the costs of the business included in the agreement to be taxed in the regular way (ss. 8, 9). Where there is an agreement to employ a solicitor on certain terms at a future time, this does not prevent the solicitor from suing the client in a court of law if the client refuses to let him transact the business at all. The Act applies only to that part of an agreement which fixes the mode of payment for work done (a).

contracts of infants

Since the Infants Relief Act, 1874, any contract of an infant Voidable voidable at common law and affirmed by him on attaining his majority must be reckoned as an imperfect obligation of this affirmed at full age. class, viz. on which there has not been and cannot be any remedy. The special features of this subject have been already considered (h), and there is nothing to add except that the general principles set forth in the present chapter seem to be applicable to these as well as to other agreements of imperfect obligation.

cases

There are sundry other cases of a less important kind in Other which the remedy naturally attached to a contract is taken away where conby statute, without the contract itself being forbidden or tract not avoided.

illegal, but remedy

taken

statute.

By the Act 24 Geo. 2, c. 40, s. 12, commonly known as the away by Tippling Act, no debt can be recovered for spirituous liquors Small supplied in quantities of less than twenty shillings' worth at one debts for time (c). The County Courts Act, 1867 (30 & 31 Vict. c. 142, spirits by Tippling s. 4), similarly enacts that no action shall be brought in any Act, 24 court for the price of beer or other specified liquors ejusdem Geo. 2; for beer, generis consumed on the premises. The Act of Geo. 2 applies &c., by whether the person to whom the liquor is supplied be the con- County sumer or not (d). As these enactments do not make the sale illegal, money which has been paid for spirits supplied in small quantities cannot be recovered back (e). A debt for such

(a) Rees v. Williams, L. R. 10 Ex. 200. By the terms of the Act the agreement must be in writing, and it seems it must be signed by both parties: Ex parte Munro, 1 Q. B. D. 724.

(b) Supra, Chap. II., p. 43. (c) By 25 & 26 Vict. c. 38 an exception is made in favour of sales

of spirituous liquor not to be con-
sumed on the premises, and delivered
at the purchaser's residence in quan-
tities of not less than a reputed
quart.

(d) Hughes v. Done or Doane, 1
Q. B. 294, 10 L. J. Q. B. 65.

(e) Philpott v. Jones, 2 A. & E. 41.

Courts

Act, 1867.

Trade union

agree

ments

under

Trade
Union

supplies was once held to be an illegal consideration for a bill
of exchange (a): but this decision seems dictated by an excess
of zeal to carry out the policy of the Act, and is possibly
questionable. In a later case at Nisi Prius (b) Lord Tenter-1
den held that where an account consisted partly of items for
spirituous liquors within the Tippling Act, and partly of other
items, and payments had been made generally in reduction
of the account, the vendor was at liberty to appropriate these
payments to the items for liquor, so as to leave a good cause of
action for the balance; thus treating these debts, like debts
barred by the Statute of Limitation of James I., as existing
though not recoverable.

The writer is not aware of any decision on the modern enact ment as to beer, &c., in the County Courts Act, 1867.

By the Trade Union Act, 1871 (34 & 35 Vict. c. 31) s. 4. certain agreements therein enumerated and relating to the management and operations of trade unions cannot be sued upon, but it is expressly provided that they are not on that account to be deemed unlawful. In this enumeration are included agreeAct, 1871. ments to pay subscriptions. Practically trade union subscriptions are thus placed on the same footing as subscriptions to any club which is not proprietary (e). So far as we are aware there is nothing in principle against the payment of subscriptions to a club being legally enforced: but it would in most cases be extremely difficult, if not impossible, to ascertain who were the proper persons to sue (d). The same difficulty exists in the case of any numerous unincorporated association. But this belongs to another division of our subject (e).

Cases of

The present place seems on the whole the most appropriate one analogy to for mentioning a singular case which may be regarded as the conimperfect

(a) Scott v. Gillmore, 3 Taunt. 226. (b) Crookshanks v. Rose, 5. C. & P. 19.

(c) In the case of a proprietary club the proprietor can sue: see Raggett v. Bishop, 2 C. & P. 343, Raggett v. Musgrave, ib. 556.

(d) In the common law courts of some of the United States, however, the still more difficult attempt has been made to enforce promises to subscribe to public objects in which the subscribers had a common

interest; and in Massachusetts and New York not without success : Hilliard on Contracts, 1. 259; Parsons on Contracts, 1. 377. But see now Cottage Street Church v. Kendall, 121 Mass. 528, where the opinion expressed in earlier dicta, that "it is a sufficient consideration that others were led to subscribe by the very subscription of the defendant." was overruled.

