Topic

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LEARNING OUTCOMES
1. 2. 3. 4. 5. 6.

Law of Contract (Proposal and Acceptance)

By the end of this topic, you should be able to: Define the meaning of contract; Explain the important elements that constitute a valid contract; Differentiate between a proposal and an invitation to treat; Identify the rules of acceptance and the exceptions; Describe the importance of communication in a proposal and an acceptance; and Discuss the principles relating to revocation of a proposal and an acceptance.

INTRODUCTION

This topic introduces the law which governs the formation of contracts in Malaysia. Throughout the discussion, the relevant provisions of the statute, in particular the Contracts Act 1950 and relevant case-laws will be referred to in order to give us a clear understanding of the topic. The Malaysian law of contract is governed by the Contracts Act 1950. However, the Act does not address all aspects of the law of contract. Thus, in absence of any provision relating to issues arising under the contract, reference may be made to English law by virtue of Section 5 of the Civil Law Act 1956. It is important to note that despite reference being made to English Law, these can only be treated as guidelines or persuasive authority and will not bind the decisions of the courts in Malaysia. Decisions of the courts in India may also be referred to since some of the provisions of the Indian Contracts Act are in pari materia with the Malaysian Contracts Act. However, this will be regarded as a source of reference only.

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1.1

DEFINITION OF CONTRACT AND ELEMENTS OF A VALID CONTRACT

Section 2(h) of the Contracts Act defines contract as an agreement enforceable by law. In other words, a contract is an agreement that binds the parties who enter into it and it can be enforced against one another (Refer to Figure 1.1). It can be a contract to sell and purchase land, a contract of leasing, an insurance contract, etc. However, not all agreements are contracts, for example, a social agreement or agreements between family members. (This is also known as a domestic agreement). These agreements are not considered contracts because they are not intended to bind the parties in law.

Figure 1.1: A sample of a contract

Most contracts take the form of simple contracts whereby there are no specific formalities involved in the contract formation. The contracts are made orally or through implied actions of the parties, for example, selling and buying goods at the grocery shop or the market. However, there are contracts which are considered as complex in nature, like contracts entered into by companies doing the business of selling houses and lands, and jointventure contracts. These contracts are normally drafted and prepared in a written form, containing the details of the terms and conditions agreed by the parties therein. In order to form an agreement enforceable by law, the following elements (Refer to Figure 1.2) must exist: (a) (b) (c) (d) (e) (f) Proposal or Offer; Acceptance; Consideration; Intention to create legal relations; Capacity to contract; and Free consent.

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Figure 1.2: Elements of a valid contract Table 1.1: Explanation on the Elements of a Contract Elements of contract Proposal or Offer Acceptance Proposer/Offeror Acceptor Consideration Intention to create legal relations Capacity to contract Free Consent Explanation When you signify your willingness to be bound by a contract with the other party. When you agree to accept the offer or proposal made by the other party who makes the proposal. A person who makes the offer. A person who accepts the offer. A value to be paid for a promise made. Every party to a contract must have the intention to create a legal relation. Every party to a contract must have the capacity to enter into a contract. Every party must enter into a contract with free consent; the contract must not be secured through fraud, coercion, undue influence, misrepresentation or mistake.

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SELF-CHECK 1.1
1. 2. 3. 4. How do you distinguish between a social agreement and a contract? What are the important elements to form a valid contract? What are the advantages of having a contract in written form? Give two examples of standard forms of contract that are available in Malaysia.

1.2

PROPOSAL OR OFFER

What is a proposal or an offer? According to Section 2(a) of the Contracts Act 1950, as explained in Table 1.1, a proposal is said to exist when one person signifies to another, his willingness to do or to abstain from doing anything, with a view to obtain the assent of that other person to the act or the abstinence. In other words, a proposal is the readiness of the person who makes the offer to create a legal relation and to be bound by the law, whenever the terms of the proposal are agreed upon by the acceptor. There is a difference in the use of word under the Malaysian law and the English law though the meaning is similar. Under the English law, the term offer is used while under the Malaysian Contracts Act, the word proposal is used.

1.2.1

To Whom can a Proposal be Made?

