m m."- '/'',/ ''j'/j ■'^' '/// /'// '■'^////'''y/f'''// >//y/m/f/^ m^. i\r % Ryd« Trisi be Fish Mich 30 Bretl Fc Edwi UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY Street, Dox, 1889. TH, cstu. s. cloth, us Pro- rburgh. 7. 8vo. Order, i Wife. In MacE Undt Pc Scri\ E( Deni Plurc Pc XJnde 10. Unde S\ Unde Lia'ws 8V' Oke'£ By Oke'E Bj Oke's Oke's Oke's Fishe pel Davi! Davis Drew Di Mozley ana wniteiey s uoncise J-iaw dictionary. •20s. cloth. Folkard's Law of Slander and Libel. 5th Edition. 1 vol. Koyal 8vo. [In the J'lvss. Crump's Law of Marine Insurance and General Averag-e. Koyal 8v(). '-'Is. cloth. Collier's Law of Contributories in the Winding-up of Joint Stock Ooinpunies. Post 8vo. 9s. cloth. De Colyar's Law^ of Guarantees and Principal and Surety. 8vo. '2iid Edition. 16s. dotli. Grant's Law of Bankers and Banking-. 4th Edition, with Supplement, by C. C. M. Plumptke. 8vo. 11. 9s. cloth. Blagg on Public Meetings. 1 Vol. Post 8vo. 3s. cloth. 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DUBLIN: HODGES, FIGGIS & CO., GRAFTON STREET. CALCUTTA : THACKER, SPINK & CO. MELBOURNE : G. ROBERTSON & CO. MANCHESTER : MEREDITH, RAY & LITTLER. EDINBURGH : T. & T. CLARK ; BELL & BRADFUTE. 1890 LONDON : PRINTED BY C. F. KO'WOETn, GREAT NEW STREET, FETTER LANE. ■^ > 1^ PREFACE, I HAVE been emboldened to issue this Work by the want which I have been told exists for a Book dealing with those branches of law affect- ing more particularly the ordinary transactions of mercantile life. There are many to whom a knowledge of elementary principles of Com- mercial Law is of great use and importance, but who are unable for want either of time or of inclination to read the large and standard works already published ; such, in addition to many lawyers, are chartered accountants, in- surance and other agents, and in fact all engaged in a large business in any of our industries. Although few mercantile men are unwise enough A^ to deal with any legal matter of serious import- ^ ance without the aid of their solicitor, yet in 0/ the affairs of every-day life it Avill frequently 0^ happen that a knowledge of Mercantile Law is almost a necessity; and this is recogTiized by many commercial bodies — e.g.^ the Institute of Chartered Accountants, the Council of which prescribes for its students an examination in several legal subjects, including a paper on 783217 VI niEFACE. Mercantile Law. Moreover, many others re- quire an acquaintance with the subject — e.g.^ such as desire to fit themselves to obtain certain Foreign Office appointments ; to these, this Book, it is hoped, will prove a benefit. There is at present no well-known work cover- ing the same ground. " Smith's Mercantile Law," our best book on the subject, is at present out of print, and besides, is too large for the class of persons who may find the pre- sent Book useful. Other works deal with too much and too little. Many well-known books on the Common Law include much more than is specially wanted by the Mercantile Law student, also much less ; the law of Torts is included, the law of Partnership and Shipping excluded. The present Book claims no originality. Its entire aim is to be simple and accurate ; the matter contained is not to be referred to merely, it is to be learned ; it contains the minimum of information and principle essen- tial to a mercantile lawyer. The subject is one difficult to limit, both as to choice of subjects and to method of treating them when chosen. Mercantile Law means sinq^ly those branches of interest and importance to mer- PREFACE. VU cantile men as such. Now there are many .subjects of considerable interest to these, but Avhich cannot be treated of in a Work like the present — e.g.^ tlie law of Master and Ser- vant, (especially with regard to Employers' Liability ;) the law relating to Leases, Rating, Income Tax. I have drawn my line much too sharply to include these ; in fact, with one or two exceptions, I have discussed nothing but Mercantile Contracts ; and where I have been in doubt as to what to include, I have bowed to the authority of the author of "Smith's Mercantile Law." As I have stated before, I have not attempted any original research, thinking my duty io the reader to be better performed if I made statements only on the authority of recognized writers. My indebtedness to these will be apparent, and I have referred to so great a number that it would be inadvisable to men- tion them here. I may state, however, that on all points connected with Contracts gene- rally I have steadily followed the opinions of, and have referred constantly to that great work, " Benjamin on Sales"; and I have much used Lord Justice Lindley's work on "Partner- ship," and Maude and Pollock on "Sliipping," Till PREFACE. as my authority for the various statements oiii the subjects to which they refer. Authorities are given for nearly every pro- position advanced, but, as I know from experi- ence that a superabundance in a book lilve the present is as unsatisfactory as a want, I have- inserted the most important only, and from these the Teader can easily discover for himself what he may require. The Book is divided into three Parts : — I. A consideration of Principles applicable to all Mercantile Contracts. II. An individual Account of the Law vv- lating to the more important of them. III. Certain miscellaneous Branches of Mer- cantile Law. I can but ask for the indulgence of the 2)ublic, and hope that my Work may not prove altogether useless. Imperfections — many of them — there must be ; for these I apologize, and trust that my kind readers will point them out, in order that, in the event of the success of the Book, they may be amended. T. M. S. 2, Brick Court, Temple, E.G., January, 1890. TABLE OF CONTENTS. Part I. GENERAL VIEW OF THE LAW OF CONTRACTS. PACK DEFI^'ITIO^• OF a Conteact - - - - 1 KlXDS OF C0]S'TKACTS - - - - - - 2 Formation of a Coxteact - - - - 4 Mutual Assent - - - - - - 4 Form or Consideiation - - - - - Contracts under Seal - - - _ _ <» Contracts in Writing _ _ _ _ <} Consideration - - - - -.-i;j A Legal Object - - - - IS At Common Lav — Bnmoral Agreements - - IS In resti'aiiit of Trade - - 19 Sale of PubHc Offices - - 20 Maintenance and Chamj^erty - 20 By Statute - - - - - - 21 Wagering - - - - - 22 Leeman's Act - - - - - 24 Capacity to Coxteact - - - - - 2.3 Lifants - - - - - - - 2o At Common Law - - - - -25 Eatification - - - - --26 Necessaries - - - - - 27 Lifants' Eelief Act, 1874 - - - - 29 X TABLE OF CONTENTS. Cai'Acity to Contract — continued. page Married "Women - - - - - 30 Contracts made before Marriage - - - 30 during Marriage - - - 30 Equitable Rules - - - - - 31 Statute Law - - - - - 31 Lunatics and Drunkards - - - - - 34 Corporations - - - - - - 34 Miscellaneous - - - - - - 37 Rights and Duties - - - - - - 38 Who may enforce them - - - - 38 Assignment of Rights - - - - - 40 Duties - - - - 41 Rights and Liabilities - - - - - 41 I'ajrtnent - - - - - -42 Method of - - - - - - 43 Tender of - - - - - - 43 Appropriation - - - - --47 Receipts - - - - - - 4J> Tender - - - - - - _ 50 Interest - - - - - - 50 Breach of Contract - - - - - - o'l Warranties - - - - - 04 Conditions - - - - - - bb Damages - - - - - - 58 Specific Performance - - - - - 50 Termination of the Contract - - - - 60 Agi-eement - - - - - - - GO Performance - - - - - - 61 Breach - - - - - --61 By lapse of Time - - - - - 61 Impossibility - - - - - - 64 Miscellaneous - - - - - - (ib Fraud, Mistake, Duress - - - - - 66 TABLE OF CONTENTS. XI Part II. RULES RELATING TO PARTICULAR CONTRACTS. I. Sale of Personal Property. PAGB Definition and Requisites - - - - - 78 ^VliomayseU - - - - - - SO Market Overt - - - - - - 80 Factors Act - - - - - -81 Statute of Frauds - - - - - - 8;i Pai"t PajTnent - - - - - - 80 Acceptance and Receipt - - - - - 80 Memorandum in Writing _ _ - _ ,S9 Eights and Duties - - - - - - ill Eights of the Buyer — (a) Before Breach - - 92 (b) Upon Breach - - - 101 Eights of the Vendor — (a) Before Breach - - 103 (b) Upon Breach - - - 103 Eemedies of the Vendor : Action - - - - - - - 103 Lien - - - - - - - 104 Stoppage in Transitu - - - - - IOj Eesale - - - - - - -11.3 Passage of the Property - - - --11G II. Agency. Definition - - - - - - - 122 Who may appoint - - - - - -124 Method of Apj^ointment - - - - - 1 25 Determination of the Appointment - - - - 127 Eights and Duties : (i) Between Principal and Agent - - - - 129 Authority of an Agent - - - - 141 (ii) Between Principal, Agent, and Third Parties - 145 On Contracts - - - --145 On Torts - - - - - 152 Classification of Agents - - - --153 Eights and Duties of each Class - - - 153 Xll TABLE OF CONTENTS. III. Negotiable Instruments. PAGE Gexekal Principles - - - - --1U1 Bills of Exchange _____ 170 Definition - - - - - --171 Parties - - - - - - -173 Acceptance- - - - - --174 Negotiation - - - - - -178 Eights and Liabilities - - - - - 180 Discharge - - - - - - 192 Foreign Bills - - - - - - 190 Cheques __-_-_- 2(il Crossed Cheques - - - - - - 202 Bills of Lading ____-- 208 Bonds, &c. payable to Bearer - - - - 20i> IV. Partnership. Definition and Description - - - - -210 Different Forms of Partnership- - - - - 214 Formation of the Contract - - - - -215 Liabilities of the Parties : (a) Before Dissolution - - - --21ft (b) After Dissolution - - - - - 224 Eights — (a) Before Dissolution - - - - 22(5 (b) ^Vfter Dissolution - - - - 229 Authority of a Partner - - - - - - 232 Property of the Finn _____ 234 Dissolution of Partncrshii) - - - - - 23a Administration ______ 236 [Excursus on Goodwill] - - - - - 239 V. Insurance. General Principles - - - - --241 Life Insurance ______ 245 Fire Insurance - - - - - - - 249 Marine Insurance ------ 252 Definition - - - - - - - 252 Eights and Duties _____ 256' Kinds of Policies - _ _ _ _ 258 Ee-insurance and Double Insiu-ance - - - 259 Losses - - - - - - - 260 "Warranties and Eepresentations _ _ _ 263 VII. Contracts with Seamex. Formation - - _ _ _ Eights and Duties - - _ _ Termination - _ _ _ Hemedies - - _ _ Paet III. MISCELLANEOUS. TABLE OF CONTEXTS. xiii VI. Contract of Carriage. Common Carriers - - - _ _ .^oq- Contract of Affreightment - - _ _ _ 97^ By Charter-i:)arty - - _ _ _ _ 273 By Bill of Lading - - - _ _ 28'^ Freight - - _ _ _ - - 28G Demun-age --____ ogi) General Average - - _ _ _ _ 089 - 292 - 293 - 296 - 29G VIII. Suretyship and Guarantee. Formation of the Contract - - _ - - 297 Liability of the Surety - - _ _ _ ogg Plights of the Surety - - _ _ _ _ 3QQ Discharge of the Sui'ety - - _ _ _ 394 308 I. Pawn, Mortgage, and Lien II. Shipping - - _ _ _ _ _ 32^ III. Bankruptcy ---___ 329 IV. Stamps - - - _ _ _ _ 371 TABLE OF CASES CITED. A. PAGE Acebal v. Levy 79, 86, 90 A'Court V. Cross 64 Adam v. Newbiggiii 72, 75 Adams v. Lindsell 8 Adamson, £.c parte 238 Addison v. Gandaseciui .... 150 Allnutt V. Ashenden 299 Anderson v. Radcliife 21 Anglo -Egyptian Co. r. Ron- nie 118 Appleby v. Johnson 6 Arcedeckne, In re 303 Arkwright v. Newbould .... 67 Armitage v. Insole 92 Armstrong I'. Stokes. 146, 149, 150 Arundell v. BeU 240 Ashbury Carriage Co. v. Riche 37, 127 Ashbury v. Watson 37 Ashcroft r. Morrin 90 Ashley v. Ashley 247 Atkinson v. Bell 86 Atwood V. Maude 231, 235 Attwood V. Small 70 Augusta, The 328 Austraha (Bank of) v. Breillat 232 Azemar v. Casella 99 B. Backhouse v. Hall 300 Badeley v. The Consohdated Bank 217, 221, 302 Baily v. De Crespigny 65 Baines v. Geary 20 V. Swainson 154 Baird's Case 232 Baker v. Denninor 12 PAGE Baker r. Hedgecock 24 Baldey v. Parker 89 Baldw-in v. London, Chatham & Dover Railway 270 Bankart v. Bowers 55 Bannerman v. White 72 Barber i\ Meyerstein 286 Baring v. Corrie ....46, 153, 158 V. Stanton 1 34 Barker r. Janson 258 Barnes v. Toye 27 Barrett r. Deare 46 Barrow v. Amand 103 Barry v. Croskev 70 Bartiett v. Pentland 262 1'. The Attomej'- General 298 Barwick v. The London Joint Stock Bank 152 Bateman r. Binder 64 Batten, In re 369 Baxendale r. Hart 272 r. The Great Eastern Railway 272 Baxter r. Burfield 40 Baylis v. Dineley 27 Bazeley v. Forder 125 Beal V. South Devon Railway ] 30 Beard v. Webb 31 Beauchamp v. Powley 130 ■ V. Winn 76 Beavan r. McDonnell 34 Becket v. Addyman 307 Behn v. Bumess 279 Bekling r. Reed 79 Belfort, The 379 Bell r. Blvth 322 Belts r. Gibbins 138 Benthall v. Bum 89 Bentley v. Craven 229 TABLE OF CASES CIXED. PAGE Berndtson v. Strong 108 Bethell v. Bethell .... 170 r. Clarke 108,111 Betterbee v. Davis 43 Bettini v. Gye 54, 55 Bilbie v. Lixmley 75 Bilborough r. Holmes 217 Binney r. Mutrie 230 Bird r. Browu 107 V. Boiilter 91, 160 Birkley v. Presgrave 289 Birkniyr v. Darnell 13, 297 Bishop r. Shillito 120 Black r. The Ottoman Bank. 307 Blackburn v. Haslam 2G5 V. Vigors 265 Blackhurst r. Cockell 264 Blair v. Bromley 223 Blakeley Ordnance Co., In re 27 Blanchard, In re 326 Blanchet r. Powell's Colliery Co 285 Blaney v. Hendj-icks 51 Blenkinsop r. Clayton 87 Bloxham t\ Sanders .... 92, 105 Boddenham r. Purchas .... 48 Bolton t'. Lambert 127 V. Madden 15 Bonser f. Cox 301 Borries v. Imperial Ottoman Bank 148 Boston Deep Sea Pishing Co. r. AnseU 133, 134 Boultbee v. Stubbs 305 Boulton V. Jones 74 Bowen v. Hall 39 Boydell r. Dnimmond .... 11 Bradlaugh v. Newdegate . . 21 ■ r. De Rin 199 Brady V. Todd 153 Brandon, £x parte 332 —r- V. Nesbitt 253 Brashford v. Buckingham . . 30 Btice's Case 225 Briddon v. Great Northern Had way 268 Bridger v. Savage 140 Brind v. Dale 268 Brogden v. The Metropolitan Railway 7 Bromwich v. Lloyd ........ 165 PAGE Brooks, Ex parte 344 Brown v. The Bedford Pan- technicon 155 V. Kough 201 Browne v. La Trinidad . . 38, 39 Bryant v. Richardson 28 Buddie r. Green 103 Bull r. Robinson 93 Burbage v. Manners 183 Burnand v. Rodocanachi . . 252 Bushell V. Wheeler 88 Byrne v. Schiller 287 V. Van Tienlioven . . 7, ■ parte 344 McDonald v. Whitfield. . 185, 191 Machu V. London and South Western Railway 272 Mackay, £x parte 359 V. Commercial Bank of New Brmiswick 152 McLean v. Clydesdale Bank- ing Co. ..169, 170, 201, 202 V. Fleming 285 McManus v. Bark 200 ■ r. Lancashire and Yorkshire Railway 276 McMyn, J?i rr 303 Macory r. Scott 297 McQueen v. Great Western Railway 272 Mallan v. May 3, 20 Mallalieu v. Hodgson 19 Mann v. FoiTester 159 xxu TAHLK OF CASES OITKO. PAGE March, Earl of v. Pigot .... 264 Margetsoii v. Wright 97 Marryatt v. White 48 Marseilles Extension Rail- way, In re 199 Marshall's case 269 Martin v. Boure 163 Martindale v. Smith 103 Martyn v. Gray 222 Mary Ann, The .... 327, 328, 329 Marzetti v. Williams 204 Mason r. Bauman 133 — V. Harvey 251 V. Pritchard 298 Massey v. Da\'ies 132 V. Sladen 43 Master v. Miller ..196, 197, 198 Matthew, Ux parte 333 Matthews r. Baxter 34 V. Munster 144 Mattock V. Kinglake 54 Ma^TO V. Ocean Marine In- surance Co 291 Meek v. Weudt 145 Mercantile and Exchange Bunk r. Gladstone 106 Merchant Banking Co. v. Phoenix Bessemer Steel Co. 106, 108 Mersey Steel Co. v. Naylor 53, 54 Midland Insurance Co. v. Smith 252 Miles, E.r parte Ill Milford r. Hughes 158 Millen v. Brasch 271 V. Race 167, 170, 182, 207 Mills V. Fowks 48 Mu-abita r. The Imperial Ottoman Bank 122 Mitchell V. Reynolds 19 MoUett V. Robinson .... 131, 132 MoUwo V. The Court of Wards 218, 221 Monetary Advance Co. v. Cater 313 Monk V. Clayton 128 V. Whittenbury 154 Monkhouse, £.v parte 358 Morley, Ex parte 237 v. Attenborough .... 98 Morris v. Levison 94 Morrison v. Gray 107 PAGE Morrison V. Thompson .... 132 Morse v. Slue 270 Mortgage Insurance Corpo- ration V. Inland Revenue . 377 Morton v. Lamb 55 V. Tibbett 87 Moulton V. Camroux 34 Muston V. Gladwin 60 Mutton, In o-e 341 N. National Coffee Palace Co., lie 145 Neck, Rv parte 201 Neilson v. James 139 V. Mossend Iron Co. . 227 Nelson v. Dahl 280 Nesbitt V. Lushington 290 Newby v. Reed 259 ('. Shai"p 65 Newton v. Chorlton 302 Nichols to Nixey 343 Nicholson r. Bradfield Union 35 Nicols V. Godts 54, 55, 95 Norman v. Phillips 104 Norris, Ex parte 365 North Central Wagon Co. v. Lancashire, &c. Railway.. 312 Northumberland Avenue, In re 127 Nugent V. Smith 269 O. Ockenden, Ex parte 318 Offleyt'.Clay 46 Ogden V. Benas 205 Ogle V. Atkinson 108 Oom V. Bruce 263 Oxendale v. Wetherell 94 Page V. Morgan 87 Paget V. Marshall 77 PalUser v. Gumey 32 TABLE OF CASES CITED: XXlll PAGE Palmer v. Grand Junction Railway 267 Parke v. Staniland 83 Parker, In re 344, 350 Pasley 17. Freeman 71 Paterson v. Gandasequi .... 150 Pawle V. Gunn 17 Pawson V. "Watson 264 Payne v. Cave 7 Pearce v. Brooks 19 Pearl v. Deacon 306 Pearson v. Pearson 241 Peek V. Derry 66, 68, 69 V. Gumey 67, 70 r. North Staffordshire Railway 90, 276 Peirce v. Corf 91 Peppin V. Cooper 298 PeiTy V. Bamet 139, 141 Peter v. Compton 13 Peto V. Blades 1 52 Petrie v. Duncombe 51 Phelps v. Comber 201 PhiUips V. Bristoli 88 V. Foxall 73, 300 Philliskirk r. Pluckwell .... 30 Picard v. Hine 33 Picker i\ London & County Bank 209 Pickering v. Busk 126 t\ The Ilfracombe Railway 24 Pickford v. Grand Junction Railway 277 Pigot's case 196 Pike V. Fitzgibbon 31,33 Pinnel's Case 16 Planche v. Colburne 52 Plummer v. Wildman 290 Polak V. Everitt 305 Polhill V. Walter 69, 145 Poly glass V. Oliver 44 Pooley V. Driver 214, 221 Pordage v. Cole 52 Portalis r. Terry 156 Pott V. Clegg 169, 202 Potter V. Duffield 12 Potts t). Bell 21 Power v. Barham 97 Pownall V. Ferrand 17 Price V. Easton 38 r. Green 20 PAGE Price V. Price 45 Prickett r. Badger 137 Printing Co. v. Sampson. ... 19 Vvumett, £x parte 240 Q. Quarman v. Bennett 223 Queen of Spain v. Parr. . 134, 137 R. Rabone v. Williams 147 Raffles r. Wichelhaus 74 Rainsford v. Fen wick 28 Ram Coomar Condoo v. Chundo Canto Mookerjee.. 21 Ramazotti i\ Bowring .... 147 Ramsgate Hotel Co. v. Montefiore 8 Randle v. Trimen 145 Rankin v. Potter 261 Rann v. Hughes 4, 14 Rawcroft v. Lomas 64 Rayner t;. Groto 151 V. Preston 251 Read V. Anderson . .23, 140, 141 V. Bailey 238 Redgrave v. Hurd 71, 72 Reed&Bowen, i:x parte.. 'Sil, 368 V. The Royal Exchange Assurance Co 247 Reese Silver Mining Co., In re 68 R. r. Castlemoi-ten 372 Reid V. Reid 33 Reuss V. Picksley 12 Rhodes v. For wood 137 Richards v. London, Brigh- ton & South Coast Railway 277 Richardson v. Harris 312 r. Jackson .... 49 V. Mellish 19 r. Williamson . . 152 Ridgway v. Clare 237 Riley v. Packington 144 Rivaz V. Gerussi 265 Robarts, £x parte 192 Robinson v. Davison 56 V. Harman 59 XXIV TABLE OF CASES CITED. PAGE Robinson v. Read 43 r. Rutter 46 Rohde I'. Thwaites 120 Rolfe, Kv parte 312 V. Flower 218, 237 Rosevear Cliina Co., Ux parte 112 Rothschild r. Currie 199 Rouquette v. Overmann .... 199 Rousilloii V. Rousillon .... 20 Roux V. Salvador 260, 261 Royal Mail Steam Packet r. The English Bauk of Rio Janeii'o 290 Ryder v. Wombwell 27 Sachs r. Speilman 138 Sale V. Lambert 11 Salting, Ex parte 238 Samuell v. Howarth 305 Sandemannr.Sciirr 108,279,284 Saunders v. Bell 46 V. Topp 87 Sannderson v. Jackson .... 90 Sehinalt/ r. Avery 151 Scholtfifld V. Templar .... 152 Schotsman I'. Lanes. &Yorks. Railway 108 Schuster v. McKellar 283 Scott V. Ebiu-y (Lord) 151 V. Ir\"ing 143 V. Morley 32, 33 v. LTxbridge Railway. . 50 SeweU V. Bm-dick 288 Seymour r. Bridge . . 139, 140, 141 Shadwell v. Shadwell 16 Sharp V. McHenry 316, 344 Sheffield v. The London Joint Stock Bank 182,209 Shelden v. Hentley 165 Shepherd v. Bristol & Exeter RaUway 269 Sheridan v. New Quay Co. . . 268 Sherry, In re 49 Shields v. Blackburn 130 Short V. Simpson 209 V. Spakeman 146 Shute V. Robbins 175 Sibree r. Tripp 16 Sieve wright t'. Archibald .. 159 PAGE Simmons v. Swift 119 Simons v. Fisher 88 V. Great Western Railway 276 Simpson v. Crippin 54 V. Egginton 45 ». Lamb 137 Sims V. Bond 147 Simson v. Ingham 48 Smith V. Chadwyck 67, 70 V. Everett 230 V. Ferrand 44 i\ Goss 106- V. Hudson 86 V. Land and House Pro- perty Co 71 r. Leveaxix 141 f. Sorby 132 V. Surnam 83 V. Thome 63 Smout t\ Ilbery 128 Snowdon, Ex parte 304 Solomons v. The Bank of England 182 Southcot r. Bennet 269 South of Ireland Colliery Co. r. Waddle 35 Southwell V. Bowditch 146 Spalding v. Ruding 113, 114 Spartali v. Benecke 104 Spencer's Case 40 Sprj^e V. Porter 21 Stanford, Ex parte 314, 315 Stanley r. Jones 21 Stai-tup V. M 'Donald 93 Stead V. Salt 233 Stephens v. Australian Insur- ance Co 255 Stephens v. London & South Western Railway 272 Sterling, Ex parte 318 Stevens v. Biller 153, 154 Stevenson v. McLean 7 Stewart v. Aberdein 262 V. London & North Western Railway 277 Stilk V. Meyrick 296 Stokell r. Niven 11 Stone, In re 221 V. Metcalfe 200 Strachan, Re 158 Street r. Blay 103 TABLE OF CASES CITED. XXV PAGE Strickland r. Turner 74 Studds V. Watson 11 Sutield V. Bank of England. 197, 208 Sutherland v. Pratt 254 Sutton V. Tatham 143 Sweeting- v. Pearce 143 Syers v. Syers 221 Sykes v. Giles ' 46 T. Tailby v. Official Receiver . . 79, 310 Tanner v. Scovell 109 Tansley v. Turner 89 Tarling v. Baxter 117 Tatam v. Haslar 182 Taylor v. Bowers 25 f. Caldwell 65 V. Dunbar 256 Tennant, Ex parte 218 Thacker t'. Hardy 140 Thomas v. KeUy ..314, 315, 316 Thompson v. Adams 254 V. Davenport . . 146, 149, 151 V. Lack 61 Thomson v. Weems 245, 248, 252 Thornton v. Charles 159 V. Illingworth .... 28 V. Meux 159 Tidswell v. Angerstein .... 247 Tinson v. Francis 183 Todd?;. Reid 262 Toplis V. Crane 138 Touche V. Metropolitan Warehousing Co 38 Towers r. Osborne 86 Trade, Board of, v. Block . . 347 Tribe v. Taylor 137, 138 Trimbey « . Vignier 199 Trinity House v. Clarke .... 279 True Blue, The 258 Trueman v. Loder 149 Turcan, In re 79 TumbuU v. Garden 132 Turner r. Trustees of Liver- pool Docks 122 Turquand, £.v parte 352 Twyne's Case 73 M. IT. PAGE Udell V. Atherton 152 Usher v. Noble 262 V. Vaglioni v. Bank of Eng- land 188, 189, 192 Valentin! v. Canali 29 Valieri v. Boyland 285 Valpy V. Gibson Ill Van Casteel v. Booker 122 Van Toll v. South Eastern Railway 271, 274 Vaughton v. London & North Western Railway 272 Vernon v. Hallam 241 Vertue v. Jewell 106 Vickers v. Hertz 155 Vilmont v. Bentley 80 Vyner v. Hopkins 305 W. Wade V. Simeon 15 Wain r. Warlters 10 Waite V. Baker 122 Wake V. Harrop 146 Walker, In re 334 V. Mottram 241 Waller v. Andrews 44 ■ V. Lacy 48 Walter v. James 46 Ward V. National Bank of New Zealand 301, 307 Waring, Ez parte 200 Warlow V. Harrison 5 WaiTe V. Calvert 298 Watchcorn v. Langford . 251 Waters V. Monarch Assurance Co 249 Watkins V. Rymill 271,276 Watson, Ex parte 112 V. Strickland 315 Waugh V. Carver 218, 222 Webb y. Fox 343 Week V. Tibold 5 Weir V. BeU 67 Wells V. Mayor of Kingston- upon-HuU 35 C 1 XXVI TABLE OF CASES CITED. PAGE Wennall V. Adney 16 Went worth v. Outhwaite . . 105 Western Bank of Scotland v. Addie 68 Westminster Fire Office v. Glasgow Provident Invest- ment Society 249, 2.51 Westzinthus, Lire 113,114 Whalley v. Wray 270 Wharton v. Mackenzie . . , , 28 White V. Lincoln 132 Whitehead v. Anderson .... 107, 108, 110, 112 V. Izod 138 Whitehouse v. Frost 120 Wicks, Ex parte 358 Wilkinson, Ex parte 349 V. Coverdale .... 130 & Co. v. Unwin.. 184 Willett V. Blanford 231 Williams v. Bayley 21 V. Carwardine .... 5 V. Colonial Bank . . 209 V. Evans 144 V. Gennaine 177 V. Lake 11 V. Millington . .46, 141, 147, 160 PAGE Williams v. Williams 165 Williamson v. Barbour .... 132 WilUs V. Palmer 327 WHsoni;. Brett 130 V. Jones 254 V. Tumman 127 V. Zulueta 146 Withers v. Reynolds 54 Witt V. Banner 316 Wittingham v. Murdv .... 29 Wood V. Priestner . ." 299 Woods V. Russell 118, 121 Wookey V. Pole *. 167 Woolfe V. Home 146 Woolmer v. Muilman 263 Wonns V. Story 324 Wright V. Laing 48 Wulff t'. Jay 306 Wylson V. Dunn 11 Y. Yorkshire Banking Co. v. Beatson 233 Young, Ex parte 301 V. Grote 204 V. Matthews 121 THE ELEMENTS OP MERCANTILE LAW. Part I. GENERAL VIEW OF THE LAW OF CONTRACTS. A CONTRACT has been defined to be an agreement enforceable at law {a) . The term is a general one, and in English law includes agreements under seal, agreements by word of mouth, and those in writing not under seal. From its nature it is clear that there must be at least two parties to a contract, and that these parties must be of the same mind upon the subject; they must be ad idem. Contracts are divisible into (1) contracfH of record ; (2) Ki)eci(dties ; (3) almple {or parol) contracts. (1) Contracts of record consist of judgments, re- cognizances, and statutes merchant and staple, A judgment lays an obligation upon the one party to pay something or do something for the benefit of {a) For full definitiou and discussion of them, see Anson on Contracts, p. 9 ; and the opening- chapter of Chitty's Contracts. M. f Z GENERAL VIEW OF THE LAW OF CONTRACTS. tlie other. A recognizance is a contract " made "with the Crown in its judicial capacity," e.g., to keep the peace. Statutes merchant and staple are of historic interest merely {h). The characteristics of record contracts are : (i.) they are proved conclu- sively by production of the record ; (ii.) they merge in themselves any previous rights with which they deal ; (iii.) no consideration is required. (2) Specialty contracts, or contracts under seal, are also called chwh. It is necessary that they should be WT-itten, sealed, and delivered (c), and in practice they are always signed {(I). The wTiting maybe by hand or in print, and on paper or parchment. In modern times, the seal has become a mere piece of wax which has been pre\dously attached to the writing ; the party " sealing " touches it with his finger, and so adopts it. Delivery may be actual — i. c, handing- over the instrument — or constructive — i. c, speaking words importing an intention to deliver. As a ride, when the executant touches the seal, he says, "I de- liver this as my deed," and this is sujBficient delivery, though he keep it in his own possession (e). If de- livery is made to a non-party, subject to a condition, the document is called an escrow, and then takes effect only when the condition is fulfilled. AVhether it is an escrow if delivered to a party is an open ques- tion(/). At one time a distinction existed between an in- denture and a deed poll ; the former has the edges (b) See Digby's History of the Law of Eeal Property, p. 248, 2nd ed. (c) Co. Litt. 171 (b). (d) As to whether this is necessary, see Bacon, Abr. Oblig. (C). (e) Doe d. Garnons v. Knight, 5 B. & C. 671. (/) See Shepp. Touchs. 59 ; Eiid&on v. Itevett, 5 Bing. 368, 387. KINDS OF COMllACTS. d indented, the latter is cut square. There is, however, now no difference whatever in theii- legal effect (//). Specialty contracts differ from simple contracts as follows : — (i.) No consideration is required (//), ex- cept in the case of contracts in restraint of trade (i). But if any consideration exists, and it proves to be immoral or illegal, the deed will not he supported merely hecause consideration could have been dis- pensed with altogether {J). (ii.) A contract by deed merges in itself an agreement to the same effect contained in a simple contract, (iii.) A statement in a simple contract is presiunptive evidence of its truth against the maker of it ; in a deed it is abso- lutely conclusive, unless fraud, duress, &c., can be proved. This is styled estoppel. (iv.) A right of action arising out of contract under seal is barred by non-exercise for twenty years ; a right on a simple contract is barred in six {k). (v.) At one time cre- ditors by specialty had rights against the land, and against the heir of the deceased, not available to the simple contract creditor. This is now no longer law, as by means of the machinery of the Chancery Division any creditor may proceed against the realty of his debtor (/). (3) Simple contracts. This class contains every contract, whether written or verbal, not included else- where. " If they be merely written, and not (^r) 8 & 9 Vict. c. 106, s. 5. (h) See below, p. 13. But in the absence of consideration equity mil not give specific performauce. Groves v. Groves, 3 Y. & J. 1G3 ; Jffrei/s v. Jefrc/s, Cr. & Ph. 138, 141. (i) Mallan v. Mai/,' 11 M. & W. 653. (./) Collins Y. Blanicrn, 1 S. L. C. 387. (A) But see later, p. 61. IJ) 32 & 33 Vict. c. 46 ; and Judicature Act, 1875, s. 10. b2 4 GENERAL VIEW OF THE LAW OF CONTRACTS. specialties, they are parol" {/»). "Writing is often required, but the contract is complete without it, tlie wi^iting being but necessary evidence. Another classification of contracts is into executovy and executed,, the former being one in which a party binds himself to do or not to do a given thing \e. //., exchange horses this day week), the latter one in which the object of contract is at once performed {e. //., exchange horses, which is done at once) {}i). A further division is into express and implied, the latter being those " which reason and justice dictate, and which the law, therefore, presumes that every man imdertakes to perform" (o). Formation of a Contract. To constitute a contract there must be all the following, viz., (1) mutual assent of the parties, or proposal and acceptance {p)) ; (2) either form or con- sideration; (3) an object not repugnant to law. In addition to these, there must generally be legal com- petency in the contracting parties, though, as will be seen later, want of this will not always avoid the agreement, although it may make it voidable. Mutual Assent. There must be an actual proposal, and an actual acceptance of this identical proposal, not necessarily in words. Thus, A. may offer B. a book for sale, {m) Hann v. Hughes, 7 T. R. 350. (w) Broom, Com. Law, 255. (o) Blackstone, vol. ii. p. 443. [p) Anson's Contracts. FORMATION OF A CONTRACT. and B. may say, " I take it at yom* price," or A. may expose it for sale on a book-stall, and B. may, with A.'s assent, take it up and remove it, saying nothing about price. In either case there is a clear contract — a definite proposal and accej)tance ; in the latter ease to pay the fail' price of the book in return for its possession. But the proposal must be made to and accepted by the person ^\lioso legal relations it is intended to affect ; a stranger cannot take ad- vantage (if it, unless it is made, as a new proposal, expressly to him. Thus, A. said, " I will give 100/. to him who marries my daughter with my consent." B. heard it, married the lady with A.'s consent, and claimed the 100/. ; held, there was no intention of making a legal proposal to A., and none was in existence to be accepted ; therefore there was no contract {Week v. TiboI(l{q)). This is subject to an apparent exception. If a man advertises, c. [/., in- tention to hold a theatrical performance, the proposal is not made to any definite person ; but if one of the public take a ticket, the advertiser is obliged, towards him, to carry out the terms of the advertise- ment. This is really no exception. Here is a de- finite proposal to anybody, accepted by the person to whom it is made, viz., anybody. Other examples of this case are : advertising a reward for services to be rendered (r), railway companies' time-tables, &c. Further, the proposal must be accepted absolutely, and on the same terms as offered. If there is a pro- {q) EoU. Abr. Action sur Case (M.) ; Grant v. SUl, 1 Stark. 10. (r) Williams v. Carwardine, 4 B. & Ad. 621 ; Tf'arloiVY. Harrison, I E. & E. 295. b GENERAL VIEW OF THE LAW OF CONTllACTS. position to go to London for 50/., which is accepted subject to a call being made at Guildford on the "way, here is no contract ; but if the first party assent to this, here is an agreement not dependent upon the original, but on the acceptance of the new, pro- posal (s). It sometimes happens that a proposal is met by a counter-proposal, and a statement that, if nothing more is heard about it, this latter will be considered as accepted. The question of contract or no contract will tlien be probably a question of fact ; but see Felthouse v. Bindley [t). A proposal may none the less be accepted because the parties contem- plate a subsequent more formal specification of the terms (?<) ; but see AjypJehy v. JoJnison (r), where the acceptance was as follows : — " If we can define some of the terms a little clearer, it raiglit prevent mistakes ; but I think we are agreed on all. We shall, there- fore, expect you on Monday. P.S. I have made a list of customers, which we can consider together." This was held to be insufficient, and too indefinite to bind as a completed contract. Of com-se, an unaccepted proposal will not affect the rights of the parties. A proposal, if the mode of acceptance is specified, is not properly accepted, unless it is accepted in the prescribed manner, e. g., in writing, where it is to be accepted by letter (see below). A proposal may be mthdr'a^xoi at any time before acceptance, thus, a bid at an auction is not binding (s) HHtch'mson v. BowJccr, 5 JM. & W. 535 ; Hijch v. Wrench, 3 Beav. 334. {t) 11 C. B. N. S. 869 ; 31 L. J. C. P. 204. \u) See cases in Benjamin on Sales, p. 43. (r) L. E. 9 C. P. 158. I I rORMATIOX OF A CONTRACT. / till accepted by tlio fall of the liammer {tc) ; but to be effectual tbe revocation must be communicated to tbe other party, certainly when the communication is by letter, and probably in any event {x). If, when the offer is made, the proposer expressly promises to give time for acceptance, he may nevertheless revoke before the expii-ation of the time, if he ha s received no consideration for the promise to keep open.(//), and if he communicates his revocation before the other party accepts (~) . When the proposal is made by post, a revocation cannot take place after the ac- ceptance has been duly posted (a), although it may not have arrived, or may never arrive (b) ; to be of any avail the revocation must reach the acceptor before acceptance. The acceptor also is prevented from withdi'awiug his acceptance after posting, even though it never reaches the proposer (n) 2 B. & Ad. 328. 16 GENERAL VIEW OF THE LAW OF CONTRACTS. creditors to be content therewith : held, a good con- sideration {)/). The following are examples of agreements which are bad not on the ground of inadequacy, but because there is no consideration at all : — A promise founded on moral obligation (o); offer of a promise to do what the promisee can legally demand abeady ; but if a third party asks a contractor to carry out his contract, this may be good consideration as between the con- tractor and the thii'd party. Thus, in ShadiceU v. Shadwell (p), an uncle offered an annuity to his nephew if he would carry out a previously arranged engagement with A. B., and fulfilment of the latter was held enough to support the promise. Payment of a smaller amount cannot ever be consideration for discharge from an agreement to pay a larger amount {q). In Foahcn v. Beer (r), a debtor agreed to pay his debt by a part payment down, the remainder by instalments, the creditor meanwhile agreeing not to proceed with his legal remedies. The House of Lords held, that the debtor gave no consideration, as he could have been made to do what he did indepen- dently of his promise ; though had a bill of exchange been given, this would have probably amounted to good consideration («); and so if the smaller sum had been, by agreement, taken before the full payment became due. {n) Though in Foakes v. Beer, uhi infra, Lord Fitzgerald calls this a "rather artificial consideration." (o) Wennall v. Adncij, 3 B. & P. 247; Eastwood v. Kenyon, 11 A. &E 446. {p) 9 C. B. N. S. 159. (fl) FinneVs case, 5 Rep. 117 a; Cumber v. Wane, 1 S. L. C. 357. (r) 9 App. Ca. 605. (.s) Sibree v. Tripp, 15 M. & "W. 23 ; and see Chitty, Contracts, Consideration. lORMATlOX OF A CONTRACT. 17 The riile iu Chancery as to adequacy of considera- tion is the same as at law, but equity is always on the look out to defeat fraud, undue influence, &c., -and in a douLtful case "will consider inadequacy as very material to a proper decision {t) . 3. The legality of the consideration will he dealt with under the general head of Legality of the Con- tract (later, p. 18). 4. The consideration must not be past. " A mere voluntary coiu'tes}^ " is not sufficient to support a subsequent promise (?/). To this rule there are ex- ceptions — (i.) a past consideration will be enough, if it has been given at the request of the person making the subsequent promise, e.g., if A. requests B. to do certain work for him, and some time afterwards says, "You shall have 10/. for that," the consideration, though past, is good (r) . Such request may be express or implied; implied when, e.g., the defendant has adopted the consideration [ic), or when the considera- tion consisted in the plaintiff's having done, under compulsion, that which the defendant should legally have done (x) ; (ii.) where a party originally received Ijenefit from the consideration, but some law (^-i/-. Statutes of Limitation) prevents the giver of the consideration from enforcing his rights, a promise by the i^arty who received the consideration to per- form his contract will be considered good (y), e.g., {t) See Pollock, Contracts, 189. («) Roll. Abr. 27, pi. 49 ; and notes to LainpJeigh v. £rait?ttcal!r, 1 S. L. C. 151. {v) 1 S. L. C. 151. (w) Pawle V. Gunn, i Bing. N. C. 448. \x) Townalr. Ferraml, 6 B. & C. 439. (y) Fliylit v. Reed, 1 H. & C. 703. Formerly under this rule ao infant, on coming of age, might give a valid promise to pay his old debts. But now see the Infants' Relief Act, 1874. M. C 18 GENERAL VIEW OF TflE LAW OF COXTllACTS. A. owes B. 50/. for goods sold and delivered, but six years have elapsed since A. agreed to pay the liioney ; A. noAv says " I will pay ; " tliongli lie re- ceives no fresh consideration, ho is nevertheless bound by this promise. A Legal Object. This is the iliird requisite of a contract. The presumption is in favour of legality, and every con- tract is considered legal unless it falls within some of the below-mentioned classes ; if there is any serious doubt, the Court inclines rather towards supporting tliau to upsetting an agrceniont. Contracts may be illegal — (a) at common law ; (b) by statute. At Comnw)i Ldic. — Here the general rule is, " ex turpi causa non oritvr actio,^^ nor does it matter whether the case is being set up by plain- tiff or defendant. A contract for an object in itself innocent may be void if an illegal or immoral pur- pose is known to exist. In Cannan v. liri/cc (~), ]ilaintiff lent defendant money to pay for losses on illegal stock transactions, and Abbott, C. J., said, " It is impossible to say that making such pa^Tiients is not an unlawful act ; and if it be unlawfid. in one man to pay, how can it be lawfvd for another to fiu"nish him with the means of payment." So where a brougham was supplied to a prostitute, and the evidence showed that the payment to be made was not to depend upon amounts earned, yet that the lender knew of the inmioral object with which the {:) 3B. & Aid. 179. rORMATlOX OF A CONTRACT. ID carriage was hired, the Court declared the contract illegal (a). The following are amongst contracts illegal at common law : — (A) AgrecmcntH of an luDnoml Nature — c.(j.,va. consideration of future cohabitation; for printing or selling libellous books, or immoral pictures ; also agreements to commit a crime or a civil wrong {li) . (B) Agrcenioits confmnj to PuJ)lic Policy. These are such contracts as are injurious to the >State or society, and such as, on grounds of public advantage, the Court will not recognize. At one time the tendency was to avoid many agreements on this gromid, but the modem tendency is the reverse. Thus, in RicJtant.son v. JSIcllkli (c), Best, C. J., said, " I am not much disposed to yield to arguments of public policy." In T//e Priidbuj and Numerical Co. V. Sampson [d), Jessel, M. R., said, " You have this paramomit policy to consider, that you are not lightly to interfere with the freedom of contract." The agreements wliich the Courts will refuse to recognize on this ground may be grouped as fol- lows : — (a) Co)itracts in Restraint of Trade. — A contract in (jcncral restraint of trade is void, e.g.., not to practise as a surgeon (e). " The law will not permit anyone (ff) Pearce v. Brooks, L. R. 1 Ex. 213 ; and see the cases collected in Benjamin on Sales, pp. 500, 504. 7.^'. [h) Clay V. Yates, 1 H. & N. 73. In MalMieu v. Hodgson, IG Q. B. G89, an agreement to pay one creditor a part of his debt in fidl if he would agree to a proposed composition was held to be bad. (c) 2 Bing. 242. (rf) 19 Eq. 462. \e) Mitchell v. Reynolds, 1 S. L. C. p. 417, 8th ed. c2 20 GENERAL VIEW OF THE LAW OF CONTRACTS. to restrain a person from doing wliat liis own interest and the public welfare require that he should do" (f^). The rules seem to he {c) — (1) an agreement in re- straint of trade must, even if under seal, show some consideration ; (2) the restraint as to space must be partial only, and not general, c.r/., a brewer agreed not to carry on the business of a brewer anyivhcrc, held void (/) ; (3) the restraint may be unlimited as to time {g) ; (4) in every case the restraint must be reasonable (Ji). The terms of these agreements are divisible, and if readily separable, those which may be carried out are not destroyed by those wliich cannot {i). (b) Contracts for the sale of Puhlic Offices. — These are frequently prohibited by statute, but if not, the policy of the law prevents any legal effect from arising. See cases in Benjamin on Sales, 1^. 507. (c) Contracts involv'uuj Maintenance or Champerty. — Maintenance " is wliere one officiously intermeddles in a suit depending in any Cornet, which no way belongs to him, by maintaining or assisting either party with money or otherwise, to prosecute or defend it. Champerty is .... a bargain with a plaintiff or defendant, to divide the land or other matter sued {d) Best, C. J., in Homer v. Ashford, 3 Bing. 326. [e) Mallan v. May, 11 M. & "W. 653, 668. (/) Ilii/dc V. Gnn/, 1 M. & G. 195. This is the old law, hut it is now said that total restriction as to space may be upheld if the contract is reasonable. The point is unsettled. (ff) mtchcock V. Coker, 6 Ad. & E. 438. [h) Rousillon v. Rousillon, 14 Ch. D. 351. The cases on restraint of trade may be found in Pollock on Contracts, p. 333, 3rd ed. ; and see Benjamin on Sales, pp. 510 et scq. (i) Price V. Green, 16 M. & W. 346 ; Baines v. Geary, 35 Ch. D. 154 ; Baker v. Hedgcock, 39 Ch. Div. 520. FORMATION OF A COXTRACT. 21 for between them, if they prevail at law, whereupon the ehampertee is to carry on the party's suit at his own expense "(y). It was believed by some that maintenance was dead in modern law, but this illusion was dispelled by the decision in Bradlaugh V. Nen-d('(jafe (k). Taking a transfer of an interest in litigation as security is not champerty, and a supply of funds fairly and openly, and with an intention partly charitable, is not necessarily against the policy of the law (/). Moreover, maintenance is law^ful where the persons maintaining have an interest in the subject-matter of the action {m). (d) Trading u-ifh cm JEneiiif/ {n) ; Contracts impeding Justice [e.g., taking money to stifle a prosecution) (o) ; Contracts in fraud of the Revenue ; Marriage hroc((ge Contracts, S^-c. By Statute. — Contracts forbidden by statute cannot be enforced, whether they are forbidden expressly or impliedly. A question frequently arises whether a given act is forbidden by a statute or no. The rule has been laid down thus : if parliament affixes a penalty to the commission of a given act, it does not forbid that act, if the penalty is inflicted {J) Chitty, Contracts, 625 ; and see " Termes de la Ley ; '* Coke upon Littleton, 368 (b). (A) 11 Q. B. D. 1 ; and see Fi>ido)i v. FarJcer, 11 M. & W. 675 ; Stanley v. Jones, 7 Bing. 369 ; Sprye v. Porter, 7 E. & B. 58 ; James V. Kerr, 40 Ch. D. 449. {I) See AneUrson v. Eadcliffe, 28 L. J. Q. B. 32 ; 29 L. J. Q. B. 128; Ram Coomar Condoo v. Chunder Canto MooJcerJee, 2 Ajjp. Ca. 186, 210; Harris v. Briscoe, 17 Q. B. D. 504; and see Pollock, Con- tracts, 310. (»m) Guy V. Churchill, 40 Ch. D. 481. \n) Potts V. Bell, 8 T. R. 548. (0) Williams v. Bayley, L. E. 1 H. L. 200. 90, GENERAL VIEW OF THE LAW OF CONTRACTS. merely for revenue purposes, i.e., -penalty for not taking out a licence to sell tobacco {p) ; otlierwise tlie act is forl)idclen, and the contract is unenforce- aWe (q). The following are cases of contracts made illegal l)j statute : — (a) Gaining and Wagering Contracts. — Tliese at (Jommon Law were legal, but the " policy of the law " was used to keep a check upon a promiscuous enforcement. By the statute 8 & 9 Yict. c. 109, s. 18, " all contracts and agreements, whether by parol or in writing, by way of gaming or wagering, shall be nidi and void ; and no suit shall be brought or maintained in any Coui't of Law or Equity for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event of any wager which sliall have been made." As is pointed out in an elementary work on Con- tracts (>•) , a wager is not of necessit}' unenforceable — thus, a marine insiu'ance is in reality as much a wager as is a bet on a horse, in the one case a man bets that a ship will not arrive home safely, in another that au animal will run more quickly than another. The wagering aimed at by the Act is wagering by way of gaming. To mercantile men, the importance of the statute lies in the effect it may have on Stock (jo) Johnson V. Hudson, 11 East, 180. ('7) For a fiu'ther test, see Cope v. Jlowlands, 2 M. & W. 149, in •wliich Parke, B., said that if the statute is intended to forbid the act, the question of revenue purpose or non-revenue purpose could not affect the matter. (/•) Anson. FORMATION OF A CONTRACT 23 Exchange transactions. These were formerly dealt with by Sir John Barnard's Act(«), now repealed. The modern law is this, that if when shares are purchased, there is a bond fide intention to take them, and to pay the price, then the contract is good ; but if the purchase is a mere cover, under which the paiiy speculates in the rise and fall of prices, then the contract is of a wagering nature, and is bad. A. sells stock to B. ; A. has none of the particular kind, and never intends to get any, nor does B. intend to buy them. This is a wager; but if an honest intention to buy and sell exists, the fact that the parties afterwards change their minds, will not affect the cjuestion — the contract is good (t) . It must be noticed, however, that when it is said that a gaming contract is illccjal by statute, it is not meant that an offence is committed in making a wager, but that the Courts will not enforce the contract. Thus it will be perfectly at the option of the promisor whether or no he pay the debt ; he may do so if he likes ; if he does, the money cannot be recovered. It follows fi'om this, that if an agent be employed to make the bet, the principal cannot set up the statute as a defence if the agent sues him for money paid in accordance with a loss. There is the ordinary implied contract to indem- nify the agent for moneys jiroperly expended, and there has been no violation of the law in paying bets at the request of the principal {it). Negotiable secu- (s) 7 Geo. II. c. 8. (0 Griseuood\. lilaur, 11 CB. o2G ; Knight \. Cuiiihcrs, 1-5 C. B. 562. {u) Jicadv. Anderson, 13 Q. B. D. 779. Astoanactionagaiustthe agent for not making the bet, see Cohen v. KittcU, 22 Q. B. D. 680. 24 GENERAL VIEW OF THE LAW OF CONTRACTS. rities given in payment of bets, are deemed to liave- been given on an illegal consideration, consequently, as between the payer and payee, they are useless, but innocent third parties, holders in due course, may sue upon them {r). (b) Sales and Trading Contracts on Sundaij. — See 29 Car. II. c. 7 ; but the trading should be either by Avay of public sale, or in course of the contractor's ordinary calling. < (c) Leenuoi^sAct (30 & 31 Yict. c. 29) renders void the sale of shares in a joint stock banldng company, unless the contract sets forth in writing the nimiber of the shares as stated in the register of the company. In addition to the above, many other contracts,, especially dealings with sales, are rendered illegal or only conditionally legal, c. g., sale of intoxicating liquors, except in accordance with regulations, sale of di"ugs, &c. The effect of illegality, as a rule, is to avoid the whole contract ; but if there be an independent stipulation, the excision of which would not affect the agreement as a whole, the illegahty of this stipu- lation will not avoid the whole contract. The general rule is, that where you cannot sever the illegal fi'om the legal part, 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. (Mr. Justice Willes, in Pickering v. T//e J/fracombe Rail. Co. (u-).) {v) See post, p. 161. (w) L. R. 3 C. P. 235. Adopted by Cliittj, J., in Baker v. Hedgecock, 39 Ch. D. 520, 522. CAPACITY TO CONTRACT. 25 Can money paid under an illegal contract be re- claimed ? This will depend upon -wlietlier the con- tract has been executed or is still executory. In TaijJor V. Boiccrs {x), Mellish, L. J., said, "If money is paid, or goods delivered, for an illegal piu-pose, the person who had so paid the money or delivered the goods may recover them back before the illegal pm-- pose 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 the action." Capacity to Contract. Every person is presumed to have capacity to con- tract, but there are certain classes of people in whose cases this does not hold, e. g., infants. Such in- cajiacity must be proved by the party claiming the benefit of it, and until proved the ordinary presump- tion remains. It may be absolute — here the contract is void — or limited, when the contract is voidable merely. Contracts with Infants. A person under twenty-one years of age is legally an infant, and as such is incapable of entering into a contract which will bind him to the same extent as if he were of full age. At common laio his contracts, though probably not void, were always voidable, /. c, he could refuse to carry them out ; therefore he could himself enforce them if he so desired (^). But he was liable in the two following cases: — (1) When he [x) 1 Q. B. D. 291. [y] He cannot get specific performance in equity. 26 GENERAL VIEW OF THE LAAN' OF CONTRACTS. ratified the contract after coming of age. (2) When the contract was for the supply of necessaries. Ratificatio)). — It has been saicl that an infant can ratify only those contracts made for his benefit {h) ; but the better opinion is that by the common law he may ratify anything {(■) . For this piu-pose contracts may be divided into two classes — those which require express ratification, and those which, for want of evidence to the contrary, are presumed to ha^'e been adopted. Amongst the former are nmnbered the great majority of contracts, and to these Lord Ten- terden's Act {d) applies (9 Geo. 4, c. 14, s. o), which requires the ratification to be in ^\Titing, " signed by the party to be charged"; and it has been held that the "s\Titing should be " a written instrument which, in the case of adults, would have amounted to the adoption of the act of a party acting as agent " [c). ISucli ratification may be conditional (/). Contracts which are presumed to have been adopted unless expressly disclaimed are such as may be styled continuous contracts. An infant who remains in partnership after attaining his majority will be held liable as a partner for debts accruing after he comes of age. " If he wished," says Best, J., in a similar case, " to be miderstood as no longer continuing a partner, he ought to have notified it to the world " (//). An infant may hold shares in a company, and if wiien he becomes of age he does not repudiate them, he wiU {h) Chitty's Contracts, p. 151. {r) Pollock, 3rd ed. p. 51. \d) Now repealed so far as concerns tlii.s point. [e) Rolfe, B., in Harris v. Wall, 1 Ex. 122; and see cases cjuoted there. (/) Leaperx. Tatton, 16 East, 420. ((/) Goodey. Harrison, 5 B. & Aid. 159, 160. CAPACITY TO CO^'TRACT. Zt he deemed to have ratified tlie contract to purchase, and will be liable to be placed on the list of con- tributories (h). If he make a lease and accept rent after coming of age (/), or if he continue to occupy under a lease (J), in either case he will be considered to have adopted the contract. Necessaries. — For these an infant may always con- tract. They include, says Coke {k) , "his necessary meat, drink, apparel, physic, and such other necessaries, and likewise for his good teaching or instruction, whereby he may profit himself afterwards," and this has been extended by the addition of tilings " suitable to support his station in life " (/). The question whether a given thing is or is not a necessary is determined as follows : Evidence is given — which may include proof that the infant was abeady duly supplied with tlie thing in question {)ii) — and upon this the judge determines whether the things supplied can reasonably be termed necessaries, if he thinks the cpiestion open, he leaves its decision to the jury, if he has no doubt, he himself decides accordingly. Ryder v. Womhicell {n). The circum- stances of that case were as follows : the defendant had 500/. a year, and an expectancy on coming of age ; and Kved with relations. He bought some jewelled solitaires, a jewelled silver smelling bottle, an antique goblet, and a pair of coral ear-rings. The (/<) Re Blalrky Ordnance Co., L. R. 4 Ch. 31 ; and EhhcWs case, L. E,. 5 Ch. 302. (t) BaijUs V. Dlneloj, 3 M. & S. 477, 481. 0) Rolle Abr. 731. (ic) Co. Litt. 172 (a). [I] See Field, J., in Barnes v. Toije, 13 Q. B. D. 410. {m) Barnes v. Toyc, tibi supra ; Johnstone \. Marks, 19 Q. B. D. .509. («) L. R. 3 Ex. 90 ; and on appeal, 4 Ex. 32. 28 GENERAL VIEW OF THE LAW OF CONTRACTS. jmy found that the solitaires and gohlet were neces- saries, hut that the other articles were not. It was eventually held by the Court, that the plaintiff should have been non-suited, and the following rules were laid down: — (1.) That the judge must determine whether the case is such as to cast on the vendor the onus of proving the articles to be necessaries within the exception, and whether there is sufficient evidence to satisfy that onus. (2.) A thing is a necessary if it is requisite that an infant should have the article for the purpose of maintaining himself in his station. The Court below said that, evidence tending to show that the infant was abeady fully supplied with the things in question could not be material ; this was left open on the decision on appeal, and the contrary is certainly now the law (o). The following examples may illustrate the above : — Livery for an officer's servant, held necessary (^j); Horse, when doctor ordered riding exercise, held necessary {q) ; Goods supplied for the pm-pose of trading, not necessaries (r) ; Cigars and tobacco, not necessaries (s) ; Refreshment to an undergraduate for entertaining,, not necessaries {t) ; Goods supj)lied to an infant's wife for her sup- port (?/), held necessaries. (o) Johnstone v. Maries, 19 Q. B. D. 509. \p) Hands v. Slaney, 8 T. R. 678. [q] Hart v. Frater, 1 Jur. 623. (*•) Thornton v. Illi»gu-orth, 2 B. «S: C. 824. An infant i» supposed not to have sufficient discretion to trade. As to whether he can be made bankrupt, see Williams on Bankruptcy, p. 3. {s) Bryant v. Eichardson, 14 L. T. Eep. N. S. 24. \t) Wharton v. Mackenzie, 5 Q. B. 606. (««) RainsfordY. Fenwick, Carter, 215. CAPACITY TO CONTRACT. 29 The liabilities of infants are now affected by the Infants' Eelief Act, 1874 (37 & 38 Vict. c. 62). Thisenacts (sect. 1), " all contracts, whetlier by specialty or simple contract, henceforth entered into by infants for the re-payment of money lent or to be lent, or for goods suj)plied 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 futiu-e statute, or by the rules of common law or equity, enter, except such as now by law are voidable." Sect. 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" (./•). The statute has not received much interpretation, and it is somewhat vague. The fii'st section makes the contract void, not voidable. Suppose that A., an infant, borrows money of B., if the contract is void there can be no right under it ; can the money "be reclaimed ? There is no express decision, but in a recent unreported case the Court seemed to think it could not (xx) . On sect. 2 the leading decision is Kp parte Kibble (y). The contract was there entered into [x) Such contracts as under the old law were ratified by conduct, f.ff., partnership (see above), would probably not be touched by this section. It would now be held [scmhle) that a new contract had been made dating from the time of the former infant's majority. But see Wittingham v. Mnrdy, 60 L. T. Rep. 956. {xx) Valcntini v. Canali, W. N. 1889, 210, seems to point to the eame principle. (y) L. R. 10 Ch. 373. 30 GE^'ERAL VIEW OF T]IE LAW OF CONTRACTS. during infancy and before the passage of the Act ; judgment was obtained subsequent to 1874, and tlie Court held that this, if a ratification, was made subsequent to the Act, and so was avoided. Contracts with Married Women. I. Coi/fracfs entered uifo before marriage. — At com- mon law these of coiu-se are good, and even after marriage the right to sue on them given to the husband is but conditional ; he must take some active step to reduce them into possession, e.g., bring an action, receive the money ; if he fails to do so the right survives to the wife, and in the event of her husband's death, she and not his representatives possess it, and if she die first, the right goes to her personal representatives. If pending the marriage an action is brought by him, he must join the wife as a party (:;). II. Contracts entered into daring marriage. — At common law "a married woman has no power or capacity to contract, so as to sue or be sued, either with or without her luisband, on her contracts made during coverture '' {a). To this general rule there are many important exceptions. (a) A married woman may sue jointly -uith her husband on such contracts of which, as it is said, she was the meritorious cause, e. g., on an agreement in consideration of her personal skill, that she should cure a wound (i), on a promissory note given to a woman payable to her (r) . The law as to these seems similar {z) Comyns' Dig. Baron and Feme (V.). («) Chitty's Contracts, p. 174 ; and Benjamin on Sales, p. 32. {b) Brashford v. Bucldutiham (Did icifc, Cro. Jac. 77. {c) FhilUslcirh v. FluckivcU, 2 M. & S. 393. CArAClTY TO CONTRACT. 31 to that regulating contracts made by lier before marriage, viz. : tliey belong to the wife unless reduced into possession by the husband. (b) If the husband is cidUtcr jjiorfuus, o. g, if he is in penal servitude {d). (c) By the custom of the City of London a married woman may trade as a feme sole, and is then liable on and has the benefit of all matters arising out of that trade (e). In equity different rules prevailed. Here property which was settled to her separate use was looked upon as hers independently of any control of her husband. She could contract freely with regard to such property, and it became Hable for her debts so far as they were entered into with regard to it (/). But there is this limitation, that the separate estate must not be subject to a restraint on anticipation (/. e., a prohibition against alienation, /. r., charging it before it is in actual possession) , and the contract will bind only such estate as to which at the time of contract- ing she was entitled free from such restraint {[/) . Legislation has much changed the law relating to married women. (a.) The Divorce and ^latrimonial Causes Act, 1857, enacts that a divorced woman, or one judicially separated, shall during separation be considered a fei)w sole for the purpose of contracts, &c., and of bringing and defending actions. Provision is also made for the case of a deserted wife. {d) Ex parte Franks, 7 Bing". 702. (e) Beard v. Webh, 2 B. k P. 93. (/) Johnson V. Gallagher, 3 Do G. F. & J. 494. (g) Tilce V. FitzgibhoH, 17 Ch. Div. 4o4. In this case Brett., L. J., seemed so impressed with the limitation, that he said he wonld call the engagements promises and not contracts. See Ex parte Coulson, 20 Q. B. D. 249. 32 GENERAL VIEW OF THE LAW OF CONTRACTS. (1).) The Married Women's Property Act, 1870, which governs tlie cases of those married before January, 1883, enacts : — (i) That the following shall be her separate estate, viz., all wages, earnings and profits made by her skill, and investments of these ; any personal property acquired rfs next of kin ; any sum of money under a deed or will not exceeding 200/. ; and rents of real j)roperty. She may also ha^e fully paid-up shares registered in her o^\ti name. (ii) That she may maintain an action relating to the above in her o^\ii name, without joining her husband. In consequence of the above, she ma}^, as in the case of equitable estate, be liable on contracts made with a view to her separate estate, but her husband must be joined with her in most cases {/i). (c.) The Married Women's Property Act, 1882. This mainly affects those married after the 1st January, 1883. Its main pro\TLsions are : — (i) A married woman shall be capable of holding and disposing (?) of property and of contracting {J), as a feme sole, but so as to bind her separate estate only {/). (ii) A contract entered into is deemed to be with a view to her separate estate, both what she has at the time and what she may thereafter acquire (k). {h) Judgment may be obtained against her under Ord. XIV., H. S. C, with the limitations laid down in Scott v. Jlor/et/, 20 Q. B. D. 120. There is no necessity to show that the woman has .separate estate, if the debt is pre-nuptial. Downe v. Fletcher, 21 Q. B. D. 11. (J) Sect. 1 (1). (,/) Sect. 1 (2). It must be shown that she has separate pro- perty. Fdlliser v. Gunui/, 19 Q. B. D. 519. (A) If the debt is pre-nuptial, see note {h) above ; and Doicne v. Fletcher, 21 Q. B. D. 11. Sect. 1 (3) and (4). And see Leak v. F)rifficld, 24 Q. B. D. 98. CAPACITY TO CONTRACT. (iii) Property of a woman married after the Act is to be held by her as o^femc -sole (/). If manied before the Act, she will have as separate property everything the title to which may accrue to her after the com- mencement of the Act {ni). (iv) Her separate estate "uiU be answerable for ante-nuptial debts {n). (v) Existing settlements are to hold good (o), and restraints on anticipation are not to be affected {p). It must be noticed that in no case is there any remedy against the married woman ; it is her estate alone that is liable {q) ; she is subject, not to a personal, but to a proprietary liability. Thus she cannot be committed upon a judgment summons for non-pa}Tnent (r) ; nor, unless she is trading apart from her husband, can she be made bankrupt (.s-) . A husband may still be liable on his wife's con- tracts. The common law rule was that for ante- nuptial debts he washable, pending coverture, jointly with the wife, but that on her death he again became free of them (/). For debts incurred by the wife dming coverture, he was fully liable, insomuch as he was in the position of principal and she of agent {ii). {I) Sect. 2. (>h) Sect. 5. See as to meaning' of this section, Picid v. Rial, 31 Ch. D. 402. («) Sect. 13. (o) Sect. 19. {p) Ibid. ; and see Hancock v. IlancocJc, 38 Ch. D. 78. {q) See remarks in Fike v. Fitzgibbon, t(bl supra ; Flcard v. Ulne, L. E,. o Ch. 274, 277 ; Braijcott v. Harrison, 17 Q. B. D. 147. (>•) Scott V. Morley, 20 Q. B. D. 120 ; and see Hyde v. Eydc, 13 P. D. 166. (s) Ex parte Jones, 12 Ch. D. 484 ; Ex parte Coulson, 20 Q. B. D. 249. (<) Chitty's Contracts, p. 157. (u) See later, pp. 141, 145. M. D 34 GENERAL VIEW OF THE LAW OF CONTRACTS. Under the Act of 1870 {tv), a ImsLand married after its passage was exonerated from all debts incurred by tlie wife previous to covertm^e. Tliis was altered in 1874 (.r), so as to make him liable to the extent of any estate or property of which he became possessed in virtue of his wife. The Act of 1882 makes him liable to the same extent, and gives power to the creditor to sue husband and wife jointly for such debt (y). Contracts with Lunatics and Drmiken Persons. If the contract is not merely executory, but be part performed, unless advantage has been taken of the lunatic's state, it will hold good. If it be exe- cutory only, it is, at most, at the option of the party whose mind is weak to avoid it, but it is not //;.so facto void, and so it may be ratified. If the contract is for the supply of necessaries, in the absence of unfair jilay, the contract is unquestionably good (s). Contracts with Corporations (a). There is nothing to prevent a corporation from taking the benefit of or being under hability on contracts, but, from its nature, it must bind itself in a peculiar way, and its powers may be limited in respect of the nature of the contract into which it may enter. As a rule, it may be said that a cor- (u-) Sects. 12, 15. (x) Sects. 2 et seq. (y) Sects. 14, 15. [z) The authorities on this part of the subject will be found in Moutton V. Camroiix, 4 Ex. 17 ; MattJieus v. Baxter, L. E,. 8 Ex. 132; Beavan v. McDonnell, 9 Ex. 309. ((?) As to the difference between corporations, companies, and private partnerships, see later, p. 211. CAPACITY TO CONTRACT, 35 ■poration must contract under seal, and of course it must contract by means of an agent. But in many cases, the use of the seal is dispensed -^ith. These may be grouped thus : — 1. Where the convenience of such a course amounts almost to a necessity (/;), e.g., matters of urgency (c), matters of daily occurrence, the liire of a servant, supply of coals to a workhouse {d). And this class of exception is now extended, for whereas it was at one time thought that it referred only to matters of small importance, it is now settled that, at any rate as regards trading societies, it will apply to all contracts within the scope of the business of the corporation. " The general result of these cases seems to me to be that, whenever the contract is made with relation to the purposes of the corporation, it may, if the corporation be a trading one, be enforced, though not under seal" {e) ; and further, '"I cannot think that the magnitude or insignificance of the contract is an element " (./'). It would thus seem that a trading corporation may make any parol con- tract, provided it be such as is requisite having regard to the particular business {g) . A non-trading corporation is more strictly dealt with, but even hero matters of lu-gent necessity, matters of every day occurrence, &c., may be made by parol. Story la^'S it do^^Tl boldly that, " whenever a corporation is [h) Church x. The Imperial Gas Light Co., 6 A. & E. 846. (c) Wells v. Mayor of King.sion-upon-Uull, L. R. 10 C. P. 402. \d) Nicholson v. Bradfield Union, L. R. 1 Q. B. 620. (e) Wig-litman, J., in Clarke v. The Cuckfield Union, 21 L. J. Q. B. 349. (/) Erie, J., in the same case. \g) See South of Ireland Colliery Co. v. Waddle, L. R. 3 C. P. 463. d2 3G GENERAL VIEW OF THE LAW OF CONTRACTS. acting within the scope of the legitimate purpose of its institution, all parol contracts made by its- authorized agents, are express contracts of the corpo- ration " (//). 2. In some cases, when a contract has been partly performed, the absence of seal has been held to be no bar to an action ; but it would seem that the part performance must be of such a nature as would entitle a party in equity to a grant of specific per- formance, i.e., it must be inequitable that tlie party who performs should not have what he agreed from the other party, and it should be shown that dam- ages would be inadequate to meet the case. As to this, see TJie FialtinonyerH Coinpann v. Rohevtson (/) ; Ecclesiastical Commissioners v. Mcrral (J) ; Mayor of Kldder)in)istcr v. Hardicich [h). 3. Agreements not under seal may be made by certain corporations in accordance with statutory powers. The Companies Act, 1867 (/), as regards com- jmnies dealt with by the Act, enacts as follows : (i) any contract which, if made between private persons, would by law be required to be in writing and under seal, may be made, varied, or discharged under the common seal. (ii) If the contract, as between private persons, should be in writing and signed by the parties to be charged therewith, it may be made, raised, or discharged in writing, and signed by any joerson under the express or imjilied authority of {h) Aarency, 353. (0 5 M. & G-. 131. (/) L. R. 4 Ex. 162. (k) L. R. 9 Ex. 13. [l] 30 & 31 Vict. c. 131, s. 37. CAPACITY TO CONTRACT. 37 the company, (iii) If, as between private persons, i the contract might be made by parol only, not re- ', (luced into writing, it may be made, varied, or dis- charged by j)arol by any person acting under the •express or implied authority of the company (;;?). I The above deals with the method of contracting, but a corporation is also limited as regards the natm'e of the agreements into which it may enter. There are two theories, says Mr. Pollock (;/), one, that a corporation may enter into any contract except such as by its constitution it is expressly forbidden to make ; the other, that it may incm' only such •obhgations as it may have express power to do. The present state of the law seems to be rather like a •compromise between these two theories. In the case •of companies incorporated imder the Act of 1862, no •contract is good which is not expressly covered as to its extent by the powers in the memorandum of asso- ciation ; but in general it would seem that a cor[io- ration has the same power to contract and subject to the same restrictions as a natural person (o). Miscellaneous Cases. A havri^iter (and until 1858 a physician was in the same position) cannot sue for his fees. An alien enemy is incapacitated during the con- tinuance of a war. Foreign sovereigns and states may contract, but the (/») See 8 & 9 Vict. c. 16, s. 97, and 7 Geo. IV. c. 66, as regards •contracts of companies within these statutes. (w) Contracts. (o) See Ashbury Carriage Co. v. Riche, L. R. 9 Ex. 224 ; and L. R. 7 H. L. 053 ; Ashbimj v. Watson, 30 Ch. Div. 376 ; In re JFaurc Electric AccuDiulat^r Co., 40 Ch. D. 141. 38 GENET? AT, VIEW OF THE LAW OF CONTRACTS. contract cannot bo enforced against tliem, unless, they consent. The same applies to ambassadors (y). Felons. — Their contracts are enforced by an ad- ministrator appointed by the Crown, as they them- selves are, ponding theii- incarceration, incapable (s). E.IGHTS AND Duties under the Contract. Who may enforce them. The first point to consider is — Who may enjoy the- rights, and who may be put under liabilities on the contract ? The general rule is clear, that only those who have entered into the contract are able to take advantage of it, or to bo boimd by it {a). Thus, if A. agree Avitli B. that C. is to have 100/., C. cannot enforce the papnent, nor can B., by contract with A.,. bind C. to do anytliing. There has been some doubt as to the prevalence of this rule in equity (i), but this has of late years been removed by the decision in Ek'i/ V. The Positive Gocernmcnt Seeurit// Life Assurance Co. (c). A recent case is that of Browne v. La Trinidad {(l), where an agreement was entered into between B. and the trustee of an intended com- pany, by which B. was to be appointed an iiTcmov- able dii-ector. When the company was formed, thi& agreement was said to have been incorporated in the articles, but it was held that even if that were so, the (y) See 7 Anne, c. 12 ; and Hall's International Law, 141. {z) 33 & 34 Vict. c. 23, s. 8. (a) Frier v. Easton, 4 B. & Ad. 433. If the contract is -w-itli several, this prevents one suing for the benefit of all. Chaiitrr v. Icfise, 4 M. & W. 295, 312. (b) Touche V. Metrop. Warehousing Co., L. R. 6 Ch. 671. \c) L. R. 1 Ex. D. 88. {d) 37 Ch. D. 1. RIGHTS AND DUTIES 1 XDP:U THE CONTRACT. 39 articles amounted to a contract only between the shareholders, and that B. could not sue the company, as he had no agreement with it. It might seem that the case of contracts made by an agent is an exception to the rule, but this is not so. An agent is practically the principal, qui facit per ((liu)u facit per se, or rather we might say, facit ipHp; and this would have enabled Browne, in the above case (e) , to have recovered, but that the com- pany not being in existence when the trustee con- tracted, there was no principal, and therefore no agency. [But though no contractual obligation can be cast upon a person by a contract to which he is a foreigner, yet it seems that a duty may be tlirown on him to respect it, and not to use his influence against it. In LiDiiIeij V. Gijc (/), a singer engaged to sing at a particular theatre, and the defendant induced her to break the contract. The majority of the Coiu't held that an action would lie for procm'ing a breach of the contract. This case has been criticised, but Boivcn V, nail [g] supports it. The action, however, is not one of contract, but of tort.] Assignment. — In many cases the contract may be assigned, and then its rights and duties go with it accordingly. Such assignment may take place by act of laic, or bj/ act of parties. Examples of the former are (1) the passage of a wife's contracts to her husband {//) ; (2) of a bankrupt's contracts to his (e) Browne v. La Trinidad, supra. If) 2 E. &B. 216. (y) 6 Q. B. D. 333. (/i) ulnte, p. 30. 40 GENERAL VIEW OF THE LAAV OF CONTRACTS. trustee (?) ; (3) of the deceased's contracts to his personal representatives {j) ; (4) of covenants running with the leasehold and reversion (/.) . Assignment by act of party is divisible into (1) as- signment of riglits, and (2) assignment of duties. Assifjnment of rightt^. — At common law this could be done only with the assent of the debtor, or in ac- cordance with the custom of the law merchant (/). In equity, assignments were allowed if accompanied by consideration and notice to the debtor. Now the point is regulated by the Judicatm^e Act, 1873, s. 25 (6), in accordance with which a contract may be assigned if (i.) it is absolute, and not by way of mortgage, /. <\, it must be a complete assignment, out and out; (ii.) if the assignment is inwTiting; (iii.) if the notice to tlie debtor is in ^vTiting. The contract as assigned is subject to any rights of thuxl parties, or to counter-rights of the debtor {e.g., set-off), or, as it is exj)ressed, is " subject to equities wliicli would have been entitled to priority over the right of the assignee." Transfers of policies of insm*ance, shares in com- panies, debentm-es, &c., both as to the rights and duties thereunder, are dealt with by separate Acts of Parliament. In any case other than the above, the assignment is not good, and an action on the contract must be brought in the name of the original contractor. (t) Post, p. 343. [j) These are exclusive of such as relate to purely personal ser- vices, rights and liabilities. Baxter v. Burfield, 3 Str. 1266. {k) Spencer's case, 1 S. L. C. 68; Conveyancing Act, 1881, 88. 10, 11. {I) See remarks of Martin, B., in Liversidge v. Broadbent, 4 H. & N. 603, 610. RIGHTS AND DUTIES UNDER THE CONTRACT. 41 Assignmoit of duties. — This is not allowed, except with the consent of the pai-ty to whom the perform- ance is due. A new contract must he made, and the first party must get his release, otherwise the rights and duties remain as they were. The exceptions to this are mainly statutory, but, in case of contracts concerning land, certain liabilities run with the land [m). [A distinction must be drawn between assignability and negotiability. Negotiability implies (a) that the contract may be passed from hand to hand without any notice to the party under liability ; (b) that the bona fide holder of a negotiable contract holds it free fi'om any defects in title, and not subject to equities. As to the law on this subject, see the Chapter on Negotiable Instruments (>?).] The Rights and Liabilities. These are, generally speaking, on the one hand, to have the contract performed, and, on the other, to be obliged to perform. This performance should be complete, and, according to the legal effect of the agreement, e.g., an agreement to pay a sum of money is not performed b}" mere readiness to pay, the debtor must go to his creditor and offer to pay (o). If the agreement is susceptible of performance in several ways, the least onerous is presumed, unless the general terms of the an-angement point otherwise ; if no time is named, a reasonable time is to be inferred. The particular performance may be waived, and (>«) See above, note (A). (n) Post, p. 161. {n) Co. Litt. 340; Cranley v. Hilary, 2 M. & S. 120. 4'^ GENERAL VIEW 01' THE T.AAV OF CONTRACTS. another substitiited, in which case, if the creditor gets in this renovated contract what he bargains for, the new performance or promise is a satisfaction of the old contract. This is said to amount to accord and ■saf is fact ion. Thus, giving a hill of exchange instead of ready money may suffice, if the creditor agree to take it, but if he take it subject to its being honom'ed, and it is dishonoured, there is no accord and satisfac- tion, but merely accord without satisfaction, and this will not be a good substitution for perform- ance {p). To an action for non-performance there are various defences, but these, as a rule, arise out of circumstances such as are sufficient to avoid the an-angement, and will therefore be dealt with under Termination of the Contract {q), e.g., impossibility. But set-off is not of such a nature. This is a right on the part of one party, who is bound under a contract towards another, to set-olf a coiTesponding liability upon the side of that other party, as counterbalancing the want of performance of the contract sued upon. Its natm'e, &c., is more properly dealt with under procedure, but so far as concerns its effect on Contract Law, see Chitty's Contracts, p. 544. Payment. This may be defined as the performance of a con- tract by delivery of money or of some negotiable {p) There miist be cousidcration for the arrangement ; there- fore, a promise to pay a smaller sum instead of a larger, is not good satisfaction. See ^w^f, pp. 15 and 16. As to this whole sub- ject, see Chitty's Contracts, p. 708 ; Comyns' Dig. Accord. (B.) 4 ; Good V. Cheeseman, 2 B. «S: Ad. 335. {g) Fost, p. 64. RIGHTS AND DLTIES UNDER THE CONTRACT. 4-3 instrument. It may be of two kinds — either absolute or conditional ; e.g., A. owes B. 20/., he may pay this in gold, or by bill ; if B. takes the gold or tlie bill in payment, this is full satisfaction ; if he take the l.)ill subject to its being taken up at matimty, this is conditional (r). Method of Faijment. — A debtor is bound to seek Ids creditor, and cannot claim to take time until demand has been made. This, of course, may bo varied by special agreement, and then, in addition to the demand, the debtor is entitled to an allowance of a reasonable time to enable him to fetch the money (.s). "When pajTiient is made, the whole amount should be tendered (^), and without any objectionable condi- tions, but it may be paid under protest (?r). The amount must be paid in a manner consistent with the Coinage Act, 1870, in accordance with which tho following is legal tender — (a) gold coins up to any amount ; (b) silver coins not over 40.s. ; (c) copper coins not over one shilling. By the Act 3 & 4 Will. IV. c. 98, s. G, Bank of England notes are legal tender for all siuns in excess of 5/., if the notes are payable on demand to bearer, and if the bank actually pays such notes in current legal coin. Further, the exact amount must be produced, as a creditor cannot be compelled to give change {p) . But in all the above examjiles, the creditor may waive his strict rights, and on slight evidence the (r) Itolnnmn v. Itcad, 9 B. & C. -15-3. (a) Masse>i V. S/adcii, L. K. 4 Ex. lo. (t) See below, p. 50 ; Clarke v. Dixon, 5 C. B. 365. (m) Scott V. TJxbridge Rail. Co., L. R. 1 C. P. 596. \v) Betterbee v. Davis, 3 Camp. 70. 44 GENERAL VIEW OF THE LAW OF CONTRACTS. Courts would probably infer that lie liad done so; e.