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cuted consideration, is not recoverable, by reason of the statute (a).

debts.

The legal effect of an account stated is not avoided by Equitable showing that the debt admitted was due from the defendant as trustee, and one for which the only previous remedy was in equity (b). The defendant held goods upon trust to sell and account to the plaintiff for the proceeds, and after selling the goods and repaying an amount advanced by him on the security of the goods admitted a balance due to the plaintiff; it was held that the plaintiff might recover the balance in an action upon the account stated (c). So, where upon dissolution of a partnership the partners account together and strike a balance in favour of one of them, he may recover it in an action upon such statement of account (d). So, if an executor or administrator states an account with a legatee or person entitled to a distributive share of the deceased's estate, admitting that he has received the amount of such legacy or share and holds it for the use of the legatee or person entitled, he may render himself liable upon such admission to an action at law for money received or upon an account stated, although as executor or administrator he could not be sued at law for a legacy or distributive share (e).

ated by fo

ments.

Where a Court of competent jurisdiction adjudges a sum Debts creof money to be paid, a debt or contract to pay it is created reign judg thereby. The judgment may be enforced by the ordinary process of the Court; or it may in general be treated as a distinct contract, on which a new action may be brought (ƒ). The contract created by the judgment of a Court of Record is a contract of record (y).

(a) Lord Falmouth v. Thomas, 1 C. & M. 89.

(b) Remon v. Hayward, 2 A. & E. 666; Roper v. Holland, 3 A. & E. 99; Howard v. Brownhill, 23 L. J. Q. B. 23.

A count for money received will also in general lie against a trustee after an acknowledgment by him that he has received money, and holds it for the use of the cestui que trust. Ib.; and see Edwards v. Lowndes,

1 E. & B. 81, 89.

(c) Howard v. Brownhill, supra.
(d) Foster v. Allanson, 2 T. R. 479;
Wray v. Milestone, 5 M. & W. 21.

(e) See Decks v. Strutt, 5 T. R.
690; Jones v. Tanner, 7 B. & C. 512;
Topham v. Morecraft, 8 E. & B. 972.

(f) Williams v. Jones, 13 M. & W. 628, 633, 634; Carpenter v. Thornton, 3 B. & Ald. 52, 57.

(g) See post, p. 89.

Judgment must be

certain

sum.

Upon the same principle, where the judgment of a foreign or colonial Court has adjudicated a certain sum of money to be due from one person to another, a debt or contract to pay the amount is created, which may be enforced by an action in the Courts of this country (a). The judgment not being matter of record in this country, the debt created by it here is a simple contract debt; and there is no difference between colonial and other foreign judgments in this respect (b).

The judgments of the Irish and Scotch Courts are considered as foreign judgments and raise an implied contract to pay the amount of the judgment, upon which an action may be maintained in the English Courts (c). Also, an action may be maintained upon a decree of a colonial Court of Equity, ordering the payment of money (d). An action will lie in the English Courts upon a decree of the Court of Session in Scotland, in a suit for a divorce, awarding costs (e), if the amount of costs is finally ascertained (ƒ).

The judgment of the foreign Court must be final, and final and for create a certain debt, in order to support an action in this country (g). A foreign judgment ordering the defendant to pay a certain sum to the plaintiff on a certain day, first deducting thereout the defendants' costs to be taxed by the proper officer, was held not to raise an implied contract to pay until taxation of the costs, because until then there was no final judgment for a certain amount (h); but the pendency of an appeal in the foreign Court is no bar to such action, though it may afford ground for the equitable interposition of the Court in this country, in which the action is brought, to stay proceedings ().

Grounds on which fo

A final judgment of a foreign Court is taken to be conclu

(a) Walker v. Witter, 1 Doug. 1, 5; Hall v. Odber, 11 East, 118, 124; Atkinson v. Lord Braybrooke, 4 Camp. 380; Russell v. Smyth, 9 M. & W. 810; Smith v. Nichols, 5 Bing. N. C. 208, 221.

(b) Philpott v. Adams, 7 H. & N. 888; 31 L. J. Ex. 421.

(c) Collins v. Matthew, 5 East, 473; Harris v. Saunders, 4 B. & C. 411; Douglas v. Forrest, 4 Bing. 686.

(d) Sadler v. Robins, 1 Camp. 253, 254; Henley v. Soper, 8 B. & C. 16;

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ment may

tioned.

sive between the parties upon the merits of the matter adju- reign judgdicated upon; consequently in an action founded upon it in be questhis country, no defence can be raised which was open to the defendant in the original suit (a). But in such action the defendant may avoid the effect of the foreign judgment by showing a want of jurisdiction in the foreign Court (b); that he was not summoned and had no notice of the proceedings in the suit, which was contrary to natural justice (c); that the judgment was obtained by fraud (d); that there is a manifest error on the face of the judgment, showing the conclusion to be erroneous either in law or in fact; and for this purpose the reasons assigned in the judgment and forming part of it may be examined (e), as where the judgment appeared to have decided according to the law of the wrong country, or to have mistaken the law of another country (f); but it is not open to show by extrinsic evidence that the foreign Court has come to an erroneous conclusion either in law or in fact as to the matter adjudicated upon (g), or that fresh evidence has been discovered since the judgment, showing it to be erroneous (h).

tutes.

A debt created by foreign or colonial statutes may be en- Debts created by forced in this country as a simple contract debt, as a debt for foreign stacalls by a company founded on colonial Acts (i); though a debt arising under an Act of Parliament in this country, as a debt for calls under the Companies Clauses Consolidation. Act, is treated in general as a specialty debt (j)·

(a) Henderson v. Henderson, 6 Q. B. 288; Bank of Australasia v. Nias, 16 Q. B. 717; De Cosse Brissac v. Rathbone, 6 H. & N. 301; 30 L. J. Ex. 238; and see 2 Smith's L. C. 5th ed. 686.

