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*

* TREATISE
THE LAW
TO CONTRACTS AND AGREEMENTS
NOT UNDER SEAL.
WITH
GASES AND DECISIONS THEREON IN THE ACTION OF ASSUMPSIT.
-**º-
IN FOUR PARTS.
tº
e
* e
BY SAMUEL COMYN, Esq. -
or THE MIDDLE TEMPLE, BARRISTER AT LAW,
THIRD AMERICAN EDITION,
wrth corrections, AND THE ADDITION or NoTES AND REFERENsrs.
**Cº-
VOLUME I.
*sºn-ºss
BRookFIELD, (MASS.) P
PUBLISHED BY ELISHA HAMMOND.
1823.
f) ISTRICT OF MASSACHUSETTS-to wit.
IrSTRICT CLERK’s of FICE.
BE IT REMEMBERED, that on the sixth day of February, A. D. 1823, in the Forty seventh
Year of the Independence of the United States of America, ELISHA HAMMOND of the said
District, hath deposited in this office the title of a book the right whereof he claims as Pro-
prietor, in the words following, to wit:
“A treatise of the Law relative to contracts and agreements not under seal. With Cases
and Decisions thereon in the action of assumpsit. In Four Parts. By SAMUEL CoMyN, Esq.
of the Middle Temple, Barrister at Law. Third American Edition, with corrections, and the
addition of Notes and References.”
..In conformity to the Act of the Congress of the United States, entitled, “An act for the en-
96tràgément of learning, by securing the copies of maps, charts and books, to the authors and
prºprietors of such copies, during the times therein mentioned ;” and also to an act entitled,
“An act supplementary to an act, entitled, an act for the encouragement of learning, by se-
curing the copies of maps, charts and books, to the authors and proprietors of such copies
during the times therein mentioned ; and extending the benefits thereof to the arts of design-
ing, engraving and etching historical, and other prints.”
JNO. W. DAVIS.
Clerk of the District of JMassachusetts.
E. JMerriam and Co. Printers.
Brookfield, JMass.
ADWERTISEMENT.
THE numerous questions which have arisen in the Courts of
Common Law upon contracts and Agreements, make it desirable to have
a ready access to the determinations respecting them.
With this view the Author was first led to undertake the fol-
lowing work, which he now submits to the public, in the hope that,
from its arrangement, it will be found a useful book of reference, and
obviate the necessity of a long and laborious research into the vast
variety of Detached Reports of Cases upon the subject. S. C.
Serjeant’s Inn, Fleet-street,
October 25th, 1807.
t,
… . . * *
, - *. t a
r" 2. ... : \, *...*.*.*.*. Wººd, • #.. -- *~~ * ºf t. - L
* *
, , -, *,
• ? * - | 24 : i-
g
**{
&
s
TABLE
OF
THE CONTENTS.
VOLUME THE FIRST.
PART THE FIRST.
eF THE NATURE AND REQUISITES OF A CONTRACT AND AGREEMENTS
BY PAROLe
[The figures in the following tables refer to the original pages, which are numbered in the
margin.] -
CHAP, I. Page.
Of the Wature of a Contract and Agreement by parol ; and of Ezpress
and Implied Contracts and Promises, - - º - - . 1
- CHAP. II. -
Of the Consideration necessary to support a Contract or Agreement, - 8
CHAP. III. - -
Of Illegal Contracts, - tº gº - - - - - 30
CHAP. IV. -
Of the statute of Frauds and Perjuries upon Contracts and Agreements, 47
CHAP. W.
ºf the Stamping of Contracts, agreements, Bills, Notes, &c. * 130
vi TABLE OF THE COTP.NENTS.
PART THE SECOND.
OF THE PARTIES To A CONTRACT, AND THEIR REPRESENTATIVES, &c.
CHAP. I. Page.
Of Contracts with Infants, º iº wº * tº tº gº 148
CHAP. II.
€f Contracts with Married Women; and of the Husband's Liability to Con-
tracts made by the Wife either before or after Marriage, - - 171
CHAP. III.
Clf Contracts with Master and Servant, * * * º - 218
CHAP. IV.
Of Principal, Factor and Agent, * tº ºs - - - - 234
CHAP. V.
Of Contracts by Agents of Government, &c. tº- tº - - 272
CHAP. VI.
Of Contracts by Partners, tº ; = * * sº ſº tºº 285
te CHAP. VII.
Of Owners, Masters, and Seamen of Merchant-ships, - - - wº 330
CHAP. VIII.
Of Contracts and Agreements with Parish Officers, º tº -* 395
CHAP. IX.
Of Trustees, º gº tºs * * tº : º tº 404
CHAP. X.
Of Bankrupts and their flasignees, ſº tº &º sº sº 406
CHAP. XI.
Of Executors and fläministrators, sº * arº sº *s º, 521
TABLE OF THE CONTENTS, vii
VOLUME THE SECONI).
PART THE THIRD.
OF PARTICULAR CONTRACTS AND AGREEMENTS WITH REFERENCE TO THE
ACTION OF ASSUMPSIT.
CHAP. I. Page.
Of Money had and received, - tºº º tº - 3
CHAP. II.
Of Money Lent and Advanced, =º º sº - 138
\ & CHAP. III.
Of Money Paid, sº sº Eº sº º 149
CHAP. IV.
Qf Money Due upon an Account Stated, tº tºº 20 6
CHAP. W.
Of Interest, arº & s gº º - 207
CHAP. VI.
Of Contracts for the Sale of Goods, sº * * 209
CHAP. VII.
Of Contracts to Accept or Transfer Stock, tº gº 245
CHAP. VIII,
Of Contracts of Warranty upon Sales, * -º {-º- * 263
CHAP. IX.
Of the Bailment of Goods with Carriers, Wharfingers, Warehouse-men, &c. 288
CHAP. X.
Of Contracts to Deliver up Securities, &c. *g º - 348
CHAP. XI.
of Contracts for Wecessaries, me º * sº 350
CHAP. XII.
of Contracts for Services and Work, º < gº 358
CHAP. XIII.
Of Contracts to Marry, and to pay Money in Consideration of Marriage, 408
# CHAP. XIV.
Of Agreements to Pay Money in Consideration of Forbearance, or of Dis-
charging or Proving a Debt, - * sº sº 419
CHAP. XV.
Of Agreements for the Relinquishment or Sale of Gffices, &c. - 452
viii TABLE OF THE CONTENTS.
CHAP. XVI. Page.
of Agreements in Restraint of Trade, i- - -. 467
CHAP. XVII.
Of Agreements not to take advantage of a Communication of the partic-
wlars of a New Invention, º s 481
CHAP. XVIII.
Qf Wagers, - - - gº – 486
CHAP. XIX.
Of Bonds made in Scotland, (not under Seal.) * - 508
CHAP. XX.
©f Contracts for Use and Occupation of Houses, &c. tº- sh 510
CHAP. XXI.
Of Contracts to Take and to Repair Houses, &c. sº *- 526
\ CHAP. XXII.
Of Tithes Bargained and Sold; and of Agreements jor a Composition
in lieu of Tighes, tº º gº gºe gº 531
-ºš +3 ºv
PART THE FOURTH.
6F THE CONSTRUCTION OF CONTRACTS : AND OF THE ACTION OF Assumſ PSIT.
CHAP. I.
of the Construction of Contracts and Agreements, - º 532
CHAP. II.
Of Agreements with a Penalty or Stipulated Damages, * - º 537
CHAP. III.
Of the fletion of Assumpsit, sº -º- tº 54%
*
QF
iN DEX
CITEI).
Aylesford's, Earl of, Ca$e,
Ayliff v. Archdale,
Ayliffe v. Tracy,
B
Back v. Owen,
Baillie v. Mondigliani,
Bainbridge v. Pickering,
Ballantine v. Golding,
Bamford v. Burrell,
Banfield v. Leigh, ,
Bank of England v. Glover,
Barber v. Dennis,
v. Fox,
Barclay v. Gooch,
Barjeau v. Waſmsley,
Barlow v. Bishop,
Barnes v. Freeland,
Barrett v. The Duke of Bedford,i
Baston v. Butter,
Bartlett v. Viner,
Beale v. Thompson,
Beauchamp v. Borrett,
Bell v. Drummond,
Bent v. Puller, ,
Bermon v. Woodbridge,
Berry v. Young,
Besford v. Saunders,
Bever v. Tomlinson,
Bexwell v. Christie,
Bidmead v. Gale,
Briggs v. Lawrence,
Bilbie v. Lumley,
Bingham v. Serle,
Birch v. Wright,
Vol. Pagé.
l
l
I
i:
1.
i
ii
ii
i
se
1.
I
i
ji
ii
81
160
73
214
224
374
428
——ºk 4,
A
y - Vol. Page,
ABEL v. Sutton, i 315
Adam v. Richards, ii 279
Alcinbrook v. Hall, ii. 144 151
Alcorn v. Westbrook, ii 348
Alderson, Assignee,&c. v. Tem-
le, i 456
Aldrich v. Ewen, ii 355
Alexander v. Owen, ii 293
Alfred v. Marquis Fitzjames, i £228
Allen, Administrator, &c. v. Dun-
* das, i 524 ii 51
Allen v. Keeves, i 135
— v. Hearn, ii 496
Alpass v. Watkins, ii 61
Alves v. Hodson, i 138
Amie v. Andrews, ii 450
Anchor v. The Governor and
Company of the Bank tº
of England, il 37
Anderson v. Hayman, i – 55
ii 237
Andrews v. Cawthbfne, ii 1 35
Anstey v. Marden, i 65
Appleton v. Binks, i 253
Aquillar v. Rodgers, ii 101
Arden v. Sharpe, i 314
Armstrong, Administratrix, &c.
v. Smith, i 378
Artaza v. Smallpiece, i 360
Aspinall v. Pickford, ii. 320
Astley v. Reynolds, . ii 1 15
v. Weldon, , ii 542
Atherfold v. Beard, ii 493
Atkins v. Banwell, i 897
Atkyns v. Amber, i 247
Audley v. Duff, ii 102
Woł. I. B
i
ii
i
ii
ii
ii
ii
#
51%
f INDEX OF CASES CITED.
Bize v. Dickason,
Blachford v. Preston,
Backstone v. Pye,
Blight v. Page,
Bloxam v. Pell,
Boehm v. Bell,
Bolton v. Prentice,
v. Hillersden,
Bordenave v. Gregory,
Bosden v. Sir John Thinn,
Bourne v. Mason,
Bowman v. Nichol,
Boyter v. Dodsworth,
Vol. P
I
ii
ii
i
i
ii
i
i
ii
i
ii
i
ii.
Bradley, Assignee,&c. v. Clark,i
Brand v. Boulcott,
Bree v. Holbech,
Brett v. Pretyman,
Bristow v. Eastman,
Broom v. Davis,
Brown v. Bullen,
v. M'Kinally,
v. Berkeley,
Browne v. Garborough,
Browning v. Morris,
Buchanan v. Parnshaw,
Buckler v. Buttivant,
Buckmaster v. Harrop,
Buckmyr v. Darnall,
Bull v. Sibbs,
Buller v. Harrison,
v. Fisher,
Bulling v. Frost,
Bulstrode v. Gilburn,
Burdon v. Webb,
Burrough v. Skinner,
Butcher v. Andrews,
Butler v. Rhodes,
Butterfield v. Burroughs,
Buxton v. Bedall,
Byne v. Playne,
v. Pattinson,
C
Califf v. Danvers,
Camfield v. Gilbert,
Campbell v. Hall,
Campion v. Nicholas,
Capp v. Topham,
Carpenter v. Marnell,
Carter v. Boehm, .
Cartwright v. Rowley,
ii
ii
ii
i
ii
i
ii
ii
ii
ii
ii
ii
ii
11
ll
ii
ii
age.
516)
461
505
345
291
98
186
239
257
23
27
565
141
132
439
188
63
450
152
362
511
45
506
415
131
281
171
83
51
5 13
250
325
507
561
202
255
24
139
438
275
144
433
359
343
62
27
369
205
419
41
Vol. Page.
Cass v. Waterhouse, I
Castling v. Auburt, i
Cary v. Webster, i
v. White, i
v. Crisp, i
Chambers v. Griffiths, ii
Chamberlaine v. Porter, i
Champion v. Plummer, i
Chandelor v. Lopus, ii
Chandler v. Parkes, i .
Chaplin v. Rogers, i
Chapman, Assignee, &c. v. Fra:
Ser, ii
Charlewood v. The Duke of
Bedford, i
Chater v. Beckett, i
Chesman and Wife v. Nainby,
in errour, ii
Child v. Hardyman, i
Chilton v. Whiffen, i
Chinnery v. Blackburne, i
Chorley v. Bolcot, ii
Clark v. Shee, ii
v. Gray, ji
Clarke v. Leslie, * i
Clay v. Willan, ii
Clayton v. Andrews, i 92
— v. Adams, i
v. Jennings, ii
Clerk v. Wright, i
Cobden v. Kendrick, ii
Cockshott v. Bennett, ii
Coggs v. Bernard, i 19 ii 288
...; v. Saxby, i
v. Gower, i
Coles v. Trechothick, i
Collins v. Blantern, i
Colls v. Lovell, i
Colt v. Neterville, i
Connor v. Martin, i
Cook v. Jennings, i
Cooke v. Tombs, i
v. Munstone, ii
v. Oxley, ii
— v. Ludlow, ii
v. Loxley, ii
v. Whorwood, ii
Coope v. Eyre, i
Cooper v. Martin, ii
Cooper v. Elston, i
Cordron v. Lord Masserene, ii
Cotton v. Thurland, ii
Cox, Assignee, &c. v. Morgan, i
Cowell v. Edwards, ii
114
63
251
339
430
53
135
118
266
165
97.
108
115
70
477
187
INDEX OF CASES CITEI).
xi
Vol. Page.
Cowley, Assignees, &c. v. Dun-
lop, ii 158
Cowlin v. Cook, ii 421
Crantz v. Gill, i 166
Criſford v. Berry, ii 12
Cripps v. Read, ii 64
Crosby v. Wadsworth, i 76
Crow v. Rogers, i 28
ii 565
Cullen v. The Duke of Queens-
bury ii $56
Curling v. Long, i 355
Curry v. Edensor, i 142 259
Curties v. Bridges, i 225
Curtis v. Vernon, i 545
v. Hannay, Bart, ii 282
T)
Da Costa v. Jones, ii 490
Dale v. Hall, ii 321
Davies v. Ridge, i 404
Davis v. James, ii 315
v. Mason, ii 480
Davison v. Heslop, ii 422
Dawes v. Peck, ii 317
De Bercom v. Smith, i 294
De Gaillon v. L’Aigle, i 181
Deeks and wife v. Strutt, i 549
Derry v. The Dutchess of Maz-
arine, i 180°
Dewberry v. Chapman, ii 85
De Symons v. Minchwich, ii 223
Dilk v. Keighley, i 149
Dimsdale v. Lanchester, ii 13
Dobson, Assignee, &c. v. Lock-
hart, i 489
Doe, ex dem. Ld. Say and Sele,
v. Guy, i 552
Drinkwater v. Goodwin, i 267
Duffit v. James, ii 362
Dunlop v. Waugh, ii 277
Dutch v. Warren, ii 81
Dutton and Wife v. Pool, i 27
$ . ii. 564
E
Eades v. Vandeput, i 224
Eaken v. Thom, i $80
East-India Company v. Hens-
ley, * i 241
v. Pullen, ii. 330
Eaton v. Sherwin, ii 531
Edgar, Assignee, &c. v. Fowlerii 126
Wol. Page.
Edwards v. Harben, i 545
v. Sherratt, ii 326
Egerton v. Matthews, i 108
Egles v. Vale, ii. 206
Eland v. Karr, ii 222
Elliot v. Edwards, ii 59
Elliot, Executor, &c. v. Rogers, ii 515
Ellis v. Mortimer, ii 215
v. Turner, ii 328
Elsee v. Gatward, i 365
Emerson v. Blonden, i 179
Ethrington v. Parrott, I 193
Evans v. Williams, i 339
v. Brown, i 492
v. Mann, i 432
v. Martlett, ii 319
Evelyn, Bart. v. Chichester, i 158
Ewes v. Hutton, i 190
Exall v. Partridge, ii 152
Eyles v. Faikney, ii 203
F.
Farrer v. Countess Dowager of
Granard, - i 183
— v. Nightingale, ii 58
Feise v. Randall, ii 443
Feltham v. Terry, it 50 558
Fenn v. Harrison, tº 240
Fenner v. Meares, ii 10
Fenton v. Emblers, i 88
Ferguson’s case, ii 530
Fielder v. Starkin, ... ii 277
Finucane v. Small, ii 338
Fish v. Hutchinson, i 68
Fisher v. Leslie, i 140
Fletcher v. Dyche, ii 539
Flureau v. Thornhill, ii 53
Ford v. Fothergill, i 157
Fores v. Johnes, ii 244
Forth v. Stanton, i 533
Forward v. Pittard, ii 291
Foster v. Thackery, ii 493
v. Scarlett, i 18
Foster’s case, tº 21
Foulkes v. Sellway, ii 415
Foxcroft, Assignee, &c. v. De-
vonshire, i 472
Furtado v. Rodgers, ii 98
G
Gallini v. Laborie, ii 390
Gardner v. Baillie, i 536
Garforth v. Fearon, ii 452
Garment v. Barrs, ii 27.
xii
INDEx of gaSEs CITED.
- Vol. Page,
Garrett v. Taylor, i 327°
Garside v. The Proprietors of
the Trent and Mersey Nav- / -
igation Company, ii. 292
Gibbon v. Paynton, ii 297
Giles v. Edwards, ii 84
Girardoy v. Richardson, ii 522
Godfrey v. Turnbull, i 325
Golden v. Manning, ii. 303
Good v. Elliot, ii 489
Goodall v. Skelton, ii 231
Goodburn v. Marley, ii 504
Goode v. Jones, - ii 22
Gorden v. Martin, ii 401
Govier v. Hancock, i 212
Grace v. Smith, i 291
Graham v. Hope, i 325
Grant v. Vaughan, , ii 12
Gratland v. Freeman, i 220
Greenway v. Hurd, if 25
Gregory v. Badcock, ii 514
Grimaldi v. White, ii 283
Groome v. Potts, i 423
Gunnis v. Erhart - ii. 65
H
Hall v. Elliot, i 548
Hands v. Slaney, i 155
Hanson v. Roberdeau, i 256
Harding v. Crethorn, ii 518
Hardress v. Prowd, ii 389
Harman, Assignee, &c. v. Fish- . .
ar, i 460
Harmer v. Killing, i 164
Harris v. Morris, i 188
— v. Huntback, i 56
- * ii 138 150
v. Richards, if 422
Harris’s case, i 20
Harrison v. Cage, ii 408
— v. Walker, i 509
Hasser v. Wallis, ii 43
Hatchett v. Baddeley, i 196
Harvey v. Gibbon, f 2
Hazard W. Tredwell, &n. 219
Hearn v. Tomlin, ii. 532
Heathcote v. Crookshanks, ii 43
Hebden v. Rutter, i 15
Heckscher v. Gregory, ii 251
Hereford v. Powell, i 271
Hennell v. Fairlamb, ii 563
Hernaman v. Bawden, i 37
Hiccox v. Proud, " . " ii 406
Hicks v. Hicks," ii 74
Vol. Page.
Hinde v. Whitehouse and Ga- -
lan, . g 120
Hiscox v. Greenwood, 223
Hoare v. Dawes, i 295
Hogan v. Shee, ii 83
Hodge v. Wavisor, i 25
Hodges v. Hodges, i 189
Hogg v. Horner, ii 104
Holman v. Johnson, ii. 239, 243
Holmer v. Viner, ii 437
Holmes v. Hall, ii 82
Holt v. Ward, ii. 410
Hookin v. Quilter, ii 523
Hoskins v. Slayton, i 334
Hovil, Assignee, &c. v. Brown- -
ing, " - ' ' ' 'i 452
Hovill, Assignee, &c. v. Pack, i 487
Houghton, Assignee, &c. v. Ma-
thews, i 268
Houlditch v. Milne, i 62
Houle v. Baxter, ii 157
Howard v. Baillie, i 538
— v. Castle, ii 218
– v. Hopkins, ii 547
Howes v. Martin, ii 154
Howson y. Hancock, it 125
Hullee v. Heightman, i 371
Hunt v. Bate, . i 20
— v. Silk, ii 57.
Hunter, Assignee, &c. v. Potts, i 496)
Hussey v. Fiddall, i 480
Hutton v. Mansell, ii 410
Hyde v. The Trent and Mersey
Navigation Company, ii 305
I.
Jacob v. Allen, 522
Jackson v. Vernon, i 335
Jaques v. Golightly, ii 128
Jenkins v. Tucker, * 191
Jennings v. Rundall, i 150
—— v. Harley, ii 423
Jestons v. Brooke, e. it. 1.16
Jeud wine v. Slade, ii 272
Innes v. Dunlop, Bart. ii 508
Johnson v. Bann, " r ii 506
— v. Johnson, ii 55
Joſies v. Clark, i 24
* v. Cooper, f 54
— v. Brinley, * if 404
v. Randall, ii 497
Israel v. Douglass, ii 7.
Irvin v. Wilson, ii 29
INDEx of CASEs CITED,
xiii.
K
Kannen v. M'Mullen,
Kaye v. Bolton,
Keate v. Temple,
Kellner v. Le Mesurier,
Kenrig v. Eggleston,
Kent v. Huskinson,
Kerr v. Mountain,
King v. Boston,
, Assignee, &c. v. Leith,
v. Scrape,
Kitchen v. Bartsch,
Knibbs v. Hall,
Kretchman v. Beyer,
L
Lacaussade v. White,
Lacon v. Mertins,
Lamine v. Dorrell,
Layfield’s case,
Leicester v. Rose,
Leigh v. Hewitt,
Leery v. Goodson,
Le Sage v. Cousmaker,
Lewis v. Wallace,
Limland v. Stephens,
Lindon v. Hooper,
Linton v. Bartlett, -
Long v. Allen,
Longchamp v. Kenry,
Loraine v. Tomlinson,
Love’s case,
Lowe v. Peers,
Loyd v. Lee,
Luke v. Lyde,
Lutterluh v. Halsey,
Lutwidge v. Grey,
M
Mackbeath v. Haldimand,
Mackenzie v. Banks,
— v. Scott,
Mackrell v. Simond,
Main v. Melbourn,
Male v. Roberts,
Manby v. Scott,
Manning v. Lévie,
March, Earl of, v. Pigot,
Marriot v. Hampton,
Marsh and Rainsford’s case,
Marshall v. Rutton; •
Vol. Page.
ii. 372
i 517
i 57
ii 102
ii. 295
i 101
ii 393
ii. 363
i 481
ii 130
i 423
ii 42
i 234
ii. 123
i 81
ii 558
i 319
ii 443
ii 529
ii. 21
ii. 406
ii. 523
I 370
it 51 559
i 455
ji 97
ii. 18
ii. 92
ii. 433
ii. 412 538
ii 431
‘i 349
i 278
i 344 347
i 272
i 145
i 254
i 356
i 82
i 161
i 193
i 135
ii 4.87
ii. 44
ii 417
i 17:5
Vol. Page.
Martin, Assignee, &c. v. Pew- -
tress, i 459
v. Court, ii 183
v. Sitwell, ii 87
Martyn v. Blithman, ii 435
Massiter v. Cooper, ii 393
Matson v. Wharam, i 54
M’Namara and Wife v, Fisheri 183
M’Neil v. Perchard, ii 30
Medina v. Stoughton, ii 263
Millish v. Motteux, ii 273
Menetone v. Athawes, i 331
Meredith v. Chute, ii 448
Mertens v. Adcock, ii 220
Merryweather v. Nixon, ii 190
Mesnard v. Aldridge, ii 280
Meyer v. Gregson, ii 96
Miller v. Aris, ii 33
Mitchell v. Reynolds, ii 467
Molloy v. Backer, i 364
Moore v. Mourgue, i 264
v. Wilson, ii 316
Morek v. Abel, ii 108
Morris v. Martin, i 211
Mors v. Slue, ii 320
Moses v. Macfarlan, ii 46
Munt v. Stokes, ii 110
Mussel v. Cooke, i 90
Mussen v. Price, ii 224
Myrtle v. Beaver, i 279
Mytton v. Cock, ii 340
N
Naish v. Tatlock, i 493
Nerot v. Wallace, i 28 515
Newby v. Wiltshire, i 320
Newdigate v. Davy, ii 50
Nichols v. Raynbred, i 15
Nicholson v. Willan, ii 299
Nickson v. Brohan, i 245
Nightingale, Assignee, v. De-
visme ii 20
Norman v. Cole, ii 127 403
Norris v. Napper, ii 20
Norton v. Fazan, i 213
Nurse v, Craig, i 199
Orr v. Churchill, ii 545
Osborne v. the Governors of
Guy’s Hospital, ii 406
Owen v. Gooch, i 249
Oxford, St. John's College, v,
Murcott, .. ii 31
xiv INDEX OF CASES CITEI),
Vol. Page.
P
Packhurst v. Smith, ii 534
Padget v. Priest, i 543
Parke v. Eliason, - i 303
Parker v. Baylis, i 534
—v. Brown, ii 466
Parkinson v. Lee, ii 267
Parslow v. Dearlove, i 412
Parsons v. Thomson, ii 458
Partridge v. Sowerby, ii. 527
Paul v. Jones, i 415
Payne v. Whale, ii 77
v. Cave, ii 217
Pearce v. Rogers, i 222
Pearle v. Unger, i 23
Peck v. Wood, ii 196
Penson v. Lee, ji 87
Pepper v. Burland, ii 360
feter v. Compton, i 87.
Phillipson v. Leigh, it 528
Philpott v. Wallet, i 72
Pickard v. Bonner, ii 112
Pickering v. Appleby, i 89
v. Barclay, ii. 325
Pierson v. Dunlop, ii 15
Pine v. Morris, ii 565
Pinkerton, Assignee, &c. v.
Marshall, i 440
|Pitt v. Yalden, ii 386
Please v. Palfrey, i 5
Plymouth, Countess of, v.
Throgmorton, i 229
Pond v. Underwood, i 523
Pope v. St. Leger, ii 506
Poulter v. Killingbeck, i 75
v. Cornwall, ii 5
Powell v. Millbank, ii 134
Power v. Wells, ii 77
Powley v. Walker, - ii 529
Precious v. Abel, i 230
Price v. Neale, ii 35
Pyke v. Williams, i 81
Q
Queensbury, Duke of, v. Gullen,
In Error. i 7.
R
Rann v. Hughes, i 10 49
i
Rawlinson v. Shaw, 539
Rawlyns v. Vandyke, i 194
Vol. Page.
Read v. Nash, i 60
Read’s case, i 542
Redpath v. Roberts, ii 521
Reed v. Mestaer, ii 229
Ribbans v. Crickett, ii 356
Rice v. Chute, i 282
—v. Everitt, i 284
Rich v. Cox, i 332
Richards v. Borrett, ii 72
—v. Barton, ii 286
Robinson v. Bland, ii 144
—v. Anderton, ii. 65
v. Hendman, i 230
–v. Dunmore, ii 336
Robinson v. Gosnold, i 187
Robson v. Hall, º 140
Roe v. Haugh, ii 449
Rogers v. Reeves, ii 435
Rolf v. Peterson, w ii 538
Rondeau v. Wyatt, i 93 99
Rothwell v. Humphreys, i 318
v. Cooke, ii 89
Rucker v. Cammeyer, i 127
Rusby v. Scarlett, i 222
Russel v. Palmer, ii 384
Russel v. Hankey, i 265
v. Russel, t i 80
Rutter v. Hebden, ii 408
S.
Sanders v. Kentish, ii 260
Sangster v. Birkhead, ii 200
Sandhill v. Jenny, ii 417
Saunderson v. Jackson, º 116
Scarman v. Castell, i 231
Scott v. Surman, e 496
Scurfield v. Gowland, ii 70
Seagood v. Meale and Leonard, i 109
Searle v. Keeves, i 96
Secar v. Atkinson, i 530
Selway v. Holloway, ii 295
Shaw v. Whitman, ii 354
Sheppard v. Johnson, ii 262
Shiells v. Blackburne, ii 347
Shipman v. Thomson, i 526
Shirley v. Newman, ii 519
Shirreff v. Wilks, i 311
Shove v. Webb, ii 67
Sidenham and Worlington’s casei 21
Sigard v. Roberts, i 387
Silk v. Osborne, i 421
Sill v. Worswick, i 492
Simmons v. Wilmott, i 398
INDEX OF CASES CITED,
Simon v. Motivos or Metivier, i
Simond v. Boydell, il
Simpson v. Robertson, l
Vol. Page.
119 — v. Day, ".
s’,”
98 .- W. Wºº. *
161" Thompson v. Härvey;.
Singleton, Assignee,&c.v.Butler.i.
Skinner v. Upshaw, f 9
Slade’s case, l 553
Slater v. Baker, ii 373
Sloman v. Walter, ii 541
Smith, Assignee, &c. v. God-
dard, A i 483
v. Payne, i 470
v. Buchanan, i 416
— v. Lascelles, j 262
v. Bromley, ii 118
v. Nissen, ii 178
— v. Shepherd, ii 323
— v. Dickinson, ii 481 545
v. Mapleback, ii 515
v. Jameson, i404 430 514
Snaith, Assignee, &c. v. Gale, ii 155
Southall v. Ledbetter, ii 194
Southcote’s case, ii 340
South Sea Company v. Dun-
comb, ii 141
Sparrow v. Corruthers, i 180
Spurrier v. Elderton, - 258
Stackpole v. Earle, ii 464
Stansfield v. Johnson, i 128
Stephens v. Squire, i 60
Stephenson v. Hardy, ii. 140
Stevenson v. Mortimer, ii 27
v. Snow, ii 88
Stock v. Mawson, ii 442
Stokes v. Lewis, ii 151
Stone v. Carr, i 168 192 353
Stracy v. Deey, i 307
Straton v. Rastall, ii 69
Stubbing v. Heintz, i 221
Sturdy v. Ross, i 266
Sturlyn v. Albany, i 17
Swan v. Steele, i 308
Swears v. Wells, ii 571
Symonds v. Ball, i 128
T
Tappenden, Assignee, &c. v. Ran-
dall ii 120
Tatlock v. Harris, ii 14
Taylor v. Mills & Magnall, i 415 ii. 180
Taylor v. Hare ii 41
v. Higgins, ii 185
Temple v. Welds, ii 25
Thomas v. Bishop, i 252
—- v. Collins,
— v. Miles,
Thompson, Assignee,&c. v. Free-
Iman,
Thrupp v Fielder,
Todd v. Stokes,
Tooke v. Hollingworth,
Tomkins v. Bernett,
Toussaint v. Martinnant,
Tounsend v. Hunt,
l
Towers v. Sir John Osbourne, i
v. Barrett,
Trueman v. Fenton,
Trueman v. Hurst,
Tubb v. Harrison,
Turner v. Baynes,
v. Phillips,
v. Davies,
Turrell v. Collett,
Tuson v. Batting,
Tyley v. Sir Joseph Morrice,
Tyrie v. Fletcher,
U
Upsdell v. Stuart, \
V
Vale v. Bayle,
Vandyck v. Hewitt,
Vere v. Lewis,
ii
i;
ii
11
Ti
I
i
ii
ii
i
ii
ii
ii
ii
ii
ii
ii
Vernon, Assignee, &c. v. Hall, i
v. Hankey,
v. Hanson,
Virany v. Warne,
W
Waddington v. Bristow,
v. Oliver,
Wain v. Warlters,
I
i
ii
i
ii
I
Walford v. The Dutchess de
Pienne,
Walker v. Chapman,
Warcop v. Morse,
l -
ii
i
Ward v. Evans, i 244, ii
Waters v. Glassop,
Watson v. Thelkeld,
v. Turner,
Waugh v. Carver,
ii
i
i
i
369
232
107
14
438
485
485
388
143
223
193
181
113
421
215
397
286
xvi INDEx To CASEs CITEI.
Vol. Page. Wol. Page,
* *
Wayland’s, Sir Robé i 219 — v. Dyde, i 427
Waymell v. Reed, iis, 34?SR- v. Harrison, i 149
Webb’s case, '• is,. 2 v. Millington, $ i 254
Weddell v. Lynam, fi 1 eper, i 61. ii 434
Welford v. Beazley, i 111 Wºble. W. Malmberg, i 138
Wells v. Masterman, i 310 Winch V. Keeley, i 420
Wennall v. Adney, i 232 Winkworth v. Mills, i 69
Weston v. Downes, ii 76 Winn v. White, ii 530
Wettenhall v. Wood, ii 148 Wyatt v. the Marquis of Hert-
Whaley v. Bagnelor Bagenal, i 86 ford, i 246
— v. Pajot, ii. 502 •
Whalley v. Wray, ii. 327 X tº
White v. Boulton, ii 393 *. - * .
Whitfield v. Savage, ii 15 Ximenes v. Jaques, i 137. ii. 502
Wittingham v. Hill, i 148
Whitwell v. Bennett, ii 17 Y
Why wall v. Champion, i 149
Wilkins, Assignee,&c.v.Casey, i 437 Yarker v. Botham, i 513
Wilkinson v. Frasier, i 393 Yate v. Willan, ii 302
Willet v. Chambers, i 320 Young v. Axtell, i 293
Williams v. Brown, i 372 — v. Hockley, i 414
&
*


THE
LAW of contRACTs.
PART m FIRST.
of THE NATURE AND REQUISITES OF A CONTRACT
.AND AGREEMENT BY PAROL. *
* Dººms
CHAPTER I.
of THE NATURE of A contRACT AND AGREEMENT BY PARol ;
AND OF EXPRESS AND IMPLIED CONTRACTS AND PROMISES,
ALL contracts are by the laws of England distinguished into
agreements by specially, and agreements by parol. If they be merely
written, and not under seal, they are denominated contracts by pa-
rol.(a) - -
As contracts and agreements between merchants and others are
most commonly entered into either verbally, or in writing without (a) Per Ld.
seal, the present work is wholly confined to contracts and agree- º
tº gº Skynner, in
ments usually denominated parol ; and these alone, it may be observ- thiſ case of
ed, are the subject matter of the action of assumpsit. fºann v.
Hughes, 7.
. * . - Term Rep.
*Now a contract by parolis defined to be a bargain or agreement 350, n. *,
voluntarily made, either verbally, or in writing not under seal, upon º
a good consideration, between two or more persons, capable of con-
tracting, to do or forbear to do some lawful act; as if a man sells or
exchanges cattle or goods for money or any other commodity; or
[1]

2 Of the Nature of a Contract, &c. [PART I.
agrees in consideration of a sum of money to make a lease of lands, or
(b) Note a forbear º a legal claim, &c.(b) And these are valid con-
*:::::: tracts, because there is, what lawyers commonly term, quid pro quo,
in writing or one thing for another. Butxºa man without any other consider-
º *ation than mere good will, or *tºl affection, make a voluntary
contract by promise to give to another a sum of mºney, as for instance, 201 and
specially. that he will be his debtor for that sum ; this is no contract, but a mere
naked promise or nudum pactum ; for, however a man may or may
not be bound to perform such a promise, in honor or conscience,
which the municipal laws of this country do not take upon them to
decide ; certainly those municipal laws will not compel the execution
of what he had no visible inducement to engage for: and therefore
our law has adopted the maxim of the civil law, that ex nudo pacto
non oritur actio. But any degree of reciprocity will prevent the pact
or promise from being nude ; and therefore, in the instance put, if
any thing, however trifling, were done, or to be done or given for the
(c) Wide 20l. it would be a valid contract, and binding upon the parties.(c)
Termes de
#".* The definition of an agreement is thus given in our law books:
Abr. tit. Con- “An agreement is, aggregatio mentium, viz. when two or more minds
;:‘... s: “are united in a thing done or to be done, or where a mutual assent is
2 BI. Com. “given to do or not to do a particular act.”(d) And it is observed,(e)
º; Com. Dig. that every contract and agreement ought to be so certain and com-
tit. Agree- plete that each party may have an action or other remedy upon it.
ment, A. 1.
Pl. Com. 5.
17. 5. East, Now in order to render a contract or agreement certain and com-
§ Pl, Com plete, six things appear necessary to concur : 1. A person able to
5.
contract; 2. A person capable to be contracted with ; 3. A thing to
# 3 be contracted for; 4. A good and sufficient consideration *or quid
pro quo ; 5. Clear and explicit words to express the contract or
(f) Wide Pl. agreement; 6. The assent of both the contracting parties.(f) So, ev-
º ery contract should be obligatory on both the contracting parties, or
(g)'s rerº, both should be at liberty, to recede therefrom.(g) But to an agree-
§ºm ment or contract there is not any prescribed form of words; but any
#6. “ ” words which show the assent of the parties are sufficient.(i)
A contract or agreement conveys an interest either in possession,
or in action ; as if A. agrees to change horses with B., and they do it
immediately ; or if goods are sold and delivered and paid for at one
time; here the possession and the right are transferred together ; and
such contract or agreement being executed and complete, is common-
ly termed an executed contract. But where fl. for a valuable considera-
tion contracts with B. to pay him 100l. at a day to come; in this case,
though 4. thereby transfers a property or interest in such sum to B.
yet such property or interest is not in possession but in action mere-


CHAP. I.] Of Express Contracts or Promises. , 3
ly, and recoverable by suit at law ; and the contract not being per-
formed, is therefore usually denominated an executory contract. (i) (i)2 Bl.Com.
443.
*
*ºnes
Of Express Contracts or Promises.
Contracts and agreements without seal are either expressed or im-
plied. Papress contracts are where the terms of the bargain, agree-
ment, or promise, are openly uttered and expressed by the contract-
ing parties themselves. The subject matter of this class of contracts
relates either to the person or property of the contractors, and may
be either to do or forbear to do a particular act ; as, to pay, money on
the sale or exchange of cattle or goods ; to pay rent for the use and
occupation of lands or houses ; to pay money on particular mercan-
tile securities or agreements ; to pay the debt of a third person ; to
pay money won or lost at play; to perform works; to accept, deliv-
er, or take back goods, &c.; to accept, transfer, or replace stock;
to let or take lands or houses ; to warrant the title to lands; to
warrant the soundness or quality of *cattle or goods ; to indemnify ; * 4
to marry ; to forbear to sue ; not to trade within a particular dis-
tance, &c.
** ºr
•
Express contracts or promises ought to be certain and explicit;
but certainty to a common intent is sufficient ; (k) as if a man prom- (*) Com.
ises another, in consideration that he will assign to him a certain term, ;..."
to pay him 101, this is a good assumpsit, though the time of the as-sungi, A.3.
signment and the payment be not appointed; for the 10l. shall be 4.
paid in a convenient or reasonable time after the assignment, which
also must be made within a reasonable time after the agreement.() () Roll.
3: Abr. 14. 1.50.
So, if ºff. be indebted to B. for certain things to him sold, and C.
comes to B. and, for a good consideration, promises him that if .4.
should not pay him the money, he will pay it for him; an action upon
the case lies for B. against C. upon this promise, if 4 does not pay
the money within a convenient or reasonable time ; for so shall the
promise be taken, viz. that if 4 does not pay it in a convenient time,
that then C. will pay it for him.(m) (m) 1 Roll.
* Abr. 15. l. 5.
So, where fl. in consideration that B. would marry his daughter,
promised to give with her a child’s part; and that, at the time of
his death, he would give to her as much as to any of his children, ex-
cept his eldest son; this was holden to be a good promise : for
though a child's part is in itself altogether uncertain, yet, it being
4. of implied Contracts or Promises. [PART 1.
shown what the rest of the children had except the eldest, it is then
(n) Silvester's reduced to a sufficient certainty.(n)
‘...º. But if a citizen of London promises a child’s portion, this of itself
148.2 Roll. . º • * *
R. 10. S. is certain enough; for by the custom there it is known how much
C. each child shall have.(0) w
) P So, an assumpsit to give a bond for 40l. without saying in what pe.
Sº, nally, is good; for it shall be intended double the sum.(p)
Ch. J. 2 Roll.
Rep. 104.
§ii.33. But, where the plaintiff declared that, whereas there was a commu-
nication between him and the defendant concerning the bark of cer-
tain wood, and that thereupon it was agreed, that the *defendant
# 5 should give to the plaintiff two shillings per seam for all the bark of
such wood as the plaintiff should cut; and that the defendant as-
sumed and promised to have ready upon a certain day articles in
| writing purporting that agreement, and an obligation for performance
thereof, &c., the declaration was holden not to be good ; because it
was not said in what sum the obligation was to be, and a certain sum
could not be intended, because the number of seams were altogether
uncertain.(q)
(g) Please v.
#º º No express contract or agreement can be raised from a mere casual
776, S.C. speaking or declaration in discourse ; as, if there be a discourse be-
tween the father of A. and B. in relation to a marriage between ºff.
and the daughter of B. ; and B. in that discourse declares and pub-
lishes to the father of 4. that he would give to him who should marry
his daughter with his consent 100l. and fl. after this declaration mar-
ries the daughter of B., with his consent; yet it was holden, that this
declaration and publication of B. shall raise no promise upon which
an action of assumpsit may be brought; for these general words do
not include any promise ; and the agreement must be complete
upon which an express assumpsit lies.(r)
(r) 1 Roll.
Abr. 6. l. 40.
1 Dan. Abr. *sºmée
26. Com. Dig. ,
tit. Action of ,
•Assumpsit,
• 2. Of implied Contracts or Promises.
Implied contracts or promises are such as reason and justice dic-
tate, and which, therefore, the law presumes that every man under-
takes to perform. As, if a person is employed by another to do any
business for him, or perform any work, and nothing is agreed upon
as to the price of his labour, the law implies that the employer un-
dertook or contracted to pay the person so employed as much as he
reasonably deserves for his labour. So, where a man orders goods of
CHAP. I.] Of implied Contracts or Promises.
a tradesman without any agreement of price, the law concludes that
the buyer contracted to pay to the seller their real value.(8)
From hence it may be collected that all implied contracts or promi- #.
ses are founded on some legal liability to pay a debt, or perform *a 250.
duty. Therefore, besides the instancesjust mentioned, when money
is lent and advanced, paid, laid out, and expended, orhad and received;
and nothing is expressly stipulated by the parties, as to the repayment
thereof, the law raises an implied promise that it shall be repaid upon
request. So, when money is due on an account stated; or for fines
on admissions into copyhold premises; for fines and duties payable to
corporations ; for fees payable to particular officers; for petty cus-
toms and tolls; for general average ; for the salvage of ship or goods;
for the carriage or wharfage of goods; for money due on awards, or
foreign judgments : So also, as between landlord and tenant, that the
latter shall use his farm, &c.in a husbandlike and proper manner. In
these instances also, and various others which might be mentioned,
though no express agreement be made, a legal liability arises; and the
law presumes that the party promised to pay the debt, or perform the
duty.
The last class of contracts, implied by reason and construction of
law, arises upon this supposition, that every one who undertakes any
office, employment, trust, or duty, centracts with those who employ or
entrust him, to perform it with integrity, diligence, and skill. And,
if by his want of either of those qualities any injury accrues to indivi-
duals, they have therefore their remedy in damages by action. A few
instances will fully illustrate this matter. If a surgeon, attorney, or
any other professional person isguilty of neglect of duty, or a palpable
breach of it, he is liable to an action on an implied assumpsit or promise
for a reparation in damages for the injury sustained in consequence of
such neglect. There is also in law always an implied contract with a
common inn-keeper, common carrier, wharfinger, warehouse-keeper,
or other bailee to be answerable for the goods entrusted to their care;
with a common farrier that he shoes a horse well without laming him;
with builders and other workmen that they perform their business in a
workman-like manner ; in which if they fail, an action on the case
either in tortor assumpsit lies to recover damages for such breach of
their general undertaking. But if a person is employed to transact
any of these concerns whose common profession and business it is not, .
the law implies no such general undertaking; but in order to charge
him with damages an express agreement is required. ()
(s)? Bl. Com.
443. But see
Raym.
6 Mod.
# 6
(t) Wide 8 Bł.
Com. 165.
who may contract, &c. ,” [PART. I.
# 7. *It is difficult to state with certainty what contracts and promises
are exclusively implied ; though, as a general rule, it may be observed,
that promises in law only exist where there is no express stipulation
(w) Per. * between the parties.(…) i
ber, Just.
Term. Rep. º g -
105. [How far this rule will apply when the express contract is of such
a nature that no remedy will lie for a breach of it, where at the same
time there is a sufficient consideration to support an implied Con-
tract, may be a question.—Worthen & al. vs. Stephens. iv. Mass,
Rep. 448–Goodenow vs. Tyler, vii. 36.]
*D4Qº-w
Who may Contract, &c.
The parties to a contract are two or more, namely, the person or per-
sons who contract the obligation to do or forbear to do aparticular
act, and the person or persons in whose favour it is contracted.
Generally speaking, all persons except infants and married women,
having capacity and understanding, may, by mutual assent, become
ſº parties to a contract, and bind themselves and their personal represen-
£. º: ti. tatives to a performance thereof.(v) In some cases indeed as will be
A... shown in a subsequent part of this work, infants and married women
A. may legally enter into a contract.
Contracts and agreements are entered into by individuals either
for themselves or third persons; and the liability of the parties there-
to must wholly depend upon the general nature and terms of the con-
tract. Thus, where ºff. B. and C. on behalf of themselves and other
members of a club, entered into articles of agreement with D. to pro-
vide necessaries for the use and accommodation of the club ; it was
holden that the three were personally bound by such articles; and
that D. was not obliged to resort to any of the other members for
satisfaction of his demands.(w
(w) Duke of (w)
Queensbury tº º ſº
and others v. In this chapter, however, it is not necessary to dwell further on
$ºw. these points, as they will come under a more distinct and particular
396, 8vo. ed.consideration in the second part of this work
*CHAPTER II. # 8
er THE conside RATION NEcEssary To support A contract or
AGREEMENT.
IT is essential to every contract or agreement that it be found-
ed upon a good consideration.
The civilians hold, that in all contracts, either express or implied,
there must be something given in exchange, something that is mutual
or reciprocal. This thing, which is the price or motive of the con-
tract, we call the consideration ; and it must be a thing lawful in it-
self, or else the contractis void.
A contract for any valuable consideration, as for marriage, for
money, for work done, or for other reciprocal contracts, can never be
impeached at law ; and, if it be of sufficient adequate value, is never
set aside in equity: for the person contracted with has then given an
equivalent in recompense, and is therefore as much an owner, or a
creditor, as any other person.(a) (a) 2 B1.
Com. 444.
These considerations are said(b) to be divided by the civilians into (º) Ibid. see
four species. 1. Do, ut des: as when I give money or goods on a con- also Treat. of
tract, that I shall be repaid money or goods for them again. Of this #...". 5.
kind are all loans of money upon bond, or promise of repayment; and
all sales of goods in which there is either an express contract to pay
so much for them, or else the law implies a contract to pay so much as
they are worth. 2. The second species is, facio, ut facias; as, when I
agree with a man to do his work for him, if he will do mine for me;
or if two persons agree to marry together; or to do any other posi-
tive acts on both *sides. Or, it may be to forbear on one side on con-
sideration of something done on the other; as, that in consideration
4., the tenant, will repair his house, B., the landlord, will not sue
him for waste. Or, it may be for mutual forbearance on both sides ;
as, that in consideration that A. will not trade to Lisbon, B. will not
trade to Marseilles ; so as to avoid interfering with each other. 3. The
third species of consideration is facio, ut des : when a man agrees to
perform anything for a price, either specifically mentioned, or left to *
the determination of the law to set a value on it. And when a servant
hires himself to his master for certain wages, or an agreed sum of
money; here the servant contracts to do his master's service, in order
# 9
$ Of the Consideration necessary. [PART. I.
to earn that specific sum. Otherwise, if he be hired generally; for
then he is under an implied contract to perform this service for what
it shall be reasonably worth. 4. The fourth species is, do, ut facias :
which is the direct counterpart of the preceding. As when I agree
with a servant, to give him such wages upon his performing such
work: which we see is nothing else than the last species inverted : for
servus facit, ut herus det, and, herus dat, ut servus faciat.
A consideration of some sort or other is so absolutely necessary to
the forming of a contract, that a nudum pactum, or agreement to do or
pay any thing on one side, without any compensation on the other, is
$º. Bl.Com. totally void in law; and a man cannot be compelled to perform it.(c)
But it is observed,(d) as this rule was principally established, to
avoid the inconvenience that would arise from setting up mere verbal
promises, for which no good reason could be assigned, it therefore
does not hold in some cases, where such a promise is authentically
proved by written documents. For if a man enters into a voluntary
bond, or gives a promissory note, he shall not be allowed to aver the
want of a consideration in order to evade the payment: for every bond
from the solemnity of the instrument, and every note from the sub-
scription of the drawer, carries with it an internal evidence of a good
consideration. ' Courts of Justice will therefore support them both, as
against the contractor himself; but not to the prejudice of creditors,
or strangers to the contract.
(d) Ibid.
# 10 *This observation, as far as it respects promissory notes, and other
written contracts not under seal, is certainly supported by the opin-
(e) 3 Burr. ion of Mr. Justice Wilmot, in the case of Pillans v. Van Mierop,(e)
1671. who said, “I cannot find that a nudum pactum evidenced by writ-
“ing has been ever holden bad : and I should think it good; though
“where it is merely verbal, it is bad. Yet I give no opinion upon its
“being good, always, when in writing.”
| The law, however, on this point is now settled; and the rule is,
| that a verbal agreement, or promise, though reduced into writing, is
not valid, unless a consideration be proved.
| Thus in the ease of Rann and another, executors of Mary Hughes
(f); Term * Isabella Hughes, administratrix of J. Hughes, in error (f) the dec-
ićep. 350. m. laration stated, that on the 11th June, 1764, divers disputes had
º,º: JMay. arisen between the plaintiff’s testator and the defendant’s intestate,
Tº"/8. which they referred to arbitration ; that the arbitrator awarded that
the defendant’s intestate should pay to the plaintiff’s testator 983!.
That the defendant’s intestate afterwards died possessed of effects
sufficient to pay that sum ; that administration was granted to the
defendant; that Mary Hughes died, having appointed the plaintiffs
CHAP. II.] to support a Contract.
her executors; that at the time of her death the said sum of 9831.
was unpaid, “by reason of which premises the defendant as admin-
“istratrix became liable to pay to the plaintiff’s as executors the said
“sum, and being so liable she in consideration thereof undertook and
“promised to pay, &c.
The defendant pleaded non assumpsit; plene administravit; and
plene administravit, except as to certain goods, &c. which were not
sufficient to pay an outstanding bond debt of the intestate’s therein
set forth, &c. The replication took issue on all these pleas. Ver-
dict for the plaintiff on the first issue, and for the defendant on the
two last; and on the first, a general judgment was entered in the
court of King’s Bench against the defendant de bonis propriis. This
judgment was reversed in the Earchequer chamber; and a writ of er-
ror was afterwards brought in the House of Lords, where, after argu-
ment, the following question was proposed to the Judges by the Lord
Chancellor ; * Whether sufficient matter appeared upon the declara-
“tion to warrant after verdict the judgment against the defendant in
“in error in her personal capacity ?” Upon which the Lord Chief
Baron Skynner delivered the opinion of the Judges to this effect —
“It is undoubtedly true that every man is by the law of nature bound
“to fulfil his engagements. It is equally true that the law of this
“country supplies no means, nor affords any remedy to compel the
“performance of an agreement made without sufficient consideration;
“such agreement is nudum pactum ea quo non oriter actio; and
“whatsoever may be the sense of this maxim in the civil law, it is in
“ the last mentioned sense only that it is to be understood in our law.
“The declaration states, that the defendant being indebted as admin-
“istratrix, promised to pay when requested, and the judgment is
“against the defendant generally. The being indebted is of itself a
“sufficient consideration to ground a promise, but the promise must
“be coextensive with the consideration unless some particular con-
“sideration of fact can be found here to warrant the extension of it
“against the defendant in her own capacity. If a person indebted in
“one right, in consideration of forbearance for a particular time pro-
“mise to pay in another right, this convenience will be a sufficient
“ consideration to warrant an action against him or her in the latter
“right: but here no sufficient consideration occurs to support this de-
“mand against her in her personal capacity; for she derives no ad-
“vantage or convenience from the promise here made. For if I pro-
“mise generally to pay upon request, what I was liable to pay upon
“requestin another right, I derive no advantage or convenience from
“this promise, and therefore there is not sufficient consideration for
“it. But it is said that if this promise is in writing, that takes away
“ the necessity of a consideration, and obviates the objection of nu-
“dumpactum, for that cannot be where the promise is put in writ-
Vol. I. [2]
^,
# 11
10
Of the Consideration necessary [PART I.
ºf
“ing; and that after verdict, if it were necessary to support the pro-
“mise that it should be in writing, it will, after verdict, be presumed
“that it was in writing: and this last is certainly true; but that
“there cannot be nudum pactum in writing, whatever may be the rule
“of the civil law, there is certainly none'such in the law of England.”
His Lordship observed upon the doctrine of nudum pactum delivered
by Mr. J. Wilmot in the case of Pillans v. Van Mierop, 3 Burr. 1663.
“that he contradicted himself, and was also contradicted by Vinnius,
“in his comment on Justinian.”y-All contracts are by the laws of
/ England distinguished into agreements by specialty, and agreements
* 12
Burnet v.
Bisco. 4
Johns. Rep.
235. 297.
*by parol; nor is there any such third class, as some of the council
have endeavoured to maintain, as contracts in writnig. If they be
merely written and not specialties, they are parol, and a considera-
tion must be º it is said that the statute of frauds has ta-
ken away the necessity of any consideration in this case; the statute
of frauds was made for the relief of personal representatives and
others, and did not intend to charge them further than by common
law they were chargeable. His Lordship here read those sections of
that statute which relate to the present subject. He observed, that
the words were merely negative, and that executors and administra- .
tors should not be liable out of their own estates, unless the agree-
ment upon which the action was brought, or some memorandum there-
of, was in writing and signed by the party. But, said his lordship,
this does not prove that the agreement was still not liable to be tried
and judged of as all other agreements merely in writing are by the
common law, and does not prove the converse of the proposition that
when in writing the party must be at all events liable. He here ob-
served upon the case of Pillans v. Van Mierop, in Burrow, and the
case of Losh v. Williamson, Mich. 16 G. III. in B. R. and so far as
these cases went on the doctrine of nudum pactum, he seemed to in-
timate that they were erroneous. He said, “that all his Brothers
“concurred with him, that in this case there was not a sufficient con-
“sideration to support this demand, as a personal demand against the
“defendant, and that its being now supposed to have been in writing
“ makes no difference. The consequence of which is, that the ques-
“tion put to us must be answered in the negative.”
The same rule also applies to promissory notes and bills of ex-
change, as well as to all other contracts in writing without seal. This
rule, however, extends only to the immediate parties to a bill or note,
and does not affect third persons, who happen to be strangers to the
want of consideration as between those parties. For instance, if an
action be brought upon a note or bill, at the suit of the payee against
the drawer, or, by the indorsee against the indorser, for which no
\ consideration was given, the plaintiff, in either case, cannot recover.
CHAP. II.] to support a Contract. T1
[The case in which a note may be avoided, as nudum pactum, is
not where there was originally no consideration, contrary to the ex-
press admission of the promisor, but where the consideration has fail-
ed, or rested in mistake or misapprehension ; what the parties sup-
posed to be a consideration turning out in fact to be none. Bowers
v. Hurd. admin’r. x. Mass. Rep. 427. See Bowtelle v. Cowdin, ad-
min’r. ix. Mass. Rep. 254.]
But the want of consideration, as between the maker and payee
of a note or bill, cannot be set up in an action against either of them
at the suit of an indorsee, unless it be proved, that he was “acquaint- # 13
ed with this circumstance at the time of taking the note or bill.(g) º; gº
674. 2 Term.
º The reason why third persons ought not to be affected by this rule #. #!
is, that bills and notes being negotiable instruments, by mere indorse- 11%. 26i.
ment and delivery, it would be enabling the original parties to assist #ſº 2
• - - * I te
in a fraud, if they were to be allowed to set up the want of considera- jöhity on
tion, as between themselves, in bar to an action against either of Hills, 9 ºl.
them, at the suit of an indorsee for a valuable consideration. º**
Lord Mansfield is reported(h) to have said that “ in commercial 343.2, ed.
“ cases amongst merchants, the want of consideration is not an ob- º Burr.
jection.” But this observation, it is apprehended, must be under-
| stood to apply only to cases of bills and notes when in the hands of
\ an indorsee. For in all other contracts and agreements, not under
| seal, whether mercantile or otherwise, a consideration is absolutely
necessary. Indeed, a bargain without a consideration is said to be a
- contradiction in terms, and cannot exist.(i) (3) Per Lord
Tºr’ Doughbor-
º º tº ough, in the
I now proceed to show what consideration is necessary to support case of Mid-
dleton v. Ld.
a contract or agreement. Kenyon, 2.
f Wes. jun. 408.
It is a known rule of law, that to make a contractor agreement ob-
ligatory the consideration must be either a benefit to the party prom-
ising, or some trouble or prejudice to the party, to whom the promise @ 9". Pig.
e o º º tit. Action on
} is made ; otherwise the contract or agreement is considered as nu- ºne º up-
{ dum pactum, and cannot be enforced.(k) : *
Jº e e e
Thus, a promise in consideration of the forbearance of a suit for a Q). Mºde.
certain time, is good ; for that is for the benefit of the defendant, §. .
though the action is not discharged.() But, a promise in considera- 4.768. 84
tion of forbearance is not valid where there was originally no cause vide post.
º gº & a tº º Part III.
of action; as, in consideration of forbearance of a suit upon a 'con- # 14
tract made by a married woman.(m) A promise in consideration of (m) Str. 94.
surceasing of a suit is good; for that i (n) Hob. 216.
º gº gºod; for that is a benefit to the defendant, "º".
and aprejudice to the plaintiff, though the action is not discharged.(n) is i. 20, 30.
2 Bulst, 41.
Pał. 394.
12 Of the Consideration necessary [PART I.
\ } [A forbearance to sue generally is a good consideration for a prom-
ise to pay the debt of another. Elling et al. v. Vanderlyn, 4 Johns.
fººp. 287.
So, in consideration of the discharge of a debt, or the delivery of a
§ . Dig'ſbond, or other security.(0)
... W. So, in consideration of the proof of a debt, for it is a charge to the
sumpsit, B. 3. plaintiff; as if an executor promise, in consideration of the proof of
§ | **. the delivery of goods to his testator, to pay for them (p) So, if the
369. T. Ray. parties agree to a particular manner of trial of the validity of a debt,
; º * it shall be determined in such manner.(q)
(q) 3 fev, So, in consideration of any particular service or labour by the par-
241. ty to whom the promise is made ; as, to procure the enjoyment of a
(r) Yelv. º house;(r) or to procure a note, &c. from the debtor of the party prom-
(s) 2 Went. ising.(8)
71. 74. Orin consideration that the plaintiff would act for the defendant as
() show, a commissioner to examine witnesses.()
342, So, in consideration of permission to do an act; as, to permit a wife
to take out administration durante minori actate of her son ; for it does
(º) 1 Roll, * belong to her.(v)
Abr. Yºº 1. So, in consideration of leave of absence from a regiment for a rea-
; 1 Eld sonable time.(a)
Ray. 312. So, in consideration of any other act, by which the defendant has
benefit; as, in consideration that the plaintiff would deliver to the de-
fendant certain goods, in which the plaintiff had only a special prop-
(y) Cro. Eliz erty; for the defendanthas a benefit by the present possession.(y)
218. Wide So, in consideration of the release of an equity of redemption.(2)
}: 4, 50. So, a promise in consideration of the assignment of an uncertain
G. Ld. Ray. debt.(?) tº
662. So, a promise to accept a bill in consideration of the acceptance of
(a) 2 Bl. Rep. f l b
20. another of equal amount.(b)
(b) 7 Term *So in consideration of marriage ; as, upon a communication of a
**** marriage, a cousin of the husband promises the wife to give her 100l.
# 15 if the husband’s father does not assure such land.(c)
(c) º; F. So, a discharge of a promise of marriage by a woman to a man is
§ ! º a good consideration.(d)
Abr. 470. l. So, in consideration of the voluntary performance of an act, which
#iºn. the plaintiff was compellable to perform ; as, if thep laintiff will dis-
400. charge a debt, for which he and the defendant are sureties, the de-
(e) 1 Roll fendant will repay the moiety.(e) |
Ş. 20, i. 50. So, a promise to cancel a bond in consideration that the obligee
$ºº: will pay the single sum due upon it.(f)
(Cro.Eliz. 1944
\
CHAP. II.] to support a Contract. 13
of Mutual Promises.
A promise for promise is a good consideration; as in consideration
of a reciprocal promise of marriage.
Thus, in the case of Hebden v. Rutter,(g) the plaintiff declared, § 1 Sid. 180.
that in consideration that she promised to marry the defendant, the i.º.º.
defendant promised to marry the plaintiff; and averred that the 1. 5. 1 Lev.
plaintiff requested the defendant to marry, but the defendant refused, #. §:
&c. And to this declaration the defendant demurred. And it was Cas. 155.1
said, that there was not any consideration ; for marriage is a matter ; #. 5
merely spiritual, and no ground for assumpsit at common law. Sed Ld. Raym.
per Curiam, “the declaration and consideration in this case are good; 386, S. P.
“for marriage is a preferment, and the loss of it is a temporal loss.”
So, where one Nichols brought an action of assumpsit against Rayn-
bred, declaring that in consideration, that Wichols promised to deliv-
er to Raynbred a cow, Raynbred promised to deliver him 50s. This
was adjudged a sufficient consideration, it being promise for prom-
Hob. 88.
ise.(h) (h) Ho
See also Cro.
Eliz. 543.703.
e e s º 4 Leon. 3.
[That one promise may be the consideration of another, is well yi. 134. 1
settled ; all stock contracts have the same basis, and they have re- Wils. 88. S.
peatedly been held to be valid. Briggs v. Tillotson, 8 Johns. Rep. P
236. 2nd. Ed.]
It is observed that mutual promises must be made at the same
time, otherwise they will be nuda pacta.() (i) Hob. 88,
*We have before(k) seen that a consideration of some sort or other # 16
is so absolutely necessary to the forming of a contract, that a nudum § ***
pactum, or agreement to pay any thing on one side, without any Rep. 196.
compensation on the other, is actually void in law, and a man cannot *
\lºgi; be compelled to perform it,
Therefore, if a mangratuitously, or in consideration of natural af.
fection, or of friendship, promises another to give him a sum of money
on a day to come, this is nudum pactum, and cannot be enforced at
law. For though a gratuitous undertaking, seriously made, is cer-
tainly sufficient to form the basis of a moral and honorary obligation,
and ought not to be receded from without some adequate reason ;
yet, in general, a person making such a promise does not thereby
intend to subject himself to legal responsibility, and the object of the
law is rather to give effect to contracts founded upon the mutual exi-
gencies of society, than to compel the execution of a voluntary en-
gagement of mere donation, -
14
Of the Consideration necessary [PART I.
(1) Dyer, 30.
a. Bro. tit.
Contract.
Shep. Touch.
224.
(m) 3 Term
Rep. 653.
(n) 1 Roll.
Abr. 9. 1. 40.
PI. Com. 309.
See also. 2
Jºd. Raym.
919. 5 Term.
Rep. 143,149.
# 17
(2) Mc. 782,
3. 1 Roll Abr.
28. l. 35.
(p) Cro. El.
206.
(q) 1 Saund.
210.
(r) 1 Roll.
Abr. 26. l. 10.
(s) Yelv. 25,
26.
(t) Mo. 685.
1 Leon. 240.
(v) 1 Roll.
Abr. 23.1.37.
(c) Cro. El.
67. 150.
So, if one buy goods for money, and no money be paid, nor earnest
given, nor day set for payment, nor the goods, or any part of them,
delivered; here no action lies for the money, or the goods sold, but
the owner may sell them to another if he will ; there being no con-
sideratièn, but a mere agreement to buy.()
So, where ºff. having proposed to sell goods(m) to B. gave him a
certain time at his request to determine whether he would buy them
or not ; B. within the time determined to buy them, and gave notice
thereof to fl. yet it was holden that ºff. was not liable to an action
for not delivering them, for B. not being bound by the original con-
tract, there was no consideration to bind fl.
So, where a carpenter had undertaken to build a house, and for the
not doing it, the party brought an action against the carpenter, but
because it did not appear that he was to have any thing for buil-
ding the house ; it was adjudged that the action would not lie.(n)
So, if the consideration be not beneficial to the party promising, nor
any trouble or prejudice to the party to whom the promise is made, it
is not good : as if a promise be made by an executor, or an heir at
*law who has no assets, in consideration of forbearance, to pay the
debt of the testator.(6)
So, if an heir promise in consideration of the forbearance of a suit
in Chancery, to which he was not liable.(p)
So, if a man promise payment to an assignee, in consideration that
he will accept him for his debtor.(q)
So, in consideration of relinquishing an assumpsit, which was
void;(r) or, in consideration of a discharge from a tortious arrest.(s)
So, if a woman after the death of her husband promise, in consid-
eration that the plaintiff, a creditor of her late husband, will permit
her to take out administration to her husband, she will pay him his
debt; this is not a valid consideration ; for the administration be-
longs to the wife.(t)
is pleasure.(v)
(º in consideration of a lease at will, for he may determine it at
But if there be any benefit, labour, or prejudice, however trifting, it
is deemed a sufficient consideration.
Thus, in the case of Sir Anthony Sturlyn v. Albany,(a) the plain-
tiff had made a lease to J. S. of land for life rendering rent ; J. S.
granted all his estate to the defendant; the rent was behind for sev-
eral years; the plaintiff demanded the rent of the defendant, who
promised, that if the plaintiff could show to him a deed that the rent
was due, he would pay to him the rent and arrearages ; the plaintiff
alleged that on such a day, &c. he showed the defendant the inden-
ture of lease by which the rent was due ; but notwithstanding this,
the defendant refused to pay the rent and arrearages due for four
years; and for the recovery thereof, the action was brought. A mo-
#
CHAP. II.] to support a Contract.
15
tion was made in arrest of judgment, that there was no consideration
to ground an assumpsit ; for the mere showing of the deed is no con-
sideration in law. But the court gave judgment for the plaintiff upon
this ground, that when a thing is to be done by the party to whom the
promise is made, be it never so small, this is a sufficient consideration
to support an action; and here the showing of the deed was to "avoid
a suit. The Reporter makes the following note: “In this case it was
“ alleged, that it had been adjudged, when one assumeth to another,
“ that if he can show him an obligation in which he was bound to
“ him that he would pay him, and he did show the obligation, &c. that
“ no action lieth upon this assumpsit, which was affirmed by the
“justices.”
# 19.
So, in Foster v. Scarlett, (y) the plaintiff declared, that where- (3) Cro-ºl.
as he and one Willington submitted themselves to the arbitrament of
.A. and B. of all matters, &c. that fl. and B. awarded the plaintiff
should release to Willington all debts which he owed him ; and that
Willington should assure to the plaintiff certain lands which he held
for life, the reversion to the plaintiff; and that the defendant and one
Putter, who pretended to have a lease of the lands, should seal a deed
to the plaintiff, that they should assure to the plaintiff their lease and
interest in the said lands : that after the arbitrament, in considera-
tion that the plaintiff did assume to Willington to stand to and per-
form the arbitrament, the defendant did assume, that he and Putter,
upon a request made to them, would convey the said land to the
plaintiff; the plaintiff averred that he had performed the award on
his part, and had requested the defendant that he and Putter would
convey the land, &c. which they had not done. It was moved in ar-
rest of judgment that there was no consideration to bind the defend-
ant, for he took no benefit thereby. But the court held clearly the
contrary, that it was a good consideration; for by reason of the prom-
ise the plaintiff was drawn to make the release, and it is not material
that the defendant took no benefit by the release.
So, the common law, in some cases, considers the mere entrusting a
thing with another, and his undertaking the care of it, a sufficient
consideration for his faithful discharge of the trust. And therefore,
though a person who gratuitously engages to do an act for another, is
not liable in law to an action for not doing it ; yet if goods are deliv-
ered to him, and he undertakes to carry them, or do something about
them without any reward, an action of assumpsit will lie on this
bailment, if there be any neglect on the part of the bailee by which the
goods are spoiled. '
*This was one of the points settled in the case of Coggs v. Ber-
nard, (z) which was an action of assumpsit, wherein the plaintiff de-
clared, that whereas the defendant undertook safely and securely to
# 19
(2) Lord Ray.
909. Et vide
post. Part III.
tit. Bailment
of Goods.
16
Of the Consideration necessary [PART I.
(a) Roll. Abr.
9. 1.50. Ld.
Raym. 919,
920. 5 Term
Rep. 149.
6 Mass. Rep.
58.
# 20
(b) Dy. 272.
3.
take up several hogsheads of brandy, thenin a certain cellarin D. and
safely and securely to lay them down again in a certain other cellar
in W. but that the said defendant and his servants so negligently and
improvidently put them down again into the said other cellar, that for
want of care in the defendant and his servants, one of the casks was
stayed, and a great quantity of brandy was lost. A motion was made
in arrest of judgment, because it was not alleged, in the declaration,
that the defendant was a common porter, nor averred that he had any
thing for his pains. But to the second objection “that there was no
consideration to ground the promise and that the undertaking was
“ nudum pactum,” Holt, Chief Justice, and the rest of the court, an-
swered, that the owner's trusting the defendant with the goods, was a
sufficient consideration to oblige him to a careful management. In-
deed, if the agreement had been executory, to carry these brandies
from one place to the other such a day, the defendant had not been
bound to carry them ; but this was a different case ; for assumpsit
did not only signify a uture agreement, but in such a case as this, it
signifies an actual entry upon the thing, and taking the trust upon
himself. And if a man will do that, and miscarries in the perform-
ance of his trust, an action will lie against him for that, though nobody
could have compelled him to do the thing.
And upon the same principle it was holden (a), that if a carpenter
undertakes to build or repair a house, and he does it unskilfully, an
action on the case will lie against him for his misfeazance, though no
consideration be alleged.
Of a past or executed Consideration.
If the consideration is wholly past and executed, it will not support
a subsequent promise, unless the consideration was executed either at
the express or implied request of the party promising. For it is not
reasonable that one man should do another "a kindness and then
charge him with a recompence : this would be obliging him whether
he would or not, and bringing him under an obligation without his
COInCurrence.
Thus, in the case of Hunt v. Bate, (b) the servant of a man was ar-
rested and imprisoned in the Compter in London for a trespass; and
he was let to mainprize by the manucaption of two citizens of London
(who were well acquainted with the master) in consideration that the
business of the master should not go undone. And afterwards, be-
fore judgment and condemnation, the master, upon the said friendly
consideration, promised and undertook to one of the mainpernors, to
CHAP. II.] to support a Contract.
17
save him harmless against the party plaintiff, from all damages and
costs, if any should be adjudged, as happened afterwards in reality;
after this the surety was compelled to pay the condemnation, a-
mounting to thirty-one pounds, &c. And thereupon he brought an
action on the case, and the undertaking was traversed by the master,
and found in London at nisi privas against him. But it was after-
wards moved in arrest of judgment that the action did not lie. And
by the opinion of the court, “the action does not lie in this matter, be-
“cause there is no consideration, wherefore the defendant should be
“ charged for the debt of his servant, unless the master had first pro-
“mised to discharge the plaintiff before the enlargement, and main-
“ prize made of his servant, for the master did never make request to
“ the plaintiff for his servant to do so much, but he did it of his own
“head.” Wherefore judgment was given for the defendant.
But, in the same report, it is added, that in another like action
brought upon a promise of twenty pounds made to the plaintiff by the
defendant, in consideration that the plaintiff, at the special instance
of the said defendant, had taken to wife the cousin of the defendant;
it was holden that this was a good consideration, although the mar-
riage was executed and past before the undertaking and promise,
because the marriage ensued the request of the defendant.
So, in an action on the case,(c) in consideration that the plaintiff,
Eliz. Harris's
at the request of the defendant, had taken such a one apprentice, the 272, a. m. 31.
defendant undertook that he should serve truly, &c. *and adjudged
that this is a good consideration, although it were passed, because it
was at the request of the defendant.
# 21
So, in consideration of one hundred and ten pounds given to a (d) East, 38
stranger,(d) at the instance of the defendant, the defendant under-
took ; and adjudged a good consideration, although it was passed, be-
cause it was at the instance of the defendant.
The distinction taken in these cases was agreed to by all the Justi-
sumpsit, wherein the plaintiff declared, that he, at the request of the
defendant, was surety and bail for J. S. who was arrested into the
King’s Bench upon an action of 30l. and that afterwards for the de-
fault of J. S. he was constrained to pay the 30l.; after which the de-
fendant, meeting with the plaintiff, promised him, for the same consid-
eration, that he would repay that 30l., but which he afterwards refus-
ed; and for the recovery thereof this action was brought. It was ob-
jected that this consideration could not maintain the action, because
the consideration and promise did not concur and go together. Ander-
son, Ch. J. said: “This action will not lie; for it is but a bare agree-
Vol. I. [3]
Eliz. Foster's
272, a. Jºls 31.
g ſº g e) 2. Leon,
ces in Sidenham and Worlington’s case,(e) which was an action of as- 9.
18
Of the Consideration necessary [PART I.
% 22
“ment, and nudum pactum, because the contract was determined,
“ and not in esse at the time of the promise; but he said, it is other-
“wise upon a consideration of marriage, for marriage is always a
“present consideration.” Windham agreed with flnderson, and he
put the case in 3. H. VII. If one selleth a horse unto another, and at
another day he will warrant him to be sound of limb and member, it
is a void warranty ; for that such warranty ought to have been made
or given at such time as the horse was sold ; Periam, Justice, con-
ceived that the action did well lie, and he said, “This case is not like
“unto the cases which have been put on the other side, for there is a
“great difference betwixt contracts and this case ; for in contracts
“upon sale, the consideration, the promise, and the sale ought to
“ meet together ; for a contract is derived from con and trahere,
“which is a drawing together, so that in contracts every thing which
“is requisite ought to concur and meet together, viz. the considera-
“tion on the one side, and the sale or the promise on the other side.
“But to maintain an action upon an assumpsit the same is not req-
“uisite ; for it is sufficient if there be a moving *cause or considera-
“tion precedent, for which cause or consideration the promise was
“made ; and such is the common practice at this day; for in an ac-
“tion on the case upon a promise, the declaration is laid, that the de-
“fendant for and in consideration of 20l. to him paid, afterwards, that
“is to say, at a day after, super se assumpsit, and that is good, and
“yet there the consideration is laid to be executed. And he said
“ that the case of Hunt v. Bate, would prove the present case: for
“in that case it was adjudged that the action would not lie, because
“ the consideration was precedent to the promise, and because it was
“executed and determined long before. But it was holden by all
“ the Justices, that if Hunt had requested Bate to have been surety
“ or bail, and afterwards Hunt had made the promise upon that con-
“sideration, the same had been good; for that the consideration did
“precede, and was at the instance and request of the defendant.”—
Rhodes, Justice, agreed with Periam, and he said, “That if one serve
“me for a year, and hath nothing for his service, and afterwards,
“ at the end of the year, I promise him 20l. for his good and faithful
“ service ended, he may have and maintain an action upon the prom-
“ise: for it is made upon a good consideration : but if a servant hath
“wages given him, and his master ea abundanti, doth promise him
“ 10l. after his service ended, he shall not maintain an action for the
“10l. because there is not any new cause or consideration preceding
“ the promise;” which difference was agreed by all the Justices:
and afterwards, upon good and long advice and consideration had of
the principal case, judgment was given for the plaintiff, and they much
relied upon the case of Hunt and Bate.
CHAP. II.] to support a Contract. 19
So, in the case of Tounsend v. Hunt, (f) where the plaintiff, at the (f) Cro.
request of the defendant, had made a general release to him and his Car. 409.
wife, (she being executrix of F. T. under whose will the plaintiff
claimed a legacy of 60l., 531. of which he had been paid, and had af.
terwards executed the release in question,) the defendant in consid-
eration thereof promised the plaintiff, that if his wife did not pay the
seven pounds, residue of the legacy in her life-time, he would pay it
after his wife’s death : It was holden, that though the promise was
made after the release, yet, forasmuch as the release was made at the
defendant's request, and the defendant had the benefit of it, the pro-
mise upon this consideration was good enough,
*So also, in the case of Bosden v. Sir John Thinn,(g) where the # 23
plaintiff declared, that whereas the defendant requested the plaintiff to cro. J.
to give his credit for two tuns of wine for one Roberts, to one Fludd, ig. Yelv. 40.
amounting to 50l. he thereupon gave his bond of 100l. for the pay-
ment of the 50l. and for the non-payment thereof was sued, and en-
forced to pay 70l. and showing this to the defendant, he, in consider-
ation of the premises assumed to the plaintiff to pay the 70l. &c. It
was moved, that this promise was not sufficient, it being upon a con-
sideration past. But the court held, that the consideration and pro-
mise were valid ; because Roberts, upon the plaintiff’s undertaking
at the defendant’s request, had credit given him by Fludd ; and the
plaintiff was damnified by reason thereof, which in conscience the
defendant ought to satisfy.
So, where a party derives benefit from a past consideration, the
law, in some instances, will raise an implied request ; as where a
man pays a sum of money, or buys any goods for me without any
knowledge or request, and afterwards I agree to the payment, or re-
ceive the goods, this is equivalent to a previous request.(h)
(h) See 1.
º º sº * * * º Saund. 264.
So, in consideration that the plaintiff had buried the defendant’s n. 1. Str. 933.
son or wife, during the absence or separation of the father or husband; #.
this is good without any previous request.(i) tº ś.
1671.
[A promise in writing to pay, formed on a past consideration is $ºn.
good, if the past services are alleged to have been done on request; ſº a n, b.
and a request may be implied from the beneficial nature of the ser-i #. N #. Bl
vices, and the circumstances of the case. Hicks v. Burhanset, 10 90.
Johns. Rep. 243, 188, 378.]
20
Of the Consideration necessary EPART I.
Of a Consideration executed in Part.
If a consideration be executed in part only, and is continuing, it
will support a subsequent promise.
(k) Cro. El.
94. 1 Leon.
102. S. C.
% 24
(l) Jones v.
Clark, 2
Bulst. 73.
Roll, Abr. 12,
l. 5.
(m) Cro El.
138.
Thus, in the case of Pearle v. Unger.() which was an action of as-
sumpsit, wherein the plaintiff declared, that he was possessed of cer-
tain lands for years, the defendant, in consideration he had occupied
the land, and had paid the rent to the defendant, viz. 30l. per annum,
all the time he had occupied it, assumed to save *him harmless for
the occupation of the land always during the term, as well for the
years past as to come ; and alleged that before the time of the prom-
ise, viz. such a day, &c. his beasts were taken damage feasant, &c.
and that the defendant had not saved him harmless of it. It was
moved in arrest of judgment, that there was no consideration to main-
tain the action; for the consideration and cause of the promise was
a thing done before, viz. the occupation and payment of the rent ;
which being past, are no considerations for a thing future to be done.
But it was adjudged for the plaintiff; for the consideration, that he
was in possession, and had paid his rent, and was to pay his rent, is
sufficient to cause the other to defend his possession for the time past
and to come. -
So, where one being possessed of a shop() agreed to demise it to
another, paying to him 408. by the year, and 10s. for the last quar-
ter; and for the perfecting the agreement each gave the other 1s.
and afterwards, in consideration of the premises, the lessee promised
to give the lessor 30l. and assumed to pay it; in consideration where-
of, and in performance of the contract, the lessor made a lease to the
lessee accordingly; and the action was brought for the 30l. It was
objected that there was no good consideration expressed to raise the
promise for the 30l. the same being grounded upon a consideration
that was past, perfect, and executed, and so no good consideration.—
Sed per Curiam. The lease here is made after the promise ; the agree-
ment is in performance of all, not of part ; it was on the lessor’s part
to make the lease to the defendant, and on his part to pay the rent of
40s. and the 30l. in consideration of his quietly enjoying the same,
which is a valid promise, founded upon a good and sufficient consider-
ation. -
So, in the case of Warcop v. Morse,(m) the plaintiff declared, that
in consideration he had bought of the defendant three parcels of land
on such a day, the defendant afterwards on another day, promised to:
CHAP. II.] to sapport a €ontrast. 2i.
make him a sufficient assurance. It was adjudged that the consider-
ation was not absolutely past, for the assurance was the substance of
the sale.
*So a promise on a consideration eacecuted is good, if there were a * 25
duty before; as where the plaintiff declared that on such a day, the de-
fendant was indebted to him in a certain sum, for divers goods sold
to him; and for money lent; and also for money due upon an ac-
count stated ; and being so indebted, the defendant in consideration
thereof afterwards, on such a day promised to pay, &c. It was hol-
den, that this is a good consideration to raise an assumpsit ; for the
continuance of the debt is a consideration continuing and sufficient to
support an action.(n) - (n) Hodge v.
Vavisor, 1
Roll. Rep.
•=sººm 413. Roll.
Abr. 12. l. 30.
tº º . . . . . . . ad. 45. 13. 1.
Of a Promise in Consideration of a precedent Debt or duty void- 3. Johnson.
able by Statute, &c. sº y. Astell, 1
- y , & * Lev. 19&Mo.
* - tº 8 º' tº ºr " 854.
Where a man is under a moral obligation, which no court of law or
equity can enforce, and promises the honesty and rectitude of the thing
is a consideration: As, if a man promise to pay a just debt, the recovery
of which is barred by the statute of limitations :(0) or, if a man, after (o) Ld. Raym.
º -:4a. . 389.
he comes of age (p) promises to pay a meritorious debt contracted (p) Stra, 690.
during his minority, but not for necessaries; or if a bankrupt, in af- iſ ferm Rep.
fluent circumstances after his certificate, promises to pay the whole of *
his debts;(q) or if a man promise to perform a secret trust, or a trust
* * * * • . . .” - - - (q) Cowp.
void for want of writing by the statute of frauds.(r) is 544. Doug.
- - º 101. n. 2.
In such, and many other instances, though the promise gives a #º.
compulsory remedy where there was none before either in law or eq- Abr. 52.
uity; yet as the promise is only to do what an honest man ought to gºve.
do, the ties of conscience upon an upright man are a sufficient con-
sideration.(8) (s) Per Lord
JMansfield,
- . - . C . 395.
[See an elaborate note by the learned reporters of the cases in §.'..."
3 Bos. & Pul. 249, how far a moral obligation is a sufficient consider- Bl. Com.445.
ation.—From the authorities there cited, it should seem, that an ex-
press promise can only revive a precedent good consideration, which
could have been enforced at law through the medium of an implied
promise, had it not been suspended by some positive rule of law, but
can give no original right of action, if the obligation on which it is
founded never could have been enforced at law though not barred by
any legal maxim or Statute provision.
So, an obligation to pay in one right, even though it be a legal obli-
gation, and coupled with an express promise, will not support an as-
$ºrrº . . .
*::::::::
22
Of the Consideration necessary [PART I.
* 26
(t) Cockshott
v. Bennett, 2
Term Rep.
'763.
(w) Cro. El.
149. 1 Sid.
38. Contra. 4.
Leon. 3.
8 Mass. Rep.
46.
(v) Cro. El.
847. 1 Roll.
Abr. 30. l. 15.
(w) Yelv. 56.
(z) 1 Sid. 38.
T. Raym. 32.
(y) Com. Dig.
tit. Action
upon assump-
sit, B. 13.
(2) Cro. El,
848.
(a) Cro. El.
129. See also
1 Sid. 38.4
Leon. 3. Cro.
Jac. 103.
sumpsit to pay in another right. Mitchinson v. Hewson, 7. T. R.
848–Brue v. Thorn, All. 72. Wide 1. Campb.276. n.] -
A subsequent promise, however will revive that which is voidable
only; therefore where the consideration is void in its creation, no
promise can set it up again. As, if all the creditors of an insolvent
consent to accept a composition for their demands on an *assignment
of his effects by a deed of trust, to which they are all parties, and one
of them before he executes, obtain from the insolvent a promissory
note for the residue of his demand, as the condition of his executing
the deed, the note is void in law, as a fraud on the rest of the credi-
tors; and a subsequent promise to pay it is a promise without consi-
deration, and will not maintain an action.() - -
-º-º-
Of a consideration void in part.
If a contract or agreement be made upon two considerations, and
one of them cannot be performed; this will not avoid the contract;
and in an action thereon, the damages shall be intended to be wholly
given for the good consideration.(u)
As in consideration of the assignment of a title to dower, and the
not suing an attachment out of chancery upon a decree; though a ti-
tle to dower cannot be assigned, but released to the terre-tenant.(v)
So, in consideration of a permission to remove goods, and relinquish
a foreign attachment, though it cannot be relinquished.(w)
So, in consideration of two things ; and one of them is insufficient;
as, in consideration of forbearance of a debt due from the defendant
and his son; though, as to the debt of the son, it is of no value.(a)
And the void consideration need not be proved.(y) But if one of
the considerations is found false by the jury, the action fails.(2)
Or if one of the considerations is unlawful, that vitiates the whole,
and the plaintiff shall recover for nothing; as, in consideration of
2s, and the escape of R. ; for the permitting the escape is unlawful.(a)
[Thus a promissory note, given in consideration of the conveyance
of a patent right which has been fraudulently obtained is void. Bliss
& al. v. Wegus, 8 Mass. Rep. 46. -
And, it seems, the note would be void, 'although the conveyance be
by deed and contain covenants of warranty, and although the prom-
isee have furnished materials and labour and given directions in the
art described in the letters patent; for as nothing could pass by the
deed, there would be nothing beneficial for the covenants to operate
upon; and as to the materials, labour and instructions, they would be
of no value or use-Ibid.] :
CHAP. II.] to support a Contract. 23
*Of a consideration arising from a third Person. # 27
A promise, in some cases, is valid, though the consideration on
which it is made arise in part from another; as if a man promise a
pigg of lead to 4. and his executor give lead for that purpose to B.
who undertakes to deliver it to A.; an action lies by A. against B.
upon his undertaking.(b) - - §. i.
40.31. 1. 5.
So, in the case of Dutton and wife v. Poole,(c) the plaintiff declared, (c) 2 Lev.
that his wife's father being seised of certain lands, now descended ; º:
to the defendant, and being about to cut down 1,000l. worth of tim- Raym. 302.
ber off from the said lands to raise a portion for his daughter, the de-8.9.
fendant, being his heir promised the father, in consideration that he
would forbear to fell the timber, that he would pay the daughter
1,000l. After verdict for the plaintiff, upon non assumpsit, it was
moved in arrest of judgment, that the action ought not to have bgen ...
brought by the daughter, but by the father, or if the father were dead,
by his executors, for the promise was made to the father, and the
daughter was neither privy nor interested in the consideration,
nothing being due to her : but Scroggs, Ch. J. said, that there was
such apparent consideration of affection from the father to his chil-
dren, for whom nature obliged him to provide, that the considera-
tion and promise to the father might well extend to the children.
Judgment for the plaintiff: for the son had the benefit by having the
wood, and the daughter had lost her portion by these means.
287. 327.
But, in general, it is necessary that the consideration on which
the promise is founded should move from the party in whose favour
the promise is made. -
Thus, in the case of Bournev, Mason,(d) where the plaintiff declar- (d) 1 Went, 6.
ed, that ºff. being indebted to the plaintiff and defendant in two sev-
eral sums of money, and B. being indebted to 4. in another sum, and
there being a communication between the parties, the defendant,
in consideration that 4, would permit the defendant to sue B. in
4.’s name for the recovery of the sum due from B. to A. promised
that he, the defendant, would pay 4.'s debt to the plaintiff, and al-
leged that 4. permitted the "defendant to sue accordingly, and that # 2s
he recovered ; after verdict for the plaintiff, upon non assumpsit,
it was moved in arrest of judgment, that the plaintiff could not main-
tain this action ; and of this opinion were the court, observing, that
the plaintiff was a mere stranger to the consideration, having done
nothing of trouble to himself, or of benefit to the defendant.
10 Mass. Rep.
!
s
24
Of the Consideration necessary [PART I.
(e) Stra. 592.
See also 1
Wim. Abr.
333 to 337.
1 Bos. and
Pul. 101. m. c.
3 Bos, and
Pul. 149. m. a.
(f) 2 Lev.
161.
(g) 3 Term
Rep. 22.
# 29
So, in the case of Crow v. Rogers,(e) where the plaintiff declared,
that J. S. was indebted to the plaintiff, and it was agreed between
J. S. and the defendant, that the defendant should pay to the plain-
tiff the debt due to him from J. S. and that J. S. should make the
defendant a title to a house, in consideration whereof the defend-
ant promised to pay to the plaintiff the debt due to him from J.
S., and then averred that J. S. was always ready to perform his
part of the agreement: on demurrer, judgment was given for the
defendant, because the plaintiff was a stranger to the considera-
tion.
[If neither the consideration moves from the plaintiff, nor the pro-
mise made to him, or for his benefit, an action cannot be maintained.
Shear v. Overseers of Hillsdale, 13 Johns. Rep. 496.]
Of a Consideration which the Party cannot perform.
The consideration must be such as the party to whom a promise is
made, has a power by law to perform or cause to be performed.
Thus, in the case of Harvey v. Gibbons,(f) the plaintiff declared,
that he being bailiff to J. S., the defendant in consideration that the
plaintiff would discharge the defendant of a debt due to J. S., pro-
mised, &c. After verdict and judgment for the plaintiff in the court
below, it was reversed in B. R. because the plaintiff could not dis-
charge a debt due to his master.
The principle established by the preceding case, was recognised
by Lord Kenyon, Ch. J. in the case of Nerot v. Wallace, (g) where the
consideration was, that the plaintiffs, who were assignees under a
commission of bankrupt against J. S. would forbear to proceed to have
the examination of J. S. taken before the commissioners concerning
certain sums, with which J. S. was charged, and that the commission-
ers would forbear, and desist accordingly, Lord Kenyon, said,
“The ground on which I found my judgment is this; *that every
•' person, who in consideration of some advantage, either to himself
“ or another, promises a benefit, must have the power of conferring
“ that benefit up to the extent to which that benefit professes to go ;
“ and that not only in fact but law.” Now the promise made by
the assignees in this case, which was the consideration of the defen-
dant’s promise, was not in their power to perform; because the com-
missioners had nevertheless a right to examine the bankrupt. And
no collusion of the assignees could deprive the creditors of the right
of examination, which the commissioners would procure them. The
CHAP. II.] to support a Contract.
$25
assignees stipulated, not only for their own acts, but also that the
commissioners should forbear to examine the bankrupt : but clearly
they had no right to tie up the hands of the commissioners by any such
agreement. And if any proposal of that sort had been made to the
commissioners, they, as acting in a public duty, would have been
guilty of a breach of that duty in acceding to it.
[It must not be inferred from the language of Lord Kenyon in this
case, that a party may not stipulate for the act, or forbearance of a
stranger, and that such stipulation will not in any case form a good
and sufficient consideration; if the act be such, as the stranger might
do or abstain from doing legally, or without any breach of duty, an ob-
jection cannot be raised against such a consideration.
A promise made by a constable to delay the sale of property longer
than the law allows is without consideration and void. 2 John, 193,
3 Cranch. 242. 2.John. 386. 4 Dall.269.]
Well, M. [4]
CHAPTER III.
OF ILLEGAL CONTRACTS,
\
ALL contracts or agreements which have for their object
any thing which is repugnant to justice, or against the general policy
of the common law, or contrary to the provisions of any statute, are
void: For ea: terpi contractu actio non oritur, is a rule bothin law and
(d) See equity.(a). And whenever a contract or agreement is entered into
3. ºt with a view to contravene any of these general principles, there is no
v. b. 1. c. 4.s. form of words, however artfully introduced or omitted, which can
4. n. y. prevent courts of law and equity from investigating the truth of the
transaction.
(b) Collins v. Thus, in an action upon a bond(b) given for compounding a prosecu-
#º 2 tion for perjury, it was argued, in support of the action, that no aver-
3. : al- ment could be admitted of the bond having been given for such a con-
so 1 P. Wms, sideration, because it did not appear in the condition. But to this it
***, was answered by Lord Ch. J. Wilmot, “ that the manner of the trans-
11 M. T. R. tº tº
368.43.” “action was to gild over and conceal the truth; and whenever courts
“ of law see such attempts made to conceal such wicked deeds, they
“will brush away the cobweb varnish, and show the transactions in
“ their true light. This is an agreement to stifle a prosecution for
“wilful and corrupt perjury, a crime most detrimental to the com-
“ monwealth ; for it is the duty of every man to prosecute, appear
“ against, and bring offenders of this sort to justice. This is a con-
“tract to tempt a man to transgress the law, to do that which is inju-
“rious to the community: it is void by the common law ; and the
* “reason why the common law says such contracts are void, is for the
# 31 “ public good. Pou shall not stipulate for iniquity. All “writers up-
“on our law agree in this, no polluted hand shall touch the pure foun-
“tains of justice.”
But a contract or agreement must be unlawful at the time of mak-
(c) Per Car. ing it, otherwise it cannot be set aside; for it is said,(c) the law knows
*** **, of no contract but what was good or bad at the time of the contract
See also Bul. tº ë sº
N. P. 146. made; it cannot be one or other, according to a subsequent contin-
gency.
CHAP. III.] Of Illegal Contracts, &c. 27
In this chapter it will only be necessary to take a general view first,
of contracts and agreements which are void by the common law ; and
secondly, of those which are prohibited by statute.
In considering those which come under the first class, it is hardly
necessary to state that every contract or agreement which has for its
object any thing forbidden by the law of God : as to commit murder,
theft, perjury, or the like, is void by the common law. Therefore if a
man is under an obligation to pay to another 201, if he will kill or rob
such a person ; this is a void obligation, and creates no right.(d) (d) §: Abp.
*. tit. iga-
• * * & . . ." * tion, 13.
The common law also prohibits every thing which is unjust, or
contra bonos mores. Therefore a contract or agreement which is
made in contravention of these general principles is void : for in-
stance, if ºff. promise in consideration of 20s. paid to him by B. he
will pay B. 408. if he does not beat J. S. out of such a close : this is
-- ºr *
***
illegal and void.(e) (e) 2 Lev.
So if... request B. to beat another, and promise to save him hagn- 174.
less; this is a void consideration, for the act is unlawful.(f) -º (f) Hutt, 56
But, it is said,(g) if I request another to enter into B.’s land, and
tº tº tº * g) Per Hor
in my name to drive out the beasts, and impound them, and promise $ºt, in the
gº tº º g tº - case of Hut-
to save him harmless, this is a good assumpsit, though the act is tor ton & Winch,
tious. Win. 49,
[If one requests another to do an act which he knows will be a
Trespass, and promises to indemnify him, the promise is void ; but
if the person who does the act, does not know at the time, that he is
committing a trespass, the promise to indemnify is valid, Covéâtry
v. Barton, 17 Johns, Rep. 142.]
Future Cohabitation, &c.] Contracts entered into with a view to
future cohabitation and prostitution are illegal and void, as being
against “public morality.(h) But an engagement merely by way of # 32
reparation for past seduction and cohabitation is valid; for this is no } Walter 4,
more than what a man ought, in honor and conscience, to do.() #:
So, a contract for the use and occupation of lodgings which are let : *: 2 5
expressly for the purposes of prostitution, is void.(k) V. }º 293,
But an agreement to pay for the washing and getting up of expen- (k) 1 Ep.,
sive articles of dress for a prostitute is valid, though it be known to #*: ;
the party by whom the work is done, that the dresses are to enable 60. Et vide
her to appear at public places, &c.() * ; §
Occupation.
—t----------- r—w-rx r—x- * – – º –—r—ze -r- ag- - (1) 1 Bos. and
Pul. 340.
(i) Armandale v. Harris, 2 P- Wms. 432, Cray v. Rooke, Forrest. 153.
Turner v. Waughan, 2 Wils. 339.
2
§
Of Illegal Contracts, [PART I.
[The same doctrine was laid down by Lord Ellenborough in Bowry
v. Bennet 1 Camp. N. P. C. 848. where an action was brought against
a prostitute to recover the value of some clothes which had been fur-
nished by the plaintiff. The C.J. said, that the mere circumstance of
the defendant being a prostitute within the knowledge of the plain-
tiff, would not render the contract illegal. In order to defeat the ac-
tion, it must be shewn that the plaintiff expected to be paid out of the
profits of the defendant’s prostitution, and that he had sold her the
clothes in order to carry it on.]
A contract for the sale of prints of an immoral and libellous tenden.
$º. cy has also been holden to be illegal and void.(m)
just infores . So, all contracts and agreements which have for their object any
#". * thing contrary to principles of sound policy are void by the common
wi. posi, º law.(n)
Part III, tit.
Goods Sold, Restraint of Trade] Under this description may be ranked cons
C.
(n) Cowp.39, tracts which bind any to a total restraint of trade; for all such obli-
gations are contrary to principles of national policy; one great object
of which is to encourage and promote trade. Therefore it has been hol-
den, that a promise or obligation which binds any to a total restraint of
(a) Vide trade, whether for a limited time, or generally, is unlawful and void.(0)
#. , But, ifa manfoilagood consideration restrains himself from the exer.
P. *...*1. cise of his trade in a particular place, this is lawful: for the policy of
# º & art the nation is not concerned in what place a man exercises his calling.
tº ii. And there may happen instances wherein such a contract may be useful
straint of and beneficial; as to prevent a town from being overstocked with any
º: Rep. particular trade: or, in the case of an old man, who, perceiving himself
522.8 Ibid, under such circumstances of body or mind, as that he is likely to be a
£23. loser by continuing his trade, will find it better to part with it for a con-
# 33 sideration; that, by selling his *custom, he may procure himself a live-
(p) id. bid, linood which he might probably have lost by trading longer.(p)
Restraint of Marriage.] Upon the same principle of public policy,
the common law makes void all contracts and agreements which to .
tally restrain a person from marrying; or from marrying any body
except a particular person, without imposing an obligation to marry
that particular person : Thus, where 4. promised B. that he would
not marry with any person besides herself; if he did, he agreed to pay
gº. her 1,000l. In an action(ſ) of covenant upon this contract, the Court
2225. See of King’s Beneh held, that this was an agreement in restraint of mar-
also 2 Vern.
i..', riage; for it was not a covenant to marry the plaintiff; but not to
Eq. Ca. Abr. marry any one else: and yet she was under no obligation to marry
#. º: him; so that it restrained him from marrying at all, in case she had
533. 540. To chosen not to permit him to marry her.
Wes. jun. 429,
CHAP. III.] void by the common Law. 29
Marriage brocage Contracts.] So also, all marriage brocage con-
tracts are void.(r) These contracts are so called from the circum- º:
stances of their promising a reward to a person if by reason of the i. gº
influence which he may possess over one of the parties to the match, Rep. 47.
which is sought to be accomplished, he can procure a marriage be- Hall v. Pot-
* tº ſº tº ter, 3 Lev.
tween them. They are also considered to be of a very pernicious Aii. Show. P.
º * tº ſº C. '76. 4 B tº
tendency, by being the occasion of many unhappy marriages. P. C. 144. TO
8vo. ed.
Simoniacal Contracts.] So, all simoniacal contracts are void : 7 * Rep.
Thus, where the consideration of the contract was, that the plaintiff “”
would procure the defendant to be presented and instituted to a cha-
pel, which was a donative in the king's gift ; it was adjudged illegal,
on the ground of its being simony, and thereforeincapable of support-
ing an assumpsit.(s)
*Maintenance of Suits.] So, all contracts and agreements for the # 34
maintenance of suits, are illegal and void.(t) Maintenance is an offi- (t) see 1
cious intermeddling in a suit that no way belongs to one, by maintain- #. § b
ing or assisting either party with money or otherwise, to prosecute “” 55, b.
or defend it. It is an offence against public justice, as it keeps alive
strife and contention, and perverts the remedial process of the law
into an engine of oppression. A man may, however, maintain the suit
of his near kinsman, servant, or a poor neighbour, out of charity and
compassion, with impunity. And any agreement made in respect of
such maintenance is valid.(u) (w) See 1
- Hawk. P. C.
Contracts made to prevent the due course of justice, &c.] So, every “” 83.
agreement or promise which is made with a view to prevent the due
course of justice, is illegal : As, if 4. promise B. money in considera-
tion that he will not give evidence in a cause ; such promise cannot
be enforced ; it being unlawful and iniquitous for any man to suppress
testimony in any cause.() (v) 1 Lºon.
- g 180.
So, a promise made by the friend of a bankrupt, when he was on
his last examination, that in consideration that the assignees and com-
missioners would forbear to examine him touching certain sums which
he was charged with having received, and not accounted for, he would
pay such sums as the bankrupt had received and not accounted for,
is void, as being against the policy of the bankrupt laws. For the
intention of the legislature was, that the creditors should have the
full examination of the bankrupt, as to the state of his effects and the
disposition of them ; whereas the promise in this case would be to
(s) Cro. Car. 337. 353. 361. 1 Roll. Abr. 18. I. 5. See also the case ſ
Fylche v. Bishop of London, Cunningham's Law of Simony, 52. 4 Term”
30 of Illegal Contracts, [PARt. I.
induce the assignees and commissioners to forbear doing their du-
w) Merot v. ty.(w)
allace, 3
Term Rep. t
17. But a covenant by a friend of a bankrupt to pay all his creditors
their full debts, in consideration that they will not proceed any fur-
(c) Kaye v. ther under the commission is lawful.(a)
Bolton, 6
jº Rep. Contracts with Sheriffs, &c.] So, if a sheriff for 101 promise that
134. º * * e ºn & *
a prisoner shall escape, this promise is unlawful and void.(y)
(y) 10 Co.
102. Cro. El. -
199. *So, where ºff, is in execution at the suit of B.; and C., in conside-
$ 85 ration that the gaoler will permit ºff. to go at large, assumes and pro-
mises to him that 4. shall pay the debt at a certain day, and that he the
said C. will save the gaoler harmless ; this promise is void, because
(2) yely... the consideration is against law.(2)
197. 2 Bulst.
213. a ſº wº º -
5 Mass. Rep. So also, a promise to a bailiff to give him a sum of money to ac-
; ; cept bail, is void; it being the duty of the sheriff to take good and
#..". sufficient bail when tendered to him.(e)
a) Smith v. -
jº '1" So, if 4 obtains a judgment against B, and thereupon takes out
B1. Rep. 204. an elegit, and delivers it to the under-sheriff, who by virtue thereof
8, C. seizes certain goods of B. and afterwards the under-sheriff, in con-
sideration that A. will take out a new elegit, and deliverit to him, pro-
mises to cause and procure the said goods to be found by inquisi-
tion, and to deliver the same to such person as fl. shall appoint, &c.
this promise is against law, being to do a thing against the duty of
his place, by which he is bound to return an indifferent and equal
jury between the parties; and though part of the promise was to do a
lawful act, yet that depending upon the other part, which was ille-
(b) T. Jones, gal, makes the whole void.(b)
24, Cart. 223.
[An express promise to indemnify a sheriff against the conse-
quences of his own breach of duty cannot be valid, neither will the
law imply a promise or an illegal consideration. Officers cannot pro-
tect themselves against the damages arising from a breach of Official
duty by any collateral stipulation for indemnity. Denny v. Lin-
coln, administrator, 5 Mass. Rep. 385.
A sheriff cannot take a note instead of bail. Where a deputy
sheriff, instead of taking a bail bond from 4, whom he had arrested,
took a note made by B, which 4, indorsed in blank to the deputy
sheriff for his security, on which an action is afterwards brought
against the maker of the note, the transfer of the note was held to
be illegal and void, being contrary to the provision of a very benefi-
43
Char. III.] void by the Common Law. 31
cº----->
cial statute and if allowed would lead to the greatest abuse and
oppression. Strong v. Tompkins, 8 Johns. Rep. 78 2nd ed.]
But a contract to indemnify a sheriff in the doing of a lawful act
is good. - 's -
Thus, where a plaintiff, in an action, pointed out particular goods,
and desired the sheriff to take them under a fieri facias; and in con-
sideration that the sheriff would take them, the plaintiff promised to
indemnify him; this was held a valid promise; for the plaintiff having
pointed out the goods, and required the sheriff to take them in execu-
tion, it was reasonable that he should save the sheriff harmless.(c) (c) Cro. Jac.
- - 652. See also
So, where fl. was arrested, and C., in consideration that the bailiff #" Raym.
would suffer 4. to continue in the house of C. till the next morning, ""
promised that he would then deliver 4. in safe custody to the “bailiff; # 36
this was held to be a lawful consideration; for it shall not be intend-
ed that the bailiff was ever absent from B., so that it could be no es-
cape.(d) (d)1 Sid. 132.
I Keb. 483.
[A promise to indemnify a sheriff for a voluntary escape, already 1 Lev. n.
made, is valid. Doty v. Wilson, 14 Johns. Rep. 378.] -
, Trading with the enemy..] All trading with the subjects of an
enemy’s country, without the king’s license, is illegal. Therefore, a
, T * º 2. * 2 Q & (e) 8 Term
policy of insurance on enemy’s property is void.(e) Rep. 548. 6
Term Rep.
It is also illegal for a subject in time of war, without the king's li- *. *
cence, to bring, even in a neutral ship, goods from an enemy's port, But see 'Salk.
which were purchased by his agent resident in the enemy's country, ...”.”
after the commencement of hostilities; although it may not appear Åbº. it.
- - Alien. D. as
that they were purchased of an enemy.(f) to the disting.
tion between
But a neutral subject residing in the enemy's country, and carry- alien friend
and alien en-
ing on trade there in partnership with an alien enemy, may insure his . .
interestin the ioint property.( (f) Potts v.
l es in the joint property.(g) Bell, 8 Term
º Rep. 548.
Wagers.] All wagers which have a tendency to incite a breach of º 6 *
# ep. 413.
the peace, or which are contrary to principles of sound policy or mº: (i) ; Terra
rality, are illegal, and void by the common law; as, ifa wager belaid Rep. 405.
on the event of a battle;(h) or upon the sex of a person;(i) or upon %. Cowp.
the event of war or peace;(k) or of an election of members to serve in (; 1 Term
parliament;(l) or respecting the produce of any branch of the reve- #" #. b.
nue;(m) these are unlawful and void. * Rep. 56.
*. (m) 2 Term
Rep. 610. 2
Bos. and Pul:
136.
*
32 Of Illegal Contracts, [PART I.
! So, if a wager is made merely as a colour to disguise an illegal
. transaction, as simony, bribery, usury or the like, they are equally
(n) Cowp.39, void.(n)
But, in general, a wager may be considered as legal if the subject
# 37. of it has no immediate tendency to a breach of the peace, or *to affect
the feelings or interest of a third person; and is not contrary to the
Q.”. * principles of morality or sound policy.(0)
subject, post,
§: III. it. * [A wager between electors, on the event of an election, is illegal.
Nº. m. 11 Johns. Rep. 23. 12 Johns. Rep. 376. r
and received The doctrine that an action for a wager is maintainable at the com-
wº mon law, is sanctioned by the New York courts. 4 Johns. Rep. 426.
tº See the cases in Church’s Digest, page 1020. In Mass. it seems not
to have been adopted. 2 Mass. Rep. 1.]
Fraudulent Contracts.] Contracts which are infected with fraud
are void both in law and in equity: for the basis of all dealings ought
( to be good faith.
(º: * Therefore, where two sutlers(p) to several regiments of militia
Baldwin, (who as such were entitled to certain forage of oats and hay for divers
Pong: 490 horses daily out of the king's magazine belonging to the camp) enter-
ed into an agreement with the person who furnished and supplied the
magazine, that the sutlers would abstain from taking the forage, or
such part thereof as they should think fit, and would leave the same
to be the property of the persons supplying them, and that he should
pay and allow them 9%d. by the ration, for every ration to which they
should be entitled, and which they should so leave at the magazine:
this was held to be a corrupt agreement between the parties, as having
for its object the cheating of government, by taking a gomposition for
the forage of the whole number of horses allowed, whether they were
kept or not, which was a clear fraud upon the public.
So, where goods are put up to sale by public auction, under the usual
conditions, viz. “that the highest bidder shall be the purchaser,” if
the owner, or any third person on his behalf, secretly attend the sale
and bid for the goods, in order to enhance the price, it is a fraud upon
the real bidders; and the sale is therefore void.(q) ſ
[12Wes. 483. But if a vendor employs a person to bid for ſº up
to a certain price, with a view to prevent a sale under that price, this
is not to be considered fraudulent. 1 Mad. Chan. 257.
(q) Berwell v. Christie, Cowp. 395. Howard v. Castle, 6 Term Rep. 642. S.
T. But see 1 Fonb. Treat. of Eq. 1 b. c. 4. s. 4. n. x. Christie v. the Attor-
ney-General, 6 Bro. P. C. 520.
CHAP. III.] void by the Common Lau; §§
Where all the bidders at an auction, except a purchaser, are mere-
ly puffers, the sale is fraudulent; but where there are any real bid-
ders who bid against each other, the bidding of the puffers will not
render the sale invalid. Ibidº-4 Bro. P. C. 193. last edition.]
So, if fl. agree to purchase goods of B. at a certain sum for the bes
nefit of C.; any secret agreement between B. and C. that the latter
shall pay a further sum for them is void, as a fraud on A.; and C. is (r), Jackson
not liable to pay such further sum.(r) 3. {..."; *
551.
*So, an agreement to pay so much in the pound for recommending # 38
customers to purchase goods, is said(s) to be illegal; such engagements (). Per Lord
having a tendency to enhance the price of the goods; and consequent- #º.
ly a species offraud upon third persons. Stanton, 4
#. Reps
* tº . 179.
So, if all the creditors,of an insolvent consent to accept a composi-
tion for their respective demands upon an assignment of his effects
by a deed of trust, to which they are all parties, and one of them, be-
fore he executes, obtains from the insolvent a promissory note for the
residue of his demand, by refusing to execute till such note be made;
the note is void in law, as a fraud on the rest of the creditors; and a
subsequent promise to pay it is a promise without consideration, and
therefore will not support an action.(?) (i) Cockshott
v. Bennett, 2
i. # , . - *g . . . . . . T Rep.
[To render the security thus taken fraudulent and invalid, it is ne- .." Jºan
cessary that it should be unknown to the rest of the creditors. Hib- #. *:::: 4
blethwaite’s case, mentioned;—13 Wes. 586, 6 Vesey 300. - fºur
Such agreement is bad only, it seems, as to the creditors, and can- v. Rose 4.
not be relieved against in equity merely at the instance of the debtor, #16 372. S,
who has himself been guilty. See 1 Maddock's Chancery, 224.]
Fraudulent Representation and Concealment of material Circum-
stances.] The only remaining circumstance which need be noticed
in this general view of the subject is the fraudulent representation, or
concealment of material circumstances, which, it is said,(u) vitiates all (v) per Yates,
contracts. For it is a rule, that each of the contracting parties is ºst. Pl.
* * • * * * - Rep. 465.
bound to disclose faithfully to the other all material circumstances sº atº, 2 P.
within his knowledge respecting the subject matter of the contract; Wms. 17%
: * e - º * * Dou we 260.
and tº his be omitted either from design, neglect, or accident, the con- ; *: Rep.
tract is void. - 12. Skin. 327.
[Not only good morals, but the common law requires, that every
man in his contracts, shöuld observe good faith, and act with common ... ---
honesty—And money obtained by fraudulent concealment or false
representations, the law will compel to be paid to the party to whom
in equity and good conscience it belongs.-4 Mass. Rep. 488.]
Wor...I. [5]
34 Of Illegal Contracts, [PAir I.
|
|
With respect, however, to concealment, it is apprehended that the
rule only applies to cases of concealment of material circumstances
which are exclusively within the knowledge of one of the contracting
parties; and does not extend to cases of sales, where both parties in-
spect the commodity bargained for, and each exercises his own judg-
ment as to the quality and value, &c. and where no deceit is practis-
# 39 ed by either party.(v)
(v) Wide 2
fººl. *Having now shown what contracts and agreements are void at the
166. Et vide common law, I shall proceed to point out those which are made void
post. Part III. by statute.
tit. warranty.
See also Sug-
!.*: of It is said,(w) that every contract made for or about any matter or
:* thing which is prohibited and made unlawful by any statute, is a void
(w) Per Holt, contract, though the statute itself does not mention that it shall be
***; so, but only inflicts a penalty upon the offender; because a penalty im-
269. plies a prohibition, though there are no prohibitory words in the sta-
tute.
So, a contract which is declared by a particular statute to be illegal,
is not made good by a repeal of that statute after the contract has been
@ 1 H. P. executed,(2)
65. 9
Sale of Offices, &c.] By the statutes 12 R. II. c. 2 and 5 and 6
Ed. VI. c. 16. the sale of certain public offices, and the deputations
thereof, are prohibited; and, by the latter statute, it is enacted that
all agreements, covenants, bonds, or assurance for any of the said of-
6) For the fices, or the deputation thereof, shall be void.(y)
cases upon
º: * By the stat. 23 Hen. VII. c. 9. the sheriff is directed to let out of
Part III, tit. prison all persons by them arrested on mesne process, or by cause of
; .* indictment of trespass, upon reasonable sureties of sufficient persons.
sale of offices, And it is enacted, “that no sheriff shall take any obligation for any
:* “cause therein directed, but only to themselves, of any person, nor by .
3. “any person which shall be in their ward by the course of the law,
“but by the name of their office, and upon condition written, that the
“ said prisoners shall appear at the day contained in the writ, bill, or
“warrant, and in such places as the said writs, bills or warrants, shall
“require. And that if any of the said sheriffs, or other officº or
“ministers, take any obligation in other form, by colour of their offi-
“ ces, it shall be void.”
# 40 *Upon this statute it has been holden, that if a sheriff le?aprisoner,
who is not bailable, go at large upon his single bond; such obligation
(g) 10 Co. is void.(2)
100. b.
CHAP, III.]
35
void by Statute.
This statute also extends to promises, as well as to obligations ;
and accordingly it has been holden,(a) that an agreement in writing
to put in good bail for a person arrested on mesne process, at the re-
turn of the writ, or surrender the body, or pay debt and costs, made
by a third person with the bailiff of a sheriff, in consideration of his
discharging the party arrested, was void by the statute of Hen. VI.;
for, since the passing of that statute, the usage has been to take the
security by bond; and that bond, by the words of the statute, must
be entered into to the sheriff, or to such officer as has the return of
process; whereas here was no bond, but a mere simple contract, and
that with the sheriff's officer; and farther the bond must be given on-
ly for the appearance of the party, and for no other purpose.
Usury.] By 12 Ann. St. 2. c. 16. to prevent usury, it is enacted,
“ that no person or persons whatsoever upon any contract, shall take
“directly, or indirectly, for loan of any monies, wares, merchandize,
“ or other commodities whatsoever, above the value of 5l. for the for-
“bearance of 100l. for a year, and so after that rate for a greater or
“lesser sum, or for a longer or shorter time; and that all bonds, con-
“tracts and assurances whatsoever, made for payment of any princi-
“pal or money to be lent or covenanted to be performed upon, or for
“any usury, whereupon, or whereby there shall be reserved or taken
“above the rate of 5l. in the hundred, as aforesaid shall be utterly
* Void.” - f
These restrictions, however, do not apply to contracts made in
foreign countries; for on such contracts our courts will direct the
payment of interest according to the law of the country in which such
contract was made.(b) Thus, Irish, ºffmerican, Turkish, and Indian
interest have been allowed in our courts to the amount of even 12l.
per cent. For the moderation or exorbitance *of interest depends up-
on flocal circumstances, and the refusal to enforce such contracts
would put a stop to all foreign trade.(c)
Every security given upon an usurious consideration is so contami-
mated by it, that the statute of usury makes the security absolutely
null and void; so that it cannot be enforced by law by any person,
howeyer innocent. Therefore, it has been held,(d) that a bill of ex-
change, or a promissory note, given upon an usurious consideration,
is void, even in the hands of an indorsee for a valuable consideration
without notice of the usury. t •
But if a ſº of exchangºlas been given for a bona fide considera-
tion, usury in any of the intermediate indorsements, shall not avoid
it in the hands of the bona fide indorsee, in an action against the ac-
ceptor (e)
(a) Rogers v.
1
Term Rep.
418.
(b) 1 P. Wms.
396. See al-
so Fombl.
Treat. of Eq.
b. 1. c. 4. s. 7.
Ile 8-
% 41
(c) See Sta-
pleton v. Con-
way, 3 Atk.
'727. Fonbl.
Treat. of Eq.
(d) Lowe v.
Waller, Doug.
'736. See also
1 Saund. 295.
m. 1.
(e) Daniel v.
Cartony, 1
Esp. Rep.
274.
ee also Parr
v. Eliason, 1
East,92. S. P.
36 Of Illegal Contracts, [PART I,
Gaming.] Gaming is also prohibited by statute, though at com-
mon law, the playing at cards, dice, &c. when practised innocently,
and as a recreation, is lawful if it be not within the restriction of any
(£) 2. Vent, statute.(f) But as the practice was found to encourage idleness and
*...* other vices, the statute 33 Hen. VIII. c. 9. restrained it among the in-
Esp, Rep.235, ferior sort of people. Gentlemen, were, however, still left free to
pursue it, until the 16 Car. II. c. 7, by which it is enacted, that “if
“any person, by playing or betting, shall lose more than 100l. at one
“time, he shall not be compellable to pay his loss, and the winner,
“shall forfeit treble the value; one moiety to the king, the other to
“the informer.” This provision of the legislature was, however,
soon found to be insufficient to its purpose: it was therefore enacted
by the stat. 9 Anne, c. 14. “that all bonds and other securities given
“ for money won at play, or money lent at the time to play with,
“should be utterly void ; that all mortgages or incumbrances of lands,
“made upon the same consideration should be and ensure to the use
“of the mortgagor, and that if any person at one time lose 101, at
“ play, he may, within three months, sue the winner, and recover it
# 42 “back by action of debt at law; and in case the loser does not, *with-
“in the time-limited, sue and prosecute, any other person may sue
“the winner for treble the sum so lost; and the winner is obliged
“and compellable to answer upon oath any bill or bills filed against
“him for discovering the sum or sums of money, or other thing, so
tº won by him at play.” *
Subsequent statutes have superadded further penalties to restrain
(g)4 Bl. Com, this fashionable vice; “which,” Sir William Blackstone observes,( g)
173. “may show that our laws against gaming are not so deficient as our-
“selves and our magistrates in putting these laws in execution.”
It is observable, that the stat. 16 Car II. declares, that the contract
for money lost at play, and all securities given for it, shall be utter-
ly void; but the stat. 9 Anne, confines itself to the securities for mo,
ney won or lent at play. Upon which it has been determined, that
though both the security and the contract are void as to money won
(#) Wide Rº: at play, only the security is void as to money lent at play ; and that
#. Žbum, the contract remains, and the lender may maintain his action for it.(h)
jø80." . . . .
#3:...", These acts having declared the security void, it may be observed,
Stra. 1249. that a bill of exchange given for money won at play, cannot be reco-
Hussey v. Jº wered upon, though in the hands of an indorsee for a valuable consider
eob, Com, * * tº o º * -- - - -
Rep. 4. ration, and who is totally ignorant of the circumstances weeting the
(i) Bowyer v. itv.(i) *. *
Bampton, 2 security (...)
Stra. 1155. , - t A £
Lowe v. Wal- Stock-jobbing.] So, in order to prevent the pernicious and destruc-
leſ, Doug.
tive practice of Stock-Jobbing, it is enacted by the 7 Geo. II, c. 8,
CHAP. III.] void by Statute. 67
(made perpetual by 10 Geo. II. c. 8.) “that all contracts and agree-
“ments whatsoever which shall be made or entered into by or between
“any person or persons whatsoever upon which any premium or con-
“sideration in the nature of a premium shall be given or paid for liber-
“ty, to put upon, or deliver, receive, accept, or refuse any public orjoint
“stock or other public securities whatsoever, or any part, share, or in-
“terest therein, and also all wagers, and contracts in the nature of
“wagers, and all contracts *in the nature of putts and refusals, relat- # 43
“ing to the then present or future price or value of any such stock or
“securities, as aforesaid, shall be null and void to all intents and pur-
“poses whatsoever, and all premiums, sum or sums of money what-
“soever, which shall be given, received, paid or delivered, upon all
“such contracts or agreements, or upon any such wagers, or contracts
“in the nature of wagers, as aforesaid, shall be restored and repaid to
“the person or persons, who shall give, pay, or deliver the same, who
“shall be at liberty, within six months from and after the making such
“contract or agreement, or laying any such wager, to sue for, and
“recover the same from the person or persons to whom the same is
“ or shall be paid or delivered with double costs of suit by action of
“ debt founded on this act, to be prosecuted in any of his Majesty’s
“courts of record, in which action no essoin, protection, wager of law,
“ or more than one imparlance shall be allowed; and it shall be suffi-
“cient therein for the plaintiff to allege that the defendant is indebted
“to the plaintiff, or has received to the plaintiff’s use, the money or
“premium so paid or received, whereby the plaintiff’s action accrued
“to him, according to the form of this statute, without setting forth the
“special matter.”
Upon this statute it has been determined,(k) that where A. being (k) Steers v,
employed as a broker for B. in stock-jobbing transactions, paid Hºhº 6
the differences for him ; a dispute arising between them respecting º" Rep.:
the amount of fl.’s demand, the matter was referred to C, who awar-
ded 603l. to be due : on which ºff. drew on B. for 100l., part of the
above, and indorsed the bill to C. after B. had accepted it ; held that
C. could not recover on the bill.
#
So, if a broker draw on his employer for differences paid for him
in stock-jobbing transactions, and the employer accept the bill, and
then the broker indorse it to a third person after it is due, the latter
cannot recover on the bill.(1) *
(l) Brown v.
* * Turner, 7
Kottery.]. All contracts or agreements for the sale of any tickets, or Tern Rep.
shares of tºkets, or chanca, in any private lottery; or, for the sale *
ef any chances of tickets in any public lottery; and all “insurances # 44
S8 - of Illegal Contracts, [PART. I.
- of numbers in any lottery, except by the holders of tickets in the pub-
º) Mºdeº, lic lottery, are prohibited by various statutes.(m)
Geo. 1. c. 9.s
43. 8 Geo. *** irº r s a º * tº
º. 2.; 36. Wager Policies, &c.] And, in order to prevent another species of
sºº: ; gaming, called wager policies, or insurances of interest or no interest,
Geo. II. c. 28. the stat. 19 Geo. II. c. 37. s. 1. enacts, “that no assurance shall be
22 Geo. III. - - - * -- º - e - . -
... ... “made by any person or persons, on any ship or ships belonging to
III. c. 119. s. “his majesty, or any of his subjects, or on any goods, merchandizes,
#;". “ or effects laden or to be laden on board of any ship or ships, interest
2 fºrm. Rep. “ or no interest, or, without further proof, or interest than the policy, or,
617. “ by way of gaming or wagering, or, without benefit of salvage to the
“ insurer; and that every such insurance shall be void to all intents
(n) For the “ and purposes.”(n) -
cases upon
thi tat. id & *. e
#...i.” And by the fourth section of this act, which was made to prevent
º.# all re-assurances, it is enacted, “that it shall not be lawful to make
“ re-assurance, unless the assurer shall be insolvent, become a bank-
“rupt or die; in neither of which cases, such assurer, his executors,
“administrators, or assigns, may make re-assurance to the amount of
“ the sum before by him assured ; provided it shall be expressed in
(o) Wide Park “ the policy to be a re-assurance.”(0)
(ºn. insurance, - -
chap. 15. * * * . .
By the stat. 6 Geo. I. c. 18. s. 12. it is enacted that all policies of
insurance upon ships at sea, made by any corporation, (other than the
two corporations therein mentioned) or by persons acting in part-
(?) Ibid. Ch.1, nership shall be void.(p)
So, all insurances upon prohibited goods, or relating to contraband
trading, are void by the statutes 9 & 10 W. & M. c. 44. & 33 Geo,
(º, 13. III c. 52(q)
Smuggling.] So, all contracts made in contravention of the reve-
nue laws of this country are void. Thus, where an agreement was
$ 45. made between two parties,(r) subjects of this country, for the *sale
and delivery of goods in Guernsey, for the purpose of being smuggled
into England; it was holden, that the vendor could not maintain an
* action for the value of the goods. And in a subsequent case,(s) it
(s) Clugas v, - º tº g & * +---
}%iºiº. 4 was decided, that the circumstance of the vendor being an inhabitant
Term Rep. of Guernsey, would not alter the case, for he was still a subject of
466. this country. -
Treating Voters at Elections.] By the statute 7 and 8 W. III, c.
4. (which was made to prevent all species ºf bribery and 3rruption aś
elections for members of parliament) it is enacted, “that no person,
(r) Biggs v. Lawrence, 3 Term Rep. 454. Wide post, Part III, tit. Goods
Šold, &c. -
CHAP. III.] void by Statute. 39
“ after the teste of the writ to the sheriff, shall before his election di-
“rectly or indirectly, give, present, or allow to any person or persons
“having voice or vote in such election, any money, meat, drink, en-
“tertainment, or provision, or make any present, gift, reward, or en-
“ tertainment, or shall at any time hereafter, make any promise, agree-
“ment, obligation, or engagement, to give or allow any money, meat,
“drink, provision, present, reward, or entertainment, to or for any
“such person or persons in particular, or to any such county, city, &c.
“ or to or for the use, &c. of any such person, in order to be elected, or
“for being elected to serve in parliament for such county, city,” &c.
Upon this statute it has been holden,(t) that an inn-keeper furnish- (9 Ribbonsw.
ing provisions for voters, at the request of a candidate, after the teste §rickett, 1
of the writ, cannot recover the expences of such provisions against . ºi.
the candidate. 3. the bribery
º Act, 2 Geo.
II. c. 24. 1
.Agreement to sign a Bankrupt’s Certificate.] All agreements by a Camp. 550.
bankrupt with a creditor to pay money, &c. for signing his certificate **
are declared void by the stat. 5 Geo. II. c. 30. s. 11. which enacts,
“that every bill, note, contract, agreement, or other security whatso-
“ever, to be made or given by any bankrupt, or by any other person,
“ unto or to the use of or in trust for any creditor or creditors, or for
“the security of the payment of any debt or sum of money due from
“such bankrupt at the time of his becoming bankrupt, or any part
“ thereof, between the time of his becoming bankrupt, and such bank-
“rupt’s discharge, as a "consideration, or to the intent, to persuade # 46
“him, her, or them to consent to or sign any such allowance or cer-
“tificate, shall be wholly void and of no effect; and the monies there-
“by secured, or agreed to be paid shall not be recovered or recovera-
“ble.”(u) (w) Pide
Smith. v.
romley,
Sale of liquors, &c.] By the statute 24 Geo. II. c. 40. s. 12. (which #. 696.
was made for the purpose of preventing the pernicious effects of dram-
drinking and selling liquors in small quantities,) it is enacted, “that
“no person or persons whatsoever shall be entitled unto, or maintain
“any cause, action, or suit for, or recover either in law or equity, any
“sum or sums of money, debt, or demands whatsoever, for or on ac-
“count of any spirituous liquors, unless such debt shall have really
“been and bona fide.contracted at one time, to the amount of 20s. or
“upwards; nor shall any particular article, or item in any account
“ or demand for distilled spirituous liquors, be allowed or maintained,
“where the liquors delivered at one time, and mentioned in such arti-
“cle or item, shall not amount to the full value of 20s, at the least, and
“that without fraud or covin.”
40 Of Illegal Contracts, &c. [PART I.
But this statute does not extend to liquors purchased for the pur-
% Wide pose of being sold again.(v)
eake’s case,
N. P. 180. et 3
vide post, In what cases illegal contracts maybe rescinded, and when the mo-
à.i. ney paid upon them may be recovered back. Wide post, Part III.
Chap. VII. tit. Money had and received on illegal contracts.
3.
#- ", , ,
w
CHAPTER IV.
of THE STATUTE of FRAUDs AND PERJURIEs Upon contRAcr;
AND AGREEMENTS.
BEFORE the passing of the statute 29 Car. II. c. 3. contracts
and agreements were most commonly entered into verbally, without
any writing ; but this giving rise, as appears by the preamble of the
act, to many fraudulent practices, which were endeavoured to be up-
held by perjury and subornation of perjury, the legislature deemed it
expedient that certain contracts and agreements should be reduced
into writing, and signed by the party to be charged therewith, or by
his agent : and accordingly by the 4th section of the above statute
it is enacted, “That from and after the 24th day of June, 1677, no
“action shall be brought, whereby to charge an executor or adminis-
“trator, upon any special promise, to answer damages out of his own
“estate ; or whereby to charge the defendant upon any special pro-
“mise to answer for the debt, default, or miscarriages of another per-
“son ; or to charge any person upon any agreement made upon con-
* sideration of marriage ; or upon any contract or sale of lands, tene-
“ments or hereditaments, or any interest in or concerning them; or up-
“on any agreement that is not to be performed within the space of
“one year from the making thereof; unless the agreement upon
“ which such action shall be brought, or some memorandum or note
“thereof, shall be in writing, and signed by the party to be charged
“ therewith, or some other person thereunto by him lawfully autho-
* rised.”
And by the 17th section it is further enacted, “That from and af.
“ter the said 24th day of June, no contract for the sale of any goods,
“wares, and merchandizes, for the price of 10l. 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 of payment, or that some
“ note or memorandum in writing of the said bargain be made and
“signed by the parties to be charged by such contract, or their agents
“ thereunto lawfully authorised.”
Wol. I. [6]
# 48
Of the Statute of Frauds upon [PART I.
# 49
(a) 1 Saund.
211. n. 2.
(b) 7 Term
Rep. 350. m.
These two clauses, which are the only parts of the statute relating
. the subject of this work, I propose to consider in the following or-
er :
1. Of Promises by Ea:ecutors and administrators. .
2. Gf Promises to answer for the Debt, &c. of another.
3. Of Promises in Consideration of Marriage.
4. Of a Contract or Sale of Lands.
5. Of Agreements not to be performed within a Year.
6. Of Contracts for the Sale of Goods.
7. Gºf the contents and Signature, &c. of the Agreement required by
the Statute ; and &
First. Of the contents and signature of a contract or sale
of lands.
Secondly. In what cases the consideration must be stated.
Thirdly. Of the contents and signature of a contract for
the sale of goods.
Fourthly. Of sales by auction and by brokers.
* Lºs
1. Of Promises by Earecutors and Administrators.
The first branch of the 4th clause of the statute enacts, that no ac-
tion shall be brought whereby to charge any executor or administra-
tor upon any special promise, to answer damages out of his own es-
tate ; unless the agreement upon which such açtion shall be brought,
or some memorandum or note thereof, shall be in writing, and signed
by the party to be charged therewith, or some other person thereunto
by him lawfully authorised.
Now, to charge an executor or administrator upon any special pro-
mise to answer damages out of his own estate, it is not only necessa-
ry that the agreement should be in writing, and signed by the party to
be charged therewith, or by his agents as directed by the statute, but
it is also necessary that the promise should be made on a good consid-
eration : For the statute has made no other alteration *of the common
law respecting agreements, than merely declaring that they shall be
evidenced by writing;(a) and the common Iaw, as we have seen in a
former chapter, requires that every promise should be founded on a
good consideration.
Thus, in the case of Rann and another, executors of Mary Hughes
v. Isabella Hughes, administratrix of J. Hughes, in error,(b) the dec-
laration stated that on the 11th June, 1764, divers disputes had arisen
a; et wide ante, between the plaintiff’s testator and the defendant’s intestate, which
chap. 2. p. 10. they referred to arbitration; that the arbitrator awarded that the de-
CHAP. IV.] Promises by Executors. 43
fendant’s intestate should pay to the plaintiff’s testator 983l. That
the defendant’s intestate afterwards died possessed of effects suffi-
cient to pay that sum ; that administration was granted to the de-
fendant; that Mary Hughes died, having appointed the plaintiffs her
executors; that at the time of her death the said sum of 983!, was un-
paid, “by reason of which premises the defendant, as administratrix,
“became liable to pay the plaintiffs, as executors, the said sum, and
“being so liable she in consideration thereof undertook and promised
“to pay,” &c. A general judgment was entered in the court of
King’s Bench against the defendant de bonis propriis. This judg-
ment was reversed in the Earchequer Chamber ; and a writ of error
was afterwards brought in the house of lords, where, after argument,
the following question was proposed to the judges by the Lord Chan-
cellor, “Whether sufficient matter appeared upon the declaration to
“warrant, after verdict, the judgment against the defendant in error
“in her personal capacity;” upon which the Lord Chief Baron
Skynner delivered the opinion of the judges to this effect:
“The statute of frauds was made for the relief of personal repre-
“sentatives and others, and did not intend to charge them further
“ than by common law they were chargeable.” His lordship showed
that at common law the mere circumstance of the testator being in-
debted was not a sufficient consideration; and, after referring to the
clause of the statute which relates to the present subject, he observ-
ed, “ that words were merely negative, and “that the executors and * 50
“administrators should not be liable out of their own estates, unless
“the agreement upon which the action was brought, or some memo-
“randum thereof was in writing and signed by the party. But this
“does not prove that the agreement was still not liable to be tried
“ and judged of as all other agreements, merely in writing, are by the
“common law, and does not prove the converse of the proposition that
“when in writing the party must be 'at all events liable.” He said
“ that all his brothers concurred with him that in this case there was
“not a sufficient consideration to support this demand as a personal
“ demand against the defendant, and that its being now supposed to
“have been in writing makes no difference. The consequence of
“which is that the question put to us must be answered in the mega-
“tive,’ ”
The word agreement in this section properly includes the conside-
ration, as well as the promise; and therefore the consideration must (e) Wide post,
f f h wº º tit. In what
orm part of the written agreement.(c)
cases the con-
sideration
An executor before probate of the will is within the provision of * be sta-
this statute; but an administrator does not come within it, until he (d) Wide Ro-
tº º º * * , ; * berts on the
has actually obtained administration.(d) Statute of
Frauds, 20t.
44
of the Statute of Frauds upon Promises [PART I.
# 51
(e) Lord
Raym. 1085.
6 Mod. 248.
S. C.
§
3. Of Promises to answer for the Debt, Default or Miscarriages
of another Person,
By the second branch of the 4th clause it is enacted, “That no ac-
“tion shall be brought, whereby to charge the defendant upon any
“special promise to answer for the debt, default or miscarriages of
“another person; unless the agreement upon which such action shall
“be brought, or some memorandum or note thereof, shall be in writing,
“and signed by the party to be charged therewith, or some other per-
“son thereunto by him lawfully authorised.”
The promise here mentioned must be on behalf of a third person,
originally liable to be sued; otherwise it is not within the statute.
*One of the leading cases on this part of the statute is Buckmyr v.
Darnall,(e) which was an action of assumpsit, wherein the plaintiff de-
clared, that the defendant, in consideration that the plaintiff, at the
request of the defendant, would let to hire, and deliver to one Joseph
English, a gelding of the plaintiff’s, to ride to Reading in the county
of Berks, undertook and promised the plaintiff that the said Joseph
would deliver the said gelding to the plaintiff.
Upon non assumpsit pleaded, this cause came to trial before Holt,
Chief Justice, at Westminster Hall; and the counsel for the defen-
dant insisting, that the plaintiff ought to produce a note in writing of
this promise within the statute of frauds; and the Chief Justice
doubting of it, a case was made for the opinion of the other judges.
And it was argued for the defendant, that this case was within the sta-
tute of frauds; for it was a promise to answer for the default and
miscarriage of the person the horse was lent to ; that the very letting
out and delivery of the horse to English, implied a contract by En-
glish to redeliver it, and he was bound by law so to do, and conse-
quently the defendant was to answer for the default of another; that
it had been ruled, that where an action will lie against the party
himself, there an undertaking by a third person is within the stat-
ute; but that where no action will lie against the party himself, it is
otherwise.
To this it was answered for the plaintiff, that here the credit was
wholly given to the defendant; that the rule mentioned by the coun.
sel on the other side must be understood, where an action does or does
not lie against the party himself on the contract, and not where an
action does or does not lie against him upon collateral respects. And
therefore in this case for an actual conversion, or for refusing to re-
deliver the horse, English might be charged in trover or detinue; yet
he being not chargeable upon the contract, the case was not within the
CHAP. IV.] to answer for the Debt, &c. of Another.
45
statute, that this contract could not be said properly to be a promise to
answer for the default or miscarriage of another, unless English were
liable by the first contract.
*Upon the first motion and argument of this case, the three judges
(f) against Powys seemed to be of opinion, that this case was not
but if any action could be maintained against him, it must be for a
subsequent wrong in detaining the horse, or actually converting it to
his own use. And Powell, Justice, said, “ that that rule, of what
“things shall be within the statute, is not confined to those cases on-
“ly, where there is no remedy at all against the other, but where there
“is not any remedy against him on the same contract.” This case is
just like the case where a man says “send goods to such a one, and I
“will pay you;” that is not within the statute; for the seller does
not trust the person he sends the goods to. So here, the stable-keep-
er only trusted the defendant, and an action on the contract will not
lie against English, but for a tort subsequent he may be charged in
detinue, or frover and conversion, which is a collateral action.
Powys, J. said, “that there was a trust to English, for the very len
“ding of the horse necessarily implies a trust to the person he is lent
“to, and consequently the defendant in this case is to answer for the
“default of another, and is within the statute.”
Powell, J, agreed, “ that if a man should say, lend J. S. a horse, and
“I will undertake he shall pay the hire of it 3 or send J. S. goods,
“ and I will undertake he shall pay you ; that those cases would be
“within the statute:” and agreed with Powys, “that if any trust
“were given to English, then the case would be within the statute.”
But he, and the Chief Justice, and Gould, held, that here was no
credit given to English ; and the Chief Justice agreed with him; that
if there had, this promise would have been but an additional security,
and within the statute. And the Chief Justice said, “ that if a man
“should say ‘let J. S. ride your horse to Reading, and I will pay
“you the hire,’ that is not within the statute, no more than if a man
“should say, ‘deliver cloth to J. S. and I will pay you.’” He said
also, “that a bailee of a horse for hire is not bound to redeliver him
“at all events, but if he be robbed of him without fraud in him, he is
“excused.” The principal case, however, was adjourned ; and on a
subsequent day the chief Justice delivered the opinion of the court :
he said, “that “the question had been proposed at a meeting of the
“judges, and that there had been a great variety of opinions between
“ them, because the horse was lent wholly upon the credit of the
“defendant; but that the judges of the court of King’s Bench were
* all of opinion, that the case was within the statute. The objection
% 52
(f) Holt, Chs
within the statute, because English was not liable upon the contract; .#. J.
Powell, J.
# 53
46
Of the Statute of Frauds wbon Promises [PART I.
g) Per Holt
Ch. J. in
PWatkins v.
“that was made was that if English did not deliver the horse, he
“was not chargeable in an action upon the promise, but in trover, or
“detinue, which are founded upon the tort, and are for a matter sub-
“sequent to the agreement. But I answered, that English may be
“charged on the bailment in detinue on the original delivery, and a
“detinue is the adequate remedy, and upon the delivery English is
“liable in detinue, and consequently this promise by the defendantis
“collateral, and is within the reason and the very words of the sta-
“tute ; and is as much so, as if, where a man was indebted, J. S., in
“consideration that the debtee would forbear the man, should promise
“to pay him the debt; such a promise is void, unless it be in writing.
“Suppose a man comes with another to a shop to buy, and the shop-
“keeper should say, ‘I will not sell him the goods, unless you will
“‘undertake he shall pay me for them,” such a promise is within
“ the statute : otherwise, if the man had been the person to pay for
“the goods originally. So here, detinue lays against English, the
“principal ; and the plaintiffhaving this remedy against English, the
“principal, cannot have an action against the defendant, the under-
“taker unless there had been a note in writing.”
So, if A. promises B., being a surgeon, that if he will cure D. of a
wound, he will see him paid; this is only a promise to pay if D. does
not, and, therefore, it ought to be in writing by the statute of frauds,
But if A. promise in such a case, that he will be B.’s paymaster, what-
ever he shall deserve, it is immediately the debt of 4. and he is liable
without writing.(g) *
periº.1 Ed. A distinction is taken between a conditional and an absolute under-
Raym. 224.
(h) Per Lee
taking; as if A. promise to pay B. such a sum if C. does not, there ºff.
is but a security for C. But if ºff. promise that C. will pay such a sum,
J. is the principal debtor; for the act done was on his credit, and no
way upon the credit of C.(h)
Ch. J. in Gor-
don v. Martin, “With respect, however, to the sale of goods, the general line now
Fitzg. 303.
# 54
(i) Per Bul-
taken is, that if the person for whose use goods are furnished, be liable
at all, any other promise by a third person to pay that debt must be in
writing, otherwise it is void by the statute.(?)
fer, J. 2 Term
Rep. 81.
(R) Cowp.
227.
Thus, in the case of Jones v. Cooper,(k) which was an action for
, goods sold and delivered, the facts were these : the defendant had fre-
quently given written orders to the plaintiff to deliver goods of diffe-
rent kinds to one Smith, her son-in-law; in all of which she under-
took to be answerable for the payment. These had been all punctu-
ally discharged. But the goods upon which the present question
arose were delivered to Smith, in consequence of aparol order, and a
parol promise by the defendant in these words; “I will pay you if
CHAP. IV.] to answer for the Debt, &c. of Another,
47
Smith will not.” That the undertaking was before the delivery of
the goods: but that Smith was entered as the debtor in the plaintiff’s
books.
Lord Mansfield, C. J. delivered the opinion of the court as follows:
“We are all of opinion upon the authority of the cases in the books,
“ that the promise by the defendant in this case to pay, if Smith did
“ not, is a collatteral undertaking within the statute of frauds; and it
“ is so clear that it would only be misspending time to go through the
“ cases, or to say much about it.”
So in the case of Matson and another v. Wharam,(!) which was also (1) 2 Term
an action for goods sold and delivered, the facts were as follows: In Rep. 80.
January, 1785, the defendant, Wharam, applied to Matson, one of the
plaintiffs, and asked him if he was willing to serve one Robert Coult-
hard of Pontefract with groceries; he answered they dealt with no-
body in that part of the country, and did not know Coulthard ; to
which the defendant, Wharam, replied, if you do not know him, you
know me, and I will see you paid. Matson then said he would
serve him ; and Wharam answered, he is a good chap, but I will see
you paid. A letter was afterwards received by the plaintiffs from
Coulthard, containing an order for goods to the amount of 7l. and the
goods were afterwards sent to Coulthard accordingly. The plaintiffs
made Coulthard the debtor for these “goods in their books. They af-
terwards applied to Coulthard for payment of the debt by letter, and
receiving no answer, they then applied to the defendant, Wharam,
who refused to pay the money.
There was no promise in writing made by the defendant: and the
question for the opinion of the court was, whether the plaintiffs were
entitled to recover.
The court were of opinion, that this was a collatteral promise to pay
in case Coulthard did not, and therefore within the statute; conse-
quently the plaintiff was not entitled to recover.
% 55
So, in the case of Anderson v. Hayman,(m) which was an action of (n) 1 H. P.
assumpsit; at the trial, the jury found a verdict for the defendant on 120.
these facts: the plaintiff was a woollen:draper in London, and employ-
ed one Biffin as a rider to receive orders from his customers in the
country. The defendant meeting with Biffin at Deal, desired him to
write to the plaintiff, requesting him to supply the defendant's son (who
traded to the West-Indies) with whatever goods he might want, on
his, the defendant’s credit, and at the same time said, “ Use my son
“well, charge him as low as possible, and I will be bound for the pay-
“ment of the money as far as 800l. or 1,000l.” Biffin accordingly
wrote to the plaintiff the following letter : “Mr. Hayman of this town
48 of the Statute of Frauds upon Promises. [PART I.
“says his son will call on you, and leave orders, and he has promised
“me to see you paid, if it amounts to 1,000l.” Mr. William Pitches
was also present as a witness.
“N. B. If deal for 12 month's credit, and pay in 6 or 8 months
“ expects discount in proportion.” Soon after, the son received goods
from the plaintiff to the amount of 800l. which were delivered to him
in consequence of the above-mentioned order from the father. The
son was debited in the plaintiff’s books, and being applied to for
payment, wrote an answer to the plaintiff as follows:
“Your favour of the 27th past has been forwarded to me from Os-
* tend by my clerk, in answer to which I can only say, “that I under-
# 56 “ stood your credit for the goods was 12 months, which was also men-
“tioned by your rider to my father. I shall at this rate make your re-
“mittances for the different parcels as they come due, and re-
Ǻ main, &c.
“ Thomas Hayman, junior.”
He afterwards became à bankrupt, and this action was brought
against the father, to recover the value of the goods.
The court on a motion for a new trial, were clearly of opinion, that
this promise not being in writing, was void by the statute of frauds,
as it appeared from the evidence of the letter of Hayman the youn-
ger, that credit was given to him, as well as the defendant.
But, in the case of Harris v. Huntbach,(n) which was an action for
money lent; the question for the opinion of the court was, whether
the promise was a collatteral or original undertaking. It appeared
from the evidence, that one Davidson coming to the plaintiff by the de-
fendant’s order, for money to pay workmen, the plaintiff refused to
pay the money, unless the defendant would sign a receipt. Where-
upon the defendant wrote the following note, viz. “Mr. Harris at the
“request of the gardener, the workmen wanting money greatly, for
“ the work at the wood-houses, this is to certify that it is my request
“you pay to Mr. Davidson, on the account of Master Hillier, for the
“ workmen’s use, the sum of 15l. as witness my hand, S. Huntbach,”
and a receipt was given by the said Davidson, the gardener, to the
plaintiff, on the plaintiff’s paying him this 15l.
(n) 1 Burr.
373.
It also appeared that Master Hillier, at the time the money was
advanced, was an infant, and that the wood-houses belonged to him.
The court determined that the note amounted to an original under-
taking; and that there was nothing like a collatteral request or prom-
1$0.
#
ÜHAr. IV.] to answer for the Debt, &c. of Another.
Mr. Just. Foster said, “The infant was not liable, and therefore it
“could not be a collateral undertaking. It was an original undertak-
“ing of the defendant.”
*It is, however, in many cases very difficult to discover from the
mere expressions of the party, to whom the credit was originally giv-
en; and therefore, in some instances, it is deemed necessary to take
into consideration not only the expressions used, but the particular
situation of the defendant at the time of his undertaking, and also the
amount of the sum for which he is supposed to have made himself li-
able.
Thus, in the case of Keate v. Temple.() which was an action for (o) i Bos. &
goods sold and delivered, and work and labour. The principal facts Pull. 158.
proved at the trial were these : The plaintiff was a taylor and slop-
seller at Portsmouth, and the defendant the first lieutenant of his
Majesty’s ship the Boyne. When that ship came into port, the defen-
dant applied to a third person to recommend a slop-seller who might
supply the crew with new clothes, saying, “He will run no risk; I
“will see him paid.” The plaintiff being accordingly recommended,
the defendant called upon him, and used these words, “I will see you
“paid at the pay-table; are you satisfied?” He answered, “perfectly
“ so.” The clothes were delivered on the quarterdeck of the Boyne:
slops are usually sold on the main-deck : the plaintiff produced sam-
ples to ascertain whether his directions had been followed; some of
- the men said that they were not in want of any clothes, but were told
by the defendant that if they did not take them, he would punish them;
and others, who stated that they were only in want of part of a suit,
were obliged to take a whole one, with anchor buttons to the jacket,
such as are usually worn by petty officers only. The clothing of the
crew in general was light, and adapted to the climate of the West-In-
dies, where the ship had been last stationed. Soon after the delivery,
the Boyne was burnt; and the crew dispersed into different ships.
On that occasion, the plaintiff, having expressed some apprehensions,
for himself, was told by the defendant, “Captain Grey (the captain
“ of the Boyne) and I will see you paid; you need not make yourself
“ uneasy.” After this the commissioner came on board the Commercé
de Marseilles, in order to pay the crew of the Boyne; at which timé
the defendant stood at the pay-table, and having taken some money
out of the hat of the first man who was paid, gave it to the plaintiff;
the next man refused to part with his pay, and was immediately put in
irons. The defendant then asked the commissioner to stop the pay
of the crew, who answered that it could not be done.
*The learned judge(p) before whom the cause was tried, in his di-
# 58
rection to the jury said, “that if they were satisfied on the evi- (g) faik
Wo ke I, [7]
&
50
Of the statute of Frauds upon Promises [PART i.
“dence, that the goods in question were advanced on the credit of the
“defendant, as immediately responsible, the plaintiff was entitled to a
“verdict ; but if they believed, that at the time when the goods were
“furnished, the plaintiff relied on being able, through the assistance of
“ the defendant to get his money from the crew, they ought to find for
the defendant.” The jury found a verdict for the plaintiff 576l. 78.
8d.
But the court of Common Pleas afterwards directed a new trial
upon the following grounds stated by Lord Ch. J. Eyre, in delivering
the opinion of the court: “ There is one consideration, independent
“ of every thing else, which weighs so strongly with me, that I should
“wish this evidence to be once more submitted to a jury. The sum
“recovered is 576l. 7s. 8d., and this against a lieutenant of the navy:
“a sum so large, that it goes a great way towards satisfying my mind
“ that it never could have been in the contemplation of the defendant
“ to make himself liable, or of the slop-seller to furnish the goods on
“ his credit to so large an amount. I can hardly think that had the
“ Boyne not been burnt, and the plaintiff been asked whether he
“would have the lieutenant or the crew for his paymaster, but that
“he would have given the preference to the latter. The circum-
“ stance of this case creates some prejudice against the defendant, but
“ which I think capable of explanation. There is some appearance of
“harshness in making the men purchase these clothes against their
“inclination. But it was in evidence, that though they were pretty
“ well clothed, yet their clothes were adapted to a warm climate rath-
“er than to the service in which they were to be engaged. It was
“ therefore the bounden duty of the officer to take some course to
“ oblige the crew to purchase proper necessaries. We all know that a
“ sailor is so singular a creature, so careless of himself, that he can-
“ not, though his life depend upon it, be prevailed upon, without force,
“even to bring up his hammock upon deck to be aired. We know
“ that he will risk any danger in order to employ his money in a way
“ that he likes, rather than lay it out in that provident method which
“his situation may require. The whole of the imputation then on the
“defendant and Captain Grey amounts to this, that when the men
“were to be "clothed, they wished them to be somewhat well dressed.
“I do not know but that this circumstance may have had some in-
“fluence on the jury. But I do not feel the force of it when opposed
“ to the weight of the evidence on the other side, so as to make the
“officer liable for so large a sum. From the nature of the case it is
“apparent that the men were to pay in the first instance : the defen-
“dant’s words were, ‘I will see you paid at the pay-table ; are you
“ satisfied ?’ And the answer then was ‘perfectly so.” The mean-
“ing of which was, that however unwilling the men might be to pay
“ themselves, the officer would take care that they should pay. The
Jºk
CHAP. IV.] to answer for the Debt, &c. of Another. 51
“question is, whether the slop-man did not in fact rely on the
“ power of the officer over the fund out of which the men’s wages
“were to be paid, and did not prefer giving credit to that fund, rath-
“er than to the lieutenant, who, if we are to judge of him by others in
“ the same situation, was not likely to be able to raise so large a sum P
“Considering the whole bearing of the evidence, and that the learned
“judge who tried the cause has not expressed himself satisfied with
“ the verdict, I think this a proper case to be sent to a new trial.”
[Selwyn in his nisi prius 2 vol. 858 remarks that he omits this case
on account of its special circumstances.]
In the cases which are now about to be mentioned upon the same
branch of the statute, these points have been established, namely, if
the person who makes the promise was in any respect liable original-
ly to the debt, either alone or jointly with others, it does not come
within the statute. *
So, if there be any new consideration moving to the party making
the promise, it is out of the statute, though the debt of another be the
original cause of the undertaking.
So, if it be part of the agreement that the original debtor shall be
discharged, that is a sufficient consideration to support the under-
taking of another to pay the debt, and the agreement need not be in
writing: but if no such stipulation be made, and the original debt be
permitted to subsist, the undertaking is merely collateral, and the
agreement must be in writing.
So, where nothing more is stipulated for than an indulgence to the
debtor, or that an action commenced shall be stayed; the undertaking
of a third person to pay the debt is within the statute; for the ori-
ginal debt still continues, and the undertaking is but collateral.(q) (q) Wide t
*So, a verbal promise to pay the debt of another, and also tº do Šº.
Cs B, 127.
some other act, is void by the statute; the contract being entire, * 60.
Thus, in the case of Stephens v. Squire,(r) which was an action (r) 5 Mod.
of assumpsit to pay 10l. and costs. The facts were these : an action ; ; ;
had been brought against the defendant and two others; and the
cause was carried down to be tried at the assizes ; but the defen-
dant promised in consideration that the plaintiff would not prose-
cute the action, that he would pay 10l. and costs of suit. The ques-
tion was whether this was a void promise by the statiºte of frauds, it
not being in writing *
The court determined, that this could not be said to be a promise
for another person, but for the defendant’s own debt; and therefore
not within the statute, af
5%
of the Statute of Frauds upon Promises [PART I.
(s) 1 Wils.
ºw.
* 61
(#) 3 Burr.
1886. 2 Wils.
308. S. C.,
So, in the case of Read y. Nash,(s) the facts were these : Tuack,
the plaintiff’s testator, brought an action of assault and battery against
9ne Johnson. The cause being at issue, the record entered, and
just coming on to be tried, the defendant, Nash, being then present
in court, in consideration that Tuack would not proceed to trial, but
would withdraw his record, promised to pay Tuack 50l. and the costs
in that cause to be taxed fill the time of withdrawing the record, in
which taxation all such sums of money were to be allowed as Tuack
had paid and was liable to pay to his attorney and witnesses who at-
tended the trial, Tuack, relying upon this promise, did withdraw
his record, and no further proceeding was had in that cause. Tuack
being dead, Read, his executor, brought an action upon this special
promise, which was merely verbal, and not reduced into writing.
The case was twice argued at the bar; and, after time taken by
the court to consider it, Lee, Ch. J. delivered the opinion of the court
as follows:
“The single question is, whether this promise, which is confessed
‘‘ by the demurrer not to have been in writing, is within the statute
“ of frauds and perjuries P that is to say, whether it be a promise for
“ the debt, default, or miscarriage of another person : *And we
“ are all of opinion that it is not, but that it is an original promise, suf.
“ficient to found an assumpsit upon against Nash, and is a lien upon
“Nash, and upon him only. Johnson was not a debtor ; the cause
“was not tried ; he did not appear to be guilty of any default or mis-
“carriage; there might have been a verdict for him if the cause,
“ had been tried, for any thing we can tell ; he never was liable to
“ the particular debt, damages, or costs. The true difference is be-
“tween an original promise, and a collateral promise ; the first is
“out of the statute, the latter is not when it is to pay the debt of an-
* other, which was already contracted.”
So, in the case of Williams v. Leper,(t)the facts were as follows:
Taylor, a tenant of the plaintiff, being in arrear for rent, to the amount
of 45l. for three-quarters of a year, and insolvent, conveyed all his
effects for the benefit of his creditors. They employed Leper, the de-
fendant, as a broker, to sell the effects, who accordingly advertised a
sale. On the morning advertised for the sale, Williams, the landlord,
came to distrain the goods in the house. Leper having notice of the
plaintiff's intention to distrain them, promised to pay the arrear of
rent, if he would desist from distraining. Williams, on the faith of
this promise, accordingly desisted. At the trial, a verdict was found
for the plaintiff for 45l. ; but the question for the opinion of the court
was, whether this was such a special promise for the debt of another,
as was within the statute of frauds :
CHAP. IV.] to answer for the Debt, &c. of Another.
53
The counsel for the plaintiff contended that this statute only meant
to prevent parol promises, where there was no new consideration mo-
ving from the party making the promise to the party to whom it was
made : that the legislature did not mean to prevent direct underta-
kings, but only collateral ones, for the debt, default, or miscarriage of
others. Whereas here was a new consideration ; for the goods of
Leper, were, at the time of the promise, liable to the landlord’s dis-
tress. It was therefore, a direct undertaking for himself, and not for
another.—The plaintiff had a legal interest in these goods, prior to
the bill of sale, and was deprived by the defendant of an advantage,
which he could never have again. The property of the goods was
in Leper, as a trustee for the creditors, at the time when he made
this promise. *
*The counsel for the defendant insisted, that upon this declaration
coupled with the facts given in evidence, the plaintiff had no right to
recover this 45l. For the declaration expressly charged ‘ that Taylor
‘ was indebted to the plaintiff in 45l. for three-quarters of a year's
• rent, and that the defendant undertook to pay it;’ which was direct-
ly within the words of the statute of frauds. That Leper was in pos-
session of the goods of the tenant, who owed the plaintiff three-quar-
ters rent; and being about to sell them, the landlord came to distrain ''
for this rent in arrear; and Leper promised to pay it, if he would de-
sist from distraining. He promised absolutely to pay it, and not to
pay it out of the goods sold, or under any other restriction.
But Lord Mansfield, Ch. J. said, “the case has nothing to do with
“ the statute of frauds. The res gesta would entitle the plaintiff to
“his action against the defendant: The landlord had a legal pledge:
“He entered to distrain ; he had the pledge in his custody. The de-
“ fendant agreed, ‘ that the goods should be sold, and the plaintiff
“‘paid in the first place.” The goods were the fund: the question
“was not between Taylor and the plaintiff. The plaintiff had a lien
“on the goods. Leper was a trustee for all the creditors, and was
“obliged to pay the landlord, who had the prior lien: this has no-
“thing to do with the statute of frauds.” Wilmot and Yates, Jus-
tices were of opinion, that this was an original promise; and Mr. J.
.Aston said, “he, looked upon the goods to be the debtor; and that
“ Leper was not bound to pay the landlord more than the goods
“sold for, in case they had not sold for 45l. The goods were a fund
* between both: and on that foot he concurred.”
The principle upon which this case was determined was recognised
# 62
in Houlditch v. Milne.(u) It was an action of assumpsit for the repair (w) 3 Esp,
of carriages; and the facts in support of it were, that certain car- Rep. 86.
1iages which belonged to Mr. Copey, had been sent by the defendant
tº the plaintiff’s to be repaired, but the orders concerning them were
54
&f the Statute of Frauds upon Promises [PART I.
* 63
(w) 2 East,
325,
# 64
given by the defendant. One of the carriages had been brought by
Mr. Copey himself, and paid for by him; and the bill, which was the
object of the action, contained a charge for repairs done to this car-
riage, and was made out in the name of Copey. When the car-
riages were repaired, the defendant sent an order to pack them up,
and send them on board ship; the plaintiff upon this sent to him to
know who was to pay for them: the "defendant said he had sent
them, and he would pay for them. The carriages were afterwards
packed up and sent on board ship, and the bill was made out and de-
livered to the defendant; he desired time to look over it; and when
the plaintiff’s clerk called a second time, he said the charges appear-
ed very high ; but desired the clerk to call in a few days, and he
would settle it. Not having done so, the plaintiff’s attorney waited
upon him, when the defendant said, that he had been told that the bill
was a most exorbitant one, and a fit subject to refer. However, he
said, he had money to pay it, though he did not say, whether it was
his own or Copey’s. Upon these facts it was contended, on behalf of
the defendant, that this case was within the statute of frauds. But
Lord Eldon, Ch. J. before whom the cause was tried, said, “If a per-
“son obtained possession of a tenant’s goods on which the landlord
“had a right to distrain for rent, and he promised to pay the rent,
“ though it was clearly the debt of another, yet a note in writing was
“not necessary; that such a case appeared to apply precisely to the
“one before him—The plaintiff had to a certain extent a lien upon
“the carriages, which he parted with on the defendant’s promise
“to pay.”—His lordship therefore was of opinion that that circum-
stance took the case out the statute, and consequently that the de-
fendant was liable for the amount of the bill.
So, in the case of Castling v. Aubert,(v) where the following case was
stated for the opinion of the Court of King’s Bench.
The plaintiff was employed by one E. P. Grayson as his general
agent; and as an insurance broker, had effected for his use certain
policies of assurance mentioned in the declaration, of the value of
3,000l.; that the plaintiff was under acceptances for Grayson for bills
drawn by Grayson for his own accommodation; and that the plain-
tiffhad a lien on the said policies to indemnify himself against his said
acceptances. That a loss having happened on the policies of in-
surance, which the underwriters had agreed to pay, but which Grayson
could not receive without having the policies to produce, the plaintiff
was applied to, to give them up for that purpose to the defendant, into
whose hands Grayson had at that time transferred the management of
his insurance concerns. That some of the plaintiff’s said acceptances
for the use of Grayson being then “outstanding and unpaid, and par-
ticularly the bill for 1811, 18. mentioned in the declaration then in the .
CHAP. IV.] to answer for the Debt, &c. of Another.
55
hands of one Cator, upon which writs had been suéd out (though not
then executed) against Grayson as the drawer, and the plaintiff as ac-
ceptor; the plaintiff refused to deliver up the policies of assurance,
they being the only securities he had against his said acceptances,
without an indemnity; and that thereupon a meeting was held be-
tween the plaintiff and defendant and Grayson, at which it was ver-
bally agreed between the parties that the defendant should pay into
the hands of a banker 7121. 138. 6d., to answer in part certain other
acceptances of the plaintiff’s, exclusive of the bill for 181. 18.; and
that the plaintiff should provide 1411. 148. 6d. towards paying one
of his acceptances for 350l. ; and that the defendant should pay the
bill of 1811. 18. and the costs of the action which had been brought
thereupon against Grayson, amounting together to 2021.; and that
thereupon the said policies should be delivered up to the defendant.
That in pursuance of this agreement the defendant paid into the
banker’s hands 7121, 13s.6d. and the plaintiff delivered up the poli-
cies to the defendant. That the defendant received from the under-
writers the amount of other subscriptions on the policies so delivered
up to him by the plaintiff. That the defendant was afterwards call-
ed upon by the attorney of Cator to pay the said 2021, for the debt
and costs on the bill in Cator’s hands, but refused to do so; nor had
he paid it at the time this action was commenced; and that in con-
sequence of such refusal the plaintiff was arrested at the suit of Cator,
as acceptor of the said bill of exchange, and sustained damages there-
by to the amount found by the jury, viz. 25l. The question for the
opinion of the court was, whether the promise of the defendant to pay
the said 2021, due from Grayson for the said debt and costs, on hav-
ing the said policies of insurance delivered to him, was void under
the statute of frauds; or whether he were liable by reason of the
plaintiff’s parting with the possession of those policies upon which
the plaintiff had a lien, and which were so deposited with the de-
fendant? -
The court were of opinion, that this was not a promise for the debt
or default of another within the statute of frauds, but an original un-
dertaking.
Lord Ellenborough, Ch. J, said, “I am clearly of opinion, that this
“is neither an undertaking for the debt, default or miscarriage of
“ another within the statute. It could not be for the debt, but rather
“ for the credit of another; for when the promise was made, *no debt
“ was incurred from Grayson to the plaintiff; therefore, if at all with-
“ in the statute, it must be for the default or miscarriage of another.
“But see what the case is; the plaintiff, who was Grayson’s broker,
“had policies of insurance in his hands belonging to his principal,
“ which were securities on which he had a lien for the balance of his
“ account; and on the faith of these he agreed to accept bills for the
% 65
56 Of the Statute of Frauds upon Promises. [PART I.
“ accommodation of his principal. One of these bills became due, and
“ actions were brought against the plaintiff as acceptor, and against
* Grayson as drawer: and it was desirable that the policies should
“ be given up by the plaintiff to the defendant, in order to enable the
“ money for the losses incurred to be received from the underwriters;
“ the defendant undertaking, upon condition the policies were made
“over to him, to settlé the acceptances due, and to lodge money in a
“banker's hands for the satisfaction of the remainder, as they became
“ due. The defendant then procured from the plaintiff the securities
“upon the faith of this engagement; in entering into which he had
“not the discharge of Grayson principálly in his contemplation,
“but the discharge of himself. That was his moving consideration,
“ though the discharge of Grayson would eventually follow. It is
“rather therefore, a purchase of the securities which the plaintiff,
* held in his hands. This is quite beside the mischief provided against
“by the statute; which was, that persons should not by their own
“unvouched undertaking, without writing, charge themselves for the
* debt, default, or miscarriage of another. In the case of a bill of ex-
“change, for which several persons are liable, if it be agreed to be
“taken up and paid by one, eventually others may be discharged;
“ and the same objection might be made there; but the moving con-
“sideration is the discharge of the party himself, and not of the rest,
# “ though that also ensues. Upon the whole, therefore, I agree with
(6) Ante, 61." the decision in Williams v. Leper,(w) to the full extent of it: I agree
“with those of the judges who thought the case not within the statute
“ of frauds at all; and I also agree with the ground on which Mr.
“Justice ºffston proceeded, that the evidence sustains the count for
“ money had and received.”
(w) 1 New So, in the case of flnstey v. Marden,(w) which was an action of as.
*::: C. B. sumpsit tried before Sir James Mansfield, Ch. J. and; upon the trial,
it appeared in evidence, that the defendant being in distressed circum-
stances, the plaintiff and three other creditors “of the defendant met,
# 66 and finding that he could only pay 7s. 6d. in the pound; they came to
an agreement to accept from one T. Weston, the defendant’s father-
in-law, 108. in the pound, in satisfaction of the debts due to them from
the defendant, and to assign those debts to the said T. Weston; and
an agreement was accordingly prepared for that purpose: The three
other creditors signed this agreement, and received their respective
sums of money, to the amount of 10s. in the pound from T. Weston,
and the plaintiff at one time authorised Greenwood (one of the three
creditors who signed) to sign for him when he signed for himself; but
Greenwood having omitted so to do, the plaintiff revoked his authori-
ty, and refused to execute the agreement; or accept the 108. in the
pound on his debt. On behalf of the plaintiff it was objected, that
Weston's undertaking to pay 10s. in the pound in discharge of the de-
CHAP. IV.] to answer for the Debt, &c. of Another.
fendant’s debt was void by the statute of frauds, no agreement by
which Weston could be charged having beed signed by him, and there-
fore the plaintiff’s undertaking to accept 10s. in the pound was nudum
pactum. But the Chief Justice ruled that the undertaking of Wes-
ton was not within the statute of frauds, being an undertaking to pay
a debt of a new description, viz. 10s. in the pound in consideration of
Marden being discharged, and not an undertaking to pay the debt of
Marden. Accordingly a verdict was found for the defendant, who
had paid into court the amount of the 108. in the pound on the plain-
tiffs debt. And the Court of Common Pleas afterwards, upon a rule
to shew cause why there should not be a new trial, confirmed his
Lordship’s opinion, and determined, that this agreement was not
within the statute; it not being a collatteral promise to pay the debt
of another, but an original contract to purchase the debts.
Sir James Mansfield, Ch. J. said, “At the trial of this cause, It
“ was objected on the part of the plaintiff, that the promise by Weston
“was a promise within the statute of frauds, and therefore no bar
“to the plaintiff’s demand. It appeared to me doubtful how far the
“promise in this case could be deemed to be within the statute; and
“it rather struck me that being a promise to pay only 10s. in the
“pound, and not to pay the whole debt, it was an original agreement,
“ and therefore was not within the statute. I did not see how one
“person could undertake for the debt of another, when the debt for
“ which he was supposed to undertake, was discharged by the very
“bargain. No cases, however, were at that time cited. We have
“now been considering all the circumstances of the case *and the
“ question is, whether justice will not be done by not allowing the
“plaintiff to take more than what the strictest rule of law will en-
“ title him to ? The facts were shortly these. The defendant was
“upon a brink of a bankruptcy; some of his creditors met to consi-
“der what should be done, and his effects being found only sufficient
“to pay 78. 6d. in the pound, the creditors agreed to accept 10s. in
“the pound from Weston in full satisfaction of their debts, and under-
“took to assign their debts to him. The only object of the deed was
“ the assignment of the debts; and Weston was to pay 10s. in the
“ pound as the price of those debts. After this the plaintiff went
“out of town, and some of the creditors accepted 10s. in the pound,
“ and assigned their debts to Weston. The plaintiff thought proper,
“first to deny his agreement, and then to insist on his right to change
“his mind and refuse to execute the deed. He had a right to change
“his mind, but in point of morality and sound honesty his conduct
“was extremely bad. It was equivalent to obtaining a promise from
“Marden privately for payment of the whole debt, after agreeing
“with the rest of the creditors, to take a part only. He now comes
“here to set aside the verdict, in order to put into his pocket the
Wol. I. [8]
# 67
58
Of the Statute of Frauds upon Promises. [PART I.
(a) Post, 70.
%: 68
4 Johns. Rep,
422.
(y) 2 Wils.
94. Stra.873.
S. P.
12 Johns.
Rep. 291.
(3) 1 Wils.
205. et ante,
60.
* other part of the debt for his own benefit, to which Weston is enti-
“tled. Supposing the promise by Weston to be a good promise in
“law the plaintiff cannot recover the original debt due from the de-
“fendant to himself, inasmuch as he has agreed to accept 10s. in the
“pound in satisfaction of that debt, and to assign it to Weston, who
“is contented with the verdict. The plaintiff has clearly been guilty
“of very harsh treatment towards the defendant; and I do not think
“the court called upon to alter the verdict, as a favour to him. He
“has acted altogether contrary to honour and justice, and I think the
“verdict ought to stand. I would not have it supposed that I mean
“to throw any doubt upon the decisions which have been cited re-
“specting the statute of frauds. The case of Chater v. Beckett.(a)
* certainly decidés that a mere promise, such as that before us, would
“be within the statute; and indeed, upon general principles, no one
“can wish to restrain the operation of the statute of frauds. The
“benefits of that statute are much more apparent to those who are
“conversant with the practice of the court of Chancery, than those
“who have only seen the practice of the courts of common law. But
“upon the whole, it appears to me, that the agreement by Weston
“amounted to a purchase of the *plaintiff’s debt, and that this appli-
“cation for a new trial ought not to be granted.”
But, a promise to pay the debt of a third person in consideration of
forbearance only, is within the statute, and must therefore be in
writing.
Thus, in the case of Fish v. Hutchinson,(y) which was an action of
assumpsit, the plaintiff declared, that whereas one Vickars was in-
debted to him in a certain sum of money, and had commenced an ac-
tion for the same ; the defendant in consideration that the plaintiff
would stay his action against Vickars promised to pay plaintiff the
money owing to him by Vickars. To this there was a demurrer and
joinder in demurrer.
For the defendant it was insisted, that this being a promise to
pay the debt of another person, was void by the statute of frauds
and perjuries. -
In was answered for the plaintiff, that this was an original contract
between the plaintiff and defendant, so not within the statute; and
the case of Read v. Wash,(2) was cited as in point.
But per totam Curiam. “ This case at bar is very clearly within
“the statute, for here is a debt of another person still subsisting, and
“a promise to pay it : and it is not like the case of Read v. Wash,
“for that was an action of assault and battery brought,by the plaintiff’s
“testator against one Johnson ; the cause was at issue, the record
“of nisi prius entered, and just coming on to be tried, when the de-
CHAP. IV.] to answer for the Debt, &c. of Another.
59
“fendant, Nash, being present in court in consideration that plaintiff’s
“testator would not proceed to try his cause, but would withdraw
“his record, promised to pay him 50l. and costs to be taxed in that
“suit; so in that case there was no debt of another, it being an ac-
“tion of battery, and it could not be known before trial whether the
“plaintiff would recover any damages or not ; but in the present
“case here is a debt of another still subsisting, and a promise to
“pay it.”
So, a promise by the indorser of a dishonoured note, to indemnify
the holder if he will proceed to enforce the payment against the other
parties thereon, must be in writing, otherwise it is void.
*Thus, in the case of Winckworh v. Mills,(a) which was an action
% 69
of assumpsit for money paid, laid out, and expended to the defen- (a)2 Esp.
dant’s use, with a count against him as indorser of a promissory
note ; the report states, that the plaintiff was indorsee of one Brough,
who was the indorsee of the defendant, who was himself the indorsee
of Taylor and son, of a promissory note drawn by one Sharp in favour
of Taylor and son, for 60l. payable three months after date at Tay-
lor’s house. When the note became due, the plaintiff’s clerk cal-
led for payment of it at Taylor’s house, but by mistake left it be-
hind ; he immediately returned and informed Taylor and son of the
circumstance, and demanded the note, but they denied having it, and
it was considered as lost,
The plaintiff and Brough immediately waited on the defendant,
and informed him of the circumstance. Whereupon he furnished
them with a copy of the note, and promised if they would endeavour
to recover the amount of it from Taylor and son, or from Sharp, that
he would indemnify them. They applied to Sharp, whom they
found was a man of no substance. They afterwards applied to Tay-
lor and son, and they on being threatened paid 30l. in part and gave a
new security by a note for the remaining 30l. But this last note not
being paid when due, an action was brought on it against Taylor and
son, and a judgment obtained by default; they, however, brought a
writ of error on the judgment, and then became bankrupts. Upon
this Winckworth, the plaintiff, brought this action to recover from
Mills, the defendant, the expences he had been put to in endeavour-
ing to recover the money from Taylor and son, on Mills' promise of
indemnifying him, and added a count against him as indorser of the
original note,
Lord Kenyon asked if there had been any note in writing from Mills
to the plaintiff, promising to indemnify him in the manner stated.
He was answered in the negative; but it was contended that it was
t
Rep. 484.
60 Of the Statute of Frauds upon Promises [PART I.
not necessary, Mills, the defendant, being himself a party to the note,
and to be benefited by the proceedings against Taylor.
His Lordship then added, “that he was of opinion the action could
“not be supported, to recover that part of the demand claimed under
# 70 “the promise of indemnity, that it was a promise *for the debt and
“default of another, and so could not, under the statute of frauds, be
“maintained without a note in writing; but as to the unpaid part of
“the original note, the plaintiff was entitled to recover it.”
So, a parol promise to pay the debt of another, and also to do some
other act, is void by the statute ; the contract being entire.
(b) 7 Term Thus, in the case of Chater v. Beckett,(b) which was an action of
§ºo, tº assumpsit on a special agreement, and for money paid, tried before
v. Tombs, Lord Kenyon. At the trial, the plaintiff’s counsel stated, that the
* *... facts of the case were these: that the plaintiff, who had struck a dock-
i. m.a.ſ..." et against J. Harris, was induced not to prosecute the commission of
bankrupt, but to sue him at law for the recovery of his debt, and hav-
ing sued out a writ against him, some of Harris’s creditors were anx-
ious to take a composition for their debts, provided all of them would
agree to it; and to effect this scheme the plaintiff called several meet-
ings of Harris’s creditors, at the last of which a composition of 10s.
in the pound was proposed, which all the creditors, except the plain-
tiff, consented to take : but as the plaintiff had been put to great ex-
penses, in striking the docket against Harris, suing out a writ, and
calling the creditors together, he would not agree to take that compo-
sition unless those expenses were also paid, in consequence of which
the defendant promised to pay those expenses, and to accept bills
drawn by the plaintiff on him to the amount of the composition. The
plaintiff accordingly drew bills on the defendant to that amount, which
the latter accepted and paid : but the defendant refusing to pay the
plaintiff’s expenses, amounting to 201. 13s. the plaintiff paid them to
the attorney, and brought this action to recover the same from the de-
fendant on his undertaking. But this undertaking not being in writ-
ing, Lord Kenyon was of opinion, that the case came within the stat-
ute of frauds, and nonsuited the plaintiff on his opening; referring to
the case of Read v, Wash.(...)
A rule nisi was afterwards obtained to set aside the nonsuit; and
# 71 when the case was called on, the plaintiff’s counsel said, “that even
though this were a case within the statute of frauds, the plaintiff
might recover on the general count for money paid to the use of the
defendant.
wº- w-r- --- ºr ----ºur-
(*) 1 Wils, 305. et ante, 60.
GHAP. IV.] to answer for the Debt, &c. of Another. 61
But the court were of opinion against the plaintiff on both points,
and aecided that the case was within the statute.
Lord Kenyon, Ch. J. said, “When this cause came on to be tried, I
“ referred to the case of Read v. Nash, to shew that this was a case
“ within the statute of frauds: and though the court ruled that that
“ case itself was not within the statute, what was said by Lord Chief
“Justice Lee is decisive to show that this promise is void by the stat-
“ute. That was an action not founded on any debt, but for an as-
“sault; and he said “Johnson was not a debtor: the cause was not
“‘ tried: he did not appear to be guilty of any default or miscarriage;
“‘ there might have been a verdict for him, if the cause had been
“‘ tried ; he never was liable to the particular debt, damages, or
“ costs.” Whereas in this case Harris was indebted to the plaintiff,
“ and the defendant undertook to pay part of that debt, and to pay
“ certain other expenses. The promise therefore was certainly void
“in part by the statute; and the agreement being entire, the plaintiff
“ cannot now separate it, and recover on one part of the agreement,
“ the other being void. And if that agreement be void, there is an
“ end of the case; for where there is an express promise, another
“promise cannot be implied. I lament extremely that exceptions
“were ever introduced in construing the statute of frauds; it is a
“very beneficial statute, and if the courts had at first abided by the
“strict letter of the act, it would have prevented a multitude of suits
“ that have since been brought.”
Lawrence, J. said, “It is clear that the plaintiff cannot recover on the
“special counts. Then the question is, whether on the transaction,
“as stated, he can support the general count for money paid to the
“ use of the defendant? The defendant’s was not a promise to pay
“ the attorney, but to pay the plaintiff the expenses that he had in-
“ curred : but the plaintiff was originally liable to pay these expenses
“ to his own attorney; and when he paid them, he only paid his own
“ debt; therefore this cannot be considered as money paid to the use
“ of the defendant.”
It should be observed, that in all those cases which come within
that part of the statute we have now been considering, the “considera-
tion, as well as the promise, must be stated in the agreement, other-
wise it will be void.(c) *
# 72
(c) Wide post,
tit. in what
[Where A. applied to B. for goods on credit, but was refused with-º
•º o º * consideration
out previous security for the payment, upon which A. made his pro-must be stat.
missory note for the amount as follows: “Nov. 9, 1808. For valueted.
received, I promise to pay Norman Leonard 500 dollars, in 60 days
|
62
Of the Statute of Frauds upon Promises [PART I.
from date, per me, Moses Johnson.” Under which C. wrote, “I
guaranty the above;” this was held a collateral undertaking, within
the purview of the statute of frauds ; but that there was no necessity
of any distinct consideration, as the words value received in the note
were sufficient evidence of a consideration. Leonard v. Vredenburgh,
8 Johns. Rep. 2nd. ed. 23. Kent, C.J. said, “A mere naked promise
“to pay the already existing debt of another, without any conside-
“ration, is void. But in the present case, (as the plaintiff offered to
“show) the promise was made at the time of the original negotiation
“between the plaintiff and Johnson. It was incorporated with that
“contract, and became an essential branch of it. The whole was
“one single bargain, and the want of consideration, as between the
“plaintiff and defendant, cannot be alleged. If there was a conside-
“ration for the entire agreement, (and Johnson’s note purporting to
“be given for value received, was evidence of it,) that consideration
“was the aliment for the defendant’s promise. This is the amount
“of the doctrine in Kirkby v. Coles ; (Cro. Eliz. 137) and it is al-
“luded to in Tomlinson v. Gill, (4mb. 330.) and Williams v. Leper;
“ (3 Burr. 1886) and to this extent I can understand the observa-
“tion of Lord Eldon, (14 Vesey 190.) when he observes, that, “the un-
“‘dertaking of one man for the debt of another, dees not require a
“consideration moving between them.” In Wain v. Warlters, (5
“East, 20) the promise of the defendant was not made at the time,
“nor did it form a part of the original contract between the creditor
“ and the third person. . It was made long after the debt had been
“created, and, therefore, in that case, the promise required some-
“thing more to support it than the mere fact of the liability of the
“person for whom the defendant assumed. That fact alone would
“have left the promise a nude pact. It required, at least, the con-
“sideration of forbearance, or some other consideration, arising out
“ of, and founded upon the original liability. The same remark ap-
“plies to the case of Sears v. Brink, (3 Johns. 210.) But if a pro-
“mise to pay the debt of another be founded on a new and distinct
“consideration, independant of the debt, and one moving between
“ the parties to the new promise, it is not a case within the statute.
“It is considered in the light of an original promise. The cases of
“Tomlinson v. Gill, and Williams v. Leper, proceed upon this dis-
“ tinction, and the point is too clearly settled to be questioned.” (Ro-
berts on frauds, 232 to 237.)
“There are, then, three distinct classes of cases on this subject,
“ which require to be discriminated ; 1. Cases in which the guaranty
“ or promise is collateral to the principal contract, but is made at the
“ same time, and becomes an essential ground of the credit given to
“ the principal or direct debtor. Here, as we have already seen, is
“ not, nor need be, any other consideration, than that moving between
CHAP. IV.] to answer for the Debt, &c. of Another.
63
“ the creditor and original debtor. 2. Cases in which the collateral
“undertaking is subsequent to the creation of the debt, and was not
“ the inducement to it, though the subsisting liability is the ground of
“ the promise, without any distinct and unconnected inducement.
“Here must be some further consideration shewn, having an immedi-
“ate respect to such liability, for the consideration for the original
“ debt will not attach to this subsequent promise. The cases of Fish
“ v. Hutchinson, (2 Wils. 94.) of Charter v. Becket, (7 Term Rep.
“201) and of Wain v. Warlters, (5 East, 20) are samples of this
“class of cases. 3. A third class of cases, and to which I have al-
“ready alluded, is when the promise to pay the debt of another, aris-
“es out of some new and original consideration of benefit or harm
“moving between the newly contracting parties.
“The two first classes of cases are within the statute of frauds, but
“ the last is not. (1 Saund. 211. note 2.) The case before us belongs
“ to the first class ; and if there was ne consideration other than the
“ original transaction, the plaintiff ought to have been permitted to
“show that fact, if necessary, by parol proof; and the decision
“in Wain v. Warlters did not stand in the way. The whole agree-
“ment between the plaintiff and defendant, consisted in the promise
“ to guaranty the debt of Johnson. To say that the promise is void,
“for want of disclosing a consideration, is assuming what the plaintiff
“offered to show ought not to be assumed, for there was no distinct
“ consideration passing between the plaintiff and the defendant. John-
“son's note given for value received and, of course, importing a con-
“ sideration on its face, was all the consideration requisite to be shown.
• The paper disclosed that the defendant guarantied this debt of
“Johnson; and if it was all one transaction, the value received was
“ evidence of a consideration embracing both the promises. The wri-
“ting imported, upon the face of it,one original and entire transaction;
“ for a guaranty of a contractimplies, ea, vi termini,that it was a con-
“ current act, and part of the original agreement. In Stadt v. Lill (9
* East,348) the defendant gave a guaranty in this form : ‘I guaranty
“ the payment of any goods which Stadt delivers to Nichols;” and
“ the K. B. held that ‘ the stipulated delivery of the goods to Nichols
“ was a consideration appearing on the face of the writing, and when
“ the delivery took place the consideration attached.” The writing
“in the present case was of equivalent import and effeº. Instead of
“ saying that he guarantied the payment of goods delivered to John-
“ son, the defendant guarantied the payment of the value received by
“ Johnson.”]
64 * Of the Statute of Frauds upon Promises [PART I.
3. Of Promises in consideration of Marriage.
In the next branch of the fourth clause of the statute of frauds, it is
enaeted, that no action shall be brought whereby to charge any person
upon any agreement made upon consideration of marriage, unless the
agreement upon which such action shall be brought, or some memo-
randum or note thereof, shall be in writing, and signed by the party to
be charged therewith, or some other person thereunto by him lawfully
authorised.
Very soon after the passing of the actitwas holden, that this branch
of it extended as well to mutual promises to marry, as to an agreement
in consideration of marriage.
(d) 3 Lev.65. Thus, in the case of Philpott v. Wallet,(d) which was an action of
assumpsit, in consideration that the plaintiff, at the request of the de-
fendant, would consent to take him to be her husband, the defendant
promised to take her to be his wife ; and that the plaintiff was ready,
and offered to take the defendant to be her husband, but he refused.
This promise was made without any writing; it was therefore con-
tended that it was void by the statute; but it was answered, that this
was no promise within the statute, which was only intended of prom-
ises for payment of money upon marriages, and not of promises to mar-
ry.
But the courtresolved, that this promise is directly within the words
and not out of the intent of the statute ; because the promise is, that
in consideration the one would marry the other, the other would mar-
ry him, and therefore it is a promise in consideration of marriage.
This construction of the statute, however, was afterwards much
(e) Wide Ld. doubted, and in some cases denied ;(e) and it is now finally settled,
Ráym, 387, that mutual promises to marry need not be in writing by the statute of
frauds. - -
# 73 *Thus, in the case of Cork v. Baker,(f) the plaintiff declared, that
(f) Stra. 34, in consideration she promised to marry the defendant, he promised to
marry her at his father’s death, who was since dead, but the defendant,
refused so to do, and had afterwards married fl. B.
The defendant moved in arrest of judgment, that this parol promise
was not good in law. But, after argument, it was held, that this was
not within the statute of fratids and perjuries, which relates only to con-
CHAP, IV.] a Contract *u. of Lands, &c.
65
sº
tracts in consideration of marriage; and that the ease in 3. Lev. 411.(g)
had been contradicted by later resolutions.
A parol agreement to pay money, or make a settlement in considera-
tion of marriage, if not reduced into writing, previous to the marriage,
is void ; and a subsequent marriage is not a part execution of such an
fgreement to take it out of the statute. But, a subsequent marriage and
settlement has been held sufficient to prevent the statute operating upon
such parol promise.(h) |
[Nor will a written recognition, after the marriage, of a parol prom-
ise before marriage take the case out of the statute. Randall v. Mor-
gan, 12 Wes. 73.; but see Hodgson v. Hutchinson, Vin. Abr. tit. Con-
tract and agreement, (H) Ca. 34.]
Letters from parents, or persons in loco parentis, containing prom-
ises of provisions, have been a frequent subject of adjudication, and
wherever they have been explicit in their terms, and the subject mat-
ter of the promise has been reduced to sufficient certainty, they have
been held to satisfy the statute. Thus, in a case determined a very
few years after the statute was passed, where a father wrote a letter,
signifying his assent to the marriage of his daughter with J. S. and
(g) This must
be intended
for 3 Lev. 65,
the case in 3
Lev. 411. bes
ing upon mar-
riage broc-
age bonds and
not at all rea
lating to the
statute of
frauds,
(h) JMonta-
cute v. JMaza
twell, 1 P.
Wms. 613.
Stra. 236, Š.
C. See also
1 Wes. jun.
199.4 East,
201,
that he would give her 1,500l., and afterwards, by another letter, upon -
a further treaty concerning the said marriage, went back from the
proposals of his first letter ; and again, at some time after, declared
that he would agree to what was proposed in his first letter : the let-
ter was held a sufficient promise in writing, within the statute of
frauds, and that the last declaration had set up the terms of the first
letter again.(?) -
But, in the case of flyliffe v. Tracy,(k) where it is stated that the
plaintiff courted one of the daughters of Sir Thomas Hazlewood, *and
treated with the father about the marriage; the father consented to
the marriage, and wrote a letter to his daughter, intimating that he had
met the plaintiff, Mr. Ayliffe, and had agreed to give him as a portion
3,000l. which the plaintiff (he said) seemed fully to assent to,
that they were to meet the next day, when the affair was to be fully
concluded ; and he subscribed his name to the letter.
Accordingly they met, and agreed to the marriage, and the father
gave money to the daughter to buy her wedding-clothes, and the wed.
ding-day having been appointed, the father died before that day, hav-
ing made his will long before this treaty of marriage, and given his
daughter only 2,000l. ,
#. daughter did not show this letter to the plaintiff, her intended
husband, whom she afterwards married, and the 2,000l. legacy was
paid to the plaintiff, the husband; but he did not, neither was he re-
Woh. R. [9]
and
(i) Wide à
Went. 361,
Prec. Chan,
560. 2 Vern,
200. 202,
(k) 2 P.
Wms. 65.
This case is
very differ-
ently stated
in 9 MBd. 3,
# 74
66 of the Statute ºauds upon [PART I.
quired to make any settlement on his wife, but was a merchant and
freeman of London.
(l) JMaccles-
tfield. The Lord chancellor(l) said, “This being no more than a communi-
“cation, has no ingredient of equity; the husband made no settle-
“ment; he did not know of this letter, it being wrote to the daugh-
“ter, and therefore cannot be supposed to have married in conse-
“quence of the letter.
“Then he accepted of the 2,000l. legacy as the portion, and at
$6. *. * demanded no more, and the other daughter had but
“ 1,500l.
But, where 4. by letter promises to give such a fortune with his
daughter to B., and B. marries the daughter on the encouragement
of this letter ; this is sufficient to bring the agreement out of the
statute of frauds; and B, shall recover, because the agreement is exe-
(m) 2 Eq. cuted on his part as far as it can be, and can never be undone af-
Cas. Abr. 49. ter.(m) *
See also 2
Vern. 322. 1 w
Wez. 297. [The letter must state the terms of the agreement, or refer to some
written instrumentin which the terms are set forth. 3 Johns. Reps
211, 1 Johns. Cha. Rep. 280.4 Mumf 77.]
*
# 75 *4. Of a Contract or Sale of Lands, &c.
In another branch of the fourth section of the statute it is enacted,
“that no action shall be brought to charge any person upon any con-
“tract or sale of lands, ten ements, or hereditaments, or any interest
“in or concerning them unless the agreement upon which such action
“shall be brought, or some memorandum or note thereof, shall be in
“writing, and signed by the party to be charged therewith, or some
“other person thereunto by him lawfully authorised.”
[“..Any contract or sale of lands,” &c. was probably at first mis-
printed or mis-written, instead of “any contract for the sale of lands,”
&c.—Boyd v. Ston, 11 Mass. Rep. 346.]
% #:. Upon this part of the statute it is said, (n) that Treby, Ch. J. re-
6 East, 603. ported to the other justices of the Common Pleas, that it was a ques-
***) ion before him at a trial at nisi prius at Guildhall, whether the sale
of timber growing upon the land ought to be in writing by the statute
of frauds, or might be by parol 2 And he was of opinion, and gave
the rule accordingly, that it might be by parol, because it is but a bare
chattel. And to this epinion Powell, Justice, agreed.