(j., a debtor offered to pay in country notes; the creditor objected on the ground of insufficiency of amount only ; it was held that here the creditor waived his right as to the quality of the tender (r). If the j)ayment be made in accordance with the direction of the creditor, the debtor is not to be blamed if the money be lost, or if there be any want of formality in the method indicated, <\ g., a creditor sometimes directs his debtor to pay into a certain bank, if after the payment the bank fails, the debtor is free as though he had paid the creditor dii^ectly (»'). But the debtor should be careful strictly to carry out the directions given ; thus, if asked to send by post, he shoidd not send by a commissionnaire {x). The following are examples of payments good, though not made in the usual way ; an order on a third person to pay to the creditor, the payment may be complete though the creditor, without consulting the debtor, arrange special terms with the thii-d party {>/) ; money paid by con- sent of the creditor for his benefit by the debtor (z) ; payment in goods according to agreement (a). A payment is made, and must be accepted, accord- ing to the wish of the payer {h), and if money be sent upon express terms, the creditor will, in the absence of strong evidence, be estopped denying the terms (r) Pohjglass v. Olivrr, 2 Cr. & J. 65. (w) JSi/les V. J^l/is, 4 Bing. 112. (.r) Uaivkins v. liutt, Peake, 186, 248. Ill) Smith V. Fcrrand, 7 B. & C. 19, 24. (r) Waller v. Andrews, 3 M. & W. 312, 318. («) Cannan v. Wood, 2 M. & W. 465, 467 ; but see the Truck Act, 1887, as regards workmen. [b) See remarks of the judges in Croft \. Liimley, 5 E. & B. 648, 682, which, however, relate more particularly to appropriation of payments. RIGHTS AND DUTIES UXDEIl THE COXTllACT. 45 Upon which it has been paid. Thus, payment of rent to (late followed by a receipt of an unqualified kind, "will bo conclusive against a landlord in a suit for arrears. The latest consideration of this point is in I Day V. McLcci (r) , where a creditor received a cheque '' in full of all demands," and accepted it " on ac- count." It was lu'ged that he was estopped denying it to be a full payment, but the Court held that the question was one of fact, and that no presumption of law existed hostile to the creditor. Pai/mciit hy Bill or Note. — In the absence of stipu- lation payment by bill or note is conditional, and if the instrument is not taken up, the original liability revives ; but evidence is admitted to show otherwise, and the question is entii'ely one of fact {d). If the buyer offers cash, but the vendor prefers a bill, the payment is absolute, and all right of action goes until the bill matures {e). The same does not apply to a cheque, this being treated as a form of ordinary cash payment. If the bill is dishonoured, the creditor may sue for the price, but he must account for the whereabouts of the bill, otherwise the debtor might have to pay twice over (/). Who may pay. — It is the duty of the debtor to pay, but a third i:)arty may do so for him. In this latter case, the debtor should either give his authorization or ratification {(j) , though either may be implied from the facts. Until such affirmation b}" the debtor, the (c) 22 Q. B. D. 610. (d) Gohlshade v. Cottrcll, 2 M. & W. 20. (e) Coicaf:jee Y . Thompson, 5 Moo. P. C. 165. {/) Price V. Price, 16 M. & W. 232. [g) Simpson v. Eggington, 10 Ex. 845, 847. 40 GENERAL VIEW OF THE LAW OF CONTRACTS. money may he repaid to the payer, and then the original debtor's liability does not cease {//). To iohom payment may he made. — The payment should be made to the creditor, and if there are several creditors, then to any one of them. If one of several creditors collusively with the debtor forgives the debt, the release may bo set aside by the Coui't. Payments may be made to the creditor's agent, if made (i) in and according to the usual course of business (/), and (ii) before the principal gives notice that he requires payment to be made to himself (y). In the latter case payment can be made to the agent only when he has a lien on the goods, e.y., in the case of a factor, in which case payment to the principal is of itself no defence to an action by the agent (/.■) . The following are examj)les of payments : — To a factor — good (/) . To a broker — bad {jn). To a person sitting in an office and apparently having charge of the business — good (;<'). To an auctioneer — it dej)ends upon the con- ditions (o). To a wife (before the Married Women's ProjDcrty Act) — bad (^;), unless she had special authority. (/<) Walter v. James, L. R. 6 Ex. 124. (i) Saunderson v. Bell, 2 C. & M. 304 ; Catterall v. Eindle, L. R. 1 C. P. 186; and sae post, pp. 141, 144. (./) Gardner v. Davis, 2 C. & P. 49. (k) Williams v. Milluigton, 1 H. Bl. 81 ; Robinson v. liutier, 4 E, & B. 954. (l) Fish V. Eempton, 7 C. B. 687. (/;?) Baring y. Corrie, 2 B. & Aid. 137. («) Barrett v. Leare, M. & M. 200. (o) Sgl-es V. Giles, 5 M. & W. 645. Ip) Offieij V. Clay, 2 M. & G. 172. RIGHTS AND DUTIES UNDER THE CONTRACT, 47 To a wife (since the Married Women's Property Acts) — good, as to lier separate estate (q). To a solicitor producing a deed having the receipt for the consideration money in it or indorsed on it, and executed or signed by the person entitled to give a receipt — good (/•). To trustees — good, if receipt in ^vTiting is oL- taiued (s) . Approjjriafion of j^oi/'iio^fs. — If a debtor owes more than one debt to a creditor, and makes a payment insufficient to satisfy the whole, the money is appro- priated as follows (/) : — 1. To whichever debt the debtor desires. 2. If he does not elect, the creditor may do so. 3. If neither elects, to the debt of longest stand- ing. If the debtor pays, appropriating to one debt, the creditor is deemed to have accepted it on those terms unless he actually refuses acceptance. " There is an established maxim of law that, when money is paid, it is to be applied according to the expressed will of the payer, not of the receiver. If the party to whom the money is offered does not agree to apply it according to the expressed will of the party offering it, he must refuse it, and stand upon the rights which the law gives hun '\>(). The appropriation may be by word or by conduct, e.g., if a debtor owes two debts, one of £30 and another of £37 10s., and pays the (q) 1S70, 8. 1 ; 1882, s. 2. (r) Conveyancing Act, 1881, s. 56 ; and see Da>/ v. JVoohc'ich Equitable Building Society, 68 L. J. Ch. 280. («) Conveyancing Act, 1881, s. 36. {t) Clayton'' s Case, 1 Mer. 572. (\C) Campbell, C. J., in Croft v. Lumley, 5 E. &: B. 648. 48 GENERAL VIEW OF THE LAW OF CONTRACTS. latter sum, it will be presumed that the latter is the debt intended to be paid {v). The creditor may appropriate when the debtor has not done so, but the debtor must jfirst have had an opportunity of electing ; so if a debtor's money come to a creditor's hands, the right of the latter to apply it to a particular debt will arise only after the former has had knowledge of the circumstances (?r). The creditor's appropriation is revocable till communicated ; so if he enter a payment to a certain debt, he can afterwards alter this, unless he has disclosed the account {j-). " If the debtor does not appropriate it, the creditor has a right to do so to any debt he pleases, and that not only at the instant of payment, but lip to the very last moment "(//), There is in this respect no difference between a specialty and a simple contract debt, and one debt may be the one, another the other. If the debt really exists, the creditor may appropriate the payment to it, though the right of action be gone; e.(j.,?i contract barred by the Statute of Limitations (c), or even though it were incurred on an illegal consideration {a) ; but the debt must really exist, the contract on which it is founded must not have been void (h). Where there is an account current between the parties, e.g., a banking account, the general rule is (r) 3rarryattY. White, 2 Stark. 101. («') Waller v. Lacy, 1 M. & G. 54. (.r) Simsoii t. Ingham, 2 B. & C. 65 ; Mills v. Foiches, 5 Bing. N. C. 455. (y) Blackburn, J., in The City Discount Bank v. IIcLean, L. R. 9 C. P. 692, 70U. (z) Mills V. Fotvkes, ubi supra. {a) Ibid. {h) Lamprell v. Guardians of Billericay Union, 3 Ex. 283, 307 ; Wright V. Laing, 3 B. & C. 165. RIGHTS AND DUTIES UNDER THE CONTRACT. 49 that payments are to be put in reduction of the earlier items of debt (r). "If there is nothing to show a contrary intention, the items of credit must be appro- priated to the items of debit in order of date "{d). Tliis, however, is but a presumption, and it may be rebutted by evidence showing a contrary intention. •' A particular mode of dealing, and more especially any stipulation between the parties, may entii'ely vary the case " (e). To avoid the general rule all that is required is to break the account and open a new one — make two or more accounts instead of the one general and current (/). JReceipts. — A receipt is the best evidence of payment, but it is not the only evidence, nor is it, unless under seal, conclusive in favour of the payer; e. g., mistakes may upset it (g). It has been doubted whether or no a receipt can be demanded as of right, the later cases being in favour of the debtor (A) ; the better course is for the jiayer to bring a stamped paper, and to demand the signature of the payee ; if after that the creditor refuses, the debtor may probably treat the oifer as a tender (/). It would seem that, ac- cording to the Stamp Act, 1870, ss. 120—123, the duty of stamping is thrown on the creditor ; this will not compel him to give a receipt, but only to stamp it, if it is given. The requii-ed stamp is Id., (c) Clayton'' s case, nil supra ; Boddmham v. Furchas, 2 B. & Al. 39. {d) Lord Blackburn in City Discount Co. v. McLean, uhi supra. {e) Heyinikcr v. Wigg, 4 Q. B. 792. (/) Remarks of Lord Selbome, in In re Sherry, 25 Ch. D. 692. Ig) Cliitty's Contracts, 694. (h) Richardson v. Jackson, 8 M. & W. 298. («■) Laing v. Mender, 1 C. & P. 257. M. E 50 GENERAL VIEW OF THE LAW OF CONTRACTS. unless the payment is under 2/. ; as to tliis, see later, under Stamps (j). Tender. J Tender is as mucli a performance of tlie contract as actual payment, and is a complete answer to an ': action, thougli in practice the money should be paid 1 1 into Court with a defence alleging the tender. It may be made by the debtor, or b}" somebody for him, and to the creditor, or to somebody authorized by him (k) . The full amount (/) or more must be pro- duced in good legal money {m), and no change can be demanded. It must also be unconditional, but it may be made under protest ()i). And lastly, the debtor must actually produce the money, unless pre- vented by some act of the creditor, f. g., when the creditor said, " Do not j^roduce it : I will not take it if you do," the Court held the tender good (o). Right to Interest. There is no implication at common law of an agreement to pay interest, except in the case of certain commercial instruments, e.g., bills of exchange (p). Thus, for example, interest will not, in the absence of agreement, be allowed on the following : money on deposit at a banker's {q), a guarantee (r), an (j) Post. p. 3S6. (A-) See Chitty's Contracts, 732, 733. (I) Dixon V. Clarice, 5 C. & B. 365 ; Cotton v. Goodwin, 7 M. & W. 147. (m) See ante, p. 43. (w) Scott V. Uxbridgc Bail. Co., L. E. 1 C. P. 596. (o) Douglas v. Patrick, 3 T. R. 683. \p) Even this is dovibtf ul ; see Esher, M. R., in Ex parte Char- man, W. N. 1887, 184 ; and see the BUls of Exchange Act, 1882, s. 57. {q) Edwards v. Vere, 5 B. & Ad. 282, 285. (r) Hare v. Richards, 5 Bing. 254. RIGHTS AND DUTIES UNDER THE CONTRACT. 51 account stated for goods sold (s) . Exceptions to the rule are found in the cases of money due on awards {t), and on bonds (w), and, as against his principal, on money paid by a surety (x). Comi3ound interest is never allowed, unless by ex- press or implied contract {//). But in the following cases simple interest is chargeable : — (1) Where there is an express or implied agree- ment. (2) Wliere the usage of trade allows it. (3) By statute 3 & 4 WiU. 4, c. 42, where the debt is a sum of cei-tain amount, the jmy may grant interest as damages, provided that the debt is payable on a fixed day, and that the contract is in writing, or provided there has been a '\\Titten notice by the creditor de- claring an intention of charging interest. (4) On a judgment debt interest runs at four per cent, until the judgment is satisfied (~). Thus, " interest can be demanded only in vii-tue of a contract, express or implied, or by vii'tue of the principal money having been TVTongfiilly withheld, and not paid on the day when it ought to have been paid." (Lord Westbmy, in Caledonian Raihcay v. Carmichael {a).) (s) Chalie v. Duke of Yorl; 6 Esp. 45. AUter, apparently for money lent. Blancy v. HendricJcs, 2 Bl. 761. [t) Johnson v. Burrant, 4 C. & P. 327. {u) Hogan v. Page, 1 B. & P. 337. {x) Petrie v. Dnncombe, 20 L. J. Q. B. 242. (y) Fergusson v. Fyfe, 8 C. & F. 121. {z) 1 & 2 Vict. c. 110, s. 17. (a) L. R. 2 Sc. App. 56, 66. e2 52 GENERAL VIEW OF THE LAW OF CONTRACTS. Rights when the Contract is broken. Upon breacli of contract there is always a riglit of action for damages, and in many cases, also, there is a right to rescind. If the contract as a ichole is broken, the injured party has four remedies : (a) he may treat it as a discharge, refuse to perform his part, and resist successfully any action brought upon the contract ; (b) he may bring a claim for damages either by an action of his OAvn, or by way of counter- claim in an action against him ; (c) he may, if he has performed any part of the agreement, bring an action for an amount equivalent to the work done. This is called suing on a " quantum meruit,^^ and the claim should be co-extensive with the work done (c) ; (d) in certain cases he may bring an action for specific performance. If the non-performance goes only to a part of the contract, the rights of the injm^ed party are much more difficult to determine. If the non-performance of a particular portion of a contract {e. g., that goods of a merchantable quality shall be supplied (<■/)) be^ so far, of the very essence of the contract as to imply a virtual failure of the consideration, then there is a right of rescission, otherwise the remedy is in damages {e). " The rule of law ... is that, where there is a contract in which there are two parties, each side having to do something ... If you see that the failure to perform one part of it goes to the root of the contract, goes to the foundation of the whole, it {c) Farnsworth v. Garrard, 1 Camp. 38 ; Flanchc v. Colhurne, 8 Bing. U. {(l) Laing v. Fidgeon, 6 Taimt. 108. [e) See notes to Pordage \. Cole, 1 Wm. Saund. 548. RIGHTS AND DUTIES UNDER THE CONTRACT. 53 is a good defence to say, ' I am not going to perforin my part of it.' . . . But Mr. Cohen contended that whenever there was a breach of contract at all ... it necessarily went to the root of the matter. I cannot agree with that at all" (/). Frequently it happens that the contract is easily divisible into various stipulations, e. g., to deliver cargo at certain stated intervals, on 1st March, 1st April, and so on, in which case, in the event of breach of one of them, the general ride is that the remedy must be by action. If, however, the parties expressly agree that breach of a single term shall entitle the other party to rescind, the general rule is inapplicable (■) Page 547. 56 GENERAL VIEW OF THE LAW OF CONTRACTS. " 2. Wlien a covenaut or promise goes only to part of the consideration, and a breach of it may be paid for in damages, it is an independent covenant, not a condition. " 3. "Where the mutual promises go to the whole consideration on both sides, they are mutual condi- tions precedent. " 4. Where each party is to do an act at the same time as the other, as where goods in a sale for cash are to be delivered by the vendor, and the price to be paid by the buyer, these are concurrent conditions, and neither party can maintain an action for breach of contract without averring that he performed or offered to perform what he himself was bound to do. " 5. Wliere from a consideration of the whole instrument it is clear tliat the one party relied upon his remedy, and not upon the performance of the condition by the other, such condition is not a con- dition precedent. But if the intention was to rely upon the performance of the promise, and not on the remedy, the performance is a condition precedent." On the whole, the rule may, with tolerable accuracy, be put shortly thus : — If the contract is indi^'isible, or if it is broken as a whole, there is a right of rescission, in addition to a right of action. If it be divisible, and only part of the terms are broken, there is a right to rescind whenever the term broken amounts to a condition, or whenever the breach of the one term is accompanied by acts or words showing an intention no longer to observe the remaining terms. In every other case, the remedy is by action. EIGHTS AND DUTIES UNDER THE CONTRACT. 57 Subject to the above, the renunciation of a contract by one party entitles the other to discharge, and he may sue at once, and this though the time of per- fonnance has not yet amved. For an example see Hochster v. De la Toi(r{s), where plaintiff on the 12th April was engaged to act as carrier to the defendant, the emplojTiient to begin in June. In May the defendant wrote to inform plaintiff that his services would not be required, and at once action was commenced, although June had not arrived. It was held that the action would lie. " AMiere there is a contract to do an act on a future day, there is a relation constituted between the parties in the mean- time by the contract, and they impliedly promise that in the meantime neither will do anything to the prejudice of the other inconsistent with that rela- tion "(0. Renunciation during performance will have a similar effect. In Cort v. T/ie Amhergate Rail. Co. (i(), the plaintiffs agreed to supply the defendants ■^ith 3,900 tons of railway chairs at a certain price, the chairs to be deUvered in certain quantities on certain dates. These were partially delivered when the defendants said they would take no more. It was held that an action could be brought at once, \\'ithout sho'sx'ing an actual dehvery, mere readiness to dehver being sufficient. Lord Campbell said, '' when there is an executory contract for the manu- facturing and supply of goods from time to time, to be paid for after delivery, if the purchaser, ha\ing (s) 2 E. & B. 678. (t) And see Frost v. Knight, L. E. 7 Ex. 111. («) 17 Q. B. 127. 58 GENERAL VIEW OF THE LAW OF CONTRACTS. accepted and paid for a j)ortion of the goods con- tracted for, give notice to the vendor not to manu- facture any more as he has no occasion for them, and will not accept or pay for them, the vendor having been desirous and able to complete the contract, he may, without manufacturing and tendering the rest of the goods, maintain an action against the pur- chaser for breach of contract." If the one party makes the performance impossible, this also gives an immediate right of rescission and of action. In Lorclock v. Franklyn (v), the defendant agreed to assign his interest in a lease to the plaintiff, but before the date agreed upon for performance arrived, he assigned to another. It was held that the plaintiff could bring an action without waiting the expiration of the time. Bamagcu. — If a sum is named as the amoimt to be jiaid upon breach of contract, it may be either liqui- dated damages, or it may be a penalty. Liquidated damages are an assessment of the amount which, in the o^sinion of the parties, will compensate for the breach, and the Court will, in the event, award this amount of compensation. A penalty is an imposi- tion laid on with a view to secure the performance, and the Courts will order only so much to be paid as will compensate for the loss actually sustained. In determining whether the sum fixed is in the nature of damages, or of a penalty, the Court looks not to the name by which the parties have called it, but to the actual nature of the thing, e. g.^ if the parties fix a very large sum, and call it damages for non- (r) 8 Q. B. 371. BIGHTS AND DUTIES UNDER THE CONTRACT. 59 payment of a small sum, tlie Court will declare it as a penalty (w). If uo sum is mentioned, the amount of damages will be left to tlie decision of a jury or of a judge, and the amount claimed will be styled un- liquidated damages. Damages are assessed in accordance with the following rules : — (1.) The injured party is to be placed as far as possible in his original position (>r) ; (2.) " But the damages should be such as may fairly and reasonably be considered either arising natm-ally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contem- plation of both parties at the time they made the con- tract, as the probable result of the breach of it" {>/) ; (3.) If there is special loss in the contemplation of the parties, damages on this head can be awarded only if there is an actual contract to be responsible therefor (s) ; (4.) Damages may be assessed for prospective as well as inciu-red loss (a). Sjjccijic Perfonnancc. — This is a remedy granted formerly by Coiu-ts of equity, but now by all Courts, where damages of themselves will not be a sufficient compensation. It is used mostly with regard to con- tracts concerning land, but in certain cases the Courts mil compel performance of other contracts. Thus, a contract for the sale of a thing of rare beauty, or [w) See Kemble v. Farrcn, 6 Bing. 147. (.r) Robinson v. Harnian, \ Ex. 855. (y) I{adl('i/Y.£axendale,9'E7!..^-il; Mayne's Damages, pp.10 ct seq. (s) Home v. Midland Rail. Co., L. R. 8 C. P. 131. [a) See Hardy v. Fothergill, 13 App. Ca. 351. 60 GENERAL VIEW OF THE LAW OF CONTRACTS. of one with regard to wliicli there is a fancy value, e.g., heii-looms, will be ordered to be specifically per- formed {})) . But sjiecific i^erf ormance will not be granted unless the agreement is made upon conside- ration, nor unless the Court can supervise the execu- tion, nor if the contract is inequitable. Termination of the Contract. A contract wliich is in existence may be termi- nated in one of the following ways. I. — By Agreement. This may be by substitution of a fresh agree- ment for the original ; it then amounts to accord and satisfaction (see before, p. 42) ; or by icaivcr or release. A release not under seal must be made on good consideration, otherwise it is of no avail (c), but if there is consideration, the exact fonn of words used is not of impoi-tance ; further, if the original contract is under seal, the release must be by deed {d), whereas if the contract is jDarol, it need not, provided it is given before breach {c). After breach, a release, to be valid, must always be given b}' deed {/), except in the case of bills of exchange and promissory notes (•). The statute fm-ther enacts that a written acknow- ledgment by one co-contractor shall be good to renew the remedy as against himself, but against himself alone (r) ; and also it expressly reserves all rights of contractors acquired in consequence of part pajanent of the debt or interest (r), or of part performance. The 3 & 4 WiU. IV. c. 42, s. 5, contains similar provisions as to acknowledgment of debts incm-red on deeds, but barred by the earlier sections of the same statute. An important cpiestion in practice is — What is a a4 sufficient acknowledgment ? ' It appears to be settled that an acknowledgment, to bar the statute, must be in^Jerms so distinct and imqualifiecl, that a promise to pay on request may be inferred (s) . Thus if it be accompanied by a refusal [q) 9 Geo. IV. c. 14. (>•) Sect. 1. («) Stnith V. Thome, 18 Q. B. 134. 64 GENERAL VIEW OF THE LA"\V OF CONTRACTS. to pay (r), or a statement that the debt cannot be sued on {tp), the statute 'will still operate to bar the remedy. The acknowledgment also must be made before action brought (^■) . A further way of reviving the remedy is by part performance or payment of the debt due on the con- tract, but here also the act must be clearly imputable to the contract, and be done in such a way as to show an intention to perform or pay the residue. Thus if the debtor in paying part, showed that he considered himself to be paying all, there being nothing to show that he intended to pay the rest, it was held that the statute was not barred (y). V. — Impossibility. ^ If the contract be to do an jnipossible act, c. g., to touch the sky, it is obviously void ab initio ; and so if the subject-matter has ceased to exist at the time of ' contract (z) . If the impossibility arises subsequently to the i\} making of the contract, it will, in the absence of agreement, be no excuse if in its natiu'e the per- . formauce might have been possible. So in Kearou V. Pearson (r/), a man agreed to deliver a cargo on board in the usual time, but owing to delays caused by ice, the carrying out of this promise was rendered impossible. It was held that this did not put an end (v) Lindley v. Bonsor, 2 Scott, 399, 403; A' Court v. Cross, 2 Bing. 328. {w) Eawcroft v. Lomas, 4 M. & S. 457. {x) Bateman v. Finder, 3 Q. B. 574. (y) Foster v. Baivber, 6 Ex. 839 ; 20 L. J. Ex. 385. {z) Coutourier v. Sastie, 5 H. L. C. 673. (a) 7 H. & N. 386 ; 31 L. J. Ex. 1. TERMINATION OF THE CONTRACT. 65^ to the contract or the condition. So in Jones v. St. John's College (b), a contractor agreed to finish and to do alterations in a certain time. The altera- tions demanded were such as to make it impossible to finish in the specified time, but this impossibility was not admitted as an excuse, the Court saying that he might have made allowance for such an event in his original contract. The following are excepti ons to the above rule : — (i) Where the impossibility is caused by law, e. g.y. if after the contract is formed an Act of Parliament is passed rendering the performance illegal {e). (ii) " When the performance depends upon the continued existence of a given jperson or thing, a condition is implied, that impossibility arising from the perishing of the person or thing shall excuse the performance " (cl) ; e. g., a lady agreed to i^lay at a concert, but was prevented by dangerous illness, and it was decided on the above principle, that no action would lie against her for breach of contract (r). So, an agreement to let a music-hall for four days was held to be terminated when the hall was burned down (/). VI. — Miscellaneous. A contract may be put an end to — (i) by merger, by the substitution of a higher grade of contract, e.g.^ a judgment for a simple debt ; (ii) by bankruptcy, {b) L. R. 6 Q. B. 115. [c) Baily v. De Crespignij, L. E,. 4 Q. B. 180 ; Kcwhy v. Sharpe, 8 Ch. D. 39. {d) Taylor v. CaWwell, 3 B. & S. 826 ; 32 L. J. Q. B. 164. {e) Robinson v. Davison, L. R. 6 Ex. 269. (/) Taylor v. Caldwell, ubi supra. M. P 6G GENERAL VIEW OF THE LAW OF CONTRACTS. SO far as the damage suffered was proveable in bank- ruptcy ; (iii) if the contract be in writing, by an unauthorized alteration in a material part. Fraud and Mistake. A representation is defined by Mr. Benjamin to be *' a statement or assertion made by one party to another, before or at the time of the contract, of some matter or circumstance relating to it "(./'). Such representations may be true or false, and if false may be made with knowledge of their falsity or innocently. If the former is the case, the representation amounts to fraud, if the latter, they may be styled mis- representations. Fraud. No precise definition is given in the English law books; it has been said to include every kind of artifice by which one person deceives aiiother. The elements of which it must necessarily consist are the following {;/): — 1. Aj'iihe rcjn-i snif((tion o f fad . — A mere expression of opinion therefore will be no fi'aud, nor will a de- claration of intention, thus, if a vendor saj^s, " I think that horse worth 10/.," though the statement is knowingly false, no action will lie. If, however, he says, " I gave 10/. for it," this, if untme, would be such a representation as to be the foundation of a fraud. It has been questioned whether mere non- disclosure can amount to fraud. " Mere omission, (/) Sales, p, 545. (<7) See arguments and judgments in Peek v. Berry, 37 Ch. Div. ' 541 ; and in the House of Lords, where the decision of the Court of Appeal was reversed, 14 App. Ca. 337. FKAUD AND MISTAKE. 67 €ven tlioiigli sucli as would give reason for setting aside a contract, is not, in my opinion, if it does not make tlie substantive statements false, a sufficient ground for maintaining an action for deceit "(A), and " there must, in my opinion, be some active mis- statement of fact, or at all events such a partial and fragmentary statement of fact as that the withholding of that which is not stated, makes that which is absolutely false" (i). The rule then seems to be, that if the fragmentary statement made is rendered untrue by that which is not stated, the representation is fraudulent ; otherwise, it is not. 2. A representation l-noicn to he false by the p(uiu \ making it. — But it has been decided, and it is now clear law, that statements made recklessly are to be taken as ,ec[ually fraud ulent with those whose falsity | are known to the ijerson who makes them. 9u-l^>^ ,, The extent to which this is carried has been dif- z*-*^ ferently considered by the different judges. Lord Bramwell says, " I am of opinion .... that to make a man liable for a fraud, moral fraud must be proved against him" (J). And Bowen, L. J., says, "I think it is not brought home to the defendant that it [/.<"., a statement] was made dishonestly ; accordingly though the plaintiff may have been damnified by the weight he gave to the allegation, he cannot rely on it in this action " {k). On the other hand, in PeclcY. Gur)iey{l)y Lord Cairns says, " If there was [misrepresentation], {h) Cotton, L. J., in Arkicyiglit v. Neiobold, 17 Ch. D. 320. (t) Lord Caii-us in Peck v. Gtiyncij, L. R. 6 H. L. 377, 403 ; and see Jessel, M. E,., in Smith v. Chadwijck, 20 Ch. D. 58. (./ ) Weir V. Boll, 3 Ex. D. 238. (Ar) Edqington V. Fitzmaurice, 29 Ch. D. 482, (/) L. R. 6 H. L. 409. f2 > ie^/vu 68 GENERAI- VIEW OF THE LAW OF CONTRACTS. liowever innocent the motive may have been, your lordships will he obliged to anive at the consequences which would properly result from what was done"{m). The most recent case of importance is Peck v. Dcvnj {n). There a company issued a prospectus, stating that it was authorized to use steam power for its tramway cars. As a fact, the consent of the Board of Trade was required, and this consent was refused. The directors pleaded that they had reasonable ground for believing the statement to be true, and Mr. Justice Stirling gave judgment in their fa^oiu' ; this, liowever, being i"" / ivpset on appeal (o)." The following statements of law yJ''/"' were made : " When a man makes a false statement x'^,' to induce others to act upon it, without reasonable V^ji" ground to suppose it to be true, and without taking ■r.^\ care to ascertain if it is true, he is liable civilly as much as a person who commits what is usually called . .- . fraud, and tells an imtruth knowing it to be an un- •V'n , truth" {p). "I take the law to be that if a man /'^ ^--^^^ takes upon himself to assert a thing to be true which ^''^ he does not know to be true, and has no reasonable ground to believe to be true, in order to induce \^ ^. another to act upon the assertion, who does so act y^ . and is thereby damnified, the person so damnified is •- '• ■■' entitled to maintain an action of deceit " (q). And Loj)es, L. J., sums up the law thus (r) : " If a person (m) And see lieesr Jihrr Mining Co. v. Smith, L. E. 4 H. L. 79. _v^ .' ' See Lord Chelmsford to the same effect in IJ'estcrn Bank of Scotland />^ V. Addie, L. R. 1 H. L. Sc. 145, 161. ,* [)i) 37 Ch. D. 541 ; since considered in the House of Lords, 14 ^ -A-PP- Ca. 337, when the House restored the decision of Stirling, J. {o) But see the last note. {p) Cotton, L. J., p. 568. {q) Sir J. Hannen, p. 578. (r) Page 585. Z FRALD AND MISTAKE. 69 makes to another a material and definite statement of a fact which is false, intending that person to rely npon it, and he does rely upon it and is thereby damaged, then the person making the statement is liable to make compensation to the person to whom it is made — Firsth/, if it is false to the knowledge of the person making it; sccondh/, if it is untrue in fact and not believed to be true by the person making it ; thirdly, if it is untrue in fact and is made recklessly, <>.g., without any knowledge of the subject, and with- out taking the trouble to ascertain if it is true or false (rr) ; fourthhj, if it is untrue in fact but believed to be true, but without any reasonable grounds for such belief " (-s). 3, A rej)rcsentation i nten ded to he acted upon hy the party aduajh/ misled bi^it. — " A mere naked falsehood IS not enough to give a right of action, but if it be a falsehood told with the intention that it should be acted upon by the party injm'ed" [it is sufficient] (t). In the case oi Lane/ridge v. Levy (h), defendant sold a gim for the use of a customer and his sons, one of these being the plaintiff. The gun burst and injiu^ed the plaintiff, and this action was brought to recover damages for fraud in describing the gun. It was held that the plaintiff could recover, for the jury having found fi-aud, and the gun being to the defen- (rr) But see Berry v Feeh, ubi sup. (•«) This was not approved of by the House of Lords. In C'ami v. Willson, 39 Ch. U.39, it was TieM tirat Ta^statement as to the value of property recklessly made by valuers, with intent to be acted upon by mortgagees, would amount to a fraud. This is a serious extension of the doctrine. As to whether there need be intention to defraud, see I'olhill v. Walter, 3 B. & Ad. 114. {t) Parke, B., in Langridge v. Levy, 2 M. & W. 519. [u) 2 M. & W. 519 ; and 4 M. & W. 337. 70 GENERAL VIEW OF THE LAW OF CONTRACTS. dunt's knowledge for tlie use of tlie plaintiff as well as for that of the actnal customer, the fraudulent represen- tation was intended to he acted upon hy the plaintiff. A converse case is that of Peek v. Gxn/e// (x), where fraudulent statements heing made by directors, an action was brought by some shareholders wlia were not original allotees. It was decided that no action would lie, as the prospectus Avas intended to be acted upon by original applicants for shares only. The law is, therefore, as stated by "Wood, Y.-C, in Barry v. Croslr// (y) : " Every man must be held responsible for the consequence of a false represen- tation made by him to another, upon which a third person acts .... pro\dded it appear that such false re- presentation was made with the [direct] intent that it should be acted upon by sueli third person in the manner that occasions the injury or loss. The injury must be the immediate, and not the remote conse- quence of the representation made." 4. T/ic rcpre.senfafioii must aetuciUij deceive. — If the promisor is not deceived by, or did not rely on the representation, it is certain that the contract cannot be undone on the ground of fraud (s). Thus, a pm*- chaser did not examine his purchase ; it contained a flaw, which rendered it worthless, and this flaw was hidden. It was decided that an inspection not being made, and the concealment not having prevented the discovery of the flaw, no fi-aud had been perpe- trated {a). {x) 6 H. L. 377. (y) 2 J. & H. 122. \z) Smith V. Chadwyek, 20 Ch. D. 2", and 9 Ap. Ca. 187. {a) EorsfaU v. Thomas, 1 H. & C. 90; Attwood v. Small, 6 CI. & F. 232. FRAUD AND MISTAKE. 71 It has been attempted upon this ground to set up a defence to an action for fraud, "where the plaintiff actually examined the facts, or had an opportunity of so doing. In such a case, if he relied on the representations, the fact that he also looked into the matter will not affect the case ; if he did not rely on them, of course there is no fraud (h). In Redgrave V. Httnl{c), Jessel, M. E.., said that, if the represen- tation was material, it "U'as an inference of law that it induced him to enter into the contract, hut this has been doubted. It is certain, that if statements are made, there is no duty cast on the other party to look into the truth of it. " The rej)resentation once made relieves the party from an investigation, even if the opportunity is aff orded " (r/ ) . Of course, each case must be taken by itself, and circumstances of great suspicion may throw the party upon enquiry. 5. Damage must have been suffere d. — Without tliis the fraud may exist, but no action for damages can be brought in connection with it {e) . Remedies . — A defrauded person has several remedies open to him. He may (i.) rescind the contract, resist any suit upon it, and obtain a declaration that it is void ; (ii.) he may afiii-m it, and bring an action for damages for the fraudulent representation . If he keeps the contract open, he has a right at any time to rescind, unless he allows it to be acted upon and receives benefit under it, or unless third parties have acquired rights in connection therewith. Lapse of (J) Smith V. The Land and House Property Corporation, 28 Ch. D. 7. (c) 20Ch. D. 1. {d) BaggaUay, L. J., in Redgrave v. Ilurd, 20 Ch. D. 23. (e) Tasleij v. Freeman, 2 Sm. L. C. p. 66. iZ GENERAL VIEW OF THE LAW OF CONTRACTS. time will always be construed favourably to afRi-ma- tion. Innocent Misrepresentation. The validity of a contract is, as a rule, not affected 'hy these. At common law, in order to obtain rescis- sion, wilful or reckless falsehood must have been shown. In equity it would have been sufficient to show that the statement was material and false, though not necessarily to the knowledge of the maker (/). And now, so far as regards rescission, the Equitable rule prevails. In Kennedy v. The Panama Mail Co. {g), it was decided that where there had been an innocent misrepresentation, it is not a ground for a rescission, unless it was such as there was a complete difference in substance between the thing bargained for and that obtained, so as to constitute failure of consideration. The facts were, that shares were put for sale, to obtain capital in order to carry out a certain carrying contract. As a fact, that contract, though made, was bad, but the directors were reasonably ignorant of this ; the Court refused rescission of an agreement to take shares (/^). It "will be noticed that this is a decision on the common law : the modern rule would be more lax as regards the materiality. It should be noted that no action for damages will lie for an innocent misrepresenta- tion (as distinguished from a warranty), and that, as a rule, even rescission will not be granted unless the parties can be re-established in their original posi- tion (?■). (/) Jessel, M. R., in Padgrave v. Eurd, 20 Ch. D. 12. (V) L. R. 2 Q. B. 580. - (A) And see BannermaH v. White, 10 C. B. N. S. 844. \i) But see Adam v. Newbiggin, 13 App. Ca. 308. FRAUD AND MISTAKE. 73 There are certain contracts wliicli are of a peculiar nature, in wliicli tlie utmost good faith is required, ■and in the formation of which, the slightest mis- representation, though innocent, will avoid. These are styled contracts uherrimce fidei, and consist of con- tracts of marine and fii'e insm-ance (and perhaps life insurance (y)), contracts for the sale of land, and suretyship, so far as it concerns the relationsliip ■existent between debtor and surety {k) . Frauds on Creditors. — So far as this touches on the law of bills of sale, see later (/) ; and so far as it deals 'with fraudulent preference, see the Bankruptcy Act, 1883, s. 48 (1). The statute 13 Eliz. c. 5, makes void as between the parties all alienations, bargains, and convey- ances, made with intent to delay, hinder, or defraud creditors, unless there be " good consideration " (here meaning valuable consideration), and an absence of iimla Jides on behalf of the person contracting with the debtor. In Twy tie's case (m), the debtor remained in posses- sion of the goods which he had sold, and dealt with them as his O'^ai, this was held to be a fraud on creditors, and being accompanied by other circum- stances of suspicion, the sale was avoided. Mistake. " The rule of law is general, that whatever a man's real intention may be, if he manifests an intention to {j) London Assurance v. IfanscI, 11 Ch. D. 363. Ik) Phillips V. Foxall, L. R. 7 Q. B. 666 : and see post, p. 300. (l) Page 310. (m) 1 Smith's L. C. 1. t 4 GENERAL VIEW OF THE LAW OF CONTRACTS. another party, so as to iucluee tliat other party to act Tipon it, he will be estopped from denying that the intention as manifested was his real intention" (»). ' So if one agrees to buy a cargo coming in a vessel, " The Peerless," and all the time ho means " The Peeress," he is bound nevertheless. But it may liappen that what is apparently a con- tract, owing to mistake is no contract at all ; and here, as a matter of course, there are no rights or liabilities, e.g., when the thing bargained for does not exist (o) ; when there is a mistake as to the person with whom the contract is made (p). A mistake common to both parties as to the subject- matter, may be ground for avoiding a contract ; e.f/., an agreement was made for the purchase of a bar of silver, and on the faith of the report of an expert assayer, a sum of money was j)aid. It turned out that the assayer was in error as to the amount of silver present, and the purchaser, on returning the bar of silver, was held entitled to have his money returned (q) . If there is a mistake as to the identity of the subject-matter, the contract will be avoided, on the ground that the two parties have not been ad idon. Thus, where A. agreed to buy of B. a cargo of cotton, to arrive "ex Peerless from Bombay," and there were two ships which answered this description, the one being intended by A., and the other by B., it was held that there was no contract (r) . If, how- («) Benjamin on Sales, p. 374. (o) Strickland v. Turner, 7 Ex. 208. (jo) £oullo)i V. Jones, 2 H. & N. 564 ; 27 L. J. Ex. 117. (V) Coxv. Prentice, 3 M. & S. 344. (r) Sajles v. Wichelhaus, 2 H. & N. 906 ; 33 L. J. Ex. 160. FRAUD AND MISTAKE. 75 ever, tliey liad both meant the same vessel, but had called it by an erroneous name, the contract would have been good. If the mistake is of such a natm^e as to go to the very root of the contract, or if there is fraud, then the deceived party may rescind ; but if the contract has been part performed, then will arise the question as to whether the other party may claim to be put iu the position he was in before the contract. In the absence of fraud, this will certainly be his right (s) ; and, so it seems, in the case of fraud, " when once it is settled that a contract induced by fraud is not void, but voidable at the option of the party defrauded, it seems to me to follow that, when that party exercises his option to rescind the contract .... he must be in such a situation as to be able to put the parties into their original state before the contract" (f). The above rules are applicable when the mistake is one of fact ; if there is a mistake of law, the rule is ^^ Ignorantia juris neminem excusat" (u). Thus, in Kitchin v. Hau-Jdns (r), the defendant called a meet- ing and proposed a composition, which was accepted by nearly all the creditors The plaintiffs did not consent, but acting under the impression that they were bound by the deed accepted by the required number of creditors, they took their composition. As a fact the deed was void, but the Court decided that the plaintiffs were nevertheless held by their agreement to take less, for their mistake " was no (s) Hunt V. Silk, 5 East, 449 ; Adam v. Xeivblgging, 13 Apj). Ca. 308. {t) Crompton, J., in Clarke v. Dixon, E. B. & E. 148, 154. (m) Bilbic V. Lumk'i, 2 East, 471. \v) L. R. 2 C. P. 22. 76 GEN'ERAL VIEW OF THE LAW OF CONTRACTS. mistake of fact, but only a mistake upon a nice point of law." In equity, and since tlie Judicature Acts equity prevails, the rule is much less strict. James, L. J., in Ex pari e James {w), said that the principle must not be pressed too far ; and the judicial committee have, in their judgment in Danicll v. Sinclair {cc), laid dovm the same. " In equity the line between mistakes in law and mistakes in fact, has not been so clearly and sharply drawn " [as at common law]. A distinction has been taken between mistake caused by ignorance of a general rule of law, and that caused by ignorancjg j)i. sl particular right obtained in accordance mth that general rule, in the latter case the contract not being liable to avoidance. " When the Vfovdjas is used in the sense of denoting a private right, that maxim (y) has no aj)plication. Private right of o^\^lership is a matter of fact; it may also be the result of matter of law ; but if the parties contract under a mutual mistake and mis- apprehension as to their relative and respective rights, the result is that the agreement is liable to be set aside as having proceeded upon a common mistake. Now that is the case with these parties, the respon- dents believed themselves to be entitled to the pro- perty, the petitioner believed that he was a stranger to it, the mistake is discovered, and the agreement cannot stand" (;:). Remedies in cases of Mistake. — At common law the {w) 9 Ch. 614. (u) L. R. 6 App. Ca. 181, 190. (i/) " Jf/norantia jufis haud exciisaty {£) Lord Westbury in Cooper v. Fhibbs, L. R. 2 H. L. 149, 170 ; and see Earl Beaiichamp v. Winn, L. R. 6 H. L. 223. FRAUD AND MISTAKE. 77 remedy is rescission or damages according as to whether the contract is still executory or not, or as to whether the status quo can be restored ; and money paid by mistake of fact may be recovered. In equity there is a right of rescission, or in some cases, of rectification. Wliere the mistake is not mutual, the remedy is rescission, but the Court may offer the other party what the deceived party intended to give, and then uphold this new arrangement. If the mistake is mutual, the Court may amend the con- tract, rectifying it in accordance with the intended terms [a) . Undue Influence and Duress. Undue influence is the improper use of any power possessed over the mind of a contracting J)ai-ty. Duress is actual or threatened violence, or even imprisonment. In either case the law considers that consent is not freely given, and it allows the contract to be avoided ; nor can it subsequently be made good, unless ratified when the party bound is absolutely free from the influence or power. But the duress must be such as to affect a reasonable man, and it must affect his person, or that of his wife or children {b). {a) Faget v. Marshall, 28 Ch. D. 255. \b) On the whole subject, see Chitty's Contracts, 192. ( 78 ) Part II. EULES EELATIXG TO PAETICULAE CONTEACTS. I. Contracts of Sale of Personal Property. Sale is a contract which has for its object the passing of the general property (a) in a given object for a price in money. In this cliapter the sale of personal property alone will be considered, as being of more importance in the mercantile world. The general principles of contract are, of coui'se, applicable, but there are many points peculiar to sales. To its formation is necessary, not only the usual requisites of a contract, but further, there must be a thing the general ownership of which may be passed, and a price. T/tc Thing [b). — If this has ceased to exist there can be no contract (c). If it has not yet come into exis- tence it can or cannot be sold, dependent upon the circumstances. At common law, things were for this 2^m^pose di^ided into those potentially in existence, and those not so ; the former included {e.g.) hay intended to be gro"^Ti on a given field, grapes expected [a) General as distinct from special, e.g., A. has a "watch, he pawns it. A. has the general property in the watch ; the pawn- broker has a special property. [b) Benjamin, Book I. Part I. Chap. IV. [c) Ante, p. 74. CONTRACTS OF SALE OF PERSONAL PROPERTY. 71) on a given tree ; the latter included anytliiug to be afterwards acquired {e.g.) "the grapes on any tree I may buy," or " any chair I may buy within six months." The former could be validly sold, the latter could only be the subject of an agreement to sell. The difference is considerable, for whereas if the goods are actually sold the property passes, if there is but an agreement to sell, it will not pass till the eventual sale {d). When the purchaser obtains goods under the agreement, the sale becomes complete in either case. In Equity, whether the goods are or are not the existent property of the seller, the bene- ficial interest passes to the buyer at the time of the contract. In Hoh-oyd v. Marshall [e), the whole doctrine was considered, and it has since been held, that it is not necessary in equity that the goods should be so specifically described as to be easily identified (/). ThePrice. — Thismust consistof money, else the con- tract is one of exchange and not of sale. If the amount is fixed, this, of course, is the price payable ; if it is not fixed, a reasonable price is to be presumed to have been intended. As to what is a reasonable jirice, see Acebal V. Lev?j {fj), where it was held that a reasonable price did not necessarily mean the market price. As to interest, see before, p. 50. {d) As to the effect of this, see later, pp. 116 et scq. ; and see Lunn V. Thornton, 1 C. B. 379 ; and cases collected in Benjamin on Sales, pp. 79 et scq. (e) 10 H. L. C. 191. (/) Tailby v. The Official Receiver, 13 App. Ca. 523. Beldiny v. Reed, 3 H. & C. 955, to the contrary seems overruled. And see In re Turcan, 40 Ch. D. 5. (y) 10 Bing. 376. 80 RULES RELATING TO PARTICULAR CONTRACTS. Who may Sell. So far as tliis concerns capacity to contract, see autOy p. 25. As a rule, only the owner of goods can sell them and thereby give a good title ; but the following cases- are in this respect peculiar. (a) Sale of Goods in Market Overt. — Market overt in the city of London is held every day except Sun- day, and in every shop where goods are exposed for sale in the ordinary course of the trader's business. In the country, certain days are set apart, by custom or otherwise, on which, at a particular place, market overt is held (a). When goods are sold in market overt, the sale is binding on the true owner, though he neither sold them, nor authorized their sale. But the transaction must have been commenced and ended in open market, e.g., sale by sample will not be sufficient to protect the buyer, unless the bulk be openly sold and transferred there (A) . If the thing^ be sold in a back room, or between sunset or sunrise,, or if there is an absence of bona Jides, market overt will be no protection to the purchaser. If goods are stolen, and the owner prosecutes the- thief to conviction, the property, though sold to an innocent purchaser, reverts to the original owner (c) ; and the same applies when goods have been ob- tained by false pretences (d) . If they have been sold (a) 5 Rep. 83 (b). For examples of what amounts to, and what does not amount to, market overt, see Benjamin, p. 7. (b) mil V. Smith, 4 Taunt. 532. {c) 24 & 25 Vict. c. 96, s. 100. [d) Vihnout v. Bentlt'i/, 12 App. Ca. 471. CONTRACTS OF SALE OF PERSONAL PROPERTY. 81 otherwise than in market overt, the owner can reclaim them, though he has not prosecuted. The sale of horses is subject to peculiar rules by statute (c). (b) Sale of negofi((hIc securities. — These may be sold by a holder, if they really are seem-ities and not for- geries, and the buyer has a good title if he takes bond Jide and gives value (/). (c) A j^ainiee. — He may sell the goods upon default. (d) Agents. — An agent intrusted with goods, or the documents of title to them, may, within the scope of his business, and subject to particular restric- tions, give a good title. As to this, see later under Agency (^). (e) T/ie Factors Acts. — These Acts deal mainly with the rights and liabilities of those taking goods by purchase or pledge from agents, but three sections of the Act of 1889 affect the present subject ; sect. 9 enacts that where any goods have been sold, or have been agreed to be sold, and the vendee obtains the possession of the goods or the documents of title thereto with the vendor's consent, any sale, pledge, or other disposition of such goods or documents by such vendee or his mercantile agent {h) shall be as valid and effectual as if such vendee or other person were a mercantile agent in possession of the goods or documents with the consent of the ven- dor («■), provided that the person to whom the sale (e) 2 & 3 P. & M. c. 7 ; 31 EUz. c. 12. (/) See later under Bills of Exchange. iff) See the Factors Act, 1889 ; and post, p. 154. (A) For the meaning of this, see post, p. 157. (i) Post, p. 155. M.' G 82 RULES RELATING TO PARTICULAR COXTRACTS. or disposition lias been made, has not notice of any lien or other right of the vendor in respect of the goods. By sect. 8 it is enacted similarly that a vendor "who is allowed to remain in possession of the goods or the documents of title, may make a valid sale to a third party who huys without notice. Sect. 10 enacts that if a document of title is la's\'fidly transferred to a person as vendee or owner, and he transfers the document to a hond fide holder, the latter transfer has the same effect for defeating the vendor's lien or right of stoppage in transitu as the transfer of a bill of lading would have for defeating the right of stoppage in transitu. The effect of these sections is to give the ownership of the goods to any person who takes them bond, fide from another, having the control either of the goods themselves, or of the documents of title thereto. It has now been settled that though the original contract of sale may be bad for non-accordance with the Statute of Frauds (/), yet that the innocent purchaser from an apparent owner who holds docu- ments of title is protected by the Factors Act {k). As to what constitutes documents of title, see the Factors Act, 1889, sect. 1 (/). (f) MisccIIancons. — The following, though not owners, may give good titles : — Sheriffs and similar officers who seize by way of execution ; Masters of vessels who sell under stress of circum- stances {m). (j) See later, next page. [k) mtghill V. MasUr, 22 Q. B. D. 364. \l) And^o*;, p. 157. (>«) See post, p. 326. CONTRACTS OF SALE OF PERSONAL PROPERTY. 83 The Statute of Frauds. Two sections of tliis celebrated statute affect sales, (i) The 4tli section, and (ii) the 17th section. The 4th section (a) may affect a sale, inasmuch as the subject-matter may be an interest in land, or the agreement may be not to be performed within the year. (As to what is an interest in land, see Ben- jamin, pp. 106 ef seq.) Suffice it to say that the following have been held not to be such, and there- fore without sect. 4 of the statute : sale of growing crops which are friidus industriales (e. g., potatoes) ; also growing crops which are fructns naturales {e. g., timber) , where it is intended that the f nidus should be severed from the land before the property passes to the purchaser (o). This section has been discussed before [ante, p. 12). A much more important enactment so far as concerns sales, is the 17th section : — " No contract for the sale of any goods, wares, or merchandizes for the price of ten pounds^sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereto lawfully authorized." [n) Tor the wording of the clause, see ante, p. 10. (o) Evans v. Roberts, 5 B. & C. 836 ; Farke v. Staniland, 11 East, 362; Smith v. Surnam, 9 B. & C. 561. In Green v. Marshall, 1 C.,P. D. 35, the Court said that the test is : Do the parties look to deriving benefit from the land, or do they look at it as a mere ■warehouse? See laiery v. FurseU, 39 Ch. D. 508. G 2 84 RULES RELATING TO PARTICULAR CONTRACTS. From this it will be seen, that a contract for the sale of " goods, wares and merchandizes " (and these include all "moveable tangible property" (7;) ) will not be good unless one of the following take place : — (i) part performance, either by way of accepting and receiving the goods, or payment of the price ; (ii) an earnest given ; (iii) a memorandum signed; (iv) price under 10/. Two points of considerable difficulty have arisen : Istly. Is an agreement to deliver at a future time for a price a contract of sale within the statute ? Here the buyer does not acquire a right to the actual chattel till delivery ; he has merely a right in per- sonam until then. Decisions are to be found both in favour of and against the inclusion of these executory agreements, but Loy d T()t{cnh)i''s Act (q) settled the ' question, and provided that the 17th section "shall extend to all contracts for the sale of goods of the value {)') of ten pounds sterling and upwards, not- withstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing I thereof, or rendering the same fit for delivery." 2ndly. ^jben is a contract one of sale, and when one of work and labour done^^ If A. employs a tailor to make a suit of clothes, the tailor supplying (p) See Blackburn on Sales, pp. 9, 10. The following are not included: stocks and shares (e.ff., Humble v. Mitchell, 11 A. & E. 205) ; tenant's fixtures {Lee v. Gaskell, 1 Q. B. D. 700) ; nor any- thing included under Real Property. {q) 9 Geo. IV. c. 14, s. 7. (r) Notejbhat in the Statute of Frauds the -woxdi. price is used. CO^^TRACTS OF SALE OF PERSONAL PROPERTY. 85 materials and labour, is tliis sale or work ? If sale, the statute applies, if work, it does not. There can be little doubt that in this example the contract is one of sale, but more difficult cases arise. In Clay V. Yates, (.s), a printer agreed to print a work, the materials to be supplied to him ; this was decided to be a contract for work and labour, not of sale ; and this decision has been approved, though the following dictum has not. " The true rule is this, whether the work and laboiu? is of the essence of the contract, or whether it is the materials that are found." Again, take the case of a picture to be painted by an artist ; is the contract one for his skill, or for the sale of the picture? Pollock, C. B., thought the former {t), but Blackburn, J., the latter {u). In Lee v. Griffin {u), a dentist brought an action for artificial teeth sup- plied, and the Court decided in favour of sale. " When the contract is one, that a chattel is ulti-| mately to be delivered by the plaintiff to the defen- dant, when it has been sent, then the cause of action If, is goods sold and delivered" (Crompton, J.). "If'* the contract be such that it will result in the sale of a chattel, the proper form of action, if the employer refuses to accept the article when made, would be for not accepting. . . . But if the work and labour be bestowed in such a manner as that the result would not be anything which could properly be said to be the subject of sale, then an action for work and labour is the proper remedy " (Blackbm'n, J.). This rule is the latest laid down by the Bench ; it (s) 1 H. & N. 73 ; 25 L. J. Ex. 237. (t) Clay V. Yates, ubi supra. (m) Lee V. Grijin, 1 B. & S. 272 ; 30 L. J. Q. B. 252, 86 RULES RELATING TO PARTICULAR CONTRACTS. was enunciated by a strong Court, and has been styled by Mr. Benjamin as " a rule so satisfactory, and apparently so obvious " (u) ; it may therefore be considered the safest guide to follow. The requisites of the statute will now be considered singly. 1. Part Payment. — As to this, see Benjamin on Sales, p. 162. " 2. Acceptance and Receipt. — It will be noticed that the statute draws a distinction between acceptance and receipt, and requires both. There may be receipt without acceptance, there may be acceptance without receipt. " Receipt is often evidence of an acceptance, but it is not the same thing " ; e. •) Lord Abinger in Chanter v. Hopkins, ubi supra. CONTRACTS OF SATK OF PERSONAL PROPERTY. 97 Warranties are of two kinds: — (a) Express; (h) Im- plied. (a) Exjiress Warranties, i.e., wlien a warranty is stated in so many words, either in -svriting- or verbally. To these the ordinary rules of construc- tion apply, and the question is generally. What w^as the intention of the parties ? Thus, in Jendwine v. Slade{s), pictures were sold, said to be by a par- ticular artist, it was held that this was a mere ex- pression of opinion ; whereas, in Power v. Bar- ham it), a similar statement being made, it was left to the jury to decide whether there was or was not an express warranty. If the defect, against the existence of which the statement is directed, is so patent as to be apparent on simple inspection, a waiTanty is not inferred, though it may arise from express agreement ; e.g., a man who buys a blind horse, cannot sue on a general warranty of soundness {u). (b) Implied Warranties. — If the warranty is not expressly stated, but the behaviour of the parties, and the general circumstances, are such as to show that it was intended, it is styled an implied war- ranty. Of these, two are important to our present subject, viz., warranty of title, and warranty of quahty. Warranty of title, i.e., warranty that the vendor is in a position to pass the ownership (not the mere, possession) of the goods, is always implied in an ' (.«) 2 Esp. 572. (?) 4 A. & E. 573. {t() Per Bayley, J., in Margctsoii v. fFright, 7 Bing-. 703 ; 8 Bing. 454. As to horses, see Benjamin, pp. 612 et seq. M. II I 98 RULES RELATING TO PARTICULAR CONTRACTS. executory contract ; but in any other case, the law, as decided by authorities, is uncertain. If the vendor expressly states that the thing is liis, then there is an implied warranty of title ; other\\'ise the doubt arises. Coke {v), Chitty {ir), BuUen and Leake (.r), and others, hold that there is no implied warranty, and this view is that of many eminent judges, in- cluding Parke, J., in Morlcij v. AttoiboroiigJi {//). The opposite view is that supported by Benjamin (~), and by the observations of the judge in Eidiolz v. I Banister (a). The result, on the whole, seems to be that there is no warranty, but the exceptions are so many as to " well nigh eat up the rule." Warranty of qualiti/. — As a general rule, no war- ranty of quality is implied, the maxim of English law being caceat emptor, that is to say, that the buyer takes the risk upon himself. But to this there are many exceptions, the chief of wliich are considered below. It may be said at starting, that when an express warranty is given, nothing further can be implied ; also, that when the sale is of an existent thing, which is specifically described, and the con- dition of which can be ascertained by either party, or if the sale is of a thing to be manufactured, which is known, described, and defined, then there can be no implication of warranty {J)) . (i) Co. Litt. 102 a. (!<•) Pago 413. {x) 263, note. \ij) 3 Ex. 500. (r) Page 629. («) 17 C. B. N. S. 70S ; 34 L. J. C. P. 105. (/-) Mellor, J., ia Jones v. Just, L. E,. 3 Q. B. 197 ; 37 L. J. Q. B. 89. CONTRACTS OF SALE OF PEllSONAL TROPERTY. 90 The following are importaut cases in whicli an Implied warranty is found : — (i) Sale hi/ .sample. — The bulk is impliedly stated to be equal to tJie sample (c), and the buyer is en-; titled to see the goods and to examine them before I acceptance (d). Sale by sample does not of necessity take place whenever a sample is sho^^•n, the whole of the circumstances must be looked to, and a decision formed according to these. If a sample is shown, it is impliedly waiTanted free fi"om hidden defects not discoverable by either party on mere inspection. In ^ Heilhutt V. Hickson (e), shoes were supplied in accord- ance with a sample shoe ; it was very important that paper should not have been used for filling in making the sole, and this was known to the vendor, yet many of the shoes contained paper ; when the sample was cut open, it also was found to contain paper ; but it was held that this did not affect the right to rejection, inasmuch as there was an implied warranty against the existence of latent defects in a sample. The goods not being ecpial to sample the buyer may reject them, but he must do this ^^ithin a reasonable time. " The defendant has a right to inspect the goods, and it seems to me that where the sale is by sample, and inspection is to be at some place after delivery, the true proposition is, that if the purchaser on such inspection finds the goods are, in fact, not equal to sample, he has a right to reject them then and there, and is not bound to do more than reject them. [ [c) Azemarv. CascUa, L. R. 2 C. P. 431. (f.l) Distinguish this acceptance from that required to satisfy the Statute of Frauds. Ante, p. 86. ic) L. R. 7 C. P. 438 ; and seeDruminond v. Van Inqen, 12 App. Ca. 284. h2 100 lULES RKLATIiNG TO PARTICULAK CONTRACTS. There are several modes in whicli he may reject them .... but it is sufficient I think .... to signify his rejection of them by stating that the goods are not according to contract, and that they are at the vendor's risk. No particular form is essential " (/). (ii) G oodsm utjed for a particulcw purpos e. — Wlien this is known to the seller, delivery is suj^posed to take place with a warranty that they are fit for the 'intended purpose. " A manufacturer, who agrees to supply goods to order, knowing the purpose for which they are rerpiired, thereby impliedly under- takes to supply goods fit for the pm-pose in view" {g). 33ut this must be qualified to this extent : that if the pm-chaser, although he communicates this know- ledge to the seller, relies upon his own judgment, and not upon that of the seller, the latter is free from any implication of warranty (//). (iii) ^Vlien a manufacturer sells goods of a speci- fied description, which the pm"chaser has had no oj'jportunity of examining before the sale, the goods are impliedly warranted not only to answer that description, but to be merchantable under that de- scription (/) . In Drummond v. Van Ingcn {j), cloth manufacturers obtained an order to make w^orsted coatings of a weight and quality equal to sample, and they knew they were intended to be re-sold to tailors. The stuff supplied was equal to sample, but being "slippery" it was unmerchantable for the (/) Brett, J., in Seilhutt v. Hickson, ubi supra. {(/) Lord Macnaghten in Brttmmond v. Van Incjen, 12 App. Ca. 295 ; and see Jones v. Just, L. R. 3 Q. B. 197 ; Jones v. Bright, 5 Uing. 553. (A) See expressions nsed by Mellor, J., in. Jones y. Just, ubi supra. (t) See cases in the last two notes. (J) [fbi supra. CONTRACTS OF SALE OF PERSONAL TROPERTY. 101 purpose for wliicli it was intended to be used. It was decided that, under all the circumstances of tlie case, this was a defect against which a warranty could be implied. (iv) Wavranfij is often implied by custom, e.g., a sale of sheep as stock was held, by custom, to imply a warranty that the sheep were sound (/.•) . The peculiar form of authority known as the agent's warranty of authority may be mentioned here; but see later, under Agency, p. 144. (b) RigJits upon Breach. When the property in the goods has not_jQassed to "the buyer (/), his r emedy o n non-delivery is an auction for damages, and the measm-e of damages will be such as is usually obtainable in cases of breach of contract [m). Ordinarily, the buyer may recover the difference between the market-price of the day of buying, and the price of the same goods •on the day when the contract is broken. But in addition, the vendor will have to pay such damage as will re-pay for the loss suffered by the buyer owing to his being deprived of the onUnanj use of the chattel («). But the buyer cannot demand com- pensation for extraordinary loss, unless the other party had notice of the special facts. In Home v. The Mid- land Rail. Co.{p)^ the plaintiff had an order to fulfil for which, if completed by a certain day, he was to {h) Jonea v. Boicde», 4 Taiiut. 847, 853. \l) Post, 1). 116. [m) Ante, p. 58. (w) Con/ V. Thames Iron Works Co., L. R. 3 Q. B. 181. (o) L. E,. 8 C. P. 131. This was not a case of sale, but the principle applies. 102 RULES E.ELATl>'Ci TO PARTICTLAK CONTllACTS. receive an extraordinary price ; he gave no notice of tins special contract to the defendants ; owing to their default the goods did not arrive, and it was held that the measure of damages was the ordinary and not the extraordinary loss. If owing to the vendor's failure to carry out his contract, the buyer is unable to carry out a sub-contract, he is entitled to recover from the vendor his costs, &c., of reasonably defending an action against him by the sub-pur- chaser (/)). In case of breach of warranty, w here the proper ty lias not passed, 1h' may — (a) reject; (b) bring an action for damages ; (c) counter-claim in the vendor's action for the price. If the property has passed to the buj^r, the ordi- nary common la^\■ remedy for non-delivery was action for breach of contract ; but in equity the Coiu-t would order delivery of the particular chattel, if damages at law would not be a sufficient recompense (q). By the Mercantile Law Amendment Act, 1856 (r), the jury may, by leave of the judgr, bring in a verdict defining the goods in respect of the non-delivery of Avhich the plaintiff is entitled to a verdict, and then upon his paying the price, the Court may order specific performance. If, when the property has passed, the condition on which the goods were sold is found not to hav e been oj^erved, or if, when they have been bought by description, they do not come up to it, then there is (p) Hammond \. Bnssoj, 20 Q. B. D. 79. [q) Notes to Cuddee v. liutfer, 1 W. & T. Leading- Cases in Equity, p. 907. (r) Sect. 2. CONTRACTS OF SALE OF PERSONAL PROPERTY. 103 a right of rejectio n. If, however, tlie breacli is on e of wajxanty mei'el}', tlien if once the property in the goods has p;issed, he cannot reject them : his action is for damages (s). 2. Elghtii of the Vendor. (a) Before Brcaeh. He may compel the buyer to receive and accept the goods, subject of course to the above rules, and he can demand that they be removed within a reason- able time {f) . If he proffer goods whicb the buyer may lawfully reject, and if the time specified in the contract for delivery has not expired, he may tender others instead. He is entitled to payment ; for which see ante, p. 42. (b) After Breach. If the property in the goods has passed to the buyer, the only remedy is a personal action for the price against him, and tliere is no right of rescission {u) . If the property has not passed, there is a right of action for non-acceptance, and certain rights against the goods themselves ; in the former case the measure of damages being, not the price of the goods, but the actual loss sustained, generally the difference between the price agreed, and the market price of the day {v) . It should be noted that the buyer's bankruptcy, before the time for delivery, does not 2^er se put an end to (s) street v. Blaij, 2 B. & Ad. 456. (t) Buddie V. Green, 3 H. & X. 996. (m) Martindale v. Smith, 1 Q. B. 395. (v) Barrow v. Armnd, 8 Q. B. 604, 608. 104 RULES RELATING TO PARTICULAR CONTRACTS. tlie contract, but the trustee has power to disclaim. (See later, under Bankruptcy, p. 358.) When the goods are to be delivered by instalments, if one instalment is refused under circumstances showing an intention to break altogether, the action for non- accej^ting will lie at once, and that without any necessity of tendering the rest (r) . Retnedies against the Goods. — If the possession, i.e.^ actual physical possession, is in the buyer, all remedy against them disappears; but if the vendor, or his agents, still hold them, there are rights which may be exercised. These are — (i.) Lien ; (ii.) Stoppage in transitu. Lien is the right which a creditor has to hold goods, the price for which has not been paid. The subject is treated more fully in a subsequent chapter (?r). It is the right of every vendor, unless he expressly or tacitly waives it ; e. ej., by sale on credit (.r), by taking security (//), by delivery to buyer or a common carrier (s) . A case of some difficulty arises, when credit having been given, and the lien being thus waived, the goods are nevertheless left in the vendor's possession. If payment is made when due, the case is clear, but if there is default, does the vendor's lien revive ? Mr. Benjamin, after a consideration of the case, has come to the following decision [a) : (a) As between the vendor and the piu'chaser, the former {v) Cort V. Amhcrgatc Rail. Co., 17 Q. B. 127; and see ante, p. 53. («') Fost, p. 317. [x) Spartali y. Benecke, 10 C. B. 212 ; 19 L. J. C. P. 293. [y) Chambers v. Davidson, L. R. 1 P. C. 296. {z) Norman \. FhiUips, 14 M. & W. 276. \a) Benjamin on Sales, p. 764. CONTRACTS OF SALE OF PERSONAL TROPERTY. 105 may refuse to give up tlie goods ; (b) The remedy will not be impaired though the vendor give a docu- ment of title for them, if this is countermanded before the bailee attorns to the buyer ; (c) If the goods have been pledged or sold by the buyer, the vendor loses liis lien if he has parted with the documents of title (b), or if he has assented, expressly or impliedly, to the fiub-sale or pledge (bb). Stoppage in Tratisitu is *' a right conferred on the unpaid vendor of goods to stop them, on the bank- ruptcy or insolvency of the vendee, before they have reached his actual or constructive possession ; and to resume possession, so as to put himself in the same position as if he had not parted with them " (c). The general result of the stoppage is to restore the right of possession to the vendor ; to place him, in fact, in a position similar to that which he has lost by parting with the goods. The sale is not thereby rescinded (f/). "If the original vendor sells when he ought not, they may bring a special action against him for the damage they sustain by such wrongful sale, and recover damages to the extent of that in- jmy ; but they can maintain no action in which the right of property and right of possession are both requisite, unless they have both those rights" {e). The right is more than a mere lien ; "it grows out of [the vendor's] original ownership and dominion. If the goods are sold on credit, and nothing is agreed on as to the time of delivering the goods, the vendee (4) Factors Act, 1889 ; and nee post, p. 318. (bb) See the Factors Act, 1889, s. 8. (c) Maude and Pollock on Shipping, vol. i. p. 414. {d) See Wentivorih v. Out/twaite, 10 M. & W. 436 ; and notes to JLickbarrow v. Mason, 1 Sm. L. C. p. 753. [e) Bayley, J., in Bloxham v. Sandars, 4 B. & C. 948. 106 RXTLES RELATING TO PARTICULAR CONTRACTS. is immediately entitled to the possession, and the right of possession and the right of property vest at once in him ; but his right of possession is not absolute ; it is liable to be defeated if he becomes- insolvent before he obtains possession" (/). The vendor's right is superior even to that of a judgment creditor who has attached the goods (r/^ or to that of a person to whom freight is due, at any rate, under some circumstances {k). A vendor is considered "unpaid" so as to enable him to exercise this right, even when he has received a portion of the purchase-money (/), unless the con- tract is divisible and payment is made in respect of a certain portion, in which case only the portion on w'hich no payment has been made is liable to stop- page (_/). A conditional payment {e. g., by bill) will not take away the right (/), but it is otherwise if security is taken in absolute payment. If there is a balance of account between the consignor and consignee, and it stands against the former, this- probabl}' puts an end to the right of stoppage, but the point seems doubtful [Jc). The person who may exercise the right is the vendor, or his agent who either in virtue of his general position, or of particular instructions, has authority to do so. A voluntary agent, having no (/) Bayley, J., in Blo.rham v. Sandars, uhi supra. Iff) Smith V. Goss, I Camp. 282. (ji) Mercantile ami Exchange Bank v. Gladstone, L. E. 3 Ex. 233. \i) Edwards v. Brewer, 2 M. & W. 375; Feise v. Wray, 3 East, 93. {j) Merchant Banking Co. v. Phoenix Bessemer Steel Co., 5 Ch. D. 205. [k) Vertue v. Jewell, 4 Camp. 31 ; but see remarks in Benjamin, p. 823. COXTRACTS OF SALE OF PERSONAL PllOPEKTV. 107 authority, cannot act in tliis matter, and subsequent ratification is of no avail (/). The right has been extended to meet the case of those who are in the position of qi•). It will be seen, therefore, that it is essential that the goods should have been delivered, at any rate, constructively to the vendee, but that they shoidd not have come in his actual possession (x). In every case an enquiiy must be made into the jiarticular facts, as the question is really one of the intention of the parties (f) ; e. g. {ii), Goods dehvered to a earner qua carrier — transitus continues. Goods delivered to a carrier qua warehouseman for the buyer — transitus ends. But the carrier must have agreed with the buyer to hold for him. Goods delivered to the buyer's servant — transitus ends. Goods delivered to the master of the buyer's ship — transitus ends. When the vendee takes possession of the goods (r) Cave, J., in BctJiell x. Clark, 19 Q. B. D. oGL (s) The ■words delivery and possession are troublesome, but the statement in the text seems borne out by the language of Brett, L. J., in Kendall v. Marshall, 11 Q. B. D. 356. On the other hand, it is in contradiction to Whitehead v. Anderson, 9 M. &; W. 518, and is scarcely consistent with the statement of Mr. Benjamin, p. 847. Perhaps the words "constructive possession" are used differently in the two cases. The subsequent language of Brett, L. J., supports this supposition. [t) See remarks of Jessel, M.. E., in Merchant Bank'mg Co. v. Phwnix Bessemer Steel Co., 5 Ch. D. 205; and of Matthew, J., in Bethellv. Clark, 19 Q. B. D. 557. (ii) See, inter alia. Ex parte Rosevear China Clay Co., 11 Ch. D. 560 ; Oqle v. Atkinson, 5 Taunt. 759 ; Schotsman v. Lancashire and Yorkshire Rail. Co., 2 Ch. 332; 36 L. J. Ch. 361; Sandeman v. Scurr, L. E.. 2 Q. B. 86 ; Berndtson v. Strong, 3 Ch. 688 ; Foster v. Frampton, 6 B. & C. 107. CONTRACTS OF SALE OF PERSONAL PROPERTY. 109 away from the carrier (r), even against the carrier's will, and though the destination is not reached (?r) — transitus ended. When the vendee exercises acts of ownership over them when in the carrier's possession — here also the transitus is generally at an end. If the buyer takes possession of part of the goods, the vendor intending (a) to retain the rest, the right to stop in transitu as to these remains ; (b) not to retain the rest, the right to stop has gone {x). Two further points arise here — what is a sufficien t taking possession ? and what is a destination ? The buyer, according to one conception of con- structive possession, has this immediately the goods are delivered to a common carrier, or to a special earner named by him, but if this is possession, it is not such as to defeat the right of stoppage. For I this there must be actual possession , or "another' kind of constructive possession by the vendee; i.c.^ when the goods have been delivered by the carrier, and have re ached the hands of an agent to the vendee to be held at hi.s disposal "(//) . Actual possession raises no difficulty, but it is often hard to state whether a deliver}' is such as to give a construc- tive possession to the buyer. If it amounts to actual receipt within the meaning of the 17 th section of the Statute of Frauds, such possession will arise. {v) Ex parte Cooper, 11 Ch. D. 68. {w) L. % N. W. Rail. Co. v. BartJett, 7 H. & X. 400 ; 31 L. J. Ex. 92. ix) Jones V. Jones, 8 M. & W. 431 ; Taimer v. ScovelJ, 14 M. & W. 28. ' (y) Brett, L. J., in Kendall v. Marshall, 11 Q. B. D. 356. 