDS. 387 
 
 the illegal act. But in the case of impossibility the law Wiioro 
 has stuck at the merely formal view of a bond as a iinm(,(ii. 
 contract to pay the penal sum, subject to be avoided by ately iiu- 
 the performance of the condition ; accordingly if the con- obligation 
 dition is impossible either in itself or in law tlie obligation 1,® f^^^^, 
 remains absolute. cording to 
 
 " If a man be bound in an obligation, &c., with condition foi^nJai'^^ ^ 
 that if the obligor do go from the church of St. Peter in construc- 
 Westminster to the churcli of St. Peter in Rome within 
 three hours, that then the obligation shall be void. The 
 condition is void and impossible and the obligation standeth 
 good." So, again, if the condition is against a maxim or 
 rule in law, as "if a man be bound with a condition to 
 enfeoff his wife, the condition is void and against law, 
 because it is against the maxim in law, and yet the bond 
 is good" (e). 
 
 In the same way, " when the condition of an obligation 
 is so insensible and incertain that the meaning cannot be 
 known, there the condition only is void and the obligation 
 good"(/). ^ 
 
 On the point of subsequent impossibility, however, the But sub- 
 strictly formal view is abandoned, and an opposite result impo^sd- 
 arrived at, but still in an artificial way. The condition, it ^j^i^y ^^J^ 
 is said, is for the benefit of the obligor, and the perform- 
 ance thereof shall save the bond; therefore he shall not 
 lose the benefit of it by the act of Grod {g) , and where the 
 condition is possible at the date of the instrument, " and 
 before the same can be performed the condition becomes 
 impossible by the act of Grod, or of the law, or of the 
 obligee, there the obligation is saved " (//) ; or as another 
 book has it, " the obligation and the condition both are 
 
 {e) Co. Lit. 2065 (some of the London to Rome being two clays 
 
 &c.'s in Coke's text are omitted). and eighteen hours. 
 
 To the same effect Shepp. Touchst. (/) Shepp. Touchst. 373. 
 
 372. As to going to Rome the [ff) This reasoning appears both 
 
 more usual phrase in the old books in La//c/ liter's ca. 5 Co. Hep. 21b, 
 
 is three days ; which is now iuap- and Lamb's ca. ib. 23 b. 
 
 plicable, the course of post from (//) Co. Lit. 200^. 
 
 C C 2
 
 388 
 
 IMPOSSIBLE AGREEMENTS. 
 
 become void"(/). "Generally if a condition that was 
 possible when made is become impossible by the act of 
 Grod, the obligation is discharged" (k). As to the acts of 
 the law and of the obligee this agrees with the doctrine 
 of contracts in general : as to inevitable accident it esta- 
 blishes a different rule. The decision in Lanfj/iier^s case 
 {supra, p. 382) was an application of the same view, and 
 it therefore appears that there should never have been 
 any question of extending it to direct covenants or con- 
 tracts. 
 
 The peculiar law thus laid down is distinctly recognized 
 by modern authorities (/). However, if a bond appears 
 on the face of it to be given to secui-e the performance of 
 an agreement which it recites, the condition will take 
 effect according to the true intention of the agreement 
 rather than the technical construction resulting from the 
 form of the instrument (m) . 
 
 Alterna- 
 tive con- 
 ditions, 
 and de- 
 fault of 
 parties ; 
 same law 
 as for 
 ordinary- 
 contracts. 
 
 Alternative conditions, at any rate as to immediate im- 
 possibility, and conditions made impossible by the default 
 of the parties, or otherwise than by the " act of Grod," 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 (w) . 
 
 "When the condition of an obligation is to do two things by a day, 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 himself ; in this case the obligor is not bound to do the other thing 
 that is possible, bvit is discharged of the whole obligation. But if at the 
 time of making of the obligation one of the things is and the other of the 
 things is not possible 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 stranger, the obligor must see that he do the 
 
 (i) Shepp. Touchst. 372. 
 
 (k) Ro. Ab. 1. 449, G, pi. 1 ; 
 repeated on p. 451, I, pi. 1. 
 
 (l) 1 Wms. Saund. 238 ; per 
 Williams, J. Broivn v. Mayor of 
 London, 9 0. B. N. S. 726, 747, 30 
 
 L. J. C. P. 225, 230. 
 
 (?«) Bcswick\. SwiHdcIlSj'Ex. Ch.., 
 3 A. & E. 868. 
 
 («) Per Cm\ Besivick v. Swindells, 
 3 A. & E. at p. 883.
 
 CONDITIONS IN BONDS. 389 
 
 other thing at his peril." If the condition be that A. shall marry B. by 
 a day, and before the day the obligor himself doth many her: in this case 
 the condition is broken. But if the obligee maiTy her before the day, the 
 obligation is discharged (o) . 
 
 " If a man is bound to mo in 20^. on condition that he pay me 10^., in 
 that case if he tender me the money and I refuse he is altogether excused 
 from the obligation, because the defaiilt is on my part who am the 
 obligee" (p). 
 
 The provisions of the Indian Contract Act on the Indian 
 subject of this chapter are given in the Appendix (q). It Act 
 will be seen that simplicity is gained at the expense of ^eparts 
 considerable departure from the princij^les of English law, English 
 and perhaps also at the expense of definiteness on some ^^' 
 points. The most important change is the extension of 
 the principle of Taylor v. Caldwell so as to make it an 
 implied condition in all contracts that the performance 
 shall remain possible. 
 
 (o) Shepp. Touchst. 382, 392. (p) Brian, C. J. 22 Ed. 4. 26. 
 
 And see pp. 393^. {q) Note K.
 
 ( 390 ) 
 
 CHAPTER VIII. 
 Mistake. 
 
 Part I. Of Mistake in Gteneral. 
 
 Conditions HiTHERTO WG havG been dealing with perfectly general 
 reality or Conditions for tlie formation or subsistence of a valid con- 
 freedom of tract, 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. Exceptions to this do certainly occm*, but chiefly 
 where (as in great part of the doctrine of Impossibility) 
 the rules are in truth reducible to rules of construction. 
 "We have had before us, on the whole, the purely objective 
 conditions of contract ; 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 fairly be called subjective. The consent of the 
 parties is now the central point of the inquiiy, and our 
 task is to examine how the legal validity of an agreement 
 is affected when the consent or apparent consent is de- 
 termined by certain causes. 
 
 The existence of consent is ascertained in the first in- 
 stance by the rules and principles set forth in the first 
 chapter. When the requirements there stated are satisfied 
 by a proposal duly accepted, there is prima facie a good 
 agreement, and the mutual communications of the parties 
 are taken as the expression of a valid consent. But we 
 still require other conditions in order to make the consent 
 binding on him wlio gives it, although their absence is in
 
 GENERAL PRINCIPLES. 
 
 391 
 
 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 agree- 
 ment. 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 O'svTi deliberate choice. Now the results are entii'ely 
 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 independent of the par- 
 ticular 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. We have then the following combinations : 
 
 A. Ignorance. 
 
 A. Not caused by act {h) of other party, is re- 
 
 ferred in law to the head of 
 Caused by act {h) of other pai'ty 
 
 B. without wrongful intention. 
 c. with wrongful intention. 
 
 B. Fear, or dependence excluding freedom of action. 
 
 Not caused by acts of other l^arty or relation 
 between the parties. 
 D. Caused by such acts. 
 B. By such relation. 
 
 Mistahe. 
 
 Misrepresentation. 
 Fraud. 
 
 (Immaterial.) 
 Duress or Coercion. 
 Undue infiuence. 
 
 Classifica- 
 tion and 
 legal con- 
 sequences 
 of Mis- 
 take, 
 Fraud, &c. 
 
 {a) It is quite wrong, as Savigny 
 has shown, to say that a consent 
 determined by mistake, fraud, or 
 coercion is no consent. Syst. §5 114, 
 115 (3. 98 sqq.). If it were so the 
 agreement would be absolutely void 
 in all cases : a reductio ad absurdu/n 
 
 which is no less complete for English 
 than for Roman law. See per Lord 
 Cranworth, Bogse v. Rossborough, 6 
 H. L. C. at p. 44, and per Lord 
 Chelmsford, OaJccs v. Turquand, 
 L. R. 2 H. L. at p. 349. 
 
 {b) It will be eeen hereafter that
 
 392 MISTAKE. 
 
 The legal consequences of these states of things are 
 exceedingly various. 
 
 A. Mistake does not of itself affect the validity of con- 
 tracts 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 ex- 
 pression 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 inten- 
 tion. The jurisdiction to rectify instruments on the 
 ground of mistake, as well as the peculiar rules of con- 
 struction just mentioned, is derived from the Court of 
 Chancery. 
 
 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 imdue 
 influence are not void, but voidable at the option of the 
 party on whom coercion or undue influence is exercised. 
 
 In almost every branch of the subject there have been 
 differences between the doctrines of the common law and 
 those of equity ; the real extent of these differences, how- 
 ever, is often far from easy to ascertain. 
 
 These topics have now to be considered in order. And 
 first of Mistake. 
 
 Mistake : The wliole topic is smTounded with a great deal of con- 
 and con- fusion in our books, though on the whole of a verbal kind, 
 
 omissions are equivalent to acts for of mind in tlie party, is in itself 
 
 this purpose in certain exceptional immaterial. As Fear is to Coercion, 
 
 cases. so is Mistake to Fraud. Sav. Syst. 
 
 (c) Just as fear, merely as a state 3. 11 G.
 
 GENERAL PRINCIPLES. 393 
 
 and more embarrassing to students tlian to practitioners, fusions 
 Exactly the same kind of confusion prevailed in the civil the sub^^ 
 law (whence indeed some of it has passed on to our own) ject. 
 until Savigny cleared it up in the masterly essay which 
 forms the Appendix to the third volume of liis System. 
 The principles there established by him have been fully 
 adopted by later ^^^•iters (d), and appear to be in the main 
 ajiplicablo to the law of England. 
 
 The difficulties which have arisen as well with us as in 
 the civil law may be accounted for under the following- 
 heads : 
 
 (1.) Confusion of proximate with remote causes of legal 
 consequences : 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 where 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 cases. Such are the 
 maxim Won udentur qui errant conscntire and other similar 
 expressions, and to some extent the distinction between 
 ignorance of fact and of law [e] . 
 
 (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 Eoman law by Savigny, 
 and in a slightly different form for English law by Lord 
 "Westbury (/), being that " ignorance of law " means only 
 
 [d) Some of his conjectural deal- compact and useful form, 
 ings with specifi-C anomalies in the [e] See Savigny's Appendix, Nos. 
 
 Roman texts are at least darmg, VII., VIII. Syst. 3. 342, 344. 
 but this does not concern English (/) Cooper v. Fhibhs, L. R. 2 
 
 students. Vangei-ow gives the H. L. at p. 170: to which the dicta 
 
 general doctrine (Pand. § 83, 1. 116 in the later case of Earl Bcauchamp 
 
 sqq.) and its special application to v. TFinn, L. E. 6 H. L. 223, really 
 
 contract {ib. § C04, 3. 275) in a add little or nothing.
 
 394 MISTAKE. 
 
 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 expres- 
 sions of the law. We rather proceed to deal with the 
 matter affirmatively on that which appears to us its true 
 footing. 
 
 A. General A. Mistake in general. 
 
 Mistake as The general rule of private law is that mistake as such 
 
 such in- jjQ^g jjQ leffal effects at all. This may be more definitely 
 
 operative : i c m 
 
 expressed as follows : 
 
 Where 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 ; 
 
 except Unless knowledge of something which the mistake pre- 
 
 theTpecml vents from being known, or an intention necessarily 
 
 natm-e of depending on such knowledge, be from the nature of the 
 
 knowledge particular act a condition precedent to the arising of some 
 
 S5or" right or duty under it. 
 
 precedent Special exceptions to the rule exist, bat even these are 
 conse- founded on special reasons beside, though connected with, 
 quences. the mistake itself. 
 
 There are abundant examples to show the truth of this 
 
 proposition in both its branches. 
 
 As to the First, mistake is in general inoperative as to the legal 
 
 the person position or liability of the party doing an act. We must 
 
 acting premise that a large class of cases is altogether outside this 
 
 mistake, 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 hnowinghj. There, if the act is done without 
 
 knowledge, the offence or wrong is not committed, and no
 
 jencral 
 no excuse. 
 
 IGNOKANCE NO EXCUSE. 395 
 
 liability arises. It is not that ignorance is an excuse for 
 the wrongful act, but that there is no wrongful act at 
 all {(/). 
 
 It is certain that iffnoranco is as a rule no excuse as Wrongful 
 
 r . . ... . . acts • 
 
 regards either the liabilities of a quasi-criminal kind which ifrnorance 
 arise under penal statutes {/>) or such as are piu-ely 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 employ- 
 ments of a like nature, who by the necessity of the case 
 are specially privileged (i). 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 vmlawful 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 (A-). 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. The servant who 
 
 ((/) The wider question how far and L. E. 7 Q. B. 616, affd. in H. L. 
 
 under what conditions ignorance of tiom. HoUins v. Fowler, L. R. 7 
 
 fact exckides criminal liability is H. L. 757. 
 
 beyond the scope of this work, and {k) See the distinction explained 
 
 too important to bo discussed inci- and illustrated by Poullon v. Z. ^- S. 
 
 dentally. See thereon Stephen's IF. R. Co. L. E. 2 Q. B. 534, and 
 
 Digest of Criminal Law, Ai-t. 34, several later cases : the last are 
 
 Beg. V. Prince, L. R. 2 C. C. R. BmjJei/ v. Manchester, ^t. Ry. Co. 
 
 154 ; and consult 0. "W. Holmes, Ex. Ch. L. R. 8 C. P. 148 (em- 
 
 junr., The Common Law, pp. 49 ■g\ojev'\isi\Ae); BolinghrokeY. Sivin- 
 
 sqq. don Local Board, L. R. 9 C. P. 575 
 
 {h) That ignorance cannot be (employer not liable) . See further 
 
 pleaded in discharge of statutory on the jirinciples governing this 
 
 penalties, see Garter v. McLaren, class of cases. Bank of Neiv South 
 
 L. R. 2 Sc. & D. 125-6. Wales v. Owston (J. C), 4 App. Ca. 
 
 (i) Foivler v. HoUins, Ex. Ch., 270.
 
 396 MISTAKE. 
 
 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. 
 Excep- Real exceptions are the following : — An ofScer of a court 
 
 judicial who has quasi- judicial duties to perform, such as those 
 process, Qf r^ frustee in bankruptcy, is not personally answerable 
 limited. for money paid by him under an excusable misappre- 
 hension of the law {vi). Also an officer who in a merely 
 ministerial capacity executes a process apparently regular, 
 and in some cases a person who pays money under com- 
 pulsion of such process, not knowing the want of jurisdic- 
 tion, is protected, as it is but reasonable that he should 
 be («). But this special exception is confined within 
 narrow boimds. Mistake as to extraneous facts, such as 
 the 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 Ji. fa. goods 
 supposed to belong to the debtor by marital right. After- 
 wards 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. Thereupon she brought 
 trover against the sheriff, and he was held liable, 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 (^j). 
 
 ( I) A wilfiil trespass which is not («) See Mai/or of London v. Cox, 
 
 gratuitous, but doue in the coiu'se L. R. 2 H. L. at p. 269. 
 
 of employment and for the master's (o) Lord Tenterden, C. J. GJass- 
 
 intended benefit, though without or poole v. Young, 9 B. & C. 690, 700 ; 
 
 against orders, may make the master cp. Garland \. Carlisle, 4 CI. & F. 
 
 liable : as in Linipus v. London 693. 
 
 General Omnibus Co. (Ex. Ch.), 1 H. (p) Glasspoolev. Yonnff, 9 B. &C. 
 
 & C. 520, 32 L. J. Ex. 34. 096,701. 
 
 (w) Ex parte Ogle, 8 Ch. 711.
 
 IGNORANCE AS CONDITION OF TITLE. 397 
 
 There are certain classes of cases in which, it may be Ignorance 
 said that mistake, or at any rate ignorance, is the con- "asercoiT- 
 dition of acquiring legal or equitable rights. These are dition of 
 the exceptional cases in which an apparent owner having rights : 
 a defective title, or even no title, can give to a purchaser (p^""cl|aso 
 a hotter right than he has himself, and which fall partly without 
 under the rules of law touching market overt and the ^^^^^^^i- 
 transfer of negotiable instruments, partly under the rule 
 of equity that the pui'chase for valuable consideration 
 without notice of any legal estate, right, or advantage 
 is "an absolute, unqualified, unanswerable defence" (q) 
 against any claim to restrict the exercise or enjoyment 
 of the legal rights so acquired (r). These rules depend 
 on special reasons. The two former introduce a positive 
 exception to the ordinary principles of legal owner- 
 ship, for the protection of purchasers and the conve- 
 nience of trade (s). It is natm-al and necessary that such 
 anomalous privileges should be conferred only on pur- 
 chasers in good faith. Now good faith on the pur- 
 chaser's part presupposes ignorance of the facts which 
 negative the vendor's apparent title. It may be doubted 
 on principle, indeed (in other words, accompanied with 
 " good faith " in the sense of the Indian Codes), whether 
 this ignorance should not be free from neghgence in 
 order to entitle him. For some time this was so held in 
 the case of negotiable instruments, but is so no longer (/) . 
 The rule of equity, though in some sort analogous to this, 
 is not precisely so. A. transfers legal ownership to B. a 
 
 {q) Pilcher V. Rawlins, 7 Ch. 259, law. Per Lord Westbiiry, PhilUps 
 
 269, per James, L. J. ; BlackwoodY. v. FhiUlps, 4 D. F. J. 208. 
 London Chartered Bank of Australia, (s) As to market overt the policy 
 
 L. R. 5 P. C. 92, 111. of the nUe seems an open question. 
 
 {r) This ai>i)lies not only to purely The Indian Contract Act contains 
 
 equitable claims but to all purely no siich provision (sees. 108), while 
 
 equitable remedies incident to legal on the other hand the Grerraan 
 
 rights. But it does not apply to Commercial Code (s. 306) extends it 
 
 those remedies for the enforcement to all sales made by a trader in the 
 
 of legal rights which in a few cases course of his business, 
 have been administered by courts of {t) See Chapter V. p. 218, above, 
 
 equity concurrently with eoiirts of
 
 398 MISTAKE. 
 
 piu-cliaser 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 restriction upon B. For all equitable rights 
 and duties are in their origin and proper nature, not in 
 rem but in personam : they confer ohUgaUones not dominia. 
 But if B. (by himself or his agent) knows of the equitable 
 liability, or if the circumstances are such that with reason- 
 able 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 liabihty which he knew or ought to have known 
 to attach to it : and the equitable claim is no less en- 
 forceable against him than it formerly was against A. 
 To be accurate, therefore, we should say not that an ex- 
 ception against equitable claims is introduced in favour of 
 innocent purchasers, 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 (?<). 
 Limits Even here the force and generality of the main rule is 
 
 excep-^ shown by the limits set to the exceptions. The purchaser 
 tioual of any legal right for value and without notice is to that 
 extent absolutely protected. But the purchaser of an 
 equitable interest, or of a supposed legal right which turns 
 out to be only equitable, must yield to all prior equitable 
 rights ix) , however blameless or even unavoidable his 
 
 (ii) Observe tliiit on the point of 208. A court of equity would not 
 
 negligence the rule of equity differs dei)rive a pui-cluiscr for value with- 
 
 from the rules of law : though, as out notice of anything he had actu- 
 
 the subject-matter of the rules is ally got, e.g. possession of title 
 
 different, there is no actual conflict. deeds : Heath v. Crealoclc, 10 Ch. 22 ; 
 
 (.r) F/nl/ipsv. F/nl/ij)s,4J).V.J. Wahbj v. arn>j, 20 Eq. 238: but
 
 WHEN INOPERATIVE. 399 
 
 mistake may have been. Again, no amount of negligence 
 will vitiate the title of a bond Jide holder of a negotiaLle 
 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 II. Davis and 
 indorsed by another U. Davis, it was held that a person 
 who innocently discounted it on the faith of this indorse- 
 ment had no title (//) . 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 must be present to constitute an 
 offence. In this sense and for this purpose " nulla voluntas 
 errantis est" [z). 
 
 The same principles hold in cases more dii*ectly con- Applica- 
 nected with the subject of this work. A railway company General* ^ 
 carries an infant above the age of three years without rule in 
 
 c3,sGS or 
 
 taking any fare, the clerk assuming him to be under that contract, 
 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 company's part to carry him safely {a). 
 A person who does not correctly know the natm^e 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 
 
 now that the Coiirt can administer case is really one of those on the 
 
 both legal and equitable remedies border-line of contract and tort, 
 
 in every case this rule has lost its where the breach is not so much of 
 
 practical importance : Cooper v. a contractual duty as of a general 
 
 Vescij, C. A., 20 Ch. D. 611, 632. duty annexed by law to a particular 
 
 {y) Mead v. Young, 4 T. R. 28. business or undertaking, siich as 
 
 {z) D. 39. 3. de aqua pluv. 20. was the ground of the action of 
 
 {a) Austin v. G. W. R. Co. L. E.. assumpsit in its original form. See 
 
 2 Q. B. 442. The contract was one judgment of Blackburn, J., and 
 
 entire contract with the mother of cp. the remarks of Grove, J. in 
 
 the infant plaintiff, who took only Foulhcs v. Metropolitan District liij. 
 
 one ticket for herseK ; it seems Co. 4 C. P. D. at p. 279, and Bige- 
 
 therefore that strictly she ought to low, L. C. on Law of Torts, 61o. 
 
 have been the jilaintiff. But the
 
 400 
 
 MISTAKE. 
 
 truth greater and more valuable than lie supposed it to 
 be, he cannot claim to have the transaction set aside on 
 the ground of this mistake {b). This, however, is to be 
 taken with caution, for it applies only to cases where 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 to deal with it only on the 
 implied condition that the state of things is not otherwise 
 than it is suj)posed 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 it any worse. A mistaken demand 
 which produces no result does not affect a plaintiff's right 
 to make the proper demand afterwards. Where B. holds 
 money as A.'s agent to pay it to C, and appropriates it to 
 his own use, 0. may recover from A. notwithstanding a 
 previous mistaken demand on B.'s estate, made on the 
 assumption that B. would be treated as O.'s own agent (c). 
 Nor does a mistaken 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 inde]3endent of and quite consistent 
 with the rule that a party who has wholly mistaken his 
 remedy cannot be allowed to proceed by way of amend- 
 ment m the same action in an entirely different form and 
 on questions of a different character (e). 
 
 As to Next, mistake does not in general alter existing rights, 
 
 rights of ^J-^1^6 presence of mistake will not make an act effectual 
 other which is otherwise ineffectual. Many cases which at first 
 
 sight look like cases of relief against mistake belong in 
 
 persons. 
 
 (b) Marshall v. Colktt, 1 Y. & C 
 Ex. 232. 
 
 (c) Hardy v. Metropolitan Land^- 
 Finance Co. 7 Ch. 427, 433. Cp. 
 Vaiifjcerow, P.nid. 1. IIS. 
 
 {d) Mitchell v. Lancashire S; York- 
 shire My. Co. L. E. 10 Q. B. 256, 
 2G1. 
 
 {i) Jacobs V. Seward, L. R. 5 H. 
 L. 464.
 
 WHEN IXOPEIlATn'E. 401 
 
 truth to this class, the act being such that for reasons 
 independent of the mistake it is inoperative. Thus a 
 trustee's possession of land is the possession of his cestui 
 que trust, and it makes no difference if he is mistaken as 
 to the person who really is cestui quo trust. His payment 
 over of the rents and profits to a wrong person, whether 
 made wilfully and fraudulently, or ignorantly and in good 
 faith, cannot alter the character of the possession (/'). 
 Where the carrier of goods after receiving notice from an 
 mipaid 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 the notice, if given at such a time and 
 under such circumstances that the delivery can and ought 
 to be j)revented {h), and the subsequent mistaken delivery 
 has not, as an intentional "wi-ongful 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 indorsed to D., an English corre- 
 spondent. 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, 0. 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 
 
 (/) Lister V. Fickford, 34 Beav. Lancashire^- Yorkshire Ey. Co. 2Ch. 
 
 576. 332, 340). 
 
 [g) The book has property ; but (A) Whitehead v. Anderson, 9 M. 
 
 the use of this word assumes that & W. 518 : Blackburn on Cont. of 
 
 stoppage in transitu rescinds the Sale, 269. 
 
 contract, contrary to the opinion (i) IMtv. Cowley, 7 Taunt. 169. 
 which now prevails [SehotsniKns v. 
 
 I'. D D
 
 402 
 
 MISTAKE. 
 
 Subse- 
 quent 
 conduct of 
 parties 
 founded 
 on mis- 
 taken con- 
 struction 
 does not 
 alter the 
 contract : 
 
 not take " the eifect of making the property in the bills 
 pass contrary to the intention of both iudorser and in- 
 dorsee " (/•). 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 : for as between 0. 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 (1) may possibly be supported on a 
 similar 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 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. 
 
 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 party, to have 
 the contract performed by the other according to the same 
 construction (ni). 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 
 
 (k) Ex parte Cote, 9 Gh. 27, 32. 
 
 (/) 8 Eq. 509. Sed qu. Lord 
 Justice Lindley, who was himself 
 counsel in the case, cites it (2. 1107) 
 with the material qualification, ' ' if 
 the transferee does notobject." The 
 case is remarkable for the dictum 
 (which ought never to have been 
 reported) that "fraud or mistake, 
 cither of them, is enough to vitiate 
 any transactmi.'''' 
 
 (w?) Midland G. IV. Ey. of Ireland 
 V. Johnson, 6 H. L. C. 798, 811, per 
 Loid Chelmsford. On the otlaer 
 hand, one who takes a wider view 
 of his rights under a contract than 
 the other j)arty will admit, is free 
 to waive that dispute and enforce 
 the contract to the extent which 
 the other does admit : Freston v. 
 Liwl; C. A., 27 Ch. D. 497.
 
 OF CONSTRUCTTOX. 403 
 
 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 contract resist the performance of it merely on 
 the ground that he misunderstood its legal effect at the 
 time («). Every party to an instrument has a right to 
 assume that the others intend it to operate according to 
 the proper sense of its actual expressions (o). 
 
 It must be remembered, however, that where both "'^P^, 
 parties have acted on a particular construction of an apart from 
 ambiguous document, that construction, if in itself admis- ^Q^^f^^^^ ^* 
 siblo, will be adopted by the Court ( p) . To this extent amount to 
 its original effect, though it cannot be altered, may be ^y mutual 
 cxp/aincd by the conduct of the parties. And moreover, if consent. 
 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). This is in truth 
 another illustration of the leading principle. Here their 
 conduct in performing the contract with variations would 
 show an intention to vary it if the true construction were 
 present to their minds. And 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 represent 
 a real original intention incorrectly expressed in the con- 
 tract : so that principle and convenience agree in the result. 
 
 {») Poirell V. Smith, 14 Eq. 8.3. Ch. 336, 349. And a party who 
 
 The dictum in Wycombe E>/. Co. v. has acted on one of two possible 
 
 I)o)tm)ujton Hospital, 1 Ch. 273, constructions of an obscure agrce- 
 
 cannot be supported in any sense ment cannot afterwards enforce it 
 
 contrary to this. according to the other : Marshall v. 
 
 (o) Per Knight Brace, L. J. JSmirfyt-, C. A., 19 Ch. D. 233, 241. 
 
 BentleijY. Mackay, 4 D. F. J. 285. [q) 6 H. L. C. p. 812-3. In the 
 
 (;;) Forbes v. Watt, L. R. 2 Sc. & particvilar case the appellants wex"e 
 
 D. 214. Evidence of the construe- an incorporated company, and 
 
 tion put on an instrument by some therefore it was said could not be 
 
 of the jjarties is of course inad- thus bound : sod qit. 
 missible : McCIcan v. Kouianh 9 
 
 D 1) 2
 
 404 
 
 MISTAKE. 
 
 Mistakes 
 in award. 
 
 We may also mention that there is no jurisdiction to set 
 aside an award, or refer it back to the arbitrator, on the 
 ground of a mistake in fact or law, unless the arbitrator 
 admits the mistake and desires the assistance of the Court 
 to rectify it, or unless there is an actual excess of jurisdic- 
 tion (/■). 
 
 Special What then are the special classes of cases in which 
 
 where mistake is of importance, and which have given rise to 
 
 mistake is the language held by our books on the subject ? They are 
 
 portance. believed to be as follows. 
 
 1. As ex- 1. Where mistake is such as to exclude real consent, and 
 true ^ ^^ prevent the formation of any contract, there the seeming 
 consent. agreement is void. Of this we shall presently speak at 
 
 large (Part 2 of this chapter). 
 
 2. In ex- 2. Where a mistake occurs in expressing the terms of a 
 trur"^° ^ ^'^^^ consent, the mistake may be remedied by the equitable 
 consent, jurisdiction of the Court. Of this also we shall speak 
 
 separately (Part 3). 
 
 3. Eenun- 3. A renunciation of rights in general terms is under- 
 rio^ht^ stood 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. Pay- 
 ment of 
 money. 
 
 4. 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 
 
 (>•) Dinn V. make, L. R. 10 C. P. 
 388. An arbitrator cannot of his 
 own motion correct even a manifest 
 
 clerical error in his award after 
 signing it : he should apply to the 
 Court : Morclue v. rahiier, 6 Ch. 22.
 
 OF FAC'l' AND t)F LAW. 405 
 
 much the mistake in itself as the faihu-e of the supposed 
 consideration on which the money was paid. 
 
 B. Mistake of Fact and of Law. b. Mistake 
 
 It is an obvious princijile that citizens must be presumed ^^^^ "''f 
 for all public purposes to know the law, or rather that they Law. 
 cannot be allowed to allege ignorance of it as an excuse. 
 As has often been said, the administration of justice would 
 otherwise bo impossible. Practically the large judicial 
 discretion which can be exercised in criminal law may be 
 trusted to prevent the rule froin operating too harshly in 
 particular cases. On the other hand it would lead to hard- 
 ship and injustice not remediable by any judicial discretion 
 if parties were always to be bound in matters of private 
 law by acts done in ignorance of their civil rights. There 
 is an apparent conllict between these two principles which 
 has given rise to much doubt and discussion (s). But the 
 conflict, if indeed it be not merely apparent, is much more 
 limited in extent than has been supposed. 
 
 It is often said that relief is given against mistake of How far 
 fact but not against mistake of law. But neither branch tinction 
 
 of the statement is true without a great deal of limitation appli- 
 
 . cable. 
 
 and explanation. We have already seen that in most 
 
 transactions mistake is altogether without effect. There, 
 
 of course, the distinction has no place. Again, there are 
 
 the many cases where, as we have pointed out above, 
 
 («) Savigny, followed by Van- topic, viz. recovering back money 
 
 gerow and other later writers, paid ; for there, so long as the 
 
 strikes out a general rule thus : ignorance is of fact, negligence is 
 
 Where mistake is a si^ecial groiind no bar : means of knowledge are * 
 
 of relief (and there only), the right material only as evidence of actual 
 
 to such relief is excluded by negH- knowledge : Kelly v. Solari, 9 M. 
 
 gence. Ignorance of law is pre- & W. 54, 11 L. J. Ex. 10 ; Toicns- 
 
 sumed to betheresultof negligence, end v. Croicdij, 8 C. B. N. S. 477, 
 
 but the presumption may be re- 29 L. J. C. P. 300. The only 
 
 butted by special circumstances, limitation is that the party seeking 
 
 e. g. the law being really doubtfiil to recover must not have waived all 
 
 at the time. There is much to be inquiry ; per Parke, B. 9 JI. & W. 
 
 said for this doctrine on principle, 59, and per Williams, J. 8 C. B. 
 
 but it wiU not fit Enghsh law as N. S. 494. 
 now settled on the most important
 
 406 
 
 MISTAKE. 
 
 Where 
 common 
 mistake 
 excludes 
 real agi'ee- 
 ment, 
 ignorance 
 of private 
 right at 
 all events 
 = igno- 
 rance of 
 fact. 
 
 Rectifica- 
 tion of 
 instru- 
 ments : 
 relief 
 given 
 against 
 mistake of 
 draftsman 
 though 
 not 
 
 knowledge or notice is a condition precedent to some legal 
 consequence. By the nature of these cases it generally 
 if not always happens that the subject-matter of such 
 knowledge, or of the ignorance which by excluding it ex- 
 cludes 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 material 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. 
 
 Then come the apparent exceptions 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 ques- 
 tion 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 con- 
 tracts fairly entered into with a full knowledge of the 
 facts " (f): but this does not touch the prior question 
 whether there is a contract at all. On cases of this class 
 English decisions go to this extent at all events, that 
 ignorance of particular private rights is equivalent to 
 ignorance of fact {u). As to No. (2) the principle appears 
 to be the same. A. and B. make an agreement and in- 
 struct 0. 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 case. In 
 neither is there any reason for holding the parties to a 
 contract they did not really make. 
 
 (() Banlc of U. S. v. Daniel (Sup. 
 Ct. XJ. S.) 12 Toters, 32, 56. Common 
 mistako as to a collateral matter of 
 law does not of course avoid a con- 
 tract : Eaglesfield v. Marquis of 
 Londonderry, 4 Ch. D. 693. 
 
 (;<) Bingham v. Bingham, 1 Ves. 
 Sr. 126, Broaghton v. Jlutt, 3 De 
 G-. & J. 501, Cooper v. I'hihbs, L. E,. 
 1 II. L. 119, 170 ; of which cases a 
 fuller account is given below.
 
 OF LAW, WHEN KEMEDIABLE. 407 
 
 Authority, so far as it goes, is in favour of wliat is here a^rainst a 
 advanced (./■). There is clear authority that on the other (.ho\c"of° 
 ]iand a court of equity will not reform an instrument by the- pur- 
 inserting in it a clause wliich the parties dehberately agreed form or 
 to leave out iy), nor substitute for tlie form of security the '^''.!^*"'t'' 
 
 "^•^ '' _ _ "^ ot lustru- 
 
 parties have chosen another form which they deliberately mcuts. 
 considered and rejected (,r), although their choice may 
 have been determined by a mistake of law. The reason 
 of these decisions, however, is that in such cases the form 
 of the instrument, by whatever considerations arrived at, 
 is part of the agreement itself and so beyond the power of 
 the Com"t. 
 
 As to No. (3), there is quite sufficient authority to show Eenuncia- 
 that a renunciation of rights under a mistake as to par- rights • 
 ticular applications of law is not conclusive, and some distinction 
 authority to show that it is the same even if the mistake promise or 
 is of a general rule of law. The deliberate renunciation <it4iberate 
 
 . . . ... abauclon- 
 
 or compromise of doubtful rights is of course binding ; it ment. 
 would be absm-d to set up ignorance of the law as an objec- 
 tion to the validity of a transaction entered into for the 
 very reason that the law is not accurately known (s). 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 [a) . Conduct 
 equivalent to renunciation of a disputed right is equally 
 binding, at least when the party has the question fairly 
 before him. Thus in Sto)ie v. Godfrey [b) 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 
 
 {x) Hunt V. Ii.oiisDiraiirrc's Adm. mises in Ch. IV., p. ISl, above. 
 
 (Sup. Ct. U. S.) 1 Peters, 1, 13, 14. (a) Stewart v. Stewart, 6 CI. & F. 
 
 (v) Lurd Irnhaiii v. Child, 1 Bro. 911 ; seethe authorities reviewed, 
 
 C. C. 92. pp. 966-970. 
 
 (z) Cp. the remarks on compro- (h) h D. M. G. 76,
 
 408 MISTAKE. 
 
 a manner wliicli amounted to representing to all persons 
 interested that he had determined not to raise the ques- 
 tion. It was held that although the mistake as to title 
 might in the absence of such conduct well be a 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 Rocjers v. Ingham (c) a fund had been 
 divided between two legatees under advice, and the pay- 
 ment agreed to at the time. One of the legatees after- 
 wards sued the executor and the other legatee for repay- 
 ment, 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 after- 
 wards 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 (d) . In Re Saxon 
 Life Assurance Society {e) it was held that a creditor of a 
 company was not bound by a release given in considera- 
 tion of having the substituted security of another com- 
 pany, 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 best put on the ground of total 
 failure of consideration (/). 
 Money As to No. (4), the subject of recovering back money 
 
 ndstak^ P^^*^ ^^ mistake does not properly fall within our scope. 
 
 (c) 3 Ch. D. 351 (Hall, V.-C. and remarks were made on McCarthy v. 
 
 C. A.) Bccaix, 2 Russ. & My. 614, as 
 
 {(l) Kitchin v. Ilawkiiis, L. R. 2 raising' a difficulty in this con- 
 
 C. P. 22. nexion. As that ease is no longer 
 
 (c) 2 J. & H. 408, 412 (the of authority {see Jlarvcij v. Farnie, 
 
 Anchor ca.). 8 App. Ca. 43, 52, 60, 63), they 
 
 (/) In the former editions some are now omitted.
 
 MISTAKEN PAYMENTS. 409 
 
 It is here, however, that the distinction between mistakes recover- 
 of fact and of law does undoubtedly and inflexibly prevail, ^hen^the 
 While no amount of mere negligence avoids the right to mistake is 
 recover back money paid under a mistake of fact (j/), 
 money paid under a mistake of law cannot in any case be 
 recovered ; nor does anything like the qualification laid 
 down by Lord Westbury in Cooper v. P/iibhs (//) appear 
 to be admitted. Ignorance of particular rights, however 
 excusable, is on the same footing as ignorance of the 
 general law (/). 
 
 An important decision of the American Supreme Court 
 appears to proceed on the assumption that giving a nego- 
 tiable instrument is for this purpose ec|uivalent to the pay- 
 ment of money, so that a party who gives it under a 
 mistake of law has no legal or equitable defence (A-). But 
 this seems not consistent with the later English doctrine 
 that 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 between the parties to a negotiable instrument, whether 
 the instrument has been obtained by a misrepresentation 
 of fact or of law (/) . 
 
 A covenant to pay a debt for which the covenantor 
 wi'ongly supposes himself to be liable is valid in law, nor 
 will equity give any relief against it if the party's igno- 
 rance of the facts negativing his hability is due to his own 
 negligence {/n). 
 
 (ff) Note («), p. 405, supra. a security, it is an application of 
 
 (A) L. R. 2 H. L. at p. 170. the rule caveat emptor, as to which 
 
 (i) See Ski/ring v. Greenwood, op. Clare v. Lamh, L. R. 10 C. P. 
 
 4 B. & C. 281, and op. Tlatt v. 334. 
 
 Bromage, 24 L. J. Ex. G3, where {k) Bank of U. S. v. Daniel, 12 
 
 however the mistake was not only Peters, 32. 
 
 a mistake of law, but collateral to {I) Southall v. Bigg, Forman v. 
 
 the payment, the money being Wright, 11 C. B. 481,492, 20 L.J. 
 
 really due ; Aiken v. Short, 1 H. & C. P. 145 ; Coicard v. Hughes, 1 K. 
 
 N. 210, 25 L. J. Ex. 321, rests on & J. 443. 
 
 the same ground, if the transaction [m) TJ'ason v. Wareing, 15 Beav. 
 
 in that case be regarded as the bare 151. Whether relief could be given 
 
 payment of another person's debt ; in any case, unless there were fraud 
 
 if it be regarded as the purchase of on the other side, qucere.
 
 410 MISTAKE. 
 
 Apparent The Court of Bankruptcy will order repayment of money 
 
 ^Bank^ paid to a trustee in bankruptcy under a mistake of law : 
 
 ruptcy : "b^^t this is no real exception, for it is not like an ordinary 
 
 officer of payment between party and party. The trustee is an 
 
 Court. officer of the Court and " is to hold money in his hands 
 
 otherwise ^ _ ... 
 
 same rules upon trust for its equitable distribution among the credi- 
 
 Ts at^law. ^°^® " (^0- I^ 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 conscience of the 
 person receiving the money in the one Court than in the 
 other Court, for the action for money had and received 
 proceeded upon equitable considerations " (o) . Thus a party 
 who has submitted 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 sub- 
 mitted {p). It has also been laid down that in a common 
 administration suit a legatee cannot be made to refund 
 over-payments volimtarily made by an executor (q) : 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 interested, who sought 
 to make the legatee liable. But in Bate v. JTooj^er {>') the 
 point arose distinctly : certain trustees were liable to make 
 good to their testator's estate the loss of principal 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 (s), 
 
 («) Ex parte James, 9 Ch. 609, (q) Per Lord Cottenham, Zich' 
 
 614, per James, L. J. Ji''!</ v. Baker, 13 Beav. 447, 4o3. 
 
 {o) liof/ers V. Inrjham (C. A.), 3 [r) b D. M. G. 338. 
 
 Ch. D. at p. 355, per James, L. J. (.«) She had iu fact desired the 
 
 {p) Goodman v. ISayers, 2 Jac. & trustees to convert the fund: see 
 
 W. 249, 263. p. 340.
 
 EXCLUDING CONSENT. 411 
 
 it was decided that she could not be 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 lield 
 that he could not claim to retain out of subsequent pay- 
 ments the sums which he should have deducted from 
 preceding ones (/). 
 
 Pakt II. Mistake as excluding true Consent, 
 
 In the first chapter we saw that no contract can be Cases to 
 formed when there is a variance in terms between the ^i^]^ ^^ 
 proposal and the acceptance. In this case the question t^^ ^^i^" 
 
 . , , . division. 
 
 whether the parties really meant the same thmg cannot 
 arise, for they have not even said the same thing. A court 
 of justice can ascertain a common intention of the parties 
 only from some adequate expression of it, and the mutual 
 communication of different intentions is no such expression. 
 
 We now have to deal with certain kinds of cases in 
 which on the face of the transaction all the conditions of a 
 concluded agreement are satisfied, and yet there is no real 
 common intention and therefore no agreement. 
 
 First, it may happen that each party meant something, Where no 
 it may be a perfectly well understood and definite thing, moniuten- 
 but not the same thing which the other meant. Thus their tio^' each 
 minds never met, as is not uncommonly said, and the meaning a 
 forms they have gone thi'ough are inoperative. f/?*^^*^^^* 
 
 Next, it may happen that there does exist a common ^^Yhere 
 intention, which however is founded on an assumption there is a 
 made by both parties as to some matter of fact essential to intention 
 the agreement. In this case the common intention must ^"* , , 
 
 " ^ _ ... lounded 
 
 stand or fall with the assumption on which it is founded, on a com- 
 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 
 
 (i!) Currie v. Goold, 2 Madd. 163.
 
 412 
 
 MISTAKE. 
 
 it is treated as non-existent. Here there is in some sense 
 an agreement : but it is nullified in its inception by tbe 
 nullity of the thing agreed upon. And it seems hardly 
 too artificial to say that there is no real agreement. The 
 result is the same as if the parties had made an agreement 
 expressly conditional on the existence at the time of the 
 supposed state of facts : which state of facts not existing, 
 the agreement destroys itself. 
 
 In the former class of cases either one party or both 
 may be in error : however that which prevents any con- 
 tract 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 
 contract {u), and if it is wanting 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 conve- 
 nient to use in order to mark the broad distinction in 
 principle from those cases where mistake appears as a 
 ground of special relief. 
 
 Divisions 
 of funda- 
 mental 
 error. 
 
 We proceed to examine the different kinds of funda- 
 mental 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. 
 
 (?<) Indian Contract Act, 1872, s. 13; Hannen, J., in Smith v. Hughes, 
 L. R. 6 Q. B. 009.
 
 AS TO NATURE OF TJIANSACTION. 41'J 
 
 A. Error as to the nature of f/ie tra/i-sacfioii. 
 
 On tliis the principal early autliority is I'lioroa(j1i<joo(l''H As to 
 case {x). In that case the plaintiff, who was a layman and thc'trans- 
 unlettered, liad a deed tendered to him which he was told <i«-tion. 
 was a release for arrears of rent only. The deed was not rough- 
 read to him. To this he said " If it be no otherwise I am e^"'^''^ 
 
 case. 
 
 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 " (y) : it was also resolved that "it is all one 
 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 executing a deed without requiring it to 
 be read or to have its effect explained would be bound (s) . 
 Agreeably to this the law is stated in Sheppard's 
 Touchstone, 56. But at present the mere reading over 
 of a deed "svithout an explanation of the contents would 
 hardly be thought sufficient to show that the person 
 executing it understood what he was doing {a). 
 
 The doctrine was expounded and confirmed by the Foster v. 
 luminous judgment of the Court of Common Pleas in 
 
 Mackin- 
 
 (.i) 2 Co. Rep. 9 i. Cp. Shulfer's next page. An anonjTiious case to 
 
 ca. 12 Rep. 90 (deed falsely read to the contrary, Skin. 159, is suffi- 
 
 a blind man). ciently disposed of by Lord St. 
 
 (>/) Per Cm-. L. R. 4 C. P. 711. Leonards' disapproval (V. & P. 
 
 It had been long before said, in 21 173). 
 
 Hen. 7, that "if I desire a man to (:;) I. e. to this extent, that he 
 
 enfeoff me of an acre of land in could not say it was not his deed, 
 
 Dale, and he tell me to make a deed apart from any question of fraud 
 
 for one acre with letter of attorney, or the like. 
 
 and I make the deed for two acres, (a) Hoghton v. Soghton, 15 Beav. 
 
 and read and declare the deed to 278, 311. In the case of a will the 
 
 him as for only one acre, and he execution of it by a testator of 
 
 seal the deed, this deed is utterly sound mind after having had it read 
 
 void whether the feoffor be lettered over to him is evidence, but not 
 
 or not, because he gave credence to conclusive evidence, that he under- 
 
 me and I deceived him." (Keilw. stood and approved its contents: 
 
 70, b, pi. 6.) And see the older Fulton v. Andrew, L. R. 7 H. L. 
 
 authorities referred to in note {d), 418, 460, sqq., 472.
 
 414 MISTAKE. 
 
 Foster v. MacMnnon {h) . 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 other words, that he never intended to sign, and therefore 
 in contemplation of law never did sign, the contract to which his name 
 is appended {c). . . . 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 liini, is supported by many authorities : see Com. Dig. Fait (B. 2) {d), 
 and is recognized by Bay ley, B. and the Coui-t of Exchequer in the case 
 of Edwards v. Brown {e). Accordingly it has recently been decided in the 
 Exchequer Chamber that if a deed be delivered, and a blank left therein 
 be aftei-wards improi^erly filled up (at least if that be done without the 
 grantor's neghgence), it is not the deed of the grantor: Swan v. North 
 British Australasian Land Company (/). These cases apply to deeds ; but 
 the principle is equally applicable to other written contracts." 
 
 {b) L. R. 4 C. P. 704, 711. verit] cum scriptam de termino 
 
 (c) The same rule is laid down, annorum sigillare crediderit, vel ut 
 
 andf or the same reason, in a rescript si carta fieri debuit ad vitam, illam 
 
 of Diocletian and Maxiinian : Si fieri fecit in feodo et huiusmodi, 
 
 falsum instrumentum emptionis dum tamen nihil sit quod imperi- 
 
 conscriptum tibi, velut locationis tiae vel negligentiae suae possit 
 
 quam fieri mandaveras, subscribere imputari, ut [yw. ut si] sigUlum 
 
 te non relecto sed fidem habentem suum seneseallotradideritveluxori, 
 
 suasit, neutrum contractum, in quod cautiiis debuit custodivisse. 
 utroque alterutrius consensu defi- {e) 1 C. & J. 312. 
 
 cientc, constitisse procul dubio est. (/) 2 H. & C. 175, 32 L. J. Ex. 
 
 C. 4. 22. plus valere, 5. 273. And it was there doubted 
 
 {d) Cited also by Willcs, J. 2 whether a man can be estopped by 
 
 C B. N. S. G24, and see 2 Ho. Ab. mere negligence from showing that 
 
 28 S : the cases there referred to a deed is not really his deed. See 
 
 (30 E. 3. 31 b ■ 10 H. G. 5, pi. 10) per Byles, J. 2 H. & C. 184, 32 L 
 
 show that the principle was recog- J. Ex. 278, and per Cockbvu-n, C J 
 
 nized in very early times. Cp. Fleta 2 H. & C. 189, 32 L. J. Ex. 275 
 
 1. G, c. 33 § 2. Si autem vocatus Mcl\ish,Ij. J. in Hu)iter \. Walters, 
 
 dicat quod carta sibi nocere non 7 Ch. 76, 87, mentioned this ques- 
 
 debcat .... vel quia per dolum tion as still open : and see Halifax 
 
 advenit, ut si cartam de f eoffamcnto Union v. Wheelwright, L. R. 10 
 
 eigillatani [jju. sigillavit or sigilla- Ex. 192.
 
 AS TO NATURE OF TRANSACTION. 415 
 
 The judgment proceeds to notice the qnalification of the 
 general rule in the case of negotiable instruments signed 
 in blank, n-Jien the party signimj knows what he is about, i. c. 
 that the paper is afterwards to be filled up as a negotiable 
 instrument (17) . But here the defendant "never intended 
 to indorse 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 
 misapplied {It). This decision shows clearly that an in- 
 strument executed 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 (/) ; and that, notwithstanding the 
 importance constantly attached by the law to the security 
 of bona fide holders of negotiable instruments, no exception 
 is in this case made in their favour. 
 
 The existence of a fundamental error of this sort, not Such 
 merely as to particulars, but as to the nature and substance iii^Equity 
 of the transactions, comes very seldom, if ever, to be con- generally 
 sidered by a court of equity, except in connexion with catedwith 
 questions of fraud from which it is not always practicable '^i^^'^^"^- 
 
 ^ _ _ ^ J r stances 01 
 
 to disentangle the previous question, "Was there any con- fraud. 
 
 (17) Whether this is a branch of want of Ids glasses, and being 
 
 the general principle of estoppel or assured by the railway clerk that 
 
 a po:<itive rule of the law merchant it was a mere form. "The whole 
 
 was much doubted in Swan v. North question was whether the xilaintifl; 
 
 British Australasian Land Co. in the signed the receipt knowing what he 
 
 Court below, 7 H. & N. 603, 31 L. was about ": per Cookbui-n, C. J. 
 
 J. Ex. 425. In the present judgment at p. 624. The clerk's statement 
 
 the Court of C. P. seems to incline distinguishes this from the class of 
 
 to the latter view. cases cited at p. 46 above. Where 
 
 (//) L. R. 4 C. P. at p. 712. a person intending to execute his 
 
 [i) Cp. Simons v. Great Western will has by mistake executed a 
 
 Ry. Co. 2 C. B. N. S. 620, where wrong document, that document 
 
 the plaintiff was held not bound by cannot be admitted to probate even 
 
 a paper of special conditions limit- if the real intention woidd thereby 
 
 ing the company's responsibility as be partially carried out : In the 
 
 carriers, which he had signed goods of Runt, L. R. 3 P. & D, 
 
 without reading it, being- in fact 250. 
 unable at the time to read it for
 
 416 
 
 MISTAKE. 
 
 Kennedy 
 V. Green. 
 
 Vorley 
 Cooke. 
 
 Ogilvie V. 
 Jeaffre- 
 son ; (7?<. if 
 consistent. 
 
 senting mind at all ? There is enough however to show 
 that the same principles are applied. 
 
 Thus in Kenned// v. Green (/.;) the plaintiff was induced 
 to execute an assignment of a mortgage, and to sign a 
 receipt for money which was never paid to her, " icithout 
 seeing what she was setting her hand to, by a statement 
 that she was only completing her execution of the mort- 
 gage 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 non est factum, would have been sustained 
 at law under these circumstances {I). But his decision 
 rested also on the defendant having constructive notice of 
 the fraud, and no costs were given to the plaintiff, her 
 conduct being considered not free from negligence. 
 
 In Vorley v. Cooke (/>?) there were cross suits for 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 consideration without notice, 
 against whom, according to the universal rule above noticed 
 (p. 397), no relief could have been given had the deed 
 been only voidable. 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 similar 
 decision in Ogilvie v. Jeaffreson {n), goes farther. For 
 there the plaintiff, being a mortgagee, executed assignments 
 
 {k) 3 M. & K. G99. 
 
 (l) 3 M. & K. at pp. 717, 718: 
 (but see the following note). The 
 M. R. seems to have thought the 
 estate did pass (p. 713). Hence the 
 variance between the f onn of the de- 
 cree affirmed and Lord Erougham's 
 view of the case. Stuait, V.-C.'s 
 remark (2 Gift'. 381) applies to the 
 M. R.'s judgment, not to Lord 
 Brougham's. 
 
 {in) 1 Giff. 230 : and see the re- 
 
 porter's note, p. 237. This decision 
 seems to be within the authority of 
 ThoroiighyoocVs case (which curi- 
 ously enough was not cited), at all 
 events as fcince construed in Foster 
 V. Mackinnoit. However, James, 
 L. J. has intimated an opinion 
 that a plea of noii est faction could 
 not have been sustained at law 
 either here or in Kennedy v. Green : 
 Hunter v- Walters, 7 Ch. at p. 84. 
 (w) 2 Giflf. 353.
 
 AS TO NATURE OF TRANSACTION. 417 
 
 of the mortgaged premises, wliicli were misrepresented to 
 him as leases. He did therefore intend to convey some 
 interest in the property, though not the same interest, nor 
 to the same persons, as appeared by the deeds. And the 
 case, so far as it decided that these deeds were absolutely 
 void, seems not consistent Avith the limitation laid down in 
 ThoroiKjhgooiV 8 case (p. 413, above) and affirmed by the 
 Court of Appeal in Chancery. 
 
 ' ' Wlien a man knows that ho is convoying or doing something with his 
 estate, but does not ask what is the precise efifect of the deed, because he 
 is told it is a mere form, and has such confidence in his solicitor as to exe- 
 cute the deed in ignorance, then a deed so executed, although it may be 
 voidable upon the ground of fraud, is not a void deed " (o). 
 
 Empsort's case (7;) seems distinguishable. There the 
 applicant bought land of a building society and executed 
 without examination mortgage deeds prepared by the 
 society's solicitor to secure the price. These deeds con- 
 tained recitals that he was a member, and treated the 
 whole transaction as an advance by the society to one of 
 its own members. He was never admitted or otherwise 
 treated as a member. The Court held that he was not a 
 contributory in the winding-up of the society. Here the 
 matter of the fictitious recitals was collateral to the main 
 purpose of the transaction. Observe that so far as the 
 deed professed to treat Empson as a shareholder it was 
 void, not only voidable : otherwise it would have been too 
 late to repudiate the shares after the winding-up order. 
 
 It has been laid down that a man of business who 
 executes " an instrument of a short and intelligible de- 
 scription cannot be permitted to allege that he executed it 
 
 (0) Hunter v. Walters, 7 Ch. 75; 7F«/to-« the conveying parties knew 
 
 per Mellish, L. J. at p. 88. The not only that they were conveying 
 
 attempt might possibly be made to some interest in the property their 
 
 distinguish Ogilvie v. Jeaffremn on deed purported to deal with, but 
 
 the ground that in that case the that they were conveying it to 
 
 grantor was in complete error, if Walters. But such a distinction 
 
 not as to the contents and substance seems hardly tenable, 
 
 of his grant, yet as to the person of {p) '^ Eq. 597, where no autho- 
 
 the grantee: whereas in Hunter v. rities appear to have been cited.
 
 418 
 
 MISTAKE. 
 
 in blind ignorance of its real character" [q). But probably 
 this is to be taken as an inference of fact ratlior than a 
 statement of law ; meaning not that the party is estopj)ed 
 in law from offering evidence to this effect, but that under 
 such conditions his own evidence is practically worth 
 nothing. 
 
 Distinc- 
 tion as to 
 agree- 
 ments of 
 drunken 
 man or 
 lunatic. 
 
 The doctrine above stated in Ch. II. p. 90, that the 
 contract of a lunatic or a drunken man is not abso- 
 lutely void but only voidable, seems at first sight not 
 consistent with the principles recognized by the Court 
 of Common Pleas in Foster v. Mackinnon {supra, p. 413). 
 It was in fact held by Lord Ellenborough ( r ) that 
 "an agreement signed by a person in a state of com- 
 plete intoxication is void, for such a person has no 
 agreeing mind," and the judges of the Court of Exche- 
 quer were at least inclined to the same view in Gore v. 
 Gihmn (s). However it is now settled, as we have seen (if), 
 that the agreement of a lunatic or drunken man known 
 to be so by the other party is not a void agreement, but a 
 voidable contract which after he becomes sober he may 
 ratify so as to make it binding on the other party, and 
 therefore on himself also. It is obviously reasonable that 
 one who offers to contract with a drunken man or a mad- 
 man, knowing his condition, should do so at his peril. If 
 the drunkenness or lunacy be not actually or presumably 
 known to the other party the contract is valid : for a man 
 who is apparently sane or sober cannot be supposed inca- 
 pable of knowing what he is about. But except in this 
 case the other party must be able to see that it is at least 
 doubtful whether the man is capable of understanding the 
 effect of a contract ; if he chooses to disregard that doubt, 
 he cannot afterwards complain of being taken at his word. 
 
 {q) Per Lord Chelmsford, C. 
 Wythes V. Labouchere, 3 De G. & J. 
 593, 601. 
 
 (>•) rut V. Smith, 3 Camp. 33. 
 
 (.s) 13 M. k W. ()23, 14 L. J. Ex. 
 
 151. 
 
 [t) 3foHon V. Cai)iro/ix,2Bx. 487, 
 in Ex. Ch. 4 Ex. 17 ; 18 L. J. Ex. 
 68, 350 ; Matthews v. Baxter, L. E. 
 8 Ex. 132.
 
 AS TO LEGAL EFFECT. 419 
 
 He is in a manner estopped from saying that by reason of 
 the other's incapacity there is no contract which can be 
 made binding on either of them. The law says to him : 
 You oifer to contract with a man whom you have reason 
 to believe incapable of contracting : and if he chooses to 
 hold you to the bargain when he comes to his right mind, 
 it does not lie in your mouth to say there was no contract 
 because he did not understand what he was about. If 
 you thought he did imderstand it, you cannot complain of 
 being in the same situation as if such had been the fact. 
 If you knew he did not understand it, then (unless you 
 meant to commit a fraud by taking an unfair advantage of 
 his condition) you were careless enough to take the risk 
 of his repudiating the contract, or you thought the mere 
 chance of a ratification worth having ; still less can you 
 complain in that case that the contract is ratified instead 
 of being repudiated. And you have the correlative benefit 
 of being able to sue on the contract if it is ratified («), or 
 even if it is not repudiated within a reasonable time. 
 
 There may also be a fundamental error affecting not Error as 
 the whole substance of the transaction, but only its legal character 
 character. It is apprehended that on principle a case of of the 
 this kind must be treated in the same way as those we tion. 
 have already considered ; that is, if the two parties to a 
 transaction contemplate wholly different legal effects, there 
 is no agreement : but this will not prevent an act done by 
 either j)arty from having any other effect which it can 
 have by itself and which it is intended to have 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 {x), but 
 
 («) L. R. 8 Ex. 132. L. J. at p. 896 : where it was held 
 
 (.r) But if B. communicates to A. that an advance at first intended to 
 
 his intention of treating the money be a gift had in this way been 
 
 as a loan, and A. assents, then there turned into a loan, and was a good 
 
 is a good contract of loan. See Bill consideration for a promissory note 
 
 V. 7rJ/«ow, 8 Ch. 888 ; per Mellish, subsequently g-iven for the amoimt. 
 
 E e2
 
 420 MISTAKE. 
 
 the ownership of the money is not the less effectually 
 transferred to B, (y). Or " if A. sends a case of wine to 
 B. intending to sell it, but fails to communicate his inten- 
 tion, and B. honestly believing it to be a gift consumes 
 it, there is no ground for holding B. to be responsible for 
 the price either in law or equity, if he be blameless for the 
 mistake " (z). 
 
 We have seen however (p. 402) that mistake as to any 
 particular effect of a contract depending on its true con- 
 struction does not discharge the contracting party, or 
 entitle him to act upon his own erroneous construction. 
 
 Error i;j B. Ed'O)' as to tJw po'sou of the other iKirty. 
 
 pel so . Another kind of fundamental error is that which relates 
 
 to the person with whom one is contracting. Where it is 
 material for the one ^Darty to know who the other is, this 
 prevents any real agreement from being formed {a). 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 railway 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 
 hardly be any question of this kind. In principle how- 
 
 (y) Savigny, Syst. 3. 269; D. 44. to/>, L. E. 2 C. C. K. 38, 44 ; Kiiit/s- 
 
 7. de o. et a. 3 ^ 1. Non satis autem fo)-cl v. Merrij (Ex. Ch.) 1 H. & N. 
 
 est dautis esse numos et fieri ac- 503, 26 L. J. Ex. 83. 
 
 cipientis, ut obligatio nascatiir, sed (s) Benjainui on Sale, 373 ; cp. 
 
 etiam hoc animo dari et accipi ut the somewhat shnilar ease put by 
 
 obHgatio constituatur. Itaque si Braniwell, B. in Reg. v. Middleton, 
 
 quis pecuiiiam sixam donandi causa L. R. 2 C. C. R. at p. 56, and Hills 
 
 dederitmihi,qiiamquamet donautis v. Sncll, 104 Mass. 173. 
 
 fuei'it, et mea fiat, tamen non obh- («) Savigny, Syst. 3. 269 ; Po- 
 
 gabor ei, quia non hoc inter nos thier, Obi. § 19, adopted by Fry, J. 
 
 actum est. As to the transfer of in Smith v. IVheatcroft, 9 Ch. D. at 
 
 the property being effectual cp. D. p. 230. If I take a loan from A. 
 
 41. 1. de acq. ror. dom. 36. The thinking he is B.'s agent to lend 
 
 reason is that to that extent there me the money \yhen he is in truth 
 
 is an intention free from error on C's there is no contract of loan, 
 
 the one part and an assent on the though C may get back his money 
 
 other. But a wholly mistaken by condictio .• D. 12. 1. dc reb. 
 
 handing over of money or goods cred. 32. 
 passes no property : Jic'(/. v. 3Iiddle-
 
 ERKOR AS TO PERSON. 421 
 
 ever, the intention of a contracting party is to create an 
 obligation between himself and another certain person, 
 and if that intention fails to take its proper effect, it 
 cannot be allowed to take the different effect of involving 
 him without his consent in a contract with some one else. 
 
 There is a curious modern case on this point in the Boulton v. 
 Court of Exchequer. An order for goods had been 
 addressed by the defendants to a trader named Brockle- 
 hurst, who without their knowledge had transferred his 
 business to the plaintiff Boulton. The plaintiff supplied 
 the goods without notifying the 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 defendants' offer 
 was not addressed to him ; nor yet an implied one, for 
 the goods were accepted and used by the defendants on 
 the footing 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 {b) . 
 
 A similar case was Mitchell v. Lapage (not cited in Mitchell 
 Boulton V. Jones {c). The action was assumpsit for not ^- I^^Pf^o©- 
 accepting goods. A change had taken place in the seller's 
 firm, and the broker had by mistake given the old name 
 instead of the new one. Gibbs, C. J., ruled as follows : 
 
 [b) Boulton V. Jones, 2. H. & N. tended that according to general 
 
 564, 27 L. J. Ex. 117. Mr. Ben- usage a proposal addressed to a 
 
 jamin has criticized this casein his trader at his place of business for 
 
 treatise on Sale (p. 372). I am the supply of goods in the way of 
 
 unable to follow hun in finding any that business is, in the absence of 
 
 ground of equitable as distinct anything showing special personal 
 
 from legal claim on the plaintiff's considerations, a proposal to who- 
 
 side. And see Boston Ice Co. v. ever is carrying on the same busi- 
 
 Fotier, 123 Mass. 28, where Boulton ness continuously at the same place 
 
 V. Jones was followed in its full ex- and under the same name ? 
 
 tent. But might it not be con- (c) Holt N. P. 253.
 
 422 MISTAKE. 
 
 " I agree with the defendant's counsel that he cannot be 
 prejudiced by the substitution. Metcalfe [the broker] has 
 misdescribed the names of his principals ; and if by this 
 mistake the defendant was induced to think that he entered 
 into a contract with one set of men and not with any other, 
 and if owing to the broker he has been prejudiced or ex- 
 cluded from a set-off, it would be a good defence." It 
 appeared however on the facts in this case that the defen- 
 dant had elected to treat the contract as subsisting after 
 notice of the change : and the contract seems to have been 
 considered as voidable at the option of the buyer rather 
 than as absolutely void. Again, if a man enters into a 
 continuing contract with one of two partners alone, not 
 knowing of the existence of the partnership, and the 
 partner with whom the contract was made retires from the 
 business, then the continuing and previously undisclosed 
 partner cannot insist on the further performance of the 
 contract even by joining the name of the original con- 
 tractor with his own as plaintiff. When it had become 
 impossible for the contract to be performed by the person 
 with whom it was actually made, " the defendant had a 
 right to object to its being performed by any other 
 person" [cl). This case was referred to with approval in 
 Humble v. Hnnter ie), where Lord Denman said; "You 
 have a right to the benefit you contemplate from the 
 character, credit, and substance of the party with whom 
 you contract." On like grounds it has been held by a 
 majority of the Court of Appeal that when a pm'chaser 
 orders goods of a manufacturer of such goods who is not a 
 general dealer in them, he is (if there be no agreement or 
 trade custom to the contrary) entitled to have in per- 
 formance of the contract goods of that manufacturer's own 
 make (/). Again, if A. means to sell goods to B., and 
 C, obtains delivery of the goods by pretending to be B.'s 
 
 {(1) Rohson V. Lrmnmond, 2 B. & (e) 12 Q. B. 310, 317. 
 
 Ad. 303 ; per Lord Tenterden, {/) Johnson v. Itaylton, 7 Q. E. 
 
 C. J. p. 307. D. 438 {dhs. Bramw'ell, L. .1.)
 
 AS TO PERSON : SATISFACTION BY STRANGER. 423 
 
 ■ agent to make the contract and receive the goods (f/) , or if 
 C, Av]io is a man of no moans, 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 (h), 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. 
 
 Whether any analogous doctrine applies to deeds is a Probably 
 question on which there does not seem to be any clear cipk"^" 
 authority. We have seen that if a man seals and delivers cannot be 
 (at any rate without culpable negligence) a parchment to deeds. 
 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 llioifer v. Walters (/) is cer- 
 tainly adverse to such a view. 
 
 It is on the same principle that a party to whom any- Satisfac- 
 thing is due under a contract is not bound to accept satis- ^^^^ ^ ^ 
 
 p i stranger 
 
 faction from any one except the other contracting party, in to the 
 
 contract. 
 
 {g) Hardman v. Booth, 1 H. & C. perty, no rigbt or interest can pos- 
 
 803, 32 L- J. Ex. 105 ; cp. Kings- sibly pass by such an instrument. 
 
 ford V. Merry, 1 H. & N. 503, 26 It is not a deed. It makes no 
 
 L. J. Ex. 83 ; IloUins v. Foivlcr, L. difference in law that A. had the 
 
 R. 7 H. L. 757, 763, 795. same name as B. if the false per- 
 
 (/«) Lindsay v. Cundy, Cimdy v. sonation is established ; stiU the 
 
 Lindsay, 3 App. Ca. 459 ; Ex parte instrument is not a deed, and that 
 
 Barnett, 3 Ch. D. 123. ])lea would be a complete answer 
 
 (() 7 Ch. 75 ; supra, p. 417. On by B. or any one claiming through 
 
 the other hand, " if A. personating him:" Cooper v. Vesey, 20 Ch. D. 
 
 B. executes a deed in the name of 611, 623 (Kay, J. ; affd. in C. A. ib. 
 
 B. purporting to convey B.'s pro- 627).
 
 ment of 
 contracts 
 
 424 MISTAKE. 
 
 person wliere the nature of the contract requires it (/r), or 
 otherwise by himself, his personal representatives, or his 
 authorized agent : and it has even been thought that the 
 acceptance of satisfaction 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 (/), 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 («?). But these 
 refinements have not been received without doubt {n) : and 
 it is submitted that the law cannot depart in substance, 
 especially now that merely technical objections are so little 
 favoured, from the old maxim "If I be satisfied it is not 
 reason that I be again satisfied " (o). 
 Assig-n- So far the rule of common law. The power of assign- 
 
 ing contractual rights which has long been 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 
 limits set to this power (which we have abeady considered 
 under another aspect) {j)) may be again shortly referred to 
 as illustrating the same principle. 
 
 G-enerally speaking, the liability on a contract cannot be 
 transferred so as to discharge the person or estate of the 
 
 {k) See Robinson v. Davison, L. as contrary to a well knoAvn prin- 
 
 R. 6 Ex. 209. cipleof law: the civil law being the 
 
 [1) James v. Isaacs, 12 C. B. 791; other way expressly, and mercantile 
 
 Lucas V. Wilkinson, 1 H. & N. 420, law by analogy : at the least assent 
 
 26 L. J. Ex. 13. ought to be presumed (op. 10 Ch. 
 
 (wj) SimpsoHY. Eggingion, 10 Ex. 416). 
 845 (ratification by plea of payment (o) Fitzh. Ab. tit. Barre, pi. 166, 
 
 or at the trial may be good). repeatedly cited in the modern cases 
 
 («) See per Willes, J. in Cooh v. where the doctrine is discussed. 
 
 Lister, 13 C. B. N. S. 594, 32 L. J. Sec in addition to those ah-eady 
 
 C. V. 121, who considered the doc- referred to, Jones v. Ih-oadhiost, 9 
 
 trine laid down in Jones v. Broad- C. B. 193, Bclshaw v. Bush, 11 C. 
 
 hurst (next note) that payment by B. 191, 267. 
 a stranger is no payment till assent, {p) Ch. V., supra, p. 206, sqq.
 
 RIGHTS FOUXDEl) ON PEKSOXAL CONFIDENCE. 425 
 
 original contractor, unless the creditor agrees to accept the 
 liability of another person instead of the first {q). 
 
 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. 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 action . . . 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 " (r), and the 
 various consequences of its application in the equitable 
 doctrines as to priority being gained b}^ notice. 
 
 Affain, rig-hts arising out of a contract cannot be trans- Rights 
 ferred if they are coupled with liabilities, or if they involve q^ pej.. 
 a relation of personal confidence such that the party whose sonal con- 
 agreement conferred those rights must have intended them cannot be 
 to be exercised only by him in whom he actually confided, ^s'^ioned. 
 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 not, the other partners may 
 treat it as a ground for dissolution. And a sub-partner 
 has no rights against the principal firm. 
 
 In the same way a contract of apprenticeship is pn'ina 
 facie a strictly personal contract with the master ; this 
 construction may be excluded however by the intention 
 
 {q) See p. 193, above. The ex- not altogether lost sight of the 
 
 captions to this are but partial. principles of the general law : for 
 
 Thus the assignor of leaseholds (1) the transferor is not imme- 
 
 remains liable on his express diatelydischarged:- (2) thecompany 
 
 covenants: 1 Wms. Saund. 298. A is not always bound to register the 
 
 stronger case is the transfer of transfer. 
 
 shares in a company not fully paid (r) Per Willes, J. De NichoUs v. 
 
 up : but the special statutory law Saunders, L. R. 5 C. P. at p. 594. 
 governing these transactions has
 
 426 
 
 MISTAKE. 
 
 of the parties, e. rj. if the master's executors are expressly 
 named (s), or by custom [t). 
 
 So if an agent appoints a sub-agent without authority, 
 the sub-agent so appointed is not the agent of the principal 
 and cannot be an accounting party to him {u). A peculiar 
 case involving a similar question was Stevens v. Bennuig [x). 
 It was there held that a publisher's contract with an author 
 was not assignable without the author's consent. The 
 plaintiffs, 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 agree- 
 ments with authors, &c., in which the assignors, with 
 whose firm the author had contracted, were interested. It 
 was decided (1) 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 mth it : (2) that it 
 did not operate as an assignment of the contract, because 
 it was a personal contract, and it could not be indifferent 
 to the author into whose hands his 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) . 
 
 Peculi- The law of agency, which we have abeady had occasion 
 
 law of ^'^ to consider (:;), presents much more important and peculiar 
 agency. exceptions. Here again we find that the limitations under 
 
 («) Cooper V. Simmons, 7 II. & N. 
 707, 31 L. J. IVLC. 138. 
 
 {() Bac. Abr. Master and Ser- 
 vant, E. 
 
 (?<) Cartivright v. Hateley, 1 Ves. 
 jun. 292. Cp. Indian Contract Act, 
 1872, s. 193. 
 
 {x) 1 K. & J. 168, 6 D. M. G. 
 223 ; followed in Hole v. Bradbury, 
 12 Ch. D. 886. 
 
 (y) See 1 K. & J. at p. 174, 6 D. 
 M. G. at p. 229. 
 
 (s) Ch. II., p. 95, above.
 
 EKROU AS TO SUBJECT-MATTElt. 427 
 
 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. 
 
 C. Error m to the suhjcct-matter. EiTor as 
 
 There may he fundamental error concerning : matter. 
 
 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 contract in this way for something ; 
 but is this thing that for which he intended to contract ? 
 The rule governing this whole class of cases is fully ex- 
 plained in the judgment of the Court of Queen's Bench in 
 the case of Kennedy v. Panama, ^x., Mail Company {a). Kennedy 
 There were cross actions, the one to recover instalments ^^a '&c.' 
 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 shareholder was "that the effect of the 
 prospectus was to warrant to the intended shareholders 
 that there really was such a contract as is there repre- 
 sented (b), and not merely to represent that the company 
 bona fide believed it ; and that the difference in substance 
 between shares in a company with such a contract and 
 shares in a company whose 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 indepen- 
 
 (fl) L. E. 2 Q. B. 580. behalf of the Government, which 
 
 (i) A contract with the post- turned out to be beyond his au- 
 master- general of New Zealand on thority.
 
 428 MISTAKE. 
 
 dentlj of fraud, on the ground that he had applied for one 
 thing and got another" (c). 
 
 The Coui't allowed it to be good law that if the shares 
 applied for were really different in substance from those 
 allotted, this contention would be right. But it is an 
 important part of the doctrine, both in our own law and in 
 the civil law {d), that the difference in substance must be 
 complete. In the case of fraud, a fraudulent represen- 
 tation 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 description (e) . It was at most 
 like the purchase of a chattel with a collateral warranty, 
 where a breach of the warranty gives an independent right 
 of action, but in the absence of fraud is no ground for 
 rescinding the contract (_/). 
 
 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 shareholder if exercised within a reason- 
 able time : this, although in strictness an anom.aly, is 
 required for the protection of the company's creditors, who 
 are entitled to rely on the register of shareholders (g). 
 
 We also reserve for the present the question how the 
 legal result is affected when the error is due to a repre- 
 sentation made by the other party. The exposition of the 
 general principle, however, is not the less valuable : and 
 
 (c) Per Cur. at p. 586. preference which in fact the com- 
 
 (d) P. 588, citing D. 18. 1. do pany had no power to give to it, 
 cent. empt. 9, 10, 11. By a clerical this does not amoimt to a generic 
 error the fragment of Ulpian (A. t. difference between the thing con- 
 1. 14) " Si aes pro aiiro veneat, non tracted for and the thing purchased: 
 valet," (S-'C, is ascribed to Pardus in EagUfifleld v. Marquis of London- 
 the report. derrij, 3 Ch. D. 693. 
 
 (e) So, where new stock of a (/) Street v. BUvj, 2 B. & Ad. 
 company is issued and purchased on 456. 
 
 the supposition that it will have a {(/) Sec cases cited, -p. 433, infra.
 
 AS TO SPECIFIC THING. 429 
 
 we now proceed to give instances of its application in the 
 branches already mentioned. 
 
 a. Error as to the specific thing (in corpore). A striking Sub- 
 modern case of this kind is liatlies v. Wichelhaus {//). The EitoI-"!!' '' 
 declaration averred an agreement for the sale by the corpore. 
 plaintiff to the defendants of certain goods, to wit, 125 ous name, 
 bales of Sui-at cotton, to arrive ex " Peerless" froDi Bonihaij, 
 and arrival of the goods by the said ship : Breach, non- 
 acceptance. 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 different from that 
 which he entered into " (/). 
 
 With this may be compared FMllips v. BistoIU (/.•). The 
 principal question was whether there had been a sufficient 
 acceptance within the Statute of Frauds of certain goods 
 bought at an auction : the decision was that under the 
 circumstances this ought to have been left as a question of 
 fact to the jury, and that there must be a new trial. The 
 jury had found that there was no mistahe (no other ques- 
 tion having been left to them) : and it seems to have been 
 admitted that if there had been an innocent mistake on 
 the part of the buyer as to the lot being sold or the price 
 he was agreeing to give, there would even independently 
 of the Statute have been no contract (/). In Matins y. 
 
 (/i) 2 H. & C. 906 ; 33 L. J. Ex. an implied warranty of title on a 
 
 IGO. sale of chattels {Eklilwlz v. Bannis- 
 
 ii) Per Pollock, C.B. and Martin, tcr, 17 C. B. N. S. 708, 34 L. J. C. 
 
 B. 2 H. & C. at p. 907. P. 105 ; see Benjamin on Sale, G21 
 
 (/i-) 2 B. & C. 511. sqq.) is not witliout its analog-y to 
 
 (/) The question whether there is this class of cases. Cp. the judg-
 
 430 
 
 MISTAKE. 
 
 Parcels 
 included 
 by mis- 
 take. 
 
 Freeman {m) specific performance was refused against a 
 purchaser who 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 recovered at law. The case of Cakerley v. Wil- 
 liams {))) shows however that the same principle has been 
 fullj 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. "It is impossible 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 a 
 
 part only The question is, does it appear to 
 
 to have been the common purpose of both to have con- 
 veyed this part?" So in Harris v. Pepj)erell {o), where 
 ^eppeie , ^^^^ 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 
 Eomilly, acting in accordance with his own former deci- 
 sion in Garrard v. Frankel (p), gave the defendant an 
 option to have the whole contract annulled or to take it in 
 the form which the plaintiff intended. The converse case 
 occurred in Bloomer v. Sjiittle (q), 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 a supposed offer 
 which was never really made, nor yet require the defen- 
 dant to accept the real offer which was never effectually 
 communicated to him, and which he perhaps would not 
 
 Harris v. 
 
 ment of Willes, J. (dissenting) in 
 B(i(jHcleij V. Ilau'lcy, L. R. 2 0. P. 
 62o, 620, "that "the thing which 
 the defendant sold was a boiler and 
 not a lawsuit." 
 
 (w) 2 Kee. 25. 
 
 («) 1 Ves. juu. 210. 
 
 (o) 5Eq. 1. 
 
 li)) 30 Beav. 445. 
 
 {q) 13 Eq. 427.
 
 AS TO AMBlGUOrS TERMS. 431 
 
 have consented to accept : but will jiut the parties in the 
 same position as if the original offer were still open (;•). 
 
 The Court having come to the conclusion that the 
 parties did not rightly understand each other, "it is not 
 possible without consent to make either take what the 
 other has offered " (s). 
 
 The case of Dacre v. Gorges (t), though shortly reported 
 and no reasons given for the judgment, appears to belong 
 to this class. The plaintiff and others, tenants in common, 
 had agreed upon a partition, the allotments to be ascer- 
 tained on a valuation by surveyors. Certain land to which 
 the plaintiff was solely entitled was by mistake included 
 in the valuation and in the allotment made to the plaintiff, 
 so that the plaintiff thereby got less than her due share of 
 the rest. The allotments were conveyed according to this 
 distribution, and the mistake not discovered till several 
 years later. Specific restitution was then impossible, parts 
 of the other allotments having been sold. But a suit was 
 instituted for a money compensation against the only one 
 of the other tenants in common who refused it, and it was 
 held a plain ease for relief. 
 
 Obviously there was never any agreement on the plain- 
 tiff's part to be bound by an allotment which treated her 
 sole property as common property. 
 
 Similarly, " where the terms of the contract are am- Ambigu- 
 biguous, and where, by adopting the construction put upon °f^^. *®^°^^ 
 them by the plaintiff, they would have an effect not con- tract. 
 
 (?•) For the principle of these de- fact was of a different bulk) did 
 
 cisions compare Clours v. Higginson not go to the essence of the con- 
 
 (next note) and Leyland v. Illmg- tract : the correspondence of the 
 
 w.'o/-<A (2D. F. J. 252-3). McKenzie bulk to the sample was only a 
 
 V. Ilcsketh, 7 Ch. D. 675, well shows collateral tei'm which the purchaser 
 
 the distinction between this class of might waive if he chose. The 
 
 cases and those where a true con- vendors, therefore, were at all 
 
 tract is carried out with abatement events not entitled to rescind the 
 
 or compensation. In Scotf v. Little- contract unconditionally. 
 dale, 8 E. & B. 815, 27 L. J. Q. B. (s) Cloices v. Higginson, I Ves. & 
 
 201 (a case on an equitable plea), B. 524, 535. 
 
 the point of mistake [viz. the [t) 2 S. & St. 454 : it does not 
 
 vendors of a specific cargo showing apx^ear how the lapse of time (eleven 
 
 the purchaser a sample which in years) was explained.
 
 432 MISTAKE. 
 
 templated by the defendant, but would compel him to 
 include in the conveyance property not intended or be- 
 lieved by him to come within the terms of the contract," 
 and the j/laintiff refuses to have the contract executed in 
 the manner in which the defendant is willing to complete 
 it, specific performance cannot be granted {u). 
 
 When the purchaser erroneously but not unreasonably 
 supposes a portion of property to be included which is of 
 no considerable quantity, but such as to enhance the value 
 of the whole, this is a " mistake between the parties as to 
 what the property purchased really consists of" so material 
 that the contract will not be enforced {x) . 
 
 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 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 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 (s). 
 
 As to It was held in Ship's case («) and others following it {b) 
 
 s^res: ^-j^^^ ^ material variance between the objects of a company 
 
 &c. as described in the prospectus and in the memorandum of 
 
 association will entitle a person who has taken shares on 
 
 the faith of the prospectus to say that the concern actually 
 
 started is not that in which he agreed to become a partner, 
 
 and to have his name removed from the register. But 
 
 Not ap- these decisions have been disajiproved of in the House of 
 
 p-ove in LQj,^-[g Qjj ^]^Q gpound that " persons who have taken shares 
 
 in a company are bound to make themselves acquainted 
 
 with the memorandum of association, Avhich is the basis 
 
 {/() Baxcndale v. Scale, 19 Beav. {z) Alranhy v. Kinnaird, 2 Mac. 
 
 601. Cp. per Lord Eldon, Stewart & G-. 1, 8. Cp. GriJ/ii/isr. Jones, 15 
 
 V. AUiston, 1 Mer. 26, 33 ; and per Eq. 279. 
 
 Sir W. Gi-ant, lUygimon v. Clowes, [a) 2 1). J. S. 544. 
 
 15 Ves. 51G, 524. {b) Webster's cage, 2 Eq. 741; 
 
 (./•) JkxmjY. Hancock, G Ch. 1, 14. Steward s cixse, 1 Ch. 574; see Lind- 
 
 (if's Tamplin v. James {G. A.) 15 ley on Partnership, 1. 109-121. 
 
 Ch"; D. 215.
 
 materia]. 
 
 AS TO KIND. 433 
 
 upon wliicli the company is established" (r). The rights 
 and liabilities of persons taking shares in companies are 
 indeed altogether 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. 
 
 It has also been attempted to dispute the validity of a Error in 
 transfer of shares because the transferor had not the tldshino- 
 shares corresponding to the numbers expressed in the Ji'imbtrs 
 
 OX sll3,rGS 
 
 transfer, although he had a sufficient number of other not 
 shares in the company ; but it was held that the trans- 
 feree, who had in substance agreed to take fifty shares in 
 the company, could not set iip the mistake as against the 
 company's creditors (d). " The numbers of the shares are 
 simply directory for the purposes (e) 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 No. 1 is not distinguishable from 
 share No. 2 in the same way as a grey horse is distin- 
 guishable from a black horse " (,/'). 
 
 /3. Error as to kind, quantity, or quality of the thing. En-or as 
 
 . . , 1 1 • *° kind, 
 
 A material error as to the kind, quantity, or quality of &:c. 
 a subject-matter which is contracted for by a generic 
 description (whether alone or in addition to an individual 
 description) may make the agreement void, 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. 
 
 (c) Per Lord Chelmsford, Oakcs be heard to say that he did not 
 
 V. Turq iia >hI, Jj. E,. 2 H. L. 325, mean to take shares in au unlimited 
 
 351. See ace. Xc»t v. Freehold Land company : Ferret fs ca. 15 Eq. 250. 
 
 Co. 3 Ch. 493 ; Hare's ca. 4 Ch. (d) L/d's ca. 7 Ch. 485. 
 
 503 ; Chains' s ca. 6 Ch. 266 : all {c) Sic in the report, 
 
 she-wing that the contract is in such (/) Or house No. 2 in a street 
 
 cases not void, but only voidable at from house No. 4 in the same street, 
 
 the option of the shareholder, which though of the same description and 
 
 must be exercised within a reason- in equally good repair : Leach v. 
 
 able time. So, a person who applies Mulleit, 3 Car. & P. 115, Dart, V. 
 
 for shares in a company not de- & P. 139. 
 scribed as limited cannot afterwards 
 
 P. F F
 
 434 
 
 MISTAKE. 
 
 Genus : 
 Thornton 
 r. Kemp- 
 ster. 
 
 In Thornton v. Kcmpster (rj) the common 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 St. 
 Petersburg 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 agreed 
 that the one should buy and the other accept the same 
 thing; consequently there was no agreement subsisting 
 between thorn." 
 
 In a case of this kind however there is not even an 
 agreement in terms between the proposal and the accept- 
 ance. 
 Quantity. A curious case of error in quantity happened in Henkel 
 V. P(q)e {h), where by the mistake of a telegraph clerk an 
 order intended 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 
 delivered to him. The defendant had accepted three of 
 the fifty rifles 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 how- 
 ever 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 " (/). 
 
 The principle of error in quantity preventing the for- 
 mation of a contract is applicable to an error as to the 
 
 Price. 
 
 {ff) 5 Taunt. 786. 
 
 (A) L. R. G Ex. 7. 
 
 (0 Levi/ V. GrccH, 8 E. & B. .575, 
 in Ex. Ch. 1 E. & E. 969 ; 27 L. J. 
 Q. B. 111,28 ib.310; perBylcs, J. 
 1 E. & E. at p. 976 : and cp. Jlart 
 V. Milh, 15 M. & W. 85, where a 
 
 new contract was implied as to part 
 of the goods which was retained : 
 but in that case the quality as well 
 as the quantity of the goods sent 
 was not in coiifonuity with the 
 order.
 
 AS TO PRICE. 435 
 
 price of a thing sold or hired (/.•). As there cannot be 
 even the appearance of a contract when the acceptance 
 disagrees on the face of it with the proposal, this question 
 can arise only when there is an unqualified acceptance of 
 an erroneously expressed or understood proposal. If the 
 proposal is misunderstood by the acceptor, it is for him to 
 show that the misunderstanding was reasonable. " Where 
 there has been no misrepresentation, and where there is 
 no ambiguity in the terms of the contract, the defendant 
 cannot be allowed to evade the performance of it by the 
 simple statement that he has made a mistake" (/). A. 
 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, w^ho meant to invite offers 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 {i/i). 
 
 If, on the other hand, the proposal is by accident 
 wTongly expressed, the proposer must show that the 
 acceptor could not reasonably have supposed it in its 
 actual form to convey the proposer's real intention. This 
 occurred in Webster v. Cecil (n), where the defendant sent 
 a wTitten offer to sell property and wrote 1,100/. for 
 1,200/. by a mistake in a hurried addition of items per- 
 formed 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 once gave 
 notice of it. It appeared that the plaintiff had reason to 
 know the real value of the property. Under these cir- 
 cumstances specific performance was refused. The case is 
 
 (/i) D. 19. 2. locati, 52. Si decern ductio quam quanti ego j)nta\d. 
 tibi locem fundum, tu autem exis- (/) Tamplin v. James, 15 Ch. D. 
 
 times quinque te conducere, nihil 215, 217 (Baggallay, L. J.) 
 agitui'. Sed et si ogo miuoris me {m) McKenziev. Hesketh,! Cli.T). 
 
 locare sensero, tu pliu-is te con- 675. 
 ducere, utiqiic nou pluris erit con- {ii) 30 Beav. G2. 
 
 r r 
 
 o
 
 436 
 
 MISTAKE. 
 
 explained by James, L. J. as one " where a person snapped 
 at an offer wliicli he must have perfectly well known to 
 be made by mistake " (o). 
 
 Material 
 attribute. 
 
 Conditions 
 necessary 
 to avoid 
 transac- 
 tion on 
 tMs 
 ground. 
 
 But sometimes, even when the thing which is the 
 subject-matter of an agreement is specifically ascertained, 
 the agreement 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 tlio 
 description by which the thing was contracted for. If this 
 is so, the thing as it really is, namely, without that quality, 
 is not that to which the common intention of the parties 
 was directed, and the agreement is void. 
 
 An error of this kind will not suffice to make the trans- 
 action void unless — 
 
 (1) It is such that according to the ordinary course of 
 deaUng and use of language the difference made by the 
 absence of the quality wrongly supposed to exist amounts 
 to a difference in kind {p) ; 
 
 (2) and the error is also common to both parties. 
 Thus we read " Mensam argento coopertam mihi iijiio- 
 
 ranti pro solida vendidisti mprudcns ; nulla est emptio, 
 pecuniaque eo nomine data condicetur" (q). 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 " (s). This, however, is not to be 
 taken too largely. What does pro auro, as and for gold, 
 imply as 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, 
 
 (o) TampliH V. James, 15 Ch. D. 
 at p. 221. 
 
 (;;) Savigny, Syst. ^ 137 (3. 283). 
 
 (//) D 18. 1. de cont. empt. 41 § 1. 
 
 (>•) D. cod. tit. 14, cited and 
 adopted by the Court of Q. 13. in 
 
 Kennedy v. Panama Mail, ^-c. Co., 
 supra. 
 
 (,s) Per Lord Campbell, C. J. 
 Gompertz v. Bnrtlett, 2 E. & B. 849, 
 854, 23 L. J. Q. B. 65.
 
 AS TO ESSENTIAL QUALITY. 437 
 
 but this specific vessel, being golden. Then, and not other- 
 wise, 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 buyer. For if both 
 parties have been iu 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 trans- 
 action, as if the vessel supposed by the fraudulent seller 
 to be of worthless base 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 innocent 
 representation made by the seller. This seems to be 
 assumed by the language of the Court in Kennedy v. 
 Panama, S^c. Mall Compainj [f). "We shall recur to this 
 point presently. Or in an ordinary case the buyer may 
 choose to treat the seller's 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 com- 
 pensate the purchaser for breach of the warranty, but the 
 sale is not even voidable. For the existence of a separate 
 warranty shows that the matter of the warranty is not a 
 condition or essential part of the contract, but the inten- 
 tion of the parties was to transfer the property in the 
 specific chattel at all events. Whether a particular affir- 
 mation as to the quality of a specific thing sold be only a 
 warranty, or the sale be " conditional, and to be null if the 
 affirmation is incorrect," is a question of fact to be deter- 
 mined by the circumstances of each case {a). 
 
 {t) L. R. 2 Q. B. 580, 587, p. 413, Sm. L. C. 29 sqq. : ncyicorth r. 
 
 supra. Hutchinson, L. R. 2 Q. B. 447 ; 
 
 {u) See "per Wightma^n, J. Gurne)/ Azhnar v. CascUa, Jj. E. 2 C. P. 
 
 V. Womerslaj, 4 E. & B. 133, 142, 24 431, 677. The Roman law is the 
 
 L. J. Q. B. 46 : the cases collected same as to a sale with warranty ; 
 
 in the notes to Cutter v. FoiccU, 2 D. 19. 1. de act. empt. 21 § 2.
 
 438 
 
 MISTAKE. 
 
 Error 
 must be 
 common. 
 
 Smith V. 
 Hughes , 
 
 Accordingly, when the law is stated to be that " a party 
 is not bound to accept and pay for chattels, unless they 
 are really such as the vendor professed to sell, and the 
 vendee intended to buy" (.r), the condition is not alternative 
 but strictly conjunctive. A sale is not void merely because 
 the vendor professed to sell, or the vendee intended to 
 buy, something of a different kind. It must be shown 
 that the object was in fact neither such as the vendor pro- 
 fessed to sell nor such as the vendee intended to buy. 
 
 And so in the case supposed the sale will not be in- 
 validated by tlie mistake of the buyer alone, if he thinks 
 he is buying gold ; not even if the seller believes him to 
 think so, and does nothing to remove the mistake, pro- 
 vided his conduct does not go beyond passive acquiescence 
 in the self-deception of the buyer. In a case {//) where 
 the defendant bought a parcel of oats by sample believing 
 them to be old oats, and sought to reject them when he 
 found they were new oats, it was held that " a belief on 
 the part of the plaintiff that the defendant was making a 
 contract to buy the oats of which he offered hmi a sample 
 under a mistaken belief that they were old would not 
 relieve the defendant from liability unless his mistaken 
 belief was induced by some misrepresentation of the 
 plaintiff or concealment by him of a fact which it became 
 his duty to communicate. In order to relieve the de- 
 fendant it was necessary that the jury should find not 
 
 expld. by Savigny, Syst. 3. 287. 
 The whole of Savigny' s admirable 
 exposition of so-called o-ror in sub- 
 stantia in §§ 137, 138 (3. 276, sqq.), 
 deserves careful study. Of course 
 the conclusions in detail are not 
 always the same as in our law : and 
 the fundamental difference in the 
 rules as to the acttial transfer of 
 property in goods sold (as to which 
 sec Elackbarn on tlie Contract of 
 Sale, Part 2, Ch. 3) must not be 
 overlooked. But this does not affect 
 the usefulness and importance of 
 the G^eueral analogies. 
 
