^Ma THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES I 1 THE PHILOSOPHY OF LAW. PHILOSOPHY OF LAW: NOTES OF LECTURES DELIVERED DURING TWENTY-THREE YEARS (1852-1875) IN THE INNER TEMPLE HALL, LONDON. BY HERBERT BROOM, LL. D., Late Pro/essor on Common Law to the Inns o/ Court. " His utere mecum." — HOR. INIEW YORK: BAKER, VOORHIS & CO., PUBLISHERS, 66 NASSAU STREET 1876. Baker & Godwin, Printers, 35 PARK ROW, s. T. K so PREFACE TO THE AMERICAN EDITION. The author of the following pages will require no introduction to the legal profession in America. To the general reader it need only be said that Dr. Herbert Broom, as the author of Commentaries on the Common Law, Commentaries on Constitutional Law, and the work on Legal Maxims, has long en- joyed the highest credit and reputation as a writer on legal subjects. As professor on common law to the Inns of Court, London, his lectures for nearly twenty-five years, ending only last year, have been well known to English students ; and it is from notes of these lectures that the author has drawn the material, the result of long and careful thought, for a statement of legal principles at once concise, lucid, and comprehensive. Dr. Broom has only attempted, however, to give, within the compass of this work, the elements of the ex- isting law of England. These he has illustrated and enforced bv references to the most recent cases and 2084188 VI PREFACE. statutes ; tliougli, of course, the princii)les on which they rest were settled centuries ago. Except inci- dentally, and as needful in the discussion of ^;r/;i- c/ple.% no attempt is made in the following pages to expound rules of evidence and procedure, and. merely statutory regulations ; but we are given the outlines of that " rational science founded upon the universal principles of moral rectitude," which make the book as instructive and sujxacestive to the Amer- ican as to the English reader. Indeed, the law in its most general sense, re- garded as "a rule of conduct," is founded upon principles recognized by all civilized communities ; and whatever differences in the mere administration of the law may appear among neighboring states, it will be found that " the reason of the law " is everywhere the same. But the law, while it concerns itself mainly with principles, is not a fixed science. Its definitions are not fixed and determinate like those of geometry, and are not therefore, and cannot in the nature of things be, certainly and positively expressed. A judge never decides general principles. He decides a case. It is for us to deduce the general principle afterwards. The reason is, that when a legislature promulgates a law, or a judge decides a case, neither of them being superhumanly gifted can PREFACE. Vll foresee cases which must subsequently arise, and which will involve questions of a more complicated and equivocal character, and will ^ then require a new interpretation of the statute, or a modification of the rule of law laid down in the former case. Courts do not therefore content themselves with merely deciding a particular controversy, and doing justice between the present parties ; but they seek to discover and enforce certain principles, just and reasonable in themselves, by which not onl}^ the present controversy, but every future controversy of like nature, may be determined. At the foundation of eveiy legal judgment there is a j^ositive rule of law. To discover this rule by precedent cases — stripping from these cases all that is peculiar to them, not only as to facts, but also as to forms of expression employed by the judges — and by abstraction and. induction arrive at the omtia decidendi^ or that general principle or ground at the foundation of all the decisions on the subject, this is the work of the lawyer and the judge. It is also, in a very high degree, the work of the text writer. It is for him (if he duly magnifies his ofiice and recognizes his high calling) to compare, adjust, and reconcile precedents — to discover their analogies and distinctions — and to give us, as the result, those general rules and principles which lawyers and VI u PREFACE. judges arc called upon to apply to the daily con- cerns of life. In the following pages Dr. Broom has given his readers only the results ; he has not given us all the methods by which he has reached them. But aside from its eminently practical character and useful- ness to the student and practicing lawyer, the book furnishes a most admirable example of the right method of stating and illustrating legal principles. New York, July, 1876. CONTENTS. ^ CHAPTER I. PREFATORY OBSERVATIONS. THE PROVINCE OF LAW. With what legal science concerns itself Sources of our common law .... Its doctrines, how enunciated . Appellate courts, their functions Legal principles, remarks as to . The province of our common law . Civil and criminal procedure, how distinguished Tests for distinguishincr between them FAOI 17 18 20 22 23 24 25 31 CHAPTER II. A CONTRACT— WHAT IT IS. A simple contract, how defined . Ingredients in it . Privity, what and how exemplified Consent is involved in the idea of contract Ratification, doctrine of, considered An act illegal and void cannot be ratified Implied contract, what, and instances of it The intention of contracting parties, will, if ried out ..... possible be car- 35 36 40 43 46 48 48 52 X CONTENTS. FiOB Assessment of dam ap^os for breach of contract ... 56 Liquidated damages, what they arc . . . . .58 Fraud, how it aflects a simple contract .... 50 Illegality, its efi'ect on a contract . . . . . G2 Of contracts opposed to publio policy .... 65 The question — what is a contract ? briefly answered . . 66 CHAPTER III. MERCANTILE CONTRACTS. A mercantile contract, what it is 68 The ingredients in it considered ..... 69 Privity must exist as between the parties to it . . . 72 The intention of parties may affect their contract . . 75 add a term to it . . .79 Mercantile usage may affect a contract . . . . 81 by explaining its language . 81 by adding a term to it . 83 by its inherent authority . . 85 A mercantile contract may be vitiated by fraud . . 87 Illegality may affect a mercantile contract . . . .92 Remarks as to mercantile contracts ..... 95 CHAPTER lY. WRITTEN INSTRUilEXTS. Contracts in writing, how classified ..... 96 96 99 101 109 118 119 120 123 127 Written contracts not required to be in writing Contracts required to be in writing . guaranties ..... contracts for the sale of goods . Acknowledgments of debts .... Contracts in writing under seal Characteristics of a deed .... A bond, what it is, and remarks as to it . A covenant, what it is, and remarks as to it . CONTEMNS. XI CHAPTER y. LEGAL PRINCIPLES APPLIED TO CONTRACTS. PAGE Introductory observations . . . . ... 133 Instances exemplifying the subject : the contract of suretyship . . . . .134 check bearing a forged signature . . . 136 policy of life insurance ..... 139 contract performance of which becomes impos- sible . . , , . . . .142 claims against railway companies founded on con- tract . . . . . . .145 in respect of loss of tra'n . . . 145 personal hurt . . .147 duties owing by traveller to railway company . .151 CHAPTER YI. A TORT— WHAT IT IS. Meaning of the word tort . . . . . .153 Torts to the person, land, or goods .... 153 Infringements of literary and other rights . . . 156 Rights of action founded on : breach of duty . . . . .158 negligence ..... 169 malice ...... 187 fraud 192 Tests for determining whether an action for tort is main- tainable ........ 194 CHAPTER yn. LEGAL PRINCIPLES APPLIED TO TORTS. Introductory observations . . . . . .107 Instances exemplifying the subject : negligence in lieeping a bull ... . .193 xu CONTENTS. PlOB stealing money deposited with a bank . . 201 negligence in regard to cattle .... 202 breach of duty in lending an unruly horse . 204 wrongful dealing with jewels pledged . . 205 bodily hurt done to complainant's servant causing his death 208 right of the finder to bank notes which have been lost 210 CHAPTER YIII. A CRIME— WHAT IT IS. Introductory remarks 213 The question — " what is a criminal act?" considered . 214 An overt act — what, and how to be proved . . . 215 General characteristics of crime ..... 221 it concerns the public 221 it prejudices the public .... 221 a guilty intent or mind is an ingredient in it 222 instances of this .... 223 exceptions to the rule .... 227 proof of guilty knowledge . . 227 Criminal acts done forcibly : homicide 234 robbery ...... 237 burglary 23l> larceny 244 oifenses akin to the above .... 251 Criminal acts involving : breach of duty 253 negligence 254 malice 256 fraud 262 Concluding remarks ....... 264 CONTENTS. XUl CHAPTEE IX. LEGAL PRINCIPLES APPLIED TO CRIMES. PACK Introductory observations . . . ^ . . . 267 Instances exemplifying the subject : death caused by the kick of a vicious horse . 267 bodily hurt wrongfully caused in pursuit of wild- fowl . ' . . .268 in the illegal manufacture of fireworks . . . 270 stealing of a lamb ...... 270 things fixed to the freehold . . . 272 wild animals ..... 272 false pretense in selling a gold chain . . . 273 fraud on Post Office Savings Bank . . 274 cashier of bank ..... 277 indictment for homicide after conviction for an assault 279 Conclusion 280 *j»* For References to Cases, Ac, cited in the Text, see pp. 281 et seq. De. Bkoom in his short, modest preface, sajs this work " exhibits the elements of our existing law, vouched for bj reference to recent cases and statutes, though resting on principles wliich were settled centuries ago ; " and sub- mits it " as the result of much thought devoted to the adapting of legal knowledge to the ordinary concerns of life." THE PHILOSOPHY OF LAW. CHAPTER I. PREFATORY OBSERVATIONS. THE PROVINCE OF LAW. Jurisprudence is " a rational science, founded upon the universal prin- ciples of moral rectitude, but modified by habit and authorit}'." — Lord Mansfield. " Let us consider wherein the law consists, and we shall find it to be, not in particular instances and precedents, but in the reason of the law." — Lord Holt. " II faut des tribunaux." " Ces tribunaux donnent des decisions. EUes doivent etre conservees ; elles doivent etre apprises, .pour que Ton y juge aujourd'hui comme Ton y jugea hier, et que la propriete et la yie des cito- yens y soient assurees et fixes comme la constitution meme de I'etat." — Montesquieu. 1. Legal science coocerns itself with — 1st, prin- ciples, and 2dly, j)rocedure. The study of proced- ure, however, is not so attractive as that of princi- ples, nor can the mode of acquiring a knowledge of procedure be made inviting. Principles of law, therefore, not procedure, will in the following pages be expounded ; reference being made to rules [^of evidence, and the mode of proving facts, when needfuL 18 THE pniLOsopiiy of law. 2. Our common law lias come to us from very many sources, and liaving adopted portions of other legal systems, has modified and readjusted tli(Mn ; its province has thus been mucli extended, and our law has liad from time to time not merely to acknowledge new rights, Lut to devise new reme- dies. From the Corpus Juris of Justinian — from our Anglo-Saxon ancestors, fragments of whose codes are extant — from customs handed down to us by tradition — from mercantile usages — from the charters of our kings, including some antecedent to tlie Great Charter — from enactments of the Legis- lature, and from decided cases, has the common law of England been derived. This vast mass of materials has been drawn and blended tosjether very gradually,' and is constantly being added to and altered. Important doctrines of the Roman law especially have been interwoven with our own, and many local customs connected with landed prop- erty, of which the origin is lost in antiquity, are still recognized as binding. 3. The province of law is being continually in- creased by statutory provisions, which either create, alter, or declare, and something is now being done towards the improvement and simplification of our statute book by consolidating, and from time to time codifying, certain branches of the law, and by PREFATORY OBSERVATIONS. 19 expunging from its pages obsolete and repealed en- actments. Statutes also — besides creating positive law — have greatly added to, or rendered more definite, the jurisdiction of our courts ; very many matters have thus been brought within such juris- diction, and statutory provisions have sometimes defined the procedure in our courts — have some- times amplified their powers. 4, Our Legislature usually abstains from inter- preting in an authoritative manner a law which it has made ; though sometimes it does so by a declaratory enactment. Hence numberless ques- tions as to the construction of statutes have arisen, and the solutions arrived at seem to show that where the language of the Legislature is plain and unambiguous, no considerations of convenience or public policy can influence the court to affix to it a meaning different from its literal and ordinary sense. The court will also strive to give to statu- tory language its full eff'ect, and will construe one part of a statute by another, so that the whole may, if possible, be operative. Quite recently it was said,^* " The acts are the law of the land, and we (the judges) do not sit as a court of appeal from Parliament. We have no authority to act as re- gents over Parliament, or to refuse to obey a statute * The references to cases will be found at the en;l of the work. 20 THE PHILOSOPHY OF LAW. because of its rigor." Our judges always strive to keep within the spirit, if not ^vithin the precise words and literal meaning of an act of Parliament. 5. The doctrines of our law are enunciated in decided cases — now published in an authentic form — and in the treatises of learned writers, of whom Littleton, Coke, and Bacon may especially be named. Cases which have been judicially recognized and thus have become precedents, must be conformed to, though sometijnes, after the lapse of years, they are found to have been erroneously adjudged ; when this is so, either the precedents will still be followed, on the ground that it is inexpedient to disturb the established law, or they will be expressly dissented from and overruled. ^ In a case^ having reference to the poor law it Avas observed, per juclicem : "The case is governed by a long series of decisions. . . . Looking at the reasons for those decisions I think that they are founded on a mistake. Where it is quite clear that there is a mistake, we are not bound to follow a previous case, Init we may act here on the maxim, communis error facit jusP G. The above maxim, however, cannot fairly be used for* casting opprobrium upon our law. A dictum, resolution or judgment which has long been accepted and recognized by the profession will be PREFATORY OBSERVATIONS. 21 dissented from, if shown to have been erroneous ; and although the hardship originally caused by it cannot thus be undone, the error atvall events will be set right. Of this one notable example must suffice : In a case ^ decided temj). Lord Ellenbor- ough (a. d. 1807), it was held that a creditor who had insured the life of his debtor for the amount of his debt, and who after the-debtor's death was paid in full by his executors, was precluded from recov- ering uj^on the policy. This case was decided wrongly upon a false analogy — the court holding that a policy of life insurance is a contract for indemnity, and that an action upon it is founded on a supposed damnification of the plaintiff occasioned by the death of the assured, existing and continuing to exist at the time of action brought ; and reason- ing from this analogy the court held that j)ayment of the debt barred the right to recover on the policy. This decision, however, many years after it had been given, was called in question, and the fallacy pervading it was exposed, it being held'* that a life policy in no way resembles a contract of indemnity ; it is a mere contract to j)ay a sum certain on the death of a person, in consideration of the due payment of a fixed annuity for his life, the amount of the annuity being calculated according to the probable duration of such life. Therefore 22 THE PIIILOSOniY OF LAW. the plaintiif iu the older case ought to have re- covered. 7. But although a slip in administering justice sometimes occurs, the authority of decided cases is very great. The reasoning on which a judgment rests is almost invariably given, and Lord Mansfield, we are told,^ endeavored " to render the triljunal where he presided not only tlie instrument of immediate justice, but an instructive seminary to such as were engaged in professional studies." In the appellate tribunals judicial errors are for the most part set right, and uniformity in the exposition of law is thus to a great extent insured. Were no right of appeal allowed to an unsuccessful suitor, " it would be very easy for judges by con- struction and interpretation to change even a written law, and it would be most easy for the judges of the common laws of England, whicli are not written, but depend upon usage, to make a change in them." ^ The judges of our appellate courts must get lesral knowledsie from the same sources as inferior judges, but their duty sometimes is to examine pre- cedents de novo^ and in doing so they may find that a long course of precedents has originated in mis- take, or that the opinion of the profession upon a particular point has been erroneous. Admitting the difference between a decision or a precedent in PREFATORY OBSERVATIONS. 23^ a Court whence appeal lies and in a court of the last resort, the highest court is bound to view with respect the practice, decisions ^nd precedents in the court below as evidence of the law, and only to overrule a decision in which the law has been mistaken. The main difference between the su- preme and the inferior court is this: the latter might feel itself bound by its own j^recedents, though erroneous, whereas by the former such pre- cedents would be overruled.^ 8. Leading principles regulate and govern every department of our law, though they are sometimes applied with modifications in order that justice may be done. Nor need any such modification of a legal principle, when it occurs, surprise us, because the relations of individuals to each other in this coun- try, and the rights or liabilities which result from their dealings together, are exceedingly diversified, founded in part on the feudal law, in part on our customary unwritten law, and in part founded on om' law merchant, which is of comparatively recent extraction, and yet may challenge in importance comparison with the other two. 9. An apparent conflict bet^veen legal principles may often be explained on close examination of the facts to which they were respectively applied. And throughout this volume every proposition laid 24 TiiK liiirosoi'iiy of law. down has either Leen illustrntcil ]>y facts upon ■which judgment lias actually Ixcn jn'onounced, or has been vouched by reference to the ])oint and ratio decidendi of a case, or the principles deducible therefrom. These matters have been carefully con- sidered, so that the reader, if unwilling or unable consult tlie report itself, may feel reasonable confi- dence that the extract from it set before him is correct. 10. The province of our common law, i. e., of our law as administered in the common law divis- ions of the High Court of Justice and on appeal from judgments there given, as well as in the county courts, and some other inferior tribunals, may be thus shortly stated. Our common law concerns itself, 1st, with con- tentious matters arising between private ]K'rsons ; 2dly, with matters affecting the community. It supplies remedies, therefore, for infringement of private rights, and inflicts punishment for offenses against the public. Many other and dissimilar matters, to which sj^ecific reference cannot be made in this worlv, also come under the cognizance of our courts ; ex. gr.^ questions connected with the ad- ministration of the poor law — with sanitary enact- ments — statutes regulating municipal corporations, railway companies and associations, incorporated PREFATORY OBSERVATIONS. 25 or otherwise — are daily argued before them and resolved. Such matters, I repeat, how important soever they may be to the welfare of society or of individuals, cannot here be taken notice of. They stand somewhat apart from the ordinary routine and curriculum of law, and have been sep- arately treated of by writers of established name and reputation. 11. Suffice it here to say that civil procedure is for the most part made ancillary to the asserting of private rights, whilst criminal procedure is princi- pally directed towards insuring these objects — the maintenance of the public peace, the observance of morality, at all events where any deflection from it might tend to prejudice the public ; criminal pro- cedure is designed also for insuring the Stability of the property, the security of the person of every member of the community. The considerations necessary for determining w^hether a private right has been violated are differ- ent from those appropriate for deciding whether punishment should ensue upon an act. 12. Thus an action for a trespass to land is founded on the idea that complainant's right to the exclusive occupancy and enjoyment of it has l^een Avrongfully interfered with. He alleges, for in- stance, his ownership and occupancy of a certain 26 THE piiirosoriiY of law. farm, tlirougli a part of wliicli runs a private road, bounded by a hedge, and separated from plaintifl[''9 fields on either side ; that defendant liad wrong- fully claimed to use this road for his horses and carriages as being a public road, though warned that it was not such ; that on a day specified defendant came witli a cart and horse, servants and workmen, forcibly used the road, and broke down and removed a gate placed across it y)y the plaintiff; further, that defendant then with his servants and workmen damaged plaintiff's hedge, and so forth. The wrong here complained of is clearly a pri- vate wrong, with which, if involving no riot or breach of the peace, the public is not concerned. If, however, a public road or footway be obstructed by a gate placed across it, a public nuisance would be created, in respect of which an indictment might be maintained; for our criminal law tries to protect rights by prohibiting undue interference with them, and by annexing punishment to an infraction of them. The rights of property it scrupulously guards, .discriminating, however, between rights the infringement of which may be alaruiing or danger- ous to the public, and rights of which the invasion may, as between man and man, be reasonably com- pensated by pecuniary damages. PREFATORY OBSERVATIONS. 27 13. The nature of a private duty, i. e.^ of a duty owing by one man to another, may be illustrated by the case of an excavation unjustifiably made so near to the confines of a neighbor's land, that his house, which has acquired a prescriptive right to support, in consequence thereof sinks and becomes ruinous. Here the duty violated is obviously not owing to the public at large, but to one individual in particular — the owner of the adjoining land and house. The breach of such a duty under the con- ditions stated is actionable,^ not indictable. A question not long since arose — whether a duty was imposed on a dock company to provide access to and egress from a ship in a dock, and as to their liability for damage caused by their allow- ing a dangerous gangway to be used. It was held that a duty was imposed upon the dock company either to have made the gangway safe, or to have given notice of its dangerous condition to the plaintifi", who had gone on board a ship on busi- ness. ^ Questions as to the existence, nature and obli- gatory force of duties alleged to be owing by one man to another, are continually arising, and many such will be stated and discussed in Chapters VI and VII of this volume. 14. Fraud may be directed against an individual 28 TIIK rillLOSOIMIV OF LAW. specifically or against the i)ub]ic. Let us suppose tliat the vendor of a jewel is guilty of deceit iu selling it — that he is shown to have been actually and fraudulently cognizant of the falsehood of some re])resentation made by him with respect to it — that he lias sold it as and for that which it is not ; under such circumstances the vendor Avill be liable to a civil action for the fraud of which he has been guilty, and the damage thence resulting.^'^ The essence of the misdemeanor of cheatinej at common law is a design to impose on the credulity of others, and to induce them to believe a thing that is not true — this being usually done to benefit the defendant, and always " to the evil ex- ample" of the community. These last words indi- cate the distinction between a public and a private fraud — between the species of fraud which ought to be repressed and punished, and that kind of fraud aimed at an individual rather than at the public, against which a man should be upon his guard, and which, if committed to his detriment, is actionable only. 15. Cases involvius: fraud are often under the notice of our courts, and the line is extremely fine which separates indictable from merely actionable fraud. Where goods sent on approval are, whilst unpaid for, wrongfully converted by their recipient PREFATORY OBSERVATIONS. 29 to his own use — or again, where goods are sold or pledged, and money is thus obtained in respect of them by some false statement as tovtheir quality — the nicest questions may arise. In the one case, were the goods converted with an intention to steal them ? In the other case, was there fraud affecting the public, or was it so entirely mixed up with con- tract as to come within the definition of a private fraud ? Do the proofs adduced point rather to un- due exaggeration of the quality and goodness of a chattel than to misrepresentation ? ^^ A fraud mixed up with contract lies indeed upon the very confines which separate the civil and the criminal law. A man may make himself liable to an action, because he has stated something which went beyond the exact line of truth, or has con- cealed some material fact w^hich oug-ht to have been made known to the other contracting party. A man may honestly misrepresent — be may state as true something which he believes to be true, but which turns out to be untrue. Whereas to supj^ort a criminal charge, proof of the scienter, or guilty knowdedge, must be given, and of an intention to deceive and defraud in doing what is charged against the defendant. Hence is the impossibility in some cases of affixing criminal liability to the promoters or the directors of a company, who, by 30 THE PHILOSOPHY OF LAW. circulating false statements respecting its affairs, have induced third persons to become shareliolders in it to their great detriment.'^ 16. A conspiracy is an agreement to effect an unlawful purpose, or to effect a lawful purpose hy unlawful means, and such an agreement is by the common law of England an indictable offense. It is, indeed, fit that, if several persons deliberately plot mischief to an individual or to the State, they should be liable to punishment, although they may have done no act in execution of their scheme. For, where several persons thus concert together, confederate and combine, our law apprehends danger to the community from the mere fact of such confederacy ; persons so acting are, therefore, indictable, even though the object aimed at may never be accomplished, or may, if accomplished, in itself be unobjectionable. If, however, there be the fact of combination or confederacy and evidence of intent, these proofs will not necessarily suffice for conviction upon a charge of conspiracy. For in- stance, an agreement amongst themselves by mem- bers of Parliament to make defamatory speeches in the House of Commons respecting an individual not being a member of the house would not be in- dictable.^^ More harm would accrue to the public from restrictino: the freedom of debate in Parlia- PREFATORY OBSERVATIONS. 31 ment than from the agreement and confederacy sup- posed. 17. What tests then should be applied to an act for determining whether it be criminal or not ? They will be indicated in Chapter VIII of this volume. The primary tests, however, have been already stated. Does the act in question prejudice or tend to prejudice the public ? Was it directed against the community at large rather than against an individual ? Is it punishable ? The character of criminalty may be impressed on an act either by the common or by the statute law. An act of violence to the person is pri7na facie criminal as of evil example, against the peace, causing alarm to the public and a sense of want of security. So a nuisance prejudicial to the public is indictable, whereas in order that an action may be maintainable by a private person for that which amounts to a public nuisance, three things must be established : 1st. Plaintiff must show some partic- ular damage to himself beyond that which is suf fered by the rest of the public ; 2dly. The damage must be shown to have been direct ; 3dly. It must be shown to have been substantial, not fleeting or evanescent.