viz., that there must be (present or future) consideration to support a promise; (2) the doctrine of moral obligation (as per Lord Mansfield); and (3) the old canonical view of consideration as having a merely evidentiary value. 34 The theory of moral obligation may be considered as disposed of; but not so the canonical or evidentiary view of consideration. In the case of Bradford v. Roulston, in 1858, it was held, that a past consideration granted at the request of the defendant was sufficient to support the defendant's subsequent promise in writing. The facts were fairly simple; the defendant introduced to the plaintiff two friends desirous of buying a ship but lacking £55 of the price; then, at the defendant's request, the plaintiff allowed the purchasers credit for the £55; subsequently, the defendant guaranteed in writing the payment of the £55. Plaintiff sued for the amount; and it was held, that because the past consideration of allowing the purchasers credit had been at the defendant's request, therefore it was sufficient to support the defendant's subsequent promise. In this case the authorities were carefully quoted, and the rule in Lampleigh v. Brathwait strictly adhered to. However, it is considered by some writers that Lampleigh v. Brathwait and Bradford v. Roulston must either be supported on some different ground or abandoned. For according to Pollock, "there is no satisfactory modern instance of this doctrine, and it would perhaps now be held that the subsequent promise is only evidence of what the parties thought the service worth."35 And likewise Anson, "the correct view seems to be that the subsequent promise is only binding when the request, the consideration, and the promise form substantially one transaction, so that the request is virtually the offer of a promise, the precise extent of which is hereafter to be ascertained."36 37 The less artificial and more logical reason here suggested by the two modern writers was actually adopted by Bowen, L.J., in Stewart v. Casey, but without discarding the old ratio decidendi of Lampleigh v. Brathwait and Bradford v. Roulston. In Stewart v. Casey, Lord Justice Bowen said: "Even if it were true, as some scientific students of law believe. 34 8, Irish Common Law Reports, 468. 37 L. R. [1892]. 1 Ch. 115. that a past service cannot support a future promise, you must look at the document and see if the promise cannot receive a proper effect in some other way. Now the fact of a past service raises an implication that at the time it was rendered it was to be paid for, and, if it was a service which was to be paid for, when you get in the subsequent document a promise to pay, that promise may be treated either as an admission which evidences, or as a positive bargain which fixes, the amount of that reasonable remuneration, on the faith of which the service was originally rendered. So here for past services there is ample justification for the promise to give the third share." The dictum of Bowen, L.J., is the last word of legal decision on the subject of past consideration. The same principle was admitted by the defendant in Marshall v. McLaughlin,38 in which the present writer was plaintiff; in which case the actual promise was verbal merely, whereas in Bradford v. Roulston and Stewart v. Casey it was in writing. Thus we see that the present law requiring consideration to support a promise is highly composite; it is the joint product of the above-mentioned decisions, which apart from those of Lord Mansfield-are consistent or at least reconcilable with each other. There is the artificial Common-law rule, itself borrowed from Equity, that there must be (present or future) consideration; there is the equally artificial Common-law exception to this rule, viz., the exception in favour of past consideration, laid down in the cases of Lampleigh v. Brathwait and Bradford v. Roulston. There is also the old canonical rule, traceable back to the Middle Ages and the writings of Felinus and Molina, which regards the consideration for a promise as having a merely evidentiary value; this evidentiary view of consideration is still supported by the modern authorities on Lampleigh v. Brathwait and Bradford v. Roulston, and especially by Bowen, L.J., in Stewart v. Casey; although these modern authorities fall far short of upholding the old canonical view, viz., that the consideration necessary to support a promise is only important as having a merely evidentiary value as to the existence of the agreement. R. L. MARSHALL. 