 {x) Per Cur. Hall v. Co/ider, 2 C. 
 B. N. S. 22, 41, 26 L. J. C.P. 138, 
 143. 
 
 (y) Smith v. Hughes, L. R. 6 Q. 
 B. 597 : per Cockbum, C. J. p. 603; 
 per Hannen, J. p. 010. The some- 
 what refined distinction here taken 
 does not seem to exist in the civil 
 law. D. 19. 1. de act. empt. 11 § 5 : 
 Savigny, 3. 293, according to whom 
 it makes no difference whether 
 there be on the part of the vendor 
 ignorance, passive knowledge, or 
 even actual fraud : the sale being 
 wholly void in any case.
 
 AS TO QUALITY. 439 
 
 merely that the plaintiff believed the defendant to believe 
 that ho was buying old oats, but that he believed the 
 defendant to belie\o that ho, the plaintiff, was contracting 
 to sell old oats." " There is no legal obligation on the 
 vendor to inform the piu-chaser that he is under a mistake 
 not induced by the act of the vendor " (~) ; and therefore 
 the question is whether we have to do merely with a 
 motive operating on the buyer to induce him to buy, or 
 with one of the essential conditions of the contract (a). 
 " Videamus, c[uid inter ementem et vendentem actum 
 sit " (b) : " the intention of the parties governs in the 
 making and in the construction of all contracts " (c) ; this 
 is the fundamental rule by which all questions, even the 
 most refined, on the existence and nature of a contract 
 must at last come to be decided. 
 
 Another curious case of this class is Cox v. Prentice (d). ^^^ ^.* 
 
 IrlTGIlijlCG 
 
 The declaration contained a count in assumpsit as on a 
 warranty, and the common money counts. The nature of 
 the material facts will sufficiently appear by the following 
 extract from the judgment of Bayley, J. : — 
 
 "What did the phxintiffs bargain to tiiy and the defendants to sell? 
 They both understand [.sic] that the one agreed to buy and the other to 
 sell a bar containing such a quantity of sUver as should appear by the 
 assay, and the quantity is fixed by the assay and paid for ; but throug-h 
 some mistake in the assay the bar tiu-ns out not to contain the quantity 
 represented but a smaller quantity. The plaintilff therefore may rescind 
 the contract and bring money had and received, having offered to return 
 the bar of silver." 
 
 And by D ampler, J. : — " The bargain was for a bar of 
 silver of the quality ascertained by the assay-master, and 
 it is not of that quality. It is a case of mutual error." 
 These judgments went farther than was necessary to the 
 
 {z) Ibid, per Blackburn, J. at {c)Vqx Gnv. Banncrmau v.White, 
 
 p. 607. 10 C. B. N. S. 844, 860, 31 L. J. 
 
 (a) Ibid, per Cockburn, C. J. C. P. 28, 32. 
 
 [h) Juliauus in D. 18. 1. de cont. {d) 3 M. & S. 344. 
 
 empt. 41 pr.
 
 440 MISTAKE. 
 
 decision {e), for a verdict had been taken only for the 
 
 difference in vahie. 
 
 Cases It is important to distinguish from the cases above con- 
 
 descrip- sidered another class where persons who have contracted 
 
 *^°^ o^ for the purchase of real property or interests therein have 
 
 real pro- been held entitled at law (/) as well as in equity {[/) to 
 
 distT- rescind the contract on the ground of a misdescription of 
 
 guished. the thing sold in some particular materially affecting the 
 
 title, quantity, or enjoyment of the estate. In some of 
 
 these cases language is used which, taken alone, might 
 
 lead one to suppose the agreement absolutely void ; and in 
 
 one or two {e.g. Torrance v. Bolton) there is some real 
 
 difficidty in drawing the line. But they properly belong 
 
 to the head of Misrepresentation, or else (which may be 
 
 the sounder view where applicable) {h) are cases where the 
 
 contract is rather broken than dissolved. A man is not 
 
 bound to take a house or land not corresponding to the 
 
 description by which he bought it any more than he is 
 
 bound to accept goods of a different denomination from 
 
 what he ordered, or of a different quality from the sample. 
 
 Mistake or no mistake, the vendor has failed to perform his 
 
 contract. The purchaser may say : " You offered to sell 
 
 me a freehold : that means an unincumbered freehold, and 
 
 I am not bound to take a title subject to covenants" (/) : 
 
 or, "You offered to sell an absolute reversion in fee simple: 
 
 {e) And certainly farther than retical ; for if it be an actual breach 
 
 the civil law: see D. 18. 1. de cont. of contract the piu'chaser can re- _ 
 
 emt. 14, where though a bracelet cover only nominal damages : Bain 
 
 " quae aurea dicebatm- " should be v. FothergUl, L. K. 7 H. L. 158, 
 
 found "magna ex parte aenea," confirming Flnremi v. Thornhill, 2 
 
 yet " venditionem esse constat ideo, W. Bl. 1078. The analogy sug- 
 
 quia am-i aliquid habuit." gested in the text should perhaps 
 
 (/) Fl'iglit V. Booth, 1 Eing. N. be confined to cases wlicre the mis- 
 
 C. 1370, I'hiUtps V. Caldclciir/h, L. R. description goes to matter of title. 
 
 ■1 Q. B. 159. One cannot compare a specific sale 
 
 {(j) Stanton v. TattersaH, 1 Sm. & of land to a non-specific sale of 
 
 a. h2d, Earl of Barltam \. Lcgard, goods: but the contract is not 
 
 34 Beav. 611, Torrance v. Bolton, 8 merely to seU specific land, but to 
 
 Ch. 118. See authorities collected give a certain kind of title. 
 in Dart, V. & P. 114 sqq. [i) r/iUlips v. Caldcleugh, L. R. 4 
 
 {h) The difference is pvu'cly theo- Q. B. 159.
 
 AS TO EXISTENCE OF SUBJECT-MATTER. 441 
 
 I am not to be put off with an equity of redemption and 
 two or tkree Chancery suits (/•). I rescind the contract 
 and claim back my deposit." Cases of this kind, there- 
 fore, are put aside for the present. 
 
 Again, an agreement is void if it relates to a subject- Subject- 
 matter (whether a material subject of ownership or a in'exist- 
 particular title or right) contemplated by the parties as '^^^®- 
 existing but which in fact does not exist. Herein, as 
 before, everything depends on the intention of the parties, 
 and the question is whether the existence of the thing 
 contracted for or the state of things contemplated was or 
 was not presupposed as essential to the agreement. Such 
 is presumed to be the understanding in the case of sale. 
 The Indian Contract Act, s. 20, gives the rule in rather 
 wide language : — 
 
 Where both the parties to an agreement are under a Indian 
 mistake as to a matter of fact essential to the agreement, ^^^ s'^°20 
 the agreement is void. 
 
 The illustrations are these : — lUustra- 
 
 a. A. agrees to sell to B. a specific cargo of goods *^°^®' 
 supposed to be on its way from England to Bombay. It 
 turns out that, before the day of the bargain, the ship 
 conveying the cargo had been cast away and the goods 
 lost. Neither party was aware of these facts. The agree- 
 ment is void. 
 
 This was assumed in the House of Lords and by all the Couturier 
 judges in Couturier v. Iladie (/), where the only question 
 in dispute was on the effect of the special terms of the 
 contract. 
 
 h. A. agrees to buy from B. a certain horse. It turns 
 out that the horse was dead at the time of the bargain, 
 though neither party was aware of the fact. The agree- 
 ment is void {ill). 
 
 (/i-) Torrance v. Bolton, 8 Ch. 118 ; of thia class of cases to the doctrine 
 
 see at p. 124. of impossibility of performance, see 
 
 {l) 5 H. L. C. 673. For a fuller p. 371, above, 
 account of the case, and the relation {m) Pothier, Contrat de Vente, § 4,
 
 442 
 
 MISTAKE. 
 
 We may add a like example from tlie Digest. A. 
 agrees -with B. to buy a bouse belonging to B. Tbe bouse 
 bas been burnt down, but neitber A. nor B. knows it. 
 Here tbere is not a contract for tbe sale of tbe land on 
 wbicb tbe bouse stood, witb compensation or otberwise, 
 but tbe sale is void {n). 
 Same In like manner a sale of sbares in a company will not 
 
 applied to ^^ enforced if at tbe date of tbe sale a petition for winding- 
 sale of •^p j^a,s been presented of wbicb neitber tbe vendor nor 
 tbe pm'cbaser knew (o) . But tbe ignorance of tbe buyer 
 only in similar circumstances does not of itself invalidate 
 tbe sale. It seems bowever tbat tbe sale would be void- 
 able on tbe ground of fraud if tbe seller knew of tbe 
 buyer's ignorance, but tbat sucb knowledge sbould be 
 distinctly and completely alleged (/;). An agreement to 
 take new sbares in a company wbicb tbe company bas no 
 power to issue is also void, and money paid under it can 
 be recovered back (q) . 
 
 c. A. being entitled to an estate for tbe life of B. agrees 
 to sell it to C. B. was dead at tbe time of tbe agreement, 
 but botb parties were ignorant of tbe fact. Tbe agree- 
 ment is void. 
 
 Tbis was so beld at law in Strickland v. Turner [r). 
 
 To an- 
 nuities 
 and life 
 interests. 
 
 cited 5 H. L. C. 678, says: "Si 
 done, ignorant que mon cheval est 
 mort, je le vends a quelqu'un, iln'y 
 aura pas un contrat de vente, f aute 
 d'une chose qvii en soit I'objet." 
 Cp. Code Civ. 1601. "Si au mo- 
 ment de la vente la chose -s'endue 
 etait peiie en totaUte, la vente 
 serait nulle : " = Italian Code,M61. 
 («) Paulus in D. 18. 1. de cent, 
 empt. 57, pr. Domum emi cum 
 eam et ego et venditor combustam 
 ignoremus ; Nerva, Sabinus, Cas- 
 sius, nihil vcnisse quamvis area 
 maneat, pccuniamquc solutam con- 
 dici posse aiunt. C^i. I'apinian, 
 eod. tit. 58. Ai'boribus quoquo 
 vento deiectia vel absiunptis igne 
 dictum est emptionem fundi non 
 videri esse contractam si contem- 
 
 platione illarum arboriim, veluti 
 oliveti, fiuidus compai'abatur, sive 
 sciente sive ignorante venditore. 
 
 (o) Emmersoii's ca. 1 Ch. 433, 
 expld. 3 Ch. 391, per Page Wood, 
 L, J. 
 
 {p) Bowman v. Rtidge, L. E,. 3 Q. 
 B. 689, 697. The Roman lawyers 
 seem to have treated the presump- 
 tion of dolus as absolute if the 
 seller knew the facts. See the con- 
 tinuation of the passages above 
 cited. 
 
 {q) Bank of Hindustan v. Alison, 
 L. R. 6 C. P. 54, in Ex. Ch. ib. 
 222; Ex parle Alison, 15 Eq. 394, 
 9 Ch. 1, 24 ; B.v jjarie Campbell, 
 &c. 10 Eq. 417, 9 Ch. 1, 12. 
 
 (r) 7Ex. 208, 22 L.J. Ex. 116.
 
 AS TO EXISTENCE OF SUBJECT-MATTER. 443 
 
 There, at the date when the sale of a life annuity was 
 completed, the life had dropped unknown to both vendor 
 and purchaser : it was held that the pui-chase-money 
 might be recovered back as on a total failure of con- 
 sideration. So in Hitchcock v. Gldd'oujs («) a remainderman 
 in fee expectant on an estate tail had sold his interest, 
 a recovery having been already suffered unknown to the 
 parties : a bond given to secure the j)urchase-money was 
 set aside. " Here is an estate which if no recovery had 
 been suffered was a good one. Both parties, being equally 
 ignorant that a recovery had been suffered, agree for the 
 sale and purchase of the estate, and the purchaser is con- 
 tent to abide the risk of a recovery being subsequently 
 suffered. He conceives however he is purchasing some- 
 thing, that he is purchasing a vested interest. He is not 
 aware that such interest has ah'eady been defeated. . . . 
 [The defendant] has sold that which he had not — and 
 shall the plaintiff be compelled to pay for that which the 
 defendant had not to give ?"(;!). More recently, in 
 Cochrane v. JFiIlis{i(), an agreement had been made 
 between a remainderman and the assignee of a tenant for 
 life of a settled estate, founded on the assignee's supposed 
 right to cut the timber. The tenant for life was in fact 
 dead at the date of the agreement. The Coiu't refused to 
 enforce it, as having been entered into on the supposition 
 that the tenant for life was alive, and only intended to 
 take effect on that assumption. So a life insurance cannot 
 be revived by the payment of a premium within the time 
 allowed for that purpose by the original contract, but after 
 the life has dropped unknown to both insurers and assiu"ed, 
 although it was in existence when the premium became 
 due, and although the insm^ers have waived proof of the 
 party's health, which by the terms of renewal they might 
 have required : the waiver applies to the proof of health 
 
 («) 4 Pri. (Ex. iu Eq.) 135, and {t) Dan. at p. 7. 
 
 better in Dan. 1. {u) 1 Ch. 58.
 
 444 MISTAKE. 
 
 of a man assumed to be alive, not to the fact of his being 
 
 alive (x). 
 Pui-chase The case of Bincjhcun v. Bingham (/y), which was relied 
 pertv*" °^ ^^ ^^® argument of Cochrane v. W'dlh and in the 
 already judgment of Turner, L. J. must be considered as belonging 
 
 ° . ' 'to this class. As in Cochrane v. WUlis, the substance of 
 jjiiig- '_ 
 
 ham V. the facts was that a purchaser was dealing with his own 
 mg am. pj,QpQp^y^ ^^i^ knowing that it was his. This consideration 
 seems to remove the doubt expressed by Story (s), who 
 criticizes it as a case in which relief was given against a 
 mere mistake of law. But, with all respect for that 
 eminent writer, his objection is inapplicable. For the case 
 does not rest on mistake as a ground of special relief at 
 all. There was a total failure of the supposed subject- 
 matter of the transaction, or perhaps we should rather say 
 it was legally impossible. We have already pointed out 
 the resemblance of this class of cases to some of those 
 considered in the last chapter. The one party could not 
 buy what was his own abeady, nor could the other (in the 
 words of the judgment as reported) be allowed "to run 
 away with the money in consideration of the sale of an 
 estate to which he had no right" (r^). So we find it 
 treated in the Roman law quite apart from any question 
 of mistake, except as to the right of recovering back 
 money paid under the agreement. A stipulation to pur- 
 chase one's own property is " naturali ratione inutilis " as 
 much as if the thing was destroyed, or not capable of 
 being private property (J). Such an agreement is naught 
 
 {x) Fritcliard v. IlercJiants'' Life («) The case is considered, among 
 
 Assurance Society, 3 C. B. N. S. other authorities, and upheld on the 
 
 G2'2, 27 L. J. C. ]?. 169. For the triie gvouuA, in Stewart v. Stewart, 
 
 somewhat different treatment of 6 CI. & F. at p. 968 ; cp. the re- 
 
 tho contract of marine insmvance, marks of Hall, V.-C. in Jones v. 
 
 where at the date of effecting the Cliford, 3 Ch. D. 779, 790. 
 
 policy the risk has been determined [b) Gains in D. 44. 7. de. obi. et 
 
 without the knowledge of the par- act. 1 § 10. Suae rei emptio non 
 
 tics, see Bradford v. Symondson, C. valet, sive scions, sivo ignorans 
 
 A. 7 Q. B. D. 456. emi ; sed si ignorans emi, quod 
 
 {y) 1 Ves. Sr. 126, Belt's supp. solvere rei:)ctere potero, quia nulla 
 
 79. obligatio fuit : Pomponius, D. 18. 
 
 (;) Eq. Jurisp. § 124. 1. dc cont. cmpt. 16 pr.
 
 BUYTKG one's own pkoperty. 445 
 
 both at law and in equity, without reference to the belief 
 or motive which determined it. 
 
 Moreover tlio difficulty was cleared up by Lord West- Ag-rce- 
 bury, though not quite on this broad ground, in a case p-iy rent 
 exactly similar in principle. In Cooper v. FJiihhs (e) for one's 
 
 own prO" 
 
 A. agreed to take a lease of a fishery from B., on the porty: 
 assumption that A. had no estate and B, was tenant in '^'^^^^ '"' 
 fee. Both parties were mistaken at the time as to the 
 effect of a previous settlement ; and in truth A. was 
 tenant for life and B. had no estate at all. It was held 
 that this agreement was invalid. Lord Westbury stated 
 the ground of the decision as follows : — *' The result there- Lord 
 fore is that at the time of the agreement for the lease ^^^'g g^. 
 which it is the object of this petition [d) to set aside, the planation 
 parties dealt with one another under a mutual mistake as tia iuris. 
 to their respective rights. The petitioner did not suppose 
 that he was, what in truth he was, tenant for life of the 
 fishery. The other parties acted under the impression 
 given to them by their father that he (their father) was 
 the owner of the fishery and that the fishery had descended 
 to them. In such a state of things there can be no doubt 
 of the rule of a court of equity with regard to the dealing 
 with that agreement. It is said ' If/iiorcDida iuris haud 
 excnsat ; ' but in that maxim the word ' ius ' is used in the 
 sense of denoting general law, the ordinary law of the 
 countr3^ But when the word * ius ' is used in the sense of 
 denoting a private right, that maxim has no application. 
 Private right of ownership is a matter of fact ; it may be 
 the result also of matter of law ; but if parties contract 
 under a mutual mistake and misapprehension as to their 
 relative and respective rights, the residt is that that 
 agreement is liable to be set aside as having proceeded 
 upon a common mistake. Now that was the case with 
 these parties — the respondents believed themselves to be 
 entitled to the property, the petitioner believed that he 
 
 (f) L. R. 2 H. L. 149. {(I) A Cause Petition in the Irish 
 
 Court of Chancery.
 
 446 MISTAKE. 
 
 was a stranger to it, the mistake is discovered, and the 
 agreement cannot stand " (e). 
 Brough- The principle here laid down also covers Broiighton v. 
 Hutt'. Hutt (/). There the heir-at-law of a shareholder in a 
 company joined with several other shareholders in giving 
 a deed of indemnity to the directors, believing that the 
 shares had descended to him as real estate, whereas they 
 were personal estate. The deed was held to be void as 
 against him in equity at all events, and probably at law. 
 " The plaintiff never intended to be bound unless he was 
 a shareholder, and the defendants never intended him to 
 be bound unless he was so." Here the mistake was plainly 
 one of fact within Lord Westbury's definition, namely as 
 to the character of the shares by the constitution of the 
 particular company. It is submitted, however, that an 
 erroneous fundamental assumption made by both parties 
 even as to a general rule of law might well prevent any 
 valid agreement from being formed. 
 Assign- In the same way an agreement to assign a lease for lives 
 
 lease for would be inoperative if all the lives had dropped unknown 
 lives. to the parties. But the only thing which the parties can 
 
 here be supposed, in the absence of expressed condition or 
 warranty, to assume as essential is that the lease is sub- 
 sisting, that is, that at least one of the lives is, not that 
 they all are still in existence. Where the assignor of a 
 lease for the lives of A., B., and C, expressly covenanted 
 with the assignee that the lease was a subsisting lease for 
 the lives of A., B., and C, and the survivors and survivor 
 of them, this was held to be only a covenant that the lease 
 was subsisting, and not that all the lives were in being at 
 the date of the assignment [g) . That is, his contract was 
 interpreted, according to the general practice and under- 
 standing of conveyancers, as a contract to transfer an 
 existing lease for three lives, not necessarily a lease for 
 three lives all existing. 
 
 [e) L. R. 2 H. L. 170. {g) Coates v. Collins, L. R. 6 Q. 
 
 (/) 3 Dc G. & J. 501. B. 469, in Ex. Ch. 7 Q. B. 114.
 
 IGNORANCE OF ONE PARTY. 447 
 
 If in any state of things otherwise resembling those just Resiilts 
 now discussed we find, instead of ignorance of the material onirono 
 fact on both sides, ignorance on the one side and know- P^i'ty is 
 ledge on the other, then the matter has to be treated oi the 
 differently. Suppose A. and B. are the contracting parties; "^'''^tcrial 
 and let us denote by X. a fact or state of facts materially 
 connected with the subject-matter of the contract, which is 
 supposed by A. to exist, but which in truth does not exist, 
 and is known by B. not to exist. Then w^e have to ask 
 these questions : — 
 
 1. Does A. intend to contract only on the supposition 
 that X. exists ? which may be put in another way thus : 
 If A.'s attention were called to the possibility of his belief 
 in the existence of X. being erroneous, would he require 
 the contract to be made conditional on the existence of X. ? 
 
 2. If so — Does B. know that A. supposes X. to exist ? 
 
 3. If B. knows this — Does he also know that A. intends 
 to contract only on that supposition ? 
 
 If the answer to any one of these questions is in the 
 negative, it seems there is a binding contract {h). But it 
 is to be observed that a negative answer to the second 
 question will generally require strong evidence to establish 
 it, and that if this question be answered in the affirmative, 
 an affirmative answer to the third question will often 
 follow by an almost irresistible inference. Thus if a 
 purchaser of a reversionary interest subject to prior life 
 interests knows that one of these has ceased, and nothing is 
 said about it at the time of the contract, then the pur- 
 chaser can hardly expect anybody to believe either that he 
 himself overlooked the material importance of that fact, or 
 that he was not aware of the vendor's ignorance of it, or 
 that he supposed that the vendor would not treat it as 
 material (/). So in the case already cited (k) of the sale 
 of shares after a petition for the winding-up of the com- 
 
 (h) Smith V. Hughes, L. R. 6 Q. 169. 
 B. 597, supra, p. 438. {k) Bowman v. Rudge, L. R. 3 Q. 
 
 (i) See Turner v, Harvey, Jac. B. 689.
 
 448 
 
 MISTAKE. 
 
 Fimda- 
 mental 
 error pro- 
 duced by- 
 misrepre- 
 sentation. 
 
 pany had been presented, a distinct allegation in the 
 pleadings that the seller knew of the buyer's ignorance of 
 that fact, would, it seems, have been sufficient to constitute 
 a charge of fraud. 
 
 If the questions above stated be all answered in the 
 affirmative, either by positive proof or by probable and 
 uncontradicted presumption from the circumstances, then 
 it may be considered either that the case becomes one of 
 fraud, or at least that the party who knew the true state 
 of the facts, and also knew the other party's intention to 
 contract only with reference to a supposed different state 
 of facts, is precluded from denying that he understood the 
 contract in the same sense as that other, namely, as con- 
 ditional on the existence of the supposed state of facts. 
 
 On a similar principle (as we have already mentioned 
 incidentally) it is certain that where fundamental error of 
 one party is caused by a fraudulent misrepresentation, and 
 probable that where it is caused by an innocent misrepre- 
 sentation on the part of the other, that other is estopped 
 from denying the validity of the transaction if the party 
 who has been misled thinks fit to affirm it. 
 
 Does it follow that the contract is in its inception not 
 void, but voidable at the option of the party misled ? Not 
 so : for the fraud or negligence of the other must not put 
 him in any worse position as regards third persons. These, 
 if the transaction be simply voidable, are entitled to treat 
 it as valid until rescinded, and may acquire indefeasible 
 rights under it : if it be void they can acquire none, how- 
 ever blameless theii' own part in the matter may be (A-) . 
 Thus there is a real difference between a contract voidable 
 at the option of one party and a void agreement whose 
 nullity the other is estopped as against-him from asserting. 
 In the case of contracts to take shares in companies an 
 anomaly is admitted, as we have seen, for reasons of special 
 necessity, and the contract is treated as at most voidable. 
 But even here there must be an original aiu'nius contm- 
 
 (k) Foster V. Mac/dmw)!, L. R. 4 C. V. 70 J, siq^ra, p. 413.
 
 AS TO SAMPLE ON SALE. 449 
 
 Jiondi to this extent, that the shareholder was minded to 
 have shares in some company. An application for shares 
 signed in absolute ignorance of its true nature and con- 
 tents, like the hill in Fosfct' v. Mdcl-lnnon {/), could not 
 be the foundation of a binding contract to take shares. 
 An allotment in answer to such an application would be a 
 mere proposal, and whether it were accepted or not would 
 have to be determined by the ordinary rules of law in that 
 behalf (see Ch. I.) 
 
 We may finally call attention to a rule of the law con- Rule in 
 cerning sales by sample which has some analogy to the ^._ Hickson 
 rules governino- this last class of void agreements. The ^■^ ^'^ ^"-^^ 
 
 1 • i- 1 ;i 1 / Tr -n • • 1 by sample. 
 
 rule m question may be gathered (as Mr. iienjamm has 
 pointed out) from Ileilhutt v. Ilickmn (;;?) and is to this 
 effect : " If a manufacturer agrees to furnish goods accord- 
 ing to sample, the sample is to be considered as if free 
 from any secret defect of manufacture not discoverable on 
 inspection and unknown to both parties." 
 
 Here we have a common error as to a material fact, 
 namely the character of the sample itself by which the 
 character of the bulk is to be tested. But it is possible to 
 put the parties in the same position as if their erroneous 
 assumption had been correct, and therefore their contract, 
 instead of being avoided, is upheld according to their true 
 intention, i. e. as if the sample had been what they both 
 supposed it to be. If they had themselves discovered the 
 mistake in time they would have made the same contract 
 with reference to a proper sample in place of the defective 
 one. The result is thus the converse of that which occurs 
 when the error goes to the matter of the whole agreement, 
 as in the cases wo have been considering. 
 
 It appears from the authorities which have been adduced Eights 
 that a party to an apparent agreement which is void by dies of 
 
 (/) See note [k), supra. {»i) L. R. 7 C. P. 438 ; Benjamin 
 
 on Sale, 642. 
 
 P. G G
 
 450 
 
 MISTAKE. 
 
 party to a reason of fundamental error has more tlian one course open 
 
 agree- to ^il^- 
 
 ment. He may wait until the other party seeks to enforce the 
 
 alleged agreement and then assert the nullity of the trans- 
 action hy way of defence {n) . If he think fit he may also 
 take the opportunity of seeking by counterclaim to have 
 the instrument sued on set aside (o) . 
 
 Or he may right himself, if he prefers it, by coming 
 forward actively as plaintiff. Where he has actually paid 
 money as in performance of a supposed valid agreement, 
 and in ignorance of the facts which exclude the reality of 
 such agreement, he may recover back his money as having 
 been paid without any consideration (the action "for 
 money received" of the old practice) (p). He paid on the 
 supposition that he was discharging an obligation, whereas 
 there was in truth no obligation to be discharged. 
 
 Moreover he may sue in the Chancery Division, whether 
 anything has been done under the supposed agreement or 
 not, to have the transaction declared void and to be relieved 
 from any possible claims in respect thereof (q). 
 
 On the other hand, although he is entitled to treat the 
 supposed agreement as void, and is not as a rule prejudiced 
 by anything he may have done in ignorance of the true 
 state of the facts, yet after that state of facts has come to 
 his knowledge he may nevertheless elect to treat the agree- 
 ment as subsisting : or, as it would be more correct to say, 
 he may carry into execution by the light of correct know- 
 ledge the former intention which was frustrated by want 
 
 Election 
 to adopt 
 originally 
 void 
 agree- 
 ment. 
 
 («) As to the proper mode of 
 pleading such a defence under the 
 old practice at common law, see 
 notes (i) and {c), p. 404 of the first 
 edition of this book. 
 
 (o) «o>ry V. JFaddle (C. A.), 4 Q. 
 B. I). 289, seems to overrule vir- 
 tually the doctrine assumed in 
 Mosti/n V. West Mostyn Coal and Iron 
 Co., 1 0. P. D. 145, that it is need- 
 ful for tliis purjiose to obtain a 
 transfer of the action to the Chan- 
 
 cery Division. 
 
 (jj) E.g., Cox V. Prentice, 3 M. 
 & S. 348. 
 
 {q) All causes and matters for 
 [inter alia) the setting aside or can- 
 cellation of deeds or other written 
 instruments (which formerly be- 
 longed to the exclusive jurisdiction 
 of equity) are assigned to the Chan- 
 cery Division by s. 34 of the Su- 
 preme Coui-t of Judicature Act, 
 1873.
 
 IN EXPRESSION. 451 
 
 of tlie elements necessary to tlio formation of any valid 
 agreement. It is not that ho confirms the original trans- 
 action (except in a case where there is also misrepresenta- 
 tion, see p. 448), for there is nothing to confirm, but ho 
 enters into a new one. 
 
 It might be thought to follow that in cases within the 
 Statute of Frauds or any other statute requiring certain 
 forms to be observed, we must look not to the original void 
 and improperly so-called agreement, but to the suljsequent 
 election or confirmation in which the only real agreement 
 is to be found, to see if the requirements of the statute 
 have been complied with. No express authority has been 
 met with on this point. But analogy is in favour of a 
 deliberate adoption of the form already observed being 
 held sufficient for the purpose of the new contract (r) . 
 
 A note on Bracton's treatment of the subject of funda- 
 mental error will bo found in the Appendix (s) . 
 
 Pakt III. Mistake in expressing true Consent. 
 
 This occurs when persons desiring to express an intention Mistake in 
 which when expressed carries with it legal consequences f^^^T-^^^f 
 have by mistake used terms which do not accurately generally 
 represent their real intention. As a rule it can occm' only ^ritiu"-. 
 when the intention is expressed in writing. It is not 
 impossible to imagine similar difficulties arising on verbal 
 contracts, as for example if the discourse were carried on 
 in a language imperfectly understood by one or both of 
 the speakers. But we are not aware that anything of this 
 kind has been the subject of judicial decision (f). The 
 general result of persons talking at cross purposes is that 
 there is no real agreement at all. This class of cases has 
 already been dealt with. We are now concerned with 
 those where there does exist a real agreement between the 
 
 {)•) Stewart v. Eddotves, L. R. 9 {t) See however FhiUipa v. Bis- 
 
 C. P. 311 ; .s?q]ra, p. 1G2. (oUi, 2 B. & C. oil, which comes 
 
 (i) Noto L. near the supposed case. 
 
 G G 2
 
 452 
 
 MISTAKE. 
 
 Classifica- 
 tion of 
 cases 
 according 
 to tlie 
 remedies 
 applic- 
 able: 
 
 1. General 
 rules of 
 construc- 
 tion. 
 
 2. Special 
 equitable 
 rules of 
 construc- 
 tion. 
 
 3. Special 
 equitable 
 remedies. 
 
 Clerical 
 errors, «S:c. 
 
 parties, only wrongly expressed. Sucli mistakes as we are 
 now about to consider were, even before the Judicature 
 Acts, not wholly disregarded by courts of law ; but they 
 are fully and adequately dealt with only by the jurisdiction 
 which was formerly peculiar to courts of equity. We 
 shall see that this jurisdiction is exercised with much 
 caution and within carefully defined limits. 
 
 On the whole the cases of mistake in expressing inten- 
 tion fall into three classes : — 
 
 1. Those which are sufficiently remedied by the general 
 rules of construction. 
 
 2. Those which are remedied by special rules of con- 
 struction derived from the practice of courts of equity. 
 
 3. Those which require peculiar remedies administered 
 by the Court in its equitable jurisdiction. 
 
 We proceed to take the classes of cases above mentioned 
 in order. 
 
 1. General Rules. 
 
 Certain simple and obvious forms of mistaken expres- 
 sion can be set right without any special remedies by the 
 ordinary rules of construction. Such are all trifling 
 mechanical mistakes, clerical, verbal, or grammatical 
 errors (»), omissions which may be supplied with cer- 
 tainty from the context (.r), and even more substantial 
 errors when the instrument itself affords the means of 
 correcting them. The Court is not bound by the strict 
 
 («) Cp. per Lord Mansfield (on a 
 ■will) 3 Burr. 1635; " Every in- 
 accuracy of grammar, every im- 
 propriety of terms, shall be cor- 
 rected by the general meaning, if 
 tbat be clear and manifest." 
 
 {x) For a striking case of omis- 
 sion suijplicd by a court of law in a 
 ■will see Doe d. Leach v. Mick/em, 6 
 East, 486, where an alternative 
 clause being imperfect the missing 
 alternative was supiilied as obvi- 
 ously oiriitted : and as to implying 
 au omitted case where there are 
 
 limitations on alternative contin- 
 gencies, Crofton V. Davies, L. R. 4 
 
 C. P. 159, Savaffc v. Tyers, 7 Ch. 
 356, 363. In several recent cases 
 the Court has siipplied omitted 
 words {Bird's tr. 3 Ch. D. 214) and 
 clauses {Banters sett. tr. 1 Ch. D. 
 375, a limitation in favour of 
 daughters as well as sons re- 
 stored. Greenwood v. Greenwood, 5 
 Ch. D. 954, an omitted life interest 
 supplied by aid of subsequent con- 
 text) ; licdfern v. lirijning, 6 Ch. 
 
 D. 133.
 
 IN EXPRESSION : OBVIOUS ERRORS. 453 
 
 meaning of words when the context shows it to he contrary 
 to the true meaning (//) . It has long heen established that 
 " false or incongruous Latin or English seldom or never 
 hm-teth a deed : for the rules are, Faha ortJiograpJiia non 
 vitiat cJtaiiain. Faha ynnnmatica noii vitiat concesaioncm.^^ 
 " Mala grammatim )ion vitiat cJiartani : neither false Latin 
 nor false English will make a deed void when the intent 
 of the parties doth plainly appear" (~). 
 
 Where the length of the term is differently stated in 
 different parts of a lease, the counterpart may be referred 
 to in order to decide which is right, the rule that the 
 habendum prevails being only vl prima facie one («). 
 
 Similar in principle, but of wider scope, is the rule that General 
 
 " greater regard is to be had to the clear intent of the preens 
 
 parties than to any particular words which they may have over 
 
 used in the expression of their intent" {b). In a modern mistaken 
 
 ease in the House of Lords the rule was laid down and '^'^ repug- 
 nant ex- 
 acted upon that " both courts of law and of equity may pressions. 
 
 correct an obvious mistake on the face of an instrument 
 without the slightest difficulty" (c). Here a di-aft agree- 
 ment for a separation deed had by mistake been copied so 
 as to contain a stipulation that the husband should be 
 indemnified against his own debts : but it was held that 
 the context and the nature of the transaction clearly 
 showed that the wife's debts were meant, and that in 
 framing the deed to be executed under the direction of the 
 Court in pursuance of the agreement the mistake must be 
 corrected accordingly. So the Court may presume from 
 the mere inspection of a settlement that words which, 
 though they make sense, give a result which is unreason- 
 able and repugnant to the general intention and to 
 
 {y) Per James, L. J. Greenwood {b) Per Cm". (Ex. Ch.), Ford v. 
 
 V. Greenwood, o Ch. D. at p. 956. Beech, 11 Q. B. at p. 866, 17 L. J, 
 
 (z) Shepp. Touchst. 55, 87 : op. Q. B. at p. 116. 
 
 ib. 369. (c) Wilson v. Wilson, 5 H. L. C. 
 
 («) Burchell v. Clark (C. A.) 2 40, 66, per Lord St. Leonards, and 
 
 C, P. D. 88. see his note, V. & P. 171.
 
 454 
 
 MISTAKE. 
 
 General 
 words re- 
 strained 
 by con- 
 text. 
 
 the usual frame of such iustrumonts, were inserted by 
 mistake {(/). 
 
 An agreement has even been set aside chiefly, if not 
 entirely, on the ground that the unreasonable character of 
 it was enough to satisfy the Court that neither party 
 could have understood its true effect : such at least appears 
 to be the meaning of Lord Eldon's phrase, " a surprise on 
 both parties" {e). The agreement itself purported to bind 
 the tenant of a leasehold renewable at arbitrary (and in 
 fact always increasing) fines at intervals of seven years to 
 grant an underlease at a fixed rent with a perpetual right 
 of rencAval. The lessor was in his last sickness, and there 
 was evidence that he was not fit to attend to business. 
 Charges of fraud were made, as usual in such cases, but not 
 sustained: the decision might however have been put on 
 the ground of undue influence, and was so to some extent 
 by Lord Eedesdale. 
 
 Again, there is legal as well as equitable jmisdiction to 
 
 restrain the effect of general words if it sufficiently appears 
 
 by the context that they were not intended to convey their 
 
 apparent unqualified meaning. It was held in Browning 
 
 V. Wright (./) that a general covenant for title might be 
 
 restrained by special covenants among which it occurred. 
 
 And the same principle was again deliberately asserted 
 
 shortly afterwards (in a case to the particular facts of 
 
 which it was however held not to apply) : — 
 
 "However general the words of a covenant may be if standing alone, 
 yet if from other covenants in the same deed it is plainly and irresistibly 
 to be inferred that the party could not have intended to use the words in 
 the general sense which they import, the Court will limit the operation 
 of the general words " {[/). 
 
 (d) He BcIaTouchc's settlement, 10 
 Eq. 599, 603 ; where however the 
 mistake was also established by 
 evidence. 
 
 (c) Willan V. Willan, IG Ves. 72, 
 84 ; afTu-med in Dom. Proc. 2 Dow. 
 275, 278. 
 
 (/) 2 B. & P. 13, 26 : but it was 
 also thought the better construction 
 to take the clause in question as 
 being actually part of a special 
 covenant, and so no general cove- 
 nant at all. 
 
 {g) Hesse v. Stevenson, 3 B. & P. 
 565, 574.
 
 IN EXPRESSION : INTENTION OF PARTIES. 455 
 
 Similarly the effect of general ■words of convej'ance is 
 confined to property of the same kind with that which has 
 been specifically described and conveyed (h) . When there 
 is a specific description of a particular kind of property, 
 followed by words which p)'iiiia facie would be sufficient 
 to include other property of the same kind, it has been 
 held that those words do not include the property not 
 specifically described, on the principle cxpressio uniiis est 
 cxchmo altet'ius (/). 
 
 Before we deal with the following heads it will be Obsorva- 
 
 relevant to observe that the questions arising under them ^uies of 
 
 are for the most part either questions of evidence, or mixed evidence 
 .^ ■•■ ^ , as con- 
 
 questions of evidence and construction. This demands ncctcd 
 
 some preliminary explanation. Slowing 
 
 The end proposed is to give effect to the true intention heads. 
 of the parties concerned. 
 
 Intention has to be inferred from words, or conduct, or 
 both. 
 
 In making these inferences conduct must generally be 
 interpreted, and words may often be interpreted, by refer- 
 ence to other relevant circumstances of the transaction. 
 
 And the rules which guide a court of justice in deter- Evidence 
 mining of what things it may take notice for the pm-pose y^'^^^tion. 
 of such inferences, and in what manner such things may 
 be brought to its notice — in other words, what facts are 
 
 (/t) RooJce V. Lord Kc7isington , 2 number of messuages had been 
 
 K. & J. 753, 771. The same iM'in- mentioned, yet the mention of 
 
 ciple applies to general words in the twelve messuages prevented any 
 
 statement of a company's objects greater number from passing' under 
 
 in its memorandum of association. the description of land ; and that 
 
 Ashbury, ij'c. Co. v. liiche, L. li. 7 parol evidence was admissible to 
 
 H. L. 653. show first that there were in fact 
 
 (i) Dcnn V. WUJ'ord, 8 Dow. & nineteen messuages, this being no 
 
 Ky. 549. The case was a curious more than was necessary to explain 
 
 one. A fine had been, levied of the natiu-e and character of the 
 
 {inter alia) twelve messuages and proxjerty ; next (as a consequence 
 
 twenty acres of land in Chelsea. of the constrvictiou thereupon 
 
 The conusor had less than twenty adopted by the Court) which 
 
 acres of land in Chelsea, but nine- twelve out of the nineteen mes- 
 
 teen messuages. It was decided suages were intended. And see 
 
 that although all the messuages further the notes to Eoe v. Tran- 
 
 would have i^assed under the gene- marr, 2 Sm. L. C. 
 ral description of land if no less
 
 456 MISTAKE. 
 
 relevant, and what proof of such facts is required— are 
 rules of evidence (/t) . 
 
 A rule of construction is a rule for determining the 
 inference to be di-awn from a fact of a particular class 
 when duly brought under the notice of the Com't accord- 
 ing to the rules of evidence — the fact, namely, that persons 
 have used words or combinations of words such as come 
 within the general proposition affirmed by the rule. The 
 name " rule of construction " is confined by general usage 
 to rules for the interpretation of written documents in 
 matters on which, in the absence of a rule prescribed by 
 authority, there might exist a reasonable doubt. Rules of 
 construction, therefore, are in practice closely connected 
 with, and their importance is much affected by, rules of 
 evidence (/). 
 
 "We are now concerned with a general rule of evidence, 
 
 and the modifications effected in some of its results partly 
 
 by special rules of construction and partly by direct 
 
 exceptions. 
 
 Meaning The principle from which the law sets out is one almost 
 
 of the rule ^^^ obvious to need stating, being that on which we daily 
 
 evidence, act in all the transactions of life : namely that men are to 
 
 be taken to mean what they say. 
 
 The next step is of a somewhat more artificial character, 
 but equally founded in reason. It is that men are taken 
 to mean what they have chosen to say deliberately and in 
 a permanent form rather than what they may have said in 
 hasty or less considered discom'se. Hence the general rule 
 that evidence of an oral agreement is not admissible to 
 contradict the terms of a written document. It has been 
 thus stated : " The law prohibits generally, if not miiver- 
 sally, the introduction of parol evidence to add to a written 
 agreement, whether respecting or not respecting land, or 
 
 (/,:) See the arrangement of the {/) Cp. Mr. F. V. Hawkins' re- 
 Indian Evidence Act, 1872. Part marks on rules of construction in 
 I. Relevancy of Facts. Part II. the preface to his Treatise on the 
 On Proof. Construction of Wills.
 
 IN EXPRESSION : PAROL EVIDENCE. 
 
 457 
 
 to vary it" (m). "If A. and B. make a contract in writing, 
 evidence is not admissible to show that A. meant some- 
 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 admitted every written document would be 
 at the mercy of witnesses that might be called to swear 
 anything " («). 
 
 In the absence of mistake or fraud, or a verbal agree- Rule of 
 ment having been acted upon (o), the same rule prevails ^^l^^^J- 
 in equity, and this in actions for specific performance as 
 well as in other proceedings, and whether the alleged 
 variation is made by a contemporaneous {p) or a subse- 
 quent (y) verbal agreement. " Variations verbally agreed 
 upon . . . are not sufficient to prevent the execution 
 of a wiitten agreement, the situation of the parties in all 
 other respects remaining unaltered " (>•). 
 
 When a question arises as to the construction of a 
 
 (;») Martin v. Pycroft, 2 D. M. G. 
 785,795. We have not to consider 
 in this place how far those cases 
 must be deemed really exceptional 
 in which it is allowed to be shown 
 that a custom of the country, or of 
 trade, thoug-h not expressed, is in 
 fact part of the contract. 
 
 («) Per Pollock, C. B. Xkhol v. 
 Godls, 10 Ex. 191, 194, 23 L. J. 
 Ex. 314. See also Ilotaon v. Browne, 
 9 C. B. N. S. 442, 30 L. J. C. P. 
 106 ; Halhcad v. Yoinu/, G E. & B. 
 312, 25 L. J. Q. B. 290. 
 
 (o) The docti'iue of equity as to 
 part performance rests on a prin- 
 ciple analogous to estoppel [Mor- 
 phett V. Jones, 1 Swanst. 172, 181) 
 and does not belong to our present 
 subject. 
 
 {p) Omcrod v. Hardman, 5 Ves. 
 722, 730. Lord St. Leonards (V. & 
 P. 163) says this cannot be deemed 
 a general rule : but see Hill v. Wil- 
 son, 8 Ch. 888 ; per Mellish, L. J. 
 at p. 899. 
 
 {q) Price v. Bycr, 17 Ves. 356 ; 
 Eobinson v. Page, 3 Buss. 114, 121. 
 But a subsequent waiver by parol, 
 if complete and imconditional, may 
 
 bo a good defence ; ib. : Goman v. 
 Salislmrij, 1 Vern. 240. And cp. 
 6 Ves. 337 ff, note. Qu. if not also 
 at law, if the contract be not under 
 seal : see Chitty on Contracts, 707 
 (8th ed.) ; Dart, V. & P. 970. Mr. 
 Dart's statement seems too positive, 
 for the case of Noble v. Ward (L. H. 
 2 Ex. 135) does not prove that "a 
 verbal waiver of a written agree- 
 ment is no defence at law ' ' but 
 only that a new verbal agreement 
 intended to suiDersede an existing 
 contract, but by reason of the 
 Statute of Frauds incapable of 
 being enforced, cannot operate as a 
 mere rescission of the former con- 
 tract ; the grovmd being that there 
 is nothing to show any intention of 
 the parties to rescind the first con- 
 tract absolutely. 
 
 (r) Price v. Bi/er, 17 Ves. at p. 
 364 ; Clowes v. Higginson, 1 Ves. & 
 B. 524, where it was held (1) that 
 evidence was not admissible to ex- 
 plain, contradict, or varythewi-itten 
 agreement, but (2) that the written 
 agreement was too ambiguous to be 
 enforced.
 
 458 MISTAKE. 
 
 ■written instrument as it stands, parol evidence is not ad- 
 missible (and was always inadmissible in equity as well as 
 at law) to sliow what was tbe intention of the parties. A 
 vendor's express contract to make a good marketable title 
 cannot be modified by parol evidence that the purchaser 
 knew there were restrictive covenants {s). It is otherwise, 
 as we shall presently see, where it is sought to rectify the 
 instrument. 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 (/) . 
 Apparent It is no real exception to this rule that though " evi- 
 at law^and tlence to Vary the terms of an agreement in writing is not 
 in equity, admissible," yet " evidence to show that there is not an 
 agreement at all is admissible," as where the operation of 
 a writing as an agreement is conditional on the approval 
 of a third person {it). " A written contract 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" (.r). 
 
 " The rules excluding parol evidence have no place in 
 any inquiry in which the Com-t has not got before it some 
 ascertained paper beyond question binding and of full 
 effect "(//). 
 
 So in Jcrvis v. Bcrridge (s) it was held that a document 
 purporting to be a written transfer of a contract for the 
 
 (.?) Cato V. Thompson (C. A.), 9 [x] Tcr Bramwell, B. Wake v. 
 
 Q. B. D. G16. In sucli a case the llarrop, 6 H. & N. at p. 77o, 30 
 
 true intention may well be that the L. J. Ex. at p. 277. 
 
 vendor shall remove the defect. {ij) G ii<iyclhoi<se\ . Blackhur)i,'L.'R. 
 
 (t) Brad/only. Romnoj, 30 Beav. 1 P. & D. 109, 115. And see per 
 
 431, cp. perLindley, L. J. 9 Q. B. Page Wood, V.-C. in DndJ/'v. Lord 
 
 J) 620. Parker, 5 Eq. 131, 137. 
 
 {u) Ti/m V. Camjihell, 6 E. & B. {z) 8 Ch. 351, 359, 360. 
 370, 374, 25 L. J. Q. B. 277.
 
 IN EXrRESSION : RULES AS TO PAROL EVIDENCE. 459 
 
 purchase of lands " was . . . not a contract valid and 
 operative between the parties but omitting (designedly or 
 other"svise) some particular term which had been verbally 
 agreed upon, but was a mere piece of machinery . . . 
 subsidiary 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 agreement, nor " any hybrid agree- 
 ment compounded of the written instrument and some 
 terms omitted therefrom," but only to prevent the defen- 
 dant from using the written document in a manner incon- 
 sistent 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 
 signatm-e, if it is not such according to the good faith and 
 real intention of the parties." If it appears that a docu- 
 ment signed by the parties, and apparently being the 
 record of a contract, was not in fact intended to operate as 
 a contract, then " whether the signature is or is not the 
 result of a mistake is immaterial" {a). 
 
 We shall see however that the heads now to be discussed Real ex- 
 present two classes of really exceptional cases recognized equity!^ ^^ 
 by equity. 
 
 First, those in which equity applies to instruments of Artificial 
 certain kinds rules of construction which (as regards the conttru - 
 actual terms of the instruments) are highly artificial, so tionj 
 artificial, indeed, that they come to much the same thing assToned 
 as presuming a verbal agreement inconsistent with and to them, 
 operating to vary the written agreement (b). 
 
 The ground on which these rules were estabHshed (or 
 at any rate which in modern times has been relied on to 
 account for them) was that the manner in which the 
 
 («) Per Bramwell, B. Rogers v. (/;) "You are to ascertain the iu- 
 
 Hadley, 2 H. & C. 227, 249, 32 L. tentiou of the parties not only by 
 
 J. Ex. 241. In this case there was what they said but by what the 
 
 "a real contract not in writing Court sees to be the consequence, 
 
 and a paper prepared in order to and by what the Court may or may 
 
 comply with some form, which was not consider to be absurd or oppres- 
 
 stated at the tune to contain a sivc, or thought to be so in former 
 
 merely nominal price. " times:" Lindley, L. J. in Wallis 
 
 V. Smith, 21 Ch. D. at p. 274.
 
 460 
 
 MISTAKE. 
 
 Limited 
 
 admissiou 
 
 of oral 
 
 evidence 
 
 against 
 
 written 
 
 contract. 
 
 parties had expressed their intention did not correspond 
 with their true intention. We must therefore consider 
 the cases governed by the rules in question to have been 
 originally cases of relief against mistaken expression. But 
 since the doctrine of equity has been fixed and uniform 
 they have practically ceased to have any such nature. For 
 persons who make contracts are presumed to know the law 
 of the land, including the law administered by courts of 
 equity ; and therefore they must be presumed to know 
 that if the nature of the contract and the terms used in 
 framing it fall within the scope of these peculiar rules 
 which have now become fixed rules of construction, the 
 contract will be interpreted accordingly. And in fact they 
 generally do know this, and use the accustomed expressions 
 for the very reason that they have acquired a definite 
 artificial meaning in courts of equity. It seems proper, on 
 account of the origin of these equitable rules, to say some- 
 thing of them in this place, though not to go into details 
 belonging to the fuller treatment of the special departments 
 affected by them. 
 
 In the other class of exceptional cases, which form the 
 last division of the subject, courts of equity have admitted 
 oral evidence, for certain purposes and under certain limi- 
 tations, to show that by reason of a mistake the terms of 
 a written instrument fail to express the real intention of 
 the parties, and that the real agreement is different from 
 the written agreement. It will be obvious from the fore- 
 going remarks that this class originally included the last. 
 
 We proceed to consider the topics thus indicated. 
 
 2. Peculiar Rules of Construction in Equity. 
 
 The material exceptions to the rule that contracts are 
 construed alike at common law and in equity are — 
 
 A. Restricted construction of general words, and espe- 
 
 cially of releases. 
 
 B. Stipulations as to time. 
 c. Penalties.
 
 IN EXPRESSION : PECULIAR RULES OF CONSTRUCTION. 461 
 
 A. Restriction of General Worch. Restricted 
 
 construe » 
 
 We have seen that courts both of law and of equity have tion of 
 assumed a power to put a restricted construction on general ^.^.^^^'^ 
 words when it appears on the face of the instrument that carried 
 it cannot have been the real intention of the parties that than by 
 they should be taken in their apparent general sense. common 
 
 Courts of equity went farther, and did the like if the pecially in 
 same conviction could be arrived at by evidence external ^^^C''^^^-^- 
 to the instrument. Thus general words of conveyance [c) 
 and an unqualified covenant for title (c/), though not 
 accompanied as in Browuiiuj v. WrigJit {e.) by other quali- 
 fied covenants, have been restrained on proof that they 
 were not meant to extend to the whole of their natural 
 import. 
 
 This jurisdiction, in modern times a well established 
 one, is exercised chiefly in dealing with releases. " The 
 general words in a release are limited always to that thing 
 or those things which were specially in the contemplation 
 of the parties at the time when the release was given" (/). 
 This includes the proposition that in equity " a release 
 shall not be construed as applying to something of which 
 the party executing it was ignorant" {g). There is at 
 least much reason to think that it matters not whether such 
 ignorance was caused by a mistake of fact or of law {Ji) . 
 
 In particular a release executed on the footing of accounts 
 rendered by the other party, and assuming that they are 
 
 {c) Thomas \. Davis, 1 Dick. cited 2 Mer. 353 ; Dav. Couv. 5. 
 
 301. pt. 2. G22-4. 
 
 {(I) Coldcot Y.mU, 1 Cha. Ca. 15, (r/) Per Wilde, B. Lijall v. Ed- 
 
 sed qu. for the case looks very like irards, 6 H. & N. 337, 348, 30 L. 
 
 admitting contemporaneous conver- J. Ex. 193, 197. This was a case 
 
 sation to vary the effect of a solemn of equitable jurisdiction under the 
 
 iustrviment, and that mthout any C. L. P. Act, 1854 : but before 
 
 mistake or fraud being made out, that Act courts of law would not 
 
 which is quite contrary to the allow a release to be set up if 
 
 modern rule. clearly satisfied that a court of 
 
 (e) 2 B. & P. 13. Supra, p. 454. equity would set it aside : Fhillips 
 
 If) Per Lord Westbury, Z. c^- S. v. ClasfcU, 11 M. & W. 84, 12 L. J. 
 
 JF. El/. Co. V. BIttchnorc, L. R. 4 Ex. 275. 
 
 H. L. atp. G23 ; c^. Lindov.Lindu, (//) See the cases considered at 
 
 1 Beav. 496, 506; FarewcUv. Cokci-, p. 406 above.
 
 462 MISTAKE. 
 
 correctly rendered, may be set aside if those accounts are 
 discovered to contain serious errors. It would be other- 
 wise however if the party had examined the accounts 
 himself and acted on his own judgment of their correct- 
 ness. An important application of this doctrine is in the 
 settlement of partnership ailairs between the represen- 
 tatives of a deceased partner (especially when they are 
 continuing partners) and the persons beneficially interested 
 in his estate (/). 
 
 A releasor, however, cannot obtain relief if he has in the 
 meanwhile acted on the arrangement as it stands in such a 
 way that the parties cannot be restored to their former 
 position (/.•). 
 
 Stipula- B. Stipulations as to Time. 
 
 tions as to 
 
 time. If; is a familiar principle that in all cases where it is 
 
 sought to enforce contracts consisting of reciprocal pro- 
 mises, and " where the plaintiff himself is to do an act to 
 entitle himself to the action, he must either show the act 
 done, or if it be not done, at least that he has performed 
 everything that was in his power to do" (/). 
 
 Accordingly, when by the terms of a contract one party 
 is to do something at or before a specified time, and when 
 he fails to do such thing within that time, he could not 
 afterwards claim the performance of the contract if the 
 stipidation as to time were construed according to its 
 literal terms. The rule of the common law was that 
 " time is always of the essence of the contract." AVhen 
 any time is fixed for the completion of it, the contract must 
 be completed on the day specified, or an action will lie for 
 the breach of it {in) . 
 
 The rule of equity, which now is the general rule of 
 
 (j) Millar v. CraUj, G Beav. 433 ; case. 
 
 Lindley, 2. 960. {I) Notes to Peelers v. Opie, 2 
 
 {k) Skilhcclc V. Jiilton, 2 Eq. 587, Wms. Saund. 743. 
 
 but qu. whether the principle was [m) I'urkin v. Thorold, 16 Beav. 
 
 rightly applied in the particular 59, 65.
 
 IN EXPRESSION : STIPULATIONS AS TO TIME. 463 
 
 Englisli jurisprudence, 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 
 only 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 
 wit]i what the Court considers its true meaning. 
 
 ' ' Courts of equity have enforced contracts specifically, where no 
 action for damages could be mauitaincd ; for at law the party plaintiff 
 must have strictly performed his part, and the inconvenience of insisting* 
 ui^on that in all cases was sufficient to require the interference of courts 
 of equity. They dispense with that which would make compliance with 
 what the law reqiiires oppressive, and in various cases of such contracts 
 they are in the constant habit 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 deposit 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 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 Redesdale in a judgment which has taken 
 a classical rank on this subject (»). Contracts between 
 vendors and pm^chasers of land are however the chief if 
 not the only class of cases to which the rule has been 
 habitually applied (o) . 
 
 It was once even supposed that parties could not make As to 
 time of the essence of the contract by express agreement ; t^^e ot^the 
 but it is now perfectly settled that they can, the question essence of 
 being always what was their true intention (p), or rather tract. 
 " what must be judicially assumed to have been their 
 
 («) Lennon v. Xapper, 2 Seh. & (o) See per Cotton, L. J., 4 C. P. 
 
 L. 684, cited by Knight Bruce, L. D. at p. 249. 
 
 J. Roberts v. I>c)ti/, 3 D. M. G. at {p) Scton v. Slade, 7 Ves. 205, 
 
 p. 289, and again adopted by the 27o, and notes to that case in 2 
 
 L.JJ. in Tilleij v. Thomas, 3 Ch. Wh. & T. L. C. ; Farlcin v. Thorold, 
 
 61. sujira.
 
 464 
 
 MISTAKE. 
 
 ladian 
 Contract 
 Act 
 thereon. 
 
 intention" ((?). "If the parties choose even arbitrarily, 
 provided 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 riiake a new contract which the parties have not 
 made (r). The fact that time is not specified, or not so 
 specified as to be of the essence of the contract, does not 
 affect the general right of either party to require com- 
 pletion on the other part within a reasonable time, and 
 give notice of his intention to rescind the contract if the 
 default is continued (s), as on the other 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 {f) . In mercantile con- 
 tracts the presumption, if any, is that time where specified 
 is an essential condition (?/). The principles of our juris- 
 prudence 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 such 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 was that time should be of 
 the essence of the contract. 
 
 [The Court may infer from the nature of a contract, even thoiigh 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 jiart of the contract] (x). 
 
 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 
 
 (q) Grove, J. in Patrick v. Milncr, 
 2 C. P. D. 312, 348. 
 
 ()•) Per Alderson, B. HipwcU v. 
 Knujht, 1 Y. & C. (Ex.) ^4 15. And 
 see the observations of Kinderslcy, 
 V.-C. to the same effect in Oakdcii 
 V. nice, 34 L. J. Ch. 620. 
 
 (,?) This is the true and only 
 admissible meaning of the state- 
 ment tliat time can be made of the 
 essence of a contract by subsequent 
 
 express notice. Per Fry, J. Green 
 V. Scviu, 13 Ch. D. 689, 599; per 
 Turner, L. J. Williams v. Glento7i, 
 1 Ch. 200, 210. 
 
 it) Webb V. Hughes, 10 Eq. 281 : 
 and see note (y), next p. 
 
 {u) Per Cotton, L. J. Renter v. 
 Sala, 4 C. P. D. at p. 249. 
 
 [x) Mdcbryde v. Weekes, 22 Beav. 
 533 (contract for a lease of working 
 mines) .
 
 IN EXPRESSION : RELIEF AGAINST TENALTIES. 465 
 
 failure to do sucli thing at or before tlic specified time ; but the promisee 
 is entitled to compousatiou 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 tlie time agreed, the promisee accepts per- 
 formance of such promise at any time other than that agreed, the 
 promisee cannot claim compensation 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 tq 
 do so (y). 
 
 C. Relief against Penalties. 
 
 In like manner penal provisions inserted in instruments Relief 
 to secure the payment of money or the performance of pfnaities, 
 contracts will not ha literally enforced, if the substantial especially 
 performance of that which was really contemplated can be mort- 
 otherwise secured (;:) . The most important application of S^^^^' 
 this principle is in the jurisdiction of equity concerning 
 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, 
 interest and costs {a). 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 any 
 express agreement so as to make a mortgage absolutely 
 
 (y) " It constantly happens that {a) Per Romilly, M. R. Farkin 
 
 an objection is waived by the con- v. Thoruld, 16 Beav. 59, GS ; and 
 
 duct of the parties," per James, L. see Lord Redesdale's judgment in 
 
 J. Upperton y. Nickohon, G Ch. at Lennonx. Napper, supra. As to the 
 
 p. 443. And see Dart, V. & P. old theory of an " equity of re- 
 
 424. demption" being not an estate but 
 
 iz) In addition to the authorities a merely personal right, and its 
 
 cited belovf see the later case of Ex consequences, see Lord Blackburn's 
 
 parte IIulsc, S Ch. 1022. remarks, 6 App. Ca. at p. 714. 
 
 P. H H
 
 rule 
 
 466 MisTAKi:. 
 
 irredeemable (h). However, limited restrictions on the 
 mutual remedies of the mortgagor and mortgagee, as by- 
 making the mortgage for a term certain, are allowed and 
 are not uncommon in practice. Also there may be such a 
 thing as an absolute sale with an option of repm'chase 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 (r). 
 
 " That this Court will treat a transaction as a mortgage, 
 although 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 " (r/). " But it is equally 
 clear, that if the parties intended an absolute sale, a con- 
 temporaneous agreement for a repurchase, not acted upon, 
 wdll not of itself entitle the vendor to redeem " (f) . 
 General The manner in which equity deals with mortgage trans- 
 
 actions is but one consequence of a more general proposition, 
 w^hich is this : that 
 
 " Where there is a debt actually due, and in respect of that debt a 
 security is given, be it by way of mortgage or be it by way of stipiilation 
 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 
 wUl not allow either a forfeiture of the property pledged, or any augmen- 
 tation of the debt as a penal provision, on the ground that Equity regards 
 the contemplated forfeitiu'e which might take place at law with reference 
 to the estate as in the nature of a penal provision, against which Equity 
 will relieve when the object in view, namely, the seeming 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 " (/). 
 
 This applies not only to securities for the payment of 
 money but to all cases " where a penalty is inserted 
 
 (J) Howard v. Harris, 1 Vern. mon law, Garchicr v. Cazenovc, 1 H. 
 
 190; Coivdryy. Bay, 1 GifP. 316, & N. 423, 435, 438, 26 L. J. Ex. 17, 
 
 see reporter's note at p. 323 ; 1 Ch. 19, 20. 
 
 Ca. 141. [e) Per Lord Cottenham, C. Wil- 
 
 {(■) Davis V. Thomas, 1 Euss. & Hams v. Otcen, o M. & Cr. 303, 306. 
 
 M. oOG. (/) Per Lord Hathcrley, C. 
 
 [d) See Douglas v. Ciilrerwcll, 31 Thompson v. Hudson, L. R. 4 H. L. 
 
 L. J. Ch. 013 ; and so also at com- 1,15,
 
 IIELIEF AGAINST TEXALTIES, ETC. 467 
 
 merely to secure the enjoyment of a collateral ohject " {g). 
 In all siicli cases tlie penal sum was originally recoverable 
 in full in a court of law, but actions brougbt 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 (//). 
 
 It would load 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 bo 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 (/). 
 
 3. Peculiar Defenecs and Remedies derived from Equity. 
 
 A. Defence against Specific Performance. Defence 
 
 When by reason of a mistake {e. g. omitting some terms gfg^!|}f^!^ 
 which were part of the intended agreement) a contract in perform- 
 writing fails to express the real meaning of the parties, 
 the party interested in having the real and original agree- 
 ment adhered to {c. g. the one for whose benefit the omitted 
 term v/as) is in the following position. 
 
 If the other party sues him for the specific performance 
 of the contract as expressed in writing, it will be a good 
 
 {(/) Per Lord Tliurlow, Slouian v. mentioned hardly occur in modern 
 
 Walter, 2 Wh. & T. L. C. 109i. practice. 
 
 (A) As to common money bonds: (() Per Bramwell, B. in Belts v. 
 
 4 & 5 Anne, c. 16, s. 13 ; C. L. P. Bnrch, 4 H. & N. 500,511, 28 L. J. 
 
 Act 1860 (23 & 24 Vict. c. 126), s. Ex. 267, 271. The latest cases on 
 
 25. As to other bonds and agree- this subject are — Lea v. Whltaker, 
 
 ments: 8 & 9 Wm. 3, c. 11, s. 8. L. R. 8 C. P. 78 ; Magce v. LaveJl, 
 
 The statutes are collected and re- L. E.. 9 C. P. 107 ; Ex parte If Al- 
 
 viewed in I'rc&ton v. JDania, L. E. tcijrac, 15 Eq. 36 ; Ex parte Capper, 
 
 8 Ex. 19. A mortgagee suing- in 4 Ch. D. 724 ; Wallis v. Smith, C. 
 
 ejectment, or on a bond given as A. 21 Ch. D. 243. Cp. JFeston v. 
 
 collateral security, may be com- Mdrop. Asijhim District, C. A. 9 Q. 
 
 pcUed by rvile of Court to reconvey B. D. 404, on the similar question 
 
 on payment of principal, interest, of a penal rent. In the Indian 
 
 and costs. 7 Geo. 2, c. 20 ; C. L. Contract Act the knot is cut by 
 
 P. Act 1852 (15 & lOVict. c. 76) abolishing the distinction alto- 
 
 3. 219. Boadr? of the kind last gether : see s. 74. 
 
 II H 2
 
 468 
 
 MISTAKE. 
 
 Town- 
 sliend r. 
 Stan- 
 groom. 
 
 defence if he can show that the written contract does not 
 represent the real agreement : and this whether the con- 
 tract is of a kind required by law to be in writing or not. 
 Thus specific performance has been refused where a clause 
 had been introduced by inadvertence into the contract (A'). 
 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 bo satisfied that the agree- 
 ment would not have been entered into if its true effect 
 had been understood " (/.•). 
 
 On the other hand a party cannot, at all events where 
 the contract is required by Law to be in writing, come 
 forward as plaintiff to claim the performance of the real 
 agreement which is not completely expressed by the 
 written contract. Thus in the case of Townshend v. 
 Stangrooni (/) (referred to by Lord Hatherley when V.-O. 
 as perhaps the best illustration of the principle) [m) there 
 were cross suits [n), one for the specific performance of a 
 written agreement as varied by an oral agreement, the 
 other for specific performance of the written agreement 
 without variation ; and the fact of the parol variations 
 from the written agreement being 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 ^^Titten agreement, may be a decree for the 
 specific performance of the agreement as it stands at the 
 plaintiff's cost (o). 
 
 (/.■) WatMn V. Marston, 4 D. M. 
 G. 230, 240. 
 
 (/) G Vcs. 328. 
 
 {m) IJ'ood V. Hearth, 2 K. & J. 33, 
 42. 
 
 («) Under the Judicature Acts 
 there would be an action and 
 counter-claim. 
 
 (o) See Jliffffiiison v. Clours, 15 
 Vcs. .')1G, 525 ; and such, it is sub- 
 mitted, is the real effect of Fife v. 
 
 Clayton, 13 Ves. 546, s.c. more fully 
 given 1 C. P. Cooper (temp.Cotteu- 
 ham) 351 : the different statement 
 in Dart, V. & P. 1116, appears on 
 examination to be hardly borne out 
 by eitlier report, and is at all events 
 not consistent with Townshoid v. 
 Stangroom, or with the general doc- 
 trine of the Court. In this case 
 Lord Eldou laid hold on the plain- 
 tiff's attempt to set iip a variation,
 
 IN EXPRESSION : PAROL VAKIATIONS. 469 
 
 But it is open to a plaiiitifl to admit a parol addition or 
 variation made for the defendant's benefit, and so enforce 
 specific performance, "svliicli the defendant might have 
 successfully resisted if it had heen sought to enforce the 
 written agreement simply. This was settled in Martin v. 
 Pyeroft {p) : " The docifc^ion 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 agreement in writing not mentioning the pre- 
 mium] 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/. That case intro- 
 duced no new principle as to the admissibility of parol 
 evidence" (q). 
 
 It is to be observed (though the observation is now Relation 
 familiar) that these doctrines are in principle independent fioctriue to 
 of the Statute of Frauds (;•). What the fourth section of statute 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 showing that the writing on which the other 
 insists does not represent the real agreement ; it is only 
 when the real agreement cannot be positively established 
 by a writing which satisfies the requirements of the statute 
 that the statute interferes. 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, be- 
 cause it is not in writing. A good instance of this state 
 
 combined vrith. an offer in general au offer contained in his own plead- 
 
 terms to perform the agreement, as ings ' ' to take up the other construc- 
 
 amountiug to an offer to perform tion "which the defendant was at one 
 
 whatever the Court might consider time willing to have performed : " 
 
 the real agreement, perhaps even if Clotccs v. Higy'visoii, 1 Ves. &; 33. 
 
 established by evidence which would 524, 535. 
 otherwisehave been admissible only [p) 2 D. M. G-. 785. 
 
 by way of defence. But after a [q) Per Stuart, V.-CPrjct; v. Zcy, 
 
 plaintiff has failed to support his 4 G-iff. at p. 253. 
 own construction of an agreement ()) See per Lord Redesdale, in 
 
 which the Court thinks ambiguous, CUnan v. Cooke, 1 Sch. & L. 33-39. 
 he cannot take advantage of such
 
 470 MisTAKi:. 
 
 of things is Price v. Lcij (-s). The suit was Lroughl 
 mainly to set aside the written agreement, and so far 
 succeeded. It appears not to have been seriously attempted 
 to insist upon the real agreement which had not been put 
 into waiting. 
 
 B. Rectification of Instruments. 
 
 "When the parties to an agreement have determined to 
 embody their common intention in the appropriate and 
 conclusive form, and the instrument meant to effect this 
 purpose is by mistake so framed as not to express the real 
 intention which it ought to have expressed, it is possible 
 in many cases to correct the mistake by means of a juris- 
 diction formerly peculiar to courts of equity, and still 
 reserved, as a matter of procedure, to the Chancery 
 Division. 
 
 Courts of equity " assume a jurisdiction to reform in- 
 struments which, either by the fraud or mistake of the 
 drawer, admit of a construction inconsistent with the true 
 agreement of the parties. And of necessity, in the exercise 
 of this jm'isdiction, a court of equity receives evidence of 
 the true agreement in contradiction of the written instru- 
 ment." Eelief will not be refused though the party seeking 
 relief himself drew the instrument ; for " every party who 
 comes to be relieved against an agreement which he has 
 signed, by whomsoever di'awn, comes to be relieved against 
 his own mistake " (/). The jurisdiction is a substantive 
 and independent one, so that it does not matter whether 
 the party seeking relief would or would not be able to get 
 the benefit of the true intention of the contract by any 
 other form of remedy {(i). It would be neither practicable 
 nor desirable to discuss minutely the very numerous cases 
 in which this jurisdiction has been exemplified. The most 
 
 («) 4 Giff. 235, affii-mcd on appeal, 210, 219. 
 32 L. J. Ch. 531. (k) Drwff v. Lord rarkcr, 5 Eq. 
 
 (/) Hall V. S/oric, 1 Sim. & St. 131.
 
 IN I'.XI'KESSION : IIKCIIFK ATIOX. 471 
 
 important thing to be known about a discretionary power 
 of this kind is whether there is any settled rule by which 
 its exercise is limited. In this case there are ample 
 authorities to show that there is such a rule, and they 
 expound it so fully that there is very little left to bo added 
 by way of comment. 
 
 The manner in which the Court proceeds is put in a rrlnciples 
 very clear light by the opening of Lord Eomilly's judg- courts of 
 ment in the case of JLa-rd// v. Payko' Cr) : — equity will 
 
 •^ ^ ' rectiiy in- 
 
 " lu matters of mistake, the Court iiiicloiibtedly has jurisdiction, aud 
 though this jurisdiction is to be exercised with great caution and care, 
 still it is to be exercised in all cases where a deed, as executed, is not 
 according to the real agreement between the parties. In all cases the 
 real agreement must be established by evidence, whether parol or written ; 
 if there be a previous agreement in writing which is unambiguous, the 
 deed will be reformed accordingly ; if ambiguous parol evidence may be 
 used to explain it, in the same manner as in other cases where parol 
 evidence is admitted to explain ambiguities in a written instrument." 
 
 In the case of " a previous agreement in writing which Previous 
 is unambiguous " the Coiu't cannot admit parol evidence ^jf^-^^fno. 
 to rectify the final instrument executed in accordance with not al- 
 such agreement any more than it could allow the party to be varied, 
 maintain a suit, while the agreement was yet executory, 
 first to rectify the agreement by parol evidence and then 
 execute it as rectified — which, as we have seen, it will not 
 do. For this would be to " reform [the instrument] by 
 that evidence, which if [the instrument] rested in fieri, 
 would be inadmissible to aid in carrying it into execu- 
 tion " (». 
 
 This language, it will be seen, is not in terms confined 
 to cases within the Statute of Frauds. But it might 
 perhaps well be argued, should the occasion for it ever 
 arise, that no other cases were in fact contemplated by 
 Lord St. Leonards in giving the judgment now cited. 
 
 (.;■) 19 Beav. 305, 308, (y) Per Lord St. Leonards, Bavics 
 
 V. Fitton, 2 Dr. & War. 225, 233.
 
 472 
 
 MISTAKE. 
 
 Oral evi- If tliciG Lg no previous agreement in writing, tlio 
 the real niodern rule is that a deed may he rectified on oral evi- 
 agreement dence of wliat was the real intention of the parties at the 
 
 admissible . , t -, 
 
 in the time, if clear and uncontradicted. 
 
 any^othe^/ But if the alleged mistake is positively denied by any 
 if not con- party to the instrument, parol evidence alone is inadmissible 
 to prove it. The rule is contained in two judgments given 
 by Lord St. Leonards in the Lish Court of Chancery. 
 He said in Alexander v. Croshie {£) : — 
 
 " In all the cases, perhaps, in which the Coui't has reformed a settle- 
 ment, there has been something beyond the parol evidence, such for 
 instance as the iastructions for preparing the conveyance or a note by 
 the attorney, and the mistake properly accounted for ; but the Court 
 would, I think, act where the mistake is clearly established by parol 
 evidence, even though there is nothing in writing to which the parol 
 evidence may attach." 
 
 "What is here meant by " clearly established " is shown 
 by his later statement in Mortimer v. ShortaU{a) : " There 
 is no objection to correct a deed by parol evidence, when 
 you have anything beyond the parol evidence to go by. 
 But where there is nothing but the recollection of witnesses, 
 and the defendant hij his answer denies the case set uj) by the 
 phintiff^ the plaintiff appears to be without a remedy. 
 Here I am not acting upon parol evidence alone ; the 
 documents in the cause, and the subsequent transactions, 
 corroborate the parol evidence, and leave no doubt in my 
 mind as to a mistake having been made." 
 
 Again, it was said in a case on the equity side of the 
 Court of Exchequer, where the whole subject was consider- 
 ably discussed : 
 
 " It seems that the Court ought not in any case, ivhcrc the misialce is 
 denied or not admitted htj the answer, to admit parol evidence, and upon 
 that evidence to reform an executory agreement " (i). 
 
 (z) LI. & G. temp. Sugdeu, 1-15, {„) 2 Dr. & War, 3G3, 374. 
 
 li)0. Ci^, JJavies V. Filton, '2 Dr. & {/>) Vcv Aldcvson, V>. Atti/.-Genl. 
 
 War. 233. v. >'^ittccll, 1 Y. & C. Ex. 559, 583.
 
 IN EXPRESSION : RECTIFICA'IION. 473 
 
 On the other hand, wlieu tlie mistake is admitted, or not 
 positively denied, written instruments have repeatedly been 
 reformed on parol evidence alone {c). 
 
 Thus far as to the nature of the evidence required ; next What 
 let us see what it must prove. It is indispensable that the proved : 
 evidence should amount to "proof of a mistake common common 
 to all the parties" (c/), /. c. a common intention different of parties 
 from the expressed intention and a common mistaken sup- f^^j"''"*^ 
 position that it is rightly expressed : it matters not, as we expressed 
 have seen, by whom the actual oversight or error is made 
 which causes the expression to be wrong. The leading 
 principle of equity on the head of rectijfication, — that 
 there must be clear proof of a real agreement of both 
 parties different from the expressed agreement, and that a 
 different intention or mistake of one party alone is no 
 ground to vary the agreement expressed in writing, — was 
 distinctly laid down by Lord Hardwicke as long ago as 
 1749 {e). 
 
 The same thing was very explicitly asserted in Fowler 
 V. Folder (,/') : 
 
 "The power which the Court possesses of reforming written agree- 
 ments where there has been an omission or insertion of stipulations 
 contrary to the intention of the parties and under a mutual mistake, is 
 one which has been frequently and most iisefuUy exercised. Eut it is 
 also one which should 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 upon evidence of a different 
 intention of the clearest and most satisfactory description. It is clear 
 that a person who seeks to rectify a deed upon the groimd 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 con- 
 
 (c) Toionshend v. Stangroom, 6 as it finally stood, and there was 
 
 Ves. 328, 334; Ball t. Storie, 1 nothing to show how this had hap - 
 
 Sim. & St. 210 ; Dntiff v. Lord pened. 
 
 rarker,b'Eiq^.\'6l; Ex parte National [d) Per Lord Romilly, M. E. 
 
 Provincial Banlc of England, 4 Ch. Bcntley v. Mackay, 31 Beav. at p. 
 
 D. 241 ; Wehnan v. TFclman, 15 Ch. 151. 
 
 D. 570, where a jDower of revoca- (e) ILenldc v. llnyal Exch. Asscc. 
 
 tion appearing in the first di'aft had Co. 1 Ves. Sr. 318. 
 
 been struck out in the instrument (/) 4 De G. Sc J. 250, 264.
 
 474 MISTAKE. 
 
 formable continued concurrcnlly in the minds of all parties down to the 
 time of its execution, and also must be able to show exactly and precisely 
 the form to which the deed ought to be brought. For there is a material 
 diflEerence 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 concurrent intention of all parties for whom the Court ia 
 virtually making a new written agreement " {g). 
 
 Proof of So it has been laid down by tbo American Supreme 
 
 party's Coiu't that equity may compel parties to perform their 
 intention agreement, but has no power to make agreements for 
 do. parties and then compel them to execute the same (A) ; to 
 
 the same effect in Roohe v. Lord KemiiKjton {i) by Lord 
 Hatherley when V.-C. ; and more recently by James, L. J. 
 when V.-C. in Maclicnzie v, Coiihon (/.•). On this principle, 
 as we have already seen, the jurisdiction to rectify instru- 
 ments does not extend beyond particular expressions. The 
 Court cannot alter that form of instrument which the 
 parties have deliberately chosen (//). 
 
 The Court therefore cannot act on proof of what was 
 intended by one party only (/). And when an instrument 
 contains a variety of provisions, and some of the clauses 
 may have been passed over without attention, " the single 
 fact of there being no discussion on a particular point will 
 not justify the Court in saying that a mistake committed 
 on one side must be taken to be mutual " {in). The Comi 
 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 (n). 
 
 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 (o). 
 
 (r/) Tp. 264-0. iin) Thompson v. Whiimorc, 1 J. 
 
 (A) Uimt V. Jlo/i.sinaiiicrc'n ^Ldin. & H. 268, 276. 
 
 1 Peters, 14, p. 407 above. («) Blackic v. ClarJi, 15 Bcav. 
 
 (0 2 K. & J. 753, 764. 595. 
 
 (/r) 8 Eq. 368, 375. (o) Eqnilahlc Insurance Compa)ii; 
 
 {() mils v. Jiuicland, 4 D. M. G. v. Jlearne, 20 Wallace (Sup. Ct. U. 
 
 430, 436. S.) 494.
 
 IN' EXI'RESSION : I{i;CTIl<itATlOX. 475 
 
 There exists a rare class of cases (we know of only two Tossible 
 complete instances at present, and none in a Court of ^^^hereone 
 Ai)])eal) in whieli tlio rule that a common mistake must he V^^'^J acts 
 
 tis otiicr s 
 
 shown may admit of modification. This is where one agent. 
 party acts as another's agent in preparing an instrument 
 which concerns them both — (in both the particular cases 
 referred to an intended husband had the marriage settle- 
 ment prepared in great haste and without any advice being 
 taken on the wife's part) — and that other gives no definite 
 instructions, but relies on the good faith and competence 
 of the acting party to cany 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 agreement. And the instrument actually prepared, 
 and executed by the other party on the assumption that 
 it is properly framed, may be corrected accordingly (j)). 
 
 But cases of tins 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 tlie intention of the other party was in fact 
 the common intention of both. Compare p. 448 above. 
 
 The most frequent application of the juiisdiction of Reforma- 
 equity to rectify instruments is in the case of marriage gettie- 
 and other family settlements {q), when there is a discre- ments 
 pance between the preliminary memorandum or articles to previous 
 and the settlement as finally executed. As to marriage ^'^'^ticles. 
 settlements, the distinction w^as formerly held that if both 
 the articles and the settlement were ante-nuptial, the 
 settlement should be taken in case of variance as a new 
 agreement superseding the articles, unless expressly men- 
 tioned to be made in pursuance of the articles ; but that 
 a post-nuptial settlement would alwaj^s be reformed in 
 
 {p) Clark V. Girdwood, 7 Ch. D. case is Lovcsij v. Smith, 15 Ch. D. 
 
 9, on the authority of Corloj v. 655. 
 
 Lord Stafford, 1 De 0. & J. 238, {q) See fui-ther on this subject 
 
 whei'e however there was uo recti- Dav. Conv. 3, pt. 1. Appx. No. 3. 
 fication : a hiter and very similar
 
 47G MISTAKE. 
 
 accordance with, ante-nuptial articles. The modern doc- 
 trine of the Court has modified this as follows, so far as 
 regards settlements executed after preliminary articles but 
 before the marriage : 
 Special 1 . When the settlement purports to be in pursuance of 
 
 rules astoj.i -i i t • i iji 
 
 this. articles previously entered into, and there is any variance, 
 
 the variance will be presumed to have arisen from mistake. 
 
 2. When the settlement does not refer to the articles, it 
 will not be presumed, but it may be proved, that the 
 settlement was meant 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 (r). 
 
 A settlement may be rectified even against previous 
 articles on the settlor's uncontradicted evidence of de- 
 parture from the real intention, if no further evidence can 
 be obtained (.s) . 
 
 The fact that a provision inserted in a settlement {e.g. 
 restraint on anticipation of the income of the wife's pro- 
 perty) 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 instructions given by them (/). 
 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 : see 
 pp. 452 — 3 above. 
 At whoso It is not necessary that a person claiming to have a 
 fication ^' Settlement rectified should be or represent a party to the 
 
 (?•) l^old V. Hutchinson, o D. M. iustrumcnts creating executory 
 
 G. 558, 5G7, 5G8. In reforming a trusts, see SacJcvillc- West v. Viscount 
 
 settlement the intent rather than Hohncsdale, L. li. 4 II. L. 543, 
 
 the literal words of the articles will 555, 565. 
 
 be followed: for a late instance see («) Smith v. Iliffc, 20 Eq. GC6 ; 
 
 Cofjan V. Dujficlil (C. A.) 2 Ch. D. llanlcy v. Pearson, 13 Ch. D. 545. 
 44 . As to the general principles on (t) Torre v. Torre, 1 Sm. & G. 
 
 which courts of eqnity construe 518,
 
 cases. 
 
 IN EXPRESSION : KECTIEICATIOX. 477 
 
 original contract, or be within the consideration of it {>(). maybe 
 But a deed which is wholly voluntary in its inception 
 cannot be reformed if tlie grantor contests it, but must 
 stand or fall in its original condition without alteration (.r) ; 
 the reason of this has been explained to be tliat an agree- 
 ment between parties for the duo execution of a voluntary 
 deed is not a contract which the Court can interfere to 
 enforce (//). 
 
 But the Court has power to sot aside a voluntary deed 
 in part only at the suit of the grantor if he is content that 
 the rest should stand {z). 
 
 Some cases of a rather peculiar kind which have already Option to 
 been touched upon under another heading (a) must here gef^^slde^' 
 be mentioned as being in apparent conllict with one of the in certain 
 
 1 T. i. L ^ peculiar 
 
 rules above stated. pnsp« 
 
 In these instances the plaintiff sought to reform an 
 instrument, and satisfied the Court that it did not repre- 
 sent what was his own intention at the time of execution, 
 but failed to establish that the other party's intention was 
 the same ; and since it was " in the power of the Court to 
 put the parties in the same position as if the contract had 
 not been executed," an option was given to the defendant 
 of " having the whole contract annulled, or else of taking- 
 it in the form which the plaintiff intended" (&). This is 
 hardly an exception to the rule that the Court does not 
 interfere to rectify a mistake unless it is shown to have 
 
 (m) Thompson v. Whitmore, 1 J. & party when lie has rejected a pro- 
 
 H. 268, 273. per offer to rectify it. It was 
 
 {x) Broun v. Kennedy, 33 Beav. at agreed between A. and B. that A. 
 
 p. 147. should give B. the exclusive right 
 
 {y) Lister v. Hodgson, 4 Eq. at of using a patent in certain dis- 
 
 p. 34. tricts : a document was executed 
 
 (s) Turner v. Collins, 7 Ch. 329, which was only a licence from A. 
 
 342 ; and see per Turner, L. J. to B. Some time afterwards B. 
 
 Bcntley v. Machay, 4 D. F. J. 28G. complained that this did not carry 
 
 (ff) Supra, p. 430. out the intention, and A., admit- 
 
 {b) Harris v. Tcppercll, 5 Eq. 1, ting it, offered a rectification. B. 
 
 5 ; Gan-ard v. Frankcl, 30 Beav. refused this and sued for cancella- 
 
 445 ; Bloomer v. Spittle, 13 Eq. 427. tion. Held that the relief prayed 
 
 Conversely, an agreement will not for could not be granted : Laver v. 
 
 be cancelled at the suit of one Dennett, 109 U. S. 90.
 
 478 
 
 MISTAKE. 
 
 Mistake in 
 ■wills. 
 
 Minor 
 points of 
 procedure. 
 
 been common to botli parties ; for liere tlio rectification is 
 only an alternative proposal. The Court says to the de- 
 fendant in effect : Either the agreement between you was 
 such as the plaintiff says it was, or there was no real agree- 
 ment at all. Take which of these two views you please, 
 but it is certain that the terms you have contended for 
 were never agreed to by the plaintiff, and by them at all 
 events he is not to be bound. 
 
 It is sometimes said, but inexactly, that in certain cases 
 wills may be rectified on the ground of mistake (c) . 
 
 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 transferring the action (d) . 
 
 "When a conveyance is rectified the order of the Court is 
 sufficient without a new deed. A copy of the order is in- 
 dorsed on the deed which is to be rectified (e). 
 
 {c) On this point see the Appen- 
 dix, Note M. 
 
 {d) Storey v. Waddle (C. A.), 4 
 Q. B. D. 289. 
 
 {e) White V. White, 15 Eq. 247.
 
 ( 479 ) 
 
 CHAPTER IX. 
 Misrepresentation and Fraud. 
 
 Part 1. — MisRErRESENTATiox. 
 
 The consent of one party to a contract may be caused by Misrepre- 
 a misrepresentation made by the other of some matter, jj^fraudu- 
 sucti that, if he had known the truth concerning it, he lent or 
 would not have entered into the contract. Putting off for dulent. 
 a while the closer definition of the term, we see at once 
 that there is a broad distinction between fraudulent and 
 non-fraudulent misrepresentation. A statement 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 
 it is wrongful in a moral and also in a legal sense, and the 
 conduct of the party making it is called Fraud. There 
 has never been any substantial difficulty as to the treat- 
 ment of such conduct in English courts of justice. On the 
 other hand a statement which in fact is not true and mis- 
 leads the other party may be made by mere carelessness or 
 misadventure, or with an actual belief in its truth, which 
 belief may or may not be reasonably entertained. The 
 treatment of cases of this kind is far more difficult. Comis 
 of common law and of equity have approached the subject 
 by different methods and with different habits of thought 
 and language : and, though the terminology is becoming 
 much less confused than it was, it cannot yet be said to be 
 settled or exact in general usage. It has been affected by 
 complication and confusion arising from more than one
 
 480 MISKEPRESENTATION AND FRAri). 
 
 source. The most fruitful of tliese has been the unfortunate 
 use of the term Fraud in the Court of Chancery as nomcn 
 fjencmUsisunum (a). The probable historical explanation 
 of tliis habit is that in earlier times it was the only means 
 of extending and completing a beneficial jurisdiction ; but 
 in itself it is open to grave objection on practical as well 
 as scientific grounds (/>). After having given us enough 
 and too much of such phrases as " constructive fraud," 
 conduct " amounting to fraud in the contemplation of a 
 Court of Equity," transactions " fraudulent in the eyes of 
 this Court" (c), and the like descriptions, under which it 
 is possible to bring almost anything (d) , it now stands 
 judicially condemned. Lord Bramwell said (as Lord 
 Justice) in the Court of Appeal in 1878 : " I do not 
 understand legal fraud. To my mind it has no more 
 meaning than legal heat or legal cold, legal light or legal 
 shade. There never can be a well-founded complaint of 
 legal fraud, or of anything else, except where some duty 
 is shown, and correlative right, and some violation of that 
 duty and right. And when these exist it is much better 
 that they should be stated and acted on than that recourse 
 should be had to a phrase illogical and unmeaning, with 
 the consequent uncertainty " (c). 
 
 Legal or constructive fraud, then, may be discarded as 
 a worse than useless figment. Actual fraud, as the less 
 troublesome part of the subject, will be dealt with later. 
 We now have to consider w^hat is the law with regard to 
 statements inducing a contract which are not fraudulent, 
 and in what form it is best expressed. 
 
 («) See S Ch. 124. (c) This language was used in the 
 
 (i) The ambiguous use of the Court of Appeal as late as 1864: 
 
 word leads on the one hand to un- see 4 D. J. JS. 328. 
 
 founded charges of fraud in the {d ) See the M'onderfully miscel- 
 
 strict sense, and on the other hand lancous contents of the chapters on 
 
 to the absence of fraud iu that "ActualFraud" and "Constructive 
 
 sense being set up iu answer to a Fraud" in Story's Eq. Jm-isp. 
 
 case which is really of a quite {<) JTcir v. Jhll, 3 Ex. D. at p. 
 
 dillercnt kind. 243. Cp. Julife v. Baker, 11 Q. B. 
 
 D. 255.
 
 GENERAL DOCTRINE OF REPRESENTATIONS. 481 
 
 A view countenanced by the language to bo found in view 
 more than one class of decisions in the Court of Chancerj, suggested 
 if not actually involved in some of these decisions, is that cisions in 
 under certain conditions a representation which is not ^^^^ .•^'j.^, 
 operative as part of a contract, or by way of estoppel, or prescnta- 
 
 ijions 
 
 as amounting to an actionable wrong, may still bo binding have a 
 on the person making it. If, having induced a contract, legal value 
 the statement turns out to be untrue, the contract may being ele- 
 be voidable, or specific performance of it may be refused ^n^ract^ ^ 
 without affecting its validity in other respects ; if, without 
 any contract, the party to wliom it is made is prejudiced 
 by acting upon it, the party from whom it proceeded may 
 be bound to " make his representation good." As regards 
 the first branch of this proposition, assuming that to some 
 extent it is correct, a doubt remains whether, consistently 
 with the authorities, any general rule can be laid down, or 
 there are only a set of generically similar rules applicable 
 to certain special kinds of contracts. Such rules are beyond 
 question established in several cases, in which a more or 
 less extensive duty of giving correct information is imposed 
 on one of the parties. The authorities neither invite nor 
 forbid a generalization. The Indian Contract Act (s. 18) 
 does generalize the rule (_/), and the same course was 
 taken, with a caution that it went beyond positive autho- 
 rity, in the two first editions of this book {[/). As to the 
 second branch, the supposed equitable doctrine of " making 
 representations good " has been too often asserted for a 
 text- writer to say on his own responsibility that it does not 
 really exist as distinct from the more simple principle that 
 people must perform their contracts. The present writer 
 formerly felt bound to accept it with an indication of its 
 difficulties (h). A recent judgment to be presently men- 
 tioned has cleared the way to greater freedom of criticism. 
 
 When we consider on principle this kind of doctrine and Criticism 
 language as to the effect of representations, the following ^^^^^^ 
 
 if] See Note 0. {h) P. 497, 2ncl cd. 
 
 (r/) P. 464, 2ud ed. 
 
 r. II
 
 482 MISREPRESENTATION AND FRAUD. 
 
 reflections occur. To say that a man is answerable for 
 the truth of statements made by him in good faith is to 
 say that it is his legal duty to see that they are borne out 
 or to make compensation for their not being borne out. 
 Whence and of what nature is this duty ? If the state- 
 ment is of a fact, and made as an inducement to another 
 person to enter into a contract, the substance of the duty 
 is no other than this, that the person making the statement 
 undertakes that it is true. In that case must not his 
 undertaking be a term in the contract ? For if not, why 
 should it bind him ? As to estoppel, a statement may be 
 binding by way of estoppel quite apart from any promise 
 or agreement ; but where it is part of the transactions 
 constituting a contract, it seems needless to assume an 
 estoppel. The estoppel is merged in the contract. 
 
 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 fufuro, if binding at all, must be binding 
 as contracts (/) . 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. And a 
 promise is none the less a promise, a contract is none the 
 less a contract, for being described in a cumbrous and 
 inexact manner. 
 Excep- The cases in which a special duty of giving correct 
 
 cases. information exists may on this view be treated as positive 
 exceptions to the common rule, introduced on special 
 grounds of policy. But they may also be treated, and I 
 venture to think better treated, in another way. However 
 
 (J) Lord Selborne, Maddison v. Aldcrson, 8 App. Ca. at p. 473.
 
 EFFECT OF REPRESENTATIONS, 48'i 
 
 different their character in other respects, they have this 
 one feature in common. The nature of the contract is 
 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 thing contracted for ; and the state- 
 ments in which completeness and accuracy are in various 
 degrees required are really part of that description. 
 
