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and pay for them, and take them away in a reasonable time after request, the vendor may elect to consider the contract rescinded, and resell the goods.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. 1, 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 69 & 70; 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, and Pearce v. Brooks, L. R. 1 Ex. 213.

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 expressed 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. o. 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 any 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 beneficial 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 he 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 to be greater than it is, by which his employer is deceived, he is liable to an action damages.

But if a person be employed to perform any of these offices, whose common profession or business it is not, the law implies no such general undertaking: in order to charge him with damages, a special agreement is necessary.

If any one cheat me with false cards or dice, or by false weights and measures, or by selling me one commodity for another, an action lies for damages upon the contract: since the law implies that every transaction ought to be fair and honest.

In contracts, likewise, in sales, it is constantly understood that the seller undertakes that the commodity is his own. In contracts for provisions, it is implied that they are wholesome: otherwise, in either case, an action lies for damages.

CHAPTER XI.

Merchant-Shipping and Navigation.

1. Navigation Laws.

2. Discipline, Wages, and Health of Seamen.
3. Board of Trade, Ownership, Registry.
4. Passenger Steamers.

5. Wreck and Salvage.
6. Charter-Party.

7. Bill of Lading.

8. Freight.

9. Bottomry and Respondentia.

10. Average.

11. Pilotage.

12. Merchant Shipping Act, 1873.

I. NAVIGATION LAWS.

THE general aim of these laws has been to encourage British shipping, by securing the carrying trade of the country, both foreign and coastwise, to British-built ships, owned and navigated by British subjects. They are of ancient date; but the policy of them was most directly resorted to and matured to counteract the maritime ascendany of the Dutch, by the famous statute of the Long Parliament in 1651, afterwards confirmed in 1660 by the Navigation Act of 12 Car. 2, c. 18. In this act it is provided that no merchandise, either of Asia, Africa, or America, shall be imported into England except in British-built ships, navigated by an English commander, and manned to the extent of three-fourths of the crew by Englishmen ; and that certain enumerated articles of European merchandise, embracing all the bulky and chief products of the Continent, as well as all Turkish and Russian goods, should not be imported in foreign ships, except such as should be brought directly from the country or place of growth, or manufacture, in ships belonging to such country or place. Besides these exclusive privileges granted to English shipping, the object intended was further sought to be gained by the imposition of discriminative duties, so that the enumerated goods which might be imported in