perform, but upon good and sufficient consideration; as we shall [442] see under our next division. 4 IX. A contract, which usually conveys an interest merely in action, is thus defined: "an agreement upon sufficient consideration, to do or not to "do a particular thing." 5 From which definition there arise three points to be contemplated in all contracts; 1. The agreement: 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 law; wherefore it could not be transferred to another person by the strict rules of the ancient common law; for no chose in action could be assigned or granted over, (d) 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 ancient 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: (e) 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. (ƒ) This contract or agreement may be either express or implied. [443] 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 d Co. Litt. 214, e Dyer, 30. Bro. Abr. tit. chose in action, 1 & 4. f 3 P. Wms. 199. (4) It will be remarked that the observations of the learned Commentator in the text, contain but a very small part of the law of contracts, which has so greatly increased since his work was published. The more ancient books and present abridgments, are very defective in information upon this subject; and the student must therefore resort to the modern elementary works. See Powel on Contracts; Fonblanque's Treat. Eq.; Newland on Contracts; Comyn. on Simple Contracts; and Chitty's Cominercial Law, principally the 3d vol. (5) See definition and cases, 3 Chitty's Com. L. 2, 3. (6) See further, as to express and implied contracts and the cases, 3 Ch. C. L. 3. VOL. I. 92 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. (g) 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. 7 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 enter into the contract. [444] "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. (h) 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, (i) 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. (j) 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 recompense, and is therefore as much an owner, or a creditor, as any other person. 8 These valuable considerations are divided by the civilians (k) 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 g Inst. S. 14. 2. ↳ In omnibus contructibus, sive nominatis, sive innominatis, permutatio continetur. Gravin, l. 2. §. 12. (7) As to considerations in general, 3 Ch. C. L. 63 to 99. (8) If there be no fraud in the transaction, mere inadequacy of price would not be deerned, even in equity, sufficient to vacate a contract. 10 Ves. 292. 295. ↑ Brid. Eq. D. 359. Nor is mere folly without fraud a foundation for relief. 8 Price, 620. And on the question of executing an agreement, hardship cannot be regarded, unless it amount to a degree of inconvenience and absurdity, so great as to afford judicial proof that such could not be the meaning of the parties. 1 Swans. 329. But if there be such an inadequacy as to shew that the person did not understand the bargain he made, or that knowing it, he was so oppressed that he was glad to make it; this will shew such a command over the grantor as may amount to fraud. 2 Bro. Ch. C. 167. 2 Brid. Eq. Dig. 55. An action was brought on agreement to pay for a horse a barley corn a nail for every nail in the horse's shoes, and double every nail, which came to five hundred quarters of barley; and, on a trial before Holt, C. J. the jury gave the value of the horse from which it is to be collected, the bargain was considered valid. 1 Lev. 111. And in an action of assumpsit, in consideration of 2s. 6d. paid, and 47. 17s. 6d. to be paid, the defendant undertook to deliver two rye corns next Monday, and double every succeeding Monday, for a year, which would have required the delivery of more rye than was grown in all the world, on demurrer. Probyn, J. said, that though the contract was a foolish one, yet it would hold in law. and the defendant ought to pay something for his folly, and the defendant refund the 2s. 6d. and costs. 2 Ld. Raym. 1164. See further, 3 Chitty's Com. L. 158, 9. Bridgm. index, tit, Inadequaev of Price or Consideration. Chitty. 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 [445] trade to Lisbon, B will not trade to 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. And 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 cannot be compelled to perform it. (1) As if one man promises to give another 100l., 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 (m) the maxim of the civil law, (n) that ex nudo pacto non oritur actio. 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. 10 And as this rule was principally established, to avoid 1 Dr. & St. d. 2. c. 24. m Bro. Abr. tit. dette. 79. Salk. 129. n Cod. 2. 3. 10. & 5. 14. 1. (9) This must be read as confined to simple contracts; for no consideration is essential to the validity of a contract under seal, though in some cases creditors may treat voluntary deeds without consideration, as fraudulent and invalid. 