^* 18. A customer gives to a carrier goods of a dangerous description to carry — requiring, there- 32 TIIK IMIILOSOl'IIY OF LAW. fore, more caution in their conveyance than ordinary merchandise — a duty becomes thus imposed by law upon the customer of this kind to give notice of the dangerous character of his goods to the carrier, in order that they may be carried with that degree of care, the absence whereof might entail danger on tlie carrier or his servants. The breach of this duty, if productive of damage, will be actionable. Suppose that a person puts on board sbip goods which are of a combustible and inflammable nature, the owner would clearly be liable to any one in- jured in consequence of their combustion, by reason of his wrongful omission to give notice of the na- ture of the goods Avhich he put on board.^^ In such a case the duty violated is declared by the common law, and although in general the obligations owing from a customer to the carrier, or vice versa, fall within the class of private rather than of public duties, it is conceivable that the breach of such a duty, as stated, might seriously concern the public, and so be criminally punishable. Indeed, the Court of King's Bench, many years since, considered the precise state of facts last put, and said that if a customer knowingly send on board ship goods of a dangerous kind without giving notice thereof — con- <; sideriug the peril so caused to the lives of those on board — the act amounts to a species of delin- PREFATORY OBSERVATIONS. 33 quency for wliicli the actor will be criminally liable and punishable/^ 19. Our law, as between party and party, tries to protect rights, usually by awarding pecuniary daina2:es for wrono-fiil interference with them ; some- times by compelling the restoration of 23roperty or the performance of this or that thing by the party in default, and sometimes in other ways. Occasion- ally an aggrieved person is allowed to redress his grievance for himself Subject to the condition that no riot be com- mitted, a nuisance may sometimes be abated, i. e.^ removed and put a stop to, by the person whom it injuriously aifects. " The treasurer of a county court has been held justified in breaking oj^en the offices of the registrar of the court, during the ab- sence of that official, in order to get at the books kept by him, with a view to their being audited.'^ Here no breach of the peace could have ensued from the act of violence in question. So if A. take goods out of the actual possession of B. against his will, B. may justify using force for retaking the goods, and so may set up a good ground of defense in an action of assault ; and if goods are obtained under color of a contract of sale, but really by trick and fraud, the semblance of a contract disappears — 3 34 TiiH rjiii.osoi'iiv OF law. the property in the goods does not pass, and they may be recaptured.'*' The law allows the commission of an assault in such a case, because the remedy l)y action would be dilatory, tedious, and perhaps inadequate. 20. An individual then, it must be admitted, is sometimes allowed to take the law into his own hands, and " right himself." The general rule, how- ever, proved or tested by the exceptions to it, has prescribed the procedure by action or by indictment as applicable respectively for the redress of a private grievance, no matter what its precise nature, and for the vindication of public justice. Therefore, throughout this book, the references have almost exclusively been made to cases thus raising — by action or on indictment — legal questions, curious, interesting or important. In dealing with facts out of which any such question is ev^olved, everything superfluous or irrelevant must be put aside, so that the very gist and essence of the matter may be got at. CHAPTER 11. A CONTRACT— WHAT IT IS. " Un contrat est une espece de convention . . une convention . . est le consentement de deux on de plusieura personnes, pour former entre elles quelque engagement, on pour en resoudre un precedent, ou pour le modifier." — Pothier. 21. Law being a science, the use of technical words in discussing it can scarcely be avoided ; the following explanatory definitions of certain terms used in this chapter are therefore at once put before the reader. The word " contract " conveys the idea of persons being drawn together in respect of some subject-matter and by some common motive ; a " simple contract," of which alone I shall here speak, is evidenced and authenticated by writing not under seal {post^ Chapter IV), by words, con- duct, and so forth ; " privity " indicates the tie be- tween and connecting parties. The word " con- tract " includes the idea of "privity." It involves also the idea of " consent " — that the parties have agreed to do or not to do something, which ought to be defined. Consent, moreover, may assume the form of "ratification " — of assent subsequent. 36 THK PHILOSOPHY OF LAW. 22. Althougli a "contract" is equivalent to an "agreement," it is in legal contemplation composite, involving three ingredients, viz., a recjuest, a consid- eration or quid pro quo, and a promise : a request from the contractor to the coutractee to do or to refrain from doing a specified thing ; a doing of or refraining from the thing specified, or at all events an undertaking or engagement to such effect by the contractee ; and a promise thereupon by the con- tractor to benefit by payment of money or other- wise the contractee. And in every simple contract, written, verbal, or partly evidenced by writing, partly by word of mouth or the conduct of the parties, for breach of which an action will lie, there must have been either express or implied the ingre- dients mentioned, viz., the request, the consideration, and the promise. 23. Familiarity with the above-mentioned in- gredients in a simple contract may be needed for testing its validity, inasmuch as one or other of them may disappear on applying to it the touch- stone of a legal principle. For instance, a father could not be held liable even for necessary food and clothing supplied by the plaintiff, a tradesman, for the use of his infant son, unless there were evi- dence to show either that the goods in question were ordered to be su2:)plied by the father, or that A CONTRACT— WHAT IT IS. 37 their user and enjoyment by the son received the father's sanction.-" The father would otherwise have been an entire stranger to the transaction — there would have been no request nor consent by him, nor privity as between him and the tradesman who supplied the goods. 24. Addressing myself for the moment to legal students, I would insist on the importance of testing one's aptitude in singling out and distinguishing between one and another of these main ingredients in a simple contract. The ingredients enumerated seem familiar enough, the order in whicli they have been mentioned seems natural and proper, yet it may not always be found easy to indicate with certainty and precision where in a contract obvi- ously enforceable at law — for breach of which an action would lie — each of these ing^redients is to be detected, how it is to be evidenced and established. Nor must this sort of self-examination be declined as too elementary or as unnecessary, for sometimes, in relation to some essential ingredient in a simple contract, differences of opinion have existed on the bench, and sometimes the ingredient is not easily to be discerned.^^ 25. As in the next chapter the consideration for a promise will have to be specially exemplified, I can here give but one or two instances of it. A. 38 THE I'HILOSOI'IIY OF LAW. being indebted to B., dies, and tlicii R assigns the debt to C, and enipowers liini to receive it. More- over, I)., wlio is A.'s executor, promises to pay it liim. Will an action lie at suit of C. against D. to compel payment of the debt ? Assuming that the statutory requirements as to written evidence of the agreement have been complied with, and that a memorandum of the contract signed by D., the party sought to be charged on it, is forthcoming {post^ Chap. IV), thei"e would still be an insur- mountable obstacle to C.'s success in such an action. Our law insists that there shall be a consideration for a promise to pay money. It thus protects per- < sons who are too free-handed, are reckless and improvident. The breach of a nudum pactum will not sustain an action.^^ If in the case put D. had promised to pay in consideration of C.'s forbearance to press and sue for the debt, an action might have lain at suit of the latter party against the former for the sum claimed ; moreover the compromise of a disputed claim made bona fide may be the consid- eration for a promise, even though it ultimately appears that the claim was wholly unfounded and unenforceable. " Every day a compromise is ef- fected on the ground that the party making it has a fair chance of succeeding, and if he hona fide believes he has a fair chance of success, he has a A CONTRACT— WHAT IT IS. 39" reasonable ground for suing, and Lis forbearance to sue will constitute a good consideration." -^ 26. An action may be maintainable upon the express ground that there was a want of considera- tion in some prior dealing between the parties to it, or that the consideration supposed to have existed has failed altogether or in part. Thus an action may lie to recover money paid un^ler a mistake of fact. Xo man should be deprived of money whicli he has thus parted with, and where it is against justice and conscience that the receiver should retain it. If A. pays money to B., supposing hirn to be the agent of C, to whom he owes the money, and B, is not such agent, it may be recovered back. If A. and B. are settling an account and make a mistake in summing up the items, and A. pjays B. 100^. too much, A. may recover it back. In any such case, not only was the money paid under a mis- take by the party paying it, but the retention of the money by its recipient would be against equity and good faith .-^ It not unfrequently happens also that where a transaction has taken place between parties, a state of thinscs arises in reference to it which was not con- templated by them, but is sucb that one party ought in justice and fair dealing to pay a sum of money to the other ; and then, to support an action for it, 40 HIE T'lIII.o^orilV OF LAW. tlic consifleratinii hcing ;i|)pai('iit in tlif money Avliicli lias got iii(() dcfenfl ant's pocket, tlie re([uest that it may aiiatient to remunerate his counsel or physician for work professionally done at his request. The general rule is that any man who bestows his labor for another has a rig-ht of action to recover from him compensation for that labor. But the law supposes a physician or a barrister to act without jiecuniaiy remunei'ation, and declines to imply any promise which would be counter to such presumption. This rule or rather presumption of our common law is founded on pub- lic policy, and in the case of the barrister — though not in that of the physician — is so stringent that it countervails even an express contract for remuner- ation. A S2:)ecial contract cannot have efficacy w^here there is thus an incapacity to contract.'^ 28. The word " contract," properly understood, involves the idea of " privity " and of " consent " (Art. 21); if there be no privity between parties, there can be no contract or agreement between them. Why should a man be bound by stipula- A CONTRACT— WHAT IT IS 41 tions to which he is altogether a stranger — to which he has not expressly or impliedly assented ? In a recent case the facts were of this kind : Plaintiff, an officer in command of troops conveyed over the Great Indian Peninsular Railway, sued that company for loss of luggage caused by defend- ants' allesced neg-lig-ence. To this action a defense was successfully set up, that when the loss occurred the plaintiff with his luggage was being conveyed under a contract between the defendants and the Indian Government, and that there was no contract with the plaintiff.^*^ The ground of decision in this case is widely applicable. Let us further suppose such a state of things as this. A. contracts with B. and undertakes to lay down a gas-pipe for him fit and proper for supplying gas from the main — the construction of the piping is defective, and gas escapes, whereupon C, a third person, unconnected with A., by negligently using a light to ascertain the cause of the escape explodes the gas, and so produces damage. Upon these facts A. will be liable to B. for breach of contract in not having laid down a proper pipe ; he will not be relieved from liability by reason that the imme- diate cause of the explosion was the act of C. C. will be responsible to B. for his negligent and wrongful conduct, in accordance with principles 42 THE rniLOsopiiY of law. hereafter stated (Chap. VI). As between A. and B., tliere is privity in virtue of tlieir contract. As between A. and C, there is no privity .^^ '20. An ajiparent lack of privity between parties may sometimes be supplied by the usage of a particular trade or profession : for instance, where personal property is settled before marriage the practice is that the lady's solicitor should draw the settlement, and that the intended husband should have the privilege of paying for it.^^ 30. With the rule requiring privity in a con- tract has long existed contemporaneously another well-known rule, which forbids the assignment of a mere right or chose in action / the assignee of such a right cannot sue the original contractor, for as be- tween these parties there is no privity. Where a right to sue in contract has become vested in A., enforceable against C, A. cannot assign or hand over to B. the same right, to be enforced against the same person in the name of B., though A. miglit for due consideration or by deed^bind himself to sue C. for the benefit of B. To this rule exceptions have been allowed in deference to mercantile usa2:e, or have been created by statute. Bills of exchange, promissory notes, checks, policies of life and marine insurance,^ and certain other securities, are assign- able. To some instruments, which are assignable A CONTRACT— WHAT IT IS. 43 under the law merchant, brief reference will here- after be made. The doctrine which forbade the assignment of a chose in action, though somewhat relaxed, was in ancient times very necessary ; its observance tended to repress litigation, to prevent the wealthy and litigious from buying up rights of action to the det- riment of their poorer neighbors; and the enforce- ment of this rule, subject to relaxations in favor of trade, was, doubtless, beneficial in repressing fraud and simplifying the mode of proof. Under the judicature acts the rule in question has been modi- fied only, not abrogated. 31. The reader having already inferred that " contract " involves the idea of " consent," as to this point little more need here be said. Upon a dispute between the overseers of two parishes re- specting the election of a sexton, and the payment of his salary, one of the parishes paid the sexton without the consent of the other, and brought an action for the money as paid for their use, where- upon Lord Mansfield said : " The dispute arises con- cerning the election of a sexton, and the way of trying it is by refusing to pay the sexton elected : the whole is notoriously in litigation. Under these circumstances, therefore, one parish paid the quota of the other in spite of their teeth. Then can it be 44 TUE PIIILOSOPIIY OF LAW. said that this action for money })aie asked, is the precise significance thereto attaching; ? Does it fix him with any, and, if so, w^ith what sort of liability? Or is he unaffected thereby, i. d, is he in the same position as any other holder 'pro tempore of the instrument, and not liable to be sued upon it ? The question proposed must be answered on refer- ence to the intention with which the signature was placed upon the check. A check payable to bearer may doubtless be indorsed in the full and complete sense of that word. It is, however, of common occurrence that a name is signed on the back of such an instrument meant as an acknowledgment of or receipt for the amount for which it was drawn, or as indicating that the check is paid in to the credit of a particular account ; at all events, not intended in any way to operate as an indorsement ; and when a man's name is written on the back of such an instrument without the intention of in- dorsing and making himself liable upon it, our law holds that he is not so liable. Here, as in many A CONTRACT— WHAT IT IS. 55 other cases, it considers tlie intent accompanying the act under notice, with a view to determining its character, and declines to saddle with responsibility as indorser, one who had no intention of incurring it.^^ 42. With a view to carrying out the intention of parties, it has been held that there may be an actionable breach of a contract before the time for complete performance of it has arrived/® An action for breach of promise to marry the plaintiff after the death of the defendant's father may be main- tainable before the death has happened, ex. gr., should the defendant in the mean time declare his intention never to fulfill his promise, and so re- pudiate and rescind \i}^ 43. Persons are generally free to contract as they please, conforming to the requirements of the customary or statute law, and if a contract, in no respect infringing legal principles, be entered into, and be suffered to remain uuresciuded, a jury — proof being giving of the breach of contract — will be directed that nominal damao-es at all events are recoverable, although no actual or substantial dam- age may have accrued from the breach ; the reason being that the law holds every man to his contract. If then a man positively undertakes for the happen- ing of a particular event, he may, if it should not •56 THE I'llll.OMtl'IlY OF LAW. liappen, incur ]i;il)ility for dainages; nor is there any liardsliip in lliis, because the ])()ssibility of the event not lia])j)ening must be suj)poserl to have l)een in his contemplation wlien he made the eon- tract.'''' To this rule, which is obviously founded in common sense, reference will again be made, and some qualifications of it will hereafter be specified. (Chaps. Ill, and IV.) 44. As regards the assessment of damages for breach of contract, it may here be opportune to observe that the party contracting or undertaking — and thus assuming an obligation which he is bound at the risk of paying damages to perform — can at most l)e made liable for such damasres only as might naturally have flowed from the breach of contract, or as might reasonably have been brought within his contemplation by notice or otherwise w^hen he entered into the contract or assumed the oblio-ation. A notice mis-ht indee 1 be so given as to be incorporated with and form part of the contract. Prima facie, damage actually resulting from a breach of contract is recoverable, provided it be such as may fairly be considered as arising directly, i. e., in the ordinary course of things, from such breach. If a man contracts to carry a chattel, and loses it, he must pay its value, though he mav dis- A CONTRACT— WHAT IT IS. 5T cover that the chattel was more valuable tlian he had supposed. When, however, the loss is not such as would in the ordinary course of things nat- urally arise from tlie breach of contract, but is of an exceptional nature, in the absence of some notice to the defendant of special circumstances, damages can- not be given for the loss. 45. What has been stated in the preceding arti- cle may be thus exemplified. A., being a goods car- rier, takes for conveyance machinery to be put up in a mill, without which the mill cannot work; he has no notice of the purpose for which the ma- chinery is intended ; if the machinery be lost in transitu, the carrier could not be made responsible for pecuniary damages in respect of the stoppage of the mill.°^ Recently a court of law was called on to dis- criminate between two items of damagjes claimed — one for inconvenience caused through breach of duty by a railway company in conveying II. and his wife to a wrong terminus, and another for ill- ness caused l)y their having to walk home from such terminus in inclement weather, and consequent medical expenses. The former of these heads of damage was allowed as the immediate result of breach of duty by defendants. The latter head of damage claimed was disallowed, as l)eing merely 68 TFiK rirff,08()i'iiY of law. connected with the l)r(!acli of duty l>y "u series of causes" intervening between the immediate conse- quence of the breach of duty and the damage com- plained of.^'* Again, the plaintiff', a commercial traveler, had sent his case of goods })y luggage train from Oxford to Liverpool without making any intimation re- specting it of any kind. There was a delay of two days in transitu. The plaintiff, how^ever, was held not entitled to recover the hotel expenses incurred by him whilst awaiting the arrival of the package. In any such case the question for the jury will be — has there been undue delay ? If so, nominal dam- ages, at all events, should be given, but it is difficult to see how the hotel expenses could be considered as naturally residting from non-delivery of the par- cel, or how they could be said to have been reason- ably in the contemplation of the parties when they made the contract.^ 46. The assessment of damages for breach of contract may be affected and facilitated by stipula- tions of the parties having reference to the contin- gency of a breach occurring, and specifying an amount to be paid in that event as and for liqui- dated, ascertained, and predetermined damages by the one party to the other. If, indeed, from the terms used such sum is to be paid rather as a pen- A CONTRACT— WHAT IT IS. 59^ alty for non-performance of the contract than as li- quidated damages, a court of law, adopting an equitable principle, allows the jury, to assess the damages at less than the named amount, which is thus treated as the limit — not as the precise meas- ure — of the damages. Upon this particular point nice distinctions are often taken in interpreting a contract.^ 47. Where A. is brous-ht into contact with B. in a matter purely of contract, a duty is imposed upon A. of this kind — to conduct himself honestly towards B., not necessarily disclosing everything in prejudice of the subject-matter of the contract, but answering questions concerning it truthfully, and by no means volunteering statements inducing to the contract, false or which are based in fraud. Cresclt iti orhe dolus — and fraud, we are told,^^ is where one man endeavo-rs to gain a personal ad- vantage to himself, either by concealment of the truth or by inducing another to believe that to be true which is not so. If, moreover, persons take upon themselves to make false assertions as to which they are ignorant whether such assertions are true or untrue, they must in a civil point of view be held as responsible as if they had asserted that which they knew to Ije untrue.'^*^ 48. The effect of fraud u]3on a contract is of this no TIIK I'llll.OSOI'IlY OF LAW. kind, — it rcn(]«^rs tlio contract voidable by or at the ■election <>f tjic jx-rsnn u])()ii Nvlioni sudi fVaiid has been practiced. It f^ives liim :m <)j)tioii to i-cscind the contract." That which bears the semblance of a contract may thus be vitiated by fraud, and the apparent right founded upon the contract may thus be put aside. So long since as Lord Coke's time it was lield that if an illiterate person have a deed falsely read, over to him, and he then seals and delivers the parchment, that parchment is nevertheless not his deed.^® x\ like principle may be applied to a con- tract not under seal. If a man write liis name across the back of a blank bill stamp, and part with it, and the paper is afterwards improperly filled up, he is nevertheless liable as indorser, because he in- tended — when signing his name — to indorse a bill of exchange to be afterwards filled up, leaving the amount, the date, the maturity, and the ])rincipal parties to the bill undetermined. Here was no fraud inducing to the contract and so vitiating it. Now let us suppose that the party was led to in- dorse the bill upon the assurance that it was some other instrument, for instance a guaranty (Chap. IV) — such a fraudulent representation might be set up as a defense to an action upon the bill, even iit suit of a iiolder of the bill for value before ma- A CONTRACT— WHAT IT IS. 01 turity, and ^sdthout notice of the fraud. The in- dorsement under these latter circumstances might be invalidated not merely on the grpund of fraud, but on the ground that the mind of the alleged iu- dorser did not accompany his signature — in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended.^^ This mode of lookins: at a transaction involving fraud is often applicable. A contract induced by fraud, if the objection to it be aptly taken, is regarded as void ah initio, or as never having had any legal entity. 49. A distinction must, how^ever, at once be noticed between the case where a contract may be rescinded on account of fraud, and the case where it may be rescinded on the ground that there is a difference in substance between the thing bargained for and that obtained. As reo-ards the former state of things, it is enough to show that there was a fraudulent representation as to any j^art of that which induced the party to enter into the contract sought to be rescinded. But an innocent misrepre- sentation or misapprehension as to the subject mat- ter of sale does not authorize a rescission unless there be a complete difference in substance between what was supposed to be, and what was got, so as to constitute a failure of consideration. For exam- ^2 TIIK PlIILOSOPnY OF LAW. pie, ^vllo^e a liorse is bouglit under a l>c'lief that it is sound, if ihv ])urcliaser was induced to buy by a fraudulent representation as to the liorse's sound- ness, the contract may be rescinded. If the pur- chaser was induced to buy the liorse by an honest representation as to its soundness, the purchaser must pay the price, unless there was a warranty, and even if there were a warranty he could not return the horse and claim back tlie whole price, unless tliere were a condition to that effect in tlie contract.^ 50. In general a contract framed in violation of the unwritten or of the statute law cannot be enforced. No action can be maintained upon it if the defense of illegality be put forward in the proper manner. And should a contract impugned as infringing the principles of our unwritten or cus- tomary law be really infected with such a vice, it cannot lay the foundation for an action — cannot if challenged be recognized by a court of law — cannot, in short, give to either contracting party any legal right or im])ose upon him any legal obligation. A. agrees to let to B. a lecture-room for hire, but before it has been used by B. ascertains that lectures of a blaspbemous nature or of an immoral tendency are to be delivered there. A. will be justified in breaking off and rescinding his engagement and in A COXTRACT— WHAT IT IS. 63 refusing to allow the room to be used for the pur- pose named.^^ A plaintiff, moreover, suing to re- cover money, who cannot present his case to the jury without disclosing the unlawful purpose in furtherance of which the money was paid would be precluded from recovering it in an action.^^ 51. Let us suppose an agreement between A. and B,, whereby A, agrees to serve as a seaman on board a ship of which B. is master, for a defined period, on a voyage from London to the foreign port and back to a final port of discharge, at monthly wages. Suppose that on arriving at the foreign j^ort B. purposes making another voyage within the terms of the agreement, but which would either be illegal, regard being had to the foreign enlistment act (59 Geo. Ill, c. 69), or would at all events ex- pose the ship's crew to personal risk of capture or otherwise, for breach of neutrality, at the hands of a belligerent power in amity with our crown. Would A., when cognizant of the facts and of the purpose of B., be justified in treating the agreement as having been broken and put an end to by him, in quitting the shi]^ and suing B. for breach of con- tract? A. would seem to be so entitled upon this intelligible ground, that B.'s undertaking really was to employ the crew for a specified period on board his vessel upon an ordinary commercial C4 TiiK riiiLosoruY of law. voyage, nut u})()ii n voyage siicli as projected, ^vlliell would expose the crew to greater danger than they had anticipated and bargained for/'^ Here the onus of j)roof wouhl he on A., and, the illegal act pro- posed or contemplated by B. having been estab- lished, a question of law would arise for the judge's decision — was A. thus justified in treating as rescinded the original contract between himself and B. ? If so, a further question, by no means free from difficulty, would be as to the amount of damages to be awarded, B., the defendant, being answerable only as causa causans, and for such damage alone as naturally, or as has sometimes been said " inevitably," resulted from his wrongful conduct. 