(e) See pp. 199, 216, supra.

tions.

usury laws

as to

made

verse of those we have been dealing with. A valuable considera- obliga tion is given in the course of a transaction which as the law Effect of stands at the time is wholly illegal and confers no right of action repeal of on either party. Afterwards the law which made the transaction illegal is repealed. Is the consideration so received a good founda- advances tion for a new express promise on the part of the receiver? The before. question came before the Court of Exchequer in 1863, some years after the repeal of the usury laws. The plaintiff sued on bills of exchange drawn and accepted after that repeal, but in renewal of other bills given before the repeal in respect of advances made on terms which under the old law were usurious. The former bills were unquestionably void but it was held by the Court (Martin, B. dissenting) that the original advance was a good consideration for the new bills. The question was thus stated in the judgment of the majority :-" Whether an advance of money under such circumstances as to create no legal obligation at the time to repay it can constitute a good consideration for an express promise to do so." And the answer was given thus:-"The consideration which would have been sufficient to support the promise if the law had not forbidden the promise to be made originally does not cease to be sufficient when the legal restriction is abrogated... A man by express promise may render himself liable to pay back money which he has received as a loan, though some positive rule of law or statute intervened at the time to prevent the transaction from constituting a legal debt" (a).

The debt, therefore, which was originally void by the usury laws, seems to have been put in the same position by their repeal as if it had been a debt once enforceable but barred by the Statute of Limitation.

able obli

law.

There is one other analogy to which it is worth while to Treatment advert, although it was never of much practical importance, and of equit. what little it had has in England been taken away by the gations at Judicature Acts. Purely equitable liabilities have to a certain common extent been treated by common law courts as imperfect obligations. The mere existence of a liquidated claim on a trust against the trustee confers no legal remedy. But the trustee may make himself legally liable in respect of such a claim by an

(a) Flight v. Reed, 1 H. & C. 703, 715, 716; 32 L. J. Ex. 265, 269.

Summary

of results.

account stated (a), or by a simple admission that he holds as trustee a certain sum due to the cestui que trust (b). A court of law has also held that a payment made by a debtor without appropriation may be appropriated by the creditor to an equitable debt (c).

It may be useful to sum up in a more general form the results which have been obtained in this chapter.

An imperfect obligation is an existing obligation which is not directly enforceable.

This state of things results from exceptional rules of positive law, and especially from laws limiting the right to enforce contracts by special conditions precedent or subsequent.

When an agreement of imperfect obligation is executory, a right of possession immediately founded on the obligation can be no more enforced than the obligation itself.

Acts done in fulfilment of an imperfect obligation are valid, and may be the foundation of new rights and liabilities, by way of consideration for a new contract or otherwise.

A party who has a liquidated and unconditional claim under an imperfect obligation may obtain satisfaction of such claim by any means other than direct process of law which he might have lawfully employed to obtain it if the obligation had not been imperfect.

The laws which give rise to imperfect obligations by imposing special conditions on the enforcement of rights are generally treated as part of the law of procedure of the forum where they prevail (d), and as part of the lex fori they are applicable to contracts sued upon in that forum without regard to the law governing the substance of the contract (e), but on the other hand they are not regarded in any other forum.

(a) Topham v. Morecroft, 8 E. & B. 972, 983; Howard v. Brownhill, 23 L. J. Q. B. 23.

(b) Ruper v. Holland, 3 A. & E. 99. (c) Bosanquet v. Wray, 6 Taunt. 597.

(d) Contra Savigny, Syst. 8. 270,

273.

(e) This (it is conceived) does not apply to revenue laws, and enactments which are merely ancillary to revenue laws, such as the 30 Vict. c. 23, s. 7, as to marine in

surances.

INDEX.

ACCEPTANCE OF CONTRACT:

within what time, &c., it must be communicated, 9

when the contract is made by correspondence: difficulties of the
subject, 11

authorities reviewed, 13

must be communicated in all cases, 20

will not relate back to date of proposal, 20
must be unqualified, 21

examples of insufficient acceptance, 21

of sufficient acceptance, 23

with immaterial or ambiguous addition, 23
may be communicated by conduct, 28

by conduct as well as by words, must be certain, 30

by receiving document with special conditions, 30
of general offer made by advertisement, &c., 180, 183
of misunderstood proposal, effect of, 419