A.-No; courts of law do not take upon themselves to support moral obligations when no legal liability ever existed: (Beaumont v. Reeve, 8 Q. B. Rep. 483; Hallilay's Digest, 7, 7th edit.; Chit. Cont. 37, 8th edit.)

Q.-If A. has been guilty of a wrongful act or omission which would render him liable in damages to B., and A. promises to pay B. a sum of money as compensation, what consideration is necessary to prevent this from being a mere gratuitous promise?

A. The promise must be made in consideration of B. releasing his right of action for such damages: (Chit. Cont. 45, 8th edit.)

Q.-Is a promise to pay a debt of another binding without some new consideration ?

A.-No. But if credit were originally given to the third person at the promiser's request, this might constitute a sufficient consideration for his subsequent guarantee: (Chit. Cont. 44, 8th edit.)

Q. When a contract is entered into upon two considerations, one legal and the other illegal, what is the result? Is the contract void or binding in whole or in part? Give the reasons for your answer.

A. The whole contract is void, whether the illegality exist at common law or by statute; for it is impossible to say how much or how little weight the illegal portion may have had in inducing the execution of the entire contract: (Smith's Cont. 18, 3rd edit.; Chit. Cont. 18, 48, 8th edit.)

Q.-Must the consideration for a promise to answer for the debt of another be in writing?

A.-Not in the case of guarantees made after the passing of 19 & 20 Vict. c. 97: (Chit. Cont. 64, 8th edit.; Hallilay's Digest, 23, 7th edit.)

Q. What is meant by the consideration in an agreement being executory, and how far does its being so affect the form of declaration?

A.-A consideration is executory when something is to be done after such promise. It must be performed by the plaintiff before his right of action accrues; and the fact of such performance must be averred in the declaration, otherwise it will be bad: (Chit. Cont. 49, 52, 8th edit.)

Q. Can a stranger to a deed sue upon a covenant in it for his benefit ? A. As a general rule, a stranger to a deed cannot sue upon it, though the covenant be made expressly for his advantage. But it is otherwise where the covenant runs with the land or with the reversion, and the like (Chit. Cont. 54, 8th edit.)

Q. If a promissory note be given for the payment of money at a specified time, can verbal evidence be given to prove that the time of payment is extended?

A.-No: (Chit. Cont. 99, 8th edit.)

Implied Contracts.

Q.-What is an implied contract? and give an instance. (a)

A. It is one which rests merely on construction of law, and in which there is, strictly speaking, no agreement of the parties to the terms by which they are bound. However, it has been said that the chief difference between an express and an implied contract is in the mode of substantiating them. Thus, if I employ a person to do any business for me, or perform any work, the law implies that I contracted to pay him as much as his labour deserves: (Chit. Cont. 55, 56, 8th edit.)

(a) Five.

Q.-What is the difference between an express and an implied contract? A.-An express contract is one in which the terms of the agreement, whether it be by deed or parol, are openly expressed or uttered at the time of the making thereof: (Chit. Cont. 55, 8th edit.)

As to an implied contract, see preceding answer.

Q.-In what cases will a contract be implied from the usage of trade? A. When there is a uniform and universal usage of any trade, the law implies on the part of one who contracts upon a matter within such usage a promise for the benefit of the other party in conformity with such usage, provided there be no express stipulation between them inconsistent therewith; as where it is the custom of a trade to give credit for work done, parties are supposed to deal on such terms: (Chit. Cont. 58, 8th edit.) Q.-Can an agreement be established by means of correspondence between two parties; and if so, what is essential to make such agreement binding?

A. The letters must contain all the terms of the contract; refer to each other, and the acceptance must be a simple acceptance of the proposal without introducing any new terms: (Chit. Cont. 10, 100, 8th edit.; Hallilay's Digest, 343, 7th edit.)

Q.-Is a party liable to be sued on a contract implied by law when he has made a specific contract on the same subject matter? Is there any, and what legal maxim on this point?

A.-No; not even if the express contract may be avoid by fraud, the maxim being "Expressum facit cessare tacitum": (Chit. Cont. 62, 8th edit.)