CHAP. IV.] a Contract or Sale of Lands, &c.
67
So, in the case of Poulter v. Killingbeek, (o) which was an action (
Pull. 397.
of indebitatus assumpsit. The first count of the declaration was “for
“ 20l. for the moieties of divers crops of wheat, and cole-seed, by the
“plaintiff before that time sold to the defendant, and by the defend-
“ant, in consequence of such sale before then had, reaped and taken
* to and for his own use and benefit.” The second count was on a
quantum meruit, “for that the plaintiff had permitted and suffered
“ the defendant to depasture, eat up, and consume with his cattle
“ the moiety of a certain other crop of cole-seed,” There was also
a count for money had and received,
The cause was tried before ºffshhurst, Justice, and it appeared that
the plaintiff being possessed of certain pieces offen-land, which he
was desirous of having put into a state of cultivation, made a verbal
declaration to let them to the defendant without rent, who was to
plough, dress, and sow them for two successive crops, and in lieu of
rent, to allow the plaintiff a moiety of the crops. While the crops
of the second year were on the ground, an *appraisement of them
was taken for both parties, and the value ascertained. The defen-
dant having afterwards refused to pay a moiety of the value, this ac-
tion was brought. It was contended at the trial, that a special agree-
ment for a moiety of the crops having been proved, this action of in-
debitatus assumpsit, for a moiety of the value, could not be suppor-
ted ; and also that the agreement itself was within the statute of
frauds; first, because it related to land ; and secondly, because it
was not to be executed within a year; and that it ought therefore
to have been in writing. A verdict was found for the plaintiff sub-
ject to the opinion of the court on the first objection,
Eyre, Ch.J. said, “The circumstance of the appraisement seems
“ to put an end to this point : It is true that as the case originally
“ stood, the plaintiff had a claim to a moiety of the produce of the
“ land under a special agreement: but that special agreement was
“executed by the appraisement. It had been agreed that the moiety
“of the crops was the property of the plaintiff; but he being willing
“that the defendant should keep them, a surveyor was appointed to
“settle the price between them. The circumstance of the appraise-
“ment affords clear proof that the plaintiff sold what the defendant
“ had agreed was his ; and the price being ascertained, brings this to
“ the case of an action for goods sold and delivered. It is unneces-
“sary to state a special agreement, which has been executed, where
“ the action arises out of something collateral to it.”
[So, in Griffith v. Young, 12 East, 513–A tenant having agreed
with his landlady that if she would accept another for her tenant in
his place, (he being restrained from assigning the lease without her
f
0) 1 Bos, &
* 76
Of the Statute of frauds upon [PART I,
# 7;
consent) he would pay her 40l. out of 100l. which he was to receive
for the good will, if her consent were obtained ; and having received
the 100l. from the new tenant, who was cognisant of this agreement ;
is liable to the landlady in an action for money had and received for
her use ; the consideration being executed, and therefore the case
being taken out of the statute of frauds, as a contract for an interest
in land. - 3. *.
Lord Ellenborough, C. J. “I have no doubt that it would be within
“the statute if the contract were executory ; but when the contract
“is executed, and money has actually been paid by the succeeding
“tenant to the defendant in trust to be paid over by him to the plain-
“tiff, he cannot be permitted to gainsay his having it for her use.
y The question was wholly collateral to the statute of frauds.”]
Buller, J. “If no appraisement had taken place, the objection to
“the action in this form must have prevailed. But that circumstance
“is decisive. With respect to the point made at the trial, on the
“statute of frauds, this agreement does not relate to any interest in
“the land, which remains altogether unaltered by the arrangement
* concerning the crops.” --
But a contract with the owner of a close for the purchase of a
growing crop of grass to be mown and made into hay by the vendee,
if not in writing, is within the statute.
Thus, in the case of Crosby v. Wadsworth,(p) which was an ac-
tion of trespass. At the trial a verdict was found for the plaintiff,
*subject to the opinion of the court onthe following case. The decla-
ration stated, that the defendant on the 9th of July, 1804, and on di-
vers other days, &c, with force and arms broke and entered a certain
close whereof the said plaintiff was then lawfully possessed, and cut
down the plaintiff’s grass, then growing in the said close, and also
took and carried away the same, and also the plaintiff’s hay then be-
ing on the said close, and disposed thereof to his own use. The facts
were that on the 6th of June 1804, the plaintiff agreed by parol, with
the defendant for the purchase of a standing crop of mowing grass
then growing in a close of the defendant’s, for 20 guineas. The grass
was to be mowed and made into hay by the plaintiff; but the parties
did not absolutely fix upon any time at which the mowing was to be
begun, No earnest was given, nor, was any note, memorandum, or
writing, signed by either of the parties or by any person on their be-
half, nor was possession of the close given to the plaintiff, but was
retained by the defendant. On the 2d of July the defendant told the
(p) 6 East, 602. See also Waddington & al. v. Bristow, 2 Bos. and Pull.
452, Et vide post, Chap. V. where it was held, that a sale of hops not gath:
ared, is not within the sexception of, the stamp act relating to agreements foſſ
the sale of any goods, wares and merchandiges, --- -- -
CHAP. IV.] a Contract or Sale of Lands, &c.
69
plaintiff he should not have the grass; and afterwards on that day,
sold it to W. Carver for 25 guineas. The plaintiff on the 12th of
July tendered to the defendant 20 guineas for the crop, which the de-
fendant refused to accept. The plaintiff went next morning to the
defendant’s close, and finding the gate unlocked, sent in a person to
mow the grass, who cut near half of the close. On the evening of
the 15th the defendant brought a letter from his attorney to the plain-
tiff, forbidding him to enter the close, and discharging him from mow-
ing the grass. A lock was then fixed upon the gate by the defendant,
and Carver, by his directions, carried away the grass which had been
mowed, and afterwards cut and carried away the remainder of the
crop. The question for the opinion of the court was, whether the
plaintiff were entitled to recover. .
After the case had been fully argued, and the court had taken time
to consider it, Lord Ellenborough, Ch. J. delivered the opinion of the
court as follows: :
“As the plaintiff appears to have been entitled(if entitled at all under
“ the agreement stated) to the exclusive enjoyment of the crop grow-
“ing on the land during the proper period of its full growth, and un-
“ til it was cut and carried away, he might in respect of such exclu-
“sive right maintain trespass against any persons doing the act com-
“ plained of in violation thereof. This brings us to “the question,
“whether the plaintiff had under the agreement and circumstances
“ stated any legal title to this growing crop at the time when the in-
“jury complained of was done; or whether his supposed title there-
“ to was not wholly void ; as being created by parol, under any, and
“ which of the provisions in the statute of frauds, or on any, and what
“ other account? And in the outset I feel myself warranted in lay-
“ing wholly out of the case the provision contained in the 17th sec-
“tion of this statute as not applicable to the subject-matter of this
“ agreement, which cannot be considered in any proper sense of the
“words as a sale of goods, wares, or merchandizes ; the crop being
“ at the time of the bargain, (and with reference to which time I agree
.* with Mr. Justice Heath in Waddington and Bristow, 2 Bos. and
“Pull. 452. that the subject matter must be taken,) an unsevered por-
“tion of the freehold, and not moveable goods or personal chattels. The
“ next question then is, is it a “lease, estate, interest of freehold or term
“ of years, or an uncertain interest of, in, to, or out of lands, created
“‘by parol,’ within the meaning of the first section, so as to be void as
“not having been put in writing 2 I think, collecting the meaning of
“ the first by aid derived from the language and terms of the second
“ section, “and the exception therein contained, that the leases, &c.
“‘meant to be vacated by the first section must be understood as
; : leases of the like kind with those in the second section,” but which
# 78
ro
of the Statute of Frauds upon [PART I.
* 19
(p) Ante, 75.
“conveyed a larger interest to the party than for a term of three years,
“ and such also as were made under a rent reserved thereupon ; neither
* of which circumstances are to be found in this agreement for the
“growing crop. Supposing it, therefore, on this construction of the
“statute, not vacated as a lease, &c. under the first section, it then
“comes to be considered under the fourth section of the act, whether
“this purchase of the growing crop be ‘a contract or sale of lands,
“‘tenements, or hereditaments, or any interest in or concerning
“‘them P and if it be so, then whether this action of trespass be an
“‘action brought to charge the defendant on such contract or sale,”
“within the meaning of the statute Upon the first of these ques-
“tions, I think that the agreement stated, conferring, as it professes
“to do, an exclusive right to the vesture of the land during a limited
“ time and for given purposes, is a contract or sale of an interest in,
“ or at least, an interest concerning lands. But the statute does not
“expressly and immediately vacate such contracts, if made by pa-
“rol; it only precludes the bringing of actions to enforce them by charg-
“ing the “contracting party or his representatives, on the ground
“ofsuch contract and of some supposed breach thereof; which descrip-
“tion of action does not properly apply to the one brought, viz. a mere
“general action of trespass, complaining of an injury to the possession
“ of the plaintiff, however acquired, by contract or otherwise. But
“although the contract for this interest in or concerning land may not
“be in itself wholly void under the statute, merely on account of its
“being by parol; so that if the same had been executed the parties
“could have treated it as a nullity; yet, being executory, and as for
“ the non-performance of it no action could have been by the provis-
“ions of the fourth section maintained, we think it might be dischar-
“ged before anything was done under it which could amount to a
“ part execution of it. And this discharge, unfortunately for the
“ plaintiff, appears to have been given in the present instance, on the
“ 2d July, by the countermand and refusal of the defendant of that
“ date, before the plaintiff had done any one act towards carrying the
“ agreement into effect. On this latter ground, therefore, viz. that
“ this parol executory contract, supposing it to have been otherwise
“valid, was competently discharged by parol, we feel ourselves oblig-
“ed to say that the plaintiff is not entitled to recover. The case
“ suggested at the close of the argument of Poultyr v. Killingbeck,(p)
“ has no material application in favour of the plaintiff. It
“ was there objected that the agreement was within the statute of
“frauds, first, as relating to land; secondly, as not being to be exe-
“ cuted within a year. As to the first objection, the contract, if it
“had originally concerned an interest in land, after the agreed sub-
“stitution of pecuniary value for specific produce no longer did so ; it.
“ was originally an agreement to render what should have become a
“chattel, i. e. part of a severed crop in that shape in lieu of rent and
CHAP. IV.] a Contract or Sale of Lands, &c. 7i.
“by a subsequent agreement it was changed to money instead of re-
“ maining a specific render of produce. So that one wonders rather
“how it should ever have been thought an interest in land, than that
“it should have been decided not to be so. The subsequent agree-
“ment relieved the case also from the second objection.”
[In the case of Parker v. Staniland, 11 East, 362, it was decided
that a contract for a crop of potatoes in a matured state of growth,
and then ready to be taken and to be dug out of the ground immedi-
ately, was not a contract for any interest in land within the fourth
section of the statute of frauds. -
Lord Ellenborough Ch.J. observing. “The contract here was con-
“fined to the sale of the potatoes, and nothing else was in the con-
“templation of the parties. It is probable that in the course of nature
“ the vegetation was at an end: but be that as it may, they were to be
“taken by the defendant immediately, and it was quite accidental if
“ they derived any further advantage from being in the land. This
“ differs the present case from Waddington v. Bristow, and Crosby
“ v. Wadsworth. The lessee prtime vesturae may maintain trespass
“ quare clausum fregit, or ejectment for inquiries to his possessory
“right; but this defendant could not have maintained either; for he
“ had no right to the possession of the close ; he had only an easment,
“ a right to come upon the land, for the purpose of taking up and car-
“rying away the potatoes; but that gave him no interest in the soil.”
Bayley, J. In the other cases referred to the purchasers of the crops had
an intermediate interest in the land while the crops were growing to
maturity before they were gathered; but here the land was considered
as a mere ware-house for the potatoes till the defendant could remove
them, which he was to do immediately.]
All freehold rents, of whatever denomination are within the opera- (a) pºde 2
tº • warni - Te W. Wes. jun. 232,
tion of this clause, as coming under the word tenements (q) See also Ro-
berts on the
*So also a share of the New River water comes under the descrip- ; of
tion of “land or tenements.”(r) grad, sº,
- % 80
It is observed, (8) “ that the word tenements,” has in law so exten- (r) 1 P. Wms.
sive an import, that it may be questioned whether the superadded ºRoberts , -
words in this clause of the statute has enlarged the operation of the on the Stat-
statute. It was the only word which the statute of Westminster, 2. Žiš. 127
º • - sº re 's * - & , 1344
or 13 Ed. I, cap. 1, de donis conditionalibus, used in expressing the
subjects of its provision. And Lord Coke, in speaking of the statute
de donis, observes that the word tenement, therein includes not only
all corporate inheritances, which are, or may be holden, but also all in-
heritances issuing out of any of those inheritances, or concerning, oran-
72
Of the Statute of Frauds upon [PART I.
nexed to, or exercisable within the same, though they lie not in ten-
ure; as rents, estovers, commons, or other profits whatsoever, gran-
ted out of lands, or uses, offices, or dignities, which concern lands, or
certain places, and these may all be entailed within the statute, be-
cause they savour of the realty. Such things too whereof a wife is
dowable, as the profits of a stallage, market, or fair, a dove-house,
or piscary, which have no connection with the soil, as also a presen-
tation to an advowson, tithes, the profits of courts, fines, and heriots,
seem all to be included within the compass of this clause of the sta-
tute.
[So an agreement for a privilege to cut a canal through the owners
land, is a contract concerning an interest in lands, within the purview
of the statute of frauds. Phillips v. Thompson et al. Johns. Ch. Rep.
131. So, a contract respecting the right of erecting a milldam, on the
bank of a creek, is such an interest in the soil, as that an action of
ejectment would lie. Jackson v. Long, et al. 9 Johns. Rep. 298. so,
a grant of mines under the soil of another, is a grant of a real heredit-
ament. Stoughton v. Leach, 1 Taunt. 402. -
In Cook v. Stearns, 11 Mass. Rep. 533. the court held, that a claim
of a right to enter upon the land of another, to repair a dam, &c.
necessary to the working of a mill, and originally erected with the
consent of owner, cannot be maintained but by shewing a grant, or
prescriptive right. Parker C. J. remarks, that “a license is techni-
cally an authority given to do some one act, or a series of acts on the
land of another, without passing any estate in the land, such as a license
to hunt on another’s land, or to cut down a certain number of trees.
These are held to be revocable when executory, unless a definite time
is fixed, but irrevocable when executed. See Winess ºffbr. title Li-
cense, A. E. D. G. and the authorities therein cited, which have been
examined and found to support the positions laid down by the com-
piler. It is also holden that such licenses to do a particular act, but
passing no estate, may be pleaded without deed. But licenses, which
in their nature amount to the granting of an estate for ever so short a
time, are not good without deed, and are considered as leases, and
must always be pleaded as such.
The distinction is obvious. Licenses to do a particular act do not
in any degree trench upon the policy of the law, which requires that
bargains respecting the title or interestin real estate shall be by deed
or writing. They amount to nothing more than excuse for the act,
which would otherwise be a trespass. But a permanent right to hold
another's land for a particular purpose, and to enter upon it at
all times without his consent, is an important interest, and ought not
Char. IV.] a Contractor Sale of Zünds, &c. %3
to pass without writing and is the very object provided for by our stat.
ute. A license from the former owners to make the bank, damn, &c.
be extended only to the act done, and as to so much of the license as
was not executed, it was countermandable ; and transferring the
land, or even leasing it, without reservation, would of itself, be a coun-
termand of the license. - -
But in Storres v. Snyder, 10 Johns. Rep. 109. where A. agreed
with B. to remove his fence, so as to open a certain road to its orig-
inal width, and B. promised to pay A. therefor $10,50, and an action
was brought to recover the money, it was held that this agreement
did not concern the title to land; nor was it within the statute of
frauds.]
But all equitable liens on land are out of the statute.
Thus, in the case of Russell v. Russell,() where a lease had been () i Big CH.
pledged by a person, who afterwards became a bankrupt to the plain-jº it's.
tiff, as a security for a sum of money borrowed; and the holder berts on, the
brought his bill for the sale of the leasehold estate, though it was in- # *s
sisted by the counsel, that the plaintiff’s claim was opposed by the 3 *.
fourth section of the statute of frauds, as an attempt to charge lands
without writing, yet an issue was directed by the Lords Commission-
ers, to try with what intention the lease had been delivered ; and
Lord Loughborough seemed to treat the contract as already executed
in equitable contemplation, and not as a thing to be performed, observ-
ing that the court had nothing to do but to supply the legal formali-
ties. Upon the trial, the jury found that the lease was deposited as a
sécurity; and the cause afterwards "coming on upon the equity re- # #
served before Lord Thurlow, Chancellor, the court ordered the lease
to be sold, and the plaintiff to be paid his money. -
Upon this branch of the statute it has also been determined, that
though the agreement be not in writing, yet if there has been a part
performance of the contract, this circumstance takes the case out of
the statute. But the part performance must be such an act, as would
not have been done but on account of the agreement, or unless the
party had not considered himself, or been. treated as owner. The
part performance must also appear to be acts done with a direct view
to perform the agreement: and they must be such as are prejudicial
to the party performing them.
Thus, in the Earl of Aylesford's case,(u) there was a parol agree- (3) St. #23.
ment for a lease of twenty-one years, upon which the lessee entered,
and continued in possession for six years, and then the Earl brought
a bill against him, to oblige him to execute a counterpart for the res-
idue of the term. The lessee pleaded the statute of frauds and perju.
Wor, J. [16] --
, sº
74 - of the Statute of Frauds upon [PART. I.
ties, which, on argument, was overruled, the agreement being in part
carried into execution. . .*
So, in Pyke v. Williams,(v) where possession of an estate having
been delivered by the seller to the purchaser, who refused to complete
his purchase, and to give a celour to his possession, procured an as-
signment of a mortgage which he antedated ; the possession deliver-
ed, was held to be an act of part performance ; and accordingly the
Lord Keeper decreed Pyke to go on with his purchase.
So, payment of part of the purchase money has been holden to be
tº) sad. 4. such a part performance, as to take a case out of the statute.
1 Wes. 82.
See also Hol- Thus, in Lacon v. Mertins,(w) it was distinctly laid down by Lord
lis v. Whit- • * , w - * # * * *
º, vº. Hardwicke, that payment of money had been always held in a court
151 and of equity as apart performance.
JDean v. -
Bard, and
Hollis v. Ed- *There is however, a case which has a contrary tendency; Thus,
º lº, a, (a) where 4. agreed with B. to make him a lease for 21 years, ren-
to laying out dering rent, and B. paying to d. 150l. fine. B. paid 100l. in part to
... * -1.’s agent, with the privity of 4., who thereupon ordered his agent to
º prepare a lease, but before it was executed, he repented and refused.
(c) 2Eq. Cas, B. exhibited his bill for a specific performance, but the court refused.
Abr 46. -
(y) 4 Vess But, in the case of Main v. Melbourn,(y) Lord Loughborough con-
#4. 720 sidered that case as ill determined. And his lordship there made
*sº this distinction, viz. that payment of a substantial part of the purchase
money will take an agreement, as to land, out of the statute on the
ground of part performance; but payment of a small part whether up-
on the notion of binding the bargain, or on account of the purchase
money is not sufficientit -
The case of Main v. Melbourn was as follows: The bill stated,
that under an act of parliament for inclosing certain lands in the
(v) 2 Vern. 455. See also Lockey v. Lockey, Prec, in Chan: 519. Seagood V :
JMeale, ib. 561. S. P. See also Buckmaster v. Harrop, 7 Wes, jun. 341. Willis'
v. Stradling, 3. Wes. jun. 378. .
t This point, however, is by no means settled, for in the late case of Coles
v. Trecothick; 9 Wes. jun. 234, it was considered as doubtful ; and in the case
of Clinan v. Cooke, 1 Schoales and Lefroy's Rep. 22. Lord Redsdale, Chancek.
lor, is reported to have said, “That it had always been considered that the
“payment of money is not to be deemed a part performance, to take a case out
“of the statute.” But see Roberts on the Statute of Frauds, 153, and Sugden's
Jaw of Venders, &c. 74 to 81. 2d. ed. 1 Eden, 516, 3.
A
CHAP. IV.] a Contract or Sale of Lands, &c.
75
county of Lincoln, part of the premises were on the 2d of April, 1793,
allotted to the defendant in respect of a right of common to which he
was entitled. The plaintiff on or about the 2d of April treated with
the defendant for the purchase of his allotment for the sum of 105l, ;
and the plaintiff agreed to purchase the same of him at that price;
and thereupon paid to the said defendant the sum of 5l. 58, in part of
the said sum of 105l.
The bill charged these facts; and that William Stanger, a neigh-
bour of the defendant, in whose presence the money was paid, before
the defendant agreed to sell the said allotment to the plaintiff, de-
scribed to the defendant where it lay; and the defendant, upon re-
ceiving such information from Stanger, agreed to sell the said allot-
ment to the plaintiff, and accepted the said sum of 5l. 5s. in part of the
said purchase money of 105l. ; also, that “the defendant had endeav-
oured to prevail upon the plaintiff to receive back the said sum of 5l.
58.
The bill, which was filed upon the 18th of March, 1793, prayed a
specific performance of the agreement. The plea of the statute of
frauds was putin in December, 1793; and from that time no step was
taken till July, 1799; when the plea was set down to be argued.
Lord Loughborough, Chancellor, said, “It is not disputed, that if
“ part of the purchase money substantially is paid, that takes it out of
“the statute. But it is contended, that five guineas are not enough
“ upon the notion of binding the bargain. I take it for granted, that
“five guineas were paid at the time ; whether upon notion of binding
“ the bargain or on account of the purchase money, they are certainly
“ part of the 100 guineas : But so small a part that it does not indi-
“ cate any intention to bind the bargain. If half a crown was paid, it
“cannot he denied that it was part of the 100 guineas. I cannot let
“ the plaintiff put his own construction upon the payment. I must
“ construe the nature of it; whether it was on the account of the pur-
“ chase money or upon the notion of binding the bargain. By the
“ plea the defendant admits the fact, as far as it is well stated by the
“bill. The bill states, that five guineas were paid ; and avers that
“ they were paid as part of the purchase money. It does not strike
“me, that that was the nature of the transaction between the parties.
“The bill would have stated it the same way, if five shillings had been
“paid. There is something also in your not having set down this plea,
“You file a bill for a specific performance; and when the defendant
“has pleaded, you stop short upon it. What business has the defend-
“ant to go farther It is hanging up, a person upon a purchase.”
But if real estates are put up to public sale, payment of the auction
duty is no circumstance of part performance. So, where the application.
to enforce a contract is made by the vendor, he cannot set up the cir-
# 83
76
Of the Statute of Frauds wipon [PART I.
{z)? Ves,
jun. 341.
$ + e
Coram Sir
t
yy , Grant,
Master of the
§º
84
º
&
*:
(
%
i) Bull. N.
280. 3
arr. 1921.
… ‘y
t pest, 117.
gumstance of the vendee’s paying part of the purchase money as a part
performance. He must show some act done by which he himself is
prejudiced.
Thus in the cuse of Buckmaster v. Harrop,(2) the facts were
these : On the 23d of July 1800, certain estates were sold in four lots
by distinct particulars; and two agents for Peter Davenport Finney
were declared the best bidders, at several sums amounting *to 3,1191;
and they immediately after the sale, declared, that they purchased
for Finney; and Finney offered to pay the deposits, 10 per cent. and
the auction duty, to Strethil Wright, the auctioneer, who was also the
vendor : but he declined receiving either, alleging, that it was then
late at night, and he had to go eight miles ; but he told Finney, he
would lay down the money; and would settle the same with him
some other time, which Finney agreed to ; and accordingly Wright
paid the auction duty, amounting to 77.l. 19s. 6d. By the conditions
of sale the purchaser was to have possession of lot 3. immediately, and
of the other lots at Michaelmas next; paying the remainder of his
purchase money upon the execution of the conveyance on or before
the 29th of September, Finney soon afterwards gave the amount of the
auction duty to his attornies, to be paid to Wright, directing them to
take a proper receipt. He also sold the crops of hay, grass, and oats,
then growing on the premises comprised in lot 3. for 50l. to a person,
who afterwards took possession of the premises in that lot. Finney
died before the 50l. or any rent became due. An abstract of the title
was sent to the attornies of Finney, about the 15th of September, who
approved the title ; but, before any conveyance, on 22d of September,
Finney died, . . . -
The bill was filed by the heirs at law of Finney, against the execu-
tors, the residuary legatee, and Wright; praying a specific perform-
ance of the contract; and that the purchase money might be paid out
of the personal estate, ; *s
The Master of the Rolls said; “The question must be the same,
“whether a purchase, or a sale is insisted on : Was the ancestor him-
“self bound P Was there such an engagement as converts the real
“ estate into personal, or the personal estate into real 2 I am of opin-
“ion, every objection may be taken upon either, which it would have
“ been competent to the deceased to take, if he had resisted the exe-
“cution in his life. The plaintiffs say, if it is necessary, and I am
“ of opinion it is, they can show there was such an agreement. First,
“ they say, either a sale by auction, is not within the statute of frauds;
“ or, the auctioneer putting down the name of the vendee is an agree-
“ment in writing; and they cite Simon v. Metivier (a)—But what:
CHAP. IV.] a Contract or Sale of Lands, &c. 77.
“ever is the authority of that case, it has been held not to extend to
“ land. It was twice so ruled by Lord Chief Justice Eyre. *In # 85
“ Walker v. Constable, and Stansfield v. Johnson (b) it was held not (b) Wide post.
“sufficient that the agent wrote down the name.
[Sales of lands at auction are within the statute of frauds; except
sales under decree. Blagden v. Bradbear, 12 Wes. 466. 15 Wes.
521.] -
“ The plaintiffs then contended, that the agreement is part perfor-
“med as to all the lots ; and, if not as to all, as to lot No. 3. I am
“ of opinion this is no part performance. The revenue laws ought
“never to be held to operate beyond their direct and immediate pur-
“ pose, to affect the property, and vary the rights of the parties, not
“ within the intention of the act. Upon a sale by auction so much is
“ paid to the vendor as part payment; and so much to the government,
“ as tax—If the purchaser refuses to pay the tax, his bidding is void.
“If he pays it, the only consequence is, his bidding has the same effect
“ as it would have had, if no such law had been made, and no other.
“That, without which there would have been no contract, cannot be
“ said to be in part performance of the contract. The only contract
“with the vendor, and which I can enforce is, for the price. But, sup-
“pose payment of the auction duty could be considered part of the
“ price, I do not see how that could bind the purchaser. In general,
“the party seeking the performance must show a performance on
“ his side, as a reason for the interference of the court in his favour ;
“for the ground upon which the court acts is fraud in refusing to per-
“form after performance by the other party—The inquiry is, whether
“Finney, if so disposed, could have resisted the performance ; for, if
“he could, upon the principle Ibefore stated, the heir is not entitled
“to call for an application of the personal estate for this purpose.
“Now, his refusal, after paying part of his purchase money, would
“ be no fraud upon the seller, but his own loss; in this case, the loss
“ of the personal estate. Wright having advanced the duty, is en-
“ titled to call upon the executors. In Lacon v. Mertins, the act of
“ part performance was payment of a considerable part of the pur-
“chase money; and the taking notes was only as a security, in case
“it should not proceed; and it was held, that notwithstanding that,
“it was part performance ; and therefore, it was a fraud to refuse per-
“ formance on the other side.
“Another act of part performance was insisted upon here: the
“circumstance stated by the witness Barlow, relative to lot 3. If
“this were held to be an act of part performance, it could not affect
“any other lot : for the several lots were included in distinct articles
# of sale; and so were unconnected. But even as to this lot I am of
fa
©f the Statute of frauds upon [PART I.
* 86
“*opinion, it is not a part performance. The bargain with Barlow
“was the mere act of the vendee. The vendor had no prejudice. He
“ had done nothing to entitle him to say, the non-execution was a
“fraud upon him. If he had let Barlow into possession, that would
“be an act by which he might have had a prejudice. All Barlow
“says is, he is now in possession; which eannot be taken to be be-
“fore Finney’s death ; and nothing that passed since, could influence
“the question : the inquiry being, whether at his death he could have
“been compelled to perform the agreement. I am aware there are
“cases that acts done by the defendant can be made a ground for
“compelling him to perform the agreement; but it is difficult to bring
“those cases to bear ; for, to what do such acts amount when there
“is no prejudice to the plaintiff? Only to proof of the existence of
“an agreement. The existence of the agreement may be put out of
“all doubt by the acts: but the objection upon the statute, that the
“agreement is not in writing, remains where it did. The court does
“not profess to execute a parol agreement merely, because it is sat-
“isfactorily proved. In Whaley v. Bagenal, which being before the
(a) Bro. P.
C. 345. See
also Cooke v.
Tombs, 2
Anstr. 420.
S. P.
$ 87
“House of Lords, must supersede the authority of every other oase;
“various acts had been done, which implied that the party had sold
“ the estate, and did not consider himself any longer the owner of it.
“The question still remained, whether that agreement should be car-
“ried into execution ; and it was held, that the acts done by the
“defendant did not entitle the plaintiff to have it specifically per-
“ formed.
&6. Upon the whole, the plaintiffs are not entitled to this relief.”
In the case of Whaley & Bagnet or Bagenal.(a) the application
was for a specific execution of the contract ; and was made on behalf
of the party by whom the acts of part performance were not done
against the party performing them. The case, in substance was as
follows: A. agreed by parol with B. for the purchase of lands. B. de-
livered a rent-roll, which was dated and altered in his own hand wri-
ting, and showed by the title of it, that an agreement had been made
between them for the sale of the estate at twenty-one years purchase.
An abstract of the title was also delivered to 4. together with the
deeds, in order to be compared with the rent-roll. B. likewise wrote
letters to several of his creditors, informing them that he had con-
tracted with 4. for the sale of his estate, at twenty-one years pur-
chase, and sent the tenants to treat with A. for a renewal of their
leases. B., however, refused “to complete the purchase. .4. There-
upon filed a bill in the court of Chancery in Ireland, for a specific
execution of the agreement; to which B. pleaded the statute of frauds
in bar; and the plea was allowed by order of the Chancellor ; and
which order, upon appeal, was affirmed by the House of Lords.
{SHAP. IV.] a Contract or Sale of Lands, &c.
yé
[In these cases relief is administered on the ground of fraud, in
suffering the party to proceed on the agreement, and then unconsci-
entiously insist on its imperfection and is a species of fraud cogniza-
ble only in equity. Mr. Justice Buller, it is true, observed in one or
two cases, that part performance takes a case out of the statute, at
Iaw as well as in equity; but he afterwards abandoned so untenable
a position. See 1 Mad. Chan. 300. and the cases there cited, as to
what will be considered a part performance.
The payment of money, either in part, by way of earnest, or in full,
for the purchase, is not, it seems, deemed a part performance ; but
the cases are contradictory. See 1 Mad. Chan. 304.
But if there be a plea of the statute of frauds, and no parol agree-
ment confessed by the answer, the court has in no case compelled the
defendant to execute it.—See 1 Mad. 305.
And though the agreement is admitted by the answer, (and it seems
it must be admitted or denied) yet, if the defendant insists on the
statute of frauds, a specific performance will not be enforced. But if
the defendant admits the parol agreement, and does not insist on the
statute, he is taken to have renounced it, and a specific performance
will be decreed. See 1 Mad. Chan. 305. and the authorities there re-
ferred to by the learned author of that valuable Treatise.]
For more concerning the sale of lands, vide post, 109.
> *—-"
5. Of Agreements not to be performed within a Fear, &c.
By the last branch of the 4th clause of the statute it is enacted,
“That no action shall be brought to charge any person upon any
“ agreement that is not to be performed within the space of one year
“from the making thereof, unless the agreement upon which such ac-
“tion shall be brought, or some memorandum or note thereof, shall
“be in writing, and signed by the party to be charged therewith, O}"
“some other person thereunto by him lawfully authorized.”
typon this part of the statute it has been holden, that if no time
be stipulated for the performance of the agreement, and it is capable
of being performed within a year from the making thereof, it is not
within the statute, though it be not actually performed till after that
period.
Thus,(b) where a parol promise was made to pay so much money (b) Anony-
upon the return of such a ship, which ship happened not to return gº
within two years time after the promise made : It was made a ques-
tion before all the judges whether this promise was void by the stat-
case,
89
of the statute of Mauds upon Agreements [PART I.
ute of frauds. They were of opinion that it was a good promise,
and not within the fourth clause of the statute, for that by possibility
the ship might have returned within a year; and though by accident
it happened not to have returned so soon, yet, they said, that clause
of the statute extends only to such promises, where, by the express
(c) Skin. 353.
Holt, 326: S.
C. See also
Comb. 463.
Skin. 326. S.
P.
# 88
(d) 3 Burr.
1278. 1 B1.
§ºp. 353. S.
appointment of the party, the thing is not to be performed within a
year. -
So, in the case of Peter v. Compton,(c) which was an action upon a
parol agreement, by which the defendant promised, in *consideration
of one guinea, to give the plaintiff so many on the day of his mar-
riage. And the question upon the trial, before Holt, Ch. J., was
whether such agreement ought to be in writing, for the marriage did
not happen within a year: the Chief Justice advised with all the
judges, and by the great opinion (for there was a diversity of opinion,
and his own was e contra) where the agreement is to be performed
upon a contingent, and it does not appear in the agreement, that it is
to be performed after the year, there a note in writing is not necessa-
ry, for the contingent might happen within the year ; but where it
appears by the whole tenor of the agreement, that it is to be perfor-
med after the year, there a note is necessary ; otherwise not.
So, in the case of Fenton v. Emblers, executor of May,(d) where
the promise was stated in the declaration thus: “that William May,
“ the defendant’s testator, in consideration that the said Sarah (the
“ plaintiff) would be and become the house-keeper and servant of the
“ said William, and take upon herself the care and management of
“ his family, &c., and perform the same as long as it should please the
“ said William and Sarah, undertook and promised to pay wages to
“ the said Sarah, at and after the rate of 6l. for one year; and also
“ by his last will and testament, to give and bequeath to the said Sarah
“a legacy or annuity of 16l, by the year, to be paid to her yearly,
“ &c.; and that the said Sarah, confiding in the said promise, entered
* into the said testator’s service, and became his house-keeper, &c. and
“ continued so for three years and 59 days; but that the said William
“ had not performed his said agreement, and did not leave her such
“legacy or annuity,” &c. And it appeared upon the evidence that
there was such an agreement between the said William May, and the
plaintiff, but that it was by parol, and not in writing. It appeared al-
so, that the plaintiff did enter into the testator’s service, and con-
tinued in such service till his decease; but that the testator did not
give herby his last will or otherwise, the said annuity of 161 per an-
num; or any other annuity. An objection was taken upon the fourth
section of the statute of frauds, that the agreement was not to be per-
formed within the year. And it was said, that it would be extremely
inconvenient to establish promises of this kind, not reduced to writ:
CHAP. IV.] not to be performed within a Year.
3i
ing; that the agreement could not be performed on May's part within
a year, for a whole year from his death was “to elapse before the an-
nuity, or any part of it, was to become payable: but it was answered
on the other side, that the action was brought for May’s not having
done what he ought to have done in his life-time, so that it might
have been done within the year. And Mr. J. Dennison declared his
opinion to be, in which opinion the other Judges fully coincided, “that
“ the statute of frauds plainly means an agreement not to be perform-
“ed within the space of a year, and expressly and specifically so
“ agreed. That a contingency was not within it; nor any case that
“ depended upon a contingency; and that it did not extend to cases
“ where the thing only might be performed within the year.”
[By the word performance in this clause of the statute, a complete
and not a partial performance was meant. Hence, if it appear to have
been the understanding of the parties to a contract at the time, that
it was not to be completed within a year, although it might and was
in fact in part performed within that time, such contract is within this
clause of the statute, and if the requisites of the statute, are nºt
complied with, it cannot be enforced. Thus in the case of Boydell v.
Drummond, 11 East, 142, which was an action against the defendant
as a subscriber of the Boydell Shakespeare. It appeared from the
agreement that it could not be executed within a year as it provided
in the terms of it for the annual performance of certain portions of
the work. And the defendant's signature in a book entitled
“Shakespeare subscribers, their signatures,” not referring to a print-
ed prospectus which contained the terms of the contract, and which
was delivered at the time to the subscribers to the work, cannot be
connected tdgether, so as to take the case out of the statute, as such
connexion could only be established by parol evidence. -
Ld. Ellenborough. C. J. “We are all of opinion that this was not a
contract which was to be performed within a year. It has been ar-
gued that an inchoate performance within a year is sufficient to take
the case out of the statute ; but the word used in the clause of the -
statute is performed, which ex vi termini must mean the complete
performance or consummation of the work; and that is confirmed by
another part of the statute, requiring only part-performance of an
agreement to supersede the necessity of reducing it to writing; which
shews that when the legislature used the word performed, they meant 3.
a complete and not a partial performance.”
Bayley, j. The cases have decided that in order to bring a con-
tract within this branch of the statute, it must either have been ex-
pressly stipulated, or it must appear to have been the understanding of
the parties, that it was not to be performed within a year. The mis-
chief meant to be prevented by the statute, was the leaving to memory
the terms of a contract for longer term than a year.]
Wory. I, [11]
•
# 83
32 tº the Statute of Frauds upon [PART I.
6. Of Contracts for the Sale of Goods.
By the 17th section of the statute of frauds it is enacted “ that no
“contract for the sale of any goods, wares, and merchandizes, for the
“price of 10l. 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
“ of payment, or that some note or anemorandum in writing of the
“ said bargain be made and signed by the parties to be charged by
“ such contract, or their agents thereunto lawfully authorised.”
Upon this clause of the statute it has frequently been made a ques-
tion whether shares of a company, or public stock, are comprehended
under the words goods, wares, and merchandizes. But the point
does not appear to have been finally settled ; for in the case of Picker-
(e) Com. ing v. Appleby,() which was an action of assumpsit, for 680l. for ten
Rep. 354. shares in the stock of the governors and company of the copper mines
in England, transferred and sold by the plaintiff to the defendant.
There was no agreement or memorandum in writing of the contract,
or any earnest paid.
And upon the trial before King, Ch. J., it was doubted whether the
shares in the stock of this company were within the purview and in-
tent of the statute of frauds; and therefore it was made a case, and
argued before the Court of Common Pleas; and afterwards at Ser-
jeant’s Inn before all the Judges of England
# Q() *The Judges, however, being divided in opinion, the question was
(f) see 2 P. adjourned.(f)
W ms. 308.
3....” But, in the case of Mussel v. Cooke,(g) where the plaintiff had
Rºng said agreed with one Green, the defendant’s broker, for 5,000l. South-Sea-
that the judg- ºl, * ivor * e
es were equal- stock, at 187l, per cent, to be delivered about 10 days after ; and on
ly divided on the day appointed, the plaintiff attended at the transfer office all day,
tºº.” but the defendant did not come, and the stock having in the mean
tº Fre... in time considerably risen, the defendant refused to transfer it; the plea
Ch. 533. of the statute seemed to the Lord Chancellor, Macclesfield, to be good.
H) Select e º ->
8. lºan. It is observed (*) that this last mentioned case of Mussell v. Cooke
in Lord came on in Trinity term, 1720, and is probably the case alluded to in
{{ in trº - - e º º g
.*.* * Crull v. Dodson,(h) wherein the court said, that it had been determin-
G. ed. III. ed in Chancery, that bargains relating to stock are within the statute
of frauds, and if earnest be not given are nuda pacta.
*ā-
(*) Roberts on the Statute of frauds, 185.
CHAP, IV.] Contracts for the Sale of Goods. §§
So, in the case of Colt v. Netterville,(i) which turned not only upon (i) 2P.
the question whether stock came within the description of goods, &c. Wms. 307.
but also upon the circumstance of something having been given as
earneşt.
It was a bill for a specific performance of an agreement for trans-
ferring some York-Buildings’ stock, stating that the defendant had
agreed to transfer it to the plaintiff on a particular day therein men-
tioned, on the plaintiff’s paying the money, and that the plaintiff agreed
to pay so much per cent. and to accept the transfer, and did there-
upon pay to the defendant 6d. earnest. To which bill the statute of
frauds was pleaded, and the defendant denied that he received or ac-
cepted the 6d. as earnest, and alleged that no part of the stock was
delivered or note given; whereupon it was argued, that the York-Buil-
dings, and other stocks, were within the words and meaning of the sta-
tute of frauds, so as to require either part of the thing contracted to
be sold, to be delivered, or a note in writing, or money to be paid as
earnest; for *first, that this clause of the statute mentioned expressly % 91
contracts for the sale of any goods, or merchandizes, and that the
word goods was of a very extensive signification. Secondly, that if
one having stock, should commit felony, this without question would
be a forfeiture of his stock, a forfeiture to those who should have a
grant of bona felonum, so that stock was within the words bona or
goods. Thirdly, at least it was within the word merchandize, for
every vendible thing was merchandize ; now stock was a thing ven-
dible, and in the year 1720, was the most usual merchandize which
people dealt in. * sº
Fourthly, It could be no objection that at the time of making the sta-
tute of frauds there was no such stock as Pork-Buildings’ stock; for
suppose the said statute, instead of being made in King Charles’s time,
had been enacted in the reign of Philip and Mary, since which time
hops came in, and the bargain had been made for hops to the amount
of above 10l. in money, without writing or earnest; surely such con-
tract had been void; besides this was most plainly within the mean-
ing and mischief of the statute, which intended to prevent rash and
precipitate bargains for above the value of 10l. and to restrain such
bargains as were of value,to the circumstances either of paying earnest,
or reducing them to writing.
Fifthly, It was insisted that Lord Cowper had determined such a
contract for stock to be within the statute of frauds, and that if it ex-
ceeded 10l., the same ought to be in writing, in regard stocks are goods
and merchandizes within that statute,
On the other side it was.said, that whereas the statute enacts, that
no contracts should be good for the sale of goods, wares and merchan-
dizes, of 10l. price unless part of the goods hedelivered, or earnest
$4
Of the Statute of Frauds upon [PART. I,
(#) King.
# 92
{{) Stra. 506.
at Guildhall,
{}oram Pratt,
{..}}. J.
(m) 4 Burr,
2101. See al-
so 1 H. Bl.
39. S. P.
paid, or a note in writing, this showed that such goods were intended
as were capable of an actual delivery, something that was corporeal,
and not stock which was incorporeal, nor was there any such thing as
York-Buildings’ stock at that time. *
The Lord Chancellor(k) said, “This question was before all the
“judges of England, who were equally divided upon it, six against
“six; and therefore it is a point too difficult for me to determine upon
“a demurrer.” His Lordship however, said that stock did not seem
to be goods, Wares, or merchandizes within the intent of the 17th
clause. But continued his Lordship, “This pleais not well pleaded;
“because the bill says, that the plaintiff did pay 6d. as earnest, and the
“plea only says, that the defendant did not receive or accept it as ear-
“nest; now it is not material how or in what manner the defendant
* received or accepted it, but how the other paid it, for quicquid sol-
“witur, solvitur ad modum solventis ; and so is Pinnel’s case, 5 Co.
117.” .*
So, it was formerly holden, that executory contracts (that is where
time is given for delivery of the goods) were not within this clause
of the act; for that it only related to executed contracts, or where.
the goods were to be delivered immediately after the sale.
Thus, in the case of Towers v. Sir John Osborne.() where the
defendant bespoke a chariot, and when it was made refused to take it,
and in an action for the value, it was objected, that they should prove
something given in earnest, or a note in writing, since there was no
delivery of any part of the goods, But the Chief Justice ruled this
not to be a case within the statute of frauds, which relates only to
contracts for the actual sale of goods, where the buyer is immediately
answerable, without time given him by special agreement, and the
seller is to deliver the goods immediately. -
30, in the case of Clayton v. Andrews (m) the defendant agreed to
deliver a certain quantity of wheat to the plaintiff within three weeks
or a month, from the said agreement; at a certain rate, to be paid on
delivery ; which wheat was understood by both parties at the time of
making the agreement, to be then unthrashed. No part of the wheat
so sold was delivered ; nor any memorandum thereof made in writing
nor any earnest given ; and the question for the opinion of the court
$º £owers v.
sborne, wº
supra.
# 93
was, whether this agreement was within the statute of frauds. Lord
Mansfield held upon the authority of the case in Strange, (n) that it
was not within the statute. And Mr.J. Fates said, “The 17th clause
“ of the statute related only to executed contracts. Here wheat was
“ sold, to be *delivered at a future time. It was unthrashed at the
“ time when the contract was made ; therefore it could not be delive
ÇHAP. IV.] Contracts for the Sale of Goods. t 35
“ered at that time.” To which Mr. J. Aston agreed, adding that the
case of Towers v. Osborne had always been considered an authori-
ty in point on questions of this kind.
But the distinction taken in these cases between executory and ex-
ecuted contracts, has been since overruled ; and it is now settled, that
where the goods contracted for are complete, and ready for delivery,
and existing in solido, at the time of the contract, it is within the
statute; but that where the goods contracted for are not complete and
ready for delivery, but are either to be made, or something is requir-
ed to be done in order to put them into the state in which they are
contracted to be sold, such a contract is out of the statute, and need
, not be in writing.
Thus, in the case of Rondeau v. Wyatt, (o) which was an action on (o) 2. H. Bl,
the case for the non-performance of a special agreement. At the 3. : º
trial, before Lord Loughborough, Ch.J. it appeared, that the defendant, : posi,99.
who was one of the proprietors of the fllbion Mill, had entered into a where the
g - . determina-
verbal agreement to sell and deliver 3,000 sacks of flour to the plain- i.; this
tiff to be put in sacks, which the plaintiff was to send to the mill, and case was
shipped on board vessels to be provided by him in the river, on an º, º: d
express condition that the flour should be exported to foreign parts, judges of the
from some port which the plaintiff was to open, and should not meet 'ºhan.
the defendant and the company again in the home market. In order
to carry the scheme of exportation into effect the plaintiff sent down
to Shoreham, in Sussea, a large quantity of corn and flour merely to
reduce, by collusion and a fictitious sale, the market-price to the level
prescribed by act of parliament.(p) But this intended trickbeing dis- (p) 13 Geo.
covered by government, the exportation was prevented, as the price III. c.45, sº
was then very high, and an apprehension of a scarcity in this coun-
try prevailed. As the plaintiff, therefore could not legally comply
with the condition contained in the contract, the defendant refused to
deliver the flour. In consequence of this, the plaintiff filed a bill in
Chancery against the defendant, praying a specific performance, a
discovery of facts, &c. and the names of the partners in the under-
taking. In his answers to the bill the *defendant admitted the agree-
ment, but pleaded the statute of frauds, and averred that there was
no note, or memorandum in writing, nor a delivery of any part of the
flour to the plaintiff, &c. following the words of the statute. That
plea being overruled, the present action was brought, in which the
plaintiff obtained a verdict, contrary to the opinion of Lord Lough-
borough, before whom the cause was tried, who thought that on grounds
of public policy, but chiefly because the contract seemed to him to be
within the statute of frauds, the plaintiff was not entitled to recover.
Arule was therefore obtained calling upon the plaintiff to shew Causes. *
why the verdict should not be set aside, and a nonsuit entered.
% 94.
86
Of the Statute offrauds wpoſſy - [PART I.
And after the case had been fully argued at the bar, and the court
had taken time to consider, Lord Loughborough pronounced the judg-
, ment of the court to the following effect ;
“The only point to be decided, is that which arises on the statute
“ of frauds; and we who are now in court,(p) think that the objec-
“tion made on that statute is well grounded, and therefore that the
“ plaintiff ought to be non-suited. It was said in the argument, 1st.
“That the statute does not extend to cases of executory contracts;
“ and 2dly. That it was not applicable, where the agreement which
“ was the subject of the action, stood confessed by the defendant’s
“answer to a bill in equity; and that in the present case, the agree-
(q) Bull. N.
P. 280. 3
Burr. 1921, et
post, 117.
(r) Ante, 92.
# 95
(s) .Ante, 92.
ſ
“ment did appear on the face of the proceedings in Chancery. To
“try the validity of the first objection it will be necessary to advert
* to that clause of the statute on which the question arises.” His
Lordship here read the clause and afterwards observed, “Now it is
“singular that an idea could ever prevail that this section of the sta-
“tute was only applicable to cases where the bargain was immediate,
“for it seems plain from the words made use of, that it was meant
“to regulate executory, as well a other contracts.” The words are,
“No contract for the sale of any goods,” &c. And indeed, it seems
that this provision of the statute would not be of much use, unless it
were to extend to executory contracts ; for it is from bargains to be
completed at a future period, that the uncertainty and confusion will
probably arise, which the statute was designed to prevent. The case
of Simon v. Mitivier,(q) was decided on the ground that the auction-
eer was the agent as *well for the defendant as the plaintiff, and
therefore that the contract was sufficiently reduced into writing.
The case of Towers v. Sir John Osborne(r) was plainly out of the
statute, not because it was an executory contract, as it has been said,
but because it was for work and labour to be done, and materials and
other necessary things to be found, which is different from a mere
contract of sale, to which species of contract alone the statute is ap-
plicable. In Clayton v. Andrews,(s) which was on an agreement to
deliver corn at a future period, there was also some work to be perfor-
med, for it was necessary that the corn should be thrashed before the
delivery. This perhaps may seem to be a very nice distinction, but
still the work to be performed in thrashing, made, though in a small
degree, a part of the contract. Some of the cases in the Court of
Chancery seem to have been founded on the nature of the proceed-
ings in equity, where the court will lay hold of some circumstance
of his own admission to compel a party to the performance of his a-
greement. But the same rule is not applicable to courts of law, for
(p) Pie. Lord Loughborough, Mr. Justice Gould, and Mr. Justice Heath.
But his Lordship mentioned a few days before he gave judgment, that Mr. Jus-
tice Wilson, who was then sitting in Chancery as one of the Lord’s Commiss.
sioners of the Great Seal, had declared himself to be of a different opinion.
CHAP. IV.] contracts for the Sale of Goods.
8?
if a parol agreement were stated in a court of law, and there was a
demurrer which would admit the agreement, yet, still advantage
might be taken of the statute. The early cases in Prec. in Chan.
208. and 374. do not seem fairly to admit any other construction
than this, namely, that the court thought that, where a parol agree-
ment was admitted by the defendant’s answer, he might or might
not take advantage of the statute at his option. I say, the court seem
to have thought so, because in fact no such decree was made in those
cases, which contain merely the extrajudicial opinions of the Lord-
Keeper, and the Master of the Rolls. It is said in those cases, and
has been adopted in the argument, that when the defendant con-
fesses the agreement, there is no danger of perjury, which was the
only thing the statute intended to prevent. But this seems to be ve-
ry bad reasoning, for the calling upon a party to answer a parol agree:
ment certainly lays him under a great temptation to commit perjury.
But though the preventing perjury was one, it was not the sole ob-
ject of the statute : another object was to lay down a clear and posi-
tive rule to determine when the contract of sale should be com-
plete. Accordingly the statute has made it necessary, that either the
party buying should accept and receive part of the goods sold, or
give something in earnest to bind the bargain, or that there should
be some note or memorandum in writing signed by the parties to the
contract. Something ºtherefore direct and specific is to be done to
shew that the agreement is complete, that there may be no room for
doubt and hesitation. This was the intention of the statute in all
contracts of sale above a certain value, in order to prevent confusion
and uncertainty in the transactions of mankind ; and we think it
wise to adhere to that rule. It is not necessary in a court of law to
inquire into the modes of proceeding by which courts of equity are
guided, but it is observable, that the case of Whaley v. Bagenal,(t) (t)
in the House of Lords, coincides with the present determination of the
court. - *
I now proceed to show what kind of delivery and acceptance will
satisfy the words of this clause when the contract is not in writing.
it is clear, that an actual delivery and acceptance either of the whole
at a part of the goods sold is sufficient, where the contract is not re-
duced into writing. But an actual delivery is not in all cases neces-
sary. The thing contracted to be sold may be virtually delivered,
and such virtual delivery will be equally effectual to supersede the
necessity of writing and signing. If, therefore, the goods sold are
ponderous, and not capable of actual delivery, and the buyer ac-
cepts them, and in virtue of such transfer of the property proceeds
to exert a right over them, disposing of them, or giving orders and
# 96
•Ante, 86,
88
&f the Statute of Frauds upon [PART I.
(w) 2Esp.
Rep. 598,
See also
Hinde v.
Whitehouse,
on this point,
post, 118.
.# 97
directions respecting them, as the owner thereof, such proceedings
may countervail the actual delivery, and vest the property in the
buyer, without any written contract or earnest paid. -
Thus, in the case of Searle and others v. Reeves,(w) which was an
action of assumpsit for the non-performance of a contract. The dec-
laration stated, that in consideration that the plaintiffs had bought of
the defendant 20 barrels of rice at the price of 17s. per hundred
weight, the defendant undertook to deliver that quantity, and assign-
ed the breach in the non-delivery, • *
The evidence for the plaintiffs in support of this declaration was,
that on the 26th of September one of the plaintiffs having been at the
house of the defendant, the defendant told him that he had a quantity
of rice to sell; but there was no evidence to prove any “contract
made at the time; the plaintiffs produced an order on Bennet and Co.
to deliver to them 20 barrels of rice, which was signed by Keeves ;
the witnesses proved that Keeves had told them that he had sold 20
barrels of rice, to Mr. Searle, at 17s. per hundred; and that he was
a fool for selling it so soon, as the price of rice had advanced.
The plaintiffs then proved, the delivery of the order for the rice to
the warehouse-man of Bennet and Co.; and that the rice not being
then taken away, Keeves on the 2d of October countermanded the de-
livery to Searle, the plaintiff, in consequence of which Bennet and Co,
refused to deliver the rice to Searle, who sent for it on the 10th of
October following: " .
The counsel for the defendant contended, that as to this count the
plaintiffs ought to be nonsuited; they said that the statute of frauds
in all cases of sales of goods required a note in writing specifying the
terms of the contract, and being meant to guard against fraud in con-
tracts, made it necessary to specify particularly what the terms of
the sale were ; in this case there was no specification of the terms, the
only evidence was, the order for the delivery by the defendant, which
did, not specify any thing as to the price, so that it was not a suffi-
cient note in writing under the statute.
Eyre, Ch. J. said, “The statute of frauds does not attach where
“there has been earnest or a delivery of part of the things sold; f
“think there has been in this case a delivery of the whole. Keeves,
“ the defendant, gave an order for the delivery upon Bennet and Co.
“in whose possession the rice then was; this satisfies the statute,
“ and the plaintiffs are entitled to recover.”
CHAP. IV.] . Contracts for Sale of Goods.
89
So, in the case of Chaplin v. Rogers,(v) which was an action for () 1 East,
goods sold and delivered; and the case proved, was, that the parties §s John.
being together in the plaintiff’s farm-yard, the defendant, after some 399.
objections and doubts upon the quality of a stack of hay (particularly
the inside part) then standing in the yard, agreed to take it at 2s. 6d.
per hundred weight. Soon after he sent a farmer to look at it, whose
opinion was unfavourable. But about two months afterwards anoth-
er farmer of the name of Loft agreed with the defendant for the pur-
chase of some of this hay *still standing untouched in the plaintiff’s
yard, and the defendant told Loft to go there and ask what condition
it was in, saying he had only agreed for it, if it were good. The
plaintiff having informed Loft it was in a good state, he agreed to give
the defendant 3s. 9d per cwt. for it, the defendant having told him that
he had agreed to give the plaintiff 38. 6d. for it. Loft thereupon
brought away 36 hundred weight, but this latter fact was without the
knowledge and against the direction of the defendant. There was a
contrariety of evidence as to the quality of the hay when the stack
was afterwards cut. At the trial, before Baron Hotham, it was ob-
jected that the contract of sale was fraudulent and void by the
statute of frauds, being for the sale of a commodity no part of which
was delivered, and of which there was no acceptance by the defend-
ant. The learned judge, however, left it to the jury to decide wheth-
er the sale had been fraudulent, and whether under the circumstances
there had been an acceptance by the defendant: and they found for
the plaintiff on both points, and gave him 50l. damages, being the val"
ue of the hay at the price agreed for. A rule nisi was obtained call-
ing on the plaintiff to show cause why the verdict should not be set
aside, and a new trial had, on the grounds that the learned judge had
left that as a question of fact to the jury, which he himself ought to
have decided, as an objection in point of law arising on the statute of
frauds; and because the evidence did not warrant the verdict.
But the court decided that there was sufficient evidence of a deliv-
ery to, and acceptance by the defendant to leave to the jury; and
therefore discharged the rule.
Lord Kenyon, Ch.J. said, “It is of great consequence to preserve
“ unimpaired the several provisions of the statute of frauds, which is
“one of the wisest laws in our statute-book. My opinion will not
“infringe upon it ; for here the report states, that the question was
“specifically left to the jury whether or not there were an acceptance
“ of the hay by the defendant, and they have found that there was,
“ which puts an end to any question of law. I do not mean to disturb
“ the settled construction of the statute; that in order to take a con-
“ tract for the sale of goods of this value out of it there must either be
“a part delivery of the thing, or a part payment of the consideration,
“or the agreement must be reduced to writing in the manner therein
Wol. T. [12]
# 98
90
Of the Statute of Frauds upon [PART F.
* 99.
(w) 7 Term
Rep. 14. See.
also Alexan-
der v. Com-
ber. 1 H. Bl.
20. S. P.
(a) “Ante, p.
93.
* 100
(y) Ante, p.
92.
(s) Ibid.
“specified. But I am not satisfied in this case that the jury have
“not done rightly in finding the fact "of a delivery: Where goods
“are ponderous, and incapable as here of being handed over from one
“to another, there need not be an actual delivery ; but it may be done
“by that which is tantamount, such as the delivery of the key of a
“warehouse in which the goods are lodged, or by delivery of other
“indicia of property. Now here the defendant dealt with this com-
“modity afterwards as if it were in his actual possession; for he sold
“ part of it to another person. Therefore, as upon the whole justice
“has been done, the verdict ought to stand.” The rule was accord-
ingly discharged.
But a delivery of a sample, if it be considered as no part of the
bulk, is not a part delivery within the meaning of the statute.
Thus, in the case of Cooper v. Elston,(w) which was an action of
assumpsit, brought to recover the damages sustained by the plaintiff
in consequence of the defendant’s not delivering 50 quarters of wheat
pursuant to his contract with the plaintiff. &
At the trial, the jury found a verdict for the plaintiff, damages 50l.
subject to the opinion of the court of King’s Bench on the following
case. The defendant on the 4th of July, 1795, at Nottingham, sold
to the plaintiff by sample, 50 quarters of wheat at 4guineas per quar-
ter; the wheat to be delivered by the defendant to the plaintiff at
Gainsborough. Two days afterwards the defendant delivered to the
plaintiff at Nottingham the sample by which he had sold the wheat to
him; but such sample was no part of the 50 quarters to be delivered
at Gainsborough. No money was paid by the plaintiff to the defen-
dant on account of the wheat; nor was there any memorandum in
writing signed by the parties. The defendant afterwards refused to
deliver the wheat.
The court were of opinion that this case came within the 17th
section of the statute ; and therefore judgment was given for the de-
fendant. --
Lord Kenyon, Ch. J. said, “After this question has been afloat so
“ long in the courts, I am glad that by the very able decision of the
“Court of Common Pleas, in the case of Randeau v. Wyatt,(a)
“ the construction of this clause of the statute of frauds is brought
“ back to the manifest intention of the legislature in making that
“provision. To the authority of that case I entirely subscribe,
“ and in my opinion it governs the present. The doctrine which was
“laid down in Clayton v. Andrews,(y) as to executory contracts not
“ being within the statute, was taken from Towers v. Osborne.(2) I.
CHAP. IV.] Contracts for the Sale of Goods.
91.
“will not pretend to say that those cases were not rightly decided
“ upon their particular circumstances. The latter was a mere con-
“ tract for work and labour; the thing contracted for did not exist at
* the time. In the former also something was required to be done in
“ order to put itin the state in which it was contracted to be sold.
“But at any rate I am at a loss to discover how this can be called an
“executory contract for the sale of the goods in question. The thing
“ sold existed in solido at the time of the contract of sale. I am not
“ able to distinguish this case from that of Randeau v. Wyatt; and the
“grounds and principles of that decision are so amply detailed in
“ the report of it, that it is unnecessary to add any thing more—
“With respect to this coming within one of the exceptions of the stat-
“ute on account of the acceptance of the sample; there is no pretence
“ for it, for the case expressly states that the sample was no part of the
“goods contracted to be delivered.”
Grose, J. “The case of Towers v. Osborne, went upon the general
“principle that executory contracts were not within the meaning of
“ the statute. If by that were meant contracts for the sale of goods to
“be executed on a future day, such a construction would be a repeal of
“ the act: but ifit only meant such contracts as were incapable of being
“executed at the time, then the decision was right; and such was the
“ case then in judgment. But in this sense the contract here can-
“ not be said to be executory, for the thing existed and was capable of
“being delivered. It is much to be lamented that the excellent pro-
“ visions of the statute of frauds should ever have been infringed or
“weakened by construction: but if in this instance it has been so, I
“am glad that the decision in the case of Randeau v. Wyatt, has brought -
“us back to the letter and true spiritof thatlaw.” -
Lawrence, J. “The case of Towers v. Osborne, when truly consi-
“ dered, was not a contract for the purchase of goods, but for the ma-
“king of some thing which had no existence at the time. The case of
... Clayton and Andrews went, indeed, somewhat farther ; but still
“there was to be some alteration in the state of the commodity “be-
“fore it was to be delivered.—The cases which have been determin-
“ed in the Court of Chancery in aid of contracts of this kind were
“all founded upon the decisions which had been made at law, and
“ considered as necessarily consequent upon them. But it is not diffi-
“ cult to collect what opinion was entertained of these decisions by
“Lord Thurlow, when the case of Randeau v. Wyatt, came before
“him in the Court of Chancery, upon a bill filed to discover the facts
“and names of the parties in the undertaking, in order to found the ac-
“tion at law : he thought that the mere fact of the corn not being to be
“delivered immediately would not have taken the case out of the sta-
# 101
92
© - Of the Statute of Frauds upon [PART. Is
(a) Bos. &
Pull, 233.
# 102
“tute, if the point had been new, but he thought himself bound by the
“cases at law, till they were revised by a court of law.”
So, a delivery without an ultimate acceptance, andsuch (78 complete-
ly affirms the contract, is not sufficient to satisfy the words of the
statute. -
Thus in the case of Kent v. Huskinson,(a) which was an action of
assumpsit for goods sold and delivered, tried before Lord Alvanley,
Ch. J. The subject of the action was a bale of sponge sent by the
plaintiff, a wholesale dealer in that article, residing in London, to the
defendant, a retail dealer residing in Staffordshire. Some short time
before the sponge was sent by the plaintiff, he had been at the place
where the defendant resided, and had received from him a verbal order
under which he had acted in sending the sponge, and the price char-
ged was 118, per pound amounting altogether to 75l. Soon after the
sponge was sent, the defendant wrote the following letter to the plain-
tiff: “After receiving a letter from your house, in town, stating the
“bale of sponge was sent by your direction, I called on a friend or
“two who are competentjudges of the article, and asked them to say
“according to the present price of sponge, what it was worth ; the
“answer was, not more than six shillings per pound ; have there-
“fore returned it to you by the same conveyance it was forwarded
“by to this place. In future will select what sponge I may want
“ personally, otherwise will appoint some confidential friend for
“ that purpose.” . The plaintiff’s son being at the defendant’s house
soon after the sponge was returned, was told by him that he had
resolved not to keep the article, because it was not so good as he
had expected. It was objected for the defendant *that inasmuch as
this was a contract for the sale of goods of more than 10l. value, the
case fell within the 17th section of the statute of frauds, for want of
a note or memorandum in writing, and consequently the plaintiff could
not recover. His lordship being of this opinion, nonsuited the plaintiff.
A motion was afterwards made for a rule to shew cause why the
monsuit should not be set aside. But the court were clearly of opin-
ion, that the case was within the statute, and therefore refused the
rule. '.
Lord ºfflvanley, Ch. J. said, “At the trial I thought, and still contin-
*ue of opinion, that the evidence does not take this case out of the sta-
“tute of frauds. How is any judgment to be formed as to the nature
“of the contract between these parties PPossibly the order was for the
* best, possibly for the second best sponge, or sponge of some peculiar
“quality; all which circumstances are left in a state ofuncertainty.
CHAP. IV.] and Signature &c. of the Agreement.
93
“It was this very uncertainty, and the frauds to which it might lead,
“that the statute had in contemplation and meant to guard against.
“The only affirmance of any contract to be collected from the evi-
f dence is an affirmance of some sort of order for some sort of sponge
“and it appears that the moment the article reached the defendant
“ and was examined, he sent it back to the plaintiff, saying it was
“ not that sort of sponge which he wanted and had ordered. The
“defendant’s letter cannot, as it appears to me, be construed into any
“thing like an acceptance, so as to bring this case within the excep-
“tion which has been relied on.”
Heath J. said, “According to the words of the statute, the excep-
“tion does not apply, unless the vendee both receive and accept.
“Now that acceptance I cannot consider to be any other than the ul-
“timate acceptance, and such as completely affirms the contract, What
“the nature of this order was, or under what circumstance it was giv-
“en, was not proved. Possibly the sponge was sent down upon spee
“culation only.”
*
•=ºse
{
*7. Of the Contents and Signature, &c. of the flgreement or Memo-
randum required by the Statute.
By the 4th clause of the statute it is enacted, “That no action
“shall be brought, &c. unless the agreement upon which such action
“shall be brought, or some memorandum or note thereof, shall be in
“writing, and signed by the party to be charged therewith, or some
“other person thereunto, by him lawfully authorised.”
And by the 17th section it is further enacted, “That no contract
“for the sale of any goods, &c. for the price of 101, sterling or up-
“wards shall be allowed to be good, except the buyer shall accept
“part, &c. or that some note or memorandum in writing of the said
“ bargain be made and signed by the parties to be charged by such
“ contract, or their agents thereunto lawfully authorised.”
The agreement or memorandum required by the statute need not
be drawn in any particular form. It may be contained in a letter or
other writing referred to by letter. But in whatever form the writ-
ing may happen to be, the agreement or promise mentioned in the
fourth clause must contain with certainty, the consideration for the
promise; and also a specification of the terms of the agreement or
contract. It must also be signed with the name of the party to be.
94 * Of the Statute of Frauds upon the Contents [PART I.
charged therewith, or his agent lawfully authorised ; otherwise the
• promise or contract will be void.(a) - :
(6) Wide Ro- .
º, º!. [Neither the 4th nor 17th sections of this statute require, that the
Frauds, 105. agent's authority should be in writing. Selw. N. P. 288–7 Mass.
º ; Rep.238, 10 Mass. Rep. 236. The note in 7th East, 565. stating
rººf ºn- that by the 4th section of the statute of frauds to affect land, the a-
-4ers, 50. &c. gent’s authority must be in writing, is a mistake. 1 Mad. Chan.
299. 10 Wes. 311.] ..’
I propose to consider these parts of the two clauses separately :
And, . - - r
1. In what Cases the Consideration must be stated.
The promise mentioned in the fourth section of the statute must .
not only be upon a good consideration, but the consideration must
be set forth in the agreement or memorandum.
(b) 5 East, Thus, in the case of Wain and another v. Warlters,(b) the plain-
º; tiff’s declared that, at the time of making the promise after men-
tioned, they were the indorsers and holders of a bill of exchange,
dated the 14th of February, 1803, drawn by one W. Gore upon and
accepted by one J. Hall, whereby Gore requested Hall, seventy days
# 104 after date, to *pay to his, Gore’s order, 56l. 16s. 6d. ; which bill of
exchange Gore had before then indorsed to the plaintiffs, and which
sum in the bill mentioned, was at the time of making the promise by
the defendant due and unpaid. And thereupon the plaintiffs before
and at the time of making the said promise by the defendant, had
retained one fl. as their attorney, to sue Gore and Hall respective-
ly for the recovery of the said sum then due, &c. whereof the de-
fendant, at the time of his promise, &c. had notice. And thereupon,
on the 30th of April, 1803, at, &c. in consideration of the premises,
and that the plaintiffs, at the instance of the defendant, would for-
bear to proceed for the recovery of the said 561. 16s. 6d., he, the
defendant, undertook and promised the plaintiffs to pay them by half
past four o’clock on that day, 56l. and the expenses, which had then
been incurred by them on the said bill. The plaintiffs then averred
that they did, within a reasonable time after the defendant’s promise,
stay all proceedings for the recovery of the said debt, and have hith-
erto forborne to proceed for the recovery thereof, and that the ex-
penses by them incurred on the said bill at the time of making the
promise by the defendant, and in respect of their having so retained
the said ºff, and on account of his having, before the defendant’s said
CHAP. IV.] and Signature &c. of the Agreement.
95
promise, drawn and engrossed certain writs called special capias,
against Gore and Hall respectively on the said bill amounted to 20l.
of which the defendant had notice; yet the defendant did not at
half past four o’clock on that day, &c. nor at any time before or since,
pay the said sum of 56l. and the said expenses incurred, &c. There
was another special count, charging that the reasonable expenses in-
curred on the bill were so much, which the defendant had refused to
pay. And the common money counts.
In support of the undertaking laid in the declaration the plaintiff’s,
at the trial, at Guildhall, produced the written engagement signed
by the defendant, which was in these words : “Messrs. Wain and
“Co. I will engage to pay you by half past four this day, fifty-six
“pounds and expenses on bill that amount on Hall ; signed John
“ Warlters, (and dated) No. 2, Cornhill, April 30th, 1803.” Where-
upon it was objected, on the part of the defendant, that though the
promise, which was to pay the debt of another, were in writing, as
required by the statute of frauds, yet that it did not express the con-
sideration of the defendant’s promise, which was also required by
the statute to be in writing, and that this omission could not be sup-
plied by parol evidence ; *(which the plaintiffs proposed to call in or-
der to explain the occasion and consideration of giving the note ;)
and that for want of such consideration appearing upon the face
of the written memorandum it stood simply as an engagement to pay
the debt of another without any consideration, and was therefore nu-
dum pactum, and void. - - -
Lord Ellenborough, Ch. J. before whom the cause was tried, being
of this opinion, nonsuited the plaintiff. And upon a motion for a rule
to set aside this nonsuit, the Court determined that the consideration
ought to have been stated in the agreement; and therefore discharg-
ed the rule. * -
Lord Ellenborough, Ch. J. after noticing the definition of the word
agreement by Lord C. B. Comyns, who considered it as a thing to
which there must be the assent of two or more minds, and which, he
says, ought to be so certain and complete, that each party may have
an action upon it, for which, in addition to the author’s own authority,
was cited that of Plowden ; and better (his Lordship observed) could
not be citèd.
“In all cases where by long habitual construction the words of a
“statute have not received a peculiar interpretation, such as they will
“allow of, I am always inclined to give to them their natural ordinary
“signification. The clause in question in the statute of frauds has
#
105
96
of the Statute of Frauds upon the Contents [PART I.
# 106
“ the word agreement ; (‘unless the agreement upon which the action
“‘ is brought, or some memorandum or note thereof, shall be in writ-
“‘ing,’ &c.) and the question is, whether that word is to be under-
“ stood in the loose incorrect sense in which it may sometimes be
“used, as synonymous to promise or undertaking, or in its more prop-
“er and correct sense, as signifying a mutual contract on considera-
“tion, between two or more parties 2 The latter appears to me to
“be the legal construction of the word, to which we are bound to
“give its proper effect; the more so when it is considered by whom
“that statute is said to have been drawn, by Lord Hale, one of the
“greatestjudges who ever sat in Westminster Hall, who was as com-
“petent to express as he was able to conceive, the provisions best cal-
“culated for carrying into effect the purposes of that law: The per-
“ son to be charged for the debt of another is to be charged, in the
“ form of the proceeding against him, upon his special promise; but
“ without a legal consideration to sustain it, that promise would be
“ nudum pactum as to him. The statute never *meant to enforce
“any promise which was before invalid merely because it was put in
“writing. The obligatory part is indeed the promise, which will ac-
“count for the word promise being used in the first part of the
“clause, but still, in order to charge the party making it, the statute
“proceeds to require that the agreement, by which must be under-
“stood the agreement in respect of which the promise was made, must
“be reduced into writing. And, indeed, it seems necessary for effec-
“tuating the object of the statute that the consideration should be set
“ down in writing as well as the promise; for otherwise the conside-
“ration might be illegal, or the promise might have been made up-
“on a condition precedent, which the party charged may not after-
“wards be able to prove, the omission of which would materially va-
“ry the promise, by turning that into an absolute promise which was
‘‘ only a conditional one : and then it would rest altogether on the
“conscience of the witness to assign another consideration in the one
“case, or to drop the condition in the other, and thus to introduce the
“ very frauds and perjuries which it was the object of the act to ex-
“clude, by requiring that the agreement should be reduced into writ-
“ing, by which the consideration, as well as the promise, would be ren-
“ dered certain. The authorities referred to by Comyns all show that
“ the word agreement is not satisfied unless there be a consideration,
“which consideration forming part of the agreement ought therefore
“to have been shown ; and the promise is not binding by the statute
“unless the consideration, which forms part of the agreement, be also
“stated in writing. Without this, we shall leave the witness, whose
“memory or conscience is to be refreshed, to supply a consideration
“more easy of proof, or more capable of sustaining the promise declar-
“ed on. Finding, therefore, the word agreement in the statute, which
“appears to be most apt and proper to express that which the policy
**.
.CHAP. IV.] and Signature, &c. of the Agreement,
ºf
“ of the law seems to require, and finding no case in which the proper
“meaning of it has been relaxed, the best construction which we can
“make of the clause is to give its proper and legal meaning to every
“word of it.” *- r
Grose, J. “ It is said that the parol evidence tendered does not
“contradict the agreement; but the question is, whether the statute
“does not require that the consideration for the promise should be in
“ writing as well as the promise itself ; Now the words of the statute
“ are, that no action shall be brought whereby to charge the defend-
“‘ant, upon any special promise, to answer for the debt, &c. of an-
“‘ other person, &c. unless the agreement upon which such "action
“‘shall be brought, or some memorandum thereof, shall be in writ-
“‘ing,’ &c. What is required to be in writing, therefore, is the
“ agreement, (not the promise, as mentioned in the first part of the
“clause) or some note or memorandum of the agreement. Now the
“ agreement is that which is to show what each party is to do or per-
“form, and by which both parties are to be bound ; and this is requi-
“red to be in writing. If it were only necessary to show what one
“of them was to do, it would be sufficient to state the promise made
“by the defendant who was to be charged upon it. But if we were
“to adopt this construction, it would be the means of letting in those
“very frauds and perjuries which it was the object of the statute to
“prevent. For without the parol evidence the defendant cannot be
“charged upon the written contract for want of a consideration in
“law to support it. The effect of the parol evidence then is to make
“him liable; and thus he would be charged with the debt of another
“by parol testimony, when the statute was passed with the very in-
“tent of avoiding such a charge, by requiring that the agreement, by
* which must be understood the whole agreement, should be in writ-
{{ ing.” -
Eawrence, J. “From the loose manner in which the clause is word-
“ed, I at first entertained some doubt upon the question; but upon
“further consideration I agree with my lord and my brothers upon
“ their construction of it. If the question had arisen merely on the
* first part of the clause, I conceive that it would only have been ne-
“cessary that the promise should have been stated in writing; but it
“goes on to direct that no person shall be charged on such promise,
“unless the agreement or some note or memorandum thereof, that is, of
“the agreement, be in writing; which shows that the word agreement
“ was meant to be used in a sense different from promise, and that
“something besides the mere promise was required to be stated,
“And as the consideration for the promise is part of the agreemant,
* that ought also to be stated in writing.”
Vol. H. - [13]
# 16?
of the Statute of Frauds upon the entents [Pant, i.
* 10s
Le Blanc, J. “If there be a distinction between agreement and
“promise, I think that we must take it that agreement includes the
“consideration for the promise as well as the promise itself; and I
“think it is the safer method to adopt the strict construction of the
“words in this case, because it is better calculated to effectuate the
“intention of the act, which was to prevent frauds and perjuries, by
“requiring written evidence of what the parties meant to be bound .
“ by. I should have been as well satisfied, *however, if, recurring to
“the words used, in the first part of the clause, they had used the
“ same words again in the latter part, and said, ‘unless the promise
“' or agreement upon which the action is brought, or some note or
“‘memorandum thereof, shall be in writing.' But not having so
“ done, I think we must adhere to the strict interpretation of the word
$6 agreement, which means the consideration for which, as well as the
“promise by which the party binds himself.”
[But the words of the statute are not to be construed so strictly, as
to make it necessary to state precisely in the memorandum of the
agreement for paying the debt of another person, what is the exact
amount of the debt; but it will be sufficient to engage to pay general-
ly, for all the goods furnished within a certain time, or whatever sum
the person may owe, &c., and the amount of the goods furnished, or of
the debt contracted, is to be ascertained by evidence at the trial. 15
East, 274;
In a late case of this kind where the promise to pay was made by
the defendant in a letter addressed by him to one G. (in which he un-
dertook in case G. would give the bearer D. indulgence for a certain
time, to see him paid,) the court held, that the evidence of G. had
been properly admitted to prove, what was the amount of the debt.
Bateman v. Philips, 15 East, 272. See 14 Ves. jun. 190: 15 Wes. 287.
So, in the case of Leut & al. v. Padelford, 10 Mass. Rep. 230. held
hot necessary that “it should appear from the writing, that the whole
* consideration for the promisehad been executed by the other party.”
Nor, is it necessary, where the consideration is a promise by the
creditor, that such promise be in the same paper, which contains that
of the other party ; nor even reduced to writing at all; for the statute
of frauds requires only the metive or consideration of a promise to
pay the debt of another, to be expressed. The same paper also
need not contain the evidence of the performance, delivery or receipt
of the thing, upon which the promise is founded. All that the statute
requiresis, that it should appear from the inspection of the påper that
the consideration is sufficient in haw; but whether that consideration
has been in fact performed, is a question for the Jury: Ibid.
In Hunt, administrator, v. Adams, 5 Mass. Rep. 360, Parsöns, C.
3, in delivering the opinion of the court in that case, after referring to
CHAP. IV.] and signature. &c. of the Agreement. $8
the case of Wain v. Warlters, remarks as follows: “ The decision in
“that case is of the first impression, and rests upon the legal import
“of the word agreement, as including not only the promise, but also
“ the consideration for which it is made. And if agreement, as used
“in the statute, is to be taken, not in a popular, but in a strictly le-
“gal sense, it may be unreasonable to question the decision.
“On looking further we find the case of Egerton v. Matthews, 6
* East, 307, where it was determined on the 17th sect. of the same
“statute, (similar to the 2d sect. of our stat.) that a memorandum of a
“bargain for the sale of goods, signed by the party to be charged,
“would take the contract out of the statute, although the consideration
“ of the bargain was not expressed in the memorandum. The two
“decisions are not easily to be reconciled. A bargain is a contract
“ or agreement between two parties, the one to sell goods or lands,
“ and the other to buy them. A contract of this sort is void in law,
“unless made on sufficient consideration. And the consideration of a
“bargain seems to be as necessary a part of it, as of any other contract
“ or agreement. But if the word agreement may be understood in
“ the popular sense, as intending the undertaking of the party charged, * *.
“ and as not necessarily including the consideration for it, we may ap- *...*
“prove of the decision in the latter case, while we may doubt as to the &
“ former.” So, in the case in 8 Johns. Rep. 23, 2 ed. before refer-
red to, C. J. Kent said, he had not been altogether satisfied with this
decision. So, Lord Eldon, C.J. in 14 Wes. 190, said there were au-
thorities directly contradicting it.]
But the same rule of construction does not apply to the seven-
teenth section of the act, viz. upon a contract for the sale of goods.
Thus, in the case of Egerton v. Matthews and another,(c) which
was an action on the case against the defendants for not accepting () 6 East,
and paying for certain goods, which they had contracted to purchase tº.s:
by the following memorandum in writing: “We agree to give Mr. Plummer, `
“Egerton 19d. per pound for 30 bales of Smyrna cotton, customary Pºst, 118-
“ allowance, cash 3 per cent, as soon as our certificate is complete.
“ (Signed) Matthews and Turnbul, and dated 2d of September, 1803.”
The defendants had before become bankrupts, and their certificate was
then waiting for the Lord Chancellor's allowance, and after it was al-
kowed they signed the memorandum again. On the opening of this,
case at the trial, before Lord Ellenborough, Ch. J., it was objected
on the authority of Wain v. Warlters, that the contract being altogeth-
er executory, and no consideration appearing on the face of the writ-
ing for the promise, nor any mutuality in the engagement, it was void
by the statute of frauds. And it not being at the time adverted to
that the case cited turned upon the meaning of the word agreement,
&
n
$99 te .6/'the Statute of Frauds upon the Contents [PART I.
(i. e.to pay the debt of another) in the fourth clause of the statute, and
that this case was governed altogether by the seventeenth clause, the
object and wording of which is different, and which has not the
word agreement, the plaintiff was nonsuited. But on a motion for .
getting aside the nonsuit, when the attention of the court was called
to the difference of the two clauses, Lord Ellenborough, on granting a
rule nisi, expressed his assent to the distinction between the two cas-
es, and said, that the nonsuit had proceeded upon a mistake at the,
trial in supposing that they were the same. And, at a subsequent
day, on showing cause against the rule, the court determined that the
case did not come within the statute, though the contract was not
# 109 signed by the seller. And Lord Ellenborough, *Ch. J. observed,
“ that the words of the statute, were satisfied if there were “ some
tº ‘note or memorandum in writing of the bargain, signed by the par-
“‘ties to be charged by such contract.” And this was a memorandum
“ of the bargain, or at least of so much of it as was sufficient to bind
“ the parties to be charged therewith, and whose signatures to it is all
‘. . “ that the statute requires.”
Lawrence, J. “The case of Wain v. Warlters preceeded on this,
“ that in order to charge one man with the debt of another, the agree-
“ment must be in writing; which word agreement we considered as
“ properly including the consideration moving to as well as the pro-
“mise by the party to be so charged; and that the statute meant to
“ require that the whole agreement, including both, should be in writ-
# ing.”
*-**
3. Of the contents and Signature, &c. required in a Contract or Sale
of Lands, &c.
(d) Prec, In the case of Seagood v. Meale and Leonard,(d) a bill was brought
Chan. 560, fo - º ©
s. 26.c, for a specific execution of an agreement for the purchase of nine.
See Sugden houses, which were in mortgage to the defendant, Leonard, for 150l.
º,"The defendant Meale, the owner of the houses, agreed to sell them to
Pendors, 77. tº 3 -> * , º arºſe tº * * * •
the plaintiff for such a sum of money, and the plaintiff paid him a guis
nea in part, and sent a note to this effect: “Mr. Leonard, pray de-
“liver my writings to the bearer, I having agreed to dispose of them,
* Four humble servant.” The defendant, Leonard, would not part
with them, unless all his money were paid him down, and afterwards
bought the houses of Meale himself; thereupon the plaintiff brought
this bill.
The defendant by his answer insisted upon the statute of frauds
and perjuries; and the question was, whether the letter or note would
CHAP. IV.] and Signature, &c. of the agreement.
101.
bring it out of the statute P For as to the payment of the guinea, that
was agreed clearly of no consequence, in case of an agreement touch-
ing lands or houses; the payment of money being only binding in cas-
es of contracts for goods.
And it was decreed that it would not, for it ought to be such an
agreement as specified the terms thereof, which this did not, though it
was signed by the party; for this mentioned not the *sum that was
to be paid, nor the number of houses that were to be disposed of,
whether all, or some, or how many, nor to whom they were to be dis-
posed of neither did this letter mention whether they were to be dis-
posed of by way of sale or assignment of lease, and so all the danger
of perjury, which the statute was to provide against, would be let in
to ascertain this agreement. t
So, in the case of Clerk v. Wright,(e) the plaintiff had agreed for
the purchase of an estate of the defendant, but the agreement was not
reduced into writing; however, in confidence of the agreement, plain-
tiff had given orders for conveyances to be drawn and engrossed, and
went several times to view the estate : some time after the defendant
sent a letter to the plaintiff, informing him, that at the time he con-
tracted for the sale of the estate, the value of the timber was not
known to him, and that the plaintiff should not have the estate, un-
less he would give him a larger price.
The bill was brought to carry the agreement into execution, to which
the statute of frauds was pleaded.
Lord Chancellor(f) allowed the plea, and observed, the letter could
not be sufficient evidence of the agreement, the terms of the agreement
not being therein mentioned. As to the objection that this agreement
was in part performed, he allowed that when a man takes possession
in pursuance of an agreement, or does any act of the like nature, the
court will decree an execution of it, but the circumstances only of
giving directions for conveyanges and going to take a view of the es-
tate he thought not sufficient.
(e) 1
* 116
Atk;
12. bis.
(f) Harda
wicke.
Lord Chancellor Cowper,(g) in speaking of the fourth clause of the (g) See the
statute of frauds, said, that that clause had not only directed such case of
JBawdes v.
tº g tº .Amhurst
further, and directed them to be signed by the parties themselves, or prº chan,
agreements to be in writing, as if that alone were sufficient, but went
some other lawfully authorised by them for that purpose; that to ob-
viate the pretence of such and such cases being out of the mischief
of the statute, the parliament had in general words comprehended all,
and directed that all agreements should be in writing, and signed by
the party; that he knew no case *where an agreement, though it were
all written with the party’s own hand, had been held sufficient, unless
it had been likewise signed by the party, and said, that i. party’s
Rqt signing it was an evidence that he did not think it complete ; that
403.
# 1 11
p3
€f the Statute of Frauds upon the Contents [PART. F.
(h) 3 Atk.
503. 1 Vez.
6. 1 Wils.
118. S. C.
But see
FIawkins v.
Holmes, 1
Wms. 770.
Stokes v.
JMoore, 1 P.
Wms. 771.
Y. 1.
# 1 12
(i) 3 Bro.
Chan. Rep.
161. 318.
he had left it to an after consideration, and might afterwards make
alterations or additions in it; and therefore, unless it were either
signed by him, or something equivalent done, to show that he looked
upon it as completed and perfected, he thought such writing by the
party himself was not sufficient to bind him within that statute.
But in the case of Welford v. Beazely,(h) a question arose upon the
statute of frauds and perjuries, whether a person subscribing a deed as
a witness only, which she knew the contents of, could be said to have
signed it within the meaning of that statute.
Lord Chancellor Hardwicke, said “The meaning of the statute is to
“reduce contracts to a certainty, in order to avoid perjury on the one
“hand, and fraud on the other, and therefore, both in this court and
“the courts of Common Law, where an agreement has been reduced to
“such a certainty, and the substance of the statute has been complied
“with in the material part, the forms have never been insisted upon.
“The word party in the statute, is not to be construed party as
“to a deed, but person in general, or else what would become of those
“decrees where signing of letters, by which the party never intend-
“ed to bind himself, has been held to be a signing within the statute.
“There have been cases where a letter written to a man’s own
“ agent, and setting forth the terms of an agreement as concluded by
* him, has been deemed to be a signing within the statute, and agree-
“able to the provision of it.”
[Whether anote written in the third person, viz. “Mr. T. pro-
poses, &c.” (making thereby an offer to purchase) amounts to a con-
tract in writing signed within the statute of frauds, is not decided,
18 Wes. 175. But see 12 Mass. Rep. 154. 3 Wes. and Beam. 202.]
Lord Hardwicke denied the general doctrine as laid down in
Aawdes v. Amhurst, though true as applied to that case by Lord Cow-
per, and said the difference betwixt the two cases was, that the writ:
ing there, thoughººl in the father’s hand, was only a sketch of an
agreement not settled or confirmed by the parties ; *but here the de-
fendant signed it as a complete agreement, and, as she knew the con-
tents, is to be bound by it in the present case. .
nd this opinion of Lord Hardwicke, was recognized and acted up-
on in the case of Tawney v. Crowther and another,(i) which was as
follows: the defendant Crowther, being seised of a house called the
White Hart inn, in Benson, in the county of Oxford, which he was
desirous ºf selling, the plaintiff employed the other defendant, Mor-
rell, an attorney at Oxford, to treat for the purchase ; who agreed to
give, and Crowther to take, 1,100l., and it was agreet between them,
#-

