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deed.

on a particular point will not justify the Court in saying that Ch. XXVII. a mistake committed on one side must be taken to be mutual (t),

Rectification

of Contracts. and in these cases the real mistake is that of the party who neglected to give consideration to the particular clause.

A voluntary deed cannot be rectified except with the consent of Voluntary the donor (u). A deed will not be rectified as against a purchaser (x).

Purchaser. Actions for rectification, setting aside, or cancellation of deeds Procedure : or other written instruments, are by sect. 34, sub-sect. 3 of the Judi- action must

be in cature Act, 1873, assigned to the Chancery Division of the High Chancery Court; but the other Divisions have jurisdiction under sect. 24 of Division. that Act to rectify contracts incidentally, as where a defendant claims rectification by counter-claim (y). The Court can both rectify and decree specific performance in one and the same action (2).

Where a contract for the sale of a life policy was made in a Death of common mistaken belief that the assured was alive, it was held assured before

sale of life that the vendors were entitled to have it set aside notwithstanding policy. completion by assignment(a).

By sect. 67 of the County Courts Act, 1888, 51 & 52 Vict. c. 43, Jurisdiction a County Court may exercise all the powers of the High Court in County actions for the reforming of any agreement for the sale, purchase, or lease of any property where, in the case of a sale or purchase the purchase money, or in the case of a lease the value of the property, shall not exceed 5001., and also in actions for relief against mistake in which the damage sustained or the estate or fund in respect of which relief is sought, shall not exceed in amount or value 5001.

(1) Thompson v. Whitmore (1860), 1 J. & H. at p. 276.

(u) Phillipson v. Kerry (1863), 32 Beav. 628.

(2) Seton on Decrees, Vol. II., Pt. 1, at p. 1342, citing Garrard v. Franckel (1862), 30 Beav. 415.

(y) See Mostyn v. Iest Vostyn, &c., Co. (1876), 1 C. P. D. 145; Storey v. Waddle (1879), 4 Q. B. D. 289.

(2) Olley v. Fisher (1886), 34 Ch. D. 367.

(a) Scott v. Coulson, [1903] 1 Ch. 453, per Kekewich, J.

[P.T.o.

APPENDIX.

NOTE ON DECIDED CASES."

Communis error facit jus (a). Omnis innovatio plus Novitate perturbat quam utilitate prodest (6).-In accordance (though seldom, if ever, expressly) with these maxims, Judges have over and over again (c) declined to disturb the law as settled by old decisions, however much they may themselves disagree with it. “The profession," observed Sir J. Mansfield in Doe v. Bliss (d) “ have always wondered at Dumpor's case ; but it has been law for so many centuries that we cannot overrule it”; and law it remained until 1859, when it was abrogated by the Law of Property Amendment Act. Similarly in 1884 the House of Lords in Foakes v. Beer (ante, p. 639) declined to reverse the long established rule that an agreement to take less than is due is no legal accord and satisfaction, although Lord Blackburn declared in his judgment (which will well repay perusal) that he had all but persuaded himself that the rule might be broken in upon. But perhaps the strongest instance of judicial practice in this matter is afforded by Lancashire Cotton Spinners Co., In re (e), in which a Court of Appeal in 1887 disapproved but followed the construction in 1864 of sects. 87, 163 of the Companies Act, 1862.

The House of Lords is bound by its own decisions, but if two decisions cannot be reconciled, the later prevails ($). If the House be equally divided, the decision of the Court appealed against stands.

House of Lords decisions bind every Court in the United Kingdom, but Privy Council decisions have technically no such authority.

Scots and Irish decisions have technically no authority in England, nor have English decisions any authority in Scotland or Ireland (9); but in each country the view of the Court in either of the others has much weight (h).

For cases on the law of contract in which it is possible that a Court inight disagree with the law, and decline to disturb it on the ground of its long standing, see the requirement of writing for contracts of marriage (p. 173, ante), the personal liability of an executor on the covenants of a lease (p. 285), and the measure of damages (see p. 716).

