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. Jones 238
Wood V. Benson 252
V. Edwards 7
V. McCann 230
V. Pennell 113
V. Witherick 74
Woodgate v. KnatchbuU 244
Woodman v. Hubbard 257
Woodruff t'. Corey 155
Woodyard v. Dannock 287
Worcester v. Eaton 29
Worcester Bank v. Reed 282
Word V. Vance 51
Worrall v. Munn 110
Worten v. Howard 145
Worthinoton v. Hylyer 295
Wray v. Milestone 182
Wright V. Arnold 156
V. Bigg 17
V. Follen 5
V. Moore 220
V. Russell 282, 283
V. Steele 57
V. Turner 8
Wright V. Wright
Wroth V. Johns
z.
Zabriskie v. Smith
Zane's Devisees v. Zane
Zouch V. Parsons
Page
84
239
Yates V. Boen
78
V. Foot
288
Yeatman v. Woods
127
Yeomans v. Chatterton
241
York Bank's Appeal
122
Young V. Adams
81
V. Brick
131
V. Hughes
18S
V. Lorain
154
V. Smith
114
V. Timmins
234
Yundt V. Roberts
216
190
177
40
LAW OF CONTEACTS.
CHAPTER I.
OF THE DEFINITION AND DIVISION OF CONTRACTS ; AND OF THE
ASSENT OF THE PARTIES THERETO.
The most concise definition of a contract, to be found in
the books, is that given by the late Chief Justice Marshall, in
the case of Sturges v. Crowninshield, 4 Wheat. 197 : " A con-
tract is an agreement, in which a party undertakes to do, or
not to do, a particular thing." Blackstone's definition is, " an
agreement, upon sufficient consideration, to do, or not to
do, a particular thing." 2 Bl. Com. 446. Most other writers
not only include the consideration of a contract in its defini-
tion, but also term it a covenant or bargain between two or
more parties. Termes de la Ley. Powell on Con. (Introd.)
vi. 1 Burn's Law Diet. As, however, the word contract,
agreement, or bargain, ex vi termini^ imports more than one
party, it is tautology, in a professed definition, to speak of an
agreement " between two or more parties."
The word " covenant," used in many definitions given of
a contract, is objectionable. Strictly and technically taken,
as all words, employed in a definition of a subject of sci-
ence, should be, a covenant is a contract under seal, and is
therefore improperly adopted in reference to contracts gener-
ically; because it embraces only one specific class of con-
tracts.
The word " agreement " is most generally used, in the older
books, to denote what is now more usually termed a contract.
The introduction of Contract into the titles of the common
law is of modern date. Agreement is " the union of two or
1
2 LAW OF CONTRACTS.
more minds in a thing done or to be done."(a) In the lan-
guage of some of the old writers, it is called " a coupling or
knitting together of minds." (6)
It is provided by the English and American statutes of
frauds, that no person shall be charged on certain enumerated
promises, unless the agreement, on which the action is
brought, shall be in writing. In England, it is held that the
word " agreement " signifies a contract on consideration, and
therefore that the consideration of the promise must be shown
in writing. Wain v. Warlters, 5 East, 10, and subsequent
cases. If this be correct, Blackstone's definition of a contract
is tautological, and Marshall's should be preferred. More of
our state courts have adopted, than have rejected, this techni-
cal import of " agreement." See Browne on St. of Frauds,
§ 391. In Massachusetts, it is provided by statute that the
consideration of the promise needs not to be set forth or ex-
pressed in writing. Rev. Sts. c. 74, § 2, and Gen. Sts. c. 105,
§ 2. The supreme court had previously so held. Packard v.
Richardson, 17 Mass. 122.
If the word agreement does not import a contract on con-
sideration, is Blackstone's definition, or Marshall's, the most
accurate ? Both these definitions, as well as those of the
other writers just cited, include all contracts, the whole ge-
nus, whether of record, under seal, or by parol, recognizances,
grants of land, bonds, promissory notes, or mere oral prom-
ises. To the validity of a simple contract, one not under
seal, a legal and sufficient consideration is, by the common
law, indispensable. But a contract by specialty (under seal)
is valid without consideration, except an obligation in par-
tial restraint of trade ; or, which for the present purpose
amounts to the same thing, it imports a consideration, which
the party is estopped to deny.(c) A fortiori is this true of
(a) Plowd. 17. Com. Dig. Agreement, A. {h) Shep. Epit. 89.
(c) " A consideration is necessary to the validity of all contracts and
agreements not under seal," &c. ; 2 Kent Com. (1st ed.) 365 ; 1 Comyn on
Contracts, (1st ed.) 13. See also Plowd. 308. " A mere voluntary bond,
given without any consideration, is good." " A mere Avant of consideration
is not sulFiciont to avoid a bond." By Parker and Sewall, Js. 2 Mass. 161,
163. By Lord Kenyon, 7 T. R. 477. By Sir J. Jekyll, 3 P. W. 222.
DEFINITION. 3
contracts of record. Blackstone's definition, therefore, em-
braces all simple contracts, and, as to them, is accurate. But
as to those contracts which are valid without a considera-
tion, or import a consideration not to be denied, it is not accu-
rate. Marshall's definition covers this latter class of contracts,
and would seem to be sufficiently correct as to the former.
For in defining a contract, or any thing else, generically, it is
not merely unnecessary, but is improper, to include all the
incidents and qualities that appertain to the subject.
Some contracts are required to be written ; others need not
to be reduced to writing. Some require a consideration, or a
seal, to support them ; others do not. In a general definition,
therefore, it is not perceived why a consideration which forms
a constituent part of only one species of contracts should be
included, in order to render it complete. Why should not
writing and sealing, which are essential to the validity of
certain species of contracts, be also included, with equal
reason
?
The genus not only admits, but requires, a different defini-
tion from that which is proper for the several species. A sim-
ple contract has its appropriate definition ; and, in that defi-
nition, a consideration is to be included. Blackstone has
defined it with brevity and clearness-, in his attempt to define
contracts generally. A contract by specialty requires a differ-
ent definition. And a contract, in its broad generic sense, is to
be defined differently from either of its species ; and this has
been done, with singular precision and exactness, in the words
first quoted from the late chief justice of the United States.
Contracts may be divided into three classes, namely : 1.
Simple, or parol contracts ; 2. Specialties, or contracts under
seal ; and, 3. Contracts of record.
All contracts, not of record, are distinguished by the com-
mon law into agreements by specialty, and agreements by
parol. There is no such third class as contracts in writing.
If they be merely written and not specialties, they are parol.(a)
The rules of evidence are not the same, when applied to
(a) Eann v. Hughes, 7 T. R. 351, note. Ballard v. Walker, 3 Johns. Cas.
65, Perriae V. Cheeseman, 6 Halst. 1 74. 9 Mees. & Welsh. 92.
4 , LAW OF CONTEACTS.
written and unwritten contracts ; and, in the discussion of a
question of evidence, the late Chief Justice Parker (of Massa-
chusetts) says, " there are three classes of contracts, viz. :
specialties, written contracts not under seal, and parol or
verbal contracts." (a) So far as this remark relates to the
immediate point before the court, it is doubtless correct ; but
as it regards the artificial classification of contracts, it is at
variance with the authorities.
Attention will here be directed chiefly to contracts not under
seal, which, embracing as they do a great part of the business
of every man's life, and furnishing a large proportion of all
the cases litigated in our courts, constitute a very important
branch of the law. Many of the principles, however, which
govern this division of contracts, are equally applicable to the
others. But before proceeding to state the principles of the
law of contracts, it will be useful to take notice of the dis-
tinctions constantly recurring in the books, between express
and implied contracts, and executory and executed con-,
tracts.
The first of these distinctions obtains chiefly, though not
exclusively, in simple contracts. An express contract is one
which is actually and formally made, wherein the parties stip-
ulate in positive terms what is to be done or omitted. An
implied contract is not thus actually and formally made, but
is inferred from the conduct, situation, or mutual relations of
the parties, and enforced by the law on the ground of justice ;
to compel the performance of a legal and moral duty : (b)
as, where one man sends to the shop of another for articles
of food or clothing, or employs another to labor for him or to
render him other services, or where a guest enters an inn and
takes refreshment or lodging. In these and numberless sim-
ilar cases, though nothing is stipulated concerning price or
(a) Stackpole v. Arnold, 11 Mass. 30.
(b) " A great mass of human transactions depends upon implied contracts,
upon contracts which are not written, but which grow out of the acts of
the parties. In such cases, the parties arc supposed to have made those stip-
ulations which, as honest, fair, and just men, they ought to have made." By
Marshall, C. J., 12 Wheat. 341.
EXPRESS AND IMPLIED. 5
payment, the law is said to imply a contract and a promise
to pay a reasonable sum for the articles, refreshments, or
services received. Finch's Law, 181. So, if one has an-
other's money, which in equity and good conscience he ought
to restore, the law is said to imply a promise to restore it.
So, too, if a man undertakes any trust, office, or employment,
the law raises a promise on his part, to perform his undertak-
ing with integrity, diligence, and skill ; and, if he injures his
employer by a want of either of these qualities, he is liable
to an action on his implied contract, for reparation. (a) And
in England it was recently held, (Chief Justice Cockburn dis-
senting,) that when one contracts as agent, in the name of a
principal, he impliedly contracts that he has the authority of
the alleged principal, and that, if he has not, he is liable to
an action on such implied contract.(6)
There are also certain positive obligations imposed by law,
where there is no antecedent moral duty ; and here, in many
instances, a contract or promise is inferred to fulfil those obli-
gations. Thus, in some of the states, taxes may be collected
by suit, on a promise implied by law to pay the collector. In
Massachusetts, and in some of the other states, towns are
under an obligation imposed by statute, to relieve and sup-
port poor persons, and to reimburse expenses incurred by
other towns, in furnishing such relief to those who have fallen
into distress, where they have not a legal settlement ; and
may be compelled, in an action on an implied promise, to
reimburse such expenses to other towns, and to individuals
of their own body.(c)
In sound sense, divested of fiction and technicality, the
only true ground, on which an action upon what is called an
implied contract can be maintained, is that of justice, duty,
(a) 1 Comyn on Contracts, (1st ed.) 6.
lb) Wright V. Follen, 7 El. & Bl. 301 and 8 El. & Bl. 647.
(c) In the civil law, those contracts which correspond to the implied con-
tracts of the common law, are denominated ohligationes quasi ex contractu,
and Heineccius denies that they are founded on contract. El. Jur. sec. ord.
Inst. lib. iii. tit. 14, 28. Dictata, ib. ; Recitationes, ib. Most civilians, how-
ever, like the common lawyers, derive them ex consensu ficto vel prcesumpto.
Vinnius, in his commentary on the Institutes, denies it. Lib. iii. tit. 28.
t) LAW OP CONTRACTS.
and legal obligation. But, if the substance be secured, the
form of obtaining it is of little comparative importance, pro-
vided it be, as in this instance, simple and direct, and not
complicated, circuitous, and troublesome.
It is a general rule, that a contract shall not be implied,
where an express one is made : Expressmn facit cessare taci-
tiim.{a) Thus, where one became surety for his neighbor for
money borrowed of a third person, and took a bond of indem-
nity from the principal debtor, and, on being compelled to pay
the money, brought an action against the principal on the
implied promise, which the law raises in such cases, to reim-
burse the surety, it was held, that as he had taken a bond,
which was an express contract, he must resort to that alone
for indemnity.(^) So, where the hirer of a vessel, under a
charter-party, in which the owner covenanted that the vessel
should be tight, strong, &c., sued the owner, on an implied
contract, for reimbursement of expenses incurred for neces-
sary repairs made during the voyage, it was held, that the
only remedy was on the covenant expressed in the charter-
party, (c)
In both these cases, the express contract was under seal,
and the remedy thereon was an action of debt or covenant ;
whereas the remedy usually adopted, in cases of implied con-
tract, is the action of assumpsit ; and it is a legal maxim,
that the law will not raise an assumpsit where the party
resorts to a higher security. This, however, is not the ground
on which the first mentioned case was decided. The court
proceeded on the principle (as expressed by BuUer, J.), that
" promises in law exist only where there is no express stipu-
lation between the parties."
In other cases, where the express promise was of the same
and not a higher nature than an implied one, the same doc-
trine has been constantly applied. Thus, a plaintiff cannot
recover on an implied contract for goods delivered, when there
(a) Toussaint v. Martiiinant, 2 T. R. 105. Whiting v. Sullivan, 7 Mass.
107. Trask i;. Duvall, 4 Wash. C. C. Rep. 185.
(b) 2 T. R. 100.
(c) Kimball v. TiickiT, 10 Mass. 19G.
IMPLIED. I
is an existing express contract, in part performance of which
the goods were delivered.(a) Indeed, it is a familiar rule, that
while an express contract is still open, a party cannot resort
to an implied contract. (6)
To this rule, that promises in law (as implied promises are
often called) do not exist where there are express stipulations,
there are some exceptions. For example, if the terms of an«
express agreement have been performed, so as to leave a mere
simple debt or duty between the parties, the plaintiff may
recover on the implied contract ; (c) so, where an express
promise contains nothing more than the law will imply, an
action may be sustained on the implied promise ; (d) when
both parties have departed from the special agreement, the
law will raise an implied one ; (e) where an express contract
is void, on account of illegal consideration, a promise may be
implied to pay what was justly due before the illegal agree-
ment was made.(/) And when a party has failed to per-
form his express contract, according to its terms, but has per-
formed it defectively, and cannot maintain an action thereon,
yet if he has acted in good faith he may recover of the other
party, on an implied contract, the amount of the benefit, if
any, which that party has received.(jg') But if the failure to
(a) Wood V. Edwards, 19 Johns. 205. See also Duncan v. KiefFer, 3 Bia-
ney, 126. Robertson v. Lynch, 18 Johns. 456.
(6) Bui. N. P. 139. 1 Doug. 23. 2 East, 145.
(c) Gordon v. Martin, Fitzgibbon, 303. This is one of the earliest cases
on the subject, and was thus : The defendant wrote to the plaintiff, request-
ing him to perform certain services, and promising to pay him therefor, on
performance. Instead of suing the defendant on the special promise, and
setting it forth in the declaration, the plaintiff sued him in general indebita-
tus assumpsit, for services rendered at his request, and the action was sus-
tained. This is now a very usual course. Guy v. Gower, 2 Marsh. 275.
Bank V. Patterson, 7 Cranch, 299. Maynard v. Tidball, 2 Wis. 34.
(f/) Gibbs V. Bryant, 1 Pick. 119, This was the case of a surety, who had
a written (not sealed) promise of indemnity from the principal, and sued on
the implied promise. See also Cornwall v. Gould, 4 Pick. 444.
(e) Goodrich v. Lafflm, 1 Pick. 57. 12 Mod. 509, by Powell, J.
(/) Thurston v. Percival, 1 Pick. 415.
(g) Farnsworth v. Garrard, 1 Campb. 38. Chapel v. Hickes, 2 Crompt.
& Mees. 214 and 4 Tyrw. 43. Baillie v. Kell, 6 Scott, 398 and 4 Bing. N.
8 LAW OP CONTRACTS.
perform the express contract be intentional, it is such bad faith
that he can recover nothing.(a) Hence, when one engages to
perform service for another for a year or other definite time,
for a gross sum for the whole time, and he leaves the service
without the other's consent or any justifiable cause, he can
recover nothing for the service which he rendered. Such are
all the known decisions, except that of the court of New
Hampshire, in Britton v. Turner, 6 N. Hamp. 481.(6)
" As the law will not generally imply a promise, where there
is an express promise, so the law will not imply a promise of
any person, against his own express declaration ; because such
declaration is repugnant to any implication of a promise." (c)
This, however, can be true only where there is no legal duty
paramount to the will of the party making the negative
declaration. For where such duty exists, a promise will be
implied, even against the party's strongest protestations ;
as in the cases of taxes, and claims for relieving paupers,
before mentioned ; so if a husband wrongfully expel his wife
from his house, and forbid all persons to trust her on his ac-
count, declaring that he will not pay for any thing that is
furnished to her, the law, notwithstanding these express
declarations, implies a promise, on his part, to pay for the
supplies which any other person provides for her necessary
R. 652. 1 Archb. IST. P. (Amer. ed.) 255. Hayward v. Leonard, 7 Pick. 181.
Snow V. Inhabitants of Ware, 13 Met. 42. Gleason v. Smith, 9 Cush. 486.
Veazie v. Hosmer, 11 Gray, 396. Cardell v. Bridge, 9 Allen, 355. Norris
V. School District, 3 Fairf. 293. Wadleigh v. Sutton, 6 N. Hamp. 15. Gil-
man V. Hall, 11 Verm. 510. Gazzam v. Kirby, 8 Porter, 256.
(a) Wade v. Haycock, 25 Penn. State Rep. 382. See Davy v. Cracknell,
1 Post. & Finl. 59.
(b) Lilley v. Elwin, 11 Ad. & El. N. S. 752. Roscoe on Ev. (10th ed.)
350. Stark v. Parker, 2 Pick. 267. Olmstead v. Beale,^19 Pick. 528. Davis
V. INIaxwell, 12 Met. 286. Miller v. Goddard, 34 Maine, 102. Mullen v. Gil-
kinson, 19 Verm. 503. Reab v. Moor, 19 Johns. 337. Lantry v. Parks, 8
Cowen, 63. Monell v. Burns, 4 Denio, 121. Eldridge v. Rowe, 2 Gilman,
92. Schnerr v. Lemp, 19 Missouri, 40. Wright v. Turner, 1 Stew. 29.
Hutchinson v. Wetmore, 2 Cal. 310. It will be seen hereafter that infants
axe exempted from this rule.
(c) By Parsons, C. J. 7 Mass. 109.
IMPLIED. 9
support ; (a) and so (in this country) of a father, who wrong-
fully discards a minor child. (6)
In these instances, it is manifestly only by a fiction, that a
contract or promise is implied. And, indeed, the whole doc-
trine of implied contracts, in all their varieties, seems to be
merely artificial and imaginary. But in the present state of
the law, it is necessary, for the sake of legal conformity, to
adopt this phraseology. In a great majority of cases, which
occur under this head, there is, in England, no safe legal
remedy, except the action of assumpsit, in which a promise
and the breach thereof are required to be alleged, although
the defendant in fact never made any promise, but always
denied his liability, and expressly refused either to pay, or to
promise payment.
There are, indeed, some cases, in which a party may, at
his election, regard his injury as a breach of contract, or as
a tort, and may adopt the remedy appropriate to the alterna-
tive which he selects. Such cases, however, are not numerous ;
and when, they occur, there is no necessity to resort to an im-
plied contract, as there is another more apt course, which the
party may pursue, with assurance of obtaining legal redress.
The action of debt, in which it is not necessary to aver a
promise, is often concurrent with that of assumpsit on implied
promises. But in England the defendant was formerly per-
mitted to wage his law, in an action of debt on simple con-
tract, and it was to avoid this evil that assumpsit was there
substituted, and the doctrine of implied promises, if not first
introduced, was greatly extended, (c) And though in most
parts, if not the whole of this country, wager of law has never
been allowed, yet we have adopted the English remedy of
assumpsit, and the English doctrine of implied contracts.
If a new Registrum Brevium were now to be compiled, and
new forms of setting forth causes of action were devised, we
(a) Robison v. Gosnold, 6 Mod. 171. Harris v. Morris, 4 Esp. R. 41. 4
Bur. 2178. 4 Cush. 475.
(b) 13 Johns. 480. See also 16 Mass. 31. 3 Day, 37. 2 Cush. 352.
(c) 3 Reeves' Hist, of English Law, (3d ed.) 245.
10 LAW OF CONTRACTS.
should probably adapt them to the truth of the case, and forego
the fictions, that, at present, so extensively prevail.
Indeed, it was not without hesitation and resistance, that
this doctrine of implied promises found admittance into the
English law. The courts were slow and loath to sanction it.
As late as the 11th year of William III., Lord Holt asserted
from the bench, that the notion of promises in law was a
metaphysical notion ; that the law made no promises but
where there was a promise of the party ; (a) and in the third
of Anne, he said, " there is no such thing as a promise in
law." (b) The same great judge also pronounced him to be
a bold man, who first ventured on a general count in indebi-
tatus assumpsit, (c)
It was not until the latter part of the last century (long
after implied promises had been recognized in divers other
instances), that a surety, who had paid the debt of his prin-
cipal, was allowed to maintain an action at law against the
latter, on the implied contract of indemnity. He was com-
pelled to resort to the court of chancery for reimbursement, (d)
And it was not till 1800, that one of two sureties, who had
paid the whole of the principal's debt, was held in England to
be entitled at law to recover contribution from his co-surety, (e)
Thirteen years eai'lier (1787), Lord Chief Baron Eyre, in the
case of a bill in equity by a surety, demanding contribution
of a co-surety, asserted that contribution was not founded in
contract, but on a principle of justice and equity. (/) The
late Chancellor Kent affirmed the same doctrine, (g) The
courts of North Carolina refused to sustain an action at law,
in such case, until jurisdiction was conferred by statute, (h)
(a) 1 Ld. Raym. 538.
(6) 6 Mod. 131.
(c) 2 Strange, 933. See also Vaugh. 101. 3 Wooddeson, 169, 170.
(d) 2 T. R. 105.
(e) Cowell V. Edwards, 2 Bos. & Pul. 268. Co-sureties must be joint
undertakers, or the law of contribution does not hold. 3 Peters, 470. 13
Wend. 400.
(/) 1 Cox, 318 and 2 Bos. & Pul. 272.
Ig) 4 Johns. Ch. 338.
(h) Cam. & Norw. 216. 2 Car. Law Repos. 624.
IMPLIED. 11
One who becomes co-surety at the other surety's request,
is not liable to him for contribution, (a)
It is often announced as a rule, that the law does not im-
ply a promise of contribution, or of indemnity, among wrong-
doers. If two are sued for a joint tort, and judgment is
recovered against both, and execution is levied upon one of
them only, or if only one of them is sued, and has judgment
against him, which he satisfies, he cannot recover a moiety of
the other, (b) It is settled, however, by numerous decisions,
that this rule is restricted to cases in which the party seeking
contribution or indemnity knew, or must be presumed to have
known, when he did the act for which he was held respon-
sible, that it was unlawful, and that the rule is not applicable
to cases in which he acted in good faith in apparent further-
ance of justice, and in the exercise of his own or of other's
rights; although he thereby subjects himself to a third person's
action that sounds in tort. Hence, if an auctioneer sells
goods by direction of A., who untruly represents himself as the
owner, he and A. are, in law, joint wrong-doers ; and if the
true owner recovers damages of the auctioneer alone, or of A.
and him jointly, and he pays them, he can maintain an ac-
tion against A. on an implied promise of indemnity, (c) The
same is true of an officer who, by direction of a judgment cred-
itor, levies an execution on property not the judgment debt-
or's, and the true owner recovers judgment against him for
damages ; (d) or if such creditor directs an officer to arrest, as
(a) 2 Esp. R. 478. 2 El. & Bl. 297. 12 Mass. 102. 2 Dana, 296. 6 Gill
& Johns. 250. Pitman on Prin. & Surety, 150.
(b) Merry weather v. Nixan, 8 T. R. 186. Thwaite v. Warren, 6 Petersd.
Ab. (Amer. ed.) 149. Liugard v. Bromley, 1 Ves. & B. 117. Pecij v. Ellis,
2 Johns. Ch. 131. Dupuy v. Johnson, 1 Bibb, 565. By Jackson, J., 15 Mass.
521. By the civil law, when several persons were condemned hi solido to pay
■ money to another for an injury committed by them, he who paid the whole
had no legal recourse to the others for contribution ; but by the French law
(as stated by Pothier) he may recover contribution on the same principles
that are applied to a surety in recovering from his co-surety. 1 Pothier on
Obligations, by Evans, (1st Amer. ed.) 147. 2 ib. 70, (3d Amer. ed.) 245,
246. 2 ib. 69. 2 Johns. Ch. 137, 138.
(c) Adamson v. Jarvis, 4 Bing. 66 and 12 Moore, 241.
(d) Humphrys v. Pratt, 2 Dow & Clark, 288 and 5 Bligh N. S. 154.
12 LAW OP CONTRACTS.
the judgment debtor, another person, and he does so, and that
person recovers damages against him for false imprison-
ment, (a) A like application of this point of law is shown in
various other cases cited in the margin, (b)
As the law would doubtless have implied a promise of in-
demnity in those cases in which an express promise was held
to be lawful and was enforced by suit, a moment's digression
from the subject of implied contracts may here be allowed,
for the purpose of referring to those cases, in this connec-
tion.
The first two known suits on an express promise were
decided in Michaelmas term, 20 Jac. I. One was Fletcher v.
Harcot, Hutton, 55, and in Winch, 48, under the name of Bat-
tersey's case, and the other was Arundel v. Gardiner, Cro. Jac.
652. In the first of these cases, Harcot brought Battersey to
an inn kept by Fletcher, and affirmed to him that he had
arrested Battersey by virtue of a commission of rebellion, and
requested Fletcher to keep him safely over night, and promised
to save him harmless. Fletcher detained him, as requested.
The arrest was unlawful, and Battersey recovered of Fletcher
damages in an action for false imprisonment ; whereupon
Fletcher brought an action against Harcot, on his promise,
and recovered judgment against him. The other case, in Cro.
Jac, was an action by an officer against a judgment cred-
itor who had promised to indemnify him for levying an exe-
cution on goods, as of the judgment debtor, which were the
property of another, who recovered damages of the officer
for a trespass in seizing them. In this case the plaintiff had
(a) See Collins u. Evans, 5 Ad. & EI. N. S. 829, 830.
(b) Betts V. Gibbins, 2 Ad. & El. 57 and 4 Nev. & Man. 64. Toplis v.
Grane, 7 Scott, 643 and 5 Bing. N. R. 636. Childers v. Wooler, 2 El. & El.
287. Gower v. Emery, 18 Maine, 79. Jacobs v. Pollard, 10 Cush. 287. "
Bailey v. Bussing, 28 Conn. 455. St. John v. St. John's Church, 15 Barb.
346. Acheson v. Miller, 2 Ohio N. S. 203. Thweat's Admin, v. Jones, 1
Randolph, 328. Moore v. Appleton, 26 Alab. 633. These cases show that
Lord Ellenborough's opinion, expressed in Farebrother v. Ansley, 1 Campb.
345, and the decision by him in Wilson v. Milner, 2 Campb. 452, are not sus-
tained. See Lord Denman's opinion concerning those two cases, in 2 Ad. &
El. 74, 75.
EXECUTED AND EXECUTORY. ' 13
judgment. In Coventry v. Barton, 17 Johns. 142, a surveyor
of highways ordered C, who was working out his highway
tax, to remove a turnpike gate, which he (the surveyor) judged
to be a nuisance, and promised " to bear him out." C. and
others removed the gate, and he was sued by the turnpike
company for so doing, and had judgment against him. It
was decided that he might maintain an action against the
surveyor on his promise. See like decisions in Allaire v.
