has been established for the benefit and protection of the child, and therefore cannot be dispensed with by the mother's consent.'

One case may, however, be mentioned to which the rule applies, without the qualification-that, viz., of a release by one of several joint creditors, which, in the absence of fraud and collusion, will operate as a release of the claims of the other creditors, and may be pleaded accordingly. On the other hand, the debtee's discharge *of one joint or joint and several debtor is a discharge of [*704] all; and a release of the principal debtor will discharge the sureties, unless, indeed, there be an express reservation of remedies as against them.3

It is also a well-known principle of law, that, where a creditor gives time to the principal debtor, there being a surety to secure payment of the debt, and does so without consent of or communication with the surety, he discharges the surety from liability, as he thereby places himself in a new situation, and exposes him to a risk and contingency to which he would not otherwise be liable;6 *and this seems to afford a further illustration of the

5

[*705]

1 Reg. v. Birmingham, 5 Q. B. 210 (48 E. C. L. R.). See Reg. v. Combs, 5

E. & B. 892 (85 E. C. L. R.).

ham v.

2 Nicholson v. Revill, 4 A. & E. 675, 683 (31 E. C. L. R.), recognising CheetWard, 1 B. & P. 630, and cited in Kearsley v. Cole, infra, and Thompson v. Lack, 3 C. B. 540, (54 E. C. L. R.); Co. Litt. 232 a; judgm., Price v. v. Barker, 4 E. & B. 777 (82 E. C. L. R.); Clayton v. Kynaston, 2 Salk. 573; 2 Roll. Abr. 410, D. 1; 412, G., pl. 4.

3

Kearsley v. Cole, 16 M. & W. 128; Thompson v. Lack, 3 C. B. 540 (54 E. C. L. R.); judgm., Price v. Barker, 4 E. & B. 779 (82 E. C. L. R.); Owen v. Homan, 4 H. L. Cas. 997, 1037.

↑ “The general rule of law where a person is surety for the debt of another is this that though the creditor may be entitled, after a certain period, to make a demand and enforce payment of the debt, he is not bound to do so; and provided he does not preclude himself from proceeding against the prin cipal, he may abstain from enforcing any right which he possesses. If the creditor has voluntarily placed himself in such a position that he cannot sue the principal, he thereby discharges the surety. But mere delay on the par of the creditor, unaccompanied by any valid contract with the principal, will not discharge the surety: per Pollock, C. B., Price v. Kirkham, 3 H. & C. 441.

See Harrison v. Seymour, L. R. 1 C. P. 518; Union Bank of Manchester v. Beech, 3 H. & C. 672; Skillett v. Fletcher, L. R. 2 C. P. 469, and cases there cited.

* Per Lord Lyndhurst, Oakeley v. Pasheller, 4 Cl. & Fin. 233. See further

remark already offered, that a renunciation of a right cannot in general' be made to the injury of a third party.

Where, however, a husband, whose wife was entitled to a fund in court, signed a memorandum after marriage, agreeing to secure half her property on herself, it was held, that it was competent for the wife to waive this agreement, and that any benefit which her children might have taken under it was defeated by her waiver.2

Lastly, it is clear that the maxim, Quilibet potest renunciare juri pro se introducto, is inapplicable where an express statutory direction enjoins compliance with the forms which it prescribes; for instance, a testator cannot dispense with the observance of those formalities which are essential to the validity of a testamentary instrument; for the provisions of the Statute of Frauds, or of the modern Wills Act, were introduced with a view to the public benefit, not that of the individual, and, therefore, must be regarded as positive ordinances of the legislature, binding upon all.3 Nor can an individual waive a matter in which the public have an interest.*

[*706] *QUI SENTIT COMMODUM SENTIRE DEBET ET ONUS. (2 Inst. 489.)

He who derives the advantage ought to sustain the burthen.