A proposal can be made to a specific or particular person and the proposal can be accepted by that person only. For example, A proposes B to sell his Perdana car at RM100,000. As proposal can only be accepted by B and not by other persons. A proposal can also be made to the public. In such situation, the acceptance can be made by any person who knows about the proposal and performs the obligations required by the proposer. The example of a proposal made to the public is illustrated in the case of:

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Carlill v. Carbolic Smoke Ball Co Ltd (1893) 1 QB 256.

The defendants were proprietors of a medical preparation called The Carbolic Smoke Ball. They inserted advertisements in various newspapers in which they offered to pay 100 to any person who contracted influenza after using the ball three times a day for two weeks. They added that they had deposited 1,000 at the Alliance Bank, Regent Street to show our sincerity in the matter. The claimant, a lady, used the ball as advertised, and was attacked by influenza during the course of treatment. She then sued for 100 as promised in the advertisements. The defendants tried to avoid liability by saying that there was no offer made because the offer was too vague and not sure to whom it was made. Held: The Court rejected the argument and held that the advertisement was an offer to the whole world. It was not an attempt to contract with the whole world but with the portion of the public who came forward and performed the condition in the advertisement. Thus, it was possible to make an offer of this kind and there was a binding contract made between Mrs Carlill and the defendants.

1.2.2

The Difference between a Proposal and an Invitation to Treat

Usually, before a proposal is made, the parties will hold some negotiations. The negotiation is an invitation to call for a proposal. There are many examples of invitation to treat, for instance, auctions and display of goods on the shelves in shops. The display of goods on the shelves in shops is also an invitation to treat and not a proposal by the shopkeeper. The proposal is made by the buyers when the buyers take the goods from the shelves and bring it to the counter for payment. The acceptance takes place when the seller accepts the payment from the buyer. In short, the contract was formed at the payment counter. A relevant case to explain the above principle is the case of:

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Pharmaceutical Society of Great Britain v. Boots Cash Chemist (Southern) Ltd (1953) 1 QB 401.
The defendants were charged under the Pharmacy and Poison Act 1933 (UK) which provided that it was unlawful to sell certain poison unless such sale was supervised by a registered pharmacist. Every sale of the drugs on the Poison List was supervised at the cash desk by a qualified pharmacist, who had the authority to prevent customers from taking goods out of the shop if he thought fit. In this case, the question arises whether a sale had occurred in the self-service shop when the customer selected articles which he desired to purchase and placed them in the wire basket. Held: The Court held that the display of goods did not constitute an offer but only an invitation to treat. A proposal to buy was made when the customer placed the articles in the basket. Hence, the contract of sale would be made at the cash desk when the cashier accepted the customers offer to buy what the latter had chosen. By that principle, the defendants (shop owners) had not made an unlawful sale.

In an auction, the auctioneer makes an invitation to bidders who come to the public auction to make a proposal. The proposal to bid at a certain price will come from the bidders and the auctioneer will accept or reject the proposal. Usually, the auctioneer will accept the highest bid or proposal from the bidders. An advertisement is also an invitation to treat by the advertiser. For example, advertisement for jobs in the newspapers. In the case of Coelho v. The Public Services Commission [1964] MLJ 12, the High Court ruled that the newspaper advertisement was an invitation for qualified persons to apply and the applications were treated as offers.

However, if the advertisement shows the willingness of the advertiser to do or to abstain from doing something, such advertisement is not an invitation to treat but a proposal by the advertiser. In this case, anyone who comes to perform the terms as required in the advertisement is said to have accepted the proposal. You may refer to the above case of Carlill which affirms the rule that the advertisement was an offer to the whole world and the company had the intention to contract with the section of the public who came forward and performed the condition in the advertisement.

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1.2.3

Proposal Must be Clear and Communicated

In the Contracts Act 1950, Section 4(1) provides that the communication of a proposal is complete when the proposal comes to the knowledge of the person to whom it is made. In order to make the proposal effective, it must be clear and communicated. A proposal which is vague and uncertain may not lead to a binding contract. In the case of Ahmad Meah & Anor v. Nacodah Merican (1890) 4 Ky 583, an agreement to build a suitable house was held by the court as vague to constitute a binding contract.