Ouland, 2 Johns. Cas. 5Q. Marsh v. Gold, 2 Pick. 285. Train
V. Gold, 5 Pick. 380. Avery v. Halsey, 14 Pick. 174. Ives v.
Jones, 3 Ired. 538. Stone v. Hooker, 9 Cowen, 154.
In all the foregoing cases, whether of express or of implied
promises of indemnity, and whether by parol or by specialty,
the party suing thereon (as before stated) must have acted
bond fide. He can have no redress for an act that was obvi-
ously unlawful. This was distinctly announced by Hutton, J.,
in Winch, 49 ; and in Hutton, 56, Lord Hobart said : " He
which doth a thing which may be lawful, and the illegality
thereof appear not to him, he which employs the party and
assumes to save him harmless, shall be charged." See also
Leavitt V. Parks, 2 Allen, (N. B.) 282.
The other distinction above mentioned as requiring notice,
before entering upon an examination of the principles of the
law of contracts, is that which is made in the books between
executed and executory contracts. An executed contract is
one, by which the subject of it is transferred immediately, or
by which the right and possession are transferred together ;
as if a horse is sold, paid for and delivered, or an agreement
to exchange horses is immediately performed, [a) An exec-
utory contract is rather an engagement to do a thing, than
the actual doing of it ; it is prospective ; as an agreement to
exchange horses to-morrow, or to build a house in six months.(6)
An agreement may be executed by one party, and executory
by the other ; as when one party performs, and the other is
trusted ; thus, where a loan of money is made, on a promise
(a) " A contract executed is one in which the object of the contract is per-
formed." By Marshall, C. J. 6 Cranch, 136.
(6) Plowd. 9.
14 LAW OF CONTRACTS.
to secure it by bond or mortgage ; the lender has executed
his part of the contract, but the borrower's contract remains
executory until performed, (a)
" An agreement, on sufficient consideration, to do or not to
do a particular thing," is, as has been before suggested, a
sufficiently accurate definition of a simple contract. Agree-
ment implies parties and their mutual assent ; and, in speaking
of lawful agreements, we necessarily include the legality of
the consideration and of the thing to be done or omitted. A
more extended definition, or description, was given by Mr.
Chitty, in an early edition of his Treatise on the Law of
Contracts : " A mutual assent of two or more persons compe-
tent to contract, founded on a sufficient legal motive, induce-
ment, or consideration to perform some legal act, or to omit
to do any thing, the performance whereof is not enjoined by
law." These several particulars, namely, the assent, the par-
ties, the consideration or inducement, and the legality of the
act or omission, require a separate and distinct examination.
) The assent must be mutual, reciprocal, concurrent. Over-
( tures or offers, not definitively assented to by both parties, do
i not constitute a contract, {b) There must necessarily be some
[ medium of communication, by which the "union of minds"
' may be ascertained and manifested. Among men, this me-
I diura is language, symbolical, oral, or written. A proposal
I is made by one party, and is acceded to by the other, in some
: kind of language mutually intelligible ; and this is mutual
assent. Persons who are deaf and dumb contract only by
symbolical or written language. The language of contracts
at auction is often wholly symbolical. A nod or wink by one
party, and a blow of a hammer given by the other, evince
mutual assent.
An offer, or proposal, may be retracted at any time before
(a) 2 Bl. Com. 447. 1 Powell on Cont. 234. 1 Comyn on Cont. (1st ed.) 3.
Q)) Kingston v. Phelps, Peake, 227. Gaunt v. Hill, 1 Stark. R. 10.
Bruce i;. Pearson, 3 Johns. 534. Burnet v. Bisco, 4 ib. 235. Tucker v.
Woods, 12 ib. 190. Craig v. Harper, 3 Cush. 158. Beckwith v. Cheever,
1 Foster, 41. Smith v. Gowdy, 8 Allen 566.
ASSENT. 15
it is accepted. A bidder at an auction may retract his bidding
before the hammer is down, (a) So any other offef, whether
written, oral, or symbolical, is subject to be retracted before
acceptance. Even where, by the terms of the offer, time is
given for the other party to accept or reject it, there is still
locus penitentice until the offer is accepted ; and an acceptance,
subsequent to the retraction, is of no avail, [b)
When by the terms of the offer no time is prescribed within
which it is to be acceded to, it will be considered as withdrawn,
or rejected, or at an end, if it is not seasonably accepted.
What is seasonable acceptance, in other words, how long
such unqualified offer shall continue open for acceptance,
if not expressly retracted, depends on the circumstances
of each case that may arise, and on the ordinary forms of
intercourse and business between the parties. If they are
together, this question is to be decided, not so much by the
time that elapses between the offer and acceptance, as by the
conduct of the parties during that time ; whether it be such
as reasonably to imply that a negotiation is still open; that
the offer is neither rejected nor withdrawn. A separation of
the parties, without reference to a future meeting, would,
probably, in most if not in all cases, be regarded as decisive
evidence that the offer no longer existed. When the parties
are apart, and an offer is made in writing, or by oral message,
a reasonable time is allowed for notice of acceptance to be
returned ; and this depends on the distance, the means of
early communication, the nature of the business, usage, and
various other circumstances, which may combine in a given
case, but which cannot be fixed beforehand by any determi-
nate rule. Every case of this sort, as well as the former, must
be decided on its own circumstances, (c)
(a) Payne v. Cave, 3 T. R. 148.
{b) Routledge v. Grant, 4 Bing. 6.'i3 and 1 Moore & Payne, 717. Craig v.
Harper, 3 Cush. 158. Boston & Maine Railroad v. Bartlett, 3 Cush. 224.
Falls V. Gaither, 9 Porter, 605. Gravier v. Gravier's Heirs, 15 Martin, 206.
See also Rutberfortli, lib. i. c. 12, §§ 14, 20. Bell on Sales, 32-38.
(c) See Loring v. City of Boston, 7 Met. 409. Averill v. Hedge, 12 Conn.
424. Inhabitants of Peru v. Inhabitants of Turner, 1 Fairf. 185. Emmott
1-. Riddel, 2 Post. & Finl. 142.
16 LAW OP CONTRACTS.
In oral and symbolical communications, when the parties .
are together, the assent is mutual and the contract completed,
when the acceptance of one party is announced to the other.
But in a case of written communications between parties
distant from each other, there is a difference, not only in wri-
ters, but also in courts, on the question whether acceptance
of an offer operates from the time when it is made, or from
the time when it is received, (a)
" A scruple," says Puffendorf, " has sometimes been moved,
whether the obligation in the promiser begins at the very
moment when the offer is accepted by the other party ; or
whether it is farther necessary, that the acceptance be made
known to the promiser ? And here it is certain, that a prom-
ise may be designed and expounded two ways ; either thus :
I engage myself to do the thing, if it shall be accepted ; or
thus : I engage myself to do the thing, if I shall understand
that it will be accepted. Now, which of the two senses the
promiser intended, is to be gathered and presumed from the
nature of the business. If the promise were a matter of pure
generosity, without restriction or limitation, we are to believe
it was meant in 'the former sense ; because here the promiser
hastens, as it were, to bind himself, without staying for any
formality in the other party. But those promises are to be un-
derstood in the latter sense which express some arbitrary or
mixt condition essential to the engagement." (b) But Barbey-
rac, in his notes on Grotius, (c) says this case is to be decided
in a quite contrary manner. " If one mentally accedes to an
offer, there is in fact an union of minds ; but assent must be
proved ; therefore, a manifestation of assent is necessary, as
matter of evidence. It follows, that assent to a proposal ope-
rates from the time it is expressed. When parties are together,
therefore, the assent to a proposal operates from the time it is
(a) There are cases, in which an acceptance of an offer is implied from the
conduct and perliaps from the silence of the party to whom it is made, and
in which no express notice of acceptance needs to be given. See Train v.
Gold, 5 Pick. 380.
(b) Puffendorf, lib. iii. c. 6, § 15. See also Vitriarius, lib. ii. c. 11, § 30,
Hutcheson's Moral Philosophy, lib. ii. c. 9, §§ 6, 7.
(c) Lib. ii. c. 11, § 15.
MUTUAL ASSENT. 17
conveyed to the proposer. When they are apart, and communi-
cate by message or letter, the assent operates from the time
when the party expresses his assent to the messenger, or puts
it on paper in the form of an acceding to the offer made to
him."
The court of King's Bench, in 1818, decided that the
acceptance of an offer operated from the time when it was
made, and not merely from the time when notice of it was
received, (a) That was a case in which the defendant had by
letter offered the plaintiff certain goods at a specified price, on
receiving notice of acceptance "in course of post;" but by
misdirection of his letter containing the offer, it was not re-
ceived in the regular course of the post to the place of the
plaintiff's residence, and he, on receiving it two days after-
wards, returned an answer by the first post, accepting the offer.
The court held that the contract was completed ; that as the mis-
direction of the letter was the error of the defendant, it should
not affect the plaintiff, who replied by the earliest post after
he received the offer, it must be deemed, as against the de-
fendant, to be made by the course of the post, within the
terms of the offer. And it is now the established law of
England that a contract is completed, when a letter declaring
the acceptance of an offer is seasonably posted ; and that the
party thus accepting is not answerable for casualties occurring
at post-offices, {b) So a contract is complete, when an offer
is made by an agent and an acceptance is communicated to
him, although he does not seasonably apprise the principal
that the offer is accepted, (c)
The supreme court of Massachusetts decided that an accept-
ance of an offer operates from the time when it is made
known, and not from the time when it is made. The case
was this : An insurance company, on the first of January,
offered by letter to insure a ship on certain terms. On the
(a) Adams v. Lindsell, 1 B. & Aid. 681.
(ft) Dunlop V. Higgins, 1 House of Lords Cas. 381. Duncan v. Topham,
8 C. B. 225. Potter v. Sanders, 6 Hare, 1. Stocken v. Collin, 7 Mees. &
Welsb. 515 and Hurlst. & Walms. 84.
(c) Wright V. Bigg, 15 Beavan, 592.
2
18 LAW OF CONTRACTS.
next day, they wrote another letter retracting the offer. The
first letter was received by the owner of the ship, on the third
of January, and he on that day replied to it, accepting the
offer, before he received their second letter. All the letters
were sent by mail and received by the parties on the second
day after they were written. The offer was therefore accepted
before the retraction was made known, and the retraction was
made before the acceptance was made known. It was decided
that there was no agreement to insure, (a)
The English doctrine above stated, is sustained by the courts
of other States, and by the supreme court of the United
States, (b)
This doctrine, however, is not applied to the acceptance of
a bill of exchange. The drawee is not bound by writing his
acceptance on it, if he change his mind and cancel it before
it is communicated to the holder, (c)
A contract may be made by telegraphic despatches, subject,
it is presumed, to the same rules that apply to contracts made
by letters transmitted by mail or otherwise, (d)
An offer, or proposal, must be accepted or assented to, in
the terms on which it is made. Thus, if an offer is made,
limiting the time or mode in which it is to be accepted, an
acceptance made after the time, or in a different mode, does
not constitute a mutual agreement. Such acceptance can be
regarded only as a new proposal by him to whom the offer
was made, and requires the subsequent assent of the other
party to make it a contract. As if a trader orders goods of
a specified quantity, or on certain terms of credit, and a less
(a) M'Culloch V. Eagle Ins. Co. 1 Pick. 278.
(b) Tayloe v. Merchants' Fire Ins. Co., 9 Howard, 390. Mactier i>. Frith,
6 Wend. 103. Brisban v. Boyd, 4 Paige, 17. Vassar v. Camp, 1 Kernan,
441. Averill 17. Hedge, 12 Conn. 424. Chiles v. Nelson, 7 Dana, 282. Falls
V. Gaither, 9 Porter, 613. Levy v. Cohen, 4 Georgia, 13. The Palo Alto,
Daveis, 343. Hutcheson v. Blakeman, 3 Met. (Ky.) Rep. 80. See also
Shaw on Obligations, 12.
(c) Cox V. Troy, 5 B. & Aid. 474 and 1 Dowl. & Ryl. 38. Wilde v. Sheri-
dan, 11 Eng. Law & Eq. Rep. 382.
(d) Taylor v. Steamboat, 20 Missouri, 254. Durkee v. Vermont Central
Railroad, 29 Verm. 127.
MUTUAL ASSENT. 19
quantity is forwarded, or on a shorter credit, he is not bound
to receive and pay for them, (a) So, where an offer, by letter,
to purchase goods, required an answer by the return of the
wagon by which the letter was sent, and the offer was ac-
cepted by a letter sent by mail to a different place from that
to which the wagon was to return, it was held that there was
no contract, (b) By accepting goods sent on different terms,
or by waiving the difference in time or place, the party is re-
garded as acceding to the modified or varied terms proposed
by the other, and thus the assent becomes mutual and the
contract complete.
It was formerly supposed, from the case of Cooke v. Ox-
ley, as reported in 3 T. R. 653, that when time is given by one
party for the other to accept the offer, the party making such
offer is not bound by the other's acceptance, within the time
mentioned. Oxiey offered to sell Cooke two hundred and
sixty-six hogsheads of tobacco, at a certain price, and gave
him, at his request, till four o'clock in the afternoon of the
same day, " to agree to, or dissent from the proposal." Be-
fore that hour, Cooke gave Oxley notice of his assent to the
proposal. But it was held, that Oxley was not bound ; that
there was no contract. Such appears, from the declaration
given in the report and from the marginal abstract of the case,
to have been the decision, and so it was long understood and
set forth in the books, (c) The supreme court of New
York so understood it, and inclined to regard it as sound
law. (d) The supreme court of Massachusetts also consid-
ered it in the same light, but questioned the soundness of
the decision, (e)
If the case were accurately reported, it would be not only
(a) Bruce v. Pearson, 3 Johns. 534. Tuttle v. Love, 7 ib. 470. 1 Campb.
53. 2 Barn. & Cres. 37.
(6) Eliason v. Henshaw, 4 Wheaton, 225. Routledge v. Grant, 4 Bing. 653.
Duke V. Andrews, 2 Exch. 290.
(c) Bac. Ab. Assumpsit, (Guillim's ed.) C. 2 Comyn on Contracts,
(Isted.) 211. 3 Stark. Ev. (4th Amer. ed.) 1634. Chitty on Contracts,
(1st ed.) 108. 6 Petersd. Ab. (Amer. ed.) 130, 136.
(d) Tucker v. Woods, 12 Johns. 190.
(e) 1 Pick. 281.
20 LAW OF CONTRACTS.
unreasonable and inconsistent with good faith, but at vari-
ance with acknowledged principles of law, and with all pre-
vious and subsequent decisions, except that of the court of
Tennessee, in the case of Gillespie v. Edmonston, 11 Humph.
553. Had Oxley retracted his offer before it was accepted
by Cooke, the acceptance afterwards would not have bound
him. But the offer was not retracted, nor rejected, nor at an
end, either expressly or by implication, before it was ac-
cepted. If, after the offer was made, the parties had separated,
and no time had been given for future acceptance, an accept-
ance afterwards would have been too late. Whether, in such
case, the offer would, in law, be considered as refused, or
withdrawn, or as having expired, it is not material to inquire.
It would not, at any rate, be considered as obligatory. By the
terms of the offer in question, it was to remain open (unless
previously retracted, accepted, or rejected), until four o'clock.
It was a continuing offer.
Lord Kenyon's summary opinion is in these words :
" Nothing can be clearer than at the time of entering into
this contract, the engagement was all on one side ; the other
party was not bound ; it was therefore nudum pactum" And
Buller, J., said : " It is not stated that the defendant did agree,
at four o'clock, to the terms of the sale." These expressions
are strong evidence that the question was not understood by
the court as it has been by others, and that the declaration
and the point adjudged are misstated in the report. For in all
contracts, the offer is made by one side, and the other is never
obliged to accept it. And Lord Kenyon could not mean to
say that no acceptance binds the party who makes the offer ;
and yet his assertion would involve this consequence, and pre-
vent the completion of any contract whatever. If he who
makes an offer is not bound by its acceptance, because the
other party is not obliged to accept it, it follows, by parity of
reason, that he who accepts the offer is not bound by the ac-
ceptance, because the other party is not obliged to receive it;
and, thus on this ground, no binding agreement could ever be
made. 5 Barr, 343.
There is further and conclusive evidence that the case is
MUTUAL ASSENT. 21
misreported. In Humphries v. Carvalho, 16 East, 47, Bay-
ley, J., said : " The question in Cooke v. Oxley arose upon
the record, and a writ of error was afterwards brought on the
judgment of ^his court," (King's Bench), " by which it ap-
pears that the objection made was, that there was only a pro-
posal of sale by the one party, and no allegation that the other
party had acceded to the contract of sale." See also 4 Bing.
660 and 1 Moore & Payne, 732.
It was argued, in defence of the supposed doctrine of Cooke
V. Oxley, that it is a principle of contracts, that both parties
must be bound, in order to bind either. This means, however,
nothing more than that the assent of both parties is necessary
to constitute an agreement ; but both parties may as well
consent that the one shall be bound, and the other retain, for
a specified time, his option to be bound or not, as that any
other arrangement shall be made. And in common business
it often happens that contracts are made, optional with one
party and obligatory on the other, (a) Where one buys a
horse under an agreement that it may be returned in a limited
time, if it prove restive or do not suit the purchaser's family,
the seller is bound to receive the horse, if returned within
the time, but the buyer is not bound to return it. {b) So if
one engages to take and pay for grain, from five hundred
to one thousand bushels, he is bound to take one thousand
bushels, or five hundred, or any intermediate quantity ; but
the other is not obliged to deliver more than the smallest
quantity mentioned, (c)
It was further argued, in support of said supposed decision,
that mutual promises, where one is the consideration of the
other, must be made at the same time, or they are not bind-
ing, {d) But no proposal and acceptance can be strictly si-
multaneous. The medium of communication among men does
(a) 7 Ad. & El. 23, by Patteson, J, 5 Mees. & Welsh. 501, by Parke, B.
5 Pick. 385. 8 Gray, 213.
(b) See Clarke's case, Clayton, 118.
(c) 3 Johns. Cases, 81. 2 ib. 253. 16 East, 45. 1 T. R. 135. 4 Greenl.
497.
(d) " The promises must be at one instant." Nichols v. Raynbred, Hobart,
S2 LAW OF CONTRACTS.
not alloAv it. One must precede the other. And if the party
making the proposal is bound by the acceptance, when tend-
ered immediately (as is universally admitted), it is not easy
to perceive why he is less bound, when it is tendered within
the time specified by the proposal itself. The offer, in the
latter case, is a continuing offer, and may be regarded in law
as made at the last moment of time preceding the acceptance ;
and the acceptance and offer are, in legal contemplation, " at
one instant." {a)
This rule concerning mutual promises, when examined, will
be found to import nothing more than that there must be
reciprocal assent (as it has already been explained) to consti-
tute a contract. The rule has been well discussed on a
question of pleading. In setting forth such promises in a dec-
laration, it is necessary that they should be alleged to be
concurrent. According to the precedents and decisions, the
party suing, when he has stated the offer on the one part, must
aver, that thereupon, or then, an acceptance thereof was made
on the other part, (b) Alleging the acceptance or promise, on
the other part, to have been made " afterwards on the same
day," has been held to be bad. (c)
Though this may at first appear to be hypercritical, it will
be found, on consideration, to be sound and reasonable. It is
a most salutary rule of pleading, that a party must set forth
his cause of action or defence, with reasonable certainty. It
must, to say the least, not appear, from his own showing and
statement, that he has no cause of action, or no ground of
defence ; nor that he may have none, although his statement
be taken as wholly true. But in setting forth an offer on a
given day, and averring an acceptance afterwards, though on
the same day, a party does not show necessarily that there
was any mutual assent. The offer, as has before been stated,
may have been retracted, or rejected, or have expired, within
an hour from the time it was made. And as this depends on
(a) See 1 B. & Aid. 683. 6 Wend. 115. 8 Merlv. 454, 455.
(ft) In point of form the ofler and acceptance, usually, are both described
as promises.
(c) See 1 Caines, 584. 12 Johns. 400.
DURESS. 23
such a variety of circumstances, peculiar to every case, it
would be a great stretch of credulity, as well as of legal pre-
sumption, to assume that an acceptance of an offer, on the
same day it is made, does of course evince a mutual concur-
rent assent of the parties, according to the principles before
suggested.
Strict, however, as this doctrine of alleging mutual prom-
ises undoubtedly is, it does not help to support the decision
in Cooke v. Oxley, as formerly understood. For by alleging
the offer on a certain day, according to its terms, and averring
an acceptance at or before the hour allowed therefor, a con-
current assent is shown, and mutual promises at the same
instant. For there was, as has been repeatedly suggested, a
continuing offer in that case, as well as in those which have
been cited, where an offer was sent and an acceptance re-
turned by mail. In the case of Adams v. Lindsell, (a) the
court say, " The defendants must be considered in law as
making, during every instant of the time their letter was trav-
elling, the same identical offer to the plaintiff; and then the
contract is completed by the acceptance of it by the latter."
That case directly impugns the doctrine of Cooke v. Oxley
(which was pressed upon the court}, and may be considered
as having overruled it, if indeed it ever was decided on the
ground so generally supposed.
Assent must not only be mutual but free. Hence agree- <;
ments extorted by violence or terror (called duress) are invaHd. ^
Duress, that avoids a contract, is of two kinds ; duress of im-
prisonment, and duress per minas. Such duress of imprison-
ment is the illegal restraint of personal liberty, whether in
a prison or elsewhere ; or illegal force or privation imposed
upon a person lawfully imprisoned, for the purpose of ex-
torting some promise or contract from the person thus re-
strained. (6)
It seems to have been formerly held, that imprisonment
(a) 1 B. & Aid. 683.
(b) 2 Inst. 482. Bac. Ab. Duress, A. Shep. Touch. 61. Perkins,
§17. Finch, 102. Shaw on Obligations, 43-48.
24 LAW OF CONTRACTS.
under regular and formal legal process, though malicious and
without probable cause, did not constitute such duress, {a)
Executio juris non habet injuriam. But great injuries are
sometimes inflicted under color of legal process. And it has
been decided in Massachusetts, New Hampshire and New
York, that process, though in form regular and legal, sued out
maliciously and without probable cause, to arrest and im-
prison a man, is such duress as will avoid a deed given by
him to procure his deliverance, {h)
So though a person is arrested on a lawful warrant, by a
proper officer, yet if one of the purposes of the arrest is
thereby to extort money or enforce the settlement of a civil
claim, such arrest is false imprisonment, and a release or con-
veyance of property by means of the arrest is void, (c)
As a general rule, imprisonment by order of law is not
duress that will avoid a contract ; and therefore, if a man, sup-
posing that he has cause of action against another, cause him
to be arrested and imprisoned by lawful process, and the de-
fendant voluntarily execute a deed or note, or make any
other promise, to obtain his deliverance, he cannot avoid such
contract by duress of imprisonment, although the plaintiff had
no cause of action : [d) a fortiori., if a man, under arrest or
imprisoned for a just cause, make an agreement voluntarily
for the purpose of procuring his liberty, he cannot avoid it
on the ground of duress, (e) If the process, under which a
party is arrested or imprisoned, be void ; as if the court
have no jurisdiction of the cause, or no authority to issue
such process ; the arrest or imprisonment is, of course, un-
lawful, and an obligation given by the prisoner (as a bail
{(i) 1 Lev. 68, 69.
(&) Watkins v. Baird, 6 Mass. 506. Richardson v. Duncan, 3 N. Hamp.
508. Severance v. Kimball, 8 ib. 386. Strong v. Grauuis, 26 Barb. 122.
See also Aleyn, 92. Bui. N. P. 172.
(c) Hackett v. King, 6 Allen, 58.
(d) 6 Mass. 511. Hobart, 266, 267. But see Bui. N. P. 172. Termes
de la Ley, Duress, 1 Lil. Ab. 494. In these books it is laid down that, if the
cause of action is not good, a bond so given is voidable for duress.
(e) 3 Caines, 168. 2 Inst. 482. 3 Leon. 239. Perk. § 18. 1 Fairf. 325.
1 Bailey, 84. 4 Harrington, 311.
DUEESS. 25
bond,&c.), for his enlargement, is voidable for duress, (a) Du-
ress per minas is, 1. for fear of loss of life ; 2. of loss of mem-
ber ; 3. of mayhem ; 4. of imprisonment, [h) And this fear
must be upon sufficient reasons : Non siispicio cnjuslibet vani
et meticulosi hominis, sed talis qui possit cadere in virum con-
stantem. Menace of a mere battery, or to destroy property,
even to burn one's house, seems, by the preponderance of
authority, not to amount to duress, (c) A firm man, vir
constans, i\ is said, may withstand such menaces ; and if
they are executed, the party injured may recover damages in
proportion to the injury done him. " This, however," as Mr.
Starkie observes, " is clearly a very inadequate reason for the
distinction, and may be frequently false in fact." {d) And
Mr. Chitty doubts whether, at the present day, the threat to
commit so serious an injury as the burning of a house would
not be considered such duress as will avoid a contract, (e)
In South Carolina, the courts have holden that there may
be cases in which a man's necessities are so urgent and press-
ing, that duress of his goods may avoid his acts ; (/) and
where the party is unable to make satisfaction, or where there
is no speedy tribunal to enforce it, it is there said, as the
reason of the law ceases, the law itself does not apply. The
contrary, however^ is the present law of England, as declared
by Lord Denman, in 11 Ad. & El. 990 and 3 P. & Dav. 600,
601, and by Baron Parke, in 3 Mees. & Welsh. 650, and in 6
Exch. 348. The old case in the Year Book, (20 Ass. pi. 14),
cited in 1 Bro. Ab. 258 b. and 1 Rol. Ab. 687, in which a
(a) Cro. Eliz. 647. 4 Inst. 97. S. P. 15 Johns. 256. See also 7 T. R.
376, where Lord Kenyon says that a bail bond, executed by a person under
arrest, where the affidavit to hold to bail is insufficient, may be avoided on the
ground of duress. See also 8 Greenl. 426. 21 Conn. 598. 17 Pick. 252. 11
Cush. 247. 5 Cranch C. C. Rep. 124.
(h) 2 Inst. 483. Bac. Ab. Duress, A. 5 Hill, 154. 10 Allen, 76. 1
Daly, 71.
(c) Co. Litt. 253, b. 2 Inst. 483. Perkins, § 18. 1 Bl. Com. 130. 6 East,
126,140. 11 Mod. 203. 2 Strange, 917. Hardin's Rep. 605. 2 Gallison,
337. 2 Met. (Ky.) 447.
(d) 2 Stark. Ev. (4th Amer. ed.) 482.
