saries, and persons under any kind of duresse, are incapable of entering into an agreement. 1 Bacon's Abridgement, 67.

Aliens, also, whether friends or enemies are in some respects under the like disabilities. An alien cannot legally enter into an agreement for the purchase of a free hold estate, or of a lease hold except for an habitation while residing in the realm. But the disabilities may be removed by a naturalization, or an act of the legislature. By 29th Charles II. c. 3. s. 4. 17, made perpetual by 1 Jas. 2. c. 17. s. 5.Also by the laws of N. Y. Sess. 10, c. 44. s. 11. 15. No action can be brought, whereby an executor or administrator is charged upon any special promise to answer damages out of his own estate; or against any person to answer for the debt, default, or miscarriage of another, or to charge any person upon any agreement made upon consideration of marriage; or upon any contract or sale of lands, tenements, or hereditaments, or any interest concerning them; or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing signed by the party to be charged therewith, or by some other person by him thereunto properly authorized.

Also, that no contract for the sale of goods, wares, or merchandise, for the price of 10l. sterling or upwards, shall be allowed to be good, unless the buyer shall accept part of the goods.so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the said parties, or their agents lawfully authorized; except for lands not exceeding 3 years from the making, whereupon the rent reserved shall be two thirds of the improved value. [A shilling given in earnest, and accepted by the seller, confirms any agreement for the sale of goods, &c. of the greatest value.

It has been held that agreements, although verbal, are in some instance good. Thus if the agreement be admitted by the party who is required to perform it, or if a parole agreement, intended to be reduced in writing, but prevented from being so done by one of the parties, the same shall be good, notwithstanding it was verbal, and a court of equity, will decree a specific execution of such agreement, upon the same principle a parole agreement in part executed shall be performed for the whole; for were a contrary construction put upon the statute, it would enable the party in whose favor such contract had been partially executed, to practice fraud upon the other, who has in part executed the agreement.

Every agreement ought to be full, perfect and complete, so as to show with precision what is intended to be stipulated between the parties, and their perfect consent thereto; it ought also to make express provisions against the possibility of failure in any of the contracting parties; this, therefore, should be guarded against by a penalty, and be so clear and certain, as to give an action or remedy therein, and it is therefore right to stipulate expressly, that the party, by whose default a failure of performance shall ensue, shall reimburse the other in all costs, charges and expenses incurred in consequence of failure in his

contract:

Sealing an agreement is not necessary to take it out of the statute of frauds, one witness is sufficient, but if the words covenant, promise, and agree, is contained in the agreement, it is a deed and requires twọ witnesses to the sealing and delivery. Although it is prudent that both parties should actually sign the agreement, it will be binding, notwithstanding the statute of frauds, if it be signed by one party only, provided the other party, be so circumstanced that he can have an adequate remedy thereupon.

If one enters into a covenant with another to do a certain act in consideration of a reward, and the other prevents the stipulated thing from being literally performed, and accepts of an equivalent, he may be sued for the reward. Hotham and others v. East India Comp. Doug. 259. An agreement to accept a bill on certain conditions is discharged, if the conditions are not complied with. Mason v. Hunt, and another. Doug. 284.

If the owners of different ships agree to indemnify each other to a certain amount, if any of their ships shall be lost, and one of them sells his ship, which is afterwards lost, the others are not liable, unless the vender has sold (together with the ship) his interest in the agreement of indemnity. Agyes v. Wilson, East. T. B. R. 20. Geo. III. The same principles applies as long as the parties continues interested in consequence of any agreement.

If two persons agree to perform certain work within a limited time, or pay a stipulated weekly sum for such time afterwards as it shall remain unfinished, and a bond is prepared in the name of both, but is executed by one only, with condition for the due performance of the work, or the payment of the weekly sum, and the work is not finished in the time, such weekly payments are not by way of penalty, but in the nature of liquidated damages, and may be set off by the obligee in an action brought against him by the obligor, who executed the instrument. Fletcher v. Dyche, 2. T. R. 32.

If A. B. C. and D. enter into an agreement to purchase goods in the name of A. only, and to take aliquot shares of the purchase, but it does not appear that they are jointly to re-sell the goods; on failure of A. the ostensible buyer, R. C. and D. are not answerable to the seller as partners. Coope v. Eyre. C. B. 1 H. Bl. 37.

Mere verbal evidence will not be admitted to disprove a written agreement. Meres. and others v. Ansell and others. C. B. 3 Wills., 275.

ASSIGNMENT. An assignment is an absolute transfer of all the interest the assignor has in the property assigned.

In the assignment of a bond, a power of attorney, or clause is usually inserted, empowering the assignee to receive and sue in the name of the assignor.

If a bond be assigned for a valuable consideration, the assignee alone becomes entitled to the money; so that if the obligor after notice of such assignment, pays it to the obligee, he will be obliged to pay it over again. 2 Vern. 595.

In the case of a policy of insurance, an action can be brought in the name of an assignor. 1 T. R. 26.

A bare power is not assignable, but where coupled with an interest. 2 Mod. 317.

An assignment of a contract, or a chose in action, need not be made by deed. 1 T. R. 690.

If an assignment be made of a sum of money owing or payable to the assignor, notice of the assignment should be immediately given to the party liable to pay it.