The above rule applies as well in the case where an implied covenant runs with the land, as where the present owner or occuas to the rule above stated, per Lord Brougham, Mactaggart v. Watson, 3 Cl. & Fin. 541; per Lord Eldon, C., Samuell v. Howorth, 3 Mer. 278, adopted per Lord Cottenham, C., Creighton v. Rankin, 7 Cl. & Fin. 346; Manley v. Boycott, 2 E. & B. 46 (75 E. C. L. R.); Pooley v. Harradine, 7 E. & B. 431 (90 E. C. L. R.); Lawrence v. Walmsley, 12 C. B. N. S. 799, 808 (104 E. C. L. R.); see Bonar v. Macdonald, 3 H. L. Cas. 226; General Steam Nav. Co. v. Rolt, 6 C. B. N. S. 550 (95 E. C. L. R.); Way v. Hearn, 11 C. B. N. S. 774 (103 E. C. L. R.); 13 Id. 292; Frazer v. Jordan, 8 E. & B. 303 (92 E. C. L. R.); Taylor v. Burgess, 5 H. & N. 1; Bailey v. Edwards, 4 B. & S. 761 (116 E. C. L. R.).

See Langley v. Headland, 19 C. B. N. S. 42 (105 E. C. L. R.).

2 Fenner v. Taylor, 2 Russ. & My. 190; Macq. H. & W. 85.

* See, per Wilson, J., Habergham v. Vincent, 2 Ves., jun., 227; cited Countess of Zichy Ferraris v. Marquis of Hertford, 3 Curt. 493, 498 8; s. C., affirmed 4 Moore P. C. C. 339.

Per Alderson, B., Graham v. Ingleby, 1 Exch. 657; ante, p. 699, n. 2. In exemplification whereof see Hayward v. Duff, 12 C. B. N. S. 364 (104 E. C. L. R.).

pier of land is bound by the express covenant of a prior occupant; whenever, indeed, the ancient maxim, Transit terra cum onere, holds true.' The burthen of repairs has, we may observe, always been thrown as much as possible, by the spirit of the common law, upon the occupier or tenant, not only in accordance with the principle contained in the above maxim, but also because it would be contrary to all justice, that the expense of accumulated dilapidation should, at the end of the period of tenancy, fall upon the landlord, when a small outlay of money on the part of the tenant in the first instance would have prevented any such expense becoming necessary; to which we may add, that, generally, the tenant alone has the opportunity of observing, from time to time, when repairs become necessary. In one of the leading cases on this subject, the facts were, that a man demised a house by indenture for years, and the lessee, for him and his executors, covenanted with the lessor to repair the house at all times necessary; the lessee afterwards assigned it over to another party, who suffered it to decay; it was adjudged that covenant lay at suit of the lessor against the assignee, although the lessee had not covenanted for him and his assigns; for the covenant to repair, which extends to the support of the thing demised, *is quodammodo appurtenant to it, and goes with it; and, inasmuch as the lessee had taken upon himself to bear the charges of the reparations, the yearly rent was the less, which was to the benefit of the assignee, and Qui sentit commodum sentire debet et onus.2

[*707]

The following case may also serve to illustrate the same principle: -A company was empowered under a local Act to make the river Medway navigable, to take tolls, and "to amend or alter such bridges or highways as might hinder the passage or navigation, leaving them or others as convenient, in their room." The company, in prosecuting the work, destroyed a ford across the river, in the common highway, by deepening its bed, and built a bridge over the river at the same place. It was held, on an indictment brought against the company forty years afterwards, that they were bound

1 Co. Litt. 231 a. See Moule v. Garrett, L. R. 5 Ex. 13, and cases there cited.

* Dean and Chapter of Windsor's Case, 5 Rep. 25; cited per Tindal, C. J., Tremeere v. Morison, 1 Bing. N. C. 98 (27 E. C. L. R.); which case is followed in Sleap v. Newman, 12 C. B. N. S. 116, 124 (104 E. C. L. R.).

to keep the bridge in repair, as under a continuing condition to preserve a new passage in lieu of the old one which they had destroyed for their own benefit. So, the undertakers of the Aire and Calder Navigation, who were empowered by Act of Parliament to make certain drains in lieu of those previously existing, were held bound to cleanse the drains substituted by them in pursuance of the Act, the power to make such substitution having been conferred on them for their own benefit. In the two preceding cases, as well as in others of a like character, the maxim under consideration is directly applicable.3

[*708]

