Instances of the first kind are afforded by wagering contracts, and policies of fire or marine insurance in which the person effecting such insurance has no interest; of the second. by an agreement to publish libellous matter, or to commit an assault, or to give some particular creditor a preference in view of the debtor's bankruptcy; and of the third class, which are the most numerous, by contracts with alien enemies; for maintenance, i.e., to furnish money for the maintenance of a suit in which the party finding the money has no interest; contrary to good morals; in restraint of marriage, or in consideration of procuring marriage, called "marriage brocage"; in general restraint of trade, etc.

CONTRACTS BY ALIENS, NATURALISATION, ETC.

An alien may now acquire, hold, and dispose of all real and personal property as if he were a natural-born subject. And any alien may become naturalised after five years' residence in the state, by obtaining a certificate of naturalisation under the hand of the Governor and taking the oath of allegiance. But no alien can acquire property in a British ship.

A felon undergoing sentence can neither make a good contract nor enforce contracts made previous to his conviction; but the latter may be enforced by an administrator appointed by the Supreme Court or a Judge thereof, on application of the Crown, or of a creditor.

WRITTEN CONTRACTS-PAROL EVIDENCE WHEN ADMISSIBLE TO VARY.

As a general rule, after a contract has been reduced into writing, parol, or verbal evidence of the intention of the parties is not admissible in order to vary or add to the contract.

But there are exceptions to this rule, viz.: where the writing does not contain all the terms, or where the terms require explanation, or where a mutual mistake has occurred, parol evidence may be adduced in order to complete or explain the

contract.

In regard to contracts required under the Statute of Frauds to be evidenced by writing, and where the contract consists of several papers needing parol evidence to show their connection, such evidence is not admissible unless one of the papers or both contains a reference to the other.

But any of the following matters may always be proved, viz. fraud, intimidation, illegality, want of capacity to contract, want of consideration, or any other matter which, if proved, would render or tend to render the contract, or any part of it, invalid.

1

The lex loci governs the law of contract; that is to say, a contract is invariably interpreted according to the law of the country in which it was made.

SERVICES RENDERED GRATUITOUSLY.

It is noteworthy that, where one person offers his services to another free of charge, he becomes legally bound to use due care in the execution of the transaction as soon as he enters upon its performance. Therefore, if one man undertakes merely to deliver a parcel for another, and loses it, he must make good the loss; and in a case where a man undertook to arrange a fire insurance policy for another merely as an act of friendship, and in so doing omitted some essential which vitiated the right to recover under the policy when a house was burnt down, he was held liable for the damage.

But no liability attaches to the person who makes the gratuitous offer until he enters upon the service-which, of course, he is not bound to do at all.

CONTRACTS IN RESTRAINT OF TRADE.

A contract in general restraint of trade is void; but a man may be restrained from trading (or practising his profession) in a particular place, or within a reasonable distance of it; for instance, A, a physician, sells his practice at X to B; the latter may require him to covenant that he will not practise at X or within a radius of twenty miles of that place.

A tradesman may also be restrained from serving a particular class of customers, or a publican from purchasing beer, except from a particular brewery.

ELEMENTS OF A BINDING CONTRACT.

To a binding contract five elements are (according to Sir W. Anson) essential, viz. :

1. A distinct communication by the parties to one another of their intention, i.e., an offer and an acceptance of that offer.

2. Evidence that the parties intend to affect their legal relations; i.e., the contract must be in a certain form or consideration must be present.

3. Capable contracting parties.

4. A genuine consent expressed in the offer and accept

ance.

5. A legal object.

DISCHARGE OF CONTRACT.

A contract may, according to the same authority, be discharged in five modes:

·

1. By mutual agreement.

2. By its performance; i.e., by fulfilment of the duties which it imposed and satisfaction of the rights which it created.

3. By its breach, upon which a right of action accrues to the party injured.

4. By reason of its performance becoming impossible, e.g., case in which an eminent pianoforte player was prevented from fulfilling an engagement to play at a concert by dangerous illness. In this case there must be no default in the party who fails to perform his part of the agreement.

5. By operation of law; e.g., alteration of a written contract by one party without the consent of the other, bankruptcy of one party, etc.

Contractor's Debts.

GENERAL REMARKS.

By the Contractors Debts Act (Act No. 29 of 1897) the contractor's workmen, or tradesmen who have supplied him with materials, are provided with a means of recovering their claims in a simple and expeditious manner. But, as regards workmen, the work done must not be in respect of a moveable chattel such that the workman could have a lien upon it in virtue of the work done in connection therewith.

