NOTE OF SOME EDITIONS CITED, AND

ABBREVIATIONS.

Benjamin on Sale. Second edition, 1873.

Dart's Vendors and Purchasers. (Dart, V. & P.) Fourth edition, 1871. I. C. A. The Indian Contract Act is sometimes thus cited.

Law Journal. Always cited by the number of the vol. in the New Series. Law Reports. The Chancery Appeal and Equity cases are cited as "Ch." and "Eq." simply.

Lewin on Trusts. Fifth edition, 1867.

Lindley on the Law of Partnership. (Sometimes cited by the author's name alone.) Third edition, 1873.

Saunders' Reports, notes to by the late Serjeant Williams (Wms. Saund.) Ed. 1871. Cited by the paging of that edition, not the pages of Saunders.

Savigny, System des heutigen römischen Rechts (Savigny, or Sav. Syst.) Berlin, 1840-1849.

Savigny, Das Obligationenrecht (Sav. Obl.) Berlin, 1851—3.

Smith's Leading Cases (Sm. L. C.) Sixth edition, 1867. The seventh

edition has appeared too late to be used.

Vangerow, Lehrbuch der Pandekten (Vangerow, Pand.) Seventh edition, Marburg and Leipzig, 1863.

Pothier's and Story's works are cited by the consecutive sections.

Savigny and Vangerow are cited indifferently by volume and page, or by the consecutive sections, often by both.

ADDENDA.

P. 30, note (). Add reference to Hickman v. Haynes, L. R. 10 C. P. 598. P. 41. S. 5 of Lord Tenterden's Act is now expressly repealed by the Statute Law Revision Act, 1875, 38 & 39 Vict. c. 66.

P. 57. Add at the end of note (d): Pleading in abatement is now abolished by the rules of Court under the Judicature Act, 1875, Order XIX., rule 13, and see Order XVI., rr. 13-16.

P. 61. A married woman who has obtained a protection order can give a valid receipt for a legacy not reduced into possession before the date of the order: Re Coward and Adam's Purchase, 20 Eq. 179.

P. 63 note (a). As to the recognition of separate property by courts of law add reference to Duncan v. Cashin, L. R. 10 C. P. 554.

P. 72. The extent of the liability of a married woman's separate estate has been thus considered by the Master of the Rolls. "A married woman is liable or rather her separate estate is liable (for there is no personal liability as far as she is concerned)—to make good all contracts which are made by her with express reference to the separate estate, or which from the nature of the contract itself must be intended to be so referred; but she is not liable even for general contracts which from their nature cannot be so referred; a fortiori she is not liable for general torts, but her husband is liable." Accordingly the separate estate cannot be made liable for an independent fraud or breach of trust. Wainford v. Heyl, 20 Eq. 321, 324.

P. 105. After Gray v. Lewis add reference to MacDougall v. Gardiner, Court of Appeal, Nov. 12, 1875, (10 Ch. 606) reversing s.c. 20 Eq. 383.

P. 136, note (e). Add reference to Beer v. London and Paris Hotel Co. 20 Eq. 412, 426.

P. 142, note (a). On the last point add reference to Beer v. London and Paris Hotel Co. 20 Eq. 412.

P. 143. As to "fixtures" in the interpretation clause of the Bills of Sale Act, add reference to Meux v. Jacobs, L. R. 7 H. L. 481; and, as to description of occupation, to Smith v. Cheese, W. N. 1875, 227.

P. 162. As to forbearance to enforce a doubtful claim being a good consideration see now Wilby v. Elgee, L. R. 10 C. P. 497.

P. 165, note (b). Llanelly Ry. & Dock Co. v. L. & N. W. Ry. Co. has been affirmed in the House of Lords, L. R. 7 H. L. 550; on the point here referred to see p. 556.

P. 189, note (c). Legal proceedings by and against Friendly Societies, or their branches, in the names of their trustees or officers, are now regulated (from Jan. 1, 1876) by the Friendly Societies' Act, 1875 (38 & 39 Vict c. 60, s. 21) which repeals 18 & 19 Vict. c. 65.

d

P. 198. The County Debentures Act, 1873, is repealed and superseded from 1st Jan. 1876 by the Local Loans Act, 1875, 38 & 39 Vict. c. 83, which enables local authorities to issue transferable debentures and debenture stock.

