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expressed nothing more than a vague intention, although it would have been binding had it referred to the specific sum then standing in the will, so as to fix that sum as a minimum to be expected at all events.

"He expressly promises such provision only as he in his will and pleasure shall think fit. If, on her marriage, the testator had said, 'I will give to my child a proper and sufficient provision,' the Court might ascertain the amount; but if the testator had said, 'I will give to my child such a provision as I shall choose,' would it be proper for the Court (if he gave nothing) to say what he ought to have given ?"

ceptance

7. Conduct which is relied on as constituting the Tacit acacceptance of a contract must (no less than words relied of contract on for the same purpose) be unambiguous and uncon- must be ditional (a).

unambi

guous.

Where the proposal itself is not express, then it must Cases of also be shown that the conduct relied on as conveying the conditions proposal was such as to amount to a communication to on tickets. the other party of the proposer's intention. Difficult. questions may arise on this point, and in particular have arisen in cases where public companies entering into contracts for the carriage or custody of goods have sought to limit their liability by special conditions printed on a ticket delivered to the passenger or depositor at the time. of making the contract. The tendency of the earlier cases on the subject is to hold that (apart from the statutory restrictions of the Railway and Canal Traffic Act, 1854, which do not apply to contracts with steamship companies, nor to contracts with railway companies for the mere custody as distinguished from the carriage of goods) such conditions are binding. A strong opposite tendency is shown in Henderson v. Stevenson (b), where the House of Lords decided that in the case of a passenger travelling

(a) Warner v. Willington, 3 Drew. 523, 533.

(b) L. R. 2 Sc. & D. 470. Lord Chelmsford's and Lord Hatherley's dicta (pp. 477, 479) go farther, and

suggest that the contract is com-
plete before the ticket is delivered
at all, so that some other communi-
cation of the special terms would
have to be shown.

by sea with his luggage an indorsement on his ticket stating that the shipowners will not be liable for loss does not prevent him from recovering for loss caused by their negligence, unless it appears either that he knew and assented to the special terms, or at any rate that he knew there were some special terms and was content to accept them without examination. Since this there have been two reported cases arising out of the deposit of goods at a railway company's cloak-room in exchange for a ticket, on which were indorsed conditions limiting the amount of the company's liability (a). The result, as it stands at present, appears to be that it is a question of fact in each case whether the notice given by the company was reasonably sufficient to inform the depositor at the time of making the contract that the company intended to contract only on special terms. A person who, knowing this (b), enters into the contract, is then deemed to assent to the special terms; but this, again, is probably subject to an implied condition that the terms are relevant and reasonable. The whole subject, however, still remains by no means free from uncertainty.

(a) Harris v. G. W. R. Co. 1 Q. B. D. 515. Parker v. S. E. R. Co., Gabell v. S. E. R. Co., 2 C. P. D. 416, revg. in Parker's case the judgment of the C. P. Div. 1 C. P. D. 618. Compare Burke v. S. E. R. Co., 5 C. P. D. 1.

(b) Are reasonable means of knowledge equivalent to actual knowledge? It seems better on principle to say that actual knowledge may be inferred as a fact from reasonable means of knowledge, and inferred against the bare denial of the party whose interest it was not to know. This is one of the rules of evidence which are apt in particular departments to harden into rules of law. But "constructive notice," after being fostered to a monstrous growth by the Court of Chancery, is now in deserved discredit. Compare Ulpian's remarks on a fairly analo

gous case, D. 14. 3. de inst. act. 11. § 2, 3. De quo palam proscriptum fuerit, ne cum eo contrahatur, is praepositi loco non habetur.

Proscribere palam sic accipimus : claris literis, unde de plano recte legi possit, ante tabernam scilicet, vel ante eum locum, in quo negotiatio exercetur, non in loco remoto, sed in evidenti . . . Certe si quis dicat ignorasse se literas, vel non observasse quod propositum erat, cum multi legerent, cumque palam esset propositum, non audietur. One cannot help observing that before the recent cases on the subject the conditions printed by railway companies on their tickets, and the corresponding notices exhibited by them, were far from being "claris literis, unde de plano recte legi possit," or "in loco evidenti."