thap. IV.] and Signature &c. ºf the Agreement.
that the agreement should be reduced into writing, in order to be
signed ; it was accordingly reduced into writing; but Crowther,
wishing to receive the rent due at Michaelmas, possession was not to
be delivered till then ; but the defendant declared that his word
was a good as his bond, and that he should be in Oaford on the Tues-
day morning, and would then call on the defendant Morrell, and sign
the agreement. Defendant Crowther, not coming on Tuesday morn-
ing to Oxford, defendant Morrell, wrote a letter to him, saying, that,
“ though he had no doubt Crowther’s word, as he had declared, was
“ as good as his bond; yet, as life was uncertain, he wished the
“ agreement to be signed.” In answer to this, defendant Crowther
wrote a letter, in which he stated his having been from home, and ac-
knowledged he said his word should be as good as his bond, and that
there was time enough from thence to Michaelmas, to settle every
thing; and again repeated once more, that his word should always be
as good as any security he could give. This letter was afterwards
stamped.
The defendant Crowther, afterwards, refusing to complete the agree-
ment, the plaintiff filed his bill for a specific performance; to which
the defendant pleaded the statute of frauds.-This plea, however, was
overruled, the Lord Chancellor Thurlow being of opinion that the let-
ter was sufficient to prevent the operation of the statute. •
But when the cause came on to a hearing, the statute was again in-
sisted on by the answer. Upon which the Chancellor pronounced the
following judgment.
“The question turns on two points, 1st. As it stands under the
“statute of frauds; 2dly. Independently of the statute–And 1st.
“As to the statute of frauds, it is an easy question taken by itself.
“*A good deal of ingenious argument has been made use of to prove
“that the letter is insufficient to take it out of the statute of frauds.
* If the letter contains the terms of the agreement, or if it refers to
“ another paper which contains the terms, that is sufficient; for I am
* of opinion, that if a letter fefers so clearly to an agreement, as to
“show what was meant by the parties, where the existence of the pa-
“ per is proved by parol, that will take the case out of the statute,
“Then how is the fact Crowther writes a letter referring to a paper
“in his own possession, and promises to perform; such a letter would
“be sufficient to draw them from the objection, that the promise is
“not in writing. Then independent of the statute: if a letter, now,
“will bind the party; before the statute, a parol agreement would
“ have been binding. The question is, whether here is sufficient to
“ rais a contract that will bind. If the letter cannot be referred to
“...c agreement, or does not contain proper terms, I cannot treat it as
“out of the statute; butºconfess, on what appears here, the papers
“do refer to that agreement, to contain a promise to perform it; the
“defendant did intend by the letter to raise a confidence that the
# iis
104 Gf the Statute of Frauds upon the Contents [PARt 1.
“ agreement should be performed. If he had meant only to treat fur-
“ther, it would not have taken it out of the statute, being enly ad re-
“ferendum; but no doubt he meant to refer to the agreement which
“ had heen reduced into writing, and which he had carried away with
“ him. The question is, whether the writing referred to in Morrell’s
“letter was that which he wished to be signed; I think it was; then
“Crowther said, he would call on him. He admits, that on the day
“he thought he should be there, he would call; he does not deny it
“was for the purpose of signing the agreement. This, if it refers to
“the agreement, is sufficient; and I think it does. There is evidence
“in the cause of the parol agreement, which refers it to the head of
“cases where evidence is admitted of what passed by parol. It is
“argued, that he took time till Michaelmas, not to complete the for-
“mer, but to make a further agreement; it is true the conveyance
“was to be at Michaelmas; then what are his words P : My words
“‘shall be as good as any security I could give.” The signing the
“paper was the security pointed to. On the whole matter, therefore,
“he has agreed, by writing, to sign it. Several cases have been cited,
“ and it has been argued, that he declined to sign it. If he had said,
“he never would sign it, &c. he could not have been bound; but if
“he said he never would sign it, but would make it as good as if he
$ 114 “ did, it would be a promise to *perform it; if he said he would never
“sign it, because he would not hamper himself by an agreement, it
“would be too perverse to be admitted; but here I am of opinion that
“ the agreement must be performed.”
(k) 9 Wes. So, in the case of Coles v. Trecothick,(k) Lord Chancellor Eldon
jun. 234. decided that the signature of a clerk to an agent for, the seller, to an
agreement, though in the character of a witness, was a sufficient sign-
ing, the clerk being considered duly authorised to sign for the
agent. * &
A particular of sale in writing is not sufficient to take the case out
of the statute, unless the party"purchased by it, or it was shown to him
at the time of purchase. *
(1) Prec. Thus, in Cass v. Waterhouse,(l) the case was, Waterhouse, the de-
Chan. 29. fendant, was possessed of several houses as executrix to her husband,
for several terms of years, and which were in mortgage at the time of
his death; and there were likewise two other houses which the hus-
band had purchased for years, in his own and his wife's names, which
were not in mortgage at his death; after the death of the husband, the
defendant, his executrix, gave out particulars wherein were contained
as well the houses not in mortgage, as those that were in mortgage,
in order to sell them, and were shown theslaintiff Cass, who had been
much intrusted and advised with in all concerns of the family.
CHAP. IV.] and Signature, &c. of the Agreement. 105
Other purchasers not bidding enough, Cass himself, who was a cre-
ditor of the husband, came to an agreement with the defendant, for
the purchase of all the houses, and it was pretty evident in the case,
that all the houses were taken by the plaintiff and defendant to have
been in mortgage : and that the defendant was not apprized that she
had any title to any of them in her own right, and upon the plaintiff’s
agreement there was a conveyance executed of the houses, but by the
words of it, it was restrained to such as were in mortgage.
Afterwards the defendant being advised that the houses which were
purchased in her husband’s name and hers, come to her by survivor-
ship, and were not liable to his debts; and not being in mortgage, they
were not conveyed to the plaintiff; she refused to *let him have them, # 1 15.
though it appeared in the cause, she had often said she had sold them, *
as well as the rest, to the plaintiff, and he paid the taxes for them ; so
this bill was brought to have the houses conveyed, and to have a fur-
ther assurance of the others according to a covenant.
But the bill was dismissed, as to all but the making farther assur-
ance; for though the court seemed satisfied that the defendant had
covenanted to convey all to the plaintiff, and thought she had so done, yet
there being no agreement in writing, as to the two houses not com-
prised in the conveyance, the statute of frauds and perjuries stood so
full in their way, that they could not decree the conveying of them;
for though the particular was in writing, and these two houses men-
tioned in it, as well as the others ; and though it was proved, that
that particular was shown to the plaintiff, yet it was not proved to
have been shown to him on his purchase, nor that he purchased by it.
So, a writing in order to be binding within this statute, should al-
ways import the assent and privity of both the parties in respect to
the treaty or transaction itself. A mere entry therefore in a steward's
book of contracts with the tenants, was not allowed to be evidence
itself of an agreement for a lease between a lord and a tenant.(m) (m) Charle-
wood v. The
So, a contract is entire; and therefore if any part is void by the Pºº,” “
ſº ford, 1 Atk.
statute the whole must fail. 497.
Thus, in the case of Cooke v. Tombs,(n) which was a bill for a spe- (n) Amst. 420
cific performance of an agreement for the sale of certain freehold pre- §.". .
mises and stock in trade, principally consisting of stock and timber for V. Raºſ,
ship building, and some houses ; the defendant pleaded the statute ofº. Dłs
frauds. It appeared, that pending the negotiation, the defendant de-Beckett, 7
livered to the plaintiff a particular of the premises and property to be º . &
sold, and the terms or conditions of the sale, all in his own hand-writ-70, S. P. ?
ing, and signed by him, when it was agreed that the plaintiff should
Vox. I. [14]
106
Of the Statute of Frauds upon the Contents, &c. [PART I.
%. 116
(o) 2. Bos. &
Pull. 238.
3 Esp. Rep.
180. S. C. '
See also
Fowle v.
Freeman, 9.
Wes. jun,
351. Coles v.
Trecothick,
ibid 251.
%. 117
have till a certain day to consider of the purchase, as he objected to
the price. It was afterwards agreed, that the purchase should take
place at a reduced price ; and verbal instructions for a conveyance
were given by both *parties together to an attorney, to whom the de-
fendant delivered the particular as instructions for the deed, which
was prepared, read over, and approved of by the parties. The Court
of Exchequer held, that these circumstances were not sufficient to take
the agreement out of the statute : that the particular was not made
out as evidence of any agreement, but merely as a list or catalogue of
the matters for sale, to enable the purchaser to form a proper estimate
of their value; that it was delivered into the attorney’s hands for the
same purpose; and was signed merely to authenticate it as such list:
that it was delivered in as the foundation of a sale at a higher price ;
and could be of no evidence of the terms of the second contract, or
even of its existence ; since with the price, the parcels also may have
been varied : that the instructing an attorney to draw conveyances,
and his doing so, is no part performance of a contract : to take the
case out of the statute, there must be a part execution of the substance
of the agreement itself: that the agreement being void as to the land,
must be void also as to the personal property, which was to be sold
with it; it is one entire contract, and the whole must stand or fall toge-
ther : that it could never be the intention of the parties, that the stock
should be sold apart from the premises, as most of it was of little com-
parative value separately ; and the agreement being for one entire
sum, they could not sever it.
3. Of the Contents and Signature, &c. of a Contract for the Sale
of Goods.
Where an order had been given for a quantity of goods, and a bill
of parcels with the vendor’s name printed thereon delivered at the
same time to the buyer, a subsequent letter written and signed by the
vendor, referring to the order, was connected with the bill of parcels,
so as to raise a sufficient contract in writing within the 17th clause
of the statute. *
Thus, in the case of Saunderson v. Jackson and another,(o) which
was an action on the case against the defendant for not delivering
1,000 gallons of gin to the plaintiff within a certain time, according
to a bargain entered into between them. There was a second count
for not delivering within a reasonable time.
*The cause was tried before Lord Eldon, Ch. J. The contract for
the delivery of the gin having been proved on the part of the plaintiff,
CHAP. IV.] Contracts for the Sale of Goods.
107
the defendants insisted that the case was within the statute of frauds,
inasmuch as there was no note or memorandum in writing of the
bargain. The circumstances were as follow : At the time the order
for the gin was given by the plaintiff to the defendants, a bill of par-
cels was delivered to the former, the printed part of which was,
“ London. Bought of Jackson and Hankin, distillers, No. 8, Oaford-
“street,” and then followed in writing, “1,000 gallons of gin, 1. in
“5. gin 7s. 350l.” About a month after the above period the defen-
dants also wrote the following letter to the plaintiff : “Sir, we wish
“to know what time we shall send you a part of your order, and
“shall be obliged for a littie time in delivery of the remainder; must
“request you to return our pipes. We are, your humble servants,
“Jackson and Hankin.”
On this evidence his Lordship directed the jury to find a verdict
for the plaintiff, reserving the point made for the consideration of the
court. *
When the case came on for argument, the court were of opinion,
that it was not a case within the statute. And Lord Eldon, Ch. J.
said, “This bill of parcels, though, not the contract itself, may amount
“to a note or memorandum of the contract within the meaning of
“the statute. The single question therefore is, whether if a man be
“in the habit of printing instead of writing his name, he may not
“be said to sign by his printed name, as well as his written name P
“At all events, connecting this bill of parcels with the subsequent let-
“ter of the defendants, I think the case is clearly taken out of the
“statute of frauds. For although it be admitted that the letter which
“ does not state the terms of the agreement would not alone have
“been sufficient, yet as the jury have connected it with something
“which does, and the letter is signed by the defendants, there is
“ then a written note or memorandum of the order which was origi-
“nally given by the plaintiff signed by the defendants. It has been
“decided that if a man draw up an agreement in his own hand-writ-
“ing, beginning, “I, J. B., agree,’ &c. and leave a place for a sig-
“nature at the bottom, but never sign it, it may be considered as a
“ note or memorandum in writing within the statute. And yet it is
“impossible not to see that the insertion of the name at the begin-
“ning was not intended to be a signature, and that the paper was
“meant to be incomplete until it was further *signed. This last
“case is stronger than the one now before us, and affords an answer
“to the argument that this bill of parcels was not delivered as a note
“ or memorandum of the contract.” -
[If the vendor deliver to the vendee a bill of parcels of the goods
agreed for by parol, the bill of parcels will be a sufficient meme-
# 1 18
108
Of the Statute of Frauds upon [PART I.
(p) 1 New
fºep, 252.
randum in writing to take the case out of the statute of frauds; so
far as to establish a contract which may be enforced, notwithstanding
the provisions of the statute ; and the bargain proved may be consid-
ered as then made. If the contract then made, however, differ from
the one proved by the bill of parcels, the former will be of no effect;
as the law will not enforce any contract, otherwise than as it shall be
proved by competent evidence. Whitwell & al. v. Wyer & al. 11 Mass.
Rep. 6. But see Anthon’s N. P. 164.] -
But, a note or memorandum not containing the name of the buyer,
and signed by the seller only, is not a sufficient signing within the
statute. -
Thus, in the case of Champion and another v. Plummer,(p) which
was an action against the defendant for not delivering to the plain-
tiffs 20 puncheons of treacle bought of him by the plaintiffs at 37s.
per hundred, to be delivered on the 10th of December ; 20 pun-
cheons at 36s. 6d. per cwt. to be delivered on the 31st. of October ;
and 10 puncheons at 378, per cwt. to be delivered on the 1st, of No-
vember. *
At the trial before Sir James Mansfield, Ch. J. it was proved, that
a bargain for the treacle in question was made between the plain-
tiff’s clerk and the defendant, as stated in the declaration, and that
the following note was made by the plaintiff’s clerk in a common
memorandum book, and signed by the defendant as under :
Left leaf of the book, Right leaf of the book.
“Bought of W. Plummer,
20 Puncheons of treacle i0 Puncheons a, 37s,6
37 8.0
to be delivered by 10 Dec.
(signed) Wm. Plummer,
20 Puncheons treacle 36s.6
say 378.0.
1 Nov.
31 Oct. Wm. Plummer.”
On the part of the defendant it was objected, that this did not
amount to a sufficient note or memorandum of the contract within the
statute of frauds, as it was not signed by the purchaser; and his Lord-
ship being of this opinion, nonsuited the plaintiff.
A rule nisi was afterwards obtained calling on the defendant to
show cause why the nonsuit should not be set aside and a new trial
had.
*
ear. IV.] a contract for the sale of Goods. 109
*The counsel for the defendant showed cause, and insisted that it * 119
did not appear by the memorandum who was the buyer of the goods,
and, as it was not signed by the buyer, he could not be bound by it,
consequently the defendant ought not to be bound by an agreement
which would not bind the other contracting party. With respect to
the case of Saunderson v. Jackson,(q) which was referred to on mov- (q).Ante, 116.
ing for the rule, he observed, that upon reference to the brief in that
cause, it appeared that the name of the purchaser was stated in the
bill of parcéls, though that circumstance is not mentioned in the re-
port, the case having turned entirely upon the sufficiency of the ven-
dor’s signature. - -
Sir James Mansfield, Ch. J. said, “How can that be said to be a
“ contract, or memorandum of a contract, which does not state who
“are the contracting parties By this note, it does not at all appear
“ to whom the goods were sold. It would prove a sale to any other
“person as well as the plaintiffs; there cannot be a contract without
“ two parties, and it is customary in the course of business to state
“the name of the purchaser as well as of the seller, in every bill of
“ parcels. This note does not appear to me to amount to any memo-
“randum in writing of a bargain.” -
The other judges being of the same opinion, the rule was discharged.
*º-º-º:
4.
4. Of Sales by Auction, and by Brokers; and of the distinction be-
tween a Contract for the Sale of Lands and of Goods.
Upon à, sale of goods at a public auction, the auctioneer, after
knocking down the hammer, is considered as agent for the buyer, and
his setting down the name of the buyer, and the price, &c. in writing,
is sufficient to satisfy the 17th clause of the statute.(r) . .
s - - (r) JNote also,
© º - the agent's
Thus, in the case of Simon v. Motivos,(s) the defendant bought a authority
lot for more than 10l. at an auction; catalogues and conditions of *::::: %.
the sale were printed, and the defendant was the best bidder. The Waller v.
auctioneer wrote the defendant's name and the price against “the lot #ºv."
tº s Coac. 5 Vin.
in the printed catalogue by the order and assent of the defendant. '.. à.".
Between the day of the sale, and the time for taking the lot away, the * *
defendant sent his servant to see them weighed; which he did. The ...” Jun.
defendant neglecting to take away the goods, they were re-sold at a # 120
considerable loss; and this action was brought for the difference, and
(3) 3 Burr. 1921. 1 BI. Rep. 599. S. C. But this case is said to be more
ºccurately reported in Bull. N. P. 280. by the name of Simon v. JMelivier. I
have therefore taken the report of it from that book, .
~#
116
Sales by Muction, and by Brokers. [PART I.
(t) 7 East,
558.
# 121
the court strongly inclined that sales by auction were not within the
statute of frauds, because multitudes are generally present who can
testify the terms of the contract. 2dly. They held the contract was
here sufficiently reduced into writing, and signed by an agent of the
defendant’s ; for the auctioneer for that purpose was his agent. 3dly.
They held the weighing by his servant was a delivery. 4thly. Yates
J. held that as the contract was executory, viz. the lot to be fetched
away in six weeks, that therefore it was not within the statute.
So, in the case of Hinde v. Whitehouse, and Galan(t) which was an
action of assumpsit to recover the price of certain sugars sold by auc-
tion to the defendants: and the point in dispute was, whether the
plaintiff or defendants should bear the loss of the sugars in question,
which were knocked down to the defendants, by the auctioneer, at a
sale on the 20th of September, and which were burned on the 22d of
September by an accidental fire in one of the King's warehouses at
Liverpool, where they were deposited. At the trial, it was proved
that the sugars, after being landed at Liverpool on the plaintiff’s ac-
count, were deposited in one of the King's warehouses there, under
the locks of the King and of the plaintiff, from whence they could not
be removed until the duties were paid. Previous to the sale, samples
were taken of the sugars, about half-a-pound weight out of each hogs-
head, according to the custom. The printed catalogues of goods for sale
were made out in this form, and distributed : “To be sold by auction, at
“Waterhouse and Sill’s office, on Friday the 20th of September, 1805,
“at 1 o'clock, 300.hhds. Jamacia sugar,just landed. For particulars,
“apply to Thomas Hinde, merchant, or Waterhouse and Sill, brokers,
Lot Mark Hhds. Gross Wt.
1. I. A. 10 119 3 9
2. 10 121 0 7
&c. *
23. * R. H. 12 169 3 13
&c. -
27. 15 207 2 13
&c.”
*At the time of the sale the auctioneer’s printed catalogue lay on
the desk before him, and he wrote down in the same line with the lot
purchased, the name of the highest bidder, or purchaser, and the price
bid per cwt. thus: $. º
Lot Mark Hhds. Gross Wt.
tº - - - 3) # 5 - * tº Whitehouse
as R. H. is 169 s is 74. #;
tº Whitehouse
27. is 207 2 13 748. 3% Galan.
The auction was holden at the time and place appointed, and was
conducted by Mr. Sill, as auctioneer. There was no other sale on the
CHAP. IV.] Sales by fluction, and by Brokers.
111
same day. The samples were exhibited in the sale-room, and the
lots in question were knocked down to the defendants as the highest
bidders. At the commencement of the sale the auctioneer, having the
catalogue, and also a written paper containing the conditions of sale,
in his left hand at the same time, read the latter paper, as the condi-
tions on which the sale of the sugars mentioned in the catalogue was
to proceed, to the company assembled, (including one of the defend-
ants,) which paper was entitled “Conditions of Sugar Sale, Septem-
“ ber 20th, 1805;” and which paper he afterwards deposited on his
desk under the catalogue, on which catalogue he wrote the minutes of
the bidders’ names and prices; but the two papers were not fastened
together in any manner. He also made the following declaration by
parol to the bidders, which, after the sale, his clerk wrote down upon
the paper of conditions of sale. “N. B. These sugars, gentlemen,
“ have been drawn in the warehouse within the last two days; as such,
“ no allowance whatever will be made, except where an evident error
“ is manifest. The duties are not yet paid, but we intend paying
“ them to-morrow morning.” It is customary at such sales to give
an option to the purchaser to take the sugars sold according to the
weights taken at the King's beam, which were marked in the catalogue,
or to have them re-weighed : to this option one of the conditions of
sale points. But it is the constant practice for the purchaser to de-
clare his option before he leaves the sale-room, if he wish to have them
re-weighed, in order that the seller may know how to make out the in-
voices; otherwise, if he then declare no option, the invoices are made
out aceording to the weight at the King’s beam. In the present case
the defendants declared no option. The sugars are always weighed
on landing, before they are put into the warehouse; on which weigh-
ing the duties are ascertained; and after “that the samples are drawn.
The samples are always delivered to the purchaser as a part of his
purchase to make up the quantity ; and were accordingly delivered to
the defendants on the same day after the sale. The invoices were
made out on Saturday the 21st of September, but were not delivered
to the defendants till Monday the 23d, after the fire happened. The
duties are always included in the price of the sugars, and such duties
are always paid by the vendor, and are so required to be by the stat.
41 Geo.III. c. 44, and till paid the sugars cannot be removed from the
King’s warehouse. The sale was over by a quarter past 4 o’clock on
Friday the 20th, but from the hours of office, and the distance, there
was not time after the sale to get the entries made, and to pay the du-
ties. Saturday and Sunday were holidays at the custom-house; and
Monday the 23d was kept as such, being the King's coronation day.
The circumstance of Saturday being a holiday was not recollected at
the time of the sale, when the auctioneer declared that the duties
should be paid on the morrow; but the circumstance was mentioned
by the defendant Whitehouse, to a clerk of Waterhouse and Sill. On
* 122
ºf 12
- Sales by Muction, and by Brokers. [PART I.
(u) Rooke.
* 123
this point the jury found that there was no neglect in the véndor as to
the non-payment of the duties before the fire happened, which was in
the course of Sunday the 22d. The auctioneer said that it often hap-
pened that purchasers sold the sugars again before the duties were
paid, and before they were delivered out of the warehouse; and that
after the fire the defendants gave him instructions to take care of the
goods, and save what he could, without prejudice to the rights of the
parties. - * -
Upon this proof it was objected that there was no legal evidence
sufficient to fix the defendants with the purchase of these goeds
within the statute of frauds; there being no memorandum in writing
of the contract signed by the parties or their authorized agent. That
the auctioneer was no authorized agent of the vendees; but that
supposing he were so, the whole contract must appear upon the pa-
per signed by him with the names of the defendants, whereas the
conditions of sale which formed an essential part of the contract, were
not so signed, nor in any ways connected, except by parol testi-
mony, which was inoperative by the statute, with the catalogues
signed. And that the delivery of the samples was diverso intuitu, and
not as part of the goods contracted for. The learned judge(u) over-
ruled the objection, but reserved the *point for the opinion of the
Court of King’s Bench; and a verdict was found for 1,110l.
After this case had been fully argued at the bar, and the court had
taken time to consider, Lord Ellenborough, Ch. J. delivered the opin-
ion of the court as follows: -
“This was the case of a saleby auction of sugars in the king's ware-
“house and which were afterwards burnt whilst they remained there
“under the king’s lock, and deposited there for the receiving of the
“king's duties. And the question is, whether such a sale of those
“goods has taken place, as is sufficient to change the property, and
“to make them the goods of the purchasers ? the goods were put up
“to sale on the 20th of September, in pursuance of a catalogue of sale
“ which had been previously distributed for that purpose, containing
“the lots, marks, number of hogsheads, and gross weights of the su-
“gars, and referring for further particulars to the brokers; and they
“were sold on that day, according to certain conditions of sale, which
“the auctioneer read to the bidders assembled, as the conditions on
“ which the sale of the sugars enumerated in the catalogue was to be
“made; and the auctioneer also informed them that the duties were
“not then paid, but would be paid by the sellers on the morrow. It is
“admitted however that no laches is imputable to the sellers for the
“non-payment of the duties between the time of sale and the fire which
“happened on the 22d of September. Two questions have been made
CHAP. IV.] Sales by Auction, and by Brokers.
113
“on the seventeenth section of the statute offrauds, upon which ques-
“tions it depends whether what has passed between the parties as to
“ those goods constituted a valid contract of sale in respect to them.
“The first question argued upon the latter words of that section is
“this; Is the writing which has been put upon the catalogue of sale
“by the auctioneer a note or memorandum in writing of the bar-
“gain made and signed by the parties to be charged by the contract,
“or their agents thereunto lawfully authorised,” within the meaning
“ of the statute P The second question is, whether this be a case in
“which the buyer can be said to have “accepted part of the goods
* * sold, and actually received the same 2' But independently of and
“besides these questions, it has been said that sales by auction are
“ not within the statute ; and the case of Simon v. Motivos, report-
“ed in 3 Burr. 1921. and 1 Bl. Rep. 599, has been relied on. The
“report in Burrow does not distinctly mention this latter point.
“But in the report of Sir W. Blackstone, Lord Mansfield, speaking of
“sales by auction, says, “The solemnity of that kind of sale precludes
“all perjury as to the fact itself of sale.” He then mentions the
“case of a sale of sugars by auction, *which were “afterwards con-
“‘sumed by fire in the auction warehouse, and where the loss fell
“‘ upon the buyer.” He afterwards adds, “according to the inclination of
“‘my present opinion, auctions in general are not within the statute.’
“And Mr. Justice Wilmot says, that he “inclined to think that sales
“‘by auction, openly transacted before 500 people, are not within
“ - the statute.” With all deference to these opinions I do not at pre-
“sent feel any sufficient reason for dispensing with the express requi-
“sition of a memorandum in writing in a statute applying to all sales
“of goods above the value of 10l., without exception, merely because
“the quantum of parol evidence in the case of an auction is likely to
“render the danger of perjury less considerable. That argument in
“a degree applies to all sales in market overt: and if we once get
“loose from the positive words of the statute, it will become a ques-
“tion only of the quantum and degree of danger of perjury in each
“particular instance; which opens a door to an indefiniteness of con-
“struction founded on all the varying circumstances of the time and
“frequency of persons attending the places of sale, and the like;
* which would be destructive of all certainty of practice, and render
“the rule of the statute perhaps more mischievous than beneficial to
“ the trading world who are to be governed by it. I am not therefore
“prepared to say that sales by auction are not meant to be compre-
“hended within the statute. Nor would I be understood as giving
“any conclusive opinion to the contrary : neither is it necessary that
“I should upon the present occasion. The first question on the let-
“ter of the statute is, is this a memorandum of the bargain made by
“ an agent of both parties 3 In respect to sales of goods, it has been
“uniformly so holden ever since the case of Simon v. Motivos, and it
Wol. I. [15] t
# 124
114
Sales by duction, and by Brokers. [PART I.
“would be dangerous to break in upon a rule which affects all sales
“made by brokers acting between the parties buying and selling, and
“where the memorandum in the broker’s book, and the bought and
“sold notes transcribed therefrom, and delivered to the buyers and
“sellers respectively, have been holden a sufficient compliance with
“ the statute to render the contract of sale binding on each. All the
“great transactions of sale in this great city are so conducted, and
“stand on this foundation of legality only ; and it is too late, I con-
“ ceive, to draw it into question. Supposing the auctioneer or broker
“for sale to be the agent of both parties, the question then is, has he
“made a memorandum of the bargain in this case ? And it appears
“to me that he has not. The minute made on the catalogue of sale,
“which is not annexed to the conditions of sale, nor has any internal
“reference thereto, by context or the like, is a mere memorandum of
“the name *of a person, whom perhaps we may intend to be the pur-
“chaser, and of the quantity and price of the goods, which we may
“perhaps, on the foot of such memorandum also intend to have been
“sold to the person so named in the catalogue. But in treating it as
“such memorandum throughout, we must intend also, (contrary to
“the fact,) that the goods were sold for ready money, and unattended
“by the circumstances specified in the conditions of sale. And the
“conditions of sale, though as unsigned they cannot be evidence of
“ the bargain itself, are yet capable of being given in evidence; and ac-
“cordingly have been so, as a part of the transaction between the par-
“ ties, and in order to show that it was on those conditions that the
“goods were sold. I am of opinion therefore that the mere writing
“on the catalogue, not being by any reference incorporated with the
“conditions of sale, is not a memorandum of a bargain under those
“conditions of sale.
“As to the next question on the statute; inasmuch as the half
“ pound sample of sugar out of each hogshead in this case is, by the
“ terms and conditions of sale so far treated as a part of the entire.
“bulk to be delivered, that it is considered in the original weighing
“as constituting a part of the bulk actually weighed out to the buyer ;
“ and to be allowed for specifically, if he should choose to have the
“commodity re-weighed; I cannot but consider it as a part of the
“goods sold wrider the terms of the sale, accepted and actually received
“ as such by the buyer. And although it be delivered partly alio in-
“ tuitu, namely, as a sample of quality, it does not therefore prevent
“its operating to another consistent intent also in pursuance of the
“ purposes of the parties, as exprehed in the conditions of sale, name
“ly, as a part delivery of the thing itself, as soon as in virtue of the
“bargain the buyer should be entitled to retain, and should retain it
“accordingly. is Q
CHAP. IV.] Sales by fluction, and by Brokers.
115
“As to the last point made in argument, viz. that there has been
“no effectual sale in this case made, because the commodity was in-
“capable of delivery till the king's duties were paid; and which were
“to be paid by the seller; I think that the sale, within the meaning
“ of the parties to the conditions, was complete, so as to cast the sub-
“ sequent risk of loss upon the buyer. The words, “time of sale,"
“ and ‘ highest bidder to be the purchaser,” all evidently relate to the
“ transaction of selling at the time and place of auction; which was
“ considered between them as effectual for the purpose of transferring
“ the property and the consequent risk of loss from the buyer to the
“seller, notwithstanding the intermediate ºright of custody or lien
“upon the goods in the crown until the duty should be paid. Be-
“sides, after earnest given, the vendor cannot sell the goods to ano-
“ ther without a default in the vendee: and therefore if the vendee
“ do not come and pay for and take away the goods, the vendor ought
“to go and request him: and then if he do not come and pay for and
“ take away the goods in a convenient time, the agreement is dissol-
“ved, and the vendor is at liberty to sell them to any other person.
“Per Holt, Ch. J. in Langford v. Administratria of Tiler, Salk. 113.
“So in Woy’s Maxims, 88. it is said, ‘If I sell my horse for money,
“‘I may keep him until I am paid, but I cannot have an action of
“ debt until he be delivered; yet the property of the horse is by the
“‘bargain in the bargainor or buyer. But if he do presently tender
“‘me my money, and I do refuse it, he may take the horse, or have
“ an action of detainment. And if the horse die in my stable between
“ the bargain and the delivery, I may have an action of debt for my
“‘money, because by the bargain the property was in the buyer.' On
“ this latter ground, therefore, I do not think that the sale is incom-
“ plete. And as the statute has been satisfied by a part delivery of
“ the goods sold, accepted by the buyer, I think the contract of sale
“valid as far as respects the statute also, and that the rule for a new
“trial should be discharged.”
Some of the judges on the bench conceiving that the Lord Chief
Justice had questioned generally the authority of the case of Simon v.
Motivos, desired to have it understood, that they concurred in the
judgment delivered in this case, on the ground that a part delivery of
the thing bought (which they considered the delivery to and acceptance
of the samples by the buyer to be in this case) took the case out of the
statute; leaving the authority of that case to stand as it did before
on its own ground, untouched and unsanctioned by the present de-
cision. But the Lord Chief Justice declared “that the only part of
# 126
“ that case which he meant to question, though it was unnecessary at 15 Wes. 521,
“present to decide upon it, was the opinion thrown out that auctions
“were not within the statute, of which he should reserve his approba-
“tion for future consideration. But as to the other point there de-
116.
Sales by Jiuclion, and by Brokers. [PART. I.
# 127
(v) 1 Esp.
Rep. 105,
“cided, that supposing sales by auctioneers or brokers to be within
“the 17th section of the statute, the auctioneer or broker must be
“taken to be the agent of both parties, the practice had become so
“settled, since the decision of that case, that it would be dangerous
“to shake it, and it was not his intention to question it.”
*So, a broker who is employed to sell goods for any person, and
who agrees for the sale of them, and gives to the purchaser and to his
employer a sale note, is to be considered as agent for both parties,
and such note is a sufficient note in writing within the statute of
frauds. *
Thus, in the case of Rucker v. Commeyer,(v) which was an action
of assumpsit, to recover the price of ten hogsheads of sugar sold by
the plaintiff to the defendant.
The case, as proved on the part of the plaintiff, was, that having a
quantity of sugars to sell, that samples were sent (as is usual) to the
plaintiff’s broker, The broker was called and proved, that the sam-
ples were sent to him and exposed together with other samples of
different sugars: that the defendant examined the samples, and fixed
on those for which the action was brought : that he asked the broker
from whence the sugars had come, and was answered, “ that they
“came from the north—from Scotland.” He asked the price, and
was told 638, per cwt. The broker said further, that he afterwards
brought the plaintiff and defendant together, when he supposed the
bargain was concluded, as he soon after received orders from the
plaintiff to make out sale notes of ten hogsheads to the defendant at
638. per cwt. These sale notes, he said, contained the price and
quantity of the sugar sold, and that one of them was usually given to
the buyer, and the other to the seller. The plaintiff, he said, had his
note from him, and the defendant had sent for his, which was deliver-
ed to him ; soon afterwards the defendant sent back part of the sugar,
saying, that he had contracted for new sugars, but that these were old.
He said that at the time of the 'sale, the defendant made no inquiry
whether the sugars were new or old.
The counsel for the defendant objected, that this contract was with-
in the statute of frauds ; he said that the broker being the agent of
Rucker, the plaintiff only, and there being no note in writing on the
part of the defendant, either by himself or any agent authorised by
him, nor proof of any direct and immediate contract of sale with him,
that it therefore was void under the statute for want of a note in writ-
ing:
'ſ
CHAP. IV.] Sales by fluction, and by Brokers.
11?
*Lord Kenyon, Ch. J. said, “ that it was of great importance not to
“break in on any decision which had taken place on the statute of
“ frauds, and cited the case of Simon v. Motivos, as ruling the pres-
“ent case. He said that the broker must be considered as the agent
* of both parties, and need not be constituted by writing, but that in
“this case he had in fact given the defendant a note in writing when
“he gave him the sale note, which he had accepted.”
[In Merritt v. Clayson, a memorandum made by a brokerin his mem-
orandum-book of the terms of the contract for the purchase of a quan-
tity of rye, no copy of which was given to the defendant, was held
sufficient to take it out of the statute. But in 15 East, 103. a mem-
orandum in writing of a contract for the purchase of flour by the de-
fendant of the plaintiff, a miller taken by the plaintiff’s rider, in his
common order book, in these terms, “ 19th Feb. 1811, of John Smith
64l,” which was explained by the witness to mean so much received
of the defendant in satisfaction of a former order, “do. 40 of 3–
“58s. ;” (which was explained to mean a new order for 48 sacks of
flour called thirds, at 58s. a sack) and this without any signature is
not a sufficient note in writing of the bargain to bind the defendant.
The case of Clauson's Ea:ecutors v. Bailey, 14 Johns. Rep. 484, sup-
ports the decision in Merritt v. Clayson.]
But on a sale of lands by auction, the auctioneer is not considered
as the agent of both parties ; and therefore his entering the name of
the buyer of a lot of land in his book as the purchaser, is not a note in
writing within the fourth section of the act.
%. 128
Thus, in the case of Stansfield v. Johnson,(w) the action was brought (w) 1 Esp.
for not completing a purchase of copyhold lands, which had been
Rep. 101.
See also
put up for sale by auction: the defendant was the best bidder, the Walker v.
lot was knocked down to him, and being asked his name, he said Constable, 1
Bos. & Pull.
Johnson, and his name was written in the catalogue against the lot, 306.2 Esp.
as the purchaser. The deposit not being then paid, was soon after ºe
p. 659. §
... jun.
demanded, but the defendant refused either to pay it or to complete 34. Ś. F.
his purchase, for which default the action was brought.
For the defendant it was insisted, that this was a case within the
statute of frauds. * *
The counsel for the plaintiff cited the case of Simon v. Motivos ;
and insisted that the auctioneer was, under the authority of that
case, to be deemed the agent of both parties, and his signing the name
of the defendant against the lot, a note in writing within the statute.
1Y 8
Sales by Auction, and by Brokers. [PART 1.
Eyre, Ch. J. was of opinion, that the case of Simon v. Motivos,
• applied to the sale of goods only, which was a distinct clause of the
statute of frauds, and that the present case was expressly within it,
and the plaintiff therefore could not recover.
[But the correctness of this distinction has been questioned by Ld.
Aldon, Ch. J. in 9 Wes. 234. 2 Taunton, 38.
So, in Kemeys v. Proctor, 3 Wes. & Beam. 57. Specific performance
decreed against the purchaser of an estate upon the note, made by
the auctioneer, as his agent lawfully authorized within the statute of
frauds.
Sales under a decree are not within the statute of frauds. 12 Wes.
466.
3Johns. Rep. Kent, Ch. J., “The statute requires the note or memorandum to be
399.
(c) 8 Term
Rep. 151.
* 129
(y) Ante, p.
HF9.
“signed by the party to be charged. The numerous cases admitting an
“agreement to be valid within the statute if signed by one party only
“ are all of them cases in which the agreement was signed by the par-
“ty against whom the performance was sought. Some of the cases
“ arose under the 4th, and others under the 17th section of the English
“statute, but the words are in this respect, similar, and require the
“ same construction.” 3 Johns. Cas, 60.2 Caines’ 120. 5 Winer, 527.
“ 6 East. 307.]
So, in the case of Symonds v. Ball,(a) where the aftermath of land
was sold by auction, by the Corporation of a Borough, and *the
town-clerk, who acted as agent for the sellers, wrote down the name
of the purchaser in the printed catalogue, and the price to be giv-
en, for which the purchaser at the same time gave his promissory
note. The aftermath was vested in the corporation by the stat. 34
Geo. III. which enacts, “that all the aftermath within the borough of
“Launceston common lands called Hay, should be vested in the may-
“ or and aldermen of the said borough for the time being in trust, ne-
“vertheless to sell and dispose thereof, or otherwise to lease or de-
“mise the same by writing to any person, &c. for the best price or
“rent that could be had for the same.” -
It was objected that this was not a sale or demise in writing as re-
quired by the act of parliament. On the other side it was contended,
that this was a sale and demise in writing, the town-clerk having
signed the agreement on the part of the corporation, and the plain-
tiff having on his part given a note in writing for the purchase mon-
ey : And the case of Simon v. Motivos,(y) was cited as being in
point.
CHAP. IV.] Sales by Auction, and by Brokers.
119
But the court were clearly of opinion, that neither the memoran-
dum, so made by the town-clerk, or the note given by the purchaser,
could be deemed a sale or demise in writing, so neither could they
be joined together for that purpose.
[So, a sheriff’ssale of lands is within the statute of frauds and re-
quires a deed or note in writing specifying with certainty the lands
sold and who was the purchaser. Jackson v. Catlin; 3 Johns. Rep.
248. &
Executory agreements in writing, not under seal, may before
breach be discharged and abandoned by a subsequent unwritten
agreement, as well where the original contract is required by the
statute of frauds to be in writing, as where a writing is unnecessary.
The statute of frauds contains no provision respecting the dissolu-
tion of agreements ; it makes a written agreement necessary, in many
cases, in order to establish and enforce agreements, but as to the dis-
charge or abandonment of executory agreements the statute is en-
tirely silent leaving the case as it stood at common law. The 17th
section enacts, in certain cases, that “a contract for the sale of goods
“shall not be allowed to be good unless some note or memorandum in
“writing, of the bargain be made and signed,” &c.; but an agreement
to waive the contract, before breach, is not a contract for the sale of
goods, and may therefore be binding, though not reduced into writing.
So the 4th section only provides, that “no action shall be brought
wpon any contract or sale of lands,” &c., but it does not proceed to
enact, in case an action is brought, and the defence set up is a disso-
lution and abandonment of the agreement, that some note or written
memorandum is also necessary to give effect and validity to such sub-
sequent agreement. See Phil. evid. 445.
A parol agreement to extend the time of performance of a contract
for the conveyance of land is void. Hasbrouck v. Tappan, 15 Johns.
Rep. 200.
It seems to be the better opinion that an agreement may be resisted
in equity on the ground of a parol waiver ; but the proof must be ve-
ry clear. 1 Mad. Chan. 323. *.
Thus in a late case, where the plaintiff prayed a specific perform-
ance of an agreement for a lease, under which the plaintiff had taken
possession, and afterwards, as the defendant stated in his answer, the
parties mutually abandoned the terms of the written agreement and
made another agreement by parol, the Master of the Rolls, observing
upon the argument of the defendant, “that the agreement was waiv-
“ed, and that a written agreement may be so far waived by parol, that
“ the court will refuse the interposition of its equitable Jurisdiction to
“ enforce it,” said, as at present advised, I incline to think upou
the doctrine of this court, such would be the effect of a parol waiver
Sales by Muction, and by Brokers. [PART I.
clearly and satisfactorily proved. The waiver spoken of in the cases is
an entire dissolution of the contract, restoring the parties to their for-
mer situation. Price v. Dyer, 17 Wes. 356.
But when the contract is broken, or a debt is due, a discharge
which is to operate by its own validity, without any regard to the con-
sideration apon which it is made, must be by a writing under seal :
and this is specially requisite, when the discharge is by an agency
authorised by a writing under the seal of his principal—Bendel &
al. v. Sampson & al. 11 Mass. Rep. 42.]
CHAPTER W.
of THE STAMPING or contRACTs, AGREEMENTs, BILLs, NoTEs, &c,
THE statute 44 Geo. III. c. 98. after reciting, “Whereas the
“several rates and duties upon stamped vellum, parchment, and pa-
“per, and upon other articles and things under the care of the com-
“missioners for managing the said duties, are become very numer-
“ous, intricate, and complicated, and it will tend to give facility to
“business and contribute materially to the publick benefit to con-
“solidate and simplify the same ;” enacts, “ That from and after the
“10th day of October, 1804, all former duties shall cease; and(a) in (a) Section 2,
“ lieu thereof the several sums of money and duties as they are res-
“pectively inserted, described, and set forth in the column of the
“schedules marked A. and B. intituled England ; shall be raised,
“levied, collected, and paid.” *
The duties payable on agreements, &c. which are the subject of the
present work, are all contained in schedule A. and are as follow :
SchEDULE A.
Award under hand and seal, or under hand only, made in England,
and whether the same shall or shall not be enrolled of record in or
made a rule of any court, upon any number of words therein, not
amounting to thirty common law sheets (calculated at seventy-
two words to each sheet) of which any such award shall consist
39. 1 10 0
And for every entire quantity of fifteen common law sheets, (cal-
culated at seventy-two words to each sheet) of which any
such award, together with any schedule, receipt, "instrument, # 131
or other matter put or indorsed thereon or annexed thereto,
shall consist, (over and above the first fifteen common law
sheets,) a further duty of gº 39. 1 0 0
Charter-party, memorandum for charter, or any otherinstrument, note,
letter, or other muniment or writing between the captain, master,
er owner offiny ship or vessel, and any merchant, trader, or other
person, in respect to the freight or conveyance of any money,
goods, wares, merchandize, or effects, laden or to be laden on
board any such ship or vessel, upon any number of words therein,
Vol. I. £16]
1:32 Of the Stamping of Contracts. [PAar I.
Hot amounting to thirty common law sheets, (calculated at seven-
ty-two words to each sheet) of which the same shall consist
49. 1 10 0
And for every entire quantity of fifteen common law sheets
(calculated at seventy-two words to each sheet) of which
any such charter-party, memorandum for charter, or any
other instrument, note, letter, or other muniment, or writing,
last above mentioned, together with any schedule, receipt,
instrument, or other matter, put or indorsed therein, or an-
nexed thereto, shall consist, (over and above the first fifteen
common law sheets,) a further duty of fº. 1 0 0
Agreement made in England under hand only, where the matter there-
of shall be of the value of 20l. or upwards, whether the same
shall be only the evidence of a contract, or obligatory upon the
parties from its being a written instrument, upon any number
of words, not amounting to thirty common law sheets, (calcu-
lated at seventy-two words to each sheet) of which any such
agreement shall consist fº. 0 16 0
And for every entire quantity of fifteen common law sheets, (calcu-
lated at seventy-two words to each sheet.) of which any such
agreement, together with every schedule, receipt, instrument,
or other matter put or indorsed thereon or annexed thereto, shall
consist, (over and above the first fifteen common law sheets,)
a further duty of fº. 0 16 9
Specia Ea:emptions. (b
(b) Pide 23 p p (b)
s: *:: Memorandum or agreement for any lease at rack-rent of any mes-
the like eac- suage under the yearly value of five pounds.
emptions are
made Memorandum or agreement for the hire of any labourer, artificer,
manufacturer, or menial servant.
*Memorandum, letter, or agreement, made for or relating to the sale
# 132 of any goods, wares, or merchandize.
Memorandum or agreement made between master and mariners of
any coasting vessel for wages.
Letter or letters, containing an agreement in respect of any merchan-
dize, or evidence of such an agreement which shall pass by the
post between merchants and other persons earrying on trade or
commerce, and residing and actually being, at the time of send-
ing such letters, at the distance of fifty miles from each other.(*)
Bill or note of lading for any goods or merchandize to be exported.
48. Q 3 0
Protest º tº gº º 0 5 0
Notarial act, any, whatsoever 3* * º 0. 5 0
Procuration was a * º 1 0 0
*— —t —º -º-
(*) Wide 32 Geo. III. c. 51, where the same exemption is made,
CHAP. W.] of the Stamping of Contracts. 123
Promissory note, or other note, for the payment of money to the bear-
er on demand (which may within three years after the date there-
of, but not at a later period, be re-issued from time to time after
payment at any place) where the sum expressed therein, or made
payable thereby, shall not exceed one pound and one shilling
39.0 0 3
Where the sum shall exceed one pound and one shilling, and not
exceed two pounds and two shillings 3.0 0 6
where the sum shall exceed two pounds and two shillings, and
not exceed five pounds and five shillings £.0 0 9
where the sum shall exceed five pounds and five shillings, and
not exceed twenty pounds * sº 38.0 1 0
Bill of exchange, draft, order, or promissory or other note, for the pay-
ment of money to the bearer on demand, where the sum ex-
pressed therein, or made payable thereby, shall amount to forty
shillings, and shall not exceed five pounds and five shillings
£.6 0 8
Bill of exchange, draft, order, or promissory or other note, payable
otherwise than to the bearer on demand, where the sum expres-
sed therein or made payable thereby, shall amount to forty shil-
lings, and shall not exceed five pounds and five shillings
* tº 29, 6 t ()
Bill of exchange, draft, order, or promissory or other note, for the pay-
ment of money where the sum shall exceed five pounds five shil-
lings, and not exceed 30l. 39.0 1 6
where the sum shall exceed 30l. and not exceed 50l. £.0 2 0'
*where the sum shall exceed 50l. and not exceed 100l. * # 133
39.6) 3 0
where the sum shall exceed 100l. and not exceed 200l.
39.0 4 0
where the sum shall exceed 200l. and not exceed 500l.
4. 39.0 5 0.
where the sum shall exceed 500l. and not exceed 1,000l.
39.0. 7 6
where the sum shall exceed 1,000l. 0 10 0
Foreign bill of exchange(c) which shall be drawn in sets according to (c) This
the custom of merchants, where the sum expressed in such bill, ::::: to.
or made payable thereby, shall not exceed 100l. for each and eve- foreign bills
ry bill in each set $ 39.0 1 0 : ".
So drawn in sets, where such sums shall exceed 100l. and not exceed nºt to achias
200l. for each and every bill in each set 49.0 2 0 are made 4-
broad. Wide,
So drawn in sets, where such sum shall exceed 200l. and not exceed ºf ºn Rep.
500l. for each and every bill in each set 49.0 3 0 601.
So drawn in sets, where such sum shall exceed 500l. and not exceed
1,000l. for each and every bill in each set &.0 4 &
i24 Of the Stamping of Contracts. [PART I.
So drawn in sets, where such sum shall exceed 1,000l. for each and
every bill in each set #9.0 5 0
Conditional Ea'emption.
Bills of exchange, promissory and other notes and bills issued by the
governor and company of the Bank of England, exempted on con-
dition of the said governor and company paying yearly 32,000l.
Special Eacemptions,
Drafts and orders for the payment of money to bearer on demand up-
on any banker, or person or persons acting as a banker, and resid-
ing or transacting the business of a banker within ten miles of the
place at which such draft or order shall be drawn or given, and
which place shall be expressed in or upon such draft or order.
Bill, remittance bill, certificate, and all other bills of what nature or
description soever, drawn by commissioned officers, masters or
surgeons in the navy, for wages or pay, or by the commissioners of
his majesty’s navy, or by the commissioners for victualling his
& 134 . *majesty's navy, or by the commissioners for taking care of sick
and wounded seamen, or by the commissioners for managing the
transport service, upon and payable by the treasurer of his majesty’s
navy.
By the statute 31st Geo. III. c. 25. s. 19. (which is still in force,
(d) vide 44 except as to the duties,)(d) it is declared, that no bill of exchange,
ūčo. III. c. promissory note, or other note, draft, or order, nor any receipt, dis-
98. S. 8, charge, acquittance, note, or memorandum, unless duly stamped, shall
be received in evidence in any court of justice whatever: and the
commissioners of stamps are thereby prohibited from stamping any
bill of exchange, &c. after it is issued. If, however, the commission-
ers exceed their authority, and stamp a bill, &c. after it is issued, it
then becomes a valid instrument; and, in an action brought thereon,
the court will not inquire how, and at what time it was stamped.(*)
(e) This see- By the statute 39 Geo. III. c. 107. sect. 4,(e) it is enacted, “That
ion of the act “the duties thereby granted on any bill of exchange, promissory note,
*:::/* “ or other note, shall be paid by the person or persons giving the
&eo. III. c. “ same.” And by sect. 5. “No bill of exchange required to be stam-
98. S. 8. “ ped by that act shall be re-issued under any pretence whatever.”
(f) This and .- tº
º, ſºns By the stat. 43 Geo. III. c. 127. s. 5. (f) after reciting that by the
likewise in statute 37 Geo. III. c. 136. s. 1. it is enacted, “ that it shall be lawful.
orce by the
44 Geo. IIP.
c. 98. 8, 8. “ -mºur------
(*) Wright v. Raley, Peake, 173.
CHAP. V.] Agreements, Bills, Motes, &c. 125
“for the commissioners, or their officer, upon payment of the duty
“ and a penalty of five pounds in the said act mentioned, to stamp
“any vellum, parchment, or paper, whereupon any instrument, mafter
“or thing, (except bills of exchange, promissory notes or other notes,
“ drafts, or orders) shall have been or shall be engrossed, printed, or
“written, liable in respect thereof to be stamped, with a stamp or
“stamps of a particular denomination or value, and whereon there is,
“ or shall be impressed any stamp or stamps of a different denomina-
“tion, but of an equal or greater value, in certain cases therein men-
“tioned.” And in the same section, after reciting, “whereas it is
“expedient to permit the same to be done without payment of the said
“penalty,” it is enacted, “that it shall ºbe lawful for the said com-
“ missioners, or their officer, from and after the passing of this act, to
“stamp, or cause to be stamped, any such vellum, parchment or pa-
“Per (except as aforesaid) in any of the cases herein before mention-
“ed, without payment of the said penalty of five pounds required by
“the said recited act; and every instrument, matter or thing so
“stamped, shall have and be deemed of the like force and validity as
“if the said penalty of five pounds had been paid pursuant to the di-
“rection of the said act.” e
* 135
And by the 6th section of the same statute, it is enacted, “ that ev-
“ery instrument, matter, or thing, although stamped or impressed
“with any stamp of greater value than the stamp required by law,
“shall be valid and effectual, provided such stamp shall be of the de-
“ nomination required by law for such instrument, matter, or thing:
“any statute, law, or usage to the contrary notwithstanding.”
Before the passing of this statute, an action was brought upon a pro-
missory note by the indorsee, and at the trial the stamp on the note (g) JManning
appeared to be a seven shilling deed stamp. Lord Kenyon, Ch. J. v. Livie, sit-
held, that the note could not be received in evidence and the plaintiff º after
t ich. Term
was accordingly nonsuited.(g) 1796. Bayley
* on bills, 20.
So, in the case of Chamberlain v. Porter,(h) it was held, that a #: :* also
promissory note drawn before the 37 Geo. III. c. 136, upon a receipt Price, East's
gº * º * Rep. 55. S. P.
stamp of equal value with that required for a promissory note, is not tºº.
available in law: Rep. C. B.30.
But see Tay-
tº gº * lor v. Hague,
Upon the clause of exemption in former acts, in favour of drafts 2 East's Rep.
drawn on bankers, it has been holden,(i) that the person on whom a *...Allen v
draft is drawn, must be a bona fide banker; and that a draft on aban- Keeves, 1
ker, post-dated, and delivered before the day of the date, though not * #.
intended to be used till that day, must be stamped. And, according ºcii v. Bºn-
to the special exemptions in the 44 Geo. III. c. 98.(k) the place where tº Bº.
tº & Pull. 559.
the draft is drawn, ought to be truly stated. (k) Wide ants
133.
#26
Of the Stamping of Contracts, [PART I.
# 136
# 1
f
By the stat. 44 Geo.III. c.98. s. 20. it is enacted, “That no prom-
“issory note or other note for the payment to the bearer on *demand,
“ of any sum of money exceeding the sum of twenty pounds, (save
“ and except promissory notes or other notes for the payment by or
“ on account of the Bank of Scotland, or Royal Bank of Scotland, or
“ the British linen Company, to the bearer on demand, of the sum of
“one hundred pounds) shall be re-issued on any pretence whatever;
“but when, and as soon as any such note for the payment of any sum
* of money exceeding twenty pounds, save and except such note, for
“one hundred pounds as aforesaid, shall be paid by or under the or-
“der or authority of the person or persons by whom or on whose ac-
“count the same was signed, or his, her, or their executors, adminis-
“trators, or assigns, or in pursuance of any direction, nomination, or
“appointment for the payment thereof, contained or expressed in or
“upon any such note, the same shall be taken and construed to be
“thereupon wholly discharged, vacated, and satisfied, and shall be
“no longer negotiable or transferable to any intent or purpose what-
“ever, but shall be forthwith cancelled; and if any person or persons
“shall issue, utter, or negotiate, or cause to be issued, uttered orne-
“gotiated, any such promissory note, or other note after any such
“payment thereof as aforesaid, or if any person or persons, by whom
“such payment as aforesaid, shall be made, shall neglect or refuse to
“cancel the same, or cause the same to be cancelled, every such per-
“son or persons so offending shall, for every such offence, forfeit the
“sum of twenty pounds.”
And by the 24th section of the same actitis enacted, “That in any
* case where it shall appear to the commissioners of his majesty's
“stamp duties, upon oath or affirmation, to be made before any one
“ or more of the said commissioners, or otherwise to their satisfaction,
“that any instrument, matter or thing whatsoever, except bińs of ex-
“change, promissory notes or other notes, drafts, orders, or receipts,
“required by law to be stamped, hath not been duly stamped with a
“stamp of the value by this act required, either by accident or inad-
“vertency, or from urgent necessity or unavoidable circumstances,
“and without any wilful delay or intention in any party to evade the
“duties by this act imposed, or to defraud his majesty thereof, and
“such instrument, matter and thing shall be brought to the said com-
“missioners to be stamped within twelve months after the making or
“execution thereof, it shaft be lawful for such commissioners to remiè.
“the penalty, or any part thereof, as they shall deem expedient.”
It should here be observed, that the cases which will be brought be-
fore the reader in the remaining part of this chapter have all "been de-
termined upon former stamp acts. But as those acts relate to duties
payable on the same kind of instruments as are mentioned in the pre-
CHAP. W.] JAgreements, Bºils, Notes, &c,
13?
sent stamp act, 44 Geo. III, c. 98. and as this act uses nearly the
same words as the former acts, it is conceived the following cases will
be found useful in the construction of the present stamp act. I shall
therefore consider them in the following order:
. Of Agreements made abroad.
. Of a written fleknowledgment of a Debt.
. Of distinct and separate Agreements on one Stamp.
. Of altering an Agreement, &c. after it is executed.
. Of the Ea'emption of the Duties upon Contracts relating to the
Sale of Goods.
6. Of the Exemption of the Duties upon Letters passing by the Post
between Merchants and others, &c.
:
5
*ºam-
1. Of Agreements made abroad.
In the case of Ximenes v. Jaques,(l) a wager was made of 100 gui- () 1 Esp.
neas, and the expenses of travelling “ that the plaintiff would not go
“240 miles in 24 hours, in a post-chaise and pair of horses, being al-
“lowed to change post-chaises and horses as often as he pleased; the
“expenses not to exceed the usual expenses of travelling on the post
“roads in England.” The plaintiff performed the journey in 21
hours and a half.
The plaintiff and defendant were officers on board the Belvidere
East-Indiaman; the wager was made at sea, and the paper contain-
ing the particulars of it was dated “Ship Belvidere, October 2, 1793,
“long. 63. lat. 37. ;” and the agreement had been, in fact, there re-
duced into writing.
This paper was produced, and not being stamped, was objected to,
on the ground that the declaration being on an agreement, the paper
containing that agreement should have an agreement stamp.
It was answered, that the agreement bore date at sea, and there-
fore not being made within this kingdom, a stamp was not required.
*Lord Kenyon, Ch.J. was of that opinion, and received the agree-
ment.
:*
Rep. 311.
# 138
So, in the case of Winbled v. Malmbergſm) which was an action on) 1 Ep.
of assumpsit for seamen’s wages. The plaintiff and defendant were Rep. 454.
both Swedes, and the vessel a Swedish vessel.
12$
Of the Stamping of Contracts, [PART I.
(n) 2 Esp.
Rep. 528. 7
Term Rep.
241. S. C.
# 139
On the trial, a paper was produced which was made originally in
Sweden ; it contained the ship’s articles, with the names of the sea-
men on board, and the wages they were to receive. It also contained
an account of any change that took place in the crew, such as, if any
of them had deserted, those who had been hired in their stead, in the
course of the voyage:—Among others, the plaintiff had been hired in
Jondon on the 1st of June, 1795; his name was there found en-
tered, and the entry of the wages he was to receive was four dol-
lars per month.
By the regulations of the court of Sweden, this paper is lodged in
the consul’s hands in London.
. It was contended for the plaintiff that this paper should not be
given in evidence, as it was offered in proof of an agreement for a
hiring at a certain rate, and was not stamped. £º
Eyre, Chief Justice, overruled the objection. His Lordship said,
it was not an agreement between the parties, but a regulation made
by the court of Sweden for public purposes, and evidenced by their
consul.
But if an instrument be executed in a foreign country, and by the
laws of that country a stamp is required, the party who holds it can-
not recover upon it in this country, unless it is stamped with the prop-
er stamp required by the laws of the foreign country.
Thus, in the case of fllves v. Hodson,(n) which was an action by the
plaintiff, who was a sailor, against the defendant, who was a captain
of a West-India ship, called the Neill Malcolm, to recover the amount
of wages for the voyage or run from Jamaica to London. On the trial
it was proved that the defendant engaged the plaintiff on the 25th day
of July, 1796, at Savannah le Mar, in Jamaica for the homeward
voyage, for the sum of fifty guineas: and gave him the following
note :
“*Three days after the arrival of the ship Weill Malcolm, at her
“moorings in the river Thames, I promise to pay William Alves,
“fifty guineas, if he does his duty as an able seaman on board the
“ said ship.
“J. Hodson.
“Jamaica, July 25, 1796.” #
The plaintiff proved the defendant’s hand-writing to the note, and
the necessary averments in the declaration which entitled him to re-
COWeſ.
GHAP. W.] Agreements, Bill, Notes, &c.
129
In answer to this case the defendant called a clerk, from the office
of the secretary of state, who produced the acts of assembly of the
island of Jamaica, by one of which a stamp duty of 18. 3d. was im-
posed on every sheet, or piece of paper, whereon was written any
promissory note above 20l. and not exceeding 50l., and so progres-
sively. The note in question not being stamped, the counsel for the
defendant contended it could not be given in evidence.
On the other side it was contended, that this was a mere revenue
law of that country, by which the courts of this country were not
bound.
But Lord Kenyon, Ch. J. said, “In deciding on instruments
“made abroad, I think we are bound to consider the laws of tha'
“ country where the contract is made ; and if they are not obligato-
“ry by such laws, they cannot be enforced here.— By the law of Ja-
* maica, given in evidence, the instrument produced would be invalid
“ for want of a stamp. I am therefore of opinion, that we cáññot
“ give it validity here. However, let the plaintiff take a verdict, with
“liberty for the defendant to set it aside, and that a monsuit be-en-
* tered.”
In the following term a motion was made to set aside the verdict,
and for leave to enter a nonsuit. The court were of opinion, that
the paper writing was a promissory note, though not negotiable, and
as it was not stamped, according to the laws of Jamaica, it could not
be received in evidence. But as there was a count upon a quantum
merwit which was not considered at the trial, the court ordered a new
trial in order to give the plaintiff an opportunity of recovering on that
general count.
*ººme
2. Ofa written fleknowledgment of a Debt.
A mere written acknowledgment of a debt need not be stamped.
* 14
*Thus, in the case of Fisher v. Leslie (o) which was an action for (o) 1 Esp.
money lent, and for money due on account stated—And to establish *P. *
part of the demand, the plaintiff produced a slip of paper, signed by the
defendant in the following form : “I O U eight guineas.” It was
contended, on behalf of the defendant, that this paper ought to have
been stamped either as a promissory note, or a receipt for money.
Wol. I. [17]
180
Of the Stamping of Contracts, [PART. I.
(p) Peake's
Cas. N. P.
127.
* 141
But Eyre, Ch. J. said, that he was of opinion, that it was merely an
acknowledgment of a debt, and neither a promissory note, or a re-
seipt; and admitted it in evidence.
*º-
3. Of distinct and separate Agreements on one Stamp.
In the case of Robson v. Hall,(p) which was an action of assumpsit
on an agreement, whereby the defendant “betted the plaintiff 150l.
“to 100l. that he did not find two geldings to trot 32 miles in two suc-
“cessive hours, carrying the said Mr. Robson, and no one else.” It
was afterwards, by an indorsement on the agreement, agreed, “that
“ the bet should be doubled.”
The declaration contained, 1st. a count on a bet of 300l. to 200l.;
2dly. On the first bet of 150l. to 100l.; and lastly, a count on anoth-
er bet of 150l. to 100l.
There was, however, but one stamp on the agreement, and it was
objected that there ought to have been two stamps ; for that they
were distinct and separate transactions.
And of this opinion was Lord Kenyon, Ch. J. But he ruled, that
as there was a count on each agreement, the plaintiff might recover
one sum of 150l. on the agreement which was stamped.
*ººf ºs
4. Of altering an Agreement, &c. after it is executed.
When a bill of exchange, or written agreement has been once ex-
ecuted by the parties, any subsequent alteration therein will require
a new stamp.
*Thus, in the case of Bowman v. Nichol,(q) which was an action by
the indorsee of a bill of exchange against the acceptor. It appeared,
at the trial, that the bill, which was drawn on a proper stamp, was
originally dated on the 2d of September, 1793, payable twenty-one
days after date, and while it continued in the hands of the drawer it
was altered, with the consent of the acceptor, to be made payable
(q) 5 Term Rep. 537. 1 Esp. Rep. 81. S. C. See Stonelake v. Babb, 5 Burr.
2673. S. P. and see the stat. 35 Geo. III. c. 63. s. 13. where it is ea pressly pro-
vided that (under certain restrictions) any alteration in a policy of assurance, af-
ter it is executed, shall not require an additional stamp duty.
GHAP. V.] Agreements, Bills, Notes, 3's.
181
fifty-one days after date, and with the like consent was again restored
to twenty-one days after date, and the date of it brought forwärd from
the 2d to the 14th September. This last alteration was made on the
30th September, the bill being then over due, according to the original
tenor of it. After all these alterations it was negotiated, and came
into the hands of the plaintiff. The objection taken at the trial was,
that the last alteration made it to all intents and purposes a new bill,
and therefore it ought to have been drawn on a new stamp ; other-
wise, after a bill had been once drawn on a proper stamp between the
same parties, they would never make use of a new stamp again for
any subsequent transaction of that sort ; but it would only be necessa-
ry for them to alter the dates, and give the instrument a new currency,
Lord Kenyon, Ch. J. was of this opinion, and nonsuited the plain-
#iff.
And the court, upon a rule obtained to show cause why the non-
suit should not be set aside, were clearly of opinion, that the nonsuit
was proper; for that, at the time when the last alteration was made,
the operation of the bill, as it originally stood, was quite spent; that
it was a new and distinct transaction between the parties; and that
therefore there ought to have been a new stamp.
[But in Kershaw v. Cow, 3 Esp. n. P. Cas. 246. and 1 Cole v. Pas-
kin ; 12 East, 471, the principal established is, that where an instru-
ment on stamped paper has at first been drawn by mistake in a form
not according with the intention of the parties, it may be corrected
without a new stamp : but if the parties have altered their intention,
and make a new instrument different from that originally contemplat-
ed, there a new stamp is necessary. Bathe v. Taylor, 15 East. 416.]
***
5. Of the Ea'emption of the Duties upon Contracts relating to the sale
of Goods.
Upon the exemption made in the stat. 28 Geo. III. c. 58, s. 4. re-
lating to the sale of goods, (and which is precisely the same as that
contained in the 45 Geo. III. c. 98) it has been determined, that an
agreement to indemnify from any loss on the resale of “goods purchas-
ed by a broker for his principal, need not be stamped, it being a con-
tract relating to the sale of goods.
$ 142
+) 3 Terna
(
Thus, in the case of Curry v. Edensor,(r) the plaintiff through the Rep. 524
medium of the defendant his broker, had made two purchases of cot-
ton, the one of 50 bags from Bateman, the other of 40 bags from En-
twisle ; and the defendant engaged for halfper cent, to indemnify the
plaintiff from any loss on the resale of them.
Of the Stamping of Contracts, [PART I.
13 East, 7.
: ... Wide
3.85gh v. Ban-
ner, 1 Esp.
Rep. 403.
* } 4 3
(f) 2 Bos. &
Pull.452.
At the trial, before Lord Kenyon, the plaintiff gave parol evidence
of the contract of indemnity between him and the defendant; and
for further proof called upon the defendant to produce his book, upon
inspection of which it appeared that the defendant had entered a
minute of the contract between the plaintiff and Bateman and En-
twisle, for the purchase of the cottons, at the bottom of which had been
written the letter “G,” which was a private mark of the defendant’s,
and was explained by his clerk to mean guarantee. It was objected,
on the part of the defendant, that this entry, having been produced as
written evidence of the contract, ought to have been stamped by virtue
of the 23 Geo.III. c. 58. which requires a stamp on every piece of pa-
per upon which any agreement shall be written, whether the same
shall be only evidence of the contract, or obligatory on the parties
from its being a written instrument.
This question was reserved for the opinion of the Court of King’s
Bench, and upon argument it was observed by the counsel for the de-
fendant, that the written entry ought to have been stamped, by virtue
of the first section of the act, and could not be considered as coming
within the exemption in the fourth section, which meantonly contracts
relating to the sale of goods as between vendor and vendee, and could
not be taken to extend to other than the contracting parties.
But the court were of opinion, that this was not such an agreement
as was required to be stamped: for it was made at the time of the
original contract of sale of the goods, and related to the sale of them.
But an agreement between merchants, that one shall take a share in
the outfit of a ship and the adventure, is not an agreement for or re-
lating to the sale of goods, within the proviso contained in the 4th sec-
tion of the 23 Geo. III. c. 58.(s)
*So, in the case of Waddington and others v. Bristow and others,
executors of Simmons,(t) which was an action of assumpsit, for breach
of the following agreement :
“Agreed this 13th of November, 1799, to give the undermentioned
“gentlemen at the rate of 10l. per 100 weight, for the quantities of
“hops attached to their respective names, to be in pockets and deli-
“vered at Whitstable,
(Signed)
“Henry Simons, “ Wm. Francis, all his growth
“ Wm. Francis, &c. &e. about 23 acres.
[Herefollowed several other “Henry Simmons, do. 22.
signatures.] [Here followed several other
names with their respective
qualities]
(Signed) “S. F. Waddington & Co.”
GHAP. W.] Jāgreements, Bills, Notes, &c.
133
On the trial it was proved, that it was customary in Kent for pur-
chasers of hops to enter into agreements while the hops are growing
for the delivery at a future time, and that when no particular time is
specified in such agreements for the delivery, it is understood to be
within a reasonable time after the hops are picked and dried. On the
production of the above agreement it was objected that it could not
be received in evidence, inasmuch as it was not stamped ; and the
learned judge (w) being of that opinion, the plaintiffs were nonsuited. (u) Hotham
And the Court of Common Pleas, upon a rule to set aside the non-
suit, concurred in opinion with his Lordship: the rule was therefore
discharged.
Lord ºfflvanley, Ch. J. said, “By this contract the vendor under-
“took to sell to the plaintiffs the whole produce of twenty-two acres
“in his possession, and if he had sold one bushel to any other person,
“he would have been liable to an action. He agreed to sell the whole
“ produce of the land in a certain state: the first term of the agree-
“ment is, that he will sell the whole produce of the land; and the
“second, that it shall be in a certain state at the time of delivery. It
“It is therefore an agreement for the sale of goods, wares, and mer-
“chandize, and something more: I think the agreement is not within
“ the exemption of the statute.”
Heath, J. “It appears to me that the subject matter of this agree-
“ment must be taken with reference to the time at which the contract
“was made. Now at that time the hops did not exist in the state of
“goods, wares, and merchandize.”
*Rooke, J. “The object of the legislature in introducing the ex-
“ception of the fourth section was to prevent the duty which had been
“imposed by the first section upon all agreements generally, from im-
“pending ordinary commercial transactions. But the subject of the
“present agreement is a speculative bargain relative to things not in
“esse at the time when the contract was made. It does not appear
“to me therefore to fall within the meaning of the exception.”
Chambre, J. “There is a little ambiguity in the terms of this agree-
“ment, but that has been cleared up by the parol testimony. Indeed
“ the declaration puts the matter beyond all doubt, for it states the con-
“tract to be for the specific produce of twenty-two acres of land, al-
“leged to be in the possession of the vendor. Now the statute only
“exempts contracts for the sale of goods, wares, and merchan-
“dizes. But this contract gives the vendee an interest in the whole
“produce of that part of the vendor’s farm which consists of hop
“grounds. If the vendor had grubbed up the hops, or had refused to
“gather or dry them, it would have been a breach of the contract.—
* 144
13%
Of the Stamping of Contracts, [PART I,
(c)3 East's
Rep. 303.
# 145
(w) 1 Stra.
506. et ante,
92.
“Though I admitthat a contract for the sale of so many hops as twen-
“ty-two acres might produce, to be delivered at a distant day, might
“fall within the exemption efthe act, notwithstanding the hops were
“ not in the state of goods, wares, and merchandizes, at the time of
“ the contract made ; yet I cannot think the present agreement with-
“in that exemption, since it gives an interest to the vendee in the
“produce of the vendor's land.”
So, in the case of Buxton and another v. Bedall and another, (v)
which was also an action upon the following agreement:
“Joseph and Thomas Bedall, order of Burton and Campsty, four
“mules, 228 spindles each, 3 wheels, 16 inch rollers, and one 15 inch,
“13inch spindles, iron top roller, a sufficient number of change pin-
“ions, twist wheels from 30 to 42 teeth, advancing two each time, a
“set of clearers for each wheel, leaded and covered. The wheels are
“to be complete and good, 5s. 9d. per spindle; payment half ready
“money, and the remainder in three months; a dozen of change rol-
“lers for each wheel to be given in. Two to be made in six weeks,
“ and the remaining two in eight weeks from this time.
Joseph and Thomas Bedall,
* Manchester, 11th Nov. 1801.” *
*The Court of King's Bench were of opinion, “ that this contract
“did not come within the exception of the act, and therefore ought to
“be stamped, being a contract not for or relating to the sale, but to
“the making of goods, and for work and labour to be done. It was a
“contract in fieri; as in the case of Towers v. Osborne,(w) where
“the defendant having bespoke a chariot which he refused to take
“when it was made, it was objected to an action brought to recover
“the value of it that the case was within the statute of frauds, noth-
“ing being given for earnest nor any note in writing; but the Lord
“Chief Justice ruled it not to be within the statute, which related on-
“ly to contracts for the actual sale of goods, which that was consid-
“ered not to be, but a mere executory contract for work to be done.
@ Wide ante, “That in the case of Curry v. Edensor,(2) the agreement related to
142.
(y) 5 Term
Rep. 176.
“the sale of goods then made.”
6. Of the exemption of the Duties upon Letters passing by the Post
between Merchants and others, &e.
In the case of Mackenzie v. Banks,(y) which was an action on the
defendant’s undertaking to pay the debt of his mother, who was in
trade. The debt arose in the course of her business, which the de-
fendant assisted her in carrying on, though without any share in it,
GHAP. W.] Jagreements, Bills, Notes, &c.
135
The evidence of the undertaking was a letter written by the defend-
ant to the plaintiff. And the question was, whether it ought to have
been stamped, as all agreements in writing are required to be by the
23 Geo.III. c. 58. “whether the writing be only evidence of the con-
“tract, or obligatory upon the parties from its being a written instru-
“ment;” or whether this letter came within the exception of the 32
Geo. III. c. 51. s. 1. by which it is provided that the first mentioned
act “shall not extend to make liable to the said stamp duty any letter
“passing by the post between merchants, or other persons carrying
‘‘ on trade or commerce in this kingdom, residing at 50 miles distance
• from each other.” At the trial, the lºtter had been received in evi"
dence unstamped by Lord Kenyon, Ch.J. and the plaintiff obtained a
verdict.
A motion was afterwards made to set aside the verdict, on the
ground that the letter did not fall within the terms of the exception
in the latter statute. And it was argued that the defendant was nei-
ther a merchant or trader; he had no concern in his mother’s “busi-
ness. The letter was not written by him as agent for his mother, in
which case, perhaps, the exception might have extended to him, but
in his own individual character to pay the debt of another. His pro-
mise therefore was like that of any other indifferent person. The le-
gislature only intended to protect persons, whose ordinary business
led them to each other in the course of their own particular callings.
A person, who was not a trader, although he wrote a letter concern-
ing some trading contract, would not be within the words or meaning
ef the exemption.
Per Curiam. “It appears in evidence that the defendant did carry
“on the business for his mother, and that this debt arose in the regu-
“lar course of the trade. And therefore any letter written by him
“ on account of that very trade, whereby he bound himself to another
“tradesman, may fairly be construed to fall within the letter and
“spirit of the act; which meant that the correspondence of merchants
“ and tradesmen at a distance from each other, on the faith of which
“they had considerable dealings, should not be fettered with
“stamps.” -
* 146
IPART THE SECONI).
*.
OF THE PARTIES TO A CONTRACT AND THEIR RE-
PRESENTATIVES, &c.
IN this part of the work it is intended to show what persons may
or may not contract and bind themselves, or others for whom they
contract; and also how far the representatives of the contracting
parties are bound by the contract of the persons whom they repre-
sent. The subject, therefore, will be treated in the following or-
der:
1. of INFANTs.
2. OF MARRIED womEN ; AND OF THEIR HUSBAND’s LIABILITY
"TO CONTRACTS MADE BY THE WIFE BEFORE AND AFTER MAR-
RIAGE.
3." OF MASTER AND SERVANT.
4. OF PRINCIPAL, FACTOR, AND AGENT.
5. OF AGENTs of GovERNMENT, &c.
6. OF PARTNERs.
7, of own ERS AND MASTERs of SHIPS, AND of SEAMEN.
8. of PARISH of FICERs.
9. OF TRUSTEEs.
10. OF AssIGNEEs of A BANKRUPT.
11. OF EXECUTøRS AND ADMINISTRATORs.
CHAPTER I,
OF ContRAGT's witH INFANTs.
BY the common law a person is called an infant till the age of
21 years.(a) And all contracts with infants, except for necessaries, (2) Co. tit,
are either void or voidable:(b) the reason of which is, the indulgence § dº. Dig,
the law has thought fit to give infants, who are supposed to want judg- tit. Enfant, à,
ment and discretion in their contracts and transactions with others, * C. 2,
and the care it takes of them in preventing them from being imposed
upon or overreached by persons of more years and experience.(c) (c) Bac. Abrº
tit. Infancy
º º g se - and Age, I. 3
Therefore, if an infant be in trade, and contract a debt in buying nd Age, l. 3,
goods, &c. for his trade, it is not recoverable against him, though he
thereby gains his living.
Thus, in the case of Whittingham V. Hill,(d) which was an action (d) Cro. Jac,
of assumpsit for goods sold ; the defendant pleaded that he was an †. i *g.
infant: the plaintiff replied that the goods were for the necessary di- i. jº
et and apparel of the defendant and his family; the defendant rejoin- Abr. 729. 1,
ed that he kept a mercer’s shop at Shrewsbury, and bought the goods #. º gº
to sell again, and traversed that he bought them pro necessario, &c.;
the plaintiff thereupon demurred. And, after argument, it was ad-
judged for the plaintiff. But afterwards, upon a writ of error, the
judgment was reversed. Et per Curiam : “This buying for the
“ maintenance of the defendant’s trade, though he gain thereby his
“ living, shall not bind him, for an infant shall not be bound by his bar"
“gain for any thing but for his necessity, viz. diet and apparel, or nec-
“essary learning.”
But it is said,(e) Mr. Baron Clarke in such an action before him, (e) Bul, N, F,
where the defendant gave his non-age in evidence, it appearing he 494.
*had been set up in a farm, and bought sheep of the plaintiff in the
way of farming, directed the jury to give a verdict for the plaintiff,
and said he thought the law ought not to put it in the power of infants
to impose upon thei)est of the world. And the Scotch law is agreea-
ble to this determination.(f) (f) Wide
Erskine's
However, in the case of Whywall v. Champion,(g) Lee, Ch.J. tul- º,
ed, “That goods sent to the defendant, who had set up a shop in the (g) Str. 1098,
“country could not be recovered for as necessaries, he appearing to
We L. I. [18]
# 143
186 Of Contracts with Infants. [PART II,
“be an infant; for the law will not suffer him to trade, which may be
“his undoing.”
, (h)2.Ésp. So, in the case of Dilk v. Keighley,(h) which was an action of as-
§§ º, sumpsit to recover a sum of money due for work and labour. On the
Ş...; trial, it appeared, that the plaintiff was a writing painter, and the de-
fendant a glazier and painter, and the work was done by the plaintiff
in the way of his trade, in painting and guilding letters for the defend-
ant’s customers. It also appeared that the defendant was an in-
fant.
On the case being opened, Lord Kenyon, Ch. J. expressed an opin-
ion that the action was not maintainable, the plaintiff’s counsel having
admitted the infancy.
It was contended by the plaintiff's counsel, that those things were to
be deemed necessaries by which an infant gained his living: that in
the present case the defendant carried on trade on his own account,
and the work having been done for his customers, for which he himself
had been paid, and whereby he lived, was to be deemed necessaries for
which he should be liable.
Per Lord Kenyon, Ch. J. “The law will not allow an infant to
“trade. The substratum of the present action is, therefore, that
“ which by law cannot be done. No action can, therefore, be main:
“tained for work done in the course of it.”
(i) 3 Salk. And the rule of law is said(i) to be the same in regard to a debt in-
196. Sed que- tº tº ºn tº º
*e, º: * curred in repairing houses belonging to an infant. *
Burr. 1717. §
Bulst. 69. So, a bill of exchange or other written contract made by an infant,
except for necessaries, is voidable by the infant.
(k)'Carth. Thus in the case of Williams v. W. Harrison and R. Harrison,(k)
; sº which was an action brought upon a bill of exchange drawn by the
defendants, and protested for non-payment. R. Harrison, one of
the defendants pleaded infancy in bar ; to which the plaintiff de-
murred, upon the ground that infancy was no bar to this action, it
being founded on the custom of merchants.
* 150
But the court, without argument, overruled the demurrer, for they
clearly held, “that infancy was a good bar notwithstanding the cus-
“tom ; for here the infant is a trader, and the bill of exchange was
“drawn in the course of trade, and not for any necessaries.” So judg-
ment was entered; that the plaintiff nil capiat per Billam versus R.
Płarrison.
ČHAP. I.] of Contracts with Infants.
189
And Holt, Ch. J. cited a case, “That where an infant keeps a
“common inn, yet an action on the case upon the custom of inns,
is will not lie against him, which is stronger than the principal case.”
[But a negotiable note given by an infant, even for necessaries,
is void. This is the opinion of respectable writers, and is consider-
ed to be the law. The reason given is, that if the note be valid, in
the first instance, as a negotiable note, the consideration cannot be in-
quired into when it is in the hands of a bona fide holder. For the
same reasons an infant cannot state an account, as that would pre-
clude him from investigating the items. 10 Johns. Rep. 33. Chit, on
bills, 29. 15 Mass. Rep. 272, 2 Starkie, 36.] -
But, although a bill be drawn, indorsed, or accepted, by a person
under age, it will nevertheless be valid against all other persons who
are competent parties to the instrument.(1)
(l) Taylor v,
Crocker, 4.
If an infant submit a matter to arbitration, and an award is made 187. See also
against him, he may perform the award, or avoid it at his elec-
tion, as he may all other his contracts.(m)
A contract made with an infant cannot be converted into a tort so
as to make him liable in that form of action.
Thus, if one deliver goods to an infant upon a contract, &c. know-
ing him to be an infant, he shall not be chargeable in trover and con-
version, or any other action for them ; for the infant is not capable of
any contract, but for necessaries ; therefore, such delivery is a gift
to the infant : but if an infant without any contract wilfully takes
away the goods of another, trover lies against him : it is also said
that if he take the goods under pretence that he is of full age, trover
lies, because it is a wilful and fraudulent trespass.(n)
2 Atk. 181. 2. '
(m) Bac.
Abr. tit. Iris
fancy and
Age, I. 3.
(n) See R.
Sid. 129.
1. Lev. 169.
So, in the case of Jennings v. Rundall,(0) which was a special action Keb. 905.
on the case in tort ; and the plaintiff declared that at the defendant’s
(0) 8 Term
request he had delivered a mare to the defendant to be moderately Rép. 335.
ridden, but that the defendant maliciously intending, &c. wrongfully
and injuriously rode the mare so that she was “damaged, &c. It
was holden, that the defendant might plead his infancy in bar, the ac-
tion being founded on a contract.
And Lord Kenyon, Ch. J. said, “The law of England has very
“wisely protected infants against their liability in cases of contract;
“and the present case is a strong instance to show the wisdom of
“that law. The defendant, a lad, wished to ride the plaintiff’s mare
“a short journey; the plaintiff let him the mare to hire; and in the
“course of the journey an accident happened, the mare being strain-,
$ 154
140
Of Contracts with Infants. [PART II.
(p) I Sid, 129.
et ante, 150,
(g) Keb.
905.
(r) Ibid.
, ed; and the question is, whether this action can be maintained P
“I am clearly of opinion that it cannot ; it is founded on a contract,
“If it were in the power of a plaintiff to convert that, which arises
“out of a contract, into a tort, there would be an end of that protec-
“tion which the law affords to infants. Lord Mansfield, indeed, fre-
“quently said that this protection was to be used as a shield, and
“not as a sword; therefore if an infant commit an assault, or utter
“slander, God forbid that he should not be answerable for it in a
“court of justice. But where an infant has made an improvident
“contract with a person who has been wicked enough to contract
“with him, such person cannot resort to a court of law to enforce
“such contract. And the words ‘wrongfully, injuriously, and ma-
“‘liciously,’ introduced into this declaration, cannot vary this case.”
Grose, J. “I am of the same opinion. In the case of Manby v.
“Scott,(p) this distinction was taken, that if the action againstan
“infant be grounded on a contract, the plaintiff shall not convert it
“into a tort ; if one deliver goods to an infant on a contract, knowing
“ him to be an infant, the infant shall not be charged for them in tro-
“ver and conversion ; for by that means, all infants in England
“would be ruined.” A very few years after the decision of that
case, the case of Johnson v. Pye,(q) arose, according to one report
of which(r) Lord Ch. J. Keeling, expressed great indignation at the
attempt to charge an infant in tort, for that which was the foundation
of an action of assumpsit ; he said, “The judgment will stay for
“ever, else the whole foundation of the common law will be shak-
“en ; for this was but a slip, and he might have pleaded his minority
* here.” sº
But an action of assumpsit will lie against an infant to recover
money embezzled by him,
* 152
(s) Peake's
Ças, N, P.
223. 1 Esp.
Rep. 172. S.
f
*Thus, in the case of Bristow and others, assignees, &c. v. East-
man,(s) which was an action of assumpsit for money had and received
to the use of the bankrupts before they became bankrupts.
The defendant had been an apprentice to the bankrupts, who were
merchants, and, during his apprenticeship, had been entrusted by
them to make entries at the custom-house, and pay other sums of mon-
ey on their account. He had frequently charged larger sums of mon-
ey than those he actually paid, and the present action was brought to
recover back the over-charges.
The defendant attempted to defend himself, on account of his being
an infant at the time.
Lord Kenyon, Ch. J. said, “The question was new, and had not
“ been decided; but he was of opinion that this action, though in
“form arising ea contractu, in fact arose ea delicto, and as he could
# not have defended himself by reason of his infancy if an action of
CHAP. I.] Of Contracts with Infants. 141,
“trover had been brought for the money, so he ought not to be permit-
“ted to defend himself on that ground, in this action.”
The plaintiffs, however, proved that the defendant acknowledged
the fraud, and promised payment after he came of age, so that the point
was not determined ; the plaintiffs obtaining a verdict on this evi-
dence.
As to the acts of infants being void or voidable, it is said,(t) there () Bac. Abr.
is a diversity between an actual delivery of the thing contracted for, tºº%.
and a bare agreement to deliver it only ; that the first is voidable, but see Perk. s.
the last absolutely void; as if an infant deliver a horse or a sum of º:
money with his own hands, this is only voidable, and to be recovered 5.2Roll. Rep.
back in an action of account. But if an infant agrees to give a horse, !. Latch.
and does not deliver the horse with his hand, and the donee takes the
horse by force of the gift, the infant shall have an action of trespass,
for the grant was merely void.
It is also laid down as a general rule,(u) that infancy is a personal (,) 1. Show. .
privilege, of which no one can take advantage but the infant himself; *. ºil,
and therefore, though the contract of the infant be voidable, *yet it Bac. Abr. tit.
shall bind the person of full age; for being an indulgence which the law; 153
law allows infants, to protect and secure them from the fraud and im- wº
position of others, it can only be intended for their benefit, and is not
to be extended to persons of full age who are presumed to act with
sufficient caution and security ; and were it otherwise, this privilege,
instead of being an advantage to the infant, might in many cases turn
greatly to his detriment.
Therefore it hath been adjudged,(v) that if an infant let a house to (v) 1 Sid, "
J. S., an adult, reserving rent; and the rent be in arrear, the infant :"' Mod,
may distrain for the rent, or bring an action of debt; though it should
be objected that such a contract, is not reciprocal.
*
So, where an infant brought an action on the case by her guardian,
and set forth,(w) that she gave the defendant 10l. and put herself to (w) 1 Sid.
be her servant for seven years, and that, in consideration thereof, ****
the defendant promised to find her all necessaries, save only apparel,
and likewise promised to teach her to sing and to dance; and that the
defendant, within the time turned her out of the house, and did not
teach her to sing and dance ; whereupon there was judgment by de-
fault, and a writ of inquiry of damages: it was moved to stay the fil-
ing of the writ of inquiry because here was no consideration, the agree-
ment net being reciprocal ; but the court held, that, though the con-
tract might be void as to the infant, yet it bound her mistress, who
was of full age ; and therefore ordered the writ of inquiry to be filed.
So where an infant brought an action of assumpsit, by his guardian, (c) 1 vent.
and declared,(a) that whereas the defendant entered into his close, i. 1 Mod.
: Jºe
142
Of Contracts with Infants. [PART. II.
§ 154
(y) 2 Sid.
$09.
and cut his grass; that in consideration the plaintiff would permit
him to make it into hay, and carry it away the defendant promised to
give him six pounds for it. To this declaration the defendant demurred
upon the ground that there was no legal consideration to support the
promise ; for the infant was not bound by his permission, but might
sue the defendant for the trespass notwithstanding. The court, how-
ever, gave judgment for the plaintiff.
So, in a similar action upon a promise to pay the plaintiff, an infant,
the value of certain land, in consideration that he would suffer the
defendant to hold and enjoy it, after the death of fl. to “the time of his
full age; the plaintiff had judgment, although it was agreed that he
was not bound by the contract.(y) º sº w
So, on a promise to an infant to do such an act, in consideration
that the infant promised to pay such a sum ; in an action of assump-
s&by the infant, he had judgment, though the money was not paid;
for the cuuru lieu, uiat tire ...ºnt’s promise was only voidable at his
(a) 1 sid. 41, own election, and not at the election of him to whom it was made.(z)
1 Keb. 1.
(a) 2 Stra.
937. Fitzg.
175. 2.79.
(b) Cited in
2 Stra. 937.
Fitzg. 279.
(c) Co. Lit.
172. a.
(d) Per Ld.
So, if a man of full age and a female of fifteen promise to intermar-
ry, and after request by her, he marries another woman, an action on
the case lies against him for the violation of the contract; for though
it was objected that this was nudum pactum and not reciprocal, as the
man could not compel her, being an infant, to perform her promise,
yet being voidable as to herself only, as she finds it for her benefit,
it shall bind him, being of full age.(a)
If an infant lose money at play, which the winner takes, such tak-
ing is a conversion, and trover and conversion lies for the infant for
the sum so received; but if the infant had won, he might have re-
tained the money, and no action would have laid against him for it.(b)
Of Contracts for Necessaries.
It is clearly agreedin all the books, that if an infant makes a contract
for necessaries it is neither void nor voidable.(c) Indeed if this could
be done, it is truly observed(d) “ that miserable must the condition of
*ſºlº 3 “ minors be; excluded from the society and commerce of the world;
Burr. 1801.
“ deprived of necessaries, education, employment, and many advan-
“tages, if they could do no binding acts. Great inconvenience must
“ arise to others, if they were bound by no act. The law therefore,
GHAP. I.] Qf Contracts with Infants. 143
“ at the same time that it protects their imbecility and indiscretion
“ from injury through their own imprudence, enables them to dobind-
“ing acts for their own benefit, and without prejudice to themselves,
“ for the benefit of others.” - -
*Therefore if an infant contracts for his necessary diet, apparel, * 155
washing, lodging or education, it shall bind him.(e) -
So, if he contracts for physic, or for his cure with a surgeon, when
he is wounded.(f) (f) Co. Lit;
- 172 a. Pal.
- - - 528.
So, if he be a housekeeper and contracts for necessaries for himself,
his wife, and family.(g) But an infant is not liable for necessaries (g) 1 Sid.
tº º • 1, . wº 112. Cart.
provided in order for his marriage.(I) 215. 1 Str.
168.
So, a contract to pay so much per annum for his diet and school- (*) Ibid.
ing.(?) (?) 1 Rob.
Abr. 729. I.
So, a promise by an infant, in consideration that 4, had expended 35. Pal. 528.
71, for his diet and teaching, to pay him that sum.(k) -
(k) Sir W.
. . . . . - is a º Jones, 182.
Instructing an infant in a useful trade, seems to fall within the des-
cription of necessaries.(l) § : !.
OOCIESOrl’s
tº º * - * * * w Lec. 402. n.f.
A captain in the army, being under age, is liable to pay for a livery
ordered for his servant, as necessaries, but not for cockades ordered
for the soldiers of his company.
Thus, in the case of Hands v. Slaney,(m) which was an action for (n) stem
goods sold and delivered, it appeared that the goods in question were Rep. 578.
a livery for the defendant’s servant, who was a captain in the army, êºis.
and cockades for some of the soldiers belonging to his company, which
were furnished by the plaintiff at the defendant’s request. The de-
fendant, who was a minor, relied upon his infancy, insisting that the
goods in question were not within the description of necessaries; for
which only he was liable. But Lord Kenyon, before whom the cause
was tried, left it to the jury to consider whether the livery for a ser-
vant were not necessary and suitable to the plaintiff’s degree, and the
cockades a necessary expense incidental to his situation ; and the ju-
ry being of opinion that they were, found a verdict for the plaintiff.
But a motion for a new trial was afterwards made. The court how-
ever, were of opinion, that the livery for the defendant's servant was
necessary to the defendant’s station in life: but that the cockades
could not come within that description.
(e) Co. Lit. 172. a. Sir W. Jones, 146. 182. 1 Roll. Abr. 729. l. 5, 6. 30.
35. Latch. 157. Dyer, 104 b, in marg, 1 Sid. 112. Mar. 40.
Of Contracts with Infants. [PART. II.
(n) Bac. Abr.
tit. Infancy &
Age, I. 1.
Com. Dig. tit.
Enfant, B. 5.
Cro. Eliz.
583.
(o) Wide Cart.
215.
(p) 2B1. Rep.
1325, 9 Johns,
141.
Lord Kenyon, Ch. J. said, “The cockades cannot be considered as
* necessaries for the defendant, and ought not to have.*been included
“ in the damages; though it cannot be worth the defendant’s while
“ to be at the expense of another trial to apportion the damages,
“But as to the other article furnished, namely, the livery, I cannot say
“ that it was not necessary for a gentleman in the defendant’s situa-
“tion to have a servant; and if it were proper for him to have one,
“it was equally necessary that the servant should have a livery. The
“general rule is clear, that infants are liable for necessaries accord-
“ing to their degree and station in life. This defendant was plac-
“ed in a situation which required such an attendant. Therefore, how-
“ever inclined I am in general to protect infants againstimprovident
“contracts, I think that this case falls within the fair liability which
“ the law imposes on infants of being bound for necessaries, which is
“a relative term, according to their station in life.”
In all cases it must appear that the articles furnished were actu-
ally necessary, and suitable to the infant’s estate and condition, of
which the court and jury will determine;(n) and the law distinguish-
es between persons as to the fitness of necessaries ; as, for instance,
between a nobleman and a gentleman's son : so also, as to the time
and place of education; as at school, Oaford, and the inns of court.(6)
An infant who lives with, and is properly maintained by her par-
ent, cannot bind herself to a stranger for necessaries,
Thus in the case of Bainbridge v. Piekering,(p) which was an ac-
tion for feathered caps, and other ornamental apparel sold to the de-
fendant, who at the time of sale was an infant, and lived with her
mother.
Gould Just, said, “If an infant lives with her parent, who provides
“ such apparel as appears to the parent to be proper, so that the child
“is not left destitute ofclothes, or other real necessaries of life, I appre-
“hend that the child cannot bind herself to a stranger even for what
“might otherwise be allowed as necessaries: for no man shall take
: “upon him to dictate to a parent what clothing the child shall wear,
# 157
“at what time they shall be purchased, or of whom. All that must be
“left to the discretion of the father or mother. And as there is not
“here any pretence but that the child was decently provided for by
“the mother, I think we should give no countenance to such persons
“ as inveigle young women into extravagance under the pretext of fur-
“nishing them with necessaries, without the previous consent of the
“ parent.”
CHAP. I. Of Contracts with Infants. 145
So, it is incumbent on a tradesman before he trusts an infant with
what may appear to be necessaries, to inquire whether he is provided
by his parents or friends.
Thus, in the case of Ford v. Fothergill,(q) which was an action of (q) Peake's
assumpsit for work and labour as a taylor. The facts were these ; the §. N º
defendant, being under age, came to the house of the plaintiff, in com- Rep. 311. $.
pany with a gentleman who was previously a customer of his, and or- 9.
dered a coat, waistcoat, and two pair of breeches, which were to be
sent to the Grecian Coffee-house, and were accordingly sent there.
The defendant proved, that at this time he was provided by his fath-
er with all things necessary for his support. He had been very ex-
travagant, and his father had, in the course of the year 1793, when
this debt was contracted, paid many other debts contracted with oth-
er taylors to a large amount.
Lord Kenyon, Ch. J. said, “ Nothing is clearer in the law than that
“an infant cannot contract a debt except for necessaries. It is abso-
“ lutely necessary that he should have the power of making that con-
“tract otherwise he would starve. As to the plaintiff not knowing
“his fortune it is no excuse: it was incumbent on him to inquire in.
“ to that, and to prove it to the jury. Whether he was living with
“ his father or not, the person who dealt with him was bound to in-
“quire and know who he was. He was living at a coffee-house, itself
“ no mark of a wary disposition; the plaintiff should have inquired
“ there, and gone to his father and inquired of him whether he was in
“ want of these clothes. Circumstanced as this case is, such an in.
“quiry ought to have been made.”
If an infant comes to a stranger, who instructs him in learning, and
boards him, there is an implied contract in law, that the party shall
be paid as much as his board and schooling are worth; but if the in-
fant, at the time of his going there, was under the age of discretion, or
if he were placed there by a guardian, or friend, who agreed to pay for
his board and education, the party that “boarded him has no remedy # 158
against the infant, but must resort to the person with whom he agreed.(r) () Duncome
It is also said,(3) “that it hath, of late years, been several times X. Tºsº,
“ determined, that where a parent or relation, &c. places an infant tº.
“at a boarding-school, the credit being given to such parent, relation, Abr. 595, in
“ &c. the master cannot have any remedy against the infant.” jā;"
A fine due by an infant on an admittance to a copyhold estate, is
recoverable against him during his minority.
Thus, in the case of Evelyn, bart. v. Chichester,(t) where it appear- (f) 3 Burr.
ed that a copyhold estate devolved on the defendant when he was an iſ 17. Bui,
infant of six years of age : a fine was assessed, and he was admitted N. P., 154,
WeL, I, [19]
M46
Of Contracts with Infants. [PART II.
§ 5 Mod.
68. 10 Mod.
67. 12 Mod.
197.
* 159
(w) 5 Esp.
Rep. 28.
to the estate on his coming of age. Assumpsit was brought for this
fine; and, upon a case reserved for the opinion of the Court of King’s
Bench, the question was, whether assumpsit would lie for the fine,
xhich the jury found to be a reasonable one. The court held clear-
ły, that the action lay; and per Yates, Just. “If the defendant
“ was still an infant, I should think this action maintainable. Debt,
“perhaps, would not lie, because an infant cannot wage his law
“but assumpsit, I think, would lie, as the infant continued to oc-"
“cupy and enjoy the estate. In 2 Bulst. 69. Kirton v. Elliott, the
“plaintiff recovered against an infant the rent upon a lease made to
“him : and it is there said, “if a lease be made to an infant, and he
“‘ occupies and enjoys, he shall be charged with the rent.”
“An infant may contract for necessaries. He could not have re-
“ ceived the rents and profits of this copyhold without admittance ;
“ and he must previously pay the fine for such admittance. But
“here, he has affirmed the whole transaction : he has enjoyed twe
“years since he came of age.”
If an inſant contracts for necessaries, and enters into a single bill,
bill of exchange or promissory note, he shall be bound by such obli-
gation.(w)
So, if money be actually laid out and expended in the purchase of
necessarises for an infant, he shall be liable for the amount so laid.
out.(v)
*So, money paid for an infant to procure his liberation from an ar-
rest for a debt contracted for necessaries, may be recovered against
him by action at law.
Thus, in the case of Clarke v. Leslie,(w) which was an action of
assumpsit, and the several counts in the declaration were for meat,
drink, and other necessaries, found and provided for the defendant;
money lent and paid to the defendant’s use with the other common
money counts.
Part of the demand claimed arose in this way; the defendant had
been arrested by a writ out of the Marshalsea Court, for 7l. 2s. 6d,
and was in custody of the officer. The plaintiff was sent for, and
paid that debt to the officer; in consequence of which the defendant
was discharged out of custody.
The defence to the action was infancy; and it was objected by the
defendant’s counsel, that this sum so stated to be paid by the plain-
tiff to the officer, could not be recovered against an infant : that it
could be recoverable only as money lent and advanced by the plain-
-wmºs
(w) 1 Roll. Abr. 729. I. 20. Gro. Eliz. 920. 1 Lev. 86. Co. Lit. 172, a.
Carth. 160. 2 H. Bl. 514.
GHAP. I.] of Contracts with Infants.
tiff to the defendant, or as paid to her use ; and in either of which
cases an infant was not liable; for to entitle the party to recover the
demand, it must be for necessaries, or money advanced and directly
applied in the payment for necessaries.
It was answered, that the money paid by the plaintiff to procure
the defendant’s discharge, was to be deemed necessaries ; that the
legal meaning of necessaries was not confined to mere meat, drink,
education, or articles of that description : that that which procured
the defendant her liberty, which enabled the defendant to earn her
bread, came equally under the description of necessaries; and as such
was recoverable.
Lord ſilvanley, Ch, J. said, “I agree that the demand in question
“may come under the description of necessaries. If the defendant
“had been taken into custody for a debt contracted for necessaries,
“discharging that demand would be to pay for necessaries ; so if the
“defendant had been in execution; that is, if at all events the de-
“fendant had made herself liable to the debt, and could not contro-
“vert it, paying that debt, I think, would be necessaries. This is
“my opinion ; and it was the opinion of other judges of great learn-
“ing : but, I think, that the plaintiff must show that the debt, which
“was so paid here, was either for necessaries, *or that the party was
“in execution. If this was not to be required, an arrest for a sup-
“posed or fraudulent debt might be made, and the infant might be
“subjected to the payment of the money advanced to liberate her
“from an arrest, for a demand for which an infant could not legally
“be made liable. If therefore the plaintiff can prove, that the money
“paid at the spunging-house, was paid to extricate her from impris-
“onment for a lawful debt, for which she was liable, and might
“have gone to jail, or if she was then in execution, I think the
“money paid may be recovered, as being expended for the ben-
“efit of the infant; but if no evidence of that kind is given, as
“she may have been in custody on mesne process for a debt to
“which she, as an infant, was aot liable: as she may have been
“arrested fraudulently by the very plaintiff, to cover the ad-
“vance of money, I think the plaintiff cannot recover. I go farther;
“for even if this debt in the spunging-house were to be considered
“as for necessaries, I am not prepared to say, that if the plaintiff
“had paid the debt for the infant, in order to enable her to return
“to a state of prostitution, as has been suggested, so that the debt
“thereby created must be discharged by the wages of prostitution,
“the plaintiff would, in that case, be entitled to recover ; for the
“transactions would be tainted by the same immoral considera-
{{ tion,”
# 166)
14s Of Contracts with Infants. [PART II.
But though an infant may bind himself in a single bill for necessa-
ries, yet if he enter into an obligation, and a penalty be annexed to it,
such obligation is void.
% ‘. º Thus in the case of Aluff v. Archdale.(2) The case upon demurrer
3. i. 1;" was, the plaintiffhad paid certain money for the necessary meat and
t; . * drink of the defendant, being an infant, and took an obligation in the
2 #. £1.14 double sum for the payment thereof; and whether this were good or
voidable, was the question.—The whole court held it to be void.; but
if the plaintiff had taken an obligation of the very sum which he had
laid out for his necessary maintenance, it had been otherwise.
If, however an infant and a surety enter into an obligation with a
penalty for necessaries found for the former, the bond will bind the
surety, although it will not bind the infant.
(3) Bac. Abr. It is also said, (y) that if an infant becomes indebted for necessaries
... 1 and enters into a bond with a penalty for the amount, this “shall
§ #" not drown the simple contract, because the bond has no force.
If one lends money to an infant, who actually lays it out for neces-
saries, yet this shall not bind the infant, nor subject him to an action ;
for it is upon the lending that the contract must arise ; and the law
will not intrust an infant with the application and laying out of money :
and the infant’s applying it afterwards for necessaries will not, by
(e) Wide 1 matter ea post facto, entitle the plaintiff to an action.(2)
§alk. 279.
387. 5 Mod. e G e - *
368, 10 Mod So, an insimul computasset, or account stated, lies not against an
$7, Pºll. W. infant, though the particulars of the account be for necesseries ; for
P. 154. * e tº º º &
the law considers an infant as not having sufficient discretion to
(a) Trueman agree, to an account, and the assumpsit is upon the account.(a)
v. Hurst, 1
N.
Term Rep.
40. amºusºsºme
(2 Starkie,
36) Of Contracts made with infants out of Englund.
If an action be brought against an infant upon a contract made with
him in . to which infancy is pleaded, or given in evidence, un-
der the general issue, the defendant, at the trial, must be prepared to
prove, what the law of that country is in regard to infants; otherwise
he will be liable.
(b) 3 Esp, Thus, in the case of Male v. Roberts,(b) which was an action of as-
}ep 163, sumpsit for money paid, laid out, and expended to the use of the de-
§º fendant, money lent and advanced, to which the defendant pleaded
the general issue of non assumpsit.
CHAP. I.] Of Contracts with Infants.
149
The case, as opened by the plaintiff’s counsel;was that the plaintiff
and the defendant were performers at the Royal Circus : while the
company were performing at Edinburgh, in Scotland, the defandant
had become indebted to one Cockburn for liquors : of different sorts,
with which Cockburn had furnished him; not having discharged the
debt, and it being suspected that the defendant was about to leave
Scotland, Cockburn arrested him, by what is there termed a writ of
Fuge: the object of which is to prevent the debtor from absconding,
*The defendant being then unable to pay the money, the plaintiff
paid it for him ; and he was liberated. The present action was brought
to recover the money so paid, as money paid to his use.
The defence relied upon was, that the defendant was an infant
when the money was so advanced.
Lord Eldon, Ch. J. said, “It appears from the evidence in this
“cause, that the cause of action arose in Scotland ; the contract must
“be therefore governed by the laws of that country where the con-
“tract arises. Would infancy be a good defence, by the law of Scot-
“ land, had the action been commenced there * g
For the defendant it was contended, that the contract was to be
governed by the laws of England ; in which case the plaintiff could
recover for necessaries only. That at all events it should not be pre-
sumed that the laws were different; and as it appeared that the debt
did not accrue for necessaries, the plaintiff could neither recover on
the counts for money paid, or for money lent to an infant.
Lord Eldon, said, “What the law of Scotland is with respect te
“the right of recovering against an infant for necessaries, I cannot
“say ; but if the law of Scotland is, that such a contract as the pre-
“sent could not be enforced against an infant, that should have been
“given in evidence; and I hold myself, not warranted in saying that
“ such a contract is void by the law of Scotland, because, it is void by ex
“ the law of England. The law of the country where the contract
“ arose must govern the contract; and what that law is, should be
“given in evidence to me as a fact. No such evidence has been
“given; and I cannot take the fact of what that law is, without evi-
“dence.” ****
º
*º $º-
Of Contracts with Infants, ratified and confirmed by them when at
- full age.
The privilege the law allows to infants being entirely calculated
for their benefit, and to prevent frauds being practised upon them
during their minority; hence at their full age, they are at liberty ei-
* 162
156) of Contracts with Infants. [PART. II.
ther to ratify and confirm their contracts, or to avoid them. Therefore,
if an infant be furnished with goods, which do not come within the
# 163 description of neeessaries, and after he comes of age, he *ratifies the
contract by promise to pay, he is bound by such promise, and lia-
(c) Souther-ble to be sued thereon for the debt.(e)
tonv. Witlock, -
2 Stra. 690. ... . & º g
Bothwich v. So, if an infant give a bond, and at full age promise payment, it shall
Qarruthers, 1 bind him ( d)
Term Rep. º: ' s tº a tº
648. So, if a man enters into an obligation for payment of money for an
# % º: infant, and the infant, after he comes of age, promises, in consideration
er, ºa. i. that the obligee had entered into the bond and paid the money, he
*. *. would pay him the debt ; this promise is valid and sufficient to sup-
(e) Einoni, port an action.(6)
case, 3 Leon.
164. 4Leon.5. So, where an infant borrowed money, and afterwards at full age
promised payment; this is a good consideration for the promise, and
(f) Comb, he shall be charged.(f)
381.
But to bind a person to the payment of a debt contracted during
his infancy by a new promise, made by him at full age, it must be an
absolute unequivocal promise to pay.
(g) 2 Esp. Thus, in the case of Thrupp v. Fielder,(g) which was an action of as-
Rep. 628. sumpsit for goods sold and delivered, to which the defendant pleaded
that he was an infant at the time of the sale ; The plaintiff replied a
new promise made by the defendant after he came of age.
In support of this replication, upon which issue was joined, the
plaintiff could prove no express promise whatever to pay, but gave in
evidence a payment of 40l. made by the defendant on account of the
debt, since his coming of age.
For the plaintiff, it was contended, that this payment being made
generally on account of the debt, was an admission by the defendant
of his liability to pay, and tantamount to a new promise.
yº
Lord Kenyon, Ch. J. said, “I am of opinion this is not such a prom-
“ise as satisfies the issue. The case of infancy differs from the sta-
“tute of limitatºps : in the latter case a bare acknowledgment has
“ been held to flºufficient. In the case of an infant I shall hold an
“ acknowledgment not to be sufficient, and require proof of an ex-
“ press promise to pay, made by the infant after he has attained that
“ age when the law presumes that he has discretion. Payment of
“money made, as in the present case, is no such promise.”
* 164 *Such a promise must also be made voluntarily, and given with
knowledge that the party was discharged by his non-age.

GHAP. I.] Of Contracts with Infants.
151
Thus, in the case of Harmer v. Killing,(h) the facts were these : (h) 5 Esp.
the defendant had been furnished with goods during his infancy; an
Pºde Cro
d Rep. 102.
e
after he came of age, the plaintiff came to him to demand the money. Eliz. 700. S.
The person sent saw the defendant, and threatened to arrest him :
upon which the defendant agreed to give his note for it. But hap-
pening to mention to a friend of his what he was about to do, his
friend said, don’t do it : draw upon your father’s executors. He then
refused to do anything.
It was contended, that this was not such a promise as was sufficient
in law to bind the defendant.
Lord Alvanley, Ch. J. said, “that the infant was discharged by
“his non-age for goods, not necessaries, if furnished to him before his
“full age; but that he might bind himself by a new promise, after he
“ obtained his full age : but that he held that such promise must be
“voluntary, and given with knowledge that he then stood discharged
“by law : that where an infant under the terror of an arrest, had a
“ promise extorted from him, or where it was given ignorant of the
“protection which the law afforded him, he should hold that he was
“ not bound to it. If therefore the jury should be of opinion that the
“ facts were, that this promise was so obtained, he should direct them
“ to find for the defendant.” A verdict was found for the defend-
ant.
So, if a promise be made by an infant after he comes of age, to pay a
debt contracted during his minority, when he is able, the ability of
the party to pay must be proved : but it is sufficient to show his os-
tensible appearance, and his circumstances as they are open to the ob-
servation of the world.
Thus, in the case of Cole, executor of Cole, v. Sawby,(i) which was
also an action of assumpsit for money paid, &c. And it was proved,
that in a conversation with the defendant respecting the debt, which
was contracted during his infancy, the defendant said, “he had had
“very heavy losses in trade; but that he would pay his part when he
“ was able.”
*Lord Kenyon, Ch. J. said, “This is not an absolute promise to pay;
“it is, “when he is able.” I remember a case before Lord Mansfield,
“in Staffordshire, in which he was of opinion, that it was incumbent
“on the plaintiff to show that the defendant was of ability to pay at
“the time of the action brought.”
The plaintiff’s counsel then called a witness to prove to that effect.
The defendant’s counsel cross-examined him as to his particular
knowledge of the defendant’s circumstances; whether he knew the
State of his debts, or how he was circumstanced.
Lord Kenyon, Ch. J. said, “It was not necessary to inquire furth-
“er than his estensible appearance, and his circumstances, as they
(i) 3 Esp.
Rep. 159.
:};
1.65
152
Qf Contracts with Infants. [PART II.
(k) 3 Esp.
Rep. 76.
And see Jaf-
fray v. Free-
bain and
others, 5 Esp.
Rep. 47. S.
# 166
“were open to the observation of the world ; that if appearances
“were that he was of sufficient substance and ability, he should hold
“it sufficient to satisfy the promise.” - -
The plaintiff did accordingly produce such evidence, which satisfi-.
ed his Lordship, who held it to be sufficient.
amº ºne
Of a Joint Contract made with an Infant and an Adult.
If a contract is made by an infant and an adult, they cannot both be
sued thereon, but the action should be brought against the adult only,
as being the sole contracting party in point of law.
Thus, in the case of Chandler v. Parkes and Danks,(k) which was
an action of assumpsit, for work and labour, and materials found for
both defendants. Parkes, one of the defendants, pleaded the general
issue of non assumpsit : the other defendant pleaded infancy. The
plaintiffentered a nolle prosequi as to the defendant Danks, and pro-
ceeded to issue with the other defendant Parkes.
Lord Kenyon, Ch. J. on the case being opened, and looking into
the record, said, “he doubted how the plaintiff could recover against
“one defendant only, in an action on a contract which he by his dec-
“laration, had stated to be a joint one against two: that the infancy
“being admitted, the plaintiff ought to have discontinued, and com-
“menced a new action against the adult defendant, as being the sole
“contracting party according to the legal effect of such a contract,
“which was void against the infant.”
*The plaintiff’s counsel contended, that the promise of an infant
was not void, but voidable only ; and if the plaintiff had declared
against the adult defendant only, he could have pleaded in abatement,
that the contract was a joint one ; and quashed the plaintiff’s writ.
Lord Kenyon, said, “he continued of the same opinion ; for the
“plea in abatement could not prevail, when it was disclosed that the
“other defendant was an infant.”
[But, in Hactress et al. v. Thompson, et, ux. et al. 5 Johns. Rep.
160. these decisions are denied to be law. The action was on a joint
and several note and the makers all sued, one of whom was an infant.
Held that the plaintiff might enter a nolle prosequi against the infant,
and proceed to judgment against the other defendant.
Van Ness, J. In delivering the opinion of the court observes, “We
are aware, that in the cases of Chandler v. Parks & Danks, (3 Esp.
N. P. Rep. 76) and of Jaffroy v. Fretain, et al. (5 Esp. 47.) which
were circumstanced like the present, the plaintiffs were nonsuited.
These, however, were decisions at Nisi Prius, and we are inclined
CHAP. I.] Of Contracts with Infants,
'iš3.
to adopt a different, and, as we apprehend a more convenient rule.
In doing so, we do not believe that we contravene any established
rule of law. See (1 Wils. 90) and Serjeant William’s note to 1 Saund.
Rep. 207. a. (2 Johns. Rep. 279) (4 Taunt. 468)]
-º-º-º-
Of Contracts made mith an Infant living apart from his Father, &c.
Where a father, living in the country, gives his son, residing in
London, a reasonable allowance for his expenses, the son is solely li-
able for necessaries; and the father shall be wholly discharged
from such liability.
Thus, in the case of Crantz v. Gill,(l) which was an action of as- (i) 2 Esp,
sumpsit brought to recover a sum of money for clothes furnished by Rep. 471,
the plaintiff, who was a taylor, to the defendant’s son, an infant. The
plaintiff proved that the clothes were furnished to the young man, and
that the prices were reasonable.
The case in evidence on the part of the defendant was, that the fa-
ther (the defendant) resided in Cumberland, and had sent his son up
to London to be employed in the business of a haberdasher. That he
had sent him to the care of a Mr. Atkinson, with instructions to him to
pay a proper sum for providing the young man with necessaries suit-
able to his situation.
Mr. Atkinson was called, and he proved the above circumstances;
and that he had in fact paid the son an allowance while he was in
London, by his father's directions; that he had ordered clothes for
him, but never pledged the father’s credit in any respect. -
Per Lord Kenyon. “The goods being furnished to the son, he is
“himself prima facie liable, they being necessaries ; if tradesmen
“ deal with him and he undertakes to pay them, they must resort to
“ him for payment: the father it is true may be liable for necessaries
“*furnished to his son on his credit; but when he gives his son an
“ allowance, that is in lieu of all charges, and the father cannot be
“bound by law to pay even for necessaries furnished to the son under
“ those circumstances. It would be a great hardship on the father
“who would so be obliged twice to pay for necessaries furnished te
“ his son.”
# 16?
So, in the case of Simpson v. Robertson,(m) which was an action (m) 1 Esp.
for goods sold and delivered. Part of the demand was, for clothes
furnished to the son of the defendant,by the plaintiff, who was a tay-
lor.
Wol. I. [20]
Rep. 174
154
Of Contracts with Infants. [PART. II.
(n) 4 Term
Rep. 118.
* 168
Lord Kenyon, Ch. J. said, “he had ruled before, that if a trades-
“man colludes with a young man, and furnishes him with clothes to
“an extravagant degree, that though the father might have been liable,
“ had they been to a reasonable extent, that the tradesman who gives
“ credit to such an extravagant degree, shall not at law be allowed to
“ recover.”
*º-
Of the liability of a Father for Necessaries furnished to his Son-
in-law.
A man is not bound in law to provide necessaries for his wife’s child
by a former husband.
Thus, in the case of Tubb and others v. Harrison and another,(n)
which was an action of covenant, in which the defendants, who were
father and son, after reciting that differences had arisen between the
son and his wife, and that they had agreed to live separate, covenant-
ed to the plaintiffs to pay the wife an annuity of 50l. a year, and to
pay all the debts contracted by her which her husband was by law li-
able to pay. The breaches assigned were (amongst others) that the
wife had then contracted a debt of 56l. 16s. 9d, to J. Brighton, for
necessary board and lodging, and other necessaries, and for money
paid and laid out for necessaries for Mrs. Harrison, and one John
Perrin, her infant son by a former husband, at her request. On the
trial of this cause, before Lord Kenyon, Ch. J. it was agreed that the
plaintiffs should take a verdict for 150l.; and that it should be refer-
red to an arbitrator to take an account of the particulars of the seve-
ral demands, so that the same might be stated to the court of King’s
Bench, subject to their opinion and direction on the construction of
the covenant in the deed of separation, whereon the action was
brought, and whereby the defendants covenanted to pay all the debts
contracted by Sarah Harrison, the wife, which her husband was by
law liable to pay. The account being now delivered in, it appeared
that several of the items were for the maintenance of her infant soa
by a former husband.
This matter was shorly spoken to at the bar ; and the case of
Rea: v. Munday, reported by the name of Munden in 1 Stra. 190.
was relied on ; where it was held that a husband was not bound to
maintain his wife’s mother. But it not appearing from the statement
of that case, either in Strange or in Burn, whether or not the wife
were alive at the time, the court took time to consider of the point ;
and on a subsequent day,
CHAP. I.] Of Contracts with Infants.
155
Lord Kenyon said, “that he had seen a copy of the order in Rez
“v. Munday, taken from the records of the court, by which it clear-
“ly appeared that the wife was alive when the order was made.
“The court in that case reversed the order of maintenance, on the
“ground that the statute of Elizabeth only extends to natural rela-
“tions. Therefore, on the authority of that case, we are of opinion that
“the husband is not liable for the expences of maintaining the wife's
“child by the former husband ; and consequently that those articles
“in the account must be disallowed.”
But though a man is not bound to provide for the children of his
wife by a former husband, yet if he takes them into his house, and
they become part of his family, he shall be deemed to stand loco pa-
rentis, and be liable to a contract made by his wife for their educa-
tion, &c.
Thus, in the case of Stone v. Carr,(o) which was an action of as- (c) 3 Esp.
sumpsit, brought by the plaintiff, who was a schoolmaster, for the ed-
ucation and maintenance of an infant child.
The child was the son of the defendant’s wife by a former hus-
band. On the defendant’s marriage with the child’s mother, he had
taken possession of an house which she occupied with her children,
and which house had belonged to the first husband ; the business
*she had carried on was continued, and the children were suffered to
live with him as part of the family, and provided for by him while he
was at home.
For the defendant it was given in evidence, that he was gunner of
an India ship ; that during his absence on a voyage, the boy had been
put out to school by his mother, to the plaintiff. His counsel then
contended, that as he had never made any contract or agreement
with the plaintiff, he could not be charged, by reason of any implied
liability ; and cited the case of Tubb v. Harrison.(p)
Rep. 1.
# 169.
(p) Ante,
Lord Kenyon, Ch. J., after referring to the case cited, said, “the ió7.
“present was distinguishable from that : there was no doubt, if a
“man married a woman having children by a former husband, he
“might refuse to provide for them ; and under the authority of the
“ King v. Munday, cited in the case of Tubb v. Harrison, he could
“not be compelled to do it; but if a man did not so refuse to enter-
“tain them, and took the children into his family, he then stood loco
“parentis as to them. Such was the case here ; he had so adopted
“ them, and having gone abroad, and left them in the care of his wife,
“he should hold him to be bound by her contracts made for their
* maintenance and education. If she had any property by her first
“husband, the case was stronger ; for then part of the property, of
15;
Of Father and Son. [PART II,
q) 1 Esp.
ep, 320,
* 170
* which the defendant possessed himself, belonged to the children:
“but even had their father died insolvent, it would not alter his opin-
“ion. The defendant, on his marriage, had no right to take posses-
“sion of the house and business : he had thereby confounded all the
“boundaries of the property and placed himself in a state of respon-
“sibility.” He therefore directed the jury to find a verdict for the
“plaintiff; which they accordingly did.
*º-
Of Contracts made with a Son, an Adult, carrying on the Busi-
ness of his Father, &c.
Where a son ostensibly appeared as the proprietor and conductor
of a business in a trade, not an extensive one, and the father, to
whom the business really belonged, was superannuated and incapa-
ble of conducting it, it was determined that the son was liable on con-
tracts connected with the business.
Thus, in the case of Turrel v. Collett,(ſ) which was an action of as-
sumpsit to recover the value of a quantity of timber alleged to have
been sold to the defendant, who was a carpenter.
*The defence set up was that the timber was furnished to his fa-
ther, and on his credit only ; he being in the same line of business,
and conducting it only for his father.
This defence was met by evidence on the part of the plaintiff, show-
ing, that the father was a man very far advanced in years, without
memory or understanding ; and it was admitted that the son (the
defendant) managed the business ostensibly.
Lord Kenyon, Ch. J. said, “that under the circumstances proved,
“ the defence set up was inadmissible. In great concerns, where
“there were many partners, as in the case of great breweries, for
“example, notwithstanding the old age, infirmity or insanity of one
“ of the partners, the business might still be carried on for the bene-
“fit of the family ; but in little business or concerns, such as the
“present, if the owner became devoid of memory or understanding,
* the business must necessarily be at an end. Here the defendant
“was the ostensible person who conducted the business, and with
“whom the contract was made : the plaintiff therefore had a right to
“apply to him ; nor should he be allowed to turn the plaintiff round,
“by setting up the credit as given to one whose intellectual derange-
“ment incapacitated him from conducting the most trifling concerns
4 of life.”
CHAPTER II.
OF CONTRACTS WITH MARRIED WOMEN.
THE subject of the present chapter will be considered in the
following order ;
1. of Contracts made by a Married Woman with and without the
.4ssent of her Husband.
2. Of Contracts with a married Woman during the Banishment,
&c. of her Husband.
s. Of Contracts with a Feme Covert sole Trader, &c.
4. Of Contracts with the Wife before Marriage.
5. Of Contracts for Necessaries provided for a Married Woman.
6. Of Contracts made by a Woman living with a Man as his Wife.
7. In what cases Husband and Wife ought to sue and be sued jointly.
8. In what Cases the Husband may sue alone, or join his Wife ; and
when the Husband must sue alone.
Ö •-sºº-
*1. Of Contracts made by a Married Woman, with and without the
Jłssent of her Husband.
A married woman has no power to make a contract without the
assent of her husband precedent or subsequent, express or implied:
therefore if she enters into any contract without such assent, it is
absolutely void.(a)
So, if the wife sell or dispose of the goods of her husband, without
his assent, the sale is void; and the husband may recover them back
by action of trover.(b)
So, where the wife buys goods without the consent of her husband,
he is not chargeable for them.(c)
So a note or bill drawn, or indorsed by a married woman, is void.
(a) Ruled by all the Judges in the case of JManby v. Scott, 1 Sid. 120. 1
Lev. 4. 1 Mod. 123,
# 172
(b) Com.
Dig. tit. Ba-
rom & Feme.
(c) 4 Leon.
42.
158 Of Contracts with married Women. [PART. II.
(d) Cited in Thus, in the case of Connor v. Martin,(d) which was an action
3. f brought by the indorsee of a promissory note, payable to Susan Con-
Str. 516. S. nor, or her order, and given to her before marriage ; which note, after
C. her marriage and while covert, she indorsed to the plaintiff; the de-
fendant pleaded that Susan Connor was married at the time of the
making the indorsement; the plaintiff demurred; and the question
upon argument was whether the plaintiff could maintain the action
upon a note indorsed by a feme covert 2 The whole court were of
opinion, that the feme covert could not assign the note, because by
act of law it became the sole right and property of her husband.
(e) 1 East's So, in the case of Barlow v. Bishop,(e) which was also an action
; 1. * by the indorsee of a promissory note against the maker, which note
266. S. C. was drawn payable to one Ann Parry, or order, at two months after
date, for 411. 108. and by her endorsed to the plaintiff. The first
count of the declaration was upon the note, to which were added the
common money counts. At the trial, before Lord Kenyon, Ch. J. it
appeared in evidence, that flnn Parry was a married woman, carry-
ing on trade at Birmingham in her own name, with the consent of her
husband; and that the plaintiff, who lived in London, had furnished her
# 173 with goods to the “amount of the note, dealing with her as a feme sole;
that the plaintiff, after much delay having pressed for payment, the
defendant, with a view to serve Mrs. Parry, gave her the note in ques-
tion, with knowledge of her being married, and with a view that she
should pay it over to the plaintiff, in order to stop his proceeding against
her, which she did by indorsing it over to him. A verdict was taken
for the plaintiff, with leave to the defendant to move the court to en-
ter a nonsuit, if they should be of opinion that the plaintiff could not
recover upon any of the counts.
The court of King’s Bench were of opinion, that the indorsement
was void, and that the plaintiff could not recover upon any of the
counts.
Lord Kenyon, Ch. J. said, “I saved the point at the trial, not from
“any doubt entertained by myself at the time, but to give an oppor-
“tunity to the plaintiff’s counsel to see if there were any ground upon
“which the action could be sustained ; but none has been nor can be
“stated. It is clear, that the delivery of the note to the wife vested
“the interest in her husband; and as he permitted her to carry on
“trade on her own account, and this was a transaction in the course
“ of that trade, if she had indorsed the note in the name of her hus-
“band, I am not prepared to say that that would not have availed ; as
“many acts of this nature may be done by a power of attorney ; and
“ the jury might have presumed what was necessary in favour of an
“ authority from her husband for this purpose. But the indorsement
CHAP. II.] of Contracts with Married Women. 159
“being in her own name, it is quite impossible to say that she could
“pass away the interest of her husband by it. And this is not like a
“ note payable to the order of a fictitious person to whom no interest
“ can pass; but here the interest passed to the husband. Neither is
“ there any colour for saying that the plaintiff can recover upon
“the money counts. No money passed between these parties.”
So the executor of a feme covert, who lived apart from her husband
and traded as a feme sole, is not liable to be sued at law for debts con-
tracted by the wife during her coverture, whilst living in a state of
separation.
Thus in the case of Clayton v. Adams,(f) executors of Mary Byrne, (ſ) 6Term
which was an action of assumpsit against the defendant, as executor }; ; tit.
of Mary Byrne, for goods sold and delivered to her. Plea, that Mary Contracts by
Byrne, at the time of making the supposed "promises, was covert of *... Co-
one Arthur Byrne. Replication that Mary Byrne, at the time of Trader.
making the said promises, and from thence until her death, lived # 174
separate and apart from the said Arthur, and carried on the trade
and business of a haberdasher, as a feme sole, and that the plaintiff
never knew of or trusted the said ſirthur, but dealt with the said
Mary as a feme sole, and on her credit; and in the course of such
dealings for goods sold by him (the plaintiff) to her as such feme sole,
she made the said promises, &c.; that after the death of the said
Mary, the defendant, as her executor, took and possessed divers goods
and chattels, which were of and in possession of the said Mary as
such feme sole, to the amount of more than the damages sustained by
the plaintiff by reason of the non-performance of the said promises,
&c. and whereout, as such executor, he ought to have satisfied the
same, &c. To this replication the defendant demurred, and the
plaintiff joined in demurrer. And, upon argument, the counsel for
the plaintiff cited the cases of Norton v. Turvill (g) and Hulme v. Ten-
ant,(h) in which it had been holden in the Court of Chancery that the $.” 44.
separate estate of a feme covert was liable for the discharge of her (h) 1 Bro.
bond debt. Ch. Cas. 16.
But the court in this case gave judgment for the defendant; and
Lord Kenyon, Ch. J. said, “To the equity cases that have been cited
“I fully subscribe : but they cannot govern usin a court of law. A (17 Johns.
“court of equity can mould interests differently from a court of law ; Rep. 548.)
“ and can give relief in cases where a court of law cannot. In order
“to enable the plaintiff to recover in this action he should have shown
“ that the feme covert, when alive, might have been sued, and that the
“defendant was possessed of that property in respect of which she
“was liable : but it does not appear that this could have been the se-
“ parate property of the wife, And the probate of the will of the wife
160
Of Contracts with Married Women. [PART II.
(i) Corbett v.
Pselnits and
wife, 1 Term
Rep. 5. Et
zide the se-
veral cases
there cited.
# 175
(k) 8 Term
Rep. 545.
See also
JHatchet and
another v.
Baddeley. 2
Bl. Rep.1079.
et post
(16 Johns.
Rep. 231.)
“ was absolutely void : We cannot determine that an action might
“ have been maintained against this feme covert, without also saying
“ that she might have been taken in execution: but that would operate
“as a divorce between the husband and wife.”
In some modern cases(?) it has been decided that a married wom-
an living apart from her husband, and having a separate maintenance
secured to her by deed, may contract and be sued as a feme sole, *and
that her second husband is liable for debts contracted in the life-time
of her former husband, during the state of separation.
But in the more recent case of Marshall v. Rutton(k) these decis-
sions were reviewed and considered; and, after several arguments
at the bar, it was solemnly determined by all the judges, that a feme
covert cannot contract and be sued as a feme sole, even though she be
living apart from her husband, having a separate maintenance secur-
ed to her by deed.
Lord Kanyon delivered the judgment of the court in this case as
follows: “ This is an action of assumpsit brought by John Marshall
“ against Mary Rutton, for goods sold and delivered to her, for
work and labour, and money laid out to her use, and on other gen-
eral counts. To this the defendant has pleaded her coverture with
one Isaac Rutton, who is still alive. The plaintiff has replied, that
before the making of the promises of the defendant, she and her hus-
band had mutually covenanted and agreed to live separate and a-
part; that a separation accordingly took place between them, and
that they have continually from thenceforth lived, and still live sep-
arate and apart ; that a competent separate maintenance, suitable
to the estate and degree of the defendant, of 200l. per annum, was,
in due form of law, secured to her by deed during the joint lives
of her and her husband, which has been duly paid to her; and that
the promises in the declaration were made subsequent to the sepa-
ration of her and her husband. The defendant has rejoined, admit-
ting the separation between the defendant and her husband before
the promises, &c. and stating the deed mentioned in the replication
as being a deed of articles of agreement made between the said Isaac
Rutton and herself, of the one part, and Thomas Rutton of the oth-
“er part, whereby it was provided that the separate maintenance
“ should be paid for such time only as the defendant should suffer the
said Isaac Rutton to live separate and apart from her, and the defend-
ant should maintain a chaste, due, and becoming conduct, and should
“support and keep Mary Rutton and Elizabeth Rutton, their two
“youngest children without any other charge or incumbrance to the
“ said Isaac Rutton, &c., concluding with a traverse of the said Se-
“parate maintenance being secured to her during the joint lives of
“her and her husband. To this rejoinder the plaintiff having craved
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Chap. II.] Of Contracts with Married Women.
ičí
“oyer of the articles of agreement, has demurred, assigning various
“causes *which need not be stated; and the defendant has joined in
“demurrer. -
“The general question which arises on this record, is, whether by
“any agreement between a man and his wife she may be made le-
“gally responsible for the contracts she may enter into, and be liable
“to the actions of those who may have trusted to her engagements,
“as if she were sole and unmarried. On account of the magnitude
“of the question, and from respect to the authority and learning of
“ those judges, who in some late cases have holden that a feme covert
“living so separate from her husband, is liable to be thus sued, we
“ thought this a case fit to be argued before all the judges; and it
“has been twice argued, once in Easter term, 1798, before all the
“ then Judges, except Mr. Baron Perryn, and again in this term(ſ) (l) Eästéf
“before all the present Judges, except Mr. Justice Buller, whose ab-Term, 1800.
“sence on every account we had occasion to lament. And, after a
“very full consideration, the opinion of all the Judges, who heard
“ the last argument, is, that this action cannot be supported.
“The ground on which the plaintiff in this case rests his claim, is
“an agreement between the defendant and her husband to live sepa-
“rate and apart from each other. That is a contract supposed to
“ be made between two parties, who, according to the text of Littleton,
“s. 168. being in law but one person, are on that account unable to
“ contract with each other; and if the foundation fail, the consequence
“ is, that the whole superstructure must also fail. This difficulty
“ meets the plaintiff in limine. If it did not, and the parties were
“ competent to contract at all, it would then become material to con-
“sider how far a compact could be valid, which has for its object the
“ contravention of the general policy of the law, in settling the rela-
“tions of domestic life, and which the publicis interested to preserve;
“ and which, without dissolving the bond of marriage, would place
“ the parties in some respects in the condition of being single, and
“ leave them in others subject to the consequences of being married;
“ and which would introduce all the confusion and inconvenience
“ which must necessarily result from so anomalous and mixed a chara
“ acter. In the course of the argument some of these difficulties
“were pointed out; and it was asked, whether after such an agree-
“ment as this the temporal courts could prohibit, ifeither party were to
“sue in the Ecclesiastical Court for *the restitution of conjugal rights?
“whether the wife, ifshe committed a felony in the presence of her hus-
“band, would be liable to conviction? whether they could be witnes-
“ses for and against each other ? whether they could sue and take
“each other in execution? And many other questions will occur to
“every one, to which it will be impossible to give a satisfactory an-
“swer. For instance, it may be asked hew it can be in the power
“of any persons by their private agreement to alter the character and
Wol, I, [21] -
4.
# 177
16%
Qf Contracts with married Women. [PART II,
& 178
(m) Citéd in
the case of
Corbet v. Po-
elnitz. 1
Term Rep. 6
* condition which by law results from the state of marriage, while it
“subsists, and from thence to infer rights of action and legal respon-
“sibilities as consequences following from such alteration of charac-
“ter and condition ? or how any power short of that of the legislature
“ can change that which, by the common law of the land, is establish-
“ed as the course of judicial proceedings.
“The argument in favour of the plaintiff rested on this position one
* ly, as a principle, viz. that where the husband ceases to be the pro-
“tector of his wife, and is not liable to have any claim made on him
“ for her support and maintenance, it necessarily follows that she her-
“self must be her own protectress, make contracts for herself, and be
“responsible for them. But if this were a necessary consequence, it
tº would hold in all cases : but that is not so : for if a woman should
“elope from her husband, withdraw herself from his protection, and
“live in adultery, he is not by law liable to answer for her necessa-
“ries; and no case has decided that the woman is. A wife living
“apart from her husband, and who has property secured to her sepa-
“ rate use, must apply that property to her support, as her occasions
“may call for it; and if those who know her condition, instead of re-
“quiring immediate payment, give credit to her, they have no great-
“er reason to complain of not being able to sue her, than others who
“ have nothing to confide in but the honour of those they trust. From
“the incapacity of a married woman to contract or to possess person-
“ al property which may be the subject of contract, men and their
“ wives, desirous of living separate, have found it necessary to have
“recourse to the intervention of trustees, in whom the property, of
“which it is intended she shall have the disposition, may vest un-
“controuled by the rights of the husband, and with whom he may
“contract for her benefit; but in such property the woman herself
“acquires no legal interest whatsoever. Of such trusts courts of Eq-
“ uity alone can take notice; they can cause the fund to be brought
“before them to be applied as in justice it ought to be ; and
“in those courts the creditor must prefer his claim.
“*The earliest cases on this subject proceed on the ground of the
“husband being considered as dead, and the woman as being in a state
“ of widowhood, or as divorced a vinculo matrimonii, in which light
“Rutton and his wife do not stand. And until the cases of Ring-
“ stead v. Lady Lanesborough, Barwell v. Brooks, (m) and some sub-
“sequent cases, which we wished to have re-considered, we find no
“ authority in the books to show that a man and his wife can by a-
“greement between themselves change their legal capacities and
“characters; or that a woman may be sued as a feme sole while the
“relation of marriage subsists, and she and her husband are living in
“ this kingdom.”
GHAP. II.] Of Contracts with Married Women. 16.
“For these reasons our opinion, in conformity with that of all the
“Judges who heard the last argument, is, “that there must be judg-
** ment for the defendant.” ”
But a contract made by a married woman with the assent of her
husband, is good; and shall be taken as the contract of the hus-
band.(n) (m) 4 Win,
Abr. tit. Ba.
ron & Feme.
So, where a wife traded by her husband’s consent, and gave bills E. a. pl. 20,
for money, and he received the profits. The wife borrowed 100l. #º.
and died, and a bill was brought against the husband for the money. See also far-
An issue was directed to try whether the money was borrowed for low v. Biº-
earrying on the trade; for if it were, the husband should be decreed *ś,
to pay it.(o p. 173.
pay it.(0) (o) 2. Freem.
& º • tº Rep. 215, pl.
So, if the wife of A. receives 10l. to the use of B. and this comes 288,
to the profit of Jì. in a convenient and necessary way, though it was
without 4.’s order or consent after, yet ºff. is liable to this debt,
and the count or declaration shall be of a receipt by the hands of the
baron.(p) (p) Jenk. 4,
pl. 5.
So, if a feme covert, without any express authority from her hus-
band, contract with a servant by deed, the servant having performed
the service stipulated, may maintain assumpsit against the husband.(a) (a) whilex,
Guyler, 6
So, where a husband permits his wife to act for him in any depart- º Rep.
ment or business, her contracts and acknowledgments shall bind the
husband.
*Thus, in the case of Emerson v. Blonden,(r) which was an action # 179
of assumpsit for the use and occupation of certain rooms in the plain- (r) 1 Esp.
tiff’s house, which had been let to the defendant. Rep. 142.
(10 Johns,
A. Rep. 38.)
The defendant and his wife had taken the apartments at a certain
rent, the wife had made the bargain, and had agreed to give three
months’ notice of quitting. Having quitted without notice, the ac-
tion was brought to recover the three months’ rent.
A witness for the plaintiff proved a demand of the rent from the
defendant’s wife, and that she had acknowledged the sum claimed to
be due, and had promised payment.
The counsel for the defendant objected to this evidence, as it was
admitting the declarations of the wife, and her acknowledment of debt
to charge the husband.
.#54
Of €ontracts with Married Women. [PART II.
It was answered by the plaintiff’s counsel, that the defendant hav-
ing, in the present instance, permitted his wife to act for him, in ma-
(ió Johns.
Rep. 281.)
# 180
(i) Goram
Yates, Just.
pm the North-
erm Circuit,
cited in 1
Term Rep. 6.
king the agreement, and settling the terms upon which the lodgings
were taken, that he had thereby constituted her his agent for that
purpose, and should therefore be bound by her acts and admissions.
Lord Kenyon, Ch. J. said “that the rule of law had been correct-
“ly stated by the plaintiff’s counsel, that where a wife acts for her
“husband in any business or department, by his authority and with his
“assent, that he thereby adopts her acts, and must be bound by any
fº admission or acknowledgment made by her respecting that business,
“in which by his authority she has acted for him, and that therefore
* in the present case her admission of the debt due to the plaintiff on
tº account of the lodging, was competent and admissible evidence to
“charge the husband.”
*_*
5
2, of Contracts with a Feme Covert during the Banishment, &c.
of her Husband,
We have already seen that the contracts of a feme covert are in
general void, unless made with the assent of the husband. But in
the case of banishment, abjuration, or exile, the law considers the
husband as civilly dead, and therefore permits the wife to contract,
and sue or be sued as a feme sole ; for it would be unreasonable “that
she should be remediless on her part, and equally hard upon her cre-
ditors, who not having any remedy against the husband, should be
without remedy against the feme,(s)
So, an action lies against a feme covert, though the banishment be
only for a limited time.
Thus, in the case of Sparrow v. Carruthers,(t) which was an action
upon a note of 10l. given by a married woman, who kept a public
house, for some malt. The defence relied on, was the defendant's
coverture. But, upon the trial, the plaintiff proved that her husband
had been transported, and his time was not expired. The question
was, whether she was liable. Yates, Justice, thought the court must
consider the transportation as suspending her disability. A verdict
was accordingly found for the plaintiff.
(s) Bro. Abr. tit. Baron & Feme, pl. 66. Lady Belk, ap's case. 1 H. 4. 1.
. 12. 2 H, 4. f. 7 a. Co. Lit. 132. b. 138 a. 1 Roll. Hºep. 400. Mo. 85, 1
$º. 140, 3 Bulst, 188. Bac. Abr. tit. Baron and Feme, M,
CHAP. II] Of Contracts with Married Women. 165
The principle of this rule of law has also been extended to cases
where the husband has resided abroad, without any probability of re-
turning to England, and where the wife has represented herself, and
contracted as a feme sole.
Thus, in the case of Derry v. the Dutchess of Mazarine,(w) which (w) 1 Ld.
was an action of assumpsit, brought against the defendant, for wages Raym. 147.
and money lent; the defendant pleaded coverture, and issue there- *"...i. 2
upon. And notwithstanding there was very strong evidence at the wis. 308.
trial, that the Duke of Mazarine, the defendant's husband was alive ****
• º tº a tº and Pull. 339
in France, the jury found for the plaintiff; because the Dutchess had where the
lived in England for twenty years as a feme sole, and had contracted Yerdictin
continually as such ; and he, wh her husband l; this case is
y 2 , Who was her husband, Was an atten €ree- considered as
my. It was moved, on behalf of the Dutchess, that this verdict was being clearly
against evidence and law, for a fame covert cannot be solely charged ..".
for debts and contracts, without divorce and alimony, although the hus-ty only made
band be a foreigner. But by Holt, Ch. J, “when the husband is an alien ...;
“enemy, and under an absolute disability to come and live here, the the new trial.
law perhaps will make the wife of such an husband chargeable as a ....”
cases which
“feme sole for her debts and contracts.” follow.
*So, in Walford v. The Dutchess De Pienne, (v) which was an ac- # 181
tion of assumpsit for goods sold and delivered. Plea of coverture. (), *.*P:
& e º e tº 54. and i
The evidence in support of this plea established the fact of marriage; in: cº,
and further, that the Duke, who was a foreigner, had gone abroad in against the
the year 1793, and had not since returned ; during that interval the *º
Dutchess had kept house, and paid bills for goods furnished on her Franks. Ibid.
own account, and in her own name ; but the witness who proved 587. S. P.
those facts said, that the Duke, on his going abroad, had proposed to
remain abroad only for four months, and as the witness believed, had
not abandoned his intention of returning to this country, though he
had not yet done so.
Upon this evidence Lord Kenyon, Ch. J. ruled, that the defendant
was liable. His Lordship said, “the present case came within the
“principle of the old common law, where the husband had abjured
“ the realm. If the husband had been absent for some time, and then
“returned and paid bills contracted by the wife in his absence, and
“ again left the kingdom, he should hold the wife not liable; but here
“ was a desertion of the kingdom, and an absence of some years;" he
“ was no longer domiciled here, and in the interval his wife was sup-
“plied with those articles; if she was not to be held liable for debts
“contracted under such circumstances, she might be starved.”
* About three years.
166
of Contracts with Married Women. [pany. H.
(w) 1 Bos.
and Pull,357.
$ 1.82
(a) 1 Term
Rep. 5.
(y) 4 Term
Rep. 766.
(2) 6 Term
Rep. 694,
So, in De Gaillon v. L’Aigle,(w) which was an action of indebita-
tus assumpsit for money paid, &c. The defendant pleaded cover-
ture with John Martin Harel L’Aigle. The plaintiff replied, that
before the making of the promises and undertakings in the said dec-
laration mentioned, and from thence hitherto, the said John Martin
Harel L’Aigle lived and resided in parts beyond the seas, out of this
kingdom, to wit, at Hamburgh ; and that during all that time the
said Victoire Harel L’Aigle lived in this kingdom separate and apart
from the said John Martin Harel L’Aigle, and followed and carried
on the trade and business of a merchant, as a single woman, and a
sole trader, to wit, at Westminster, &c.; that the plaintiff did not
give any credit to the said John Martin Harel L’Aigle, but traded
and dealt with the said Victoire Harel as a feme sole, and on her sole
credit; and that the said Victoire Harel made the said several pro-
mises and undertakings in the said declaration mentioned, as such
feme sole as aforesaid.
*To this there was a general demurrer and joinder. And in sup:
port of the demurrer were cited the cases of Corbett v. Poelnitz,(a)
Gilchrist v. Brown,(y) and Clayton v. Adams.(2) -
But the court held, that the defendant was personally liable and
accordingly gave judgment for the plaintiff.
Buller, Just, said, “There is another set of cases of a very different
“nature from those which have been relied on by the defend-
“ ant; but which are much more applicable to his case. The first
“ of these is the lady Belknap's case “now lefºs see if any sound
“ distinction between that case and this can be maintained. The
“husband there was banished, but. it is not stated whether he was
“banished for one year, or for five years, or for life: it was held suffi-
“cient that he was in banishment at the time when Lady Belknap’s
“contract was made; and I can see but one principle on which the
“ case could have been decided; viz. that the rights known to exist
“in law between husband and wife were not interfered with by allowing
“ the wife to be taken in execution : as the husband was banished,
“(though itbe not stated whether for life or not) the matrimonial rights
“during his banishment were at least suspended. In later times the
“cases have gone further. In Sparrow v. Carruthers,(a) it was shown,
* in answer to evidence of coverture, that the husband was transported
“for seven years only, and after that time was expired, he had a
“right to return and demand the comfort of his wife, even if she were
“in gaol; yet the husband being abroad, and not capable of enjoying the
“matrimonial rights, it was held that the disability of the wife was
“suspended. In those cases the husband was sent out of the country
“for his crimes, whereas here the husband has voluntarily abandon-
“ed his wife, and, for anything that appears, never was in England,
(a) Ibid.
* Ante, 180, note S. - * * * .

CHAP. II: Of Contracts with Married Women,
167
“ and perhaps never may come here. The wife has traded as a feme
“sole, has obtained credit as such, and ought to be liable for her
“ debts.”
Heath, J. “I am of the same opinion. The cases of banishment
“and transportation of the husband are directly in point. Besides,
“it is for the benefit of the feme covert that she should be liable to an
“action in such a case as this, otherwise, she could obtain no credit,
“ and would have no means of gaining her livelihood. The husband,
“perhaps, never was in England, and never may be so that this
“case is not at all like those which proceeded on the ground of a se-
“parate maintenance.” - -
*But, in the case of Farrer v. The Countess Dowager of Gra-
/
# 183
nard,(b) which was an action of indebitatus assumpsit for the use and (b) 1 New
occupation of certain ready furnished lodgings. The defendant ºp. C. B.
pleaded coverture ; to which the plaintiff replied that the defend-
ant's husband lived and resided in Ireland, and that the defendant
lived in England, as a single woman ; and as such single woman,
promised, &c. The courtheld the replication bad on general demur-
rer; the terms of it only amounting to a mere temporary absence.
So, in the case of William Me. Namara and wife v. Fisher,(c)(c) 3 Esp.
which was a writ of error in fact from the Court of Common Pleas Rep. 18.
into the court of King’s Bench. The defendant in error having
brought an action of assumpsit in the Court of Common Pleas for
goods sold and delivered, against one of the plaintiff’s in error, Mar-
garet, the wife of William Me. Namara, she pleaded non assumpsit
and gave her coverture in evidence ; which the defendant in error
had answered by proving that the plaintiff, William, had lived abroad
in West-Indies for fourteen years, and that the goods were sold to
her as a feme sole; that the husband was still abroad; and that she
received from Sir Richard Neave an allowance of a guinea a week,
though it was not secured to her by deed. Eyre, Ch. J. before whom
the cause was tried, being of opinion, that this created a personal
responsibility in her, he directed the jury to find for the plaintiff,
which they did. ' . . .
Upon this the present defendant in error signed judgment, and
the plaintiff, Margaret, was taken in execution. She then brought a
writ of error on the judgment, in her own name and assigned cover-
ture as error in fact. The defendant pleaded in nullo est erratum,
But, upon the case being set down for argument in Easter term 39
Geo. III. the Court, on the authority of a case in the Year Book, 14
Æd. III. cited by Mr. Justice Lawrence, that the husband ought to be
joined, quashed that writ of error.
In Zºrinity term, 39 Geo. III, another writ of error was sued out
in the name of the husband and wife, but without the COIl Currence or
º
168 - of contracts with Married Women, [PART. II.
knowledge of the husband; and her coverture was assigned as error
in fact, as before. - -
# 184 *The defendant pleaded that the husband lived separate and apart
from the wife by his own desire ; and that the feme had a separate
maintenance duly paid to her. -
The plaintiffs in error took issue ; and upon the trial, the same
facts were proved as at the first trial. -
Lord Kenyon, Ch. J. before whom the cause was tried, said, “I
“ think these parties have mistaken their way very much, by coming
“ into this court. I have frequently heard it laid down on the other
“ side of the Hall, and that from very high authority, that the proper
* * course in such a case is to file a bill against a married woman and
“ her trustees in a court of equity; and I remember a cause standing
“over, because that was not done. Here there are no articles of sep-
“aration: to say therefore, on this evidence, that there is an end put
“ to the conjugal relation between those parties, is what I dare not
“ say, in point of law or of conscience. I am pretty sure, that Lord
“Chancellor Ellesemere has said something in Belknap's case (if I
“recollect right, this case is to be found in Co. Litt.)(*) which has
“laid down the law in that case; it is an old case, and of great au-
“thority, to show that this kind of proceeding cannot take place.
“There is no evidence here to show that this woman has a separate
“maintenance. On this evidence, every man’s wife may be said to
“have a separate maintenance, because her husband, as far as his
“abilities go, supplies her with money from time to time. There
“must be a verdict for the plaintiff.”
—-tº-
3. Of Contracts with a Feme Covert sole Trader, &c.
(d) 10 Mod. By the custom of London,(d) if a feme covert exercises any trade
*.*.* in which her husband does not at all concern himself, she may be sued
ton v. Adams, -
ante, 173. as a feme sole, in the City Courts, for debts contracted in the carrying
on of that trade; and if she has not goods that are not her husband’s
she must be imprisoned till she satisfies her creditors; and as she
may be sued, so she may sue as a feme sole for debts owing her, in
her way of trade, and within the city.
- º§º But a feme covert cannot sue or be sued as a feme sole by the cus-
Term Rep. tom of London in the superior courts at Westminster. Her husband
364 ſºard must be joined for conformity.(e) -
and wife v. -
Webb, 2 Bos. - w -: —- -
& Pull. 93. - - - - (*) 132 b. 133 a.
* -- …a - *.
—r-