110 RULES RELATING TO PARTICULAR CONTRACTS. A leading- case is that of Wlt'dehead v. Anderson [y) ; there the assignee (in liquidation) of the buyer went on hoard a vessel on which was timber consigned to the buyer ; he touched it, and told the captain that be was there to take possession of the cargo, but the captain did not assent to hold them on these terms. It was held that no constructive possession arose in the buyer, and that the right of stoppage did not cease. And generally, if the carrier is not turned into an agent for the consignee, in addition to the duties he owes as a mere carrier, he cannot acquii*e possession for him. If, however, he becomes, with bis own consent, a store keeper for him, he can so acquire. It is not difficult to say when the goods have reached their destination when they are sent direct between consignor and consignee, but there is more uncertainty when the goods, though not yet arrived at their ultimate point, have reached an intermediate place of rest; e.g., A. sends goods to London to be forwarded to Hamburg ; is London or Hamburg the destination ? In Di.wn v. Bcddicen (s), Lord Ellen- borough stated that : " The goods had so far gotten to the end of theu" journey, that they waited for new orders from the pm-chaser to put them again in motion, to eommmiieate to them another substantive destination, and that without such orders they would continue stationary," and this he considered to mark an end to the transitus. Some recent cases illustrate the point, and support the above test. In Ex parte (y) 9 M. & W. 5IS ; Tudor s Leading Cases in M. L., p. 632. (s) 5 East, 175. CONTRACTS OF SALE OF PERSONAL PKOPERTY. Ill Miles [a), an agent in England bought goods for a Jamaica firm, the vendors being aware of the resi- dence of the firm. The agent asked the vendors to send the goods to certain shipping agents at South- ampton for shipment by a certain vessel, and this was done. The "particulars for clearance" were sent, and the vendors asked the shipping agents to forward " an directed,^'' but the name of the consignee and the destination were communicated, not by the vendors, but by the buyer's agent, and the bills of lading described the latter as consignor. The Couit held, so far as related to the vendors' right of stoppage, that the transitus ended at Southampton. Brett, M. R., said: '"As a matter of business, it is impossible to say that [the shipping agents] could properly have shipped the goods for Jamaica without receiviog further orders as to the person to Avhom they were to ship them. The}" were to receive direc- tions from the purchasers as to the person to whom they were to ship them, and the purchasers were to communicate to them another substantive destina- tion. . . . The case, therefore, seems to me to be within the authority of Dixon v. Baldiren " (/>). So in Kendall v. JIar.sI/all {c), it was decided that Avhere goods are sent by an unpaid vendor to a for\v'arding agent, who is instructed as to the ulterior destinaticn by the buyer, the right of stoppage is lost when they reach the agent. On the other hand, in Bethell v. Clark {(I), the buyers pm'chased goods of the vendors, [a) 15 Q. B. D. 39. [b) Ubi supra ; and see I'tdpy v. Gibson, 4 C. B. 837. [c) 11 Q. B. D. 3o6. \d) 19 Q. B. D. 553 ; and 20 Q. B. D. 615. 112 RULES RELATING TO PARTICULAR CONTRACTS. who resided at "Wolverhampton, and sent them a consignment note as follows : " Please consign the 10 hhds. h'ware to the Darling Downs, to Melbourne, loading in the East India Docks. To come up at once." The buyers became insolvent and the vendors stopped the goods, but not till they had been put on board the Darling Doicns. The question arose, was the transit at an end ? and the Courts unanimously decided " No," Esher, M.E,., laying down this prin- ciple " Where the transit is a transit which has been caused either by the terms of the contract, or by the directions of the piux'haser to the vendor, the right of stoppage in transitu exists ; but, if the goods are not in the hands of the carrier by reason either of the terms of the contract, or of the directions of the purchaser to the vendor, but are in transitu after- wards in consequence of fresh _ directions given by the purchaser for a new transit, then such transit is no part of the original transit, and the right to stop is gone " (c). There is no particular form or procediu-e required in the exercise of the right. Simple notice to the carrier is enough, but it must be given to the person actually in possession {e.g., the ship's master), or if to an employer of such person {e.g., shij)owner), then in time to allow the person in charge to be commu- nicated with ; and it has been questioned whether or no there is any duty in the shipowner to communi- cate with his master (/). (c) See also Hx parte Sosevear China Clay Co., 11 Ch. D. 560; Coates V. Bailton, G B. & C. 422 ; Ex 2)arte Watson, 5 Ch. D. 35. (/) Wliitehead v. Anderson, 9 M. & W. 518 ; but see Ex parte Falk, 14 Ch. D. 446 ; 7 App. Ca. 573, as to whether a shipowner can be compelled to forward the information or no. CONTRACTS OF SALE OF PERSONAL PROPERTY. 113 The right to s top in ^/Y/»g;'fa is defeated by a„6ond fide in dorsement for yaliiaiof the bill of lading {g), or other document of title {h). The same effect is pro- duced, whether the transfer be made by the vendee or by a mercantile agent, " entrusted with the bill of lading. ' A bond fide indorsement as pledge of the bill will defeat the right to a certain extent, but to an extent only ; for though the unpaid vendor's right is subject to that of the bond fide indorsee for value, it is subject to that only. If, therefore, the vendee retains any property in the goodSj^,the vendor may exercise liis right against this; e.g., In re Wesfzin- thm ii), L. & Co. were indebted to H. & Co. to an amoimt of 9,217/., and H. & Co. held as security a bill of lading and certain other property ; L. & Co. became bankrupt, and the unpaid vendor stopped the goods ; it was decided that after the payment of H. & Co. the stoppage was good, and that the vendor had a right to demand that H. & Co. should first be paid out of the security other than the goods represented by the bill of lading, and that in the case only of insufficiency of value of such other secu- rity shoidd they come down on the goods. In Kemp V. Falk (J), Lord Blackburn said : " The unpaid vendor's right, except so far as the interest had passed by the pledging of the bill of lading to the pledgee or the mortgagee, wliichever it was, enabled (g) Lickbarroiv v. JIason, 1 Sm. L. C. 753. (h) See Factors Act, 1889, s. 10 : indorsement is not always necessary ; a transfer in a proper form is equally ^ood. (0 2B. & Aid. 817. U) 7 App. Ca. 573; and see Spalding v. Ending, 15 L. J. Ch. 374 ; 12 L. J. Ch. 503. M. I 114 RULES RELATING TO PARTICULAR CONTRACTS. the unpaid vendor in equity to stop in transitu every- thing whicli was not covered by that pledge. That was settled and has been considered law, or rather equity, ever since the case of In re Westzinthus, and has been affirmed in Spalding v. Ruding, and I have no doubt is very good law upon that point." So far has the vendor's right been taken, that it has been held that if the goods have been sub-sold, but that the bills of lading have not been actually indorsed, and if the tnnidtus is not ended, the vendor may stop them (li). A somewhat different result was arrived at in Ex lyartc Golding, Davis 8f Co. (/), in which case it was decided that the unpaid vendor might stop, not the goods, but the unpaid purchase-money payable by the sub-purchaser to the vendee. This was approved by Bramwell, L. J. {in) ; but in the House of Lords, Lord Selborne said : " I assent entirely to the proposition that where the sub- purchasers get a good title as against the right of stoppage in transitu, there can be no stoppage in transitu as against the purchase-money payable by them to their vendor ; at all events, until I hear authority for that proposition, I am bound to say that it is not consistent with my idea of the right of stoppage in transitu that it should apply to anything except to the goods which are in transitu " {n). (k) Rr parte Falk, U Cli. D. 446 ; 7 App. Ca. 573. (l) 13 Oh. D. 628. («0 i:z parte Falk, 14 Ch. D. 457. (n) The remainder of the opinion is well worth reading, as being- a recent authoritative statement on this question. CONTRACTS OF SALE OF PERSONAL PROPERTY. 115 Right to resell. The authorities on this point are not very clear, "but the following rules are deduced (o). (i.) When the right of resale was reserved ex- pressly in tlie original contract, a resale by the ven- dor on default by the pui'chaser rescinds the original sale. (ii.) The vendor's remedy is action for damages ; if the goods fetch more than the agreed-upon price, the buyer is none the better for it, except so far as it may reduce the damages. (iii.) The vendor's remedy after resale, if there was no reservation of a right of resale, is an action on the original contract. He may claim damages for the loss on the resale, or may claim the whole price, in which latter case the buyer may counter- claim for damages for the resale. (iv.) The buyer when not in default cannot con- sider the contract rescinded ; he must bring an action for damage and will have to allow the price of the goods. (v.) A buyer in default cannot maintain trover against the vendor ; if not in default he may, but is liable to a counter-claim for any unpaid piu-chase- money. (vi.) The unpaid vendor may not re-sell the goods without an express reservation of power ; if he does so he is liable to an action for damages which will consist of the difference between the contract price and the market value on the re-sale. (o) These are taken in the main from Benjamin. See authorities quoted on p. 708 and following of Benjamin on Sales. i2 116 RULES RELATING TO PARTICULAR CONTRACTS. Passage of the Property. It is often necessary to determine at wliat exact point of time the property in goods passes to the purchaser, the more especially as the risk as a rule ' lies on the owner : res jyerif domino. The cardinal question is, what is the intention of the parties ? If an answer to this can be obtained, the time of passage is fixed by that answer. It was at one time supposed that in every case of sale in which an earnest was given " there is a good bargain and sale of the thing to alter the property thereof " (p) ; but now it seems the better opinion that earnest is mere evidence, and not conclusive evidence, of the existence of a binding contract (q). Sale of Specific Chattels. — When a given specified thing is sold unconditionally, there is no doubt but that the property passes at the time of sale ; e.g., if I go to a shop and buy a certain book, on the com- pletion of the bargain the book is mine. Of course the seller need not deliver the thing until he receives the price, but this right arises as a lien, and not as a right of property. " Where by the contract itself the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel and to pay the stipulated price, the parties are then in the same position that they would be after a delivery of goods in pursuance of a general contract " (/•), Thus, A. bought a given stack of hay for a sum payable on a f utm^e occasion ; and it it was held to be a sale passing the immediate pro- {p) Shep. Touch. 224. {q) Beujamin, p. 301, where the point is discussed. ()•) Parke, J., in Lixon v. Yates, 1 A. & E. 313, 340. CONTRACTS OF SALE OF PERSONAL TROPERTY. 117 perty (s). The practical result of this would be that the hay would remain at the risk of the purchaser, though in the absence of special agreements he could not remove it until he had paid the price. When the goods, though sold specifically, are sold with a condition, the following rules are stated by Lord Blackburn (/) and Mr. Benjamin {u) : — " (i) Wliere hy the agreement the vendor is to do anijtlting to the goods for the jJKrpose of jmtting them into that state in ndiicli the purchaser is to he bound to accept them, or, as it is sometimes tvorded, into a deliverable state, the perfo7-mance of those things shall, in the absence of circumstances indicating a contrary intention, be taken to be a condition precedent to the vesting of the jJropertg." For instance, if the seller is to deliver the goods at a particular place, the j^roj^erty passes only when they are delivered there (r). So, also, if the thing sold, though specified, is not yet in existence, or is only partially finished, e. g., a thing to be made to order, the buyer obtains the proprietorship only on completion (of coui'se, in the absence of agreement, express or implied, to the contrary) ; e. g., in. Clarke V. Spence (?<•), B. agreed to build a ship, to be paid for by instalments at periods coincident "with certain stages in its building. Two instalments had been paid when B. became bankrupt, and the point at issue was, to whom did the vessel belong ? And the (*) Tarlinff v. Baxter, 6 B. & C. 360. (0 Page 15 L (m) Page 268. {v) Cockbixm, C. J., in Calcutta Co. v. De Mattos, 32 L. J. Q. B. 322; and 1 Sm. L. C. p. 164. (w) 4 A. & E. 448. 118 KULES RELATING TO PARTICULAR CONTRACTS. Court stated that "until the Last of the necessary materials be added, the vessel is not complete, the thing contracted for is not in existence. . . . And we have not been able to find any authority for saying, that while the thing contracted for is not in existence as a whole and is incomplete, the general property in such parts of it as are from time to time constructed shall vest in the purchaser, except the above passage in Woods v. Russell " {x) . In this par- ticular case it was decided that the payment b}'' instalments evidenced an intention to take and give property in the thing, so far as it was constructed at the time of payment of each instalment. In a sub- sequent case, Parke, B., said, " A chattel which is to be delivered in futuro does not pass by the con- tract" (y). The rule under consideration applies only if the work to be done upon the thing is to be accomplished before delivery, c. g., it will not apply if a vendor agrees to do certain repairs after delivery (s) ; further, it will be seen that the something to be done is to be done by the vendor. An agreement by the buyer to do something to the goods — and such is conceivable — cannot affect the passage of their property, (ii) " WIterc anytlnng remains to he done to the goods, for the purpose of (iseertnining the priee, as hy xveighing, measuring, or testing the goods, where the priee is to depend upon the quantit)/ or quality of the goods, the performance of these things also shall be a condition jjre- (x) See this case, 5 B. & Aid. 942. Ip) Laidler v. Burlwson, 2 M. & W. 602. And where there is a question whether the case is one of sale or work, see The Anglo- Eg^ptian Navigation Co. v. Jietinie, L. R. 10 C. P. 271. (z) See Greaves v. Beplr, 2 B. & Aid. 131. CONTRACTS OF SALE OF PEllSONAL PROPERTY. 119 cedent to the transfer of the property, although the individual goods be ascertained, and theij arc in the state in ichich they ougJd to be accepted^ This refers most probably to any weiglimg or measuring by the vendor, and is thus a particular case of rule (i); e.g., in Simmons v. Swift [a), a specified stack of bark was sold at 9/. 5s. per ton, and portion thereof was weighed and taken away ; it was decided that the property in the remainder had not passed because it was to be weighed, and "the conciu-rence of the seller in the act of weighing was necessary." lint in Farley v. Bates {b), the buyer was to weigh the goods at his own expense, at a machine past which they would be taken in transit ; and it was decided that here the property did pass, and an opinion was expressed that if the weighing or measuring was to be done by the buyer, the property would, as a matter of law, always pass. If the goods are measured for the satisfaction only of the buyer, the property passes at once. On this head see and contrast the cases Logan v. Le Mesurier (c) and Gilmour v. Supple [d). (iii) '' Where the buyer is by contract bound to do anything as a condition, either precedent or concurrenty on tchich the passing of the 2)>'operty depends, the pro- perty icill not jmss till the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer,^' e.g., if payment and delivery are to be concurrent and by mistake goods (a) 5 B. & C. 857. (6) 33 L. J. Ex. 43. (c) 6 Moo. P. C. 116. {d) 11 Moo. P. C. 551. 120 RULES RELATING TO PARTICULAR CONTRACTS. are delivered before payment, the goods may be de- manded back (e). Sa/e of ail Unspecified CJtattel. — The contract is here merely an executory agreement, and until ap- propriation the proj)erty does not pass. Such eases will include those which were described by Bay ley, J,, as " a bargain for a certain quantity, ex. a greater quantity" (/), e.g., sale of so many tons of hay out of a certain year's produce (r/) . But where the goods have been chosen out of the bulk and appropriated to the contract, that which was formerly a mere agree- ment to sell becomes an actual sale, and the property passes (A) . A question of some difficulty arises, when it is required to settle who has the right of appropriating — say, that A. orders of B. 500 pounds of a given kind of sugar; here it is usual for B. to select the particular portion of sugar bought from the bulk, but it is not always so easy to determine. Benjamin lays down this rule (/) : " When, from the nature of an agreement, an election is to be made, the party who is by the agree- ment to do the first act, which from its nature cannot be done till the election is determined, has authority to make the choice, in order that he may be able to do that first act, and when once he has done that act, the election has been iiTevocably determined, but till then he may change his mind," e.g., if the pm-chaser is to take away the bricks, he must send for them, {e) Bayley, J., in Bishop v. ShiUito, 2 B. & Aid. 329. (/) Gillett V. Hill, 2 C. & M. 530. Ig) See Whitehouse v. Frost, 12 East, 614 ; and Benjamin's re- marks on that case, p. 297. (//) Rohde V. Thicaites, 6 B. & C. 388. (t) Page 303. CONTRACTS OF SALE OF PERSONAL PROPERTY. 121 and he has the right to select ; if the seller is to send them, he has the right of appropriation," e.g., in The Calcutta Company v. Be Mattos (J), coals were to be delivered by the defendant at Eangoon, and for that purpose were shipped from London to that port ; in accordance with his contract, lie gave the bill of lading and the policy of insurance to the company. Lord Blackburn said, " As soon as Mattos, in pursu- ance of these stipulations, gave the company the policy and bill of lading, he irrevocably appro- priated to this contract the goods that were thus shipped So that from that time what had originally been an agreement to supply any coals answering the description became an agreement relating to those coals only, just as much as if the coals had been specified from the first." The above rules are those that generally prevail, but in many instances they are passed over in accordance with the intention of the contractors. " There is no rule of law to prevent the parties in cases hke the present from making whatever bargain they please. If they use words in the contract showing [an intention] this intention is effectual" (/«•). In Young v. Mattheics (/), a purchaser of bricks sent his agent with an order for delivery, and the vendor's foreman declared his intention of delivering when- ever he could get rid of a man who was in possession under a distress ; he then pointed to various clumps, consisting of bricks, some unfinished, some finished, (y) Ubi supra. {k) Lord Blackburn in The Calcutta Company v. Be Mattos, uh'i supra. See Castle v. Fla>/fvrd, L. R. 5 Ex. 165 ; 7 Ex. 98 ; and Woods V. Russell, 5 B. & Md. 942. (/) L. R. 2 C. P. 127. 122 RULES RELATING TO PARTICULAR CONTRACTS. and said that out of those the delivery should he made. It was decided, on these facts, that there had been a sufficient ajDpropriation, and that the property had passed. Erie, C. J., said : " The well-known general rule that the jtroperty does not pass to the buyer wdiile anything remains to be done by the seller, either to complete the goods or to ascertain the price, does not therefore apply to the present case. There is no doubt that the parties could pass the property in all the bricks, whether finished or not, if such was their intention." So if the vendor retains a jus disponendi, this will show an intention not to part with the property in the goods till the happening of some specified event, generally until payment of the price; e.g., if the bills of lading are made dehverable to the consignor's order, the consignee does not get the property until the happening of something further (w^) , not even if he offers to accept bills or to pay the price (n). If a purchaser receives the bill of lading together with a bill of exchange for acceptance, this is evidence of intention on the part of the vendor not to part with the goods till acceptance, and the property as a fact W'ill not pass unless contrary and stronger evidence is produced (o). II. — Agency, This is a most important branch of law to mercan- tile men. It would be hardly too much to say that (;«) Van Casteel v. Boolccr, 2 Ex. 691 ; and see Waite v. Baker, 2 Ex. 1 ; Turner v. Trustees of the Liverpool Docks, 6 Ex. 543. («) See cases in the last note, and also Cotton, C. J., hyMirahita \. Imperial Ottoman Bank, 3 Ex. D. 164. (o) See Benjamin on Sales, pp. 352 et seq. AGENCY. 123 by far the most important and numerous of daily transactions are carried on by means of agents of some sort or other. A servant is told to whistle for a cab ; the servant is an agent to contract for his master with the cabman ; a clerk is sent to see a customer with respect to an order ; a cashier pays a clieque ; a solicitor undertakes a suit : all are agents, and subject to the law as intended to be stated in the present chapter. Agency may be defined as a relationship founded on a contract express or implied, by which one of the parties confides to the other the management of some business to be transacted in his name, or on his account, and by which the other assumes to do the business, and to render an account of it {p). This definition, though not perfect, expresses the idea with tolerable accuracy. Of course, the word "business" must be taken generally, and not confined to "business with the view to gain or profit." The words " in his name" are inserted to meet the case of agencies created by estoppels and similar examples, for there need be no benefit to the principal ; if only he stands by and allows a man, without hindi-ance, to represent himself as agent, he is treated as though an express contract of agenc}" were made. An agent, or, as he is styled in the old books, an attorney, is "he who is employed to do anything in the place of another" {q), and the person who employs is called the principal. It must be noted, however, that agency is not mere employment, but employ- (p) See Broom's Common Law, p. 525; and Kent's Comms. 12th ed. vol. ii. p. 614. {q) Comyns' Digest, Attorney A. 124 RULES RELATING TO PARTICULAR CONTRACTS. ment for the purpose of putting the principal into legal relations with others. In treating of the law of agency, these others will be styled third parties. Agents are extremely numerous in their varieties. Some of the most important, together with the chief variations in their legal characteristics, will he found enumerated hereafter (c) . Taking them generally, they have been divided by writers {d) into three great classes : (1) Special, viz., those who have authority to do a specific act, c. g., buy a particular thing ; (2) General, "vdz., those who may do anything coming within certain limits, e. g., agent to manage a business ; (3) Universal, viz., those who may do anything on behalf of their principal, and whose authority is unlimited. Thus, an imiversal agent may do anything on behalf of and bind his principal, if only it is legal and otherwise consonant to the general law of contracts ; a general agent may do the same within certain limits ; a special agent is tied down to the specific act to perform which he is appointed. A man may have two businesses, e. (j., banker and tea-merchant ; his general agent in the banking-house would have no authority to contract on his behaK in the tea-house, and vice versa ; his universal agent could do so in both ; a messenger who is sent to get postage-stamps could bind him only in that matter. Who may appoint and be appointed Agents. Those who cannot make contracts themselves (as to whom see ante, p. 25) cannot get out of their (fl) Page 153. (d) See Story, Agency, §§ 17, 21. AGENCY. 125 disabilities by tbe use of agents, but it is a settled question tbat incapacity to act for himself will not prevent a person from being ajipointed agent for another. For instance, at common law a mamed woman is incapable of contracting for herself, but she could always bind her husband by contracts really or apparently in liis behalf {e). An exception to this is the case of a lunatic, who can scarcely be appointed an agent, and it would seem questionable whether a man in a state of drunkenness unfitting his understanding, is competent to contract on behalf of anybody. Appointment of Agents. As a rule, no formal manner of appointment is required, in fact the vast majority of agencies are created verbally and often without any express arrangement at all, and unless these were recognized by law mercantile business could hardly proceed. But if the agent is to have authority to contract under seal the authority must also be under seal, and it is then called a power of attorney, though the wantl of a deed will be of no avail as a defence to a prin- cipal who is present and allows the agent to enter] into the contract for him {/). Also, a deed is neces- sary when the intended principal is a corporation, and the authority given is to enter into contracts which may be made by a corporation only under seal (g). A question sometimes has arisen as to the necessity of writing, but it may be said now that {e) E.g., Bazeley v. Forder, L. E. 3 Q. B. 559. (/) King V. Solomon, 4 B. & Ad. 647. (g) See ante, p. 34. 126 RULES RELATING TO PARTICULAR CONTRACTS. this is unnecessaiy in any case, save where the con- tract is to be one within the provisions of the Statute of Frauds, sects. 1, 2, 3 (A). Contracts within the 4th and 17th sections, though, as we have seen, they are bad unless themselves written, may be validly made by verbally authorized agents {i). The following may be the methods of creation : — 1. Seal. 2. Parol (including words and wi-iting). 3. Conduct. Under this last head come such cases as the following : — a servant purchasing oats for his master's horses, the master having previously paid similar bills (k) ; the authority of a partner or wife to bind a co-partner or husband ; an owner who sends horses to a repository for the sale of horses authorizes sale if sold bond fide. So in Pickering v. Busk (/), a broker was employed by a merchant to buy hemp ; he did so, and at the merchant's request, the hemp was left at the broker's wharf ; the broker sold the goods, and the sale was supported on the ground that the broker was the apparent agent, and that the merchant was estopped by his conduct from denying the agency. These have been styled agencies by estoppel. A peculiar case is Kemp v. Pryor (ni), where the consignee of inferior goods sold them for the benefit of the consignor, and the former was considered agent for the latter. Although the agency may be non-existent at the time when the contract is entered into, it may arise and be made retro- (h) These sectious relate to leases. (i) Hiffffins V. Senior, 8 M. & W. 844 ; Heard v. FlUe)/, L. R. 4 Ch. 548. {k) Cf. Davidson v. Eoiertson, 3 Dowl. 229. \l) 15 East, 38. \m) 7 Ves. 246. AGENCY. 127 spective by ratification, i.e., adoption of tlie contract as made, but there can be no ratification unless the contract is made for the principal expressly, and the principal is, as a fact, non-existent when the contract was made, e.g., an exjiected company (u), nor if the Act originally was void (o) ; moreover the ratifica- tion must be not of part of the contract but of the whole (p). Determination of Agency. This may occur either by the act of the parties themselves or by the operation of law. (i.) B// act of the Parties. — This is styled revocation if the principal withdraws, renunciation if the agent throws up the contract. It is brought about by either i)arty, and unless repugnant to the original terms of the contract, it may take j)lace at any time. But it must be noted that the principal remains liable on all contracts entered into on his behalf even after the termination of the agency, unless he has caused notice of such termination to reach third parties, or imtil such a time has elapsed, or such circumstances have happened, as would lead a reason- able man to infer that the agent's authority had been countermanded. Thus, a servant who has been accustomed to receive and pay money for his master, borrowed 200 guineas in his master's name after he had quitted the service ; but the lender recovered {«) Wilson V. Tumman, 6 Man. & Gr. 236 ; Kelner v. Baxter, L. R. 2 C. P. 175 ; lie XorthumherJand Avenue Hotel Co., 33 Ch. D. 16. (o) Ashburij Carriage Co. v. Riche, L. R. 7 H. L. 653. {p) Fergusson v. Carrington, 9 B. & C. 59. If ratified tte ratifi- cation is t]iro\\Ti back to the time when the act is done, Bolton v. Lambert, 41 Ch. D. 295. 128 RULES RELATING TO PARTICULAR CONTRACTS. against the master on the ground that he had not heen made aware o£ the 'revocation of authority (q). So, in the case of a partnership (which is in many respects a kind of agency), the partner who leaves himself ostensibly as a member of the firm, is liable on debts incurred, even though he has ceased to be an actual member. A further limit to this power of revocation at any time, is found where an " interest has been coupled with the authority," e.g., when the principal has entered into an agreement to give something to a person, and has appointed the latter as agent to collect and secm-e it for himself. In such a case the authority cannot be revoked. If the agreement has been partly carried out, it cannot be rescinded unless compensation is paid to the party who has done the work, and is willing to continue under the contract ; but this must be taken subject to the general rule of contract; e.g., as to fraud, illegality, &c. (r). (ii.) Bi/ operation of Law. — (a) Death puts an end to the contract at once. A case illustrating this is Smout V. Ilbcry («), in which it appears that a butcher was unable to recover the price of meat supplied to a woman, at a time when her husband, supposed to be alive, was in reality dead ; her authority was gone, and she was incapable of contracting for herself (?!). (b) Bankruptcy. In this event the contract is ended unless it is taken up by the trustee, (c) Insanity. This will depend, however, upon the general circum- {q) Monk V. Clayton, Moll. 270. (r) See ante. (s) 10 M. & W. 1. [t) It must be remembered that tliis was previous to the Married Women's Property Acts. AGENCY. 120 stances of the case. The insanity of the agent will cause an absolute termination, that of the principal will or will not according as to whether the contract made was necessary, whether there is any evidence of unfair dealing, &c. Dreic v. Nunn {u). Here a man i gave his wife authority to buy, then became a lunatic. When he had recovered, he repudiated her contracts, but was held liable on a suit for necessaries supplied. In addition to the above, the agency may be terminated by — (a) expiration of time agreed upon for its continuance ; (b) destruction of the subject- matter; e.g., agent to let a house, when the house is burnt down; (c) complete performance; e.g., when an agent to buy a house, buys it. Rights and Duties. I. As hetivecn Principal and Agent. Duties of an Agent to his Principal. — His duty is to do the work he has undertaken, and to do that with reasonable skill and diligence. The exact amount of skill and care required varies much with the circumstances, but generally, a man who undertakes to act for another, must not show less diligence than he would have shown if exercising his own affairs. If in addition, he is engaged upon an understanding that he must show skill, this skill he must show, or he is liable to indemnify his principal, even though he has done his very best; e.g., a solicitor cannot say, " I did not know the law on that point," he is engaged upon the miderstanding that he does know {u) 4 Q. B. D. 661. M. K 130 KULES KELATING TO PA.RTICULAR CONTRACTS. it, and will use his knowledge properly for tlie benefit of his client. In tliis respect a difference is to be observed between a gratuitous and a paid agent, the gratui- tous agent is liable only in the event of negligence in carrying out a matter actually commenced, but he is not bound to enter upon the agency at all. He is not liable for a non-ieasance, but only for a rnis- feasance. Whatever he does enter upon, he must carry it out without negligence, it being held that the " confidence induced by undertaldng any service for another, is a sufficient legal consideration to create a duty in the performance of it" (,r). Even now, how- ever, his responsibility is not so great as that of a paid agent, for whereas the latter is liable for ordi- nary negligence, the voluntary agent must be guilty of gross negligence (//), unless, indeed, his j^i'ofession is such as to imply skill, in which case, if he enter upon the work at all, he must do so with that skill (::). The question then arises, what is gross negligence ? Eolfe, B., said it differs from negligence only in the addition of a vituperative epithet (a). Pollock, C B., laid down the law more clearly, and perhaps more cor- rectly, in Beal v. South Devon Bail. Co. {b) : " Gross negligence includes the want of that reasonable care, skill, and expedition, which may properly be expected from persons so holding themselves out {i.e., as agent for anj'thing), or their servants .... The failure (x) See notes to Coc/i/.s v. Bernard, 1 S. L. C. 199. [y) Beauchamp \. Powley, 1 M. & Rob. 38 ; Doorman v. Jenkins, 2 A. & E. 256 ; Wilkinson v. Coverdale, 1 Esp. 74. (s) Lord Lousrliborougli in Shidls v. Blackburn, 1 H. Bl. 158. («) IFihon v.^Brctt, 11 M. & "W. 113. (b) 5 H. & N. 881. AGENCY. 131 io exercise reasonable care, skill, and diligence, is gross negligence. . . . From [a gratuitous agent] is reasonably expected such care and diligence as persons ordinarily use in their own afPau-s." The question is one for the jury, and is determined on the particular facts. The law on this subject is to be found fully considered in Coggs v. Bernard {c), and the notes thereto in Smith's Leading Cases. Whatever the agent does must be done for the benefit of his principal, not necessarily in his name, in fact not ordinarily so. Thus an auctioneer sells without at once disclosing the vendor ; a broker sells " for my principal," or to use a more homely example, the servant calls and engages a cabman, and all with- out mentioning the name of the person for whom the contract is made ; but in each case all benefit belongs to the principal. An agent must never place himself in such a position as to cause his duty and his interest to colHde. For instance : he must not act for hun- self in the particular matter without leave, nor may he tm-n himself into a principal (d) . He must not i intermix his affairs with those of the princij)al, e.g.yi he should not pay money received as agent into his ' (c) S. L. C. vol. i. p. 199 ; and Ray. 909. The difference be- tween ordinary and gross negligence was one well Icnowii to tli-t Roman lawyers, and was by them distinguished by different names. Gross negligence woiild be called ''culpa lata,'''' and ''culpa Icv'iS in abntracto,'''' the minor degree being "culpa Icv'is.'''' The whole subject— including a consideration of what amount of •) Bacon's Abridg. Auth. D. ; and see Comyns' Digest, Atty. C. ; Story, Agency, § 14. (») 8 Ch. Div. 286. (<) Page 310. 136 RULES RELATING TO PARTICULAR CONTRACTS. the purpose, and where that is the case, the reason of the thing requires that the rule should be relaxed, so as, on the one hand, to enable the agent to appoint what has been termed a ' sub-agent ' . . . . and on the other hand, to constitute in the interest of and for the protection of the principal, a direct privity of contract between himself and such substitute. And we are of opinion that an authority to the effect referred to may and should be implied, when from the conduct of the parties to the original contract of agency, the usage of trade, or the nature of the par- ticular business which is the subject of the agency, it may reasonably be presumed that the parties to the contract of agency originally intended that such authority should exist, or where in the course of the employment, unforseen emergencies arise which im- pose upon the agent the necessity of employing a substitute." Thus, an auctioneer must do the work himself, but if goods are given for sale at a public auction to a man known not to be a licensed auc- tioneer, there is authority for the agent to employ a licensed man. So, if a man employ a solicitor, there is implied authority to allow a delegation of some of the work to clerks (/). Highfs of 0)1 Agent as against lu's Principal. — In the first place, he has a nght to the remuneration a greed upon, or which may be customary in the business in which he has been engaged; e.g., if A. employs B. to sell goods for him, and says nothing (/) As to delegation by dii'ectors, see Ifotcard^s case, L. R. 1 Ch. 561 ; and generally, Catlui v. Bell, 4 Camp. 183 ; Coles v. Trecothick, 9 Ves. 234, 250 ; and Story on Agency, \^ \4^etseq., 201. As to liability for sub-agent's contracts, &c., see Story, § 201. AGENCY. 137 about commission, he is understood to agree to pay such amount as may be usual ; though the agency may be gratuitous, it ha\ing been determined that the trust reposed in a person is good consideration for the work undertaken {g). But whatever the remuneration may amount to is a matter to be de- duced from the contract itself, and is a matter of fact in each particular case, and not a matter of law. If the principal does not carry out the con- tract made for him, or if the negotiations end in no result, the agent nevertheless will often be entitled to his commission [h). Thus, in Prickett v. Badger {i), an agent found a purchaser, but the principal would not complete ; it was decided that the agent was entitled to reasonable remuneration, Willes. J., thinking the full amount of agreed commission to be due. In Green v. Lucas (J), and in Simpson, v. Lamb [k), the same principle was adopted. In the latter case the principal sold the object himself, and the Court decided that, though no action could be brought for revocation of authority, yet the agent could recover for work ah'eady done. But each case stands by itself ; sometimes the facts show that, ac- cording to the agreement, the agent is to take nothing unless he completes the matter ; sometimes he is to take a full commission in any event ; sometimes he may get an amount proportionate to the work done (1). (g) Coggs-v. Bernard, 1 S. L. C. 199. . (A) Employing an agent, e.g., a manager, docs not imply an V] agreement that the business shall be continued. Rhodes v. Forwood, \\ 1 App. Ca. 256. (i) 1 C. B. N. S. 296. 0) 33 L. T. N. S. 584. {k) 25 L.J. C. P. 113. (/) See Queen of Spain v. Farr, 39 L. J. Ch. 73 ; Green v. Mtdes, 50 L. J. C. P. 343 ; Lockicood v. Levick, 8 C. B. N. S. 603 ; Tribe v . Taylor, L. R. 1 C. P. D. 505. ~^ 138 RULES RELATING TO PARTICULAR CONTRACTS. A fruitful source of litigation arises wlien tliere is. doubt whether the agent is entitled on the result of a first introduction only, or whether he can demand commission on all subsequent orders of those he has introduced, and no general rule can be laid down ; the agent should see that the precise terms are in the agreement (ni) . 2. An agent is entitled to be indemnified for losses,. &c., sustained in doing the work. Thus, in one case, where the agent was sued for seizing goods impro- perly, and it was shown that he did it with bona Jides, and at the command of his principal, he was adjudged to be entitled to indemnity (;^). So if a principal direct his agent to engage in any enterprise in which, by the custom of any trade or society, liabilities are incurred, the agent will be entitled to be indemnified against these. " It is familiar law that a principal who employs an agent to purchase goods for him in a particular market, is taken to be cognisant of and is bound by the rules which regidate dealings therein ; and the agent is entitled to be indemnified by his principal for all he does in accordance with those rules" (o). (Willes, J.) To this last proposition limits have to be placed, (i.) If the loss be caused by default of the agent himself, his right disappears {p) ; (ii.) Tlie custom must be one that is well kno\\Ti ; so notorious in the market that those dealing there may easily ascertain it, and may well be supposed to have knowledge of {ill) See Tribe v. Taylor; tili supra. (w) Toplis V. Crane, 5 Bing. N. C. 636 ; J^elts v. Gibbins, 2 A. & E. 57. (o) Whitehead v. Izod, L. R. 2 C. P. 228; and see Sachs v. Spiclmav, Times Law Reports, 21st May, 1889; W. N. 1889, 103. {p) Duncan v. Eill, L. R. 8 Ex. 242. AGENCY. 139 it (g) ; (iii.) The custom must "be l egal and reason - able, or else express knowledge of the custom should be shown to exist (r). Some recent cases will illus- trate these rules. It is a rule on the Stock Exchange that if a broker is employed, and he becomes a de- faulter, accounts opened are, as between the jobber and the broker, closed at the current prices ; but, as regards the employer, they are closed, or the contract may be completed by the employer, or by another broker for him, at the employer's will. A. employed B. to buy for him, and B. became a defaulter ; B. told A. that he might either close the account, or take on the transaction by himself or through another broker, paying on settling day ; A. elected to close, and there was a loss, which B. had to pay; the ques- tion now was, whether B. could demand indemnitj' for this loss. The loss was caused by B.'s default, and therefore, in the absence of special circumstances, no indemnity could be demanded (s) ; but here the employer, who might, by the custom, have determined the agency, and have transferred his account to another broker, did not do so, and ratifying the de- faulter's acts as to this particular purchase, he was held hable to indemnify him (;'). In Pen'// v. Banief {ii), an action for losses sus- tained on defendant's account was brought ; the de- fendant had instructed his agent to purchase bank (q) Gnsselly. Bristowc, L. R. 3 C. P. 112. (r) Xeilson v. Janies, 9 Q. B. D. 546 ; Perry v. Barnet, 15 Q. B. D. 388 ; and where notice of the custom was proved, Seymour v. Bridge, 14 Q. B. D. 460. (.v) Dwican V. mU, L. R. 8 Ex. 242. (0 Hartas v. Ribbons, 22 Q. B. D. 254. (?<) Ubi supra. J 40 RULES RELATING TO PARTICULAR CONTRACTS. shares, and, before settling day, repudiated the con- tract. The broker had to pay, and now asked to be recouped. It was admitted that the pm'chase was void, as not being in accordance with Leeman's Act {it) , but a custom of disregarding this statute was shown to exist. The Court held on a finding that the de- feiidant was not acquainted witli this custom, «mA that the plaintiff could not recover, for a knowledge of an unreasonable and illegal custom will not be presumed. In Seymour v. Bridye (f), the facts were similar, but knowledge of the custom was proved, and the decision was against the defendant. The last quoted case is somewhat similar to those in which it has been held, that when a person at the request of another incurs some liability, which, though not legally enforceable, is paid in consequence of some moral pressure {e.g., danger of exj^idsion from a society), the principal may be legally liable to indemnify his agent. In Read v. Anderson {/r), an agent was employed to make a bet ; the horse lost, and the agent paid ; had he not done so, he would have been posted as a defaulter. It was decided, that he could recover from his principal the amoimt paid. So in Thac her v. Hardy {x) , a broker had been employed in a transaction which amounted to a gamble in differences, but he was awarded indemnity for losses, as it was said that the contract between himself and his principal was legal, he agreeing to /do work, his principal to pay and indemnify him. {u) See ante, p. 2-i. (r) Z'bi supra. (w) 13 Q. B. D. 779; and for a converse case, see Bridger v. Savage, 15 Q. B. D. 363. (x) 48 L. J. Q. B. 289. AGENCY. 141 The line between tliis class of case and that repre- ) sented by Ferry y.Barnd is rather fine; Matthew, J., , thought in Seymour v. Bridge that Read v. Anderson covered the case before him exactly. 3. An agent has a right to a lien, the particular kind var3'ing ^xiih. the class of agent. See the chapter on Liens (y) . A payment to a principal by a purchaser will not defeat this lien (2). 4. In some cases an agent has a right to stop goods " in transitu " {«), as when, being agent of the consignee, he has made himself liable for the price by ha\ing pledged his own credit {b). This right may not be exercised if the general balance between the principal and agent is in favour of the former. 5. An agent may often get an account, viz., when- ever the items between the parties are of such a complexity as in the opinion of the Court to require it ; but if the amount is liquidated, or is such as to be recoverable without difRcidty in the ordinary way, no account will be ordered in Chancery (e) . Authority of an Agent. — This part of the subject is much mixed up with that which treats of the lia- bilities incurred by an agent towards thii'd parties, and of the extent to wliich a principal is bound by an agent's acts ; and much of the present subject may be left till we come to a consideration of such (y) Fost, p. 317. {2) JFiniamsY. MiUington, 1 H. Bl. 81. (a) Ante, p. 105. {b) Hawker v. Dunn, 1 C. & J. 519. A commission agent for a foreign principal has this right as regards goods he has sent abroad. Cassahoglou v. Gibbs, 11 Q. B. D. 797; and see ante, p. 107. (c) Foley v. Bill, 2 H. L. C. 28 ; Smith v. Leveaitx, 33 L. J. Ch. 169. 142 RULES KELA.T1NG TO PARTICULAR CONTRACTS. questions. The authority of an agent is said to be general or special, dependent upon whether the agent is of a general or special class [d). In every case it depends, as hcUccen principal and agent, upon the terms of their agreement, and here the authority will be strictly construed (e) ; as heticcen agent, principal, and third parties, upon what is the ostensible autho- rity given to the agent. A secret limitation of the authority is of no use as against those who are not aware of any limitation — thus, A. has a shop of which B. is manager, and B. is in the habit of receiving necessary goods on credit ; one day A. tells B. that for the futm-e all things must be paid for at once, and in cash, and he withdraws B.'s authority to bind him ; a creditor who subsequently supplies goods on credit can recover against A., unless this limi- tation of B.'s authority has been communicated to him. If the agent's authority is knowTi to be special, the third party must make himself acquainted with its limit, unless by the conduct of the principal he is prevented from doing so, or unless the principal leads him to infer reasonably that the authority is of a particular nature and extent (/). Certain classes of agents have a certain and definite authority : such as brokers, factors, auctioneers, &c., as to these, see later, p. 153. But, generally, it may be said that whatever authority is required to carry out the purpose for which the agency is created will, in the absence of evidence to the contrary, be impKed. (d) See ante, p. 124. [e) E.g., if A. and B. have authority to do a certain act, A. cannot do it alone. Comyns' Dig. Atty. C. (/) Story, Agency, §§ 57 ct seq., § 126 ; Smith's M. L. Chap. V. Sect. IV. AGENCY. 143 Thus, a man put in charge of a shop will have implied authority to order goods for the purposes of his trade ; also to receive payments from customers, and to give receipts. Such implied authority, however, must he so construed as not to give a different kind of power to that involved in the original direct authority, r. //., if an estate agent he employed to procm-e a piu'chaser for an estate, and to advertise it, he may not actually enter into the contract of sale {ff). So an agent appointed to receive money should take cash only (h). The following examples are worthy of notice. A person who employs a hroker to act on the Stock Exchange impliedly gives him authority to follow the rules thereof (/). Goods were delivered to an agent for sale at a certain place, and he was unahle to sell them there ; it was decided that he had no authority to send them elsewhere in search of a market {j). Authority to settle losses on a policy includes a right to refer the matter to arbitration (k) . A principal gave an agent abroad authority to pm-- chase 100 bales of cotton, and the agent purchased 94 only, this being all that was practicable ; it was held that the agent had authority to use his dis- cretion according to the state of the market (/). i^t a meeting, at which defendant presided, a resolution {(f) Hamer v. Sharp, 19 Eq. 108. As to the eifect of usage, see Scott V. Irving, 1 B. & Ad. 60o ; Sweeting v. Pearce, 7 C. B. N. S. 449. {h) Swcctitig v. Pearce, 7 C. B. N. S. 449. As regards the rights, liabilities, and authority of an agent in relation to bills of exchange, see Evans' P. k, A. 213. (i) Sutton V. Tatham, 10 A. & E. 27 ; and see ante, pp. 138, 140. (>) Catlin v. Bell, 4 Camp. 183. (k) Goodson v. Brooke, 4 Camp. 163. [l) Johnston v. Kershaw, L. K. 2 Ex. 82. 144 RULES RELATING TO PARTICULAR CONTRACTS. was canied that a circular should be "printed and advertised at the discretion of W." as quickly as possible ; W. employed a printer, and the circulars were sent to the defendant, who accepted them ; there was an arrangement whereby W. was to pay^ but this was not communicated to the printer, conse- quently the defendant was held to have authorized W. to act on his behalf, and was declared liable accordingly {})i). An authority to " sign for me and in my name .... any and every contract and from time to time to negotiate, make sale, dis- pose of, assign, and transfer," certain notes, was held to authorize sale, but not pledge («) . As to the authority of counsel, see Matthcns v. Munster (o). Powers. — Within the limits of his authority, an agent has such powers as are required for its proper exercise. Thus, in Iloiranl v. BaiUce (p), it was said that authorities " are so to be construed as to include all the necessary means of executing them. Thus an authority to receive and recover debts includes a power to arrest" (q). But an agent for sale cannot receive payment except in money (r), I or perhaps by cheque (s) . An agent who represents ' himself to have an authority from a principal which he really does not possess, or who exceeds that which he does possess, is liable to an action at the suit of (w) liilei/ V. Packi)iff/o>2, L. E. 2 C. P. 536. («) Jonmenjoii Coondoo v. Watson, 9 App. Ca. 561. (o) 20 Q. B.'D. 141. Ip) 2 H. B1. 618. And see Story's Agency, 385. Iq) This, of course, was stated before the abolition of imprison- ment for debt, but the principle remains good. (*•) Catterall\. Hiudle, L. R. 1 C. P. 186 ; 2 C. P. 368. (s) Williams v. Evans, L. R. 1 Q. B. 352. AGENCY. 145 third parties for breacli of warranty of authority, ) provided the want of authority is not known to such \ paiiios (f) . Nor is it different if the agent bond fide ' supposed himself to have authority [u). II. As regards Third Parties. Whether principal, or agent, or hoth, are liable on a given contract is a matter depending upon the intention of the parties, and the authority of the agent, though it must be remembered that, as rega rds . theji^ts of third parties, the apparent authority is ■ usually of more importance than the real. Grene- ' rally, an agent is not liable on the contract, a prin- cipal is always so ; but to this rule many exceptions are found, most of them depending upon this prin- ciple, that if by his conduct one person causes another to infer that a principal is being dealt with, he cannot put that other in a worse position by any subsequent disclosure of his character as agent ; e.()., A. owes B. money, and B. buys goods to the amount, supposing A. to be vendor ; A. cannot afterwards, by showing himself to be an agent only, prevent B. from setting off the debt against the j)rice. (a) Riglits and Duties ivhere the Frincipal is dis- closed. — Here, in the absence of evidence to the contrary, the principal, and he alone, has liabilities and rights. But an agent may, under certain cir- cumstances, be liable even in this case, e.g., (i) if he (0 Randell v. Trimn, 18 C. B. 786 ; Collen v. Wright, 7 E. & B. ■;oi. {u) PoUiillv. Walter, 3 B. & Ad. 114. As to the measiire of damages, see Meek v. Wendt, 21 Q. B. D. 126; dLud Re National roffee Palace Co., 24 Ch. D. 367. M. L 146 RULES RELATING TO PARTICULAR CONTRACTS. expressly agrees to be so ; (ii) if he is commission agent for a foreign principal (v) ; (iii) where the principal is incapable (?p) ; (iv) if the contract is by deed, and the agent executes it in his own name ; (v) when the custom of trade makes them liable — e. g., when brokers or auctioneers, known to be agents, contract in their own name, they are liable personally (x) . If an agent would, under any of the above circumstances, be liable, evidence may tend to show that he was treated merely as agent, and was not trusted to for payment ; his liabi- lity then disappears, unless custom is against him. Thus, a broker sent a contract note in the follow- ing terms: "I have this day sold by your order, and for your account, to my principaU, &c.," and it was held, in the absence of usage, that the broker was not personally liable (y). If the contract is reduced to writing, and in it the agent appears as principal, he is bound, though as a fact it was known at the time that he was bargaining as agent only, unless he can show that the contract was so drawn up by mistake ; and this follows on the general rule, that parol evidence cannot be admitted to vary a written contract (s). An agent may sue on a contract though his prin- cipal be disclosed, if he has an interest {e.g.^ lien) in (v) Wilson V. Zidueta, 14 Q. B. 405 ; Armstrong v. Stokes, L. K. 7 Q. B. 598, 605. Even this liability may be rebutted by evidence to show that the foreiiyn principal alone was trusted. (w) A'cliier V. Baxter, L. R. 2 C. P. 174. {x) Short V. Spakeman, 2 B. & Ad. 962; Woolfe v. Some, 2 Q. B. D. 355. This point is often decided upon the particular facts of the case in which it arises. (y) Southwell v. Boicditch, 1 C. P. D. 374. \z) See notes to Thompson v. Davenport, 2 Sm. L. C. p. 377, 8th ed. And see Wake v. Harrop, 6 H. & N. 768 ; 31 L. J. Ex. 451, as to mistake. AGENCY. 147 the proceeds ; for this reason an auctioneer may sue for the price of goods (a). (b) RigJits and Duties u-Jien the Principal is u n- ^iscjimcd. — In this case the general rule is that the contract may be adopted against, or by the principal or the agent at the wish of the parties. In Sims v. Boncl{h), the rule was thus expressed: "where a contract not under seal is made by an agent in his owTi name for an undisclosed principal, either the agent or the principal may sue on it. . . . This rule is most frequently acted on in sales by factors. . . . But it may equally apply to other cases." If the principal sues upon the contract, he must do so subject to any right of set-off that the third party may have against the agent (c) . In Rabone v. Williams (d), factors sold to Williams, and when the undisclosed principal sued, Williams claimed to set- off a debt due by the factors to him, and the claim was allowed. This set-off cannot be allowed if the third party was aware that the agent was really such, nor if by the use of ordinary care, or by making ordinary inquiries, he might have known ; thus in the case of a sale he should show that the contract was made by a person to whom the prin- cipal had intrusted possession of the goods, that that person sold them as his own goods in his own name, and that he (the buyer) reasonably sup- posed the agent to be principal, and that the set- (ffl) TFiUiams v. Millington, 1 H. Bl. 81. {b) 5 B. & Ad. 393. (c) Eamazotti v. Bowring, 7 C. B. N. S. 851. (d) See George v. Clagett, and notes thereto, in Smith's Leading Cases, vol. ii., p. 118 et seq. l2 148 RULES RELATING TO PARTICULAR CONTRACTS, off claimed accrued before lie was undeceived {e) . In a recent case, CooJic v. Esltelhy (/), L. & Co. sold 0. cotton in their own names, really on behalf of M. C knew that L. & Co. were brokers, but did not know, and did not inquire whether in this case they had or had not principals. It was decided that money owed by L. & Co. could not be set-off against the price of the cotton ; Lord Watson saying, that to entitle a purchaser to set-off a debt due by an agent against one due to the principal, it must be shown " that the circumstances attending the sale were calculated to induce, and did induce, in the mind of the purchaser, a reasonable belief that the agent was selling on his own account, and not for an undisclosed principal." If the agent sues on the contract, a debt due by the principal cannot be set-off against it, for here no credit was given to the principal, nor was there any concealment that could be injurious to the buyer. If in the contract the agent describes himself as principal, there is no right of action in the actual principal, the agent alone can sue. In Humble v. Hunter (g), a, person entered into a contract relating to a certain vessel " myself owner," and it was held that evidence could not be allowed to show that another was principal, nor could that other sue on the contract. So if the princijDal allow the agent to represent himself as principal, the agent alone can sue on the contract made. (e) Lemenza \. Brinsleij, IS C. B. N. S. 467 ; Borries v. Imperial Ottoman Bank, L. R. 9 C. P. 38. (/) 13 App. Ca. 271. {g) 12 Q. B. 310. AGENCY. 149 The third party may bring his action against either the agent or the undisclosed principal, and parol evidence will be admitted to show that a written contract j)urporting to be made by a certain person, is in reality made by him as agent. The rule seems to be, that though verbal evidence cannot be allowed to discharge a person,.j^it may be taken t o show _that J-., party apparently not liable_is liable in reality. Thus, A. agrees in writing with B. to buy goods, notliing about C, the principal, being contained in the memorandum. If C. wants to sue, or if A. wants to get discharged, parol evidence will not be admitted to show the facts, but if B. wants to sue C. he may prove orally that he is the principal {//). But though as a rule the principal may be sued, there are exception s : — (a) when custom settles other- wise ; (b) when the principal is a foreign merchant represented here by a commission agent (/) ; (c) when the principal has, in accordance with the ordinary course of business, and subsequently to his liability being complete, altered his accounts with his agent, he may be sued, but subject to the state of these accounts. Thus, defendants employed C. to buy oil ; C. bought some of plaintiffs, saying it was for prin- cipals, but not naming them ; the terms were cash on delivery ; it was not an invariable custom to pay on delivery ; defendants, supposing the cash had been paid (which it had not), settled with C. ; when [h) See notes to Thompson v. Davenport, 2 Sm. L. C. 377 ; Truemait V. Loder, 11 Ad. & E. 589 ; mcmus. v.^nior, 8 M. & W. 834. (j) ylrmstrong v. Stokes, L. R. 7 Q. B. 598, 605 : Elbinger Co. v. Claye, L. R. 8 Q. B. 313. 150 RULES RELATING TO PARTICULAR CONTRACTS. C. became insolvent, plaintiffs started this action : held, defendants must pay, though if the third party had led the principals to believe that the agent and he had settled matters, the principals would have been protected (,/). So, in Armstrong v. Stokes (k), it was decided that a vendor who has given credit to an agent, believing him to be the principal, cannot recover against the undisclosed principal if the principal has bond fide paid the agent at a time when the vendor still gave credit to the agent, and knew of no principal ; (d) when the third party has, knowing the facts, treated the agent as the principal, e.g., when a seller, knowing the buyer to be an agent yet elects to give credit to him personally, the right of action against the real principal goes. The leading case on this subject is Paterson v. Ganda- seqiii (/). There the defendant, a Spanish merchant, employed L. to pm'chase goods for him, and plain- tiffs sent things which L. and defendant in plaintiffs' presence inspected, and the price was discussed. L. ordered the goods, and invoices were sent to L. in his own name, the plaintiffs electing to treat L. as theu- debtor. Eventually L. failed, and action was brought against the defendant. Judgment went for the defendant on the ground that " the plaintiffs in this case might have elected whom they would have as debtor ; and here they seem to have made their election" (m). This case is supported by Addison v. (j) Irvine v. Watson, 5 Q. B. D. 102, 414 ; Davison \. Donaldson, 9 Q. B. D. 623. {k) L. E. 7 Q. B. 598. {I) 2 Sm. L. C. 360. \m) Kemarks of Grose, J., in the above case. AGENCY. 151 Gandascqui («) ; but distinguish Thompson v. Daven- port (o), where the piu-chaser stated that he was buying for principals, and the seller made no inquiries and eventually debited him. Here it was decided that "if a person sells goods . . . but after- wards discovers that the person with whom he has been deahng is not the principal in the transaction but agent for a thii'd person, though he may in the meantime have debited the agent with it, he may afterwards recover the amount from the real prin- cipal ; subject, however, to this, that the state of account between the principal and the agent is not to be altered to the prejudice of the principal." In the two former cases, the seller knowing the agent to be such, and knowing the principal, trusted the agent in 2)reference ; here, knowing ^the buyer to be an agent but not knowing the principal, he exercised no such election. Rights and Duties lolien the Principal is non-existent. — If the principal is unnamed, then the agen t himself is really principal and is so treated {p), and may himself sue upon the contract when : (a) he is not described as an agent only ; (b) when the contract is part performed mth knowledge of the facts (j) ; (c) when the contract is a charter-party {})). If a professing agent names a principal who is non-existent, or incapable of contracting, the agent may himself be sued. In Kelner v. Baxter (>•), the («) 2 Sm. L. C. p. 369. (o) Thompscm v. Davenport, 2 Sm. L. C. 377. Ip) Schmaltz v. Avery, 16 Q. B. 665 ; 20 L. J. Q. B. 228. {q) Maynery. Grote, \Q M. ic W. 359. (r) L. R. 2 C. P. 174 ; and see Be The Empress Engineering Co., 16 Ch. D. 125 ; Scott v. Lord Ebimj, L. E. 2 C. P. 255. 152 RULES RELATING TO PARTICULAR CONTRACTS. defendants, on behalf of an intended company, agreed with the plaintiffs to pay for goods to be supplied to the company ; after formation, the'goods were sup- plied and consumed, but the Court held that defen- dants, having contracted as agents for a non-existent company, were personally liable, and that no subse- quent ratification was of any avail to them without the consent of the plaintiffs. If the principal is existent, capable, and named, but the agent has not any authority, and so the principal is non-existent, qua principal, the agent has no right or liabilities on the contract, but he is liable to an action for damages for breach of warranty of authority («). Liahiliti/ of a Principal for /lis Agcnfs Torts. — It is a general rule that a master is liable for the wrongs of his agent committed within the scope of the authority, though no express command of the master can be shown {f) . So, also, if the principal partici- pates in the result of the wrong, or takes advantage from it, he is liable {u). In other cases the agent alone is liable, even though the tort was committed solely for and on behalf of his principal. The liability of the principal, where such exists, is no answer to an action against the agent ; the latter is always liable (r) ; but it will be remembered that an agent who innocently commits a tort, within the (s) See before, p. 144 ; and see Eichardson v. Williamson, L. R. 6 Q. B. 276. [t) Barivick Y. The English Joint Stock Bank, L. R. 2 Ex. 259; Udell V. Atherton, 7 H. & N. 172 ; 2Iackay v. The Commercial Bank of New Brunswick, L. R. 5 P C. 394. (u) Scholefcld V. Templcr, 28 L. J. Ch. 452. [r) See Feto v. Blades, 5 Taiuit. 657. AGENCY. 153 scope of his authority, is entitled to an indemnity from his princijial {/v). Classes of Agents. Factors. — A factor is an agent " employed to sell \ goods or merchandize consigned or delivered to him By or for his principal for a compensation," (.r). He islj'ometimes called a consignee, and sometimes a commission agent ; but a salaried servant who holds goods for his master is not of necessity a factor, although he may have in any special case a power of sale. A broker and a factor are different sorts of agents, the chief points of difference being that the broker has not possession of the goods, whereas the factor has (i/), and whilst the factor niay sell in his own name, the broker may not, {z) . The powers of a factor are : (i) to sell in his own name {z), subject to the ordinary rules relating to saleS for imdisclosed prin- cipals ; (ii) to give a warranty, if it is usual in the course of the business {a) ; (iii) to receive payment and give valid receijDts (b), or he may sell on credit to a reasonable extent (c) ; (iv) he may insm-e for his principal {d) ; (v) since the passing of the Factors Acts {e) he has powers of pledging (/) ; (vi) he has a lien for the general balance of his charges on any- {w) See before, p. 138. (x) Story, Agency, § 33, see the whole section. (y) See judgment in Stevens v. £ilk»; 25 Ch. D. 31. {z) See Bari/iff v. Corrie, 2 B. & Aid. 143. (a) Brady v. Todd, 9 C. B. N. S. 592 ; 30 L. J. C. P. 223. (b) Drink water v. Goodtcin, 1 Covrp. 251 ; Fish v. Kempfon, 7 C. B. 687; 18 L. J. C. P. 206. (c) Houghton v. Mattliews, 3 B. & P. 488. {d ) Lttcena v. Crawford, 2 B. & P. N. R. 269. (e) See below. (/) Cole V. Xorth TFesiern Bank, L. E. 10 C. P. 354. 154 RULES RELATING TO PARTICULAR CONTRACTS. thing that has come to him qua factor {g). This lien he loses if he parts with the things {h), but a right of set-oif which the third party may have against his principal will not affect his lien {g). It has been specially decided, that if he becomes surety for his principal he has a lien to the extent of his lia- bility {g). Even if he sells the goods in a manner specially dii-ected by his principal, and in his princi- pal's name, his lien still attaches {i). The Factors Acts. — These may affect not only factors, but other agents also, yet as they take theii* name from, and mainly concern, this class of agents, an account of them here will not be out of place. The agent really touched by them is " the agent ' intrusted with and in possession' of the goods or the docu- ments of title relating to them." To state exactly what constitutes such an agent would be a matter of considerable difficulty, and amongst decisions which seem to vary much one from another, the following may be noted : " Agent," or " person," in the Act means an agent in a mercantile transaction, and a clerk is not such an agent (/ ), nor is a wharfinger {k). In Cole v. The North Western Bank (/), Lord Cole- ridge, C. J., said : " The agent must have been intrusted with the goods for the pui'pose of sale, or he must be a ^^erson who is ordinarily intrusted to {g) DriuJcivater v. Goodwin, 1 Cowp. 251. (h) Kruger v. Wilcox, Amb. 252. (i) Stevens v. Biller, 25 Ch. D. 31. (/) Monk V. WhUtvnbury, 2 B. & Ad. 484 ; Lamh v. Attenho rough, 1 B. & S. 831 ; Barnes v. Suainson, 32 L. J. Ci. B. 281 ; Cole v. North Western Bank, L. E,. 9 C. P. 470 ; 10 C. P. 354. {k) Monk V. Whittenhunj, ubi supra. [l] Ubi supra. AGENCY. 155 sell- sucli goods, and must have made the sale or pledge in the course of his ordinary business, in pursuance of the authority so conferred upon him." And see the remarks of the judges in Fuentes v. Montis [m), and in VicJccrs v. Hertz {n). In a recent case, Brown 4' Co. v. The Bedford Pantechnicon (o), the above statement of the law by Lord Coleridge was that which seemed to receive the assent of the Court. And now, in the Factors Act, 1889 (52 & 53 Yict. c. 45), which consolidates and amends all previous Acts, the words "mercantile agent " is used throughout in the place of the words " agent," " factor," or " person " ; and mercantile agent is defined to be " one having, in the customary course of business as such agent, authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods, or to raise money on the secmity of goods" (7;). The following are the cliief provisions of the Act so far as applies to agents : — "Where a mercantile agent is, with the consent of the true owner {q) , in possession of goods, or of the documents of title to goods, any sale, pledge, or other disposition of the goods, made by him (r) when acting in the ordinary coiu-se of business of a mer- cantile agent, shall, subject to the provisions of this Act, be as valid as if he were expressly authorized (w) L. E. 3 C. p. 268 ; 4 C. P. 93. («) L. R. 2 Sc. App. 113, 118. (o) May, 1889, not yet reported. (;;) Sect. 1. {q) Such consent is presumed, unless tlie contraiy is shown. Sect. 2 (4). (»■) Or by his clerk authorized in the ordinary com-se. Sect. 6. 156 KULES RELATING TO PARTICULAR CONTRACTS. by the owner of the goods to make the same ; pro- vided that the person taking under the disposition acts in good faith, and has not, at the time of dispo- sition, had notice that the person making the dispo- sition has not authority to make the same " (s). And if the owner withdraws his consent, a dis- position to any bond fide person will nevertheless remain good, provided such person has not received notice of such withdrawal {t) ; and consent to pos- session by the agent of documents of title to goods already possessed with the owner's consent, is im- plied {u). " A pledge of documents of title to the goods shall be deemed a pledge of the goods" {v)\ but the pledgee can acquire no further right to the goods than could have been enforced by the pledgor at the time of the pledge {iv) ; and if the consideration for the pledge is the delivery of other documents or goods, the pledgee has no interest in the pledge beyond the value of the goods or documents so delivered in exchange (,r). A factor, who holds a written agree- ment to entrust, can pledge the goods or documents for a debt incurred on the faith of such agreement before he obtained possession of them. See sect. 1 (5), and Porta/is v. Ter)\// (//). The following section deals with the rights of con- signees : — " Where the owner of the goods has given (s) Sect. 2 (1). (0 Sect. 2 (2). («) Sect. 2 (3). {v) Sect. 3. («•) Sect. 4. (jr) Sect. 0. (y) L. R. 5 Eq. 148. AGENCY. 157 possession of the goods to another person for the pur- pose of consignment or sale, or has shipped the goods in the name of another person, and the consignee of the goods has not had notice that such person is not the owner of the goods, the consignee shall, in respect of advances made to or for the use of such person, have the same lien on the goods as if such person were the owTier of the goods, and may transfer any such lien to another person " (z). " Document of title " includes, inter alia, bill of lading, dock-warrant, or " any document used in the ordinary course of business as jiroof of possession or control of goods, or authorizing or purporting to authorize, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented " (a). The Act saves the right of the true owner as between himself and the agent, and also the com- mon law powers of the agent [h) . Several provisions of the Factors Act apply to a class much wider than is included in the term " mer- cantile agents," e. (/., the 8th and 9th sections of the Act (c). Their general scope is to enable parties to deal freely in the market with those who apparently are possessed of the goods, or of the indicia to them. Brokers. — A broker is defined by Story [d) to be '' an agent employed to make bargains and contracts in matters of trade, commerce, or navigation, between {z) Sect. 7. (a) Sect. 1 (4j. (*) Sects. 12, 13. (e) See ante, p. 81. (d) § 28 ; and see Brett, J., in Foiiier v. ITollins, L. E. 7 Q. B. 61G, 158 RULES RELATING TO PARTICULAR CONTRACTS. other parties, for a compensation commonly called brokerage." He is an agent of a mercantile cha- racter, and one who makes a merely personal contract for another is not strictly a broker; e. g., A. makes an agreement on behalf of B. to sing at a concert ; A, would not be a broker {e). Brokers were at one time regulated and controlled by the Corporation of London ; certain duties were expressly imposed upon them by the regulations, and it was required of them to enter into a bond. But in 1870 an Act was passed, which practically freed the brokers from Corporation control, and all that is now required is admission. A list of those admitted is kept, and from this list names may be removed for fraud or for certain other offences (/), They are distinguishable from factors ; factors have possession of the goods, and brokers have not; more- over, whilst a factor can sue and act in his own name, a broker cannot. The difference is fully explained in the case of Baring v. Corric (g). Their mode of dealing is as follows : — when they make a contract it must be reduced to writing, and each party should get a copy of the terms ; the buyer's copy is called the bought note, the seller's the sold note. The con- tract should also be entered in the broker's book, and be signed by him. When all these documents agree, the terms of the contract are well defined, but when they differ it is a matter of some uncertainty which of them contains the actual agreement. In Heyman [e) See Milford v. Hughes, 16 M. & W. 174 ; and Me StracJian, L. R. 4 Ch. D. 123. (/) 33 & 34 Vict. c. 60. (g) 2 B. & Aid. 137, 143, 148, AGENCY. 159 V. NealeQi), Lord EUenborough decided tliat tlie entry in the broker's book was the actual contract. In Thornton v. Meu.f{i), Abbott, 0. J., said that the bought and sold notes constituted the contract, but this is directly contrary to the decision in Sievcu-right V. Archihald, and is not considered law by Benja- min (y). If the bought and sold notes differ, and there is no entry (or an unsigned entry only), the contract falls through (A-). A broker is primarily agent for the vendor, but when the bargain is completed he represents both, and can bind both by his signature. He cannot sue in his own name, unless custom or express arrange- ment allows of it. He is generally not liable (/) on the contract, but he may be so by custom (;;?), con- tract, or if on the note he appears as principal [e. g., "sold to you by me"), but here, in accordance with general principles of agency, the other party may hold the imdisclosed principal Kable. As brokers have not possession of goods, it follows that they have no hen ; but to this there is an exception in the case of insurance brokers, who have a Hen, and this extends even against an agent who employs them, but who has given no notice of his character [n). {Ji) 2 Camp. 237. And that is supported by Parke, B., in Thornton v. Charles, 9 M. & W. 802 ; and by tbe judgments in Sievewright v. Archibald, 17 Q. B. 115 ; 20 L. J. Q. B. 529. (i) Moo. & M. 43. {j) See Benjamin, pp. 255 et seq., where a full consideration of the cases and rules vrill be found. {V) Sievewright v. Archibald, iihi suj)ra ; and see cases in Ben- jamin on Sales. {I) Fairlie v. Fenton, L. R. 5 Ex. 169. (>n) Humphrey v. Bale, 7 E. k B. 266 ; and E. B. & E. 1004. («) Mann v. Forrester, 4 Camp. 60 : Maauss v. Henderson, I East, 335. ICO RULES RELATING TO PARTICULAR CONTRACTS. Auctioneer {p). — An auctioueer is a "person authorized to sell goods or merchandize at a public auction or sale for a recompense." He is agent for tlie seller, and when the goods have been knocked down, for the buyer also, and thus his signature is sufficient to satisfy the Statute of Frauds, unless, indeed, he is himself the vendor {p) ; in that case, his clerk's signature would probably suffice {q). Unless the principal is disclosed, he is personally liable, and may himself sue (r). He must not dele- gate his authority (s), he should sell only for money, and at the best price, and he is answerable for the proper storage of goods whilst they are with him. He has a special property in them, and a lien for his charges. Commission Agent. — This is a name often given to a factor, and a commission agent is treated by Story as one and the same with a factor. More commonly the name is applied to factors who buy from, and sell for, a foreign principal. It is often a matter of difficulty to determine whether, in a given transaction, a person is the vendor or the commission agent, /. c, whether the case is one of sale or of agency ; for tliis see Ireland v. Livingstone (t) and Cassahoglon v. Gibhs {u). Bel Credere Agent. — This is the name given to an agent for sale, who gives an undertaking to his (o) See Story's Agency, § 27. {p) Farehrother v. Simmons, 5 B. & Aid. 333. Iq) Bird v. Boulter, 4 B. & Ad. 443. ()■) Williams v. MilMgton, 1 H. Bl. 85. (s) Coles V. Trecothick, 9 Ves. 234. {t) L. R. 2 Q. B. 99 ; 5 H. L. 395. (m) 9 Q. B. D. 220. NEGOTIABLE INSTRUMENTS. 161 employer that nothing shall be lost owing to the default of the third party. MiscellaneoKS.'] As to the rights and duties in their capacity as agents of partners (c), ship- masters {w), and ship-hushands (.r), see later. III. Negotiable Instruments. In a former chapter it was stated that the differ- ence between negotiability and assignability lay in this, that whereas a contract merely assigned cannot be sued upon till notice of assignment has been given in writing to the debtor, a contract negotiable can, subject to special rules, support a suit by its holder without any such notice ; and further, he can, in general, sue on it free fi'om any defects in the title of the i:)rior owner. This may be illustrated by ex- amples : (a) A. owes B. 500/. ; he gives a written recognition of the debt — say the shortened form of acknowledgment known as an I. 0. U. This cannot be handed on to C. so as to enable C. to sue on it, unless A. receives a written notice of the transfer ; even then any defence good against B., c [/., no con- sideration, will be good against C. ; (b) A. gives B. a bill of exchange for 500/ ; here, when C. gets the bill from B. he can sue A. without giving special notice of the assignment, and if he is a bond fide holder in due course (y), he is not liable to any per- (v) Page 232 ; and Story's Agency, § 37. {w) Page 326 ; and Story's Agency, \ 36. [x) Page 325 ; and Story's Agency, \ 35. (y) See later, p. 180. M. M 162 RULES RELATING TO PARTICIXAR CONTRACTS. sonal defence wliicli luiglit have been good against B., c //., fraud by B. in obtaining the bill from A. The character of negotiabilit}' does not attach itself to every instrument, but only to those which have obtained it either by custom or statute. These are bills of exchange, promissory notes, bank-notes, cheques, and to these may now be added, bills of lading and certain bonds payable to bearer. The number of these may increase, as the tendency of the law seems to be to recognize the custom of the city, when that custom treats instruments as negotiable. A contrary practice would be " founded on the "siew that the law merchant .... is fixed and stereo- typed, and incapable of being expanded and enlarged so as to meet the wants and requii*ements of trade or the varying circumstances of commerce" {1j). The manner in which the negotiability of the various instruments became recognized in English law is fully treated of in the judgment of Cockburn, L. C. J., in Goodmn v. Roharts {c). The Com-t in that case decided, that scrip issued in England by the agent of a foreign government, entitling the holder to certain bonds to be issued, is negotiable at law, if so recognized by custom of bankers and dealers (r/). The case is distinguishable from Crouch V. TJic Credit Fonder [e) (iu which it was held that it is not competent for anyone to give a character of negotiability to a security not negotiable by the law merchant), on the ground that in that case the docu- {b) Cockbiim, L. C. J., in Goodwin v. Jiobarts, L. E,. 