regard to the contracts of aliens, on the ground of public policy and expediency, though an alien ami might contract and sue, yet the contract of an alien enemy was absolutely void; and even with regard to the contract of an alien ami, if after the contract war broke out, so that he thus became an alien enemy, his remedy here was suspended until the war ceased, and he again became an alien ami (i). The Naturalization Naturalization Act, 1870 (k), now also provides that real and personal Act, 1870. property of every description may be taken, acquired, held, and disposed of, by an alien in the same manner in all respects as by a natural-born British subject; and that a title to real and personal property of every description may be derived through, from, or in succession to an alien, in the same manner in all respects as if a British subject (1), provided that this shall not qualify an alien for any office, or for any municipal, parliamentary, or other franchise (m), nor shall it qualify him to be the owner of a British ship, or any share therein (n). It may possibly be considered, that, by reason of this comprehensive provision, the distinction as to their contracts between an alien ami and an alien enemy is now done away with, and that an alien enemy may contract and sue in the same way as an alien ami, but as the before-mentioned distinction was founded on principles of public policy and expediency (0), this may possibly be considered at present as somewhat doubtful (p). (2) See Chitty on Contracts, 181. (k) 33 Vict. c. 14. (1) Sect. 2. (m) Ibid. (n) 33 Vict. c. 14, s. 14. (0) Broom's Coms. 613. (p) The learned editors of the work, "Chitty on Contracts," however, clearly give it as their opinion that the Naturalization Act, 1870, has done away with all such distinction. They state as follows: "As the statute appears to give this power" (the power of holding and disposing of all property) "to all aliens, whether they be the subjects of a friendly state or not, and whether they reside in this country or not; and the 220 2. Their contracts as to land. An alien may OF CONTRACTS WITH PERSONS UNDER SOME DISABILITY. Secondly, regarding aliens' contracts as to land, they were until lately prohibited from holding any lands in this country, except that an alien ami might hold a lease for not exceeding twenty-one years for the purpose of residence or occupation of himself or his servants, or for the purpose of any business, trade, or manufacture (g), but now, under the provision in the Naturalization Act, 1870 (r), real as well as personal property may be held by an alien. An alien, although not in this country, may be sued be sued here. here if the cause of action arose within the jurisdiction, but no writ of summons in such a case can be issued without the leave of the Court or a judge (s). The writ itself is not served on the alien, but notice of it (t). power so given cannot be enjoyed without entering into contracts for the taking, acquiring, and disposing of real and personal property; it seems to follow that all aliens are now enabled to enter into such contracts, and may now enforce by action in our courts any obligation arising therefrom."-See Chitty on Contracts, 182. (q) 7 & 8 Vict. c. 66, s. 5. (r) 33 Vict. c. 14, ante, p. 219. (8) Order II. r. 4, in Schedule to Judicature Act, 1875, and notes thereon in Griffith's Judicature Acts, 158-163. Indermaur's Manual of Practice, 42, 43. (t) Ibid. CHAPTER VIII. OF THE LIABILITY ON CONTRACTS, THEIR PERFORMANCE, In this chapter it is proposed to consider the position of a person who has entered into a contract, and other points incidental thereto. a contract When any person enters into a valid contract, it follows, as a matter of course, that he thereby incurs a liability to perform such contract, and must either perform it, or show some good excuse for not doing so. This liability on a contract arises directly it is entered When a into, and if it is for the doing of some immediate act, liability on the remedy of the other party to the contract in respect arises. of such liability may be immediately taken, e.g. if A. for consideration agrees to immediately take B. into his employment, and fails to do so, B. may at once sue him for the breach of his contract. But if the contract is for the doing of an act at some future day, then generally the remedy of the other party in respect of such liability cannot be taken until the future day; e.g. if A. for consideration agrees to employ B. at some future day, the remedy cannot, of course, be taken until that future day. To this rule there is, however, one im- When on an portant exception, which may be stated to be that executory where there is an executory contract under which liability arises nothing has been done, and the person liable to do the arrives for doing the act. act before the happening of the future day expressly states that he will not do the act when the future day arrives, or renders himself before the day incapable of doing the act, the remedy may be taken against him at contract a before the day Hochster v. Frost v. To entitle a person to sue performed his part of it. Cutter v. once, though the time for performance has not actually arrived, which is well shown by the case of Hochster v. De la Tour (u). In that case there was an agreement to employ the plaintiff as a courier from a day subsequent to the date of the writ, and before the time for the commencement of the employment the defendant refused to perform the agreement, and discharged the plaintiff from performing it, and he at once commenced his action for breach of this contract. It was objected that he could not sue until the future day arrived, but it was held that he might do so, and the principle before stated was laid down. Again, in the case of Frost v. Knight (x), the defendant had promised to marry the plaintiff on the death of his father; he afterwards, during his father's lifetime, announced his absolute determination never to fulfil the promise, and it was held that the plaintiff might at once regard the contract as broken in all its obligations and consequences, and sue thereon. Where a special contract is entered into by a person, on a contract to entitle him to his remedy against the other party to he must have it, it is very necessary that he himself should strictly carry out on his part the stipulations of the contract. Thus, where the agreement was to pay a man a certain sum provided he proceeded, continued, and did his duty as mate of a ship during a certain voyage, and he died during the voyage, it was held that his representatives could not recover, for the contract had not been strictly carried out by the deceased, and therefore no right of suing had accrued (y). But although, where there is a special contract, the remedy must be on that special contract, and therefore there can gene (u) 2 El. & Bl. 678; Frost v. Knight, L. R. 7 Ex. 111. See also British Wagon Co. v. Lea, L. R. 5 Q. B. D. 149; 49 L. J. Q. B. 321 ; 28 W. R. 349. (x) Supra. (y) Cutter v. Powell, 2 S. L. C. 1; 6 T. R. 320; see also Hulle v. Heightman, 2 East, 145. a special or abandoned rally be no remedy when the person suing has not himself performed its stipulations, yet if the special contract has been abandoned or rescinded by the parties, then an action will lie for what has been done by the person suing on a quantum meruit (z); and it may be But when stated, as a correct general rule, that where there is a contract has special contract not under seal, and one of the parties been rescinded refuses to perform his part of it, or renders himself action may be brought on a absolutely unable to do so, it is open to the other party quantum to at once rescind such special contract, and immedi- meruit. ately sue on a quantum meruit for whatever he has done under the contract previously (a). But to entitle What refusal will justify a a person so to rescind a special contract on the ground party to a of the refusal of the other party to perform it, such contract in refusal must be absolute and unqualified, and a mere conditional refusal will not be sufficient (b). rescinding it. The liability of a person upon a contract may be put How the an end to either 1. By its performance; or, 2. By showing some excuse for its non-performance. liability on a contract may be put an end to. Con- I. Performance of contracts. Firstly, as to the performance of contracts. tracts may be and are of the most varied nature, and they must be carried out according to the stipulations in each particular case, attention being paid always to the ordinary and well-known rules of construction, e.g. that the intention of the parties shall be observed, that the construction shall be liberal, and, failing all other rules of construction, that the contract shall be taken most strongly against the grantor or contractor (c). The most practically useful points to con (2) That is to say, for as much as it is worth, see Brown's Law Dict. 435. (a) Planche v. Colburn, 8 Bing. 14; Withers v. Reynolds, 2 B. & Ad. 882. (b) See Lines v. Rees, cited 2 S. L. C. 36. (c) For rules of construction, see ante, pp. 21-26. |