the time. "If the party releasing is ignorant of his right, or if his right is concealed from him by the person to whom the release is made, there will be good reasons for the setting aside of the release." The court never holds parties acting upon their rights (doubts arising as to those rights) to be bound, unless they act with full knowledge of all the doubts and difficulties that arise. (a) If a party acting in ignorance of a plain and settled principle of law, is induced to give up a portion of his indisputable property to another, under the name of compromise, a court of equity will release him from the effect of his mistake. (b) But where a doubtful question arises, such as a question of construction upon the will of the testator, it is extremely reasonable that parties should terminate their differences by dividing the stake between them, in the proportions which may be agreed upon. (c) A party had devised an estate tail in certain lands to D., his eldest son and heir, limiting the reversion in fee to his own heirs. D. left no issue, but devised the estate to the plaintiff in fee. The latter, being ignorant of the law, and persuaded by the defendant and his scrivener and conveyancer, that D. had no power to make such devise, and being also subject to an action of ejectment, purchased the estate of the defendant for £80, and it was conveyed to him by lease and release. A bill was filed to have this money repaid with interest. The defendant by his answer first of all insisted that D. had no power to make such devise; but if he had, he urged that the plaintiff should have been better advised before he parted with his money, for that all purchases were to be at the peril of the purchaser. The decree was for the money, with interest and costs. (d) (a) Ramsden v. Hylton, 2 Ves. 304. (b) Gibbons v. Caunt, 4 Ves. 849. Cole v. Green, 1 Ves. 306. (c) 1 Sim. and Stu. 562, 3, 4, 5. (d) Bingham v. Bingham, Belt's Sup. to Vesey's Rep. 79. SECTION V. CONSENT. When it is considered to have been given.-Contract by letters.-Effect of the letter containing the offer, both at the time sent, and at the time received. If at the time received the person by whom, or to whom it is addressed, be dead or insane, the treaty is at an end.-Before acceptance, offer in the letter may be recalled.-Letter containing the offer, and another revoking the offer, written at different times in the same day, but sent and arriving by the same post.-Acceptance.-Whether it is perfect before it is communicated to the person making the offer.-By the civil law and the codes founded on it, and by the Code Civil, the contract need not be in writing. Otherwise in England.-Statute of Frauds.-What writing required by the statute.-By whom to be signed.-Signature by agent.Part performance, effect of.—Colonies in which this statute is adopted.— Law of Scotland.—Rei interventio.-United States. If the parties are present when they contract, there can be no difficulty in ascertaining the period when the consent of both is given, when there is duorum in idem placitum consensus. But the contract may take place through the intervention of a third person, or by correspondence, "Inter absentes quoque talia negotia contrahuntur; veluti per epistolam, vel per nuncium." (a) When the written correspondence of the parties affords the medium by which the consent is given, some important questions arise which require consideration. As an offer by the one to sell or buy has no effect until it is accepted by him to whom it is made, the death or insanity of the person by whom, or to whom the offer has been addressed, before the latter has accepted it, determines the treaty. The heirs of neither party can claim the right of insisting on its completion against the consent of the other. (a) Dig. lib. 44, tit. 7, 1. 2, § 2. The commentators have thus described an offer by a letter and its effects: Epistola absenti idem est quod sermo præsentibus: et qui mittit alteri literas, intelligitur præsens præsenti loqui." (a) Epistola obligare non potest scribentem, si is decedat antequam ad eum pervenerit cum quo erat contrahendum, quia cùm per mortem deficiat scribentis consensus, non potest dici quòd ejus scriptura loquatur; per epistolam enim præsens videtur absenti loqui: sed mortuus non loquitur; ideò cessat præsumptio seu conjectura." (b) "Licèt mittens consentiat tempore quo mittit, tamen consentit tempore quo epistola pervenit ad eum cui mittitur, quia durat primus consensus, ex quo non reperitur mutatus, voluntas præsumitur durare; et ideò puto quòd si antequam perveniat epistola, moriatur mittens vel efficiatur furiosus, quòd tunc non contrahatur obligatio per epistolam, quia