52. The reason why evidence is admissible of fraud or illegality attending or inducing to the exe- cution of a contract is this: such evidence goes to show that the alleged contract never had any exist- ence in legal contemplation. There is a semblance merely of a contract, the substance of which disap- pears by reason of the fraud or illegality vitiat- ing it. This idea should be quite familiar to the mind of one who concerns himself with the law of contracts. It enables him to appreciate the impor- tant difference between a defense grounded upon matter posterior to the creation of a contract, and A CONTRACT— WHAT IT IS. 65 a defense grounded upon matter contemporaneous therewith, or perhaps antecedent and inducing to it. 53. Quite irrespective of cases involving fraud or illegality, in the sense in which those words are ordinarily used, many contracts might be specified, open to objection as opposed to public policy, to those considerations of a theoretical expediency, hard to be defined, by which our law is sometimes guided. The doctrine referred to is applicable to every class and subdivision of contract, unwritten or written. "The principle upon which courts of justice must go is to enforce the performance of contracts not injurious to society, and it would be absurd to say that a court of justice shall be bound to enforce contracts injurious to and against the public good." '^^ When accordingly the validity of a contract is questioned upon the ground that it is in restraint of trade, which is favored and encouraged by the law, we find that our courts, administering the law with a view to public expediency, have declined to sanc- tion any such contract where the restraint which it aims at enforcing is unreasonable ; and as an element in the inquiry whether such restraint is reasonable or not, even where the contract is under seal (Cha]). IV), our courts will look for some consideration 5 66 Tiir: riiiLosoniY uk law. (Alt. 25) to support the undertaking to aLstain from exercising the particular trade ; and if no such consideration Le found, the contract will Ije held invalid as unreasonable.^ A case of some interest falling within this part of my subject recently occurred. It concei'ned what are known as voting charities. A. and B. being subscribers to any such charity, and entitled to an equal number of votes at tlie election of a candidate, thus agree : If A. will give his votes in favor of B.'s candidate on this occasion, B. will vote for A.'s candidate at the next election. Such an agreement was held not to be illegal as opposed to * public policy, and an action will lie for breach of it.«« • 54. Matter set forth in the preceding pages may have enabled ns now to answer the question — What is a contract ? It is an aQ-reement between parties, containing certain ingredients, of which one or another may sometimes be with difficulty dis- cerned. A contract involves privity and consent, thougli not necessarily mutuality or reciprocity of obligation. A contract may be express, evidenced by writ- ing or by words, or implied either from the words used or from the conduct of the principals. Legal principles, however familiar in actions grounded A CONTRACT— WHAT IT IS. 67 "upon express, will be just as available in actions grounded upon implied contracts. Effect will, if possible, be given to the intention. of the parties. Fraud inducing to a contract, illegality at the very root of it, public policy violated by and protesting against it, to say nothing of other grounds of objec- tion less general and more technical in their nature, may be set up by way of defense to an action founded upon an implied, as they may set up in an action founded upon an express contract. Indeed, it may be said to follow a fortiori that since fraud or illegality — using this latter term in its broadest sense — will vitiate and nullify an express contract, the law will out of a transaction based in and con- taminated by fraud or illegality decline to imply a contract, promise, or undertaking. CHAPTER III. MERCANTILE COMRACTS. " Le commerce, ttl rjue la jurisprudence peut le considerer consiste, dans lc3 divcrses nt'gociations qui out pour objet d'operer ou de faciliter lea (^changes des produils de la nature ou de I'industrie, k I'effet d'en tirer quelquo profit. Le droit commercial se compose de toutes les regies relatives k la validite et k I'effet de ces n^gociations, ainsi qu'ii la maniere de juger les contestations qui peuvent en r6sulter." — Pardessis. " The custom or law of merchants is pai-t of the common law of thia kingdom, of which the judges ought to take notice." — Be.\wk3. " The mercantile law of this country is founded upon principles of equitj\'' — Mr. Jistice Elller. Lord Mansfield held " the law to be best applied when made subservient to the honesty of a case." 55. In the preceding cLapter a simple contract has been treated of quite generally ; its nature and attributes as well as the ins;redients in it haviusr been illustrated by reference indifferently to non- mercantile and mercantile contracts. The law mer- chant, however, although governed by principles identical with those already indicated, stands some- what apart from our municipal law applicable to non-traders, and in the following pages will l)e so I'egarded. 56. A mercantile contract is, in truth, a con- tract between mercantile persons relating to mer- cantile matters, and in it we look for the request, MERCANTILE CONTRACTS. 61^ consideration, and promise already spoken of (Arts. 22-27), The request perhaps may be deducible from the correspondence between the parties. A. negociates with B. for the place of foreman in some department of his business, or for the place of sales- man, and the negociation is arranged. A. having taken the place, and performed for a time its duties, is compelled to sue B. for non-payment of his salar}". The matter may be looked at thus: the request would be by B. to A. to enter his service, the con- sideration would consist in the acceptance of the place and performance of its duties by A., the promise would be by B. to pay the salary. 57. The consideration in a mercantile contract, though always to be found there, is sometimes peculiar. If A., having no authority to act as agent for B., assumes to do so, he will be held im- pliedly to warrant that lie has authority, and may incur liability for breach of this implied undertak- ing to plaintiff. The confidence induced by A. would be a sufficient consideration moving or pro- ceeding from plaintiff to support A.'s promise or undertaking that he had authority to contract. " By the law of England, persons who induce others to act on the supposition that they have authority to enter into a binding contract on behalf of third persons, on it turning out that they have no such 70 Tin-; I'lIILoSol'IIV OF LAW. {lutliority, may Ijc .suud I'oi- (huiiagcs lor tlic breacli of an implied warranty of authority." ^^ And so a person professing t<> practice a particular trade or })rofession, thereby holds himself out as possessing a reasonable degree of skill in that trade or pro- fession, and should he l)e found to have been unreasonably ignorant of it, may incur liability for damage thence resulting to a customer, patient, or client."^ Here the confidence induced by the pro- fessing of skill is a sufficient consideration for the promise to exercise it. (See Arts. 27, 38.) By analogous reasoning, misconduct in a servant may justify the master in discharging him. A clerk is retained for a year to keep a merchant's books, and impliedly undertakes and contracts that he is competent to do so. The clerk is found to be ignorant not only of book-keeping, but of arith- metic. Is the merchant bound to continue to employ him during the year? Common sense supplies the answer to this question — he is not. A master has been held justified in dismissing a domestic servant without notice or payment of a month's wages, which is the usual alternative, for disobedience to lawful orders ; '^^ and a master would seem equally entitled to dismiss without notice a servant who was found grossly incompetent MERCANTILE CONTRACTS. 71 for the work which he had impliedly undertaken to do.™ 58. Sometimes, where there has been a contract of sale between parties, a question as to considera- tion arises. In general, where there is a contract by one party to sell an article, and by the other party to pay for it — no time being named — these two acts are meant to be concurrent. The one is the con- sideration for the other of them, and when the article is handed over, the price agreed on for it should be paid. It may, however, chance that the thing alleged to have been sold was at the time of the sale colorable merely or non-existent ; or it may be found that the proj)erty in it had, by virtue of some antecedent contract, passed out of the vendor, so that under the alleo-ed sale nothino; iu truth passed to the so-called purchaser, from whom there- fore nothing can be recovered.''^^ 59. A failure of consideration may also })e where, on a sale of goods, there has been a com- plete difference in substance between what was supposed to be and what actually was taken by the buver, there havins: been no fraud at all in the transaction, but merely an innocent misrepresenta- tion or a misapprehension. In such case a rescission of the contract may be justifiable (Art. 49) ; and if so, the price paid for the thing in question may be 72 THE IMIH.OSOF'IIV OF LAW. leclaimed. INIuch nicety ma}', however, be needed in discriminatintr between the case where the sub- ject-matter of tlie contract is a sj)ecific thing which the buyer is to take, subject to all faults and im- perfections, and the case where the subject-matter of the contract is a chattel not specific, but refer- able to a general class of chattels, and understood to possess the qualities attributable to chattels of such or sncli a designation.'^^ The test here appli- cable for determining the right of the purchaser to dispute the sale is indicated by the question — Has he 2:ot what he barg-ained for and meant to buy ? 60. In a mercantile as in a non-mercantile con- ti'act (Arts. 31, 36), the promise, if express, should be definite. The terms of the contract must be complete, not inchoate merely, and must have been assented to by both the contracting parties. Their assent must have been ad idem?^ A. says to B., "If you will give me an order for so nuicli iron or other merchandise, I will suj)ply it at a given jirice." "When the order is given there is a complete con- tract, which the seller is bound to peiibrm, the re- quest being implied in tlie words used, and there being an ample consideration for the promise.'* 61. On tbe facts just put, the existence of priv- ity (Art. 28) is quite apparent, and from the rule MERCANTILE CONTRACTS. 73 requiring it as essential to a valid contract, results important to the trading portion of tlie community may sometimes be deduced. Thus, if a factor or agent intrusted with goods for sale, sells them as his own, and the buyer knows nothing of any prin- cipal, the buyer may set off a demand he has on the factor against the demand for the price of the goods made by the principal. In such a state of things, the actual privity is between the buyer of the goods and the factor ; and although the real principal may step in and claim the price of the goods, it would be very hard should the buyer be debarred from asserting his cross-claim as against that party with whom he was in actual — ostensil)le — privity, viz., the factor. The rule stated is practically applied in accordance with principles of natural equity,'^^ and in connection with it may be mentioned another rule — that where an agent is the purchaser of goods, and the vendor has given credit to such agent, be- lieving him to be the principal, the vendor cannot recover against the undisclosed principal, if the principal has Jjond fide paid the agent at a time when the vendor still gave credit to the agent, and knew of no one else as principal.''^ Here the actual — ostensible — privity is between the vendor and the agent, and it would manifestly be inequitable to hold the unknown principal liable to pay a second 74 Till': I'lIII.OSOIMIY OF LAW. time over t'oi" tlie goods, credit li.'iviiiL;- ])een given l)y the vendor to the agent, witli uiiom alone he liad treated. ('»2. If a ilrm of merchants resident abroad in- structs a home iirm to purchase goods to l)e sent out on the joint account of the two firms, this will not iJer se empower the home firm to establish any privity between the vendor here and the house abroad, the presumption being that the foreign principal does not intend that the agent employed here should make him a i^arty to the contract of purchase. Therefore, on the ground of want of privity, no action would lie at suit of the vendor of the goods in this country against the foreign firm.'' This presumption, when it exists, is de- ducible from a well-understood course of dealing amongst merchants, which is founded on conven- ience and on something like necessity — for how can the foreign firm be sufiiciently informed as to the solvency, respectability, and trustworthiness of those who sell goods to their home age)its or cor- respondents? Consequently, the home agents have no implied authority to create privity as between their principal abroad and the vendors of goods here. 63. The doctrine of privity may thus properly be applied to test the completeness and efficiency MERCANTILE CONTRACTS. 75 of a contract made between traders, and having reference to a matter purely mercantile. The test of mutuality or reciprocity of obligation (Art. 92) cannot always be so applied. The contract of suretyship exemplifies this remark. A. guarantees the price of goods to be supplied by B. to C. on the contingency of C.'s default in paying for them. A. thus accepts a possible liability, but B. does not bind himself to supply the goods. This is a very common state of things in practice, though B.'s position would of course be different should there be evidence of an undertaking by him, express or implied, to forward goods to C. 64. The intention of parties to a mercantile con- tract, when clearly discoverable, may affect their primd facie contract, or may afford a clue for inter- preting it. In most cases the intention of parties is sufficiently expressed. If so, should their con- tract in no way contravene the law, effect must needs be given to it. In the articles which imme- diately follow, various instances are given of what is said. 65. A question such as just referred to may arise upon a charter-party — a charter-party being " a contract by which an entire ship, or some princi- pal part thereof, is let to a merchant for the convey- ance of goods on a determined voyage to one or 70 THE riiiLd^ornY of law. more places." ''^ Sucli an instrument, we \v\\\ sup- pose, contains an agreement tliat the ship shall take in a full cargo and proceed to some foreign j)ort, and there, or so near thereto as she may safely get, deliver the cargo in the usual and customary man- ner, restraints of princes and so forth excepted. From such words may be implied a contract of this kind : That the shipowner and charterer will each use reasonable diligence in performing that part of the delivery which by the custom of the port falls upon him. If the charterers are prevented by the authorities abroad from sending lighters to the ship, as they otherwise must have done, to land the cargo, the shipowner could not sue the charterers for the delay thereby caused, the whole process of landing having been thus rendered impracticable by a cause over which neither party had control." In such a case the object is to deduce from words used the intention of the parties how to act and conduct themselves under a state of facts which had not been contemplated by them when contracting. QiG. If there be an agreement to deliver goods to a purchaser on a certain condition which, without default on the part of the vendor, never comes to pass, the latter will not be liable for non-delivery of the goods. But where the agreement is absolute or conditioned on an event which happens, the vendor MERCANTILE CONTRACTS. 77 will be liable for a breach of the agreement to de- liver, although he could not help the non-perform- ance ; for he must blame his own heedlessness if he runs the risk of undertaking to perform an impossi- bility, when he might have provided against it by his contract.^*^ Should there be a contract by A. to sell to B. 200 tons of potatoes about to be sown on specific land of A., there is in such contract an implied un- derstanding or condition that when the time for delivery comes the article contracted for should be in existence — so that if the crop fail without default of the vendor, he may be excused from delivering the entire number of tons contracted for.^^ Here a state of things has occurred which neither of the contracting parties thought of or provided for, and the court is therefore called on to complete, as it were, their original agreement by adapting it spe- cifically to what has actually happened. The agreement thus completed is not, however, incon- sistent with that first framed and^:>r6> tanto acted on. It is quite likely that if the parties had possessed foresight they would have introduced into their con- tract a term such as was afterwards added to it. G7. If goods are sold to be delivered by install- ments and 2:)aid for accordingly, and the buyer makes default in paying for one installment, under 78 THE I'lIILOSOrilY OF LAW. circumstances sucli tliat the seller may reasonably believe tbat the buyer cannot pay for the goods tendered, and does not mean to go on with the con- ti'act, the seller is justified in repudiating it.^ Cases of this kind seem to be increasincr in number, and involve considerations of much practical importance. The policy of the law clearly is to keep parties to their contracts and engagements ; yet the hardship would be great in compelling a vendor to continue to supply goods which the purchaser has shown a disinclination to accept an an inability to pay for. Under such circumstances the intention of the par- ties will be taken to be that their contract is rescinded. G8. Where a bill of lading, or receipt by the master of a ship for goods sent on board for convey- ance, and a bill of exchange to cover the goods in- cluded in the bill of ladino; are sent in a letter to a vendee of the goods, it is well unxlerstood amongst merchants that the bill of exchange must be accepted, or the bill of lading cannot be retained ; and if the bill of exchange be not accepted, but the bill of ladino: is retained, the bill of ladino^ thus acquired gives no right of property to the person so acquiring it.^ The presumable intention of the party consigning to act in accordance with this MERCANTILE CONTRACTS. 79 usage may be modified, but the burden of proof will be on the consignee. 69. A presumption of law may b^ inoperative, in view of the avowed intention of parties whom it might have affected. Such a presumption is that where items in respect of various transactions ap- pear on the debit side of an account, the items on the credit side of the same account are to be appro- priated to the items of debit in order of date, in the absence of other appropriation ; but this presump- tion will be rebutted by evidence showing that such could not have been the intention of the parties.^* 70. Sometimes an implied term may need to be added to, grafted on, or imported into a contract, with a view to effectuating the intention of the par- ties to it. And on the solution of the question whether or not it be so may depend their respective rights and liabilities. Where, for instance, tenders are invited for the performance of work in accord- ance with certain plans and specifications, the ques- tion may arise — Is there any implied undertaking, warranty, or guaranty that the work can be done as described in the plans and specifications ? Or must the parties tendering satisfy themselves independ- ently in regard to this particular ? ^ 71. As a new term or condition may sometimes 80 'IIIK i'lIII.OSOI'lIV OF LAW. bo imported into a contract on considerations of convenience and necessity, so may authority to do tins or that thing occasionally l>e implied on the ground of necessity, where otherwise there would be no sufficient authority, and such power, when duly exercised, may impose liability on that person who is presumed in law to have conferred it. Thus, the captain of a ship under certain circumstances may pledge his owner s credit for goods supplied to the ship at the port where she may be lying. The captain, however, has authority to bind the owners to pay for supplies or to repay money advanced only where the necessity of the case gives him that authority. It must appear that the money borrowed was needed, or that the goods supplied were neces- sary for the use of the ship, and that it was reason- ably necessaiy that the captain should obtain or order them on the owner's credit. If the shipowner were himself at the port in question, or had there a)i agent authorized and ready to supply the ship's requirements, the captain would have no implied authority to pledge the owner's credit for a pur- pose such as supposed.^*^ The special power thus vested in the captain of a ship, and exercisable as aforesaid, is distinguishable from that general discretionary power with which an agent is often MERCANTILE CONTRACTS. 81 clotlied to act for tlie interests of his principal in emergencies as best lie may. 72. Great weight is allowed hy our law to mercantile usage, and such a usage when once established is afterwards taken notice of by the courts without formal proof of it.^''' What is a usage recognized among merchants — w^hat is its ex- tent — what does it mean — must be ascertained by evidence. But when once ascertained, the legal effect of the usage upon the contract is matter of law, as also is its reasonableness, certainty, or legality. "The universality of a usage voluntarily adopted between buyers and sellers is conclusive proof of its being in accordance with puV)lic con- venience." ^® 73. Mercantile usage may operate on a con- tract in various ways. 1st. By interpreting after a peculiar fashion some word or phrase occurring in it ; 2dly. By adding a term to the contract ; -Sdly. As possessing inherent authority to which the con- tracting parties may appeal, and by which they may expressly agree that their words shall, if found ambiguous, be exphiined or their intention be determined. 74. 1st. Mercantile usage may oj^erate on a con- tract by affixing a meaning to some phrase or word in it. Thus on a sale of goods the invoice expressed 82 THE rim.osoi'iiY of law. that they should })L' ])ai(l lur in '' tV(jni six to eight weeks." The sale having taken place on the 1st of May, the action was commenced June 18th follow- ing, barely seven Aveeks after the date of sale. Had the action ])een prematurely brought ? that is to say, brought before a complete cause of action had arisen ? The jury being called on at Nisi Prius to determine the mercantile meaning of the phrase, " from six to eight weeks," found that the action had not been broug-ht too soon. Such a case — not altogether free from difficulty — may be thus ex- plained. The words used are grammatically mean- ingless, therefore the jury, as men familiar with trading transactions, were to say whether the time of payment for the goods was to be fairly between the two extremes specified, viz., between six and eight weeks from May 1st; if so, was the 18th of June the fair mean ?*^ It was not the province of the judge at Nisi Piius to interpret the phrase here in question, for how could he do so unaided by the testimony of witnesses conversant with the usages of merchants ? Such proofs being adduced, it was for the jury, looking at the expression used, to decide the question whether the action had been prematurely brought. Where goods are consigned in a general ship by a bill of lading to a particular port, ''the ship- MERCANTILE CONTRACTS. 83 owner's liability for the goods to cease on delivery," such delivery is to be made according to the usage which prevails at the said port. ' Thus, W'here goods are to be delivered " at the j^ort of Cardiff," the shipowner's contract is fulfilled if he delivers them at the part of the port where goods of that class are required to be delivered. So, if delivery is by the usage of the port to be made in a certain manner, a delivery in that manner satisfies the ship- owner's undertaking to deliver at the port, unless there be somethino; in the terms of the contract in- consistent with, the usage.^'' In any such case the true meaning of the contract to carry is ultimately arrived at by evidence of local usage. 75. 2dly. By mercantile usage a term may be added to a contract. The relation of master and servant, existing amongst non-traders as well as traders, will aid in exemplifying w4iat is said. The ordinary rule being that a master is responsible for the act of his servant done within the ordinary scope of his duty, a restriction has been put upon it of this kind — the rule does not apply to sustain a demand made by a servant upon his master, by a workman upon his employer, in respect of damage resultino; from the carelessness of a fellow-servant or fellow-workman, where the servants respectively causing and suftering the hurt are engaged in a com- 84 THE PiiiLOSOPny of law. raon work or ernployment, in the discharge of a common duty, and nnder one common control or supervision.^' The reason of this restriction of the general rule is that the contract creating the relation of master and servant tacitly includes an undertak- ing by the servant that he "will, in consideration of the wages specified, incur and submit himself to the risks ordinarily incident to the course of employ- ment upon whicli he is about to enter. The liability of the master is thus limited by the terms and nature of the contract between himself and the injured person. The principle on which this rule rests as to the non-liability of the master for a personal hurt done to his servant by a fellow-servant engaged in one common employment, has been applied to many cases where the immediate object on which the one servant is employed is dissimilar from that on which the other is employed, and yet where the risk of injuiy from the negligence of the one is so much a natural and necessary consequence of the employment which the other accepts, that it must be included in the risks which are to be considered in his wages. Thus, whenever the employment is such as necessarily to bring the person accepting it into contact witli the traffic of a line of railway, risk of injury from the carelessness of those managing MERCANTILE CONTRACTS. 85 that traffic is one of the risks necessarily and natu- rally incident to sucli an employment, and is there- fore within the operation of the rule, ^l Before perplexing ourselves with the distinctions just noticed — which are sometimes rather fine — we should make sure that the party sought to be charged really stood in the relation of master to- wards comj^lainant and him who did the injury. Perhaps* some other person was master at tlie time.''^ Cases such as cited in this article serve to show that usage may import into a contract some specific term to which nothing at all similar or akin is there found. Nor does it signify whether tke term be thus imported directly by the usage, or whether it be imported on analyzing the relation subsisting between parties as explained and elucidated by Ions: continued custom. Looked at in either lio-ht, we have before us a contract materially added to by usage, and such a contract as spoken of far more frequently than not falls within the list or catalogue of mercantile contracts. 76. 