39 In the Lambeth County Court of Surrey, March, 1905. N.B.] SUPREME COURT DECISIONS. WEST v. CORBITT. Negligence-Railway-Prescription Damage or Injury "by Reason of Construction "-Contractor-Transcontinental Railway Commissioners-Railway Act, sec. 306. Sec. 15 of The National Transcontinental Railway Act provides that "the Commissioners shall have, in respect to the Eastern Division, .. all the rights, powers, remedies and immunities conferred upon a railway company under the Railway Act." Held, Fitzpatrick, C.J., and Idington, J., dissenting, that the provision in sec. 306 of the Railway Act that “all actions or suits for indemnity for any damage or injury sustained by reason of the construction or operation of the railway shall be commenced within one year," etc., applies to such an action aganist the Transcontinental Railway Commissioners and also against a contractor for construction of any portion of the eastern division. Held, per ANGLIN, J., that it applies also to an action against a contractor for constructing a railway for a company incorporated by Act of Parliament. Appeal dismissed with costs. F. R. Taylor, for appellant. STONE v. CANADIAN PACIFIC R. W. CO. ONT.] Railway-Company Negligence-Foreign Car Protection of Employees-R. S. C. (1906), ch. 37, sec. 265, sub-sec. 1 (c). The C. P. R. Co. had received a car with freight from the Wabash Co., and before returning used it in a shunting operation. A brakesman on top of this car, which was approaching another with which it was to be coupled, saw that the knuckles of the coupler on each car were closed and, being unable to signal the engineer to stop, climbed down a side ladder, none being on the ends, and tried to reach round to the lever of the coupler. In doing so he held on with his left hand to a rung of the ladder only twenty inches above where his left foot was placed. There was no room for his other foot and as the train went over a crossing he was jolted off and fell with his right arm under the wheels of the car, injuring it so that it had to be amputated. In an action against the company, the jury found that the latter was negligent in not having end ladders on the Wabash car nor levers of sufficient length. A verdict for the plaintiff was set aside by the Court of Appeal (26 Ont. L. R. 121). Held, reversing the latter judgment, that the company was liable for non-compliance with the provisions of sec. 264, sub-sec. 1 (c) of the Railway Act. FITZPATRICK, C.J., dissented on the ground that the plaintiff's own negligence caused the accident. Appeal allowed with costs. Creswicke, K.C., and C. C. Robinson, for appellant. Hellmuth, K.C., and MacMurchy, K.C., for respondents. ONT.] ROBINSON v. GRAND TRUNK R. W. CO. Special Railway Company Carriage of Passenger Contract Notice to Passenger of Conditions-Negligence-Exemption from Liability. P., at Milverton, Ont., purchased a horse for a man in another town, who sent R. to take charge of it. P. signed the way-bill in the form approved by the Board of Railway Commissioners, which contained a clause providing that if the consignee or his nominee should be allowed to travel at less than the regular fare to take care of the property the company should not be liable for any injury to him whe ther caused by negligence or otherwise. R was not asked to sign the way-bill though a form endorsed provided for his signature and required the agent to obtain it. The waybill was given to R., who placed it in his pocket without examining it. On the passage he was injured by negligence of the company's servants. Held, that B. was not aware that the way-bill contained conditions. Held, also, FITZPATRICK, C.J., dissenting, that the company had not done all that was incumbent on them to bring notice of the special condition to his attention. Judgment of the Court of Appeal (27 Ont. L. R. 290), reversed, and that of the trial Judge (26 Ont. L. R. 437), restored. Appeal allowed with costs. McKay, K.C., and Haight, for appellant. MERRITT v. TORONTO. ONT.] Riparian Rights—Interference-Evidence. M., claiming to be a riparian owner on the shore of Ashbridge Bay (part of Toronto harbour), claimed damages from, and an injunction against, the city for interference with his access to the water when digging a channel along the north side of the bay. Held, affirming the judgment of the Court of Appeal (27 Ont. L. R. 1), by which an appeal from a Divisional Court (23 Ont. L. R. 365), was dismissed, that the evidence established that between M.'s land and the Bay was marsh land and not land covered with water as contended, and, therefore, M. was not a riparian owner. Appeal dismissed with costs. Mowat, K.C., for appellant. Geary, K.C., and Colquhoun, for respondent. |