It was perhaps never very likely that the proponents of fundamental breach would allow their doctrine to die just because of some obiter dicta on the subject from the House of Lords. In that respect, therefore, the recent decision of the Court of Appeal in Harbutt's “Plasticine” Ltd. v. Wayne Tank and Pump Co. Ltd. need cause no surprise. What had happened in that case, essentially, was that the defendants had agreed to manufacture some equipment and to instal it in the plaintiffs' factory under a contract, clause 15 of which limited the defendants' liability to the amount of the contract price (£2, 330). A small and easily corrected defect in the equipment caused a fire which destroyed the factory and resulted in a loss to the plaintiffs of some £150,000. The Court of Appeal held (Lord Denning M.R. dubitante) that on its true construction clause 15 covered the loss in the events which had occurred. The whole court nevertheless joined in holding that the destruction of the factory and consequent discharge by breach of the contract had the effect of making clause 15 inapplicable. Judgment was given for the full amount of the loss.

I propose in this article to examine two questions: the original system of government of the Inns of Court and the original relationship between call to the bar and the right of audience in the Royal Courts. Primarily I shall be concerned with the first question: I shall deal with the history of call to the bar only incidentally, and I do so because the two subjects are intimately connected with each other.

The theory that the common law is one and indivisible does not now, one would have hoped, attract a great deal of support. But the practice of the English Bar and the decisions of the English Bench continue to raise suspicions that the theory is not entirely outdated. There seems still a tendency to equate common law with English law.

“The law as to ‘delivery’ of a deed is of ancient date,” said Lord Denning M.R. in a recent case, “but it is reasonably clear. A deed is very different from a contract. On a contract for the sale of land, the contract is not binding on the parties till they have exchanged their parts. A deed is binding on the maker of it, even though the parts have not been exchanged, as long as it has been signed, sealed and delivered. ‘Delivery’ in this connection does not mean ‘handed over’ to the other side. It means delivered in the old legal sense, namely, an act done so as to evince an intention to be bound. Even though the deed remains in the possession of the maker, or of his solicitor, he is bound by it if he has done some act evincing an intention to be bound, as by saying: ‘I deliver this my act and deed.’ He may, however, make the ‘delivery’ conditional: in which case the deed is called an ‘escrow’ which becomes binding when the condition is fulfilled.”

An act done by or on behalf of a company may be defective for a variety of reasons. It may be ultra vires the company itself: in which case it will be void. It may be within the powers of the company but outside the authority or powers of the agent (usually the directors) doing the act: in which case it will also be void, but may nevertheless in varying circumstances be ratified by the company. It may be within the powers both of the company and of the agent but be done for an improper purpose: in which case it may in some circumstances be set aside or afford some other remedy.

Jurisprudence should ever be at the service of both legal scholar-ship and practice. If it were to dwell immured within the fastness of theory, this would only make it “stink,” as Dicey said, “in the nostrils of the practising barrister ” —to the mutual detriment of jurist and practitioner. This paper attempts at making a small contribution which, it is hoped, might be of service to both and which will have to be judged in the light of result.