3dly. A mercantile usage may liave inher- ent authority to which the contracting parties may appeal, and by which they may agree that their words shall, if found ambiguous, be explained, or their intention be ascertained. Mercantile usage may essentially differ from the customary law of 86 THE r'Hri,osf)iM(Y ov law. England, ;iii(l it is comix'tent to persons to exclude llie operation of tlie Litter by tlie express wording of their contract, and to agree to Le bound by the former. Tn any sucli case tlie usage appealed to, if existent and valid, will regulate the contract/''^ AVhere goods are Ijought and at once paid for l)y check, such payment is prima facie conditional only, becoming absolute when the check is honored, or "wlien the holder by his negligent conduct or laches makes the check his own. Hence the ques- tion — Does a check operate as payment ? may de- pend on this further question — Was it duly pre- sented ? and this question may have to be answered by reference to mercantile usage. A check drawn in London on a Jersey banker is accounted a for- eign check, and by the custom of London 1 tankers any such banker, when a foreign check is j^aid to him by a customer, if he has an agent at the place where the check is payable, sends the check to his agent there to be presented for payment. If the London banker has no agent at such place, lie sends the check direct by post to the bank whereon it is drawn, and that bank immediately remits the money or retuins the check. Should this usage be conformed to on behalf of the recipient of the check, he will not be deemed to have made it his own by laches, and, in the event of failure of the foreign MERCANTILE CONTRACTS. 8T bank, will be entitled to recover the price of the goods as against the purchaser. ^^ 77. It has been thought well in ^his chaj^ter to enter at some leno^th into the nature and effects of O mercantile usages, as giving a peculiar complexion to that branch of law here treated of, viz., the Law Merchant. In reference to these usages recently reported cases have been cited, a mere glance at some of which will show how great the difficulty may be in interpreting and giving its proper effect to a usao-e oi' custom recoo-nized amono;st traders, to a word or phrase familiar to th^m, or in reconciling a usage proved to exist, with the express wording of a contract. Whilst trying to give effect to the intention of parties by incorporating a usage with their contract, the words which they have adopted must first be looked at, and the intention, if thereby clearly expressed, will guide the court. 78. A contract, being grounded on consent, will be vitiated by fraud practiced on the contractor (Art. 48), and the word "fraud" has in mercantile law a very wide significance. Our law merchant regards with jealousy anything at all savoring of bad faith, and where a contract has been made will sometimes absolve from his engagement that party to it whose position has been prejudiced by an act 'SS Tin: I'liiLosoi'iiv or j.aw. of the other contracting party, done without liis consent or knowledge. For instance, in an action substantially founded upon or arising out of an alleged sale of goods, such a question as this may ai'ise : Had the purchaser a right to treat the supposed contract of sale as null, or to rescind it? To such a question the answer will he : Where the contract has been induced by misrepresentation, the thing sold under it and de- livered may, whilst it retains unaltered its original form and condition, be returned, and the price paid for it may l)e reclaimed l)y the vendee; and even Avhere the condition of the chattel has become changed, perhaps even deteriorated — whilst in the vendee's possession, but without his default, as by the act of God or by unavoidable accident — a right to rescind the contract of sale may be insisted on. ^ The phrase " act of God" just used is applicable where the damage or loss in question has been caused exclusively by such a direct, violent, sudden, and irresistible act of nature as could not by any amount of ability have been foreseen, or, if foreseen, by any amount of care and skill been prevented or resisted. ^' 79. From what has been said in the preceding article, it must not be inferred that a contract of sale can be avoided and treated as null merely be- MERCANTILE CONTRACTS. 89 cause the vendor has tacitly suffered and acquiesced in the self-deception of the buyer; such conduct, albeit reprehensible, would not be tantamount to active and express fraud /-"^ 80. Our law, however, tries to enforce good faith — not merely to repress gross fraud — in deal- ings between traders, ex. gr., in the case of a marine policy of insurance as between the assured and the underwriters the utmost good faith is required, so that a concealment or withholding by the assured of material facts which ought to be known by and therefore disclosed ta the underwriter, will vitiate the policy.®^ From the sensitiveness of our law in regard to the observance of good faith by contracting parties, difficulty has sometimes arisen. Thus, it is well established that a p^^-incipal — although civilly liable for the misfeasance of his agent in the course of his employment as such — is not liable for the wrongful act of his agent in any matter beyond the scope of the agency, unless he (the principal) has expressly authorized it to be done, or has subsequently adopted it for his own use and benefit. ^'^° Is, then, a principal who has had the benefit of a contract made by his agent responsible for a deliberate fraud committed by such agent in the making of the con- conti'act — by which fraud alone the contract was 90 Tirr: rinLOsriniv of law. effected? Is ;i jji-iiicipal liuMe for a frau<] com- initted hy an agent em])loye(l in the (»r<]iiiary course of Lis business? Can tlie consequences of fraud in an agent he fixed u])on a man morally innocent as resrards it? On the other hand, is a customer of ^ . . . . . the principal, dealing and negotiating with his accredited agent, necessitated to look to the agent personally and exclusively for damages caused hy his fraud in the regular course of business, and so, l)erhaps, to be practically without redress ? The distinction between what is called moral and what is called legal frajid lias caused much perplexity. Can there be in contemplation of law conduct which will entail the consequences of fraud, ^vithout any ingredient of moral turpitude ? In the language of pleading, a master is said to do an act by his servant — a principal is said to do an act by his agent. Can the master or the principal properly be said to commit a fraud — ex. g?:, to make a false representation by his servant or agent, who has no express authority to do what is wrongful — so as to be made civilly responsible for its consequences ? ^^^ Can a case such as put be likened to, or is it to be distinguished from, that ordinarily occurring, in which a principal is held to be affected l)y the state- ment or admission of his ao-eut made in the reirular course of his employment? Could the fraudulent MERCANTILE CONTRACTS. 01 misstatement of tlie agent be considered as made at all within the scope of Lis duty, and in the character of agent? Again, can the liability of the master or prin- cipal, in any case such as above put, be regarded as analogous to that of a member of a partnership, who may, under certain circumstances, be answer- able for the delinquency of his copartner, causing loss of money to a third person. For instance, the plaintiffs, who were executors and trustees under a will, employed A. and B., a firm of solicitors, to procure investments for the assets of their testator. Plaintiffs' dealings were with A., who, having re- ceived money from them to be advanced on mort- gage, paid it nevertheless into a bank to the part- nership account, representing to plaintiffs that it had been applied as they directed. A. having for many years paid interest regularly in respect of the pretended mortgage, dissolved partnership with B., and afterwards became bankrupt. Then plaintiffs first became aware of A.'s default, and were held entitled to full relief as ao;ainst B. — B., thougli morally innocent, being civilly liable for the fraud of his copartner. Although, in the case presented, the relief was sought in equity, the ground of the decision, and the reasoning on whick it was based, would be recognized in a court of law — viz., that ^2 'iiiK riiiLc^soriiv (.)i" law. tlie act of one partner, done in regard to tlie reg- iil.ii- l)U>;iness of (lie fii-iii, is binding on liis co- ])artncr, even if sucli act consist in a fraudulent mis- representation made by the partner wlien transact- ing the partnership business.^'^- The answer to any question put in the three preceding paragraphs could only be given after careful consideration of the facts submitted. It may well be that a principal would be liable in respect of the misrepresentation of an agent con- tractino; or assuming- to contract on his behalf, vet not liable for fraud of the agent, entirely isolated from contract, causing damage. To this aspect of the iucj^uiry I shall ad-^^ert in the ensuing chapter. 81. Illegality may afford ground of defense to an action on a mercantile as on a non-mercantile contract. For instance, it is generally true that a plaintiff suing for work and labor done in contra- vention of the common or statute law cannot re- cover for it, nor can a plaintiff' successfully rely upon defendant's promise to reimburse him for money paid or damage incurred under a corrupt aoTeement — our law declinino; to lend aid to one who has thus aimed at violating its provisions.^*^ So an aorreement executed with a view to the doiuo^ of an illeo^al act — and so executed under a sort of compulsion, and not l\v one who can be MERCANTILE CONTRACTS. ^^ regarded as a free agent— will not be enforced in equity, and the principle involved in this decision is just as applicable at law."* So where a chattel has been pledged — the absolute property therein remaining in the j^ledgor or person pledging it, the special property being in the pledgee — and the original deposit was made in respect of an illegal transaction, to which both pledgor and pledgee were privy — if the pledgor suing for the chattel cannot make out his rio-ht to it without showing the true character of the deposit, he will be precluded from obtaining the assistance of the law for getting back the chattel,"^ because the law will not at all lend its aid to enforce com2:)ensation for breach of an illegal compact. 82. Clearly, then, where a contract is to do a thing which cannot be cjone ^vithout violation of the law, such contract may be avoided. But in order to avoid a contract which can be legally performed, on the ground that there was an intention to perform it in an illegal manner, it is necessary to show that there was a wicked inten- tion to break the law."^ In connection however with this part of our subject the question sometimes arises : Where is the line to be drawn between an act done in violation and an act done in evasion of a statute? 94 THE PHILOSOPHY of law. An ajireement to contravene an act of J^ulianicnt, i. e., pointing and l(!a«lini:^ to a contravention of it, would be illegal, and yet an arrangement meant to evade an act, perhaps to escape from revenue bur- dens, might not necessarily be so. The expression that something done was " a fraud upon a statute " is familiar ; it applies, for instance, to an attempt made to deceive and defraud creditors in breach, not of the words, may be, but of the spirit and policy of the bankruj^t law. The expression cited should, however, be used with due discrimination. The Legislature may designedly or ^;^;' incuriam omit to provide against every imaginable state of things, and under special circumstances it may be found that the mischief intended to be prevented by its enactment has not been prevented. There- fore, assuming that the terms of the particular act have been complied with, a lawyer may well hesi- tate to characterize as illegal what has been done, or to say that the agreement out of which it orig- inated was either voidable or void.^"' It may also be very necessary to restrict within reasonable limits the operation of a statute affixing the charac- ter of illegality to an act or omission, ex. gr.^ Avhere the object of an act of Parliament is to prohibit a voyage. The illegality attaching to the voyage attaches also to the policy of insurance covering the MERCAISTILE CONTRACTS. 95 voyage, but where passengers are taken by the master of a vessel without her owner's knowledge, no certificate having been obtained ^enabling the vessel to carry passengers, this illegal conduct of the master will not, it seems, vitiate a policy on the ship effected by her innocent owner."^ 83. From what has been set forth in this chap- ter, we infer that a mercantile contract — though governed generally by rules applicable to contracts between non-traders — is more liable than they are to be affected by usage, and that in regard to a mer- cantile contract the nicest good faith must be observed. The language of traders, moreover, is peculiar, and likely to cause embarrassment to per- sons not conversant with it ; what traders have said and written, accordingly, may need to be explained by experts, or ■ at all events by those familiar with their dealino;s. Our courts, without undue indul- gence, will decline to fetter merchants in their transactions with each other, and will abstain from so interpreting an act of Parliament, if this be pos- sible consistently with its meaning, as to nullify or render illeo-al their arrangements. CHAPTER IV. WRITTEN INSTRUMENTS. " Delere licebit Quod non edideris ; nescit vox missa reverti." — Hor. " Vo? audita perit, litera scripta manet." — Anon. " Scripta ferunt annos." — Ovid. 84. The object of this chapter is to put before the reader some practical remarks as to contracts or agreements evidenced hy writing, which are divisi- ble into three classes, viz. : simple contracts which are in writing, though not required to be so ; simple contracts which must be in writing, whether by virtue of the statute or by force of the customaiy law ; and deeds. 85. As regards the class of contracts first men- tioned, something has been from time to time inci- dentally said. The fact that an agreement between parties has been committed to writing affects the mode of proving it rather than its significance or eflScacy. Our law indeed requires that a fact be proved at the trial of a cause by the best or highest kind of evidence which the nature of the case admits of, and evidence such as implies that WRITTEN INSTRUxMEXTS. 97 better proof is attainable, being secondary only, cannot be received. This rule is necessarily subject to exceptions — as where the best evidence has been destroyed or lost, or is in the possession of the adverse party, who, after due notice, refuses to pro- duce it. Let us suppose an action to be brought u^^on a contract, and that it appears at the trial from parol evidence that the contract declared on has been put into writing by the parties to it, that writing being the best evidence of the contract must, if possible, be produced; audit will be for the judge to say whether the existence of a written contract between the litigating parties embodying the verbal contract sued upon be sufficiently proved to entitle the defendant's counsel to call for its production, or whether sufficient proof has been adduced by the plaintiff that the writing is not in his possession or within his control to let in secondary evidence of its contents. The rule adverted to is founded on a sort of presumption that there is something in the evidence withheld which makes against the party who ought or might be expected to produce it. Should such evidence, however, be shown to be unattainable, this presumption ceases, and the infe- rior kind of proof is admissible. If, therefore, the original of a writing needed as proof in a cause 7 98 THE PHILOSOPHY OF LAW. be shown to be in the possession of tlie adverse party, and be not after notice produced by him, or be shown to liave been lost or destroyed, secondary evidence of its contents may be given ; and if tlie w^riting be in the possession of a third person who is not by law compellable to produce it, and he refuses to do so, the result is tlie same, for the original is then unattainable by the party offering the secondary evidence. 8G. From what precedes, it logically follows that verbal statements made contemporaneously with the signing of a written agreement by either party to it cannot be received in evidence to vary the terms of the agreement, though parol evidence to show that there had in fact been no agreement at all would be admissible. In an action brought for breach of a written contract, the defense may be that it was never meant to have any effect, or that it was to take effect not absolutely and immedi- ately, as contended for, but conditionally on the happening of an event which has not happened, and either of such matters of defense mig-ht be proved by extrinsic parol evidence. Proofs would not, how^ever, be admissible to show that the alleged contract was to have a partial effect. In the former case the agreement would really be WRITTEN INSTRUMENTS. 99 denied altogether; in the latter case the evidence proffered would go to vary the written contract.^**^ 87. It is for the judge to construe a written contract, and there may be great difficulty in doing so ; it is sometimes hard to ascertain and unravel the meaning of words, and parties who use language involved or doubtful have themselves to blame should their real intention be misconstrued. " If," for example, " a j)rincipal gives an order to an agent in such uncertain terms as to be susceptible of two different meanings, and the agent honk jide adopts one of them and acts upon it, it is not com- petent to the principal to repudiate the act as unauthorized because he meant the order to be read in the other sense of which it is equally capable ; " the principal ought to have given his order in clear and unambiguous terms,^^^ and language, if ambig- uous, is to be construed in the sense least favorable to the person using it. 88. Contracts required to be in writing, but not under seal, are constituted by force either of the law merchant or of statutory law. We should look in vain for contracts, unauthenticated by sealing and delivery, which were yet required to be in writing in virtue of our common law non-mercantile. The customary law of England in remote ages recognized the efficacy of a charter or a deed, but 100 THE riiii.os<.riiv of law. r('ij;.'n('(l tlic request, consideration, and promise, constituting a complete simjde contract (Ai't. '22 ). A loan raiinot Ix* unless at the request 'of its recipient; tlie consideration is the sum ad- vanced ; and tlie promise implied hy law is to repay it on demand. Should A. make default in doing so, an action for the debt miiilit ])e Lroui^ht ai'ainst him at suit of B. The liability of A. to B. under tlie above circumstances is direct. 92. Towards B., C. the guarantor, stands in a position different from that occupied by A., upon whose default in repayment of the loan, C. becomes liable to B. in an action upon the guaranty. To support such action, in the absence of any admission, the guaranty must be produced at the trial, and if signed by C, his handwriting must be proved, the consideration for his promise must be shown, and a material question may arise upon the guaranty it- self. Is it continuing, or so worded as to l)e in force for a limited time only, and then to become null ? The consideration for the undertaking to guar- antee may be, as above supposed, an immediate ad- vance of monev, or the irivinG: of credit i» fnturo, or' the forbearing to sue in respect of an accrued debt, or the employment of A. by B. in his service, and so forth. The consideration must not, however, be wholly past and executed when tlie promise is WRITTEN INSTRUMENTS 103 made, though it may be in part executed aud in part executory. The consideration need not now, in virtue of a modern statute,^^^ be s^t forth in or appear by necessary implication from the guaranty. . The position of C. in reference to B. is thus peculiar: there is an absence of mutuality in tlie contract (Art. 63). B. says to C. : I may possibly supply goods to A., but shall not do so unless you will guarantee payment for them. This arrange- ment, when sufficiently evidenced by writing, is at once binding upon C, yet B. may decline to supply the goods, and no action would lie against him for sucli refusal. The contract does not impose obliga- tions which are reciprocally enforceable. This feat- ure in the instrument known as a guaranty is worthy of special notice. Negotiations may be car- ried on with a view to the employment of A. by B. as his cashier, and at length result in or be appar- ently terminated by the giving of a guaranty by C. that A. shall, if so employed, faitlifully make out his accounts and pay over balances to B. ; nevertheless, B. may, without incurring liability, capriciously ab- stain from completing this arrangement.^'* 93. As between A. and C, the parties respect- ively in favor of whom and by whom the guaranty is given, the state of things is this : C, if compelled to pay on A.'s default, has a remedy against A. by 104 TiiK riiii,os()i'iiv oi' I. AW. action i'nv tlic iiioiicy s<» ])aini'Hv of law. '.m;. In llio contract now sj)ok('ii of, tli(3 nicest good t'aitli is to bo looked for, so tliat not merely fraud but non-disclosure of a material fact may avoid it.""* If the creditor, without the consent of the surety, l)y his own act destroy the debt or dero- gate from the power which the law confers upon the surety to recover it, as against the principal debtor, in case he should have ])aid it to the cred- itoi', the surety is discharged. Where a surety has agreed to become bound to a master on certain terms for the due performance of duty ])y his serv- ant, and those terms are afterwards so altered as be- tween the master and servant as to increase the risk of the surety, he Avould be discharged. Though if the change be in some purely collateral and im- material point, that would afford no defense to the surety if sued for breach of his contract and under- takinoj.-'^® Should a continuino- ijuarantv however be given for the honesty of a servant, and should the master detect him in dishonesty, if instead of dismissing he choose to retain in his employ a dis- honest servant, the surety kept in ignorance of this Avill cease to be liable on his guaranty.^-'' To an action on a guaranty the defense set up Avas tliat after it had been made and delivered to the plaintiff, and whilst in his hands, the instru- ment had l)y some person unknown l)eeu altered by WRITTEN INSTRUMENTS. 107 such person affixing a seal to it, so as to make it purport to Lave heen sealed by the defendant. The alteration here alles^ed to have baen effected in the instrument was obviously material, inasmuch as the properties of a deed are widely different from those of a simple contract, and the court held that the alteration made avoided the guaranty.^^^ 97. It might perhaps have been supposed that the state of facts rendering necessary the instrument treated of had l^een sufficiently defined by the Legislature and ])y legal tribunals, and that it had been in all respects well cared for by our written and customary law; we have, however, already seen that it is sometimes possible to evade the pro- visions of a statute (Art. 82, adfin.^, and so a prac- tice was initiated and gradually prevailed of shap- ing the cause of action upon a guaranty, when merely verbal and therefore insufficient to support the action, as upon a fraudulent misrepresentation concerning the solvency and trustworthiness of another, the gist and substance of complaint being thus presented as a wrongful act, rather than as a breach of contract or undertaking. This being so, the Legislature deemed it advisable to interpose and provide specially for the state of facts so im- agined and exhibited by the pleader. The 6th sec- tion of Lord Tenterden's act (9 Geo. IV, c. 14), re- 108 Tin; i'iiiL<)>(»i'iiv of law. quiring a "representation or assurance," sucli as supposed, to "1)0 made in wi'iting, signed l>y tlie ])arty to l)e cliurged therewith." Under tliis latter statute, points not free from difficulty may arise. A letter is written and signed by J., the manager of a banking company, in answer to an inquiry concerning the credit and solvency of K., put to him by a third party, S. The letter con- tains misstatements and misrepresentations know- ingly made in reference to such matter, and after- wards causing pecuniary loss to S. Upon these facts, apparently so simple, important legal ques- tions may arise. Can the bank manager be re- garded in any sense as the bank, so that his false statement is that of the bank ? This can hardly be, though the bank might, by adopting his false state- ment as that of their ascent, for their own advan- tage, estop themselves from afterwards repudiating the agency. If the manager cannot be looked on as identical with the bank, can he be regarded as their agent, in the case put, so as in any way to make them liable for his false representation ? The an- swer is that the manager cannot — even if regarded as agent for the bank in answering the question as to R.'s trustworthiness — thus cast on them responsi- bility. By Lord Tenterden's act, sec. 6 the signat-ure of the agent will not charge the principal. The WRITTEN INSTRUMENTS. 109 personal liability of the manager, in the case put, looking at the finding of the jury, could not be doubted. He had made a false representation as to the solvency and trustworthiness of another person, with intent that such person should obtain credit by it, and had made it in wa^iting, and signed the document.^-^ Damage had thus been sustained by the plaintiff, S., and the cause of action was com- plete (Chap. VII). 98. The 4th section of the statute of frauds ap- plies to some other contracts besides guaranties, and inter alia to contracts for the sale of land or any interest therein ; and sec. 1 7 applies to such con- tracts as concern the sale of goods where the price agreed upon for them is j£10 or upwards. To the former class of contracts no further reference can here be made, a contract falling within it usually necessitating, by reason of its importance, fore- thought and professional advice. 99. The contract for a sale of goods, already more than once adverted to (Arts. 39, 49, 58), has been regulated as well by our unwritten as by our written law, for in very early times this proposition in regard to it was established, that a sale or barter of goods was complete when the price had been agreed upon, provided there had been a delivery of the subject-matter of the sale, or the price had been 110 TIIK I'llILUSUrilV OF LAW. l);ii(l ill part, or earnest liad been given and re- ceived. In general, moreover, by our cuwtoniary law, where specific goods are the suV>ject of a con- tract of immediate sale, the property in tbem passes to the i)urcliaser upon completion of the bargain, so that the vendor has then a right to recover the price, though this will not be so should there be circum- stances whence an intention may be inferred that the property should not at once vest in the pur- chaser.^'^'^ Here the intention when ascertained is a key for interpreting the contract. The question whether the property in a chattel has or has not passed under a contract of sale may be important ; it may need solution for ascertaining on which of the two parties, buyer or seller, the loss should fall, if by fire or other accident the subject-matter con- tracted about perishes before it has been dealt with — before dominion has been exercised over it Ijy the buyer. The property in the goods or chattel per- ishes to the domiims — but who is he ? In whom is the property vested ?— for the risk is his.