10 Ex. 346. (c) Ubi Slip. {d) See Gorgicr v. Mievillc, 3 B. & C. 45. (e) L. K. SQ. B. 374. NEGOTIABLE INSTRl'MEXTS. 163 luents contained conditions siicli as to negative the idea that tliey could be negotiable ; but Cockbiirn, L. 0. J., expressly refused to follow it, so far as it decided that recent custom could not create negotia- bility, " while we quite agree that the greater or less time dimng which a custom has existed may be material in determining how far it has generally prevailed, we cannot think that, if a usage is once sho^\^l to be universal, it is the less entitled to pre- vail because it may not have formed part of the law merchant as previously recognized and adopted by the Courts" (,/'). In giving judgment in Goodwin v. Roharfs {(j), the learned Chief Justice said : " Bills of exchange are known to be of comparatively modern origin, having been first brought into use, so far as is at present loiown, by the Florentines in the 12th, and by the Venetians about the 13th century. The use of them gradually found its way into France, and, still later, and but slowly, into England. . . . According to Professor Story . , . . ' the introduction and use of bills of exchange in England .... seems to have been founded on the mere practice of merchants, and gradually to have acquired the force of a custom.' With the development of English commerce the use of these most convenient instruments of commercial traffic would of coiu-se increase, yet, according to Mr. Chitty, the earliest case on the subject to be found in the EngHsh books is that of Martin v. Boure {h), in the first of James I. Up to this time (/) L. R. 10 Ex. 35G. Iff) L. R. 10 Ex. 337, 346. {h) Cro. Jac. 6. m2 161 RIFLES RELATING TO PARTICULAR CONTRACTS. the practice of making these bills negotiable by indorsement had been unknown, and the earlier bills are found to be made payable to a man and his assigns, though in some instances to bearer. But about this period, /. c, at the close of the 16th or the commencement of the 17th century, the practice of making bills payable to order, or transferring them by indorsement, took its rise. Hartmann, in a very learned work on bills of exchange, recently (i) pub- lished in Germany, states that the first-known mention of indorsement of these instruments, occurs in the Neapolitan Pragmata of 1607. Savary .... has assigned to it a later date, namely, 1620. From its obvious convenience, the practice speedily came into general use, and, as part of the general custom of merchants, received the sanction of the Court. At first, the use of bills of exchange seems to have been confined to foreign bills between English and foreign merchants. It was afterwards extended to domestic bills between traders, and finally to bills of all per- sons whether traders or not." See Chitty on Bills, 8th ed., p. 13. " In the meantime, promissory notes had also come into use, differing herein from bills of exchange, that they were not drawn upon a third party, but con- tained a simple promise to pay by the maker, resting, therefore, upon the security of the maker alone. They w^ere at first made payable to bearer, but when the practice of making bills of exchange payable to order, and making them transferable by indorsement, had once become established, the practice of making {i) This was written ia 1875. NEGOTIABLE INSTRUMENTS. 165 promissory notes payable to order, and of transferring them by indorsement, as had been done with bills of exchange, speedily prevailed, and for some time the Courts of law acted upon the usage with reference to promissory notes, as well as ^\'ith reference to bills of exchange. In 1G80, in the ease of Shclden v. Hentley{j), an action was brought on a note under seal, by which the defendant promised to pay to bearer 100/., and it was objected that the note was void, because not made payable to a specific person. But it was said by the Court, ' Traditiofacit chartani loqui, and by the delivery he (the maker) expounds the person before meant ; as when a merchant pro- mises to pay to tlte bearer of the note, anyone that brings the note shall be paid.' Jones, J., said that, ' it was the custom of the merchants that made that good'(A-). ... In Williams v. Williams {I), where the plaintiff brought his action as indorsee as against the i^ayer and indorser of a promissory note, declar- ing on the custom of merchants, it was objected on error, that the note having been made in London, the custom, if any, should have been laid as the custom of London. It was answered 'that this cus- tom of merchants was part of the common law, and the Court would take notice of it ex officio, and therefore it was needless to set forth the custom specially in the declaration, but it was sufficient to say that such a person, secundum usum et consuetu- dinem mercatorum, drew the bill,' and the plaintiff had judgment. U) 2 Show. 160. (k) See Bromivich v. Lloyd, 2 Lutw. 1582. (0 Carth. 269. 166 RULES RELATIKG TO PARTICULAR CONTRACTS. " Thus far the practice of merchants, traders, and others, of treating promissory notes, whether payable to order or hearer, on the same footing as hills of exchange, had received the sanction of the Courts; but Holt having become Chief Justice, a somewhat unseemly contest arose between him and the mer- chants as to the negotiability of promissory notes, whether payable to order or to bearer, the Chief Justice taking what must now be admitted to have been a narrow-minded view of the matter, setting his face strongly against the negotiability of these instruments, contrary, as we are told by authority, to the opinion of Westminster Hall, and in a series of successive cases, persisting in holding them not to be negotiable by indorsement or delivery. The in- convenience to trade arising therefrom led to the I passing of the statute of 3 & 4 Anne, c. 9, whereby promissory notes were made capable of being assigned by indorsement, or made payable to bearer, and such assignment was thus rendered valid beyond dispute or difficulty. It is obvious from the preamble to the statute, which merely recites that ' it has been held that such notes were not within the custom of mer- chants,' that these decisions were not acceptable to the profession or the country. Nor can there be much doubt that, by the usage prevalent amongst merchants, these notes had been treated as securities negotiable by the customary method of assignment as much as bills of exchange properly so called. The Statute of Anne may indeed, practically speak- ing, be looked upon as a declaratory statute, con- firming the decisions prior to the tune of Lord Holt. " "We now arrive at an epoch when a new form of NEGOTIABLE INSTRUMENTS, 167 security for money, viz., goldsmiths' or hanTxcm'' notes, came into general use. Holding them to be part of the currency of the country, as cash, Lord Mansfield and the Com-t of King's Bench had no difficulty in holding, in Miller v. Race {m), that the property in such a note j)asses, like that in cash, by delivery, and that a party taking it bond Jide, and for value, is consequently entitled to hold it against a former holder from whom it has been stolen. "In like manner it was held, in Collins v. Mar- tin (»), that where bills indorsed in blank had been deposited with a banker, to be received when due, and the latter had pledged them with another banker as security for a loan, the owner could not bring trover to recover them from the holder. " Both the decisions, of course, proceeded on the ground that the property in the bank-note jiayable to bearer passed by delivery, that in the bill of exchange by indorsement in blank, provided the acquisition had been made ho)id fide. "A similar question arose in Wookeij v. Pole{o), in respect of an exchequer bill, notoriously a secu- rity of modern growth. These securities being made in favour of blank or order, contained this clause, ' If the blank is not filled up, the bill will be paid to bearer.' Such an exchequer bill, having been placed, without the blank being filled up, in the hands of the plaintiff's agent, had been deposited by him mth the defendants on a ho)ia fide advance of money. It was held by three judges of the Queen's Bench, Bayley, J., dissentienfe, that an exchequer bill was a negoti- (m) 1 Burr. 452. («) 1 B. & P. 648. (o) 4 B. & Aid. 1. 168 RULES RELATING TO PARTICULAR CONTRACTS. able security, and judgment was therefore given for tlie defendants. The judgment of Hokoyd, J., goes fully into the subject, pointing out the distinction between money and instruments which are the repre- sentatives of money, and other forms of property. ' The Com-ts,' he says, ' have considered these instru- ments either promises or orders for the pa;yTnent of money, or instnmients entitling the holder to a sum of money, as being appendages to money, and following the nature of their principal.' After referring to the authoiities, he proceeds : ' These authorities show that not only money itself may pass, and the right to it may arise, by currency alone, but fui'ther, that these mercantile instruments, which entitle the bearer of them to money, may also pass, and the right to them may arise, in like manner, by currency or delivery. These decisions proceed upon the nature of the property {i.e., money) to which such instruments give the right, and which is in itself cmTent, and the effect of the instnmients, which either give to their holders, merely as such, a right to receive the money, or specify them as the pereons entitled to receive it.' " Another very remarkable instance of the efficacy of usage is to be foimd in much more recent times. It is notorious that, with the exception of the Bank of England, the system of banking has recently imdergone an entire change. Instead of the banker issuing his own notes in return for the money of the customer deposited ^vith liim, he gives credit in account to the depositor, and leaves it to the latter to di'aw upon him, to bearer or order, by what is now called a cheque. Upon this state of things the NEGOTIABLE INSTRUMENTS. 169 general coiirse of dealing between bankers and their customers has attached incidents previously unknow^l, and these decisions of the Courts have become fixed law. Thus, while an ordinary drawee, although in possession of funds of the drawer, is not bound to accept, unless by his own agreement or consent, the banker, if he lias funds, is bound to pay on presenta- tion of a cheque on demand. Even admission of funds is not sufficient to bind an ordinary drawee, while it is sufficient with a banker ; and money deposited with a banker is not only money lent, but the banker is bound to repay it when called for b^' the draft of the customer (^). Besides this, a custom has grown up amongst bankers themselves of mark- ing cheques as good for the purpose of clearance, by which they become bound to one another (q) . " Though not immediately to the present purpose, bills of lading may also be referred to as an instance of how general mercantile usage may give effect to a Avriting which without it ^\•ould not have had that effect at common law. It is from mercantile usage, as proved in evidence, and ratified by judicial decision in the great case of Lickbavrow v. Mason {>•), that the efficacy of bills of lading to pass the j)roperty in goods, is derived. " It thus appears that all these instruments which are said to have derived their negotiability from the law merchant had their origin, and that at no very remote period, in mercantile usage, and were adoj)ted {p) See Pott V. Ckgff, 16 M. & W. 321. [q) As to the negotiability of cheques, see McLean v. The Clydes- dale Banking Co., 9 App. Ca. 95. (r) 2 T. R. 63. 170 RULES RELATING TO PARTICULAR CONTRACTS. into the law by our Courts as being in conformity Avitli the visages of trade." The above extract has been quoted at length, as in it is found in authoritative language an account of liow and when the various negotiable instruments obtained theu" negotiable character. From the re- marks of the learned judge it aj)pears that the negotiability of (i) bills of exchange arose from mercantile custom, fully recognized about the be- ginning of the 17th century; (ii) promissory notes, from statute founded on and declaratory of custom ; (iii) bank notes, from custom first fully recognized in Miller v. Have (s) ; (iv) cheques, from custom of still later growth; (v) bills of lading, from custom first fully expounded in Liclhan'oto v. Mason (t) ; (vi) such bonds and scrip pa^-able to bearer wliich are custo- marily recognized as negotiable from such custom, legally held binding in Gorgier v. Mieville {ti), and Goo(hrin v. JRobarf.s (r). Bills of Exchange. The law relating to the most important of the above-mentioned instruments has been an-anged in the form of a code (which, however, is merely decla- ratory (iv)), in the Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61), and in it will be found the whole law on the subject ; but (a) all rules of common («) 1 Burr. 452. (i!) 2 T. E. 63. (u) 3 B. & C. 45. (v) L. R. 10 Ex. 337 : 1 App. Ca. 476. {w) Lord Blackburn in McLean v. The Cli/dcsdale BaiiVing Co., 9 App. Ca. 96 ; Bethell v. Bethell, 34 Ch. D. 561. NEGOTIABLE INSTRUMENTS. 171 law and the law merchant, relating to bills of* exchange, promissory notes, and cheques, remain in force except in so far as they are inconsistent with the Act (.r) ; (h) the Act is not to affect the Stamp Act, 1870, the Companies Acts, 1862, &c. {>/), or the ndes, as administered in bankruptcy, relating to negotiable instruments {z) ; (c) the validity of any usage relating to dividend warrants or the indorse- ment thereof, is not to be affected thereby («) . Definition. — "A bill of exchange is an uncondi- tional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time, a sum certain, in money, to or to the order of a specified person, or to bearer" {h). From this it will be seen that what is required is a T\Titten instrument to wliich there are three parties, that the instrument must be an order to pay money, and that it must be uncondi- tional ic) . Thus, it must not order any act to be done {d), but payment and payment in money only ; nor must it order pajnnent out of a particular fund, for this would not be unconditional (e), but it may specify a fimd out of which the payer may re- {x) Sect. 97 (2). The references to sections are to those of the Bills of Exchange Act, 1882. (y) Sect. 97 (3), (a) and (b). (;) Sect. 97 (1). («) Sect. 97 (3), (d). {b) Sect. 3 (1). (c) That is, the l/ill must not be conditional. As to conditional acceptances and indorsements, see below. (d) Sect. 3 (2). (e) Sect. 3 (a). 172 RULES RELATING TO PARTICULAR CONTRACTS. imburse himself (/). The usual form of a bill is as follows : — 100/. London, January 1st, 1889. [Two months] {g) after date pay [C. D.], (stamp.) or [order] (//), the sum of [one hundred pounds sterling] for value received. To Mr. E. F. A. B. Loudon. The three parties are styled respectively, the drawer A. B., the payee C. D., and the drawee (who even- tually becomes acceptor) E. F., but the bill is good even if the drawer and drawee be one and the same person (?) , in which case the bill may be treated as a promissory note if the holder so elect {j ) . In any event the drawee must be named with reasonable certainty, and if the bill is not payable to bearer, the same will apply to the payee {k). The date should be inserted, but if a bill is issued undated, the omission is not fatal (/), and provisions are made in the Act for such cases {m). It may also be stated here that a date on the bill is, in the absence of evidence to the contrary, deemed to be the true date, and that an in- strument to which the Act applies may be anti-dated, post-dated, or dated on a Sunday («). The amount (/■) Sect. 3 (3). Crofton v. Crofton, 33 Ch. D. 612. (g) Or "on demand," or "after sight," or " on [Jan. 1889]." (A) Or bearer. (i) Sect. 5. [j) Sect. 5 (2). {k) Sects. 6 (1), and 7 (1). It has been allowed to add the drawer's name after the acceptor's death. Carter v. White, 'lb Ch. D. 666. {I) Sect. 13 (1). (w) Sect. 12. («) Sect. 13. KEGOTIABLE INSTRUMENTS. 173 of the bill (which should be certain (o) ) is also of great impoi"tance ; but this may be added at any time, pro- vided that an unreasonable time is not allowed to elapse. Thus, if A. draw a bill in blank, and hand it to B., B. may fill in the bill as he likes, provided it does not exceed the amount covered by the stamp [p) . What is or is not a reasonable time within this mean- ing, is a question of fact to be determined upon each occasion ; but a holder in due course (q) is never pre- judiced, whatever may be the period that has elapsed, provided he has obtained the bill after completion. The words " value received " are usually inserted, but there is no necessity for this, as value is always presumed until contradicted. The bilimay be written on paper, or on parchment, or on anything except on a metalhc substance, and it may be written in pencil, or in ink, or may be par- tially or wholly printed (r). Every bill of exchange and promissory note must be stamped. For the full particulars, see later. It may, however, be observed in this place that the stamp must be on the contract at the time of execution, and that it must be a bill or note stamp. Instruments which do not come within the above definition of a bill of exchange, may, nevertheless, be treated as such for the pui-pose of the Stamp Act. Parties. — The Act declares that capacity to incur liability on a bill is co-extensive with capacity to con- tract (s), as to which, see ante, p. 25. But the (o) Sect. 9. if) Sect. 20. (q) As to who is such a holder, see below. {»•) Byles on Bills, p. 85. («) Sect. 22. 174 RULES RELATING TO PARTICULAR CONTRACTS. following rules are peculiar to the present subject : — No person who has not signed can be liable as drawer, indorser, or acceptor, except that a trade sig- nature, or signature under an assumed name is the equivalent of signature in the true name {t). J^l^^ ^ i An agent may sign for his principal, and if he uses '" 1 words tending to show that he signs qi(a agent merely he incurs no personal liability (w) . If the signature is made by procuration, this puts the other parties on enquiry as to the extent of the authority (v) ; and if the contract be beyond the terms of this, the principal • is not liable. As to bills signed by one partner or more on behalf of the firm, see later under Partnership (w) ; and see Byles on Bills, p. 50. Wliere a bill is drawn or indorsed by an infant, or by a corporation having no capacity to contract on the bill, the holder may still enforce it against any other parties having power to contract {x) ; i.e., the bill is passed by the infant's signatirre, but is passed " sans recours " to him. Acceptance. — The liability of the drawee does not arise until he has accej)ted the bill (y), and this is done by writing his name across the face of it, some- times the word " accepted " being added. The Act defines acceptance as " the signification by the drawee of his assent to the order of the drawer" (s); and it it) Sect. 23. (m) Sect. 25. \v) Sect. 26 (1). [w) Page 233. [x) Sect. 22 (2). \y) Frith V. Forles, 32 L. J. Ch. 10. (3) Sect. 17 (1). NEGOTIABLE INSTRUMENTS. 175 prescribes that (a) the signature of the drawee must { be written on the face of tlie bill, (b) there must be no stipulation to be performed other than to pay in , money (f^). The bill may be accepted though in- complete, though already dishonoiu-ed, and though overdue (b); but it will not be binding and irrevocable until after delivery of the instrument (c) . Delivery is always presumed to have been properly made when the bill is in the hands of a holder in due course, otherwise it must be shown that delivery was made by or on the authority of the party to be boimd by it, and that it was of an unconditional nature {d) . It is alwaj^s advisable to present the bill for accept- ance, for if refused, the parties, other than the drawee, become immediately liable ; and it is sometimes neces- sary, i.e., when a bill is payable after sight, when it is payable at a place other than the place of residence or business of the di'awee, and when it is expressly stipulated that presentation shall be made {e) . The holder must present the bill or negotiate it within a reasonable time : what is a reasonable time de- pending upon the facts of the particular ease. Thus, on Friday a person received a bill on London, and the bill being payable after sight, had to be pre- sented for accejitance ; the holder presented it on Tuesday, and the jury, regarding the fact that there was no post on Satiu'day, thought the time reasonable (/). The penalty for non-presentation (a) Sect. 17 (2). (b) Sect. 18. (c) Sect. 21 (1). {d) Sect. 21. (c) Sect. 39. (/) Fn/ V. mil, 7 Taunt. 395 ; and see Shutc v. Jlohins, 1 M. & M. 133; 3 C. &P. 80. 176 RULES RELATING TO PARTICULAR CONTRACTS. is discliarge of the drawer and all prior in- dorsers, (g) The following rules as to presentment are given in sect. 41 of the Act : — *' (a) The presentment must be made by or on behalf of the holder to the drawee, or to some person authorized to accept or refuse acceptance on his behalf, at a reasonable hour on a business day, and before the bill is overdue. " (b) Where a bill is addressed to two or more drawers, who are not partners, presentment must be made to them all, unless one has authority to accept for all, then presentment may be made to him only. " (c) Where the di'awee is dead, presentment may be made to his personal representative. " (d) Where the drawee is bankrupt, presentment may be made to him or to his trustee. " (e) Where authorized by agreement or usage, a presentment through the post-office is sufficient." Presentment, though otherwise necessary, is excused in_±lie following cases, and the holder may treat the bill as though acceptance had been refused, i. c, may — in fact, must, if he desires to hold his remedies against the di^awer and the indorsers — treat the bill as dis- honoured {/)) : — " (a) AVhere the di-awee is dead or bankrupt, or is a fictitious person, or a person not having capacity to contract by bill. " (b) Where, after the exercise of reasonable dili- gence, the presentment cannot be effected. " (c) Where, although the jjresentment has been irregular, acceptance has been refused on some other ground." iff) Sect. 40 (1). (h) Sect. 40 (2). NEGOTIABLE INSTRUMENTS. 177 Acceptance for Honotir supra proted. — If the drawee does not accept upon presentment, it is the duty of the holder at once to treat the bill as dishonoured, and he may, if he thinks fit, note and protest (/) the bill. In that case, if the bill is not overdue, and if the holder does not object, any person not already liable on the bill may aceejit it for the whole or part of the sum drawn {j), and such person is styled an , acceptor for honour supra protest. He must sign the bill, and specify thereon that his acceptance is for honour, and if it be for the honour of any other than the drawer, it must state for whose honour it has been accepted. The course of conduct which should be pursued by a holder of a bill dishonoured by non-acceptance, and who has an offer of an acceptance for honour is thus described : " He should first cause the bill to be pro- tested, and then to be accepted sup)ra protest, in the manner above described. At maturity he should again present it to the drawee for payment, who may, in the meantime, have been put in funds by the drawer for the purpose. If payment by the drawee be refused, the bill should be protested a second time for non-payment, and then presented for payment to the acceptor for honour" {k). Qualified Acceptances. — Though the bill, as an order, may not be conditional, the acceptance may be so, but the quahfication must be expressly set out in the acceptance. The following quahfications are allowed : (i) conditional, i. e., which make the bill payable on (i) ^ee post, p. 189 ; and see the Act, ss. 93, 94. \j) Sect. 65. (k) Byles on Bills, p. 273; and see Hoare v. Cazcmve, 16 East, 391 ; Williams v. Germaine, 7 B. ik C 477. M. N 178 KULES RELATING TO PARTICULAR CONTRACTS. a condition; (ii) partial, /.c, wliicli limits acceptance to a named portion of the amount ; (iii) qualified as to time ; (iv) acceptance by some, but not all, of the di'awers ; (v) local qualification, e.g., " accepted pay- able at the London and Coimty Bank, Lombard (Street, only." But an acceptance to pay at a parti- cular place is unqualified, and payment may be de- manded anywhere, unless it states that the payment is to be made at a particular place only, or not else- where. The holder is not bound to take a qualified acceptance, and if the di'awer refuses any other, the bill may be treated as dishonoured by non-accept- ance (/). Negotiation. — The characteristics of negotiability have already been pointed out, and it now remains only to show in what manner the instnmient is put in cmTency. The Act says that a bill is negotiated w^hen it is so transferred as to give the transferee the property in the bill. In the case of bills payable to bearer, this is done by mere delivery (;») ; in the case of those jjayable to order, indorsement, in addition to ' delivery, is requisite {n) ; and transfer without in- dorsement gives only such rights as the transferor had in the bill, with a right to requii-e indorsement (o). Thus, if A. has a bill payable to bearer, and he gives it to B., B. holds it free of equities, and with all A.'s rights of suit ; if it be payable to order, B. may re- quire A. to indorse it, but until this is done he holds it subject to any defence which could be raised {I) Sect. 44 (1). (;n) The transferor being in this case styled the "transferor by delivery," he is not liable on the bill. Sect. 58 (1), (2). («) Sect, 31. (o) Sect. 31 (4). NEGOTIABLE INSTRUMENTS. 179 against A. The indorsement must be "tt^itten on the hill (p), and signed by the indorser (in general, the signature alone is placed on the back, or, if there be not sufficient room on the bill, then on an annexed paper styled an " allonge," and this is sufficient) ; if his name is mis-spelt, he should sign according to the mis-spelling, and then should add liis connect name. A partial indorsement is useless as a negotiation ; so would be the signatm'e of one of several parties to whose joint order the bill is payable, unless such party is authorized by the others to act in this matter for them {q) . Indorsements are of two kinds : (1) in blank, (2) special. An indorsement in blank is foimd where the signatm-e of the indorser is written with- out any direction as to whom or to whose order the bill is to be payable, and it is then payable to bearer ; a special indorsement specifies the intended payee (r). Thus, if A. indorse a bill to " B. & Co. or order," this operates as a special indorsement, and if B. & Co. desii'e to negotiate the bill they must themselves indorse it ; this they may do either in blank or specially. It is always at the option of a holder to convert a blank into a special indorsement («). Indorsements are sometimes conditional, e.g., in- | dorsement by an agent or other person in such a way as to negative personal liability. A particular form of conditional indorsement is the restrictive indorse^- \ iiient{t). This expresses that it is a mere authority [p) As to indorsement on copies, see sect. 32 (1). Iq) Sect. 32. (>•) Sect. 34. [s) Sect. 34 (4). {t) Sect. 35. 180 KULES RELATING TO PARTICULAR CONTRACTS, to deal with the hill as directed, or it may prohibit negotiation; ('.(j., "Pay D. only," "Pay D. or order for collection," " Pay to A. B. or order for my use." Whether it does in so many words prohibit negotiation or no, it puts an end to the negotiable character, and no rights can be transferred under the bill without express power given thereon. Whatever is in accordance with such power transferred, is so subject to all equities available against the first restrictive indorser. It sliould be noticed that an indorsement admits the signature and capacity of those who are pnor 1 parties to the instrument {ii). m gilts and LiahUities. Rights of the Holder. — The holder of a bill is defined to be " any one in actual or constructive possession of the bill, and entitled, at law, to recover or receive its contents from the parties to it " (r). According to the present Act, holders fall into one of two divisions, \iz., those who are holders in due course, and those who are not. A holder in due course is one who has taken a bill: (1) complete and regular on the face of it; (2) before it was due ; (3) with bona fides and for value ; and (4) "without notice of any pre"vdous defect i of title. All foiu' are requisite (?r). The rights of the holder in due course are {x) to sue any or all the parties on the bill in his o^sti name, (m) Lambert v. Oakes, 1 Ld. Raym. 443. {v) See Byles on Bills, chap. 1. («.') Sect. 29. {x) A pledgee is not a holder in due course. Byles on Bills, p. 200. II NEGOTIABLE INSTRUMENTS. 181 and to be able to do so free of any defence depending upon any defect of title or any personal defence available to prior parties amongst themselves {y). A holder who has not obtained the bill in due •course may sue on it, but is liable to be defeated by such defences. He may, however, indorse it to a holder in due course, in which case the latter has full rights ; he may also receive payment in due ^om'se, and may give the payer a valid receipt {z). A holder, therefore, cannot be " in due com-se," tmless he is ignorant of any fraudulent or illegal inception of the bill, and unless he has given value for it. This, which is provided by the 29th section of the Act of 1882, is very old law. " When money or notes are paid bond fide, and upon a valuable consideration, they never shall be brought back by the true o"WTier ; but where they come mala fide into a person's hands they are in the nature of specific property ; and if their identity can be traced and ascertained, the party has a right to recover" {(i). It thus becomes important to consider what will amount to mala fides, and this may be said to be knowledge of any fraud or illegality connected with the bill which would, as against the person guilty, amount to a complete answer to a suit upon it. Such knowledge will be imphed when the holder who claims to be a holder in due course had information given him, which, but for his negligence in making enquiries, would have been sufficient to lead him to the discovery of a flaw in the inception of the bill, in (y) Sect. 38. [z) Sect. 38 (3). (a) Lord Mansfield in Clarice v. Shoe, Cowp. 197. 182 RULES EELATIXG TO TARTICULAR CONTRACTS. other words, negligence tliat *' would satisfy any reasonable man tliat the party guilty of it must or ought to have suspected that the dealing in which he was engaged was tainted with fraud" (6). In a recent case of importance, dealing with this question of notice, Earl of Sheffield v. The London Joint Stock Bank (c), Lord Sheffield gave Easton certain bonds, which were of a negotiable character, and on these money was to be raised. Easton gave these securi- ties to M., a money lender, as security for an advance, and M. in tmn gave them as security for large loan running accounts to the defendant bank. The bank was not expressly told that the securities belonged to M.'s customers, but they had reason to believe this might be the case. The House of Lords decided that neglecting to enquii-e took from them their position of bond fide holders without notice, and this whether the secmities were or were not negoti- able. It often becomes important to decide on whom lies the biu-den of proof of showing ho)ia fides and value ;. and the ordinary rule is this, when_ fraud on the part of a previous holder has once been shown, every subsequent holder is put jto^ the43roof jthat he gavo value for the instrument [el), and further, if fraud or illegality is proved, it has recently been held that he must show that he is not cognizant of or a party to it {e). But until such defect is shown, a holder is [b) See note to Miller v. Eacc, 1 Sm. L. C. 516 ; and Solomons v. The Bank of Evqland, 13 East, 135. (c) 13 App. Ca. 333. \d) Hall V. Feathcrstonc, 3 H. & N. 284. \e) Taham v. Haslar, 23 Q. B, D. 345. Sect. 30 (2). ^'EG0T1ABLE INSTRUMENTS. 183 deemed to be a holder in due course (/) , and value is presumed (./'). The defects in title specially mentioned in the Act, which amount to an answer to an action on the bill by any party to the defects are — fraud, diu-ess, force or fear, illegal consideration, and negotiation in breach of faitli, or imder circumstances amounting to a fraud {(j). The true holder in due course thus has a strong position ; a bill which has been found or even stolen may safely be sued on by him, and there can be no answer to it, except that in the case of bills payable to order, no title is conveyed except by an indorse- ment as against the person making it (//). It has already been said that to constitute a holder " in due com-se," he must have acquired the bill previous to its maturity, for a bill which is negotiated after that date is taken subject to any defence then (?. e., at maturity) available against it, /. r'., its negotiability ceases (/). A bill payable on demand is over-due when it appears on the face of it to have been in cu-culation for an unreasonable time {j ) ; the maturity of other bills depends upon their date and wording. Payment before maturity will not kill the bill, and if it is put in circulation afterwards, such payment will be no answer to a holder in due course {k). If the bill is lost before it is over-due, the drawer (/) Sect. 30. Q) Sect. 29 (2). {h) Ante, p. 178. (t) Sect. 36 (1) and (2) ; Tinson v. Francis, 1 Camp. 19. (.;■) Sect. 36 (3). {k) Burbagey. Manners, 3 Camx). 193. 184 lU LES RELATING TO PARTICULAR CONTRACTS. may be compelled to give a similar duplicate bill, receiving security for indemnity against any person who may become possessed of the lost instrument (/). A case of some peculiarity arises when the bill comes properly into the possession of a holder, who has previously signed it as drawer, indorser, &c., e. g., A. di'aws a bill in favour of C. ; C. indorsed it to D., D. to E., and E. to A. In this case A. can- not enforce the bill against any intervening party, for they themselves could look to him for indemnity. This is styled precluding him from suing on the ground of " eii'cuity of action." But, if owing to any circumstances the holder would not have been liable to the particular indorser whom he is suing, then his own previous signature is no answer in the action. For instance, A. bought goods of B., and C. was to be surety for the price ; B. drew bills on A., indorsed them to C, who re-indorsed them to B., and it was decided that as in this case there was a state of facts negativing the intention of reserving a right in C. of an action against B., "circuity of action" Avould not avail as a defence in an action by B. against C. (m). Mights of Parties other than the Holder. — The various indorsers of the bill are all liable to the holder, and when any subsequent indorser has paid, then also to him. Correlatively, therefore, each party who has put his name to the bill may claim against any who previously have signed it, whether by way of acceptance, drawing, or indorsement; e.g., the drawer may fall back on the acceptor to compensate ^r i ' ,■ ■ < (/) Sect. 69. (;«) Wilkinson ^- Co. v. Unwin, 7 Q. B. D. 636. NEGOTIABLE INSTRUMENTS. 185 for the money paid ; the first indorser has his remedy against the acceptor and the drawer, and so forth. Any party but the acceptor may sign the bill " sans recoiirs," i.e., may put his name on the bill, expressly, and on the instrument, disclaiming any personal lia- bility, and any party taking after tliis with notice, is bound by the disclaimer {ii). The transferor by delivery (without indorsement) is not liable in aiii/ way (o). It will be seen from the above that a bill with several names attached is a form of contract of suretyship (p) ; the acceptor being the principal debtor, the other parties being sm-eties with regard to him, but generally not in regard to each other {q) . Against them indemnity can be claimed by all who subsequently make themselves liable on the bill (r). Notice of Dishonour. — When a bill has been dis- honoured either by non-acceptance or by non-pay- ment (s), there is, in the former case, an immediate light of recourse against the drawer, and in the latter against the acceptor, the drawer, and the successive indorsers ; but these have, in general, a right to notice of dishonom", and those who receive no notice when such is requisite are freed from liability. Notice must be given within a reasonable time after •dishonour, and, in the absence of special circum- stances, these rules apply : — (i) where the parties, who are to give and receive notice respectively, live in the same place, it should be sent in such time as («) Sect. 16. {o) Sect. 58. [p) See Jones v. Broadhtirst, 9 C. B. 173. \q) Macdonaldy. IVhitJield, 8 Aop. Ca. 733, 744. (/•) See Chapter VIII. (s) As to payment, see below, p. 192. 186 RULES RELATING TO PARTICULAR CONTRACTS. will ensure its reception on tlie clay after dishonour ; (ii) where they live in different places, it should be sent on the next day after dishonour, or if the post be too inconvenient for this,, then on the day after that (/). If the bill is in the hands of an agent, he has a similar time allowed him wherein to communi- cate with his principal, and each person has a similar time wherein to communicate with prior parties ; also — (a) it shoidd be given by the holder, or by an indorser who is himself liable on the bill, or by his proper agent acting on his behalf (ii) ; (b) it may be given to the person entitled to it, to his agent on his behalf (r), to his personal representative {ic), or to hi& trustee in banla-uptcy (jr) , according to circumstances ; (e) no particular form is required ; writing, personal communication, or partly one and partly the other,, will suffice, pro\ided that the identity of the bill and its dishonom- is clearly indicated (?/) ; (d) when given by the holder it enures for the benefit of aU. subse- quent holders, and of all prior indorsers who have a right against the i:)ai'ty to whom it has been given ; and notice given by an indorser is available to the holder and to all who indorsed subsequent to the person who has received notice (::). Notice is required in the generality of cases, and that this should be is clearly equitable. A man may have indorsed a bill away, value 100/., due on {f) Sect. 49 (12). When the letter is posted, subsequent mis- carriage will not affect the party's rights. {u) Sect. 49 (I) and (2). I'v) Sect. 49(8). (w) Sect. 49 (9). [x) Sect. 49 (10). (y) Sect. 49 (5), (6), (7). For examples of notices held sufficient and insufficient, see Byles on Bills, p. 222. {z) Sect. 49 (3) and (4). NEGOTIABLE INSTKUMENTS. 187 September 3rd ; if lie hears nothing abont it by, say, September 12th, he would consider that the acceptor had taken up the bill, and might make arrangements disposing otherwise of the fund set apart to meet any liability on his indorsement. If now he is asked to pay, great hardship might be inflicted upon him, hence the necessity of notice of dishonour. But in the following cases either this would not apply, or else a greater hardship would be inflicted on the holder by requiting hun to give notice. The statute therefore enacts that it need not be given {a) : — (a) Wliere the bill has been dishonoured by non- acceptance, so far as regards the rights of a subse- quent holder in due course ; (b) Where notice is given on non-acceptance, and no acceptance is eventually given ; (c) "Where reasonable diligence is used, but notice is impossible, or is delayed by circumstances beyond the control of the party on whom the duty devolved, provided that there is no negligence on his part ; (d) Wliere notice is waived by the party entitled to it; (e) As regards titc draicer when — (i) di-awer and drawee are one person ; (ii) where the di-awer is the person to whom the bill is presented for payment ; (iii) where the bill is an accommodation bill [h) ; (iv) where the di'awer has countermanded payment ; (v) where the drawer is a fictitious person, or a person ha^dng no capacity ; (a) Sects. 48 and 50. {b) This is one to which a party has put his name without con- sideration, and for the accommodation of another party ; the latter should find the funds for payment when the bill becomes due. 188 RULES RELATING TO PARTICULAR CONTRACTS. (f) As regards the indorse)' — (i) where the bill was made for his accommodation ; (ii) where the indorser is the person to whom the bill is presented for pay- ment ; (iii) where the drawer is a fictitious person or a person not having capacity to contract, to the knowledge of the indorser at the time of indorse- ment. In a recent celebrated case, the meaning of the word " fictitious " has been considered, and though the decision was upon a different section of the Act, the interpretation given would doubtless apply to the word as used in this section. The facts were these : C. Petridi & Co. was an actual firm carrying on business at Constantinople, and Vulcina, a foreign correspon- dent of Messrs. Vagliano of London, was in the habit of drawing bills on Messrs. Vagliano to the order of Petridi & Co. A clerk in the employment of Messrs. Vagliano forged bills, putting in himself the names of Petridi & Co. as payees, and Vulcina as drawer ; to these he procured genuine acceptances of his fii-ni ; he then forged the indorsement of Petridi & Co., making it an indorsement to a non- existing person, "Maratis," and then took the bills to the bank, and received pa^mient of them across the counter. On the discovery of the forgeries, the question arose, Who was to bear the loss ? and for the bank it was urged that the bills, being payable to the order of a fictitious person, were to be treated as payable to bearer (c) ; the case turned, therefore, to a large extent on the meaning of " fictitious " as the word is used in the Bills of Exchange Act, 1882. {c) Sect. 7 (S). NEGOTIABLE IXSTRUMEXTS. 180 The contention was that " fictitious " meant " ficti- tious with respect to the occasion," and that the mere placing of a name wliich was actually borne by somebody would not prevent that name from being, in this sense, fictitious. It was decided by Charles, J. (r/), and by the Court of Appeal, Esher, M. R., diss, (e), that Petridi & Co. were not fictitious. The decision seems to be, that when a definite name is fitted intentionally to a definite person, who is knoMTi to the forger to be existent, such name and person is deemed to be real, and not fictitious. Protest. — The drawer and indorsers of a foreign bill have the further right of requiring its protest in the event of non-acceptance or of non-pa}Tnent (_/'); but this may be unnecessary or may be excused under circumstances similar to those mentioned above in the case of notice of dishonour (g). The time and requisites of j)rotest are set out in the Act, sects. 51, 93, 94, and see Schedule I. Liability of the acceptor. — The drawee is not obliged to accept the bill, and in the event of refusal, is under no Hability on it {h). If he does accept, he engages to pay according to its tenour(/), and this whether or no he has received consideration. He may not deny to a holder in due course the existence or capacity of the drawer, nor of the payee, nor the genuineness of the drawer's signature, but he must not be taken to admit the genuineness of the indorsement. If he id) Vagliano v. The Bank of England, 22 Q. B. D. 103 (e) 23 Q. B. D. 243. (/) Sect. 51 (2). (g) Sect. 51 (9). {h) Sect. o3 (1). (i) Sect. 54 (1). 190 RULES KELATING TO PARTICULAR CONTRACTS. has made his acccptauee for honour " siq)ra protest," the liability is not absolute, but accrues only if the drawee does not pay, and then only when it has been duly presented for payment and dishonoured, and has been again protested, the protest on non- acceptance being- of itself insufficient (/), and of these facts he is entitled to notice (A-). The liability, when it attaches itself, is to the holder, and to all parties subsequent to him for whose lionom' the bill was accej)ted (/). LUOnlity of fhc diri/rer. — He must pay the bill if it is dishonoured by non-acceptance or non-payment on the part of the di-awee (m). "A bill drawn upon a thu-d party in discharge of a present debt, may in truth be regarded as an offer by the drawer that, if the payee will give time for payment, he will give an order on his debtor (the acceptor) to pay a given sum at a given time and place. The payee agrees to take this order, and to give the time required, with a pro- viso that if the acceptor do not accept and pay the bill, and he, the payee (or the holder of the bill), give notice to the drawer of that default, the drawer shall pay him the amount specified in the bill, with lawful interest" {a). He may not deny to a holder in due com-se the existence of the payee, nor his capacity to indorse (o). Liability of the indorse)'. — He engages to pay if the bill is presented according to its tenour, and to {j) Byles on Bills, p. 273. (/.) Sect. 66 (1). {l) Sect. 66 (2). (;«) Sect. 55. («) Broom's Common Law, p. 460. (o) Sect. 55 (1). NEGOTIABLE INSTRUMENTS. 191 compensate any subsequent indorser, provided lie has the requisite notice of dishonour (7;). He must be taken to admit the genuineness of the signatures of the di'awer and of the previous indorsers ; and he may not deny the vaHdity of his title at the time of indorsement (|j). As has been stated above, each indorser may be called on to jd^Jj ^7 way of indemnity, the •whole amount paid on the bill by a subsequent indorser, and the liabilities of indorsers inter se will ordinarily be determined according to this rule. But any special circumstances may be referred to, in order to ascertain the true relations of the parties. Thus, when A., B., and C, directors of a company, mutually agreed with each other to become sureties to a bank for a certain debt of the company, and in pursuance of that agreement indorsed three pro- missory notes of the company, it was decided that the fii'st of the three indorsers need not indemnify the others, but that each was liable in a proportionate amount {q). Extent of t he Liahiliti/ on a Dishonoured JB±Il. — This differs in the case of an inland and of a foreign bill. The measm^e of damages on an inland bill {r) is (i.) The amount of the bill ; added to (ii.) interest from the date of maturity, or if the bill is payable on demand, of presentment for payment ; added to (iii.) the expenses of noting, and sometimes also of protest. On a foreign bill the measure is the amount of the re-exchange (s) with interest till the (j») Sect. 55 (2). Iq) Macdonald v. Whitfeld, 8 App. Ca. 733, 744. {»■) Sect. 57 (1). (*) Byles on Bills, p. 448. 192 RLLES RELATING TO PARTICULAR CONTRACTS. time of payment (f), and there is no option to sue for interest as on an inland bill {ii) . Discharge of the Bill. The grounds of discharge are these : — payment by the acceptor (or sometimes by others (r)), waiver, cancellation, merger, alteration. Pai/nient. — In order to operate as a discharge, this must be made by the proper person and in due course. Payment by the acceptor will always operate as a discharge if made in due course (?r), i.e.y. to the holder in due course, at or after maturity ; pa;yTuent by the di-awer or indorser does not dis- charge the bill ; but an accommodation bill is dis- charged if paid by the party accommodated {x). Payment must be made to the party entitled, and it is on this account that the payee must be in the first instance a person determinable with reasonable certainty, though a bill may be made payable to the holder of an office for the time being (//), and it may be made payable to bearer. If a fictitious (s) or non- existent person is named as payee the bill may be treated as payable to bearer (r/). Prima facie the holder is entitled to j^ayment. "When a bill to order on demand, drawn on a banker, is presented for payment to that banker, he should pay the bill, and (0 Sect. 57 (2). [u) In re The Commercial Bank of South Australia, 36 Ch. T>. 522 ; In re Gillespie, Ex parte Robarts, 18 Q. B. D. 286. {v) See below. (M-) Sect. 59. {x) Sect. 59 (3). (V) Sect. 7. (i) See Tagliano Bros. v. The Bank of England, supra, (a) Sect. 7 (3). NEGOTIABLE INSTRUMENTS. 193 if the indorsement is forged or made without autho- rity, he is held harmless {b). The amount paid must be the correct amount, which, therefore, must be a sum certain ; but cer- tainty is not pi'evented by the following provisoes, viz. : — (i.) an agreement to pay with interest ; (ii.) an agreement to pay by instalments, though it be fur- ther agreed that on failure of one instalment all shall become due ; (iii.) an agreement to pay according to an indicated rate of exchange (c) . If the words and the figures disagree, the amount payable is that ex- pressed in words (c). The bill is payable at maturity. It is payable on demand, if it is so expressed, if no time for payment is named, or if it is stated to be payable at sight or on presentation (d) ; if it is payable after sight, or at any fixed period after any specified occurrence, the date is determined according to the tenour (e) . A bill on demand is payable on the day of demand, but in other cases the time of pajTiient is determined as follows : — the day of payment is included, and the day from which the time is to begin to run (/) is ex- cluded ; in addition to this, three days of grace are allowed (g), and on the last of these the bill must be paid. The whole day is available for payment, i.e., in general the whole of the business hoiu's of the. (6) Sect. 60. (c) Sect. 9. {d) Sect. 10. {e) Sect. 11. It must be observed, however, that a bill payable on a contingency is bad; and see sect. 12, as regards filling up the date when the instrument has been issued undated. (/) As to when this begins, see sect. 14 (3). {ff) Sect. 14. In this section will be found provisions for the case when the last day of grace falls on a Sunday or a Bank Holiday./-^' ^ -. , .", ' , ,^:<.:, ?)•-<■> S'-^- ^ M. O 194 RULES RELATING TO PARTICULAR CONTRACTS. day. Payment may be made before it is due, but it will not then operate as a discbarge, and will be no answer to a bolder in due course. When a bill is paid the bolder may be compelled to deliver it up to the party paying it (h) . Presentment for Pai/ment is a necessity (except in the below mentioned cases), and without it there is no right of proceeding against the parties to the bill, except that if the bill be accepted generally no presentment is required to render the acceptor liable (?"). The time of presentment is determined as follows : if the bill is payable on demand it must be made within a reasonable time in \-iew of the particular facts ; if payable otherwise, then it must be made on the day on wliich the bill falls due {j). The j)lace of presentment is determined by the terms of the acceptance. If accepted payable locally, presentment must be made at the place ; if the acceptor's address is on the bill, this will demonstrate the proper place ; otherwise it may be presented to the acceptor at his place of business, his last-known residence or place of business, or to liimself wiierever he may be found (./). For the rules determining those who may present or who may receive present- ment, see sect. 45 of the Act, sub-sects. 3, 6, and 7. Presentment will be dispensed with [k), (i) where after the exercise of reasonable diligence, it cannot be effected; (ii) where the drawee is a fictitious person {l)\ (iii) as regards the cbawer, where the {h) Sect. 52 (4). {k) Sect. 46. (i) Sect. 52 (1). {l) See above, p. 188. (V) Sect. 45. NEGOTIABLE INSTRUMENTS. 195 drawee or acceptor is not bound, as between himself and the di'awer, to accept or pay the bill, and the drawer has no reason to believe that the bill will be paid if presented (m) ; (iv) as regards an indorser, where the bill was accepted or made for the accom- modation of that indorser, and he has no reason to expect that the bill ^vill be paid if presented ; (v) if it is waived, expressly or by implication. The holder must, on presentment, exhibit the bill to the person from whom payment is demanded (w). Payment for Honour. — If a bill is not paid at matm-ity it becomes dishonoured by non-payment, and the holder immediately acquii-es his consequent rights against the parties. If it has been protested for non-payment, any j)erson may intervene and pay it; the intervention is then called "payment for honour," and the payer stej)s into the place of the holder, to the extent of his rights against the de- faulter and those who were liable to him. The " pay- ment for honoiu' su2)ra j)rotest " should be attested by a notarial act of honour, which may be appended to the protest (o) . The Amount Payahle is generally the amount due, but of course a partial acceptance makes the acceptor liable only to the amount for which he has accepted. Wlien the drawer pays off a certain part of the amount, is the acceptor freed 7J>-o tanto, or can he be sued for the whole, the holder being then Kable to the drawer for the excess recovered? The opinion considered the better is, that in an action by a holder {in) Crofton v. Crofton, 33 Ch. D. 612. (w) Sect. 52 (4). (o) Sect. 68. o2 196 RULES RELATING TO PARTICULAR CONTRACTS. against the acceptor, payment by the drawer of any part is no answer (jj), unless the bill is an accom- modation bill, drawn for the accommodation of the drawer (q). Waiver. — To constitute this a discharge of the bill, the instrument must be given up by the holder, or the party renouncing his right must do so in writing. If the bill is allowed to remain in circu- lation, renunciation is no defence as against a holder in due course who has received no notice (r) . Cancel/at ion (s). — This discharges the person whose name is cancelled, and also all indorsers who would have a right of recourse against him, but (1) the cancellation must have been intentional ; (2) it must have been made with the holder's consent; (3) it must have been made without mistake ; the burden of proof of showing the ab- sence of these conditions, is on the holder. If the bill as a whole is thus cancelled, all parties are discharged. Alteration (t). — Material alteration without the assent of all parties liable, voids the bill as against all but parties to, or who become indorsers subsequent to, the alteration. If, however, the alteration is not apparent, the holder in due coiu'se will not be affected. Material alterations are, inter alia, alteration of date, amount, time and place of payment, or the addition {p) Jones V. Broadhiirst, 9 C. B. 173 ; Kemp v. Balls, 10 Ex. 607 ; Byles on Bills, p. 298. ((/) Lazarus v. Coivie, 3 Q. B. 459 ; Cook v. Lester, 32 L. J. C. P. 121 ; Byles on Bills, p. 298. (r) Sect. 62. (s) Sect. 63. \t) Sect. 64. Pigofs case, 11 Rep. 26; Master v. Miller, 1 Sm. L. C. Sth ed. p. 857. NEGOTIABLE INSTRUMENTS. 197 of a particular place where the acceptance was general ; (the last mentioned alteration does not affect liability unless it be made without the consent of the acceptor) . In a recent case the erasure of a number on a bank note was held material, though the contract actually entered into between the parties might not have been affected thereby (») ; and in a later case it was decided that, though the rules as to alterations apply to pro- missory notes, they do not necessarily apply to Bank of England notes (r). In Garrard \. Leicis (ic), defen- dant signed an acceptance, the amount being left in blank, but the figm-es in the margin were 14/. Os. 6cL; the drawer filled up the bill for 164/. Os. 6d., and altered the figures to make them correspond, and it T\'as decided that the marginal figures, not being a material pai-t of the bill, the alteration was no defence to an action by a bond fide holder. In Engel v. Stourton {x), an accommodation bill (which is not considered as issued imtil it is in the hands of some- body who can treat it as a security) was altered materially after acceptance, but before issue, by the accommodated party, and it was decided that the bill was void as against the acceptor. The statute and these decisions are in accordance with the old law on the subject, as laid down in the case of Master v. Miller {//) ; in that case Ashurst, J., says, " I cannot see any reason why the principle on which a deed w^ould have been avoided should not (u) Siffeldv. The Bank of England, 9 Q. B. D. 555. (d) Leeds and County Bank T. Walker, 11 Q. B. D. 84. (U-) 10 Q. B. D. 30. [x) Not yet reported. iy) TJbi supra. 198 RULES RELATING TO PARTICULAR COXTRACTS. extend to the case of a bill of exchange. All written contracts, whether by deed or not, are intended to be standing evidence against the paiiies entering into them. There is no magic in parchment or in wax, and a bill of exchange, though not a deed, is evidence of a contract as much as a deed, and the principle to be extracted from the cases cited is that any altera- tion avoids the contract" (2). Merger. — Under some circumstances this T\dll de- stroy the bill, e. g., when the acceptor becomes holder of the bill in his own right, at or after maturity {n). Bilh in a Set (h). Bills are frequently drawn in a set, e.g., two, three, or more parts, and if they refer one to the other, the whole constitutes one bill. The drawee should accept one part only, and, if he accepts more than one, he will be liable on each part as though it were a separate bill, unless all get into the hands of one holder ; he should not pay unless the accepted part is produced to liim ; if he does so without pro- duction, and that part is eventually presented by a holder in due course, he must pay again. If a holder of a set indorses different parts to different persons, he is liable on each part for the full amount, and so will be all subsequent indorsers on the part they in- dorse. Subject to the above, pajTnent of one part discharges the set. (2) And see the judgment of Grose, J., and of Eyre, C. J., 2 H. Bl. 141. («) Sect. 61 ; and see sect. 37. {b) Sect. 71. ISEGOTIABLE INSTRUMENTS. 199 Foreign Bills. An inland bill is one which piu'ports on the face of it to be both drawn and payable within the British Isles, or to be drawn within them, upon some person resident therein. Any other bill is a foreign bill. Unless the contrary appear on the face of it, a bill may be treated by the holder as an inland bill (c) , The form of a foreign bill usually differs fi-om an inland bill, the former being cbawn, as a rule, in sets, and at one or more usances (/. c., the time for pay- ment allowed by custom as between the country of draft and the country of payment) , When a foreign bill is dishonom-ed, protest is a necessity ; in the case of an inland bill it is optional {d). It is a matter of some difficulty to decide what law governs a foreign bill, whether the law of the place of draft, or of the place of payment. The rules re- ' lating to this are to be found in sect. 72 of the Act ; their main result seems to be that the law of , the place where the act is to be done is to be the law governing the performance of that act, e. (/., a billj drawn in England, accepted in France, payable vd.\ Holland ; here English law governs the di'af t, French law the acceptance, Dutch law the payment {e) . Agreements intended to control the Instrun}e)it. It sometimes happens that agreements are made by the parties at the time of acceptance, indorsement, [c) Sect. 4. liuuqucttc v. Overman)!, L. E. 10 Q. E. 52.5. {d) Sect. 51. [e) See, as regards the law previous to the Act, the cases of JRothschild V. Currie, 1 Q. B. 43; Roxqicette v. Ovennann, L. R. 10 Q. B. 525 ; Trimhnj v. Vignicr, 1 Biug. N. C. 151 ; Lcbel v. Tucker. L. R. 3 Q. B. 77 ; Bradlaugh v. Dc liin, L. E,. 5 C. P. 473. And since the Act, In re Marseilies Extension Rail, and Land Co., 30 Ch. D. 598. 200 RULES RELATING TO PARTICULAR CONTRACTS. &c., and these, if in "writing, may have an effect, indeed, will have an effect as between the parties to them, and as regards those wlio take with notice (./'). . If the agreement is contemj)oraneous and oral, it 1 cannot be proved, for it would be an attempt to vary ■ a WTitten instnmient by oral testimony. E%ddence may be produced to show there was no consideration but not to alter the terms of the contract {(j) . A subsequent agreement may be made to vary the terms, and will bind all w4io have notice, but it is a fresh agreement, and, if in writing, must have a fresh stamp (h), e. g., a holder may agree to renew a bill. It sometimes happens that a special agreement is entered into between the drawer and acceptor, wliereby the fonuer imdei-takes to give certain secu- rities to the latter to compensate him in the event of his not being put in funds before the maturity of the bill. If these parties become insolvent, can the bill holder claim to come in under this arrangement, . and take the seciuities in payment of his bill ? If one of the parties remain solvent this is not a matter of importance, as the holder will get pajTuent from that one ; but if both di'awer and acceptor become insolvent, the case becomes important, and on ordi- nary principles the holder would seem to have no right to the specific seciu-ity. This, however, is not the law. The rule in Hx jyarte Warinrj (i) applies. This has been stated thus (/) : " Where, as between (/) McMamis v. Barl; L. R. 5 Ex. 65. ig) Foster v. Jolhj, 1 C. M. & R. 708. (h) Stone v. Metcalfe, 4 Camp. 217. (i) 19 Ves. 345. {j) By Mr. Eddis, quoted by Brett, M. R., va. Ex parte JDever, 14 Q. B. D. 611, 620. NEGOTIABLE INSTRUMENTS. 201 the drawer and the acceptor of a bill of exchange, a | security has, by virtue of a contract between them, been specifically appropriated to meet that bill at maturity, and has been lodged for that purpose by the drawer mth the acceptor ; then, if both drawer and acceptor become insolvent, and their estates are brought under a forced administration, the bill holder, though neither party nor privy to the con- tract, is entitled to have the specifically appropriated, security applied in or towards payment of the bill."^ And Cotton, L. J., said that a " general appropria- tion of securities to meet the bills drawn by A. upon B.," would entitle the holder to payment therefrom mthin the meaning of the rule {k). If the person to whom the securities are sent, uses them for his own piu'pose, and does not apply them to the bill, and the sender raises no objection, then the rule does not apply (/). The rule is of an unusual character, and its application gives rise to many difiiculties ; for a full consideration see Williams on Bankruptcy, p. 153 ; and Mr. Eddis' treatise {m). Cheques. The Bills of Exchange Act, 1882, deals with these, and in sect. 73 defines them as bills of ex- change drawn on a banker, payable on demand ; and it has been said that the definition of a bill of ex- change given in the Act includes a cheque («). (k) 14 Q. B. D. 623. (/) In re Gothenburg Commercial Co., 29 W. R. 358. \m) Also Ex parte Lever (No. 1), 13 Q. B. D. 766; Ex parte Neck, 13 Q. B. D. 740 ; Ex parte Lever (No. 2), 14 Q. B. D. 611 ; F/ielps 4- Co. V. Comher, 29 Ch. D. 8 13 ; Jirown v. Koitff/i, 29 Ch. D. 848. (w) Lord Blackburn in McLean v. T/ie Clydesdale Banking Co., 9 App. Ca. 95, 106. 202 RULES RELATING TO PARTICULAR CONTRACTS. Mention lias already been made of the history of cheques in the judgment in Goodicin v. Boharts cjuoted above (^;). It may he added, that on fiscal grounds, cheques "^vere at one time liable to penalties if not di'awu payable to bearer, or if issued at a place beyond fifteen miles of the place of business of the banker. These restrictions have now been abolished. There can be no doubt but that a cheque is a negoti- able instrument [q). Wlien a cheque is presented, the banker must pay it if he has fimds in liis hands belonging to the drawer (r) ; otherwise he becomes liable to an action either in contract or tort. But proper presentation must be made, and that witliin what, considering the facts of the jiarticulai' case, will be a reasonable ■ time (s). If o"vving to non-presentment 'W'ithin such time the drawer is damnified, e.g., by the insolvency of the banker, he is discharged to the amount of the damage suffered ; in such a case, the holder may, if he can, recover the amount from the banker {t). 'I A banker's authority to pay a customer' s cheq ue is revoked (a) by countermand of pajTuent {u) ; (b) by j notice of the customer's death (r) ; and (c) by notice 1, of committal of any act of bankruptcy {v). Crossed Cheques. — A cheque, across the face of which two parallel lines are di'awn (between which {p) Page 163. iq) Kecne v. Beard, 8 C. B. N. S. 372 ; McLean v. The Clydesdale BanUng Co., 9 App. Ca. 95, 106. (r) See dicta in Goodwin v. Boharts, itbi supra; Pott r. Clegg, 16 M. & W. 321. (s) Sect. 74 (2). tj) Sect. 74 (1) and (3). {u) Sect. 75. \v) Sect. 97. NEGOTIABLE INSTRUMENTS. 203 the words " and Company," or any abbreviation of them, may be placed) , is styled a crossed cheque. A cheque crossed generally contains the above only ; a cheque crossed specially contains on the crossing the name of a banker in addition, and then is said to be crossed to that banker (ic). This crossing (which is a material portion of the cheque (x) ) may be added by the drawer or the holder, and either may turn a general into a special crossing {//). A banker may convert an uncrossed cheque into a crossed one, or a general crossing to a special crossing to himseK (y) . He may re-cross a specially crossed cheque to another banker for the purposes of collection {y) ; in no other case may a | specially crossed cheque be crossed to more than one ' banker, and if it is so, the duty of the banker to [ whom it is presented for pajTuent, is to refuse it (;:) . When a cheque is crossed it must be paid through a banker, and if it is crossed specially, througli the banker w^hose name is on it. For safety's sake, the words " not negotiable " are often added, and this takes away the negotiable character, rendering a holder hable to have set against liim the equities available against his predecessor (a) . Frequently ^l!L_^ the cheque is further crossed " account of A. B.," in -;:^ which case it must be paid into that account at the ^^^^^ ' bank to which the special crossing refers. ^-^ -"■'-^ A banker who fails to pay the cheque according to the crossing is liable to the true owner for any loss he may sustain by such payment {b) ; but if he deals (w) Sect. 7G. (;) Sect. 79 (1). (x) Sect. 78. (a) Sect. 81. («/) Sect. 77. {b) Sect. 79. 204 RULES RELATING TO PARTICULAR CONTRACTS. with the cheque as crossed, and without mala fides or negligence, he is placed in the same position as if he had paid the true owner (c). If the crossing is ob- literated, or if the cheque appears not to be crossed, nor to have been added to, or altered otherwise than in accordance with tlie Act, then if the banker acts without negligence, and with bona fides, he is not damnified if he treats the cheque as uncrossed ((/). Forgeries. — This part of the subject affects bills and other instruments as well as cheques. The following remarks, unless expressly excepted, apply generally. A banker who pays a forged bill or cheque is bound to pay the amount again to his customer (e). " Where a signature on a bill is forged or placed thereon without the authority of the person whose signature it purjiorts to be, the forged or unauthorized signature is wholly inoperative "(/). So when the amount of an instrument is fraudulently altered, the banker who pays it can recover from his customer only the amount originally placed thereon {g). I Negligence on the part of the customer causing or giving facilities for the fraud, will excuse the banker, but the negligence must be gross; e.g., merely leaving the cheque book in an unlocked drawer will not 2)er se be sufficient {h). Payment on forged indorsetnent s stand on a some- (f) Sect. 80. {d) Sect. 79 (2). \e) Young v. Grote, 4 Bing. 253 ; Hall v. Fuller, 5 B. & C. 750 ; Marzetti v. Williams, 1 B. & Ad. 415. (/) Sect. 24. (g) Hall V. Fuller, supra. (h) Bank of Ireland v. The Trustees of Evans'' Charities, 5 H. L. C. 389, 410. NEGOTIABLE INSTRUMENTS. 205 what different footing. By the 16 & 17 Vict. c. 59, s. 19, which has not been repealed by the Act of 1882, it was enacted that any banker may pay a draft or order on him, for a sum of money payable to order on demand, which on presentation for payment, purports to be indorsed by the person to whom it has been drawn payable ; and it will not be necessary for him to show that the indorsement is not a forgery. Sect. 60 of the Act of 1882 contains a similar clause. In accordance with this, a banker who pays in ordi- nary course and with horn ^^s^cheqne, bill,._or l^iic ^^ othe r draft to order on dema n^ bearing a f orgsd ^^J'^^^^^^ indorsement, will not be held liable to his customer - for the amount. It must be noted that these sec- tions are for the protection of bankers alone (/). Post dating. — It has been doubted whether a post dated cheque can be sued upon at maturity or whe- ther it is void ah iititio. The law, as it stands at present, allows it to be put in suit, though probably the drawer is liable to a penalty {j). Generally. — Except as modified by the foregoing rules, the provisions relating to bills in the Bills of Exchange Act, 1882, relate to cheques (A-). Promissory Notes. A promissory note is defined by the Act to be (/) " an unconditional promise in writing, made by one person to another, signed by the maker, engaging to (i) Ogden v. Benas, L. E. 9 C. P. 513. [j] Gatty V. Fry, 2 Ex. D. 265 ; Hitchcock \. Edwards, April, 1889. {k) Sect. 73. [l) Sect. 83. 206 RULES RELATING TO PARTICULAR CONTRACTS. pay, on demand or at a fixed or determinable future time, a sum certain in money, to, or to the order of, a specified person or bearer." It must not be made to the maker's order, but if it is, it becomes a note when he has indorsed it. The instrument must bear a stamp {m). The usual form of a promissory note is as follows : — 50/. York, 5th August, 1886. [Three] months after date [or on demand] (stamp.) I promise to pay A. B. or order [or bearer] fifty pounds. A. F. G. Here A. F. G. is the maker, and A. B. the payee; when A. B. puts his name on the back, he becomes an indorser. The differences between a note and a bill are manifest ; a bill has thi'ee original parties, a note has but two ; and whereas the drawer of a bill is but liable in a secondary degree as sui'ety, the drawer of a note is the principal debtor. The contract of the maker is to pay according to its tenour, and he may not deny to a holder in due course the existence of the payee, and his then capacit}' to indorse {n). This liability may be joint, or joint and several, according to the number of makers — for any number may jointly make a note — and their liability depends upon the tenour of the note. Thus, "I promise to pay, &c.," signed by more than one person, is a joint and several promise ; "we jointly agree, &c.," is a joint promise (o). There is no liability till delivery of the note, for until then the instrument is incomplete {])). (m) Post, p. 377. (o) Sect. 85. («) Sect. bS. Ip) Sect. 84. NEGOTIABLE IXSTKUMEXTS. 207 Presentment for Payment. — This is necessary to render the indorser liable {q), and the formalities as to time and place should be observed. As to these, see ante, under Bills, and see sects. <^Q, 87. GeneralJij. — Subject to the necessary modifications, the provisions as to bills apply to notes, except as above, and in the following cases : — (1) presentment for acceptance ; (2) acceptance ; (3) acceptance supra protest ; (4) bills in a set ; (5) protest when a foreign note is dishonoured. These are not applicable to notes (r). In applying such provisions to notes, the maker of the note corresponds to the acceptor of a bill, and the first indorser of a note corresponds to the drawer of a bill accepted and payable to the drawer's order (.s) . Bank Notes. These are promissory notes issued by a banker, payable to bearer on demand. Its properties were considered in the leading case of Miller v. Race {t), where Lord Mansfield recognized them as negotiable instruments. " They are not goods, nor securities, nor documents for debts, nor are so esteemed ; but are treated as money, as cash, in the ordinary coui'se and transaction of business, by the general custom of mankind ; which gives them the credit and cm-rency of money, to all intents and purposes. They are as much money as guineas themselves are, or any other current coin that is used in common payments, as money or cash." (q) Sect. 87 (2). (s) Sect. 89 (2). (>•) Sect. 89 (3). {t) 1 Sm. L. C. 516. 208 RULES RELATING TO PARTICULAR CONTRACTS. In a more recent case, Denman, J., said that Bank of England notes differ from ordinary promissory notes in two important characteristics, viz. : they are always payable to bearer without indorsement, and they are legal tender for the amounts represented by them. He did not consider that the ordinary rules relating to bills, would of necessity relate to bank notes, though they do relate to promissory notes generally. In this particular case he decided that the alteration of the number on a bank note was an alteration sufficient to discharge the bank from liability on the note, though had the ordinary rule prevailed, no alteration affecting the contract having been made, the liability would have remained (//). So also, in Su/f'cld v. Bank of England (i), Jessel, M, E,,, said : "A Bank of England note is not an ordinary commercial contract to pay money. It is, in one sense, a promissory note in terms, but no one can describe it as simply a promissory note. It is part of the currency of the country. It has long been made so by Act of Parliament. It is a legal tender for any sum above 51., and it must be issued to any one who brings a certain quantity of bullion to the Bank, and demands it, as he has a right to do, for the purpose of using it as currency" (/). BiUs of Lading. The general rules as to these have been considered under Stoppage in Transitu, and will be again dealt with in the Chapter on Carriage, but their negotiable (70 Zc(ds Sank v. WaRer, II Q. B. D. 84, 90. [i) 9 Q. B. D. 555. {j) Page 563 ; and see remarks of Brett, L. J., at p, 567. NEGOTIABLE IXSTRVMENTS. 200 character needs noting in this phiee. It will he remembered, that the case of Lichbarroiv v. Masoi) [h) decided that the indorsee for value of a bill of lading had the property in the goods, even as against the unpaid vendor, but at common law the bills were not themselves negotiable ; the holder could sue for the goods, but in ^-irtue of a right of property, not of contract. By the Bills of Lading Act, 18-35, it is enacted, that every consignee of goods named in a bill of lading, and every indorsee to whom the pro- perty mentioned in the bill of lading passes by reason of the consignment or indorsement, shall have all such rights of suit, and be subject to such liabilities, as if the contract had been made with himself (/). Bonds payable to Bearer. These are sometimes negotiable, viz., if they pass from hand to hand and are considered negotiable by the custom of the market (see ante, judgment of Cockburn, C. J., in Goodichi v. Rohart.s [m) ; and see Georgier v. MieviUe {)i), Goodicin v. Hobarf.s (o), Easton v. The London Joint Stock Bank [p), WiJUamx v. TJie Colonial Bank {q), Bicker v. T//e London an(t County Banking Co. (r), The London and Count if Bank V. The London and Rivev Blate Bank (.s)). (/•) 1 Sm. L. C. 753. (/) 18 & 19 Vict. c. 111. s. 1. See Maude and Pollock ou Shipping, p. 344 ; and see Short v. Simpson, L. R. 1 C. P. 248. ()«) Ante, p. 163. [n) 3 B. & C. 45. (o) 1 App. Ca. 476. [p) 34 Ch. D. 95; 13 App. Ca. 333; suh nom. Lord Shrffichl v. The London Joint Stock Bank. {q) 36 Ch. D. 659 ; 38 Ch. D. 388. (/•) 18 Q. B. D. 515. (s) 20 Q. B. D. 232. M. P 210 RULES in:i-ATIN(i TO PARTICULAR CONTRACTS. Miscellaneous. Letters of credit and circular notes are sometimes classed amongst negotiable instruments ; for these see Byles on Bills, p. 108. For coupons, see Byles, p. 108, and E)ithorcn v. IIoi/Ic {y). It was recently argued that post ofhee orders in the hands of bankers, as between the Post Office bankers and parties pre- senting them through bankers, are negotiable instru- ments, but the attempt failed [z] . lY. Partnership. Partnership is a contract of great mercantile im- portance, and must, therefore, be dealt with here; but in addition it in many respects approaches to a status, and looked at from this point of view there is much connected with it which must be looked for in special works on the subject. The chief of these are Lord Justice Lindley's work, and Professor Pollock's Digest of the Law of Partnershij). Partnerships have been divided into ordinary and extraordinary [a), or to group them more fully {h) into: 1. Partnerships proper; 2. Partnerships go- verned by local custom, c.g.^ a cost book mining company ; 3. Partnerships privileged to sue and be sued in the partnership name ; 4. Corporations proper ; 5. Incorporated unregistered companies, in- (y) 13 C. B. 373; 21 L. J. C. P. 100. (z) Fine Art Society v. Tlic Union Bank of London, 17 Q. B. D. 705. {a) Pollock, p. 14. {b) Lindley, p. 4 ; and see the Introductory Chapter to the 4th. edition. PARTNERSHIP. 