 The result of this view, therefore, is that the true Questions 
 question is in every case what were the terms of the preTenta- 
 contract. But this statement is subject to the qualification *^°^./?' 
 that in particular classes of cases there are fixed rules as the ques- 
 
 to what kind of statements shall be deemed part of the ^J^^ ^'^'^* 
 
 J- the con- 
 
 contract ; and in one or two cases this rule is extended so tract 
 
 as to make it an essential term not merely that the ^^^ ^^^' 
 
 information given shall be true, but that all material 
 
 information shall be fully as well as truly given. 
 
 It may be well to state as concisely as may be the rules The two 
 given by the two different theories now in question. The stated, 
 rule suggested by the tendency of decisions and dicta in 
 equity may be thus expressed (subject to qualifications 
 which need not be dwelt upon at this stage) : A contract 
 (or at all events every contract included in any one of 
 several important species) is voidable at the option of a 
 party who has been induced to enter into it by a statement 
 contrary to the fact made by the other party without 
 reasonable grounds for believing it, though in fact he does 
 believe it. 
 
 The other doctrine, which has always been more or less 
 distinctly implied in the treatment of these matters by 
 courts of common law, was enunciated with considerable 
 clearness by the Exchequer Chamber in 1863 (/r). This 
 can be and has been regarded as the statement of a 
 principle of common law which may be in conflict with 
 the principles of equity, and in case of conflict must yield. 
 But in 1880, after the Judicature Acts had been five 
 
 (A) Belui V. Burness, 3 B. & S. quoted in Sir W. R. Anson's Law 
 751, 32 L. J. Q. B. 204; fully of Contract, p. 139. 
 
 1 I 2
 
 484 
 
 MISREPRESENTATION AND FRAUD. 
 
 Jiiclgment 
 of Ste- 
 phen, J. in 
 Alder- 
 son r. 
 Maddison. 
 
 Doctrine 
 of " ma- 
 king- re- 
 presenta- 
 tions 
 srood." 
 
 years in operation, Mr. Justice Stephen took the same 
 view in a considered judgment (/), reviewing at some 
 length the leading authorities in equity on the topic of 
 "making representations good." The general principles 
 are defined as follows : — 
 
 " It seems to me that every representation false when 
 made or falsified by the event must operate in one of three 
 ways if it is to produce any legal consequences. First, it 
 may be a term in a contract, in which case its falsity will, 
 according to circumstances, either render the contract 
 voidable, or render the person making the representation 
 liable either to damages or to a decree that he or his 
 representatives shall give effect to the representation. 
 Secondly, it may operate as an estoppel preventing the 
 person making the representation from denying its truth 
 as against persons whose conduct has been influenced by 
 it. Tbii'dly, it may amount to a criminal offence. The 
 common case of a warranty is an instance of a represen- 
 tation forming part of a contract. Pickard v. Sears [m) 
 and many other well-known cases are instances of repre- 
 sentations amounting to an estoppel. A false pretence by 
 which money is obtained is an instance of a representation 
 amounting to a crime." There are also representations 
 which, though neither part of a contract nor amounting to 
 crimes, may be actionable as wrongs (;?). We shall have 
 to recur to these hereafter. 
 
 The particular case before Mr. Justice Stephen was one 
 of a promise to make a provision by will. Promises of 
 this kind, and promises on the faith of which marriages 
 have been contracted, have been the chief but not the only 
 occasions of those judicial statements which appear to 
 
 (/) Alderson v. Maddison, 5 Ex. 
 D. 293 : revd. in C. A. 7 Q. B. 
 D. 174, -without discussing this 
 question, on the ground that there 
 was no jjart performance siifficient 
 to take the case out of the Statute 
 of Frauds. The House of Lords 
 affirmed the decision of the Court 
 
 of Appeal, Maddison v. Alderson, 8 
 App. Ca. 467, on the same ground : 
 on the general question the opinion 
 of Stephen, J. seems to be con- 
 firmed. 
 
 (w.) 6 A. & E. 469. 
 
 (n) Paslcij V. Freeman, 3 T. R. 51 ; 
 and in 2 Sm. L. C.
 
 EFFECT OF RFPRESEXTATIOXS. 485 
 
 ascribe some kind of peculiar force to representations 
 which are not exactly contracts. There are likewise cases 
 of "representations" accompanying undoubted contracts; 
 and here the questions occur whether the state of facts 
 regarded by equity judges as sho^ving a representation 
 which the party was bound to make good might not 
 equally well in every case— or would not in all probability, 
 by minds trained in the more analytical methods of com- 
 mon-law procedure — have been treated as establishing a 
 collateral promise or warranty, and also whether the 
 judges who used this language really meant anything dif- 
 ferent. This is not directly connected with the question 
 of the avoidance of contracts for misrepresentation ; nor is 
 that question discussed by Mr. Justice Stephen. But if it 
 can be maintained that in the one class of cases the so- 
 called " representation " which has to be " made good " is 
 a promise in the strict sense, as an element in a true con- 
 tract, or is nothing, there will evidently be much less 
 difficulty in treating the other class, with which we are 
 here immediately concerned, on similar principles. 
 
 A fresh examination of the authorities on the subject 
 of " making representations good " has accordingly been 
 undertaken, and has led the writer to the conviction that, 
 notwithstanding the difficulties presented by the form in 
 which many statements of more or less authority have 
 been made, the view propounded by Mr. Justice Stephen 
 is the correct one. A review of the cases, the insertion of 
 which in this place would delay us too long in proceeding 
 to the main subject, will be found in the Appendix (o). 
 
 On the whole then we shall say that a representation which Repre- 
 induces a contract, and is not true in fact, but which is not j^^"^ frau^' 
 such as to create a liability ex delicto, can affect the validity dulent, 
 or operation of the contract only in the following cases : — contract^ 
 
 1. If it is itself a term in the contract; that is, if the i^^stbe— 
 party making it has promised, as part of his promises con- ^j\g ^^.^^^ 
 
 mise. 
 (o) Note N.
 
 486 
 
 MISREPRESENTATION AND FRAUD. 
 
 2. Cou- 
 dition. 
 
 Warranty 
 
 distin- 
 
 gnished. 
 
 3. Material 
 within 
 rules as to 
 special 
 kinds of 
 contracts. 
 
 Contracts 
 specially 
 
 treated. 
 
 stituting the contract undertaken by him, that it shall he 
 found true. Here, if it proves untrue, the contract is not 
 avoided, hut broken : and the other party may be, accord- 
 ing to the nature of the case and circumstances, discharged, 
 or may have a claim for damages. 
 
 2. If the contract is made conditional on its truth ; that 
 is, if the parties mean to contract only on the footing of its 
 being true. Here the statement is said to be a condition. 
 We have already become acquainted with some instances 
 of such conditions under the heads of Impossibility and 
 Mistake. 
 
 From both these cases must be distinguished that of a 
 distinct collateral agreement that a representation shall be 
 true, so that its untruth, if so it prove, shall in no case 
 avoid the contract, but shall be matter for compensation. 
 Such an agreement is called a wamintij {p). 
 
 3. If it falls within the special rules laid down as to the 
 effect of representations inducing or accompanying parti- 
 cular classes of contracts. 
 
 The contracts which are thus exceptionally treated are 
 the following. It will be observed that, as we have already 
 said, the common mark which makes them for this purpose 
 a special class is that the subject-matter of the contract, or 
 a material part of it, is within the peculiar knowledge of one 
 party, and the other has to rely, in the first instance at all 
 events, on the correctness of the statements made by him. 
 
 (A) Marine insurance. 
 
 (B) Fire insurance. 
 
 (C) Suretyship. 
 
 (D) Sales of land. 
 
 (E) Family settlements. 
 
 (F) The contract of partnership, and thence, by analogy, 
 
 (/;) The use of the terras " war- 
 ranty " and "condition" has been 
 unsettled. A condition as defined 
 in the text is sometimes called a 
 " warranty in the nature of a con- 
 
 dition" (see 8 E. & B. 302, per 
 Chanuell, B.). But it is obviously 
 desirable that technical terms, if 
 used at all, should be used with an 
 exact and constant meanins'.
 
 AVARRANTIES A^•D CO\])ITIONS. 487 
 
 contracts to take shares in companies and contracts of pro- 
 moters [q) . 
 
 We proceed to follow out the topics now indicated in 
 the order above given. And first we must say something of 
 representations which amount to a condition or a warranty. 
 
 Representations amounting to Warranti/ or Condition. 
 
 The law on this subject is to be found chiefly in the Warranty 
 decisions on the sale of goods ; the principles however are dition!"" 
 of general importance, and not without analogies, as we 
 shall presently see, in other doctrines commonly treated as 
 quite peculiar to equity. We therefore mention the lead- 
 ing points in this place, though very briefly. In the first 
 place a buyer has a right to expect a merchantable article 
 answering the description in the contract (r) ; but this is 
 not on the ground of warranty, but because the seller does 
 not fulfil the contract by giving him something different. 
 "If a man offers to buy 2)eas of another and he sends him 
 beans, he does not perform his contract ; but that is not a 
 warranty ; there is no icarrantij that he should sell him 
 peas ; the contract is to sell peas, and if he sends anything 
 else in their stead it is a non-performance of it" (s). 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 
 
 [fl) It is not easy to say whether v. Hoplcins, 4 M. & W. 399, 404 ; 
 
 this last extension would have been ' ' as sound an exposition of the law 
 
 adopted by courts of common law as can be," per Martin, B. Azemar 
 
 beforetlie Judicature Acts. Kenmdij v. Casclla (Ex. Ch.), L. R. 2 C. P. 
 
 V. Fanama, '^•c. Mail Co. L. E.. 2 Q. 677, G79. There is a class of cases, 
 
 B. 580, p. 427, above, seems against however, in which it is commonly, 
 
 it : but the question was not there and perhaps conveniently, said that 
 
 fau-ly raised, nor is it now of any there is a ivarraniy that the goods 
 
 practical importance. shall be merchantable besides the 
 
 [f) Jones V. Just, L. R. 3 Q. B. condition that they shall answer the 
 
 197, 204. description : Modi/Y. Gregson, L. R. 
 
 {s) LordAbiuger, C.B.in Chanter 4 Ex. 49.
 
 488 MISREPRESENTATION AND FRAUD. 
 
 accept goods of a different hind {t). It is open to the 
 parties to add to the ordinary description of the thing con- 
 tracted 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 or keep the goods even if there has been a bargain 
 and sale of specific goods {u). When sj)ecific goods have 
 been sold with a warranty the buyer cannot reject them [x), 
 but may obtain compensation by way of deduction from 
 the price, or by a cross action {y) . 
 
 When there has been a sale with a warranty of goods 
 not in existence or not ascertained, and the warranty is 
 broken, the buyer may refuse to accept the goods, and this 
 after keeping them, if necessary, for a time reasonably 
 sufficient for trial or examination, provided he has not 
 exercised fiu'ther acts of ownership over them (s). This 
 appears at first sight to put a warranty on the same foot- 
 ing as a condition where the sale is not of specific goods : 
 but the true explanation is that given by Lord Abinger — 
 that the tender of an article not corresponding to the war- 
 ranty is not a performance of the contract. The warranty 
 retains its peculiar effect in this, that if the buyer chooses 
 to accej)t the goods, he has a distinct collateral right of 
 action on the warranty ; whereas if there is a condition 
 but not a warranty the party may indeed insist on the 
 condition, but if he accepts performance of the contract 
 without it he may have no claim to compensation. 
 Whether any term of a contract is in fact a condition or a 
 
 (<) Azemar v. Gasella, L. R. 2 C. Mondel v. Steel, 8 M. & W. So8, 
 
 P. 431, in Ex. Ch. 677. 871. 
 
 {h) Benjamin on Sale, 596 sqq. (;) Ileilbutt v. JlicJcson, L. E,. 7 
 
 (x) Ilei/irorthv. lI/!tchi)isoit,'L.'R. C. P. 438, 4ol ; Indian Contract 
 
 2 Q. B. 447, but as to the appliea- Act, s. 118. It is not the buyer's 
 
 tion of the rule in the particular duty to send the goods back : it is 
 
 case see Benjamin, pp. 896-8. enoug'h for him to give a clear 
 
 {>/) The reduction of the price notice that they are not accepted, 
 
 can be only the actual loss of value : and then it is the seller's business 
 
 any further damages must be the to fetch them : Griiiioldbij v. IFelh, 
 
 subject of a counter-claim (under L. R. 10 C. P. 391, 396. 
 tlie old practice a separate action) :
 
 MARINE INSURANCE. 489 
 
 warranty is a t|uc«tiou of coustructioii depeiidiug on the 
 language used and to some extent on the natui'e and cir- 
 cumstances of the transaction {a). 
 
 Similar questions have not unfrequently arisen on the 
 construction of charter-parties. Thus in Bchn v. BunienH [h) 
 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 the contract. 
 It was held that the description of her as in the port of 
 Amsterdam was a condition, and that by its non-fulfilment 
 the defendant was discharged from his obligation to load 
 a cargo. We pass on to the contracts above mentioned as 
 under exceptional rules. 
 
 A. 3Iarine Insurance. Marine 
 
 The law as to the contract of marine insurance is peculiar, ciutyof 
 Not only misrepresentation but concealment (c) of a material <iisclo- 
 fact, " though made without any fraudulent intention, 
 vitiates the policy " (f/), that is, makes it voidable at the 
 underwriter's election {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 include everything that might influence the under- 
 writer's judgment : the rule is " that all should be dis- 
 closed which would affect the judgment of a rational 
 under-wi'iter governing himself by the principles and cal- 
 
 («) An insti'uctive case of a showing that his own statement 
 
 simple afiBrmation amounting undei- that his ship was in the port of 
 
 special circumstances to a condition Amsterdam was not true. Cp. pp. 
 
 is Bamurman v. Wliitc, 10 C. B. N. 448-9, above. 
 
 S._844, 31 L. J. C. P. 28; Benja- (c) This is the usual word, but 
 
 min on Sale, 598 ; Anson, Law of noH-dlscIosure would be more accu- 
 
 Contract, 142. rate. 
 
 {h) 3 B. & S. 751, 32 L. J. Q. B. {d) lonidcs v. Pender, L. R. 9 Q. 
 
 204. Wasthe charter-party void or B. 531, 537 ; 2"Wms. Saund. 555-9. 
 
 only voidable 'r See O. W. Holmes, (c) See Morrison v. Universal 
 
 The Common Law, 329. I submit Marine Insurance Co. L. R. 8 Ex. 
 
 that it was void, but the plaintiff 197, 205. 
 Avould have been estopped from
 
 490 
 
 MISREPRESENTATION AND FRAUD. 
 
 Distiuc- 
 tions as 
 to life 
 insurance. 
 
 culations on whicli underwriters 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 underwriter 
 knows it already {(j) : and the obligation extends not only 
 to facts 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) . 
 
 These rules have in modern times at any rate been 
 uniformly treated both at law and in equity as determined 
 by the exceptional and speculative nature of this particular 
 contract, and not affording ground for any conclusions of 
 general law. That they do not apply to the contract of 
 life insurance is clear from the judgments in the Exchequer 
 Chamber in Wheclfon v. Hardisti/ (/), though a different 
 opinion formerly prevailed, and in this very case was not 
 contradicted in the Court below. Practically life policies 
 are almost always framed with some sort of express refer- 
 ence to the statements made by the assured as to the 
 health and circumstances of the life insured. Not unfre- 
 quently it is provided that the declaration of the assured 
 shall be the basis of the contract ; and if the declaration 
 thus made part of the contract is not confined to the 
 belief of the party, but is positive and unqualified, then 
 the contract is avoided by any part of the statement 
 being in fact untrue {k) , though not to the knowledge of 
 
 (/) Parsons on Insurance, adopted 
 per Cur. lonides v. Fender, L. R. 9 
 Q. B. at p. y;i9. What falls within 
 this description is a question of fact : 
 Striblcii V. Imperial Marine Insurance 
 Co. 1 Q. B.D. 507. And the policy 
 "will be vitiated by concealment of 
 a fact material to guide the under- 
 writer's judgment, though not ma- 
 terial to the risk insured against in 
 itself : Itivaz v. GcrKuxi (C. A.), G 
 Q. B. D. 222. 
 
 (y) Morrison v. Universal Marine 
 Insurance Co. L. E,. 8 Ex. 40. 
 
 (/») Froudfoot V. Mo)itcfiore, L. R. 
 
 2 Q. B. 511. But non-disclosure by 
 an agent of the assured, without 
 fraudulent intention, avoids the 
 policy only to the extent of the loss 
 or risk arising from the particular 
 facts so withheld: Strihley v. Im- 
 jicrial, Si-c. Co., snjjra. 
 
 (i) 8 E. & B. 232, in Ex. Ch. 
 285 ; 26 L. J. Q. B. 265, 27 ib. 241 ; 
 see especially those of Crowder, J. 
 and Martin and Bramwell, BB. 
 Lindcnaii v. Dcsboroiigh, 8 B. & C. 
 586, is virtually overruled by this. 
 
 (/i) It need not be shown that 
 the particular mis-statement was
 
 FIKK INSIKAXCE. 491 
 
 the assured (/), or by the concealment of any material 
 fact {)n). Where the insurance is on the party's own life, 
 however, any untrue answer given by himself to such 
 questions as are usually asked by insurance offices would 
 be almost necessarily kno^vn to be untrue, and therefore 
 fraudulent apart from any special conditions. Where a 
 third person insures, he on whose life the insurance is 
 made (usually called " the life ") cannot be treated as the 
 agent of the assured, and false statements made by him or 
 his referees cannot be pleaded as a fraud entitling the 
 insurer to avoid the contract {n). 
 
 The case of Affz/.-Gcii. v. lia// belongs to the class 
 here considered : the grant of a life annuity by the Com- 
 missioners for the Reduction of the 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, considering the 
 statutory powers and duties of the commissioners, " it was 
 an essential part of the contract itself that the representa- 
 tion should be true " (o). 
 
 B. Fire Insurance. Fii-e in- 
 
 This contract is for similar reasons treated in somewhat 
 the same way as that of marine insiu-ance (which it re- 
 material : Anderson v. Fitzgerald, 4 case of marine insurance was ex- 
 Hi. L. C. 484. Cp. Thomson v. pressly distinguished, and the 
 JFee/ns (Sc.) 9 App. Ca. 671. gTound of the decision in the Ex. 
 
 (l) Macdonald v. Law Union. In- Ch. was distinctly " that there was 
 
 siirance Co. L. E,. 9 Q. B. 328. no express stipulation in the policy 
 
 {in) London Assitrance v. ManscI, that made the accuracy of the state- 
 
 llCh. D. 363. Probably a material ments the basis of the contract:" 
 
 fact means for this piu-pose a fact per Blackbuni, J., L. R. 9 Q. B. 
 
 such that its concealment makes 333. In London Assurance y. 3Ia>isel, 
 
 the statement actually furnished, 11 Ch. D. 363, Lindcnau v. Bes- 
 
 though literally true, so misleading borough was relied on bj- counsel 
 
 as it stands as to be in effect un- and the Coiu-t; but Wheelton v. 
 
 true, Ilardisty was not cited. 
 
 (w) Wheelton v. Hardisty, supra. (o) 9'Ch. 397, 407, per Mellish, 
 
 The learned editor of Smith's Mer- L. J., expressly comparing the case 
 
 cantile Law (402, 8th ed.) seems to of a life policy where the represen- 
 
 understand the case as deciding this tations of the assured are made the 
 
 point only, and treats Lindcnau v. basis of the contract. 
 Desborough as still law ; but the
 
 492 MISREPRESENTATION AND FRAUD. 
 
 sembles in being a contract of indemnity) {p), though not 
 to the same extent. The description of the insured pre- 
 mises annexed to a fire policy amounts to a warranty (or 
 rather a condition) that at the date of the policy the pre- 
 mises correspond to the description, or at least have not 
 been altered so as to increase the risk ; and also that 
 during the time sj)ecified in the policy the assured will 
 not voluntarily make any alteration 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 poHcy 
 shall remain substantially true while the risk is running {q) . 
 There are dicta in the books which seem to extend the 
 analogy to marine insurance beyond this ; but it is con- 
 ceived that since Wheelton v. Hardidy (last page) they 
 cannot be relied on. 
 
 Descrip- The effect of a misdescription of the goods in a bill of 
 goods in lading, apart from any fraudulent intention, e.g. of avoiding 
 bill of payment of a higher rate of freight, is not precisely settled : 
 &c. °' 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 correct (r). 
 
 At common law the concealment of the true value of 
 goods was held to excuse a common carrier for anything 
 short of actual misfeasance, at all events if he had given 
 notice that he would accept valuable parcels only on 
 special terms (s) : but this matter is now regulated by 
 statute {t). 
 
 (p) Darren v. Tibbitts (C. A.) 5 Eq. 485. 
 Q. B. D. 560. (»•) Lebcau v. General Steam Xavi- 
 
 {q) Sillcm V. Thornton, 3 E. & B. gation Co. L. R. 8 C. P. 88. The 
 
 868, 23 L. J. Q. B. 302 ; whore it point decided is that the addition 
 
 was held acconliug-ly that the addi- of the words " Weight, value, and 
 
 tion of a third story to a house dc- contents unknown" by the ship- 
 
 ecribed as being of two stories was a owner is an entire waiver of tlie 
 
 materiiil alteration, and discharged description. 
 
 the insurer : and see further, as to («) Jiatson v. Donovan, 4 B. & 
 
 what airiouuts to material niisdc- iVld. 21. 
 scription, Forbes ^- Co.''s claim, I'J {t) Smith, Merc. Law, 279 sqq.
 
 SUIIETYSIIIP. 493 
 
 C. Suret I/ship. Surety- 
 
 It is laid down that a surety is released from his oblif^a- ^ "P" 
 tion by any misrepresentation, or concealment amounting sfutatiou 
 to misrepresentation, of a material fact on the part of the ^^^^^ .^ 
 creditor (?/). The language used in different cases is 
 hardly consistent : the later decisions establish however 
 that the rule is not parallel to that of marine insurance. 
 The contract of suretyship " is one in which tliere is no 
 universal obligation to make disclosure" (,r). The creditor 
 is not bound to volunteer information as to the general 
 credit of tlie debtor or anything else which is not part of 
 the transaction itself to which the suretyship relates : and 
 on this point there is no difference between law and 
 equity (//) . But the surety is entitled to know the real Surety is 
 nature of the transaction he guarantees and of the liability ^now real 
 he is undertaking : and he generally and naturally looks nature of 
 to the creditor for information on this point, although he tion!' " 
 usually is acting at the debtor's request and as his friend, 
 and so relies on him for collateral information as to general 
 credit and the like. In that case the creditor's description 
 of the transaction amounts to, or is at least evidence of, 
 a representation that there is nothing further that might 
 not naturally be expected to take place between the parties 
 to a transaction such as described. Whether a circumstance 
 not disclosed is such that by implication it is represented 
 not to exist depends on the nature of the transaction and 
 is generally a question of fact (~). Thus where the surety- 
 ship was for a cash credit opened with the principal debtor 
 by a bank, and the cash credit was in fact applied to pay 
 off an old debt to the bank, the House of Lords held that 
 the bank was not bound to disclose this, no actual agree- 
 
 («) Railton V. Matheirs, 10 CI. & Insurance Co. v. Lloi/d, 10 Ex. 523, 
 
 F. 934. 24 L. J. Ex. 14. 
 
 (.(•) Fry, J., Davies v. Londvn and (z) Lee v. Jones, 14 C. B. N. S. 
 
 Provincial Marine Insurance Co. 8 386, in Ex. Ch. 17 C. B. N. S. 482, 
 
 Ch. D. at p. 475. 503, 34 L. J. C. P. 131, 138, which 
 
 {y) Pledge v. Buss, Johns. 663; may betaken as a judicial commen- 
 
 TTi/tJics V. Lahouchcre, 3 De G. & J. tary on the rule given in Huuiilton 
 
 593, 009, approving North British v. Watson, 12 CI. fr F. 109.
 
 404 MISREPRESENTATION AND FRAUD. 
 
 ment being alleged or shown that the money should be so 
 applied, and the thing being one which the surety might 
 naturally expect to happen («). So the creditor is not 
 bound to tell the surety that the proposed guaranty is to 
 be substituted for a previous one given by another per- 
 son (b) . But the surety is not liable if there is a secret 
 agreement or arrangement which substantially varies the 
 nature of the transaction or of the liability to be under- 
 taken : as where the surety guarantees payment for goods 
 to be sold to the principal debtor, but the real bargain, 
 concealed from the surety, is that the debtor shall pay for 
 the goods a nominal price, exceeding the market price, and 
 the excess shall be applied in liquidation of an old debt (c) : 
 or where the loan to be guaranteed is obtained not in the 
 ordinary way, but by an advance of trust funds of which 
 the principal debtor himself is a trustee (r/). In Lee v. 
 Jones (e) there was a continuing guaranty of an agent's 
 liabilities in account with his employers. He was in fact 
 already indebted to them beyond the whole amount 
 guaranteed by the surety's agreement, which was so worded 
 as to cover existing as well as future liabilities. The surety 
 was not informed of this, and the recitals in the agreement, 
 though not positively false, were of a misleading and dis- 
 sembling character. The majority of the Court of Ex- 
 chequer Chamber held that there was evidence of "studied 
 effort to conceal the truth" amounting to fraud. And 
 on the whole it appears from this case and Railton v. 
 Matheics (/) that the concealment from the surety of pre- 
 vious defaults of the principal debtor, when there is a con- 
 tinuing guaranty of conduct or solvency, is in itself evidence 
 of fraud. Where a person has become a surety on the 
 
 {a) Hamilton V . Watson, 12 CI. & 333, decided however chiefly on the 
 
 F. 109 ; ace. Fledge v. Btiss, Johns. broader ground that there cannot 
 
 663. be a contract of suretyship in bla/ik, 
 
 (b) Xorth British Insurance Co. v. for no creditor was ever named or 
 Lloyd, 10 Ex. 523, 24 L. J. Ex. 14. specified to the surety. 
 
 (c) Fidroek v. Bishop, 3 B. & C. {e) 17 C. B. N. S. 482, 34 L. J. 
 605 ; I. C. A. 8. 143, ilhist. b. Ex. 131. 
 
 (d) Squire v. Whitlon, 1 H. L. C. ( /') 10 CI. & F. 934.
 
 SALES OF LAND. 495 
 
 faith of the creditor's representation that another will become 
 co-surety, he is not bound if that other person does not 
 join; and in equity it makes no difference that the guaranty 
 was under seal {g) . Where a guaranty was given to certain 
 judgment creditors in consideration of their postponing 
 a sale under an execution already issued against the 
 principal debtor, but in fact they did not stop the sale, 
 being unable to do so without the consent of other persons 
 interested, it was held that the guaranty was inopera- 
 tive {/)) ; but perhaps this case is best accounted for as one 
 of simple failiu'e of consideration ; for the consideration 
 for the guaranty was not merely the credit given to the 
 principal debtor, but the immediate stopping of the sale. 
 
 The authorities, taken as a whole, establish that as Beyond 
 between creditor and surety there is in point of law no ^^^[^1° 
 positive duty to give information as to the relations be- duty to 
 tween the creditor and the principal debtor, but the surety matron. *^^" 
 is discharged if there is actual misrepresentation, and that 
 silence may in a particular case be equivalent to an actual 
 representation, whether it is so being a question of fact (/) . 
 So far as these rules attach special duties to the creditor 
 they do not apply to a mere contract of indemnity (/»•). 
 
 D. Sales of Land. Sales of 
 
 A misdescription materially affecting the value, title, or contra t 
 character of the property sold will make the contract void- voidable 
 able at the purchaser's option, and this notwithstanding tcrial 
 special conditions of sale providing that errors of clescriiD- ^ii^de- 
 
 j-ini p • scription. 
 
 tion shall be matter for compensation only. Flight v. 
 
 {g) Rice V. Gordon, 11 Beav. 46o, 143: "Any guarantee which the 
 
 Erans v. Brcmridge. 2 K. & J. 174, creditor has obtained by means of 
 
 8 D. M. G. 100. The rule does not keeping silence as to a material 
 
 apply if the surety's remedies are circumstance is invalid," is pro- 
 
 not really diminished : Cooper v. bably not intended to go beyond 
 
 Erans, 4 Eq. 45, where the principal the English law. 
 debtor had not executed the bond, {k) Wag v. Hearn, 13 C. B. N. 
 
 but had executed a separate agree- S. 292 ; 33 L. J. C. P. 34 ; but the 
 
 raent under seal. point of that case is rather that 
 
 (A) Cooper V. Joel, 1 D. F. J. 240. there was no misrepresentation 
 
 (i) Cp. I. C. A. ss. 142-144, S. dans locum contractui.
 
 496 
 
 MTSREPRESENTATION AND FRAUD. 
 
 Specific 
 perform- 
 ance and 
 compensa- 
 tion. 
 
 Booth (/) is a leading case on this subject. The contract 
 was for the sale of leasehold property, and the lease im- 
 posed restrictions against carrying on several trades, of 
 which the particulars of sale named only a few : it was held 
 that the pui'chaser 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 been relied on in like cases by courts of 
 equity. 
 
 "Where the misdescrix^tion, although not proceeding from fraud, is in 
 a material and svibstantial point, so far afi'eeting the subject-matter of 
 the contract that it may reasonably be supposed that but for such mis- 
 description the iDurchaser might never 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 comj)ensation. 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." 
 
 So in FhUUps v. Caldclcugh {»i), where the contract was 
 for the sale of " a freehold residence " — which means free 
 of all incumbrances (;;?) — and it appeared that the property 
 was subject to restrictive covenants of some kind, the pur- 
 chaser 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. 
 
 (Questions of this kind arise chiefly in suits for specific 
 performance between vendors and piu'chasers of real estate, 
 when it is found that the actual tenure, quantity, or de- 
 scription 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 variance may be very different according 
 to these, and according to the amount and importance of 
 the discrepance between the description and the fact (;z). 
 A complete or nearly complete system of rules has been 
 gradually established by the Court of Chancery, 
 
 (/) 1 Bing. N. C. 370, 377. 
 {>„) L. K. 4 Q. B. 159, IGI. 
 (w) See authorities collected ou 
 
 the subject generally, Dart, V. & 
 P. 134 '.sqq., 644, 654, 1055, 1067 
 sqq.
 
 SALES OF LAND : COMPENSATION. 497 
 
 (i.) " If the failure is not substantial, equity will interfere " Where 
 and enforce the contract at the instance of either party ^^^ f^^i^. 
 
 with proj)or compensation (o). The purchaser, "if he gets stantial, 
 
 substantially that for which he bargains, must take a enforce- 
 
 compensation for a deficiency in the value" (j)). Here the ^^!|J.^ ^^^_ 
 
 contract is valid and binding on both parties, and the case pensation, 
 
 is analogous to a sale of specij&o goods with a collateral either 
 
 warranty. party. 
 
 (ii.) There is a second class of cases in which the con- "^cre 
 
 Vtiricinco 
 
 tract is voidable at the option of the purchaser, so that he sub- 
 cannot be forced to complete even with compensation at ^n^^*^ 
 the suit of the vendor, but may elect either to be released capable of 
 from his bargain or to perform it -with compensation. esTima-^^ 
 " Grenerally speaking, every purchaser has a right to take *^°'^' 
 what he can get, with compensation for what he cannot led may- 
 get " {q) , even where he is not bound to accept what the contract 
 other has to give him (r). or enforce 
 
 However a purchaser's conduct may amoimt to an affir- compen- 
 mation of the contract and so deprive him of the right to S'^tion. 
 rescind, but without affecting the right to compensation (s) ; 
 again, special conditions may exclude the right to insist on 
 compensation and leave only the right to rescind (f). 
 
 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 (?<) ; or an unqualified statement of a 
 
 (o) Halseij v. Grant, 13 Ves. 73, 77. Buller, 10 Ves. 292, 315. 
 
 (p) Dyer v. Kargravc, 10 Ves. (s) Hughes y. Jones, supra. 
 
 506, 508. [t) Cordinglci/ v. Checschorongh, 
 
 (q) migJies v. Jones, 3 D. F. J. 3 Giff. 496, 4 D. F. J. 379, where 
 
 307, 315; Leyland v. lUingivorth, the pui-chaser clahiiing specific per- 
 
 2 D. F. J. 248, 252. formance with compensation, and 
 
 (r) "If a person j^osscssed of a having rejected the vendor's offer 
 term for 100 years contracts to sell to annul the contract and repay the 
 the fee he camiot compel the pnr- purchaserliiscosts, was made toper- 
 chaser to take, but the purchaser form the contract unconditionally, 
 can compel him to convey the term." See further as to the effect of con- 
 Per Lord Eldon, Wood v. Griffith, ditions of this kind Maicson v. 
 1 Swanst. at p. 54 (though in this Fletcher, 6 Ch. 91. 
 case not with compensation, see [u) Hughes v. Jones, 3 D. F. J. 
 next i^ge) : and see Mortlock v. 307. 
 
 F. K K
 
 498 
 
 MISREPRESENTATION AND FRAUD. 
 
 Excep- 
 tions. 
 
 Purchaser 
 can re- 
 cover 
 compen- 
 sation 
 after com- 
 pletion. 
 
 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 cir- 
 cumstances (.r) ; or the description of the vendor's interest 
 in terms importing that it is free from incumbrances — such 
 as "immediate absolute reversion in fee simple" — where it 
 is in fact subject to undisclosed incumbrances [if). 
 
 The treatment of this class of cases in equity is analo- 
 gous to the rules applied at common law to the sale of 
 goods not specifically ascertained by sample or with a 
 warranty : see p. 488, above. 
 
 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 has contracted to give the purchaser 
 something w^hich 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 woidd not convey, the Court refused to compel 
 the husband to convey his own interest alone for an abated 
 price (s). 
 
 Also the Court will not order vendors who sell as trustees 
 to perform their contract with compensation, on account of 
 the prejudice to the cestui que trust which might ensue {a). 
 
 It is now settled (after many conflicting decisions and 
 dicta) that a purchaser otherwise entitled to compensation 
 can recover it after he has taken a conveyance and paid 
 the purchase-money in full {h). 
 
 {x) Dimmock v. Ealldt, 2 Ch. 21. 
 
 (V) Torrance v. Bolton, 8 Ch. 118. 
 Of the peculiar character of the 
 non- disclosure in that case pre- 
 sently. C^i. Phillips V. Caldclcifffh, 
 L. R. 4 Q. B. 159, p. 510, above. 
 As to the proper mode of assessing 
 compensation in a case of mis- 
 statement of profits, sec Foivell v. 
 Elliot, 10 Ch. 424. 
 
 {z) Castle V. Wilkinson, 5 Ch, 534. 
 
 In a late case where the husband 
 had the reversion in fee after a life 
 interest to the w\ie, specific per- 
 formance with compensation was 
 granted : Barker v. Cox, 4 Ch. D. 
 464 ; sed qu. 
 
 {a) White v. Citddon, 8 CI. & F. 
 76G. 
 
 {b) BalmcrY. Johnson (C. A.), 13 
 Q. B. D. 351. See the fonncr cases 
 there discussed.
 
 SALES OF LAND : WHERE NO COMPENSATION. 499 
 
 (iii.) But lastly the variance may be so material (either Where 
 in quantity, or as amounting to a variance in hind) as to jiorca-° 
 avoid the sale altogether and to prevent not merely the I'^V^c of 
 general jurisdiction of the Court as to compensation, but tion, 
 even special provisions for that purpose, from having any optip^i to 
 application. " If a man sells freehold land, and it turns simply. 
 out to be copyhold, that is not a case for compensation (r) ; 
 so if it tui-ns 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 somebody 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 " [d). 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 (r). This class of 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 compulsory performance with compensation would 
 here work the same injustice to the one party that com- 
 pulsory performance without compensation 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 
 one-half of what it had been supposed to be (/). But in 
 
 [c) And conversely, a man -who a lease is prima facie a contract to 
 
 buys an estate as copyhold is not show title to an original lease : 
 
 bound to accept it if it is in fact CambcnccH and S. Loitdon Building 
 
 freehold. For "the motives and Society y. Solloway, 13 Ch. D. 754. 
 
 fancies of mankind are infinite ; {d) Earl of Durham v. Lcyard, 
 
 and it is unnecessary for a man 34 Beav. 611. 
 
 who has contracted to purchase {c) An/old v. Arnold (C. A.), 14 
 
 one thing to explain why he re- Ch. D. 270. 
 
 fuses to accept another :" ^//te V. (/)The price asked had been 
 C'u.r, 16 Beav. 23. As to lease- fixed by reference to the rental 
 holds, it is a settled though per- alone. Qu. how the case would 
 haps not a reasonable rule that a have stood could a price proper- 
 contract to sell property held under tional to the area have been arrived 
 
 kk2
 
 500 
 
 MISREPRESENTATION AND FRAUD. 
 
 "Where it 
 is in 
 vendor's 
 power to 
 make 
 good his 
 represen- 
 tations, 
 quaere. 
 
 a later case where the vendors were found to be entitled 
 only to an undivided moiety of the property which they 
 had professed to sell as an entii-ety, the Court found no 
 difficulty in ordering specific performance with an abate- 
 ment of half the price at the suit of the purchaser, as no 
 injustice would be done to the vendors, who woidd be fully 
 paid for all they really had to sell {(j) . The real question 
 is whether the deficiency is such as to be fairly capable of 
 a money valuation (//). It seems that where it is in the 
 vendor's power to make good the description of the pro- 
 perty, but not by way of money compensation, it may be 
 in his option to perform the contract with the non-pecu- 
 niary compensation applicable to the circumstances or to 
 treat it as rescinded. In Bankcomh v. Bechcith {i) a lot of 
 building land (part of a larger estate intended to be sold 
 together) was sold under restrictive conditions as to build- 
 ing, 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 
 
 at. And see Siraisland v. Bearsleij, 
 27 Beav. 430 (where it is left doubt- 
 ful whether the purchaser could or 
 could not have enforced the con- 
 tract with compensation). Cp. D. 
 18. 1. de cont. empt. 22-24, enun- 
 ciating precisely the same principle 
 as that applied by our courts of 
 equity. Hanc legem venditionis : 
 Si quid sacri vel religiosi est, eius 
 venit nihil, supervacuam non esse, 
 sod ad modica loca pertinere : ce- 
 terum si omne religiosum, vel 
 sacnun, vel publicum venierit, 
 nidlam esse emptionem ; and see 
 eod. tit. 18. 40j»r. In Whittemore 
 V. Whittemorp, 8 Eq. 603, a case of 
 material deficiency in quantity, it 
 was held that a condition of sale 
 pi'oviding generally tliat errors of 
 description sliould be only matter 
 of compensation did apply, but 
 another excluding compensation 
 for errors in quantity did not ; so 
 that on the whole the piu-chaser 
 
 could not rescind, but was entitled 
 to compensation. 
 
 {g) Bailey v. Fiper, 18 Eq. 683 ; 
 Horrocks v. Righj, 9 Ch. D. ISO, 
 where the moiety was so incum- 
 bered that the vendor in the result 
 got nothing but an indemnity : 
 Whcatlcy v. Sladc, 4 Sim. 126, is 
 practically overruled by these cases. 
 Similarly as to leasehold, Burrow 
 V. ScammcU, 19 Ch. D. 175, where 
 apparently Bailey v. Fi2)cr was 
 overlooked. Maw v. Topham, 19 
 Beav. 576, is distinguishable, as 
 there the purchaser knew or ought 
 to have known that a good title 
 could not be made to the whole. 
 
 {h) See Dyer v. Hargrave, 10 
 Ves. at p. 507 ; and on the distinc- 
 tion of the different classes of cases 
 generally, per Amphlctt, B. Fhil- 
 lips V. Millrr, L. R. 10 C. P. 427-8. 
 
 (0 8 Eq. 100 (1869, before Lord 
 Romilly, M. R.).
 
 SALES OF LAND : WHERE NO COMPENSATION. 
 
 501 
 
 to like restrictions. One small adjacent plot had in fact 
 been reserved Ly 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 hold that ho was 
 entitled at his option to a decree for specific performance, 
 on the terms of entering into a restrictive covenant in- 
 cluding the reserved plot, or to have his bill dismissed (k) . 
 It is difficult to see why the option should not have been 
 with the pirrchaser. The vendor had the means of per- 
 forming what must be taken to have really been his con- 
 tract (for a man cannot be heard to say that the natural 
 construction and meaning of the contract he proposes, 
 whether by a verbal description of the subject-matter, or 
 by words helped out by maps or other symbols, is not the 
 meaning he intended : accipiuntur fortius contra pro- 
 ferentem (l) : and it might have been a not unsound or 
 unjust conclusion to hold that he was simply bound to 
 perform it. 
 
 This third class of cases may be compared (though not 
 exactly) to a sale of goods subject to a condition or 
 " warranty in the natm'e of a condition," so that the sale 
 is " to be null if the affirmation is incorrect " {ni). 
 
 A purchaser who in a case falling under either of the Deposit, 
 last two heads exercises his option to rescind the contract coveralble 
 may sue in the Chancery Division to have it set aside, and ^ equity 
 recover back in the same action any deposit and expenses at law. 
 abeady paid under the contract (n). 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 circumstances to afford ground for 
 
 (/i) The case comes veiy near cont. empt. 21. 
 Bloomer v. Spittle, 13 Eq. 427, and (;h) BannermaiiY. White, 10 C. B. 
 
 others of that class, explained pp. N. S. 844, 31 L. J. C. P. 28. 
 430, 477, above. (») E.g. Stanton v. Tattersall, 1 
 
 {I) 2 Sm. L. C. 525 (7th ed.) ; D. Sm. & G. 529, Torrance v. Bolton, 
 
 2. 14. de pactis, 39 ; D. 18. 1. de 8 Ch, 118.
 
 i02 
 
 MISREPRESENTATION AND FRAUD. 
 
 General 
 duty of 
 vendor to 
 give cor- 
 rect de- 
 scription. 
 
 Conceal- 
 ment in 
 particu- 
 lars not 
 excused 
 by correct 
 statement 
 in con- 
 ditions 
 only read 
 out at the 
 sale : 
 Torrance 
 V. Bolton. 
 
 equitable jurisdiction, such as securities having been given 
 of which the specific restitution is claimed (o) . 
 
 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. And, notwithstanding the current 
 maxim about simplex commcndatio, language of general 
 commendation — such as a statement that the person in 
 possession is a most desirable tenant — is deemed to include 
 the assertion that the vendor does not know of any fact 
 inconsistent with it, 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 pm'chaser ( p) . If the vendor does not 
 intend to offer for sale an unqualified estate, the qualifica- 
 tions should appear on the face of the particulars ('2) . In 
 Tormnce v. Bolton (r) an estate was offered for sale as an 
 immediate reversion in fee simple. At the auction condi- 
 tions 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 plaintifE in the suit had bid and 
 become the purchaser at the sale, but without having, as 
 he alleged, distinctly heard the conditions or understood 
 their effect. The Court held that the particulars were 
 misleading ; that the mere reading out of the conditions of 
 sale was not enough to remove 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. 
 
 A misleading description may be treated as a misrepre- 
 sentation even if it is in terms accurate : for example. 
 
 (0) Aberaman Ironivorks Co. v. 
 Wiclccns, 4 Ch. 101, where the con- 
 tract having been rescinded by con- 
 sent before the suit was held not to 
 deprive the Court of jiu-isdiction. 
 
 {p) Siniih V. Land and House 
 Property Corporation, C. A., 28 Ch. 
 D. 7. 
 
 {q) Hughes v. Jones, 3 D. F. J. 
 307, 314. 
 
 (r) 8 Ch. 118.
 
 SALES OF LAND : DUTIES OF VENUOll AND PURCHASER. 503 
 
 wliere 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 purchaser, 
 and the tenant holds under an unexpired lease for years 
 which is not disclosed (/). 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 {ii). 
 
 All this proceeds on the supposition that the vendor's Duty of 
 property and title are best known to himself, as almost fn spcdal 
 always is the case. But the position of the parties may cases. 
 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 with it, and in that case a material mis- 
 representation by the piu-chaser makes the contract, and 
 even an executed conveyance pursuant to it, voidable at 
 the vendor's option {.t) . So it is where the purchaser has 
 done acts unkno"\\Ti 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 tres- 
 passed upon it and raised coal without the vendor's know- 
 ledge : for here the proposed purchase involves a buying 
 up of rights against the pui'chaser of which the owner is 
 not aware (y/) . 
 
 On a sale imder the direction of the Court a person 
 offering to buy must either abstain from laying any infor- 
 mation before the Court in order to obtain its approval, or 
 he must lay before it all the information he possesses, and 
 which it is material that the Court should have, to enable 
 it to form a judgment on the subject under its considera- 
 tion. It is no answer to say that the information given to 
 
 (s) Lnchlan v. Reynolds, Kay 52. {x) Kay garth v. Wearing, 12 Eq. 
 
 \i) Caballero v. Henty, 9 Ch. 447. 320. 
 
 (m) Jones V. liimmer, 14 Ch. D. (y) PhiUijjs v. Homfray, 6 Cb. 
 
 588. 770, 779.
 
 504 MISREPRESENTATION AND FRAUD. 
 
 the Coiirt was true as far as it went, and that, if the Court 
 desired further information or further materials, it should 
 have asked for them. The Court is neither buyer nor 
 seller, and it is the duty of every one laying materials 
 before it for the purpose of obtaining its approval of any 
 transaction to take care that the materials furnished to 
 guide the Court shall not be *' incomplete or misleading." 
 Accordingly the sale of a life interest under the direction 
 of the Court has been set aside after the lapse of several 
 years upon proof that the terms were sanctioned on the 
 strength of adverse medical opinions communicated to the 
 Court by the buyer, while less unfavourable opinions 
 known to the buyer were withheld {z) . 
 Effect of Vendors of land may, and constantly do in practice, sell 
 conditions under conditions requiring the purchaser to assume par- 
 as to title, ticular states of fact and title. But such conditions must 
 not be misleading as to any matter within the vendor's 
 knowledge (r/). " 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 {b). 
 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 natm-e of that which is to form the 
 root of title "(c). 
 Non-dis- The House of Lords decided in Wihfc v. Gibson (d) that 
 deTc^rof ^^® vendor's silence as to a right of way over the pro- 
 
 (z) Bosu-eU V. Coalcs (C. A.), 27 contract, quccrc, per Jessel, M. R. 
 
 Ch. D. 424 ; per Cur. at p. 454. at p. 142. 
 
 {a) Bcyu-ood v. MalMieu, 25 Ch. (c) Marsh and Earl Granville (C. 
 
 357 (definite adverssc claims known A.), 24 Ch. D. 11, 22, where the 
 
 to a vendor must be disclosed even purchaser was held not bound to 
 
 if he thinks them unfounded). accejit as the commencement of 
 
 {h) Jlroad v. Mnn/oii, 12 Ch. D. title a voluntary deed not stated in 
 
 131 (C. A.), per Cotton, L. J. at p. the contract to be such. 
 
 149 : whether this would be suffi- {d) 1 H. L. C. COS. 
 ciont ground for rescinding the
 
 SALES or LAND : DUTIES OF VENDOR AND PURCHASER. 505 
 
 pcrty, of the existence of which he was not shown to be title not 
 aware, was no ground for setting aside the contract. This k^jo^^y^o 
 reversed the decision of Knight Bruce, V.-C. (e), who held vendor: 
 that the silence of the particulars taken together with the Gibson.' 
 condition of tlie 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 (/). The Lish ease relied on by the Lords as a 
 direct authority may bo distinguished on the ground 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 {(/). 
 
 The decision in Wilde v. Gibson was much influenced by 
 the purchaser'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 clii'ect personal fraud. Even 
 so the result in modern practice would only be that the 
 plaintiff would have to pay the costs occasioned by the 
 imfounded charges ; he would not lose any relief for which 
 he otherwise showed sufficient grounds (A). And on exa- 
 mining the pleadings it is difficult to find any imputation 
 sufiicient to justify the grave rebukes expressed in the 
 judgments (i). Altogether the case strongly illustrates the 
 confusion and inconvenience which follow from the use 
 of the word fraud with a latitude inconsistent with its 
 
 (e) S. C. mm. Gihsoa v. B'Este, (A) HiUiayd v. Eiffe, L. R. 7 H. 
 
 2 Y. & C. 542. L. 39 ; see next chapter. 
 
 (/) Sugd. Law of Property, 614, (i) The bill in Gibson v. B' Este, 
 
 637, &c. which is to be found in the printed 
 
 {g) Indeed the Court seems to cases of 184S, has the words 
 
 have thought it ivas true, notwith- "carefully concealed " in one pas- 
 
 standing the adverse result of an sage : " fraudulently concealed " 
 
 action. Legge y. Crokcr, 1 Ball & in another may mean, of course, 
 
 B. 506, Sugd. oj). cit. 657. fraudulently in a technical sense.
 
 506 MISREPRESENTATION AND FRAUD. 
 
 ordinary and natural meaning. It was also said by Lord 
 Campbell that a court of equity will not set aside an 
 executed conveyance on the ground of misrepresentation 
 or concealment, but only for actual fraud {k) : but this 
 dictum has not been followed. Where 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 purchaser's part 
 which, although not such as to deprive him of the right of 
 rescinding the contract before completion, would preclude 
 him from having the sale set aside after conveyance {?)}). 
 General 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 acquainted with the property to give substantially 
 correct information, at all events to the extent of his own 
 actual knowledge (w), of all facts material to the descrip- 
 tion 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 The general rule seems not applicable as between lessor 
 pation ^" ^^^ lessee, where the letting is for an occupation by the 
 leases. 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 look at the premises for himself, and 
 therefore is not bound to tell him if they are in bad repair 
 or even ruinous (p). 
 
 (/;) 1 H. L. C. G32. omitted to examine the originals. 
 
 (0 Hart V. Swaine, 7 Ch. D. 42 ; {//) See Jolifc v. Jia/cer, 11 Q. B. 
 
 aXno in Jlai/ffardi v. IVearvig, 12 Eq. D. 255, but that case is of little 
 
 320, an executed conveyance was authority, if any, on the question 
 
 set aside on simple misreprcsenta- of contract, see per Smith, J. in 
 
 tion. Tftliiicr v. Jolinson, 12 Q. B. D. at 
 
 {m) jiPCuUoch V. Gregory, 1 K. & p. 37, explaining his own part in 
 
 J. 28G, where a will was mis-stated Joliffev. Baker. 
 in the abstract so as to conceal a {o) 3 App. Ca. 12G7. 
 
 defect of title, but the purchaser {p) Keates v. Jiarl Cadogan, 10 C.
 
 FAMILY SETTLEMENTS : PARTNERSHirS AND COMPANIES. 507 
 
 E. FamUy Settlements. Family 
 
 In the negotiations for family settlements and com- Cents'- 
 promises it is the duty of the parties and their professional ^luty of 
 agents not only to abstain from misrepresentations, but to closure, 
 communicate 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 setting aside the transaction. 
 *' Full and complete communication of all material circum- 
 stances is what the Court must insist on " {q). " Without 
 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 withheld (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). 
 
 F. Partnershi2), Contracts to tcike Shares in Companies, and Partner- 
 
 Contrads of Promoters. J'P- ^ 
 
 mi ' (« 1 • • 1 1 •! 1 Contracts 
 
 The contract of partnership is always described as one to take 
 
 in which the utmost good faith is required. So far as this '^^^^■^^• 
 principle applies to the relations of partners after the 
 partnership 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 rules 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 partner- 
 ship, or rather its full and apparent constitution. For 
 
 B. 591, 20 L. J. C. P. 76. The chance of there being sometliiug in 
 
 general rule does apply as to mat- it. Probably the test is (as in the 
 
 ters of title : Mosti/ny.Wci,t Mosti/u case of marine insurance, p. 489, 
 
 Coal, ^-c. Co., 1 C. P. D. 145. above) whether the judgment of a 
 
 {q) Gordon v. Gordon, 3 Sw. 400, reasonable man would be affected. 
 
 473. Cp. Hcijicood V. MaUaUeu, 25 Ch. 
 
 {r) Ih. 477. How far does this D. 357. 
 
 go ? It can hardly be a duty to («) Ih.; Fane v. Fane, 20 Eq. 698. 
 communicate mere gossip on the
 
 508 
 
 MISREPRESENTATIOX AND FRAUD. 
 
 Prospec- 
 tus must 
 be both 
 positively 
 and nega- 
 tively- 
 correct. 
 
 example, an intending partner must not make a private 
 profit out of a dealing undertaken by him on behalf of 
 the future firm (f). There is little or no direct authority 
 to show that a person inviting another to enter into part- 
 nership 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 existence 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 down as binding 
 on the promoters of companies. These are expressed 
 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 theu" money, 
 and with slight means at hand, if any, of verifying the 
 statements made to them. 
 
 "The public," it is said, "who are invited by a prospectus 
 to join in any new adventure, ought to have the same 
 opportunity of judging of everything which has a material 
 bearing on its true character as the promoters themselves 
 possess " (k) : 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 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" (.r). Therefore if un- 
 true or misleading representations are made as to the 
 
 (i) Lindley, 1. 579; Fmvcctt v. 
 WhitchoHsc, 1 R. & M. 132. Yet 
 the duty is incident, not precedent, 
 to the contract of partnership : for 
 if there were not a complete con- 
 tract of partnership there would be 
 no duty at all. 
 
 («) Lord Chelmsford in Central 
 111/. Co. of Venezuela Y. Kiseh, L. R. 
 2'H. L. 99, 113. 
 
 (;r) l\.hx(ieva\ej ,Y .-Q. Neic BrwiS' 
 tciek, ^r. Co. V. Mi((}geridge, 1 Dr. 
 & Sm. 363, 381, adojjted by Lord 
 Chelmsford, I. e.
 
 COMPANIES : CONTRACTS OF PROMOTERS. 509 
 
 character and value of tlie property to be acquired by a 
 company for the purposes of its operations (y), the privileges 
 and position secured to it, the amount of capital (::), or 
 the amount of shares already subscribed for (a), a person 
 who has agreed to take shares on the faith of such repre- 
 sentations, 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 contributory. For full information on this 
 subject the reader is referred to Lord Justice Lin.dley's 
 treatise {h) . 
 
 There is likewise a fiduciary relation between a promoter Duty of 
 and the company in its corporate capacity, which imposes Jo com-^^' 
 on the promoter the duty of full and fair disclosure in any pany. 
 transaction with the company, or even with persons pro- 
 visionally representing the inchoate company before it is 
 actually formed (c). Promoters who form a company for 
 the purpose of buying their property are not entitled to 
 deal with that company as a stranger (c/). They must 
 provide it with " a board of directors who can and do 
 exercise an independent and intelligent judgment on the 
 transaction" (e). 
 
 The Companies Act, 1867, s. 38, makes it the duty of 
 promoters of a company to disclose in the prospectus any 
 previous contract entered into by the company or the 
 
 {y) Reese River Silver Mining Co. collected. Mere commnnication to 
 
 V. Smith, L. R. 4 H. L. 64, affg. the company is not a sufficient re- 
 
 s. c. noni. Smith's ca. 2 Ch. 604. jjudiation. The shareholder must 
 
 (z) Central Ry. Co. of Venezuela v. do something to alter his status as 
 
 Kisch, supra. a member : per Lindley, L. J. 
 
 («) Wrifflifs ca. 7 Ch. 55; cp. Scottish Petroleum Co. 2^ Ch.. J). 'i^Zb. 
 Moore cj- Be la Torre's ca. 18 Eq. (r) New Sombrero Phosphate Co. 
 
 661. V. Erlanger, 5 Ch. D. 73, per James, 
 
 {l<) Lindley on Partnershij), 2. L. J. at p. 118 ; affd. in H. L. ^/o«i. 
 
 935, 1424. And sec American Law Erlanger \. Nctv Sombrero Phosphate 
 
 Review, N. S. vol. 1, p. 177 (March, Co. 3 App. Ca. 1218; Pagnall v. 
 
 1880), "Effect of Fraiid on Sub- Carlton, 6 Ch. D. 371. 
 scriptions to Stock," by Seymour {d) Erlanger v. Keiv Sombrero 
 
 D. Thompson, where English and Phosphate Co. 3 App. Ca. at p. 1268. 
 American authorities are veryfully [e) Pb. at pp. 1229, 1236, 1255.
 
 510 MISREPRESENTATION AND FRAUD. 
 
 promoters ; in default of which the prospectus is deemed 
 " fraudulent on the part of the promoters, directors, and 
 officers of the company knowingly issuing the same " as 
 regards any one taking shares on the faith of the prospectus 
 and without notice of the contract. This creates no duty 
 on the part of any one who was not a promoter at the 
 date of the contract (,/), nor towards any one but share- 
 holders {g) : and it seems the right it gives the shareholder 
 is to bring an action of deceit against the delinquent per- 
 sonally, and not to be released from his contract (/). The 
 contracts mentioned in this very loosely drawn enactment 
 include not only contracts binding or intended to bind the 
 company itself, but all contracts involving dealings with 
 the company's shares or assets which, if known to a prudent 
 man, would be material to determine his judgment as to 
 taking shares (It) . It is not quite clear how far the obliga- 
 tions of promoters to shareholders, under this clause or 
 otherwise, can be waived by express notice in the pros- 
 pectus. Special terms intended to have that effect, and 
 presumably settled under good advice, are however in 
 frequent use. 
 
 Contract Thus much of the classes of contracts to which special 
 mar y. ^^^^^^ ^^ ^j^^g j^^^^^j ^^^^ 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 in- 
 sanity (/r) , is no answer to an action on the promise. If 
 promises to marry are to give a right of action, one would 
 think the contract should be treated as one requiiing the 
 utmost good faith : but such are the decisions. 
 
 (/) Cover's ca. 20 Eq. Ill, 1 Ch. (C. A.), 5 C. P. D. 455 (vyith con- 
 
 D. 182. sidcrable differences of opinion). 
 
 (a) Cornell V. Hay, L. R. 8 C. P. (() Bcacho/ v. Brown, E. B. & E. 
 
 328. 79G, 29 L. J. Q. B. 105. 
 
 (A) Tivi/cross v. Grant (0. A.), 2 (/.•) Baker v. Cartwr'ujht, 10 C. B. 
 
 ~ 409, Snllivan v. Mltcalfe N. S. 121. 
 
 (A) Twi, 
 C. P. D.
 
 FRAUD. 
 
 ill 
 
 Marriage itself is said not to be avoided even by actual 
 fraud (/), but the reasons for this are obviously of a different 
 kind : nor is a marriage settlement rendered voidable by 
 the wife's non-disclosm-e of previous misconduct {/)/). 
 
 Reasons have already been given for abstaining from the 
 attempt to state a more general rule for the treatment of 
 contracts entered into by one party in consequence of 
 representations made by the other which were not true in 
 fact, but not known to be untrue by the person making 
 them. We proceed to deal with the question of fraudulent 
 misrepresentation, deceit, or fraud in the strict and only 
 proper sense. 
 
 Part 2. — Fraud. 
 
 Fraud generally includes misrepresentation. Its specific Fraud 
 mark is the presence of a dishonest intention on the part ^fc^udes^ 
 of him by whom the representation is made. In this case misrepre- 
 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 intention of thereby procuring 
 consent to the contract, and without a belief in its truth. 
 
 There are some instances of fraud, however, in which But not 
 one can hardly say there is a misrepresentation except by as^hen a 
 a forced use of language. It is fraudulent to enter into a contract is 
 contract with the design of using it as an instrument of a col- 
 wrong or deceit against the other party. Thus a separation ^'^^^^^^L i 
 deed is fraudulent if the wife's real object in consenting or orunlaw- 
 procuring the husband's consent to it is to be the better posf,^or 
 able to renew a former illicit intercourse which has been without 
 concealed from him. " None shall be permitted to take of pcr- 
 advantage of a deed which they have fraudulently induced ^o"^^o 
 
 (^) Swift Y. Kelly, SKnapp, P. C. (m) Evans v. Carrlngton, 2 D. F. 
 
 257, 293 : but Lord Brougham's J. 481. It is there said however 
 
 language is much too wide ; as to that non-disclosirre of adultery 
 
 the point actually decided see p. would be enough to avoid a sepa- 
 
 519 below. ration deed.
 
 512 MISREPRESENTATTOM AND FRAUD. 
 
 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 " (n). So it is fraud to obtain a contract 
 for the transfer of property or possession by a representa- 
 tion that the property will be used for some lawful purpose, 
 when the real intention is to use it for an unlawful pur- 
 pose (o). It has been said that it is not fraud to make a 
 contract without any intention of performing it, because 
 peradventure 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 tech- 
 nical and now happily impossible manner (p). 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 {q). Here it is obvious that the party would not 
 enter into the contract if he knew of the fraudulent inten- 
 tion : but the fraud is not so much in the concealment as 
 in the character of the intention itself. It would be ridi- 
 culous to speak of a duty of disclosure in such cases. Still 
 there is ignorance on the one hand and wrongful contri- 
 vance on the other, such as to bring these cases within the 
 more general description of fraud given in Ch. VIII. 
 p. 391, above. 
 Right of The party defrauded is entitled, and was formerly en- 
 fraudulent titled at law as well as in equity, to rescind the contract, 
 contract, a Praud in all com-ts and at all stages of the transaction 
 has been held to vitiate all to which it attaches" {>'). 
 
 («) IJrans v. Carrlngton, 2 D. F. 216, 15 L. J. Ex. 113 ; White v. 
 
 J, 481, 501 ; cp. Evans v. Edmonds, Garden, 10 C. B. 919, 923, 20 L. J. 
 
 13 C. B. 777, where, however, ex- C. P. 166 ; Clough v. L. ^- N. TF. 
 
 press representation was averred. lii/. Co. L. R. 7 Ex. 26 ; Ex parte 
 
 (o) Feret v. JUU, 15 C. B. 207, Whittalcrr, 10 Ch. 446, 449, per 
 
 23 L. J. C. P. 185, concedes this, MeUish, L. J.; I>o)iaIdsonv.Farwell, 
 
 deciding- only that possession ac- 3 Otto (93 U. S.) 631. But it is 
 
 tually given under the contract not siich a " false representation or 
 
 cannot be treated as a mere trespass other fraud " as to constitute a 
 
 by the party defrauded. misdemeanor under s. 11, sub-s. 19 
 
 (p) Ileminffwai/v. Hamilton, iM.. of the Debtoi-s Act, 1869; Ex 
 
 & W. 115. parte Brett, 1 Ch. D. 151. 
 
 {q) Ferguson v. Carrington, 9 B. & (r) Per Wilde, B. Udell v. At her- 
 
 C. 59 ; Load v. Gree?i, 15 M. & W. ton, 7 H. & N. at p. 181.
 
 FRAUD. 513 
 
 We shall now consider the elements of fraud separately : Elements 
 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 posi- 
 tive assertion or suggestion of that which is false, or in the 
 active concealment of something material 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. 
 
 There may be a false statement of specific facts : this Examples 
 seldom occurs in a perfectly simple form. Canham v. lent repre- 
 Barry {s) is a good example. There the contract was for sentation. 
 the sale of a leasehold. The vendor was under covenant 
 with his lessor not to assign without licence, and had 
 ascertained that such licence would not be refused if he 
 could find an eligible tenant. The agreement was 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 landlords, which was contrary to the fact. This was 
 held to be a fraudulent 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 
 partner in a business by false accounts of its position and 
 profits (;'). 
 
 Or the representation may be of a general state of 
 things : thus it is fraud to induce a person to enter into a 
 particular arrangement by an incorrect and unwarrantable 
 assertion that such is the usual mode of conducting the 
 kind of business in hand {u) . How far it must be a repre- 
 sentation of existing facts will be specially considered. 
 
 («) 15 C. B. 597 ; 24 L. J. C. P. held voidable for misrepresentation 
 
 100. in the prospectus are of the same 
 
 {t) E. g. Rawlins v. Wickham, 3 kind. 
 
 De G. & J. 304. The cases where [u) Eeynell v. Spnje, 1 D. M. G. 
 
 contracts to take shares have been G80. 
 
 P. L L
 
 514 
 
 MISREPRESENTATION AND FRAUD. 
 
 ment. 
 
 What is " Active concealment " seems to be the appropriate de- 
 
 conceal-^^ scription 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 contri- 
 vances to hide the defects of goods sold (x) : or making a 
 statement true in terms as far as it goes, but keeping 
 silence as to other things which if disclosed would alter the 
 whole effect of the statement, so that what is in fact told 
 is a half truth equivalent to a falsehood {y) : or allowing 
 the other party to proceed on an erroneous belief to which 
 one's own acts have contributed (s). It is sufficient if it 
 appears 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 {a) . Thus it is 
 where one party has made an innocent misrepresentation, 
 but on discovering the error does nothing to undeceive the 
 other {b). As to this last point it is to be observed that in 
 ordinary cases it is not the duty of one party to a contract 
 to correct a misapprehension of the other to which he has 
 done nothing to contribute, though he may be aware of it. 
 " Passive acquiescence in a self-deception " (c) cannot be 
 put on the same footing as an active encouragement of it 
 which has the natui'e of " aggressive deceit " {d). Even if 
 the one party asks the other a question as to some colla- 
 teral matter on which he is not bound to give information, 
 mere silence on the other's part is not equivalent to a re- 
 Laidlaw v. presentation. This was decided by the Supreme Court of 
 the United States in Laid/aw v. Organ (e) . The contract 
 there in question was a sale of tobacco. On the morning 
 
 As to 
 mere 
 silence : 
 Smith i\ 
 Huffhes. 
 
 Orsfan. 
 
 (x) See Benjamin on Sale, 4-19. 
 
 (y) l\'ek V. Gnniei/, L. R. 6 H. L. 
 392, 403. 
 
 (z) mil V. Gray, 1 Stark. 434, as 
 explained in Kcates v. Earl CadogcDi, 
 10 C. B. 591, 600; 20 L. J. C. P. 
 76 ; qu. if the explanation does not 
 really ovciTule the particular deci- 
 Hion, per Lord Cliohnsford, L. R. 6 
 H. L. 391 ; Benjamin, 451-2. 
 
 {a) Per Blackburn, J. Lee\. Jones, 
 
 17 C. B. N. S. at p. 507 ; 34 L. J. 
 C. P. at p. 140. 
 
 {b) Reynell v. ^prxje, 1 D. M. Gr. 
 at p. 709. 
 
 (r) Hmith v. HugMs, L. R. 6 Q. 
 B. 597, 603. 
 
 {d) Kcates v. Earl Cadogan, supra. 
 
 [e) 2 Wheat. 178. The case is 
 almost exactly parallel to Smith v. 
 Hughes (last note but one), but was 
 not there cited.
 
 FRAUD : KNOWLEDGE OF UNTRTTII. 515 
 
 of the sale the 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 buyers was not a fraudulent conceal- 
 ment. And, notwithstanding that the decision has been 
 criticized (/), it seems right ; for silence in such a case is 
 of itself equivalent at most to saying, *' It is not our busi- 
 ness to tell you " ; which indeed, as a part of the general 
 law, the other party may be presumed to know already. 
 The real question in such a case is whether there was 
 nothing beyond mere silence. If there is evidence of any 
 departure from the attitude of passive acquiescence, to 
 that extent there is evidence of fraud ; and perhaps it is 
 not too much to say that the Court should be astute to 
 find it. 
 
 That which gives the character of fraud to a represen- Represen- 
 tation untrue in fact is that it is made without belief in j^^de^ 
 its truth ; not necessarily with positive knowledge of its without 
 falsehood. Where a false representation amounts to an its truth : 
 actionable wi'ong, it is always in the party's choice, as an ^^^^ 
 alternative remedy, to seek rescission of the contract, if any, ledge of 
 which has been induced by the fraud : and the cases at ^ot neces- 
 common law have established that a false representation sary. 
 may be a substantive ground of action for damages though -^°tion of 
 it is not shown that the person 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 without believing it to be true {[/). On the 
 
 (/) story, Eq. Jui'. § 149. On proceed with the contract. A. is 
 
 the other hand it is in effect not bound to infonn B." 
 adopted as Illustration {d) to s. 17 {ff) TmjJor v. Ash ton, 11 M. & W. 
 
 of the Indian Contract Act : "A. 40i ; Evcois v. Edmonds, 13 C. B. 
 
 and B., being traders, enter upon a 777. See Benjamin on Sale, 415 — 
 
 contract. A. has private informa- 426, where the cases are fully dis- 
 
 tion of a change in prices which cussed, 
 would affect B.'s willingness to 
 
 ll2
 
 516 
 
 MISREPRESENTATION AND FRAUD. 
 
 EfPect of 
 reckless 
 igno- 
 rance. 
 
 other hand there is no actionable wrong in a representa- 
 tion which though untrue in fact is believed to be true by 
 the person making it (//) , even if the belief is not held on 
 reasonable grounds. Therefore a plaintiff claiming damages 
 for false representation must distinctly allege and prove 
 against the defendant either knowledge of the statement 
 being imtrue or reckless indifference as to its truth (?). 
 But the presence or absence of reasonable grounds is rele- 
 vant and important for determining whether the belief 
 was really entertained. " Supposing a man makes an 
 untrue statement, which he asserts to be the result of a 
 bona fide belief of its truth, how can the hona fides be tested 
 except by considering the grounds of such belief?" (X:). 
 
 Silence is equivalent to misrepresentation for this pur- 
 pose if " the withholding of that which is not stated makes 
 that which is stated absolutely false," but not otherwise {I). 
 
 It is also sufficiently certain that mere ignorance as to 
 the truth or falsehood of a material assertion which turns 
 out to be untrue must be treated as equivalent to know- 
 ledge of its untruth. " If persons 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 " (ni). In other words, wilful igno- 
 
 (/i) Taylor v. Ashton, supra; 
 Collins V. Evans, 5 Q. B. 820 ; 
 Ormrody. Huth, 14 M. & W. 651. 
 See notes to Chandelor v. Lopus, 1 
 Sm. L. C. 174 ; Higgins v. Sainels, 
 2 J. & H. 460, 466. If a man 
 affects to contract as an agent au- 
 thorized by a principal, having in 
 fact no authority, it has been said 
 that he may be sued on the false 
 statement as a wrong, "even though 
 he does not know it to bo false, but 
 believes without sufficient grounds 
 that the statement will ultimately 
 turn out to be correct :" per Cur. 
 Smout V. Ilbcri/, 10 M. & W. 1, 9 : 
 Bee however 1 Sm. L. C. 178. 
 
 (i) Redgrave v. Ilnrd, C. A., 20 
 Ch. D. at p. 12. 
 
 {k) Western Bank of Scotland v. 
 Addle, L. R. 1 Sc. & D. 145, per 
 Lord Chelmsford at p. 162. Lord 
 Cran worth's opinion (p. 168) comes 
 to the same thing, but points out 
 rather more strongly that it is a 
 matter of evidence, not a rule of 
 law. 
 
 {I) Peck V. Gurney, L. R. 6 H. L. 
 377, 390, 403, an equity case of the 
 same class. For other examples of 
 suits in equity before the Judica- 
 tui-e Acts analogous to the action 
 of deceit at law see SlUn v.Cronchcr, 
 1 D. F. J. 518 ; mil V. Lane, 1 Eq". 
 215, 220. 
 
 {m) Per Lord Cairns, Reese River 
 Silver Mining Co. v. Sniith, L. R. 4 
 H. L. 79 ; Rawlins v. Wickham, 3
 
 FRAUD : RECKLESS OR NEGLIGENT IGNORANCE. 517 
 
 ranee may have the same consequences as fraud (ii). So 
 may ignorance which, though not wilful, is reckless : as 
 when positive assertions of fact are made as 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 (o). 
 
 It is no less established that a person who makes a Negligent 
 wrong statement as to a fact which was once actually l^^l ^f 
 within his own knowledge, and which it is his business to facts once 
 remember, cannot excuse himself by alleging that he had 
 forgotten it at the time of making the statement (7;). 
 
 The general principles were thus summarized by Lord Lord 
 Hatherley, when Vice-Chancellor : g^^*^^^^■ 
 
 " First. Every man must be held responsible for the LVa^v. 
 consequences of a false representation made by him to ^roskey. 
 another, upon which that other acts, and so acting is 
 injured or damnified. 
 
 Secondly. Every man must be held responsible for the 
 consequences of a false representation made by him to 
 another, upon which a third person acts, and so acting is 
 injured or damnified — provided it appear that such false 
 representation was made with the intent that it should 
 be acted upon by such third person in the manner that 
 occasions the injury or loss {q). 
 
 De Gr. & J. 304, 316. At common belief of the truth of that which he 
 
 law the same rule was given by so asserts." 
 
 Maule, J. in Evans v. Edmonds, 13 («) Owoi v. Homan, 4 H. L. C. 
 
 C. B. 777, 786. " I conceive that at p. 1035. 
 
 if a man having no knowledge (o) Raivlins v. Wickham, 3 De G. 
 
 whatever on the subject takes upon & J. at p. 313, Smith's ca. 2 Ch. at 
 
 himself to repi'esent a certain state p. 611. 
 
 of facts to exist, he does so at his {p) Burrowes v. Lock, 10 Ves. 
 
 peril, and if it be done either with 470 ; Slim v. Crouchcr, ID. F. J. 
 
 a view to seciu'e some benefit to 518, 525. 
 
 himseK or to deceive a third person, {q) See Peek v. Gurney, L. R. 6 
 
 he is guilty of a fraud, for he takes H. L. 396, 412. 
 
 upon himself to waiTant his own
 
 518 MISREPRESENTATION AND FRAUD. 
 
 Thirdly. The injury must be the immediate and not the 
 remote consequence of the representation thus made " (;•). 
 
 These rules, it will be observed, are stated with reference 
 to a case in which the representation is made with know- 
 ledge of its untruth. The case of culpable ignorance is 
 not considered. 
 Other Fiu'ther, a fraudulent statement \vill have no legal effect 
 
 must be unless the party to whom it is made is really misled by it. 
 actually ^pj^^g jg expressed in cases of contract by the saying that 
 the fraud must be dolufi dans locum contractui. But this 
 point will be more conveniently dealt with in the next 
 chapter, as the rule extends beyond cases of actual fraud. 
 
 Sales by The application of the doctrine of fraud to sales by 
 
 employ- auction is peculiar. The courts of law held the employ- 
 ment of ment of a puffer to bid on behalf of the vendor to be 
 puller. , •*■ , 
 
 evidence of fraud in the absence of any express condition 
 
 fixing a reserved price or reserving a right of bidding ; 
 for such a practice is inconsistent with the terms on which 
 a sale by auction is assumed to proceed, namely that the 
 highest bidder is to be the purchaser, and is a device to 
 put an artificial value on the thing offered for sale (■*.). 
 There existed or was supposed to exist {t) in courts of 
 equity the different rule that the employment of one 
 puffer to prevent a sale at an undervalue was justifiable (»), 
 with the extraordinary result that in this particular case a 
 contract might be valid in equity which a com-t of law 
 would treat as voidable on the ground of fi'aud. The Sale 
 of Land by Auction Act, 1867 (30 & 31 Yict. c. 48), 
 assimilated the rule of equity to that of law. The Indian 
 Contract Act (s. 123) adopts the rule of the common 
 law {x). 
 
 {r) Barry v. Croskey, 2 J. & H. Mortimer v. BcU, 1 Ch. 10, 16. 
 
 122. {,() Smith V. Clarke, 12 Ves. 483 ; 
 
 (.») Green v. Baverstock, 14 C. B. Fliiit v. WuocUii, 9 Ha. G18. 
 
 N. S. 204, 32 L. J. C. P. 181. [x) " If at a sale by auction the 
 
 (<) Doubt was thrown upon it in seller makes use of pretended bid-
 
 FRAUD IN RELATION TO MAllKIAGE, 519 
 
 Marriage is, to some extent, an exception to the general Fraud in 
 
 relation t( 
 marriage. 
 
 rule : but marriage, though including a contract, is so ^^^ °^ ^ 
 
 much more than a contract that the exception is hardly a 
 real one. It has been said that " unless the party imposed 
 upon has been deceived as to the person and thus has given 
 no consent at all, [or is otherwise incapable of giving an 
 intelHgent consent], there is no degree of deception which 
 can avail to set aside a contract of marriage knowingly 
 made" (//). At any rate a marriage is not rendered in- 
 valid by the parties or one of them having practised a 
 fraud on the persons who performed the ceremony. Where 
 a marriage had been celebrated in due form by Roman 
 ecclesiastics at Rome between two Protestants, who had 
 previously made a formal abjuration (the marriage not 
 being otherwise possible by the law of the place as it then 
 was), it was held immaterial whether the abjm-ation had 
 been sincere or not, though as to the woman there was 
 strong evidence to show that it was not (z). 
 
 We may observe in this place that when the consent of Consent 
 a third party is required to give complete effect to a trans- persons 
 action between others, that consent may be voidable if obtained 
 procured by fraud, and the same rules are applied, so far 
 as applicable, which determine the like questions as be- 
 tween contracting parties. Thus where the approval of 
 the du'ectors is necessary for the transfer of shares in a 
 company, a false description of the transferee's condition, 
 such as naming him "gentleman" when he is a servant or 
 messenger, or a false statement of a consideration paid by 
 him for the shares, when in truth he paid nothing or was 
 
 dings to raise the price, the sale is and Divorce, §§ 165 — 206. The 
 voidable at theoption of the buyer." Scottish Courts have also set aside 
 (y) Sivift V. Kelli/, 3 Knapp, 257, marriages where the woman's con- 
 293 : but this is one of Lord sent, though obtained by fraudu- 
 Brougham's doubtful or more than lent means and what we call " un- 
 doubtful generalities. In several due influence," appeared to have 
 of the United States marriage is in been a real one : Fraser on the 
 some circumstances voidable for Personal and Domestic Relations, 
 fraud : see Mr. Wald's note here, i. 234. 
 refeiTing to Bishop on Maniage (s) Swift y. Iielli/,S 'Kaap-p, 2o7.
 
 520 MISREPRESENTATION AND FRAUD. 
 
 paid to execute tlie transfer, is a fraud upon the directors, 
 the object being to mislead them by the false suggestion 
 of a real purchase of the shares by a man of independent 
 position ; and on a winding-up the Court will replace the 
 transferor's name on the register for the purpose of making 
 him a contributory (a). 
 
 (ff) Ex parte Kintrea, 5 Ch. 95, Payne'' s ca. and Williams' ca. 9 Eq. 223 ; 
 Lindley, 2. 1436.
 
 ( 521 ) 
 
 CHAPTEE X. 
 
 The Right of Rescission. 
 
 We have now to examine a class of conditions which apply Examina- 
 indifferently, or very nearly so, to cases of simple mis- q^^eg^iong 
 representation (that is, where the truth of a representa- op rescis- 
 tion is in any way of the essence of a contract) and cases of voidable 
 fraud. Some of them, indeed, extend to all contracts which contracts. 
 are or have hecome voidable for any cause whatever. 
 The questions to be dealt with may be stated as follows : 
 What must be shown with regard to the representation 
 itself to give a right to relief to the party misled ? 
 
 What is the extent of that right, and within what 
 bounds can it be exercised ? 
 
 1. As to the representation itself. 
 
 A. It must (except, perhaps, in a case of actual fraud) be As to the 
 a representation of fact, as distinguished on the one hand i^^o^j^^^' 
 from matter of law, and on the other hand from a matter relied on 
 
 p . . • L L- foi" re- 
 
 01 mere opinion or intention. scinding a 
 
 As to the first branch of the distinction, there is contract. 
 1 . . J • n 1 ■•■* must be 
 
 authority at common law that a misrepresentation oi the of matter 
 
 legal effect of an instrument by one of the parties to it f j ^'(j[J°t 
 
 does not enable the other to avoid it [a). And in equity ?t<. as to 
 
 there is no reason to suppose that the rule is otherwise, fraud). 
 
 though the authorities only go to this extent, that no 
 
 independent liability can arise from a misrepresentation of 
 
 what is pm'ely matter of law (h). But this probably does 
 
 (ff) Leicis V. Jones, 4 B. & C. 506. {b) Rashdall v. Ford, 2 Eq. 750 ; 
 
 Not so if the actual contents or Bcattie v. Lord Ebury, 7 Ch. 777, 
 nature of the instrument are mis- 802, L. R. 7 H. L. 102, 130 (the 
 represented, as wc saw in Ch. VIII. House of Lords held there was no 
 
 misrepresentation at all).
 
 522 THE RIGHT OF RESCISSION. 
 
 not apply to a deliberately fraudulent mis-statement of the 
 law (c) . The circumstances and the position of the parties 
 may well be such as to make it not imprudent or unreason- 
 able for the person to whom the statement was made to 
 rely on the knowledge of the person making it : and it 
 would certainly work injustice if it were held necessary to 
 apply to such a case the maxim that every one is presumed 
 to know the law. 
 And not As to the second branch, we must put aside the cases 
 
 moUye° already mentioned in which the substance of the fraud is 
 or in ten- ^ot misrepresentation, but a wrongful intention going to 
 the whole matter of the contract. Apart from these it 
 appears to be the rule that a false representation of motive 
 or intention, not amounting to or including an assertion of 
 existing facts, is inoperative. " It is always necessary to 
 distinguish, when an alleged ground of false representation 
 is set up, between a representation of an existing fact which 
 is untrue and a promise to do something in future " {d). 
 On this ground was put the decision in Vernon v. Keys (e), 
 where the defendant bought a business on behalf of a 
 partnership firm. The price was fixed at 4,500/. on his 
 statement that his partners would not give more : a state- 
 ment afterwards shown to be false by the fact that he 
 charged them in account with a greater price and kept the 
 resulting difference in their shares of the purchase-money 
 for himself. It was held that the vendor could not main- 
 tain an action of deceit, as the statement amounted only 
 to giving a false reason for not offering a higher price. 
 The case also illustrates the principle that collateral fraud 
 practised by or against a third person does not avoid a 
 contract. Here there was fraud, and of a gross kind, as 
 
 {c) Hirachf del Y.Londm, Brig hto)}, [e) 12 East 632, in Ex. Ch. 4 
 
 6; South Coast Rij. Co., 2 Q. B. D. 1; Taunt. 488. The language used in 
 
 JBowen, L. J. in West London Com- the Ex. Cli. to the effect that the 
 
 nicrcial Bank v. ICitson, 13 Q. B. D. biiyer's liberty must be co-exten- 
 
 at p. 363. sivo -with the seller's, which is to 
 
 {d) McUish, L. J., J^x parte Bur- "tell every falsehood he can to in- 
 
 rcll, 1 Ch. D. at p. 652. duce a buyer to purchase," is of 
 
 course not to be literally accepted.
 
 REPRESENTATIONS OF FACT OR OTHERWISE. 523 
 
 between the buyer and his partners ; but we must dismiss 
 this from consideration in order to form a correct estimate 
 of the decision as between the buyer and seller. It must 
 be judged of as if the buyer had communicated the whole 
 thing to his partners and charged them only with the 
 price really given. Still the decision is difficult to accept. 
 For the buyer was the agent of the firm, and in substance 
 made a false statement of a distinct matter of fact touching 
 the extent of his authority, though it was no doubt a 
 matter as to which he was not bound to make any state- 
 ment or to answer any Cj[uestions. And it has been held 
 in the Privy Council that it is clearly fraudulent for A. 
 and B. to combine to sell property in B.'s name, B. not 
 being in truth the owner but only an intermediate agent, 
 and the nominal price not being the real price to be paid 
 to the owner A., but including a commission to be retained 
 by B. (/). This seems to shake the authority of Venion 
 V. Keys, though it cannot actually overrule the decision {g) . 
 This difficulty, however, affects only the particular appli- 
 cation of the doctrine on which the Com-t proceeded. 
 
 It needs no authority to show that a statement of what State- 
 is merely matter of opinion cannot bind the person making matter of 
 it as if he had warranted its correctness. And authority opinion. 
 has gone so far as to say that if a man makes assertions, 
 as of matter of fact within his own knowledge, concerning 
 that which is by its nature only matter of more or less 
 probable repute and opinion, he is not legally answerable 
 as for a deceit if the assertion turns out to be false (//). 
 
 (/) Lindsatj Petroleum Co. \. Surd, peared to have ample means, but 
 
 L. E. 5 P. C. 221, 243. turned out to be an impostor. The 
 
 {(j) The decisions of the Judicial majority of the Coiu-t seem to have 
 
 Committee, though they cany great thought that the plaintiff must in 
 
 weight, are not binding in English the cii'cimistances have known the 
 
 Courts : see Leash v. /S'coW, 2 Q. B. defendant to be expressing only an 
 
 D. 376, where the C. A. refused to opinion founded on that which ap- 
 
 foUow the Judicial Committee, also peared to all the world. So a 
 
 Smith V. Brown, L. R. 6 Q. B. at statement of confident expectation 
 
 p. 736. of profits must be distinguished 
 
 (h) Hai/cra/t v. Creasi/, 2'Ea.st 92. from an assci-tion as to profits 
 
 Here the defendant had stated, as actually made : Bellairs v. Tackcr, 
 
 a fact withrn his own knowledge, 13 Q, B. D. 562. 
 that a person was solvent who ap-
 
 524 
 
 THE RIGHT OF RESCISSION. 
 
 Seeming 
 exception 
 of equit- 
 able doc- 
 trine as to 
 ' ' making 
 represen- 
 tations 
 
 Ambigu- 
 ous state- 
 ments. 
 
 The re- 
 presenta- 
 tion must 
 induce the 
 contract. 
 No relief 
 to a party 
 who has 
 acted on 
 his own 
 judgment. 
 
 But it seems doubtful if this could be upheld at the present 
 day. For surely the affirmation of a thing as within my 
 own knowledge implies the affirmation that I have peculiar 
 means of knowledge : and if I have not such means, then 
 my statement is false and I shall justly be held answer- 
 able for it, unless indeed the special knowledge thus 
 claimed is of a kind manifestly incredible. 
 
 A seeming exception to this principle is offered by the 
 cases in equity on the supposed head of " making repre- 
 sentations good." But these have already been considered, 
 and the conclusion has been adopted that no such doctrine 
 really exists {i) . 
 
 Statements which in themselves are ambiguous cannot 
 be treated as fraudulent merely because they are false in 
 some one of their possible senses. In such a case the party 
 who complains of having been misled must satisfy the 
 Court that he understood and acted on the statement in 
 the sense in which it was false (A'). 
 
 B. The representation must be such as to induce the 
 contract [dans locum contractui) [l). 
 
 Relief cannot be given on the ground of fraud or mis- 
 representation 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. 
 
 " The Court must be careful that in its anxiety to correct 
 fi-auds 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 " {m). 
 
 [l] P. 481 sqq., and Note N. in 
 Appendix. 
 
 (k) iSmith'v. Chadwic/c, 9 AY>'p. Ca. 
 187, see especially per Lord Black- 
 bum at pp. 199-201. Thelanguagc 
 used in Mallows v. Fernie (3 Ch. at 
 p. 47G) seems to go too far. Lord 
 Blackbuni leaves it as au unsettled 
 question what woiJd happen if the 
 defendant could in turn prove tho 
 
 falsehood or ambiguity to be due 
 to a mere blunder. 
 
 (/) Lord Brougham, Attwood v. 
 Small, 6 CI. & F. 444 ; Lord Wens- 
 leydalc, Smith v. Kaij, 7 H. L. C. 
 775-6. 
 
 ()w) Jcinwigs v. Broitghton, 5 D. 
 M. G. 12G, HO; Dyer \. Margrave, 
 10 Ves. 505.
 
 REPRESENTATION INDUCING CONTRACT. 525 
 
 It is not perfectly free from doubt whether in any, and 
 if in any, in what cases the possession of means of know- 
 ledge which if used would lead to the discovery of the 
 truth will bar the party of his remedy. 
 
 In the case of active misrepresentation it is no answer As to 
 in proceedings either for damages or for setting aside the ^^^^, ^^ 
 contract to say that the party complaining of the misrepre- ledge : im- 
 sentation had the means of making inquiries. " In the in case of 
 case of Dohell v. Sf evens (ii) . . which was an action for ''icj:ive 
 
 ,..„,, . , misrepre- 
 
 deceit m falsely representing the amount of the business sentation. 
 done in a public-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" (o). 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 misrepresented : — " Admit- 
 ting that he might by minute examination make that dis- 
 covery, he was not driven to that examination, the other 
 party ha-sang taken upon him to make a representation, . . 
 The purchaser is induced to make a less accurate exami- 
 nation by the representation, which he had a right to 
 believe" (j)). The principle is that "No man can com- 
 plain that another has too implicitly relied on the truth of 
 what he has himself stated " (q). And it is not enough to 
 show that the party misled did make some examination on 
 his own accomit ; proof of cursory or ineffectual inquiries 
 will not do (/■) . 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 (s). 
 In 1867 the same principle was affirmed by Lord Chelms- 
 ford in the House of Lords (f). The suit was instituted by 
 
 («) 3 B. & C. 623. D. M. G-. 339, 3i6. 
 
 (o) Per Lord Chelmsford, L. R. (/•) Redgrave v. Kurd, C. A., 20 
 
 2H. L. 121. Ch. D. 1. 
 
 (p) Bijer V. Hargrave, 10 Ves. at [s) Redgrave v. Ilurd, C. A., 20 
 
 p. 509. Ch. D. 1, 21 (Jessel, M. R.). 
 
 {q) Reynell v. Sprge, 1 D. M. G. {t) Central Rg. Co. of Venezuela v. 
 
 at p. 710 ; Price v. Macaulay, 2 Kisch, L. R. 2 H. L. 99, 120. As
 
 526 
 
 THE RIGHT OF RESCISSION. 
 
 Otliei-wise 
 in case of 
 mere non- 
 disclo- 
 sure, 
 semble. 
 
 Mere as- 
 sertion of 
 title. 
 
 a shareholder in a railway company to be relieved from 
 his contract on the ground of misrepresentations contained 
 in the prospectus. Here it was contended that the pro- 
 sj)ectus referred the intending shareholder to other docu- 
 ments, 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 and omissions of the prospectus. But 
 the objection is thus answered : — 
 
 * ' When once it is established that there has been any fraudulent 
 misrepresentation or wilful concealment by which a person has been 
 induced to enter into a contract, it is no answer to his claim to be re- 
 lieved from it to tell him that he might have known the truth by proper 
 rnquiiy. He has a right to retort upon his objector, ' Ton at least, who 
 have stated what is untrue, or have concealed the truth for the purpose 
 of drawing me into a contract, cannot accuse me of want of caution 
 because I relied implicitly upon youi- fairness and honesty.' " 
 
 This doctrine appears, also on Lord Chelmsford's au- 
 thority, not to apply to the case of mere non-disclosure, 
 %vithout fraudulent intention, of a fact which ought to 
 have been disclosed. 
 
 " When the fact is not misrepresented but concealed [or 
 rather not communicated] {it) 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" {x). 
 
 It appears also not to apply to a mere assertion of title 
 by a vendor of land (//) . 
 
 In a case before Lord Hatherley, when V.-C, the double 
 question arose of the one party's knowledge that his state- 
 ment was untrue, and of the other's means of learning the 
 truth. The suit was for specific performance of an agree- 
 
 to the earlier and indecisive case of 
 Attwood V. Small, 6 CI. & F. 232, 
 ftee now Itedgrave v. Hurd, 20 Ch. 
 D. at p. 14. 
 
 («) See L. E. 2 H. L. 339. 
 
 [x) New Brunsivick, ^-c. Co. v. 
 
 Conuhcarc, 9 H. L. C. 711, 742. 
 
 (//) Hume V. Pococlc, 1 Ch. 379, 
 385, where however the real con- 
 tract was to buy up a particular 
 claim of title, whatever it might 
 be worth.
 
 KEPRESENTATION INDUCING CONTRACT. 527 
 
 ment to take a lease of a limestone quarry. The plaintiff 
 made a distinct representation as to the quality of the 
 limestone which was in fact imtrue : he did not helieve it 
 to he false, hut 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 not 
 competent to judge of the quality of limestone. The 
 result was that the Court refused specific performance, 
 declining to decide whether the contract was otherwise 
 valid or not (z) . 
 
 The case of HorsfaU v. Thomas {a) was decided on Attempt 
 
 , , • • 1 J 1 J • 1 j_ to deceive 
 
 the same principle ; there a contrivance was used to inspection 
 
 conceal a defect in a gun manufactured to a purchaser's which 
 
 1 1 • • 1 • J • purchaser 
 
 order, but the purchaser took it without any inspection, omits to 
 
 and therefore, although the vendor intended to deceive ™^^^- 
 him, had not been in fact deceived. 
 
 It might also be given as a rule that the representation 
 must be material. But to make this quite accurate it 
 should be stated in the converse 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 {b) ; it rather presumes that 
 assent would not have been given if the facts had been 
 
 (s) Hiffffins V. Samels, 2 J. & H. Smith v. Hughes, L. R. 6 Q. B. at 
 
 460, 468, 469. p. 605, but it seems good kw. 
 
 (rt) 1 H. & C. 90, 31 L.J. Ex. 322, [b) WiUiams' ca. 9 Eq. 225, n. 
 
 dissented from by Cockburn, C. J.
 
 528 
 
 THE RIGHT OF RESCISSION. 
 
 And con- 
 tract inci- 
 dental to 
 fraudu- 
 lent trans- 
 action is 
 itseK 
 treated as 
 fraudu- 
 lent. 
 
 known (c) . Those who have made false statements cannot 
 ask the Coiu't to speculate on the exact share they may- 
 have had in inducing the transaction (d) ; or on what 
 might have been the result if there had been a full com- 
 munication of the truth (e) : 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 (/). This inference or presumption is one of fact, not 
 of law, and is open to contradiction like other inferences 
 of the same kind (g) . 
 
 In like manner, if there has been an omission even 
 without fraud to communicate something which ought to 
 have been communicated, it is too late to discuss whether 
 the communication of it would probably have made any 
 difference (//). 
 
 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 (e), 
 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. 
 