A proposal must also be communicated to the acceptor. It can be communicated in any form, either orally or in written or through the implied action of the party. Logically, a person cannot accept a proposal which he does not know exist. Thus, a person who gives any information cannot claim for a reward if he does not know about the reward being offered. The relevant case to explain this principle is the case of:

Williams v. Carwardine (1883) 5C&P 566.

The defendant published a handbill with the promise that he would pay the sum of 20 to any person who would provide information leading to the discovery of the murderer of Walter Carwardine. The claimant in this case lived with Williams and was severely beaten by him. As she believed that she was going to die and to ease her conscience, she gave information leading to the conviction of Williams for the murder. In an action to recover the reward, the jury found that the claimant was not induced to give the information by the reward offered, but by motives of revenge. However, the Court held that she was entitled to the reward because she had seen the handbill and had given information.

1.2.4

Revocation of Proposal

The proposer may revoke his proposal at any time before acceptance. Under Section 5(1) of the Contracts Act 1950, a proposal may be revoked at any time

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before the communication of its acceptance is complete as against the proposer, but not afterwards. The question is: When is the communication of acceptance complete as against the proposer? If the acceptance is made through instantaneous mode of communication such as telephone, telex, fax or oral, the acceptance is said to be communicated once it comes to the knowledge of the person to whom it is made. But, if the acceptance is made by post or telegram, the acceptance is complete as against the proposer at the time when the letter of acceptance is posted. Thus, in such situation, the revocation of the proposal must be made by the proposer before the letter of acceptance is posted by the acceptor. For example: A proposes, by a letter, sent by post, to sell his house to B. B accepts the proposal by a letter sent by post. A may revoke his proposal at any time before or at the moment when B posts his letter of acceptance, but not afterwards. Next, Section 6 provides that a proposal is revoked: (a) When the proposer communicated the revocation of the proposal to the other party before its acceptance. If the revocation of proposal is made by post, the revocation is only effective when it comes to the knowledge of the acceptor and not at the time when the letter of revocation is posted. One relevant case to illustrate the principle is the case of:

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Byrne v. Tienhoven (1880) 5 C.P.D. 344

1 October: Defendant posted a letter of offer from Cardiff to the plaintiff in New York. 8 October: Defendant posted a letter revoking the offer made on October 1. 11 October: Plaintiff received the letter of offer posted on October 1 and sent acceptance by telegram the same day. 15 October: Plaintiff sent letter of acceptance. 20 October: Plaintiff received defendants letter of revocation. The court held that there was a contract between the parties because the revocation of the offer posted on 8 October was only effective on 20 October (when the plaintiff received it). The plaintiff had accepted the offer on 11 October (when he sent the telegram accepting the offer).

The revocation of proposal need not be communicated by the proposer. It can be communicated by a third party who is acting on behalf of the proposer as an agent. For example, in the case of:

Dickinson v Dodds (1876) 2 Ch D 468

The defendant offered to sell houses by letter stating: This offer to be left over until Friday, 9am. On Thursday afternoon, Mr Berry informed the claimant that the defendant had been negotiating a sale of the property with Allan. On Thursday evening, the claimant left a letter of acceptance at the defendants house but the letter was not delivered to the defendant. On Friday morning, at 7am, Berry (acting as the claimants agent) handed the defendant a duplicate letter of acceptance. However, on Thursday, the defendant had entered into a contract to sell the property to Allan. The court held that the defendant was free to revoke his offer at any time because there was no consideration given by the claimant for the promise, to keep the offer open. Further, Berrys communication indicated that Dodds (defendant) was no longer interested to sell the property to the claimant. This was a good communication of Doddss revocation of offer. Therefore, there was no binding contract between the parties.

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(b)

By the lapse of time prescribed in the proposal for its acceptance. If no time is prescribed, by the lapse of a reasonable time. An example of case to illustrate the principle is:

Ramsgate Victoria Hotel Co. v. Montefiore (1866) L.R. 1 Ex.Ch. 109

The defendant offered to take shares in the company by a letter dated 8 June 1864. The company did not reply until 23 November 1864, when it alloted shares to the defendant. The defendant refused to take up the shares. Held: The defendants refusal was justified because the offer had lapsed due to the companys delay in accepting the offer within a reasonable time. The period between June and November was not reasonable. (c) Where the acceptor fails to fulfil a condition precedent to acceptance. For example, an employer offers to employ an applicant on the condition that he passes certain tests. If the applicant fails the test, then the proposal is revoked. By the death or mental disorder of the proposer. It is important that the acceptor knows about the fact of the death or mental disorder of the proposer. If the acceptance is made without knowledge of the death or mental disorder of the proposer, then it is a good acceptance.