CHAP. II.] Qf Contracts with Married Women. 169.
*4. Of Contracts with the wife before Marriage. # 185,
All the personal estate, as money, goods, cattle, household furni-
ture, &c. that were the property and in the possession of the wife at
the time of the marriage, are actually vested in the husband; so that
of these he may make any disposition in his life-time without her con-
sent, or may by will devise them, and they shall without any such
disposition go to the executors or administrators of the husband, and
not to the wife, though she survive him.(f) (f) Bac. Abr.
tit. Baron &
g t- & • Feme, C. &
But choses in action, as debts due to the wife which are to be de-
manded by action, though they are likewise so far vested in the hus-
band, that he may reduce them into possession; yet if he dies before
any alteration made by him they shall go to his wife, nor shall they,
without such alteration, survive to the husband upon the death of the
wife, or he have any right to them, but as he is entitled as adminis-
trator to his wife.(g) (g) Ibid, Seb.
also Co. Lit.
e e tº º º 351. a. b. mi.
The husband is also entitled to whatever his wife earns during co- 1.3 Mod.
* 186.
verture.(h) (h) Bull. N.
P. 136.
Therefore, a note payable to a feme sole or order, who afterwards
marries, becomes the property of her husband, and she cannot legally
indorse it over to a stranger during coverture.(?) (i) 3 Wils. 5;
Str. 516. 16
Mod. 246.
[Where a bill of exchange was payable to a feme sole, who inter-
married before the same was due, it was held that the husband might
bring an action in his own name, although the bill had not been indor-
sed. 1 Barn. & Ald. 218.
Ld. Ellenborough, Ch. J. said, “All chattels personal, which the
wife has in possession in her own right are vested in the husband by
the marriage, although he do not survive her. The words chattels
personal are sufficiently large to cover a negotiable instrument of this
sort. No formal indorsement is necessary, for by the act of marriage
itself, he is virtually an indorsee.”
Baily J. “Choses in action, do not vest absolutely in the husband
by the marriage ; for in order to reduce them into possession it is
necessary to join the wife. The case of a negotiable security is a
middle case ; whoever has the instrument in his possession and the
legal right to it, may sue upon it in his own name.”]
But where an estate is vested in trustees for the separate use of (k) Davison
the wife, the husband cannot maintain any action at law against a y...Atkinson,
stranger, for wrongfully receiving the rents and profits thereof.(k) * Rep.
Wol. P. [22]
170
of Contracts with Married Women. [PART II.
(l) F. N. B.
120. F. Bac.
Abr. tit. Ba-
rom & Feme,
F.Com. Dig,
tit. Baron &
Feme, N. &
2 C.
* 186
(m) Wide
JManby v.
Scott, 1 Sid.
128, 9. 1 Ley.
4. 1 Mod.
128. 1 Salk.
118. Com.
Dig. tit. Bar-
on & Feme,
Q. Bac. Abr.
same title, H,
1214.
With regard to debts contracted by the wife before marriage, the
law has provided, that if a man marries a woman who is in debt to
divers persons, the husband and wife, during coverture, shall be sued
for the debts: but if the wife die, and the creditors have neglected to
recover their debts, the husband shall not be charged therewith after
the death of his wife : for the debts must be recovered in the life-time
of the wife.(l)
*5. Of Covenants for Necessaries provided for a Married Woman,
The husband, during coverture, is not only liable to the debts of
his wife before marriage, but is also obliged to maintain his wife, and
find her with necessaries, as meat, drink, clothes, &c. suitable to his
estate and condition in life. And though the wife has no power to
bind her husband by any contract of hers, even for necessaries, with-
out his assent eaſpress or implied, yet it is settled, that whilst she co-
habits with her husband, he shall be chargeable for all contracts made
by her for necessaries; and his assent thereto shall be presumed on
account of the cohabitation, unless the contrary appear. Such con-
tracts, however, are considered in law as the contracts of the husband,
and he alone is chargeable.(m)
So, where the husband leaves his wife, or refuses to permit her to
live with him ; or if he treather so ill as to oblige her to depart from
his dwelling; in either of these cases the law makes the husband lia-
ble to her contracts for necessaries.
Thus, in the case of Bolton v. Prentice,(n) which was an action of
assumpsit for goods sold and delivered to the defendant’s wife : the
case appeared to be that the defendant and his wife had formerly lod-
ged at the plaintiff’s house, and the plaintiff furnished her with goods;
and the defendant finding the plaintiff had helped her to pawn her
watch, and suspecting he confederated with her, left the lodgings, af-
ter paying the plaintiff his bill, and forbiding him ever trusting her
again.
After this the defendant and his wife cohabited together for a year,
when without any cause appearing, he left her, locked up her clothes,
and upon her finding him out, refused to admit her, and struck her,
and declared he would not maintain her, or pay anybody that did.
In this distress she borrowed clothes of her friends, and applied to
the plaintiff, who furnished her with necessaries according to the de-
fendant’s degree ; which the defendant refusing to pay for, this action
was brought; and upon trial the jury found for the plaintiff.
GHAP. II.] of Contracts with Married Women.
ifi
Upon motion for a new trial, the court held that the verdict was
right; for whilst they were at the plaintiff’s, there was a particular
reason for the particular prohibition; yet the causeless turning ther
away destitute, afterwards, gave her the general credit again ; and if
a husband should be allowed, under the notion of a particular prohi-
bition, to destroy her obtaining credit in one place, he may in the
same manner prevent it with all people she is acquainted with. He
appears to be a wrongdoer, and therefore has no right to prohibit any
body. They distinguished this case from that of Manby v. Scott, 1
Sid. 109. for there the wife was guilty of the first wrong in eloping.
So, in the case of Thomson v. Hervey,(0) which was an action
brought against the defendant for lodging and necessaries for his wife,
during her residence at Bristol ; (which her health absolutely re-
quired ;) wherein a verdict had been given for the plaintiff, against
Mr. Hervey. It appeared from Lord Mansfield's report of the evi-
dence that she had herself paid part of the money, viz. what was
due to the plaintiff for the former part of the time ; and that she had
a pension, during pleasure, from the crown, determinable at the will
of the crown, of 300l. a year, granted to her in her own name, but not
by any agreement or otherwise appropriated at all to her own use :
that at her return from Bristol, her husband shut his doors against
her ; that Mr. Hervey had never made or agreed to make any sepa-
rate allowance to her, or had contributed any thing towards her sup-
port, since he had so shut his doors against her ; nor had she any
use of his table, servants, or equipage : and there was evidence given
of his being reputed to have an income of about 1,800l. per annum.
The court held, that the husband was liable to this action; and said,
“ Here is no agreement for a separation : but he has sent her adrift,
“ by shutting his doors against her. He allows her no separate main-
“ tenance, nor any support at all. And there is no pretence of this
“ lodging and other support provided for her by the plaintiff, being
“ improper for her degree and condition of life. And as she had no
* maintenance from her husband, nor admittance into his house, she
“ was obliged to procure lodging and maintenance somewhere else.
“Every man is obliged to maintain his wife. The pension is only a
“voluntary grace and bounty of the crown, and only during the pleas-
“ure of the crown ; not what any creditors of hers even for her nec-
“essary subsistence suitable to her degree and rank of life can be
“ supposed to give her credit upon.”
* 187
(o) 4 Burr.
2177.
So, in the case of Robinson v. Gosnold.(p) where it appeared that Ø 6 Mod.
1 Salk.
a husband discovering his wife to be a very lewd woman, went away 119. S. C.
*from her ; and she, after having lived several years with an adulter-
er, was received into the plaintiff’s house, who entertained her as the
husband’s wife. And this action being an indebitatus assumpsit
# 188
172
Of Contracts with Married Women. PART II.
Ad) 4 Esp.
Rep. 41.
% F89
against the husband for lodging and dieting the wife. Holt, Ch. J. at
nisi privas, held, that let the woman be ever so vicious, yet, while she
will cohabit with the husband, he is bound to provide necessaries for
her, and he is liable to an action of such as furnish her with them, for
his bargain was to take her for better for worse. In like manner it is,
if the husband turns his wife away for her wickedness, he remains
still chargeable for her necessaries. But if the wife leaves her hus-
band, they that trust her after it is notorious that she has left him,
do it at their peril, and shall not thereupon charge the husband.
And he seemed to be of opinion, that if a wife had run away from
her husband, and contracted debts, and after the husband received her,
or came after her, and laid with her but for a night, that would make
him liable to the debts. Like the case where a wife elopes with an
adulterer, though she thereby forfeits her dower, yet if the husband
will of his own accord receive her again, she shall have her dower.
So, in the case of Harris v. Morris,(q) which was an action of as-
sumpsit brought to recover a sum of money claimed by the plaintiff
for meat, drink, and other necessaries, furnished to the defendant’s
wife.
The plaintiff’s counsel stated, that the wife having been turned out
of doors by the defendant, had taken shelter with the plaintiff; where
she was entertained, and furnished with necessaries.
The defendant denied that she was turned out ; but relied on her
having been seen in improper familiarities with a person living near
her house, though he could produce no proof of actual adultery : that
she had formerly eloped for adultery, and been in the Magdalen ºff-
sylum ; but that he had afterwards taken her back : that he had ad-
vertised her in the newspapers, and cautioned persons from trusting
her on his credit: lastly, that he was a journeyman tradesman, and
incapable of making her any allowance.
In answer to the last matter relied on by the defendant, it was
proved, that the defendant had said, that his wife had ten guineas a
year, independent of him; and that he could allow her 5s. per week
addition. This was pressed by the plaintiff’s counsel as having *been
ruled by Lord Mansfield, to be evidence of the husband's ability to
that extent.
Lord Kenyon, Ch. J. said, “ the defendant has urged several mat-
“ters in bar of this action : but none appear to me to amount to a
“legal defence. With respect to her having been formerly guilty of
“adultery and having been in the Magdalen.ſlsylum, though an adul-
“terous elepement will prevent the husband from being liable for ar-
“ticles furnished to the wife during the term of her elopement, that is
“ no answer now. The husband has taken her back; and she was
" from that time entitled to dower : she was sponte retracta, and of
CHAP. II.] Of Contracts with Married Women.
173
“ course entitled to maintenance during coverture, if her husband
“turned her out of doors.
“The next defence is, that he advertised her in the newspaper, and
“ forbid persons to trust her: that cannot avail him ; for if he put her
“ out of doors, though he advertised her, and cautioned all persons not
“ to trust her : or if he even gave particular notice to individuals not to
“give her credit, still he would be liable for necessaries furnished to
“ her; for the law has said, that where a man turns his wife out of
“ doors, he sends with her credit for reasonable expenses.
“With respect to the offer of five shillings per week, I agree with
tº what my Lord Mansfield has said, “that it is evidence to go to the
“jury of the husband’s liability ;' but the jury ought to consider the
terms upon which it was offered.” A juror was withdrawn by con-
sent.
So, in the case of Hodges v. Hodges,(r) which was an action of as-
sumpsit brought by the plaintiff (who was the son of the defendant)
to recover a sum of money for the board and lodging of his mother, the
defendant’s wife. The plaintiff’s case was, that the wife had been
compelled to leave her husband’s house in consequence of grossill
treatment and cruelty. Evidence was given to this effect; but it ap-
peared, that she had voluntarily left the defendant’s house, though
it proceeded from apprehensions of his ill treatment and barbarity.
It was contended, for the defendant, that though in case the hus-
band turns the wife out of doors, he sends with her credit for neces-
saries, the rule of law did not apply, where she voluntarily quitted it.
*Lord Kenyon, Ch. J. said, “That where a wife's situation in
“her husband’s house, was rendered unsafe from his cruelty or ill
“treatment, he should rule it to be equivalent to a turning her out of
“the house, and that the husband should be liable for necessaries fur-
“nished to her under those circumstances.”
So, in the case of Ewers v. Hutton,(s) which was a similar action
(r) 1 Esp.
Rep. 441.
* 190
(s) 3 Esp.
to the last : And it was proved, that the defendant had treated his Rép. 255.
wife with much barbarity, and turned her out of doors: that the plain-
tiff received her into his family, and furnished her with necessaries;
for which the present action was brought.
There was also evidence given, that some time after the wife had
been turned out, she returned and rung at the bell, the defendant
went down to the door, and refused to admit her.
It was proved, that the wife had had between 3 and 400l. fortune
when she married. .
The defence was, that the absence of the wife, for part of the time,
was an elopement; as she might have returned to her husband's
174
Of Contracts with Married Women. [PART II.
% 191
house: *dly. That a separate maintenance was secured to her some
time after her leaving her husband’s house. To prove which, the de-
fendant gave in evidence a deed of separation executed by the hus-
band and wife; but it was not executed by the wife’s trustee, who
was a party to it.
Lord Eldon, Ch. J. said, “There was no doubt of the law, that
“ where a husband, either from ill treatment, compelled his wife to
“ leave his house, from motives of personal safety, or turned her out
“of doors, that any person who afforded her protection, and fur-
“nished her with necessaries correspondent to his rank and situation
“in life, could compel the husband to pay for them, but that in ascer-
“taining what suited his circumstances, the fortune which the wife
“brought could not enter into the consideration: the jury were to
“regulate their verdict by what the husband’s circumstances were
“when the separation took place.
“As to the question of elopement, it did not appear clearly, whe-
“ther the term elopement in the books, meant an adulterous elopement
“ or not: here there was no imputation of an adulterous elopement:
“but it was settled in a case in Lord Raymond’s Reports(t) to
“*which he subscribed, that if the wife had eloped, and afterwards
“solicited to be received again, and the husband refused to receive
“her, from that time he was bound for necessaries furnished to her;
“and that seemed to be the case, taking it even to have been a volun-
“tary elopement by her.
“As to the deed of separation produced, it was waste paper, it was
“binding in no degree ; it was executed by the husband and wife;
“but the wife had no will of her own; she could execute no deed;
“ she could not covenant with her husband; she could only contract,
“by the means of a trustee, who became bound for the performance
“ of what she contracted to do: here he had not executed the deed.
“The husband could not therefore be sued; and the deed was of no
“ avail.”
His Lordship therefore concluded with observing, “that the wife
“having solicited to be received into the defendant’s house, and be-
“ing refused by him, he was bound to provide her with necessaries;
“ and that the deed of separation furnished him with no defence.”
So, where a husband goes abroad and leaves his wife, who dies in
his absence, a third person who voluntarily pays the expenses of her
—y,
(f) I have not been able to find the case alluded to by his Lordship in Lord
{
Raymond's Reports. And see the cases of Child and others v. Hardymax,
post, and Govier v. Hancock, post, where it was held that a husband is not
bound to receive his wife after she has been living apart from him in a state of
adultery. See also the cases of Bolton v. Prentice, ante, 186. Robison v. Gos-
mold, ante, 187, and JManby v. Scott, post, 193.
Chap. II.] of Contracts with Married Women. 175
funeral, (suitable to the rank and fortune of the husband,) though
without the knowledge of the husband, may recover from him the mo-
ney so laid out, especially if such third person be a relation of the
wife.
Thus, in the case of Jenkins v. Tucker,(v) where it appeared the () 1 H. Bl,
defendant married the plaintiff’s daughter; and some time after the ‘90.
marriage, went to Jamaica, leaving her and her infant child in Eng-
land. During his absence she died; and the action was brought by
her father against the husband, to recover the money which he had
expended after her death, in discharging debts which she had con-
tracted while her husband was in Jamaica, (by living with her child
in a manner suitable to her husband’s fortune) and in defraying the
expenses of her funeral, which were also proportioned to the hus-
band’s fortune and station.
The court determined that the husband was liable. Lord Lough-
borough, Ch. J. said: “I think there was a sufficient consideration
“*to support this action for the funeral expenses, though there was % 192
“neither request nor assent on the part of the defendant, for the
“plaintiff acted in discharge of a duty which the defendant was un-
“der a strict legal necessity of himself performing, and which com-
“mon decency required at his hands; the money therefore which the
“plaintiff paid on this account, was paid to the use of the defendant.
“A father also seems to be the proper person to interfere, in giving
“ directions for his daughter’s funeral, in the absence of her husband.
“There are many cases of this sort, where a person having paid mo-
“ney, which another was under a legal obligation to pay, though with-
“out his knowledge or request, may maintain an action to recover
“back the mouey so paid; such as in the instance of goods being dis-
“trained by the commissioners of the land tax, if a neighbour should
“redeem the goods, and pay the tax for the owner, he might maintain
“an action for the money against the owner.”
So, assumpsit lies against a husband for money lent to his wife upon
his express assent.(u) But such an action will hot lie on an implied (w) 3 Wils.
promise, though the money may be even laid out in necessaries for 388. 2 B1.
the wife.(w) And in the first case the money should be stated to § º,
have been lent to the husband. Abr. 119.
126, 7. 1
- º S lk. 387.
So, in the case of Stone v. Carr,(a) it was held, that though a hus- 3.
band is not bound to provide for the children of his wife by a former º 3 ºri,
husband, yet if he takes them into his house, and they become part of ...s. p.”
his family, he shall be deemed to stand loco parentis, and be liable in
a contract made by his wife for their education, &c.
176
Of Contracts with Married Women. [PART II.
* 193
*
It should be observed, that in all these cases the things supplied to
the wife must be proved to be necessaries suitable to the estate and ,
condition of the husband; for if they be not, he will be discharged.
Though a husband is bound to provide necessaries for his wife as
long as she cohabits with him; or whilst he absents himself from her,
or she is obliged to live apart from him on account of his ill usage to
her; yet if she voluntarily departs from his dwelling and lives apart
from him without his consent; or, if the husband absolutely *declares
his dissent that she shall not be trusted; any person having notice of
this dissent, trusts her at his peril; for the husband is only liable up-
on account of his own assent to the contracts of his wife, of which as-
sent, cohabitation causes a presumption; and when he has declared
the contrary, there is no longer room for such a presumption. For
the wife has no power originally to charge her husband, but is abso-
lutely under his power and government, and must be content with
(y) 1 Sid. 109.
1 Lev. 4. 1
Mod. 128. S.
C.
(*) 2 Ld.
Raym. 1006.
i Salk. 118.
what he provides, and if he does not provide necessaries, her remedy
is in the spiritual court.
Thus, in the case of Manby v. Scott,(y) where the wife of the de-
fendant departed from him without his consent; and during her ab-
sence the husband prohibited several persons, and among the rest, the
plaintiff, from trusting her: and, after an absence of twelve years, she
made a request to cohabit again with her husband, but he refused to
receive her. The plaintiff sold her silk and velvet to the value of 40l.
which were found suitable to the degree of her husband.
It was solemnly determined by eight judges against three, that the
husband was not chargeable in this case; for the prohibition, here
stated, took away all presumption of any consent of the husband to
the contract, either expressed or implied.
So, in the case of Etherington v. Parrott,(z) which was an action of
indebitatus assumpsit for goods sold and delivered. At the trial be-
fore Holt, Ch. J. at Guildhall, the evidence to charge the defendant
was, that the goods were taken up by the defendant’s wife to make
her clothes, and that they cohabited together : but on the defendant’s
side it was given in evidence, that his wife was an extravagant wo-
man, and used to pawn her clothes for money to buy drink; that
she pawned a suit of clothes which cost 7l for 11. 8s. and when her
husband redeemed them, pawned them again ; that at the time of
buying these, she had very good clothes; that she had bought clothes
of the plaintiff before, and her husband had paid for them ; but when
he paid for them he gave notice to the plaintiff’s servant, who received
the money, that his master should trust her no more, which he promis-
ed not to do. And by Holt, Ch. J. “If a husband turns away his
“wife, he gives her credit wherever she goes, and must pay for nec-
CHAP. II.] Of Contracts with Married Women,
17?
“essaries for her; but if she runs away from him, he shall ‘not be
“liable to any of her contracts, for it is the cohabitation that is an evi-
“dence of the husband’s assent to contracts made by his wife for
* necessaries. But if the husband has solemnly declared his dissent,
“ that she shall not be trusted, any person that has taken notice of
“this dissent, trusts her at his peril after ; for the husband is only
“ liable upon account of his own assent to the contracts of his wife,
“ of which assent cohabitation causes a presumption ; and when he
“has declared the contrary, there is no longer room for such a pre-
“sumption. For the wife has no power originally to charge her hus-
“band, but is absolutely under his power and government ; and must
“be content with what he provides, and if he does not provide neces-
“saries, her remedy is in the spiritual court. But here were sufficient
“necessaries provided, and also the husband had forbidden any trust-
“ing her, and notice to the defendant’s servant usually employed by
“him in his trade, was a good notice to his master the plaintiff; and
“he cannot charge the defendant.” Therefore he was nonsuited.
The learned judge said also “If a wife takes up silks and pawns them,
“before they are made into clothes, the husband shall not be liable
“ for the silks, because they never came to his use : contra, if they
“were made into clothes, and wore by the wife, and then pawned by
“ her.”
[In Holt v. Brien, 4 Maule & Selw. 252., where a husband not sep-
arated from his wife, makes an allowance to her for the supply of her.
self and family with necessaries during his temporary absence, and
a tradesman with notice of this, supplies her with goods, the husband
is not liable for the debt.
Best, J. “The ground upon which a husband is liable for debts cons
tracted by his wife is because she is supposed, in contracting them, to
act as his servant or agent. But here the allowance made to her,
the notice of it given to the plaintiff, and his conduct thereupon, clear-
ly shew, that, as to him, her agency, in this respect, was counterman-
ded.”
But the duties of the wife, while cohabiting with her husband, form
the consideration of his liability for her necessaries. He is bound to
provide for, in his family, and while he is guilty of no cruelty and is
willing to provide for all necessaries there, he is not bound to furnish
them elsewhere. All persons, supplying the necessities of a married
woman, separate from her husband, are bound to make enquiries as
to the cause and circumstances of the separation, as they give credit
at their peril. M'Cutchen v. M. Gahay, 11 Johns. Rep. 281. 12
Johns. Rep. 293.]
Wor... I, [23]
# 194
178
Of Contracts with Married Women. [PART II.
K. 3 Esp.
ep, 250.
* 195
But in the case of Rawlyns v. Vandyke,(a) which was an action of
assumpsit for the lodging of the defendant’s wife and children; and
for goods sold and delivered to them.
The plaintiff proved the lodging of the parties at his house, and
the furnishing of linen drapery goods to the wife and children of the
defendant; which appeared to be necessaries for them.
The defence was that the defendant and his wife lived separate;
that he allowed her ten guineas a week; that the plaintiff had notice
of those circumstances, and not to trust her : but the notice not to
trust her, was said by the plaintiff to have taken place after the bill
for the goods had been delivered.
It was further contended, that there was no evidence that the hus-
band had refused to receive her. But it was given in evidence that
Mr. Vandyke, the defendant, had supported a separate establishment
for his wife at Bath, where he had visited her once, and at Osborn’s
Hotel in London ; and paid the bills at both places.
Lord Eldon, Ch. J. said: “The defendant’s counsel relies on his
“discharge from this action, first, on the ground of his living apart
“*from his wife ; and there being no evidence that he refused to re-
“ceive her. My conception of the law is this: that if a man will not
“receive his wife into his house, he turns her out of doors ; and if he
“does so, he sends with her credit for her reasonable expenses. In
“this case, Mr. Pandyke has lived apart from his wife, but he has
“paid her expenses incurred in that situation in other places, and has
“therefore given her credit.
“The second ground taken by Mr. Vandyke's counsel is, that he
“gave her a separate maintenance ; informed the tradesman of that
“fact, and gave him notice not to trust her. Separation with a sepa-
“rate maintenance, was formerly held sufficient to charge the wife,
“but it is not so held now ; the wife is not now liable ; but it is a
“different thing to hold the wife not to be liable, and the husband to
“beliable. The object of this action is to make the husband liable.
“If the husband gives express notice to a tradesman not to trust his
“Wife, he shall not be charged for goods furnished to his wife; and
“if a tradesman has notice of a separate maintenance given to the
“wife, it is the doctrine of Lord Holt, that that shall be notice of an
“express dissent on the part of the husband, and he shall not be char-
“ged; but where the tradesman’s demand is for necessaries, it is in-
“cumbent on the husband to show that the tradesman knew of the se-
“parate maintenance.
GHAP. II.] Of Contracts with Married Women.
179
“The question therefore will be, did Mr. Vandyke dissent from
“furnishing his wife with the things charged P I am of opinion, that
“for every thing furnished after notice of the separate maintenance,
“that that amounted to a dissent ; and for those, that the defendant
“is not liable.
“With respect to the things furnished to the children, I do not
“lay it down as the law, that where the children live away from the
“father, that he is liable, because the things furnished are necessa-
“ries ; as a father, he has a right to the custody of his children, and
“may obtain possession of their persons by habeas corpus ; but where
“he does not assert that right, and suffers them to remain with their
“mother, I think he thereby constitutes her as his agent, and au-
“thorises her to contract those debts for clothing and other necessa-
“ries; but this I think should be left to the jury.”
Where a married woman elopes from her husband, and afterwards
eontracts a debt, not only the husband is not liable, but the wife can-
not be sued either alone, or jointly with her husband.
*Thus, in the case of Hatchett and another v. Baddeley,(b) which
was an action of assumpsit against the defendant by the name of So-
phia Baddeley, (without any addition) for money due to the plaintiffs
as coachmakers, for work and labour and materials, &c. Defendant
pleaded non assumpsit, and also that she was married to one Robert
Baddeley, her husband, who was then alive. The plaintiffs replied,
protestando as to the marriage, that the defendant, before the cause of
action accrued, eloped from the said Robert Baddeley, and hath ever
since lived separate from him, and that the work was done on her
credit only. The defendant not rejoining in due time, judgment was
signed against her for want of a rejoinder ; but it was afterwards
moved in arrest of judgment that the replication was bad on the fol-
lowing grounds; 1st, Supposing the facts to be true, it does not
therefore follow that she is liable to be sued alone. 2dly. It should not
have been alleged that she eloped, but that she lived in adultery. So,
is Rast. 230. pl. 9. in bar of dower, and Robins. Entr. 260. 3dly,
It should have stated the cause of action to have been for neces.
Saries,
The counsel for the plaintiff showed cause against the motion, and
contended that the replication was good : they said, “Elopement is a
“well known term in the law, and signifies a wife's departing from
“her husband and dwelling with the adulterer.” Terms de Ley. Co.
Lit.82 a. If the wife elopes, the husband is not liable to pay for
what she takes up on credit. Langworthy v. Hockmore, Lord Raym,
444. No not even for necessaries, Stra. 647. 706. S. P. resolved in
:
* 196
(b) 2B1. Rep.
1079. Sed.
vide Coz v.
Kitchen, 1
Bos. & Pull,
338.
180
Of Contracts with married Women. [PART II,
* 157
Manby v. Scott, if they are separated, though not for adultery. And in
Derry v. Dutchess of Mazarine, Salk. 116. whose husband was abroad,
the court contended that they were divorced and refused to relieve
her against a verdict.
In support of the rule, the counsel for the defendant argued thus,
* The very admission of the fact of coverture destroys the action. If a
“feme covert appears as a feme sole, and the plaintiff has judgment
# against her, she and her husband may set it aside by writ of error
“ alleging the coverture, 1 Roll. Abr. 759. Sty. 254. 280. The elope-
“ment mentioned in the books, is merely a cause of losing the wife's
“dower, introduced by the statute of 13 Ed. I. c. 34. and did not exist
** at common law. It is net incumbent on me to maintain *that an
“action lies against the husband for this coachmaker’s bill ; it is
“ enough that it does not lie against the wife alone. It is the creditor’s
* folly to trust her, and (as is said in Stra. 875) he does it at his own
$6 peril.”
De Grey, Ch. J. said, “The word elopement is not a legal term,
“nor has any express meaning in the law. It is not to be found in
* Braeton, Britton, or Fleta ; nor is used in the statute of Westm. 2.
“The Mirror indeed has the word elopa ; but in a different sense :
* and none of the dictionaries or etymologists explain the word, ex-
“cept Blount and Jacob. Lord Coke is the first that I remember to
“ have mentioned it, and he speaks in 2 Inst. 435. of a wife’s eloping
“ and remaining with an adulterer. The modern books never speak
“ of elopement, but in a criminal view. But it is quite indifferent, as
“to forming my opinion on this case, in what sense the word is to be
* taken. The present case is not that of a woman having a separate
“maintenance, and living apart from her husband by his express per-
“mission : but of a wife departing from her husband’s house, or if you
“ please eloping, without his consent, She is in every view, even in
“respect to dower, (unless adultery be proved.) a feme covert; and
* as such can neither sue nor be sued alone. This is the general law.
f The exceptions to this, are,
“1. Local customs, as in the city of London, where a feme covert,
tº being a sole trader, may be sued. But there the husband must be
“joined in the action as the outset, for conformity.
“2. The wife of an exile, one abjuring the realm, or perhaps one
professed, who are looked upon as dead in law.
“3. The same law has been extended to cases, somewhat like the
* former, as the Dutchess of Mazarine’s case, whose husband lived in
* France,
CHAP. II.] Of Contracts with Married Women.
181
“All these are by the acts of the husband; but no act of the wife
“can ever make her liable to be sued alone. If she can be sued, she
“can sue, acquire property, release actions, execute deeds, &c. which
“would overturn first principles. On the whole therefore I am
“ clearly of opinion the defendant is not in a capacity to be sued
“ alone.”
Gould, Justice. “I think this case is not ripe for a general de-
“ termination upon principles, because, in my opinion, the replication
“is ill pleaded. Elopement is a word of too vague and uncertain a
“meaning. If adultery is intended by it, it should not be thus insin-
“uated, “but plainly expressed. 6 Edw. III. 39. Rastal, Bower,
“ Bar. e. It is on this I found my opinion.”
Blackstone, Justice. “It seems to be supposed by the argument,
“ that if the husband is not bound to pay this debt, it follows that the
“ wife may be compelled alone. But this is no legal consequence.
“I think in the present case, that it cannot be recovered of either.
“And I see no hardship in a man’s losing his money, that avows up-
“on the record, that he furnished a coach to the wife of a player,
“whom he knew to have run away from her husband. If this were
“universally known to be law, it would be difficult for such women
“to gain credit; and this would consequently reduce the number of
“wanderers. But, be this as it may, I am clearly of opinion, that in
“no case can any feme covert be sued alone, except in the known ex-
“cepted cases of abjuration, exile, and the like; where the husband
“ is considered as dead, and the woman as a widow, or else as divorc-
“ed a vinculo, Co. Lit. 133. And therefore Elizabeth Wilmot,
“whose husband was abroad when she attempted to sue alone, Moor.
“851. did it with the addition of widow. The contrary doctrine mil-
“itates against the first principles of the English law, which considers
“ the woman’s powers, nay almost her very being, as suspended dur-
“ing the coverture. Her contract is merely void so as to bind her-
“self, say all the judges in Manby and Scott. 1 Sid. 120. She and
“ her husband may plead non est factum to her bond, Salk, 7.6 Mod.
* 311. 2 P. Wms. 144. If judgment be had against her, or she be
“ outlawed, her husband and she may reverse it by writ of error, Bro.
“Abr. Error. The very forms of the action demonstrate the same
“thing. If sued alone she can have no addition (as in the case at bar)
“ which is in the teeth of the statute of 1 Hen. V. c. 5. If sued by her
“ maiden name it is misnomer, 6 Mod. 311. If by her husband’s
“ name and as widow, it is the like, She cannot put in bail without
“ her husband, Cro. Jac. 445. And as the previous steps are thus
“ embarrassed, so after judgment the remedy must prove defective,
“No elegit can go against her lands else this would be a mode of al-
“ienation by a feme covert without a fine. It would be endless to
... pursue this idea through all its legal absurdities. And therefore I
am clearly of opinion for arresting the judgment,”,
% 198
182:
Of Contracts with Married Women. [PART II.
1 Taunt.217.
* 199
(e) 1 Ld.
Ray. 444. 12
Mod. 244. S.
G
(8 Johns. 72.
2. ed. 57.)
(d) 2 New
Hep. C. B.
148.
(12 Johns.
Rep. 248.)
Nares, Justice, concurred in opinion, that no action would lie
against a feme covert without her husband. Therefore the judgment
was arrested per totam Curiam. -
*So, if husband and wife be separated by mutual consent, and the
husband secures to her a separate allowance by deed; and this is gen-
erally known in the place where the husband resides, he is not liable
for necessaries furnished his wife in a strange place where the cir-
cumstances of the separation are wholly unknown. -
Thus, in the case of Todd v. Stokes,(c) which was an action brought
by the plaintiff, being an apothecary, for medicines found for the de-
fendant’s wife. It was proved, that the defendant and his wife had
been separated by consent for five years; and that upon the separ-
ation the defendant signed articles to certain trustees, by which
he obliged himself to allow his wife twenty pounds a year; which
he had done accordingly ever after; that the plaintiff, when he
furnished the defendant’s wife with these medicines, did not know
that she was a married woman, &c. And it was ruléd by Holt,
Ch.J. that the defendant was not bound to pay the plaintiff's bill.
For though the plaintiff had not personal notice of their separation,
and though it was not the general reputation in London, where the
plaintiff lived, that the defendant and his wife were separated, yet
since it was the general reputation in the place where the defendant
lived find that for five years past, it was enough to exempt the defend-
ant’s wife from being capable to charge the defendant, though for ne-
cessaries. But if the wife had come immediately from her husband after
the separation, before it could have been publicly and generally known,
and had taken up necessaries upon credit, the husband would have
been liable.
[So, in the case of Holt v. Brien, 4 Barn. & Ald. 252, where a hus-
band, not separated from his wife, makes an allowance to her for the
supply of herself and family with necessaries during his temporary
absence, and a tradesman, with notice of this, supplies her withgoods,
the husband is not liable for the debt.]
But if the husband in such case fails to pay the stipulated allow-
ance, he is liable for necessaries furnished his wife.
Thus, in the case of Nurse v. Craig,(d) which was an action of inde-
bitatus assumpsit for meat, drink, washing, lodging, and other necessa-
ries, with ceunts for money lent and advanced, paid, laid out and ex-
pended, had and received, and on an account stated.
At the trial, before Sir James Mansfield, Ch. J. it appeared in evi-
dence, that the defendant and his wife, having agreed to separate
CHAP. II.] Of Contracts with Married Women,
from each other in the year 1802, a deed of separation was executed
in the year 1803, between the defendant, who was a taylor in low
circumstances, of the first part, his wife of the second part, *and the
plaintiff who was sister to the defendant’s wife, of the third part, by
which the defendant covenanted with the plaintiff, and agreed with his
wife that he would permit his wife, to live apart from him, as a sin-
gle woman, and would suffer her to enjoy all the effects then in her
possession, or which she might thereafter acquire, notwithstanding
her coverture ; and assigned the same to the plaintiff, as her trustee,
and made the plaintiff his attorney to sue for the same in trust for
his wife, and further covenanted with the plaintiff, that he would pay
unto his wife, or to such person as she should appoint, for and towards
her maintenance, an annuity of 131. at the rate of 5s. per week, du-
ring her life for all such time as she should live separate and apart
from him, which she agreed to accept, in full satisfaction, for her sup-
port, maintenance, and alimony: provided, that if the defendant
should pay any debt which his wife, during such separation and pay-
ment of the annuity, should contract, it should be lawful for him to
withhold payment of the said weekly sum of 58. until he should be
reimbursed : that the defendant’s wife upon this separation taking
place, went to live with the plaintiff, her sister, and was furnished
by her with the necessaries for which this action was brought; and
that the defendant, having for some time failed in payment of the
weekly allowance stipulated by the deed, this action was commenced
to recover from him the amount of what had been furnished to his
wife. In the course of the trial the deed of separation having been
produced, the learned judge declared his opinion, that the plaintiff
could not maintain the present action, framed as it was, and accor-
dingly nonsuited the plaintiff.
But a rule nisi was obtained for setting aside this nonsuit: and af-
ter argument the court made the rule absolute. The learned judges,
however, not being agreed, delivered their opinions seriatim, as fol-
low :
Chambre, J. “In general where a separation of husband and wife
“takes place by consent, the obligation to maintain the wife lies upon
“ the husband, unless she forfeits her right to that maintenance by
“her own misconduct. A provision for a separate maintenance is of
“modern introduction. Lord Mansfield, in the case of Corbet v. Po-
“elnitz, 1 Term Rep. 5. states the origin of this practice; he says in
“the ancient law there was no idea of a separate maintenance; but
“when it was established, what said the courts P That the husband
“shall not be liable even for necessaries; and they said so, because
“convenience and justice require it. And flehurst, *J. says that it
*would be unreasonable to permit the wife to affect the property of
# 206
# 261
184
Of Contracts with Married Women. [PART II.
$ 202
“her husband, except where he will not allow her necessaries; for
“ which her contracts are the contracts of her husband. Now if rea-
“son, justice, or humanity ought to govern in the present case, I think
“it my duty to consent to the allowance of this action, since all the
“reasons upon which exceptions to this kind of action have been
-“founded, totally fail in the present instance. I will state the cases.
“In Todd v. Stokes, 1 Salk. 116. Holt, Ch. J. says, if baron and feme
“separate by consent, and she has a separate allowance, it is unrea-
“sonable she should still have it in her power to charge him. The
“case states that the wife had a separate allowance of 20l. per annum,
“ and it may be presumed that the allowance was regularly paid ;
“but this fact does not rest upon presumption; for, according to the
“report in Lord Raym.444. it was averred in the plea that the allow-
“ance was paid according to the articles. In Cragg v. Bowman, 6
“ Mod. 147, where an action was brought for lodgings supplied to the
“wife of the defendant, who had parted from him by consent with a
“separate maintenance, and had lived in adultery, but without the
“plaintiff’s knowledge, the plaintiff was nonsuited ; but it is ex-
“pressly stated to have been proved, that the maintenance was duly
“paid to her, which confirms the idea that an actual payment of a
“maintenance is necessary to discharge the husband. The declara-
“tion in Corbet v. Poelnitz also states the payment of the separate
“maintenance. In this case the object was to show that the wife her-
“self was liable according to the doctrine which then prevailed, for
“which purpose it was necessary to show that the husband was not
“liable. And in Ringstead v. Lady Lanesborough, 1 Term Rep. 6.
“ the defendant having pleaded coverture, the plaintiff, in his repli.
“cation, stated not only that she had a separate allowance, secured by
“deed, but that it was duly paid. So in Barwell v. Brooks, Cooke's
“Bank. Laws, 29, the replication stated that the separate maintenance
“was regularly paid. And in the last instance of an action brought
“against the wife, viz. in Marshall v. Rutton, where it was determined
“that the wife was not liable, the replication in like manner stated
“ that the separate maintenance had been duly paid. So that, in all
“these instances it appears to have been thought necessary to lay a
“foundation for the exemption of the husband, by showing that the
“maintenance had been duly paid as well as secured. Thus it stands
“on the authorities. In point of reason I cannot see the least sha-
“dow of doubt. The case may be considered as in some measure
“analogous to an *accord and satisfaction, where the accord avails
“nothing unless satisfaction be made. Of what use is the covenant
“for an allowance, if the maintenance be not paid P. It does not
“give a credit to the wife ; for no action can be brought against her.
“It is to supply her with ready money; for if she have a provision
“ which is duly paid, she will have the means in her hands of ac-
“quiring all the necessaries of life suitable to her degree. If trades-
CHAP. II.] Of Contracts with Married Women.
185
“men give her credit, it is their own fault; they can neither sue her
“ nor the trustee; and if the mere covenant exempt the husband, a
“person who has provided clothes or meat for the wife may be com-
“pelled to seek his redress in the court of equity, and in the mean
“ time the wife must starve. TIt is unreasonable in the highest de-
“gree to consider that as a ground of exemption which the law it-
“self would impose. In the present case the inconveniences of the
“ doctrine contended for are illustrated in the strongest manner, on
“ account of the smallness of the provision ; the allowance is 5s. per
“ week. Is this woman to be taken into a court of equity, and to
“wait the usual period for decisions of this sort P. How is she to sub-
“sist in the mean time? The inconveniences indeed might be in
“some degree the same, though the amount of the provision were
“greater. No property is conveyed to the trustee; it is a mere per-
“sonal contract; and if the allowance were a thousand pounds per
“ annum, and the husband chose to withhold it, no tradesman could
“ venture to trust the wife, since he could have no reliance on any
“ thing but honour for being reimbursed, after a dilatory course of pro-
“ ceeding in equity. I think, therefore, that the ground on which the
“exemption was supposed to be founded, totally fails; and that there
“is neither reason nor justice to support it. I am therefore of opin-
“ion, that the nonsuit ought to be set aside. Whether this will ulti-
“ mately avail the plaintiff in this action, I will not undertake to say.
* There may, perhaps, be other grounds of defence: but as the non-
“suit rested on the ground that has been stated, and that merely, I
“think that it ought to be set aside.”
Rooke J. “I have entertained great doubts on this subject; but
“ my present opinion is in favour of the action. The plaintiff being
“ a trustee in the deed of separation, had another remedy ; she might
“ have brought an action on the deed. At first I was at a loss how
“ to imply the assent of the husband to the contract of the wife so as
“ to support the action of assumpsit against him ; and I thought that
“ it would be hard that the husband should be liable to two actions.
“But I have got over these difficulties. First, this action is brought
“ for the immediate supply to a woman supposed “to be in actual
“ necessity ; and though the plaintiff be the trustee in the deed, and
“ was therefore entitled to another remedy, yet as the money was to
“ have been paid to her in the first instance, I think that she was war-
“ranted in supplying the wife with necessaries, and taking her choice
“ of actions for her own indemnity. As to the assent of the husband,
“I think that the law will raise an assumpsit, so as to make him li-º
“ able ; and though by these means he becomes subject to two ac-
“tions, his liability has been occasioned by his own default. If he
“ had paid the annuity regularly, this question never could have a-
risen ; for the trustee and the husband had agreed what should be
“the quantum of necessaries. It appears to me that the defendant has
Wol. I. º [24]
ſº
&
# 203
186
Of Contracts with Married Women. [PART II.
# 204
“ given sentence against himself by the articles of separation ; for it
“ is only provided that he shall be indemnified against debts which
“his wife may contract during the separation, and payment of the
“annuity; so that he does not stipulate for an indemnity, except
“during such time as the annuity shall be duly paid. On the best
“consideration which I have been able te give the case, I think the
“nonsuit ought to be set aside.”
Heath, J. “The question is, whether a separate maintenance, se-
“cured by deed to the wife, be sufficient to discharge the husband
“from his liability to provide necessaries for her, where that main-
“tenance has not been duly paid . Five or six cases have been men-
“tioned by my Brother Chambre, in which a separate maintenance
“has been pleaded, and payment averred : and I cannot help think-
sº ing that Lord Ch. J. Holt, in the case of Todd v. Stokes, laid a stress
“upon that circumstance ; for why should he suppose that trades-
“men would trust a wife upon her own credit, unless the circum-
“stance of payment operated upon his judgment. The allowance
“without payment, in this view of the case, would be totally imma-
“terial. In Bacon’s Abridgement, title Baron and Feme, H. it is
“laid down that if a husband allow his wife a separate maintenance, he
“shall not be liable during the time he pays such maintenance. These
“ cases, therefore, in which the payment of maintenance has been set
“forth in the pleadings, and the passage to which I have referred in
“Bacon’s Jībridgement, strongly shew the sense of the profession from
“the time of Lord Ch. J. Holt to the present hour. As to principle,
“it is the duty of the husband to provide necessaries for his wife.
“The question is, whether he discharges that duty merely by en-
“tering into a covenant with a trustee for payment of an allowance 2
“If he refuse to perform that covenant, the wife may be starved
“before redress can be obtained. The common law does not relieve
“any man from an obligation on the mere “ground of an agreement
“to do something else in its place, unless that agreement be perfor-
“med. Accord without satisfaction is no plea. In this case the
“wife is no contracting party to the covenant; she only assents by
“her signature, and if she had not executed the deed, she would
“have been equally bound by accepting the maintenance. The case .
“is not varied by the circumstance of the plaintiff being the trustee
“in the deed. The agreement could have no operation in destroy-
“ing the husband’s liability by transferring the credit to the wife,
“unless accompanied by payment : she cannot be in a worse condi-
“tion than if she cohabited with her husband. Now in the case of
“cohabitation, the husband would be liable for necessaries, unless he
“supply his wife with money to furnish herself; for his assent to her
“contracts must either be express or implied. In the case of Mor-
“ton v. Withens, Skin. 348, the defendant and his wife lived in the
*
CHAP. II.] Of Contracts with Married Women.
18%
“same house, and the wife had a separate allowance of 50l. per an-
“num for her clothes. The action was brought for goods furnished
“to the wife; and Treby, Ch. J. said, ‘ that if the goods were furnish-
“‘ed upon the credit of the husband, the plaintiff was entitled to re-
“‘cover, if the goods were suitable to the quality of the wife, he not
“‘having had notice of the allowance; but if he knew of the differ-
“‘ences between the husband and wife, and sold the goods only to
“‘ruin the husband, the latter should not be chargeable;' but it hav-
“ing been proved that the goods were used by the wife in the pres-
“ence of the husband, the jury found a verdict for the plaintiff. This
“was a case where the husband and wife lived in the same house,
“ and the latter had been supplied with money, yet the assent of the
“husband was implied from his having seen his wife make use of the
“goods. In the present case, where the husband and wife are sepa-
“rated, and no money has been given to supply the wife with neces-
“saries, the consent of the husband may be much more strongly impli-
“ed. In the case of Manby v. Scott, which is best reported in 1 Sid.
* 109, it was said that a general prohibition to all persons to supply
“ the wife with necessaries is void. But if such a covenant as this,
“without payment, be sufficient to exempt the husband from his lia-
“bility, it would have the same effect as a general prohibition. At com-
“mon law the wife may have recourse to any friend for necessaries,
“if the husband refuse her, and the husband is bound to pay for
“ them ; for when the law imposes a duty, it raises a promise on the
“ part of the person upon whom it is imposed, to discharge it. All
“deeds of separation suppose the husband’s liability, for they all con-
“tain a covenant to indemnify him against the wife’s debts. To sup-
“pose that a woman who is parted from *her husband, under an
“agreement for a separate maintenance is not by law entitled to
“charge her husband, with payment for necessaries, when he with-
“holds the stipulated allowance, shocks my humanity and revolts my
“reason.” - w
Sir James Mansfield, Ch. J. “I differ from my three brothers in
“ this case; but I have this satisfaction, that if my opinion be wrong,
“it will be of no consequence, since the opinion of my brothers must
“prevail, and justice will be done. After giving to the subject the
“best consideration in my power, I cannot but entertain the same
“ opinion now which I held at the trial. In the first place I think
“ that a general provision for the separate maintenance of the wife,
“whether the husband pays or not, deprives the wife of the advantage
“of the common law, and prevents the husband from being sued, either
“ in assumpsit, or debt, for necessaries furnished for the wife, And I al-
“so think in this case. that if the general law were not so this action
“could not be maintained; because the person who supplied the nec-
“essaries was the very person with whom the covenant was made,
“and must therefore be presumed to have trusted the wife, on the
# 905
185
Of Contracts with Married momen. [PART II.
“credit of the deed. Not that I think this makes any difference in
“ point of law, but with respect to the remedy there is this difference,
“ that the plaintiff has a short remedy by action on the covenant;
“whereas, in other cases, the person furnishing the necessaries would
“ have no remedy, but must trust to the honour of the wife. Every
“man who gives credit to a married woman living apart from her
“ husband, gives credit to her representations; unless he happens to
“ be personally acquainted with the articles of separation. An objec-
“tion has been raised to the legality of the covenant in this deed;
“but such covenants have been so long supported, both at law and in
“equity, that it is impossible new to give weight to the argument.
“The covenant contained in this deed, therefore, must be considered
“as valid. Here the husband and wife separate, and the husband
“covenants with the present plaintiff to pay five shillings per week
“ by way of maintenance, to his wife, and the mode of payment is
“ either to the wife herself, or to such person as she shall appoint.
“Upon failure of payment, there is no doubt that the plaintiff may
“maintain an action on the covenant. This mode of covenanting to
“pay so much money is not uncommon ; sometimes the provision is
“made by settling an estate with power of entry; sometimes by set-
“ting apart money in the funds : but there is no difference with re-
“spect to the husband between one mode and the other; one may be
“a better security than the other, but in each case the husband is to
“pay the money, and *he parts with some portion of his property
“for a separate maintenance for his wife. In all these cases the
* person who gives credit to the wife is without remedy: the wife
“herself is without remedy. If an ejectment be brought for lands,
“the demise must be by the trustee ; money in the funds must be
“sold by the trustee ; an action of covenant must be brought by the
“trustee. The only way, therefore, by which the wife can compel
“payment, must be by proceeding in equity, and though it may seem
“ridiculous to send her to a court of equity to compel payment of so
“small a sum as 5s. per week, yet the rule must be the same whether
“ the sum be great or small. It seems to me that when agree-
“ments of this sort are entered into, the husband is bound to pay
* the sum for which he covenants, and no more ; to that extent he
“must pay, though it should amount to three times as much as his
“wife’s maintenance. The effect is to make the separate provision
“ the separate property of the wife. She may mortgage it. If she
“save any thing and die, she may dispose of it by will, without con-
“sent of her husband. This has been long since determined in equi-
* ty. By these means she has, in a certain manner, established by
“deed a separate fortune in herself. She lives by herself. If then
“ persons under these circumstances trust her with such a provision in
“her hands, can they in general be considered as trusting her on that
* rule of law, that a husband, in consequence of his obligation to pro-
CHAP. II.] Of Contracts with Married Women.
189.
“vide for his wife, is presumed to assent to the supply of necessaries P
“When he has made a distinct provision, his assent to any other
“mode of provision I cannot presume, much less can I find a ground
“in any decided case, for supporting a different mode of provision
“ than that which is contained in the deed. Where I see a covenant
“ to pay a specific sum, I cannot find a ground in law for supporting
“an assumpsit on the presumed assent of the husband. I forbear to
“cite cases, because many are to be found in every equity report
“ which show that this is the separate fortune of the wife, and that
“she may dispose of it as she pleases. A difficulty has occurred to
“me with respect to the question of payment, which I have not been
“able to get rid of. It is supposed that, notwithstanding the provis-
“ion is a separate maintenance and fortune to the wife, yet, unless
“ the husband pays, the common law right arises. I have endeavour-
“ed to satisfy myself how long payment must be delayed before the
“ common law right arises; sometimes payment is to be made half
“yearly; where it is to be made out of estates, it is according to the
“reservation of rents. These are sometimes quarterly, some-
“ times half-yearly. How long must it be after the end of the quar-
“ter, or half-year, before the common law right “arises: is it to be
“a week, a fortnight, or a day P The wife must have meat and
“ clothes from day to day. If it arises upon non-payment, and
“payment should be delayed for a month, those who give credit
“ to the wife in the mean time must trust her on the common law
“right, and if an action were brought for necessaries, the jury
“might think that three times as much ought to be allowed as the sum
“agreed upon. Suppose part only to be paid, to what extent is the
“husband liable to be charged It may be said that these difficul-
“ ties are occasioned by the husband breaking his covenant. But
“there is another difficulty, if the common law right arises upon
“non-payment. Does the covenant ever revive again, or is it en-
“tirely gone? I should think that it is entirely gone. . If the hus-
“band once become subject to pay for necessaries, in consequence
“ of not paying the stipulated maintenance, when is the covenant to
“revive again by payment of the stipulated sum ? These certainly
“are difficulties, but without these I should be of opinion, on the ge-
“neral ground, that where a provision is secured to the wife as her
“separate property, and she lives as a feme sole; the persons trust
“her upon her own credit. The protection given to the husband
“against the debts of the wife, is merely a power to retain so much
“ as he shall be obliged to pay; but this is no security, for a jury may
“think that five times as much ought to be recovered for necessaries
“ as the amount of the sum stipulated. In common cases there is a
“covenant on the part of the trustees, to indemnify the husband
“against all debts of the wife, so long as they shall live separate.
“But if the husband, in such a case as this, be obliged to pay debts of
# 207
190
Óf Contracts with Married Women. [PART II.
# 208
“the wife, that covenant ought to be confined to the time during
“which the husband shall continue to pay the maintenance, and it
“ought to be expressed, that if the husband delayed payment for such
“a time, he should be liable to pay those who trusted his wife for ne-
“cessaries. There ought also to be some proviso to guard against the
“doubt whether the covenant was to be entirely done away, or only
“suspended by non-payment. As this action is brought by the trus-
“tee, no difficulty can arise respecting any other action. But sup-
* pose some other person had supplied the necessaries and brought
“the action; according to the doctrine, that payment of maintenance
“is necessary to exempt the husband, the plaintiff must have reco-
“vered for necessaries. Then if the trustee had brought an action
“on the covenant for non-payment of maintenance, could the first ac-
“tion be pleaded in bar If not the husband would be liable to two
“actions, though the object of the deed was to make him liable only
“to one, and to relieve him from all other obligations. Where a wo-
“man is put into a “situation with respect to certain property as a
“feme sole, no credit is given to the husband, but those who supply.
“ the wife trust only to the separate fortune which they know that
“she has. Nor can any assent of the husband, as it appears to me.
“be implied, where he has executed a deed covenanting to pay a cer-
“tain stipulated sum ; for I cannot imagine that he could mean to
“make himself liable to any other payment. In this particular case,
“however, it seems quite impossible to say that the husband has as-
“sented to raise any implied assumpsit to pay the plaintiff upon any
“other contract, but that which is contained in the deed by which he
“covenants to pay her a certain stipulated sum. Suppose the hus-
“band had known that his wife lived with the plaintiff, could it have
“entered into his mind that he was to pay more than the sum men-
“tioned in the deed This would be not only to imply an assumpsit
“without ground, but directly contrary to the fact: it would be im-
“plying an engagement of one sort, when there is another engage-
“ment totally contradictory to and inconsistent with it. It has been
“ supposed that it would be hard upon the wife, if this action could
“ not be supported; that hardship I do not feel. In the first place,
“the plaintiff trusted the wife when she had a remedy in her own
“ hands, and she could have no difficulty in trusting the wife to the
“extent of the money which she was entitled to recover; but it may
“be observed in general, that whoever trusts a married woman, trusts
“to her honour only. If the wife says that the money has not been
“paid, you must depend upon her word for the truth of the assertion;
“you must depend upon her honour for making use of the remedies
“against her trustees to compel the payment. And if the money be
“paid to the wife, the creditor must trust to her honour for paying it
“over to him; for I know of no remedy by which she may be com-
“pelled to do so. A court of equity has never gone the length of
CHAP. II.] of Contracts with Married Women.
“charging the separate estate of a married woman, except on the
“ground of agreement.—Where thé wife has agreed to sell, the court
“will compel the sale. Grigby v. Coa, 1 Wes. 517. Or if she enter
“into a joint bond with her husband, the court will charge the rents
“ and profits of her estate with payment. Hulme v. Tenant, 1 Brown.
“16. All these depend on agreement, but I know of no case
“where, on the mere ground of things being supplied to the wife,
“a court of equity has compelled her to pay those who have trust-
“ed her; and it is quite clear there is no remedy at law. It is not
“ only in this case, therefore, where payment of maintenance has been
“withheld, that credit must be given to the equitable rights of the ,
“wife, and to her honour for enforcing them, and applying the mo-
“ney in payment *of her debts. I admit, that the practice of
“averring the payment of the separate maintenance in pleading,
“shows the apprehension either that the payment was necessary,
“or at least that it made the case stronger. But the language
“of the cases themselves impress on me a different idea of the
“opinions of the judges who decided them. In Todd v. Stokes,
“ though payment had been made, nothing is said upon the subject.
“The language of Lord Holt, is, “if baron and feme separate by
“‘consent, and she has a separate allowance, it is unreasonable she
“‘ should have it still in her power to charge him.” Now what is a
“separate allowance, but an agreement for an allowance P He goes
“on, ‘ and it is not to be presumed but tradesmen that deal with her,
“‘trust her on her own credit, and not on the credit of her husband.”
“Did Lord Holt suppose that if the husband omitted to pay the al-
“lowance for a month that he might be charged 2 If so, the trades-
“man would not trust the wife on her own credit, but on the credit
“of the general law. Neither in Salkeld or Lord Raymond is any
“reliance whatever placed on the circumstance of payment. Ac-
“cording to the report of the same case in 12 Mod. 244. the second
“ resolution was this, ‘that if husband and wife part by consent, and
“‘the husband secure her an allowance, it is in consideration that he
“‘should not be charged any more by her ; and it is unreasonable he
“‘should be charged for victuals or physic, or other necessaries after.”
* What is the meaning of this As soon as the deed is executed, the
* allowance is secured, and I know of no difference between a securi-
“ty by covenant, by conveyance of lands, or by transfer of funds. Is
“it not clear then, that the person who stated that resolution suppos-
“ed that securing the allowance put an end to the common law obli-
“gation ? If payment had been considered as necessary, it is natural
“ that it should have been added. The terms of the resolution require
“that it should only be secured. The case of Angier v. Angier,
“ which is to be found in 2 Eq. Ca. Abr. 150. Gilbert, Eq. Rep. 152.
“ and Prec. in Chan. 499. strongly implies that a neglect to pay a se-
“parate maintenance would never raise a common law obligation
* 209
192
Of Contracts with Married Women. [PART II.
# 210
“against the husband. A bill was brought by the wife’s prochein
“amy against her husband, for a special execution of articles, where-
“by the husband was to allow her 521. per annum, separate mainte-
“nance, and he had a decree for the arrears and growing payment in
“521 per annum; and the Lord Chancellor said, ‘where a husband
“‘ makes a separate provision for his wife, he is not chargeable by
“‘ law for her debts;’ but though that were so, yet to avoid the ex-
“pense he might be put to in defending such ‘suits, his lordship sent
“ it to a master to settle a security to indemnify the husband against
“the wife’s debts. Here the separate maintenance had been with-
“drawn for some time; yet the Lord Chancellor says, where a hus-
“band makes a separate provision for his wife, he is not chargeable
“ by law for her debts. In the common sense of the word, when a
“ man executes any such securities as I have before mentioned, he
“makes a provision for her. It may be observed, that the Chancellor
“ decreed all the arrears and growing payments to be made, but if the
“law were as now contended for, some inquiry ought to have been
“made, whether any debts had been contracted by the wife for which
“ the husband was liable, and a deduction should have been made of
“ the amount : no such deduction, however, was made. These cases,
“therefore, when fairly expounded, seem to shew the payment has
“ never been considered as an essential circumstance. According to
“my own recollection of what has fallen from Lord Mansfield upon
“ this subject, I have the strongest impression of having heard him,
“over and over again, declare, that where a separate maintenance
“was agreed upon, it put the parties in a new situation, and that the
“ husband was relieved from any common law obligation, being sub-
“ject to no other than that which was contained in the deed of sepa-
“ ration. But my brother Chambre's recollection is different from
“mine on this subject, and I defer to his memory as better than my
“ own. There is one circumstance, however, which weighs very
“strongly with me in this case, that no instance is to be found in
“ which such an action has ever been maintained against a husband
“who had agreed to make a separate maintenance; and yet there
“ must be many cases in which payment must have been delayed be-
“yond the stipulated time. I cannot say how long these deeds may
“ have been in use, but they certainly are of earlier date than any of
“the cases in our law books, which have been referred to. In 1 Eq.
“Ca. Abr. a case is referred to in Tothell’s transactions in the High
“Court of Chancery, page 97. to show that a woman who has a sepa-
“rate maintenance may dispose of what she saves out of it by will.
“That was about the year 1720. The date of the case in Salkeld, is
“the 8 W. III. And in modern times these deeds have been very
“frequent, yet no instance is suggested of an action like this having
“been maintained. These contracts for separate maintenance would
“be of very little use if the husband’s exemption depended on pay-
CHAP. II.] Of Contracts with Married Women, 193
“ment; for if a husband puts his wife into a lodging, and pays her a
“reasonable sum for maintenance, that will be an answer to an ac-
“tion at common law. It seems to me, therefore, in general, “that § 3 ; 1
“where a man has entered into a contract; and secured a separate
“maintenance to his wife, the common law obligation is at an end,
“ and the persons who trust the wife, trust her on her own credit.
“But if that be not so under the general law, still I think that where
“a person trusts her, having a deed in his own hands, empowering
“him to compel payment of a stipulated sum, the court cannot raise
“an assumpsit by implication in his favour against the husband. I
“ differ from my brothers, but the judgment of the court is that the
“rule be made absolute.”
Where the wife elopes from her husband, and lives in a state of
adultery, he is not liable for necessaries, though she be even desir-
ous of returning, and offers to live with her husband.
Thus in the case of Morris v. Martin,(e) which was an action for (e) i Stra,
meat, &c. provided for the defendant’s wife. The defendant proved $47. See alsº
tº º º 2 Stra. '706.
that she went away from him with an adulterer: Sir Robert Ray-1. Mºd. 37%,
mond, Ch. J. held that the husband should not be charged for neces- S. P.
saries provided for her, though the plaintiff had no notice.
So, in the case of Child and others v. Hardyman,(f) which was (/) a stra.
an action for linen sold to the defendant’s wife. Upon non assump-874, 5,
sit, the delivery was proved. On behalf of the defendant it was pro-
ved, that she had lived in a very lewd manner; that one Nott fre-
quently came to her, at her husband’s house; that they were locked
up together in a bed-chamber; and that other indecencies passed be-
tween them. It was also proved, that she several times went to the
house of this Wott, a gentleman in Wiltshire, who lived within three
miles of the defendant’s house. It did not appear farther than that
the husband disliked her going and staying at Mr. Nott's. But under
these circumstances they continued to live together. Afterwards, on
the 18th of October, 1726, she went away from him, and went to Marl-
borough, where she resided for some time. But after leaving her hus-
band’s house it did not appear that she ever saw Mr. Nott, or lived in
a lewd manner. After some time she sent Lucas, an attorney, to her
husband, to desire that he would receive her again; the husband told
him, that if she came again she should never sit at the upper end of
his table, nor have the government of the children, but should live in
a garret. Then Lucas proposed to him, to make her an allowance, -º-
and proposed “about 80l. or 100l. per annum, he being worth about # 21%
5 or 600l. per annum. But that was not complied with ; and after-
wards she came to London, and bought the linen to the amount of 53l.
Wol., I, [25]
{} ~~
194
Óf Contracts with Married Women. [PART II.
(g) 6 Term
Rep. 603.
# 213
Chief Justice Raymond, was of opinion that the plaintiff should be
called. And accordingly he was nonsuited. He held, “if a woman
“elopes from her husband, though she does not go away with an adul-
“terer, or in an adulterous manner, the tradesman trusts her at his
“ peril and the husband is not bound. And this had been so adjudg-
“ed in two or three cases. Indeed if he refuse to receive her again,
“ from that time it may be an answer to the elopement. In this case
“he does not absolutely refuse to receive her again: but that she
“should neither sit at his table, nor have any government of the
“children, but should be kept in a garret; and she deserved no better
“usage.”
So, in the case of Govier v. Hancock,(g) which was an action of as-
sumpsit brought by the plaintiff for the board and lodging of the de-
fendant’s wife. The defendant, having committed adultery with a
woman of the name of Bazely whom he had brought home, treated his
wife with great cruelty, and finally turned her out of doors. Then the
wife committed adultery, after which she offered to return home, but
her husband would not receive her; and this action was brought for
her board and lodging subsequent to that time. Buller, Just before
whom the cause was tried, was of opinion that the husband was not
bound to receive the wife after she had committed adultery, and con-
sequently was not bound to support her; and he directed a verdict
for the defendant, with liberty for the plaintiff to move to enter a ver-
dict for him, if the Court of King’s Bench should be of opinion that
the defendant was liable under these circumstances. Accordingly
the plaintiff moved to set aside the verdict, on the ground that as the
defendant had been the aggressor, and had turned his wife out of doors
at a time when there was no imputation on her conduct, he was bound
to provide for her, notwithstanding she afterwards committed adulte-
ry; that in this respect it differed from the case of the wife being the
aggressor, and eloping with an adulterer, in which case the husband
was discharged; that it had never yet been determined that under
these circumstances the husband was not liable, and that upon prin-
ciple he was liable.
*But the court said, “That though this precise case did not appear
“to have been controverted before, it was probably because the point
“had not been doubted ; and that it must be governed by the same
“principle on which it had been determined that the husband is not
“liable in cases where the wife goes away with an adulterer. That
“this was not a modern rule, but was mentioned by Lord Coke, that
“if a wife go away with an adulterer she loses her dower. That the
“ question depended upon this, whether the necessaries were provided
“ before or after the wife had committed adultery; if after, the action
“could not be maintained. And that in this case if the wife had in-
“stituted a suit in the Ecclesiastical Court against the husband for
{}
Ch AP. II.] Of Contracts with Married Women. 195
“restitution of conjugal rights, they would not have assisted her.”
The rule was accordingly discharged.
But, in the case of Norton v. Fazan,(h) which was an action of as- (R) 1 Bos. &
sumpsit for necessaries found for the defendant’s wife and children. # i.
The facts were these: some time previous to the delivery of the Rep. 281. 12
goods, the defendant having discovered that his wife kept up an adul- § |Bep.
terous intercourse with another man, separated himself from her,
leaving her in possession of the house which he had inhabited, toge- :
ther with two children bearing his name. In this house she was liv-
ing in a state of adultery, at the period when the goods in question
were delivered. The defendant had made no regular provision for
his wife. The cause was tried before Eyre, Ch. J. who was of opinion
that if the plaintiff knew or ought to have known that the separation
proceeded from the adultery of the wife, the jury should find for the
defendant; if not, that the plaintiff was entitled to recover. The ju-
ry found a verdict for the plaintiff.
Upon a motion for a new trial, the court were of opinion that the
plaintiff was entitled to recover, And Eyre, Ch. J. said, “If the de-
“fendant in another action brought against him by some other trades-
“man, shall be able to establish the notoriety of his wife’s situation, he
“may defend himself. But as the case stands at present this woman
“appears to have been living in a house in which she was placed by
“ the defendant himself, together with two children bearing the hus-
“band’s name, both of whom were born in wedlock. It is true that
“she had an adulterous intercourse with another man, but that was
“not proved to be known to this tradesman. If the defendant can
“bring it home to any other tradesman who shall be in *the same # 214
“situation as the present plaintiff, that he did know or ought to
“have known the circumstances under which the wife was living, the
“defendant may, perhaps, be able to prevent another verdict passing
“ against him.”
Buller, J. “Every case on the facts is peculiar to itself, and this
“is so different from every other case which has been decided in
“ Westminster Hall, that I consider it as anomalous. The verdict is
“clearly and strictly right. The wife committed adultery for a con-
“siderable time while she was living with her husband ; he voluntari-
“ly yielded his bed to the adulterer, and made no provision for her.
“Then what colour of defence is left P knowing of her criminal con-
“duct and having made no provision for her, he must maintain her as
* before.”
It is observed(i) where the husband and wife are separated a men- º: T
sa et thoro by sentence in the Ecclesiastical Court the law allows her Bi.com.441.
alimony at the discretion of the judge, unless she has eloped and lives #",".
Q. tº g Levgh. 5
with an adulterer; and as the common law gives her a writ to reco- #." Rep.
679,
#
196
Of Contracts with Married Women. [PAar II.
k) Vide
owles v.
Dinely, 2
stra. 1122.
{!) 1 Sid. 118,
But see 3
Lev, Iſi.
(n) 12 Mod.
372, Vin.
Abr; tit. Bay
rom and
Feme, D. b.
pi. 38, Cowp.
£33.
$ 215
(n) 2 Esp.
Rep. 637.
wer this, it would seem that the husband is excused from the obliga-
tion of her contracts. So, where she is sentenced to a temporary
confinement as a punishment for some crime, the husband has been
held not liable to her agreement, even for necessaries, if she is kept
in an improper place by the covin of the gaoler,(k)
But in the case of Manby v. Scott,(l) the judges who argued for the
plaintiff laid it down as clear law, that if a wife be prisoner for felony,
k ead the gaoler provides her with food, that the husband may be
charged for it.
5. Of Contracts made by a Woman living with a Man as his Wife,
If a man and woman live together, and pass in the world as hus.
band and wife, the man shall be liable to all contracts entered into by
the woman in the same manner as he would have been liable if they
had been actually married.(m)
*So, in the case of Watson v. Threlkeld,(n) which was an action of
assumpsit brought to recover the amount of a quantity of linen drap-
ery goods, furnished by the plaintiff to a woman who passed for the
wife of the defendant.
The plaintiff proved the delivery to the woman, at the defendant’s
lodgings ; that he had himself chosen some of the articles for her :
that she used his name, and was called Mrs. Threlkeld in his presence.
The defence relied on was, that this woman was not his wife,
though she lived with him as such, but was a kept woman, and that
that circumstance was known to the plaintiff when the goods were
furnished. It was then pressed by the defendant's counsel, that how-
ever it had been held, that if a man permitted a woman to use his name
and pass for his wife, he thereby subjected himself to the payment of
her debts; it had only gone to those cases where the tradesman had
not known the real situation of the parties, but believed the woman
to be actually married ; that it was meant as a punishment on the
man, who, by permitting a woman to use his name, had thereby given
her a false credit, derived from his situation in life, as passing for his
wife; but in the present case no such deceit was practised, no such
false colours held out ; the plaintiff knew that the defendant was not
married, so that he could, not look to his credit, but to the woman’s
own, and that the plaintiff should therefore be nonsuited.
Lord Kenyon, Ch. J. “It is certain, that if a man has permitted a
“woman to whom he was not married, to use his name, and pass for
tº his wife, and in that character to contract debts, he is liable for her
“ debts; and I am of opinion that he is liable, whether the tradesman
“who furnished the goods knew the circumstances to be so or not.
CHAP. II.] Of Contracts with Married Women. 197
“He gives her a credit for his name and cohabitation, and it is not to
“be supposed that the tradesman could look to the credit of a woman
“of that description, and not to that of the “man by whom she was
“supported: I shall hold the credit to be given to him, and that he is
“ liable.” -
His Lordship added, “What, however, I have said must not be
* taken to be the case of a common strumpet, who may assume the
“name of a person, without his authority, from having casually known
“ him ; it must be where the man permits the woman to assume his
“name, where she lives in his house, and is part ºf his family.”
[Cohabitation and reputation are prima facie proof of marriage;
proof of actual marriage is necessary only in cases of crim. con. and
bigamy. Anthon's W. P. 193. and 195. n. a. 18 Johns. Rep. 346.3
*So, where a woman marries a second husband, living the first, the # 216
second not being privy to it; Parker, Ch. J. said(0) that for what she (o) 1stra. 80.
acquired during the cohabitation, he would esteem her as a servant to
the second husband, and that he was entitled to the benefit of her la-
bour.
7. In what cases Husband and Wife ought to sue and be sued jointly.
- Upon all contracts made with the wife before marriage, the husband
and wife must sue and be sued jointly.(p)
(p) 2 Com.
So, they ought to sue jointly in actions upon promises, which arise .#º
during coverture where the wife may have an action for the same v. v. Jºh.
cause, if she survives her husband. Žnson v.
Flewson, 7
Term Rep.
[But the wife cannot, in any case, be sued upon a mere personal #,
contract made during coverture whether joined with the husband §.”.
or not, unless in the excepted cases of the civil death, banishment or 479.)
transportation of the husband. Edwards v. Davis, 16 Johns. Rep.
281. Johnson v. Parmely, 17 Johns. Rep. 271.]
Thus, if a feme covert has a mill, and one agrees with the husband º
and wife to grind all his corn at the mill, under a penalty in default Burwell, 1
thereof, they ought to join; for the action would survive to her.(?) ...”
See also 2
So, if a man promise to give 100l. to the wife of J. S. they ought to Wi.".
join in action for the recovery thereof.(r) . (r) Per Curi-
- º © am. Bulst.
So, in an action for any thing due to the wife en auter droit, they ai.” S
ought to join: as if they sue for a debt, &c. to the wife as executrix 99.2i;
w - - ge tit. Baron &
or administratrix.(8) - Feme, W. 1.
Salk. 282,
198 Gf Contracts with Married Women. [PART II.
But on a promise to pay a husband money due to his wife as execu-
trix in consideration of his forbearing to sue for it, the husband alone
f) Yard v. ough .ſt
land, 1 Ld. ught to sue.(t)
Raym. 368.
1 Salk, 117.
Carth. 462.
S. C.
8. In what Cases the Husband may sue alone, or join with his Wife;
and when he must sue alone.
... Jae. When the wife is the meritorious cause of action, it has been rul-
27. 205. , 1 ed;(u) that the husband alone may sue, or the husband and wife may
: #,” 1 join, though damages only are recovered: as in an assumpsit upon an
Salk, 114. express promise to the wife, after coverture, to pay her 10l. in consi-
*g. & deration of a cure to be performed by her; the husband and wife may
reme, x. join, or the husband alone may sue. -
(v) Com. So, upon a promise to pay 8l. per annum to the husband and wife
Dig. tit. Ba- e • e
.." Fame, during coverture, they may join ; or the husband alone may sue.(v)
[A bond was given to A. and his wife for their maintenance, during
theirjoint and several lives. It was held that a suit might be brought
on it by the husband and wife jointly. Eac'rs. of Schoonmaker v. Elmen-
dorf, 10 Johns. Rep. 49.
So, husband and wife may sue on a promissory note made to the
wife during coverture. Thilliskirk v. Pluckwell, 2 Maule & Sel. 393.
Dampier, J. “The husband might certainly have sued alone, accor-
ding to Howell v. Maine, 3 Leo. 403, which was a bond to the wife
durant coverture, but he may also join the wife. There must be some
little inaccuracy in the case of Bidgood v. Way (2 Bl. Rep. 1236) in
one part ; because the court say that no promise to a married woman
either express or implied, gives any interest and yet they afterwards
admit upon the cases, that where a promise is so expressly stated, the
husband may assent to give the wife an interest in the contract, and
join her in the action.] -
But when the wife cannot have an action for the same cause, if
she survive her husband, the general rule of law is that the action
(w) Com. must be by the husband alone.(w) -
Dig. tit. Ba- -
** Feme, As, in an indebitatus assumpsit on an implied promise to pay for
work done by the wife during coverture; the law presumes no prom-
ise to have been made to the wife: for she is the servant of her hus-
band; and he is not only at the charge of the materials to carry on
GHAP. II.] . Of Contracts with Married momen. 199
the work, but is also obliged to maintain his wife; and therefore it is
the law considers the promise to have been made to him only.(a) (z) 4 Mod.
º 156. 1 Salk.
* º 114. 3 Salk.
[In M’Neilage v. Holloway, 1 Barn. & Ald. 218, where a bill of ex- 63. Carth.
change was payable to a feme sole, who intermarried before the same ºf ºd.
e * * * * * 199, 200. 1
was due, it was holden that the husband might sue in his own name, H. B. ing.
without joining the wife, although the latter had not indorsed the bill.
No formal indorsement is necessary, for by the act of marriage itself
he is virtually an indorsee.]
$ 2.19
(a) Bac. Abr.
tit. Master &
Servant, K.
(b) F. N. B.
120. G. See
also Doct. &
Stud. Dial.
2. c. 42.
(c) I Show.
95. 3 Salk,
$234. Holt's
Rep. 469.
CHAPTER III.
of contRAGTs with MASTER AND SERVANT,
FROM the relation subsisting between master and ser-
vant, the subject of the present chapter may be considered under the
following heads: -
1. What Contracts made by a Servant shall bind his master.
2. In what cases the Master is entitled to the Earnings of his ºp-
prentice or Servant.
3. Of the Servant's liability upon his implied Undertaking to serve
his Master with Care and Diligence. ,
4. Of the Contract between Master and Servant for wages; and
of the Servant’s Right to a Month's Warning, &c.
5. Of the Master’s liability to provide Medicine, &c. for his Ser-
vant in case of Illness. - -
*1. What Contracts made by a Servant shall bind his Master.
In general a master is liable for acts done by his servant in the ex-
ercise of his official employment. And the reason of this liability is
said(a) to arise from the relation subsisting between master and ser-
vant: for, as in strictness, every one ought to transact his own af-
fairs, and it is by the favour and indulgence of the law that he can de-
legate the power of acting for him to another: it is highly reasonable
that he should answer for such substitute; and that his acts should be
deemed the acts of the principal.
Therefore, where a bailiff or servant hath authority from his master
to buy or sell goods, &c. for him he shall be answerable for the con-
tract made by his bailiff or servant relating to the sale of them.(5)
So, where a servant usually buys for the master upon credit, and
the servant buys some things without the master’s order, yet if the
trader trusted the master he shall be chargeable.(c)
Char. III.] ºf Contracts with Master and Servant. 301
So, in Sir Robert Wayland’s case,(d) where it was proved, that he (d) 3 Salk.
used to give his servant money every Saturday, to defray the charges *:::::: also
of the foregoing week, the servant kept the money ; yet per Holt, Ch. §.
J. “The master is chargeable, for the master at his peril ought to take Esp. Rep. 76.
“care what servant he employs ; and it is more reasonable, that he #. et post,
“should suffer for the cheats of his servant than strangers and trades-
“men.”
So, in the case of Hazard v. Treadwell,(e) where the defendant, (e) 1 Stra.
, who was a considerable dealer in iron, and known to the plaintiff as 506.
such, though they had never dealt together before, sent a waterman
to the plaintiff for iron on trust, and paid for it afterwards. *He
sent the same waterman a second time with ready money, who re-
ceived the goods, but did not pay for them. It was ruled, that the
sending the waterman upon trust the first time and paying for the
goods, was giving him credit so as to charge the defendant upon the
second contract.
* 220
So, in the case of Precious v. Abel,(f) which was an action for (f) 1 Esp,
work done as a farrier in shoeing and physicing the defendant’s horse: Rep. 359:
the defence was, that the defendant, by an agreement with his groom,
allowed him five guineas a year, for which he was to keep the horses
properly shod, and furnish them with proper medicines when neces.
sary. Lord Kenyon, Ch. J. held, that it was no defence to the ac-
tion, unless the plaintiff knew of this agreement, and expressly trus-
ted the groom. That if the servant buys things which come to his
master’s use, the master should take care to see them paid for ; for a
tradesman has nothing to do with any private agreement between the
master and servant.
So, in the case of Gratland v. Freeman,(g) which was an action of Gospºr,
assumpsit for beer sold by the plaintiff, a publican, to the defendant. Rep. 85,
On the trial it appeared, that the defendant had been in the habit of
dealing with the plaintiff upon credit, and had paid him occasionally
when the bill amounted to a certain sum. After paying up all ar-
rears, the defendant told the plaintiff’s servant, who brought the beer,
that he would run up no more bills with the plaintiff, but would pay
for the beer as it came in ; and the defence was, that he had paid the
money to the servant. Lord Eldon, Ch. J. said, “The defendant
“must show that the master had notice of this change in the mode
“ of dealing.” It was then contended by the counsel for the defen-
dant, that this notice having been given to the plaintiff's servant, and
the money having been paid to the servant, the master should bebound
by it. But his lordship said, “He thought not. It was a change in
“the usual mode of dealing suggested by the defendant himself; and
“as he had personal dealings with the master, in a particular mode,
Vol. I. [26] -
302.
Of Contracts with Master and Servant. [PART II.
* 221
(h) Peake's
Cas. N. P.
47. See also
1 Show 95.
6. &
%. 222
(i) 3 Esp.
Rep. 214.
“notice to the servant alone of a change in that mode would not be
“sufficient; the defendant must show that the master himself had
“notice of it, or he could have no defence to the action.” The de-
fendant being unable to establish that fact, the plaintiff recovered the
amount of his demand.
*But where a man gives his servant money to pay for commodities
as he buys them, upon a contract or an understanding between the
tradesman and the master to deal for ready money; if the servant
embezzles the money, the master is not liable.
Thus, in the case of Stubbing v. Heintz,(h) which was an action of
assumpsit for goods sold and delivered. The defendant contracted
with the plaintiff to serve him with all kinds of meat at a certain price
per pound for ready money. The cook was accustomed to order the
meat, and when the bill amounted to a few shillings or a guinea, used
to pay it; in general she paid once a week, on a Monday morning ;
and the defendant always gave the servant the money to pay the
bills. This course of dealing continued for a long time, and several
successive servants paid the money they received from the defendant
as above stated. At length the defendant got another cook, and gave
her money as usual, but she did not pay the bills as the others had
done but suffered them to be in arrear 33l. 3s. 3d. She then ran
away from the defendant’s house, after which the defendant was cal-
led upon, for the first time, to pay this sum of money, and on his re-
fusal the plaintiff brought the present action.—The defendant also
proved that when his family were absent from town in the summer, a
servant who was left to take care of the house, had meat for her own
support from the plaintiff, and paid him for the same, but he never
demanded this sum of money from that servant, or mentioned to her
that it was owing to him from the defendant.
Lord Kenyon, Ch. J. said, “ Nothing could be clearer than that
“ where a man gives his servant money to pay for commodities as he
“buys them, if the servant pockets that money, the master will not
“be liable to pay it over again.—But if the master employs his ser-
“vant to buy things on credit, he will be liable to whatever extent
“the servant shall pledge his credit. Here the contract between the
“ parties was to deal for ready money; and the plaintiff when he let
“the bill run on to such an amount, as the sum now claimed, was giv-
“ing credit to the servant, and not to the defendant. The defendant
“had not entered into a new contract, but still thought that he was
“dealing on the same terms as before.” A verdict was accordingly
found for the defendant.
*So,in the case of Pearce v. Rogers,(i) which was an action brought
by the plaintiff, who was a publican, to recover from the defendant the
CHAP. III.] Of Contracts with Master and Servant.
203
amount of a score for beer, supplied the defendant's family. The de-
fendant dealt with the plaintiff for the porter used in his family, and
was in the habit of paying ready money to the plaintiff for a certain
quantity of porter which was allowed for the family; and, in fact,
though the beer for which the action was brought had been delivered at
the defendant’s house, it had been carried in clandestinely by the
maid servant, for her own use, and that of the defendant’s wife’s
mother; but it did not appear that the plaintiff knew of this circum-
stance.
Lord Eldon, Ch. J. said, “That to allow such a demand would be
“to put it in the power of servants and tradesmen to ruin the master;
“that where the master was in the habit of paying ready money for
“ part of the goods furnished, it was sufficient notice to the trades-
“man that he considered those only as furnished to his family, to put
“ the tradesman on his guard, and to make it incumbent on him to
“ satisfy himself that the goods were really for the use of the master’s
“family; that where the tradesman suffered his goods to be so de-
“livered, and without informing the master, if in point of fact they
“ did not come to his use, he should hold him not to be liable: that in
“ this case, the porter not having been delivered to the defendant’s
“ use, there was, in his opinion, no pretext to charge him.” The plain-
“ tiff was accordingly nonsuited.
So, where a tradesman had had no dealings with the master, but
with the coachman, to whom the master gave money monthly for the
purpose of buying oats and hay for his horses ; and the tradesman
made no application to the master for his demand until a year after
the goods were delivered, Lord Kenyon, Ch. J. ruled, that the master
was not liable.(k) -
But in the case of Rusby v. Scarlett,(l) which was an action brought
to recover the price of a quantity of hay and straw sold by the plain-
tiff, for the use of the defendant’s horses. The plaintiff proved the
delivery of a quantity of hay and straw at the defendant’s stables, and
the delivery of bills of parcels, but there was no evidence of his hav.
ing ever seen the defendant, or of his having ever received any orders
from him, or that he ever received from him directly any payment or
money whatever.
*The defence was, that the defendant had given money to his
coachman to pay the bills, which he had embezzled. It appeared that
the defendant had kept a book with the servant; in which were en-
tered the articles procured by the servant, and the sums advanced
by him; but there did not appear to be any connection between the
(k) Esp. Ni.
Pri. 115. 3d
) 5 Esp.
ep. '76.
%226
Of Contracts with Master and Servant. [PART II.
(m) Brownl.
64.
(n) 4 Esp.
Rep. 174.
* 224
aums advanced to the servant, and the demands which he was to pay?
but the money was advanced generally.
Lord Ellenborough, Ch. J. said, “The general rule to subject the
“principal to the act of the agent is this. The agency must be ante-
“ cedently given, or be subsequently adopted. There must, in the
“latter case, be some act of recognition ; but if I authorise a man
“to obtain credit on my account, and he gets the goods on such credit
“unless I have paid him, I am myself liable : but I go further ; for
“if the goods were taken up, and the money given afterwards to the
“servant to pay, I am inclined to think the master liable, if the
“servant has not paid over the money; for he has given the servant
“authority to take up goods on credit. It is therefore material to
“see when the money was given. If the servant was always in cash
“before-hand, to pay for the goods, the master is not liable, as he nev-
“er authorized him to pledge his credit; but if the servant was not so
“in cash, he gave him a right to take up the goods on credit ; and I
“think he would beliable, as the servant has not paid the plaintiff,
“ though he might have received the money from the defendant, his
“master.” The jury accordingly found a verdict for the plaintiff.
But where a master forbids a tradesman to deliver any goods ex-
cept his servant pays for them, and goods are afterwards delivered to
the servant upon credit; the master shall not be liable if he has paid
the servant the money for them. (m)
So, in the case of Hiscow v. Greenwood,(n) which was an action
of trover ; it appeared, that the plaintiff’s chaise having been damaged
by the negligence of his servant, and without his knowledge, the ser-
vant had, without acquainting his master, taken the chaise to the de-
fendant, who was a coachmaker, to get it repaired ; the defendant
had never been employed by the plaintiff as his coachmaker, or to do
any work for him. Some repairs had been done to it to a very small
amount. The defendant refused to deliver it up till he was paid the
amount of his demand, contending that he had a lien on the chaise,
on account of the work which he “had done to it. But Lord Ellen-
borough, Ch. J. said, “ that the defendant had no right to hold the
“ chaise as a lien. Whatever claim of that sort he might have, he
“must derive it from legitimate authority; that unless the master
“had been in the habit of employing the tradesman in the way of his
“trade, it should not be in the power of the servant to bind him to
* contracts of which he had no knowledge, nor to which he gave his
“assent. It was the duty of the tradesman, when he was employed,
“to have inquired of the principal if the order was given by his au-
“ thority; but having neglected to do so here, and the master having
“never employed him, the master was not liable to the demand; and
“ the detainer of the chaise was unlawful.”
CHAP. III.] Of Contracts with Master and Servant.
205
2. In what Cases the Master is entitled to the Earnings of his Ap-
- prentice, or Servant. -
Whatever an apprentice earns by his labour, whilst he remains in
the actual employ of his master, clearly belongs to the master. So,
where an apprentice leaves his master’s service, and is employed by
a stranger, the master is entitled to his wages or earnings, in respect
of such employment during his apprenticeship.
Thus, in the case of Barber v. Dennis,(o) where it appeared that (0) 6 Mod.
the plaintiff had her apprentice taken from her, and put on board a
Queen’s ship, where he earned two tickets, which came to the de-
fendant’s hands, and for which the plaintiff brought trover. It was
agreed the action would well lie, if the apprentice were a legal ap-
prentice, for his possession would be that of his master, and whatever
he earns shall go to his master. Holt, Ch. J. said, he would under-
stand him an apprentice or servant de facto, and that would suffice
against the defendant being a wrong doer. ~.
69. 1 Salk,
68. S. C.
So, in the case of Eades v. Wandeput,(p) which was an action against (p) Mich. as
the captain of a ship of war by the master of an apprentice, to recover
Geo. III. B.
R. 5 East's
wages for the service of his apprentice, who having been impressed, Rep. 39.m. a.
was detained on board the defendant’s ship. The only witness to
charge the defendant with knowledge was the apprentice boy himself,
who swore, that after he had been impressed and carried on board the
ship, he told the defendant, the *captain, that he was an apprentice,
and required his discharge, which was refused. The Court were of .
opinion that the evidence of the boy was sufficient, and that the cap-
tain ought to have made inquiry into the truth of what the boy said ;
for after that information he detained him at his peril; and it was
admitted that if the indentures has been produced, the defendant
would have been bound to have discharged the boy.
#:
225
So, in the case of Curteis v. Bridges,(q) it was held, that if the §) Comb.
master of one ship takes a servant that belongs to the master of ano-
ther ship, whatever wages he receives from the King upon his ac-
count shall be to the use of his first master, being acquired by the la-
bour and industry of his servant.
And by the stat. 2 & 3 Anne, c. 6. s. 17. after reciting, “ whereas
“owners and masters of merchant ships are at great charge in edu-
“cating and bringing up the parish children, till they come to the age,
“of eighteen years, and other voluntary apprentices three years, at
“which time they are capable to serve in her Majesty’s ships of war;
450.
206 .
of Contracts with Master and Servant. [PARY H.
(r) Co. Lit.
117. a. m. 1.
Bac. Abr.
tit. Master
and Servant,
(6 Johns.
Rep. 274.
Anthon’s N.
P. 118.)
“it is enacted, that when such apprentices shall be impressed, or vol-
“untarily enter themselves into her Majesty’s service, the said own-
“ers or masters of such apprentices, their executors, administrators,
“ or assigns, shall be entitled to able seaman’s wages for such of their
“apprentices as shall, upon due examination, be found qualified for "
“the same, notwithstanding their indentures of apprenticeship.”
And by stat.31 Geo. II. c. 10. s. 16. it is declared, “that that act, or
“any thing therein contained, shall not extend to, or be construed to
“invalidate or make void any indenture whereby any master is
“or shall be entitled to have or receive the wages, pay, or other al-
“lowances of money earned by his apprentice, but the same shall be
“paid by the Treasurer of the Navy, according to such indenture, as
“has been usual in such cases; unless such apprentice shall be above
“the age of eighteen years at the time when such indenture was
“made and executed; or unless such apprentice shall have been hired
“ and rated as a servant to any commission or warrant officer belong-
“ing to any of the ships or vessels of his Majesty, such apprenticeship
“not being then known to such officer ; in which case the wages or
“pay of such servant shall be due and payable to such commissioner,
“or warrant officer, according to the usual practice of the navy, un-
“til such *officer shall be informed of such apprenticeship: and in
“either of the cases herein before mentioned, the master of such ap-
“prentice shall not be entitled to receive any wages, pay, or allow-
“ances, by virtue of any such indenture.”
[So, if a person employs the slave of another, there is an implied
promise in law to pay the master for his services. Cook v. Husted,
12 Johns. Rep. 188.
So, where an apprentice run away from his master, and entered on
board a ship, and entered into articles to forfeit his wages if he de-
serted, or was guilty of embezzlement, and before the end of the
voyage having broken the articles he deserted; it was held, that the
master might recover all his earnings for the time he was on board,
without deduction for any advancement, though neither the captain or
owners had knowledge of his being an apprentice. James v. Le Roy,
6 Johns. Rep. 274.
In case of seduction, the master may waive his action sounding in
tort and bring an action of assumpsit for work and labour done by the
apprentice. 1 Taunt. 112.]
But although the master is clearly entitled to the earnings of his
apprentice, it may be doubted whether the same rule applies to the
case of hired servants. All the cases which occur in the books relate
to apprentices only. It is, however, observed,(r) with regard to hir-
ed servants, that the master’s proper remedy in all cases, except
those in which the servant is intentionally employed on his master's
CHAP. III.] Of Contracts with Master and Servant.
207
account, seems to be an action either against the employer for loss of
service, if he knew of the first retainer, or against the servant him-
self for breach of his contract, such a case rather importing the mas-
ter’s right to damages for the injury sustained by the consequences
of the second retainer, than a right to the profits accruing from the
employment.
smººn-
S. of the Servant’s liability for Breach of his implied Undertaking
to serve his Master with Diligence and Fidelity, &c.
iſ,
Upon every contract of hiring there is an undertaking implied on
the part of the servant, that he will serve his master with care, dili-
gence and fidelity: so that wherever the master sustains an injury
by reason of any negligence or misconduct on the part of his servant,
the former may maintain an action against the latter, either of assump-
sit, or on the case in tort to recover a compensation by way of damages
for breach of his duty.
Thus,(s) if fl. is employed by B. to sail from England to the Indies, %”.
and fl. covenants, that he or his servants will not thence import any Igº.
calicoes, &c. and ºff. retains C. as his servant in this voyage, and ac-
quaints him with the covenants, and notwithstanding C. falsely and
fraudulently brings thence certain calicoes, &c. A. shall have an ac-
tion against C., for though no action lies by a master for the bare breach
of his command, yet if a servant does any thing falsely and fraudu-
lently, to the damage of his master, an action will lie.
*So, if a merchant’s servant takes his master’s goods that are ar-
Lev.
rived at a port in England, and, before payment of the customs, lands # 227
them, per quod the goods are forfeited and seized by the king ; the
master may have an action of trespass upon the case against his ser-
want.(?) 9.º...”
* *a* 2
65,
So, if a servant drives his master’s cart, and by his negligence
suffers the cattle to perish, an action upon the case lies against
him.(u) (w) 7 H. IV.
14. Bro. tit.
If a man deliver a horse to his servant to go to market, or a bag of Action."
money to carry to London, which he neglects to do, the master may
have an action of account or delinue against him : or, he might now
case, 34.
maintain an action of assumpsit for breach of his implied promise.(v) (v) Wide 21.
- H. IV. 14.
But if man delivers money to his servant to carry to such a place,
and he is robbed, the servant shall not answer for it; for a servant on-
Moor, 248.
*208 Of Contracts with Master and Servant. - [PART I}.
ly undertakes for his diligence, and fidelity, and not for the strength
and security of his defence, and therefore shall not be obliged to pre-
º Bac. serve his master’s property at all adventures. (w)
Abr. tit.
Master and
Servant, M. *ºme
4, of the Contract between Master and Servant for Wages; and of
the Servant’s Right to a Month’s Warning, &c. \,
If a person retains a servant, and agrees to pay him so much by
the day, month, or year, the servant may have an action against the
master on the contract, or against his executors; for every such re-
4s. º 1. te e *
tainer will be presumed to be in consideration of wages, unless the
(*) Bac. Abr. contrary appears.(2) -
tit. Master
* * So, if a man be retained in London to serve beyond sea, he may
have an action for his wages in England ; and lay the venue in any
B 1. ty.
§) rownl. county.(y)
Where a person is hired as an assistant, or deputy, to perform the
duties of a particular office, at a certain yearly salary, and the prin-
cipal is afterwards appointed to another situation, and he employs the
same person to transact the business of both offices, the *assistant is
# 288 not entitled to any increase of salary without some agreement or prom-
ise of the principal. * g
gº Thus, in the case of Bell v. Drummond, executor, &c.(z) which
A. was an action of assumpsit for work and labour done and performed
by the plaintiff for Paterson, the defendant’s testator; it appeared
that the testator was clerk to the commissioners of the land-tax, and
that the plaintiff had done the business of his office at a salary of 100l.
a year; that afterwards, on new duties being imposed, the testator
was appointed clerk to the commissioners of those duties, and the
plaintiff also transacted that business, but no agreement had been
made as to any increase of salary, though the labour of the office was
considerably increased. It was proved, that the plaintiff having de-
manded an additional stipend, the testator had desired the witness
(as a friend to both parties) to consider what ought to be allowed the
plaintiff. That accordingly the witness did proceed to make an
estimate ; but before he had finally made up his mind the testator
died.
Lord Kenyon, Ch. J. said, “that had the plaintiff's case rested
“wholly on the fact of the new duty being imposed upon him, he should
“ not think it such a case as would have entitled him to come into
“a court of justice for an additional stipend on a quantum meruit; if
“it was every porter in a shop, or clerk in an office, would upon an in-
CHAP. III.] Of Contracts with Master and Servant.
#03
“crease of his master’s business, be equally entitled to demand añ
“increase of wages. But upon the evidence produced it appeared
“clearly that the testator himself thought that he ought to pay some-
“thing, and the only matter in controversy between him and the plain-
“tiff was the quantum of the additional allowance.” The plaintiff
obtained a verdict,
If a slave comes over from the West Indies, and continues in the
service of his master in England, he is not entitled to wages, unless
there has been some agreement or contract of service for wages.
Thus, in the case of Alfred v. Marquis of Fitzjames,(a) which was an
action of assumpsit for servant's wages. It appeared in evidence, that
the plaintiff came over from Martinique with the dutchess of Fitzjames.
His father and mother had been slaves on an estate belonging to her
in that island. He had entered into her *service in Martinique be-
fore her marriage with the Marquis, and continued to serve her after
her marriage; and the marquis found him with necessaries of every
description. There was no contract for any hiring for wages; but a
witness said, that the Marquis had been heard to promise to pay him
wages.
Lord Kenyon, Ch. J. said, “it was his decided opinion, that up to
“the time of the promise to pay wages, which the witness had said
“the defendant had made, the plaintiff had no title to recover, as
“there was no original contract of service for wages.”
A contract to pay a certain sum per annum, in consideration o
services to be performed, is an entire contract for a year, and without
a full year's service, the servant is not entitled to any part of his
salary.
Thus, in the case of The Countess of Plymouth v. Throgmorton,(5)
which was an action of debt, wherein the plaintiff declared upon a
writing whereby the defendant’s testator had appointed the plaintiff’s
testator to receive his rents, and promised to pay him 100l. per annum
for his service, and shows that the defendant’s testator died three
quarters of a year after, during which time he served him, and de-
mands 75l. for the three quarters; judgment for the plaintiff in C. B.
by nil dicit. But upon error brought in K. B. the judgment was
reversed; it being held, that without a full year’s service nothing
could be due, and that it was in nature of a condition precedent.
[So, where a servant is hired for a year at a certain rate per day, it
is an entire contract, and the servant cannot recover his wages till the
Wol. I. [27]
(a) 3 Esp,
Rep. -
# 22g
(b) 1 Saik,
65. 3 Modº
153. S. C.
See also 6
Term Rep.
320. S. P. 3
Vin. Abr. tit.
Apportion-
ment, fo. 8,
316)
Of Contracts with Master and Servant. [PART II.
(c) Per Law-
tence, Just. 6.
Term Rep.
$ 326.
# 236
(d) 3 Esp.
Tep. 235.
(e) East's
Term Rep.
25 G. III. K.
B. 2 Esp.
Rep. 739.
expiration of the year. But if before the end of the year, a note for
the amount of wages when earned is given, it is no defence to such
note that the payee had left the service before the expiration of the
time for which he had been hired. 13 Johns. Rep. 53.94, 390.]
But with regard to the common case of an hired servant, it is said,(c)
that such a servant, though hired in a general way, is considered to
be hired with reference to the general understanding upon the sub-
ject, that the servant shall be entitled to his wages for the time he
serves, though he do not continue in the service during the whole year.
So, if a master turns away his servant without a previous notice or
warning, (except for misconduct,) the servant is entitled to a month's
wages.
*Thus, in the case of Robinson v. Hendman,(d) which was an ac-
tion of assumpsit brought by the plaintiff to recover the amount of a
month’s wages, on the ground of his having been discharged by the
defendant, without any notice or warning. No agreement was prov-
ed to the effect of the claim ; but general usage only was relied on.
The defendant proved that the plaintiff was negligent in his conduct,
frequently absent when his master wanted him, and often slept out.
Lord Kenyon, Ch. J. said, “ that though in the present case he
“ thought the plaintiff was not entitled to recover, on account of his
“misconduct, he was of opinion, that if a master turned away his ser-
“vant without warning, or previous notice, and there was no fault or
“ misconduct in the servant to warrant it, he ought to have the allow-
“ance claimed, of a month's wages; which he thought reasonable.”
5. Of the Master’s liability to provide Medicine, &c. for his Servant
in Case of Illness.
Different opinions have been held upon this subject; and but three
cases appear in print. In two of them it was determined that a mas-
ter is not bound to provide medical attendance, &c. for his servant,
who meets with an accident in his master’s service. In the other,
which was tried before Lord Kenyon, Ch. J. it was ruled, that a mas-
ter was liable for medicines furnished to his servant whilst in his ser-
vice. The two former cases, it should be observed, were argued and
determined in the courts of Westminster-Hall; the latter was only a
determination at Nisi Prius. I shall, however, present them to the
reader in the order in which they were determined.
The first is Newby v. Wiltshire,(e) which was assumpsit for money
paid, laid out, and expended for the defendant's use. The case for
CHAP. III.] Of Contracts with Master and Servant. 211
the opinion of the court stated, that the defendant, a farmer, sent his
waggon, in May, 1784, to Cambridge ; and in returning, a boy that
had been sent with it fell from the shafts and broke his leg : that the
boy could not be removed out of the parish where the accident hap-
pened, on account of the danger it might occasion : *that the plaintiff # 231
was overseer of the parish where the accident happened, and took
the charge of getting the boy cured upon himself: that it was neces-
sary to cut off the leg; and the overseer expended, in and about the
eure, 321. : that afterwards the boy served the remainder of the year
with his master; and the action was brought to recover from the de-
fendant the expenses of the boy’s cure.
Lord Mansfield, Ch. J. said, “I don’t applaud the humanity of the
“master in this case ; he does not inquire after his servant for six
“ weeks after the accident; and when he does, he passes by on the
“‘ other side.’ I think in general, a master ought to maintain his
“ servants, and take care of them in sickness ; but the question now
“ is, what is the law P. There is, in point of law, no action against the
“ master to compel him to repay the parish for the cure of his ser-
“ vant; no authority whatsoever has been cited ; and it seems to me
“ that it cannot be. The parish is bound to take care of accidents;
“ they do their duty in that respect; therefore I am inclined to think
“ that the plaintiff cannot recover.” The other judges concurred in
this opinion, and the court gave judgment for the defendant.
The second reported case on this subject, is, Scarman v. Castell,(f) (f) Sittings
which was an action to...recover the amount of an apothecary’s bill at westm.
for medicines furnished to, and attendance on a servant of the de- after Hil.
fendant, while living under his roof. The plaintiff, an apothecary, º: ; &
attended the servant in the house of the defendant, who was a man ram Lord
of large fortune, but it was not proved that the plaintiff was express- *%. Ch.
ly employed by the defendant: and therefore it was contended that Rep. 270.
the plaintiff could not recover against the master. But Lord Ken- *...*
Jon, Ch. J. said, “that he was of opinion that a master was obliged 248.
“ to provide for his servant in sickness and in health, and that he, there-
“fore, was liable for medicines furnished to his servant while in his
“service. Not that his servant was at liberty to go abroad and con-
“tract debts for medicines, but that while he was under his master’s
“roof, the master was under a legal, as well as a moral obligation, to
“provide the necessary medicines, and to pay for such as were ad-
“ministered to his servant under such circumstances.” The counsel
for the defendant then cited the case of “Newby v. Wiltshire ; but # 232
it was answered by the plaintiff’s counsel that the case cited was of
a servant in husbandry. Lord Kenyon said, that that case was dis-
tinguishable from the present. He therefore directed the jury to find
a verdict for the plaintiff, which they did to the full amount of the
plaintiff’s bill.
212
of €ontracts with Master and Servant. [PART II.
(g) Mich.
Term 43. &
III. C. B. 3
Bos. & Pull.
247.
(2 East 505.)
# 233
But in the case of Wennall v. Adney,(g) which was also an action
of assumpsit to recover the amount of a surgeon’s bill. The cause
was tried before Le Blanc, J. at Shrewsbury assizes, when it appear-
ed that the action was brought to recover 8l. 18s. 6d., the amount
of a bill for medical attendance upon a servant of the defendant, who
had his arm broken while driving the defendant’s team, and who had
been hired by the defendant, at the yearly wages of 31. 108, and vic-
tuals 3 that the accident happened nearer the house of the servant’s
mother, than that of the defendant, and that he was taken to his mo-
ther’s house ; that the accident happened in one parish, that the house
of the servant’s mother was situated in another, and the defendant’s
in a third ; that the plaintiff who was the surgeon usually employed
by the defendant, accidentally passing near the mother's house, was
called in, and desired to attend her son ; at which time nothing was
said about the defendant paying for his attendance, but the mother
observed that she had always been able to pay her way, and hoped
she should do so still ; that during the time of the servant’s confine-
ment he was supplied with victuals from the defendant’s house; that
the plaintiff first delivered his bill to the defendant but afterwards
called a meeting of the parishioners of the parish in which the mo-
ther’s house was situated, and submitted it to them for payment, who
refused to discharge it. The learned Judge being of opinion that the
defendant, not having employed the plaintiff, or made any promise
of payment, was not liable, nonsuited the plaintiff. The case after-
wards came before the Court of Common Pleas upon a motion to set
aside the nonsuit ; and, after argument, the Judges delivered their
opinions seriatim. .
Lord Alvanley, Ch. J. “I have reason to believe that the opinion
“ delivered by Lord Kenyon, in case of Scarman v. Castell, was not
“a hasty opinion, but formed upon reflection. I have no difficulty,
“however, in saying, that I concur with the learned judge before whom
“this cause was tried, in thinking that the defendant is liable. The
“ sum in dispute is only 8l. 18s. 6d. and if a wish *is entertained by
“ those whom this judgment may affect, to obtain a more solemn de-
“cision upon this point, some opportunity should be taken where a
“greater stake is in litigation. In this kind of question much may
“depend upon the nature of the contract entered into between the .
“master and the servant. Sometimes a master engages to supply
“his servant with necessary victuals, and it may be undoubtedly ar-
“gued, that necessary victuals means such victuals as may suit the
“state of health or infirmity in which the servant happens to be : as
“if a servant be in need of wine, or victuals of that description, which
“ are given by way of medicine. It is sufficient, however, to observe,
“ that previous to the case of Scarman v. Castell, there is no authori-
“ty in the law of England to be found which warrants the position
“contended for on the part of the plaintiff. I have no doubt what-
GHAP. III.] Of Contracts with Master and Servant.
2.13
“ever that parish officers are bound to assist where such accidents
“as these take place ; and that the law will so far raise an impli-
“ed contract against them as to enable any person who affords that
“immediate assistance, which the necessity of the case usually re-
“quires, to recover against them the amount of money expended.”
Heath, J. “I believe that the humanity of Lord Kenyon misled
“him when he adopted the doctrine upon which he decided the case
“ of Scarman v. Castell. Probably at the moment it occurred to him
“that if the master was not bound to provide assistance for his ser-
“vant, the latter would be left wholly destitute ; but I am perfect-
“ly sure it is more for the advantage of servants that the legal claim
“ for such assistance should be against the parish officers rather than
“ against their masters: for the situation of many masters who are
“ obliged to keep servants is not such as to enable them to afford suf.
“ficient assistance in cases of serious illness.”
The other judges delivered their opinions to the same effect; and
the rule for setting aside the nonsuit was discharged,
[Where a pauper had his leg accidentally fractured in one parish,
and was conveyed to the next house in an adjoining parish, and was
confined there and visited by the overseer, and was attended by the
surgeon who attended the parish poor, with the knowledge of the
overseer; held that the surgeon might have assumpsit against the
overseer for the expenses of the cure; for there was not any obliga-
tion against the parish where the accident happened to pay these ex-
penses, and the overseer's knowledge of and not repudiating the sur-
geon’s attendance was equivalent to a request. Lamb v. Bunce, 4
Maule & Selw. 275.
Lord Ellenborough, Ch. J. “This pauper was to be considered as
“casual poor wherever his infirm and indigent body was found, and
“he had a claim on the parish where he was so found to have his ne-
“cessities provided for by them. There is no reason for connecting
“the place where the accident happened with the liability. It cannot
“ be matter of dispute in point of law, and I could wish it were so un-
“derstood, that where time is not offered for procuring an order of
“justices, the law raises an obligation against the parish where the
“pauper lies sick as casual poor, to look to the supply of his neces-
“sities; and if the parish officer stands by and sees that obligation
G& performed by those who are fit and competent to perform it, the
tº law will raise a promise on his part to pay for the performance.”
But a master is not liable for medical assistance rendered to his
slave, when the case is not so urgent as to prevent previous applica-
tion to the master for his direction. Dunbar v. Williams, 10 Johns.
Rep. 249. See 12 Johns. Rep. 352. 15 Johns, Rep. 281. 18 Johns.
Rep. 122.]
(a) Vide
Mal. Lex.
Mer. 81.
TSeawes'
Lex. Mer.45.
(b) Ibid.
* 235
CHAPTER IV.
6F PRINo1 PAL, FACTek, AND AGENT.
A FACTOR, in commerce, is an agent or broker employed
by merchants to buy or sell goods, or negotiate bills, or transact any
kind of business on their account; and for which he is entitled to a
certain commission or allowance.(a) t
The general duty of a factor or agent is to procure the best intelli-
gence of the state of trade at his place of residence ; of the course of
exchange ; of the quantity and quality of goods at market, their
present price, and the probability that it may rise or fall ; to pay ex-
act obedience to the orders of his employers; to consult their advan-
tage in matters referred to his direction ; to execute their business
with all the dispatch that circumstances will admit; to be early in his
intelligence, distinct in his accounts, and punctual in his corres-
pondence.(b)
*It is intended to consider the subject of this chapter in the follow-
ing order:
1. Of the general and limited Power of a Factor or agent; and of Con-
tracts, &c. made by him on Account of his Principal.
2. Of Payment to, or Settlement with a Factor or Agent.
3. In what cases a Factor or agent may sue or be sued upon Contracts
made by him on account of his Principal.
4. Of Sales, &c. on Del. Credere Commission.
5. Of Sales, &c. by fluctioneers.
6. Of Contracts and Agreements by Principal, Factor, and Agentinter
se; and of their respective Rights and Remedies : And,
1. Of a Factor or Agent’s liability on a Promise to indem-
nify his Principal upon a Re-sale of Goods, &c.
GHAP. IV.] Of Principal, Factor, and Agent. - 215
2. Of the Remedy against a Fáctor or Jłgent for not ac-
counting, and for Negligence, &c.
3. Of the Factor or Agent’s Right of Lien on the Goods,
&c. of his Principal.
4. In what Cases a Factor or .4gent is not entitled to re-
cover for Commission, or Money paid, &c.
=ººm-se
*1. Of the general and limited Power of a Factor or Agent; and of % 236
Contracts, &c. made by him on Account of his Principal.
{}
A factor or agent’s power is either general or limited. If he be en- \
trusted with a general power, he must exercise a sound and honest i
judgment in those matters which are left to his discretion: for he
will not be justified in taking unreasonable or unusual measures, or
doing any thing contrary to the interest of his principal. If, howev-
er, his proceedings are challenged, the principal must prove that he
might have done better, and was guilty of wilful mismanagement.
.
j
When a factor or agent’s power is limited, he must strictly adhere
to his orders, which should always be given in writing. If he exceeds
his power, though with a view to his employer’s interest, he will be
liable for the consequences. For example, if he gives credit, when,
none ought to be given, or longer credit than directed, for the sake of;
a better price ; and the buyer becomes insolvent, he shall be answer- s ºft. *
able for the debt.(c) #Mer. 81. and
#Sadock v.
ŠBurton, Yel.
A factor or agent acting under a general power, may sell on cred-202."
it ; particularly if the goods consigned be generally sold on credit at d) 2 Ch.
the place of consignation ; unless, indeed, he be expressly restricted Cás. 57. Mal.
by the terms of his commission not to give credit.(d) He should, how- Lex. Mer.
g tº tº * 83. Willes?
ever, be careful to inquire into the solvency and circumstances of Rep. 403.3
to be trusted. Bos. & Pull.
the person 489. But see
- 1 Bulst. 104.
Although opinion will never justify the factor for acting contrary Cas: K B.
to orders, necessity sometimes will. As, if he be limited to sell goods i. i.
at a fixed price ; and the goods be perishable, and not in a condition 514, 515.
to be kept, and the factor has no time or opportunity for consulting contra.
with the principal, it is apprehended he may sell them for ready mo- () but see 2
ney under the price limited, in order to prevent a total loss.(e) But Mod. 100.
in such case it would be advisable to call in *two sworn brokers, or # 237
other competent persons to examine the commodity.

216 Of Principal, Factor, and Agent. [PART II.
“sº
A factor or agent cannot delegate his power to another without an
(f) Bunb. express authority from his principal for that purpose.(f) And in the
166. execution of the power given to a factor or agent, all contracts and
other acts should be expressed to be made and done by him in the
name and on the account of his principal ; otherwise the principal
may not in all cases be bound by them, and in that event the factor
(g) vide 9 or agent would be personally liable.(g)
Co. 76. b. -
Roll. Abr. A :* -..ºn of
330. F. l. l. t A factor or agent who has power to sell the goods of his principal
Cas., Temp. Scannet bind or affect the property of them by tortiously pledging, or
rºy º, otherwise disposing of them, either by way of security for, or in satis-
955. 1 Term, faction of his own debt.(h) -
*:::"..." And where goods are thus pledged, or disposed of the principal
176, 7 Comy may recover them back by action of trover against the pawnee, with-
§. "c. out tendering to the factor or agent what may be due to him, or with-
...” out any tender to the pawnee of the sum for which the goods are
pledged. And it is no excuse that the latter was wholly ignorant
that the former held the goods as a mere factor or agent.(i)
But a factor who has a lien on the goods of his principal may de-
liver them over to a third person, as a security to the extent of his
lien, with notice of his lien, and may appoint such third person as his
servant to keep possession of the goods for him. And in that case
\ the principal must tender the amount of the lien due to the factor be-
(k) Vide fore he can be entitled to recover back the goods so pledged.(k)
JM "Combie V.
Davies, 7 te
East's Rep. / If goods are consigned to a factor or agent who afterwards becomes
#.i. *bankrupt; and the goods remain in specie in his hands at “the time
rough, Ch. J. of such bankruptcy, the principal may recover them from the as-
%. 238 #signees by action of trover ; or, if the factor sells the goods, and
his assignees afterwards receive the money, the principal may reco-
ºver it from them in an action of assumpsit for money had and re-
(I) Scott v. (ceived.(l) So, where the factor on such a sale takes notes in payment
$º Rep. from the vendee, payable at a future day, and his assignees after-
400. See al- wards receive the money, the principal may recover it from them in
i. º in the same form of action.(m)
notis. So, bills remitted to a factor, or banker, while unpaid, are in the
§: Yºº nature of goods unsold ; and if the factor become bankrupt they must
** be returned to the principal, subject to such lien as the factor may
n) zinck v. have thereon.(n) -
#.º i. B. But if goods be consigned to a factor for sale, and he sell, and re-
& 94. g º
§. als. Co. ceive the money for them before his bankruptcy, and do not purchase
Bank. Laws,
shap. 8. S. (h) Wide the cases of Paterson v. Tash, Stra. 1178. JMaans v. Henderson,
15. 1 East's Rep. 337. Newsom and another v. Thornton, 6 East’s Rep. 17.
JM'Combie v. Davies, ib. 538. (4 Johns. Rep. 104.)
(i) JM 'Combic v. Davies, 7 East’s Rep. 5. See also Hartop v. Hoare, Stra,
1187. Dawbigny v. Dwal, 5 Term Rep. 604. (2 Maule & Selw. 298.)






CHAP. IV.] Of Principal, Factor, and Agent.
217
with the money any specific thing capable of being distinguished
from the rest of his property, the principal cannot recover the whole
amount from the assignees, but must come in under the commission.(0)
It hath also been ruled in equity,(p) that if one employs a factor,
and entrusts him with the disposal of merchandize, and the factor re-
ceives the money, and dies indebted in debts of a higher nature, and
it appears by evidence that this money was vested in other goods, and
remains unpaid, those goods shall be taken as part of the merchant’s
estate, and not the factor’s ; but if the factor have the money, it shall
be looked upon as the factor’s estate, and must first answer the debts
of a superior creditor, &c. for as money has no ear-mark, equity can-
not follow that in behalf of him who employed the factor.
But if fl. employs B. as his factor, to sell cloth, and B. sells the
cloth on credit and before the money is paid, B. dies indebted by spe-
cialty more than his assets will pay; this money shall be paid to 4.
and not to the administrator of B. as part of his assets, but thereout
must be deducted what was due to B. for commission ; for a factoris
in nature only of a trustee for his principal. (q)
[So, where sugars were shipped from abroad under a bill of lading,
which expressed that they were on account of the plaintiffs, and were
to be delivered to W. and their assigns, and W. who were the agents
of the plaintiffs for the management of their property consigned from
abroad, indorsed the bill of lading to the defendants, and drew bills to
the amount, which the defendants accepted and paid, and sold the
sugars at two months credit, at the expiration of which they carried
the amount of the proceeds to the account of W., who in the interval
between the sale and the expiration of the credit had become bank-
rupts: held that the plaintiffs were entitled to recover the proceeds
of such sale from the defendants, 1 Maule & Selw. 484.
f In the above case, the court considered it an unauthorized transac-
tion of pledge by the factors, and consequently not binding on the
plaintiffs.
* So, where a merchant abroad, consigned goods to T., for sale, on his
account, and T., sent the goods for sale to the defendants; Held, that
the defendants were bound to account to T. for the proceeds, and
could not retain them, to satisfy a demand of their own against him;
(o) Scott v.
Surman,
Willes' Rep.
400.
(p) Whit-
comb v. Ja-
cob, 1 Salk.
160.
(g) Burdett
v. Willett, 2
Verm. 638.
and that T. might maintain an action in his own name against the de-
fendants. Toland v. Murray, 18 Johns. Rep. 24.]
*I now proceed to show what contracts and other acts of a factor or
agent will bind his principal.
Vol. I. [28]


££8 Of Principal, Factor, and Agent. [PART II,
(r) 1 Ld. In the case of Bolton v. Hillersden,(r) which was an action of as-
*:::. †. sumpsit upon a promissory note. The defendant being a merchant, his
$. C. apprentice delivered a note to the plaintiff obliging his master to pay
-: 100l. to the plaintiff, or his order. Upon the trial it was proved, that
the apprentice had once given such a note to another person for mon-
ey received of him by the apprentice, which money was applied to the
master's use, and that the money due on that note had been recovered
of the master. The defendant proved that he did not trust his ap-
prentice to give such notes; and the apprentice himself swore, that
the had lost 100l. of his master's money at play, and that the day fol"
lowing a foreign bill was drawn upon his master, which he could not
pay ; therefore he resorted to the plaintiff, with whom the defendant
usually had dealings: and because the person who brought the foreign
bill would not receive guineas, being the only money he had, he per"
suaded the plaintiff to receive the guineas, and pay the bill, which the
plaintiff did : and that the apprentice gave his note to the plaintiff
for money received of him to pay the 100l. which he had lost at ga-
ming.
Holt, Ch. J. said, “If a master has never entrusted a servant to
* charge him by signing of notes in the master’s name ; yet if the
“money for which such note is signed comes to the use of the master;
“ or if in this present case the servant gave the note to raise money to
“pay the foreign bill charged to his master, which is for the benefit of
“his master; such note will bind the master, though he never per-
“mitted the servant to sign such notes before. But if in this case the
“ note was given for the money which the apprentice had lost atga-
“ ming, and which did not come to the master’s use, the master ought
“ not to be bound by it.” The jury gave a verdict for the plaintiff
which Holt well approved.
So, where a servant having power to draw bills of exchange in hie
master’s name, is afterwards turned out of the service. Holt, Ch. J.
(3) Holt's held,(s) that if he draws a bill in so little time after that the world,
itép. 460.see cannot take notice of his being out of service; or if he were a long,
*** ***. time out of his master's service, but that kept so secret, that “theº
tit. Master & º º * * * * * tº w
servant, k, world cannot takenotice of it, the bill in those cases shall bind the mas-
% 246) ter.
But with respect to the extent of an agent's power there is a wide
distinction between general and particular agents. If a person be
appointed a general agent, as in the case of a factor for a merchant re-
siding abroad, the principal is bound by his acts. But an agent, consti-
tuted so for a particular purpose and under a limited and circumscri-
bed power cannot bind the principal by any act in which he exceeds
his authority.
CHAP. IV.] Of Principal, Factor, and flgent. 219
Thus in the case of Fenn and another v. Harrison and others,(t) where (t) 3 Term
it appeared that a bill of exchange was drawn by Livesay and Co. on *
Gibson and Johnson, in favor of one Norman, which came by indorse- 390.)
ment to the defendants ; who, being desirous of getting it discounted,
employed Francis Huet for that purpose, telling him to carry it to
market and get cash for it, but that they would not indorse it. F. Huet
applied to his brother James Huet, to get the bill discounted, inform-
ing him that it was the defendants’ bill and that though they did not
choose to indorse it, yet he added (as a reason of his own) that, as their
number was on the bill, it was equivalent to an indorsement; and that
he (F. Huet) would indemnify him if he indorsed the bill. On an ap-
plication by James Huet to the plaintiffs, and on his indorsing the bill,
without which indorsement he could not have got the bill discounted,
the plaintiffs discounted it; chiefly relying on the credit of Gibson
and Johnson, for at that time they did not know that the defendants
had had any concern with the bill. Afterwards, however, on the fail-
ure of Gibson and Johnson, the plaintiffs having heard that the bill had
passed through the defendant’s hands, applied to them for payment,
who at first refused, but afterwards promised to take it up ; and, on
their not doing so, this action was brought to recover the amount of it. On
these facts the court held, that F. Huet was a special agent under a
limited authority, and as he was expressly directed by the defendants
not to indorse the bill, but merely to carry it to market, and get cash
for it, he could not bind his principals (the defendants) by any act be-
yond the scope of such limited authority. And that the defendants
were neither liable on account of the indorsement made by James
*Huet, nor on their subsequent promise to pay, because not being under
any obligation, it was nudum pactum.
But the court granted a new trial : and upon the second trial it
appeared in evidence, that the defendants, when they desired F. Huet
to get the bill discounted, did not say that they would not indorse it.
The court,(v) on these facts being stated, were unanimously of opin- º 4 Term
ion, that the plaintiffs ought to recover the amount of the bill, on the *P**".
ground that as the defendants had authorised F. Huet to get the bill
discounted, without restraining his authority as to the mode of doing
it, they were bound by his acts; and that, if it were doubtful from
the conversation, their subsequent conduct in promising to pay the
bill, was decisive. But Ashhurst, Buller, and Groose, Justices, said,
that unless the evidence on this trial had varied from that given be-
fore, they should have continued to entertain the same opinion which
they delivered on the former occasion,
* 244
So, in the case of the East-India Company v. Hensley,(w) which (w) 1 Esp
was an action on the case to recover damages for the loss arising from Rep. iii.
the re-sale of a certain quantity of raw silk sold by the company at
one of their sales to the defendant. The silk had been bought by one
220
Of Prineipal, Factor, and Agent, [PART II. .
* 242
w) Hicks v.
ankin, 4
Esp. Rep.
114.
(a) Per Bul-
ler, Just. 3
Term Rep.
454.
(y) Per Holt,
Ch. J. 1 Ld.
Raym. 101.
(g) 1 Salk.
289. Holt,
462. S. C.
See also 1
Term Rep.
12. Park on
Insurange,
chap. 10.
(15 East.
407.)
Briggs, a broker, for the defendant, and the defence set up by the de-
fendant was, that his orders to Briggs were to buy the best Bengal
raw silk, whereas this was not raw silk, nor of the best quality.
Lord Kenyon, took the distinction between a general and special
agent; “that in the first case the principal must be bound by all his
“acts, whereas in the latter, he is only bound, while the agent acts
“ within the seope of his authority, and that if in the present case the
“ defendant could prove that he had so specially authorised Briggs
“ to bid for him for best Bengal silk, and this turned out to be not of
“ that description, that he should not be bound by his contract so made
“without his authority ; but that Briggs should be liable to an action
“ at the suit of the Company for his abuse of it.”
But though a special agent, acting under a limited authority, cannot
bind his principal if he exceed his authority; yet if, upon the pur.
chase of goods, an agent has any discretion given him to exceed the
sum ordered to be paid, the principal is bound by the contract of his
agent, even if it should exceed that sum ; for by giving him a power to
exercise his discretion he cannot be considered as a special agent.(w)
Where an agentis employed to buy goods, his acknowledgment of
having received them, is evidence against his principal of a delivery to
him.(a)
An agent of a regimentis but a servant of the colonel, and the receipt
of the agent charges the colonel. There is no privity between the
king, or the soldier, and the agent. (y)
A principal is in general, responsible for the misrepresentation and
deceit of his factor or agent. As, in the case of Hern v. Nichols.(2)
which was an action on the case for a deceit, the plaintiffset forth, that
he bought several parcels of silk for silk, whereas it was another
kind of silk; and that the defendant well knowing this deceit, sold
it to him for——silk. On the trial, it appeared that there was no ac-
tual deceit in the defendant, who was the merchant, but that it was
in his factor beyond sea; And the doubt was, if this deceit could
charge the merchant Holt, Ch. J. was of opinion, that the merchant
was answerable for the deceit of his factor, though not criminaliter
yet civiliter; for seeing somebody must be a loser by this deceit it is
more reasonable that he who employs and puts a trust and confidence
in the deceiver should be a loser than a stranger : And upon this
opinion the plaintiff had a verdict.
But it is said,(*) “If a servant selleth a horse with warranty, it is
“ the sale and contract of the master, but it is the warranty of the
“ servant, unless the master giveth him authority to warrant it, for
* Per Doddridge, Just. Godb. 361.
CHAP. IV.] Of Principal, Factor and Agent. 221
“a warranty is void which is not made and annexed to the contract;
“but there it is the warranty of the servant, and the contract of the
“master : but if the master do agree unto it after, it shall be said % 943
“ that he did agree to do it ab initio.” Mr. Justice Ashhurst,(a) º ...”
however, *in commenting upon the above dictum makes this distinc- See also the
tion, namely, that if a person keeping livery stables, and having a case of Hek
horse to sell, directs his servant not to warrant him, and the servant fº.
does nevertheless warrant him, still the master would be liable on the 5 Esp. Rep.
warranty, because the servant was acting within the general scope of '72.
his authority, and the public cannot be supposed to be cognisant of
any private conversation between the master and servant : but if the
owner of the horse were to send a stranger to a fair with express di-
rections not to warrant the horse, and the latter acted contrary to the or-
ders, the purchaser could only have recourse to the person who actual-
ly sold the horse ; and the owner would not be liable on the warranty
because the servant was not acting within the scope of his employ-
Iment.
[So, where the master of a ship was authorized by the owners to
sell, and at the time of sale made false representations in favor of the
ship, held, the owners were not responsible to the purchaser, the
master having exceeded his authority. Gibson v. Colt, ct. al. 7 Johns.
Rep. 391.]
2. Qf payment to, or settlement with a Factor or 4gent.
A purchaser of goods from a factor or agent has a right to pay him
the money for them; and his receipt will be a sufficient discharge.(b) (b) Cowp.
But if the principal forbids the vendee of goods to pay the value to 256.
the factor, the vendee would not be justified in afterwards paying the
money to the factor. For a factor’s sale, by the general rule of law,
creates a contract between the owner and the buyer, which entitles
the former to call upon the latter for payment at any time before the
money is paid over to the factor; and it is the same notwithstanding
the factor acts upon a del credere commission.(c)
- (c) 2 Stra.
º º 1182. Cowp.
But if the factor at the time of the sale agree to set off a debt of his 255. Co.
own due to the vendee, it is binding upon the principal, and consider- Bank. Laws,
º º chap. 8. s. 15.
ed the same as if the factor received so much money from the ven- i.e.
dee.(d) N. P. 130.
(d) Willes'
Rep. 400.
So, where a factor, who sells goods under a del credere commis-
sion, sell them as his own, and the buyer knows nothing of the prin-
322
Of Principal, Factor, and Agent. [PART II.
% 244
(f) Yates v.
Freckleton,
Doug. 623.
(12 Johns.
Rep. 300.)
(g) 2 Lord
Raym.928.
Com. Rep.
138. 6 Mod.
36. et vide
Thorold v.
Smith, Holt’s
Rep. 464.
. S. P.
# 245
cipal the buyer may set off any demand he may have on the factor
against the demand of the principal.(e)
*Payment of a debt to an agent, (who is an attorney residing in the
country, and employed by the plaintiff’s attorney, living in London,
to sue a debtor, resident in the country,) is not a valid payment to the
plaintiff; but if made to his own attorney it would be a good pay-
ment.(f) & - J
If a master sends his servant to receive money owing to him, and
the servant instead of taking money, receives a bill, and the master,
on being told of it, disagrees, he is not bound by this payment; but
acquiescence, or any thing tantamount will be proof of the master’s
consent; and will make the act of the servant the act of the mas-
ter.
Thus, in the case of Ward v. Evans,(g) which was an action for mo-
ney had and received, &c. The facts found by the jury were, that
one Fellows, a merchant, who kept his cash with the defendant, a
goldsmith in Lombard-Street, was indebted to the plaintiff in 60l. 10s.
the plaintiffsent his servant to receive the money of Fellows, who or-
dered his servant to pay the plaintiff’s man the money at the defen-
dant’s. Accordingly both the servants went to the defendant’s shop,
and there the defendant’s servant was directed to pay the 60l. 108.
which he accordingly did by giving the plaintiff 10s. in cash, and a
note subscribed by one Wallis, a goldsmith, for 60l. payable to one
Freeman, or bearer, which the plaintiff’s servant accepted. This
transaction was about noon, and at that time Wallis was a solvent
person, and continued paying his bills till night. Next morning the
plaintiff’s servant coming with the note to receive the 60l. of Wallis,
found that he had stopped payment and was become insolvent. It
did not appear that the plaintiff was conusant of, or privy to this trans-
action of his servant, or had given him any authority to receive a note
instead of money, or approved of it afterwards.
* The Court held, “That when a servant is sent to receive money
“on a bill, he cannot accept a note instead of money without the par-
“ ticular directions of his master; and therefore the delivery and ac-
“ceptance of Wallis's note was no payment: But if the master af-
“terwards assents to this mode of payment, it amounts to a "previ-
“ous command. The taking, therefore, of such a note is no payment;
“ for it is always a conditional acceptance, and sounderstood not to be
“ a discharge till paid. But still the money ought to be demanded
(e) George v. Clagett, 7 Term Rep. 359. See also Rabone v. Williams,ib. 360.
in notis S. P. (But if he purchases Scienter it is otherwise. 2 Caine's Cas. 341.)
CHAP. IV.] Of Principal, Factor and Agent.
223
“ in convenient time, for if the party keep the note by him without
“ demanding it, he must run the hazard of it; but here it was de-
“ manded in due time.” Judgment for the plaintiff.
In the case of Wickson v. Brohan,(h) it appeared that the plaintiff (h) 10 Mod.
sent his servant, who was accustomed to transact his business for him,
on Saturday morning, with a note drawn upon Sir Stephen Evans,
with orders to get from him either bank bills or money, and turn them
into Exchequer notes; but the servant having other business of his
master upon his hands, to save himself the time and trouble of going to
Sir Stephen, went to the defendant and prevailed on him to give him
a bank bill for the note upon Sir Stephen 3 and then in pursuance of
his master’s orders, invested it in Exchequer notes, which he brought
to his master, not letting him know but that he had gone to Sir Ste-
phen. On the Monday following, Sir Stephen Evans failed ; and the
question was, upon whom this loss should fall.
Parker, Ch. J. who tried the cause was first of opinion that the loss
should fall upon the defendant, because the servant acted contrary to
his master’s orders, and the defendant by furnishing the servant with
a bank bill, did the master no service at all ; and if he had not done
it, the servant must in obedience to his master’s orders have gone
himself and received the money from Sir Stephen. But the Court, af-
ter argument, were all of opinion, “That the loss ought to fall upon
“the master alone ; for a servant by transacting the affairs of his
“master does thereby derive a general authority and credit from
“ him; and if this general authority should be liable to be determined
“ for a time, by any particular instructions or orders, to which none
“but the master and servant are privy, there would be an end of all
“dealing but with the master.” -
So, if a son having a general authority to receive and pay money
for his father, receive money due on a bill to his father, and give a
receipt for it, as money had to his father’s use, and afterwards gives
it away, the father can only recover it back from the donee; for his
son’s receipt is a good discharge of the debt, and therefore *his pos-
session is the possession of the father; the son being for this purpose
his servant.(i)
So, if ºff, usually receive the rents of the lord of a manor, if one of
his tenants pay his rent to 4. this is good payment to the lord.(k)
Where a person takes the security of an agent, unknown to the prin-
cipal, and give the agent a rečeipt as for the money due from the
principal ; in consequence of which the principal deals differently
with his agent on the faith of such receipt, the principal is discharged
although the security fail, if he can show that he was injured by means
109.
% 246
(i) I Salk.
289. Bull. N.
P. 35.
(k) Per Po-
wys, Just.
Holt. 462.
224
Of Principal, Factor, and Agent. [PART II.
(l) 3 East,
147. *
(15 Johns.
Rep. 44.)
(m) Gon-
sales v. Sla-
den, Salk. M.
S. S. Bull. N.
P. 130. Bac.
Abr. tit.
Merchant
and Mer-
chandize, B.
of such receipt, and the omission of the party to inform him of the
truth in due time. '
Thus, in the case of Wyatt v. The Marquis of Hertford,(l) which
was an action of assumpsit for work and labour. The facts were,
that the plaintiff, who had been employed to do certain work for the
defendant, after its completion sent in the amount of his demand to
the Marquis’s steward, who thereupon gave him his own draft on a
banker, and the plaintiff gave him in return a receipt for the money
on account of the defendant. The draft was dishonoured, and retur-
ned to the steward by the plaintiff, who accepted another draft from
him for the amount, payable 21 days after date, without making any
representation of the matter to the defendant. The second draft was
also refused payment ; and the steward becoming insolvent, applica-
tion was then made to the defendant, who resisted payment, on the
ground, that the steward had more than sufficient funds of the defen-
dant’s in his hands at the time of giving the first draft to have satis-
fied the plaintiff’s demand, and had gone away much in arrear to the
defendant on the balance of his accounts. A verdict was given for
the defendant. But, upon a motion for a new trial, Lord Ellenborough,
Ch. J. said, “That there must be a new trial ; for on revising his
“mote of the evidence, it did not appear that the defendant was in any
“way prejudiced by his steward having given his own security to
“the plaintiff, and taken the latter's receipt. That if it had appear-
“ed that the defendant had in the interval inspected the steward's
“ accounts, and had in any manner dealt differently with him on the
“supposition, that this demand had been satisfied as the receipt *im-
“ ported, no doubt the defendant would have been discharged ; for it
“was clear that the steward had sufficient money of the defendant’s
“in his hands to answer the demand.”
*º-ºº-
3. In what Cases a Factor, or Agent, may sue, or be sued upon Con-
tracts, &c. made with him on Account of his Principal.
Where a factor to one beyond sea buys or sells goods for his prin-
cipal, he may sue or be sued in his own name ; for the credit will be
presumed to be given to him in the first case ; and in the last, the
promise will be presumed to be made to him; and the rather so, as
it is so much for the benefit of trade.(m)
It has also been determined,(n) “that a factor, having money due
“to him from his principal, who receives cloths, and is authorised to
(n) Per Curiam in Drinkwater v. Goodwin, Cowp. 255. See also Loſt:331. S.P.
CHAP. IV.] Of Principal, Factor, and Agent.
925
“sell them in his own name, but makes the buyer debtor to himself,
“though he is not answerable for the debts, yet he has a right to re-
“ceive the money : his receipt is a discharge to the buyer; and he
“has a right to bring an action against him to compel the payment;
“ and it would be no defence for the buyer in that action to say, that
“as between him and the principal, he (the buyer) ought to have that
“money, because the principal is indebted to him in more than that
“ sum; for the principal himself can never say that, but where the
“factor has nothing due to him.” And in the same case, it was ob-
served by Lord Mansfield, “that there is no case in law or equity,
“where a factor having money due to him to the amount of the debt
“in dispute, was ever prevented from taking money for cloths in his
“ hands.”
So, a broker, who has advanced money on goods, may declare on a
contract respecting the sale of them in his own name, though in the
sale-note the name of the principal is inserted.
Thus, in the case of Atkyns and another v. Amber,(o) where the (*) 2 ºp.
“to pay them with a bill at two months, the amount of the *value of
“the timber. It then averred the delivery of the timber, and assign-
“ed a breach in the not giving the bill as agreed.” On the trial be-
fore Eyre, Ch. J. it appeared that one Hippius, a timber merchant,
had employed the plaintiffs as his brokers; and that they were in the
habit of advancing him money on the credit of the cargoes he expect.
ed to arrive. On the 2d December, 1795, Hippius was in the plain-
tiffs' debt; and he, having occasion for further assistance, applied to
them to advance him 540l. which they did accordingly by accepting
two bills to that amount. Hippius then gave them a written authori-
ty to dispose of a cargo of timber of his on board the Sally, on ac-
count of their engagements for him. This timber was afterwards
sold by the plaintiffs to the defendant; and the sale-note was, “ of so
“ much timber sold by the plaintiffs, on account of J. G. Hippius ; bill
“ at two months.” - -
On the part of the defendant it was contended, that there was a va-
riance between the contract stated in the declaration, and the one
given in evidence; and that therefore the plaintiffs ought to be non-
suited.
Eyre, Ch. J. said, “the saleºhote appears to be a sale by Hippius;
“and if it could be proved that, by supposing the contract to be with
“Hippius, the defendant suffered, the defendant should be at liberty
“to set up that sale against the plaintiffs; but no such thing is al-
Wok. I, [29] - º
wº º e e © a tº Rep. 493,
declaration stated, “That, in consideration the plaintiffs would sell ep. 49
“ to the defendant a cargo of Memel timber, the defendant undertook
* 343
226 Of Principal, Factor, and Agent. [PART II.
“leged. It is proved that the plaintiffs had at least a special proper-
“ty in the timber ; the sale was therefore theirs, and I am of opinion
“it is not a variance.”
(p) 8 Term So, in the case of Banfill v. Leigh and another,(p) where fl. and
Rep. 571. B. assigned to the plaintiff all debts due to them, and gave him a
power of attorney to receive and compound for the same, under which
the plaintiff submitted to arbitration the matters in difference sub-
sisting between his principals and the defendants; and the plaintiff
and defendants mutually promised to perform the award. The arbi-
trator awarded a sum of money to be paid by the defendants to the
plaintiff as such attorney, and the action was brought in his name for
the recovery of that sum. The court held, that the action was well
brought in the name of the plaintiff.
An agent is not liable to be sued upon contracts made by him on
* 249 behalf of his principal, if the name of the principal is disclosed ‘and
made known to the person contracted with, at the time of enteringin-
to the contract.
(q) 2 Esp. Thus, in the case of Owen v. Gooch,(q) which was an action of as-
Rep. 567, sumpsit for work and labour, and goods sold and delivered. The de-
fence relied upon was, that though the work had been ordered by the
defendant, yet that it had not been ordered for himself, but for a per-
son of the name of Tippell, and had been done at Tippell’s house, at
Walthamstow ; and that the plaintiff at the time of the order, was in-
formed that the work was on Tippell’s account: and the entry in the
plaintiff’s book was, “Mr. Tippell by the order of Gooch.”
The counsel for the plaintiff contended that the name of Tippellbe-
ing prefixed to the order, was by no means a proof that the credit was
given to him, but was merely identifying the order; that Tippell
might be a person totally unknown to the plaintiff, but to whom Gooch,
the defendant, was certainly known; so that the goods must be deem-
ed to be ordered on Gooch’s credit.
For the defendant it was insisted that Gooch by the order appeared
to be only the agent, and the goods to have been furnished on Tip-
pell’s account.
Lord Kenyon, Ch. J. “The goods are ordered by Gooch, but at the
“ time it is not pretended that they were for his own use; they
“were ordered for Tippell, and the entry is made in his name. We
“must keep distinct the cases of orders given by the parties them-
“selves, and by others, as their agents. If the mere act of ordering
“goods was to make the party who ordered them liable, no man could
Čhar. IV.] of Principal, Factor, and Agent.
227
“give an order for a friend in the country, who might request him to
“do it, without risk to himself. If a party orders goods from a trades-
“man, though in fact they are for another, if the tradesman was not
“informed at the time that they were for the use of another, he who
“ordered them is certainly liable; for the tradesman must be presum-
“ed to have looked to his credit only. So, if they were ordered for
“ another person, and the tradesman refuses to deliver them but on the
“credit of the person who orders them, there is then no pretext for
“charging such third person : or, if goods are ordered to be delivered
‘‘ on account of another, and, after delivery, the person who gave the
“ order refuses to inform the tradesman who the person is, in order
“that he may sue him ; under such “circumstances he is himself lia-
“ble: but wherever an order is given by one person for another, and
“he informs the tradesman who that person is for whose use the goods
“are ordered, he thereby declares himself to be merely an agent, and
“there is no foundation for holding him to be liable. In this case,
“Owen (the plaintiff) was informed of all the circumstances that
“Gooch was giving the order for Tippell ; the goods are sent to Tip-
“pell’s house, and the entry made in his name. I think there is no
“colour for making Gooch the debtor.”
So, where money is paid by mistake to an agent for the use of his
principal, and the agent has paid it over, he is not liable in an action
by the person who mispaid it ; because it is just that one man should
not be a loser by the mistake of another; and the person who made
the mistake is not without redress, but has his remedy over against
the principal. On the other hand it is just, that as the agent ought
not to lose, he should not be a gainer by the mistake: and therefore,
if, after the payment so made to him, and before he has paid the mon-
ey over to his principal, the person corrects the mistake, and gives
him notice not to pay it over to his principal ; the agent cannot after-
wards pay it to his principal, without making himself liable to the real
owner for the amount.(r)
(13 Johns,
Rep. 58.)
$ 250
(r) Per Lorū
Mansfield.
Cowp. 566.
The mere circumstance of passing such money in account, or mak- 568. See al-
ing rest, without any new credit given, fresh bills accepted, or furth-
so Sadler v.
Evans, 4
er sum advanced for the principal, in consequence of it, is not equiv- Burr. 1984.
alent to the payment of it over to the principal.
Bull. N. P.
133. S. P.
Thus, in the case of Buller v. Harrison,(s) which was an action for () Cowp.
money had and received, brought by the plaintiff against the defend- 565.
ant, to recover back a sum of 2,100l. paid him as due upon a policy of
insurance, as agent for the assured Messrs. Ludlow and Shaw, res-
ident at New-York. This sum the plaintiffhad paid, thinking the loss
was fair. Notice of the loss was given by the defendant to the plain-
tiff on the 20th of April; part of the money was paid at that time, and
228
Of Principal, Factor, and Agent. [PART II,
# 251
the remainder on the 6th of May following; on which day the defen-
dant passed the whole sum in his account with Messrs. Ludlow and
Shaw, and gave credit to them for it against a sum of 3,000l. in which
they stood indebted to him. On the 17th of May, notice was given by
the plaintiff to the “defendant that it was a foul loss. At this time
nothing had happened to alter the situation of the defendant, or to
make it different from what it was on the 20th of April: he had ac-
cepted no fresh bills, advanced no sum of money, nor given any new
credit to his principals; but affairs between them and him remained
precisely in the same situation as on the 20th of April. The question
at the trial was, whether this action could be maintained against the
defendant, as agent of the insured ; which depended on this ; wheth-
er the defendant's having placed his money to the account of his prin-
cipals, in the manner before stated, was equivalent to a payment of
it over. \s. *
-- …*
Lord Mansfield, Ch. J. “It is argued that this is not a mere placing
“to account, but a making rest. If it were, it would not vary the case
“a straw. There was no new credit, no acceptance of new bills, no
“fresh goods bought, or money advanced. In short, no alteration in
“the situation which the defendant and his principals stood in towards
“each other on the 20th of April. What then is the case P The de-
“fendant has trusted Ludlow and Co., and given them credit. He
“trafficks to the country where they live, and has agents there, who
“know how to get the money back. The plaintiff is a stranger to
“ them, and never heard of their names. Is it conscientious then,
“that the defendant should keep money which he has got by their
“misrepresentation, and should say, though there is no alteration in
“my account with my principal, this is a hit ; I have got the money,
“ and I will keep it? If there had been any new credit given, it would
“have been proper to have left it to the jury to say, whether any pre-
“judice had happened to the defendant by means of this payment :
: but here no prejudice at all is proved, and none is to be inferred.
“ Under these circumstances, I think that the defendant has no de-
“fence in point of law, and in point of equity and conscience he ought
(*) Stra, 480.
# 252
“not to retain the money in question.” The rest of the court were
ef the same opinion.
Where money is paid to an agent, or servant, and he misapplies it,
the person paying it has his remedy against the principal, of agent, at
his election.
Thus, in the case of Cary v. Webster.(t)The defendant was a clerk
of the South Sea Company, and took in the payments on the third
subscription : the plaintiff paid him 600l., and he, by mistake never
entered it in the book, but however paid it over to the company. *The
CHAP. IV.] of Principal, Factor, and Agent. 229
Chief Justice ruled, that no action would lie against him ; that if he
had not paid it over, the plaintiff would have had his option, either
to charge him or the Company ; as in the common case of payment
to a goldsmith's servant, who does not carry it to the account of his
master, the party has an election to go against either : he may charge
the servant, because till the money is paid over the servant receives
it to his use; or he may pass by the servant, and make his demand
upon the master, because the payment to the servant is made in confi-
dence of the credit given him by the master.
Though in general an agent is not liable to be sued upon a coſtfact
made by him, on behalf of his principal, yet if he make an absolute en-
gagement to perform it personally, he may be sued upon such engage-
ment.
Thus, in the case of Thomas v. Bishop,(u) where one Mildmay, (...)? º: 16
agent to the Pork Buildings’ Company, residing in Scotland, drew a *:::::: K.
bill of exchange in favour of J. S. on their cashier in London, which B, 320.5, 9.
bill ran thus: “ To...Mr. H. Bishop, cashier to the Honourable Gov- :* 955. §.
“ernor and Assistants of the Fork Buildings’ Company, at their house
“in Winchester-Street, London. Pay to J. S. or his order, 200l., and
“ place it to the account of the Fork Buildings’ Company, for value
“received, as per advice.” Mr. Bishop accepted the bill generally,
viz. “Accepted, J. Bishop.” The question was, whether this general
acceptance should charge Bishop in his own right? It was saved for the
judgment of the court, after a verdict at nisi priws for the plaintiff;
and it was resolved by the court that he was personally liable.
It is also said,(v) “that if a servant makes a written undertaking () Talbot v.
“ in this form : * Memorandum, that I have received of J. S. to the *is, 2
“‘ use of my master, the sum of 40l., to be paid at Michaelmas follow- Kel. 138. But
“‘ing.” The servant is liable hereby; for though in the memorandum ãº
“it is said to be to the use of his master, yet the payment being indefi- ºr Eq.(308.
“nite must be understood to be by him who sealed the bill: but if it
“ had expressed to be repaid by his master, that the servant would
“ not have been liable.” -
*And in the case of Appleton v. Binks,(w) which was an action of # 253
covenant upon articles of agreement between the plaintiff on the one (º) 5, ""
part, and the defendant, by the name and description of T. Binks, of ep. 148.
&c.(for and on the part and behalf of Lord Viscount Rokeby,) of the oth-
er part; whereby the defendant for himself, his heirs, &c. on behalf of
the said Lord Rokeby, covenanted with the plaintiff that the said Lord
Rokeby should pay a certain sum of money to the plaintiff, in consid-
eration of the conveyance in fee of certain premises, &c.
230
Of Principal, Factor, and Agent. [PAR'r II.
(a) The del
credere com-
mission is
usually one
and a half or
two per cent.
in addition to
thecustomary
commission
for selling,
&c.
(y) Wide 1
Term Rep.
112.
254 #
(3) 6 Bro. P.
C. 280 8vo.
ed.
On the part of the defendant it was contended, that the action did
not lie against him, upon articles describing him to be merely agent
for another. But the court said, “ that it was impossible to contend
“ that where one covenants for another, he is not to be bound by it;
“ the covenant being in his own name, ‘for himself, his heirs,’ &c.
“There was nothing unusual or inconsistent in the nature of the thing,
“ that one should covenant to another that a third person should do a
“ certain thing, as that he should go to Rome. The party to whom the
“ covenant is made may prefer the security of the covenantor to that
sºlis principal. Here the defendant covenants for himself, not in the
“name of his principal, and puts his own seal to it. There is nothing
“against law in it, if he will bind himself for his principal. He proba-
“bly consented to it upon an indemnity.” s
4. Of Sales, &c. on a del credere Commission.
Del credere is an Italian mercantile phrase,(*) and signifies aparticu-
lar kind of credit or responsibility, and when applied to the situation of
a factor, it is understood in the following sense : a factor who has gen-
eral orders to dispose of goods for his principal, and, in consideration
of being paid an aditional commission,(a) acts in nature of an insur-
er to him, by taking upon himself the risk of bad debts; and thereby
making himself absolutely liable in the first instance, for the payment of
the price of such goods, in the same manner as if he were himself the
purchaser, and was debited for them by the principal as such.(y)
*Thus, in the case of Mackenzie and another v. Scott,(z) where a ſac-
tor, under a commission del credere, sold goods and took accepted bills
from the purchasers, which he indorsed to a banker at the place of sale,
and received the banker’s bill (payable to the factor’s order) on a house
in London. This last bill the factor indorsed and transmitted to his
principal who got the same accepted ; but the acceptor and drawer af-
terwards failed. It was held, that the factor was answerable for the
amount of the bill; being personally liable, under his commission del
credere to satisfy his principal the price of the goods sold.
5. Of Sales, &c. By auctioneers.
An auctioneer employed to sell the goods of a third person by auction
may maintain an action in his own name, for goods sold and delivered
+ yºw
(*) Wide 6 Bro. P. C. 287. 8vo, ed.
CHAP. IV.] €f Principal, Factor, and Agent.
231.
against abuyer, though the sale be at the house of such third person, and
the goods known to be that person’s property. -
Thus, in the case of Williams v. Millington,(a) which was an action
of assumpsit for goods sold and delivered, and money paid. The plain-
tiff was an auctioneer, and employed by one Crown to sell his goods by
auction; the sale was at the house of Crown, and the goods were
known to be his property; the defendant bought goods to the amount
of 7l. 9s. 6d. and after packing them in a cart, which he had prepared
ready at the door, paid the plaintiff 21. 48.6d. in cash, and put a receipt
into his hand for five guineas, as for a debt due from Crown to the de-
fendant. While the plaintiff was hesitating about the propriety of taking
the receipt in payment, the defendant drove off the cart with the goods.
Afterwards, the plaintiff being called upon by Crown, paid to him (who
refused to accept the receipt) the whole sum for which the goods were
sold to the defendant, and brought this action to recover the five
guineas, in lieu of which the receipt was offered.
The question was, whether the action was properly brought in the
name of the auctioneer P
Lord Loughborough, Ch. J. said, “This case arises on circumstan-
“ces which do not often happen; the defendant having practised a
“trick upon the plaintiff by driving off the goods in a cart, and at "the
“same time holding out the money in sight, together with a paper
“ containing a receipt for the debt due from Crown, the owner. Though
“the defendant shall not be suffered to avail himself of such conduct,
(a) 1 H. Bl.
81.
* 255
“yet I entertain no sort of doubt on the general question, being ex-
“tremely clear that an auctioneer has a possession, coupled with an
“interest, in goods which he is 'employed to sell, not a bare custody
“like a servant or shopman. There is no difference whether the sale
“be on the premises of the owner, or in a public auction-room ; for on
“the premises of the owner an actual possession is given to the auc-
“tioneer and his servants by the owner, not merely an authority to sell.
“I have said a possession coupled with an interest; but an actioneer
“has also a special property in him, with a lien for the charges of the
“ sale, the commission, and the auction duty, which he is bound to
“pay. In the common course of auctions, there is no delivery with-
“out actual payment; if it be otherwise, the auctioneer gives credit
“ to the vendee, entirely at his own risk. Though he is like a factor,
“therefore, in some instances, in others the case is stronger with him
“than with a factor, since the law imposes the payment of a duty on
“ him, and the credit in case of a delivery, without the recompence of
“à commission del credere. It is not a true position that two persons
“cannot bring separate actions for the same cause: the carrier and
“the owner of goods may each bring actions on a tort; the factor
232
Of Principal, Factor, and Agent. [PART II
Yb) 5 Burr.
2639.
* 256
(c) Hardacre
v. Stewart, 5
Esp. Rep.
103.
(d) Peake's
Cas. N. P.
120.
“ and owner may each have actions on a contract. I am therefore,
“ upon the whole, decidedly of opinion, that this action may well be
“maintained.” The other judges concurring, judgment was given
for the plaintiff.
Upon the same principle an auctioneer is personally liable to be
sued for the recovery of the deposit money, where a valid title cannot
be made to a purchaser.
Thus, in the case of Burrough v. Skinner.(b) The defendant was
an auctioneer ; and, in that character, had sold to the plaintiff an in-
terest in land, for which the plaintiff had paid him a deposit of 50l. ;
but, upon an objection to the title, and the want of disclosure of cer-
tain circumstances which ought to have been disclosed at the time
of the bidding, the plaintiff (the purchaser) declined going on with
the contract; and, in the opinion of the court, she had sufficient rea-
son for so doing—She therefore required “the auctioneer to pay her
back her deposit of 50l. ; the auctioneer refused ; whereupon the
bidder brought this action against him to recover it. The auctioneer
paid 8l. into court: the cause was tried, and the plaintiff obtained
a verdict. The auctioneer moved for a new trial ; and had a rule to
show cause.
But, upon showing cause, the court were clear that the action lay
against the auctioneer. They said, “The money does not appear to
“ have been paid over by him to his principal ; but if it had been so,
“yet the objection appears to have been made before it either was
“or ought to have been so paid over. He was a stake holder, a
“mere depository of the 50l. and ought not to have parted with it till
“such time as the sale should be finished and completed and it should
“appear in the event to whom it properly belonged.” They also
thought that the auctioneer had acknowledged himself to be liable
to the action by paying money into court. The rule was therefore
discharged, and the plaintiff had judgment.
So, where an auctioneer employed to sell fixtures, has notice that
they do not belong to his principal, and he, notwithstanding, proceeds
to sell them, he is personally liable to the real owner in an action of
assumpsit for the produce of the sale.(c) -
So, where an auctioneer does not disclose the name of his principal
at the time of the sale, and the contract is not completed, he is person-
ally liable to an action of damages. {
*
Thus, in the case of Hanson v. Roberdeau.(f) The plaintiff had
bought a post obit bond at an auction, where the defendant acted as
CHAP, IV.] Of Principal, Factor, and Agent,
£83
an auctioneer, and the bond not being assigned within the time agreed
upon by the conditions of sale, the plaintiff brought the present action
of assumpsit against the auctioneer.
The name of the principal was not mentioned at the time of the
sale, and one of the conditions was, that 25l. per cent. should be paid
as a deposit; but although the plaintiff was to give 645l. for the bond,
only 50l. was paid down, which it was proved the defendant agreed
to accept as a deposit.
Two objections were taken by the defendant's counsel ; 1st, That
the agreement was not complied with on the part of the “plaintiff,
the whole deposit money not being paid ; 2dly. That the principal,
and not the auctioneer, was liable to an action.
Lord Kenyon, Ch. J. said, “The defendant, after having agreed
“to take 50l. for the deposit, cannot object that too little was paid.
“And though where an auctioneer names his principal, it is not pro-
“pér that he should be liable to an action, yet it is a very different
“ case when the auctioneer sells the commodity without saying on
“whose behalf he sells it; in such a case the purchaser is entitled
“to look to him personally for the completion of the contract.”
An action does not lie against an auctioneer, at the suit of his em-
ployer, for selling goods at the highest price bid for them, under
the usual conditions of sale, though he might have had the owner’s
express directions not to let them go under a larger sum named. He
would, however, be liable, if the owner had directed him to set the
goods up at a particular price, and not lower.
Thus, in the case of Beawell v. Christie,(e) which was an action on
the plaintiff’s gelding, which he had directions not to let go under 15l.,
for a less sum, viz.6l. Fés. 6d, contrary to such directions. The con-
ditions of sale were, “That the goods should be sold to the best bidder.”
Lord Mansfield, said, “There is no express undertaking on the part
“of the defendant, nor is it a direction that there should be no bidding
“ under 15l. which might be fair : but the direction given to the de-
“fendant is, ‘Not to let the horse go under 15l. ;’ which implies there
“might be a bidding under that sum. The question then is whether
“ the owner can privately employ another person to bid for him. The
“basis of all dealings ought to be good faith ; so, more especially in
“these transactions, where the public are brought together upon a
“confidence that the articles set up to sale will be disposed of to the
“highest real bidder : that could never be the case, if the owner might
“secretly and privately enhance the price, by a person employed for
Vol. I. [80]
# 257
Cowa,
the case against the defendant (an auctioneer) for negligently selling 395. §
.g. * * *
234
Of Principal, Factor, and Agent. [PART II.
* 258
(f) Spurrier
v. Elderton,
5 Esp. Rep.
f.
# 259
(g) Clapp v.
ſopham, 6
East's Rep.
392.
“that purpose ; yet tricks and practices of this kind daily increase,
“and grow so frequent, that good men give into the ways of the bad
“and dishonest in their own defence. An owner of goods set up to
“sale at an auction never yet bid in the room for himself. If “such
“a practice were allowed, no one would bid. His a fraud upon the
“sale, and upon the public. The disallowing it is no hardship upon
“the owner. For if he is unwilling his goods should go at an under
“price, he may order them to be set up at his own price, and not
“lower : such a direction would be fair ; or he might do as was done
“by Lord Ashburnham, who sold a large estate by auction ; he
“had inserted in the conditions of sale, that he himself might bid
“once in the course of the sale : and he bid at once 15 or 20,000l.
“Such a condition is fair ; because the public are then apprised, and
“know upon what terms they bid. In Holland, it is the practice
“to bid downards. Therefore, upon full consideration, I am of opin-
“ion, that a bidding for the owner in the manner contended for, and
“agreeable to the directions given in this case, would have been a
“fraud upon the sale : and consequently that this action against the
“defendant as auctioneer, cannot be maintained.” The other judges
were of the same opinion.
An auctioneer having sold an estate, received a deposit of the pur-
chaser ; but the title being discovered to be defective, an action was
brought against him to recover back the amount of the deposit, which
he accordingly paid, together with the costs of the action : it was rul-
ed,(f) that the auctioneer could not recover the amount of the costs
against his principal in an action of indebitatus assumpsit, for money
paid ; but should declare specially.
So, where an auctioneer was employed to sell an estate, the low-
est price of which was fixed by the owner, and written down by him
on a piece of paper, which was put under a candlestick at the time of
sale, with the privity of the auctioneer, but not signed by the owner,
nor any notice in writing given to the auctioneer of the price so set
down, nor had the auctioneer given the previous notice of the sale to
the collector of the duty, as required by the acts of the 19 Geo.III. c.
56. and 28 Geo. III. c. 37. : but being asked at the sale whether he
had taken the proper precautions to avoid the duty in case there were
no sale, he said, that it was his mode to fix a price under the candle-
stick, and if the bidding did not come up to that price, it was no sale
or duty: In point of fact there was no sale. The duty, however, did at-
tach in consequence of the auctioneer not having taken the precau-
tions required *of the owner by the statutes under such circumstan-
ces, and the auctioneer was sued for the duty on his bond to the crown,
and compelled to pay it : the Court of King’s Bench(g) decided that
the auctioneer could not recover it over against the owners, he hav-
CHAP. IV.] Of Principal, Factor, and Agent.
235
ing warranted that proper precautions had been taken to prevent the *
duty attaching in the event; though both parties were mistaken in
the law.
6. Of Contracts and Agreements between Principal, Factor, and
Jagent, inter se: And of their respective Rights and Remedies, &c.
—And, First, of a Factor or flgent’s liability on a Promise to in-
demnify his Principal upon a Re-sale of Goods, &c.
Where a broker buys goods for his principal, and agrees for a cer-
tain per centage to indemnify from any loss on the re-sale of them ;
if the principal has a fair opportunity of selling the goods to advan-
tage, but neglects it, the broker is discharged, though the principal
afterwards sells them at a loss. -
Thus, in the case of Curry v. Edensor,(h) where it appeared that (h) 3 Tºm
made two purchases of cotton, the one of 50 bags from Bateman, the
other of 40 bags from Entwisle ; and the defendant engaged for 1-2
per cent. to indemnify the plaintiff from any loss on the re-sale of
them. It appeared that the market price of cotton had risen gradu-
ally for about three weeks after the purchase, of which advantage the
plaintiff did not avail himself, though there was evidence to shew that
he was in the habit of attending the market, but he waited for some
weeks longer, when he re-sold them at a considerable loss : to recov-
er which difference the present action was brought upon the defend-
ant’s contract of indemnity. A verdict was given for the plaintiff.
But, upon a motion for a new trial, Lord Kenyon, Ch. J. said, “I
“think, on the fair construction of the contract of indemnity, that the
“defendant is discharged under the circumstances which have hap-
“pened; for the fair import of the “contract is, that the defendant
“should guaranty to the plaintiff that he should be enabled to make
** a profit of the cotton ; and there was evidence to show that there
“had been a gradual rise in the market for three weeks afterwards,
“during which time the plaintiff might have made considerable profits
“if he had chosen to avail himself of the opportunity. And having
“lost that opportunity, I think, he cannot now have recourse to the
“ defendant. If the agreement had been that the defendant was
“bound to give the plaintiff information respecting the time when
“ these goods could be re-sold to the greatest advantage, there would
“have been some ground for the plaintiff’s argument; but that was
“ not necessary; and, indeed, it appears that the plaintiff must have
“been fully apprised of the gradual rise of the market, as he was
“in the habit of attending it, If this were not sufficient to satisfy
the plaintiff, through the medium of the defendant, his broker, had R.
ep. 524;
#36
of Principal Factor, and flgent, [PART II.
$ 2.61
(*) See 1
Salk 9.
Carth. 89. S.
C. where
the promise
was eacpress.
But actions
are now fre-
quently
brought up-
on implied
promises on-
ly.
“ the contract of indemnity, no other line could be drawn. Therefore
“I am of opinion that there should be a new trial.”
Buller, J. “ The meaning of the guarantee seems to me to be
“this, ‘I will engage (said the defendant) that you may sell the cot-
“‘tons for as much as you gave for them.” That is the full extent of
“the contract : if so, it remains to be inquired whether the plaintiff
“could have sold the goods at an advanced price, and whether or not
“he has been guilty of negligence in not having so done. There is
“no doubt upon the evidence but that he might have re-sold them
“at a considerable advance. But it is objected that it does not
“appear that the plaintiff knew of the rise of the market, and that
“the defendant was bound to give him notice of it. To this it may
“ be answered, that the plaintiff, having engaged in a mercantile
“transaction, and having speculated on the rise and fall of the mark-
* ét, was bound to take notice of the true state of it. In such a case
“ as this, where there was a continued advance in the price for three
“weeks, it was not necessary for the defendant to call on the plain-
“tiff to re-sell the goods. If indeed there had been a sudden rise in
“ the market for a few hours, or for one morning, and that was known
* to the defendant and not to the plaintiff, the former would not have
“ been discharged, unless he had informed the latter who then ne-
“glected to take advantage of it. But here it is clear, upon the evi-
“dence, that the plaintiff might have made some gains, if he had
“chosen to avail himself of the opportunity. He neglected however,
“ to take that opportunity, and chose to speculate still further, but
“ that he could not do at the *defendant’s risk; for if he might have
“profited by a re-sale of his goods, and did not, that is sufficient to
“discharge the defendant.” A new trial was accordingly granted.
-º-
2. Of the Remedy against a Factor or Agent for not Accounting,
and for Negligence, &c.
Where goods are delivered to a factor or agent to be sold and dis-
posed of for his principal, the law implies a promise on the part of the
factor that he will render an account of them whenever called upon by
the principal : but if he refuse to account, he is liable to an action of
assumpsit for the breach of his implied promise.(i) If, however, there
be a long and intricate account between the principal and his factor,
the proper remedy is by action of account, wherein auditors are ap-
pointed by the court to inspect and examine the accounts of the par-
ties, and to make all just allowances.(k)
(º) 12 Mod. 517. Godfrey v. Saunders, 3 wils, 94. 117. Bac. Abr. tit.
Jäccompt. ,
CHAP, IV.] Of Principal, Factor, and Agent, 237
So, where a factor or agent has actually received money on account
of his principal and refuses to pay it over, an action of indebitatus
assumpsit lies against him for so much money had and received.(l) §. jº,
& ... pl. 297.
-> º e 2 Mod. 263.
So, where fl. appointed B. his deputy to an office; and it was Com, Dig.
agreed that B. should account with .A. for all fees, &c. according to º *::::
the table of fees belonging to such office, and pay him three-fourth A. i.”
parts thereof, and retain the other fourth part for his trouble. Certain
fees were received by B. which he insisted upon being solely entitled
to, because they were not contained in the table ; but it was held,(m) (m) JMachen
that B. should account with J. for all fees ascertained by the table, ac- v. Stanyon. 1
cording to the table; and for all fees not mentioned therein, according ; #: ed
to his receipts, and pay over three-fourths of the whole to 4. See also
Bulstrode v.
- º º º Gullb 2
*We are now to consider in what cases a factor or agent is answer- jº.
able to his principal for neglect of duty. S. P.
* 262
If a merchant directs his factor or correspondent to insure, and he
neglects doing so, he is liable to an action for this neglect of duty.
Thus, in the case of Smith v. Lascelles,(n) which was an action on
& e e (n) 2 Term
the case for neglecting to make an insurance on the freight of goods ... iś.
shipped from Dominica to London. The facts were, that the plaintiff, i. º:
being indebted to the defendant in 850l. in February, 1785, mortga- º f iºn,
ged to him his interest in the goods and freight, by way of security; Rep. 22.S. P.
in which mortgage was contained a proviso, that the deed should be
void in case of payment in August, 1785. In July, 1785, the plain-
tiff in a letter inclosing the bills of lading, desired the defendant to
procure an insurance on the goods and freight, which letter could
not have been received before the mortgage became absolute. The
defendant did cause insurance to be made on the goods, though not
on the freight. At the trial, proof was given of a letter having been
received by the defendant from the plaintiff, but it did not appear
whether it was the letter in question.
A verdict having been found for the plaintiff, a motion was made
to set aside the verdict ; but the court refused the rule, and held, that
the plaintiff was entitled to recover. Buller, J. said, “ It is now set-
“tled as clear law, that there are three instances in which such an
“ order to insure must be obeyed.—First, where a merchant abroad
“has effects in the hands of his correspondent here, he has a right to
“expect that he will obey an order to insure, because he is entitled to
“ call his money out of the other’s hands when and in what manner
“he pleases. The second class of cases is, where the merchant
“ abroad has no effects in the hands of his correspondent, yet if the
“course of dealing between them be such, that the one has been used
238 - Of Principal, Factor, and Jägent. [PART H.,
“ to send orders for insurance, and the other to comply with them,
“ the former has a right to expect that his orders for insurance will
“still be obeyed, unless the latter give him notice to discontinue that
“course of degling. Thirdly, if the merchant abroad sends bills of la-
* 263 “ ding to his correspondent *here, he may engraft on them an order
“ to insure, as the implied condition on which the bills of lading shall
“be accepted, which the other must obey if he accept them, for it is
“ one entire transaction. It is true, as it has been observed, that un-
“ less something has been held out by the person here to induce the
“other to think that he will procure insurance, he shall not be compel-
“ led to insure. But if the commission from the merchant abroad con-
“sist of two parts, the one to accept the bill of lading, the other to
“cause an insurance to be made, the correspondent here cannot ac-
“cept it in part, and reject it as to the rest. If such be the law on this
“subject, the fact in this case is clear; for, with regard to the letter.
“there is no pretence for saying, that any other was received by the
“ defendant from the plaintiff, but that containing the order of insur-
“ance, and the jury have so found it.”
So, where a merchant here had accepted an order for insurance,
and limited the broker to too small a premium, in consequence of
which no insurance could be procured, the court held, that the mer-
(6) Wallace chant was liable to make good the loss to his correspondent,(0)
v. Tellfair, 2 -
º: So, where a merchant directs his factor(p) or correspondent to insure,
(p) Tickel v. and he charges him with it as if done, and a loss happens he shall be
§ºrt, *W** charged as insurer: but if the factor employs an agent, this equity
9. *
23 will not extend to that agent.
But, if an agent, to whom orders to insure are sent, does what is
(g) Smith v. usual to get the insurance made, that is sufficient;(q) because he is no
º 2 insurer, and is not obliged to get insurance at all events. Thus, if he
i..." send to Lloyd's and the underwriters refuse to take the risk at any pre-
mium ; and he afterwards send to get insurance done at Newcastle
he has done his duty, and can never afterwards be charged in this ac-
tion : more especially if the plaintiff adopt and approve his acts.
And in order to maintain an action on the case against an agent for
negligence, the principal must show, that the agent was guilty either
of a breach of positive orders, gross negligence, or fraud. -
# 264 *Thus, in the case of Moore v. Mourgue,(r)which was an action brought
(i) Cowp. by the plaintiff, who was a merchant at Alicant, against the defendant,
479. his agentin London, for misbehaviour, in not insuring the plaintiff’s
goods agreeable to his directions. The goods were a cargo of fruit ;
CHAP. IV.] Of Principal, Factor, and Agent.
239
and by the letters produced in evidence, it did not appear that the
plaintiff had given the defendant any particular directions how or
with whom to insure ; but only generally, to insure the cargo. The
defendant insured with the London Assurance office, who, in poli-
cies upon fruit always put in an exception, “free from particular aver-
“ age.” This policy was made therefore with that exception. The
loss was not entirely a total loss ; for though the goods were at first
under water, some were saved ; but those that were damaged would
not pay the salvage of them. Upon the trial the jury found a verdict
for the defendant; and one of them said the ground of their verdict
was, because they theught he had acted bona fide to the best of his
judgment.
The plaintiff moved for a new trial ; but the court refused the rule.
And Lord Mansfield said, “To maintain this action, the defendant
“must be guilty either of a breach of orders, gross negligence or fraud.
“Now my direction to the jury was general; that if they thought
“ there was gross negligence, or the defendant had acted mala
“fide, they should find for the plaintiff; if, on the contrary, they
“were of opinion that he had acted bona fide, and to the best of his
“judgment, then they should find for the defendant. In delivering
“ their verdict they say, they did not think the defendant guilty of
“gross negligence, or that he acted mala fide ; the court, therefore,
“ will not say so. The plaintiff, if he pleased, might have given or-
“ders to the defendant not to insure at the London Assurance Office;
“ but at some ether office where this exception would not have been
“ insisted on. But he gives no directions at all. Therefore he left it
“to the discretion of his correspondent, who, if he meant no fraud,
“ was at liberty to elect between the underwriters. It seems the
“ Eacchange Assurance and the London Assurance Office differ in the
“form of their policy : but though the one runs a risk which the oth-
“er does not, the premium is the same. There could be no tempta-
“tion therefore to the defendant as to his choice between them. If
“upon all the circumstances, the jury had found for the plaintiff, it
“might have been a cast whether the court would "have granted a
“ new trial. A fortiori, in a hard action, where, as no particular or-
“ders were given, there has certainly been no breach of orders;
“ where the defendant appears to have acted bona fide, and where
“the plaintiff has himself been guilty of the first omission in giving no
“ directions at all, there seems to be no ground for the court to inter-
“ pose against the defendant. Therefore I am of opinion the verdict
“ought to stand.”
A banker in London receiving bills from his correspondents in the
country, to whom they had been indorsed, to present for payment, is
%. 265
240
Qf Principal, Factor, and Agent. [PART II,
(s) 6Term
Rep. 12,
§ 266
(t) 1 Esp.
Rep. 450.
not guilty of negligence in giving up such bills to the acceptor upon
receiving a check upon a banker for the amount, although it turn out,
that such check is dishonoured. - .
Thus, in the case of Russell v. Hankey,(s) where it appeared that
the defendants were bankers in London, in correspondence with the
plaintiffs, their customers in the country : that the bills in question
which had been indorsed to the plaintiffs in the course of negotiation,
had been transmitted by them to the defendants in order to obtain
payment from the acceptor, who resided in London, and to carry the
amount to the account of the plaintiffs. That the defendants accord-
ingly tendered the bills to the acceptor for payment, when he gave
them a check upon a banker in London for the amount, upon the re-
ceipt of which check they delivered up to the acceptor the bills in
question. It turned out that the check was dishonoured, the person
on whom it was drawn having no account with the drawer. Upon
these facts, which were not disputed, the plaintiffs contended, that
the defendants had been guilty of negligence in giving up the bills for
the check they had received in payment, without previously inquiring
whether or not the check would be honoured. The defendants on
the other hand insisted they had only done what was usual in the or-
dinary course of trade and business of bankers, and therefore ought
not to be answerable for the event; and Lord Kenyon, Ch. J. before
whom the cause was tried, being clearly of this opinion, the plaintiffs
were nonsuited.
A motion was made to set aside the nonsuit upon the ground be-
fore stated. But the court said, “We dare not even grant a rule to
“ show cause, as it would be putting the whole trade of London in
“*suspense pending it. There is no ground to impute negligence to
“ the defendants.”
If an officer on foreign service sends in his resignation to the agent
of the regiment for the sale of his commission, the agent must take
care to secure to him the purchase money. - -
Thus, in the case of Sturdy v. Ross,(t) which was an action of as-
sumpsit for money had and received. The action was brought by the
plaintiff, who had been an ensign in the 54th regiment of foot, to re-
cover from the defendant, who was agent to the regiment, the sum of
400l. and interest, being the amount of the sale of his commission, on
quitting the regiment.
For the plaintiff it was proved, that he being absent in America, do-
ing duty with the regiment, had transmitted to the defendant, as agent
of the regiment, his resignation.
On the other side, it was proved, that this resignation is delivered
to the colonel of the regiment, who accepts it, and sends in with it to
CHAP. IV.] Of Principal, Factor, and Agent.
the war-office a recommendation of the successor; but it was in evi-
dence, that no commission is made out for the successor, without a
certificate that the money is lodged for the purpose of the purchase.
The money had in fact been paid to one Cuthbert, who had been in
the service of the defendant, and who, the plaintiff contended, was so
at the time of the money paid ; but the defendant relied, that after the
resignation was handed over by him to the colonel, his responsibility
was at an end ; and in the present instance, Cuthbert having been the
private agent of the colonel, it was further relied, that the money had
been paid to him in that capacity; so that if any person was liable it
was the colonel. Cuthbert had died insolvent.
An army agent also gave in evidence, that when he sold a commis-
sion, he secured the purchase money, unless where the parties settled
it among themselves ; and that he had never received the resignation
of any commission which another person had sold.
Lord Kenyon, Ch. J. ruled, that where the officer was absent on
foreign service, it was the duty of the agent, when the resignation was
sent in to him, to take care that the purchase money was properly se-
cured to him, as otherwise the situation of officers abroad would be
subjected to much risk and inconvenience ; that *in the present in-
stance, the defendant must be considered as adopting the acts of Cuth-
bert, and therefore liable for money received by him in that capacity.
The jury found a verdict for the plaintiff for the whole sum and inte-
rest. - :
Where fl. entrusted B. with goods to sell in Podia, agreeing to
take back from B. what he should not be able to sell, and allowing him
what he should obtain beyond a certain price, with liberty to sell
them for what he could get, if he could not obtain that price. B. not
being able to sell the goods in India himself, left them with an agent
to be disposed of by him, directing the agent to remit the money to
himself in England—It was held,(v) that fl. could not maintaintrover
against B. for the goods.
sº-sº-
3. Of the Factor's lien on the goods, &c. of his Principal.
(v) Bromley
v. Coacwell, 2.
Bos. & Pull.
438.
A factor has a lien on goods consigned to him, for the general bal- -
ance due to him, as well as for incidental charges attending the
particular goods in his hands:(v) But this lien remains so long only
(w) Kruger v. Wilcow, Ambl. 252. 1 Burr. 494. 1 Bl. Rep. 104. 6 East,
23. in notis. S. C. See also Lickbarrow v. JMason, 2 Term Rep. 63. And the
very elaborate and learned opinion delivered by Mr. Justice Buller on this case
in the House of Lords, as given in 6 East's Rep. 21, n., a.
Wo L. I. [31]
242. Of Principal, Factor, and Agent. [PART II;
as he retains the possession of the goods: for if heparts with the pos-
session he parts with his lien, because it cannot then be retained as an
(w) Wide item for the general account,(w)
Sweet v. Pym,
1 East's Rep. & e º
4 In the case of Drinkwater v. Goodwin,(a) however, it was held, that
% *"P" a factor has a lien on the price of the goods in the hands of the buy-
º er; for though he has not the actual possession of them, yet if he has
a power of giving a discharge, or bringing an action, he has a right to
retain the money in consequence of his lien, as much as a mortgagee
has by the title deeds of an estate in his hands, though he is not in pos”
$62S810Il. -
But though the general rule of law be, that a factor has a lien on
%. 268 the goods of his principal for his general balance, yet this like *other
general rules may be controled by the agreement of the parties; as
if fl. deposit goods with B. for sale, and B. promise to pay the pro-
ceeds to ºff. when sold; B. has no lien on these goods (if not sold) for
the balance of his general account arising upon other articles ; the
(y) Walker v. express stipulation in this case negativing the general rule of law.(y)
Birch, 6 +
T Rep. º
3:...'s...is So, a factor has no lien on goods for a general balance, unless they
§ffken. v. come into his actual possession.(2) And if a factor accept bills drawn
#. *. by his principal upon the faith of consignments agreed to be made by
371. the principal to the factor, and both of them become bankrupts before a
g *: cargo consigned come into possession of the factor, his assignees have
Term Rep. no property in such cargo, and cannot recover the produce of it
1 i9. against the assignees of the principal, if they have sold it and received
(a) Ib. 3 the purchase money.(a)
Term Rep. So, where a trader, after a secret act of bankruptcy, consigns goods
#: º, to a factor, who advances money thereon; the latter has no lien on such
că. S.C. goods, but must deliver them up to the assignees of the bankrupttra-
der.(b)
b) Copeland e º º
9.g. So, if 4. employs a factor, to sell goods he has no lien upon them, in
º Rep. respect of any debt due for other goods sold by him in his own name
º to 4. on the account of another employer, previous to his being em-
ployed by M.
Thus, in the case of Houghton and another, assignees of Jackson,
(c) 3 Bos. & a bankrupt v. Matthews and another,(c) which was an action of trover,
full. 485, in which it appeared, that the defendants, who were brokers, had on
the 3d of September, 1799, sold a parcel of logwood and fustic to
Jackson, the bankrupt ; and on the 11th of the same month, a parcel
of indigo ; neither of which parcels were paid for at the time of Jack-
son’s bankruptcy; the logwood and fustic was the property of a per-
son of the name of Greatham, and the indigo of a person of the name
€nar. IV.] Of Principal, Factor, and Agent.
243
of Dizon ; both these parcels had been put into the hands of the de-
fendants by the proprietors, to be sold by them as brokers, and both
sales were effected in the names of the brokers only, it being their
practice to sell in their own name, where the party for whom they
sold was indebted to them.At the time of such sales, *and
when this action was commenced, there was a balance due both from
Greatham and from Dixon to the defendants. Soon after the above
sales, Jackson, the bankrupt, put into the hands of the defendants the
indigo in question, to sell, as brokers; no advance being made by
them upon the indigo, nor any debt existing between the defa
and Jackson, other than what was due to the former for goods of".
ham and Dixon, purchased by Jackson of the defendants, as before
mentioned. Indeed the commission to sell the indigo in question, was.
the first time the latter had ever employed the defendants as brokers.
While the indigo in question still remained unsold in the hands of the
defendants, as brokers, Jackson became a bankrupt. Upon this the
plaintiffs, as his assignees, demanded the indigo, and tendered pay-
ment of any charges which might have been incurred in respect of
that article ; the defendants refused to deliver it up, claiming a lien
upon it for the debt due from the bankrupt, in consequence of the
goods of Greatham and Dixon sold to him, and which still remained
unpaid for.
The court were of opinion, that the defendants had no lien for the
debt due to Greatham and Dixon, and that the assignees were en-
titled to recover.
Chambre, J. said, “The question is, whether when a broker
“ receives goods to sell for 4. he is entitled to retain them though
“ unsold, after a tender of all charges due in respect of those goods,
“ on the ground of a lien for the price of other goods sold hy him for
“ B. to A. under a general authority from B. to sell, there being no
“general balance due from A. to the broker, and the broker not hav-
sing sold the goods of B. under a del credere commission 2 I state the
“ question thus, because I conceive that in the present case, the mere
“ act of the bankrupt buying goods of the defendant did not constitute
“ the relation of principal and factor between them. The demand of
“ the defendant upon the first goods did not arise out of any course of
“dealingin the relation of principal and factor, but was as foreign to
“ that relation as if it had arisen upon a legacy, or any other species of
“ debt the most remote from that course of dealing. I do not find any
“authority for saying, that a factor has any general lien in respect
“ of debts which arise prior to the time at which his character of
• factor commences; and if a right to such a lien is not establish-
“ed by express authority, it does not appear to me to fall within the
“general principle upon which the liens of factors have been allowed,
# 269


244
of Principal, Factor, and Agent. [PART II,
# 270
(d) JMan v.
Shiffner 2
East's Rep.
523,
(e) Ham-
monds v.
Barclay, 2
East's Rep.
227.
* 271
º
* It *seems to me that the liens of factors have been allowed for
“ the convenience of trade, and with a view to encourage factors to
“advance money upon goods in their possession, or which must come
“to their hands as factors; but debts which are incurred prior to
“the existence of the relation of principal and factor, are not con-
“tracted upon this principle. And if the lien now contended for
“were allowed, instead of inducing persons to place goods in the
“hands of factors, it would operate the contrary way, since it would
“tend to prevent insolvent persons from employing their creditors as
“factogºlest the goods entrusted to them should be retained in sat-
“isfactiºn of former debts. If this were the only point in this case,
“I should be of opinion, that the defendants were not entitled to re-
“tain : but laying this point out of the question, I still think the debts
“ due from the bankrupt, in respect of the goods sold to him, are
“not to be considered as due to the defendants, so as to authorize
“them to set off such debts, in an action brought against them by the
“bankrupt’s assignees, and that the defendants have no property or
“interest whatever in those debts. I never yet heard of a person
“being allowed to protect himself by setting up debts in reality due
“to other persons ; or that a factor, having no demand on his prin-
“cipal, could, by transactions with a third person, create a new in-
“terest in himself.”
But the assignee of a policy of insurance on goods,(d) who becomes
such by the indorsement to him of the bill of lading of the goods by
the consignor, after he had directed his correspondent to make the in-
surance, takes it subject to the lien of the correspondent of the con-
signor for his general balance; and can only claim, subject to that li-
en, the money received on such policy by the broker, in whose hands
it was deposited for that purpose by the correspondent. But the
broker has no sublien on the policy for the general balance of his
own account with such correspondent, if he knew at the time that the
policy was effected for another person.
So, where a principal gives notice to his factor(e) of an intended
consignment of a ship to him for the purpose of sale, and in conse-
quence draws bills on him, which the factor accepts; and afterwards
the principal dies; but his executors direct the captain *of the ship to
follow his former orders ; who thereupon delivers the ship into the
possession of the factor, who sells the same ; it was held, that the fac-
tor has a lien upon the proceeds as well for the amount of money dis-
bursed by him for the necessary use of the ship on its arrival, and for
the acceptances by him actually paid, as for the amount of his outstand-
ing acceptances not then due.