 There is an exception, but only an apparent one, to the 
 rule that the representation must be the cause of the other 
 party's contracting. A contract arising clii-ectly out of a 
 previous transaction between the same parties which was 
 voidable on the ground of fraud is itself in like manner 
 voidable. A. makes a contract 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 
 
 (c) Ex parte Kintrea, 5 Ch. at 
 p. 101. 
 
 [d) Reynell v. Sprye, 1 D. M. G. 
 at p. 708. 
 
 (c) Smith V. Kaijy 7 H. L. C. at 
 p. 759. 
 
 (/) Per Lord Denman, C. J. 
 Watson V. Earl of Churlemont, 12 
 Q. B. 856, 804. to the like effect, 
 
 Jessel, M. R. in Smith v. Chadwick, 
 20 Ch. D. at p. 44 (see however 
 next note). 
 
 [g) Lord Blackburn, Smith v. 
 Chadwick, 9 App. Ca. at p. 196. 
 
 {h) Traill v. Baring, 4 D. J. S. 
 at p. 330. 
 
 (i) lonidcs v. Pender,!,. R. 9 Q.B. 
 539 ; supra, p. 489.
 
 REPRESENTATION INDUCING CONTRACT. 529 
 
 contract : if he afterwards discovers the scheme B. can 
 rescind this last agreement and recover the money 
 back (/.:). 
 
 ' ' If the promoter of a company procures a company to be fonncd by 
 improper and fraudident meanw, and for the purpose of securing- a profit 
 to himself, which, if the company was successful, it woidd he unjust and 
 inequitable to allow him to retain [in the particular case a secret payment 
 to the promoter out of piu'chasc-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 thewinding-ui), cither 
 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" {I). 
 
 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 pm^chaser's agent, and afterwards 
 reclaim them, indemnifying the railway company, these 
 facts constitute a good defence to an action by the pur- 
 chaser's agent against the railway company, though the 
 re-delivery to the vendors was before the discovery of the 
 fraud and arose out of an unsuccessful attempt to stop the 
 goods in transitu (iii). 
 
 C, The representation must be made by a party to the Must be 
 contract. This rule in its simple form is elementary. It !J!^^|.y ^o ^ 
 is obvious that A. cannot be allowed to rescind his contract t^^ con- 
 with B. because he has been induced to enter into it by 
 some fraud of C. to which B. is no party (n). Thus in 
 Sturge v. Starr (o) a woman joined with her supposed 
 husband in dealing with her interest in a fund. The 
 marriage was in fact void, the man having concealed from 
 her a previous marriage. It was held that this did not 
 affect the rights of the purchaser. And so if A. effects 
 
 (k) Barryw. Croskeij, 2 J. & H. 1. misconceived act being justified by 
 
 (/) Per Cur. Hereford ^- 8. Wales reference to the true ground of re- 
 
 Waggon ^- E)igineering Co. 2 Ch. D. scission afterwards discovered, cp. 
 
 621, 626. Wriglifs ca. 7 Ch. 55. 
 
 (««) dough V. L. S; N. W. Ey. Co. {//) See per Lord Cairns, Smithes 
 
 (Ex. Ch.), L. R. 7 Ex. 20, an ex- ca. 2 Ch. at p. 616. 
 
 ceedingly instructive case : as to the (o) 2 My. & K. 195. 
 
 P. M M
 
 530 THE RIGHT OF RESCISSION. 
 
 an insuranoe on the life of B., false statements made by 
 B. to the insurance office concerning his own health, but 
 not known by A. to be false, do not in the absence of 
 special conditions avoid the contract (^;). 
 As to re- When we come to deal with contracts made by agents 
 tionsmade the question arises to what extent the representations of 
 by agents, -j^j^g 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 difficulty. A false state- 
 ment made by an agent with his principal's express autho- 
 rity, the principal knowing it to be false, is obviously 
 equivalent to a falsehood told by the principal himself ; 
 and we do not know that it has ever been supposed to make 
 any difference whether the agent knows the statement to 
 be false or not. But we may also have the following cases. 
 The statement may be not expressly authorized by 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 
 authorized by the principal, the true state of the facts 
 being, however, known to the principal. There is no doubt 
 that in the first case the principal is answerable, subject 
 only to the limitation to be presently stated (q) . In the 
 second case there is every reason to believe that the same 
 rule holds good, notwithstanding a much canvassed de- 
 cision to the contrary (r), which, if not overruled by the 
 remarks since made upon it {s), has been cut down to a 
 decision on a point of pleading which perhaps cannot, and 
 certainly need not, ever arise again. 
 The only ^^q can at once see that the above distinctions are 
 whether material, if at all, only when there is a question of fraud 
 
 (p) WheeJtoH v. Hardisd/, 8 E. & (;•) Cornfoot v. FowJce, 6 M. &W. 
 
 B. 232, 285, 27 L. J. Q. B. 241. 358. 
 
 {q) The rule applies to an agent (.s) 2 Sm. L. C. 88 : and see es- 
 
 •who profits by the fraud of a sub- pecially per Willes, J. in Barwick 
 
 agent employed by him: Cockburn, v. English Joint Stock Bank, L. R. 
 
 C. J. in Weir v. Bell, 3 Ex. D. at 2 Ex. 262. 
 p. 249.
 
 FRAUD OF AGENTS. 531 
 
 in the strict sense, and then chiefly when it is sought to tlie repro- 
 mako the princij^al liable e.r delicto. Where a non-fraudu- waVwithiii 
 lent misrepresentation suffices to avoid the contract, there thoagent's 
 it is clear that the only thing to be ascertained is whether 
 the representation was in fact within the scope of the 
 agent's authority. But it may be now taken as the law Barwick 
 that this is the only question even in a case of fraud. It joint ° 
 has been so laid down by a considered judgment of the ^°^^ 
 Exchequer Chamber (f) , fully approved by later decisions Mack'ay v. 
 of the Judicial Committee (w). According to this tlie rule ^j°j^;^^""k 
 is " that the master is answerable for every such wrong," of New 
 including fraud, '' of the servant or agent as is committed ^^^k. ' 
 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 authorized 
 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 (;?;). 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 pro- 
 position that the party misled is |^entitled to rescind the 
 contract induced by such representation. On the whole 
 there seems to be no room for serious doubt that the law 
 of England as now settled is correctly expressed by s. 238 
 of the Indian Contract Act : — 
 
 "Misrepresentations made, or frauds committed, by agents acting in 
 the course of their business for their principals, have the same effect on 
 agreements made by such agents as if such misrepresentations or frauds 
 had been made or committed by the pi'incipals ; but misrepresentations 
 
 (;') Banvickv. English Joint Stock ing- from the dicta on this point in 
 
 Bank, L. E. 2 Ex. 259. Western Bank of Scotland v. Addie, 
 
 {u) Mctckayv. Commercial Bank of L. R. 1 Sc. &D. 145, which, though 
 
 New Brunsivick, L. E,. 5 P. C. 394, apparently intended to be decisive, 
 
 411 ; Swire v. Francis, 3 App. Ca. have not been followed. Swift v. 
 
 106. Jewsbury (Ex. Ch.), L. E. 9 Q. B. 
 
 (.r) L. E. 5 P. C. 413-5, dissent- at p. 312, per Lord Coleridge, C. J. 
 
 'SI Ji 2
 
 532 THE RIGHT OF RESCISSION. 
 
 made or frauds committed by agents in matters which do not fall within 
 their authority do not affect their principals." 
 
 Directors The directors and other officers of companies, acting 
 raotere?" witliin the functions of their offices, are for this purpose 
 agents, and the companies are hound hy their acts and 
 conduct. Conversely, where directors employ an agent for 
 the purposes of the company, and that agent commits a 
 fi-aud in the course of his employment 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 (y) : and one director is not liable 
 for fraud committed by another director without his 
 authority or concurrence {z). Reports 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 (a). Statements in a prospectus 
 issued by promoters 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 {h). But such statements 
 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 to B., and B. repeats it to C. in an 
 unqualified manner, intending 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 him- 
 self, it is easy for him to say : " This is what A. tells me, 
 
 (y) Weirv. Barnett,Z'Ex.'D.Z2, {z) Cargill v. Bower, 10 Ch. D. 
 
 affd. in C. A. nom. Weir v. Bell, ih. 502. 
 
 238. But a director who profited («) Per Lord Westbury, New 
 
 by the fraud after knowledge of it Brioiswick, ^-c. Co. v. Conyhearc, 9 
 
 would probably be liable : seejudg- H. L. 0. 711, 725. 
 
 ments of Cockburu, C.J. and Brett, ih) P. 107 above. 
 L.J.
 
 REPRESENTATIONS OF AGENTS. 533 
 
 and on his authority I repeat it ; for my ovm. part I believe 
 it, but if you want any further assurance it is to him you 
 must look " (c). 
 
 It is to be borne in mind that in a case of actual fraud Agent 
 on the part of an agent the responsibility of the principal liauJfor 
 does not in any way exclude the responsibility of the lii« <^'^^'^ 
 agent. " All persons directly concerned in the commission fraud. 
 of a fraud are to be treated as principals"; and in this 
 sense it is true that an agent or servant cannot be autho- 
 rized to commit a fraud. He cannot excuse himself on 
 the ground that he acted only as agent or servant {d ) . 
 
 D. The representation must be made as part of the Therepre- 
 sametransaotioB. ^^fin 
 
 It is believed that the statement of the rule in this form, tiic same 
 though at first sight vague, is really more accurate than tion. 
 that which presents itself as an alternative, but is in fact 
 included in this — namely that the representation must be 
 made to the other party or with a view to his acting upon 
 it. The effect of the rule is that the untruth of a rej)re- 
 sentation made to a third person, or even to the party him- 
 self on some former occasion, in the course of a different 
 transaction and for a different purpose, cannot be relied on 
 as a ground either for rescinding a contract or for main- 
 taining an action of deceit. Thus in Western Bank of Western 
 Scotland v. Addie {c) the directors of the bank had made ? ^"^^ ^K 
 a series of flourishing but untrue reports on the condition v. Addie. 
 of its affairs, in which bad debts were counted as good 
 assets. The shareholder who sought relief in the action 
 had taken additional shares on the faith, as he said, of 
 these reports. But it was not shown that they were issued 
 or circulated for the purpose of inducing existing share- 
 holders to take more shares, or that the local agent of the 
 
 ((.■) Smith's ca. 2 Ch. 604, 611 ; {d) Per Lord Westbmy, CuUcn\. 
 
 p. 517 above; and further, as to Thomson'' s Trustees and Kerr, A 'M.a.cq^. 
 
 the application of the doctrines of 4'2-l, 432 ; Sivift v. Wintcrhotham, 
 
 agency to partners and directors on L. R. 8 Q. B. 244, 254. 
 
 these points, Lindley, 1. 314 tqq. [e) L. R. 1 So. & D. 145.
 
 534 THE RIGHT OF RESCISSION. 
 
 "bank wlio effected this particular sale of shares used them 
 or was authorized to use them for that purpose. Thus the 
 case rested only on the purchaser having acted under an 
 impression derived from these reports at some former 
 time ; and that was not such a direct connexion between 
 the false representation and the conduct induced by it as 
 must be shown in order to rescind a contract. This, how- 
 ever, was not the only ground of the decision : its main 
 principle, as explained in a later case in the House of 
 Lords, being that a person who remains a shareholder, 
 either by having affirmed his contract with the company 
 or by being too late to rescind it, cannot have a remedy in 
 damages against the corporate body for representations on 
 the faith of which his shares were taken (/) . 
 
 Peek V. In Peek v. Gtirney {g) the important point is decided 
 
 umey. ^^^^ ^^^ ^^^^ office of a prospectus is to invite the public 
 to take shares in the company in the first instance. Those 
 who take shares in reliance on the prospectus are entitled 
 to their remedy if the statements in it are false. But those 
 statements cannot be taken as addressed to all persons who 
 may hereafter become pm-chasers of shares in the market ; 
 and such persons cannot claim any relief on the ground of 
 having been deceived by the prospectus unless they can 
 show that it was specially communicated to them by some 
 further act on the part of the company or the directors. 
 Some former decisions the other way {h) are expressly over- 
 ruled. The proceeding there in hand was in the nature of 
 an action of deceit, but the doctrine must equally apply to 
 the rescission of a contract. 
 
 Way V. In Way v. Hearn (/) the action was on a promise by the 
 
 defendant to indemnify the plaintiff against half of the 
 
 [f) Houhhu-oytlix.CUyofGlasgoiv Ex. G2, «. The aiithority of Ger- 
 Bank, o App. Ca. 317. . hard v. Bates, 2 E. & B. 476, 22 L. 
 
 (-7) L. R. 6 II. L. 377, 395: and J. Q. B. 364, is saved by a rather 
 
 see the case put by Lord Cairns as fine distinction : L. R. 6 H. L. 
 
 an illustration at p. 411. 399. 
 
 {h) Bedford v. Bagshaw, 4 H. & (i) 13 C. B. N. S. 292, 32 L. J. 
 
 N. 538, 29 L. J. Ex. 59 ; Bagshaw C. P. 34. 
 V. Seymour, 18 C. B. 903, 29 L. J. 
 
 Hearn.
 
 REPRESENTATION MUST BE IN SAME TRANSACTION. 535 
 
 loss lie might sustain by having accepted a bill drawn by 
 one R. Shortly before this, in the course of an investiga- 
 tion of R.'s affairs in which the defendant took part, R. 
 had at the plaintiff's request concealed from the accountant 
 employed in the matter the fact that he owed a large sum 
 to the plaintiff ; the plaintiif said his reason for this was 
 that he did not wish his wife to know he had lent so much 
 money upon bad security. At this time the bill which 
 was the subject of the indemnity was not thought of; it 
 was in fact given to get rid of an execution afterwards put 
 in by another creditor. Here a misrepresentation as to 
 R.'s solvency was made by R. in concert with the plaintiff, 
 and communicated to the defendant ; but it was in a trans- 
 action unconnected with the subsequent contract between 
 the plaintiff and the defendant, and the defendant was 
 therefore not entitled to dispute that contract on the 
 ground of fraud. 
 
 2. As to the right of the party misled. This right is one As to 
 which requires, and in several modern oases of importance p^^J' ° 
 has received, an exact limitation and definition. It may misled : 
 be thus described : statement. 
 
 The party who has been induced to enter into a contract 
 by fraud, or by concealment or misrepresentation in any 
 matter such that the truth of the representation made, or 
 the disclosure of the fact, is by law or by special agreement 
 of the parties of the essence of the contract, may affirm the 
 contract, and insist, if that is possible, on being put in the 
 same position as if the representation had been true : 
 
 Or he may at his option rescind the contract within a 
 reasonable time (/r) after discovering the misrepresentation, 
 unless it has become impossible to restore the parties to 
 the position in which they would have been if the contract 
 had not been made, or unless any third person has in good 
 faith and for value acquired any interest under the contract. 
 
 (/.;) But qu. whether time is iu itself material : see L. E.. 7 Ex. 35, 
 8 Ex. 205.
 
 536 THE RIGHT OP' RESCISSION. 
 
 It will be necessary to dwell separately on tlic several 
 points involved in this. And it is to be observed that tbe 
 princij)les liere considered are not confined to any particular 
 ground of rescission, but apply generally when a contract 
 is voidable, eitber for fraud or on any other ground, at the 
 option of one of the parties ; on a sale of land, for example, 
 it is constantly made a condition that the vendor may 
 rescind if the purchaser takes any objection to the title 
 which the vendor is unable to remove ; and then these 
 rules apply so far as the nature of the case admits. 
 
 Of afBrma- A. As to the nature of the right in general, and what is 
 
 tion and 
 rescission 
 
 an affirmation or rescission of the contract. 
 
 in general. 
 
 " A contract induced by fraud is not void, but voidable 
 only at the option of the party defrauded ; " in other words, 
 valid until rescinded (/). 
 
 Where the nature of the case admits of it, the party 
 misled may affirm the contract and insist on having the 
 representation made good. If the owner of an estate sells 
 it as unincumbered, concealing from the purchaser the 
 existence of incumbrances, the purchaser may if he thinks 
 fit call on him to perform his contract and redeem the 
 incumbrances (;;?). If promoters of a partnership under- 
 taking induce persons to take part in it by untruly repre- 
 senting that a certain amount of capital has been abeady 
 subscribed for, they will themselves be put on the list of 
 contributories for that amount {)i). 
 Election to It is to be remembered that the right of election, and 
 affirm. the possibility of having the contract performed with com- 
 pensation, does not exclude the option of having the 
 contract wholly set aside. " It is for the party defrauded 
 to elect whether he will bo bound" (o). But if he does 
 
 (/) Oa/ics y. Turquand, L. R. 2 («) Moore and De la Torre's ca.. IS 
 
 11. L. 316, 375-G. Eq. 661. 
 
 (m) Per Roniilly, M. E. in I'ltls- (o) liawU/is v. JFickham, 3 Do G. 
 
 ford V. liichards, 17 Beav. 96. Cp. & J. 304, 322. 
 Ungley v. I'nglcy, 5 Ch. D. 887.
 
 ELECTION TO RESCIND. 537 
 
 afBrm the contract, bo must affirm it in all its terms. 
 Thus a vendor who has been induced by fraud to sell 
 goods on credit cannot sue on the contract for the price of 
 the goods before the expiration of the credit : the proper 
 course is to rescind the contract and sue in trover (7^). 
 When the contract is once affirmed, the election is com- "vvhat 
 pletely determined ; and for this purpose it is not necessary s^i^H.^e- 
 that the affirmation should be express. Any acta or election. 
 conduct which unequivocally treat the contract as sub- 
 sisting, after the facts giving the right to rescind have 
 come to the knowledge of the party, will have the same 
 effect (q). Taking steps to enforce the contract is a con- 
 clusive election not to rescind on account of anything 
 known at the time (r). A shareholder cannot repudiate 
 his shares on the groimd 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 statements of 
 the prospectus were not true (s), or if after discovering the 
 true state of things he has taken an active part in the 
 affairs of the company (f) or has affirmed his ownership 
 of the shares by taking steps to sell them {ti) ; and in 
 general a party who voluntarily acts upon a contract which 
 is voidable at his option, having knowledge of all the facts, 
 cannot afterwards repudiate it if it turns out to his dis- 
 advantage (.r-). 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 discovery of further facts constituting " a new 
 
 {p) Ferguson v. Carrington, 9 B. Venezuela, 9 Eq. 266, n. 
 
 & C. 59. This is unimportant in [t) Sharplcy v. Louth c^- East Coast 
 
 practice now that the old forms of Ry. Co. (C. A.), 2 Ch. D. 663. 
 
 action are abolished, but it is re- {u) Ex parte Briggs, 1 Eq. 483 ; 
 
 tained as a good illustration of the this however was a case not of 
 
 principle. mis-stated facts but of material 
 
 [q) Clough V. L. &; N. W. Ry. Co. departure from the objects of the 
 
 (Ex. Ch.), L. R. 7 Ex. at p. 34. company as stated in the pro- 
 
 (>•) Crray v. Fowler (Ex. Ch.), L. spectus. 
 
 R. 8 Ex. 249, 280. (.*) Ormcs v. Rcadd, 2 D. F. J. 
 
 (s) Scholey v. Central Ry. Co. of 332, 336.
 
 538 
 
 THE RIGHT OF RESCISSION. 
 
 Election 
 to rescind 
 must be 
 communi- 
 cated to 
 other 
 party. 
 
 incident in tlie fraud " cannot revive it (y). The exercise 
 of acts of ownership over property 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 immaterial whether there is knowledge of the 
 true state of affairs or not, unless there were a continuing 
 active concealment or misrepresentation practised with a 
 view to prevent the party defrauded from discovering the 
 truth and to induce him to act upon the contract ; for then 
 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 evi- 
 dence, and may be conclusive evidence, of an election to 
 affrm the contract ; and this is in truth the only effect of 
 lapse of time. Still it will be more convenient to consider 
 this point separately afterwards. 
 
 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 proceed- 
 ings (z) . Or if the other party is the first to sue on the 
 
 (y) C(a»pbcll v. Fleming, 1 A. & 
 E. 40. This does not apply where a 
 new and distinct cause of rescission 
 arises: Gray v. Fowler, L. R. 8 Ex. 
 249. 
 
 (z) Eecse River Silver Mining Co. 
 V. Smith, L. R. 4 H. L. 73-5. What 
 if proceedings were commenced in 
 an incompetent court ? On prin- 
 
 ciple there seems no reason why 
 that also should not be effective as 
 an act of rescission in pais. The 
 proposition that in equity " the 
 mere assertion of a claim unaccom- 
 panied by any act to give effect to 
 it " is not enough {Clegy v. Edmond- 
 son, 8 D. M. G. 787, 810) refers as 
 a general proposition only to sub-
 
 ELECTION MUST BE COMMUNICATED. 539 
 
 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 (a). For the pur- 
 poses of pleading the allegation that a contract was pro- 
 cured by fraud has been held to import the allegation that 
 the party on discovering it disaffirmed the contract {b). 
 "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" {(■). 
 The communication need not be formal, pro"VT.ded it is a "WTiat 
 distinct and positive rejection of the contract, not a mere ^°^""^' 
 request or inquiry, which is not enough (d). But it seems svifficient. 
 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 rescis- 
 sion complete as against rights of third persons which may 
 subsequently intervene. Especially this is the case as to 
 repudiating shares in a company. The creditors of a 
 company are entitled to rely on the register of share- 
 holders for the time being, and therefore it is not enough 
 for a shareholder to give notice to the company that he 
 claims to repudiate. A stricter rule is applied than would 
 follow from the ordinary rules of contract (e). " The rule is 
 that the repudiating shareholder must not only repudiate, 
 but also get his name removed, or commence proceedings to 
 
 stantive original rights. In the {d ) See Ashlei/s ca. 9 Eq. 263. 
 
 particular case it was a claim to [e) Kent v. Freehold Land S;c. Co. 
 
 share in certain partnership! profits. 3 Ch. 493, Mare's ca. 4 Ch. 503, 
 
 As to shares in companies, see Scottish Petroleum Co. Q. A., 2Z Ch.. 
 
 below. D. 413. But if there are several 
 
 {a) dough v. L. % N. W. Mij. Co. repudiating shareholders in a like 
 
 (Ex. Ch.), L. R. 7 Ex. 36. position, proceedings taken by one 
 
 [b) Dawes v. Harness, L. R. 10 of them and treated by agreement 
 
 C. P. 166. The earlier cases there with the company as representative 
 
 cited, especially Deposit Life As- will enure for the benefit of all : 
 
 siirance Co. v. At/scough, 6 E. & B. DaicWs ca. 4 Ch. 497 ; McNiell's 
 
 761, 26 L. J. "Q. B. 29, are not ca. 10 Eq. 503, apparently rests 
 
 wholly consistent. only on this g-round, see re\-iew of 
 
 ((■) Per Bramwell, B. Bivlch-y- cases per Baggallay, L. J. 23 Ch. 
 
 Flivm Lead Mining Co. v. Baynes, D. at p. 433. 
 L, E. 2 Ex. 326.
 
 540 THE RIGHT OF RESCISSION. 
 
 have it removed, before the winding-up ; but this rule is 
 subject to the qualification that if one repudiating share- 
 holder 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 " (./"). Where 
 the original contract was made with an agent for the other 
 party, communication of the rescission to that agent is 
 sufiicient, at all events before the principal is disclosed (g). 
 And where good grounds for rescission exist, and the 
 contract is rescinded by mutual consent on other grounds, 
 those grounds 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 nothing 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 abeady 
 done. In Wrighfs {//) case the prospectus of a company 
 contained material misrepresentations. The directors had 
 at a shareholder's request, and on other grounds, professed 
 to cancel the allotment of his shares, which they had no 
 power to do, though they had power to accept a surrender. 
 Afterwards the company was woimd 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 was effectually 
 annulled, and he could not be made a contributory even as 
 as a past member (/) . 
 Right of Inasmuch as the right of rescinding a voidable contract 
 exercise^ is alternative and co- extensive with the right of affirming 
 able by it, it f ollows that a voidable contract may be avoided by or 
 
 and 
 
 (/) Lindley, L. J. 23 Ch. D. at (0 But Wickens, V.-C. thought 
 
 p. 437. otherwise iu the court below (12 
 
 {(/) Maynard v. Eaton, 9 Ch. 414. Eq. 331) and the correctness of the 
 
 {h) 7 Ch. 55. Cp. ClougJi v. L. % reversal is doubted by Lord Justice 
 
 N. IF. Itij. Co. supra, p. 529. Lmdley (2. 142G).
 
 AVHERE RESCISSION INADMISSIBLE. 541 
 
 against the personal representatives of tlie contracting against 
 parties (k) . And further, as a contract for the sale of land [ativeT^" 
 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 (/). 
 
 B. The contract cannot be rescinded after the position No rescis- 
 of the parties has been changed so that the former state of parties can 
 things cannot be restored. bo restored 
 
 This may happen in various ways. The party who made position, 
 the misrepresentation in the first instance may have acted Where the 
 on the faith of the contract being valid in such a manner fauiulas 
 that a subsequent rescission would work irreparable injury ^*^'^*^^ P^ 
 to him. And here the rule applies, but with the important of the 
 limitation, it seems, that he must have so acted to the <^<^^*^'^°*- 
 knowledge of the party misled and without protest 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 re- 
 pudiating 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 {)>/). Or the interest taken Common 
 under the contract by the party misled may have been so ^lth°°^ 
 dealt with that he cannot give back the same thing he subject- 
 received. On this principle a shareholder cannot repudiate contract. 
 his shares if the character and constitution of the company 
 have in the meantime been altered. This was the case in 
 
 (/;) Including assignees in bank- ultimately representatives, and as 
 
 rniitcy: Load v. Green, IBM.. &W. to the defendants through more 
 
 216, 15 L. J. Ex. 113; Donaldson v. than one succession. 
 Farwell, 3 Otto (93 U. S.) 631. (w) Fev Cav. Morrison y. Universal 
 
 (l) Gresleij v. Momley, 4 De G. & Marine Insurance Co. (Ex. Ch.), L. 
 
 J. 78 : and see cases cited in next K.. 8 Ex. at p. 203 ; cji. Clouqh v. 
 
 chapter, ad fin., and Charter v. L. S; N.W. Ri/. Co. {^x. Gh..),lj.'R. 
 
 Trevehjan, 11 CI. & F. 7U, where 7 Ex. at p. 35, 
 the parties on both sides were
 
 542 
 
 THE RIGHT OF RESCISSION. 
 
 Clarice V. Dichson (n), wliere the plaintiff had taken shares 
 in a cost-hook mining company. The company was after- 
 wards registered under the Joint Stock Companies Act 
 then in force, ai^parently for the sole purpose of being 
 wound up. In the course of the winding-up the plaintiff 
 discovered that fraudulent misrepresentations 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 (o). 
 It was held that it was 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 (p). 
 As Crompton, J. put it, " Tou cannot both eat your cake 
 and return your cake" (</). A similar case on this point 
 is Western Bank of Scotland y. Addie (r). There the com- 
 pany was an unincorporated joint stock banking company 
 when the respondent took his shares in it. As in Clarke 
 V. Dickson, it was afterwards incorporated and registered 
 for the purpose of a voluntary winding-up. It was held as 
 a probable oj^inion by Lord Chelmsford, and more posi- 
 tively 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 rescinded (.s). There is some reason to think that 
 where goods or securities have been delivered under a 
 contract voidable by the buyer on the ground of fraud, 
 and before the repudiation their value has materially fallen 
 thi'ough some cause unconnected with the fraud, this is 
 such a change in the condition of the thing contracted for 
 
 («) E. B. & E. us ; 27 L. J. Q. Dickson, C C. B. N. S. 453 ; 28 L. 
 
 B. 223. J. C. P. 22o. 
 
 (o) The fact of the winding-up (fj) E. B. & E. at p. 152. 
 
 having begun before thcrepudiation (/■) L. R. 1 Sc. & D. 145. 
 
 of the shares is of itself decisive («) It would seem, but it does 
 
 according to the later cases under not clearly apjiear, that in this case 
 
 the present Companies Act : but also the misrepresentations were 
 
 here the point was hardly made. not discovered till after the com- 
 
 (p) Whicli course was accord- mencement of the winding-up. 
 ingly taken with success : Clarke v.
 
 WHERE RESCISSION INADMISSIBLE. 543 
 
 as to make restitution impossible in law (;"). The case Conduct 
 is simjiler where the party misled has himself chosen to n^ji^iej^^ 
 deal with the subject-matter of the contract, by exercising 
 acts of ownership or the like, in such a manner as to make 
 restitution impossible ; and it is of course still plainer if ho 
 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 {u). So a 
 settlement of partnership accounts or a release contained 
 in a deed of dissolution (x) cannot be disputed by one of 
 the parties if in the meantime the concern has been com- 
 pletely wound up and he has taken possession of and sold 
 the partnership assets made over to him under the arrange- 
 ment {{/) ; 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 (s). So a pur- 
 chaser cannot after taking possession maintain an action to 
 recover back his deposit {a). 
 
 The right to recover back money paid under an agree- 
 ment on the ground of mistake, failure of consideration, or 
 default of the other party 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 ground of 
 the lessor's default in executing the lease and doing repair's 
 to be done by him under the agreement (b) : nor can a 
 party recover back an excessive payment after his own 
 dealings have made it impossible to ascertain what was 
 really due (c). 
 
 {t) TFacMen.Y.mocl-c>/,iQ.B.T>. {a) Blackhimi v. Smith, 2 Ex. 
 
 G78, 683, per Thesiger, L.J. 783 ; 18 L. J. Ex. 187 ; but it was 
 
 (?<) Vigers v. Fike, 8 CI. & F. 562, also held that apart from this the 
 
 650. objection came too late under the 
 
 {x) Urquhart v. Maephcrsoi/ , 3 conditions of sale in the ijarticular 
 
 App. Ca. 831. case. 
 
 {>/) Skilhcck V. miton, 2 Eq. 587. {b) Hunt v. Silk, 5 East 449. 
 
 [z) Sheffield Nickel Co. v. Umvi/i, (c) Freeman v. Jewries, L. R. 4 
 
 2 Q. B. D. 214. Ex. 189, 197.
 
 544 THE RIGHT OF RESCISSIOX. 
 
 No rescis- C. The contract cannot be rescinded after third persons 
 against have acquired rights under it for value, 
 innocent The present rule is altogether, as the last one is to some 
 
 chasers for extent, a corollary from the main principle that a contract 
 value. 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 conve- 
 nience " that where 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 " {d). 
 Fraudu- Thus when a sale of goods is procured by fraud, the 
 
 property in the goods is transferred by the contract {e), 
 subject as between the seller and the buyer to be revested 
 by the seller exercising his option to rescind when he dis- 
 covers the fraud. A purchaser in good faith from the 
 fraudulent buyer acquires an indefeasible title (/) . And a 
 person who takes with notice of the fraud is a lawful pos- 
 sessor as against third persons, 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 (g) . 
 
 The same rule holds good as to possession or other partial 
 interests in property. A. sells goods to B., but resumes the 
 possession, by arrangement with B., as a security for the 
 price. Afterwards B. induces A. to re-deliver possession 
 of the goods to him by a fraudulent misrepresentation, and 
 thereupon pledges the goods to C, who advances money 
 
 {d) Bahcock V. Lawaon, 4 Q. B. D. 919 ; 20 L. J. C. P. 167 ; Stevenson 
 
 at p. 400. V. Xewnham (Ex. Ch.), 13 C. B. 
 
 (c) Load V. Green, 15 M. & W. 285, 303; 22 L. J. C. P. 110, 115. 
 
 216; 15 L. J. Ex. 113; where it The statute 24 & 25 Vict. c. 96, 
 
 was hold that a fraudulent buyer s. 100, which provides for restitu- 
 
 bocominfi' bankrupt had not the tion to the true owner of chattels 
 
 goods in his order and disposition obtained by false pretences, &c., 
 
 with the consent of the true owner ; after conAdction of the offender, 
 
 for the vendors became the true has been construed in accordance 
 
 owners only when they elected to with this principle : Moyce v. Ncw- 
 
 rcscind and demanded the goods iiigion, 4 Q. B. D. 32. 
 from the assignees. (j/) Stevenson v. Xcwnhnm, sec last 
 
 (/) White V. Garden, 10 C. B. note.
 
 RIGHTS OF THIRD PERSONS. 545 
 
 upon (lioni 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. (//). 
 
 It must be carefully obsei^ed that a fraudulent pos- Distinc- 
 sessor cannot give a better title than he has himself, even thero^is*no 
 to an innocent pm^chaser, if the possession has not been contract, 
 obtained under a contract with the true owner, but by are moreiy 
 mere false pretences as to some matter of fact concerning ?^*?|"*^^ 
 the true owner's contract with a third person. To put a lent prc- 
 simple case, A. sells goods to B. and desires B. to send for '''^*^*^^- 
 them. C. obtains the goods from A. by falsely represent- 
 ing himself as B.'s servant : now C. acquires neither pro- 
 perty 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 0. gets goods from A. by falsely representing 
 himself as a member of the firm and authorized to act for 
 them (?), or if B., a person of no credit, gets goods from A. 
 by trading under a name and address closely resembling 
 those of C, who is known to A. as a respectable trader {k). 
 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-pm'chaser ; 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 of the 
 
 (/;) Fcasc V. Gkahcc, L. R. 1 P.C. (;) JIardman v. Booth, 1 H. & C. 
 
 219. The dealings were in fact with 803; 32 L. J. Ex. 105 ; HoWvns y. 
 
 the bill of lading ; but as this com- loH-lvr, L. R. 7 H. L. 757, 795. 
 
 pletely represented the goods for (/r) Cunchj v. Lindsatj, 3 App. Ca. 
 
 the purposes of the case the state- 459. Otherwise where the fraud 
 
 ment in the text is simplified in stops short of personation, and is 
 
 order to bring out the general only a false representation of the 
 
 principle more clearly. A later party's condition and means: Attcn- 
 
 case of the same kind is Bahcock v. borough v. St. Katharine' s Bock Co. 
 
 lawson (C. A.), 5 Q. B. D. 284. (C. A.), 3 C. P. D. 450. 
 
 P. N N
 
 546 THE RIGHT OF RESCISSION. 
 
 Exchequer Chamber in Kingaford v. Merry (/), though 
 the case was a little complicated by the special considera- 
 tion of the effect of delivery orders or warrants as " indicia 
 of title." 
 Share- The decision of the House of Lords in Oalie^ v. Tur- 
 
 can't re- qucuid {m) , which settled that a shareholder in a company 
 pudiate cannot repudiate his shares after the commencement of a 
 ■winding- winding-up, proceeded to a considerable extent upon the 
 up: Oakes language of the Companies Act, 1862, in the sections 
 quand. defining who shall be contributories. But the broad prin- 
 ciples of the decision, or if we prefer to say so, of the Act 
 as interpreted by it, are these. The rights of the com- 
 pany'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 obligations under their 
 contracts with the company, including the duty to con- 
 tribute 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 value 
 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 (»). 
 
 It is now settled law that the same rule applies to joint- 
 
 {!) 1 H. & N. 503 ; 26 L. J. Ex. 2 Sc. & D. 29. In ITaU v. Old 
 
 83 (sec per Erie, J. at p. 88), rcvg. Talargoch Lead M'uihicj Co., 3 Ch. 
 
 s. c. in Court, below ; llEx. 577;25 D. 749, an action for rescission 
 
 L. J. Ex. 166. and indemnity commenced by a 
 
 {in) L. R. 2 H. L. 325. This shareholder after a resolution for 
 
 principle applies to a voluntary as winding-up but in ignorance of it 
 
 well as a compulsory winding-up : was allowed to proceed. Here 
 
 Stone V. dity and County Bank (C. however relief was claimed against 
 
 A.), 3 C. P. D. 282. the directors personally as well as 
 
 («) Watcrlioitse v. Jamicso/i, L. R. the company.
 
 LAPSE OF TIME. 547 
 
 stock companies not under the Companies Acts, And the 
 date after which it is too late to repudiate shares may be 
 earlier than the commencement of the winding-up. Pro- 
 bably the actual insolvency of the company fixes this date ; 
 at all events a shareholder cannot repudiate after the 
 directors have convened an extraordinary meeting to con- 
 sider whether the company shall be wound up. For thus, 
 " by holding out to the body of creditors, the prospect of a 
 voluntary winding-up," the directors, who are the share- 
 holder's agents as long as he remains a shareholder, stay 
 the hands of the creditors from compulsory proceedings (o) . 
 And the rule holds even if there are no unpaid creditors. 
 " The doctrine is, that after the company is wound up it 
 ceases to exist, and rescission is impossible " (^j). 
 
 On the other hand, persons who have taken any gra- Persons 
 tuitous benefit under a fraudulent transaction, though volunteers 
 themselves ignorant of the fraud, are in no better position un<ier 
 than the original contriver of it. Thus where a creditor lent con- 
 was induced to give a release to a surety by a fraud prac- J^qu^i^ 
 tised on him by the principal debtor, of which the innocent, 
 
 , . I 1 ji 1 . , , . no better 
 
 surety was ignorant, and the surety gave no consideration off than 
 
 for the release, it was held that this release might be original 
 
 . . • 1 f 1 defi-audei'. 
 
 disaffirmed by the creditor on discovering the fraud. 
 
 But third persons who on the faith of the release being 
 
 valid had advanced money to the surety to meet other 
 
 liabilities would be entitled to assert a paramount 
 
 claim {q). 
 
 D. The contract must be rescinded within a reasonable Rescission 
 time, that is, before the lapse of a time after the true state within 
 of things is known, so long that under the cii'cumstances reasonable 
 
 ° '^ time. 
 
 (o) Tmnmt v. City of Glasgow vide for the payment of the third 
 
 Bank, 4 App. Ca. 615. persons in qviestion, Johns. 171, 
 
 {p) Burgess's case, 15 Ch. D. 507, bnt the Court of Appeal varied the 
 
 509 (Jessei, M. E,.). decree by making it simply without 
 
 [q) Scholcjield v. Tcmpler, Johns. prejudice to thcu- rights, 4 De G. 
 
 155, 165, 4 De G. & J. 429. The & J. 435. 
 Court below endeavoured to pro- 
 
 N X 2
 
 548 
 
 THE RIGHT OF RESCISSION. 
 
 Explana- 
 tion of 
 this : the 
 import- 
 ance of 
 time is not 
 per se, but 
 as evi- 
 dence of 
 acquies- 
 cence. 
 
 Authori- 
 ties in 
 eqmty. 
 
 of the particular case the otlier party may fairly infer that 
 the right of rescission is waived. 
 
 It is believed that the statement of the rule in some 
 such form as this will reconcile the substance and language 
 of all the leading authorities. On the one hand it is often 
 said that the election must be made within a reasonable 
 time, while on the other hand it has several times been 
 explained that lapse of time as such has no positive effect 
 of its own. The Court is specially cautious in entertaining 
 charges of fraud or misrepresentation brought forward 
 after a long interval of time ; it will anxiously weigh the 
 circumstances, and consider what evidence may have been 
 lost in consequence of the time that has elapsed (;■). But 
 time alone is no bar to the right of rescinding a voidable 
 transaction ; and the House of Lords in one case set aside 
 a purchase of "a principal's estate by his agent in another 
 name after the lapse of more than half a century, the facts 
 having remained unknown to the principal and his repre- 
 sentatives for thirty-seven years (.s). In a later case 
 the Lord Justice Turner stated expressly that " the two 
 propositions of a bar by length of time and by acquies- 
 cence are not distinct propositions." Length of time is 
 evidence of acquiescence, but only if there is knowledge 
 of the facts, for a man cannot be said to have acquiesced 
 in what he did not know (/). Lord Campbell slightly 
 qualified this by adding, that although it is for the party 
 relying on acquiescence to prove the facts from which 
 consent is to be inferred, " it is easy to conceive cases in 
 which, from great lapse of time, such facts might and 
 ought to be presumed" (u). 
 
 {)•) Cp. Briffht V. Lcfjcrlon, 2 D. 
 r. J. 606, 617. 
 
 (5) Charter v. Trevchjan, 11 CI. & 
 r. 714, 740. 
 
 {t) Life Association of Scotland v. 
 Siildal, 3 D. F. J. 58, 72, 74 : on 
 the point that there cannot be 
 acquiescence without knowledg-e, 
 cp. Lhiijd V. Attwood, 3 Do G. & J. 
 CM, G.jO ; per Alderson, B. load v. 
 
 Green, 15 M. & "W. at p. 217 : "A 
 man cannot perm it who does not 
 know that ho has a right to re- 
 fuse :" and per Jessel, M. K.. 1 Ch. 
 D. 628. 
 
 («) 3 D. F. J. at p. 77. The case 
 was one not of rescinding a contract 
 but of a breach of trust ; but the 
 principles arc the same.
 
 ACQUIESCENCE. 549 
 
 The rule has been laid down and acted upon by the 
 Judicial Committee in this form : " In order that the 
 remedy should be lost by laclics or delay, it is, if not 
 universally, at all events ordinarily . . necessary that 
 there should be sufficient knowledge of the facts con- 
 stituting the title to relief " (.?•). 
 
 To the same effect it has been said in the Supreme 
 Court of the United States : " Acquiescence and waiver 
 are always questions of fact. There can be neither with- 
 out knowledge." And the knowledge must be actual, 
 not merely possible or potential : " the wrongdoer cannot 
 make extreme vigilance and promptitude conditions of 
 rescission " (//). 
 
 Acquiescence need not be manifested by any positive 
 act ; the question is, whether there is sufficient evidence 
 either from lapse of time or from other circumstances of 
 " a fixed, deliberate and unbiassed determination that the 
 transaction should not be impeached " (;:). In estimating 
 the weight to be given to length of time as evidence of 
 acquiescence the nature of the property concerned is 
 material (a). And other special circumstances may 
 prevent lapse of time even after everything is known 
 from being evidence of acquiescence ; as when nothing is 
 done for some years because the other party's affairs are 
 in such a condition that proceedings against him would be 
 fruitless {h) . 
 
 If a party entitled to avoid a transaction has precluded 
 himself by his own acts or acquiescence from disputing it 
 
 (.(■) Lindsay Petroleum Co .y . Hurcl, More generally, the only proper 
 
 L. R. 5 P. C. 221, 241. meaning of acquiescence is qiii- 
 
 (y) Pence v. Langdon, 9 Otto (99 escence imder such circumstances 
 
 U. S.) at p. 581. that assent may be reasonably 
 
 (z) Per Turner, L. J. Wright v. inferred from it: per Cur. in De 
 
 Vandcrplank, 8 D. M. G. 133, 147. Bussche v. Alt (C. A.), 8 Ch. D. at 
 
 The epithets, however, are more p. 314. 
 specially appropriate to the parti- {a) 8 D. M. G. at p. loO. 
 
 cular groiuid of rescission (undue [b) Scliolcjicldy, Temjjlcr, iDeG. 
 
 influence) then before the Court. & J. 429.
 
 550 
 
 THE RIGHT OF RESCISSION. 
 
 Special 
 oblifj-ation 
 of dili- 
 gence in 
 case of 
 share- 
 holders. 
 
 Same 
 general 
 rule at 
 law, per 
 Cur. in 
 Ex. Ch. 
 
 in his lifetime, his representatives cannot come forward to 
 dispute it afterwards (c). 
 
 It is said that holders of shares in companies are under 
 a special obligation of diligence as to making their 
 election, but the dicta relate chiefly if not wholly to 
 objections apparent on the face of the memorandum or 
 articles of association. With the contents of these a share- 
 holder is bound to make himself acquainted, and must 
 be deemed to become acquainted, when his shares are 
 allotted (d). But objections which can be taken upon 
 these must proceed on the groimd, not of fraud or mis- 
 representation as such, but of the undertaking in which 
 shares are allotted being substantially a different thing 
 from that which the prospectus described and in Avhich 
 the applicant offered to take shares. Nor are we aware of 
 any case in which the rule has been applied to a repudia- 
 tion of shares declared before a winding-up and on the 
 ground of fraud or misrepresentation not apparent on the 
 articles. Still it seems quite reasonable to hold that in 
 the case of a shareholder's contract lapse of time without 
 repudiation is of greater importance as evidence of assent 
 than in most other cases. 
 
 The authorities thus far cited have been from courts of 
 equity. The same general principle was laid down in 
 the Exchequer Chamber in 1871. " We think the party 
 defrauded may keep the question open so long as he does 
 
 nothing to affirm the contract In such cases the 
 
 question is, has the person on whom the fraud was 
 practised, having notice of the fraud, elected not to avoid 
 the contract? or has he elected to avoid it? or has he 
 made no election ? We thick that fo long as he has made 
 no election he retains the right to determine it either way, 
 subject to this, that if in the interval whilst he is deliber- 
 
 {c) SJcottuwe V. iniliams, 3 D. F. 
 J. 535, 511. 
 
 {(l) Central Rij. Co. of Venezuela 
 
 V. Kisch, L. E. 2 H. L. at p. 125 ; 
 Oakes v. Turqnand, ib. at p. 352 ; 
 and see Ch. VIII. p. 433, above.
 
 UNFOUNDED CHARGES OF FRAUD. 551 
 
 ating an innocent third party has acquired an interest 
 in the property, or if in consequence of his delay the 
 position even of the wrongdoer is affected, it will preclude 
 him from exercising his riglit to rescind. And lapse of 
 time without rescinding will furnish evidence that he has 
 determined to affirm the contract, and when the lapse of 
 time is great it probably would in practice be treated 
 as conclusive evidence to show that he has so deter- 
 mined {c). 
 
 The French law treats the right of having a contract Fixed 
 judicially set aside for fraud, &c., as a substantive right of {imitation 
 action, and limits a fixed period of ten years, running byFr. 
 from the discovery of the truth, within which it must be 
 exercised (/). 
 
 One or two points remain to be mentioned, which we Unfound- 
 have reserved to the last as being matter of procedure, but of fj-aiuf^^ 
 which depend upon general principles. Courts of justice discour- 
 are anxious to discover and discourage fraud in every parties 
 
 shape, but they are no less anxious to discoura^-e and niakmg 
 
 111 Pill *^^^'^^ ™"^* 
 
 rebuke loose or unfounded charges of fraud and personal pay costs. 
 
 misconduct. The facts relied on as establishing a case of 
 fraud must bo distinctly alleged and proved (//). Where 
 such charges are made and not proved, this will not pre- 
 vent the party making them from having any relief to 
 which he may otherwise appear to be entitled, but he must 
 pay the costs occasioned by the unfounded charges (//). 
 And in one case, where the plaintiff made voluminous and 
 elaborate charges of fraud and conspiracy, which proved 
 
 (c) Per Cur. dough v. i. c^- X. JF. {//) In equity pleading a charge 
 
 lit/. Co. L. R. 7 Ex. at p. 34, of fraud in general terms would not 
 
 repeated in Morrison v. Universal support a bill on demurrer: Gilbert 
 
 Marine Insurance Co. 1j. R. 8 Ex. at v. Lewis, 1 D. J. S. at p. 49, per 
 
 p. 203, and cited by Lord Blackburn Lord Westbury. 
 
 in Erlangcr v. New Sombrero PJios- [h) IliUiard v. Eiffe, L. R. 7 H. 
 
 jo/<a^c Co. 3 App. Ca. at p. 1277. See L. 39, 51, 52; London Chartered 
 
 the remarks on delay and acquies- Bank of Australia v. Lcmpricre, L. 
 
 cence in the several judgments in R. 4 P. C. at p. 597 ; Clinch v. 
 
 that case. Financial Corporation, 5 Eq. at p. 
 
 (/) Code Civ. 1304. 483; per Lord Cairns, Thomson y. 
 
 Eastn-Qod, 2 App. Ca. at p. 243.
 
 652 
 
 THE RIGHT OF RESCISSION. 
 
 Indepen- 
 dent juris- 
 diction of 
 equity to 
 cancel 
 instru- 
 ments for 
 fraud, &c. 
 
 to be unfoimdecl, the Court of Appeal not only made him 
 pay the costs of that part of the case, but refused to allow 
 him the costs even of the part on which he succeeded. It 
 was held that he had so mixed up unfounded and reckless 
 aspersions upon character with the rest of the suit as to 
 forfeit his title to the costs which he otherwise would have 
 been entitled to receive (/). 
 
 The special jurisdiction of courts of equity to order the 
 cancellation of an instrument obtained by fraud or mis- 
 representation is not aif ected by the probability or practical 
 certainty that the plaintiff in equity would have a good 
 defence to an action on the instrument, nor is it the less 
 to be exercised even if the instrument is already in his 
 possession. He is entitled not only not to have the con- 
 tract enforced against him, but to have it judicially 
 annulled (k). 
 
 (i) Parker v. McKenna, 10 Ch. 
 96, 123, 125. 
 
 {k) London and Provincial Insur- 
 ance Co. V. Seymour, 17 Eq. 85; and 
 see Hoare v. Bremridc/e, 8 Ch. 22, 
 there explained and distinguished. 
 Therefore a defendant sued on an 
 instrument which he alleges to be 
 voidable may properly add to his 
 defence a counter-claim for the 
 cancellation of the instrmnent. It 
 may also be proper to ask for a 
 
 transfer to the Chancery Division 
 if the action is in the Queen's 
 Bench Division, but this is not a 
 matter of course. See Storey v. 
 Waddle (C. A.), 4 Q. B. D. 289. 
 Where, conversely, a purchaser 
 sues for the return of his deposit, 
 and the vendor counter-claims for 
 speciiic performance, a transfer to 
 the Oh . D . ^yill generally be ordered : 
 London Land Co. v. Harris, 13 Q. B. 
 D. 540.
 
 ( 553 ) 
 
 CHAPTER XI. 
 
 Duress and Undue Influence. 
 
 If the consent of one party to a contract is obtained by Contract 
 the other under such circumstances that the consent is not consent'^ ^ 
 free, the contract is voidable at the option of the party ^^t free, 
 whose consent is so obtained. It is quite clear that it is 
 not merely void (a). The transaction might indeed be 
 void if the party were under actual physical constraint, as 
 if his hand were forcibly guided to sign his name ; or 
 perhaps if he were so prostrated by fear as not to know 
 what he was doing (b) ; but this would be not because 
 his consent was not free, but because there was no consent 
 at all. 
 
 What then are the circumstances which are held by 
 English courts to exclude freedom of consent ? The treat- 
 ment of this question has at common law been singularly 
 narrow and in equity singularly comprehensive. 
 
 I. Duress at Common Law. 
 
 At common law the coercion which will be a sufficient The com- 
 cause for avoiding a contract may consist in duress or ^o^^j-inc 
 menace ; that is, either in actual compulsion or in the of Duress. 
 threat of it. In modern books the term duress is used to 
 include both species. It is said that there must be some 
 threatening of life or member, or of imprisonment, or some 
 imprisonment or beating itself. Threatening to destroy 
 or detain, or actually detaining property, does not amount 
 
 («) Co. 2 Inst. 482, and 2nd reso- (b) Sa^-igny, Syst. 3. 109. But 
 
 lutionin Whelpdale' s ca,. 5 Rep. 119. the analogy of JIatthcws v. Baxter, 
 
 L. R. 8 Ex. 132, is against this.
 
 DURESS AND UNDUE INFLUENCE. 
 
 to duress (c). And this applies to agreements not under 
 seal as well as to deeds {d). The reason appears to be 
 that the detainer is a wrong of itself, for which there is 
 an appropriate remedy. Should the party choose to make 
 terms instead of pursuing his rights (at all events when 
 there is nothing to prevent him from so doing), he cannot 
 afterwards turn round and complain that the terms were 
 forced iipon him (e). " It must be a threatening, beating, 
 or imprisonment of the party himself that doth make the 
 deed, or his wife" (c) or (it seems) parent or child (/). 
 In a case And a threat of imprisonment is not duress unless the im- 
 the™hreat prisonment would be unlawful. This is illustrated by two 
 rather curious modern cases, in both of which the party's 
 consent was determined by the fear of confinement in a 
 lunatic asylum. In Cummiug v. Lice (g) 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 Coiu-t 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 herself, 
 and if not, the agreement was obtained by the fear of a 
 merely unlawful imprisonment and therefore voidable on 
 the ground of 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 
 
 (c) Shepp. Touch. Gl. 
 
 {d ) AtU'c V. Backhouse, 3 M. & W. 
 633; Skeate v. lieulc, 11 A. & E. 
 983. 
 
 (e) See SilUmcm v. United Statcn, 
 
 11 Otto (101 U. S.) 4G5. 
 
 (/) ]io. Ab. 1. 687, pi. 5; Bac. 
 Ab. Z»«/rw(B). 
 
 {g) 11 Q. B. 112, 17 L.J. Q. B. 
 105.
 
 PAYMENTS UNDER C6MPULSI0N. 655 
 
 same evils that she feared for herself. lu Biffin v. 
 Bignell (Ji), on the other hand, the defendant was sued 
 for necessaries supplied to his wife. She had been in a 
 lunatic asylum under treatment for delirium tremens, and 
 on her discharge the husband promised her 12.s\ a week to 
 live apart from him, adding that if she would not ho would 
 send her to another asylum. The wife was accordingly 
 living apart from the husband under this agreement. It 
 was held that her consent to it was not obtained by duress, 
 for under these circumstances " the threat, if any, was not 
 of anything contrary to law, at least not so to be under- 
 stood": consequently the presumption of authority to 
 jjledge the husband's credit was effectually excluded, and 
 the plaintiff could not recover (/). 
 
 The narrowness of the common law doctrines above Money 
 stated is considerably mitigated in practice, for when ch-cum^ 
 money has been paid under circumstances of practical stances of 
 compulsion, though not amounting to duress, it can sion re- 
 generally be recovered back. This is so when the pay- ^overablo 
 ment is made to obtain the possession of property wrong- 
 fully detained (/<•) ; and the property need not be goods for 
 which the owner has an immediate pressing necessity, nor 
 need the claim of the party detaining them be manifestly 
 groundless, to make the payment for this purpose involun- 
 tary in contemplation of law (/). So it is where excessive 
 fees are taken under colour of office, though it be usual to 
 pay them {m) ; or where an excessive charge for the per- 
 formance of a duty is paid under protest {n). The person 
 who actually receives the money may properly be sued, 
 though he receive it only as an agent (o). The case of 
 
 (/() 7 H. & N. 877, 31 L. J. Ex. (/) Shaw v. Woodcock, 7 B. & C. 
 
 189. 73. 
 
 (J) Qu. wlietlier in any case he {i)i) Dew v. Parsons, 2 B. & Aid. 
 
 conkl have recovered without show- 562; Steele y. TFilliaiits, S Ex. Q25, 
 
 iug- that the wife had repudiated 22 L. J. Ex. 225. 
 
 the aiTaugement. («) Parker v. G. W. Ry. Co. 7 M. 
 
 (/.•) Wakefcld V. Newhon, 6 Q. B. & G-r. 253, 292. And see other 
 
 276, 280, 13 L. J. Q. B. 258 ; Green authorities collected in notes to 
 
 V. Duckett, 11 Q. B. D. 275. Marriott v. Hampton, 2 Sni. L. 0. 
 
 (o) Steele v. Williams, supra.
 
 556 
 
 DURESS AKD UNDUE INFLUENCE. 
 
 one creditor exacting a fraudulent preference from a debtor 
 
 as the price of liis assent to a composition [p) is to a cei-tain 
 
 But on the extent analogous. But in all these cases the foundation 
 
 not of o^ ^^® right to recover back the money is not the involun- 
 
 coercion in tary character of the payment in itself, but the fact that 
 
 of failui-e the party receiving it did no more than he was bound to 
 
 ^h^^^I- do already, or something for which it was unlawful to take 
 sideration. _ -^ ' o _ 
 
 money if he chose to do it, though he had his choice in 
 the first instance. Such payments are thus regarded as 
 made without consideration. The legal effect of their 
 being practically involuntary, though important, comes in 
 the second place ; the circumstances explain and excuse the 
 conduct of the party making the paj^ment. Similarly in the 
 kindred case of a payment under mistake the actual founda- 
 tion 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 con- 
 tract 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. 
 
 Tlie 
 
 equitable 
 doctrine 
 of Undue 
 Influence. 
 
 II. TJie cqititahle doctrine of Undue Influence. 
 
 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 
 
 {p) Atkinson v. Dmhy, 6 H. &N. 
 778, in Ex. Ch. 7 ih. 034, 31 L. J. 
 Ex. 362. Snpra, Ch. VI., p. 336. 
 
 iq) Lew V. Tarso/is, 2 B. & Aid. 
 562.
 
 DOCTRINE OF UNDUE INFLUENCE. Oi)7 
 
 way of gift. The question to be decided in each case is 
 whether the party was a free and voluntary agent {>•) . 
 
 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 transaction, and all the cii'cumstances 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. 
 
 " The principle applies to every case where influence is Gene- 
 acquired and abused, where confidence is reposed and theprin- 
 betrayed " (s). And if it is once established that a person ciple. _ 
 
 Exorcise of 
 
 who stands in a position of commanding influence towards influenco 
 another has obtained an advantage from him while in that f^^*^ °'^*, 
 
 . . "^ proved 
 
 position, it will be presumed, in the absence of rebutting in detail 
 
 proof, that the advantage was obtained by means of that jatlonof' 
 
 influence : and it is not necessary for the party complain- liabitual 
 
 ing to show the precise manner in which the influence was esta- 
 
 exerted. Indeed one chief object of the rules which will ^^i^hed. 
 
 presently be discussed is to prevent those who unduly 
 
 obtain benefits from persons under their dominion from 
 
 making themselves safe by the secrecy of the particular 
 
 transaction {f). It is very possible that the circumstances 
 
 would in many such cases, if they could be fully brought 
 
 out, amount to proof of actual compulsion or fraud; so 
 
 that it may perhaps be said that undue influence, as the 
 
 term is used in courts of equity, 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 (?^). Griven a 
 
 {)•) Williams V. Baijleij, L. R. 1 {t) See Bod v. Bennett, 4 My. Sc 
 
 H. L. 200, 210. Cr. at p. 277. 
 
 (.«) Per Loixl Kingsdown, Smith {/i) In Boyse v. Itossborough, G H. 
 
 V. ICaij, 7 H. L. C. at p. 779. L. C. at p. 48, it is said that,
 
 ODl 
 
 DURESS AND UNDUE INFLUENCE. 
 
 General 
 
 influence 
 
 presumed 
 
 from 
 
 certain 
 
 relations. 
 
 position of general and habitual influence, its exercise in 
 the particular case is presumed. 
 
 But again, this habitual influence may itself be pre- 
 sumed to exist as a natural consequence 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 aiiaii'S " and influence exerted " in the 
 particular transaction complained of {.r). 
 
 Persons may therefore not only be proved by direct evi- 
 dence of conduct, but presumed by reason of standing in 
 any of these susj)ected 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 given with due freedom and deliberation. They must 
 " take upon themselves the whole proof that the thing is 
 righteous "(//) . We shall here observe that this, like 
 several other of the peculiar rules of equity, is not a rule 
 of substantive law but a rule of evidence. This is well 
 shown in the arrangement of the Anglo-Indian codes. We 
 find the rule of law laid down in the Contract Act (see 
 Note 0.). But the rule of evidence finds its place, not 
 here, but in the Evidence Act (I. of 1872, s. Ill) : — 
 
 " Where there is a question as to the good faith of 
 a transaction between parties, one of whom stands to 
 the other in a position of active confidence, the burden 
 of proving the good faith of the transaction is on the 
 party who is in a position of active confidence." 
 
 taking the words in a -wide sense, 
 all undue influence may be resolved 
 into coercion and fraud : but the 
 case there considered is that of a 
 ■wiU, in which undue influence has 
 a more restricted meaning than in 
 transactions iiiler vivos : see note (/<), 
 p. iJGO, infra. 
 
 (.r) Per Lord Kingsdown, Smith 
 V. iffy, 7 H. L. C. 750, 779. 
 
 (//) Gibson V. Jei/cs, 6 Ves. 266, 
 276. The like burden of proof is 
 cast upon those who take any bene- 
 fit under a will which they have 
 themselves been instrumental in 
 preparing or obtaining : Fulton v. 
 Andrew, L. R. 7 H. L. 448, 472.
 
 PRESUMPTION FROM CONFIDENTIAL RELATIONS. 559 
 
 It may be doubted whether the inconvenience of thus 
 separating rules which are so closely connected in practice 
 is not too heavy a price to pay for the illustration of their 
 distinct natiu-o : but the value of the illustration in itself 
 is unaffected by this. 
 
 ' ' Wliercvcr two persons stand in such a relation that, while it con- 
 tinues, confidence is necessarily reposed by one, and the influence which 
 natiu'ally 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 availing himself of 
 his position wQl not be permitted to retain the advantage, although the 
 transaction could not have been impeached if no such confidential relation 
 had existed" (z). 
 
 " Nothing can be more important to maintain than the 
 jurisdiction, long asserted and upheld by the Court, in 
 watching over and protecting those who are placed in a 
 situation to requii^e protection as against acts of those who 
 have influence over them, by which acts the person having 
 such influence obtains any benefit to himself. In such cases 
 the Court has always regarded the transaction with 
 jealousy" {a) — a jealousy almost invincible, in Lord 
 Eldon's words {b). 
 
 ' ' In equity persons standing in certain relations to one another, such 
 as parent and child (r), man and wife {d), doctor and patient (c), attorney 
 and client (/), confessor and penitent, guardian and ward ((7), are subject 
 
 (z) Per Lord Chelmsford, Tate v. as to persons living together as 
 
 Williamso)/, 2 Ch. 55, 61. man and wife though not lawfully 
 
 (a) Lord Hatherley, Turner v. man-ied. In all these cases the 
 
 Collins, 7 Ch. 329, 338. burden of proof was held to be on 
 
 {b) Hatchx. Hatch, QYes.2itT^.2S)Q>. the man (as holding under such 
 
 {c) Archer v. Hudson, 7 Beav. circumstances a position of in- 
 
 551 ; Turner v. CoUius, 7 Ch. 329. flueuce) to support the transaction. 
 
 (rf) Lord Hardwicke's remarks Itmaynotbe sohoweverinacaseof 
 
 in Grigbij v. Cox, 1 Ves. sen. 517 mere illicit intercourse : see Farmer 
 
 (though not the decision, for it was v. Farmer, 1 H. L. C. 724, 752. 
 
 not a gift but a purchase, and ap- {e) Dent v. Bennett, 4 My. & Cr. 
 
 parently there was no evidence to 269; Ahearne v. Hogan, Dru. 310; 
 
 bear out the charge of collusion), s. v. Blacldc v. Clark, 15 Beav. at 
 
 and the decision in Kedby v. Nedby, p. 603. 
 
 5 De G. & Sm. 377, aeeva. contra ; (/) Gibson v. Jeyes, 6 Ves. 266; 
 
 but see Cobbett v. Brock, 20 Beav. Holman v. Loynes, 4 D. M. G. 270 ; 
 
 624 ; Fage v. Home, 11 Beav. 227 ; Gresley v. Mousley, 4 De G. & J. 
 
 showing that there is a fiduciary 78, 94. 
 
 relation between persons engaged {g) Hatch v. Hatch, 9 Ves. 297; 
 
 to be manied ; and Coulsony. Alii- ' Maitland v. Frving, 15 Sim. 437. 
 son, 2 D. F. .T. 521, 524, the like
 
 560 
 
 DURESS AND UNDUE INFLUENCE. 
 
 to certain presumptions when transactions between tliem are brought in 
 question ; and if a gift or contract made in favour of him who holds the 
 position of influence is impeached by him who is subject to that influence, 
 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 natui'al influence of the stronger, or the 
 inexperienced overreached by him of more mature intelligence (h). 
 
 Rules in 
 Hunter v 
 Atkins. 
 
 Lord Brougham in Hunter v. Atkins ii) made tlie 
 following distinctions between the various kinds of rela- 
 tions as affecting the burden of proof in respect of the 
 validity of the act, 
 
 (a). If it is not shown that special confidence was 
 reposed in the person taking the benefit, specific proof is 
 required of incapacity, fraud, [or compulsion] vitiating 
 the particular transaction. 
 
 (b) . If a confidential relation is proved (not being one 
 of those next mentioned) proof is required of circumstances 
 making it likely that some advantage was taken of such 
 relation [though not of the precise circumstances under 
 which the act impeached took place]. 
 
 (c). But if the party taking the benefit stands towards 
 the other " in any of the known relations of guardian and 
 ward, attorney and client, trustee and cestui que trust, &c. 
 [this ^x. is imjDortant, as will immediately appear], then in 
 order to support the [act] he ought to show that no such 
 advantage was taken . . . the proof lies upon him that he 
 
 (/() Per Lord Penzance, Tarfitt v. 
 Laidess, L. R. 2 P. & D. 462, 468. 
 It is to be noted that this does not 
 apply to wills, as to which undue 
 iniiuence is never presumed : ib. ; 
 Boyse V. liossboroi/ffh, 6 H. L. C. 2, 
 49 ; Hlnchonv. Wcatherill, 5D.M. G. 
 301, 311, 313 : though a disposition 
 by will may be set aside as well as 
 an act itUer vivos when undue in- 
 fluence is actually proved : but 
 then, it seems, the influence must be 
 such as to ' ' overpower the volition 
 without convincing the judgment : ' ' 
 Jlall V. Hall, L. K. 1 P. & D. 482. 
 Hce Walker v. timith, 29 Beav. 394, 
 where between the same ixirties 
 
 gifts by will were supported and a 
 gift mtcr vivos set aside. Lord 
 Penzance has now added to the list 
 of suspected relations that of pro- 
 moters of a comp any to the company 
 which is their creature : £rlaiiger v. 
 Xcw Sombrero F/iosp/iatc Co., 3 App. 
 Ca. at p. 1230. But is not jt;rr«o«a7 
 confidence essential to make the 
 present doctrine applicable ? And 
 has any case gone the length of 
 casting on a promoter the biu'den of 
 proving in the first instance that a 
 contract between him and the com- 
 pany was a fair one? 
 (j) 3 My. &K. 113, 134.
 
 BURDEN OF PROOF. 5G1 
 
 has dealt with the other party, the client, ward, &c., 
 exactly as a stranger would have done." 
 
 If it ■ is asked, what are the classes of persons who fall 
 within this last description, the answer is, that as the Court 
 of Chancery has never ventured to define fraud (A-), so it 
 has refused to commit itself to any enumeration of the 
 description of persons against whom the jurisdiction now 
 in question ought to be most freely exercised. The cases 
 in which it has been actually exercised are considered as 
 merely instances of the application of a principle " apply- 
 ing to all the variety of relations in which dominion may 
 be exercised by one person over another" (/). Therefore 
 Lord Brougham's distinction between the cases in which 
 influence must be proved, and those in which it is pre- 
 sumed, affords no certain guide : the ^c. of his enumeration 
 is a term of indefinite extent. At most it can be said that 
 as to certain well-known relations the Com't is now bound 
 by authority to presume influence, and that as to any 
 other relation which the Com-t judges to be of a confiden- 
 tial kind it is free to presume that an influence founded on 
 the confidence exists, or to require such proof thereof as it 
 may think fit. 
 
 Another general proposition of much importance was Wider rule 
 laid down by Lord Eomilly in Coohe v. Lamottc {m), and tonv?° 
 aci-ain soon afterwards in Iloiihton v. Iloqhfon (u), which, if Hoghton; 
 it could be relied on to its full extent, would considerably tenable. 
 modify the doctrine of Hunter v. Atkins. This proposition 
 is in substance as follows : — 
 
 In every case where " one person obtains, by voluntary 
 
 (k) 10 Ves. 306; 1 D. M. G. 691. I'esprit des donatem-s, vos arrets 
 
 {!) SivS.'Romillj, art/. JIuffiioibi en ont etendu la disposition aux 
 
 V. Bascleij, 14 Ves. 285, adopted by maitres, aux medecins, aux confes- 
 
 Lord Cottenham, Bent v. Bennett, seui's." 
 
 4 My. & Cr. 269, 277; lilUagc (w) 15 Beav. 234, 240. 
 
 V. Southce, 9 Ha. 534, 540. Cp. {n) 15 Beav. 275, 298 ; the most 
 
 D'Aguesseau (CEn\Tes, 1. 299) important passage of the judgment 
 
 "Parceque la raison de I'ordon- is also set out in the notes to 
 
 nance est generale, et qu'elle com- Ri<[/ucnin v. Baseleij, 2 Wh. & T. 
 
 prend egalement tons ceux qui L. C. 
 peuvent avoir quelque empire sur 
 
 P. GO
 
 562 DURESS AND UNDUE INFLUENCE. 
 
 donation, a large pecuniary benefit from another," tlie 
 person taking the benefit is bound to show "that the 
 donor voluntarily and deliberately performed the act, know- 
 ing its nature and effect." 
 
 For this purpose a voluntary donation means any trans- 
 action in which one person confers a large pecuniary benefit 
 on another, though it may be in form a contract (o) ; and 
 the rule is said to obtain whether there is any confidential 
 relation or not. And further, if the case is one of those in 
 which " the Court, from the relations existing between the 
 parties to the transaction, infers the probability of undue 
 influence having been exerted," the presumption thus 
 raised has to be rebutted by proving, not only " that the 
 person likely to be so influenced fully understood the act 
 he was performing, but also that his consent to perform 
 that act was not obtained by reason of the influence pos- 
 sessed by the person receiving the benefit." 
 
 There is also a dictum of Lord Hatherley in favour of 
 this extended doctrine; "It is clear that anyone taking 
 any advantage under a voluntary deed, and setting it up 
 against the donor, must show that he thoroughly under- 
 stood what he was doing, or, at all events, was protected 
 by independent advice" (j)). 
 
 It is nevertheless very doubtful whether these wide 
 statements, which (except, perhaps, as to Cooke v. Lamotte) 
 go beyond what was required for the decisions that gave 
 occasion for them, can be accepted as law. They have not 
 been contradicted in any reported ease, but the present 
 writer has reason to know that they cannot be relied on in 
 practice. Carried to their full extent, they would make 
 an irrevocable gift almost impossible. No man could con- 
 fer a boon with grace or enjoy it without misgiving. 
 
 It has been suggested in the Irish Coui-t of Chancery 
 that if ILf liter v. Atkins goes too far in one direction, 
 
 (o) E.g. Cooke V. Lamotte, 15 Boav. [p) r/iilltps v. MuUings, 7 Ch. at 
 
 234 ; Dent v. Beiuieit, 4 My. & Cr. p. 24G. 
 2G9, 273.
 
 RULES ON SPECIAL POINTS. 563 
 
 Coohe V. Lamotte and Hoghtoii v. IlogJiton go too far in 
 the other, and it may finally be established that the true 
 rule lies between these {q) The supposed middle course 
 would however be difficult to define. 
 
 It is certain that in the absence of any special relation Burden of 
 from which influence is presumed, and when it is sho^vn that where no 
 the grantor fully understood the effect of his act, the burden special 
 of proof is on the person impeaching the transaction (r) , and 
 he must show affirmatively that pressm-e or undue influence 
 was employed. 
 
 Having thus stated the fundamental rules, we may pro- Auxiliary 
 ceed to say something more of— dSrines 
 
 (1) The auxiliary rules applied by courts of equity to on special 
 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) What are the continuing relations between the 
 parties from which influence has been presumed : 
 
 (4) From what circumstances, apart from any continu- 
 ing'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. Voluntary 
 Conv. 3. pt. 1. Appx. No. 4.) ^tT^nc- 
 
 A voluntary settlement which dej)rives the settlor of the rally, 
 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 suspicion of unfair motive, is not in a much 
 better position than an absolute and immediate gift. It 
 seems indeed doubtful whether the Court does not consider 
 
 {q) Kirwan v. Culkn, i Ir. Ch. (r) Blackicy. Clark, Id Beav. 596; 
 
 322, 328. Tokn- v. Taker, 31 Beav. 629, 3 D. 
 
 J. S. 487. 
 
 2
 
 664 
 
 DURESS AND UNDUE INFLUEXCE. 
 
 As to 
 power of 
 revoca- 
 tion. 
 
 it improvident to make in general indefinite contemplation 
 of man-iage the same kind of settlement whicli in contem- 
 plation and consideration of a definitely intended marriage 
 it is thought improvident not to make (s) . 
 
 It is conceived that the ground on which such disposi- 
 tions are readily set aside at the instance of the settlor's 
 representatives is not the imprudence of the thing alone, 
 but an inference from that, coupled with other cii'cum- 
 stances — such as the age, sex, and capacity of the settlor — 
 that the effect of the act was not really considered and 
 understood at the time when it was done {t). 
 
 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 (u). 
 
 It was a rule of Chancery practice that a voluntary 
 settlement could not be set aside at the suit of a de- 
 fendant. The person impeaching it had to do so by a 
 substantive proceeding in either an original or a cross 
 suit (rr) . Under the new practice he will proceed by 
 counter-claim if sued on the deed. 
 
 Special 
 relations. 
 
 Ag-e, ikc. 
 not ma- 
 terial. 
 
 2. Auxiliary rules as to the influence presumed from 
 special relations. 
 
 The principle on which the Com-t acts in such cases is 
 not affected either by the age or capacity of the person 
 
 (s) Evcritt V. Everitt, 10 Eq.405 ; 
 but here some of the usual provi- 
 sions were omitted. 
 
 {I) lb.; Fridvaiix v. Lonsdale, 1 
 D. J. S. 4153 : this ground is strongly- 
 taken by Jessel, M. R. in llutton v. 
 Thompson, 23 Ch. D. at p. 281. So 
 common ignorance or mistake of 
 both parties as to the effect of an 
 
 instrument may sometimes be in- 
 feiTed on the face of it from its 
 unreasonable or unusual character : 
 see p. 454 sujjra. 
 
 {u) Udll v. Hall, 8 Ch. 430,where 
 the former cases are reviewed. 
 
 [x) Wail's tr. 2 D.J. S. 365, 372; 
 H((ll V. Hall, 14 Eq. 3G5, 377.
 
 CONFIDENIIAI. Ri;i,.VTIOXS : ENIDKXCE. 5G5 
 
 conferring the benefit, or by the nature of the benefit 
 conferred {//). 
 
 "Where a relation of confidence is once established, 
 either some positive act or some complete case of abandon- 
 ment must be shown in order to determine it :" it will not 
 be considered as determined whilst the influence derived 
 from it can reasonably be supposed to remain (//). 
 
 Where the influence has its inception in the legal Influence 
 authority of a parent or guardian, it is presumed to con- to con- 
 tinue for some time after the termination of the legal t™^c. 
 authority, until 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 (z). 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 
 before the judgment can be supposed to be wholly emanci- 
 pated : this of course does not exclude actual proof of 
 undue influence at any subsequent time (a). With regard Evidence 
 to the evidence to be adduced to rebut the presumption in to^rebi^t 
 a transaction between a father and a son who has recently presump- 
 attained majority, the father is bound " to show at all iufiuence. 
 events that the son was really a free agent, that he had Father 
 adequate independent advice . . . that he perfectly under- 
 stood the nature and extent of the sacrifice he was making, 
 and that he was desirous of making it." 
 
 " So again, where a solicitor purchases or obtains a benefit from a Solicitor 
 client, a court of equity expects him to be able to show that he has ^^^ client, 
 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 " (b). 
 
 (y) Per Turner, L. J. Rhodes v. (a) See per Lord Cranworth, 7 
 
 Bate, 1 Ch. 252, 257, 2G0 ; Hohmn H. L. C. at p. 772. 
 
 V. Loynes, 4 D. M. G. 270, 283. [b) Savery v. Kbnj, 5 H. L. C. at 
 
 (s) Archer v. Hudson, 1 Beav. p. 655. Casborne v. Bnr.'iham, 2 
 
 551,560; Wright v. VanderpJank, Beav. 76, seems not quite consistent 
 
 8 D. M. G. 133, 137, 146. with this, but there the plaintiff
 
 566 
 
 DURESS AND UNDUE INFLUENCE. 
 
 Kduciaiy 
 
 I'elations 
 generally. 
 
 He must give all the reasonable advice against himself 
 tliat he vi^ould have given against a third person (e) . And 
 he must not deal with his client on his own account as an 
 undisclosed principal. " From the very nature 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 without telling 
 his client that he is purchasing" (r/). 
 
 The result of the decisions has been thus summed up 
 by the Judicial Committee of the Privy Council. " The 
 Court does not hold that an attorney is incapable of pur- 
 chasing from his client; but watches 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 intervention of another professional adviser. 
 But if he does not, he must not be surprised at the trans- 
 action being disputed, and may have to j^ay his own costs 
 even if in the result it is upheld. 
 
 ' ' The broad principle on whicli the Coiu-t acts in cases of this descrip- 
 tion 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 any transaction between the parties to stand unless there 
 has been the fullest and faii'est explanation and communication of every 
 particular resting in the breast of the one who seeks to establish a con- 
 tract with the person so trusting him " (/) 
 
 In other words, every contract entered into by persons 
 standing in such a relation is treated as being ubern'mae 
 
 was not the client himself, but his 
 assignee in insolvency, and the 
 client's own evidence was rather 
 favourable to the solicitor. 
 
 {(■) Gibson v. Jei/cs, (J Ves. 266, 
 278. As to solicitor's charges see 
 Lyddon v. Moss, 4 De G. & J. 104. 
 
 {d) McPherson v. Watt (Sc), 3 
 App. Ca. 254, 272. 
 
 {(■) Tlsanl V. A.-G. for Gibraltar, 
 L. K. 5 r. C. 510, 536, 540. Ac- 
 
 cording to Morf/an v. Minett, 6 Ch. 
 D. 638, there is a still more 
 stringent rule as to gifts — an abso- 
 lute rule of law "that while the 
 relation of solicitor and client sub- 
 sists the solicitor cannot take a gift 
 from his client." Scd qu. See 
 note at end of this chapter. 
 
 (/) Per Page Wood, V.-C. Tate 
 V. Williamson, 1 Eq. at p. 536.
 
 DUTY ATTACHED TO FIDUCIARY RELATIONS. 567 
 
 fidei, and may be vitiated by silence as to matters wbicli 
 one of two independent parties making a similar contract 
 wonld 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 {(j). 
 
 Thus a medical attendant who makes wath 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 ho may 
 have professionally acquii-ed, whether by forming his own 
 opinion or by consulting with other practitioners, as to the 
 probable dm'ation of the life {h). Perhaps the only safe 
 way, and certainly the best, is to avoid such contracts 
 altogether. 
 
 In Grosvenor v. S/icrraft (/), where a mining lease had 
 been granted by a young lady to her brother-in-law (the 
 son of her father's 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 information has been imparted, and that 
 the agreement has been entered into with perfect good 
 faith " {(j) . Nor is the agent's duty altered though the pro- 
 posal originally came from the principal and the principal 
 shows himself anxious to complete the transaction as it 
 
 (ff) Mohny \.Kernan, 2 Dr. iScW. facts: "A. sells by auction to B. 
 
 at p. 39. a horse which A. knows to be un- 
 
 (A) Fopham v. Broolce, 5 Russ. 8. sound. A. says nothing to B. 
 
 {%) 28 Beav. Go9, 663. about the horse's unsoimdness. 
 
 (A:) This is an extreme case. The This is not fraud in A." (s. 17, 
 
 Indian Contract Act, s. 16 (see iUust. «): biit if " B. is A.'sdaugh- 
 
 Note M.) does not seem to go so ter and is just come of ago, here 
 
 far. It does make it the duty of a the relation of the jJarties would 
 
 contracting party in loco parentis to make it A.'s duty to tell B. if the 
 
 the other to disclose all material horse is unsoimd " (ii. illust. V).
 
 563 
 
 DURESS AXD UNDUE INFLUENCE. 
 
 Family 
 arrang-e- 
 ments 
 excep- 
 tionally 
 favoiu'ed. 
 
 stands {»}) . The same rules apply to an executor who him- 
 self becomes the pui'chaser 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. 243 above) to be in- 
 cidental to the special nature of their employment, and to 
 be a duty founded on contract rather than one imposed by 
 any rule of law which guards the freedom of contracting 
 parties iu 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 trans- 
 action, but which is not more in his own knowledge than 
 in the client's (o). 
 
 It must not be forgotten that the suspicion with which 
 dealings between parents and children presumably still 
 under parental influence are regarded by coiu-ts of equity 
 is to a certain extent counteracted by the favour with 
 which dispositions of the kind known as family arrange- 
 ments are treated. In many cases a balance has to be 
 struck between these partly conflicting presumptions. 
 " Transactions between parent and child may proceed 
 u]3on 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 trans- 
 actions with favour. It does not minutely weigh the con- 
 siderations on one side or the other. Even ignorance of 
 rights, if equal on both sides, may not avail to impeach 
 the transaction (;;). On the other hand, the transaction 
 
 (m) Dalit/ V. Wonham, 33 Bcav. 
 154. 
 
 (m) Baker v. Bead, 18 Beav. 398 ; 
 where however relief was refused 
 on the ground of 17 years' delay. 
 
 (o) Edivarch v. Mojrick, 2 Ila. GO, 
 74 ; llolman v, Loynes, 4 D. M. Q. 
 
 at p. 280. 
 
 {})) Perhaps it is safer to say that 
 the " almost invincible jealousy" 
 of the Court is reduced to "a 
 reasonable degree of jealousy:" cp. 
 Lord Eldou's language in Hatch v. 
 Hatch, 9 Ves. at p. 296, and Twed-
 
 RELATIOXS "WHENCE INFLUENCE PRESUMED. 569 
 
 may Le one of bounty from the cliild to the parent, soon 
 after the child has attained twenty-one. In such cases 
 this Coiu't views the transaction with jealousy, and 
 anxiously interposes its protection to guard the child from 
 the exercise of parental influence " (q). 
 
 It must he observed that the rules concerning gifts, or 
 transactions in tlie 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 pro- 
 viding for descendants (r) . 
 
 3. Eelations between the parties from which influence Relations 
 has been presumed. ^"^^^i, 
 
 ••■ which 
 
 It would be useless to attempt an exact classification of influence 
 that which the Court refuses on principle to define or P^^^™^'^ 
 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. Eelations in which there is a power analogous to that Cases 
 of parent or guardian. -^°f-« 
 
 Uncle i>i loco parentis and niece : Archer v. Iluclson, 7 Beav. 551 ; Mait- 
 land V. Irving, 15 Sim. 437. Step-father in loco 2^''rentis and step- 
 daughter: Kempson v. Ashbee, 10 Ch. 15; Hspe)/ v. Lake, 10 Ha. 260. 
 Executor of a -will (apparently in a like position) and the testator's 
 daughter: Grosvenor v. Sherratt, 28 Beav. 659. 
 
 dell V. Tweddcll, Turn. & R. at p. v. King, 5 H. L. 0. at p. 657. A 
 
 13. On the question of considera- sale by a nephew to his [great] 
 
 tion see Williams v. Williams, 2 uncle of his reversionary interest in 
 
 Ch. 294, 304. an estate of which the uncle is 
 
 [q) Baker v. Bradley, 7 D. M. G-. tenant for life is not a family ar- 
 
 597,620. See alsoWallacey. Wallace, rangement : Talbot v. Staniforth, 1 
 
 2 Dr. & W. 452, 470 ; Bellamy v. J. & H. 484, 501. As to the 
 
 Sabine, 2 Ph. 425, 439 ; Hoghton v. amoiuit of notice that will affect a 
 
 Hoghton, 15 Beav. 278, 300 ; and purchaser, Bainbrigge v. Broicne, 
 
 on the doctrine of family arrange- 18 Ch. D. 188. 
 ment not applying when a son (r) Bcanland v. Bradley. 2 De Gr. 
 
 without consideration gives up & Sm. 339. 
 valuable rights to his father, Savcry
 
 570 DURESS AXJ) UNDUE INFLUEXX'E. 
 
 Husband of a minor's sister with whom the minor had lived for some 
 time before he came of age : Griffin v. Devmille, 3 P. Wms. 131, ti. But 
 the mere fact of a minor Living with a relative of full ago 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, 19 Ch. D. 603. 
 
 Two sisters living together, of whom one was in all respects the head 
 of the house, and might be considered as in loco parentis towardgthe other, 
 though the other was of mature years: Harvey v. 3Iount, 8 Beav. 439. 
 Brother and sister, where the sister at the age of 46 executed a voluntary 
 settlement under the brother's advice and for his benefit : Shari) v. Leach, 
 31 Beav. 491. 
 
 Husband and wife on the one part, and aged and infii-m aunt of the 
 wife on the other: Griffiths v. Robins, 3 Mad. 191. 
 
 Distant relationship by marriage : the donor old, infirm, and his 
 soundness of mind doubtful ; great general confidence in the donee, who 
 was treated by him as a son : Steed v. Galley, 1 Kee. 620. This rather 
 than the donor's insanity seems the true ground of the case, see p. 644. 
 
 Keeper of lunatic asylum and recovered patient : Wright v. Proud, 
 13 Ves. 136. 
 
 There are also cases of general control obtained by one person over 
 another without any tie of relationship or lawful authority : Bridyman 
 V. Green, 2 Ves. Sr. 627, Wilm. 58, where a servant obtained complete 
 control over a master of weak understanding : Kay v. Smith, 21 Beav. 
 522, aflirmed nom. Smith v. Kay, 7 H. L. C. 750, where an older man 
 living with a minor in a joint course of extravagance induced him imme- 
 diately on his coming of age to execute secuiities for biUs previously 
 accepted by him to meet the joint expenses. 
 
 In Lloyd v. Clark, 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 warrant including the position of a superior officer in the general 
 category of " suspected relations." 
 
 Cases B. Positions analogous to that of solicitor. 
 
 analogous 
 
 to solicitor Certificated conveyancer acting as professional adviser : Rhodes v. Bate, 
 
 and cuent. j q^^ 252. Counsel and confidential adviser : Broun v. Kennedy, 33 Beav. 
 
 133, 148, 4 D.J. S. 217. 
 Confidential agent substituted for solicitors in general management of 
 
 affairs : Hiiguenin v. Baseley, 14 Ves. 273 {■•<). 
 
 (.s) A fortiori, where characters Fayne, 8 Ch. 881, where however 
 
 of steward and attorney are com- the facts are not given in any detail. 
 
 bined : Harris v. Tremenhecre, 15 As to a land agent purchasing or 
 
 Ves. 34. A flagrant case is Baker taking a lease from bis principal, 
 
 v. Loader, 10 Ya^. 49. Cp. Moxon v. see also Molony v. Kernan, 2 Dr. &
 
 RELATIONS WHENCE INFLUENCE PRESUMED. 571 
 
 A person deputed by an elder relation, to wliom a young man applied 
 for advice and assistance in pecuniary difficulties, to ascertain the state 
 of his affairs and advise on relieving him from his debts : Tate v. 
 Williamson, 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 : Bent v. 
 Bennett, 4 My. & Cr. 2G9 ; Billage v. Soiithee, 9 Ila. 534 ; Ahearne v. 
 Ilogan, Dru. 310; though in Blackie v. Clark, 15 Bea. 595, G03, some- 
 what less weight appears to be attached to it. It does not ajipcar 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 inconsistency with 
 the other authorities. For another unsuccessful attempt to set aside a 
 gift to a medical attendant, see Pratt v. Barker, 1 Sim. 1, 4 Russ. 507 ; 
 there the donor was advised by his own solicitor, who gave positive 
 evidence that the act was free and deliberate. 
 
 c. Spiritual influence. Spiritual 
 
 influence 
 It is said that influence would be presumed as between a clergyman or mixed 
 any person in the habit of imparting religious instruction and another character 
 person placing confidence in him: Bent v. Bennett, 7 Sim. at p. 546. 
 Tliere 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 mei'ely on the presumption of influence resulting there- 
 from, 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 : NottidgeY. Prinee, 2 Gift". 246 ; Lyon v. Home, 
 6 Eq. 655 {t). In the former case at all events tliere was gross imposture, 
 but the spii'itual dominion alone would have been sufficient gromid to set 
 aside the gift : for the Court considered the influence of a minister of 
 religion over a person under his direct spii'itual charge to be stronger 
 than that arising- from any other relation («) . There seems to have been 
 also in Xorton v. Belli/, 2 Eden, 286, the earhest reported case of this 
 class, a considerable admixtui-e of actual fraud and imposition. 
 
 The authority of Huguoiin v. Baseleg, 14 Ves. 273, 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 argimient in 
 
 W. 31 ; Lord Selsey v. RJwades, 2 p. 567 above. 
 
 Sim. & St. 41, 1 BU. 1. Inllossiter {t) In Lyon v. Home the evidence 
 
 V. Walsh, 4 Dr. & W. 485, where appears to have been in a very un- 
 
 the transaction was between an satisfactory condition, and on many 
 
 agent and a sub-agent of the same particulars to have led to no definite 
 
 principals, the case was put by the conclusion : the case is therefore 
 
 bill (p. 487), but not decided, on the more curious than instructive, 
 
 ground of fiduciary relation. See {n) 2 Griff. 269, 270.
 
 572 
 
 DURESS AND UNDUE INFLUENCE. 
 
 Undue 
 
 influence 
 
 "without 
 
 fiduciary 
 
 relation. 
 
 Socvirities 
 obtained 
 by pres- 
 sure : 
 Williams 
 V. Bayley. 
 
 reply, to wliicli repeated judicial approval has given a weight scarcely if 
 at all inferior to that of the decision itself. 
 
 4. Circumstances held to amount to proof of undue in- 
 fluence, apart from any continuing relation. 
 
 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 was 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 agreement was in itself illegal, as being 
 substantially an agreement to stifle a criminal prosecu- 
 tion (.r). 
 
 In Ullis V. Barlicr {//) 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 occu- 
 pied as yearly tenant. One of the trustees was the land- 
 lord'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 
 arrangement 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 cestuis 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 in- 
 fluence specifically proved to have been used to procure 
 the party's consent to that particular transaction (;:) . 
 
 (x) Williams v. Bayley, L. R. 1 
 H. L. 200 ; cp. p. 288 above. 
 
 {y) 7 Ch. 104. 
 
 \z) Cp. OrmvH v. Bcadd, 2 Giff. 
 1G6, revd. 2 D. F. J. 333, on the 
 
 ground that the agreement had 
 afterwards been voluntarily acted 
 upon with a knowledge of all the 
 facts.
 
 UNDERVALUE. 573 
 
 In Smith v. Kaij {a) a young man completely under the Smith v. 
 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 advice ; 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 
 claiming under the securities to give satisfactory evidence 
 of fair dealing (/;). 
 
 This comes very near to the peculiar class of cases on 
 " catching bargains " with which we shall deal presently. 
 
 Undue influence may be inferred when the benefit is Other 
 
 circuni" 
 
 such as the taker has no right to demand [/. c. no natural stances 
 or moral claim] and the grantor no rational motive to *^?^t 
 
 give (r). undue 
 
 influenco 
 infeiTed. 
 
 Inadequacy of the consideration, though in itself not As to 
 
 decisive, may be an important element in the conclusion ^^^^^^' 
 ^ . . value. 
 
 arrived at by a court of equity with respect to a contract 
 
 of sale. 
 
 The general rule of equity in this matter has been General 
 
 thus stated by Lord Westbury : " It is true that there JeJ-^^^i^e" 
 
 is an equity which may be founded upon gross inade- bas of 
 
 quacy of consideration. But it can only be where the effect!^" 
 
 inadequacy is such as to involve the conclusion that the 
 
 party either did not understand what he was about or was 
 
 the victim of some imposition " [d). 
 
 {(() 7 H. L. C. 750. V. Gordon, 11 Beav. 265, 270 ; cp. 
 
 [b) Pp. 761,770. The securities UndcrhiU v. Honcood, 10 Ves. at 
 
 given were for an amount very p. 219 ; Suiiiiuers v. Grijfltlts, 35 
 
 much exceeding the whole of the Beav. 27, 33, and the earlier dictum 
 
 sums really advanced and the in- there referred to of Loi'd Thurlow 
 
 terest upon them : p. 778. in Gwynne v. Hcaton (1 Bro. C. C. 
 
 (f) FiirccU v. JI'2\riMara, 14 Ves. 1, 9), that " to set aside a convey- 
 
 91, 115. ance there must be an inequality so 
 
 (d) Tcnnoitv. Tcnnoits, L. R. 2 strong, gross, and manifest, that 
 
 Sc. & D. 6, 9. For a modern in- it must be impossible to state it to 
 
 stance of such a conclusion being a man of common sense without 
 
 actually drawn by the Court from a producing an exclamation at the 
 
 sale at a gross undervalue, see Bice inequality of it."
 
 574 DURESS AND UNDUE INFLUENCE. 
 
 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, hut, standing alone, by 
 
 no means conclusive evidence (/). Even when coupled 
 
 with an incorrect statement of the consideration it will not 
 
 alone he enough to vitiate a sale in the absence of any 
 
 fiduciary relation between the parties (g) . 
 
 But But if there are other circumstances tending to show 
 
 with other that the vcndor was not a free and reasonable agent, the 
 
 cu-cum- ffj^Qi^ of the sale having been at an undervalue may be a 
 
 may be material element in determining the Court to set it aside. 
 
 material Thus it is when one member of a testator's family conveys 
 
 as evi- _ _ . 
 
 dence that his interest in the estate to others for an inadequate con- 
 orTreed'om sidcration, and it is doubtful if he fully understood the 
 of consent, extent of his rights or the effect of his act (h). If pro- 
 wanting, perty is bought at an inadequate price from an uneducated 
 man of weak mind (/) or in his last illness (/.•), who is not 
 protected by independent advice, the burden of proof is 
 on the purchaser to show that the vendor made the bar- 
 gain deliberately and with knowledge of all the circum- 
 stances. Nay, 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 mortgagor, and the mort- 
 gagor is a man in humble circumstances, without any 
 legal advice, then the onus of justifying the transaction, 
 
 (r) Wood V. Abreij, 3 Mad. 417, 229 ; cp. Bumingc v. White, 1 
 
 423 ; Peacock v. Evam, 16 Vea. 512, Swanst. 137, 150. 
 
 on ; StiUwcIl Y . JFWcms, J &c. 280, (i) Longmatc v. Lrdgo; 2 Giff. 
 
