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A. could not be maintained. (j) So, also, where a lessee in insolvent circumstances suffered another person to become the apparent owner of the farm, but with a secret trust for himself, and the landlord, supposing the trustee to be the rightful owner, and trusting to his solvency, entered into a contract with him to grant him a new lease-in a suit by the original lessee against the landlord, specific performance of this contract was refused, the court considering that the landlord had entered into it expecting to have the covenants of a man of substance, which he could not do, as there would be no equity to compel the trustee to enter into the covenants. () And so again, if a landlord trusts to the skill of a person who is in fact a secret trustee, he will not be obliged to execute the contract for the cestui que trust.(1)

§ 205. How far, in the case of an ordinary contract for a lease, the intended lessor relies on the solvency of the intended lessee as a personal qualification, is a point on which somewhat different views have been taken. (m)' But it appears to be now clear from the judgments of Lord Lyndhurst and Lord Chelmsford that such contracts are assignable and may be enforced by the assign. (n)

§ 206. Again, it is presumably clear that if A. owed B. £1,000 and B. then agreed to buy from A. an estate for £2,000, no assign of A. could sue B. for performance except upon the terms of giving B. the benefit of the set-off of £1,000. (0)

§ 207. Again, where, though the relation established by the contract may have in it nothing personal, some previous personal relation of favor, or otherwise, between the con

(j) Robson v. Drummond, 2 B. & Ad., 303. (O'Herlihy v. Hedges, 1 Sch. & Lef., 125. (S. C.; per Grant, M. R., in Featherston. angh v. Fenwick, 17 Ves., 313.

(m) Crosbie v. Tooke, Morgan v. Rhodes, Dowell v. Dew, supra, $200; Buckland v. Papillon, L. R. 1 Eq., 477, 2 Ch., 67. See,

also, Stocker v. Dean, 16 Beav., 161, where,
from the personal nature of acts to be done,
a right of pre-emption was held to be limited
to the life of the person who had to do them.
(n) 12 L. J. Ch., 164; id., 2 Ch., 71.
(0) Boulton v. Jones, 2 H. & N., 564.

1 In Illinois, a note payable in mason work is not assignable, so as to enable the assignee to maintain an action thereon in his own name. Ransom v. Jones, 1 Scam., 291. So where a person received the use and occupancy of a farm, during his parents' lives, from a town, with a promise to give a deed upon their decease, upon condition that he would support his father, mother and idiotic brother, the contract was held not to be assignable. Clinton v. Fly, 1 Fairf., 292. A parol license to be exercised upon the land of another, is a mere personal trust and confidence, and as such, cannot be assigned, although it may be binding as between the parties, it will not pass to the purchaser. Cowles v. Kidder, 4 Foster (N. H.), 394.

tracting parties has been a material motive to the contract, it can be enforced by that person only, and not by a concealed cestui que trust or principal or assign. This is illustrated by the case of Phillips v. Duke of Buckingham ;(p) a negotiation had been entered into between the plaintiff and the duke for the purchase of an estate by the plaintiff, which had gone off; the plaintiff then got the secretary of Lord Chancellor Nottingham to enter into a negotiation on his behalf, but pretending it to be for the lord chancellor, or his son the solicitor-general; the duke had several cases depending in chancery, and, wishing to oblige the lord chancellor, entered into articles; but on discovering who was the real purchaser, refused to complete; according to the report in Vernon, the plaintiff's bill was dismissed, and the case is considered an authority for the principle established by such dismissal; for, though it appears that specific performance was ultimately granted, it seems to have been only on payment by the plaintiff of the full value of the estate, being a sum greater than that originally agreed on,(7) Lord Thurlow showed an inclination to disregard these personal motives, considering it to be immaterial in a contract for an annuity, that the defendant was in fact a trustee for the son of the plaintiff, with whom he had refused to deal.(r) But Lord Eldon expressed dissatisfaction with that decision ;(s) and the law seems now to be that where one person is deceived as to the real party with whom he is contracting, and that deception either induces the contract or renders its terms more beneficial to the deceiving party, or more onerous to the deceived, or where it occasions any other loss or inconvenience to the deceived party, there the contract cannot be enforced against him; but that where none of these circumstances can be shown to follow from the deception, the contract may be enforced. (t)

§ 208. "Does error in regard to the person with whom I contract," asks Pothier, (u) "destroy the consent and annul the contract? I think that this question ought to be decided

(p) 1 Vern., 227. See, also, Harding v. Cox, id., n.