211 -corporated by Royal Charter, leaving members liable for all their debts in full ; 6. Registered companies, divided into unlimited and limited, the latter being limited either by shares or by guarantee. A Corporation (c) is a fictitious person created by special authority, (in England by the authority of the Cro^vTi,) and endowed with special capacity. It ma}^ consist of one person or of many, and in the former case is then known as a corporation sole ((/). As Coke says, "A corporation aggregate of many is invisible, immortal, and rests only in intendment and consideration of the law ; it lias no soul, neither is it subject to the imbecilities of the body." As regards its debts, there is no individual liability, and here will be found a main difference between it and the ordinary partnership. The rules of Roman law on this point are applicable to English law (e), " &i quid universitati dchdur singuli-s non dehcfur, nee quod debet universitas singuJi debent" (c), but on the other hand, " Si quid societati debetur singulis debcfur, d quod debit societas singuli debcntP Companies^ in some cases, are notliing but ordinary 3)artnerships with peculiar privileges, e.g., the right to sue in the partnership name ; sometimes they are special creations resembling somewhat to corpora- tions. They differ from the latter in the liability of members for the debts, a liability varying in extent in different companies. From the ordinary partnership they differ mainly in size, and in the absence amongst their members of that mutual trust (c) See ante, p. 34. {d) E.g., tlie vicar of a parish. {e) See Moyle's Justinian, p. 184 («). p2 212 RULES RELATI]SG TO PARTICULAR CONTRACTS. in and personal knowledge of each other, ■which char- acterizes the partnership proper. " The law of unin- corporated companies is comprised of little else than the law of partnership modified and adapted to the wants of a large and fluctuating hodj of mem- bers" (/). And much the same may be said of those which are incorporated. An outline of the history of these associations may he found in the opening chapters of Lindley on Partnership (g), and in Lindley on Companies, from which it will be seen that the law of companies and of partnership, though to a certain extent derived from the same soiurce, are now to be treated as distinct. Partnership is not the same as co-ownership ; the former may include the latter, but the converse will not apply. They may be thus separated : (a) Co- ownership is not necessarily the result of agreement, partnership is ; c. g., A. gives land to B. and C. in common ; B. and C. are not partners, but may become so by agreement among themselves. So the co-owners of a ship are not necessarily partners, and it needs an agreement, express or implied, to make tliem so (//). (b) Co-ownership does not, of neces- sity, involve an idea of profit ; partnership does. (c) A co-owner has a right of fi-ee disposition over his property without the consent of his co-owner ; a partner who desu^es to rejilace liimseK by another, must arrange with his co-partner, and replace the old by a new partnership. (/) Lindley, Introductory Chapter, 4tli edition. [g) 4 th edition. \h) It must be remembered that a person may be liable as a partner to the outside Avorld, though in reality he is none. PARTNERSHIP. 213 A quasi-partno'fiJup must also be distinguished from the real thing. A quasi-^oxinoi is one who, not being n partner in reality, is by law treated as such, to the ■extent of being saddled with the liabilities. He is sometimes termed " a partner as regards third par- ties," and he becomes so mainly on these grounds, either that he shares profits, or that he has held ]iimself out to the world as a partner (/). In the remaining portion of this chapter, it will be necessary to refer occasionally to (/^r^sZ-partnerships, but with this exception, all remarks refer to partner- ships proper. Definition of a Partnership proper. From the above, it will be seen what a partnership p)roper is not ; it is more difficult to give a definition of what it is. Many have been attempted, and some of these may be found in Lord Justice Lindley's book {j). Professor Pollock adopts the following: " Partnership is the relation which subsists between persons who have agreed to share the profits of a business carried on by all or any of them on behalf of all of them"(A-). This brings out the idea of agency and of combination for gain, wliich are of the essence of the contract, but it will hardly exclude many of the extraordinary partnerships, nor does its framer seem to wish that it should (/). Lindley, L. J., seems to prefer the following, though he recognizes its faidts : "A voluntary unincorporated dissociation of indi^iduals standing to one another (i) See later, p. 218. (./) Partnership, p. 2. [k) Digest of the Law of Partnership, art. 1. (/) Ibid. p. 4. 214 RULES KELATIXG TO PARTICULAR CONTRACTS. in the relation of principals for canyiug out a joint operation or undertaking for the purpose of a joint profit" {m). As regards the various definitions, the language of Jessel, M. R., may be quoted. "No two of them exactly agree, but there is considerable agreement amongst them ; and I suppose that anybody reading the fifteen (;/), may get a general notion of what partnership means." He then says that the contract undoubtedly involves mutual consent, that it is un- doubtedly a contract for canying on commercial business, and tliat, as a ride, each party gives a contribution either of skill or of money, though this- is not always so; c.ff., in the case of a widow taken into a partnership in the place of her deceased Imsband (o). Finally, on this head we again may (juoto Lindley. " An agreement that something shall be attempted with a view to gain, and that the gain shall be shared by parties to the agreement, is the grand characteristic of every partnership " (jj). Forms of Partnership. These are, according to Story ((/), (1) universal ^ (2) general; (3) special. A universal partnership is extremely rare, involving, as it does, a complete community of interest in everj-thing concerning property. It is, in fact, communism and socialism in a strong form (r). Special partnership is an as- (m) Dixon, Partnership, p. 1 ; and Lindley, p. 2. (?() The number of definitions given by Lord Justice Lindley. (o) Fooki/ V. Driver, 5 Ch. D. 471. 472. (p) Introductorj' Chapter, 4th edition. (/?) Partnership, § 104. (»•) Story, cap. vi. PARTNERSHIP. 215 sociation for the purpose of obtaining a specific object, and is very difRcnlt to distinguish from joint adventure. All other forms would fall under the head of general ^partnerships. The corresponding divisions of the French Code may be mentioned. These are (1) " Societe en nom collective," corresponding nearly to the general part- nership of Story; (2) "Societe anonyme," analogous to oiu: joint stock companies ; (o) " Societe en com- mandite," or partnership with limited liability, a form unknown in English law, though a very similar association is possible under the Companies Act, 1867 (.s). Formation of the Contract. The contract is of a consensual nature, i. c, is formed by consent alone, and no formality of an}' kind is required. The general practice, however, is to have a written agreement containing the terms on which the partners are to carry on theu' business, and this document is styled the Articles of Partncr- sltip. A list of the more usual clauses is given, and they are set out more or less fulh* in Lindley (/). Who may be Partners. Aliens belonging to an enemy nation may not be partners of an Englishman, and a partnership between such parties is dissolved when war breaks (s) A company may be formed ■whose members are liable to contribute to the debts only to a limited extent, but whose directors incur unlimited liability: Act of 1867, s. 4. It is believed that three such companies have existed since the passage of the Act. (0 Pages 406 et seq. 21G 111 I.ES RELATING TO PARTICTl.AR CONTRACTS. out [h). Infants may become partners, but may renounce on attaining majority ; the contract, how- ever, is peculiar, as it would, imlike most infants' contracts since the Infants' Eelief Act, seem to be voidable, not void. Lunacy of a partner will not ipso facto dissolve an already existent partnershi}), but it will be a groimd on which the Court may decree dissolution. With these exceptions, the gene- ral rules of contract relating to the capacity of parties will apply to the present subject. The number of partners in any one concern is limited by statute. In a banking concern this limit is fixed at ten, in other cases at twenty (r). New partners may bo admitted, provided these immbers are not exceeded, but, of course, the consent of all the original partners must fii'st have been ob- tained, either in the original articles or by subsequent agreement. Perhaps it is better to look upon this arrangement as a tacit dissolution of the old, and tlie formation of a now, association. Rights and Duties. 1. Liabilities. Before Dissolution. — Every partner is liable for the debts incurred by or on behalf of the finn in the ordinaiy course of business ; in fact, to this extent, each partner is an agent of and for the others (?f). The liability follows the partner, even when he re- tu'es, so far as relates to the liabilities incurred whilst (m) GrisicoMr. Wacldington , 16 Johns. 438 (U.S.) \v) Companies Act, 1862, s. 4. (if) Fox V. Clifton, 6 Bing. 776. PARTNERSHIP. 217 lie was a member (x) ; and if lie dies, Lis estate is liable for these, subject always to the right of his separate creditors. It must be observed, however, that a partnership debt is joint and not several, hence, though the creditor may execute either against the individual property or the firm property, a judg- ment against a firm is a bar to an action for the same, or substantially the same, cause of action (y). This does not apply as to the estate of a deceased] partner (z). When a partner retires, the other partners may agree to hold him free of all liabilities already incm-red, and this, if assented to by the creditors, will give him a complete release ; if the creditors are not parties to this agreement, neither expressly nor by implication, he is still, so far as they are con- cerned, a debtor, but he may have rights of indem- nity against his late partners. Thus, A. and B. are bankers. C. and D. are admitted as partners, and notice of this reaches the customers ; soon after, A. mid B. die, but C. and D. carry on the business under the old name, and depositors leave tlieii" money with C and D., receiving interest from the bank after the ■death of the old partners ; the bank fails, and the depositors prove against C. and D. ; this conduct as a Avhole amounts to a tacit acknowledgment of the release of A. and B., and of the substitution of C. and D. as debtors (a). A dormant partner, i.e., one who (x) Bevaijnes v. Xohlc, 1 Mer. 539, 569. (y) Kendall v. Hamilton, 4 App. Ca. 504 ; Camhefort ^ Co. v. Chapman, 19 Q. B. D. 229; and see Badeley v. The Consolidated Bank, 34 Ch. D. 536 ; and remarks in Lindley's addenda. {£) See judgment in Kendall v. Hamilton, ubi supra. (a) Bilborough v. Holmes, 5 Ch. D. 255 ; and see Clayton s case, 1 Mer. 579 ; Pollock, chap. 4. 218 KULES KELATlKCi TO PARTICI'LAR CONTRACTS. was not known bj the creditors to be a partner, is liable only for debts incurred whilst he was actually a member. Conversely, a new partner is not liable for debts- incurred before he entered tlie firm, but by special agreement lie may be made so ; this agreement can be enforced by any of the parties to it, but not by any creditors merely as such. Thus, if on June 1st A. & Co. owe B. 500/., and on June 2nd C. joins A. & Co., agreeing to give a premium and to be answerable proportionately to his interest for the 500/., B. cannot sue C. unless he (B.) is a party to the contract, and gives consideration ; e.g., agrees, if C. makes himself partly responsible, to give time to the firm (/») . Who ar e liable ? — Strictly speaking, the partners alone are liable, but there are classes of persons who,, although not partners, are treated by law as such ; are^ in fact, estopped by their conduct from denying themselves to be members of the debtor firm. Wliether a given person is or is not a real partner depends uj)on the facts of the ease and the intention of^ tlie parties (e) . At one time it seemed that receipt of part of the profits of itseK was conclusive proof of jiartnership {d), but this is no longer so {e). In Cox V. Hickman {/) , the facts were these : — A trader [h) See Rolfe v. Flower (for a case where such an an-angemcnt was implied), L. R. 1 P. C. 27. (c) MoUwo i- Co. V. Cotirt of Wards, L. R. 4 P. C. 419. \d) Grace v. Smith, 2 Wm. B. 998; Waugh v. Carver, 2 H. BL 235. {e) See remarks of Cotton, L. J., in Ex parte Tennant, 6 Cli. D. 303, 315. (/) 8 H. L. C. 268. PARTNERSHIP. 219 owed money to many creditors, and these entered into an arrangement witli him, whereby he agreed to carry on the business under their superintendence, and gradually to pay off their debts out of a share of the profits. The case was earned up to the House of Lords, where it was decided — somewhat against what then seemed the current of authority — that such an arrangement did not constitute a partnership per se, and the test laid do^\Ti was : did the debtor carry on the business for and on behalf of the creditors so as to constitute the relation of agent and principal / between them ? {g) . This decision leaves the point, paiinership or no partnership, a question of fact; but the law was further simplified by BovilVs Ac t (h), which enacts : " (1.) The advance of mouey'1)y way of loan to a person engaged, or about to engage, in any trade or undertaking upon a contract in writing with such person, that the lender shall receive a rate of interest varying with the profits, or shall receive a share of the profits arising from caiTying on such trade or undertaking, shall not, of itself, constitute the lender a partner with the person or persons carrying on such trade or undertaking, or render him responsible as such" (/). " (2.) No contract for the remuneration of a servant or agent of any person engaged in any trade or imdertaking by a share of the profits of such trade or undertaking, shall, of itself, render such servant or (ff) See Lord "Wensleydale's remarks, p. 312. (A) 28 & 29 Vict. c. 86. (i) Sect. 1. 220 KULES KE1,ATIX(; TO PARTICULAll CONTRACTS. agent responsible as a paiiner therein, nor give him tlie rights of a partner" (/). '' (3.) No jierson being the widow or cliild of the deceased partner of a trader, and receiving by way of annmty a portion of the profits made by such trader in ]iis business, shall, by reason only of such receipt, be deemed to be a partner of, or to be subject to any liabilities incurred by, such trader " {k). "■ (4.) No person receiving by way of annuity or otlierwise a portion of the profits of any business in consideration of the sale by him of the goodwill of such business, shall, by reason only of such receipt, be deemed to be a partner of, or be subject to the habilities of, the person carrying on such busi- ness" (/). " (5.) In the event of any such trader as aforesaid being adjudged a bankrupt, or taking the benefit of any Act for the relief of insolvent debtors, or entering into an arrangement to pay his creditors less than twenty shillings in the pound, or dying in insolvent circumstances, the lender of any such loan as afore- said shall not be entitled to recover any portion of his principal, or of the profits or interests payable in respect of such loan, nor shall any such vendor of a goodwill as aforesaid be entitled to recover any such jn'ofits as aforesaid until the claims of the other creditors of the said trader for valuable consideration in money or money's worth have been satisfied " (w). The Act will be found, as is stated by Mr. Pol- lock {ii). to take the law not any fm-ther than it was U) Sect. 2. {m) Sect. 5. (A-) Sect. 3. («) Page 12. (0 Sect. 4. PARTNERSHIP. 221 shown to be in Cox v. Hickman. Each ease still depends upon the facts, the only new enactment heing sect. 5, which postpones certain classes of creditors to others in certain eventualities. A recent case will illustrate this : A. agreed in writing with B. to lend money with interest at 5 per cent., and he was to have a bonus of half of three years profits of the business in which the money was to be employed ; he had fm^ther the option of being admitted a partner. The agreement was cancelled, and a fresh one was entered into, in accordance with which he was to receive a share of the profits ; Kay, J., held that he was not a partner, but that under sect. 5 of Bo\dirs Act, he must, upon B.'s insolvency, be postponed to other creditors (o). Those who, not being partners, are treated as such, have, as was said above, been styled <7^^/'rs/-partners, and they become such in virtue of the rule which decides that *' where a man holds himself out as a partner, or allows others to do it, he is then properly estopped from denying the character he has assumed, and upon the faith of which creditors may be pre- simied to have acted. A man so acting may be rightly held liable as a partner b}' estoppel "(7;). It does not matter in such a case whether the person S( > " holding out " shares profits, or whether the creditor does or does not know him to be a partner ; he allows credit to be given on his good faith, and he is an- swerable if loss is incurred. An example of this is (0) In re Stone, 33 Ch. D. 541 ; and see also Si/ersy. Si/ers, 1 App. Cas. 174 ; Foolei/ v. Driver, 5 Ch. D. 458 ; Badeley v. 'I'he Consoli- dated Bank, 38 Ch. D. 238. [p) Molhco 6; Co. V. The Court of Wards, nhi supra. 222 RULES RELATING TO PARTICULAR CONTRACTS. the case of Marti/ii v, Grai/ (q), where A. introduced B. to C. as the moneyed partner ; B. was not a part- ner, but he stood by, and did not deny the statement, and he was held answerable for a loss incurred. It is sometimes rather harsh, but as Eyre, C. J., said in W((U(jh V. Carver {r), it is necessary " upon principles of general policy, to prevent frauds to which creditors would be liable." But representations of this kind cannot be used against a man unless his conduct causes others to alter their condition on the faitli of them [s) . This principle extends to administrations in bank- ruptcy, but the executors of a deceased partner are not bound by the mere use of the old partnership name by the survivors {t). LiahiUty for Wro)t(jH. — This rests on a somewhat different footing, for only those who are actual members of the firm, are held liable to the conse- quences of these ; and it is not involved by mere holding out (»). Even true partners are not answer- able for all wrongs of then* fellows, but only (i) if the wrongful act is within the scope of the business and of the defaulter's authority ; or (ii) if the tort is misapplication of money, &e., and then the money, the subject of such misapplication, must have been received for or applied to the benefit of the firm ; or (iii) if the tort is breach of trust, and the partners, {q) 14 C. B. N. S. 824. (?) 2 H. BL 235. [s) Quarman v. Burnett, 6 M. & W. 508. {t) On the general subject, see Lindley, pp. 45, 46. («) There is a case to tlie contrary effect. But see Pollock, p. 29. PARTKERSHIP. 223 other than the defaulting trustee, have connived at it, or have been negHgent in not discovering and avoid- ing it («;). The liability — wliieli is joint and several — rests upon the fundamental principle, that within a certain limit dependent upon the nature of partnership "business, each member of the firm is agent for the rest (?(•). The cases decided on this point, are numerous and sometimes difficult to distinguisli ; some of the most important are collected by Mr. Pollock on pages oi — 56 of liis work. The folloT\ing are fair sjiecimens, and will, for present purposes, sufficiently illustrate the rules. Two solicitors are partners, and to one of them a client hands money to be invested on a specific security ; this partner makes away with the money, and the other is entirely ignorant of the transaction ; nevertheless he is liable, for it is within the ordinary scope of a solicitor's business to receive money to invest on specific securities (.r). Had the money been given to invest at discretion, the case would have been different, such investments not being a part of a solicitor's work (//) . One of the most recent cases on this part of tlie subject is CleafJter v. Ticisden [z). There trustees deposited bonds payable to bearer with P., a member of a fiim of solicitors ; the firm's letter-book and statements of account rendered by the firm to the trustees, con- {v) Lindley, pp. 149 et seq. [iv) Pollock, p. 56. \x) Blair V. Bromley, 2 Ph. 354. (y) Harmati v. Johnson, 22 L. J. Q. B. 297. (s) Cleather v. Twisdcn, 28 Ch. D. 340 ; and see Coomer v Bromley, 5 De G. & Sm. 532 ; and Lindley, p. 152. 224 RULES RELATING TO PARTICULAR CONTRACTS. tained references to tlie bonds ; P. misappropriated the securities, but the other members of the fu-m were not held liable to replace their value. Fry, L. J., said that it was clear that tho transaction, viz., the custody of bonds, was not within the ordinary scope of a solicitor's business, and that the securities were received by the individual, and not by the firm. If the defaulting partner liad ad\-ised that the bonds should be placed in tlie firm's custod}', then the partners would have been liable. After Disxohifion. — Contracts already entered into I j^nd all members of the firm^ and all who^wete members wlien the obligation was contraetedj^, and a creditor's right against tlie members of a firm cannot be affected by any change in its composition, of wliich he has not had due notice. So, when a member retires, he remains liable for all existent debts, and also for those contracted subsequent to his retirement, except in the following cases : (i) wlieu the creditor had due notice of the change. This should be given individually where the jiartners were in the habit of dealing with the creditor, a notice in the London Grazette being sufficient where the creditor was not an ordinarycustomer previous to the alteration in the con- stitution of the partnersliip ; but it is advisable in the case of local fii'ms to fm-ther give notice through the local papers ; (ii) where a retiring partner was dormant, the continued use of the partnership name does not make him liable for debts contracted after his retirement {a) ; (iii) the estate of a partner who dies or becomes bankrupt is responsible only for those debts incurred («) Carter y. Whalki/, 1 B. & Ad. 111. PARTNERSHIP. 225 previous to the death or bankruptcy (b) ; (iv) A guarantee given by a third person cannot be enforced after a change in the firm's constitution (c). In this statement of the law, frequent mention has been made of the expression "the firm," but in law a firm, as such, is scarcely recognized, in fact, until the present rules of procedure came into force, it is not too much to say that its existence was not known, and even now judgment signed against a firm may be satisfied by seizure of private property. The firm is simply a short name substituted for the names of the members composing the partnership ; it is a description and a description only (c/). But an action may now be started against the firm in its collective iiame(r'), and, in administrations of estates, the firm's estate and those of the individual partners are to a certain extent kept distinct. It is still a doubtful point whether a firm can be sued by some of its members, for the firm being but a conglomeration of them, an action by one against it would be but bringing an action against himself. An action for an account can generally be brought, and Lord Justice Lindley thinks that an action for a specific sum can be maintained in many cases (_/'). In mer- cantile circles a different idea prevails, the firm being looked at as an entity, and it is common to hear of a member being indebted to his firm in so much or vice versa. (b) Br ice's ca^e, 1 Mer. 622. (f) 19 & 20 Vict. c. 97, s. 4. The same applies to a guarantee given to a fimi ; see later, p. 299. {(l) See James, L. J., in Ejc imrte Corbctt, 14 Ch. D. 126. (e) E. S. C, Ord. IX. r. 6. (/) Partnership, pp. 560 et scq., where the whole subject is con- .sidered. M. Q 226 RULES RELATING TO PARTICULAR CONTRACTS. 2. Righh. When the parties enter into the contract of part- nership, their rights are defined by their agreement ; this is often in ^\Titing, and partnership being a con- tract in which good faith is a main feature, the terms in whicli it is expressed are liberally construed. To quote Lord Eldon in Crairsha// v. Collins (/'), "Part- nerships are regulated either by express contract or by the contract implied by law from the relations of the parties. The duties and obligations arising from that relation are regulated, so far as they are touched, by express contract ; if it does not reach all those duties and obligations, they are implied and enforced by law." So Lindley says (7), " Every power con- ferred by the articles on any individual partner, or on any number of partners, is deemed to be conferred with a view to the benefit of the whole concern, and an abuse of such power, by an exercise of it, war- ranted, perhaps, by the words conferring it, but not by the truth and hononr of the articles, will be not countenanced."' Of course, the contract being purely consensual, there can be no objection to an alteration of the terms by consent, express or implied (/t), but the consent must be unanimous. "When the partnership expires by efiluxion of time, and the partners continue to work together, there is an implied arrangement that all rights are to be the same as heretofore, t. e., at the time of conclusion of the original contract, and the same rule applies when surviving partners continue the business after (/) 2 Euss. 347. ((?) Partnership, p. 40S. (A) Evgland v. Curling, S Ecav. 123, 129. PAKTNERSHIP. 227 the death of a member of the old firm. Lord Watson said, " When the members of a mercantile firm con- tinue to trade as partners after the expiry of their original contract, without making any new agree- ment, that contract is held in law to be prolonged or renewed by tacit consent" (/). Of course, if the part- nership is for a fixed term, and is carried over, the new partnership will be at will only [j). Amongst the ordinary righ ts of a partnerj^as re- gards his co-partners (so far as they are unmodified by agreement), are : — 1. The right to take part in the business, and to have the assistance of his co-partners. No remune- ration can ordinarily be claimed, but additional ex- pense incurred owing to the fault of a co-partner in not performing his part of the labour, may be allowed (/.•). 2. To have the business carried on according to agreement. The nature and place thereof cannot be changed without the unanimous consent of all the partners ; in minor matters occurring in ordinary course, a majority will bind the others. 3. To have the composition of the firm left intact. " No person can be introduced as a partner without the consent of all those who, for the time being, are members of the firm" (/). Dut a partner may assign his share of profits, or may mortgage it ; this, how- ever, giving a right to the other partners to demand a dissolution. • (i) Xeihon v. Jlosscnd Tron Co., 11 App. Ca. 298, decided on the particiUar words of the articles. (J) Feathcrstonehauf/h Y. Fenicich, 17 Ves. 307. (k) See g'cuerally, Lindley, p. 380. {I) Lindley, j). 363. q2 228 RULES RELATING TO PARTICULAR CONTRACTS. Also, a partner, unless " at will," cannot retire from his contract without the consent of all ; if the partnership be "at will," the partners are entitled to notice of intended retirement. Such retirement must be ho)id fide ; e. g.,vcL a universal partnership, if one member hears of an accruing gain to himself, he would not be allowed to retire with a view to securing the whole. A partner cannot be expelled by a majority of all the others in the absence of express power in the agreement; and if such power exists, it must be used in a conscientious manner. 4. To have indemnity for necessary extraordinary outlays in or about the partnership business, whether it be for its preservation or otherwise : e. g., a part- nership is formed to work a mine, and the operations cannot be continued imtil a new shaft is sunk ; a partner who pays the cost required is entitled to indemnity {m). 5. To have the books kept at a place where they shall be accessible to him, and to be allowed to exa- mine and copy them whenever he may desire (n). 6. To be dealt with by his colleagues with the utmost good faith in all partnership matters. Every partner must account to the firm for any benefit he may derive which is obtained by him through a partnership transaction, e.g. A., B., C, and D. are partners in business as sugar refiners, A. being also in trade for himself as a sugar merchant, the other partners being cognisant, and not objecting ; A., (m) Ex parte Chippendale, 4 D. M. & G. 36. {») Linclley, pp. 404, 420. PARTNERSHIP. 229 "witlioiit the knowledge of the firm, sells sugar at a profit to it ; held : he must account for and share this profit with the partnership (o). So if one partner is in a separate business with consent of the others, — for without this consent he may not engage in any business of the same kind as that carried on by the firm (7;), — he may not compete with the firm, nor may he keep for himself any profits he may obtain by such competition. In short, partners must act for the common advantage of all in any matter which affects the affairs of the partnersliip, and may hide nothing from each other which may be material (q). After Dissolution. — When the partnership is jjut an end to, new rights accrue to its members between each other : — 1. A public notification of the dissolution may be demanded by any partner, and as the practice of the gazette is to require the signature of all the partners, any one may take action to compel a recalcitrant member to sign {>•). 2. Each partner has an equitable lien on the pro- perty owned by the fii-m at the date of dissolution, entitling him to have it applied in payment of the fii'm's debts, and then in payment of what may be due to the partners on the joint account is). And if a partner has been induced to enter the partnership by fraud, and has, on that ground, {0) Bentleyv. Craven, IS Beav. 75; and see Featherstonehanjh \. Fenivick, ubi supra. (p) See Dean v. McT)ou:ell, 8 Ch. D. 345. [q) On this part of the subject, see the rules and illustrations in Pollock, pp. 80 — 84 ; and note that this is but the application to partnership of the rules of ordinary agency : cf. ante, p. 131. (/•) Eendrij v. Turner, 32 Ch. D. 355. (a) Darby v. Darby, 3 Drew. 495 ; Lindley, p. 402. 230 UULES KKLATING TO rAKTICUI.AR CONTRACTS. obtained a dissolution, lio may insist upon being repaid the amount given by him for his interest, and he must be paid immediately after the outside creditors, otherwise the property of the firm is dis- tributed in order as follows (?'): — (1) In paying lia- bilities of the firm to outside creditors ; (2) in paying partners rateably what is due from the firm to them for advances («) made by them to the fii-m ; (3) in paying each partner rateably what is due from the firm to him for capital subscribed ; (4) in distributing profits according to the agreed upon amount ; if no amount has been agreed upon, then equally between all the partners. Losses must be paid first out of profits ; if there are no profits, out of capital ; if this is exhausted, then individually by the partners, in the same proportions as the profits would have been divided had any existed. 3. Any partner ma}^ on dissolution, require that the property, including the goodwill, should be sold, and he may restrain any other partner doing anything tending directly to decrease the value, e.g., using the firm's name {ini), when an attempt is being made to sell the goodwill. And the goodwill may be sold when the partner dies, for the right to it does not vest in the survivors (r). 4. "WTien one partner on entering the firm pays a premium, then in the event of a dissolution, he may obtain a return of a certain amoimt of this, but not when dissolution is caused by the death of a partner, ((■) Lindley, p. 402 ; Pollock, p. 123; B'nuicy v. Miitrie, 12 App. Ca. 160. {h) Advances must be kept distinct from capital. (itit) See below, p. 240. (r) Smith v. Everett, 27 Beav. 446. PAKTNERSHIP. 231 nor when tlie partner demanding tlie repayment lias caused the dissolution by his ovm misconduct. The entire question is in each case in the discretion of the Court, and an order will be made, such as imder the cii'cumstances will work justice. In Aticood v. Maude (h-), one partner took another into business with him, asking a premium as compensation for in- experience. Within two years the original partner sued the new comer for a dissolution, grounding his case on the latter's incompetence, and the Court awarded dissolution and a return to the latter of such part of the premium as bore the same proportion to the total amount as the two years did to the total term agreed upon. From the judgment it appears that the Cornet will ordinarily order the , return of the premium, having regard to the terms of the con- tract, the position of the parties, and their conduct, and that the amount will be calculated on a propor- tion similar to that taken in the present case. 5. When a member of a firm retires, he is entitled to an immediate settlement, and to a retm-n of money subscribed by him. If the continuing or surviving partners trade with this money, the ex-partner is entitled to a proportionate share of the profits, or to a return of his capital with interest at the rate of five per cent.(.r). For a case where the retiring partner contributed skill but not capital, see Willett v. Blan- ford [ij] ; it is probable that if the skill has borne fruit, he will be entitled to a share of the profits. H 3 Ch. 369. \x) Lindley, p. 521 ; Craushaij v. Collins, 2 Euss. 347. (y) 1 Hare, 271. 232 RULES RELATING TO TARTICULAR CONTRACTS. Authority of a Partner (z). It seems quite settled by judicial decision, that all partners are bound by the acts or admissions of one, if done within the scojie — apparent or real — of the business. Thus, Story says, " a partner, indeed, virtually embraces the character both of a prin- ci\rd\ and agent " (a). And in BamV^i caH('{h), James, L. J., said, " as between the partners and the outside world (whatever may be their jirivate relations between themselves), each partner is the unlimited agent of every other in every matter connected with the partnership business, or which he represents as partnership business, and not being in its natiu'o beyond the scope of the partnership." I But a partner is an agent only so far as be__is acting upon, and within the scope Qf,_thejfirm's.ordi- i nary affairs ; that the act is useful to the firm is not sufficient, neither invariably is its necessity ; the act done must be a fm'therance of the ordinary business of the firm (c) ; and even then, the firm will not always be bound, for if a partner attempts to make the firm liable, though within his apparent authority, the finn will not be bound, if in fact he has no authority ; and if this was known to the other contract- ing party, or b}' the exercise of reasonable diligence coidd have been known : cf/., a partner gives a part- nership secmity in discharge of a private debt; the recipient must show that he took it without know- (;) See Lindley, pp. 124 et scq.; Story, Agency, § 124 ; Bank of Australasia v. Breillat, 6 Moo. P. C. 193. {a) Partnership, Authority of a Partner. {b) L. R. 5 Ch. 733. ((•) Holme V. Hammo)id, L. R. " Ex. 218. PARTNERSHIP. 23'3 ledge, and without such negligence as would amount to knowledge (d) ; and Cockburn, C. J., thought that in a case like this, the recipient would always deal with the partner at his peril {c). Mr. Pollock (/ ) deals with certain of the more ordinary transactions, thus : — Every partner may bi nd his fir m by any qf_the following acts : — (a) He may sell any goods or personal chattels of the firm ; [Legal estate in land must be conveyed l)y all the partners, or by one authorized l)y deed.'] (b) He may purchase on account of the firm any goods of a kind necessary for or usually em- ployed in the business carried on by it ; (c) He may receive payment of debts due to the firm, and give receipts and releases for them (g) ; (d) He may engage servants for the partnership business. If the partnership is in trade, every partner may also bind the firm by any of the following acts : — (e) He may make, accept, and issue bills and other negotiable instrmnents in the name of the firm (h) ; [A member of a partnership not in trade, (d) Smith's Mercantile Law, p. 43 (Otli ed.) ; Garland y. Jacomb, L. R. 8 Ex. 216. (e) Kendal w. Wood, L. R. 6 Ex. 243. (/) Page 38. Q) Stead V. Salt, 3 Bing. 103. (A) Lindley, p. 129. When a partner's individual name coin- cides with the firm's name, see Yorkshire Banking Co. v. Beatson, 5 C. P. D. 109. 234 RTXES RELATING TO PARTICULAR CONTRACTS. may bind a firm by negotiable contracts, but only in those cases where it is shown to be a matter of necessity and witliin the usual course, the bm'deu of showing this being on the person attempting to make the firm liable.] (f) He may borrow money on the credit of the firm ; (g) He may, for that i)urpose, pledge any goods or personal chattels belonging to the firm. [And he may probably give an equitable security over the real estate ; but he cannot give a legal mortgage.] In all cases the authority continues, even after dissolution so far as is necessary to properly wind up the business. Property of the Firm. Dming the continuance of the firm, the members are joint-owners of the property ; i.e., each owns the whole, and the property is not divided up into portions which belong separately to the members. In ordi- nary cases of joint- ownership, when one joint-owner dies, his co-owners succeed to his share, but in the joint-ownership caused by partnership this is not so, and the representative of the deceased succeeds to his rights. It should be observed that partnership pro- perty, whatever be its nature, is looked upon as personalty, and therefore, on death, the personal representative is the one entitled ; but this may be modified by agreement {(). A partner's share is " his proportion of the partner- (i) Lindley, pp. 343, 346. PARTNERSHIP. 235 sliip assets after they have all been realized and con- verted into money, and all the debts and liabilities have been paid and discharged" (/). In the absence of any special agreement, the part- ners are entitled to share equally in the profits, and must bear the losses equally. After the debts have been paid, and after advances by partners have been returned, and proper indemnities given, the re- mainder is shared either equally between them, or if there is an agreement, according to the terms thereof. Dissolution. The rights and duties consequent upon dissolution have already been considered ; it now remains to show how, when, and on what grounds it is brought about. It may be caused in any of the following ways : — 1. At the will of a partner, if the partnership is at will (/.•) ; 2. By efiluxion of the time agreed upon as the term ; 3. Impossibility of going on, because of, — (a) Hopeless state of the business ; (b) Insanity of a partner ; (c) Misconduct ; (d) Destruction of mutual confidence (/). 4. Transfer of a partner's interest — (a) By act of law, e.g., death, banki-uptcy {m) ; ij) Lindley, p. 339 ; Pollock, p. 68. (/i) Craicshaij v. Ma/t/c, 1 Swanst. 495, 508. (/) See Ativuod v. Maude, 3 Ch. 369 ; and see Pollock, p. 91. [m) Where the interest of one member of the firm is seized under an execution, see Helmore v. Smith, 35 Ch. D. 436. The partner- ship is not ipso facto dissolved, but there is good cause for a dissolution. 236 RULES RELATING TO TARTICULAR CONTRACTS. (b) By act of party, e.g., if A. transfers his share to B., the partnership is dissolved, or if it was originally a fixed term partnership, the Court will dissolve it on the petition of the other partners. 5. Occurrence of an event making the partnership illegal ; o./). Administration of Partnership Estate. So far as this is specially effected in bankruptcy, see later, p. 369 ; but in general the rules are similar, whether the estate is being administered in bank- («) Lindley, p. 5S0 ; and see Harrison v. Tennant, 21 Beav. 4S2. PARTNERSHIP. 237 niptcy or in the Chancery Division. Partnership property is applied in payment of the debts of the partnership, and the separate property of the indi- vidual partners in payment of their individual debts ; if in either case any surplus remains, this is carried over to pay the deficit in the other class. Thus, A. and B. are partners ; A. owes his separate creditors 100/., and his separate estate is 75/. B. owes 150/., and has 175/. ; the firm's debts are 500/., and assets 450/. The private creditors of A. take the 75/., those of B. take 150/. of the 175/., the joint creditors taking the remaining 25/. Supposing A. and B. are partners, and A. is insolvent, B. being solvent, the joint creditors will recover the full amount from B., B. being then allowed to prove against A.'s estate to the amount which he has paid beyond Ms portion. And see Ridgivny v. Clare (o) and the examples collected in Pollock on Partnership, Chapter XL The rule, which is much criticised, is firmly estab- lished. Thus, in Ex parte Morley {p), James, L. J., says "if there be two estates, a joint estate and a separate estate, the Coiui takes care that the joint assets are applied in payment of the debts of the joint creditors, before any part of them goes to the separate creditors " ; and in Lace// v. Sill (q) he says, " as a general rule a separate estate cannot prove against a joint estate, and a joint estate cannot prove against a separate estate, till the creditors of the respective estates sought to be proved against are satisfied." So, in Rolfe and The Bank of Amtralasia V. Floicer ^' Co. (r), Lord Chelmsford, in delivering (o) 19 Beav. 116. {q) 8 Ch. 441, 444. {p) 8 Ch. 1026, 1032. (r) L. R. 1 P. C. 27, 48. 238 RULES RELATING TO PARTICULAR CONTRACTS. the judgment of the Privy Council, said : " Upon a joint bankruptcy or insolvency the joint estate is the fund primarily liable, and that the separate estate is only brought in, in case of a surplus remaining after the separate creditors have been satisfied out of it." And see the Bankruptcy Act, 1883, s. 40. But the law here, as elsewhere, recognizes excep- tions when there has been fraud. Thus, when a partner has fraudulently, and without the consent of the others, converted partnership property to his 0"wn use, the creditors of the joint estate may prove against that partner's separate estate, and even though it is not sho^\Ti that the sei)arate estate has benefited by the conversion (s) . As regards the fraudulent conversion "it is not necessary for the joint estate to prove more than .... that this over- drawing was for private purposes, and without the knowledge, consent, privity, or subsequent approba- tion of the other partners. If that is shown, it is prima facie a fraudulent appropriation within the rule"(^). And such consent or knowledge must have been real, not constructive, for it is the better opinion that the doctrine of constructive notice is not applicable here {u). On similar principles it has been decided that a creditor of the firm who has been persuaded to trust it by the perpetration of a fraud by the partners, may prove his debt against the estate of the fraudu- lent partner (r) . («) See Bead v. JBaileij, 3 App. Ca. 94. {t) Jessel, M. E., in Lacey v. Hill, 4 Ch. D. 543. {u) See Lacey v. Hill, uhi supra ; and Pollock, pp. 152, 153. (r) £x parte Adamsov, 8 Ch. D. 807 ; and possibly against the estate of an innocent partner : Ex parte Saltiug, 25 Ch. D. 148. PARTNERSHIP, 239 Partners may not compete in an administration with the firm's creditors, either as against the joint or against any of the separate estates, unless the sepa- rate property has been converted to the use of the firm, or flee versa, and unless this conversion has taken place fraudulently without authority. The remarks above made as to fraud and authority apply here. Goodwill. The law of goodwill is not of itself a portion of the law of partnershij), but the two are often dis- cussed together, inasmuch as questions concerning the former arise more constantly in actions in part- nership matters than in any other branch of law. Under these circumstances, it ^\dll be well to insert the few remarks to be made on this subject in this place. The term is one which is seldom misunderstood, but it is not easy to give a definition of it. Wood, Y.-C, in Clmrton v. Douglas («•), says : " Goodwill, I apprehend, must mean every advantage — every positive advantage, if I may so express it, as con- trasted with the negative ad^-antage of the late partner not carrying on the business himself — that has been acqiured by the old firm in carrying on its business, whether connected with the premises in which the business was carried on, or with the name of the late firm, or with any other matter carrjang with it the benefit of the business." And Lord Eldon has described it as, " nothing more than the probability that the old customers will resort to the (if) 1 John. 174. 240 RULES RELATING TO TARTICULAR CONTRACTS. old place " (^). And Mr. Pollock says (//) : " That wliieli the purcliaser of a goodwill actually acquires, as between himself and his vendors, is the right to carry on the same business under the old name and to represent himself to former customers as the successor to that business." Some businesses depend so entirely upon personal skill and influence, that no goodwill of it can exist, e.g., a solicitor's business (c). And in some forms of business, the goodwill is personal {a), e.g., made by the skill of the person ow^ning it ; whilst in others, the goodwill attaches itself rather to the property than to the owner's person, c. g., the good- will of a well-situated public house [h). The busi- ness, therefore, of a solicitor may be transferred, but not any goodwill. A personal goodwill is cap- able of transfer, and so is the other kind, and this latter attaches itself to the property, and goes with it, e. r/., to a mortgagee {c). The question wdiieh has given the greatest trouble to the Courts is to what extent is the assignee of the goodmll bound not to enter into competition with the old firm. In C hurt on v. Douglan [d), it was said that the vendor could carry on the same class of busi- ness, and with the same customers, provided that he did not represent to them that his was the old busi- ness, or that he had succeeded to that old business ; but (.r) CruttiveUy. Lye, 17 Yes. 346. {])) Partnership, p. 107. And see Lindley, p. 439. \~) Arundell v. Bdl, 31 W. R. 477. But Baggallaj, L. J., thought that something might exist analogous to a goodwill. [a) Cooper v. The Metropolitan Board of Works, 25 Ch. D. 472. (b) Ex parte Pmnett, 16 Ch. D. 226. \c) Cooper V. Tkc Metropolitan Board of Works, 25 Ch. D. 472. {d) Ubi supra. INSURANCE. 241 in Labonchere v. Dawson (e), it was decided that neither soliciting nor dealing with the old customers was to be permitted. The modem nde, however, is not so rigid, and Leggott v. Barrett (/) decided that, though soliciting is not to he allowed, yet the old customers may be dealt with. The two recent decisions, Pearson v. Pearson {g), and Vernon v. Hallam (/?), go farther, and allow the vendor of the goodwill to set up a similar business, and to solicit the old customers. It had previously been held in Walker v. Mottram (/), that the stricter rules did not apply to an involuntary alienation. Mr. Pollock {j) thus sums up the present state of the law: — " (a) The purchaser alone may represent himself as continuing or succeeding to the business of the vendor. " (b) The vendor may nevertheless carry on a similar business in competition with the purchaser, but not under the name of the former firm. " (c) The vendor may publicly advertise his business, and solicit the customers of the former firm." V. Insurance. " Insurance is a contract either to indemnify against a loss which may arise upon the happening of some event, or to pay, on the happening of some event, a sum of money to the person insured " (A-) . The instrument {e) L. R. 13 Eq. 322. (/) 15 Ch. D. 306. {g) 27 Ch. D. 145. (/*) 34 Ch. D. 748. (0 19 Ch. D. 355. {j) Page 104. (^•) Williams' Personal Property, p. 294. M. R 242 RULES RELATINCi TO PARTICULAR CONTRACTS. contaming the contract to insure is called a imlicij of insurance, the person insured is called the assured or the insured, and the person who insures is called the insurer, assurer, or the underwriter, the latter term being used chiefly in the case of insm-ance of ships. There are many forms of this contract, for a man may agree to insure an}'thing, from a pane of glass to his own life ; but the three forms of greatest im- portance are Life Insurance, Fire Insurance, and Marine Insurance. These will be considered sepa- rately. In Carter v. Boehm (b). Lord Mansfield said, " In- surance is a contract on speculation," and this being the case, it is frequently hard to distinguish, as regards principle, a contract to insure and a contract amounting to an ordinary wager. In Godsall v. Boldero (r). Lord EUenborough said that insurance is a contract of indemnity, not of gaming, that is to say, that the agreement is not to give a sum on the happening of a certain event, but to compensate the insured for any damage suffered owing to its occur- rence. This, though true of marine and fire insur- ance, is not the case with life insurance {d). Another distinction suggested is, that in the case of a wager there is no interest in the result of the event entitling to compensation if it does not occur, whereas in all insurance contracts, such an interest must exist, i. e., there must be what is styled an insurable interest. \ The real distinction seems to be in the desire of the {b) 1 Sm. L. C. 550. {c) 2 Sm. L. C. 271. [d) Dalbrj v. The India and London Life Insurance Co., 15 C. B. 365. INSURANXE. 243 ■Courts and legislature to recognize a transaction entered into evidently with a fair commercial object, and to refuse recognition to such as are mere specu- lations. Insurance in any form is but a legalized gamble, but one to which there is no moral objection; on the contrary, it may receive high approval, and so is encouraged rather than forbidden. It must not, however, be made an excuse for gambling, and a wager, though in policy form, will be within the statutes in restraint of wagering. It has just been said that, in some of its forms, the •contract is one of indemnity, /. () ; a wife may insure her husband (r) ; and a man may insure himself (n-) ; but a father has not necessarily an insurable interest in the life of his son (zr). By the Married "Women's Property Act, 1882, sect. 11, it is provided that a married woman may effect a policy upon her own life, or upon the life of her husband, for her own separate use. If a man or a married woman effect a policy on his or her own life, or on each other's lives, and the policy is exj^ressed to be for the benefit of the other or for the benefit of the children, this shall create a trust, which so long as any object of the trust remains unperformed, shall not form part of the estate, nor be subject to the in- sured's debts, provided there be no proved intent to defraud creditors. For appointment of trustees, &c., see the section. Assignment of the Policy. — At one time the assignee could not sue in his own name, but since 1867 this («) Asldey v. Ashleif, 3 Sim. 149. {t) Godsall V. BoJdcro, 2 Sm. L. C. 271. (m) Tidsu-elly. Angerstc'ui, Peake, 151. (f) Meedx. The Royal Exchanye Aamrance Co., Pcake, Add. Ca. 70. {id) Halfurdx. Kymcr, 10 B. & C. 724 ; and see, generally, the cases cited in Koscoe, N. P. 382. 248 RULES RELATING TO PARTICULAR CONTRACTS. power has been given (x) ; but (i) the assignee is liable to be defeated by defences which would have been good against the assignor (y) ; (ii) he must give written notice to the insurance company, and, in the event of a second or further assignment, the priorities will depend upon the date of this notice ; and further any Ooiid Jide payment made by the com- pany previous to such notice will be valid in favour of the company {z). The company must specify on the policy the place of business at wliich such notices may be given, and upon receiving notice it must give a certificate to that effect. When a life policy is about to be effected, it is usual for the company to ask certain questions re- lative to the health and family history of the intended insured ; these nmst be answered carefully, and no concealment of facts will be allowed ; a declaration is often subscribed stating that the policy is made on the faith of this information, and then if this amounts to a Avan-auty, the pohcy will be void, though the information given be true to the knowledge of declarant {a). The duty of the insurer is to pay according to the tenour of the policy, and this must be performed according to the ordinary rules of law. It is usual to provide that death by suicide or by sentence of law shall operate to discharge the insurer's liability, but if not agreed upon expressly, it would be implied, in fact (j-) 30 & 31 Vict. c. 144. (y) Sect. 2. (;) Sect. 3. (a) See and of. Liickett v. WUUams, 2 C. & M. 348 ; Thomson v. Weems, 9 App. Ca. 671. INSUKANCE. 249 would probably be so decided though the parties had agreed otherwise. It would seem that the modem tendency is to construe clauses in limitation of the insurer's liability somewhat strictly in his favour. In Cole V. The Accident Lmtrauce Co. (h), the in- sm-ed held a policy including a clause excepting liability in the event of death from poison ; he took some by accident, mistaking it for medicine, and he •died ; /icM, that no liability attached to the company on the policy, and that the words " other than by misadventure" not being in the contract, could not be implied by the Court. In Cornish v. The Accident In- surance Co. (c), the policy exonerated the office, if death should be caused by exj)osure to obvious danger, and the insured's representatives were refused com- pensation for the death of the deceased, caused by his being run over by a passing train whilst crossing the line. Fire Insurance. Fire insurance is a contract, one party to which undertakes to indemnify the other against the conse- quence of a fire happening within an agreed upon period, in return for the payment of money in a lump sum or in instalments. The insured must have an insurable interest in the premises insured ; ■i.e., he must be in such a position that he incurs loss by the burning ; thus, a creditor may insure a house over which he has a mortgage {d) ; a warehouseman may insure his customer's goods {e). {b) 61 L. T. Rep. 227. \c) 23 Q. B. D. 453. {d) Westminster Fire Office v. The Glasgoiv Provident Investment Society, 13 App. Ca. 699. (e) Waters v. The Monarch Assurance Co., 25 L. J. Q. B. 102. 250 ri:les relating to particular contracts. The contract being one of indemnit}-, only the amount of loss actually suffered can be recovered; this 13owen, L. J., calls " the infallible rule " (/) . In a recent case, CastcUain v. Preston {g), a vendor agreed to sell premises to the vendee ; these were insured^ and before the sale was completed, they were burnt. The insurance company paid a sum to the vendor^ and lie sold the premises at the originally agreed upon price ; he therefore lost nothing by the fire, and the Court ordered him to refund the money to the company. In the course of the case, Bowen^ L. J., said : " What is really the insurable interest of the assured ? Their insurable interest is this — they had insured against fire, and they had then contracted with the purchasers for the sale of the- house, and, after the contract, but before completion, the fire occurred. Their interest, therefore, is that at law they are the legal owners, but their beneficial interest is that of vendors with a lien for the unpaid purchase-money. That was decided in the case of ColUiigridgc v. Roi/al Exchange Assurance Corpora- tion ill) ; but can they keep the whole, having lost only half? Surely it would be monstrous to say that they could keep the whole, having lost only half They would be getting a windfall by the fire, their contract of insurance would not be a contract against loss, it would be a speculation for gain. '^ By an Act of 14 Geo. III. c. 78, s. 83, it is pro- vided that any interested person may procure that the insurance money shall be laid out in rebuilding the premises, but a clear and unambiguous request to (/) CasteUain. v. Preston, 11 Q. B. D. 401. {g) 11 Q. B. D. 380. (A) 3 Q. B. D. 173. INSURANCE. 251 the insurers to rebuild should be made, for they are the proper parties to do the rebuilding. Instead of rebuilding the place themselves, the company may ask for security that the money shall be laid out in such rebuilding (/). Assignment of the Policij. — This is allowed only with the consent of the office ; and the benefit of the insurance will not run with the property, nor is the vendor even trustee of any money recovered (./), as a fact, he will have to retmTi it to the company (see above). Eights and Duties. — There is, of course, the ordi- nary right to be paid the value of the insui^able interest on the burning of the property, and also the corresponding duty of paying the premiums. The property must be accurately described in the policy, and any material variation will be fatal; e.g., a policy including "linen, wearing apparel, and plate," was held to be exclusive of anything but household linen, and linen bought for sale purposes was therefore not within it (/<•) . It is frequently agreed that notice of loss shall be given within a certain time to the company or its agents, and that this shall be accom- panied with particulars; if so, this is a condition precedent to recovering (/). The insurer is entitled to every right of the assured, whether such right consists in contract, tort, (j) See Westminster Fire Office v. The Glasgoic Provide»t Invest- ment Society, ubi supra. (J) Bayner v. Freston, 18 Ch. D. 1. (/,) Watchcorn v. Longford, 3 Camp. 422 ; and see cases in Koscoe'sN. P. p. 413. (/) Mason v. Harvey, 22 L. J. Ex. 336. 2'J2 RULKS KEI.ATING TO PARTICULAR CONTRACTS. or otherwise, or, as Brett, L. J., says: "As Letween the underwriter (;«) and the assured, the underwriter is entitled to the advantage of every right of the assured, whether such right consists in contract, ful- filled or unfulfilled, or in remedy for tort capable of being insisted on, or already insisted on, or in any other right, whether by wa}' of condition or otherwise, legal or equitable, which can be, or has been, exer- cised, or has accrued, and whether such right could or could not be enforced by the insiu-er in the name of the assured, by the exercise or acquiring of which right or condition the loss against which the assured is insured can be, or has been, diminished" (n). This is called the doctrine of subrogation. But, on the other hand, this doctrine allows an insurance com- pany to enforce only those rights which the assured himself could have enforced, and therefore, when a wife feloniousl}'' burnt her husband's proj)erty, and the company brought an action against the man and his wife for her misdeed, the action was dismissed, as the husband could not, as the law then stood, bring an action against her (o) . Marine Insurance. Marine insm-ance is a contract of indemnity against all losses accruing to the ship, cargo, or other subject- matter of a policy during a given voyage, or dm-ing ()h) The contract in this particular case was a fire policy ; but though the term underwriter is more usual in connection with marine insurance, its use is not confined to that form of insirrance. («) Castellain v. Freston, ubi supra ; and see Burnand v. Rodo- •) Brandon v. Kesbitt, 6 T. R. 23. (*) 31 & 32 Vict. c. 86 ; and see The Judicature Act, 1873, s. 25, sub-s. 6. 254 IIULES RELATING TO PARTICULAR CONTRACTS. insurance is void {f) . But the interest may accrue during the pendency of the policy, and even after the damage actually has occurred, pro\ided that at the time the insiu'ed was not aware of the accident, and acted mth loiia f(les{ii). An interest means danger of damage to the goods, ship, or any other tiling belonging to the insured {v). The contract must be effected in the form of a policy {ic), and this must be stamped in accordance with the Stamp Acts. It is customary to draw up a memorandum of the terms, which is initialed by the under^\Titcrs before the execution of the formal policy, and the general practice of the commercial community is to recognize this memorandum (called ^ J'/i Jl Slip) as the contract ; but at law nothing can be sued upon but tlie stamped policy, and the slip can be looked at by the Court for collateral piuposes only, nor does the initialiag of the slip create a contract to enter into a policy {w). The policy contains — (1) A stamp ; (2) The name of the assured (rendered necessary by 28 Greo. III. c. 56 {//) ) ; (3) The name of the ship ; but this may be communicated afterwards when cargo is insured, and the vessel in which it is to go is at the time not fixed upon. In such cases the insured should declare the shipment, and the value of it to the underwriter, {t) The remarks under life and fire insurance as to what amounts to an insurable interest, apply to marine insurance with slight changes; and see Wilson \. Jones, L. R. 2 Ex. 139. («) Sutherland \. Fratt, 11 M. & W. 296. \v) Seee.ff., Inglis v. Stock, 10 Ajjp. Ca. 263. \w) 30 Vict. c. 23, s. 7. [x) Fisher v. The Liverpool Marine Fnsurance Co., L. R. 9 Q. B. 418. This will not apply to the case of a fire policy : Thompson v. Adams, 23 Q. B. D. 361. ijj) But the statute is construed liberally. IXSURAXCE. 255 as soon as lie knows of it, and the policy attaches to the goods in the order in which they are shipped (~) ; (4) A description of the subject-matter of the con- tract ; (5) The premium, or amount to be paid by the insured to the underwriter ; (6) The voyage ; (7) The perils insiu-ed against ; (8) The memo- randum {a) ; (9) The subscription, /. e., the signa- tures of the parties (rec|uired to be inserted by the 30 Vict. c. 23, s. 7) ; (10) The amount of the insiu-- ance (which is required by the same statute). The policy may be in print or writing, or partly in one, partly in another. The form in ordinary use at Lloyds is set out in Maude and Pollock on Shipping, p. 444, and special attention should be paid to the last clause as there stated : " N.B. — Corn, fish, salt, fruit, flour, and seed are wan-anted free from average, unless general, or the ship be stranded ; sugar, tobacco, hemp, flax, hide, and skins are warranted free from average under 51. per cent. ; and all other goods, also the ship and freight, are "warranted free from average under 3/. per cent., unless general, or the ship be stranded." This clause is styled the monorcuidunt, and is intended to free the underwriters from liability for loss on certain articles of a perishable natiu-e, or for damage of minor importance. What is meant is, that unless the loss is a general average loss no payment is to be made by the underwriters on the policy (1) In the case of com, &c., unless the vessel is stranded ; (2) In the ease of tobacco, &c., unless the damage [z) Stephens v. Australasian Insurance Co., L. R. 8 C P. 18. If ro declaration of value is made, the policy would remaia good as an " open policy." la) See below. 256 RULES RELATING TO PARTICULAR CONTRACTS. exceeds 5/. per cent, of the value of the goods {n) ; (3) In other cases, unless the loss exceeds 3/. per cent., or unless the vessel is stranded {b). Rights and Duties. — The contract is one of in- demnity {(), and it is the duty of the underwriter to pay the insured the amount of the loss he has sustained by reason of the perils provided against. The damage against which the insured is indemnified must be such as has arisen proximately out of the peril; thus, if A. insures against "perils of the seas," he can recover if a wave knocks in the side of his ship, but if delay is caused by tempest, and in consequence meat carried on board turns putrid, the damage is not caused proximately by perils of the sea, and nothing can be recovered on that account [d ) . For a list of perils ordinarily insured against, see the form of the policy {e) ; amongst them will be found: perils of the seas, enemies, jettisons (/), restraints of princes and barratry {g). In a separate clause it is usual to insure against damages which may become due by the vessel insured, to another with which she has come into collision. This is styled the running down clause. The amount recoverable depends upon the parti- [a] In this case, though the loss come under the designation of general average. [b) As to what amounts to stranding, see Maude and Pollock, p. 495. {c) See Godsall v. Boldero, 2 Sm. L. C. 271. {d) Taylor v. Dunbar, L. R. 4 C. P. 206. \e) Maude and PoUock, p. 445. (/) I.e., throwing overboard goods from necessity to lighten the ship. {g) I. e., " any illegal, fraudulent, or knavish conduct by the master or mariners, by which the freighters or owners are in- jured." IMSURAN'CE. 257 cnlar facts, and upon the form of the policy (as to which see below). If the ship is in danger through perils insured against, the master or other agent of the insured may labour for and incur expense in saving, or attempting to save her or her cargo. It frequently happens that this is provided for in a clause styled the suing and labouring clause. This entitles the insured to perform the extra labour without pre- judice to his policy, and to have a contribution from the underwriter for the additional expense incurred, (>. g., charge for unshipping cargo which might other- wise be totally lost [h) . The risk commences at the period agreed upon, e. g., " from a port," " at and from a port," " from the loading [of the cargo] " ; and its termination likewise depends upon the wording of the policy, ('. g., "until at anchor of twenty- four hours in good safety" {i), or " until the goods are discharged and safely landed." The insured should not dela// the sailing of the vessel beyond the agreed upon time, and if no time is agreed upon, not beyond a reasonable time ; deviation on the voyage is not allowed. Delay is excused if it arises from circumstances beyond the control of the parties, or if it is necessary for any proper purpose, e. g., rejiairs. The same may (A) Kiclston V. The Empire Insurance Co., L. E,. 1 C. P. 535 ; 2 C. P. 357. (i) The cases dealing with this are to be found in Maude and Pollock, pp. 471 et seq. ; and see also (Monial Insurance Co. of New Zealand v. Adelaide Insurance Co., 12 App. Ca. 128 ; Hunter v. Northern Marine Insurance Co., 13 App. Ca. 717. M. S 258 IIULES RELATING TO PARTICULAR CONTRACTS. be said of deviation (./), whieli is defined to be " any unnecessary departure from the shortest or most usual course, and any improper or unaccustomed stoppage at a port " (/.) ; and any change of risk Avill be sufReient to constitute a variation. " It is not necessary to a deviation, or change of risk whereby the underwriters are discharged, that the degree or period of the risk should be thereby increased. The assured has no right to substitute a different risk" (/ ). Kinds of Marine Policies. — Among iha most im- portant divisions is that into open and ra/aed policies. An open policy is one which does not state the value of the subject-matter of the insurance ; hence after a loss, the anioimt to be paid by the underwriter re- mains a matter of assessment. In a valued policy the amount is fixed by agreement, and stated in the policy. Whether the valued amount exceeds the true value of the ship or no, the amount agreed becomes due according to the terms of the policy. " An exorbitant valuation may be evidence of fraud, but when the transaction is boi/d fide, the valuation agreed upon is binding" {m). This applies as between the underwriter and the assured only, and will not affect other parties as of course, though in some cases it has been taken into consideration {)/). Policies may also be divided into voyage, time, and {j ) Whether deviation to save property as distin.^uished from life is allowable, see remarks in " The True Blue,'''' L. R. 1 P. C. 250, 255. (A-) See Davis v. Garrett, 6 Bing. 725. {l) Phillips on Insurance, § 983. (»«) Bovill, C. J., in Barker v. Janson, L. R. 3 C. P. 308 ; and see Irving v. Manning, 1 H. L. C. 287 ; Barker v. Janson, L. R. 3 C. P. 303. («) E.g., Irving v. Richarchon, 1 M. & Rob. 153. INSURANCE. 259 mixed. A voyage policy is one wliicli will cover the subject-matter for a specified voyage or number of voyages ; a time policy covers it during the pendency of a specified period, which must not exceed one year (o). A time policy, in which the voyage also is specified, is styled a mixed policy, c. g., A. to X. for six months. Ee-i)is(i ranee and Doable Insarancc. — He-insurance occurs when one underwriter insures the risk he has undertaken wdth another underwriter ; at one time the right to re-insure was placed under restrictions, but since 1867 it is placed upon a similar footing to ordinary insurances. A double insurance occurs when the insured for any reason insures the same interest a second time. If the two together cause an over-insurance the excess cannot be recovered, but the insured may sue on whichever policy he desires, and may recover the whole sum specified ; the underwriters then arrange between themselves as to contribution [p). Alteration of a Policy. — In accordance with the general principles of contracts, an unauthorized alte- ration in a policy has the effect of making it void as against all who were not parties to the alteration {q). A material alteration by consent is usually made by indorsement signed by the parties, but (a) the alteration must take place before notice of the determination of the original risk (>•) ; and (b) must not extend the time beyond six months in the case ((/) 30 Vict. c. 23, s. 8. [p) Xcuhj V. Reed, 1 Wm. Bl. 416. {(j) Ante, p. 66. (/•) 30 Vict. 0. 23, s. 10. s2 2G0 RULES RELATING TO PARTK'ILAR CONTRACTS, of a policy made originally for less than six months, nor beyond a year in any other case (r) ; and (c) the alteration must not be such as to affect the amount of stamp duty. LoH-scs. — These are of two kinds : 2}nrtial, where the subject-matter of the insurance is only partially damaged, or where there is but an obligation to con- tribute to general average, and total, where the subject-matter is wholly destroyed, or has become so damaged that the owner is justified in abandoning it. Total losses are sub-divided into actual total io-^ses and construct ice total losses. An actual total loss occurs when the subject-matter is actually de- stroyed ; e. g., when a ship ceases any longer to be a ship, and becomes a mere bundle of planks, or when lost to the owner by an adverse valid decree of a Court of competent jurisdiction in consequence of a peril insured against (.s) . A constructive total loss occurs where, though the subject-matter is still in existence, yet its beneficial existence is lost to the owners, and when they have abandoned it ; c. g., when a vessel has sunk in deep water, and cannot be raised without incurring an expense out of proj)ortion to her value {t), or when goods have been seized by enemies, and have not been re-captured [a). In determining whether or not a loss is construc- tively total or is partial, the ordinary test is : would the owner if uninsured have incurred the expense of (>•) 30 Vict. c. 23, s. 10. («) E.g., sale by the Court of Admiralty: Cossman v. JTest, 13 App. Ca. 160. (0 Kemp V. Hallidaij, L. R. 1 Q. B. 520. (w) Dean v. Hornby, 3 E. >S: B. 190 ; and see Eoux v. Salvador, 3 Binff. N. C. 267. IXSURAXCE. 261 restoring his property, or would lie have abandoned it ? (r) . If a reasonable man would not have aban- doned, the loss is partial only, otherwise it is total ; and in coming to a conclusion he must be supposed to take all circumstances into consideration, e. g., the special value of the vessel to its owners [ic). Notice of Abandomnent. — In every case of total constructive loss, notice of abandonment must be given, otherwise the loss will be considered as partial (,r). It is required to be — (a) express and clear as to intention ; (b) total, /. ^., an owner cannot abandon part of the ship ; (c) given within a rea- sonable time {if), i. c, at the earliest opportunity ; (d) and by the owner or a properly authorized agent. It need not be in writing. When an underwriter pays an insurance indemnity he is entitled to stand in the place of the insured as to the subject-matter of the policy {z) ; hence the effect of the notice of abandonment, when it enures for the benefit of the insured, is to transfer the entire rights formerly possessed by him to the underwriter, and such transfer dates back to the time of the accident. From that time a ship's master becomes agent for the insurers. The insurance money becomes payable either when the vessel has been actually lost, or when there is reason to presume a loss. The presumption arises when she has not been heard of for a reasonable {v) Boux V. Salvador, ubi supra ; Kemp v. Halliday, ubi supra. (w) Grainger v. Martin, 2 B. & S. 456. \x) Knight V. Faith, 15 Q. B. 648. (V) Jiankin v. Fatter, L. R. 6 H. L. 83. (s) Darrell v. Tibbetts, 5 Q. B. D. 563. 2G2 IIULES RELATING TO PAKTICULAK CONTRACTS. time, varying with the circmnstances (r/) . If even- tually the vessel arrives safe she is treated as abandoned, and hecomes the property of the imder- Avriters. Adjusimciit of Lossoi. — The settlement between the insured and the underwriter is styled the adjustment, and is usually settled on behalf of the parties by their brokers. If an underwriter settles with the broker, the former is, according to Lloyd's rules, discharged as against the claims of the insured ; but ;it law this rule has not been fidly recognized, nor, unless it can be shown that the insured was aware of the custom, is it likely that in future a different rule will prevail {h). As to the amounts allowed — (i) In the case of a partial loss, if the policy is valued, an amount will be allowed proportionate to damage done ; if the policy is open the insurers tn^II have to pay two-thirds of the expenditure on the repairs, the other third being an arbitrary amount supposed to be equivalent to the gain obtained by the owner by the substitution of new materials, and work for old. But on a first voyage tliej' must pay the whole, (ii) In the case of a total loss, the value of the vessel is fixed in a valued policy ; in an open policy it is calculated. In the case of goods, when the policy is open, the insured may recover the price of the goods at the port of shijiment in addition to the commission and the premium paid (c) ; if valued then the amount agreed, (a) Maude and Pollock, p. 484. {/)) ToddY. JMd, 4 B. & A. 210; Bartlett v. Pentland, 10 B. & C. 760 ; but see Stewart v. Abcrdein, 4 M. & W. 211. {c) Usher V. Noble, 11 East, 639. INSURANCE. 263 or a j)ortion commensuiate to the amount of goods lost (rf). Return of the Preniiu))). — This should take place "when the risk has never commenced. Thus, if the policy he effected on enemy property before the commencement of the war (^'), or if the ship sails (without fraud) imseaworthy, the insiu'ers are never liable ; they incur no risk, and must return the joremium. So when a ship is over-insured, or doubly insured, a proportionate part of the premium paid is returnable (_/'). Warranties eincl Hepresentations. — "A warranty in a policy of insurance is a condition or contingency, and unless that be performed there is not any con- tract ; it is perfectly immaterial for what purpose it was introduced, but being inserted the contract does not exist, unless it be literally complied with" (g). A warranty, therefore, when once introduced must be strictly performed, otherwise the policy falls to the ground, though the loss has nothing whatever to do with the breach of warranty {h), and though the breach of warranty arose owing to events beyond the control of the warrantor (/). If express, it must be inserted in the contract, or incorporated with itC/). A representation is a statement made by the assured to the underwriter regarding the proposed {d) LeivisY. Jitickcr, 2 Buit. 1167. (e) Oom V. Bruce, 12 East, 225. (/) Amould, ii., 1226 (2nd ed.). (g) Lord Mansfield in Dc Halw v. Hartley, 1 T. E. 343, 345. (//) Woolmer v. Muilman, 3 Burr. 1419. (i) Hore v. Whitmore, 2 Cowp. 54. (/) Be Hahn v. Hartley, nhi supra. 264 RIT.ES RELATING TO PARTICULAR CONTRACTS. risk, but it is not an integral part of, nor is it usually inserted in the contract itself. If made, and if im- material, it must be substantially complied with (/.). It seems then to differ in effect from a warranty in this, that whereas a representation if untrue avoids the policy only if it is material, a warranty avoids the contract under any circumstances ; and further, that whereas substantial compliance is sufficient in the case of a representation, strict compliance is needed for a warranty (/). Warranties are express or implied. The more usual express warranties are — (1) To sail on a given day ; (2) That the vessel is safe at a given time. This is complied with if the vessel is safe at any time on that day, though at the hour when the policy is signed she has been lost (ij/) ; (3) To take a convoy ; (4) That the ship is neutral. This involves a warranty to continue neutral during the pendency of the risk, so far as the acts of the insured are con- cerned [ii). The more usual imj^lied warranties are — (1) Sea- worthiness at the commencement of the risk (o) ; but in time policies this implication does not arise {])). (2) Not to deviate or delay (see before). (3) To use reasonable diligence to guard against risks. (A) Dc Hahn v. Eartletj, uhi supra. (I) Fawson v. Wainon, 2 Cow-p. 785. The subject is very diffi- cult, but it seems that the word '* warranty " has not in insurance law the meaning it bears in general contract law : see ante, pp. 54, 95. (;«) Blackhurst v. CocleU, 3 T. K. 360. («) Carruthcrs v. Graij, 15 East, 35 ; and see generally, Smith's Mercantile Law, p. 366. (o) Earl of March v. Pigot, 5 Burr. 2802. \p) Gibson v. Small, 4 H. L. C. 353. INSURANCE. 265 Comeahnent . — It is the duty of tlie person intend- ing to insiu'e to communicate to the undenvriter every circumstance with which he is acquainted, and which is material to the risk, and further " every material fact, which, if communicated, would affect the judgment of a rational under'WTiter in considering whether he would enter into a contract at all, or enter into it at one rate of premium or at another" [q). Then he should communicate news tending to show that a vessel is overdue, that it is damaged, or that it is lost (r). But there is no need to communicate knowledge which the under^^Titers are likel}' to know, such as general trade custom, specidations as to war, tempest, &c. (s-). A principal is deemed also to know, and to be bound by the non- communication of, circumstances within the knowledge of his agent. " It is a condi- tion of the contract that there is no misrepresentation or concealment, either by the assured, or by any one who ought as a matter of business and fair dealing to have stated or disclosed the facts to him, or to the underwTiter for him "(;'). But this must not be carried too far. Lord Watson says [u) : " The re- sponsibility of an innocent insiu-ed for the non- communication of facts which happen to be within the private knowledge of persons whom he merely employs to obtain an insurance upon a particular (q) Brett, L. J., in Sivaz v. Geriissi, 6 Q. B. D. 222, 229 ; loiiides V. Femlrr, L. R. 9 Q. B. 531. (r) Gladstone v. King, 1 M. & S. 35. (s) Carter \. Bochm^Z'Bwcv. 1910. \t) Liudley, L. J., in Blackburn v. Vigors, 17 Q. B. D. 578. \u) Ibid., 12 App. Ca. 540, where the point was fully con- sidered ; and see Blackburn v. Haslaiii, 21 Q. B. D. 144. 2GG Rl LES RELATING TO PARTICULAR CONTRACTS. risk, ought not to be carried beyond the person who actually makes the contract on his behalf," YI. The Contract of Carriage. This contract belongs to a group which is classed together under the head of Bailments (r) ; amongst it are pledge, loan, and deposit. A bailment is de- fined by Sir William Jones {ir) as a delivery of goods in trust, on a contract express or implied that the trusts shall be duly executed, and tlie goods re- delivered as soon as the trust or use for wliich they were bailed sliall have elapsed or be perfonned. The person who receives the goods is styled the bailee, the person who delivers them the bailor. To these sevei-al general rules appl}', which are thus set out in Cliitty on Contracts (w) : — (1) " that in all con- tracts of bailment, if the performance of the promise of the bailee to retm-n the thing bailed becomes impossible because it lias perished ; this impossibility, if it did not arise from the negligence of the bailee, excuses him from the performance of his promise " ; (2) " ordinary neglect has been defined to be the omission of that care which every man of common prudence and capable of governing a family, takes of his own concerns ; gross neglect, to be the want of that care which every man of common sense, how inattentive soever, takes of his own property ; and slight neglect, to be the omission of that diligence (v) The law on this head is fully considered in Copffs v. Bernard. and the notes to it in 1 Sm. L. C. 199. {>(■) Law of Bailments, p. 113. {x) Pag-e434. THE CONTRACT OF CARRIAGE. 