7 T. R. 477. 4 East, 200. 2 Sch. & Lef. 228. Fonbl. Treat. Eq. 2d ed. 347. n. f. Plowd. 308, 9. The leading rule with respect to consideration is, that it must be some benefit to the party by whom the promise is made, or to a third person at his instance, or some detriment sustained at the instance of the party promising, by the party in whose favour the promise is made. 4 East, 455. 1 Taunt. 523. A written agreement, not under seal, is nudum pactum without consideration; and a negotiable security, as a bill of exchange, or promissory note, carries with it prima facie evidence of consideration, which is binding in the hands of a third party, to whom it has been negotiated, but may be inquired into between the parties to the bill, &c. themselves. The consideration for a contract, as well as the promise for which it is given, must also be legal. Thus a contract for the sale of blasphemous, obscene, or libellous prints, or for the furtherance of immoral practices, or contrary to public policy, or detrimental to the rights of third parties, or in contravention of the statute law, in all these cases the considerations are invalid, and the contracts void. See 3 Chitty's Com. Law, 63. et seq. (10) Where a man is under a moral obligation which no court of law or equity can enforce, the inconvenience that would arise from setting up mere verbal promises, for which no good reason could be assigned, (o) it therefore does [446] not hold in some cases, where such promise is authentically prov ed by written documents. For if a man enters 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, (p) and every note from the subscription of the drawer, (q)" 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. We are next to consider, thirdly, the thing agreed to be done or omitted. "A contract is an agreement, upon sufficient consideration, to do "or not to do a particular thing." " 12 The most usual contracts, whereby the right of chattels personal may be acquired in the laws of England, are, 1. That of sale or exchange. 2. That of bailment. 3. That of hiring and borrowing. 4. That of debt. 1. Sale, or exchange, 13 is a transmutation of property from one man to • Plowd. 308, 309. p Hardr. 200. 1 Ch. R. 157. q Ld. Raym. 760. and promises, the honesty and rectitude of the thing is a consideration. As if a man promise to pay a just debt, the recovery of which is barred by the statute of limitations; or if a man, after he comes of age, promise to pay a meritorious debt contracted during his minority, but not for necessaries; or if a bankrupt, in affluent circumstances after his certificate, promise to pay the whole of his debts; or if a man promise to perform a secret trust, or a trust void for want of writing by the statute of frauds. In such and many other instances, though the promise gives a compulsory remedy where there was none before, either in law or equity, yet as the promise is only to do what an honest man ought to do, the ties of conscience upon an upright man are a sufficient consideration. Ld. Mansfield, Cowp. 290. These are the words of lord Mansfield, but perhaps the promise would only be obligatory in the three first instances. How far moral obligation is a legal consideration, see a learned note to the reports by Messrs. Bosanquet and Puller, 3 vol. p. 249. But if a bankrupt after obtaining his certificate, an infant after coming of age, or any person where the demand is barred by the statute of limitations, promise to pay a prior debt when he is able, it has been held that this is a conditional promise, and that the plaintiff must prove the defendant's ability to pay. 2 Hen. Bl. 116. See further on this subject, 3 vol. Ch. C. L. 72. Christian. (11) Mr. Fonblanque, in his discussion of the subject of consideration, referred to in the last note but one, has taken notice of this inaccuracy: he says, what certainly is fully established, that, the want of consideration cannot be averred by the maker of a note, if the action be brought by an indorsee; but if the action be brought by the payee, the want of consideration is a bar to the plaintiff's recovering upon it. 1 Stra. 674. Bull. N. P. 274. 1 B. & P. 651. 2 Atk. 182 and Chitty on Bills, 68. An indorsee, who has given full value for a bill of exchange, may maintain an action both against him who drew it, and him who accepted it, without any consideration. 4 T. R. 339. 471. 5 Esp. Rep. 178. 