(e) Chit, on Con. (1st ed.) 56, (10th Amer. ed.) 219.
(/) 1 Bay, 470. 2 Bay, 211.
26 LAW OF CONTEACTS.
deed obtained by duress of the grantor's cattle, and not of his
person, was avoided, is not regarded as law. Yet if one's
goods or other property be wrongfully detained, and he pay
money simply to obtain possession, and not by way of adjust-
ing the matter, he may recover it back. See Shaw v. Wood-
cock, 7 Barn. & Cres. 84, 85. 3 Mees. & Welsh, ubi sup.
Close V. Phipps, 7 Mann. & Grang. 586 and 8 Scott N. R.381.
Elliott V. Svvartwout, 10 Peters, 137. Cobb v. Charter, 32
Conn. 358. Chase v. Dwinal, 7 Greenl. 134, and numerous
other cases. But in England such recovery is had on the
ground that the money was not paid voluntarily but under
compulsion, and not on the ground that it was paid under
duress, as technically understood. " In this class of cases, the
question always is, whether the payment was voluntary or in-
voluntary. See cases, in which payments were held to be vol-
untary, collected in Chit, on Con. (10th Amer. ed.) 698 Sf seq.
This doctrine of duress may be summarily stated thus, viz. :
Any agreement made by a person under coercion by illegal
imprisonment, or under illegal force or privation imposed
on him while legally restrained, or under threats which in-
duce a reasonable fear of loss of life, or of mayhem, or of un-
lawful imprisonment, are not binding and may be avoided.
Those contracts only that are made under fear of unlawful
imprisonment, and not those made under fear of imprison-
ment which would be legally justifiable, can be avoided for
duress, (a)
This limited sphere for the operation of the doctrine is
characteristic of the age in which it was thus limited ; an
age in which personal valor was deemed to be in a great
measure its own reward, and when he who chose to resort
to the law for redress of minor injuries was regarded as homo
vanus et meticulosus. A high regard, however, for personal
liberty is evinced by the effect which is allowed to fear of
restraint, while it is denied to fear of the most serious injury
to property. Lord Coke says (2 Inst. 483) " it is observable
(a) Wilcox V. Howland, 23 Pick. 167. Eddy v. Herrin, 17 Maine, 338.
Alexander v. Pierce, 10 N. Hamp. 494. Nealley v. Greenough, 5 Foster,
832.
DURESS. 27
how fear of imprisonment is more grievous and odious in
law, than the fear of battery." (a)
There are numerous instances in which a court of ch^-n-
cery reUeves against contracts entered into by a compulsion
that is not sufficient to avoid them at law. These cases,
however, are decided, each on its peculiar circumstances, and
are not properly within the scope of the present examination.
So a will (which is not strictly a contract) may be avoided
on the ground of undue influence and restraint exercised
upon the testator, though not amounting to duress that
would avoid his bond or note. It is said in an old case, (b)
that if a man makes a' will in his sickness, by the over im-
portunity of his wife, to the end he may be quiet, it shall be
set aside as made by restraint. This is not now regarded as
law ; but importunity (legally taken) " must be in such a
degree as to take away from the testator free agency." It
must be such as he is too weak to resist, " such as will ren-
der the act no longer the act of the deceased." (c)
The duress that will avoid a contract must be done to the
party himself. If, therefore, two or more make an obligation
by reason of duress to one of them only, it can be avoided
only by him upon whom the duress was practised. A surety
is held to perform the engagement made by himself and prin-
cipal, though it was made solely to relieve the principal from
duress, (d) This rule of law, however, was held, in Thomp-
son V. Lockwood, 15 Johns. 256, not to be applicable to a
surety who had executed a bond to a sheriff, which the sheriff
had no authority to require of the principal, and which a
statute had declared should be void. The decision was rested
(a) In Foshay v. Ferguson, 5 Hill, 158, Bronson, J., said he entertained
no doubt that a contract procured by threats and fear of battery, or the de-
struction of property, might be avoided on the ground of duress.
(h) Hacker v. Newborn, Style, 427.
(e) By Sir John NichoU, in Kinleside v. Harrison, 2 Phillimore, 551.
(d) Shep. Touch. 62. Mantel v. Gibbs, 1 Brownlow, 64. Huscombe v.
Standing, Cro. Jac. 187. Wayne v. Sands, 1 Freeman, 351. Simms v.
Barefoot's Ex'ors, 2 Haywood, 402. Jones v. Turner, 5 Littell, 147. Kobin-
son u. Gould, 11 Cush. 55. M'Clintick v. Cummins, SM'Lean, 158. The
contrary was held in Evans v. Huey, 1 Bay, 13.
28 LAW OF CONTRACTS.
on the statute and not on the common law. But in United
States V. Tingey, 5 Peters, 115, and Boston v. Capen, 7 Cush.
146, it was decided that, at common law, a bond exacted by
a public officer, who had no authority to require it, was void
both as to principal and surety. See also Newcomb v. Wors-
ter, 7 Allen, 198. Commonwealth v. Field, 9 Allen, 584.
Commonwealth v. Collins, 11 Gray, 465. The State v. Buf-
fum, 2 Foster, 267. Billings v. Avery, 7 Conn. 236.
Husband and wife are regarded in law, for most purposes,
as one person. An obligation, therefore, made by the husband,
to relieve the wife from duress, may be avoided, as if the
duress had been done to himself, (a) But in no other case
can a man avoid his deed by duress to another, let him be re-
lated how he will, (b)
It is said in some of the old books, that duress by a
stranger to the deed, unless practised at the instance of the
obligee, will not avoid the deed, (c) But the better opinion is,
that a deed so procured is void as to the party to whom it is
made. " If one threaten a man to kill him, unless he will
seal a deed to him and three others, and he do so, this is void
as to all the four. For if one threaten another to kill or maim
him, if he will not seal a deed to a stranger, and thereupon he
(a) 1 Sid. 123. Shep. Touch. 61. 2 Brownlow, 276. Bac. Ab. Duress,
B. In Eadie v. Slimmon, 26 N. Y. Rep. 9, the New York court of appeals
decided that greatly terrifying a woman, by threats of prosecuting her hus-
band for alleged embezzlement, is such coercion as to avoid a transfer of her
separate property thus obtained. And see 10 INIin. 448.
(b) So says Twisden, J. (1 Freeman, 351), and so it is expressly laid down
in Shep. Touch. 61. Such, doubtless, is the weight of authority. In a case
in North Carolina (2 Haywood, 402), a bond executed by a mother, to pro-
cure the enlargement of her son, who was under duress, was held to be binding
on her. There are authorities, however, which countenance a more liberal
extension of the doctrine of duress. Wylde, J., says (1 Freeman, 351) "If
the duress be to a father or brother, and a son enter into bond, this is a du-
ress to the son, and he may plead it." So it is said (2 Brownlow, 276) that a
father may avoid his deed that he hath sealed by the duress of the imprison-
ment of his son, but not of his servant ; and that mayor and commonalty
may avoid a deed sealed by duress of imprisonment of the mayor. See also
1 Rol. Ab. 687. Bac. Ab. Duress, B.
(c) Keilwey, 154 a.
DUEESS. 29
do so, this is void as if it were to the party himself." (a) And
such is the rule of the civil law. (b) It has been held, from
the earliest times, that duress irnposed by a stranger to the
contract, if by the procurement of the party to be benefited,
will vitiate it. (c)
A party who has made a contract while under duress
may, by his subsequent conduct, render it valid or estop him-
self to deny its validity. As if one makes an obligation by
duress, and afterwards, when he is at liberty, takes a defea-
sance upon it. (d) So if a man acknowledges a bargain and
sale of lands, &c. (in England), in the court where the deed
is to be enrolled, or before the officer who makes the enroll-
ment, and it is enrolled, he cannot afterwards plead duress, (e)
And where a feme covert acknowledges a deed executed by
her, on a private examination before a magistrate, it can-
not be avoided for duress. (/) In these instances, an actual
inquiry is instituted concerning the will of the party. But in
Massachusetts, acknowledging a deed is regarded as of such
trivial importance, that it does not estop the party nor his
heirs to avoid it for duress, (g) It was always held, however,
that if a party under duress promises, for the purpose of re-
gaining his liberty, to execute a bond org)ther instrument, and
afterwards, while at large, performs his promise, it is never-
theless avoidable, (h)
A marriage contract obtained by duress may also be
avoided, though celebrated by religious rites in facie ecclesics.
Indeed, the marriage contract, as it is governed in many re-
spects by the ecclesiastical and statute law in England, is
often annulled for causes which, though analogous to duress
by the common law, do not range under that head.
By the civil law, the party who entered into a contract
while under duress was compeUed to institute a process of
(a) Shep. Touch. 61. Jacob's Law Diet. Duress.
(I) Heinec. Elem. s. o. Pand. lib. iv. tit. 2. (c) 1 Rol. Ab. 688.
\d) Shep. Touch. 62, 288.
(e) 1 Rol. Ab. 862. Bac. Ab. Duress, C.
(/) Bissett V. Bissett, 1 Harr. & M'Hen. 211. But see 18 Maryl. 319.
(jg) Worcester v. Eaton, 13 Mass. 371.
Qi) Keilwey, 52 b. Shep. Touch. 61. Finch, 10.
30 LAW OP CONTRACTS.
rescission within ten years, or he would have been held to
perform it. (a) By the common law, the party may avoid
such contract by pleading duress, or giving it in evidence,
when sued for breach of the contract.
On a retrospect of the common law doctrine of duress, it
will occur to every mind, that its operation is confined within
narrow and somewhat arbitrary limits, and is by no means
co-extensive with the principles of natural law, as expounded
by the most approved writers, (b)
Assent must be not only mutual and free, but must also be
without error respecting the subject of agreement. By the
civil law, " error annuls the agreement, not only when it
affects the identity of the subject, but also when it affects that
quality of the subject which the parties have principally in
contemplation, and which makes the substance of it." (c)
This, which is called error by the civilians, is in the common
law usually denominated mistake ; the word error having a
technical meaning of a very different kind, and being there-
fore seldom used in its popular sense by legal writers. In
both systems, the integrity of the contracting parties is as-
sumed ; for, if intenijional deception be practised by either
party, it is termed fraud, dolus malus. The rule of the civil
and common law is the same, so far as it regards the identity
of the subject of the agreement.
Where the subject of the agreement is the person, or where
a consideration of the person with whom an agreement is
made forms an ingredient of the agreement, a mistake respect-
ing the person destroys assent and annuls the agreement, {d)
(a) This process is somewhat analogous to an application to a court of
equity for relief.
{b) See Grotius, lib. ii. c. 11, 12. Grebner, Jus Nat. Pars ii. § 1, c. 7.
Puffendorf, lib. iii. c. 4-9. Heinec. Jus Nat. et Gent. lib. i. c. 14, 15. Hutche-
son's Mor. Philos. lib. ii. c. 9. Rutherforth, lib. i. c. 12, § 16.
(c) 1 Poth. on Obi. by Evans, (1st Amer. ed.) 11 ; (3d Amer. ed). 113.
Error consensu! obstat. Si enim in re erro, non in illam sane consentio, sed
in aliam, quae turn menti mea obversabatur. Heinec. Recit. 475. Elem. s. o.
Inst. lib. iii. tit. 24. Ea non libere velle possumus, circa quae errore ducimur.
Grebner, supra.
(d) 1 Poth. on Obi. by Evans, (1st Amer. ed.) 12, (3d Amer. ed.) 114.
MISTAKE. 31
As if a man, intending to make a gift or loan to one, gives or
lends to another, mistaking him for the first, the gift or loan is
void for want of assent. So of a sale on credit, or an agree-
ment to sell on credit to one person, mistaking him for another.
So also of a promise of marriage. Such cases, however, can
seldom occur ; and the rule is of little practical importance. In
almost all instances of misapprehension of the person, there
is fraud, which is a distinct ground of avoiding contracts.
Where a mistake occurs respecting the identity of the sub-
ject of the agreement, assent is not given, and the contract
of course is void ; as where a contract was for lime in casks,
and the casks were found to contain sand and stones, (a) So
where counterfeit coins or notes are taken and passed as gen-
uine, (b) If, however, certain coins or notes are specifically
agreed to be received, it is not regarded as a bargain for cash ;
and if they prove to be spurious, the loss falls on the holder.
The party receiving them is understood to take the risk, and
there is no mistake as to the identity of the subject, (c)
And in some cases, negligence in the party receiving worth-
less coin or notes will fix the loss on him ; {d} as if a party
do not seasonably return them, or if he pay a note forged
against himself, (e)
Pothier gives, as an instance of error in the identity of the
subject of the contract, which renders it void for want of
assent, the purchase of candlesticks as silver which are only
plated. But in the case of Chandelor v. Lopus, (/) the con-
trary was held by all the judges of England, except one, in
(a) Conner v. Henderson, 15 Mass. 319. Gardner v. Lane, 9 Allen, 492.
(6) Young V. Adams, 6 Mass. 182. Ellis v. Wild, ib. 321. Markle v. Hat-
field, 2 Johns. 455. Jones v. Ryde, 5 Taunt. 488. Eagle Bank v. Smith, 5
Conn. 71. Thomas v. Todd, 6 Hill, 340. Pindall's Ex'ors v. N. Western
Bank, 7 Leigh, 617. Gurney v. Womersley, 4 El. & Bl. 133.
(c) Alexander v. Owen, 1 T. R. 225. Ellis v. Wild, ubi sup. Merriam v.
Wolcott, 3 Allen, 258, where one point decided in 6 Mass. 321, was denied
to be law.
(cT) 17 Mass. 1, 33. 10 Wheaton, 333.
(e) Price v. Neal, 3 Bur. 1354. Levy v. Bank of United States, 4 Dallas,
234.
(/) Cro. Jac. 4.
32 LAW OF CONTEACTS.
the case of a stone bought and sold as a bezoar-stone, which
proved to be of some other species less valuable. Parker,
C. J., says, (a) that this case " would not now be received as
law in England, certainly not in our country." Probably,
however, he questioned the case on different grounds from
that which we are now considering; and the current of decis-
ions at common law, both here and in England, runs very
strongly against Pothier's doctrine, as applied in the instance
just mentioned. By those decisions, that instance ranges
under the head of mistakes that affect the quality of the sub-
ject of agreement, as to which the civil and common law are
totally different. Mr. Evans, in a note to his edition of
Pothier, (1st Amer. ed.) 13, mentions, as a case of error in the
subject of the contract, that a painting was sold as an original
of Poussin, but it appearing afterwards to be the work of
some other person, it was held that the sale was void, and the
purchaser entitled to reclaim his money. This, if (as it seems
to have been) a case in the English courts, is directly im-
pugned by the case of Jendwine v. Slade, [b) and is at vari-
ance with the principles of numerous adjudications, (c)
As to mistake or error, which affects the quality of the sub-
ject of agreement, whether the error be what the civilians term
essential, which annuls a contract, or accidental, which only
gives a right of action for damages, there is, as before sug-
gested, no similarity in the civil and common law. By the
principles of the common law, so far as they apply to con-
tracts of sale, a purchaser has no remedy against the seller
for any defect in the quality of the article sold, unless the
seller is guilty of fraud, or makes a warranty upon the sale.
There is, perhaps, room for doubt whether there is not an ex-
ception to this rule, in the case of a sale of provisions. But
this point, as well as the whole doctrine, belongs to the subject
of the sale of ^personal property, rather than to that of con-
tracts generally.
Assent must be given without fraud, on the part of hira
(a) 13 Mass. 143. (b) 2 Esp. R. 572.
(c) See Hill v. Gray, 1 Stark. R. 434. Tucker v. Woods, 12 Johns. 190.
FRAUD. $8
who procures it, as well as without mistake respecting the
subject of the agreement. Fraud avoids all contracts, ab initio,
both at law and in equity ; the assent essential to a contract
not being honestly obtained. The civil law definition of
fraud, dolus, is " omnis calliditas, fallacia, machinatio, ad
decipiendum, fallendum, circumveniendum alterum adhibita.''
No precise definition is found, in the books of common
law, of the term fraud ; but it is usually described in nearly
the same manner as by the civilians ; and is said to involve
some artful device, or deceitful practice, contrary to the plain
rules of common honesty, whereby a man is cheated and de-
prived of his right. It will be found, however, that on many
subjects of contract, the civil and common law regard the
same conduct in a very different light.
There are numerous fraudulent devices and practices, by
which one party to a contract deceives and injures the other.
In general, such fraud consists of misrepresentation or con-
cealment of material facts, suggestio falsi aut supjyressio veri.
As the question of fraud, or no fraud, depends on the particu-
lar facts of each case, the relative situation of the parties, and
their capacities and means of information, it is not easy to
lay down, with precision, any general, elementary doctrine,
which would not tend rather to mislead than to enlighten
and dii-ect. Besides ; as it is not the moral quality of an
act or omission which alone determines its legal quality
and effect, there are in the making of contracts certain acts
and omissions which writers on ethics pronounce immoral,
but which are held to be legally allowable, and not within the
cognizance of the law. Most intentional falsehoods are re-
garded as fraudulent and the subject of legal redress, when they
induce the party, to whom they are told, to do or omit to do
something which he would not otherwise have done or omitted,
whereby his interests are injuriously affected. But the rule of
the civil law, simplex commendatio non obligat, prevails in our
law. And if a seller merely use those expressions which are '-
usual with sellers who praise at random goods which they are
desirous to sell, the buyer ought not to rely on those expres-
sions ; and though he was thereby induced to buy, and was
3
34 LAW OF CONTRACTS.
deceived, he has no remedy. Such are assertions, by the
seller, of the value of the subject of sale, the price which he
paid for it, the offers which he has received for it, and the like.
This is termed " dealing talk," and is used, more or less, by
sellers generally, and seems to have been matter of distrust
and not of confidence, long before the existence of our com-
mon law. (a)
Multa fidem promissa levant, ubi plenius sequo
Laudat venales, qui vult extrudere merces.
So of untrue assertions of the buyer as to the highest price
which he is authorized to give, and of the value of the prop-
erty that he buys, (b) So if the buyer of personal property
has private information of some extrinsic fact or event which
materially affects its market value, he is not legally bound to
disclose such information to the seller. Thus where a party
knew of the peace of 1815, which greatly raised the price of
tobacco at New Orleans, and he bought a large quantity of it,
concealing his knowledge from the seller, who had not heard
the news of peace, the supreme court of the United States
decided that he was not legally bound to communicate his
knowledge to the seller ; that mere silence was not a legal
.fraud, (c) And it was said by Lord Thurlow, that if " A.,
knowing there to be a mine in the estate of B., of which he
knew B. was ignorant, should enter into a contract to purchase
(a) Sugd. on Vend. 3. Oliphant on Horses, 83. Addison on Con. (2d ed.)
129. Broom's Maxims, (3d ed.) 701. 6 Met. 259, 260. Harvey v. Young,
Yelv. 21. Onslow's Nisi Prius, 28. Eoberts on Fraudulent Conveyances, 524.
Moore v. Turbeville, 2 Bibb, 602. Saunders v. Hatterman, 2 Ired, 32. Davis
V. Sims, Hill & Denio, 234. Page v. Parker, 43 N. Hamp. 368. Veasey v.
Doton, 3 Allen, 380, and cases there cited. Hemmer v. Cooper, 8 Allen, 334.
Geddes v. Pennington, 5 Dow, 1 64. Phipps v. Buckman, 30 Penn. State Rep.
401.
(b) Vernon v. Keys, 12 East, 632. Humphrey v. Haskell, 7 Allen, 497.
1 Story on Eq. § 199. Barlow v. Wiley, 3 A. K. Marsh. 457.
(c) Laidlaw v. Organ, 2 Wheat. 178. See Mr. Verplanck's examination
of this case, in his Essay on the Doctrine of Contracts and how they are
affected by Concealment, &c. See also Frazer v. Gervais, Walker, 72, in
which the supreme court of Mississippi denied the doctrine in 2 Wheat. ; but
Gibson, C. J., recognized it in Kintzing v. McElrath, 5 Barr, 467.
FRAUD. 35
the estate of B. for the price of the estate, without considering
the mine," the court would not set the contract aside, (a)
" But," says Lord Eldon, " a very little is sufficient to affect
the application of that principle. K a word, if a single word,
be dropped which tends to mislead the vendor, that principle
will not be allowed to operate." (b) In cases of the seller's
concealment of intrinsic defects in personal property which
are known to him but not discoverable by the buyer, with the
use of proper diligence, the contract of sale is held to be
fraudulent and avoidable, (c) " In contracts for the letting
and hiring of realty, the lessor is not bound to disclose to the
lessee latent defects interfering with the use and enjoyment
of the property let to hire." (d)
Those kinds of fraud, which avoid contracts, not on the
ground of defective assent, or assent fraudulently obtained
from one party by the other, but because the contracts them-
selves injuriously affect third persons or the public, have no
bearing on this part of the law of contracts.
There is the same difference between the common and civil
law, as to the mode of avoiding contracts made under a
fraudulent imposition, which was mentioned under the head
of duress, viz. : showing the fraud on a trial by the common
law, and a process of rescission by the civil.
(a) Fox V. Mackreth, 2 Bro. C. C. 420 and 2 Cox, 320. See also 1 Story
on Eq. §§ 204-208. 2 Kent Com. (10th ed.) 672. Harris v. Tyson, 24 Penn,
State Rep. 347.
(b) Turner o. Harvey, Jacob, 178. See also Prescott v. Wright, 4 Gray,
464.
(c) Story on Sales (Perkins's ed.) § 179, and authorities there cited. Ham-
mond's Nisi Prius, 294. Addison on Con. (2d ed.) 133. Horsfall v. Thomas,
1 Hurlst. & Coltm. 100. 1 Story on Eq. (8th ed.) § 212 a. 1 Bell Com. 175.
Paddock v. Strobridge, 29 Verm. 470. Shaw on Obligations, 51.
((/) Addison on Con. (2d ed.) 134. See Foster v. Peyser, 9 Cash. 242. 1
Washburn on Real Property, (1st ed.) 349.
CHAPTER II.
OF PAETIES TO CONTRACTS.
Mutual assent presupposes parties capable of assenting.
Capacity to contract is of two kinds, natural and legal, and
these must, in general, concur in both parties. By natural
capacity is meant a competent measure of mental power.
Legal capacity includes natural, and also the permission of
the law to exercise it.
The subject of the parties to contracts will be considered
under the several divisions of, 1, infants ; 2, non compotes men-
tis ; 3, drunkards ; 4, married women ; 5, outlaws and persons
attainted ; 6, persons excommunicated ; 7, aliens ; 8, spend-
thrifts ; 9, slaves ; 10, seamen ; 11, attorneys and other agents;
12, partners ; 13, executors and administrators ; 14, guardi-
ans ; and, 15, corporations.
1. Infants.
Infants are incapable of making contracts ; and their in-
capacity is partly natural and partly legal. In deciding on
their agreements, the actual state of their capacities is not
considered.
By the common law, every person is, technically, an infant,
until he is twenty-one years old ; and, in legal presumption, is
not of sufficient discretion to contract an obligation at an
earlier age. (a)
As some acquire maturity of judgment much sooner than
others, it is obviously impossible to determine by any univer-
sal rule, how long young persons remain incapable of making
a binding contract; and it is, therefore, as PufFendorf remarks,
a plain direction of natural law, that this subject should be
(a) Co. Lit. 171b.
INFANTS. 37
regulated by the positive institutions of society. Accordingly,
it is found that almost all states have fixed a period at which
legal capacity commences, and this, earlier or later, according
to the character of the people and the nature of the business
to be transacted.
By the early Roman law, full age, in matters of contract,
was twenty -five years ; but by the later law it was twenty-one
years, (a) The ancient Germans fixed the period of mature
age principally with reference to the state of the body, espe-
cially its fitness for military service. In process of time a
certain number of years was, by divers special laws, made the
standard of maturity for various purposes, until at length the
age of twenty-one became, generally, " matura Germanorum
aBtas."(&)
Some writers suppose the period of twenty-one years was
adopted by the common law fi*om the old Saxon constitutions
on the continent, which held youth under tutelage till that
age, and then allowed them to be " sui juris." Others resort
for its origin to the tenure by knight-service, and the incident
of that tenure, called guardianship in chivalry. Under this
system, the tenant, when twenty-one years old, was regarded
as capable of attending his lord in war, and was therefore no
longer in ward. There is in the books much learned discus-
sion of the origin of the incidents of the tenure by knight-
service, as recognized in the ancient English law. While
some writers derive them from the great feudal system of the
continent, others ascribe them to the encroachments of the
Norman conqueror and his successors, (c) Mr. Hallam, in his
View of the Middle Ages, accuses the English lawyers of an
imperfect acquaintance with the history of feuds on the con-
(a) Hutcheson's Moral Philosophy, lib. ii. c. 9, § 4. In Levi's Manual of
Mercantile Law, 44, it is stated that " majority is fixed at twenty-one in the
United Kingdom, France, the two Indies, Sardinia, Bavaria, Saxony, Russia,
and the United States ; at twenty-three in Holland ; at twenty-four in Aus-
tria and Prussia ; at twenty-five in Denmark, Spain, Portugal, and in the
Cape of Good Hope."
(b) Putteri EI. Juris Germ. Priv. Hod. § 198 & nota.
(c) See Mr. Butler's note to Co. Lit. 191. 2 Bl. Com. c. 5. Sullivan's
Lectures, xi. & xii.
38 LAW OF CONTRACTS.
tinent, and denies that wardship, &c., formed any part of the
continental system, or sprang from the relation between lord
and vassal, as it existed under that system. However this
may be, it is very evident that the period of full age, in our
law, like many other important parts of our legal system, is
of German origin.
As the common law generally makes no fractions of a day,
a person is of full age on the day preceding his twenty-first
birthday, (a) Thus, " it has been adjudged, that if one be
born the first of February, at eleven at night, and the last of
January, in the twenty-first year of his age, at one of the
clock in the morning, he makes his will of land and dies, 't is
a good will, for he was then of age." (b) This decision was
for the benefit of the testator, enabling him to do an act
that required full age, before all the hours of twenty-one years
had elapsed. But the same rule would doubtless be applied
against a defendant, who should attempt to avoid, on the
ground of infancy, a contract made by him on the day before
the twenty-first anniversary of his birth.
Infancy Is a personal privilege, allowed for protection
against imposition ; and, in general, no person but the infant
himself, or his heirs or legal representatives, can take advan-
tage of it. (c) Therefore, a person of full age, who makes a
contract with an infant, is held to his engagement, if other-
wise valid, and if the infant ejects to adhere to it, though the
latter may, on his part, avoid it. (d) Thus, an infant main-
tained an action against an adult for breach of a promise of
marriage, although it was contended that, as the plaintiff was
(a) 1 Wooddeson, 398.