^"^^ 100. The ITth section of the statute of frauds applies to contracts for the sale of goods wheie the piice agreed upon is £10 or upwards, and, harag regard to the requirements of the common law, enacts that if there be no acceptance and actual re- ceipt of the goods sold, or part thereof, nothing WRITTEN INSTRUMENTS. Ill given in earnest to bind tlie bargain, or in part of payment, tiiere must be some note or memorandum in writing of such bargain made and signed by the party to be charged thereby or his agent. As to the true significance of the words set forth, very many questions have arisen, of which however, regard being had to the aim of this volume, two only will be entertained. AVhat are we to under- stand by " acceptance and actual receipt " of goods ? The answer to this question may, under ordinary circumstances, be given on reference to the facts in evidence, as shown by the following cases. The de- fendant, who was a butcher, verbally agreed with the plaintiff to purchase of him some cattle then being in his (the plaintiff's) field. After the bar- gain was concluded, the defendant, finding that he had not got his check-book with him, told the plaintiff to call at his house in the evening and he should be paid. It was then arranged that the cat- tle should remain in thq plaintift^'s field for a few days, and should be fed with the plaintift^'s hay by the defendant. This having been done, the defend- ant afterwards repudiated the bargain, and the ques- tion arose — whether there was evidence of an ac- ceptance and a receipt of the cattle within the stat- ute. It was held that no sufficient evidence to this effect appeared ; there had been no actual receipt of 112 TIIK IMIILOSOPIIY OF LAW. the cattle by the defendant, and tlie a^t of feeding the cattle with tin; ])laintifrs assent could not Ije deemed an exercise of such an act of ownership as to amount to an acceptance hy, and constructiv^e de- livery to, the defendant.^"^^ On the other hand, a re- ceipt and an acceptance were held to have been properly inferred from the following facts : A. (the defendant) agreed to purchase of B. (the plaintiff) a carriage, then standing in B.'s shop ; and after some alterations had been made in the carriage by the defendant's order, he requested that it migbt remain, as in fact it did, on the plaintiff's premises, but the defendant himself made use of it on one occasion. It was argued, in this case, that there had been no delivery to the defendant, nor any acceptance and actual receipt by him of the carriage ; the court nevertheless held, that there had been both a suffi- cient delivery and acceptance of the carriage ; that tlie defendant had dealt with it as his own ; and that the plaintiff, in retaining the actual ostensible possession of the carriage, was, under the circum- stances, to be regarded as filling the character of a mere agent or warehouseman for the defendant.^-^ Cases akin to the above are often suh jiidice, Init where the facts established are not precisely tlie same, an inference from one such case to an- other must cautiously be drawn. WRITTEN INSTRUMENTS. 113 101. A sale of goods, then, of the value of .£10 or upwards, regard being had to the requirements of the statute of frauds, if contested, is usually proved by writing or by acceptance and actual receipt of the goods, or by part payment for them ; and the difficulty in establishing any one of these heads of proof will be in regard to its sufficiency in contemplation of the jury, or will be such as may arise upon the statute. As matter of law, it has been adjudged that the written contract or memorandum relied on as satisfying the statute, will not suffice, if signed by one of the ]3rincipal parties as agent for the other — that the signature as agent must be by some third person. ^^^ Very often it is by a broker or an auctioneer. An auctioneer, for example, acting under due authority, may sign in compliance with the statute of frauds as agent for purchaser of the goods sold. At a public sale of goods, it is usual for him to write down in his sale book, containing a copy of the conditions of sale, the name of the highest bidder as purchaser of any particular lot, and also the amount of the purchase money, op- posite to the lot sold. When the auctioneer thus signs for the purchaser, the statute of frauds is satis- fied, because there has thus been made a " note or memorandum in writing " of the " bargain," signed 8 114- TIIK IMIir.OSOPIlY OF LAW. I)V tlic .Mi!;cnt of tlic vcikIcc. I'lit -wlK-n tlic ])ul;lic sale is over, the Implied agency of the auctioneer ai'lsinLC fnmi h\H character and function ceases. "^^ III sucli a case extrinsic evidence will Le admitted as to facts necessary for deciding whether the statute has been complied with, and so deciding wdiether the contract sued upon is, using the statutory word, " good." 102. It may, perhaps, have occurred to the reader that transactions daDy take place, involving the sale and purchase of goods above £10 in price, with reference to which the statutory requirements above noticed are disregarded — either party to any such transaction preferring to incur the risk, in event of defiiult on the other side, of being wholly without remedy, rather than the trouble of con- forming to the statute. K a person goes into a shop and orders goods without either receiving them at the time or paying for them — the price of such goods exceeding £10 — no action could be brought against him for subsequently refusing to accept the goods so ordered and hond fide deemed to have been sold. And yet such a transaction as this is constantly taking place without apprehen- sion by either party to it, of unpleasant conse- quences, and even amongst persons engaged in trade, a like disregard of the statutory provisions WRITTEN INSTRUMENTS. 115 is even habitually sliown, no memorandum being made on the sale of goods which could successfully be relied on as sufficient. 103. Sometimes, however, as our law reports testify, an objection is taken to the enforcement of an alleged contract, or rather to the demand of damages for its infraction, upon the ground that uo sufficient proof of such contract is forthcoming — ex. gr.^ where a variance occurs between the bought and sold notes issued to his client by a broker — and much apparent hardship may result.^'^^ Hence we infer how inexpedient it must be in operations of magnitude either to waive a strict and literal compliance with the statute law which re- quires certain contracts to be evidenced by writing, or to be anywise remiss in conforming to it. True it is, that doubts respecting the policy which dic- tated the 17th section of the statute of frauds have sometimes been expressed, but so long as this sec- tion remains in force, its j)rovisions must be com- plied with, or the risk indicated in them must be incurred — the lisk, viz., of being defeated in an action brought to recover a just claim arising out of a sale of goods. Nor may such a contract falling within the scope of the said section and committed to writing be varied by verbal proofs on any pre- text that its terms may seem to be susceptible of lin TIIH PHILOSOPHY OF LAW. much latitiulo of constniction and interpretation. In general it will be ioniid that the language used amongst mercantile men indicates their meaning sufficiently well if, for its explanation, we avail our- selves of mercantile usage and custom, and the evi- dence of those conversant with commercial language ; and where a purely mercantile word or phrase occurs in a written contract, and its meaning is fixed and ascertained by apt proofs, the contracting parties will not he permitted to vary, whether to enlarge or restrict, that meaning by subsequent verbal stipulations. Connected with this part of my subject a some- w^hat curious point was recently decided, viz., that the signature of the promisor or party to be charged under sec. 17 of the statute of frauds may suffice to satisfy its requirements, although the memoran- dum of agreement to which it was affixed then con- tained interlineations afterwards struck out, and al- though the contract itself was not in other respects such as it afterwards became, the purchaser of goods and party to be charged having verbally as- sented to the terms of the contract as finally ar- ranged. The parol evidence of assent was here ad- mitted, not to vary the written contract, but to show what was the condition of the document when it became a contract between the parties.^^^ WRITTEN INSTRUMENTS. 117 104. The 7th section of Lord Tenterden's act (9 Geo. ly, c. 14) extends the provisions of the l7th section of the statute of frauds,, which apply specifically to " contracts for the sale of goods, wares, and merchandises for the price of £10 ster- ling or upwards " to contracts for the sale of goods of that value intended for delivery at some future time, aud which may not at the date of the contract be made or be ready for delivery. The effect of this clause of Lord Tenterden's act, taken in con- junction with the 17th section of the statute of frauds, is that contracts for the sale of goods, as well executory as executed, must, save in certain ex- cepted cases — as when earnest is given or part of the purchase money is paid down — be in writing. Where the contract is for the purchase of goods to be made according to specification, there being no contract in writing — as in such a case there ought to be — between the parties, a remedy by ac- tion afterwards contemplated for breach of such contract may perhaps be found unavailable by force of a provision contained in sec. 4 of the statute of frauds, thus far unnoticed, which renders some written memorandum necessary in authentication of a contract " not to be j)erformed within the space of one year from the making thereof." The meaning of these statutory words however is confined to 118 Tin: Piiii.osoi'iiv of law. contracts Avliidi me not to be carried into execution Avithin the year, and does not extend to such as may by force of circumstances be postponed beyond that period ; otherwise it has been said/'' " there is no contract which miii-ht not fall within the statute." Nor is an agreement within the scope of the statu- tory words "wliich niiglit have been performed within the year, although both parties expected that its performance would last longer than the year.'^"^ 105. In preceding articles I have shown that a plaintiff may fail at Nisi Prius because he has not come thither provided with the requisite statutory proof of his contract ; he may also fail by reason of not having obtained from the defendant some statu- tory acknowledgment of liability. Let us suppose an action to be brought for the price of goods, and that the defense meant to be put for\vard is that the period of six years pre- scribed by the statute 21 Jac. I, c. 16, as a bar, if aptly insisted on, to such an action, has run since the accrual of the debt ; let us further suppose that in answer to this ground of defense is to be set up an acknowledgment of the debt. Such an answer to the defense might by our customary law have been substantiated by proof of a verbal admission or recognition of liability, but by the statute 9 Geo. IV, c. 14, already several times referred to, such an WRITTEN INSTRUMENTS. 119 acknowledgment was required to be in writing signed by the debtor, though the operation of this particuLar provision was extended by section 13 of tbe mercantile law amendment act (19 and 20 Vict. c. 97) to the case of such an acknowledgment signed by an agent duly authorized to make it. An important qualification, however, of the rule giving efficacy to a promise to pay a debt barred by tbe statute of James I must be kept in view ; if the promise be to j^ay conditionally, proof must be given of the performance or fulfillment of tbe condi- tion in order that tbe promise may suffice to bar tbe statute. Upon a general acfknowdedgment a general promise to pay may proj)erly be implied, but w^here tbe party guards his acknowledgment, and accompa- nies it with an express declaration to prevent any such implication, why should not the promisor be understood to mean that be will only pay condition- ally? If B. i3romises to pay his debt to A. when able to do so, some proof of B.'s ability to pay must, in order to fix him with liability, be laid before the jury. In such a case the construction of tbe docu- ment relied upon by plain tifl^ may be doubtful. ^'^^ IOC). The class of written instruments thirdly mentioned in Art. 84, comprises deeds. A defini- tion accordingly may here be j^roper. " A deed is a writing containing a contract, and signed, sealed, 120 TiiK riiiLosoriiv of law. and delivered l>y the jjarty." ^■■'* "Know that tliere are three things necessarily a})pertaining to a deed, viz., writinL'", sealing, and delivery." ^^ And, strange as it may seem, "To constitute a sealing, neither wax nor wafer nor even an impression is necessary." Neither is any particular form of words or act needed to constitute delivery. The mere affixing the seal does not, indeed, render the instrument a deed, l)ut as soon as there are acts or words suffi- cient to show that it is intended by the party to be executed as his deed, presently binding on him, that is sufficient. A deed, being char£fcterized by the solemnities attending its completion, has peculiar efficacy, and some peculiar qualities. It is "the most solemn and authentic act that a man can possibly perform with relation to the disposal of his property." ^^^ To this instrument applies the maxim that " things of a higher nature determine things of a lower nature." ^^ An agreement under seal, or specialty, will merge, i. (?., swallow up and annul the remedy in respect of the simple contract so authenticated. It does not in general need any consideration (Arts. 22,58) to support it, but the evidence of consent in such a contract is forthcoming in the recei])t and accept- ance of the instrument by either of the contracting parties. Our law, as just stated, requires that a deed WRITTEN INSTRUMENTS. 121 shall be delivered actually or constructively, and if so delivered it must be actually or constructively received. Further, a deed estops or coD(jludes the parties to it from gainsaying what they have thereby asserted, and the force of this estoppel may be such as to preclude a party to it from insisting on the illegality of a transaction between himself and the other party to the instrument.^^^ An estoppel, moreover, binds not only the parties but their privies. " If a man make a. lease by indenture of D. in which he hath nothing, and after purchases D. in fee, and then bargains and sells it to A. and his heirs, A. shall be bound by this estoppel," ^^^ and so would persons be claiming under him. In another important particular does a deed differ from a simple contract. Upon the latter, in case of the death of the contractor or promisor, the remedy, if any, must be against his personal representatives. A man cannot by simple contract render his heir liable to an action upon it ; such action, if maintainable at all, will be so against his executors or administrators. Such is the pol- icy of our common law ; it is otherwise in regard to a contract under seal, which is binding on the heir so far as he may have taken real assets by descent. 122 . TiiK I'lrir.osru'iiv of law. 1<>7. A deed Leing authenticated Ly certain S(»lt'iiiiiitif-, and containing within it engagements very ()l)ligatory and stringent, we may well suppose that apt ])roof is ^leeded of it at Nisi Prius. In an ordinary action upon a deed, not merely must the instrument he produced, but evidence must be given of its due execution, if put in issue. How- ever, (1) a deed thirty years old, and coming from the 2)roi^er custody, proves itself; (2) the attesting witnesses to a deed which does not need to be attested, can be dispensed with at the trial, pro- vided the execution of the deed, not havinsj been admitted, can be proved in some other way ; (3) the execution of a deed, even where needing attes- tation, may be admitted expressly or on the plead- ings. 108. For rendering a transaction operative, a deed may, in virtue of the statute or of the custom- ary law, be indispensable. The statute of frauds makes it so in certain cases, and so do provisions of the joint stock companies' acts. According to our unwritten law, the gift of a chattel can only be perfected by delivery or by deed ; ^^^ and, subject to various exceptions, a corporation can only contract efficiently under seal. Let us suppose, for instance, that an annuity or pension has to be granted by such a body to an officer retirino- from its service. WRITTEN INSTRUMENTS. 123 The annuity, if granted by resolution mei'ely, would be revocable by the corporation ; if meant for the life of the annuitant, or for a term certain, the grant should be by deed.^^^ 109. Of deeds, the simplest is a bond whereby one person binds himself to another to pay a sum of money, or to do some specified thing, the parties to the instrument being obligor and obligee respect- ively. A bond may be executed by a principal and by sureties for the due performance by him of the duties of an office. A bond may be made available as a collateral security, and the issuing of bonds and debentures aifords to railway and other comjDanies a ready mode of raising capital for carrying on their works, 110. A bond is unilateral. It may be single, i. e., may simply acknowledge a liability to pay money. In practice, bowever, to the bond is at- tached a condition framed according to the inten- tions of the parties, and setting forth terms compli- ance with which will render the obligatory j^art of tbe instrument void and of no effect. Such, indeed, was the strictness of the common law, that an abso- lute forfeiture of the bond ensued on non-performance of the condition annexed to it, and although courts of law, assimilating their doctrine to that of courts of equity, ultimately relaxed in rigor towards a de- 124 THK I'llILOSOPIlY OK LAW. faulting oLligor, it was not until the time of Queen Anne that adeciuate relief was extended 1)y the Legislature to the obligor of a money bond, who, through inability or remissness, had failed to pay the sum secured by it on the day appointed. The 4 ct 5 Anne, c, 16, ss. 12, 13, enacts that payment of the principal sum secured by bond, together with interest upon it, and costs, though made after the day specified, shall satisfy the bond. x\lso, by a statute of Will. Ill (8 ct 9 Will. Ill, c. 11, s. 8), damages and costs of suit only are recoverable in an action UYiOii a bond executed by way of secu- rity for the performance of covenants (Art. 114) contained in an indenture, the penalty of the bond not being in this case wholly and irretrievably for- feited. 111. The obligation of a bond maybe discharged by cancellation, if the instrument be effaced or destroyed with the intent of canceling and nullify- ing it, or by a release under seal, 2. e.j In' a deed giving up the right of action or claim which has arisen or may arise upon the bond. A distinction is, however, to be observed between the giving of one bond in satisfiiction of another not yet due, and the giving a formal release of an instrument under seal, and then substituting for it another similar security ; the former transaction could not, at com- WRITTEN" INSTRUMENTS. 125 mou law, be successfully insisted on by way of answer to an action upon the original instrument, whereas the latter transaction might be so, for one deed may be discharged by another deed, and a fresh liability may at the same moment becreated.-^*^ This strict rule of our common law mio-ht not be favored in equity, but from what has been latterly said, we infer that a person who has bound himself by deed ought to be very wary in perfecting any arrano-ement for the dissolution of his contract. o He should insist on having the bond delivered up to him when the release is executed, and should by no means satisfy himself with a verbal, or even a written agreement in lieu of its relinquishment by the oblio'ee. o 112. A release may be in law, as if a female ob- ligee of a bond marries the obligor, or if the obligee appoints the obligor his executor, in either of of which cases the obligation is extinguished.^"^ So the obligation of a bond may be excused by the act of God (Art. 78) rendering performance of the condi tion annexed to it impossible,^^ or by an act of Par liament prohibiting or preventing it.^"*^ Further performance of the condition of a bond may be ex cusedby the default of the obligee, as (1) by his ab sence in those cases where his presence is necessary for the j)erformance of the condition ; (2) by his ob- 120 'llli: I'llII.OSol'IlY OF LAW. structing or preventing the pei-formance ; (o) l>yliis neglecting to do tlic first act towards perfonniince, if it is incumbent on him to do it.^**' An obligor, liowcver, will not by his own willful act rendering performance of the condition of the bond impracti- cable, 1)6 absolved or exonerated from the penalty."^ 113. Besides tlie rules, more or less technical, wliicli liave })een enumerated, we must not forget that broad principles applicable to contracts generally apply to a bond. Au instrument so stringent even as this, may on the ground of fraud or illegality be successfully imj)ugned — extrinsic facts may be aver- red against it. If the condition of the bond be for payment of money, evidence will be admissible in an action upon the bond to show that tlie consider- ation for such payment was vicious, such evidence not being inconsistent with the condition, but strik- ing at the very contract itself Nothing is due under sucli a contract — the alleged debt never ex- isted — the law gives no right of action for it. These remarks hold good where there is fraud inducing to the execution of a bond, or where it was executed for a purpose opposed to the common or the statute law. In any such case it would be strange indeed if the law ujiheld the contract or refused to allow the defense suggested to appear on the record."® So a bond opposed to public policy, will be WRITTEN INSTRUMENTS. 127 held void, and certain conditions annexed to bonds Lave been judicially declared to be against law — ex. gr., a condition (1) To do some,thing malum p7'ohibitum or malum in se, expressions which, though now discarded, are sufficiently intelligible; or. (2) To omit the doing of that which is a duty ; or (3) To encourage such crimes or omissions as just indicated. Such conditions as these, we read, the law will always, and without any regard to circumstances, defeat, being concerned to remove all temptations and inducements, either to the com- mission of a crime or to the omission of a duty. But in construing a condition, if there may be a way found out to perform it without a breach of the law, the condition will be held good."^ 114. In any kind of indenture or agreement under seal, irrespective of the matter to which it relates, covenants may be inserted, nor is any 23ar- ticular form of words necessary to make a covenant, for "Wherever the court can collect from the particular instrument an engagement on the one side to do or not to do something, that amounts to a covenant." '^^^ jSTor is a covenant necessarily directed to the doing of something m futm'O, it may amount to an undertaking that something has been already done. A covenant is distinguishable from a condition, which is a kind of proviso creat- 128 TIIK I'llILOSOI'IIY OF LAW. ing, eiilargiiif!;, or defeating nii interest upon the liaj)pening of a specified event. A condition may indicate a cause of forfeiture or something wliich must be done before an interest given can fully vest. 115. As in the case of any other instrument, so in that of an indenture, the court will be called on to construe and interpret its language if obscure — Avill have to seek out the intention of the parties to an express covenant — or, may be, to raise a coven- ant by implication out of the words used, and so to confer rights and impose liabilities upon parties which do not originate out of the deed. Or the court may be called on to infer or imply a covenant from the use of certain words havino; a known les-al operation, the main object kept in view being to supply defects of expression, and to prevent the evasion of his covenant by the covenantor in conse- quence of the equivocal wording of the deed ; the courts have therefore adopted as a general rule of construction, that ambiguous words or words in equilihrio are to be taken most strongly against the covenantor. This rule was on one occasion applied by Lord Kenyon,^^^ to fix a tenant with liability for the expense of building a party wall, for the cove- nants in the lease usually called tenants' covenants seemed to point to this as being the intention of the WRITTEN INSTRUMENTS. 129 parties, and the words in a deed are to be construed most strongly contra, 'proferentem. 116. If consistent with the tenor atfd import of the instrument, a covenant must Ije read according to its natural grammatical meaning, for thus may effect best be given to the intent of the parties as set forth and indicated by their words, ex. gr. : In a separation deed between husband and wife the hus- band covenanted with trustees to pay them an annuity for his wife's support " during their joint lives and so long as they should live separate and apart." Did the husband's obligation to pay this annuity cease by reason of a subsequent dissolution of the marriage consequent on the wife's miscon- duct? It was argued that it did so, the deed con- templating a continuance of the relation which gave rise to it; but this argument did not avail, because no express words thus limiting the husband's li;t- bility could be found in the deed, nor was there a clear implication therein to the effect contended for.^^2 An important question may arise upon a deed containing covenants of this kind. Is one of such covenants dependent on another of them, or are they to be viewed as independent ? The question suggested is not merely technical in its nature. A. covenants with B. that he will go to York. B. 9 130 TlIK l'IIII.()S(»I'IIV OF LAW. covenants w llli A. tluit lie will pay liiiii a sum <»f iiioucy. Itinay l)e, iij)<)ii coiistniction of tlie deed, tliat the going to York is a condition precedent to tlie j)ayment of tlie money, or it may l>e tliat tliese two acts are altogether independent of each other, and according as one or the other interpretation is ado[)ted, so will the cause of complaint shape itself, and so will the proofs l)e adduced, arranged, and marshaled for Nisi Prius.^^^ 117. Thus the framing of covenants may be fraught with diiliculty, even when undertaken by the skilled conveyancer or the experienced solicitor. For his guidance one primary rule must be had in view — he will bew^are of narrowing and limiting the operation of an express general covenant, of ex- cluding altogether an implied one, by the insertion in his draft of words aimed at benefiting his client, but which, instead of doing so, may prejudice him. Also the practitioner will beware of binding a cove- nantor by express words or by necessary implica- tion to do that performance of which may after- wards become impossible. The lessee of coals under an estate covenanted tc raise a certain quantity of coal in each year during the term, paying royalty for the same at so much per ton, and covenanting to pay an equal amount of money as fixed rent, whether the coals WRITTEN INSTRUMENTS. 131 should or sliould not be raised. The mine having: become exhausted during the term, the lessee there- upon contended that the covenant for payment of rent was conditional on the existence of coal to be worked and j^aid for. It was held, however, that the covenant in question did not carry with it by implication any such condition as suggested, and no such condition being expressed, it was furthei* held that the lessee was liable for rent accordino- to the scale or standard stipulated by the parties, during the continuance of the term. jSTeither a court of law nor a court of equity would willingly act in disregard of the maxim, that " the law does not comj)el a man to do what is impossible." Before doing so they must be Avell assured that the cove- nant under notice really has the meaning assigned to it by the covenantee.^^ A covenantor, moreover, will under certain cir- cumstances be favoi'ably regarded, and will be ab- solved from his positive engagement where justice requires that he should be so. If, for instance, a man covenants to do that which at the time of cove- nanting might lawfully be done, and an act of Par- liament is subsequently passed which renders the doing of the particular thing unlawful, the covenant is repealed or nullified by the act. Cases within the operation of this rule sometimes occur in conse- 132 THE PIIILOSOPIIY OF LAW. queiice of war ])ieaking out between two countries liavino: nierc.intile dealinj^s with each other. Thus a vessel is chartered to go to a distant port, sliip a cargo of goods, and return to this country. Wliilst on her voyage, war breaks out with the country in wliich the foreign port is situate. The vessel in consequence cannot ship her 'cargo, and in this case the charterer is discharged.^'^^ If a man covenants not to do that which at the time of covenantim? might lawfully be done, and a statute afterwards enacted compels him to do it, here also the statute repeals the covenant. But if a man covenants not to do that which at the time of covenantins; was unlawful, and an act comes and makes the doing of it lawful, by the passing of such an act the covenant is not repealed. lis. Satisfied that his contract under seal, whether it be a bond or an indenture, will have to be strictly proved, and that every word and j^hrase contained in it will be justly construed, a person may, in a transaction of moment and allowing of due deliberation, be well advised to resort to such a method of assurance. CHAPTER V. LEGAL PRIXCIPLES APPLIED TO CONTRACTS. "The law of England . . . exclusive of positive law enacted by statute, depends upon principles; and these principles run through all the»cases, according as the particular circumstances of each have been found to fall within the one or other of them." — Lord Mansfield. 