CHAP, IV.] of Principal Factor, and Agent, - 245
4. In what Cases a Factor or Agent is not entitled to recover for Com-
mission, or Money paid, &c, -
In the case of Hereford v. Powell,(f) it was ruled by Holt, Ch. J. (f) Hºlºs
“That where a factor abroad deserves money for factorage he cannot * 67.
“bring an action for his factorage, unless the principal refuse to come
“ to account; and if it appears that the factor hath money in his hands,
“he may detain, and cannot bring an action for his factorage; but if
“he were directed to vest all the produce of the adventure in wines,
“ or other goods, then he might bring an action for his factorage, be-
“cause he cannot detain, and hath no other remedy.”
So, a factor or agent shall not have any salary allowed him where he-
acts against the interest of his principal.(g) (g) JMaxwell
So, a broker who contracts with others for the sale of stock at a fu- y. Sharp, H.
ture day by the authority of his principal, who afterwards refuses to *...* *...*
make good the bargain, cannot, by paying the difference to such third P. C. 389.
persons maintain an action on an implied assumpsit against his princi- * *
pal for the amount ; such payment being considered voluntary for (h) Wide
which no action can be maintained.(h) Child v. JMor-
ley, 8 Term
Rep. 610.
GHAPTER W.
of contRACT's BY AGENTs of Gover NMENT, &e.
AN officer appointed by government, treating as an agent for
the public, is not liable to be sued upon a contract made by him in that
capacity, unless he make an absolute and unqualified undertaking to
be personally responsible.
º, 1 ºrm Thus, in the case of Macbeath v. Haldiman,(a) which was an action
jº, tº upon promises against the defendant, as agent, for work and labour.
rule of law. The cause was tried before Buller, Just, and at the trial a verdict was
. i. º: found for the defendant, by the direction of the learned Judge, under
case applies the following circumstances, which were reported to the Court of
... King’s Bench, upon a motion for a new trial.
tract be by
. or by In the year 1779, the defendant being Governor of Quebec,appointed
eed. Wide ſº gº º n are - - - -
Unwin v. Captain Sinclair to the command of a fort called Michilimakinac,
ºeley, situated upon Lake Huron, in the province of Canada. On the 17th
J & “it 4 Jługust 1779, the defendant transmitted certain instructions to Sin-
clair respecting the government of the fort, in which he said, “You
“ are to pay great attention to the Indians resorting to Michilimakinac,
“ or furnished with necessaries from thence. Endeavour to preserve
“ them in good humour ; and attach them by every means in your
“ power to the King’s interest.”
In a further part of the same instructions, he added.
“You will draw bills of exchange for defraying the contingencies
“incident to that post, in the manner practised by Major De Peys-
“ter, (an officer on whom that command had been before conferred,)
“taking care to moderate and reduce those expenses, as far as can be
* done without injuring the King’s service.”
*For some time, Sinclair employed one Grant to distribute presents
among the Indians, and to procure military stores, &c. for the use of
the garrison; and, to defray these and other expenses, drew bills of
exchange upon the Governor, according to his instructions. When
these accounts came to the defendant, he made objections to several
of the articles as unnecessary and exorbitant; and soon after recom-
mended the plaintiff to Sinclair by a letter dated the 16th May, 1782,
of which the following is an extract:
**
CHAP. V.] Of Contracts by Agents of Government, &c.
24?
“Upon an examination of the accounts accompanying your late
“ drafts, for expenses incurred at Michilimakinae, the articles are, in
“general, charged at prices exceeding all bounds of moderation.
“Upon comparison of the prices made here, the advantage taken of
“ the necessities of the Crown by the traders at Michili, akinac, is
‘. shamefully obvious; and it is more so in the account of Mr. Grant,
“who appears to be an agent for government, than in any other par-
“ ticular. ... ?
“Persuaded that you have supplied your wants from those traders
“ in whom you have had the greatest reason to confide, I find there is
“but little to be expected from any of them residing at that post ;
“ which induced me to make inquiry if any person could be found
“here more worthy of the public confidence. A Mr. Macbeath, who
“will deliver this letter, and who has just made application for a pass,
“ was mentioned to me as a man of known and established integrity;
* and, upon a more particular inquiry, I find that he has always,
“both here and in the upper country, merited that character. I have
“ proposed to him to supply the Crown with such quantities of Indian
“corn and grease as may be wanted for the necessary purposes at
“ that post; and likewise all other articles which shall occasionally
“ be wanted in the engineer department, which he has undertaken to
“do for 10l. per cent, on the market prices at the place, (costs and char-
“ges) a profit which appears to be reasonable, inasmuch as it is great-
“ly under that hitherto charged.”
[After some orders given relative to the plaintiff]
“These instructions, and all others that concern the interest of the
* Crown, I am persuaded that you will cheerfully give him.”
A letter from the defendant to the plaintiff, dated May 17th,
1782 :
“*Having thought it fit to direct Lieutenant Governor Sinclair,
“ commanding the post of Michilimakinac, to employ you in supply-
“ing such quantities of corn and grease, and all other articles, as shall
“ be wanted for the use of the Crown at that post, in consequence of
“ your offer to furnish the same at 10l. per cent. on the costs and char-
“ges here and to Michilimakinac, for all articles, (corn and grease
“excepted) and these at the same rate where they shall be purchas-
“ed, for which sufficient vouchers are to accompany your accounts.
“You are therefore hereby directed to make applications from time
“ to time, to Lieutenant Governor Sinclair for such directions, infor-
“mation, and assistance, as will best enable you to execute that bu-
“siness to the greatest advantage for the public interest, as your con-
“tinuing in this employ will entirely depend upon your conduct
“ therein.” -
# 274
248
Of Contracts by Agents of Government, &c. [PAar II.
# 275
Several special orders were proved from Sinclair to the plaintiff,
for supplying particular articles, amongst which was the following,
dated 1st of August, 1782:
“You will be pleased for the future, without any requisitions in
“form, to provide for the different services of the post, in the manner
“least expensive to government, and still equal to the necessities of
“ the different departments.”
In pursuance of these orders, the plaintiff furnished articles to a
considerable amount. But when his bills, at the top of which was
prefixed “Government debtor to George Macbeath, for sundries paid
“ by order of Lieutenant Governor Sinclair,” were sent to the de-
fendant at Quebec, he made objections to several of the articles, as
being unreasonable, and furnished contrary to subsequent instruc-
tions.
Afterwards, on the 2d of July, 1784, Matthews, (the defendant’s
secretary,) wrote the following letter to Messrs. Dobie and Forsyth,
who were agents for the bill holders:
“I am commanded by his Excellency, General Haldimand to ac-
“quaint you, that, in consequence of instructions from the Lords Com-
“missioners of his Majesty’s Treasury, in answer to a representation
“made by him to their Lordships, concerning the bills drawn upon
“him by Lieutenant Governor Sinclair, in the year 1782, which he
“ thought it necessary to refuse payment of, his Excellency, in con-
“ formity with the offer which he made *to the holders of the said bills
“ in the year 1782, is still willing to pay such parts of the charges, for
“ which the said bills were drawn, as at that time appeared upon ex-
“ amination to be reasonable.”
[After stating the amount of goods furnished for the engineer de-
partment to the value of 9,266l. 58. 1%d. which the Governor was
willing to pay, the letter proceeded thus :] }
“His excellency will also pay for all the goods or utensils fur-
“nished for the engineer department, so far as they'shall appear to
“be charged at reasonable prices, to be ascertained by merchants ap-
“ pointed for that purpose by his Excellency and the holders of the
“bills. And he will further pay for the labour, so far as the accounts
“thereof shall appear to be properly vouched. But with regard to
“the charges for the hire of horses and carts, his excellency, from
“the exorbitance of the charge, will have nothing to do therewith,
“leaving nevertheless to the complainants to take such methods to
“procure redress therein, as they shall think proper.
“With respect to the Indian department, his Excellency will pay
“Such part of the articles as compose the accounts, for which the bills
“were drawn, as were not purchased contrary to his orders to
º
CHAP. W.] Of Contracts by Jigents of Government, &c.
249
“ Lieutenant Governor Sinclair, dated 22d of August, 1781, and ex-
“cept also for the articles furnished by Lieutenant Governor Sin-
“ clair himself; which his excellency will not pay, as they were re-
“ ceived from the Indians, in expectation of being well repaid by the
“presents which they afterwards received from the King's Stores.”
[The letter then stated the account of Indian expenses, amounting
to 12,715l. 9s. 10d., and concluded by saying.)
“You will, therefore, see by the foregoing statement, that the sum
“ proposed by his excellency, General Haldimand, to be immediate-
“ly paid, amounts to 21,981. 148. 11; d., New-York currency.”
The bills which Sinclair drew in favour of the plaintiff were drawn
on the defendant as Governor and Commander in Chief.
The plaintiff finding that all these bills drawn by Sinclair, and in-
dorsed by himself, which were to a much greater amount than the
above mentioned sum, would not be accepted by the defendant, re-
ceived a partial payment from him, with a proviso, that it *should not
prejudice his claim for the remainder, to recover which was the ob-
ject of the present action. The plaintiff remained in his post till
1785.
It was acknowledged, at the trial and in court, that all the accounts
had been submitted to a board of officers by the defendant, for them
to examine and report what charges ought to be allowed, and that
the sum adjudged by them to be due, which fell very short of the
plaintiff’s demand, had been paid by the treasury.
Buller, J. after reporting the above facts said, that he had been of
opinion at the trial that the goods in question having been supplied
for the use of government, and the defendant not having personally
undertaken to pay, the plaintiff ought to be nonsuited : that it ap-
peared to him that the plaintiff had acted with the defendant solely
in the character of Commander in Chief, considering him as the
agent of government: that all the letters imported it to be a trans-
action on the part of government ; and that the accounts confirmed
it. But the plaintiff’s counsel appearing for their client, when he
was called, he left the question to the jury, telling them they were
bound to find for the defendantinipoint of law. And upon their ask-
ing him whether, in the event of the defendant's not being liable, any
other person was, he told them that was no part of their considera-
tion; but, being willing to give them any information, he added,
that he was of opinion that if the plaintiff’s demand were just, his
proper remedy was by a petition of right to the Crown. On which
they found a verdict for the defendant.
VoI. I. [32]
% 976
#50
of contracts by Agents of Government, &e. [Parr II.
$ 277
sº
The rule for granting a new trial was moved for on the ground
of misdirection of the judge upon two points.
1st. That the defendant had, by his own conduct, made himself
personally liable, which question should have been left to the jury.
2d. That the plaintiff had no remedy against the Crown by a pe-
tition of right, on the supposition of which the jury had been induced
to give their verdict,
Lord Mansfield, Ch.J. declared that the Court did not feel it nec-
essary for them to give any opinion on the second ground. His Lord-
ship said, “ that great difference had arisen since the “revolution with
respect to the expenditure of the public money. Before that period,
all the public supplies were given to the king, who in his individual
capacity contracted for all expenses. He alone had the disposition
of the public money ; but since that time, the supplies have been ap-
propriated by parliament to particular purposes, and now whoever
advances money for the public service trusts to the faith of parlia-
iment.
That according to the tenor of Lord Somers’s argument in the
banker’s case, though a petition of right would lie, yet it would pro-
bably produce no effect. No benefit was ever derived from it in the
banker’s case ; and parliament was afterwards obliged to provide a
particular fund towards the payment of those debts. Whether, how-
ever, this alteration in the mode of distributing the supplies had made
any difference in the law upon this subject, it was unnecessary to
determine; at any rate, if there were a recovery against the Crown,
application must be made to parliament, and it would come under the
head of supplies for the year.
In showing cause against the rule, the counsel for the defendant al-
lowed that a person, acting in a public situation under government,
might by his own conduct, make himself personally liable for contracts,
for which, from the nature of his office, he would not otherwise be an-
swerable. But the plaintiff should make out a very strong case, in
order to induce the court to believe that such was the agreement. As
if a person, residing at a distance abroad, absolutely refused to treat
with the government, but chose rather to rely upon the personal secu-
rity of the governor, who was upon the spot, and who was willing to
treat upon those conditions. But they contended in this case
that the defendant had acted avowedly as the agent of government,
and did not intend to make himself personally responsible.
In support of the rule, it was contended that the evidence which was
produced at the trial was such as ought to have been left to the jury
guar. V.] of Contracts by Agents of Government, &c.
251
to determine whether the defendant had not made himself personally
liable.
In general, a commanding officer is not answerable for stores and
other articles furnished notoriously for the use of government, but there
is no doubt that he many become so by his own conduct. Here the
plaintiff was directed by the defendant to obey the orders of Lieuten-
ant Governor Sinclair. Every article which he furnished was in obe"
dience to Sinclair's commands ; and Sinclair himself was instructed
to draw bills for the payment of those *articles, not on the government,
or on any official paymaster, which would have afforded a strong pre-
sumption in discharge of the defendant’s liability, but his orders were
to draw on the defendant himself,
The whole question, therefore, should have been left to the jury,
whose conduct proved that they entertained doubts upon it, till they
were informed that the plaintiff had his remedy against the Crown.
Bat if there be no remedy in the form of a petition of right against
the Crown, on account of the appropriation of the supplies since the
revolution, and the public is to be considered as the real debtor, then
there was no other person against whom this demand could so properly
be urged as against the defendant, who represented and acted as os-
tensible agent for the public in this transaction,
The court however, determined that the defendant having contrac,
ted with the plaintiff merely as the agent of government, was not per-
sonally liable. And Lord Mansfield, Ch. J. said, “ The only question
“ before the Court is, whether the defendant be liable or not in this
“ action If he he, the plaintiff must recover: if not, no consideration
“respecting the plaintiff’s remedy against any other party can induce
“the court to make him so. -
“There is no colour to say that he is liable in his character of Com-
* mander in Chief.
“In a late case which was tried before me, where one Savage
“brought an action against Lord North, as first Lord of the Treasury,
“ in order that he might be reimbursed the expenses which he had in-
“ curred in raising a regiment for the service of government, I held
“ that the action did not lie. . -
“So in another case of Lutterloh against Halsey, which was an ac-
“tion brought against the defendant, who was a commissary, for the
“ supply of forage for the army, and by whom the plaintiff had been
“ employed in that service, the commissary was held not liable.
“In the present case it was notorious that the defendant did not
* personally contract ; the plaintiff knew at the time that he furnish-
•ed the stores, that they were for the use of government; and heaf,
“terwards made government debtor in his bills.
# 278
252
Of Contracts by Agents of Government, &c. [PART II.
# 279
(b) 1 East's
Rep. 135.
* 280
“But it has been urged that the defendant made himself liable af.
“ter the debt was contracted. In my opinion there is no ground for
“ such an argument : the evidence does not warrant it.
“*Then it was objected, that whether the defendant had made him-
“self liable or not, was a question which ought to have been left to
“ the jury to decide. But there was no evidence which was proper
$g for their consideration ; for the evidence consisting altogether of writ-
“ten documents and letters, which were not denied, the import of
“ them was matter of law and not of fact.”
•Ashhurst, J. said, “In great questions of policy we cannot argue
“ from the nature of private agreements. But even in these cases the
“question must be, what was the meaning of the parties at the time of
“ entering into the contract P .
“A person acting in the capacity of an agent, may undoubtedly
“contract in such a manner as to make himself personally liable ;
“ and that brings it to the true question here, namely, whether, from
“ary thing that passed between the parties at the time, it was under-
“ stood by them that the plaintiff was to rely upon the personal secu-
“rity of the defendant P But nothing appears from the evidence in
“this case to warrant such a conclusion. Government was made debt-
“ or ; and it is evident that the plaintifflooked to them for payment:
“for he first made application to the treasury, and his demand against
“the defendant was only an after thought, when he found he could
“not obtain the money in any other way. Then it seems to me, that
“ there is nothing in this transaction to fix the defendant, or to show
“that the plaintiff considered him as his debtor at the time that the
“credit was given.
* Great inconveniences would result from considering a Governor
“ or commander as personally responsible in such cases as the present,
“For no man would accept of any office of trust under government
“ upon such conditions. And indeed it has frequently been determin-
‘ed that no individual is answerable for any engagements which he
• enters into on their behalf. -
* There is no doubt but the Crown will do ample justice to the
“ plaintiff’s demands, if they be well founded.” ----
So, a captain of a troop is not personally liable for meat or forage
supplied for his troop during his absence on duty, though ordered by
his clerk, unless he actually receives the subsistence money from
government, or makes an absolute promise to be answerable per-
sonally.
Thus, in the case of Myrtle v. Beaver,(b) which was an action of
assumpsit for goods sold and delivered. The defendant was major
*and the captain of a troop in the Hants regiment of fencible cav-
CHAP. V.] Of Contracts by Agents of Government, &c. 253
alry. The plaintiff was a butcher of Brighton; where the troop
was quartered. The action was brought to recover the value of meat
furnished for the use of the troop between the 25th of January and
the 22d of February, 1800. Previous to the first mentioned period,
the defendant had the command of his own troop, at Brighton and
had employed a serjeant in the troop, of the name of Bedford, to
act as his clerk in providing for the subsistence of the troop,
which it is the duty of the captain to do; and, under the defend-
ant's orders, Bedford had from time to time given orders for and su-
perintended the delivery of the meat; and while the defendant re-
mained with the troop, he had himself regularly paid the plaintiff his
bill monthly ; and the account was admitted to be settled up to the
24th of January. At that period the defendant was detached with a
small party to command at Arundel, about twenty miles off, the
greatest part of the regiment remaining at Brighton, under the com-
mand of the colonel. On the defendant’s departure, the actual com-
mand of his troop devolved upon Mr. Hunt, the first lieutenant, though
they were still subject to the defendant’s military orders, and all mil-
itary reports and returns of the troop were made first to him, and from
him to head-quarters. After the defendant’s departure from Bright-
on, serjeant Bedford received his orders from lieutenant Hunt for
the subsistence of the men, and received money from him for
such purposes, and was employed by him, as he had before been by the
defendant when he was present, to give orders for and superintend the
delivery of the meat, which he did in the same manner as before ;
but it did not appear that such change of his authority was made known
to the plaintiff, who continued to supply meat as before. On the 20th
of February, and before the usual time for settling the plaintiff’s bill,
lieutenant Hunt, who, besides his command in the troop, was also pay-
master of the regiment, absconded, without settling any of his regi-
mental accounts, and leaving this demand, among others, unsatisfied.
It appeared to be the course of the service, that a certain allowance is
made by government to the captain of every troop for the subsistence
of the men upon which he derives an allowed profit to himself, and to
which he was still entitled during his absence on the detached com-
mand at Arundel. This subsistence money is issued every month
from the agent of the regiment to the paymaster in advance, by whom
it is paid over to the captains of troops, who draw upon the paymaster
for it, at their pleasure. The agent of the regiment regulates the a-
• mount *of the monthly issue to the paymaster by the muster-rolls, and * 281
the bills which have before been sent in, and these are signed by the
captain of the troop, while he is in the actual command ; but during
the period in question, in which the plaintiff's bill accrued, returns of
this nature were signed by Hunt, and sent in to the pay-office : and
this allowance was, in the course of the service, received by Hunt, but
was not in fact paid over by him to the defendant during the period
$54
of Contracts by .agents of Government, &c. EPART II,
# 282
(c) 1 East's
Rep. 579.
that he was in the actual command of the troop. The paymaster is
recommended by the colonel of the regiment, and approved by the
King, to whom he gives a bond to perform the duties of his office, and
account faithfully, and to repay the surplus, if any, in his hands. For
some days, at the latter end of January and beginning of February,
the colonel was absent from the regiment, and during that time the
principal command devolved upon the defendant, as major and next
in seniority, who came over to and resided at Brighton, but Hunt still
continued to have the actual command of the defendant’s troop.
The court said, “It is an undisputed fact, that the defendant was
“ not in the actual command of his troop during any period of the
“ time when this demand accrued; but the command had devolved
“upon another officer who was next in seniority. The defendant nei.
“ther gave the orders for the provisions, nor had he any authority
“ to do so. It is true that the serjeant acted at first by the defend-
“...ant’s orders; but he is not to be considered as the agent of a private
“individual; it was plain that he acted as agent for whatever offices
“happened to have the command of the troop. The defendant has ne-
• ver received any money from government for this purpose ; but the
“ money was received by Hunt, who was next in command, as well
“ as paymaster, and by whom it ought to have been paid over. So
“ that on the whole there appears to be no ground for fixing the de-
* fendant with a liability in this case.”
So, the captain of a troop for which forage was furnished by the or-
ders of a clerk appointed by such captain, is not liable in an action
for money had and received for such forage, though present with the
troop at the time; it not appearing that he had received any money
for this purpose from the paymaster, to whom it is issued by govern-
ment, and upon whom the captain is entitled to *draw for a certain
sum, regulated by the returns of the preceding month.
Thus, in the case of Rice v. Chute,(c) which was a similar action to
the last; and the plaintiff’s demand was for forage supplied by him
at different times to the Hampshire fencible cavalry at Brighton, from
the 15th of October, 1799, to May, 1800; and the only question was,
whether the defendant were liable for it? Reed, the quarter-master
of the troop, said, that he was appointed by the defendant to be clerk
of the troop, at the salary of 10l. a year. He proved the amount of
the oats delivered by the plaintiff to the use of the troop, and that
the oats were delivered according to the orders of the defendant, as
commanding officer of the troop, the same having been purchased by
the witness by the express direction of the defendant; that Hunt
was the paymaster of the troop for the last two years and a half;
and that he, the witness, had paid the plaintiffseveral sums, by bills
on the paymaster. The plaintiff received orders to draw bills on
CHAP. V.] Of Contracts by Agents of Government, &c.
255
Hunt, and was paid at different times by him. The plaintiff and oth-
ers who supplied the troop were to be paid monthly, but Hunt had not
paid at all since October, 1799. The drafts were of this sort: “ 27th
of January, 1800. Two “months after date pay John Rice, or order,
“ 316/. value in oats by Alexander Reed ;” addressed to W. Hunt,
Esq. and accepted by him. In the latter end of October, 1799, the
defendant was recruiting at Basingstoke, and came to Brighton on the
8th of November following. The defendant was in Brighton for
three or four weeks, and was detached to Arundel in the December of
the same year. About the 24th January, the defendant returned, and
staid at Brighton till his regiment was disbanded. Hunt was ap-
pointed paymaster in 1797, by the commander in chief. He had been
slack in his payments for some time, and at last absconded ; which
was the occasion ef the present suit. The witness had received or-
ders from the defendant to draw bills on the paymaster, and on his
agent too, which were paid. Evidence was also given of bills drawn by
the defendant on the paymaster, in favour of various persons who had
furnished articles for the troop. At Brighton the clerk drew bills as us-
ual for defendant, and received money for a long time after the
new regulation (in July, 1797, as to the appointment of the paymasters)
both from defendant and from the paymaster. The clerk applied “twice
by letter to the defendant,at Arundeland Brighton, for money for the use
of the troop. He also proved that Hunt, the paymaster, was indebted to
the defendantin 400l.; and the regiment was indebted to Huntin 700l.;
that Hunt’s credit was so bad that no person would have trusted him for
20l. Before the new regulation, the colonel appointed the paymaster,
and the officers were liable for his deficiencies. By the new regu-
lations the Commander in Chief appoints the paymaster, and the
field officers and captains are no longer responsible. However, the
same practice continued after as existed before this regulation, name-
ly, that the captains of each troop drew on the paymaster bills for
the pay, forage, and quarters of the troop. The two sureties for
the paymaster, Hunt, were Colonel Dacre and Colonel Everitt-
For the defendant it was proved, that on the 8th October, the defend-
ant was recruiting at Basingstoke, and remained there till the 3d of
November following. He was at Brighton on the 10th of Novem-
ber, and on the 24th of the same month ; that from 1st of December
to the 19th of January he was with a detachment at Arundel. He
was there likewise on the 28th of January, and staid till 20 of Feb-
ruary, and then had leave of absence. He was at Brighton on the
1st of March ; that on the 20th of February, Hunt absconded ; that
the lieutenant next in command, in the absence of the captain of the
troop, signs the accounts and payments, and the pay list containing
the extra food to the horses. On that return the paymaster issues
the Baoney. The pay list is the voucher of the last issue. There was
%. 283
256
of Contracts by Agents of Government, &c. [RART II.
# 284
(d) East's
Rep. 583 m.
a committee of paymasters, whereof the defendant was one, after the
absconding of Hunt, who regulated the accounts.
The counsel for the plaintiff, admitting that there was no express
undertaking for the payment, contended that he was entitled to re-
cover on the count for money had and received; relying on the state
of the paymaster's account, as proved by Reed. The learned Judge,
however, directed the jury to find a verdict for the defendant, but they
found a verdict for the plaintiff to the extent of his demand.
But the Court of King’s Bench afterwards set aside this verdict,
and granted a new trial. And Lord Kenyon, Ch. J. said, “I cannot
“conceive how the captain of a troop can be personally responsible
“for the forage furnished to the troop, whether he have received any
“money for that purpose or not. It is admitted the goods were not
“furnished upon his express undertaking. They were ordered by the
“ clerk, who receives his orders from whatever *officer happens to be
“ in command at the time. But it is notorious to all parties that he
“ does not contract as an individual, but on the behalf of government:
“ and government, it appears, provides money for this very purpose,
“ which is issued from time to time to the paymaster of the regiment.
“The parties who furnish the goods know that the money is not to
“ come out of the pocket of the captain of the troop. Then the pay-
“master not having paid this money over to the defendant, how can
“we say that the money has been had and received by him to the plain-
“ tiff’s use, when no money whatever has been received by the de-
“fendant. The consequence is, there must be a new trial.”
But the reporter observes, that there was another case of Rice v.
Everitt,(d) determined at the same time, which was an action brought
by the same plaintiff against the colonel of the same regiment, for
forage furnished to his own particular troop. The evidence was in
general the same as in the other case : but here it appeared that
though the defendant had not drawn upon the paymaster of the regi-
ment for the particular sum in demand, and so he could not be said to
have received that sum to the plaintiff’s use, yet the defendant being
indebted to the paymaster on the balance of his own private account
with him to the amount of two thirds of the plaintiff’s demand, and
being also surety for the paymaster to government, and the paymas-
ter having absconded in a state of insolvency, the court refused to set
aside a verdict recovered by the plaintiff for the amount of his debt, as
the defendant was liable, in some shape or other, for the paymaster’s
default, and justice had upon the whole been done by the verdict.
[If an agent of the United States in his known official capacity,
employs a man to work for government, he is not personally liable.
12 Johns. Rep. 444. But it seems, it should appear that the agent
contracted in his official character, and on account of government,
Chap. V.] of Contracts by Agents of Government, &c.
257
and that the person doing the service gave credit, and intended to
look to the government alone for compensation. 3 Caines’ Rep. 70.
It is incumbent on the public agent to show that in making the
contract, he expressly, or ostensibly, acted as a public agent, other-
wise it will be considered a private contract. Swift v. Hopkins, 13
Johns. Rep. 313.]
VoI. I. [33]
º Puffen-
orf, lib. 5.
cap. 8.
(b) Per Ey-
re, Ch. J. in
Waugh v.
Carver, 2 H.
Bl. 246.
(c) Per De
Grey, Ch. J.
2 Bl. Rep.
1000.
* 286
CHAPTER VI.
OF CONTRACTS BY PARTNERS.
PARTNERSHIP is thus defined ; contractus societatis est,
quo duo pluresve inter sepecuniam, res, aut operas conferunt, eo fine,
ut quod inae redit lucri inter singulos pro rata dividatur.(a)
This definition of a partnership is said(b) to be good as between
the parties themselves, but not with respect to the world at large;
for in this view of a partnership, the question is generally, not be-
tween the parties whether money, goods, or labour were contributed,
and in what proportion, but simply whether there be an agreement
for a participation of profits 2 And upon this question it is observ-
ed,(c) that every man who has a share of the profits of a trade, ought
also to bear his share of the loss ; and if any one takes part of the
profits, he takes a part of that fund, on which the creditor of the tra-
der relies for his payment. It is intended to consider the subject of
this chapter in the following order:
1. What Agreement or Stipulation will constitute a Partnership, and
thereby render all the Persons jointly interested therein liable
to third Persons.
2. What Contracts, &c. made by one Partner shallbind himself and his
Co-partner.
3. Of Contracts with a Partnership Firm after a Change or Dissolu-
tion and of the Notice thereof necessary to be given.
4. How Partners must sue and be sued.
5. Of the Remedy by partners upon Contracts, &c. Inter se.
*C*º-
*1. What Agreement or Stipulation will constitute a Partnership and
thereby render all the Persons jointly interested therein liable to
third Persons.
In order to constitute a partnership, so as to make a person liable
as a partner, there must be some agreement between him and the os-
CHAP. VI.] Of Contracts by Partners.
259
tensible person to share in the profits of a trade, or he must have
permitted that other to use his credit, and to hold him out as one joint-
ly answerable with himself.
Thus, in the case of Waugh v. Carver and others,(d) which was @* H. Bl,
an action of assumpsit for goods sold and delivered, and for work
and labour done, &c. A verdict was found for plaintiff, subject
to the opinion of the court, on a case which stated, That on the 24th
February, 1796, articles of agreement were duly executed between
Erasmus Carver and William Carver, (two of the defendants) of the
one part, and Archibald Giesler, (the other defendant) of the oth-
er part, reciting, “Whereas the said Archibald Giesler, some time
“since, received appointments from several of the principal ship-
“owners, merchants and insurers in Holland, and other places, to act
“ as their agent in the several counties of Hampshire, Devonshire,
“ Dorsetshire, and Cornwall ; and whereas the said Erasmus Car-
“ver and William Carver, have, for a great number of years, been
“established at Gosport in the agency line, under the firm of Eras-
“mus Carver and Son, and hold sundry appointments as consuls
“ and agents for the Danish and other foreign nations, and also have
“very extensive connections in Holland, and other parts of Europe;
“ and whereas it is deemed for their mutual interest, and the advan-
“tage of their friends, that the said ºffrchibald Giesler should remove
“from Plymouth, and establish himself at Cowes in the Isle of
“Wight; and the said Erasmus Carver and William Carver and
“ the said Archibald Giesler have agreed, that each should allow to
“the other certain portions of each others commissions and profits, in
“manner hereafter more particularly mentioned and expressed ;
“now therefore this agreement witnesseth, and the said flrchibald
“ Giesler doth hereby for himself, his executors and “administrators,
“covenant, promise and agree to and with the said Erasmus Carver
“ and William Carver, their executors and assigns in manner following
“(that is to say) that the said Archibald Giesler shall and will, when
“required so to do, by the said Erasmus Carver and William Carver,
“remove from Plymouth, and establish himself at Cowes afore-
“ said, for the purpose of carrying on a house there in the agency
* line, on his account ; but in consequence of the assistance and re-
“commendations which the said Erasmus Carver and William Car-
“ver have agreed to render in support of the said house at Cowes,
“the said ºffrchibald Giesler doth covenant, promise and agree, to and
“ with the said Erasmus Carver and William Carver, that the said
“...Archibald Giesler, his executors, administrators and assigns, shall
“and will well and truly pay or allow, or cause to be paid or allow-
“ed to the said Erasmus Carver and William Carver, their executors,
% £87
260
Of Contracts by Partners. [PART II.
* 288
“administrators, or assigns, one full moiety or half part of the com-
“mission agency, to be received on all such ships or vessels, as
“may arrive or put into the port of Cowes, or remain in the road to
“the westward thereof, within the Needles, of which the said flrchi-
* bald Giesler may procure the address, and likewise one full moiety
“ or half part of the discount on the bills of the several tradesmen em-
“ployed in the repairs efsuch ships or vessels. And the said ºffrch-
“ibald Giesler doth also covenant, promise, and agree, to and with
“ the said Erasmus Carver and William Carver, that they the said
“Erasmus Carver and William Carver, shall be at full liberty to en-
“gage warehouses at Cowes aforesaid, on such terms and in such
“manner, as they may think proper, in which the said ºffrchibald
“Giesler shall not upon any grounds or pretence whatsoever, either
“directly or indirectly interfere. And the said Erasmus Carver
“ and William Carver, for the considerations herein before mention-
“ed, do hereby covenant, promise, and agree, to and with the said
“..?rchibald Giesler, his executors and administrators, that they the
“ said Erasmus Carver and William Carver shall and will well and
“truly, pay or allow, or cause to be paid or allowed, to the said Arch-
“ibald Giesler, his eacecutors, administrators or assigns, three-fifth
“parts or shares of the commission or agency to be received by the said
“Erasmus Carver and William, on account of all ships and vessels,
“the commanders whereof may in consequence of the endeavours, in-
“terference, or influence of the said Archibald Giesler proceed from
“Cowes to Portsmouth, and there put themselves under the direction
“ of the said Erasmus Carver and William Carver, in manner herein
“*beforementioned,and likewise one and one-halfper cent. on the amount
“of the bills of the several tradesmen employed in the repairs of such
“ships or vessels, together with one-fourth part of such sum or sums as
“may be charged or brought into account for warehouse rent, on
“ the cargoes of the ships or vessels respectively; and also one-sixth
“part of such sum or sums as may be charged or brought into ac-
“ count, for warehouse rent on the cargoes of ships or vessels, as
“may be landed at Cowes aforesaid. And also that they, the said
“Erasmus Carver and William Carver, their eacecutors, administra-
“tors, or assigns, shall and will well and truly, pay or allow, or cause
“to be paid and allowed, unto the said Archibald Giesler, his eacecu-
“tors, administrators, or assigns, one-fourth part or share of the com-
“mission or agency to be received by the said Erasmus Carver and
“William Carver, on account of all such ships or vessels that may ar-
“rive or put into the port of Portsmouth, or remain in the limits there-
“of, wmder the care and direction of the said Erasmus Carver and Wil-
“liam Carver; and likewise one-half per cent, on the amount of the
“bills of the several tradesmen employed in the repairs of such ships
* or vessels.
€HAP. VI.] Of Contracts by Partners.
261
“And it is hereby likewise covenanted, declared, and agreed, by
“ and between the said Erasmus Carver and William Carver, and the
“ said Archibald Giesler, that each party shall separately run the risk
“of and sustain all such loss and losses, as may happen on the advance
“ of moneys, in respect of any ships or vessels, under the immediate
“care of either of the said parties respectively; It being the true in-
“tent and meaning of these presents, and of the parties hereunto, that
“ neither of them the said Erasmus Carver and William Carver and Jºr-
“ chibald Giesler shall at any time or times during the continuance of this
“ agreement, be in anywise injured, prejudiced, or affected, by any loss
“ or losses that may happen to the other of them, or that either of them
“shall in any degree be answerable or accountable, for the acts, deeds,
“ or receipts, of the other of them, but that each of them, the said Eras-
“mus Carver and William Carver, and Archibald Giesler, shall in
“ his own person, and with his own goods and effects, respectively, be an-
“swerable and accountable for his own losses, acts, deeds, and receipt 3.
“Provided always, nevertheless, and it is hereby declared and
“agreed to be the true intent and meaning of these presents, and the
“ parties hereunto, that the foregoing articles shall not, nor shall be
“construed to bear reference to their particular, or separate mer-
“cantile concerns or connections.” -
*In pursuance of these articles, Giesler removed from Plymouth
and settled at Cowes, where he carried on the business of a ship-agent,
in his own name, and contracted for the goods, &c. which were the
subject of the action. And the question was, whether the defendants
were partners on the true construction of the articles
The case was argued twice at the bar; and the court, after taking
time to consider of their judgment, determined that the defendants
were partners: and consequently jointly liable for the debt in ques-
tion.
Lord Chief Justice Eyre, said, “The discussion of this case has
“enabled me to make up my mind, and removed the only difficulty I
“felt, which was, whether by construing this to be a partnership, we
“should not determine, that if there was an annuity granted out of a
“banking house, to the widow, for instance, of a deceased partner, it
“would make her liable to the debts of the house, and involve her in a
“bankruptcy. But I think this case will not lead to that consequence.
“The definition of a partnership, cited from Puffendorf, is good,
“ as between the parties themselves, but not with respect to the world
“at large. If the question were between 4. and B, whether they
“were partners or not, it would be very well to inquire whether they
“had contributed, and in what proportions, stock or labour, and on
“what agreement they were to divide the profits of that contribution.
“But in all these cases a very different question arises, in which that
“definition is of little service. The question is generally, not be.
* 289
262
Of Contracts by Partners. [PART II.
“tween the parties, as to what shares they shall divide, but respect-
“ing creditors, claiming a satisfaction out of the funds of a particular
“house who shall be deemed liable in regard to these funds Now a
“case may be stated, in which itis the clear sense of the parties, to the
“contract, that they shall not be partners; that A. is to contribute
“neither labour nor money, and, to go still farther, not to receive any
“profits. But if he will lend his name as a partner, he becomes as
“against all the rest of the world, a partner, not upon the ground of
“the real transaction between them, but upon principles of gene-
“ral policy, to prevent the frauds to which creditors would be liable,
(e) Post, 291.
“if they were to suppose that they lent their money upon the appa-
“rent credit of three or four persons, when in fact they lent it only
“to two of them, to whom, without the others, they would have lent
“nothing. The argument gone *into, however proper for the discus-
“sion of the question, is irrelevant to a great part of the case. Whe-
“ther these persons were to interfere more or less, with their advice
“ and directions, and many small parts of the agreement, I lay en-
“tirely out of the case; because it is plain upon the construction of
“the agreement, if it be construed only between the Carvers and Gies-
“ler, that they were not, nor ever meant to be partners. They meant
“each house to carry on trade without risk of each other, and to be
“at their own loss. Though there was a certain degree of controul
“ at one house, it was without an idea that either was to be involved
“in the consequences of the failure of the other, and without under-
“standing themselves responsible for any circumstances that might
“happen to the loss of either. That was the agreement between
“ themselves. But the question is, whether they have not by parts
“of their agreement, constituted themselves partners in respect to
“other persons. The case, therefore is reduced to the single point,
“whether the Carvers did not entitle themselves, and did not mean
“to take a moiety of the profits of Giesler’s house, generally and in-
“definitely as they should arise, at certain times agreed upon for the
“ settlement of their accounts. That they have so done, is clear upon
“the face of the agreement: and upon the authority of Grace v,
“Smith,(e) he who takes a moiety of all the profits indefinitely, shall,
“by operation of law, be made liable to losses, if losses arise, upon
“the principle that by taking a part of the profits, he takes from the
“ creditors a part of that fund which is the proper security to them
“for the payment of their debts. That was the foundation of the de-
“cision in Grace v. Smith, and I think it stands upon the fair ground
“of reason. I cannot agree that this was a mere agency, in the sense con-
“tended for on the part of the defendants, for there was a risk of pro-
“fit and loss: a ship-agent employs tradesmen to furnish necessaries
“for the ship, he contracts with them, and is liable to them, he also
“makes out their bills in such a way as to determine the charge of
“ commission to the ship owners. With respect to the commission,
CHAP. VI.] Of Contracts by Partners.
263
“indeed, he may be considered as a mere agent, but as to the agency
“itself, he is as much a trader as any other man, and there is as
“much risk of profit and loss, to the person with whom he contracts,
“in the transactions with him, as with any other trader. It is true
“he will gain nothing but his discount, but that is a profit in the trade,
“and there may be losses to him, as well as to the owners. If, there-
“fore, the principle be true, that he who takes the “general profits of
“a partnership must of necessity be made liable to the losses, in or-
“der that he may stand in a just situation, with regard to the credi-
“tors of the house, then this is a case clear of all difficulty. For
“ though with respect to each other, these persons were not to be con-
“ sidered as partners, yet they have made themselves such, with re-
“gard to their transactions with the rest of the world. I am, there-
“fore, of opinion, that there ought to be judgment for the plaintiff.”
[So, in Cheap et al. v. Cramond, 4 Barn. & Ald. 663, which was the
case of a merchant in London recommending consignments to a mer-
chant abroad, and it was agreed that the commission on all sales of
goods recommended by one house to the other should be equally di-
vided, without allowing any deduction for expenses: held that this
constituted a partnership between the parties quoad hoc. The princi-
ple being, that where two houses agree that each shall share with the
other the money received in a certain part of the business, they are,
as to such part, partners with regard to those who deal with them
therein, though they may not be partners inter se.]
So, in the case of Blowam and Fourdrinier v. Pell and Brooke,(f)
where it appeared there was a partnership for seven years between
Brooke and Pell; but at the end of one year agreed to be dissolved,
but no express dissolution was had.—The agreement recited, that
Brooke being desirous to have the profits of the trade to himself, and
Pell being desirous to relinquish his right to the trade and profits, it
was agreed, that Brooke should give Pell a bond for 2,485l. which
Pell had brought into the trade, with interest at five per cent. which
was accordingly done. And it was farther agreed, that Brooke
should pay to Pell 200l. per annum for six years, if Brooke so long liv-
ed, as in lieu of the profits of the trade ; and Brooke covenanted, that
Pell should have free liberty to inspect his books. Brooke became
a bankrupt before any thing was paid to Pell. And this action be-
ing brought for a debt incurred by Brooke in the course of trade, Lord
Mansfield held that Pell was a secret partner: He said, “This was
“a device to make more than legal interest of money, and if it was
“not a partnership, it was a crime. And it shall not lie in the de-
“fendant Pell’s mouth to say, it is usury, and not a partnership.”
%. 281
(f) Sittings
in the King’s
Bench, 7
Mar. 1775.
coram Lord
JMansfield,
cited in 2 Bl,
Rep. 999.
264
(ºf Contracts by Partners. [PART. Iſ.
(g) 2 Blac.
Rep. 998.
* 292
\
But where a partner (who retires from the concern) lends money
to his co-partner, upon an agreement to allow legal interest, with an
additional annuity for a certain term of years; this is not a continu-
ance of the partnership, even with respect to third persons, provided
there has been public notice of the dissolutions.
Thus, in the case of Grace v. Smith,(g) which was an action of
assumpsit for goods sold and delivered. On the trial a verdict was
found for the defendant : and upon motion to set aside this verdict,
De Grey, Ch. J. reported, that this was an action brought against
Smith alone, as a secret partner with one Robinson, to whom *the
goods were delivered, and who became bankrupt in 1770. That on
the 30th of March, 1767, Smith and Robinson entered into partner-
ship for seven years, but in the November afterwards, some disputes
arising, they agreed to dissolve the partnership. The articles were
not cancelled ; but the dissolution was open and notorious, and was
notified to the public on the 17th of November, 1767. The terms of
the dissolution were, that all the stock in trade, and debts due to the
partnership should be carried to the account of Robinson only. That
Smith was to have back 5,200l., which he brought into the trade, and
1,000l. for the profits then accrued, since the commencement of the
partnership : That Smith was to lend Robinson 4000l., part of this
5,200l., or let it remain in his hands for seven years, at five per cent.
interest, and an annuity of 300l. per annum, for the same seven years:
For all which Robinson gave bond to Smith. In June, 1768, Robin-
son advanced to Smith 600l. for two years’ payment of the annuity
and other sums by way of interest, and gratuities, and other large
sums at different times, to enable him to pay the partnership debts,
Smith having agreed to receive all that was due to the partnership,
and to pay its debts, but at the hazard of Robinson. That on the 1st
of ſlugust, 1768, the demands of Smith were all liquidated and con-
solidated into one, viz. 5,200l. due to him on the dissolution of the
partnership, 1,500l. for the remaining five years of the annuity, and
300l. for Smith’s share of a ship : in all 7,000l, for which Robinson
gave a bond to Smith. That on the 22d of August, 1769, an assign-
ment was made of all Robinson’s effects to secure the balance then
due to Smith, which was stated to be 10,000l. Soon after the com-
mission was awarded.
The Court of Common Pleas held, that these facts did not amount
to a partnership. De Grey, Ch. J. said, “The only question is, what
“ constitutes a secret partner P Every man who has a share of the
“ profits of a trade, ought also to bear his share of the loss. And if
“any one takes part of the profit, he takes a part of that fund on which
“ the creditor of the trader relies for his payment. If any one advan-
“ces or lends money to a trader, it is only lent on his general per-
“ sonal security. It is no specific lien upon the profits of the trade,
CHAP. VI.] Of Contracts by Partners. . * 265
“ and yet the lender is generally interested in those profits; he re-
“ lies on them for payment. And there is no difference whether
“ that money be lent de novo or left behind in trade by one of the part-
“ners who retires. And, whether the terms “of that loan be kind or # 293
“harsh, makes also no manner of difference. I think the true crite-
“rien is, to inquire whether Smith agreed to share the profits of the
“trade with Robinson, or whether he only relied on those profits, as a
“fund of payment: A distinction, not more nice than usually occurs
“ in questions of trade or usury. The jury have said this is not pay-
“able out of the profits; and I think there is no foundation for grant-
“ing a new trial.” -
Blackstone, J. said, “I think the true criterion, when money is
“advanced to a trader, is to consider whether the profit or premium
“is certain and defined, or casual, indefinite, and depending on the
“ accidents of trade. In the former case it is a loan, (whether usuri-
“ous or not, is not material to the present question) in the latter a
“partnership. The hazard of loss and profit is not equal and recip-
“rocal, if the lender can receive only a limited sum for the profits of
“his loan, and yet is made liable to all the losses, and all the debts con-
“ tracted in the trade, to any amount.”
So, a partner whose name does not appear in the firm, nor is pub-
licly known to be a partner, is only liable for goods furnished during
the time he is actually a partner, and receiving; the emoluments
and profits of the business.(h) . (h) Evans v.
But if he has been known publicly to be a partner, and no notice is Pºlº,
sp. tiep.
given of the dissolution, in that case he will be liable for debts after 89.
he has actually withdrawn himself from the concern.(i) * * * r z º. * * ,
. (i) Wide post,
So, if a person suffers his name to be used in a business, and holds
himself out as a partner, though in point of fact no partnership ex-
ists, he is liable to a creditor who contracts with the firm.
Thus, in the case of Young v. Jiatell and another,(k) which was an () at guig.
action to recover 600l. and upwards, for coals sold and delivered by hall Sittings
the plaintiff, a coal merchant. An agreement between the defend- . #...
ants was given in evidence, stating that the defendant Mrs. Matell Lord Mans.
had lately carried on the coal trade, and that the other defendant did # *.
the same ; that Mrs. Aatell was to bring what customers she could, -
into the business, and that the other was to pay her an annuity, and
also 2s. for every chaldron that should be sold to those ºpersons * 294
who had been her customers, or were of her recommending. The plain-
tiff also proved, that bills were made out for goods sold to her cus-
tomers, in their joint names; and the question was whether Mrs. Ma-
tell was liable for this debt P Lord Mansfield said, “He should have
“rather thought on the agreement only, that Mrs. Aztell would be
Wol. I, [34]
266
* ºf Contracts by Partners. [PART II.
(l) 1 Esp.
Rep. 29.
“liable, not on account of the annuity, but the other payment, as that
“it would be increased in proportion as she increased the business.
“However, as she has suffered her name to be used in the business,
“and held herself out as a partner, she was certainly liable, though
“ the plaintiff did not, at the time of dealing, know that she was a
“partner, or that her name was used.” And the jury accordingly
found a verdict for the plaintiff.
[Where the executors of a deceased partner continued his share in
trade for the benefit of an infant daughter; held they were liable for
the debts of the firm, although no alteration was made in the firm
and took no part of the profits themselves. 1 Maule & Selw. 412.
The executors by embarking the property de novo in trade instead
of disposing of it under the will and distributing it as assets, became
the legal proprietors in respect to every thing belonging to the trade,
the infant is not privy, nor bound by any contracts then made, but
may renounce when she comes of age, as dam nosa haereditas.
So, a man may be a partner as to third persons, merely by len-
ding his name, without participation in profits, and though con-
tracting that he shall suffer no loss. 18 Wes.jun. 301. 3 Wes. & Beam.
125.]
A partnership may exist in a particular concern without constitu-
ting a general partnership, unless a representation is made of a gene-
wal partnership.
Thus, in the case of De Berkom v. Smith and Lewis,(l) which was
an action of assumpsit to recover the value of a quantity of foreign
lace against the defendants, charging them as partners. It was ad-
mitted that Smith, one of the defendants, was liable, but the other de-
fendant, Lewis, denied that he was a partner. This was the only
question in the case. The evidence on the part of the plaintiff was,
that he was a foreigner living at Lisle in Flanders ; that having been
applied to by the defendants for a quantity of lace on credit, that be-
fore he would furnish it, he wrote over to his correspondent in Lon-
don, to inquire concerning their circumstances and situation ; that his
correspondent had inquired from a Mr. Botham, a merchant in Lon-
don, who informed him that they were in partnership in trade, which
information the correspondent communicated to the plaintiff, who in
consequence thereof gave them the goods on the terms they asked.
Mr. Botham’s clerk was called, and proved, that the only connec-
tion in trade between Mr. Botham and the defendants, was in dis-
counting bills, which Mr. Botham had been in the habit of doing for
Smith, one of the defendants, but that on discounting a bill at one
time for Smith, he had introduced Lewis to him as his partner.
CHAP. VI.] Of Contracts by Partners. 267
*Lord Kenyon, Ch. J. upon this evidence, ruled, “That it was not * 295
“sufficient to charge Lewis as a partner.” His Lordship said,
“That persons might be partners in a particular concern or business,
“but that, notwithstanding if they did not appear to the world as
“partners, that it should not be sufficient to constitute a general part-
: nership, and make them liable in other cases not connected with
‘such particular business. That the circumstance in evidence of
“the introduction of Lewis to Mr. Botham should be taken secundum
“subjectam materiam, that is, as applying to the transaction in which
“Smith was concerned with Mr. Botham, the discounting of bills, to
“which transaction only it should be confined, and that he was there-
“fore of opinion, that without further evidence a general partner-
“ship could not be established, in order to charge Lewis the other de-
“fendant in this action.”
However, it afterwards appearing in evidence, that in fact Lewis
had represented himself to the plaintiff as partner in trade with Smiths
his Lordship in his charge to the jury, added, “That though in point
“ of fact parties are not partners in trade, yet if one so represents
“ himself, and by that means gets credit for goods for the other, that
“both shall be liable.” The plaintiff upon this evidence obtained a
verdict.
In order, however, to constitute a partnership in a particular pur-
chase there must either be a joint undertaking to pay, or an agreement
to share in the profit and loss.
Thus in the case of Hoore and others v. Dawes and another,(m) (m) Doug,
which was an action for money lent and advanced. The facts of the 371.
case appeared to be as follow: The plaintiffs, who were bankers, had
advanced a sum of money on certain tea-warrants of the East-India
Company to Contencin, abroker,who deposited the tea-warrants with the
plaintiffs as a security, and also gave them his note of hand for the sum
advanced. He had been employed by a number of persons, of whom
the defendants were two, to purchase a lot of tea, at the East-India
Company's sale, of which they, (together with himself) were to have
separate shares, the lots being, in general, too large for any one dealer.
The practice at such sales is, for the Company to give a warrantor war-
rants to the broker or purchaser, for the delivery of the quantity of *tea
purchased, on payment being made. Atthe time of the sale 25l, percent.
is advanced, and is forfeited unless the whole is paid on the third,
which is the last, day of payment. If paid sooner, allowance is made
for prompt payment. The warrants are often pledged, and money
raised upon them ; generally considerably less than the supposed va-
lue of the tea. It happened, however, in this instance, between the
/ time of the deposit of the warrants with the plaintiffs, and the time
* 296
*
268
Of €ontracts by Partners. [PART II.
97
when the payment was to be made at the India House, that the value
of the tea sunk so much as to be considerably under the amount of the
sum advanced. The broker, in the mean time, had become abankrupt,
and had informed the plaintiffs who his employers were, all of whom,
except the defendants, were since either dead, or become bankrupts.
The shares of the defendants were to be two-sixteenths of the whole
lot. The ground of the action was, that all the employers of the bro"
ker were to be considered as partners, and jointly and severally liable
for the whole. The defendants owed nothing upon their own two-six-
teenths. There was not any joint concern in the re-disposal of the tea.
The defendant produced several bankers and brokers, (of whom Conten-
cin was one) who said, they had had frequent transactions of this sort,
(it being a very usual speculation) and they always understood, that
the only security was the pledge, and the personal security of the bro-
ker, unless where the principals were inquired after, and declared,
which was very rarely done. That as the practice was to advance
considerably under the supposed value of the tea, and it was also
usual to stipulate, that, if the money was not repaid within a certain
time, the lender might sell, the warrant was of itself a general and
sufficient security. Contencin said, that tea-warrants were considered
as cash, and passed by delivery. On the other side in answer to this
evidence, (the plaintiffs having, at first, rested their case on the fact,
that there were persons behind the curtain, for whom the broker acted.)
two witnesses were called: one of them, one Cartony, a tea dealer,
swore, that a broker had once borrowed some money for him on tea-
warrants, from the plaintiffs, and that the value of the tea having fallen
under the sum advanced, and the broker having failed, he had paid the
difference, considering himself as liable.—The other was a person
who had also dealt in tea and in loans of this sort, and he swore, that
his idea had always been that the persons behind the curtain were lia-
ble ; but upon cross examination, he said, he never knew any loss hap-
pen, nor any demand actually made on the broker’s employers.
*The Court of King’s Bench, upon these facts being stated, were
of opinion that they did not constitute a partnership.
Lord Mansfield said, “I considered this, at first, as a case of dor-
“mant partners. The law with respect to them is not disputed, viz.
“that they are liable when discovered because they would otherwise
“receive usurious interest without any risk; but, towards the end
“of the cause, the nature of the transaction, and of these loans, was
“more clearly explained, and I was satisfied with the verdict, and
“am, now confirmed in my opinion. The evidence of Cartony is ir-
“relevant, because he said the broker borrowed the money for him ;
“and, besides, he did not dispute the demand. Is this a partnership
“between the buyers ? I think it is not; but merely an undertaking
“with the broker by each, for a particular quantity. There is no un-
CHAP. VI.] Of Contracts by Partners.
269
“dertaking by one to advance money for another, nor any agreement,
“to share with one another in the profits and loss. The broker un-
“dertakes to buy and sell, but makes no advance without the securi-
“ty of the tea-warrants, which are considered as cash, and pass by
“delivery, like East-India bonds. These warrants are pawned with
“ the lender, but the broker has no power to pledge the personal se-
“curity of the principals-He cannot sell the warrants, and borrow
“more money on such personal security. It makes no difference,
“whether specific tea, or the warrants, are delivered at the sale. It
“would be most dangerous if the credit of a person, who engages for
“a fortieth part, for instance, should be considered as bound for all
“ the other thirty-nine parts. Non haec in foedera veni-The wit-
“nesses did not merely speak to opinion, but to matter of fact, and
“ their own dealings. They said, the money was lent to the broker
“alone. Sometimes, indeed, lenders have required to know the
“principals; they did not trust the broker alone; but all others who
“do not ask after the principals do. The note is given as a collate-
“ral security personally by the holder of the warrant, not in the cha-
“racter of a partner with other persons, nor as a broker for them.”
Buller, J. said: “This is a very plain case. The plaintiffs had no
“reason to consider the broker as a partner with the other persons, for
“ though he had a share, he did not act or appear as a partner. Nor
“were they partners as among themselves. They had never met or
“contracted together as partners. If this transaction were sufficient
“to constitute a partnership, a broker would have it *in his power to
“make 500 persons partners, who had never seen nor heard of one
“another, or might, at his pleasure, convert his principals into part-
“ners, or not, without any authority from them, by taking joint or sep-
“arate warrants.”
So, where one person agrees to buy a quantity of goods, and to let
others have a certain proportion of them, he alone is answerable; such
a transaction being considered a mere sub-contract, and not a partner-
ship.
Thus in the case of Coope and others v. Eyre and others,(n) which
was an action of assumpsit, brought by the plaintiffs as owners of a
Greenland ship, called the Earl of Chatham, against the defendants, as
partners, on an agreement to purchase oil, the cargo of a ship. It ap-
peared that on the 24th August, the defendants, Eyre, for himself and
partners, (who were Atkinson and Walton, general merchants,) Hat-
tersley, for himself and Stephens, who were oil merchants, and Pugh,
for himself and son, who were also oil merchants, agreed to purchase
jointly as much oil as they could procure, on a prospect that the price
of that commodity would rise : that Eyre, should be the ostensible buy-
er, and the others share in his purchase at the same price which he
tnight give, Hattersley and Co. were to have one-fourth, Pugh one-
%298
(n) 1 H. Bl.
137.
276
Of Contracts by Partners. [PART II.
299
fourth, and Eyre and Co. the remaining moiety: that they bought
large quantities of oil belonging to other ships and other traders be-,
sides the plaintiffs, in the name of Eyre and Co.; that Hattersley and
Pugh occasionally came forward, and gave directions as to the de-
livery of the oils, and otherwise interfered in the transaction, and al-
so made many declarations, “that they were all jointly interested in
“the different purchases, and that there was a general concern be-
* tween them.” - --
The evidence as to this point was in substance as follows : Gar-
forth, the broker, proved the contracts, signed by Eyre, for himself
and Co.; general orders from Eyre only to purchase any quantity of oil
which might offer. Hattersley and Pugh told him they were to have
a part of what was purchased in the firm of Eyre and Co., and that
they were jointly concerned. They went to receive a cargo sold by
Thwaites, at Blackwall. Thwaites, who had also sold oil to the defend-
ants, proved that Hattersley said, “It is all the same whether Eyre or
“I buy it; it is the same concern ;” and that *Pugh said, “ Hatters-
“ley and I am concerned ;” that they attended to see the oil guaged :
Strickland, who had the care of Greenland dock, proved that Hatters-
ley and Pugh said, “We have purchased your oil ;” that on failure
of Eyre and Co. Pugh sent an order not to deliver the oil of the ship
Britannia, which had been purchased by Eyre and Co., and had the
cellars locked. - -
Kilbington sold to Eyre and Co., by Garforth the broker, delivered
to Hattersley, who gave in payment a bill accepted by Eyre and Co.,
and his own note, to indemnify the witness in making an indorsement.
Captain Hastings sold oil to Eyre and Co. by the same broker, for
which Pugh signed an agreement.
Captain Dowson also sold oil by Garforth to Eyre and Co., for
which Pugh gave a receipt ; and being asked, whether the buyers
were responsible persons, told the witness that he was safe, saying,
“I am concerned, Hattersley is concerned, and there is a house at
“ Norwich which can buy usall.” Pugh afterwards repeated this in
the presence of Hattersley, who acknowledged it to be true. -
Phelps proved that he was agent to sell oil for a Mr. Yeomans, and
not trusting to Eyre only, whom he considered as a mere speculator,
required the names of the others concerned to be given in, upon
which Garforth, the broker, gave in the names of Hattersley and Co.
At the trial, on the part of the defendants, it was insisted that the
contract for sale was made between the plaintiffs and Eyre and Co.
only, and that the agreement which the defendants entered into be-
tween themselves was only a sub-contract, and did not constitute a
partnership. Lord Loughborough, Ch. J., after declaring his opinion,
(that as the defendants did not appear to have been jointly concerned,
further than the purchase of the oil, they had not such a joint interest
in the profits and loss as the law made necessary to a partnership,)
Char. VI.] of Contracts by Partners.
271
directed a verdict to be found for them, which was accordingly done.
But the plaintiffs' counsel afterwards moved for a rule to show
cause why a new trial should not be granted. In support of the rule
they admitted that a participation of profit and loss was necessary to
constitute a partnership, and argued that this was a contract of that
nature. Whether the agreement be to divide the goods themselves
at a given time, or the produce on the sale of them, each party runs
the same risk, and each has his share of profits *and loss, either in the
increased or decreased value of the goods, or the increased or de-
creased price for which they might actually be sold.
The defendants, Hattersley and Pugh, occasionally permitted
their names and credit to be used, and holden out as persons jointly
concerned : neither of them could say, “Non haec in faedera ºveni.”
While the speculation promised well, and they feared that the whole
profit would belong to the assignees of Eyre and Co., they went to
Greenland Dock, to secure to themselves their respective shares of the
concern. This was holding themselves eut as jointly concerned in
some of the contracts: But if they were concerned in some, they were
so in all, as they were all made under the same order. It was known
that Eyre had several other persons concerned with him, otherwise
he could not have gained credit to so large an amount; but it was
not necessary that the vendors should know who the private partners
were: they gave credit to them, though not by name. The broker
would not have made a bargain which could not be fulfilled ; he
knew that he was acting for responsible persons. But it shall not
be in their power, after three months have elapsed, by their own
act, to convert a partnership into a mere agreement. In the case
of Rich v. Coe(*) the owners of a ship, let for a term of years to
the master, who covenanted to repair her at his sole expense, were
held liable for repairs, though the ship-builders supposed the mas-
ter to be the owner, and gave credit only to him. The firm of a
house may have a different meaning, according to the nature of the
trade. Eyre and Co., as general merchants, might mean Eyre, At-
kinson, and Walton ; but in the oil trade, (which was known to be an
extraordinary concern) Eyre and Co. meant Eyre and the other de-
fendants, because they were all concerned together in the oil con-
tracts. It is objected that this is not a partnership, but only a sub-
sale, or sub-contract. A sub-contract is a secondary contract depen-
ding upon some primary and antecedent one. In the case of a pur-
chase of goods, it means a subsequent agreement to take a part of what
has been previously bought; it is like an under-lease of lands. But a
previous agreement to share in an intended purchase is a contract of
partnership. So, if before a lease was granted, the intended lessee
were to agree to let another have a share in the concern, that could not
*-* =
(*) Post, tit. Owners and Masters of Ships.
%. 306)
272
Of Contracts by Partners. [PART II.
%. 302
be regarded as a sub-contract, the person sharing would in such case be
deemed a co-lessee in equity, and would be liable to the rent and co-
venants; for qui "sentit commodum sentire debet et onus. It could not
be a sub-sale to Hattersley and Pugh, because each was to have a
share on the same terms as Eyre and Co. purchased. But Eyre and
Co. were merchants, and merchants never buy to sell again at prime
cost. Hattersley and Pugh must, therefore, be said to have shared
originally in these bargains, and not to have purchased any second
part of them. The spirit of buying and selling is gain; the spirit of
partnership is mutual participation of gain. -
The court not being unanimous on this case, the Judges delivered
their opinions serialim as follow:
Gould, J. said, “The facts of the present case are shortly these:
“the defendants Eyre and Co. order one Garforth, a broker, to buy
“quantities of oil. The defendants, Hattersley and Co., and Pugh
“and Co., were to have, for their respective shares, each one-fourth.
“The broker buys divers ship loads; and to some of the vendors the
“defendants, during the treaty, declare it to be a common concern
“between them and Eyre and Co., in whose name the purchases were
“made. -
“But with respect to the plaintiffs, the purchase was made singly
“in the name of Eyre and Co. without any notification that the de-
“fendants had any concern in it.
“These purchases were made on speculation, there being a pros-
“pect that oil would rise in price; but it afterwards fell, and then
“the defendants contend that they are not liable to make good the
“difference, Eyre and Co. having failed.
“Upon these facts two questions arise; 1st. Whether the defend-
“ants are partners with Eyre and Co. 2 2d. If not, whether they are
“to be deemed joint contractors in the purchase for Eyre and Co.,
“ and so liable for the whole P -
“As to the first, I think they cannot be considered as partners with
“Eyre and Co. in this purchase from the plaintiffs : although there
“may be partnerships in many other instances besides what are mere-
“ly commercial, as in the case of farms rented by several persons
“jointly, and of partnerships of attornies, and the like, yet I think
“the true criterion is as stated by Mr. J. Blackstone, in the case of
“Grace and Smith,(*) whether they are concerned in profit and loss?”
“ and the same doctrine is in effect held by Chief Justice De Grey in
“ that case. - -
“But in the present case there was no communication between the
“buyers as to profit or loss. Each party was to have a distinct
“*share of the whole, the one to have no interference with the share
(*) Ante, 291. -
CHAP. VI.] Of Contracts by Partners.
.273
“ of the other, but each to manage his share as he judged best. The
“ profit or loss of the one, Inight be more or less than that of the other.
“In this light I am of opinion there is no foundation for the court
“to adjudge the present case a partnership; and the jury having
“ found for the defendants, that there is no reason to disturb the ver-
“ dict.
“ 2d. Whether they can be considered as joint purchasers.
“I think it would be attended with great inconvenience in the com-
“mon dealings between man and man to admit that position. The
“stipulation is, that the purchase should be made as for Eyre and Co.,
“in the total, and each is to have a separate and distinct part. A
“man goes into Yorkshire to buy as many horses as he can collect,
“ or a limited number and agrees with a friend that he shall have two.
“It sarely cannot be contended that this could make the friend a
“joint contractor, to subject him, in failure of the other, to pay for
“ the whole bargain.
“So, in a familiar case, a man is about to buy a tun of wine, and
“ agrees that a friend shall have a hogshead.
“And I think the case of Hoare and Dawes,(0) is strong on this
“head : I need not state the case, it having been already stated sev-
“ eral times.
“Lord Mansfield holds it merely an undertaking with the broker
“‘ by each for a particular quantity ; no undertaking by one to ad-
“‘vance money for the other, nor to share with one another in profit
“‘ or loss. It would be most dangerous if the credit of a person who
“‘ engages for a fortieth part, (for instance,) should be considered as
“‘ bound for the 39 others.” -
“This doctrine falls in exactly with my ideas. I think cases of this
“nature should stand on broad lines, not on subtilties and refinements,
“ the source of litigation and disputes.”
Heath, J. “The question for the determination of the court is,
“whether the contract made with the plaintiffs is so far binding on
“ the defendants, Pugh, Hattersley and Stephens, as to make them
“ liable on the failure of Eyre and Co. P
“If this contract may be considered independently of the other
“ contracts given in evidence, there could be little doubt. Eyre and Co.
“ employ Garforth, their broker, to buy oil, and it is agreed that the
“ other defendants shall have aliquot parts when the commodity is
“ purchased. *
“*This is a sub-contract. By a sub-contract I mean a contract
“subordinate to another contract, made or intended to be made, be-
“ tween the contracting parties on one part, or some of them and a
“stranger. Eyre and Co. are the only purchasers known to the plain-
“ tiffs; entire credit was given to them alone. Pugh, Hattersley, and
“Stephens, can be liable only in the event of a concealed partner-
“ship, on this principle, ‘that the act of one partner binds all his
Ver. I. [35]
(0) .4nte,
295.
* 303
274
Of Contracts by Partners [PART II.
“‘co-partners, on account of the communion of profit and loss.” In
“truth, they were not partners, inasmuch as they were only inter-
“ested in the purchase of the commodity, and not in the subsequent
“ disposition of it.”
“Great reliance has been placed on this being a joint concern, and
“a joint speculation. It is so between the defendants, but the con-
‘tracts made with the other vendors are different. A contract made
“between fl. and B. cannot be given in evidence to explain a con-
“ tract made between A. and C. It is res inter alios acta. In fact,
“ the defendants have pledged themselves explicitly with other per-
“ sons in a different manner. The contracts made with other mer-
“chants are not admissible evidence in this cause, except to prove a
“fraud, if the facts had gone that length; namely, that the house of
“ Eyre and Co., as a failing house, was to stand forwards, in order to
“protect the other defendants, who, by such means, might have the
“benefit of the speculation, if it proved fortunate, without sustaining
“any loss in the event of its failing. No such evidence has been
“adduced; on the contrary, it appears that the objection made by
“ the other vendors to the firm of Eyre and Co. was, ‘ that they were
“‘ unknown, and new in the trade.”
“If Pugh, Hattersley, and Stephens, had authorized the broker to
“ purchase aliquot shares for them, this case would have resembled
“ that of Hoare v. Dawes, the doctrine of which is confirmed by a
“passage in the Digest, lib. 17. tit. 2. pro socio, s. 33. quinolunt in-
“‘ter se contendere, solent per nuntium rem emere in commune, quod,
“‘ a societate longe remotum est.”
“No detriment from this decision can arise to trade, or affect the
“credit of merchants; for it behoves every contracting party to con-
“sider the responsibility of the persons with whom he contracts, and
“he has also the resource of a dormant partnership, if any such exist,
“ and can be proved. For these reasons I am of opinion that the rule
“ought to be discharged.”
Wilson, J. “I am so unfortunate as to differ in opinion from the
“rest of the court on the present question.
“The contract was actually made between the plaintiffs and Eyre,
“ and Co.; but if the other defendants were jointly concerned in it
“they ought to be responsible, as much as if they had personally con-
“tracted. That they were so concerned, sufficiently appears from
“the contracts with the other merchants, and their own declarations.
“These, I think, were proper to be given in evidence, being against
“ themselves, to which evidence the verdict was contrary.
“The defendants were all concerned in a general speculation: there
“was an original agreement between them to purchase as much oil as
“they could procure. Of what nature that agreement was there is no
“evidence precisely to prove, no witness having been present
“when it was concluded. It might have been such as would have
CHAP. VI.] of Contracts by Partners.
Q75
“made them jointly answerable, or it might not. How then are we
“ to collect what it was P surely from the declarations of the parties
“ themselves. -,
“Thwaite's evidence proves that Hattersley said, “it is all the same
“ whether Eyre or I buy it: it is the same concern.” This shows
“it was not a sub-contract. If Hattersley had bought the oil himself,
“he would have been a contractor with Thwaites ; and when he who
“knew what the agreement was between the defendants, declares it
“ to be the same thing whether he or Eyre bought it, he puts himself
“expressly in the place of an original contractor; the court then can-
“not say that he was a sub-contractor. This declaration was before
“ the purchase of the cargo of the Earl of Chatham, on which the ac-
“tion is brought.
“ Kilbington, the keeper of Greenland Dock, proved that Hatters-
“ley and Pugh both said to him, ‘we have purchased your oil.” This
“was a direct avowal of their having jointly contracted, which was
“not done with a view to strengthen the credit of Eyre and Co., be-
“ing after the purchase was made.
“When Captain Dowson expressed some doubts whether Eyre
“ and Co., to whom he had also sold his oil, were able to pay him,
“Pugh, who received it, told him, ‘you are safe,” and declared that
“he was concerned, and Hattersley was concerned, and a house at Wor-
“wich who could buy them all. Now if they were sub-contractors, this
“declaration was not true ; how could their sub-contract make the
“ vendor safe & Here then is clearly a direct acknowledgment of
“ their being original contractors. The evidence also of the broker
“*shows that they all originally contracted : he delivered accounts to
“ them, and informed Hattersley and Pugh how matters went on. In
“one instance he was so conscious of their being jointly concerned,
“that he gave in their names as such to the agent of Peomans, who
“would not otherwise have given credit to the name of Eyre and Co.
“Upon failure of Eyre and Co., Hattersley and Pugh, gave orders
“ to the keeper of the docks not to give up the oil remaining in the
“ dock in the name of Eyre and Co., and took it as their own. Now
“ they could have had no right to do this, if they had been only sub-
“ contractors. Admitting that, after goods are delivered, there cannot
“be such a participation of profit and loss as will make a partnership,
“unless the parties originally contracted ; yet their dividing the
“goods, and each taking his share, after delivery, will be good evi-
“dence of an original contract. Whether the contract were joint or
“separate, nothing done subsequent can alter the nature of it, but
“ there may be subsequent evidence to prove of what nature it was.
“It has been said that as the credit was given to Eyre and Co. only,
“ the vendors could not be injured if Eyre and Co. only were liable,
“But this argument goes to prove that no dormant partner would he
# 305
276
of Contracts by Partners. [PART II.
%306
(p) Saville v.
Robertson, 4
Term Rep.
'720.
(2 Johns, cas.
329.)
“ answerable for the acts of the ostensible agent. I am therefore of
“ opinion, that a new trial ought to be granted.”
Lord Loughborough, Ch. J. said, “The first impression on my
“mind was against the defendants, but in the course of the trial my
“ opinion changed, and I thought they were not liable as partners :
“I still continue to think so, and consequently that the verdict was
“ proper. f
“This being an action on a contract of sale, the vendor can have
“no remedy against the person with whom he has not contracted, un-
“less there be a partnership, in which case all the partners are liable
“as one individual. It has been justly observed, that a secret part-
“ nership can be no consideration to the vendor ; though, for reasons
“...of policy and general expedience, the law is positive with respect
“ to the secret partner, that when discovered, he shall be liable to the
“whole extent. In many parts of Europe limited partnerships are
“admitted, provided they be entered on a register; but the law of
“England is otherwise, the rule being, that if a partner shares in ad-
“vantages, he also shares in all disadvantages. In order to constitute
“a partnership, a communion of profits and loss *is essential. The
“shares must be joint, though it is not necessary they should be equal.
“If the parties be jointly concerned in the purchase, they must also
“ be jointly concerned in the future sale, otherwise they are not part-
“ners. The late case of the cotton purchase resembled the present, so
“far as the several parties were each to take aliquot shares; but there,
“ no part of the commodity was to be re-sold, without the consent of
“ail concerned. Here Eyre was a mere speculator, and the other de-
“fendants were to share in the purchase, but were not jointly interes-
“ted in any subsequent disposition of the pi operty. Though they
“may, by other purchases, have concluded themselves as to some
“ particular vendors, yet in the transaction in question there was not
“ that communion between them necessary to make them partners;
“ their agreement was a sub-contract; which, as my brother Heath
“observed, may be executory ; it was to share in a purchase to be
“made. The seller looked to no other security but Eyre and Co. to
“ them the credit was given, and they only were liable.”
So, where several persons agreed to make an outfit, and each ad-
venturer was to purchase a quantity of goods, and bring it into the
common stock, the price of a parcel of goods so bought was held an
individual debt, which could not be recovered from the other adven-
turers.(p) .
[So, where two houses were joint owners of a vessel and each pur-
chased their respective shares of the cargo, but one part of the cargo
was not distinguished from the other, by any particular marks, and
the whole cargo was sold for the benefit of the owners. The super-
CHAP. VI.] of Contracts by Partners.
27?
cargo, being a partner of one of the houses, invested the proceeds of
the outward cargo in a return cargo: Held, that this transaction did
not constitute a partnership so as to render the disposition of the re-
turn cargo by the supercargo, binding as the act of a partner. Post,
et al. v. Kimberly, et al. 9 Johns. Rep. 470. -
But if one advances funds for carrying on trade, and another fur-
nishes his personal services, for which he is to receive a share of the
profits, this will make them partners between themselves and as re-
gards third persons. Dob, et al. v. Halsey, 16 Johns Rep, 34.]
But, a contract made by two partners to pay a certain sum of money
to a third person equally out of their own private cash, is a joint con-
tract, and they must be jointly sued upon it.(?)
So, in another case(r) where ºff. having neither money nor credit, of
fers to B. that if he will order with him certain goods to be shipped
upon an adventure, if any profit should arise from them, B. should
have half for his trouble; B. having lent his credit on this contract,
and ordered the goods on their joint account, which were furnished
accordingly, and afterwards paid for by B. alone ; it was holden that
he was entitled to recover back such payment in assumpsit against A.
who had not accounted to him for the profits.
*Lord Ellenborough, Ch. J. said, “The distinction taken in Waugh
“ v. Carver and others,(*) applies to this case. Quoad third persons
“it was a partnership; for the plaintiff was to share half the profits.
“But as between themselves it was only an agreement for so much,
“as a compensation for the plaintiff’s trouble, and for lending Robert-
“ son his credit.” -
Where two persons jointly carry on business as partners, but one
only appears, and is known in the concern, and is permitted to rep-
resent himself to the world as a sole trader, that one shall not be al-
lowed to set up partnership as a defence to an action brought against
him only.
Thus, in the case of Stracy, Ross, and others, v. Deey,(s) which was
an action of assumpsit for goods sold ; pleas non-assumpsit and a
set-off. The plaintiffs jointly carried on trade as grocers, but Ross
was the only ostensible person engaged in the business, and appeared
to the world as solely interested therein. By the terms of the par-
nership, Ross was to be the apparent trader, and the others were to
remain mere sleeping partners. The defendant was a policy broker,
and being indebted for grocery (as he conceived) to Ross, he effected
(g) Byres v.
Dobey, 1 H.
B1. 236.
(r) Hesketh
v. Blanchard
and another,
executors of
Robertson, 4
East's Rep.
144.
(10 Johns.
Rep. 226.)
* 307
(*) Ante, 286.
hall Sittings,
after Mich.
Term, 1789,
Coram, Ld.
Kenyon, 7
Term Rep.
361. m. C.
278
Qf Contracts by Partners. [PART II.
# 308
(t) 7 East,
210.
(13 East,
175.)
insurances, and paid premiums on account of Ross solely, to the
amount of his debt, under the idea that one demand might be set off
against the other. Ross's affairs being much deranged, payment of
the money due from the defendant was demanded by the firm and was
refused by him upon the ground of his having been deceived by the
other partners keeping back and holding out Ross as the only person
concerned in the trade. Lord Kenyon, Ch. J. was of opinion, that as
the defendant had a good defence by way of set-off, as against Ross,
and had been by the conduct of the plaintiffs led to believe that Ross
was the only person he contracted with, they could not now pull off
the mask and claim payment of debts supposed to be due to Ross
alone, without allowing the parties the same advantages and equities
in their defence that they would have had in actions brought by
Ross.
=º-
*2. What Contracts, &c. made by one Partner shall bind himself and
his Co-partner.
If one of several partners draws, accepts, or indorses a bill or note
or enters into any other contract not under seal, in the name of the
partnership firm, for any thing relating to the joint concern, all the
partners are bound by it, and liable to the person with whom the ob-
ligation is made, if he has acted bona fide. The same liability may,
also, in some instances, be incurred upon a bill or other negotiable in-
strument given by one partner in the name of the partnership firm for
his own separate debt or concern.
Thus in the case of Swan and others v. Steele, Clerk, and Wood,(t)
which was an action of assumpsit, wherein the plaintiffs declared, first,
on a bill of exchange, dated 26th of August, 1803, drawn by D. Mait-
land on Campbell and Co. for 3421. payable to the order of the defend-
ants, and one George Payne, deceased, three months after date, and
indorsed by the defendants and Payne, under the firm of Wood and
Payne to the plaintiffs; and which bill Campbell and Co. had accept-
ed. The plaintiffs also declared for goods sold and delivered, and on
the common money counts. The defendant Steele pleaded non-as-
sumpsit, and the defendant Wood suffered judgment by default. At
the trial, the jury found a verdict for the plaintiff for 368). 5s. 4d.,
subject to the opinion of the court on the following case.
“Wood and Payne mentioned in the pleadings, were wholesale gro-
“cers in Liverpool, trading under the firm of Wood and Payne, from
“January, 1802, until January, 1804; with whom the defendant
“Steele became a partner in May, 1802, and so continued till Jan-
“uary, 1804, in the business of buying and selling cotton ; which bu-
“siness was carried on under the firm of Wood and Payne, and at
CHAP. VI.] Of Contracts by Partners.
279
“ their counting-house; but Steele was never interested in the grocery
“business. Steele took no active part in the cotton concern ; nor was it
“ known to the world or to the plaintiffs that he was a partner. The
“plaintiffs sold to Wood and Payne, as grocers, a quantity of sugar,
“for which they gave their acceptance in the firm of Wood and Payne,
“at four months, due the 11th of October, 1803; and not being able
“to provide for it when due, Wood and Payne, on “the 8th of Oc-
“tober, 1803, delivered to the plaintiffs the bill mentioned in the dec-
“laration due the 29th of November, with others, to provide for that
“ acceptance ; and the bill was indorsed by either Wood or Payne
“in the firm of Wood and Payne, without the actual knowledge of
“ Steele, as all other bills in the cotton concern were. The said bill
“had been paid to Wood and Payne, as cotton dealers by the draw-
“er thereof, for cotton sold to him, in which Steele was, as afore-
“ said, interested ; and the name ‘D. Maitland,’ thereto subscribed
“ as the drawer, was the hand-writing of D. Maitland of Wigan,
“ to whom the cotton was sold. The said bill has been dis-
“ honoured, of which Wood and Payne, had due notice. Wood
“ and Payne became bankrupts on the 16th January, 1804, and the
“effects of the cotton concern were insufficient to discharge its debts:
“ and Steele, when he should have discharged those debts would
“ have been a creditor of the concern. The question for the opinion
“ of the court was, whether the plaintiffs were entitled to recover ?
“If they were, then the verdict was to stand ; otherwise a verdict
“ was to be entered for the defendant Steele.”(v) -
The court were clearly of opinion, that the plaintiffs were entitled
to recover.
Lord Ellenborough, Ch. J. said, “It would be a strange and novel
“ doctrine to hold it necessary for a person receiving a bill of exchange
“indorsed by one of several partners, to apply to each of the other
“ partners to know whether he assented to such indorsement; or oth-
“erwise that it should be void. There is no doubt that in the absence
“ of all fraud on the part of the indorsee, such indorsements would bind
“all the partners. There may be partnerships where none of the ex-
“isting partners have their names in the firm. Third persons may not
“know who they are, and yet are all bound by the acts of any of the
“ partners in the name or firm of the partnership. The case is too clear
“ for argument and I should not have permitted the point to be reser-
“ved, if I had not understood at the trial that there were some other
“facts in the case which might raise a doubt. ...The distinction is well
“settled, that if a creditor of one of the partners conclude with him to
“take payment or security for his individual debt out of the partnership
“funds, knowing at the time, that it is without the consent of the *other
“partner, it is fraudulent and void : but if taken bona fide without such
“knowledge at the time ; no subsequently acquired knowledge of the
“misconduct of the partner in giving such security can disarm the
* 309
(v) It does
not appear
from the case
how Clerk
one of the de-
fendants be-
came a party.
86)
Of Contracts by Partners. [Part II.
(u) 2 Esp.
Rep. 731.
“act. Now here the three persons were trading under the firm of
“Wood and Payne, and in the course of their dealings as partners re-
“ ceived the bill in question; and it was competent to either of them
“by his indorsement, in the name of the firm, to pass their interest in
“ the bill; and the plaintiffs, ignorant of any fraud at the time, take it
“ by such indorsement from one of the partners. Then if the interest
“ of the plaintiffs in the bill were once well vested, no subsequent
“knowledge that such indorsement was made without the consent of
“ one of the partners will divest it. And it would be highly incon-
“venient that it should ; because if the plaintiffs had been apprized
“ at the time, that the partner who indorsed the bill had no authority
“ to do so, they might have obtained some other security for their de-
“mand.”
But in the case of Wells v. Masterman and others,(w) which was an
action of assumpsit on two bills of exchange, drawn by the plaintiff
on the defendants by the style of James Masterman and Co. dated
the 30th of January, 1798; accepted by James Masterman only,
without the words and Co. The partnership commenced in 1795.
James Masterman carried on a separate trade on his own account,
and had had dealings with the plaintiff before his partnership, who
had also dealings with the firm.
The defence set up to this action was, that the bills were drawn on
the separate account, and for the separate concern of James Master-
man only ; and that the acceptance in question did not bind the part-
nership, so that an action could be maintained against them, as the ac-
ceptors of the bills in question; and another bill of exchange was pro-
duced, drawn in the same style and manner as those in question, but
accepted by Masterman and Co. which had been paid.
Lord Kenyon, Ch. J. said, “When a man enters into a partnership
“he certainly commits his dearest rights to the discretion of every one
“ who forms a part of that partnership in which he engages ; and if a
“bill is drawn upon the partnership in their usual style and firm, and
“ it is accepted by one of the partners, it certainly binds the partner-
: “ ship to the payment of it ; but if a man who has *dealings with one
“partner only, and he draws a bill on the partnership on account of
: “ those dealings, he is guilty of a fraud, and in his hands the accep-
: “tance made by that partner would be void l but it would be other-
n his hands, the accep-
“tance of one of the partners binds the partnership, and he is ignorant
“ of the circumstances under which it was created, and takes it on
“ the credit of the partnership name.”
So, where two partners contract a debt prior to the admission of a
third partner, for which the creditor, at the instance of the two, af-
terwards draws a bill upon the three in the name of the partnership
firm; and the bill is accepted by the two, without the privity of the
third, such creditor cannot recover upon it: though if such bill gets
CHAP. VI.] Of Contracts by Partners.
281
bona fide into the hands of an indorsee, all the partners are liable to
him and may be sued thereon.
Thus, in the case of Shirreff and others v. Wilkes,(w) which was
an action upon the case upon a bill of exchange for 78l. dated the 5th
of November, 1796, payable to the order of the plaintiffs two months
after date, which was stated in the declaration to have been drawn by
them on the said G. Bishop, W. Robson, and J. Wilks, by the name
and description of Messrs. George Bishop and Company, and to have
been accepted by them. The defendant Wilks pleaded the general
issue, on which issue was joined. -
The cause was tried before Lord Kenyon, Ch. J. at Guildhall, and
a verdict was found for the plaintiffs for 90l. 10s. including interest
on the bill ; subject to the opinion of the Court of King’s Bench on
the question, whether the plaintiffs were entitled to recover under
the following circumstances.
The plaintiffs in October, 1795, sold and delivered a quantity of
porter to Bishop and Wilks, who were then partners, which porter
was entered in the plaintiffs’ books in the name of Wilks and Bishop ;
and the same was afterwards shipped for the West #3dies, and the de-
fendant, Wilks, paid the shipping charges. Robson became a partner
with Bishop and Wilks in April, 1796, and continued so till the 8th
of November following, when their partnership was dissolved. The
defendant Wilks, previous to the dissolution of the partnership sent
to the plaintiffs a memorandum or calculation in his own hand-writing
of certain deductions claimed *by him in respect to the porter. The
balance due to the plaintiffs in respect of the porter was 78l. for
which the plaintiffs drew upon the defendants the bill mentioned in
the declaration, which bill was accepted by Bishop in the partnership
firm of all the defendants, by his subscribing thereon “Accepted, G.
B. and Co.”
The court were of opinion that the plaintiffs, were not entitled to
reCOWer,
Lord Kenyon, Ch. J. said, “I do not know how this case came to
“ be reserved for the opinion of the court: for I have decided the
“ same question repeatedly at the sittings, and the propriety of my
“decision has never been canvassed again upon a motion for a new
“trial. This is an action brought against three persons, Wilks,
“Bishop and Robson, as acceptors of a bill of exchange. It appears
“that the acceptance was in fact made by Bishop alone in the name
“of the firm. The consideration for this bill was some porter which
“had been sold by the plaintiffs to Wilks and Bishop only, at a time
“when Robson had no concern with the house. Then the plaintiffs
“knowing this, drew the bill upon all the three partners, and know-
“ingly take an acceptance from one of them to bind the other two,
“one of whom, Robson, had no concern with the matter, and was no
“ debtor of theirs ; no assent of his being found, and nothing stated
VoI. I. [36]
(w) 1 Fast's
Rep. 48.
$ 312
a82
ðf Contracts by Partners. [PART II.
# 313
“to show that he had any knowledge of the transactions. It is
“hard enough for one partner, in any case, to be able to bind another
“ without his knowledge or consent, but it would be carrying the li-
“ability of partners for each other’s acts to a most unjust extent, if
“we suffered a new partner to be bound in this manner for an old
“ debt incurred by other persons. The plaintiffs, therefore, ought not
“ in justice to have taken this security by which they were to bind
“one who was not their debtor : the transaction is fraudulent upon
“ the face of it. It is no answer to say, that one partner has a gener-
“ al power of binding the rest. So an executor has power to bind the
“ assets of the testator, and to sell and dispose of his effects, and the
“law reposes a confidence in him, that he will apply the proceeds in
“ payment of the testator’s debts, and legacies: but if fraud could be
“ proved in any particular transaction between the executor and a
“ purchaser, such a sale would be void. -
“Nothing can be better established, as a general rule, than, that
“ the law will set aside every contract which is fraudulent. Such is
“ the case here. Wilks and Bishop owed money to the plaintiffs;
“ these latter, knowing that Robson had no concern with the matter,
“*fraudulently receive from Wilks and Bishop a security by which
“ Robson is to be bound : this, therefore, cannot be enforced in this
“ action.”
Lawrence, J. said, “ the plaintiffs in this action declare as upon a
“ promise by three defendants, and consequently to entitle them-
... selves to recover they must prove a promise either express or impli-
“ed binding upon all the three : in this they have failed, and there-
“ fore there must be judgment against them. In addition to
“ the authorities cited by my Lord to show that Robson was not
“bound by this act of his partners, is the case of Hope v. Cust.
[He then read the following note from a MS. of the late Mr. Jus-
tice Buller, taken by him, when he was at the bar :] -
“ Hope v. Cust, sittings at Guildhall, after Mich. Term, 1774. Mr.
“ Fordyce, who traded very largely in his separate capacity, as well
“ as in the business of a banker, in partnership with others, having con-
“ siderable dealings in his private capacity with Hope and Co. in
“ Holland, did, for and in the names of himself and partners, give them
“a general guarantee for the money, due from him in his separate
“ capacity. Fordyce became a bankrupt, and afterwards all the part-
“ ners became bankrupts. And a bill was filed in the court of Chan-
“ cery by Hope and Co. in order to have the benefit of this guarantee:
“ upon which that court directed an issue to try the validity of it.
“ Lord Mansfield, in summing up the evidence to the jury, said,
• ‘There is no doubt but that the act of every single partner in a
“ transaction relating to the partnership binds all the others. If
“‘ one give a letter of credit or guarantee in the name of all the part-
“ ners it binds all. But there is no general rule which may not be
CHAP. VI.] Of Contracts by Partners.
283
“‘infected by covin, or such gross negligence as may amount to, or
“‘be equivalent, to covin : for covin is defined to be a contrivance
“‘between two to defraud, or cheat a third, Therefore the whole
“‘will turn on this, whether the taking the guarantee from Fordyce
“‘ himself in his own hand-writing, without consulting the other
“‘partners, or having their privity, is not such gross negligence in
“‘ the Hopes as will amount to a fraud or covin. Fordyce was act-
“‘ing in two several capacities, having transactions in his own
“ name only, for his own separate benefit, and in the names of the
“‘partnership for his own benefit. This case comes out of Chance-
“‘ry, where an affidavit or answer of all parties might have been
“‘had if necessary ; but none such has been produced, and therefore
“‘ it must be taken that the partners knew nothing of it, *and had no
“‘profit by it, or privity in the transaction. Another fact to be grant-
“‘ed is, that as between Hope and Co. and Guernal and Co. and For-
“ dyce, the whole transactions are avowedly with Fordyce only in his
“‘ separate capacity. The next fact is the correspondence in 1770,
“‘preceding the second guarantee. It is clear that Fordyce's de-
“‘posits and interests in the funds were both doubted, and then
“‘the Hopes tried to make a scheme to get a second security with-
“‘ out shocking him, by suggesting there was a new partner. The
“‘ first guarantee was given in 1764, and that never had been called
“‘in, and still existed. There was then no occasion for a new one :
“‘ for the change of a partner, and taking in a new one, would not
“‘ destroy a former guarantee. The scheme was to get security for
“‘debts not well secured, the goodness of which was doubted ; and
“‘ they therefore get this from Fordyce alone, clandestinely, without
“‘the knowledge of his partners. If the fact be clear that Hope and
“‘Co., and Guernal and Co., knew that this was done to cheat the
“‘partners of Fordyce, there is no question in the cause. But it is
“‘manifest that they trusted to it as binding on the partnership,
“‘Therefore this brings it to the second question, whether it be not
“‘ a gross negligence ; especially as they knew at the time that For-
“‘dyce was acting in his separate capacity; and this security was
“‘ intended to indemnify them against his separate debts'. Verdict
“ for the defendant. Lord Mansfield afterwards, in his report to the
“court of Chancery, on a motion being made for a new trial, said,
“ three things were established to the satisfaction of himself and the
“jury. First, that the transactions between Hope and Co. and For-
“dyce were wholly on Fordyce's account, Secondly, that the part-
“ners of Fordyce derived no profit or benefit whatsoever from them.
“Thirdly, that they had no notice of the guarantee ; and consequent-
“ly did not acquiesce in it. And Lord Mansfield, said, he left it
“to the jury, whether under these circumstances the taking of these
“guarantees were, in respect of partners, a fair transaction or coy.
# 314
284. Of Contracts by Partners. [PART II.
“inous, with sufficient notice to the plaintiffs of the injustice and
“breach of trust Fordyce was guilty of in giving them.”
§ *...*. So, in the case of Arden v. Sharpe and Gilson,(a) which was an ac-
* * ition of assumpsit by the plaintiff as indorsee of a bill of exchange
| drawn by R. Cowan on one Rae, at two months after date in favour
of *R. Packer for 60l. dated the 4th of March, 1796. The case as
proved, on the part of the plaintiff, was, that on the 1st of March, the
day on which the bill bore date, Gilson, one of the defendants, brought
the bill in question to the plaintiff, and requested him to discount it;
the plaintiff said he could not do it himself, upon which the defend-
ant Gilsdn answered, he could get it done for him, but wished the
business to be kept a secret from his partner Mr. Sharpe; to which
the plaintiff assented and took his bill. The witness then proved,
thät the indorsement “Sharpe and Gilson” was in the hand-writing
of Gilson. On this evidence the plaintiff rested his case.
Lord Kenyon, Ch. J. said, “This action, under the present proof,
“cannot be supported : the bill is indorsed by one partner, in the
“name of the firm ; one partner certainly may indorse a bill in the
“partnership name, and if it goes into the world, and gets into the
“hands of a bona fide holder, who takes it on the credit of the part-
“nership name, and is ignorant of the circumstances, though in fact
“ the bill was first discounted for that one partner’s own use; in such
“case the partnership is liable ; but the case is different where the
“party who brings the action was himself the person who took the
“bill with the indorsement by one partner only, and was informed
“that the transaction was to be concealed from the other ; he can-
“not sue the partnership; the transaction indicates that the money
“was for that partner’s own use, and not raised on the partnership
“account, therefore shall not be allowed to resort to the security of
“the partnership, to whom in the original transaction he neither look-
\ “ed or trusted.” The plaintiff was accordingly nonsuited.
% 315
|
\
º
[In Livingston v. Roosevelt, et. al. 4 Johns. Rep. 251. Kent, Ch. J.
remarks “The law is well settled that if any person takes a partner-
ship security from one of the partners, for what is known, at the time,
to be the particular debt of the partner who gives such security, the co-
partnership is not holden. The cases in (2 Caines’, 246. 2 Johns.
Rep. 300.) were decided upon this ground ; and the cases in the Eng-
lish Courts (2 Esp. Rep. 524. 1 East 48, 8 Wes. jr. 540) all recog-
nize the same principle. The knowledge in the creditor, that the
partnership name is given for the individual debt of one partner, ren-
ders the transaction fraudulent and void in respect to the copartner-
ship. . . .
There are cases which go the length, that one partner cannot pledge
the partnership funds, nor make a valid partnership engagement for
CHAP. VI.] Of Contracts by Partners.
85
his individual debt. The English law, however, is now understood
to be otherwise. Perhaps, there is no distinction in principle, upon this
point, between general and special partnerships, and that the question,
in all cases, is a question of notice, express or constructive. All part-
nerships are more or less limited. Public notice of the object of a
copartnership, the declared and habitual business carried on, the store,
the counting house, the sign, &c. are the usual and regular indicia,
by which the nature and extent of a partnership are to be ascertained.
When the business of a partnership is thus defined, and publicly de-
clared, and the company do not depart from that particular business,
nor appear to the world in any other light, one of the partners can-
not make a valid engagement, on any other than partnership ac-
count.” -
But one partner is bound by the acts and representations of his
copartner in a matter relating to their partnership dealings. (2 Barn.
& Ald. 795.) So, where one of two partners makes a contract as to
the terms on which any business is to be transacted by the firm, al-
though such business is not in their usual course of dealings, and even
contrary to their agreement with each other, and the business is af-
terwards transacted by or with the knowledge of the other partner :
Held, that he is bound by the contract made by his partner. Sandi-
land, et. al. v. Marsh, 2 Barn. & Ald. 678.
ºffbbot, Ch. J. observes, “It has undoubtedly, been held, that in a
matter wholly unconnected with the partnership, one partner cannot
bind the others. But the true construction of the rule is this, that
the act and assurance of one partner, made with reference to busi-
ness transacted by the firm, will bind all the partners. To illustrate
this position, a case may be put, where two persons in partnership
for the sale of horses, should agree between themselves never to war-
rant any horse ; yet, though this be their course of business, there
is no doubt, that if, upon the sale of a horse, the property of the part-
nership, one of them should give a warranty, the other would be there-
by bound.”
But, where one of two partners subscribes the name of the firm to a
note, as sureties for a third person, without the consent of the other
partner, the latter is not bound : and the burden of proving the con-
sent of the other partner lies on the holder of the note. 19 Johns.
Rep. 154.] -
So, an authority given to one partner, on the dissolution of a part-
nership, to receive all debts owing to, and to pay those owing from the
late partnership, does not authorise him to indorse a bill of exchange in
the name of the partnership, though drawn by him in that name, and
accepted by a debtor of the partnership after the dissolution.
286 of Contracts ty Partners. [Pant Iſ.
*
(y).3 ºp. Thus, in the case of Abel and another v. Sutton,(y) which was an
:*k. action brought by the plaintiffs, as indorsees, against the defendant,
gour v. Fin- *as surviving partner of one Poynter upon a promissory note for
#. *: 685l. 11s. dated the 27th of May 1799, and payable in six months after
ners. * = . m - tº
Bi. 155. S. P. date, drawn by Messrs. Horton and Co. in favour of Sutton and Co. and
% 316 indorsed in the partnership name of Sutton and Co. to the plain-
tiffs.
The defendant and Poynter had carried on business in partnership,
under the firm of James Sutton and Co. On the 31st of May, 1799,
the partnership had been dissolved, and notice of the dissolution pub-
lished in the London Gazette of the 1st of June; and the defence WaS,
that the note in question was an accommodation one, created after the
dissolution of the partnership, though it bore date before; and the
partnership name put on by Poynter alone, without authority from the
defendant ; or that even if it existed prior to the dissolution, it had
not been put into circulation until after. The indorsement “James
Sutton and Co.” was in the hand-writing of Poynter, and it appeared
clearly that it had not been made till the 28th of flugust, nearly two
months after the dissolution of the partnership: but it was stated, and
admitted to be the custom of trade, that when bills or notes had a long -
time to run, it was not usual to put them into circulation until near
the time they become due, or when they had about the usual time of
discountable securities to run. -
For the plaintiffs it was contended, that where a partnership had
been dissolved, and one of the partners had authority given him to set-
tle and liquidate the partnership accounts, and due notice to that effect
was given, (as in the present case in the same advertisement in the
Gazette, which contained notice of the dissolution of the partnership,)
such partner had a right to use the partnership name in negotiating
bills or securities which existed previous to the dissolution, until the
accounts were liquidated : and Mr. Barnewall, one of the special ju-
rymen, said it was very customary for one partner to use the part-
nership name long after it was notoriously dissolved, in negotiating
the partnership securities, for the purpose of liquidating the partner-
ship accounts, and winding up the concern ; and observed, that many
bills could not be received if the partnership name was not upon them.
For the defendant it was argued, that as the declaration stated, Sut.
ton and Co. indorsed the note, it was necessary to show that the part-
$ 617 nership existed at the time the note in question was indorsed ; *and
he cited Diacon v. Evans, 6 Term Rep. 57. in support of this posi-
tion. - -
Lord Kenyon, Ch.J. said, “If a fair bill existed at the time of the
“partnership, but is not put into circulation until after the dissolution,
“all the partners must join in making it negotiable. The moment
§ . “the partnership ceases, the partners become distinct persons: they
ep. 227.) * “are tenants in common of the partnership property undisposed of
\
CHAP. VI.] Of Contracts by Partners.
287
“from that period; and if they send any securities which did belong
“ to the partnership into the world, after such dissolution, all must join
“in doing so. I even doubt much if an indorsement was actually made
“ on a bill or note before the dissolution, but the bill or note was not
* sent into the world until afterwards, that such indorsement would
“ be valid.” •
In the course of the cause a witness was called who had been clerk
to Poynter. He was asked if he did not know that Poynter after the
dissolution of the partnership, had put the partnership name on bills
antedated to a time previous to the dissolution. This question was
objected to on the ground that it assumed as a fact that bills had been
antedated, without showing that such bills in fact did exist.
Lord Kenyon, Ch. J. was clearly of opinion, that the question was
a legal one ; and one of the counsel mentioned the cases of indorse-
ments by procuration, in which it was every day’s practice to ask
witnesses if bills had been indorsed by procuration, without producing
any such. *
It was then given in evidence that Poynter had received money for
securities belonging to the partnership, which had been thrown into the
general fund, and had been applied in liquidation. The counsel for
the plaintiffs, in reply, stated two positions in support of the plaintiff’s
claim ; 1st. That if bills existed before the dissolution of the part-
nership, and one of the partners had authority to settle and liquidate
the partnership accounts, such partner had a right to put the partner-
ship name upon such bills: and that a bona fide holder of such bill
would have a right to resort to all the partners: 2dly. That if he
put into circulation bills in the partnership names, upon which money
had been raised, which was applied in liquidation *of the partnership
debts, it was money had and received to the use of all the partners,
and all would be liable.
Lord Kenyon however, (after observing that there was no evidence
to show that the money raised upon the bill in question had been so
applied.) expressed his most decided dissent to both positions: he
said, “it could never be allowed that any one might make another his
“ debtor against his will ; by that means, a man’s greatest enemy, by
|
}
!
t
*
|
t
\
;
;
“paying his debts, might make himself his creditor. The most mis- |
“chievous and distressing consequences might ensue from such a
“ doctrine.—He had often ruled, that it could not be done : and he
“was still of the same opinion. With respect to the other position, his
“Lordship said, when a man takes a partner, he takes him for better,
“ for worse ; he reposes confidence, and places himself sufficiently in
“ the power of his partner during the partnership. To contend that
\
“ this liability to be bound by the acts of his partner, extends to a
“ time subsequent to the dissolution, was, in his mind, a most mon-
* Strous proposition. A man in that case could never know when he
“ was to be at peace, and retired from all concerns of the partnership,
#
% 313
288
of Contracts by Partners. [PART II.
(12 Johns
Rep. 409.)
(g) 1 Esp.
Rep. 406.
* 319
* if one partner was to have the power of binding another long after
• the dissolution of the partnership. I am of opinion, said his Lord-
“ ship, if a bill is sent into circulation after the dissolution of a part-
* “nership, that beyond all controversy, all the partners must join in
“ the indorsement; and one, by putting the partnership name, cannot
“bind the rest.” The jury accordingly found a verdict for the de-
fendant. - * tº
[But an acknowledgment of a debt by one partner after dissolu-
tion, will take a case out of the statute of limitations. 6 Johns. Rep.
267. 1 Taunt. 103. In this last case, the court seem to have as-
sumed the ground that the power of partners continues as to rights
created pending the partnership, after the dissolution. But see 1
Barn. & Ald. 463.]
Where two partners give a joint bill of exchange for a partnership
demand which is not paid when due, and the holder takes a separate
bill or security, of one of the partners, without the knowledge of the
other, the latter is thereby discharged.(*)
[Where one of three partners, after a dissolution of partnership,
undertook by deed to pay a particular partnership debt on two bills
of exchange, and that was communicated to the holder, who consent-
ed to take the separate notes of the one partner for the amount, strict-
ly reserving his right against all three, and retained possession of the
original bills : Held that the separate notes having proved unproduc-
tive, he might resort to the other partners, and that the taking these
separate notes, and even afterwards renewing them several times,
did not amount to satisfaction of the original debt. Bedford v. Dra-
kin, et al. 2 Barn. & Ald. 210. See also 14 East, 239. 3 Barn. &
Ald. 611.]
Money lent to one partner, whilst he is engaged in the partnership
business, in order to defray certain expenses of travelling, shall be
deemed a partnership debt, and recoverable against all the partners.
Thus in the case of Rothwell v. Humphreys and Howell,(z) which
was an action of assumpsit for money lent. The defendants were
partners, carrying on the business of linen-drapers, in London ; the
*plaintiff was a fustian manufacturer at Manchester. Howell, one of
the defendants, had gone down to Manchester, to purchase goods, in
the way of his trade, and had, in fact, purchased from the plaintiff, to
the amount of 500l. Being about to return, he borrowed 10l. from the
plaintiff, to defray his expenses to London ; and having drawn a bill
(*) Wide 4 Esp. Rep. 91.5 Esp. Rep. 122.
CHAP. VI.] Of Contracts by Partners.
289
on the house in London for the amount of the goods, he included in it
the 10l. so borrowed, and the bill was drawn for 510l.
Before the arrival of the goods in London, Humphreys and Howell,
the defendants became insolvent ; and the plaintiff stopped the goods
in transitu ; so that the bill was never presented, and the action was
brought to recover the 10l. lent only.
The defence relied upon was, that the action was brought against
both partners for a loan of money admitted by the evidence, to have
been made to one of them, and which therefore could not be sup-
ported.
But Lord Kenyon, Ch. J. said, “that though the loan of money was
“ to one of the partners, it was lent to him while employed in the part-
“nership business, and on its account; that as such, it was competent
“to him to bind the partnership to the payment of a debt so contract-
“ed, and which, in fact, he had done, by including the money lent in
“the same bill with that for goods sold clearly on the partnership ac-
“ count.” A verdict was accordingly found for the plaintiff.
So, where one of several partners receiving money, or goods, of a
third person, in the usual course of business, on the partnership ac-
count, in order to be applied to a particular purpose, wrongfully mis-
applies such money, or goods to his own private use, all the partners
are answerable. -
Thus, in the case against Layfield and others,(a) which was an ac- (a) 1, Salk.
tion on the case for money had and received to the plaintiff’s use, it
bankers and partners, and that the plaintiff had given Layfield 20s.
for which he received a ticket in the double exchange lottery, and
Layfield undertook to pay what benefit should happen thereupon ;
that the ticket came up a 40l. benefit, and for that money the action
was brought. It was objected for the defendants, that the action was
brought against Layfield and his partners; whereas it did not ap-
pear that any of them had undertaken to be trustees in the lottery,
except Layfield, and therefore he only ought to be charged, and not
his partners. -
But Holt, Ch. J. answered, that it appeared they were partners in
their trade, and goldsmiths, and the adventurers put their money in
upon the credit of several goldsmiths, that had undertaken to pay the
benefits; and it should be presumed the act of Layfield was the act
of the others, and should bind them, unless they could show a dis-
claimer, and a refusal to be concerned in it. Accordingly the plain-
tiff had a verdict for forty pounds.
So, if two persons are in partnership as attornies and conveyancers,
and one of them receives money to be laid out on mortgage, but mis-
applies it, the other is liable for the amount.
• ‘ſ Vol. [. [37]
292. Holt’s
- * - Rep. 434. $.
appeared, upon evidence, that Layfield and the other defendants were G.
# 320
290
of Contracts by Partners. - [PART If.
(a) Cowp.
814.
Thus, in the case of Willett v. Chambers,(a) which was an action
of assumpsit for money had and received to the plaintiff’s use, brought
against the defendant, as surviving partner of one Dadley. At the
trial a verdict was found for the plaintiff, damages 480l. : and upon
a rule to show cause why a new trial should not be granted, the facts
appeared to be as follow: that, prior to any partnership between the
defendant and Dadley, who was an attorney and conveyancer, at
Coventry, the latter, in the year 1771, received of a Mr. Bindley, the
sum of 350l.; to be laid out on a real security. Dadley accordingly
furnished him with a mortgage from a Mr. Hughes to that amount;
which, as it afterwards appeared, Dadley had forged. At Midsum-
mer, 1776, Dadley and Chambers, entered into partnership; shortly
after which, Bindley wanted to call in his money. The pretended
mortgagor was supposed at the same time to want a further sum of
150l., which, added to the original mortgage money, made together
the sum of 500l. The plaintiff, Willett, was ready to advance this
sum ; and, in consideration of his doing so, an assignment was made
to him of the pretended mortgage before made to Bindley, as to 180l.
part of this sum of 500l. Willett paid it into Dadley’s office to Cham-
bers, who gave the following receipt for it: “Received of Mr. Benja-
“min Willett, the sum of 180l., for which I promise to account to him
“on demand. Chambers.”
Badley was not at home when this sum was paid. Some time af-
ter, the plaintiff called at the office to pay 300l. more, part of *the re-
maining 320l. due. Dadley being then at home, Willett paid the mo-
ney to him; and, in return, Dadley gave him the following receipt:
“Received on account of Mr. Benjamin Willett, 300l. the remainder
“ of the money to be paid, being 20l. Dadley.”
It was admitted that the defendant, Chambers, was in no respect
privy to the forgery; and that no procuration money was paid either
to Chambers or Dadley.
The court refused the rule, and determined this to be a partner-
ship transaction, and that the defendant was answerable for the act
of his partner. Lord Mansfield, Ch. J. said, “Both parties in this
“case undoubtedly are innocent; and the loss that will fall upon the
“defendant, if the law is against him will be much greater than that
“which will be sustained by the plaintiff, if he fails. It is indeed so
“hard a case upon the defendant, that every leaning of the court
“would be in his favour. But the question is, “Whether, in point of
“‘law, this engagement with Dadley does not make Chambers an-
“ swerable P
“To go by steps; it is necessary to see what the business was
“ which Dadley carried on alone, before his connection with the de-
“fendant, in the year 1776. By admission of the counsel on both
“sides, it was the business of an attorney and conveyancer. By
“proof in the cause, it appears to have been a great deal more : for
CHAP. VI.] Qf Contracts by Partners.
291
“he had many appointments, though the nature of them is not par-
“ticularly mentioned. He had also agencies, and was clerk to a na-
“vigation. But there is no pretence that he ever received procura-
“tion money. The business of conveyancing, in the very nature of
“it, as carried on in the country, is this : where there is an attor-
“ney, or counsel of credit, they receive money to place out upon se-
“curities; and persons who want to borrow, as well as those who
“want to lend, apply to them for that purpose. Their profit arises
..' from having the money in their hands before it is laid out upon the
“intended Securities; and from their fees and bills of charges upon
“the conveyances they draw. It is not disputed but that this was
“the nature of Dadley’s conveyancing business: he did not act how-
“ever as a Scrivener, who sometimes does not touch the money, but
“who in all cases gets procuration money. There is no proof of any
“transaction of that kind ; nor indeed is it customary for attornies
“like him to do so; for they get profit enough without it. I remem-
‘‘ber a case before me of a person who was trusted to *the amount of
“many thousand pounds, in the manner I have stated ; and that is
“the nature of the business.
“This was the business of Dadley before the partnership. Let us
“ see then what was the nature of the partnership afterwards entered
“into, between Dadley and the present defendant; whether it was a
“general partnership in Dadley’s business, or confined to one partic-
“ular branch of it only: for to be sure there may be such a confined
“ partnership. The evidence as to this point consists in the heads
“ and terms of an agreement entered into between them, which were
“afterwards extended and reduced into form. From them it ap-
“pears there was no particular restriction ; it was not to be confined
“to suits, nor to conveyancing only; but they were to be partners in
“ the business which Mr. Dadley carried on. Each was to be worth
“a certain sum : the profits are stated at 800l. Then it is agreed
“ that a provision shall be made for the family of whichever of them
“should happen to die first. And then comes the following clause,
“at the end, which though not taken notice of by the counsel on ei-
“ ther side, is very material indeed upon this occasion. My object
“in examining it particularly was, to see whether it contained any
“restriction. The clause is this: ‘Note, this scheme of partnership
“is intended to include all Mr. Dadley’s present and future prac-
“‘tice and appointments, such as agencies, navigation-clerk, &c. but
“ not to extend to any public office or place, which may at any fu-
“‘ture time be given to either of the parties.” The only restriction,
“ therefore, is that; or, more properly speaking, it is the only excep-
“tion to this general partnership.
“Thus, the partnership commences, without waiting for articles ;
“ and from that time the business was carried on in partnership. One
“branch in that business was conveyancing. Incident to convey-
# 322
292
Of Contracts by Partners. [PART II.
# 323
“ancing is the receiving of money to place out upon securities. Re-
“ceiving it from the lender to advance to the borrower, and acting
“for both parties respectively. From that the profit arises; not from
“ procuration money, but from the money lying in their hands before
“it is placed out; and when placed out, from the charges and fees
“for drawing and engrossing the conveyances.
“The facts then are shortly these :—the plaintiff Willett, wanting
“to place out a sum of 500l., applies to the office, without making any
“ distinction between the two partners. The first sum he advances
... is 180l.; this he pays to Chambers, who gives a receipt for it, not
“expressing it to be for Dadley, or for what, or whose use; *but
“making himself accountable for the amount, on demand. He re-
“ ceives it therefore as the principal, not as the agent of Dadley; and
“it is admitted he knew the use, by placing it out upon the security
“for which it was put into his hands. The next sum, which was
“ 300l., is paid by the plaintiff to Dadley, who receives it exactly in
“ the same manner as Chambers did the former sum—as principal;
“ and gives a receipt for it, not as for so much money to be placed
“out, but as a sum for which he was to be accountable. The two
“sums together come within 20l. of what was wanted upon the secu-
“rity. Afterwards the bill for conveyancing is brought in. Hughes
“being the original mortgagor, if he had not been a fictitious person,
“ and had wanted a further sum of money upon the assignment, he
“should have paid the expense of conveyancing. But the bill is
“brought in to the plaintiff, and made out, ‘debtor to Chambers and
“ Dadley.’ Chambers receives the money, and gives a receipt for
“ it. In that transaction, therefore, he is clearly considered as a part-
“ ner, and the transaction itself as a partnership transaction. If
“Dadley had received procuration money, and that kind of dealing
“ had been accepted out of the articles, or, if separate accounts had
“been kept of the money got by these transactions, and it had all
(b) Smith.
and others v.
Jameson and
another, 5
Term Rep.
601.
“been set down to the profits of Dadley only, it might have varied.
“the case: and Mr. Justice ºffshhurst, who tried the cause, would
“have been very glad to have given a direction in favour of the de-
“fendant. He suffers by the rascality of a man who had a very good
“character. I am very sorry for the defendant; but upon this evi-
“dence I cannot say but that it is a partnership transaction.”
So, where one of two partners, being a trustee, applied trust-mon-
ey to the use of their joint-trade with the privity of the other partner;
and they afterwards separated, and by agreement the partnership ef-
fects were assigned over to the first partner, who took upon himself
the payment of the joint-debts ; this was held to be no payment in dis-
charge of the other partner, but that both were liable to make good the
trust-money.(b)
Chap. VI.] Of Contracts by Partners. 293
So, an action cannot be maintained by several partners for goods
sold by one of them living in Guernsey, and packed by him in a par-
ticular manner, for the purposes of smuggling, though the other part-
ners, who resided in England, knew mething of the sale; *for it is a * 324
contract by subjects of this country, made in contravention of the laws :
and the court said that the case must be considered in the same light
as if all the parties lived in England.(c) %#.
- Term Rep.
One partner cannot bind his copartner by deed or writing under 454.
seal, without an express authority from him, by writing under seal.(d) d) Harrison
It has, however, been determined,(e) that a bill of sale executed by v. Jackson, 7
one partner, with the consent and in the presence of the other, is bind- * Rep.
ing upon both the partners. - (e) Ball v.
- Dunsterville,
[ A third person cannot be introduced as a partner without the con- * Rep.
sent of all the partners. 14 Johns. Rep. 310.-But one partner may
release a debt due to the firm. 14 Johns. Rep. 387-19 Johns. Rep.
137.] .
3. Of Contracts with a Partnership Firm, after a Change or Disso-
lution of Partnership ; and of the Notice necessary to be given of
y
such Change or Dissolution.
Where a partnership consists of a certain number of persons, if a-
ny of the partners withdraw from the firm, and no notice is given
thereof, any person, dealing with the partnership either before or aſ-
ter such change, has a right to call upon all the parties who at first
composed the firm.(f) %{}. º
- Esp. Rep.
But where three persons entered into partnership in the trade of 248.
sugar-boiling, and it was agreed that no sugars should be bought with-
out the consent of the majority. One of them afterwards withdraws
himself from the partnership, of which he gives public notice ; and
subsequent to this, the two other partners make a contract with A.
for a large quantity of sugar, who had full notice that the third part- tº -
$41, 21. - 1 ~ * ~...~ : J. L. " ' (g) JMinnit &
ner had withdrawn. It was determined that such third partner was Whinery, 5
not answerable for any part of the sugar so purchased.(g) ro. P. C.
- *** 489. 8vo. ed.
-- . -- * - and 16 Win.
When partners dissolve their partnership, they should send notice Abr. 244. pl.
to all persons who have trusted them as partners ; a mere notice in § Peake's
the Gazette, in such case, not being sufficient. Cas. N. P.
154. See also
º º - - Gorham v.
*Thus, in the case of Graham and others v. Hope and others,(h) Thompson,
where it appeared that the defendants had been in partnership to- *. “...is
J2.
294
Of Contracts by Partners. [PART II.
{{) 1 Esp.
Rep. 371.
# 326
gether, and the plaintiff had sold them goods as partners. After-
wards the partnership was dissolved, and notice of the dissolution
given in the London Gazette ; and after this notice, the plaintiff had
sold and delivered the goods, for which the present action was
brought. \
The defendants called witnesses, who swore that a notice had been
given to the agent of the plaintiff, that the partnership was dissolved.
The agent on the contrary positively swore that he had received no
such notice. n
Lord Kenyon, Ch. J. before whom the cause was tried, told the ju-
ry, that “the cause depended entirely on the credit they gave to the
“witnesses on the one side and the other. The Gazette, he thought,
“was not of itself sufficient notice to the plaintiff of the dissolution
“of the partnership. His Lordship said, he did not say this for the
“purpose of this cause merely, but meant to lay it down as a general
“rule to govern the conduct of all men. Many people there were in
“this kingdom who never saw a Gazette to the day of their deaths, and
“very mischievous would be the consequences, if they were bound"by a
“notice inserted in it. It was incumbent on persons dissolving a
“partnership, to send notice of such dissolution to all the persons
“with whom they had had dealings in partnership.” The jury be-
lieving the defendant’s witnesses, gave a verdict for the defendant.
But a notice in the Gazette of the dissolution of a partnership is a
sufficient notice to all persons who have had no previous dealings with
the firm.
Thus in the case of Godfrey v. Turnbull and another,(i) which was
an action brought by the plaintiff, as indorsee of a promissory note
against the defendants as the makers of it—The defendants had been
partners in trade, but the partnership had been dissolved prior to the
date of the note.
Macauley, one of the defendants suffered judgment to go by de-
fault.
*The other defendant relied upon this circumstance, namely, that
the note was made by the defendant Macauley only, after the dissolu-
tion of the partnership, who had put their joint names on it without
any authority from him.
The note was dated the 6th of Jipril, 1793. On the 19th of the
March preceding, notice of the dissolution of the partnership, dated
the 15th, had appeared in the Gazette.
The question was, whether the notice given in the Gazette was suffi-
cient, so as to exonerate the defendant Turnbull.
Lord Kenyon, Ch. J. said, “In general, if a partner gives a note
“in the partnership name, all the partners are bound by it; and that
“ is the case, even if given after the actual dissolution of the partner-
CHAP. VI.] €f Contracts by Partners. 295
“ ship, if that was not sufficiently notified, and the party who took the
• note, took it on the faith of the partnership name.
“A secret dissolution of a partnership cannot discharge the part- ...)
“ners; but if the dissolution is notified in the ordinary and usual p. 144.
a way, as it is the only mode by which the fact of the dissolution can
“ be promulgated to the world, at least, to those who have had no pre-
“ vious dealings with the partners, it seems sufficient, at least, to be
“ left to the jury from thence to infer notice.
“In many cases, notice in the Gazette is sufficient to subject a party
... to penalties, as in the cases of smuggling and outlawries. So, in
“ the case of bankrupts, notice in the Gazette is sufficient for every
“ purpose. In the present instance, there is no proof of any actual
“ notice to Mr. Godfrey, the plaintiff, but the publication in the Ga-
“zette is proved, antecedent to his taking the note.
“The jury are to judge from the practice in the usual course and
“ ordinary mode of business. Notices are to be found in every Ga-
“zette of the dissolution of partnerships; which seems to point out
“ that as the mode adopted by the world for notifications of this sort,
“ and therefore every prudent man in business ought to consult them.
The jury, under this direction, found a verdict for the defendant,
Turnbull.
[But where after the actual dissolution of a partnership notified in
the Gazette, one of the parties accepted a bill in the name of the firm,
it was held that an indorsee without notice of the dissolution, could
not recover against the other members of the firm, and a distinction
was taken by the court between this case, and the case of goods sup-
plied by a person who had been in the habit of supplying goods to the
firm. Wrighton, et al. v. Pullan, et al. 1 Stark. 375]
4. How Partners must sue and be sued.
Upon a partnership contract or debt, all the partners, or their as-
signees, must sue and be sued; the contract or promise being joint.
And if "one partner only sues upon a joint contract, the action can- # 327
not be maintained ; and the defendant may take advantage of this
omission at the trial, and nonsuit the plaintiff. But in an action for
a tort or wrong this matter can only be taken advantage of by plea
in abatement.(k) (k) Pide 2
The action upon the contract must, however, be brought at the suit i. ; 2
tof such partners only as were in partnership, at the time of making *..." 3 *m
‘the contract.(l) - Rep.433.779.
i. - (t) 1 Esp.
Rep. 182.
296
Of Contracts by Partners. [PART II.
(m) Sitt. at
Gwildhall
Trin. 4 Geo.
III. coram.
Lord JMans-
jield, 1 Esp.
N. P. 117.
(n) 2 Bl.
Rep. 695.
947. 5 Burr.
2613. See al-
so 1 Saund.
291. b. n. 4.
(o) Wide 2
'Term Rep.
476. 3 Term
Rep. 433, 5
Term Rep.
493. 6 Term
Rep. 582.
(14 Johns.
Rep. 318.
17 Johns.
Rep. 80.)
But in the case of Garretv. Taylor(m) where three had employed the
defendant to sell some timber for them, in which they were jointly
concerned ; two of them he had paid their exact proportion, and they
had given him a receipt in full of all demands ; the third now brought
his action for the remainder, being his share; and it was objected,
that as this was a joint employment by three, one alone could not
bring this action : But it was ruled by Lord Mansfield, that where
there had been a severance, as above stated, that one alone might sue.
In actions against partners all of them should regularly be sued ;
though if one be sued alone, he can only take advantage of this omis-
sion by plea in abatement; for if he were allowed to give it in evi-
dence, upon the trial, and so nonsuit the plaintiff, it would be a great
hindrance to justice: for in many cases a creditor does not know all
the partners : particularly a secret one. But when the defendant
pleads in abatement, he must set forth in his plea the names of all his
partners, and the plaintiff is thereby informed against whom he ought
to proceed.(n)
With regard to surviving partners it is a rule, that where one of
several partners dies, an action upon a partnership contract must be
brought in the name of the survivors only : for the executor and the
survivors cannot join, because the remedy survives.(*) And in an
action by or against a surviving partner, the plaintiff may declare
not only for a debt contracted in the life-time of the deceased part-
ner, but also for a debt due to or from the survivor in his own
right.(0)
[Where a surviving contractor sues, the fact of his being survivor
should appear in the declaration. But a party may maintain an ac-
tion against a surviving partner without describing him as such. The
reason is this, that if the partners had been alive, and only one sued,
advantage would only be taken in abatement ; but if one of two joint,
contractors sue, both being alive, that is a good defence upon the
general issue. 4 Barn, and Ald. 374.]
*5. Of the Remedy by Partners upon Contracts, &c. inter se.
Generally speaking, one partner has no remedy at law against his
copartner for any thing relating to the partnership concern, except
upon an express contract or promise made between them ; the only
remedy being in a court of Equity.
mºmºmºs mammºm m'
(*) 2 Salk. 444.
CHAP. VI.] Of Contracts by Partners. - 297
But money paid by one partner to another before the bankruptcy of
the latter, for the purpose of being paid over as his liquidated share
of a debt to their joint creditor, if it be not so applied is proveable
as a debt under the commission of the bankrupt partner, and also re-
coverable against the solvent partner; and if the latter be not called
upon to repay the debt to the joint creditor till after the bankruptcy
of the other ; he may recover from the bankrupt partner his share of
such debt so paid after the bankruptcy to the joint creditor, notwith-
standing he may have obtained his certificate.(p) (p) Wright
v. Hunter, 1
tº tº g ... East's Rep.
So, where ºff. engages as a partner in a particular transaction with 20.
B., C., and D., who were before partners ; B., C., and D., become
bankrupts, after which ºff. pays a debt due from himself and them to
a joint creditor; it was determined that these three partners consti-
tuted but one debtor to fl. and that he might recover from B. the
proportion of B., C., and D., towards the joint debt; B., not having
pleaded in abatement.(q) (q) Wright
v. Hunter, 1
East's Rep.
So, where.A., B., and C., having dissolved partnership, C. after 29.
such dissolution, drew bills in the partnership firm in favour of D.,
he not knowing of such dissolution, upon which D. brought his action
against all the former partners, and C. having pleaded his bankrupt-
cy, D. entered a nolle-prosequi as to him and recovered judgment
against A. and B., which was afterwards satisfied by the attorney of
J. and B, who advanced part, and borrowed the rest of the money on
their joint credit: it was holden, that the sum so paid, in satisfaction
of the judgment, might be recovered in a joint action by 4. an B. (...) Osborne
against C.(r) *.
East’s Rep.
But where fl. and B. are engaged in a partnership in insuring 225. .
ships, &c. which is carried on in the name of A., and 4. pays the * 329
*whole of the losses. Such a partnership being illegal by statute 6 º:".
Geo. I. c. 18., J. cannot maintain an action against B. to recover a Cockburne, 2
share of the money that has been so paid.(3) º *...
bert v. JMaze,
Though, if two persons jointly engage in a stock-jobbing transac- ;: &
tion and incur losses, and employ a broker to pay the differences, 37.s. P.
3 *
and one of them, with the privity and consent of the other, repay the (t) º: and
| g { } & O gº
broker the whole sum, he may recover a moiety from his compan- #.
ion in an action for money paid to his use, notwithstanding the stat- Bart. 3 Term
Rep. 418
ute 7 Geo. II. c. 8, (t) - ś,
Yaikney v.
One partner may maintain an action against his copartner, for mon- §§
ey received to the separate use of the former, and wrongfully carried (v) Smith v.
to the partnership account.(w) #:#.
Woº. I. [38] 47s. “
298 Of Contracts by Partners. [PART II.
But where 4., B. and C., became partners in insuring ships, (con-
trary to the stat. 6 Geo. I. c. 18. s. 12) and it was agreed that the
policies should be underwritten in the name of A. only, several poli-
cies were effected, and the premiums received by C. and D. as brok-
ers: it was determined that d. could not recover those premiums
(), Boºth from C. and D.(v) -
and others v.
Hodgson and
another 6 Where two persons enter into articles of partnership for a term
º Rep. of years, in which is a covenant to account yearly, and to adjust
and make a final settlement at the expiration of the partnership, and
they dissolve the partnership before the term expires, and account to-
gether, and strike a balance which is in favour of the plaintiff, includ-
ing several items not connected with the partnership, and the defend-
ant promises to pay it, an action of assumpsit lies on such express pro-
(w) Foster v.
se.(w)
...Allanson, 2 - * -
Term Rep. . [A bona fide assignment by one of several partners of all his inter-
tºº. est in the joint stock, dissolves the partnership ; although the articles
483. m. a, expressly provide that the partnership shall continue, until two of the
º parties shall require a dissolution. Marguard v. the New-York Man.
p. zºo.) Company, 17 Johns. Rep. 525. -
As to remedies of partners inter se, in equity. See Hammond’s
Digest of Reports in equity. Title Partner, and the cases therein re-
ferred to.]
EVIDENCE.
[1. The plaintiffs must always be prepared to prove their partnership
by writing or parol; except where the defendant pays money into
Court, for this admits a contract with the plaintiffs.
2. If the defendants are sued as partners, the plaintiffs must prove
them jointly interested in the demand. But it will be sufficient to
show that they carry on trade under a joint firm. In case of a dor-
mant partner, distinct evidence must be given as to his interest. If
the plaintiff fails to prove any one of the defendants liable to the sub-
ject of the action, he must be nonsuited, for the contract proved will
be different from that declared on. The plaintiff, however, will be en-
titled to a verdict though it should appear that others were interested,
provided his evidence is sufficient against such as he has made defen-
dants, for advantage of this could only be taken in abatement.
If it appears by the plaintiff's own showing, or by evidence on the
part of the defendant, that there was another jointly interested with
the plaintiff, the plaintiff must be nonsuited.
But it is otherwise in regard to defendants.]
CHAPTER VII.
of own ERs, MASTERs, AND SEAMEN of MERCHANT ships.
THE subject of this chapter may be arranged under the fol-
lowing heads: - -
1. Of the Owner's and Master's liability upon Contracts for repairs
and necessaries, &c. -
2. Of the Owner's liability for Money borrowed by the Master for the
wse of the Ship. -
3, Of Freight.
4. Of Demurrage.
5. Of Passage Money,
7, Of Seamen’s Wages : And,
1. Of the Contract of Hiring.
2. Of the Seamen’s Right to the Whole or Part of his
Wages; and of the loss or forfeiture thereof.
3. Of the time and place of payment of Wages.
4. Of the remedy for the recovery of Wages.
*1 Of the Owner's and Master's Liability for Repairs and Neces. # 331
- saries, &c. -
Upon ageneral contract for repairs done to a ship, it is said,(a) º'
as a general rule, that the shipwright has his election to sue either the stra gig.”
master, who employs him, or the owners ; but if the shipwright un- #. º
dertakes to do the repairs on a special promise from either, the other ep. 89.)
is discharged,
300 Of Owners, Masters, and [PART M.
So, where one of two joint owners conveys his moiety of a ship to
his companion by a bill of sale, which is void by the stat. 26 Geo.
III. c. 60. s. 17. in consequence of some informality in the certificate
of registry not being truly recited in the bill of sale, both the owners
remain liable for repairs done to the ship, notwithstanding the exe-
cution of the bill of sale.(b)
(b) Wester-
dell v. Dale, - tº g tº e e
7 Term Rep. [The ship's register is not evidence of the ownership of the per-
306. son in whose name it stands. He is not liable for repairs made
by direction of the master, as agent for, and on the credit of a purchas-
er, between the time of executing the contract for the sale of the ship,
and the final consummation of it, by the delivery of a bill of sale, but
the person furnishing the repairs must look to the purchaser for pay-
ment, the possession having been delivered and the original owner ex-
ercising no controul over it. Leonard, et al. v. Mc. Carty, et al., 15
Johns. Rep. 298.
The register of a ship is not prima facie evidence to charge a person
as owner, without his assent or adoption. But if he has by any act
of his own recognized the register, he will be liable as owner. 14
East,226.2 Taunt, 5.]
So, where a ship was burnt by accident in the shipwright's dock af.
ter the repairs were nearly finished, the owner was held liable for
so much of the repairs as were actually done at the time the accident
happened.
(c) 3 Burr. . Thus, in the case of Menetone v. Athawes,(c) which was an action
1592. of assumpsit, by a shipwright, for work and labour done, and materi-
als provided, in repairing the defendant’s ship: and the question was,
“whether the plaintiff was entitled to recover under the following cir-
“cumstanees.” .
The ship, being damaged, was obliged to put back in order to be re-
paired ; and she was to have gone out of the dock on a Sunday; but
in the interim, viz. on the day before, and when only three hours work
was wanting to complete the repair, a fire happened at an adjacent
brewhouse, and was communicated to the dock, and the ship was
burnt. It was the shipwright's own dock; and the owner of the ship
had agreed to pay him 5l. for the use of it.
# 632 *The court, after argument, determined, that the plaintiff, was en-
titled to recover for the repairs actually done to the ship.
Of Necessaries.] When a ship is supplied with necessaries(a) by
order of the master, the creditor has, in general, a double security.
—º
(a) The word “necessaries” means such as are necessary and proper for the
vessel upon her voyage, and such as a prudent owner himself, if present, would
order. Webster, et al. v. Seekamp, et al., 4 Barn. & Ald. 352. º,
CHAP. VII.] Seamen of Merchant Ships. - 301
1. The master is personally liable, as making the contract. 2. The
owners are liable, whether they know of the su pply or not, the mas-
ter being considered as acting under their direction and appointment.
The owners, indeed, are liable though they happen to let the ship for
hire to the master, if the creditor is wholly unacquainted with this
circumstance.
Thus, in the case of Rich v. Coe and others,(d) which was an ac- (d) Cowp.
tion of assumpsit for goods sold and delivered. Thomas Rich, the §: ë.
elder, and Thomas Rich, the younger, being ropemakers, did, on the S. P.
21st. of Wovember, 1772, supply the ship Henry and Thomas, with
cables, to the amount of 5l. 8s. 3d. by the order of Thomas Harwood,
the captain ; and made Harwood, and the owners of the ship (the
defendants) debtors, in the usual manner, without naming the own-
ers, or knowing particularly who they were. The ship Henry and
Thomas, was let by the defendants to Harwood upon certain articles,
in which it was mutually covenanted between them as follows: 1st.
The owners covenanted with Harwood, that, on his performance of
the covenants stipulated on his part, he should have the sole manage-
ment of the ship, and employ her for his own sole benefit and ad-
vantage, for the space of eleven years, if he should so long live, and
the ship should not be lost. The Covenants on the part of Harwood,
were, to pay a yearly rent of 36l. per annum, at stated periods; that
he should at all times, at his own cost and charge, repair, maintain,
and keep the vessel, and tackle, rigging, &c. in good and sufficient *...
repair ; that he would not do or omit any thing which might subject
her to be taken, seized, or forfeited ; with a proviso, that in case the
said rent should be in arrear for the space of twenty-one days after
any of the days appointed for payment ; or in case Harwood should
die, or should not in all things fulfil and keep all and singular the
said covenants, &c. then, it should be lawful for the owners to take
possession of the said ship. The case then stated, that neither the
*plaintiff’s testator, nor his partner, had any notice of the contract # 333
at the time they furnished Harwood, the captain, with the goods.
The question was whether the defendants were liable to this debt.
Lord Mansfield, in delivering the opinion of the court, said, “We
“ have considered the case very particularly ; and after the fullest
“ deliberation we think it impossible to say, that the plaintiff is not
“ entitled to recover. Whoever supplies a ship with necessaries, has
“a treble security. 1. The person of the master. 2. The specific
“ ship.(e) 3. The personal security of the owners, whether they (e) Sed Vide
“know of the supply or not. 1. The master is personally liable as ś 24.
“making the contract.—2. The owners are liable in consequence of and ‘inā’ au.
“ the master’s act, because they choose him : They run the risk, and thorities
º * e w there cited.
“they say whom they will trust with the appointment and office of .
“master. Suppose the owners in this case had delivered the value
302 Of Owners, Masters, and [PART II.
“ of the goeds in question in specie to the master, with directions for
“ him to pay it over to the creditors, and the master had embezzled
“ the money; it would have been no concern of the creditors: for they
“trust specifically to the ship, and generally to the owners. In this
“case, the defendants are the owners; and there happens to be a pri-
“vate agreement between them and the master, by which he is to have
“ the sole conduct and management of the ship, and to keep her in
“repair, &c. But, how does that affect the creditors, who, it is ex-
“pressly stated, were total strangers to the transactions P And that is
“an answer to the observation that the plaintiff must have known the
“real situation of the master in this case, from the general usage and
“custom of the country in that respect. To be sure, if it appeared
“ that a tradesman had notice of such a contract, and, in consequence
“ of it, gave credit to the captain individually as the responsible per-
“ son, particular circumstances of that sort might afford a ground to
“say, he meant to absolve the owners, and to look singly to the per-
“ sonal security of the master. But here it is stated, that the plaintiff
“ had no notice whatever of the contract. The owners themselves are
“aware of their being liable at the time. They choose a master to
“whom they agree to let the ship ; and trust for their security to the
“covenants which they oblige him to enter into. These covenants
# 334 “*are, that he shall keep the ship in repair, and deliver her up at the
“end of the term in as good condition as when delivered to him. This
“is not all ; for they indemnify themselves against the private debts
“ of the master, and against his being taken in execution: for, if he
“does not perform all and every the eovenants in the agreement, (ex-
“cept in case of the loss of the ship,) the consequence, besides their
“remedy against him upon the covenant is, that the contract and
“agreement is to be absolutely at an end, and they are to take posses-
“sion of the ship. -
“Suppose the ship had been impounded in the Admiralty Court, and
“that had happened at the end of the term; or, suppose the captain
“ had then broken a covenant, which had put an end to the agreement,
“ the defendants could never have taken the ship out of the court,
“ without paying the debt for which the ship was impounded. We
“are all of opinion therefore, that under these circumstances there is
“no colour to say, that the creditors should be stript of the general
“security they are by law entitled to against the owners.
g “But in order to constitute a demand against the owners, it is nec-
ſ “essary that the supplies furnished by the master’s order should be
“reasonably fit and proper for the occasion, or that money advanced
“ to him for the purchase of them, should, at the time, appear to be
(f) wide 1 “ wanting for that purpose. The contrary in either case would fur-