(b) See Robertson v. Struth, 5 Q. B. 941; Vanquelin v. Bouard, 33 L. J. C. P. 78.

(c) Buchanan v. Rucker, 1 Camp. 63; 9 East, 192; Ferguson v. Mahon, 11 A. & E. 179; Reynolds v. Fenton, 3 C. B. 187.

(d) Bowles v. Orr, 1 Y. & C. Ex. 464.

(e) Simpson v. Fogo, 1 J. & H. 18;

1 H. & M. 195; 29 L. J. C. 657; 32
ib. 249; Reimers v. Druce, 23 Beav.
150; 26 L. J. C. 196.

(f) lb.; and see Scott v. Pilkington,
2 B. & S. 11, 41; 31 L. J. Q. B. 81,
89; Novelli v. Rossi, 2 B. & Ad. 757.

(g) De Cosse Brissac v. Rathbone, 6 H. & N. 301; 30 L. J. Ex. 238.

(h) De Cosse Brissac v. Rathbone, supra.

(i) Welland Ry. Co. v. Blake, 6 H. & N. 410; 30 L. J. Ex. 161.

(j) Cork and Bandon Ry. Co. v. Goode, 13 C. B. 826; 22 L. J. C. P. 198; and see Shepherd v. Hills, 11 Ex. 55; 25 L. J. Ex. 6; post, p. 96.

76

under seal.

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Contracts CONTRACTS under seal are formed by a deed sealed and delivered. They involve the element of agreement inasmuch as the parties by executing the deed agree to the matter of the contract; but they derive their legal effect solely from the formality of the deed which is used to witness the agreement, and not from the mere fact of agreement as in the case of simple contracts (a).

Deeds.

Signing.

In general it is optional with the parties to put agreements into the form of a deed under seal. But agreements relating to some matters are required by statute to be made by deed. Thus, certain leases are required by the statute 8 & 9 Vict. c. 106, s. 3, to be made by deed. A gratuitous promise, that is, one made without a consideration, must be made by deed in order to give it validity (b).

"A deed is a writing or instrument written upon paper or parchment, sealed and delivered, to prove and testify the agreement of the parties whose deed it is to the things contained in the deed. . . . A deed cannot be written upon wood, leather, cloth or the like but only upon parchment or paper, for the writing upon them can be least vitiated, altered or corrupted" (c). The contents of a deed may be written or printed, in ink or in pencil (d). A deed is subject to all the rules of law relating to written documents (e).

The execution of a deed consists of sealing and delivery. Signing a deed, though usual, is no part of the formality at common law (f). It is made necessary in some instances by particular statutes, and sometimes by the special terms of

(a) See ante, p. 11.

(b) See ante, p. 10, and post, p. 84. (c) Sheppard's Touchstone, p. 50; Co. Lit. 35 b.

(d) See Schneider v. Norris, 2 M. & S. 286; Geary v. Physic, 5 B. &

C. 234, 237.

(e) See post, Chap. I, Sect. IV, "Contracts in Writing."

(f) Sheppard's Touchstone, by Preston, p. 56; Tupper v. Foulkes, 9 C. B. N. S. 797, 803.

the authority or power in pursuance of which the deed is executed. The Statute of Frauds, which requires contracts relating to certain matters to be made in writing and signed, does not apply to contracts under seal; therefore contracts under seal, though relating to matters within that statute, do not require to be signed in addition to the ordinary formalities of the execution of the deed (a).

The ceremony of sealing is sufficiently performed if a Sealing. seal or other instrument be impressed on the deed with an intent to seal it, although no impression appear; and a deed purporting to have been sealed and delivered, in the absence of evidence to the contrary, will be presumed to have been properly sealed (b). An instrument purporting to be signed only and not scaled, and which in fact was signed only and not sealed, or intended to be sealed, as a deed, was held to be merely a simple agreement, notwithstanding a seal appeared opposite the signatures of the parties (c).

One seal will serve for several persons, if it sufficiently appears to have been intended and used as the seal of each (d); but a seal used and intended for the seal of one person only will not afterwards supply the want of sealing by another (e). Certain parties to a deed were described therein as members of a corporation, and the deed purported to be made and executed by the corporation and was sealed with a seal purporting to be the seal of the corporation; it was held that such seal could not be taken as the seal of those parties as individuals, so as to entitle them to be considered as parties to the deed in their individual character and to sue upon the deed in their individual capacity (ƒ).

Delivery is necessary to complete the execution of a deed and to render it binding. Delivery may be effected by merely handing over the possession of the deed to the other party, or by authorizing the other party to take possession of the deed. It may also be effected by giving the posses

(a) Aveline v. Whisson, 4 M. & G. 801; and see Cooch v. Goodman, 2 Q. B. 580, 597; Cherry v. Hemming, 4 Ex. 631, 636.

(b) See R. v. St. Paul's Corent Garden, 7 Q. B. 232, 238, (d); Talbot v. Hodson, 7 Taunt. 251; Cle

ment v. Gunhouse, 5 Esp. 83.

(c) Clement v. Gunhouse, 5 Esp. 83. (d) Ball v. Dunsterville, 4 T. R. 313.

(e) Cooch v. Goodman, 2 Q. B. 580, 598.

f) Cooch v. Goodman, 2 Q. B. 580.

Delivery.

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