267 wliicli veiy circiimsj)ect and tliouglitful persons use in securing their own goods and chattels"; (3) "that where actual fraud exists, the bailee is liable what- ever may be the nature of his trust, even though the contrary be stipulated ; that a special agreement by any bailee to use more or less than the exact degree of care the law would have required from him, is in general valid ; and that Avhere pai-ticular orders are given and assented to, they form the contract between the jiarties, and the law implies a promise by the bailee to perform such orders " ; (4} " that although robbery by force is considered to be irresistible, a loss. by private stealth is said to be presumptive evi- dence of ordinary neglect"; (5) " that where a bailee seeks to excuse himself, on the ground that the loss arose fi'om the act of Grod, it must ajipear that the loss was the immediate result of such act." These rules ajiply to the contract entered into by a caiTier, as well as to that of any other bailee, except in so far as they are modified by special agreement. We will now consider two important branches of this part of law. Common Carriers. A common carrier is one who undertakes to carry for hire from place to place, the goods of anyone who employs him. Such are the owners of carriages or barges taking goods from town to to"s\Ti, also railway companies, to the extent to which they carry goods generally and by profession, or in consequence of statutory duty (v/) . But a person who conveys pas- [y) Falmer v. The Grand Junction Railway, 4 M. & W. 749 ; Bvghes v. The Great Western Hail. Co., 14 C. B. 637. 268 KULES RELATING TO PARTICULAR CONTRACTS. sengers only, is not a common carrier {z), nor is a carman who does merely casual jobs {n). Ditties of a Common Carrier. — He must carry the goods of anybody who delivers them to him, and Avho offers to pay his hire. This duty of taking any- body's goods is that which makes him a common carrier, /. e., a carrier common to all. He should carry the goods by the ordinary route, not of neces- sity the shortest, but without unnecessary deviation or delay [b) ; and should deliver them to the con- signee, where the consignee desii-es it, or in defaidt of any place being specified by the consignee, then wherever he is directed to take them by the con- signor (c) ; and if as between the consignor and the consignee there was a right in the former to change the destination of the goods, the carrier, on receiving due notice, must take the goods to the new destina- tion (d). As a rule, a land carrier should deliver at the consignee's house ; a sea carrier, at some place of safety, notice of the locality being given by him to the parties [e). He must keep the goods with a view to their proper preservation so long as they are in his custody; i.e., dui'ing transit, and even after its conclusion he must keep them, and is responsible for them for a reasonable time varying -with cir- cumstances (/). After that, he becomes a mere (;) Christie v. Griggs, 1 Camp. 79, 81. [a) Brind v. Dale, 2 M. & Rob. 80. {b) Briddon v. The Great Northern Rail. Co., 28 L. J. Ex. ol. (r) London and Xorth Western Rail. Co. v. Barilett, 7 H. i; X. 400. [d) Sheridan v. Xew Quay Co., 4 C. B. N. S. 618. {e) Hyde v. The Trent and Mersey Xavigation Co., 5 T. E. 397. (/) Ibid. THE CONTRACT OF CARRIAGE. 269 depositee, and is liable to a less degree accordingly, unless he holds them by any special agreement, e.g., as a warehouseman {rj). If the consignee refuses to take the goods, the carrier must do what is reason- able, and it will be safer for him to give notice of the refusal to the consignor, though this will not be always necessary [h). He cannot be comiielled to take the goods if his carriage is already full, or if the goods are such that he cannot, or does not usually, convey, or if they are of a nature such as to subject him to extraordinary risk ( i) ; he is exempt, by statute, from liability to carry material of a specially dangerous character, e.g., explosives, such as nitro-glycerine {j). Liahility for Loss or Dajj/age. — At common law, the carrier must make good any loss or damage, whether or no it be caused by his negligence, for his agreement is to carry safely and secm-ely, unless pre- vented by the act of God (/.•) , or of the king's enemies. He is, in fact, in the " nature of an insiu^er," as it is termed (/). This liability was at one time attached to all bailments, and the bailee, though gratuitous, was answerable even for robbery (;;/) ; for "to be kept, and to be kept safe, is all one " ; the ground of this rule being, that the bailee had his action over against the robber or the trespasser {ii). But he was iff) Shepherd v. The Bristol and Exeter Rail. Co., L. R. 3 Ex. 189. (/i) Hudson V. Baxcndalc, 2 H. & N. 575. (i) Garton v. The Bristol and Exeter Rail. Co., 1 B. & S. 112, 162. (.;■) 29 & 30 Vict. c. 69, s. 6. {k) For the meaning of this, see Xnqc/it v. Smith, 1 C. P. D. 423. ■). The exeraj)tion from tlie common Liw liability is given only where this notification and demand has been made (.s) , or when the declaration of value has not been given. "Wlien an extra charge is made, the per- son making payment is entitled to a receipt (/). (3) Other than as pr(n'ided for by the Act, no public notice shall be allowed to limit the liability of carriers, but special contracts are unaffected by the statute (ii), provided that the special contract is such as to be in- consistent with his having received the goods as a common carrier (r). (4) A felonious act on the part of a servant of the carrier resulting in damage or loss to the goods, will render the earner liable notwith- standing any other provision of the Act {ic). To de- termine who ai-e included under servants, see the section, and Mac/iii v. London and South Western Railivai/ {x)^ and Step/iois v. Londoji and South Western Eaihcay (//), It has been held in many cases, that the carrier's exemption applies only in the case where there is loss or injury to the goods ; he is therefore liable as here- tofore for what may be styled consequential damage. (>•) Sect. 2. (s) Baxendale \. Hart, G Ex. 769, 789. \t) Stamping is dispensed with : sect. 3. («) Sects. 4 and 6. (r) Baxendale v. The Great Eastern RaU. Co., L. E. 4 Q. B. 244. {iv) Sect. 8. (x) 2 Ex. 415. {tj) IS Q. B. D. 121. As to the amount of evidence required to cause the Court to infer that the theft was committed by a servant of the carrier, see Vaughton v. The London and Xorth Western Rail. Co., L. E. 9 Ex. 93 ; McQueen v. The Great Western Rail. Co., L. E. 10 Q. B. 569. THE CONTRACT OF CARRIAGE. 273 e.g., damage from delay, circuity of route, &c. Cliitty lays it down broadly that Lis common law liability remains, " where the damage complained of is occa- sioned by the carrier's misfeasance " (z). The LiahUity of Sea-carriers is now regulated by the Merchant Shipjiing Acts, 1854 and 1862. It is by the first of these enacted that when loss or damage occurs Avithout the owner's actual fault or privity, he is not liable at all in the following cases : — (i.) when goods or other things on board are lost or damaged by reason of any fire happening on board ; (ii.) w'hen gold, jewelry, silver, or precious stones are stolen or made away with, and when the shipowner or master has not received a written declaration of their value and nature {a). By sect. 54 of the Act of 1862 (ft), the shipowner's liability to damage is limited, in the eases mentioned below, to an amount of 15/. per ton or 8/. per ton, depending upon whether damage to the goods is or is not accompanied by personal inju- ries : (i.) where any loss of life or personal injui-y is caused to any person being carried in the ship; (ii.) where any damage or loss is caused to any goods, merchandise, or other things on board; (iii.) when any damage to person or property in or on another ship is caused by improper navigation ; where the misfortune has occurred without the owner's actual default or priority, he is not liable at all. As to damage caused by non-pilotage or incom- {z) Hinton v. Bihbin, 2 Q. B. 64 ; Garnett v. Willan, 5 B. & Aid. 53, 61 ; Cliitty, Contracts, p. 465. [a] Sect. 503. This applies only to British ships. {h) Which section applies to foreign as well as British ships. M. T 274 RULES RELATING TO PARTICVLAR CONTRACTS. petent pilotage, see later, and the Merchant Shipping Act, 1854, s. 388, «S;c., and Maude & Pollock on Shipping, p. 281. Ixaihcdij Co)iij)rniics are common carriers, hut the }»uhlic being interested in their conduct, special Acts have been passed dealing with their liability for damage caused to property carried by them. The Eailway and Canal Traffic Act, 1854 (c), provides that "every such company as aforesaid shall be liable for the loss of or for any injury done to any horses, cattle, or other animals, or to any articles, goods, or things, in the receiving, forwarding, or delivering thereof, occasioned by the neglect or default of such company or its servants (r/), not'VA'ithstanding any notice, condition, or declaration made and given bj' such company contrary thereto, or in anywise limit- ing such liability ; every such notice, condition, or declaration being hereby declared null and void : provided always, that nothing herein contained shall be construed to prevent the said companies from making such conditions ^Nith respect to the receiving, forwarding, and delivering of any of the said animals, articles, goods, or things, as shall be adjudged by the Court or judge before whom any cpiestion relating thereto shall be tried, to be just and reasonable : pro- vided always, that no greater damages shall be recovered for the loss of or any injury done to any such animals, beyond the sums hereinafter mentioned : /. e., for any horse 50/. [and so on], unless the person (r) 17 & 18 Vict. c. 31, extended to steamboats and to other vessels o-mied by railway companies by 31 & 32 Vict. c. 119, s. 16. {d ) Qua carriers, not when it is acting in any other capacity : Van Toll v. The South Eastern Rail. Co., 12 C. B. N. S. 75. THE CONTRACT OF CARRIAGE. 275 sending or delivering the same to sucli company shall, at the time of delivery, have declared them to he re- spectively of higher value than as ahove mentioned ; in which case it shall he lawful for such company to demand and receive by way of compensation for the increased risk and care thereby occasioned a reason- able percentage (e) upon the excess of the value so declared above the respective sums so Hmited as aforesaid, and which shall be paid in addition to the ordinary rate of charge ; and such percentage or in- creased rate of charge shall be notified in the manner prescribed in [the Land Carriers Act, 1830], and shall be binding upon such company in the manner therein mentioned" [then follows as to proof of value] ; " provided also, that no special contract between such company and any other parties respecting the receiving, forwarding, and delivering of any animals, articles, goods, or things aforesaid shall be binding upon or affect any such party unless the same be signed by him or by the person delivering such animals, articles, goods, or things respectively for carriage ; provided also, that nothing herein con- tained shall alter or affect the rights, pri\ileges, or liabilities of any such company under [the Land Carriers Act, 1830], with respect to articles of the descriptions mentioned in the said Act." An important discussion arose at one time with regard to the special contract required by this Act. Did writing signed exclude the clause requiring the condition to be reasonable, and did a reasonable con- (e) What is a reasonable percentage is a question for the jury : Harrison v. The London, Brit/hion, and South Coast Hail. Co., '61 L. J. Q. B. 113, 119. T 2 276 RULES RELATING TO PARTICULAR CONTRACTS. dition exclude the necessity of signature? Tlie point was eventually decided in Peck v. The North Stdjfbrd.s/iiir Boil. Co. {/), when the House of Lords declared that the condition must be just and reason- able, and embodied in a signed written contract. What is or is not unreasonable depends, of course, on circumstances ; thus, in one case the condition was that " the company would not be responsible for any injury or damage, however caused," and this was considered unreasonable, for it would protect even against gross negligence (g) ; in another, it was a condition that the company would not be responsible for luggage unless fully and properly addressed with the owner's name and destination ; held unreason- able {!/) ; but when the consignor is burdened with a condition which per se is imreasonable, and at the same time has the offer of a just and reasonable alternative contract, then, if he takes the former, he will be bound by it (/). By the Regidation of Railways Act, 1868, s. 14, it is enacted that where a company, by through book- ing, contracts to carry any animals, luggage, or goods from place to place, pai-tly by railway and partly by sea, or partly by canal and partly by sea, a condition which shall exempt the compan}' from any liability for loss or damage arising from the act of Grod, the king's enemies, fire, accidents from (/) 10 H. L. C. 473; and see judgment of Jervis, C. J., in Simons v. The Great Western Rail. Co., 26 L. J. C. P. 25, 32. {jg) McManus v. The Laneashire, S;c. Rail. Co., 4 H. & N. 327. {h) Cutler \. The Xorth London Rail Co., 19 Q. B D. 64; and see BicJcson v. The Great Xorthcrn Rail. Co., and the cases cited there, 18 Q. B. D. 176 ; Watkins \. Rhymill, 10 Q. B. D. 178. («) Great Western Rail. Co. v. McCarthy, 12 App. Ca. 218. THE CONTRACT OF CARRIAGE. 277 machinery, boilers, and steam, and all and every other dangers and accidents of the seas, rivers, and navigation, shall be good, and shall be considered to be incorporated in the contract, if it be TVTitten legibly on the receipt or freight note, and published in a conspicuous position in the booking-office. A fruitful som-ce of litigation is the loss of luggage of a passenger who is being or has been carried in a train. If the luggage has been taken by the pas- senger out of the control of the company, the latter is clearly not liable, but ■ the company's porters fre- quently take charge of luggage, and the difficulty is to know when they are so acting as agents of the company, and when of the passenger. The cases on this point may be found in the arguments and judgments in Richards v. The Loiidouy Brighton, and South Coast Rail. Co. (J), Stetcart v. The London and North Western Rail. Co. {k), and Great Western Rail. Co. V. Ranch (/). Rights of the Carrier. — These are to have the goods delivered to him, and to have his remuneration paid. The payment must be reasonable, but at common law it need not be uniform. He may claim it in advance, /. e., before he carries, but not before he re- ceives the goods [m). Kailway companies are on a peculiar footing, and must forward goods "without delay or partiality, and cannot give preferential rates such as to handicap any other company or persons. Powers are given by the Eailway and Canal U) 7 C. B. 839. {k) 33 L. J. Ex. 199. \l) 13 App. Ca. 31. {m) Fickford v. The Grand Junction Eailway, 8 M. & W. 372. 278 RULES RELATING TO PARTICULAR CONTRACTS. Traffic Act, 1854, to tlie Court of Common Pleas, and by the Eailway and Canal Traffic Act, 1888 (w?), to a commission, to hear complaints, and to make such orders as may, under the cii'cumstances, be right. The Contract of Affreightment. This contract has for its object the carriage of goods in vessels, and it is foimd in two forms : — (a) The contract of affreightment by charter-party ; (b) The contract for the conveyance of goods in a general ship, which contract is embodied in a bill of lading. These two contracts have many incidents in common, and these will be treated of when their forms have been considered. Contract hij Charter-part ij. " An agreement by wliich a ship-owner agrees to place an entu-e ship, or a part of it, at the disposal of a merchant for the conveyance of goods, binding the ship-owner to transport them to a particular place, for a sum of money, which the merchant imdertakes to pay as freight for their carriage." This is the definition given in Maude & Pollock on Shipping (y^). The person whose goods are to be taken is called the charterer. The charter-party may, but need not be, under seal, but must be stamped (o). It seldom amounts to a complete demise of the ship; i.e., the ship gene- rally remains in the possession of the o^^^ler, the (w) 51 & 52 Vict. c. 25. («) Page 289 : and see Abbott, Part iii. chap. 1. (o) See later, and Maude and Pollock, p. 290. THE CONTRACT OF CARRIAGE. 279 charterer acquiring tlie riglit only to put his goods on the vessel, and to have them carried (^j). Amongst the more usual terms are — the agreement to pay freight, to carry goods, exonerations from lia- bility in the case of dangers and accidents of the seas, rivers, and navigation, and where performance is prevented by restraint of princes {e. (/., declaration of war) , agreement by the merchant to load and unload Avithin a specified time, or to pay demui-rage {q) . In addition to these, there are terms which, in the absence of agreement to the contrary, will be implied by law, such as that the ship is seaworthy, that slie shall sail within a reasonable time, that there shall be no unnecessary deviation. The following form (>•) will show the stipulations ordinarily inserted : — " It is this day mutually agreed between Messrs. [A. B.], agents for owmers of the good ship [or vessel] caUed [The James Scott], Al, 12, and newly coppered of, &c., of the bm-den of 340 tons (.s) register measm-ement, or thereabouts, whereof [C. D.] is master, now in [Liverpool] (/), and Messrs. [E. F. of Liverpool], merchants, that the said ship being tight, staunch and strong, and every way fitted for the voyage, shall with all convenient speed load in [Princes Dock] a full and complete cargo of lawful (p) Sandeman v. Scurr, L. R. 2 Q. B. 86, 96. For a case where a decision was given in favour of a demise, see Trmitij House v. Clarke, 4 M. & S. 288. {q) See below, p. 289. (/•) Taken from Maude and Pollock on Shipping. \s) This should not be omitted, but a mistake in it will not vitiate the contract. Hunter v. Frij, 2 B. & Aid. 421. {() A statement of this kind may be held a warranty, and its falsity will then release the charterer. Behn v. Burners, 1 B. & S. 877. 280 RULES RELATING TO PARTICULAR CONTRACTS. merchandize, not exceeding 400 tons in weight, and therewith proceed to [Hong Kong or Shanghai] as ordered before sailing, or so near thereunto as she may safely get, and there deli\'er the same agreeably to bills of lading ; after wliieli she shall load there, or if required, proceed to one other safe port [in China] and there load in the usual and customary manner from the agents of the said charterers a full and complete cargo of tea or other lawful merchandize, the cargoes being brought to and taken from alongside the vessel at the charterers' risk and expense (m), which the said merchants bind themselves to ship — not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions, and furniture — and being so loaded shall therewith ])roceed to [Liveri)0()l or London] as ordered on signing bills of lading abroad, or so near thereto as she may safely get {v), and there deliver the same in the usual and customary manner to the said char- terers or their assigns, they paying freight for the same at the rate of [£7 10s. per ton of fifty cubic feet] for tea delivered, for the round out and home ; a deduction of [5.s\ per ton] to be made if ship be discharged and loaded at [Hong Kong], other goods, if shipped, to pay in customary proportion ; in consideration whereof the outward cargo to be carried freight fi"ee ; pa}^nent whereof to be made as follows : [then follow terms]. Ship to have liberty to put on board 80 tons of [ ], or other dead weights, and (») Sometimes the agreement is to bring alongside free of expense. ((') As to the cases on this and its meaning, see Xehon v. Dahl, 12 Ch. D. 568 ; and Maude and Pollock, p. 317. THE CONTRACT OF CARRIAGE. 281 to retain it on board dming the voyage. Tliirty running days (Sundays excepted) are to he allowed the said merchant if the ship is not sooner dispatched for loading in [Liverpool], and fortj-five like days for all i^iu'poses abroad, and ten days on demurrage over and abo^e the said laying days and time herein stated, at [£10 sterling per day], paying day by day as the same shall become due. The time occupied in changing ports not to count as laying days. Should it be necessary for the vessel to take in dunnage, the same to be provided by the owners. Tlie master to sign bills of lading at such rates of freight as may be requii-ed by the agents of the charterers, without prejudice to this charter-party {ic) ; and the owners to have an absolute lien upon the cargo, for the recovery of all freight, dead freight, demiuTage, &c., due to the ship under this chai-ter-party. " The act of Grod, the Queen's enemies, fire, and all other damages and accidents of the seas, rivers, and na%dgations, of what nature and kind soever, through- out the voyage, being excepted. " The vessel to be consigned to the charterer's agents abroad, free of commission. On the return of the ship to [Liverpool], she shall be addressed to [Gr., H. & Co.,] brokers, or to their agents at any port of discharge. Penalty for non-performance of this agreement, the estimated amount of freight." A chai-ter-party, like any other contract, is gov- erned in its construction by ordinary rules of law ; evidence is admissible to explain the contract, but not to contradict it ; and if any words used have a («■) As to tliis clause, see Maude and Pollock, p. 319. 282 RULES RELATING TO PARTICULAR CONTRACTS. teclinical meaning, tlien evidence may be produced to explain them. The contract by charter-party is always construed in a liberal way, so as to get as near as may be at the exact intention of the parties. Many cases on these points are mentioned and dis- cussed in Maude and l^ollock on Shipping, p. 294 (.r) . Contract of AffreiijJitiiicnt by Bill of Lading. A bill of lading is a document acknowledging the shipment of goods {if), and it is given in almost every case, though primarily it is incident to the contract for the carriage of goods on a general shij) (/. e., a ship which is used for the carriage of the goods of any mereliant wlio may desire to have them conveyed by her, and which is not employed for tlie carriage of a chai'terer's goods only (s)). The foim of a bill of lading varies much according to the practice of the parties thereto, but a usual fonn is as follows : — " Shipped in good order and condition by , and upon the good ship called the ' British Tar,' whereof is master for this present voyage, and now in the harboiu' of , and bound for , oO casks of mne being marked and numbered as in the margin, and are to be delivered in the like good order and condition at the aforesaid port of , the act of God, the Queen's enemies, fii^e, and all and every other dangers and accidents of the seas, rivers, and na^dsration of whatever kind or natm^e soever (.r) j\ji(i see Smith's ilercantile Law, 9tli ed. p. 290. (.V) Caldicelly. Ball, 1 T. R. 216. (z) Maude and Pollock, p. 338. THE CONTRACT OF CAKRIAGE. 283 excepted, unto or to his assigns, he or they paying freight for the said goods £ per ton delivered with primage and average accustomed. In witness whereof, the master of the said ship hath aflfirmed to hills of lading all of this tenoiir and date, one of which bills being accomplished, the others to stand void. "Dated, &c."(rt). The bill must bear a stamp value sixpence, which must be affixed before execution {h) . The bill of lading is signed generally by the master, though in practice, where goods are shipped, the acknowledgment first given is a receipt by tlie mate (a "mate's receipt"), which is afterwards exchanged for a bill of lading signed by the master ; but there is nothing to prevent the giving of a bill of lading without production of the mate's receipt, if the goods are on board, and if there is no interest in them known to the master except that of the shipper (c). If the mate's receipts and the bills of lading get into different hands, the goods must be delivered to the holders of the bill (c) . The master, when he signs, affixes his signatm'e as agent of the owners of the vessel ; except that when a vessel has been chartered, and the charterers put up the vessel as a general ship, then the master may be agent of the charterer and not of the owner (/^/), the decision in each case depending upon the facts. The law on this subject may be stated in the words (rt) See Maude and Pollock, pp. 338, 350, and notes. (6) 33 & 34 Vict. c. 97. (c) Hathesing v. Laing, L. R. 17 Eq. 92. [d) Schuster v. McKellar, 7 E. & B. 724. 284 RULES KELATING TO PARTICULAR CONTRACTS. of Cockburn, C. J., in Sandeman v. Scurr{<) : " where a party allows another to appear before the world as liis agent in any given capacity, he mnst be liable to any party who contracts mth such apparent agent in a matter witliin the scope of such agency. The master of a vessel lias by law authority to sign bills of lading on behalf of his owners. A person shipping goods on board a vessel, unaware that the vessel has been chartered to another, is AvaiTanted in assuming that the master is acting by virtue of his ordinary autliority, and therefore acting for his o^vTiers in signing bills of lading. It may be that, as between the OAvner, the master, and the charterer, the autho- rity of the master is to sign bills of lading on belialf of the charterer only, and not of the owner. But, in om- judgment, this altered state of the master's authority will not affect the liabiKty of the owner, whose servant the master still remains, clothed "with a character to which the authority to bind his o"v\iier by signing bills of lading attaches by virtue of his office. We think that until the fact that the master's authority has been put an end to is brought to the knowledge of a shipper of goods, the latter has a right to look to the owner as the principal with whom liis contract has been made." Thus, where charterers put up a vessel as a general ship, and plaintiff put on board "v\dne, and received bills of lading in ordinary form signed by the master, the owners were held liable for loss by leakage caused by improper stowage, it being questioned whether an action w^ould not lie also against the charterers (/). {e) L. R. 2 Q. B. 86, 97. (/) L. E. 2 Q. B. b6. THE CONTRACT OF CARRIAGE. 285 But if the charter-party amounts to a demise of the vessel, then the master signs as agent of the char- terer {(j) . The master has no authority to sign a bill of lading for goods not actually received on board [h), and if he does so, the owners are not liable. As regards the master's liability, by the Bills of Lading Act, " every bill of lading in the hands of a con- signee or indorsee for valuable consideration, repre- senting goods to have been shipped on board a vessel, shall be conclusive evidence of such shipment as against the master or other person signing the same, notwithstanding that such goods or some part thereof may not have been shipped" (/). But the master will not be liable if — (a) the holder of the bill at the time of receiving it is aware that the goods have not been actually shipped; or (b) the misrepresentation in the bill was caused by the fraud of the shipper, the holder, or of some person under whom the holder claims (./). The general duty cast upon the shipowner is to carry the goods with safety, subject to any limitation as may be agreed upon. Such limitations are {e.g.) exceptions from liability for damage caused by the " act of God and the Queen's enemies," " accidents from machinery," &c. Many others are mentioned and the cases concerning them discussed in Maude [g] L. R. 2 Q. B. 96 ; and seejMaude and Pollock, p. 340. (A) McLean v. Fleming, L. R. 2 H. L. Sc. 128; Jessel v. Bath, L. R. 2 Ex. 267. But -when there is a special provision in the charter-party, see Lhhman v. Chrhtie, 19 Q. B. D. 333. (j) IS & 19 Vict. c. Ill, s. 3. If the actual goods are delivered, the master is not bound by a statement as to their weight in the bill of lading. Blanchet v. PoiveWs CoUierij Co., L. R. 9 Ex. 74. {j) Sect. 3 ; and see Valicri v. Boijland, L. R. 1 C. P. 382. 286 KULES RELATING TO rARTlCT.LAR CONTRACTS. and Pollock on Shipping, pp. 350 et seq. Of course, any exceptions may be introduced at the will of the parties, but damage arising from negligence will always have to be made good by the shipowner, unless such damage is clearly excepted. The goods must be delivered in good order and condition, and when the bill states that they are shipped in such a state, it is called a c/ran bill of lading, and it obliges the master to deliver in such condition, though the statement be untrue. To avoid liability on this account, he will often add in the margin or at the foot of the bill, the words " weight, contents, o)id value, unknoicn,''' and then he is liable only so far as the statement is true in fact (/.•) . The master must deliver the goods to the consignee upon payment of freight ; or if the bill has been assigned, then ho shoidd deliver to the holder of the bill. When several have been signed, and when they have got into the hands of difPerent persons, the first transferee for value is entitled to the goods (/). If the master has notice of conflicting claims, it is his duty to interplead. Freight. Freight is the name given to the reward paid to the shipowner for the legal carriage of goods. In the absence of agreement it is not payable until the voyage has been completed {m) ; but sometimes it is agreed that the payment shall be in advance, in which case, but subject to special arrangements, the (fc) Jessel V. Bath, L. E, 2 Ex. 267. [1) Barber v. Mej/erstcbi, L. K. 2 C. P. 3S ; 4 H. L. 317. (»«) The Diana, 5 Rob. 71 ; Liddiard v. Lopes, 10 East, 526. THE COXTKAUT OF CARRIAGE. 287 failure of the voyage gives no claim to tlie return of the money (h). Each case depends upon its own circumstances, and to these it is necessary to look to determine whether a given payment is intended as freight in advance, or as a loan ; and though it be called " freight in advance," it by no means follows as of course that it is such (o). Freight pro rota. — This is the term given to a payment which is sometimes made for can-iage of goods when the voyage has been performed in part only. The rule is thus set out in Maude and Pollock on Shipping, p. 368. " If the original contract has not been performed no claim can arise under it ; but if there is a volioifar// acceptance of the goods at a point short of their destination, in such a mode as to raise a fair inference that the further carriage was intentionally dispensed with, a new contract will be implied to pay compensation commensurate with the benefit actually received ; that is to say, to pay freight for that portion of the voyage which has actually been performed" {p). It must be added that no fi'eight 2)ro rata can accrue till the voyage has been commenced (q). Liability to Pay. — The liability to pay freight rests primarily on the shipper, but the usual course is for the master to retain the goods until he receive payment from the consignee, or from the indorsee of the bill of lading. The question of liability "is a (m) Byrne v. Schiller, L. R. 6 Ex. 319. (o) Lidgett v. Perrin, 11 C. B. N. S. 362. (p) And see the judgment of Dr. Lushington in The Cargo ex Galam, Br. & L. 167. [q) Ciaiiiig v. long, 1 B. & P. 639. 288 RULES RELATING TO PARTICULAR CONTRACTS. matter of fact, and there is absolutely no presump- tion of law. Thus, if a merchant is indorsee of a bill, and claims the goods thereunder, there would be strong evidence of a contract by him to pay the freight, but this evidence can be rebutted by other e"\ddence ; e.g., that the bill was indorsed as a pledge merely, and without intention to pass the property in the goods (>•) ; in fact, the question is, Who entered into the contract to pay, and has this contract been altered, or have new parties been added by any subsequent arrangement ? Lien for Freight [s). — The shipowner possesses a lien upon the goods which he carries, until he has received payment of freight. The lien extends to all the l)roperty consigned by the person by whom the freight is due, but it ceases altogether upon delivery of the goods. In many cases it may be inconvenient to retain them on board, and yet if landed the lien upon them would be in danger of being lost ; to avoid this it is enacted by the Merchant Shipjjing Act, 1862, that within a certain time, and under certain circumstances therein set out {t), the ship- ow^ner may land the goods at the place agreed upon, or at some other suitable place, and upon giving written notice of his claim to the o"WTier of the place of landing, he may retain liis lien. There are im- portant sections in the Act relating to the payment of freight under such circumstances, and as to the rights and duties of the wharf o"UTier, the master and the consignee in relation thereto {u). (r) Sewellv. Burdieh, 10 App. Ca. 74. (s) See Maude and Pollock, i^p. 3S9— 400. \t) See sects. 67, 68. (m) Sects. 69 to 77. THE CONTRACT OF CARRIAGE. 289 Demurrage. This word has several meanings : (1) delay in unloading or loading a vessel ; (2) damages for such delay as agreed ujion in the contract of affreight- ment ; (3) unliquidated damages for such delay. It would seem that the second meaning is the most correct. The number of days allowed for loading or unloading (stj^led the " lay days ") is generally fixed by agreement, but in the absence of this, a reason- able time must be allowed (r), and the time counts from the day when the vessel is placed ready and at the disposal of the charterer, at the place agreed upon in the charter-party. General Average. Average generally may be said to mean a loss which does not extend so far as a total loss. It consists of two kinds : (1) Particular average, which arises whenever any damage is done to the property of an indi\'idual by accident or otherwise, but which is not suffered for the general benefit, e. g., loss of an anchor, damage by water to cargo. These losses remain where they fall, and no extraordinary com- pensation is granted in respect of them. (2) General average extends to "all loss which arises in conse- quence of extraordinary sacrifices made, or expenses incurred, for the preservation of the ship and cargo, and this must be borne proportionably by all who are interested {w). The essentials of a general average loss are (a) that (i) Fowler v. Ktioop, 4 Q. B. D. 299. (!<•) Birkley v. Fresgrave, 1801. M. U 290 RULES RELATING TO PARTICULAR CONTRACTS. it lias been incurred intentionally ; (b) tliat it was incurred for the safety of the vessel or cargo gene- rally (./■) ; (c) that it was properly incuiTcd (//) ; (d) that the ship, cargo, or some portion, has actually been preserved (c). Ordinary cases of loss which amount to a general average loss are : jettison of cargo ; voluntary stranding to avoid wreck ; repairs rendered necessary by collision {a) . AVhatever comes under the head of general average loss, must be shared by those who have been in a position to be benefited [b) by the sacrifice, e. g., the owners of the ship, and the freight, and " all mer- chandize put on board for the benefit of traffic must contribute " ; but the wages of the seamen are not affected. The rules relating to the adjustment of average vary in different countries. The English rule varies according as to whether the adjustment takes place at the port of sailing, or at the port of destination. If the vessel puts back to her original starting poii, the goods are valued at their invoice price, and the amount to be contributed by each is settled on that basis ; but if she reaches her destination, they are valued at the sellmg price. The owners of the damaged goods have to bear their proportionate amount of loss {c) . The law applicable to adjustment will depend (.(•) Xeslitt V. Lnshington, 4 T. R. 783. (y) Maude and Pollock, p. 427. (z) Ibid. p. 434 ; Amould, vol. ii. p. 931. (rt) Plummer v. WUdman, 3 M. & S. 482. (i) Eoi/al Mail Steam Packet Co. v. English Bank of Bio Janeiro, 19 Q. B.' D. 362. ((■) Maude and Pollock, p. 435. CONTRACTS WITH SEAMEN. 291 upon the intention of the parties, but the presump- tion "will be in favoiu' of the law which is in force at the port of discharge. It frequently happens that, in marine insurance policies, the underwriter agrees to be liable for general average " as ^je>' foreign state- ]nent " ; this binds him as to the correctness of the statements of the foreign average stater, and may also bind him to accept as general average whatever the foreign average stater may consider as such (d). It is, however, altogether a matter of fact, \iz., Wliat is the intention of the parties ? and evidence will be •admissible to enable the Court to come to a decision. Stoppage in Transitu. This has been treated of previously. See under •Sales, p. lO'j, VII. Contracts with Seamen. Owing to the peculiar natm'e of the service to be rendered, and to the want of providence supposed to I)e an ordinary characteristic of the sailor, and also to the complete control over him, which a master may have when the vessel is away from England, it has seemed good to the Legislature to enact special rules with regard to contracts with seamen ; these are to be found in the Merchant Shipping Acts, and notably in the Merchant Shipping Act of 1854, which in this chapter will be styled " The Act "(e). (d) Jfavro v. Ocean Marine Insurance Co., L. R. 10 C. P. 414. (e) The Merchant Shipping Fishing Boats Act, 1883, has im- portant sections relating to the particular class of sailors to which it refers. u2 202 RILES RELATING TO PARTICTLAR CONTRACTS. Formation of the Contract. Every agreement may, if the ship is a liome trad- ing ship, and must, if it is a foreign going sliip (b)^ he entered into before a superintendent of a mer- cantile marine office, and must he read over to the sea- man by the superintendent, and if necessary must be explained ; and the seaman must sign in the super- intendent's presence (r). In the case of a home ship, the agreement may be explained by the master, and the seaman's signature may be affixed in the presence of any attesting witness {(/). As to length of time during Avhich the contract may be made to last, see sects. 101, l.">2, and 1(12 of the Act of 1854, and sect. 16 of the Merchant Shipping Act, 1872. Seamen shipped in the colonies are to be engaged before some suiierintendent, or if there be none, then before some officer of customs {r) ; and seamen shipped in foreign ports are to be engaged before the consul, and the sanction of such consul shall be indorsed upon the agreement, and he shall state the fact of his attestation of the agreement (./') , The form of agreement is one sanctioned by the Uoard of Trade ; it must be dated at the time of the first signature, and must be signed first by the master, then by the seaman. It must contain : (i) the nature, and (so far as possible) the dui-ation of the intended voyage ; (ii) the number and description of the crew ; (iii) the date of commencement ; (iv) the capacity in {b) See the definition of these terms in the Act, sect. 2. {c) Sect. 150. Different lules apply to substitutes, ^ee same section. (ff) Sect. 155. {f) Sect. 159. (/) Sect. 160. CONTRACTS WITH SEAMEN. 293 >vliich each seaman is to serve ; (v) the wages ; (vi) a «cale of the provisions to be furnished to each seaman ; (vii) regulations as to conduct, punislmient, &c. (g). It is usual for the crew to agree to conduct them- selves in an orderly manner, and to obey the master in all matters relating to the ship ; provisions not contrary to law may be inserted, but these are always looked at jealously, and construed most strictly in favour of the seaman. No stamp duty is required on the contract (//). Rights and Duties. Riglds. — Possibly the most important of the riglits of the seaman is given liim by the Merchant Shipping Act, 1876, sect. 5. By that section it is enacted that, notwithstanding any agreement to the contrary, it shall always be an implied term in every contract with the seaman or master, tliat tlie owner, or liis agents, shall use every endeavour to make and keep the ship seawortliy. Amongst his other rights are these : (i) to be em- ployed, and he is entitled to compensation if he is improperly discharged within one month of his be- ginning to earn wages ; such compensation being in addition to the wages actually earned (/) ; (ii) not to be discharged without lawful cause ; (iii) to have his agreement placed in an accessible place [j ) ; (iv) to be properly fed, and to have compensation for improper allowances of food ; any tlu-ee or more seamen may {g) Sect. 149. {h) See the Stamp Act, 1870, Schedule, and^Jos^ (i) Sect. 167. {j) Sect. 166. 294 RUI,KS RELATING TO rAKTICUi.AK CONTUACTS. complain to .any officer in command of a Queen's sliip^ or to a consular agent, or superintendent of a mer- cantile marine office, and such officer shall forthwith inspect the food, and shall report accordingly ; the captain is bound to obey tlie officers directions, but the seamen forfeit a week's wages if tlieir complaint is groundless {k) ; (v) to be attended free of charge if made ill or hurt in the service of the ship (/) ; (vi) tc^ have his irntjfs. Those he may claim from the date settled in the agreement, or from when he first begins work, whicliever happens first (;//); and he re- mains entitled until the expiration of the agreed upon time. It was formerly the rule that unless freight was earned, wages did not become due, for " freight is tlie mother of wages." lender the Act this no longer holds good, and now a seaman is entitled to wages though no freight has been earned, unless in cases where the sliip has been ■^^Tecked or lost, he did not exert himself to tlie utmost to save it {n). The seamen have a lien upon the ship, and no agreement they make will take this away, nor can they surrender any other right to wages (o) . The time wdthin which wages must be paid is regu- lated by the ISTth section : (1) a home ship, within two days of tlie termination of the agreement, or at discharge, wliichever occm's first ; (2) other ships (with eertam exceptions) , within thi-ee days after the cargo has been delivered, or within five days of the (k) Sects. 221, 222, 223. (1) Sect. 228. As to medicines, see Act of 1867, s. 4. (m) Sect. 181. («) Sect. 183 (c/) Sect. 181. CONTRACTS WITTI SEAMEN. 295 seaman's discharge, whichever happens first. An account of the wages, witli all deductions specified, must be delivered to the seaman, or to the super- intendent (7;). If the sailor desii-es it, a portion of liis pay, not exceeding one half, may be given to his wife or children or to certain other relations, by means of allotment notes ; and any stipulation to that effect must be inserted in the agreement {q). The wife takes the amount subject to her conducting herself in a proper manner, and she must not have deserted her children {>•) . The wages, or part of them, may be forfeited on the following grounds : (1) desertion (.s) ; the rules and penalties relating to this offence being ^'ery severe ; (2) neglecting without reasonable cause to join the ship, or absence mthin tAventy-fom' hours of sailing from any port {t) ; ('3) quitting the ship after her arrival in port, before she is in a place of secu- rity (;i() ; (4) wilful disobedience (v) ; (5) wilful neglect (?r) ; (6) embezzlement, or doing wilful damage (x) ; (7) smuggling, involving loss to the owner {>/). In the case of desertion, he may have to forfeit all his wages, in other cases a certain amount only, varjdng with the circumstances. Duties. — The duties of a seaman are to join his vessel and to do his proper work upon it until the termination of his agreement, and he must obey his superior officers, though the command be given in a (p) Sect. 171. {!') Sect. 243 (3). {q) Sect. 168. (r) Sect. 243 (4). (r) Sect. 169. (>c) Sect. 243 (5). (s) Sect. 243 (1). (r) Sect. 243 (8). {t) Sect. 243 (2). (y) Sect. 243 (9). 296 RULES RELATING TO PARTICl LAR CONTRACTS. rough or unmannerly way (c) . He must devote the whole of his time to his employer's service, and any agreement to pay extra for ordinary duties is void (fi). Termination of the Contract. This may hajipon in tlie various ways in -which a contract can ordinarily be tenninated, c. g., effluxion of time. Independently of tlie contract, a seaman is not liable to discharge unless his capacity is im- paired, or unless he has been guilty of any offence, in which case he may be tried before a naval Court (6), and may be condemned to discharge {c). If a ship is transf cri'ed to another OAMier out of the Queen's dominions, the seaman may regard the voyage at an end, and may demand his wages, a certificate of discharge, and a passage home, or he may, in wTiting made before a British consul, declare his intention of remaining witli the vessel (il). If a master for any cause finds it necessary to leave behind him any sailor belonging to his ship, he must obtain the sanction in writing of a superintendent or consul, and a certificate of the facts {e). Remedies. A seaman's remedies are by suit in the Queen's 13ench or Admiralty Divisions, or if the amount is under 150/., in the County Comi. He has a lien on (;) The Exeler, 2 Rob. 261. (a) Stilk V. Mei/rick, 2 Camp. 317. (6) As to its constitution, see sect. 260. (c) Sect. 263. [d) Sect. 205. \e) Sect. 207. SURETYSHir AND GUARANTEES. 297 the vessel, wliicli takes priority of that of a bottorary bond holder, and of the master. VIII. — SlRETYSHIP AND Q-UARANTEES. A guarantee may be defined as an engagement collateral to another, to answer for the default of a party to the first, or, to use the words of the Statute of Frauds, a '* promise to answer for the debt, default, or miscamage" of another. 1. The engagement to amount to a guarantee must be collateral, and whether it is so or no, will depend upon the general circumstances attending the for- mation of the contract. Thus, the follo^\ing are guarantees : A. sa}'s, if you will deliver your horse to J. E., I will see that it is re-deHvered safely (/) ; so, " if two come to a shop, and one buys, and the other to gain him credit promises the seller, if he does not pay you, lA\dll," this is a guarantee {g). 2. The guarantor must not himself have been liable on the original contract. 3. The original liability must not have become extinguished {h). Formation. The contract must be in writing, and signed by the party to be charged, or by his duly authorized agent (/) ; and at one time the consideration had to be set forth in the writing, but this is the case no longer since 19 & 20 Vict. c. 97. (/) Bh-hnij;- v. Barnell, 1 Sm. L. C. 326, Sth ed. (V) MaconjY. Scott, 5 Ex. 907, 914. [h) Goodman v. Chase, 1 B. & Aid. 297. (i) Statute of Frauds, sect. 4. See ante, p. 10. 298 IIULES RET-ATIXG TO PARTICTJLAR COXTllACTS. Liability of a Surety. His primary liability is to pay the whole deht or compensation on default hy his principal, but strictl}' witliin the terms of the contract. Thus, if a surety bind himself for the due fulfilment of his principal's duties in a certain ofHce, lie will b(^ bound to the ex- tent only of such things as are connected with such office (_/), And so if damage is caused by non-per- formance of the contract guaranteed, the surety'^ liability will be limited to the damage which properly results from that non-performance (/r). And if the guarantee be only for a limited period, an extension will not be easily implied ; when an appointment is made of a collector for one }"ear, and a guarantee is given to secure the proper perfomiance of duties, the sm-ety A\-ill not be liable beyond the year, even though the collector is re-appointed, unless a new contract is entered into (/). Upon the construction of the contracts there is sometimes a question whether or not the guarantee is continuing, /. r., whether it is intended to continue until re-called, or whether it is to be confined to a single instance. If A. guarantees B. to the extent of any goods he may purchase fi"om C, not exceeding 150/., he may mean to give a continuing security, provided that it never exceeds 150/., or he may intend to guarantee until B. has obtained 150/. worth of things, and then stop {/a). Each case (j) Bartktt v. The Att.-Gen., Park. 277. \k) IVarre v. Calvert, 7 A. & E. 157. \l) Feppin v. Cooper, 2 B. & Aid. 431. (w) See Mason v. Fritchard, 12 East, 227. SURETYSHIP AND GUARANTEES. 299 must be decided by itself {/>) ; the decisions are difficult to reconcile, and no definite rule can be drawn from them. Thus, in Allnutt v, Ashendcn (o), the agreement ran, " I hereby guarantee B.'s account with A. for A\ines and spirits to the amount of 100/." ; there was at the time when the guarantee was made, an account existing between A. and B., though at the time the amount due was less than 100/. ; held, a guarantee of the existing account only. But in Wood V. Priest ner (p), P. was indebted to W. for coals supplied on credit, and he desired to bu}' more ; his father gave the following guarantee : " In consideration of tlie credit given by W. to m}' son for coal supplied by them to him, I hereby hold myself responsible as a guarantee to them for tlie sum of 100/., and in default of his payment of any accounts due, I bind myself by this note to pay AV. whatever may be owing, to an amount not exceeding 100/." : held, a continuing guarantee. The amount of a sm-ety's liability, also, is fixed by the contract; sometimes a specified sum is payable as liquidated damages ; more generally the amount upon breach is determined as in the case of breach of a principal's contract. Guarantee to a Firm. — By the 4tli section of the Mercantile Law Amendment Act, 1856, it is pro- vided that no guarantee given either to or for a firm shall be binding on the guarantor, if a change shall have taken place in any one or more of the persons constituting the firm, unless it is the intention of tlie («) Wood V. Friestner, L. E. 2 Ex. G6, 282. (o) 5 M. & G. 392. {p) Ubi supra. .300 RULKS REl.ATING TO PAKTRULAK < ONTRACTS. parties that the guarantor sliouhl remain bound; and sueli intention ma}' be sho\vn by express stipulation or by implication (g). Rights of a Surety. In addition to the usual riglit of a contracting ]>arty, such as right to relief on the ground of fraud, or on tlie ground that conditions agreed upon have not been observed, the peculiar position of the surety gives him siieeial advantages. In the first place, the intended siu"ety is entitled to make inquiries as to all facts ^vhich might influence him in deciding wliether or no he will enter into the contract, and any fraudident concealment or material wilful misrepresentation will avoid it ; and the Courts are astute to find fraud wlien niisrei>resentation of any kind is shown {r) ; in fact, there is no duty to make disclosures, but there is a duty not to mislead an intending surety, and very little said which ought not to have been said, or ^■ery little omitted which ought to have been said, will avoid the contract («). When the guarantee has been given, the guarantor should be informed of all facts which happen subse- quently, and which may give liini a right to avoid the contract (f). If the undei-taking is to become surety jointly A\itli [q] The mere fact that the guarantee was for sums due on a current account is not ground on which to infer such intention. Mckhouse v. Hall, 34 L. J. Q. B. 141. (r) See Lee \. Jones, 17 C. B. N. S. 503. (a) Davies v. The London and Provincial Marine Insurance Co., 8 Ch. D. 469, {t) FhiUips V. FoxaU, L. R. 7 Q. B. 666, and judgment of Den- man, J., in Mayor of Durham \. Fowler, 22 Q. B. D. 394, 421. SURETYSHIP AND GUARANTEES. 301 another, and if that other refuses, the siu'ety who has already executed has a right to consider his liability at an end (?/). Further, the terms of the original contract must not be altered, nor, of coiu-se, can there be any material alteration in the guarantee itself without his consent (see below, under Discharge). The failui'e of the principal debtor to meet his engagement must not be brought about or facilitated by any act or default of the creditor. When the creditor fails to get satisfaction out of the principal debtor, and proceeds against the surety, the latter is entitled to call upon the creditor to prove his claim, and a previous judgment against, or ad- mission by, the debtor, is not conclusive as against the surety, who is entitled to have the case proved against liim just as though he were the principal debtor («'). Wlien he pays the debt he has the fol- lowing rights : — 1. To recover from the principal debtor all money he has paid on account of the guarantee, whether it be principal, interest, or costs. It is advisable to in- form the prineijial of intended pajTiient of the credi- tor's demand ; this enables a defence to be set up if such exists, and prevents difficulties which might otherwise arise when the surety demands his indem- nity from the principal. 2. To be placed in the position of the creditor as to all judgments, securities given by the debtor, and (m) Leaf V. Gibbs, 4 C. .& P. 466; Bonser v. Cox, 4 Beav. 379. As to release of a co-surety, see If'ard v. The National Bank of New Zealand, 8 App. Ca. 755. {v) Ex parte Young, Re Kitchin, 17 Ch. D. 668. 302 Rl l.l.S RELATING TO PARTICLLAR CONTRACTS. othov rights (tc). These may be used as against debtor or co-sm-eties equally, provided tliat the latter can be compelled to pay thereunder only the propor- tionate share to which they are liable. As regards securities, Hall, V.-C, in Forbes v. Jackson {x), said, "The surety is entitled to have all the secui'ities preserved for him, which were taken at the time of the suretyship, or, as I think it is now settled, subsequently . . . The principle is that the surety in effect bargains that the secmities which the creditor takes shall be for him, if and when he shall be called upon to make any payment, and it is the duty of the creditor to keep the securities intact, not to give them up or to burthen them with further advances." The creditor's priority, if he has any, passes also to the surety who pays the debt; e.g., a surety who paid a debt due to the Crown, was held entitled to the Oo"v\'n's priority, so far as concerns his indem- nity (y). By the 19 & 20 Vict. c. 97, s. 5, " every person who, being surety for the debt or duty of another, or being liable with another for any debt or duty, shall pay such debt or perform such dut}', shall be entitled to have assigned to him, or to a trustee for him, every judgment, specialty, or other secm'ity which shall be held by the creditor in respect of such debt or duty, {w) He may be put into a better position than that held by the surety. See {e. g.) Baddeij v. The Consolidated Bank, SI Ch. Div. 536. (.)■) 19 Ch. D. 615, 621 ; and see Xewton v. Chorlton, 10 Hare, 646 ; Lake v. Bridton, 8 D. M. & G. 441 ; Duncan % Co. v. North and South Wales Bank, 6 App. Ca. 1. (;/) In re Lord Churchill, 39 Ch. D. 174. SURETYSHIP AND GUARANTEES. 303 "whether such judgment, specialty, or other security shall or shall not be deemed at law to have been satisfied by the payment of the debt or performance of the duty ; and such person shall be entitled to stand in the place of the creditor, and to use all the remedies (~), and, if need be, and upon a proper indemnit}', to use the name of the creditor, in any action or other proceeding, at law or in equity, in order to obtain from the principal debtor, or any co-surety, co-contractor, or co-debtor, as the case may be, indemnification for the advances made and loss sustained by the person A\'ho shall have so paid such ■debt or performed such duty ; and such payment or performance so made by such surety shall not be pleadable in bar of such action or other proceeding "by him : provided always, that no co-surety, co-con- \ tractor, or co-debtor, shall be entitled to recover from any other co-surety, co-contractor, or co-debtor, by the means aforesaid, more than the just proj^ortion to •which, as between those parties themselves, such last- mentioned persons shall be justly liable." / 3. To indemnity from his co-sureties (r?) . If, owing to the default of a principal, the sm-eties become liable, all must contribute equally if each is a surety to an equal amount, otherwise they must contribute proportionately {b). Thus, if A., B. and C, are sureties for 1,200/., and A. pays the whole, he can claim 400/. from B. and 400/. from C, or, {:) If the surety has not obtained an actual assignment of the judgment, he may still have the advantage of this section. He McM>j», 33 Ch. D. 575. (a) Bering v. Lord Winchelsea, 1 Cox, 318. [b) Re Arcedeckne, 24 Ch. D. 709. 304 RULES RELATING TO PARTICULAR CONTRACTS. according to equitable rules, if C be insolvent A. can claim 600/. from B. (r). But a surety who has paid cannot claim from his co-surety imless he has paid more than liis proi^ortion of the debt remahiing due- at tlie time of such payment, even though the co- surety has so far paid nothing ; c. r/., S. and H. were co-sureties whose liability was limited to 1,000/. and costs; upon default of the principal, II. paid the creditor a demanded sum of 541/. 2s. hi., being half the amount still due on the bond, and claimed 270/. lis. O^d. from S. : /tehl he could not claim con- tribution (f/). Discharge of the Surety. The surety is entitled to discharge (1.) if there has been such concealment or misrepresentation as is above described ; (2.) if the creditor has altered the terms of the guarantee without the assent of the surety. " The true rule, in my opinion, is that if there is any agreement between the principals with reference to the contract guaranteed, the surety ought to be consulted, and that if he has not consented to the alteration, altliough in cases where it is without enquiry evident that the alteration is unsubstantial, and one which cannot be prejudicial to the surety, the sm-ety may not be discharged, yet, that, if it is not self evident that the alteration is unsubstantial, or one that cannot be prejudicial to tlie surety, the Court "will not, in an action against the surety, go into an enquiry into the effect of the alteration" (e). (c) Hayer v. Xelsoii, Vem. 456. {d) Ex parte Snoivdm, 17 Ch. D. 44. (c) Cotton, L. J., in Holme v. BnmskiU, 3 Q. B. D. 495. SURETYSHIP AND GUARANTEES. 305 A. gave B. a bond that C, B.'s tenant, should at a certain time re-deliver a flock of sheep on a farm in good condition ; pending the tenancy, B. and C. agreed that a certain field on the farm should he given up, and the remainder of the land be held at a reduced rental, but no notice of the agreement was given to A. ; the jury found that A. was not pre- judiced by the absence of notice ; but the Court of Appeal (Brett, L. J., dissenting) held that the ques- tion ought not to have been left to the jury, and that the surety was discharged ( /'). And see Polak v. Everett (g), where Quain, J., said, " The contract of the surety should not be altered without his consent, and the creditor should not undertake to alter the contract, and then to say, ' Although the contract has been altered, and I have put it out of my power to carry it out by a voluntary act, I now oifer you an equivalent.' " Giving time to the principal debtor is often varia- tion enough to release the surety; but ther e must b e a binding contract_ to_^ive time, not a mere for- be arance to enforc e ; and the time must be given to the principal, and not to a co-sui^ety. Lord Eldon, in Samuell v. Hoicarth [Ji) , said: "The rule is this, that if a creditor, without the consent of the surety, gives time to the principal debtor, by so doing he discharges the surety ; /. e., if time is given by virtue of positive contract between the creditor and prin- cipal, not where the creditor is merely inactive. (/) Holme V. JBmnskill, 3 Q. B. D. 495. Iff) 1 Q. B. D. 669 ; and see Boulthee v. Stubhs, 18 Ves. 20 : Vyntr v. Hopkins, 6 Jur. 889. {h) 3 Mer. 272, 278. M. X 'JOC RULES RELATING TO PARTICULAR CONTRACTS. And, in the case put, the surety is held to be dis- cliarged for this reason, because the creditor, by so gi^'ing time to the principal, has put it out of the power of the siu-ety to consider whether he will have recourse to his remedy against the principal debtor or not, and because he, in fact, cannot have the same remedy against the principal as he would have had under the original contract" (/). But in one case, sureties guaranteed that A. B. would pay certain money within the first fourteen days of August, September, and October ; when the August instal- ment became due, the creditor gave time for that : Jichl, that tliis released the sureties from liability on the August payment, but that they remained liable on tlie remaining amounts {j). 3. A further ground of discharge is the negli - gence o f the creditor in his dealing s with th e debtor, so that the surety's remedies are affected; also the misuse of securities for the debt held by him. For instance, A. lent money to B. and P. upon the secu- rity of certain goods and fixtures, and by the terms of the deed A. was entitled to enter on the hap- pening of certain circumstances. The deed required registration, but the creditor did not register, neither did he enter into possession when he became entitled to do so ; consequently, B. and P. becoming bank- rupt, the goods were lost, and the sureties were held discharged to the extent of the value of the goods {k). But mere passive acquiescence by the obligee in acts (0 And see Clarke v. Birley, 41 Ch. D. 422. (,/) Croydon Commercial Gas Co. v. Dickinson, 2 C. P. D. 46. [k) Wulff and another v. Jay, L. R, 7 Q. B. 756 ; and see Pearl V. Beacon, 1 Q. B. D. 669. SURETYSHIP AND GUAKANTEES. 307 which are contrary to the conditions of a bond, "svill not relieve the sureties. Thus, acquiescence in an irregular mode of accounting on the part of a col- lector whose honesty was not suspected, has been held not to relieve, though, had the servant's dis- honesty been known, the decision would have been in favour of the sureties (/). 4. The discharge of the principal is the discharge of the surety {in) ; but the creditor may discharge one sui'ety mthout releasing the other from his engagement, unless the effect of such discharge is to take away or to injuriously affect such surety's right to indemnity {it) ; and if the one surety became such on the faith of his being joined by the other, of course the discharge of the one acts as a release. 5. Death of a surety revokes a continuing gua- rantee, and his estate is not liable thereon for advances made subsequently to the death (o) ; but on a joint and several guarantee, the death of one sui-ety does not release his co-sureties (p). {I) Mayor of Durham v. Folder, 22 Q. B. D, 394, where all the cases are cousidered ; and see Black v. The Ottoman Banh, 6 L. T. N. S. 763. {)n) Unless the discharg'e be with reservation of rights as against him. (h) Ward v. The National Bank of Kew Zealand, 8 A^jp. Ca. 755. (o) Coulthart v. Clementson, 5 Q. B. D. 42. \p) Beckett v. Addymau, 9 Q. B. D. 783. x2 ( 308 ) Part III. MISCELLANEOUS. I. PA^^^■ ; Mortgage; and Liex. This Cliapter deals Avith rights more or less similar, but really distinct. In each case some person acquires rights over the property of another, and this, not with the intention of retaining them, but of sun'endering them, when certain liabilities are satisfied. At the same time, the distinction in the relationships produced is well marked in each case. In a pawn, the possession of the property passes, but not the ownership ; and, eventually, a right to sell accrues. In mortgage, the legal owTiership resides in the creditor, the possession, until default, remaining to the original o"«^ler. In lien, the pos- session is with the creditor, the ownership with the debtor, but there is no right of sale (o). Pawn. This is a delivery of goods by a debtor to his creditor, as security for a debt. Its effect is to (o) See notes to Coggs v. Bernard, 1 Sm. L. C. 199. PAWX, MORTGAGE, AND LIEN. 309 transfer possession and consequent rights, and there- fore the pawnee, and he only, can bring an action for the retm-n of the goods if they are taken from him (7;). There is an implied undertaking on the part of the pa-^\Tiee to return the article when the debt is paid, and the pawTior impliedly undertakes that it is his property (q). The pawnee must use ordinary diligence in his care of the pledge, but if, notwithstanding such diligence, it is lost, he incurs no liability. If then the goods be stolen, the pawnee must show that they were not lost for want of what an ordinary prudent man would have done to ensm-e their safety ; if they are taken by robbery, he is never bound to replace them {)') . He must not use them unless they are such as will not deteriorate by wear, and even in such a case he uses them at his peril («) . He obtains a power of sale when default is made in payment of the debt at the stipulated time ; or if no time is stipulated, then after a proper demand for payment has been made, and a reasonable time for performance has been allowed {t) . A pawnee loses his rights by parting with the possession of his pledge (ii), unless he shows an in- tention of retaining them when he surrenders it. Pledges given to pawTibrokers are subject to the provisions of the Pawnbrokers' Act (-^o & 36 Yict. e. 93). Amongst these may be noted — (a) that the {p) Williams' Personal Property, p. 34, Iq) Chitty's Contracts, p. 438. {r) Coggs v. Bernard, ubi supra, (s) Ibid. [t) Story's Bailments, § 309. (h) Notes to Coggs v. Bernard, ubi supra. 310 MrS( ELT.ANEOUS. Act applies to every loan under 10/. (r) ; (b) pawn- tickets must be given for the pledge (w) ; (c) every pledge is to be redeemable within twelve months and seven days (x) ; (d) pledges above ten sliillings in value, not redeemed, are to be sold by auction, and those under that value are to be forfeited (//) ; (e) pledges over ten sliillings are redeemable till sale (s) ; (f ) special contracts may be made, subject to restrictions (a). There are, in addition, many provisions the object of which are to ensure that the right person gets back the pledge upon payment, and to restrain the commission of crimes. Mortgage of Personal Property. In this place it is intended to keep the remarks to be made on mortgages to such as affect personal pro- perty ; infonnation as to mortgages on real property should be sought in sitecial works on that subject, e.g., Fisher on Mortgages. The following is a good example of a mortgage of goods : " Assignment made to secure the payment of money at a future day, with a proviso that the debtor shall remain in possession of the goods until he shall make default in payment " (h). Bills of Sale. These are regulated by the Bills of Sale Acts, 1878 and 1882, and under the term "bill of sale" is included (r) Sect. 10. (to) Sect. 14. {x) Sect. 16. fy) Sects. 17, 19, (r) Sect. 18. ^ {a) Sect. 24. (b) Williams' Personal Property, p. 61. PAWN, MORTGAGE, AND LIEX. 311 not only bills of sale strictly so called, but also many other documents, including assignments, transfers, declarations of trust without transfer, inventories of goods with receipt thereto attached, assurances of personal chattels, licences to take possession of chattels as secmity for any debt, and also any agree- ment, whether intended or not to be followed by the execution of any other instrument, by which a right in equity to any personal chattels, or to any charge or security thereon, shall be conferred, &c. (c) . Also any agreements, except a mining lease, whereby a power of distress is given, or which reserves rent as interest, saving the rights of a mortgagee of lands abeady in possession, who demises to his tenant at a fair rent {d). But the term "bill of sale" will not include assignments for the benefit of creditors, marriage settlements, transfers of ships or shares therein, transfers of goods in the ordinary course of trade, documents used in the course of trade or business as proof of the possession and control of goods, nor assignments of fixtures, unless separately assigned [e) . Yerbal contracts are not within the Acts, which strike at docmnents and not at transactions ; nor is any document which is merely ancillary and is not necessary to give the transferee a title ; and when goods have already passed out of the apparent possession {e) of the transferor, the documents evi- dencing the transaction are not bills of sale; as (c) Sect. 4 of the Act of 1878. {(l) Sect. 6. Hall v. Comfort, IS Q. B. D. 11 ; Ex parte Koined,/, 21 Q. B. D. 384. {() Sect. 4. 312 MISCELLANEOUS. Cotton, L.J., said, in Marsden v. Meadows {g) , the documents must be "documents on which the title of the transferee of the goods depends, either as tlie actual transfer of the property, or an agreement to transfer, or as a muniment or document of title taken, to use an expression found in some of the cases, at the time as a record of the transaction." Bills of sale are of two kinds (i) absolute, such as pass the property absolutely to the transferee ; (ii) coiidifioi/a/, such as pass it subject to a condition revesting it upon the performance of the condition, viz., upon the payment of money. Meqin's/fe.s and FoDiialitios. — 1. Tlio bill must be registered within seven days of execution. To the registrar must be presented (a) the original bill, with every schedule or inventory annexed to or referred to in it ; (b) a true copy of such bill and schedules ; (c) an affidaAdt verifying the execution and attestation, stating also the time of execution, and the names, addi'esses, and occupations of the grantor and of every attesting witness {It). 2. The bill must contain a statement of the consideration, and this must be substantially true ; of course, it must contain no mis-statement, but more, it should state nothing inaccurately (/). 3. The execution should be at- tested and the bill explained by a solicitor (though if ig) 7 Q. B. D. 80 ; and see Ex parte Hubbard, 17 Q. B. D. 690 ; Xorth Central Wagon Co. v. The Lancashire, Sheffield and Yorkshire Jlnihi-a>i, 13 App. Ca. oo4 ; Hilton v. Tucktr, 39 Ch. D. 669; Tuchsbalq'' s case, 22 Q. B. D. 193. (h) Sects. 8, 10. (j) See In re Charing Cross Bank, 16 Ch. D. 35 ; Ex parte Eolfe, 19 Ch. D. 98 ; Ex parte Firth, 19 Ch. D. 419 ; Richardson v. Harris, 22 Q. B. D. 268. PAAVN, MORTGAGE, AND LIEN. 313 the bill be conditional, this is no longer required) (_/ ) . 4. If made with a defeasance {i.e., any agreement or condition which may enable the bill to be avoided), the defeasance must be set forth on the same paper which contains the bill ; and it must be contained in the registered eopy(A-). Thus, where a promissory note was given at the same time, and for the same consideration as the bill, payable by instalments, and there was a proviso that if the instalments became in arrear the whole debt might be claimed at once, it was held that this constituted a defeasance, and not being contained on the same paper as the bill, the latter was void (/). If the above requisites are not complied with, the bill of sale is void as against the following : (1) Trustee in bankruptcy ; (2) assignees for the benefit of creditors ; (3) those seizing under executions ; (4) all persons on whose behalf the goods have been thus seized (;//). Duphcate bills, given after the execution of a prior unregistered bill, are void ; unless the Court thinks that the second bill has been given bond fide, for the piu-pose of correcting some material defect in the prior bill {n). A bill of sale, when registered, takes its priority over others according to the date of registration (o) ; U) Sect. 10. {k) Sect. 10 (3). [I) Coimsell V. London and TTestminster Loan Co., 19 Q. B. D. 512. The note would be good, Monetary Advance Co. v. Cater, 20 Q. B. D. 785. (w) Sect. 8. (u) Sect. 9. (o) Sect. 10. 314 MISCELLAXEOUS. no transfer need be registered, but at the expiration of every five 3'ears re-registration is necessary (;>). The Act of 1882.— The above applies to all bills of sale, but by the Bills of Sale Amendment Act, 1882, provisions are made dealing with conditional bills, given on security for money only {q). The chief of these are as follows : Every bill of sale given by way of security for money is absolutely void, oven against the grantor, unless it complies with the following : 1. It must be made in accordance with the form in the schedule to the Act (>•) ; i.e., it must produce the same legal effect — neither more nor less than that form, and it must be so framed as not to deceive any reasonable person as to its exact meaning (.s). The form is as follows : — Form of the Bill of Sale. " Tliis Indenture, made the day of , be- tween A. B. of the one part and C. D. of the other part, Witnesseth that in consideration of the sum of £ now paid to A, B. by C. D., the receipt of which the said A. B. hereby acknowledges [or nltat- ever else the consideration maij be~\, he, the said A. B., doth hereby assign unto C. D., his executors, administrators, and assigns, all and singular the several chattels and things specifically described in the schedule hereto annexed by way of security for the pa}^nent of the sum of £ and interest thereon at {p) Sect. 11. {q) Sect. 3. (»•) Sect. 9. (s) Ex parte Stanford, 17 Q. B. D. 255; Thomas v. Kelly, 13 App. Ca. 506. PAWN, MORTGAGE, AND LIEN. 315 the rate of per cent, per annum \_or tcha fever eke may he the rati^. And the said A. B. doth fuiiher agree and declare that he will duly pay to the saidC. D. the principal sum aforesaid, together ^vith the interest then due by equal payments of £ on the day of [or tchatever eke may he the stipu- lated times or time for payment^ And the said A. B. doth also agree with the said C. D. that he will \_here insert terms as to insurance, payment of rent, or other- tcise, which the parties may agree to for the maintenance or defeasance of the security']. "Provided always, that the chattels hereby assigned shall not be liable to seizure or to be taken possession of by the said C. D. for any cause other than those specified in section 7 of the Bills of Sale Act (1878) Amendment Act, 1882. " In witness, &c. " Signed and sealed by the said A, B. in the presence of me, E. F. \_add uitness' name, address^ and description'].^^ Amongst the many decisions which have been recently given on the agreement or disagreement of bills with the above form may be noted : — Assignment of goods hereafter to be brought on the premises [t) ; conveyance of property by the grantor " as beneficial owner " [u] ; proviso enabling the grantee to retain the bill of sale after payment of the secured debt (r) ; proviso enabling the grantee to have the goods valued, and to purchase them himself at the valuation (?<•). {t) Thomas v. Kelli/, 13 App. Ca. 506. (m) E.r parte Stanford, ubl mipra. {v) Watson v. Strickland, 19 Q. B. D. 391. \ic) Lrjon v. Morris, 19 Q. B. D. 139. 316 MISCELLANEOUS. All these have been held to be a divergence from the authorized form, and to have an invalidating effect upon the bill. But an assignment of future book debts (.r) ; an agreement to replace worn out articles by new ones (y) ; a covenant for unequal repayment (s), have been held to be covenants not causing a material difference between the form of the bill in which they are contained and the form in the schedule. 2. It must be attested by one or more non- parties (zz). 3. It must be registered according to the provisions of the Act of 1878 (^). 4. The consideration, which nnist amount at least to 30/., must be truly set forth [b). Moreover, the bill of sale is void as against every- body but the grantor, if (i.) the bill comprises goods which are not included in the inventory in the schedule (r) ; (ii.) or if the schedule includes goods of Avhich the grantor is not the true owner (d). In the 7th section of the Act, the causes for which the goods may be seized are set forth. These are : — (a) If the grantor shall make default in payment of the sum or sums of money secured by the bill at the time therein provided for payment, or in the perform- ance of any covenant or agreement contained in the bill (x) Tailby v. The Official Receiver, 17 Q. B. D. 88 ; 13 App. Ca. 523. [y) Consolidated Mortgage and Credit Co. v. Gosney, 16 Q. B. D. 24. (;) In re Cleaver, 18 Q. B. D. 489. {zz) Sect. 10. (a) Sect, o ; and see ante, -p. 312. {b) Sect. 12 ; and see ante, p. 312 ; Sharp v. McHenry, 38 Ch. D. 427. (c) Sect. 4 ; Witt v. Banner, 20 Q. B. D. 114. {d) Sect. 5 ; Thomas v. Kelly, ubi supra. PAWN, MORTGAGE, AND LIEN. 317 of sale, and necessary for maintaining the security : (b) If the grantor shall become a bankrupt or suffer the said goods, or any of them, to be distrained for rent, rates, or taxes : (c) If the grantor shall fraudu- lently either remove, or suffer the said goods or any of them to be removed, from the premises : (d) If the grantor shall not, without reasonable excuse, upon demand in writing by the grantee, produce to him his last receijits for rent, rates and taxes : (e) If execution shall have been levied against the goods of the grantor under any judgment at law. But the grantor may within five days from the seizm-e apply to a judge of the High Comi; and the judge may, if he is satisfied that the cause of seizure no longer exists, restrain the sale of the chattels, or may make any other order that seems good to him. Lien. A Hen is the right of a person who has possession of goods which belong to another, to retain them until the debt due to him has been paid {e) . There are two kinds : — 1. Particular Lien. — This is a right to retain the particular goods in connection with which the debt arose ; e. g., a carrier may retain goods given to him for carriage until payment of the price ; an innkeeper may retain his guest's goods. A particular lien may arise out of express agreement or by implication ; and the law will give an implied lien over goods which a person is compelled to receive; e.g., to an innkeejjer over guests' luggage ; or on goods. And when the debt has been incurred for labour or skill [e) See Smith's Mercantile Law, 191. 318 MISCELLANEOUS. upon a particular thing, the creditor has an implied lien upon that thing for his reward (/) ; e.g.^ a ship^vl'ight has a lien on a vessel for the cost of repairs. Amongst other cases of particular lien may be mentioned the lien of the salvor {g), and the lien of the sliipowner for freight (//). 2. Gciicntl Licii may arise from custom or contract ; and it is a right of retaining goods not only for the debt incm-red for work done, but for a general accoimt owing by then- owner. Amongst trades or professions which have tliis lien may be mentioned factors (/), bankers (./), and solicitors [k), the latter being entitled to retain the papers (including title deeds) of their clients, so long as the client lias an interest in them. Lien gives no right to sale, nor in fact any right, except such as belongs to a possessor merely, as distinguished from an owner. It is lost by payment of or taking security for the debt (/), and by surrender of possession {ii/). II. Shipping. A book of Mercantile Law, however elementary, cannot be complete without some reference to the law of shipping; but only tlie merest outline can be at- tempted on the present occasion, and this ■svdll refer to (/) Ex parte Ockenden, 1 Atk. 235. {g) Fost, p. 329. \h) 25 & 26 Vict. c. 63, ss. 66 et seq. (t) CoiccUv. Simpson, 16 Ves. 280. U) Davis V. Bnivsher, 5 T. R. 488. (h) Ex parte Sterling, 16 Ves. 255. (/) Coirell V. Simpson, ttbi supra. («j) Krugery. TFilcox, Amb. 251. SHIPPING. 