For the curiously unsettled question whether a contract within the Statute of Frauds, if sealed, need not be signed, see p. 84, ante.

(a) 4 Iust. 210; Brooni's Legal Maxims, re (1887), 35 Ch. D. 656. 7th ed. by Manisty and Chitty, at p. 112. (f) Caledonian Railway v. Walker's (6) Bulstr. 338; Broom's Maxims at Trustees (1881), 7 App. Cas. 259, per

Lord Selborne. (c) See the very numerous instances (9) See Ewing v. Orr-Ewing (1885), 10 cited in Mews's Digest, Vol. V., tit. App. Cas. 499. "Deciiled Cases."

(h) See L. & N. W. R. Co. v. Skerton (1) Doe v. Bliss (1813), 4 Taunt. 735. (1861), 33 L. J., M. C. 158. (e) Lancashire Cotton Spinners Co., In

1. 118.

INDEX.

All the chapters but the last hare paged tables of contents prefixed to them.

ABANDONMENT OF CONTRACT

by builder, effect of (Sumpter v. Hedges), 496.
proceedings upon,

620.
ACCEPTANCE
of bill of exchange, definition and requisites of, 434.

liability of acceptor, 438.
of goods, what sufficient to satisfy Sale of Goods Act, 341.

definition of " acceptance,” 77.

refusal of, damages for, 358.
of offer to contract, 8.

invalidity of promise of time for, 9.
no new term to be introduced, 12.
Cooke v. Oxley, 9.
conditional on further formal agreement (Hussey v. Horne-Payne), 12.
effect of posting letter of (Dunlop v. Higgins), 15.

revocation of accepting letter, effect of, 16.

contracts by telegram, 17.
ACCIDENT,

death by, executor's remedy in case of, 420.
liability of carriers of passengers for (Redhead v. Midland R. Co.), 417.

Dickinson v. Dodds, 10.
no excuse for loss of or injury to goods, in the case of carriers, 387.
perishing of goods sold by, effect of, 341.
performance of contract when excused by occurrence of, 608.

must be communicated, 12.
ACCOMMODATION PARTY

to Bill of Exchange, definition of, 436.
ACCORD AND SATISFACTION, 637.

by a stranger, 641.
by deed when necessary, 610.
fraud, obtained by, void, 638.
payment of part, no satisfaction of remainder (Foakes v. Beer), 639.

except by negotiable instrument (Bidder v. Bridges), 639.
what amounts to, 637.

retainer of cheque on account, effect of, 637.
what is not, 640.

with or by one of several parties, 640.
ACCOUNT STATED, 70 et seq.

acknowledgment of must be unqualified, 72.
admission of a debt certain, what sufficient, to support claim upon, 71.
cases in which party may recover on, though not on original claim, 72.
fraud, discovery of, effect of, 73.
infant not liable on, 173.

ACKNOWLEDGMENT,

of debt, &c., does not require an agreement stamp, 127.
what sufficient to take a case out of the Statute of Limitations, 679.

must be by signed writing, 74, 679.
text of Lord Tenterden's Act to that effect, 679.

ACQUIESCENCE,

implied contract arising from, 41.

cases of insufficient, 688.
ACTION,

chose in, when assignment consideration for promise, 26.
includes counterclaim in Sale of Goods Act, 338.

waiver of right of, consideration for contract, 24.
ACT OF BANKRUPTCY,

contract valid if made without notice of, 164.
ACT OF GOD,

definition of (Nugent v. Smith), 388.
as defence by bailee, 367.
excuse for non-performance, by carrier of goods, 388.

or innkeeper, 377.

generally, 611.
ACT OF LAW,

excuse for non-performance of contract, 611.
ACT OF PARLIAMENT,

repeal of covenant by (Bailey v. De Crespigny), 611. And see STATUTE.
ACTRESS,
"three years' ” engagement of, meaning of, 111.

parol evidence may be given to show, 111.
enforcement of contract by to perform (Lumley v. Wagner), 510.
married, can she contract without husband's consent? 186.