119. 1^ this chapter an attempt will be made to apply legal principles to given facts involving contract, and to show how questions arising upon such facts should be answered. The words of Lord Mansfield, siq)ra, will in the following pages be ex- emplified, and another remark of the same eminent judge will be fully verified: "The law does not con- sist in particular cases, but in general principles." That some familiarity with legal principles, and even with law as applicable to this or that state of facts, is desirable, may perhaps have already become apparent to the reader. In the daily routine of life, and, a fortiori, in the course of trading transactions, points continually arise upon which immediate de- cision must be made ; any one of us, indeed, may thus be called on to exercise his judgment and dis- crimination. If some general or popular knowledge 134 Tin: T'liTLosopny of law. of l;i\v 1)(', U'^ 1 liuiiiMy conceive it is, desirable for tlie coiimimiity, much more is it fitting that particii- hir sections of tlie ])u1jlic sliould acquire, as they may do, familiarity with such branches of our law and such legal principles as specially concern and affect themselves. And this remark seems suitable even where there may be no necessity for coming to an immediate decision as to what should be done in an emergency; a client availing himself of profes- sional aid should have some tolerably definite idea of his actual position, and should be able readily to appreciate, when ex2:)lained to him, the difficulties surrouudinir it. 120. In preceding pages the contract of surety- ship has been noticed ; it is sometimes constituted l)y deed, sometimes by writing not under seal (Art. 90), and in regard to it an additional remark, appo- site for carrying out the idea giving rise to this chapter, may be ofl:ered. Where a man executes a bond as surety for the principal obligor, he will be freed from liability on the bond by conduct of the obligee which is not consistent with good faith or fair and proper deal- ing, though perhaps scarcely amounting to ^vhat would popularly be termed fraud. Should the arrangement between the principal and obligee LEGAL PRINCIPLES APPLIED TO COXTRACTS. 135 whicli induced the undertaking of the surety be altered in any material particular by the immediate parties to it, without notice to or assept, express or tacit, of the surety, he will be discharged. A bond was given by the obligor as surety, that a servant would, from time to time and at all times during the service, satisfactorily account for and pay over to his master all moneys received by the servant for the master's use. The servant made default in pay- ing over moneys thus received, yet the master knowing — but not informing the surety — thereof, retained the servant in his service. It was held that in respect of any default subsequent to the retention the surety was discharged.^^^ The rule thus stated and applied is subject to some qualification : being meant for the benefit of the surety or contractor, it holds only where, if not applied, he would be prejudiced. If one man enters into a bond as surety for the performance by another of two things which are separate and dis- tinct, a subsequent alteration of the principaPs con- tract as to one of such things, without the knowl- edge and consent of the surety, would not operate to release the surety from his contract of suretyship as to the other of such thinscs.^^^ In such circum- stances the surety is released quoad- that undertak- ing in regard to which he \vould be prejudiced by loO TIIK rillLOSoI'IIV OF LAW the ;ilt('i'ati(»ii made; in respect to the other under- takiii;ht be thouc^ht to flow from it. CHAPTER VI. A TORT— T\'HAT IT IS. " II ne faut pas etre etonne trouver dans les lois . . tant de regies, de restrictions, d'extensions, qui multiplient les cas particuliers, et semblent faire un art de la raison meme." — Montesquieu. " If men will multiply injuries, actions must be multiplied too." — Lord Holt. 124. A "toet" is a wrong clone by one person to another, the term being used in civil, not in crim- inal procedure ; and the law set forth in the fol- lowing pages is of great and increasing importance, because injuries new in kind are almost daily presenting themselves, and wrongs long recognized as such are becoming more frequent and more hurtful. The mere infrinsrement or invasion of a riojht constitutes in general injury for which an action wnll lie. Such an injury may be constituted by an assault, by false imprisonment, by bodily hurt done through carelessness, and so forth. If A. unlaw- fully place a part of his foot on B.'s land, this is in law a trespass. If a man fails to keep his cattle on his own land, so that they get into his neighbor's 154 Tin: I'liiLosoniY of law. licld, it is firlmd facie a trespass. The act :hbor. The law allows a kind of reason- able selfishness on such an occasion. There may be a conflict between duties, between that whicli a man owes to himself and his dependents and that which he owes to his neis^hbor ; and the srreater or more imperative of these duties must 2:)revail.^^^ True it is that a man should in general so use his own property as not to damage his neighbor or his neigh- A TORT— WHAT IT IS. 163 bor's property. This rule, however, must be qualified in the maimer stated. In general, moreover, a person having the exclu- sive use of water running on to his land, may reasonably enjoy it in such manner as he likes, and apply it to some novel purpose more beneficial to himself than previously, although a riparian owner higher up the stream, having wrongfully diverted it, might complain that his rights had thus been abridged, inasmuch as for the wrongful act of di- version heavier damages might have to be paid by him than before. It is the necessary effect of every appropriation of running water to a new and more beneficial use, that a wrono-ful diversion or abstrac- tion of it entails a larger measure of liability.^^^ The argument thus urged against the exercise by plaintiff of his right was somewhat artificial, and was held untenable, regard being had to recognized principles of law. 133. It may be well here to observe that Parlia- ment, when called on to legislate respecting public works, necessarily allows that to be done which may for a time prejudice the public or individuals; usu- ally, however, it prescribes the mode of doing it, and enjoins what shall be done to mitigate or com- pensate for the annoyance caused. And even when this is otherwise, our common law may raise out of IC-i Tiir: pKiLosoriiY of law. the Avoids of an enactment a duty pertinent to the occasion, altliougli not expressly stated or defined tlierein. For instance, where persons are authorized by statute to create what would 2))'hnd facie 11111011111 to an indictable nuisance, as impeding the traflac along a highway, they are bound, without any ex- press clause being inserted in the act, to put and keep up for the public a proper substitute for the old way, such as a bridge. If a railway company is empowered to lay rails at a level crossing, and ac- cordingly lays such rails as may be necessary for the traffic, the rails must be laid down and kept so as to cause as little injury or danger to the public as possible.^*^ In such a case the particular duty is imposed by statute, and an action for breach or non- observance of it causing damage will lie at suit of the injured person. 134. It nuist have become obvious from several of the preceding articles (see particularly Arts. 12, 126, 130) that a distinction is to be noticed be- tween absolute and qualified rights — between that which is mine exclusive of any right in another or in others, present or future, and that of whicb 1 have but a qualified possession, a possession sub- servient to the contemporary or future use of the property by third persons. Reverting to a state of things suj^posed in x\rt. A TORT— WHAT IT IS. 165 12. If I place a log of wood across a public path, and injury be thereby caused to a passer-by, the soil being my own, but the public or individuals having a right of way over it, an action will lie against me, because there is a privilege vested in others of going along the path without inter- ruption. K, however, there be no right of way over it, I may place any obstruction on my own land, and a stranger who has no right to be there, and sustains damage consequent on his own tres- pass, cannot sue me successfully for the damage so sustained. A., seized in fee of waste land adjoin- ing a highway, digs a pit in the waste, distant a dozen yards or so from the highway, and B.'s horse, escaping into the waste, falls into the pit. B. cannot sue A. for damage thence accruing, for A. sunk the pit on his own laud, and B. was to blame for allowing his horse to escape into the waste. Here of course we must suppose that no duty to maintain or repair fences was imposed on A., for if such a duty were imposed, and B.'s horse had strayed through a gap in the fence on to A.'s land, the result at law would have been different.^^^ Facts analogous to those put are frequently brought before a jury in actions against railway comj^anies. Sometimes the claim for damages resulting from a breach of duty such as indicated is founded on the IGO Tiir: pinLOSDPirY of law. niiwiitteii or ciistoinary, sometimes on tlie statute law. 135. A duty akin to such as last treated of may be owing to the public generally, or to some indivi- dual who has been brought iuto relation with him on whom it is laid, or who has in some way as- sumed and undertaken it. The owner or person in possession of premises adjoining a highwjp-y, will be liable for a nuisance to such highway if he allo\7 on his premises, an unprotected excavation so near the road that a person laW'fully using it, and exercising ordinary caution, by accidentally slipping, might fall into the hole. And, generally speaking, the responsi- bility for such a nuisance rests on him who is in occupation of the premises whereon the nuisance comj)lained of exists. It may be that other persons are also liable, but the occupier, who probably knows most about it, is bound to see that there is no dangerous nuisance upon the premises, and should he allow one to exist there, he is guilty of a l^reach of duty whence, if damage result to an individual, the owner or occupier may incur civil liability.^''^ A peculiarity may here be noticed ; the excavation being within the boundary of A.'s (the owner's or occupier's) premises, B., the injured person, is technically a trespasser in the eye of the A TORT— WHAT IT IS. 167 law, in transgressing the line of demarcation be- tween the highway and A.'s private premises, and yet may recover damages from A. in respect of the hurt sustained by him through falling into the hole ; the reason of this being that a public nui- sance has been created or permitted within the boundary of A.'s land, causing damage/®^ From what was stated in Arts. 13 and 156, we may deduce that where a person resorts to premises in the course of business, on the express or implied invitation of their occuj)ier, such j^erson himself using reasonable care is entitled to expect the occu- pier to use like care to prevent damage from any cause of unusual dano;er, which he knows or ouo;ht to know of, existing on the premises. Where there is evidence of neglect, that is for the juiy. If there be evidence that the plaintiff was on the defend- ant's premises on business by his, the defendant's, express or tacit invitation — ^that there was an un- usual source of danger existing there known to or within the knowledge of the defendant, and that damage occurred to the plaintiff by reason of the defendant or his servants not using sufficient means to avert and warn the plaintiff of it, the defend- ant will be liable as for breach of duty causing damage. ^^^ Cases such as the above, in which of course the 108 Tiir: I'liiLosopiiv of law. facts may infinitely vary, have interest for the legal analyst, as showing and rendering quite appreciable the distinction between breach of duty and negli- gence. 136. Bodily hurt is sometimes caused by the attack of an animal, domesticated or not. A mishap of this kind is frequently occurring, and is peculiar as regards the law applicable to it and the proofs requisite p'O and con. at Nisi Prius, when an action originates out of it. The owner of a domesticated or other animal not naturally inclined to mischief — for example, a dog — is not liable for bodily hurt done by it, unless it can be shown that such owner previously had notice of the animal's mischievous proj)ensity, or unless the damage done was attrib- utable to neglect on his part ; it is in general neces- sary in an action for injury done by such an animal to allege and prove the scienter. Proof of the scien- ter may be by showing the fact of actual damage having been done by the animal on a previous occa- sion, to the defendant's knowledge, which may be evidenced by his presence at the time when the mischief was done, or by notice to him of the fiict. Notice may be either to the defendant directly or indirectly to him — as through his wife or servant — and thou2:h notice to a servant or to a wife mis-ht not necessarily suffice to fix the defendant in such a A TORT— WHAT IT IS. 160 case with liability, yet should some additional fact be established — as that the wife had assisted in car- rying on her husband's business, and »that a formal complaint had been made to the wife when on her husband's premises, and for the purpose of being communicated to him — these proofs taken together might well suffice to fortify the plaintiff's case, tliough the main question involved, as one of fact, would be for the jury. If the owner of a dog puts it under the care of a servant, the servant's knowledge of the dog's ferocity is deemed to be the knowledo'e of the master.^^ The owner of an animal undomesticated is bound to keep it in sure custody, and will be liable, should it escape and injure any one, to pay him compensa- tory damages.-*^^ Here specific proof of negligence would not be needed, and the scienter would be presumed. In either of the cases just put, the rule of law must be stated and explained to the jury by the judge, and in any case such as first mentioned difficulty may be felt as to whether the proofs of the scienter Si(\di\iQ.Q(\. suffice to fix the defendant with liability. 137. Negligence is fruitful in producing damage ; an act done negligently having been done otherwise than it would have been by a reasonable man 170 TIIK IMIILOSOI'IIY OF LAW. guided l)y considerations such as ordinarily regulate the conduct of human affairs. Negligence may also consist in the omitting to do something ^v]li(•h a reasonable man would do. Negligence causing damage may lay the founda- tion of an action, and although something more than a mere scintilla of proof of negligence would be needed in suppoii; of the plaintiff's case, the bare facts estab- lished in evidence may be such as to show that the defendant was negligent. Ex. gr., suppose that A., walking in a public street, past B.'s warehouse, is injured by a bale of goods falling from an upper flooring of it upon him, there would, upon proof of these facts at Nisi Prius, be lyrimci facie evidence of negligence as against B., which he, to entitle himself to a verdict, ought to rebut. 138. Difficulty as to the proof of negligence and its sufficiency often arises ; well-trained, experienced lawyers differing in regard to it, and the mere fact of protracted litigation thus ensuing, guided and directed by eminent practitioners, suffice to show, not the uncertainty of our law, for its principles rel- evant and applicable to the facts suh judice have been clearly determined, but the perplexities which may have to be encountered where fact and law are blended together, and where consequently the A TORT— WHAT IT IS. 171 judges may eventually be called on to perform in some sort tlie functions of jurymeu.^®^ Notwithstanding the difficulty adverted to, the judge at Nisi Prius will, in a case such as supposed, have to say whether there is or is not such quantum of evidence as to justify him in submitting it to the jury, and the due performance of this part of his duty may involve perplexing considerations. Proofs, indeed, are sometimes so much in conflict, or so nicely balanced, that in the same case similarly presented, by different juries different verdicts will be given, and the presiding judge will sometimes acknowledge himself at fault in determining on which side is the preponderance of evidence. 139. To the matter now before us some brief reference has already been made (Art. 123), and a rule has been stated of this kind : Where the dam- age complained of was caused entirely by defend- ant's negligence, the plaintiff would be entitled to recover. If the plaintiff himself so far contributed to . the mishap by his own negligence or want of ordinary care and caution, that but for such negli- gence or want of care the misfortune would not have happened, the plaintiff will be precluded from redress. Mere negligence or want of ordinary care or caution would not, however, disentitle him to recover if the defendant might, by the exercise of 1<2 TJII:: I'lIlLOSOl'IlY OF LAW. care on liis part, have avoided the consequences of the neglect or carelessness of plaintiff. '^^^ It may readily be supposed that, in applying to facts about which the proofs are usually conflicting, a rule so critically Avoi'ded, mistakes are often made, and ac- cordingly many cases are to be found in tlie reports which have been discussed in hanc, involving the doctrine of contributory negligence. This doctrine has been held applicable under circumstances to which, at first sight, it might not have been thought so. The parent of a child of very tender years may, by contributory negligence, disentitle the child hurt through the defendant's default from obtaining redress in damages — the child being so far identified with the parent, that an action brousjht in the child's name would not be maintainable.^^^ A servant, whilst doing his mas- ter's work, becomes for some j^urposes identified with him ; he could not, for instance, recover against defendant for damages caused by negligence or breach of duty, where the master himself, by reason of his neglect to do what he ought to have done, would have been precluded from recovering. -"^ A passenger by an omnibus is so ftir identified with the driver that the nedio'ence of the latter, con- tributing to a collision with another omnibus, may disentitle the passenger to redress as against its A TORT— WHAT IT IS. 173 owner.^*'^ This «ame principle has been applied so as to identify, under analogous circumstances, a passenger by railway train with the engine-driver. At all events the question has been judicially sug- gested as worthy of consideration, whether, in a case of railway collision, with evidence of contrib- utory negligence, a passenger sustaining bodily hurt therefrom could maintain an action for breach of contract against the company which carried him, and another action for negligence against the company w^hose servants caused the accident.^^* 140. Discussions respecting negligence have fre- quently arisen in actions brought under the remark- able statute known as Lord Campbell's act (9 and 10 Vict. c. 93, amended by 27 and 28 Vict. c. 95), which innovates on two established rules of our customary law — (1) that an action for bodily hurt cannot be maintained after the death of the injured person for the benefit of his estate ; and (2) that w^here an act is in its nature felonious, the civil remedy, if any, in respect of it is merged, or rather suspended, until jDublic justice shall have been satisfied by the prosecution of the offender. Lord Camj)bell's act provides that an action shall be maintainable by an executor or administrator for the benefit of certain of the survivins; relatives ot one whose death has been caused by a wrongful 174: Tin: philosophy of law. act or l)y neglect or default, ^vllich, if deatli had not ensued, would Lave been actionable : and this 8tat- ute further enacts, that for the negligent or wrong- ful act ending in death, compensation in damages may he enforced, although the death were caused under such circumstances as amount in law to felony. 141. It may naturally be asked how, where an action is successfully brought under the act referred to, the measure of damages ought to be determined? What considerations may influence the jury in assessing them ? What description of evidence is to be deemed relevant for assessing them ? To such queries these general answers must sufiice : That where death is caused by negligence the jury are to give compensatory damages only — not vindictive or exemplary damages ; fui-ther, that the jury are to exclude from their consideration as well the loss or suffering of the deceased himself as the mental anguish caused to his family by his death ; that they should restrict themselves solely to esti- mating the damage resulting to the family there- from; by reason of expenses to which they may have been thus put ; by reason of the loss of salary (if any) enjoyed by the deceased, and benefiting his family ; by reason of the loss of the profits of his business. A TORT— WHAT IT IS. 175 Such are the ordinary elements and consider- ations available for an assessment of damages un- der the statute mentioned. In an action brouo-ht under its provisions, the evidence of experts, such as accountants and actuaries, is admissible, and will sometimes remove difficulties which miij-ht be in- surmountable by a jury thus unaided. Doubtless extraordinary facts may be suggested or imported into almost any given case which would render a satisfactory decision touching the amount of damages to be awarded extremely difficult. It seems, however, that mere remote contingencies could not be taken into account at all in the assess- ment of damages. To railway companies there can be no doubt that hardship has been caused through the readiness of juries to compensate individuals in- ordinately at their expense for damage sustained in consequence of the death of a relative through neg- ligence. 142. In an action against a railway company, such as referred to, fraud by the complainant is very common, though proof of malpractice by him in connection with the claim advanced would mate- rially jeopardize his case. Indeed, the conduct of the party to a suit may be of the highest import- ance in determining whether the cause of the action in which he is plaintiff, or the ground of defense if 170 Till': I'llILOSOI'lIY OF LAW. lie is clefi'iidant, is nii lionost aiul just oiif. If, for example, it be proved tliat a man suing in a couii; of justice has been suborning false testimony, and has tried to have recourse to perjury, it is strong to show that he knew that his cause of action was un- rio-hteons ; this is therefore evidence for the jury, not necessarily conclusive, but to be weighed by them in conjunction with other facts. In an action by husband and wife for a personal hurt caused to the latter by the defendants' negli- gence, witnesses were called for the defense, w^ho proved that the husband and a clerk in the office of the plaintiffs' attorney had jointly requested them (the witnesses) to give evidence in support of the plaintiffs' case, although plaintiffs knew that the persons thus applied to had not been present at the time when the accident happened. Such evidence was held to be receivable, as amounting to an ad- mission by conduct that the plaintiffs' case was not good and genuiue.^*^^ Such a i^rinciple as stated may be applicable to the conduct of plaintiffs suing under Lord Campbell's act (9 sr)PIIV OF LAW. inadequacy of (lamag(3H a ncnv^ trial is seldom granted. It was so, however, recently, in an action for slander, tlie sniallness of the amount awarded showing tliat tlie jury had made a compromise, and, instead of deciding the issues submitted to them, had agreed to find for tlie plaintiff with nominal damaires.*^^^ In the case cited, the slanderous words imputed to plaintiff the commission of an indicta- ble offense, and were calculated to be extremely injurious to liis character. Hence, it could not be considered that any verdict had really been given — the very meaning of the word "verdict" having been falsified. 151. A wrongful act, more j^revalent now than formerly, consists in fraud producing damage, and as fraud may be ground of defense to an action, so may it lay the foundation of one. Instances of fraudulent misrepresentation have been already given (Arts. 14, 49, 80, 97), and are almost daily presenting themselves. Redress for damage thus caused is oftener sought for in equity than at law, yet one case, typical of a large class of suits such as referred to, which came before a court of law, may here be noticed. The complainant sued as for a tort, and after stating the formation of a company for the purpose of smelting and refining the ores of certain mines, and that a certain number A TORT— "VTHAT IT IS. 193 of shares therein were to be appropriated and offered to tlie public at so mucli per share, alleged that the defendant, intending to defFaud, deceive and injure the public, and to cause it to be publicly represented and advertised that the said company- was likely to be a safe and profitable undertaking, and also to deceive the public who might become purchasers of the said shares, and to induce them to become such purchasers, falsely, fraudulently and deceitfully caused and procured to be publicly ad- vertised and made known, by prospectus, certain false statements, by means of which the defendant wrongfully and fraudulently induced the plaintiff to become the purchaser and bearer of a large num- ber of shares in the said undertaking, in conse- quence whereof he incurred loss. To the sufficiency of this complaint objection having been taken, the action was held to be maintainable, as founded upon a false representation, fraudulently made by the defendant to the plaintiff, for the purpose of in- ducing the plaintiff to act upon it, the plaintiff showing that by so acting upon it he had suffered damage. Under sucli circumstances, although the parties had been before the particular transaction unknown to each other, an action lies ; and it would be strange if a man who has so suffered damage 13 104 THE rMIILOSOPIlY OF LAW. from tlic wroiii^ful act of another were without reinedy.''^''^'^ Fraud is sometimes established at Nisi Prius hj putting before the juiy an assemblage of facts from Avlnch, as reasonable men, the essential inf^i-edient in the right of action may be inferred by them ; such asi^eml^lage of facts, perhaps, rather raising a presumption than amounting U> direct and express ])roof of ?nala fdes. Evidence of this sort has especial force when it brings before the jury the conduct and demeanor of defendant, putting them in such a light as to appear inconsistent with straightforwardness, with rectitude and honesty, or with the real wish to perform a duty. The success of a litigant may be greatly jeopardized by proofs tending to show that in treating as vendor of prop- erty with defendants (the purchasers of it), he had " stood by " and allowed them for his own benefit to draw inferences as to the value of the property entirely erroneous, and whicli, when acted on, proved highly detrimental.'