AVERAGE signifies the accidents and misfortunes which happen to ships and their cargoes from the time of their loading and sailing, to their return and unloading.

It is divided into four kinds: 1st. General or gross average, which is a general contribution to be made by all the owners of a ship and cargo, towards a loss sustained by some for the benefit of all. 2d. Special or particular average, is used to denote every kind of partial loss or damage happening either to the ship or cargo from any cause whatever. 3d. Petty average which consists in such charges and disbursements as according to occurrences, and the custom of every place, the master necessarily furnishes for the benefit of the ship and cargo, either at the place of loading, or unloading, or on the voyage.— These charges are loadmanage, or the hire of a pilot, in conducting a vessel from one place to another, tonnage, pilotage, light money,

beaconage, anchorage, bridge toll, quarantine, river charges, signals, instructions, passage money by castles, and expense for digging a vessel out of the ice. The 4th kind of average is that mentioned in bills of lading, paying freight, &c. with primage and average accustomed ; in this sense, it signifies a small duty, which merchants who send goods in the ship of other men, pay to the master, over and above the freight, for his care and attention to the goods so entrusted to him. Damages immediately arising from Jettison or other acts of necessity is to be contributed for, although it happens to perishable articles, which remain in specie. Therefore if cutting away a mast, corn is injured, or in removing and throwing overboard any part of the cargo, another part is injured, the damage is to be included in the general average.Maggrath v. Chunk, 1 Carne's N. Y. Rep. 196.

In case a ship be voluntary stranded to save the cargo, the loss of the ship becomes a general average, but if the ship be voluntary wrecked and part of the cargo saved, and part lost, no general average is due. 2 Brown. Adm. Law. 199. 200.

A neutral vessel captured by a belligerent, is entitled to be discharged without paying salvage, provided the same rule is acted upon by the power to which the neutral vessel belongs. Mason v. ship Blaireau, 2 Cranch's Rep. 240. Talbot v. Seamen, 1 Cranch's Rep. 1.

A charterer cannot recover his extra expenses by a general contribution, in consequence of a detention by an embargo, or by quarantine. Though he hired the vessel by the month, they are charged upon the ship and freight, but wages and provisions during detention form a general average. Jones v. Ins. Co. of North-America. 4 Dall. Rep. 246. Kingston v. Girad ibid. 274. Lavensworth v. Delafield,

1 Caine's N. Y. Rep. 573. Yet charges occasioned by an extraordinary quarantine shall be brought into a general average.

A vessel was captured and afterwards released, and but a part of the cargo condemned, which was compromised by the master with the captors. It was decided that the sum so paid was not a general average, but must be borne by the cargo alone. Vanderhewel v. United States Ins. Co. John. N. Y. Rep. 406.

Goods shipped on deck and lost, are not entitled to general average. Smith Caw. v. Wright and others, 1 Caine's N. Y. Rep. 43.

In case of Jettison, the owners contributed according to the value of the ship, at the end of the voyage, and the clear amount of the freight of the voyage after deducting the wages of the crew and the expense of the voyage,

It is held if a ship is lost by voluntary running her ashore, not any contribution is to be levied on the cargo, for the loss of the ship.Bradhurst v. Columbian Ins. Co. 9 Johns. Rep. 9; but if done to save the cargo is the subject of general average; but if resorted to, to save the lives or liberty of the crew, it is particular average. Caze v. Rutard, 2 Serg. and Rawle. 237.

In case of general average after detention and capture the contribution has been proportioned as follows, on the cargo valued on its first lost, and charges at the port of departure, on the vessel valued at four fifths of her actual value at the same place, exclusive of out-fits, and on the freight one half the amount payable in the event of a successful performance of the voyage. Lavenworth v. Delafied, Caine's N. Y. Rep. 573.

But if the ship be so much injured by the perils of the seas, as to sell her abroad, the amount she actually sold for, is the value for which she contributes on a general average. Bell v. Smith, 2 John. Rep. 98.

When the amount of salvage is not fixed by positive law, it must be determined by the principal of general law and equity, and is discretionary under all the circumstances of the case.

When there is many consignees, it is usual for the master, before he delivers the goods to take a bond from the merchants, for the due payment of their proportion of the average when the same shall be adjusted.

The underwriters are not liable, if the loss of the memorandum articles be partial, and not total, and it is partial only when part of the cargo arrives in safety, however deteriorated in value, though another part of the cargo has been wholly destroyed by disasters on the voyage. Brays v. Chesapeake In. Co. Morcan v. U. S. Ins. Co. 1 Wheaton's Rep. 219, 2270.

The memorandum clause in a policy usually declares the enumerated articles should be free from average, under a general average, unless general or the ship be stranded.

In a total loss in a wreck or any other casualty, in forwarding the cargo, there is no distinction between the memorandum articles and the rest of the cargo. Manning v. Newnhan, Conde's Marshal, 586. Moreau v. U. S. Ins. Co. 1 Wheaton's Rep. 219. Maygrath v, Church, 1 Caine's Rep. 214. Also cited in 3 Kent's Com. 244, 245.

AUCTIONS.

A bidder at an auction under the usual conditions that the highest bidder shall be the purchaser, may retract his bidding any time before the hammer is down. Payne v. Cave, 3 T. R. 148.