ACTS OF PARTIES,

contract implied from, 40, 41.

engagement for act of third party, when binding, 32.
ADEQUACY OF CONSIDERATION,

as regards the promisee, 22.
as regards the promiser, 21.

when material at law is a question for the Court, 22 (y).
ADMINISTRATOR. See EXECUTORS AND ADMINISTRATORS.

actions by and against in respect of contracts, 284.
ADMISSION,

effect of, in simple contracts, as estoppel (Pickard v. Sears), 7.
of correctness of account does not require a stamp, 127.

of debt, when evidence in support of claim on account stated, 71.
ADVANCEMENT

to child, presumed to be gift, not loan, 522.
ADULTERATION

of food, Acts penalising, 362.
ADULTERY

of wife, effect of, as to husband's liability on her contracts, 205, 212.
ADVERTISEMENT, CONTRACTS BY,
Railway Time Tables, 421, 535.

railway companies bound by (Denton v. G. N. R. Co.), 421.
announcement of auction (Harris v. Nickerson), 535.

of examination for scholarship, 535.
offer for sale by tender, 535.

to pay sum to purchaser of specific, on its failing, 536.
for evidence, 536.

recovery of reward promised by (Williams v. Carwardine), 535.
AFFILIATION,

forbearance from, good consideration, 24.
AFFIRMATION,

no contract by mere affirmation in discourse, 9.

AFFREIGHTMENT, CONTRACT OF,

by what law questions arising under, are to be determined, 98.

AGENT, 221–251.
acknowledgment by, to bar Statute of Limitations, 684.

in writing, signed by authorized agent, 684.
acts or contracts of, when binding on principal, 227.

though for agent's own benefit (Hambro v. Burnand), 230.
appointment of, 223.

when required to be by deed or writing, 225.

by power of attorney, 227.
authority of, construction of, 227.

delegation of not ordinarily allowed, 233.
determination of, modes of, 225.
by death of principal (Campanari v. Woodburn), 225.

lunacy (Drew v. Nunn), 225.
given to several must be exercised by all, 235.
implied, 224.
misrepresentation of, agent's liability for, 244.

though innocent (Collen v. Wright), 244.
revocation of, 225, 226.
to pledge, at common law, 235.

under Factors Act, 235.
to sell on credit, 232.

to take payment by cheque, 233.
bankruptcy of, determines authority, 225.
bribed, dismissal of (Boston Fisheries v. Ansell), 248.
brokers, general agents, 222.
cheque, payment by, to, 233.
credit, purchase of goods on, 229.

sale on, 232.
commission, right of, to, 493.

opportunity to earn must be given, 493.
forfeiture of by negligence, 494.

secret, taking of, effect of, 247.
delegation of authority by, 233.
del credere, what, 222.
Factors Act, powers under, 235.
fraud of, when principal responsible for, 231.
general, distinction between special and, 228.
goods, for sale of, unaffected by Sale of Goods Act, 336.
government, contracts with, 281.

how money received by, for use of private person, may be recovered,

281.
liability of, personally:
ordinarily none, 241.

none by innocent misrepresentation, 227,
by concealing principal, 241.
by special terms of contract, 241.
on promissory note, 243.
for misrepresentation of authority (Collen v. Wright), 241.
by usage of trade, 246.

parol evidence to show personal liability, 111
partnership bound by authorized acts of, 254
payment by, 623.
payment to, when binding on principal, 624.
pledge by, at common law, 235.

under Factors Act, 235.
profits made by, as agent, principal's right to (Parker v. M-Kenna), 247.
ratification by principal of act of, effect of, 235.
regimental, 283.
signature by, under Statute of Frauds (leases, &c.), 76.

with authority in writing, 76.
signature by, under Statute of Frauds (guarantee, land sale, &c.), 77.

“lawfully authorized,” 77.
under Sale of Goods Act, 77.

per proc." under Bills of Exchange Act, 243.

under Railway and Canal Traffic Act, 408.
solicitor, 222, 242.

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