Lunacy existing at the time of the marriage avoids the marriage (ƒ); and it is voidable for duress (g).

CH. XVIII. s. 3.

The Contract

of Marriage.

Impotence existing at time of marriage, and incurable, is a ground for annulling a marriage on suit by either of the parties during Free consent their joint lives (h) on the ground of the impotence of the other. of the parties. Concealed pregnancy by a third person at the time of marriage Capacity.

is no ground for a decree of nullity of marriage (i).

Consanguinity or affinity.

formalities in

Marriages within the prohibited degrees of consanguinity or affinity (as laid down in the Prayer Book Table), as with a deceased wife's sister, are by the Marriage Act, 1835, 5 & 6 Will. 4, c. 54, absolutely void (k), and not merely voidable as before that Act. It is necessary to the validity of the contract of marriage in Necessary England that there should be a public ceremony, either according England. to the rites of the Church of England by a priest (k) in a parish church, or in a chapel registered for marriages; or, as to Nonconformists, at a registered building in the presence of the registrar, or by the registrar alone at his office (1). There are also many requirements as to previous publication of banns, or obtaining a licence as to solemnisation within the hours of 8 A.M. and 3 P.M., and other matters (m), but the requirement of consent Consent of of parents has been expressly held to be directory only, and not parents. imperative (n); and it is only wilful and knowing disobedience of previous statutory formalities that would annul a marriage.

malities out

The Foreign Marriages Act, 1892, 55 & 56 Vict. c. 23, regulates Necessary formarriages of British subjects on board ship or abroad. In respect of England. to marriages out of England generally, the rule is that any marriage will be held valid by the English Courts which was valid by the law of the country in which it was solemnised, subject to the exceptions that polygamous marriages are not recognised (o); and that for validating a marriage in Scotland contracted without religious ceremony, a twenty-one days' preliminary residence is required by the Marriage (Scotland) Act, 1856, 19 & 20 Vict. c. 96. And where a parson cannot be readily obtained, as up country in India, it would seem that a marriage per verba de præsenti will be good (p).

(f) Durham v. Durham (1885), 10 P. D. 80; 51 Geo. 3, c. 37.

(g) Scott v. Sebright (1886), 12 P. D. 21. (h) A. v. B. (1868), L. R., 1 P. & M. 559.

(i) Moss v. Moss, [1897] P. 263. (k) Although celebrated between two British subjects abroad in a country where such marriages are legal; Brook v. Brook (1858), 27 L. J., Ch. 401; aff. by House of Lords in 1861, 9 H. L. 193.

(1) 4 Geo. 4, c. 76; 6 & 7 Will. 4, c. 85; and see Marriage Act, 1898 (61 & 62

Vict. c. 58).

(m) See Chitty's Statutes, tit. "Marriage."

(n) R. v. Birmingham (1828), 8 B. & C. 29.

(0) See Bethell, In re (1888), 38 Ch. D. 220; and Hyde v. Hyde and Woodmansee (1866), L. R., 1 P. & M. 130 (Mormon marriage).

(p) Maclean v. Christall (1849), 7 N. C., Supp. XVII. ; and see Catterall v. Sweetman (1847), 4 N. C. 222; 5 N. C. 466.

CH. XVIII.

s. 4.

Religion of the Children.

It is the father who settles the religious education.

Nullity of antenuptial

contract otherwise.

Andrews v.
Salt.

Form of contract otherwise.

Nevin, In re.

Indirect effect of contract otherwise.

SECT. 4.-The Contract for Bringing the Children up in a
Religion other than that of the Father.

The general rule is that a father has the right and duty of settling the religion in which his children are to be brought up, and not the mother, in case of difference between the parents. And any agreement before marriage between a husband and wife of different religions that boys should be educated in the religion of the father, and girls in the religion of the mother, or by the husband to exercise in any other particular way the rights which the law gives him for the benefit of his children and not for his own, is absolutely void. So it was laid down by the Court of Appeal in Andrews v. Salt (q), so it has been frequently held (r), and an injunction has been granted to restrain a Roman Catholic mother from bringing up in her own faith, without the father's consent, the children of a Church of England father who had retracted an antenuptial promise to allow such bringing up, the Court not insisting, however, on a Protestant bringing up, but leaving the father to act as he considered best for the temporal and spiritual welfare of the children (s).

