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poor under a statute may, in some instances, be sued in that character (h).

However, a plaintiff cannot recover against several overseers of a parish, for money lent to one of them, in his capacity of overseer, unless the rest have expressly promised repayment (i). An overseer has not, by virtue of his office, any power to borrow money for parochial purposes: if he borrow money, even for such purposes, he becomes individually liable ().

A churchwarden, who employs a person to make a plan of the church, in order that the plan may be laid before certain commissioners for building new churches, is personally liable to such person (1).

Succeeding churchwardens, though only so de facto, may sue their predecessors, though they be not the officers immediately preceding them, for money received by the defendants for the use of the parish (m). And where in the parish of 4. two churchwardens were elected for the township of B., and two others for the rest of the parish, and separate rates were made for these divisions; it was held, that the churchwardens elected for the township of B. might maintain an action against their predecessors for money remaining in their hands; and were not bound to make all the present or late churchwardens of the parish, plaintiffs or defendants (n). But a surveyor of highways cannot maintain an action against the late surveyor, until his accounts have been settled and allowed, or disallowed, in the manner pointed out by the 13 G. 3, c. 78, s. 48 (o). And it has been held, that churchwardens cannot commence a suit in the Spiritual Court in their own names, after their year is expired; but that, if commenced within, they may proceed in it after the year (p).

Churchwardens who expend money in the necessary repairs of the church, may make a rate to reimburse themselves; but

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cannot maintain an action for contribution against any one of the parishioners, who joined at a vestry in signing an order for the repairs (q). And it has been decided that vestrymen, who, at a vestry meeting sign a resolution, ordering the parish surveyor to take steps to defend an indictment against the parish for not repairing a road, are not liable to the attorney employed by the surveyor; because the conduct of the business was more peculiarly the province of the surveyor, who could afterwards have charged the parish in his account, and been reimbursed by a regular parish rate (r). The surveyor of a turnpike road, employed by, and acting for, the commissioners, is not personally liable to parties performing work in repairing the roads; for such surveyor is the mere servant of the commissioners (s).

The statute 55 G. 3, c. 137, s. 6, prohibits churchwardens, overseers of the poor, collectors of poors' rates, and other persons concerned in the providing for, management, or direction of the poor (t), from " providing, furnishing, or supplying, for profit, any goods, materials, or provisions for the use of the workhouse, or otherwise for the support and maintenance of the poor in the parish," while they hold their appointments; and from being, directly or indirectly, "concerned in any contract relating thereto," under a penalty of 1007. (u); unless such persons shall obtain the certificate of two magistrates authorising them so to do, &c.

This enactment renders it illegal for a farmer to supply the produce of his lands to the poor of the parish of which he is churchwarden, even at a fair market price (x). But it does not prohibit the supply to an individual pauper, upon a particular occasion; it extends only to a supply to the workhouse, and the poor, generally (y).

The 59 G.3, c. 12, s. 17 (2), enacts that the churchwardens and overseers of a parish shall take and hold, in the nature of a body corporate, for and on the behalf of the parish, all buildings, lands,

(q) Lanchester v. Frewer, 2 Bing. 361; 9 Moore, 688, S. C.

(r) Sprott v. Powell, 3 Bing. 478; 11 Moore, 398, S. C.; Hendebourck v. Langton, 3 C. & P. 566; 10 B. & C. 546, S. C.

(s) Pochin v. Powley, 1 Bla. R. 670. (t) See West v. Andrews, 2 D. & R. 184; 1 B. & C. 77, S. C.

(u) See precedent of declaration in

debt for the penalty, 2 Chitty Pl. 5th ed. 516c; West v. Andrews, 2 D. & R. 184; 1 B. & C. 77, S. C.

(x) Pope v. Backhouse, 2 Moore, 186; 8 Taunt, 239, S. C.

(y) Proctor v. Manwaring, 3 B. & Ald. 145.

(z) Woodcock v. Gibson, 4 B. & C, 462. See further, post, 236.

and tenements belonging to the parish. Where parish land was occupied by A., and he paid rent to the churchwardens, and they executed a lease of the same land for a term of years to B., and gave A. notice of the lease; it was decided, in an action for use and occupation, by B. against A., that the latter was not estopped by having paid rent to the churchwardens from disputing B.'s title, and that the latter could derive no title from the churchwardens alone (z).

(z) Phillips v. Pearce, 8 D. & R. 43; 5 B. & C. 433. S. C.

234

CHAPTER III.

OF THE SUBJECT MATTER OF CONTRACTS (a).

PARTIES are allowed the fullest latitude with regard to the subject matter of their agreements. The law only requires, that no illegal object be embodied in the consideration, or the matter stipulated to be performed or omitted. Subject to this exception, there is no encroachment on the liberty of contracting. The agreement may relate to a past, a present, or a future transaction (b); it may have reference to a thing itself, or to the mere use or possession of it. And it is, in general, no legal objection to a contract, that the subject matter is of a trifling, unimportant, or ridiculous nature (c).

SECTION I.

OF CONTRACTS NOT UNDER SEAL RESPECTING REAL PROPERTY.

1st. Of Agreements for the Purchase of Real Property.

1. In general.

2. How they are affected by the Statute of Frauds.
3. Of an Action by the Vendor against the Vendee, on
the Contract to purchase real Property.

4. Of an Action by the Vendee against the Vendor,
upon such Contract.

2ndly. Of Contracts not under Seal, between Landlord and Tenant.

(a) See 1 Pothier on Contracts, by Evans, pt. 1, c. 1, s. 4; French Civil Code, bk. 3, tit. 3, sec. 3.

(b) F. N. B. 145 a; Plowd. 308 a ;

Com. Dig., Covenant (A 1).

(c) See post, Index, Wagers; 1 Pothier, 81.

1. To take, assign, and surrender Premises.

1. When an Instrument amounts to a Demise,

or a Contract to let in Futuro.

2. When the Letting must be in Writing under the Statute of Frauds.

3. Of a Tenancy from Year to Year.

4. Of the Statute of Frauds as to an Assignment and Surrender of a Term.

5. Of the Tenant being estopped from disputing the Landlord's Title.

2. Of the Tenant's liability to Repair.

3. Of Taxes as between Landlord and Tenant.
4. Of Notices to quit.

1. When necessary.

2. By whom to be given.

3. To whom.

4. When they should expire.

5. Form and Effect of them in other respects,

and how waived.

5. Of Fixtures.

1. In general.

2. Between Landlord and Tenant.

1. Independently of Contract.

2. By Contract.

3. Between out-going and in-coming Tenant.

6. Of away-going Crops.

7. Of the common Action for Use and Occupation.

1st. Of Contracts relating to the Purchase of Real Property.

1. IN GENERAL.

Capacity to Purchase.-Sir Edward Sugden, in his excellent treatise on the Law of Vendors and Purchasers of Estates (d), considers that incapacity to purchase real property is, by the rules of law and equity, of three different kinds; 1st, absolute; 2ndly, to hold, although not to purchase; and 3rdly, to purchase, except sub modo.

(d) 8th ed. cap. 14, page 595 to 617.

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