-'^ 15-2. From what has been said in the present chapter may be deduced the principal tests for de- termining whether upon given facts an action of tort be maintainable. Is there proof that a right vested in plaintiff has been infi'inged by defendant ? or that some duty owing by defendant to plaintiff A TORT— WHAT IT IS. 195 has been violated or neo;;lected to his damag^e ? Is there proof of anything to justify the act com- plained of? or to neutralize its apparently tortious character ? Torts not directly affecting the person, reputa- tion, or property of an individual, may nevertheless seriously affect him in some other way ; a misrepre- sentation as to the credit of a stranger may cause ruin to him who relies on it ; a malicious act may be equally detrimental to him against whom it is leveled. A breach of duty owing by A. to B., in virtue of some relation subsisting between them, may entail consequences, not too remotely connected with the breach, leading to pecuniary loss and even bankruptcy. Negligence causing death, and so prejudicing relatives who had looked to the de- ceased person for maintenance and support, negli- gence causing loss of service to master by reason of bodily hurt done to his servant, may be actionable. The mean and objectionable act of enticing away a man's servant or apprentice may be actionable (Art. 169). For any one of such acts our law is quite willing and able to supply a remedy by awarding, through the intervention of a jury, pecuniary com- pensation for the damage caused. I will merely add that the doctrine of ratifica- tion may thus be applied in a case of tort. A., J on THE rillLOSOPIIY OF LAW. professing to act l»y Jiiy autlioiity, does that ^vhicll, 'prhnd facie, is a tiesj[)ass, and I afterwards assent to and ad()[)t liis act. I hecome a trespasser, as it were, by estoppel, unless I can justify the act. Fur- ther, where an act which, if unauthorized, would amount to a trespass has been done in the name and on behalf of another, though without previous authority, the subsequent ratification may enable the party on whose behalf the act was done to take advantage of it, and to treat it as having been done by his direction. Here a rather subtle qualification has to be noticed ; the act of ratification must take place at a time and under circumstances when the ratifying party might himself lawfully have done the act which he ratifies. -^ Further, as regards tort such as treated of and exemplified in the preceding pages, finality has been enforced in part by the statute 21 Jac. I, c. 16, already cited (Art. 105), in part by a strict recog- nition of the doctrines of merger and estoppel (Art. 106) — by holding that the original cause of action is merged in the judgment of a court of record, and altogether gone — by estopping either party to such judgment or his privies from questioning it in an- other suit. Judgment recovered as against one of several joint wrong-doers, tliough unsatisfied, will operate in bar of proceeding against another of them. ^'^ CHAPTER YII. LEGAL PRINCIPLES APPLIED TO TORTS. "It is a vain thing to imagine a right without a remedj-." Lord Holt. 153. Lord Host's dictum has been many times re-echoed, and we have been quite recently told that " where there is a leo-al rio;ht, even ao;ainst the cro^vn, there must be a legal remedy, and one which can be made effectual." "^ The law will create a remedy fit for the occasion in order that a complainant may not be without redress, should no precedent be found in accordance with which it may be had. In Art. 148, the proposition stated has been strikingly exemplified, and a few additional instances will in this chapter be given to a like ef- fect, showing that our law can apply its old prin- ciples to new facts, although, whilst willing and competent to do so, it will not swerve from an ob- servance of established doctrines. The reader of w^hat follows may amplify the cat- aloo-ue of cases submitted without limit. 198 THE riiiLosoriiY of law. 154. A question of much interest amongst farm- ers and residents in country districts quite recently arose of this kind. An action was Ijrouglit Vjy the owner of a horse against a person to whom he had sent it to be turned out to pasture, or " agisted," for negligently putting it into a field accessible to a bull, by which it was gored and killed. The facts were that the defendant, being the owner of marsh laud, turned out upon it the plaintiffs horse in company with some heifers, the land being divided from the fijpld where the bull was by a ditch, which the bull could pass, and which he was accustomed to pass in order to visit the heifers. One day the horse was found dead, having evidently been gored by a bull; and the action was brought, not against the owner of the bull, but against the defendant, who agisted the horse, for not taking due care of it, and so allowing it to be gored by the bull. There was no evidence that the bull was used to gore man or beast ; on the contrary, witnesses testified that he was really very quiet, but the circumstances attending his attack on plaintiff's horse could not be deposed to. There was evidence showing generally that it was not safe to put bulls and cows in the same field with horses, though some witnesses said that this practice was usual, and that no harm ordinarily came of it. It LEGAL PRINCIPLES APPLIED TO TORTS. 190 appeared that bulls are accustomed to stray, so tbat the defendant ought to have anticipated the proba- bility of the bull coming across the ditch into the same field with the horse, and, indeed, knew that it did so. On this evidence the jury found that there had been a want of due and reasonable care on the part of the defendant in keeping the plaintiff's ' horse, and awarded substantial damages. The case standing thus, the action was held to be maintainable upon the ground that the defend- ant had been neoiig-ent in not takino; due care of the horse, having put it in a field into which he knew the bull was accustomed to come. "Was that neo-liD'ence ? There was evidence that it was, as a bull is a treacherous animal and of uncertain temper. The law doubtless is that domestic ani- mals, such as bulls and dogs, are not to be regarded by their owners as necessarily dangerous. This rule probably had its origin iu times when there were no fences, and cattle were left to wander about on commons and wastes. Therefore, the owner was not liable unless he knew them to be vicious. But it cannot be assumed that these animals are always safe to put other animals with. There is no author- ity to extend the rule to ^^arties who are bound by contract to take proper care of animals. The de- fendant in the case put was intrusted with the 200 THE riiiLusoriiY of law. horse, and bound to take proper care of it, and liad fiiiled to do so." Here, accordingly, the result was adverse to the defendant, albeit another argument was urged on his behalf, viz., that the action should have been brouglit against the owner of the bull : as to this, however, it ^vas judicially said that if so, the de- fendant, the agister of the horse, could, under the circumstances mentioned, also sustain an action against the owner of the bull, as the bull wrong- fully entered his field. "But then, in such an action against the owner, it would be necessary to show that he knew it to be vicious, so that it would have been more difficult to maintain that action than this; the cause of action for negligence in keeping the horse being quite different from that against the owner of the animal doing the injury.""^ It will perhaps be thought curious that an ancient head of law, regarding negligence generally, and liability by reason of want of care in the cus- tody of animals domesticated or otherwise in paiiicular, should at this day be appealed to under novel circumstances for determinins; the risjhts and liabilities of parties. 155. The following case illustrates -what has been said in the preceding chapter, and further shows how le2:al principles may be applied to facts. LEGAL PRINCIPLES APPLIED TO TOUTS. 201 The plaiDtiff deposited with a bank for safe custody a cask containing gold doubloons. It was placed with other deposits in a vaults in the bank, and the agent of plaintiff was in the habit of com- ing to the bank to see that his deposit was secure. The deposit was made solely for the plaintiff's accommodation, and without any advantage thence derivable to the bank. No evidence was given to show how the vault in which the money had been placed was secured : but it appeared tliat whenever the plaintiff gave orders to the bank, as he often did, for delivering some of the gold doubloons de- posited as above mentioned, the cask was opened by the cashier or chief clerk,, who delivered the doubloons pursuant to such orders. The cashier and chief clerk, each of whom had previously borne a fair reputation, fraudulently took from the cask doubloons to a large amount, with which they ab- sconded. Upon these facts the bank was held not respon- sible to make good the loss, having been guiltless of gross negligence or fraud ; " tlie bank was no more answerable for the act of its officers than it would have been had they stolen the pocket-book of a per- son who might have laid it upon the counter while he was transacting business at the bank." ^"^ The case just cited exemplifies the rule that a 202 THE PHILOSOPHY OF LAW. gratuitous Lailee is liable only for gross negliirence in regard to the thing bailed; and tliougli degrees of care are not well definable, they are, with some approach to certainty, distinguishable, and a jury, under direction of the judge, must try to discrimin- ate as best they may, between degrees of things which run more or less into eacli other. 156. The plaintiff, suing in a county court, claimed J640 as damages sustained by reason of his cattle being killed through eating the leaves of a yew tree recently felled in defendant's wood adjoin- ing plaintiff's land, and into which the cattle es- caped in consequence of defendant's neglect to repair his fence separating the said wood and land. The defendant ought to have maintained the fence in repair. Such being the substance of plaintiff's claim, proofs in support of it were needed to estab- lish these points: 1st, the possession and occupation of the respective lands of j^laintiff and defendant ; 2dly, the duty of defendant to repair the boundary fence ; 3dly, his neglect to do so ; 4thly, that the alleged damage accrued to plaintiff, and how it hap- pened. It appeared in evidence that the defendant had sold to a third person, C, the right to cut down timber in his wood ; that C.'s servants cut down a LEGAL PRIXCIPLES APPLIED TO TORTS. 203 tree there in sucli a manner that it fell upon and broke the fence separating defendant's land from plaintiff's, and afterwards cut down the yew tree ; further, that plaintiff's cattle escaped from his field through the gap in the fence, caused as above men- tioned, into defendant's wood, and there ate the leaves of the yew tree which caused their death. Several interesting questions of law arose upon the above facts. Was the defendant bound, with- out notice and before the lapse of reasonable time, to repair the fence? Was he liable for damage resulting from the negligence of C.'s serv^ants ? Was the damao-e too remote ? The court at Westminster, reversing the decision below, held that the defend- ant was bound at his peril to maintain at all times, and without notice, a sufficient fence, and that as the damage had not been caused by the act of God (Art. 78) or by vis major, he was liable to make it good. A case founded upon tort more suggestive than this is not perhaps to be found in the reports. Would C, whose servants caused the damage, have been liable to plaintiff? Would C. be liable to recoup defendant in respect of the amount recovered from him at suit of plaintiff? '^^^ 204: TllH I'lllLUSUl'JlY OF LAW. 157. The li;il)ility of the owner of a chattel which has to his knowledge some defect in it, to one who, with permission from the owner, uses tlie chattel and sustains bodily hurt as a consequence of its defective condition, has heen sometimes dis- cussed, and its nature and extent have Vjeen par- tially set forth.^^'' Such liability, in truth, flows from a breach of duty owing by the owner of the chattel towards him who is to use it, this bi-each of duty causing damage to the latter. In a case of this kind, difficulty, however, is sometimes felt in determining whether the substantial question in- volved is one of law or one of fact — of law for the ruling of the judge, of fact for the finding of the jury. Such a difficulty was recently experienced, the facts being as under: The plaintiff, a cab driver, sued the cab proprietor for bodily hurt caused by an unruly horse, whicli had never been harnessed to a cab, the claim for damages being founded upon breach of duty causing damage. The jury at the first trial of the case found that the horse was not reasonably fit to be driven in a cab, and the plaintiff had a verdict. Whereupon arose a question as to the relation subsisting between plaintiff and defendant ; was it that of bailor and bailee, or of master and servant, or was it that of co-adventurers, the liability of the defendant to- LEGAL PRINCIPLES APPLIED TO TORTS. 205 wards plaintiff varying according to the relation between tliem. After miicli difference of opinion amongst the judges u23on these points, a new trial of the cause was ordered; and at this second trial five questions were submitted to the jury, and amongst them these : Did the j^laintiff take the horse and cab wrongfully, or were they intrusted to him by defendant ? If so, were they intrusted to him as bailee or as servant ? The jury found that they were intrusted to plaintiff as bailee, and the plaintiff again had a verdict, which, after an- other argument in hanc^ was allowed to stand. ^^^ 158. A., the owner of certain jewels, puts them in a bag, which is duly sealed and placed by him in the hands of B., a jeweler, for safe custody, B. afterwards breaks the seal, takes the jewels out of the bag, and pledges them to C. for an advance of money. A., being ap23rised of what has happened, demands the jewels of C, who re- fuses to give them up, unless upon payment to him of the sum advanced on them. Upon the facts stated several questions may arise. Is there any, and if so what, civil remedy at suit of A. against C. ? To answer this question we must consider : 1st, in what relation B., the jeweler, stood to A. ; 2dly, whether or not, or how far, A. 200 THE I'liii.nsoniY of law. was bound by B.'s act in j)a\vning tlie jewels? As to the former question, we may conclude that the delivery of the jewels to B. was a bailment of them for the use of the bailor, and that the jeweler was a mere depositary, having no property in tlie jewels, which could give him a right to sell or dispose of them, but having tlie custody of them only ; 2dly we may conclude that the pledge of the jewels by B. was wrongful, and that the refusal by C. to deliver them up, except on payment of the advance, would vest in A. a rio:ht of action acjainst him for their re- CO very. Consequently A. would have a right to sue C. for the jewels, or their value, quite irrespect- ive of the sum advanced on them; in such a case the jury might assess the value of the jewels condi- tionally that if they were returned to the plaintiff nominal damages only should be paid.-"^ Here, moreover, a presumption contra sjyoliatorem might arise. Should C, having the jewels in his posses- sion, refuse to produce them at the trial, the jury could infer them to be of the finest quality. A. would have a right of action again^^t B. for the jewels or their value, although in exercising this right difficulty might be encountered by reason of the doctrine of our law already adverted to (Art. 140) — that where a felony has been committed, causing to an individual pecuniary damage, the inter- LEGAL PRINCIPLES APPLIED TO TORTS. 207 est of the public demands that justice should be sat- isfied before redress by action is sought ; and doubt- less this rule as to the suspension, rather than the en- tire merger, of a right of action for a felony practically, in former times, by reason of the law of forfeiture, operated to extinguish the right altogether. Such might not indeed henceforward be its operation, in- asmuch as by a recent statute (33 & Si Vict. c. 23) forfeiture on conviction for felony has been abol- ished ; the property of the convict, though for a time dealt with and administered under the provis- ions of that act, being, as regards the residue, if any, ultimately restored to him. Let us observe how the rule specified comes into operation, and what course should be taken when it does so. It may happen that a transaction under investigation at Nisi Prius, and apparently grounded upon tort, is found to involve all the ingredients in an indictable offense. Should such offense be a felony — should the plaintiif, for instance, suing in tresj)ass for assault and battery, or for goods wrong- fully taken from him, prove that the defendant had in fact committed in the one case a felonious assault, in the other larceny — the doctrine of our customary law, which has been mentioned, might become opera- tive, and thereupon a question would arise concern- ing the course to be taken by the judge, the case 208 THE riiiLOHorjiY of law. Lefore liim having assumod the aspect indicated. It seems tliat lie could not proj)erly refuse to proceed with the trial, because a Nisi Prius judge is a com- missioner appointed by the crown to try such issues as may be brought before liim. It rather seems that application should be made on behalf of the defendant to the court out of which the writ issued, at some period antecedent to the trial, to stay pro- ceedings ; or that application should l)e made after verdict to prevent the plaintiff, if successful, from obtaining the fruits of judgment.^'''^ Whichever be therig;ht course to be taken under the circumstances supposed, the doctrine alluded to of our common law could not fail to operate ad- versely to A., in an action for damages brought at his suit against B. Should C, however, be minded to sue B. for the money advanced upon the jewels, C. having had to surrender them to A., their abso- lute and rightful owner, the doctrine as to merger would not apply ; it holds only as between the par- ties to the principal transaction. 159. A tort of not uncommon occurrence is con- stituted l)y the infliction of bodily hurt upon a servant causing damage to his master, by reason of loss of service resultinoj from the wrons-ful act and the expense of medical attendance. Such an action LEGAL PRINCIPLES APPLIED TO TORTS. 209 rests upon this basis : that the master has a right to and property in the service of a third person, which right and property have been interfered with by the tortious act of the defendant. Proof of damage is essential to the maintenance of this action. If the hurt were so slight that no loss of service re- sulted from it, the plaintiff could not recover. The damages are assessed secundum allegata et 'probata. The proofs must follow, and be adapted *to the averments made in pleading. A curious discussion recently arose out of an at- tempt to extend the operation of the above method of redress. Can a master maintain an action for bodily hurt done to his servant, and causing his im- mediate death ? It may seem strange that for dam- age and loss of service an action at suit of the master would not in this case lie. When, indeed, the service is simply interrupted by mishap result- ing from negligence, the master may recover dam- ages from defendant. But if the ser\ace is al- together determined by the same cause, no such ac- tion can be sustained. This distinction rests on long continued usage and the general understanding amongst lawyers,'^^^ recognized in the preamble to Lord Campbell's act (9 le to all cases of finding would apply to this, viz., that the absolute owner of the chattel found is entitled to it as aofainst the finder.'^'^ 161. A cursory perusal of cases such as col- lected in the foregoing pages, and a compaiison of them with those cited in Chapter V, may convince the reader that legal principles applicable for resolv- ing questions arising out of tort essentially differ from rules of law which become familiar to us in connection with contract. Tort is more akin to crime than to contract, and is so regarded in our legal literature. CHAPTER VIII. A CRIME— WHAT IT IS. Criminal law " merits, for reasons too obvious to be enlarged on, the at- tention of every man living. For no rank, no elevation in life, and no con- duct, how circumspect soever, ought to tempt a reasonable man to conclude that these inquiries do not, nor possibly can, concern him. A moment's cool reflection on the utter instability of human affiiirs, and the numberless un- foreseen effects which a day may bring forth, will be sufficient to guard any man, conscious of his own infirmities, against a delusion of this kind." — Sir M. Foster. " Les lois ne se chargent de punir que les actions exterieures." Montesquieu. 162. Each member of society should know the duties owiug by him to the public and to indi- viduals, and should be able to recoo;nize his responsibilities. This is especially true as regards the law of crimes. If civil procedure and mat- ters regulated by it are worthy of attention, so, a fortiori^ should be studied and understood the principles of crown law, which controls and gov- erns the members of each class of society, and knows no distinction between ranks. Assuming, then, that each of us should be able to appreciate the doctrines of that coercive law under which he lives, I propose to inquire concern- ing them, first smoothing away preliminary difficul- 214 TlIK rillLOSOl'lIV OK LAW. tics, and tlion Li-idly noticing seriatim the principal ingredients in crinic. 1G3. To the question, wliat is a "criminal act?" the answer most generally api)licable seems to be — a criminal act is one wliicli in some way or other subjects the actor to punishment. If the doer of a specified act is visited with a penalty in the shape of a pecuniary fine, and in default of pay- ment thereof, with imprisonment, we shall be justi- fied in saying that the act specified is criminal ; and why so? Because imprisonment is in contempla- tion of law a most severe punishment, for the law esteems highly the liberty of the subject, and so, from the nature of the punishment, we may infer the character and quality of the act to which it is annexed.^'' The answer to the question put — what sort of act is criminal ? — cannot assuredly be regulated by reference to queries such as these. Is it summarily punishable ? Is it a misdemeanor? Is it a felony ? As regards the first of these queries, although very many cases are summarily disposed of by a single magistrate, or at petty sessions, with a view to economizing time and money, yet they are dealt with in accordance with the principles of law ob- served at quarter sessions and the assizes ; and an act may in its nature be criminal though not indict- A CRIME— WHAT IT IS. 215 able. Then as regards tlie second and third of the queries suggested, the distinction between felonies and misdemeanors is very arbitrary, and can afford no clue for determining whether an act charged to be an indictable oifense h pei' se criminal. 164. In order to determine with certainty, irre- spective of the general test above indicated, the nature of a crime, we must search for the ingredi- ents in it, and we shall find that a crime is consti- tuted by an overt act done with a guilty intent, or includes a guilty mind, knowledge, or possession, affecting or prejudicing the public. These ingredi- ents in crime will be commented on in due order. 165. The nature of an overt act, criminal and punishable, will be exemplified in almost every page of this chaj)ter ; the persuading an apprentice to embezzle his master's goods would be an act cog- nizable by tlie law,^""^ and any such act must gener- ally be proved in the Crown Court, as at Nisi Prius. Be it observed, however, in limine^ that al- though a fact must be established by the same proofs in criminal as in civil procedure, the legal inference deducible from a fact proved at Nisi Pi'ius may be quite different from the inference deducible from the same fact evidenced in a criminal prose- cution. Thus the fact that A. was agent for B. must be 210 THK I'HFLOSOrilY OF LAW. j)i'()V('(l l)y like ('\ idciico at a criminal as at a civil tj'ial, ])ut it will not follow that B. will incur crim- inal responsibility for the act of A. because he might be civilly answerable for it. The mode of proof is one thing, the effect of the evidence is another. If a man employs an agent for a perfectly legal purpose, and his agent does an illegal act, that act does not affect the principal, unless it is shown that the principal directed the agent so to act, or really meant he should so act, or afterwards ratified the illegal act, or unless it be show^n that the prin- cipal appointed one to be his general agent to do both legal and illegal acts.^^^ If, however, a person, though resident abroad, do, through the medium of an agent, an act in this country here punishable, the principal so offending might be made answerable to our laws should he come afterwards within their reach. A master, as we have seen, is civilly answerable for the negligent act of his servant causing bodily hurt to complainant, if the servant, Avhen guilty of the breach of duty imputed, was acting in the ser- vice of the master, and in the course of his regular and accustomed duty (Art. 75). In such a case, if the death of the injured person ensued, the servant micrht be indictable for manslauij^hter, but the mas- ter could not be made criminally answerable, A CRIME— WHAT IT IS. 217 because there would be no felonious or criminal intent proved as against him ; unless, indeed, the master ordered his servant to do the particular act, or to do something which naturally caused the death, or unless the master could be brought within the definition of an "accessory before the fact" — i. (?., one who, being absent at the time of the par- ticular felony committed, did procure, counsel, com- mand, or abet another to commit it. If the driver of a coach maliciously upsets it, and so causes hurt to a passenger, the coach propri- etor being at the time absent, this latter party may nevertheless be civilly liable for the damage caused, and though the servant might expose himself to an indictment, the master would not be criminally responsible. Here an express statutory provision (24 y iiicflit breaketh and entereth into n mansion house, or, we may say, " dwelliug-liouse," nitli intent to commit a felony. In defining the word "dwelling-house," we are aided by the Legislature (24 cfc 25 Vict. c. 90, s. 53), it being enacted that " no building, although within the same curtilage with any dwelling-house, and oc- cupied therewith, shall be deemed to be part of sucli dwelling-house" for any of the purposes of the act, unless there be " a communication between such building and dwelling-house either immediate or by means of a covered and inclosed passage lead- ins: from the one to the other." So in recjard to "nighttime" occurring in Lord Coke's definition, the practitioner is again assisted by the Legislature, which, for the purposes of the act just cited, enacts (s. 1), that the night shall be deemed to commence at nine o'clock in the evening, and to terminate at six o'clock in the succeeding day. Let us next notice the form of the indictment for burglary, prefacing that the charges contained in it may be of breaking and entering with intent to commit a felony, or may, in addition to this, allege that an actual felony w^as committed ; whether the felony be such at common law or by statute matters not, neither does it signify what felony it be. A CRIME— WHAT IT IS. 241 thougli in practice the felony contemplated or com- mitted is almost always larceny. The indictment then charges that the accused, " the d»welling-honse of A., situate at [such a place], feloniously and burglariously did break and enter, with intent the goods and chattels of one B., in the said dwelling- house then being, feloniously and burglariously to steal, take and carry away, and then in the said dwelling-house [such and such things] of the goods and chattels of the said B., of the value of [£5], in the said dwellino;- house then beino; found, feloni- ously and burglariously did steal, take and carry away," &c. In this indictment the word "burglariously" must apj^ear: it is a technical word, known to our customary law, for which no other expression may be substituted. To the words "break and enter" an extended significance has been given by the Legishiture ; for in virtue of the 51st section of the larceny act (24 & 25 Vict. c. 96), the entry may be before the breaking as well as after it. " Whosoever shall enter the dwellino:-house of another with intent to commit any felony therein, or being in such dwell- ing-house shall commit any felony therein, and shall, in either case, break out of the said dwelling- house in the night, shall be deemed guilty of burg- le 242 THK rillF.OSOI'IlY OF LAW. lary." We thus perceive tliat the common law definition of l)urglary given by Lord Coke must now be considered amplified and altered ; a class of offenders not less dangerous than burglars, as de- fined by him, having been brought within reach of the punishment ensuing on a conviction for this crime ; the breaking out of the dwelling-house must, however, to satisfy the statutory words, be in the night time. What, in the next place, is a " breaking" and an "enterino;" — words contained in the indictment for burglary ? To satisfy the word " break," tliere must in general be, not a mere legal trespass, as by pass- ing over an invisible boundary, but a suljstantive and forcible irruption. If a person leaves his house door or his window open, and a man enters thereby, this is no burglary, because the word '' break " in the indictment is not satisfied — the householder has but his own folly and negligence to blame. Yet to a case such as specified, a clause in the lai'ceny act"^^ might be applicable, under which any person found bv nisfht in a dwellino'-house with intent to commit a felony therein, is guilty of a misdemeanor, and may be punished even with penal servitude. In support of an indictment for biu'glary very slight 2:)roof of a breaking may sufBce — tlie lifting up of the latch of a door or the sash of a window A CRIME— WHAT IT IS. 243 will do so.