Term Rep. “nish a strong presumption of fraud and collusion on the part of the
77. Abbotton : & 35
4... “creditor”(f)
122.
CHAP. VII.] Seamen of Merchant Ships. 303
[But, there is no implied undertaking en the part of the owners of
a ship, that a bill of exchange drawn by the master on a third person
for money advanced for the ship’s use abroad, shall be duly honoured :
4 Campbell, 254.]
So, wherever it appears that the credit was given solely to the own-
er, the master is not liable.
Thus, in the case of Hoskins v. Slayton,(g) it appeared, that the (g) Cas.
goods were sails made for the use of a ship; and the evidence was, i. ºne
that the defendant, who is the master of the ship, ordered the sails, • * * * *
and that the plaintiff knew the owner of the ship, and before that had
applied to him that he might make them.
It was objected, on behalf of the defendant, that he was not liable, and
a distinction offered, that where the owners live upon the spot, they
only are liable to pay for the goods delivered for the *use of the ship, * 335
though ordered by the master; but that where the owners live abroad,
there the master is liable as well as they.
But Lee, Ch.J. said, “In general, if the master orders the goods,
“both are liable, the master who gives the orders, and upon whose
“credit the work is done, and the owners in respect of the work being
“ done to their property; for if I, without having given orders, suffer
“a work to be done for me, I must pay for it: but though both are
“ liable in such a case, yet if it appears that the credit was given to the
‘‘ owners only, and that the master in giving orders acted merely as
“ their servant, he will not be liable; and he directed the jury, that if,
“upon the evidence, they thought no credit was given to the master,
“but the owners alone, then they should find for the defendant.” The
jury accordingly found a verdict for the defendant.
So, where an owner ordered goods for the use of his ship before
the appointment of a master, it has been decided, that the master is
not liable, though part of the goods were delivered after his appoint-
ment; no personal credit having been given to him.(h) (h) Farmer
and another
z tº o v. Davies, 1
[So, where repairs are ordered by the consignee in a foreign port, Term Rep.
without disclosing that he acts for the owners, and the work done 108.
upon his credit, without any intention of resorting to the owners;
held, that if in such case any remedy existed at all, it might be test
by such delay in calling upon the owner as would subject him to loss
and inconvenience. James v. Biały, et al. 11 Mass. Rep. 34.]
The mortgagee of a ship is not liable for necessaries furnished pre-
vious to his taking possession of the ship.
304
Of Owners, Masters, and [PART II.
ū,
(8 Johns.
Rep. 123. 2d
: ed.)
|
$ 336
Thus, in the case of Jackson v. Vernon,(i) which was an action for
goods sold and delivered, in which a verdict was found for the plain-
tiff, subject to the opinion of the court, on the following case.
The plaintiff, who was a rope-maker, on the 7th of February, 1787,
and the 22d of July, and 1st of August, 1788, supplied the ship Three
Sisters with cordage and stores, by order of one Palmer, the owner
of her, without the knowledge of the defendant. On the 6th of Feb-
ruary, 1787; Palmer gave a bond to the defendant of 3,000l.; con-
ditioned for the payment of 1,500l., and a warrant of attorney to con-
fess a judgment thereon, which was accordingly entered as of Hilary
Term, 1787; on the same day, Palmer *executed an absolute bill of
sale of the ship to the defendant, in consideration of 1,500l. paid by
the defendant; and also a deed of assignment of various articles of
personal property, and among them a policy of insurance on the ship,
towards payment and satisfaction of the sum of 1,500l. that day lent
and advanced to him by the defendant, which deed of assignment fur-
ther recited, “That whereas to the intent and purpose of better
“securing to the defendant, the said principal sum of 1,500l. and the
“interest thereof, Palmer had by deed-roll, bearing date therewith,
“bargained, sold, assigned, conveyed, and assured to the defendant,
“ the said ship or vessel, &c. to hold to him, his executors, adminis-
“trators, and assigns absolutely, and the said Palmer had likewise
“entered into a bond of equal date therewith in the sum of 3,000l.
“conditioned for the payment of 1,500l. and interest, and had also
“at the same time executed a warrant of attorney for better securing
“the same, and then that indenture further witnessed, and it was co-
“venanted, &c. that the said several deeds and instruments were so
“executed by the said Palmer, for the purpose of enabling the de-
“fendant, his heirs, executors or administrators, either by public sale,
“ or private contract, to sell and dispose of the several matters and
“things, therein respectively comprised, or other the effects of the
“ said Palmer, and thereby to raise, and pay the said sum of 1,500l.
“so lent and advanced, &c., and the interest thereof, without any fur-
“ther or other concurrence, of the said Palmer, his heirs, executors,
“administrators, or assigns, or any of them, at any time before the
“same should be paid off or discharged by the said Palmer, his execu-
“tors, or administrators.” But in this deed there was a covenant,
from the defendant to Palmer, “That in case Palmer should pay
“off and discharge the said principal sum of 1,500l. and interest, &c.
“before the said several matters and things should be sold or disposed
“of, for the purposes aforesaid, that then, and in such case, the de-
“fendant should and would reconvey, and re-assign, the said several
(i) 1 H. Bl. 114. See also Chinnery v. Blackburne, ibid. 117. m. a, et post,
in which it was decided that a mortgagee out of possession is not entitled to the
freight, on the ground of his not being liable to the charges. Sed Wide 7 Term
#ep. 312. and Abbott on Shipping, 16 to 21.
CHAP. VII.] Seamen of Merchant Ships.
“ matters and things, therein before mentioned, in such manner as the
“ said Palmer should reasonably require. And it was thereby also
“ declared and agreed, that nothing therein contained should prevent
“ the defendant from selling, and absolutely disposing of all and every
“ of the said premises, matters, and things, therein before mentioned,
“at any time previous to the full payment of the said sum of 1,500l.
“ with interest,” &c. On the 30th of July, 1788, Palmer assigned
the freight to the defendant. On the 7th of JAugust in the same year,
the defendant took possession of the ship, and received the freight due
to the ewner. On the 22d of the *same month of August, the defend-
ant sold the ship, and gave an indemnity to the purchaser, against
all demands on her, prior to that date.
The question for the opinion of the court was, whether the defend-
ant was liable to pay for the cordage and stores furnished by the
plaintiff, subsequent to the bill of sale and deed of assignment and
defeasance of the 6th of February, 1787 F
Mr. Justice Heath and Mr. Justice Wilson, who were the only
judges present in the court, determined that the plaintiff was not en-
titled to recover against the defendant; he being out of possession at
the time the goods were furnished the ship,
Heath, J. said, “As we both agree in opinion on this question, and
“ have no doubt, it would be wrong to put the parties to the expense
“ of a second argument. This is an action for goods sold and deli-
“vered for the use of the ship Three Sisters, and the question is,
“whether the defendant be such an owner as is liable for the pay-
“ ment P Palmer on the 6th of February, 1787, executed a bill of sale to
“ him, and on the same day another deed, reciting the bill of sale with
“ a defeasance. It has been argued, that this is not a mortgage; but
“ though it is not in the modern form yet it is like an ancient mort-
“gage by deed absolute, with another deed of defeasance; no day of
“payment and re-conveyance is mentioned, because Vernon the de-
“ fendant insisted on having a right to sell the ship when he pleased,
“ on account of the insolvency of Palmer. From the nature therefore
“ of the transaction, and the circumstance attending these deeds,
“ the assignment of the ship to the defendant was in reality a mort-
“gage.
“Then the question is, whether a mortgagee out of possession is
“ answerable for goods furnished for the use of the ship? Now though
“ the owners are bound by the contracts of the captain, he being their
“ agent, yet the mortgagee is not such an owner till he has possession.
# 337
... The case of Rich v. Coe,(k) is only applicable to the present, inas- § JAnte,
“much as there Harwood, who had hired the ship was not liable for
“ necessaries, but was considered merely as the agent for the real own-
* ers. The case of Eaton v. Jaques, Doug. *455. Walker v. Reeves, ibid,
# 338
“461. and Chinnery v. Blackburn,(l) are in point to show, that the () Post, $1.
Wol. I. [39]
306 - Of Owners, Masters, and [PART II.
“ mortgagee out of possession is not answerable for contracts of the
“ mortgagor.”
Wilson, J. “The only question is whether the conveyance to Pernon
“ were absolute, or only by way of security ? No one, I think, who
“ reads these deeds can have any doubt of its being a mere mortgage
“ for a loan of money. Here is a bond for 3,000l. conditioned for
“ the payment of 1,500l. lent by Vernon to Palmer; a warrant of
“ attorney and judgment entered on it; then a conveyance of the
66 ship by a bill of sale, in consideration of the same sum of 1,500l. ;
“ and as a father security, a deed of assignment, with a defeasance
“annexed. In this deed of assignment there is no covenant for a re-
“conveyance ; because as an additional security, Vernon, the defend-
“ant stipulated for a power to sell the ship at any time, without fur-
“ ther leave from Palmer. It was understood by Palmer to be merely
“a pledge for the money due, as he contracted for freight, after the
“conveyance to Vernon; for if that conveyance had been absolute, he
“ could not properly make a contract for freight. On the 7th of flu-
“gust Vernon takes possession, till which time Palmer was the pos-
“ sessor, subject to Vernon’s claim, who was not liable till he had ac-
“tual possession. The owners of a ship are liable for furniture and
“ necessaries, because they receive the immediate benefit of the
“freight; and it is for that reason the contracts of the captain are
“ binding upon them, he being their agent or servant. But the cases
“which have established this to be law, do not affect a mortgagee not
“ in possession, who cannot be considered as an owner, nor as such
“ entitled to the freight. The case of Chinnery v. Blackburne was
“decided on the ground, that as a mortgagee out of possession was
“not liable to the charges of the ship, so he was not entitled to the
“freight.”
[The registered owner of a vessel having chartered her to the then
captain at a rent for a certain number of voyages, is not liable for
stores furnished to the ship by order of the charterer during the char-
ter-party. The captain is not the servant of the registered owner and
therefore the latter is not liable for his act. Frazer v. Marsh, 18 East,
238.]
Wrigh If one of several part-owners contracts for necessaries for the use
ſº ; of the ship, all of them are jointly liable to be sued for the price there-
East's Rep. of (m) If, however, the person who gives credit on such an occasion,
3. po, y does not at the time know that there were other part owners, he may
Chippenden, sue him alone from whom he received the orders.(n) r
cor. Ld. Ken- -
on. Sitt.after g e
#. T. Tºgo. [A negotiable note, given by a part owner of a vessel who was also
"Pon a plea the ship’s husband, for supplies furnished the vessel, discharges the
* other owners from their liability for such supplies. Chapman V. Du-
rant, et al., 10 Mass. Rep. 47. But in New York it was held, that the
CHAP. VII.] Seamen of Merchant Ships.
397
note of one part owner was no discharge of the others, as it did not
appear that the plaintiff knew, at the time, that there were other own-
ers. 7 Johns. Rep. 311.]
--sºme
*2. of the Owner's Liability for Money borrowed by the Master
for the Use of the Ship.
The owner is liable for money borrowed by the captain abroad for
the necessary use of the ship,
Thus, in the case of Evans v. Williams,(o) which was tried before
Lord Kenyon, at Guildhall, where a master of a ship had borrowed
money abroad for the use of the ship. His Lordship held that the
lender might recover against the owners the money laid out upon the
ship ; and this opinion was afterwards confirmed by the Court of
King’s Bench. It was proved at the trial, that the master could not
obtain money on the security of the ship alone, which, in the event that
happened, would have been more beneficial to the owners, because
the ship perished on the voyage home.
So, in the case of Cary v. White,(p) in which a claim was made
upon the owner for money advanced to the master abroad in the
course of a foreign voyage, and which underwent a great deal of dis-
cussion, and seems worthy of particular notice. Sir Humphrey Jer-
vis, who lived at Dublin, being sole owner of a ship lying at Bris-
tol, under the command of S. Symons, and originally intended to be
freighted from thence to Ireland, being disappointed in that voyage,
and informed by Symons that a freight could be got for the West-In-
dies, if he approved of it, wrote to Symons to accept such freight,
and to take up as much money upon bottomry as would fit out the
ship, and provide a stock for port-charges. Symons thereupon en-
tered into a charter-party with Cary, a merchant, at Bristol, for the
hire of the ship for a voyage to the West-Indies, and back to Bristol;
and by the terms of the charter-party the owner was to pay the sea-
men’s wages, and provide all necessaries for the ship ; but Symons,
not being in cash for this purpose, borrowed 200l. upon bottomry, of
Cary, and also obtained a letter of credit from him to his corre.pon-
dents in Jamaica, for whatever money he might further want, either
to repair the ship, or furnish her with provisions, or to pay the sea-
men’s wages, The ship proceeded to Jamaica “and there Symons,
the master, by virtue of Cary’s letter of credit, took up several sums,
amounting to 7891. On the return from Jamaica to Bristol, the ship
was lost. Sir Humphrey Jervis refused to pay Cary the 789l. and
Cary thereupon sued him for the recovery of it in the Court of Chan-
* 339
(o) Sitt. after
Trin. T. 28
Geo. Ill. Ab-
bott, 117.
(p) 5 Bro. P.
C. 325. 8vo.
ed. Abbott,
118.
% 346)
308.
Of Owners, Masters, and EPART II.
* 341
cery, in Ireland, alleging that the money was expended in repairs and
other necessary purposes ; and he dying during the suit, the proceed-
ings were revived, and carried on against his administrators.-The
Lord Chancellor of Ireland, assisted by one of the Chief Justices, and
another Judge, at first decreed that Cary should recover so much of
the money claimed, as, upon a trial at law, should be found to have
been thus expended; but the cause was aſterwards reheard, and the
court declared that Cary was not entitled to any relief. Upon this,
Cary appealed to the British House of Lords, before whom the cause
was heard. On behalf of Cary, it was argued, “That, at common
“law, whatever is done by a servant, which is for the benefit of his
“master and within the trust and duty of his place, binds the mas-
“ter as if done by himself; and in a voyage, the master of a ship
“is the owner’s servant, whose duty requires him to provide necessa-
“ries for the ship, it being the owner’s interest that they should be
“provided; so that whatever the master necessarily takes up and
“employs for that purpose, the owner is bound to pay : and that by
“ the custom of merchants, if the master be supplied with necessaries
“for the ship by the order or credit of any freighter, the owner is lia-
“ble to pay such freighter, and on that ground it is customary for
“freighters to furnish masters of the ships they take to freight with
“letters of credit for whatever money they may happen to want for
“ the necessary service of the ship.”
On the other side it was contended, “That it would be of a most
“dangerous consequence for the master of a ship to charge the per-
“ son or estate of his owner with what money he should take up, on pre-
“tence of providing for the ship, without an express power or author-
“ity for that purpose; for that the law of merchants had never car-
“ried it further than to invest the master with the power of mort-
“gaging or charging, the ship, or cargo with such money; that, in
“ the present case the money could not be laid out by the appellant or
“his factors, upon the credit of Sir Humphrey Jervis, not only because
“he was a total stranger to them, but principally because he had, for
“two years before, failed in his circumstances, and lost his credit:
“nor was, it even ‘pretended that Sir Humphrey ever gave any au-
“ thority to the master to take up money otherwise than on bottomry:
“ that if Sir Humphrey’s person or estate was in all events liable to
“make good this 789l, besides the 200l. advanced on the bottomry
“bond, and which, in ease the ship had returned safe to Bristol, he
“would have been answerable for, he must of necessity have been a
“very great loser, as the ship cost at first but 700l. and her freight
“in that event would not have brought above 600l. ; and therefore, if
* Sir Humphrey himself had been at Jamaica, he never would have
“consented to take up money for preserving that which would have
“been so much to his loss : and that the appellant’s interest in the
- “ship, by having 200l. on bottomry at a large interest, to be paid on
CHAP. VII.] Seamen of Merchant Ships.
sos
“her return, was much greater than Sir Humphrey's ; and ºtherefore
“whatever money was laid out in Jamaica, ought to be considered as:
“laid out on the account of the appellant, but yet to be discounted
“ out of the ship and freight, so far as it would extend, on its return.”
The House of Lords thought the owner personally responsible, if the
allegations of Cary, as to the necessity of the expenditure, were
true; and directed a trial by jury in the Court of Common Pleas, in
Ireland, to ascertain whether any, and what sums of money were ne-
cessarily laid out by, or by the order of Cary, for the payment of
seamen’s wages, provisions, or otherwise for the necessary repairs
and use of the ship during the voyage; and decreed those sums to be
paid to Cary, and directed the Lord Chancellor of Ireland to order
the necessary steps for the trial of the cause. The cause was accor-
dingly tried at the bar of the Court of Common Pleas in Ireland, and
the jury declared by their verdict that nothing had been necessarily
expended for these purposes by, or by the order of, Cary. Cary ap-
plied to the Lord Chancellor, who ordered a second trial, and the
cause was again tried at the bar of the Court of Common Pleas in Ire-
land, before another jury, who gave the same verdict; and the Lord
Chancellor thereupon dismissed Cary’s suit, with costs from the time
of the judgment of the House of Lords. Upon this Cary again ap-
pealed to the House of Lords; but no person appearing before the
House to support his appeal, at the day appointed, the House dis-
missed it with costs. -
*-ºn-
*3. Of Freight.
The contract for the conveyance of merchandize is, in its nature,
an entire contract ; and unless it be completely performed by the
delivery of the goods at the place of destination, the merchant will,
in general, derive no benefit from the time and labour expended in a
partial conveyance, and consequently, be subject to no payment what-
ever, although the ship may have been hired by the month or
week.(q) The cases in which a partial payment may be claimed, are
exceptions to the general rule, founded upon principles of equity and
justice, as applicable to particular circumstances. On the other hand,
an interruption of the regular course of the voyage happening, with-
out the fault of the owner, does not deprive him of his freight, if the
ship afterwards proceed with the cargo to the place of destination, as
# 342
(q) Abbott,
254.
in the case of capture and recapture.(r) In such case, however there (r)3 Rob.
will be a deduction for salvage ; and if the ship were hired by the
Ad. Rep. 101
1 Bos. &
week or month, it may be doubted whether the merchant be chargea- Puli. 637.
ble for the period of detention.(8) But although the delivery of
3 Bos. &
Pull. 420.
goods at the place of destination is, in general, necessary to entitle 431. Abbott,
the owner to the freight, yet with respect to living animals, whether 35.
(s) 3 Bos. &
Pull. 405.
$10
Of Owners, Masters, and [PART II.
(t) Molloy,
b. 2. ch. 4.
sec. 8.
(w) Abbott,
256.
(v) Ibid.
%. 343
(w) Blakey
v. Dickson,
2 Bos. &
Pull. 321.
(a) Molloy,
b. 2. ch. 4
Sec. 3.
(y) Abbott,
256.
(2) Ibid. 257.
(a) Id. ibid.
men or cattle, which may frequently die during the voyage, without
any fault or neglect of the persons belonging to the ship, it is said,(t)
that if there be no express agreement whether the freight is to be paid
for the lading, or for the transporting them, freight shall be paid as
well for the dead as for the living ; if the agreement be to pay freight
for the lading them, their death certainly cannot deprive the owners
of the freight: but if the agreement be to pay freight for transporting
them, then, no freight is due for those that die on the voyage, because
as to them the contract is not performed. These distinctions are
found in the civil law, and adopted by all the writers on this sub-
ject.(u) In this country it is also said(v) to be not unusual to pay
for goods shipped to the East or West-Indies, at the time of the ship-
ment. But this payment, although commonly called freight, is not
strictly or properly so *denominated ; that word denoting the price
rather of actual carriage, than of receiving goods in order to be carri-
ed; and therefore, in a case,(w) before the Court of Common Pleas,
the court, admitting that an action might be brought for money agreed
to be paid for receiving goods on ship-board, in order to be transport-
ed, decided that such money could not be sued for or recovered by
the name of freight. If a pregnant woman be delivered during the
voyage, no freight is due for the infant.(a)
When goods are sent in a general ship, the amount of the freight
is either settled by the agreement of the parties, or by the usage of
the trade. In the case of a charter-party, if the stipulated payment
be a gross sum for an entire ship, or an entire part of a ship, for the
whole voyage, the gross sum will be payable, although the merchant
have not fully laden the ship.(y) And if a certain sum be stipulated
for every ton, or other portion of the ship’s capacity, for the whole
voyage, the payment must be according to the number of tons, &c.
which the ship is proved capable of containing, without regard to the
quantity actually put on board by the merchant.(z) On the other
hand, if the merchant has stipulated to pay a certain sum per cask,
or bale of goods, the payment must be, in the first place, accord-
ing to the number of the casks, or bales shipped and delivered ; and
if he has further covenanted to furnish a complete lading, or a spe-
cific number of casks, or bales, and failed to do so, he must make
good the loss which the owners have sustained by his failure, to be
settled, in case of disagreement, by a jury, who will take all the cir-
cumstances into their consideration.(a) Where a ship hired to go
beyond sea, to fetch home a cargo, for which a certain rate per ton
was to be paid, nothing being payable for the outward voyage, was
forced to return in ballast, the merchant’s factor having no goods to
(b) Westland
v. Robinson,
cited in 2
Vern. 212.
Abbott, 257.
put on board, the court of Chancery decreed payment of the
freight.(b)
car. VII.] Seamen of Merchant Ships. - 311
[But, it is competent to the parties, to a charter-party, to covenant
by express stipulations in such manner as to controul the general
operation of law. As where there is an express stipulation that the
party who is to be entitled to freight shall be paid in advance; and • *
if it be the intention of the parties that the party paying it shall be en-
titled to recover it back, if freight be not earned, there ought to be an
express stipulation to that effect. De Silvale v. Kendall, 4 M. &
Selw. 87. -
But see 3 Johns. Rep. 332.]
If an entire ship be hired, and the burthen thereof expressed in the
charter-party, and the merchant covenant to pay a certain sum for
every ton, &c. of goods which he shall lade on board, but do *not cov- $ 344
enant to furnish a complete lading, the owners can only demand pay-
ment for the quantity of goods actually shipped.(c) (c) Lady
- James v.
- s º East-India.
The owner is entitled to freight on goods delivered to and receiv- Company
Sit. at Gwild-
ed by the merchant at the place of destination, though they happen to , all, after
be greatly damaged by a peril of the sea; and the owner in such case Mich. Term,
is not answerable for the expense incurred in endeavouring to remove º’"
• e º Lord Ken-
the injury occasioned by the salt water.(d) yº. Rºot,
357.
So, in the case of Lutwidge v. Grey,(e), the merchant was held lia- %;,
ble to pay the freight of tobacco, saved from shipwreck, and accepted by £º,
him, although part was so much damaged as to be of no value. §§ºi.
- ned in the
It appears doubtful whether the merchant, in the cases just cited, #. º
was bound to receive the goods thus damaged, or whether he was not Feb. 1733.
at liberty to abandon them when brought to the place of destination, §: Post,
and by so doing to have discharged himself from the freight. It is &
observed,(f) that, upon this question, different doctrines and opinions •
have prevailed, and there is no judicial decision in our books: al- %} º
though in some cases between the merchant and his insurer it has and see the
been admitted that the freight was payable, notwithstanding the goods ..."
were so much damaged that their value fell short of its amount. But there quoted.
it is necessary to distinguish the causes from which the deterioration
may have proceeded. If it had proceeded from the fault of the mas-
ter or mariners, the merchant is entitled to receive a compensation,
and, of course, he is not answerable for the freight, except by way
of deduction from the amount of the compensation. On the other
hand, if it have proceeded from an intrinsic principle of decay natur-
ally inherent in the commodity itself, whether active in every situation,
or only in the confinement and closeness of a ship, the merchant must
bear the loss, and pay the freight; for the master and owners are in
no fault, nor does their contract contain any insurance or warranty
against such an event.
312
Of Oumers, Masters, and [PART II.
|
|
|
|
# 345
(g) Abbott,
269,
(h) Sittings
at Gwildhall
after Mich.
Term. 1801,
coram, Lord
Renyon, cit-
ed in 3 Bos.
& Pull. 295.
exceeding what the said ship could reasonably stow and carry over
[So, in the case of Griswold, et al. v. The New York Insurance
Company, 3 Johns. Rep. 322, it was held that where goods were
carried to their place of destination, though spoiled so as to be of no
value, the owner cannot abandon the goods for the freight, but the
master is entitled to his full freight for the transportation of the goods.
Kent, Ch. J. in delivering the opinion of the court, remarks, that,
“this question had not, hitherto, received a judicial decision in the
English courts and was unsettled in this court.
The contract of affreightment, like other contracts of letting to hire,
binds the shipper personally, and the lien which the ship-owner has
on the goods conveyed, is only an additional security for the freight.
This lien is not incompatible with the personal responsibility of the
shipper, and does not extinguish it. The consideration for the
freight, is the carriage of the article shipped on board, and the state
or condition of the article at the end of the voyage has nothing to do
with the obligation of the contract. It requires a special agreement
to limit the remedy of the carrier for his hire to the goods conveyed.
When the goods are delivered, the condition which was to precede
payment, is then fulfilled. If he has conducted himself with fidelity
and vigilance in the course of the voyage, he has no concern with the
diminution of their value.”]
*In our West-India trade, the freight of sugar and molasses, is
said,(g) to be regulated by the weight of the casks at the port of de-
livery here, which, in fact, is in every instance less than the weight
at the time of the shipment; and therefore the loss of freight occa-
sioned by the leakage, necessarily falls upon the owners of the ship by
the nature of the contract.
If, upon an agreement between the owner and merchant, that the
ship shall sail to a particular port abroad, and there receive and load
a full and complete cargo of goods, the ship sails, and arrives, and is
ready to receive her cargo, but the merchant is prevented from load-
ing her in consequence of a prohibition to export goods, the owner,
notwithstanding such prohibition, is entitled to the amount of freight.
Thus, in the case of Blight and others v. Page,(h) which was an
action upon a memorandum for a charter-party : and by the memo-
randum it was agreed between the plaintiffs, who were owners of the
ship Favourite, and the defendant, that the ship, being tight, &c.
should with all convenient speed sail and proceed to Liebau, or so
near thereto as she could safely get, and there load, from the factors
of the defendant, a full and complete cargo of barley, in bulk not
and above her tackle, &c. and being so loaded, should therewith pro-
ceed to Berwick, or so near thereto as she could safely get, and de-
CIIAP. VII.] Seamen of Merchant Ships,
liver the same, on being paid freight at and after the rate of 8s. 6d.
per quarter, with two-thirds port charges, and pilotage as customa-
ry, (restraints of princes and rulers during the said voyage always
excepted,) one-half of the frcight to be paid on unloading and right
delivery of the cargo, and the remainder in two months following:
Thirty running days to be allowed the said merchant, if the ship was
not sooner dispatched, for loading the said ship at Liebau, and un-
loading at Berwick, and ten days on demurrage, over and above the
said laying days, at Sl. per day.
The Favourite sailed on her voyage, and proceeded to Liebau ; but
immediately on her arrival in the roads of that place, the captain
*was informed by the factors of the defendant, that the Russian gov-
ernment had prohibited the exportation of barley, and that it was
therefore out of their power to furnish the intended cargo. The cap-
tain, however, entered the port of Liebau, and after continuing there
forty-nine days, returned in ballast to Berwick.
The action was brought to recover 459l. for freight, 271. 18s. for
charges, and 30l. for ten days demurrage.
In support of the action it was argued, by the plaintiff’s counsel,
that the exception of the restraints of rulers and princes was only ap-
plicable to the owners, and did not therefore excuse the shippers.
For the defendant it was urged, 1st. That the exception was ap-
plicable both to owners and shippers : and 2d. That as the prohibition
of the Russian government equally prevented the captain from sailing
with the cargo, as the shippers from loading it on board, the averment
in the declaration that the plaintiffs were ready to perform their part of
the contract, was not true: and, 3d. That there was no pretence for
demanding demurrage, since it was the fault of the captain himself to
remain at Liebau after the notice which he had received.
Lord Kenyon, Ch. J. said, “I am decidedly against the defendant
“upon the point of law. It is said in Co. Lit. 209. that if a man be
“bound in an obligation to A., conditioned to enfeoff B., a stranger, and
“ B. refuse, the obligation is forfeited ; for the obligor has taken upon
“ him to make the feoffment. The reason of this is clear : if a man
“undertakes what he cannot perform, he shall answer for it to the per-
“son with whom he undertakes. I am always desirous to apply the
“settled principles of the law to the regulation of commercial deal-
“ings. With respect to the charge for demurrage, as it appears that
“notice was given before the captain entered the port that the factor
“could not furnish a cargo, there is no pretence for making the plain-
“ tiff's liable.”
A verdict was accordingly entered for the plaintiffs for 486l. 18s.
for the freight and charges only.
But, if a British merchant charter a Swedish ship, on a voyage to
St. Michael’s, for a cargo of fruit, and the charter-party contain the
VoI. I. [40]s
314
of Owners, Masters, and [PART II, -
# 347
(i) Touteng
and another
v. Hubbard,
2 Bos. &
Pull. 291.
(k) Abbott,
274.
(2 Johns.
Rep. 323.)
(l) Ibid, 276.
(m) Deter-
mined in the
House of
Lords, 23d
Feb. 1733,
Abbott, 280.
This case is
also cited in
Lwke v. Lyde,
2 Burr. 882.
and 1 Bl.
Rep. 190.
* 348
usual exception against the restraint of princes, and the ship be pre-
vented from reaching St. Michael's within the fruit-season, by an
embargo laid on Swedish vessels by the British government, *the
Swedish owner cannot, by proceeding on the voyage after the embar-
go is taken off, entitle himself to recover the freight against the Bri-
tish merchant.(i)
1. Of the apportionment of Freight.] An apportionment of freight
is usually made in two instances, first, when the ship has performed
the whole voyage, but has brought a part only of the merchant’s goods
in safety to the place of destination; and, secondly, when the ship
has not performed the whole voyage, but the master has delivered the
goods to the merchant at a place short of the port of destination.(K)
When the ship, by reason of any disaster, goes into a port short of
the place of destination, and is unable to prosecute and complete the
voyage, the master may, if he will and can do so, hire another ship to
convey the goods, and so entitle himself to his whole freight: but if
he is unable, or if he declines to do this, and the goods are there re-
ceived by the merchant, the general rule of the maratime law is, that
freight shall be paid according to the proportion of the voyage per-
formed, pro rata itinerisperacti,(l) \
In the case of Lutwidge v. Grey,(m) it appeared that Lutwidge,
the owner of a ship called the Wharton, of Whitehaven, let his ship
by a charter-party to Archibald Grey, and others, merchants at Glas-
gow, for a voyage from Glasgow to Maryland or Virginia, and back
from thence to Glasgow, and was to receive freight from them for the
homeward cargo only, at the rate of 8l. 12s. per ton of tobacco, compu-
ting four hogsheads to the ton; one-half to be paid immediately after
the ship’s discharge at Glasgow, and the other half within six
months after such discharge. The ship sailed to Virginia, and
there delivered her outward cargo, and took on board, from the
merchant’s factor, a cargo of tobacco, consisting of 199 hogsheads,
part of which was their property; the residue belonged to other per-
sons, and was put on board by the factor to complete the lading, in
pursuance of directions given to him for that purpose by his princi-
pals, in case the outward cargo should not enable him to purchase a
full lading on their “account. Grey and Co. insured their part of
the cargo with persons living at Bristol; the other part was not
insured. On the return homeward, the ship was unfortunately cast
away at Poughall, in Ireland, which is within a very short distance
of Glasgow, and part of the cargo, to the amount of 163 hogs-
heads, was saved by the assistance of the officers of the customs at
Foughall, and deposited in the custom-house there. Lutwidge, the
owner, as soon as he knew of the misfortune, informed Grey and
CHAP. VII.] Seamen of Merchant Ships.
Co. of it, and told them he should provide another ship to transport
the tobacco which was saved. Grey and Co. abandoned their part of
the cargo to their ensurers, and endorsed over the bills of lading to
them. Lutwidge provided another ship at Youghall, but the ensur-
ers took the part of the cargo abandoned to them, and conveyed it
to Bristol—The agent of the proprietors of the other part of the
cargo was willing to have laded it on board the ship thus provided,
if the master thereof would sign bills of lading to deliver it at Glas-
gow, in conformity with the original charter-party ; but the maste"
refused to give such bills of lading, or to oblige himself to deliverit at
Glasgow, offering only to give receipts, obliging himself to deliver it
in Great Britain. And the agent suspecting that he meant to take
it to Whitehaven, and not to Glasgow, refused to deliver it to him
upon those terms, and sent it by another vessel to Glasgow, where
several hogsheads were found so much damaged, that they were not
entered at the custom-house, but burned at the king’s scales there.
Lutwidge brought an action against Grey and others, for his freight
according to the charter-party, in the Court of ſidmiralty in Scotland.
On their part it was insisted that the contract of affreightment was
dissolved by the shipwreck, and that there remained only a demand
in equity for freight; that the demand could not be made against
them, who had not taken the goods into their possession, but must be
made for part against the ensurers at Bristol, and for the residue
against the proprietors of that residue : that this demand could only
be in proportion to the value of the goods saved, after deduction of
salvage and charges; and that at all events it could only be for the
proportion of the voyage to Youghall, because the master of the ship
refused to sign bills of lading, and engage to deliver the tobacco
at Glasgow. The Judge of the court of Admiralty decreed, that the
full freight was due from Grey and Co. for the part of the cargo saved,
but none for the part lost, and that the full freight was due, although
the goods were not carried to Glasgow, because Lutwidge had an-
other *ship ready to transport them thither, and there was no occa-
sion for any new bills of lading, while the former bills of lading sub-
sisted. From this judgment Grey and Co. appealed to the Lords of
Session in Scotland, who, by their interlocutory decreed, “That the
“contract of affreightment was dissolved by the total loss of the
“ ship, albeit some of the shipwreck goods were saved out of the
“shipwreck; and found that the freighters indorsing the bills of lad-
• ‘ing to the insurers did not subject the freighters to any freight for
“the goods recovered by the insurers, but found the merchants liable
“to the freight pro rata itineris of such of the goods as were brought to
“ Glasgow, notwithstanding some of the tobacco was found damnified,
“ and burned there.” This decree, or interlocutor, was, upon the
petition of Lutwidge, reviewed by the Lords of the Session, but af.
firmed by them. Hereupon Lutwidge appealed to the highest tribu-
* 349
Of Owners, Masters, and [PART II.
(n) 2 Burr.
882. 1 Bl.
Rep. 190. S.
C. Abbott,
283.
(0) The form
of action.
though not
mentioned in
the report
is ascertained
to be as here
mentioned.
Pide Abbott,
290.
*
$;
º
J
50
nal of the country, The British House of Lords ; the House of
Lords “ Reversed the decree or interlocutor of the Lords of Ses-
... sion, complained of by the appellant, and the affirmance of that
... interlocutor: and declared, that the respondents, Grey and others,
“ were liable for the full freight of such of the goods as were given up
“ to the ensurers, and for the freight pro rata itineris of such of the
... goods as were brought to Glasgow, notwithstanding some of the to-
... bacco were found damnified, and burned there.”
So, in the case of Luke and another v. Lyde,(n) which was an ac-
tion of assumpsit(0) for the freight of goods carried in the plaintiff’s
ship by sea, without mentioning from or to what place. The facts
of the case were these: Lydeshipped a cargo of 1501 quintals of fish,
at Newfoundland, on board the ship Sarah, belonging to Luke and
others, to be carried to Lisbon ; the freight was to be at the rate of
two shillings per quintal. The price of the cargo at Newfoundland
was ten shillings and six-pence per quintal. Luke and others also
had on board a quantity of fish, their own property. The ship set sail
on the 27th of November, 1756, and having proceeded seventeen days
on her voyage, was taken on the 14th of December by a French ship,
within four days sail of Lisbon, but retaken "on the 17th of Decem-
ber by an English privateer, and brought, on the 29th, into the port of
Biddeford, in Devonshire. The French ship took out the master and
all the crew, except one man and a boy. Lyde took his goods of the
recaptors, and paid five shillings per quintal salvage, the value of the
fish being then estimated at ten shillings per quintal. The fish could
not be sold at all at Biddeford, nor at any other port in England, for
more than ten shillings per quintal, clear of charges and expenses;
and it was supposed by every person that the fish would be dis-
posed of to the greatest advantage at Bilboa in Spain, to which
place Zyde sent it without delay ; but it fetched there only five
shillings and six-pence per quintal, clear of freight and expenses, be-
ing little more than one third of the prime cost and salvage. The
freight from Biddeford to Lisbon was higher than from Newfound-
land to Lisbon. The owners, Luke and others, abandoned the ship
to their insurers, and never offered to convey the goods to Lisbon, nor
were ever required to do so by Lyde the merchant. The court de-
cided, that the plaintiffs should recover freight, as for half the quan-
tity of the cargo shipped, considering the other half to be absolutely
lost by the expense of salvage, and in the proportion of seventeen
days, during which the ship had proceeded on the voyage, to twenty-
one days, within which the voyage would have been completed, if the
capture had not happened, that is, 60l. 14s, being 17-21 of 75l., the
half of 150l. And Lord Mansfield said, “If a freighted ship becomes
“ accidentally disabled on its voyage, without the fault of the master,
“ the master has his option of two things; either to refit it, (if that
CHAP. VII.] Seamen of Merchant Ships.
317
... can be done within convenient time,) or to hire another ship to car-
“ry the goods to the port of delivery. If the merchant disagrees to
“ this, and will not let him do so, the master will be entitled to the
“whole freight of the full voyage ; and so it was determined
“ in the House of Lords, in the case of Lutwidge against Grey.
“ As to the value of the goods, it is nothing to the master of
& the ship whether the goods are spoiled or not, provided the freight-
“er takes them : it is enough if the master has carried them:
“ for by doing so he has earned his freight ; and the merchant
“shall be obliged to take all that are saved, or none : he shall not take
“ some and abandon the rest, and so pick and choose what he likes,
“ taking that which is not damaged, and leaving that which is spoil-
“ed or damaged. If he abandons all, he is excused freight: and he
“may abandon all though they are not all lost. (I call the freighter
“ the merchant, and the other the master, for the clearer distinction.)
“ *Now here is a capture without any fault of the master, and then a
“recapture ; the merchant does not abandon, but takes the goods, and
“ does not require the master to carry them to Lisbon, the port of
“ delivery. Indeed, the master could not carry them in the same
“ ship, for it was disabled, and was itself abandoned to the ensurers
“ of it ; and he would not desire to find another, because the freight
“ was higher from Biddeford to Lisbon than from Newfoundland to
* Lisbon. There can be no doubt but that some freight is due ; for
“ the goods were not abandoned by the freighter, but received by him
“ of the recaptor. The question will be, What freight P. The an-
“swer is, a rateable freight; i. e. pro rata itineris.
“If the master has his election to provide another ship to car-
“ry the goods to the port of delivery, and the merchant does not
“even desire him to do so, the master is still entitled to a proportion
“pro rata, of the former part of the voyage. I take the proportion of
“ the salvage here to be half of the whole cargo upon the state of the
“case, as here agreed upon : and it is reasonable that the half here
“paid to the recaptor should be considered as lost. For the recaptor
“ was not obliged to agree to a valuation, but he might have had the
“goods actually sold, if he had so pleased, and taken half the pro-
“duce ; and therefore the half of them are as much lost as if they re-
“mained in the enemy's hands. So that half of the goods must be
“considered as lost, and half as saved. Here the master had come
“ seventeen days of his voyage, and was within four days of the des-
“tined port when the accident happened. Therefore he ought to be
“paid his freight for 17-21 parts of the full voyage, for that half of the
“cargo which was saved.”
His Lordship after citing most of the authorities on this subject
concluded thus : “It is quite immaterial what the merchant made of
“the goods afterwards; for the master hath nothing at all to do with
“the goodness or badness of the market; nor indeed can that be pro-
% 351
Of Owners, Masters, and [PART II.
%. 352
(p) Park on
Insurance,
chap. 2. Ab-
bott, 288.
(g) The Co-
penhagen
JMening, 1
Rob.
Ad.
Rep. 289.
See also Ab-
bott, 289. S.
C.
(r) 7 Term
Rep. 381.
§:
3
5
3
“perly known till after the freight is paid ; for the master is not
“bound to deliver the goods till after he is paid his freight. No sort
“ of notice was taken of that matter in the case of Lutwidge and
“Grey, in the House of Lords ; and yet there the tobacco was dam-
“aged very greatly, even so much that a great part of it was burnt at
“ the scales at Glasgow.”
*So, in the case of Bailie v. Mondigliani,(p) where it appeared that
a ship sailed with goods from Nevis for Bristol, but on the voyage
was taken and carried into France, and condemned there. On ap-
peal, the sentence of condemnation was reversed, and restitution
awarded, but before that time the ship and cargo were sold. The
merchants received the price of the goods, and paid freight to the
master pro rata itineris ; and having caused the goods to be insured
before the commencement of the voyage, brought an action against the
ensurers to recover from them the freight so paid to the master. The
court held, that this payment could not be recovered upon this insur-
ance. But Lord Mansfield said, “As between the owners of the
“ship and cargo in case of a total loss, no freight is due ; but as be-
“tween them no loss is total, where part of the property is saved
“ and the merchant takes it to his own use. In this case the value
“of the goods was restored in money, which is the same as the goods,
“ and therefore freight was certainly due pro rata itineris.”.
But, in the case of a Swedish ship,(p)which being chartered to go
from Plymouth to Radstow, (a very small distance,) there to take a
cargo of pilchards for Venice, sailed to Radstow, and took in the cargo
and proceeded a few days on the voyage : but, meeting with bad
weather, and becoming leaky, returned to Falmouth, and was there
stopped by an embargo imposed on the vessels of Sweden, in conse-
quence whereof the cargo was taken out and restored to the merchants,
who were British subjects; the learned Judge of the Court of Ad-
miralty decreed, that no freight was due, but held that if any expen-
ses had been incurred by the ship on account of the cargo, they must
be paid.
In the case of Cook v. Jennings,(r) which was an action of covenant
on a charter-party of affreightment dated 2d of dugust, 1796, by
which the plaintiff let his ship, the Resolution, to the defendant to
freight from Liverpool to Wyburgh, and back to Liverpool, and agreed
that the master should take on board a cargo of salt to Wyburgh, and
after delivering the same there, should take on board there a cargo of
deals: in consideration of which the defendant *agreed to pay to the
plaintiff, “in full for the freight and hire of the ship for the said voy-
is age, at and after the rate of 71 per standard hundred for deals de-
“ livered at Liverpool, &c. the freight to be paid one-fourth in cash on
CHAP. VII.] Seamen of Merchant Ships,
319,
“ her arrival, and the remainder by an acceptance on London at four
“ months date.” The plaintiff in support of his action alleged, that
the ship, after carrying the cargo of salt to Wyburgh, took on board
there a cargo of deals, &c. and proceeded on her voyage for and to-
wards Liverpool, &c.; and whilst the ship was so proceeding, and,af-
ter she had performed a great part of her voyage, but before her arrival
at Liverpool, the ship was, by the force and violence of the winds an
waves, wrecked and cast upon the shore, and thereby became incapable:
of proceeding any further on the voyage, by reason whereof it became
necessary to put the cargo of deals on shore for the preservation
thereof; “ which said cargo so unladed the defendant accepted and
“ received into his hands and possession, and sold and disposed of
“ the same to his own use, whereby he became liable to pay to the
“plaintiff a proportionable part of the said freight and hire of the ship
“for the carriage of the said cargo of deals, for such part of the voy-
“age from Wyburgh to Liverpool as the ship performed ;” which
proportionable part amounted to the sum of 800l.; and for the re-
covery of that sum the action was brought. *
These facts were admitted to be true, and it was admitted that no
part of the cargo was conveyed to Liverpool. The plaintiff did not
pretend that he had offered to convey the deals thither, nor did the
defendant assert that he had required him to do so. The court of
King's Bench decided, that the plaintiff could recover nothing in the
present action. Lord Kenyon, Ch. J. said, “We are called upon to
“ decide in this action according to the rules of law, on a contract be-
“tween these parties, which was made in the most solemn manner
“ by a deed under seal; though, indeed, I do not know that it would
“ have made any difference, if the question had arisen on a precise
“formal contract not under seal. By the terms of this agreement
“ the defendant engaged to pay so much on delivery of the goods at
“Liverpool, one-fourth in cash on her arrival, and the remainder by
“an acceptance at four months: but the goods never arrived ; then
“ at what time were those bills to be dated P. We do not sit here to
“make, but to enforce contracts: and the question put to us is,
“whether the freight is to be paid under this contract, though the
“ ship never arrived, but was lost *before her arrival at Liverpool 2
“Upon which I cannot bring my mind to doubt. The case of Luke v.
“ Lyde is very distinguishable from the present, that being the case
“ of a general assumpsit for the freight of goods, in which Lord Mans-
“field states the marine law on this subject. But what has the case of
“an implied contract to do with an express contract P Lord Coke
“says, expressum facit cessare tacitum. Here the parties are bound
“by a precise agreement. Then it is suggested, that we ought not to
“give effect to this contract, because it is unreasonable: but we are
“ to decide according to the centract of the parties; and the law says,
“that if 4 covenant to enfeoff B, 4.is not released from his covenant,
# 354
320
Of Owners, Masters, and [PART II.
“ though B. will not accept livery of seisin, unless the act be frustra-
“ted by the act of the covenantee. It is not necessary now to deter-
“mine whether or not the plaintiff might not have brought an action
“ of assumpsit ; it will be time enough to decide that case whenever
“ the guestion arises.—But here the question is, whether or not he
“an enforce payment of the money under this contract, not having
“karried the goods to Liverpool, and the defendant having only un-
#dertaken to pay on their delivery at Liverpool ; in answer to this
, “action the defendant has a right to say, non haec in foedera veni.”
(s) 1 Brownl.
21. But see
Abbott, 294.
(t) 1 Bos. &
Pull. 634.
See also Ab-
bott, 296.
The other judges concurred in the same opinion ; Mr. Justice
Grose cited the case of Bright v. Cowper,(s) as a direct authority
against the plaintiff.
Lawrence, J. said, “I agree with the plaintiff’s counsel, that whe-
“ther the contract be parol or under seal, the operation of the law on
“it is equally the same. When a ship is driven on shore, it is the du-
“ty of the master either to repair his ship or to procure another: and
“having performed the voyage, he is then entitled to his freight: but
“he is not entitled to the whole freight, unless he perform the whole
“voyage, except in cases where the owner of the goods prevents him;
“nor is he entitled pro rata unless under a new agreement. Perhaps
“the subsequent receipt of these goods by the defendant might have
“been evidence of a new contract between the parties: but here the
“plaintiff has resorted to the original agreement, under which the de-
“fendant only engaged to pay in the event of the ship’s arrival at
“Liverpool. That event *has not happened and therefore the plain-
“ tiff cannot recover in this form of action.”
As the right of freight does not commence until the ship has bro-
ken ground and begun the voyage, no partial payment can be claimed
for goods laden on board, if even without the fault of the master, the
ship is prevented from actually setting forth on the voyage.
Thus, in the case of Curling v. Long,(t) where a ship, which took
on board a cargo in Salt River in Jamaica, at a very great expense
to the owners, (who by the usage of the West India trade fetch the
cargoes from the shore at their expense,) actually cleared out for the
voyage, but while waiting for convoy, was cut out of the river by two
French privateers, and being afterwards retaken was carried into Port
Royal, where the cargo was sold under an order of the Court of ſld-
miralty, and the proceeds thereof, with the deduction of salvage, paid
to the merchants. It was decided that nothing could be claimed of
the merchants, although each of the Judges expressly recognized the
rule of the marine law as to the apportionment of freight pro rata
ilineris; the court holding, that in this case there had been no com-
mencément of the voyage, and therefore no freight could be due ; and
that as the freight was by the contract the only remuneration of all
CHAP. VII.] Seamen of Merchant Ships. 321
the services performed by the owners, they were not entitled to any
recompense for the expense of taking the goods on board.
[So, a hostile blockade of the port of departure, held not to dis-
solve the contract of affreightment ; the master or owner may detain
the goods until he can safely proceed on the voyage, the performance
of it being suspended. The freighter may demand his goods on ten-
dering full freight. Palmer v. Lorillard, 16 Johns. Rep. 348. 18
Johns. Rep. 87.
But, by the blockade of the port of discharge, the charter-party
is dissolved and all claim to freight is gone. The freighter is enti-
tled to receive his goods without even paying pro rata freight. 15
Johns. Rep. 14–20, 17 Johns. Rep. 72.]
It is observed,(v) that it often happens that a ship is hired by a char- (‘). Abbott,
ter-party to sail from one port to another, and from thence back to the (is Johns,
first, as for instance, from London to Leghorn, and back from thence Rep. 332.)
to London, at a certain sum to be paid for every month, or other peri-
od of the duration of the employment. Upon such a contract, if the
whole is one entire voyage, and the ship sail in safety to Leghorn,
and there deliver the goods of the merchant, and take others on board
to be brought to London, but happen to be lost in her return thither,
nothing is due for freight, although the merchant has had the benefit
of the voyage to Leghorn; but if the outward and homeward voyage
are distinct, freight will be *due for the proportion of the time em- # 356
ployed in the outward voyage.
Thus, in the case of Mackrell v. Simond and Hankey,(u) which was (º) K. B.
an action of covenant on a charter-party. In the first count of the Trin. T. 16.
declaration, the plaintiff claimed freight for the period of the voyage ‘. #. Abs
to Grenada; in the second up to the day of the loss of the ship. The
facts, as they appeared upon the declaration, were these : Mackrell,
the owner of the ship the Richard, lying in the river Thames, let his
ship to freight by a charter-party, dated 9th of March, 1774, to Si-
mond and Hankey, by the month, “for such time as she should be
“employed in performing a voyage from London to Plymouth, and
“the island of Grenada, and from thence back to London,” and where-
by the plaintiff covenanted, “that the ship should, pursuant to the or-
“der and directions of the freighters, their factors or assigns, prose-
“cute and perform the voyage above mentioned, (the dangers and
“perils of the sea, and the restraint of princes and rulers excepted,)
“ and should in such outward and homeward voyage load and unload
“all lawful goods;” and “that his ship’s company and boats should
“aid and assist in unloading and reloading the said ship's cargoes, as
“customary at the island of Grenada, and that he would pay all port
“charges and pilotage.” In consideration whereof the defendants co-
Vol. I. [41]
322
6f Owners, Masters, and [PART II.
# 357
venanted, “that they would load and unload the ship, and give the
“master proper orders in respect thereof: and that the ship should
“be discharged out of her said monthly employ on the delivery of her
“homeward cargo in London, and also should and would well and
“truly pay or cause to be paid to the said owner, his executors, ad-
“ministrators, or assigns, in full for the freight and hire of the said
“ship, at the rate of 110l. sterling, per calendar month, for all such
“ time as the said ship should be taken up in performing the voyage
“aforesaid ; to commence and be accounted from the day of the date
“ of the said charter-party, and to end and determine on the day of
“ the discharge of the homeward cargo at London, and to be paid one-
“ third part thereof on her report inwards, at the custom-house, Lon-
“don, and the remaining two-third parts thereof, in two calendar
“ months then next following.” -
In pursuance of this charter-party the ship took in goods belonging
to the merchants Simond and Hankey at London, sailed with *them
to Plymouth, and there took in other goods also belonging to them,
and from thence proceeded to Grenada, and there landed the cargo ;
and received another cargo from the merchant’s factor there, with
which she set sale for London ; but on the way was lost by tempest.
The voyage to Grenada occupied three months ; and five months
elapsed in the whole before the loss of the ship.
After the misfortune the owner brought an action against the mer-
chants, claiming of them the payment of freight either for three or for
five months, which made the difference between the first and sec-
ond counts. The defendants demurred to both counts, insisting
that nothing was due. The court, however, decided that freight was
payable for three months, the period of the outward voyage ; and
judgment was accordingly given for the plaintiff on the first, and for
the defendants on the second count. Lord Mansfield delivered his judg-
ment to the following effect: “This question depends upon the con-
“struction of the charter-party. If the parties have expressed their
“meaning defectively, the court must be guided by the nature of the
“thing. The charter-party puts no case but that of a prosperous
“voyage out and home; it provides for freight on the supposition
“ that the ship will arrive safe and report her cargo ; no provision is
“made for any other case. If the ship be cast away on the coast of
“England, and never arrive at the port of London, yet if the goods
“are saved, freight shall be paid, because the merchant receives ad-
“vantage from the voyage. This is not expressed by the charter-
“party, but arises out of the equity of the case. Freight is the mother
“of wages, the safety of the ship the mother of freight: that is the
“general rule of the maritime law. If there be one entire voyage
“out and in, and the ship be cast away in the homeward voyage, no
“freight is due, no wages are due ; because the whole profit is lost,
“and by express agreement the parties may make the outward and
Chap. VII.] Seamen of Merchant Ships.
323.
“homeward voyage one. Nothing is more common than two voy-
“ages ; wherever there are two voyages, and one is performed, and
“the ship is lost in the homeward voyage, freight is due for the first.
“Here the outward and homeward voyage are so called in the char-
“ter-party. The cargo is loaded outwards, and the owner covenants
“to pay port charges on the outward voyage. The whole of that
“voyage was completed : port duties are incurred and paid.—Noth-
“ing however is due on the homeward voyage, though the ship might
“be out a month.”
*But in the case of Byrne and others v. Pattinson,(w) the words
of the charter-party being different, a different construction prevailed.
Pattinson, master and part-owner of the ship William and Mary, ly-
ing at Liverpool, by a charter-party, dated 28th of July, 1794, let the
ship to freight to Byrne and others, for a voyage intended to be made
from Liverpool to the island of Madeira, and from thence to the island
of Barbadoes, and from thence back to Liverpool, Greenock, or Bris-
tol, but with liberty for the freighters to order the said vessel from
Barbadoes to any one other island in the West-Indies, (Jamaica ex-
cepted) they paying all pilotage, and port charges incurred thereby.—
And the said freighters accordingly by the said charter-party took and
hired the same in manner following, (that is to say,) “ that the master
“should immediately receive and take a cargo on board the said ves-
“sel from the freighters, and the said vessel soladen should immediate-
“ly proceed directly to Madeira, and deliver such goods as should be
“ ordered by the said freighters, and also should receive and take on
“board the said vessel at Madeira, such other goeds as the said freight-
“ers might think proper to ship, and that being done, the master should
“proceed with the said vessel to Barbadoes, and there make delivery of
“her cargo, and receive and take on board a cargo from the freighters,
“ and being loaded therewith, should with the first opportunity proceed
“directly to the port of Liverpool, Greenock, or Bristol, and there de-
“liver the same cargo, and so end the said intended voyage.” In
consideration of which the said freighters thereby promised and
agreed, amongst other things, “to pay to the defendant, in full for the
“freight and hire of the ship for the said voyage, the sum of 1861. 10s.
“ per callendar month for six months certain, to commence in eight
“ days after she was ready to receive the cargo at Liverpool, Gree-
“nock, or Bristol, together with two-thirds the amount of all pilotage
“ and port charges that might accrue, and be paid during the course
“ of the said voyage, with customary primage; payment thereof to be
“made in manner following, viz. 136l. 10s. to be advanced before the
“ sailing from Liverpool, by a good bill at three months’ date, and
“what cash might be required for the said vessel’s disbursements and
“ port charges at Madeira and Barbadoes, to be paid in part of the
“ said freight, and the remainder of the said freight should become due
%. 358
(w) K. B.
Trin. T. 37.
Geo. III. Ab-
bott, 301.
(2 Barn. &.
Ald. 17.)
€f Owners, Masters, and [PART II.
%. 359
**and be paid on the final discharge of the said vessel at Liverpool,
“Greenock, or Bristol, by good bills on London at three months’
“ date.” The period of computation commenced on the 7th of flu-
gust, 1794; on the 19th of that month the ship sailed from Liverpool
for Madeira, freighted with goods, and arrived there on the 19th of
September, and discharged at that place by the 4th of October, as many
of the goods as were to be delivered there, and took on board on ac-
count of the merchants ninety pipes of wine, and sailed from thence
(c) Page 98,
(y) Doug.
104. Abbott,
228. 259.
# 360
(g) Abbott,
259.
on the 9th of October, for Barbadoes, but on the 10th of November was
captured on the way thither. The merchants had paid 135l. part of
the freight for the first month, and also the port charges and disburse-
ments for the ship at Madeira. Pattinson now claimed in the present
suit further freight from the 7th of September to the day of the ship’s
capture, or to the day when she had completed the delivery at Madei-
ra, or freight for the goods delivered there at the usual rate of con-
veyance, allowing the 135l. But the court held, that he had no claim
whatever. On his part it was contended, that there ought to be an
apportionment in this case ; and a passage cited from Malyne,(a) re-
lating to a ship lost at Dover, was quoted as an authority in his fa-
vour. But Lord Kenyon, Ch. J. said, “In that case the goods came
“ to the merchant’s hands, and the owner of the ship might have pro-
“vided another ship to carry them to London. In this case, by the
“ terms of the contract, the freight is to become due at Liverpool, and
“ therefore it cannot be claimed before.”
2. Of the Payment of Freight, and against whom it is recoverable,
&c.] The time and manner of payment of freight are frequently
regulated by express stipulations in a charter-party, and when that is
done, the payment must be according to the agreement. But if there
be no express stipulation, the goods conveyed generally remain as se-
curity until the freight is paid ; for the master is not bound to deliver
them without payment :(y) and if by the regulations of the revenue
the goods are to be landed and put into the King's warehouse, if the
duties are not paid, the master may enter them in his own name, and
thereby preserve his lien. And as he has this power to enforce pay-
ment, so it very often becomes his duty to exercise it ; for where
goods are consigned by one merchant to another it might often be
highly prejudicial to the consignor to be called upon *at the ship's re-
turn to pay the freight, which he had reason to expect the master
would obtain from the consignee.(2) And where an action was brought
for freight on a charter-party, by which it was agreed that the goods
should be delivered at London agreeably to the bills of lading, and by
the bills of lading they were to be delivered to a third person on his
payment of the freight, and in fact they were to be delivered to him,
but he refused to pay the freight, because the merchant, the defend-
ant, who was the consignor, was indebted to him to a greater amount,
CHAP. VII.] Seamen of Merchant Ships. 325
Lord Kenyon, Ch, J. held, that the freight could not be recovered of
the consignor, for the master ought not by the terms of the contract to
have delivered the goods without receiving the freight from the con-
signee.(a) Indeed, if a consignee receive goods in pursuance of the Sº...",
usual bill of lading, by which it is expressed that he is to pay the jºi...sitt."
freight, he by such receipt makes himself debtor for the freight, and after Hil.
tº Term, 1790.
may be sued for it.(b) coran Lord
Kenyon, ibid
[where the master delivered goods to the consignee, without re- @#ts
ceiving the freight, though he, afterwards, demanded it, but the pay- show. A43.
ment was refused; held, that the consignor was liable. But it seems,
that if the goods are not owned by the consignor nor shipped for his
account or benefit, he is not liable to be called upon for freight, on
such a bill of lading. Barker v. Havens, 13 Johns. Rep. 234.
The usual clause in a bill of lading “he or they paying freight for
said goods,” is introduced for the benefit of the master only, and
merely to give him the option of calling on the consignee, but he may
waive it and insist upon having it from the charterer. 13 East, 565.]
If a consignee, known as such to the master, sell the goods before
they are landed, he, and not the buyer is liable to be sued for the
freight, although the buyer enter the goods at the custom-house in his
OWIl Ila. II) e.
Thus, in the case of Artaza v. Smallpiece,(c) which was an action of & º
assumpsit brought to recover the amount of the freight of 170 chests of
oranges and lemons, which had been shipped in a general ship from
Portugal, and the bill of lading was to the order of the shipper. The
goods had been entered at the custom-house in the name of the defen-
dant, and it was proved, that in general, where the goods are so ship-
ped, to the order of the shippers, that the person in whose name the
goods are entered at the custom-house, is considered as liable to the
freight ; upon which principle the present action had been brought.
To prove this case, a witness was called on the part of the plaintiff
who proved the bill of lading, and the entry at the custom-house to
have been made in the name of the defendant; but in the course of
his examination it appeared, that the defendant had bought them of
one Haynes, to whom the bill of lading had been indorsed and sent
by the shipper, which circumstance was known to the plaintiff. * 361
y the snipper, cumstance was known to the plain
Upon this evidence, it was contended for the defendant, that the ac-
tion should have been brought against Haynes, not against the de-
fendant; that Haynes was the consignee, and in that character liable
to the freight; and that the custom of making him liable in whose
name the goods were entered at the custom-house, could only take
place where such person was in fact the consignee, or where the con-
signee was not known.
326
Of Owners, Masters, and [PART II.
(d) Ward v.
Felton, 1
East’s Rep.
507.
(e) K. B.
Tºast. Term
24 Geo. III.
1 H. Bl. 117.
Sed vide
ante, 335.
# 362
Lord Kenyon, Ch. J. said, “The captain has a right to retain the
“goods shipped on board his vessel till he is paid his freight: if he
“ parts with the possession of them, he must then resort to his con-
“tract. In the case of goods consigned, the consignee is the person
“ liable to the freight, not the person to whom he sells them : that
“would be to enhance the price on him as he must be supposed to buy
“ them at a certain price independent of all charges, unless such
“charges are made part of the bargain. A right of action cannot be
“transferred from the person liable, to another, by such person's own
“ act. He therefore who is first liable must remain so. Here
“ Haynes was the consignee, and known to be such to the plaintiff,
“who cannot, by any supposed custom transfer the liability to the de-
“fendant, who is only the purchaser of the goods from him. I am
“ therefore of opinion the plaintiff must be called.”
[But in Cock v. Taylor, 13 East 399. Lord Ellenborough, C.J. says,
“I cannot think that the opinion delivered in the above case well
founded, though there were no original privity of contract between
the parties for the payment of freight, yet the taking of goods from
the ship by the purchaser under the bill of lading is evidence of a
new agreement by him, to pay the freight, due for the carriage of
such goods, the delivery of which was only stipulated with the ship-
pers to be made to the consignees named in the bill, or their assigns,
he or they paying freight for the said goods.”]
So, the entry of goods at the custom-house, made by a person,
who is only agent for the consigner, and known to the master to be
acting in that character, does not render such agent liable to be sued
for the freight.(d)
The mortgagee of a ship is not entitled to the freight until he actu-
ally takes possession of the ship.
Thus, in the case of Chinnery v. Blackburne,(e) which was an ac-
tion of indebitatus assumpsit for freight of goods from flntigua to
Iondon. Upon the trial a verdict for the plaintiff was taken, sub-
ject to the opinion of the court of King’s Bench, on a case which
stated, that by an indenture of assignment, dated January 4th, *1783,
Robert Merryfield, in consideration of 1,166l. 18s., which he owed to
the plaintiff, assigned to her the ship B. &c., in which indenture there
was a covenant from the plaintiff to re-assign the said ship, &c. to
Merryfield, on payment of 1,166l. 18s, with lawful interest, on or be-
fore the 10th of November then next ensuing ; that, at the time of the
execution of the deed, the ship was in the river Thames and afterwards
sailed to Portsmouth, and continued there till the middle of March
following, in the possession, and under the command of 4. B. 3 and
CHAP. IV.] Seamen of Merchant Ships.
327
that the plaintiff did not then take possession: that Merryfield navi-
gated, victualled and manned the ship, as owner thereof, at his own
expense and risk, both from England to Antigua, and on her return
from thence; that Merryfield at Antigua gave the command of her to
Captain Drysdale, and sent her to England, with orders to the cap-
tain to address himself to Messrs. Dunlop, of London, merchants, who
were toºsell her according to the directions contained in a letter, in
which letter Merryfield also said, “ Mrs. Chinnery has a demand
“ against me for near 1,200l. sterling, which I hope to remit shortly to
“ you, or Mrs. Merryfield, so as to pay her :" that Messrs. Dunlop
being applied to as consignees, lent two sums of 50l. to Captain Drys-
dale, declaring they should consider him as responsible, in case they
should not receive the same by freight, &c.; and that they afterwards
received the money from Drysdale: that the ship completed the de-
livery of the cargo on the 27th of September, 1783 : that the plaintiff
took possession on the 29th of September following, immediately on
receiving information of her arrival in the Thames ; that the defend-
ant had goods from Antigua on board, the freight of which amounted
to 76l. 9s. 11d., for the recovery of which the action was brought : that
Captain Drysdale paid for lights, custom-house dues, and for clearing
the ship, which the plaintiff repaid him, and also paid his and the
mariners' wages for the voyage from Antigua, to the amount of 234l.
7s. 7d., after she took possession of the ship; and that the plaintiff af-
terwards sold the ship by auction for 710l. &c.
The court determined that the plaintiff was not entitled to the
freight.
Lord Mansfield said, “The justice of the case struck me forcibly
“ at first, as between the mortgagor and mortgagee : but the mort-
“gagor is no party; the action is brought after the mortgage, against
“a person who contracted with the mortgagor. This action *must
“be founded on the idea that the mortgagor in possession is the ser-
“vant and agent for the mortgagee, which is not the case. Till the
“mortgagee takes possession, the mortgagor is owner to the world ; he
“bears the expenses ; and he is to reap the profits.”
•Ashhurst, J. “If the voyage had proved unprofitable, could the mort-
“gagor have recovered against the mortgagee the expense of the out-
“fit? yet this must have been the case if the mortgagee were entitled
“ to the profits.”
Buller, J. “If the mortgagor be considered as agent, he must be
“so throughout, and then the mortgagee would be answerable for every
“loss, damage, &c. The payments by the plaintiff were voluntary,
“to get possession of the ship free from any liens, and are at most but
“evidence of the mortgagee's possession.”
3
3
Where a ship is freighted by the month, it is to be understood of a (f) Jolly v.
calendar, not a lunar month.(f)
Esp. Rep.
of Owners, Masters, and [PART II.
(g) Prior v.
Shears, 1
Vent. 100.
(h) Abbott, ,
88.
(i) Mtty and
another v.
Parish, and
another, 1
New Rep.
C. B. 104.
(k) Abbott,
178.
%. 364
(l) Cochran
v. Retberg, 3
Esp. Rep.
ł21.
(m) Vide
Lannoy v.
Werry, 4
Bro. P. C.
630. Jamie-
son v. Lawrie,
6 Bro. P. C.
474. 8vo. ed.
Abbott, 182.
(n) 5 East's
Rep. 316.
a".
In the case of a general ship, and where there is no charter-party,
or other covenant under seal, the freight is recoverable by action of
indebitatus assumpsit,(g) which may be brought either in the name of
the master, or his owners; but where it is brought by the latter, they
must all be made co-plaintiffs.(h)
If the contract for freight be under a charter-party, or other deed,
the proper and only form of action is Debt, or Covenant upon the
deed.(i)
*Sºº-
4. Of demurrage.
It is commonly agreed between the merchant and owner that the
former shall load and unload the ship within a limited number of days
after she shall be ready to receive the cargo, and after arrival at the
destined port. But it is frequently stipulated that the ship shall, if
required, wait a further time to load or unload, or to sail with con-
voy, for which the merchant shall pay a daily sum. This delay, and
the payment to be made for it, are both called demurrage.(k)
*The word “ days,” used alone in a clause of demurrage for un-
lading in the river Thames, is said (l) to be understood of working
days only, and not to comprehend Sundays or holidays, by the usage
among merchants in London ; but it is much better to mention wor-
king, or running days, expressly according to the intention of the
parties.
The payment of demurrage, stipulated to be made while a ship is
waiting for convoy, ceases as soon as the convoy is ready to depart;
and such payment, stipulated to be made while a ship is waiting to
receive a cargo, ceases when the ship is fully laden, and the neces-
sary clearances are obtained, although the ship may in either case
happen to be further detained by adverse winds, or tempestuous
weather : and if the ship has once set sail and departed, but is af.
terwards, driven back into port, the claim of demurrage is not there-
by revived.(m)
5. Of Passage Money.
In the case of Molloy v. Backer,(n) which was an action of assump-
sit for passage money. The facts of the case were these : the plain-
tiff contracted to carry the defendant, his family, and luggage, from
Demerara to Flushing ; and in the course of the voyage, within four
days sail of Flushing, the ship was captured by an English ship of
CHAP. VII.] Seamen of Merchant Ships.
339
war, and brought into England, and the ship and cargo libelled for
prize in the Court of Admiralty, and the cargo condemned, and pro-
ceedings still pending against the ship ; but the defendant and his
family were liberated, and their luggage in fact restored to their pos-
session. The court held, that however the question might be as to
the plaintiff’s right to recover passage money upon an implied as-
sumpsit pro rata itineris, if the ship were restored, yet pending the
proceedings against the ship as prize in the Admiralty Court, no such
action could be maintained ; for non constat but that the ship might
be condemned, and the freight decreed to the captors.
*6. Of Seamen’s Wages.
First, Of the Contract of hiring...] In order to prevent the mis-
chiefs that frequently arose from the want of proper proof of the pre-
cise terms upon which seamen engaged to perform their service in
merchant ships, it was enacted by 2 Geo. II. c. 36. s. 1. (made per-
petual by 2 Geo. III. c. 31.) “That it shall not be lawful for any mas-
“ter or commander of any ship or vessel bound to parts beyond the
“seas, to carry any seamen, or mariners, except his apprentice or
“apprentices, to sea, from any port or place where he or they were
“entered or shipped, to proceed on any voyage to parts beyond the
“seas, without first coming to an agreement, or contract with such
“seamen, or mariners, for their wages ; which agreement, or agree-
“ments, shall be made in writing, declaring what wages each mari-
“ner is to have respectively during the whole voyage, or for so long
“ time as he or they shall ship themselves for ; and also to express,
“in the said agreement or contract, the voyage for which such sea-
“man or mariner was shipped to perform the same, under a penalty
“ of 5l. for each mariner carried to sea without such agreement, to be
“ forfeited by the master to the use of Greenwich Hospital.”(0) And (o) Wide the
by section 2. this agreement is to be signed by each mariner within ºf "-
three days after he shall have entered himself on board the ship, and W.imore,
is, when signed, conclusive and binding upon all parties. The stat- Post.
ute 2 Geo. III. c. 31. s. 2. has extended these provisions to all his
Majesty’s colonies in Jimerica, -
And by the statute 31 Geo.III. c. 39. a similar agreement in wri-
ting is required to be signed by the master and mariners of vessels of
the burthen of one hundred tons or upwards, employed in the coast-
ing trade from any port or place in Great Britain, to any other port
or place in Great Britain, and going to open sea. And by the 10th
section of this act, the agreement need not be stamped,
Vori. I. ... [42]
339 - Gf Owners, Masters, and - [PART II. -
By the statute 37 Geo. III. c. 73. s. 1. (which relates to ships trad-
ing to the West-Indies) it is enacted, “that every seaman who shall
“desert at any time during the voyage, either out or home, from any
* 366 “ British merchant ship trading to or from his Majesty's "colonies
“ and plantations in the West-Indies, shall, over and above all pun-
“ishments, penalties, and forfeitures, to which he is now by law sub-
“ject, forfeit all the wages he may have agreed for with, or be enti-
“tled to, during the voyage, from the master or owner of the ship on
“board of which he shall enter, immediately after such desertion.”
And by section 2. of the same act, it is also enacted, “That all and
“every master or commander of any British merchant ship, who
“shall, from and after the first day of July, 1797, hire or engage to
“ serve on board his ship or vessel, any seaman, mariner, or other
“person who shall, to the knowledge of such master, have deserted,
“ from any other ship, or vessel, shall forfeit and pay the sum of one
(p) Abbott, “hundred pounds.”—It is observed,(p) that as this clause is express-
386. edin general terms, and is not limited to ships engaged in the West-
India trade, either by direct reference to the preamble of the statute,
or otherwise, it may probably be held to extend to all cases, and not
to be confined to the masters of ships engaged in that trade.
By the third section of the same statute it is also enacted, “That
“no master, or commander of any merchant ship, or vessel, which
“shall, from and after the first day of July, 1797, sail or proceed
“from any port or place in Great Britain, shall hire or engage, or
“cause or procure to be hired or engaged, any seaman, mariner, or
“other person, at any port or place within his Majesty’s colonies or
“ plantations in the West-Indies, to serve on board any such merchant
“ship or vessel, at or for greater or more wages, or hire, for such
“service, than according to the rate of double monthly wages, con-
“tracted for with the seamen, mariners, and other persons hired or
“engaged to serve on board such ship or vessel, at the time of her
“then last departure from Great Britain, being in the same degree
“ and station in which such seaman, mariner, or other person shall
“be so hired or engaged, at any such port or place as aforesaid, un-
“less the governor, chief magistrate, collector, or comptroller of such
“port or place in the said colonies, or plantations, shall think that
“greater or more wages, or hire, than double the monthly wages
“aforesaid, should or ought to be given to such seaman, mariner, or
“other person as aforesaid, and do and shall accordingly authorize
“ or direct the same to be given, by writing under his “hand; that
“then and in such case the master or commander of such ship, or
“vessel, shall and may be at liberty to pay, and the seaman, mariner,
“ or other person on board such ship, or vessel, to receive such great-
“er or higher wages as such governor, chief magistrate, collector,
“ or comptroller shall direct as aforesaid; and that all contracts and
CHAP. VII.] Seamen of Merchant Ships.
331
“securities made, entered into, or given contrary to the intent and
“meaning of this act, are made null and void to all intents and pur-
“poses.”
But by the 10th section of the act it is provided, nevertheless “That
“nothing in this act shall extend, or be construed to extend to any
“contract, or agreement, which shall or may be made with any sea-
“man, mariner, or other person hired or engaged to serve on board
“any merchant ship or vessel, at any port or place within his Majes-
“ty’s colonies or plantations in the West-Indies, who shall, at the
“ time of such hiring, or engagement, produce and deliver to the mas-
“ter and commander of such ship or vessel, a certificate, under the
“hand of the master or commander of the ship or vessel on board of
“which such seaman, mariner, or other person had then last served,
“signed in the presence of one or more witness, or witnesses, stating
“ their usual place, or places of abode, thereby declaring or certifying
“that such seaman, mariner, or other person had been duly discharg-
“ed from the ship, or vessel, on board of which he had so last served;
“ and which certificate the said master or commander shall grant
“within three days next after application made to him by such sea-
“man, mariner, or other person, before a witness, or, in default there-
“ of, shall forfeit and pay the sum of twenty pounds, to be levied, re-
“covered, and applied in manner herein before directed ; nor to any
“contract, or agreement, to be made with any seaman, mariner or
“other person hired or engaged to serve on board any merchant ship
“or vessel, which, through necessity, or on account of very hazard-
“ous service, or extraordinary duty, require such contract or agree-
“ment to be made, and more wages or hire given, and of which ne-
“cessity, service, or extraordinary duty proof shall be made, on oath,
“ before the chief magistrate, or principal officer of any port or place,
“ or before any justice or justices of the peace of the said colonies, or
“plantations: and provided also that such seaman, mariner, or other
“ person so hired or engaged to serve on board any ship or vessel so
“requiring such service, shall not have deserted from the ship or ves-
“sel on board of which he had then last served ; and provided also
“ that no "greater or higher wages, or hire, shall be given by any mas-
“ter or commander, or taken or received by any seaman, mariner, or
“other person as aforesaid, except in cases of such necessity, very
“hazardous service, or extraordinary duty as aforesaid, than after
“ the rate of double the monthly wages, or the wages to be settled or
“directed by any governor, chief magistrate, collector, or comptrol-
“ler, as herein before directed, to be paid or received as aforesaid.”
# 368
Upon this clause of the statute Mr. Abbott observes,(7) “That it (q) Page 389.
“is difficult to collect the real intention of the legislature from this
“long and confused proviso. If, as at first sight appears, it was intend-
“ed to allow the master to give more than double wages, without the
“authority of a magistrate, in two cases; namely, first to mariners
$32 #: €f Owners, Masters, and [PART II.
“producing a certificate of discharge from their last ship, and, second-
“ly, in the case of necessity, hazardous service, or extraordinary du-
“ ty, proved upon oath, to mariners who have not deserted from their
“ last ship; then the last part of the clause will be ineffectual. If, on
“ the other hand, it was intended to allow this power to the master
“ only in the case of necessity, &c. so proved, and to mariners who
“ have not deserted, then the first part of the clause will be ineffec-
“tual.” ‘.
Soon after the passing of this statute, it was decided, that a licence
given by a magistrate in the West-Indies to the master of a ship, “to
“procure men on such terms as he could to navigate the ship home.”
was not a compliance with the regulation prescribed; and that a mar-
iner could not maintain an action on a promise made in pursuance of
such license to pay wages exceeding in amount double the wages
agreed to be given to a person in the like situation on the outward
voyage : for that the statute required the magistrate to exercise his
own discretion as to the rate of wages to be paid, and to specify the
(i) Hodgers same in the license.(r) -
v. Lacy, 2 -
Boss. & Pull.
5'7, A form of articles of agreement between the master, officers, and
mariners of British ships employed in carrying slaves from the coast
of Africa, is annexed to the statutes made for regulating the manner of
carrying slaves in such ships, which contains several regulations ap-
plicable to that particular employment, and is the only form allowed
(3) Abbott to be used for ships in that employment.(8) -
390. -
* 369 *These legislative provisions respecting seamen extend to every offi-
cer of the ship, except the master. His contract can only be made
with the owners, and is not required to be in writing.
The statutes do not render a verbal agreement for wages absolutely
void, but impose a penalty on the master if a written agreement is
not made. When a written agreement is made, it becomes the only
evidence of the contract between the parties, and a mariner cannot
recover any thing agreed to be given in reward for his service, which
@..ºhiº v. is not specified in the articles. This has been decided(t) with respect
l e -> e
# *.*pal. to a promise to pay to the mate of a ship employed in the slave trade
º Ad the average price of a slave at the place of the ship’s destination ; and
#. ºn. also with respect to a promise to pay a sail-maker, serving in a ship
Abbott,391, belonging to the East-India Company, a monthly sum beyond the
º #. wages mentioned in the ship’s articles, which had been signed by him
Gwildhall, as sail-maker.(u)
Sitt. Decem. -
ber, 1803. - -
before Lord A seaman who engaged to serve on board a ship, is bound to exert
ſººn. himself to the utmost in the service of the ship ; and therefore a prom-
391. " ise made by the master when the ship was in distress, to pay an extra
CHAP. VII.] Seamen of Merchant Ships. 333
sum to a mariner, as an inducement to extraordinary exertion on his
- I id. w) Harrison
part, was esteemed to be wholly void.(v) § *†:
- - Peake's Cas.
But in the case of Campion v. Wicholas,(w) where the cargo of the N.P. i2.
ship was lost by the capture of a Swedish privateer, who carried her .." Stra,
into Gottenburgh: the master'staid there three months to refit the
ship, and take in new lading; and to prevent the seamen from going
away, he agreed to pay them so much per month whilst they staid
there ; and in an action for this the master would have discharged
himself on the rule that freight is the mother of wages, and that none
are ever paid while the ship is lading and unlading; which the Chief
Justice agreed to be the general doctrine, but he held it not sufficient
to control a special agreement, as there was in this case, and where
too there was so long a stay at Gottenburgh.
*So, a promise by a captain of a ship on behalf of his owners, after
the ship was taken, to pay monthly wages to one of the sailors, in or-
der to induce him to become a hostage, is binding on the owners, al- (a) Yates v.
though they abandon the ship and cargo.(a) Hall, 1 Term
- Rep. 73.
# 370
2. Of the Seaman's Right to the Whole or part of his Wages ; and
of the loss and Forfeiture thereof, &c.
1. Where the seaman actually performs his duty, or is prevented
from doing it, either by illness, or the misconduct of the master, and
the ship earns her freight.] A seaman, who has faithfully performed
his service on board a ship during the whole period of the intended
voyage, is entitled to receive the whole of the stipulated reward, if
no disaster has rendered his service useless or unproductive to his em-
ployer. And as the seaman is exposed to the hazard of losing the re-
ward of his faithful service during a considerable period in certain
cases; so on the ether hand the law gives him his whole wages, even
when he has been unable to render his service, if his inability has pro-
ceeded from any hurt received in the performance of his duty, or from
natural sickness happening to him in the course of the voyage.(y) (y) Wide Ab-
And if a master, in violation of his contract, discharges a seaman from bott, 392.
the ship during the voyage, the seaman will be entitled to his full wa-
ges up to the prosperous determination of the voyage, deducting, if
the case require it, such a sum as he may, in the mean time have earn-
ed in another vessel.(*)
So, if a master of a ship, by inhuman treatment, compels a sailor to
quit a ship, the latter is entitled to his wages for the voyage performed.
--→
(*) Wide Abbott. 392.
334
Of Owners, Masters, and [PART II.
(8)3 Esp.
Rep. 269.
# 871
Thus, in the case of Limland v. Stephens,(z) which was also an ac-
tion of indebitatus assumpsit for seamen’s wages. The plaintiff and de-
fendant were natives of Sweden. The plaintiff had entered onboard the
ship at Stockholm. The articles were out and home. She had made a
circuitous voyage, and arrived in the Thames in December, 1800.
The defendant had assaulted and beat the plaintiff several times in
the course of the voyage ; and had put him before the mast, as a com-
mon sailor, though he had been hired in the capacity of mate. The
plaintiff applied to the Swedish consul, stating his situation, but no-
thing was done ; the consul only desiring the defendant to attend
him, which he refused to do.
*The defence relied on was, that the plaintiff being a sailor, had
hired himself with the defendant, under certain articles, by which
the defendant was bound, under apenalty, to bring back his crew to
Sweden; so that no action could be maintained in England, or un-
til the completion of the voyage.
Lord Kenyon, Ch. J. said, “There are reciprocal duties between
“masters and servants. From the servant is due obedience and re-
“spect ; from the master, protection and good treatment. Desertion
“is a forfeiture of wages; but if the captain conducts himself in such
“a way as puts the sailor into that situation that he cannot, without
“ damage to his personal safety, continue in his service, human na-
“ture speaks the language—a servant is justified in providing for that
“safety. After the plaintiff had been with the consul, he communi-
“ cated to the defendant the wish of the consul to see him. The
“ captain said “he would go when it suited him:” and being pressed
“by the plaintiff to do so, he beat the plaintiff very severely; threw a
“ log of wood which hurt his foot. The plaintiff left the ship, and
“ the defendant was heard to say, that if he returned, he would chain
“ him to the mast and bring him to Sweden.”
Erskine, as counsel for the defendant, said, “The plaintiff cannot
“justify a desertion by reason of the defendant having beat him : for
“ that he could have an action of assault, which is a proper remedy.
“In this case the plaintiff sailed under articles, by which the captain
“ is bound to bring back his crew to Sweden, under a penalty; and
“ the sailor forfeits his wages by desertion.”
Sed per Lord Kenyon, “Is a man bound to serve at the peril of
“ his life P Desertion is an answer to the seaman’s claim for wages;
“but that must be a voluntary act of the seaman’s, and not to be
“caused by any act of the captain. In this case the act of the captain
“ has made the dissolution of the contract necessary, and, in my opin-
CHAP. VII.] Seamen of Merchant Ships.
3
3
5
“ion, justifiable on the part of the sailor; and I think that he is entitled
“ to a verdict.” The jury accordingly found a verdict for the plaintiff.
But, in the case of Hulle v. Heightman,(a) it was determined by the
Court of King’s Bench, that a seaman having contracted to go a
*voyage from 4. to B. and back again, with a stipulation that he should S.C.
not be entitled to his wages till the end of the voyage, cannot maintain
a general indebitatus assumpsit to recover his wages pro rata as far
as B.; though he were there wrongfully dismissed by the defendant;
(the captain;) but his remedy is either for the breach of the special
contract, or for such tortious act of the captain’s, whereby he was
prevented from earning his wages.
2. Of stipulated wages.] In the case of Williams v. Brown,(b) the
plaintiff agreed to serve as a seaman during a voyage to and from the
West-Indies; on his arrival there he was claimed as a runaway slave,
and delivered up to his master; whereupon it was agreed between
the plaintiff, his master, and the captain, that upon payment of a sum
of money by the captain, to the master, the latter should manumit the
plaintiff, he covenanting to serve the captain as a seaman for three
years, at certain stipulated wages. The plaintiff was accordingly
manumitted, and having served the captain upon the homeward
voyage, commenced an action against him to recover wages for that
voyage upon a quantum meruit. The court decided, that he was es-
topped by his covenant from claiming more than the sum stipulated.
3. Where the owners do not send the ship on her intended voyage.]
If after the hiring of seamen, the owners do not think fit to send the
ship on her intended voyage, the seamen are to be paid for the time
during which they may have been employed on board the ship. And
if they sustain any special damage by breaking off the contract, it
seems reasonable also that they should recover such damage by a spe-
cial action on the agreement.(c)
(a) 2 East's
Rep. 145, 4
Esp. Rep. 77.
# 37.2
(b) 3 Bos. &
Pull. 69.
(c) Wide Ab-
bott, 401.
4. Of outward and homeward bound voyages.] It is observed,(d) (d) Abbott,
that the payment of wages is generally dependent on the payment of 398 ad 400.
freight: if the ship has earned its freight, the seamen, who have ser-
ved on board the ship have in like manner earned their wages. And
as in general, if a ship destined on a voyage out and hone has de-
livered her outward bound cargo, but perishes in the homeward
voyage, the freight for the outward voyage is due, so, in the same
case,(e) the seamen are entitled to receive their wages for the time
employed in the outward voyage, and *the unloading the cargo.
And if a ship sails to several places, wages are payable to the time of
the delivery of the last cargo. Upon the same principle, where mo-
ney had been advanced to the owners in part of the freight outward,
(e) 1 Lord
Raym. 639.
'739.
# 373
336
Of Owners, Masters, and [PART II.
(f) 2 Show.
283,
and the ship perished before her arrival at the port of delivery, it was
held, (f) that the seamen were entitled to wages in proportion to the
money advanced. If, as sometimes happens, a charter-party be so
framed as to exclude the owner from demanding freight for the car-
(g) Buck v.
Rawlinson, 1
Bro. P. C.
137. 8vo. ed.
(h) Edwards
v. Child, 2
Vern. 727.
(i) Buck v.
Rawlinson, 1.
Bro. P. C. 137.
8vo. ed.
(k) 3 Bos. &
Pull. 415.
418. Abbott,
393.
# 374
(l) 3 Bos. &
Pull. 405.
(4 Campbell
N. F. Rep.
186.)
riage of the outward bound cargo, unless the ship brings back her
homeward bound cargo in safety, it seems that such a special agree-
ment whereby the owners consent to relinquish a benefit, to which they
were entitled by the general principles of law, ought not to affect the
seamen, or deprive them of their general right, unless they also by the
terms of their contract, make the like agreement on their part. In-
deed it was once decided in the Court of Admiralty,(g) that the seamen,
who had navigated a ship chartered by the East-India Company, and
which had delivered her outward bound cargo in the East Indies, but
was lost in the homeward voyage, were entitled to recover wages for
the outward voyage from the master, although the owners had cove-
nanted with the company not to demand any freight beyond the im-
press money, of which the seamen had received their share, unless the
ship returned home in safety; and although the mariners themselves
had given bonds to the master to the same effect with regard to their
wages. And Chief Justice Holt, is said to have decided a cause tried
before him in the same manner.(h) But this decision of the Court of
.Admiralty is reported to have been disapproved of by the House of
Lords, who in a case(i) arising out of it between the master and the
owners, gave liberty to the parties to appeal to the delegates against
the decision. -
5. In cases of Embargo or Hostile Detention.] Where a seaman
is hired by the month, and the ship is detained in a foreign port by
an embargo: and he remains with the ship during the period of the
embargo; if the ship afterwards performs her voyage, and earns
freight, the sailor is entitled to his full wages, including the period
of the ship's detention.(k)
*So, in the case of a hostile detention by a foreign state, if the ship
ultimately performs her voyage, the sailor is entitled to wages during
his detention, though he be forcibly taken from the ship by the or-
ders of a foreign prince.
Thus, in the case of Beale v. Thompson,(l) where the plaintiff had
been hired to serve on board the Isabella, from the port of London to
Petersburgh, and from thence back to London, at 5l. per month. The
circumstances of the detention of this, and several other vessels and
their crews were as follow : The ship sailed to Petersburgh: and the
detention first took place there on the 5th of November, 1800, and
in the public orders of the Russian government it was called an em-
bargo, and was said to be imposed on the ground of a breach of faith
CHAP. VII.] Seamen of Merchant Ships.
337
on the part of this country respecting the Island of Malta. The thas.
ters and crews were soon afterwards forcibly taken from their ves-
sels; such of the seamen as were the subjects of other countries were
liberated at the request of their consuls ; but the British masters
and mariners were marched in parties into the interior of the coun-
try, and treated as prisoners of war. A convention hostile to Great
Britain was formed between Russia, Sweden and Denmark; an em-
bargo was imposed in this country on the vessels of those nations ;
actual hostilities took place ; and a British fleet forced the Sound
and attacked Copenhagen. Upon the death of Paul, and the succes-
sion of the present emperor Alexander, peace was re-established ;
and the ships, which had been detained on both sides, were mutually
restored. This restitution took place in Russia at the end of May
1801; the British mariners returned with their vessels, which brought
home their cargoes, and earned their freight,
The Court of King's Bench,(*) upon a writ of error from the Court
of Common Pleas, decided, that such seizure, however hostile in the
manner, so far partook of the nature of an embargo, in its result,
and not of a capture, that it did not put an end to the contract of a
mariner for wages, even during the time of such detention and im-
prisonment. But even considering it as a temporary capture, yet
like the case of a capture and recapture, the mariner was still enti-
tled to his wages; for a mariner's title to wages depends on the ship's
earning her freight for the voyage, and the performance of his stipu-
lated duty; and here freight for the voyage was ultimately earned,
and the mariner was guilty of no breach of duty; for his stipulation
not to be on shore under any pretence without leave, before the voyage
was ended, must be understood of being on shore by the party’s own
wnauthorized act. And even if such imprisonment on shore could
be so considered, yet the master having afterwards received him
again on board without objection, amounted to a dispensation of the
service in the interval, and entitled him to wages according to his
original contract. -
6. In cases of Capture and Recapture.] If a ship is captured in
the course of her voyage, but is afterwards recaptured, and arrives.
with her crew at the port of delivery, the seamen are entitled to theif
wages.(m)
But, if a ship sail to one place in order to take in a cargo there,
to be conveyed to another place, and having received the cargo ac-
-ie- *a, *--E* =
(*) 4 Fast's Rep. 546.
(m) Bergstrom v. Mills, 3 Esp. Rep. 36. But see Abbott, 411, 412, as tº
the sailor's liability to contribution for salvager
VoI., I.
# 675
§
3
8
Of Owners, Masters, and [PART II.
(n) 3 Burr.
1844.
(o) Cited in
Thomson v.
Rowcroft, 4
East's Rep.
43.
# 37.6
(p) The
Friends v.
Bell, 4 Rob.
Ad. Rep. 143.
See also Ab-
bott, 411 ad
413.
cordingly, be taken before her arrival at the place of delivery, noth-
ing is payable to the seatien for navigating the ship to the first
place, because no freight is thereby gained.
Thus, in the case of Hernaman v. Bawden,(n) which was an action
of assumpsit for a sailor’s wages on a voyage to Newfoundland, for
fish, and from thence to Spain or Portugal. The ship received her
cargo at Newfoundland, but was taken by the enemy before her ar-
rival at her port of delivery. It was determined that the plaintift
could recover no part of his wages ; for as the freighter lost his car-
go, so the mariner ought to lose his wages.
So, in the instance of capture and recapture, if the seamen are
thereby separated and detained from the ship, which afterwards earns
her freight without them, it seems doubtful whether they are enti-
tled to their wages for the period of detention. For though in the
case of Pratt v. Cuff;(0) which was tried before Lord Kenyon,
wherein the master of a vessel, which had been captured and restor-
ed, claimed his wages for the period of detention, *although he had
during that time been separated from the vessel, the ship having af-
terwards earned her freight, the wages for the voyage, exclusive of
that period, were paid without dispute ; and the defendant is repor-
ted to have acquiesced under a verdict given against him for the fur-
ther sum, by reason of a strong opinion expressed by his Lordship
at the trial in favour of the claim. Yet in the case of a mariner,(p)
who had engaged for a voyage from Newcastle to London and back,
and was captured with the ship two days after her departure, and
taken out of her by the captors and sent to France, and who instituted
a suit in the Court of flûmiralty for wages, the ship having been re-
taken, and performed her voyage. The learned judge of that court
said, “Nothing is better settled than that the act of capture defeats
“all rights and interests,” and he held, the interest of the mariner
not to be revived in that case, he having been separated from the ship,
and the owner having been obliged to hire another mariner at Lon-
don to supply his place on the return.
[But, where a ship, captured during her voyage, and her crew ta-
ken out and detained prisoners of war, was afterwards recaptured,
and the master with a new crew proceeded on her voyage and arrived
at her last port of delivery, and earned freight ; held, that the sea-
men, who were taken out, though never restored to the ship, were
entitled to wages for the whole voyage deducting only their propor-
tion of salvage paid to the recaptors. PWetmore, et al. v. Henshaw,
12 Johns. Rep. 324.
CHAP. VII.] Seamen of Merchant Ships. 339
}
But, where a vessel is captured and condemned, though the owner
recovers the freight from the insurers, the seamen have not a right
to their wages. 18 Johns. Rep. 257.]
7, Where a seaman is impressed out of a Merchant Ship, or volun-
tarily enters into the King’s Service..] Before the passing of either of
the statutes, which regulate the service of seamen in merchant ships,
it was determined,(q) that a seaman, who was impressed from such a 9, º
ship into the king's service, was entitled to receive a proportion of jº Bayº.
his wages up to the time of impressing, the ship having afterwards ar- 1211. See al-
rived in Safety at her port of discharge. It has also been since decid- *Abbott, 39,
ed, that he is entitled to no more.(r) The first of those statutes(s) (r) Clements
expressly provides, that a seaman belonging to any merchant ship, who *. ºn,
enters into the service of his majesty on board of any of his majesty’s Term. 24
ships, shall not for such entry forfeit the wages due to him during the º. º: Ab-
term of his service in the merchant ship, nor shall such entry be (s) 3Geo. II.
deemed a desertion. It has also been decided, that a seaman belong- * 36. s. 18.
ing to a privateer, who was to have a certain share of prizes in lieu of
wages, and who had engaged to serve full six months on pain of for-
feiting such share, did not lose his share of a prize taken while he was
in the privateer by being afterwards impressed, and then *accepting
the bounty, and entering on board one of his majesty’s ships before the
expiration of the six months.(t) (t) Paul v.
- Eden, K. B.
e East. Term.
8. Of the Death of a Seaman during the Voyage.] If a seaman 25 Geo. III.
falls sick and dies during the voyage, it appears by several foreign “” ”
ordinances,(v) that his wages shall be apportioned and paid to his rep- (v) Wide Ab-
resentatives. But there is no general decision on this subject in our bott, 395.
law books: though in the case of Cutter v. Powell,(u) it seem to have (v) 6Term
been admitted, that the representatives of a seaman hired by the Rep. 320.
month would be entitled to a proportion of wages to the time of his tºº.”
death. The facts of the case itself were very particular, and the de-
cision turned upon them. Before the passing of the statute which
limits the wages to be given to persons for navigating a ship back
from the West-hdies to this country, one Cutter was hired as second
mate on a voyage from Jamaica to Liverpool ; and at Jamaica, the
master subscribed and delivered to him the following note ; “Ten
“ days after the ship G. P., myself master, arrives at Liverpool, I pro-
“mise to pay to Mr. T. Cutter, the sum of 30 guineas, provided he
“proceeds, continues and does his duty as second mate in the said
“ship from hence to the port of Liverpool. Kingston, July, 31st,
“ 1793.” The ship sailed from Kingston on the 2d. of August, and
arrived at Liverpool on the 9th of October. Cutter went on board
the 31st of July, sailed in the ship and proceeded, continued, and did
his duty as second mate until his death, which happened on the 20th
of September. It was proved, that the wages usually paid to a second
* 377
340
of owners, Masters, and [PART II,
# 378
(w) 1 New
Rep. C. B.
299.
mate on such a voyage, if hired by the month out and home, were 4!.
per month: that when seamen were shipped by the run from Jamai.
ca to England, a gross sum was usually given ; and that the usual
length of a voyage from Jamaica to Liverpool, was about eight weeks.
The plaintiff was executrix of Cutter; and it was contended on her
behalf, that she ought to recover a proportion of the wages for that
part of the voyage that he lived, and served on board the ship. The
Court of King’s Bench, before which this question was brought for
decision, directed inquiry to be made as to the usage among mer-
chants, &c. in cases of this kind ; but no satisfactory information be-
ing obtained as to the usage, although such notes had been often given,
the court, “upon consideration of the particular terms of the note,
and of the great excess of the sum to be paid to Cutter, if he had per-
formed the whole voyage according to those terms, above the usual
rate of wages upon a monthly hiring, decided that nothing was paya-
ble for the partial service: declaring at the same time, that if the
plaintiff could have proved a usage to pay a proportional sum in simiz
lar cases, their decision should have been conformable to the usage.
Where the captain of a ship has accounted upon oath to the collec-
tor of the port for a sum of money, as the wages due to a deceased
seaman, and paid the same to Greenwich Hospital, under the 37 Geo.
III. c. 73. the representatives of such seaman may still sue the captain
for any wages due beyond the sum so paid.
Thus, in the case of Armstrong, administratrix of flrmstrong v.
Smith,(w) which was an action brought by the plaintiff as adminis-
tratrix of her husband, who had been a mate of a West-Indiaman,
and had died on the voyage home, for wages due to him from the
defendant as captain of the ship upon that voyage.
Upon the trial of this cause before Sir James Mansfield, Ch. J. it
was proved, by acknowledgments of the defendant made to the plain-
tiff immediately after his arrival from the voyage, in which the plain-
tiff’s husband died, that 23l, were due to him for wages; and the on-
ly defence relied 6m was, that the defendant had within three months
after the arrival of the ship, paid into the office of the receiver of the
six-penny duty for Greenwich Hospital, under the 37 Geo. III. c. 73.
s. 7, the sum of 91, as the arrear of wages due to the deceased, and
for the use of his executor or administrator. This, it was contended,
deprived the plaintiff of her right of action for the wages due to her
husband, the defendant having, according to the directions of the above
statute, accounted with Greenwich Hospital, upon oath, for the amount
of the wages due to the plaintiff, and having made himself liable tohea-
vy penalties if he had rendered a false account. His Lordship direct.
ed the jury to deduct the 91, paid into Greenwich Hospital to the ae-
CHAP. VII.] Seamen of Merchant Ships.
341
count of the plaintiff, and to give her a verdict for 14l. This was ac-
cordingly done, and liberty was reserved to the defendant to move the
court to set that verdict aside, and enter a nonsuit.
*A rule was accordingly moved for and obtained : But the court,
after argument, determined that the plaintiff was entitled to recover
the 141.
Sir James Mansfield, Ch. J. said, “The single question in this
“ case is, whether the 37 Geo. III. c. 73, has taken away from the
“representatives of seamen dying upon a voyage the right of recov-
“ering from the captain such wages as remain due to them in their
“representative character, after allowing to the captain for so much
“ as he has duly paid upon their account to the officer of Greenwich
* Hospital? Nothing is to be collected from the language of the act
“as to the particular grievance which induced the passing those pro-
“visions which apply to this case. On that point we are left in the
“ dark. Representatives of deceased seamen must often not only be
“very ignorant respecting the amount of wages due to them from
“captains, but must have encountered great difficulties in pursuing
“ their remedies against captains who had probably embarked on fresh
“ voyages. To remedy this inconvenience it is provided by the act,
“ that every master of a ship employed in the West-India trade shall,
“ within 10 days after his arrival out and home, deliver in an account,
“on oath, of all seamen who have died on the voyage, and within
“ three months after his arrival in any port of Great Britain pay to
“ the receiver of the six-penny duty for Greenwich IIospital any wa-
“ges due to any seaman who has died during the voyage, to the use
* of the representatives of such seaman. It is observable, that in case
“ the master neglects to comply with the directions of the act in the
“ above mentioned respects, he is subjected to two penalties of 50l.
“each, and also to double the amount of the wages due to the deceas-
“ed seaman; but that the penalties, when recovered, are distributed
“in the proportions of one-third to Greenwich Hospital, one-third to
“ the support of the seaman’s hospital, if any there be ; and if not,
“ to the disabled seamen of that port and their families, and the re-
“ maining one-third to the informer. Of these penalties, therefore,
“nothing is reserved for the representatives of the deceased sea-
“man, who have been the actual losers by this neglect or fraud of the
“ master of the ship. That is a strong ground for inferring, that it
“ was not the intention of the legislature to deprive them of their
“remedy at law for the wages not actually paid to the officer at
* Greenwich Hospital. For it seems probable that the legislature
“would have given some part of the penalties recovered to the rep-
“resentatives *of the deceased seaman by way of compensation for
“ their loss, if it had intended to deprive them of their right of ac-
342 Of Owners, Masters, and [PART II.
“tion for the wages not duly paid in on their account. If the whole
“ of the wages due are faithfully paid in, of course the representa-
“tive of the seaman has no longer any right of action for wages; but
“if a part only be paid in, and the remainder be fraudulently with-
“held, on what principle is it that the representatives of the seamen
“ are to be deemed to be deprived of their right of suing for such wa-
“ges P According to the construction contended for on behalf of the
“defendant, the master of a ship may be called upon to pay large
“penalties, no part of which, nor of the wages remaining unpaid will
“ever belong to the person really injured by the misconduct of the
“captain, viz. the representative of the seaman. It appears to me
“monstrous to put such a construction upon an act, which does not
“contain one single word by which the right of the representative to
“recover wages not duly accounted for to Greenwich Hospital is tak-
“en away.” -
9. Where a Ship does not perform her Voyage in consequence of
her not being Seaworthy, &c.] The wages of seamen, whether hired
by the month or for the voyage, are sometimes lost without any fault
on their part, and sometimes forfeited by their misconduct. The pay-
ment of their wages depends on the successful termination of the
voyage : therefore if by any disaster happening in the course of the
(*) wide Mol. Yº such as the loss or capture of the ship, the owners lose their
ioy, b. 2, c. freight, the seamen also lose their wages.(a)
3. s. 101 Sid.
179. Aber- - tº
niñy. Lan. So, if a ship be not seaworthy at the commencement of her voyage,
dºlº, Doug, and in the course of it is forced into port, and the crew are compelled
539. Abbott. g - --
111. to abandon the voyage; the sailors cannot recover wages for any part
of the voyage : but their remedy is by special action on the case
against the owners.
£. *. Thus, in the Čase of Eaken v. Thoin,(y) which was an action of
tº V º assumpsit for seamen’s wages. The defendant was the owner of a
ship lying at Liverpool; and had hired the plaintiff to proceed as mate
on board the ship, on a voyage to Philadelphia. The ship sailed on
the voyage, but was under the necessity of putting into Cork, not from
# 381 any uncommon badness of the weather, but “from the circumstance
of the want of seaworthiness in the ship ; which, on inspection, was
found not to be capable of repairs; so that she was condemned and
sold, and the voyage abandoned.
The counsel for the plaintiff admitted that, in common cases,
freight was the mother of wages, and that if the ship was lost, the sail-
or had no claim : but he contended, that that was the case where the
ship was seaworthy, when she sailed on her voyage, and unless pre-
vented by the common casualties of the sea, could have completed
her voyage, and the seaman earned his wages. The owner, by send-
ing out a ship incapable of performing the voyage, could not defeat
CHAP. VII.] Seamen of Merchant Ships.
the plaintiff’s claim to wages where he had been willing to serve, and
where the voyage was lost and defeated by reason of the defendant’s
own default, and not through any fault of the plaintiff.
Lord Ellenborough, Ch. J. said, “That the cases had never made
“ the distinction contended for by the counsel. The rule of law was
“general ; the ship must perform her voyage to entitle the seamen
“ to recover ; and if the owner sent her out under such circumstan-
“ces as were stated, it should be the object of a special action on the
“ case: but he was of opinion, that the sailor could not, on the ground
“stated, recover his wages.” w
The plaintiff afterwards proved, that when the vessel was found
not to be in a capacity to proceed on the voyage, he was ordered to
remain on board until she underwent seme repair; which he did, and
for which he claimed wages. -
Lord Ellenborough ruled, that this being a new contract, the plain-
tiff was entitled to recover on that account, as for work and labour.
10. In Cases of Embezzlement or Damage of Part of the Cargo.]
If any part of the cargo be embezzled or injured by the fraud or neg-
ligence of the seamen, so that the merchant has a right to claim a sat-
isfaction from the master and owners, it is observed,(2) that they % Abbott;
may, by the custom of merchants, deduct the value thereof from the
seamen, by whose misconduct the injury has taken place. And that
the last proviso "introduced into the usual agreement signed by the
seamen, is calculated to enforce this rule in the case of embezzlement
either of the cargo or of the ship’s stores.
But where part of the cargo is plundered during the voyage, but
by whom cannot be ascertained, a sailor does not, in consequence of
such plunderage, forfeit his wages ; nor, as it should seem, is he lia-
ble to any deduction therefrom.
% 38%
Thus, in the case of Thomson v. Collins,(a) which was an action of (a) 1 New
assumpsit for seamen’s wages. On the trial, a verdict was found for º:
the plaintiff, subject to the opinion of the Court of Common Pleas on
a case which stated, that on the 19th of February, 1803, the plaintiff
shipped himself as a sailor on board the ship Mentor, at Port Maria,
in Jamaica, for a voyage from Jamaica to London, and afterwards
served on board the ship during the voyage. At the time of his en- }
try he signed the articles prescribed by the statute 37 Geo. III. c. 73.
The Mentor had several pipes of Madeira on board, which were ship-
ped at Madeira on the outward bound voyage, and stowed in the fore-
part of the ship, and secured in the usual manner by a strong parti-
tion of deal boards to prevent the crew from getting to them. When
the ship set sail from Jamaica on her homeward-bound voyage, the
partition was secure. In the course of her passage from Jamaica to
p. C. B.
344
Of Owners, Masters, arid [PART II.
# 383
London, the partition was broken down by some of the crew, but by
whom the same was done could not be ascertained. Six of the casks
were plugged by some of the crew, but it was not proved that the
plaintiff was concerned in the transaction. Upon the landing of the
casks plugged, there was found a deficiency in their contents to the
amount of 162 gallons. The defendant, the owner, paid all the other
men their wages, deducting their proportionable value of the Madei-
ra lost.
The question for the opinion of the court was, whether the plaintiff
was entitled to recover ?
The counsel for the defendant argued thus: “The form of agree-
“ment, to be entered between the master and mariners upon West-
“India voyages, is expressly provided by 37 Geo. III. c. 73. s. 11.
“Whatever conditions, therefore, are to be found in the articles con-
“tained in the schedule of that act must be binding upon *the parties.
“At the conclusion of the articles it is agreed ‘that each seaman
“‘ and mariner who shall well and truly perform the above mention-
“‘ed voyage, (provided always, that there be no plunderage, embez-
“zlement, or other unlawful acts committed on the said vessel’s car-
“‘go or stores) shall be entitled to the wages or hire that may become
“‘ due to him pursuant to this agreement.” The right to wages, there-
“fore, is subject to a condition; and if there be any plunderage or em-
“bezzlement, the right to wages is forfeited. The terms of the pro-
“viso, being clear and precise, cannot be done away by construction.
“Many of the marine laws appear at first repugnant to justice; but
“they are founded on policy, and have therefore been supported. It
“appears from Molloy, book 2, chap. 3. s.9, that if goods are embez-
“zled, the master may deduct the amount out of the mariner’s wages;
“for before the mariner can claim his wages out of what the ship hath
“earned, the ship must be acquitted from the dataage that the mer-
“chants have sustained by the negligence or fault of the mariners.
“It is also said in Bellamy v. Russel, 2 Show. 167. that there is a
“custom between the master and hired seamen to deduct out of their
“wages what goods are damnified.”
The court, however, were of opinion that the plaintiff was entitled to
FeCOWer.
Sir James Mansfield, Ch. J. said, “Whether the defendant in this
“case be entitled to deduct out of the plaintiff’s wages his proportion
“of the embezzlement, in the same manner as has been done respec-
“ting the other seamen, might perhaps afford some question ; but
“nothing has been tendered, and no money paid into court, and we
“have only to determine whether the plaintiff be entitled to recover,
“ If, however, the right to a deduction be considered as a question of
“importance, and the defendant will pay into court the rest of the
CHAP. VII.] Seamen of Merchant Ships.
348
“ plaintiff’s wages, together with the costs of this action, iſshould have
“ no objection to let this case stand over to next term, in order to
“ consider further the question of deduction: but in that case the de-
“fendant must pay the costs of the argument. As to the act of Par-
“liament, nothing can be more unreasonable than the construction set
“ up for the defendant; the words relied upon are that each seaman
“‘ and mariner who shall well and truly perform the above men.”
“‘tioned voyage, (provided always, that there be no plunderage, emi-
“ bezzlement, or other unlawful acts committed on the said vessel’s
“‘ cargo or stores) shall be entitled to their wages or hire that may
“‘ become *due to him pursuant to this agreement.” From these gen-
“eral loose words the defendant would contend, that if any goods to
“ the amount of 5s. be plundered er embezzled by A., or any unlaw.
“ful act committed by A., B., and every other sailor on board, shall
“lose his whole wages. The words, therefore, must be construed res-
“pectively to every sailor who shall plunder, embezzle, or commit an
“unlawful act. There is no foundation, therefore, for a forfeiture of
“ the whole wages; and I suspect that there is as little for a propor-
“tionable deduction; for notwithstanding what is said in Molloy, if
“such be the rule of law, it is scarcely possible but that it must have
“ been often mentioned in our books, and as well known as any rule
“ of maratime law, since frequent occasions must have arisen for the
“application of it.”
11. Of Desertion.] Desertion from the ship is held to be a forfei-
# 334
ture of the wages previously earned in all maratime states ;(b) and in (b) Wide Ağ.
conformity to this principle of maratime law, the legislature of this bott, 413.
country, by the statute 11 and 12 W. III. c. 7. s. 17. “ for the preven-
“tion of seamen, deserting of merchant ships abroad in parts beyond
“ the seas.” has enacted, “That all such seamen, officers, or sai-
“lor's, who shall desert the ships or vessels wherein they are hired to
“ serve for that voyage, shall, for such offence, forfeit all such wages
“ as shall be then due to him or them.” And by the statute 2 Geo.
II. c. 36. s. 3., if a seaman shall desert, or refuse to proceed on the
voyage on board any ship bound to parts beyond the seas, or shall
desert from the ship to which he belongs, in parts beyond the seas,
after he shall have signed the contract he shall forfeit to the owners
the wages due to him at the time of his deserting, or refusing to pro-
ceed on the voyage.
By the articles of agreement usually signed in these cases, it is
stipulated that the mariner shall not go out of the ship, on board any
other vessel, or be on shore under any pretence whatever, without
leave; and that in default he shall beliable to the penalties of this act
of Parliament: but it is observed(c) that this stipulation is merely re-
ferable to the statute, and does not create a forfeiture of wages in a
Wol. I. [44]
(c) Ibid. 414,
346
Qſ Owners, Masters, and [PART II.
# 385
(d) Frontine
v. Frost, 3
Bos. & Pull.
302.
(e) Ibid.
(f) 31 Geo.
III. c. 39. s.
3 and 4.
See also Ab-
bott, 416.
* 386
case where the statute has not inflicted it; as in the case of leaving the
ship after her arrival in a port of this country,although before she is moor-
ed. This case is specifically provided “for by the second section of the
last mentioned act, which, after reciting that “ seamen and mariners,
“ after their ship's arrival at their unlivering port in Great Britain,
“ ofttimes leave the ships and vessels before they are unladen, or be-
“fore the said seamen and mariners are discharged by the masters or
“ commanders of such ships or vessels,” enacts, “That in case of
“any seaman or mariner, not entering into the service of his Majesty,
“his heirs and successors, shall leave such ship or vessel to which he
“ or they belong, before he or they shall have a discharge in writing
“ from the master or commander, or other person having the charge
“ of such ship or vessel, he or they so leaving such ship or vessel,
“shall forfeit one month’s pay to the use of Greenwich Hospital.”
Although by this clause the discharge is required to be in writing,
yet in an action brought by a seaman against the master for the wages,
at the trial whereofit appeared that the plaintiff and several others left
the ship under these circumstances, while she was under the command
of the mate, and the masterinsisted upon his right to make this deduc-
tion, but did not call the mate to prove that he had not given a discharge
in writing, it was held, that the jury might presume that the plain-
tiff had received such a discharge; this being the case of a penalty in
which the negative ought to be proved by the party insisting on the
forfeiture, as the circumstances of the case appeared to afford him the
means of doing so.(d)
The statute 2 Geo. II. c. 36. s. 9. also authorizes the master or
owner to deduct from the wages due to a mariner all the penalties and
forfeitures incurred by the act, and to enter them in a book to be kept
for that purpose, to be signed by the master and two or more principal
officers. Upon this clause of the act it has been held,(e) that the
master cannot make this deduction unless the forfeiture has been reg-
ularly entered in a book, as the statute directs.
With respect to ships of the burthen of one hundred tons and up-
wards, employed in the coasting trade, and going to open sea, it is
provided,(f) that if a seaman, having signed the requisite agreement,
neglects or refuses to proceed on the intended voyage, he *forfeits to
the owner all the wages due to him at the time; but the forfeiture
for desertion afterwards, and before the voyage or voyages agreed
upon, or upon which such ship shall have proceeded, shall be com-
pleted, and the cargo of such ship delivered, or before the seamen
shall have a discharge in writing from the master, &c. is only of one
month’s wages to the use of Greenwich Hospital.
CHAP. VII.] Seamen of Merchant Ships. 347
In all cases a seaman who wilfully absents himself from the ship
without leave, forfeits to the use of Greenwich Hospital two days’
pay for each days’ absence.(g) (g) 2 Geo. II.
c. 36. s. 5.
- º and 31 Geo.
In the coasting trade, the statute 31 Geo. III. c. 39. s. 9. directs, III. c. 39. s.4.
that if a seaman is hired by the voyage, and the period of his voyage
agreed upon exceeds one lunar month, the forfeiture of one month's
pay shall be accounted a forfeiture of a sum of money bearing the
same proportion to the whole wages as a lunar month shall bear to
the whole period of the voyage; and that the forfeiture of two days?
pay shall be computed in the same manner. If the whole period of
the voyage does not exceed one lunar month, the forfeiture of one
month’s pay is to be accounted a forfeiture of the whole wages con-
tracted for: and the like as to the forfeiture of two days’ pay, if the
voyage does not exceed two days. -
In addition to this forfeiture of wages earned by service in the ship
from which a seaman deserts, the legislature, by statute 37 Geo. III,
c. 73. s. 1. has further punished desertion from a British ship in the
West-Indies with a forfeiture of all the wages to which he might
otherwise be entitled for the voyage made in the ship on board of
which he shall enter immediately after such desertion. *~,
We have already seen(h) that entry into the service of his Majesty (h)ºde ante,
is not deemed a desertion, nor followed by the forfeiture of wages. p. 376.
The legislature has also punished with the forfeiture of wages the
offence of neglecting or refusing to assist the master in defending the
ship against the attack of pirates.(i) It seems also that *neglect of (i) 22 and 23
duty, disobedience of orders, habitual drunkenness, or any cause ºil. c. 11.
which will justify a master in discharging a seaman during the voyage, # 387
will also deprive the seaman of his wages.(k) (k) 2 Rob.
Adm. Rep.
º º 4 * 216. Abbott
But in the case of Sigard v. Roberts,(l) which was an action of as- 313. Out,
sumpsit for seaman’s wages against the defendant, as captain of the Q). 3 ºP.
ship Elizabeth on a voyage from Hamburgh to Tranquebar, from ep. 71.
Tranquebar to any port the captain should think proper; and from
thence to the port of Hamburgh, or any other port of delivery.
The plaintiff signed articles, and sailed on the voyage to the Isle of
France, where she took in a cargo of coffee, sugars, &c. for Ham-
burgh, and was proceeding on her voyage, when she was met, on the
29th of March, 1799, in the North Seas, by his Majesty’s ship the
Lord Duncan, and taken and brought into the Downs, and libelled in
the Court of Admiralty as enemy's property.
€ſ Owners, Masters, and [PART W.
# 338
It was given in evidence for the plaintiff, that he had come on shore
with a boat from the ship, accompanied by the second mate and the
surgeon; that he had remained on shore: but it appeared that he
and the other seamen, on being required to get on board, said they
had no victuals the whole of the day, and only requested to stay till
they had some ; and that, being then left on shore, they had gone to
the ship the next morning, when the defendant refused to receive
them, and dismissed them, refusing to pay them their wages, and de-
siring them to go to Hamburgh and seek them.
The counsel for the defendant rested their defence, 1st. On the
clause in the articles by which the crew were to serve on the voyage
above stated, and back to Hamburgh, or wherever else the port of de-
livery should be ; that the ship not having arrived at Hamburgh, or
any other port of delivery, the action was not maintainable until ei-
ther of those events took place. 2dly. That by the seventh clause in
the articles, no seaman was to demand any money of the captain,
but to be content with the wages he had received in advance, until
the voyage was ended, the cargo unloaded, and the ship cleared and
brought into the proper moorings, under penalty of six marks; so
that this was a bar to the *plaintiff’s recovery in this country, 3dly.
That this was a desertion, by which the seaman forfeited his wages,
under the last clause in these articles. ... .
Lord Eldon, Ch. J. said, “By the last clause in these articles, de-
“sertion is a forfeiture of wages; the law would have held the same
“language; the principal question, therefore, here is, is this a de-
“sertion ? The defendant undertakes to prove that it is ; but, from
“the circumstances of the case, I am of opinion that it is not : the
“ plaintiff and the other seamen only requested to be permitted to
“ remain on shore to have some victuals ; it was a reasonable re-
“quest; they had no intention of abandoning the ship ; they, in fact,
“went on board as soon as they had the means, and were refused to
“be received. After thus offering to return to their duty, the cap-
“tain shall not be permitted to call such conduct a desertion, when
“the whole conduct of the plaintiff showed that no such was intend-
“ ed.”
“The second question set up by the defendant is, that the wages,
“if any are due, are recoverable at Hamburgh only ; and it is there-
“fore contended that the captain cannot be sued in a foreign court
“of justice. It is a very wholesome provision, and it may be right
“ law, that if a ship is captured, and the master and sailors all dismis-
“sed by the force of third persons, such clause should be effectual ;
“but the questionis, has the plaintiff a right to sue here 2 In this
“case the captain discharges the sailor. I should be sorry to state,
“that when the captain discharges a seaman, such seaman has not
“a right to sue for his wages. The seventh clause does not contain
CHAP. VII.] Seamen of Merchant Ships. 349
“an express prohibition to sue in any country, when the voyage is
“ended : this clause, therefore, cannot prevent the sailors suing for
“ their wages, when the master discharges them ; the voyage then is
“ended as to the man who is discharged from the ship.”
3. Of the Time and place of Payment of Wages.
By the articles of agreement annexed to the statute Geo. III, c. 73,
made for preventing the desertion of seamen from ships trading to
the West-Indies, and which are in common use for other voyages al-
so, it is stipulated, that the seamen shall not demand, *or be entitled # 38.9
to any part of their wages until the arrival of the ship at the intended
port ofdischarge, and delivery of her cargo, nor in less than twenty
days, if they are not employed in such delivery. The port of dis-
charge here mentioned seems, by the form of the articles to be the for-
eign port to which the outward bound cargo is destined ; but Mr.
Abbott, in his treatise on this subject(m) conceives it to be meant (m) Page.
of the port of discharge and delivery at the ship’s return to this 405.
country ; for, he observes, unless the voyage and stipulated service
of the seamen terminate at the foreign port, only half the wages then
due can be paid there; the legislature having enacted as a general
law,(n) “that no master or owner of any merchant ship, or vessel, (n) 8 Geo. I.
“shall pay or advance, or cause to be paid or advanced, to any sea- c. * * 7.
“man or mariner, during the time he shall be in parts beyond the º e-
“seas, any money or effects, upon account of wages, exceeding one Geo.II. c.28,
“ moiety of the wages which shall be due at the time of such payment, łº. it.
“ until such ship or vessel shall return to Great Britain, or Ireland, 30. a. 12.
“ or the Plantations, or to some other of his Majesty’s dominions,
“ whereto they belong, and from whence they were first fitted out;
“ and if any such master or owners of such merchant ship, or vessel,
“shall pay or advance, or cause to be paid or advanced, any wages,
“to any seaman or mariner, above the said moiety, such master or
“owner shall forfeit and pay double the money he shall so pay or ad-
“vance, to be recovered in the High Court of Admiralty, by any per-
“ son who shall first discover and inform of the same.”
And by the articles of agreement prescribed by the statute 39 Geo,
III. c. 80. made to regulate the manner of carrying slaves in British
ships from the coast of Africa, the master engages “to pay one month’s
“pay after the landing of the slaves in the West-Indies, or America,
“ ten days before the sailing of the ship on her homeward bound pas-
“sage.” And the officers and mariners engage “not to demand their
“wages, or any part!thereof, except the value of the fourth part of their
“wages, to be supplied in slops or other necessaries, and one month’s
“pay with their short allowance money then due in the West-Indies,
350
Gf Owners, Masters, and - [PART II.
* 390
(o) Abbott,
405, 6.
(q) Hull v.
IIeitman, at
Guildhall,
Sitt. after
Mich. Term,
1801, Abbott,
408.
(r) Ibid.
“ or America, until the ship's arrival at her delivering port,(*) except
“they shall be impressed, *or enter on board any of his Majesty's
“ships, or be discharged by mutual consent, agreeable to the certifi-
“ cate specified in the act.”(0)
By the articles of agreement for service in a Dutch ship, which
were proved in evidence in the case of Gionar v. Meyer,(p) it was
stipulated, that in case one or more complete voyages should be made
out of the country, the master should, at every second place of de-
livery, secure to the seamen two-thirds of their wages, by an order
on his purser or correspondent at Rotterdam ; but that none of the
seamen should institute any suit against the master in foreign coun-
tries. -
By the articles of agreement made at Altona, for service in a Dan-
ish ship, which were proved in the like manner at another trial,(q) it
was stipulated that no one should demand any money, while abroad,
from the master ; but every one should content himself with the mon-
ey received upon hand, until the completion of the voyage, to the sat-
isfaction of the master and his owners, and until such time as the
ship should have arrived at Altona ; and it should at all times be at
the option of the master to give them money while abroad or not.
By the law of ſimerica a seaman is entitled to receive one third of
his wages due to him at every port where the ship unlades and de-
livers her cargo, before the voyage is ended, unless the contrary is ex-
pressly stipulated in the contract.(r)
As to ships engaged in foreign voyages, it is enacted by the sta-
tute 2 Geo. II. c. 36, s. 7, that, upon the arrival of any ship in Great
Britain, from parts beyond the seas, the master or commander shall
be obliged to pay the seamen thereunto belonging their wages, if de-
manded, in thirty days after the ship's entry at the custom-house,
except in case where a covenant shall be entered into to the contrary,
or at the time the seamen shall be discharged, which shall first hap-
pen, if demanded, deducting the penalties and forfeitures “imposed
by the act, “under penalty of paying to each seaman or mariner,
“ that shall be unpaid, contrary to the intent and meaning of this act,
“ twenty shillings over and above the wages that shall be due to each
“person, to be recovered by the same means and methods as the wages
“may be recovered; and such payment of wages aforesaid shall be
“good and valid in law, notwithstanding any action, bill of sale, at-
“ tachment or incumbrance whatsoever.” -
(*) This appears, by the articles, to be a delivering port in Europe, Pide Ab-
bott, 4t)6, note (l)
(p) 2 H. Bl. 623. In consequence of the concluding clause of these arti-
cles, it was held that an action for wages could not be maintained, although
the vessel had been seized by an English ship, brought into this country, and
sold here, under the authority of the government, the master and crew not
being made prisoners.
CHAP. VII.] Seamen of Merchant Ships.
And as to ships employed in the coasting trade, in the manner be
fore mentioned, it is enacted, by the statute 31 Geo. III. c. 39. s. 5.
“ that the master, commander, or person having charge of the ship,
“shall be obliged to pay the seamen their wages, if demanded, with -
“ in five days after the ship shall be entered at the custom-house, or
“ the cargo be delivered, or at the time the seamen shall be discharg-
“ed, which shall first happen, unless an agreement shall have been
“made to the contrary, in which case the wages shall be paid accord-
“ing to such agreement, deducting in every case the penalties im-
“posed by this act, under the like forfeiture of twenty shillings, to be
“ recovered in the same manner as with regard to ships coming from
“ abroad; and such payment shall be good in law, notwithstanding
‘. any action, bill of sale, attachment, or incumbrance whatsoever.”
As to ships employed in the slave trade ; it is enacted, by the stat-
ute 39 Geo. III. c. 80. s. 34. that upon the arrival of every ship at
her discharging port in Great Britain, the officers and seamen there-
in shall be continued in full pay and provisions, until the ship is
cleared inwards, or their accounts are settled and paid. But no time
of payment being mentioned in the body of this statute, or in the ar-
ticles annexed to it, Mr. Abbott(s) conceives the general rule before
mentioned, with respect to ships coming from abroad, applies to ships
engaged in this trade also.
4. Of the Remedy for the Recovery of Wages.
Seamen, in ordinary cases, have a threefold remedy for the recov-
ery of their wages, viz. against the ship, the owners, and *the mas-
ter; (1) the master, whether appointed to that office at the commence-
ment, or succeeding to it in the course of the voyage, can only sue
the owners personally in a Court of Common Law. But as he gen-
erally receives the freight and earnings of the ship, and may pay him-
self out of the money in his hands he has not often occasion for the aid
of a court of justice to obtain his right,(v) He has not, however, any
lien on the ship for wages, or money paid for stores or repairs done in
England.(u) -
The suit of the seamen in the Court of Admiralty is said(w) to be
frequently spoken of as an excepted case, and indulgence granted to
them on account of the convenience and advantage of proceeding in a
court, in which all may join in one suit, and payment may be obtained
out of the value of the ship; and of the presumption that they, who
contract with the master, contract with him on the credit of the ship:
whereas the master, who contracts with the owners, is presumed to
trust to their personal credit.
(s) Page 410.
%. 392
(t) Abbott,
421.
(v) Ibid.
(w) Wilkins
v. Carmich-
ael, Doug.
101.
(w) Ibid.
352
t ©f Owners, Masters, and [PART II.
In pursuance of this distinction between the remedies of the sea-
(r) Wide Ab- men and the master, it is now settled,(a) that if the hiring be on the
bott, 421,
422.
(y) Ibid. 422.
(3) Ibid.
(a) Wide Ab-
|bott, 430.
(b) Clement
v. Gwnhouse,
5 Esp. Rep.
83.
(c) 2 Geo. II.
c. 36, 8. 8. 31
Geo. III. C.
39, s, 6,
usual terms, and made by word, or by writing only without seal, the
seamen, or any one or more of them, and every officer, except the
master, may sue in the Court of Admiralty ; and may, by the pro-
cess of that court, arrest the ship as a security for their demand,
or cite the master or owners personally to answer to them. And
the seamen may sue there not only for the wages earned in the course
of the voyage, but for those earned in rigging and fitting out a ship
for a voyage on which they have engaged to proceed, if the owners do
not afterwards think proper to send the ship on the intended voy-
age.(y) And it seems also that they may sue there for the wages con-
tracted to be paid to them for navigating a ship from one port of this
country to another.(2)
In proceeding against the ship in specie, if the value thereof be in-
sufficient to discharge all the claims upon it ; the seaman's claim for
his wages is preferred before all other charges, for the same *reason
that the last bottomry-bond is preferred to those of an earlier date :
the labour of the seamen, having brought the ship to the destined port,
has furnished to all other persons the means of asserting their claims
upon it, which otherwise they could not have had.(a)
In the Courts of Common Law, the seamen may sue either the
master, as the person immediately contracting with them, and an-
swerable to them, or the owners, as the persons virtually contracting
with them through the agency of the master, and answerable for the
performance of his engagement. And in suits in the Courts of Com-
mon Law the form of action depends upon the nature of the contract:
if the contract be under seal, an action of debt or covenant must be
brought ; if it be not under seal, an action of debt or of assumpsit,
If, however, ship's articles are put under seal, but by the articles they
are expressed to be under hand only, and it appear clearly not to
have been the intention of the parties to enter into a sealed instru-
ment, an action of assumpsit for wages will lie.(b)
The contract, whatever be its form or nature, always remains in
the possession of the master or owners ; and the statutes(c) expressly
ordain, that where it becomes necessary to produce the contract in
court, no obligation shall lie on the seamen to produce it, but on the
master or owners of the ship, and that no seamen shall fail in any
suit or process for the recovery of wages for want of the production
of it. -
In the fishing trade, particularly in the whale fishery, the seamen
usually serve under an engagement to receive a certain proportion of
CHAP. VII.] Seamen of Merchant Ships,
353
the profits of the adventure. Such an engagement is said(d) to be
rather in the nature of a partnership than of a contract of hiring and
service ; in which case the ordinary remedy for their respective shares
could only be by bill in Chancery : it being a general rule, that one
partner cannot maintain an action at law against his co-partner
for a moiety of their joint stock and profits in trade.
But in the case of Wilkinson v. Frazier,(e) it was ruled by Lord
Alvanley, Ch. J. at nisi prius, that if a sailor engages on a "whaling
voyage, and is to receive a certain proportion of the profits of the
voyage in lieu of wages, he may, after the sale of the cargo, maintain
an action for his wages against the captain, and shall not be consider-
ed as a partner. And his lordship observed, “That the share was in
“ the nature of wages, unliquidated at the time, but capable of being
“reduced to a certainty on the sale of the oil, which had taken place:
“ and that he should not therefore consider them as partners, but as
“entitled to wages to the extent of their proportion in the produce
“of the voyage.”
For more concerning owners and masters of ships wide post,
Part III. tit. “Bailment of Goods,” &c.
VoI. I. [45]
(d) Abbott,
382.
(e) 4 Fsp,
Rep. 182.
% 394
CHAPTER VIII.
of Conrn ACTS AND AGREEMENTS WITH PARISH OFFICERS.
CHURCHWARDENS de facto, may maintain an action a-
gainst former churchwardens, for money received by them for the use
of the parish, though the validity of the election of the plaintiffs to the
office be doubtful, and though they be not the immediate successors
of the defendant.
(a) 2 H. B1. Thus, in the case of Turner and another v. Baynes,(a) which was
Fº .r* an action of assumpsit by the churchwardens of the parish of Stow
Eagle, io. Market in Suffolk, against a former churchwarden. The usage of
* 22. and the parish had been for the vicar to choose one churchwarden, and the
ac. Abr. tit. # * * e tº tº tº a tº
on.' parishioners the other. But disputes having arisen, both the plaintiffs
dens, E. were chosen by the parishioners at Easter, 1794, and continued in
office till Easter, 1795; during which time, viz. in Hilary Term,
1795, the action was brought against the defendant, who had been
churchwarden from Easter, 1790, to Easter, 1791, and who had ad-
mitted a sum of money to be in his hands, on the balance of his ac-
counts at Easter, 1791, when he went out of office.
The first count of the declaration was, for money had and received
to the use of the plaintiffs as churchwardens, and the promise to them
as churchwardens. The second, for money had and received to the
tº use of the inhabitants of the said parish of Stow Market, and the prom-
ise to the plaintiffs as churchwardens. The third, on an account stat-
ed with the plaintiffs as churchwardens, of money owing from the de-
fendant to them as churchwardens, and the promise accordingly.
# 396 The fourth on an account stated with the plaintiffs as churchwardens,
of money owing from the *defendant to the inhabitants of the said.
parish, and the promise to the plaintiffs as churchwardens, and the
breach was laid to the damage of the inhabitants of the said parish.
At the trial, before Mr. Justice ºffshhurst, at the Suffolk assizes,
the plaintiffs were nonsuited, chiefly on two grounds : 1st. That they
were not duly appointed churchwardens; and 2dly. That they were
not the immediate successors of the defendant in the office.
But upon a motion for a new trial the court of Common Pleas said,
“They were very clearly of opinion that the action was maintaina-
“ble by the plaintiffs, on both the grounds taken in the argument;
“ that being admitted, and sworn into the office, and acting as church.
GHAP. VIII.] With Parish Officers, 355
“wardens, the defendant who was a wrongdoer, in withholding the
“ money, should not be permitted to deny their right to bring the ac-
“tion : and that churchwardens being a corporation for the purpose
“of taking care of the goods of the church, the right to sue for mon-
“ey withholden from the parish passed from one set to the other, it
“being perfectly immaterial, whether the immediate or any other
“ successors of the defendant brought an action which was not found-
“ed in privity between them.”
Churchwardens when chosen are a corporation ; and, as such, they
are said(b) to be morally competent to assent to a reasonable con. (b) Powell
tract or agreement beneficial for the parish ; and thereby to bind the fººtace,
parishioners and their successors, and also succeeding churchwardens.
Thus,(c) an agreement made by the churchwardens of a parish, that
the five o’clock bell in the morning should not be rung; in consider- º ºft.
ation whereof the parties, inconvenienced thereby, covenanted with 2 P. Wms.
the churchwardens to erect a new cupola, clock and bell; the court “.
of Chancery decreed a specific performance of the agreement by an
injunction, not to ring the bell during the lives of the parties who had
erected the cupola, &c. pursuant to the agreement.
*º-º-
*2 Of Contracts with Overseers of the Poor respecting the Mainte- # 397
nance, &c. of Paupers.
An action(d) was brought by an apothecary against the overseers of $ºr Watson
a parish for the cure of a pauper, who boarded with her son out of the id ºther,
parish, under an agreement made with him by the defendant Zºurner, Scace. Trim.
who was the only acting overseer of the parish. The pauper was sud- º:
denly taken ill, and her son called in the plaintiff who had attended 192.
her for four months, and cured her. After the cure Turner was ap-
plied to, and promised to pay the plaintiff's bill. It was held, that
though there was no precedent request from the overseers, yet the
promise was good, notwithstanding the statute of frauds; for over-
seers are under a moral obligation to provide for the poor. 2dly.
That as Turner was the only acting overseer, the other was bound by
his promise.
But the law will not raise an implied promise by the overseers,
&c. of a parish where a pauper is settled, to reimburse the money laid
out by another parish in which he happened to be in, for providing
him with necessary medical assistance, &c.
Thus, in the case of Atkins and others v. Banwell and another,(e) (e) 2 East's
which was an action of indebitatus assumpsit, brought by the plaintiffs Rép. 505,
as the parish officers of Toddington, in the county of Bedford, against
the defendaats, as the parish officers of Milton Bryant in the said
of Contracts and Jāgreements, [PART Iſ,
* 398
(f).Ante,89 7,
(g) 3 Espo
Rep. 91.
county, to recover 14l. 12s. for money paid, laid out, and expended by
the plaintiffs for meat, drink, board, lodging, medicines, medical assist-
ance, and other necessaries, found and provided by them for one John
Mitchell, his wife and family. At the trial a verdict was found for
the plaintiffs, subject to the opinion of the court on the following case :
“The plaintiffs are the parish officers of Toddington, and the de-
“ fendants are the parish officers of Milton Bryant. John Mitchell
“ was a pauper legally settled at the time of his illness and death
“hereafter mentioned, in Milton Bryant, but resided with his wife
“*and family at Toddington, and was there suddenly attacked with
“ dangerous illness, which prevented his being moved from the place
“ of his residence to that of his settlement without endangering his
“life. The plaintiffs gave notice to the defendants of the illness of
“ their pauper within two or three days after the pauper was so ta-
* ken ill. . The pauper’s illness continuing, he afterwards, and about
“ three weeks from such notice, died of such illness in the parish of
“Toddington; and the plaintiffs, as parish officers of that parish, from
“ the time of sugh notice up to the pauper's death, laid out 14l. 12s.
“ as well for necessaries for the pauper and his family, as for medi-
“cines and medical assistance for the pauper, and also on the funeral
“of the pauper after his death. The present action was brought to
“recover that sum. The jury found that there was no express prom-
“ise of the defendants to pay it to the plaintiffs. The question for
“ the opinion of the court was, whether such action be maintainable in
“ law P If the court should be of that opinion, then the verdict for the
“plaintiff was to stand; if not, a nonsuit to be entered.”
The court were of opinion, that this action was not maintainable :
And Lord Ellenborough, Ch. J. said, “a moral obligation is a good
“consideration for an express promise, as was held in the case of
“ Watson v. Turner ;(f) but it has never been carried further, so as
“ to raise an implied promise in law. There is no precedent, prin-
“ciple, or colour for maintaining this action.”
Parish officers are bound to take care of casual poor ; and if a per-
son, not a parish officer, takes care of a person coming within that
description, and for whom the parish officers would be liable to pro-
vide, he has a right to recover against them the expenses incurred on
such an occasion.
Thus, in the case of Simmons v. Wilmot and others,(g) which was
an action of assumpsit against the defendants as churchwardens and
overseers of the poor of the parish of Isleworth, for meat, drink, lodg-
ing, medicines, attendances, &c. found and given for one Thomas
Shaw. The case in evidence was, that Shaw, who was carter to a
Mr. Willan, residing at Mary-le-bone Park, (not within the parish of
CHAP. VIII.] With Parish Officers.
Isleworth) had been thrown from the cart, within the parish of Isle-
worth, and severely bruised; so much as to render it unsafe to re-
move him. He was brought to the plaintiff’s house, where he was
kept and attended for 10 days, until he recovered. It was also pro-
ved, that when Shaw was brought to the plaintiff’s house, he (the
plaintiff) sent to one of the overseers, to inform him of it; the over-
seer directed the person who brought the message, to go to the beadle,
and also desired him to assist in taking care of the man. It appear-
ed that Shaw was a weekly servant to Mr. Willan; and that after he
had recovered, the plaintiff applied repeatedly to Mr. Willan, to pay
him for the expenses incurred in taking care of Shaw ; and sent him
in a bill amounting to 8l. 18s. 6d. ; Mr. Willan offered him 5l. 58.,
which he refused to take ; and he then applied to the parish officers,
and sent in a larger bill to them; it also appeared, that after the man
had recovered, the vestry had made an order, stating, “That as an
“ encouragement to humanity, they had ordered Simmons five guin-
“eas;” but at the same time protested against their liability to reim-
burse him for the expenses incurred, knowing Shaw to be a servant
of Mr. Willan, and conceiving Mr. Willan liable; and the five guin-
eas was merely voted as a voluntary donation or reward for his hu-
manity. This sum the plaintiff also refused to accept, and brought
this action against the defendants as parish officers, for all the expen-
ses incurred. .
Lord Eldon, Ch. J. said, “The questions in this case are, 1st.
“Whether Simmons in point of law, has a demand against the par-
“ish officers, either from the liability imposed upon them by law to
“take care of casual poor, or by express agreement P and, 2dly.
nºther, having such démand, he has relinquished it, and bound
“ himself to adhere to the demand he first made against Willan as
“the master of Shaw 2 The case is new to me. It has been decid-
“ed,(h) that if a servant in husbandry has received relief from the
“parish officers, they cannot recover it against the master, as not
“being of that description of servants for whom the master is
“bound to provide; but that if he was of that description the parish
“officers could recover, Lord Kenyon has ruled,(i) that when a ser.
“vant living under the roof of his master falls sick, the master is
“liable for medicines provided for the servant, if his illness has not
“been the consequence of his own misconduct or debauchery. If
“Shaw had been a servant of that description, Willan would have
“been liable; but it does not follow that, because Willan might be
“liable, the parish officers are thereby excused. It comes to this
“ point, was the person relieved within the description of casual poor :
“if he was, the parish officers are bound to take care of him: a com-
“mon person would not; but if a common person does take care of
* 399
(h) Ante, p. -
230.
(i) Ibid.
# 400

