A TRUE and proper gift or grant is always accompanied with delivery of possession, and takes effect immediately: as if A gives to B 100l., or a flock of sheep, and puts him in possession of them directly, it is then a gift executed in the donee; and it is not in the donor's power to retract it, though he did it without any consideration or recompense: unless it be prejudicial to creditors; or the donor were under any legal incapacity, as infancy, coverture, duress, or the like; or if he were drawn in, circumvented, or imposed upon, by false pretences, ebriety, or surprise. But if the gift does not take effect, by delivery of immediate possession, it is then not properly a [442] gift, but a contract; and this a man cannot be compelled to perform, but upon good and sufficient consideration; as we shall see under our next division. IX. A CONTRACT, which usually conveys an interest merely in action, is thus defined: 66 an agreement upon sufficient con"sideration, to do or not to do a particular thing." From which definition there arise three points to be contemplated in all contracts; 1. The agreement; (2) 2. The consideration; and 3. The thing to be done or omitted, or the different species of contracts. FIRST then it is an agreement, a mutual bargain or convention; and therefore there must at least be two contracting parties, of sufficient ability to make a contract; as where A contracts with B to pay him 100l. and thereby transfers a property in such sum to B. Which property is however not in possession, but in action merely, and recoverable by suit at Jenk. 109. Possession in the grantor, however, is not by itself conclusive, though strong evidence of fraud; a man may sell his own goods bonâ fide, and for a valuable consideration, and yet be allowed to retain possession of them as tenant to the grantee; in such cases, the validity of the transaction will depend, in great measure, on its notoriety. Pickslock v. Lyster, 3 M. & S. 371. Sec Holbird v. Anderson, 5 T. R. 235. Jezeph v. Ingram, 1 B. Moore, 189. (2) According to the decision in Wain v. Warlters, 5 East. 10., and Saunders v. Wakefield, 4 B. & A. 595, the word agreement legally imports both promise and consideration; the author, however, evidently uses it here in the popular sense of a promise or engagement. law; wherefore it could not be transferred to another person by the strict rules of the antient common law; for no chose in action could be assigned or granted over, because it was thought to be a great encouragement to litigiousness, if a man were allowed to make over to a stranger his right of going to law. But this nicety is now disregarded: though, in compliance with the antient principle, the form of assigning a chose in action is in the nature of a declaration of trust, and an agreement to permit the assignee to make use of the name of the assignor, in order to recover the possession. And therefore, when in common acceptation a debt or bond is said to be assigned over, it must still be sued in the original creditor's name; the person to whom it is transferred being rather an attorney than an assignee. But the king is an exception to this general rule, for he might always either grant or receive a chose in action by assignment: and our courts of equity, considering that in a commercial country almost all personal property must necessarily lie in contract, will protect the assignment of a chose in action, as much as the law will that of a chose in possession f. THIS contract or agreement may be either express or im- [ 443 ] plied. Express contracts are where the terms of the agreement are openly uttered and avowed at the time of the making, as to deliver an ox, or ten loads of timber, or to pay a stated price for certain goods. Implied are such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform. As, if I employ a person to do any business for me, or perform any work; the law implies that I undertook, or contracted, to pay him as much as his labour deserves. If I take up wares from a tradesman, without any agreement of price, the law concludes that I contracted to pay their real value. And there is also one species of implied contracts, which runs through and is annexed to all other contracts, conditions, and covenants, viz. that if I fail in my part of the agreement, I shall pay the other party such damages as he has sustained by such my neglect or refusal. In short, almost all the rights of personal property (when not in actual possession) do in great measure depend upon contracts, of one kind or other, or at least might be reduced under some of them: which indeed is the method taken by the civil law; it: having referred the greatest part of the duties and rights, which it treats of, to the head of obligations ex contractu and quasi ex contractu®. A CONTRACT may also be either executed, as if A agrees to change horses with B, and they do it immediately; in which case the possession and the right are transferred together: or it may be executory, as if they agree to change next week; here the right only vests, and their reciprocal property in each other's horse is not in possession but in action; for a contract executed (which differs nothing from a grant) conveys a chose in possession; a contract executory conveys only a chose in action, } HAVING thus shewn the general nature of a contract, we are, secondly, to proceed to the consideration upon which it is. founded; or the reason which moves the contracting party to [444] enter into the contract. "It is an agreement, upon sufficient. "consideration." The civilians