(9) See Raithby's note (quoting the Reg. Lib.) at p. 229 of vol. 1 of his edition of Vernon. And see the case in Vernon, 1 St. Leon. Vend., 349, n (10th ed.). See, also, Scott v. Langstaffe, cited Lofft., 797.

(r) Lord Irnham v. Child, 1 Bro. C. C., 92. See, also, Jordan v. Sawkins, 1 Ves. Jun., 402. (8) Bonnet v. Sadler, 14 Ves., 528. (t) Fellowes v. Gwydyr, 1 Sim., 63; 1 R. & My., 83.

(u) Traite des Obligations, § 19. See Smith v. Wheatcroft, L. R. 9 Ch. D., 223.

by a distinction. Whenever the consideration of the person with whom I am willing to contract enters as an element into the contract which I am willing to make, error with regard to the person destroys my consent, and consequently annuls the contract. * * * On the contrary where the consideration of the person with whom I thought I was contracting does not enter at all into the contract, and I should have been equally willing to make the contract with any person whomsoever as with him with whom I thought I was contracting, the contract ought to stand."

§ 209. The same principle, of course, applies to assignments. So where a contract for a lease was entered into by a lady with her son-in-law for his personal accommodation in the mansion house and demesne lands, in the nature of a family transaction, the court refused specific performance at the suit of his assignees in bankruptcy.(v)

§ 210. (2) Where the contract stipulates that the instrument to be executed in performance of it shall contain a proviso against assignment, this operates to prevent, not only an assignment of the interest when perfected, but also of the contract to grant it. (w) But the benefit of the proviso may, of course, be waived for the purposes of specific performance; as where the assign of the intended lessee was recognized by the intended lessor as tenant. (x)

§ 211. (3) The statute, 32 Henry VIII, ch. 9, which is entitled the bill of bracery and buying of titles, prohibits any person from selling or buying any pretended rights or titles to any lands, except the vendor has been in possession of the same, or of the reversion, or in receipt of the rents thereof, for a year before the sale; but it provides that it shall be lawful for the person in possession to buy in any pretended title. In Sharp v. Carter, (y) and Hitchens v. Landor, (2) pleas founded on this statute were allowed. In a case (a) before the court of common pleas, A. the owner of a term died in 1828, and B. his brother, who had previously been in possession of part of the premises, then took possession of the whole, and continued so until 1829, when

(v) Flood v. Finlay, 2 Ball & B., 9.

(0) Weatherall v. Geering, 12 Ves., 504; cf. Jalabert v. Duke of Chandos, 1 Eden, 372. (2) Dowell v. Dew, 1 Y. & C. C. C., 345; 12 L. J. Ch., 158.

(y) 3 P. Wms., 375.

(2) G. Coop., 34. See, also, Wall v. Stubbs,

1 Mad., 80; S. C., 2 V. & B., 354.

(a) Doe d. Williams v. Evans, 1 C. B., 717. See, also, per Montague, C. J., in Partridge v. Strange, Plowd., 88.

he died, leaving all his interest in the property to C., who thereupon entered and remained in undisputed possession until 1841, when D., a brother of A., the original termor, took out administration to him, and sold his interest in the property, as such administrator, for £10, the transaction. was held to be void both by the common law and under the statute. Wherever a contract gives rise to a pretended right or title to any lands and to nothing more, the assignment of such a contract would be within the statute.

§ 212. But a transfer of an expectancy is not within the mischief of the statute; for the sale of an expectancy is not an allegation of any present right or title, but of the possibility of one thereafter to exist. (b)

§ 213. The principle on which the statute of Henry VIII. is founded, and which gives rise to the doctrines of champerty and maintenance, namely, that persons ought not to be allowed to come in for the mere purpose of litigating rights which others are not disposed to enforce, applies to render void some cases of assignment which are not strictly within the above statute. Thus, whilst it is clearly lawful to assign a right at the time undisputed, and if, from circumstances afterwards discovered, a necessity arises for litigation against third parties, the assign may maintain his action; (c) yet it is as clearly against public policy to allow of the assignment of a mere naked right to bring an action for a matter in dispute. (d) On this ground the Irish court of chancery refused its assistance to enforce the performance of a contract by a person out of possession, to grant a present lease to a person who was at the time apprised that he could not obtain possession, except by a suit. (e)' "I do not hesitate to say," said Turner, L. J.,(ƒ) "that, in my opinion, the right to complain of a fraud is not a marketable commodity, and that if it appears that an agreement for purchase has been entered into for the purpose of acquiring

(b) Cook v. Field, 15 Q B., 460. (c) Wilson v. Short, 6 Ha., 366.

