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The payment of part price of the goods does not affect the vendor's right of stoppage, for part payment only diminishes the vendor's lien to that amount on the goods detained. But where part of the goods sold by an entire contract has come into actual possession, the vendor's right to countermand is wholly at an end, and cannot be exercised over the residue, which may not have been delivered, 2 Hen. Bl. 504. Neither has the vendor any right of stoppage if the vendee has exercised any act of ownership over them; as by tasting, sampling, paying warehouse rent, though at a place short of their ultimate destination, 4 Eps. 82. Even if after goods are sold, they remain in the warehouse of the vendor, and he receive warehouse rent for them, this amounts to such a delivery of the goods to the vendee as to put an end to the vendor's right to stop in transitu.

2. By whom the right of stoppage may be exercised.

This right can only be exercised where the relation of a vendor and vendee subsists between the consignor and consignee; it does not belong to a person who has only a lien upon the goods without any property in them. A carrier, to whom the balance of a general account is due, can only detain for the carriage of the particular goods in his possession. Nor is a mere surety of the price of the goods such a vendor as can exercise the right of stoppage in transitu, even though he may be entitled to a commission on the amount of the goods for which he may have been security. But where a correspondent abroad, in pursuance of orders from a merchant in this country, purchases goods on his own credit, and merely takes a commission on the price, in case of the insolvency of the consignee, he is considered the vendor for stopping the goods in transitu; for there is no privity between the original owner and the insolvent.

It is not necessary that the vendor, to exercise the right of stoppage, should actually take possession of the property consigned by corporal touch; he may put in his claim to the goods in transitu either verbally or in writing, and it will be equivalent in law to an actual stoppage, provided it be made before the transit has expired.

X. CONTRACTS TO MARRY.

If a man and woman, being unmarried, mutually promise to marry each other, but afterwards one of the parties marry another person, an action will lie for the breach of the contract.

If an infant and person of full age mutually promise to marry, the infant, though not bound by the promise, may, notwithstanding, maintain an action for breach of promise by the adult.

A promise by a man to pay a woman a sum of money if he shall marry anybody else, is considered as a restraint of marriage, and therefore void. So, in the case of Hartley v. Rice, which was an

action upon a wagering contract for fifty guineas, that the plaintiff would not marry within six years, this was held to be in restraint of marriage, and therefore void; no circumstance appearing to show that such restraint was prudent and proper in the particular

case.

The Statute of Frauds does not require that mutual promises to marry should be in writing. But a parol agreement to pay money or make a settlement in consideration of marriage, if not reduced to writing, is void.

XI. AVOIDANCE OF CONTRACT.

After bargain for the sale of goods, if the vendee does not come and pay for them, and take them away in a reasonable time after request, the vendor may elect to consider the contract rescinded, and resell the goods.

Generally, if either vendor or vendee neglect to fulfil the conditions of the sale, the other is at liberty to avoid the bargain.

A contract for the sale of goods may also be avoided by the Statute of Limitations, the 21 Jac. c. 16, which fixes the period of six years as the term beyond which a plaintiff cannot lay his cause of action. The general provisions of this act, and of the 3 & 4 W. 4, c. 27, have been stated at pages 54 and 55; we shall only here observe, the courts have manifested great repugnance to a plea under this act, and it is held the statute does not extinguish the right of action, but only suspends the remedy, and this suspension is removed by a subsequent promise or engagement. But by 9 G. 4, c. 14, for a subsequent promise to be binding, and to take the case out of the statute, it is necessary the promise should be in writing, signed by the party chargeable therewith.

From the Statute of Limitations are excepted all persons under age, married women, persons insane, in prison, or abroad; and the limitations of the statute commence only from the time when their respective impediments or disabilities have been removed.

Although a good and sufficient consideration is necessary to the validity of a simple contract, yet a contract may be avoided when founded on a legal consideration, if the execution of the engagement involve the violation of any public law or statute. Thus a contract could not be enforced which is contrary to the act for the prevention of stock-jobbing, or in violation of the stamp, excise, or navigation laws. Neither could an action be sustained on a contract contrary to public morals, though a consideration has been given or received. Therefore the value of prints on obscene and immoral subjects is not recoverable, 4 Esp 27. Nor could the value of articles of dress, or of board and lodging, furnished to a prostitute to enable her to follow her vocation, be recovered, 1 Camp. 358.

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XII. PAYMENT.

In some branches of trade, custom has established a general usage as to the period of credit upon sales of goods, and, where no specific stipulation is made to the contrary, this customary credit is as much a part of the contract as if expressly agreed upon; the law implying that all persons deal according to the general usage, unless the contrary appear.

Where no such usage prevails, and no time of payment is specified in the contract of sale, the money is demandable immediately upon the delivery of the goods.

If the vendor stipulate to deliver certain goods within a limited time, he cannot demand payment until the whole of the goods are delivered.

A person contracting to deliver a certain quantity of goods, and failing to deliver the whole quantity agreed upon, may recover for the part delivered and accepted by the buyer. The buyer can only be exonerated from payment by refusing to accept a part; for, if he accept and take the benefit of part, no protest at the time of acceptance will relieve him from liability of payment, Oxenden v. Wetherell, Easter Term, 1829.