The ordinary rules of proposal and acceptance do not As to promises apply, as we said at the beginning of this chapter, to by deed. promises made by deed. It is established by a series of authorities which appear to be confirmed by the ratio decidendi of Xenos v. Wickham (a), in the House of Lords (though perhaps the doctrine was not necessary for the decision itself), that a promise so made is at once operative without regard to the other party's acceptance. It creates an obligation which whenever it comes to his knowledge affords a cause of action without any other signification of his assent, and in the meanwhile it is. irrevocable. Nearly all the cases, it is true, were on instruments involving matter of conveyance as well as of contract. But no distinction is made or suggested on that ground. The general principles of contract are, however, respected to this extent, that if the promisee refuses his assent when the promise comes to his knowledge the contract is avoided.

"If A. make an obligation to B., and deliver it to C. to the use of B., this is the deed of A. presently; but if C. offers it to B., then B. may refuse it in pais" (i. e. without formality) "and thereby the obligation will lose its force." (b).

(a) L. R. 2 H. L. 296. The previous cases were Doe d. Garnons v. Knight, 5 B. & C. 671 (a mortgage), Exton v. Scott, 6 Sim. 31, the like, Hall v. Palmer, 13 L. J. Ch. 352 (bond to secure annuity after obligor's death), Fletcher v. Fletcher, 14 L. J. Ch. 66 (covenant for settlement to be made by executors). As to Xenos v. Wickham, that case might have been decided on the ground

that the company's execution of the
policy was the acceptance of the
plaintiffs' proposal, and the plaintiffs'
broker was their agent to receive
communication of the acceptance.
But that ground is distinctly not
relied upon in the opinions of the
Lords: see at pp. 320, 323.

(b) Butler and Baker's case, 3 Co.
Rep. 26, quoted by Blackburn J.,
L. R. 2 H. L. at p. 312.

CHAPTER II.

CAPACITY OF PARTIES.

Variations ALL statements about legal capacities and duties are in personal taken, unless the contrary be expressed, to be made with

capacity.

Disabili

ties of natural persons: Infancy.

Coverture.

Insanity,

etc.

reference to "lawful men," citizens, that is, who are not in any manner unqualified or disqualified for the full exercise of a citizen's normal rights. There are several ways in which persons may be or become incapable, wholly or partially, of doing acts in the law, and among other things of becoming parties to a binding contract. All persons must attain a certain age before they are admitted to full freedom of action and disposition of their property. This is but a necessary recognition of the actual conditions of man's life. The age of majority, however, has to be fixed at some point of time by positive law. By English law it is fixed at twenty-one years; and every one under that age is called an infant (Co. Lit. 171 b).

Every woman who marries has to sustain, as incident to her new status, technically called coverture, a loss of legal capacity in various respects; a loss expressed, and once supposed to be sufficiently explained, by the fiction that husband and wife are one person.

Both men and women may lose their legal capacity, permanently or for a time, by an actual loss of reason. This we call insanity when it is the result of established mental disease, intoxication when it is the transient effect of drink or narcotics. Similar consequences, again, may be attached by provisions of positive law to conviction for

criminal offences. Deprivation of civil rights also may be, and has been in England in some particular cases, a substantive penalty; but it is not thus used in any part of our law now in practical operation.

"Extension

On the other hand, the capacity of the "lawful man of natural receives a vast extension in its application, while it re- capacity : mains unaltered in kind, by the institution of agency, agency. One man may empower another to perform acts in the law for him and acquire rights and duties on his behalf. By agency the individual's legal personality is multiplied in space, as by succession it is continued in time. The thing is now so familiar that it is not easy to realize its importance, or the magnitude of the step taken by legal theory and practice in its full recognition. We may be helped to this if we remember that in the Roman system there is no law of agency as we understand it. The slave, who did much of what is now done by free servants and agents, was regarded as a mere instrument of acquisition for his owner, except in the special classes of cases in which either slaves or freemen might be in a position analogous, but not fully equivalent, to that of a modern agent. As between the principal and his agent, agency is a special kind of contract. But it differs from other kinds of contract in that its legal consequences are not exhausted by performance. Its object is not merely the doing of specified things, but the creation of new and active legal relations between the principal and third persons. Hence it may fitly have its place among the conditions of contract in general, though the mutual duties of principal and agent belong rather to the treatment of agency as a species of contract.

While the individual citizen's powers are thus extended Artificial by agency, a great increase of legal scope and safety is persons. given to the conjoint action of many by their association in a corporate body or artificial person. The development of corporate action presupposes a developed law of agency,

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