(d) Prosser v. Edmonds, 1 Y. & C. Ex., 481. With the distinction between this and the preceding case, compare the distinction between furnishing evidence for the recovery of property without a view to litigation, and furnishing evidence to maintain litigation (Sprye v. Porter, 7 El. & Bl., 58), and note

that the statement in the text does not apply to a trustee in bankruptcy. Seear v. Lawson, 15 Ch. D., 426.

(e) Bayly v. Tyrrell, 2 Ball & B., 358. In this case the lease to the plaintiff had been actually executed.

(f) In De Hoghton v. Money, L. R. 2 Ch., 169; affirming S. C, L. R 1 Eq., 154.

1 See Marshall v. Means, 12 Geo., 61.

such a right, the purchaser cannot call upon this court to enforce specific performance of the agreement. Such a transaction, if not in strictness amounting to maintenance, savors of it too much for this court to give its aid to enforce the agreement."

§ 214. Upon principles of public policy contracts by which railway or public companies seek to devolve business, or delegate powers, with which they are entrusted, on persons to whom the legislature has not entrusted them, and on whom it has not attached the same responsibilities that it has on the companies, are incapable of being enforced by a court of equity.(g)1

(g) Johnson v. Shrewsbury and Birmingham Railway Co., 3 De G. M. & G., 914; Beman v Rufford, 1 Sim. (N. S.), 550; S. C., 7 Rail. C., 48; Great Northern Railway Co. v. Eastern Counties Railway Co., 9 Ha., 306;

Winch v. Birkenhead, Lancashire and Cheshire Junction Railway Co., 5 De G. & Sm, 562; London, Brighton and South Coast Railway Co. v. London and South Western Railway Co., 4 De G. & J., 362.

1 Among those cases in which assignments will not be upheld either in equity or at law, as being against the principles of public policy, is the assignment of the commission of an officer in the army by way of mortgage. Collyer v. Falcore, 1 Turn. & Russ., 459. Neither is the full pay or half pay of an army or navy officer assignable, either by the party or by operation of law. Daves v. Duke of Marlborough, 1 Swanst. R., 79; McCarty v. Goold, 1 Bali & Beat, 387; Stone v. Littledale, 2 Anst. R., 533. But the claims of officers of the revolution for compensation for services, as promised by Virginia unpaid at the death of the officer, are assets, and assignable as other choses in action. Merriwether v. Herran, 8 B. Monr., 162. The same doctrine has been applied to the compensation granted to a public officer for the reduction of his emoluments, or the abolition of his office, who, by the terms of his grant, might be required to return to the public service. For in such a case the object of the government is to command a right to his future services, and to enable the party to perform the duties, with suitable means to support him." Wells v. Foster, 8 M. & W., 149. In like manner the profits of a public office would seem, upon a similar ground of public policy, not to be assignable. Hill v. Paul, 8 Clark & Fin., 295; Palmer v. Bate, 2 Bro. & Bing., 673. In reference to pensions which are held to be assignable, see Story's Eq. Jur., § 1040. The salary of the assistant parliamentary counsel for the treasury has been held not to be assignable. Cooper v. Reilly, 2 Sim. R., 560. But the grounds upon which the decision rested are the subjects of considerable doubt, and it is a much mooted question "whether a compensation or pension granted during pleasure, and not for any certain time, and revocable in its own nature, is properly the subject of an assignment, as being of too uncertain and fleeting a character to pass by assignment-for although mere expectancies may pass by assignment, yet they must be of a substantial character, and not ordinarily of such a nature as to rest in the pure discretion of the party granting or withholding them, from time to time, at his pleasure." Story's Eq. Jur., § 1040 f, and note. A distinction has also been taken between the case of an assignment of the arrearages of full pay, or half pay, or other compensation connected with the right to future success, and the case of an assignment of the future accruing pay, or half pay, or other compensation, as the right to arrearages has become absolute, and the assignment thereof may not interfere with any public policy. Story's Eq. Jur., § 1040 f. And military prize money, although resting in the mere bounty of the crown, is held to be different in its nature and objects from military pay, and treated as a right of property rather than as a personal pension or reward. Alexander v. Duke of Wellington, 2 Russ. &

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