OUTLINE OF COMMON LAW.

The municipal law of England is divided into the lex non scripta, the unwritten or common law; and the lex scripta, the written or statute law. The unwritten or common law is by Mr. Justice Blackstone, divided into three kinds: I. General customs; which are the universal rule of the whole kingdom, and form the common law in its stricter and more usual signification; II. Particular customs; which affect only the inhabitants of particular districts, and III. Certain particular laws which by custom are adopted and used by some particular courts of pretty general and extensive signification.

There are three Superior Courts of Common Law: the Queen's Bench, the Exchequer of Pleas, and the Court of Common Pleas. The inferior Courts of Common Law are the County Courts, the Courts of Record, and other Local Courts with civil jurisdiction.

The actions brought in the Courts of Common Law are mostly for breach of contract, or for wrongs independent of contract.

Of Contracts.

A contract is an agreement between two or more persons to do or not to do a particular act. Contracts in this country are either contracts by matter of record, deeds, or simple contracts.

Contracts by matter of record are contracts acknowledged in open court before an officer of the court, and recorded in the presence of the party making the

acknowledgement. A record is proved by mere production of the document. The recognizances entered into by witnesses to enforce their attendance at criminal courts, are the most usual recognizances at the present day.

Deeds are contracts in writings on parchment or paper, and sealed and delivered as a deed. No consideration is requisite for a deed, except in the case of a bargain and sale of lands, a covenant to stand seised to a use, and a covenant in restraint of trade. A deed may be in any language, but all certificates, patents, charters, bonds, records, judgments, statutes, and recognizances must be written in the English language. A deed is sometimes called a specialty, and is regarded as of a much superior nature to a simple contract. Thus, if a simple contract (which will be afterwards explained) is made and afterwards a contract by deed is executed by the parties for the same object as is contemplated by the simple contract, the latter becomes merged in the deed and cannot be enforced, although the deed may.

A simple contract is either in writing or verbal, and must in either case be founded on a consideration recognised by law. If made without consideration the contract is called a nudum pactum, or one which cannot be enforced by process of law.

For the validity of all contracts there are two requisites. I. The parties must be competent to contract. II. The object of the contract must be legal. For the validity of simple contracts in addition to the preceding there are two other requisites, and these are: III. The contract must be founded on good legal consideration. IV. The contract must be mutual.

I. Parties competent to contract are all persons 21 years of age or more, unless they are married women, persons of unsound mind, alien enemies, outlaws, or convicted felons.

A person under twenty-one years of age is regarded by the law as an infant, and his contract, unless of a beneficial character to himself, or for necessaries for

himself, or his wife, or family, is void. Necessaries are articles supplied to the infant suitable to his station in life, and in general comprise lodgings, meat, drink, apparel, physic, and suitable instruction. An agreement by an infant to serve for wages is considered of a beneficial character, unless there are stipulations in it of an inequitable nature. A deed if beneficial to an infant is merely voidable by him, and until avoided it stands good, but if the contract be prejudicial to the infant, as a bond with a penalty, it is void.

After full age an infant may ratify his simple contract by any written instrument signed by him.

A married woman is incapable of binding herself at law by any contract, it being regarded as absolutely void, as her husband and she are in contemplation of law but one person. But after a judicial separation by which the marriage is dissolved, or if the husband has been convicted of felony and transported, she is capable of contracting.

A lunatic is liable on an executed contract, where the plaintiff had no notice of insanity and practised no imposition upon him.

Alien enemies, or subjects of a country with which we are at war, are incapable of making contracts, which are wholly void and cannot even be enforced upon the return of peace.

Outlaws and persons under sentence for felony are disabled from suing upon contracts made before or during the continuance of the disability.

II. The object of the contract is legal if it does not contravene the principles of equity, the rules of the common law, or any statute.

Contracts invalid in equity will be adverted to elsewhere.

Contracts illegal at common law are those which are contrary to public policy, tend to promote immorality or crime, or are fraudulent.

Among contracts contrary to public policy are those in general restraint of trade, or marriage, or which tend to create monopolies. Among contracts which tend to promote immorality or crime are contracts to print or

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publish immoral books, indemnities against the publication of libels, and promises to reward a person for committing an assault or other crime. Fraudulent contracts are those which, but for the deceitful representation or concealment of a material circumstance relating to the contract by one party, would not have been entered into by the other party to the contract.

Contracts illegal by statute are those which are prohibited by statute, or subject the offending party to a statutory penalty, or contravene any statute made to protect one contracting party from the oppression of another. If, however, no infringement of the law was contemplated by the parties, but an incidental violation of the statute occurs collateral to the contract, the validity of the contract is not affected. Among contracts illegal by statute are those of tradesmen, artificers, workmen, labourers, and others of the same class in their ordinary callings on Sundays, contracts which infringe the Truck Act, the Revenue Acts, or the Factory, Bleach, or Print Works Acts.

III. The consideration required for the validity of a simple contract is a benefit to one party or a detriment to the other party to the contract. In other words, a consideration is the legal equivalent or return for an engagement of any kind. Considerations are of four kinds: 1. A present gift from A. for a future similar gift by B. 2. A present act by A. for a future act by B. 3. A present act by A. for a future gift by B. 4. A present gift by A. for a future act by B. Considerations are also divided into executory and executed.

An executory consideration is one which is to take place. An executed consideration is one which is past.

A benefit to one party or a detriment to the other party being deemed a valid consideration according to law, love or affection, friendship, a mere moral obligation, a voluntary courtesy, the termination of disputes, the performance of an act which the party is under no legal obligation to perform, or a by-gone transaction is an insufficient consideration for a simple contract. Among sufficient considerations are a trust reposed, work or services to one of the parties to the

contract, or for a third party at his request, by-gone services rendered pursuant to a previous request, or where a request is implied by law (as is the case where a man retains the advantage of the consideration), moral obligations, which but for the intervention of some positive rule of law or statutory enactment would be binding if accompanied by an express promise, forbearance of valid or doubtful legal or equitable rights, and the performance of an act which the party is under a legal obligation to perform.

IV. A simple contract must be mutual. Thus a written agreement by A. to serve B. for one year must contain an undertaking by B. to employ A. for that time.

Some contracts are required to be by deed, others in writing, but most contracts may be made verbally.

Contracts required to be by deed are executory gifts of personalty, grants of incorporeal rights, irrevocable contracts to hunt, fish, or shoot, with liberty to take the game or fish obtained, contracts with agents empowering them to execute deeds, assignments of patents, transfers of shares in Joint Stock Companies, sales of ships, contracts of apprenticeship to the sea service, and feoffments, partitions, exchanges, leases, assignments, and surrenders under 8 and 9 Vic., c. 106.

In general, too, corporations can only contract by deed under the corporate seal. To this rule there are exceptions; and these are that corporations may make small contracts of constant occurrence without deed, and that trading corporations are allowed to make mercantile contracts in the same manner as any person. engaged in commercial pursuits.

Contracts required to be in writing are, 1. Agreements that are not to be performed within one year from the making thereof. 2. Contracts, or sales of lands, tenements, or hereditaments, or any interest in or concerning them. 3. Promises by an executor or administrator to answer damages out of his own estate. 4. Promises to answer for the debt, default, or miscarriage of another. 5. Agreements made in consideration of marriage. All the preceding instru