« 이전계속 »
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),
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,  1 Ch. 453, per Kekewich, J.
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
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.
liability of acceptor, 438.
definition of " acceptance,” 77.
refusal of, damages for, 358.
invalidity of promise of time for, 9.
revocation of accepting letter, effect of, 16.
contracts by telegram, 17.
death by, executor's remedy in case of, 420.
Dickinson v. Dodds, 10.
must be communicated, 12.
to Bill of Exchange, definition of, 436.
by a stranger, 641.
except by negotiable instrument (Bidder v. Bridges), 639.
retainer of cheque on account, effect of, 637.
with or by one of several parties, 640.
acknowledgment of must be unqualified, 72.
of debt, &c., does not require an agreement stamp, 127.
must be by signed writing, 74, 679.
implied contract arising from, 41.
cases of insufficient, 688.
chose in, when assignment consideration for promise, 26.
waiver of right of, consideration for contract, 24.
contract valid if made without notice of, 164.
definition of (Nugent v. Smith), 388.
or innkeeper, 377.
excuse for non-performance of contract, 611.
repeal of covenant by (Bailey v. De Crespigny), 611. And see STATUTE.
parol evidence may be given to show, 111.
ACTS OF PARTIES,
contract implied from, 40, 41.
engagement for act of third party, when binding, 32.
as regards the promisee, 22.
when material at law is a question for the Court, 22 (y).
actions by and against in respect of contracts, 284.
effect of, in simple contracts, as estoppel (Pickard v. Sears), 7.
of debt, when evidence in support of claim on account stated, 71.
to child, presumed to be gift, not loan, 522.
of food, Acts penalising, 362.
of wife, effect of, as to husband's liability on her contracts, 205, 212.
railway companies bound by (Denton v. G. N. R. Co.), 421.
of examination for scholarship, 535.
to pay sum to purchaser of specific, on its failing, 536.
recovery of reward promised by (Williams v. Carwardine), 535.
forbearance from, good consideration, 24.
no contract by mere affirmation in discourse, 9.
AFFREIGHTMENT, CONTRACT OF,
by what law questions arising under, are to be determined, 98.
in writing, signed by authorized agent, 684.
though for agent's own benefit (Hambro v. Burnand), 230.
when required to be by deed or writing, 225.
by power of attorney, 227.
delegation of not ordinarily allowed, 233.
lunacy (Drew v. Nunn), 225.
though innocent (Collen v. Wright), 244.
under Factors Act, 235.
to take payment by cheque, 233.
sale on, 232.
opportunity to earn must be given, 493.
secret, taking of, effect of, 247.
how money received by, for use of private person, may be recovered,
none by innocent misrepresentation, 227,
parol evidence to show personal liability, 111
under Factors Act, 235.
with authority in writing, 76.
“lawfully authorized,” 77.
per proc." under Bills of Exchange Act, 243.
under Railway and Canal Traffic Act, 408.