(h) 1 Keble, 589, pi. 52. 1 Sid. 162. 1 Salk. 44. 2 ib. 625. 1 Ld.
Raym. 480. 2 ib. 1096. 2 Mod. 281. 6 Mod. 260. 3 Wilsou, 274. 6
Ind. 447. See 1 Redfield on Wills, (1st cd.) 20, 21.
(c) 2 Inst. 483. 1 Shower, 171. Rose v. Daniel, 2 Const. Rep. (S. C.) 549.
Beeler v. Bullitt, 3 A. K. Marsh. 281. United States c. Bainbridge, 1 Ma-
son, 71. Hartness v. Thompson, 5 Johns. 160.
(c?) 1 Coniyn on Cont. (1st ed.) 153, and cases there cited. Bac. Ab. In-
fancy and Age, I. 4. 1 Sid. 41,446. But, as the remedy is not mutual, a court
of chancery will not decree specific peribrmauce at the suit of an infant.
Flight V. Bolhuid, 1 Russell, 298.
INFANTS. 89
not bound, there was no reciprocity, (a) So, a third person,
not a party to the contract, cannot take advantage of the
infancy of one of the parties. Thus, in an action for seduc-
ing a servant from his master's service, the defendant cannot
resist the action, by showing that the servant was an infant,
and therefore not by law bound to perform the contract made
with the master for service, (b) On the same principle (con-
nected with others), the acceptor of a bill of exchange, or the
maker of a promissory note, cannot resist payment in a suit
by an indorsee, though the indorser be an infant, (c)
These and similar decisions proceed on the principle, now
well established, that the contracts of infants are generally
voidable and not void ; by which is meant, that it is at their
election, and theirs only, whether they will perform their con-
tracts ; and that, on their arriving at full age, they may ratify
and render them obligatory, without any new consideration to
support them. Any contract, therefore, which is void, and not
merely voidable at the infant's election, is not binding on the
adult contractor, and may be treated as a nullity by third
persons. Nor will the courts, by virtue of their equitable juris-
diction, confirm such a contract, nor prohibit the infant to
avoid it. (d)
There is confusion in the older books, on the question,
what acts of infants shall be regarded as void, and what only
voidable, (e) There is one result, however, in which most of
the older cases agree ; that whenever the act done mai/ be for
the infant's benefit, it shall not be considered as void, but he
shall have his election, when he comes of age, to affirm or
avoid it. This is perhaps the only clear and intelligible prop-
osition which can be extracted from the earlier authorities ;
(a) Holt V. Ward, 2 Strange, 937 and Fitzg. 175, 275. 1 Salk. 24. See
also Warwick v. Bruce, 2 M. & S. 205 and 6 Taunton, 118. 5 Cowen, 475.
(b) Keane v. Boycott, 2 H. Bl. 511. Ashcroft v. Bertles, 6 T. R. 652.
(c) Taylor v. Croker, 4 Esp. R. 187. Grey v. Cooper, 3 Doug. 65.
Jones V. Darch, 4 Price, 300. Nightingale v. Withington, 15 Mass. 273.
Hardy v. Waters, 38 Maine, 450. Frazier v. Massey, 14 lud. 382.
(rf) Saunderson v. Marr, 1 H. Bl. 75.
(e) See Perkins, § 12 et seq. Shep. Touch. 232. Bac. Ab. Infancy and
Age, I. 3 ; and cases cited in Zouch v. Parsons, 3 Bur. 1794.
40 LAW OF CONTRACTS.
and, in some cases that may arise, even this is not of easy
application, (a) And this rule has been questioned and pro-
nounced unsatisfactory by some of the courts of this country.
See 1 Amer. Lead. Cas. (4th ed.) 242, 243, 247, 248, 249. It
will be seen in the following pages that the strong tendency
of the English as well as the American courts is to regard all
contracts of infants as voidable only. Bing. on Infancy (Ben-
nett's ed.) 11, note. In the Amer. Lead. Cas. supra, the
editors express the opinion that an infant's appointment of an
attorney may well be deemed void. See Cumraings v. Powell,
8 Texas, 87.
It is held that an infant may purchase land ; for, says
Lord Coke, " it is intended for his benefit, and at his full age
he may either agree thereunto and perfect it, or, without any
cause to be alleged, wave or disagree to the purchase." (6)
For the same reason (among others) his feoffment, or other
conveyance of land, is not void, but voidable only, (c) An
infant's bond with a penalty, and for the payment of inter-
est, is held by the English courts to be void on the ground
that it cannot be for his benefit, {d) But in Bradley v. Pratt,
23 Verm. 378, it was decided that there is no general rule
in this country exempting him from paying interest, as neces-
sarily injurious to him. Yet a bond executed by him as
surety has been considered void, {e) as not being possibly for
his benefit. A release by him to his guardian, as it affords
more protection than a receipt, is held to be void. (/) Parker,
C. J., supposes that all simple contracts made by an infant are
(a) See 3 Bur. 1808. 13 Mass. 239. 14 Mass. 462. 1 Story on Eq. §§ 240,
241. 2 Kent Com. (6th ed.) 234, (11th ed.) 256.
(6) Co. Lit. 2 b. 11 Johns. 543.
(c) Perkins, § 13. 3 Bur. 1805, 1808. 14 Johns. 126. Doctor and Student,
(16thed.)62. 5Yerg.41. 2 Overton, 431. 1 N. Hanip. 73. As to an infant's
conveyance by lease and release, see Zouch v. Parsons, 3 Bur. 1 794 ; though
this decision has been much quarrelled with, it was fully approved by Chancellor
Sugden, in Allen v. Allen, 2 Dru. & War. 340 and 1 Con. & Law. 452.
{(l) Fisher v. Mowbray, 8 East, 330. Hunter v. Agncw, 1 Fox & Smith, 15.
Baylis v. Dineley, 3 M. & S. 477.
(e) See 2 Call, (1st ed.) 70. 3 Desaus. 482. 6 Mich. 220.
(/) Fridge v. The State, 3 Gill & Johns. 115.
INFANTS. 41
voidable only, (a) But it has been decided, that his parol
promise (promissory note), as surety, is void, (b) Eyre, C. J.,
says, such contracts as the court can pronounce to be to
the infant's prejudice are merely void ; those that are of an
uncertain nature, as to the benefit or prejudice, are voidable
only, (c) This doctrine is recognized by the supreme court
of Tennessee and by Story, J., (d) by Hosmer, C. J., (e) by
Chancellor Kent, (/) by Lord Ellenborough ; (g-) and was the
gi-ound of the decisions just cited, respecting an infant's bond
for payment of interest, his release, and his contracts as
surety. (A)
An exception to the rule, that an infant's deed is voidable
only where the court cannot pronounce it to be to his prej-
udice, is made in the case of a power of attorney executed
by him. Such an instrument is treated as utterly void.
Hence any contract, made in his name and for his benefit,
under an authority thus attempted to be delegated, is of no
validity and may be regarded as void, not only by the other
contracting party, but also by third persons ; and cannot be
made valid by a subsequent ratification, (i) Indeed, no void
contract can be ratified ; there is, in legal estimation, no sub-
ject of ratification, (j)
A power of attorney, to authorize another to receive seizin
of land for an infant, in order to complete his title to an estate
conveyed to him by feoff"meiit, is voidable only ; it being an
(a) 14 Mass. 462.
(b) Rogers v. Hurd, 4 Day, 5 7. Maples v. Wightman, 4 Conn. 376. Cur-
tin V. Patton, 11 Serg. & R. 305.
(c) 2 H. Bl. 515.
(d) 6 Yerg. 9. 5 ib. 41. 1 Mason, 82.
(e) 6 Conn. 503.
(J) 2 Kent Com. 193, 1st ed.
(g) 3 M. & S. 481.
(h) Finch, (103) says, "grants of his, where himself hath benefit, are only
voidable." See Pennington, (2d ed.) 764.
(0 2 Lil. Ab. 69. 4 Littell, 18. Bac. Ab. Infancy and Age, 1. 3. Saim-
derson v. Marr, 1 H. Bl. 75. Finch, 102. 1 Amer. Lead. Cas. (4th ed.) 248,
249.
(/) Dalison, 64, pi. 25. Cro. Eliz. 126. Co. Lit. 295 b. 2 T. R. 766.
4 Conn. 376.
42 LAW OF CONTRACTS.
authority to do an act for his benefit, (a) And the good sense
of the thing seems to be, that an authority delegated by an
infant for a purpose which may be beneficial to him, or which
the court cannot pronounce to be to his prejudice, should be
considered as rendering the contract made, or act done, by
virtue of it, as voidable only, in the same manner as his per-
sonal acts and contracts are considered.
And it is held, that this anomaly is confined to cases of
authority delegated under a sealed instrument. The old de-
cisions are all of that kind ; and, being somewhat inconsist-
ent with the general principles affecting infant's contracts, the
doctrine is not extended to implied or oral authority. There-
fore, where an adult and "an infant were partners in trade, and
the adult signed a promissory note in the name of the firm,
for a partnership debt, it was held to be voidable only by
the infant, and that he was bound by his ratification of it
after he came of age. {b)
In any new case that may arise, if it should be necessary
to an infant's protection that his deed or other contract should
be considered void, the reason of the privilege would doubt-
less warrant an exception, in such case, to the general rule, (c)
It is said by Lord Mansfield (d) that the privilege of avoid-
ing their contracts is given to infants as a shield and not as a
sword. Yet cases are not unfrequent, where equitable and
honorable claims are resisted and avoided, on the mere legal
right of the infant. Perhaps, however, this privilege is not
oftener abused to purposes of injustice, than most other rules
of law, which, from necessity, must be general, and cannot be
made to bend to the- circumstances of particular cases.
In contracts, where the infant engages to do some future
act, as to pay money, perform covenants, or fulfil any other
promises, (i. e. in cases of executory contracts,) he may, in
general, not only refuse to perform them during his infancy,
but may disaffirm them after he comes of age, and leave the
(a) Bro. Ab. Faites, 31. 1 Rol. Ab. 730. 3 Bur. 1808. 1 Wooddesou, 400.
(b) Whitney v. Dutch, 14 Mass. 457.
(c) 3 Bur. 1807, 1808. Keeve Dom. Rel. 250, 252.
(d) 3 Bur. 1802.
INFANTS. 43
other party without remedy. Thus, he may refuse to pay his
bond or note, to perform any covenant he has made, or to
fulfil any oral promise, though he has received a full consider-
ation for such bond, covenant, or promise. If he has bor-
rowed money, or purchased goods, and spent the one and
used or sold the other, he cannot be compelled to pay ; and,
if sued, whether during minority or after he is of full age, he
may successfully resist, on the ground of his infancy at the
time of the borrowing or the purchase ; and his executor or
administrator is entitled to the same defence.
When an infant has disposed of his own property, (?*. e. in
cases of executed contracts) he may, in general, disaffirm the
contract, either during infancy or after he comes of age. [a)
Thus, if he lease his lands, reserving rent, he may allow the
lessee to be his tenant, and may receive the rent ; or he may
rescind the contract, and treat the lessee as a trespasser, {b) In
Co. Lit. 248 a. it is said, " if an infant make a feoffinent, &c.,
he may enter, either within age, or at any time after his full
age." And in 2 Inst. 673, it is said, "if an infant bargain
and sell lands which are in the realty, by deed indented and
enrolled, he may avoid it when he will." But the law of Eng-
land seems now to be, that though an infant grantor of lands
may enter upon them during minority, and vest them in him-
self, « for the sake of the profits," yet that he cannot maintain
an action to recover them, and thus avoid his grant, until he
has attained full age. 3 Bur. 1808, by Lord Mansfield. 1
Roscoe on Real Actions, 93. Jackson on Real Actions, 263.
The law of this country is similar. 9 Cowen, 628. 5 Min.
61. 16 N. Hamp. 390. 17 Conn. 483. 8 Texas, 92. Wil-
lard on Real Estate, 446. 1 Washburn on Real Property,
305, 306. 1 Amer. Lead. Cas. (4th ed.) 257.
There are certain contracts of record, as fines, recoveries,
recognizances, statutes, &c., which must, by the common law
of England, be avoided during minority, or they will be bind-
ing forever, (c) This exception rests upon a reason that never
(a) Bac. Ab. Infancy and Age, I. 5.
(6) Blunden v. Baugh, Cro. Car. 302, 306.
(f) 2 Inst. 483. Co. Lit. 380 b. Bac. Ab. Infancy and Age, I. 5. New-
land on Con. 13. "
44 LAW OF CONTRACTS.
operated in New England, probably in none of the United
States, and is not a part of our law, viz. : trying infancy by
inspection, (a)
In order to avoid a feoffment made by an infant, it is re-
quired that he should enter upon the land to regain seizin.
Conveyance by feoffment is not practised here, and is in a
great measure, if not wholly, superseded in England by other
modes of tranferring real property.
Where the conveyance of an infant's land is by deed of bar-
gain and sale, the common mode of assurance in New Eng-
land and most of the other states, there are cases in which it
has been held that it is not necessary that an entry should be
made in 'order to avoid it.
In Jackson v. Carpenter, 11 Johns. 539, and Jackson v. Bur-
chin, 14 Johns. 124, where an infant had sold and conveyed
wild lands by deed of bargain and sale, and, several years
after he came of age, conveyed, by a similar deed, the same
lands to another person, it was held, that the first conveyance
was legally avoided, and the last purchaser entitled to the
property. And so it was held in Tucker v. Moreland, 10
Peters, 58, in the case of a deed of real estate in the city of
Washington. In that case it is to be observed that the infant
had continued in possession, after making his first deed, until
he made the second.
Since these three cases were published, several of the state
courts have recognized the proposition as general, if not uni-
versal, that an infant's deed of his real estate may be disaf-
firmed by his second deed, though to another grantee, after
coming of age, without a previous entry. See 2 Dev. & Bat.
326. 7 Humph. 126. 15 Ohio, 192. 7 Ind. 401. 24 Mis-
souri, 544. But in Bool v. Mix, 17 Wend. 133, Bronson, J.,
said that in 11th and 14th Johnson, (supra) stress was laid on
the fact that the land was vacant and uncultivated, and that
an entry would have been useless ; that if in those cases the
land had been held adversely to the infant, the second deed
would, in his opinion, have been void, and that this was ad-
mitted in Jackson v. Burchin. And in Dominick v. Michael,
(a) See 3 Bl. Com. 331, 332.
INFANTS. 45
4 Sandf. 421, Duer, J., referred to Bool v. Mix as satisfactorily-
showing that to enable an infant to pass title by a second
conveyance, his previous actual entry on the land is an indis-
pensable requisite ; and that this rule is applicable in all cases,
except where the infant has retained possession of the lands,
or, at the time of the execution of the second deed, they are
wholly vacant.
It is not known that any court in New England has ad-
judged this point. But in 1 N. Hamp. 75, Woodbury, J., said
that an infant, in order to avoid his deed, was generally bound
to reenter, but that if he be already in possession, or if the land
be all wild, a mere sale of it might sufficiently disaffirm his
first conveyance. And Parker, C. J., in 13 Mass. 375, said
that an infant grantor could disaffirm his deed of land and
convey title " only by entry." Since this was said, the stat-
utes of Massachusetts and of j\Iaine have enabled parties to
recover land by a WTit of entry, without first making an entry
thereon ; proof of title and of a right of entry being made
sufficient to maintain such writ. And in Chadbourne v.
RacklifFe, 30 Maine, 354, the bringing of that writ, after com-
ing of age, was held equivalent to an entry, and to be a dis-
affirmance of a deed made during minority.
No reason is perceived, and none is known to have been
anywhere suggested, judicially or otherwise, for a difference in
the mode of disaffirming a deed voidable for infancy and a
deed voidable for insanity or for duress. In the two latter it is
adjudged, and nowhere denied in New England, that a valid
deed to a second grantee cannot be made until after entry on
the land, or after action brought to recover it. In all cases,
a first deed, duly executed and recorded, conveys a seizin to
the grantee, and his possession under the deed is adverse to the
grantor. That the grantor may not be thereby technically
disseized is immaterial. He has parted with his own seizin,
and his grantee's seizin and possession have the same legal
effect as a technical disseizin would. Until the grantor some-
how regains a seizin, he is disabled by the grantee's adverse
possession to pass a title. See 4 Mass. 68. 5 Mass. 352.
7 Mass. 384. 13 Met. 4. 9 Allen, 88, 166. 6 Met. 339, 444.
46 LAW OF CONTRACTS.
4 Gray, 200. 19 Verm. 161. Where such is the law, it is
not supposable that a court would sanction a disaffirmance
of an infant's deed by his second deed to another grantee,
without a previous entry, further than it was sanctioned by
the judges whose opinions in Bool v. Mix and Dominick v.
Michael are above stated. 1 Washburn on Real Property,
304. And why should not the grantor of wild and unculti-
vated land be required to make entry thereon, or bring a writ
of entry, before conveying it a second time, wherever the
ownership of such land is held (unless possession adverse to
the owner is clearly shown) to be equivalent to a seizin and
possession thereof? See 15 Pick. 189. 24 Pick. 78, 79. 8
Johns. 270. Stearns on Real Actions, 33. 4 Kent Com. (11th
ed.) 28, (6th ed.) 30, 31. 1 Washburn on Real Property, 136.
As no deed is necessary to the transfer of personal property,
an infant's contract respecting the disposition of such prop-
erty may be disaffirmed by his verbal declarations to the other
party, and by retaking or demanding the restoration of it.
And this he may do, although the contract was made with
the express approbation of his guardian, (a)
An absolute gift made by an infant may be revoked by him
or by his administrator. Person v. Chase, 37 Verm. 647.
The effect of the disaffirmance of an infant's contract, upon
the rights and interest of the other party, is different in the
cases of executory and of executed agreements.
Where the agreement is executory on the part of the adult,
a disaffirmance by the infant discharges the adult from his
obligation to performance. As if an infant leases land, re-
serving rent payable i?i futuro, and afterwards avoids the
lease, the lessee is not bound by his agreement or covenant to
pay the rent, at least, for no longer time than he occupies un-
der the lease. So, if an infant sells a horse or any other chat-
tel on credit, taking the purchaser's oral promise or note,
and rescinds the contract and reclaims the property, the pur-
chaser may refuse to pay for it ; and, if sued, may defend
with success against the infant's claim, (b)
(a) 10 Johns. 132.
(b) Reeve Dom. Rel. 243, 244.
INFANTS. 47
But if the contract is executed by the adult, he cannot com-
pel the infant to restore what he has paid him. Thus, in the
cases above supposed, if the rent had been paid in advance,
or the horse or other property been paid for before delivery,
the law would give no redress, though the infant disaffirmed
the lease, or refused to deliver the property sold by him ; that
is, no redress in an action on a contract. And it is not clear
that in such cases there is any legal remedy, (a)
Where, however, the infant receives payment on the sale
and delivery of his goods, it has been made a question,
whether he can rescind the contract and reclaim possession,
without refunding the price. That he may, on the mere
ground of his minority, disaffirm the sale, does not admit of
question; and, for causes which it is unnecessary to state
here, contracts between persons of full age may sometimes be
rescinded ; but, in such cases, the party rescinding must place
the other party in statu quo. In Badger v. Phinney, 15
Mass. 363, it was said by Mr. Justice Putnam, that this prin-
ciple would be applied to an infant who had received pay-
ment and should afterwards seek to reclaim his property.
And such seems now to be the American doctrine, (b) and
to be deducible from the English decision in Holmes v. Blogg,
hereafter to be considered.
But where the infant refuses to pay for articles sold to him,
the other party cannot retake the articles. Where he has re-
ceived money for property which he engaged to deliver to the
purchaser, and afterwards refuses to deliver, his privilege
(as it is termed) is his defence. This is manifestly inequi-
table, and Judge Reeve (c) therefore denies that such is the
law. But the principles of the law of infancy seem to lead
to this result, and so do the authorities, (d)
(a) In Shaw v. Boyd, 5 Serg. & R. 309, an infant received $500 for giving
a bond to release dower, and yet recovered dower without refunding the
money. Gibson, C J., there said " a court of common law can impose no con-
ditions on a party pursuing a legal right."
(b) 2 Kent Com. (11th ed.) 264. Chit, on Con. (10th Amer. ed.) 164,
note. 17 Texas, 341. 1 Amer. Lead. Cas. (4th ed.) 259, 260.
(c) Dom. Rel. 244.
(f/) See Cresinger v. Lessee of Welch, 15 Ohio, 156. Pitcher v. Laycock,
48 LAW OP CONTRACTS.
Nor is there anything less equitable in this result of legal
principles, than in that already mentioned, which Judge Reeve
does not controvert, viz. : that an infant may safely refuse to
pay for articles bought, or to repay money borrowed by him.
In the one case, the party loses his goods or money lent ; in
the other, he loses money paid by him without an equivalent.
In 2 Eden, 72, and Wilmot, 226, note, Lord Mansfield is
reported to have said that " if an infant pays money with
his own hands, without a valuable consideration, he cannot
get it back." And this 6?^dMmwas formerly supposed to have
been sanctioned by the decision of Lord Kenyon, at nisi prius,
in Wilson v. Kearse, Peake Add. Cas. 196, and by the court
of common pleas, in Holmes v. Blogg, 8 Taunt. 508 and 2
Moore, 552. But in Corpe v. Overton, 10 Bing. 252 and 3
Moore & Scott, 738, where an infant made an agreement with
an adult to enter into partnership with him on a future day,
and deposited money with him, as security for the performance
of that agreement, which he disaffirmed on coming of age, it
was decided that he might recover back the money so de-
posited. The ground of the decision was, that he had derived
no advantage from his agreement, and received no considera-
tion for it. Whereas in Holmes v. Blogg, an infant and his
partner took a lease of premises in which they can-ied on
business, and the infant paid £157 as his part of the sum ad-
vanced for the lease. The partners entered upon the premises
and held possession jointly for three months, when the infant
attained full age, dissolved the partnership, relinquished the
business, and brought an action against the lessor to recover
the money which he had paid. The ground on which it was
decided that he could not recover was, that he had received
some value for the money which he had paid, and that he
7 Ind. 398. Gibson v. Soper, 6 Gray, 279. In Doe v. Abernathy, 7 Blackf.
442, ejectment was maintained after coming of age without any suggestion of
a return of the money received for the first deed.
By statute in Iowa, " a minor is bound not only by contracts for necessaries,
but also by his other contracts, unless he disaflirms them within a reasonable
time after he attains his majorty, and restores to the other party all money or
property received by him by virtue of the contract, and remaining within his
control at any time after his attaining his majority." 12 Iowa, 198.
INFANTS. 49
could not put the lessor in statu quo. See also Stone v. Den-
nison, 13 Pick. 1. Breed v. Judd, 1 Gray, 455, Wilhelm v.
Hardman, 13 Maryl. 140. Aldrich v. Abrahams, Hill & Denio,
423.
The case of Wilson v. Kearse, in which Lord Kenyon held
that when an infant had contracted to purchase the good will
and stock of a public house and had made a deposit, he could
not, on refusing to complete the contract, recover back the
sum deposited, must be considered as overruled by Corpe v.
Overton, unless (which does not appear) there was, in the for-
mer case, some enjoyment under the contract. 2 Macpherson
on Infants, 478, 479. But see Ex parte Taylor, 8 De Gex,
Mac. & Gord. 254.
Though an adult, when he engages to perform service for
another for a year or other definite time, for a gross sum for
the whole time, and leaves the service without the other's
consent, or any justifiable cause, can recover nothing for the
service which he performed, (as seen ante, page 8), yet an
infant, in such case may recover pay for the service rendered
by him. (a)
An infant is entitled to reclaim money paid on a consider-
ation that has failed, and may have a remedy against those
who defraud him. As to these rights, he stands upon the
same ground as an adult. In addition to his power to dis-
affirm his contracts without cause, he has all the legal rights
of a person of full age to rescind them for cause. His privi-
lege is merely cumulative, and neither diminishes nor varies
any rights to which he would be entitled without it. {h)
It is true that minors are liable, generally, for their torts,
as for slander, trespass, &c. (c) But in the case before men-
tioned, of a minors refusing to pay for goods which he has
(a) Moses v. Stevens, 2 Pick. 332. "Vent v. Osgood, 19 Pick. 572. Jud-
kins V. Walker, 17 Maine, 38. Lufkin v. Mayall, 5 Foster, 82. Thomas v.
Dike, 11 Verm. 273. Medbury v. Watrous, 7 Hill, 110. Whitmarsh v.
Hall, 3 Denio, 375. Voorhees v. Wait, 3 Green (N. J.) 343. Dallas v. Hol-
lingsworth, 3 Ind. 537. Wheatly v. Miscal, 5 Ind. 142.
(6) See 6 Taunt. 120.
(c) Noy, 129. 8 T. R. 337. 3 Pick. 492. 6 Cranch, 226. 3 Wend. 391.
17 Wis. 230.
4
60 LAW OF CONTRACTS.
bought, there is no principle of law by which he can be made
liable, in an action ex delicto^ or by which the vendor can re-
scind the sale and retake the goods. He would be liable only
on his contract, and from this liability the minor is protected
by his privilege. It would be a violation of principle, to re-
gard and treat as fraudulent and tortious, in an infant, those
acts which are not so in an adult, merely because the infant is
not liable, like the adult, in an action ex contractu.
In the case, also before mentioned, of a minor's refusing to
deliver goods which he has sold, and for which he has received
payment, it is probably true, that if he were an adult, he might
be sued in an action of trover for tlie unlawful detention (tech-
nically, conversion), and made to pay the full value to the pur-
chaser. But an adult cannot avoid his fair contract, like an
infant ; and therefore the goods, upon his paying for them,
become his (as between him and the seller), and the subse-
quent detention, against his will, is a conversion of hu prop-
erty. When, however, an infant avoids his contract in such
case, the property in the goods reverts to him, and, by refusing
to deliver them, he cannot be said to convert the goods of the
purchaser.
Though this reasoning is technical, yet it is legal, and we
must defer to its results.
But if, in this case, an adult would likewise be liable in an
action on the case, for tortiously refusing to deliver the goods,
yet, says Chief Justice Gibbs, (2 Marsh. 486) the cases clearly
show that where the substantial ground of action rests on
promises, the plaintiff cannot, by declaring in tort, render an
infant liable, who would not have been liable on his promise.
The first case on this point is Grove v. Nevill, (a) where it
was decided, that infancy is a good defence against an action
of deceit, for affirming, on the sale of goods, that they were
the vendor's property, when they were, in fact, the property of
another person.
(a) 1 Keble, 778. Mr. Justice Windham doubted. In 1 Keble, 914, it is
stated that, in addition to the false affirmation as to ownership, the infant de-
ceived the purchaser, by asserting that the article was of a different kind from
what it proved to be.
