Lapas attēli
PDF
ePub

Y.

YARBOROUGH v. The Bank of England, 16 East, 6; 14 R. R. 272

AGE

298

YARMOUTH v. FRANCE, 19 Q. B. D. 647; 57 L. J. Q. B. 7; 36 W. R. 281 523 Yates v. Aston, 4 Q. B. 182; 3 G. & D. 351

v. Boen, 2 Str. 1104

[ocr errors]

v. Eastwood, 6 Exch. 805; 20 L. J. Ex. 303

v. Freckleton, 2 Doug. 625

v. Hoppe, 9 C. B. 541; 14 Jur. 372; 19 L. J. C. P. 180

v. Pim, 1 Holt, N. P. C. 95; 6 Taunt. 446; 16 R. R. 653

Yea v. Fouraker, 2 Burr. 1099

541

170

89

629

70

134

690

Yeo v. Dawe, 53 L. T. 125; 33 W. R. 739.

158

York, &c. R. Co. v. Crisp, 23 L. J. C. P. 125; 14 C. B. 527

429

Yorkshire Banking Co. v. Beatson, 5 C. P. D. 109

281

Young, Ex parte, 17 Ch. D. 668; 50 L. J. Ch. 824; 45 L. T. 90

483

v. Austen, L. R. 4 C. P. 553; 38 L. J. C. P. 233; 21 L. T. 327
18 W. R. 63

[merged small][ocr errors][ocr errors]

v. Grote, 4 Bing. 253; 12 Moore, 484 YOUNG. LEAMINGTON, 8 App. Cas. 517; 57 L. J. Q. B. 292; 49 L. T. 1; 31 W. R. 925

55

300

Z.

ZOUCH v. Parsons, 3 Burr. 1794

179

Zunz v. S. E. R. Co., L. R. 4 Q. B. 539; 38 L. J. Q. B. 209; 20 L. T. 873 432

ADDENDA.

At p. 222, as a second paragraph to note (x), add, "The discretion under s. 39 of the Conveyancing Act, 1881, to remove restraint will not be exercised to raise money for payment of debts arising from the extravagance of the married woman or her husband, or from loans by a professional moneylender: Pollard's Settlement, In re, [1896] 1 Ch. 901.”

At p. 368, as note to condition of s. 14, subs. 1, of the Sale of Goods Act, 1893, add," Evidence of what took place prior to the making of a contract is admissible to raise the implication of this condition: Gillespie v. Cheney, [1896] 2 Q. B. 59;" and as note to proviso of the same sub-section, add, "A contract for the sale of coals under a particular description known in the coal trade is not within this proviso. Ib."

At p. 539, and at p. 674, for "The Limitation Act, 1633," read, "The Limitation Act, 1623."

At p. 596, to note (1), add, "[1896] A. C. 166."

At p. 718, add to note (o), "In Willson v. Love, 65 L. J. Ch. 474, C. A., it was held that where a contract contains a condition for payment of a sum of money to secure the performance of several stipulations of varying degrees of importance, such sum is primâ facie a penalty, and not liquidated damages."

[blocks in formation]

THE term Obligation is used by the Roman jurists, and by Definition of Pothier in the preliminary article to his treatise on Obligations, terms. as denoting, in its proper and confined sense, every legal tie which imposes the necessity of doing or abstaining from doing any act; and as distinguished from imperfect obligations, such as charity and gratitude,—which impose a general duty, but do not confer any particular right; as well as from natural obligations, which, although they have a definite object, and are binding in conscience, cannot be enforced by legal remedy. English lawyers, however, generally use the word obligation in a more strict and technical sense, namely, as importing only one particular species of Contracts, that is, Bonds (a); and they adopt the term "Contract" when they wish to convey the more extensive idea of the responsibility which results from the voluntary engagement of one individual to another, as distinguished from that class of liabilities which

(a) Co. Litt. 172 a. See Bro. Abr., EL Abr., and Bac. Abr., tit. Obliga

tion. In Com. Dig., Bonds are treated
of under the head Fait.