non durat voluntas nec intervenit consensus tunc temporis." (c) 66 Quod diximus literas quæ inter absentes mittuntur, probare, non procedit ubi, antequàm ei cui scriptæ sunt literæ traditæ fuissent, decessisset is cui scripsisset. Cujus rei illa ratio redditur, quia per literas absens absentem dicitur alloqui; non ergo dici potest alloqui qui misit, si antequàm traderentur, decessit." (d) The person sending the letter not only gives his consent at the time he sends it, but his consent is given at the time the letter is delivered "verum est illum consentire tempore quo literæ tradentur, quia durat primus consensus, et ex eo quo non reperitur mutata voluntas præsumitur durare." (e) (a) Bartolus, ad Pand. lib. 39, tit. 5, de Donationibus, 1. 4. (d) Straccha, Tr. de Mercatura, tit. de Probationibus, n. 16. The continuance of the consent at the time of the delivery is a presumption which is rebutted, if the writer, before the offer has been accepted, revokes it. Brunneman, in commenting on this law in the Pandects, condemns the opinion that such consent could not be withdrawn after the letter had been sent: "Glossa hic putat, quando per litteras contraho, antequam perveniant litteræ ad alterum, me non posse pœnitere, quam Dd. communiter reprobant. Unde si nuncium mitto ob contractum ineundum, et si antequam litteræ perveniant ad alterum, possum testato pœnitere, quia nuntius et epistola est nudum instrumentum, ubi ergo revoco statim, deest consensus." (a) Pothier has adopted a similar opinion. "Pour que le consentement intervienne en ce cas, il faut que la volonté de la partie, qui a écrit à l'autre pour lui proposer le marché, ait persévéré jusqu'au temps auquel sa lettre serà parvenue à l'autre partie, et auquel l'autre partie aura déclaré qu'elle acceptait le marché. Cette volonté est presumée avoir persévéré tant qu'il ne paraît rien de contraire." (b) It may happen, that if the person having written and put into the post-office, a letter containing an offer, or the acceptance of an offer, may by the same conveyance transmit another letter, containing an alteration or a revocation of that offer, or the acceptance of it. In such a case it has been decided, that both letters are to be read as containing one entire communication, and consequently from both the letters is to be drawn the conclusion, whether the offer is continued, or whether there has been a simple acceptance of the offer. Pothier has supposed the case, and he concludes that there is wanting the requisite consent, "si j'ai écrit à un marchand de Livourne une lettre par laquelle je lui proposais de me vendre une certaine partie de marchandises pour (a) Brunneman, ad Pand. lib. 18, tit. 1, 1. 1. (b) Pothier, Tr. Cont. de Vente, n. 32. un certain prix, et qu'avant que ma lettre ait pu lui parvenir, je lui en aie écrit une seconde, par laquelle je lui marquais que je ne voulais plus cette emplette, ou qu'avant ce temps je sois mort, ou que j'ai perdu l'usage de la raison; quoique ce marchand de Livourne, au reçu de ma lettre, ignorant ou mon changement de volonté, ou ma mort, ou ma démence, ait fait réponse qu'il acceptait le marché proposé, néanmoins il ne sera intervenu entre nous aucun contrat de vente; car ma volonté n'ayant pas persévéré jusqu'au temps auquel ce marchand a reçu ma lettre, et accepté la proposition qu'elle contenait, il ne s'est pas rencontré un consentement ou concours de nos volontés nécessaire pour former le contrat de vente." (a) Another case occurred, in which a merchant at Paris wrote to a merchant at Havre, offering to purchase of the latter a certain vessel, if she could be fully equipped by a particular day. The merchant at Havre wrote two letters, which he despatched by the same courier. In the one written in the earlier part of the day he expressed his simple assent, but in the other letter written at a later part of the day, he expressed his inability to equip the vessel by the time required, although he would do every thing in his power. The merchant at Havre proceeded to execute the order, but the merchant at Paris considered the treaty at an end, in consequence of the former having stated his inability to effect it by the time required. The Court of Rouen, and afterwards the court of Cassation, decided that the two letters must be taken as one entire communication, and that consequently they did not amount to a simple and absolute acceptance of the offer. (b) A similar decision was pronounced by the Court of Session, on the effect of two letters from the same (a) Pothier, Tr. du Cont. de Vente, part 1, n. 32. (b) Merlin, Rep. tit. Vente, § 1, art. 3. c. 1, n. 64. Toullier, tom. 6, n. 29. Duvergier, Tr. de Vente, tit. 6, |