319 British ships alone. Fuller information should be sought in Abbott and Maelaehlan,and in the joint work of the late Mr. Maude and Baron Pollock. The main bulk of the law, however, is to be found in the Mer- chant Shipping Acts, 1854 — 1859. A British ship is one which has been registered as such, and is owned by those entitled by law to hold a British ship. These are (;?) : 1. Xatural-born British subjects, who have never taken an oath of allegiance to a foreign government ; or who, if they have so done, have taken a subsequent oath to the English sovereign, and whilst owners remain residents in the Queen's dominions, or are members of some British factory, or ■partners in a house actually carrying on business in the Queen's dominions. 2. NaturaUzed persons, or denizens by letters of denization, and who have taken the oath subsequent to naturalization, and are resident as above. 3. Bodies corporate, established imder, and subject to the laws of, and having their principal place of business in the United Kingdom, or some British possession. Regktration. — With certain exceptions, every British ship, not registered before the Act of 1854 came into oj)eration, must be registered [o). Previous to such registration these requisites must be satisfied : the name of the ship (/;) must be painted conspicuously on the bows, and her name and the name of the port on the stem ; the official number and tonnage must be cut on the main beam, and a scale of feet denoting («) 17 & 18 Vict. c. 104, s. 18. (o) Ibid., s. 19. [p) As to change of name, see 34 & 35 Vict. c. 110, s. G. 320 MISCELLANEOUS. the draught in red letters must be painted on the stem and stem posts {q). A certificate of survey must be produced, giving the tonnage and build of the vessel, and generally identifying her (/•) ; also on the occasion of the first registry, a bi(ildcr\s certificate (.s), giving particulars as to the build and tonnage of the sliip, and of the sale of the vessel to the person desiring to be registered as owner. The owner must then make a declaration, stating his qualifications ; the number of sliares he holds in the ship ; a denial that, so far as he knows, any unqualified person is entitled to any interest in her ; and the name of the master, and the time and place of build (t). A body corporate makes this declaration through its secretary or other proper officer {ii). Application for registration should be made by the owners or some of them, or by their duly authorized agent (r) ; and the registration is then perfomied by the principal oflBcer of customs of the port, if it be in the United Kingdom, or by certain specified officers if it be in the colonies {ic) . An entry is made in the register book {x), and a certificate of registry is given, wliieh must contain details similar to those required in the certificates supplied by the owner. The cer- tificate may, if lost, be renewed (v/); and it may not be detained for any lien or other such purpose — it is for use in navigation only {z). If the ownership changes hands, an indorsement to this effect must be placed on the certificate {q) 36 & 37 Vict. c. 85, s. 3. (j) Ibid. s. 35. (r) 17 & 18 Vict. c. 104, s. 36. [ic) Ibid. s. 30. (s) Ibid. s. 40. (x) Ibid. s. 42. \t) Ibid. s. 38. (y) Ibid. s. 48. (m) See ante, p. 36. (z) Ibid. 8. 50. SHIPPING. 321 at the port of registry {a) if the vessel is there, if not, on her first amval; or under certain circum- stances it is made at an intermediate port (b). Properti/ in a British Sltip. — The property in a British ship is divided into sixty-four shares, and no more than sixty-four persons may he registered at the same time as owners of one ship. But any share may be held in joint ownership, and the joint owners, not exceeding five in number, may be registered, and any number of persons may have a beneficial title in a single share, the registered owner representing them ; also a company may hold a share or shares through a registered owner, and may be registered by their cor- porate name. No person may be registered as owner of a fractional share (f). Acquisifioi/ of a British Ship, — A ship may be ac- quired either by sale, by sale after mortgage, or by operation of law. Sale will pass the ship if the professing owner is in a position to give a good title, and if the proper formalities are observed. The method of passing the property is by bill of sale, which must be in the form set forth in the Act of 1854, must be executed before witnesses, and must contain an identifying description, generally the same as is contained in the surveyor's certificate (f/). The transferee must make a decla- ration stating that he is in a position to hold a British ship (e). The bill of sale and the declaration are then (a) I. e., the port where the vessel was originally registered. (6) Sect. 45. (c) Sect. 37. {d) Sect. 55. {e) Sect. 56. M. Y 322 MISCELLANEOUS. producecl to the registrar, and the transaction is recorded in the register hook, and a statement of the entry indorsed upon the hill of sale itself. Mortgage. — This also must be in the proper form, and must, upon the production of the necessary in- struments, he recorded by the registrar (/;, Upon the order in which it stands in the register book, will depend its priority (r/), and though an imregistered mortgage is not void, it will be deferred to those which are {h). It must be noted that the mortgage will not trans- fer the ownership of the vessel (/), but subject to lights of prior mortgagees, it confei-s a power of sale {j) on non-payment of the debt. When a mortgage is discharged, the evidence should be produced to the registrar, and an entry recording the matter nuist be made by him in his book (A-). Any transfer of the mortgage must also be entered by the registrar, whether such transfer be by indorsement or otherwise (/). Difficulties would arise in selling or mortgaging ships which, at the time, are out of the coimtry where the port of registry is situated. To obviate these, the Act of 1854 gives power to registrars to give certificates of sale or mortgage enabling certain persons to sell or mortgage the ship wherever she may be, but in accordance with the conditions of the certificate. The owner must inform the registrar (i) who is to exercise the power; (ii) the minimum price of sale, if a minimum is to be fixed ; (iii) the (/) Sect. 66. (ff) Sect. 69. (/<) £t'll V. £li/th, L. K. 6 Eq. 201. (0 Sect. 70. U) Sect. 71. (A-) Sect. 65. (/) Sect. 73. SHIPPING. 32'] place, if known, where the power is intended to be ■exercised; (iv) the time witliin which it is to be exercised. These paiiieulars are to be entered into the registrar's book {m). The power is not to be used in the United Kingdom, nor in any British possession, if the port of registry is situated within it (n). The certificates must be in the presciibed form (o). In sect. 81, rules are laid do"svn to be observed with respect to certificates of sale, amongst which is this, that no certificate can be granted, except for the sale of an entire ship. Sect. 80 sets forth the rules relating to certificates of mortgage, but these may be so given as to allow of the mort- gage of a share in a vessel (jj). Ccqiture. — When a vessel is taken by an enemy in time of war, and is condemned by a competent Court, the property in her j)asses according to the Naval Prize Act, 1864. Ship's papers. — A ship must caiTy the proper papers, and is bound to show them to any naval officer, officer of the Board of Trade, chief officer of customs, mercantile marine office superintendent, British consular officer, or registrar-general of sea- men (q). Those usually carried are : (1) the certificate of registry; (2) the agreement wath the seamen; (3) the charter-party and the bill of lading ; (4) the bill of health ; (5) invoices containing the particulars of the (in) Sects. 76, 77. («) Sect. 78. (o) Sect. 79. (p) See Maude and Pollock, p. 63. Iq) Act of 1854, s. 13. y2 324 MISCELLANEOUS. cargo ; {(>) tlie log book. Tliis latter is the journal of the ship, and contains, amongst other things, the following entries : a statement as to the draught, and as to tlie deck and load lines of the vessel {r) ; every offence and punishment committed hy or inflicted on any of the crew ; every marriage, birth, or death happening during the voyage ; any collision with other vessels, &c. These entries must be signed by the master, and by the mate, or by some other of the crew (.9). Duties of fJtc oiotcr. — The owner's principal duty is to see that the vessel is seaworthy at the start, and to ensure, so far as is possible, that she will remain so {t), and if he becomes acquainted with any dam- age tending to render the vessel unsafe after the commencement of the voyage, there is a duty thrown upon him to repair it {11). He must appoint a proper master and crew, with a view to the general safety ; therefore, a contract to sell a vessel, one condition being the appointment of a particular person as master, was held illegal (r). He is liable at common law for the safety of all goods delivered to him, to an extent equal to that of a common carrier ; but by the Merchant Shipping Act, 1854^ sect. 503, the owners of sea-going shij^s are not liable unless the damage is caused by their actual fault in these cases, (a) when an}' goods or other (r) Merchant Shipping Act, 1862, s. 26. (s) Merchant Shipping Act, 1854, s. 283. {t) See a>ite, under Marine Insurance, and as to unseaworthy ships, Merchant Shipping Act, 1876, ss. 4, 5. (m) Wonns V. Start), 11 Ex. 427. {v) Card v. Hope, 2 B. & C. 674. SHIPPING. 325 things taken or put on board are damaged by reason of any fire happening on board ; (b) when gold, silver, diamonds, watches, jewels or precious stones are taken and put on board, and are then embezzled or stolen. But the liability on this head will remain if the shipper declares in ^vTiting to the master or owner the value of these things {ic). The shipowner must pay wages to both master :and crew, and they have a maritime lien, which takes precedence of a mortgage {x). Co-oioiers are not of necessity partners, but in many cases are tenants in common, and it depends upon all the circumstances taken together, whether they are the one or the other. If merely tenants in •common, each may transfer his share without con- sulting the others. They are not, in the absence of ■contract, agents for one another (y) , nor do they bind «ach other by admissions. Disputes fi'equently arise between co-owners as to the destination and details of an intended voyage. These are settled in the Admii-alty Division of tlie High Court, which has jm-isdiction in disputes con- oeming possession, earnings, &c. (~), If the majority of owners desire to send the vessel on a particular voyage, but this is objected to by the minority, the •Court will, at the instance of the latter, arrest the vessel till the majority have entered into a bond to ^xn amount equivalent to the value of the shares held («■) See ante, p. 273. (.;•) See ante, p. 296. (y) It is not unusual to appoint one part owner as manager. He is called the " sldp's husband." (z) The Judicature Acts. 326 MISCELLANEOl'S. by the minority, to return the vessel safe, and to- answer judgment in an action (h). Each o■w^ler must contribute his sliare of capital for the expenses of outfit, and he must pay his quota towards the expense of repair ; further, he is liable for the expenses of management incun-ed by the ship's husband, if there be one appointed. The Made)'. — The master (who must be a properly qualified person (c)) must start on the voyage in time, and must take care to have a proper crew and equipment. He should manage the vessel, and navigate her in the agreed upon manner ; employ- ing a pilot, where such is the custom of the port. ]'Ie must keep an official log, and this, with the ship's papers, ho must guard and show to the proper officer when required to do so. He is, of course, answerable for any fraudulent or illegal conduct of which he is guilty (such conduct being, in his case, styled harratri/) . He must take the cargo as quickly as possible, must store it properly, and must sign the bill of lading for all he has taken on board (d). This, on arrival at the destination, he should deliver to the proper person, subject to liis lien for freight (e). Among his jiowers are : (1) hjqiothecation, to raise money for necessary purposes (/) ; (2) sale, where this com^se is highly advantageous and com- raimication -v\ith the owner difficult ; (3) tranship- (b) In re Blanchard, 2 B. & C. 248. \e) Merchant Shippiiig Act, 1854, s. 132. {(l) See (i)ite, pp. 284, 285. (V) Ante, p. 288. (/■) See next page. SHIPPING. 327 ment, in cases wliere it is desirable in the interest of his owners ; (4) disciplinary powers over those on board the vessel; (5) jettison, i.e., throwing goods ctverboard to lighten the ship. Botfo)invj. — When it is desired to raise money npon the ship, or upon the ship and cargo, a written instru- ment (sometimes sealed) is executed by the master, binding him to repay the money within a limited time of arrival safe at home, and in the meantime assign- ing the ship, cargo, and freight, as seciu-ity. This instrument is called a hotto)nru bond{(j). No par- ticular form is recpiired. It is an essential characteristic of the contract, that the repayment of the money advanced should be dependent upon the safe arrival at the ship's port of destination, and a deed making the loan repayable in any event, w^ould be invalid ; but there seems to be no objection to a collateral agreement making the owner personally liable (//) . Interest may be reserved, but if none is expressly charged, the Court will allow it at the rate of four per cent. The effect of the bond is to give the bond-holder a claim upon the vessel, which he may enforce by a suit in rem in the Admiralty Division of the High Com-t. The bottomry bond-holder's claim is pre- ferential to that of a mortgagee, but is postponed to a claim on account of wages, or of subsequent salvage ; but a master who has bound himself on the bond, cannot set up his claim for wages in priority (g) The Mary Ann, L. R. 1 A. & E. 14 ; Maude and Pollock, pp. 560, 562, where a form of the bond is set out. (A) WilUs V. Fahner, 7 C. B. N, S. 360. , 328 MTSCELI.AXEOUS. to the bond-holder (/). Bond-holders inter -se do not rank in order of priority ; on the contrary, the holder of the last given bond ranks first, and so on up- wards (./ ). The hypothecation may be made by the owner, and under the following circumstances by the master ; viz., wlien it is a matter of necessity to raise the money on the secui'ity of the vessel ; for " necessity is the very foundation of tliis right "(/.). But before pledging the ship, the master must do his best to raise money upon credit, and though i>revious communication witli the owners is not a xinc qua non, yet it is necessary where possible (/). Whether or no such necessity exists as to warrant the raising of money by hyiiothecation, is a matter on wliicli the [lender is bound to make inqmiies, but "all that the lender of bottomry has to look to is — that the ship is i in distress ; that the master has no credit ; that the .amount is required for necessary purposes " (;>/). And the bond must be given for money advanced for the ship, i\(/., not for a personal debt of the master, nor for matters outside the scope of his authority ; and there must be, at the time, an inten- tion to raise the money on bottomry; i.e., a trans- action not intended to be a bottomiy bond cannot be made such hereafter {)/). (t) The Jonathan Goodhue^ Swa. 524. Under exceptional cir- cumstances this has been allowed, 'llie Edxvard Oliver, L. R. 1 A. & E. 379. {j) See Maude and Pollock, pp. 8G, 575, 576. [k) Ibid. p. 566. (/) See The Karnal; L. R. 2 A. & E. 254. (/«) The Mary Ann, L. R. 1 A. & E. H. \n) See The Karmk, L. R. 2 A. & E. 301 ; The Augusta, 1 Dods. 287. SHIPPING. 329 The cargo may be hypothecated either for its own direct benefit, or for the benefit of the vessel generally, provided that the cargo receives some appreciable benefit from the transaction (o) ; but the owner of the cargo is entitled to indemnity from the ship's owner in the event of loss occm:-ring {j)). ^Tien the cargo alone is hypothecated, the bond given is often termed a respondentia bond, but the term bottomry bond is used also in such a case. Salvage. — This is a reward allowed to persons who .save a ship, cargo, or the lives of those in ships from shipwreck, captiu-e, or similar jeopardy {q). To support the claim the salvor must show : (1) that he was imder no contract to perform the work ; (2) that notwithstanding this he did it; (3) that there was skill and peril, and some enterprise shown in the performance ; (4) that the ser\ices were beneficial. The salvor has a maritime lien upon the property saved, the hen ranking first, above all other liens which have already previously attached to the pro- perty. For further infonnation regarding this subject, see the Merchant Shipping Acts, 1854, Part YIII., and 1862, sects. 45 to 53, and Maude and Pollock on ♦Shipping, Chapter X. III. The Law of Bankruptcy. The earhest bankruptcy statutes date back to the time of Henry YIII. (in 1543), and there are others {o) The GratititcUnc, 3 Rob. 261. {p) JJuncun V. Benson, 3 Ex. 644. [q) Merchant Shipping Act, 1854, s. 458. 330 MISCELLANEOUS. of the time of Elizabeth and James I. In 1825, a consoliclatoiy Act was passed, and in 1849, the law was again revised. Pre^-ious to 18G1, the advan- tages of bankruptcy belonged only to those who came under the category of traders, but in an Act of that year, non-traders were included. In 1869, a more complete statute ^^•as passed, which went by the name of the Bankruptcy Act, 1869, and imtil 1st January, 1884, this was the Act regulating this branch of the law. On tliis last-mentioned date, the present JBanlcniptc// Act, 1883 {a), came into force, and though bankruptcies which commenced before the 1st January, 1884, -will still be governed by the Act of 1869, yet the the Bankruptcy Closure Act,. 1887 (/>), has, for all practical purposes, dealt with such as these. In tlie future part of tliis chapter, tlierefore, the Act of 1883 wiU alone be considered. WJio )tHui he n/adc haxhnipf. — (i) Infants may per- haps be made bankiiipts, if the debts on which the bankruptcies were founded were incurred for neces- saries, but the point is not fi'ee from doubt (r) . (ii) Married women can be made bankrupt if they are trading apart from tlieir husbands but not other- wise, even if they are possessed of separate pro- perty {d). (iii) Aliens are included in the Act, if either (a) they are domiciled in England ; or (b) have ordinarily resided in, or have had a dwel- ling-house or place of business in, England, within («) 46 & 47 Vict. c. 52. {b) 50 & 51 Vict. c. 66. {<•) Ante, p. 28 ; and see Williams on Bankruptcy, p. 3. {d) In re Gardiner, 20 Q. B. D. 249 ; 45 & 46 Vict. c. 75. THE LAW OF BAXKRUPTCY. 331 a year before the presentation of tlie petition (r). (iv) Lunatics cannot commit an act of bankruptcy involving intent, e. g., fraudulent preference, other- wise it seems that they may be made bankrupt (/). (v) Convicts ma}' be adjudicated, even after con- viction, (vi) A partnership may be made bankrupt, unless it. is registered under the Companies Act, 1862 (g). (vii) A deceased person is not made bankrupt, but a special procedm-e applies, and this results very much in the same thing {/i). (viii) A joint stock company cannot be made bankrupt, but it may be wound up under the Companies Acts («") . To make a person bankrupt, it is necessary that a banki'uptcy petition should be presented either by the debtor or by a creditor, and, in accordance with this petition, that a receiving order should be made. This will not be done unless an act of bankruptcy has been committed by the debtor. Acts of banknij)tc// (J). — (a) "If in England or elsewhere he makes a conveyance or assignment of his property to a trustee or trustees for the benefit of his creditors generally." An assignment to one or more jmiiicular creditors wiU not be an act of bankruptcy, unless it amounts to a fraud upon the others; the act of bankruptcy here meant is a conveyance of all a debtor's property to the trustee, who is to represent all the creditors ; (e) B. A. s. 6 (d). (/) Williams on Bankruptcy, p. 5. Where it is for the lunatic's benefit, see In re James, 12 Q. B. D. 332. {g) See 25 & 26 Vict. c. 89, s. 199 ; and B. A. s. 123. (/*) See later p. 370. (i) See s. 123 ; and 25 & 26 Vict. c. 89, s. 199. (/) B. A. 1883, s. 4. 332 MISCELLANEOUS. in fact, it renders a composition or scheme of whicli such a transfer is a part, an act sufficient to found a petition. (b) "If in England or elsewhere he makes a fraudulent conveyance, gift, delivery, or transfer of his property, or any part thereof." (c) " If in England or elsewhere he makes any conveyance or transfer of his i)roperty or any part thereof, or creates any charge thereon which woidd under this or any other Act be void as a fraudulent preference if he were adjudged banki-upt." It should be noted that in botli tliese sub-sections the frauilulent conveyance is the cause of its being made an act of bankruptcy ; a bond fide conveyance or gift may be set aside, but it will not ground a jietition. (d) " If with intent to defeat or delay his credi- tors he does any of the following things, viz., departs out of England, or being out of England remains out of England, or departs from his dwelling-house, or otherwise absents himself, or begins to keep house." In this ease there must be an intention to delay or hinder his creditors ; a mere staying at home, or going abroad, though in fact followed by delay in payment, cannot be an act of bankruptcy {k) ; but, of coui'se, all the cii-cumstances will be looked to, and the Court will find the intention, when existent, from the facts. (e) " If execution issued against him has been levied by seizure and sale of his goods under process (A) Ux parte JSrandM, 25 Ch. D. 500. THE LAW OF KANKRVPTCY. 333 in any action in any Court, or in any civil proceeding in the High Court." (f) '* If he files in the Com-t a declaration of his inability to pay his debts or presents a bankruptcy petition against himself." (g) " If a creditor has obtained a final judgment [l] against him for any amount, and execution thereon not h aving been stayed, has served on him in England, or, by leave of the Court, elsewhere, a bankruptcy notice under this Act, requiring him to pay the judg- ment debt in accordance with the terms of the judg- ment, or to secure or compound for it to the satisfaction of the creditor or the Court, and he does not, within seven days after service of the notice, in case the ser- vice is effected in England, and in case the ser\dce is effected elsewhere, then within the time limited in that behalf by the order gi'V'ing leave to effect the service, either comply with the requirements of the notice {)/>), or satisfy the Court that he has a counter- claim, set-off or cross-demand which equals or exceeds the amoimt of the judgment debt, and which he could not set up in the action in which the judgment was obtained." This sub-section replaces the debtor's summons procedure of the Act of 1869 {)i). It should be noted that the judgment debt may be of any amount, and that there are but three ways of defeating the (/) A garnishee order absolute is not a "final judgTaent " against him within this statute. £x parte Chinery, 12 Q. B. D. 342. [m) If the debtor gives a promissory note, which is accepted, though conditionally, the creditor cannot get a receiving order on the notice. Ex parte Matthew, 12 Q. B. D. 506. (w) See Williams' Bankruptcy. 334 MISCELLANEOUS. notice ; (i) pay ; (ii) give satisfactory security ; (iii) show a cross-claim which there was no previous opportunity of setting up. The notice may he sent hy post (o). As to the form of it, see Bankruptcy Rules, 1886, Form 6. (h) " If the tlehtor gives notice (p) to any of his creditors that he has sus])ended, or that lie is about to suspend, paj-ment of his debts." There is one case in which a receiving order may be made, though none of the above have been com- mitted, \iz. : wlien under the Debtors Act, 1869, s. 0, a Court having bankruptcy jurisdiction is asked to commit a judgment debtor, the Com't may, with the consent of the judgment creditor, instead of com- mitting the debtor, make a recei^ing order against him. 1. Procedure. T/ic Petition (q). — Tliis may be presented either by the debtor orby a creditor, or by several creditors jointly. If creditors petition, the following are requisites {r) : (i) the debt due to him or to them jointly (if more than one join in the petition) must amount to -30/. ; (ii) it must be liquidated and due at once or at a future cei-tain time ; (iii) the act of bankruptcy on which it is founded must have occuiTed -vvithin three months previous to the presentation of the petition ; (iv) the debtor must be one liable to be made bank- Co) B. A. s. 142. (p) This notice need not be in -vrriting, if there is a clear inten- tion to give it. In re Tf'alker, 13 Q. B.^D. 469 ; In re Fricdlandery 13 Q. B. D. 471. (y) Form 10, Eules 1886. {)■) B. A. s. 6. THE LA"\V OF BANKRUPTCY. 33-3 Tupt (s) ; (v) if tlie creditor is secured, lie must be prepared to surrender his seciuity, or he must be at least 50/. to the bad after deducting from his debt the estimated value of it. If the petition is that of the debtor, he must allege in it his inability to pay his debts. T\Tioever presents the petition must pay the stamp and give a deposit (t), and all costs up to the date of the receiving order ; these, however, may be recovered in their proper priority from the estate (a). The place of presentation is (a) the High Court of Justice, where the debtor has carried on business or has resided in the London district during the greater part of the six months before the presentation of the petition, or when he has resided there longer than anywhere else diuing those six months, or when he is resident abroad, or when his residence cannot be found ; (b) in a County Coiu't within whose jm-is- diction the debtor has carried on business during the greater part of the said six months {v). Proceedings on the Petition (ic). — If it is presented Ity the debtor, the Court will make a receiving order ; if by a creditor, an affidavit must be filed verifying the facts stated ; then the petition will be heard after an interval of eight days at least from the date of ■ service, and it may be dismissed, or a receiving order may be made, or proceedings may be stayed (.r), according as the Court thinks fit. If there ai-e several debtors, the petition may be dismissed as against one («) See ante, p. 330. {t) The total amount is about 10/. {u) Post. (i') B. A. ss. 9-5, 96. As to transfers, see sect. 97 {u) Sect. 7. {x) Sect. 109. 336 MISCELLANEOUS. or more alone {>/). If there are several petitions against one debtor, these may be consolidated (~), or some may be dismissed upon such terms as may seem right {a) . If a creditor who has the conduct of the proceedings is dilatory, a new petitioner may be sub- stituted (b) . AVhen a petition has been presented either by the debtor or a creditor, it may not be withdrawn without the leave of the Court (c) . The Rcceiring Order. — Tliis ma}- be made at any time after the presentation of the petition, but, in the case of a creditor's petition, after the hearing. It should specify the act of bankruptcy (^O^ and should be advertised in the Loudon Gazette and in a local paper {e). The effect of this order is to vest all the debtor's property in the official receiver — an officer ap- pointed by the Board of Trade (see later) — and to take away from creditors all remedies against the debtor, except from (a) secured creditors (,/') ; (b) creditors whose debts are not provable in bank- ruptcy (/). Property not di visible (a). — (a) Tools of a bank- rupt's trade, and the necessary wearing apparel and bedding for himself, his wife and children, to a valu(% all included, of not more than 20/. (b) Pro- perty held on trust for others, if it can be distin- guished from the bidk of the bankrui)t'8 o^^'n pro- ! perty, /. c, if it is earmarked. Thus, money paid I generally into his account cannot be separated, but , specific stock can. (c) The right of presentation to an ecclesiastical benefice. In addition to the above, which are specially mentioned in the Act, we may add, (d) Propert}'' which legally divests from the bankrupt on his bankruptcy, c. y., estate to X. until banki'uptcy, and then to Y. ; but such a defeazance is very strictly construed, (e) The benefit of con- tracts requiring the personal skill of the bankrupt {e. (J., to sing). In tliis case, if the bankrupt elects (0 See Cohmial BanJcY. TT/iiunei/, 11 App. Ca. 426. {)») Furniture in an ordinary house is within the disposition of the bankrupt {Ex parte Brooks, 23 Ch. D. 251) ; not so the furni- ture in hotels, for here it is well known that it is generally on hire. In re Barker, 14 Q. B. D. 636. («) Sect. 43 ; and for a consideration of the doctrine of relation, see Sharp v. McHenry, 38 Ch. D. 427 ; Ex parte McDermott, 21 Q. B. D. 580. resentation of a petition, he must hand over the goods to the trustee or official receiver on request. But a bond fide purchaser at a sale by a sheriff does not fail to acquire a good title against the trustee. (b) Setthnnejit {x). — If more than ten years has elapsed from the making of the settlement, it is unimpeachable. If less than ten years but more than two have elapsed, the settlement is bad, unless those claiming under it show (a) that the settlor was solvent at the making of the settlement, and that the loss of the property contained in it did not make him insol- vent ; and (b) that the interest of the settlor passed to the trustee of the settlement on the execution thereof. If it was executed within two years of the banki'uptcy, it is void as against the creditors, imless it comes in one of the three following groups : — (w) The sale must be public (sect. 14-5), unless the Court other- wise orders. Hunt v. Fensham, 12. Q. B. D. 162. [x) Sect. 47. The word "settlement" includes a conveyance of property. This section does not apply to the administration of the estates of deceased insolvents. In re Gould, 19 Q. B. D. 92. THE LAW OF BANKRUPTCY. 349 [i.) a settlement made before and in consideration of marriage ; (ii.) a settlement made in favour of a dona fide purchaser or incumbrancer for value ; or (iii.) a post-nuptial settlement on a wife or children of property which has accrued to the settlor in his wife's right. (e) Agrcenienfs to_Scfthon Marriage {y). — These are void as against the trustee in bankruptcy, unless the money or property to be settled has, as a fact, been paid or transferred to the trustee of the settlement ; or unless the property accrues in right of the wife. (d) TJwsc taking under Fraudulent Preferences (z). — If a person unable to pay his debts as they become due gives to any creditor a preference "within three months of the presentation of a bankruptcy petition against him, this preference is deemed fraudulent, and the creditor must give up the amount to the trustee in bankruptcy [a). It will not apply to a third person who for value and bond fide has obtained bankrupt's property from such creditor. The question to be de- termined is, was the payment or the agreement made to enable the debtor to continue his business, or was it a mere scheme to get payment of a past debt (6) . (e) Mortgagees. — These are secured creditors, and may realize for their own benefit (c). As to mort- gages of personal property, see under "Bills of Sale" (f/). (v) Sect. 47 (2). {;) Sect. 48. («) Note that fraudulent preferences or settlements maybe ground for refusing an unconditional discharge. Ante, p. 341. [b) Ex parte Wilkinson, 22 Ch. D. 788. \c) Post, p. 365. {d) Ante, p. 310. 350 MISCELLANEOUS. If the security is on real estate, the creditor may apply to the Com-t, and an order may be made for a sale, accounts, and inquiries. The trustee, as a rule, will get the conduct of the sale (r) , and the money resulting will go to pay expenses, then to pay the mortgagees, the remainder falling into the general estate. If there is not enough for the mortgagees, they can prove against the estate for the deficit. (f) Pi'rso)i)i injured by Disclaimer (/). — If they have an interest in the property {y) , they may apply to the Court, and get an order vesting it in them- selves. If the person is an underlessee or a mortgagee the order will he made, but the property -will pass sub- ject to the bankrupt's liabilities in connection with it. In any case, a loss caused by disclaimer is a provable debt in bankruptcy (//). (g) Generally. — Any person under a contract with a bankrupt may apply to the Court for rescission, and an order will be made if in the opinion of the Court a fit case is made out. Damages may be awarded to either party, and the creditors may prove against the estate for these. I Subject to the above any payment to or by the I bankrupt, or any settlement by him, or any contract I made by him, will hold good, provided the transaction I is bona file, and takes place before the date of the J receiving order, and before any notice of any " avail- {e) In re Jordan, 13 Q. B. D. 228. (/) See later, p. 358. {g) The landlord has not an interest within the meaning of this section. Ec Parker and Parker, 14 Q. B. D. -105. (/() Sect. 55 (7). THE LAW OF BANKRUPTCY. 351 able act of bankruptcy " (/). And notice will be in- ferred when facts come to the knowledge of the party such as would put a reasonable man upon inquuy. The Debtor's Person. The Debtors Act of 1869, abolished imprisonment for debt, except in certain cases specified therein {J); but under the law of bankruptcy, the Court may order arrest of the debtor and seizure of his books and papers, if a bankruptcy notice has been issued and served (/.•), or if a petition has been filed, and if there is reason to suspect that the debtor is about to ab- scond, -^ith the view of avoiding payment, or of avoiding service of, or any appearance on the hear- ing of the petition, or on the public examination, or if he is suspected of staying away to embarrass or delay bankruptcy proceedings against him (/). He may also be arrested if, after ser\'ice upon him \ of a bankruptcy petition, there is probable ground for beheving that he intends to remove, conceal, or destroy his papers or property {m) ; or if after such service he removes any goods above the value of 0/., without the permission of the trustee or of the official , receiver {it) ; or if he fails without due cause to attend any examination ordered by the Coui't (o) . (i) Sect. 49. iJ) See the Act 32 & 33 Vict. c. 62, ss. 4, 5. [k] Sect. 25 (2) (/) Sect. 25 (1 a). (m) Sect. 25 (1 b). («) Sect. 25 (1 c). (o) Sect. 25 (1 d). '^52 MISCELLANEOUS. Officers. The administration of the estates of bankrupts is now under the supreme control of the Board of Trade, but under tliis there are several classes of officers ; e.g., Official Receivers, trustees, special managers. The Official Rcceker. He is appointed by the Board of Trade to receive all the bankrupt's property, until the appointment of a trustee. It is not usual to nominate a separate receiver for each estate, the practice being to appoint a receiver, who holds office somewhat in the way of a permanency, and who acts in all bankruptcies within a given district. The Board of Trade may at any time appoint a deputy or a temporary receiver, and it has power of removing any whom it has ap- pointed {])). His duties are, (i) with regard to the debtor's con- duct, to report thereon, and say especially if anything has occurred which should guide the Court asto making an order of discharge conditional or otherwise. With this purpose in view, he should take part in the public examination, must personally interview the debtor, and, if necessary, he must do what is required in any prosecution for fraud {q) ; (ii) as regards the property, he must see that the proper statement of affairs is made, and may give such assistance as is requisite to ensure this. He must act as trustee (>•) until a trustee is appointed ; he must summon and preside at the {p) Sects. 66, 67. \q) Sect. 69. (/•) And as such can sell the property. Ex parte Tttrquand, 15 Q. B. D. 196. THE LAW OF BANKRUPTCY. 353 first meeting of creditors, and must issue the neces- sary forms of proxy ; he may appoint a special manager, and may remove him ; he must insert the proper advertisements, and he must report to the creditors on any proposal made by the debtor (s) . As to costs, accounts, &c., see sect. 70 (3), and Eules of 1886, Nos. 336 — 339. His powers as receiver are such as are possessed by a receiver and manager appointed by the High Com"t {f) . Special Managers {u). A special manager is a person whose duty it is to manage the business pending the making of more permanent arrangements. The appointment is made by the official receiver at the instigation of any of the creditors, biit good cause must be shown to justify it. The manager, who may be the debtor himself, must give secmity to the satisfaction of tlie Board of Trade, and he may receive remuneration at an agreed upon rate. His powers are such as are entrusted to him by the official receiver upon the occasion of his appointment. The Trustee. He differs from an official receiver in that he is ordinarily the nominee of the creditors, and not of the Board of Trade : and in that a separate appoint- ment is requisite in most cases for each bankruptcy, though of course it may happen that the same man is sometimes chosen trustee of more than one estate. (.s) Sect. 70. [t) See Kerr on Receivers. (m) Sect. 12. M. A A 354 MISCELLANEOUS. Appointmoit. — He may be appointed (1) by the creditors by ordinarj^ resolution (r) at any of their meetings, though generally he is chosen at the first {tv) ; but the debtor must have been adjudged bankrupt, or the creditors must have resolved that he be so ; (2) by the committee of inspection {x) when the circumstances are as above, and the creditors decide to leave the choice to that body ; (3) by the Board of Trade, if the creditors do not appoint witliin four weeks of the adjudication, or within seven days of the suspension of negotiations for a composition. But the trustee chosen by the Board ceases to hold office if the creditors subsequently take a trustee of their own choosing (y) . The official receiver must not be trustee except in the following cases (;;) : —(a) Where there is a vacancy in the trusteeship, then he acts until a new trustee is appointed (a) ; (b) where the value of the estate is under 300/. [b) ; (c) where the estate is that of a deceased insolvent (c). The appointment is not complete until the Board of Trade has given a certificate of appoin tmen t (cl) , and this is not obtained until the trustee has given security for the due performance of his duties (c) . The security must be given to some person ap- (y) I. c, a majority in value of those present, and voting either in person or by proxy. {iv) Sect. 21 (1). (x) Tost, and sect. 21 (1). {>/) Sect. 21 (6), (7). (;:) Sect. 21 (5). (a) Sects. 54, 70 (1) (g). {b) Sect. 121 (1). {c) Sect. 125 (5). (d) Eule 20, Form 115. {e) Sect. 21 (2). THE LAW OF BANKRUPTCY. 355 pointed by tlie Board of Trade, and must "be of a kind and to an amount fixed by this body. When it has been given the certificate of appoint- ment will, unless there is ground for objecting to the trustee, be granted, and from now the appointment dates (/) ; the certificate is conclusive evidence of the appointment. The Board may refuse the certifi- cate if (a) the trustee was not elected bond fide : (b) if he is unfit to act, e.g., if he has in any previous case been removed for misconduct ; (c) if his connec- tion with the estate, or any creditor, makes it difficult for him to be impartial {g). If the certificate is ' refused the Board must, on the demand of a majority of creditors, signify the fact and the grounds thereof to the High Court, and the validity of the refusal may be then tried (Ji) . The appointment must be advertised in the London Gazette and in a local paper ; the cost is payable by the trustee, who, however, may recoup himself out of the estate. Any number of trustees may be appointed (*), but it is usual to select one person only, who may be a creditor or not, as may seem best. Determination of the Appoint)nent. — The trustee will cease to be such in the four following cases : — • (1.) If he resigns. He should call a meeting of the creditors, and give seven days' notice to the official receiver {j). The meeting has power to accept or refuse the resio:nation. (/) Sect. 21 (4). [g] Sect. 21 (2). {h) Sect. 21 (3). (i) Sect. 84. {j) Eule 304. A a2 356 MISCELLANEOUS. (2.) If he is removed. This may be at the instance of the creditors; a meeting, of wliich seven daj's' notice should be given, must be specially called by the committee of inspection, or at the wish of 25 per cent, of the creditors, by the official receiver, and an ordinary resolution in favour of removal must be carried. The Board of Trade also has power of removing a trustee if he misconducts himself, or if he fails to keep up his security {J) ; but the creditors may then caiTy a resolution in his favour to the contrar}-. and appeal to the Court. (3.) If he has become fandus officio ; e.g., when a scheme is adopted, or when the estate has been fully woimd up. (4.) If a receiving order in bankruptcy has been made against him (/•). But though a trustee ceases to hold office in any of the above events he has yet to obtain his release. This is granted by the Board after a proper investiga- tion has been made into his accounts, and after due notice has been given to the creditors. Its effect is to [ free the trustee with regard to all matters done dming his trusteeship in his official capacity ; but it is revocable on proof of fraud or of material conceal- ment (/) . The Com))uttcc of Inspection. — It will be convenient here to state the nature and functions of this body. It is a committee, consisting of from three Jo five persons, who are appointed from amongst the creditors or those who hold general proxies, by the (y) Sect. 86, and Rules 301—303. (A) Sect. 85. (0 Sect. 82. See Eule 309. THE LAW OF BANKRUPTCY. 357 general body present at the first or a subsequent meeting (hi). Its duty is to supervise tlie trustee, and to superintend the general administration of the estate. It must meet at least once a month, and a majority of its members forms a quorum {a). A member ceases to be such when (i) he retires by delivery of written notice to the trustee (o) ; (ii) if he become bankrupt, or compounds with his creditors (p) ; (iii) if he is removed by resolution carried at a special meeting, seven days' notice of intention to hold which has been given (q) ; (iv) if he is absent from five consecutive meetings (p) ; (v) if the com- mittee is/idicfus officio. It is not necessary that a committee should be appointed, and in its absence the Board of Trade will give any proper consent to acts which the trustee cannot of his own power perform (r). For these, see later, p. 359. Duties of a Trustee. — Grenerally, the trustee's duty is to realize the estate to the best advantage, and to distribute it as quickly as possible ; to be obedient to the resolutions of the creditors, and to the orders of the Board of Trade ; and to make no profit in any way except what may be specially allowed him as remuneration. In some cases neglect alone will involve personal liability, e.g., if he makes improper applications to the Coui't, he may be made to pay the costs personally. Duties as to the Banhuq^fs Property. — He must H Sect. 22 (1). [p] Sect. 22 (5). («) Sect. 22 (2), (3). [q) Sect. 22 (6). {o) Sect. 22 (4). \r) Sect. 22 (9). 358 MISCELLANEOUS. not directly or indirectl}" purchase the estate, nor may he make a profit out of it ; with tliis respect his duties and powers are large. lie must collect debts, take possession of the estate, real and personal, and with the pennission of the committee of inspection he may carrj' on the business, with a view to its better realization. He may, and where necessary should, transfer choses in action, stock, and indeed any pro- perty of the debtor. Some forms of property are difficult to get in ; amongst these are i^a) the profits ( f a benefice (;"). Tlicsc he may sequester, lea\'ing sufiicient to pay the curate a maximum of 50/. on accoimt of his last four months stipend ; and further, leaving sufficient to pay the expenses of carrying on tlie ser\'ices ; (b) salaries, pensions, especially those of naval and military officers, and of civil servants of the Crown. Here it is the trustee's duty to make application to the Court, and to receive the sum which, according to the order obtained, is due from the debtor (it). Dischtiwcy of Onerous Projjcrtyi^v) is an important duty which the trustee has to perform. Where any property {ic) consists of land bmxlened -^ith onerous covenants, onerous contracts, shares or stock in companies, or of any other property unsaleable, or saleable only with difficulty owing to its burdens, the trustee may disclaim the property ; but (i) the (0 Sect. 52. («) Sect. 53. Salary does not include prospective earnings of a professional man {In re Unltoii, 14 Q. B. D. SOI), nor a voluntary allowance. Ex parte TTicks, 17 Ch. D. 70. ((•) Sect. 55. («•) This includes property divisible among-st creditors, and pro- perty not so divisible, provided only that it is burdensome. Ex parte MonJchonse, 14 Q. B. D. 95G. THE LAW OF BANKRUPTCY. 359 disclaimer must be in writing and signed by the trustee ; (ii) it must take place Avitliin tbree months of bis appointment ; or, if be bas no knowledge of tbe property "^atbin a montb of bis appointment, tben witbiu two montbs of bis acquiring tbe knowledge ; (iii) be must obtain leave of tbe Court {z), unless tbe property bas not been sub-let, mortgaged, or assigned ; and eitber (a) its value is under 20/. ; or (b) tbe estate is being administered summarily ; or (c) tbe lessor does not bring tbe matter before tbe Court witbin seven days of bis being acquainted witb tbe trustee's intention to disclaim. A person interested may make written application to tbe trustee, asking wbetber or no be intends to disclaim, and in tbe event of no disclaimer witbin twenty-eigbt days, tbe rigbt is gone, and tbe trustee may be personally liable for tbe consequences (i/). Tbe effect of disclaimer is to release tbe trustee and tbe estate from any liability on tbe property from tbe date of tbe disclaimer, notwithstanding previous acts of ownership (;:) ; but those who are injured have certain rights (a). ^ Poicers nf ihp. Trus. t pjL.{ h\. — He may (a) sell all or any of the bankrupt's property by public or private sale, and may transfer the portions sold to tbe purchaser ; (b) give receipts conclusive in the payer's favour; (c) prove for and di-aw dividends to which the bankrupt is entitled ; (d) exercise powers given {x\ Sect. 55 (3), and Rule 320. \y) Sect. 55 (4), and Ex parte Machiij, U Q. B. D. 401. The Coiu't may extend the time. (;) Sect. 55 (1). (a) See before, p. 350. \b) Sects. 55, 57. 3G0 MISCELLANEOUS. him by the Act, and execute instruments necessary for carrying it out ; (e) deal with property to which the hankiiipt is tenant-in-tail, just as could tlie bankrupt himself. With the permission of the committee of in spection, he ^iiy' exercise more extended powers ; viz., he may (a) carry on the business, so far as is necessary for the winding up of the estate ; (b) bring or defend any legal proceeding relating to the property ; (c) re- tain any solicitor or agent to do any particular act, but he cannot give a retainer to act generally in all matters ; (d) agree to accept a future payment for l^roperty sold, subject to such security as the com- mittee may think fit to take ; (e) mortgage or pledge the property to raise money for the payment of debts; (f) compromise claims, whether by or against the bankiiipt, and refer to arbitration ; (g) divide in its existing forms such property amongst creditors as from its natm-e is not readily or advantageously capable of sale. In no case must the permission be general ; it is requisite for each j)articular act desired to be done ; and in every case the ^dshes of the general body of creditors must be regarded, vchen such wish is pro- perl}- and regularly expressed. It must be remem- bered that the assistance of the Court may always be invoked against a trustee who is exceeding his powers, or who is exercising them improperly. The Trustee's Accounts. — These must be kept in the prescribed manner, and all money received and sj)ent must be accounted for. Money received must not be retained by the THE LAW OF BANKRUPTCY, 361 trustee, nor paid into a private account {b) ; and if he keeps certain sums (c) beyond ten days, he makes himself liable to severe penalties (d). It should be paid into the Bank of England (Bankruptcy Estates Account), and a receipt should be taken by the trus- tee. In some cases, money may be left at a local bank. Thus, when a debtor has an account at any bank, it is usually kept open for seven days after the first meeting ; and the general funds of the estate may be paid into a local bank, if the committee of inspection apply to the Board of Trade, show good reason, and get a consent. All cheques- paid out of such bank should contain the name of the estate on the face, and be signed by the trustee, by one member of the committee, and, if thought desirable, by one other person specially appointed (c). Trmfee's Books. — He must keep (1) a record book. This will contain an account of all proceedings and information necessary to furnish a correct view of the administration, e. g., resolutions of creditors. (2) A cash book. Which must contain the receipts and payments as made from day to day, except those falling under the next head. (3) A trading account book. This only if the trustee is trading for the estate ; it must contain receipts and disburse- ments, and it must be incorporated weekly with the cash book ; once in each month it should be verified by affidavit, and be certified by the committee of inspection, or by some one deputed to do it by such committee (/). (b) Sect. 7o. ((") The exact amount being fixed by the Board of Trade. {d) Sect. 74 (6). (e) Sect. 74, and Eule 340. (/) Rules 285—296. 362 MISCELLANEOUS. Audit of Accounts {•), but as against others he can distrain for all due to him ; if he distrains after the commencement of the bank- ruptcy, he can do so only for one year's rent (s) . Of course he may prove for the remainder, but he does so only as an ordinary creditor (.s). Distribution amongst Creditors generally. — To entitle him to a dividend out of the estate, the creditor must send in a proof of his claim. A secured creditor has an option {t) : he may (1) surrender his security and prove for his entire debt ; (2) he may realize it, and prove for any deficit after deducting the net amount realized ; (3) he may state the particulars in his proof, assess its value, and ask for a dividend on the deficit ; but in this case the trustee may redeem the security at the assessed value (a). If the trustee does not redeem, the creditor may ask him in writing to say whether he will do so or no, and the trustee must then, if he wishes to redeem, do so within six months. If the trustee is discontented with the valuatiou, he may demand a sale of the secmity ; if the creditor is discontented with his own valuation, he may amend (r). (r) 51 & 52 Vict. c. 62, s. 1 (4). (s) Sect. 41 (1). (t) B. A. 1883, Sched. II. rr. 9 et scq. (u) Cf. the trustee's j)ower of redeeming when the creditor claims to vote at a meeting, ante, p. 338. (v) As to when he may amend, see £x parte JVorris, 17 Q.B.D. 728. 366 MISCELLANEOUS. Proofs. — A creditor may prove for all liabilities, present, futiu'e, or contingent, inciu-red before the receiving- order {ic) ; e.g., in Hardy v. Fother(j'dl{x), it was decided tliat claim could be made for non-per- formance of a covenant to leave in repair, the lease not yet having expired. A contingent claim must be estimated by the trustee, or if this is impossible, the Court may, on application, declare the debt not prov- able {y). If there have been mutual dealings between the debtor and the creditor, set-off is allowed in taking the account between them (s) . The following are not provable [a) : demands in the natm'e of unliqiudated damage not arising from contract, promise, or breach of trust, and debts con- tracted by the debtor after knowledge by the creditor of an act of banla■uptc3^ A proof should be made as soon as may be {h) after the making of the receiving order, and should be sent to the trustee (or official receiver), verified by affidavit ; all particulars must be given, and vouchers neces- sary to substantiate the claim should be named (c). When the proof is sent in, the trustee must, within twenty-eight days(f^), admit it, reject it, or require further evidence, and in any case must send written {ic) Sect. 37 (3). \x) 13 App. Ca. 351. {y) Sect. 37 (4), (5), (6), (7). _ (z) Sect. 39. As to unliquidated claims, JacJ; v. Kipping, 9 Q. B. D. 113. {a) Sect. 37 (1), (2). {b) To enable a creditor to vote at a meeting, he must send his proof within the time specified in the notice convening the meeting, and never later than the midday preceding the date of meeting. (c) See the form No. 72. [d) Rule 228. THE LAW OF BA^'KRUPTCY. 367 notice of liis decision, with the grounds thereof, to the creditor {(■) . The Court has full power to review the decision, and may expunge or reduce a proof admitted by the trustee, even on the application of the trustee himself (/). When a dividend is about to be declared, the trustee must admit or reject the proof, and give time for an appeal before distributing the moneys {{/) . Interest. — It may be noted that this may be in- cluded in the proof under some circumstances. As to these, see the Act, Schedule II. r. 20. Dmdends {h). — These are payable to all who have proved, the amoimt depending upon what remains of the estate after payment of the expenses and the preferential debts. There may be one or more divi- dends, according as may be found convenient, and the time for declaration, though fixed by the rules, may be varied to suit the circumstances (/). Due notice must be given to the creditors, to the Board of Trade, and the intention to distribute must be announced in the " Gazette." As to further procedure, see Eules. Compositions and Arrangements. A debtor may obtain his release by the acceptance of a composition or the adoption of a scheme of arrangement; e.g., the creditors may agree to take 2.S. 6f/. in the £ payable by instalments, and guaranteed by satisfactory persons. This may take place after adjudication of bankruptcy [J] ; but as a rule it precedes this, and is consented to at the first meeting {e) Schedule II. r. 22. {h) See Eules 232, 234. (/) Schedule II. rr. 23—25. (i) Rule 232 (5). ijj) Eule228. [j) Sect. 23. '368 MISCELI.ANEOL'S. or at an adjournment thereof. The creditors must accept it by special resolution (,/), and this must be (confirmed at a subsequent meeting {k). This latter must be announced seven days beforehand, and the announcement must be accompanied by the official receiver's report on the scheme ; it must not be held till after the conclusion of the public examination. If accepted at the second meeting by a majority of at least tliree-fourths in number of those who have proved, the sanction of the Court must then be obtained (/). If this is given the receiving order is discharged, and the adjudication, if made, is annulled, and the bankrupt's property reverts to himself or goes to such person as is nominated in the scheme ; the debtor thereafter being free from all liabilities, except those reserved in the settlement or those which would not have been provable in bank- ruptcy {m . The trustee imder a scheme is, so far as possible, in the same position as the trustee in a bankruptcy (ii) ; but he must adhere to the terms of the an-angement, which should, however, provide for the payment in full of the preferential debts mentioned above (o). Sometimes creditors an-ange with the debtor pre- ■sious to the making of a receiving order, but in such a case the rules of bankruptcy do not apply, and the (_;■) /. e., A majority in number and three-fourths in value of those present in person or by proxy. Sect. IS (1). {k) Sect. 18 (2), (3). (/) Sect. 18 (4). The desire of the creditors is not of itself sufficient to induce the Court to approve the scheme. £x parte Reed and Boa-en, 17 Q. B. D. 244. (w) Flint V. Barnard, 22 Q. B. D. 90. (w) Sect. 18 (12). (o) Sect. 18 (14). THE LAW OF BANKRUPTCY. 369 debtor is released from the claims only of those who assent to the scheme. By the Deeds of An-ange- ! ments Act, 1887 (p), no such arrangement is bind- ing (g) unless the deed containing it is registered at the Bills of Sale Office within a time and according to the rules (r) fixed by the Act. Bankruptcy of Partnerships and Partners. As a whole the rules governing the administration of the estate of an individual apply to that of a firm, but in some respects there are variations. If the partnership consists of more than seven members it may be woimd up under the Companies Acts, and no receiving order can be made against a company. In ordinary cases the receiving order may be made against a firm (.s), but it operates as an order against each individual member, and the Court will order discovery to be made of the names of the partners. A debtor's petition presented by a firm must con- tain the name of the individual partners, and must, if signed by one member on behalf of the others, be accompanied by an affida^^t showing the concurrence of the non-signatories. A petition may be presented against one partner only (f). The statement of affairs must be presented as in ordinary cases, but each partner must file a statement as to his own individual estate. The adjudication is (v) 50 & 51 Vict. c. 57. (q) But an act of bankruptcy may nevertheless be committed if goods are assigned, though the assignment be void. See ante, p. 332, and In re Hollingshead, W. N. 1889, 28. (»•) See In re Batten, 22 Q. B. D. 685. (s) Sect. 115. {t) Sect. 110. M. B B 370 MISCELLANEOUS. made as against tlie individuals l)y name and not against the firm. The first meeting is attended by the joint creditors and by the creditors of each separate partner's estate, the joint creditors appointing the trustee (»), each estate being entitled to its own committee of inspec- tion. The trustee's remuneration is fixed by each estate separately. Admininf ration of the Joint Edate{v). — The joint creditors have priority over the separate creditors, and they are entitled to interest to tlie date of the receiving order. After these have been paid in full, the separate creditors take, and if anything remains after their payment the joint creditors get interest up to date. Separate creditors may not compete with joint imless a member's separate property has been used fraudulently by the firm {>r). Administration of the Separate Estate. — The separate creditors are in priority here, and the same rules apply with the necessary changes as in the administration of joint estates. Joint creditors cannot compete with separate unless (a) there is no joint estate, and no solvent partner ; (b) there has been a fraudulent conversion of the tinn's property (x). Administration of the Estate of a Deceased Insolvent. If petitioning creditors whose debts amount to 50/. in the aggregate demand it, the estate may be ad- ministered in the local Court of Bankruptcy; and if (;/) Sect. 112. (f) Sect. 40 (3). {w) See ante, p. 238. {x) See ante, p. 238, and Williams on Bankruptcy. THE LAW OF BANKRUPTCY. 371 ■ail aclministratiou on tlie equity side is in progress, the Court may transfer it to bankruptcy. The creditor must petition in a certain form (y), and must verify his petition by affidavit, and he must show that there is no reasonable probability of the estate being able to pay its debts. No order can be made within three months of the decease unless an act of banki-uptcy was committed within the tlu'ee months preceding the death, or unless the personal representatives concur. The official receiver becomes trustee, and he must deal with the estate according to ordinary rules, except that funeral and testamentary expenses must be paid in priority to every other debt. He is entitled to full co-operation from the executor or administrator, and may ask of them every information he requires. Administration of Small Estates {z). When the debts amount to not more than 50/., the Court may make an order for their payment by instalments or otherwise, and either in full or to such an extent as may seem just. If the estate is under 300/., the estate is administered by the Official Eeeeiver as trustee, and without a committee of in- spection (a). TV. Stamps. Many contracts are, for revenue purposes, required to be stamped, and if so, they cannot, except in criminal proceedings, be used in evidence unless the (y) Form 11, Rules of 1886. (z) Sect. 122 ; and see Rules of January, 1889. (a) The procedure is regulated by sect. 121. B b2 372 MISCELLANEOUS. proper stamp has been affixed, and in the proper manner (ft). When the instrument is produced in Court, the officer must examine it, and if it prove that the duty has not been properly paid in accord- ance with the Acts for the time being in force, the Court will refuse to look at it, unless such duty and any penalty incurred is paid. No agreement between the parties will be good which aims at in- demnity against want of stamp, nor can the parties agree to waive objections on that head {h). If a document is lost or destroyed, the presump- tion is that it was stamped, but tliis can be rebutted by the production of evidence showing that it was unstamped when last seen (c) ; and if a party refuses to produce a document, the presumption is that it was stamped, imless the contrary is showTi (d). The stamp must, in the absence of special pro- vision, be affixed previously to or at the time of exe- cution of the instrument, unless the first execution took place out of the United Kingdom, in which it may be stamped -within thirty days of its arrival ■VN^ithin those limits (r'). Unless expressly forbidden by statute, any instrument may be stamped after execution on pa^'ment of a penalty of 10/., and the duty, together witli interest at 5 per cent, if the amount impaid exceeds 10/. (_/') ; and when it is desired to use in Court a document improperly stamped or imstamped, a penalty of 1/. in addition to the above must be paid. But the Commissioners of (a) 33 & 34 Vict. c. 97, s. 17. (J) 51 Vict. c. 8, s. 20. (c) Ji. V. Castlemorton, 2 B. &- Aid. 583. {(i) Crisp V. Andersmi, 1 Stark. 35. (e) 33 & 34 Vict. c. 97, s. 15, and 51 Vict. C. 8, f. 18. (/) Ibid. STAMPS. 373 Inland Revenue are empowered to remit the penalty, or any part of it, within twelve months of the first execution ; and the general practice seems to be to give three months. But, in the case of bonds and covenants being security for any annuity, convey- ances on sale, leases, mortgages, debentures, trans- fers, releases, and assignments thereof, equitable mortgages, settlements, and certain other instru- ments, the Inland Revenue Act, 1888 (^), limits the allowance time to thirty days. Manner of Writing and Sfainping Instruments. — AH instruments are to be wTitten in such a manner, and the stamp must be so affixed, that it cannot be used for any instrument other than that to which it relates ; and if more than one instrument be written on the same piece of paper, each is to be stamped separately to the extent of its proper duty (h). If the stamp is, by any word or words on the face of it, to be appro- priated to any particular description of instrument, it is valid only for that particular pm'pose (/). When the duty varies with the interest conveyed or other^vise dealt with by the instrument, the value of this interest is examined into by the inland revenue officers, stock, &c., being charged according to its market value on the day of execution {J), foreign money according to its value in England at the then rate of exchange (A-) , and so on ; but the value set on it by the parties will not be taken in the absence of proof (l). {g) 51 Vict. c. 8, s. 18 (a). (/) Ihid. s. 12. 10 5» M 20. . 1 20 ?» »> 30. . 1 G 30 5» »5 40. 2 40 5) 5? 50. 2 50 '> 5> 100. 5 100 1> J> 200. 10 200 ?J 5? 500. 15 500 ly 55 750. 1 750 ?» 55 1,000. 1 5 Wliere it is over £1,000 . 1 15 Bank Note.— — This inchides any bill o " exchan ge issued by any banker, other than the Grovernor and Company of the Bank of England, for the payment of money not exceeding 100/. to bearer on demand {//) ; also any bill of exchange or promissory note so issued which entitles, or is intended to entitle, the bearer or holder thereof, without indorsement, or without any fm'ther or other indorsement than may be thereon at the time of the issuing thereof, to the payment of money not exceeding 100/. on demand, whether (//) 33 & 34 Vict. c. 97, s. 45 (1). 376 MISCELLANEOUS. the same be so expressed or not, and in whatever form, and by whomsoever such bill or note is drawn or made (/), No stamp is required on re-issue (./). For money not exeeding £1 Exceeding £1, and not exceeding £2 2 5 10 20 30 50 10 20 30 50 100 £ d. 5 10 Bills of Exchange and Promissory Notes. A bill, for the pm-i)0se oi' the Act, includes (/.•) (1) any (4) Beconveyance, release, surrender, discharge, &c., of any of tho above securities : For every 100/., or for every fractional part thereof , . . . .006 (B) Equitable Mortgage (?r). Agreement or memorandum under hand only relating to the deposit of any title deeds or instruments, constituting or being evidence of the title to any property whatever (other than stock or marketable security), or creating a charge on such property. For every 100/., and every fractional part thereof . . . . . . Is'. (C) Mortgage of Stock or Marketahk Securiti/. Every agreement under hand, given upon th& deposit of such, shall be charged as an agree- ment, i.e., sixpence {x). Every deed operating as a mortgage of stock, such seciu-ity shall be charged the same ad valorem duty as is payable on a mortgage. (D) Foreign Securities. See ante, p. 381. (E) Securities to Bearer. On every £10, and on every fractional part thereof . . . . . . Is, Notarial Act 6d, {w) 51 Vict. c. 8, s. 15, and Schedule. {x) Ibid. a. 14. STAMPS. 385 Policy of Insurance. (1.) Upon any lives [y], or upon any event or con- tingency relating thereto (except accidents) : Wliere the sum insured does not exceed 10/. Id Exceeds 10/., but does not exceed 25/. . 3f/. Exceeds 25/., but does not exceed 500/., for every 50/,, or fractional part thereof Qd. Exceeds 500/,, but does not exceed 1,000/., for every 100/., or fractional part thereof . . . . . Is. Exceeds 1,000/., for every full sum of 1,000/., and also for every fractional part thereof . . . . .10s, (2.) For payment agreed to be made upon the death of any person froin accident {z) or violence, or otherwise than from a natural cause, or by way of indemnity against loss or damage of or to any pro- jjerty . . . . . . . Id. (3.) Marine Policies. I These may be stamped after execution 6r pay- ^^H^ 'I ment of a penalty of 100/, The ordinary rates are as follows : — For every 100/., or fractional part thereof, insured upon any voyage . . . 3d. For any time not exceeding six months . 3d. For any time not exceeding twelve months ...... 6d. (y) And see 51 Vict. c. 8, s. 19. (z) See 52 & 53 Vict. c. 42, s. 20, as regards insiirance upon condition of purchase of an article. M. C C 386 MISCELLANEOUS. Power of Attorney. See above under Letter of Attorney. Promissory Note. See above under Bills ofExehamje. Protest. Wliere the duty on the bill does not exceed Is-., the same duty as on the bill, otherwise the duty will be Is-. Receipt (rr). This means any note or writing whereby any money amounting to 2/. or upwards, or any bill or note amounting to the same, is acknowledged to have been received or deposited, or whereby any debt is signified to have been settled, or satisfied, or discharged, or which signifies such acknowledgment. The duty may be denoted by an adhesive stamp, which must be cancelled by the person by whom the receipt is given before he delivers it out of his hands {h) . If unstamped before execution, it may be stamped afterwards with an impressed stamp, but upon payment of a penalty of 5/., if the receipt has been given not more than fourteen days, or if within a month, then upon payment of a penalty of 10/. Amount of duty . . . . . Id. For exemptions, see the Schedule to the Stamp Act, 1870. Scrip Certificate. See Letter of Allotment. Share Certificate (c). Foreign and Colonial. nominal amount not more than 2-5/. . Sd. exceeding 251., and not exceeding 50/. . 6d. (a) 33 & 34 Vict. c. 97, ss. 120 et scq. \b) See ante, p. 374. (V) 51 Vict. c. 8, s. 12 (1). STAMPS. 387 exceeding oO/., for every oO/. or frac- tional part thereof .... Gd. (But if any new certificate is given of registration in the register of the foreign or colonial company, &c., the inland revenue may, subject to such regula- tions as may be prescribed, stamp such new certificate without payment of fui'ther duty.) Share Warrant. See sect. 33 of the Companies Act, and see Conveyance on Sale. Warrant for Goods ..... 3(/. Exemptions. (1.) Any document in writing given by any inland carrier acknowledging the receipt of goods conveyed by such carrier. (2.) A weight note issued with a duly stamped warrant, and relating solely to the same goods,^wares, and merchandise. c c 2 INDEX. ACCEPTANCE, to satisfy the Statute of Frauds, 86. See Peo- posAL AND Acceptance, ACCOMMODATION BILL, 187, n., 195. ACCORD AND SATISFACTION, 42. ACCORD WITHOUT SATISFACTION, 42. ACKNOWLEDGMENT, 63, 64. AFFREIGHTMENT, contract of, 278. And see under Chaetee Paety ; Bill of Lading ; Feeight ; Stoppage in Teansitu. AGENT. See Principal and Agent. AGREEMENT. See Conteact. discharge by, 61. AGREEMENTS WITH SEAIVIEN, 291 et seq. ALIENS, contracts of, 37. bankruptcy of, 330. ALTERATION, of a contract, generally, 66. of a bill or note, 196. of a raarine pohcy, 259. as affecting a surety, 304. AMBASSADOR, contracts of, 38. APPROPRIATION OF PAYMENTS. See under Payments. ASSIGNABILITY, meaning of, 161. AUCTIONEER, 160. signature of, as satisfaction of the Statute of Frauds, 91, AVERAGE, meaning of, 289. kinds, ib. particular average, ih. general average, ih. essentials of a general average loss, 289, 290. adjustment of average, 290, 291. 390 INDEX. BAILMENTS, definition, 2G6. general I'ules us to, 266, 267. BANK NOTES. And nee under Bills of Exchaxge. differ from bills of exchange and promissory notes, 208. are negotiable, 167. stamp, 375. properties, 207. BANK SHARES, contract for the piu-chase of, 24. BANKRUrTCY, 329 et seq. bankruptcy laws, 330. who may be made bankrupt, ib. acts of bankruptcy, 331, 332, 333. commencement of a Imnkruptcy, 344. bankruptcy notice, 333. petition, 331, 335. petition by or against a partnership, 369. receiving order, 336. effect of a recei^•^ng order, ib. puts an end to subsisting contracts, 65. meetings, debtor should attend, 347. quorum at, 337. procedure at, ib. chairman, ib. who may vote, 337, 338. proxies, 338. the first meeting, 337. where the bankrupts are partners, 370. adjudication, when to be decided upon, 337, 339, grounds of, 339. annulment of, 339, 340. against a partnership, 370. public examination, when and where held, 338, 339. procedure, 338. adjournment of sine die, ib. statement of affairs of the bankrupt, 346. in partnership cases, 369, 370. cash accoimt, 346. special resolutions and ordinary resolutions, 354, 368. proxies, 338. discharge of the debtor, effect of, 340, 342. when application should be made, 340. forms of, 340, 341. grounds for refusing or for making conditional, ib. procedure, ib. revocation of, 342. INDEX. 391 BANKRUPTCY— row ^;h ued. official receiver, the may be appoiuted interim receiver previous to the receiv- ing order, 336. appointment in ordinary cases, 352, 353. duties and power, ih. ■when may act as trustee, 354. property vests in him imder certain circumstances, 346. special managers, 353. creditor, right to prove, 366. trustee, how appointed, 337, 354. how dilters from an official receiver, 353. security by, 354. Board of Trade may refuse to ratify appointment, 355. termination of appointment, 355, 356. official receiver may sometimes be appointed, 354. duties, 357. distribution of property by, 363. disclaimer of onerous property, 358, powers of, 359. with the consent of the committee of inspec- tion, 360. accoimts of, 360, 361, 362. books of, 361. remuneration of, 362, 363. how he should deal with proofs, 366, 367. may redeem securities, 365. should estimate contingent claims, 366. rmder a scheme, 368. in the bankruptcy of a partnership, 370. debtor's property, discovery of, 345. what is included, 342. property divisible amongst creditors, 343. property not di^'isible amongst creditors, 344. vests in official receiver on the making of a receiving order, 336. salary of the debtoi', 345. distribution, 365. after -acquired, 343. action, rights of, ib. committee of inspection, may be appointed at the first meeting, 337. may sometimes appoint a trustee, 354. duties of, 357. Board of Trade acts if none appointed, Ih. debts, how proved, 365, 366. preferential, 363. rank equal inter se, 364. what may be proved, 366. •what may not be proved, ib. 392 INDEX. BAl>iKKUVTCY— continued. wages, 364. landlord's rights, 336, 365. expenses, 36a. distress, 365. proofs, how made, 366. trustee's duty as to, 366, 367. rejection of, 337, 366. when should be sent in, 366. dividends, 367. reputed ownership clause, 343. fraudulent conveyance, 332, 341. fraudulent preferences, 332, 341, 349. execution against bankrupt's goods, 332, 347, 348. execution creditor, riglits of, 347. sheriff's duties, 348. settlements, when they hold good against the trustee in bankruptcy, 348, 349. agreements to settle, 349. fraudulent settlements, ib. mortgagees' rights, 349. disclaimer, rights of those injured by, 350. trustees' duties as to, 358. effect of, 359. when leave is required to, ib. arrest of debtor, 351. secured creditors, 336, 338, 365. bond fide transactions, 347 — 350. small estates, bankruptcy of, 371. compositions and aiTangemeuts, 367. usually considered at the first meeting, 337. procedure, 368, 369. trustees under, 3GS. schemes outside the Act, 369. partnership, bankruptcy of, procedure, 369. administration of, 370. when may be wound up under the Companies Acts, 369. infant, 28. married woman, 33. BANKRUPTCY NOTICE, 333. BARRATRY, 326. BARRISTER cannot sue for professional work done, 37. BILL OF EXCHANGE, a negotiable instrument, 162. history of, 163 et seq. INDEX. 393 BILL OF 'EXCHANGE— contimied. law relating- to, contained in the Bills of Exchange Act, 1882, 170. but common law rules still hold where not inconsistent, definition, 171. requisites, 9, .171 et seq. stamp, 377. form, 172. parties, 172, 173. cf. sureties, 185. date, deemed to be the true date, 172. may be inserted after bill has been made, ib. may be post-dated or ante-dated, ib. may be dated on Sunday, ib. amount, 193. words " value received," 173. material on which the bill may bo written, ib. acceptance, Hi et seq. meaning of, 174. how effected, 174, 175. presentment for, 175. time for, ib. method of, 176. excused, ib. acceptance for honour supra protest, 177. when di-awee is dead or bankrupt, 176. qualified acceptances, 177, 178. admission consequent on, 189. delivery of a bill, 175. negotiation of a bill, what is negotiation, 178. how effected, of bill to bearer, 178. order, 178, 179. indorsement, 179. partial, is bad, ib. indorsements in blank and special, ib. conditional, ib. restrictive, 179, 180. admissions consequent on, 180, 191. " sans recoui-s," 185. holder of a bill, definition, 180. holder in due course, 180, 181. rights and duties of holder, 181, 183. burden of proof as to bonajides of holder, 181, 182. defects of title, 181, 183. circuity of action, 184. lost bills, 183, 184. 394 INDEX. BILL OF -EXCILAliJGB— continued. ndorsers, rights against drawer and prior indorsers, 184, 185. right to notice of dishonour, 186, 187, 188. liabilities, 190, 191. admit certain facts, ib. di'awer, rights against acceptor, 184. may sign " sans recours," 185. may claim notice of dishonour, 1S6, 187. liabilities, 190. admissions, ib. acceptor, liability, 189. admissions, ib. acceptor for honour, 190. rights of, ib. notice of dishonour, 185 rt seq. when should be given, 185, 186. to whom should be given, 186. no particular form required, ib. given by holder is good for some other parties, ib. excuses for, 187. accommodation bill, 187, n., 195. protest, 189. damages, measure of, 191. discharge, 192 ct seq. paj-ment, 192. to whom, ib. when, 193. when payee fictitious, 192, 193. days of grace, 193. presentment for, 194. excuse for non- presentment, 194, 195. for honour, 195. amount, 193, 195. waiver, 196. cancellation, ib. alteration, 196, 197, 198. in the case of a Bank of England note, 197. merger, 198. bills in a set, ib. foreign bills, difference between these and inland bills, 199. must be protested on dishonour, ib. law applicable, ib. agi'eements intended to control negotiable instruments, 199, 200. rule in Ex parte Waring, 200, 201. BILLS OF LADING. Sec Stoppage ix Transitu. definition, 282, INDEX. 395 BILLS OF -LADmG-coiiiluurcl. form, 282. stamp, 283, 378. signature to, by master, 283, 326. generally qua agent of the owner, 283, 284. to extent of goods on board only, 285, 326. liability of master for goods signed for and not on board, 285. mate's receipt, 283. Bill of Lading Act, 1855 . . 209, 285. clean bill, 286. duty of owner, 285. master, 286. excepted risks, 285. "weight, contents, and value unknown," 286. bills in parts and in different hands, ib. pass goods at common law, 209. are now negotiable, 169, 209, should be amongst ship's papers, 323. BILLS OF SALE, include, 310. do not include, 311. absolute and conditional bills, 312. form, 314, 315. requisites, registration, 312, 316. consideration, ib. attestation, ib. form in the schedule, 314, 315. any defeasance must be on same paper on the bill, 313. void, if condition not complied with, 313, 314. stamp, 378. duplicate bills, 313. priority, inter se, 313, 314. when the goods may be seized, 316, 317. sale of ship by bill of sale, 321. BONDS PAYABLE TO BEARER, are sometimes negotiable, 163, 209. stamp, 381, 384. BOTTOMRY BOND, what is, 327. who may execute, 327, 328. when master may, 328. essentials of, 327. no form required, ib. interest, ib. effect of a, ib. priorities of, 327, 328. BOUGHT AND SOLD NOTES, 158. 