would have been sufficient to support the decision without passing upon the general question of principle at all. He said that on the facts of certain authorities "there was a legal right to the performance of the very act which was bargained for it is not so here." Looking at the pleadings, in fact, we find a declaration on a promise, in consideration of delivering (not a promise to deliver) to the defendant a certain cargo of coals, to unload them at a certain rate per day. To this there is a plea, in substance, that the plaintiffs were already bound by an existing contract to deliver the same coals to the order of a third party, who ordered them to deliver to the defendants. Thus the consideration relied on by the plaintiff is neither more nor less than the performance of what he is already bound to a third party to do for the discharge of the cargo at a certain rate is the business of the defendant, not of the plaintiff. But I am unable (and I say it, not for the first time, after repeated perusal and reconsideration of the case at intervals extending over many years) to satisfy myself of what the Court intended, as matter of law, to decide, or thought it was deciding. No similar point appears to be raised in any reported English case of our own time, and therefore it can hardly be thought that the matter is of any great practical importance. As a speculative exercise, however, it would be hard to find a prettier puzzle. Three different opinions have been maintained by about equal numbers of learned persons, as the reader, if he has curiosity enough to follow the quest, may see more at large in the current edition of my book on Contract; I am driven to mention this as being, I believe, the only English publication in which the discussions of the principle by some very learned American brethren have been referred to. For a while, many years ago, I was taken with the notion that, if a performance cannot be a good consideration, still less can the promise of it be so; but I now think this is a sophism. and it seems Wilde, B. would have agreed so far. The most surprising thing about the whole controversy is that Leake's opinion, expressed by him in his classical treatise with his usual clearness but also in his usual unobtrusive manner, was overlooked for many years by all the disputants. Another surprising but not quite so surprising fact is that some recent text-writers on the law of contract affect to treat the authority of Scotson v. Pegg and of Shadwell v. Shadwell, 9 C. B. N. S. 159, which is even more nebulous if anything, as free from doubt. The rule laid down in Pledge v. Buss, p. 281, as to the rights of a surety extending to securities taken after the contract of suretyship, is settled equity in this country. Whether by oversight or on purpose, the framers of the Indian Contract Act paid no regard to it (see s. 41 of that Act). Yet it is a deliberate statement made by Page Wood, V.-C. in accordance with a previous opinion of the Lords Justices. Of Churton v. Douglas, p. 56, it is enough to say that it is still a leading case on the nature and incidents of goodwill. In Seymour v. Greenwood, p. 563, a profitable authority on the ways in which a master may be liable even for wilful wrongs committed by a servant in the course of his employment, the historian of manners may note that the conductor of an omnibus was still officially called a guard in 1861. We still know the guard on British but not on American railways. From Morgan v. Ravey, p. 494, the discreet student may learn somewhat concerning the ambiguity of "implied promise." Castle v. Sworder, p. 860, gives us the refined but equitable and useful doctrine of constructive delivery in a special application. In Lyall v. Edwards, p. 547, we have a clear example of a successful equitable plea under the Common Law Procedure Act. There are not too many such. Wake v. Harrop, p. 816, is another, but there is a good deal to be said for Baron Bramwell's view (p. 822) that the plea was well enough at common law. We learn from Emblen v. Myers, p. 380, that exemplary damages are admissible, under peculiar circumstances, in an action for negligence; the grounds for admitting them being matter of moral substance and not technical. Finally we have to regret that the mechanical considerations which must largely govern the making up of our volumes have not allowed us to exhibit the short way of the Court of Exchequer with Re Fernandes, p. 784, in company with the classical judgment of Willes, J. on the same facts reported in 10 C. B. N. S. and to be reproduced in the Revised Reports as soon as may be. F. P. |