With respect to interest, it is determined that interest is not allowable on demand for goods sold and delivered, unless where there is a specific agreement for that purpose; as by a bill of exchange, promissory note, or an express promise to pay interest; then the vendor is entitled to interest from the time specified.

So, when, from the usage of a particular trade, the intention of the parties that a book-debt shall bear interest can be collected, interest will be allowed.

By 9 G. 4, c. 14, s. 3, no endorsement or memorandum of any payment, upon any promissory note, bill, or other writing, by the party to whom the payment is made, shall be deemed sufficient proof of such payment, so as to take the case out of the Statute of Limitations.

XIII. STAMPING OF CONTRACTS.

A written instrument which requires a stamp cannot be admitted in evidence unless it be duly stamped; and no parol evidence will be received of its contents. If, therefore, the instrument produced is the only legal proof of the transaction, and that cannot be admitted for want of a proper stamp, the transaction cannot be proved at all. But it may happen, in a variety of cases, that the transaction is capable of being proved by other evidence, besides the written instrument; and the objection arising from the Stamp Act may be avoided by resorting to that of other species of proof.

It appears, however, from a decision in the Exchequer, that a deed may be valid without a stamp of the proper denomination,

provided it has a stamp proportioned to the consideration expressol in the deed, and though that consideration proved not to be the true one, 13 Price, 455, E. T. 1824. But, on the other hand, persons are liable to a heavy penalty in not setting forth the full purchase or consideration money.

The Common Law Procedure Act, the 17 & 18 V. c. 125, makes provision for stamping documents at the trial of a cause. By s. 28, upon the production of any document as evidence, it is made the duty of the officer of the court, whose duty it is to read such document, to call the attention of the judge to such omission or insufficiency of the stamp; and the document, if unstamped, or not sufficiently stamped, will not be received in evidence, unless the whole, or the deficiency of the stamp duty, and the penalty required by statute, and an additional £1, be paid.

CHAPTER X.

Assumpsit.

ASSUMPSIT, from the Latin assumo, is an implied contract, by which a man assumes or takes upon him to perform or pay anything to another, and to which he is bound upon the principles of equity and the just construction of law.

1. If I employ a person to transact any business for me, or perform any work, the law implies that I undertook or assumed to pay him so much as his labour deserved. And if I neglect to make him amends, he has a remedy for this injury by bringing his action on the case; in which he is at liberty to suggest that I promised to pay him so much as he reasonably deserved, and then to aver that his trouble was really worth such a sum, which valuation is submitted to the determination of a jury.

2. If one take up goods or wares of a tradesman, without expressly agreeing for the price, there is an implied understanding that the real value of the goods shall be paid, and an action may be brought accordingly.

3. Another implied undertaking is, when one has received money belonging to another, without a consideration given on the receiver's part; for the law construes the money received for the use of the owner only, and implies that the person so receiving it undertook to account for it to the owner. And if he unjustly detain it, an action lies against him, and damages may be recovered. This is an extensive and benefical remedy, applicable almost to every case where a defendant has received what, in equity and fairness, he ought to refund. It lies for money paid by mistake, or on a consideration which happens to fail, or through imposition, extortion,

or oppression, or where any undue advantage is taken of the plaintiff's situation.

4. When a person has laid out and expended his own money for the use of another, at his request, the law implies a promise of repayment, and an action will lie on this undertaking. On this principle it is established that a surety in a bond, who pays the debt of his principal, may recover it by action on the assumpsit, for so much advanced for the use of the principal. But an action will not lie for money paid, when the money has been paid against the express consent of the party for whose use it is supposed to have been paid. Neither can money be recovered back when paid for carrying on an unlawful undertaking, as an unlicensed theatre, 10 Bing. 107.

5. Upon a stated account between two merchants or other persons, the law implies that he against whom the balance appears has engaged to pay it to the other, though there be not any actual promise. Actions, however, to compel a person to bring in and settle his account are now seldom used; the most effectual way to settle these matters is to file a bill in equity, when a discovery may be had on the defendant's oath without relying merely on the evidence which the plaintiff may be able to produce; though, when an account is once settled, nothing is more common than an action on the assumpsit to pay the balance.

6. The last class of implied contracts arises upon the supposition that every one who undertakes any office, employment, trust, or duty, contracts, with those who employ or entrust him, to perform it with integrity, diligence, and skill. And if, by the want of either of these qualities, any injury accrues to individuals, they have their remedy and damages by a special action on the case. few instances will suffice.

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If a public officer be guilty of a neglect of duty, or a sheriff or jailor suffer a prisoner in custody for debt to escape, or if an attorney betray or wilfully neglect the cause of his client, he is liable for damages.

With an innkeeper, there is an implied contract to secure his guest's goods in his inn; with a common carrier to be answerable for the goods he carries; with a common farrier, that he shoes a horse well, without laming him; with a tailor, shoemaker, or other workman, that he performs his business in a workmanlike manner; in which, if they fail, an action on the case lies to recover damages for such breach of their general undertakings. So, too, a surveyor being employed to survey and value premises, upon the security of which money is about to be advanced; if he, through ignorance or negligence, represent the value of the security greater than it is, by which his employer is deceived, he is liable to an action for dainages.

But if a person be employed to perform any of these offices, whose common profession or business it is not, the law implies no

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