judgment has been given for a plaintiff the right of action is discharged and replaced by the judgment. On the other hand, if a judgment is given in favour of the defendant, the judgment acts as an estoppel, that is, it supersedes or replaces the right of action and estops or prevents the plaintiff from bringing another action for the same cause.

Bankruptcy in certain cases acts as an estoppel by preventing a creditor from suing his debtor for the amount of his debt, and when the bankrupt has obtained his discharge the former creditor is estopped from suing for any balance of the debt that he has not received. Further, if a party should make any unauthorised alteration in a material part of a written document he is estopped from attempting to enforce it.

Discharge of Contract by Impossibility of Performance.

A contract to do a physically impossible thing, e.g., to touch the sky, is void ab initio (from the beginning); as also, as a rule, is a contract relating to subject matter which has ceased to exist at the time of making the contract. If the impossibility arises subsequently the contract usually holds good, as for instance in the case of Kearon v. Pearson (1861), where A agreed to deliver a cargo to a boat in the usual time and, owing to delays caused by weather, it was impossible for him to carry out his contract; and the court held that neither the contract nor the condition was put an end to. Similarly, in Thornsett and Fehr v. Youills Ltd. (1920), it was held that, on a contract for the sale of unascertained goods of a specified brand and of a particular year, the sellers cannot, in the absence of a special stipulation, set up as a frustration of the contract the non-manufacture of such goods in the year in question.

Exceptions. There are, however, certain exceptions to this

rule

(a) When the impossibility is caused by law, e.g., an Act of Parliament being passed after the contract is made and rendering its performance illegal; or even a temporary prohibition in pursuance of statutory powers may terminate the contract, as was held in the case of Metropolitan Water Board v. Dick Kerr and Co. (1918), where D. & Co. entered into a contract to construct certain works for the Board, with a clause in the contract that the Board's engineer could for good cause grant an extension of time for the completion of the work. The Ministry of Munitions, under statutory powers, ordered the cessation of work on the contract. D. & Co. claimed that this act put an end to the contract, while the Board said that the power in the contract enabling them to grant an extension covered the circumstances.

It was held that the contract was put an end to. If the impossibility is caused by a lawful act of the Government it will excuse performance, for example, in Re Shipton Anderson and Co. v. Harrison Bros. and Co.'s Arbitration (1915), where the Government requisitioned specific goods in the seller's hands before the property in them had passed to the purchaser.

(b) When the performance depends on the continued existence of a given person or thing, the existence of which the parties must have known to be necessary to the fulfilment of the contract, a condition is implied that impossibility arising from that person or thing ceasing to exist, either naturally or in a condition fit for the purpose of the contract, without the fault of the party liable to perform the contract, shall excuse the performance. Thus, in Nickoll and Knight v. Ashton Edridge and Co. (1901), a contract was made in October, 1899, whereby A sold to B goods to be shipped by a certain steamship at an Egyptian port in January, 1900, and to be delivered to B in England, and the contract provided against prohibition of export, blockade, or hostilities preventing shipment. In December, 1899, the ship was wrecked through no fault of A, and was so much damaged as to render impossible her arrival at the port of loading in January, 1900, and B sued for failure to ship the cargo in accordance with the contract. It was held that the contract must be construed as subject to an implied condition that, if through no fault of A, the ship had ceased to exist for the purpose of shipping cargo, the contract must be treated as at an end. In another case, that of Robinson v. Davison (1871), an artiste agreed to play at a concert but fell dangerously ill, and it was decided that no action would lie for her breach of contract. Also, in the leading case of Taylor v. Caldwell (1862), where an agreement was entered into to let a music hall and it was burned down, the contract was held to be terminated. Several similar cases arose on the letting and hiring of seats to view the Coronation procession of 1902. It was held in Blakely v. Muller (1903) that the rights of the parties must be ascertained as at the time when performance became impossible, and the contract is not void ab initio, but both parties are excused further performance under the contract, so that money already paid could not be recovered. There were many similar cases during the Great War, and those contracts were held in Tamplin Steamship Co. v. Anglo-Mexican, etc., Co. (1916) to be terminated because the change of circumstances had destroyed the object of the contract. Any contract involving trading or commercial intercourse of any kind with the enemy is unlawful, and therefore any such contract becomes, on the outbreak of war, impossible of further performance. Even if neither party is himself an enemy, if the contract is executory it is put

an end to absolutely; but if the contract was entered into before the war with a person who becomes then an alien enemy, the contract is not necessarily put an end to if its further performance does not involve the doing of an illegal act, so that, e.g., as in Halsey v. Lowenfeld (1916), an enemy lessee can be sued for any rent accrued during the war; and it was held in Seligman v. Eagle Insurance Co. (1917) that continued receipt of premiums on a policy of life insurance is not deemed intercourse with the enemy, but in the event of the death of the assured the right of his executors to demand payment of the policy moneys is suspended during the war.