(d)

SELF-CHECK 1.2
1. Can a proposal be made to the public at large? 2. How do you distinguish between a proposal and an invitation to treat? 3. Must the acceptor know about the proposal before he can accept it? 4. Can the proposer revoke his proposal? 5. When does the revocation of proposal become effective in cases of revocation made by post? 6. What are the grounds for revocation of a proposal?

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ACTIVITY 1.1
Discuss the following problem by applying the principle of law on proposal: Browny made an offer of RM1,000 in Looking Times to anyone who returned his Persian cat. Tony, a friend of Browny, found the Persian cat which he knew belonged to Browny. When Tony returned the Persian cat to Browny, Browny was so excited that he forgot all about the offer he had made. The next day, Tony came across the advertisement in Looking Times but when he went to see Browny to claim the reward, Browny refused to pay. Advise Tony.

1.3

ACCEPTANCE

What is an acceptance? According to Section 2(b) of the Contracts Act 1950, when the person to whom the proposal is made signifies his assent thereto, a proposal is said to be accepted: a proposal, when accepted, becomes a promise. This means, an acceptance is an agreement by the acceptor to the terms contained in the proposal made by the proposer. With that acceptance, a binding contract is said to exist. It is important that there is a positive act of acceptance made by the acceptor. If the acceptor keeps silence or fails to respond or totally disregards the proposal, then there is no acceptance because there is no positive act made by the acceptor. To determine whether an acceptance exists, the important rules on acceptance will be discussed below.

1.3.1

Acceptance must be Absolute and Unqualified

Section 7(a) of the Contracts Act 1950 provides that an acceptance must be absolute and unqualified. This means, the acceptance must be made on the same terms as provided in the proposal and there must not be any variation or modification. If the party varies or modifies the terms made in the proposal, an acceptance does not exist but that act will amount to a counter-proposal. The case to illustrate the rule is the case of:

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Hyde v. Wrench (1840) 3 Beav. 334

The defendant offered to sell his estate to the plaintiff for 1,000. In reply, the plaintiff made a counter-proposal to purchase at 950 but the defendant refused to accept this proposal. The plaintiff then wrote again to the defendant, agreeing to accept the original proposal, but the defendant refused to sell. The court ruled that the counter-offer made by the plaintiff at the price of 950 constituted a rejection to the original proposal (which cannot be revived). Therefore, no acceptance had occurred and the defendant had the right not to sell the estate to the plaintiff.

Next, if the parties are still in the process of negotiation, there is no question of an agreement. An example is the case of:

Lau Brothers & Co v. China Pacific Navigation Co. Ltd. [1965] 1 MLJ 1
The parties in this case conducted negotiations for the delivery of logs, through a series of telegrams and letters. Finally, the defendants withdrew from the negotiations. The issue was whether there was a binding contract between the parties? The court held that the parties were still in a state of negotiations and the defendants had the right to withdraw from it.

Another situation where a contract is not yet concluded is when there is a conditional acceptance. It happens when the acceptance is qualified by the term subject to a contract or subject to a formal contract being drawn up by the solicitors. This means, the parties do not intend to conclude their bargain until they executed a formal contract. The example of a case is:

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Low Kar Yit & Ors v. Mohd Isa & Anor [1963] MLJ 165
The defendants gave an option to the plaintiffs agent to purchase a parcel of land subject to a formal contract being drawn up and agreed upon by the parties. The plaintiffs agent exercised the option but the defendant failed to sign the sale agreement. The plaintiff then brought a legal action for breach of contract. The court decided that: there was no binding contract because the option to purchase was conditional and subject to a formal contract to be drawn up and agreed upon by the parties. Thus, the exercise of the option has no legal effect and it was an agreement to enter into an agreement.