353
Of Contracts and Agreements. [PART II.
“him, on the liability of the parish officers, I think he has a right to
“recover against them.
“With respect to the application, in the first instance, to Willan,
“the plaintiff might have reasoned thus: ‘I will try to get the money
“‘from Willan, in order to relieve the parish.” That alone will not
“discharge the parish officers; there must have been some express
“abandonment of his claim against the plaintiffs, and an admission
“ that he would look to Willan alone. He has acted imprudently,
“perhaps wrong, in sending in a bill to the parish officers larger than
“the one he sent in at first to Willan; and he must be bound by the
“first bill; but even if the jury should think 8l. 18s. 6d. too much,
“ and that five guineas is sufficient; if under all the circumstances,
“ and the law as I have stated it, the jury should be of opinion that
“the parish officers are liable, I think they must give a verdict for
“five guineas, notwithstanding the order of vestry, for I do not
“think the order of vestry, protesting against their liability, and of-
“fering it as a voluntary kindness, can be considered as a tender of
“so much.”
=sº-
3. Of Contracts with Parish Officers respecting the Maintenance, &c.
of Bastard Children.
The statute 6 Geo. II. c. 31. only authorises parish officers to take
security from the putative father of a bastard child to indemnify the
parish; and therefore where they had taken a promissory note abso-
lute for a sum certain, to which there was a plea of tender of a lesser
Sum, as the amount of the charge actually sustained by thiºparish,
which tender was found for the defendant; the court held, that the
plaintiffs could not recover further upon the note.
*Thus, in the case of Cole and others v. Gower and Piggott,(k)
which was an action of assumpsit on a promissory note for 6l. The
defendants pleaded non assumpsit as to all but 5l. and a tender of
that sum. The facts were shortly these: On the 22d of January, #
1803, one Mary Taylor, single woman, being a pauper of the parish
of Pulloa-hill, swore a bastard child (of which she was then pregnant)
to Gower, one of the defendants, who was apprehended under a war-
rant. Shortly after his arrest he offered to compromise the affair
with the parish, and to pay the plaintiffs (the parish officers) 201. if
they would give him time; and they agreed to take the 201, which
was to be paid by three instalments, to be secured by three joint pro-
missory notes of the defendants, to bear date respectively the 8th of
.April. The first (whereon the present action is brought) at two
# 401
(k) 6 East's
Rep. 110.
months’ date for 6l. ; the second at twelve months for 7l.; the third
CHAP. VIII.] With Parish Officers.
359
at twenty-four months for 71. The three notes were accordingly pre-
pared and executed. The first note became due on the 11th of June,
1803, and on the 17th of the same month Mary Taylor, the pauper,
was delivered of a stillborn bastard child in the parish of Pullow-
hill. And the defendants being called upon to discharge their
first note, tendered 5l., in part payment of it, but refused to pay the
remaining 20s, urging that 5l. was the full extent to which the parish
had been damnified. The defendants, at the trial proved their plea
of tender of the 5l.; and the plaintiffs did not make out in evidence,
that the parish had been damnified to above the amount of 51, but on
the contrary, they had only expended Sl. 148. by reason of the prem-
ises. The question for the opinion of the court was, whether the
plaintiffs were entitled to recover.
The court determined, that the plaintiffs were not entitled to re-
cover more than the sum paid into court.
Lord Ellenborough, Ch. J. said, “I am of opinion that the plain-
“ tiffs are not entitled to recover beyond the sum paid into court,
“whether considering the contract as void upon principles of public
“policy, or considering it with relation to the individuals with whom
“it was made, as a contract for gain or loss by persons clothed with a
“ public trust, upon the subject matter of their “trust, and giving them
“an interestin the mal-execution of it. It is a shocking consideration
“ that by means of such a security as this the parish officers, who have
“a public duty imposed upon them to take care that the father shall
“make a proper provision for the maintenance of the child, acquire an
“interest that the child should live as short a time as possible. In
“the case, even of a private trustee, the Court of Chancery will not
“permit him to become a purchaser of an estate which he is entrusted
“to sell, because it gives him an interest to lessen the purchase mo-
“ney. Considering the security, as given to the parish officers only
“in their individual capacity, it is giving them a temptation to deal
“with negligence, at least, in that most important trust, the care of
“children of tender age, which is committed to them. But if made
“to them in their representative character, and the parish were to re-
“ceive the benefit of the money when recovered, which was the man-
“ifest intention of the parties, it is placing parish officers in a situa-
“tion which the legislature did not mean to do, and which public pol-
“icy forbids. The law did not mean to make this a matter of specu.
“lation of loss or gain to the parish : it is said, that the security
“shall be given to them in order to indemnify the parish. I
“therefore consider the law as having spoken upon the subject; and
“it having said, that the security shall be taken for an indemnity, it
“has excluded every other consideration. The parish officers are
“not to speculate, but to take the security, as a matter of public du-
“ty, in the form prescribed by the act; and taking it in the form they
% 402
360
Of Contracts and flgreements, &c. [PART II,
* 403
“have done is contrary both to the direct letter and to the general
“policy of the law.”
Lawrence, J. said, “I agree with the rest of the court upon the
“construction of the statute, though I confess I have had some doubt
“upon the inexpediency of the practice which has prevailed ; for it
“may often happen that the putative father may be able to procure
“friends to enter into security for him to a certain amount, who
“would not undertake to indemnify the parish to an indefinite ex-
“tent: and they may thus be left without any other security, than
“the precarious future responsibility of the putative father him-
“self. The statute, however, certainly meant merely to ºmni-
“fy the parish, and not to create a speculation of loss or profit to them
“upon the life or death of the child, and the parish officers should have
“*no temptation to be careless in the execution of their trust. And
“it must be admitted that they will not have the same interest to
“take care of the child, for whose maintenance they have received
“security for a sum certain, as if it were taken only for their in-
“demnity. Upon the whole therefore, weighing the inconveniences
“on either side, it is better to abide by the strict letter of the sta-
“ tute.”
OHAPTER IX.
OF TRUSTEES.
A BREACH of trust, in some instances, may be the ground of afi
action of assumpsit, though the usual remedy is by bill in equity.
Thus, in the case of Smith and others v. Jameson and another,(a) (a) 5 Terrå
where a trustee having received trust-money, applied it to his own Rép. 601.
use, in the way of his trade : the court held, that he was liable to an ***.
º & º - : ~ : Willis’ Rép.
action of assumpsit, for money had and received, for the money so mis- 30... .
applied.
But trustees, by submitting matters of trust to arbitration, do not
make themselves personally liable, except so far as they have effects
of the trust-estate.
Thus, in the case of Davies v. Ridge and others,(b) which was an , ...,
e º ..., (b) 3Esp;
action of assumpsit upon an award, and for money had and received, Rep. 1044
against the defendants, as trustees of a Mr. Pigot, of Peplow in
Shropshire. The plaintiff had been a judgment creditor for 9,000l.,
part of which had been paid, and it had been referred to arbitration,
to ascertain how much was really due upon the judgment. The ar-
bitrators had made an award in favour of the plaintiff.
Lord Eldon, Ch. J. said, “The plaintiffmust show the defendants
“ had effects of the trust-estate; submitting to arbitration did not
“ make them personally liable.”
*It was proved that one of the trustees had admitted, that he had % 405
money of the trust-estate in his hands : and upon this evidence it
was submitted, that the admission of one of them bound the rest.
Lord Eldon said, “It would, if they were all personally liable;
“but not where they are only trustees.”
Vol. I. [46]
# 407
CHAPTER X.
ÖF BANKRUPT's AND THEIR ASSIGNEEs.
THE subject of the present Chapter will be considered under
the following heads:
1. Of a Bankrupt’s Certificate and Discharge from Debts, &c.
2. Of the Action of Assumpsit by a Bankrupt, relating to Property
which he holds in Trust.
3. Of Contracts made with an uncertificated Bankrupt.
4. Of a Bankrupt’s fllowance, &c.
5. Of Promises to pay a Debt barred by a Bankrupt’s Certificate.
6. Of the Assignment of a Bankrupt’s Estate to his ºffssignees ; and
of their Right to receive and discharge Debts, and prosecute ºffe-
tions, &c.
z. Of Payments, &c. made to, or by a Bankrupt, when protected.
8. In what Cases an Action of Assumpsit will lie at the Suit of Jis-
signees for Money received of a Bankrupt, either in Contempla-
tion of, or after an Act of Bankruptcy.
*9. Of an Action at Law by Assignees, for Money or Goods belong-
ing to a Bankrupt abroad, attached at the Instance of a Creditor
residing in England, after Notice of the Assignment, &c.
10. In what Cases J'ssignees are liable to an Action of Assumpsit for
Rent, and for Money had and received, &c.
11. Of the Assignee's Liability to an Action of Assumpsit for a Divi-
dend, and for an Allowance to a Witness, &c.
12. Of Monies received by Jìssignees, who have been removed, &c.
£hAP. X.] Qf Bankrupts and their Assignees. 363
13. Of Promises to pay Money in Consideration that the Assignees
will forbear to examine the Bankrupt, or will stay Proceedings
wnder the Commission, &c. *
*1. Of a Bankrupt’s Certificate and Discharge from Debts, &c. % 408
By the statute 5 Geo. II. c. 30. s. 7. it is enacted, “That all and
“every person and persons so become, or to become bankrupts, who
“shall in all things conform, as in and by this act is directed, shall
“be discharged from all debts, by him, her, or them, due or owing at
“ the time that he, she, or they did become bankrupt. And in case any
“such bankrupt shall afterwards be arrested, prosecuted, or implead-
“ed for any debt due before such time, as he, she, or they became
“bankrupt, such bankrupt shall be discharged upon common bail, and
“shall and may plead in general, that the cause of such action or suit
“ did accrue before such time as he, she, or they became bankrupts,
“ and may give this act, and the special matter in evidence; and the
“ certificate of such bankrupt’s conforming, and the allowance there-
“ of, according to the directions of this act, shall be, and shall be al-
“ lowed to be sufficient evidence of the trading, bankruptcy, commis-
“sion, and other proceedings, precedent to the obtaining such certifi-
“ cate, and a verdict shall thereupon pass for the defendant, unless
“ the plaintiff, in such action, can prove the said certificate was ob-
“tained unfairly and by fraud, or unless the plaintiff, in such action,
“ can make appear any concealment by such bankrupt to the value of
“ ten pounds ; and if a verdict"pass for the defendant, or the plaintiff
“should become nonsuited, or judgment be given against the plaintiff,
“ the defendant shall recover his full costs.”
But by section 9. it is provided and enacted, “That in case any
“ commission of bankruptcy shall issue against any person or persons,
“ who shall have been discharged by virtue of this act, or shall have
“ compounded with his, her, or their creditors, or delivered to them,
“his, her, or their estate or effects, and been released by them, or
“ been discharged by any act for the relief of insolvent debtors after
“the time aforesaid, that then, and in either of those cases, the body
“ and bodies only of such person and persons, conforming as afore-
“ said, shall be free from arrest and imprisonment, by virtue of this
“ act; but the future estate and effects of every such person and
“ persons shall remain liable to his, her, or their creditors, as before
“ the making of this act, (the tools of trade, the necessary house- * 409
“ hold goods and furniture, and necessary wearing apparel of such
“ bankrupt, and his wife and children only excepted,) unless the
“ estate of such person or persons, against whom such commission
“shall be awarded, shall produce clear, after all charges, sufficient to
Of Bankrupts and their Assignces. [PART II.
%. 410
“pay every creditor, under the said commission, fifteen shillings in
“ the pound, for their respective debts.”
And by the 10th section of the same act, it is also provided and
enacted, “That no discovery, upon oath, or solemn affirmation, to be
“made by any bankrupt or bankrupts, of his, her, or their estate and
“effects, pursuant to this act, shall entitle such bankrupt or bank-
“rupts to the benefits allowed by this act, unless the commissioners,
“authorised by such commission, or the major part of them, shall,
“ in writing under their hands and seals, certify to the Lord Chan-
“ cellor or Lord Keeper, or commissioners for the custody of the Great
“Seal of Great Britain, for the time being, that such bankrupt or
“bankrupts hath or have made a full discovery of his, or her estate
“ and effects, and in all things conformed himself, herself, or them-
“selves, according to the directions of this act; and that there doth
“ not appear to them any reason to doubt of the truth of such dis-
“covery, or that the same is not a full discovery of all such bankrupt’s
“estate and effects; and unless four parts in five in number and
“value of the creditors of such bankrupt or bankrupts, who shall be
“creditors for not less than twenty pounds respectively, and who
“shall have duly proved their debts under such commission, or some
“ other person by them respectively duly authorised thereunto, shall
“sign such certificate, and testify their consent to such allowance and
“ certificate, and to the said bankrupt’s discharge, in pursuance of
“ this act, to be also certified by such commissioners ; but the said
“ commissioners shall not certify the same, till they shall have
“ proof by affidavit or affirmation, in writing, of such creditors, or of
“ the person by them respectively authorised for that purpose, sign-
“ing the said certificate, and of the power and authority by which
“any person shall be authorised by any creditor to sign such certiſi-
“cate for any creditor ; which affidavit or affirmation, together with
“ such warrant or authority to sign, shall be laid before the Lord
“High Chancellor, Lord Keeper, or commissioners of the Great Seal,
“with the said certificate, in order for the allowing and confirming the
“same ; and unless such bankrupt make oath, or, being of the people
“*called Quakers, solemnly affirm, in writing, that such certificate
“and consent of the creditors thereunto were obtained fairly and
“without fraud, and unless such certificate shall, after such oath or
“affirmation of the bankrupt, be allowed and confirmed by the Lord
“Chancellor, Lord Keeper, or commissioners for the custody of the
“Great Seal of Great Britain, for the time being, or by such two of
“the justices of the Court of King’s Bench, Common Picas, or Bar-
“ons of the Court of Eacchequer, at Westminister, to whom the con-
“sideration of such certificate shall be referred by the Lord Chan-
“ cellor, Lord Keeper, or commissioners of the Great Seal, for the
“time being ; and any of the creditors of such bankru pt are to be al-
“lowed to be heard, if they shall think fit, before the respective
CHAP. X.] Of Bankrupts and their Assignees.
“ persons aforesaid, against the making such certificate ; and against
“ the confirmation thereof; nor shall any commissioner sign such cer-
“tificate till after four parts in five in number, and value of the said
“creditors shall have signed the same as aforesaid.”
And by the 12th section of the act it is further provided and en-
acted, “ That nothing in this act shall be construed to extend, or give
“ or grant any privilege, benefit, or advantage, to any bankrupt
“ whatsoever, against whom a commission of bankrupt, under
“ the Great Seal of Great Britain, since the said fourteenth day
“ of May, which was in the year of our Lord one thousand seven
“hundred and twenty-nine, hath issued, or hereafter shall issue, who
“hath or shall, for or upon marriage of any of his or her children,
“ have given, advanced, or paid above the value of one hundred pounds,
“unless he or she shall prove, or by his or her books fairly kept, or
“otherwise, upon his or her oath, or being of the people called Qua-
“kers, upon solemn affirmation, before the major part of the commis-
“sioners in such commission named and authorized, that he or she
“had at the time thereof, over and above the value so given, advanc-
“ed or paid, remaining in goods, wares, debts, ready money, or other
“estate real or personal, sufficient to pay and satisfy unto each and
“every person, to whom he or she was anywise indebted, their full
“and entire debts ; or who hath or shall have lost in any one day,
“ the sum or value of five pounds, or in the whole sum or value of
“one hundred pounds, within the space of twelve months next pre-
“ceding his, her, or their becoming bankrupt, in playing at or with
“cards, dice, tables, tennis, bowls, billiards, shovel-board, or in or by
“cock-fighting, *horse-races, dog-matches, or foot-races, or other
“pastimes, game or games whatever, or in or by bearing a share or
“ party in the stakes, wagers, or adventures, or in or by betting on
“ the sides or hands of such as do or shall play, act, ride, or run as
“aforesaid ; or that within one year before he or she became bank-
“rupt, shall have lost the sum of one hundred pounds, by one or inore
“contracts for the purchase,sale, refusal, or delivery of any stock of an y
“ company or corporation whatsoever ; or any parts or shares of any
“government or public funds or securities ; where every such con-
“ tract was not to be performed within one week from the time of
“ the making such contract, or where the stock or other thing, so
“bought or sold, was not actually transferred or delivered in pursu-
“ance of such contract.”
By the statute 7 Geo. I. c. 31. s. 2. it is also enacted, “ That all
“ and every person or persons, who now are or shall become bank-
“rupts, shall be discharged of and from all and every bill, bond, prom-
“issory note, or other personal security for money, payable at the end
“ of three, four or six months, or any other future days of payment,
“ and shall have the benefit of the several statutes now in force against
“bankrupts, in like manner, to all intents and purposes, as if such
# 411
Of Bankrupts and their Assignees. | [PART II.
# 412
(a) See Co.
Bankrupt
Laws, 465.
471. &c.; and
as to what
debts may or
may not be
proved under
the commis-
sion, vide
game book,
cap. 6.
(b) Ibid. 503.
(c) Snaith v.
Gale, 7 Term
Rep. 364.
(d) Ibid. 197.
“ sum of money had been due and payable before the time of his be-
“ coming a bankrupt.”
The statute 10 Ann. c. 15, s. 3, enacts, “That by the discharge of
“any bankrupt or bankrupts by force of that act, or any other acts
“relating to bankrupts, from the debts by him, her or them due and
“ owing, at the time that he, she or they did become bankrupt, shall
“ not be construed, nor was meant or intended to release or discharge
“any other person of persons, who was or were partner or partners
“with the said bankrupt in trade, at the time he, she or they became
“bankrupt, or then stood jointly bound, or had made any joint contract
“together with such bankruptor bankrupts, for the same debt or debts,
“from which he was discharged, as aforesaid ; but that notwithstanding
“such discharge, such partner and partners, joint obligor and obligors,
“ and joint contractors, with such bankrupt and bankrupts, as afore-
“ said, shall be and stand chargeable with and liable to pay such debt
“ and debts, and to perform such contracts, as if the said bankrupt
“ and bankrupts had never been discharged from the same.”
*A bankrupt’s certificate is a discharge from all debts, due or
owing by him at the time of his bankruptcy, which were proveable
under his commission; and it is a bar against all creditors, whether
they have signed the certificate or not.(a) A certificate, however, is
no bar to a contract which does not relate to the payment of money;
but it is for the doing or forbearing to do some other act.
So, a certificate does not discharge a bankrupt from a contingent
debt, which is not reduced to a certainty before the act of bankruptcy
is committed, because it cannot be proved under the commission ; and
in questions whether a debt is discharged or not by a certificate, the
point agitated has always been, whether it could be proved or not :
the creditor’s right to prove, and the bankrupt’s right to be discharged
by the certificate, being reciprocal and co-extensive.(b)
Therefore, where fl. lent his acceptances to the bankrupt who gave
him a receipt as for so much money the acceptances did not become
due till after the bankruptcy. It was held that the certificate did not
bar, and that the receipt did not create a debt proveable.(c)
So, if a person lends a trader stock in the public funds, to be re- *
placed as stock, without naming any particular time at which it is to
be invested: if he becomes bankrupt before he has been required to
replace the stock, it is a contingent debt, and cannot be proved; (d) for
it is clear, that where there is only a cause of action existing, and
the debt is to arise on a stipulation which has not been broken, pre-
CHAP. X.] Of Bankrupts and their Assignees.
367
vious to the time of the bankruptcy, and the debt remains to be in-
quired into, there the creditor cannot prove his debt under the com-
mission, and the demand will remain undischarged by the certifi-
cate.(e)
So, in the case of Parslow v. Dearlove, (f) it was determined that
money payable half yearly for the education and board of the children
of a bankrupt, is not a debt due till the end of the half year, so as to
be proveable under a commission of bankrupt against the parent, who
became bankrupt a few days before the end of the half year, though he
had just before his bankruptcy, taken his son home for the holidays, the
contract not being thereby put an end to ; and consequently the bank-
rupt’s certificate, under the statute 5 Geo. II. c. 30. is no bar to an ac-
tion against him for the half year’s education, &c. The statute 7
Geo. I. c. 31. s. 1. which enables debts payable at a future day to be
proved under the commission, is confined to written securities.
So, in the case of Bamford v. Burrell,(g) it was held, that a debt
accrued subsequent to an act of bankruptcy, and previous to the is-
suing of the commission, is not barred by the certificate.
So, where a man undertakes to pay a sum of money for another,
his undertaking alone will not create a debt that he can prove under
a commission ; and if an act of bankruptcy intervenes between the
undertaking and the actual payment, it can never be proved, and the
creditor can only resort to the bankrupt personally. But if the par-
ty engaging to pay the debt of another is taken in execution for that
debt, his imprisonment is considered as a payment and satisfaction of
the debt, sufficient to give him a right of proving under the commis-
S10 Il.
Thus, in the case of Chilton v. Whiffen, and another,(h) which was
an action of assumpsit, wherein the plaintiff declared, that the de-
fendants and one William Hinkley were co-partners in trade and
merchandize; that Hinkley drew a bill of exchange upon the plain-
tiff, dated the 18th day of March, 1766, for 65l. payable to one Ro-
Öert Clay, or his order, fifty-five days after date; and in consideration
that the plaintiff would accept the said bill, the defendants undertook
and promised to find money to pay the bill, take it up, and to save
the plaintiff harmless and indemnified, by reason of his acceptance
thereof; that he accepted the bill, which became due the 16th of May,
1766, and was indorsed by Robert Clay to Heathfield and Smith,
who, on the 15th of September, 1761, sued out process, and caused
plaintiff to be arrested and held to bail for the said 65l.; that, on the
24th of November, 1766, he put in bail to that action; and in Janua-
*/, 1767, was surrendered to the marshal of the Marshalsea, was
(e) Ib. 199.4
Term Rep.
571.
(f) 4 East's
Rep. 438.
% 413
(g) 2 Bos. &
Pull. 1.
(h) 3 Wils,
13.
368
Of Bankrupts and their Assignees. [PART II.
* 4 || 4
(i) 2 Bl. Rep.
$39. See al-
so 3 Wils.
528. Doug.
166. n. 55. S;
P.
(k) Cowp.
§ 25.
§ 4 15
charged in execution for the *debt of 65l. and costs, and remained in
execution. The defendant pleaded his certificate in bar, and that
he became bankrupt on the 16th August, 1766.
Lord Chief Justice Wilmot delivered the opinion of the court as
follows: “ That no debt was due or owing from the defendants to the
“plaintiff, until he was discharged in execution, and his body being
“in prison, upon judgment and execution, for a certain sum, is the
“very same thing as if the plaintiff had paid the debt and costs due
“on account of the bill and note; and then, and not before, the de-
“fendants became indebted to the plaintiff; which being after the
“defendants became bankrupts, the plaintiff could not come in under
“ the commission. No debt could be barred by the certificate, but
“what was a debt contracted with certainty before the act of bank-
“ruptcy. Did the defendants owe to Chilton, 3031. 10s. and costs
“ before he rendered his body in satisfaction thereof P which we take
“ to be the same thing as if he had actually paid the debt and costs
“thereof. They certainly did not. They had promised to pay the
“money, or furnish the plaintiff, Chilton, with money to take up the
“bill, and save him harmless. They broke their promise: Chilton
“was terrified and arrested. Here is an injury to a certain degree,
“but no debt owing by the defendants to Chilton before his body was
“in execution for the certain sum. How could the plaintiff, Chilton,
“at the time of the commission of bankruptcy issued, have sworn to
“a debt before he had advanced a shilling to the defendants P He cer-
“tainly could not, but now his body being in execution, he has there-
“by paid the debt, and consequently may support the present action.”
So, in the case of Young v. Hockley,(i) where the bankrupt, on the
25th June, 1769, drew a bill of exchange on Foung for 57l. 5s. 4d.
payable one month after date, to his own order, which Young, on the
same day, accepted for the accommodation of the defendant. On the
12th July, a commission of bankrupt was issued against the defend-
ant. The bill became due the 28th July, when Young paid it. The
bankrupt obtained his certificate on the 5th of September, 1769, which
was allowed on the 23d October. The court were of opinion that the
certificate was no bar to the action brought by Young, and that the
point was now entirely settled.
*So, in the case of Taylor v. Mills and Magnall,(k) which was an
action of assumpsit for money paid. The facts were these : the de-
fendants were partners with one Bailey ; and, in order to raise money
they had entered into certain bonds. In the year 1765, Bailey with-
drew from the partnership, and wishing to be discharged from these
bonds, application was made to Taylor to become surety instead of
Bailey, to which he consented : upon which the former bonds were
CHAP. X.] Of Bankrupts and their Assignees,
sé9
cancelled. The bonds became due, and afterwards Mills and Mag-
mall became bankrupts. When the obligees had got as much as they
could from the partnership estate, and which amounted to no more than
68. in the pound, they came upon the plaintiff for the residue. He
accordingly paid it, and then brought his action for money paid, laid
out, and expended. -
The court held that the action would lie. Lord Mansfield said,
“ this case is not harder than every other case of a debt arising after
“bankruptcy, upon a pre-existing ground. At the time of the bank-
“ ruptcy, the defendants were not indebted to Taylor; he clearly
“ therefore, could not come in as a creditor under the commission.
“He was not damnified at that time; and till damnified, (which he could
“not be till he had been called upon and had paid) he could not bring
“an action. He did not pay till after the commission issued; con-
“sequently his whole damage and cause of action arose after the bank-
“ ruptcy, and therefore could not be discharged by the certificate.
“With respect to the money received by the original creditors, under
“ the commission, it is a discharge of so much of the debt, and the
“surety is only liable for the remainder ; consequently he can re-
“cover no more against the defendants. But as to that, he is a new
“creditor, and therefore is not barred by the certificate. It is
“an extremely clear case, and not different from any where the
“cause of the action, though it arises after the bankruptcy, is founded
“on a pre-existing ground.”
So, in the case of Paul v. Jones,() it was determined that a surety
who does not pay the debt of the principal till after his bankruptcy,
though called upon and liable to pay it before, may maintain an ac-
tion of assumpsit for money paid, laid out, and expended, notwith-
standing the bankrupt’s certificate.
*But where asurety will not rely on the promise which the law
will raise, but takes a bond as a security, there he has chosen his own
remedy, and he cannot resort to an action of assumpsit for money
paid, but must prove his debt under the commission, the bond being
the debt.(m) *
The bankrupt laws being now adopted in Ireland, if a trader there
becomes a bankrupt, and obtains his certificate, it will operate as a
discharge in an action brought here upon a debt arising in Ire-
land,
(l) 1 Term
Rep. 599.
# 416
(m) 2 Term
Rep. 100.
640. 7 Term
Rep. 97.
(n) B. R.
Mich. 24.
Geo. III. Co,
Bankrupt
Laws. 499.
See also.
Thus, in the case of Ballantine v. Golding,(n) which came before Burrows, v.
the Court of King’s Bench, on a motion to enter an exoneretur on the
Wol. I. - [47]
Jemino. 2
Stra. 733, S.
379
Of Bankrupts and their Assignees. EPART II,
(o) 1 East's
Rep. 6. Vide
Co. Bankrupt
Laws. 500.
* 417
bail-piece, it appeared that the defendant had been a bankrupt, and
obtained a certificate under the Great Seal of Ireland.
The original demand arose upon a bill of exchange, drawn in Ire-
band, and payable by the defendant, who resided there. - .
Lord Mansfield said, “It is a general principle, that where there,
“is a discharge by the law of one country, it will be a discharge in
“ another; that he remembered a case in Chancery of a cessio bon-
ºf orum in Holland, which is held a discharge in that country, and
“ it had the same effect here.” The rule was accordingly made ab-
solute.
But a certificate in a foreign country will not bar a debt contracted
in this country. - • • * * * *- - -
Thus, in the case of Smith and another v. Buchanan and another,(0)
which was an action of assumpsit for goods sold and delivered.
The defendant pleaded first, non-assumpsit ; secondly, for a further
plea in discharge of the persons, estate, and effects of the defendants,
except any property, if any there be, after the date of a certain deed,
dated 23d of September, 1799, after mentioned, acquired or to be ac-
quired by the defendants, by descent, devise, bequest, or in course of
distribution; they say that by a certain law of the state of Marylana,
made on the 10th of April, 1787, entitled, “An act respecting insol-
“ vent debtors :” it was enacted, that any debtor for any sum above
300l. ulight apply by petition to the Chancellor of the said “state, and
offer to deliver up all his property to his creditors, a schedule whereof.
with a list of creditors, should be exhibited therewith ; and there-
upon the Chancellor might direct personal notice of such application
to be given to the creditors, or as many as could be served there with,
or he might direct the notice to be published in the newspapers; and,
on the appearance of the creditors, or their neglect to appear on due
notice, the Chancellor might administer an oath to the debtor, bind-
ing himself to deliver up and transfer to his creditors all his property,
&c. in such manner as the Chancellor should direct; and that the
Cham cellor should thereupon appoint a trustee on behalf of the credi-
tors, and should direct such debtor to execute a deed to such trustee
of all his property, debts, rights, and claims, in trust for the creditors;
“ and thereupon, and upon the execution of the said deed, and after
... the delivery of the property, books, bonds, and other evidences of
“ debts, to such trustee, and his certificate of such delivery, the
“ Chancellor might order that such debtor should forever thereafter
“be acquitted and discharged from all debts by him owing or con-
“ tracted, at any time before the date of such deed ;" and in virtue of
such order, such debtor should be for ever so discharged : provided
that any property thereafter acquired by such debtor by descent, de-
vise, bequest, or in course of distribution, should be liable to the pay-
CHAP: X.] of Bankrupts and their Assignees.
ment of his debts. The plea further stated, that, after the making of
that law, the defendants were joint debtors for more than 300!, ;
that they petitioned the Chancellor; and offered to deliver up alſ
their property to the use of their creditors, with the schedule and list
of creditors thereunto annexed ; that thereupon the Chancellor gave
the due notice to the creditors, and administered the oath to the de-
fendants, and appointed one S. Moale trustee on behalf of the creditors;
and directed the defendants to execute a deed to the said S. M. for
all their property, debts, rights, and claims, &c. in trus; for thei cre-
ditors ; that thereupon the defendants did accordingly, on the 23d of
September, 1799, execute such deed of that date, and did then deliver
up to the said S. M. as such trustee, &c. all their property, books,
&c., who thereupon certified such delivery to the said Chancéllor ;
and thereupon the Chancellor, according to the said act, ordered, that
the defendants should for ever thereafter be acquitted and discharged
from all debts by them owing or contracted, before the date of the said
deed; except that any property, afterwards acquired by them, by des.
cent, &c. should be Håble to the payment *of their debts. The de-
fendants then averred that they, at the time when the several causes
of action in the declaration mentioned accrued, and until and at the
time of the said order of discharge, were inhabitants, and resident in
the said state of Maryland, and that the said several causes of action
accrued, and were owing before the date of the said deed of trust
executed by the defendants to S. M. Wherefore they prayed judg-
ment, and that their persons, estates, and effects, save and except any
property, if any, acquired after the date of the said deed, by the de-
fendants, by descent, &c. might be discharged, &c. A third plea con-
tained the same facts, together with an averment that the defendants
had not; since the date of the trust deed, acquired any property by
descent, &c. and concluded in bar of the action generally. The re-
plication to these two pleas stated that the causes of action in the
declaration mentioned severally accrued to the plaintiffs within this
kingdom of England: to which there was a general demurrer and a
joinder therein.
Lord Kenyon, Ch. J. said, “It is impossible to say that a contract
“made in one country, is to be governed by the laws of another. It
“might as well be contended, that if the state of Maryland haſ enacts
“ed that no debts due from its own subjects to the subjects of Eng-
“ land should be paid, the plaintiffs would have been bound by it.
“This is the case of a contract lawfully made by a subject in this
“ country, which he resorts to a court of justice to enforce; and the
“ only answer given is, that a law has been made in a foreign coun-
“try to discharge these defendants from their debts, on condition of
“ their having relinquished all their property to their creditors. But
“how is that an answer to a subject of this country, suing on a law.”
372.
Of Bankrupts and their Assignees. - [PART II.
(q) 4 Term
Rep. 182. &
fg?.
% a 9
(r) JAnte,416.
“ful contract made here How can it be pretended that he is bound
“ by a condition to which he has given no assent, either expressed or
“implied ? It is true, that we so far give effect to foreign laws of
“bankruptcy, as that assignees of bankrupts, deriving titles under
“foreign ordinances, are permitted to sue here for debts due to the
“bankrupt's estates: but that is because the right to personal prop-
“erty must be governed by the laws of that country, where the own-
“er is domiciled. That was recognised in the case of Hunter V.
“Potts (q) The court there reconsidered the assignment of the bank-
“ rupt’s effects in another country, *although in fact made in invitum
“ as equivalent here to a voluntary conveyance by him. The case of
“ Ballantine v. Golding,(r) is very distinguishable from the present ;
“ for there the debt was contracted in Ireland where the commission
“ issued. But in the same page of the book from whence that was
“ quoted,(*) is to be found an opinion of Lord Talbot’s directly con-
“ trary to the conclusion we are desired to draw in this case ; for
“ there he held that, though the commission of bankruptcy issued
“here attached on the bankrupt’s effects in the plantations, yet his
“ certificate would not protect him from being sued there for a debt.
“ arising therein. The same rule then must prevail here.”
Lawrence, J. said, “If the defendants had made a voluntary assign-
“ ment of all their property to the use of their creditors, it is not pre-
“tended that that would have been a bar to the suit of the plaintiffs :
“ and yet the title of the assignee would have been as valid here as
“under the foreign commission ; which shows that the validity of the
“ title, under such an assignment, cannot make any difference in the
“ present argument. Then it rests solely on the question, whether
“ the law of Maryland can take away the right of a subject of this
“country to sue upon a contract made here, and which is binding by
“our laws This cannot be pretended, and therefore the plaintiffs
“ are entitled to judgment.”
The other Judges concurred, and judgment was given for the plain-
tiffs.
<-- - -
2. Of the Action of Assumpsit by a Bankrupt, relating to Property
which he holds in Trust.
Property in which a bankrupt has only a trust estate does not pass
to his assignees under the assignment. Therefore the cestui que trust
cannot bring any action respecting such property in their names, but
ought to bring it in the name of the bankrupt.
(*) Co. Bankrupt Laws, 500.
Char. X.] of Bankrupts and their Assignees.
373
Thus, in the case of Carpenter and others v. Marnell,(s) which was
an action of assumpsit on a note in these words : “I promise to pay
“ to Mr. Joseph Fowler, or order, the sum of 150l., being the remain-
“der of the consideration for the assignment of his interest *in the
“Layton business with me, as soon as I shall receive, or may receive
“ the money due, upon the completion of the said business, from T.
“ B. esquire, his executors, administrators, or assigns, or immediate-
“ly upon my receiving letters of administration of the estate and ef.
“fects of Lieutenant General Joseph Walton, otherwise Brome, de-
“ ceased, whichever event shall first take place ;” signed, “Richard
Marnell.” This note was indorsed by Fowler to one James Bagster,
for a valuable consideration, after which Fowler became bankrupt,
and the plaintiffs were chosen his assignees; in which capacity they
now sued for the benefit of Bagster. - -
Lord Alvanley, Ch. J. said, “We are all of opinion that this action
“ought to have been brought by Fowler. He was the person to whom
“ the promise to pay was made ; he by his indorsement directed the
“ contents of the note to be paid to Bagster ; and though this indorse-
“ment had no legal effect, yet it passed the beneficial interest in the
“ note to Bagster ; and Fowler by the indorsement became a mere
“trustee for him. The assignees never were in a situation to derive
“any benefit from this piece of paper. If, indeed, they had possessed
“ the most remote possibility of interest, or if they could state any
“ thing from which a benefit to the creditors would result, I should
“hold that the action might be maintained; but at the time when they
“brought this action it was impossible for them not to know that they
“ had no right to the note. They bring the action in the character of
“trustees ; but they are not trustees for Bagster ; they are only
“ trustees for Fowler’s creditors, and therefore cannot sustain this
“ action.” ... * e
So, in the case of Winch v. Keeley,() which was an action of as-
sumpsit for work and labour, &c. The defendant pleaded bankrupt-
cy in the plaintiff. The plaintiff replied, that before his bankruptcy
he was indebted to one Joseph Searle in 731. 128.9d., and being so in-
debted, he, on the 20th October, 1785, by his certain deed-poll, did
bargain, sell, assign, and transfer to the said Joseph Searle, the said
sum of 731. 12s. 9d, parcel of the money in the said declaration men-
tioned ; to hold the same to the said Joseph Searle, from thenceforth
to his own proper use, under a certain proviso, therein and hereinaf.
ter mentioned ; and did thereby constitute and appoint the said Jo-
seph Searle, his true and lawful attorney irrevocably, *and did give
and grant unto him, his executors and administrators, full power and
(s) 3 Ros. &
Pull. 40
%. 420
(t) 1 Term:
Rep. 619,
# 42 f
374
Of Bankrupts and their Assignees: [PART if:
(0) 1 Esp.
Rep. 140.
# 422
authority in his name, to the only proper use and behoof of the said
Joseph, to ask, demand, and sue for, the aforesaid sum of 73l. 12s.
9d., provided always, that if he, the said plaintiff, his executors, or
administrators, should well and truly pay, or cause to be paid, unto
the said Joseph, the said sum of 731. 12s. 9d., so due and owing to
him as aforesaid, within two calendar months after the date of these
presents, then the said deed-poll, and every article and clause there-
in contained, should be void ; as by the said deed-poll, relation
being thereunto had, would more fully appear. And the said plaintiff
further saith, that he did not, at any time within the space of two
calendar months after the date of the said deed, pay to the said Joseph,
the said sum of 731. 12s. 9d. so due and owing to him as aforesaid,
but that the same hath from thence hitherto remained due and unpaid
from the said plaintiff, to the said Joseph ; and that the original writ
in this suit, was sued out in the name of him, the said plaintiff, for
and on behalf of the said Joseph Searle, and for the purpose of enab-
ling the said Joseph Searle, to receive the said sum of 75l. 12s. 9d.
parcel of the said sums in the said declaration mentioned, according
to the form and effect of the said deed-poll, and not for the benefit,
use, or behoof, of the said plaintiff. To this replication there was a
general demurrer and joinder.
The court determined that the bankrupt might sue in his own
name for the benefit of the assignee of the debt in question, and gave
judgment for the plaintiff accordingly.
-**—
3. of Contracts made with an uncertificated Bankrupt.
An uncertificated bankrupt may maintain an action in his own
name, and for his own benefit, for work and labour, and materials
found and provided.
f
Thus, in the case of Silk V. Osborne,(v) which was an action of
assumpsit for work and labour, and materials found and provided.
The plaintiff proved the work done and the materials furnished by
him; but in the course of the evidence it appeared, that the plaintiff,
*at the time of the work and labour, and of the trial, was an uncertifi-
cated bankrupt. It was therefore contended, that he could not main-
tain the action, as all his effects belonged to his assignees. In an-
swer to this objection the counsel for the plaintiff relied on the case of
Chippendale v. Tomlinson,(*) as decisive in the present instance; it
* Co. Bankrupt Laws 431,
CHAP. X.] of Bankrupts and their Assignees.
375
being there expressly decided, that an uncertificated bankrupt could
maintain an action for work and labour.
It was answered, for the defendant, that that case only went the
length of deciding, that an uncertificated bankrupt could sue for and
recover any sum due to him for his personal labour ; but that the
present case was not confined to personal labour only, but embraced
a more extensive cause of action, namely, for materials found; that
these were a species of property, which passed under his assignment,
and in which he therefore had no property whatever: so that even ad-
mitting that the action was maintainable by the bankrupt for work
and labour, that for materials found, the action could not be support-
ed. -
Lord Kenyon, Ch. J. before whom the cause was tried, said,
“That the case cited was certainly good law, and in principle
“strongly applicable to the present: that the assignees could not
“ hire ºut the bankrupt, to make a profit of his labour for their bene-
“fit, but that for such demands, he should maintain an action in his
“ own name;” but his Lordship added, that he was further of opin-
ion, “ that where the materials furnished were necessary to the bank-
“rupt’s labour, that in such case the work and materials furnished
“ became blended together, and formed one joint cause of action, up-
“ on which the bankrupt might sue, and was entitled to recover : that
“ however the question might be between the bankrupt and his as-
“signees, as they might certainly take whatever personal property
“belonged to him, without any new assignment, that it did not lie in
“ the mouths of third persons to set up such a defence.”
So, in the case of Evans v. Brown,(w) it was held, that an uncerti-
ficated bankrupt might also sue for money lent after his bankruptcy.
*Lord Kenyon, Ch.J. in this case said, “The loan was subsequent
“ have been earned by the bankrupt after his bankruptcy; that if the
“ him for labour, that he was equally entitled to maintain one for the
“money so earned by his manual labour, which he might have lent to
“a third person, and which might be, perhaps, the present case; and
“ though when recovered, it would belong to the assignees, that in
“this case, and between the parties so circumstanced, it could not be
“set up in bar to this demand.” * -
But, in the case of Kitchen v. Bartsch,(a) the court determined,
that it is a good plea to an action on a promissory note, and or mon-
ey lent, that the plaintiff is an uncertificated bankrupt, and that his
assignees required the defendant to pay them the money claimed by
the plaintiff; and the plaintiff cannot reply that the causes of action
(w) 1 Esp.
Rep. 170.
See also La-
roche v.
Wakeman
º º Peake’s Cas.
“ to the bankruptcy, and for any thing that appeared, the money might }. i 140.
6 V.
tº- tº , º º Ward, 7
“law allowed him to maintain an action to recover what was due to Term Rep.
296.
Webb v.
Foa, ib. 391.
S. P.
* 423
(a) 7 East's
Rep. 53.
376
Of Bankrupts and their Assignees. - [PART II.
(y) 6 Term
Rep. 548. 1
Esp. Rep.
396. S. C.
%. 424
accrued after the plaintiff became bankrupt, and that the defendant'
treated with the plaintiff as a person capable of receiving credit, and
that the commissioners had made no new assignment of the notes and
money to the assignees : for all after acquired personal property passes
wnder the general assignment, . . - - -
4. Of a Bankrupt’s Allowance, &c.
A bankrupt may maintain an action of assumpsit against his assign-
ees for his allowance under the statute 5 Geo. II. c. 30. s. 7. But
such an action will not lie if the certificate be not allowed before pay-
ment of the dividends; the bankrupt’s only remedy, in such case, be-
ing by petition to the Lord Chancellor. gº
Thus, in the case of Groome v. Potts and others,(y) which was an
action of assumpsit by the plaintiff, a certificated bankrupt, against
the defendants, who were the executors of Weal, the assignee under
the plaintiff’s commission, to recover 25l. 6s. 7d. for money had and
received to the plaintiff’s use, for his allowance under the statute 5
Geo. II. c. 30. s. 7., his estate having paid 10s. in the pound to his
creditors. The commission issued in June, 1788, and Weal *was
chosen an assignee, together with another person who did not act. In
March, 1791, the commissioners declared a dividend of 12s. in the
pound, making the usual order on Neal, the assignee, to pay that div-
idend to each of the creditors. In July, 1791, a final dividend of
7 3-4d. in the pound was declared, and the same order was made by
the commissioners on the assignee. Weal accordingly paid the credi-
tors under these orders, which exhausted all the effects. In July,
1795, the plaintiff obtained his certificate. These facts having been
proved at the trial before Lord Kenyon, Ch. J. it was objected that the
plaintiff could not recover; for that at the times when the dividends
were declared, the bankrupt had not obtained his certificate, and was
not therefore entitled to any allowance under the statute ; and of this
opinion was his Lordship, and directed the plaintiff to be nonsuited.
And upon a motion for setting aside the nonsuit, the Court of King’s
Bench held, that the action could not be supported.
Ilord Kenyon, Ch. J. said, “If this defendant were answerable in
“this action, the assignees of a bankrupt would be in a very unfortu-
“nate situation. They are mere trustees, and act wholly under the
“ direction of the commissioners. When a dividend is declared, a
“right of action against the assignees accrues to every creditor, for
“his proportion. In this case two dividends were declared at a
“ time when the plaintiff had not obtained his certificate, and when
Chap. X.3 Of Bankrupts and their Assignees:
3??
“it was uncertain whether such certificate ever would be granted;
“the assignee paid the creditors under these orders of the commis-
“sioners; and the bankrupt, having four years afterwards obtained
“his certificate, now calls on the representatives of the assignees for
“his allowance under the statute: but it would be monstrous to sub-
“ject them to this demand. A bankrupt must put himself in a situa-
“tion to demand this allowance, by obtaining his certificate, before
“payment of the dividends by the assignees.”
5. Of Promises to pay a Debt barred by a Bankrupt's Certificate.
Though a bankrupt is discharged by his certificate from all debts
due at the time of the act of bankruptcy, yet he may voluntarily
make himself liable on a new promise: for all the debts of a *bank-
rupt are due in conscience, notwithstanding he has obtained his certi-
ficate.(z) -
Thus, in the case of Trueman v. Fenton,(a) which was an action
on a promissory note bearing date the 11th February, 1775, payable
to one Joseph Trueman, (the plaintiff’s brother,) three months after
date for 67l, and indorsed by him to the plaintiff. The declaration
also contained other counts for goods sold and delivered, money had
and received, and an account stated. The defendant pleaded his
bankruptcy. And, upon the trial, a special case was reserved for the
opinion of the court stating the answer of the plaintiff, in this action,
to a bill filed against him in the Exchequer by the present defendant
for a discovery of the consideration of the note, the substance of which
was as follows: “That on the 15th of December, 1774, the defendant
“Fenton purchased a quantity of linen of the plaintiff Trueman, and
“it being usual to abate 5l. per cent, to persons of the defendant’s trade,
“ the price after such abatement made, amounted to #26l. 188. That
“at the time of the sale it was agreed, that one half of the purchase
“money should be paid at the end of six weeks, and the other half at
“ the end of two months ; and in consideration thereof, the plain-
“tiff, Trueman, drew two notes of the defendant for 631.9s, each, paya-
“ble to his own order, at six weeks and two months respectively.
“That the defendant accepted the notes, and thereupon the plaintiff
“gave him a discharge for the sum. He then denied that he proved
“ or claimed any debt or sum of money under the commission : but
“ set forth, that he acquainted the defendant he was surprised at his
“ungenerous behaviour in purchasing so large a quantity of linen of
“ him at the eve of his bankruptcy, and informed him he had paid
# 435
(*) ſide 3
Term: Reft:
(a) Cowp. 544. See also Alsop and another v. Brown, Doug, fg1. But a
bankrupt cannot be held to special bail on such a promise, Baily v. Dillorſ, 3.
Burr. 736.
W of... [. [48]
765:
of Bankrupts and their Assignees. -> [PART Ii.
* 426
“ away the above two notes: upon which the defendant pressed him
“ to take up the notes, and proposed to give him a security for part of
“the debt. That afterwards on the 11th of February, 1775, the de-
“fendant called upon the plaintiff, and voluntarily proposed to se-
“cure to him the payment of 671 in satisfaction of his debt, if he
“would take up the two notes, and cancel or deliver them up to the
“defendant. That the plaintiff agreed to accept this proposal with
“the approbation of his attorney, and desired the note to be made
“payable to his brother Joseph Trueman, or order, three months af.
“ter date. That he took up the two acceptances, and delivered them
“to the defendant to be cancelled, and accepted the above note for
$6 67l. in satisfaction and discharge thereof. That a commission of
“bankruptcy issued against the defendant on the 19th of January
“ 1775, and that the bankrupt obtained his certificate on the 17th of
“..April following.” t
The Court of King's Bench decided that the plaintiff was entitled
to recover. And Lord Mansfield, Ch.J. said, “The general question
“is, whether a bankrupt after a commission of bankruptcy sued out,
“may not, in consideration of a debt due before the bankruptcy, and
“for which the creditor agrees to accept no dividend or benefit under
“the commission, make such creditor a satisfaction in part, or for
“the whole of his debt, by a new undertaking and agreement? A
“bankrupt may undoubtedly contract new debts; therefore, if there
“is an objection to his reviving an old debt by a new promise, it must
“ be founded on the ground of its being nudum pactum. As to that, all
“the debts of a bankrupt are due in conscience, notwithstanding he
“has obtained his certificate; and there is no honest man who does
“not discharge them, if he afterwards has it in his power to do so.
“Though all legal remedy may be gone, the debts are clearly not ex-
“tinguished in conscience. How far have the courts of Equity gone
“upon these principles? Where a man devises his estate for payment
“ of his debts, a eourt of equity says, (and a court of law in a case
“properly before them would say the same.) all debts, barred by the
“statute of limitations, shall come in and share the benefit of the
“ devise ; because they are due in conscience: therefore, though bar-
“red by law, they shall be held to be revived, and charged by the
“ bequest. What was said in the argument relative to the reviving a
“promise atkaw, so as to take it out of the statute of limitations is very
“true, the slightest acknowledgment has been held sufficient; as say-
“ing: ‘prove your debt and I will pay you ; I am ready to account
“‘but nothing is due to you :’ and much slighter acknowledgments
* than these will take a debt out of the statute. So in the case of a
“man who, after he comes of age, promises to pay for goods or other
“ things, which, during his minority, one cannot say he has contracted
“for, because the law disables him from making any such contract;
GHAP. X.] €f bankrupts and their assignees.
#379
A
“but which he has *been fairly and honestly supplied with, and which
“were not merely to feed his extravagance, but reasonable for him
“(under his circumstances) to have ; such promise shall be binding
“upon him, and make his former undertaking good. Let us see then
“what the transaction is in the present case. The bankrupt appears
“to me to have defrauded the plaintiff by drawing him in on the eve
“of a bankruptcy, to sell him such a quantity of goods on credit. It
“ was grossly dishonest in him to contract such a debt, at a time when
“he must have known of his own insolvency, and which it is clear
“ the plaintiff had not the smallest suspicion of, or he would not
“have given credit, and a day of payment in futuro. On the other
“hand, what is the conduct of the plaintiff; He relinquishes all hope
“ or chance of benefit from a dividend under the commission, by for-
66 bearing to prove his debt, gives up the securities he had received
“from the bankrupt, and accepts of a note, amou nting to little more
“ than half the real debt, in full satisfaction of his whole demand. Is
“ that against conscience P Is it not on the contrary a fair considera-
“tion for the note in question ? He might foresee prospects from the
“ way of life the bankrupt was in, which might enable him to recover
“ this part of his debt, and he takes his chance; for till then he could
“get nothing by the mere imprisonment of his person. He uses no
“threats, no menace, no oppression, no undue influence, but the pro-
“posal first moves from, and is the bankrupt's own voluntary request.
“The single question then is, whether it is possible for the bankrupt
“in part, or for the whole, to revive the whole debt? As to that Mr.
“Justice ºffston has suggested to me the authority of Bailey v. Dill-
# on,(b) where the court would not hold to special bail, but thought
tº reviving the old debt was a good consideration.” -- -
Where a bankrupt promises to pay a debt due before his bankrupt-
gy, the plaintiff may declare generally on the original consideration.
Thus, in the case of Williams v. Dyde and others,(c) which was an
action of assumpsit for goods sold and delivered, the defendant pleaded
his discharge under a commission of bankruptcy. -
The plaintiff’s counsel stated, that the defendant had promised to
pay the debt after he was discharged by his certificate. Upon which
the counsel for the defendant, objected that this promise could not be
given in evidence under the count for goods sold and delivered. To
avail himself of this promise, the plaintiff should have declared special-
ly, that the defendant being indebted, and having been discharged un-
der the commission, promised to pay the debt from which he had been
so discharged. &
But Lord Kenyon, Ch. J. said, “I think this declaration is sufficient
t; as it stands. In cases where the statute of limitations has been
}
# 427
(b) Ante,423.
In , 33.
• ‘. :
(c) Peake's
Cas.
68.
N. P.
# 428
$89
of bankrupts and their assignees, [Parr II,
(d) 2 H, Bl,
#16,
# 429
(e) 1 Esp,
Rep. 282.
“ pleaded, the replication that he did promise within six years has al-
“ways been held sufficient; for the new promise reviyes the old
* debt.” . . . . . . . - -
Upon a promise by a bankrupt to pay a debt, due prior to his bank-
ruptcy, when he is able, the plaintiffin an action on such promise must
prove generally the ability of the bankrupt to pay at the time of the
commencement of the action. - *
Thus, in the case of Besford y. Saunders,(d) which was an action
of assumpsit for money paid, lent, had and received, &c. To which
the defendant pleaded his bankruptcy. At the trial the plaintiff prov-
ed two several applications to the defendant, who admitted the debt
after he had obtained his certificate, and said, “the plaintiff should be
no loser, but that he would pay when he was able.”
It was contended, that this was not an absolute promise, but that
the plaintiff ought to show the defendant’s ability to pay at the time
of the action brought. Lord Loughborough, Ch. J. before whom the
cause was tried, overruled this objection, and held, that the promise
was absolute, and the benefit of the certificate waived, as to this
debt. In consequence of which a verdict was found for the plain-
tiff.
But upon a motion for a new trial Gould, J. and Heath, J. were of
opinion, that it was a conditional promise, and that the plaintiff ought
to have shown that the defendant was able to pay. -
Lord Loughborough, however, retained his former opinion, that
the promise was not conditional, and that an inquiry into *the circum-
stances of the defendant, could not be a point in considering whether
there were a debt or not.(*)
Where a bankrupt promises to pay a debt due prior to his bank-
ruptcy, in consideration of the creditor’s not proving his debt under
the commission, if the creditor, to whom such promise is made,oppo-
ses the bankrupt in obtaining his certificate, such opposition is a wai-
yer of the promise to pay, &c.
Thus, in the case of Colls v. Lovell,(e) which was an action of as-
sumpsit, in which the plaintiff declared, “that the defendant having
“ become a bankrupt and being then indebted to the plaintiff in consid-
feration that the plaintiff would not prove his debt under the commis-
“ion, he undertook to pay him eighteen shillings in the pound, on
tº his debt, and to bring forward another person to secure him the
ºf payment of that sum;” it then averred, that the defendant had not
ź...º.º.º. tº • * ***, *
(*) Sed vide Cole v. Sawby, ante tit. Infants, 164, contra.
§HAP, X.] Of bankrupts and their assignees.
381.
paid, nor brought forward any person to secure to him that sum, by
reason whereof the defendant became liable, &c.
Upon the trial, the plaintiff proved, by a witness, a treaty for an
agreement in substance as stated in the declaration, but the witness,
in his cross-examination, admitted that the plaintiff had petitioned
the Great Seal against the allowance of the defendant’s certificate.
The counsel for the defendant then contended, that this was a
waiver of the agreement, and deprived the plaintiff of all claim to any
benefit to be derived under it. -
Lord Kenyon, Ch. J. held that it did so ; his Lordship observed,
* That the agreement upon which the present action was founded,
“must be supposed to have been entered into with a view to discharge
“ the defendant from his debts, by the plaintiff’s co-operating in the
“ discharge, which the defendant would obtain by means of his certifi-
“cate. That the plaintiff, by opposing the defendant’s certificate, had
“ been guilty of mala fides, as defeating the object of the agreement
“ by an act totally inconsistent with it. That he should therefore
“ be held to have abandoned it, and not now be allowed to resort to
“it, or to maintain an action which had the agreement for its founda-
“tion.
*An agreement made by a bankrupt, or any one on his behalf, to
pay a sum of money to his creditor if he will sign his certificate is
void.(f)
So,(g) a security given to a creditor of a bankrupt, in order to in-
duce him to withdraw a petition which he had preferred to the Chan-
cellor against the allowance of the certificate, is also void by the stat-
ute 5 Geo, II. c. 30. s. 11.
-º-
6. Of the assignment of a bankrupt’s estate to his assignees; and of
their right to receive and discharge debts, and prosecute ac-
tions, &c.
By the statutes 13 Eliz. c. 7. s. 11. and 1 Jac. I. c. 15. the com-
missioners may assign all money, goods, chattels, merchandizes,
wares, and debts due to the bankrupt from any person, and in what
manner soever, and the assignment vests the property, as well pres-
ent as future in the assignee, and the bankrupt shall not afterwards
recover, release, or discharge the same, nor shall it be attached as a
debt of the bankrupts.(h)
But until assignment, the property remains in the bankrupt.
Laws
# 430
(f) ra.
II. c.
stat. 5 Geo.
30. s.
11. Jones v,
3. Smith v.
Bromley, ib.
696. m. 3.
(g) Sumner
W. Brady and
others, 1 H.
Bl. 647.
(h) Wide Ce.
Bankrupt
, chap.
s. 10.
382.
(ºf bankrupts and their assignees. [PART H.
() 1 Salk.
108. See also
$tr. 981. S.P.
(k) 1 Esp.
Rep. 114,
# 431
(l) See also
Co. Bank-
rupt Laws,
(n) Ibid. c.
14. s. 2.
$º Wide 3.
erm Rep.
433. 779.
Thus, in the case of Cary v. Crisp,(i) which was an action of inde-
bitatus assumpsit; the defendant pleaded that the plaintiff became
bankrupt, and that a commission was taken out, and therefore all his
goods, &c. belonged to the commissioners, &c. The plaintiff demur-
red, and had judgment; for till an assignment, the property of the
goods is not transferred out of the bankrupt.
One of several assignees of a bankrupt may receive the monies
belonging to the estate, and give a valid discharge for the same.
Thus, in the case of Smith and others v. Jameson and others, (k)
which was an action of assumpsit for money had and received. It
*appeared that the defendants had been partners in trade: while they
were in partnership one of them being assignee to a bankrupt estate
had used part of the money belonging to that estate in the partnership
trade, without the knowledge or acquiescence of the other assignees,
who were the plaintiffs in the present action, but with the knowledge
of his partner that the money was part of the bankrupt estate. In
December, 1792, the partnership was dissolved, and the partner, who
was the assignee, continued in the business, and received from the
other money and effects sufficient to discharge all debts due by the
partnership, including the money of the bankrupt estate, of which they
had had the use. .
It then became a question, whether this was a repayment to the
partner who was assignee, and so should discharge the other.
Lord Kenyon, Ch. J., before whom the cause was tried, was of
opinion, that one assignee of a bankrupt estate might receive the mon-
ies belonging to the estate, and give a legal and valid discharge for it.
By the statute 5 Geo. II. c. 30. s. 38. the assignees are prohibited
from commencing any suit in equity, without the consent of the ma-
jor part in value of the creditors of the bankrupt, who shall be present
at a meeting called for that purpose.(l) t
So, they cannot submit matters to arbitration without the like con-
sent.(m)
But they may bring actions at luw without first calling a meeting
of the creditors.(n)
If the same persons are assignees of two partners under a separate
commission against each, they cannot, in one action, sue for a debt
due to the two, and also for debts due to each individually.(0)
Where the assignees bring an action upon a contract made by the
bankrupt before his bankruptcy, they must sue as assignees, and state.
&#AF. X.] of bankrupts and their assignees.
333
themselves as such in the declaration ; but if they sue upon a coh-
tract made after the bankruptcy, they need not sue in their repre-
sentative character as assignees, but in their own right.
*Thus, in the case of Evans and others v. Mann,(p) where it ap-
# 433
peared that the bankrupt some years after his bankruptcy, and be- ( § Cowp.
fore he had obtained a certificate, continued to carry on his trade as
a lighterman, in buying and selling lighters; and, amongst others,
sold a lighter to the defendant, who paid him 30l. part of the pur-
chase money, at the time of the sale. Afterwards the plaintiffs, hear-
ing of the sale, applied to the defendant, and insisted upon having the
lighter delivered up to them, or the purchase money paid ; but after-
wards it was agreed between them, that the defendant should keep
the lighter, and pay the residue of the purchase money to the plain-
tiffs; and for this the present action was brought. At the trial, the
defendant’s counsel objected that the action could not be maintain-
ed, because the plaintiffs did not sue as assignees, nor state themselves
as such in the declaration.
But Lord Mansfield overruled the objection. And afterwards, up-
on a rule for a new trial, his lordship said, “The lighter was the prop-
“erty of the assignees, and, consequently, the sale by the bankrupt
“ was a contract as their agent by operation of law, and on their ac-
“ count. Therefore it was not necessary that they should state them-
“selves to be assignees in the declaration: though in respect of the
“ evidence in support of the action, it might be incumbent on them to
“ prove the trading, bankruptcy, and so forth ; in short, the whole of
“ their case.” tº -
Willes, J. also thought, that the sale by the bankrupt could be cons
sidered in no other light than as agent or servant to the assignees.
.Ashhurst, J. said, “That in the case of an action at the suit of an
“executor, it is clear, if the action be brought on a contract made by
“ himself, respecting the goods of the testator, he need not name him-
“self executor. Therefore I should doubt whether, in this case, it
“would be necessary for the plaintiffs to go into evidence of the trad-
“ing, bankruptcy, &c. For here there was an actual treaty between
“ the plaintiffs and the defendant, relative to the matter in litigation,
“ and not merely a promise by implication of law. And if so the ac-
“tion is founded on an actual contract between the plaintiffs and the
“ defendant, consequently the plaintiffs “are entitled to recover swo
'ss jure.” In which idea the court concurred : and refused the rule
for a new trial.
%. 433
.384
Of bankrupts and their assignees. [PART II.
q) 1 Term
§. 463.
See also
Waugh v.
aflusten, 3
Term Rep.
437.
* 434
If a bankrupt, before his bankruptcy, commence an action at law,
such action does not abate, but the assignees should proceed in his
name until after judgment, either interlocutory or final. -
Thus, in the case of Kretchman v. Beyer,(q) in error, where the de-
fendant, in error, having recovered a judgment against the plaintiff,
in error, in the Court of Common Pleas, the latter brought a writ of
error, which was duly issued, allowed, and served. Afterwards the
defendant in error became a bankrupt, and his assignees sued out a
scire facias quare executionem non, reciting the recovery below, and
the writ of error. * w
Buller, J. “The scire facias is wrong either way. First, as a scire
“facias quare executionem non, because it appears from the recital,
“that a writ of error is depending; and, Second, as a scire facias to
“compel an assignment of errors, it is likewise wrong, even suppos-
“ing it did not take notice of the writ of error depending; because
“there has been a proceeding since the judgment. And the rule is,
“that the assignees cannot make themselves parties to the record in
“any intermediate stage of the proceeding, but it must be immedi-
“ately after judgment, though an interlocutory judgment is sufficient
“for that purpose. Here the assignees should have gone on with the
“writ of error in the bankrupt’s name till judgment—Therefore the
“scire facias must be quashed.” -
-º-
7. Of Payments, &c. made to, or by a Bánkrupt, when protected.
The legal effect of an act of bankruptcy committed by a trader, is
to put it in the power of the commissioners to divest the property of
the bankrupt by relation, which may go back to a great length of
time, and avoid all acts done by the bankrupt without regard to the
fairness or fraud of them. So that a sale of goods by the bankrupt,
after the act of bankruptcy committed, is a “sale of the assignees’ pro-
perty, for which they may maintain trover or assumpsit.(?) And it
is the same as to the payment of money; but the rigoyr of this rule
has been relaxed by the legislature. For by the statute 1 Jac. I. c.
15. s. 14, it is enacted, “That no debtor of the bankrupt be hereby
“endangered for the payment of his or their debt, truly and bonafide
“to any such bankrupt, before such time as he shall understand or
“know that he is become a bankrupt.” -
(*) Väde Co. Bankrupt Laws, 571.
CHAP. X.] Of bankrupts and their assignees.
385
And by the statute 19 Geo. II. c. 32. after reciting “Whereas ma.
“ny persons within the description of, and liable to the statutes con-
“cerning bankrupts, frequently commit secret acts of bankruptcy un-
“known to their creditors and other persons with whom, in the course
“ of trade they have dealings and transactions; and after the com-
“mitting thereof, continue to appear publicly, and carry on their
“trade and dealings, by buying and selling of goods and merchan-
“ dizes, drawing, accepting, and negotiating bills of exchange, and pay-
“ing and receiving money on account thereof, in the usual way of
“trade, and in the same open and public manner, as if they were solº
“vent persons, and had not become bankrupts: and whereas the per-
“mitting such secret acts of bankruptcy to avoid and defeat payment,
“really and bona fide made in the cases, and under the circumstances
“above mentioned, where the persons receiving the same had not no-
“tice of, or were privy to such persons having committed any act of
“bankruptcy, will be a great discouragement to trade and commerce,
“ and a prejudice to credit in general : it is enacted, that no person
“who is, or shall be really and bona fide, a creditor of any bankrupt,
“for or in respect of goods really and bona fide sold to such bankrupt,
“ or for or in respect of any bill or bills of exchange really and bona
“fide drawn, negotiated, or accepted by such bankrupt, in the usual
“ or ordinary course of trade and dealing, shall be liable to refund or
“repay to the assignee or assignees of such bankrupt’s estate, any
“money, which before the suing forth of such commission, was really
“ and bona fide, and in the usual and ordinary course of trade and
“dealing received by such person of any such bankrupt, before such
“ time as the person receiving the same shall know, understand, or
“have notice, that he is become a bankrupt, or that he is in insolvent
“circumstances.”
*And by the statute 46 Geo. III. c. 125, reciting, “whereas great
“inconveniences and injustice have been occasioned by reason of
“ the fair and honest dealings and transactions of and with traders
“being defeated by secret acts of bankruptcy, in cases not already
“provided for, or not sufficiently provided for by law: for remedy
“thereof be it enacted, that in all cases of commissions of bankrupt
“hereafter to be issued, all conveyances, by all payments by and
“to, and all contracts and other dealings and transactions, by and
“with any bankrupt bona fide made or entered into, more than two
“calendar months before the date of such commission, shall, notwith-
“standing any prior act of bankruptcy, committed by such bankrupt,
“be good and effectual, to all intents and purposes whatsoever, in
“like manner as if no such prior act of bankruptcy had been commit-
“ted, provided the person or persons so dealing with such bankrupt
“had not at the time of such conveyance, payment, contract, dealing,
“ or transaction, any notice of any prior act of bankruptcy by such
VoI. I. [49] +
# 435.
385
Of Bankrupts and their Assignees. [PART II,
#436
“bankrupt committed, or that he was insolvent, or had stopped pay-
“ ment.” *
By section the second, it is further enacted, “that in all cases of
* commissions of bankrupt hereafter to be issued, all and every per-
“son and persons with whom the bankrupt shall have really and bona
“fide contracted any debt or debts before the date and suing forth of
“such commission, which, if contracted before any act of bankruptcy
“ committed, might have been proved under such commission, shall,
“ notwithstanding any prior act of bankruptcy may have been com-
“mitted by the bankrupt, be admitted to prove such debt or debts,
“ and to stand and be a creditor under such commission, to all intents
“ and purposes whatever, in like manner as if no such prior act of
“bankruptcy had been committed by such bankrupt: provided such
“creditor or creditors had not, at the time of such debt or debts be-
“ing contracted, any notice of any prior act of bankruptcy by such
“bankrupt committed.” -
By section the third, it is also enacted, “ that in all cases in which,
“ under commissions of bankrupt hereafter to be issued, it shall ap-
“pear that there has been mutual credit given by the bankrupt and
“any other person, or mutual debts between the bankrupt and any
“other person, one debt or demand may be set off against another,
“notwithstanding any prior act of bankruptcy committed by such
“bankrupt before the credit was given to, or the debt was contracted
“ by such bankrupt, in like manner as if no such prior act of bank-
“ruptcy had been committed, provided such credit was given to the
“bankrupt *two calendar months before the date and suing forth of
“such commission, and provided the person claiming the benefit of
“such set-off had not, at the time of giving such credit, any notice of
“any prior act of bankruptcy by such bankrupt committed, or that
“he was insolvent, or had stopped payment: provided always, that
“ the issuing of a commission of bankruptcy against such bankrupt,
* although such commission shall afterwards be superseded, or the
“striking of a docket for the purpose of issuing a commission against
“ such bankrupt, whether such commission shall have actually issued
“ thereupon or not, shall be deemed notice of a prior act of bankrupt-
“cy for the purposes of this act, if it shall appear that an act of bank-
“ruptcy had been actually committed at the time of issuing such com-
“mission, or striking such docket.”
By the fourth section it is enacted, “that all persons against whom
“any commission of bankrupt shall hereafter issue, and who shall be
“ duly found bankrupt under the same, shall, upon obtaining his, her,
“or their certificate, be discharged of and from all debts by this act
“made proveable under such commission, and shall have the benefit
“of the several statutes now in force against bankrupts, in like man-
Ghar. X.] of Bankrupts and their Assignees.
ssz
“ner to all intents and purposes as if such secret acts of bankruptcy
“had not been committed prior to the contracting of such debts.”
And by the last section of the act it is enacted, “ that no commis-
“sion of bankrupt that shall be hereafter issued, shall be avoided or
“defeated by reason of any act of bankruptcy having been committed
“by the person, or any of the persons against whom such commission
“shall have issued, prior to the contracting the debt of the creditor,
“ or any of the creditors, upon whose petition such commission shall
“have issued, if such petitioning creditor had not any notice of such
“act of bankruptcy at the time when the debt to him was contracted,
“but that such commission of bankrupt, and all the proceedings under
“the same, shall be valid and effectual, to all intents and purposes,
“ notwithstanding that such prior act or acts of bankruptcy shall have
“been committed by such bankrupt.” g
Upon this latter statute no case has arisen in any of our courts ;
but on the two former acts the following determinations have been
made :
*In the case of Wilkins and another, assignees of Cann, a bank-
rupt, v. Casey,(r) which was an action of assumpsit, as well for mo-
ney had and received by the defendant, to and for the use of the plain-
tiffs as assignees of Thomas Cann, after he became bankrupt, as also
for the use of Cann, before he became a bankrupt. On the trial of the
cause a verdict was taken for the defendant, subject to the opinion of
the Court of King’s Bench, on the following case : “Cann was a
“ clothier, and the defendant his factor in London ; and their course
“of trade was this ; Cann consigned goods to the defendant, which
“were sold by him, and he received 5 per cent. commission, taking on
“himself the risk of the debts. Goods to the amount of 2221. 18s. had,
“previous to the act of bankruptcy, been so consigned to the defen-
“dant, and sold by him ; and he was indebted to Cann to that amount.
“On the 21st of February, 1794, Cann, committed an act of bank-
“ruptcy, on which the commission issued, by leaving his dwelling-
“house at Rodborough, in the county of Gloucester, to which he nev-
“er returned. On the 23d of February he arrived in London, and
“on the same day called on the defendant, at his own house in the
“Old Change, and after informing him that he wanted to pay for a
“ quantity of wool which he had bargained for in the country, re-
“quested the defendant to furnish him with bills for the amount of
“ the goods so sold by him, as factor, and for which the defendant
“ then stood indebted. The defendant thereupon accepted bills of
“exchange, which Cann then drew, payable to his own order, at two,
“three, four, five, and six months after date, and indorsed in blank
# 43?
(r) 7 Term
Rep. 711.
388
& Gf Bankrupts and their flasignees. [PART II.
* 488
(s) 2 Term
Rep. 648.
... by him, to the amount of 208l. 12s. and also delivered to him one
“other bill, dated 22d of February, 1794, drawn by the defendant,
“ and payable to one Terry, for 14.6s., making together the sum of
“ 2221. 12s. the whole balance due to Cann from the defendant, but
“for which no receipt or acknowledgment was given. These bills were
“discharged by the defendant as they became due.”
The court were of opinion that this payment was protected by the
statute, 1 Jac. I. c. 15. s. 14.
Lord Kenyon, Ch. J. said, “This is as clear a case as can be stated.
“If we had an election given us for the first time to put either a rig-
“id or a liberal construction on the statute of James, I should not
“hesitate to say that we ought to put a liberal construction upon it ;
“for the object of it was to protect certain payments *made to a bank-
“rupt, that common sense and justice required should be deemed va-
“lid payments, and in this instance to correct the rigour of the bank-
“rupt laws. Now if the defendant had given other goods in exchange
“for these at the time, that would have been a payment to all intents
“ and purposes, though not made in monies numbered ; and it has al-
“ways been holden that giving a bill of exchange is deemed a pay-
“ment in satisfaction, provided the bill be paid when due.”
Upon the statute 19 Geo. II. c. 32. it has been determined that
where the holder of a bill of exchange gives time to the acceptor, on a
promise to pay interest ; and, after a secret act of bankruptcy of the
latter, the holder, without knowing of the bankruptcy, receives the
amount of the bill, with interest, from the bankrupt, such payment is
not protected by that statute. -
Thus, in the case of Vernon and others, assignees of Tyler, a bank-
rupt, v. Hall,(s) which was an action brought by the assignees to re-
cover 570i. paid by the bankrupt to the defendant, after the bank-
ruptcy. The act of bankruptcy was proved on the 2d of May, 1785;
but it was unknown to the defendant, as well as to several of her
other creditors at that time. Two months prior to the bankruptcy,
the defendant sold an estate to one Uterson, who, in order to pay for
it, had drawn a bill of exchange to that amount on the bankrupt,
in favour of the defendant, payable the 7th of February, in the same
year. When it became due the defendant applied for it, and was
toid that it was not convenient at that time to pay ; but if he would.
permit it to remain in the bankrupt’s hands, she would allow him in-
terest on it. To this he assented, and on the 22d of May, 1795, ap-
plied for payment, which he received without knowing of the bank-
ruptcy. -
It was contended that the payment of the bill was made in the or-
dinary course of business, and was therefore protected by the statute
19 Geo. II. c. 32.
CHAP. X.] Of Bankrupts and their flasignees.
3.89
But the court were clearly of opinion that it was not such a payment,
in the ordinary course of business, as came within the provision of
that statute ; for they considered the transaction as a loan of money
at interest, which became a debt.
*So, in the case of Bradley and another, assignees of T. Bradley,
a bankrupt, v. Clark,(t) which was also an action of assumpsit for mo-
ney had and received. The facts were these : T. Bradley being in-
debted to the defendant, as a common carrier, in the sum of 44l, for
carriage of goods belonging to T. Bradley, and in which he dealt in
the way of his trade, the defendant on the 24th of November, 1791,
caused T. Bradley to be arrested for such debt, who thereupon paid
the same to the defendant, the defendant not then knowing that 7.
Bradley had committed any act of bankruptcy, or was in insolvent
circumstances. An act of bankruptcy had, however been committed
by T. Bradley, on the 17th of November, 1791, and a commission of
bankruptcy was thereupon afterwards issued against him on the 23d
of December following: and it did not appear that he had carried on
any trade after he had committed the said act of bankruptcy.
The court determined that this case did not fall within the statute
19 Geo. II. c. 32. and therefore judgment was given for the plain-
tiffs.
Lord Kenyon, Ch. J. said, “In this case we are called upon to put
“a construction on the statute 19 Geo. II. and as it is a remedial law,
“I think we should give effect to it as far as the words of the act
“warrant. But it is clear that the legislature did not mean to extend
“this remedy to all cases: had such been their intention, they would
“have said so in express terms; instead of which they have chosen to
“use particular words, and to confine the remedy to particular cases.
“The statute only extends to two cases; of which this is neither.
“Whether or not it would have been wise to have extended this pro-
“vision to all cases, I will not presume to determine, though I can-
“not refrain from observing that had that been the case, all the prop-
“erty of a bankrupt might be conveyed to one creditor, to the exclu-
“sion of the rest. In determining on this act of parliament it is
“sufficient to say that this case is not within the words, nor (as far
“as I can recollect) the intention of the act: though had it clearly
“ and indisputably appeared to have come within the meaning of the
“act, I should have been inclined to have extended it to this case.”
Buller, J. said, “On this statute the case of Vernon v. Hall,(w) is
“ decisive. There the bill of exchange had been drawn on the 4
“*bankrupt, who, when it became due, requested time of the holder,
“(the defendant,) saying, it was not convenient to her to pay it at
$ 439
(t) 5 Term
Rep. 197.
(u) Ante, p.
38.
# 440
390
6f Bankrupts and their Assignees, [PART II,
(w) 2 H. Bl.
334,
%. 441
§ •Ante, p.
& Ante, p.
439.
“that time, but promising to pay interest for it, if he would permit it
* to remain in her hands ; and after, and without knowing of the
“bankruptcy, the defendant received the amount of it : but though
* the debt continued due under the bill, the court said it was not
• a case within the statute ; for when the defendant agreed to let the
“money remain at interest, it became a loan of so much to the bank-
“rupt. Now that is a much stronger case than the present; be-
“cause there the debt originally arose on a bill of exchange in the
“course of trade. With regard to the construction of statutes, ac-
“cording to the intention of the legislature, we must remember that
“there is an essential difference between the expounding of mod-
“ern and ancient acts of parliament. In early times the legisla-
“ture used (and I believe it was a wise course to take) to pass laws
“ in general and in few terms ; they were left to the courts of law to
“be construed so as to reach all the cases within the mischief to be
“remedied. But in modern times great care has been taken to men-
“tion the particular cases in the contemplation of the legislature, and
“ therefore the courts are not permitted to take the same liberty in
“construing them as they did in expounding the ancient statutes.”
So, in the case of Pinkerton and others, assignees of Gale a bank-
rupt, v. Marshall,(u) which was also an action of assumpsit, for mon-
ey had and received to the use of the plaintiffs, as assignees of Gale;
and the circumstances were as follow : At the sittings after Hilary
term, 1793, Marshall, who was a ship owner, recovered a verdict a-
gainst Gale, who was a merchant, in an action on a charter party, for
428l. 118. 11d. Early in the month of April, in the same year, Gale
committed an act of bankruptcy ; afterwards, Marshall having had no
notice of the bankruptcy, was requested by Gale to give him time
for the payment of the sum recovered by the verdict, instead of im-
mediately entering up judgment, and taking out execution. To this
Marshall consented, on receiving a bill of exchange, drawn by Gale,
in his favour, on one Founghusband, who was a debtor of Gale’s for
that sum, at four months after date, and on payment of the costs to
the attorney. When the bill became due, it was paid by Younghus-
band, “by another bill drawn on Sir James Esdaile and Co., the a-
mount of which, together with the costs, this action was brought to
reCOWer.
The court held, that this payment was not protected by the statute
19 Geo. II. c. 32. They said;the authorities of Vernon v. Hall,(w) and
Bradly v. Clark,(a) were decisive of the point in dispute, particularly
the former, where, as well as in this instance, a personal credit was
given to the bankrupt; that if the payment by the bankrupt, in those
cases, could not be supported, neither could it be in the present.
GHAF. X.] of Bankrupts and their Assignees.
391
So,(y) where a trader, subsequent to an act of bankruptcy, being
arrested and detained in prison at the suit of several creditors, sent
for all his creditors but one, and paid their debts in full: but no other
circumstance occurred from which it could be presumed that they
knew of his bankruptcy, or insolvency; it was determined that such
payments were not protected by the 19 Geo. II. c. 32.
But it has been decided that payment of a bill of exchange to
a creditor under an arrest, after a secret act of bankruptcy, is pro-
tected by the above statute.
Thus, in the case of Coa, and others, assignees of Emmott, a bank-
rupt, v. Morgan,(z) which was an action of assumpsit for money had
and received to the use of the plaintiffs. The commission was dated
the 14th of August, 1799. The act of bankruptcy was the lying in
prison hereafter stated. Emmott was arrested at the suit of one
Dizon on the 31st of October, 1798, and committed to the Fleet on
that arrest on the 6th of November. He remained in the Fleet, on
that account, till the 16th of February, 1799, when he was discharged.
Emmott had a partner named Bray, who was abroad before he went
to the Fleet; the partnership was indebted to Morgan, the defendant,
in the sum of 44l. 18s. 9d, on a bill of exchange accepted by Em-
anott and Bray, on the partnership account. The bill not being paid,
Morgan proceeded by original against Emmott and Bray, for the
purpose of outlawing Bray, on the 14th of November, 1798, and em-
ployed a sheriff's officer to arrest Emmott who could not find him.
An alias was taken out, and the sheriff’s officer went to his house,
and was told he was in the country. He afterwards met with him
at his house, and arrested him at the suit of Morgan, on 23d of Feb-
ruary, 1799. He told the officer he was just returned from Ports-
mouth. Emmott immediately paid Morgan’s attorney the 44l. 13s.
and 9d. and 11, 58. for interest which was paid over to Morgan.
Neither Morgan, nor any one concerned for him personally knew
that Emmott had been in the Fleet, had committed an act of bank-
ruptcy, or that he was in insolvent circumstances.
The Judges,(a) not being unanimous, delivered their opinions ser-
iatim as follow :
Chambre, J. “The only question in this case is, whether the pay-
“ment of the money for which the action is brought, and which was
“made by the bankrupt to the defendant after an act of bankruptcy,
“ and under the circumstances stated in the case, is a payment pro-
“tected by the stat. 19 Geo. II. c. 32. s. 1. or not? I am of opinion,
“ that the payment is not protected by the statute. I should have
“given this opinion with much more satisfaction to myself if it had
“been fortified by those of the rest of the court; but I stand single
(y) Southey
and another
v. Butler, 3
Bos. & Pull.
237.
(2) 2 Bos. &
Pull. 398.
See also
olmes v.
Wennington;
2 Bos. and
Pull. 399. m.
a. S. P. Sed
vide 7 East's
Rep. 160.
# 442
(a) Heath,
Rooke, and
Chambre.
Lord Eldon,
was not in
court during
the argu-
ment and
therefore did
not deliver
any opinion
upon the
CàSe,
392
of Bankrupts and their Assignees. [PART II.
% 443
“in my opinion here, both my brothers thinking differently from me
“upon the subject, and I am also opposed by the authority of a deter-
“mination of the Court of Exchequer, which (though there are materi-
“ al circumstances in the present case which did not occur in that)
“ is a case in point, as to the general question of a payment under
“an arrest being protected by the statute. That decision too is
“strengthened by, and, in a considerable degree, founded upon a deter-
“mination of Lord Loughborough at Wisi Prius, which I learn from
“my brother Heath, was confirmed in this court. I find from some
“notes I have procured of what was said by the court at Nisi Prius,
“ that a writ, in that case, had been sued out, but whether the party
“ was arrested I do not know. I suppose he was. I am sensible of
“ the weight of these authorities, and of the respect that is due to them,
“ though there are distinguishing circumstances in the present case,
“but if it was right to extend the act so far as is done in those cases I
“do not *know what distinction is to be relied on ; I feel myself there-
“fore under the necessity of inquiring into the foundation of those
“decisions. I do it with the utmost distrust of my own judgment,
“but if I find no ambiguity in the act, and think (however erroneous-
“ly) that the act has not been expounded but contradicted, I feel it
“my duty to adhere to the authority of the statute.
“Before the passing of this act I take the law to have been clearly
“settled, and so the act itself supposes, that when an act of bank-
“ruptcy had been committed, and a commission issued in consequence
“ of it, the property of the bankrupt was by relation so vested in the
“assignees, that any disposition of it by the bankrupt, after the act of
“bankruptcy, was void as against the creditors, however fairly such
“ disposition was made, and without any regard to its being a volun-
“tary or compulsory payment. Payments to a bankrupt stand upon
“a very different footing; and with reason. Even after notice of
“ the act of bankruptcy the payment may be good, if made under le-
“gal compulsion, for an act of bankruptcy is no defence against the
“action of the person who commits it, unless a commission is taken
“out against him, and it is not the fault of the bankrupt’s debtor if
“ the delay of the creditors in suing out the commission deprives him
“of his defence; he ought not to increase the fund by paying his debt
“twice over. But compulsion against the bankrupt, however it may
“operate in protecting payments before the act of bankruptcy, while
“the property is in the bankrupt himself, (and which it does by ex-
“cluding the imputation of fraud,) can have no effect in protecting
“payments after the act of bankruptcy. The bankrupt himself does
“not suffer by the compulsion, and the compelling creditor has only
“to refuse what he ought not to have taken, and come in for his
“share, in common with the other creditors. The question therefore
“ must turn upon the operation of the statute, and we are only to see
“whether the payment on which the present question arises is there
Char. X.] of Bankrupts and their Assignees.
353
“ described. The recital of the statute is not immaterial; it states
“the frequent commission of secret acts of bankruptcy unknown to
“creditors, and others with whom the bankrupts have dealings in
“trade, and their continuing afterwards to appear publicly, and car-
“ry on their trade and dealing, by buying and selling, drawing, ac-
“cepting, and negotiating bills, and paying and receiving money on
“ account thereof in the usual way of trade, and in the same open and
“public manner as if they were solvent persons. It then recites the
“discouragement to trade, and prejudice “to credit, from permitting
“payments to be defeated in the cases, and under the circumstances
“above mentioned; and enacts that no person, who is or shall be re-
“ally and bona fide a creditor of any bankrupt for or in respect of
“goods really and bona fide sold to such bankrupt, or for or in res-
“ pect of any bill or bills of exchange really and bona fide drawn, ne-
“gotiated or accepted by such bankrupt in the usual and ordinary
“ course of trade and dealing, shall be liable to refund or repay to the
“assignee or assignees of such bankrupt’s estate, any money which
“ before the suing forth such commission was really and bona fide,
“ and in the usual and ordinary course of trade and dealing re-
“ ceived by such person of any such bankrupt, before such time
“as the person receiving the same, shall know, understand or have
“notice that he is become a bankrupt, and that he is in insolvent
“ circumstances. The nature of the debt in the case before the court
“is not denied to be such as the statute describes, but is the mode of
“payment such as the statute requires The debt has been really
“ paid. It is stated (and so we must take the fact to be, though I
“ think the circumstances would have warranted a contrary conclu-
“sion) to have been paid without the defendant’s knowledge of bank-
“ruptcy or insolvency; but that is not all that the statute requires,
“It is further required, to be the usual and ordinary course of trade
“ and dealing, and on those words the question, or, at least, my diffi-
“ culty arises. I have endeavoured to obtain ān account of the two
“authorities wherein a payment under an arrest has been held to be
“protected, and to my great disappointment, I find little or no argu-
“ment applied to the very important words I have last alluded to,
“but a good deal to a circumstance on which the statute is totally si-
& C lent, namely, a compulsive payment, which was undoubtedly bad
“before the act. In the case at Wisi Prius, the question is consider-
“ed as a question of notice of insolvency, and what is presumptive
“evidence of such notice, or of collusive payments and preferences.
‘It is said, that a knowledge of the debtor’s being poor, or in failing
“circumstances would not vitiate the payment, and that compulsive
&
“payments were meant by the act to be protected. They are pro-
“tected before the act of bankruptcy, but the act of Parliament, I
“ think, has no view whatever to com pulsive payments, either before
“ or subsequent to the act of bankruptey. The argument of the
Vol. I. [50]
# 444
394
Čf Bankrupts and their ſissignees. [PAar II.
# 445
(b) Ante, 438.
# 446
“Court of Exchequer, though expressing great doubts on the sub-
“ject, disposes of the language of the act, on which the question aris-
“es, in a way that would “solve every difficulty in every case; it
“cuts the knot at once. It is said to be easy to ascertain what is a
“ debt contracted in the course of trade, and therefore the decision in.
“Vernon v. Hall(b) is approved of, but as to payments in the usual and
“ordinary course of trade and dealing, it is said to be difficult to
“draw the line. Then an inaccurate definition of such payments,
“supposed to have been used in argument by the counsel, is contro-
“verted, and we hear no more of those words, or of any construction
“of them ; they are, in effect, expunged from the statute, and what
“follows amounts onl y to this, that the circumstance of an arrest,
“can only be used as evidence to be left to a jury, of notice of insol-
“vency, and that if not evidence of such notice it is nothing but dil-
“igence to get payment, a means to quicken the payment, which
“ought not to defeat it, and that it is sufficient that there is no im-
“ proper motive on either side. As to the difficulty of defining
“what are payments in the usual and ordinary course of trade and
“dealing, without feeling much of that difficulty it may be sufficient
“for me to say, that it is not necessary in deciding one case upon an
“act of Parliament to decide all the cases that may possibly happen,
“ and that if, in the case before us, we can say, that the payment was
“not in the usual and ordinary course of trade and dealing, we have
“no occasion to go further. I have no difficulty in saying, that I
“admit that diligence in procuring payment of a debt used in the
“ common and ordinary way, would not of itself defeat a payment ;
“I have as little difficulty in saying, that it is no part of the purview
“ of the act to afford particular protection to diligence or activity in
“recovering debts; on the contrary, the intention is manifestly to
“protect only those who are deluded by specious appearances of sol-
“vency and credit ; and though it be true that improper motives or
“knowledge of insolvency may vitiate payments otherwise good, yet
“purity of motives alone, without the concurrence of the other circum-
“stances required by the statute,will not give validity to such payments,
“made after the act of bankruptcy. The intention of the act is not
“generally to authorise creditors to retain what they had received
“without knowledge of the insolvency : it is to place creditors of a
“particular description, and under particular circumstances in a bet-
“ter situation than the general mass of creditors. That being the
“object of the act, it was necessary, in order to prevent litigation,
“and the extension of the “act to persons not intended to receive
“ the benefit of this preference, to describe with precision the con-
“dition of those who were to have the preference; the legislature
“ have done it with guarded attention, by using as definite and re-
“ strictive language as could well be found to answer that purpose.
“To prevent the effect of any ambiguity in the meaning of the
CHAP. X.] Of Bankrupts and their Assignees. 395.
“word “usual’ they add the word ‘ordinary.’ The payment must
“not only be in that case of trade and dealing which is usual, but it
“must be that which is in the ordinary use. The propriety of con-
“fining the act to its declared objects is distinctly stated by Lord
“ Kenyon, in the case of Bradley v. Clarke.(c) The case of Vernon (c) Ante, 43%
“v. Hall(d) (if cases were necessary) appears to me a strong author. ºntº
“ity, that the act ought not to be extended in construction. If it be
“ said that that case applies only to the nature of the debt, which was
“ held to be turned into a loan, I answer, that the words of that part
“ of the clause which describes the nature of the debt, as to the course
“ of the trade, are exactly the same with those which relate to the
“ mode of payment; the debt there having been also contracted as
“ described in the act, the decision may properly refer to the mode of
“payment; but whether it does or not, the case proves, that the act
“ ceases to operate when circumstances, not referable to a trading, are
“introduced. As a remedial act I am ready to give it every exten-
“sion by construction that remedial acts are entitled to, but no prin-
“ciple applying to the construction of remedial acts authorises the
“ extension of them contrary to the intention of the legislature. It
“may also be remarked, that all the other bankrupt laws are reme-
“ dial ; that this particular act trenches upon the great leading prin-
“ciple of the bankrupt laws, that of securing the property for equal
“ distribution, by giving a preference to a particular class of credit-
“ors; and therefore is not peculiarly entitled to have its operation
“ extended by construction. It is time to resort to the facts of the
“ case, and see how far they answer the description contained in the
“ act. When the bankrupt had been publicly and openly carrying on
“ his business, we no where learn we have no act of trading stated
“but the acceptance of the bill as a partner with another person'
* After that he is arrested for debt, goes to jail, and lies there near
“ four months. After that act of bankruptcy it is not in evidence
“ that he ever appeared publicly, and carried on his trade and dealing
“in the usual way of trade, and in the same "open and public man-
“ner as if he was a solvent person, all which circumstances are by # 447
“ the preamble, supposed to attach themselves to the situation of the
“bankrupt, whose payments were meant to be ratified by this act;
“ on the contrary, he was arrested by the defendant within a week
“ after his discharge, having, according to his own account, gone off to
... Portsmouth in the mean time. Was the defendant deluded by any
“specious acts of solvency at the time of the payment P He had sued
“ out an original against the two partners very soon after the bank-
“rupt went to prison. The other partner was gone out of the king-
“dom. The defendant could not be found by the officer ; an alias
“ became necessary ; he is met with accidentally, not having been
..' found at his own house, and arrested ; to deliver him from that ar-
“rest he makes the payment. Can we say this is a payment made by
#56 - of Bankrupts and their flæsignees. [PART II.
“a person as a solvent man, in an open and, public manner, or which
“comes more directly to the enactment of the statute ; was this a
“payment in the usual and ordinary course of trade and dealing
“Are sheriffs' bailiffs the persons who transact the affairs of mer-
“chants and traders in the ordinary course of trade and dealing
“If this will do where are we to stop This is a case where payment
“has been made under an arrest; but why stop there P will not the
“argument go equally to protect payments after suing out execution ?
* If, indeed, the sheriff seizes and sells the effects, that may not be
“ considered as a payment by the party, but I can find no differ-
“ence between the present case, and cases where the bankrupt
* pays the money to prevent the seizure, or to redeem the goods after
“seizure, or even to redeem his person after he is taken upon the
“ca, sa, and payments under all these circumstances we are desir-
“ed to consider, as made under appearances of perfect solvency
“ on the part of the bankrupt, and in the ordinary course of trade,
“I feel the weight of the authorities against the opinion I am deliver-
“ing, and I am fully aware of the propriety of adhering to former de-
“cisions, and the mischief of lightly departing from them ; but I am
“in some degree relieved from their pressure by these considerations
“ that the attainment of certainty is the chief reason for submitting
“ to the authority of such determinations, as are not perfectly satis-
“factory in respect of the arguments on which they were founded,
“ and that in my view of the case before us, certainty will be better
“ attained by bringing back our attention to the language and meaning
“ of the act of Parliament, which is to be the rule of our conduct, than
443 * “ by *following the determinations; to what uncertainty they lead
- “we have an instance in the late attempt in the Court of King’s Bench,
“to bring payments to carriers for the “carriage of goods within the
*. protection of the statute, which I can only attribute to the great
“latitude of construction used in the former cases. On these grounds
... I feel myself bound to give my opinion, that the payment in question
“ is not supported by the statute 19 Geo. II., and that the plaintiffs,
“ the assignees, are entitled to recover.” , • - - -
Rooke, J. “In this case, a bill drawn bona fide, and in the or-
“ dinary course of trade has been paid after an act of bankruptcy,
“immediately upon the bankrupt’s being arrested, and neither the
“creditor, nor any one concerned for him, knew that the bankrupt
“had committed an act of bankruptcy, or was in insolvent circum-
“stances. The question is whether this payment, being immediate-
“ly upon an arrest, is a payment in the ordinary course of dealing? or
“whether being a payment by legal compulsion, it is not out of such
“ ordinary course 2 In deciding this question, I think I ought to look
“ to the effect of using legal diligence in other cases respecting bank-
“ ruptcy, and to see in what light courts of law have considered it—
C.IAP. X.] Of Bankrupts and their fissignees.
“ The statute 1 Jac. I. c. 15. s. 14. provides, that no debtor of a bank-
“ rupt be hereby endangered for the payment of his debt truly and .
“bona ſide to any bankrupt before such time as he shall understand
“ or know that he is become bankrupt.— The strict construction of
“ this statute would be, that if he did understand or know it, his
“payment should be endangered: but courts of law have held, that
“if a creditor has notice of a bankruptcy, and pays under legal coer-
“cion he shall be protected. See 3 Keble, 231. Freeman, 349. S. C.
“2 Term Rep. 479. Here then a payment by legal compulsion is
“ supported even against the obvious construction of the statute, and
“hence, I conclude, that in cases of bankruptcy, payments by com-
tº pulsion of law are favoured and protected. The words of the sta-
“tute 19 Geo. II. are very different from those of 1 Jac. I.; but
“ they do not expressly avoid payment by legal coercion, nor exclude
“ them from protection; and if excluded they must be excluded by
“implication only ; and such implication if applied to the whole
“clause on which this action arises will go a great way, indeed, to in-
“validate bona fide payments to honest creditors. The statute 19
“Geo. II., so far as respects bills, requires that they be drawn, or
“accepted really and bonafide, and in the usual *and ordinary course
“of trade and dealing. Now if an arrest so far changes the ordinary
“course of trade and dealing, as to affect the payment of a bill, it will
“equally affect the drawing, the negotiating, or the accepting it. The
“consequence will be, that if a debtor having committed a secret act
“ of bankruptcy is arrested and gives or accepts a bill payable at a
“future day, and actually pays it, and then a commission issues, the
“assignees may recover back the money. This will be a very dan-
“gerous construction, and will render all transactions under an ar-
“rest very precarious. It has been suggested, that payment under
“arrest is not to be favoured, because the arrest is a circumstance
“which should raise a suspicion of insolvency. If so, by the same
“reasoning, payment under a threat of arrest will be equally suspi-
“cious; for whether a man pays before the bailiff arrests him or af.
“ter, if he pays under terror of a jail, he pays under compulsion; and
“the compulsion in either case may with equal reason raise a suspi-
“cion of insolvency. If a threat to arrest does not alter the nature of
“a payment, and take it out of the ordinary course of dealing, (and
“it has not been contended in argument that it does) it will be diffi-
“cult to assign any sound reason why an actual arrest should do so.
“There are stages in the proceedings between the threat and the ac-
“tual arrest which are as much out of the ordinary course of dealing
“ as the arrest itself; and what line shall we draw by our discretiona-
“ry construction where the legislature has drawn none P Shall we in-
“quire, is the writ purchased ? is it delivered to the bailiff? is the
“bailiff in the house 2 has he seized the debtor P or is he only in the
“act of doing it? When is it that the ordinary course ceases, and the
# 449
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of Bankrupts and their Assignees. [PART II.
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(e) 2 Bos. &
Pull. 399. m.
3 *
“extraordinary begins P. As the words “usual and ordinary course
“‘ of trade and dealing’ do not necessarily exclude transactions, ei-
“ther by menace or by compulsion of legal process, I am not disposed
“to extend them to either case: they are general words, and they
“may be intended to apply to the case of undue preference: for a
“man may be disposed to pay a debt really and bona fide due, from a
“desire to favour a particular creditor, and may go out of the ordina-
“ry course of trade and dealing to do so. Payments under legal com-
“pulsion having been favourably considered by our courts in the con-
“struction of Jac. I., I think they ought to be as favourably consid-
“ered in the construction of 19 Geo. II, which is in pari materia. Le-
“gal coercion is a course which the law allows, and surely if we at-
“tend to the literal construction of the statute, it is neither unusual
“nor extraordinary, *nor out of the ordinary course of dealing for a
“creditor to be driven to arrest his debtor, or to use legal diligence
“in order to procure payment. T he taking out legal process does
“not depend so much on the real credit of the debtor, as on the pa-
“tience or impatience of the creditor. If a creditor is obliged to call
“four or five times on a debtor before he can obtain payment, it may
“awaken suspicion. If a patient creditor does this and receives pay-
“ment, he is protected. Shall we say that if a harsh creditor calls
“once, and then arrests and is paid, he shall refund P Shall we con-
“sider his severity as proof of his debtor's insolvency. The statute
“has given one positive criterion, viz. knowledge of the bankruptcy
“or insolvency; and has also required that the transaction shall be
“in the ordinary course of trade and dealing; but as it has not defin-
“ed what that ordinary course must be, the courts of law must, as
“cases arise, declare what is within the ordinary course, and what is
“not. I have now given my reason why, upon general principles, I
“think that arrest or legal diligence is not within the restriction of
“ the statute; but if it were a doubtful point how the statute should
“be construed, I must consider myself as bound by the construction
“it has already received in two courts in Westminster-Hall—The
“, case of the assignees of Jones v. Lingard was tried before Lord
“Loughborough, and afterwards was heard in this court on a motion
“for a new trial. There the creditor brought an officer with the writ
“into the shop, and then the debt was paid, and the payment was held
“ to be good. The case of Holmes v. Wennington,(e) was decided on
“solemn argument in the Court of Eachequer. These cases have
“ been cited in the court of King’s Bench, in the case of Bradley v.
“Clarke; and no doubt was hinted in that court as to the propriety
“ of the decisions; yet Lord Kenyon particularly notes, how right it
“is to adhere to the words of the statute. We are also informed,
“ that the late Mr. Justice Buller ruled the same point on the North-
“ern Circuit, and that no application was made for a new trial. For
“these reasons, I think the verdict should be entered for the defend-
** ant.”
GHAF. X.] Of Bankrupts and their Assignees.
399
Heath, J. “The question is whether a payment by a tradesman,
“ who has committed a secret act of bankruptcy, to a creditor who
“has arrested him, and who has no knowledge of the act of bank-
“ ruptcy, or of the insolvency of his debtor, be good within the statute
19 Geo. II. P
“*Before that statute, it was the policy of the bankrupt laws, in
“all cases, to deprive the bankrupt, by relation to his act of bank-
“ruptcy, of the power of disposing of his effects. In order to avoid
“ the inconveniencies arising from too rigid an observance of this
“principle, the act in question was made. It has always been con-
“sidered as a remedial statute, and, as such, is entitled to a liberal
cé construction. In order to give validity to the payment of a bill
“of exchange, it must be drawn and the money received in the ordina-
“ry course of trade. In my apprehension this bill had both requisites.
“Of the consideration of the bill there is no question. The bill was
“ due before it was paid, and it was not officiously paid by the
“bankrupt. The objection is, that the payment was made under the
“terror of an arrest. If the bill had been paid before it became due,
“or if the bankrupt had solicited the defendant to receive money,
“ those circumstances would have vitiated the transaction, and would
“have brought the case within the statute. It is objected that the
“payment is under an arrest. If this were to be the ground of the
“decision it would introduce great uncertainty : for if an arrest will
“vitiate a payment, why not a menace P and if a menace, why not a
“promise of some collateral advantage 2 There are two principles
“ on which I shall found my judgment: the first is the general poli-
“cy of the law, that the using of legål diligence is always favoured,
“ and shall never turn to the disadvantage of the creditor. The max-
“im vigilantibus et non dormientibus succurrunt jura, is one of those
“that we learn on our earliest attendance in Westminster-Hall. The
“second principle is, that this statute shall receive a construction
“ agreeable to the general policy of the bankrupt laws, namely, that
“it shall not be in the power of the bankrupt to dispose of his effects,
“after his bankruptcy, in such a way as to give a preference to a fa-
“vourite creditor. Now if payment under an arrest, though other-
“wise in a due course of trade, were to be held bad, the consequence
“might be, that if in the same day, or at the same instant, two credi-
“tors should apply for payment of their respective demands, the
“bankrupt might make a good voluntary payment to one creditor, and
“refuse payment to the other till there had been some menace or ac-
“tual arrest made, to vitiate the payment. I can see no inconveni-
“ence from this construction. If it be said that the creditors under
“an arrest might sweep away all the effects of the bankrupt; so
“may the favoured creditor under a voluntary payment; and the lat-
“ter mischief is the most to be apprehended. Therefore I am of
“*opinion, as well upon the general policy of the law that favours
# 451
% 4.52
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of Bankrupts and their Assignees. [Pawr iſ.
(f) 7 East's
Rep. 154.
$ 453
“the legal diligence of creditors, as on the particular policy of the
“bankrupt laws, that this is a good payment, and protected by the
“statute 19 Geo. II. If the case were doubtful, the decisions ought
“to put an end to the controversy. I allude to the cases of Calvert
“ v. Lingard, in this court, and of Holmes v. W.ennington. I cannot
“pass over in silence the opinion and decision of the late Mr. Justice
“Buller, whose judgment will always have the greatest weight with
“me. The question is, whether this be a doubtful case ? A case may
“not be the less doubtful because I entertain no doubt on the sub-
“ject; but that is doubtful concerning which learned men differ.
“For these reasons I am of opinion that the plaintiff is not entitled
“to recover, and that a verdict should be entered for the defendant.”
But a payment of a debt by a garnishee, out of the bankrupt's es-
tate, under a judgment of the Mayor’s Court in London, on a foreign
attachment, is not protected by the statute 19 Geo. II. c. 32. s. 1. and
the assignees of such bankrupt, under a third commission issued
against him, may sue for and recover back the money so paid, although
the bankrupt, who had obtained his certificate under two former com-
missions, had not paid 15s, in the pound under the second : in which
case his future effects remain liable to that extent to his creditors un-
der the second commission. -
Thus, in the case of Hovil and others, assignees of Wardell, a bank-
rupt, v. Browning,(f) which was an action of assumpsit for money
had and received, a verdict was found for the plaintiffs for 367l. 16s.
6d. subject to the opinion of the Court of King's Bench, on the follow-
ing case, which stated, “ That in November, 1802, Wardell, being a
“trader, became indebted to the defendant in 367l for goods sold and
“ delivered, and, on the 27th of January, 1803, set sail in a ship, of
“which he was the sole owner, with a cargo for the West Indies, hav-
“ing only a few days before committed a secret act of bankruptcy.
“In July, 1803, insurances to the amount of 3,400l. were effected for
“ the bankrupt by Mr. De Beaume, a policy broker residing in Lon-
* don ; and in the same month the ship and cargo were captured by
“ the French. On the 20th of January, 1804, the defendant brought
“an action in the *Mayor’s Court of London, against the bankrupt,
“ and attached 36rl. in monies numbered in the hands of De Beaume,
“who had received the amount of the policies of insurance from the
“ underwriters; and the defendant having, on the 28th of the same
“ month, obtained a regular judgment by default in that action, re-
“ ceived 367 l. in that action from De Beaume. The bankrupt retur-
“ned to England in February, 1804; and on the 9th March follow-
“ing, a commission of bankrupt was issued against him, under which
“ the plaintiffs were chosen assignees, and an assignment to them was
“regularly executed. De Beaume retained from the plaintiffs as,
$ . . . • ? . . . . * • . . ; g • * ** . .
ūHAP. X.] Of Bankrupts and their Assignées.
“such assignees, out of the monies he had collected on the policies,
“the amount of the payment he had made to the defendant. War.
“ dell had been a bankrupt twice before, viz. once in the year 1786,
“ and again in the year 1788; and had obtained his certificate under
“ those commissions but had not paid a dividend of 15s. in the pound
* under the last of then , and his creditors at that time still remain-
“ed unsatisfied.” The question for the opinion of the court was,
whether the plaintiffs were entitled to recover,
The Court were of opinion, first, that this was not a payment pro-
tected by the statute; and, secondly, that the future estate of the
bankrupt only remained liable to the claims of his individual credi-
tors under the second commission, not having received 15s, in the
pound which they might respectively sue for as in other cases; but
that it could not prevent the vesting of the bankrupt's estate in the
assignees under a third commission, for the benefit of all the credi.
tors.
Lord Ellenborough, Ch. J. said, “I think that this was not a pay-
“ment by the bankrupt; for the words of the statute are, that no
“‘ creditor shall be liable to refund to the assignees any money which,
“‘before the issuing of the commission, was really and bonafide,
“‘ and in the usual and ordinary course of trade and dealing recei-
“‘ved by such person of any such bankrupt, before such time,’
“ &c. If it had been necessary to have decided the question on
“ which the Court of Common Pleas were divided in opinion, in the
“ case of Cow v. Morgan(g) I should have wished to have taken more
“ time *to consider it, especially as the opinion of the majority of that
“court is fortified by antecedent cases; though I confess that, at
“ first sight of the statute, I should be more inclined to the construc-
“tion put upon it by the single judge. But there is no necessity for
“ us to determine whether that case were rightly decided by the mas
“jority; for whether or not money received by a creditor, under
“ the compulsion of process, can or cannot be said to be received by
“ him in the usual and ordinary course of trade and dealing; at least,
“it must be received of the bankrupt to bring the case within the
“ statute; the payment must be made by the bankrupt, or if not by
‘ his individual hand, at least by some agent of his, acting by his
“ authority. But how can a payment, extorted by compulsion of
“legal process, from one who happened to have effects of the bank-
“rupt in his hands at the time, be said to be a payment by the bank-
“rupt, who was not even conscious of the fact? Therefore, without
“going more at large into the question, it is sufficient to dispose of
“ this case by saying, that it neither comes within the words nor the
“ meaning of the statute.” -
Wor... F. [51]
abi
(g) 4n té, #:
# 454.
402
of Bankrupts and their Assignees. [PART H.
$ 455
Lawrence, J. “ This cannot be said to be a payment by the
“bankrupt, even under the compulsion of process; for the bankrupt
“ could not even know that the money belonging to him was in the
“hands of the person at the time by whom the payment was in fact
* made.”
Le Blanc, J. “This is very different from cases of payments made
“ by a person entrusted by the bankrupt with the disposition of his
“ property, or by his direction, which may be considered as payments
“made by him in the usual and ordinary course of trade and dealing.
“But it is very difficult to say that a payment made by a third person
“ without the knowledge of the bankrupt, without his even knowing
“ that his property was in the hand of such third person, is a pay-
“ment in the usual ordinary course of trade and dealing by the bank-
“ rupt himself.”
*8. In what Cases an Action of Assumpsit will lie at the Suit of the
Jässignees for Money, or Goods received of a Bankrupt either in
Contemplation of, or after an ºffet of Bankruptcy.
If money or goods be paid or delivered over by a bankrupt to a
creditor not in the ordinary course of trade, but in contemplation of,
or after an act of bankruptcy, and with a view to favour that partic-
ular creditor, in preference to the other creditors, the assignees may
recover back such money, or goods, so paid or delivered.
Thus in the case of Linton, assignee, v. Bartlet,(h) where a trader,
in consideration of a loan of 120l. without interest, being in insolvent
circumstances, assigned one third-part of all his effects to the lender,
who was his brother; and within two days after the making the deed,
the trader absconded, and a commission was sued out against him,
whereupon he was declared a bankrupt.
Per Curiam. “ Although this may be a hard case upon the brother,
“who is a bona ſide creditor, yet the giving him the preference is a
“fraud upon all the laws concerning bankrupts, which proceed upon
“equality, and say that all the creditors shall come in pari passu.
—º: $. º: 1 *-* -- ºl. 1
(h) 3 Wills. 47. In this and some of the following cases, the reader will
observe that the form of action is trover. But as the assignees may elect to
declare in assumpsit, or trover; for the same cause, where money has been ac-
tually paid, or goods sold, &c. the cases in both forms of action equally apply
to the present subject. It should, however, be observed, that in the case of
goods delivered, if the assignees elect to bring assumpsit for goods sold and de-
livered instead of trover, they thereby affirm the contract, and the creditor may
set off his debt against the demand of the assignees. See the case of Smith and
others v. Hodsen, 4 Term Rep. 211.
CHAP. X.] Of Bankrupts and their Assignees.
499.
“There is no case where ever such a preference as this was allowed,
“The same spirit of equality ought to warm the courts of justice
“which warmed the legislature when they made the bankrupt laws ;
“ and if we should let this deed stand, we should tear up the whole
“bankrupt laws by the roots; it is a bill of sale made by a trader, at
“a time when he was insolvent, and (plainly) had an act of bank-
* ruptcy in contemplation; it is partial and unjust *to all the other
* creditors.” Judgment was therefore given for the plaintiff and
the deed was declared to be void. s
So, in the case of ºlderson and others, assignees, v. Temple,(i)
which was also an action of trover for a promissory note, brought by
the plaintiffs, as assignees of Charles La Roche and Robert Willing,
bankrupts. The facts were these: The bankrapts La Roche and
Milling, on Friday 7th of November, 1163, indorsed the note in ques-
tion to the defendant Temple, to whom they were indebted to a large
amount; and sent it in a letter directed to him at Trowbridge ;
which letter was carried to the post house that morning, the bank-
rupts thinking that the post-day for Trowbridge. The letter, by the
course of the post, (which went out on the Saturday night) was re-
ceived by the defendant some time on Monday the 10th, and could not
be sobefore, The note in question was, -
66 London, 10th October, 1766. Two months after date we prom-
“ise to pay Messieurs La Roche and Willing, or order, six hundred
“ pounds, for value received. t
*- - - - * Bryer & Everard.”
The bankrupts had given Bryer and Everard two notes for 300l.
each ; which had not been discharged. La Roche and Willing com-
mitted acts of bankruptcy on Saturday the 8th ; and the said note
was so indorsed, and sent to the defendant, in contemplation of their
insolvency and subsequent failure.
The Court held, that the indorsing and sending the note, under the
circumstances stated, were fraudulent as against the other creditors,
and particularly Messrs. Bryer and Everard.
Lord Mansfield, Ch. J. said, “It is material to observe a great deal
“that is not stated in this case. First. There never was any course
“of dealing between the bankrupt and the defendants by way of in-
“dorsing, or sending notes to each other. The next thing is, that
“ the letter in which the note was sent, is suppressed by the defend-
“ant. It is not found, that the note was indorsed in payment of
“any debt; it is only said, “he was a creditor to a larger amount.”
“It is not said whether it was to be received at the risk of Temple or
“only as agent of the bankrupts ; but the letter, which was in the
“power of the defendant was not produced ; and so the case “stands
%. 456
(2) 4 Burr.
2235. 1 Bl.
Rep. 660.
S. C.
# 45%
404
Qf Bankrupts and their Assignees. [PART II,
(k) Atkins v.
Barwick, 1
Stra. 165.
* 458
“without any appropriation of the note. The case is silent in these
“particulars; and very materially so.
“It is found that Bryer and Everard were creditors of the bank-
“rupts to just the same amount, for two other notes they had taken
“in exchange; and that those two notes were not discharged. The
“only question I make is, whether, under the circumstances of this
“case, the indorsing and sending this note to the defendant is fraud-
“ulent and void, as such F and I choose to put the case on that
“ground ; because the most desirable object in all judicial determi-
“nations, especially in mercantile ones, (which ought to be determin-
“ed upon natural justice, and not upon the niceties of law,) is, to do
“substantial justice ; and therefore I will avoid laying the stress that
“might properly be laid upon the assent being necessary to complete
“the contract, or the want of a delivery ; the solid ground of which
“is, that a contract shall be presumed complete upon any distinction
“where the justice of the case requires it, though there is no actual
“delivery. And it is settled that if a man sends bills of exchange, or
“consigns a cargo, and the person to whom he sends them has paid
“the value before ; though he did not know of the sending them at
“the time, the sending of them to the carrier will be sufficient to pre-
“vent the assignees from taking these goods back, in case of an inter-
“vening act of bankruptcy. But if goods or bills of exchange are sent
“and the consideration has not been received, the Court of Chancery,
“always interposes; and there are numbers of adjudged cases of that
“kind in Chancery, In the case in Str.(k) there is no doubt but the
“honesty of the case inclined the court to the judgment they gave.
“The reason given turns upon a subtilty. The Court of Chancery,
“in that case, would have interposed, and said the assignees should
“not have the goods without paying the price. I think the determi-
“nation was right ; and there was an actual delivery to a person who
“became a trustee : but a post-boy is not a trustee. I think the case
“was well supported upon other grounds than those mentioned in
“the book. -
“I ground my opinion on this, whether the indorsement be fraudu-
“lent: and as to that, it is certain that the statutes of bankruptcy
“leave a trader, to the moment of an act of bankruptcy committed,
“every power an owner can have over his estate. The statute “says,
“fraudulent conveyances shall be an act of bankruptcy. Other acts
“that are fraudulent are not made acts of bankruptcy; but they are
“ attended with the consequences of fraud at law; which is, that
“ fraud renders every act void. - -
“All acts to defraud creditors, or the public laws of the land, are
“void : and if the nature of the act be a conveyance or grant, it is not
“ only void, but an act of bankruptcy. It has been determined that a
“conveyance by a trader of all his effects, for the payment of one or
“ more bona fide creditors of the most meritorious kind, though his
CHAP. X.] Of Bankrupts and their Jassignees.
405
“ effects do not amount to half what is due, is void; because it is not
“an act in the ordinary course of business; it is not such an act as a
“man could do, but it must be followed by an immediate act of
“bankruptcy; and it is defeating the equality that is introduced
“by the statutes of bankruptcy; and the criminal (for the bankrupt
“ is considered as a criminal) is taking upon himself to prefer whom
“ he pleases. But suppose he leaves out a considerable part of his
“ effects : if it appears to be only colourable, that don’t vary the case;
“ it is fraudulent. Suppose a trader makes a conveyance of all his
“ estate for the payment of all his creditors except one, (which was
“ the case of Gayner, cited in Demaito’s case)(1) it is void. Sup-(D 1 Burr.
“ pose it was, to pay all his creditors rateably ; if there were no as- 477.
tº sent of his creditors, or composition, it would be void, for it would
“be rescinding the whole system of the bankrupt laws, and instead of
“applying to the great seal, he would choose his own trustees. If
“ this is a fraudulent act, it is void.
“A general question has been started, whether in any case, upon
* the eve of a bankruptcy, a man may do that which in consequence
* prefers a particular creditor; and that has been argued as a gene-
* ral question. But that will depend upon the act. As if a bank-
“rupt, in course of payment, pays a creditor; this is a fair advantage,
“in the course of trade: or, if a creditor threatens legal diligence,
“ and there is no collusion: or begins to sue a debtor; and he makes
“an assignment of part of his goods; it is a fair transaction, and what
“a man might do without having any bankruptcy in view. Suppose
“such a case as Small and Oudley :(m) there it was for the advan-
“tage of the creditors, and no fraud to them; and if part of the trans-
“action were set aside as fraudulent, the whole must. But it never
“entered into the mind of any judge, to say, “that a man in contem-
“ plation of an act of bankruptcy, could sit down and dispose of all
“his effects to the use of different creditors: for that would be a
“fraud upon the acts of bankruptcy. But if done in a course of trade
“ and not fraudulent, it may be supported. ' ' ' ' r
“This was not done in a course of trade : for there never was any
“dealing between the parties in sending indorsed notes. There was
“ no application made by the defendant. And it was done with a
“view to positive iniquity : for the bankrupts had received this note
“ from Bryer and Everard, for notes of the same value; and know-
“ing they should become bankrupts the next day, to defeat Bryer and
“Everard of setting off their notes against it, indorse this note to
“ another person. And there was no way of doing justice to Bryer
“ and Everard, but supporting the claim now made by the assignees.
“So that there was express particular fraud at the time the fact was
“ done. Next it is an act that is most certainly not complete as be-
(m) 2 P.
Wms. 427.
3% 459
... (n) 4 Burr.
“tween the parties. The argument in the case of Scott(n) is very #1.
“applicable to the present. For there was a preference given to a
406
(ºf Bankrupts and their Assignees. [PART II
(0) Ibid.
2447. See
also Rust v.
Cooper,
Cowp. 629.
S. P.
* 460
“bona fide creditor; but he knew nothing of it. Suppose in the
“course of trade, a bill is sent to Constantinople, and a bankruptcy
“happens in England before it arrives; yet it may be good. But
“here it is done because they were resolved to commit an act of
“bankruptcy.” 4 * . . . . . • * * * * * *
So, in the case of Martin and others, assignees of Edward Robarts,
a bankrupt, v. Thomas Pewtress, and Josiah Robarts,(o) which was
an action of trover for goods to the amount of 19,5621, 17s. 8d. The
facts were as follow : “The defendants were bankers, and large cre-
“ditors of the bankrupt. Edward Robarts, the bankrupt, was the
“brother of the defendant, Josiah Robarts. The value of the goods
“for which this action was brought, got into the hands of the defend-
“ants in the following manner: Edward Robarts bought goods upon
“credit from several tradesmen who did not suspect his circumstan-
“ces. The defendants employed agents to buy these goods from the
“bankrupt: particularly one Nathaniel Sweet, who had been a bank.
“rupt, and was then insolvent, bought, between March, 1767, and
“June, 1768, (when *Edward Robarts became bankrupt,) to the
“amount of 7,709, at prime cost; for which he gave his note paya-
“ble at a future day—These notes were paid in to the defendants;
“and Sweet sold the goods for the use of the defendants, and account.
“ed with them for the profits, as their agent. r
“The defendants sent another man, one Moses Birch, to buy goods
“of the bankrupt to the amount of 2,1631. 158. 11d. prime cost; and
“furnished him with bank notes to that amount to pay for them. He
“paid these notes to Edward Robarts, the bankrupt, who changed
“them at the bank for others, which he paid in to the defendants.
“Birch sold the goods for the use of the defendants, and paid them
“the produce; and in like manner as to all the rest. The price, at
“prime cost, was furnished in paper by the defendants to the agent;
“received by Edward Robarts, and returned to the defendants; or
• notes given by the agent, which notes Edward Robarts paid in to the
“defendants and discounted with them : and the goods were all sold
“for the benefit of the defendants; and the money accounted for to
“them, by the nominal and apparent purchasers.” - - -
The court gave judgment for the plaintiffs on the ground of fraud.
Lord Mansfield, Ch. J. said, “The fraudulent design and intention
“must depend on circumstances. In the present case it is as clear
“ as the sun, that the whole was a wicked scheme, concerted between
“ the defendants and the bankrupt Edward Robarts to keep up his
“credit, to enable him to get goods which were to be employed to
“ satisfy and discharge the debt due to the defendants. One of
“ them is brother to the bankrupt. They must have known his in-
Char. X. of Bankrupts and their Assignees.
407
“ solvency; for to their knowledge the goods were sold at prime cost.
“The bankers did not deal in such goods. Had they bought them
“openly and in their own names, and applied the money to sink the
“ debt due to them, the neighbourhood would have been immediately
“ alarmed. They knew that the persons who sold their goods upon
“credit to the bankrupt, would never be paid.”
So, in the case of Harman and others, assignees of Fordyce v. Fish-
ar,(p) where the facts stated for the opinion of the Court of *King’s
Bench were as follow : “The defendant was a creditor of the part-
“nership of Fordyce and Co. and on various occasions had done them
“many acts of friendship, and being already a creditor for 1,300l.
“ upon the 6th of June, 1772, paid into the shop of Fordyce and Co.
“ as bankers, the further sum of 7,000l. and had it written in his
“book, according to the usual course ; which sum he had borrowed
“for the purpose of accommodating his shop during the holidays;
“ and at the time the money was paid in, he ordered the person who
“paid it to tell them he should not draw the money out before the
“Friday following, which they were told accordingly. On the 9th of
“ June, Fordyce sat up all night settling his books and affairs in con-
“templation of absconding ; and being possessed in his own separate
“right of the two notes described in the declaration, about five
“ o’clock in the morning, he inclosed them in a letter to Mr. Fishar as
“follows: ‘Mr. Fordyce, conceiving that the money lodged by Mr.
“‘ Fishar with his house on Saturday last, was a sum, about which,
“‘perhaps, even some pains had been taken to place it there, he has
“‘the honour to shew him that preference which he conceives is cer-
“‘tainly his due.’”
5,500l. Collins and Co. 3d July.
11,7021, 18s. 4d. T. Wm. Jolly, 20th June. - - -
“That Fordyce delivered the letter and notes to Mr. Harrison, his
“ clerk, with directions to carry them to Mr Fishar’s office, and give
“ them to him. About six o'clock the same morning Fordyce abscon-
“ ded and went to France. At half an hour after eleven o’clock the
“ same morning a commission of bankruptcy duly issued against him.
* Harrison, about ten o’clock the same day called at the defendant’s
* office; not finding him at home he returned again about twelve; but
“it being holiday time the office was shut up. That on Thursday,
“ the 11th, Harrison delivered the letter with the notes to Mr. James,
“ one of the partners of Fordyce, who sent for the defendant; when
“Mr. James, in the presence of the defendant and Mr. Bellamy, open-
“ed the said letter, and delivered it with the notes to the defendant,
“who having read the same to the company present, took them away
“ with him: that they remain in his possession, and that he refused
“to deliver them up. That Fordyce was indebted to the partnership
“in a larger sum than the amount of the notes in question.
* 461
(p) Cowp.
117. Loft’s
Rep. 472. S.
C; See also
Hague v. Ro-
leston, 4 Burr.
2174. Small
v. Oudtey, 2
P. Wms. 427.
S. P.
408
Of Bankrupts and iheir Assignees: EPART II.
#462
(º) 6Term
Rep. 80.
# 463
*The court determined that the notes were given to the defendant
fraudulently, and in contemplation of an act of bankruptcy; and there-
fore judgment was given for the plaintiffs. ' ' - -
So, where a sale of goods has been completed by actual delivery to
the buyer, who afterwards becomes insolvent before they are paid for,
he cannot rescind the contract, and return the goods, with the con-
sent of the seller, so as to give the seller a preference to his other cre-
ditors.
Thus, in the case of Barnes v. Freeland,(q) which was an action of
trover brought by the plaintiff as assignee of Lloyd, a bankrupt, for 60
tons weight of iron; and at the trial the following admissions were
made by the parties. On the 9th of November, 1792, the de-
fendant agreed to self to the bankrupt 44 tons, 7 cwt. 34rs. 14lb. of
iron at 15l. 15s. per ton, for the amount of which the bankrupt agreed
to accept a bill of exchange at nine months’ date, to be drawn on him
by the defendant: and the defendant, on the same day, delivered the
iron to the bankrupt. The defendant, in pursuance of the agreement,
on the same day drew a bill of exchange on the bankrupt for 6991.4s.
the amount of the purchase money payable at nine months after date
which the bankrupt then accepted, payable in London, and redeliver-
ed to the defendant, but it did not become due until after Lloyd's
bankruptcy, and it has been since protested for non-payment. The
bankrupt transacted business with Caldwell and Co. of Liverpool, as
his bankers, and on the 18th of March, 1793, was indebted to them in
a considerable sum of money; but the defendant was totally ignorant of
the state of their accounts. On the 18th of March, 1793, Caldwell and
Co. stopped payment, of which the bankrupt heard in the morning of
that day, and immediately went to the house of the defendant; and
informed him that the bank of Caldwell and Co. had ſailed, and that he
should not be able to take up the bill which he had accepted, for the
amount of the iron, meaning, the bill before mentioned; for that in
consequence of Caldwell and Co.'s failure he (the bankrupt) must
stop payment. On the same day he wrote to several of his creditors
to the same effect, as to the necessity of his stopping payment;
and the bankrupt informed the defendant, that the beforementioned
44 tons, 7cwt. 34rs. 14lb. of iron *had not been removed from the
warehouse wherein it was at the time of the sale to the bank-
jupt, and said he thought it would be an act of justice to return to
the defendant the iron so bought, as he should not be enabled to
pay for the same, or to take up the accepted bill. The defendant ac-
cepted of the offer so made by the bankrupt, but said he did not wish
to have the iron, unless the transaction was fair and right ; and at
the same time the bankrupt delivered a bill of parcels to the de-
fendant dated the 16th of that month of 50 tons of iron, including the
bhar. x.] of Bankrupts and their Assignees.
#63
iron so bought on the 9th of November, 1792, because he at that time
owed the defendant a further sum of money on a bill accepted by the
bankrupt for another parcel of iron bought by him from the defendant;
and he therefore thought it his duty to give up the additional quan-
tity beyond the 44 tons, 7 cwt. 3Grs. 141b. This bill of parcels was
dated on the 16th of March, 1792, and was for 50 tons, at 15 guin-
eas per ton, amounting to 787l. 108. The bankrupt, in his account
with the defendant, debited the defendant with the amount of this
bill of parcels thus, “ March 16th, to the amount of 60 tons of iron,
“sold him this day, 787l. 10s.” 44 tons, 7 cwt. 34rs. 141b. part of the
iron mentioned in this bill of parcels is the same which was sold and
delivered by the defendant to the bankrupt on the 9th of Novembers
1792; but the remainder was a parcel of iron which the bankrupt
had received in exchange for other iron which the defendant and
the bankrupt had some time before purchased in partnership, which:
upon a division of such joint purchase, had been allotted and delivº
ered to the bankrupt, the bankrupt and the defendant having over-
paid the sellers of the last mentioned iron, bought on their joint ac-
count, they received the balance from the sellers in a bill, which has
been since by the bankruptcy of Lloyd protested for non-payment, and
taken up by the defendant: and this is the only unsettled transaction
relative to that co-partnership. No conversation passed between
the bankrupt and the defendant on the 18th of March, relative to
this co-partnership transaction. On the 18th of March, 1793, the
bankrupt delivered the last mentioned bill of parcels, and also the key
of the warehouse wherein the whole of both parcels of iron was depos-
ited but not intermixel, to the defendant, who kept possession there-
of, but did not return to the bankrupt the bill of exchange for 6991.
4s. which was accepted by the bankrupt as aforesaid, he the defendant
having paid away the same in the usual course of trade, and the same
was not then in his, the defendant’s “possession, but the defendant
promised to take up and cancel the same, which he accordingly did.
The defendant has, since the bankruptcy of Lloyd, sold the whole of
both parcels of iron on his own account, and received the purchase.
money for his own use. The defendant did not imake fify applica-
tion to the bankrupt to re-deliver or re-sell to him the iron included
in the last mentioned bill of parcels: but the samé was à voluntary
offer of the bankrupt wholly unsöught by the defendant. This iron
was all the stock in trade of the bankrupt in his actual possession:
but the defendant was not privy to this fact: and the bankrupt was
indebted to the defendant in a further sum of money, exclusive of
the transaction before stated, viz. 200l. and üpwards. The bank-
rupt, knowing himself to be insolvent, was determified not to do any
other business after the failure of Caldwell and Co. as before men-
tioned ; and he, therefore, without the knowledge of the defendant,
until the same was delivered to him, dated the bill of parsels the
Woº. P. ſ52]
#464
410
of Bankrupts and their Assignees. [PART II.
16th of March, and entered it in his books under that date. The
bankrupt did not transact any business after that date : on the 33d
of March he committed an act of bankruptcy; a commission of bank-
rupt issued against him on the 28th day of the same month ; and the
plaintiff is assignee of his estate, &c. The iron which the defendant
sold to the bankrupt on the 9th of November, 1792, is of the value of
665l. 9s. 1d. and the remainder of theiron included in the latter bill
of parcels made by the bankrupt to the defendant on the 18th of March’
1793, is of the value of 591. 15s. 5d.
The court were of opinion, that the buyer could not rescind the
contract, and return the goods to the seller, so as to give him a pre
ferénce to his other creditors. -
Lord Kenyon, C. J. said, “ The rules of law are framed with a
“view to benefit the bankrupt’s creditors in general, and not to give a
“preference to any in particular. It is said, however, that the ven-
“dor may in all cases rescind his contract with the consent of the ven-
“dee at any time before the bankruptcy of the latter: but if that were
“so, all the creditors of a bankrupt, whose goods remained in his
“hands in specie, might when they found that he was in insolvent
“circumstances, go to the bankrupt’s property, and bring away what
* 465
(r) .4nte, 46.
“ each had contributed to the fund, leaving nothing to satisfy the rest
“of the creditors. The present seems to be an extremely “clear
“case, for it is founded in fraud. The parties themselves endeavour-
“ed to give a different complexion to the transantion from that which
“is the true one, and in order to mislead the creditors of the bank-
“rupt, they made a false entry in the bankrupt's books; where it was
“stated that the re-delivery of the goods to the defendant was made two
“ days before the time when the transaction really took place; and
“that fact is of great importance: because that antedate carries the
“re-delivery back to a time previous to the bankruptcy of Caldwell
“ and Co. on which depended the solveney of the vendee. The goods
“here were originally sold and delivered to the vendee, and they
“were locked up in his warehouse; therefore there was a complete
“transfer of the property from the defendant to the bankrupt at the
“ time; and the question is, whether, when the latter became insol-
“vent he could redeliver it back to the defendant in specie. I can-
“ not distinguish the present case from that of Harman v. Fishar,(r)
“ on principle, for this bankrupt knew his fnsolvent situation at the
“ time when he wished to deliver back the goods in question to the
“defendant, as well as Fordyce did in that case; there Fordyce, find-
“ing that he was insolvent, was anxious to repay to the defendant
“ some bills which the latter had lent him, and though those bills
“were as easily distinguishable from the rest of his effects as the iron
“in question was from the rest of this bankrupt’s property, the court
“ there held that it could not be done, because it would prejudice the
* other creditors of the bankrupt. Three cases, however, have been
Char. X.] of Bankrupts and their flssignees.
411.
“cited, and pressed upon us, as deciding the present: but I think
“they are to be distinguished from this. In Atkin v. Barwirk,(s) the
“vendees finding that their affairs were in a declining condition be-
“fore the goods arrived at their house in Cornwall, refused to accept
“the goods, and thereby refused to become parties to the contract of
“sale; and though when the goods did arrive by the waggon, the ven-
“dees could not turn them loose in the etreet, yet they did what was
“tantamount to rejecting them, they sent them to a friend of the con-
(s)1 Stra. 165,
“signor’s for their use. In Salte v. Field,(t) consider who was the (t) 5 Term
“ party to the contract; not the clerk of the vendee who lived in Lon- Rep. 311.
“don, but Berthurst, whº was residing in New-York; and he, know-
“ing his insolvent situation, sent orders a month before the transac-
“tion in dispute took place, to his clerk here not to purchase any
“ more *goods for him ; the clerk, immediately on the receipt of this
“ order applied to the vendors to take the goods back again, who
“ agreed to rescind the contract. In giving my opinion on that case,
“I said, that ‘the property in the goods was apparently divested out of
“‘ the plaintiffs at the time of the sale, according to the opinion which
# 466
“ the parties then had of the transaction;' but though the property
* was then apparently divested out of the vendors, it was not so in
“reality, because the delivery to the agent of the vendee was control-
“ed by the prior orders of the bankrupt, his principal. But in this
“ case the goods were delivered to, and accepted by the vendee, and
“ the property remained in him until he became insolvent. What
“ was said by Lord Hardwicke, in the case alluded to, does not ap-
“ply to such a case as the present: he only said, that, ‘before the
“‘ contract was complete, and while the goods were in transitu, the
“‘owner might by any means, without committing a felony, regain
“‘the possession of his goods for which he had not paid. That,
“‘though said in a court of equity, is now become a general and a good
“‘rule of law; but it must be confined to those cases where the goods
“‘ in transitu. Our decision therefore against the defendant in this
“‘ case will be conformable to every decided case, and to the reason
“ of the thing.’” -
Ashhurst, J. said, “It was admitted in the argument, that if the
“ contract of sale were not rescinded at the time of the bankruptcy of
“the vendee, it could not be rescinded afterwards by any act of the
“ contracting parties; now I think that the contract here was not re-
“scinded before the insolvency of the vendee. After the contract
“ for the sale of the iron, it was actually delivered to the vendee, and
“put into his cellar, and he gave a bill of exchange for the payment
“ of it; then the contract was complete, and could not be rescinded
“by any subsequent act of the parties, so as to affect the interests of
“third persons. But it has been said that this iron was not mixed
“with the rest of the bankrupt’s stock: it is not necessary that it
412.
of Bankrupts and their Assignees. [Pax II,
* 467
** -? …
Pull. 283.
* 458
“should be mixed; but if it were, this iron was, to a certain degree,
“mixed with the rest of the stock, for there was some other iron in
“the same cellar, I do not rely, however, on that circumstance, be-
“cause I think it immaterial ; for if once the goods be fairly and
“ completely delivered, whether they be or be not mixed with the rest
“ of the vendee's stock, the bankrupt and the vendor *cannot rescind
“ the contract, if the rights of other persons intervene, with a view of
“giving a preference to the vendor.” - a . :
So, where the acceptor of a bill of exchange, two days before it be-
came due, called upon the holder and informed him privately that he
was insolvent; the holder insisted on being paid the amount of the
bill, whereupon the acceptor paid it, and four days afterwards became
bankrupt: the bill was altered, (but without the defendant’s know-
ledge,) so as to make it fall due before this transaction: this was
held to be sufficient proof of fraudulent preference,
Thus, in the case of Singleton and others, assignees of Howell v.
(º) e Bos, and Butler,(v) which was an action of assumpsit for money had and re- ..
ceived. At the trial before Lord Eldon, Ch. J. at Guildhall, at the
sittings after Trinity term, 40 Geo.III. the following case was prov-
ed: The defendant having drawn a bill of exchange on Howell, the
bankrupt, dated the 1st of March, 1796, payable to his own order .
three months after date, it was accepted by Howell, and indorsed by
the defendant to his bankers. On the 2d of June, which was two
days before the bill would become due, as it was originally drawn,
Howell came to the defendant, and told him, that in consequence of
several houses having failed, he had lost large sums of money, and his
bills had been returned upon him, and he informed the defendant as his
friend, (but informed no other person thereof) that his affairs were bad
and would not pay above 10s. in the pound. Upon this the defendant
said that Howell must pay his bill, and that if he would, he, the de-
fendant, would be security to Howell’s creditors for so much as the
estate should produce, if they agreed to a composition. Howell ac-
cordingly paid the bill, and on the 5th of June became bankrupt. It
also appeared that the date of the bill had been altered from the 1st
to the 21st of March, and that the time of payment had been altered
from three months after date to two months after date. There was
no evidence, however, to show by whom this alteration was made, or
that the defendant had any knowledge of it, but the circumstances of
the case rather afforded a presumption that he did not. His Lord-
ship observed to the jury, that this was a bargain for a fraudulent preſ-
erence, the consideration of which was of no value; that the circum-
stance of the bankrupt having called upon the defendant two days
before the bill became due, and after disclosing his situation, *having
acceded to the defendant’s offer, afforded strong ground for them to .
Ghar. X.] 9f Bankrupts and their flesignees. 413
infer fraud, and that the inference of fraud, as far as related to the
bankrupt, was rather strengthened by the alteration which had taken
place in the date and time of payment of the bill. The jury found a
verdict for the plaintiffs for the amount of the money received by the
defendant on the bill. -
In the following term the counsel for the defendant moved for a
new trial, and it was contended that the preference given to the de-
fendant was not voluntary, inasmuch as the defendant had insisted on
having the bill paid, and that it was not necessary there should be any
threats of legal process to rebut the presumption of fraudulent pre-
ference. He cited Smith v. Payne,(*) where a security given to a
creditor by a debtor at the mere instance of the former, but without
any threats of an arrest, was held valid, though the debtor himself in-
formed the creditor of the bad situation of his affairs. Lord Eldon,
Ch. J. having stated the case to the court with his direction thereup-
on, declared himself of the same opinion which he gave at the trial,
and distinguished this from the case of Smith v. Payne, because there
the creditor came to the debtor, and the security was taken for a debt
actually due. - - -
The rest of the court concurring with his Lordship, the rule for a
new trial was refused.
But if a bankrupt make a payment to a creditor under the appre-
hension of legal process, however groundless, such preference is va-
lid. * . . . . . ... * * : , , -
Thus, in the case of Thompson and others, assignees of Jane Wise-
man, v. Freeman,(u) which was an action of trover tried before Buller, (w) 1 Terms
J. at the sittings after Hilary term, 26 Geo. III. at Guildhall, and was itép. 155. See
brought by the assignees of the bankrupt in order to recover some i. *;
a • - • ~ orm v. Slod-
goods which the defendant had taken possession of under a warrant iºn, 2 Bos. &
of attorney to confess a judgment executed by the bankrupt about six full 58° S.
months before the act of bankruptcy committed, but at a time when ‘’
she knew she was in an insolvent state. -
The defendant had in the year 1780, joined in two bonds with the
bankrupt, and had received a counter bond of indemnity. *When these
bonds became due, the bankrupt, not having wherewithal to discharge # 469
them, applied again to the defendant, and engaged him to join with
her in two new, bonds, payable in July, 1784, for the purpose of rais-
ing money to take up one of the old bonds: one of them was ac-
cordingly taken up the 14th of January, 1784. The defendant
took another counter-bond of indemnity upon his joining in the two
last bonds. Previous to the 3d of June, 1785, the day on which the
act of bankruptcy happened, the bankrupt sent for the defendant,
and proposed to him that he should take out his debt in goods, to
which he acceded, and the warrant of attorney in question was given.
~~A*–
w -* z-F.
(*) Post. 470.
414
of Bankrupts and their Assignees. [PART iſ,
* 470
(w) 6 Term
Rep. 152.
It appeared that her reason for sending for the defendant originated
from a letter, taking notice, though not in a threatening manner, of
her situation with respect to the defendant, which letter she had re-
ceived just before from Messrs. Fosset and Bellamy, whom she knew
to have acted, in a former transaction, as attornies for the defendant,
though upon this occasion they were not in fact concerned for him.
The two last bonds were not discharged by the defendant till some
time after the execution, nor had the obligees ever threatened to re-
sort to him for payment at that time, the bonds not having then be:
come due. - - -
* Another circumstance was also much relied on for the plaintiffs at
the trial, that the defendant upon examination before the commission-
ers had sworn, that when he took possession of the goods under the
warrant of attorney, he was not an actual creditor. . -
The learned judge left it to the jury to consider whether the means
which the bankrupt put into the defendant’s hands to pay himself
were fraudulent or not; for if she had executed the warrant of at-
torney from necessity, or in order to save herself, though, perhaps,
acting by mistake, or under a false apprehension that the defendant
was taking due means to enforce his demands upon her, it was cer-
tainly a legal act ; but if she had acted merely with a view to favour
the defendant, and give him an unjust preference, it was void. The
jury found a verdict for the defendant. In the following term a mo-
tion was made for a new trial, which the court refused ; and Lord
Mansfield, Ch. J. said, “A bankrupt, when in contemplation of his
“bankruptcy, cannot by his voluntary act favour any one creditor ;
“but if under fear of legal process, he gives a preference, it is evi-
“dence that he *does not do it voluntarily. And though the defen-
“dant in this case had taken no steps to secure himself in case he
“was called upon, yet the bankrupt, acting from mistake, was under
“the same apprehensions of legal process, as if the defendant had ac-
“tually threatened her ; so that her executing the warrant of attor-
“ney was not a voluntary act, but the effect of fear, however ground-
“less that might be.” -
So, where a creditor, knowing his debtor to be in distressed cir-
cumstances, and not able to pay his debt, applied to him, in the first
instance, about two months before his bankruptcy, for a security, and
took part of his stock in trade for that purpose : this is not an undue
preference, though the creditor did not threaten to sue in case of a re-
fusal. -
Thus, in the case of Smith and another, assignees of Hamilton v.
Payne,(w) which was an action of trover ; and the question was,
whether the defendant had not obtained them from the bankrupt, upon
the eve of his bankruptcy by means of an undue preference given to
CHAP. X.] Of Bankrupts and their Jässignees. 415
him by the bankrupt. . It appeared that about April, 1798, the bank-
rupt, who was a bookseller, being indebted to the defendant in sev-
eral sums of money, amounting to about 385l. the latter happened ac-
cidentally to call upon him, when the bankrupt informed him that he
was afraid of being arrested, for that a person had been to demand
80l. which he owed, and was unable to pay : the defendant thereupon
told him that he was fearful he (the bankrupt) was in a bad state, as he
had repeatedly told him in like circumstances, but if he could get over
the day, he should do very well. The bankrupt expressing his fear of
being arrested, the defendant told him he would be ruined if he were,
as he would not he able to get bail : the defendant, however, went im-
mediately to a friend in the neighbourhood, and borrowed 80l. brought
it back to the bankrupt, and desired him to go and pay the debt directly.
Shortly after this transaction the defendant applied to the bankrupt,
and represented to him that he did not like to have the account unset-
tled, and so large a sum due to him, and desired to see what books he
could have out of the shop in order to cover his demand ; and admit-
ted that he did not ask for money, as he thought he could not get it.
The bankrupt showed him his catalogue; and “he selected the books # 471
in question at prime cost, being such as he thought the bankrupt could
best spare, withoutimpeding the carrying on of his business; of which
books the defendant was immediately put in possession. The de-
fendant further admitted that he took the books to save himself, and
that he would not have taken them, but that he was apprehensive he
could get no money, and therefore he had not asked for any ; that
he had taken about 58l. in notes, having taken this transaction, and
he admitted that he did not purchase the books in order to sell them
for the profit, but to cover his debt, as he was apprehensive of the
bankrupt’s circumstances, having often heard him complain of then.
The act of bankruptcy was committed on the fourth, and the com-
mission was sued out on the 6th of July, 1793. The bankrupt him-
self was examined as a witness at the trial, and he swore that the
transaction between him and the defendant was without fraud, and
that he did not meditate any act of bankruptcy at the time. Lord
Kenyon, Ch. J. at the trial, inclined to think that, upon the whole of
the case, it appeared that the offer of the security was voluntary on
the part of the bankrupt, and that the bad situation of his affairs was
known to the defendant at the time the latter accepted of it ; and
therefore he recommended the jury to find a verdict for the plain-
tiffs; they, however, found for the defendant.
The counsel for the plaintiff moved for a rule to show cause why
the verdict should not be set aside. But the court were of opinion,
that there was no undue preference in this case, and therefore re-
fused the rule.
A 16
Of Bankrupts and their Assignees. [fant H.
# 472
a) 2. Burr.
931. 1 Bl.
Rep. 193. S.
6% *
# 473
Lord Kenyon, Ch. J. said, “I confess that the impression which I
“received at the trial was unfavourable to the defendant; but the ju-
“ry thought differently ; and I see no reason, upon maturer conside-
“ration, to differ from the conclusion they have drawn. I think I
“laid too much stress upon the admission made by the defendant,
“that at the time he applied to the bankrupt he did not ask for money
“because he thought he could not get it; for in truth the same obser-
“vation may apply in many instances to creditors taking security in-
“stead of actual payment, for their debts. *This also shows that this
“was not a voluntary offer on the part of the bankrupt, but that the
“security was given in consequence of his being pressed by the de-
“fendant for that purpose, who was not disposed to trust him any
“longer. It is admitted that if the defendant had threatened the
“bankrupt in case of his refusal, the transaction would have been va-
“lid; but there is no occasion for a creditor under such circumstan-
“ces to threaten an actual arrest; and here the defendant did press
“ the bankrupt for a security. And under these circumstances the
“bankrupt himself having sworn to the honesty of the transaction,
* and that he did not meditate a bankruptcy at the time, and the ju-
“ry by their verdict having negatived the idea of collusion, there is
“no ground for setting aside the verdict.”
If goods are consigned by a bankrupt (previous to his bankruptcy)
to a factor who is fully acquainted with his insolvency : and upon
such consignment money is advanced by the factor ; this is not a
fraudulent consignment : and the factor is entitled (as against the as-
signees) to retain the produce of the goods in satisfaction of the gen-
eral balance due to him from the bankrupt.
Thus, in the case of Foweroft and others, assignees of William Sat-
terthwaite, a bankrupt, v. Devonshire and others.(a) which was an ac-
tion of assumpsit for money had and received to the use of the plain-
tiffs as assignees. The facts of this case being fully stated in the
judgment of the court, as pronounced by Lord Mansfield, Ch.J. it will
be unnecessary to state any thing more than what he said on this oc-
casion, which was as follows: “ This matter came before the court
“ upon a motion for a new trial, on the ground of a misdirection by
“ the judge who tried the cause. It was admitted at the trial, that
“Satterthwaite, the bankrupt was a trader; and the debt of the pe-
“titioning creditor, the commission, and the assignment, were likewise
“ all admitted. The action was brought for monies arising from the
“sale of goods that had been consigned by the bankrupt to the defend-
“ ants as factors for him, and sold by them as such which money was
“admitted to be in the defendants’ hands, and amounted to 5,314l.
“ 17s. 9 #d. It appeared that the defendants had paid several sums
“ of money, to Satterthwaite’s use, upon bills drawn upon them by him,
“ and otherwise. The plaintiffs (the assigness under the commission)
CHAP. X.] ©f Bankrupts and their Assignees.
417
“ proved some secret acts of bankruptcy to have been committed by
“Satterthwaite about Christmas, 1751 ; namely, his being denied to
“his creditors. On the other aside it was proved, that he soon ap-
“peared again public as usual ; and continued to do so till about the
“ month of August following, (1752) but in that month he stopped
“payment: and thereupon the commission was taken out. These
“secret acts of bankruptcy, committed at Christmas, 1751, overreach-
“ed the consignment of the goods, the receipt of the monies for which
“ they were sold, and likewise the time when the defendants advan-
“ ced the monies to the use and order of the bankrupt
“It was insisted by the counsel for the defendants, from the nature
“ of the present action, the defendants, being factors, ought to be al-
“lowed not only for their commission, and all charges and expenses,
“ but also whatever money they had paid on account of bills drawn
“upon them by Satterthwaite ; and that the plaintiffs in this action
“ could only recover the balance of the general account.
“The counsel for the plaintiffs admitted that the defendants were
“entitled to be allowed their commission, and all charges and expen-
“ses as factors; but not the bills of exchange drawn by Satterthwaite,
“ which they had paid subsequent to the act of bankruptcy.
“This question was agreed to be reserved, (if it should be neces-
“sary to have recourse to it) as a point for the future consideration
“ and determination of the judge who tried the cause. But the coun-
“sel for the plaintiffs insisted on a preliminary point; viz. that the
“defendants were guilty of a fraud, in paying these bills of exchange,
“drawn upon them by the bankrupt: which preliminary point of
“fraud was sufficient to destroy any right that the defendants might
“otherwise claim (supposing the transaction had not been fraudulent.)
“ to an allowance of the money paid in discharge of them ; and con-
“sequently to preclude them from entering at all into the question
“above mentioned. For if it should be “admitted on the part of the
“ plaintiffs, that this action of assumpsit affirmed the contract, yet if
“ their payment of the bills was fraudulent, it would at once put àIl
“ end to their claim of an allowance of the money as fraudulently
“paid. They granted that in case the defendants should appear not
“ to have been guilty of any fraud, but to have paid the bills fairly and
“honestly, they would then have a right to enter into the point
“reserved (as above) for future consideration: but they insisted that
“ upon supposition, that in a common case, this sort of action would
“ confirm the contract, so as to make the consignment, sale, and pay-
“ment of the bills to be considered as before any act of bankruptcy
“ committed; and consequently, that the defendants would be entitled
“to retain what they had paid upon the bills; (for every thing that
“ could be alleged by the defendants must, pro hac vice, be admitted
“ upon a previous bar to their going into the question;) yet the bar
“ of fraud would destroy any demand they could have upon that ac-
Wer. E. [53]
# 474
418
of Bankrupts and their 4ssignees. [PART fſ.
“ count. And the fraud which they charged upon the defendants was
“ this, that they were privy to Satterthwaite's insolvency, at the
“ time when they advanced the monies, to discharge his bills.”
“Upon this preliminary point only of fraud, it was left to the jury:
“ and upon this point only they found their verdict. Upon hearing
“ all the evidence, they were of opinion that the transaction was frau-
“dulent on the part of the defendants; and they gave a verdict for
“the plaintiffs for the whole money : deducting only the commission
“ due to the defendants, and the expenses of the sale of the goods.
“Though the ground of the verdict should be wrong, yet if it clear-
“ly appeared to us now, that upon the whole no injustice had been
“ done to the defendants; or if it clearly appeared to us now that the
“ plaintiffs by another form of action could recover all they have got
“ by this verdict, we think the court ought not to grant a new trial.
“But if injustice be done to the defendants by the present verdict,
“ and if it be not certain and clear that the plaintiffs might have equal
“ redress, and recover as much, by another form of action: then we
“ought to grant a new trial.
“Two points have been argued and urged on the part of the plain-
ce tiffs.
“*1st. That clearly the defendants were not to be allowed to
“ retain for the bills: because, 1st. They were not paid till after an
“act of bankruptcy; 2dly. This action of assumpsit, only admits
“ the sale of the goods, and nothing else but the agency of the de-
“ fendants in that single respect; and 3dly. If it admitted every thing
“so as to put the assignees in the very condition the bankrupt would
“have been, had he brought this action, yet a factor has no lien for
“ items of a general account (his lien being confined to his commis-
“sion and expenses about the particular goods.)
“These points have not been at all considered in this action; and
“therefore it is enough if they are doubtful. They went off, upon the
“preliminary question of the fraud being taken up and pursued, and
“were never afterwards taken into any further consideration at the
“ trial. - -
“We are not clear that this action of assumpsit does not affirm
“ the power of the bankrupt and the contract, throughout the whole
“transaction. Where such an action is brought by assignees of a
“bankrupt’s effects against a vendee of goods, it affirms the sale, and
“ also the payment to the bankrupt of any part of the price. It is
“ agreed here, that it admits the consequence of the defendants being
“factors; and allows a lien for commission and expenses.
“That a factor has also a lien upon goods consigned, whilst they
“ remain in his possession, for items of a general account with his
“principal, has been solemnly determined. However, the present case
“differs from the case of Kruger v. Wilcocks,(*) where it was so de-
4–3 *—tº
H
(*) Ante, 1 vol. 267.
£HAP. X.] of Bankrupts and their Assignees.
419
“ termined. For there the factor remained in possession of the goods;
“but here the goods have been sold, and turned into money. In such
“a case there never was a doubt but that mutual items of account
“might be set off; the demand and recovery can only be for the balance.
“Therefore it is impossible to say that the question the defendants
“would have made upon this point, had they been permitted, may
“not be very material. And if it might have been material to their
“ defence, they have a right to have it tried and considered.
“2dly. Another matter gone into at the trial, and urged by the
“ counsel for the plaintiffs, was, that in an action of trover, the plain-
“tiffs might certainly recover the value of the goods, without making
“any allowance.
“*This would depend on a variety of circumstances, which were
“not gone into at the trial because the counsel for the defendants
“were stopped and cut short by the preliminary bar of the fraud,
“which was alone sufficient to invalidate their claims as upon a fair
“transaction. This makes it necessary to examine the ground of
“ the verdict, which proceeded from the direction given. I will admit
“‘ that the evidence proved the fact, and every conclusion deducible
“‘ from it:” but I cannot think that the fact so proved, or conclusion
“so drawn, amounts to that offence which the law calls fraud to avoid
“ the debt. And in examining this matter, we must remember, that
“pro hac vice, the whole transaction is admitted to be before any act
“ of bankruptcy. Fraud often is a mere fact ; as when it depends
“ (as on a policy of insurance, for instance,) upon what the party said
“ or did : or it may be, and often is a question of law. Suppose a
“creditor, knowing a trader likely to break, conceals it from the
“knowledge of other creditors, till he gets, even by threats of legal
“process, payment of his debt before any direct act of bankruptcy;
“ and the assignees should insist this was a fraud, and that he should
“refund ; this is a matter of law; and the law would say, that this
“ was not fraudulent. Suppose a man bona fide, lends money to a
“trader upon a mortgage, after an act obankruptcy without notice;
“ and then Knowing of the commission of bankrupt and assignment,
“gets in an old term even for little or no consideration; and the as-
“signees bring an ejectment; and it becomes a question whether this
“be a fraud, or not; this is a matter of law; and the law will say,
“it is no fraud; for the mortgagee had a right to do this,
“The evidence of fraud in this case, as stated by the report, are
“the following letters. The first is dated, Bristal, 5th May, 1752,
“signed “Devonshire and Reeves,” and directed to William Satter-
“‘thwaite.” We wish you had been open, and told us in time how
“your affairs stood—it appears to us very evidently, you have risk-
“ed your reputation and credit on the faith of those S. Do but con-
“sider where you must have been in point of reputation, had we done
“qtherwise than we did. It is now over ; and we will not do any
# 476
426)
ef Bankrupts and their flesignees. [PART II.
# 477
# 478
“thing that should lessen your credit. Therefore ship not an ounce
“ of goods more till your affairs are settled.” - ;
“ The next letter is dated Bristol, 5th May, 1752, signed “Devon-
“‘shire and Reeves,’ and directed to William Satterthwaite, merchant
“*in Bristol ; and contains the following passage: “We cannot help
“being uneasy to think you have drawn on us again for 120l. Real-
“ly you will make us let your bills go back protested, in spite of our
“ inclinations. We will pay this ; but take notice, don’t draw anoth-
“ er: we friendly hint it.” - -- -
“The next letter is dated 25th June, 1752, signed and directed
“ as above; and is thus ; * William Satterthwaite, esteemed friend—
“We really fear these proceedings will greatly hurt your credit in
“ the eyes of every judicious person: it is very natural to think that
“ will be the consequence. For our part, we would make a thous-
“ and shifts, rather than trifle with our reputation, as you do with
“ yours. It’s a matter well worth your serious consideration.”
“P. S. Inclosed we return you Liebenrood’s draft, 150l., which
“with one shilling postage, place to our credit. This is such a thing
“we never did before, nor ever will again.”
“The next letter is dated 27th June, 1752, signed as before, and
“directed to William Satterthwaite. After referring to the last, it
“goes on thus.- In this last ketter, thee mentionest nothing of remit-
“ting for Liebenrood’s bill, which thee ordered us to send for from
“ London four days before due, (which we did, and returned thee in
“our last,) though thee promised us faithfully to remit for the same,
“last 6th day was a week; and having had sundry letters that take
“no notice thereabout, we cannot help thinking and saying that thee
“trifles with thy creditors and us. We are so much in want of mo-
“ney as thee canst possibly be ; and had we thought thee wouldest
“have treated us in this manner, we would not have advanced one
“quarter of the sum, to be allowed 10l. per cent. The disappoint-
“ment to us gives more uneasiness than all the profits of a year's
“ trade will do us.” -
“The next letter is dated 14th July, same year, and signed as be-
“fore, William Satterthwaite, and is as follows: “Esteemed friend,
“so much for your affairs, in and under our care; which shall be ma-
“naged with all care and frugality. But what next we say appears
“to us in a very odd light: for Edward Wilcoa has been with us
“ and says you have made over our goods on the Sarah and Martha.
“If true, gives us such ideas that we dare not put pen to paper to say
“our sentiments. If you send us any more bills—if ever we do
“return a bill we will return yours.” - -
“The next letter is the 28th July, the same year, signed as before
“ and is as follows—' William Satterthwaite, the Sarah and Martha,
“ your 3-8ths. The Carolina, how much P tell us; for "you must se-
“cure us, by a bill of sale of each, that is your parts-Unless you
GHAP. X.] of Bankrupts and their Assignees.
421
“send here, some security.—Say your father, Moss—join in a bond,
“ or some good man-Claimants will be made upon us, for their pro-
“ portions of cargoes we have sold; as Touchetts did of the rice,
“We are willing to stand by you as far as we can with prudence :
“but an undoubted counter security we must have—We dread the
“consequences of these repeated strokes, we very much suspect you
“ have not the money—We must have your affairs cleared up—
“Whatever you are, we are almost broken-hearted to see how you
“are going on, and have of late. And what will be the consequence,
“if you are worth 3,000l. P we know and have seen the consequence
“ elsewhere.” -
“Some vague suspicions beside, have been mentioned at the bar,
“by the counsel for the plaintiffs, as, that they were all of them
“Quakers, and endeavouring to play into each other’s hands, to the
“prejudice of Satterthwaite's other creditors: that Satterthwaite had
“broke before ; that all the bills were after May 3 (which the other
“side deny.)
“But as I proceed upon allowing the evidence to prove the con-
“clusions contended for, it is only necessary to examine what those
“conclusions are. The report says that a false credit was given the
“bankrupt ; i.e. he would have broke openly unless they had lent
“him money. The counsel for the plaintiffs say, the defendants lent
“him money to keep him from failing, till his ships and goods might
“ come home, consigned to themselves, or even to the bankrupt’s own
“hands: whereas if a commission had issued before that time, the as-
“signees would have had them.
“It was left to the jury, that if they believed from the evidence,
“ that the defendants knew or understood the bankrupt’s circumstan-
“ces to be insolvent at the time they paid his bills; they might find
“against them, upon the ground of fraud. And they found in the af-
“firmative.
“Had the question turned upon the validity of a payment made
“after an act of bankruptcy committed within the act of 19 Geo. II,
“ c. 32. (which was one of the points made at the trial,) the direction
“would have been quite agreeable to the terms of that act. But, as
“the question was, whether, supposing the whole transaction before
“any act of bankruptcy committed, the defendants were to be exclud-
“ed from claiming satisfaction for the money they had advanced upon
“Satterthwaite’s bills, by reason of their “fraud in advancing it.—
“‘We are all of opinion that the direction was a mistake.”
“It is no fraud, for a factor, knowing the circumstances of his prin-
“cipal to be desperate, and believing he must break unless he can
“procure credit, to advance money upon his bills to save him from an
“immediate failure. On the contrary, it is an honourable, friendly,
“ and generous act. No prejudice can arise, but to the lender him-
“self. He may lose the whole or the greatest part of the money so ad-
% 479
422
Of Bankrupts and their Assignees. [PART II,
# 480
“vanced ; but the principal's estate, ifhebreaks, is by so much againer;
“or some particular creditors to whom this money has been paid, are
“gainers. If by this assistance, the principal has the good luck to
“stand his ground, he and all his creditors are benefitted : but none
“ of his creditors can suffer by the advancement of money to their
“debtor. Many beneficial instances of this kind have saved the
“most considerable houses from ruin, If the factor trusts that effects
“of his principals will come over from abroad consigned to him, by
“which means he may acquire a lien upon them. for his reimburse-
“ment, the factor's conduct is a little more prudent: but still it is
“free from all colour of fraud. It is the usual method of dealing be-
“tween principals and factors in good credit; the latter advance mo-
“ney upon the faith of consignments; but when a factor, knowing his
“principal to be in great distress, and in immediate danger of failing,
“advances money upon the faith that effects beyond sea will come
“over consigned to him, he acts meritoriously. The richest man
“in trade may be ruined, while his effects are abroad, and not in his
“own power, to answer immediate demands upon him, (which was
“ the case of the Woodwards, who could not save themselves from
“failing: though they had sufficient to pay 30s. in the pound.) But the
“factor may actually save him by this assistance, till they come home:
“ and yet the factor himself runs a great risk, and trusts to a precari-
“ous security. For the goods may, in fact, be consigned originally
“to another ; or the consignment to him may be countermanded, they
“may be sold ; they may be mortgaged, or burnt, or lost, and nev-
“er come into his possession so as to give him any lien : and it; ap-
“ pears by the letters that have been read, that in this very case, Sat-
“terthwaite unworthily made over to other persons partof the goods to
“which the defendants had trusted for their security.
“*A mortgage of ships abroad, or of cargoes upon the high seas, by a
trader, to any body is good, notwithstanding the clause in 21 Jac. I.
c. 19. though possession has not been actually delivered : for a bill
of sale is all the possession that can be delivered, till the ship comes
home. w -
“There scarce happens a bankruptcy in which it does not appear
that a fictitious credit has been acquired by drawing and redrawing
bills of exchange, and by accepting and indorsing promissory notes :
yet there never was a doubt, but that the persons lending their name,
by which they render themselves at last liable, may come in as credi-
tors. The case of a man who has actually paid his money to support
the credit of another, is infinitely stronger than that of lending a
name only, without advancing any money at all. There cannot be
a greater paradox than that a man should be guilty of a fraud in lend-
ing his money with no other prospect but the chance of being repaid
it. A notion that lending money to traders, knowing them to be in
dubious, tottering, or distressed circumstances, upon mortgages or
Char. X.] of Bankrupts and their Assignees. - 423
liens, is fraudulent, and, consequently, the contract void in case a
bankruptcy ensues, would throw all mercantile dealing into an inex-
tricable confusion. Men lend money to traders upon mortgages or
consignment of goods; because they suspect their circumstances, and
will not run the risk of their general credit. Upon the whole of this
case we are of opinion that there must be a new trial.”
Where goods are sold, or money is paid by a bankrupt after an act
of bankruptcy, the assignees may maintain an action of assumpsit or
trover for the amount thereof.
Thus, in the case of Hussay v. Fiddall,(y) which was action of as- (y) 12 Mod.
sumpsit, brought by the assignee of a bankrupt for goods sold and de- : : *
livered by the bankrupt after an act of bankruptcy. It was objected Chitty, T
that the action should have been trover and not assumpsitbecause tro-Eurº; 30...?
ver might be brought for the same cause again. But Holt, Ch. J. *ē. 65.
said, “the assignees may avoid the sale if they will, *and bring tro- Hitchen...y.
“ver for the goods ; but if they bring the one, they shall not after $º º
“bring the other. By act of bankruptcy the property of the goods is B1. Rep. 827,
“ in the bankrupt's creditors; and if it be a chose in action that is as- * * # 481
“signed, the assignee is to have the same remedy for it as the bank-
“rupt himself might have had ; as if it be money received to the use
“ of bankrupt, they are to have such remedy as he might have had for
“ it; and without doubt the action well lies here, and even a gener-
“ al indebitatus assumpsit would have done.”
So, in the case of King, assignee of Langman v. Leith,(2) which (g) 2 Ternº
was an action of assumpsit for money had and received to the use of Rep. 141.
the plaintiff as assignee. The facts of the case were these : Lang-
man, the bankrupt, was arrested, on the 19th of January last at the
suit of the plaintiff, and he became a bankrupt by Iying two months
in prison, which expired on the 26th of March. On the 19th of Feb-
ruary the plaintiff’s attorney gave notice by a letter to the defendant,
(who had been employed by Langman about the latter end of January
as a broker to sell his effects,) not to sell them, because Langman had
committed an act of bankruptcy; that a commission of bankrupt
would shortly be issued against him, and that the act of bankruptcy
would relate to the day when it was committed, which was some time
past. The defendant in his anwswer to this, dated 23d of February,
said, that as he had advertised the sale, and begun to sell, and the
goods would not produce the sum for which Langman was in prison,
he had thought it better to complete the sale; and that he had sold
the effects without any design to defraud. On the first of March
the defendant paid Langman 120l. being the produce of the sale.
The defendant’s counsel objected, first, to the form of the action,
and that it should have been trover ; and secondly, that the sale and
payment were good, being before the act of bankruptcy was complete.
424
Öf Bankrupts and their flasignees. [PART II.
# 482
(a) Ante,
480. m. y.
# 483
But the court overruled these objections and gave judgment for
the plaintiff. . . . . . . . . . . . . . -
.Ashhurst, J. said, “Whatever doubt may have been formerly en-
“ tertained upon this question, it is now clear that the assignees of
“ the bankrupt have an election to bring either trover or assumpsit
“in a case like the present. The only distinction attempted to be
“*taken between this and other acts of bankruptcy is, that all the
“other acts of bankruptcy are complete in themselves, whereas this
“is a complicated matter, and is inchoate till the party has lain in
“prison two months; and therefore the act of bankruptcy is not com-
“ plete till the expiration of that time. But I do not think that makes
“any difference ; for as soon as the two months are expired, it re-
“lates back to the time of the first arrest, and then operates as if the
“arrest were a complete act of bankruptcy in itself. Then if the
“ act of bankruptcy overreach all intermediate acts so as to vest the
“ property in the assignees from the time of the act committed, it fol-
“lows as a necessary consequence that they may either affirm or dis-
“affirm the act of any party who, after the act of bankruptcy, has
“converted the trader’s effects into money, either by bringing an
“action for money had and received to their use, or by bringing tro-
“ver ; and here they have chosen the former. The statute of Geo.
“II, makes no difference ; that only provides that no payment shall
“be set aside which is bona fide made to the bankrupt in the com-
“mon course of trade : but this cannot be said to be a payment real-
“ly and bona fide made in the common course of trade, because the
“defendant had express notice of the bankrupt's situation. And
“ though, strictly speaking, at the time of the notice the act of bank-
“ruptcy was not complete, yet after that notice the defendant was
“not warranted in paying the money over to the bankrupt, and it
“cannot be called a bona fide payment.”
Buller, J. “With regard to the second point: whether this be
“considered on the construction of the bankrupt laws, or on the cas-
“es adjudged"I have not the smallest doubt but that the bankruptcy