INFANTS. 61
The next case is that of Johnson v. Pie, (a) where an in-
fant Avas sued, in an action ex delicto, for deceit in afRrming
himself to be of age, and thereby obtaining money, on giving
a mortgage as security for payment thereof, which he after-
wards avoided for infancy ; and judgment was arrested after
verdict for the plaintiff.
On the authority of these cases, it was held, in Jennings v.
Rundall, 8 T. R. 335, that infancy was a bar to an action ex
delicto, in which the plaintiff declared, that he Jet a horse to
the defendant to be moderately ridden, but that he injured the
horse by immoderate riding and want of care.
In Green v. Greenbank, (b) it was decided, that an infant
is not liable for a false warranty on an exchange of horses.
Chief Justice Gibbs there said : " This is a case in which
the assumpsit is clearly the foundation of the action ; for it
is in fact undertaking that the horse was sound." (c)
In Conroe v. Birdsall, 1 Johns. Cas. 127, Brown v. Mc-
Cune, 5 Sandf. 224, Burley v. Russell, 10 N. Hamp. ISl,
and Merriam v. Cunningham, 11 Cush. 40, it was held that a
defendant is not answerable ex contractu on an agreement
made by him when an infant, though he then fraudulently
alleged that he was of full age. See opinion of Tilghman,
C. J., in Stoolfoos v. Jenkins, 12 Serg. & R. 403. But in Fitts
V. Hall, 9 N. Hamp. 441, it was decided (contrary to Johnson
V. Pie, supra,) that a defendant is answerable, in such case in
an action ex delicto. Parker, C. J., said : " The representation
that the defendant was of full age was not a part of the con-
tract, nor did it grow out of the contract or in any way result
from it. No contract was made about the defendant's age.*'
A like decision of the court of common pleas for the city and
county of New York was made in 1863. Eckstein v. Frank,
1 Daly, 334. (d) In 1 Amer. Lead. Cas. (4th ed.) 262, this
(a) 1 Sid. 258, 1 Lev. 169, and 1 Keble, 905, 913.
(6) 2 Marsh. 485.
(c) West V. Moore, 14 Verm. 449, Morrill v. Aden, 19 Verm. 505, and
Prescott V. Norris, 32 N. Hamp. 101, ace. Word v. Vance, 1 Nott & McCord,
197, contra.
{d) In this case the court said that the doctrine oftJohnson v. Pie had been
distinctly repudiated by the supreme court of New York, in Wallace v. Morss,
62 LAW OF CONTRACTS.
doctrine is pronounced to be " clearly unsound." And in the
recent work of Addison on Torts, the decision in Johnson v.
Pie is repeatedly referred to as the unquestioned law of
England. See also Bartlett v. Wells, 1 Best & Smith, 836,
and De Roo v. Foster, 12 C. B. N. S. 272. See further, 10
Peters, 77. 11 Serg. & R. 310. 4 Selden, 440. 25 Wend.
401.
In Norris v. Vance, 3 Richardson, 164, it was held that
though an infant sells goods, fraudulently representing him-
self to be of age, yet he may disaffirm the sale and maintain
trover against the vendee.
Before the action of assumpsit was brought into its present
use and form, the common if not the only way of declaring,
in cases like these, was in an action on the case for special
damage ; and that is yet retained, and often used concurrently
with the modern action of assumpsit.
In the case of Vasse v. Smith, (a) one count in the declara-
tion alleged a consignment of flour to the defendant on com-
mission, to be sold for cash, or drafts payable in sixty days
at a specified place ; and that the defendant violated his un-
dertaking by such negligence and carelessness that the flour
was wasted and lost to the plaintiff. It was decided that
infancy was a legal defence, there being no feature of a tort
for which an infant is liable, but a mere breach of contract.
So, in Schenck v. Strong, {b) infancy was held to be a good
6 Hill, 392, and by the courts of other states. But the case in 5 Hill was un-
derstood by the court of appeals, in Campbell v. Perkins, 4 Selden, 440, to
have decided nothing more than that the title to goods obtained by false repre-
sentations or other frauds of an infant does not pass to him, but that the prop-
erty in them remains in the vendor, who may reclaim them by replevin, (as
in Badger v. Phinney, 15 Mass. 359,) or maintain trover for them, as in cases
of fraud by an adult buyer, and that the cases cited in support of the decision
in 5 Hill decide nothing more. Now between cases of this kind and that of
Johnson v. Pie there is an intelligible distinction, affecting at least the form
of action. When a vendor brings an action against the buyer to recover
damages for deceit or fraud in the sale, he makes his election to consider the
contract of sale as subsisting, and to seek damages for the breach of it. 4
Mass. 505, 506. Such was the action of Johnson v. Pie, and is not overruled
by the class of cases to which Badger v. Phinney belongs.
' (a) 6 Cranch, 226.
(6^ 1 Southard, 87.
INFANTS. 53
bar to an action on the case, alleging that a chair was lent to
the defendant for a particular journey, to be used carefully
and returned at a specified time, yet that he went with it on
a different journey, carelessly broke it, and did not return it at
the time agreed, thereby violating his engagement in every
particular. Had trover been brought in this case, alleging a
conversion of the chair, it probably would have been sustained ;
for in the case of Homer v. Thwing {a) trover was supported
against an infant who hired a horse to drive to one place, and
drove it to another. So, in Vasse v. Smith, above cited, a
count in trover was sustained against the infant, by proof
that he shipped the flour to the West Indies on account of
another person. Chief Justice Marshall said: "infancy is no
bar to an action of trover, though the goods are possessed in
virtue of a previous 'contract. The conversion is still in its
nature a tort, for which infancy cannot afford a protec-
tion." {b)
So, in the case of Mills v. Graham, (c) detinue was main-
tained against a bailee of skins, who, during infancy, took
them to finish on contract and to return them to the owner, but
who afterwards refused to deliver them, and " declared that
he would contest the matter at law, as he was under age."
Chief Justice Mansfield said : " there can be no doubt that
trover might have been brought on the conversion."
In the case of Badger v. Phinney, 15 Mass. 364, it was de-
cided that if an infant represent himself to be of age, and
buy goods on credit, for which he afterwards refuses to pay,
the seller may take the goods from the infant or his adminis-
trator, by writ of replevin ; the court saying " the basis of this
contract has failed, from the fault if not from the fraud of the
infant, and on that ground the property may be considered
as never having passed from, or as having revested in, the
plaintiff." And in cases of sales to an adult, on credit, upon
(a) 3 Pick. 492. See also 16 Verm. 390. 5 Duer, 49.
(h) S. P. Furnes v. Smith, 1 Rol. Ab. 530. Bac. Ab. Infancy and Age,
E. Lewis I'. Littlefield, 15 Maine, 233. Towns v. Wiley, 23 Verm. 355.
Campbell v. Stakes, 2 Wend. 137. Contra in Pennsylvania. Penrose v.
Curren, 3 Rawle, 351, and Wilt v. Welsh, 6 AVatts, 9.
(c) 1 New Rep. 140.
54 LAW OP CONTRACTS.
his false representations the law doubtless is, that the seller
may reclaim the property from the buyer, in a suit against
him, or against any other person except a boyid fide purchaser
from the buyer. 15 Mass. 156. 6 Met. 74. 1 Allen, 483,
484. 19 Maine, 281. 22 Pick. 18. 2 Cush. 48. 12 Pick.
312, 313. 15 Mees. & Welsb. 219. 10 C. B. 926.
This, however, may often be an inadequate remedy. If the
property cannot be found and resumed, the adult contractor
would be remediless, unless he could maintain an action
against the minor for the deceit. But most of the decisions
heretofore cited do not allow the maintenance of such action.
The difference in principle, between allowing the adult to re-
scind the contract or treat it as a nullity and retake the goods,
and allowing him to maintain an action against the minor for
fraud, is not strongly marked.
Even the former course may perhaps be regarded as war-
ranted rather by the principles of natural justice than the
rules of legal conformity ; for, according to the cases hereto-
fore cited, neither silence nor misrepresentation respecting his
age will prevent an infant's avoiding his contract, nor render
him liable in an action ex contractu, {a)
In Forrester's case, 1 Sid. 41, an infant was held entitled
to recover against an adult on an executory contract, where
he (the infant) had not performed his part of the engagement.
If, in this case, the infant had afterwards refused to fulfil his
part of the contract, could the adult have recovered back the
money which he had paid on judgment and execution?
There can be no pretence for it, even if both parties Avere of
full age, and yet the right of the infant to disaffirm would be
no defence for the adult.
Where a minor embezzles money, it is reported to have
been held by Lord Kenyon, {b) at Nisi Prius, that he is liable
in an action ex contractu, for money had and received ; that
the act being a tort, the form of action may be the same as
against an adult, who may be charged in this manner, if the
plaintiff chooses to waive the tort. Judge Reeve advances
(a) See opinion of Chief .Justice Gibson, in 6 Watts, 12, 13.
{})) Bristow V. Eastman, 1 Esp. R. 172 and Peake's Cas. 223,
INFANTS. 65
the same doctrine, (Dom. Eel. 246,) and it has been sanc-
tioned by the supreme court of Vermont, (a) This is an
anomaly, unnecessary to the attainment of justice, (b)
Not only the infant himself, but his representatives, privies
in blood, may avoid his conveyance of real property. His
heir, after his death, may enter and avoid his feoffment made
during minority, (c) By the law of New York, {ante, page 44,)
it seems that the heir may convey by deed, and thus avoid the
former deed of bargain and sale ; or he may enter and take
possession, or do some other act of notoriety and disaffirmance
equivalent to that of the minor's conveyance, (d) His exec-
utor or administrator may refuse to pay debts or fulfil other
executory engagements which he contracted during infancy, (e)
But the guardian of a minor, as such, cannot avoid his ward's
contracts. (/)
A minor's contract cannot be ratified by him during minor-
ity in such a manner as to prevent his disaffirming it on his
coming of age. Mr. Newland and some other writers suppose
there is an exception to this rule, in the case of a minor's
suing an adult on a contract not executed by the minor ; (g-)
that otherwise there vi^ould be no consideration to support the
promise of the adult ; and, therefore, that the court must, in
such case, consider the suit and judgment as a confirmation
not to be avoided by the infant, (h)
If, on a minor's coming of age, he confirm or ratify a void-
able agreement made during nonage, he will thereafter be held
to performance, if it be executory on his part, and cannot
(a) Elwell V. Martin, 32 Verm. 217.
(b) It seems, from Peake's report, that this point was not definitively settled
by Lord Kenyon ; a promise of payment, after the defendant came of age,
being proved. See also Jackson v. Mayo, 11 Mass. 147.
(f) Smalman v. Agborrow, Bridgman, 44. Whittingham's case, 8 Co.
42 b.
(d) See Bac Ab. Infancy and Age, I. 6. 11 Johns. 539. 14 ib. 124.
(e) Cro. Eliz. 126. 9 Mass. 62, 100.
(/) Oliver v. Houdlet, 13 Mass. 240.
(9) As in Forrester's case, 1 Sid. 41.
(h) Newland on Contracts, 14. Sed qucere. See Reeve Dom. Rel. 249,
254, 255. 3 Bur. 1808.
56 LAW OP CONTRACTS.
afterwards avoid it, if it be executed, (a) It has been before
seen, that a void agreement cannot be ratified. But a new
agreement may be made, by which the party may be held to
do the same thing which he promised during infancy, or by
which he may be estopped to avoid his contract made during
that period. The whole binding force, however, of the obliga-
tion in such case, is in the contract made after the party is of
full age. (b)
There is a difference in the effect of the same acts or words,
when applied to an executory and when applied to an exe-
cuted or continuing contract of an infant ; the latter is held to
be ratified by much slighter recognition than is required to
ratify the former.
To ratify an executory contract, as to pay money, or do
other acts infuturo, there must be an express promise, or an
explicit confirmation of a former agreement, to make the pay-
ment or do the other act ; and such express promise or con-
firmation must be made deliberately and freely, (c)
Partial payment of a debt, after the minor comes of age, is
not a ratification, (d) " In the case of an infant," said Lord
Kenyon, " I shall hold an acknowledgment not to be suffi-
cient, and require proof of an express promise to pay, made
by the infant after he has attained that age when the law
presumes that he has discretion. Payment of money made
as in the present case is no such promise." This was a case
of an implied acknowledgment that the debt was due.
But an express acknowledgment is not of itself a ratifica-
tion. An express promise must be superadded. An acknowl-
edgment only rebuts the presumption of payment ; whereas an
infant is allowed to refuse payment, though he acknowledges
(a) Ball V. Hcsketh, Comb. 381. Wilkinson on Limitations, 116.
(5) Baylis v. Dineley, 3 M. & S. 477. Rogers v. Kurd, 4 Day, 57.
(c) 1 Pick. 203. 4 Pick. 49. 1 Bailey 28. 3 Wend. 481,482. 2 Hawks,
535. 5 Esp. R. 103. When a ratification is relied on to support an action
on an infant's voidable contract, is mnst be proved to have been made before
the commencement of the .suit. 1 Pick. 202. 6 N. Hamp. 432. 8 ib. 374,
2 Barn. & Crc-s. 824. IG Maine, 55.
(d) Thrupp V. Fielder, 2 Esp. R. 628.
INFANTS. 67
the debt to be due. (a) Thus, where the defendant, after
he was of age, " said he owed the plaintiff but was unable
to pay him, but that he would endeavor to get his brother
to be bound with him," it was held that the contract made
during minority was not ratified, (b) So, where a minor
made a promissory note and paid a part of the sum due on
it, and, on coming of age, made a will, in which he directed
his just debts to be paid, it was held not to be a ratification
of the note, (c) So, where the same minor received money
from the plaintiff, promising to pay it over to a third person,
and, after he came of age, on being applied to by that person,
said he should pay it to the plaintiff when he should arrive at
his residence, it was held not to be a ratification of the orig-
inal promise, (d)
It is said by Chief Justice Parker, (e) that the terms of rati-
fication need not import a direct promise to pay ; that it is
sufficient if the party explicitly agree to ratify a contract
made during infancy, by language which unequivocally im-
ports a confirmation of it ; as if he say, " I do ratify and con-
firm," &c. Thus, where the party, twice before mentioned,
said, after he was of age, " 1 have not the money now, but
when I return from my voyage I will settle with you," he was
held to have expressly ratified his contract. (/)
So, where the maker of a promissory note, upon being
called upon for payment, at full age, said the note was due,
and that on his return home he would endeavor to procure
(a) Lara v. Bird, cited in Peake on Ev. (2d ed.) 260. 14 Mass.. 460.
1 Pick. 223.
(b) Ford V. Phillips, 1 Pick. 202.
(c) Smith V. INIayo, 9 Mass. 62. Had the note been particularly mentioned
in the will, as a just debt, the decision would doubtless have been different.
The decision, as made, has been questioned by the Court of New Hampshire,
in Wright v. Steele, 2 N. Hamp. 51.
((/) Jackson v. Mayo, 11 Mass. 147. This was a case of embezzlement,
•where trover would have been the proper action without any ratification.
The dictum of the court, (in Cro. Eliz. 127,) that accepting a defeasance,
after coming of age, of a bond made during infancy, is a ratification, and will
hold the obligor to payment, cannot now be considered as law.
(e) 14 Mass. 460. 4 Pick. 49. 4 Chand. (Wis.) 40, 41.
(/) Martin v. Mayo, 10 Mass. 137.
68 LAW OF CONTRACTS.
the money and send it to the promissee. (a) So, where a
minor pm-chased land, for the price of which two other per-
sons gave their note, which he promised to sign and pay after
he should attain full age, and, after attaining full age, he
wrote on the note, " I acknowledge myself holden as co-
surety," he was charged in a suit against him on the note, (b)
A ratification may be conditional ; but the terms of the
condition must have happened, or been complied with, before
an action can be sustained ; as if, on coming of age, the party
promises to pay a debt contracted while he was a minor,
" when he is able," his ability to pay must be proved, in order
to charge him ; (c) or, if he promises to pay, if he receives a
certain legacy, or if he draws a prize in a certain lottery, or
succeeds in collecting a certain debt, &c., he is liable when
the event happens, and not before, (d) On the same principle,
when a party binds himself by a new promise or ratification,
he is liable only to the extent of his new promise ; as where
he promises to pay a certain part of the debt, or the whole by
instalments, he is liable according to his agreement, and no
further nor otherwise, (e)
There probably is an exception to the rule which requires
an express ratification of an executory contract, in the case of
a promise of marriage made during minority. As it is not
necessary to prove an express original promise of this kind in
totidem verbis, but from the nature of the case and the state
of society, it is held to be sufficient to prove the circumstances
and conduct usually accompanying an intended marriage con-
nection, from which the promise is inferred, (/) so it would
(a) Whitaey v. Dutch, 14 Mass. 457.
(6) Thompson v. Linscott, 2 Greenl. 186. See also Barnaby v. Barnaby,
I'Pick. 221. In Cohen U.Armstrong (1 M. & S. 724) it was held, that a repli-
cation to a plea of infancy, that the defendant ratified the original promise,
was good after verdict, on the ground that ratification imports a new promise,
after the party comes of age. See Borthwick v. Carruthers, 1 T. R. 648.
(c) Cole V. Saxby, 3 Esp. R. 159. Thompson v. Lay, 4 Pick. 48. Proc-
tor V. Sears, 4 Allen, 95.
(d) 4 Pick. 49, by Chief Justice Parker.
(e) Peake on Ev. (2d ed.) 260.
(/) 2Stark. Ev.(4th Araer. ed.)941. SSalk. 16,64. 6 Mod. 172. 15
Mass. 1.
INFANTS. 59
seem that if a minor, who was thus proved to have promised
marriage, should, after coming of age, continue his addresses,
and pursue the course of conduct which usually evinces an
existing engagement, he should be held to have ratified his
original promise.
It is generally stated in the books that it is necessary to the
ratification of a contract made during minority, that the prom-
ise to perform it, made after the party is of full age, should
be not only express and voluntary, but also be made with
knowledge that he is not legally liable on the original con-
tract. The origin of this last alleged requisite of a ratifica-
tion is a dictum of Lord Alvanley in Harmer v. Killing, 5 Esp.
R. 103, which several judges in this country have repeated, {a)
^ and which has been transferred into various legal treatises,
English and American. But it was never so adjudged in
England, nor in the United States, with the exception of the
case of Hinely v. Margaritz, 3 Barr, 428, reported without
discussion by counsel or reasons assigned by the court. And
in Morse v. Wheeler, 4 Allen, 570, the dictum of Lord Alvan-
ley was held not to be sustained nor sustainable, and it was
decided not to be necessary to a ratification, that the new
promise should be made with knowledge that the party was not
legally liable on the old one ; it being a long established legal
principle that he who makes an engagement freely and fairly
cannot be excused from performing it by reason of his igno-
rance of the law when he made it.
Where the contract is executed on the part of the infant,
or is a continuing contract in the progress of execution, slight
acts of affirmance and recognition, after he comes of age, will
ratify it and prevent his subsequently avoiding it; whether
the contract relates to property, &c., transferred by him to
another, or by another to him.
1. Where an infant has transferred property to another.
If an infant make a lease rendering rent, and accept rent
after he comes of age, it is a ratification of the lease, and he
(a) 9 Mass. 64. 1 Pick. 203. 16 Maine, 57. 11 Serg. & R. 311. 4
Sneed, 118. 3 Richardson, 168.
60 LAW OF CONTRACTS.
cannot afterwards avoid it. (a) This was a case, where, after
accepting rent, as just stated, the lessor ousted the lessee, and
the latter supported an action of trespass against him for the
interruption.
Where a minor mortgaged his land, and, on coming of age,
conveyed it to another person in fee, subject to the mortgage,
which he recognized in the second deed, it was held to be a
ratification of the mortgage, (b) So, if his guardian lease
his land for a terra beyond his minority, and after coming of
age he do any act expressive of his assent, (c) it is a ratifica-
tion. In one case, where, on coming of age, he said to the
person to whom he had previously given a lease, " God give
you joy of it," it was held by Mr. Justice Mead that he could
not afterwards avoid it. (d)
On the question whether an infant ratifies his conveyance
of real estate, or precludes himself from disaffirming it, by
mere omission, after coming of age, to take measures to dis-
affirm it, there has not been an entire uniformity of opinion.
In 1 Amer. Lead. Cas. (4th ed.) 256, is this statement :
" Where land has been sold by an infant, it was said in Kline
V. Beebe, 6 Conn. 494, where the acquiescence was for thirty-
five years, that the infant ought to declare his disaffirmance
within a reasonable time ; and similar dicta may be found
in other cases ; but there seems to be no doubt, upon the
decided cases, that mere acquiescence is no confirmation of
a sale of lands, unless it has been prolonged for the statutory
period of limitation ; and that an avoidance may be made
any time before the statute has barred an entry. Tucker v.
Moreland, 10 Peters, 58. Drake v. Ramsay, 5 Ohio, 251, 255.
Cresinger v. Lessee of Welch, 15 Ohio, 156, 193. Boody v.
(a) Ashfeild v. Ashfeild, W. Jones, 157, affirmed in the Exchequer Cham-
ber by all the judges. Latch, 199 and Godb. 364.
(b) Boston Bank v. Chamberlain, 15 Mass. 220. Story v. Johnson, 2 Y. &
Coll. Exch. 607. Phillips v. Green, 5 Monroe, 355.
(c) 2 Southard, 460. Smith v. Low, 1 Atkins, 489.
(d) 4 Leonard, 4. In Dalison, 64, pi. 25, it was decided, that where an in-
fant sold a farm, and at full age received part of the price, he might never-
theless avoid the sale. This is not now law, the ground of the decision being
INFANTS. 61
M'Kenney, 23 Maine, 517, 523, 524. (a) That slight or vague
declarations will not amount to a ratification. Glamorgan i\
Lane, 9 Missouri, 447, 473. There may, however, be an ac-
quiescence and assent under such circumstances as to amount
to an equitable estoppel upon the vendor. Hartman v. Kendall,
4 Ind. 403. Thus, in Wheaton v. East, 5 Yerg. 41, 62, it was
held, where an infant had sold land, and after coming of age
saw the purchaser making large expenditures in valuable im-
provements, and said nothing in disaffirmance for four years,
that the circumstances were such as not to excuse this long
silence; and there being evidence that on several occasions the
vendor had said, after age, that he had sold the land and been
paid for it and was satisfied, and had authorized a proposi-
tion to be made for the purchase of it, it was held that the
sale was confirmed. And in like manner, in Wallace's Lessee
V. Lewis, 4 Harrington, 75, 80, it was held that an infant's
acquiescing in a conveyance for four years after age and
seeing the property extensively improved, would be a con-
firmation. And see Jones v. Phoenix Bank, 4 Selden, 235.
Though mere lapse of time will not be a confirmation, un-
less continued for twenty-one years, yet the lapse of a less
period, in connection with other circumstances, may amount
to a ratification. 15 Ohio, ubi sup. Norris v. Vance, 3
Richardson, 64." {b) In Ferguson v. Bell, 17 Missouri, 347,
that the original contract was void, which would now be regarded as voidable,
and the acceptance of part payment as a ratification.
(a) To those cases may be added Jackson v. Carpenter, 11 Johns. 539.
Jackson v. Burcliin, 14 Johns. 124. Doe v. Abernathy, 7 Blackf. 442. Em-
mons V. Murray, 16 N. Hamp. 394, 395. Voorhies v. Voorhies, 24 Barb. 153.
Urban v. Grimes, 2 Grant, 96. Vaughan v. Parr, 20 Ark. 600.
(b) By statute in Iowa, (before referred to for another purpose,) a minor is
bound by all his contracts, unless he disaffirms them within a reasonable time
after he attains his majority. In Jenkins v. Jenkins, 12 Iowa, 199, in a suit to
avoid a deed of real estate made by the complainant while an infant, the court
said that what was a reasonable time, within the meaning of the statute, must
of course depend upon the circumstances of each case ; and that in the case
before them, no special equitable circumstances were shown why the com-
plainant should sooner have manifested his disaffirmance, and that his delay
was not unreasonable.
By statute in Illinois, a minor, in order to revoke his conveyance of real
62 LAW OF CONTRACTS.
where an infant executed a deed, and after coming of age
expressed satisfaction with her bargain, received part of the
consideration money, and spoke of an intention to make a
confirmatory deed, but died suddenly without doing so, it was
held that this was a sufficient ratification. See also Bostwick
V. Atkins, 3 Corast. 53.
2, Where property, &c., is transferred to an infant.
If he takes a conveyance of land during minority, and re-
tains possession after he is of age, he ratifies the conveyance
and cannot afterwards avoid it, {a) or if he bargains and sells
the same land to a stranger, (b) Or if he makes an exchange
of land, and after he is of age, continues in possession of the
land received in exchange, (c) So, if he takes a lease render-
ing rent, and continues in the occupation of the land, after he
comes of age. (d) In such cases, the disaffirmance must be
made in a reasonable time after coming of age ; but where so
much must depend on circumstances, it is impossible to fix
any period as a reasonable one in all cases. 1 Piatt on
Leases, 528, 529.
Where an award was made, on a submission by a minor's
guardian, that the minor should pay his mother an annuity in
lieu of dower in his estate, and he accepted the estate free of
dower, and after he was of age enjoyed it thus free, he was
held to have ratified the award, (e)
If " consentable lines " of real property are run, and agreed
upon by a minor, and he acquiesces in them after he comes of
age, it seems to be a ratification of the boundaries. (/) If an
infant makes an agreement, and receives interest under it after
he comes of age, chancery will decree that he perform it. (g)
estate, must commence proceedings within three years after coming to full
age. Cole v. Pennoyer, 14 Illin. 158.
(a) Lynde v. Budd, 2 Paige, 191. Dana v. Coombs, 6 Greenl. 89. Arm-
field V. Tate, 7 Ired. 258.
(b) Hubbard v. Cummings, 1 Greenl. 11.
(c) Dalison, 64. 2 Vernon, 225. Co. Lit. 51 b. Shep. Touch. 299.
00 Com. Dig. Enfont, C. 6.
(e) Barnaby v. Barnaby, 1 Pick. 221.
(/) Brown v. Caldwell, 10 Serg. & K. 114.
(g) Franklin v. Thornebury, 1 Vernon, 132.