3 Esp. R. 46. The most important authority respecting the consideration of written contracts is the case of Rann v. Hughes before the house of lords, in which lord chief baron Skynner delivered the unanimous opinion of the judges, that an administratrix was not bound by a written promise to pay the debt of her intestate out of her own property. See it reported in 7 T. R. 350. In that case, the chief baron said, that "all contracts are by the laws of England distinguished into agreements by specialty, and agreements by parol; nor is there any such third class as some of the counsel have endeavoured to maintain, as contracts in writing. If they be merely written, and not specialties, they are parol, and a consideration must be proved. He observed that the words of the statute of frauds were merely negative, and that executors and administrators should not be liable out of their own estates, unless the agreement upon which the action was brought, or some memorandum thereof, was in writing, and signed by the party. But this does not prove that the agreement was still not liable to be tried and judged of as all other agreements merely in writing are by the common law, and does not prove the converse of the proposition, that when in writing the party must be at all events liable." Chitty. (12) As to the subject matter of the contract, or thing to be done or omitted, in general see 3 Chitty's Com. L. 99 to 103. (13) As to contracts of sale, and purchase of personal property in general, and the effect of sta tute of frauds and warranties, and sale of ships, 3 Chitty's C. L. 272. to 308; and as to exchanges, id. 308, another, in consideration of some price or recompense in value: for there is no sale without a recompense: there must be quid pro quo. (r) If it be a commutation of goods for goods, it is more properly an exchange; but if it be a transferring of goods for money, it is called a sale; which is a method of exchange introduced for the convenience of mankind, by establishing an universal medium, which may be exchanged for all sorts of other property; whereas if goods were only to be exchanged for goods, by way of barter, it would be difficult to adjust the respective values, and the carriage would be intolerably cumbersome. All civilized nations adopted therefore very early the use of money; for we find Abraham giving "four "hundred skekels of silver, current money with the merchant," for the field of Macpelah; (s) though the practice of exchange still subsists among several of the savage nations. But with regard to the law of sales and exchanges, there is no difference. I shall therefore treat of [447] them both under the denomination of sales only; and shall consider their force and effect, in the first place where the vendor hath in himself, and secondly where he hath not the property of the thing sold. Where the vendor hath in himself the property of the goods sold, he hath the liberty of disposing of them to whomsoever he pleases, at any time, and in any manner; unless judgment has been obtained against him for a debt or damages, and the writ of execution is actually delivered to the sheriff. For then, by the statute of frauds, (t) the sale shall be looked upon as fraudulent, and the property of the goods shall be bound to answer the debt, from the time of delivering the writ. Formerly it was bound from the teste, or issuing of the writ, (v) and any subsequent sale was fraudulent; but the law was thus altered in favour of purchasors, though it still remains the same between the parties; and therefore if a defendant dies after the awarding and before the delivery of the writ, his goods are bound by it in the hands of his executors. (u) 14 If a man agrees with another for goods at a certain price, he may not carry them away before he hath paid for them; for it is no sale without payment, unless the contrary be expressly agreed. And therefore, if the vendor says, the price of a beast is four pounds, and the vendee says he will give four pounds, the bargain is struck; and they neither of them are at liberty to be off, provided immediate possession be tendered by the other side. But if neither the money be paid, nor the goods delivered, nor tender made, nor any subsequent agreement be entered into, it is no contract, and the owner may dispose of the goods as he pleases. (x) But if any part of the price is paid down, if it be but a penny, or any portion of the goods delivered by way of earnest (which the civil law calls arrho, and interprets to be "emptionis-venditionis contractae argumentum"), (y) [448] the property of the goods is absolutely bound by it; and the vendee may recover the goods by action, as well as the vendor may the price of them. (2) 15 And such regard does the law pay to earnest as an evidence s Gen. c. 23. v. 16. r Noy's Max, c. 42. t 29 Car. II. c. S. u Comb. 33. 12 Mod. 5. 7 Mod. 95. v 8 Rep. 171. 1 Mod. 188. (14) If two writs are delivered to the sheriff on the same day, he is bound to execute the first which he receives; but if he levies and sells under the second, the sale to a vendee, without notice of the first, is irrevocable, and the sheriff makes himself answerable to both parties. 1 Salk. 320. 1 T. R. 729. Christian. (15) The property does not seem to be absolutely bound by the earnest; for lord Holt has laid down the following rules, viz. "That notwithstanding the earnest, the money must be paid upon letching away the goods, because no other time for payment is appointed; that earnest only binds |