^'^' And competent authorities afBrm that an entry into a house effected down a chimney- is sufficient, for the mode of access is ae much closed as the nature of things will permit. . As to the entry, little difficulty can be felt — the stepping over the threshold of a house, or the put- ting the hand in at a window to extract goods, may constitute a burglarious entry. Lastly, on a trial for l)urglary, doubt cannot in general be felt by a jury as to the intent. If an actual felony, no matter what, was committed in the house, an intent to commit that, or some other specified felony, may be presumed, the ordinary in- centive to burglary being the larcenous taking of goods and chattels. It may, however, chance that although the entire charge contained in the indictment has not been made out, some substantive portion of it, sepa- rable as it were from the rest, has been established. What, then, is the course to be punsued ? The charge exhibited in the indictment for burglary is, in truth, composite ; and if, on the trial of an in- dictment for this felony, charging the commission of theft, the proofs for the crown have failed to show that the breaking and entry were in the night time, but have sufficed to show that there was a breakincr and entry, and that goods, say to the value of £5, 244 THE riiiLOSOPHT of law. were stolen, a conviction for house-breaking niiglit ensue. If the proofs failed to show the l)reaking and entering, a conviction for stealing in a dwelling- house to the amount of £5 might be had. If the fact of a breaking and that of an entiy were estab*- lished, but no actual larceny were shown to have been committed, a conviction might be had for breaking and enterins; the dwellini?-house with intent to commit a felony therein. The discretionary power thus given to a jury may be beneficially exercised to prevent justice from being for a time defeated, and to save delay and expense in administering it. 185. The offense of sim2:)le larceny consists in the taking and carrying away of the chattel prop- erty of another with a felonious intent to convert it to the taker's own use, or to deprive the owner per- manently of it. The indictment for this oflense charges that the prisoner such and such of the goods and chattels of the prosecutor "feloniously did steal, take and carry away," and the proofs for the crown on a trial for simple larceny must estab- lish: (1) a taking; (2) a felonious intent; (3) a carrying away, technically termed an " asportation." (1) To constitute larceny at common law there must be a taking — a manual assumption of the chat- tel in question — against the will of its owner ; there must be an act of trespass, so that, if a person ac- A CRIME— WHAT IT IS. 245 ciised of stealing were guilty of no trespass in tak- ing the goods, he could not be guilty of felony in carrying them away ; and again, to support a charge of larceny the 2:)rosecutor must have had such a possession of the thing taken as would kave enabled him to maintain an action of trespass against one who took it without a felonious intent. By our common law, then, a chattel alleged to have been stolen must have been obtained ao-ainst the will of its owner. Where a chattel had been bailed to another, or where it had passed to him under and in pursuance of a contract, wherever in- deed the property alleged to have been stolen came into the hands of the accused rightfully in the first instance, and without any animus furandi, a sub- sequent wrongful appropriation of the chattel could not, at common law, have constituted larceny. If A. lends B. a horse, or sends goods by a carrier, and the bailee in either case makes off with them, this is at common law no larceny. But if, in the latter case, the bale of goods be opened and a portion of them be thence wrongfully abstracted, or if the con- veyance of the goods be fully accomplished, and they are afterwards tortiously converted, the case is different, inasmuch as the bailment was determined by the tortious act, or by performance of the trust. 24:6 tup: riin.nsoniy ok i,a\\'. so tliat a constructive possession became thus re- vested in the bailor. The law in regard to larceny by a bailee has been amended by various sections of the larceny act (24 tfe 25 Vict. c. 9G), from amongst which refer- ence may especially be made to sect. 3, enacting that whosoever " being a })ailee of any chattel, money, or valuable security, shall fraudulently take or convert the same to his own use, or the use of any person other than the owner thereof, though he shall not break bulk or otherwise determine the bailment, shall be guilty of larceny." This section, accordingly, gets rid of the technical difficulties in the way of convicting a bailee of larceny at com- mon law resulting from the theory that larceny in- volves a trespass, a taking ; and that where goods had passed to the bailee with the bailor's consent, there was no evidence of a taking. Even at com- mon law, however, fraud practiced by the accused person might so operate as to nullify the apparent consent of the owner to parting with the property in tis goods. For instance, if the prosecutor had been tricked out of the possession of a thing, and had no intention of parting with the property in it, if the transaction which would naturally have ter- minated in a transfer of such property were incom- plete, the accused going away with the chattel and A CRIME— WHAT IT IS. 2i7 appropriating it to his own use, might be convicted of larceny.^^*^ (2) To constitute larceny at common law, a felonious intent must accompany the taking, " felo- nious " being a technical word applicable in early times to offenses which, with few exceptions, were capitally punishable, and a conviction for which en- tailed forfeiture (Art. 158). At the present day, our criminal law havino; been consolidated and amended, misdemeanors, some of them raore serious and more severely visited than many felonies, have been de- fined or created by the Legislature. A felony being deemed a very heinous crime, the presumption of law was under certain circumstances strongly in favor of one accused of it. Our law, indeed, always presumes that a person charged with having done a criminal act is innocent until the con- trary be proved ; and sometimes it does not allow of evidence to counteract this presumption. A married woman stealing in the presence of her hus- band is presumed to do so under his coercion, though facts of rare occurrence might be received to prove her guilt. It is a presumption of law that an infant within the age of seven years cannot con- ceive a felonious intent, and no evidence of pre- cocity would avail by way of answer to this pre- sumption. If, however, an infant between the age 248 TIIJ; I'lIII.OSOI'IlV OF LAW. of seven and that of fifteen years commits felony, the presuinptiun of law, altliougli in his fiivor, may be rebutted by evidence of malice or of a mischiev- ous discretion. Regard being had to this component ingredient — a felonious intent — in the crime of larceny, an indictment charging it, could not be founded on a mere careless taking away of another's goods, for to constitute larceny, there must be an intent to " steal," — a technical word indicative of the offense, and indispensable in the indictment — which in- volves a knowledge that the property taken does not belong to the taker; and if all the fiicts con- cernins: the title to a chattel are known to the accused, so that it becomes a pure question of law whether the property in it is his or not, still he may show that he honestly thought it his through a misapprehension of law. And hence into the definition of larceny is sometimes introduced this condition — that the taking must not be justified by any color of title, nor be made in the assertion of a right. For although ignorance of our criminal code could not be set up successfully in answer to a charge of larceny, ignorance of the law of property might be relied upon to give an innocent color and complexion to a taking which, if unexplained, migflit seem to be larcenous and felonious. A CRIME— WHAT IT IS. 2i9 It will, tlierefore, be the duty of counsel for tlie prisoner on a trial for larceny — the fact of the taking being proved — to contend, should there be a particle of evidence in support of such contention, that the taking was not felonious, that it occurred throufrh mistake or carelessness, or in assertion of a right, or with intent to restore the thing taken, after it had served some casual purpose, to its lawful owner. Counsel for the defense may also perhaps suc- cessfully contend, where the thing alleged to have been stolen was originally bailed to the prisoner, that there was no taking of it, and nothing done to satisfy the statutory provision already cited as sometimes applicable in such a case. Recently a person was indicted for larceny as bailee of a coat. The evidence showed that the prosecutor had lent the coat to the prisoner to wear for a day, and some few days afterwards the prisoner was found wear- ing' the coat on board a vessel bound for Australia. It was held that no proof appeared of a conversion sufficient to satisfy the statute, for " the determina- tion of the bailment must be something analogous to larceny, and some act must be done inconsistent with the purposes of the l^ailment." ^^^ (3) Further, to constitute the crime of larceny, the thing in question must have been carried away, 2r)0 TIIK I'llll.OSnl'lIV OF LAW. or, ill tccluiical language, there must liavo l)C!en au asportation of it l)y tlic ])i-isoii(;i-. Al)out this, how- ever, there can in general be little difficulty, for a bare removal of the chattel from the place in which he found it, though the thief does not quite make off with it, is a sufficient asportation to satisfy the law word '■'■ mportcmiV formerly used in the indict- ment for larceny. If a man be leading another's horse out of a field, and l)e apprehended in the fact, or if a miest stealing eroods out of an inn has re- moved them fi'om his chamber down stairs, either proof would suffice to sustain the allegation of aspoi'tavit. Such being the main ingredients in larceny, the reader will note that this particular offense has, more than any other known to and originally con- stituted by our unwritten law, been affected by legislative intervention. Of choses in action (Art. 30) or valuable securities, of deeds relating to land, of wills or records, of things affixed to the fi-eehold, or trees growing upon and so parcel of it, of ani- mals /6;w naturcB (Art. 198), and some other things, larceny could not at common law have been com- mitted. It could only have been committed of "chattel" property, and to this expression our com- mon law assigned a strict and technical significance which excluded the things sj^ecified. Now, how- A CRIME— WHAT IT IS. 251 ever, larceny may be committed of such things in virtue of the statute law. ^^ 186. Of crimes involving force, mentioned in the four preceding articles, each is allied to other crim- inal acts more or less serious in degree. To felonious homicide an assault, aggi'avated or slight, is akin. An assault cannot be where there was consent by the person alleged to have been assaulted, and difficulty has been felt in determinins: what is consent. Recently, upon the facts in evi- dence, it was observed jper judicem : " There is no consent, though there is no active dissent," and a conviction was upheld upon this distinction.^^ With robbery and burglary divers criminal acts are closely connected, respecting which special pro- visions may be found in the statute book,^"^ In part these pro\nsions affix, to offenses long previ- ously recognized, specific penalties, in ])i\vt they alter the pre-existing law, or reproduce enactments which had force prior to the year 1861, and at all events, out of such comjDosite materials — the common, un- written law, pre-existent statutes and altogether novel ingredients — they consolidate that depart- ment of criminal law which concerns larcenous offenses against the person or dwelling-house. A mere trespass upon land is not per se indict- able (x\rt. 12), though it may be punishable if 252 TiiK Tini-osopiiv of law. iiiiiK'(l at tlic ofrcctiiii^ of a certain ol)ject, f>r if accompanied by a particular volition or intent; and where any such act by statute entails penal conse- quences, the significance of words indicating tlie quality of the act must be satisfied l)y proofs before a conviction for it can be had. Ilecently a court of law was called on to decide whether a trespass had been " willful " within the meaning of an act of Par- liament.^"^ Simple larceny may, as we have seen, be in- cluded in a crime of greater magnitude, or, as we shall presently see (Art. 190), may with difficulty be distinguishable from one or other of certain criminal acts which do not at common law in- volve the element of force, actual or constructive. Aggravated larceny may be exemplified by refer- ence to the 67th section of the larceny act (24 & 25 Vict. c. 96), which enacts that "whosoever, being a clerk or servant, or being employed for the pur- pose or in the capacity of a clerk or servant, shall steal any chattel, money, or valuable security be- longing to or in the possession or power of his master or employer," shall be guilty of felony, and for the ofi:*ense thus defined a punishment is awarded more severe than for simple larceny. The nature of aggravated larceny may further l)e exem- plified by reference to the 69th section of the lar- A CRIME— WHAT IT IS. 253 ceny act, which affixes a punishmeut to tlie offense of stealing when committed by one employed in the public service of her majesty, or when committed by the police. 187. Criminal responsibility may be incurred by breach of duty or by omission to perform it. At a trial for manslaughter, it appeared that the relation of master and servant had subsisted between the prisoner and the deceased, and questions arose : Ist^ whether the want of proper nourishment and lodging, which the prisoner had neglected to supply to the deceased, was the cause of death ; and 2dly, if so, had there been a duty imposed on the pris- oner to supply the deceased with such necessaries ? It was held that tbe duty sjjecified had not been imposed, for the deceased was not shown to have been helplessly in the power of the accused and unable to withdraw from it. A conviction there- fore could not be had for the offense charsred.-'^^ It is noteworthy, however, that a statutory provision (24 y mistake for a shilling, the prop- erty in the sovereign not thus becoming vested in the cabman, and the question whether he was guilty of larceny in appropriating it depending upon \vhether the cabman at the time he took the sovereign was aware of the mistake, and had then the guilty intent to appropriate it — the animus furandi. 201. The distinction between the felony of lar- ceny and the misdemeanor of obtaining goods, money, or a valuable security by false pretenses, may be illustrated by reference to two well-known kinds of agency, a general and a special agency. Where a servant authorized generally to act for his master in his business is intnisted Avith his master's property, and being so intrusted is induced by fraud to part with it, the person guilty of the fraud might be convicted of obtaining the property by false pretenses, but would not be guilty of lar- ceny. Where, however, a servant is intrusted by his master with the possession of goods for a special purpose, and is tricked out of that possession by fraud, the person practicing the fraud is guilty of the crime of larcenv. LEGAL PRINCIPLES APPLIED TO CRIMES. 277 Now the ground of the distinction is this : in the first of these two cases there would be no evidence of a takino^ ao-ainst the will of the owner, the serv- ant having given up the property voluntarily, and meaning to part with it, and his act being the act of his principal. In the latter case the servant had no authority to part with the property in the goods except to fulfill the special purpose for which they were intrusted to him. and therefore there was no sur- rendering or giving up of the property by the mas- ter through his agent. There was no taking by the prisoner, no ideal element of force in what he did. Subtle as the above distinction may possibly be deemed, it has sometimes in connection with matters of practical importance come under judicial notice. The cashier of a bank is authorized generally to con- duct the business of the bank within his own par- ticular sphere of action, and to part witli its prop- erty on presentation of a genuine order from a cus- tomer, as to the genuineness of which he (the cashier) must judge. If being deceived by a forged order he parts with the money of the bank, he parts with the property in it as well as with the posses- sion of it. There is under such circumstances no evi- dence of a taking, nothing, therefore, to support an indictment for larceny as against a person obtaining 278 Tin: I'lin.osoriiv of law. the money by a forged clicck or ori:x. DAMAGES — co7itimic(l. ill respect to death caused by negligence, 173 eiseq. in an action for defamation, 191. for bodily hurt to plaintiff's servant, 208. DEED, how defined, 121. its peculiar efficacy, 120, 121. evidence in regard to, 121. when indispensable, 122. different kinds of, 123 et seq. a bond, 124-127. a covenant, 127 etseq. DOCK COMPANY, a duty which may be imposed on them, 27. DURESS, contract may be avoided by, 45. DUTY, the nature of a private, 27 et seq. ESTOPPEL, by deed, what it is, 120. EVIDENCE of contract, when it must be in writing, 96 el seq. of negligence, 140, 170-174, 179. in action against innkeeper, 179 ei seq. in action for defamation, 190. fraud causing damage, 194. in special cases founded upon tort, 198 et seq. verbal or written contract, 98, 101. in criminal procedure, 215, 218. of criminal intention, 225 et seq. of guilty knowledge, 227, 231. of guilty possession, 228-230, 233. on prosecution for felonious homicide, 234-236. on a charge of robbery, 237, 239. on a prosecution for burglary, 242, 243. on a charge of larceny, 249. INDEX. 299 FALSE PRETENSES. See Cheating ; Larceny. FELONY, merger of right of action in, 207. presumption in favor of married wo"man accused of, 247. infant accused of, 247. FINALITY in litigation is aimed at, 118. in action fpr tort, 106. doctrine of, in criminal procedure, 265, 266. FINDER OF LOST PROPERTY, his right to it, 210. FORBEARANCE TO SUE may be a consideration for promise, 38. FORGERY of name to promissory note, its effect, 48. check, its effect, 136. FRAUD. See Cheating. directed against an individual, 27. the public, 28. distinction between public and private, 28-30. definition of, 59. effect of on conti-act, 59. why evidence is admissible of, 64. liability of principal for fraud of agent, 89. distinction between moral and legal, 90. effect of, in effecting policy of insurance, 139. in the formation of a company, 192. how, often established at Nisi Prius, 194. may render an act indictable, 262. FRAUDS. See Statute of. GOODS, liability of carrier for loss of, 57. action for detention of, 154. liability of innkeeper for loss of, 179 ei seq. malice in disparaging, 187. right of finder to, 210. 300 INDEX. GUARANTY, nature of it, 75, 103, reliition between the parties to, 101-104. is it continuing or limited as regards time? 105. good Ikith must be observed in, 106. effect of alteration of conditions of suretyship, 106, 107, 135. GUILTY KNOWLEDGE may be an ingredient in crime, 222, 228. evidence of, 231. GUILTY MIND may be an ingredient in crime, 222. evidence of, 223 et seq. GUILTY POSSESSION may be an ingredient in crime, 228, 231. proof of, 229, 232. HIGHWAY, procedure for obstruction of, or nuisance on, 26, 254. HOMICIDE. See Manslaughter ; Murder. HORSE, breach of "warranty of, 51, 62. damage to when let on hire, 155. action for damage caused by unruly, 204. indictment for turning out vicious horse on com- mon, 267. HUSBAND AND WIFE. >See Married Woman. ILLEGALITY may vitiate a contract, 62, 92. why evidence is admissible of, 64. a bond may be avoided by, 125. IMPLIED CONTRACT, what it is, 48, 50. instances of, 49 et seq., 144. in charter party, 75. when performance of work is tendered for, 79. INDEX. 301 IMPLIED CONTRACT— condnued. giving authority to master of ship, 80. in the case of a deed, 128, 130. INDICTMENT, how to be framed in certain cases, 220. what it is, 221. INDORSEMENT, liability on, 60. forged, on check, 136, 139. INFANT, contract by, its nature, 45. presumption in favor of, when charged with felony, 248. INNKEEPER, liability of to traveler, 180 et seq. INSURANCE, cases as to policy of life, 21, 139-143. INTENTION OF CONTRACTING PARTIES should, if possible, be carried out, 75, 128, 144. JOINT STOCK COMPANY, contracts by promoters or directors of, 46, 48. JUDGE, his duty in construing a statute, 19. of appellate court, his duty, 22, JUSTICES OF THE PEACE, effect of conviction by them for an assault, 279. LARCENY, simple, how defined, 244. how constituted, 244-250. evidence on prosecution for, 249. how distinguished from obtaining money, &c., by false pretenses, 203, 264, 270. for stealing a lamb, 270, 271. dead rabbits, 273. money from post-office savings' bank, 274. bank, 277. 302 INDEX. LAW MEllCIIANT, what it is, 68, LEGAL PRINCIPLES, how applied to contracts, 133 et seq. introductory remarks, 133. applied to the contract of suretyship, 134. forged check, 130. a life policy, 139. how applied to torts, 198 et seq. applied to crimes, 207 et seq. introductory remarks, 207. negligence in turning out vicious horse on common, 267. to maliciously wounding, 268. damaging property, 269. breaking window, 2o9. how applied in case of death caused by fire-works, 270. for stealing a lamb, 270. LEGAL SCIENCE, what it concerns itself with, 17. necessitates use of technical terms, 35. LENDER OF CHATTEL, responsibility of, 204. LIBEL, malice is an ingredient in action for, 189. is indictable, 201. LIFE POLICY. See Policy of Life Insurance. LIMITATION of action, 118, 196. doctrine of, in criminal procedure, 200. LIQUIDATED DAMAGES, what they are, 58. LOST CHATTEL, right of finder to, 210. LUNATIC, contract by, its nature, 45. MALICE, in disparaging plaintiif 's goods, 187. INDEX. 303 MALICE — continued. in an action for defamation, 189. is often an ingredient in crime, 256 et seq. may be expressed or implied, 256, 259. MALICIOUS PROSECUTION, 189. MANSLAUGHTER, how defined, 234. for not supplying servant with necessaries, 253. for turning out vicious horse on common, 267. for causing death by fire-works, 267. MARINE INSURANCE, good faith must be observed in, 89. MARRIED WOMAN, contract by, its nature, 45. presumption in favor of, when charged with stealing, 247. MASTER AND SERVANT, contract between, its nature, 50, 69. master when justified in discharging servant, 70. liability of master for bodily hurt to servant, 83, 84. damages payable to master for bodily hurt to servant, 208. master, when not criminally answerable for act of serv- ant, 216, 217. criminal liability of master for not supplying servant with necessaries, 253. MERCANTILE CONTRACT, what it is, 68. ingredients in, 69 et seq. how far governed by intention of parties to, 75. may be vitiated by fraud, 87-92. illegality, 92-95. general remarks as to, 95. legal principles applied to, 134-152. MERCANTILE USAGE, sreat weight is allowed to, 81. how it may operate on a contract, 81-87. by affixing a meaning to it, 82. by adding a term to it, 83. 304 INDEX. MERCANTILE USAGE— coH/mwct/. how it niiiy ojxTate \>y its inlici-ont authority, 85. contracts required to be in writing, by, 42, 100. MERGER of simple contract in deed, 120. MISREPRESENTATION as to solvency of person, 107-109. MONEY paid by mistake may be recovered, 39, 40. MURDER, how defined, 234. evidence at trial for, 234-236. MUTUALITY, nature and want of, exemplified, 75, 103. NEGLIGENCE. proof of, in action against railway company, 148. how constituted, 169, 170. proof of, 170. contributory, 147, 171. action for death caused by, 173. liability of innkeeper for, 179 ei seq. when indictable, 254, 255, 267, 270. by agister of a horse, 198. in not repairing fence, 202. in owner of an unruly horse, 204. causing death of servant, 209. NUDUM PACTUM, what it is, 38. NUISANCE, when indictable, 31, 254. actionable. 31, 166. may sometimes be abated or put a stop to, 33. PARTNER, liability of for fraud of copartner, 91. PATENT, infringement of is actionable, 156. PENAL STATUTE must be construed strictly, 221. INDEX. 306 POLICY OF LIFE INSURANCE, cases as to, 21, 139, 142. effect of fraud in regard to, 139-143. POLICY OF MARINE INSURANCE, ' good, faith must be observed in, 89, PRESUMPTION OF LAW, how affected by intention of parties, 79. PRINCIPAL AND AGENT, liability of principal for fraud of agent, 89, 92. PRINCIPAL AND SURETY, relation between, 101-104. PRINCIPLES regulate and govern our law, 23. are sometimes modified, 23. legal, applied to contracts, 133-152. torts, 197. crimes, 267 et sea. PRIVITY, what it is, 35. instances of want of, 36, 40, 41, 42, 46-48. in a mercantile contract illustrated, 72-75. PROMISE is an ingredient in a contract, 36. when not implied by law, 39, 40. is an ingredient in a mercantile contract, 72. PROMISSORY NOTE, forgery of name to, its effect, 48. PUBLIC POLICY, contract may be void as opposed to, 65, 127. RAILWAY COMPANY, action against for loss of train, 146. personal hurt, 147, 148, 150. duty of passenger towards, 149, 151. RATIFICATION, what it is, 35, 46. doctrine of, how applicable in a case of tort, 195. in criminal law, 265. 20 306 INDEX. RECEIVING STOLEN GOODS, evidence of, 2(54. REQUEST is an ingredient in a contract, 36. RESCISSION OF CONTRACT, when allowed, 52,54,61,71. in case of sale of goods, 77, 78, 88. RESTRAINT OF TRADE, contract void as in, 65. ROBBERY, how defined, 237. ingredients in this offense, 237. evidence on trial for, 238. SALE OF GOODS, privity in contract respecting, 72-75. when performance of contract for, becomes impossible, 77. when contract for may be rescinded, 77, 78,88. contract for, how affected by usage, 81. how regulated at common law, 109. by statute, 110 e^ seq., 117, 118. by auction, 113. statute of limitations, how it operates in this case, 118. SIMPLE CONTRACT. See Contract. what it is, 35 et seq. SIMPLE LARCENY. See Larceny. SLANDER, ingredients in right of action for, 189. SOLICITOR, duty imposed on by his retainer, 51. STATUTE, act done in evasion of, 93. STATUTE OF FRAUDS, provisions of, as to guaranties, 101. sale of goods, 110, 113. effect of disregarding its provisions, 113-116. how extended by a more recent statute, 117. INDEX. 307 STATUTE OF LIMITATIONS, its effect, 118,119. STATUTES, sometimes declare the law, 18. * how interpreted, 19. STATUTORY PROVISIONS add to the unwritten law, 18. SURETYSHIP, the contract of, 75, 301 et seq. exemplified, 134-136. TORT, what it is, 153. may consist in the invasion of a right, 153. instances of such a, 153-157. may be founded on breach of duty causing damage, 158 et seq. negligence causing damage, 1(59. may consist in a malicious act causing damage, 186-192. fraud causing damage, 192-194. instances of, 198 et seq. TRESPASS to land, 25, 154, 251. USAGE. See Mercantile Usage. VOTING CHARITIES, case as to, 66. WARRANTY of soundness of horse, effect of breach of, 51, 62. WRITTEN INSTRUMENTS, how classified, 96. contracts in writing, but not required to be so, 96-99. required to be in writing, 99-120. under what statutes, 100. a guaranty, 101. relation between parties to, 101-104. UNIVERSITY OF (ALIFORMA LIBRARY Los Angcli-<< This book is DUE on the last date stainiKcl IkIow. 1 5Sl mn^ ju. - '^-3^ M ^ *■» WB17196, W)6 \ 1967 • SEP 1 s pQj ^^'■29/983 - oTOl* OCT 2 4 1984 Form L9-Series 444 LA-Young Research Library 1 K50.J92 B79 | li i; y 1 II! ' 1 1 11!| 111 )09 501 583 K J92B79 ;;O^Ji■ MRRARr FAT AA 001 3054143 U»!i.^ I, ■I ^1 p ra-j'-'''