 282. 157, 163 (affirmed on appeal, see 
 
 [f)CoclicU V. Taylor, 15 Beav. 4 D. T. J. 402). 
 
 105, 115. {h) Clark v. Malpas, 31 Beav. 80, 
 
 {g) Harrison v. Guest, 6 D. M. G. 4 D. F. J. 401. 
 
 424, 8 H. L. C. 481. (l) Baker v. Monk, 33 Beav. 419, 
 
 (/() Sturge V. Sturgc, 12 Beav. 4 D. J. S. 388, 391.
 
 UNDERVALUE. 
 
 675 
 
 and showing that it was a right and fair transaction, is 
 thrown upon the mortgagee " {m). 
 
 Similarly if a purchase is made at an inadequate price 
 from vendors in great distress, and without any professional 
 assistance but that of the pm^chaser's attorney, "these cir- 
 cumstances are evidence that in this pm'chase advantage 
 was taken of the distress of the vendors," and the convey- 
 ance will be set aside (ji). 
 
 It has even been said that to sustain a contract of sale "Equality 
 in equity " a reasonable degree of equality between the the con- 
 contracting parties" is required (o). But such a dictum ti'actm!?^ 
 can be accepted only to this extent : that when there is a 
 very marked inequality between the parties in social posi- 
 tion or intelligence, 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 Coui't 
 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 satisfac- 
 tory 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. 26, expl. 2. " An agreement to 
 which the consent of the promisor is freely given is not 
 void merely because the consideration is inadequate ; but 
 the inadequacy of the consideration may be taken into 
 account by the Court in determining the question whether 
 the consent of the promisor was freely given." A sale 
 
 (;;;) Lord Hatherley, C. Frees v. same judge's remarks in Barrett v. 
 
 Coke, 6 Ch. 645, 649: though iii mtrtley,2 Eq. at p. 794. But see 
 
 general there is no rule against a the more guarded statement in 
 
 mortgagee buying from his mort- Wood v. Abreij, 3 Mad. at p. 423. 
 
 gagor : Knight v. Marjorihanks, 2 "A court of eqiiity -will inquire 
 
 Mac. & G. 10; and see Ford v. -whether the parties really did meet 
 
 Olden, 3 Eq. 461. on equal terms ; and if it be found 
 
 («) Wood V. Abrcy, 3 Mad. 417, tliat the vendor was in distressed cir- 
 
 424. cnmstances, and that advantage icas 
 
 (o) Longmate v. Ledger, 2 Giff. at taken of that distress, it will avoid 
 
 p. 163, by Stuart, v.- C. : cp. the the contract."
 
 576 DURESS AND UNDUE INFLUENCE. 
 
 made by a person of inferior 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 trans- 
 action deliberately, and had deliberately chosen not to take 
 independent professional advice [p). 
 Can spo- It is not SO clear however that a degree of inadequacy 
 fonnauce of consideration which does not amount to evidence of 
 be refused f^aud, &c., such as to be a ground for avoiding the contract, 
 groimd of may not yet be a sufficient ground for refusing specific 
 under- performance. The general rule as to granting specific 
 alone? performance, so far as it bears on this point, is that the 
 Court has a discretion not to direct a specific performance 
 in cases where it would be highly unreasonable to do so : it 
 is also said that one cannot define beforehand what shall 
 be considered unreasonable (*/). 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 contract valid 
 in law. And it is said in Watson v. Marston (q) that the 
 Court " must be satisfied that the agreement would not 
 have been entered into if its true effect had been under- 
 stood." Possibly 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 (;•), is regarded 
 
 {p) ITarrisou v. Guest, QD.M.. G. which courts of equity, down to 
 
 424, 8 H. L. 0. 481 ; cp. Itoshcr v. recent times, never decided a legal 
 
 WiUiams, 20 Eq. 210. point when they could help it. Now 
 
 {fl) Sec Wutson v. Mursto)!, 4 D. thatlegal and equitable jurisdiction 
 
 M. G. 2130, 239, 240, and dicta there arc miited the Court will consider 
 
 referred to. the question of damages if an action 
 
 (;•) Doubt aH to the validity of for sjiecific performance is brought 
 
 the contract, short of the conclusion in a case such that under the old 
 
 that it is not valid, has always been practice the bill would have been 
 
 held a sufficient ground for refusing dismissed without jn-ejudice to an 
 
 specific i^crformauce. Trobaldythis action: Tamplin v. James {Q. A.), 
 
 arose from tlie habit or cti(picttc by 15 Ch. D. 'Jl'i.
 
 rXDERVALTJE AXD SPECIFIC PERFORMANCE. 
 
 577 
 
 as making the performance of it biglily iinreasouable 
 within the meaning of the above rule : and for this pui'- 
 pose we assume the generality of the rule not to he affected 
 by anything that was said in IFafson v. 2Ianton. 
 
 The authorities are so conflicting tliat the best course Conflict- 
 seems to be to set them against one another and leave the ^{^{^^ 
 matter to the reader's judgment. Our own impression is collected, 
 that the opinion to which Lord Eldon at least inclined, and 
 which was expressed by Lord St. Leonards and Lord 
 Romilly, is the better supported and the more likely to 
 be upheld whenever the point comes before a Court of 
 final appeal. 
 
 In favour of treating inadequaey 
 of consideration as a ground for re- 
 fusing specific performance. 
 
 Toui/g V. Clark, Pre. Ch. 538. 
 
 Saville v. Saville, 1 P. Wms. 7-to. 
 
 Underwood v. Hitchcox, 1 Ves. 
 Sr. 279. 
 
 Other cases of the early part of 
 the 18th century cited from MS. 
 in ITon-cU y. George, 1 Mad. p. 9, 
 note {I). 
 
 Dag V. Keu-man, 2 Cox 77, see 
 p. 80, and ad fin . : the case was of 
 a sale at a great over-value (nearly 
 double the real value), and there 
 were cross suits for specific j)er- 
 formance and for rescission. There 
 was nothing to show fraud, but it 
 was considered " too hard a bar- 
 gain for the Court to assist in." 
 Both bills were dismissed. 
 
 White V. Damon, 7 Ves. 30, 
 before Lord Rosslyn. 
 
 In JJ'cdgivood v. Adams, 6 Beav. 
 "GOO, 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 
 P. 
 
 Contra. 
 
 Collier v. Broicii, 1 Cox 428. 
 
 Anon. Cited in Jloriitner v. 
 Capper, 1 Bro. C. C. 158 : (sale of 
 an allotment to be made by In- 
 closure Commissioners ; value un- 
 ascertained at date of contract) . 
 
 W/iite V. Damon, 7 Ves. 30, 34, 
 on re-hearing before Loi-d Eldon 
 (but limited to sales by auction) . 
 
 Coles V. Trecothick, 9 Ves. 234, 
 246, per Lord Eldon: "unless 
 the inadequacy of price is such as 
 shocks the conscience, and amoimts 
 in itself to conclusive and decisive 
 evidence of fraud in tlie transac- 
 P P
 
 578 
 
 JJURE^<S ANJ) INDUE INF lA KXCK, 
 
 have been the real intention of the 
 parties) bound them personally to 
 exonerate the estate from incum- 
 brancers, 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 between a 
 purchaser and a vendor in his own 
 right, since the trustees undertook 
 a j)ersonal risk without even the 
 chance of any personal advantage. 
 Favie V. Brown, before Lord 
 Hardwicke, cited 2 Ves. Sr. 307, 
 and refen-ed to by Lord Langdale 
 in TFcdf/tcood v. Adams, was a 
 peculiar case: the hardship was 
 not in any inadequacy of the pur- 
 chase-money, but in the fact that 
 the vendor would lose half of it by 
 the condition on which he was 
 entitled to the property. 
 
 In Falcke v. Grai/, 4 Drew. 651, 
 (in 1859) there was something 
 beyond mere inadequacy : the 
 agreement was for a purchase at 
 a valuation, and there was no 
 valuation by a competent person. 
 V.-C. Kindersley however ex- 
 pressed a distinct opinion that 
 specific performance ought to be 
 refused on the mere groirnd of in- 
 adequacy, even if there were none 
 other, relying chiefly on JFhite v. 
 Damon and Dai/ v. Neicman. 
 
 He referred also to Vaughan v. 
 Thomas, 1 Bro. C. C. 556 (a not very 
 intelligibly reported case, where the 
 agreement was for the re- purchase 
 of an annuity : the statement of 
 the facts raises some suspicion of 
 fraud): — to Hcathcote v. raignon, 
 2 Bro. C. C. 167 ; (but this and 
 other cases there cited in the re- 
 porter's notes prove too much, for 
 they are authorities not for refus- 
 ing specific performance, but for 
 
 tion, it is not itself a sufficient 
 ground for refusing a specific i)er- 
 formance." 
 
 Western v. Rtissell, 3 Ves. & B. 
 187, 193. 
 
 Borell v. Bann, 2 Ha. 440, 450, 
 per Wigram, V.-C. 
 
 Ahhott V. Sworder, 4 De G. & 
 Sm. 448, 461 : per Lord St. Leo- 
 nards, ' ' the undervalue must be 
 such as to shock the conscience" 
 [i. e. as to be sufficient evidence 
 of fraud, cp. Lord Eldon's dictum 
 sitpra]. 
 
 Lord .Justice Fry, writing in 
 1858, considered this to be "the 
 well established principle of the 
 Court" (On Specific Perform- 
 ance, ^ 281) ; and this is repeated 
 in the second edition, 1881 (§424, 
 p. 194), notwithstanding the case 
 of Falcke v. Gray, which is said 
 to ' ' break the recent current of 
 authorities." 
 
 Ilayicood v. Co2)e, 25 Beav. 140, 
 153.
 
 VNDEinALlK AXn sl'KCIl'lC PKUFORM.WCE. ' 579 
 
 actually settiug aside agrceiiients 
 on the ground of undervalue aloue, 
 ■which we have seen is contrary to 
 the mpdern law) : — and to Kien v. 
 Stukekij, 1 Bro. P. C. 191, where 
 specific performance was refused by 
 the House of Lords, reversing the 
 decree of the Exchequer in equity 
 (but on another ground, the ques- 
 tion of value being "a very doubt- 
 ful point among the Lords," S. C. 
 Grilb. 155, nom. Keen v. StueJdey). 
 
 The decisions in Cost if/an v. 
 iradlcr, 2 Sch. k L. IGO, and 
 J Lowell V. George, 1 Mad. 1 (though 
 the dicta go farther), show only 
 that a man who has contracted to 
 dispose of a greater interest than 
 he has will not be compelled to 
 complete his title by purchase in 
 order to perform the contract. 
 
 A brief notice of Continental laws as to sales at an 
 undervalue, and of the Frencli law on the head of capta- 
 tion (partly corresponding to our Undue Influence), will he 
 found in the Appendix {s) . 
 
 We have still to deal with an important exceptional Excep- 
 elass of cases. That which may have been a discretionary cL'^ses^of 
 inference when the discretion of courts of equity was larger expectant 
 than it now is has in these cases become a settled pre- rever- 
 sumption, so that fraud, or rather undue influence, is sioners. 
 " presumed from the circumstances and condition of the 
 parties contracting " (i"). The term fraud is indeed of 
 common occurrence both in the earlier (/) and in the later 
 authorities : but " fraud does not here mean deceit or cir- 
 cumvention ; it means an unconscientious use of the power 
 
 (s) Kate p. ' ' mixed cases compounded of all 
 
 {t) Lord Hardwicke in Chester- or several species of fraud:" but 
 
 /c7f/ v. /(?»,<;•«'«, 2 Ves. Sr. at p. 125, the phrase as to presumption is 
 
 classifies this in general tenns as almost literally rejieated, and it is 
 
 " a third kind of fraud:" he pro- obvious that these cases really come 
 
 ceeds (at p. 157) to make a separate under his third head, 
 head of catching Ijargains, as 
 
 i>v2
 
 580 
 
 DURESS AND INDUE INFLUENCE. 
 
 Motives 
 for ex- 
 ceptional 
 treatment 
 
 1. Prc- 
 Bumption 
 of fraud. 
 
 arising out of these circumstances and conditions ^^ {h) : 
 and this does not come within the proper meaning of 
 fraud, which is a misrepresentation (whether by untrue 
 assertion, suppression of truth or conduct) made with the 
 intent of creating a particular 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 com- 
 pulsion, 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 prin- 
 ciples are those who stand, in the words of Sir George 
 Jessel, " in that peculiar position of reversioner or remain- 
 derman 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 by 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 sup- 
 posed or presumed affection of his ancestor or relative. 
 More than this, the doctrine as to expectant heirs has been 
 extended to all reversioners and remaindermen, as appears 
 from Tottenham v. Emmet ie) and Earl of Aylesford v. 
 Morris [d). So that the doctrine not only includes the 
 class I have mentioned, who in some popular sense might 
 be called expectant heirs, but also all remaindermen and 
 reversioners "(e). 
 
 The Act 31 Yict. c. 4 has modified the practice of the 
 Court of Chancery (which now continues in the Chancery 
 Division) less than might be supposed: it is therefore 
 necessary to give in the first place a connected view of the 
 
 ih) Per Lord Selborne, Earl of 
 Aylexfonl v. Morris, 8 Ch. 484, 491. 
 (r) 14 W. K. 3. 
 
 {d) 8 Ch. 484. 
 
 {e) Beynon v. Cooh, 10 Ch. 391, n.
 
 KXl'KCI'ANI' IllUKS AM) K 1 ;\ KKS1().M;KS, 0<Sl 
 
 wliole doctrine as it formerly stood. It was considered 
 that persons raising money on their expectancies were at 
 such a disadvantage as to be peculiarly exposed to impo- 
 sition and fraud, and to require an extraordinary degree 
 of protection (,/') : and it was also thought riglit to dis- '2. Public 
 courage such dealings on a general ground of public to wdfaro 
 policy, as tending to the ruin of families {(j) and in most "/ f^^^i- 
 cases involving " a sort of indirect fraud upon the heads 
 of families from whom these transactions are concealed "(//). 
 
 Moreover laws against usury wore in force at the time 3. Evasion 
 when courts of equity began to give relief against these I'aws'.^"'^ 
 " catching bargains " as they are called (/") ; any trans- 
 actions 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 (/.•). 
 
 The doctrine which was at first introduced for the pro- Extension 
 tection of expectant heirs was in course of time extended j* *^?^ 
 to all dealings whatever with reversionary interests. In 
 its finally developed form it had two branches : — 
 
 (/) "A degree of protection ap- to make himself safe, but without 
 
 proaching nearly to an incapacity success, the Court pronouncing 
 
 to bind themselves by any con- them " a contrivance only to double 
 
 tract: " Sir W. Grant in Pcffroc/r v. hatch the cheat." UntiwArdylassc 
 
 IJraiis, 16 Vcs. at p. 514. v. Jliisc/uniip, 1 Vern. 238, it is said 
 
 {'/) Ttcisleton v. Griffith, 1 P. that many precedents from Loixl 
 
 Wms. at p. 312; Co/cv. Gibbons, 3 Bacon's, Lord Ellesmere's, and 
 
 P. Wras. at p. 293 ; Cliestcrficld v. Lord Coventry's times were pro- 
 
 Jmissrii, 2 Ves. Sr. at j). 158. duced. 
 
 {/i) Per Lord Selbornc, Juirl of (k) The reports of the eases on 
 
 Aijlc-fordv. Morris, 8 Ch. 484, 492 ; this head anterior to Chesterfield v. 
 
 ('hesterfiild v. Janssen, 2 Ves. Sr. Jffwsww are imfortunately so meagre 
 
 121, 157. that it is difficult to ascertain 
 
 [i) In Wiseman Y. BeaJce,2Y ei'n. whether they proceeded on any 
 
 121, it appears from the statement uniform priucij^le. But the motives 
 
 of the facts that twenty years or above alleged seem on the whole to 
 
 thereabouts after the Restoration have been those which determined 
 
 this j urisdiction was regarded as a the policy of the Court. On the 
 
 novelty: for the defendant's tes- gradual extension of the remedy 
 
 tator " understanding that the cp. the remarks of Burnett, J. in 
 
 Cliancery began to relieve against Cltesterfiehl v. Janssoi, 2 Ves. Sr, at 
 
 such bargains " took certain steps p. 145.
 
 582 DURESS AND UNDUE INFLUENCE. 
 
 1. As to reversionary interests, whetlier tlie reversioner 
 were also an expectant heir or not : 
 
 A. The rule of law that the vendor might avoid the sale 
 for undervalue alone : 
 
 J3. The rnle of evidence that the burden of proof was on 
 the purchaser to show that he gave the full value. 
 
 It is this part of the doctrine that is changed by the 
 Act 31 Yict. c. 4. 
 
 2. As to " catching bargains " with expectant heirs and 
 remaindermen or reversioners in similar circumstances, 
 i.e. bargains made in substance on the credit of their 
 expectations, whether the property in expectancy or rever- 
 sion be ostensibly the subject-matter of the transaction or 
 not (/) : 
 
 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 nsury laws, as we 
 
 shall see presently, has made any change in this respect. 
 
 Fornier The part of the doctrine which is abrogated was inti- 
 
 to'sales'oT ^n^tely connected both in principle and in practice with 
 
 reversion- that which remains ; and though it seems no longer neces- 
 
 terests. sary to go through the authorities in detail, it may still be 
 
 advisable to give some acconnt of the manner in which it 
 
 was applied {m). 
 
 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 reversionary interests 
 of every kind, and the vendor was none the less entitled 
 to the benefit of it if he had acted with full deliberation. 
 The presuniption originally thought to arise from trans- 
 
 (/) Earl of ^iijhsfvid Y. Morris, 8 {'") -^ digest of the cases was 
 
 C'li. at p. 497. g-iven in the two first editions 
 
 (p. 550, 2nded.).
 
 REVERSIONARY INTERESTS. 583 
 
 actions of this kind had in fact become transformed into 
 an inflexible rule of law, which, consistently carried out, 
 made it well nigh impossible 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 incon- 
 venience by extreme instances. Sales were set aside after 
 the lapse of such a length of time as 19 years, and even 
 40 years (w). A sub-purchaser who bought at a consider- 
 ably advanced price was held by this alone to have notice 
 of the first sale having been at an undervalue (o). 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 (j)). 
 
 Finally Parliament found it necessary to interfere, and Act to 
 by the " Act to amend the law relating to sales of rever- J^^^^^e-*^^ 
 sions," 31 Yict. c. 4 (7th December, 1867), it was enacted latingto 
 (s. 1) that no purchase (defined by s. 2 to include every reversions 
 contract, &e., l)y which a beneficial interest in property ^i Vict. 
 ma}^ be acquired), made bo))a fide and without fraud or 
 unfair dealing of any reversionary interest in real or per- 
 sonal estate, should after January 1, 1868 (s. 3), be opened 
 or set aside merely on the ground of undervalue. Subject 
 only to a saving of pending suits (s. 3) this act is retro- 
 spective, and this is the more remarkable inasmuch as the 
 right taken away by it from any vendor of a reversion who 
 might otherwise have set aside the sale on the ground of 
 undervalue alone was (as in the case of a sale voidable on 
 any other ground) not a mere right of suit, but an interest 
 which was transmissible by descent or devise {(f) . 
 
 The Act -is carefully limited to its special object of Limited 
 
 effect of 
 the Act. 
 («) St. Albany. Hardiiiij,2'lBeB,Y. 280. 
 II; Salter Y. Bradahaw, 2G Beav. {p) Jones\.Riciketts,il'BQax.liQ. 
 
 161. ((/) Gresley v. Mousletj, 4 De G. 
 
 (o) Xei^bitt V. Berridge, 32 Beav. & J. 78, 93.
 
 584 
 
 DURESS AM) INDIK INFLUENCE. 
 
 General 
 rules of 
 equity as 
 to "catch- 
 ing bar- 
 gains" un- 
 affected . 
 
 putting an ond to the arbitrary rule of equity which was 
 an impediment to fair and reasonable as well as to uncon- 
 scionable bargains. It leaves undervalue still a material 
 element in cases in which it is not the sole equitable 
 ground for relief (r). 
 
 It had already been decided in Croft v. GraJiam («) that 
 the repeal of the usury laws {t) did not alter the general 
 rules of the Court of Chancery as to dealings with expect- 
 ant heirs. This decision was followed in Miller v. Coo]i{u), 
 and adhered to in Tyler v. Yates (x), and lastly in J^arl of 
 Ayksford V. Morris [y) and Beynon v. Cook (z), and in the 
 two latter cases it has been clearly laid down that the rules 
 are in like manner unaffected by the change in the law 
 concerning sales of reversions. And this was confirmed 
 by all the opinions delivered in the recent case of O'Horke 
 V. Boliufjhroke [a) in the House of Lords, though the par- 
 ticular transaction in dispute was upheld. 
 
 The effect of tliese rules is not to lay down any pro- 
 position 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 such 
 
 (?•) Earl of Atjlesford v. Morris, 8 
 Ch. at p. 490. See also O'liorke v. 
 Bolingbrokc, 2 App. Ca. 814. 
 
 (*) 2D. J. S. 155. 
 
 (0 17 & 18 Vict. c. 90. But 
 before this complete repeal ex- 
 ceptions had been made from the 
 usury laws in favour of certain bills 
 of exchange, and loans exceeding 
 10/. not secured on land : 3 & 4 
 Wm. 4, c. 98, s. 7, 2 & 3 Vict. c. 37, 
 8. 1 , and comments thereon in Lane 
 V. Horlorlc, 5 H. L. C. 480. 
 
 (w) 10 Eq. C41. 
 
 \x) 1 1 E(i. 265, G Ch. 6G5. 
 
 {y) 8 Oil. 484 ; this may now bo 
 regarded as the leading case on the 
 subject. It should be observed that 
 in 2'i/lcr v. Yates a principal ;ind 
 surety made themselves liable for 
 a bill which the principal had 
 
 accepted during his minority, with- 
 out koofldng that there was no 
 existing legal liability on the bill, 
 and all the subsequent transactions 
 were bound up with this : and the 
 case was rested on this ground in 
 the Court of Appeal (p. 671). Cp. 
 on this point Coward v. Hughes, 1 
 K. & J. 443, where a widow who 
 during her husband's life had joined 
 as surety in his promissory note 
 executed a new note under the 
 impression that she was liable on 
 the old one, and without any new 
 consideration, and the note was set 
 aside ; see Southall v. litgg and 
 Forman v. Wright, 11 C. B. 481, 20 
 L. J. C. P. 145. 
 
 (-) 10 Ch. 389. 
 
 (^0 2 App. Ca. 814,
 
 (■AT(III.\(i 1!A1U;A1.\S. 585 
 
 consent was perfectly free. The question is therefore, Conditions 
 what are " the conditions which throw the burden of burden^ff 
 justifying- the righteousness of the bargain upon the party P™''*" ou 
 who chiims the benefit of it " (b). 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 rela- 
 tions from which infiuence will be presumed. In like 
 manner 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 jurisdiction. 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 dei^cnds. Earl 
 of Aijlesford v. Morris, 8 Ch. at p. 497. It is also immaterial whether 
 any particidar property is looked to for viltimate payment. A general 
 expectation dei'ived from the position in society of the bon'ower's family, 
 the lender intending to trade on their probable fear of exposure, may 
 have the same effect. NevUl v. SiwlUnff, lo Ch. D. 670, 702 (Denman, J.). 
 
 2. Terms ^»7"wrt facie oppressive and extortionate (/. 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 dis- 
 proportionately large consideration given by the borrower for the loan : 
 and it is not sufficient, standing alone, to invalidate a contract in ec[uity : 
 Webster v. Cook, 2 Cb. 542, where a loan at 60 per cent, per annum was 
 upheld. Stuart, V.-C. disapproved of the case in Tyler v. Yates (11 Eq. 
 at p. 270) but on another point. And see Farkcr v. Butehcr, 3 Eq. 
 702, 707. 
 
 (i) Earl of Aijlesford v. Morris, 8 Ch. at p. 492.
 
 586 DURESS AND UNDUE INFLUENCE, 
 
 3. A considerable excess in the nominal amount of the 
 sums advanced over the amount actually received by the 
 borrower. 
 
 Obs. This appears in all the recent cases in which relief has been 
 given : deductions being made on every advance, according to the com- 
 mon i^ractice of professed money-lenders, under the name of discount, 
 commission, and the like. The result is that the rate of interest appear- 
 ing to be taken does not show anything like the terms on which the loan 
 is in truth made : and this m.ay be con»<idered evidence of fraud so far as 
 it argues a desii-e on the part of the lender to gloze over the real terms of 
 the bargain. Probably however a jiu'y could not be directed so to con- 
 sider it in a trial where fraud was distinctly 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 circimistances are relied on in Earl of Aijlcsford v. Morris 
 (8 Ch. at p. 496) as increasing the difficulty of upholding the transaction : 
 cp. NevillY. SnelUng, 15 Ch. D. at pp. 702-3. This again is the usual 
 practice of the money-lenders who do this kind of business. Their terms 
 are calculated to cover the risk of there being no secui-ity at all ; more- 
 over 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 conceal- 
 ment of the transaction from the ancestor was held by Lord Brougham 
 in King v. Hamlet, 1 M. & K. 456, to be an indispensable condition of 
 equitable relief ; but this opinion is not now accepted {Earl of Aylesford 
 V. Morris, 8 Ch. at p. 491). The decision in King v. Hamlet (affirmed in 
 the House of Lords, but without giving any reasons, 3 Ci. & P. 218) can 
 be su^jported 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 con- 
 ditions concur, the burden of proof is thrown on the lender 
 to show that the 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. 
 Q"- if It may then be asked, By what sort of evidence is the 
 
 situated lender to satisfy the Court that the borrower was not
 
 CATC•H1^■G HARGAIXS. 587 
 
 imposed on ? As there is no reported case in which it cau in 
 was considered tliat the burden of proof lay upon the everox^ 
 lender, and yet ho did so satisfy the Court, it is impossible onerate 
 to give any certain ansAver to this question. But it does 
 not take very much reflection to see that it is in fact 
 extremely improbable that in any case where the above- 
 mentioned conditions are present any satisfactory evidence 
 should be forthcoming to justify the lender (<?). Practically 
 the question is whether in the opinion of the Court the 
 transaction was a hard bargain (c/) — that is, not merely a 
 bargain in which the consideration is inadequate, but an 
 unconscionable bargain where one party takes an unfair 
 advantage of the other (c). 
 
 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 pur- 
 chasers 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 con- 
 sequences (/). 
 
 The borrower who seeks relief against a contract of this Terms on 
 description must of course repay whatever sums have been ^ ^^ ^^' 
 actually advanced, with reasonable interest (according to given, 
 the usual practice of the Court, 5 j)er 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- 
 
 (r) "Noattempt lias been made to Kcvi/l v. SiwUi>ig, 15 Ch. U. G79, 
 show bj- any independent evidence where the lender systematically 
 [if such a tiling ruuld be conceived pos- took advantage of a mistaken over- 
 sibk) that the terms thus imposed payment of- interest by the bor- 
 on the plaintiff were fair and rea- rower, 
 sonable," 8 Ch. 49G. (/) Tuttcnhamx. Green, 32 L. J. 
 
 (f/) See the judg-ment of the Ch. 201 : a case decided under the 
 
 M. R. Beynonx. Cook, 10 Ch. 391, n., old rule as to dealings with rever- 
 
 and NeviU v. SncUing, 15 Ch. D. at sionary interests, but the principles 
 
 p. 703. seem applicable in all cases where 
 
 {e) Per Jessel, M. R. in Middle- the burden of proof is still on the 
 
 ton V. Brown (C. A.), Feb. 20, 1878 ; lender.
 
 588 
 
 ])l IIKSS AM) IN'Dl K IXFH EXCE. 
 
 As to the 
 lender 
 suiug on 
 the con- 
 tract. 
 
 sequences of liis own folly {g) : and accordingly the general 
 rule is to give no costs on either side (//). 
 
 The rule of evidence casting a special burden of proof 
 on the lender being peculiar to equity, there was generally 
 no defence at law to an action brought by him to enforce 
 a contract of this kind : nor would an equitable plea under 
 the Common Law Procedure Act have been available, 
 since such pleas were admitted only when they showed 
 cause for absolute and unconditional equitable relief. But 
 the rule of evidence established in equity must now prevail 
 in every branch of the High Court, and the probable effect 
 of this may be expressed as follows : 
 
 When a lender of money sues on a special contract, 
 whether the contract be embodied in a negotiable instru- 
 ment or not, and the borrower proves facts which bring the 
 contract within the description of a " catching bargain " as 
 understood by courts of equity, the lender must prove the 
 reasonableness of the bargain (/) ; and if he fails to do so, 
 he cannot recover on the special contract, but can recover 
 his principal and reasonable interest as on a common count 
 for money lent. It must be noticed that the importance 
 of this class of cases is much diminished, though the law 
 is not affected, by the Infants' Relief Act, 1874, which 
 makes loans of money to infants absolutely void and 
 
 [[/) Earl of Aijlcsford v. Morris, 8 
 Ch. at p. 499. 
 
 (A) In the cases of sales of rever- 
 sions under the former law on that 
 head the practice -was for some time 
 to treat the suit as a redemption suit, 
 and give the purchaser his costs as a 
 mortgagee: but the later rule was 
 to give no costs on either side, ex- 
 cept that the plaintitf had to bear 
 such as were occasioned by any 
 unf oimdcd charges of actual fraud : 
 Edwards v. Burt, 2 D. M. G. at 
 p. G5 : Bromley v. Smitit, 26 Beav. 
 at p. G70, and costs might be given 
 against the defendant as to any 
 transaction in -which there had 
 
 been misconduct on his part : Tot- 
 teiihamx. G>ee)i, 32 L. J. Ch. 201, 
 206. In Xevill v. Snelling, the 
 plaintiff having offered before ac- 
 tion brought to repay the sums 
 actually advanced with interest at 
 5 per cent., the defendant was 
 ordered to pay the costs: 15 Oh. D. 
 at p. 705. But this surely goes 
 near to stultifying the rule. 
 
 (/) Qh. is this a question for the 
 jury or for the Court? Prima facie 
 it should be a question of fact: but 
 there are some analogies {c.ff. the 
 cases on restraint of trade) for 
 treating it as a question of law.
 
 UKVERSIONAKV IX 1 KUKSTS. 559 
 
 forbids any action to be brought on a promise to pay debts 
 contracted during infancy. See p. GO, supra. 
 
 The same principles apply, so far as they are applicable Applica- 
 to a transaction of sale as distinguished from loan, to the principles 
 sale of reversionary interests by persons who are not in an ^^ sales of 
 independent position, as when tlie sale is made by a man sionary 
 only just of age in pursuance of terms settled while he w*^persons 
 was still an infant. Here the burden is on the purchaser in depen- 
 to sliow the fairness of the transaction. He is not bound tiou. 
 to show that the price given was absolutely adequate ; but 
 he is bound, notwithstanding the Act of 18G7 (-jI Vict. c. 4, 
 p. bS6 above), to show that it was such as, upon the facts 
 known to him at the time, he might have reasonably 
 thought adequate. Moreover he ought to see, where prac- 
 ticable, that the seller has independent legal advice. These 
 rules seem to be established by CHorke v. Boliiighrokc {k), 
 which is remarkable as an almost singular instance of an 
 impeached transaction with an " expectant heir " being 
 upheld. There a father and son negotiated with a pur- 
 chaser for the sale of the son's reversionary interest ex- 
 pectant on the death of the father. The sale was completed 
 three weeks after the son came of age. The price was 
 agreed to after some bargaining ; it was founded on a 
 statement of value furnished by a thii-d person, and would 
 have been adequate if the father's life had been a good 
 one. The purchaser did not know and had no reason to 
 believe anything to the contrary, but it was in fact a bad 
 life. The young man took no independent advice, being 
 " penniless, and except for his father friendless " (/). The 
 father died within three months after the sale. Four 
 years later the son sued to have the whole transaction set 
 aside, but failed in the House of Lords after succeeding 
 in the Com-t of Appeal in Ireland. The majority of the 
 Lords [in) held that the burden of proof was indeed on 
 
 {k) 2 App. Ca. 814. (w) Lord Blackburn, LordO'Ha- 
 
 \l) Lord Blackburn, at p. 837. gan, and Lord Gordon.
 
 O90 DURESS AND UNDUE INELUENCE. 
 
 the buyer, but that he had satisfied it. Lord Hatherley 
 dissented, thinking that it was the buyer's absolute duty 
 to see that the young man had independent advice. 
 " Sur- "V7e have yet to examine another alleged ground of 
 
 and"im- equitable relief against contracts, founded on the notion 
 provi-^^ of an inequality between the contracting parties : we say 
 alleged, for we adopt the opinion, for which there is high 
 authority, that it ought not to be treated as a substantial 
 ground for avoiding transactions, but only as matter of 
 evidence : we mean " surprise," or " surprise and impro- 
 vidence." 
 Evans r. The case of Evcuis v. Llewellyn (n) may be taken as the 
 
 typical instance. The plaintiff was a person of inferior 
 station and education who acc|uired by descent a title in 
 fee sinij)le to a share in land in which the defendant had 
 a limited interest. His title was first communicated to 
 him by the defendant, who represented to him (as the fact 
 appears to have been) that the circumstances of the family 
 created a moral obligation in the plaintiff not to insist on 
 his strict rights, and offered to purchase his interest for 
 a substantial though not adequate consideration. The 
 defendant suggested to the plaintiff to consult his friends 
 in the matter, which however he did not do. Three days 
 intervened between the first interview and the conclusion 
 of the business by the acceptance of the defendant's offer. 
 It was considered that the plaintiff was under the cir- 
 cumstances not a free agent and not equal to protecting 
 himself, and was taken by surprise, and the sale was set 
 aside (o). 
 
 The case seems somewhat anomalous, but it has been 
 suggested by very high authority that it woidd still be 
 followed in setting aside a contract as " improvident and 
 
 {n) See following note. Jlaijgarlh v. If'carlng, 12 Eq. 320, 
 
 (o) 2 Bro. C. C. 150 ; 1 Cox 333, -wliich to some extent resembled 
 
 a fuller report, which is hero fol- this, the ground of the decision 
 
 lowed ; the other if correct woidd was a positive misrepresentation as 
 
 reduce it to a plain case of fraud or to the value of the property, 
 at all events misrepresentation. In
 
 SIUIMUSK. 
 
 501 
 
 hastily carried into execution " (;?), and it has been dis- 
 tinctly approved in the Court of Appeal in Chancery (q). 
 
 It is submitted, however, that there is no intelligible Qk. if 
 reason for treating surprise or improvklence as a substantive j^^^^l'^^ ^^ 
 cause for setting aside contracts, much less for attempting any sub- 
 to give these words a technical signification. Both terms cause for 
 are in fact merely negative and relative. Surprise is no- avoidmff 
 
 "^ ° . . . contracts. 
 
 thing else than the want of mature deliberation : iniprovi- 
 denee is nothing else than the want of that degree of 
 vigilance which a man of ordinary prudence may be 
 expected to use in guarding his own interest. Now one 
 man's deliberation and prudence are not the same as 
 another man's, nor is the same man equally deliberate or 
 prudent at all times. A man may enter into a contract 
 with less deliberation than the average wisdom of mankind 
 would counsel, or than he himself commonly uses, in affairs 
 of the like nature, and yet the contract may be perfectly 
 valid. But he must in any case understand what he is 
 doing ; for if he does not, there is no true consent and no 
 contract (r), and his consent must be freely given; for if 
 it is not, the contract is voidable at his option. And if it But 
 be disputed whether there was or not any real consent, or stances" of 
 whether consent was or not freely given, then circumstances this kind 
 of what is called surprise or improvidence may be very material 
 material as evidence bearing on those issues. Unusual !°^ Pf°^'" 
 
 . . i^o the 
 
 haste or folly in entering into an engagement is a circum- existence 
 stance to be accounted for : and the best way of accounting Z-vouIlIT 
 for it may in all the circumstances of a particular case be foi" avoid- 
 to suppose that the party did not know what he was about, contract, 
 or that he was wrought upon by conduct of the other party '"^^ f^ui<ia- 
 of such a kind as to make the contract voidable on the error or 
 ground of fraud. Surprise and improvidence, therefore, are 
 
 {p) Lord St. Leonards in Curzon on the ground suggested. 
 
 V. Belworthy, 3 H. L. C. 742 : there {q) Per Turner, L. J. in Baker v. 
 
 the appellant relied on express Monk, 4 D. J. S. at p. 392. 
 
 charges of fraud, which were not (r) The cases of lunacy and diiin- 
 
 made out : but Lord St. Leonards kenness are exceptionally treated, 
 
 thought he might possibly have the contract being only voidable, 
 
 succeeded if he had rested his case snpra, Ch. II. p. 93, and see p. 418, 
 
 fraud.
 
 592 DURESS AND UXDIF, IXFI.UENCE. 
 
 matters from which those whose province it is to judge of 
 the facts may conclude, as a fact in particular cases, that 
 there was no true consent, or that the consent was not free. 
 But it is not to be affirmed as a general proposition of law 
 that haste or imprudence can of itself be a sufficient cause 
 for setting aside a contract, nor even that there is any par- 
 ticular degree of haste or imprudence from which funda- 
 mental error, fraud, or undue influence, will be invariably 
 presumed. " The Court will not measui'e the degrees of 
 Possible understanding " (5). It seems to follow that what is 
 tk)n of recorded in such a case as Evdus v. Llciccllyn it) is not an 
 Evans r. enunciation of law, but an inference of fact. Such an 
 inference may be useful in the way of analogy when 
 similar circumstances recur, but is not binding as an 
 Opinions authority. The view here taken may be supported by the 
 4nEarf*of observations of the judges in The Earl of Bath and Moioi- 
 Bathand tafjuc^s Case (a.d. 1693) {u). In that case Baron Powel 
 gue'scase. said (3 Ch. Ca. at p. 56) : 
 
 " It is said, This is a Deed that was obtained by Sui'prize and Cii'cvun- 
 vention. Now I perceive this word Surprize is of a very large and 
 general Extent ... I hardly know any Surprize that should be 
 sufficient to set aside a Deed after a Verdict, unless it be mixed with 
 Eraud, and that expressly proved." [i. e. the verdict in favour of the 
 deed precludes the party from asserting in equity that he did not know 
 what he was about : for he should have set up that case at law on the 
 plea of non est factum']. " It must be admitted that there was DeUbera- 
 tion, and Consideration and Intention enough proved to make it a good 
 Deed at Law, otherwise there would not have been a Verdict for it" : 
 per L. C. J. Treby, xb. at p. 74. 
 
 The judgment of the Lord Keeper Somers is even more 
 decided, and points out clearly the difference between an 
 instrument which is void both at law and in equity, and 
 one which is voidable in equity (p. 108) : — 
 
 "It is true, it is charged in the Bill that this Deed was obtained by 
 Fraud and Surprize . . But whosoever reads over the Depositions 
 
 («) Bridgmaii v. Green, Wihnot, {u) SCh.Ca. 55. Cp. Story, Eq. 
 
 58, G I. Jurisp. .J 251. 
 
 (0 1 Cox 333.
 
 " SURPRISE," ETC. 593 
 
 "Will sec tliat the Eud tliey aimed at was to attack the Deeds tlieinselves 
 ay false Deeds and not truly executed ; but that beiufy Tried at Law, and 
 the Will and Deeds verified by a Verdict, the Counsel have attempted to 
 make use of the same Evidence, and read it all, or at least the greatest 
 
 Part of it, as Evidence of Surprize and Cu-cuinvention 
 
 "Now, for this word (Sui-jirize) it is a Word of a g'encral Signification, 
 so general and so nncertain, that it is impossible to fix it ; a Man is sur- 
 priz'd in every rash and indiscreet Action, or whatsoever is not done with 
 80 much Judgment and Consideration as it ought to be : But I suppose 
 the Gentlemen who use that Word in this Case mean such Surprize as is 
 attended and accompanied with Fraud and Circumvention ; such a Siu"- 
 prize indeed may be a good gi'ound to set aside a Deed so obtain' d in 
 Equity and hath been so in all times ; but any other Surprize never was, 
 and I hope never will be, because it will introduce such a wild Uncer- 
 tainty in the Decrees and Judgments of the Court, as will be of greater 
 Consequence than the Relief in any Case will answer for." 
 
 Moreover the doctrine tlius stated is exactly analogous Analogy 
 to that which we have seen to be undoubted law concerning .f^ toh"^^ 
 inadequacy of consideration. The value of the subject- adequacy 
 matter of a contract, and therefore the adequacy of the deration, 
 consideration, which depends on it, is in most cases easier 
 to measure than the degree of deliberation or prudence 
 with which the contract was entered into. It can hardly 
 be contended on principle that " surprise " or " improvi- 
 dence," which in fact represent nothing but an opinion of 
 the general character of a transaction, founded on a pre- 
 carious estimate of average human conduct, ought to have 
 a greater legal effect than inadequacy of consideration, 
 which generally admits of being determined by reference 
 to the market value of the object at the date of the contract. 
 
 5. Limits of the right of rescission. 
 
 The right of setting aside a contract or transfer of pro- The right 
 perty voidable on the OTOund of undue influence is analoo:ous °* ^^^^^f' 
 to the right of rescinding a transaction voidable on any that in 
 other ground, and follows the same rules with some slight fraud°&c. 
 modifications in detail. a^<i S'o- 
 
 "Wliat is said in the last chapter of rescinding contracts same 
 for fraud or misrepresentation may be taken as generally '^'^^^• 
 applicable here. We proceed to give some examples of 
 the special application of the principles. 
 
 p. Q a
 
 594 
 
 DURESS AND UNDUE INFLUENCE. 
 
 Examples. 
 
 Jurisdic- 
 tion uot 
 confiued to 
 influence 
 of actual 
 pnrty to 
 tlie con- 
 tract. 
 
 The right to set aside a gift or beneficial contract void- 
 able for undue influence may be exercised by the donor's 
 representatives or successors in title {x) as well as by him- 
 self, and against not only the donee but persons claiming 
 through him (//) otherwise than as purchasers for value 
 without notice (z). But the jurisdiction is not exercised 
 at the suit of third persons. The Court will not refuse, 
 for example, to pay a fund, at the request of a petitioner 
 entitled thereto, to the trustees of a deed of gift previously 
 executed by the petitioner, because third parties suggest 
 that the gift was not freely made (n). 
 
 On the other hand it is uot necessary to the support of 
 a claim to set aside a contract on the ground of undue in- 
 fluence to show that the influence was directly employed 
 by another contracting party. It is enough to show that it 
 was employed by someone who expected to derive benefit 
 from the transaction, and with the knowledge of the other 
 party or under circumstances sufficient to give him notice 
 of it. The most frequent case is that of an ancestor or 
 other person in loco parent is inducing a descendant, etc., to 
 give security for a debt of the ancestor. But if the other 
 party does all he reasonably can to guard against undue 
 influence being exerted (as by insisting on the person in a 
 dependent position having independent professional advice), 
 and the precautions he demands are satisfied in a manner 
 he cannot object to at the time, the contract cannot as 
 against him be impeached (/>). 
 
 It appears to be at least doubtful whether a contract can 
 be set aside on the ground of influence exerted on one of 
 the parties by a stranger to the contract who did not expect 
 to derive any benefit from it (c) : except where the contract 
 
 {x) E.g. Executor: Ilmiicrv. At- 
 kin.s, 3 M. & K. ] 13 ; C'uiiitii v. Ac- 
 worth, 8 Eq. 5") 8. Assignee in 
 bankruptcy : Ford v. Olikit, 3 Eq. 
 4G1. Devisee: Gres/ei/ v. Mo/ish'i/, 
 4 De G. & J. 78. Heir : Jlolmini 
 V. Zoi/nrs, 4 D. M. G. 270. 
 
 (//) lluyuoiin v. Jhiselei/, 14 Ves. 
 273, 289. Cp. Molony v. Kcrnan, 
 2 Dr. & W. 31, 10. 
 
 {z) Cobbdt V. Jh-'jck, 20 Beuv. 
 
 524, 528. 
 
 {a) Mrtcnlfc's tr. 2 D. J. S. 122. 
 
 {b) Compare Cohbitt v. Brock, 20 
 Btav. 524, with lierdoe v. Dairton, 
 34 Beav. G03. As to what amounts 
 to notice, Maitlaiid v. BackliOKse, 
 IG Sim. oS ; Tottenham v. Grtoi, 
 32 L. J. Ch. 201. 
 
 {(■) lioUlcij V. Miickitij, 31 Bcav. 
 14.'!, 151. On priiici2)le the answer 
 should clearly be in the negative.
 
 CONFIRMATION AND ACQUIESCENCE. 595 
 
 is an arrangement between cestuis que trust claiming under 
 the same disposition, and the trustee puts pressure on one of 
 the parties to make concessions ; the ground in this case being 
 the breach of a trustee's special duty to act impartially [d) . 
 
 The right to set aside a contract originally voidable on Coufirma- 
 the ground of undue influence may be lost by express acmU-" 
 confirmation (r) or by delay amounting to proof of acqui- esoence. 
 escence (/). But any subsequent confirmation will bo 
 inoperative if made in the same absence of independent 
 advice and assistance which vitiated the transaction in the 
 beginning (g). This has been strongly stated in the judg- 
 ment of the Lords Justices in Moxoa v. Payne {h) : "Frauds 
 or impositions of the kind practised in this case cannot be 
 condoned ; the right to property acquired by such means 
 cannot be confirmed in this Court unless there be full 
 knowledge of all the facts, fall knowledge of the equitable 
 rights arising out of those facts, and an absolute release 
 from the undue influence by means of which the frauds 
 were practised. To make a confiimation or compromise of 
 any value in this Court the parties must be at arm's length, 
 on equal terms, with equal knowledge, and with sufficient 
 advice and protection." And delay which can be accounted 
 for as not unreasonable in all the circumstances is no bar 
 to relief (i). In short, an act "the effect of which is to 
 ratify that "^hich in justice ought never to have taken 
 place" ought to stand only upon the clearest evidence (./). 
 The effect of delay on the part of the person seeking relief 
 is also subject to a special limitation. In a case between 
 solicitor and client, or parties standing in any other con- 
 fidential relation, less weight is given to the lapse of time 
 than is due to it when no such relation subsists (/.•). 
 
 {(l) Ellis V. Barker, 7 Ch. 104. presence of an independent adviser 
 
 ((') Htiinip V. Gabij, 2 D. M. G. of the party confirmini;. if, in cdn- 
 
 623 ; Jlonc v. Royal, 12 Ves. 355. sequence of the coutiuuiufj iuHucuee 
 
 (/) ^Vright v. Vanderplank, 8 D. of the other party, his advice is iu 
 
 M. G-. 133; 147 ; Turner v. ColUns, fact disregarded: ib. 
 
 7 Ch. 329. (0 KcmpsoH v. Ashbcc, 10 Ch. 15. 
 
 {(/) Saicrij V. K'uig, 5 H. L. C. at [j) Morse v. lioi/al, 12 Ves. at 
 
 I). (i64. p. 374. 
 
 (//) 8Ch.8Sl, 885. And aeon- (A") Grcsleyy. Mousley, 4 De G. 
 
 finimtion will not be helped 1)V the & J. 78, 9(3. But even in a case 
 
 Q Q 
 
 >)
 
 596 
 
 DURESS AND UNDUE INFLUENCE. 
 
 Semhle, 
 no pre- 
 sumption 
 of undue 
 influence 
 where the 
 gain is 
 trifling. 
 
 Special 
 questions 
 as to rela- 
 tion of 
 solicitor 
 and client. 
 
 In tlie case of a deliberate confirmation after the relation 
 of influence has ceased to exist, it need not be shown that 
 the donor knew the gift to be voidable(/) : otherwise where 
 the alleged confirmation is connected with the original trans- 
 action and takes place under similar circumstances (w/). 
 
 An adoption of the instrument impeached for a particular 
 purpose (as by the exercise of a power contained in it) may 
 operate as an absolute confirmation of the whole {n). 
 
 It seems that the presumption of influence arising from 
 confidential relations is not to be extended to cases where 
 a merely trifling benefit is conferred (o). This is more 
 than a simple application of the maxim De minimis non 
 curat lex, for the transaction brought in question might be 
 in itself of great magnitude and importance, though the 
 advantage gained by one party over the other were not 
 large. Indeed the ease to which this principle seems most 
 likely to be aj)plicable is that of a transaction not of a com- 
 mercial natui'e, and on such a scale that the parties, dealing 
 fairly and deliberately, might choose not to be curious in 
 weighing a comparatively small balance of profit or loss. 
 
 As regards the relation between solicitor and client, it 
 is a question whether there is not an inflexible rule of 
 public policy against the solicitor taking a gift from the 
 client, irrespective of any presumj)tion of influence. Such 
 a rule, if it exists, is outside the law of contract altogether. 
 It would apply only during the actual continuance of the 
 relation : and the mere fact that A. has been B.'s solicitor 
 would not raise a presumption against an act of bounty 
 from B. to A. after that relation had been fully deter- 
 mined. But the subject has never been authoritatively 
 discussed, with regard to the supposed distinction, in a 
 Court of Appeal ; and existing authorities (;;) can hardly 
 be deemed conclusive. 
 
 between solicitor and client a delay 
 of eighteen years has been held 
 fatal ; CJinmpion v. liiffbi/, 1 Euss. 
 & M. 5;39. 
 
 (/) Milchdl V. JIvynfrav, C. A., 8 
 Q. B. D. 587. 
 
 [m) Kemp8on v. Anhbce, 10 Ch. 15. 
 
 {)i) Jarratt v. Aldam, 9 Eq. 463. 
 
 (o) Per Turner, L. J., Rhodes v. 
 Bate, 1 Ch. at p. 258. 
 
 (/;) SeeMori/any.Minett CCh.D. 
 638,
 
 ( 507 ) 
 
 CHAPTER XII. 
 
 Agreements or Imperfect Obligation. 
 
 Under this head we propose to deal vdih. topics of a mis- Nature of 
 cellaneous kind as regards their subject-matter, and forming obU^a^-'^^^* 
 anomalies in the general law of contract, but presenting in tions. 
 those anomalies some remarkable uniformities and analo- 
 gies of their own. 
 
 Between contracts which can be actively enforced by the 
 persons entitled to the benefit of them, and agreements or 
 promises which are not recognized as having any legal 
 effect at all, there is another class of agreements which 
 though they confer no right of action are recognized by 
 the law for other pm-poses. These may be called agree- 
 ments of imperfect obligation. Some writers (as Pothier) 
 speak of imperfect obligations in the sense of purely moral 
 duties which are wholly without the scope of law : and 
 wliat we here call Imperfect Obligations are in the civil 
 law called Natural Obligations. But this term, the use of 
 which in Roman law is intimately connected with the dis- 
 tinction between iifs civile and ius genfii())i (a), would be 
 inappropriate in English. 
 
 Where there is a perfect obligation, there is a right How pro- 
 coupled with a remedy, i. c. an appropriate process of law 
 by which the authority of a competent court can be set in 
 motion to enforce the right. 
 
 Where there is an imperfect obligation, there is a right 
 without a remedy. This is an abnormal state of things, 
 making an exception whenever it occurs to the general law 
 
 («) Savigny, Obi. 1. 22, sqq. For law see Prof. Miiirhead's note on 
 a summary statement of the effects Gai. 3. 119 a. 
 of a natural obli station in Roman
 
 598 AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 expressed in the maxim Ubi ins ihi rcmedhun. And it can 
 Le produced only by the operation of some special rule of 
 positive law {b). Such rules may operate in the following 
 ways to produce an imperfect obligation : 
 
 1. By way of condition subsequent, taking away a 
 remedy which once existed. 
 
 2. I3y imposing special conditions as precedent to the 
 existence of the remedy. 
 
 3. By excluding any remedy altogether. 
 
 We shall now endeavour to show what are the effects of 
 an imperfect obligation in these three classes of cases. 
 
 1. Remedy 1, Under the first head we have to notice the operation 
 Statutes of ^f the Statutes of Limitation, so far as it illustrates the 
 Limita- present subject {(■). The statute of limitation of James I. 
 (21 Jac. 1, c. 16, s. 3) enacts that the actions therein 
 enumerated — wbich, with an exception since repealed, 
 comprise all actions on simple contracts {d) — " shall be 
 commenced and sued " within six years after the cause of 
 action, and not after. By the modern statute 3 & 4 
 "Wm, 4, c. 42, s. 3 (r), following the presumption of satis- 
 faction after the lapse of twenty years which already 
 obtained in practice (/), it is enacted that {i)der alia) all 
 actions of covenant or debt upon any bond or other 
 
 {h) It was once held tluit a purely tliis point But an infant's contract 
 
 moral obligation might give rise to is in its inception not of imperfect 
 
 an inchoate right wldch could bo obligation, but simply voidable, 
 
 made binding and enforceable by an [d] As to the extent to which 
 
 express promise. And if this were the statute applies to proceedings 
 
 so the st itement in the text would in equity see Kiiux v. Gye, L. K. 
 
 not be correct: but the modern 5 H. L. 656. 
 
 authorities disallow such a doctrine. {e) This section is not affected by 
 
 See 2 Wms. Saund. 428 ; supra, the Real Properly Limitation Act, 
 
 p. 169. 1874, except that proceedings to 
 
 ((■) Debts contracted by an infant recover rent or money charged on 
 
 are often compared to debts barred land will have to be taktn within 
 
 by the statutes of limitation: and 12 years: 37 & 38 Vict. c. 57, 
 
 the comparison is j List to this extent, ss. 1 , 8. 
 
 that at conuiiOM law they might be (,/') Bac. Abr. 5. 226 (Limitation 
 
 rendered enforceable in much the D. 1); liuddam v. Morky, 1 De G. 
 
 same manner, and practically the & J. 17. 
 authorities are interchangeable on
 
 DEBTS BARllKI) HY STATUTE. 599 
 
 speciality " sliall be commenced and sued" within twenty 
 years of the cause of action. We need not stop to consider 
 the excojitions for disahility, or the rules as to the time 
 from Avbich the statutes begin to run : for the object 
 throughout this ehnpter will not be to define to what 
 cases and under what conditions the laws under considera- 
 tion apply, when that is abundantly done in other treatises, 
 but to observe the general results which follow when they 
 do apply. 
 
 Now there is nothing in these statutes to extinguish an The right 
 obligation once created. The paity who neglects to en- 
 force his right by action cannot insist upon so enforcing it 
 after a certain time. But tlie right itself is not gone. It 
 is not correct even to say without qualification that there 
 is no right to sue, for the protection given by the statutes 
 is of no avail to a defendant unless he expressly claims it. 
 Serjeant Williams, after noticing the earlier conflicts of 
 opinion on this point, and some unsatisfactory reasons 
 given at different times for the rule which has prevailed, 
 concludes the true reason to be that " the Statute of Limi- 
 tations admits the cause or consideration of the action still 
 existing, and merely discharges the defendant from the 
 remedy " (g). This alone shows that an imperfect obliga- 
 tion subsists between the parties after the time of limita- 
 tion has run out. In the case of unliquidated demands 
 that obligation is practically inoperative, since an unliqui- 
 dated demand cannot be rendered certain except by action 
 or an express agreement founded on the relinquishment of 
 an existing remedy. But in the case of a liquidated debt 
 the continued existence of the debt after the loss of the 
 remedy by action may have other important effects. 
 Although the creditor cannot enforce payment by direct Results, 
 process of law, he is not the less entitled to use any other rights of 
 
 {y) 2 Wms. Saiind. 163; cp. statute. The rule continues under 
 
 Scarpcllitii v. Atchcson, 7 Q. B. at the new practice, Order XIX. r. 
 
 p. 878, 14 L. J. Q.B. at p. 338, on 15. 
 the technical effect of a plea of the
 
 600 
 
 AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 creditor 
 preserved. 
 
 Acknow- 
 ledgment 
 by debtor. 
 
 means of obtaining it wliicli he might lawfully have used 
 before. Thus if he has a lien on goods of the debtor for 
 a general account, he may hold the goods for a debt barred 
 by the statute {/i). And any lien or express security he 
 may have for the particular debt remains valid («). If 
 the debtor pays money to him without directing appro- 
 priation of it to any particular debt, he may appropriate 
 it to satisfy a debt of this kind (/.•) : much more is he en- 
 titled to keep the money if the debtor pays it on account 
 of the particular debt, but not knowing, whether by 
 ignorance of fact or of law, that the creditor has lost his 
 remedy. So an executor may retain out of a legacy a 
 barred debt owing from the legatee to the testator (/). He 
 may also retain out of the estate such a debt due from the 
 testator to himself : and he may pay the testator's barred 
 debts to other persons {»i) : and this even if the personal 
 estate is insufficient (//). But though a creditor may retain 
 a barred debt if he can, he may not resist another claim of 
 the debtor against him by a set-off of the barred debt : 
 for the right of set-off is statutory, and introduced merely 
 to prevent cross actions, so that a claim pleaded by way of 
 set-off is subject to be defeated in any way in which it 
 could be defeated if made by action (o). This reason 
 applies equally to all other cases of imperfect obligations. 
 Herein our law differs from the Roman, in which comjjen- 
 satio did not depend on any positive enactment, but was 
 an equitable right derived from the ius gentium. 
 
 Again, the creditor's lost remedy may be revived by the 
 act of the debtor. The decisions on the statute of James I. 
 have established that a renewed promise to pay, or an 
 
 {h) Spears v. Hartly, 3 Esp. 81. 
 
 (i) llifigins v. Scott, 2 B. & Ad. 
 413; Seagcr v. Aston, 26 L. J. 
 Ch. 809 (on the statute of 3 & 4 
 Wm. 4). 
 
 (/■,•) 3lills V. FoivJces, 5 Bing. N. C. 
 455 ; Naah v. Hodgson, 6 D. M. G. 
 474. 
 
 (/) Courtoiag v. Williams, 3 Ha. 
 
 539 ; cp. Eosev. Gould, 15 Beav. 189. 
 
 {m) Hill V-. H^alker, 4 K. & J. 166 ; 
 Stahlschmidt v. Lett, 1 Sm. & G. 
 415. 
 
 {u) Lowis V. Jiumfir!/, 4Eq. 451. 
 
 (o) The defence of set-off must 
 be specially met by re[)lyuig the 
 statute of limitation, see 1 Wms. 
 Saund. 431.
 
 ACKNOWLEDGMENT OF BARKED DEBTS. 601 
 
 acknowledgment from whicli a promise can be inferred, 
 excludes the operation of the statute. It was formerly 
 held that the statute rested wholly on a presumption of 
 payment, and therefore that any acknowledgment of the 
 debt being unpaid, even though coupled with a refusal to 
 pay, was sufficient. But this opinion has long since been 
 overruled (p). The rule has been explained thus. It is 
 settled law that a state of facts on which there is an exist- 
 ing and complete legal liability is of itself no ground for a 
 fresh promise to satisfy the same liability : thus an express 
 promise to pay the sum due on an account stated creates 
 no new cause of action, there being already in contempla- 
 tion of law a promise to pay on request ('■/). But in the 
 case of a barred debt this reason for a new ^iromise being 
 inojierative does not exist : the original remedy is gone, 
 while the original consideration remains as a sufficient 
 foundation for a subsequent promise. Since the acknow- 
 ledgment operates, according to the modern view, as a new 
 promise, it is not effectual unless made before the com- 
 mencement of the action {>•). 
 
 The modern law has been concisely stated by Mellish, L. J. What is 
 " There must be one of three things to take the case out of a^(!^"w * 
 the statute. Either there must be an acknowledgment of ledgment. 
 the debt, from which a promise to pay is to be implied ; or 
 secondly, there must be an unconditional promise to pay 
 the debt ; or thirdly, there must be a conditional promise 
 to pay the debt, and evidence that the condition has been 
 performed" (.s-). The promise must be to pay the debt as 
 
 (p) 2 Wms. Satmd. 183, 184. (,s) Mitchcirs claim, 6 Cli. at p. 
 
 [q] Hopkins v. Logan, 5 M. & W. 828. And see Wilhyw.EIgce, L. K. 
 
 24 ; for another instance see JDcacon 10 C. P. 497 ; Chasemore v. Tamer 
 
 V. Gridlcj, 15 C. B. 295, 24 L. J. (Ex. Ch.), L. R. 10 Q. B. 500, 506, 
 
 C. P. 17. 510, 520,andthelatercaseof J/(.y«-- 
 
 (»•) Bateman v. Finder, 3 Q. B. hoffy. Frohlich, 3 C. P. D. 333, in 
 
 574, 11 L. J. Q. B. 281. But tlie C. A., 4 C. P. D. 63, which also 
 
 explanation is not satisfying, since show how much difficulty there may 
 
 the consideration for the new pro- be in detennining in a particular 
 
 mise is wholly past, and therefore case whether there has been an un- 
 
 insufficient according to modem conditional promise ; Quinccg v. 
 
 doctrine. See p. 170, above. Sharpc, 1 Ex. D. 72, Sheet v. Lind- 
 say, 2 Ex. D. 314.
 
 602 
 
 AGKEEMENTS 01' IMPEHFECT OliEKiATION. 
 
 Statutory 
 
 provision 
 
 for ac- 
 
 kuowledg- 
 
 meLit of 
 
 specialty 
 
 debts. 
 
 Stat, of 
 Limitation 
 as to real 
 property : 
 rifrlu as 
 well as 
 remedy 
 taken 
 away. 
 
 English 
 
 statutes of 
 
 liiiiitatiou, 
 
 and 
 
 anMlogouH 
 
 foi'eiga 
 
 laws 
 
 affecting 
 
 cx drhlfo inHfitidc ; a promise to pay m a Jeht of honour is 
 insufficient, as it excludes the admission of legal liability (if). 
 When the promise is implied, it must be as an inference of 
 fact, not of law ; the payment of interest under compulsion 
 of law does not imply any promise to pay the principal («). 
 
 The acknowledgment or promise, if express, must be in 
 ■waiting and signed by the debtor (9 Geo. 4, c. 14, s. 1) or 
 his agent duly authorized (Mercantile Law Amendment 
 Act, 1856, 19 & 20 Yict. c. 97, s. i;]). But an acknow- 
 ledgment may still be implied from the payment of interest, 
 or of part of the principal on account of the whole, without 
 any admission in writing (x). 
 
 The more recent statute which limits the time for suing 
 on contracts by specialty contains an express proviso as to 
 acknowledgment and part payment (3 & 4 Wm. 4, c. 42, 
 s. 5) (//). The cases as to acknowledgment, &c. under the 
 statute of James, and Lord Tenterden's Act, are not applic- 
 able to this proviso. Here the operation of tne acknow- 
 ledgment is independent of any new promise to pay, and 
 the action in which the acknowledgment is to be operative 
 must be founded on the original obligation alone {z). 
 
 The Act for the Limitation of Actions and Suits relating 
 to Real Property (3 & 4 Wm. 4, c. 27) does not only bar 
 the remedy, bat extinguishes the riglit at the end of the 
 period of limitation : (s. 34, see Dart V. & P. 402). It is 
 therefore unconnected with our present subject. 
 
 We have seen that by the operation of the statutes of 
 limitation applicable to contracts the right itself is not 
 destroyed, but only the conditions of enforcing it are 
 affected. The law of limitation is a law relating not to 
 the substance of the cause of action, but to procedure. 
 Hence follows a consequence which is important in private 
 
 {I) Maccordv. Osborne, 1 C. T. D. 
 .5CS (on Lord Tenterden's Act). 
 
 {i() Morf/an V. llonUuids, L. R. 7 
 Q. 13. 493, 498. 
 
 {x) 2 Wms. Saund. 181, 187, see 
 also the notes to Whitcomby. Whif- 
 
 i))g, 1 Sm. L. C. 
 
 [ii) See rmmy. Laivg, 12 Eq. 41. 
 
 (:) Rudihim V. Morlcy, 1 De G. 
 & J. 1, opinion of Williams and 
 Crowder, JJ. at p. 15.
 
 CONFLICT OF LAMS AS TO LIMITATION. C03 
 
 international law, namely that these enactments belong to thoremcdy 
 the lex fori, not to the lex contraction, and are binding on all treated as 
 persons who seek their remedy in the courts of this country. P'lrt of 
 A suitor in an English court must sue within the time 
 limited by the English statute, though the cause of. action 
 may have arisen in a country whore a longer time is 
 allowed {((). Conversely, an action brouglit in an English 
 court within the English period of limitation is maintain- 
 able altliough a shorter period limited by the law of the 
 place where the contract was made has elapsed, oven if a 
 competent court of that place has given judgment in favom^ 
 of the defendant on the ground of such period having 
 expired (b). And for this purpose a document under seal 
 has been treated by an English com-t as creating a specialty 
 debt, though made in a country where our distinction 
 between simple contract and specialty debts does not exist, 
 and more than six years before action brought (c). 
 
 The House of Lords, as a Scotch court of appeal, has 
 had to decide a similar question as between the law of 
 Scotland and the law of France. It was held that the 
 Scottish law of prescription applied to an action brought 
 in Scotland on a bill of exchange di-awn and accejited in 
 France, the right of action on which in France had been 
 saved by judicial proceedings there (r/). In the case where 
 the shorter of the two periods of limitation is that allowed 
 by the foreign law governing the substance of the contract, 
 and that period has elapsed, it is of course necessary to 
 
 (fif) British Linen Co. v. Dm n- (c) Alliance Bank of Simla v. 
 
 mond, 10 B. & C. 903. Carey, 5 C. P. D. 4^9 (a bond exe- 
 
 [b) Ilnbery. Steiner,2'Bmg.'N.C. cuted in Biitisli ludia). Possibly 
 202 (debt barred by French law : the use by British saujccts of au 
 Harris v. Qaine, L. K. 4 Q. B. 653 English form, uumem.ng- at the 
 (debt barred by Manx law) : in the place of execrition, may justify the 
 latter case Cockburn, C. J., ex- inference that they at the time in- 
 pressed some doubt as to the prin- tended the dociunent to operate as 
 ciple, admitting however that the an English deed. Otherwise the 
 rule was settled by authority : Sa- decision seems not easy to support, 
 vigny too (Syst. 8. 273) is for ap- {d) Don -v. Zippinann, 5 Cl.iicE. 1. 
 plying that law which governs the See also 2 Wms. Samid. 3"J9. 
 substance of the contract.
 
 604 AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 ascertain that the foreign law is analogous to our own in 
 its operation, and merely takes away the remedy without 
 making the contract void at the end of the time of pre- 
 scription. But it is considered that an actual destruction 
 of the right would be so inconvenient and unreasonable 
 that it may almost be presumed that such is not the 
 operation of the law of any civilized state ; and the 
 English courts would not put such a construction on 
 the foreign law unless compelled so to do by very strong 
 evidence (f/). 
 
 "We shall presently see that analogous questions con- 
 cerning the lex fori may arise in other cases of imperfect 
 obligations. 
 
 2. Condi- 2. Under the second head fall the cases of particular 
 cedent'to' classes of contracts where the law requires particular acts 
 remedy, to be done by the parties or one of them (in respect of the 
 of Frauds, form of the contract or otherwise) as conditions precedent 
 ^- ^- to the contract being recognized as enforceable. 
 
 A. The most important of the enactments thus imposing 
 special conditions on contracts is the fourth section of the 
 Statute of Frauds (29 Car. 2, c. 3). 
 
 The fourth section enacts that after the date there men- 
 tioned 
 
 "no action shall be brought whereby to charge any executor or adminis- 
 trator upon any special promise to answer damages out of his own estate ; 
 or whereby to charge the defendant upon any special promise to answer 
 for the debt, default, or miscarriages of another person ; or to charge any 
 person upon any agreement made upon consideration of man-iage ; or 
 upon any contract or sale of lands, tenements, or hereditaments, or any 
 interest in or concei'ning them ; or upon any agreement that is not to be 
 performed within the space of one year from the making thereof ; unless 
 the agreement upon which such action shall be brought or some memoran- 
 dum or note thereof shall be in writing, and signed by the party to be 
 charged therewith or some other person thereunto by him lawfully 
 authorized." 
 
 (<■/) Iluher V. Steiner, 2 Bing. French law of prescription the right 
 N. C. 202, where it was in vain was absolutely extinguished, 
 attempted to show that by the
 
 STATUTE OF FRAUDS. 605 
 
 The terms of the 17th section (IGth in the Revised 
 Statutes) are different. It does not only prevent contracts 
 for the sale of goods of the value of 10/. or upwards (Lord 
 Tenterden's Act, 9 Geo. 4, c. 14, s. 7, has the effect of 
 substituting " value " for " price ") (<?) from being sued 
 upon excejjt under the conditions specified, but enacts 
 that they shall not "be allowed to be good" : and it has 
 been thought that where the conditions are not satisfied 
 the agreement is absolutely void as against the party who 
 has not signed (,/'). But the weight of recent opinion is 
 in favour of holding that, notwithstanding the difference 
 of language, the 17th section, like the 4th, is only a law 
 of procedure {(/). There is no positive decision on the 
 point. The ca^es of part acceptance of the goods or part 
 payment of the price are expressly provided for, either of 
 these having the same effect as a duly made memorandum 
 in writing. 
 
 We now retm*n to the fourth section. For the sake of Effect of 
 brevity we shall use the term "informal agreement" to sometime 
 signify any agreement which comes within this section and not settled. 
 does not comply with its requirements. 
 
 For some time it was not fully settled what was the 
 effect of this enactment on informal agreements. There 
 was some authority for saying it made them void. It was 
 never held necessary in the courts of law for a defendant 
 sued on an informal agreement to plead the statute 
 specially, as in the case of the statutes of limitation : and 
 it has been held (before the C. L. P. Act) that a special 
 
 (<) JIannan v. Reeve, 18 C. B. v. Alderson, 8 App. Ca. at p. 488 ; 
 
 587, 595, 25 L. J. C. P. 257. Brett, L. J. in Britain v. Rossitcr, 
 
 (/) "Wliere one party lias signed 11 Q. B. D. at p. 127. Cp. judg- 
 
 and the other not, the contract is nient of Williams, J. in Bailcij v. 
 
 said to be good or not at the elec- Sivccting, 9 C. B. N. S. 843, 859, 
 
 tion of the party who has not 30 L. J. C. P. 150, 154 ; and see 
 
 signed — i. e. he may sue the other Anson, 66, and an article in 9 Am. 
 
 who has signed, though the other Law Rev. 435. The supposed dis- 
 
 cannot sue him. Benjamin on tinction between the two sections 
 
 Sale, 219. This is also the case is pointedly taken in Laythoarp v. 
 
 under s. 4 : Laythoarp v. Bryant, Bryant, 2 Bing. N. C. 735, 747, and 
 
 2 Bing. N. C. 735. Leroux \. Brown, 12 C. B. 801, 824, 
 
 {g) Lord Blackburn in Maddisou 826.
 
 606 AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 plea was not only unnecessary but bad as an " argumenta- 
 tive denial" of the contract declared upon (//). Moreover 
 an action cannot be maintained when, although it is not 
 brought to enforce any right ex contractu, the right which 
 is the foundation of the plaintiff's claim depends on an 
 informal agreement. In Carrington v. Roots (/) the plain- 
 tiff sued in trespass for seizing his horse and cart : the 
 defendant pleaded that they were incumberiog and doing 
 damage on his ground : the plaintitf replied a verbal 
 agreement that the defendant should sell the crop and 
 grass growing there to the plaintiff, and that the plaintiff 
 might enter with his horse and cart to take them. It was 
 held that this agreement was for the sale of an interest in 
 land within s. 4, and that the plaintiif could not set it up, 
 though it might have been available, as a licence only, in 
 answer to an action for trespass (A-). Both here and in the 
 later case of Reads v. Lamb above cited the judges said 
 distinctly enough that informal agreements were not only 
 not enforceable but void. And so Sir W. Grant appears 
 to have thought in Raiulall v. Morg-tn (/). These dicta 
 are not consistent with the decisions to be presently men- 
 tioned in which the existence of an imperfect obligation is 
 implied. And there had also been judicial expressions of 
 opinion the other way. But it is not necessary to notice 
 these, for the point was expressly decided by the Coui't of 
 Common Pleas in Lcroux v. Brown [m), where the earlier 
 De(>ision dicta are also considered. The action was on a contract 
 ^v BrowiT- ^*^^ ^^ ^® performed within one year, and made in France, 
 apri-eement where by the French law the plaintiff might have sued 
 but only on it. For the plaintiff it was argued that s. 4 of the 
 
 (/;) Reader. Lnnih, G Ex. 130, 20 out further repetition at any subse- 
 
 L. J. Ex. IGl. Since the Judicature qucnt stage of the proceedings : ib. 
 
 Acts the defence of the statute must (*) 2 M. & W. 2-18. 
 
 always be distinctly raised on the (/.) Cp. Crosbij v. iradnworth, 6 
 
 jjleadings. Order XIX. r. 15, op. East CU2. 
 
 r. 20. As to the former practice in (/) 12 Ves. at p. 73. 
 
 equity see Juhnasson v. Bunhote (C. {m) 12 C. B. 801, 22 L. J. C.P. 1 ; 
 
 A.) 2 Ch. D. 298. Once properly and see per Lord Blackburn in ^1/rtr/- 
 
 ruised the defence is available with- dison v. Alderson, nbi sup.
 
 INFORMAL AGREEMENTS UNDER STATUTE OF FRAUDS. 607 
 
 Statute of Frauds applied to the substance of the contract, not cn- 
 and therefore, on general principles of private international f^i'^^-'^^^^^- 
 law, did not affect contracts which were made out of Eng- 
 land, and which as to their substance were to be governed 
 by the law of the place where they were made. But for 
 the defendant it was answered that this enactment, like 
 the Statute of Limitation, only affected the remedy, and 
 was therefore a law of the procedure of the English courts, 
 and as such binding on all suitors who might seek to enforce 
 their rights in those courts : the agreement might be good 
 enough for any other purpose, but the plaintilf could not 
 sue on it in England. And this view was adopted by the 
 court. Jervis, C. J. said : " The statute in this part of it 
 does not say that unless those requisites are complied with 
 tlic contract shall be void, but merely that no action ^hall he 
 brought upon it. . . . The fourth section relates only 
 to the procedure and not to the right and validity of the 
 contract itself." It will be observed that the plaintiff was 
 here in the curious position of contending, in order to sup- 
 port his right to recover on a contract made in France, that 
 it would have been absolutely void if made in England {)>). 
 The decision in Lcroux v. Broicn, taken together with the 
 reasoning by which it was arriA^ed at, seems to involve the 
 following propositions as corollaries : 
 
 (a) A foreign or colonial court would enforce an English 
 agreement, notwithstanding that it was informal under 
 s. 4 of the Statute of Frauds, if it had the general re- 
 quisites of a valid contract in English law, and was not 
 informal according to the local law of procedure. 
 
 (/3) An English court would enforce a foreign agreement, 
 if enforceable by the foreign law applicable to the substance 
 of the agreement, notwithstanding that if made in England 
 it might have been held void under s. 17. (This would not 
 be inconsistent with Ilojyc v. 1102)0 (o), which only shows 
 
 («) Lcroux V. Brown, was doubted just seen that the assumption as to 
 
 by Willes, J. in WilliMms, app. the ettect of s. 17, which, however, 
 
 Wh.eler, resp. 8 C. B. N. S. 29!), is not necessary to the decision, is 
 
 ;>16. Saviguy, Syst. 8. 270, also not now generally accepted, 
 takes the opposite view. Wo have {(>) 8 D. M. G-. 731, 7-10, 743.
 
 608 AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 that English courts will not enforce any contract, to what- 
 ever law it should be referred, which contains " any 
 material provision tending directly to infringe within 
 England the policy of the English law " : the expression 
 of Turner, L. J., that a contract must he " consistent with 
 the laws and policy of the country in which it is sought to 
 be enforced" means, as appears by the context, nothing 
 more extensive. The agreement there in question was 
 made in France between an Englishman and his wife, and 
 provided in effect for the collusive conduct of a divorce 
 suit in England.) 
 
 It was even argued in one recent case that the words 
 " no action shall be brought " confine the operation of the 
 statute to civil process, so that an informal agreement for 
 service not to be performed within a year might be enforced 
 by criminal process under the Master and Servant Act, 
 lcS67. But the Court held that such a construction would 
 be too unreasonable, and the statute must mean that in- 
 formal agreements are not to be enforced in any way (/;). 
 
 Kesiilts of j^ being established that the informal agreements we are 
 
 imperfect . , . • t • p tt it 
 
 oblitration Considering are not void, it follows that they give rise to 
 of^statiite ii^perfect obligations. "We will now indicate the results, 
 of Frauds. "We have seen that neither the obligation itself, nor any 
 right immediately founded on it, can be dii-ectly enforced. 
 But it is recognized for the purpose of explaining anything 
 actually done in pursuance of it, and anything so done may 
 in many cases be a good consideration for a new obligation 
 on a subsequent and distinct contract, or a sufficient founda- 
 tion for a new obligation quasi ex contractu. 
 
 ^^ t° A. Money paid under an informal agreement cannot be 
 
 money \ i 
 
 paid, recovered back merely on the ground of the agreement not 
 
 {p) JicoiIiS V. Crossland, L. R. 10 tract iu particular cases which are 
 Q. B. 97. The Act is now repealed made substantive offences by the 
 by the Employers .and Workmen Conspiracy and Protection of Pro- 
 Act, 1875, :]8 & 39 Vict. c. 90. Qh. porty Act, 1875, 38 & 39 Vict, 
 whether the decision be applicable c. 86. 
 to the maliciuus breaches of con-
 
 MONEY PAID UNDER INFORMAL AGREEMENTS. 609 
 
 being enforceable. Thus if a responsibility has been assumed 
 and executed under a verbal guaranty, the guarantor can- 
 not recover back the money paid by him {q) . So a purchaser 
 cannot recover a deposit paid on an informal agreement 
 for the sale of land, the vendor remaining ready and willing 
 to complete (r). And not only can the one party keep 
 money actually paid to him by the other, but if money is 
 paid by A. to B. in order to be paid over to C. in pursuance 
 of an informal agreement between A. and C. which C. has 
 executed, then C. can recover it as money received to his 
 use. In Griffitli v. Youmj (.v) the plaintiff was the defen- 
 dant's landlord. The defendant wished to assign to one 
 P., which he could not do without the plaintiff's consent. 
 It was verbally agreed that P. should pay the defendant 
 100/. for goodwill, out of which the defendant was to pay 
 40/. to the plaintiff for his consent to the assignment. P. 
 knowing of this agreement paid the 100/. to the defen- 
 dant : it was held that the defendant was liable to the 
 plaintiff for 40/. in an action for money received to his 
 use. Lord Ellenborough said : " If one agree to receive 
 money for the use of another upon consideration executed, 
 however frivolous or void the consideration might have 
 been in respect of the person paying the money, if indeed 
 it were not absolutely immoral or illegal, the person so 
 receiving it cannot be permitted to gainsay his having 
 received it for the use of that other." 
 
 On the same principle, if on the faith of an informal 
 agreement money has been paid in advance to a party who 
 afterwards refuses or fails to perform his part of it, or has 
 been expended on his account, it is conceived that proof of 
 the agreement may be admitted to show what was in fact 
 the consideration which has failed {i) . 
 
 B. The execution of an informal agreement may be ^^ *° 
 
 agreemeut 
 executed. 
 ((/) Shaw V. Woodcock, 7 B. & C. 714. 
 73, 83, 84. Cp. Sweet v. Lee, 3 M. (*■) 12 East 513. 
 
 & Gr. 452. (<) See FulUmmk v. Laiccs, 1 Q. 
 
 ()•) Thomas v. lirowv, 1 Q. B. D. B. D. 284. 
 
 r. K U
 
 610 AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 sliown as a fact, and the party wlio Las liad some benefit 
 from sucli execution, so as in fact to get what he bargained 
 for, cannot treat the bargain as a nullity. Thus the de- 
 livery of possession under an informal agreement for the 
 sale of land is a good consideration for a promissory note 
 for the balance of the purchase-money {u) . It was held in 
 the case cited that the bargain was for a future conveyance, 
 and that the defendant, who did not deny the plaintiffs' 
 allegation that they were willing to convey, had got all he 
 bargained for. 
 
 The same holds of an account stated. In Cocking v. 
 IFard (,r) there was an oral agreement by an incoming 
 tenant from year to year to pay 100/. to the outgoing 
 tenant : it was held that the agreement was within s. 4 of 
 the statute, and the outgoing tenant could not recover the 
 100/. on the agreement itself, but that on an account 
 stated he could. 
 
 Again, money due simply under an informal agreement 
 from the plaintiff to the defendant cannot of course be set 
 off ; but the performance of an informal agreement by the 
 defendant may be good as an accord and satisfaction. In 
 Lavcr// v. Turk// {//) the plaintiff sued for goods sold, &c. : 
 the defendant pleaded an equitable plea showing that in 
 pursuance of an agreement between the parties (which 
 turned out to be verbal) the defendant had given up to 
 the plaintiff possession of a house and premises in satisfac- 
 tion of the causes of action sued upon. The plea was held 
 good, and it seems it was good enough at law (per Bram- 
 well and Channell, BB.) . Pollock, C.B. said : " It is pleaded 
 as a fact that the defendant performed the agreement and 
 the plaintiff accepted such performance in satisfaction. 
 The objection that the agreement was not in writing is 
 got rid of. The fourth section of the Statute of Frauds 
 does not exclude unwritten proof in the case of executed 
 
 («) Jones V. Jones, 6 M. & W. 84. (y) 6 H. & N. 239, 30 L. J. Ex. 
 
 {x) 1 C. B. 858, 15 L. J. C. T. 49. 
 245.
 
 PART PERFORMANCE. 611 
 
 contracts " (s) . This of course does not mean that the 
 agreement itself can in any case be sued upon (;:). 
 
 c. It is a well-known doctrine of equity that one who has As to part 
 partly performed an informal agreement for the purchase ance In' 
 or hiring of land (a) is entitled to and can sue for a specific equity, 
 perfonnance at the hands of the other party, if the acts of 
 part perfonnance have been done on the faith of an exist- 
 ing agreement, and have been of such a kind that the 
 parties cannot be restored to then* original position, and if 
 the existence of an agreement is reasonably to be inferred 
 from the acts themselves, or they are " unequivocally 
 referable to the contract" (/>). This seems to be the real 
 meaning of the distinctions as to what is or is not a suffi- 
 cient part performance (e). Payment of money is in itself 
 an equivocal act, and therefore the part payment of pur- 
 chase-money is not a sufficient part performance (d). But 
 payment of increased rent by a yearly tenant holding over 
 has been held a sufficient part performance of an agreement 
 for a lease {e). Here the part performance consists not in 
 the payment itself, but in a possession which, though con- 
 tinuous in time with the old possession of the plaintiff as 
 yearly tenant, is shown to be in fact referable to some new 
 agreement (/). This doctrine of part performance is not 
 
 (s) Cp. Souch V. Strawdridge, 2 Bag-gallay, L. J. in Ilumplivois v. 
 
 C. B. 808, 814, 15 L. J. C. P. 170, Green, \\ Q. B. D. at p. 156 ; 
 
 and remarks on the dictum there in Brett, L. J. took a different view, 
 
 Sanderson v. Graves, L. E. 10 Ex. and could not accept Xioni v. Fa- 
 
 234, 238, 241. bian, ib. p. 160. 
 
 {a) The doctrine is not extended (/) On the general theory of 
 
 to other transactions, Britain v. jiossession as constituting part per- 
 
 jRossiter, G. A. 11 Q. B. D. 123, forniance see per Jessel, M. R. 
 
 131. Vnghji v. Ungleij, 5 Ch. D. at p. 
 
 (J) Maddison y. Alderson, 8 App. 890: " The reason is that possession 
 
 Ca. at p. 476; Bell's Princii^les, by a stranger is evidence that there 
 
 479, cited by Lord Selbomo, ib. at was some contract, and is such 
 
 p. 477. cogent evidence as to compel the 
 
 (c) See the authorities collected Court to admit evidence of the 
 
 Dart V. & P. 2, 1023. temis of the contract in order that 
 
 {d) Lord Selborne, 8 App. Ca. at justice may be done between the 
 
 p. 479. parties" ; to same eifcct Cotton 
 
 {e) Kami v. Fabian, 1 Ch. 35. L. J. in Britai)i v. Eossitcr, 11 
 
 See explanation of that case by Q. B. D. at p. 131. 
 
 R 11 
 
 O
 
 612 AGREEMENTS OF IMPERFECT OBLIGATION, 
 
 in direct contradiction of the Statute of Frauds. It would 
 be erroneous to say that a court of equity accepts proof of 
 an oral agreement and part performance as 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 invalidity of an 
 agreement on the faith of which he has induced or allowed 
 the other party to alter his position {g). In the law of 
 Scotland such facts are said to "raise a personal excep- 
 tion" (Ji). The same principle of equity is carried out in 
 cases of representation independent of contract (see p. 615, 
 below) and even of mere acquiescence. In equity an owner 
 may be estopped by acquiescence from asserting his rights, 
 although there has not been any agreement at all {i) . This 
 also explains why the plaintijff must show pai^t performance 
 on his own side, and part performance by the defendant 
 would be immaterial (/.') . 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 that agreement, it proceeds to ascertain by 
 the ordinary means what the terms of the agreement were. 
 The proof of this is strictly collateral to the main issue, 
 though the practical result is that the agreement is enforced. 
 
 -Ajite- P. The case of an agreement in consideration of marriage 
 
 presents special difficulties, and has to be treated in an ex- 
 
 agree - 
 
 meuts. 
 
 [g) CatoH V. Caton, 1 Ch. at p. authorities cIo not exhibit a very 
 148, Morphctt v. Junes, 1 Swaust. at definite or settled theory. 
 p. 181, Bale v. Hamilton, 5 Ha. at {h) Bell, cited by Lord Selbome, 
 p. 381; accordingly the cases on 8 App. Cas. 476. 
 estoppel at law are compared by (i) See Ramsden v. Dyson, L. E. 
 Lord Cranworth in /o/v/t'M V. 7l/e^«r//, 111. L. 129, 140, 168; Powell y. 
 5 H. L. C. 185, 213, and by Lord Thomas, 6 Ha. 300; and the re- 
 Campbell in Figgoit v. Slratton, 1 marks of Fry, J. in Willmott v. 
 D. F. J. 33, 49. It must be ad- Barhev, 15 Ch. D. 96, 105. 
 mitted, however, that the recent (A) Vaion v. Caton, supra.
 
 AGREEMEM'.S IN CONSIDKH ATION OF MARRIAGE, 613 
 
 ceptional manner. This subject is fully discussed in Mr. 
 Davidson's volume on settlements (Dav. Conv. vol. 3, 
 part 1, appendix No. 1, to which place the reader is referred 
 for details). It is thoroughly settled tliat 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 (/). 
 
 The next question is, what is the effect of a post-nuptial Effect of 
 "note or memorandum" satisfying the requisites of the tion by 
 statute on an ante-nuptial informal agreement ? P^^*^" , 
 
 mi 1 • • 1 1 • • -r nuptial 
 
 The authorities are not very clear on this point. It is -writing, 
 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 consideration 
 and thus be rendered valid as against creditors. The first Good aa 
 question is answered in the afhrmative by the decision in pfo^sor • 
 Barkworth v. Young {))i). The case was decided on de- Bark- 
 murrer, and the facts assumed by the Coitrt on the case Youno-.' 
 made by the plaintiff's bill were to this effect. The testa- 
 tor against whose estate the suit was brought had orally 
 promised his daughter's husband before and in considera- 
 tion of the marriage that at his death she should have an 
 equal share of his property with his other chilcben. 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 
 
 (/) See Lassence v. Tierney, 1 rinnigcr, 3 D. M. G. 571, 575, 
 Mac. & G. 551, 571: Smroinc v. (w) 4 Di-ew. 1.
 
 614 AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 was a sufficient note or memorandum of the agreement 
 
 within the Statute of Frauds, and that as such, although 
 
 subsequent to the marriage, it rendered the agreement 
 
 binding on the testator. 
 
 Bad as The second question is practically (though, as will be seen, 
 
 settlor's ^ot quite decisively) answered in the negative by the almost 
 
 creditors: contemporaneous decision in Warden v. Jones (n). That 
 
 Jones. ' was a creditor's suit to set aside a post-nuptial settlement. 
 
 It was attempted to support the settlement as having been 
 
 made pui'suant 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 Romilly, M. E,. 
 
 and by Lord Cranworth, C. on appeal, that the settlement 
 
 could not be supported : and Lord Cranworth inclined to 
 
 think (o) that if the settlement had expressly referred to 
 
 the agreement it would have made no difference. 
 
 The result of this and of Barhrorth v. Young appears 
 to be that the imperfect obligation arising from an 
 informal ante-nuptial agreement can be made perfect and 
 binding as between the parties by a post-nuptial note or 
 memorandum ; but that 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 suit of 
 the settlor's creditors. There seems to be no ground in 
 either case for di-awing 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 reasonable in themselves and not incon- 
 sistent 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 j)ersons. It is 
 difficult to see why a writing satisfying the requisites of 
 the statute should in this case be deprived of its effect as 
 
 {n) 23 Bcav. 487, 2 De G. & J. («) Notwithstanding Bioidas v. 
 
 7G. ButcHs, 1 Vcs. juu, l<jy.
 
 EQUITABLE ESTOPPEL. 615 
 
 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 an ante-nuptial agreement, of which 
 there was no evidence beyond the memory of the persons 
 who for this purjiose would have a common interest in 
 upholding its existence, were to be admitted to make a 
 post-nuptial settlement unimpeachable (p). 
 
 There is yet another class of cases, not resting on con- Cases of 
 tract or agreement at all, in which courts of equity have estoppel^ 
 compelled persons to make good the representations eon- di.stm- 
 ceming existing facts (q) on the faith of which they have 
 induced others to act. The distinction is pointed out by 
 llomilly, M. 11. in Warden v. Jones (r) : and the extension 
 of the doctrine to married women shows very forcibly that 
 it has nothing to do with contract or capacity for contract- 
 ing : for a married woman's interest in property, though 
 not settled to her separate use, has repeatedly been held to 
 be bound by this kind of equitable estoppel (.s) . 
 
 Ill marine 
 insurance : 
 
 B. Another curious and important instance of an im- B. "Slip" 
 perfect obligation arising out of special conditions imposed 
 on the formation of a complete contract is to be foimd in Acts 
 the case of marine insurance. In practice the agreement stamped" 
 is concluded between the parties by a memorandum called policy. 
 a slip, containing the terms of the proposed insurance and 
 initialed by the under^vriters [t). It is the practice of 
 
 {p) Cp. the remarks of Sir T. [q] Per Lord Selbome, Citizens' 
 
 Plumer, M. R. in Battersbee v. Bank of Loimiana v. First National 
 
 Farrington, 1 Svranst. 106, 113, Bank of New Odcans^lj.^. ^YL.\i. 
 
 doubting whether a recital in a 352, 360, and Maddiso/t v. A/drrso/i, 
 
 post-nuptial settlement of ante- 8 App. Ca. at p. 473. 
 
 nuptial written articles would of (r) 23 Beav. at p. 493 ; cp. Teo- 
 
 iiself as against creditors be suflfi- mans v. Williams, 1 Eq. 184, 186 : 
 
 cient evidence of the existence of and see Dav. Conv. 3. 640-646. 
 
 such articles. And see May on (.v) Sharpe v. Fo>j, 4 Ch. 35, 
 
 Voluntary and Fraudulent Aliena- Lusli's trusts, ib. 591. 
 
 tions of Property, Chap. 5, p. 346, {t) For the form of this, see 
 
 sqq. L. E. 8 Q. R. 471, 9 Q. B. 420.
 
 616 AGHKK.MKJs IS OF IMPEKFECT OBLIGATION. 
 
 some insurers always to date the policy as of the date of 
 the slip (?/). At common law the slip would constitute a 
 binding contract. This however is not allowed by the 
 revenue laws. By the Act now in force on this subject, 
 30 Yict. c. 23, s. 7, " No contract or agreement for sea 
 insurance (other than such insurance as is referred to in 
 the 55th section of the Merchant Shipping Act Amend- 
 ment Act, 1862) [/. e. against the owner's liability for 
 accidents of the kinds mentioned in s. 54 of that Act] shall 
 be valid unless the same is expressed in a policy." And by 
 s. 9 no policy can be given in evidence or admitted to be 
 good or available in law or in equity unless duly stamped. 
 The part of the Act which gives rise to the peculiar results 
 we are about to consider is the 7th section. The 9th sec- 
 tion is in the same language as other revenue enactments 
 relating to instruments chargeable with stamp duties [oc) : 
 and like those enactments, it does not affect any rights or 
 remedies du'ectly, but only in an indirect manner by esta- 
 blishing an arbitrary rule of evidence. 
 
 The 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 pre- 
 scribed particulars. (35 Geo. 3, c. 63, ss. 11, 14; 54 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 regarded as having 
 any effect beyond that of a mere proposal (//) : 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 
 
 (m) See L. R. 8 Ex. 199. S»iith\s ca. 4 Ch. 611. 
 
 {x) See the Stamp Act, 1870, 33 [z) See per Blackburn, J. in 
 
 & 34 Vict. c. 97, R. 17. Fisher v. Liverpool Marine Insurance 
 
 (y) See per Willes, J. in Xcms v. Co. L. R. 8 Q. B. 4 09, 474. 
 Wickham, L. R. 2 H. L. 296, 314,
 
 ".SI.IP" IN MAKINK INSURANCE. 617 
 
 the language of the existing statute (which repealed the 
 earlier enactments) has given tlio Courts the opportunity 
 of adopting a more liheral construction without actually 
 overruling any former authorities. 
 