INFANTS. 63
If, after full age, he occupy and enjoy a copyhold tenement,
he is liable to pay the fine due on admittance, (a) So, if he
make an unequal partition of lands, and, after he is of age,
receive the profits of the part allotted to him, he ratifies the
partition. (6)
In the case of Holmes v. Blogg, (c) where a lease was taken
by an infant and an adult, as partners, though the infant did
not continue in possession after he came of age, and dissolved
the partnership, yet Mr. Justice Park inclined to hold that
unless there were some act of disaffirmance, the party was
bound by his original agreement ; and ]\Ir. Justice Dallas said,
that " in every instance of a contract voidable only by an infant
on coming of age, he is bound to give notice of disaffirmance
of such contract in a reasonable time." This, however, was
not the point adjudged in that case. Yet it has since been
repeatedly decided that the omission to disaffirm in a reason-
able time after coming of age, and the retaining and use of
property bought by him, are effectual evidence of a ratification
of a purchase of personal property, (d) But where the sellers
of goods to an infant sued him for the price, three days be-
fore he came of age, and attached them, and they remained
in the hands of the attaching officer at the time of the trial
of the suit, and the defendant gave no notice, on coming of
age, of his intention not to be bound by the contract, it was
held that there was not a ratification of it, and that infancy
was a defence to the suit, (e)
In the case of Goode v. Harrison, 5 B. & Aid. 147, where
an infant had been in partnership with an adult until within
a short period of his coming of age, he was held liable for
goods sold to his former partner, after he came of age, because
(a) Evelyn v. Chichester, 3 Bur. 1717.
(6) Lit. § 258. Co. Lit. 171.
(c) 8 Taunt. 35.
(d) Lawson v. Lovejoy, 8 Greenl. 405. Delano v. Blake, 11 Wend. 85.
Deason v. Boyd, 1 Dana, 45. Kline j;. Beebe, 6 Conn. 494. Boyden r. Boy-
den, 9 Met. 519. Cheshire v. Barrett, 4 McCord, 241. Robbins v. Eaton, 10
N. Hamp. 561. Richardson v. Boright, 9 Verm. 368. Henry v. Root, 33
N. Y. Rep. 526, 551.
(e) Smith v. Kelley, 13 Met. 309.
64 LAW OF CONTRACTS.
he had not given notice of a dissolution of the partnership.
This case was not decided on grounds peculiar to infancy.
Partners who retire are always liable, even after dissolution
of copartnership, until notice is given. Had the goods been
furnished before the minor came of age, he would not have
been chargeable ; his infancy would have protected him, as
well after the dissolution as before. But, on coming of age,
he thereafter incurred the same liabilities, and was held to the
same duties, concerning the partnership, as if he had been of
full age when it existed. So in Miller v. Sims, 2 Hill's (S. C.)
Rep. 479, it was held that where one, who was a partner dur-
ing infancy, concurred in carrying on the partnership, or re-
ceived profits from it, after coming of age, this amounted to a
ratification of the partnership and rendered him liable on a
note of the firm given during his minority, without his knowl-
edge. Whether an infant is liable, in such case, on a note of
which he has no knowledge, was doubted in Crabtree v. May,
1 B. Monroe, 289. In Dana v. Stearns, 3 Cush. 372, where a
partner, before coming of age, dissolved the partnership and
sold his property therein to his copartner, taking his note
therefor, secured by mortgage, and his obligation to pay the
debts of the firm, and after coming of age proved his note
against the estate of his copartner in insolvency, and in-
stituted proceedings to enforce his claim under the mortgage,
it was decided that he had not ratified the partnership.
There are some contracts made by infants which are ex-
cepted from the general rule. They are neither void nor
voidable, but are obligatory ab initio, and need no ratifica-
tion.
1. Where a statute authorizes an infant to make a contract
for the public service, (as to enlist into the army or navy) such
contract is deemed to be for his benefit, and is neither void nor
voidable, (a)
2. Contracts of marriage, if executed, are binding, and can-
not be avoided on the ground of infancy.
By the common law, the age of consent to a marriage is
(a) United States v. Bainbridge, 1 Mason, 71. See 11 Mass. 65, 71.
Cooke, 143. 4 Binn. 487. 11 Serg. & R. 93. 1 ib. 353.
INFANTS. ' 65
fourteen years in a male, and twelve in a female infant. This
is called the age of discretion, but not full age.
If a boy over fourteen and a girl over twelve years of age
are married, the marriage is as valid and indissoluble as if
they were of full age. But if, at the time of marriage, either
of them be under the age of discretion, such party, on arriving
at that age, may disaffirm the marriage, without the interposi-
tion of any tribunal, or any process of divorce. The disaf-
firmance, however, cannot be made before the age of discre-
tion.
If one of the married parses be of years of discretion, and
the other not, the elder party, when the other comes to such
years (and not before), may disaffirm the marriage.
If, at the age of discretion, they agree to continue together,
they need not, by the common law, be married again. Their
continued cohabitation is a confirmation of the original con-
tract. So, if a boy under fourteen takes a wife over twelve
years of age, and sues a third person for taking her away,
and " makes any continuation of the suit " after he is four-
teen years old, he ratifies the marriage, and cannot afterwards
avoid it. But if the wife, in such case, be under twelve years,
the prosecution of the suit, after he is fourteen, would not, it
seems, produce this effect ; for, on her becoming twelve years
old, she would have a right to disaffirm the marriage ; and, by
a strange anomaly, before mentioned, he would have the same
right ; " because," says Lord Coke, " in contracts of matri-
mony, either both must be bound, or equal election of dis-
agreement given to both ; and so e converso, if the woman be
of the age of consent and the man under." Therefore, a man
twenty years old may marry a girl of eleven, or a woman of
twenty may marry a lad of thirteen, they may live together a
year, and yet because the junior party at that time has the
power to disaffirm the marriage, the senior shall also have the
same power, although the junior may desire to ratify the con-
nection, (a)
It has been before seen that an infant's promise of marriage
(a) See Co. Lit. 79 and notes 44 and 45. 1 Rol. Ab. 341. Bac. Ab. In-
fancy and Age, A. 1 Gray, 121. 7 ib. 483. 1 Chip. 254.
66 * LAW OF CONTEACTS.
is voidable, (a) but that an adult's promise to an infant is
binding ; and, a fortiori, it would seem, that an actual mar-
riage by an adult should be binding. If parties are by law
allowed to marry before full age, good sense and good morals
seem to require that the marriage, if not wholly void for some
legal defect, should be obligatory on both the parties.
3. By the custom of London, a minor may bind himself as
an apprentice, and his covenants will be obligatory. Infancy
is no defence to a suit against him for violation of his inden-
tures, (b) Bat it is otherwise by the common law of England,
and also under the statutes of Elizabeth, and the statutes of
Massachusetts and New York, (c) Still, although he is not
liable for breach of his covenants, he cannot avoid and dis-
solve the indentures. They are so far binding upon him, that
the master may enforce his rights under them ; and the legal
incidents of service as an apprentice attach to the relation
thus formed between the parties, (d) As this doctrine is
adopted for the infant's benefit, on the ground that it is for
his advantage to be held to an apprenticeship, it does not ap-
ply where his master has run away or deserted him, so that
he cannot reap the advantages of the contract, (e)
4. The acts of the jcing, whether private or official, cannot
be avoided on the ground of infancy. And, in general, the
acts of an infant, that do not touch his interest, but which
take effect from an authority which he is by law trusted to
exercise, are binding; as if an infant executor receives and
acquits debts due to the testator, or an infant officer of a cor-
poration joins in corporate acts, or any other infant does the
duties of an office which he may legally hold. (/)
5. By special local customs, as gavelkind, &c., infants may
(«) Ante, pp. 38, 39. 5 Sneed, 659.
(b) Horn v. Chandler, 1 Mod. 271. Burton v. Palmer, 2 Bulstr. 192.
Stanton's case, Mo. 135. See also Eden's case, 2 M. & S. 226.
(c) Cro. Jac. 494. Cro. Car. 179. Hutton, 63. 7 Mod. 15. 8 Mod.
190. Blunt V. Melcher, 2 Mass. 228. M'Dowle's case, 8 Johns. 331.
(d) 5 Dowl. & Ryl. 339 and 3 Barn. & Cres. 484. See also 6 T. R. 558,
652.
(e) 3M. &S. 49 7.
(/) Bac. Ab. Infancy & Age, B. 3 Bur. 1802.
INFANTS. 67
make binding contracts respecting their property, after they
arrive at years of discretion. So, after that age, they may, by
the general common law, do many binding acts, as the elec-
tion of guardians, the making of a will, disposing of personal
property, &c. (a)
6. " Generally," says Lord Coke, " whatsoever an infant is
bound to do by law, the same shall bind him, albeit he doth
it without suit at law ; " (b) as, if he make equal partition
of lands, or an equal assignment of dower, or release an
estate mortgaged, on payment of the sum for securing which
the mortgage was given.
7. It is laid down in Comyns's Digest, Enfant, C. 6, and
in some other books, that if an infant take a lease of land, and
enter upon and enjoy it, he shall be charged with the rent;
and the case of Kirton v. Eliott (c) is cited in support of
this position. The supposed doctrine of that case is recog-
nized by Mr. Justice Yates ; (d) and Lord Mansfield (e) enu-
merates payment of rent among the acts which an infant is
compellable to do ; and, in another case, (/) he says, " if an
infant takes an estate and is to pay rent for it he shall not
hold the estate, and defend against payment on the ground
of infancy."
If this be law, it rests merely on authority unsupported by
analogy. There is no difference in principle between the
rent of an estate enjoyed by an infant, and any other prop-
erty which he has received and used. If he have a family,
the rent of a house might fairly be classed among necessaries
for which he would be liable to pay. But this does not ap-
pear to have been the ground of the decision in the case re-
ported by Bulstrode. It is the same case, under a different
name, which is found also reported by Croke, (g-) and Brown-
low, (h) According to their reports, the question was dis-
cussed on a demurrer to the defendant's plea of infancy, and
the court held the lease not to be void, but voidable at the in-
(ft) 1 Hale P. C. 17. Bac. AK Infancy & Age, A. B.
(5) Co. Lit. 38 a, 172 a. 3 Burr. 1801. 6 Mass, 80. 13 Met. 372.
(c) 2Bulst. 69. (d) 3 Bur. 1719. (e) 3 Bur. 1801.
(y) 2 Eden. 72. (^g) Cro. Jae. 320. (A) 1 Brownl. 120.
68 LAW OP CONTRACTS.
fant's election, and that as he came of age before rent day, he
was answerable for the rent ; which would seem to have been
on the ground of a ratification, {a)
Bulstrode states, that the defendant demurred to the decla-
ration which stated that he was an infant, and that he after-
wards waived his demurrer, and pleaded to issue. What the
issue was does not appear. " The case then appeared," says
Bulstrode, " to be : A lease was made to an infant, rendering
rent; whether he shall be charged with the payment of this
rent, or riot, was the question." At the end of the report, he
says, " the court were all clear of opinion that the infant les-
see was liable to pay the rent." The ground of the decision
does not appear. But from the whole case, taken in connec-
tion with the other reports of it, it seems most probable that
the court considered the continuance in possession, after the
lessee came of age, as a ratification, and decided the case on
this point; although this report does not mention his having
arrived at full age ; for Mr. Justice Dodderidge is made by
Bulstrode to say, " if a lease be made to husband and wife,
rendering rent, the husband dies, the wife may waive this,
and so avoid payment of the rent ; but if she continue the
possession, she shall be charged with the rent." There
does not seem to be much pertinency in this illustration,
unless the continued possession of the infant, after he came
of age, was the ground on which he was held liable to pay
the rent.
The loose manner in which this case is stated by all the
reporters hardly warrants its being regarded as authority for
any anomalous doctrine, or for an exception to any established
rule. And it is noticeable that in 1 Rol. Ab. 731, 2 D'Anvers
Ab. 774, Vin. Ab. Enfant, K. and Bac. Ab. Infancy and Age,
I. 8, the case of Kirton v. Eliott is cited to the position that
if, after coming of age, he to whom premises were leased dur-
ing his infancy, continues in the occupation, he is chargeable
with the arrears of rent incurred during infancy. And thus
Lord EUenborough, in 3 M. & S. 481, understood the case.
(rt) How the defendant's coming of age before rent day could appear to
the court on a demurrer to his plea of infancy is not readily seen.
INFANTS. 69
See also 2 Kent Com. (11th ed.) 263, 264. 23 Maine, 524. 1
Pick. 224. But see 5 Exch. 126. (a)
8. The most important exception to the general rule is that
of contracts for necessaries.
It has always been held, that an infant is bound to pay for
such necessary things as relate immediately to his person, as
his meat, drink, lodgings, apparel, medical attendance, and for
such instruction as may profit him in subsequent life, (b) He
is also liable for such necessaries, if supplied to his wife and
lawful children ; and, during coverture, for the debts of his
wife contracted before marriage, (c)
The word " necessaries " is a relative term, and not con-
fined to such things as are positively required for mere per-
sonal support ; but is to be construed with reference to the
estate and degree, the rank, fortune, and age of the infant.
6 Mees. & Welsh. 42. 1 Gray, 458. Thus, a livery for the
servant of an infant captain in the English army was con-
sidered necessary. Lord Kenyon said he could not say it was
not necessary for a gentleman in the defendant's situation to
have a servant ; and if it were proper for him to have one,
it was equally necessary that the servant should have a
livery, (d) But it is otherwise, of cockades ordered for the
soldiers of his company, (e) and of a chronometer sold to an
(a) This discussion of an infant's liability for rent was first published in the
U. S. Law Intelligencer, vol. iii. p. 16.
(b) Finch, 103. Co. Lit. 172, a. 1 Wooddeson, 402. Bing. on Infancy,
87. 6 Mass. 80, by Chief Justice Parsons. Concerning instruction given to
an infant, little is found in the English reports, and nothing definite. It
seems to have been held that instruction in reading and writing (1 Sid. 112)
and schooling, (Palm. 528 and W. Jon. 182,) are regarded as necessaries. In
Vermont, it was decided that a collegiate education was not among necessa-
ries for him who was there sought to be charged therefor ; but Royce, J. in
giving the opinion of the court, said that '' a good common-school education is
now fully recognized as one of the necessaries for an infant." Middlebury
College V. Chandler, 16 Verm. 686. See 6 Mees. & Welsh. 48. The law
of apprenticeship in this country is regulated by the statutes of the several
states.
(c) Turner v. Trisby, 1 Strange, 168. Paris v. Stroud, Barnes, (2d ed.)
95. Bui. N. P. 155. Reeve Dom. Rel. 234. 9 "Wend. 238. 7 Met. 164.
(d) Hands v. Slaney, 8 T. R. 578. (e) lb.
70 LAW OF CONTRACTS.
infant lieutenant in the royal navy, (a) Regimentals for an
infant member of a volunteer corps were held to be neces-
sary, (b)
The law distinguishes between persons, as to the fitness of
necessaries, as between a nobleman's and gentleman's son ;
so also as to the time and place of education, as at school,
Oxford, and the inns of court, (c) " Balls and serenades at
nisht must not be accounted necessaries," even in the case of
a nobleman, (d) Suits of satin and velvet with gold lace were
held, in the time of Queen Elizabeth, not to be necessary for
an infant, although he were a gentleman of the chamber to the
Earl of Essex. But a doublet of fustian and hose of cloth
were held to be suitable to his estate and degree, (e)
" Horses may be very fit for an infant, as on account of his
quality or constitution," says Mi-. Justice Chappie ; and, if they
are suitable to his condition, he is liable for the price of them,
and for their keeping and medicines. (/)
Lord Mansfield said, (g-) that a sum advanced for taking
an infant out of jail is for necessaries ; and Lord Alvanley
held, (h) that money advanced to release an infant from cus-
tody on mesne process, for a debt contracted for necessaries,
or from custody on execution, is paying for necessaries. So
if money be laid out for necessaries furnished to an infant, he
is liable to the person thus advancing the money. {() So if
(a) Berolles v. Ramsay, HoltlST. P. Rep. 77.
(b) Coates v. Wilson, 5 Esp. R. 152.
(c) Rainsford v. Fenwick, Carter, 215. See Wharton v. Mackenzie, 5 Ad.
& EI. N. S. 606. Brooker v. Scott, 11 Mees. & Welsb. 67.
(d) By Chief Justice Vanghan, Carter, 216.
(e) Mackerell v. Bachelor, Gouldsb. 168 and Cro. Eliz. 583.
(/) Brooks V. Crowse, Andr. 277 and 2 Strange, 1100, by the name
of Clowes V. Brooke. Barber v. Vincent, 1 Freeman, 531. In Rainwater v.
Durham, 2 Nott & McCord, 524, three of the judges of South Carolina, against
the opinion of the other two, held that a horse was not necessary for an in-
fant, who was married and had a farm. See also 1 McCord, 572. 1 Bibb,
521. 2 Humph. 27. 13 Met. 306. 7 Car. & P. 52.
ig) 2 Eden, 72.
(h) Clarke v. Leslie, 5 Esp. R. 28.
(i) Ellis V. Ellis, 5 Mod. 368. Earle v. Peale, 1 Salk. 387 and 10 Mod. 67.
Rearsby & Cuffer's case, Godb. 219. Swift v. Bennett, 10 Cush. 436.
INFANTS. 71
one, who is surety on a note, &c., given by an infant for
necessaries, pay the money, the* infant is liable to him in an
action for reimbursement, (a)
If an infant lives with his parent, guardian, or other person
under whose care he is placed by his parent, guardian or
friend, and is properly maintained, he cannot bind himself to
a stranger for necessaries. Thus, where an action was
brought for ornamental clothes sold to an infant who lived
with her mother and was decently provided for by her, the
com-t decided that the plaintiff could not recover; "for no
man," said Mr. Justice Gould, " shall take upon him to dic-
tate to a parent what clothing the child shall wear, at what
time they shall be purchased, or of whom." (b) And where
a parent, &c., places an infant at board, or at school, as the
credit is given to the parent, &c., the infant is not liable, (c)
Before a tradesman trusts an infant for apparent necessa-
ries, he ought to inquire whether he is provided for by his
parents or friends. And he is bound to ascertain the infant's
real situation in life, and not to rely on appearances. If
therefore he furnish articles which would be necessary, if the
infant were not already supplied by his parents, or if, confid-
ing in false appearances, he furnish articles too expensive or
numerous for the infant's real condition, he is not entitled to
recover pay for them, (d) But where an infant furnished a
tailor with cloth for a suit of clothes, and employed him to
make them, and provided the trimmings ; the tailor recovered
pay for his labor, &c., although the clothes were not suitable
to the infant's rank and condition, (e)
Goods furnished to an infant trader are not necessaries,
(fl) 7 N. Hamp. 368.
lb) Bainbridge v. Pickering, 2 W. Bl. 1325. Wailing v. Toll, 9 Johns.
141. Kline v. L'Amoureux, 2 Paige, 419. Edwards v. Higgius, 2 McCord
Ch. 16. See also 16 Mass. 31. 4 Watts, 80. 15 Ark. 140.
(c) Duucomb v. Tickridge, Aleyn, 94. Bac. Ab. Infancy and Age, I. 1.
{d) Ford V. Fothergill, Peake's Rep. 229 and 1 Esp. R. 211. 2 Paige,
419. Mortara v. Hall, 6 Simons, 465. Steedman v. Rose, Car. & Marsbm.
422. Johnson v. Lines, 6 Watts & Serg. 80. Story v. Pery, 4 Car. & P.
526.
(e) Delaval v. Clare, Latch, 156 and Noy, 85.
72 LAW OP CONTRACTS.
although he gain his living by trade, (a) But for such part of
goods thus furnished as he uses as necessaries in his family
he is liable, (b) Labor, &c., for an infant mechanic, on arti-
cles to be furnished to his customers, is not within the law of
necessaries, (c)
In a case before Mr. Baron Clarke, (d) he ruled that an
infant was liable for the price of sheep bought to stock a farm
in which he had been set up. Such is the Scotch law, but
not the law of England, nor of this country, (e)
In Tupper v. Cadwell, 12 Met. 559, it was held that an in-
fant was not liable for the expense of repairing his house,
though the repairs were necessary to prevent immediate and
serious injury to it. And in New Hamp. Mut. Fire Ins. Co. v.
Noyes, 32 N. Hamp. 345, that he was not liable on a contract
for insurance of his property against loss or damage by fire.
And in Phelps v. Worcester, 11 N. Hamp. 51, that he was not
liable for counsel fees and expenditures in a suit at law
brought to protect his title to an estate.
In the case of Ellis v. Ellis, (/) it was decided that money
lent to an infant, for the purpose of buying necessaries, can-
not be recovered of him. In this case, it appears, from some
of the reports of it, that the court held that if the money
were actually expended for necessaries, the infant would be
chargeable, (g-) But the weight of authority is, that an in-
fant is not liable at law for money lent for thhi purpose and
actually thus appropriated. The contract arises upon the
lending, and as is said by the court, (h) " the law knows of
no contracts but what are good or bad at the time of the
contract made ; and not to be one or the other according to a
(a) Whittingham v. Hill, Cro. Jac. 494. Why wall v. Champion, 2 Strange,
1083. Mason v. Wright, 13 Met. 308.
(b) Turberville v. Whitehouse, 12 Price, 692 and 1 Car. & P. 94.
(c) Dilk V. Kcighley, 2 Esp. R. 480.
(d) Mentioned in Bui. N. P. 154 and Onslow's N. P. 150.
(e) Reeve Dom. Rel. 234. 2 Nott & M'Cord, 525.
(/) 5 Mod. 368. 12 Mod. 197. 1 Ld. Raym. 344.
(ff) See also Bui. N. P. 154. 3 Salk. 196, 197. And it was decided
in Smith (,'. Oliphant, 2 Sandf. 306, that he was liable for money lent in and
about the purchase of necessaries for him, and which was applied under his
guidance, directly by the lender. CO ^^ Mod. 67.
INFANTS. 73
subsequent contingency." (a) The lender, however, is en-
titled to relief in chancery. (6)
Whether articles furnished to an infant are of the classes
which are necessaries suitable to his condition, is a question
of law; whether they are actually necessary, and of reason-
able prices, is a question of fact ; " our being judges of the
necessaries," say the court in Carter, 216, " is to the nature
of the thing, not to the particulars ; that indeed must be tried
by the jury." (c) But in this class of cases, as in others,
the court will set aside a verdict that is against the evi-
dence, (d)
In 10 Mod. 85, it was said, arguendo, that an infant cannot,
either by a parol contract or a deed, bind himself even for
necessaries in a sum certain ; for should he promise to give
an unreasonable price for them, that would not bind him ;
and therefore it may be said that his contract for necessaries,
quatenus a contract, does not bind him any more than his
bond would, but only since an infant must live, as well as a
man, the law gives a reasonable price to those who furnish
him with necessaries. And it is said by Chancellor Kent (2
Com. 6th ed. 240, 11th ed. 263) that an infant is not bound
to pay for articles furnished more than they were really
worth to him as articles of necessity, and consequently he
may not be bound to the extent of his contract; nor can he
be precluded, by the form of the contract, from inquiring into
the real value of the necessaries furnished. See 2 Nott &
M'Cord, 525. 1 Bibb, 520.
Conformably to .these views, it is held that an infant is not
(a) Earle v. Peale, 1 Salk. 386. Darby v. Boucher, ib. 279. Proubart v.
Knouth, 2 Esp. E. 472, n. 1 P. W. 558. 10 Cusb. 438. 5 R. I. 347.
(l) 2 Evans's Pothier on Obi. (1st Amer. ed.) 26. Marlow i'. Pitfeild, 1
P. W. 558.
(c) Maddox v. Miller, 1 M. & S. 738. Lowe v. Griffith, 1 Scott, 458 and
1 Hodges, 30. Peters v. Fleming, 6 Mees. & Welsh. 42. Beeler v. Young,
1 Bibb, 519. Glover v. Ott, 1 McCord, 572. Davis v. Caldwell, 12 Gush.
512.
{(1) Harrison v. Fane, 1 Man. & Grang. 550 and 1 Scott N. R. 287. Run-
del t'. Keeler, 7 Watts, 239. Johnson v. Lines, 6 Watts & Serg. 80. Mer-
riam v. Cunningham, 11 Cush. 40, 44.
74 LAW OF CONTEACTS.
liable on an account stated ; (a) nor on a bill of exchange ac-
cepted ; (b) nor on a negotiable note, (c) nor on a cognovit, (d)
given for necessaries.
In an action on an account stated, it was said in an early-
case (Latch, 169) " evidence shall not be upon the value of
the things, but upon the account only." All that was then
required to maintain such action was proof that the defend-
dant had voluntarily stated the account, and had made a
promise, express or implied, to pay it. This was conclusive.
But, at a later day, (as said by Lord Mansfield, 1 T. R. 42,)
gi-eater latitude prevailed, and surcharged items in the account
were allowed to be corrected, (e) It was still held, however,
that an infant is incompetent to state an account. But an
account stated by him is not now deemed to be void, but
voidable only, and a proper subject of ratification on his com-
ing of age. (/) S.o it was decided in Reed v. Batchelder, 1
Met. 559, in case of an infant's negotiable note ; and also
that upon his having ratified it, he was answerable thereon to
him to whom the promisee subsequently transferred it. See a
like decision by the supreme court of New Brunswick, in the
case of Fisher y. Jewett, Berton, 23.
On the question whether an infant is bound by a note not
negotiable, given for necessaries, there is a difference of opin-
ion in the English books. But it is said in Story on Notes,
§ 78, (citing English and American books) that the weight
of authorities greatly preponderates in favor of holding such
(a) Pickering v. Gunning, Palmer, 528. Wood v. Witherick, Latch, 169
and Nov, 87. Trueman v. Hurst, 1 T. R. 40. Bartlett v. Emery, 1 T. R.
42, note. Ingledew v. Douglass, 2 Stark. R. 36.
(b) Williamson v. Watts, 1 Campb. 552.
(c) Swasey v. Vanderheyden's Adm'r, 10 Johns. 33. Fenton v. White, 1
Southard, 100. Hanks v. Deal, 3 McCord, 257. Bouchell k. Clary, 3 Bre-
vard, 194. McCrillis v. How, 3 N. Hamp. 348. McMinn v. Richmonds, 6
Yerg. 9. In these cases, such notes were held to be void.
(fl) Oliver V. Woodrofie, 4 Mees. & Welsh. 650 and 1 Horn & Hurlst. 474.
(e) See Tucker v. Barrow, 7 Barn. & Cres. 623. Thomas v. Hawkes, 8
Mees. & Welsh. 140. Perkins v. Hart, 11 Wheat. 256. Holmes v. D'Camp,
1 Johns. 36.
(/) Williams v. Moor, 11 Mees. & Welsh. 256.
INFANTS. 75
notes voidable only. It was so held in Dubose v. Wheddon, 4
McCord, 221. See also 2 Kent Com. (6th ed.) 235, (11th ed.)
257. Kyd on Bills, (3d ed.) 29. Bayley on Bills, (6th ed.) 46.
A bond with a penalty, given by an infant for necessaries,
was early decided to be void. Ayliffe v. Archdale, Cro. Eliz.
920 and Mo. 679. See ante, page 40, that any bond with a
penalty, given by him, is void.
It was said in Cro. Ehz. 920, and decided in Russel v. Lee,
1 Lev. 86, that an infant is bound by his single bill given for
necessaries. And this has been repeatedly stated in later
books. Kyd on Bills, (3d ed.) 29. Hurlstone on Bonds, 3.