P. 207. Goodwin v. Robarts, in Ex. Ch. is now reported, L. R. 10 Ex. 337. P. 224, note (e). Add reference to Ex parte Oliver, 4 De G. & Sm. 354, for further proceedings in same matter.

P. 230, note (e). Panama & S. Pacific Telegraph Co. v. India Rubber, &e. Co. is now reported, 10 Ch. 515: and on the general rule against an agent for sale purchasing for himself, add reference to Marsh v. Whitmore, Sup. Ct. U. S., 21 Wall. 178.

P. 262. So in Trist v. Child, 21 Wall. 441, an agreement to prosecute a claim before Congress by means of personal influence and solicitations, of the kind known as "lobby service," has been held void.

P. 267. Agreement not to expose immoral conduct held void as against public policy, Browne v. Brine, W. N. 1875, 228.

P. 303. Cp. Begbie v. Phosphate Sewage Co. L. R. 10 Q. B. 491.

P. 317, Appendix A. Chimney Sweepers must take out a certificate, and are liable to penalties for exercising their business without one: 38 & 39 Vict. c. 70.

P. 318, Appx. A. tit. Simony. The purchase of a life estate in an advowson is not within the statute of Anne, and the purchaser, if a clerk, may offer himself for admission on the next avoidance: Walsh v. Bishop of Lincoln, L. R. 10 C. P. 518.

P. 335. As to "vis major" cp. Nichols v. Marsland, L. R. 10 Ex. 255, 258 P. 364, note (b). Add reference to 34 Beav. 576.

P. 371, note (e). Add reference to Coward v. Hughes, 1 K. & J. 443.

P. 463, notes (a), (c). Gover's ca. is now affirmed by the Court of Appeal, W. N. 1875, 223.

P. 467. Fane v. Fane is now reported, 20 Eq. 698; the grounds of the decision are less general than appeared from the Weekly Notes.

P. 552. In a recent number of the American Law Review (vol. 9, p. 435) the writer of an article on "The Effect of the Seventeenth Section of the English Statute of Frauds" attempts with much ingenuity to show that, like the fourth section, it is only a law of procedure imposing a condition precedent to the remedy by action. But the authorities and analogies relied on seem inconclusive in themselves, and at all events overborne by the marked distinction taken by the Court between the language of the two sections in Laythoarp v. Bryant, 2 Bing. N.C. 735, 747, and Leroux v. Brown, 12 C.B. 801, 824, 826.

As to purchase for value without notice, in the passages where this doctrine in the law of real property is incidentally mentioned (pp. 199, 361) nothing has been said of s. 7 of the Vendor and Purchaser Act, 1874, which would have radically changed the law on that subject. It was understood that this enactment, in its actual form and connexion, had been passed by some misadventure and was to be repealed; and it is now repealed by s. 129 of the Land Transfer Act, 1875, 38 & 39 Vict. c. 87.

CHAPTER I.

AGREEMENT, PROPOSAL, AND ACCEPTANCE.

Ir is somewhat curious that no such thing as a satisfactory Contract a definition of Contract is to be found in any of our books. The special and complex truth is that not one definition but a series of definitions is conception. required, and this want is supplied by the interpretation clause of the Indian Contract Act (to be presently quoted) with a completeness and accuracy which in the present writer's judgment are not likely to be much improved upon for any practical purpose. Before we come to this, however, it is worth while to show, by approaching the conception of Contract from a more general point of view, of how special and complex a nature the conception really is.

One always thinks of the consent of the parties as the main thing that goes to make a contract, as beyond question it is. A contract is before all things a transaction in which two or more persons consent. But this is a generic, not a specific description. Every contract involves consent, but many legal transactions involve consent without being contracts. For a generic name A branch of of all legal transactions in which consent is necessary we may in wider Agreement provisionally, for want of any better word, use the term Agree- sense

analysis.

ment in the widest possible sense (a). Let us now see how Savigny's many things are included in the consent that makes a legal agreement. Consider a familiar and unquestionable instance, the contract of sale. The first thing we observe is that it takes not less than two persons to make it. In this and in most cases there are in fact not more; but others readily occur, such as partnership, where the number is not limited. The next

(a) Vertrag as used by Savigny, whose analysis (Syst. § 140, vol. 3.,

p. 307) we follow almost literally
in this paragraph.

B