 Since the Act of 30 Vict, the fact has been judicially Modem 
 recognized that the slip is in practice and according to the tion^Tthe 
 understanding of those engaged in marine insurance the slip, 
 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. 
 Accordingly, though the contract expressed in the slip is 
 not valid, that is, not enforceable at law or in equity, it 
 may be given in evidence wherever it is, though not valid, 
 material (a) . In the case referred to the slip was admitted To explain 
 to show whether the intention of the parties was to insm-e ^^f parses, 
 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 prin- To fix true 
 ciple was made in Cori/ v. Patton (b), where it was held ^Q^L^^.f 
 that the time when the contract is concluded and the risk 
 accepted is the date of the slip, at which time the under- 
 writer becomes bound in honour, though not in law, to 
 execute a formal policy; that the Court, when a duly 
 stamped policy 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 (c) . The same doctrine has been con- 
 
 {(i) Per Cur. lonidcs v. Pacijic a. c. 9 Q. B. 577. 
 Insurance Co. L. R. 6 Q. B. 674, (c) Lishman v. Xorthern Maritime 
 
 685, aflfd. in Ex. Ch. 7 Q. B. 517. Insurance Co. L. R. 8 C. P. 216, 
 
 [b) L. R. 7 Q. B. 304, see further affirmed in Ex. Ch. 10 C. P. 179.
 
 618 
 
 AGREEMENTS OF IMrEHFKCT OBLIGATION. 
 
 Collateral 
 bearings 
 of the 
 doctrine. 
 
 Applica- 
 tion in 
 Tvindins-' 
 
 sidered and allowtd, though not directly applied, in other 
 cases. In Fisher S- Liverpool Marine Insurance Co. [d] the 
 slip had been init.aled but the insurance company had 
 executed no policy. In the case of an insurance with 
 private underwritei^ it is the duty of the broker of the 
 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 3ompany, executed in the company's 
 office, and handed over to the assured or his agent on 
 appKcation. It was held that there was no undertaking 
 by the company, dis-inguishable from the contract of in- 
 surance itself, to do chat which it would be the duty of a 
 broker to do in the c'ase of private underwriters ; that the 
 only agreement of tlie company with the assured was one 
 entii-e agreement made by the initialing of the slip, and 
 that as this was an agreement for sea insurance, the statute 
 applied and made it iiupossible to maintain any action for 
 a breach of duty with regard to the preparation and execu- 
 tion of a policy. In Mot^ri^on v. Universal Marine Insurance 
 Co. {r), the question arose of the effect of delivering with- 
 out protest a stamped pplicy 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 ^:he concealment, but that it was 
 a question properly left to the jury whether they had or 
 had not elected to abide b;V 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 (/). '|In the case of a mutual marine 
 insurance association, a letter by which the assured under- 
 
 [d) L. R. 8 Q. B. 469 (Blacki 
 bui-n, J. diss.) aflfd. in Ex. Ch. 
 9 Q. B. 218. 
 
 (e) L. R. 8 Ex. 40, in Ex. Ch. ib. 
 
 197. 
 
 (/) See the jiidgnacntof Cleasby, 
 B. in the Court below, L. R. 8Ex. 
 at p. 60.
 
 UNSTAMPED INSTRUMENTS. 619 
 
 took to become members of the association was admitted as up insur- 
 part of one agreement with the stamped policy, to show °^"°? °°°^" 
 that the assured were contributories in the winding-up of 
 the association {(/). In the winding-up of another such 
 association a member has been admitted as a creditor for 
 the amount due on his policy, though unstamped, when 
 the liability was admitted by entries in the minute books 
 of the association, which seem to have been considered 
 equivalent to an account stated (A). 
 
 It has already been observed that the general revenue Stamp 
 laws as to stamp duties are on a different footing. How- general 
 ever their effects may in one or two cases resemble to some 
 extent those which under the present head we have 
 attempted to exhibit. Thus if an unstamped document 
 combines two characters (as, for instance, if it pui'ports 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 (/). 
 
 In a case where the parties to an agreement in writing Variation 
 had afterwards varied its terms by a memorandum in ^^ ^^^s^- 
 
 •^ C[uent un- 
 
 writing, and the memorandum was not stamped, the stamped 
 plaintiff joined in his action a count on the agreement in ment." 
 its original form and another on the agreement as varied : 
 and when it appeared by his own evidence that the memo- 
 randum did materially 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 originally stood (/.•). 
 Neither this decision, nor the earlier authorities on which 
 it rested, were referred to in lioble v. JFarcl (l). In that 
 case there was a substituted agreement which was void 
 under s. 17 of the Statute of Frauds : and it was held that 
 
 iff) Bhjih Sf Co.'s ca. 13 Eq. o29. {I) L. R. 1 Ex. 117, in Ex. Cli. 2 
 
 (A) Martin'' s claha., 14 Eq. 148. Ex. 135: but othei-wise where the 
 
 (i) Matheson v. Ross, 2 H. L. C. substituted agreement has been 
 
 286, and see Chitty on Contracts, executed in part ; for this shows 
 
 125 (10th ed.). that the old one is gone: Sanderson 
 
 (/■) lircd V. Dmr, 7 B. & C. 2G1. v. f/rairs, L. R. 10 Ex. 234.
 
 620 
 
 AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 Attempt 
 
 to use lui- 
 
 stamped 
 
 document 
 
 in a 
 
 different 
 
 character. 
 
 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 distinction between a contract the 
 record of which is unavailable for want of a stamp, and an 
 agreement which is void from its inception. 
 
 In a much litigated case of Evans v. Prothei'o {m) the 
 question arose whether a document purporting to be a 
 receipt for purchase-money on a sale of land, but insuffi- 
 ciently stamped for that purpose, can be admitted as 
 evidence to prove the existence of an agreement for sale : 
 but the form in which it arose was unfortunately ill suited 
 for the attainment of a final and satisfactory decision. The 
 existence of the agreement was in issue on a trial directed 
 by the Court of Chancery : the document above mentioned 
 was tendered as proof and objected to : the jury found in 
 favour of the agreement, and a new trial was applied for. 
 This w^as granted by Lord Cottenham : on the second trial 
 the same thing happened again : Lord Cottenham sent the 
 case back to a third trial, holding on each occasion that the 
 document was inadmissible. The third trial took the same 
 course as the first and second. But the motion for a fourth 
 trial came before Lord St. Leonards, who took a contrary 
 view to Lord Cottenham's and refused it. The judges 
 before whom the applications 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 
 point must therefore bo regarded as still quite unsettled, 
 though the analogy of other authorities seems to favour 
 the opinion of Lord St. Leonards. 
 
 C. Sta- 
 
 tutury 
 
 fonditifinH 
 
 afl'cctiiig' 
 
 profoH- 
 
 sions, &c. 
 
 C. There arc also many statutes which impose sj^ecial 
 conditions on the exorcise of particular professions and 
 occupations and the sale of particular kinds of goods. 
 
 (w) 2 Mac. & G. 319, 1 D. M. G. 672.
 
 COSTS OF UNCERTIFICATED SOEIClTOilS. 621 
 
 Most of these, however, are so framed, or have been so 
 construed, as to have an absolutely prohibitory effect, that 
 is, not merely to take away or suspend the remedy by 
 action, but to render any transaction in which their pro- 
 visions are disregarded illegal and void. The principles 
 applicable to such cases have been considered under the 
 head of Unlawful Agreements (Ch. YI.). 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 Yict. c. 73, with 
 respect to attorneys and solicitors, and of the Medical Act, 
 1858 (21 & 22 Vict, c. 90), with respect to medical prac- 
 titioners. 
 
 By the 6 & 7 Vict. c. 73, s. 26, extended by 37 & 38 Attorneys 
 Vict. c. 68, it is enacted in substance that an attorney or ^^^.^ ^^osts 
 solicitor practising in any court without having a stamped of uncer- 
 certificate then in force (as provided for by ss. 22 — 25, solicitor 
 and now 23 & 24 Vict. c. 127, ss. 18—23) shall not be ^^^^^^ 
 
 •!•(< c ^ • allowed. 
 
 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 («). But, since the Act of 1874 at all events, 
 a successful party whose solicitor was uncertificated cannot 
 recover costs if the objection is made on taxation (o). 
 This appears to leave untouched an earlier case (/;) 
 where it was decided that items for business done by a 
 solicitor while uncertificated must be allowed as against 
 the client in a taxation on the client's own application ; 
 for the client submits to pay what shall be found due, not 
 
 («) Fidlalove v. Parker, 12 C. B. (o) Fowler v. Monmouthshire 
 
 N. S. 240, 31 L. J. C. P. 239, 240. Canal Co. 4 Q. B. D. 334. 
 
 ij)) Me Joies. 9 Eq. 63.
 
 622 AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 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 {q). It is said that an attorney can 
 have no lien for business done by him while uncertifi- 
 cated (/■) . But the case cited for this (-s) was on the earlier 
 Attorneys Act, 37 Greo. 3, c. 90, by which the admission 
 of an attorney neglecting to obtain his certificate as 
 thereby directed was in express terms made void (s. 31) : 
 it was held that under the special circumstances of the 
 case (which it is unnecessary 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 
 acquii-ing any right whatever as an attorney while thus 
 disqualified. It is submitted that under the modem 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 Apart from this, a solicitor cannot in any case sue for 
 fo/costf GO?i?, till a month after the bill has been delivered (6 & 7 
 Yict. c. 73, s. 37), imless authorized by a judge to sue 
 sooner on one of certain grounds now much enlarged by 
 the Legal Practitioners Act, 1875, 38 & 39 Yict. c. 79 {f). 
 
 Medical Tho rights of medical practitioners now depend on the 
 
 tiontrs Medical Act, 1858, and (in England only) the Apothecaries 
 Common Act, 55 Gco. 3, c. 194. Before the Medical Act the state 
 law .'IS to (jf ^}jQ \ix^\ so far as concerned physicians (but not sm'^eons 
 cians. or apothecarics) was this. It was presumed, in accordance 
 with the general usage and understanding, that the services 
 
 (-/) Sparluit/v. BrcrcloH, 2 Eq. 64. 524. 
 
 (r) Chitty's Arohbold's Pr. G9, {t) As to Bi^ccial agreements be- 
 
 ed. 1866. tween solicitor and client, see p. 
 
 («) Wilton V. Chambers, 7 A. &E. 029, below.
 
 MEDICAL ACT. 623 
 
 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 con- 
 trary to law in an express contract to pay a physician for 
 his services, Avhich contract would effectually exclude the 
 presumption (u). 
 
 The Medical Act, 1858 (21 & 22 Yict. c. 90), s. 31, Pro^-isions 
 enacts that every person registered under the Act shall be ^ct ^1858, 
 entitled according to his qualification to practise medicine, 
 &c., and to recover reasonable charges for professional aid, 
 &c. : but it is provided that any college of physicians may 
 pass a by-law that none of their fellows or members shall 
 be entitled to sue "in manner aforesaid." The effect of 
 this enactment is to put an end to the presumption of 
 honorary employment which formerly existed (,r). It 
 remains competent 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 
 3ury(y). 
 
 By the Act 55 Gleo. 3, c. 194, s. 21, an apothecary can- Apothe- 
 not recover his charges without having a certificate from 55^^60 3.' 
 the Apothecaries' Society : and this is not repealed by the 
 Medical Act {z). Moreover s. 31 of the Medical Act 
 enables a practitioner to sue only " according to his quali- 
 fication," and a qualification in one capacity does not 
 entitle him to sue for services rendered in another (a). 
 
 It may perhaps be doubted whether the " reasonable Does s. 31 
 charges" of s. 31 include remuneration for which there Medical 
 
 («) Velich V. Mussell, 3 Q. B. 928, Martin, B. 
 12 L. J. Q. B. 13. No such pre- (y) Gibbon v. Biidd, last note, 
 sumption exists in the United {z) See decisions on this Act col- 
 States; and(?«. how far, if at all, it lected, 1 "Wms. Saiind. 513-4. 
 exists in English colonies. (a) Lcman v. Fletcher, L. R. 8 
 
 {x) Gibbon v. Budd, 2 H. & C. 92, Q. B. 319. 
 32 L. J. Ex. 182. See jiulginent of
 
 624 AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 Act ex- is an express contract : for as to this tliere was no 
 express necessity for any enabling enactment. Again this ques- 
 contracts ? tion arises : Can a patient who has expressly contracted 
 to pay his physician avail himself of this section to 
 refuse payment on the ground of the charges being un- 
 reasonable ? Then, if the proviso as to collegiate by-laws 
 is to be taken as applicable only to the same matter 
 as the enactment which it qualifies, it may possibly follow 
 that there is no power for a college to make a by- 
 law to restrain a fellow or member from suing on an 
 express contract. It seems more probable, however, that 
 s. 31 should be read together with the following section 
 (s. 32) and taken as co-extensive with it. That se3tion 
 enacts that no practitioner shall recover anu charge for 
 medical or surgical advice, &c. unless he proves that he is 
 registered under the Act {h). And this at all events 
 includes express as well as implied contracts ; it also 
 includes contracts made with any third person who is to 
 pay for medical attendance as well as those made with the 
 patient himself. In Alcarcz de la Rosa v. Prieto (c) the 
 plaintiff was a Spanish practitioner domiciled in England 
 but unregistered, and he had agreed with the defendant, 
 who was the chief medical officer of a Peruvian ship of 
 war lying in the Thames, to take the medical charge of 
 the men on board for a fixed monthly sum during the de- 
 fendant's absence. It was held that this contract fell 
 within the Act and the plaintiff could not recover. It 
 made no difference that the defendant was a medical man, 
 for the plaintiff was not his assistant but was acting indepen- 
 
 (i) It was held not necessary tliat events as to apothecaries; for an 
 
 the practitioner should have hecn uni'epealed section of the Apothe- 
 
 registcred at the time of rendering caries Act (55 Geo. 3, c. 19-1, s. 20) 
 
 the services sued for if he could cxjiressly forbids unqualified per- 
 
 prove that ho was actually regis- sous to practise : and in tlie clear 
 
 tered at tlie time of the trial in opinion of the Court on the con- 
 
 Tttriicr V. li'i/iKill, It C. B. N. 8. struction and intention of the 
 
 328, 32 L. J! C. p. IGl. But sec Medical Act also. 
 coidra, Leman v. Ilmscln/, L. II. {(■) 16 C. B. N. S. 578, 33 L. J. 
 
 10 Q. B. GO, decisively and at all C. P. 262.
 
 MEDICAL ACT. G25 
 
 dently, and merely looked to him for payment. It was 
 was also argued that the contract should he governed not 
 by the law of England hut by the law of Peru : hut the 
 Court held, that since s. 32 of the Medical Act was part of 
 the lex fori of the country where the remedy was sought, 
 the general rule that the lex fori governs the remedy must 
 be applied. Cp. the decision on s. 4 of the Statute of 
 Frauds in Leroux v. Brown (d). 
 
 By the Austrian Code (§ 879) special agreements for 
 remuneration between a physician or surgeon and his 
 patient, as well as between a lawyer and his client, are 
 null and void. 
 
 The general result is, that according to the modern law General 
 there is no presumption against the existence of a contract tg^J^ecScal 
 to remunerate a medical attendant for his services ; but men's 
 registration under the Medical Act, and also the proper " 
 special quahfications for the special branch of practice in 
 which the services are rendered (which registration and 
 qualification, according to the later and better opinion, 
 must exist at the time the services are rendered) (e), are 
 conditions precedent to his recovering anything for such 
 services on a contract either express or implied : and the 
 right to recover on an implied contract at all events (and 
 probably also on an express one) may be excluded in the 
 case of fellows or members of any college of physicians by 
 a prohibitive by-law (./). Moreover, it seems probable that 
 even an express contract is subject to the condition of the 
 charges being reasonable. 
 
 3. We now come to the cases in which some positive 3. No 
 rule of law or statutory enactment takes away the remedy gijo^e'cl. 
 altogether. 
 
 The only cases known to the writer in which there is a 
 
 {d) 12 C. B. 801, 22 L. J. C. P. (/) Such a by-law has been 
 
 1 ; supra, pp. 606, 607. passed (as to fellows only) by the 
 
 (e) Leman v. HohscIcij, L. E.. 10 Royal College of Phj-sicians in 
 
 Q. B. 66. Loudon. 
 
 P. S S
 
 6-26 
 
 AGREEMENTS OF IMPERFECT ORLIGATIOX. 
 
 Arbitra- 
 tors. 
 
 Barristers. 
 
 No remedy 
 against 
 client in 
 I'espect of 
 litigious 
 business. 
 
 Distinc- 
 tion when 
 baiTister 
 acts as 
 arbitrator, 
 &c. 
 
 rule of law to this effect independent of any statute are 
 those of the remuneration of barristers engaged as advo- 
 cates in litigation, and (to a limited extent) of 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 there is 
 no doubt that he can sue on an express contract {(/). 
 
 The position of a barrister is different. 
 
 The opinion was indeed not untenable, until quite 
 recently, 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 contract. So Lord Denman seems to have been 
 inclined to think in Veitch v. llusseU {!/) : and a modern 
 case of Ilohart v. Butler in the Irish Exchequer, though it 
 did not decide the point, proceeded to some extent on the 
 same assumption (/). 
 
 But the decision of the Court of Common Pleas in Ken- 
 ncdij V. Broun (k) has established the unquahfied doctrine 
 that "the relation of counsel and client renders the parties 
 mutually incapable of making any legal contract of hiring 
 and service concerning advocacy in litigation." The re- 
 quest and promises of the client, even if there be express 
 promises, and the services of the counsel, " create neither 
 an obligation nor an inception of obligation, nor any 
 inchoate right whatever capable of being completed and 
 made into a contract by any subsequent promise." 
 
 On the other hand there is apparently no reason to 
 doubt the validity of an express contract to remunerate a 
 ban-ister for services whicli, though to some extent of a 
 professional kind, and involving the exercise of professional 
 
 {'/) JIogf/UiH V. Gordon, 3 Q. B. 
 ■106, 11 L. J. Q. B. 28G ; Vntch v. 
 iiimeU, \b. 928, 12 L. J. Q. B. 13. 
 
 (//) Sec Inst note. 
 
 (0 9 Ir. C. L. 157. 
 (/■) 13 0. B. N. S. G77, 
 C. r. 137. 
 
 32 L. J.
 
 counsel's fees. 627 
 
 kuowleclge, do not involve any relation of counsel and 
 client between the contracting parties : as when a barrister 
 acts as arbitrator or returning officer (/). 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. 
 
 Moreover, it has been argued that an express con- Express 
 tract even between counsel and client may still be good -n-ith client 
 as to non-litigious business. A claim of this sort made f.*^.*? "°^^" 
 
 ... IP litigious 
 
 agamst an estate under administration was disposed of business : 
 by Griifard, L. J. on the ground, which was sufficient for '^"' 
 the particular decision, that at all events a solicitor has no 
 general authority to bind his client by such a coiitraot : 
 but he also observed that such applications had never been 
 successful, and expressed a hope that they never would 
 be (m) . And it must be remembered that although the rule 
 laid down in Kouicdy v. BroiDi is in its terms confined to 
 litigation, and the word advociite, not counsel, is studiously 
 used throughout the judgment, yet the rule is founded 
 not on any technical distinction between one sort of 
 business and another, nor on any mere presumption, but 
 on a principle of general convenience supported by un- 
 broken custom. No doubt it may be said that some of the 
 reasons given for the policy of the law do not apply in 
 their full extent to non-litigious business {n) ; and it 
 
 (/) Hoggina v. Gordon, 3 Q. E. to recover fees. Hohart v. Butler 
 
 466, 11 L.J. Q. B. 286; Egan\. was relevant enough, but tlie wrong 
 
 Guardians of Kensington Union, 3 way ; for it was really a decision 
 
 Q. B. 935, n. against a similar claim and on an 
 
 (>«) Mostgn v. Mostyn, 5 Cli. 457, almost identical point. 
 459. It may be well to warn the («) In addition to Kenncdg v. 
 reader that the cases there refeiTed Broun, aec 3[orris\. Hunt, 1 Chitty, 
 to in argument in favoiu- of the 544, 550, 654, where the ride is put 
 counsel's claim are, with the sole on the ground that the remunera- 
 exception of Hohart v. Butler, 9 Ir. tion of the counsel ought to be iude- 
 C. L. 157, irrelevant. For instance, pendent of the residt of the cause, 
 Doe d. Bennett v. Sale, 15 Q. B. and therefore counsel shoidd rely 
 171, 18 L. J. Q. B. 353, shows on prepayment alone. This reason 
 only that there is no absolute rule of would however be equally inap- 
 law that in a civil caiise a baiTistcr plicablc to an express and luicon- 
 may not be instructed dnectly by ditional contract to pay fees for 
 the client, and throws no hght advocacy, if made before the corn- 
 whatever on a^iy question of a right mencement of the litigation.
 
 qu 
 
 628 AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 is doubtful wliether they apply eveu to those English 
 colonies where the common law is in force (o). But there 
 is no reason to suppose that English courts of justice are 
 likely to narrow the scope of a decision called by the late 
 Lord Justice Griffard " a landmark of the law on this 
 subject 0^)." 
 Rights of There is no express authority to show whether a barrister 
 as against *^^^ ^^ Cannot contract with his client's solicitor for payment 
 solicitor : of his fees any more effectually than with the client him- 
 self. It is apprehended that, inasmuch as counsel's ser- 
 vices 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 to 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 bank- 
 ruptcy {(]) . 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 to return them to the 
 client (r). The case, however, was a peculiar one and goes 
 but a very little way towards answering the general 
 question. In the argument of Uohart v. Butler (s) two 
 unreported (presumably Irisli) cases were cited to show 
 that a barrister has a remedy in some form, it does not 
 
 (o) Jlfff. V. Boittrc, 9 App. Ca. at professional services. 
 p. 751, •whore it was held Hint tlio (y/) jMosh/ti v. Mostyu, supra. 
 
 case at bar was governed by the (</) lie Hull, 2 Jur. N. S. 1076. 
 
 law of the Province of Quebec: in (;■) Re A)if/cll, 29 L. J. C. P. 227. 
 
 that law there is nothing to pre- (.s) 9 Ir. C. L. 157. 
 
 vent an advocate from suiii"- for
 
 counsel's fees. 629 
 
 appear wliat, to recover fees whicli have been received by 
 the solicitor. The Court expressed no opinion as to their 
 authority. 
 
 It is hardly necessary to add that although counsel's Rccogni- 
 fees cannot be recovered in any way by action, except co^imsel's 
 possibly in some of the cases which have been mentioned fees in 
 as still doubtful, the propriety of paying such fees is of costs, 
 judicially recognized by the constant practice of the courts 
 in the taxation of costs : and the solicitor needs no autho- 
 rity from the client beyond his general retainer to enable 
 him to retain and pay counsel and charge the fees to his 
 client (t). 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 Kenncdi/ v. Broun {/(), the judicial notice thus 
 taken of the obligation of a client to pay his counsel 
 seems to be alone quite sufficient to warrant us in treating 
 it here as being, though imperfect, in the nature of a 
 legal duty, and on a different footing from a mere moral 
 obligation. 
 
 The Solicitors Remuneration Act, 1881 {.r), establishes Solicitors 
 complete freedom of contract between solicitor and client as atimi Act' 
 to conveyancing and other non- contentious business, and issi- 
 to that extent expressly supersedes the earlier Act of 1870. 
 
 By the Attorneys and Solicitors Act, 1870 (33 & 34 Special 
 Vict. c. 28), special agreements for remuneration between nfentt" 
 solicitor and client were made lawful (s. 4) and in a qualified between 
 manner enforceable. Agreements under this Act cannot and client 
 be sued upon as ordinary contracts, but the procedure is Qf^^g-Q * 
 by motion or petition, when the Court may enforce the 
 agreement if it appears to be in all respects fair and 
 reasonable, or otherwise set it aside. In the last case the 
 
 (t) See Morris v. Eioit, 1 Chitty, [u) 13 C. B. N. S. G77, 32 L. J. 
 
 544. C. P. 137. 
 
 (.1-) 44 & 45 Vict. c. 44.
 
 630 
 
 AGREEMENTS OF IMPERFECT OBLIGATION, 
 
 Voidable 
 contracts 
 of infants 
 affirmed 
 at full ao-c. 
 
 Court may direct tlie costs of the business included in the 
 agreement to Tbe taxed in tlie 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 (;/) . 
 
 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 sj^eeial features of this 
 subject have been already considered (z), and there is 
 nothing to add excej)t that the general principles set forth 
 in the present chapter seem to be applicable to these as 
 well as to other agreements of imperfect obligation. 
 
 Other 
 cases 
 
 where con- 
 tract not 
 illegal, but 
 remedy- 
 taken 
 away by 
 statute. 
 
 Small 
 debts for 
 spirits by 
 Tippling 
 Act, 24 
 Geo. 2 ; 
 for beer, 
 &c., by 
 County 
 Courts 
 Act, 18G7. 
 
 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. 
 
 By the Act 24 Greo. 2, c. 40, s. 12, commonly known as 
 the Tippling Act, no debt can be recoA^ered for spirituous 
 liquors supplied in quantities of less than twenty shillings' 
 worth at one time (r/). The County Com-ts Act, 1867 
 (30 & 31 Vict. c. 142), s. 4, similarly enacts that no action 
 shall 1)6 brought in aiii/ court for the price of beer or other 
 specified liquors ejnsdcm gencn's consumed on the pre- 
 mises. The Act of Geo. 2 applies whether the person to 
 wliom tlio liquor is supplied bo tlie consumer or not {b). 
 
 (//) liccK V. im/iditis, L. R. 10 
 Ex. 200. I5y the terms of the Act 
 the agreement must be iu writing, 
 and it seems it must be signed by 
 both parties : IJx parte Mioiro, 1 Q. 
 B. D. 724. 
 
 {z) In Chap. II., above. 
 
 {a) By 25 & 2G Vict. c. 38, an 
 
 cxfoption is made in favour of sales 
 of spirituous liquor not to be con- 
 sumed on the premises, and deli- 
 vered at the purchaser's residence 
 in (piantities of not less than a re- 
 puted quart. 
 
 {!)) llughcH V. Bone or Doane, 1 
 Q. B. 294, 10 L.J. Q. B. 6o.
 
 TIPPLING ACL' : THAI)!-: UMOIS AGllEEMENTS. 631 
 
 As these enactments do not make the sale illegal, money 
 which has been paid for spirits supplied in small quantities 
 cannot be recovered back (r) , A debt for such supplies 
 was once held to be an illegal consideration for a bill of 
 exchange (d) : but this decision seems dictated by an ex- 
 cess of zeal to carry out the policy of the Act, and is 
 possibly questionable. In a later case at Nisi Prius (e) 
 Lord Tenterden held that where an account consisted partly 
 of items for spirituous liquors within the Tippling Act, 
 and partly of other items, and payments 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 treating these debts, like debts barred by the Statute 
 of Limitation of James I., as existing though not recover- 
 able. 
 
 The writer is not aware of any decision on the modern 
 enactment as to beer, &c., in the County Courts Act, 1867. 
 
 By the Trade Union Act, 1871 (34 & 35 Yict. c. 31), Trade 
 
 s. 4, certain agreements therein enumerated and relating ^^-gg. 
 
 to the management and operations of trade unions cannot ments 
 
 be sued upon, but it is expressly provided that they are Trade 
 
 not on that account to be deemed unlawful. In this Y^""^„-, 
 
 . Act, 1871. 
 
 enumeration are included agreements to pay subscriptions. 
 
 It has also been decided that a member of a trade union 
 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 pro- 
 perty (/). Practically trade union subscriptions are thus 
 placed on the same footing as subscriptions to any club 
 
 {<■) Fhilpott y. Jones, 2 A. & E. {>) Croohshanls v. Hosr, 5 C. & 
 
 41. P. 19. 
 
 (rf) Scott V. Gillmorc, 3 Taunt. (/) Rigb>/ v. Connol, U Ch. D. 
 
 226. 482; q). Wolfe v. Matthews, 21 
 
 Ch. D. 194.
 
 632 AGltEEMEJSTS OF IMPERFECT OBLIGATION, 
 
 ■wliicli is not proprietary {g) . So far as we are aware there 
 is nothing in principle against the payment of subscriptions 
 to a club being legally enforced : but it would in most 
 cases be extremely difficult, if not impossible, to ascertain 
 who were the proper persons to sue [h). The same diffi- 
 culty exists in the case of any numerous unincorporated 
 association. But this belongs to another division of our 
 subject (/). 
 Cases of The present place seems on the whole the most appro- 
 fmpeilect^ priate one for mentioning a singular case which may be 
 obliga- regarded as the converse of those we have been dealing 
 Effect of with. A valuable consideration is given in the course of a 
 repeal of transaction which as the law stands at the time is wholly 
 as to illegal and confers no right of action on either party. 
 
 maTe^*^^^ Afterwards the law which made the transaction illegal is 
 before. repealed. Is the consideration so received a good founda- 
 tion for a new express promise on the part of the receiver ? 
 The question came before the Court of Exchecj[uer in 1863, 
 some years after the repeal of the usury laws. The plaintifp 
 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 terms which under the old 
 law were usurious. The former bills were unquestionably 
 void : but it was held by the Court (Martin, B. dissenting) 
 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 consideration for an 
 
 {(/) In the case; of a proprietary New York not without success : 
 
 chib the i)roprietor can sue: see llilliard on Contracts, 1. 259 ; Par- 
 
 liiiygctt V. Bishop, 2 C. & P. 343; sons on Contracts, 1.377. But see 
 
 Jiagr/ctt v. Miinf/ravc, ib. 550. now Cottayc Stvcct Church v. Ken- 
 
 (h) In the common law courts of dn//, 121 Mass. 528, where the 
 some of the United States, how- opinion expressed in cai'lier dicta, 
 ever, tlie still more difficult attempt that " it is a sufficient considcra- 
 has Imcu made to enforce promises tioii that others Averc led to sub- 
 to subscribe to ])ul)Hc olijccts in s(^ril)0 Ijy the very subscription of 
 Avhich the subscribers had a common the defendant," was overruled, 
 interest: and in Massachusetts and (i) See pp. 204, 223, supra.
 
 GENERAL RESULTS. 633 
 
 express promise to do so." And the answer was given 
 thus : — " The considejation which would have been suffi- 
 cient 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"(/i'). The debt, therefore, which was originally 
 void by the usmy laws, seems to have been put in 
 the same position by their repeal as if it had been 
 a debt once enforceable but barred by the Statute of 
 Limitation. 
 
 There is one other analogy to which it is worth while to Treatment 
 advert, although it was never of much practical import- able'^obli- 
 anee, and what little it had has in England been taken gations at 
 away by the Judicature Acts. Purely equitable liabilities law. 
 have to a certain extent been treated by common law 
 courts as imperfect 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 (/), 
 or by a simple admission that he holds as trustee a certain 
 sum due to the cestui que trust (y;^). A court of law has 
 also held that a payment made by a debtor without appro- 
 priation may be appropriated by the creditor to an equit- 
 able debt (w). 
 
 (k) Flight V. Reed, 1 H. & C. supports the case on the gi'oxind 
 
 703, 715, 716 ; 32 L. J. Ex. 265, that the bills sued on were an 
 
 269. But is not the consideration actual payment of the usurious 
 
 wholly past at the tune of the loan. Quod nimium suhtilitcr dictum 
 
 promise? The consideration for vidctur. 
 
 accepting a renewed bill of ex- (l) Tophamy.Morecroft,^'E.k'B. 
 
 change is not the value received 972, 983 ; Howard v. Brownhill, 23 
 
 which was the consideration of the L. J. Q. B. 23. 
 
 original bill, but the abandon- [m) HoperY.Solland, 3A.&'E.99. 
 
 ment of the right of action thereon. («) Bosanquet v. Wraij, 6 Taunt. 
 
 Prof. Langdell (Summary, § 76) 597.
 
 634 AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 Summary It may be useful to sum up in a more general form the 
 o res b. j,gg^^;^^g 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 sub- 
 sequent. 
 
 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 consideration 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 employed 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 procedm'e of the 
 forum where they prevail {o), and as part of the kx fori 
 they are applicable to contracts sued upon in that forum 
 without regard to the law governing the substance of the 
 contract (p) ; but on the other hand they are not regarded 
 in any otlier forum. 
 
 (o) Contra Savig'iiy, Syst. 8. 270, mcnts which are merely ancillary 
 
 273. to revenue laws, such as the 30 
 
 (;;) This (it is conceived) does not Vict. c. 23, s. 7, as to marine in- 
 
 apply to revenue laws, and enact- siu'ances.
 
 ( 635 ) 
 
 APPENDIX. 
 
 Note A. (pp. 1, 6). 
 
 Terminology and Fundamental Conceptions of Contract. 
 
 In tlie two first editions I made use of Savigny's definition of Savlgny's 
 Vertrag (whicli can only be translated by Agreement, but in a wider <i|n^itions 
 sense tban is known to any English writer). It now seems to me and oblicja- 
 out of place in a special treatise on Contract. In tbe tbird volume torischcr 
 of bis System Savigny deals in tbe most general way with tbe '' "'^' 
 events capable of producing cbanges in rights and duties in tbe 
 field of private law. Such events be calls juristiscJie Thatsaclicn ; 
 an expression to wbich our own accustomed "acts in tbe law" 
 seems well fitted to correspond. To speak, as some writers do, of 
 " jiu-idical facts," is to use language wbicb is so far from being 
 Englisb tbat it becomes intelligible onlj'- by a mental re-translation 
 into German. Greater nicety migbt be obtained, if desired, by 
 coining tbe term " event in tbe law " ior Juristische Thatsaclie in its 
 widest sense, and reserving "act in tbe law " for tbe sjiecies wbicb 
 Savigny proceeds to mark off from tbe genus, namely, freic Iland- 
 lung, or better, perbap)S, for tbe further specified kind of voluntary 
 acts wbicb manifest an intention to bring about particular legal 
 consequences. Sucb an act is called by Savigny WiUenserldarung. 
 Specifying yet more, we distinguish the acts in which the will of 
 only one party 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 p)ersons are determined. " Vertrag ist die Yereini- 
 gung Mehrerer zu einer iibereinstimmenden Willenserklarung, 
 wodurch ihre Eechtsverhaltnisse bestimmt werden." (Syst. 3. 309.) 
 This covers a much wider field than that of contract in any jiroper 
 sense. Every transaction answering this description includes an
 
 636 
 
 APPENDIX. 
 
 agreement, but many transactions answer to it which include far 
 more : conveyances of proj^erty, 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 approaching it, is an agreement 
 which produces or is meant to produce an obligation [oil i(j atari scher 
 Vertrag). It is thus defined in his Obligationenrecht, § 52 (vol. ii. 
 p. 8): "Yereinigung Mehrerer zu einer ubereinstimmenden Wil- 
 lenserklarung, wodui'ch unter ihnen eine Obligation entstehen soil." 
 Now the use of the more general notion of Vertrag, as Savigny 
 himself explains, is not to clear up anything in the learning of con- 
 tracts. It is to bring out the truth that other transactions which 
 are not contracts, or which are more than contracts, have in common 
 with them, the character of consent being an essential ingredient. 
 Moreover we should have to consider, before adopting this termi- 
 nology, the wider question whether the retention of Obligations as 
 a leading division in a modem system of law be necessary or 
 desii'able. 
 
 To apply this division to the Common Law would be as violent a 
 proceeding, in any case, as to ignore it in Roman Law. The dis- 
 tinction between the ideas denoted by dominiujn and ohligatio is of 
 course 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. 
 
 For these reasons Savigny's definition, admirable as it is for its 
 own purposes and in its own context, and instructive as his work is 
 almost everywhere as an examj^le of scientific method, is now re- 
 served 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. I also 
 think it more convenient to exhibit continuously in this jilace the 
 provisions of the Act as to the formation of contracts than to give 
 them incidentally in the course of my own work. They are as 
 follows : — 
 
 Indian 
 Contract 
 Act. 
 
 lutcrprc- 
 tatiou 
 clause. 
 "Pro- 
 posal." 
 
 Indian Conteact Act {Preliminary). 
 
 2. In this Act the following words and expressions arc used in 
 the following senses, unless a contrary intention ajijiears from the 
 context : — 
 
 (a) When one person signifies to another his willingness to do 
 or to abstain from doing anything, with a view to obtaining the 
 assent of that other to such act or abstinence, he is said to make a 
 proposal :
 
 TERMINOLOGY OF CONTRACT. 637 
 
 [_b) Wlien the person to wliom the proposal is made signifies his " Pro- 
 assent thereto, the proposal is said to be accepted. A proposal when 
 accepted becomes a pi-omise : 
 
 (c) The person making the proposal is called the " promisor," the " ?™",, 
 
 person accepting the proposal is called the " promisee " : and "pro- 
 
 {d) When, at the desire of the promisor, the promisee, or any misce." 
 
 other person, has done or abstained from doing, or does, or abstains "Conside- 
 
 from doing, or promises to do or to abstain from doing something, ^^ ^°^* 
 such act or abstinence or promise is called a consideration for the 
 promise : 
 
 (e) Every promise, and every set of promises forming the con- " Agree- 
 
 sideration for each other, is an agreement : ™^^ 
 
 (/) Promises which form the consideration, or part of the con- "Rpf'ipro- 
 
 sideration for each other, are called rccij)rocal promises : mises." 
 
 ((/) An agreement not enforceable by law is said to be void : "Void 
 
 (/i) An agreement enforceable by law is a contract (a) : agree- 
 
 (i) An agreement which is enforceable by law at the option of one ™6nt. 
 or more of the parties thereto, but not at the option of the other or ^^,^^^ ,', 
 
 others, is a voidable contract : "Voidable 
 
 (k) A contract which ceases to be enforceable by law becomes contract." 
 
 void when it ceases to be enforceable. "Void 
 
 [It would have been more verbally consistent, perhaps, to say in ^°^ ^'^^ ' 
 the last sub-section, " becomes a void agreement."] 
 
 Chapter I. Of the Communication, Acceptance and Revocation of 
 Proposals. 
 
 3. The communication of proposals, acceptance of proposals, and Commum- 
 the revocation of proposals and acceptances, respectively, are deemed acceptance 
 to be made by any act or omission of the party proposing, accepting, and revo- 
 or revoking, by which he intends to communicate such proj^osal, cation of 
 acceptance, or revocation, or which has the effect of communi- 
 cating it. 
 
 [It would be difficult to find any such general statement in the 
 English authorities; and the language of this section is perhaps 
 open to criticism. A little reflection will show, however, that the 
 substance of it is taken for granted in the whole treatment of ques- 
 tions of contract in our books.] 
 
 4. The communication of a jjroposal is complete when it comes Commum- 
 to the knowledge of the person to whom it is made. -when 
 
 The communication of an acceptance is complete as against the complete. 
 
 («) Compare Blackstone's lau- sufficient consideration to do or 
 guage (2. 442) : "A contract . . . not to do a particular thing." 
 is thus defined : an agreement iipon
 
 638 
 
 APPENDIX. 
 
 proposer, when it is put in a course of transmission to him, so as 
 to be out of the jjower of the acceptor ; as against the acceptor, when 
 it comes to the knowledge of the proposer. 
 
 The communication of a revocation is complete as against the 
 person who makes it, when it is put into a course of transmission 
 to the person to whom it is made, so as to be out of the power of 
 the person who makes it ; as against the person to whom it is made, 
 when it comes to his knowledge. 
 
 Illustrations. 
 
 (n) A. proposes by letter to sell a house to B. at a certain pi-ice. 
 The communication of the proposal is complete when B. 
 receives the letter. 
 
 [h) B, accej)t3 A.'s proposal by a letter sent by post. The com- 
 muuicatiou of the accejitance is complete as against A. 
 when the letter is posted ; as against B. when the letter is 
 received by A. 
 
 (c) A. revokes his proposal by telegram. The revocation is com- 
 j)lete as against A. when the telegram is desjsatched. It is 
 complete as against B. when B. receives it. 
 
 B. revokes his acceptance by telegram. B.'s revocation is com- 
 plete as against B. when the telegram is despatched, as 
 against A. when it reaches him. 
 
 Revoca- 
 tion of 
 proposals 
 and ac- 
 ceptances. 
 
 [What of an acceptance that does not arrive at all ? The letter 
 of the text seems to lead to the conclusion of Household Fire Insu- 
 rance Co. v. Grant (p. 35 above); but the spirit of Illustration (c) 
 looks the other way.] 
 
 o. A proposal may be revoked at any time before the communica- 
 tion of its acceptance is complete as against the proposer, but not 
 afterwards. 
 
 An acceptance may be revoked at any time before the communica- 
 tion of the acceptance is completed as against the accejitor, but not 
 afterwards. 
 
 lUnstration. 
 
 A. proposes, by a letter sent by post, to sell his house to B. B. 
 
 accepts his proposal by a letter scut by post. A. may 
 revoke his proposal at any time before, or at the moment 
 when B. posts his letter of acceptance, but not afterwards. 
 
 B. may revoke his acceptance at any time before or at the moment 
 
 when the letter communicating it reaches A., but not after- 
 wards. 
 
 Revoca- 0. A proposal is revoked 
 
 tioii, lio w ^ J _ ^ j^y ^^^ communication of notice of rovocation by the proposer 
 to the other party ;
 
 TERMIKOLOGY OF CONTRACT. 639 
 
 (2.) By tlio lapse of the time prescribed in sucli proposal for its 
 acccjjtance, or if uo time is so prescribed, then by tlio lapse of a 
 reasonable time, without communication of tbe acceptance [tliis 
 seems intended, notwithstanding the unqualified language of s. 5, 
 to cover the case of an acceptance sent by post being lost or seriously 
 delayed]. 
 
 (3.) By the failure of the acceptor to fulfil a condition precedent 
 to acceptance ; or, 
 
 (4.) By the death or insa)iiti/ of the proj)oser, if the fact of his death 
 or insanity comes to the knoivledge of the acceptor before acceptance. 
 
 [The words in italics do not represent English law.] 
 
 7. In order to convert a pro]30sal into a promise, the acceptance Accept- 
 must ancemust 
 
 be abso- 
 
 (1) be absolute and unqualified ; lute. 
 
 (2) be expressed in some usual and reasonable manner, unless the 
 proposal prescribes the manner in which it is to be accepted. If the 
 proposal prescribes a manner in which it is to be accej)ted, and the 
 accoj)tance is not made in such manner, the proposer may, within 
 a reasonable time after the accejDtance is communicated to him, 
 insist that his proposal shall be accepted in the prescribed manner, 
 and not otherwise ; but if he fails to do so, he accej)ts the accej)t- 
 
 ance (a). Accept- 
 
 8. Pei'formance of the conditions of a proposal, or the acceiDtance ^ppfQ,™. 
 of any consideration for a recij)rocal promise which may be offered ing condi- 
 with a proposal, is an acceptance of the proposal. tions or 
 
 9. In so far as the jsroposal or accej^tance of anj' promise is made cons'idei-a- 
 
 in words, the promise is said to be express. In so far as such i^ro- tion. 
 
 posal or acceptance is made otherwise than in words, the promise is Promises 
 
 said to be implied. express 
 
 ^ and im- 
 
 [(() CoTo^HTQ Lcathcr-CIoth Co. X. a substituted contract ; and there- 
 
 Hieronimus, L. E. 10 Q. B. 140. fore no special memoraudiun of such 
 
 There goods were ordered to be alleged substituted contract was 
 
 sent by an unusual route for a special required to satisfy the Statute of 
 
 reason ; this reason ceased to exist Frauds. Sec further, as to the dif- 
 
 before the order could be executed, f erence between a substituted agrce- 
 
 and the goods were sent by the mcnt aud substituted 2^^''fo^'>»tnce, 
 
 iisual route : the Court held that Sanderson v. Graves, L. R. 10 Ex. 
 
 this, being acquiesced in by the 231 ; Hickman v. Ifai/iies, L. R. 10 
 
 buyer, was a sufficient pei-foi-mance C. P. o98 ; F/evuis x. Dociiiiif/, 1 
 
 of the original contract, and not of C. P. D. 220. 
 
 plied.
 
 640 
 
 APPENDIX, 
 
 Adams i\ 
 Lindsell. 
 
 Dunmoro 
 
 r. Alfxan- 
 dcr (Sc). 
 
 Note B. (p. 35). 
 
 Authorities on Contract hy Correspondence, 
 
 The first case of any imj)ortance is Adams v. Lindsell, 1 B. & Aid. 
 681. Defendants -nroto to plaintiffs, "We now offer you 800 tods 
 of wether fleeces, &c." (specifying price and mode of delivery and 
 payment), " receiving your answer in course of j)ost." Here, there- 
 fore, the mode and time for acceptance were prescribed. This 
 letter was misdirected, and so arrived late. On receiving it, the 
 plaintiffs wrote and sent by 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 mean- 
 time (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 received. 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 mistake of the defendants, and it there- 
 fore 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 : An acceptance 
 by letter is complete as against the proposer from the date of posting 
 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 jiroposer, and the com- 
 munication of the acceptance is consequently delayed, such delay is 
 not to be reckoned against the acceptor. 
 
 In the Scotch case of Dunmore v. Alexander, 9 Shaw & Dunlop, 
 1!K), an acceptance and revocation were written at different times 
 but pf)Hted and received at the same time : held that the revocation
 
 CONTRACT BY CORRESPONDENCE. 641 
 
 •was effectual. No distinction was taken between postal and other 
 communications. The French Court of Cassation similarly held in 
 1813 that when an acceptance and the revocation of it arrive to- 
 gether there is no contract. MerUn, Eepertoire, Vente, § 1, Art. 3, 
 No. 11 his, Langdell Sel. Ca. Cent. 155. 
 
 In Potter v. Sanders, 6 Ha. 1, the posting of a letter of acceptance Potter r. 
 is said to be an act which "unless interrupted in its progress" con- "^^ ^^^' 
 eludes 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. 
 
 Then comes Dunlop v. IIig(jins, 1 H. L. C. 381, a Scotch appeal Dunlop v. 
 decided by Lord Cottenham. Here the proposal did not prescribe ^S'o^'^^- 
 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 2 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 con- 
 cluded by the posting of the acceptance (within the prescribed or a 
 reasonable time), and that it mattered not what became of the letter 
 afterwards. It appears to have been so understood in Duncan 
 V. Topham, 8 C. B. 225, where, however, the decision was on other 
 grounds. 
 
 The later cases arose out of applications for shares in companies Hebb's ca. 
 
 being: made and answered by letter. IlelVs case, 4 Eq. 9, decides ^do^ f^eid- 
 *= -^ . T path s ca. 
 
 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 application. But the same judge (Lord 
 
 Eomilly) held in JleidpatJi's case, 1 1 Eq. 86, that the applicant was 
 
 not bound if he never received the letter. 
 
 In British and American Telegrajjh Company v. Colson, L. E. 6 British 
 
 Ex. 108, it was found as a fact that the letter of allotment was never ^" . 
 
 American 
 
 received. The Court (Kelly, C.B., Pigott, B., and Bramwell, B.) Telegraph 
 held that the defendant was not bound, and endeavoured to restrict Co. v. 
 the effect of Dunlop v. Hi<j(jins. Colson. 
 
 In Townsend's case, 13 Eq. 148, the letter of allotment miscarried, To-vyn- 
 and was delayed some days by the apiDlicant's own fault in giving 
 a defective address. By a simple apiilication of Adams v. Lindsell 
 (expressly so treated in the judgment, j). 154) it was held that the 
 applicant was bound, and that a withdrawal of his application, 
 
 P. r T
 
 VA-2 
 
 APPENDIX. 
 
 Harris' ca, 
 
 Wall's ca. 
 
 American 
 and 
 foreign 
 autho- 
 rities. 
 
 posted (and it seems delivered, p. 151) before lie actually received 
 the letter of allotment, was too late. 
 
 In Harris' case, 7 Ch. 587, the letter of allotment was duly- 
 received, but in the meantime the applicant had written a letter 
 withdrawing his application on the ground of the delay (ten days) 
 in answering it. These letters crossed. The Lords Justices (James 
 and Mellish) held that the ajaplicant was bound, on the authority of 
 Dunlop V. Higghis, with which they thought it difficult to reconcile 
 British and Amer. Tdegrapli Co. v. Colson («). On this, however, 
 no i^ositive opinion was given, "because although the contract 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). 
 
 In WaWs case, 15 Eq. 18, 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 construction was held by the Court of 
 Appeal in Household Fire Insurance Co. v. Grant, 4 Ex. D. 216, 
 p. 34, above, to be the correct one. 
 
 The American case of TayJoe v. Merchants' Fire Insurance Co., 9 
 How. S. C. 390, decided by the Supreme Court in 1850, is of less 
 importance to English readers than it was a few years ago, the 
 ground being now fully covered by our own decisions. But it may 
 still be useful to give some account of it. The insurance company's 
 agent wrote to the plaintiff offering to insure his house on certain 
 terms. The plaintiff wrote and posted a letter accepting these 
 terms, which 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 accept- 
 ance of 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 jjartics. This 
 decides that a contract is complete as against the proposer by jDosting 
 a letter which is duly delivered. It may 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 consvimmatcd without a 
 
 (rt) It .seeiiiH iu)l to liiivo Lccn di.s- Mas iu fact scut within a reasonable 
 piltcd iliut flic letter of iilliitmeiit time.
 
 CONTRACT 15Y COKRESroXDEXCK. ()4;j 
 
 knowledge on the j^art of the company that the offer has been 
 accepted. 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 
 onlj^ exist where both parties are i^resent. . . It is obviously 
 impossible ever to perfect a contract by correspondence, if a know- 
 ledge of both parties at the moment they become bound is an 
 essential element in making out the obligation. . . It seems to us 
 more consistent with the acts and declarations of the parties to con- 
 sider it comjilete 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 ? And why require any further assent on 
 their part after an unconditional acceptance by the party to whom 
 it is addressed ?" (Pp. 400, 401.) See also 7 American Law Review, 
 433, "Contract by Letter," where American and French oijiuions 
 are collected; and for modern German theories on the subject, 
 Vangerow, Pand. § 603, Windscheid, Pand. § 306. The German 
 writers are driven to strange shifts to find semblances of authority 
 in the Quellen on these modern controversies. 
 
 There seems to bo a fair consensus of authority, such as there is, Place of 
 
 for holding that the place to which a contract made by correspon- contract _ 
 
 ° ^ i. • 1 where it is 
 
 dence should be referred is that whence the acceptance is des- made by 
 
 patched. Savigny, Syst. 8, 253, 257 ; Newcomh v. De Boos, 2 E. &E. correspon- 
 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 writer's place of business in the city, the 
 whole cause of action arises in the city. 'Taylor v. Jones, 1 C. P. D. 
 87. So in criminal law a false pretence contained in a letter sent 
 by post is made at the place where the letter is posted. Beg. v. 
 Holmes, 12 Q. B. D. 23. 
 
 The German Commercial Code has the following provisions on German 
 this subject :- darCode. 
 
 318. When a commercial contract is proposed between parties 
 present at the same time, the acceptance must be immediate ; 
 otherwise the proposer is no longer bound to his proposal. f 
 
 319. When a proposal is on foot between parties at a distance, 
 the proposer remains bound until the time at which he may fairly 
 expect an answer to reach him if despatched in ordinary course and 
 in due time.t In estimating this time he maj' assume that his 
 
 tt2 
 
 dencc.
 
 644 APPENDIX. 
 
 proposal was duly received [surely not if, as iu Adams v. TAiul- 
 sell (a), it was delayed by his own negligence P] 
 
 In the event of an accei^tance despatched in due time not arriving 
 till after such time as aforesaid, no contract is concluded if the 
 proposer has given notice of revocation in the meantime, or gives 
 it forthwith {ohne Verzug) on receiving the acceptance. 
 
 [The clauses marked f seem only to say in a rather elaborate way 
 that a proposal is revoked by the lapse of a reasonable time without 
 acceptance ; s. 319, however, tacitly involves the important pro- 
 position — now negatived, as we saw in the text, by English law — 
 that an answer which never arrives, whether sent by post or other- 
 wise, cannot conclude a contract.] 
 
 320. When the revocation of a proposal reaches the other party 
 before or at the same time with the proposal itself, the proposal 
 is deemed null and void (ist fiir nicht geschehen zu erachten). 
 
 In like manner the acceptance is deemed null and void if the 
 revocation has been communicated to the proposer before the 
 acceptance or at the same time with it. 
 
 321. Where an agreement has been concluded between parties at 
 a distance, the conclusion of the agreement is to be dated from the 
 time at which the communication of the acceptance was delivered 
 for despatch [out of the acceptor's control ?] (in welchem die Er- 
 klarung der Annahme Behufs der Absendung abgegeben ist). 
 
 322. An acceptance subject to conditions or reservations is equi- 
 valent to a refusal coupled with a new proposal. 
 
 The subject is dealt with by the Swiss Federal Code of Obliga- 
 tions (in force since January 1, 1883), on the same lines, but rather 
 more fullj', in Articles 1 — 8. We subjoin the French text. 
 
 I. Des Obligations E^sultant d'un Conteat. 
 De la conclusion des contrafs. 
 
 Article ijreraier. II n'y a contrat que si les parties ont manifoste 
 d'une maniere concordante leur volonte reciproque. Cette mani- 
 festation pent etre expresse ou tacite. 
 
 2. Si les parties se sent mises d'accord sur tous les points essen- 
 tiels, cllcs sont presumees avoir entendu s'obliger definitivement, 
 encore qu' cllcs aient reserve certains points secondaires. 
 
 A defaut d'accord sur ces points secondaires, le jugo les regie en 
 tenant compto do la nature de I'affairo. 
 
 II n'ost pas prejuge par les prescntes dispositions aux regies con- 
 comant la forme des contruts. 
 
 {<i) 1 B. & Aid. 08 1.
 
 CUNTRACr HV ( OH liKSPONDENCK. 04-"J 
 
 3. Toute personne qui projiose a iiue autre la conclusion d'un 
 contrat en lui fixant un dclai pour accejiter, est liee jiar son offre 
 jusqu'a Texpiration du delai. EUe est degagee, si I'acceptation ne 
 lui est pas parvenue avant le terme fixe. 
 
 4. Lorsque Toffre a ete faite a una personne presente sans fixation 
 d'un delai pour I'acceptation, I'autcur de I'offre est degage si I'ac- 
 ceptation n'a pas lieu sur-le-cliamp. 
 
 o. Lorsque I'offre a ete faito sans fixation de delai a uno per- 
 sonne non presente, I'aiiteur de I'offre reste lie jusqu'au moment 
 ou il pent s'attendre a I'arrivee d'une reponse qui serait expediee a 
 temps et regulierement. II a le droit d'admettre, pour le calcul a 
 etablir, que le destinatairo a re(;u I'offre en temps voulu. 
 
 Si Taccei^tation expediee a temps parvient tardivement a I'auteur 
 de I'offre et que celui-ci entende ne plus etre lie, il doit, sous peine 
 de dommages et interets, en informer immediatement I'acceptant. 
 
 Lorsqiie, a raison de la nature speciale de I'affaire proposee, 
 I'auteur de I'offre devait ne jias s'attendre a une acceptation ex- 
 presse, le contrat est repute conclu si I'offre n'a pas ete refusee 
 dans un delai convenable. 
 
 6. L'auteur de I'offre n'est pas lie lorsqu'il a fait a cet egard des 
 reserves formelles (par exemple, jjar I'adjonction des mots : " sans 
 engagement "), ou si son intention de ne pas s' engager resulte 
 necessairement soit des circonstances, soit de la nature speciale de 
 I'affaire proposee. 
 
 7. L'offre est consideree.comme non avenue, si le retrait en par- 
 vient a I'autre partie avant I'offre ou en meme temps. 
 
 De meme, I'acceptation est consideree comme non avenue, si le 
 retrait en parvient a I'auteur de I'offre avant I'acceptation ou en 
 memo temps. 
 
 8. Lorsqu'un contrat est intervenu entre absents, il deploie ses 
 effets a dater du moment ou I'acceptation a ete expediee. 
 
 Lorsqu'une accei^tation expresse n'est pas necessaire, les effets 
 du contrat commencent a dater de la reception de I'offre non 
 refusee. 
 
 The Italian Commercial Code in force since Jan. 1, 1883, takes a Italian 
 somewhat different line, to the following effect (Art. 36) :— SafcSie 
 
 A contract made by correspondence is complete only if the accept- 
 ance is received by the proposer within the time prescribed by him 
 (if any), or otherwise a reasonable time. But the proposer may 
 ratify an overdue acceptance by forthwith giving notice to the 
 proposer. 
 
 Where the proposal is such that acceptance involves immediate 
 action, and a previoiis acceptance in terms is not required by the
 
 646 
 
 APPENDIX. 
 
 terms of the proposal or by the usage of business, the contract is 
 concluded by the acceptor acting on the proposal. 
 
 Both proposal and acceptance are revocable before the conclusion 
 of the contract. But if the acceptor has begun to act on the jjro- 
 posal before receiving notice of its revocation, the proposer is liable 
 to him for resulting damage. 
 
 These rules apply only to bilateral contracts. Unilateral pro- 
 mises become binding as soon as they come to the knowledge of 
 the promisee. 
 
 Separate 
 estate : 
 Power of 
 alienation. 
 
 Note C. (p. 86). 
 
 History of the Equitahle Doctrine of Separate Estate. 
 
 '^Mien 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 conveyancers had any pur- 
 pose 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 settle- 
 ments to express what is now sufficiently expressed by the words 
 "for her separate use," will at once suggest themselves as confirm- 
 ing this. In course of time, however, it was found that by recog- 
 nizing this separate use the Court of Chancery had in effect 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 disposition were accordingly admitted, including aliena- 
 tion by way of mortgage or specific charge as well as absolutely ; 
 and we find it laid down in general terms about a century ago that 
 a feme covert acting with respect to her separate property is com- 
 petent to act as z.feme sole [a). Nevertheless the equitable owner- 
 ship 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 (6). From a mortgage or specific charge on separate 
 property to a formal contract under seal, such as if made by a 
 person sui iuris would oven then have bound real estate in the 
 
 (/•/) Jlxlme V. Tenant, 1 Wh. & T. 
 L. C. In J'vdcock V. M(»ik, 2 Vc8. 
 Kr. 100, tliero rcforred to l)y Lurd 
 Thui'low, no Huch g-cucral rule is 
 expressed. As to the recognition of 
 
 separate property by Courts of Com- 
 mon Law, see Duncan v. Canhin, L. 
 11. 10 C. P. 651. 
 
 {b) Taylor v. Meads, 4 D. J. S. 
 597 ; rride V. Biihh, 7 Ch. G4.
 
 SKrAKATK ESTAl'K. 647 
 
 hands of his heir, we may suppose the transition did not scorn 
 ■violent ; and instruments expressing such a contract to be entered 
 into by a married woman came to bo regarded as in some way 
 binding on any separate property she might have. In what way Power to 
 they were binding was not settled for a good while, for reasons bind the 
 best stated in the words of V.-C. Kindersley's jiidgment in Vamjluin ^^'^f'l^-u 
 y. Vanrhrstegen («). formal in- 
 
 '• The Courts at first ventured so far as to hold that if " a married stnimcnts: 
 woman " made a contract for payment of money by a written in- ^•^^, „j^.gj, 
 strument with a certain degree of formality and solemnity, as by a by V.-C. 
 bond under her hand and seal, in that case the property settled to Kinders- 
 her separate use should be made liable to the pajTnent of it ; and ^ * 
 this principle (if i:)rinciple it coidd 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 in- 
 strument. But still the Courts refused to extend it to a verbal 
 agreement or other assumpsit, and even as to those more formal 
 engagements which the}" did hold to be payable out of the separate 
 estate, they struggled against the notion of their being regarded 
 as debts, and for that purpose they invented reasons to justify the 
 application of the separate estate to their paj^ment 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 
 married woman was in reality the execution of a power of appoint- 
 ment (&), and that a formal and solemn instrument in writing 
 would operate as an execution of a power, which a mere assumj^sit 
 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 intention to create such special charge, 
 because otherwise it could not have any operation." 
 
 Both these suggestions are on the later authorities untenable, as EarUer 
 indeed V.-C. Ivindersley then (1853) judged them to be(c); the doctrines 
 theory of specific charge was revived in the later case of Shattock v. tenable" 
 Shattock (d), but this must be considered as overruled (e). One or 
 two other suggestions — such as that a married woman should have 
 only such power of deahng with her separate estate as might be 
 
 (a) 2 Drew. 165, 180. the notions of power and charge are 
 
 (i) £.ff. Duke of Bolton v. Wil- both dismissed as inapplicable by 
 
 liatns, 2 Ves. at p. 149. Lord Gotten ham. 
 
 (r) Cp. Mtirrau v. Barlee, 3 M. & ((/) 2 Eq. 182, 193. 
 
 K. 209, where the arguments show (e) Eohinsoti v. Tickerififf, C. A., 
 
 the history of the doctrine, Owens y. 16 Ch. D. 660. 
 
 Dickenson, 1 Cr. & Ph. 48, 53, where
 
 648 
 
 APPENDIX. 
 
 Judgment 
 of Ttirner, 
 L.J. in 
 Johnson r. 
 Gallagher. 
 ' ' General 
 engage- 
 ments ' ' 
 may bind 
 separate 
 estate 
 without 
 special 
 form, but 
 with 
 
 proved or 
 presumed 
 intention : 
 rules as to 
 this. 
 
 expressly given her by the instrument creating the separate use — 
 were thrown out about the beginning of this century (a), 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 against 
 in another way by the device of the restraint on anticipation, a s 
 curious an example as any that English law presents of an anomaly 
 grafted on an anomaly (&). 
 
 The naodern locus classicus on the subject is the judgment of 
 Turner, L.J., in Johnson v. Gallagher (c), which had the full 
 approval of the Judicial Committee in London Chartered Bank of 
 Australia v. Lempriere {d). It had already been distinctly followed 
 in the Court of Appeal in Chancery as having placed the doctrine 
 upon a sound foundation (e). The general result was to this 
 effect : 
 
 "Not only the bonds, bills, and promissory notes of married 
 women, but also their general engagements, may affect their sepa- 
 rate estates " (3 D. F. J. 514) : and property settled to a married 
 woman's separate use for her life, with power to dispose of it by 
 deed or will, is for this purpose her separate estate (/). 
 
 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 
 unless 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. E. 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 Manly v. Scott in 
 2 Sm. L. C.) 
 
 («) See Jones v. JTfrris, 9 Vcs. 
 48G, 497 ; I'ar/as v. Illiife, II Ves. 
 209, 220 sqq. ; and collection of 
 casfiy .5 Vcs. 17, note. 
 
 (A) See Lord Cottenham's judg- 
 ment in Tullett v. Armsfronff, 4 M. & 
 
 Cr. 393, 405. 
 
 (f) 3 D. F. J. 494, 509 sqq. 
 
 {d) L. R. 4 P. C. 572. 
 
 {(') I'icardy. Hinc, 5 Ch. 274. 
 
 (/) Mdijd V. Field, 3 Ch. D. 587, 
 593.
 
 SEPARATE ESTATE. 649 
 
 The like iutention is infer-i-ed where the transaction would be 
 otherwise unmeaning, as where a married woman gives a guaranty 
 for her husband's debt (a) or joins him in making a promissory 
 note (6). 
 
 The " engagement" of a married woman differs from a contract, 
 inasmuch as it gives rise to no personal remedj^ against the married 
 woman, but only to a remedy against her separate property (c). 
 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) (cZ). 
 
 In cases where specific performance would be granted as between 
 parties siii iuris, a married woman may enforce specific perform- 
 ance 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 performance against her separate estate (e). 
 
 The language of the Judicial Committee we have cited as to the The sepa- 
 married woman's intention of making herself- -that is, her separate ^'^*° estate 
 property— the debtor, suggests that the separate estate may be artificial 
 regarded as a sort of artificial person created by Courts of Equity, person. 
 and represented by the beneficial owner as an agent with full 
 powers, somewhat in the same way as a corporation sole is re- 
 presented by the person constituting it for the time being. As a 
 contract made by the agent of a corporation in his employment 
 can bind nothing but the coporate property (/), the engagement 
 of a married woman can bind nothing but her separate estate. 
 This way of looking at it is no doubt artificial, but may possibly be 
 found to assist in the right comprehension of the doctrine. 
 
 Some instances of ordinary contracts which may be incidental to Applica- 
 the management and enjoyment of separate estate, so that it would ti^^^'^- 
 
 (a) Morrell v. Cowan, 6 Ch. D. that a creditor of a married woman 
 
 166 (reversed 7 Ch. D. 151, but only on the faith of her separate estate 
 
 on the construction of the docu- is not thereby entitled to a charge 
 
 ment), where no attempt was made on her separate property, or to an 
 
 to dispute that the guaranty, though injunction to restrain her from 
 
 not expressly referring to the sepa- deaUng with it. 
 rate estate, was effectual to bind it. (c) The cases cited in Sug. V. &P. 
 
 {h) Dalies x. Jenkins, 6 Ch. D. 206, so far as inconsistent with the 
 
 728. modern a\ithorities (see Picard v. 
 
 (c) Hence, before the Act of 7/i«e, 5 Ch. 274, wherethe form of 
 1882, the married woman, not decree against the separate estate is 
 being a real debtor, was not sub- given, Fride v. Bxbb, 7 Ch. 64), 
 ject to the bankruptcy law in re- must be considered as overruled, 
 spect of her separate estate: Ex (/) Unless, of course, he contracts 
 parte Jones, 12 Ch. D. 484. in such a way as to make it also his 
 
 [d) Ace. Robinson v. Piekering, own personal contract. 
 C. A. 16 Ch. D. 660, which decided
 
 650 
 
 APJ'ENDIX. 
 
 EflEect of 
 cessation 
 of cover- 
 ture. 
 
 Liability 
 of separate 
 estate for 
 debts 
 before 
 
 be liiglily iaconvenient if the separate estate were not bound by 
 them, are given in the judgment of the Judicial Committee above 
 referred to (L. E. 4 P. 0. at p. 594), 
 
 A married woman's engagement relating to her sej^arate projierty 
 will have the same effect as the true contract of an owner sui iuris 
 in creating an obligation which will bo binding on the property in 
 the hands of an assignee with notice (a). 
 
 If a married woman becomes sui iuris by the death of the husband, 
 judicial separation or otherwise, what becomes of the debts of her 
 separate estate ? It appears that they do 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 when she became sui iuris, but 
 not any other property. Property subject to a restraint on antici- 
 pation cannot in any case be bound {b). A kindred and still open 
 question is this : Can the sej)arate estate of a woman married before 
 Januarj' 1, 1883, be held liable for her debts contracted before 
 marriage ? Apart from recent legislation it seems no less difficult 
 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 (c) ; 
 but Malins, V.-C, seems to have decided this case partly on the 
 ground that the bankrui)tcy was evidence that the settlement of the 
 property to the wife's separate use was fraudulent as against her 
 creditors. Before the Debtors Act, 1869, when a married woman 
 and her husband were sued at law on a debt contracted by her 
 before the marriage and either the husband and wife or the wife 
 alone had been taken in execution, the wife was entitled to be dis- 
 charged only if she had not separate property out of which the debt 
 could be paid(fZ); and an order for payment can now be made 
 under s. 5 of the Debtors Act on a married woman, and the exist- 
 
 (rt) Per Jcssol, M. 11., IFarnc v. 
 Routkdgc, 18 Eq. 500. 
 
 (i) I'ike V. Fiizgibbo)!, C. A. 17 
 Ch. D. 454. Earlier cases are in- 
 do'risivc. For the view takt'ii in the 
 Court below in JdJiuko)! v. (!(ill<((jhcr, 
 wlicre the bill w'as filed after the 
 death of the husbaud, see 13 D. 
 r. J. 495, and the decree appealed 
 from at ]>. 197. 
 
 {(•) Chiibh V. Stretch, 9 Eq. 555, 
 following .CiACocv. Komcdy, briefly 
 reported in marginal note to Jlidme 
 V. Taiaiit, 1 Bro. C. C. 17. The 
 decision of tlic C. A. in Pike v. Fitz- 
 gibbon throws great doubt on this. 
 
 {(l) Irnis V. Jhitin; 7 E. & B. 
 159, -m L. J. Q. B. 115; Jayx. 
 AmjMett, 1 H. & C. 637, 32 L. J. 
 Ex. 176.
 
 qucerc. 
 
 SEPARATE ESTATE. G51 
 
 ence of sufficient separate estate would justify commitment in 
 default («). But the practice of the Courts in the exercise of this 
 kind of judicial discretion does not throw much light on the ques- 
 tion of a direct remedy. 
 
 On principle it should seem that a married woman's engagement IIow far is 
 with respect to her separate estate, while not bound by any peculiar ^ mamed 
 forms, is on the other hand bound in every case by the ordinary "oDffao-e- 
 forms of contract ; in other words, that no instrument or transac- ment" 
 tion can take effect as an engagement binding separate estate fi°^ j- 
 which could not take effect as a contract if the party were sui iuris. nary forms 
 That is to say, the creditor must first produce evidence appropriate of con- 
 to the nature of the transaction which would establish a legal debt ^^^'^^ • 
 against a party sui iuris, and then he must show, by proof or pre- 
 sumption as explained above, an intention to make the separate 
 estate the debtor. There is, however, a decision the other way. McHenry 
 In McHenry v. Jkivies (h), a married woman, or rather her sejiarate '"• I^^-'^ies : 
 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 law. 
 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 
 intelligible on the assumption that engagements bind separate 
 estate only as specific charges ; the fact that the instrument 
 creating the charge simulated more or less successfully a bill of 
 exchange would then be a mere accident (c). The judgment bears 
 obvious marks of this theory ; we have seen indeed that it was ex- 
 pressly adojDted by the same judge in an earlier case {d), and we 
 have also seen that it is no longer tenable. Take away this as- 
 sumption (as it must now be taken away) and the reasoning proves 
 far too much : it would show that the indorser sui iuris of a bad 
 bill of exchange ought to be bound notwithstanding the law mer- 
 chant, because he has expressed his intention to be bound. The 
 true doctrine being that the " engagement " differs from a contract 
 not in the nature of the transaction itself, but in making only the 
 separate estate the debtor, it follows that in all that relates to the 
 
 {a) Dillon V. CHuninyliam, L. R. (c) Note, however, that in the 
 
 8 Ex. 23. Here the married woman case of parties sui iuvis a bill of 
 
 had been sued alone, and there was exchange cannot be treated as an 
 
 no plea of coverture : but probably equitable assignment : Sliaudw. iJx 
 
 the same course would be taken in liiiisso)/, 18 Eq. 283. Nor a cheque: 
 
 the case of a judgment against Ilopkinson v. Fouler, 19 Eq. 74. 
 
 husband and wife for the wife' 8 debt {d) Shaltock v. Shaltock, 2 Eq. 
 
 diim sola. 182 ; supra, p. 647. 
 
 {l>) 10 Eq. 88.
 
 -652 
 
 APPENDIX. 
 
 Statute of 
 Limita- 
 tion. 
 
 Can the 
 separate 
 estate be 
 made 
 
 liable on a 
 quasi-con- 
 tract? 
 
 transaction itself the ordinary rules and limitations of contract 
 apply. In Johnson v. OaUagher it is assumed that a married 
 woman's engagements concerning her separate interest in real 
 estate must satisfy the conditions of the Statute of Frauds («). An 
 engagement which if she were sui htris would 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 McHenry v. Davies (b) is not law on this point. 
 
 It has been held that the Statute of Limitation, or rather its 
 analogy, does not apply to claims against the separate estate ; first 
 in an obscurely reported case at the Eolls in 1723, when the modern 
 doctrine had not come into existence (c), and then in a modern Irish 
 case where the Chancellor adopted this decision, and adhered to his 
 opinion on appeal, the Lord Justice dissenting ((Z). These authori- 
 ties, such as they are, have been followed by Bacon, V.-C. (e). 
 
 It is said that a married woman's separate estate cannot be made 
 liable as on a contract implied in law {quasi-contract in the proper 
 sense) as for instance to the repayment of money paid by mistake 
 or on a consideration which has wholly failed (/). But the deci- 
 sions to this effect belong (with one exception) to what we have 
 called the j^eriod 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 Wright v. Chard {g), where 
 y.-C. Kindersley held that a married woman'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 prece- 
 dent 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 admitted 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 sei^arate estate, that position must be carried 
 
 (rt) 3 D. F. J. at p. 514. 
 [h) 10 Eq. 88. 
 
 (c) N<irto)t V. Tiirril/r, 2 P. Wms. 
 144, aud SCO 8 Ir. Cli., appx. 
 
 [d) f'(iii'//i(iH V. Wulkir, G Ir. Ch. 
 471, 8 ih. 458. 
 
 [r) Hodgson \. WiUifOHno)!, 16 Ch. 
 D. ,H7. 
 
 (/) 3 D. F. J. 512, 514, referring 
 to iJulr of Jlolton v. WiUiam/s, 2 
 Yes. 138 ; Junes v. Harris, 9 Ves. 
 493, and Aguilar v. Aguilar, 5 
 Madd. 414. 
 
 {<!) 4 Drew. 673, G85 : on ajipeal, 
 1 D. F. J. 567, but not on this 
 point.
 
 APPENDIX (note d). 653 
 
 to the full extent, short of making her personally liable." The test 
 of liability would seem on principle to bo whether the transaction 
 out of which the demand arises had reference to or was for the 
 benefit of the separate estate. 
 
 The spirit of the modern authorities is, on the whole, in the Tendency 
 direction of holding that a married woman's " engagement" differs o„+v,oritv 
 from an ordinarj' contract only in the remedy being limited to her and legis- 
 separate property. And on this view the Married Women's Pro- lation. 
 perty Act of 1882 is framed. 
 
 Note D. (p. 128, above). 
 
 Authorities on limits of corporate powers. 
 
 The citations here given are intended to show how the three 
 distinct topics of the powers of corporations as such (a), and the 
 application to them of (0) the rules of partnership and (7) the prin- 
 ciples of public policy, have been treated by our Courts, sometimes 
 together and sometimes separately. They are arranged in an order 
 approximately following that in which these toj^ics have been men- 
 tioned, according as one or the other is most prominent : a precise 
 division would be impossible without breaking up passages from the 
 same judgment into many fragments, but the indicating letters (« (3 7) 
 are used to call attention to the presence of the above-mentioned 
 special classes of considerations respectively. It may be observed 
 that some of those dicta which seem most strongly to adopt on the 
 first head the theory of limited special capacities occur in the imme- 
 diate neighbourhood of statements coming under one or both of 
 the other heads, which in all probability have had an appreciable, 
 though it may be an undesigned ojieration in modifying the form 
 of their expression. 
 
 Capacities incident to incorporation generaJhj. Resolution of Ex. Capacities 
 Ch. in the case of Sutton's Hospital, 10 Co. Eep. 30 b :— incident to 
 
 " When a corporation is duly created all other incidents are tacite ^^^^ Sut- 
 annexed .... and therefore divers clauses subsequent in the ton's Hos- 
 charter are not of necessity, but only declaratory, and might well pital case. 
 have been left out. As, 1. by the same to have authority, ability, 
 and capacity to purchase ; but no clause is added that they may 
 alien, &c., and it need not, for it is incident. 2. To sue and be sued, 
 implead and be impleaded. 3. To have a seal, &c. ; that is also
 
 654 APPENDIX. 
 
 declaratory, for when they are incorporated they may make or use 
 what seal they will. [So Shepp. Touchst. 57 : ' although it be a 
 corporation that doth make the deed, yet they may seal with any 
 other seal besides their common seal, and the deed never the worse.'] 
 4. To restrain them from aliening or demising, but in a certain 
 form ; that is an ordinance testifying the King's desire, but it is 
 but a precept and doth not bind in law." 
 
 This resolution does not seem to have been very material to the 
 decision of the case, but anything reported by Coke is by inveterate 
 custom exempt from criticism of this kind ; moreover it is supported 
 by the oijinion of Ilobart, C. J., who says that a power to make 
 by-laws, though given by a special clause in all incorporations, is 
 needless ; ' ' for I hold it to be included by law in the very act of 
 incorporating, as is also the power to sue, to purchase, and the like." 
 (Hob. 211, pi. 268.) This very positive statement was all but lost 
 sight of in modern cases (a) till it was cited by Blackburn, J., in 
 Richer. AsJibury Ry. Carriage Co., L. E. 9 Ex. 263-4: — 
 
 ' ' This seems to me an express authority that at common law it is 
 an incident to a corporation to use its common seal for the purpose 
 of binding itself to anything to which a natural person could bind 
 himself, and to deal with its projDcrty as a natui-al person might 
 deal with his own. And further, that an attempt to forbid this on 
 the part of the King, even by express negative words, does not 
 bind at law (i). Nor am I aware of anj' authority in conflict with this 
 case .... I take it that the true rule of law is that a corporation 
 at common law has, as an incident given by law, the same power 
 to contract, and subject to the same restrictions, that a natural 
 person has. And this is important when we come to construe the 
 statutes creating a corj)oration." 
 
 Growth of We will now shortly trace the growth of the doctrine of special 
 
 the con- capacities in Colmanx. Eastern Counties By. Co., 10 Beav. 1, and 
 
 trine in similar cases. The subject was novel, many-sided, and embarrass- 
 
 modem ing ; Parliament was called on to make and the Courts to construe 
 
 times. statutory powers and provisions the like of which had seldom if 
 
 ever been made or construed in earlier times ; and so many new 
 
 points arose for legislative precaution and judicial discussion, and 
 
 it took so much time and labour to disentangle them, that it never 
 
 occurred to anybody to think that the common law could have 
 
 {a) Tt is cited by Erie, J. in violation of the conditions of the 
 
 liosiovk V. N. Staffurdshlre lii/. ('o. chiirtcr is not void, but the Crown 
 
 4 E. & B. 798, 819, 24 L. J. Q. li. has a remedy by proceeding by sci. 
 
 22b. fa. for the repeal of the letters 
 
 {//) That is, a corporate act in i)atent, see iO. p. 2G4.
 
 ].IM1TS OF ( OKl'ORATK I'OWEKS. (355 
 
 unything of importance to say to the matter. To speak plainly, it 
 is clear enough, that Parliament had forgotten all about the SuttoriS 
 Hospital case, and perhaps it is not surprising that the Courts did 
 not remember it. 
 
 In Colman v. E. C. Rii. Co., the suit was by a shareholder to Colman t'. 
 restrain the company and its directors from applying its funds in ^ ^- .J"" 
 promoting a steam-packet company in connexion with the railway, other cases 
 Injunction gi-anted. Lord Langdale, in the course of his judgment, in equity, 
 spoke of the exercise of a railway company's powers as a matter 
 affecting public rights and interests, and therefore to be looked into 
 with more vigilance than the conduct of an ordinary partnership, 
 and observed how desirable it was that the property of railway com- 
 panies should be secure from being pledged to unauthorized specu- 
 lations, so that investment in them might be prudent [7]. He 
 further expressed his clear opinion ' ' that the powers which are 
 given by an Act of Parliament, like that now in question, extend 
 no farther than is expressly stated in the Act, or is necessarily and 
 properly required for carrying into effect the undertaking and 
 
 works which the Act has expressly sanctioned They [the 
 
 company] have the power to do all such things as are necessary 
 and proper for the purj^ose of carrying out the intention of the 
 Act of Parliament, but they have no power of doing anything 
 bej'ond it." 
 
 Salomons v. Laing, 12 Beav. 339, also before Lord Langdale, was 
 a suit by a shareholder to restrain the London, Brighton and South 
 Coast Ey. Co., which was already lawfully possessed of many shares 
 in the Direct London and Portsmouth Co., from taking up moro 
 shai'es in that company and otherwise assisting it out of the South 
 Coast Co.'s funds. The M. R. said: "A railway company incor- 
 porated by Act of Parliament is bound to apply all the moneys and 
 property of the company for the purposes directed and provided for 
 by the Act, and for no other purpose whatever." He went on to 
 say that any surplus, after the purposes of the Act are fulfilled, 
 belongs to the shareholders as dividend, and cannot be disposed of 
 against the will of any shareholder [i?]. " Any application of or 
 dealing with .... any funds or money of the company .... in 
 any manner not distinctly authorized by the Act, is in my opinion 
 an illegal application or dealing" (p. 352). In a later stage of the 
 case (pp. 377, 382), he spoke of the arrangement between the two 
 companies as " fraud against the legislature, who gave them their 
 powers for purposes entirely different " [7]. The case of Cohen \. 
 Wilkinson (12 Beav. 125, 138; 1 Mac. & G. 481), which arose out 
 of the same series of transactions, decided that a railway company 
 is hound not onlv to mnko nothing- (liff«>rent hom. 's^"llat Parliament
 
 656 
 
 APPENDIX. 
 
 intended it to make, but to make nothing less than the whole : 
 abandoning a material part of the scheme is in fact equivalent to 
 substituting a different scheme (cp. Hodgson v. Earl of Powis, 1 
 D. M. G. 6). 
 
 In Bagshaw v. East Union Ry. Co. (7 Ha. 114) it was laid down 
 that capital raised under an Act of Parliament for a specific purpose 
 defined bj' the Act cannot be applied by directors (and probably 
 not by the unanimous assent of the shareholders) to any other 
 purpose than such as the comjjany's general funds might be applied 
 to [7] : in the Court of Appeal (2 Mac. & G. 389) the case was put 
 more on the ground of the individual shareholder's right to have his 
 money applied only to the specific purpose for which he advanced 
 it [3]. 
 
 In the subsequent cases of Beman v. Ruff or d, 1 Sim. N. S. 550 
 (Lord Cranworth, V.-C.) and G. N. Railway Co. v. E. C. Railway 
 Co., 9 Ha. 306 (Turner, Y.-C), the point is that the statutory in- 
 corporation of a railway comjDany imposes on it, with reference to 
 the intei'ests of the public [7], a positive duty of maintaining and 
 working its line, and it must not enter into any agreement that 
 amounts to a delegation or abandonment of this duty ((f ) ; in Beman 
 V. Rufford, however, the strong expression occurs that, " on the 
 principle that has been so often laid down, this Court will not 
 tolerate that parties having the enormous powers which railway 
 companies obtain [7] should apply one farthing of their funds in a 
 way which differs in the slightest degree from that in which the 
 legislature has provided that they shall be applied " (p. 565). The 
 remarks of the Lord Justice Turner in the later case of Shrewsbury 
 & Birmingham Ry. Co. v. L. & N. W. Ry. Co., 4 D.M. G. 115, 132, 
 are less strong; in Simpson v. Westminster Palace Hotel Co., 2 
 D. P. J. 141, a dissenting shareholders' suit, he seems to confine 
 himself to the jiower of a meeting to bind the minority on partner- 
 ship princijiles [(3]. 
 
 We have dwelt so far on these decisions in this jDlace (though one 
 or two of them do not even in their language really postulate the 
 doctrine of limited special capacities) because they had much weight 
 at common iu East Anglian Railways Co. v. E. C. Railway Co., 11 C. B. 775, 
 ^^' 21 L. J. C. P. 23, which for some time was treated as a leading 
 
 case, and was the chief obstacle to the restoration of the common 
 law doctrine of " general capacity." Lord Bramwell has expressed 
 a distinct opinion that it was wrongly decided : 11 Ch. D., at p. 501 : 
 
 East 
 Anglian 
 Railways 
 case, &c. 
 
 (a) Afi a lease of the undertaking, 
 or grant of cxchixirr rininin<r jiowcrs 
 
 and control of the line to another 
 compiiny.
 
 ].IMITS OF COllI'ORATK POWKRS. 657 
 
 it is here cited, liowever, iov its iinportaiico in the history of the 
 subject. It was in effect the case of an agreement by one railway 
 company to j^romote the undertaking of another. The Court said : 
 "It is clear that the Defendants have a limited authority only, 
 and are a corporation only for the purpose of making and main- 
 taining the railway sanctioned by the Act, and that their funds can 
 only be applied for the jjurposes directed and provided for by the 
 statute." (Nor does it matter that an application of funds not 
 authorized by the Act is expected to be for the profit of the line.) 
 ' ' They are a corporation only for the purpose of making and main- 
 taining the Eastern Counties Eailway. Every proprietor when he 
 takes shares has a right to expect that the conditions upon which 
 the Act was obtained will be performed . . . the public also 
 has an interest in the proper administration of the powers conferred 
 by the Act [7]. ... If the company is a corporation onlj' for 
 a limited purpose, and a contract like that under discussion is not 
 within their authority, the assent of all the shareholders to such a 
 contract [(3], though it may make them all personally liable to per- 
 form their contract, would not bind them in their corporate capacity 
 or render liable their corporate funds." This was followed by 3Iac- 
 (jrecjor v. Dover and Deal Railway Co. (in Ex. Ch.), 18 Q. B. 618, 22 
 L. J. Q. B. 69. The plaintiff in error, the Chairman of the South 
 Eastern Eailway Co., had undertaken that his company should 
 guarantee certain parliamentary exi^enses of the Dover and Deal 
 Company. Held, on the authority of the last case, that the agree- 
 ment was void as an attempt to bind the S. E. Company to do 
 an act which to the knowledge of both parties would be illegal ; 
 " not merely an act which they have no power to do, but an act 
 contrary to public policy and the provisions of a jpublic Act of 
 Parliament " [7]. 
 
 In Hart v. Eastern Union Rij. Co., 7 Ex. 246, 21 L. J. Ex. 97, in 
 Ex. Ch. 8 Ex. 116, 22 L. J. Ex. 20, it was even contended, but 
 without success, that when a company was empowered by its Act 
 to borrow money on debentures, there was no right of action on 
 such debentures because the Act had no words expressly giving it, 
 and provided another special remedy in certain events. Cp. Slarh 
 V. Ilighgate ArcJnuay Co., Taunt. 792. 
 
 But this doctrine did not long pass unquestioned. The theory of Reaction 
 general capacity was upheld in S. Yorkshire By. & Eiver Dun Co. y. }^ >50Y. 
 G. N. By. Co., 9 Ex. 00, 22 L. J. Ex. 305. The action was on an ^^._ Co. v! 
 agreement that the defendant company should have the use of the 0-. N. E. 
 plaintiff company's line for carrying coal for 21 years, paying tolls , ^^ ^" 
 
 on a scheme framed to secure to the plaintiff company a dividend Parke, B. 
 P. U L
 
 Go8 APPENDIX. 
 
 varying witli the quantity of coal canictl. The defendant company 
 pleaded that the agreement was unauthorized and void. The argu- 
 ments turned a good deal on the question whether these payments 
 were such "tolls" as contemplated by the Eailways Clauses Con- 
 solidation Act, and on that ground the decision in favour of the 
 agreement was affirmed in the Exchequer Chamber (9 Ex. G42), 
 nothing being said on the general doctrine. In the Court below, 
 Parke, B., afterwards Lord "Wensleydale, expressed his opinion 
 that as a corporation the defendants had power to do all things 
 connected with the management of the concern unless prohibited 
 by the Act of Parliament (9 Ex. 67) and that the contract was 
 prima facie binding, and must be enforced if it could not be made 
 out that it was forbidden by the Act (9 Ex. 88, 22 L. J. Ex. 315). 
 The classical passage of his judgment, as it may now fairly be 
 called, is as follows : 
 
 " Generally speaking, all corporations are bound by a covenant 
 under their corj)orate seal properly affixed, which is a legal mode of 
 expressing the will of the entire body, and are bound as much as an 
 individual is by his deed. Contracts with partnerships stand upon 
 a different footing. They relate to the power of one member of a 
 partnership to bind another, and constitute a branch of the law of 
 principal and agent. In partnerships, where all the members do 
 not concur in a contract (as often they do not) one partner may 
 bind the other in all contracts within the scope of their ordinary 
 partnershij) dealings. In those beyond, the individual partners 
 making the contract are bound, not the other partners. But cor- 
 porations, which are creations of law, are, when the seal is i:)roperly 
 affixed, bound just as individuals are by their own contracts, and 
 as much as all the members of a j^artnershij) would be by a contract 
 in which all concurred. But where a corporation is created by an 
 Act of Parliament for particular purposes with special powers, then 
 indeed another question arises. Their deed, though imder their 
 corporate seal, and that regularly affixed, does not bind them if it 
 appears by the express provisions of the statute creating the corpo- 
 ration, or by necessary or reasonable inference from its enactments, 
 that this deed was nUra vires — that is, that the legislature meant 
 that such a deed should not be made." 
 
 JTi.s view This is adopted .by BlackbiU'n, J. in his judgment in Taylor y. 
 adopted in Chirjtesier & Midhurst /lailwaij Co., L. Pv. 2 Ex. 35(5, 383. In the 
 ciuent" Exchequer Chamber Blackburn and Willes, JJ. were a dissenting 
 
 cases. minority: the decision of the majority was reversed in the House 
 
 of Lords, L. R. 4 11. L. G28, but on the ground that the agreement 
 then in question was clearly -witliin llin tompany's ordinary and
 
 LIMITS OF COliroRACK POWERS. 609 
 
 l")ropcr business, so that no sliareliolJei* could have objected to the 
 directoi's entering into it, and tlius the more general question was 
 loft at large. The judgments of the dissenting judges below re- 
 main entitled to considerable weight : and, at all events, in the 
 words of Blackburn, J., "Lord AVensleydale's mode of stating the 
 proposition has been adopted as expressing the true doctrine, by the 
 Court of Queen's Bench in Chamhers v. Manchester cfc MiJford Rail- 
 waij Co., 5 B. & S. 588; 33 L. J. Q. B. 268; by the Court of 
 Common Pleas in South Wales Railway Co. v. Redmond, 10 C. B. 
 N. S. 675 [see per Erie, C. J. at p. 682] ; by the Court of Ex- 
 chequer in Bateman v. Mayor, etc. of Ashton-under-Lyne, 3 H. & 
 N. 323 ; 27 L. J. Ex. 458 [where, however, one member of the 
 court could not get over the East Anglian Eailways case, though 
 personally not approving it] ; by Lord Cranworth, C. in deliver- 
 ing the judgment in the House of Lords in Shrewshury & Birminy- 
 ham Railway Co. v. N. W. Railivay Co., 611. L. C. 113." 
 
 Lord Cranworth' s remarks must be specially cited. 
 
 "Prima facie corporate bodies are bound by all contracts under State- 
 their common seal. When the Legislature constitutes a cor2:)oration rnunts ot 
 it gives to that body prima facie an absolute right of contracting. ^^ ^^'^^g 
 But this prima facie right does not exist in any case where the efPect in 
 contract is one which, from the nature and object of the incor- iiouse oi 
 poratiou, the corporate body is expressly or imiiliedly prohibited 
 from making : such a contract is said to be idtra vires («). And the 
 question hero, as in similar cases, is whether there is anything on 
 the face of the act of incorporation which expressly or impliedly 
 forbids the making of the contract sought to be enforced " (6 II. L 
 C. at p. 135). 
 
 The actual ground of decision was that in this case, whether the 
 contract was valid or not, the time had not arrived at which it was 
 to take effect. 
 
 Moreover Lord Wensleydale was enabled to repeat his opinion 
 even more distinctly in the House of Lords : Scottish N. E. Railway 
 Co. V. Stewart, 3 Macq. 382, 415 (and see per Willes, J., L. E. 2 
 Ex. 390-1). 
 
 " There can be no doubt that a corporation is fully capable of 
 binding itself by any contract under its common seal in England 
 and without it in Scotland, except when the statutes by which it is 
 created or regulated expressly or by necessary implication prohibit 
 
 [n) This teim, if restricted to the has become so ambiguous by less 
 definition here given of it, is harm- accm-ate usage that wc linvo pvc- 
 less and possibly convenient : but it f erred to avoid it. 
 
 i: I' 2
 
 660 APPENDIX. 
 
 sucli contract between tlie parties. Priina facie all its contracts are 
 valid, and it lies on those wlio impeach any contract to make out 
 tliat it is avoided." 
 
 Lord St. Leonards took the same view in E. C. Ry. Co. v. 
 Eawlxes in the Court of Chancery (see 1 D. M. G. 737, 752, 759-60), 
 and still more clearly in the House of Lords (5 H. L. C. 331). 
 
 ' ' The aj)pellants as a corporation have all the powers incident to 
 a corporation excej^t so far as they are restrained by their act of in- 
 corporation. Directors cannot act in opjDOsition to the purpose for 
 which their company was incorporated [7], but short of that they 
 may bind the body just as [the proper officers, &c. of] corporations 
 in general may do" (p. 373). Again, " the safety of men in their 
 daily contracts requires that this doctrine of vMra vires should be 
 confined within narrow bounds " (p. 371). He further stated the 
 effect of this and other shortly preceding decisions of the House of 
 Lords (which however do not much illustrate our j^articular sub- 
 ject), as being to " i^lace the powers and liabilities of directors and 
 theii' companies in making contracts and in dealing with third 
 parties upon a safe and rational footing. They do not authori^;e 
 directors to bind their comijanies by contracts foreign to the pur- 
 poses for which they were established, but they do hold companies 
 bound by contracts duly entered into by their directors for purjooses 
 which they have treated as within the objects of theii- Acts, and 
 which cannot clearly be shown not to fall within them" (p. 381, 
 and see L. E. 9 Ex. 389). This case is the more important inas- 
 much as it was one of specific p)erformance of a contract to purchase 
 land and pay a sum of money as compensation and damages, and 
 the contract was enforced, notwithstanding that in the result the 
 land was not wanted by the company. 
 Opinion of 'Yh.Q doctrine was also discussed by Erie, J. in Mayor of Norioich 
 Erie, J. _^ Norfolk Ry. Co., 4 E. & B. 397, 24 L. J. Q. B. 105 (a case where 
 there was an extraordinary division of opinion in the Court on the 
 questions actually before them, and especially whether the par- 
 ticular contract was or was not unlawful in itself: see p. 235 above), 
 lie thought the true view to be that corporations were prohibited 
 by implication only from using their parliamentary powers in order 
 to defeat the purposes of incorporation, and criticized the judgment 
 in the East AnyJian case as too wide (4 E. & B. 415, 24 L. J. Q. B. 
 112) : and he carefully pointed out the danger of overlooking the 
 differences between a dissenting sliareholdcr's suit in equity and an 
 action by a stranger against tlio cori^orato body (4 E. & B. 419, 24 
 L, J. Q. B. 113). The same learned judge further said in Bostock 
 v. N. Staffordshire Ry. Co., 4 E. & B. 798, 819, 24 L. J. Q. B. 
 225, 231 (this however was not a case of contract), citing the Snttoii'a
 
 cases in 
 equity. 
 
