REVISED REPORTS BEING A REPUBLICATION OF SUCH CASES IN THE ENGLISH COURTS OF COMMON LAW AND EQUITY, FROM THE YEAR 1785, AS ARE STILL OF PRACTICAL UTILITY. EDITED BY SIR FREDERICK POLLOCK, BART., D.C.L., LL.D., CORPUS PROFESSOR OF JURISPRUDENCE IN THE UNIVERSITY OF OXFORD. 7 CLARK & FINNELLY; 11 BLIGH (N. S.); WEST; 10 SIMONS; LONDON: SWEET AND MAXWELL, LIMITED, 3, CHANCERY LANE. BOSTON : LITTLE, BROWN & CO. 1901. PREFACE TO VOLUME LI. ch discussed case Is dictum of the f Merton "quod At p. 139 of this volume we have the of Birtwhistle v. Vardill, where the great men of the realm at the parlian nolunt leges Angliæ mutare" received a strict interpretation. Historically the result was correct enough in this sense, that if such a case could have arisen in the thirteenth century the King's counsellors and judges would almost certainly have decided it as the House of Lords did five centuries later. Considered in the light of the general current of modern authority on questions of personal status in relation to domicil, the decision is anomalous. The learning of the judges in the antiquities of the law might have been more critical. They were perhaps excusable at the time for treating that farrago of impudent fictions called the "Mirror of Justices" as a serious authority (p. 168), but hardly so for relying on the false Ingulf, which had already been exposed by Palgrave. Munro v. Munro, p. 103, shows that the whole doctrine of domicil as bearing on legitimacy was still in an immature condition sixty years ago. Jordan v. Norton, p. 508, is a case well known in students' books, perhaps rather because, being concerned with horses, it has a certain remote flavour of sport, than for any other assignable reason. As far as the point of law goes, it is an elementary case of failure to form a contract, the parties never having agreed on the same terms. Hemingway v. Hamilton, p. 497, is very doubtful indeed. No judicial comment on it of any kind has been found. It certainly does not decide, as represented in some oldfashioned text-books, that it is not fraudulent to make a V. contract with the intention of not per breaking it; for it is settled law, and same Court not many years later (Loaa Green, 1846, 15 M. & W. 216, 15 L. J. Ex. 113), that it is fraud to buy goods on credit with the intention of not paying for them. The direct decision on the goodness of a replication de injuria has ceased to be applicable in almost every part of the Englishspeaking world; we are not sure about New Jersey. The secondary point, as to the plea in question being bad if it did not show that the plaintiff completed the fraudulent breach of his contract which he intended from the first, may possibly be supported on the ground that the plea was consistent with the defendants having accepted performance from the plaintiff after knowledge of the fraud, and thereby elected to affirm the contract: see Clough v. L. & N. W. R. Co., L. R. 7 Ex. 26, 34. On the whole Hemingway v. Hamilton is of the least possible profit that a case not overruled can be. We preserve it, with some hesitation, in the absence of judicial censure. Recent text-writers appear to be unanimous in ignoring it, or mentioning it only by way of warning. Chanter v. Hopkins, p. 650, is noteworthy for Lord Abinger's statement as to the difference between a warranty and a condition or integral term of the contract, though the latter may be called a warranty. "I have always considered that to be as sound an exposition of the law as can be," said Martin, B. in the Exchequer Chamber in 1867: Azémar v. Casella, L. R. 2 C. P. 677, 679. F. P. |