Discharge of Contract by Bankruptcy.

Where one of the parties to a contract is adjudged bankrupt, the rights and liabilities under the contract pass to the trustee in bankruptcy; but the trustee cannot enforce contracts for personal services unless the bankrupt is willing to render such services. The trustee may disclaim, i.e., abandon, unprofitable contracts, in which case if the other party suffers any loss he may prove in the bankruptcy for the amount of his loss. Where the contract is not disclaimed by the trustee, the other party may, in the case of a contract to deliver non-specific goods by instalments, refuse to deliver further instalments unless he is paid for them on delivery. Further, such party has the right to apply to the Court to rescind the contract, which it may do on such terms as it considers just, either as to payment to the trustee or proof against the estate, as the case may be.

It was held that the contract was put an end to. If the impossibility is caused by a lawful act of the Government it will excuse performance, for example, in Re Shipton Anderson and Co. v. Harrison Bros. and Co.'s Arbitration (1915), where the Government requisitioned specific goods in the seller's hands before the property in them had passed to the purchaser.

(b) When the performance depends on the continued existence of a given person or thing, the existence of which the parties must have known to be necessary to the fulfilment of the contract, a condition is implied that impossibility arising from that person or thing ceasing to exist, either naturally or in a condition fit for the purpose of the contract, without the fault of the party liable to perform the contract, shall excuse the performance. Thus, in Nickoll and Knight v. Ashton Edridge and Co. (1901), a contract was made in October, 1899, whereby A sold to B goods to be shipped by a certain steamship at an Egyptian port in January, 1900, and to be delivered to B in England, and the contract provided against prohibition of export, blockade, or hostilities preventing shipment. In December, 1899, the ship was wrecked through no fault of A, and was so much damaged as to render impossible her arrival at the port of loading in January, 1900, and B sued for failure to ship the cargo in accordance with the contract. It was held that the contract must be construed as subject to an implied condition that, if through no fault of A, the ship had ceased to exist for the purpose of shipping cargo, the contract must be treated as at an end. In another case, that of Robinson v. Davison (1871), an artiste agreed to play at a concert but fell dangerously ill, and it was decided that no action would lie for her breach of contract. Also, in the leading case of Taylor v. Caldwell (1862), where an agreement was entered into to let a music hall and it was burned down, the contract was held to be terminated. Several similar cases arose on the letting and hiring of seats to view the Coronation procession of 1902. It was held in Blakely v. Muller (1903) that the rights of the parties must be ascertained as at the time when performance became impossible, and the contract is not void ab initio, but both parties are excused further performance under the contract, so that money already paid could not be recovered. There were many similar cases during the Great War, and those contracts were held in Tamplin Steamship Co. v. Anglo-Mexican, etc., Co. (1916) to be terminated because the change of circumstances had destroyed the object of the contract. Any contract involving trading or commercial intercourse of any kind with the enemy is unlawful, and therefore any such contract becomes, on the outbreak of war, impossible of further performance. Even if neither party is himself an enemy, if the contract is executory it is put

an end to absolutely; but if the contract was entered into before the war with a person who becomes then an alien enemy, the contract is not necessarily put an end to if its further performance does not involve the doing of an illegal act, so that, e.g., as in Halsey v. Lowenfeld (1916), an enemy lessee can be sued for any rent accrued during the war; and it was held in Seligman v. Eagle Insurance Co. (1917) that continued receipt of premiums on a policy of life insurance is not deemed intercourse with the enemy, but in the event of the death of the assured the right of his executors to demand payment of the policy moneys is suspended during the war.

Discharge of Contract by Bankruptcy.

Where one of the parties to a contract is adjudged bankrupt, the rights and liabilities under the contract pass to the trustee in bankruptcy; but the trustee cannot enforce contracts for personal services unless the bankrupt is willing to render such services. The trustee may disclaim, i.e., abandon, unprofitable contracts, in which case if the other party suffers any loss he may prove in the bankruptcy for the amount of his loss. Where the contract is not disclaimed by the trustee, the other party may, in the case of a contract to deliver non-specific goods by instalments, refuse to deliver further instalments unless he is paid for them on delivery. Further, such party has the right to apply to the Court to rescind the contract, which it may do on such terms as it considers just, either as to payment to the trustee or proof against the estate, as the case may be.