Bingham on Infancy, 89. Judge Reeve supposes (Dom. Rel.
231) that when this was decided the consideration of a single
bill might be inquired into, and that since the contrary has
been held, an infant should not be bound by such bill. And
in all the editions of Chitty on Contracts, it is doubted whether
he can now be so bound. But this is a matter of no practical
importance ; in England, a single bill " being now as rare as
a statute staple." 1 Campb. 553, note. 2 Macpherson on In-
fants, 498, 499. The case of Beeler v. Young, 1 Bibb, 509,
was an action against an infant on a single bill. The plain-
tiff failed to prove that it was given for necessaries. But the
court expressed no doubt that the true value of necessaries
might be recovered in such action ; though the bill did not
bind the infant as a contract, and had no obligatory force as
buch, and that to charge him, it was necessary to show that
the articles furnished as the consideration of the bill were
necessaries.
In Reeve's Domestic Relations, 229, 230, and in 2 Dane Ab.
364, 365, the law is thus stated : That an infant is not bound
by any express contract for necessaries to the extent of such
contract, but is bound only on an implied contract to pay the
amount of their value to him. That when the instrument
given by him as security for payment is such that, by the rules
of law, the consideration cannot be inquired into, it is void
and not merely voidable. That whenever the instrument is
such that the consideration thereof may be inquired into, he
is liable thereon for the true value of the articles for which it
76 LAW OP CONTRACTS.
was given. This last proposition was also advanced by Chief
Justice Shaw in Stone v. Dennison, 13 Pick. 6, 7. And in
Earle v. Reed, 10 Met. 387, it was decided that a negotiable
note given by an infant was not void in the promisee's hands,
but that he might recover thereon of the infant as much as
the necessariee for which it was given were reasonably worth ;
the consideration of a negotiable note being open to inquiry
when sued by the promisee. A like decision was made in
Bradley v. Pratt, 23 Verm. 378, where the full amount of the
note was recovered ; it being proved, or not denied, that the
necessaries for which it was given were worth that amount.
On the same ground, as said by Mr. Dane (supra) an action
might be maintained against an infant on a note not negotia-
ble, or a negotiable note negotiated after it was dishonored.
Whoever shall examine the foregoing forty pages, will be
impressed with the truth of the remark of Mr. Justice
Thomas, in 1 Gray, 456, that " there is no subject, perhaps,
on which there has been more apparent conflict of opinion
than upon the effect to be given to the contracts of infants.
Especially is this so upon the questions what contracts are
obligatory, what voidable, what absolutely void, and how far
the execution of the contract and the enjoyment of its benefits
by the infant affect his power to rescind and recover back the
consideration paid, in cases where he is unable or does not
offer to restore what he has received, or its equivalent, or
where, from the nature of the case, such restoration is imprac-
ticable." There has been, however, for half a century at least,
a disposition and a practical effort of courts to harmonize and
improve the law on these points, and much improvement has
been effected. Still, it must be admitted that the law of in-
fancy is not yet a satisfactorily consistent and symmetrically
compacted system.
NON COMPOTES MENTIS. 77
2. Non Compotes 3Ientis.
By non compotes mentis are here meant all persons (except
drunkards) of such mental incapacity as disables them to
make a valid contract, though they may not be included in
either of Lord Coke's different classes (Co. Lit. 247, a.)
spoken of in the introduction to Stock's treatise on the Law
of Non Compotes Mentis.
Idiots, lunatics, &c., were always held incapable of making
contracts. Finch, 102, 103. Phillips on Lunacy, 1. But
from the time of Edward the Third, until recently, it was held
that a person non sancs memorice, though afterwards restored
to his right mind, should not be permitted to allege his own
insanity in order to avoid his grant or other agreement. This
is the legal meaning of the phrase, " a man shall not be al-
lowed to stultify himself." BJackstone relates the progress of
" this notion " (as he calls it) and refers to most of the ancient
cases that support it ; and they deserve attention as legal
curiosities, {a) This notion, however, except as it affects real
actions, is now thoroughly exploded, and the law restored to
its original state ; for in the reign of Edward the First, the
adjudications of the English courts were not blemished by
the absurdities which prevailed on this point during some of
the subsequent reigns. See 1 Story on Eq. §§ 223-225. 1
Ridgeway P. C. 549, 550.
This doctrine was denied by Fitzherbert, (b) and was as-
sailed with great force in the arguments of counsel in the case
of Thompson v. Leach, (c) which was carried by writ of
error from the Court of Common Pleas to the King's Bench,
and thence to the House of Lords. In the argument before the
court of last resort, counsel said: "'Tis a rule unaccount-
able that a man shall not be able to excuse himself by the
visitation of heaven, when he may plead duress from men, to
avoid his own act." (d) And VVilmot, J., in delivering an
opinion on a commission of errors, in 1762, used nearly the
(a) 2 Bl. Com. 295. (6) Nat. Brev. 202.
(c) 3 Mod. 296, 1 Show. 296, 2 Vent. 198, Show. P. C. 150.
Id) Show. P. C. 154.
78 LATV OF CONTRACTS.
same language, and denied the rale that " a natural disability,
which is the act of God, is no defence," and declared that the
reason given for it in the books, namely, « that a man cannot
know what he did when he was mad," was wholly unintelli-
gible ; "for what inconsistency," he asks, " is there in saying
he does not know he ever did such an act, but if he did, he
■was mad when he did it ? " (a)
In Yates v. Boen, (b) in debt on articles, non est factum
was pleaded, and evidence received of the defendant's mental
incapacity. This was the decision of a single judge, at nisi
prius, and has been overlooked by several writers who have
treated of this subject. It is now, however, recognized as
sound law, and is introduced into the modern books, (c)
There are other cases in which the same doctrine has been
held ; and in 1826, Littledale, J., said : " There is no doubt
that a deed, bond, or other specialty, may be avoided by a
plea of lunacy, if at the time it was executed the contracting
party was non compos mentis:'' [d) The law has been held in
the same way, by the court in Connecticut ; (e) by the circuit
court of the United States in the district of Connecticut, in
the case of Owen v. Mann ; (/) and by the courts in New
York and Massachusetts, {g)
If, however, a lunatic contract for necessaries suitable for
his state and degree, he will be held to pay for them ; and, in
an action to recover pay, his lunacy will not avail as a de-
fence. (A) The case in which this point was decided was that
of an executed contract, and the defendant had enjoyed the
use of the property. Chief Justice Abbott distinguished be-
tween executed and executory contracts by such persons ; but
(a) Evans v. Harrison, Wilmot, 155. (A) 2 Strange, 1104.
(c) Bac. Ab. Obligation, D. 1, (Guillim's ed.) 1 Chit. PI. (6th Amer. ed.)
511. 2 Saunders PI. & Ev. (2d ed.) 318.
{(I) 7 Dowl. & Ryl. 618.
(e) Webster v. Woodford, 3 Day, 90.
(/) September Term, 1808, cited in a note to Day's edition of Co. Lit. 247.
{(j) Rice V. Peet, 15 Johns. 503. Mitchell v. Kingman, 5 Pick. 431. See
also 1 Bland, 376, 11 Pick. 305, and 9 Foster, 106.
(A) Bagster v. Earl Portsmouth, 7 Dowl. & Ryl. 614 and 5 Barn. & Cres.
170. Sue Kendall v. May, 10 Allen, 59. Hallett v. Oakes, 1 Cush. 296.
NON COMPOTES MENTIS. 79
expressed no opinion as to the validity of the latter. The
real ground of this determination was that of equity and
justice. There had been no imposition ; the defendant had
received and used the plaintiff's property; he was not under
the legal custody of any other person ; and, though he was
insane, and therefore could not in strictness make a bind-
ing agreement, yet it was right that his property should be
applied to his support. It is said in Phillips on Lunacy,
17, that " the courts of law and equity imply a contract by
one non compos mentis, to pay for necessaries supplied to him ;
but if he is already sufficiently supplied with any goods, it
seems that he is not liable for a further supply of such goods,
although supplied without notice of the previous supply."
See 5 Beav. 329. 1 Y. & Col. Ch. 171. 2 CI. & Fin. 662,
663. 4 Barr, 375. 12 Barb. 237. There is a strong analogy
between the decisions in these cases, and the law as applied
to the agreements made by infants, who have not, in most in-
stances, a legal capacity to contract.
In Mannin v. Ball, Smith & Batty, 183, an action of eject-
ment upon the title of real estate conveyed by deed of a de-
ceased grantor was tried on the question whether the grantor
was of sound mind when he executed the deed. The jury
were instructed that " to constitute such unsoundness of mind
as should avoid a deed at law, the person executing such deed
must be incapable of understanding and acting in the ordinary
affairs of life ; that it was not necessary that he should be
without a glimmering of reason, but that it was sufficient if
he was incapable of understanding his own ordinary con-
cerns ; and that, as one test of such incapacity, the jury were
at liberty to consider whether he was capable of understand-
ing what he did by executing the deed in question, when its
general purport was fully explained to him." The jury found
a verdict for the plaintiff, on the ground that the grantor was
of unsound mind. On exceptions taken to the instructions,
and argued before the judges of the King's Bench in Ireland,
Chief Justice Bushe, in giving the opinion of the court, said
that " incapacity, at the time, to understand the act is the
criterion of unsoundness of mind." Judgment was rendered
80 LAW OF CONTRACTS.
for the plaintiff, which judgment was affirmed by the House
of Lords, 1 Dow & Clark, 380 and 3 Bligh N. S. 1.
There are decisions that A.'s unsoundness of mind will not
vacate his contract with B. if B. did not know of the un-
soundness, and took no advantage of A. ; and, especially
where the contract is executed in whole or in part, (a) But this
is not law in Massachusetts. Seaver v. Phelps, 11 Pick. 304.
The legal systems of every civilized community provide
some means of protecting those, who are deficient in mental
power, from the impositions of others, and from their own
improvidence and fatuity. By the Roman law, a tutor was
provided, without whose assent no act of theirs was bind-
ing. In England, the king is curator, and has the legal cus-
tody of idiots and lunatics, and exercises his superintendence
through the Lord Chancellor, (b) In the United States, a
guardian is appointed, and the statutes of the different states
make different provisions.
The contracts of persons of weak understandings, though
not non compotes mentis, are set aside in chancery, if deception
and imposition be practised upon them. But this is rather on
the ground of fraud than of mental incompetency, although
lighter facts will avoid a contract with such persons than with
those of common understanding; that is, an imposition, for
which a man of ordinary intellect would be entitled to no re-
dress, will induce a court of chancery to vacate an agreement
made with a person of feeble mental powers, because the
latter may be defrauded by artifices, against which common
men would guard, (c)
By the common law, a deed of land, made by a person non
compos, is voidable only, but not void ; [d) and, therefore, the
(a) Niell v. Morley, 9 Ves.478. Dane v. Kirkwall, 8 Car. & P. 6 79. Mol-
ton V. Camroux, 2 Exch. 487 and 4 Exch. 17. Beavan v. McDonnell, 9 Exch.
309. Carr v. Holliday, 5 Ired. Eq. 167. Beals v. See, 10 Barr, 56. 2 Kent
Com. (11th ed.) 583. Smith on Contracts, (4th Amer. ed.) 328-335. Stock
on Non Compotes, 25.
(6) See Bac. Ab. Idiots and Lunatics. 1 Bl. Com. 315.
(c) 3 Wooddeson, 453. See Blachford v. Christian, 1 Knapp, 73.
(rf) 2 Bl. Com. 245. Breckenrid^re v. Ormsby, 1 J. J. Marsh. 245. Wait
V. Maxwell, 5 Pick. 217. Allis v. Bilhngs, 6 Met. 415. Shelford on Luna-
tics, 255.
DRUNKARDS. 81
deed of such a person conveys a seizin. In some states of
the Union, the deeds of persons Twn compotes mentis^ made
after they are put under guardianship, are declared by statute
to be utterly void.
As to real actions, it seems that a grantor cannot even yet,
in England, maintain a suit to recover land conveyed by him
while non compos mentis, (a) Aliter in the United States.
Bensell v. Chancellor, 5 Whart. 371. Allis v. Billings, 6 Met.
415. Rogers v. Walker, 6 Barr, 371. Gibson v. Soper, 6
Gray, 279.
Contracts made during a lucid interval are valid, {b)
3. Drunkards.
It was formerly held that an agreement, made by a party
while absolutely drunk, should bind him in law ; and that it
should not be set aside in chancery, unless he were made
drunk by the other party, or by his contrivance. If a positive
fraud were practised on the party while drunk, the agreement
would be vacated on that ground, (c) But, on the principles
of natural law, as expounded by the most approved writers,
and on the principles of common law, as usually applied, such
a degree of intoxication as deprives a party of his reason
should avoid any engagement into which he may enter during
his mental incompetency. " Yet the merriment of a cheerful
cup," says Puffendorf, "which rather revives the spirits than
stupefies the reason, is no hindrance to the contracting of just
obligations." {d)
Lord EUenborough, at nisi prius, held in two cases, that
an agreement signed by a party while in a state of complete
(a) See this point discussed, 1 Powell on Con. 9, 29. Stearns on Keal
Actions, 184, note.
(6) 1 Dow, 177. 4 Conn. 203. 13 Wis. 425.
(c) 1 Powell on Con. 29. Newland on Con. 365. Bui. N. P. 172.
1 Saunders PL & Ev. (2d ed.) 976.
{d) Book iii. chap. 6, § 4. See also Vitriarii Institutiones, Hb. ii. chap. 11,
§§ 7, 8. Gisborne's Mor. Philos. (2d ed.) 176, 177. Wade v. Colvert, 2 Rep.
Const. Ct. (S. C.) 27. Burroughs v. Richman, 1 Green (N.J.) 233. Arnold
V. Hickman, 6 Munf. 15.
6
82 LAW OF CONTRACTS.
intoxication, was a nullity, as he " had no agreeing mind ;"(a)
and such is now considered to be the English law by the
latest writers. Bayley, J., strongly intimates the same doc-
trine, (b) The American cases conform to this view of the
matter ; (c) and this is the present doctrine also of the courts
of chancery, (d) Such also is the law of Scotland, (e) and
of France. (/)
If a person, while in a state of total drunkenness, makes
an agreement for the purchase of goods and takes them, and
afterwards, when his reason returns, uses them as his own,
there can be no doubt but that he may be compelled to pay
for them. His subsequent conduct would be an adoption of
the original agreement, or an implied contract would be
raised by the law from the time of his thus appropriating the
goods, (g-)
As drunkenness is an intermittent disability, it will rarely
happen that necessaries furnished to a man while drunk will
be expended before he becomes sober. But if such an in-
stance should occur, the same principle which was applied in
the case of Earl Portsmouth (a lunatic), would probably be
adopted by the courts ; and the party held to pay, on the
ground of equity and justice, for necessary supplies to him-
self and family.
4. Married Women.
By the common law, a married woman has, in general, no
legal capacity to make an obligatory contract. In legal con-
templation, she has, for most purposes, no separate existence
(a) Pitt r. Smith, 3 Campb. 33. Fenton v. Holloway, 1 Stark. R. 126.
Gore V. Gibson, 13 Mees. & Welsb. 623. Richardson v. Strong, 13 Ired. 106.
(6) 7 Dowl. & Ryl. 614.
(c) King's Ex'ors v. Bryant's Ex'ors, 2 Haywood, 394. Barrett v.
Buxton, 2 Aik. 167. 2 Rep. Const. Ct. (S. C.) 27. 2 Kent Com. (11th
ed.) 584, 585.
(rf) Cooke V. Clayworth, 18 Vesey, 15. 3 Chitty Com. and Manuf. Law,
55. 1 Wash. 164. 1 Hen. & Munf. 70. 2 Paige, 31.
(e) 2 Ersk. Inst. (ed. of 1828,) 593.
(/) 1 Poth. on Obi. (1st Amer. ed.) 26.
(g) See 1 Bibb, 168. 2 Har. & Johns. 423. 6 Muuf. 15. 1 Bailey, 343.
MARRIED WOMEN. 83
from her husband. They are one person only, and she has no
property with which she could be compelled to satisfy her en-
gagements, if she were competent to contract them ; as, upon
the marriage, her husband becomes the proprietor of all her
effects. This is the general principle ; it, however, is subject
to several exceptions, some of the more prominent of which
will be mentioned, {a)
The exceptions, or the instances in which a married woman
is regarded as sole, capable of making contracts, and liable
for the breach of them, have been introduced for her benefit,
no less than for the benefit of those who contract with her ; to
save her from want and suffering, as well as to provide legal
security for those who supply her with the means of subsist-
ence and comfort.
1. Where the legal existence of the husband is extinguished
or suspended, where he is civtliter mortuus, as where he is
transported for life under a judicial sentence, upon a convic-
tion of crime, his wife may make contracts, for the perform-
ance of which she will be personally responsible, and which
she may enforce as a feme sole, if they are violated by the
other contracting party.
In a note to 11 East, 304, and Co. Lit. 133, note, (209,) Mr.
Day, the American editor, says, that imprisonment for life, in
this country, would be attended with the same effect as per-
petual banishment in England. Unless, however, there be
some statute provision, (as, in New York, where persons sen-
tenced to imprisonment for life in the state prison are declared
to be " civilly dead to all intents and purposes,") it is not
known that such imprisonment, in the penitentiaries or other
prisons of the different states, would enable the prisoner's wife
to contract and render herself liable as a feme sole. Such
effect has not yet been given by the courts to imprisonment
for Ufe. (b)
In England, the exception is confined to banishment from
the realm, which is a commutation of punishment that is
made only in capital convictions which induce attainder ; an
effect not incident to such convictions in the United States.
(a) The law as to a wife's separate property is not here considered.
(6) See 2 Kent Com. (11th ed.) 147.
8-i LAW OP CONTRACTS.
In North Carolina a husband, in 1777, was required to take
the oath of allegiance to the state, and having refused so to
do, " he was compelled to leave the state under the penalty,
by law established, of incurring the crime of high treason if
he returned." Held, that his wife, who was left in the state,
was to all purposes a feme sole, and might sue and be sued,
and acquire and transfer property. Troughton v. Hill, 2
Haywood, 406. And in Connecticut, where a citizen of that
state left it, in the time of the revolutionary war, and joined
its enemies, it was held that his wife, who remained in the
state, had the rights of a feme sole while he was absent.
Cornwall v. Hoyt, 7 Conn. 420. See also fright v. Wright,
2 Desaus. 244.
2. If the husband entered into religion, the wife might for-
merly be treated as a feme sole. 1 Bl. Com. 132. Co. Lit.
132. Clancy on Husb. & Wife, 210.
3. Another exception, in former times, was the voluntary
abjuration [a) of the realm and departure from it by the
(a) There is, iu England, no such thing as abjuration of the realm, in any
legal sense, or with any legal effect, since the statute of 21 James I. c. 28.
Abjuration was a sworn banishment, or an oath taken to forsake the realm
forever. It was a commutation of punishment for a crime, and induced civil
death. The party who had committed a felony might flee to a church or
churchyard, before he was. apprehended, and could not be taken thence to be
tried for his offence. But upon a confession of his offence, before the proper
officer, he was admitted to his oath to abjure or forsake the realm within forty
days. As this state of things was found often to operate only as a pei-petual
confinement to some sanctuary, the statute above mentioned abolished the
privilege of sanctuary, and this abjuration thereupon ceased. That there
ever was anything of this sort in any part of the United States, nobody will
pretend. Nor will any lawyer suppose that the courts in England would re-
gard the wife of an emigrant, who is naturalized in this country, and has
abjured his allegiance to the British throne, as a feme sole, for any purpose.
The whole course of authorities shows the contrary. See Staunf. P. C. Book
ii. c. 40. 2 Inst. 629. 4 Bl. Com. c. 26.
In the Mirror, c. i. § 13, is this passage : " In the right of offenders, who
by mischance fall into an offence mortal out of sanctuary, and for true re-
pentance run to monasteries, and commonly confess themselves sorrowful, and
repent ; such offenders, being of good fame, if they require tuition of the
churcli. King Henry II., at Clarendon, granted unto them, that they should
be defended by the church for the space of forty days ; and ordained that the
MARRIED WOMEN. ' 85
husband. In the three instances above mentioned, the hus-
band is regarded as civiliter mortuus.
Although it is not known that the courts of our country
have now any authority to pass a sentence of banishment or
transportation, as we have no extra-territorial provinces, yet
punishment of death and other lighter punishments are some-
times suspended or commuted, on condition that the convict
leave the country, either for a limited time or forever. In
such instances, if the husband leave the United States, the
principle which is applied in cases of peremptory banishment
in England might perhaps be applicable here.
If, however, the punishment be suspended or commuted, on
condition that the convict merely leave the state where the
towns should defend such flyers for the whole forty days, and send them to the
coroner, at the coroner's view. It is in the election of the offender to yield
to the law, or to acknowledge his offence to the coroners, and to the people,
and to waive the law ; and if he yield himself to be tried by law, he is to be
sent to jail, and to wait for either acquittal or condemnation. And if he con-
fess a mortal offence, and desire to depart the realm, without desiring the
tuition of the church, he is to go from the end of the sanctuary ungirt, in pure
sackcloth, and there swear that he will keep the straight way to such a port,
or such a passage, which he hath chosen, and will stay in no parts two nights
toffether, until that for this mortal offence, which he hath confessed in the
hearino- of the people, he hath avoided the realm, never to return, during the
king's life, without leave ; so God him help and the holy evangelists ; and
afterwards let him take the sign of the cross and carry the same ; and the
same is as much as if he were in the protection of the church." Britton gives
substantially the same description of this antiquated proceeding. Kelham's
Britton, c. 16. By statute 35 Eliz. c. 2, Popish recusants were required upon
their corporal oath to abjure the realm of England, and all other the Queen's
majesty's dominions forever, and thereupon to depart, at such haven and port,
and at such time, as should be in that behalf assigned and appointed by the
officers before whom the oath was taken. As nothing like this ever existed
in this country, of course the incidents and effects of abjuration, whether
upon the offender or his connexions, have no place in our laws. Hence it is
incorrectly said, as it sometimes has been, that when a husband deserts his
wife and removes from the country or state of his residence, not intending to
return, this amounts to an abj uration oC his former state or country; although it
mav have the same effect which abjuration formerly had, on his wife's rights
and liabilities.
This note is part of an article first published in the U. S. Law Intelligencer,
Vol.1, pp. 166,167.
86 LAW OP CONTRACTS.
offence was committed, and he remain in the United States,
or vohintarily leave them, his wife would probably not be con-
sidered as a feme sole for the purpose of contracting.
4. Temporary transportation or banishment, though not
civil death of the husband, yet entitles the wife to sue as a
feme sole during his absence, (a) On the husband's return
from transportation, his marital rights revive, (b)
5. By the custom of London, a feme covert trader, if her
husband does not intermeddle in the trading, is regarded as a
feme sole. She may sue and be sued, and though, for the
sake of conformity, her husband must join and be joined
nominally in suits by and against her, yet the judgment, when
recovered, does not affect him. If the judgment is against
her, he is not liable to respond to it. (c)
6. Another exception to the rule of the common law on
this subject is made in this country, in cases of the husband's
desertion of his wife. In Massachusetts this exception is re-
stricted to cases of absolute and complete desertion by the
husband's continued absence from the state, and a voluntary
abandonment of his wife, with intent to renounce, de facto,
the marital relation, and leave her to act as a feme sole.
Gregory v. Pierce, 4 Met. 478. See also Robinson v. Rey-
nolds, 1 Aik. 174. Ayer v. Warren, 47 Maine, 230, and
Ames V. Chew, 5 Met. 320. A less restricted kind of desertion
seems to have been held sufficient in Rhea v. Rhenner, 1 Pe-
ters, 105. That, however, was a case in equity.
An English wife, who was deserted by her husband in Eng-
land for several years without any means of support left by
him, and without any correspondence with him, came to this
country and maintained herself here for five years, as a single
woman. It was decided that she might maintain an action
(a) LofTt, 142. Co. Lit. 133, a. note 209. 2 Bright on Husb. & Wifo, 70.
Clancy on Husb. & Wife, 63.
(b) Spooner v. Brewster, 2 Car. & P. 35. Carrol i". Bleneow, 4 Esp. R. 27.
(r) Langharai;. Bewett, Cro. Car. 68 and Hetley, 9. Anon. 10 Mod. 6.
Caudell v. Shaw, 4 T. 11. 361. Beard v. Webb, 2 Bos. & Pul. 93. See the
law of Pennsylvania, on this subject, 6 Watts & Serg. 348, 2 Serg. & R.
189; of South CaroHna, 2 Bay, 162, 2 Nott & McCord, 242, 4 McCord,
413 ; of Rhode Island, 5 Allen, 208.
MAERIED WOMEN. 87
as a feme sole. Gregory v. Paul, 15 Mass. 31. See also
McArthur v. Bloom, 2 Duer, 151. The same was decided in
the case of the wife of a citizen of another state, after she had
been driven from his house by his cruelty, without any means
of support, and had resided in this state many years, and sup-
ported herself as a single woman. Abbot v. Bayley, 6 Pick.
89. The same decisions would undoubtedly be now made in
case of the complete desertion of a wife by a native citizen
of the state. This is a necessary inference from the case of
Gregory v. Pierce, before cited.
It is not certain that, by the present law of England, a hus-
band's desertion of his wife, or his voluntary absence from her,
affects her rights or liabilities. During the last seventy years
the courts have been disposed to narrow the grounds on which
the rights and liabilities of femes sole were formerly transferred
to married women.
Until recently it was supposed that the wife of an alien
enemy, who could not come into England, was subject to the
liabihties and entitled to the rights of a feme sole. 1 Ld.
Raym. 147 and Comb. 402. 2 Bright on Husb. & Wife, 74.
Broom on Parties, 76. But the contrary was decided in
1856, in the case of DeWahl v. Braune, 1 Hurlst. & Norm.
178.
It was held by Lord Kenyon, in 2 Esp. R. 554, 587, that
the wife of a foreigner, who left her in England, was liable
as a feme sole. This was denied and the contrary adjudged,
in Kay v. Duchess de Pienne, 3 Campb. 123. In that case.
Lord Ellenborough is reported to have expressed an opinion
that the wife of an alien who had never been in England
might be sued as a feme sole. But Baron Parke, in 2 JNIees.
& Welsh. 64, 65, said, " There must have been some misappre-
hension of what Lord Ellenborough said in that case, or his
Lordship must have been in error ; that the law does not
make " a wife liable as a feme sole " merely because her
husband is an alien and continually abroad." And an Eng-
lishman's absence from his wife, and his residence out of
England, do not render her liable as a feme sole. Marsh
V. Hutchinson, 2 Bos. & Pul. 226. Farrer v. Countess
88 LAW OP CONTRACTS.
Granard, 1 New Kep. 80. Boggett v. Frier, 11 East, 301.