For instance, if timber, etc., is delivered to the workman to fashion into a wardrobe, etc., he may retain the article when finished until his charges for the work expended thereon are paid. In other words, he will have a lien on it for his charges, so long as he does not part with the possession. Under this Act the workman or tradesman has, in addition to his ordinary remedy against the contractor, a remedy against the contractee. The term "contractee" means any third person indebted to the contractor in respect of work done or material provided by the workman or tradesman for the contractor, in connection with the contractor's agreement with such third person.

HOW PAYMENT MAY BE OBTAINED.

There are three modes of obtaining payment: 1st. The party may establish his claim in a competent court (i.e., a court having jurisdiction in respect of the amount of his claim) giv

ing evidence of the character of the work or material, etc., and the Judge or justice may then, on his application, give him a certificate of the cause of debt.

He must then serve on the contractee a notice in the form given below (2nd schedule) and a copy of the said certificate; service of such notice will operate as an assignment to the workman or tradesman (to the extent of his debt) of any monies due (or to become due) from the contractee to the contractor; and the contractee shall pay the workman, etc., out of such monies.

2nd. If the contractee should make default in payment of the claim, the workman or tradesman may sue him in his own

name.

3rd. Instead of proceeding by certificate and notice as beforementioned, the party may proceed against the contractor himself; and in this case, he may obtain leave of the court or of the Judge or magistrate thereof to serve a notice of the action on the contractee (in the form given below, 4th schedule) and any monies due by him to the contractor will, after such service, be deemed to be attached in his hands, and he must retain them until the court makes an order. The party may then, if the judgment of the court is in his favour, serve a further notice (2nd schedule) on the contractee and obtain payment as in the first mode.

Leave to serve notice of action may be obtained on the application of the workman, etc.—with proof that the sum sued for is due and owing by the contractor.

2ND SCHEDULE TO CONTRACTORS DEBTS ACT.

To C.D. of etc. (contractee)

Take notice that the work done (or material provided, or material and work provided and done) specified in the certificate, a copy of which is served herewith, having been done (or provided, etc.) in performance of an agreement entered into with you by A.B. of etc. (contractor), who has failed to pay me for such work (or material, etc.): You are hereby required, under the Contractors Debts Act, to pay me on demand the amount specified in the certificate out of any monies now due, or from time to time becoming due, from you to the said A.B. under the said agreement, and on your failing so to do, you will, under the said Act, be liable to legal proceedings at my suit to obtain payment.

4TH SCHEDULE TO CONTRACTORS DEBTS ACT.

In the

Court, etc.

Between E. F. plaintiff and A. B. defendant.

To C. D. of etc. (contractee)

By leave of this court (or of G. H. a Judge or magistrate of this court) and on application of E. F. the plaintiff, you are hereby required to retain in your hands until judgment herein, or as this court otherwise orders, all moneys due or accruing due from you to the said A. B., or if the same shall exceed pounds then pounds thereof (amount of claim).

Dated this

day of

19-.

Judge of the Court

(or magistrate of the Court).

CERTIFICATE FOR WORK, DISCLOSURE OF NAME OF CONTRACTEE, ETC.

If the sum is due for daily, weekly, or monthly wages, a certificate for the amount of sixty days' wages only is to be given the workman. On satisfaction of the debt the assignment ceases, and the workman, etc., must sign a discharge under penalty of forfeiting an amount equal to that of the debt to the contractor or contractee.

The contractor must furnish any workman, etc., who has obtained a certificate, with the name and address of the contractee, under a penalty not exceeding £50. Such penalties are recoverable at the nearest Court of Petty Sessions.

CONTRACTOR LIABLE FOR SUB-CONTRACTOR, ETC.

A contractor is liable under the Act for claims due in respect of the contract by any contractor under him, and a workman, etc., may proceed against the former is if he had been directly employed by him. The Act now extends to claims for material, or material and labour, as well as to those for work and labour; but proceedings in respect of debts for material, or material and labour, must be taken within three months after such debts became due.

In regard to assignments arising after notice to the contractee, the priority of these is determined by the order of time in which the notices are served on him; but all notices served within seven days of the first stand on the same footing, and the contractee is to make no payments until the expiry of such seven days. The above refers to notices served in respect of the same contractor in any one year.