 LIMITS OF COKPOHATE TOWERS, 661 
 
 Hospital case, " By common law the creation of a corporation con- 
 ferred on it all tho rights and liabilities in resi^ect of property, 
 contracts, and litigation, which existence confers on a natural 
 subject, modified only by the formalities required for expressing 
 tho will of a numerous body. . . Those of its rights and liabili- 
 ties which are unaffected by statute exist as at common law." 
 
 Turning to the later cases in courts of equity, we find marked Later 
 signs of an abandonment of their earlier view, and adhesion to the 
 doctrine of general capacity. In considering the power of building 
 societies (which were statutory quasi-corporations ; see now the Act 
 of 1874, 37 & 38 Vict. c. 42), to borrow money, the question has 
 been treated on all hands as being not whether the borrowing of 
 monej^ was expressly or necessarily permitted by the statute, but 
 whether it was forbidden or clearly repugnant to the constitution 
 and objects of the society : Laing v. Reed, o Ch. 4 ; Ex parte 
 Williamson, ib. 309 (notwithstanding the wording of the head-note 
 in the latter case, see p. 312). 
 
 And in Ex parte Birmingham Banking Co., 6 Ch. 83, the Court of 
 Appeal hold without hesitation that an incorporated company can 
 prima facAe mortgage any jiart of its projierty, and this as well for 
 an existing debt as for a new loan. The articles of association 
 authorized borrowing on mortgage, but the Lords Justices did not 
 stop to discuss whether this would or would not include a mortgage 
 to secure pre-existing debts (a), resting this part of their decision 
 on the general jiower of a body corporate to ' ' hold i:)roperty and 
 disjjose of it as fi'eely as an individual, unless it is specially pro- 
 hibited from so doing " (James, L. J, at p, 87). One may also refer 
 to the view taken by Turner, L, J. that the affirmative jn'ovisions 
 of the Companies Clauses Act do not exclude other modes of con- 
 tracting: Wilson V. West Hartlepool By. Co., 2 D. J. S. 475, 496. 
 In Bath's ca., 8 Ch. D. 334, the C, A. was unanimously of ojiinion 
 that a corporation or quasi- cori:)orate association has as an incident 
 to its existence the same power of comjn'omising claims against it 
 that a natiu'al person has. 
 
 Lastly, we have the doctrine of general capacity deliberately Eiche v. 
 adopted by the whole Court of Exchequer Chamber in Biche v. -^^^^p^^X' 
 Ashlury By. Carriage Co., L. E. 9 Ex. 254, sqq. The division of -£^^ (j^^ 
 the Court was confined to the questions (i) whether a company 
 formed under the Companies Act, 1862, is fori idden to imdertake 
 business substantially beyond its objects as defined in the memo- 
 
 ['() As to which sec Inns of Court Hotel Co., C Eq. 82.
 
 6G-2 
 
 APPENDIX, 
 
 landum of association and (ii) wlietlier, apart from tliis, an assent 
 of all the shareholders could in this case be inferred in fact. The 
 decision of the House of Lords (L. E, 7 H. L. 6o3) disposes of these 
 questions without touching the general doctrine. 
 
 For later unsuccessful attempts to extend the so-called doctrine 
 of ultra vires, see A.-G. v. G. E. By. Co., 5 App. Ca. 473; L. & 
 N. W. Rij. Co. v. Price, 11 Q. B. D. 485. 
 
 A corporation, if it lawfully carries on its business in a foreign 
 country , is treated by the Courts of that country " as a creature of 
 the law of its own country, and svibject to all the legislative control 
 and direction that may be properly exercised over it at the place of 
 its creation :" and persons dealing with it are bound by whatever is 
 duly done under the laws of that place in respect of its powers and 
 obligations : Canada Southern Rij. Co. v. Gehhard, 109 U. S. (2 Davis) 
 at p. 537. 
 
 Applica- 
 tion of 
 partner- 
 ship law : 
 Sunpsou V. 
 Deiiisou. 
 
 Statoraeiit 
 of the 
 ])rinci7)le 
 111 ricker- 
 iiiK V. 
 Htephcn- 
 Bon. 
 
 Ajyplicaiion of doctrines of part'nerslii].) and agency. 
 
 A case in which this view appears most clearly, and indeed exclu- 
 sively, is Simpson v. Denison, 10 Ha. 51. The suit was instituted by 
 dissentient shareholders to restrain the carr jing out of an agreement 
 between their company (the Great Northern) and another railway 
 company, by which the Great Northern was to take over the whole 
 of that company's traffic, and also to restrain the application of the 
 funds of the Great Northern Comj)any for obtaining an Act of Par- 
 liament to ratify such agreement. The Y.-C. Turner treated it as 
 a pure question of partnership : " How would this case have stood" 
 he says in the first paragraph of the judgment "if it had been the 
 case of an ordinary limited partnership ?" The Railways Clauses 
 Consolidation Act became in this view a statutory form of i^artner- 
 shij) 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 contract." For the piu"- 
 pose of the case before the Court this analogy was perfectly legiti- 
 mate ; and the dissent expressed by Parke, B. (in South Yorkshire, 
 &c. Co. V. G. N. E. Co., 9 Ex. 88, 22 L. J. Ex. 315), must be con- 
 sidered only as a warning against an luiqiialified extension of it to 
 questions between the corporate body and strangers. The rule 
 comes out, if possible, even more clearly in Pickcriny v. Stephenson, 
 14 Eq. 322, 340, where it is thus set forth by Wickens, V.-O. 
 " The principle of jurisprudence which I am asked here to apply is 
 that the govorning body of a corporation that is in fact a trading 
 partnership cannot iu general use the funds of the commiuiily for
 
 LIMITS OF CORPORATE TGWERS. 663 
 
 any purpose other than those for which they were contribute!. 
 By the governing body I do not of course mean exclusively cither 
 directors or a general council (a), 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 directors oi' to a majority by the statutes or 
 other constituent documents of the association, however absolute 
 in terms, are always to be construed as subject to a paramount and 
 inherent restriction that thej' are to be exercised in subjection to 
 the special purposes of the original bond of association." 
 
 It is to be observed that this passage contains no indication of 
 opinion on the extent to which a corporation may be bound by the 
 unanimous assent of its members. 
 
 Any dissenting shareholder may call for the assistance of the Rights of 
 Court to restrain unconstitutional acts of the governing body, but he tussentmg 
 must do so in his proper cajjacity and interest as a shareholder and holders, 
 partner. If the Court can see that in fact he represents some other 
 interest, and has no real interest of his own in the action, it will not 
 listen to him ; as when the j^roceedings are taken by the direction of 
 a rival company in whose hands the nominal plaintiff is a mere 
 pupi^et, and which indemnifies him against costs: Forrest v. Man- 
 chester, &c. By. Co., 4 D. F. J. 126 : so where the suit was in fact 
 instituted by the plaintiff's solicitor on grounds of personal hos- 
 tility, Rolson V. Dodds, 8 Eq. 301. But if he has any real interest 
 and is in'oceeding at his own risk, he is not disqualified from suing 
 bj' 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 piu'pose of instituting the suit : Caiman 
 V. E. C. By. Co., supra; Seaton v. Orant, 2 Ch. 459; Bloxam v. 
 Metrop. By. Co., 3 Ch. 337. Por full collection of cases, see Lind- Parties to 
 ley, 2. 1001. 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 
 cannot be ratified at all, or can be ratified only by the unanimous 
 assent of the shareholders: Huole v. G. IV. By. Co., 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 maybe affirmed or disaffirmed by, "the ulti- 
 mate authority within the society itself " (in the words of Wickens, 
 
 (a) Referring to the peculiar constitution of the company then in 
 question.
 
 664: 
 
 APPENDIX. 
 
 V.-C, just now cited), and therefore the corporation itself i^ prima 
 fade the proper plaintiff. See Lindlej^ 2. 895 sqq. Oray v. Lewis, 
 8 Ch. 1035, 1051 ; MacDoiujall v. Gardiner, 10 Ch. G06, 1 Ch. D. 
 13, 21; Russell v. Wakefield Waterworks Co., 20 Eq. 474. "The 
 majority are the only persons who can complain that a thing which 
 they are entitled to do has been done irregularly " (a). The excep- 
 tion is when a majority have got the government of the corporation 
 into their own hands, and are using the corporate name and powers 
 to make a i:)rofit 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. 
 Hooper's Telegraph Works, 9 Ch. 350; Mason \. Harris (C. A.), 11 
 Ch. D. 97. We mention these cases only to distinguish them from 
 those with which we are now concerned. 
 
 liimitcd 
 agency of 
 directors, 
 &c. 
 
 With regard to the doctrine of limited agency, and to its peculiar 
 importance in the case of companies constituted by public documents, 
 all persons dealing with them being considered to know the contents 
 of those documents and the limits set to the agent's authority by 
 them, it may be useful to give Lord Hatherley's concise statement 
 of the law (when V.-O.) in Fountaine v. Carmarthen By. Co., 5 Eq. 
 316, 322. 
 
 " In the case 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 be done which can only be 
 done by the directors under certain limited jjowers, the person who 
 deals with the directors must see that those limited j)owers are not 
 being exceeded. If, on the other hand, as in the case of Royal 
 British Bank v. Turquand {b), the directors have power and autho- 
 rity to bind the companj', 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 j)reliminaries have been observed. 
 He is entitled to presume that the directors are acting lawfully in 
 what thoy do. That is the result of Lord Cami^bell's judgment in 
 Royal Jlritish Bank v. Turquand." For fuller exposition see Lind- 
 ley, 1. 253, 334. 
 
 («) Mellish, L. J., 1 Ch. D. at 
 
 p. 2o. Ah to a .sliarclioldcr's ri'^'lit 1o 
 usctlie company 's name ux pla inl i II', 
 see render v. Liinhinylun, G Cli. i). 
 70; JJiir/,r(/v.O'otcr,ib.,82; Silbtr 
 
 Lhjhl Co. V. Sill.cr, 12 Ch. D. 717 ; 
 JIdihrn V. I'hillips, 2.", Ch. D. 14, 
 
 29, ;;8. 
 
 (//) 5 E. & B. 218, G ihhl. 327, 
 21 L. J. Q. B. 327, 2.') Uml. 327.
 
 LIMIJS OF COKroitArK I'ONVKllS. 6(35 
 
 The contrast of tho two classes of cases is well shown in Royal Royal 
 British Banh v. Turquund {supra) and Balfour v. Ernest, o C. B. I^ritish 
 N. S. 601, 28 L. J. C. P. 170. In the former case there was power Turauand 
 for the directors to borrow money if authorized by resolution : and &c. 
 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 Exchequer Chamber (the rest 
 of the Court concurring) : — 
 
 "We may now take for granted that the dealings with these 
 companies 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 jiermission to do so on certain 
 conditions." 
 
 The same princijile has been followed in many later cases {Ex 
 parte Eagle Insurance Co., 4 Z. & J. 549, 27 L. J. Ch. 829; Camp- 
 belVs ca. <&c. 9 Ch. 1, 24 ; Totterdell v. Fareham Brick Co., L. E. 1 
 C. P. 674 ; Be County Life Assce. Co., 5 Ch. 288, a very strong case, 
 for the persons who issued the policy were assuming to carry on 
 business as directors of the company without any authority at all ; 
 Romford Canal Co., 24 Ch. D. 85), and it was decisively aflfirmedby 
 the House of Lords in Mahony v. East Holy ford Mining Co., L. R. 
 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 properly api)ointed ; and these payments were held to be good 
 as against the liquidator, the dealings having been on the face of 
 them regular, and with de facto officers of the company. Share- 
 holders who allow persons to assume ofiice and conduct the com- 
 pany'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 tho shareholders to see that unautho- 
 rized persons do not usurp office, and that the business is properly 
 done (a). 
 
 In Balfour v. Ernest tho action was on a bill given by directors 
 of an insurance companj- for a claim under a pohcy of another 
 company, the two companies having arranged an amalgamation ; 
 this attempted amalgamation, however, had been judicially deter- 
 mined to be void : Ernest \. Nicholls, 6 H. L. C. 401, revg. S. C. 
 nom. Port of London Co.'s case, 5 D. M. Gr. 465. The dii-ectors 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 
 
 ((/) Ojniiiou of jiulgcs, at p. 880 ; per Lord H:ithcrley, at pp. 897-S.
 
 666 APPENDIX. 
 
 by the comjjany, and tliey liad a power to make and accept bills, 
 &c. wbicli 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 deed, they could bind the company by bills of 
 exchange only for its ordinary purj^oses, 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 thej^ therefore could not re- 
 cover. "This bill is drawn by procuration," said Willes, J., 
 " and unless there was authority to draw it the company are not 
 liable (a) . . . 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 deed (which must be taken to have been 
 known to the plaintiffs) to confer upon the directors authority to 
 make it." 
 
 The connexion with ordinary partnershiji law is brought out in 
 the introductory part of Lord Wensleydale's remarks in Ernest v. 
 NichoUs (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 com2:)lete partuershij) 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 
 tliird 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 in- 
 applicable to joint- stock companies], the legislature then devised 
 the plan of incorporating these companies in a manner unknown to 
 the common law, with si)ecial jjowers of management and liabilities, 
 providing at the same time that all the world should have notice 
 who were the persons autliorized to bind all the shareholders by 
 requiring the co-partnership 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 Royal 
 Jlridsli Banlc v. TurquamJ, and the C'ourts have distinctly declined 
 to adoi)t it {Afjar v. AtlteiHuum Life Assce. Svc, 3 C 13. N. S. 725, 
 27 L. J. C. r. 03; Prvncc of Wales Assce. Co. v. Ilnrduuj, E. B. & 
 
 {(t) 111 form it was a liill drawn cashier, and scaled with the com- 
 by two directors ou the company's pany's seal.
 
 LIMITS OF CORPORA IK rOWERS. 667 
 
 E. 183, 27 L. J. (I B. 297). Tlio lust case of tliis class is CJuqjko 
 V. Brunsiviclc. BuUdiinj Sucii'fi/, G il. 15. D. G'JG. 
 
 We now pass on to the cases whicli show how far transactions in Eatifica- 
 
 the conduct of a company's affairs which in their inception were *'°^ *^^_ 
 
 irrG*^iil3<r 
 invalid as against any dissenting shareholder may nevertheless bo trausac- 
 
 made binding on the partnership and decisive of its collective rights tions by 
 
 (at all events as between the company and its own past or present ''-^l^^'^t of 
 
 members) by the subsequent assent of all the shareholders, though ghare- 
 
 such assent be informal and .shown only by acquiescence. The holders. 
 
 leading examples on this head are given by the well-known cases ''Packman 
 
 in the House of Lords which arose in the winding-up of the Agri- &'c_ con-' 
 
 crdturists' Cattle Insurance Comjoany. sidered. 
 
 They have been relied on as authorities for the proposition that 
 the unanimous assent of shareholders may bind a comj^anj' in its 
 corporate cajiacity to anything : but since the decision of the House 
 of Lords in Ashhury lly. Curriuye & Iron Co. v. Ridie, L. E. 7 H. L. 
 053, this view is untenable. " In no one of those cases," observed 
 Lord Cairns, " was there any question as to whether the power of 
 the whole company had been exceeded " (L. E. 7 H. L. 674). The 
 whole matter was one of the internal constitution and affairs of the 
 company, and there was no occasion to consider to what extent or 
 in what transactions the assent of shareholders was capable of 
 binding the company as against .strangers. Moreover, the irregular 
 act which was ratified was unauthorized as to the manner and form 
 of it, but belonged to an authorized class, as pointed out bj' Lord 
 Eomilly (L. E. 3 H. L. 244-5) («). The general nature of the facts 
 was thus : At a meeting of the company an arrangement was 
 agreed to, afterwards called the Chijipenham arrangement, by 
 which shareholders who elected to do so mthin a certain time 
 might retire from the comjiany on specified terms by a nominal 
 forfeiture of their shares. The deed of settlement contained pro- 
 visions for forfeiture of shares, but not such as to warrant this 
 arrangement. It was held — ■ 
 
 In Evans v. SmaUcomhe, L. E. 3 II. L. 249, that the Chippenham 
 arrangement could be supported (as having become part of the 
 internal regulations of the company) onh' 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 therefore not 
 liable to bo put on the list of contributories. (Cp. Brotherhood's 
 
 (ff) See also the judgment of Arcliibald, J., iu Eklic v. Ashliurij By. 
 Carrutffe Co., L. R. 9 Ex. 289.
 
 668 APPENDIX. 
 
 ca., 4 U. F. J. o6G, au earlier and similar decision in the same 
 ■winding-u]").) 
 
 In SjxtcJanan v. Evans, ih., 171, that a later and distinct com- 
 promise made with, a smaller number of dissentient shareholders 
 had not in fact been communicated to all the shareholders as dis- 
 tinct from the ChiiDpenham arrangement, and could not be deemed 
 to have been ratified by that acquiescence which ratified the Chip- 
 penham arrangement ; and that a shareholder who had retired 
 tinder this later compromise was therefore rightly made a con- 
 tributory. 
 
 In Houldsworth v. Evans, ih., 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 SjxicJcman v. Evans [a], Cp. Steicarfs ca., 
 1 Ch. 511. 
 
 The question of the shareholders' knowledge or assent in each 
 case involved delicate and difficult inferences of fact, and on 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 be affirmed that on any pure question of law there 
 was none (6). These cases apj)ear to establish in substance the 
 following propositions : (1). For the jjurpose of binding a comjDany 
 as against its own shareholders, irregular transactions of an autho- 
 rized class may be ratified by the assent of all the individual share- 
 holders. (2). Such assent must be pi'oved as a fact. Acquiescence 
 with knowledge or full means of knowledge may amount to proof 
 of assent, and lapse of time, though not conclusive, is material. 
 The converse proposition 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 jiresent 
 scope. See CumpbelVs ca., &c., 9 Ch. 1. 
 riiosjiliiite The later case of Phosphate of Lime Co. v. Green, L. E. 7 C. P. 43, 
 of Lime ^^g of much the same kind though in a different form. Tho action 
 Gr('(^n "^'^^ ^y ^^'^ company against jiast shareholders for a debt, and the 
 
 defence rested on an accord and satisfaction which had been effected 
 liy un in'cgular forfeiture of tlu; dcfi'iidant's shares, and which in the 
 
 {ri) Sec also LiiHllcy, 1. 710, 713, {/>) See per Willcs, J., L. E. 7 
 
 and L. R. 7 C. V. .Ol-'i, and note C. P. 60. 
 the remark oi Willes, J., p. ^I'i.
 
 LIMITS OF CORPORVTK POWERS. G69 
 
 result was uphold on the ground of tlie shareholder's ac(|uiescence. 
 There is nothing to throw any light on the question whether in tho 
 case of a trading company formed under the Comiianies Act, 18G2, 
 there is any class of acts which not even the unanimous assent of 
 shareholders can ratify : it was not necessary to consider the exist- 
 ence of such a distinction, nor was it brought to the attention of the 
 Court. Note that the difficulty as to inferences of fact was much 
 less than in the cases before the House of Lords, as the Court had 
 to say, not whether there had been acquiescence, but whether there 
 was evidence from which a jury might reasonably have found 
 acquiescence (see i:)p. 61, 02) («). 
 
 Doctrine of puUic j^olioj. 
 
 In E. C. III/. Co. v. Ilawl'es, 5 H. L. C. 331, LordCranworth, who Public 
 as we have seen was a decided upholder of the prima facie unlimited Pob^-.v- 
 capacity of cori^orations, after citing CoZman. v. E. G. Ry. Co., |, iiaVkes 
 Salomons^, Lcdmj, Bagshaw v. E. Union Ry. Co. (see above, pp. 655, 
 656), expressed himself as follows : — " It must be now considered 
 as a well settled doctrine that a company incorj^orated by Act of 
 Parliament for a special purpose cannot devote any part of its 
 funds to objects unauthorized bj^ the terms of its iucori)oration, 
 however desirable such an application may apjiear to be." In this 
 case the disputed contract was held good, and the distinction was 
 pointed out between an act which is forbidden or illegal in itself, 
 e. (J., obstructing a navigable river by building a bridge across it, 
 as in Mayor of Noriuich x. Norfolk Ry. Co., 4 E. & B. 397, and an 
 act which is merely unauthorized as between directors and share- 
 holders. A prettj' f ull account of this case is given in the judg- Taylor r. 
 ment of Blackburn, J. in Taylor v. Chichester & Midhurst Ry. Co., p^^*l^®^" 
 L. E. 2 Ex. 356, 380— 9 ; and the effect of the doctrine of pubHc *^''' ^' ^' 
 policy in imposing restrictions on corporate action which are 
 beyond and independent of the rights of individual shareholders, 
 and which therefore their assent is powerless to remove, is oxjilained 
 in a subsequent passage of the same judgment, which points out 
 that in incori^orating a company the legislature has two distinct 
 jjurposes, the convenience of the shareholders and the benefit of 
 the public. Every shareholder has rights against the corporation 
 analogous to those of partners between themselves, and may object 
 to unauthorized acts being done. These individual rights however 
 may be waived. But if the legislature actually forbids the com- 
 pany to enter upon certain transactions, then no assent will make 
 
 {a) See further on the subject of ratification bv coiiiDanios, Lindley 1, 
 258-263. ■ "
 
 G7') APPKXDIX. 
 
 such transactions binding. Whetlier sucli a proliiljition exists 
 depends in each, case on the construction of the statute (pp. 378-9). 
 
 Ashhiiry How far the Coiirt should be guided in the construction of such 
 
 Ey. Car- statutes by the consideration of the general j^olicy of such legislation 
 r Riche.' ^^ ^ question on which there has been much difference of opinion. 
 Policy of We have already referred shortly to Ashhury By. Carriage Co. v. 
 Companies Ji/f-Jte. In this case the distinct question arose (for the first time it 
 is believed), whether the Companies Act of 1862 does or does not 
 forbid a com2:)any formed under it to bind itself by contract to an 
 undertaking beyond the purposes specified in the memorandum of 
 association. The 12th section of the Act says that a company shall 
 not alter its memorandum of association except in certain particu- 
 lars as to caj^ital and shares («) ; the Exchequer Chamber was 
 equalh' divided as to the effect of this. Blackburn, Brett and 
 Grove, JJ. were of oj)inion that it did not amount to making com- 
 panies incapable of binding themselves to anything beyond the 
 scope of the memorandum ; Archibald, Keating and Quain, JJ. 
 held that it did. They thought it to be " the policy as well as the 
 true construction" of the Act "to ignore (so to speak) the existence 
 of the corporation and the power of the shareholders, even when 
 unanimous, to contract or act in its name for any purpose substan- 
 tially beyond or in excess of its objects as defined by the memo- 
 randum of association" (p. 291). Admitting that a cori^oration 
 has prima facie as incident at Common Law the large powers laid 
 down in the Suitoii's Hospital case, 10 Co. Eep. 30 h, and citing the 
 statement of the law by Lord Cranworth in Shreioslnry and Bir- 
 mingham By. Co. v. N. W. By. Co. (given above, p. 659), the 
 judgment of Archibald, J. (L. E. Ex. pp. 292-3), proceeds to say 
 that "the presumption of a prima facie general authority to con- 
 tract" is rebutted by the "express provision that the scope and 
 objects of the comjiany as originally declared by its memorandum 
 of association shall be unchangeable." The corporation may be 
 regarded as non-existent for the purj^ose of contracts beyond these 
 objects ; and if so, the individual assents of all the shareholders 
 cannot give the ideal legal body of the corporation a capacity of 
 which the legislature has deprived it, so as to render an agreement 
 substantially beyond the defined objects " a contract of the ideal 
 legal body, which exists only as a corporation and with powers and 
 capacity which are thiis admittedly oxcocdcd." 
 
 This opinion was confirmed by the unanimous decision of tho 
 
 («) Extended by the Act of 18G7, ss. 9, sqq., 21, but only to other 
 matters of the like sort.
 
 APPExnix (notk k). (171 
 
 House of LoiiLs, L. E. 7 II. L. 0J3, wliicli proceeds not so iimcli ou 
 any one section as on the intention of the Act ajipearing from its 
 various provisions taken as a whole. The existence and conii^etence 
 of the company are limited by the memorandum of association, 
 which is "as it were the area beyond which the action of the com- 
 pany cannot go " (Lord Cairns, at p. G71). This being the funda- 
 mental instrument, a provision in the articles of association which 
 has the effect of applying the capital of the company to a purjjose 
 not within the scope of the memorandum is invalid [Guinness v. 
 Land Coriioration of Ireland, C. A. 22 Ch. D. 349). Precisely 
 analogous questions are not likely to arise very often, but the deci- 
 sion lays down with sufficient clearness the lines that must hence- 
 forth be followed in the treatment of the law. As to when the 
 Attorney-General is entitled to interfere, see A.-G. v. G. E, R. Co. 
 (C. A.), 11 Ch. D. 449. 
 
 Note E. (p. 106). 
 Foreign Laws Frescrihing Forms of Contract. 
 
 Tlie draft Civil Code of New York adopts the chief provisions of 
 the Statute of Frauds in terms which to some extent embodj' the 
 results of leading English decisions (ss. 794, 8G5, 1537). 
 
 The Civil Code of Lower Canada, s. 1235, adopts in substance the 
 1 7th section as extended by Lord Tenterden's Act. The foundation 
 of Lower Canadian Law is French, and the code is in a general 
 way modelled on the Code Napoleon ; but this is not the only jilace 
 in which English law has had a marked influence on it. 
 
 The French Code (Art. 1341-8) requires an instrument in writing 
 when the subj ect matter of the contract exceeds the sum or value of 
 loOfr. This is understood (like the 17th section of our statute as 
 distinguished from the 4th) to be a rule of the lex contractus, not of 
 the lex fori : see the note in Sirey & Gilbert's Codes Ajinotes. Also 
 compromises must be in writing (Art. 2044). 
 
 The Italian Code adds to and modifies this. The general limit of 
 value is fixed at 500 instead of 150 lire (Art. 1341). Moreover 
 several particular kinds of contracts have to bo in writing, of which
 
 672 APPENDIX. 
 
 tlae chief are sales of immoveable proiDorty, certain contracts as to 
 servitudes and other real rights, leases for more than nine years, 
 grants of annuities, and compromises (Art. 1314). Both in French 
 and in Italian law the instrument in writing {ade sous seinrj 2'>rive, 
 scrittura privata) is of no avail unless signed, and that, it seems, 
 by all parties : moreover there must be actual written signature, 
 not a mark. (Codes Annotes on Art. 1322 sqq. ; Mazzoni, Diritto 
 Civ. Ital. Bk. 3, Pt. 2, § 171.) The only resource of illiterate 
 persons is apparently to call in a notary so as to give the instru- 
 ment a yet higher degree of solemnity as an "authentic act." And 
 unilateral contracts are subject to certain additional forms. 
 
 The Prussian Landrecht (Part 1. Tit. 5, § 131) requires a writing 
 ■where the value of the subject-matter exceeds fifty thalers. 
 
 From the operation of all these laws, however, commercial con- 
 tracts are excepted : in France by the construction put in practice 
 xipon general words saving the commercial law («). which are held 
 without more to show that the substantive part of the enactment 
 does not apply to anything governed by the Commercial Codes 
 (Codes Annotes, §3 of note, and Cattaneo & Borda, on Art. 1341 of 
 Fr. and Ital. Codes respectively) : in Italy by an express exception 
 in the new Commercial Code (Art. 44) ; and in Prussia, by the ex- 
 press terms of the German Commercial Code, which it is presumed 
 override the laws of all particular German states {h). The last- 
 named Code requires a solemn instrument for the formation of 
 companies (174, 208), and a contract in writing to enable a pledgee 
 to exercise a summary power of sale (310, 311) (c). 
 
 (a) Le tout sans prejudice de ce sung oder andere Formlichkeiten 
 
 qui est presciit dans les lois relatives nicht bedingt. 
 au commerce. Code Civ. 1341. (c) With leave of the Court ob- 
 
 {b) Art. 317. Bei Handels- taiued ex parte, or witliout it, if 
 
 geschaften ist die Giiltigkeit der there is an express contract to that 
 
 Vertriige durch schrifthche Abfas- effect.
 
 Al'l'KNDIX (NOJK V). 673 
 
 Note F. 
 
 Ilisiory of Consideration. 
 
 "We may first note the difference between our Consideration and its ^ «"^'' "i 
 nearest Continental analogies ; a ditference not always realized, and French 
 instructive enougli to be worth dwelling upon a little. We read in law. 
 the French Code Civil, following Pothier : " L'obligation sans 
 cause, ou sur une fausse cause, ou sur une cause illicite, ne pent 
 avoir aucun effet " (a). Looking at this text alone, nothing would 
 at first sight seem more natural to an English lawyer than simjoly 
 to translate cause by consideration. But let him turn to a French 
 commentary on the Code, and he finds no distinct and comprehen- 
 sive definition of cause as a legal term of art, but a scholastic dis- 
 cussion of efficient, final, and impulsive causes (&). Going on to see 
 what is in fact included in the cause of the French law, we find it 
 wider than our Consideration in one way and narrower in another. 
 On the one hand the existence of a natural [/. e. moral] obligation, 
 or even of a real or supposed duty in point of honour only (c), may 
 be quite enough. Nay, the deliberate intention of conferring a 
 gratuitous benefit, where siich intention exists, is a sufficient 
 foundation for a binding unilateral promise: "Dans les contrats 
 de hien/aisance, la liberalite que I'une des parties veut oxercer 
 envers I'autre est une cause suffisante de 1' engagement qu'elle con- 
 tracte envers elle." (Pothier, I.e.) {d). The meaning of sans cause 
 seems accordingly to be confined to cases of what we should call total 
 failure (as distinguished from mere absence) of consideration (e). 
 On the other hand there is this limitation, that the promisee must 
 have an interest in the subject-matter of the promise which is 
 apparent and capable of estimation (Pothier §§ 54, 55, GO). This 
 doctrine seems to have arisen from a doubtful extension, if not a 
 misunderstanding, of the technical rules which governed the Eoman 
 Stipulation. Of course a contract between A. and B. cannot as :i 
 rule give a right of action to C, but the maxim Alteri siipularl 
 nemo 2')otest{f) is relied on by French jurisprudence as equivalent 
 
 (a) Code Civ. 1131, Pothier Obi. dell's Sel. Ca. on Cent. 169. 
 
 ^ 42. (t) Demolombe, op. cit. p. 342. 
 
 {b) Demolombe, Cours du Code (/) D. 45. 1 de v. o. 38, § 17 : 
 
 Nap. 24. 329. I. 3. 19, § 4. The mle coiild always 
 
 ((■) " Desir de satisfaire aux lois be escaped by inserting a liquidated 
 
 de I'honneiu- et de la delicatesse." penal snm payable to the stipulator: 
 
 Sircy and Gilbert, Codes Annotes, a Stipulation thus framed, Will you 
 
 ad loc. ; Demolombe, op. cit. pay sonmchto J. S. on svichaday l" 
 
 p. 335. -would be naught, but if it ran, Will 
 
 (rf) The same in the modern law, you pay so much to me if you do 
 
 see extract from Eogrou in Lang- not pay.T. R. ? it was goodenoiigli. 
 
 V. X X
 
 674 APPENDIX. 
 
 to the wider general proposition that a promise by A. to B. to do 
 something for C.'s benefit gives no right of action to any one. 
 Pothier puts this case : The owner of a wall opposite my friend's 
 window promises at my request to whitewash it so as to give my 
 friend more light : I cannot sue him for not doing it, though I had 
 in'omised to pay him for it and should have been liable to pay for 
 the work if done. In English j)hrase the rule would seem to come 
 to this : — there can be no contract where the nature of the agree- 
 ment is such that the promisee could recover only nominal damages 
 for a breach of it. But it seems the doctrine is not much favoured, 
 and slight circumstances are laid hold of to exclude its application, 
 e. g. a contingent legal liability of the promisee in respect of the 
 subject-matter. The Code (Art. 1119) expresses no more in terms 
 than the Latin maxim, but is of course construed in the same 
 way (a). In the Civil Code of Lower Canada, however, wo find the 
 English consideration introduced, jn'ofessedly as a synonym of 
 cause (s9. 984, 989) : it would seem therefore that the English 
 jurisi^rudenco on this point has been there introduced by English 
 lawyers, and has in effect supplanted the Erench by its greater 
 convenience and simplicitj'. Eor the intermediate mcdireval usage 
 see Codex LL. Normannicarum (about a.d. 1250), ap. Ludewig, 
 Eeliq. MSS. vii. 313. (De imctis). . . ex j)romisso enim nemo 
 debitor constituitur, nisi causa legitima precesserit jjromittendi 
 . . . ncc eciam promissio aliquem facit debitorem nisi causa 
 jn'omittcndi fuerit premonstrata. 
 
 Thus the Eoman theory whether in its classical or in its modern 
 
 shape falls short of the completeness and common sense of our own; 
 
 but only one step seems wanting (5). If the Eoman lawyers or the 
 
 civilians in modern times had ever fairly asked themselves what 
 
 were the common elements in the various sets of facts which under 
 
 the name of causa made various kinds of contracts actionable, they 
 
 could scarcely have failed to extract something equivalent to our 
 
 Consideration. The fact that they did not take that step is much 
 
 more difficult to account for than the fact, if a fact it be, that 
 
 we did. 
 
 History The actual history of the English doctrine is obscure. The most 
 
 %, V 1 wo can affirm is that tlic general idea was formed somewhere in the 
 
 concep- latter part of the fiftecntli century ; that at the same time or a little 
 
 tion. 
 
 It is not quite clear from Bractou's moloniLc, op. cit. p. 198. 
 
 language (fo. 100 a-h) -wliothcr lie [h) Uljnau ouce comes near to 
 
 meant to contradict the rule of the taking it: D. 19. Tj. de pracscr. 
 
 civil law. verbis, 15; Hunter's Roman Law, 
 
 (rt) Codes Annott'H, ad loc ; IH- '\''A.
 
 CONSIDERATION. 675 
 
 later nudum pactum lost its ancient meaning, (t'/z. an agreement 
 not made by specialty so as to support an action of covenant, or 
 falling udthin one of certain classes so as to support an action of 
 debt) and came to mean what it does now ; and that the ivord Con- 
 sideration in the sense now before us came into use, at least as a 
 settled term of art, still later. It is hardly needful to mention that 
 in the early writers considerare, consideratio always mean the judg- 
 ment of a court ; this usage was preserved do'^vTi to our own time 
 in the judgments of the common law courts in the form "It is 
 considered," wantonly altered to "It is adjudged " under the Judi- 
 cature Acts. 
 
 The early cases of actions of assumpsit show by negative evidence Case in 37 
 ■which is almost conclusive that in the first half of the 15th century H. 6. 
 the doctrine of Consideration was quite unfoi-med, though the 
 phrase quid j^ro quo is earlier, see 10 Ed. 3, 23. But in 1459 we find 
 a great advance in a case to which we have already referred as 
 showing that an action of debt would then lie on any consideration 
 executed. The case was this : Debt in the Common Pleas on an 
 agreement between the plaintiff and defendant that j)laintiif should 
 marry one Alice, the defendant's daughter, on which marriage 
 defendant would give plaintiif 100 marks. Avernient that the 
 niai-riage had taken jAace and the defendant refused to pay. 
 Danvers, J. said: "The defendant has Quid pro quo: for he was 
 charged with the marriage of his daughter and by the espousals he 
 is discharged, so the plaintiff has done what was to be i^aid for. So 
 if I tell a man, if he will carry twenty quarters of wheat of my 
 master Prisot's to Gr., he shall have 40s., and thereupon he carry 
 them, he shall have his action of debt against me for the 40s. ; and 
 yet the tiling is not done for me, hut only hy my command : so here he 
 shows that he has performed the espousals, and so a good cause of 
 action has accrued to him : otherwise if he had not j)erformed 
 them " (a). Moile, J. agreed : Prisot, C. J. and Danby, J. thought 
 such an action not maintainable except on a sj^ecialty, and an 
 objection was also taken to the jurisdiction on the ground of 
 marriage being a spiritual matter : the case was adjourned and the 
 result is not stated. It is pretty clear however that Danvers at any 
 rate had grasped the leading and characteristic jjoint of the modern 
 learning of Consideration —namely, that when a thing is done at a 
 man's request, the law does not ask whether it is for his aj)parent 
 benefit, but takes it as against him to be of the value he has himself 
 chosen to put upon it. The word is not here used, but the thing is 
 expressed by Quid pro quo : so it is in another ciu'ious case of the 
 
 {a) M. 37 H. G. 8, pi. 18. 
 
 X x2
 
 676 
 
 APPENDIX. 
 
 Doctor 
 and 
 
 Student. 
 
 Argu- 
 ments in 
 Sharing - 
 ton i\ 
 Strottor, 
 Mich. 7 ^: 
 8 Eliz. 
 
 same year, wliere a bond giveu for an assignment of debts was 
 decreed in Chancery to be cancelled, for the reason that no duty (a) 
 was vested in the assignee by the assignment, so that he had not 
 Quid pro quo for his bond. Whence it seems that an assignment of 
 debts "was not then recognized as creating any right which could be 
 enforced in equity {b). In an earlier case of assumpsit for not 
 building a mill as promised (c), the objection was taken that it did 
 not appear what the builder was to have for his work. But here, 
 probably, the idea is not that there must be quid pro quo to support 
 the promise, but that without reward there can be no relation of 
 hiring and service to found the duty of doing the work properly. 
 Some time later we find tlie principle expressed thus : If I promise 
 J. S. a certain sum for the commons [board] of J. D. an action of 
 debt lies for this, " car la ley intend que J. S. est un tiel per que 
 service jeo aie advantage " (rf). In the Doctor and Student (a.d. 
 1530) we find substantially tbe modern doctrine, though, this last 
 point is not particularly mentioned. The following passage shows 
 that the notion of nudum pactum was then completely transformed : — 
 ' ' And a nude or naked promise is wkere a man promiseth another 
 to give h.im certain money sucli a daj', or to build an house, or to 
 do liim such, certain service, and nothing is assigned for the money, 
 for the building, nor for the service ; these be called naked pro- 
 mises because there is nothing assigned wliy they should be made ; 
 and I think no action lietb in those cases, thougb they be not per- 
 formed." (Dial. 2, c. 24.) 
 
 Not many lines below this passage the word Consideration is 
 used, but in such a way as to make it probable that the writer did 
 not regard it as a technical term. So far as we know, the first full 
 discussion of Consideration by that name is in Plowden's report of 
 Shariiujton v. Strotton (Mich. 7 & 8 Eliz.) (e). The question in the 
 case was whether natural love and affection was a good considera- 
 tion to support a covenant to stand seised to uses. The action was 
 trespass, and the defendants justified as servants of parties entitled 
 under the covenant. The argument for the plaintiffs insists on 
 " value or recompense" as the essence of Consideration, and shows 
 a full understanding of the law in its modern sense. Among otlier 
 cases marrying the promisor's daughter at liis request is put as a 
 good consideration. The argument for the defendants is long and 
 
 (rt) Sic in the book : the word is 
 here and elsewhere used with a 
 double aspect, like ol/lii/<((io, as (/<■/// 
 Btill iH. 
 
 {/') llil. 37 ir. G. irs, pi. 3. 
 
 {(•) 3 H. 6. 36, pi. 33 (p. 143 
 above) . 
 
 (fl) 1 Rol. Ab. 593, pi. 7, citing 
 17 E. 4. 5 ; and see other cases and 
 dicta there collected. 
 
 {e) riowd, 298, 302.
 
 COXSIDERATIOX. 677 
 
 (k'sultoiy, and goes into mucli irrelevant matter about Aiistotle, 
 the utility of marriage, and the Law of Nature : and the notion is 
 brought in that the consideration for a promise must show some 
 apparent benefit to the promisor : it is said that a promise to pay 
 money in consideration of marriage, such as aboTe mentioned, 
 would be nudum pactum but for regard to Nature («). It is also 
 said that everj^ deed imports a consideration, viz., the will of him 
 that made it. But this seems a desperate argument. For it must 
 be remembered that the common law rule of a deed wanting no 
 consideration at all was inapplicable {h). Before the Statute of 
 Uses a merely gratuitous agreement or declaration of uses without 
 any transfer of legal possession was ineffectual to create a use even 
 if made by deed : and the Statute executes a legal estate only 
 where before the Statute there would have been a use enforceable 
 in equity. In the result the Court held that the covenant was 
 effectvial to transfer the use, natural love and affection being a 
 sufficient consideration to support it. It does not appear whether 
 they were prepared to go the whole length of the argument for the 
 defendants and hold natural love and affection a good consideration 
 for contracts of all sorts. 
 
 As is well shown by this case, the question of Consideration was True 
 of imjoortance in the learning of Uses before the statute (c). And °^'^^"^ 
 the reflection is obvious that both the general conception and the cioctriue 
 name of Consideration might have had their origin in the Court of perhaps in 
 Chanceiy and the law of rises, and have been thence imported into '^'^l""}'- 
 the law of contracts rather than developed by the common law 
 courts. On this hypothesis a connexion with the Eoman causa 
 may be suggested with some plausibilitj'. 
 
 Judge O. W. Holmes, jun., has j)ut forward a quite different Connexion 
 theory of the origin of Consideration, which he regards as nothing qxta p>'o 
 else than a generalization from the technical requirements of the action of 
 action of debt in its earlier form (The Common Law, chapter on debt. 
 History of Contract, pp. 253, sqq. ; Early English Equity, in Law 
 Quarterly Eeview, No. 2). One mode of proving a debt was by 
 the oath of sufficient men, as one mode of defence was by the cor- 
 responding process of compurgation, which under the name of 
 wager of law survived into the present century. These men are 
 
 (a) It is curious that the case was or authority for that rule, but 
 
 argued on principle without any re- manifestly per incKriain. 
 ference to precedents in the Court (c) Only the precautions long em- 
 
 of Chancery. It can scarcely have bodied in the practice of convey- 
 
 been of fii'st impression. ancers prevent it from being so 
 
 (/') The passage is cited in some still, 
 modern books as an illustration of
 
 678 APPENDIX. 
 
 the "good suit" of our medifeval practice: inde producit sedam is 
 the common style. How this may be connected with the modern 
 doctrine of simple contracts is best told in Mr. 0. AV. Holmes's own 
 words : — 
 
 " The rule that witnesses could only swear to facts within their 
 knowledge, coupled with the accident that these witnesses were not 
 nsed in transactions which might create a debt, excej^t for a par- 
 ticular fact, namely, the delivery of iirojjerty, together with the 
 further accident that this delivery was quid pro quo, was equivalent 
 to the rule that when a debt was proved by witnesses there must 
 be quid pro quo. But these debts j^roved hj witnesses instead of by 
 deed are what we call simple contract debts, and thus beginning 
 with debt, and subsequently extending itself to other contracts, is 
 established our peculiar and most important doctrine that every 
 simple contract must have a consideration. This was never the 
 law as to debts or contracts proved in the usual waj- by the defen- 
 dant's seal, and the fact that it applied only to obligations which 
 were formerly established by a procedure of limited use goes far to 
 show that the connection with procedure was not accidental. 
 
 " The mode of proof soon changed, but as late as the reign of 
 Queen Elizabeth we find a trace of this original connection. It is 
 said, ' But the common law requires that there should be a new 
 cause {i.e., consideration), whereof the country may have intelli- 
 gence or knowledge for the trial of it, if need be, so that it is 
 necessary for the public weal' (a). Lord Mansfield showed his 
 intuition of the historical grounds of our law when he said, ' I take 
 it that the ancient notion about the want of consideration was for 
 the sake of evidence only ; for when it is reduced into writiny, as in 
 covenants, specialties, bonds, &c., there was no objection to the 
 want of consideration' {h). 
 
 "If it should be objected that the preceding argument is neces- 
 sarily confined to debt, whereas the requirement of consideration 
 applies equally to all simple contracts, the answer is, that in all 
 probability the rule originated with debt, and spread from debt to 
 other contracts." (The Common Law, jip. 258, 2i59.) 
 
 Some of the steps in the process thus sketched out are con- 
 jectural, and it is not clear that the proof per sedam had not become 
 of little account, in the King's Court at all events, before the con- 
 structive epoch of the Common Law had faii-ly set in. (Glanv. X. 
 c. 17 ; Bracton, fo. 400 b, § 9; see Mr. Holmes's remarks on those 
 passages, pp. 257, 262 of his book.) And there may have been — I 
 
 [a) HI tar in (J Ion v. Slrotlun, Plow- (A) Pillans v. Van Microp, 3 Biu-- 
 
 dcn, 298, at p. 302, M. 7 & 8 Eliz. rows, 1663, 16G9.
 
 APPENDIX (XOTE Ci). 679 
 
 suspect tliere was — groator couiiilication ol iufluoncos than we can 
 now traco in detail. I find it hard to believe that the quid pro quo 
 develoi^ed from an accident of procedure into a substantive rule of 
 law without any reinforcement from the civilian idea of causa, 
 which must have been perfectly familiar to our thirteenth-century 
 lawyers. The fact, established beyond a doubt by Mr. Holmes, 
 that as late as the sixteenth century the doctrine of Consideration 
 was not fully applied to the action of assumpsit, is in itself not 
 decisive; as it is certain, on any view, that it was long before 
 assumpsit got clear of its early association with trespass and was 
 understood to be in substance an action of contract. On the other 
 hand the apparently indefinite range of assumjisit, when once the 
 gulf between misfeasance and mere nonfeasance was bridged, must 
 have reacted on the idea of Consideration, whencesoever it had 
 come, by making the need for its apj)lication more sharply felt. 
 
 On the whole, I do not think the materials are ripe for a positive 
 conclusion. But the elements contributed by Mr. Holmes are 
 assuredly not to be neglected ; and the lines of search opened by 
 him will jn'obably lead to further results at that desirable but still 
 quite uncertain time when the rich unpublished records of our 
 mediaeval law shall bo methodically examined and competently 
 edited. 
 
 Note G-. (p. 207). 
 EarJi/ Authorities on Assifjnments of Chases in Action. 
 
 In Mich, o Hen. IV. 8, pi. 34, is a case where a grantee of an 1. Cases 
 annuity from the king sued on it in his own name. No question ^^^^^ , 
 seems to have been raised of his right to do so. assicm- 
 
 In Hil. 37 Hen. VI. 13, pi. 3 (see p. 676 above), it appears that ment only 
 by the opinion of all the justices an assignment of debts was no ^? ™ ques- 
 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 : thus it is 
 clear that the notion of such an assignment being good in equity 
 though not at law had not then arisen. It may be noted in passing 
 that the case is otherwise interesting, as it shows pretty fully the 
 relations then existing between the Court of Chancery and the 
 Courts of Common Law. 
 
 In Hil. 21 Ed. IV. 84, pi. 38, the question was raised whether 
 an annuity for life granted without naming assigns could be granted
 
 680 
 
 APPENDIX. 
 
 over; and the dictum occurs that the riyht 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 duo to 
 him from another, the grantee shall have an action in his own 
 name : " ei issvnt ne puit mil autre /aire." 
 
 So Mich. 2 Hen. VII. 8, pi. 25. "Ze lioy poit granter sa accion 
 oil chose qui gist en accion ; et tssint ne poit mil auter person.'''' 
 
 In Eoll Abr. Action sur Case, 1. 20, pi. 12, this case is stated to 
 have been decided in B. E., 42 Eliz., between Mowse and Edney, 
 per curiam: A. is indebted to B. by bill {i.e., the now obsolete 
 form of bond called a single biU), and B. to C. B. assigns A.'s 
 bill to C. Forbearance on C.'s part for a certain time is no con- 
 sideration for a promise by A. to pay C. at the end of that time 
 (s. V. contra, ih. 29, pi. 60) : for notwithstanding the 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 apjiears to be assumed throughout 
 that the impossibility of effectually assigning a chose in action is 
 inherent by some unquestionable necessity in the legal nature of 
 things. Finally, in Termes de 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. No reason is given. 
 
 The exception in favour of the Crown may perhaps be derived 
 from the universal succession accruing to the Crown on forfeitures. 
 This would naturally include rights of action, and it is easy to 
 understand how the practice of assigning over such rights might 
 spring up without much examination of its congruity with the legal 
 principles governing transactions between subjects. 
 
 Before the expulsion of the Jews under Edward I. they were 
 treated as a kind of serfs of the Crown {tayllahles au Hoy come lea 
 aoens serfs et a nul autre: Statutes of Jewry, temp, incert., dated by 
 Prynne 3 Ed. 1), and the king accordingly claimed and exercised 
 an arbitrary power of confiscating, releasing, assigning, or licensing 
 them to assign, the debts due to them. Cp. charter of Frederick II., 
 Pet. do Vincis Ejiist. lib. 0, no. 12: " omnes et singuli Judaei 
 dogontcs iibiquo per terras nostrao iurisdictioni subicctas Chris- 
 tianao Icgis ot Imperii ])racrogativa servi sunt nostrae Camci'ao 
 specialcs." And sec on this subject Y. B. 33 Ed. 1 (in Polls scries), 
 pj). xli, 350, and Prynne's *' Short Demurrer to the Jews," &c. 
 (Lond. 16J6, a violent polemic against their ro-admission to 
 JOngland), passim.
 
 ASSIGN.MKNTS OF ( IIOSKS IN ACllOX. 681 
 
 In Hil. 9 Hen. VI. 64, pi. 17, Thomas Eothewel sues J. i'owcr 2. Cases 
 for maintaining W. H. in an action of detinue against him, Eothe- 'where the 
 wel, for " tm box ove charters et muniments.'" Defence, that W. II. gf^gjoiiee 
 had granted to Power a rentcharge, to -which the muniments in to sue in 
 question related, and had also granted to Power the box and the the name 
 deeds, then being in the possession of Eothewel to the use of assignor 
 W. II., wherefore Power maintained W. H., as ho well might. To was in 
 this Paston, one of the judges, made a curious objection by way of question, 
 dilemma. It was not averred that W. H. was the owner of the 
 deeds, bixt only that Piothewcl had them to his use ; and so the 
 propertj" of them might have been in a stranger: " ct issint ceo fuit 
 chose en accion et issint tout void " : the precise meaning of these 
 words is not very clear, biit the general drift is that, for anything 
 that appeared, W. II. had no assignable interest whatever ; and it 
 looks as if the strong expression tout void was meant to take a 
 higher ground, distinguishing between a transaction impeachable 
 for maintenance and one wholly ineffectual from the beginning. 
 But if AV. II. was the true owner, Paston continued, then the 
 whole property of the deeds, &c., passed to Power, who ought to 
 have brought detinue in his own name («). Babington, C. J., and 
 Martyn, J., the other judges present, were of a contrary opinion, 
 holding 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 attornment ; showing that the jiersonal cha- 
 racter of the relation was considered the ground of the rule in both 
 cases. 
 
 In Mich. 31 Hon. YI. 30, pi. lo, Piobert Ilorn 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, in giving judgment, compared the case of the 
 cestui que vse of lands, whether originally or claiming by purchase 
 through him to whose use the feoffment was originallj^ made, 
 
 (ff) Another argument put by the rent and the deeds relating to it, 
 
 plaintiff's counsel, though not very yet he had noue in the box, and 
 
 material, is too quaint to be passed therefore in respect of the box, at 
 
 over : Whatever interest Fewer all events, there was unlawfiil 
 
 might have had by the grant of the maintenance on his part.
 
 68'2 APPENDIX. 
 
 taking part in any suit toucliing the lands. On tliis Fitzherbert 
 remarks [Mayntenauns, 14) " Nota icy que i^er ceo il semhle que un 
 duite ijuit estre assigne ijour satisfaction.'''' So it is said in Hil. 15 
 Hen. VII. 2, i)l, 3, tliat if one is indebted to me, and deliver to me 
 an obligation in satisfaction of tlie debt, "u-berein 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: " £"< sic vide que chose in accion ])oet estre assigne oustre jiw 
 loyal cause, come iust det, mez nemy pur maintenance.''' This form of 
 expression is worth nothing, 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 ex- 
 plain that he did not mean to say the assignee could sue in his o^\ti 
 name ; for he did not think any one could suppose he meant to 
 assert such a plainly impossible proposition. 
 
 This evidence seems sufficient to establish with reasonable cer- 
 tainty the statement in our text, and to convert what was a not 
 improbable conjecture a j'^/o?-/ into historical fact. 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 purely Eoman expositions of them in Bracton 
 and Britton and their first ajipearance in a definitely English form. 
 
 Note H. (p. 2m). 
 Occupations, detdings, (tr., regulated or restrained by statuie. 
 
 (The list here given is probably not com2:)lete. A certain number 
 of the references have been taken from the Index to the Revised 
 Statutes without further verification. The occasional asterisks 
 mean that fiu-ther remarks on the Act or matter thus denoted will 
 be found in the chapter on Agreements of Imperfect Obligation.) 
 
 Apotliecaries. 55 Geo. 3, c. 194 ; 37 & 38 Yict. c. 34. 
 
 Attorneys. See Solicitors. 
 
 Bankers. 3 & 4 Wm. 4, c. 08 ; 7 & 8 Vict. c. 32 ; 8 & 9 Vict. 
 c. 76; 17 & 18 Vict. c. 83. See Lindley, 1. 191. 
 
 Brewers. Inland Eevenuc Act, 1S80. 43 & 44 Vict. c. 20, Part 2.
 
 STATUTORY KEsrUICTIONS OX CONTRACT, 683 
 
 Brokers. G Ann. c. G8 (Eev. Stat.) ; ol Geo. 3, c. Ix. ; iei>. in 
 part, 33 & 34 Vict. c. 60. ^mith v. Lindo, b C. B. N. S. 39o, 587; 
 27 L. J. C. P. 196, 335. 
 
 Building. See Metropolitan. 
 
 Cattle. (Sale in London) 31 Geo. 2, c. 40. 
 
 Chain Cables and AncJwrs. (Sale forbidden if not tested and 
 stamped) 34 & 35 Yict. c. 101, s. 7; 37 & 38 Vict. c. 51. 
 
 Chemists. See Poisons (Sale of). 
 
 Chimney Sweepers must take out a certificate, and are liable to 
 penalties if tbey exercise their business witbout one : 38 & 39 Vict, 
 c. 70. 
 
 Clergy. Charging benefices forbidden, 13 Eliz. c. 20 ; Ex parte 
 Arrowsmith, 8 Ch. D. 96. Trading forbidden, 1 & 2 Vict. c. 106. 
 Supra, p. 257. 
 
 Coals. (Sale in London) 1 & 2 Vict. c. cli. 
 
 Companies. (Formation of : partnerships of more than ten per- 
 sons for banking, or twenty for other purposes, must if not other- 
 wise privileged, be registered under the Act) Companies Act, 1862, 
 s. 4. As to what is an association for the acquisition of gain 
 ■within that s., see Smith v. Anderson (C. A.), 15 Ch. D. 247, over- 
 ruling Sgkes V. Bcadon, 11 Ch. D. 170. 
 
 Conveyancers. 33 & 34 Vict. c. 97, s. 60. Supra, p. 256. 
 
 Dangerous Goods (importation, manufacture, sale, and carriage). 
 Nitro- glycerine, &c. Exjilosives Act, 1875, 38 Vict. c. 17. 
 Petroleum, &c. 34 & 35 Vict. c. 105. 
 
 Generally : Explosive Substances Act, 1883, 46 Vict. c. 3 (but 
 this has only a remote bearing on any contract). 
 
 Excise. General regulations as to trades and businesses subject 
 to laws of — 
 
 7 tS: 8 Geo. 4, c. 53. 4 & 5 Vict. c. 20. 
 
 4 & 5 Wm. 4, c. 51. 26 & 27 Vict. c. 33, s. 15. 
 
 3 & 4 Vict. c. 17. 30 & 31 Vict. c. 90, s. 17. 
 
 Game (sale of). 1 & 2 Wm. 4, c. 32. Porriit v. BaJcer, 10 Ex. 
 759. 
 
 Gaming Securities. 5 & 6 Wm. 4, c. 41. 
 
 Goldsmiths. 17 & 18 Vict. c. 96 (and several earlier Acts). 
 
 Gunpowder (manufacture and keej)ing). 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 : Worthingion v. Curtis, 
 1 Ch. D. 419, see p. 334, supra. 
 
 (Marine). The like : insurances of goods on British ships, "in-
 
 684 
 
 APPENDIX. 
 
 terest 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. Sweeting, 2 Wms. Saund. o92-7. The prohibi- 
 tion of this statute extends to policies on profit and commission : 
 AUkins v. Jupe, 2 C. P. D. 375. 
 
 * Eequirement of stamped policy, 30 & 31 Vict. c. 23. 
 Intoxicating Liquors. Licensing Acts, 1872-1874, 35 & 36 Vict. 
 
 c. 94, and 37 & 38 Vict. c. 49 (and several earlier Acts). 
 
 Landlord and Tenant. Property Tax : 5& 6 Vict. c. 35, s. 103. 
 Laml V. Breivster (C. A.) 4 Q. B. D. 607. Ground game : 43 & 44 
 Vict. c. 47, s. 3. 
 
 Lotteries. Forbidden by 10 Wm. 3, c. 23 (Eev. Stat: al. 17) and 
 a series of j^enal 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. 
 
 Metropolitan Buildings. 18 & 19 Vict. c. 122, 25 & 26 Vict. c. 102. 
 
 Money. Contracts, &c., must be made in terms of some currency. 
 Coimage Act, 1870, 33 Vict. c. 10, s. 16. 
 
 Old Metal. (Minimum quantities to be bought at one time by 
 dealer in) Prevention of Crimes Act, 1871, 34 & 35 Vict. c. 112, 
 6. 13. 
 
 Passenger steamer. Voyage without Board of Trade certificate un- 
 lawful, Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), s. 318. 
 Dudgeon v. Pembroke, L. E. 9 Q. B. 581. 
 
 Pawnbrokers. 35 & 36 Vict. c. 93. Supra, p. 256. 
 
 Poison (sale of). 31 & 32 Vict. c. 121, s. 17, and see 32 & 33 Vict. 
 c. 117, s. 3. Berrij v. Henderson, L. E. 5 Q. B. 296. 
 
 Printing. 32 & 33 Vict. c. 24. Bensley v. Bignold, supra, -p. 253. 
 
 Public Office (sale forbidden). 5 & 6 Edw. 6, c. 16; 3 Geo. 1, 
 c. 15; 49 Geo. 3, c. 126; 53 Geo. 3, c. 54 ; 1 & 2 Geo. 4, c. 54 ; see 
 Grcemey. WrougJdon, 11 Ex. 146, 24 L. J. Ex. 265; and Ben- 
 jamin, 507. 
 
 Religious Opinions (expression of). 9 Wm. 3, c. 35 (Eev. Stat : ul. 
 c. 32). See Cowan v. Milbourn, L. E. 2 Ex. 230. 
 
 Seamen. Sale of or charge upon wages or salvage invalid, 17 & 18 
 Vict. c. 104, 8. 233. 
 
 Simony. Purchase of next presentation, 13 Ann. c. 11 (Eev. 
 Stat : aZ. 12 Ann. stat. 2, c. 12). The purchase of a life estate in 
 an advoweon is not within the statute, and the purchaser, if a 
 clerk, may offer liinisclf for admission on the next ayoidance : 
 Wahh V. lllxhop nf /.inco/n, \.. \{. 10 C !'. .-.IS.
 
 STATUTORY RESTRICTIONS OS CONTRACT. 685 
 
 Slave Trade. Illegal, and contracts relating to avoided, 5 Geo. 4, 
 0. 113, 6 & 7 Vict. c. 88. As to construction of the statutes on 
 contracts made abroad, Santos v. Illidge, G C. B. N. S. 841, 28 L. J. 
 C. P. 317, in Ex. Ch. 8 ih. 861, 29 L. J. C. P. 348. 
 
 Solicitons. 23 & 24 Vict. c. 127. Unqualified persons are for- 
 bidden 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-lOj if not in the nature of champerty, s. 11 : 
 * they cannot be sued upon, but may be enforced or set aside in a 
 discretionary manner on motion or petition, ss. 8, 9. See Rees v. 
 Williams, L. E. 10 Ex. 200. 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, L. E. 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 (TippHng Act) ; 25 & 2G Vict. c. 38 ; 30 & 31 Vict. c. 142, 
 s. 4. To passengers on ship during voyage, 18 &. 19 Vict. c. 119, 
 s. 62. 
 
 Spirits (methylated). As to making, warehousing, sale, &c. : IS 
 & 19 Vict. c. 38 (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. See 
 Benjamin on Sale, 537-9. 
 
 Tobacco. Gi'owing tobacco is forbidden by 12 Car. 2, c. 34, 1 & 2 
 Will. 4, c. 13 (extending the prohibition to U. K.) : and the tobacco 
 trade is fm-ther regulated by a great number of Customs and Excise 
 Acts. 
 
 * Trade Union Contracts. 34 & 35 Vict. c. 31, s. 4. 
 
 Usury. The various statutes which fixed [\dih. sundry exceptions) 
 a maximum rate of lawful interest were all repealed by 17 & IS 
 Vict. c. 90. It would be perhaps needless at such a distance of 
 time to mention this, were it not that by an extraordinary over- 
 sight the last edition of Story on Contracts (§ 722) represents the 
 statute of Anne (12 Ann. stat. 2, c. 16) as still regulating the law 
 of interest in England. *As to securities given after repeal of 
 usury laws for money lent on usurious terms before the repeal, 
 Fliyht V. Reed, 1 II. & C. 703, 32 L. J. Ex. 265. 
 
 Wagers. 8 & 9 Vict. c. 109, supra, p. 258. Benjamin on Sale, 
 435. As to the extent of the exceptions, Parsons y. Alexander, 5 E. 
 & B. 263, 24 L. J. Q. B. 277 ; Coombes v. Dibble, L. E. 1 Ex. 248 ; 
 Diggle v. Higgs, 2 Ex. D. 422 ; Trimble v. Hill (appeal to J. C. 
 from New S. Wales on colonial statute in same terms), 5 App. Ca.
 
 686 APPENDIX. 
 
 342. Forbearance of proceedings to enforce payment of racing 
 debts by piirely conventional sanctions is not an unlawful con- 
 sideration : qu. -whether or not a good consideration ; Buhl v. Yel- 
 verton, 9 Eq. 471. 
 
 Wages. Payment otherwise than in money forbidden, 1 & 2 Wm. 
 4, c. 37 (Truck Act), in the trades enumerated in s. 19. Cutis y. 
 Ward, L. E. 2 Q. B. 357. The stoppage of wages for frame rents, 
 itc, in the hosiery manufactiu'e 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 Willis v. ThorjT, 
 L. E. 10 Q. B. 383; S'lnith v. Walton, 3 C. P. D. 109. 
 
 Weights and Measures. Standards defined, and use of other 
 weights and measures forbidden, o Geo. 4, c. 74 ; 5 & 6 Wm. 4, 
 0. 63 ; 18 & 19 Vict. c. 72 ; 22 & 23 Vict. c. 5G. The use of the 
 metric system is legalized by 27 & 28 Vict. c. 117. Sales by cus- 
 tomary weights or measiu'es which are well known multiples of 
 standard weight or measure are not unlawful : Hughes y. Ilum- 
 2Jhreys, 3 E. & B. 954, 23 L. J. Q. B. 356 ; Jones y. Giles, 10 Ex. 
 119, 23 L. J. Ex. 292. 
 
 Note I. (p. 349). 
 
 Indian Contract Act on Unlcnvful Agreements (ss. 23, 24, 26, 27, 28, 
 30, 57, 58). 
 
 [It is thought unnecessary to set out here the illustrations, of 
 which there are several, to s. 23, as the cases put are sufficiently 
 obvious. It must be remembered, however, that the illustrations 
 are an integral part of the enactment. None is given on the head 
 of public policjs whether from a desire not to limit judicial discretion 
 or from the difficulties attending the subject: so that the Courts 
 are apparently left to fall back upon the English authorities. The 
 sections or clauses which distinctly differ from the corresponding 
 English law are marked with an asterisk.] 
 
 23. The consideration or object of an agreement is lawful unless 
 it is forbidden by law; or is of such a nature that, if permitted, it 
 would def(;at the provisions of any law ; or is fraudulent ; or in- 
 volves or implies injury to the person or property of another; or 
 the Court regards it as immoral or opposed to public policy. 
 
 In each of those cases, the consideration or object of an agreement 
 is said to bo unlawful. Every agreement of which the object or 
 consideration is unlawful, is void. 
 
 21. If any pint of a single considoratinn for one or more objects,
 
 INDIAN CONTRACT ACT ON UNLAWFUL AGREEMENTS, 687 
 
 or any one or any part of any one of several considerations for a 
 single object is unlawful, the agreement is void. 
 
 Illustration. 
 
 A. promises to superintend, on Lchalf of B., a legal manufacture 
 of indigo and an illegal traffic in other articles. B. pro- 
 mises to i)ay to A. a salary of 10,000 rupees a year. The 
 agreement is void, the object of A.'s promise, and the con- 
 sideration for B.'s promise, being in part unlawful. 
 
 26. Every agreement in restraint of the marriage of any person, 
 other than a minor, is void. 
 
 27. Every agreement bj' which anyone is restrained from exer- 
 cising a lawful profession, trade, or business of any kind, is to that 
 extent void. 
 
 Exception 1. One who sells the good-will of a business may agree 
 with the buj'er to refrain from carrying on a similar business, within 
 specified local limits,* so long as the buyer, or any person deriving 
 title to the good- will from him, carries on a like business therein,* 
 provided that such limits appear to the Court reasonable, regard 
 being had to the nature of the business. 
 
 Exception 2. Partners may, upon or in anticipation of a dissolu- 
 tion of the partnership, agree that some or all of them will not carry 
 on a business similar to that of the partnership within such local 
 limits as are refeiTcd to in the last preceding exception. 
 
 Exception 3. Partners may agree that some one or all of them \d\\ 
 not carry on any business other than that of the partnership, during 
 the continuance of the partnership. 
 
 28. Every agreement by which any party thereto is restricted 
 absolutely from enforcing his rights under or in resj^ect of any con- 
 tract by the usual legal proceedings in the ordinary tribunals, or 
 which limits the time within which he may thus enforce his rights, 
 is void to that extent. 
 
 Exception 1. This section shall not render illegal a contract, by 
 which two or more jiersons agree that any dispute which may arise 
 between them in respect of any subject or class of subjects, shall 
 be referred to arbitration, and that only the amount awarded in 
 such arbitration shall be recoverable in respect of the dispute so 
 referred. 
 
 *When such a contract has been made a suit may be brought for 
 its specific performance, and if a suit other than for such specific 
 performance, or for the recovery of the amount so awarded, is 
 brought by one party to such contract against any other such party 
 in respect of any subject which they have so agreed to refer, the 
 existence of such contract shall be a bar to the suit.
 
 688 APPKXDIX. 
 
 Exception 2. Nor shall this section render illegal any contract in 
 writing by whicli two or more persons agree to refer to arbitration 
 any question between them wbicb bas already arisen, or affect any 
 provision of any law in force for the time being as to references to 
 arbitration. 
 
 30. Agreements by way of wager are void, and no suit sball bo 
 brougbt for recovering anything alleged to be won on any wager or 
 entrusted to any person to abide the result of any game or other 
 uncertain event on which any wager is made. 
 
 This section shall not be deemed to render unlawful a subscriijtion 
 or contribution, or agreement to subscribe or contribute, made or 
 entered into for or toward any plate, prize, or sum of money " of the 
 value or amount of five hundred rupees or upwards, to be awarded 
 to the winner or winners of any horse-race.* 
 
 Nothing in this section shall lie deemed to legalize any trans- 
 action connected with horse-racing to which the provisions of section 
 294 A. of the Indian Penal Code applj\ 
 
 57. Where persons reciprocally promise, firstly to do certain 
 things which are legal, and secondly, under specified circumstances, 
 to do certain other things which are illegal, the first set of promises 
 is a contract, but the second is a void agreement. 
 
 IlJustration. 
 
 A. and B. agree that A. shall sell B. a house for 10,000 rupees, 
 
 but that if B. uses it as a gambhng house, he shall paj" A. 
 
 50,000 rupees for it. 
 The first set of recij^rocal promises, namely, to sell the house and 
 
 to j)ay 10,000 rupees for it, is a contract. 
 The second set is for an unlawful object, namely, that B. max use 
 
 the house as a gambling house, and is a void agreement. 
 
 58. In the case of an alternative promise, one branch of which is 
 legal and the other illegal, the legal branch alone can be enforced. 
 
 lUustration, 
 
 A. and B. agree that A. shall pay B. 1,000 rupees, for which B. 
 
 shall afterwards deliver to A. either rice or smuggled 
 
 opium. 
 This is a valid contract to deliver rice, and a void agreement as 
 
 to the oi)iuui.
 
 APPENDIX (\OTF. k), 689 
 
 Note K. (p. 389). 
 Indian Contract Act on Impossible Agreements. 
 53. When a contract contains reciprocal promises, and one party 
 to the contract prevents the other from performing his promise, the 
 contract becomes voidable at the option of the party so prevented ; 
 and ho is entitled to compensation from the other party for any loss 
 which he may sustain in consequence of the non-performance of the 
 contract. 
 
 Illustration. 
 
 A. and B. contract that B. shall execute certain work for A. for 
 a thousand rupees. B. is ready and willing to execute the 
 work accordingly, but A. prevents him from doing so. The 
 contract is voidable at the option of B., and if he elects to 
 rescind it he is entitled to recover from A. compensation 
 for any loss which he has incurred by its non-performance. 
 
 56. An agreement to do an act impossible in itself is void. 
 
 A contract to do an act which after the contract is made becomes 
 impossible, or by reason of some event which the promisor could not 
 prevent, unlawful, becomes void when the act becomes impossible 
 or vmlawful. 
 
 Where one person has promised to do something which he knew, 
 or with reasonable diligence might have known, and which the 
 promisee did not know to be impossible or unlawful, such iwomisor 
 must make compensation to such promisee for any loss which such 
 promisee sustains through the non-performance of the promise. 
 
 Illustrations, 
 a. A. agrees with B. to discover treasure by magic. The agreement 
 
 is void. 
 h. A. and B. agree to marry each other. Before the time fixed 
 
 for the marriage A. goes mad. The contract becomes void. 
 
 c. A. contracts to marry B., being already married to C, and 
 
 being forbidden by the law to which he is subject to prac- 
 tise polygamy. A. must make compensation to B.'for loss 
 caused to her by the non-performance of his promise. 
 
 d. A. contracts to take in cargo for B. at a foreign port. A.'s 
 
 government afterwards declares war against the country 
 in which the port is situated. The contract becomes void 
 when war is declared. 
 
 e. A. contracts to act at a theatre for six months in consideration 
 
 of a sum paid in advance by B. On several occasions A. 
 is too ill to act. The contract on these occasions becomes 
 void(^/). 
 
 {(() A. would apparently be boimd were something' in the particular 
 
 under s. 65 to restore a proportion- contract to show that the payment 
 
 ate part of the payment, which in was intended to be apportioned. 
 England he would not unless there 
 
 1\ Y Y
 
 600 APPFA'DIX. 
 
 61. If any promisee neglects or refuses to afford tlie promisor 
 reasonable facilities for the performance of his promise the promisor 
 is excused by such neglect or refusal as to any non-performance 
 caused thereby. 
 
 Illustration, 
 
 A. contracts -with B. to repair B.'s house. B. neglects or refuses 
 to point out to A. the place in which his house requires 
 rej^air. B. is excused for the non-performance of the 
 contract if it is caused by such neglect or refusal. Com- 
 pare also Chapter III. of the Act " On Contingent Con- 
 tracts," ss. 31 — 36. 
 
 Note L. (p. 451). 
 Bradon on Fundamental Error. 
 
 De acquirendo rerura dominio, fo. Ibli, 16: — "Item non valet 
 donatio, nisi tam dantis quam accipientis concurrat mutuus consensus 
 et voluntas, scilicet quod donator habeat animum donandi et dona- 
 tarius animum recipiendi. ISTuda enim donatio (a) et nuda pactio 
 non obligant aliquem nee faciant aliquem debitorem ; iit si dicam, 
 Do tibi talem rem, et non habeam {h) animum donandi nee tradendi 
 nee a traditione incipiam, non valet, ut si dicam, Do tibi istam rem, 
 et illam nolim (c) tradere vel (c) sustinere quod illam tecum feras 
 vel arborem datam succidas, non valet donatio quia donator plene 
 non consentit. Item oportet quod non sit error in re data, quia si 
 donator senserit do una re ot donatarius do alia, non valet donatio 
 propter dissensum : et idem erit si dissentio fiat in genere, numero, 
 et quantitate . . . [Then follow instances.] Et in fine notan- 
 dum quod si in corpus quod traditur sit consensum, non nocet, 
 quamvis circa causam dandi atque recipiendi sit dissentio : ut si 
 pecuniam numeratam tibi tradam, vel quid tale, et tu earn quasi 
 creditam [d) accipias, constat, ad te proprietatem transire." 
 
 {(t) ratio MS. Ilobhouse, Lin- Review, No. 2.) 'Bni creditam inihe 
 
 coin's Inn. reading- of a majority of ^ood MSS. 
 
 (i) habucro MS. Hobh. (Jjiucolu's Inn, Camb. I'niv., Brit. 
 
 (c) MS. Hobh.: edd. nolui, ct. Mus., Bibl. Nat. Paris) and is evi- 
 
 Ut) Tradiiam ed. 15G0, followed dently required by the .sense. Brac- 
 
 without remark by Sir T. Twiss, ton is quoting from the Digest, 41. 
 
 1878, who also gives by a misprint, 1. de acq. rer. dom. 36 : op. Gliter- 
 
 and translates, tali for talc im- bock, Hcnr. de Bracton, p. 85, who 
 
 mediately above. (See on the nssumed, without cause as the MSS. 
 
 general character of this edition now show, that Bractcm misuuder- 
 
 "Thc Text of Bracton," by Prof. stood the passage. The corruption, 
 
 Paul Vinogradoff, Law Quarterly however, is an easy and early one.
 
 APPENDIX (note M). 691 
 
 Note M. (p. -ITs). 
 Mistalx in Wills. 
 
 Properly s^^eaking, thero is no j urisdiction 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 {((). But it has no power to remedy a mistake ' ' by modifying 
 the language iised bj^ the draughtsman and adopted by the testator 
 so as to make it express the supposed intention of the testator. . . 
 Such a mode of dealing with wills would lead to the most dangerous 
 consequences, for it would convert the Court of Probate into a court 
 of construction of a very i^eculiar kind, whose duty it would be 
 to shajie the will into conformity with the suj^posed intentions of 
 the testator " {h). Exactly the same rule has been laid down in 
 equity (c). 
 
 The cases in which it is said that the Court will interfere to cor- 
 rect mistakes in wills may be classified thus : 
 
 1. Cases purely of construction according to the general intention 
 collected from the will itself {d). 
 
 2. Cases of equivocal description, of words used in a special 
 habitual sense {d), or of a wrongly given name which may be cor- 
 rected by a sufl&cient description (e). 
 
 3. Cases of dipositions made on what is called a false cause (/), 
 t. e., on the mistaken assumption of a particular state of facts 
 existing, except on which assumption the disposition would not 
 have been made. These are analogous to the cases of contract 
 governed by Couturier v. Hastie[(j) : and just as in those cases, the 
 expressed intention is treated as having been dependent on a con- 
 dition 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 ap2)arent difficulty caused by the 
 particular words. 
 
 {(() E. (J. Morrell v. Morrell, 7 P. {c) Not only an equivocal name 
 
 D. 68, following Fulton v. Andrew, maybe explained, butanamewhidi 
 
 L. R. 7 H. L. 4:48. applies to ouly one persou may be 
 
 (/y) Hurler v. ILirfcr, L. R. 3 P. corrected by a description sufii- 
 
 & D. 11, 21, following Guard- ciently showing that another person 
 
 house V. Bluclcburn, L. R. 1 P. & D. is intended : Charter v. Charter, 
 
 109. L. R. 7 H. L. 364. 
 
 (c) Newhurgh v. Xcwhuri/h, 5 (/) Campbell v. Freneh, 3 Ves. 
 Madd. 364. 321. _ 
 
 [d) See Hawkins on Construction (y) o H. L. C. G73. Supra, pp. 
 of Wills, Introduction. 371, 441. 
 
 Y y2
 
 692 
 
 APPENDIX, 
 
 Original 
 statement 
 in Ham- 
 mersley v. 
 De Biel. 
 
 Subse- 
 quent ex- 
 planations 
 in IIouHO 
 of Lords. 
 
 Note N. (p. 485). 
 
 On the supposed equitaUe doctrine of " making representations good.''* 
 
 I shall here endeavour to show in detail, in accordance with what 
 is said in the text, that this much alleged 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 contracts on the one hand, 
 and the principle of estoppel by assertion as to existing facts on the 
 other, is imaginary. In the principal class of cases the "repre- 
 sentation " is of an intention to make a provision by will for persons 
 about to marry, in reliance on which representation the marriage 
 takes j)lace. The leading authority is Hammer sley v. De Biel (a), 
 decided by the House of Lords in 18-43 on appeal from the Court of 
 Chancery. In the Court below {h) Lord Cottenham had laid down 
 the proiDosition 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 purpose of realizing such representation." 
 This appears to be the source of all the similar statements which 
 have since been made (c). Taken with its context, however, it 
 need not mean more than that an exchange of j)roposals and state- 
 ments by which the conduct of parties is determined may, as con- 
 taining all the requisites of a good agreement, amount to a contract, 
 though not to a formal contract. To Mr. Justice Stephen Lord 
 Cottenham's words "appear to mean only that contracts of this 
 nature may be made like other contracts by informal documents, or 
 jmrtly by documents and partly by conduct " {d). And in this sense 
 the rule seems to have been understood in the Ilouse 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 EoUs Court it had also been dealt with on that footing (e). 
 Still more pointed is the remark made by Lord St. Leonards in 
 18o4 : — " Was it merely a rejiresentation in Ilummers/ey v. Be Biel ? 
 Was it not a proposal with a condition which, being accepted, was 
 equivalent to a contract ?" (/). In the terms of the Indian Con- 
 tract Act, it was the case of a liroj^osal accepted by the performance 
 
 («) 12 CI. &F. 4.5. 
 
 (4) 12 CI. & F. at p. 62. 
 
 (c) The turn of language is in 
 itself not novel. It seems to be 
 modellid on tliat whicli liad long 
 before been used iu cases of a dif- 
 ferent class and for a different imr- 
 
 poso. Sec Ecans v. BklitcU, 6 
 Ves. 174. 
 
 [d) 6Ex. D. 299. 
 
 \() Nom. Do Bed v. Thomson, 3 
 I5eav. -169. 
 
 (/') MuioiscU v. Hedges White, 
 4 ir. L. C. at p. 1051 ; cp. p. 1059.
 
 " REl'KESE.NTATIOXS." 693 
 
 of the conditions. Tlio 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 does a statement 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 ad- 
 vised, I shall leave you 10,000?.," is not a promise and cannot 
 become a contract : neither can it act as an estoppel, for it cannot 
 matter to the other party's interest whether the statement of an 
 intention which maj^ be revoked at any time is at the moment true 
 or false. And the same is true of any less exjjlicit 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 (a). And in that case the true doctrine was 
 again distinctly affirmed by Lord Cranworth (b). 
 
 " 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 identical." 
 
 He proceeded to comment on Hummer si ey v. De Biel, and to 
 express a decided opinion that the language there used by Lord 
 Cottenham was not meant to support, and did not sujjport, the 
 notion that words or conduct not amounting to a true contract may 
 create an equitable obligation which has the same effect. ' ' The 
 only distinction 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 (c), 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, because 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 not be binding as a contract. Lord St. Leonards 
 dissented both on the evidence and on the law. His opinion seems 
 
 (a) MaioiseU v. Ecdacs White, 4 {c) 5H. L. C. 185. A pretty full 
 
 H. L. C. 1039. snramary is given by Stephen, J, 
 
 (/') At pp. 10.35-6. 5 Ex. D. atp: 301.
 
 694 
 
 APPENDIX. 
 
 Cases in 
 Court of 
 Chancery. 
 Opinion 
 of Stuart, 
 
 v.-c. 
 
 on the wliole to come to tliis : " 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 onlj' and not of 
 intention." On this point, however, the opinion of the majority 
 (Lord Cranworth and Lord Brougham) is conclusive (a). Nor is 
 the contention of Lord St. Leonards altogether well paired with 
 what he had himself said not long before in MaunseU v. Hedges 
 White {h):— 
 
 " I do not dispute the general principle that what is called a 
 representation, which is made as an inducement for another to act 
 ripon it, and is followed by his acting upon it, will, especially in 
 such a case as marriage, be deemed to be a contract." 
 
 In a much earlier case of the same class before Lord Eldon (c) 
 the language used is indecisive: "arrangement" and "engage- 
 ment " seem jjreferred to " agreement." In two later ones decided 
 by Sir John Stuart (d), an informal statement or promise as to a 
 settlement on a daughter's marriage, and an informal promise to 
 leave proj^erty 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 con- 
 tract had somehow a binding force. He appears further to have 
 held that, inasmuch as these were not properly cases of contract, it 
 was immaterial to consider whether the Statute of Frauds ajiplied 
 to them, and to have thought that the opinion of Lord Cranworth 
 in Jorden v. Money was inconsistent with the decision in Jlam- 
 mersley v. De Biel (e). But these opinions are inconsistent with the 
 true meaning and effect of the cases in the House of Lords which 
 
 {a) And see Mr. Justice Stephen's 
 criticism, 5 Ex. D. at p. 303. 
 
 {h) 4 H. L. C. at p. 1059. 
 
 [v) Ludcrs V. Anstey, 4 Ves. 501. 
 
 \d) Ti-ole V. ^oady, 2 Giff. 1 
 (1850) ; Lojfus v. Maw, 3 Giff. 592 
 (18G2). In Loffns v. Maw there 
 is a suggest iou that the "represen- 
 tation ' ' affects the specific property 
 as an e(j[uitable charge. 
 
 [c) Liiffas V. Maw, 3 Giff. at pp. 
 603-4. In Trolc v. Soadi/, a strange 
 and entangled case, no point Avas 
 made on the Statute of Frauds. But 
 tlicre it ai)pears to have been esta- 
 blished as a fact that tlic wife's 
 father represented to the intended 
 liusband, an Kiighsliniau, tliat ;i 
 certain trust disposition of Scotch 
 
 land in the proper Scottish fonn 
 was irrevocable. This was, as re- 
 gards the person to whom it was 
 made, a representation of foreign 
 law, and therefore eqiuvalent to a 
 rej^resentation of fact. And thus 
 the decision may have been right 
 on the ground of cstopjiel. But it 
 is far from easy to discover on what 
 ground it really proceeded. The 
 case went to the Ajjpeal Court, but 
 was compromised : see 1 Ch. 145. 
 Tlie still later case of Skidmore v. 
 Jintdfvrd, 8 Eq. 134, decided by the 
 same judge in 18G9, may be and 
 has been regarded as a case of true 
 contract : Fry on Specific Per- 
 formance, § 299, p. 133, 2nd cd.
 
 " RErRESEXTATIOXS." 695 
 
 have already been cited : and one of them is now expressly over- 
 ruled (a). It must be admitted that later judicial exjiressions are 
 to be found which in some degree countenance them ; but these 
 have been, without excei:ition, unnecessary for the decision of the 
 cases in which they occurred. Nor could they in anj' event out- 
 weigh declarations of the law made (as I venture to think) with 
 sufficient clearness in a Court which not only gives the law to all 
 others in England, but disclaims any power of reconsidering its 
 own decisions. It is remarkable that the authoritative explanation 
 oi Hammtrsley \. De Biel{b) given ia. MuunseU v. Hedges White (c) 
 has in almost all the recent cases been left unnoticed. 
 
 Coverdale v. Eastwood (1872) (d) was a case of i^recisely the same decent 
 
 tvpe as Haminersky v. De BieL Bacon, V.-C. decided it on the ^^^^^ ^ 
 " . sameclass. 
 
 ground that the transaction amounted to a contract, and so it was 
 
 expressed in the decree. But he also thought that there existed, 
 and was applicable to the case in hand, " this larger princii^le, that 
 where a man makes a representation to another, in consequence of 
 which that other person contracts engagements, or alters his posi- 
 tion, or is induced to do any other act which either is j^ermitted by 
 or sanctioned by the iDcrson making the representation, the latter 
 cannot withdraw from the representation, but is bound by it con- 
 clusively." Coles V. PiUci»(jton (e) (1874, before Malins, V.-C.) 
 was a case of a verbal agreement to allow the occupation of a house. 
 This had been acted on by the plaintiff, and thus was enforceable 
 notwithstanding the Statute of Frauds under the rule of equity as 
 to part performance : but a difficulty was raised about want of 
 consideration, and the supposed doctrine of " rej)resentations " was 
 invoked, in a manner previously unheard of, to supply a kind of 
 moral consideration. But the plaintiff had agreed to pay the 
 ground rent and rates and taxes during the occupation ; which 
 surely was consideration enough. In Ite Badcock, 17 Ch. D. 361 
 (1880) the same judge treated the cases on marriage settlements as 
 depending on actual contract (see at p. 366). Then in Dashwood v. 
 Jermyn (/) (1879), which was another marriage case. Bacon, Y.-C. 
 held that the connexion between the statement relied on as a pro- 
 mise 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 rejiresentation on the faith of which another 
 man alters his position, enters into a deed, incurs an obligation, 
 
 {a) lof/is V. Maw is clearly dis- (r) 4 H. L. C. 1039. 
 
 approved by Lord Selborue and {</) 15 Eq. 121. 
 
 Lord O'Hagan in Iladdison v. Al- {e) 19 Eq. 174, see at p. 178. 
 
 dcrson, 8 App. Ca. at pp. 473, 483. ( f) 12 Ch. D. 776. 
 
 {h) 12 CI. & F. 45.
 
 GOG 
 
 AVPEXDIX. 
 
 Cases of 
 collateral 
 " repre- 
 senta- 
 tions ' ' 
 inducing' 
 contracts. 
 
 the man making it is bound to perform that representation, no 
 matter what it is, whether it is for present payment or for the con- 
 tinuance 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 en- 
 gagement which the man making it is bound to perform." 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. Finally we have Alderson v. Maddison (1880) (a), where 
 there was an agreement to leave property by will as a reward for 
 services. Here Stephen, J. set forth, as we have seen in the text, 
 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 
 reversed 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 
 encouragement whatever, to say the least, was given to the doctrine 
 of " representation." 
 
 So far the authorities as to direct enforcement of "representa- 
 tions." We do not count among them Piggott v. Stratton [b), 
 decided by the Court of Appeal in 1859, in which Lord Campbell 
 incidentally took a minimizing view of the effect of Jorden v. 
 Money (c). That case, so far as it did not proceed on express cove- 
 nant, was one of equitable estoppel. 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 
 soiuething material 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 partj^ misled. It is difficult in 
 these cases to see why the so-called representation does not amount 
 to a collateral agreement, or even to a term in the principal contract 
 itself. In the first set of cases, where specific performance was 
 
 {a) ') Ex. D. 293, 7 Q. B. D. 
 174, 8 App. Ca. 467. 
 
 (A) 1 D. J. S. 33. 
 
 (c) At p. 51. But Lord Sclhonic 
 Hcems to adopt the (ipinion of Lord 
 
 Cranworth to its full extent in 
 Citiznis' Bank of Louisiana v. First 
 KalionalJ'xoik of Xcw Orleans, L.R. 
 C II. L. at p. 3G0.
 
 " hi;i'J{Ksi:m A 1 lo.Ns." ()d7 
 
 refused, a veudor or lessor had reprosontod that he wouhl dcj some- 
 thing for the purchaser's or lessee's benefit, either in the way of 
 repair or improvement on the i)roperty itself (a), or by executing 
 works on adjoining property as part of a general plan (h). In these 
 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 (c). In the one case which 
 goes farther the contract was a partial re-insurance effected 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- 
 instu-ance, 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 re-insured by A. 
 with C. without communication with B. It was held that society 
 B. was entitled to set aside the policy of re-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 intention ought to have 
 been communicated. "If a person makes a rej)resentation by 
 which he induces another to take a particular course, and the cir- 
 cumstances 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 rej^resenta- 
 tion to communicate to the party to whom the representation has 
 been made the alteration of those circumstances " (d). 
 
 This case, decided by the Lords Justices in 1864, is that which 
 gives rise to most difficulty. No reason appears why the retaining 
 of the specified part of the risk by the re-insuring office should not 
 have been deemed a term or condition of the contract. 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 
 
 {a) Lamarc v. I)i.ron, L. R. 6 a question if he would have ad- 
 
 H. L. 414. hered to this later, when we look 
 
 [b] Beaumont v. Dukes, Jac. 422; at his opinions in Maunsell v. 
 
 Myer&y. Watson, 1 Sim. N.S. 523. Hedycs 1J Ititc imdJordr/i v. Monei/): 
 
 {(■) Lord Cranworth, 1 Sim. N.S. Lord Cairns, L. K. G H. L. 428. 
 
 529 (this was in 1851, and, coming {d) Traill v. Baruxj, 4 D. J. S. 
 
 to the Vice-Chancellor's Court from 318, 329, per Turner, L. J,, ap- 
 
 the Exchequer, he probably took proved by Fry, L. J., Scottish I'e- 
 
 doctrines of equity current in the troliuin Co. 23 Ch D. at ji. 438. 
 book.s as he found them : it may he
 
 698 APPENDIX. 
 
 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 i^art of the i^ro- 
 jjosed 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 con- 
 tract 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 (a) the question is treated as one of agreement entirely. 
 In the latest of the kind, Lamare v. Dixon {h), 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 ah-eady taken, or that 
 he would forthwith 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 warranty : 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," he may have meant that he 
 preferred to regard it as a statement of fact operative by way of 
 estoppel. 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 com- 
 mon law (c). In fact agreements collateral to leases, and not in 
 writing, have of late years been enforced without doubt. In the 
 last case, which was in 1875 [d), the lessor's imdcrtaking was to 
 
 (a) Tcacoch v. FcnsoH, 11 Bcav. Court of Cliauccry, as tlic phrase 
 355. was, to niiike Avliat ho could of it 
 
 (b) L. K. 6 II. L. 414. at law, dciivcd substantial or any 
 \c) It would bo curious to know profit from that liberty. 
 
 in what jn'oportion of cases under {il) A)i(irU v. J)itkf, L. R. 10 Q. B. 
 
 the 1)1(1 practice a party left by the 171. Tlic others -ayq 3Iorgan v.
 
 " REPRESKXTATIONS." G99 
 
 rej-jair and fuiuisli the lioiiso demisotl. In all of tlioni the facts 
 appear undistinguishable in their character from those which havo 
 been treated in the Court of Chancery as establishing a right to 
 relief on the ground of " representation." 
 
 There remains a class of cases in equity in which it has been held Cases 
 that a statement made to a person intended to act upon it by one T-,^^^ 
 who knows it to be false, or is recklessly ignorant whether it is true prescnta- 
 or false, may create in the person who acts on it to his injury a tion gives, 
 STxbstantive right to compensation. Here the statement is a wrong, o^ubst^- 
 and the remedy is precisely analogous to, and before the Judica- tive right 
 ture Acts was concurrent with, that which was given at law by the ^^ action, 
 action of deceit, or action on the case in the nature of an action 
 of deceit («). It will be sufficient to give references to a few of the 
 decisions (i). 
 
 A rule established by some of these, of which Slim v. Croucher (h) 
 is an instance, is that a man in whose peculiar knowledge a fact 
 must have been cannot be heard to say that when he afterwards 
 positively asserted the contrary of the fact he had forgotten the 
 true state of things. Whether courts of common law would have 
 refused to admit this rule, or whether, even if not affirming it as a 
 rule of law, they would not have acted on it in practice as a rule of 
 evidence, is now a question of no importance (c). 
 
 It is worth remark that not unfrequently a difficulty occurs 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 abso- 
 lutely amount to contract, come uncommonly near it. . . . If 
 you choose to say, and say without inquirj^ ' I warrant that,' that 
 is a contract. If you say ' I know it,' and if you say that in order 
 
 Griffith, L. R. 6 Ex. 70 ; Eishhie v. similar actions iu coui-ts of law, the 
 
 Adcane, 8 Ch. 756. The ground defendant being then unable in 
 
 taken as to the Statute of Frauds is those courts to give evidence) ; Slim 
 
 that the collateral agreement is not v. Croucher (1860), 1 D. F. J. 518 
 
 a "contract or sale of lands," &c. : (where, as to the concuiTent jiu-is- 
 
 the effect of the Statute being as it diction, see j)er Lord Campbell at 
 
 were exhausted by the principal p. 523 : but the case might also be 
 
 contract ; with wliich the collateral considered as one of estopjjel, see 
 
 one must of course be consistent. per Lord Selbome, 5 Api?. Ca. at 
 
 {(() " It is precisely analogous to p. 935); Peck v. Gurney, L. E. 6 
 
 the common law acticn for deceit" ; H. L. 377 (1873). 
 Lord Chelmsford, L. R. G H. L. at {<■) Lord Chelmsford seems to 
 
 p. 390. " It is in the nature of an have thought the equitable remedy 
 
 action or proceeding r.r delicto'''' : was more extensive than the legal 
 
 Lord Cau-ns, ibid, at p. 402. (L. R. 6 H. L. 390) : but in the 
 
 (i) Evans V. Biclniell (1801), 6 case of .S/J;« v. C;-owA<?>- Lord Camp- 
 
 Ves. 17-1 (where Lord Eldon com- bell recognized no distinction, 
 ments at large on the danger of
 
 '00 
 
 ATl'KNUlX. 
 
 to save tlic trouble of inquiring, that is a false representation — you 
 are saying -svliat is false to induce them to act upon it " (a). Cases 
 are indeed quite possible in ^v'hich the legal effect of the facts may 
 equally be considered as warranty, estopj^el, 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 distinguish, 
 on which of two or more i^ossible grounds they rested their deci- 
 sions, it is not surprising that a good deal of ambiguity has gathered 
 round the subjects discussed in this note. 
 