1.3.2

Acceptance must be Communicated

In order to form a binding contract between the parties, the acceptance of the proposal must be communicated to the proposer. Section 7(b), Contracts Act 1950, provides that the acceptance may be expressed in some usual and reasonable manner, unless the proposal prescribes a manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but if he fails to do so, he accepts the acceptance. The principle provided in Section 7(b) means, if no method of acceptance is specified by the proposer, then the acceptance must be communicated and made in a usual and reasonable manner. For instance, if A offers to sell his bicycle to B, who stays next door to A, then the reasonable manner to accept the offer is by B going to As house to give his acceptance. If B wants to send a letter to accept As offer, the manner may be usual but it is unreasonable since they are staying next door. But if the proposal specifies a particular mode of acceptance and the acceptor does not follow it, then the proposer can insist on the mode of acceptance. The proposer must act within reasonable time after the acceptance is communicated. If not, then the proposer is said to have accepted the acceptance. (a) Act of acceptance In communicating the acceptance, it is not sufficient that the acceptor intends to accept the proposal without doing some positive act that relates to the proposal.

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Thus, if the acceptor remains silence after being proposed, then the act of silence cannot constitute an acceptance. As what happened in the case of:

Felthouse v. Bindley (1862) 11 CB (NS) 869

The plaintiff wrote to the defendant, offering to buy a horse for 30.75p and added as follows: If I hear no more about him, I consider the horse is mine at that price. The defendant did not reply. The court held that there was no contract between the plaintiff and the defendant because the defendant had never communicated his acceptance to the plaintiff. Silence is no acceptance.

(b)

Exceptions It is clear that the general rule requires the communication of acceptance and this means the acceptance must be brought to the notice of the proposer. However, there are certain exceptions to the general rule, as follows: Acceptance through post (Postal Rule) If the parties have agreed to use the post as a means of communication, then the acceptance is complete or effective as soon as the acceptor posted his letter of acceptance, even though it never reaches the proposer. Section 4(2) (a), Contracts Act 1950 provides that: The communication of an acceptance is complete: (a) as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor; and (b) as against the acceptor, when it comes to the knowledge of the proposer. Paragraph (a) means, when the acceptor posts his letter of acceptance, the proposer is bound to perform his obligation, even though the proposer does not know about the acceptance (for instance, the letter does not reach the proposer or delay in transit). A case to illustrate this principle is:

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Ignatius v. Bell (1913) 2 FMSLR 115

P a r a g r a p h The parties in this case agreed to use the post as a means of communication. The defendant made a proposal to sell his piece of land to the plaintiff and the option to purchase must be exercised on or before the 20 August 1912. The plaintiff sent his acceptance by registered post on 16 August 1912 but it was not delivered to the defendant till 25 August 1912. The court applying Section 4, held that: Communication of acceptance was complete when the notice of acceptance was posted on 16 August 1912, even though the defendant did not know about the acceptance.

Paragraph (b) means, when the acceptor posts his letter of acceptance, he is not bound to perform his obligation until his letter of acceptance is received by the proposer. For example, if A proposes to sell his car to B (by letter) and B accepts the proposal (also by letter), A is bound at the time when B posts his letter of acceptance, but B himself is not bound until A receives the letter of acceptance. It also means that in the meantime, the acceptor may still withdraw his acceptance. If the proposer wishes to exclude the postal rule, he may provide protection for himself. For instance, the proposer may clearly state in his proposal that any acceptance is deemed completed only upon receipt. Acceptance through performance of an act stated in the proposal. In some cases, the acceptance need not be communicated to the proposer. Section 8 of the Contracts Act 1950 provides that performance of the conditions of a proposal is an acceptance of the proposal. In a unilateral contract (i.e., a proposal to the public at large), the acceptor need not communicate his acceptance to the proposer because when the proposer performs the conditions provided in the proposal, it becomes an acceptance. The situation is that where a proposer advertises to the public at large that a reward is being offered, it will be unreasonable for every person who wants to accept the proposal to inform the proposer of his intention to accept. Thus, performance is sufficient to constitute an acceptance if that is the intention of the proposer. A case example is:

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Carlill v. Carbolic Smoke Ball Co. [1893] 1 QB 256

The Court held that the performance was sufficient to constitute acceptance if that was the intention of the proposer. (Explanation: Mr Carlill need not inform the company that he accepted its offer. By using the product as advertised and meeting all the terms of the offer, he is said to have accepted the offer).

