cannot be permitted to derogate from the rights of third parties (). In other words, although a party may renounce a right or benefit pro se introductum, he cannot renounce that which has been introduced for the benefit of another party; thus, the rule that a child within the age of nurture cannot be separated from the mother by order of removal, was established for the benefit and protection of the child, and therefore cannot be dispensed with by the mother's consent (p). One case may, however, be mentioned to which the rule Principal applies, without qualification-that of a release by one of and surety. several joint creditors, which, in the absence of fraud and collusion, operates as a release of the claim of the other creditors, and may be pleaded accordingly. On the other hand, the creditor's discharge of one joint or joint and several debtor is a discharge of all (q); and a release of the principal debtor discharges the sureties; unless, indeed, there be an express reservation of remedies as against them, enabling the release to be construed as a mere covenant not to sue the principal (r). It is also a well-known principle of law that, where a creditor gives time to the principal debtor (s), there being a surety to secure payment of the debt, and does so without (0) 7 Rep. 23. See Brinsdon v. Allard, 2 E. & E. 19; Slater v. Mayor of Sunderland, 33 L. J. Q. B. 37. (P) Reg. v. Birmingham, 5 Q. B. 210. See 5 E. & B. 892: 10 Q. B. D. 173. (q) Nicholson v. Revill, 4 A. & E. 675, 683; Co. Litt. 232 a; Judgm., Price v. Barker, 4 E. & B. 777; Clayton v. Kynaston, 2 Salk. 573 ; 2 Roll. Abr. 410, D. 1; 412 G., pl. 4. (r) Kearsley v. Cole, 16 M. & W. 123; Thompson v. Lack, 3 C. B. 540; Price v. Barker, 4 E. & B. 779; Owen v. Homan, 4 H. L. Cas. 997, 1037. See Commercial Bank of Tasmania v. Jones. [1893] A. C. 313: 66 (s) The general rule of law Provision positivi juris. consent of or communication with the surety, he discharges the surety from liability, as he thereby places him in a new situation (t), and exposes him to a risk to which he would not otherwise be liable (u); and this seems to afford a further illustration of the remark already offered, that a renunciation of a right cannot in general (r) be made to the injury of a third party. Where, however, a husband, whose wife was entitled to a fund in court, signed a memorandum after marriage, agreeing to secure half her property on herself, it was held that it was competent for the wife to waive this agreement, while executory, and that any benefit which her children might have taken under it, had it been executed, was defeated by her waiver (y). Lastly, it is clear that the maxim, quilibet potest renunciare juri pro se introducto, is inapplicable where an express statutory direction enjoins compliance with the forms which it prescribes; for instance, a testator cannot dispense with the observance of formalities essential to the validity of a will; for the provisions of the Wills Act were introduced for the benefit of the public, not of the individual, and must be regarded as positive ordinances of the legislature, binding part of the creditor, unaccompanied (t) See Harrison v. Seymour, L. (u) Per Ld. Lyndhurst, Oakeley v. Pasheller, 4 Cl. & F. 233. See further as to the rule above stated, per Ld. Brougham, Mactaggart v. Watson, 3 Cl. & F. 541; per Ld. Eldon, Samuell v. Howorth, 3 Mer. 278; 17 R. R. 81, adopted by Ld. Cottenham, Creighton v. Rankin, 7 Cl. & F. 346; Manley v. Boycot, 2 E. & B. 46; Pooley v. Harradine, 7 d. 431; Lawrence v. Walmsley, 12 C. B. N. S. 799, 808. See also Boner v. Macdonald, 3 H. L. Cas. 226; Gen. St. Nav. Co. v. Rolt, 6 C. B. N. S. 550; Way v. Hearn, 11 Id. 774: 13 Id. 292; Frazer v. Jor an, 8 E. & B. 303; Taylor v. Bury s8, 5 H. & N. 1; Bailey v. Edwards, 4 B. & S. 761; Rouse v. Bradjord Bank, [1894] A. C. 586: 63 L. J. Ch. 890. (x) See Langley v. Headland, 19 C. B. N. S. 42. (y) Fenner v. Taylor, 2 Russ. & My. 190; 37 R. R. 300; Macq.. H. & W. 85. upon all (2). QUI SENTIT COMMODUM SENTIRE DEBET ET ONUS.-(2 Inst. 489.) He who derives the advantage ought to sustain the burthen. This rule (d) applies as well where an implied covenant Covenant running with runs with the land, as where the present owner or occupier the land. of land is bound by the express covenant of a prior occupant; whenever, indeed, the ancient maxim, transit terra cum onere, holds true (e). The burthen of repairs has, we may observe, always been thrown as much as possible, by the spirit of the common law, upon the occupier or tenant, not only in accordance with the principle contained in the above maxim, but also because it would be contrary to justice, that the expense of accumulated dilapidation should, at the end of a tenancy, fall upon the landlord, when a small outlay of money by the tenant