396 INDEX. BREACH OF CONTRACT. See under Coxteact. BROKERS, definition, 157. formerly under the control of the Corporation of London, 158. not .so now, ib. bought and sold notes, ih. broker's books, ib. agents for vendor, 159. distinguished from factors, 153, 158. powers of, 159. no lien, as a rule, ib. CARRIAGE. See under Caeeiees and Affeeiohtment. CARRIER. And see Affreightsten'T. definition of a common carrier, 267. duties of, 268. place of dcliverj', ih. liability of a laud carrier for loss or damage, at common law, 269, 270. under the Carriers Act, 271. when loss caused by felony of a servant, 272. liability of a sea carrier, 273, 32i, 325. railway companies, 274. carriers' remuneration, 277. may be claimed in advance, ib. CHAMPERTY, 20. CHARTER-PARTY, definition, 278. form, 278, 279. stamp, 378. may amount to a demise of the ship, 278. usual terms, 279. implied terms, ib. construed according to the ordinary rules of evidence, 281. should be amongst the ship's papers, 323. CHEQUES, are negotiable, 162, 168, 169, 202. are included in the definition of a bill of exchange, 201. provisions relating to bills apply generally to, 205. stamp, 379. post-dated cheqiies, 205. banker's duty with regard to, 203, 204. must be presented for payment, 202. revocation of authority to pay, ib. crossed cheques, 201, 202. general and special crossing, 202. rules as to, ib. INDEX. 397 CIRCULAR NOTES, negotiable quaUty of, 210. COMMISSION AGENT, 160. COMPANIES, differ from partnerships, 211. CONDITION, difference between this and a warranty, 54 et seq. on sale by sample, 94. manufacturer of his own goods, ib. "goods to arrive," meaning of this condition, 95. on sale "on approval," ib. by description, ib. CONSIDERATION, definition, 13. when must exist, 14. adequacy, 14 et seq. for a deed, 3. in restraint of trade, ib. must be set forth if the contract is within the Statute of Frauds, 10. except in the case of guarantees, 1 1 . in the case of bills of exchange, &c., 14. executed and executory, 13. past and present, 13, 14, 17. legaUty of, 14, 17, 18. CONTRACT, definition, 1. forms of, ib. contract of record, 1 . under seal, 2. by parol, 3. executory and executed, 4. express aid implied, ib. written contract, when required, 9. written contracts need consideration, 10. when contract must be by deed, 9. must be consideration in most cases, 14. formation of, 4. iUegahtyof, 18. assignment of, 39, 40, 41. by act of law, 39. by act of party, at common law, 40. in equity, ib. under the Judicature Act, ib. may be enforced only by parties, 38. capacity to, 25. rights and duties under a, 38. 398 INDEX. CO'STRA.CT— continued. performance, 41. least onerous, presumed, 41. must be complete, ib. waiver, if>. stamp, if contract under hand, 374. breach of, right to rescind, 52 ei seq., 56. damage, 52 ct seq. specific performance, 59. quantum meruit, 52. conditions, 52 et seq. warranties, 52, 263. renunciation during performance, 57. termination of a, by agreement, 60. by performance, 42. by breach, 52. by lapse of time, 61. And see LnnTATioxs. by impossibility, 64. by merger, 65. by bankruptcy, ib. by alteration, 66. CONTRACT NOTE, 379. CONVICT, contracts of, 3S. bankruptcy of, 331. CO-OT\rNERS, are not necessarily partners, 212, 325. of a vessel, 325. CORPORATIONS, contracts of, 34. limits to contractual powers, 34, 35, 37. use of seal necessary ; exceptions, 35. Companies Act, 1867. .36. to draw or indorse negotiable paper, 174. differ from partnerships, 211. CREDITORS, frauds on, 73. seciu-ed creditors. See MoETGAaES ; Bills of Sale. DAMAGES, rules for assessing, 58. remoteness of, 59. liquidated damages and penalties, 58. when negotiable instniment is dishonoured, 191. DECEASED INSOLVENT, administration of estate of, 370, 371. INDEX. 399 DEED, wheu requisite, 9. must be sealed, 2. delivery of, ib. an escrow, ib. indented and poll, ib. difFerences between a deed and a simple contract, 3. consideration, ib. in restraint of trade, ib. BEL CREDERE AGENT, 160. DELIVERY, 92. And see under Sale, Conteact of. order, stamp on, 381. DEML'RRAGE, 289. DOCUilEXT OF TITLE. See Factoes Acts. DURESS, 77. ESCROW, 2. ESTOPPEL, 2, 3. FACTORS, definition, 153. distinguished fi-om brokers, ib. powers of, ib. Factors Act, 154. And see under Petxcipal axd Agent. FACTORS ACTS, 154 et seq. vendor left in possession of goods or of documents of title thereto, 82. vendee left in possession of goods or of documents of title thereto, 81. transferee of documents of title, rights of, 82. documents of title, meaning of, 82, 157. who may be affected by, 154. agent within the Act, ib. mercantile agent in possession of goods, 155. owner withdrawing authority, 156. effect on pledge of goods, ib. rights of consignees under, 156, 157. FIRE INSURANCE, 249 ct seq. definition, 249. stamp, 385. a contract of indemnity, 250. insurable interest required, 249. 400 INDEX. FIRE INSVRA.'NCB— continued. assig'nment, 251. rights under, 251, 252. duties, i/). money may be laid out by the company in rebuilding, 250. doctrine of subrogation, 252. And see Insukance. FIRM, ■what is a, 225. may sue or be sued by name, ib. action against, by a member, ib. guarantee to, ib. FORGERIES, liability of bankers, forged indorsements, 205. other forgeries, 204. FRAUD, generally, 66. must be (1) false representation of fact, 66. not of opinion, ib. can non- disclosure be ? 67. (2) fact known to be false to the maker, ib. moral and legal fraud, ib. (3) intended to be acted upon, 69. (4) must actually deceive, 70. (5) damage, 71. remedies for, 71. FRAUDS, STATUTE OF, 10 ctseq. sect. 4, promise of executor to pay out of his own estate, 10. guarantee, 10, 13. agreement in consideration of marriage, 10, 13. interest in lands, 10, 13, 83. agreements not to be performed within the year, 10, 13. sect, 17 . .10, 83, 84. And see under Sale. goods, Avares, and merchandize, what are, 84. executory contracts of sale ; extension to, ib. not extended where the contract is really one of work, not of sale, 84. Lee V. Griffin, 80. acceptance and receipt — what amounts to, 86, 88, 89. sale by sample, 87. the price, 89. the memorandiun, ib. does not do away with the necessity for consideration, 10. consideration must appear in the writing, ib. except in the case of guarantees, 11. writing may be made at any time before action, ib. not after, ib. INDEX. 401 FEAUDS, STATUTE OF— co>itinued. the memorandum, 11, 89. the signature, 12, 90. by an agent, 90. part performance, 12. in relation to the Factors Act, 82. FREIGHT, definition, 286. when payable, 286, 287. freight pro rata, 287. liability for, 287, 288. lien for, 288. lien under the Merchant Shipping Act, 1862, ih. GAMING AND WAGERING, a wager not necessarily unenforceable, 22. illegal if by way of gaming, ib. statute law, ib. Stock Exchange wagers, 23. bets by agents, ib. GENERAL AVERAGE. See under Ateeaqe. GOODWILL, definition, 239. forms of, 240. transfer of, ib. of partnership does not vest in survivors, 230. use of name, ib. competition with former firm by vendor or an ex-partner, 240, 241. GUARANTEES, definition, 297. must be in writing, 10, 297. consideration need not appear in the writing, 11, 297- must be collateral to another contract, 12, 13, 297. guarantee to a firm, 223, 299. rights of a guarantor, 300. discharge of a guarantor, 304. liabiHty of a guarantor, 298. continuing guarantees, 298, 299. And see under Stxeety. stamj). 8ce Contract. HORSES, sale of, 81. HUSBAND AND WIFE, 33. And see Maeeied Wouan. M. D D 402 INDEX. HYPOTHECATION of ship, 326, 327. of cargo, 329. And see Bottojiey ; Respoxdentia. "IGXOJRAXTIA JURIS XOX EXCUSAV 7-5. ILLEGALITY, 18 ct seq. at common law, agreements of an immoral nature, 19. contrary to public policy, ih. in restraint of trade, il>. sale of public offices, 20. maintenance and champerty, ib. by statute, when doubtful whether illegal or no, 21. gaming and wagering, 22. sales on Sunday, 24. sale of bank shares against the provisions of Leeman's Act, ib. miscellaneous, ib. effect of illegality, ib. recovery of money paid in accordance of an illegal contract, ib. IMPOSSIBILITY, of performance caused by one party, 58. caused by law, 65. by destruction of some necessary thing, ib. INDENTURE, 2. And see under Deed. INFANTS, definition, 25. limits to contractual powers of, ib. contracts voidable at common law, ib. Infants' Relief Act, 1874.. 29. ratification, at common law, 26. Infants' Relief Act, 29. quer}/, if ratification possible now, 29, n. necessaries, 27. examples of, ib. how determined, ib. bankruptcy of an infant, 28, 330. bills drawn or accepted by an infant, 174. INSURANCE, definition, 241. "policy," "underwriter," "assured," 242, 252. forms of, 242. analogous to a wager, 242, 243, 246. INDEX. 403 INSURANCE— continued. when a contract of indemnity, 243, 244, 250, 252, 256, is a contract ubcrriimc Jidci, 244, 245, 248. statement in connection with, often amounts to a warranty, 245, 263 et seq. stamp, 385. And see Life, Fiee, and Marine Insurance. INTEREST, at common law, 50, 51. by statute, 51. on a bottomry bond, 327. JETTISON, 327. JUDGMENTS, 1. LAY DAYS, 289. LEEMAN'S ACT, 24. XETTERS OF CREDIT, negotiability of, 210. LIEN, definition, 317. particular lien, ib. how it arises, lb. examples of, 318. general lien, ib. no right of sale, ib. how Hen is lost, ib. distinguished from mortgage and pledge, 308. agent's lien, 141. factor's lien, 154. vendor's lien, 105. lien for freight, 288. lien of seaman for wages, 294. salvage lien, 329. equitable lien of a partner, 229. LIFE INSURANCE, definition, 246. stamp on the policy, 385. person making it must have an insurable interest, 246. name of the interested person must be in the policy, ib. can recover only amount of the interest, ib. what is an insurable interest, 247. when it ceases, 246. assignee need not have an insurable interest, 247. Married Women's Property Act, 1882, ib. assignment of policy, 247, 248. liability of the insui-er, 249. non-disclosm-e of material facts, 248. And see Insxtrance. dd2 404 INDEX. LIMITATIONS, STATIFTES OF, termination of liabilities by, 61. acknowledgment to take the case out of, must be in writing, 10, 03. a sufficient acknowledgment, 63. part performance, 64. payment, ib. consideration for acknowledgment or new promise, 17. length of time, in contracts under seal, 61. simple contracts, i!>. effect of lapse of time, 62. effect of coverture, infancy, absence beyond the seas, tJ. LUNATICS, contracts with, are voidable, 34. ratification by, ib. bankruptcy of, 331. MAINTENANCE, 20. MARINE INSURANCE, 252 et seq. definition, 252. subject-matter of, 253. kinds uf, 258, 259. stamp on, 385. insurable interest necessary, 253, 254. what amounts to such interest, 254. the slip, ih. contents of a policy, ih. form of, ib. must be in writing, 9. the memorandimi, 255. rights and duties, 256. running down clause, ib. suing and labom-ing clause, 257. perils insured against, 256. dclav. 257, 264. deviation, 257, 258, 264. commencement of the risk, 257. re- insurance, 259. double insurance, tb. alteration of a policy, ih. how made, 259, 260. stamp duty, 260. losses. kinds of, ih. constructive total losses, 260, 261. adjustment of, 262. abandonment, 261. INDEX. 405 MAEINE INSURANCE— co«««Meitinued. determination of agency — continued. by operation of law, 128. miscellaneous, 129. duties of an agent, to do the work with care and skill, 129. what skill is necessary, ib. case of a gratuitous agent, 130. must act for principal's benefit, 131. must keep his accounts, 130. no secret profit allowed, 132, 133. double commission, 133, 134. must not ordinarily delegate, 135. of del credere agent, 160. rights of agent, remuneration, 136. when negotiations are fruitless, 137. indemnity, 138 et seq. lien, 141. right to stop in transitu, ib. right to an account, ib. authority of an agent, generally, 142, 143. to draw and accept bills, &c., 174. of brokers, 142, 157. of factors, 142, 154. of auctioneers, 142, 160. of counsel, 144. of partner, 232. powers of an agent, has whatever is necessary, 144. to receive money, ib. warranty of authority, 144, 151. rights of third parties, when principal is disclosed, 145. rights are generally against the principal, 145. agent liable, 146. parol evidence regarding this, 146, 149. when principal is undisclosed, contract may be adopted by or against principal or agent, 147. exceptions, 149. principal takes subject to equities of third party, 147, 148. when agent describes himself as principal, 148. if principal is non-existent, 151. agent's liability for torts, 152. but has an indemnity, 138, 152. mercantile agent, 155. And see The Factors Acts. making gaming contracts, 23. payment to, 46. signature to satisfy the Statute of Frauds, 90. concealment by, of material facts, 265. 410 INDEX. PROMISSORY NOTES, defiiiitiou, 20o. must be in writing, 9. form, 206. distinguislied from a bill of exchange, 206. history of, 104 ct seq. statute 3 & 4 Anne, IGG. liability of maker, 206. joint and several liability, ib. presentment for payment, 207. A>id see under Bills of ExcnANQK. stamp, 376. generally niles as to bills apply to notes, 207. exceptions, ib. PROPOSAL. Sec Peoposal ant) Acceptance. PROPOSAL AND ACCEPTANCE, may be express or implietl, 4. made to person who is to be aflPected thereby, 5. must be mutual, ib. must be accepted absolutely, ib. conditional assent, 5. may be good, though formal contract is to follow, 6. imacccptcd proposals, ib. withdrawal of proposal, ib. modes of acceptance, ib. revocation of proposal, 7 et seq. mistake, 74. RAILWAY COMPANY. See Caeriees. duties in relation to carriage, 274. Riiilway and Canal Traffic Acts, 274, 275, 276, 278. lost luggage, 277. RECEIPT, not a necessity, 49. procedure when debtor requires a, ib. under Stamp Act, 1870, ib. stamp, 386. RECEIPT TO SATISFY STATUTE OF FRAUDS, 86, RECOGNIZANCE, 1, 2. RECORD, contract of, 1, 2. RELEASE, 60, 61. RESCISSION OF CONTRACT, 71, 72, 76, 77. RESPONDENTIA, 329. INDEX. 411 RESTRAINT OF TRADE (CONTRACTS IN), consideration reqmred in every case, 3. generally not allowed, 19, 20. to what extent allowed, 20. SALE, CONTRACT OF, definition, 78. requisites, ib. thing sold, 78, 79. if not in existence at the time of sale, ib. capacity. See under Contract. price, 79. must be in money, ib. within meaning of sect. 17 of the Statute of Frauds, 89. who may sell, 80. market overt, 80, 81. negotiable securities, 81. horses, ib. pawnee, ib. agents, ib. Factors Act. See under Factoes Acts. Statute of Frauds, 83 et scq. And see under Feaxtds, Statute of. sample, sale by, as to Statute of Frauds, 87. conditions on, 94r. warranty on, 99. right to delivery, 92. time for delivery, 93. place of delivery, ib. delivery of exact amount requisite, ib. examples, 94. on whom loss falls pending delivery, 93. sale by description, 95. conditions, 54 et seq. 94, 95, 96. sale on approval, 95. rights and duties, (i) buyer, delivery, 92. damages on breach, 101. measure of damages, ib. extraordinary loss, ib. specific performance, 102. right to reject, 103. (ii) vendor, payment. See under Patdvient. damages, 103. passage of the property, specific chattels, 116. when sold conditionally, \\1 et seq. unspecified chattels, 120. miscellaneous, 121. 412 INDEX. SALE, CONTRACT OF— continued. sale of a British sliip, 321. lien of vendor. ISec under JjJES. re-sale, 115. stoppage in transitit, 105 ct seq. SALVAGE, 329. SAMPLE, Kilo by, 87 el seq. SCRIP, negotiability, 102. stamp, 382. SEAMEN, CONTRACTS CONCERNING, 291 el seq. formation of, 292, 293. requisites under tlie Merchant Shipping Acts, 292. implication of seaworthiness of ship, 293, 324. rights of the seaman, 293, 294. wages, 294. owner must pay, 325. depends no longer on freight, 294. may be forfeited, 295. lien for, 294. must be paid within a certain time, 294, 295. duties of a seaman, 295, 296. termination of the contract, 296. remedies, ib. SET-OFF, 42. SHIPPING. Sec Marine Iksueance ; Stoppage in Teaxsitu ; Ckaetkk-Paety ; Bill of Lading ; Seamen (Conteacts conceexing). definition of a British ship, 319. who may hold, 319, 320. registration, 319. conditions precedent, 319, 320. where and by whom registered, 320. declarations to be made by the owner, ib. on change of ownership, ib. certificate of survey, ib. builder's certificate, ib. register book, ib. certificate of registry, ib. must be carried by the ship, 323. ship's papers, ib. property in a British ship, 321. acquisition of, by bin of sale, 321. form, ib. by capture, 323. INDEX. fiKlFVIisG— continued. mortgage, form, 322. registration, ib. priorities, 322, 327, 328. power of sale, 322. discharge of, ib. And see BoTTOlTET. certificates of sale and mortgage, 322. log book, 32-i. owner, ib. must keep the ship seaworthy, ib. must appoint a proper master and crew, 324, 326. liable for loss in certain cases, 324, 325. must pay wages, 325. declarations to be made by, 320. co-owners, not always partners, 325. may transfer their shares, ib. disputes between, as to use of the vessel, 325, 32G. expenses, liabiKty to, 326. ship's husband, 325. general ship, 282. master of a ship, must be qualified, 326. duties of, ib. as to cargo, ib. powers of, hypothecation, ib. See Bottombt. sale, 326. transhipment, ib. discipline, 327. jettison, ib. barratrj-, 326. bottomry bond, 327. who may execute, 327, 328. no special form required, 327. duties of master before executing, 328. essentials of, 327. interest under, ib. efPect of, ib. as regards the cargo, 329. priorities, 327, 328. respondentia, 329. salvage, ib. SHIP'S HUSBAND, 325. SHIP'S PAPERS, 323. SPECIAL MANAGERS, 353. SPECIALTY CONTRACTS, 3. And sec Deed. SPECIFIC PERFORMANCE, 59, 102. 413 414 INDEX. STAMPS, 371 et seq. And see under the various headings. iustrument required to be stamped cannot be used in evidence unstamped, 371. duty of the officer of the Court, 372. penalty may cure the defect, ib. presumption when document is lost, ib. time of stamping, 372, 373. mode of stamping, 373, 374. appropriated .stamps, ib. valiiati(m of interest for the purpose of stamping, 373. cancellation of adhesive stamps, 374. laws not affected by the Bills of Exchange Act, 1882 . . 171. STATUTES, 2 & 3 Ph. & Mary, c. 7 (Horses, sale of), 81. 13 Eliz. c. 5 (Frauds on creditors), 73. 31 Eliz. c. 12 (Sale of horses), 81. 21 Jac. I. c. 16 (Limitations), 61, 62. 29 Car. 11. c. 3 (Statute of Frauds), 10, 83 c( xnj., 297. c. 7 (Sunday trading), 24. 4 Anne. c. 16. .62. 3 «fc 4 Anne, c. 9 (Promissory notes), 166. 7 Anne, c. 12 (Actions against ambassadors), 38. 7 Geo. II. c. 8 (Sir J. Barnard's Act), 23. 19 Geo. II. c. 37 (Insurance), 253. 14 Geo. III. c. 48 (Insurance), 246. c. 78 (Fire insurance, rebuilding), 250. 28 Geo. III. c. 56 (Insurance), 254. 7 Geo. IV. c. 66 (Joint stock), 37. 9 Geo. IV. c. 14 (Lord Tenterden's Act), 26, 63, 84. 11 Geo. IV. & 1 Will. IV. c. 68 (Land Carriers Act), 271, 275. 3 & 4 AVill. IV. c. 42 (Limitations), 61, 62, 63. c. 42 (Interest), 51. c. 98 (Legal tender in bank notes), 43. 1 & 2 Vict. c. 110 (Interest on judgments), 51. 8 & 9 Vict. c. 16 (Companies), 37. c. 106 (Real Property Amendment Act), 3, 9. c. 109 (Wagering Contracts), 22. 16 & 17 Vict. c. 59, s. 19 (Forged indorsements), 205. 17 & IS Vict. c. 31 (Railway and Canal Traffic Act), 274, 278. c. 104 (Merchant Shipping Act), 273, 274, 291— 296, 319—329. 18 & 19 Vict. c. Ill (Bdls of Lading Act), 209. 19 & 20 Vict. c. 97 (Mercantile Law Amendment Act), 11, 60 —62, 102, 225, 297, 299, 302. 20 & 21 Vict. c. 85 (Divorce and Matrimonial Causes Act), 31. 25 & 26 Vict. c. 63 (Merchant Shipping Act, 1862), 273, 318. c. 89 (Companies Aet, 1862), 171, 331. 28 & 29 Vict. c. 86 (BoviU's Act), 219—221. 29 & 30 Vict. c. 69 (Carriage of explosives), 269. 30 Vict. c. 23 (Marine policies), 9, 254, 255, 259, 260. 30 & 31 Vict. c. 29 (Leeman's Act), 24. c. 124 (Merchant shipping), 294. INDEX. 415 STATUTES— continued. 30 & 31 Vict. c. 131 (Companies Act, 1867), 36. c. 144 (Assignment of life policies), 248. 31 & 32 Vict. c. 119 (Regulation of Railways Act), 276. c. 86 (Assignment of marine policies), 253. 32 & 33 Vict. c. 46 (Administration), 3. c. 62 (Debtors Act, 1869j, 342, 351. 33 Vict. c. 10 (Coinage Act, 1870), 43. 33 & 34 Vict, c 23 (Abolition of forfeiture), 38. c. 60 (Brokers Act, 1870), 158. c. 93 (Married "Women's Property Act, 1870), 32, 34, 47. c. 97 (Stamp Act, 1870), 49, 171, 293, 371 ct seq. 34 & 35 Vict. c. 4 (Inland Revenue, 1871), 381. 35 & 36 Vict. 0. 85 (Merchant shipping), 292. c. 93 (Pawnbrokers Act), 309. 36 & 37 Vict. c. 66 (Judicature Act, 1873), 40, 325. c. 85 (Merchant shipping), 320. 37 & 38 Vict. c. 50 (Married Women's Property Act, 1874), 34. c. 62 (Infants' Relief Act), 29, 216. 38 & 39 Vict. c. S3 (Judicature Act, 1875), 3. 39 & 49 Vict. c. 80 (Merchant shipping), 293. 41 & 42 Vict. c. 38 (Bills of Sale Act, 1878), 310, 330 et seq. 44 & 45 Vict. c. 12 (Inland Revenue, 1881), 374. c. 41 (Conveyancing Act, 1881), 40, 47. 45 & 46 Vict. c. 43 (Bills of Sale Act, 1882), 310, 314 et seq. c. 61 (Bills of Exchange), 50, 170 et seq. c. 75 (Married "Women's Property Act, 1882), 32, 34, 47, 247. 46 & 47 Vict. c. 52 (Bankruptcy Act, 1883), 73, 330 ei seq. 50 & 51 Vict. c. 67 (Deeds of Arrangement Act, 1887), 369. c. 66 (Bankruptcy Closure Act), 330. 51 Vict. c. 8 (Inland Revenue 1888), 372, 380, 382—386. 51 & 52 Vict. c. 25 (Railway and Canal Traffic Act), 278. c. 62 (Preferential payment in bankruptcy), 364, 365. 52 & 53 Vict. c. 42 (Inland Revenue, 1889), 380, 385. c.45(FactorsAct,1889), 81, 82,105,113,154 e^sf;^. STOPPAGE IN TRANSITU, definition, 105. does not rescind sale, ib. is more than a lien, ih. who may exercise, 106, 107, 141. what is an " unpaid vendor," 106. against whom may be exercised, 107. when can be exercised, ib. "■ transitus," meaning of, 107 et seq. destination, meaning of, 110 et seq. defeated by, 113. pledge, ib. right must be exercised against the goods themselves, 114. 416 INDEX. SURETY. See Guarantee. liability of, 298. rights of, to true information, 300. that co-surety should join, 301. to have the principal contract unaltered, 301, 304, 305. payment from debtor, 301. to have all advantages possessed by creditor, ib. creditor's securities, 302, 303. creditor must prove his case, 301. continuing guarantees, 298, 299. discharge of, by alteration of the original contract, 304, 30o. by extension of time to the debtor, 305, 306, by laches on the part of the creditor, 307. by discharge of the principal debtor, ib. death of the surety, ib. TENDER, what amounts to, 50. Coinage Act, 1870. .43. bank notes, ib. no change can be demanded, ib. who may make, 50. to whom it may be made, ib. imDUE INFLUENCE, 77. VENDOR. Sec under Sale, Contract of. WAIVER, 41, 60. in the case of a bill, 196. WARING, EX PARTE, rule in, 200. WARRANTY, difference between, and a condition, 54 et seq., 95. and a description or opinion, 96. express warranty, 97. impKed warranty, of title, 97. of quality, 98. caveat emptor, 98. on sale by sample, 99. where no opportunity for the buyer to inspect, 100. by custom, 101. in policies of insurance, 245, 263. of authority, 144. LONDON : C. F. EOWORTH, GREAT NEW STREET, FEITER LANE. CATALOGUE MLaSii m^ovM PUBLISHED BY MESSRS. BUTTERWORTH, TO THE QUEEN'S MOST EXCELLENT MAJESTY, AND TO H.R.H. THE PRINCE OF WALES. " Now for the Laws of England {if I shall speak my opinion of them without '^partiality either to my profession or country), for the matter and nature of '* them, I hold them wise, just and moderate laws: they give to God, they give to " Ccesar, they give to the subject what appertaineth. It is true they are as mixt " OS our language, compounded of British, Saxon, Danish, Norman customs. " And surely as our language is thereby so much the richer, so our laws are lihe- " wise by that mixture the more complete." — Lord Bacon. LONDON : 7, FLEET STEEET, E.G. 1890. INDEX TO CATALOGUE. 10 ... 19 1 Settle- Page Accounts. Pulling 36 Action, Common Law. Boyle 13 Admiralty Practice, Coote 19 Advowsons. Mirehouse 37 Agricultm-al Holdings Act. Bund Alabama Case. O'Dowd Aliens. Cutler Ancient Land ment. Bund 38 Appeals, House of Lords Denison & Scott ... 6 Arbitration. Redman 20 Articled Clerks' Hand- book. Mosely Average, General. Crump Awards. Redman Bankniptcv. Brett../ Bulley&Bund Linklater Banks and Banking Grant Barbados. Laws of . . Bar Education. Smith Bar Examination Journal BiUs of Sale. Hunt Macjiskie 27 j Probj-n 5 Blockade. Deane 37 Bonds, Probate. Chadwick 8 Page Bookkeeping, Solici- tors' . Coombs 28 Boundaries. Hunt 33 Burgesses' Manual. Gacbes 38 Carriers, Inland. Powell 10 Chamber Practice. Parkinson 38 Chancery Practice. Undeiliill 15 Chart of Landed Pro- 18 34 Page Constitutional History. Fulton 17 Contentious Probate Practice. Tristram Contraband of War Moseley Twiss Contracts. Plumptre Contributories. Collier 11 23 perty. Feame 38 12 1 Church Building Acts. Trower 29 Church Seats. Healea 28 Civil Seiwice of India. Cutler 34 Claims and Defences. Dre-wTy 7 Club Law. Daly Commentaries. Blackstone's ... 5 Stephen's 5 Commentaries on Inter- national Law. Phillimore 14 Commercial Law. Stevens 35 Common Law Action. Boyle.. 13 Common Law Practice. Lush 36 Companies, Banking. Grant 12 Companies, Joint- Stock Shelf ord ... ... 7 Companies, Railway. Shelf ord 12 Compensation for Land . Ingram 24 Consistory Court, Lon- don. Rules and Regiila- 33 23 14 18 40 tions 36 Conveyancing. Barry Lewis Rouse Conveyancing Act, 1881 Clerke & Brett ... 32 Conveyancing Drafts- man. Kelly 20 Co-operative Societies. Brabrook 28 Copyholds. Brown 16 Scriven 16 Corporation Duty. Hewitt Costs. Gray 36 County Court Practice. Davis 8 Criminal Consolida- dation Acts. Davis 25 Debtors Estates. Pye 11 Defences and Claims. Drewry 7 Designs. Lawson 25 Dictionary, Law. Mozley & Whiteley 9 Divorce. Bedford 13 Browning 34 Domestic Servants. Baylis 26 INDEX TO CATALOGUE. Page . Draftsman, Convey- ancing. KeUy 20 Ecclesiastical Law. 39 Employers and Work- men. Davis 6 Employers' Liability Act. Rueg? 32 England, Laws of. Stephen 5 English Appeals. Denison & Scott ... 6 English Law. Fi-ancillon 38 Nasmith 16 Epping Forest. Fisher 5 Equity. Drewry 27 Roberts 7 Trower 9 UnderhiU 15 Equity, Claims and Defences. Drewry 7 Equity in relation to Law. Chute 8 E^'idence. PoweU _ ... _ ... 6 Examination Guide. Bedford 13 Execution. Anderson 7 Fences. Hunt 33 Fishery Laws. Bund 29 Oke 31 Foreshores. Hunt 33 O'Dowd 36 Forest of Essex. Fisher 5 Foi-m of the Law. HoUand 35 Frauds. Hunt 10 Freedom of Land. UnderhiU ... ... 35 French Commercial Code. Mayer 7 Game Laws. Oke 30 Page Gaming. Daly 12 Gas & Water Supply. Michael &WiU ... 22 General Average. Crump 6 Guarantees. DeColyar 9 Hand Book for Articled Clerks. Mosely IS House of Lords, Ap- peals. Denison & Scott ... 6 Husband and Wife. Edwards & Hamilton 13 Income Tax Laws. DoweU _ 25 Corporation Duty. Hewitt 40 Indian Law. Cutler & Griffin ... 18 Indiistrial Societies. Brabrook 28 Inns of Court. Pearce 37 Institutes of English Law. Nasmith 16 Insurance, Marine. Crump 6 International Law. Hamel 36 Phillimore 11 Irish Appeals. Denison & Scott ... 6 Joint Stock Companies. Shelford 7 Judicatui'e Acts. Bedford 13 Labour Laws. Davis 6 Landlord and Tenant. Fawcett 10 Land Law. Land Laws 35 Uuderliill 35 Law Dictionary. Mozley & Wliiteley . 9 Law Examination Journal . . . . 19 Leading Cases, Real Property. Tudor 17 ... 26 10 Page Legacy Duties Shelford ... Libel. Folkard Licensing Laws. Oke 31 Local Government Act, 1888. Ryde& Thomas ... 6 Locus Standi Reports. Clifford & Rickards 21 CUfford & Stephens. 21 Lord Lyndhurst. Gibson 37 Lunacy. Phillips 34 Magisterial Formulist. Oke 31 Magisterial Synopsis. Oke 30 Marine Insurance. CiTimp 6 Marriage. Edwards & Hamilton 13 Married Women's Pro- perty Acts. Edwards & Hamilton 13 Mozley 38 Masters and Servants. Baylis 26 Masters and Workmen. Davis 6 Mayor's Court. Glyn, Probyn, & Jackson ... ... 13 Mercantile Accounts. PulHng 36 Mercantile Law. Stevens _ 35 Mines and Minerals. Bainbridge 16 Mortgages. Fisher 12 Municipal Registration Davis... 22 Natiu'ali zation . Cutler 19 Naval Prize Law. Lushmg-ton 27 Negligence. Saunders .21 Parliamentary Practice. May 17 Parliamentary Regis- tration. Davis Saint . • 22 - 38 a2 INDEX TO CATALOGUE. Page Partition Act. La-wTcnce 29 Partnership. Dixon 22 Pothier 37 Patents. Hippins 25 Lawson 25 Norman 37 Waggett 28 Pews. Hcales 28 Pitfalls of Testators. Flood 14 Pleading. Chitty 36 WUliams 37 Preliminary Exami- nation Journal. Benham 34 Principal and Surety. DeColyar 9 Private Bill Legis- lation. Clifford 5 Prize Law, Naval. Lushington 27 Probate and Divorce. Bedford 13 Probate Bonds. Chadwick 8 Probate Duties. Shelf ord 26 Probate Practice. Tristram & Coote ... 11 Public Meeting. 19 Page Railway Carriers. Butterworth & Ellis 6 PoweU 10 Railways. Shelf ord 12 Real Property. Tiidor 17 Real Property Act. aerke& Brett ...32 Referees' Practice. Clifford & Kickards ... 21 Clifford A: iSttphens ... 21 Rickard A: Michael 21, 4« Registration. Da\-is 22 Saint 38 Roman Law. Gaius 27 Ortolan 20 Tomkins 26 History of. Nasmith 40 Sale, Bills of. Macaskie 27 Salmon Fisheries. Bund 29 Scotch Appeals. Denison & Scott ... 6 Settled Land Acts. Underbill 15 Sheriff. Anderson 7 Sewell 38 Shorthand. Gnmey 21 Slander. Folkard 11 Solicitors' Bookkeeping Coombs 28 Page Stock Exchange. Keyser 3 Succession Duties. Shelford 26 Surety and Principal. De Colyar 9 Tariffs. Hertslet 24 Torts. UnderhiU 15 Town Councillors' Manual. Gaches 38 Trade Marks. Lawson 25 Treaties. Hertslet 24 40 Trusts and Trustees. Underbill 15 Turnpikes. Oke 31 Vendors & Purchasers. Seaborne 26 Water and Gas Supply. Michael & Will ... 22 Wife and Husband. Edwards A: Hamilton 13 Wills. Flood 14 Wigram 29 Winding-up. Collier 33 Wrongs. Underbill 15 ( 5 ) Jnto Moxh pMx%hth bg "^(^hxh. guttcitr0rtlj. STEPHEN'S NEW COMMENTARIES.-lOth Edit. Mr. SEEJEANT STEPHEN'S NEW COMMEN- TAEIES ON THE LAWS OF ENGLAND, partly founded on Blackstone. By His Honour Judge Stephen. The Tenth Edition. 4 vols. 8vo. 4?. 4s. cloth. 1886 *«* The "Work selected for the Intermediate Examinations for Solicitors for 1890. From the "Law Times." "Our old familiar friend, Stephen's From the "Law Student's Journal." Commentaries on the Laws of Eng-Iand, , ^ . ,, , i v • ; „< comes to us in a handsome blue binding, Thi^ weU-kno^ra work bemg just in its tenth edition. The Editor is now the established subject for study Mr. Aichibald Brora, and, when we for th. buhcitors' Intermediate Exami- rememberthe amount of excellent work nation, tends, of course, to its more this g-entleman has done in the literature speedy sale. Besides, it is indeed m of the law, his name is a goiarantee that P^ny senses a wonderful and a useful nothing has been omitted which was ^O"^^ contammg, as it does, somethmg necessaiT to insert to bring Stephen on nearly ever)thmg. The preparation down to the date of publication. We of this edition has, we are mf urmed m should have to repeat Mr. Brown's the preface, been entrusted to that la- preface if we detailed the additious and borious compiler and editor of lawbooks, amendments which he has made. All ^^- Archibald Brown, though, for some that we need do is to assure the Pro- reason, his name does not appear on the fession that, havin- examined these title-page. Mr. Brown has had great ex- volumes, we find them all that could penence m this way, and we are rnchned be desired, without any appreciable in- *« .^^^^"T, ^'"^ ^tetement that he has crease in bulk-a really great considera- P^fd sedulous attention to the wants tion, having regard to the enormous both of the profession and of students, gro-wth of statute and case law." FISHER.— THE FOREST OF ESSEX. THE FOEEST OF ESSEX: its History, Laws, Ad- ministration, and Ancient Customs, and the Wild Deer which lived in it ; ^dth Maps and other Illustrations. By William Richard Fisher, of Lincoln's Inn, Barrister-at-Law, Author of " The Law of Mortgage and other Securities upon Property." Just published. In 1 vol. crown 4to. 1/. los. roxburgh binding. ^ 1887 CLIFFORD'S PRIVATE BILL LEGISLATION. A HISTOEY OF PEIVATE BILL LEGISLATION. By Frederick Clifford, of the Middle Temple, Barrister-at- Law. In Two Volumes. 8vo. 21. los. cloth. 1885 — 1887 *»* May be had separately, Vol. 1, 20s.; Vol. 2, 35s. cloth. PROBYN'S STATUTORY FORM OF BILL OF SALE. STATUTOEY FOEM OF A BILL OF SALE, with FOEMS OF, AND EULES FOE DEAWING SAME, also a Digest of all the Eeported Cases. By L. Probyn, Esq., of the Middle Temple, Barrister-at-Law. Just published. In post 8vo. 3s. cloth. 1888 6 LAW WORKS PU BUSHED BY RYDE & THOMAS' LOCAL GOVERNMENT ACT. THE LOCAL GOYERN^IENT ACT, THE C0T:NTY KLECTOliS ACT. INSS, THE MUNICIPAL COEl'OEA- TK^NS ACT, 18«2, with full Explanatory Notes and an In- troduction ; an A^ipendix containinj; the Acts incorporated therewith, and a Cojiious Index. By Walter C. Ryde, M.A., of the Inner Toni])le. and E. T^EWis Thomas, M.A., LL.M., of Ijincoln's Inn and tln' Midland Circuit. Barristers-at-Law. Just published, in 1 vol., 8vo., '.Ms. cloth. 1888 BUTTERWORTH ON RAILWAY RATES & TRAFFIC. A THEATI8E UN THE LAW DELATING TO KATES AND TKAIHTC ON KAILW.VY8 AND CANALS, with special reference to the Railway and Canal Traffic Act, 1888, and an Appendix of Statutes, Rules, &c. By A. Kaye Buttek- woiiTH. IjL.B., of the Great Western Railway, Solicitor; assisted by C. E. Ellis, B.A., of the Inner Temple, Barrister-at-Law. Just published, in 1 vol.. medium Svo., I6s. cloth. 1SS9 POWELL ON EVIDENCE. By CUTLER & GRIFFIN. Fifth Edition. rOWELL'S riHNCIPLES aud TliACTICE of the LAW of EVIDENCE. Fifth Edition. By J. Cutler, B.A., Professor of Enj?lish Law and Juri-sprudence, and Professor of Indian Jurisprudence at Kinjy's College, London, and E. F. Griffix. B.A., Barristers-at-Law. Post Svo. 20,s. cloth. 1885 DENISON AND SCOTT'S HOUSE OF LORDS APPEAL PRACTICE. APPEALS TO THE HOUSE OF LORDS: Procedure and Practice relative to English, Scotch and Irish Appeals; with the Appellate Jurisdiction Act, 1870; the Standing Orders of- the House ; Directions to Agents ; Fonns, and Tables of Costs. Edited, with Notes, References and a fidl Index, forming a complete Book of Practice under the New Appellate System. By Chas. Marsh De:xisox and Chas. Hexdersox Scott, of the MiddleTemple,Esqs., Barristers-at-Law. Svo. 16s. cloth. 1879 DAVIS'S LABOUR LAWS OF 1875. THE LABOUP LAWS OF 1875, with Introduction and Notes. By J. E. Davis, Esq., Barrister-at-Law, and late Police Magistrate for Sheffield. 8vo. 12s. cloth. 1875 CRUMP'S PRINCIPLES OF MARINE INSURANCE THE PRINCIPLES OF THE LAW RELATING TO MARINE INSURANCE AND GENER.IL AVERAGE in England and America, with occasional references to French and German Law. By F. Octavius Cbitmp, of the Middle Temple, Esq., Barrister-at-Law. In 1 vol. royal Svo. 21s. cloth. 1875 a MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 7 ANDERSON'S LAW OF EXECUTION. A TEEATISE ON THE LAW OF EXECUTION in the High Coiu-t and Inferior Courts ; including the Powers, Duties, and Liabilities of the Sheriff, the High Bailiff, the Bishop, and other Executive Officers. I3y T. Kerr Anderson, LL.B., Barrister-at-Law. Just published, demy 8vo., 32s. cloth. MAYER'S FRENCH CODE OF COMMERCE. THE FEENCH CODE OF COMMEECE, as revised to the end of 1886, and an Appendix containing later Statutes in connection therewith, rendered into English, with Explanatory Notes and Copioiis Index. By Sylvain Mayer, B.A,, Ph.D., of the Middle Temple, Esq., Barrister-at-Law. Just published, post 8vo., 9s. cloth. 1887 SHELFORD'S JOINT STOCK COMPANIES.— Second Edition by PITCAIRN and LATHAM. SHELFOED'S LAW of JOINT STOCK COMPANIES, containing a Digest of the Case Law on that subj ect ; the Com- panies Acts, 1862, 1867, and other Acts relating to Joint Stock Companies ; the Orders made under those Acts to regulate Pro- ceedings in the Court of Chancery and County Courts ; and Notes of all Cases interpreting the above Acts and Orders. Second Edition, much enlarged, and bringing the Statutes and Cases down to the date of pulalication. By D. Pitcairn, M.A., of Lincoln's Inn, Barrister-at-Law, and F. L. Latham, B.A., Oxon, of the Inner Temple, Barrister-at-Law. 8vo. 21s. cloth. 1870 DREWRY'S FORMS OF CLAIMS AND DEFENCES. FOEMS OF CLAIMS AND DEFENCES IN CASES intended for the CHANCEEY DIVISION OF THE HIGH COURT OF JUSTICE. With Notes, containing an OutHne of the Law relating to each of the subjects treated of, and an Appendix of Fonns of Endorsement on the Writ of Summons. By C. Stewart Drewry, of the Inner Temple, Esq., Barrister- at-Law, Author of a Treatise on Injunctions, and of Eeports of Cases in Equity, temp. Kindersley, V.-C, and other works. Post Svo. 9s. cloth. 1876 ROBERTS' PRINCIPLES OF EQUITY.— Third Edition. THE PEINCIPLES OF EQUITY as administered in the SUPREME COURT OF JUDICATURE and other Courts of Equitable Jurisdiction. By Thomas Archibald Roberts, of the Middle Temple, Esq., Barrister-at-Law. Third Edition. Svo. 18s. cloth. 1877 LAW WORKS PUBLISHED BY DAVIS'S PRACTICE OF THE COUNTY COURTS.— Sixth Edition. THE PRACTICE OF THE COUNTY COUETS.— By James Edward Davis, of the Middle Temple, Barrister-at- Law. The Sixth Edition (including the New County Court Rules, and the New Consolidated Bankruptcy Rules), edited by S. M. Rhodes, of the Inner Temple, Banister-at-Law. Just Published in 1 thick vol. demj' Svo., price 45s. 1886 BRETT'S BANKRUPTCY ACT, 1883. THE BANKliUrTCY ACT, 1883: with an Introductory Chapter, Notes, Index, &c. And SUPPLEMENT containing a Table showing the parts of the Act and Rules which are to be read together : a SUMMARY of the points of importance con- tained in the Rules, and the Table of Fees of the 28th Decem- ber, 1883. By Thomas Brett, LL.B., London University, B.A., Exhibitioner in Real Property and Equity, and Holder of the First Certificate of Honour, Michaelmas, 1869, and Joint Editor of " Clerke and Brett's Conveyancing Acts." In 1 vol. Post 8vo. 14s. cloth. 1884 *»* Supplement only, \s. 6d. CHAD WICK'S PROBATE COURT MANUAL. Corrected to 1876. EXAMPLES of ADMINISTEATION BONDS for the COURT of PROBATE ; exhibiting the principle of various Grants of Administration, and the correct mode of preparing the Bonds in respect thei'eof ; also Directions for prepaiing the Oaths; arranged for practical utility. With Extracts from Statutes ; also various Forms of Afiinnation prescribed by Acts of Parliament, and a Sup- plemental Notice, bringing the work dowa to 1876. By Samuel CHADWiCK,of her Majestj^'s Court of Probate. Roy. 8vo. 12s. cloth. CHUTE'S EaUITY IN RELATION TO COMMON LAW. EQUITY UNDEE THE JUDICATUEE ACT, or the Relation of Equity to Common Law. By Chaloner Willlam Chute, Ban-ister-at-Law; FeUow of Magdalen College, Oxford; Post 8vo. 9s. cloth. 1874 MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 9 MOZLEY AND WHITELEY'S CONCISE LAW DICTIONARY. A CONCISE LAW DICTIONAEY, containing Short and Simple Definitions of the Terms used in the Law. By Herbert Newmaj^ Mozley, M.A., Fellow of King's College, Cambridge, and of Lincoln's Inn, Esq., and George Crispe Whiteley, M. a. , Cantab, of the Middle Temple, Esq. , Barristers- at-Law. Li 1 vol. 8vo. 20s. cloth; 255. brown calf. 1876 "This book is a gi-eat deal more " This book contains a large mass of modest in its views than the law die- information more or less useful. A tionary we reviewed a little while ago. considerable amount both of labour and Its main object is to explain briefly learning has evidently been expended legal terms, both ancient and modem. upon it, and to the general public it may In many cases, however, the authors be recommended as a reliable and use- have added a concise statement of the ful guide. Law students desirous of law. But, as the work is intended both cramming vrUl also find it acceptable." for lawyers and the public at large, it — Law Times. does not profess to give more than an " It should contain eveiything of outline of the doctiinesrefeiTed to imder value to be found in the other larger the several headings. Having regard to works, and it should be useful not this design, we think the work is well merely to the legal profession, but also and carefully edited. It is exceedingly to the general public. Now, the work complete, not only giving terse explana- of Messrs. Mozley and Whiteley appears tions of legal phi'ases, but also notices of to fulfil those very conditions ; and, leading cases and short biographies of while it assists the lawyer, will be no legal luminaries. We may add that a less useful to his client. On the whole, veiyconvenient table of reports is given, we repeat that the work is a praise- showing the abbre\'iations, the date and worthy peformance wliich deserves a the court, and that the book is very well place in the libraries both of the legal printed." — Solicitors^ Journal. profession and of the general public." — Irish Law Times. DE COLYAR'S LAW OF GUARANTEES. 2nd Edit. A TEEATISE ON THE LAW OF GUAEANTEES and of PEINCIPAL and SUEETY. By He>-ry A. De Colyar, of the Middle Temple, Barrister-at-Law. Second Edition. 16s. cloth. 1885 " Mr. Colyar's work contains internal " The whole work displays great care evidence that he is quite at home with his in its production ; it is clear in its state- subject. His book has the great merit of mcnts of the law, and the result of the thoroughness. Hence its present value, many authorities collected is stated and hence we venture to predict will be with an intelligent appreciation of the its enduring reputation." — Law Times. subject in hand." — Justice of the Peace. TROWER'S PREVALENCE OF EQUITY. A MANUAL OF THE PEEVALENCE OF EQUITY, under Section 25 of the Judicature Act, 1873, amended by the Judicature Act, 1875. By Charles Francis Trower, Esq., M.A., of the Inner Temple, Barrister-at-Law, late Fellow of Exeter College, and Vinerian Law Scholar, Oxford, Author of " The Law of Debtor and Creditor," " The Law of the Building of Chm-ches and Divisions of Parishes," &c. 8vo. 5s. cloth. 1876 " The amount of information con- whole it appears to be accurate. The tained in a compressed foi-m within its work has been carefully revised, and is pages is very considerable, and on the well and clearly printed."— iaw Times. 10 LAW WORKS PUBLISHED BY FAWCETT'S LAW OF LANDLORD AND TENANT. A COMPENDIUM OF THE LAW OF LANDLOED AND TENANT. By William Mitchell Fawcett, Esq., of Lincoln's Inn, Barrister-at-Law. 1 vol. Svo. 14s. cloth. 1871 " This now compendium of the law on tions, and uses lanfiruage as untechnical a wde and complicated suliject. upon as the subject admits." — Law Journal. wliicli inl'Dnnatiou is constantly re- " Mr. Fawcett takes advantage of this quired liy a vast number of pi-rsons, is characteristic of modem law to impart sure to be in reijucst. It never wanders to his compendium a depree of authen- froiii tlic point, and btinfj intended not Notes. " We heartily recommend the work to practitioners." — Law Student's Journal. 12 LAW WORKS PUBLISHED BY DALY'S CLUB LAW.- Second Edition. CLUB LAW AND THE LAW OF UNEEGISTEEED FEIENDLY SOCIETIES : a Handbook of the Rights and Liabilities of Officers and Members of Clubs, and other Unregis- tered Societies, inter so, and as regards Strangers ; Procedure in Actions bj' or against ; Gambling ; Drinking ; Leading Cases, iSrc. By UoMiNiCK Daly, of the Inner Temple and Midland Circuit, Barrister-at-Law. '2nd Ed. Justpublished, fscap.8vo. 3s. 6f/. cloth. SHELFORD'S RAILWAYS.— Fourth Edition, by Glen. SHELKORD'S LAAV OF RAILWAYS, containing the whole of the Statute Law for the Eegulation of Railways in England, Scotland and Ireland. "With Copious Notes of Decided Cases upon the Statutes, Introduction to the Law of Eailwaj's, and Appendix of Official Documents. Fovu-th Edition, by "W. CrxxiXGUAM Glen, Barrister-at-Law, Author of the "Law of Highways," "Law of Public Health and Local Govern- ment," &c. 2 vols, royal 8vo. 63^. cloth; 75?. calf. 1869 GRANT'S BANKERS AND BANKING COMPANIES. Fourth Edition. By C. C. M. PLUMPTRE. GRANT'S TREATISE ON THE LAW RELATING TO BANIvEES AND B^^^KING COMPANIES. With an Appendix of the most important Statutes in force relating thereto. Fourth Edition. With Supplement, containing the Bills of Exchange and Bills of Sale Acts, 1882. ByC.C.M.PLUMPTRE, of the Middle Temple, Esq., Barrister-at-Law. 8vo. 29s. cloth. *,* The Supplfmrnt may ht hud sepdrntfly, price ^s. sewed. " Eight yeai-s sxiJiiced to exhaust the tlie sterling' merits which have ac- se('(3iid edition of this valuaMe and quired for it the higrh position which it standard work, we need only now holds in standard legal literature. Mr. notice the improvements which have Fisher has annotated all the recent been made. "We have once more looked cases." — Law Times. through the work, and recognize in it FISHER'S LAW OF MORTGAGE— Fourth Edition. The LAW of MORTGAGE and OTHER SECURITIES UPON PEOPEETY. By Willl\m Eichaed Fisher, of Lincoln's Inn, Esq., Barrister-at-Law. Fourth Edition. 1vol. roy. 8vo. 52s. 6f/. cloth. " This work has built up for itself, in prove most useful reading for the stu- the experienced opinion of the prof es- dent, both as a storehouse of informa- sion, a very high reputation for careful- tion and as intellectiial exercise." — ness, accuracy and lucidity. Thisrepu- Law Magazine. tation is fidly maintained in tlie present " We have received the third edition edition. The law of securities upon of the Law of Mortgage, by William property is confessedly intricate, and, Richard Fisher, Bairister-at-Law, and probably, as the author justly observes. we are verj- glad to find that vast im- embraces a gTcater vaiietj- of learning provements have been made in the plan than any other single branch of the of the work, which is due to the incor- English "law. At the same time, an poration therein of what Mr. Fisher acciuate knowledge of it is essential to designed and executed for the abortive every practising barrister, and of daily Digest Commission. In its present requirement amongst solicitors. To all fonn. embracing as it does all the sta- such we can confidently recommendMr. tuteandcaselawtothepresenttdme.the Fisher's work, which" will, moreover, work is one of great value." — Law Times. MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 13 EDWARDS AND HAMILTON'S LAW OF HUSBAND AND WIFE. THE LAW OF HUSBAND AND WIFE : with sepa- rate chapters upon Marriage Settlements, and the Married Women's Property Act, 1882. By JoHX William Edwards and William Frederick Hamilton, LL.D., Esquires, of the Middle Temple, Barristers-at-Law. In 1 vol. post 8yo. 16s. cloth. 1883 BOYLE'S PRECIS OF AN ACTION AT COMMON LAW. PEECIS of an ACTION at COMMON LAW, showing at a Glance the Procedure under the Judicature Acts and Eules in an Action in the Queen's Bench, Common Pleas and Ex- chequer Divisions of the High Court of Justice. By Herbert E. Boyle, SoHcitor. 8vo. 5s. cloth. 1881 GLYN, PROBYN, AND JACKSON'S MAYOR'S COURT PRACTICE. THE JUEISDICTION AND PRACTICE OF THE MAYOR'S COUET, together with Appendices of Forms and of the Statutes specially relating to the Court. By L. E. Glyn and L. Probyn, Esquires, Barristers-at-Law ; and F. S. Jackson, Esquire, Barrister-at-Law {Deputy Registrar). In 1 vol. 8vo. 15s. cloth. 1888 BEDFORD'S FINAL EXAMINATION GUIDE TO PROBATE AND DIVORCE.— Snd Edition. THE FINAL EXAMINATION GUIDE to the LAW of PROBATE and DIVORCE : containing a Digest of Final Examination Questions with the Answers. By E. H. Bedford, Solicitor, Temple, Author of the " Final Examination Guide to the Practice of the Supreme Court of Judicature." In 1 vol. post 8vo. 6s. cloth. BEDFORD'S FINAL EXAMINATION GUIDE. THE FINAL EXAMINATION GUIDE TO THE PRACTICE of the SUPREME COURT of JUDICATURE, containing a Digest of the Final Examination Questions, with many New Ones, with the Answers, under the Supreme Court of Judicature Act. By Edward Henslowe Bedford, Solicitor, Temple. In 1 vol. 8vo. 7s. Qd. cloth. 1875 14 LAW WORKS PUBLISHED BY FLOOD ON MAKING WILLS. THE PITFALLS OF TESTATOES. A Few Hints about the Making of Wills. By John C. H. Flood, of the Middle Temple, Esquire, Barrister-at-Law. 1 vol. post 8vo. OS. cloth, 1884 LEWIS'S INTRODUCTION TO CONVEYANCING. FKINCTPLES OF CONVEYANOINCi EXPLAINED and ILLUSTRATED by CONCISE PRECEDENTS. With an Appendix on the Effect of the Transfer of Land Act in Modifj-ing and Shortening Conveyances. By Hubert Lewis, B.A., late Scholar of Emmanuel College, Cambridge, of the Middle Temple, Barrister-at-Law. 8vo. 18s. cloth. 1863 PHILLIMORE'S INTERNATIONAL LAW.— 3rd edit. fo/. I. 8(7). 'lis. cloth ; Vul. 11. 'JtU. ,lnth ; J'o/. ///. 36«. cloth ; Vol. IV. 36.S-. cloth. COMMENTARIES ON INTERNATIONAL LAW. By the Right Hon. Sir Robert Phillimore, Knt., P.C, Judge in the Probate, Matrimonial, Divorce and Admii*alty Division of the High Court of Justice. 1879—1889 Ext raft from Pomphlrt oil ^'Amerkayi Xeulrality," hy George Bemis [Boston, U.S.). — " Sir Robert Pliillimoi-e, the present Queen's Advocate, and author of the most comprdumsive and systematic 'Commentaries on International Law' that England has pi'oduced." ' The iiuthority of this work is admit- tedly great, and the leaminf? and ability displayed iu its preparation have been reci)frni:!ed by WTitei-s on public law both on the Continent of Em-ope and in the United States. With tliis necessarily imperfect sketch we must conclude our notice of the first volume of a work which forms an important contribution to the literature of public law. The book is of great utility, and one which should And a place in the library of every civilian." — Law Magazhf. " it is the most complete repository of matters beai'ing upon international law that we have in the language. We need not repeat the commendations of the text itself as a treatise or series of treatises which this journal expressed upon the appearance of the two tirst volumes. The reputation of the Author is too well established and too widely known. We content ourselves with tes- tif jing to the fulness and thoroughness of the work as a compilation after an inspection of the three volumes. ,{2nd edition)." — Boston [United States) Daily Advertiser. " Sir Robert PhiUimore may weU be proud of this work as a lasting record of his ability, learning and his industry. Having read the work carefully and critically, we are able to highly recom- mend it." — Law Journal. " The second edition of Sir Robert PhiUimore' s Conunentaries contains a considerable amount of valuable addi- tional matter, bearing more especially on questions of international law raised by the wars and contentions that have broken out in the world since the pub- lication of the first edition. Having upon a former occasion discussed at some length the general principles and execution of this important work, we now propose to confine ourselves to a brief examination of a single question, on which Sir Robert PhiUimore may justly be regarded as the latest autho- rity and as the champion of the princi- ples of maritime law, wliieh, down to a recent period, were maintained by this country, and which were at one time accepted without question by the mari- time powers. Sir Robert PhiUimore has examined with his usual learning, and established without the pos-sibility of doubt, the history of the doctrine ' free ships, free goods,' and its opposite, in the third volume of his 'Commen- taries' (p. 302] ." — Edinhurgh Bevieu; Xo. 296, October, 1876. MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 15 UNDERHILL'S GUIDE TO EQUITY. A CONCISE GUIDE TO MODERN EQUITY. Being a Course of Nine Lectures delivered at the Incorporated Law Society during the Year 1885 : Eevised and Enlarged. By A. Underhill, M.A., LL.D., of Lincob^'s Inn, Esq., Barrister- at-Law. 1 vol. post 8vo. 9s. cloth. 1885 UNDERHILL'S SETTLED LAND ACTS.— 2nd Edition. THE SETTLED LAND ACTS, 1882 & 1884, and the HULES of 1882, -s\4th an Introduction and Notes, and Concise Precedents of Conveyancing and Chancery Documents. By A. UxDERHiLL, M.A., LL.D., of Lincoln's Inn, Barrister-at- Law. Assisted by E. H. Deane, B.A., of Lincoln's Inn, Barrister-at-Law. 2nd Edit. 1 vol. post 8vo. 8s. cloth. 1885 UNDERHILL'S CHANCERY PROCEDURE. A PRACTICAL and CONCISE MANUAL of the PRO- CEDUEE of the CHANCEEY DIVISION of the HIGH COUET of JUSTICE, both in Actions and Matters. By Arthur Under- HILL, LL.D., of Lincoln's Inn, Barrister-at-Law. 1 vol. post Svo., 10s. Qd. cloth. 1881 UNDERHILL'S LAW OF TORTS.— Fifth Edition. A SUMMARY OF THE LAW OF TORTS, OR WEONGS INDEPENDENT OF CONTEACT. By Arthur Underhill, M.A., LL.D., of Lincoln's Inn, Esq., Barrister- at-Law. Fifth EcHtion. 1 vol. post 8vo. 10s. cloth. 1889 " He has set forth the elements of the " The plan is a good one and has heen law with clearness and accmacy. The honestly earned out, and a good index little work of Mr. Underhill is inexpen- facilitates reference to the contents of sive and may be relied on." — LawTimes. the hook." —Justice of the Peace. UNDERHILL'S LAW OF TRUSTS AND TRUSTEES. A CONCISE AND PEACTICAL MANUAI. OF THE LAW RELATING TO PEIVATE TEUSTS AND TEUSTEES. By Arthur Uxderhill, M.A., LL.D., of Lincoln's Inn and the Chancery Bar, Barrister-at-Law. Third Edit. "With Supplement containing the Trustee Act, 1888. Post 8vo. 18s. cloth. 1889 *»* Tlie Supplement may he had separately 2.s. sewed. "The author so treats his subjects the model of Sir Fitzjames Stephen's that it will not be f oimd a difficult ' Digest of the Ci-iminal Law and Law matter for a person of ordinarj- Intel- of E^ddence from the Indian Acts,' and ligence to retain the matter therein con- which has been followed by ilr. PoUock tained, which must be constantly ne- in liis ' Digest of the Law of Partner- cessary, not only to the professional ship.' I\Ii-. L^nderhill has, in the above- man, but also for all those who may have named volume, performed a similar task taken upon themselves the respon-sibili- in relation to the ' Law of Trusts.' In ties of a trustee." — Justice of the Peace. seventy-six articles he has summarized _ " We recently published a short re- the principles of the ' Law of Trusts' as view or notice of Mr. A. F. Leach's distinctly and accurately as the subject ' Digest of the Law of Probate Duty,' will adroit, and has supplemented the and remarked that it was framed after articles with illustrations." LawJournal. 16 LAW WORKS PUBLISHED BY BROWN'S COPYHOLD ENFRANCHISEMENT ACTS. THE LAW AND PRACTICE ON ENFRANCHISE- ISIENTS AND COMMUTATIONS under the Copyhold Acts, 1841 — 1887, and other Acts, and at Common Law ; with Forms, Practical Directions, and Annotations to the Copyhold Acts. By Archibald Browx, of the Middle Temple, Barrister-at-Law, Editor of " Scriveu on Copyholds." &c. Just published in 1 vol.. post 8vo.. 14.^. cloth. " 1888 SCRIVEN ON COPYHOLDS.— 6th Edit., by Brown. A TKEAT18E on the LAW of COPYHOLDS and of the other TENURES (Customary and Freehold) of LANDS within ^Luiors, with the Law of Manors and Manorial Customs generally, and the Rules of Evidence applicable thereto, in- cluding the Law of Commons or Waste Lands, and also the Jurisdiction of the various Manorial Courts. By John Scriven. The Sixth Edition, thoroughly revised, re-arranged, and brought down to the present time, by Archibald Brown, Esq., of the Middle Temple, Barrister-at-Law, B.C.L., &c.. Editor of " Bain- bridge on the Law of Mines." 1 vol. roy. 8vo. 30s. cloth. 1882 BAINBRIDGE ON MINES.— 4th Edit., by Archibald Brown. A TREATISE on the LAW of ^IINES and MINERALS. By William Baixbridge, Esq., F.G.S., of the Inner Temple, Barrister-at-Law. Fourth Edition. By Archibald Brown, M.A. Edin. and Oxon, of the Middle Temple, Barrister-at-Law. This Work has been whoUj' re-cast, and in the greater part re- written. It contains, also, several chapters of entirely new matter, which have obtained at the present daj' great Mining importance. 8vo. 45s. cloth. 1878 " This work must be ah-eady familiar which has for so long a period occupied to all readers whose practice bringrs the position of the standard work on them in any manner in connection with this important subject. Those only who, mines or mining-, and they well know by the nature of their practice, have its value. We can only siiy of this new learned to lean upon 'ill. Bainbridge edition that it is in all respects worthy as on a solid staff, can appreciate the of its predecessors." — Law Times on deep research, the admirable method, 3rd fdit. and the graceful style of this model " It would be entirely superfluous to ti-eatise.." — Law Journal on 3rd edit. attempt a general re\"iew of a work NASMITH'S INSTITUTES OF ENGLISH LAW. THE INSTITUTES OF ENGLISH LAW.— Part 1, English Public Law. Part 2, English Private Law (in 2 vols.). Part 3, Evidence and the Measiu'e of Damages. By Daved Nasmith, LL.B., of the Middle Temple, Barrister-at-Law, Author of the Chronometrical Chart of the History of England, &c. In 4 vols, post 8vo. 30s. cloth. 1873—1879 *^* The above may be had separately to complete sets at the folloicing prices .-—Part 1, 10s. cloth. Fart 2, 20s. cloth. Fart 3, 10s. cloth. SIR T. ERSKINE MAY'S PARLIAMENTARY PRACTICE.— Ninth Edition. A TREATISE ON THE LAW, PERTLEGES, PROCEEDINGS AND USAGE OF PAELIAMENT. By Sir Thomas Erskixe '^Lky, D.C.L., K.C.B., Clerk of the House of Commons and Bencher of the Middle Temple. Ninth Edition, Eevised and Enlarged. 8vo. 48s. cloth. 1883 Contexts : Book I. Constitution, Powers and Pi-i\-ilesres of Parliament. — Book II. Pi'actice and Pi-oceeding-s in Parliament. — Book III. The Manner of passing Pi-ivate Bills, ■with the Standing Orders in both Houses, and the most recent Precedents. " A work, which has risen from the ment." — Solicitors' Journal. position of a text book into that of an " "We need make no comment upon authority, would seem to a considerable the value of the work. It is an accepted extent to have passed out of the range authority and is undeniably the law of of criticism. It is quite unnecessary to Parliament. It has been brought up to point out the excellent arrangement, the latest date, and should be in the accuracy and completeness which long hands of every one engaged in Parlia- ago rendered Sir T. E. May's treatise mentaiy life, whether as a lawyer or as the standard work on the law of ParHa- a senator." — Laiv Times. FULTON'S Manual of CONSTITUTIONAL HISTORY. A MANUAL OF CONSTITUTIONAL HISTOEY, founded on the Works of Hallani, Creasj", May and Broom : comprising all the Fundamental Principles and the Leading Cases in Constitutional Law. By Foke,est Fulton, Esq., LL.D., B.A., University of London, and of the ^Middle Temjile, Barrister-at-Law. Post 8yo. 7s. Qd. cloth, 1875 TUDOR'S LEADING CASES ON REAL PROPERTY.- Third Edition, A SELECTION of LEADING CASES on the LAW relating to EEAL PPOPEETY, CONVEYANCING, and the CONSTRUCTION of WILLS and DEEDS ; with Notes. By Owen Davies Tudor, Esq., of the Middle Temple, Barrister- at-Law, Author of "Leading Cases in Equity." Third Edition. 1 thick vol. royal 8yo. 21. 12s. Qd. cloth. 1879 " The work before us comprises a to the former." — Solicitors' Journal and digest of decisions which, if not exhaus- Fwporter. five of all the principles of oiu* real "In this new edition, Mr. Tudor has property code, wiU at least be f oimd to carefully revised his notes in accordance leave nothing untouched or unelabo- with subsequent decisions that have rated under the numerous legal doc- modified or extended the law as pre- trines to which the cases severally relate. viously expounded. This and the other To Mr. Tudor's treatment of all these volumes of Mr. Tudor are almost a law subjects, so complicated and so varied, library in themselves, and we are satis- we accord our entire cominendation. tied that the student would learn more There are no omissions of any important law from the careful reading of them, cases relative to the various branches of than he woidd acquire from double the the law comprised in the woi'k, nor are time given to the elaborate treatises there any omissions or defects in his which learned professors recommend statement of the law itself applicable the student to peruse, with entii-e for- to the cases discussed by him. We cor- getfulness that time and brains are dially recommend the work to the prac- limited, and that to do what they advise titioner and student aUke, but especially would be the work of a life. ' ' — La vj Times. 18 LAW AVORKS PUBLISHED BY MOSELY'S ARTICLED CLERKS' HANDY BOOK.— By Bedford. MOSELY'S PEACTICAL HANDY-BOOK OF ELE- MENTARY LAW, designed for the Use of ARTICLED CIjERKS, wdtli a Course of Study, and Ilint^ on Reading for the Intermediate and Final Examinations. Second Edition, by Edw^uid Hexslowe Bedfokd, Solicitor. Post 8vo., 8s. Gd. cloth. 1878 " Tliis book cannot be too strongly Law. It will certainly not be the fault recommended to every one who con- of either author or editor if the years templates becoming' a sobcitor." — Law spent under articles are not well spent, Examinalion Journal. and if the work required to lay a sound " Mr. E. H. Bedford, indefatigable foundation of legal knowledge is not in his labouTB on behalf of the articled done with that 'knowledge' of which clerk, has supcrv-ised a new edition of they so emphatiailly declare the neces- Mosely's Handy Book of Elementary sity." — Law Magazine. CUTLER & GRIFFIN'S INDIAN CRIMINAL LAW. AN ANALYSIS OF THE INDLVN PENAL CODE, including the INDIAN PEN^VL CODE AMENDMENT ACT, 1870. By John Cutler, B.A., of Lincoln's Inn, Barrister-at- Law, Professor of English Law and Jurisprudence, and Professor of Indian Jurisprudence at King's College, London, and Edmttnd Fuller Griffix, B.A., of Lincoln's Inn, Barrister-at-Law. 8vo. 65. cloth. 1871 ROUSE'S CONVEYANCER, with SUPPLEMENT, 1871. Third Edition. The PEACTICAL CON^^EYANCEE, gi\'ing, in a mode combining facilitj' of reference "with general utihtj', upwards of Four Himdred Precedents of Conveyances, Mortgages and Leases, Settlements, and Miscellaneous Forms, with (not in previous Editions) the Law and numerous Outline Forms and Clauses of Wills and Abstracts of Statutes affecting Real Pro- perty, Conveyancing Memoranda, &c. By Rolla Rouse, Esq., of the Middle Temple, Barrister-at-Law, Author of " The Prac- tical Man," &c. Third Edition, greatly enlarged. With a Supplement, giving Abstracts of the Statutory Provisions affecting the Practice in Conveyancing, to the end of IB'O; and the requisite Alterations in Forms, with some new Forms ; and including a full Abstract in nvmibered Clauses of the Stamp Act, 1870. 2 vols. 8vo. 30s. cloth; 3Ss. calf. 1871 *^* The Supplement may be had separately, price \s. &d. sewed. " The best test of the value of a book reached its third shows that it is con- written professedly for practical men is sidered by those for whose convenience the practical one of the number of edi- it was written to fulfil its purpose well." tions tlu-ough which it passes. The fact — Law ilagazine. that this well-known work has now MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 19 BLAGG'S LAW OF PUBLIC MEETING. THE LAW AS TO PUBLIC MEETING. By J. W. Blagg, Esq., of Lincoln's Inn, Barrister-at-Law. In 1 vol. Post 8vo. 3s. cloth. 1888 CUTLER'S LAW OF NATURALIZATION. THE LAW OF NATUEALIZATION as Amended by the Act of 1870. By John Cutler, B.A., of Lincoln's Inn, Barrister-at-Law, Editor of "Powell's Law of Evidence," &c. 12mo. 3s: 6d. cloth. 1871 "Professor Cutler's book is a useful is given in full with a useful index." — summary of the law and of the changes Law Magazine. which have been made in it. The act COOTE'S ADMIRALTY PRACTICE.— Second Edition. THE PEACTICE OF THE HIGH COUET OF ADMIEALTY OF ENGLAND : also the Practice of the Judicial Committee of Her Majesty's Most Honourable Privy Council in Admii-alty Appeals, with Forms and Bills of Costs. By Hexry Charles Coote, F.S.A., one of the Examiners of the High Court of Admiralty, Author of ' ' The Practice of the Court of Probate," &c. Second Edition, almost entirely re-written; and with a SUPPLEMENT containing the County Court Practice tn ^d/'rt/ra%, the Act, Piules, Orders, »S:c. 8vo. 16s. cloth. 1869 THE LAW EXAMINATION JOURNAL. THE LAW EXAMINATION JOUENAL. Edited by Herbert New^iax Mozley, M.A., Fellow of King's College, Cambridge; and of Lincoln's Inn, Esq., Barrister-at-Law. Price Is. each Number, by post Is. Id. Nos. 34 d- 35 [double number), price 2s., by post 2s. 2d. *t* All back numbers, commencing with No. I., may be had. *js* Copies of Vol. I., containing Nos. 1 to 14, with full Indexes and Tables of Cases Cited, may now be had, price 16s. bound in cloth. Vol. II., containing Xos. 15 to 28, with Index, price in cloth, 16s. Vol. III., containing Nos. 29 to 45, price 18.9. 6d. cloth. Vol. IV., containing Nos. -16 to 62, price 18s. &d. cloth. The Indexes to Vols. II., III. and IV. may be hod separately to complete copies for binding, price Qd. each sewed. B 2 20 LAW WORKS PUBLISHED BY ORTOLAN'S ROMAN LAW, Translated by PRIOHARD and NASMITH. THE HISTORY OF EOMAN LAW, from the Text of Ortolan's Histoire de la Legislation Eomaine et Generalisation du Droit (edition of 1870). Translated, with the Author's permission, and Supplemented by a Chronometrical Chart of Roman Histor5% By I. T. Pkiciiard, Esq., F.S.S., and David Nasmith, Esq., LL.D., Barristers-at-Law. 8vo. 28s. cloth. 1871 " We know of no work, which, in our opinion, exliibits so perfect a model of wliut a text-book ought to be. Of the translation before us, it is enough to say, that it is a faithful representation of the original." — Law Magazine. KELLY'S CONVEYANCING DRAFTSMAN.— 2nd Edit. THE I)R AFT81MAN : containing a Collection of Concise Precedents and Forms in Conveyancing; with Introductory Observations and Practical Notes. By J^vmes H. Kelly. Second Edition. Post 8vo. 12s. 6f/. cloth. 1881 "Mr. Kelly's object is to give a few precedents of each of those instriinicnts wliicli are most connnonly required in a solicitor's office, and for wliich prece- dents are not always to be met with in the ordinary books on conveyancing. Tlie idea is a good one, and the prece- dents contained in tlie liook are, gener- ally speaking, of the character contem- plated by tlie author's design. We have been favourably impressed with a perusal of several of the precedents in this book, and practitioners who have already adopted fonus of their own will probably find it advantageous to collate tliem 'with those given by Mr. Kelly. Each set of precedents is pre- faced by a few terse and practical ob- servations." — Solicitors' Journal. " Such statements of law and facts as are contained in the work are accurate." — La%v Journal. "It contains matter not found in the more ambitious works on conveyancing, and we venture to think that the student will find it a useful supplement to his reading on the subject of conveyanc- ing." — Law Examination Journal. REDMAN ON ARBITRATIONS AND AWARDS.— Second Edition. A CONCISE TREATISE on the LAW OF ARBI- TEATIONS and AWAEDS ; -n-ith an Appendix of Precedents and Statutes. By Joseph Ha worth Eedman, of the Middle Temple, Esq., Barrister-at-Law, Author of "A Treatise on the Law of Eailway Companies as Carriers." 2nd Edition. 8vo. 18s. cloth. " Tlie aiTangement is good, the style clear, and the work exhaustive. There is a useful appendix of precedents and statutes, and a verj-good index." — Laxv Times. " This is likely to prove a useful book in practice. All the ordinary law on the subject is given shortly and in a convenient and accessible foiTQ, and the index is a good one." Solicitors' Journal. "We have no doubt but that the 1884 work will be useful. The precedents of awards are clearly and concisely diti^-n. The aiTangement of chapters is conveniently managed. The law is clearly stated, and, so far as we can judge, all the important cases bearing directly on the subject are given, while the index appears reasonably copious. These facts, combined with the small- ness of the volume, ought to make the book a success." — Law Journal. MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 21 CLIFFORD & STEPHENS' REFEREES' PRACTICE, 1873. THE PRACTICE OP THE COURT OP REPEREES on PEIVATE BILLS EN" PAELLi^IENT ; witli Eeports of Cases as to ttie Locus Standi of Petitioners decided during the Sessions 1867—72. By Frederick Clifford, of the ^liddle Temple, and Pembroke S. Stephens, of Lincoln's Inn, Esqs., Barristers-at-Law. 2 vols, royal 8vo. 3?. 10s. cloth. In continuation of the above, Roy. Si'o., sewed, Vol. I. Part I., 31s. M: ; Part II., Ihs.: Vol. II. Part I., 12s. 6'D, M. A., LL.B., Barristers-at-Law. 12mo. 16s. cloth. With a Supplement including the Orders to April, 1870. *^ The Sup2ilement may he had separately, Is. sewed. 30 LAW WORKS PUBLISHED BY OKE'S MAGISTERIAL SYNOPSIS.— Thirteenth Edit. THE MAGISTEEIAL SYNOPSIS : a Practical Guide for Magistrates, their Clerks, Solicitors, and Constables; com- prising Summary Convictions and Indictable Offences, -ndth their Penalties, Punishments, Procedui'C, »S:c.; (djihabeticallt/ and tnhiilnrhj arranged : with a Copious Index. Thirteenth Edition, much enlarf/ed. By Thomas W. Sauxdeus, Esq., Metropolitan Police Magistrate. In 2 vols. Svo. G3s. cloth; 738. calf. 1881 " Twelve editious in twenty- S}Tiopsis. The law administered eiglit years say more for the prac- by magistrates, like almost every tical utility of this work than any other branch of our j urisprudence, number of favourable reviews. Yet goes ou growing almost every day we feel bound to accord to the of the legal year, and a new edition learned Recorder of Bath the praise of such a work as this every few of having fully maintained in the yeai-s means no small amount of present edition the well-earned re- labour on the part of the editor, putation of this useful book." — We are glad to see that Mr. Saun- Zaw Magazine. ders has bestowed great care in the "Tlie industrious, capable and revision of the index, which is now painstaking Recorder of Bath (Mr. a feature in the work." — Law T. W. Saunders) has edited the Times. twelfth edition of Oke's Magisterial OKE'S HANDY BOOK OF THE GAME LAWS.— 3rd Ed. A HANDY BOOK OF THE G A:\IE LAWS; containing the whole Law as to Game, Licences and Certificates, Gun Licences, Poaching Prevention, Trespass, Eabbits, Deer, Dogs, Birds and Poisoned Grain, Sea Birds, Wild Biids, and Wild Fowl, and the Rating of Game throughout the United Kingdom. Systematically arranged, with the Acts, Decisions, Notes and Forms, &c. Third Edition. With Supplement to 1881, con- taining the Wild Birds Protection Act, 1880, and the Ground Game Act, 1880. By J. W. Willis Bu>T), M.A., LL.B., of Lincoln's Inn, Esq., Barrister-at-Law ; Vice-Chairman of the Severn Fishery Board. Post 8vo. 16s. cloth. 1881 *^,* The Supplement may be had separately, 2s. Gd. seived. " A book on the Game Laws, elusion, we would observe that the brought up to the present time, present edition of the above work and includmg the recent acts with ^vill be found by legal men or others regard to wild fowl, &c., was much who require any reliable iuforma- needed, and Mr. Willis Bund has tion on any subject connected with most opportunely supplied the want the game laws, of the greatest by bringing out a revised and en- practical utility, and that landed larged edition of the very useful proprietors, fanners, and sports- handy book of which the late Mr. men wiU find ' Oke's Game Laws' Oke was the author." — The Field. an invaluable addition to their "The editorship of the present libraries, and an easy means of publication has, we are happy to enlightening themselves on a sub- say, fallen into such able hands as ject which closely affects them." — those of Mr. Willis Bund. In con- Zand and Water. MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 31 OKE'S MAGISTERIAL FORMULIST.— Sixth Edition. THE MAGISTERIAL FORMULIST : being a Com- plete Collection of Forms and Precedents for practical use in all Cases out of Quarter Sessions, and in Parochial Matters, by Magistrates, tbeir Clerks, Attornies and Constables. By GtEORGE C. Oke. Sixth Edition, enlarged and improved. By Thomas W. Saunders, Esq., Metropolitan Police Magistrate. In 1 vol. 8vo. 38s. cloth; 43s. calf. 1881 "Mr. Saunders has not been hend recent enactments is of the called upon to perf onn the f unc- veiy first importance. In selecting tions of an annotator merely. He Mr. Saunders to follow in the steps has had to create, just as Mr. Oke of Mr. Oke the publishers exercised created when he wrote his book. wise discretion, and we congratu- This, of course, has necessitated late both author and publishers the enlargement and remodelling upon the complete and very ex- of the index. No work probably is cellent manner in which this edition in m.ore use in the offices of magis- has been prepared and is now pre- tratesthan 'Oke'sFormulist.' That sented to the profession." — Law it should be reliable and compre- Times. OKE'S LAWS AS TO LICENSING INNS, &c.— 2nd Edit. THE LAAVS AS TO LICENSING INNS, &c. ; containing the Licensing Acts, 1872 and 187-1, and the other Acts in force as to Ale-houses, Beer-houses, Wine and Refresh- ment-houses, Shops, tScc, where Intoxicating Liquors are sold, and BilUard and Occasional Licences. Systematically arranged, ■with Explanatory Notes, the authorized Forms of Licences, Tables of Offences, Index, &c. By George C. Oke. 2nd edit, by "W. C. Glen, Esq. , Barrister-at-Law. Post 8vo. 10s. cloth. 1874 OKE'S FISHERY LAWS.— Second Edition by Bund. THE FISHERY LAWS : A Handy Book of the Fishery Laws : containing the Law as to Fisheries, Private and PubHc, in the Inland Waters of England and Wales, and the Fresh- water Fisheries Preservation Act, 1878. Systematically ar- ranged : with the Acts, Decisions, Notes, and Forms, by George C. Oke. Second Edition, with Supplement containing the Act of 1884, with Notes, by J. W. Willis Bund, M.A., LL.B., of Lincoln's Inn, Barrister-at-Law, Chairman of the Severn Fishery Board. Post 8vo. 6s. cloth. 1884 OKE'S LAW OF TURNPIKE ROADS.— Second Edit. THE LAW OF TURNPIKE ROADS ; comprising the whole of the General Acts now in force, including those of 1861 ; the Acts as to Union of Trusts, for facilitating Arrangements with their Creditors; as to the interference by Railways with Roads, their Non-repair, and enforcing Contributions from Parishes, &c., practically arranged. With Cases, copious Notes, all the necessary Forms, and an elaborate Index, &c. By George C. Oke. Second Edition. 12mo. 18s. cloth. 1861 32 LAW WORKS PUBLISHED BY CLERKE AND BRETT'S CONVEYANCING ACTS.— Third Edition. THE CONVEYANCING ACTS, THE VENDOR AND PURCHASER ACT, THE SOLICITORS' REMUNERATION ACT, and the General Order made thereunder ; with Notes and an Introduction. By Aubrey St. Jonx Clerke, B.A., and TnoxAS Brett, LL.B., B.A., both of the Middle Temple, Esquires, Barristers-at-Law. Third Edition. Just published, post Svc, 12s. (id. cloth. 1889 " Tliis little book is one of the most useful works on the Conveyancing Acts, and with students, perhaps, the most popular." — Jiirifi, Aufrust, 1889. •' The thiid edition of Messrs. Clerke & Brett's work on the Conveyancing Act will desenedly maintain the high reputation gained by the former edi- tions. Tiie cases are well noted up to date."— /,./»■ Tinit's, July 27, 18S9. " We are glad to welcome, after the lapse of several yeai-s, a new edition of this excellent work. We can commend the book as an extremely handy and complete edition of the Acts." — Solici- tors' Jn„n,al,Jn\y 27, 1889. "We do not think the student could have a better work to assist him in his study of these all-important Acts, and we most heartily commend the work to om' readers' attention." — Law Students' Journa}, August, 1889. "This volume deser%-es hearty com- mendation, for the work throughout is characterized by conciseness in arrange- ment, patient labour in research, and scholarly accuracy in compiling. All recent cases have been incorporated in the work, so far at least as our perusal has served as a t^st, their precL'se effect given, and, as the authors say, much in the nature of conjectural interpretation in the previotis editions has now been replaced by the authority of express decision. The result ls cmmently satis- factory."— /'«w/> Ciittrt, Aug. 21, 1889. "The first edition of this book was published in 1881, and it became evident that its combination of topic and treat- ment would make it popidar. That it was capable of expansion ls shown by the fact, that the authors have added more than two hundred and tifty cases in the present edition. The cases bear- ing directly on the Act are to be found in their proper places, and the authors continue their practice of discussing questions suggested by the sections dealt with in their notes. Tlie table of cases is admirably full, gi^-ing the re- ferences to all the reports besides those which the authors, under a mistake which it is hard to kill, call the autho- rized reports. The index is good, ex- cept for its referring back to the table of contents under the head of the Acts dealt with." — Law Journal, August 17, 1889. RUEGG'S EMPLOYERS' LIABILITY ACT. A TREATISE upon the EMPLOYERS' LIABILITY ACT, 1880, with Rules, Forms and Decided Cases. By A. H. RuEGG, of the Middle Temple, Barrister-at-Law. 1 Yol. post 8vo. OS. cloth. 1881 MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 33 HUNT'S BOUNDARIES, FENCES & FORESHORES.— Third Edition. A TEEATISE on the LAW of BOUNDAEIES and FENCES in relation to tlie Sea- shore and Sea-bed; Public and Private Eivers and Lakes ; Mines and Private Properties Generally ; PLailways, Highways, and other Ways and Koads, Canals, and Waterworks ; Parishes and Counties ; Incloeures, &c. Together with the Eules of Evidence and the Eemedies applicable thereto, and including the Law of Party-walls and Party-structures, both Generally and within the Metropolis. Third Edition. By Archibald Brown, Esq., of the Middle Temple, Barrister-at-Law. In 1 vol. post 8vo. 14s. cloth. 1 884 " There are few more fertile sources of litigation than those dealt with in Mr. Hunt's valuable book. It is suffi- cient here to say that the volume ought to have a larger cii'culation than ordi- nai-ily belongs to law books, that it ought to be found in every country gentleman's library, that the cases are brought down to the latest date, and that it is carefully prepared, clearly written and well edited." — Law Mag- azine. " It speaks weU for this book, that it has so soon passed into a second edition. That its utility has been appreciated is shown by its success. INIi-. Hunt has availed himself of the opportunity of a second edition to note up all the cases to this time, and to extend considerably some of the chapters, especially that which treats of rights of property on the seashore and the subjects of sea walls and commissions of sewers."— Law Times. "Jlr. Hunt chose a good subject for a separate treatise on Boundaries and Fences and Rights to the Seashore, and we are not sui-prised to find that a second edition of his book has been called for. The present edition contains much new matter. The chapter espe- cially which treats on rights of propeily on the seashore, which has been greatly extended. Additions have been also made to the chapters relating to the fencing of the property of mine owners and railway companies All the cases which have been decided since the work first appeared have been introduced in their proper places. Thus it wiU be seen this new edition has a considerably enhanced value." — Solicitors' Journal. COLLIER'S LAW OF CONTRIBUTORIES. A TEKITISE on the LAW OF CONTEIBUTOEIES in the Winding-up of Joint-Stock Companies. By Eobert Collier, of the Inner Temple, Esq. , Barrister-at-Law. Post 8vo. 9s. cloth. 1875 " Mr. Collier's general arrangement appears to have been carefully devised, and is probably as neat as the natiu-e of the subject admits of. It is impos- sible after a perusal of the book to doubt that the author has honestly studied the subject, and has not con- tented himself -n-ith the practice of piecing together head notes from re- ports." — Solicitors' Journal. "Mr. Collier has not shrunk from pointing out his views as to the recon- cilability of apparently conflicting deci- sions or as to many points on wliich the law is still unsettled ; without making any quotations for the piu-pose of illus- trating the above remarks, we tliink we are justified in commending this treatise to the favourable consideration of the profession." — Law Journal. 34 LAW WORKS PUBLISHED BY THE BAR EXAMINATION JOURNAL. THE 13AE EXA311NATI0N JOUENAL, containing the Examination Papers on all the subjects, ■with Answers, set at the General Examination for Call to the Bar. Edited by A. D. Tyssex, B.C.L., M.A., Sir E. K. WiLSOX, Bart., M.A., and W. D. Edavakds, LL.B., Barristers-at-Law. 3s. each, by post 3s. 1'/. 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