 Note 0. (p. 481). 
 
 Indian Contract Act on Fraud, etc. (6). 
 
 Indian 10. All agreements are contracts (c) if they are made by the free 
 Contract consent of parties competent to contract, for a lawful consideration 
 Fraud &c. and '^'ith a lawful object, and are not hereby expressly declared to 
 be void 
 
 13. Two or more persons are said to consent when they agree upon 
 
 the same thing in the same sense. 
 
 14. Consent is said to be free when it is not caused by 
 
 (1) coercion, as defined in section fifteen, or 
 
 (2) undue influence, as defined in section sixteen, or 
 
 (3) fraud, as defined in section seventeen, or 
 
 (4) misrejiresentation, as defined in section eighteen, or 
 
 (5) mistake, subject to the provisions of sections twenty, 
 
 twenty-one, and twenty-two. 
 
 Consent is said to be so caused when it would not have been given 
 but for the existence of such coercion, undue influence, fraud, mis- 
 representation, or mistake. 
 
 15. Coercion is the committing, or threatening to commit, any 
 act forbidden by the Indian Penal Code, or the unlawful detaining, 
 or threatening to detain, any propertj^ to thci^rejudice of any person 
 ■whatever, with tlie intention of causing any person to enter into an 
 agreement. 
 
 Explanation. — It is immaterial whether the Indian Penal Code is 
 or is not in force in the place where the coercion is employed. 
 
 («) Lord Blackburn. liroinili/v. omiiivd. Sonic of thorn have been 
 
 f'anip/if// (Sc.) h Ai)p. C!a. at p. 952: alrciuly cited in the text. 
 
 thewliolcpassii^oHhould bcsludicd. (r) Sec the defiiiitioiin in ,s. 2, 
 
 (//) The ilhistriitions arc bnc nute A., p. 63G, above.
 
 INDIAN CONTRAfT ACT ON FUAT-D. 701 
 
 [This goes iu terms far beyond English law, for it does not require 
 that the coercion should be exercised by or even known to the other 
 l^arty, nor that the j^erson coerced should be the party whoso 
 consent is to be obtained, or in any way related to him. I do not 
 know whether the section has been judicially interpreted in any of 
 the High Courts.] 
 16. Undue influence is said to bo employed in the following cases : — • 
 
 (1) When a person in whom confidence is reposed by 
 another, or who holds a real or apparent authority 
 over that other, makes use of such confidence or 
 authoritj' for the purpose of obtaining an advan- 
 tage over that other, which, but for such confidence 
 or authority, he could not have obtained ; 
 
 (2) When a person whose mind is enfeebled by old age, 
 illness, or mental or bodily distress, is so treated 
 as to make him consent to that to which, but for 
 such treatment, he would not have consented, 
 although such treatment maj' not amount to 
 coercion. 
 
 Fraud means and includes any of the following acts committed by 
 a party to a contract or with his connivance, or by his agent, with 
 intent to deceive another party thereto or his agent, or to induce 
 him to enter into the contract : — • 
 
 (1) The suggestion, as a fact, of that which is not true, 
 by one who does not believe it to be true ; 
 
 (2) The active concealment of a fact by one having 
 knowledge or belief of the fact ; 
 
 (3) A promise made without any intention of i)erform- 
 ing it ; 
 
 (4) Any other act fitted to deceive; 
 
 (5) Any such act or omission as the law specially 
 declares to be fraudulent. 
 
 Explanation. — Mere silence as to facts likely to affect the willing- 
 ness of a person to enter into a contiact is not fraud, unless the cir- 
 cumstances of the case are such that, regard being had to them, it 
 is the duty of the person keeping silence to speak, or unless his 
 silence is in itself equivalent to speech. 
 IS. Misrepresentation means and includes — 
 
 (1) the positive assertion, in a manner not warranted 
 by the information of the person making it, of that 
 which is not true, though he believes it to be true; 
 
 (2) any breach of duty which, without an intent to 
 deceive, gains an advantage to the person commit- 
 ting it, or any one claiming under him, by mis-
 
 '02 APPENDIX. 
 
 leading another to his prejudice, or to the pre- 
 judice of any one claiming under him ; 
 (3) causing, however innocently, a party to an agree- 
 ment to make a mistake as to the substance of the 
 thing which is the subject of the agreement. 
 [Sub-s. (2) seems hardly in place here. The framers of the draft 
 Civil Code of New York, from which it is taken (§758), appear to 
 have generalized from Bulkley v. Wilford, 2 CI. & F. 102. That 
 case, however, proceeds rather on the special duty of an agent, see 
 p. 246 above ; and the ratio decidendi is expressly that a profes- 
 sional agent shall not take advantage of his own ignorance. There 
 was also evidence and a finding of actual fraud.] 
 
 19. When consent to an agreement is caused by coercion, undue 
 
 influence, fraud or misrepresentation, the agreement is a 
 contract voidable at the option of the party whose consent 
 was so caused. 
 A party to a contract, whose consent was caused by fraud 
 or misrepresentation, may, if he thinks fit, insist that the 
 contract shall be performed, and that he shall be put in 
 the i^osition in which he would have been if the represen- 
 tations made had been true. 
 Exception. — If such consent was caused by misrepresentation, or 
 by silence fraudulent within the meaning of section seventeen, the 
 contract, nevertheless, is not voidable, if the party whose consent 
 ■was so caused had the means of discovering the truth with ordinary 
 diligence. 
 
 Explanation. — A fraud or misrepresentation which did not cause 
 the consent to a contract of the party on whom such fraud was 
 practised, or to whom such misrepresentation was made, does not 
 render a contract voidable. 
 
 20. Where both parties to an agreement are under a mistake as to 
 
 a matter of fact essential to the agreement, the agreement 
 
 is void. 
 Explanation. — An erroneous opinion as to the value of the thing 
 which forms the subject-matter of the agreement is not to be deemed 
 a mistake as to a matter of fact. 
 
 21. A contract is not voidable because it was caused by a mistake 
 as to any law in force in British India ; but a mistake as to a law 
 not in force in British India has the same effect as a mistake of 
 fact. 
 
 22. A contract is not voidable merely because it was caused by 
 one of the parties to it being under a mistake as to a matter of fact. 
 
 Nothing is said as to the thnc within which a voidable contract
 
 APPENDIX (NOTEP). 70'3 
 
 must be lesciiuleci ; the obligation to restore any advantage received 
 under the contract is declared in ss. 64, 65; but it does not ajjpcar 
 what is to happen if restitution is impossible ; as to goods obtained 
 under a voidable contract, the title of " a third person who before 
 the contract is rescinded buj'S them in good faith of the person in 
 possession " is secured by s. 108, exception 3, " unless the circum- 
 stances which render the contract voidable amounted to an offence 
 committed by the person in possession or those whom he represents," 
 a limitation which appears to be new ; but no general principle is 
 laid down as to rights of third persons intervening. S. 66 provides 
 that " the rescission of a voidable contract may be communicated 
 or revoked in the same manner, and subject to the same rules, as 
 apply to the commu.nication or revocation of a proposal." 
 
 Note P. (p. 579). 
 Foreign laivs on undue influence and allied suljecfs. 
 
 French jurisprudence has sometimes been cited in our Courts as French 
 affording useful analogies in cases where it was sought to set aside authorities 
 gifts on the ground of undue influence, especially spiritual influence. ^^^°^'® 
 (CEuvres d'Aguesseau, 1. 284, 5. 514, ed. 1819 ; Lyo7i v. Home, 6 Eq. tion. 
 571.) Without denying the instructiveness of the comparison, it 
 may be pointed out that these French cases proceeded on rather 
 different grounds. Charitable bequests in general were unfavour- 
 ably looked on as being "inofficious" towards the natural suc- 
 cessors. This principle is strongly brought out by D'Aguesseau 
 in the case of the Religieuses du Saint- Sacrement (CEuvres, vol. 1. 
 p. 295) :— 
 
 " Ces dispositions universclles, contraires aux droits du sang et 
 de la nature, qui tendent a frustrer les heritiers d'uue succession 
 legitime, sont en elles-memes pen favorables; non que ce seul 
 moyen soit peut-etre suffisant pour aneantir un tel legs: mais 
 lorsqu'il est soutenu par les cii'con stances du fait . . . lorsque 
 la donation est immense, qu'elle est excessive, qu'elle renferme 
 toute la succession . . . dans toutes ces circonstances la justice 
 s'est toujours elevee centre ces actes odieux ; elle apris les heritiers 
 sous sa protection ; elle a casse ces donations inofficieuses, exces- 
 sives et contraires a I'utilite publiquc." 
 
 In modern French practice a \nl\ may be set aside for captation Modem 
 or siigcjestion. But, as with us, the burden of proof is on the ob- '^^, °
 
 "04 
 
 APPENDIX. 
 
 jector to show tliat 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 do la suggestion et de 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 
 exj^ress 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 sj)iritual advisers. These apply alike to wills and 
 to gifts inter vivos. 
 
 Continen- 
 tal law 
 as to sales 
 at under- 
 value. 
 Civil law. 
 
 Old 
 
 French 
 
 law. 
 
 Code Civil. 
 
 The Continental enactments as to the effect of inadequacy of con- 
 sideration on a sale are derived from the rule of Eoman law, namely 
 that a sale for less than half the true value may be set aside in favour 
 of the seller unless the purchaser elects to make up the deficiency in 
 the purchase-money: Cod. 4. 44. de resc. vend. 2. "Eem maioris 
 pretii si tu vel pater tuus minoris j^retii distraxerit, humanum est ut 
 vel pretium te restituente emptoribus f undum venditum recipias, vel, 
 si emptor elegerit, quod deest iusto pretio recipias. Minus autem 
 pretium esse videtur, si nee dimidia pars veri pretii soluta sit." A 
 less undervalue was not of itself a sufficient ground : C. eod. tit. 8, 
 15. The old French law adhered to this rule : Pothier, Obi. § 133. 
 ' ' On estime communement enorme la lesion qui excede la moitie du 
 juste prix," id. Contr. de Vente, § 330, sqq. Pothier however goes 
 on to say that this does not apply to sales of reversionary interests 
 (contrat de vente de droits successifs) nor to other speciilative con- 
 tracts (contrats aleatoires), on account of the difficulty of fixing the 
 true value ; nor to sales of moveable property : cp. id. de Vente, 
 § 341. Thus the rule and the exception, as touching immoveable 
 property, were just the reverse of our own law as it stood before 
 1868. The modern French code fixes the undervalue for which a 
 sale (of immoveable property only) may be set aside at 7-12ths. It 
 adds this impoi'tant limitation, that a general presumption of 
 undervalue must be raised by the circumstances alleged on behalf 
 of the seller before evidence of the actual existence and amount of 
 the inadequacy can be admitted. There are also certain precautions 
 as to the kind of proof to bo allowed. If undervalue to the pre- 
 scribed extent is established the buyer has the option of submitting 
 to a rescission of the sale or paying up tlio dili'orcncc. (Code Civ. 
 ]G74-lG8y.) Nothing is said about sales of reversionary interests, 
 but it has been decided in accordance with the older law that the 
 section does not apply to them : Codes Annotes, 1. 798. " Ne sont
 
 UNDERVALUE IX FOREIGN LAW. 705 
 
 pas sujettes a la rescision pour lesion les ventes suivantes .... 
 \_infer alia'] La vente de droits successifs, encore qu'elle soit faite 
 a un etranger." And the jjro vision applies in favour of the seller 
 only (art. 1683). Any waiver of the seller's possible rights on this 
 score, however express, is inoperative (1674). There are exceptional 
 provisions for the case of " partage fait par I'ascendant " (1079) and 
 in favour of minors (1305, sqq.). 
 
 The provisions of the Italian Code are in substance the same as Italian 
 those of the Code Napoleon (Codice Civile, 1529-1537). Code. 
 
 The provisions of the Prussian Code — Allgem. Landrccht, part I. Prussian 
 Tit. II. §§ 58, 59 ("Von der Verletzung iiber die Half te ")— are Code, 
 substantially as follows. 
 
 The objection that the purchase-money is disproportionate to the 
 value of the thing sold does not of itself suffice to avoid the con- 
 tract. 
 
 " But if the disproportion is so great that the purchase-money 
 exceeds double the value of the thing sold, then this raises a legal 
 presumption (rechtliche Vermuthung), of which the buyer may take 
 advantage, of an error such as to avoid the contract." 
 
 The biiyer may by his contract waive the benefit of these provi- 
 sions (§ Go) ; and the seller cannot in any case dis^Dute the contract 
 on the ground of undervalue. 
 
 The reason of this appears to be that the judicial presumption is 
 not of fraud, but of error, and that the vendor cannot be jn-esumed 
 to be in error as to the value of his own property. 
 
 The Austrian Code (§§ 934, 935), following the extended inter- Austrian 
 pretation of the Eoman rule sanctioned by the j)revailing modern Code, 
 opinion in Germany, see Vangerow, Pand. § 611 (3.326), enacts that 
 inadequacy of consideration to the extent of more than one-half in 
 any bilateral contract gives the party injured a right to call upon 
 the other to make up the deficiency or rescind the contract at that 
 other's ojition. This right may be waived beforehand, and the rule 
 does not apply to judicial sales by auction. 
 
 Thus the French Code follows the rule of the Eoman law, giving Observa- 
 the remedy to the seller only, but adds a qualifying rule of evidence tions and 
 which limits the remedy to cases where there is some ground of ^ ^ ' 
 
 suspicion besides the undervalue itself. The Prussian Code reverses 
 the civil law by giving the remedy only to the buyer, and the 
 Austrian Code extends it to both parties, and to every kind of con- 
 tract for valuable consideration. These discrepancies seem to favour 
 the conclusion that the course our own law has always taken with 
 respect to property in possession, and now takes (since the Act 31 
 Vict. c. 4) with respect to property in reversion, is on the whole the 
 wisest. It is worth while to observe that the Civil Code of Lower 
 P. z z
 
 706 
 
 APPENDIX. 
 
 Canada has altered th.e law of that province in the same direction, 
 and declares without exception that persons of full age "are not 
 entitled to relief from their contracts for cause of lesion only " 
 (§ 1012). On the other hand the question was considered in framing 
 the Italian Code, and the rule of the civil law was deliberately 
 adhered to. (Mazzoni, Diritto Civile Italiano, 3.357.) 
 
 The different enactments we have mentioned may be thus re- 
 capitulated : — 
 
 Nature of property. 
 Moveable or In possession 
 
 immoveable. or reversion. 
 
 Extent of 
 inadequacy 
 of considera- 
 tion giving 
 right of re- 
 scission. 
 
 Eno-Hsh Law. No distinction . 
 
 ( In possession. 
 ( In reversion. 
 
 French Code 
 and decisions 
 thereon (fol- 
 lowed by 
 ItaUan Code). 
 
 Prussian Code. 
 Austrian Code. 
 
 Immoveable 
 only. 
 
 None. 
 (Before 1868) 
 
 Any. 
 (Since 1868) 
 None. 
 Inpossession. 7-12ths 
 
 (coupled with 
 cu'cumstances 
 of presumx)- 
 tion) . 
 
 None. 
 
 (^In reversion. 
 
 To which 
 party. 
 
 Seller. 
 
 Seller. 
 
 No distinction. 
 No distinction. 
 
 Over 1-2. 
 Over 1-2. 
 
 Buyer. 
 Either party 
 in any con- 
 tract for 
 valuable 
 considera- 
 tion.
 
 INDEX. 
 
 ACCEPTANCE : 
 
 of proposal, general but not universal form of agi-eement, 5. 
 
 express or tacit, 9. 
 
 by performing conditions of proposal, 12. 
 
 when in time, 24 . 
 
 double, of same proposal, 28. 
 
 must be communicated, 31. 
 
 when the contract is made by correspondence : difficulties of the 
 
 subject, 31. 
 theories in English authorities, 33. 
 by post, effectual, though never delivered, 35. 
 will not relate back to date of proposal, 37. 
 must be unqualified, 38. 
 examples of insufficient acceptance, 39. 
 
 of sufficient acceptance, 40. 
 with immaterial or ambiguous addition, 40. 
 by conduct as well as by words, must be certain, 46. 
 by receiving document with special conditions, 46. 
 of misunderstood proposal, eifect of, 432, 434, 435. 
 
 ACCIDENT : destroying subject-matter of contract, effect of, 362, 367, 
 
 ACCOUNT : action of, 141. 
 
 ACKNOWLEDGMENT of debt barred by Statute of Limitation, 601. 
 ^ee Ldhtation. 
 
 ACQUIESCENCE : 
 
 cannot exist without knowledge, 399. 
 as a bar to rescinding contract, 548. 
 lapse of tinae as evidence of, 548, 649. 
 in cases of undue influence, 595. 
 may work estoppel in equity, 569. 
 
 "ACT OF GrOD " : meaning of : no general definition possible, 360. 
 
 z z 2
 
 708 INDEX. 
 
 ADVEETISEMENT : 
 
 contract by, 12, sqq. 
 
 such contracts not exempt from Statute of Frauds, 22. 
 
 AGENCY : 
 
 general theory of, 50, 212. 
 
 positions of actual or professed agent as regards principal, 95. 
 
 contracts made by agents, 95, sqq. 
 
 contract by authorized agent known to be such, 97. 
 
 when agent is personally liable, 98. 
 
 how agent's liability may be excluded or limited when he contracts 
 in his own name, 99. 
 
 contract by authorized agent, but not known to be such, 100. 
 
 rights of undisclosed principal, 100. 
 
 X'ights of other contracting party, 101. 
 
 election to sue principal or agent, 102. 
 
 position of professed agent who has no authority : where a re- 
 sponsible principal is named, 103. 
 
 where no responsible principal is named, 107. 
 
 when professed agent may disclose himself as real principal, 108. 
 
 effect of death of principal on subsequent contracts of agent before 
 notice, 96. 
 
 sub- agent appointed without authority is not agent of principal, 
 426. 
 
 fraudulent misrepresentation or concealment of, 487. 
 
 AGENT : 
 
 authority of, its constitution and end, 96. 
 
 corporation liable for wrongs of, in course of employment, 115. 
 
 must not deal secretly on his own accoiint in business of agency, 
 
 243. 
 must not sell to or buy from himself, 244. 
 must not profit by his own negligence, 246. 
 must account to pi-incipal, notwithstanding collateral illegality in 
 
 the transaction, 333. 
 knowledge of, is knowledge of principal, 97, «., 101. 
 statements of, how far binding on principal, 530. 
 always liable for his own wrong, 533. 
 
 AGREEMENT : 
 
 defined, 1. 
 void, what, 2, 7. 
 consent, how expressed, 1. 
 analysis of, as accepted proposal, 4. 
 
 Sec Acceptance ; PEorosAL. 
 no contract unless the terms are certain, 42. 
 no cDntract whoro the promise is illusory, 44.
 
 INDEX. 709 
 
 AGREEMENT— cwj ^j«w^;. 
 
 of LxTNATic not so found by inquisition {ivhieh see) not void, but 
 voidable, 92. 
 
 Unlawful {which see), Ch. VI. 
 unlawful, the different classes of, 232. 
 
 See Unlawful Agreements. 
 against Public Policy {which see), 271, sqq. 
 
 See also Champerty ; Marriage ; Restraint of Trade. 
 Impossible, 350, sqq. 
 
 See Impossible Agreements. 
 conditions affecting validity of consent, 390. 
 
 See Mistake, &c. 
 where there may be an apparent, but no real consent and no con- 
 tract, 411. 
 election to adopt, where originally void, 450. 
 parol addition to or variation in terms of — effect as regards specific 
 
 performance, 468. 
 informal, execution of, may be good consideration or accord and 
 satisfaction, 610. 
 effect of part performance, 611. 
 
 ante-nuptial, how far made binding by post-nuptial 
 settlement, 613. 
 Savigny's definition of, considered, 635. 
 
 AGREEMENTS OF IMPERFECT OBLIGATION : 
 
 their nature and effects, 597, sqq. 
 
 conflict between le.vfori and lex contractus, 603, 606, 625. 
 
 general results as to, 634. 
 
 ALIEN : 
 
 wife of, when she can contract as feme sole, 82. 
 
 enemies, disabled from suing here but not from contracting", 95. 
 
 ANNUITY: agreement to give, charged on land, implies personal 
 covenant for repayment, 225. 
 
 APOTHECARIES : cannot recover charges unless properly qualified at 
 time of services, 623, 624, «. 
 
 ARBITRATION : 
 
 agreements for reference, now practically enforceable, 291. 
 right of action may be conditional on award, 292. 
 
 ARBITRATOR : can recover remuneration on express contract, 626. 
 
 ARTIFICIAL PERSON : 
 
 nature of, 110. 
 
 partnerships and other bodies treated as, by custom though not 
 
 bylaw, 112. 
 separate estate of married woman, analogous to, 649. 
 A»fl see Corporation.
 
 710 INDEX. 
 
 ASSIGNEE : 
 
 rights of, under contract, 206, sqq. 
 
 takes subject to equities, 211. 
 
 rule may be excluded by agreement, 213. 
 
 ASSIGNMENT : 
 
 of CoNTEACT {ivhich see), 188, sq(i. 
 of pensions, &c. void, 287. 
 
 ASSUMPSIT : action of, its introduction, 142. 
 ATTORNEYS AND SOLICITOES. See Solicitoe. 
 
 AUCTION : 
 
 sale by, formation of contract in, 13. 
 where sale without reserve, 15. 
 effect of misleading particulars at, 502. 
 employment of puffers at, 518. 
 
 AWARD : 
 
 whether stranger can be bound by, 193. 
 
 mistake in, can be rectified only by the Coui-t, 404. 
 
 BANKRUPTCY : 
 
 loan obtained by infant under pretence of full age, provable in, 78. 
 anomalous effects of, on contractual rights, 197. 
 secret agreements with particular creditors void, 240. 
 laws, attempts to evade, 255. 
 
 BARRISTER : 
 
 fees of, for advocacj' not recoverable from chent, 626. 
 
 for non-litigious business, qu., 627. 
 
 fees paid by client to solicitor, whether recoverable by counsel, 
 
 628. 
 judicial notice of counsel's fees in taxing costs, 629. 
 
 BILL OF EXCHANGE : 
 
 infant's, not void but voidable, 58. 
 is not an equitable assignment, 651, n. 
 is an \xnconditional order in writing, 157. 
 acceptance of, must be in writing and signed, 167. 
 cheque is a, 219. 
 
 And see Negotiable Instruments. 
 
 BILL OF LADING: 
 
 transfer of contract by indorsement of, 224. 
 
 is not properly negotiable, 227. 
 
 effect of misdescription of goods in, 492. 
 
 BILLS OF SALE, 163.
 
 INDEX. 711 
 
 BOND: 
 
 of infant, voidable, not void, 53. 
 
 with unlawful condition, void, 328. 
 
 is absolute if the condition is impossible at the time, but dis- 
 charged if it subsequently becomes impossible, 387. 
 
 with alternative conditions, where one impossible, 388. 
 
 of foreign government treated as negotiable instrument by English 
 law, 220. 
 
 BRACTON : liis theory of fundamental error, Note L. 
 
 BEOKERS : statutes affecting, 683. 
 
 CANADA (LOWER) : CivH Code of, 674. 
 CANCELLATION of instniments by courts of equity, 552. 
 CARGO : sale of, when previously lost, 371. 
 
 "CATCHING BARGAINS": 
 
 rules of equity as to, 684. 
 
 what are marks of, 585. 
 
 on what terms borrower relieved, 587. 
 
 CA USA : 
 
 in Roman law of contract, 135. 
 
 its relation to cause in modem French and consideration in English 
 law, 137, 673. 
 
 CHAMPERTY : 
 
 definition of, 293. 
 
 what amounts to, 295. 
 
 bargains to find means for litigation and share property recovered, 
 
 296. 
 solicitor cannot purchase subject-matter of the suit from his client, 
 
 297. 
 purchase of subject-matter of litigation, not in itself unlawful, 298. 
 statute of Henry VIII. against, 300. 
 proceedings in lunacy exceptional, 302. 
 not justified by kinship, 303. 
 rules against, whether applicable to agreements made abroad, 345. 
 
 CHARTER-PARTIES : 
 
 express exceptions in, 373. 
 conditions in, 489. 
 
 CHEQUE : 
 
 is a bill of exchange, 219. 
 
 effect of crossing with words "not negotiable," 221.
 
 712 INDEX. 
 
 CHILDREN : 
 
 right of, to enforce provisions for their benefit in settlements, 199. 
 custody of, agreements as to, 304. 
 
 CHOSE IN ACTION: 
 
 why formerly not assignable, 206. 
 
 early authorities on assignment of, Note G. 
 
 CIVIL DEATH, 
 
 meaning of, 81, «. 
 
 •wife of person civilly dead can sue alone, 81. 
 
 COERCION : 
 
 contracts entered into under, voidable in equity, 392. 
 
 money paid under, recoverable, though the transaction otherwiso 
 
 unlawful, 336. 
 and though circumstances do not amount to duress, 555. 
 
 COMPANIES ACT, 1862 : company under, cannot bind itself by contract 
 for purposes foreign to the memorandum of association, 127, 670. 
 
 COMPANY : 
 
 general powers of incorporated, 120. 
 
 limited by special purpose of incorporation, 124. 
 
 has prima facie power to mortgage its property, 661. 
 
 powers of directors, &c. limited by principles of partnership, 122. 
 
 rights of dissenting shareholders, 123. 
 
 how far third persons are bound to know limits of directors' au- 
 thority, 123, 664. 
 
 ratification of iiTegular transactions by assent of shareholders, 667. 
 
 under Act of 1862, incapable of contracting for purposes not 
 within memorandum of association, 127, 670. 
 
 when bound by negotiable instruments, 128, 130. 
 And see Coepoeation. 
 
 when bound by promoters' agreements, 192. 
 
 unincorporated, power of, to sue by public officer, 199. 
 
 transferable debentures, &c. issued by, 214. 
 
 purchase of shares in order to sue company or directors at one's 
 own risk is not maintenance, 300. 
 
 contract to take shares in, not void, but only voidable on ground 
 of error, &c., 428. 
 
 sale of shares in, avoided by petition for winding-up unknown to 
 parties, 442. 
 
 duty of directors, &c. to state facts truly in prospectus, 508. 
 
 duty of promoters to make full disclosure, 509. 
 
 transfer of shares invalid when directors' consent obtained by 
 fraud, 519. 
 
 when bound bv statements of directors. &c., 532.
 
 INDEX. 713 
 
 COMPANY— contimed. 
 
 statements of prospectus addressed only to original shareholders, 
 
 534. 
 repudiation of shares in, when too late, 433, n., 542, 546. 
 (winding-up of) secret agreement to delay proceedings void, 290. 
 
 COMPENSATION : 
 
 for misdescription on sale of land, 497. 
 purchaser can recover after completion, 498. 
 Sec Specific Pekfoemance. 
 
 COMPROMISE : 
 
 consideration for, 181. 
 
 of criminal proceedings when lawful, 289. 
 
 of civil proceedings, void when improperly procured, 290. 
 
 cannot be set aside for mistake or oversight as to particular points 
 
 of law, 407. 
 by law of France must be in writing, 671. 
 
 CONDITIONS : 
 
 special, on ticket, &c. , how far binding on party taking the docu- 
 ment, 46. 
 
 in restraint of marriage, 309. 
 
 to be performed by stranger, must be performed at obligor's peril 
 366. 
 
 impossible or necessary, 384. 
 
 treatment of impossible conditions in bonds, 386. 
 
 alternative conditions whei'e one becomes impossible, 388. 
 
 representations amounting to, their nature and eflPect, 486, 488. 
 
 CONDITIONS OF SALE : eflEect of, on right to compensation, 497. 
 
 CONFIRMATION : of infant's marriage settlement, 58. 
 And see Acquiescencb. 
 
 CONFLICT OF LAWS : 
 
 as to lawfulness of agreement, 339, sqq. 
 
 how far foreign law will be admitted to decide lawfulness of agree- 
 ment made abroad, 341. 
 effect of change of law, 346. 
 as to existence of remedy, 603, 606, 625. 
 
 CONSENT : 
 
 for legal agreement, requisites of, 2. 
 
 ways of declaring, 4. 
 
 to contract, conditions affecting validity of, 391. 
 
 CONSIDERATION : 
 
 general character of, 9, 167. 
 
 gradual formation of the doctrine, 168.
 
 714 INDEX. 
 
 CONSIDERATION— coH ;i;»^f^. 
 
 in contracts in writing, 169. 
 
 promises founded on moral duty, 169. 
 
 past consideration, 170. 
 
 adequacy not material, 172. 
 
 doubt as to contingent consideration, 174. 
 
 reciprocal promise as consideration, 175. 
 
 promise must be enforceable, 176. 
 
 how far promise to perfonn existing duty can be consideration, 
 
 177. 
 how far required for discharge of contracts, 179. 
 
 for variation of contracts, 180. 
 
 abandonment or forbearance of rights, 180. 
 
 forbearance must be definite and of a really disputed right, 182. 
 
 application of the doctrine in equity to contracts imder seal, 183. 
 
 specific performance of voluntary agreement not granted, 183. 
 
 external evidence of, 184. 
 
 illicit cohabitation, if future, an unlawful consideration ; if past, 
 no consideration, 262. 
 
 for agreement for separation, 266. 
 
 for agreement in partial restraint of trade, sufficient if of some 
 value, 315. 
 
 unlawful, makes whole agreement void, 321. 
 
 failure of, the true groimd for recovering back compulsory pay- 
 ments, 556. 
 
 inadequacy of, as evidence of fraud, 674. 
 
 execution of informal agreement as, 610. 
 
 forbearance to enforce racing debts in conventional forum, whether 
 a good, 686. 
 
 history of the doctrine of. Note F. 
 
 CONSTEUCTION : 
 
 of contract not altered by mistake of parties, 402. 
 
 rules of, common to law and equity : general intent prevails, 453. 
 
 what is a rule of, 456. 
 
 peculiar rules of, in equity, 461, sqq. 
 
 CONTRACT : 
 
 definition of, 1, 7. 
 
 voidable, what, 2, 8. 
 
 tacit, distinct from quasi-contract, 10. 
 
 by performance of conditions of public offer or advertisement, 
 
 12, sqq., 21. 
 legal theory of sxich contracts, 12. 
 difficulties raised by the modem cases, 17. 
 effect of Statute of Frauds on contracts by advertisement, 22. 
 >)y letter, when coTicluded, 35.
 
 INDEX. 715 
 
 CONTE ACT— f o;i till ml. 
 
 conclusion of, may bo postponed until execution of formal instru- 
 ment, 41. 
 
 capacity of parties to, 49, sqq. 
 
 See Infants ; Maeeied Women ; Lunatic ; Cokpoeation, 
 
 form of, 134. 
 
 by foreign laws, Note E. 
 
 See FoEMAL CoNTEACig. 
 
 procedure upon, in medireval English law, 139. 
 
 consideration for discharge or variation of, 179. 
 
 persons affected by, 186, sqq. 
 
 parties must be ascertained at tune of contract, 187, 190. 
 
 third persons not bound, 191. 
 
 third persons not entitled by the contract itself, 200. 
 
 thii-d person camiot sue at law on contract made for his benefit, 201 . 
 
 stranger cannot sue for damage by non-performance of, 201, n. 
 
 authorities in eqmty, 202. 
 
 attempts to enable a stranger to sue for convenience of parties, 204. 
 
 assignment of contract, 206. 
 
 under Judicature Act, by rules of equity, or by special statutes, 207. 
 
 rules of eqiutable assignment : notice to debtor, 209. 
 
 what is meant by assignments being subject to equities, 211. 
 
 assignment may be free from equities by agreement of parties, 213. 
 
 instruments may be made transferable, 214. 
 
 but not negotiable except by law merchant or statute, 216. 
 
 nature of, in partnership with transferable shares, 221. 
 
 in bill of lading, transferable by indorsement, 224, 227. 
 
 Unlawful, Ch. VI. 
 
 See Ageeement ; Unlawful Ageeements. 
 
 agreement to commit breach of, void, 237. 
 
 forbidden by statute, 678. 
 
 malum prohibittcin and malum in se, 253. 
 
 agreement may be not void though forbidden, 257. 
 
 in restraint of trade, 310. 
 
 to make disposition by will, good by English law, 309. 
 
 unconditional, not excused by performance being in fact impossible, 
 360. 
 
 when held conditional on performance being or remaining possible, 
 367, sqq. 
 
 construction of certain exceptions providing for accidents, 373. 
 
 dissolution of, by subsequent impossibility does not affect acquired 
 rights, 378. 
 
 See Impossible Ageeements. 
 
 effect of, not altered by mistaken construction acted on by party, 
 402. 
 
 ambiguous, construction acted upon by parties will be adopted, 403. 
 
 effect of including property in, by mistake, 430.
 
 716 IXDEX. 
 
 COlifTRACT— continued. 
 
 satisfaction by stranger, whether a bar to subsequent action upon, 
 
 423. 
 personal, cannot be assigned, 425. 
 
 in writing, cannot be varied by verbal agreement, 456. 
 but may be verbally waived in equity, qu. whether at law, 457, n. 
 apparent, where document not meant to operate as, 458. 
 when voidable for Miseepeesentation {which see), 485, sqq. 
 
 And see Rescission. 
 representations of intention, not amounting to, can have no effect, 
 
 482. 
 reqiiiring stamp, variation of, by subsequent unstamped agreement, 
 
 619. 
 
 CONVICTS : disabilities of, as to contracting, 94. 
 COPYHOLDER : infant, must pay fine, 64. 
 COPYRIGHT: assignments of, 164. 
 
 CORPORATION : 
 
 sole and aggregate, 112. 
 
 can act only by agent, 114. 
 
 cannot incur strictly personal liabilities, 114. 
 
 but may be liable ex delicto for acts of its agents, 115. 
 
 consequences of the distinction of it from its existing members, 
 117. 
 
 what is the presumption of common law as to general competence 
 of, 119. 
 
 powers of, how modified by rights of dissenting members, 121. 
 
 by considerations of public policy as to purposes of incorporation, 
 124. 
 
 and as to the interest of the public as investors, 126. 
 
 cannot bind itself by negotiable instruments, 128. 
 
 unless by special provisions or as a necessary part of its business, 
 129. 
 
 bound by estoppel, &c., 131. 
 
 contracts formerly required to be under seal, 146. 
 
 exception as to contracts in course of trade, 149. 
 
 in case of non- trading corporations as to contracts incidental to 
 purposes of incorporation, 151. 
 
 contracts of muni(;ipal corporations, 152. 
 
 appointments to oSices, 153. 
 
 may sue upon executed contract though not originally bound, 154. 
 
 liable on contract implied in law, 155. 
 
 statutoiy forms of contract, 156. 
 
 summary of law as to fonn of coii^orate contracts, 156. 
 
 whether seal equivalent to signature for making negotiable instru- 
 ments, 219.
 
 INDEX. 717 
 
 CORPORATION— co« /J« ucd. 
 
 modem authorities on powers of, Note D. 
 
 capacities incident to incorporation generally, 653. 
 
 created for special purposes: meaning of ultra vires, 658. 
 
 rights of dissenting shareholders to restrain action of, 663. 
 
 power of officers to bind by apparently regular acts, 664 . 
 
 how far iiTegular transactions may be ratified by assent of all 
 membei's, 667. 
 CORRESPONDENCE : 
 
 contract by, 31, sqq. 
 
 complete by posting acceptance, 35. 
 
 authorities on. Note B. 
 COUNSEL. See Bakeistek. 
 
 COVENANT : 
 
 relating to real projDerty, j)erson not party may take benefit of, 200. 
 
 when covenants run with land, 224. 
 
 difference between common law and equity, 227. 
 
 to pay money under unlawful agreement, void though distinct from 
 the original agreement, 327. 
 
 to exercise power by will, whether good, 310, n. 
 CREDITORS : agreements in fraud of, 238. 
 
 CUSTODY OF CHILDREN : agreements as to, how far valid, 304. 
 CUSTODY OF INFANTS' ACT, 305. 
 
 CUSTOM : 
 
 some contracts of infants binding by, 73. 
 modem, may add to the law merchant, 220. 
 CUSTOMS OF LONDON : 
 
 as to infant apprentice, 73. 
 
 as to married women trading alone, 82. 
 
 certain securities taken by chamberlain go to successor, 113. 
 
 as to leases, 142, n. 
 
 DEATH : 
 
 revocation of proposal by, 37. 
 
 of principal, revocation of agent's authority by, 96. 
 
 civil, 81. 
 DEBENTURES : transferable, rights of holder of, 214. 
 DEBT: 
 
 action of, in mediaeval English law, 140. 
 
 assignment of, 209. 
 DECEIT, ACTION OF : 
 
 may lie against corporation, 115. 
 
 what is gi'ound for, 515. 
 
 suits in former equity practice analogous to, 699.
 
 718 INDEX. 
 
 DEED: 
 
 peculiarity of promises made by, 6, 48. 
 of agent, principal not liable on, 98. 
 
 treated by early English writers as equivalent to Roman Stipula- 
 tion, 137. 
 ■why it cannot be written on -wood, 144. 
 ■whether -within Statute of Frauds, 163. 
 executed in eiTor as to its contents, not binding, 413. 
 executed in faroiu- of -wrong party, -whether void, 433. 
 
 DEPOSIT: recovery of. /Sfe Money Paid. 
 
 DIRECTORS : 
 
 of public companies, extent of their authority presumed to be 
 
 kno-wn, 122, 664. 
 po-wer of, to bind company by statements, 531. 
 ho-w far third persons are bound to kno-w whether particular acta 
 
 are authorized, 665. 
 
 DOMICIL : effect of law of, on validity of marriage, 250. 
 
 DRUXKEXXESS : 
 
 effect of, on capacity of contracting, same as of insanity, 49, 87. 
 contract of drunken man voidable, not void, 93. 
 
 DURESS : 
 
 what is, at common law, 553. 
 
 when it consists in threats the threat must be of something un- 
 lawful, 554. 
 recovery of money paid under compulsion, 555. 
 
 EASEMENTS : new kinds cannot be created, 228. 
 
 ECCLESIASTICAL LAW: influence of, on legal view of morality, 
 260. • 
 
 ELECTION : 
 
 to avoid contract made in infancy, 59. ^ 
 
 to charge principal or agent, 102. 
 to adopt agreement void for mistake, 450. 
 And sec Rescission. 
 
 * ' ENGAGEMENT. ' ' See Separate Estate. 
 
 EQUITIES : 
 
 undisclosed principal must take agent's contract subject to, 101. 
 assignment of contract subject to, 211. 
 but may be excluded by agreement of parties, 213. 
 attaching to negotiable instrument, 221.
 
 INDEX. 
 
 719 
 
 EQUITY : 
 
 treatment of infants' marriage settlements in, 5b. 
 
 no specific performance of infant's contract, 59, 62. 
 
 liability of infant in, on false representation of full age, 75. 
 
 adopts rule of law as to acts of lunatic, &c., 92. 
 
 ■what is good consideration in, 183. 
 
 treatment of voluntary covenants and imperfect gifts in, 183, 184. 
 
 who may be bound by or may enforce contract in, 192, 203. 
 
 assignment of contract in, 207. 
 
 notice to debtor required, 209. 
 
 assignee takes subject to "equities," 211. 
 
 assignment "free from equities," 213. 
 
 agrees with common law as to negotiable instruments, 218. 
 
 doctrine of, as to covenants running with land, 227. 
 
 will not protect copyi'ightof seditious or immoral publications, 269 
 
 rules of, as to custody of infants, 304. 
 
 doctrine of, as to imlawful agreements where parties not in pari 
 
 delicto, 337. 
 apparent difference from common law, as to repayment of money 
 
 paid iinder contract when fm-ther performance becomes impos- 
 sible, 379. 
 contracts voidable in, on ground of fraud, &c., 392. 
 rule of, as to piu'chase for value without notice, 398. 
 will not deprive purchaser for value of anything he has actually 
 
 got, 398, H. 
 agrees with law as to recovering back payments made by mistake, 
 
 409. 
 as to fundamental error avoiding agreement, 415. 
 decisions in, on sales of land where parcels included by mistake, 
 
 430. 
 on purchase of a party's own property by mistake, 444. 
 correction of obviovis mistakes in expression both at law and in 
 
 equity, 452. 
 agrees with law in excluding parol evidence on questions of pure 
 
 construction, 457. 
 oral waiver of written contract in, 457, n. 
 restricted construction of general words in, 461. 
 when time is of essence of contract in, 463. 
 relief against penalties in, 465. 
 admission of oral evidence as defence against specific performance 
 
 of contract in wi'iting, 468. 
 
 Rectification of instruments in {which see), 470, sqq. 
 supposed doctrine of, as to effect of "representations," 481, sqq. 
 agrees with law as to creditor's duty to surety, 493. 
 rules of, as to specific performance and compensation on sales of 
 
 land, 496, sqq. 
 suits analogous to action of deceit in, 516.
 
 720 INDEX. 
 
 BQJJITY— continued. 
 
 ■ former difference of, from law as to sales by auction, 518. 
 rules of, as to loss of remedies by acquiescence. 548. 
 jurisdiction of, to cancel instruments, 552. 
 doctrine of, as to undue influence, 556, s/jq. 
 
 as to voluntary settlements generally, 564. 
 
 as to supposed recxuirement of equality, 575. 
 
 as to refusing specific performance on ground of undervalue, 
 
 577. 
 as to "expectant heirs," 580. 
 as to " catching bargains, " 584. 
 as to part performance of informal agreement, 611. 
 as to estoppel by representation or acquiescence, 612, 615. 
 liabilities in, incidentally recognized at common law, 633. 
 
 ESTOPPEL : 
 
 corporations bound by, 131. 
 
 of holder of instriiment dealing with it as negotiable, 220. 
 
 of party who has induced a fundamental error by misrepresentation, 
 
 448. 
 of one party to instrument who acts as other's agent in preparing 
 
 it, 475. 
 by negligence, whether applicable to deeds, 414, «. 
 statements binding by way of, 482, 615. 
 
 EVIDENCE : 
 
 extrinsic, always admissible to show illegality of agreement, 328. 
 subsequent conduct of parties may be evidence of original unlawful 
 
 intention, 329. 
 rules of, distinguished from rules of construction, 456. 
 parol, not admitted to vary written contract, 456. 
 of oral variation, admitted as defence to specific performance of 
 
 WTitten agreement, but not to obtain perf oraiance of agreement 
 
 as varied, 468. 
 oral, inadmissible to rectify instrument where there is previous 
 
 agreement in writing, 471. 
 but admissible, if imcoutradicted, where there is no previous 
 
 written agreement, 472. 
 
 EXCISE : statutes regulating trades, &c., subject to laws, 683. 
 
 EXECUTORS : 
 
 general right and liability of, on contracts of testator, 191, «., 206. 
 cannot sue or be sued on contracts of personal service, 189, 368, 374. 
 or on contract to many, 377, n. 
 
 EXPECTANCY : sale of ; not unlawful, 302.
 
 INDEX. 721 
 
 EXPECTANT HEIRS : protection of, by courts of equity, 580. 
 
 FIDUCIARY RELATION : 
 
 between contracting parties, cfPect of, 558. 
 instances of, 559, 569. 
 
 FORBEARANCE TO SUE: as con8icIcration for promise, 181. 
 
 FOREIGN LAW : 
 
 foreign revenue laws said to be disregarded, 281. 
 
 as to stamps, effect of, 283. 
 
 agreements laAV'ful by, but not by law of forum, treatment of, 340. 
 
 subsequent proliibition by, deemed to make perfomiance of con- 
 tract not unlawful but impossible, 346. 
 
 contract rendered impossible of performance by, not discharged, 
 362. 
 
 as to form of contract. Note E. 
 
 on undue influence, &c., Note P. 
 And sec Conflict of Laws. 
 
 FORFEITURE : relief against, in equity, 466. 
 
 FORMAL CONTRACTS : 
 
 their importance in ancient laAV, 133. 
 
 position of formal and informal contracts in Roman law, 134, 
 
 in old English law, 138. 
 
 requirements of form now the exception, 145. 
 
 contracts of record, 145. 
 
 cases where form specially required, 145, sjq. 
 
 foreigii laws as to, Note E. 
 
 iSee CoBPOEATiONS ; Feauds (Statute of). 
 
 FRANCE : law of, as to champerty, 345, 
 
 FRAUD : 
 
 of agent, corporation liable for, 115, 531. 
 on third party, makes agreement void, 238, 241. 
 on creditors in compositions, kc, 238. 
 settlements in "fraud of marital right," 247. 
 
 dissimulation of unlawful purpose by one party to contract is, 336. 
 lax use of the tenu in Chancery, 480. 
 
 delivery of goods to wrong person obtained by, j)asses no pro- 
 perty, 420, )i., 545. 
 how distinguished from misrepresentation, 511. 
 passive acquiescence in self-deception of other party is not, 514. 
 what is fraudulent representation or concealment, 515. 
 silence when equivalent to falsehood, 516. 
 reckless assertions, 516. 
 negligent ignorance, 517. 
 
 P. 3 .\
 
 799 
 
 INDEX. 
 
 'F'RAlJI>—co)i(inued. 
 
 special doctrine as to sales by auction, 518. 
 
 marriage not avoided by, 519. 
 transactions voidable when consent of third person obtained by, 519. 
 rules as to rescinding contract for, how far the same as for simple 
 
 misrepresentation, 521. 
 contract incidental to a fraud is itself fraudulent, 528. 
 unfounded charges of, visited with costs, 505, 551. 
 And see Rescission. 
 
 FRAUDS, STATUTE OF : 
 
 contracts by advertisement not exempt from, 22. 
 
 as to special promise by executor, 157. 
 
 as to guaranties, 158. 
 
 as to agreements in consideration of marriage, 159. 
 
 as to interests in land, 160. 
 
 as to agreements not to be performed within a year, 160. 
 
 as to the note or memorandum, 161. 
 
 effect of note signed by one party only, 8. 
 
 whether applicable to deeds, 163. 
 
 foreign laws analogoiis to, NoteE. 
 
 on assigmnent of trust, 207. 
 
 effect of, where writing does not represent the real agreement, 469, 
 
 informal agreements within s. 4 not void: otherwise as to s. 17, 
 
 606. 
 effects of informal agreements, 608. 
 
 relation of, to equitable doctrine of part performance, 612. 
 ante-nuptial agreements confirmed by post-nuptial writing, 613. 
 
 FRAUDULENT PREFERENCE : agreements with particular credi- 
 tors by way of, 238, 239. 
 
 GAMING : 
 
 securities for money won at, 259. 
 
 treatment of gaming debts contracted abroad and not unlawful 
 l)y local law, 343. 
 
 GAVELKIND : conveyance by infant tenant in, 73. 
 
 GENERAL "WORDS : restrained by context or by intention appearing 
 from external evidence, 461. 
 
 GERMAN COMMERCIAL CODE : 
 
 on formation of contracts, 643. 
 
 exempts commercial contracts from requirements of form, 672. 
 
 extends rule of market overt, 397, ». 
 
 GIFT: 
 
 imperfect, not aided in equity, 181. 
 acceptance of, as loan, effect of, 119.
 
 ixDKX. 723 
 
 GOODS : 
 
 order for delivery of may be assignable free from equities, bixt 
 
 caimot be negotiable, 220, v. 
 contract cannot nua with, 224. 
 effect of misdescription of, in bill of lading, 492. 
 delivery of, to wrong person by mistake or fraud docs not pass 
 
 property, 545. 
 And ncc Sale of Goods. 
 
 GUARANTY : 
 
 within Statute of Frauds, 158. 
 
 voidable for misrepresentation or dissimulation to surety, 493. 
 
 HORSES: sale of , in market overt, 164. 
 
 HUSBAND AND WIFE. See Maeeied Women ; Sepaeate Estate ; 
 Separate Peopeety ; Sepaeation Deeds ; Custody of Childeex. 
 
 IGNORANCE : 
 
 of law, may be matei'ial as excluding specific unlawful intention, 
 
 330, 347. 
 does not in general exclude civil liability, 395. 
 reckless or negligent, carries responsibilities of Icnowledge, 517. 
 
 See also Mistake. 
 
 IGXOItAXTIA iriilS : meaning of, explained by Lord Westbury, 
 445, 
 
 ILLEGALITY : alleged, of contracts by companies tending to defeat 
 purposes of incorporation, 125. 
 And see Unlawful Ageeements. 
 
 IMMORAL AGREEMENTS : 
 
 void ; what are such, and what is immoral consideration, 260. 
 agreement immoral iure gentium cannot be justified by any local 
 law, 340. 
 
 IMMORAL PUBLICATIONS : punishable by criminal law, and there- 
 fore no ground of civil rights, 269. 
 
 IMPOSSIBLE AGREEMENTS : 
 
 general statement of law as to, 350. 
 
 agreement impossible in itself void : what is meant by impossi- 
 bility for this purpose, 352, 
 
 "practical impossibility" not equivalent to absolute impossibility, 
 354. 
 
 repugnant promises, &c., 355, 
 
 3 A3
 
 724 INDEX. 
 
 IMPOSSIBLE AGREEMENTS— fo>i^i«?^«7. 
 
 promisor's not ha\'ing means of performance is not impossibility, 
 
 356. 
 warranty of contingent acts or events, 356. 
 agreement impossible in law, void, 357. 
 promisor excused when performance becomes impossible by law, 
 
 357. 
 performance being impossible in fact, no excuse in absolute con- 
 tract, 360. 
 impossibility by foreign law, no excuse, 362. 
 effect of accidents subsequent to contract : analogy of contract to 
 
 pay rent, when premises accidentally destroyed, 363. 
 exception of accidents not contemplated by contract, 366, sqq. 
 where performance depends on existence of specific thing, 367. 
 where subject-matter destroyed without fault on either side, 368. 
 state of things at date of agreement not contemplated by parties, 
 
 370. 
 sale of cargo lost at date of contract, 371. 
 construction of covenants in mining leases, 372. 
 express exceptions in commercial contracts, 373. 
 where perfoiTnance of services contracted for depends on life or 
 
 health of promisor, implied condition that life or health shall 
 
 continue, 374. 
 anomalous treatment of contract to many, 376. 
 impossibility caused by default of promisor, equivalent to breach 
 
 of contract, 379. 
 by default of promisee, discharges promisor, and he may recover 
 
 loss or rescind the contract, 380. 
 alternative contracts where one thing is or becomes impossible, 
 
 382, 
 conditional contracts where the condition is or becomes impossible, 
 
 384. 
 where condition of bond impossible, obligation is absolute, 387. 
 otherwise where the condition subsequently becomes impossible, 
 
 387. 
 alternative conditions in bonds where one is or becomes impossible, 
 
 388. 
 Indian Contract Act on impossible agreements. Note K. 
 
 INDIAN CONTRACT ACT : 
 
 its definitions of agreement, &c.. Note A. 
 
 on contracts of iicrsons of unsound mind, 38, 94. 
 
 on promises for past consideration, 171- 
 
 on discharge of contracts, 180. 
 
 on parties to contract by agent, 110. 
 
 (in knowledge of agent being knowledge of principal, 9", ». 
 
 makes wagf'vs void, 272, w.
 
 INDEX. 725 
 
 INDIAN CONTRACT KUYl—voidlnuvd. 
 
 provisions of, :is to unlawful agreements, Note I. 
 
 provisions of, us to impossible agreements, Note K. 
 
 does not adopt English ride of market overt, 397, ». 
 
 on material common mistake a\-oidiug agreement, 4-11. 
 
 on time being of essence of contract, 461. 
 
 abolishes distinction between penalty and liquidated damages, 
 
 467, n. 
 on distinction of mere silence from rej^resentation, olo, n. 
 on sales by auction, 518. 
 
 on responsibility of principal for fraud of agent, 531. 
 on inadequacy of consideration, 575. 
 on coercion, undue influence, fraud, misrepresentation and nus- 
 
 take, Note 0. 
 on rescission of voidable contracts, 703. 
 
 INFANTS : 
 
 generally cannot bind themselves by contract, 51. 
 
 general statement of the law, 51. 
 
 contracts of, voidable at common law : no rcid authority for hold- 
 ing them in any case void, 53. 
 
 bonds, 53. 
 
 trading contracts, 54. 
 
 contracts of service, 54. 
 
 leases, 55. 
 
 sales of land, 56. 
 
 partnership, 56. 
 
 marriage, 57. 
 
 marriage settlements, 57. 
 
 negotiable instruments and accounts stated, 58. 
 
 infant cannot have specific performance, 59. 
 
 at wdiat tune he may avoid his contracts, 59. 
 See Infants Relief Act. 
 
 liable on obligations incident to property ; leases and railway shares, 
 64. 
 
 liable when contract for his benefit, 66. 
 
 liable for necessaries, 67. 
 
 what are necessaries, how ascertained, 68. 
 
 liability for necessaries on shuple contract only, 7:^. 
 
 what contracts infants can make by custona or statute, 73. 
 
 not liable for wrong when the cause of action is substantially on a 
 contract, 74. 
 
 whether liable on contract implied in law, 76. 
 
 liable in equity for representing himself as of full age, 76. 
 
 but not to prejudice of subsequent valid contract, 78. 
 
 agreements between parents as to custody or education of, 301.
 
 726 INDEX. 
 
 INFANTS RELIEF ACT : 
 
 makes certain agreements of infants void, 60. 
 does not make ratification wholly inoperative, 61. 
 effect of section 1 . . 63. 
 
 effect since the Act of affirming agreement voidable at common 
 law, 630. 
 
 INSANITY. Sfc Lunatic. 
 
 INSURANCE : contract of, liberally construed in favour of true inten- 
 tion, 474. 
 
 INSURANCE (FIRE) : 
 
 contract of insurers to reinstate is unconditional after election 
 
 made, 360. 
 effect of, as between landlord and tenant, 364. 
 implies condition that property is correctly described, 492. 
 
 INSLTRANCE (LIFE) : no such duty of disclosure as in marine insur- 
 ance, 490. 
 
 INSURANCE (MARINE): 
 
 must be expressed in policy, 164. 
 
 seamen's wages not insurable at common law, 306. 
 
 where voyage illegal to knowledge of owner, void, 324. 
 
 voidable for material misrepresentation or non-disclosure, 489. 
 
 stamped policy required by statute, 616. 
 
 the " slip" nevertheless recognized for collateral purposes, 617. 
 
 the rights of the parties dctennined at the date of the slip, 618. 
 
 statutoiy provisions as to, 683. 
 
 imOWLEDGE : 
 
 how far material on question of unlawfulness of agreement, 348. 
 means of, as affecting right to rescind contract for misrepresenta- 
 tion, 525. 
 
 LAND: 
 
 Statute of Frauds as to sale of interest in, 160. 
 M'hat covenants run with, 224. 
 ^Ind sec Sale of Land. 
 
 LANDLORD AND TENANT : 
 
 covenants running with tenancy or i"evcrsion, 224. 
 
 lessor cannot resimre possession actually delivered on disco'N'cring 
 
 unlawfid purpose or fraud of Icsseo, 323, 513. 
 but may rescind if possession has not been delivered, sciiihlc, 324. 
 i'cnt payable though premises accidentally destroyed, 363. 
 lessor is not bound to inform lessee of state of premises, 506. 
 statutes affecting contracts between, 684.
 
 INDKX. i'2l 
 
 LAW MERCHANT : 
 
 peculiarities of, as to ueyotiable insti'umcnt>, 217. 
 not invariable, 220. 
 
 LEASE : 
 
 of infant at common law, voidable, 55. 
 
 statutory powers of infants to renew and make, 73. 
 
 covenants in, when they run with land, 224. 
 
 Statute of Frauds as to, ICO. 
 
 of tenements for unlawful purpose, no action on covenants, 323. 
 
 for lives, effect of contract for sale of, 446. 
 
 ZEX LOCI: 
 
 marriage of domiciled British subjects wherever celebrated, go- 
 verned by English law, 250. 
 
 requirement of stamj), how treated in foreign coiu't, 283. 
 
 by what local law the lawfulness of an agreement is determined, 
 339. 
 
 LIMITATION, STATUTES OF: 
 
 promise or aclaiowledgment by married woman cannot re\'ivo 
 barred debt, 80. 
 
 promise to pay debt barred by, 165. 
 
 debts not extinguished, 599. 
 
 money paid by debtor -^athout particular dii-ections may be appro- 
 priated to satisfy barred debt, 600. 
 
 executor may j)ay barred debt of testator, 600. 
 
 barred debt cannot be set off, 600. 
 
 but statute must be pleaded, 600. 
 
 right of action restored by subsequent acknowledgement, GOl. 
 
 acknowledg-ment operates as new promise in case under statute of 
 James, 601. 
 
 otherwise of specialty debt under stat. of WiUiani IV., 602. 
 
 applied according to lex fori, not hx contractus, 603. 
 
 LIQUIDATED DAMAGES ; distinction of, from penalty, 467. 
 
 LONDON : 
 
 custom of, as to infant apprentice, 73. 
 as to married women trading alone, 82. 
 
 LUNATIC : 
 
 man'iage of , void, 87. 
 
 so found by inquisition, incapable of acts in the law, 87. 
 liable for necessaries, 87. 
 
 contracts in hicid intervals and contracts prior to lunacy good, 88. 
 contract of (not so found by inquisition), in general voidable not 
 void, 38, 93.
 
 728 INDEX. 
 
 lAJNATLC—coHthi tied. 
 
 history of different doctrines on the subject, 88 — 93. 
 contract of, why only voidable though he has no agreeing mind, 
 418. 
 
 MAINTENANCE : 
 
 attempts to oppose equitable assignments on ground of, 20G. 
 
 definition of ; it includes champerty, '293. 
 
 Avhat amounts to, 295. 
 
 .statute of Henry VIII. against buying pretended titles, 300. 
 
 what dealings are within the statute, 301. 
 
 no maintenance without unlawful intention, 302. 
 
 may be justified by kindred or affinity, 303. 
 
 MAJORITY : abuse of corporate powers by, 664. 
 
 MALUM FSOHIJilTrM and miluui in se, 253. 
 
 MARITAL RIGHT: settlements in fraud of , 247. 
 
 MARKET : 
 
 sale of horses at, overt, 164. 
 
 overt, provisions of German Code as to, 397, >i. 
 
 MARRIAGE : 
 
 of infants, 57. 
 
 promise of, infant may sue but is not liable on, 57. 
 of lunatics, void, 87. 
 agreements in consideration of, 159, 188. 
 within prohibited degrees, void, 249. 
 
 whether valid in England if invalid by law of party's domicil, 250. 
 of members of Royal Family, Act regulating, 250. 
 agreements in general restraint of, void, 307. 
 conditions in restraint of, 308. 
 
 I)olygamous, not recognised by English Divorce Court, 341. 
 illness unfitting for, does not avoid contract to marry, 376. 
 contract to marry not nherrimcejidei, 510. 
 not rendered invalid by fraud, 511, 519. 
 
 infomial agi-eements in consideration of, how far made valid by 
 post-nuptial settlement, 613. 
 
 MARRIED WOMEN : 
 
 at common law cannot contract, 70. 
 
 acquisition of things in action by, 79. 
 
 renewed promise by, cannot revive barred debt, SO. 
 
 exceptions to incapacity : (picen consort, 81. 
 
 wife of person civilly dead, 8 1 . 
 
 ,, of alien who has never been in England, 82. 
 custom of London as to sole trader, 82. 
 effect of Act of 1882 tliereon, 83, n.
 
 INDEX. 729 
 
 MARRIED W01Sli::^—coiituuui/. 
 
 exceptioual contracts with husbaud ais tu separation, 83. 
 statutory exceptions, judicial separation, &c., 83. 
 equitable doctrine of separate estate [which sec), 84. 
 Married Women's Property Act, 1882 . . 85. 
 as to debts contracted during coverture, fja., 86. 
 settlements of, in fraud of marital right, 247. 
 interests of, may bo bound by equitable estoppel, 615. 
 And see Separate Estate and Sepaeate PKorEKTY. 
 
 MAXIMS : 
 
 alteri stipuluri nemo potest, 673. 
 
 in pai'i delicto potior est condicio defendeutis, 332. 
 
 locus regit actum, 346. 
 
 uon videntvu" qui errant consentire, 393. 
 
 nulla voluntas eiTantis est, 399. 
 
 ignorantia iuris liaud excusat, 445. 
 
 mala graramatica non vitiat chartam, 453. 
 
 expressio unius est exclusio alterius, 455. 
 
 verba accipiuntiu- fortius contra proferentem, 501. 
 
 MEDICAL PRACTITIONERS : 
 
 I'egulatious of Medical Act as to thcii- right of remuneration, G23. 
 conditions precedent to recovering charges, 625. 
 presumption of influence in gifts, &c., from patients, 571. 
 
 MINES : construction of unqualified covenants to work, 372. 
 
 MISREPRESENTATION : 
 
 producing fundamental error, effect of, 448. 
 
 fraudulent or non-fraudulent, 479. 
 
 non-fraudulent, conditions under which it can affect validity of 
 
 contract, 481, 485. 
 distinction of it from mere nou-disclosurc, 495, 526. 
 special rules as to, in contracts of insvirance, 489. 
 in contract of siu'etyshij), 493. 
 in contract for sale of land, 495. 
 
 rules of equity as to perfonuance with compensation, 496. 
 duty of vendor to describe property correctly, 502. 
 in family settlements, 507. 
 in partnership and contract to take shares, 507. 
 in contract to marry, 510. 
 when it is an actionable wrong, 515. 
 where i^arty misled has means of knowledge, 525. 
 immaterial, in cases of active representation, luiless he uses his 
 
 means and acts on his ot\ti judgment, 525. 
 rights of party misled, 521. 
 And sec Rescission.
 
 730 
 
 INDEX. 
 
 MISTAKE : 
 
 distinction of from Fraud, 391, 392. 
 
 in private law has not as sucli any universal consequences, 
 
 394. 
 does not as a rule avoid liability, 395. 
 certain exceptions to this for protection of persons acting under 
 
 judicial process, 396. 
 sometimes a condition of title : purchase for value without notice, 
 
 397. 
 does not as a rule alter existing rights of the party or of other 
 
 persons : instances of misdelivery of goods and payments to 
 
 wi'ong persons, 400. 
 mistake in construction by parties does not alter contract, 402. 
 special cases where it is of real importance, 404. 
 mistake of fact and of law, 405. 
 the distinction is really of limited application, 406. 
 cases of compromise, &c., 406. 
 the distinction does apply inflexibly to recovering back money paid 
 
 by mistake, 409. 
 and in equity as well as at law, 409. 
 mistake excluding tnxe consent, 411. 
 different kinds of fundamental error, 412. 
 as to nature of transaction, 413. 
 
 as to its legal character (as whether sale or gift), 419. 
 mistaken delivery of money, &c., passes no property, 420, )i. 
 as to person of the other i)arty, 420. 
 as to subject-matter of the contract, 427. 
 herein as to the specific thing, 429. 
 as to nature of company in which shares are taken, 432. 
 or as to kind, 433. 
 us to quantity or price, 434. 
 
 or other material attribute of subject-matter, 436. 
 when error must be common to avoid agreement, 438. 
 as to existence of siibject-matter, 441. 
 agreements to purchase or pay rent for property really one's own, 
 
 444. 
 where fundamental error produced by misrepresentation, 447. 
 rights and remedies of parties, where agreement void for funda- 
 mental error, 449. 
 election to adopt agreement, 450. 
 mistake in expression of true consent, 451, sqq. 
 correction of obvious mistakes by ordinary construction, 452. 
 restriction of general words, 454, 461. 
 in expression of contract, a bar to specific pnrfonnancc, 467. 
 Rectification of instruments on groimd of {tchkh sec), 470. 
 Bracton's treatment of fundamental ciTor, Note L.
 
 INDEX. 731 
 
 MONEY PAID : 
 
 by infant under voidable contract, cannot be recovered after con- 
 tract executed, 60. 
 
 under Unlawful AaEEEiiENT [which sec) when it can be recovered 
 back, 332, sqq. 
 
 in actual ignorance of fact though with means of knowledge, 
 recoverable, 409. 
 
 with knowledge of facts, though under mistake of law, not recover- 
 able (except mistaken payment by officer of covu-t), 410. 
 
 cannot be recovered back where former state of things caimot be 
 restored, 543. 
 
 under compulsion, recoverable, 555. 
 
 imder infoi-mal agreement within s. 4 of Statute of Frauds, not re- 
 coverable, 609. 
 
 for small debts within Tippling Act, not recoverable, 030. 
 
 MONEY RECEIVED : action for, lies against corporation, 155. 
 
 MORTGAGES : 
 
 treatment of, in equity, 466. 
 
 the Court will treat nominal sale as, if such is true intention, 466. 
 
 NECESSARIES : 
 
 liability of infant for, 67, sqc^. 
 
 the liability is on simple contract only, 72. 
 
 what arc, a question of mixed fact and law, 68. 
 
 existing supply how far material, 69. 
 
 apparent means of buyer not material, 70. 
 
 not confined to goods, 7 1 . 
 
 liability of lunatic for, 87. 
 
 NEGLIGENCE : 
 
 of agent, corporation answerable for as well as natiu'al person, 115. 
 
 estoppel by, extent of, 414 n. 
 
 agent must not profit by his o^\^l, 246. 
 
 does not excliide right to rescind for misrei^resentation, 525. 
 
 NEGOTIABLE INSTRUMENTS : 
 must be in -mriting, 157. 
 of infants, voidable, 58. 
 
 payable to treasiu-er, &c., of a society for time being, bad, 205. 
 peculiar qualities of, 217. 
 what can be admitted as, 219. 
 
 bonds of foreign government treated as such by EngUsh law, 220. 
 how they cease to be so, ?.21. 
 corporations m general cannot issue, 128. 
 in what oases they can, 130.
 
 732 
 
 INDEX. 
 
 NEGOTIABLE INSTRUMENTS— cow^i^wrr/. 
 
 principal bomid by acceptance of agent though not in principal's 
 
 name, 99. 
 the holder of, cannot make title through forged indorsement, 399. 
 signatiu'e of, in en-or as to nature of instrument, not biiiding, 414. 
 
 And see Bill of Exchange. 
 
 NOTICE : 
 
 assignee of married woman's separate property with, bound by 
 
 engagement affecting it, 6o0. 
 to debtor, of assignment of contract, 188, 209. 
 purchase for value without, 226, 397. 
 
 NOVATION : its nature explained, 193. 
 
 A^'UBUM FACTUM : 
 
 in Koman law, 136. 
 
 change in the meaning of the term in English use, 67G. 
 
 OFFENCE : 
 
 agreement to commit, void, 235. 
 compounding of, 288. 
 
 OFFER: &e Proposal. 
 
 OFFICES : 
 
 appointments to, by coi-porations must be under !^cal, 153. 
 sale of, unlawfiU, 286, 305. 
 
 FAlt DELICTUM: 
 
 doctrine of, 332. 
 
 qualifications of and exceptions to it, 333, 336. 
 
 PARCELS : mistake as to, in sales of land, 430. 
 
 PART PERFORMANCE : equitable doctrine of, 131, 611. 
 
 PARTIES : 
 
 to contract, rules as to, 187. 
 
 to action on contract made by agent, 95, nqq. 
 
 PARTNERSHIP : 
 
 contract of shareholder in company, a modified contract of, 121. 
 Bharcs in, transferable at common law, 221. 
 
 releaso in deed of dissolution cannot be disjiuted by party after 
 concern completely wound uj), 543. 
 
 PENALTIES : 
 
 imposition of, by statute, implies prohibition, 253. 
 relief in equity against, 465. 
 and liquidated damages, 460.
 
 IXDF.X. 7'V\ 
 
 PERSONAL CONTRACTS : 
 
 implied condition in, as to life or health of party continuing', 374. 
 not assignable, 188. 
 
 PHYSICIANS : 
 
 rights of, as to payment for sernccs at oommon law, G23. 
 under Medical Act, G2;5, G25. 
 
 POST OFFICE : whether common agent of parties in correspondence 
 by letter, 34, 401. 
 
 PRINCIPAL AND AGENT: 
 
 principal when liable on contracts made by agent, 97, sqq. 
 
 rights of undisclosed, 100. 
 right to countermand unexecuted authority, 335. 
 sub- agent not agent of principal, 426. 
 principal not liable if exclusive credit given to agent, 102. 
 
 agent's authority determined by death of principal, 9G. 
 
 when professed agent may declare himself as real principal, 
 108. 
 
 principal when answerable for representations of agent, 530. 
 agent always liable for his own wrong, 533. 
 And see Agency. 
 
 PROMISE : 
 
 definition of, 1 . 
 
 by advertisement or general annoimcement, nature and limits 
 of, 12. 
 
 by deed, binding without acceptance in English law, 6, 48. 
 
 illusory, 44. 
 
 inferred in fact or implied by law, 10. 
 
 founded on moral duty, not binding without valuable considera- 
 tion, 169. 
 
 to pay for past services rendered on request, 170, 
 
 too vague to be enforced, 176. 
 
 how far promise to perform existing duty can be consideration, 
 176, 178. 
 
 to several, whether one can sue on, 204. 
 See Acceptance ; Aqeeehent. 
 
 PROMISES: in same instrument, where some la-\vful and some not, 321. 
 
 PROMOTERS : 
 
 agreements of, when binding on company, 192. 
 fiduciary position of, as regards company, 560, >i. 
 statements of, may become statements of company, 532. 
 
 PROPOSAL : 
 
 as generally element of contract, 1,4. 
 express or tacit, 9.
 
 734 INDEX. 
 
 'PnO'POSAJL—eontiinicd. 
 
 distinguished from invitation of, 13. 
 
 addressed to all to whom it comes, 13. 
 
 when it may be revoked, 23. 
 
 conditions of, as to time, &c., 25. 
 
 revocation must be communicated, 26. 
 
 is revoked by death of proposer before acceptance, 37. 
 
 by Indian Act only if known to other party, 37. 
 
 PEOSECUTION : agreements to stifle, 288. 
 
 PEUSSIA : 
 
 Code of, as to form of contract, 672. 
 
 provisions of, as to undervalue, 705. 
 
 PUBLIC OrnCE: statutes against sale of, 681. 
 And see Offices. 
 
 PUBLIC POLICY : 
 
 corporate powers must not be used to defeat purposes of incorpora- 
 tion, 124. 
 
 doctruie of, instances of its application to corporate acts, 669. 
 
 tlio doctrine extended in order to discourage wagers, 271. 
 
 opinions in Egcrton v. Broioilow, and effect of the decision, 273. 
 
 rules not to be arbitrarily extended, 277. 
 
 trading -wdth enemies, 278. 
 
 aiding hostilities against friendly nations, 280. 
 
 as to foreign revenue laws, 281. 
 
 agreements for corrupt or improper influence, 283. 
 
 sale of offices, «S:c., 286. 
 
 compounding offences, 288. 
 
 agi'eoments for reference to arbitration, 291. 
 
 maintenance and champerty, 293, sqq. 
 
 agreements as to custody of children, 304. 
 
 as to agreements limiting freedom of individual action, 306. 
 
 agreements in restraint of marriage, 307. 
 
 agreements to influence testator, 309. 
 
 agreements in Restraint op Trade {which see), 310, sqq. 
 
 agreements against interests of State where sued upon cannot be 
 supported by any local law, 339, 345. 
 
 PUBLICATIONS: immoral, &c., cannot be ground of civil rights, 269. 
 
 QUASI-CONTRACTS : 
 
 distinguiHhed from tacit but real contracts, 10. 
 appear as fictitious contracts in English law, 11. 
 arc dealt with scparalcly in Indian Contract Act, 12.
 
 TNj)i:x. 7'3'j 
 
 RAILWAY COMPANY : 
 
 agreements for running- powers, &c., GoS. 
 liability of, as to correctness of time-table, 15. 
 purchase of shares in or promotion of, liy another railway com- 
 pany, 658, 659. 
 
 RATIFICATION : 
 
 of infant's contract : effect of Infants' Relief Act, 61, 62. 
 of in'egular acts by assent of shareholders, 123, 667. 
 of agent's acts, mixst be by one who might ha^-e been originally 
 bound, 107. 
 
 RECORD : 
 
 contracts of, 145. 
 
 RECTIFICATION OF INSTRUMENTS : 
 
 jurisdiction of the court in, 470, sqq. 
 oral evidence how far admissible, 472. 
 
 a common intention of all partitas different from the expressed in- 
 tention must be shown, 473. 
 proof of one party's intention will not do, 474. 
 possible excei:)tion where one party acts as other's agent, 475. 
 special rules as to settlements, 476. 
 at whose suit granted, 476. 
 
 option to rectify or set aside in certain cases, 477. 
 new conveyance not required, 478. 
 no jurisdiction to rectify wills, Note M. 
 
 RELEASE : 
 
 I'estricted construction of, in equity, 460. 
 
 in deed of dissolution, cannot be disputed by party after concern 
 completely wound up, 543. 
 
 REPRESENTATION : 
 
 of full age by infant, liability on, 75. 
 
 must be showoi to have misled the other party, 76. 
 
 of discoverture by married woman, 79. 
 
 of agent's authority must be of matter of fact, 106. 
 
 not formmg part of a contract, possible legal effects of, 481. 
 
 the supposed equitable doctrine of "making representations good," 
 481, 485, Note N. 
 
 amounting to warranty or condition, 487. 
 
 when silence is equivalent to, 514, 616. 
 
 responsibility ex dvHcto for false, 484. 
 
 what conditions it must satisfy to be relied on for rescinding con- 
 tract, 521, sqq. 
 
 it must genei'ally be of fact, 521, 
 
 not of mere motive or intention, 522.
 
 7'36 INDEX. 
 
 REPRESENTATION— f6« t in tied. 
 
 it must in fact have induced the contract, 524. 
 must be made by a party to the contract, 529. 
 of agent, when principal liable for, 530. 
 must be made as part of same transaction, 533. 
 
 REPUDIATION : See Shareholder. 
 
 RESCISSION : 
 
 right of, on discovering unlawful purpose of other contracting 
 
 party, 324. 
 but a completely executed transfer of property cannot be rescinded, 
 
 324. 
 of contract for misreiarcsentation, 521, sqq. 
 for fraud or misrepresentation, not allowed unless (in general) the 
 
 representation was of fact, 521. 
 and in fact induced the contract, 524. 
 and was part of same transaction, 533. 
 option to affirm or rescind contract for fraud, &c., 535. 
 election how determined, 537. 
 treating contract as subsisting, 537. 
 election to rescind must be communicated, 538. 
 what communication sufficient, 539. 
 by or against representatives, 541. 
 
 not allowed where former position cannot be restored, 541. 
 where party entitled to rescind has done acts of ownership, ttc, 
 
 542. 
 not allowed against purchasers for value, 544. 
 of contract to take shares too late after winding-up, 546. 
 must be within reasonable time, for length of time is evidence of 
 
 acqmescence, 547. 
 for undue influence, 594. 
 
 RESTRAINT OF TRADE : 
 
 agreements in unlimited restraint of trade ; void, 310. 
 
 limited restraints admitted, 312. 
 
 what conditions such agreements must satisfy, 315. 
 
 whether a limit in sjiace indispensable, 315. 
 
 table showing what restrictions have been held reasonable in recent 
 
 cases, 316. 
 distances how measured, 318. 
 contract to serve for life or for exclusive service may be good, but 
 
 must be mutual, 319. 
 
 REVENUE LAWS : treatment of foreign, 281, 282. 
 
 REVERSION, sale of : when rent or covenants run with, 224, 225. 
 Sec Sale of Reversion.
 
 INDEX. 737 
 
 REVOCATION : 
 
 of general offer, 17, 20. 
 
 of proposal, when in time, 23, sqq. 
 
 communication of, 26. 
 
 SALE : 
 
 of mere expectancy, valid by English law, otherwise by civil law, 
 302. 
 
 of futm-e specific product, contract discharged by failure of pro- 
 duce, 370. 
 
 SALE BY AUCTION : 
 
 when wan-anted wdthout reserve, 16. 
 
 voidable for employment of puffer, if without reserve, 518. 
 
 SALE OF GOODS : 
 
 to infant, not necessaries, void by Infants' Relief Act, 60. 
 Statute of Frauds as to, 161. 
 
 of goods for unlawful pui-pose, price not recoverable, 323. 
 wan-anty of title on, 429, n. 
 warranty or condition upon, 437. 
 by sample ; rule as to secret defects in sample, 449. 
 purchase by one not meaning to pay is fraud, 512. 
 fraudtilent, effect of, 537, 544. 
 
 distinction where delivery is obtained by false pretences without 
 any contract, 545. 
 
 SALE OF LAND : 
 
 by or to infant, voidable, 56. 
 Statute of Frauds as to, 160. 
 effect of mistake as to parcels, 430. 
 
 ,, price, 435, 
 
 misdescription of thing sold distinguished from fundamental error, 
 
 440. 
 mistaken piu-chase or tenancy of property really one's own, 444. 
 with option of, or agreement for repurchase, 466. 
 effect of misdescription on, 495. 
 specific performance with compensation, 497. 
 cases where compensation inapplicable, 499. 
 duty of vendor to give correct description, 502. 
 like duty of purchaser in sj)ecial circumstances, 503. 
 effect of special conditions as to title, 504. 
 non-disclosure of latent defect of title, 504. 
 by auction, employment of puffer at, 518. 
 And sec Specific PEEFOKiiANCE. 
 
 SALE OF OFFICES : unlawful, 286. 
 
 SALE OF REVERSION: 
 
 under old law, voidable for undervalue, 582. 
 the development of the doctrine by decisions, 583. 
 P. 3 H
 
 738 INDEX. 
 
 SALE OF EEVERSIOX— ro«i;/;i^^«?. 
 
 its abrogation by 31 Vict. c. 4.. 583. 
 
 by person in dependent position, present rule as to, 589. 
 SEAL : 
 
 necessity of, in early English law, 138. 
 
 misapplication of, 139. 
 
 necessity of, in contracts of corporations, 146, sqq. 
 
 companies, &c., required by statute to use their proper seal, 148. 
 
 corporation may use any seal at common law, 147, 654. 
 
 of corporation, whether equivalent to signatiu'o, 219. 
 
 SEAMEN : wages of, not insurable at common law, 306. 
 SEDITIOUS PUBLICATIONS : Sec Immoeal Publications. 
 SEPARATE ESTATE : 
 
 origin of separate use,. 646. 
 
 earher doctrmes as to power of binduig separate estate, 647. 
 
 rules as to "general engagements," 648. 
 
 specific performance against, 649. 
 
 eiiect of cessation of coverture on, 650. 
 
 whether liable for debts contracted before marriage, 650. 
 
 whether "engagement" must comply with ordmary forms of 
 contract, 651. 
 
 whether analogy of Statute of Limitation applies to clauns against, 
 80, 652. 
 
 whether liable on quasi-contracts, 652. 
 
 equitable doctruie of, Note C. 
 
 SEPARATE PROPERTY: 
 
 what is, by Act of 1882 . . 85. 
 
 married woman may bind herself and be made bankrupt in respect 
 
 of, 78, 85, 86. 
 contract made as to, binds after- acquired property, 86. 
 is liable for ante-nuptial debts, 86. 
 
 whether debts contracted during covertxu-e with respect to, become 
 personal debts on termination of coverture, 86. 
 And sec Married Women. 
 SEPARATION : judicial ; effect on wife's capacity of contracting, 84. 
 
 SEPARATION DEEDS: 
 
 agreements for, between husband and wife alone, 83. 
 
 when parties not lawfully married, proviso for reconciliation void, 
 
 264. 
 validity of, 264. 
 effect of, on special points, 267. 
 avoided by reconciliation, 204, 2G7. 
 agreement for future separation void, 268. 
 provisions for custody of cliildren in, 304. 
 SERVICE : infant's contract of, 66, 73.
 
 INDEX. 730 
 
 SETTLEMENTS : 
 
 " in fraud of marital right," 247. 
 reformation of, according- to previous articles, 475. 
 duty of fidl disclosure in negotiations for, 507. 
 post-nuptial, how far supported by informal ante-nuptial agree- 
 ment, 613. 
 
 And see Infants and Voluntaey Gift oe Settlement. 
 
 SHAREHOLDER : 
 
 infant may be, 56. 
 
 and is liable for calls if shares not disclaimed, 64. 
 
 right of, to restrain company from acts not warranted by its con- 
 stitution, 122, 663. 
 
 ratification by assent of, 123, 667. 
 
 cannot treat contract as void by reason of variance between pro- 
 spectus and mcmorandmn of association, 432. 
 
 right of, under Companies Act, 1867, s. 38. .510. 
 
 only original shareholders are entitled to rely on prospectus, 534. 
 
 cannot repudiate shares after acts of ownership, 537. 
 
 cancellation of shares on other grounds equivalent to repvidiation, 
 540. 
 
 cannot repudiate after change in constitution of company, 542. 
 
 cannot repudiate after commencement of winding-up, 546. 
 
 must be dihgent in repudiation, 550. 
 
 SHARES : 
 
 transfer of, 165, 222. 
 
 sale of, after winding-up, not enforceable, 442, 447. 
 
 error in numbers of, not material, 433. 
 
 SHIPS: transfer of, 164. 
 
 SIMONY : purchase of next presentation, 684. 
 
 SLAVERY: 
 
 American opinions as to effect of aboUtion of, on prior contracts, 
 
 270. 
 contract for sale of slaves in slave covmtry, not void hi England, 342. 
 statutes against slave trade, 685. 
 
 "SLIP : " in marine insurance, effect of, 165. 
 
 SOCIAL DUTY : whether agreement against, void, 306. 
 
 SOLICITOR : 
 
 what agreements with client are bad for champerty, 297. 
 
 purchase of subject-matter of suit, by, 297. 
 
 costs of uncertificated sohcitor not recoverable, 621. 
 
 how soon costs may be sued for, 622. 
 
 special agreement with client, 629. 
 
 statutes affecting, 685. 
 
 a b2
 
 740 INDEX. 
 
 SOLICITOR AND CLIENT (contracts between) : 
 
 how affected by the rules of law against champerty, 297, G85. 
 
 allowed by statute, 629, 568. 
 
 presumption of influence in contracts between, 566. 
 
 SOLICITORS' REMUNERATION ACT : as to agreements between 
 solicitor and client, 629. 
 
 SPECIFIC PERFORMANCE : 
 
 not granted at suit of infant, 59. 
 
 nor since Infants' Relief Act of any contract made during infancy, 
 
 62. 
 against married woman's separate estate, 649. 
 of contract by railway company to purchase land, 660. 
 refused against purchaser who bid for wrong lot, 430. 
 refused in certain cases where contract ambiguous or description 
 
 excusably misunderstood, 432. 
 refused where instrument sued on does not express the real agree- 
 ment, 467. 
 with compensation, on sale of land, 496. 
 
 at suit of either party where misdescription not substantial, 497. 
 at piu'chaser's option where substantial and capable of estimation, 
 
 497. 
 where misdescription substantial and not capable of estimation, 
 
 option only to rescind or to affirm unconditionally, 499. 
 when vendor can make good his description, 500. 
 whether it can be refused for undervalue alone, 576. 
 whether not enforceable where collateral representation not being a 
 
 term of the contract or amounting to a distinct contract has not 
 
 been fulfilled, 697. 
 
 SPIRITS : statutes affecting sale of, 685. 
 
 SPIRITUAL INFLUENCE : 
 
 its relation to undiie influence, 571. 
 treatment of, by French law. Note P. 
 
 STAMPS : 
 
 effect of foreign laws as to, 283. 
 
 mistampcd document when admissible as evidence, 619. 
 
 variation of contract by subsequent unstamped agreement, 619. 
 
 STATUTE OF FRAUDS. Sec Frauds, Statute of. 
 
 STATUTE OF LIMITATION. See Limitation, Statutes of. 
 
 STATUTES : 
 
 construction of prohibitory, 251, 253. 
 
 what is meant by jxJicy of, 252. 
 
 particular occupations, &c., regulated by. Note H. 
 
 "STIFLING PROSECUTION," 288.
 
 INDEX. 741 
 
 STIPULATION : in Roman la\\', 134. 
 
 STEANGER : 
 
 to contract, cannot sue on it, 20'1, 
 
 satisfaction of contract by, whether it bars action, 424. 
 
 SURETY : 
 
 when dischargx'd by subsequent dealings between creditor and 
 
 debtor, 241. 
 entitled to benefit of securities, 243. 
 discharged by misrepresentation or concealment on part of creditor, 
 
 493. 
 but creditor not bound to vokmteer information, 495. 
 
 " SURPRISE " : whether a ground of relief against contracts, 590. 
 
 SWISS FEDERAL CODE: on contract by correspondence, 644. 
 
 TALLIES : former use of, 144. 
 
 THIRD PARTIES : 
 
 cannot sue on contract, 200. 
 
 apparent exceptions to tliis rule, 202, sqq. 
 
 fraud on, vitiates contract, 237. 
 
 wrong to, not presumed, 240. 
 
 instrument not rectified against interests of, 474. 
 
 TIME: 
 
 when of essence of contract in equity, 463. 
 may be made so by express agreement, 463. 
 
 TIME-TABLE : effect of statement in, 15. 
 
 TIPPLING ACT : small debts for sph-its made not recoverable by, 630. 
 
 TRADE: 
 
 contracts of corporations in course of, need not be under seal, 149. 
 agreements in restraint of. See Restraint of Teade. 
 
 TRADE UNIONS : 
 
 agreement for strike not enforceable, 310. 
 
 but since Act of 1871, not punishable, 310, w. 
 
 certain agreements of, lawful but not enforceable, 631. 
 
 TRADING WITH ENEMIES : 
 
 without licence from crown, illegal, 278. 
 contracts dissolved or suspended by war, 279. 
 neutral trade with belligerents not imlawful, 281. 
 
 TRESPASS : agreement to commit, void, 237. 
 
 TRUSTEES : 
 
 notice of assignment to, 210. 
 
 must accoimt to cestuis que trust notwithstanding collateral ille- 
 gality, 334. 
 must be impartial as between cestuis que trust, 572.
 
 742 INDEX. 
 
 TRUST : 
 
 how far in the natiu-e of contract, 197. 
 
 assignment of, 207. 
 
 agreement to commit breach of, void, 237. 
 
 UNDEEVALUE : 
 
 does not itself avoid contract, but may be evidence of fraud, &c., 
 573. 
 
 whether specific performance can be refused for, 576. 
 
 treatment of in foreign law. Note P. 
 UNDUE INFLUENCE : 
 
 what is, 557, sqq. 
 
 presirmed from certain relations, 558. 
 
 burden of proof in such cases, 559. 
 
 presumption does not extend to wills, 560. 
 
 supposed general rule as to voluntary donations, 562. 
 
 volimtary settlements when set aside, 563. 
 
 influence once shown presumed to continue, 565. 
 
 purchases by solicitor from client, 566. 
 
 duty of persons in fiduciary relations, 566. 
 
 Indian Contract Act on duty of l^arty contracting in loco parentis, 
 567, n. 
 
 no presumption against " family aiTangements, " 568. 
 
 particular relations where influence presumed, 569. 
 
 relations analogous to parent and child, 569. 
 ,, ,, solicitor and client, 570. 
 
 spiritual influence, 571. 
 
 apart from fiduciary relation, 572. 
 
 undervalue, how far material, 573, sqq. 
 
 by foreign laws, 704. 
 
 protection of expectant heirs, &c., 579, sqq. 
 
 rules of equity as to " catching bargains," 684. 
 
 sales of reversionary interests by persons in dependent position, 589. 
 
 "surprise," &c., as evidence of, 590. 
 
 rescission of contract for, 594. 
 
 whether material if exerted by stranger to the contract, 595. 
 
 effect of confirmation or delay, 595. 
 
 doctrine of captation in French law. Note P. 
 UNLAWFUL AGREEMENTS : 
 
 general classification of, 232. 
 
 to commit offence, &c., 235. 
 
 to commit civil wrong, 237. 
 
 in fraud of creditors, 238. 
 
 for marriage within prohibited dcgi'ees, 249. 
 
 80 made by prohibitory statutes, 251. 
 
 agreements contrary to Public Policy [which set), 271. 
 
 general rules as to treatment of them, 319, sqq. 
 
 ■where promises arc independent, the lawful ones enforceable, 320.
 
 INDEX. 743 
 
 UNLAWFUL AGREEMENTS— co«<i«w(f. 
 
 unlawful consideration avoids whole agreement, 321. 
 
 where immediate object unlawful, agreement void, 322. 
 
 ulterior unlawful intention of both parties, or of one known to the 
 
 other, makes agreement void, 322. 
 effect of intended luihi'W'ful use of subject-matter of contract, 323. 
 innocent party may rescind on discovering unlawful intention of the 
 
 other, 324. 
 agreements void as part of unlawful scheme, though subsequent to 
 
 the unlawful act, 325. 
 secuinties subsequently given for papnent of money under unlawful 
 
 agreements, void, 328. 
 illegality may always be shown by extrinsic evidence, 329. 
 where immediate object not unlawful, unlawful intention must bo 
 
 shown to have existed at date of agreement, 329. 
 the parties' knowledge or ignorance of the law may be material for 
 
 this purpose, 330. 
 unlawful intention not to be presumed, 331. 
 when payments imder, can be recovered, 332. 
 laUe that i>arty in pari delicto cannot recover, 332. 
 collateral illegality does not affect duty of agents to account to 
 
 principals, 333. 
 money recoverable where agreement not executed, 335. 
 unless manifestly repugnant to justice or morality, 335. 
 where payment not voluntary, or parties otherwise not in pari delicto, 
 
 336. 
 conflict of laws as to lavrfulness : what local law governs, 339. 
 contract for sale of slaves made and to be performed in a slave state 
 
 is recognized in English courts, 342. 
 conflict of laws in time : contract dissolved by performance becom- 
 ing unlawful, 34 G. 
 whether, in absence of original unlawful intention, an agreement 
 
 may become valid by performance becoming lawful, 347. 
 statutes forbidding or regulating particidar contracts collected, 
 
 Note H. 
 Indian Contract Act on. Note I. 
 
 USURY LAWS : 
 
 repeal of, has not altered doctrine of " catching bargains," 581. 
 its effect on subsisting loans, 632. 
 
 VARIATION : oral, of wi-itten contract, available for defendant but not 
 
 . for plaintiff', 468. 
 VENDOR AND PURCHASER. fScc Sale of Land ; Specific Pee- 
 
 FOEMANCE. 
 
 VIS 3IAJ0R : meaning of, 366. 
 
 VOID AND VOIDABLE : 
 
 distinction between these terms, 7. 
 confusion between the tenns, 53.
 
 744 INDEX. 
 
 VOID AND yOlDABIjE—contitiHed. 
 
 contracts of infants at common law voidable, not void, 58. 
 
 contracts of lunatics, when void or voidable, 87, 92. 
 
 agreement may be void without being forbidden, or vice versd, 257. 
 
 deed void in part by statute, not necessarily void altogether, 321. 
 
 contract depending on personal skill, &c., made void, not voidable 
 by subseqiient disability, 376. 
 
 in some cases agreement may be void as against thii-d persons but 
 voidable as between the parties, 448. 
 VOLUNTAKY COVENANT : specific performance of, not gi-anted, 184. 
 VOLUNTARY DEED: not rectified against grantor, 477. 
 
 And sec Undue Influence. 
 VOLUNTARY GIET OR SETTLEMENT : 
 
 question as to bui'den of proof on donee, 562. 
 
 readily set aside, 563. 
 
 power of revocation not necessary to validity of, 564. 
 
 WAGERS : 
 
 void by statute, but not illegal, 258. 
 
 former treatment of them at common law, 271. 
 
 parties repudiating, may recover deposit from stakeholder, 335. 
 
 authorities as to, 685. 
 WAGES : statutory enactments as to payment of, 686. 
 WARRANTY : 
 
 implied, of agent's authority, 106. 
 
 implied iu contract to marry, 106. 
 
 effect of, as distinguished from condition, 486. 
 
 implied, on sales of goods, 429, n. 
 
 express, on sales of goods, 487. 
 WEIGHTS AND MEASURES : statutes regulating, 68G. 
 
 WILL: 
 
 covenant not to revoke, not broken by subsequent marriage, 308. 
 contract to make disposition by, lawful, 310. 
 execution of wrong dociunent as, wholly inoperative, 415, n. 
 presumption of undue influence never applied to, 560, n. 
 cannot be rectified, but general intention may take effect against 
 particular words. Note M. 
 
 WINDING-UP : 
 
 secret agreement for conduct of, void, 290. 
 right to proceed with creditor's petition for, not saleable, 299. 
 shares cannot be repudiated after, 539, 546. 
 
 of insurance companies, application of prohibitory stamp laws to 
 policies, 619. 
 WRITING : contracts in, not a special cluss in English law, 169, n. 
 
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