*So, it has been designated a principle of "universal application" that "where a contract has been entered into by one man as agent for another, the person on whose behalf it has been made, cannot take the benefit of it without bearing its burthen. The contract must be performed in its integrity."4

A further important illustration of the rule occurs, where a party adopts a contract which was entered into without his authority, in which case he must adopt it altogether. He cannot ratify that part which is beneficial to himself, and reject the remainder; he must take the benefit to be derived from the transaction cum onere.5 Where, therefore, the owner of goods who was undisclosed at the time of the contract for their sale, subsequently interferes and sues upon the contract, justice requires that, if the defendant has credited and acquired a set-off against the agent before the principal interposed, the latter should be bound by the set-off, in the same way that the agent would have been had he been the plaintiff on the record; and that the defendant should be placed in the same situation at the time of the disclosure of the real principal, as if the agent had been in truth the principal.

An innkeeper was requested by his guest to allow him the use of

1 R. v. Inhabs. of Kent, 13 East 220.

2 Priestley v. Foulds, 2 Scott N. R. 205.

Per Tindal, C. J., 2 Scott N. R. 225; Nicholl v. Allen, 1 B. & S. 916, 934 (101 E. C. L. R.).

Per Lord Cranworth and Lord Kingsdown, Bristow v. Whitmore, 9 H. L. Cas. 391, 404, 418 (where there was a difference of opinion as to the application of the principal maxim, see per Lord Wensleydale, Id. 406); cited in The Feronia, L. R. 2 A. & E. 75, 77, 85 (29 E. C. L. R.).

Per Lord Ellenborough, C. J., 7 East 166.

See the cases cited Broom's Com., 4th ed., 539.

a private room for the purpose of showing his goods in; and to this request the innkeeper acceded, at the same time telling the guest that there was a key, and that he might lock the door, which, however, the guest *neglected to do: it was held, that the jury [*709] were justified in concluding that plaintiff received the favor cum onere, that is, that he accepted the chamber to show his goods in upon condition of taking the goods under his own care, and that by so taking them under his own care the innkeeper was exonerated from responsibility. The liability of an innkeeper, under ordinary circumstances, in respect of goods brought to his inn, has been materially restricted by the recent stat. 26 & 27 Vict. c. 41.

Again, it is a very general and comprehensive rule, to which we have already adverted, and which likewise falls within the scope of the maxim now under consideration, that the assignee of a chose in action takes it subject to all the equities to which it was liable in the hands of the assignor; and the reason and justice of this rule, it has been observed, are obvious, since the holder of property can only alienate or transfer to another that beneficial interest in it which he himself possesses. If, moreover, a person accepts anything which he knows to be subject to a duty or charge, it is rational to conclude that he means to take such duty or charge upon himself, and the law may very well imply a promise to perform what he has so taken upon himself.3

The above maxim may also be applied in support and explanation of that principle of the law of estoppel, in *accord[*710] ance with which the record of a verdict, followed by a judgment in a suit of inter partes, will estop, not only the original parties, but likewise those claiming under them. A man will be bound by that which would have bound those under whom he claims quoad the subject-matter of the claim; for, Qui sentit commodum sentire debet et onus: and no man can, except in certain cases,

1

Burgess v. Clements, 4 M. & S. 306, 313; Richmond v. Smith, 8 B. & C. 9 (30 E. C. L. R.); Dawson v. Chamney, 5 Q. B. 164, 169 (48 E. C. L. R.); Calye's Case, 8 Rep. 32, is the leading case as to the liability of innkeepers. See also in connection therewith, Armistead v. Wilde, 17 Q. B. 261 (79 E. C. L. R.); Cashill v. Wright, 6 E. & B. 891 (88 E. C. L. R.) ; Dansey v. Richardson, 3 E. & B. 144 (77 E. C. L R.); Day v. Bather, 2 II. & C. 14.

21 Johns. (U. S.) R. 552, 553; 11 Id. 80; Brandon v. Brandon, 25 L. J. Chanc. 896; ante, p. 467.

Abbott Shipp., 5th ed., 286; cited Lucas v. Nockells, 1 Cl. & Fin. 457.