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them binding ; nor can the merits of a judgment ever be questioned CH. I. s. 2. by an original action, either at law or in equity, it being con- Contractx of clusive, as to the subject matter thereof, and as between the parties thereto, until it is set aside or reversed (9). But an appeal will lie against the whole or against any part of a judgment (h), and where a judgment has been obtained by any irregularity in practice; or when, although regular on the face of it, it has been fraudulently enforced, the Court in which the action was brought has power to set it aside ().
Sect. 3.–Contracts under Seal.
(a) Form and Delivery.
Contracts or obligations under seal, or specialties, such as deeds Contracts
. and bonds, are instruments which are not merely in writing, but unler seal. which are sealed by the party bound thereby, and delivered by him to, or for the benefit of the person to whom the liability is thereby incurred. This is the formal contract of English law, and in no other way than by the use of this form could validity be given to executory contracts in early times (j). Neither a date (k), nor, at common law, even the signature of the party (I), is essential to the validity of a deed. But there cannot be a deed without writing, sealing, and delivery (m). There may, however, be a sufficient What a suffi
, delivery without words (n), or by words only, without any act of cient delivery delivery (0):--the only question in such cases being, whether the sealing of the deed was accompanied by any acts or words which were sufficient to show, that the party then intended to execute the deed, as his deed, presently binding upon him (p). Where, therefore, a party to an instrument sealed it, and declared in the presence of a
19 Per Lul. Jansfield, Moses v. Macborlan (1760), 2 Burr. 1009; and see Find y. Lloyd, (1879) 10 Ch. D. 327 ; Ez parte Lennox (1885), 16 Q. B. D. -15, C. A. ; Ex parte Scotch Distillers *38), 22 Q. B. D. 83, C. A.
Jud. Act, 1875," R. S. C. 1883, 1. LVIII.
1) De Medina v. Grove, (1846) 10 B. 152. !;See Anson's Law of Contract,
II., 8th ed., pp. 49 et seq., and 29, post ; and see too an article in
· Law Quarterly Review," Vol. 3 7, by John W. Salmond. ☆ Pac. Abr. Obligation, (C.); Com.
Fait, (B. 3).
(1) Bac. Abr. Obligation, (C.); 2 B. Com. 304.
(m) Co. Litt. 171 b. And it is said, that the term deed is not confined to contracts; but that any instrument delivered as a deed, whieh either, in itself, passes an interest or property, or is in affirmance of soinething whereby an interest or property passes, is a deed. Per Bovill, C.J., Reg. v. Morton (1873), L. R., 2 C. C. 22, 27.
(12) Co. Litt. 36 a.
(0) lu. And see Tupper v. Foulkes (1861), 9 C. B., N. S. 797.
(P) Xenos v. Wickham (1867), L. R. 2 H. L. 296.
Ch. I. s. 3. witness that he delivered it as his deed, and yet kept it in his own
Contracts under" seul possession ; but nothing further transpired to show that he did not inSeal.
tend it to operate immediately, this was held to be a good delivery (9). And so it has been decided, that a delivery to a third person for the use of the covenantee is sufficient, if the grantor part with all control over the instrument; although the person to whom the
deed is so delivered be not the agent of the covenantee (). Delivery as A party may likewise deliver a deed as an escrow, that is, so an escrow.
that it shall take effect or be his deed on certain conditions. And such delivery need not be by express words ; for if from all the facts attending the transaction, it can be reasonably inferred that the writing was delivered, not to take effect as a deed till a certain condition was performed, it will operate as an escrow (r). To constitute a delivery as an escrow, however, the delivery must always be made to a third party, and not to the grantee or covenantee (s). But a deed may be delivered as an escrow, to a solicitor who is acting for all the parties to it (t); or even to the solicitor of the grantee or covenantee himself, provided, upon the whole transaction, it be clear that such delivery was not intended to be a delivery, at that time, to such grantee, or covenantee (u).
(b) Consideration for Contracts under Seal. Generally speaking, as we shall see in detail presently, the law leans against mere gifts, and requires reciprocity in contracts. But in the case of a contract under seal, no such reciprocity is ordinarily required, the rule being that a contract under seal is good even against a party deriving no advantage from it (1). It has been doubted, however, whether the total failure of a consideration obviously intended to exist, and upon which a contract under seal is meant to be founded, will not afford a defence to an action upon the contract (x); and it has been laid down that in general Ch. I. s. 3. specific performance will not be decreed of a contract under seal Contracts
(q) Doe d. Garnons v. Knight (1826), 5 B. & C. 671.
(r) Gudgen v. Besset (1856), 6 E. & B. 986 ; Bowker v. Burdekin (1843), 11 M. & W. 128, 147.
(8) Co. Litt. 36 a.
