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;

3 YOUNGE & COLLYER, EX. EQ.; 4 MEESON & WELSBY;
MURPHY & HURLSTONE; 1 HORN & HURLSTONE.

SWEET AND MAXWELL, LIMITED, 3, CHANCERY LANE.

BOSTON :
LITTLE, BROWN & CO.

1901.

PREFACE TO VOLUME LI.

At p. 139 of this volume we have the ch discussed case of Birtwhistle v. Vardill, where the f is dictum of the great men of the realm at the parliarif Merton “quod nolunt leges Angliæ mutare" received a suict 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 inake a

Ice

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 English-
speaking 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 Flemingway 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

LORD COTTE

LORD LANG

SIR

JUDGES

OF THE

HIGH COURT OF CHANCERY.

1838–1840.

(1 & 2 Vict.—3 & 4 Vict.)

LORD COTTENHAM, 1836—1841 . .. Lord Chancellor. LORD LANGDALE, 1836-1851. . . Master of the Rolls. Sir LanceloT SHADWELL, 1827-1850 . . Vice-Chancellor.