In one of the cases (t), the following printed agreement was signed by both parties previously to marriage :—

"We, the undersigned, do hereby each of us solemnly promise and engage that all the children of both sexes who may be born of our marriage shall be baptized in the Catholic Church and shall be carefully brought up in the knowledge and practice of the Catholic religion."

And the husband also signed a document to the effect that

"I, the undersigned, do hereby solemnly promise and engage that I will not interfere with the religious belief of my future wife, and that I will allow her full and perfect liberty to fulfil all her duties as a member of the Catholic religion."

The above forms are worded more as personal vows than as contracts between the intending spouses, but in either view any forms like them have no legal effect, except by way of corroborative evidence of an abandonment by the husband of his paternal right, as was said by the Court of Appeal in Andrews v. Salt.

(q) Andrews v. Salt (1873), L. R., 8 Ch. 622, C. A.

(r) As in Agar-Ellis, In re (1878), 10
Ch. D. 49, C. A.; Clarke, In re (1882),
21 Ch. D. 817, per Kay, J.; Nevin,
In re, [1891] 2 Ch. 299.

(s) Agar-Ellis, In re, supra (r).
(t) Nevin, In re, supra; and see

CHAPTER XIX.

CONTRACTS OF EMPLOYMENT.

[See Manley Smith on Master and Servant, 5th ed., 1902; Macdonell on Master and Servant, 1883; Minton Senhouse on Work and Labour, 1904; Cordery on Solicitors, 3rd ed., 1899; and for list of 10 works on the Workmen's Compensation Act, see Chitty's Statutes, vol. xiv., tit. "Workmen's Employment," at p. 941 (k).]

Implied conskill and

tracts for

In the case of any contract for work or business, the law implies an engagement on the part of the person undertaking to do the work, that it shall be performed with due care, diligence, and payment. skill, according to the orders given and assented to (a); andwhere there is no agreement as to the price-a promise by the party who employed the workman, to pay him, in money, a reasonable remuneration (b). Nor will the fact of the workman demanding more than a reasonable price, or refusing to deliver a chattel on which he has bestowed his labour, except on payment of such larger price, preclude him from afterwards suing for and recovering a reasonable price (c). But where a specific price has been agreed

(a) Streeter v. Horlock (1822), 1 Bing. 24. Per Bayley, J., Duncan v. Blundell (1820), 3 Stark, 6.

(b) See Brown v. Nairne (1839), 9

C.C.

C. & P. 204. For exceptions, see sects.
2, 3, and 4; and as to implied contracts
generally, see p. 38, ante.

(e) Hughes v. Lenny (1839), 5 M. &W.183.

31

Contracts of Employment (Generally).

CH. XIX. s. 1. upon, a subsequent promise, without any new consideration, to pay an additional sum for the same services, is nudum pactum (d). Where, however, it is expressly agreed between the parties that the work shall be done gratuitously, the contract is nudum pactum, and the party undertaking to execute the work is not bound to enter upon or perform it (e).

Right of action in respect of.

Service for legacy.

Service for kindness.

Service for remuneration

at discretion of employer.

Service for remuneration out of par

And a contract to render services is not binding, if there be no corresponding obligation to receive them (f).

No action can be maintained for services performed upon an undertaking that the plaintiff was to make no charge, but that he should receive a legacy at the death of the person to whom they were rendered. But the mere fact of their having been performed in the expectation of receiving a legacy, will not take away the plaintiff's right of action (g).

Such service for kindness as is performed in journeying to become bail for another is deemed to be gratuitous (h).

In two cases (i) service for remuneration to be fixed by the employer has been held to give no right of action against the employer, and in one only (k), and that only by two judges out of three, has the contrary been held; and it is submitted that both on principle and authority such a service gives no legal right of action, but is merely a gratuitous service in expectation of its being turned into a service for reward or being made otherwise remunerative, as by recommendation to another employer, or in reliance on the honour of the employer.