hold, that in all contracts, either express or implied, there must be something given in exchange, something that is mutual or reciprocal". This thing, which is the price or motive of the contract, we call the consideration; and it must be a thing lawful in itself, or else the contract is void. A good consideration, we have before seen, is that of blood or natural affection between near relations; the satisfaction accruing from which the law esteems an equivalent for whatever benefit may move from one relation to another. This consideration may sometimes however be set aside, and the contract become void, when it tends in its consequences to defraud creditors, or other third persons, of their just rights. But a contract for any valuable consideration, as for marriage, for money, for work done, or for other reciprocal contracts, can never be impeached at law; and, if it be of a sufficient adequate value, is never set aside in equity; for the person contracted with has then given an equivalent to recom pense, and is therefore as much an owner, or a creditor, as any other person. . THESE valuable considerations are divided by the civilians * into four species. 1. Do, ut des: as when I give money or goods, on a contract that I shall be repaid money or goods for them again. Of this kind are all loans of money upon bond, or promise of repayment; and all sales of goods, in which there is either an express contract to pay so much for them, or else the law implies a contract to pay so much as they are worth. 2. The second species is, facio, ut facias; as, when I agree with a man to do his work for him, if he will do mine for me; or if two persons agree to marry together; or to do any other positive acts on both sides. Or, it may be to forbear on one side on consideration of something done on the other; as, that in consideration A, the tenant, will repair his house, B, the landlord, will not sue him for waste. Or, it may be for mutual forbearance on both sides; as, that in consideration that A will not trade to Lisbon, B will not trade to [ 445 ] Marseilles; so as to avoid interfering with each other. 3. The third species of consideration is, facio, ut des: when a man agrees to perform any thing for a price, either specifically mentioned, or left to the determination of the law to set a value to it. As when a servant hires himself to his master for certain wages or an agreed sum of money: here the servant contracts to do his master's service, in order to earn that specific sum. Otherwise, if he be hired generally; for then he is under an implied contract to perform this service for what it shall be reasonably worth. 4. The fourth species is, do, ut facias: which is the direct counterpart of the preceding. As when I agree with a servant to give him such wages upon his performing such work: which, we see, is nothing else but the last species inverted: for servus facit, ut herus det, and herus dat, ut servus faciat. A CONSIDERATION of some sort or other is so absolutely necessary to the forming of a contract, that a nudum pactum, or agreement to do or pay any thing on one side, without any compensation on the other, is totally void in law; and a man * Ff. 19. 5. 5. m cannot be compelled to perform it'. As if one man promises to give another 1007., here there is nothing contracted for or given on the one side, and therefore there is nothing binding on the other. And, however a man may or may not be bound to perform it, in honour or conscience, which the municipal laws do not take upon them to decide; certainly those municipal laws will not compel the execution of what he had no visible inducement to engage for; and therefore our law has adopted the maxim of the civil law ", that ex nudo pacto non oritur actio. (3) But any degree of reciprocity will prevent the pact from being nude; nay, even if the thing be founded on a prior moral obligation (as a promise to pay a just debt, though barred by the statute of limitations), it is no longer nudum pactum. And as this rule was principally established, to avoid the inconvenience that would arise from setting up mere verbal promises, for which no good reason could [446] be assigned it therefore does not hold in some cases, where such promise is authentically proved by written documents. For it a man enter into a voluntary bond, or gives a promissory note, he shall not be allowed to aver the want of a consideration in order to evade the payment: for every bond from the solemnity of the instrument", and every note from the subscription of the drawer carries with it an internal evidence of a good consideration. Courts of justice will therefore support them both, as against the contractor himself; but not to the prejudice of creditors, or strangers to the contract. (4) 1 Dr.'& St. d. 2. c. 24. m Bro. Abr. tit. dette. 79. • Plowd. 308, 309. Salk. 129. P Hardr. 200. 1 Ch. R. 157. (3) Though the position is true for which these authorities are cited, yet upon reference to the originals, it will be seen, that much weight cannot be attached to either of them. (4) The doctrine of consideration is not, perhaps, so fully or so correctly stated in this paragraph as might have been expected. 1. From the various decisions on the subject, it should seem that there is a distinction in certain cases, as to the necessary consideration between an implied and an express promise. An implied promise is that which the law raises from previous circumstances passing between the parties, and therefore the foundation must be something, which has legal value. With this restriction it |