(1) Millership v. Brookes (1860), 5 H. & N. 797.
(u) Per Hall, V.-C., Watkins v. Nash (1875). L. R., 20 Eq. 262.
(v) See Plowd. 308 ; Pratt v. Barker (1828), 1 Sim. 1, 4 Russ. 507 ; Morley v. Boothby (1825), 3 Bing. 107.
Considerations for deeds have also been divided into “good," as natural affection, "moral obligation,” and the like, and “ valuable, as money, money's worth, or marriage ; and it was said that good consideration made an instrument good as between the parties; but a valuable
consideration made it good as against a subsequent purchaser (see Gully v. Bishop of Exeter (1828), 2 Moo. & P. 266). But this division, inasmuch as a deed requires no consideration, has only historical interest. Where the colisideration is in fact good but not valnable, it will be of course desirable to express it in the document to preserve it from the suspicion attaching to a con. tract without any even moral consideration.
It is provided by the Bankruptcy Act, 1883, sect. 47 (2), that an antenuptial covenant, in consideration of marriage by a husband to settle his own after-acquired property, will be void as against the trustee in bankruptcy it the husband becomes a bankrupt before the property is actually transferred.
under Seal. which is entirely without consideration (y). But an imperfect conveyance, if voluntary, is not binding, and equity will not execute it in favour of volunteers, if anything remains to be done (2). And if the consideration be immoral or illegal, the contract, Immoral con
sideration. though under seal, will be void. As to immoral consideration, the rules are very fully laid down in Ayerst v. Jenkins (a), as follows:- Ayerst v.
Jenkins 1. “Bonds or covenants founded on past cohabitation, whether adulterous, incestuous, or simply immoral, are valid in law, and not liable (unless there be other elements in the case) to be set aside iu equity. 2. Such bonds or covenants, if given in considera
. tion of future cohabitation, are void in law, and therefore of course also void in equity. 3. Relief cannot be given against any such bonds or covenants in equity if the illegal consideration appears on the face of the instrument;" it being added that if an illegal consideration does not appear on the face of the instrument, relief may be given in some circumstances to a particeps criminis in equity. The rules respecting illegal considerations, which will be fully Illegal con
sideration. stated hereafter (post, Ch. XXI.), are generally similar to those respecting immoral considerations. A contract in restraint of trade, though under seal, requires a Restraint of
trade. valuable consideration to support it (6).
Further, a contract under seal, if made without consideration, Impeachment may be impeached by third parties, on similar grounds to those on
parties. which voluntary settlements can be impeached as being fraudulent as against creditors (c).
(c) Other Attributes of Contracts under Seal. As between the parties to the instrument, and in an action upon Estoppel. it-or where an action is brought to enforce rights arising out of the deed, and not collateral to it (d)—a deed operates as a conclusive bar, and prevents all inquiry into the truth (e); except, indeed, in cases of duress or fraud, or where there existed some incompetency in the contracting parties, or illegality in the consideration or object upon or for which the deed was made. In these cases
r) Bunn v. Guy (1803), 4 East, 190 ; ik R. 560; Rose v. Poulton (1831), 2 B. & Ad. 822.
tu) Wycherley v. Wycherley (1763), ? Elen. 177 ; Groves v. Groves (1829), 3 Y. & J. 163. (3) Snell's Principles of Equity, 8th
, p. 64 ; Lewin on Trusts, sth ed., 19. 79 et seq.
13) Ayerst v. Jenkins (1873), L. R., 16 1.275, at p. 282, per Lord Selborne, LC.
(6) Homer v. Ashford (1825), 3 Bing. 322, and Ch. XXI., sect. 2, post.
(c) See 13 Eliz. c. 5; 27 Eliz. C. 4; Rosher v. Williams (1875), L. R., 20 Eq. 210.
(d) Wilcs v. Woodward (1850), 5 Ex. 557, 563.
(e) Carpenter v. Buller (1811), 8 M. & W. 209. The same rule prevails in equity ; Carter v. Carter (1857), 27 L. J., Ch. 74.
Ch. I. s. 3. the facts may be pleaded in order to defeat the deed, even although
Contracts under Seal, they may
contradict statements made on the face of the deed (f). And so, although a party to a deed may be estopped from denying facts which are stated in it, he is not estopped from saying that, on
the facts so stated, the deed is void in law (9). Estoppel by The general rules as to estoppel by recitals in a contract under recital.
appear to be that a stateinent intended to be the statement of one party binds that party only (h), and that an averment in a recital
does not operate as an estoppel unless it be clear and precise (i). Merger. And as a deed is a security of a higher nature, so it operates as a
merger or extinguishment of any simple contract in respect whereof it was entered into (l); upon the same principle that a judgment
upon a specialty merges it (1). Mode of It is, at common law, an attribute of a contract under seal that discharge.
it can be varied or discharged by another contract under seal only, and not by a contract under hand or by word of mouth (m); but the rule is otherwise in equity (n), so that by the operation of the
Judicature Act, 1873, s. 25, subs. 11, the rule of equity prevails (o). Period for The period during which a remedy may be had in damages for a remedy.
breach of contract, which is twenty years, if the contract be under seal, is six years, if the contract be not under seal (p).