C.C.

B

kinds of

Contract.

CH. I. s. 1. originate in torts, or wrongs unconnected with agreement. In the language of our law, therefore, the general term Contract comprises every description of agreement, obligation, or legal tie, whereby one party binds himself, or becomes bound, expressly or impliedly, to another, to pay a sum of money, or to do or omit to do any particular act: whereas the term Covenant is properly applied, to denote a contract under seal; and the term Agreement is rarely used, except to denote a contract not under seal (b); whilst the term Promise is used to signify any mere parol engagement by one person with another, where there is no consideration for the promise, nor any corresponding duty on the part of him to whom it is made.

Different

kinds of contracts.

It is not, however, very material to consider the particular meaning which is generally attached to these various terms. The essential distinctions between the different kinds of contracts constitute a much more important subject of inquiry. These distinctions are clearly ascertained; and-as they assign to each class of contracts attributes and consequences of the most marked character -they demand our notice before we discuss in detail the subjectmatter of this work.

Contracts, then, or obligations ex contractu, are of three descriptions, and they may be classed, with reference to their respective orders or degrees of superiority, as follow:-1. Contracts of Record; 2. Specialties; 3. Simple Contracts.

Contracts of record.

SECT. 2.-Contracts of Record.

1st. Contracts or obligations of record consist of judgments, and recognizances (c); and these are of superior force, because they have been promulgated by, or are founded upon, the authority and have received the sanction of, a Court of Record (e). Their existence is in general triable only by an inspection of the record itself (f); no consideration is necessary to render

[merged small][merged small][merged small][merged small][ocr errors][merged small][merged small]

them binding; nor can the merits of a judgment ever be questioned by an original action, either at law or in equity, it being conclusive, as to the subject-matter thereof, and as between the parties thereto, until it is set aside or reversed (g). 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 (i).

CH. I. s. 2. Contracts of Record.

SECT. 3.-Contracts under Seal.

(a) Form and Delivery.

under seal.

Contracts or obligations under seal, or specialties, such as deeds Contracts and bonds, are instruments which are not merely in writing, but 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 (1), 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 suffidelivery 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

(g) Per Lal. Mansfield, Moses v. Macforlan (1760), 2 Burr. 1009; and see Flower v. Lloyd, (1879) 10 Ch. D. 327 ; Ez parte Lennox (1885), 16 Q. B. D. 415, C. A.; Ex parte Scotch Distillers 1888), 22 Q. B. D. 83, C. A.

(A) “Jud. Act, 1875," R. S. C. 1883, 9. LVIII.

i) De Medina v. Grove, (1846) 10 B. 152.

See Anson's Law of Contract, II., 8th ed., pp. 49 et seq., and 19, post; and see too an article in "Law Quarterly Review," Vol. 3 7, by John W. Salmond.

Bac. 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, which either, in itself, passes an interest or property, or is in affirmance of something whereby an interest or property passes, is a deed. Per Bovill, C.J., Reg. v. Morton (1873), L. R., 2 C. C. 22, 27.

(n) Co. Litt. 36 a.

(0) Id. And see Tupper v. Foulkes (1861), 9 C. B., N. S. 797.

(p) Xenos v. Wickham (1867), L. R. 2 H. L. 296.

of.

CH. I. s. 3. under Seal,

Contracts

Delivery as

an escrow.

witness that he delivered it as his deed, and yet kept it in his own possession; but nothing further transpired to show that he did not intend it to operate immediately, this was held to be a good delivery (q). 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 (q).

A party may likewise deliver a deed as an escrow, that is, so 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, 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.

to a

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 (r). 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

[blocks in formation]

(s) Co. Litt. 36 a.

(t) 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

It

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 consideration is in fact good but not valuable, it will be of course desirable to express it in the document to preserve it from the suspicion attaching to a contract 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 if the husband becomes a bankrupt before the property is actually transferred.

« iepriekšējāTurpināt »