Q. What simple contracts are required by law to be in writing? (a) A.-(1) under the Statute of Frauds (see infra); (2) on the grant of annuities; (3) the sale or transfer of ships; (4) the assignment of copyright; (5) a promise to pay a statute barred debt; (6) a debt contracted during infancy; (7) bills of exchange and promissory notes, and similar negotiable instruments, &c.: (Chit. Cont. 63, et seq. 8th edit.)

Q.-What contracts does the 4th section of the Statute of Frauds require to be in writing? (b)

A.-Contracts (1) to charge an executor or administrator with damages out of his own estate; or (2) to answer for the debt, default, or miscarriage of another; or (3) upon a contract made upon consideration of marriage; or (4) contracts relating to lands, tenements, and hereditaments; or (5) contracts not to be performed within a year from the making thereof: (Chit. Cont. 65, 8th edit.; Hallilay's Digest, 6, 13, 7th edit.)

Q.-Mention some simple contracts which need not be in writing.

A. Where the law has made no special provision to the contrary, a simple contract need not be in writing. And therefore a general hiring of a clerk or a contract to serve for an indefinite period, subject to be put an end to at any time upon reasonable notice, or a contract to leave money by will, or to pay money to the plaintiff on the day of his marriage, or on the arrival of a ship, need not be in writing, as the whole contract may be performed within a year: (Chit. Cont. 70, 8th edit.)

Q.-If a contract which is not to be performed within a year be by parol, is it binding?

A.-A contract by parol which cannot be performed within a year by either party is bad, as just shown: (29 Car. 2, c. 3, s. 4; Hallilay's Digest, 6, 13, 7th edit.; Chit. Cont. 66, 69, 8th edit.)

Q.-If A. contracts with B. to hire him for twelve months, the service to commence at the end of a month from the hiring, is a verbal agreement sufficient; and if not, why not?

A. It is not, for the contract cannot be performed within a year, and such a contract the 4th section of the Statute of Frauds requires to be in writing (Chit. Cont. 69, 8th edit.; Hallilay's Digest, 6, 13, 7th edit.)

Q.-Is the construction of a written contract a question for the court or jury? (a)

A. For the court. When, however, the contract does not depend solely on written documents, the question as to what such contract was is properly one for the jury: (Chit. Cont. 71, 8th edit.)

Q.-Illustrate the maxim "Verba intentioni debent inservire," by the instance given by Dr. Paley.

A.-Temures promised the garrison of Sebastia that if they would surrender no blood should be shed. The garrison surrendered, and Temures buried them all alive: (Chit. Cont. 72, 8th edit.)

Q.-In what sense are words used in a (written) contract to be construed?

A.-Words are to be construed according to their plain, ordinary, and popular sense, unless they have acquired, in respect of the subject matter, a particular sense, as by the usage of trade, or unless the context evidently points out that they must in that particular instance be understood in some other particular sense, in order to carry out the intention of the parties (Chit. Cont. 79, 8th edit.)

Q.-If a contract is made abroad, and sought to be enforced in this country, is it governed by the law of the country in which it was made or the law of this country?(b)

A.—As a general rule by the lex loci contractus. But the practical conduct of the action is governed by our forms of procedure and practicethe lex loci fori. And as to the construction of the contract, even if the parties at the time of making it had in view a different kingdom, then the law of the country where the contract is intended to be executed governs it: (Chit. Cont. 89-92, 8th edit.; Hallilay's Digest, 7, 41, 7th edit.) Q.-When several persons stipulate for the performance of an act, are they bound jointly or severally?

A.—It is said they are bound jointly, and not severally; and that there must be express words to create a several liability. However, it is also true that, even in the absence of express words, an agreement primâ facie may be construed severally, if the interest of either party require it: (Chit. Cont. 95, 8th edit.)