1.3.3

Revocation of Acceptance

As explained earlier, when the acceptor posts his letter of acceptance, he is not bound to perform his obligation until his letter of acceptance is received by the proposer. This means the acceptor may still withdraw his acceptance. According to Section 5(2), Contracts Act 1950, an acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards. For example: A proposes (by a letter sent by post), to sell his house to B. B accepts the proposal (by letter sent by post). B may revoke his acceptance at any time (before or at the time when) his letter of acceptance reaches A

SELF-CHECK 1.3
1. 2. 3. 4. 5. 6. What is the importance of an acceptance in a contract and what is the effect of a counter-proposal? How can the acceptor communicate his acceptance to the proposer? In an acceptance made by post, when is the communication of acceptance deemed completed as against the proposer? Can the performance of an act stipulated in the proposal amount to an acceptance? When can the acceptor withdraw his acceptance? What do you understand by the postal rule principle?

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ACTIVITY 1.2
Discuss the following cases by applying the principle of law on acceptance: (a) On Friday 5 September, Hanna sent a telex to Adam offering to buy his piano at RM3,000. The telex was received by Adam at 4pm. Since the telex operator had gone home for the weekend, Adam posted a letter in the last post on Friday, accepting the proposal. The letter reached Hanna at 1.30pm on Monday, 8 September. Meanwhile, at 8.30am on 8 September, Hanna sent a telex to Adam withdrawing her proposal. Hannas telex reached Adam and was read by him immediately at 8.45am on 8 September. Adam sought after your advice. Advise Adam. T advertised his speed-boat in a newspaper for RM4,000. S wrote back offering to buy the speed-boat for RM3,500. T replied by return of post stating that he would accept RM3,750. Having received no reply from S, T wrote again saying he would accept his offer at RM3,500. Advise T.

(b)

Every contract is an agreement but not all agreements are contracts. An invitation to treat is not yet a proposal or an offer. It is an offer to make an offer. A proposal can be made to an individual person or to the public at large. A proposal must come to the knowledge of the acceptor before he can accept it. A proposal may be revoked at any time before acceptance. Revocation of proposal made by post is only effective when the acceptor receives the letter of revocation of a proposal. An acceptance must be made on the same terms as provided in the proposal without any variation or modification. An acceptance must be communicated to the proposer and made in usual and reasonable manner. In postal rule, the acceptance is effective upon the posting of the letter by the acceptor, even if the letter of acceptance never reaches the proposer.

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In unilateral contract, performance of the act stated in the proposal constitutes an acceptance of the proposal. The acceptor may revoke his acceptance before his letter of acceptance reaches the proposer.

Acceptance Communication Counter-proposal Invitation to treat

Performance Proposal Postal Rule Revocation

Text Books: Harlina Mohamed On & Rozanah Ab. Rahman. (2007). Undang-Undang Perniagaan Malaysia. Selangor: Kumpulan Usahawan Muslim Sdn. Bhd. Keenan, D. (2006). Smith and Keenans Law for Business (13th ed.). UK: Pearson and Longman. Wu, M. A. & Vohrah, B. (2000). The Commercial Law of Malaysia (2nd ed.). Selangor: Pearson and Longman. Cases:

Ahmad Meah & Anor. v. Nacodah Merican (1890) 4 KY 583. Byrne v. Tienhoven (1880) 5C.P.D. 344. Carlill v. Carbolic Smoke Ball Co. Ltd. (1893) 1 QB 256. Coelho v. The Public Services Commission [1964] MLJ 12. Dickinson v. Dodds (1876) 2 Ch 468. Felthouse v. Bindley (1862) 11 CB (NS) 869. Hyde v. Wrench (1840) 3 Beav. 334. Ignatius v. Bell (1913) 2 FMSLR 115. Lau Brothers & Co. v. China Pacific Navigation Co. Ltd. [1965] 1 MLJ 1. Low Kar Yit & Ors. v. Mohd. Isa & Anor [1963] MLJ 165.

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Pharmaceutical Society of Great Britain v. Boots Cash Chemist (Southern) Ltd. (1953) 1 QB 401. Ramsgate Victoria Hotel Co. v. Montefiore (1866) L.R. 1 Ex.Ch. 109. Williams v. Carwardine (1883) 5C&P 566.