An employer can relieve himself from personal liability by procuring the employed to rely for his remuneration solely on a ticular fund. particular fund (1).

Contract by servant for confidential relations.

(b) Implied Contract not to disclose Secrets.

The clerk of a professional or business man is under an implied contract not to make public professional or trade secrets which he learns in the course of his employment, and he will be restrained by injunction from publishing such secrets (m).

(d) Harris v. Watson (1791), Peake, 72; 3 R. R. 654; Browne v. Crump (1815), 1 Marsh. 567; Newman v. Walters (1804), 3 B. & P. 612; 7 R. R. 886.

(e) See ante, Ch. I., sect. 2.

(f) See Pilkington v. Scott (1846), 15 M. & W. 657; Hartley v. Cummings (1846), 2 C. & K. 433; Sykes v. Dixon (1839) 9 A. & E. 693.

(g) Baxter v. Gray (1842), 3 M. & G. 771; and see Osborn v. Governors of Guy's Hospital (1727), Str. 728; Maddison v. Alderson (1883), 8 App. Cas. 467.

(h) Reason v. Wirdman (1824), 1 C. & P. 434.

(i) Taylor v. Brewer (1813), 1 M. & S. 290; Roberts v. Smith (1859), 4 H. & N. 315, in which both Martin and Bramwell, BB., appeared to disapprove of Briant v. Flight.

(k) Briant v. Flight (1839), 5 M. & W. 114; Parke, B., diss.

(1) Landman v. Entwisle (1852), 7 Ex. 632; De Vries v. Corner (1866), 13 L. T. 636.

(m) Merryweather v. Moore, [1892] 2 Ch. 518, per Kekewich, J.

(Secrets).

A solicitor is (see p. 515) bound by law not to disclose his client's CH. XIX. s. 1. secrets (n), and it is presumed that a barrister is similarly bound. Employment It is conceived that a doctor is primâ facie bound by law (see p. 491, post) to keep his patients' secrets (o).

Solicitor.
Doctor.

Banker.

"It is improper for a banker to disclose the state of his customer's account except on a reasonable occasion" (p); but the Hardy v. extent of the legal obligation of the banker in this respect is Veasey. doubtful (q), and it is even doubtful whether the banker is liable though special damage be proved (1).

(c) When Right of Action accrues.

To maintain an action for work and labour, the plaintiff must prove a performance of the work according to the terms of the contract; or if he has deviated from those terms, he must show that the defendant acquiesced in such deviation (s).

Where a party undertakes to work up the materials of another, his right of action arises so soon as he has done the work satisfactorily, and has given the other party an opportunity of ascertaining whether it has been properly done (t).

(d) Who to Sue or be Sued.

When the right of action in respect of, accrues.

proper party to sue or be

In general, the person who was originally retained to do the Who is the work, is the proper party to sue on a contract of this nature. But where the defendant had in the first instance employed A. to build sued. a machine; and A., having partially built the machine, assigned it and the contract to B., who completed the work upon the defendant's orders to go on, and his promise that he would see him paid; it was held that B. might sue for the price (u).

So the proper person to be sued is he on whose credit the work was done. Thus, the registered owner of a ship is not liable for repairs done thereto, unless they were done upon his credit; and, although the fact of ownership may afford primâ facie evidence of his liability for necessary repairs, still this presumption may be rebutted, by proof of other circumstances showing that, in fact, no credit was given to, or contract made with him (x).

(n) Taylor v. Blacklow, 3 Scott, 614. (0) See "Medical Etiquette," by A. Carpenter, M.D., in Glenn's Laws affecting Medical Men, at p. 367.

(p) Walker on Banking, p. 33. (9) See Hardy v. Veasey (1868), L. R., 3 Ex. 107.

(r) See ib., per Martin, B., distinguishing Foster v. Bank of London (1862), 1 F. & F. 214, in which Erle, Č.J., left the question to the jury, who found for the plaintiff with more than 4007.