in the first instance would have prevented any necessity for such expense; to which we may add that, generally, the tenant alone has the opportunity of observing, from time to time, when repairs become necessary. In a leading case on this subject, (2) See per Wilson, J., Habergham v. Vincent, 2 Ves. jun. 227; cited Countess of Zichy Ferraris v. Marq. of Hertford, 3 Curt. 493, 498; S. C., affirmed 4 Moore, P. C. 339. (a Per Alderson, B., Graham v. Ingleby, 1 Exch. 657. (b) Ayr Harbour Trustees v. Oswald, 8 App. Cas. 623; Spurling v. Ban toft, [1891] 2 Q. B. 384: 60 L. J. the facts were that a man demised a house by indenture for years, and the lessee, for himself and his executors, covenanted with the lessor to repair the house at all times necessary; the lessee afterwards assigned it to another party, who suffered it to decay; it was adjudged that covenant lay at suit of the lessor against the assignee, although the lessee had not covenanted for him and his assigns; for the covenant to repair, which extends to the support of the thing demised, is quodammodo appurtenant to it, and goes with it; and, inasmuch as the lessee had taken upon himself to bear the charges of the reparations, the yearly rent was the less, which was to the benefit of the assignee, and qui sentit commodum sentire debet et onus (ƒ). The following case also serves to illustrate the same principle. An action was brought by the devisee in fee of premises against the executor of a devisee for life of the same premises for permissive waste, the devise providing that the tenant for life should keep the premises in repair. The Court pronounced judgment in favour of the plaintiff on the ground that, however doubtful might be the liability, in respect of permissive waste (f), of a tenant for life, upon whom no express duty to repair was imposed by the instrument creating the estate, yet where such a duty was imposed the liability passed with the enjoyment of the thing thus demised (g). The maxim under consideration affects a person who accepts a bequest of leaseholds. For instance, a person who enjoys leasehold property under a will, as legal or equitable tenant for life, is generally bound, as between himself and the testator's estate, to perform all the tenant's obligations under the lease which arise during the course of his life interest (h). (f) Dean and Chapter of Windsor's case, 5 Rep. 25. (f) See Re Cartwright, 41 Ch. D. 532. (g) Woodhouse v. Walker, 5 Q. B. D. 404 49 L. J. Q. B. 609; Aspden v. (h) Re Betty, [1899] 1 Ch. 821: 68 L. J. Ch. 435; Re Gjers, [1899] 2 Ch. 55: 68 L. J. Ch. 442. ratione A liability to repair a public highway may attach to Liability corporations and to individuals by reason of the tenure tenuræ. of lands held by them; and in former days it was common for testators to leave portions of their estate charged with this liability (i); and owners of premises fronting a new street may now be called upon to contribute towards making it good under the provisions of the Public Health Act (k). It has been designated a principle of "universal appli- Principal and agent. cation" that "where a contract has been entered into by one man as agent for another, the person on whose behalf it has been made cannot take the benefit of it without bearing its burthen. The contract must be performed in its integrity" (l). Accordingly, where a person adopts a contract which was made on his behalf, but without his authority, he must adopt it altogether. He cannot ratify that part which is beneficial to himself, and reject the remainder; he must take the benefit to be derived from the transaction cum onere (m). Moreover, where the owner of goods entrusts them to an agent, and authorises him to sell them as his own goods in his own name as principal, and the goods are bought by a buyer in the belief that the agent is the principal, the right of the owner of the goods to recover the price from the buyer is subject to any right of set-off as against the agent which accrued. to the buyer while he still believed that the agent was principal (n); and it is a rule of general application that a person who allows his agent to appear in the character of principal, must take the consequences of the agent being dealt with on the footing that he really is the principal (o). (i) Glen on Highways, 107 et seq. (k) 38 & 39 Vict. c. 55, s. 150. Per Ld. Cranworth and Ld. Kingsdown, Bristow v. Whitmore, 9 H. L. Cas. 391, 404, 418 (where there was a difference of opinion as to the application of the principal maxim; see per Ld. Wensleydale, Id. 406); cited in The Feronia, L. R. 2 A. & E. 75, 77, 85. (m) Per Ld. Ellenborough, 7 East, 166. (n) Semenza v. Brinsley, 18 C. B. N. S. 467, 477; Cooke v. Eshelby, 12 App. Cas. 271: 56 L. J. Q. B. 505. (0) Montagu v. Forwood, [1893] 2 Q. B. 350, 356. |