Simple con. tracts.
SECT. 4.—Simple Contracts. In speaking of simple contracts we are to understand, not only such as are merely oral, or by word of mouth, but also such as, although they have been reduced into writing, have not been sealed and delivered.
All contracts are, by the laws of England, distinguished into agreements by specialty and agreements by parol: nor is there any such third class as contracts in writing. If they be merely written and not specialties they are in law parol (9) ; and they have the same efficacy, properties, and effect. The difference, therefore, is not between verbal and written contracts; but between parol or
(f) See Collins v. Blantern (1767), 2 Wils. 341; Hill v. Manchester and Sal. ford Waterworks Company (1831), 2 B. & dd. 544.
(9) Doc d. Precce v. Howells (1831), 2 B. & Ad. 744.
(h) Stronghill v. Buck (1850), 14 Q. B. 781.
(2) See Heath v. Crealock (1874), L. R., 10 Ch. 22; General Finance, dc., Co. v. Liberator Society (1879), 10 Ch. D. 15.
(k) Bac. Abr. Debt (G.); per Lord Ellenborough, C.J., Drake v. Mitchell (1803), 3 East, 251 ; 7 R. R. 419.
(2) See id. ; 3 Chit. Com. L. 11.
(m) See Nash v. Armstrong, 10 C. B., N. S. 259.
(n) Webb v. Hewitt (1857), 3 K. J. 438.
(0) See Steeds v. Steeds (1889), 22 Q. B. D. 537.
(p) See post, Ch. XXIII., sect. 8, tit. “Statutes of Limitation."
(9) See per Skynner, C.B. ; delivering the opinion of the judges in Rann v. Hughes (1764), in the House of Lords, 7 T. R. 350, n. (a); 1 Bac. Abr. Agreements, (B. 2).
written contracts on the one hand, and specialties or contracts CH. I. s. 4. under seal on the other. It is true that, by the Statute of
Simple Frauds (r), certain agreements must be reduced into writing, and signed by the party to be charged thereon ; and other more recent acts of parliament have rendered writing and signature indispensable to the validity of particular promises (s). But the ceremonies of writing and signature are prescribed in these cases, merely as necessary evidence of the contract or promise to which they refer, and not as essential or constituent parts of the engagement itself (t). The mere fact, therefore, of the contract being reduced into writing and signed, does not alter either its character or its effect; it is still merely a simple contract, and in order to give it efficacy it must possess all the usual requisites of a simple contract. Thus, a Consideration. consideration is absolutely necessary to the validity of such a contract, whether it be merely oral, or be in writing and signed; whereas a writing sealed and delivered is supposed, by law, to express fully the intention of the party by whom it is executed ; and he is, in general, bound by its execution, even in a Court of Equity, whether he received a consideration for the engagement which it comprises or not (u); though a deed given voluntarily, i.e., without consideration, is voidable as between the parties thereto, if it has been obtained by fraud, and may be impeached by third parties, if made in violation of 13 Eliz. c. 5, or 27 Eliz. c. 4.
Again: the doctrine of estoppel, whereby "a man is concluded Doctrine of by his own act or acceptance, to say the truth," applies, in general,
", does not to deeds and records only (ix) ; not to simple contracts (y). But it apply. is not to be supposed that a statement or admission contained in a simple contract has not any effect as against the party making it; the rule being, that such statement or admission is strong pre- Admission. sumptire evidence against the party, although it be not conclusive. He is still at liberty to prove that such admission was mistaken or untrue; and he is not estopped or concluded by it, unless another person has been induced thereby to alter his condition ; but if this be the case, then he is estopped with respect to that person and those claiming under him, and that transaction (ə).
(7) 29 Car. 2, c. 3, Ch. IV., post. 19) See Ch. IV. sect. 1. !!! See Laythoarp v. Bryant (1836), 3 Scutt, 238, 250. 1See p. 4, ante.
2) Co. Litt. 352 a ; Com. Dig. Eskoppel (A); and p. 5, ante.
E.g., a bill of lading is not consive evidence of the shipment, as femren shipper and ship-owner. See
real v. Vorray (1851), 10 C. B. 665 ; 1 Cor v. Bruce (1886), 18 Q. B. D. 4. C. A., following Grant v. Norway ;
unless where the bill of lading is signed,
(z) Per Bayley, J., Heane v. Rogers