Q.-What are the general rules as to the admissibility of parol evidence to contradict or vary or explain written contracts? if it can be so used, state when.(b)

A.—It is a rule of law that parol evidence cannot be received to contradict, vary, or add to a written contract. But such evidence may, in cases of doubt, be received to explain such contract; that is, explain a latent ambiguity. Thus, if there be a devise or grant of "the manor of A.," the party having two manors of that name, parol evidence is admitted to show which was intended: (Hallilay's Digest, 84, 7th edit.; Chit. Cont. 96-109, 8th edit.)

Q.-Is parol evidence admissible to impeach the consideration of a bill of exchange ?(a)

A.-Although it is a rule that parol evidence cannot be given to contradict or vary a written contract, yet it is always admitted to defeat or impeach a written instrument (as a bill or note) on the ground of illegality, fraud, or duress. But if a bill or note express the consideration for which it was made, evidence cannot be given of a consideration inconsistent with those terms: (Chit. Cont. 99, 108, 8th edit.)

Q.-Is a subsequent parol agreement an answer to an action on a deed? A.-No; because the deed is of a higher nature: (Letter v. Holland, 3 Term Rep. 590; Chit. Cont. 106, 8th edit.; Hallilay's Digest, 3, 7th edit.)

Q.-In what manner can the liability by deed be varied or discharged? A. Only by instrument under seal, as a general rule. But in an action on a bond against a surety, the fact that the creditor has by a binding agreement not under seal given the principal debtor further time, may be pleaded at law by way of equitable defence to an action against the surety (Chit. Cont. 106, 497, 8th edit.; 17 & 18 Vict. c. 125, s. 83.)

Stamping Agreements.

Q. What is the stamp duty on an agreement of the value of 5l. or upwards, under the stat. 33 & 34 Vict. c. 97?

A.-The duty is 6d.

Q.-Does an authority to pay money require a stamp?

A.-No; and this is so whether the payment is to be made generally or out of a particular fund: (Chit. Cont. 118, 8th edit.)

H

CHAPTER II.

Question. Mention those classes of persons who are exempt from liability on their contracts by reason of their incompetency to contract.(a) Answer.—As a general proposition, idiots and lunatics and infants cannot contract except for necessaries. A married woman can only contract so as to bind her husband for necessaries suitable to his station in life. Outlaws and felons cannot contract. The contract of a person made under duress cannot be enforced against him, but it may be enforced by him: (Chit. Cont. 131, et seq., 8th edit.)

Q. What is the position of a person of unsound mind as regards his liability on simple contracts?

A.-A person non compos mentis is liable on simple contracts for necessaries, and for moneys expended in providing him with proper protection and support, if no advantage was taken of his mental incapacity by the person dealing with him: (Chit. Cont. 133-136, 8th edit.; Hallilay's Digest, 390, 7th edit.)

Q.-Is the liability of an infant affected by a fraudulent representation made by him at the time of entering into a contract and believed by the other party that he was of full age?

A.-No; the plea of infancy is still a good answer to the action. Nor can the fraudulent misrepresentation be made the subject of a replication on equitable grounds: a court of equity, however, might grant relief on the ground of fraud: (Chit. Cont. 138, 8th edit.; Hallilay's Digest, 4, 7th edit.)

Q.-For what contracts is an infant liable, and what is the liability of those who contract with infants?

A.-An infant is liable only on a contract for necessaries, unless he confirm it after he attains his majority. But those who contract with infants are bound by such contract, for infancy is a personal privilege, to be taken advantage of by the infant himself: (Chit. Cont. 138, 150, 8th edit.; Hallilay's Digest, 4, 7th edit.)

Q. Can an infant sue or be sued for a breach of a promise of marriage?

A. An infant may sue, but cannot be sued for a breach of promise of marriage (Chit. Cont. 150, 8th edit.; Hallilay's Digest, 4, 7th edit.)

Q.-Is an infant liable for regimentals supplied to him as a member of a volunteer corps ?

A.-It seems that he is; at all events in perilous times they were held to be necessaries: (Chit. Cont. 139, 8th edit.)

Q.-If an infant be sent to school by his guardian who dies without having paid for his schooling, who is liable to pay the bill? Give the reason for your answer.

A.- Although an infant is liable to pay for instruction that may profit

(a) Twice.