“relates to the day on which the bankrupt was arrested ; and the
“court are bound to consider it so, and reason upon it as such. The
“other objection as to the form of the action seems to have been de-
“cided by the case of Hitchin v. Campbell,(a) which says, that the
“ assignees have their election to bring either trover or assumpsit.
“But without entering into the cases upon that subject, I should be
“ disposed to support the latter. For that is most beneficial to the
“ defendant; because in trover the plaintiff may recover the full va-
“ſue of the goods though the sale may not actually have produced
“ more than half their worth ; but in assumpsit the assignees are on-
“ly entitled to recover what the party really received, which *is on-
“ly what the sale of the goods produced. But even supposing there
“ had not been any other case upon this subject, there could be no
&AP. X.] Of Bankrupts and their Assignees.
“doubt in this case ; for the letter written by the defendant in an-
“swer to one from the plaintiff’s attorney is decisive that this action
“will lie. For, first, he had notice that the bankrupt was in insol-
“vent circumstances, that he was injail, and that the goods did not
“ come into his possession till after the arrest ; to which he returned
“for answer that as he had advertised and begun the sale, and the
“goods would not produce the sºn for which the bankrupt was in
“prison, he had thought it better to complete the sale, and that he
“ had sold the effects without any design to defraud. Now this is
“as much as if he had said, that it was most beneficial for him that
“ the goods should be sold, but that he would hold the money for
“ those who are really entitled to it.” -
So, in the case of Smith and another, assignees of R. Drake and
JEbenezer Goddard v. William Goddard,(b) which was an action of
assumpsit. The first count of the declaration stated, that the de-
fendant, before R. Drake and E. Goddard became bankrupts was
indebted to the said R. D. and E. G. for money had and received to
their use, and being so indebted, promised to pay, &c. The second
count stated, that after the bankruptcy of R. D. and E. G. the de-
fendant was indebted to the plaintiffs, as assignees for money had and
received to their use as such assignees, and being so indebted, prom-
ised to pay, &c. There was also a third count on an account stated
between the plaintiffs, as assignees, and the defendant. The defend-
ant pleaded non-assumpsit, and gave a notice of set-off. At the tri-
al before Lord Alvanley, Ch. J. it appeared that R. Drake and E.
Goddard carried on business in partnership; that E. G. committed
an act of bankruptcy, on the 8th of February, 1802, and R. D. on
the 17th of the same month in the same year; that a few days pre-
vious to the first act of bankruptcy, a large sum of money was paid
into the house on account of the defendant ; that between the 8th
and 17th of February several sums of money, amounting to 558l.
were paid to the defendant by a clerk of the house in consequence
(b) 3 Bosi &
Pull. 465:
of the former insisting on such payment, there being evidence to show
that he was acquainted with the insolvent situation of that house;
that on the 28th of February, 5l. more were paid to the defendant:
*that up to the 17th when R. D. became bankrupt, the balance of
accounts between the partnership and the defendant continued to be
in favour of the latter, and that the trade continued to be carried on
by the bankrupts till the 15th of March. The plaintiffs were assign-
ees under a joint commission against R. Drake and E. Goddard.
The counsel for the defendant inade two objections; first, that
neither of the counts in the declaration was so framed as to entitle the
plaintiffs to recover, because the money being paid to the defendant
after the act of bankruptcy committed by E. Goddard, but prev-
ious to that committed by R. Drake, the defendant was not indebted
Yek. I. [54] '.
# 48#.
426
of Bankrupts and their Assignees. [PART iſ,
* 485
(c) 2 Term
Rep. 113.
to the partners before their bankruptcy, as alleged in the first count,
nor to the assignees after the bankruptcy of both, as alleged in the
second count, for R. Drake being solvent when the money was paid
to the defendant, it was money received by the defendant to the use
of the plaintiffs, as assignees of E. Goddard and to the use of R.
Drake. Secondly, that as the balance, when R. Drake became bank-
rupt, was in favour of the defendant, the assignees could not recover
on any demand prior to R. Drake's bankruptcy, since the 5 Geo. II.
c. 30. s. 28. directs the assignees to strike a balance when there have
been mutual debts or credits, and that balance must be taken at the
time when both partners become bankrupts, and that at all events,
therefore, the defendant must be allowed the money received by the
bankrupts on his account, before the bankruptcy of either.
The court determined that the declaration did not embrace the
whole cause of action ; and that the plaintiffs could only recover the
sum of five pounds thereon.
Lord Alvanley, Ch. J. delivered the opinion of the court as follows:
“This is an action for money had and received, brought by the plain-
“ tiffs as assignees of two persons in partnership, and the money in
“ dispute was paid by the person who acted as clerk in the partner-
“ ship concerns after an act of bankruptcy committed by one of the
“ persons, but before an act of bankruptcy committed by the other.
“With respect to the 51, paid after the bankruptcy of both, the plain-
“tiffs are clearly entitled to a verdict for that sum ; and the only ques-
“tion webave to decideis,whether the assignees can recover the money in
“dispute under a count for money had and received to the use of the
“ plaintiffs, as assignees of both parties : We are of opinion, that in
“this case it is not possible to contend *with success, that the plain-
“tiffs ought to recover in the way in which they have declared. No
“ doubt the plaintiffs are joint assignees of both the partners, and as
“such they might have sued for money had and received to the use of
“each ; and if there had been a count for money had and received to
“the use of the plaintiffs as assignees of the partner who had com-
“mitted an act of bankruptcy at the time the money was paid, they
“might perhaps have recovered one moiety. On this, however, we
“do not mean to give an opinion. It is clear that after the bankrupt-
“cy of Goddard, the clerk was the agent of such persons as should
“be chosen assignees of his estate, as well as of Drake, who was then
“absent. But we think that upon the present declaration there is no
“pretence for saying that the plaintiffs ought to recover.”
So, in the case of Vernon and others assignees of Elizabeth Tyler,
a bankrupt, v. Hankey and others,(c) it was held that bankers are lia-
ble for money paid upon the drafts of a bankrupt out of cash in their
CHAP. X.] of Bankrupts and their Assignees.
427
hands belonging to the bankrupt, after notice of an act of bankruptcy
committed by him. .
But where the assignees of a bankrupt have recovered (by a judg-
ment) from the bankers, the money which they had so wrongfully
paid over, they cannot recover the same sum from the creditor, though
he received it after notice of the bankruptcy ; the assignees having
refused to permit the bankers to set off this payment in the action
brought against them, > -t.
Thus, in the case of Vernon and others assignees of Elizabeth Ty-
ler, a bankrupt, v. Hanson,(d) which was also an action of assumpsit (d) Ibid. 287.
for money had and received. The facts were these : the defendant had
received 1,090l. being the amount of a draft drawn in his favour for a
bona fide debt by the bankrupt on Messrs. Hankeys, her bankers,
which money was received by the defendant after notice of the bank-
ruptcy. In the case above referred to, the plaintiffs had recovered a
large sum against the Hankeys for money belonging to the bankrupt
received by them, in which action they attempted to set off this as
well as several other sums which they had paid on the bankrupt’s
account: but “it appearing that they had paid those sums with full
knowledge of the bankruptcy, the set-off was disallowed.
The court were of opinion that the plaintiffs having once recovered
this sum from the Messrs. Hankeys, they could not recover it a secs
ond time against the defendant, &
.#shhurst, J. said, “It is admitted very properly, that the plaintiffs
“cannot affirm and disaffirm the same transaction : then try this quess
“tion by that test. This was no specific money of the bankrupt paid
“to the defendant; it was only a payment in the common course of
“business by her bankers who had, prior to that, received large sums
“ of money belonging to the bankrupt : The plaintiffs first brought
“an action against the bankers for all the money reeeived by them
“on the bankrupt’s account, against which demand they offered to
“set off this as well as several other sums which they had paid on ac-
“count of the bankrupt ; to this the assignees objected, insisting,
“ that those payments were made with their own money, and not with
“that of the bankrupt. But in the present action they say it was a
“payment with the money of the bankrupt; and the defendant hav-
“ing received it with knowledge of the bankruptcy, they insist that they
“have a right to recover it back. It has not been attempted to be dis-
“puted but that the defendant was a bona fide creditor of the bank-
“rupt; and a payment by her to him, although with notice of the
“bankruptcy, would have been good as against all persens but the
“general creditors. If therefore he do no injury to the creditors he
“does not hold it against conscience. The bankrupt's estate has
“not been injured at all by this payment; for the assignees have al-
# 486
€f Bankrupts and their ºffssignees, [PART II.
# 48?
(e) 7 East's
Rep. 164,
“ready received this sum from the Hankeys, then they say that they
“have a right to bring this action against the defendant, because
“otherwise the Hankeys cannot recover it back. But the Hankeys
“paid this sum, knowing of the bankruptcy, and perhaps have no right
“to recover it back. But this is immaterial as far as it respects the
“assignees; they are now interposing between two creditors in a
“case in which the general body of creditors have no concern.”
So, where a policy broker pays a sum of money of his own on ac-
count of his principal, a bankrupt, to a trader who held certain poli-
cies of assurance of the bankrupt, which had been delivered to him.
after a secret act of bankruptcy in satisfaction of a just debt, the as-
signees cannot recover the money so paid, though the broker *in set-
tling his account with the assignees, retained the amount of the mon-
ey paid, -
Thus, in the case of Hovil and others, assignees of Wardell, a bank-
rupt, v. Pack and another,(e) which was an action of assumpsit for
money had and received by the defendants, to the use of the plaintiffs,
as assignees of Wardell, a bankrupt. At the trial a verdict was
found for the piaintiffs for 230l. subject to the opinion of the court of
King’s Bench on the following case.
In November, 1802, PPardell, being a trader, indorsed abill of exchange
which would become due on the 8th of February, 1803, and which
in December, 1802, was indorsed over to the defendants for a valuable
consideration. On the 27th January, 1803, Wardell sailed in a ship,
of which he was the sole owner, with a cargo for the West-Indies, hav-
ing only a few days before committed a secret act of bankruptcy.
The bill was refused payment when due, and notice thereof given to
the proper parties. In July 1803, the bankrupt’s wife caused insur-
ances to the amount of 3,400l. on the ship and cargo to be effected for
the bankrupt by Mr. De Beaume, a policy broker residing in London,
and who delivered them to Mrs. Wardell, without being paid the pre-
miums. Mrs. Wardell soon afterwards applied to the defendants,
whose debt was still unpaid, and who had brought an action against
the drawer of the bill above mentioned, and obtained judgment by
confession in such action, to take another bill for payment of the
amount of the first, which she indorsed as attorney for her husband,
and to stay execution, until such second bill should become due : and
as an inducement to them to do so, offered to deposit the policies
with them as a security for the payment of such second bill. This
the defendants agreed to and the policies were accordingly deposited
with them. In July, 1803, the ship and cargo were captured by the
French. On receiving intelligence of the capture, Mrs. Wardell
applied to the defendants to deliver up the policies, for the purpose
of receiving the amount of the subscription ; but they refusing to do
CHAP. X.] Of Bankrupts and their Assignees.
429
this without security for the payment of their debt, (the second bill
having also been dishonoured.) De Beaume, at her request, accepted a
bill of exchange at one month for 230l. the amount of the defendant's
debt; and the policies upon this were, at *the request of Mrs. War-
dell delivered up to him. This bill was regularly paid, when due by
Mr. De Beaume, who had received the amount of the policies of in-
surance from the underwriters. The bankrupt returned to England
in February, 1804; and on the 9th of Mareh following a commission
of bankrupt was issued against him, under which the plaintiffs were
chosen assignees, and an assignment to them was regularly execut-
ed. De Beaume retained from the plaintiffs as assignees, out of the
monies he had collected on the policies, the amount of the payment
he had made to the defendants. Wardell had been a bankrupt
twice before, once in the year 1786, and again 1788, and had ob-
tained his certificate under each of those commissions, but had not paid
a dividend of 158. in the pound under the last, and his creditors at that
time still remained unsatisfied. The question for the opinion of the
court was, whether the plaintiffs were entitled to recover ? The court
were of opinion that the plaintiffs were not entitled to recover. And
Lord Ellenborough, Ch. J. said, “If you adopt De Beaume as your
“agent on your own behalf, you must adopt him throughout, and
“take his agency cum onere. Your action, if any, must be against De
“ Beaume ; but it is impossible you can follow the money into the
“ hands of the defendant, to whom it has been paid by your adopted
“ agent. If this could be done, by the same rule you might follow it
“still further through other hands. But if the defendants had paid
“it over to another, could you pretend to have the same right to fol-
“low it º’’ - - -
Lawrence, J. “The facts are, that the defendants having a de-
“mand upon the bankrupt upon a certain bill, his wife prevailed up-
“ on him to give it up, and to take another bill for the amount, and de-
“ posited the policies of insurance, which she had procured from De
“ Beaume, in their hands as a security. . When she applied to them
“ to deliver up the policies, for the purpose of obtaining payment from
“ the underwriters, they refused unless upon receiving security for
“the payment of their debt. This security was given by De Beaume's
“ acceptance, which he afterward paid : the money therefore, which
“ the defendants have received, and for which the assignees of the
“bankrupt have brought this action, was the money of De Beaume,
“ and not of the bankrupt; and therefore the assignees can have no
“ title to recover it.” - - -
Le Blanc, J. “De Beaume must have paid his acceptance to *the
“ defendants, whether he had ever received the amount of the loss on
“ the policies from the underwriters or not. The payment was
“ therefore made by him out of his own money.”
# 488
# 489
430
Of Bankrupts and their flasignees. [PART II,
(f) Nightin-
gal. v. Devis-
me, 5 Burr.
2589. See al-
so Jones v.
Brinley, 1
East's Rep. 1.
(g) 5 Term
Rep. 133.
# 490
So, an action for money had and received will not lie at the suit
of assignees to recover the value of India stock retransferred by a
trader after his bankruptcy to a person who entrusted him with it for
the purpose of voting.(f) For it is a new species of property aris-
en within a few years, it is not money; perhaps an action might be
framed so as to come at the justice of the case, but an action for mon-
ey had and received will not lie in this case where no money was re-
ceived, -
If the assignees sue upon a contract made by a bankrupt before
his bankruptcy, they are bound by all the conditions annexed to it.
Thus, in the case of Dobson and another, assignees of Patrick,
v. Lockhart,(g) which was an action of assumpsit, for goods sold and
delivered by the bankrupt, before his bankruptcy, to the defendant.
It appeared that on the 11th October, 1788, the bankrupt and the
defendant became bound to S. Nicholson and two other persons, in
900l. conditioned to pay 450l. with lawful interest on demand ; that
on the 16th May, 1789, the bankrupt, one Foster, and the defendant,
became bound to J. Wakefield and two other persons in 1,000l. condi-
tioned to pay 500l. on interest, on the 1st of June, 1789; that those
two bonds were executed by the defendant as a surety for the bank-
rupt, and for his debt only ; that before the bankruptcy of Patrick,
viz. on the 21st of May, 1789, it was agreed between the defendant
and the bankrupt, that in order to indemnify the defendant against
these two bonds, the latter should become bound to the former in
1,400l. conditioned to pay 700l. with interest on the 13th of Febru-
ary, 1790, and as a further indemnity, that the defendant should re-
tain and keep such money, not exceeding the money to be secured by
the last bond, as should at any time be due from G. L. and the defen-
dant to the bankrupt in respeet of any dealings between them in
trade, until the two first bonds should be satisfied, and that the de-
fendant should, out of the money which should be due from G. L. and
himself to the bankrupt, retain and set off so *much money, not ex-
ceeding the last bond, as he should at any time pay on the two first
bonds.
The court held that the assignees were bound by this agreement,
and gave judgment for the defendant.
Lord Kenyon, Ch.J. said, “This is an action for goods sold and de-
“livered by the bankrupt to the defendant; and the question is,
“whether the plaintiffs, who are the assignees of the bankrupt, have
“a right under all the circumstances of the case, to exact payment
“for the goods. The defendant had various transactions with the
“bankrupt; among others, he became security for him in two several
“ sums of money; and at the time of becoming such security the
GHAP. X.] Of Bankrupts and their Assignees.
43}
“ latter engaged that the defendant should not be called upon to pay
“ for the goods until he was indemnified against those bonds. That
“ agreement having been proved, I see no objection to it in point of
“ law; I think it is a good defence to this action under the general
“ issue, and that the defendant need not have pleaded it specially.
“The consequence is, that the plaintiffs have brought this action to
“ enforce payment of a sum of money which the defendant is not
“bound either in law or conscience to pay under these cireumstan-
64 ces.”
•r 1–– -
9. Of an action at Law by Assignees, for money or goods of a bank-
rupt attached, in a Foreign Country by a Creditor residing in
England, after notice of the Assignment, &c.
If a creditor, residing in England, with full knowledge of the
bankruptcy of the debtor, attach money of the bankrupt's abroad, the
assignees may recover it back by action of assumpsit for money had
and received.
Thus, in the case of Hunter and others, assignees of Blanchard and
Lewis, bankrupts, v. Potts,(h) which was an action of assumpsit for §
money had and received, to which the defendant pleaded the general
issue. On the trial a special verdict was found, which after setting S. P.
forth the formal parts, (namely, the trading, the petitioning creditor's
debt, the bankruptcy, the commission and assignment,) stated, that
the bankrupts before their bankruptcy, were indebted to the defendant
on a contract made *in England ; at which time, and also at the time
of the bankruptcy, and until the assigning of the attachment hereafter
mentioned, all the parties were resident in England ; that after the
issuing of the commission of bankrupt and the making the assignment,
the defendant, knowing thereof, gave orders tohisattorney, in Rhode-
Island, North ºffmerica, to attach the effects of the bankrupts in that
island, in consequence of which the attorney in May, 1785 attached
in the regular way, certain monies in the hands of J. and W. Russell,
which were due from them to the bankrupts at the time of the bank-
ruptcy; and in November, 1786, obtained in the Court of Common
Pleas in Rhode-Island, a regular judgment against the bankrupts for
496l.128.9a, and costs; which sum he afterwards received, and remit-
ted to the defendant in England, who claims to hold the same to his
own use. The verdict also stated that the proceedings of the Court
in Rhode-Island were continued by imparlances from May, 1785 to
Movember, 1786 at the request of the Russells, in order that the bank-
rupts might have notice of such proceeding.
4 Termi
p. 182. 2
Bi. 402.
# 491
432 of Bankrupts and their designees. EPART II.
ford Kenyon, Ch.J. delivered the opinion of the court in favour of
the plaintiffs. He said, “In the argument on this case many quota-
“tions were made from the writers on the civil law, which it is not
“necessary to consider in determining this question. Generally
“speaking, it must be admitted that personal property must be go-
“verned by the laws of that country where the owner is domiciled.
“Neither do we mean to break through the rule that the courts of one
“ country ought to pay a proper deference to the decisions of the
“courts in another, having competent jurisdiction, where the facts on
“ which the decision was made were fairly disclosed to such court.
“But the general question here is whether the assignment, which
“ was executed by the commissioners of the bankrupt was sufficient
“ to vest the bankrupt’s property in the plantations abroad, in the as-
“signees under the commission; because if it did so vest at the time
“ of the assignment, it is immaterial to consider in this case how far
“ the relation under the bankrupt laws should take effect in Rhode-Isl.
“ and, since the assignment was executed anterior to the time when the
“ attachment suit was there commenced. Therefore the only ques-
“tion here is whether or not the property in that island passed by the
“ assignment, in the same manner as if the owner (the bankrupt) had
“ assigned it by his voluntary act. And that it does so pass cannot
# 492 “ be doubted, unless there were some “positive law of that country
“ to prevent it. Every person having property in a foreign country,
“may dispose of it in this: though indeed if there be a law in that
“ country directing a particular mode of conveyance, that must be
“ adopted; but in this case no law of that kind is stated, and we
“cannot conjecture that it was not competent to the bankrupt himself,
“ prior to the bankruptcy, to have disposed of his property as he
“pleased. Now the bankrupt statutes have expressly enacted that
“ the commissioners may assign all the property of the bankrupt in
“ the most extensive words; and therefore on the general reason of
“the thing, if there be no positive decision to the contrary, no doubt
“ could be entertained but that, by the laws of this country, uncon-
“tradicted by the laws of any other country where personal proper-
“ty may happen to be, the commissioners of a bankrupt may dispose
“ of the personal property of a bankrupt resident here, though such
“property be in a foreign country.” Judgment was accordingly giv-
en for the plaintiffs.
r & - So, in the case of Sill and others v. Worswick,(i) it was determin-
(i) 1 H. B1. § tº - -
665. ed, that if after an act of bankruptcy committed, but before an as-
signment, a creditor of the bankrupt makes an affidavit of debt in
England, by virtue of which he attaches, and receives, after the as-
signment, money due to the bankrupt in the West-Indies, the as-
signees may recover it back in an action for money had and received,
***
Shar. x.] of Bankrupts and their Assignees: 453
io. In what cases the Assignees of a Bankrupt are liable to an action
of Assumpsit for Rent, and for Money had and received, &c.
i ... } - $ -
Assignees māy either affirm or disaffirm the contract of a bank- . . ;
rupt.(k) If they affirm it, they must be bound by the transaction in (º) Per Lord
the same manner as the bankrupt himself would have been. But if fºr."
they disaffirm the contract they are not liable to be charged, though 217.
it come to them by the general assignment: therefore the assignees
are not liable to be charged for rent of premises assigned to them, un- ... . * I
(l) Bourdilon.
less they take possession.(1) v. Dalton and
t - : $3 * $ * sº s ! . . others,. r
*So, where a tenant from year to year of a house at à yearly º
tent becomes a bankrupt in the middle of the year, and his assignees % 493
enter and keep possession for the remainder of the year, the lessor
tannot maintain an action for üse and occupation against the assign-
êes for the bankrupt’s occupation as well as their own, without prov-
ing their special instance and request for the bankrupt to occupy dur-
ing the time that elapsed before the bankruptcy.
, Thus, in the case of Naisi v. Tatlock and others, assignees of Lid. . . . . . .
Hard, a bankrupt,(m) which was an action of assumpsit for use and (m).2 H. Bl,
becupation. Upon the trial a verdict passed for the plaintiff, subject *.
to the opinion of the Court of Common Pleas, on the matter of law 206.)
#rising upon the facts found by the jury, considered with reference
to the declaration as follows: “It was stated in the first count of the
“declaration, that the defendants were indebted to the plaintiff, in
* seventy pounds, for the use and occupation of certain apartments in
“his house, before that time rised, occupied, possessed, and enjoyed,
* as well by one Thomas Lidiard, whose term and estate therein the
‘. defendants afterwards had, as by the defendants, at their special in-
“stance and request, for one year then elapsed, from and under and
“as tenants thereof respectively to the plaintiff, and by her permis-
“sion; and being so indebted they promised to pay. The second
* count was upon a quantum meruit, in consideration that the plain-
“tiff at the like special instance and request of the defendants had
“permitted the said Thomas Lidiard, whose estate, term and inter-
“est the defendants had, as well as thé defendants themselves res-
“pectively, to have, use and occupy the same apartments, and that
* Lidiard and the defendants respectively had accordingly had, used,
“ and occupied, the same for a year, by su ch permission of the plain-
“tiff. The material facts of the case were that after Lidiard had
* occupied those apartments, for a certain part of the year, under an
* agreement to pay seventy pounds a year for them, he became &
Wor, H. F55] ,
434
of Bankrupts and their Assignees. [PART II.
* 494
%. 495
tº bankrupt, and the defendants, who were his assignees, then entered
“into possession and continied in the occupation of them for the rest
“ of the year, and that after the expiration of the year, Mr. Tatlock,
“one of the defendants, wrote the following note to Mr. Ward, the
“solicitor for the commission of bankrupt against Lidiard; ‘Mr.
“‘Tatlock’s respectful compliments to Mr. Ward, the bearer is a
“‘‘Mrs. Naish, a widow lady, whom Mr. Lidiard rented his house
“‘in flustin Friars of; there is due to her for rent fifty pounds, we
“‘having paid her twenty pounds since the commission; there is al-
“‘so five pounds fifteen shillings and six-pence for coals, likewise
“‘for our use since the commission; now I wish you to give an or-
“‘der upon Mr. Tatlock for the above, as we certainly are bound to
“‘pay her. London, 20th July, 1792.’ This paper was delivered
“ to Mrs. Waish, the plaintiff, by Tatlock, to be delivered to Ward;
“ and it was delivered ; but some dispute arising, the fifty pounds
“were not paid, in consequence of which this action was brought, and
“ then a proportion of the annual rent of seventy pounds, for that part
“of the year, during which the defendants were in the occupation of
“ the premises, was paid into court. Upon this state of facts, it was
“ insisted on the part of the defendants, that the plaintiff had not
“proved her case stated in the declaration. The question was saved
“for the opinion of the court, after it had been left to the jury to say
“ distinctly, whether the agreement was or was not to pay the rent
“ annually, which they found in the affirmative; and whether the sev-
“enty pounds mentioned in the note of the 20th July, 1792, was the
“ year’s rent, or was a sum which the defendants had agreed to pay
“ for their own occupation; as to which the jury found, that it was
“ the rent for the whole year, including the time of Lidiard’s occupa-
* tion.” - * 3: " .. -
The court determined, that the evidence on the part of the plain-
tiff was not sufficient to maintain the action. -
Lord Ch. J. Eyre said, “It is stated in both the counts of the
“ declaration, that plaintiff’s demand is founded upon a use and occu-
“ pation by Lidiard for a part of the year, and by the defendants for
“ the residue of the year, both occupations being had by the permis-
“sion of the plaintiff, at the special instance and request of the defend-
* ants. These latter words, often mere words of form, are here words
“ of substance and operative, connecting the occupation of the defend-
“ ants for which they are bound to make a satisfaction, with the occu-
“pation of Lidiard, a stranger, for whose occupation, prima facie at
“ least, the defendants were not bound to make a satisfaction. In
“ point of fact it was not at the request of the defendants that Zidiard
“ was permitted to occupy ; the defendants had no relation to Lid-
“iard but as his assignees ; and that relation did not commence till
“ the close of his occupation ; that relation therefore alone could not
* have the effect of making them personally liable “to answer for his
CHAP. X.] Of Bankrupts and their flasignees,
“ occupation before his bankruptcy. The averment that he had been
“permitted to occupy at the request of the defendants, is therefore
“substance, and not mere form, and a failure in the proof of it is fa-
“tal. , The framer of this declaration seems to have been aware of
* this difficulty and to have endeavoured to obviate it by throwing
“into the declaration the words ‘whose term and estate therein” in
tº the first count, and the words ‘whose estate, term and interest” in
“ the second, the defendants had. This very loose and general aver-
‘s ment seems to have been calculated to facilitate the passage of the
* other averment, of the defendants’ request through the cause at
“ Nisi Prius, and if it had passed smoothly there, would probably have
“ been the averment which would have been relied upon after a ver-
* dict, and this last would have been discarded. Loose, informal
“ and indistinct as it is, it might serve to introduce at the trial, that
“Lidiard was a tenant for a year at a rent of seventy pounds, pay-
“able at the end of the year, and that the assignees having enter-
“ed into possession as assignees, entered under that demise, and be-
“ came assignees of the lease, and bound to pay the rent which be-
“ came due after the assignment. It might then be with great col-
“ our urged, that rent due is recoverable in an action for use and oc-
“cupation, and if the rent is really due, the manner of stating the
“ use and occupation seems to have more form than substance in it,
“I was for a time inclined so to consider the case, but upon further
“ consideration of the nature of the action on the case for use and oc-
“cupation, and of the scope and purview of the staute 11 Geo. II. c.
“ 19, we are of opinion, that the circumstances under which the de-
“fendants succeeded to the occupation of the premises, will not prove
“ or dispense with the proof, that Lidiard's occupation was at the re-
“quest of the defendants. The action for use and occupation, is in
“its own nature collateral to the action on a contract for rent upon
“ a demise, and it was so holden in the case of Johnson v. May, 3 Lev .
“150. : if the defendant did in fact use and occupy by the permis-
“sion of the plaintiff, and had expressly promised to pay, though the
“ plaintiff had no title, or perhaps an equitable title only, the action
( ; lay. . * * - k. - *
“ Under the statute a landlord, who has rent owing to him, is allow-
“ed to recover, not the rent, but an equivalent for the rent, a reason-
“able satisfaction for the use and occupation of the premises, which
“have been holden and enjoyed under the demise, by the action for
“ the use and occupation ; and it is provided on his behalf, that if the
“ demise be produced against him, it should not defeat his action, as
“it would have done before the statute, but *the fixed rent shall on-
“ly be used as a medium, by which the uncertain damages to be recov-
“ered in this form of action shall beliquidated, What is given by this
“statute P A reasonable satisfaction for the use and occupation is the
“thing intended to be given ; the form of action marked out (being en-
# 496
of Bankrupts and their Assignees. [PART Ił.
(n) Willes'
£ep. 400.
See asso
Zint k vs
Walker, 2 Pl.
Rep. 1154, S.
P. - : *
§ 497
“larged by a necessary construction so as to be allowed to be maintainſ
“ed without an express promise) is the properform in which such rea:
“sonable satisfaction is to be recovered ; but the reasonable satisfac-
“tion, which in its own nature mustapply to something specific,by which
“it can be estimated, being here given for use and occupation, and for
* nothing else, it is a remedy, which in its own nature is not co-exten-
“sive with a contract for rent, nor does it seem to have begn within
“the scope and purview of the act to make this remedy co-exten-
“sive with all the remedies for the recovery of rent, claimed to be
“due by the mere force of the contract for rent. The statute meant
# to provide an easy remedy in the simple case of actual occupation,
“ leaving other more complicated cases to their ordinary remedy. In
“ the case now under consideration, the plaintiff must be left to such
“other remedy as she may be advised to pursue : she cannot recover
“in an action for use and occupation without proof of the use and oc-
“cupation alleged : and if she can recover at all in this form of ac-
“tion, against one man for use and occupation by another, (as to
“ which we give no opinion) it must be upon the ground of that oc-
“cupation having been permitted at his request, and that request
“must be proved. The consequence is, that a nonsuit must be en-
“tered, and posted delivered to the defendants.” * *
If assignees receive money arising from property delivered to
the bankrupt for a particular purpose and which was in his posses:
sion at the time of his bankruptcy, such money may be recovered
from them in an action of assumpsit.
Thus in the case of Scott and others y. Surman and others,
assignees of Richard Scott, a bankrupt,(n) which was an action
of assumpsit for money had and received. The plaintiffs being part-
ners beyond gea consigned a quantity of tar to Richard Scott the bank-
rupt, brother of the plaintiff Scott, as their factor. There had been
mutual dealings between the two brothers, which were then unsettled.
The ship and goods arrived in the Thames from Carolina 22d March,
1739. Their factor received the bill of lading, and following, to
Cornelius and Jeremiah Owen ; and it was agreed that the tar should
be paid for in promissory notes payable four months after the delivery
of the goods, and that a debt of $11 due from the factor to the vendees
on his own account should be deducted. 1st April, 1740, the ven-
dees gaye the factor in part two promissory notes, one for 66l. 13s. 4d.
the other for 1021 6s. 8d. which with the 31. made up 200l. On the
3d April, 1740, the factor committed an act of bankruptcy, and a
commission issued on the 5th on the petition of one of the defendants.
The bankrupt delivered up the two notes to them as assignees, and
they afterwards received the money. They had likewise confirm-
ed the sale, and settled the account with the vendees, and received
gamr. X.A of Bankrupts and their designees.
437
the balance. being 378. 14s. They also received the bounty money
allowed by act of Parliament to the importers, being 299l, 88.
The defendants insisted that, as assignees, they were entitled to all
the money which they had received, and that the plaintiffs should come
in as creditors under the commission.
The court, however, were of opinion that the plaintiffs were enti-
tled to recover the sum of 327l. 10s, deducting the 311. for which
the plaintiffs could only come in as creditors.
Lord Ch. J. Willes in delivering the opinion of the court, said,
“we are all agreed that if the money for which the tar had been
* sold had been all paid to the bankrupt before his bankruptcy, and
tº had not been laid out again by him in any specific thing to distin-
f guish it from the rest of his estate, in that case the plaintiffs could
st not have recovered any thing in this action, but must have come in
st as ereditors under the commissioners, as is laid down in the case of
* Whitcomb v. Jacob, 1. Salk. 161, and in many other cases. But the
, reason of this is so very plain that I need not cite any other, because
f money has no ear-mark and therefore cannot be followed.
* We are likewise all agreed that if the goods had remained in
“specie unsold in the bankrupt’s hands at the time of the bankrupt-
“cy, the plaintiffs might have recovered them in an action of troyer,
“ and that they could not be applied to pay the bankrupt’s debts, ac-
“cording to the case of L’Apostre v. Le Plaistrier, cited in 1 P. Wms.
“ 318. adjudged in B. R. M. 1708. The case indeed of Wiseman v.
Vandeput, 2 Vern. 203, seems to imply the contrary , but ‘it does
* not appear by that case whether the goods were consigned
“to the bankrupt, as the buyer, or only as a factor; and besides the
“case of L’Apostre v. Le Plaistrier, which is long since, has deter-
“mined the contrary. But the present case is a middle case between
“ these two which I have mentioned, but I think may be determined
“on the same reasons. For why are goods considered still as the
“owners ? because they remain in specie, and so may be distinguish-
“ed from the rest of the bankrupt’s estate. But as money has no
“ear-mark, it cannot be distinguished. Otherwise to be sure, in rea-
“son, the thing produced ought to follow the nature of the thing out
“of which it is produced, if it can be distinguished ; and so long as
“it remains a debt, it is equally distinguishable ; or if it be laid out
“in a particular thing, as the case in Salkeld is. And the notes are
“within the same reason. And we do not only foundourselves on the
“reason of the thing, but on several cases which have been adjudged.
“The general rule is, that if a man receive money which ought to
“be paid to another or to apply to a particular purpose to which he
“does not apply it, this action will lie as for money had and received,
: &c. So held in Owen 86, that if money be delivered by A. to one
# 498
438
Of Bankrupts and their Jässignees. [PART II.
# 499
“to buy a horse or any other thing, if he do not lay out the money
“accordingly, an action of debt will lie or an action on the case for so
“much money had and received to fl’s. use. So in 1 Salk. 9. Pauller
• v. Cornwall, if a man receive meney for a special purpose and ne-
“glect or refuse to apply it to the uses for which he received it, an
“action on the case will lie as for meney had and received. And
“though a billin equity may be proper in several of these cases, yet
“an action at law will lie likewise ; as if I pay money to another to
“lay out in the purchase of a particular estate or any other thing, I
“may either bring a bill against him, considering him as a trustee,
“ and praying that he may lay out the money in that specific thing,
“ or I may bring an action against him as for so much money had and
“received for my use. Courts of equity always retain such bills
“when they are brought under a notion of a trust, and therefore in
“ this very case, have often given relief where the party might have
“had his remedy at law, if he had thought proper to proceed that
“ way. -
“To apply this general rule to the present case. The assignees
“having received this money which belongs to the plaintiffs, and
* ought not to be applied to pay the bankrupt’s debts, they ought to
“have paid it to the plaintiffs, and not having done so, this action
“*will lie against them for so much money had and received to the
“ use of the plaintiffs. But I need not rely on the general rule only,
“for this very point now in question has been twice solemnly deter-
“mined. First in the case of Gurrat v. Cullum, T. 9 Anne, B. R.
“ Bull. N. P. 42. which was thus ; The plaintiff being in Ireland, em-
“ployed Burtwell and Mason as his factors in London to sell goods
“ for him, which he had sent to them. They sell a parcel to J. S.
“ for 20l. the plaintiff not knowing to whom they were sold, nor J. S.
“ whose goods they were ; but they were delivered to him as the
“goods of B. and M. by a bill of parcels, and charged to their ac-
“ count in their books mutually. B. and M. before payment became
“bankrupts, and their debts are assigned by the commissioners to the
“ defendant, who afterwards receives the 20l. of J. S. The plaintiff
“brought an action for money had and received to his use ; and this
“ matter being referred by Holt for the opinion of the King’s Bench,
“judgment was given on argument for the plaintiff. Afterwards at
“ Guildhall, before Lord Chief Justice Parker, this case was cited
“ and allowed to be law, because though it was agreed that payment
“ by J. S. to Burtwell and Mason, with whom the contract was made,
“would be a discharge to J. S. against the principal, yet the debt
“ was not in law due to them, but to the person whose goods they
“ were; and therefore it was not assigned to the defendant by a gen-
... eral assignment of their debts, but remained due to the plaintiff as
tº before; and being paid to the defendant, who had no right to have
tº it, it must be considered in law, as paid for the use of him to whom
CHAP. X.] of Bankrupts and their Assignees. - 435
“it was due, and so an action will lie as for money had and received
** to his use.”
So, in the case of Tooke v. Hollingworth, and others, assignées of
. Daniel,(n) which was an action of trover, for three bills of exchange, (n) 5 Term
and a certain quantity of guineas. A special verdict was found, ãº
stating, that two years before the bankruptcy of Daniel, it was agreed S. dinºr.
between the plaintiff, a merchant residing at Manchester, and Daniel
then of London, a goldsmith, that the latter should purchase of the
former all the light gold coin of this realm, which the plaintiff should
send from Manchester to Daniel in London, at a certain stated price
to be paid by Daniel, to wit, at the rate of 208. 11d. for each guinea ;
and that the plaintiff should from time to time draw bills of ex-
change upon Daniel, for the money due to the plaintiff upon such sale
of the light gold, which bills should “be made payable at the end of # 500
two months from the respective dates thereof; and that Daniel would
also from time to time accept other bills of exchange, drawn by the
plaintiff for his own convenience ; but in such case the plaintiff
should remit value to Daniel to the amount of such acceptances 3
to answer together with the light gold for the different bills so
drawn on Daniel ; by reason of which agreement an account sub-
sisted between them, upon which, at the time of the bankruptcy of Dan-
iel herein after mentioned, Daniel was under acceptances for the plain-
tiff, in the course of their dealings under the contract, to the amount of
873!. 7s.6d. which sum exceeded the value of all the gold and bills
remitted by the plaintiff to Daniel, including the gold and bills in
the declaration mentioned. Independently and exclusively of the
said acceptances upon the balance of the said account, Daniel at the
time of his bankruptcy was indebted to the plaintiff in 5311. 7s. 7d. ;
and none of the bills so accepted by Daniel for the plaintiff, at the
time of the sending of the money, and three bills of exchange hereafter
mentioned, were due or payable. The plaintiff being possessed of
the three bills of exchange in the declaration mentioned, (the same
being then unpaid, and of the value, &c. therein mentioned,) and also
of the 213 light guineas, and 19 light half-guineas, as of his own bills
of exchange and monies, in pursuance of the said agreement so made
with Daniel, and in order to enable him to pay the said bills so ac-
cepted by him for the plaintiff, when they should become due, (and
being then wholly ignorant of Daniel’s being a bankrupt as hereafter
is mentioned) late of the evening of the 19th of July, 1791, sent by
the mail-coach at Manchester, which goes from thence to London, the
said bills and money, in the said declaration mentioned, in a box di-
rected for Daniel, and paid the carriage thereof; which bills set out
from Manchester for London early in the morning of the 20th of July,
and the monies were then and there partly cut, and partly uncut, and
the plaintiff of the same day, by the same mail, also sent a letter ad-
440
&f Bankrupts and their Assignees. [fant it.
dressed to Daniel, in which he advised Daniel that he had sent to him
the money and bills mentioned in the declaration, and transmitted
to him an account of some light gold and bills which he had sent on
a former day, and also an account of the bills drawn by the plaintiff
on Daniel (in number six) since his last letter, a few days before.
None of the drafts so advised to be drawn upon Daniel by this letter
% 501
were ever accepted by him. The letter and box containing the three
bills of exchange and monies, afterward-on the 21st of July, were de-
livered to one Joseph Heathcote (the messenger under the commis-
sion) at Daniel’s house in London, the messenger having been in pos-
session from the 19th of July of the house and of the goods and effects
of Daniel, and the messenger paid the porterage for the same. The
verdict then stated that Daniel had committed an act of bankruptcy
on the 6th of July, 1791, by absconding; that the commission issued
on the 19th of July, on which day at 3 o'clock in the afternoon, Daniel
was declared a bankrupt; that on the 30th of July the assignment
was made to the defendants, after which the messenger delivered the
bills and guineas to the defendants, who at the time within mentioned,
as such assignees, &c., refused to deliver the same upon demand to
the plaintiff, and converted, &c. That after the commission issued,
and before any of the bills drawn by the plaintiff and accepted by
Janiel were paid by Daniel or by the defendants, or presented to
them for payment, and before the conversion above stated, the
plaintiff paid the amount of them to the several holders; and that
Daniel’s estate was thereby wholly exonerated therefrom. And that
the plaintiff was wholly ignorant of Daniel’s bankruptcy until after
the delivery of the bills and money to the defendants.
The court of King's Bench gave judgment for the plaintiff : but
Mr. Justice Buller dissented from this judgment. A writ of error
l. 501,
* 502
was afterwards brought into the Exchequer Chamber, where, after
two arguments at the bar, the judgment of the Court of King’s Bench.
was affirmed, and Lord Ch. J. Eyre, in pronouncing the judgment of
the Earchequer Chamber, said,(0) “We are all of opinion that this
“judgment ought to be affirmed. I shall state very shortly the rea-
“ sons which have induced me to concur in that opinion. The right
“ of the parties to the light gold and bills, which are the subject of this
“action, appears to me to dépend principally upon the true construc-
“tion of the original agreement between Tooke and Daniel, made
“ two years and upwards before the bankruptcy. That agreement
“consisted of two parts; one being a contract for a bargain and sale
“ of light gold by Tooke to Daniel, at a given price to be paid for
“by bills of exchange, payable at two months, a simple and unem-
“barrassed transaction; the other being a contract, the effect of which
“ was that Daniel should become Tooke's banker, that he should ac-
“cept his bills, Tooke remitting value to the amount of "such accep-
t ear. X.] ef Bankrupts and their Assignees.
44;
“tances, in bills and in light gold. That is plainly the effect of the
“ latter part of the agreement. They might have dealt as mere mer-
“chants, the one selling and the other buying this article of light gold
“ and paying for it according to agreement. And had this been a
“ case of that kind, the transâction would have had one complexion,
“ and the argument upon it, I think, would have taken one course. But
“ as they might act in that manner, so they might upon the latter
“branch of the agreement act as principal and factor, or principal and
“banker, and not as mere merchants; and the idea of bargain and sale
“would enter no fartherinto their transactions upon that branch ofthe
“ agreement than merely as it went to fix the price at which the light
“gold which should be remitted from time to time, should be carried
“ to the accountof Tooke as cash, and be applied by Daniel, as Tooke's
* agent in payment of the acceptances which he had made on
“ the credit of Tooke. There would certainly be this mixture of
“bargain and sale in any transactions which should take place even
“ under the latter branch of the agreement, which in other respects
“would be the transaction of principal and factor, or principal and
“banker. But though there be this mixture, yet I think the case of
“the light gold cannot, in respect of that circumstance, be separated
* from the case of the bills. If Daniel was to be considered as a fac-
* tor of banket only with respect to the bills which should be remit-
“ted, he ought to be considered as banker or factor only, as to the
* light gold, with an agreement on his part to apply that light gold in
“payment of his acceptances, at the rate fixed in the former part of
“ the agreement. In a word, the bargain and sale of the light gold;
* when considered under the second branch of the agreement, as a
* remittance to pay the acceptances, is but an incident in the busi-
“ness of the principal character of factor or banker. Now if it can
“be established, that Tooke and Daniel acted in the characters of
éc principal and factor, their respective rights of property are very ea-
“sily ascertained ; the general right of property would be in Tooke, the
“special right of property in Daniel, to enable him to execute the
* commission with which Tooke had entrusted him; and he would
“ also have a lien as against the general property of his principal, for
“ the balance of his account. In this way of considering the case,
“we may lay all this story of the bankruptcy entirely out of the ques-
“tion. For suppose Daniel had remained solvent, Tooke might, at
“any time, have paid him his balance including any acceptances he
* might be under, and have withdrawn his effects out of Daniel’s
“hands; and ºthere could have been no room for a question between
“ them but merely as to the profit upon the light gold estimated at
“ the price in the agreement. Now I think that would depend on
“ the question, whether the light gold was sold under the first part
* of the agreement, or whether it was to be considered as a mere ar-
“ticle of remittance under the latter part; and according to my view
Wei. P. [56]
# 553
44%
Of Bankrupts and their Assignees. [PART HI.
) The
hief Justice
is suppos-
ed, by the
Reporter, to
refer to the
argument of
Mr. Justice
Grose, in 5
Term Rep.
$33.
“of the case, I think that question would be decided against Daniel,
“The assignees standing in the place of Daniel, certainly can be in
“no better condition than Daniel himself. The ground F have taken
“is very distinctly marked, and very well enforced in the argument
“of one of the Judges of the Court of King’s Bench.(p) He con-
“cludes somewhat differently from me, but the groundwork is there.
“In my opinion it may be sustained, it steers clear of all difficul-
“ties, and it reaches the substantial justice of the case, because it
“meets the only argument of considerable weight that struck my
“mind, namely, the possibility that the bankrupt might have been the
“creditor, and the injustice which would have been done to his es-
“tate, if these effects could on account of the bankruptcy have been
“withdrawn from the mass of his estate. Now as the principle up-
“ on which my opinion proceeds is, that the bankrupt would have had
“a lien upon those effects for every thing for which his estate was
“ creditor, that difficulty is removed. Upon this ground I concur in
“thinking that the judgment in this case ought to be affirmed, and it
“is the unanimous opinion of the court, that the judgment be affirm-
ck ed.”
So, in the case of Parke v. Eliason and others, assignees of Persent
and Bodecker, bankrupts,(q) which was an action of assumpsit for mo-
ney had and received by the defendants to the plaintiff’s use. Up-
on the trial a verdict was found for the plaintiff for 4,710l. 10s. 6d.
subject to the opinion of the court on the following case : on the 17th
of August, 1799, Mr. Cullen, as agent for the plaintiff, wrote a letter
to the bankrupts, who were then merchants in London, inclosing sev-
eral bills of exchange, indorsed in blank by the plaintiff, amounting to
4,837 l. 10s. 11; d. as follows: “A friend of mine wishes to place the
“ within inclosed bills, amounting to 4,837l. 10s. 11; d. in your hands,
“to be allowed permission to draw without renewals at two or three
“months, *allowing the commission formerly mentioned in your let-
“ter. I shall be obliged by your making a calculation of the sum to
“be drawn for. Your compliance will much oblige,”&c. -
(q) 1 East's
Rep. 544.
* 504
13th July, 1799. Sterling and Hunter’s note at - #9. a. d.
- six months sº sº 1423 7 4
Pardo on Da Costa, nine ditto 733 1 1 0.
G. Frazer and Co. on Hymen,
Cohen, and Co. fourteen
ditto s' ** dº as 474 O 6
CHAP. X.] Of Bankrupts and their Assignees.
445
2d March, 1799. Parke on Aguilar and Co. £ s. d.
fourteen ditto - - 1527 13 0
$1st October, 1797. Bogle and Jopps on Jopp,
twenty-seven ditto - - $78 19 7:
31st October, 1797. Ditto on ditto twenty-seven
ditto r = - - {-, 300 0 ().
4.4837 10 11?
On the 19th of August, 1799, the bankrupts returned the following
answer to Mr. Cullen : “We have been duly favoured with your
letter of the 17th, covering your remittances for 4,8371. 108. 11 3-4d.
“which agreeable to your wishes we have discounted ; and beg leave
* to hand you annexed an account thereof, by which you will observe
“ there remains 4,710l. 68, 6d, for you to value upon us at three
* months’ date without renewal, which drafts will on presentation
* meet due honour.” On the 26th of flugust, Cullen wrote to the bank-
rupts as follows: “I duly received your esteemed letter of the nine-
* teenth current, and return you my best thanks for its contents.
* Mr. John Parke will draw for the bills you discounted which please
“ to honour.” On the 28th of August, the bankrupts wrote to Cullen
as follows: “Your esteemed of the 26th instant, apprises us, that Mr.
* John Parke has your authority to draw for the bills, which we dis-
“ counted, which draft will meet due honour.” On the 21st of Au-
gust, the plaintiff drew bills at three months’ date upon the bank-
rupts amounting to 4,710l. 68, 6d., being the amount of the bills sent
to them as aforesaid, allowing to the plaintiff interest for the three
months, and deducting the commission agreed upon ; which bills were
accepted by the bankrupt ; but on account of their insolvency they
were unable to pay any "of their acceptances. In September, 1799,
Persent and Bodecker, became bankrupts, having in their hands the
several bills received from the plaintiff unnegotiated ; and for which
the defendants as their assignees in and previous to May, 1800, re-
ceived the full amount. Three of the acceptances amounting to
1,600l. given by the bankrupts to the plaintiff were negotiated by him,
but in consequence of their bankruptcy the bills were returned to him
dishonoured; and he tendered the same, and also the other six
bills, amounting to 3,210l. 68.6d, which had not been negotiated, to
the defendants on the 18th September, 1800, previous to the com-
mencement of this action, and demanded payment of the money which
they had received upon the bills discounted by the bankrupts as be-
fore stated. q * -
The court determined that the bills had been placed in the hands
of the bankrupts for a particular purpose, and therefore gave judg-
ment for the plaintiff. - - * -
# 505
444 of Bankrupts and their Assignees. [Paar II.
Ilord Kenyon, Ch. J. said, “Some confusion has arisen by sup=
“ posing that there is a technical sense annexed to the term discount,
“ which cannot be gotten rid of ; but that is explained by consider-
*ing the true nature of the transaction. If the bills had been taken
“ to the bankrupts upon a simple proposal to discount them, the trans-
“action would have been merel y that of a purchase, and no question
“could have arisen. But this is nothing like a case of discount
~x. “but the bills were placed in their hands to answer a particular
“purpose. The first proposal to them is to know to what extent.
“the plaintiff might draw on them upon a deposit of the bills. The
“bankrupts by their answer accept the offer, and specify the amount
“to which they will honour the plaintiff’s drafts, at three months'
“ date. If this had been a new case, there might have been as much
“difficulty in it as there was in the case of Tooke v. Hollingworth,
“which was very fully considered.—There was indeed a difference
“of opinion among the judges of this court, but a majority thought
“ with the plaintiff, and their judgment was afterwards confirmed in
“the Exchequer Chamber upon a writ of error. The same principle
“ was afterwards recognised in the case of Bent v. Puller,(r) though
(r) Post 506. ... i. º.º. - * †ys 1 . - v -15
• “the conclusion was different upon the facts there ‘disclosed; and
V “it appeared to me that Mr. Justice Buller, who differed from the
$ 506 “rest of the court in the first case, relented a little in the subse-
. . . . “quent one ; at any rate however the point is now settled, and the
“distinction clearly ascertained between the case of bills paid into a
“banker’s hands on a running account, and the case of a single trans-
“action like the present, where the deposit is made for a special
“purpose, Here the bills were deposited for the express purpose
“of enabling the plaintiff to draw on the parties to a certain amount;
“ and those very bills having an ear-mark on them which distinguish-
“ed them from the mass of the bankrupt’s property, remained in
“specie in their possession at the time of the bankruptcy : then shall
“ the assignees be permitted to appropriate them to the use of the
“bankrupt’s estate when the other acceptances, in consideration
“ of which the deposit was made, have not been paid : The assignees
“can only take the property of the bankrupts subject to every equi-
“ty to which it was liable in their hands; and they having received
“these bills upon a condition which has failed, it is secundum aquum
“et bonum that the plaintiff should recover back the value of them.
“I refer to the principles established in Tooke v. Hollingworth, and
“ Bent v. Puller, which are plain and intelligible to all men, and I
*“must lean against making any exceptions to them upon nice dis-
“tinctions, which would serve only to perplex commercial transac-
“tions.” . - . . . . . . . " . . . . . . . . .
But, where A. and B. have a general running account consisting
of bills drawn by B. on C. in favour of 4, and of bills and other see W.
£HAP. X.] Of Bankrupts and their Assignees.
445
rities deposited by A. with B., and upon the failure of B. and 6., 4.
be obliged to take up the bills received by him from B, whereby the
balance of the accounts is in favour of A., still he cannot maintain
trover for the bills deposited by him with B., unless they were spe-
cifically appropriated to answer B.’s drafts on C. in favour of fl. and
deposited for that purpose expressly.
Thus in the case of Bent and another v. Puller and others, as-
signees of Caldwell and Co.(8) which was an action of trover for two
bills of exchange, one for 1,000l. the other for 495l. 138. brought un-
der an order of the Court of Chancery, on hearing the petition of the
plaintiffs, in the bankruptcy of Forbes and Gregory, merchants in
London, and in the bankruptcy of Caldwell, Smith, Forbes and Gregory,
bankers at Liverpool. On the trial before Lord Kenyon at Guildhall, the
case appeared to be thus : The “plaintiffs kept a banking account,
with Caldwell and Co., which consisted solely of bills received from
them by the plaintiffs, drawn on the bankrupts in London, (who act-
ed as bankers for Caldwell and Co. at Liverpool.) on one side, and
of bills and negotiable securities paid in by the plaintiffs on the other
side. This account did not include any other dealings between them,
though there existed other accounts between R. Brent, one of the
plaintiffs, and Caldwell and Co. An interest account was regularly
kept between the parties ; when the bankers were in advance in cash,
they debitted the plaintiff’s account with interest during such ad-
vance; when they had cash in hand, they gave credit for interest up-
on it. The account was balanced every three months: and the bank-
er charged 5s. per cent, commission on the amount of the bills drawn
by them, which constituted their profit. On the 28th February, 1793,
the account was balanced, in which was included all the bills receiv-
ed by the plaintiffs from Caldwell and Co. to that time; and suppos-
ing them all good, the plaintiffs would then have been debtors in 3,8821.
8s. 8d. On the 1st, 8th, and 15th of March the plaintiffs received from
Caldwell and Co, other bills amounting together to 445/. 6s. 3d. On
the 13th of March, the plaintiffs sent to Caldwell and Co. seven ex-
cise debentures, to the amount of 674!. 5s. 11d. which were received
by the latter. On the 16th of March, Forbes and Co. stopped pay-
ment in London, at which time the plaintiffs had in circulation bills
drawn on Forbes and Co. by Caldwell and Co. to the amount of
3,326l. 7s. 4d, Caldwell and Co. stopped payment on the 18th of
March, On the 16th of March about five in the afternoon the plain-
tiffs sent to Caldwell and Co. fifteen bills (of which the two in ques-
tion were part, the action being brought on two only to try the right)
amounting to 3,9531. 53. 4d, which if placed to their credit, would
turn the balance in their favour 7991. 16s. 4d. allowing all the bills
received from Caldwell and Co. to be good; but those bills were af.
*.
(s) 5 Term
Rep. 494.
See also Bol-
ton v. Puller
and others,
1 Bos. & Pull.
589. S. P.
* 597
446
€f Bankrupts and their flesignees. [PART II,
# 508
terwards returned to, and taken up by the plaintiffs on the failure of
the drawers and acceptors.
The question was, whether the bills in question were paid by the
plaintiffs to the house of Caldwell and Co. on a particular or general
account. The plaintiffs contended that they were deposited with
Caldwell and Co. for a particular purpose, namely, to answer the
bills given by Caldwell and Co. to the plaintiffs, and which were then
running; and, that as the purpose for which they had been deposited
had failed, the plaintiffs had a right to have them restored. That
these bills could only have been "retained by Caldwell and Co. for
the purpose of indemnifying them against the payment of their own
paper then in circulation; that, as that paper had been returned to,
and taken up by the plaintiffs, the lien of Caldwell and Co. on the
bills in question (which existed only for a particular purpose) was de;
stroyed, and that the defendants, who represented Caldwell and Co.
could not set up any defence that Caldwell and Co. could not.
On the other hand it was insisted, on the part of the defendants,
that the bills in question were paid into the house of Caldwell and Co,
on the general account that subsisted between them and the plaintiffs
and were not deposited with Caldwell and Co. to answer the specific
bills drawn by them on Forbes and Co. in favour of the plaintiffs ; for
that so far from there being any proof that the latter was the agree-
ment of the parties, the contrary was evident from their general course.
of dealing; and that as the bills in question had not only been paid
into the house of Caldwell and Co. on that general account, but had
been since actually negotiated by them to Forbes and Co. to whom
they were then indebted, the plaintiffs had no right to recover them
back. The jury after inspecting the plaintiff’s books, thought that the
bills were paid to Caldwell and Co. on the general account between
them and the plaintiffs ; the plaintiffs were therefore nonsuited. -
The Court of King’s Bench, upon a motion for a new trial, were
also clearly of opinion, under the circumstances of the case, that the
plaintiffs were not entitled to recover ; and they accordingly refused
the rule. • , ... 8
Buller, J. said, “That in order to make it a specific appropriation
“ of bills there must be a lodging of a bill for a bill, or at least several
“ deposited at once as one entire transaction to answer some particular
“purpose, whereas here the bills were paid in on a general running
“account, and the amount of the bills claimed as a deposit not even
“corresponding with the account of those for which they were supposed
“ to be deposited. And that this case must be considered in the same
“manner as if the question had arisen before the bankruptcy of Cald-
“ well and Co. in which case the plaintiffs could not have compelled
tº the bankers to deliver up the bills in question on paying the others.”
CHAP. X.] Of Bankrupts and their Assignees.
447
Lord Kenyon, Ch. J. “I agree with my brother Buller that there
“ must be either a bill pledged against a bill, or a transaction against
“*a transaction: but here the bills were coming in day after day,
“ not for the purpose of opposing a bill on one side of the account to
“ another on the other, but all were paid on one general account.
“The plaintiffs therefore are not entitled to recover these bills on the .
“ground that the particular purpose for which they were deposited
“has not been answered, because it does not appear that they were
“deposited to answer that particular purpose. On the trial, the jury,
“ on inspecting the books, thought that this was a general banker’s
“ account, and that there was no specific appropriation of the bills in
“question; and it appears to me in the same light.”
When a bankrupt fraudulently procures a bill of exchange from
another, and his assignees receive the money for the bill, it may be re-
covered from them in an action for money had and received.
Thus, in the case of Harrison v. Walker and another, assignees,
# 509
&c.(t) which was an action of assumpsit for money had and received, (t) Peake's
brought to recover back a sum of 190l. 10s, which had been received by i.
the defendants in payment of bills remitted by the plaintiff to the
bankrupts under the following circumstances.
The bankrupts, previous to their bankruptcy, had sentabilk of 1931.
17s. drawn by themselves on one Dawson, and purporting to be ac-
cepted by him, to the plaintiff to be discounted. The plaintiff on the
10th of November, sent bills in return to the value of 190l. 10s. which
arrived in town on the 12th, on which day one of the bankrupts ab-
sconded, the other having gone off on the 10th. It was afterwards
discovered that the acceptance was a forgery, which the bankrupts
knew of, and it was proved, that the defendants had received the mo-
ney for the bills sent by the plaintiff.
Lord Kenyon, Ch. J. before whom the cause was tried; said, “The
“assignment under the commission passes only such property as a
“bankrupt is conscientiously entitled to. In this case the plaintiff
“had received no consideration whatever for the bills by him remit-
“ted to the bankrupt ; and he is entitled to have the value of them,
“which the defendant received, returned to him.” The plaintiff ac-
cordingly, obtained a verdict.
So, where there are mutual accounts between a bankrupt and *an-
other person, and the latter, (by mistake,) pays the whole of the debt
due from him to the bankrupt, without deducting the money owing to
him from the bankrupt, he may recover it back from the assignees, by
action of assumpsit for money had and received.
N. P.
# 516
448
of- Bankrupt, and their Assignees. . [PART If.
Thus, in the case of Bize v. Dickason and another, assignees of Bar-
(v) 1 Term tenshlag,(w) which was an action for money had and received by the
Rep. 285.
See also
defendants as assignees of the bankrupt to the use of the plaintiff. And
Gº, Du-on the trial a verdict was found for the plaintiff, damages 661. 9s;
§§ ib. 11° 10d. subject to the opinion of the court of King’s Bench, on the fol-
# 511
lowing case, viz. That the bankrupt being an underwriter, subscribed
policies filled up with the plaintiff’s name for his foreign correspon-
dents who were unknown to the bankrupt ; that losses happened
on such policies to the amount of 655l. 9s. 7d. before the bankruptcy
of Bartenshlag, and were adjusted by him ; that a loss on another
policy to the amount of 6l. 0s. 8d, happened before the bankruptcy,
but was not adjusted till after that event; that the plaintiff paid the
amount of the losses to his foreign correspondents after such bank-
ruptcy; that the plaintiff had a commission del credere from his cor-
respondents; was made debtor by the bankrupt for the premiums,
and always retained the policies in his hands; that a dividend of 10s.
in the pound was declared under the said commission on the 15th
of June, 1782 ; that at the time of the bankruptcy there was due from
the plaintiff to the bankrupt, the sum of 1,356l. 0s, 3d. And there was
due from the bankrupt for the above losses 661. 9s. 10d. ; that on
the 15th of March, 1782, the plaintiff paid to the defendants the sum
of 750l., and on the 17th of November, 1785, the further sum of 606l.
0s. 8d, amounting to 1,356l. Os. 3d. and on the 18th of November, 1785.
the plaintiff proved the said sum of 661. 9s. 10d. under the commis-
sion; that the plaintiff never received any dividend under the com-
mission for or on account of the said losses; that a final dividend of
the effects of the said bankrupt was declared by the said commission-
ers on the 24th day of January, 1786; that on the 1st of February,
1786, previous to such dividend being paid, the plaintiff caused a no-
tice to be served on the defendants, purporting that he had paid them
the said sum of 1,356l. 08. 3d. under a mistaken idea, without de-
ducting therefrom the said 661. 9s. 10d. for the aforesaid losses, on
the said several policies subscribed by the bankrupt, *for whom he
was del credere to the said foreign correspondents, and had paid such
Iosses accordingly ; and cautioning them against making any divi-
dend until he was paid the said sum of 661. 9s. 10d.
The court decided that the assignees ought to have refunded the
money in question, and gave judgment for the plaintiff accordingly.
Lord Mansfield, Ch. J. said, “The rule had always been, that if a
“man has actually paid what the law would not have compelled him:
“ to pay, but what in equity and conscience he ought, he cannot re-
“ cover it back again in an action for money had and received. So,
“ where a man has paid a debt, which would otherwise have been
“barred by the statute of limitations, or a debt contracted during his
* { * , , f f º g > ſº º ;
bar. X.] of Bankrupts and their Assignees. iłł
is infancy, which in justice he ought to discharge, though the law
“would not have compelled the payment, yet the money being paid,
i. it will not oblige the payee to refund it. But where money is paid
... under a mistake, which there was no ground to claimin consciences
“ the party may recover it back again by this kind of action.”
* -*.
i. Of the Assignee's Liability to an Action of Assumpsit for a Divi-
dend, and for an allowance to a Witness.
An action of assumpsit may be supported for a creditor’s share
under an order for commissioners of bankrupt for a dividend; and in
such action, the proceedings before the commissioners are conclusive
evidence of the debt; for after a debt is liquidated before the commis-
sioners, it cannot be litigated but by an application to the great seal.
Thus in the case of Brown and another, executors of Gravatt v.
Bullen, assignee of Foz, a bankrupt.(a) which was an action of as-
sumpsit for unoney had and received. The case appeared to be as
follows: the testator, G, avatt, proved a debt of 410l. 18.7d., under
the commission against Fow. Afterwards a dividend of six hillings
in the pound being declared by the commissioners, and Gravatt hav-
ing died in the interval, the plaintiffs, as his executors demanded * *
their share of the dividend, amounting to 1231. 0s. 1d. *which the de- # 512
fendant refused to pay, alleging, that there was a balance due by Gra-
watt to the bankrupt. Upon which the plaintiffs brought this ac-
tion. The defendant pleaded non-assumpsit, and delivered a notice
of set-off.
(a Doug.
407.
, At the trial it was contended, on the part of the defendant; 1.
That the action could not be maintained, the only method of recover-
ing debts proved under a commission of bankruptcy, being by ap-
plication to the great seal. 2. That if the action was maintainable.
the consideration and circumstances of the debt must be gone into
ând proved, as in other actions of assumpsit. 3. That if this was
hot incumbent on the plaintiffs, yet it was competent to the defend-
ânt to avail himself of the notice of set-off.
Lord Mansfield, Ch. J. overruled all these points. He thought,
first, that the action was maintainable; 2. That the only way to ques-
tion the proof of the debt taken by the commissioners, was by petition
to the chancellor; that by the statutes, the oath of the party is to be
the proof of the debt, and a particular penalty is imposed for swearing.
to a false debt; and, 3. That as the commissioners have a power of
Hetting off mutual debts, the sum proved must be taken tº be the bar"
Yoi. K. [57]
450
Of Bankrupts and their ſissignees. [PART II.
# 513
(2) 1 Esp.
Rep. 64.
ance due; but if it should happen, that only one side of the account
appeared before the commissioners, or that any article was omitted
on either side, on application to the great seal, the account would be
again opened, and referred to the commissioners, or, in cases of diffi-
culty, to the master. The jury under his Lordship’s direction found
a verdict for the plaintiffs, and on a motion to set aside this verdict
the court of King's Bench were of opinion that the direction of the
Chief Justice was right.
Lord Mansfield, Ch. J. in delivering the opinion of the court upon
this motion, said, “I allowed the plaintiffs to recover their share of
“ the dividend against the assignees as money positively and express-
“ly paid into the hands of the assignees for their use. We are all
“of opinion, that the direction was right, that the action was main-
“tainable, and that, after a debt is liquidated before the commission-
“ers it cannot be litigated, but by an application to the great seal.”
With respect to witnesses, it has been decided that the commis-
sioners of bankrupt may make a verbal order upon the assignees *of
a bankrupt for the payment of the expenses of a witness whom they
have summened to attend them, and that the same may be recovered
against the assignees in an action of assumpsit.
Thus in the case of Parker v. Botham and others.(2) The decla-
ration in this case stated, that a commission of bankruptcy having is-
sued against Thomas Cooper and John Brown of Lancaster, under
which the defendants had been chosen assignees; that a summons
signed by the major part of the commissioners named in the commis-
sion was served upon the plaintiff requiring him to attend the said
commissioners. That the plaintiff did attend in pursuance of such
summons, and was then and there examined : that the plaintiff was
put to great expense in coming from Lancaster for the purpose of so
attending the commissioners, and that they had ordered a certain sum
of money to be paid to him for such expenses, for which sum the ac-
tion was brought.
By stat. 1 Jac. I. c. 15. s. 10, power is given to the commissioners
to summons persons having or suspected to have or detain any part
of the property of the bankrupt, and to examine them respecting it.
And by the eleventh section of the same statute, “such witnesses so
“sent for shall have such costs and charges as the commissioners in
“ their discretion shall think fit to allow.”
The witnesses for the plaintiff proved the attendance of the plain-
tiff, and that having made a demand of his expenses before the com-
missioners, they settled the sum to be allowed for the purpose ; tha
Botham, the defendant, was present, and took an account of the plain-
tiff’s demand, and promised to pay it.
GHAF. X.] - of Bankrupts and their Assignees.
451
This was the only evidence offered to support the action.
The counsel for the defendant insisted that it was not sufficient to
sustain the action: that the claim was under a proceeding before
commissioners of bankruptcy; that their proceedings were in writing,
and that therefore an entry in writing in the proceedings to the effect
set up by the plaintiff should be shown in order to entitle him to re-
cover, whereas this was only by parol. They further contended, that
the plaintiff, being himself a creditor, was bound to attend the com-
missioners on their summons, and therefore could not claim an al-
lowance for what he was bound by law to do.
But Lord Kenyon, Ch. J. before whom the cause was tried, over-
ruled ‘both objections. He said, “ that the act of parliament having
“given the commissioners a power to allow any person his expenses
“whom they had called upon to attend them, that the order in the
“ present case, was made in pursuance of that authority, and that it
“ was not necessary that it should be in writing.” The plaintiff ob-
tained a verdict accordingly. -
12. Of Monies received by Assignees, who have been removed. .
If an assignee of a bankrupt be removed, and assign his interest to
the other assignees, they may maintain an action of indebitatus as-
sumpsit against him, to recover any money which he may have re-
ceived as such assignee. ... ". -
Thus, in the case of Smith and others, assignees of Lewis and
# 514
Potter, v. Jameson and another,(a) which was an action of assumpsit (a) Peake's
- Cas. N. P.
for money had and received. Robert Jameson one of the defendants
by order of the Lord Chancellor ; and then reassigned all his interest
to the plaintiffs. -
Whilst he was an assignee, he had received several sums of mon-
ey which he had applied to the use of himself and the other defendant,
(with whom he was in partnership) with the approbation of the other
defendant, who knew that the money was part of the bankrupt's es-
tate. *. -
The present action was brought under the direction of the Lord
Chancellor, to determine whether the estates of both defendants were
liable, (they having become bankrupts,) and they were to be examined
as witnesses, if necessary. * -
The counsel for the defendant objected to the action in point of
form. He said that one defendant having been assignee of the bank-
was a joint assignee with the plaintiffs, but was afterwards removed 213.
#
§
#
8ſ Bankrupts and their Assignees. reagr n.
(b) 3 Term
Rep. 17. . ;
& 516
Fupt’s estate, was himself entitled to receive this money; that he could
not have maintained an action against himself, and having assigned
only such an interest as he himself had, could not in point of form bé
a defendant. . . . . . . ; &
But Lord Kenyon, Ch. J. said, “When an assignee assigns his in-
“terest, he divests himself of all right, and becomes a debtor to *those
“who remain assignees. Choses in action have always been considered
as assignable in case of bankruptcy.” A verdict was therefore.
found for the plaintiffs. \ * {
* . . . . * .
*sººn
13. Of promises, &c. to pay money in consideration that the Assignees
will forbear to examine a Bankrupt, or will stay proceedings
wnder the commission, &c. * *
A promise made by a friend of the bankrupt, when he was on his
last examination, that in consideration that the assignees and com-
missioners would forbear to examine him touching certain sums which
he was charged with having received, and not accounted for, he would
pay such sums as the bankrupt had received and not accounted for, .
is void, as being against the policy of the bankrupt laws.
Thus, in the case of Werot v. Wallace and others, assignees of Rei-
ly and Collins, bankrupts, in error.(b) It was an action upon the case
in assumpsit brought in the Court of Common Pleas; and the decla-
ration, after stating the trading by the bankrupts, the petitioning cre-
ditor's debt, the commission of bankrupt, the appointment of the plain-
#iffs as assignees; that the three meetings were appointed, at the first
of which Reily submitted to be examined ; but Collins not being pre-
pared, prayed time, which was given him; that at the adjourned meet-
ing, Collins was charged by the plaintiffs with having received divers
sums of money on the partnership account, which he had not account-
ed for, when the commissioners required him to render a true ac-
count of the sums which he had received on the partnership account,
and in what manner be had disposed of the same, and were then about
to examine him in due form of law, and to compel him to make a full
disclosure touching the same, proceeded to state, that in considera-
tion, that the plaintiffs, at the special instance and request of the de-
fendant, would forbear to proceed to have the examination of the said
Collins taken by and before the commissioners, concerning the said
sums, which had been received by the said Collins on the partner-
ship account, and which had not been duly accounted for by him to
the partnership, and in what manner he had disposed of the same ;
and that the commissioners would accordingly forbear and "desist
£nar. X.y of Bankrupts and their Assignees.
453
from taking such examination; he (the defendant) undertook and
faithfully promised the plaintiffs, as assignees, to pay to them all such
sums of money which Collins had received on the partnership ac-
count, and which had not been accounted for by him to the partner-
ship. The plaintiffs then averred, that they, confiding in such prom-
ise, did forbear, and have always foreborne to have such examina-
tion, &c. taken before the commissioners, &c. and that the said com:
missioners did forbear and desist from taking such examination, &c.
The declaration then stated that Collins had, at the time of the mak-
ing such promise, received divers sums of money, amounting in the
whole to a large sum of money, to wit, 1,000l. on the partnership ac-
count, and which had not been by him duly accounted for, which the
plaintiffs demanded of the defendant, who refused to pay, &c. There
were other counts for money paid, laid out, and expended, money had
and received; and on an account stated.
The defendant pleaded the general issue. At the trial a verdict
was given for the plaintiffs for 852l. A motion was afterwards made
in the Court of Common Pleas to arrest the judgment, which was re-
fused. The defendant then brought a writ of error in the Court of
King's Bench. *
The Court determined that the consideration of the promise in
the first count was void, as being against the policy of the bankrupt
laws. g e
Lord Kenyon, Ch. J. said, “The question is, whether the verdict
“can be sustained on the promise laid in the declaration? And I am
“ clearly of opinion that it cannot. I do not say that this is nudum.
“pactum ; but the ground on which I found my judgment is this ;
“ that every person, who in consideration of some advantage, either to
“ himself or to another, promises a benefit, must have the power of
“ conferring that benefit up to the extent to which that benefit pro-
“fesses to go ; and that not only in fact, but in law. Now the pro-
“mise made by the assignees in this case, which was the considera-
“tion of the defendant's promise, was not in their power to perform ;
“ because the commissioners had nevertheless a right to examine the
“bankrupt, and no collusion of the assignees could deprive the credi-
“ tors of the right of examination, which the commissioners would
“ procure them. The assignees did not stipulate only for their own
“ acts, but that also the commissioners should forbear to examine the
“bankrupt : but clearly they had no right to tie up *the hands of the
“commissioners by any such agreement. And if any proposal of that
“ sort had been made to the commissioners, they, as acting in a pub-
“ lic duty, would have been guilty of a breach of that duty in acced-
“ing to it. But it has been argued, that after verdict something may
# 517
454
of Bankrupts and their Assignees. [PART II,
(c) 6 Term
Rep. 134.
% 518
“be intended to support it : but I do not see what we could presume
“in this case to support the verdict. It is impossible to say, that the
“bankrupt had only received a certain sum, for then we must sup-
“pose, that the plaintiffs had proved a negative. If they had not pre-
“cluded themselves from any further examination, circumstances
“might have led to suspect that further sums might have been disco-
“vered on a future examination. Then it has been said, that the
“creditors would not suffer any inconvenience from this agreement
“not to examine the bankrupt, because by another mode of examina-
“tion, by a bill in equity, they might have obtained a full disclosure.
*But my experience in that court does not suggest the possibility of
“filing such a bill in equity ; and if there could be such a bill, it can-
“not be contended that an answer to a bill in chancery is as likely a
“mode of obtaining a discovery as a viva voce examination before the
“commissioners. But the principal objection to the consideration of
“this promise is, that it is contrary to the policy of the bankrupt
“laws.-These laws, which have been revised and corrected as much
“ as human wisdom will permit, have pointed out certain modes of
“examination, which the legislature has entrusted to certain persons
“acting for the benefit of the creditors; all which might be put an
“end to by an agreement of this sort, and without the consent of the
“commissioners or the creditors at large. Therefore I am clearly of
“opinion, that the consideration which was held out to the defendant
“below, was such as the plaintiffs had no power to offer. If the cred-
“itors indeed had been called together, and they had consented to
“the agreement, that might perhaps have altered the case : but they
“must have been convened by an advertisement in the public papers
“for that particular purpose; for it was repeatedly determined by
“Lord Hardwicke, that a general power given to the assignees to
“ compound debts was aot sufficient, but the creditors must be called
“together to consider of each particular case.
But, an agreement by a friend of a bankrupt to pay all his creditors
their full debts, in consideration that they will not proceed any further
under the commission is good in law.
Sthus, in the case of Kaye v. Robert Bolton,(c) which was an *action
of Covenant. The declaration set forth certain articles of agreement,
dated the 6th of April, 1793, between Isaac Bolton of the first part,
the plaintiff of the second part, W. Hardham, E. Threlfal, and J. H.
Hobrow, the major part of the commissioners, named in a commission
of bankruptcy issued against I. Bolton, of the third part, the defend-
ant of the fourth part, “ and the several creditors of the said I. Bolton
“ whose names were thereunto subscribed and seals affixed, being
“J. F.” &c. (naming them, in number 24) of the fifth part ; in which
it was recited that a commission of bankruptcy had been awarded
Char. X.] of Bankrupt, and their Jłssignees.
455
against I. Bolton, under which he had been declared a bankrupt, and
that the plaintiffhad been elected sole assignee of his estate, but that
the defendant, in order to put an end to any further proceedings un-
der the commission had, with the consent and approbation of the bank-
rupt, the plaintiff, “ and the several creditors, whose hands and seals
tº were thereunto subscribed and affixed,” and also of the commission-
ers, agreed to pay and discharge all sums of money due from the
bankrupt, &c. such demand to be first verified before a Master in Chan-
cery, on oath, if required by the defendant, or to give security for the
payment thereof to the satisfaction of the plaintiff" and the rest of
“ the creditors” within one month from the date thereof. By the
deed it was agreed that the said commissioners should settle and as-
certain on oath as commissioners, the plaintiff’s bill of costs as solicitor
under the commission, and also for his trouble as assignee within the time
aforesaid ; and that the amount thereof, together with the whole of
his debt and demand proved under the said commission, as well as
his mortgage on the Hope and Anchor should be secured to be paid to
the satisfaction of the plaintiff within one month, the defendant
also agreed to indemnify and save harmless the plaintiff, his heirs,
&c. from all costs, damages, &c, respecting the staying of the pros-
ecution of the said commission, &c. Both the plaintiff and the de-
fendant agreed to indemnify the commissioners : and “the several
“ persons, whose names were thereunto subscribed and seals affixed,”
being the creditors of the said I. Bolton, to wit, J. F. &c. (naming
them again) agreed to accept the security of the defendant, and not
to commence any suit against the plaintiff or the defendant on ac-
count of any debts from the bankrupt or the plaintiff as his assignee,
or touehing the said commission, &c. Then followed a covenant by
the defendant to fulfil the agreement on his part : and a covenant by
the plaintiff, to convey the bankrupt’s estates to the defendant,
or to such person as he should appoint, *and to account for all mon-
ies received by him, and to join in any application for a supersedeas
as soon as the agreement should be carried into execution by the le-
fendant : in which latter “ the creditors, to wit, J. F.” (naming
them again) agreed to join. It was then averred in the declaration
that at the time of making the above agreement, the sum of 155l.
13s. 3d, was due from the bankrupt to the plaintiff; that that debt
had been proved under the commission, and that the plaintiff was at
all times ready to verify it on oath, if required; that after the mak-
ing of the agreement, the three commissioners settled and ascertained
on oath as commissioners the plaintiff’s bill of costs under the com-
mission, and ascertained that the sum of 911. 3s. 9d, was due to the
plaintiff for his bill of costs; and that the further sum of 1641, 5s. 1d.
was due to the plaintiff, on mortgage on the Hope and Anchor ; which
sums amounted together to 411!. 2s. 1d. Two breaches were then
assigned ; one, that the defendant had not given security to the sat-
$ 519
456
of Bankrupts and their Assignees. Epany ii.
#520
isfaction of the plaintiff, for the payment of the said sums of money,
amounting to 4, 1.2s. 1d. ; the other that he had not säved the plain-
tiff harmless from all costs, damages, &c. respecting the staying of
the prosecution of the said commission, &c. for that the plaintiff had
lost and expended 40l. in and about the staying of the prosecution
of the said commission, &c. - -
To this declaration there was a general demurrer. • *
But the court decided that the agreement was not illegal, it having
been made with the consent of all the creditors. That it appeared
by the different parts of the deed that all the creditors were parties
to it; the words, “the creditors,” which mean all, occurring in dif-
ferent places, and the words, to the “satisfaction of the plaintiff and
“the rest of the creditors,” occurring in another instance. And that
the last objection was not warranted in fact; because the averment
was not that the commissioners had ascertained what was due on the
mortgage as well as for the bill of costs; but the latter sentence was
distinct from the preceding one, and was only an averment by the
plaintiff, that in fact so much was due to him on the mortgage. On
the general question, Lord Kenyon, Ch.J. said, “This seems to be a
“fair agreement, and not contrary to the policy of the bankrupt.
“laws. The object of those laws is to have an equal distribution of
“the bankrupt’s effects among his creditors : that will not be defeat-
“ed by a friend of the bankrupt undertaking with the consent of all the
“parties concerned, not to divide among the creditors a fund (which
“ was probably *insufficient for that purpose,) but to pay to everylcred-
“itor his full debt. And if the creditors are to receive the whole
“ amount of their demands, it would be monstrous to say that the
“bankrupt’s estate shall still be torn in pieces by the expense of the
“commission.”
Lawrence, J. “This case is very distinguishable from that of Ne-
“ rot v. Wallace. It was there intended that the bankrupt should
“ receive his certificate without making a disclosure of his effects,
* and the consideration of the promise was the suppressing of the
“bankrupt’s examination, which was to be gone into for the pur-
is pose of ascertaining, among other things, whether or not he was
“entitled to his certificate.”—Judgment was accordingly given for
* the plaintiff.
*# a
CHAPTER, XI:
of ExECUTors AND ADMINISTRAtoRš.
, , THE subject of the present chapter will be considered in the
following order :
1. Of an Ea:ecutor’s and Administrator's Right to the Debts and
Contracts of the Testator or Intestate; and of Actions by them
in respect thereqf,
2. of an Executor’s or Administrator's Liability to be sued upon
Contracts made by the Testator or intestate. -
3. of an Executor's Liability for Funeral Expenses.
4. Of a Promise by an Executor to pay the Debt, &c. of his Testà.
tor.
5. of a Debtor making his Creditor Executor; et vice versa.
6. Of an Earecutor de son tort,
?. of an Executor's Liability to be sued for a Legacy:
: - « e * * ~ * • * - * * x - i , • * * # * ... ".
*i. Of an Executor's and Administrator's Right to the Debts and 523
Contracts of the Testator or Intestate t and of fletions by them
in respect thereof.
, Ah exécutor or administrator, represents the persons of his testa-
tor or intestate as to all his personal contracts; and therefore may , , , º
regularly maintain any action for the breach thereof which the testa- %. Co. fit.
º - tº ſº • * * * * 3. Baca
tor or intestate himself might have done, if living.(a) - Ab. tit. Exec. -
So, if money be payable to B. without naming his executor, yet his ...”
... * * º º ministrators,
executor or administrator shall have an action for it.(b) N.
So, if money be payable to A. or his assignees, his executor shall § %.
take it; for he is assignee in law.(c) ºt.º:
So, if a man having 1,000l. of B.’s money, agrees that so long as he Co. #: 209, .
has the money in his hands he will pay 100l. annually to B., his ex- (c) Hob, 9,
Won: P. [5 8]
458
Of Executors and Administrators. [PART II.
(d) 1 Rol. Ab.
913. 1. 15.
Sty. j40. But
such a con-
tract would
now be con-
sidered as us-
urious. See
the stat. 12
Ann. c. 16.
Com. Dig. tit.
Usury, A.
(e) 2 Ventr.
249. 1 Leo.
316.
(f) Lamine
v. Dorrel, 2
Ld. Ray.
1216.
(g) 1 Salk.
27.
# 523
(h) 2 Lord
Ray. 1210.
See also 4
Burr. 1986.
where Lord
JMansfield ex-
pressed his as-
sent to this
case, and his
disapproba-
tion to the
preceding
case of Jacob
W. Jällen,
ecutor shall have an action for it; for it appears, that it was intend-
ed for the interest of the 1,000l. which the executor shall have.(d)
So, if money is awarded to B. and that he shall release ; the exec-
utor of B. shall have the money, and make the release, though his
testator died before the day of payment.(e)
Where a person who has no right to administer to an intestate, ob-
tains letters of administration to him, and sells his property, if his ad-
ministration is repealed, and a fresh one granted to the person legally
entitled to administer, the latter may recover from the former the
money for which he sold the intestate’s property in an indebitatus as-
sumpsit for money had and received.(f)
So, in the case of Jacob v. Millen,(g) which was an action of indebi-
tatus assumpsit for money had and received to the plaintiff’s use.
Upon the trial, the facts proved were as follow ; H. having letters of
administration, appointed the defendant by letter of attorney to re-
ceive money owing to the intestate, who accordingly received the
same, and paid it to the administrator; afterwards a “will appearing,
the letters of administration were called in, and repealed by citation,
and the executor brought an indebitatus assumpsit against the defend-
ant for money had and received to the use of the plaintiff. To this
action two objections were made, 1st. That the defendant acting on-
ly as attorney for him that was in fact administrator, it was the re-
ceipt of the administrator, and not of the defendant; 2dly. That it
ought to be a special assumpsit, and not a general indebitatus; for the
money being received by special authority, and that expressly to the
use of another, this express intent suspends and hinders the operation
of law, and the raising of an implied contract to a third person: Sed
non allocatur; “for the administration was merely void, and conse-
“quently the administrator could give no authority, and so the attor-
“ney acted without authority; and then there is nothing to hinder
“ the raising an implied contract, and charging the defendant by inde-
“bitatus assumpsit to the executor.” Judgment was accordingly giv-
en for the plaintiff.
But in the case of Pond v. Underwood,(h) which was also an inde-
bilatus assumpsit brought by the plaintiff Emanuel Pond as executor
of Charles Pond, deceased, for money received by the defendant ow-
ing to the testator for wages (he being a seaman) after the testator’s
death. On the trial it appeared in evidence that before the will was
found, administration, &c. was granted to Anne Pond, a sister of
Charles Pond, and that she made a warrant of attorney to the defend-
ant to receive this money, being 211., by virtue of which warrant he
did receive it, and paid it to flnne before any notice given of this
will. And by the direction of the Lord Chief Justice Holt, before
whom the cause was tried, the plaintiff was nonsuited: for his Lord-
ship said, “though all acts done by an administrator where there is
“a will, are void, and such an action in this case would lie against
CHAP. XI.] Of Executors and Administrators.
453
sº-
“...Anne Pond; yet it is hard to make the defendant liable, he having
“paid the money over to the administrator, before he knew of the
* Will.”
So, payment of money to an executor who has obtained probate of
a forged will is a discharge to the debtor of the intestate, notwith-
standing the probate be afterwards declared null and void, “and
administration be granted to the intestate’s next of kin. A probate,
as long as it remains unrepealed, cannot be impeached in the tempo-
ral courts. º
Thus, in the case of Allen, administrator of Thomas Priestman,
* 524
otherwise Handy v. Dundas,(i) which was an action for money had (i) 3 Term
and received to the use of the intestate as administrator. And on Rep. 125.
the trial, a special verdict was found, stating in substance as follows:
The defendant as treasurer of the navy, was indebted to the intestate
in his life-time in 58l. 18s. 6d. for money had and received to his use.
Priestman died on the 2d of June, 1784; on the 13th of August, 1785,
one Robert Brown proved in the Prerogative Court of the Archbishop
of Canterbury, a forged paper writing, dated the 18th of May, 1784,
purporting to be the last will of Priestman,'otherwise Handy; whereby
he was supposed to have appointed Brown the sole executor thereof;
and a probate of that supposed will issued in due form of law, under
the seal of that court on the same day in favour of Brown. The de-
fendant not knowing the will to have been forged, and believing
Brown to be the rightful executor, on Brown's request paid him 58l.
138. 6d. being the whole balance then due from the defendant to
Priestman. On the 21st July, 1787, Brown was called by citation,
at the suit of John Priestman, the father, and next of kin of the decea-
sed, in the Prerogative Court of the Archbishop of Canterbury, touch-
ing the validity of such supposed will ; and such proceedings
were hereupon had in that court, that the will and probate were de-
clared null and void; that Thomas Priestman died intestate ; and
that John Priestman the father was his next of kin. And on the 31st
of March, 1788, letters of administration of the goods, &c. of Thomas
Priestman were granted by that court in due form of law to the plain-
tiff as attorney of John Priestman.
The court determined that the payment was protected by the pro-
bate ; and accordingly gave judgment for the defendant.
.Ashhurst, Justice, said, “I am of opinion that the plaintiff has no
“ right to call on the defendant to pay this money a second time, which
“ was paid to a person who had at that time a legal authority to re-
“ ceive it. It is admitted that if he had made this payment under
“ the coercion of a suit in a court of law, he would have been protec-
“ted against any other demand for it; but I think that makes no dif-
“ference. For as the party to whom the payment was “made had such
“authority as could not be questioned at the time, and such as a court
# 525
45ſ).
£f Executors and flaministrators. [PART II
“ of law would have been bound to enforce, the defendant was not ob-
“liged to wait for a suit, when he knew that no defence could be made
“to it; this therefore cannot be called a voluntary payment. This
“is different from payments under forged bonds or bills of exchange ;
“for there the party is to exercise his own judgment, and acts at his
(k) Cona. Dig.
tit. Pleader,
2 : ). orie Tol-
ler’s Execu-
tor, 446. 2d
edit.
“ peril : a payment in such a case is a voluntary act, though
“perhaps the party is not guilty of any negligence in point of fact.
“But here the defendant acted under the authority of a court of law;
* every person is bound to pay deference to a judicial act of a court
“having competent jurisdiction, Here the spiritual court had juris-
“diction over the subject matter; and every person was bound to
“give credit to the probate till it was vacated. The case of a pro-
“bate of a supposed will during the life of the party may be distin-
“guished from the present; because during his life the Ecclesiastical
“Court has no jurisdiction, nor can they inquire who is his represen-
“tative: but when the party is dead, it is within their jurisdiction,
“Besides, the distinction taken by the defendant’s counsel between
“cases where a will is set aside on an appeal, or on a citation, seems
“to have some foundation; in the former, the original sentence is as
“if it had never existed; in the latter the will is only repealed, and
“all acts under it till the repeal are good. But the foundation of my
“opinion is, that every person is bound by the judicial acts of a court
“having competent authority; and during the existence of such judi-
“cial act, the law will protect every persen obeying it.”
Where there are several executors or administrators, they have a
joint and entire interest in all contracts of the testator or intestate;
and therefore they must all join in an action thereon ; although some
may have omitted to prove the will, or have even refused before the
ordinary.Uk) . . . . . . . .
[As where one of two executors having alone proved the will, had
received a debt due to the testator, which by his will was appropri.
ated to the payment of specific legacies to his grandchildren, with
interest thereon, and afterwards permitted the money to be lent out
to a third person, by whom it was paid to A. ; A, pn being applied to
by the executor, acknowledged that he had received the money,
and that it belonged to the testator's grandchildren, but refused to
pay it over to the executor. Held, that both executors might join in
an action brought to recover the money against A. ; Held, also, that
it does not amount to a devastawit, if an executor lends out on pri-
vare security money belonging to the testator, but not wanted for the
immediate uses of the will, provided he exercises a fair and reason-
able discretion on the subject. Webster et al. v. Spencer, 3 B.
Bayley, J. “An executor derives his title, not from the probate, but
from the will, and a probate granted to one executor enures to the
CHAP. XI.] Of Earecutors and Administartors. 461
benefit of all ; and all must join in an action brought in that charāc-
ter. It seems to me, that if we can trace the money from the execu-
tors to the defendant, who received it, knowing it to be money of the
testator, that it still remains assets, recoverable by the executors,
there may be many cases, in which it is the duty of an executor to
lend out money belonging to the testator.”]
But where several are named, and one only proves the will and
acts, it is said,(l) that one may sue alone, after the others have re- (1) Per Bul-
ler. Just. 4
nounced. & Term Rep.
565. See also
In an action by an executor, or administrator upon a contract made *, *
tº º tº $º tº g ; : t 446.
with the testator, or intestate, the plaintiff must be *described in his cutor, # 526
representative character of executor or administrator.(m) (m) Com.
Dig. tit. Plea-
der, 2 D. 1.
But for money due to the testator in his life-time, but received af-
ter his death, the executor may declare either in his own right, or as
executor. And in an action for the recovery thereof the defendant
cannot set off a debt due to him from the testator. 77) Willes?
Thus, in the case of Milisent Shipman v. J. Thompson,(n) which Rep. 103. See
wº ... also Smith v.
came before the Court of Common Pleas on a case reserved at the tri- i.
al before Mr. Baron Fortescue which stated that the plaintiff’s late #", º,
husband by his will made the plaintiff and Dr. Morgan (since deceas- †: }. *.
ed) his executors. In his life-time, he had appointed the defendant S. P.
his steward by letter of attorney, who after the testator’s death recei-
ved of several tenants several sums of money due to the testator in
his life-time. The plaintiff brought this action in her own name, not
naming herself executrix, for the money so received. The defendant
gave a notice of set-off, for several sums due from the testator to him,
which the judge would not permit the defendant to set off.
; The questions reserved were, 1st. Whether the plaintiff should
not have declared as executrix ; 2d. Whether the defendant ought
not to have been permitted to set off the money due to him from the
testator.
The court, after argument, gave judgment for the plaintiff on both
points. And Fortescue, Baron, said, “The true distinction I think,
“is this, that where the thing sued for is assets in the hands of the exe-
“cutor or administrator before the recovery, or where the cause of
“action arises in the executor’s own time, and never did arise to the
“testator, there the executor may bring the action either in his own
“name or as executor. And this is laid down as law in the case of
* Jenkins and wife v. Plombe, Salk. 207., but better and more fully
“reported in 6 Mod. 92. 181. That was an action brought by the
“husband and wife as executrix upon an indebitatus assumpsit for
“money had and received by the defendant to their use as executrix:
*it is true that the judgment of the court was only that upon being
462
Of Ea:ecutors and ſldministrators. [PART. II.
* 527
* 528
“nonsuit the plaintiffs ought to pay costs: but the reason of the judg-
“ment was because they might have *brought the action in their own
“name, and not as executrix; for wherever an executor may have
“the action in his own name he shall pay costs. And the case of
“Eaves v. Mocato, Salk. 314. was cited there, and this difference ta-
“ken, that there were several counts by a plaintiff as executor, one
“whereof was an insimul computasset, and being nonsuited he paid
“no costs, because there was no new cause of action but a new ac-
“tion ascertaining the ancient cause, which is still a debt of the tes-
“tator’s. And in the case of Jenkins v. Plombe, as appears from
“Salkeld, this distinction of insimul computasset is also taken; and
“it was said, that if the defendant received this money by the ap-
“ pointment of the plaintiff, it was assets immediately, if without his
“consent, yet the bringing of the action is such a consent that upon
“judgment it shall be assets immediately before execution, which
“otherwise it would net be until after execution; and the reason
“is because it is recovered against a person who never was indebt-
“ed to the testator, and the original debt was discharged.
“To apply this to the present case : here is money received by
“the defendant since the testator’s death, and therefore it could not
“be received to the use of the testator, but must be received to the use
“of the executor. The executor has consented by bringing an action,
“and the money is assets immediately upon the judgment. It is
“quite a new debt created from the defendant to the executor since
“ the death of the testator, and a new cause of action which was not
“ subsisting before. The defendant was never indebted to the tes-
“tator for this money and the original debtors, the tenants are dis-
“charged. No doubt had the action been brought against the ten-
“ants, it must have been brought against them by the plaintiff as exe-
“cutrix, because it was a debt as to them subsisting in the testator’s
“life-time, and no new cause of action arising to the executrix.
“As to the set-off, we cannot consider the convenience or the in-
“ convenience on one side or the other, but must go according to the
“act; for the statute 2 Geo. II. c. 22. s. 13. says, if either party sues
“ or is sued as executor or administrator, where there are mutual
“debts between the testator or intestate and either party, one debt
“may be set against the other; so that it is confined by the statute
“expressly to cases where the suit is as executor or administrator.
“And therefore in the present case, the suit not being as executor, I
“think it is not within the statute, and that the debts due from the
“testator to the defendant cannot be set off against “this plaintiff in
“an action brought by her in her own name and not as executor.
“And supposing this to be so, it was urged as one reason why the ac-
“tion here ought to have been brought by the plaintiff as executrix :
“but this statute will not alter the law as to that point from what it
“ was before ; and if the statute has no t remedied all the inconveni-
CHAP. XI.] Of Executors and Administrators. 563
“ences, we must take it as it is, and cannot (I think) extend it far-
“ther. So the postea must be delivered to the plaintiff, and she must
“have her judgment.”
[An administrator cannot have an action for a breach of promise of
marriage to the intestate, where no special damage is alleged. Chain-
berlain Administrator v. Williamson, 2 M. & Selw. 408.
Lord Ellenborough, Ch. J. “The general rule of law is, actio per-
sonalis moritur cum persona ; under which rule are included all ac-
tions for injuiries merely personal. Executors and administrators are
the representatives of the debts and goods of the deceased, but not of
their wrongs, except where those wrongs operate to the temporal in-
jury of their personal estate. But in that case the special damage
ought to be stated on the record ; otherwise the court cannot intend
it.”] s:-- -
sº-º-e
2. Of an Ea:ecutor’s or Administrator's Liability to be sued on Con-
tracts made by the Testator or Intestate.
An executor or administrator is answerable for the contracts and
agreements of his testator and intestate, as far as he has assets, though
he be not expressly mentioned therein.(0) (o) Bac. Ab.
As if goods be sold and delivered to 4, who dies, not having paid i.
for them, and leaves B. his executor, the vendor may maintain an ac-ministrators,
tion of assumpsit against the executor for the amount of the goods so * *P*
sold.(p) (p) Pi. Com.
So, it hath been resolved, that there is no difference between a pro- 182. 1 Sid.
mise to pay a debt certain and a promise to do a collateral act, which #. | *.
is uncertain, and rests only in damages ; for wherever the testator 200, 201.
himself would have been liable to an action, his executor or adminis-
trator shall be liable also ; except, indeed, upon such contracts or
agreements which require something to be performed by the testator
© gº q) Cro. Jac.
in person, because in such case the executor cannot perform it.(?) , 404. 417. 571.
If therefore a man promises another, that in consideration that he Jon. 16.
ſº * º e {^ Palm. 329.
will marry his daughter, to give him as much as he hath given or Cro. Jac.
should give with any of his other daughters, if after he gives such a ; ºl.
sum with another of his daughters and dies, an action upon this as- §§ fluist.
sumpsit lies against the administrator, notwithstanding it be collat- 385. , ,
(r) 1 Rol.
eral.(r) Abr. 14, pl. 3.
So, if ºff, buys goods of B., and because B. distrusts the payment of
.d., J. S. promises that, if 4. does not pay him at such a day, he himself
will pay it ; J. S. dies, and the money is not paid at "the day, the ex- # 529
ecutors of J. S. may be charged in an action upon this promise, though (,) a Rol. Tº
it be collateral.(s) Abr. 14. pl. 6,
464
of Ezecutors and Administrators. [PART. II,
(t) Ibid. pl. 7.
JHob. 216.
(v) Sty. 158.
(a) Holt. 309.
(g) I Rol.
Abr. 24 pl.
33. 9 Co. 94.
1 Dam. Abr.
55. But see
2 Bulstr. 278.
3 Leon 67.
1 Verit. 152,
* 530
So, in an action upon the case(t) against an executor, if the plain-
tiff declare, that whereas he had sued an action against B. the de-
fendant’s testator, whereupon B., in consideration that the plaintiff
would forbear to prosecute the said writ further against him, promised
to pay 50l. to the plaintiff; the action lies against the executor upon
this promise, because such promise is not collateral, for that an ac-
tion of debt would have lain against the testator upon this promise.
So, in case against an executor,(w) the declaration was of a pro-
mise by testator to deliver certain goods in his possession to the plain-
tiff upon request. . It was objected that, the testator’s promise was,
that himself would deliver the goods, and not that his executor should,
and that he would do it on request; but no request appears to have
been made to the testator. But Per Rolle, Ch. J. an executor may
be charged on a collateral promise if there was a breach of it in the
testator’s life-time, and the request here is good and goes to all.j
8. Of an Ea:ecutor’s Liability for funeral Expenses.
An executor is not liable to pay for funeral expenses, unless he
personally contracts with the undertaker ; because this is a charge
which would make him liable de bonis propriis.(a)
*º-º-e
4. Of a Promise by an Ea:ecutor to pay the Debt, &c. of his testator.
If an executor or administrator for a good consideration promise to
pay the debt of his testator or intestate, he is liable de bonis pro-
priis.(y)
Thus. (z) if A. (to whom the testator was indebted) comes to the
executor, and says that he intends to sue him for the debt;"upon which
the executor promises in consideration that the plaintiff will forbear him
for a reasonable time he will pay him, and A. forbears to sue him for a
reasonable time; this is a good consideration to charge the defendant
in an action upon the case, out of his own estate without assets ; for
by this promise it is intended as well to forbear to sue the executor
as to forbear the debt, and a forbearance of suit is a good considera-
tion without assets at the time of the promise. -
So, if a man makes a contract with J. S. and dies intestate, and his
administrator, in consideration of forbearance, &c. promises to pay,
-ms
(y) In what cases the promise of an executor to pay the debt of his testator
must be in writing by virtue of the statute of frauds. Wide ante, vol. 1. part.
I. C. 4. S. 1. tº
ÜHAP. XI.] of Executors and Administrators,
465
&c. this is a good consideration, though the administrator was not
chargeable upon this contract at common law, for he was chargeable
in conscience.(a) * * ,--
So, where a surety paid a sum of money for his principal, and after
the death of the principal his executor promised the surety, that if he
would forbear to sue for such a time, he would pay the money. It
was moved in arrest of judgment, that this consideration was void :
but per Curiam, the action well lies against the executor, because he
was liable in equity.(b) - º
So, where a person being executor, in consideration the plaintiff
would account with him, promised to pay the plaintiff what should be
found owing to him from the testator: it is said,(c) that this was held a
good consideration, though the executor had no assets because there
was an act done, viz. accounting at the executor’s request.
But in the case of Secar v. Atkinson, administratrix of 4thinson,(d)
(b) Scott v.
Stevens, Sid.
89. Lev. 71.
which was an action of assumpsit ; and the declaration consisted of % 1 H. St.
four counts. The first for goods sold and delivered to the intestate ;
second, quantum valebani; third, money paid to the use of the intes-
tate : fourth, that the plaintiff accounted with the defendant as admin-
istratria, as aforesaid, of and concerning divers sums of money, &c.
owing from the intestate to the plaintiff, and upon that account the
intestate was found in arrear and indebted to the plaintiff, &c. and
being so found in arrear and indebted she, the *said defendant as ad-
ministratriæ as aforesaid, in consideration thereof promised, &c.
To this declaration it was objected that there was a misjoinder of
action; for that the judgment on the three first counts would be de
bonis testatoris, and on the latter, de bonis propriis because in the last
count the defendant is charged in her own right. And in support of
this objection was cited the case of Hawes v. Smith. But the court
overruled the objection ; and Heath, J. delivered the opinion of the
court as follows: “This is an action brought againstan administra-
“trix for a debt due from the intestate. And unquestionably, if the
“judgment were to be, as it has been contended, in one instance de
* bonis testatoris and in the other de bonis propriis, the declaration
“would be bad, but we are of opinion, that the objection is not found-
“ ed in truth, and that the defendant is charged as administratrix on
* all the counts. The authority which was chiefly relied on, was an
* anonymous case, in Ventris, more correctly reported in 2 Levinz,
“by the name of Hawes v. Smith, which was a writoferror, on an ac-
“tion in this court against an executor, in which the plaintiff declared
“on an account stated at the request of the defendant : the judgment
... (a) 1 Roſ. Abr. 28. pl. 56. Mo. 702, pl. 977. Cro: Jac. 47. Yelv. 55;-But see
Cro. Eliz. 804. For more concerning promises by executors in consideration
&f forbearance, vide pest, vol 2. part III. chap. 14. - -
(c) Wide Hawes v. Smith, 2 Lev. 122; f Ventr. 268. S. C. See also Free-
man, 464. pl. 635, 3 Keb. 336. 417. Het. 8, 11. Cro. Car. 70.sed. vide next
Case.
We E. F. [59]
%. 531
466
of Executors and Administrators. [PART. II.
(e) 7 Term
Rep. 350. n.
a. See also
3 Ley. 67.
“ was for the plaintiff, de bonis propriis ; and on error brought, the
“judgment was affirmed in the King’s Bench, it being holden not to
“be error, because the plaintiff was not bound to account with the ex-
“ecutor, and yet did account at the request of the executor ; there-
“fore a good consideration was raised. But it is very difficult to
“reconcile that case with any true principle of law. The plaintiff was
“bound in equity and conscience to account, the defendant might
“ have had a writ of aceount against him, by the statute of 31 Ed.
“ III. as appears from Lord Coke's Commentary on the Statute of
“Westminster the second. It is also said in the case of Hawes v.
“Smith, that the promise was in consideration of forbearance to
“sue; but so far is it from being like forbearance to sue, that the
“defendant desires to account, and facilitates the bringing a suit, by
“ascertaining the sum due. It was also said that the plaintiff did not
“ account at the request of the defendant, and so there was no con-
“sideration for the promise ; but it is expressly stated that they ac-
“ counted together, and that the defendant promised as administra-
“trix. This is the common mode of declaring against executors and
“administrators, to save the statute of limitations : but if it were to
“be considered as making them personally liable, I do not know who
“ would ever take out administration.
* *So, if an executor without any consideration, promises to pay the
debt of his testator, when he has no assets, such promise is nudum,
pactum, ea quo non oritur aetio.
Thus, in the case of Rann and another, executors of Mary Hughes,
v. Issabella Hughes, administratrix of John Hughes, in error :(e) The
declaration stated that on the 11th June, 1764, divers disputes had
arrisen between the plaintiffs’ testator, and the defendant’s intestate
which they referred to arbitration; that the arbitrator awarded that
the defendant’s intestate should pay to the plaintiffs’ testator. 8391.
That the defendant’s intestate afterwards died possessed of effects
sufficient to pay that sum ; that administration was granted to the
defendant; that Mary Hughes died, having appointed the plaintiffs
her executors; that at the time of her death the said sum of 8391.
was unpaid, “by reason of which premises the defendant as admin-
“istratrix became liable to pay to the plaintiffs as executors the said
“Sum, and being so liable, she in consideration thereof undertook
“ and promised to pay,” &c. On this declaration a verdict was found
for the plaintiffs, and a general judgment was entered in the King’s
Bench against the defendant de bonis propriis. This judgment, how-
ever, was reversed in the Earchequer Chamber ; and a writ of error
was afterwards brought in the Hotus eqf Lords ; where after argument
the following question was proposed to the Judges by the Lord Chan-
CHAP. XI.] Of Executors and Administrators.
467
cellor, “Whether sufficient matter appeared upon the declaration to
“warrant after verdict the judgment against the defendant in error
“in her personal capacity.” upon which the Lord Chief Baron Skyn-
ner, delivered the opinion of the Judges to this effect:-It is undoubt-
edly true that every man is by the law of naturebound to fulfil his en-
gagements. It is equally true that the law of this country supplies no
means nor affords any remedy, to compel the performance of an agree.
ment made without sufficient consideration; such agreement is nudum
pactum ea quo non oritur actio 3 and whatsoever may be the sense of
this maxim in the civil law, it is in the last mentioned sense only that
it is to be understood in our law. The declaration states, that the
defendant being indebted as administratrix promised to pay when
requested, and the judgment is against the defendant generally. The
being indebted is of itself a sufficient consideration to ground a prom-
ise, but the promise, must be coextensive with the consideration un-
less some particular consideration of fact can be found here to war-
rant the extension of it against the defendant “in her own capacity.
If a person indebted in one right in consideration of forbearance for
a particular time promise to pay in another right, this convenience
will be sufficient consideration to warrant an action against him or
her in the latter right: but here no sufficient consideration occurs"
to support this demand against her in her personal capacity; for she
derives no advantage or convenience from the promise here made.
For if I promise generally to pay upon request what I was liable to pay
upon requestin another right, I derive no advantage or convenience
from this promise, and therefore there is not sufficient consideration
for it. But it is said that if this promise is in writing, that takes away
the necessity of a consideration, and obviates the objection of nudum
pactum, for that cannot be where the promise is put in writing; and
that after verdict, if it were necessary to support the promise that it
should be in writing, it will after verdict be presumed that it was in
writing: and this last is certainly true; but that there cannot be nu-
dumpactum in writing, whatever may be the rule of the civil law,
there is certainly none such in the law of England. His Lordship
concluded by saying, “ that all his brothers concurred with him, that
“ in this case, there was not a sufficient consideration to support this
“ demand as a personal demand against the defendant, and that its
“being now supposed to have been in writing makes no difference.
“ The consequence of which is that the question put to us must be
“ answered in the negative.” -
The House of Lords affirmed the judgment of the Exchequer Cham-
ber. -
So, if B. as administrator to J. D. is indebted to 4. in 20l. and upon
this B. in consideration that administration is granted to him and
that he has assets in his hands, assumes and promises to pay the debt
# 583
46& of Executors and Administrators, [PART II,
tam cito as any debt due to the intestate comes to his hands to the
value of the debt, and after such debt comes to his hands, yet no ac-
tion lies upon this promise, for here is no consideration to maintain
this action by which the administrator should be charged out of his
own estate, for here the consideration is not to forbear to sue, or any
other consideration.(f) - * -
(f) 1 Rol.
A br. 24. Pl. º º a
32. and see So, in the case of Forth and others v. Stanton,(g) which was an ac-
J. Dan, 52. , tion of assumpsit, wherein the plaintiffs declared that one Robert
%.' * Stanton, the late husband of the defendant was indebted to John
º Neve and Timothy Alsopp in 100l. for beer sold by them to him, and
being so indebted, the said Robert Stanton died; after whose death
$ 534 *the defendant took into her hands goods and chattels of the said
* * * Robert Stanton, of the value of 100l. and administered those goods
and chattels, as executor of the will of the said Itobert, and that af-
terwards the defendant had paid 40l. parcel of the said 100l. to the
said Neve and Alsopp. And whereas the said Weve and fllsopp af-
terwards had assigned to and appointed the plaintiffs to receive of the
defendant 60l. residue of the said 100l. to the use of the plaintiffs,
whereof the defendant had notice given to her: whereupon the de-
fendant, in consideration that the plaintiffs, at the special instance and
request of the defendant would accept the defendant to be their debt-
or for the said 60l. undertook and promised the plaintiffs to pay them
the said 60l. And the plaintiffs aver that they had accepted the said
defendant to be their debtor. And they also declared upon an insi-
mºul computasset for 60l. more. a
It was objected that the declaration was insufficient, because there
is no good consideration to found the promise ; and it was argued
that the defendant before the promise did not owe any thing to the
plaintiffs, but to Weve and Alsopp ; and by their assignment, they did
not transfer any property or interest in the debt, being a chose in ac-
tion, but only gave an authority to the plaintiffs to receive it, if the
defendant would pay it. But if the defendant would not pay it, the
plaintiffs could not bring any action against her, but Neve and Alsopp
must have sued for it. It is true, indeed, that if the defendant had
paid the 60l. to the plaintiffs, she would be discharged against the
said Weve and Alsopp ; but in this case the defendant refused to
pay ; therefore Neve and Alsopp ought to bring the action against her,
and not the plaintiffs, who have not any interest in the debt. And
this case is no more, than if I promise a stranger, to whom I do not
owe anything, that if he will accept me to be his debtor for 60l. I
will pay it to him, yet this is but a nudum pactum, because I was not
indebted to him before. And my promise to pay, if the other will
receive it is nothing but a mere voluntary promise, which does not
bind me at all. And in the present case, if the promise should be
good, the defendant would be charged de bonis propriis, where she
CHAP. XI.] of Executors and Administrators,
469.
was chargeable to Neve and Alsopp only de bonis testatoris; and yet
here is no consideration at all so to charge her ; and of this opinion
was the whole court. And judgment was given for the defendant.
So, in the case of Parker v. Baylis and wife,(h) which was an *ac-
tion of assumpsit, wherein the plaintiff declared against William Buy-
lis and Mary his wife, the latter being administratrix of Elizabeth
Stattard deceased ; for that whereas Elizabeth Stattard died intes-
tate possessed of South-Sea stock which she held in trust for the
plaintiff, and upon which certain dividends were due, in considera-
tion that the plaintiff at his own expense would procure administration
to be granted to Mary Baylis as the next of kin to Elizabeth Stattard,
and would furnish evidence to enable the defendants to receive the
dividends, the said William Baylis and Mary his wife, she being ad-
ministratrix, as aforesaid, promised to pay over to the plaintiff the
amount of the dividends when received.
The court held, that the consideration stated was insufficient to
support the promise, and that the dividends never made part of the
intestate’s estate.
Lord Eldon, Ch.J. said, “The facts of this case are, that the plain-
“tiff being entitied to a certain sum of 3 per cent. South-Sea an-
“nuities standing in the name of Elizabeth Stattard, and also to
“ the dividends which had accrued during her life, was desirous of
“ obtaining possession of them through the medium of an administra-
“tion. The consideration for the promise stated in the declaration
... is, that the plaintiff undertook to procure administration to Mary
ºf Baylis as next of kin, at his own expense, and also to procure evi-
“dence by which she should be enabled to receive the dividends.
“But this affords no consideration for the promise. Though Mary
“ Baylis was next of kin, it does not appear that she was to derive
“any peculiar benefit from taking out administration, and if the
“ plaintiff was desirous of placing some person between himself and
“ the South-Sea Company, it is very obvious that he ought to pay all the
“expenses attending that transaction.—Whatever dividends had
“ been received by the intestate in her life-time were part of the gen-
“ eral funds; and with respect to them the plaintiff is entitled to de-
“mand payment out of the assets, either as a specialty or simple
tº contract creditor, according as he may be possessed of security or
“ not. But the present action seeks ajudgment de bonis intestati, on
“the receipt of a sum of money by the defendants after the death of
... the intestate. The question is, whether Mary Baylis, who appears
... on this record rather in the character of trustee than in any other
“ character, (for the stock is not assets,) has so much relation to the
“intestate that her personal act of receiving this money though as a
“ trustee, shall give a general remedy to the cestui que trust against
“all the assets of the intestate in common “with the simple contract
* 535
(h) 2 Bos. &
Pull. 73.
# 586
470
6f Ezecutors and Administrators. [PART II.
(i) Pearson v.
IHenry, 5
Term Rep. 6.
Sed vide Bar-
ry v. Rush,
post. 538.
(k) 6 Term
Rep. 591.
# 53
7.
*
“ and specialty creditors P Not doubting that the plaintiff has abun-
“ dance of remedies, I am of opinion that he is not entitled to charge
“ the assets of the intestate with a demand founded on the receipt of
“ that which never was a part of the intestate's estate.” -
Heath, J. also said, “It seems admitted, that judgment must be
“given de bonis intestati in this case in the first instance. But there
“has been no default on the part of the intestate. The receipt of
“ dividends after the death of the intestate is the cause of action ;
“ and the promise of Mary Baylis is in consequence of that receipt.
“This promise will not bind her husband. And as the money never
“ was assets for payment of debts, non-payment in this case cannot
“bind the estate of the deceased.”
So, a submission to arbitration by an administrator is not an ad-
mission of assets; and if a sum of money is awarded to be due from
the intestate, without saying by whom it shall be paid, the adminis-
trator is not personally liable de bonis propriis, but only de bonis tes.
tatoris.(i) ... '
So, a power of attorney given by an executrix to act for her as ex-
ecutrix, does not authorise the accepting of bills of exchange to
charge her in her own right, for debts due from her testator.
Thus, in the case of Gardner v. Baillie,(k) which was an action of
assumpsit on a bill of exchange, drawn by the plaintiff on the 4th of
September, 1793, for 793l. 7s. 9d, on the defendant, by the name and
description of Mrs. C. Baillie, executria of J. B., accepted by E.
Thornton for, and on behalf of the defendant, it being averred that
Thornton was duly authorised to accept the same on the defendant’s
account. At the trial before Lord Kenyon, Ch. J. it was proved, on
behalf of the plaintiff, that Thornton, who acted under a letter of at-
torney from the defendant accepted the bill in question, which was
drawn and accepted for a debt due to the plaintiff from the defendant’s
testator, and evidence was offered to prove that the defendant had
paid other bills drawn on her by other creditors of J. Baillie, and ac-
cepted on her account by Thornton, who on those occasions also acted
under this power of attorney; but Lord Kenyon thought the evidence
inadmissible. A verdict however was taken for the plaintiff, for the
amount of the bill, with liberty for the “defendant to move to set it
aside and to enter up a nonsuit, if the court of King's Bench should
be of opinion that the plaintiff ought not to recover. º
The principal question in the cause was, whether Thornton had
power under this letter of attorney to accept bills of exchange for the
defendant; because, if he had, the verdict was right. By the letter,
after reciting that the defendant had been appointed executrix of J.
Baillie, who was entitled to considerable sums of money on mortgage,
CHAP. XI.] of Ea:ecutors and Administrators.
* 471
bonds, bills, notes, unsettled accounts, &c. the defendant appointed
Thornton her attorney, as executrix, to ask, demand, sue for and re-
ceive all sums, &c. “ which at the time of J. B.’s death were due to
“ him and which were then due to her as executrix:” in her name as
executria, to adjust and settle all accounts, differences, &c. wherein she
as executria, was interested ; to submit the same to arbitration, (if nec-
essary) and for that purpose in her name as executria to execute any
bond, &c. to execute for her and in her name, as executrix, assign-
ments of mortgages, receipts, releases, &c. for her, and in her name,
as executrix, and agreeabl y to the due course and order of law to pay
all debts, &c. due from her as executrix, whether on mortgage, bond,
bill, note, or otherwise ; and generally for her, as executrix, to do all
such farther acts for receiving debts and discharging the powers given
by the letter of attorney ; and giving full power to do and act" touch-
“ing and concerning all or any of the said premises as effectually to all
“ intents, constructions, and purposes whatsoever, as she as executric
“ could,”&c.
A motion was accordingly made to set aside the verdict and enter
a nonsuit ; but the counsel for the plaintiff contended that as Thorn-
ton was expressly authorised to receive and pay all sums due to and
from the defendant, to refer any matters in dispute between her and
any other person to arbitration, and generally to do all further and
other lawful and reasonable acts as to him should seem proper, he
had power to bind the defendant by accepting the bill in question on
her account, it being for a legal debt due from her as executrix.
For the defendant it was argued that the accepting of this bill by
Thornton was an excess of authority not warranted by the power, be-
cause it would charge her in her own right, whereas the letter of at-
torney only authorised Thornton to bind her as executrix, the letterbe-
ing cautiously drawn with that view. The court said that though they
had no doubt about the case yet as there was a similar cause (said to be)
depending in the Court “of Common Pleas(l) on the construction of
the same letter of attorney, it would be proper not to decide this case
until they had had an opportunity of confering with the judges of that
court on the subject. -
On a subsequent day Lord Kenyon, Ch. J. said, “there was no rea-
“ son why the court should any longer suspend their judgment in
“this case, as they were all clearly of opinion that Thornton had no
“ authority to bind the defendant by accepting the bill of exchange on
“her account, and consequently that the action could not be
“maintained. That they had consulted with the judges of the Court
“of Common Pleas, who authorised him to say that they concurred
“in this opinion respecting the construction of the letter of attorney,
“but that there were other circumstances in that case.” The rule
for a nonsuit was made absolute accordingly.
# 538
(l) Howard
v. Baillie,
the following
C3Sear
472 Of Beecutors and Administrators. [PART. iſ,
The case alluded to by the Court of King’s Bench, is Howard v.
º H. Bl. Baillie,(m) in which it was decided, that if a person, acting for an
executor under a power of attorney, thereby authorising him to trans-
act the affairs of the testator in the name of the executor, as executor,
and to pay, discharge, and satisfy all debts due from the testator,
accepts a bill of exchange in the name of the executor, for the amount
of a debt due to a creditor from the testator, and the executor after-
wards admits that the bill so accepted is for a just debt, and that it
ought to be paid, the executor is personally liable de bonis propriis.
So, if an executor bind himself by a personal engagement to per-
form an award, or if the submission to arbitration be a reference not
only of the cause of action, but also of the question whether he has
or has not assets, and the arbitrator award the executor to pay the
amount of the plaintiff’s demand, it is equivalent to determining, as
between the parties, that the executor had assets to pay the debt:
and the executor is concluded by the award; although it will not
operate as an admission in any other suit; and he may be attached
º V. for non-payment.(n)
Term Rep. te
691. [Where the executors of a deceased partner continued his share of
the partnership property in trade for the benefit of his infant daugh-
ter: held, that they were liable upon a bill drawn for the accommo-
dation of the partnership, and paid in discharge of a partnership debt ;
although their names were not added to the firm, but the trade was
carried on by the other partners under the same firm as before, and
the executors when they divided the profits and loss of the trade, car-
ried the same to the account of the infant, and took no part of the pro-
fit themselves. Per Curiam. The executors could not bind the in-
fant. At law they became the legal proprietors in respect of every
thing belonging to the trade; and consequently are liable to the lega}
debts. Wightman v. Townroe, et al. 1 M. & S. 412.]
*º-º-º:
5. Of a Debtor making his Creditor Ea:ecutor; et vice versa:
If a debtor appoint his creditor his executor, the latter is allowed
to retain his debt in preference to all other creditors of an equal de-
(o) Wentw. gree.(0)
Off. Execu-
tors, 91. Tol- • As tº. g
ler’s law of *So, if a debtor make his creditor and another person executors,
*** * and the creditor neither proves the will nor acts as executor, he may
3. c. 3.
* 539 maintain an action against the other for his demand on the testator.
(p) 3 Term Thus, in the case of 4. and J. Rawlinson v. Shaw, executor of Wood-
** ** house,(p) which was an action of assumpsit; and the eight first counts
thar. XI.j Of Executors and Administrators.
4%
in the declaration were on promises made by the testator; the last
count was on a promise by the defendant as executor. To the eight
first counts the defendant pleaded that Woodhouse, the testator, in his
life-time, to wit, on, &c. duly made and published his last will and
testament in writing, and thereof constituted and appointed the de-
fendant and J. Rawlinson, and thrée other persons, joint executors;
and soon afterwards died without altering or revoking it. And as
to the last count, that that promise and undertaking (if such were
made) was made by the defendant together with the said J. Rawlin-
son, and those three persons and not by the defendant alone. The
plaintiffs by their replication sāid that J. Rawlinson never proved the
will of Woodhouse, nor took upon himself the burthen of the execution
thereof, nor in any manner whatsoever ever accepted of the supposed
appointment of him the said J. Rawlinson to be an executor of the said
will, nor ever administered any goods or chattels which were of the
šaid Woodhouse, deceased, at the time of his death, as executor of the
last will and testament of the said Woodhouse. And as to the other
pleathey replied that the promise in the last count was not made by the
defendant together with J. Rawlinson, and the other three persons
as in the plea alleged.
To the replication to the first plea there was a general demurrer
and joinder in demurrer.
In support of the demurrer it was contended that the nomination
of the plaintiff as executor in the will of Woodhouse the testator ope-
rated as a suspension of his legal remedy, as he had not actually re-
nounced, though not to an extinguishment of the debt, or even to a
suspension of his remedy in a court of equity. If so, the plea is a
bar to the action, and the fact disclosed by the replication does not
vary the case. All the legal parties to a contract must by law sue
and be sued, which is sufficiently proved by the usual plea in abate-
ment where any of the parties are omitted “to be named ; and though
this rule has some exceptions with regard to defendants, it is uni-
versal as to plaintiffs. Now here, the plaintiff not having renounc-
ed, must in a court of law be considered as having all the legal qual-
ities of executor still attached to him, and therefore cannot sue the
defendant in his character of co-executor: for one executor cannot
sue his co-executor, the former being supposed in contemplation of
law to be equally in possession as joint tenant of all the testator’s as-
sets, Pent. Off of Ea'ecutors, 100 out of which he may pay himself:
and the effect of a judgment against an executor is rather to attach
on the property of the testator than on the person of the defendant:
In Co. Zit, 264 b. it is said, that if the obligor make his obligee his
executor, this is a release in law of the action. But the duty re-
mains for which the executor may retain. Wankford v. Wankford,
Salk. 299. Fryer v. Gildridge, Hob. 19. and g Show. 401. where it
is added that the debt is not extinguished, but only superseded, aſ
Wem. I, [60]
# 54t
474
of Ezecutors and Administrators. [PART. Ii.
* 541
to the executor. Plowden, 184, 5, gives the reason why the action is
gone, because in judgment of law the plaintiff is satisfied before ; for
if the executor has as much goods in his hands as his own debt a-
mounts to, the property in these goods is altered and vested in himself;
that is, he has them as his own goods in satisfaction of his debt, and
not as executor. If the case of Dorchester v. Webb, Sir W. Jones, 345.
be cited on the other side, it is distinguishable from the present; for
that case only shows that where the obligee had been made co-execu-
tor with another, and had renounced, the executor of the obligee might
sue the surviving executor. It is indeed given as a reason in that
case, that when an obligor makes the obligee and another his execu-
tors, and the obligee refuses, the debt is neither released nor discharg-
ed, and the obligee may sue the assets ; but that was an obiter dictum
not necessary for the decision of the case before the court; and there
too it must be taken that he had legally renounced ; and by the death
of the obligee the period of suspension had ceased, and the whole of
the property had gone into another channel, namely into the hands of
the surviving executor. But here the plaintiff has not legally re-
nounced.
The counsel for the plaintiff was stopped by the court; and Lord
Kenyon, Ch. J. said, “It is impossible to entertain the least doubt
“in this case. The argument is that if A. owe B. a sum of money
“and choose to make him his executor, though B. will not act, his
“legal remedy is extinguished. The proposition is too monstrous *to
“admit of any argument. If indeed the creditor had accepted of the
“executorship, and acted, there might perhaps have been something in it.
“But the facts disclosed by the replication positively negative that ;
“for it is there averred, that he never proved the will, nor took upon
“ himself the burthen of the execution thereof, nor in any manner
“whatsoever accepted of the supposed appointment to be an execu-
“tor, nor ever administered, &c. And notwithstanding this he is
“ now told that he cannot enforce the payment of his debt in a court
“of law. I should have been extremely sorry, to have found myself
“bound by authorities to accede to such a position ; and I am glad
“that none are found to warrant it, and that there is one direct authority
“ against it. There is no pretence therefore for this demurrer; and
“even if it could have been supported, it would be dishonest in the
* extreme.”
Buller, J. said, “The argument in su pport of this demurrer is fully
“answered by the plain words of the replication. The foundation of
“ the argument is, that this is an action in respect of property, and
“ that the plaintiff has possession of that property : but the replica-
“tion pointedly states that he never proved the will, nor in any man-
“ner whatever acted as executor, nor administered. Then if he has
GHAP. XI.] Of Executors and Administrators. 475
“not the possession of the property of the testator, he stands in the
“same situation as any other stranger, and may equally sue the per-
“son, who has legal possession of that property.” The court accord-
ingly gave judgment for the plaintiff. -
But if a creditor appoint his debtor executor, such appointment
shall operate as a release and extinguishment of the debt, on the prin-
ciple that a debt is merely a right to recover the amount by way of
action, and as an executor cannot maintain an action against himself,
his appointinent by the creditor to that office discharges the action,
and consequently discharges the debt.() Thus, if the obligee of a § Pide Tol-
* , ſº ler’s Execu-
bond make the obligor executor, this amounts to a release at law of tor, 348. b. 3.
the debt;(r) if several obligors be bound jointly and severally, and the 9:4,5:9.
obligee constitute one of them his executor it is an extinguishment (r) 8 Co. 136.
of the debt, and the executor is incapable of suing the other obli-
gors.(s) The debt is also released where only one of several executors (s) Went.
is indebted *to the testator, for one executor cannot maintain an ac- *
tion against another ;(t) and after the death of such executor, the sur- 11 Win. Abr.
viving executors cannot sue his representative for the debt.(u). Nor * $ 5.49
is the case varied by the executor’s dying without having proved (i) w.”
the will, or having administered,(a) or even by his refusal to act with öff. Execu-
his co-executors,(y) unless he formally renounced the office in the ºise
spiritual court; such a renunciation, indeed, shall prevent the release §. com.
of his debt ; for he could no more be compelled to accept a release : Leon.
than a deed of grant.(2) -- & Salk.
It is observed(a) that in all these cases the legal remedy is destroy- 300. Plow.
ed by the act of the party, and, therefore, is for ever gone ; but the ‘....';
effect is different where it is suspended merely by the act of law ; as Executors,
if administration of the effects of a creditor be committed to the *: Salk. 308
debtor, this is only a temporary privation of the remedy by the legal § ibia. 30%.
operation of the grant: thus, if the obligor of a bond administer to the
obligee and die, a creditor of the obligee having obtained administra-
tion debonis non may maintain an action for such debt against the ex-
ecutor of the obligor.
[In Massachusetts it is decided that the naming a debtor executor,
and his accepting the trust, does not extinguish the debt. Winship
v. Bass, et al. 12 Mass. Rep. 199. *
Parker, Ch. J. in delivering the opinion of the court observes ;
“There does not appear any definite decision in this state upon the (1) Rail.
“ question, whether the appointment of a debtor executor of a will is Abr. 920,
“ a discharge of the debt.” ~ * º
“The authorities cited by the counsel for the appellant seem to phan's Lega-
leave no doubt, that formerly by the common law of England, when #'.º:
a debtor was made executor, the debt was discharged er released (1): Needham's
ſº * • car. te ;11 case.—1 Salk.
unless a different intent of the testator could be inferred from the will 300. Wankford
* * * (a) Toller's Executor, 348. and see the cases there cited. - ;ºr d
47%
&f Executors and Administrators. [PART II.
(2) I Ch. Ca.
£92.-Cases
Temp. Talbot
240-4 Bro.
Parl. Cases
iT9.—3 Bro.
Ch. Ca.110.—
Yelv. 160.—
3 Rep. in Ch.
89. 1 Rep. in
Ch. 138.-
mbler 769.
–3 Bro. Ch.
£g. 28.
itself. The reason given in some of the authorities is, that the same
person is to pay and receive ; and as the executor cannot maintain
an action against himself, the debt shall be considered as paid.
But to avoid the manifest injury to creditors, by permitting a tes-
tator thus to take from the common fund the means of satisfying his
debts; the same law held that the debt, thus considered to be paid,
should be assets to pay the testator’s debts, and that the executor
should be held to account for and pay over the same.
This liability however did not exist in favour of legacies, or of the
residuary legatee, or of the next of kin; unless by someprºvision in the
will itself, it should appear that the testator manifestly intended that
the executor should not be discharged : as when the testator bequeaths
the very debt, or forgives a part of it to his executor, in compensation
for the trouble he has undertaken.
It was also a principle of the common law of England, that all the
undevised personal estate of the testator went to the executor as his
own property, when no residuary legatee was appointed ; unless
there was some devise or bequest to the executor, from which an infer-
ence could be drawn against the testator’s intention so to dispose of it.
The same law applied to administrators, after paying debts, legacies
and funeral charges, until the statute of 22 & 23 Car. 2. c. 10. made
perpetual by the statute of 1 Jac. 2. c. 17, which directed distribution
to be made of the residue to the next of kin: leaving the right still
in an executor, to retain to his own use all the goods of the testator,
remaining after paying debts, legacies and funeral charges.
This principle however has become obsolete, in consequence of the
application of rules and principles of equity in the courts of chancery,
where it has been frequently decided,(2) that unless a necessary in-
plication or violent presumption appears that the testator, by naming
an executor, meant to give not only the office of executor, but some
beneficial interest or property; he shall be considered as a trustee
only, holding a resulting trust for the next of kin to the testator.
We apprehend that the law has been always, or for a long time
settled in this country according to these principles; and that this
was in fact the law brought hither by our ancestors.
Executors and administrators are upon the same footing, both be-
ing trustees for the legatees or next of kin: unless in the case of an
executor it should manifestly appear from the will itself, that the tes-
tator intended him abenefit. As early as 1703, an act of the provincial
legislature passed, in effect abolishing all distinction between an exe-
cutor and an administrator, as to their interest in the estate of the
deceased. By the act of 1& 2 Ann. c. 5. § 1. it is provided that in
wills, where after payment of debts, and of any certain particular le-
gacy or legacies, the residue or remainder of the estate is bequeathed
generally to any one or more persons, other than the executors them-
selves; in every such case an inventory of the estate shall be pre-
CHAP. XI. Of Executors and Administrators. 47?
sented upon oath, and no bond be accepted in lieu thereof; and the
executors shall be liable to account as administrators are by law
obliged to do: and a right of action is given to any residuary legatee
against the executors.
From the time of the passing of this act, whatever may have been
the law of the country before, we apprehend that no debtor, appointed
an executor, was by such appointment discharged of his debt, when
there was a residuary legatee named in the will, and no notice taken
of his debt. For by that statute, he was to account in such case, as
an administrator would be holden to account; and there is no pre-
tence that a debtor, by taking out letters of administration upon his
deceased creditor’s estate, can discharge himself of his debt. The
remedy at law against him may be suspended during his administra-
tion, but will revive after it ceases: and indeed he may be charged
upon his administration bond, as having received the amount of his
debt. For having voluntarily assumed the trust, which prevents any
other from receiving, and being unable to sue himself, he shall be con-
sidered as having paid the debt, and as holding the amount in his
hands as administrator,(3) . (3) 11 JMass.
The statute of the Commonwealth [1783, c. 24.] re-enacts sub- *...*
stantially the provisions of the provincial act before cited : but the w
tenth section contains a still more explicit declaration of the inten-
tion of the legislature to exclude the executor from all beneficial in-
terest in the estate, unless he is particularly provided for in the will.
The words of that section are, ‘that all estate real or personal, that
f is not devised or bequeathed in the last will and testament of any
‘person hereafter to be proved, shall be distributed in the same man-
‘ner as if it were an intestate estate ; and the executor or adminis-
‘trator shall administer the same as such.” The legislature must
undoubtedly here intend that an express devise or bequest was neces-
sary to prevent the operation of this statute; for their object was to
provide for a distribution among the kindred, of what the testator had
not himself distributed, without intending to favour the claims of an
executor, resting only on the operation of law upon the will, which
might frequently militate with the views of the testator, who is not
presumed to know or to calculate upon the nice legal distinctions,
which might frustrate his real intentions. -
A construction of this statute, unfavourable to the appellant's claim,
appears to have been given by the court in the case of Hays & al.
Eacrs. vs. Jackson & al.(4) Chief justice Parsons, who delivered the (4) 6 Mass:
opinion of the court, after speaking of the rights of the executor, by Rep. 150.
the rules of law, over undevised personal estate, where no provision
was expressly made in the will of the testator, says, “a questions
frequently arose whether the executor was excluded from the resi.
due or not, the section of the statute above cited removed all doubt,
and the executor is now, in all cases, trustee of the undisposed resi-
due for the next of kin.” Where there is no residuary bequest there-
478 €f Ealectutors and Administrators. [PART II.
fore, the executor has no interest; and where there is, the whole re-
sidue devolves upon the residuary legatee. Thus the executor is re-
duced to a mere trustee for those who appear to be the objects of the
testator’s bounty; and in case he designates none such, for those
whom the law presumes he meant to provide for, his kindred accor-
ding to their degree of consanguinity.” .
Making debtor executor, is not an extinguishment of the debt. 3
B. C. C. 110. A debt due by the executor, is assets for the same reason
that he may, if a creditor, retain ; that he cannot sue himself. 13
Wes. 264.] -
6. Of an Executor de son tort.
If a person without any appointment of the testator assume the
office of executor, by taking possession of the assets, paying debts, or
(b) Pide Tol- otherwise administering the effects; such a one is styled an execu-
..º. tor de son tort, or an executor of his own wrong.(b)
chap. 11. In the second resolution in Read’s case,(c) it is said, that if an ex-
. º, 33 ecutor is made, and proves the will; if a stranger takes any of the
ºb. " * goods of the testator claiming them as his own, he is not executor of
his own wrong; because there is another executor of right, whom the
creditor may charge ; but although there be an executor who admin-
isters, yet if the stranger takes the goods, and claiming to be executor
pays debts, he may for such express administration be charged as ex-
ecutor of his own wrong. And the third resolution was, that where
* 543 the defendant takes the goods before *the rightful executor hath taken
upon him or proved the will, he may be charged as executor of his
own wrong.
So, if ºff, the servant of B. sell the goods of C. an intestate, as well,
after his death, as before, though by the orders of C., and pay the mon-
ey arising therefrom into the hands of B. : B. may be sued as an ex-
ecutor de son tort. But what acts make a person liable as executor
de son tort, is matter of law for the judge to decide ; it is only for the
jury to say, whether the acts are sufficiently proved.
Thus, in the case of Padget and another v. Priest and Porter,(d)
which was an action of assumpsit for goods sold and delivered
against the defendants as executors of W. Shore. They severally
pleaded, 1. The general issue ; 2. That they were not executors; and,
3. That they had fully administered. At the trial before Buller, J,
the plaintiffs proved the delivery of the goods in question to W.
Shore, who was a publican. A few days previous to his death the
intestate sent to Porter, his brewer, desiring him to send a man to
take charge of the cellar, and to draw the beer, who sent Payne his
servant. Payne sold beer as well after the intestate's death as be-
fore. Theintestate likewise ordered Payne to sell some hogs, which
he did after his death, and paid into Porter’s hands the produce of
them, and of the beer which was sold after the death of W. Shore,
i
(d) 2 Term
Rep. 97.
&HAP. XI.] Of Executors and fldministrators.
479
On the 7th of December, 1786, administration was granted to J.
Shore, who afterwards brought actions against these defendants for
money had and received. On the 3d of February, 1787, Priest
paid 8l. and on the 10th of February, Porter paid 411 into court, on
those actions. On the 31st of January the defendants pleaded in this
action, which had been commenced on the 23d of December preceding.
Verdict for the plaintiffs. But a rule was obtained calling on the
plaintiffs to show cause why there should not be a new trial, on the
ground that there was no evidence to prove the defendants executors
de son tort; or at most only slight evidence of facts done by them,
which ought to have been left to the jury to consider with what view
they had acted ; and that at all events there was no evidence to affect
Priest.
Buller, J., after reporting the above facts, said, “That considering
“ Priest merely in the light of a servant, he should have been desir-
“ous of obtaining a verdict in his favour, if that could have *been
“ done consistently with the evidence; but in fact he had paid money
“ into court, in another action brought against him by the administra-
“tor, which was decisive against him.”
And the court decided that the defendants had made themselves
executors de son tort; and therefore discharged the rule.
.Ashhurst, J. said, “It is very clear upon the evidence that the
“ money in the hands of the defendants belonging to the intestate was
“ not paid over to the rightful administrator when this action was
“brought; and therefore they cannot justify it under any plea.
“Though they might have excused themselves by paying the money
“ over before action brought, yet not having done so they have made
“ themselves executors de son tort.” -
Buller, J. also said, “The plaintiffs, who were creditors of W. Shore,
“find Priest and Porter selling his goods, and as they had no means
... of knowing whether they were lawful, or wrongful executors, they
“ looked upon them from their acts in the character of rightful execu-
“ tors. They therefore brought this action against them as executors:
“They proved effects of the intestate in their hands; that they
“ sold them after the intestate’s death, and that at the time when
“ this action was brought, and even when the defendants pleaded in
“ this action, they had money of the intestate in their hands. I can-
“ not agree with the defendants’ counsel that the question whether
“executors de son tort or not is to be left to a jury; that is a con-
“ clusion of law; whether the defendants had effects belonging to the
“intestate or not, and whether they sold them, were indeed questions
“ to be left to ajury; but when those facts are established, the result
“ from them is a question of law ; and it is clear from all the cases,
“that the slightest circumstance will make a man an executor de son
“ tort. It is said in Dyer, 166 b. that if a man even milk the cows,
“ or take a dog of the intestate, that will constitute him an executor
“ de son tort. With respect to Porter, it'clearly appears from the
f
3.
p
% 544
486
of Executors and Administrators. [PART H.
...,\
(e) 2 Term
Rep. 587.
(f) 3 Term
Rep. 587.
546
“evidence that he meant to pay himself by intermeddling with the
“intestate's affairs: but as to Priest, if there had been any circum-
“stances in his favour I would have left it to the jury to find for him.
“But I could not do so when it appeared that at the time of the plea
“pleaded he had money of the intestate's in his hands. With regard to
“ the rule of the wrongful acts of the stranger being purged by the sub-
“ sequent assent of the rightful administrator, that cannot apply
“ to the case of third persons; it only applies to the acts of the ad-
“ministrator himself. If indeed “previously to the action brought
“ against the defendants as executors de son tort, they had paid the
“money over to the rightful administrator, that would have been a
“good defence; because then they would have applied the money
“properly. So that the courts have gone thus far, that if an action
“brought by a rightful administrator against an executor de son tort,
“whatever may have been disposed of in the course of administration,
“ as by paying debts, &c. shall be allowed to him in damages. But
“ that does not apply to this case, where the creditors find money
“ in the hands of the defendants at the time of bringing the action.”
So, in the case of Edwards v. Harben,(e) it was determined, that
if a creditor take an absolute bill of sale of the goods of his debtor,
but agree to leave them in his possession for a limited time, and in
the mean time the debtor die, whereupon the creditor takes and sells
the goods, he will be liable to be sued as executor de son tort for the
debts of the deceased ; for the debtor’s continuing in possession is
inconsistent with the deed and fraudulent against creditors. It is a
general rule in the transfer of chattels, that the possession must ac-
company and follow the deed. Therefore where the conveyance is
absolute, the possession must be delivered immediately; where it is
conditional, it will not be rendered void by the vendor’s continuing
in possession till the condition be performed. , t -
So, an executor de son tort cannot discharge himself from an action
brought by a creditor by delivering over the effects to the rightful
executor after the action is brought : nor can he retain for his own
debt of a higher nature by consent of the rightful executor given after
the bringing of the action by the creditor. R
Thus in the case of Curtis and another v. Vernon, executor of Pal-
mer,(f) which was an action on the case on promises by the testator.
The defendant pleaded that Palmer died intestate, and that the de-
fendant was never executor, nor ever possessed any of his goods,
save as executor of his own wrong ; that after Palmer's death, and
before the 14th of May, 1789, administration was granted to his
widow S. Palmer ; and that on the 15th of May, 1789, the defend-
ant delivered over to the administratrix all the goods, &c. belonging
to the intestate, which came to his hands. 4thly. That the defendant
never was executor, &c. save as executor of his own wrong; that
administration was granted to S. Palmer (as before;) that the defend-
ant recovered 3,000l. on a bond in this court in the intestate’s life-
{
*
GHAP. XI.] of Executors and Administrators.
time; that no goods or effects of the intestate came into the defend:
ant’s possession, except goods of the value of 794l. 13s. 9d, which are
not sufficient to satisfy his said debts; and that the administratrix, on
the 15th of May, 1789, assented to his retaining those goods in satis:
faction of his debt. - & º
To the two last pleas there was a general demurrer and joinder in
demurrer. And in support of the demurrer, the counsel for the
plaintiff argued thus: “ The third plea cannot be supported, becausé
“it appears from all the authorities on this subject, that an executor
“ de son tort cannot purge his tortious act after an action is brought
* against him by delivering over the goods of which he has taken pos:
* session, to the rightful administrator : though he may dischargé
“ himself by delivering them over previous to the commencement of
“ the action. Keble v. Osbaston, Hob. 49. Bradbury v. Keynel, Cro.
“ Eliz. 565. Salk. 313. Anonymous, and Padget v. Priest, 2 Termi
“Rep. 97. For in the language of one of those cases, having oncé
“‘ made himself chargeable to the plaintiff 's action, as being execus
“‘tor de son tort he shall never afterwards discharge himself by
“‘matter ea post facto.” The fourth plea is also bad ; because an
“executor, de son tort cannot retain in satisfaction of his own debt
“as that would not only enable him to take advantage of his owii
“wrong, but would occasion a contention among the creditors to také
* possession of the intestate’s effects without any authority in law.
“ Coulter’s Case, 5 Rep. 30. Neither can he retain with the assent
* of the person who afterwards becomes the rightful administratory
“since that would be attended with the same inconvenience.”
On the other side it was argued in support of the third plea, that
an executor de son tort cannot be charged with more than the value
of these goods of the intestate of which he has taken possession; and
he may discharge himself from being liable even thus far by deliv-
ering over the goods to the rightful administrator. I Mod. 213;
Otherwise an executor de son tort might be doubly charged; first, by
any creditor of the intestate for the value of the goods taken ; and
2dly, by the administrator in trover; for the first recovery would be
no bar to the action of the administrator. And such executor is equal-
ly discharged by delivering over the goods to the right administrator,
whether the action be or be not commenced, *provided the delivery
be made before plea pleaded; as will appear by the reasoning of the
cases cited on the next point. As to the fourth plea ; if after ac-
tion brought and before plea pleaded, the executor take out letters of
administration, he may plead a retainer for his own debt; though the
taking administration does not abate the writs Whitehead v. Samp-
son. Freem. 265, ; 2 Show. 373. ; Baker v. Berisford, 1 Sid; 76.; 3
Ventr. 180. ; Williamson v. Norwich, Sty: 337. ; 1. Rol. Abr. 9233
L. pl. 12. : and Voughan v. Brown, 2 Str. 1106, ; Andr. 328. If
then the defendant himself might have retained in satisfaction of his
Web. Is [61] 4 *
482.
Of Executors and Administrators. [PART, iſ:
% 548
(g) Peake's
Cas. N. P.
36.
ôwn debt in the event of letters of administration having been grant-
ed to him even after the action was brought, and this he might have
done as his debt was of a higher nature than the plaintiff’s it seems
to follow that he may also retain with the assent of the rightful ad-
ministrator, and that the assent is stated in the plea.
But Lord Kenyon, Ch.J. in delivering the opinion of the court, said,
“they had looked into the authorities which were cited on the part
“of the defendant, but that they did not establish the propositions for
“which they were adduced. The case in 1 Sid. 76. is reported in a
“confused manner; but it concludes with saying, ‘that an executor
“‘de son tort cannot pay himself.” Now that goes the length of de-
“ciding the present case. And indeed the cases cited from Freem.
“ Yelv. Moor, Mod. and Strange, all prove the same point, that an
“executor de son tort cannot retain for his own debt. They also
“take the distinction between such an executor, and an executor de
“son tort, afterwards legalizing his own wrong by taking out letters
“of administration. The case in Strange shows this matter very
“clearly, where the court said it would be extremely hard that, if a
“ person entitled to administration is opposed in the Ecclesiastical
“Court, and does any act pendente lite to make himself executor de
“son tort, those acts should not be purged by his afterwards obtain-
“ing letters of administration. And they added that the granting
“administration legalizes those acts which were tortious at the time.
“With respect to the first point in this case, the opinion of Lord Ch.
“J. Holt, in Salk. 313, is decisive; where he says, “If H. get the
“‘goods of an intestate into his hands, and administration be granted
“afterwards, yet he remains chargeable as a wrongful executor, un-
“‘less he delivers the goods over to the administrator before the ac-
“tion is brought, and then he may plead plene administravit.” From
“all the authorities it is clear, first, that an executor de son tort must
“ deliver over the goods of *the intestate to the rightful administra-
“tor, before an action is brought against him ; and 2d. That, though
“he be a creditor of a superior nature, he cannot retain in satisfaction
“ of his own debt. Therefore we are of opinion that both these pleas
“are bad, and consequently there must be judgment for the plain-
“ tiffs.” - *- -
But a man who p ssesses himself of the effects of the deceased
under the authority, and as agent for the rightful executor cannot be
charged as executor de son tort. -
Thus in the case of Hall v. Elliot, executor of Elizabeth Codden, wid-
ow, who was the executrix of her late husband Patrick Codden, decea-
sed,(g) which was an action of assumpsit for goods sold and delivered
to the testator Patrick Codden in his life-time. The defendant plea-
ded that the testator Patrick Codden, made his will and appointed
Elizabeth Codden and Rowland Conyers executrix and executor there-
of that they both proved the will, and afterwards Elizabeth Codden.
died, and that Rowland Conyers was still alive. And the defendant
CHAP. XI.] Of Ea:ecutors and Administrators.
further says, “ that he never did, as the executor of the said Elizabeth
“ Codden, who was the executrix of the said Patrick as aforesaid, ad-
“minister any goods or chattels.” &c. The replication traversed this
last averment. .
Lord Kenyon, Ch. J. before whom the cause was tried, stopped the
counsel upon the opening of the pleadings, and said he thought this
action could not be maintained. Here is a surviving executor who
has acted, and he alone is answerable. If the defendant has possessed
himself of any goods, he is answerable to the surviving executor for
them, and that executor must distribute them amongst the creditors.
The counsel for the plaintiff cited Read’s case, 5 Co. 33. which he
contended showed that this action might be supported, though he ad-
mitted that an action would also lie against the defendant at the suit
of Conyers the surviving executor ; and observed that the objection
was on the record. Lord Kenyon said he would permit the cause to
go on, though he had no doubt in his own mind that the action could not
be maintained, as it was impossible there should be a lawful executor,
and an executor de son tort, at the same time. The cause accordingly
proceeded, but Conyers, *the ". executor proving that the de-
fendant acted as agent for him, and ºccounted with him for the money
he received, the plaintiff was nonsuited,
-º-º-º-
7. Of an Executor's Liability to be sued for a Legacy.
In the case of Atkins and wife v. Hill,(h) and Hawkes and wife v.
Saunders,(i) it was held that an action of assumpsit will lie against
an executor upon an express promise to pay a pecuniary legacy is-
suing out of personal property.
* 549
(h) Cowp.
284.
(*) Ib. .289.
See also
Lewis v.
But no action at law will lie against an executor for a pecuniary Lewis. 1 H.
legacy upon an implied assumpsit on account of the sufficiency of as-
sets; the legatee’s only remedy being in equity.
Thus, in the case of Deeks and wife v. Strutt,(k) which was an ac-
tion brought in assumpsit for the arrears of an annuity bequeathed
to the plaintiff’s wife by the defendant’s testator; wherein the declar-
ation stated that Robert Canham the testator bequeathed to the plain-
tiff Maria, 40s. a year for her life, payable quarterly ; that he appoin- ;
ted the defendant his executor; that after his death the defendant
proved the will; and then averred thº divers goods and chattels of
the testator came to the hands and fossession of the defendant to be
administered, fully sufficient to pay and satisfy all the debts, lega-
cies, and funeral expenses of the testator, and charges of proving the
will; and that the defendant was possessed of a great part of the
said goods and chattels, being fully sufficient to pay and satisfy the
debts, legacies, funeral expenses, &c. then unpaid and unsatisfied ;
whereby and according to the form and effect of the said will, the de-
fendant became liable to pay to the said Maria the sum of 403. a year
in manner aforesaid; and being so liable, he promised to pay her, &c.;
*
Bl. 111. n. a.
(k) 5 Term
Rep. 690.
See also Par-
Żsh v. Wilson,
Peake's Cas.
N. P. 73. S.
4 Mass. Rep. -
634.
##4
€f Baecutors and Administrators. [PART. II.
# 550
(l) Wide Wi-
holson v.
Shirman, 1
Sid. 46.
# 551
and then averred that three years and three quarters' arrears of the
annuity were due. At the trial of this cause a verdict was found for
the plaintiffs for 7l. 10s, subject to the opinion of the Court of King's
Bench upon the following case : The testator Robert Canham, made
his will dated the 31st January, 1774, in which amongst other
things, he gave to his *daughter Maria, the wife of the plaintiff, to
her separate use, an annuity of 40s, for her life, payable quarterly.
The defendant Strutt, who is the surviving executor named in the
will, which was proved in the prerogative court on the 20th of May,
1775, paid for several years the annuity up to Lady-Day, 1792. The
defendant never made any express promise to pay ; but was posses-
sed of assets sufficient to have paid the plaintiff’s demand, if parol
evidence of an acknowledgment of having assets, without any other
evidence of assets come to his hands, be sufficient evidence thereof—
The case then stated a demand and refusal of the arrears.
The Court determined that this action was not maintainable.
Lord Kenyon, Ch. J. said, “The supporting of the present action
* would be attended with the most pernicious consequences; and I
“believe that no action, till lately, (except one in the time of the com-
“monwealth) for a legacy has been supported in a court of law. The
“arguments, which have of late years been advanced in support of
“this action, are founded on the supposed justice of the case and the
“convenience of the parties: but when it is considered in what man-
“ner a court of equity interposes in suits for legacies in taking care
“that provision is made for the different parties entitled, and what
“inconvenience and even ruin to private families would have ensued
“ from determining that an action can be brought in a court of law
* for a legacy, I think that those who have wished to support the ac-
“tion in a common law court would hesitate before they came to the
“ conclusion that the action can be maintained. If an action will lie
“ for a legacy, no terms can be imposed on the party who is entitled
* to recover; and therefore when the legacy is given to a wife, the hus-
“band would recover at law, and no provision could be made for the
“ wife or her family: whereas a court of equity will take care to
“ make some provision for the wife in such a case; but the whole of
“ this admirable system, which has been founded in a court of equity,
“will fall to the ground, if a court of law can enforce the payment of
“a legacy. I mention these as decisive reasons in my mind against
“ the jurisdiction of the courts of law over this subject; and I know
“ that they have influenced those who once entertained an idea that
“this action could be supported. The only case(1) that I know of
“*where it was said that this action might be maintained happened
“ in the time of the commonwealth; but the reason there given was
“ to prevent a failure of justice, the Ecclesiastical Courts being at
“ that time abolished, and the Court of Chancery not having then, nor
“indeed until the time of Lord C. Nottingham, entertained any ju-
“risdiction over the question of legacies. Therefore as the argu-
*.
CHAP. XI.] of Earecutors and fläministrators.
485
“ments of convenience and justice, on which alone it has been thought
“ that this action is maintainable at law, bear strongly against it, and
“ as I only find one case, in which it has been supported, and which
“ was decided contrary to all precedent, merely because the party
“ had then no other remedy, I am clearly of opinion that the present
“ action cannot be maintained.” 3.
Jºshhurst, J. “As this is a question of infinite importance to the
“ public, I am glad that the case was reserved in order that the ques-
“tion may be settled. Prima facia it is a strong objection against
“such an action as the present that only one instance is to be found
‘‘in which it has been supported ; and the reason of that has been
“explained by my Lord Chief Justice. Policy and convenience are
“ also against the jurisdiction of the courts of common law over this
“subject; in a court of law we cannot impose any terms on the par.
“ty suing; if he be entitled to a verdict, the law must take its course :
“but a court of equity will impose on the party applying such terms
“ as they think right and according to conscience. Innumerable in-
“stances have occurred in which the interposition of that court has
“proved highly beneficial to private families, by compelling the hus-
“band to make an adequate settlement on the wife: but if we were
“ now to determine that an action at law could be maintained for a
“legacy, wives and families in many instances would be left desti-
“tute of any provision.”
Grose, J. “ The ground of this action, as it appears on the declar-
“ation, is that in consideration of assets, the defendant promised to
“pay this annuity. It is not pretended that the defendant made any
“express promise to pay ; and the question is, whether under these
“circumstances the law does or does not imply such a promise; no
“ case has been cited to show that it does. There is one case,(m) in
“ the books, where the declaration states that, in consideration of *a
(m) Davies v.
Wright, 1
Went. 120.
“ forbearance by the plaintiff to sue, the executor promised to pay the See also Crº;
“legacy; and the court held that the action might be maintained; but
“ the circumstance of that action being brought on a promise in con-
“ sideration of forbearance, shows that it was understood that the
“bare possession of assets was not alone sufficient—This is a novel
“ attempt; and I am of opinion that the action cannot be supported.”
But an action at law lies against an executor to recover a specific
chattel bequeathed, after his assent to the bequest.
Eliz. 91. S. P.
* 552
Thus in the case of Doe, on the demise of Lord Saye and Sele, (n) 3 East's
v. Guy(n) which was an ejectment for a certain leasehold house and Rep. 130.
premises. It appeared that the lessor of the plaintiff claimed the
premises in question under a bequest of the lease thereof from Mrs.
Mary Guy, to whom the defendant was executor ; that soon after
the death of the testatrix, which was in January, 1802, upon Lord
Saye and Sele’s application to the defendant to deliver up the pos-
session of the house, he returned for answer by letter, that it was not
convenient for him to remove before Michaelmas then next, at which
486
Of Executors and Administrators. [PART II,
# 553
period, but not before, he was willing to resign it. By a subsequent
letter the defendant informed the lessor that he was ready to resign
the house on the 25th of April. This was ruled by Lord Ellenbor-
ough, Ch. J., before whom the cause was tried, to be evidence of the
defendant’s assent as executor to the bequest. But it being contend-
ed further, upon the authority of Deeks v. Strutt, that no action at
law would lie to recover a legacy, which was in substance the case
here ; a verdict passed for the plaintiff with liberty to the defendant
to move the court of King’s Bench to set it aside, and enter a nonsuit.
A rule nisi was accordingly obtained for this purpose.
Upon showing cause against the rule the counsel for the plaintiff
argued that the case relied on of Deeks v. Strutt was where an annu-
ity was devised, payable out of the general funds of the testator
which had been paid for several years by the executor; but there
was no express promise to pay the arrears for which the action was
brought : and the question there was, whether the acknowledgments
of assets by the defendant were sufficient to raise an implied assump-
sit in law to continue the payments as they became due. That dif-
fers from a bequest of a specific thing, to *which the executor has
expressly assented, in which case there are many authorities in the
books to show that such assent passes the legal title under the will.
The counsel for the defendant relied on the ground of the decision
in Deeks v. Strutt, which applied as well to the case of a specific
legacy as of a legacy payable out of the general fund ; namely, that
no action at law lay to recover it against the executor, because a
court of law could not in many instances do that justice to the par-
ties concerned as a court of equity were accustomed to do : for the
latter would in the case of a legacy to a married woman, oblige the
husband to make a suitable provision for her, if she were not before
sufficiently secured.—Whereas this court could not impose terms on
one who was entitled to recover upon his legal title. The opinion of
the judges in that case was delivered generally against supporting
an action at law for a legacy, without the distinction now set up.
The cases of fltkins v. Hill, and Hawkes v. Saunders, were indeed
cases of express promises : but the reasoning there went the whole
length of this case, if it had been well founded ; but it was contro-
verted and considered to be overruled in Deeks v. Strutt.
The court however, determined that this action was maintainable.
Lord Ellenborough, Gh. J. said, “General language used by the court
“ in giving their opinions in any case must always be understood with
“ reference to the subject matter, then before them. The question
“ of specific legacy assented to by the executor was not before the court
“ in Deeks v. Strutt, but whether the law would raise an implied
“ promise on proof of an acknowledgment of assets by the executor,
“ so as to sustain an action against him, for an annuity, payable out
“ of the general funds of the testator. But it never could be doubted
“but that at law the interest in any specific thing bequeathed vests
“in the legatee upon the assent of the executor. If it should after-
Char. XI.] Of Executors and Administrators.
487
“wards appear that there is a deficiency of assets to pay creditors
“ the court of Chancery will interfere and make the legatee refund
“ in the proportion required. It makes no difference whether the
“ bequest be of a personal or real chattel: but according to the doctrine
“laid down in the csses cited of Paramour v. Kardley,(0) and Young
“ v. Holmes, (p) and the passage from 4 Rep. 28. *the assent of the
“executor once given to a specific legacy vests the interest at law
“irrevocably ; and this is not broken in upon by any subsequent
“ case. Now here was ample evidence of an express assent by the
“executor; for he appointed a certain day for giving up the posses-
“sion of the house to the lessor of the plaintiff; and therefore the
“ latter is entitled to recover.” -
Grose, J. “ The only question in the case of Deeks v. Strutt, was
“whether the law would raise an implied assumpsit to pay the annu-
“ity, upon proof of the executor’s acknowledgment of assets. Ithought
“it would not; but this is the case of a specific legacy, in which all
“ the authorities show, that upon the assent of the executor, the inte-
“rest vests at law in the legatee.” -
Lawrence, J. “What was said by the court in Deeks v. Strutt, must
“ be taken with relation to the case then before them which was an
“ action for a legacy not founded upon any express assent of the exe-
“cutor, but endeavoured to be supported upon an implied assent in
“law, on account of a sufficiency of assets which implication the court
“held that they could not raise. All the court treated it as a new at-
“tempt, and therefore they could not have intended to apply the same
“ doctrine to a case like the present, where there was an assent by
“ the executor to the specific legacy; for there are many authorities
“in the books, in support of such an action; as in Duppa v. Mayo,(q)
“ wherein an action against the representative of an executor for the
“arrears of an annuity bequeathed by the testator out of a term of
“years, a general consent of the executor to the legacy is alleged in
“ the declaration ; on which there was judgment for the plaintiff. So
“in Saunder’s case,(r) it is said, “if lessee for years demise his term
“‘ to another, and make executors and die; and the executors do
“‘ waste, and afterwards assent to the devise; in that case, although
“‘between the executors and the devisee, it hath relation, and the
“‘ devisee is in by the devisor; yet an action of waste shall be main-
“‘tainable against the executors in the tenuit.” There, however,
“Lord Coke clearly considers that the assent of the executor vests
“ the term in the legatee from the death of the testator. The same
“ question came on in another case of Chamberlain v. Chamber-
“lain:(s) Thomas Chamberlain, made his wife executrix, and be-
(0) Plowd.
539.
(p) 1 Stra.
’70.
# 554
(q) f Saund,
278.
(r)5 Co. 12.b.
(3) 1 Chan.
“queathed a lease to her for *life, remainder to his son for life, re- §. 256.
“ mainder to his first son and his heirs male. The wife assented,
“ and died, having made Croft her executor. There being a deficien-
“cy of assets, the question was, if Croft could sell the lease ? And
“the Lord Keeper Finch declared the lease should be assets, not-
* withstanding the assent. But that after such assent, J. Chamber-
“lain, the son, had sold the lease to a third person bona fide, this had
* 555
488
Öf Ezecutors and Administrators. [PART II
(t) 2 Lev.
209.
(w) Freem.
289.
# 556
(c) 2 Eq.
Cas. Abr. 465.
• 2 Freem. 141.
“defeated the creditors; for this had been a good title at law ; and
“the purchaser should not be defeated by this trust for creditors.
“Therefore the Lord Keeper in terms said that the effect of the as-
“sent of the executrix was to vest the term in the legatee; though he
“would be considered as a trustee for the creditors in the event of a
“deficiency of other assets. Also in Bastard v. Stukelj,(t) one de-
“vised goods to A. and B. ; the executor assented to the legacy, and
“afterward A. died : and now the executor of fl. sued in the Spirit-
“ual Court for ºff.’s share, there being no survivorship in such case
“by the laws ecclesiastical. And prohibition was granted upon de-
“murrer and argument : for by the assent of the executor the in-
“terest was invested by the legatees, and became a chattel goverſia-
“ble by the rules of the common law. That was the case of a chat-
“tel personal. But Barton’s case,(w) which came on to be argued on
“a demurrer to the prohibition, appears to distinguish between the
“case of a general and specific legacy. Inasmuch as it appeared by
“the suggestion that the executors had consented to take as legatees,
“ and by this means the property vested in them as legatees, and
“ was altered from what it was when they were executors : for when
“they were executors one might have granted away all the goods,
“but after taking as legatees one could grant but a moiety. And it
“is added, when a certain thing, as a horse or a cow, is devised, as
“soon as the executor assents, the propetty vests in the legatee, and
“he may have an action at common law for the recovery of the thing:
“ and therefore differs from the case in 2 Roll. Abr. 301., for that was
“ for a legacy for which the common law gives no remedy. That must
* be understood to mean a legacy payable out of the general funds
“ of the testator, in contradistinction to a legacy of a specific thing.”
Le Blanc, J. “It is admitted that upon the old authorities there is
“ no doubt of the plaintiff’s right to recover, unless they have been
“ overruled by the case of Deeks v. Strutt. But that never could
“ have been in the contemplation of the judges there ; because it
“ formed a ground of objection with them to the action, that it was a
“ novel attempt to contend that the law would raise an implied as-
“ sumpsit against an executor merely from the possession of assets;
• They thought that it would not: and in discussing that point, they
“ showed the inconvenience which would result from extending the
“ law in that respect further than it had been carried before. The
« case of Chamberlaine v. Chamberlaine,(2) shows exactly the situa-
“tion in which a specific legatee stands in the judgment of a court of
“ equity, when the executor has assented to the legacy: that it vests
“ the interest at law. Here there was no pretence stated even of any
& & equitable ground why the plaintiff should not recover. It was not
“pretended that from any deficiency of assets the specific legatee
“ was likely to be called upon to refund if he recovered : and even
“ now if there were any ground for it, the Court of Chancery, even
“ after the assent of the executor, night reach the property in the
... hands of the devisee, as appears from the case of Chamberlaine V.
“ Chamberlaine.”
END OF THE FIRST VOLUME,
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