Williamson v. Dawes, 9 Bing. 292 and 2 Moore & Scott, 352.
2 Roper on Husb. & Wife, 125, 126. Bell on Husb. & Wife,
35. 2 Leigh's Nisi Prius, 1101-1104. See also Stretton v.
Busnash, 1 Bing. N. R. 139 and Barden v. Keverberg, 2 Mees.
& Welsh. 61. The English law is followed in South Car-
olina. Boyce v. Owens, 1 Hill, (S. C.) 8. (a)
A married woman, sued for goods sold to her, is not estop-
ped to set up the defence of coverture by reason of her having
previously to the sale executed deeds and sued out writs and
carried on actions, denominating herself as a widow. Daven-
port V. Nelson, 4 Campb. 26. And where such woman ex-
ecuted a warranty deed of her real estate by her maiden
name, dated before the time of her marriage, for a fraudulent
purpose, and without disclosing her marriage, it was decided
that she did not estop herself and her heirs to set up her title
to the land, as against her grantee, or against a purchaser
from him without notice. Lowell v. Daniels, 2 Gray, 161.
See also Concord Bank v. Bellis, 10 Cush. 276.
It is the law of most of the states of the Union, that a mar-
ried woman may convey her real estate and release dower in
the estate of her husband, by joining in a deed thereof with
him. 1 Washburn on Real Property, (1st ed.) 284, (2d ed.)
278, 279.
7. If husband and wife are divorced a mensa et thoro,
though the marriage is not dissolved, and they may lawfully
live together again as soon as they agree so to do, yet, while
they are separated, the wife, for some purposes, is regarded as
a feme sole. She may sue her husband for alimony decreed
to her by the court, upon the divorce ; and, of course, may
maintain an action against an officer, in her own name only,
for any default in executing process to enforce the allowance
(a) By an English statute, (20 and 21 Victoria, c. 85,) it is pi'ovided that a
wife, deserted by her husband, may apply to a police magistrate for an order
to protect any money or property that she may acquire by her own industry,
&c., after being deserted ; and that, after obtaining such order, such earnings
and property shall belong to her as if she were a feme sole. See an action
by a wife under this statute. Thomas v. Head, 2 Fost. & Finl. 88.
MARRIED WOMEN. 89
of alimony, (a) In a case reported by Moore, (b) it is said,
the court seemed to suppose she may sue alone on a cause of
action against a third person. And, in the ecclesiastical
courts, which proceed according to the rules of the civil law,
by which husband and wife are not regarded as one person,
suits are constantly brought by the wife alone, after a divorce
a mensa et thoro, for personal injuries, (c)
The court in Massachusetts has decided that after such
partial divorce, the wife can contract debts and sue and be
sued as a feme sole, (d) The contrary, however, has been
decided by the court of King's Bench, (e)
There were several decisions in the time of Lord Mansfield,
that after a voluntary separation of husband and wife under
articles of agreement, by which a separate maintenance was
secured to the wife, she might contract debts and be sued as
a feme sole. Mr. Powell (/) strongly contested this doctrine ;
and in the case of Marshall v. Rutton, (g-) which was argued
before all the judges of England, it was unanimously over-
ruled. But those overruled cases have been defended in Reeve
Dom. Rel. 99 Sf seq. and 1 Dane Ab. 339, 361. See also
Ayer v. Warren, 47 Maine, 224 Sf seq.
If a husband be absent seven years unheard from, the wife
may be treated as a feme sole, and may contract and be sued
as such, although her husband may in fact be alive and within
the country. The legal presumption in that case is that he
is dead, [h)
(a) Howard v. Howard, 15 Mass. Kep. 196. Prather v. Clarke, 1 Const.
Eep. (S. C.) 453. Contra in Wisconsin. Barber v. Barber, 1 Chand. 280.
(J) Stephens v. Tot, Mo. 665. But in Croke's report of this case, no such
intimation of the court is given. Cro. Eliz. 908.
(c) Motteram v. Motteram, 3 Bulst. 264. Chamberlaine v. Hewson, 5 Mod.
71 and 1 Ld. Kaym. 73. 2 Dane Ab. 307. Reeve Dom. Rel. 205.
{d) Dean v. Richmond, 5 Pick. 461. Pierce v. Burnham, 4 Met. 303.
(e) Lewis v. Lee, 3 Barn. & Cres. 291 and 5 Dowl. & Ryl. 98. Faithorne
V. Blaquire, 6 M. & S. 73.
(/) 1 Powell on Con. 77 §• seq.
\g) 8 T. R. 545.
\li) Doe V. Jesson, 6 East, 85. Doe v. Deakin, 4 B. & Aid. 434. King
V. Paddock, 18 Johns. 141. 1 Greenl. Ev. § 41. Roscoe on Ev. (10th
ed.) 34. Loring v. Steineman, 1 Met. 211. See 12 Allen, 133.
90 LAW OF CONTRACTS.
Subject to these exceptions, and to such others as may be
made by various local statutes, husband and wife are regarded
in law as one person, and the wife's separate existence, so far at
least as the power of making contracts is concerned, is merged
and discontinued. She can acquire no property, and is there-
fore liable to pay no demand. Any promise made by her is
void, and so is any deed executed by her, except in conjunction
with her husband, (a) If a third person give or bequeath any-
thing to her, it becomes the husband's ; and any promise made
to the wife can be enforced only by the husband, and for his
benefit.
A gift by a husband to his wife, though a nullity in law,
will sometimes be recognized and enforced in equity, if the
rights of his creditors are not thereby prejudiced, (b)
A widow cannot recover of her husband's executors or ad-
ministrators a promissory note given to her by him during
coverture, though it was given for money which was hers be-
fore marriage. Sweat v. Hall, 8 Verm. 187. Jackson v. Parks,
10 Cush. 550. And see 12 AUen, 104.
But at law, in Massachusetts, where the husband, on the
sale of his wife's real estate, took from the purchaser a note
and mortgage to himself and wife jointly, and died without
collecting the note or bringing an action to foreclose the mort-
gage, it was decided that they survived to the wife. Draper
V. Jackson, 16 Mass. 480, 486. Jackson, J., there said that the
husband, by taking security in this form, is understood to as-
sent and intend that the wife shall have some peculiar benefit
from it; otherwise he would have taken it in his own name
alone ; that he might have afterwards changed his mind, re-
leased the demand, or brought an action in his own name,
and upon recovering the money might have retained it to his
own use. But as he did not reduce it to possession, he was
considered as assenting that it should continue to be the
(a) See Colcord v. Swan, 7 Mass. 291. Porter v. Bradley, 7 R. I. 538. 2
Kent Com. (11th ed.) 1G3.
(/>) 2 Story on Fa[. § 1372. 2 Kent Com. (Uth ed.) 154. TuUis v. Frid-
ley, 9 Min. 79. Liles v. Fleming, 1 Dev. Eq. Rep. 187. 1 Bright on Husb.
& Wife, 33. Ward v. Crotty, 4 Met. (Ky.) 59.
MARRIED WOMEN. 91
property of the wife. See also 9 Gray, 66, 70. So after the
husband's death, his wife was held entitled to the full value
of shares which she owned before marriage, in a bank whose
charter afterwards expired ; the husband having, as authorized
by law, subscribed half the number of her shares in a new
bank, in her name, and having refused to receive the balance
of her old shares in money, saying that it was not his, but his
wife's. Stanwood v. Stanwood, 17 Mass. 57. The like de-
cision was made where the wife lent the interest of money
accruing on a promissory note due to her before marriage, and
took the borrower's note therefor, payable to herself, according
to the wishes of her husband, who often declared that the
money, as well as the interest thereon, was her separate prop-
erty, and that he did not claim or receive any part of it to his
own use. Phelps v. Phelps, 20 Pick. 556. In Adams v.
Brackett, 5 Met. 280, the husband bought shares in a bank,
saying that they were his wife's, and a certificate was issued
to her as owner, and he never treated them as his, but always
as hers ; and in Fisk v. Cushman, 6 Cush. 20, the husband de-
posited money in a savings bank in the name and to the credit
of his wife, saying that the money was hers, and delivering
the deposit book to her, and never withdrawing or transferring
the deposit, but keeping a separate one, in the same bank, in
his own name. In both these cases, the gift was supported,
after the husband's death, his intention to make a gift being
manifest, and the act of giving being complete. In all the
above cases, and in Ames v. Chew, 5 Met. 320, it was dis-
tinctly stated that the gifts were valid as against the hus-
band's heir and legatees, though not against his creditors.
Some of the inconveniences and hardships of the common
law, as they affect married women, are removed or mitigated
by a court of chancery ; but, of this branch of the subject it
is not purposed to treat.
Great changes, which cannot be here set forth, have been
made by state legislatures within a few years, respecting the
legal rights and powers of married women, (a)
(a) See a collection of the statutes of thirty states of the Union on this
subject, in 1 Parsons on Con. (3d ed.) 306 &,• seq., (5th ed.) 371 ^^ seq.
92 LAW OP CONTRACTS.
5. Outlaws and Persons Attainted.
The process by which, according to the common law, a per-
son is outlawed in a criminal prosecution, or civil suit, may be
found described in the books cited in the margin, [a)
The incidents of outlawry, so far as the outlaw's power of
making contracts is in question, are, that he cannot, while the
judgment of outlawry remains in force, maintain any suit in
his own right, so that he is in effect disabled to contract for
his own benefit. A bond, note, or other promise, given to
him, is of no present value, for he cannot enforce the collec-
tion or performance. The other party may plead the plaintiff's
disability, and deprive him of all remedy ; which shows that
there is no present legal obligation or right resulting from the
contract. He cannot hold and enjoy any property that is given
or devised to him ; it is forfeited to the king, in England, and
was forfeited to the commonwealth here, {b) Outlaws, how-
ever, may be sued on their own contracts, and for other causes
of action. " Let them be answerable to all, and none to
them," is the language of the common law. (c) They may
bring actions en autre droit, as executors, administrators, &c.,
because the persons whom they represent have the privilege
of law, and outlawry is no objection to their representation, [d)
Attainder includes in its meaning all the disabilities that
(a) Bac. Ab. Outlawry. 4 Bl. Com. c. 24. 3 ib. c. 19. Appx. No. iii.
Syst. PI. 331 Sf seq. 1 Chit. Crim. Law, 347 fy seq. The process of outlawry
was abolished in Massachusetts, in June, 1831. It was obsolete long before.
Yet, until that time, a statute was in force, prescribing the proceedings by
which persons charged with criminal offences before the supreme court, by
indictment or presentment of a grand jury, and who absconded, &c., might
be pursued to outlawry, and declaring the disabilities thereby incurred by the
offender. Statute of 1782, c. 19. The only case in which a person could be
pursued to outlawry in a civil proceeding was that of a collector of taxes,
who should " abscond or secrete himself for the space of one month, having
assessments in his hands unsettled." Statute of 1785, c. 46, § 15. The in-
cidents of outlawry, in this case, were not mentioned in the statute. Doubt-
less they were those of the common law.
(i) Bac. Ab. Outlawry. Mass. St. of 1782, c. 19.
(c) Britten, c. 12, § 8. Cro. Jac. 426. Noy, 1.
Id) Co. Lit. 128. Gilb. C. P. 197. Finch, 27, 168.
OUTLAWS AND PERSONS ATTAINTED. 93
follow a capital sentence. When a person is sentenced for a
capital offence, he is immediately, by the operation of the
common law of England, placed in a state of attainder. It
does not follow upon conviction merely ; for judgment may
be an-ested. So, upon a judgment of outlawry, in case of a
charge of a capital offence, the defendant becomes attainted ;
and so of acts of parliament to attaint particular persons of
treason or felony.
The incidents of attainder, at the common law, may be
learned from Blackstone (a) and Chitty. (6) The only point,
that concerns the present subject, is the capacity of the at-
tainted person as to contracts. And in this respect he stands
on the same ground as a person outlawed in a criminal proc-
ess. Indeed, a judgment of outlawry, as has been just stated,
puts the defendant into a state of attainder, if it be in a crim-
inal prosecution and for a capital offence.
The person attainted can maintain no suit against another,
and therefore cannot contract for his own benefit, (c) He is
liable to the suits of others, though this liability is of no value
to them, nor injury to him, unless he is pardoned, (d) Upon
the reversal of a judgment of outlawry, and the pardon of a
person attainted, the party is restored to his law. His com-
petency to contract, and his right to enforce contracts by suit,
revive. And so of the reversal of an attainder by parlia-
ment, (e)
In the New England states, no forfeiture of property, nor
disability to contract and sue, follows the conviction and
sentence of a capital or other offence ; and this, probably, is
equally true of all the states in the Union, except it may be by
statute. In New York, no conviction works corruption of
blood, or forfeiture of property, except in cases of treason. (/)
The Constitution of the United States (g) confers on congress
(a) 4 Bl. Com. 380. 2 ib. 254.
(b) 1 Chit. Crim. Law, 723,
(c) See Bullock v. Dodds, 2 B. & Aid. 258.
(d) Cro. Eliz. dlQ. 1 Wils. 217. Foster's Crown Law, 61.
(e) Bac. Ab. Pardon. H. 10 Johns. 232, 483. 3 Johns. Cas. 333. 2
Hawk. c. 37.
(/) 10 Johns. 233. (g) Art. iii. § 3.
94 LAW OF CONTRACTS.
the power of declaring the punishment of treason ; but de-
clares, that " no attainder of treason shall work corruption
of blood, or forfeiture, except during the life of the person at-
tainted." The punishment of treason, by the act of congress,
is death without any forfeiture of property, {a) By the Con-
stitution of the United States, (b) congress is prohibited from
passing any bill of attainder ; and the same prohibition is also
laid upon the legislatures of the several states, (c) The
twenty-fifth article of the Bill of Rights, prefixed to the con-
stitution of Massachusetts, had previously announced that
" no subject ought, in any case, or in any time, to be declared
guilty of treason or felony by the legislature."
6. Persons Excommunicated.
By the English law, persons excommunicated were formerly
subject to some of the same disabilities which attach to out-
laws and persons attainted. Though they were responsible
on their contracts, they could maintain no action against per-
sons contracting with them, nor even sue en autre droit.
This and other disabilities ceased, however, when the excom-
municated persons were assoiled by the proper ecclesiastical
authority, {d)
By a modern English statute, (e) the causes of excommu-
nication by the ecclesiastical courts are reduced in number,
and it is enacted that no civil incapacity shall be incurred by
that punishment, when inflicted as a spiritual censure for an
offence of ecclesiastical cognizance. (/) Excommunication
in this country produces no legal disability. It is merely an
ecclesiastical censure, of which the law takes no notice.
7. Aliens.
An alien, whether enemy or friend, cannot hold lands, which
come to him by purchase, nor will land descend to him. But
(a) 1 U. S. Laws (Story's ed.) 83. (Peters' ed.) 112.
(6) Art. i. § 9. (c) Art. i. § 10.
(d) See Co. Lit. 133, 134. Syst. PI. 11. 3 Bl. Com. 102. Bac. Ab. Ex-
communication, (e) 51 Geo. IIL c. 127.
(/) See 1 Haggard's Consistory Rep. Appx. 24-26, the statute at large.
ALIENS. SPENDTHEIFTS. 95
no one except the sovereign power, the king in England, the
commonwealth here, can disturb him in his title or enjoyment.
By an inquest, the sovereign power may seize an alien's lands,
and vest the title in itself, (a)
An alien enemy, that is, the subject of a country with which
we are at war, can make no contract with our citizens during
the continuance of war, unless he reside here under the license
and protection of the constituted authorities of the United
States.
The principle on which this disability rests, is the impolicy
and danger of permitting an enemy to recover or obtain from
our citizens money or other property, which may diminish the
resources of the country for defence, and convert them to pur-
poses injurious to our interests. Contracts made with an
alien enemy during war are regarded as illegal, and can never
be enforced against our citizens. But if made before the war,
they are suspended only while the war continues, and may be
enforced in our courts on the return of peace, (b)
At common law, and by the law of nations, there seems to
be an exception to this rule, in the case of ransom bills, &c.
But by English statutes, contracts for ransoming captured
property are forbidden and declared void, (c)
8. Sj^endthrifts.
In Massachusetts and New Hampshire it is provided by
statute, that persons who are put under guardianship for wast-
ing their estate by excessive drinking, gaming, idleness, or de-
bauchery of any kind, can make no valid contract for the pay-
ment of money, or the sale of personal or real property, nor
any valid gift, after notice has been given to them of the
application to the probate court, to have guardians appointed
over them, and the order of notice has been filed in the office
(a) Wooddeson, Lect. xiv. 1 Bl. Com. 392. 2 ib. 252, 297. 1 Johns. Cas.
899. 3 ib. 109. 1 Mass. 256. 8 ib. 445. 12 ib. 143.
(6) See 7 Taunt. 439, (Amer ed.) and note. 10 Johns. 69, 183. Bac.
Ab. Alien.
(c) See 3 Bm-. 1731. 2 Doug. 641-650. 8 T. R. 268. 2 Gallison, 325.
15 Johns. 6. 1 Kent Com. (11th ed.) 113.
96 LAW OF CONTRACTS.
of the register of deeds for the county where they may belong.
And see Revised Statutes of Maine, pp. 430, 433. See
Manson v. Felton, 13 Pick. 206. In McCrillis v. Bartlett, 8
N. Hamp. 569, it was held that the statute did not render
void a spendthrift's implied contracts for necessaries ; and that
money furnished to him for the purpose of defending against
the appointment of a guardian, where such defence might
reasonably be made, might be regarded as a necessary ex-
penditure.
9. Slaves.
"While slavery existed in the United States, the condition of
slaves here was analogous to that of the slaves of the an-
cients, the Greeks and Romans, and not that of the villeins of
feudal times. They were, generally speaking, not considered
as persons but as things. By the Roman law, slaves could
not take property by descent or purchase ; and, such in the
main, seems to have been the law of this country, (a) Thus,
a devise to a slave was void ; for, " it would be a solecism,"
said Taylor, J., " that the law should sanction or permit the
acquisition of property by those from whom it withholds that
protection, without which property is useless." " A slave
could bring no action. He could neither acquire nor transfer
property by descent or purchase." (b) No promise made to a
slave could be enforced by a court either of law or equity, (c)
A note given to a slave was void, and the master could not
recover it. (d) There were some modifications of these rigid
rules of the civil law, by usage and statutes, in the differ-
ent slave-holding states ; but these were the prevalent doc-
trines, (e)
(rt) Bynum v. Bostick, 4 Desaus. 267.
(b) Cunningham's Heirs v. Cunningham's Executors, Cam. & Norw. 356.
. (c) Beall V. Joseph. Hardin, 52. See also Glen v. Hodges, 9 Johns. 67,
where it was decided that a slave could not contract a debt.
(d) Gregg v. Thompson, 2 Rep. Const. Ct. (S. C.) 331.
(e) See Heineccius(Inst.) lib. i. tit. 3. ii.tit. 9. iii. tit. 18. Recitationes,
lib. i. tit. 5. XV. tit. i. § 178. xlv. tit. 3.
A slave might contract with his master respecting his manumission, and the
law enforced the agreement. 3 Bos. & Pul. 69. 7 Johns. 324. 2 Root, 364.
See also 9 Grattan, 708. Cobb on Slavery, 278-317,
SEAMEN. 97
See Stroud's Law relating to Slavery, and Kurd's two vol-
umes on Freedom and Bondage, published in 1858.
10. Seamen.
By a statute of the United States, passed on the 20th of
July, 1790, {a) it is provided that " every master or com-
mander of any ship or vessel bound from a port in the United
States to any foreign port, or of any ship or vessel of the
burden of fifty tons or upwards, bound from a port in one
state to a port in any other than an adjoining state, shall, be-
fore he proceed on such voyage, make an agreement in writ-
ing or in print, with every seaman or mariner on board such
ship or vessel (except such as shall be apprentice or servant to
himself or owners) declaring the voyage or voyages, term or
terms of time, for which such seaman or mariner shall be
shipped." And it was also therein provided that if the master
should carry out any seaman without such agreement being
first made and signed by the seamen and mariners, such sea-
man should not be bound by the regulations, nor subject to
the penalties and forfeitures contained in said statute. Under
this last provision it was held that if a seaman entered upon
a voyage without signing shipping articles, there was an im-
plied contract which bound him to remain with the ship until
the termination of the voyage. Jansen v. The Heinrich,
Crabbe, 226. See Ware (2d ed.) 448.
By another statute of the United States, passed on the 20th
of July, 1840 (&) all shipments of seamen made contrary to
the provisions therein contained, or contained in any other
statute of the United States, are declared void, and it is pro-
vided that any seaman, so shipped, may leave the service at
any time, and demand the highest rate of wages paid to any
seaman shipped for the voyage, or the sum agreed to be given
him at his shipment.
Questions have been often raised, whether shipping articles,
signed by seamen, described the voyage or voyages for which
(a) 1 U. S. Laws (Story's ed.) 133, (Peters' ed.) 104.
(&) 5 U. S. Laws (Peters' ed.) 395.
. 7
98 LAW OF CONTEACTS.
they shipped sufficiently to bind them. And if there is am-
biguity in the description, or it is susceptible of two construc-
tions, that which is most favorable to the seaman is adopted.
Crabbe, supra. Daveis, 407. Sprague's Decis. 300, 302.
Shipping articles for a voyage " from Philadelphia to Gib-
raltar, other ports in Europe or South America, and back to
Philadelphia " were held sufficient, and to authorize a voyage
directly from Gibraltar to South America, without proceeding
to any intermediate port in Europe, but not to a return from
South America to a European port. And a seaman was held
not to be justified in leaving the ship in South America un-
less he knew that a change in the voyage described in the
shipping articles had been resolved on and the ship was about
to sail to a port in Europe. Douglass v. Eyre, Gilpin, 147.
And where the voyage was described in the shipping articles
to be " from Philadelphia to South America, or any other port
or ports, backwards and forwards, when and where required,
and back to Philadelphia," the description was not such as to
avoid the contract, and that the master had not violated the
articles by proceeding from South America to Europe, and
that the seamen were not justified in leaving the ship for that
cause. Magee v. The Moss, Gilpin, 219. A voyage to a
port named, " or elsewhere for a market," was held by Wood-
bury, J., to be sufficiently definite, and to be binding on the
seamen. 1 Woodb. & M. 338. See Brown v. Jones, 2 Gal-
lison, 477, where the voyage was described as " from' Boston
to the Pacific, Indian, and Chinese Oceans, or elsewhere, on
a trading voyage, and from thence back to Boston." Story,
J., said " it would be an utter evasion of the statute to allow
such an indefinite expression as ' elsewhere ' to control or ex-
tend the meaning of the other certain description of the voy-
age, or to constitute, of itself, a sufficient description." And
the same was held in Ely v. Peck, 7 Conn. 242. See 1 Hagg.
Adm. Rep. 248, 347.
In the shipping articles of an English vessel, the voyage
was described to be from Liverpool to Savannah and any port
or ports of the United States, of the West Indies, and of
SEAMEN. 99
British North America, the term of service not to exceed
twelve months. Held, that the voyage intended was confined
to the ports on the eastern shore of the continent, and that
the articles did not authorize a voyage to San Francisco or
the northwest coast. The Ada, Daveis, 407.
A voyage was described to be " from Havre to New Or-
leans, and thence to one or more ports in Europe, and finally
back to a port of discharge in the United States, for a period
not exceeding twelve calendar months." Held, that there
were two restrictions, one of time the other of ports, and that
the seamen were not bound for twelve months, unless the ves-
sel went to the ports in the order described. Sprague's Decis.
485. The words " a voyage from Boston to Valparaiso or
other ports of the Pacific Ocean, at and from thence home
direct or via ports in East Indies or Europe " were held
not to describe the voyage with sufficient certainty, and not
to bind the seamen after arrival at Valparaiso. Sprague's
Decis. 300 and 2 Curtis, 301. An English seaman signed
shipping articles in England, which described the voyages to
be " from Liverpool to Calcutta, thence, if required, to any
ports or places in the Indian, Pacific and Atlantic Oceans,
and China and Eastern Seas, thence to a port for orders, and
to the continent of Europe, if required, and back to a final
port of discharge in the United Kingdom ; the term not to ex-
ceed three years." The vessel sailed from Liverpool to Cal-
cutta, and thence to Boston, where a seaman left her without
the master's consent, and there brought an action against the
master for the amount of wages which would have been due
to him if he had been there discharged. Defences, that the
plaintiff" had forfeited his wages by desertion, and that an
English statute provided that in a contract like this, no sea-
man should sue for wages in any court abroad, except in cases
of discharge or of danger to life. It was decided that the
voyage was not so described as to be binding by the English
law (as held in the case of The Westmoreland, 1 W. Rob.
Adm. Rep. 216) and judgment was rendered for the plaintiff".
Roberts v. Knights, 7 Allen, 449.
It was said by Story, J., (Brown v. Lull, 2 Sumner, 449,)
100 LAW OF CONTRACTS.
that shipping articles, in their common form, coincide with the
general principles of maritime law as to seamens' wages, and
that courts of admiralty jealously watch every deviation from
those principles, in the articles, as injurious to the rights of
seamen, and founded in an unconscionable inequality of
benefit between the parties ; that seamen are extravagant, in-
different to the future, and easily overreached ; and that those
courts consider them peculiarly entitled to their protection, and
are not confined to the mere dry and positive rules of the com-
mon law, but act, as far as their powers extend, upon the liberal
jurisprudence of courts of equity ; and when they find in ship-
ping articles any stipulation which derogates from the general
rights and privileges of seamen, they declare it void, unless
the nature and operation of such stipulation were fully and
fairly explained to the seamen, and additional compensation
is allowed to them, adequate to the restrictions and risks im-
posed on them by such stipulation. And he held that because
capture of a neutral ship does not dissolve the seamens' con-
tract for wages, and if she is restored, they are entitled to full
wages for the whole voyage, if they remained on board, or if,
being taken out, they were unable, without their own fault, to
rejoin the ship, therefore, the following clause in shipping ar-
ticles was void : " In case of the said vessel being taken or
lost in the course of said voyage, no wages shall be demanded
or received, except the advance wages received at the time of
entry on board ; and if the vessel shall be restrained for more
than thirty days at any one time, the wages shall cease dur-
ing such restraint." {a) And he cited the judgment of Lord
Stowell in the case of The Juliana, 2 Dodson, 507. In Har-
den V. Gordon, 2 Mason, 541, Story, J., had before decided
that a stipulation by seamen that they should pay for medical
advice, and for medicines, without any condition that there
should be a suitable medicine chest on board, was void, being
contrary to the policy of the eighth section of the statute (be-
fore mentioned) of July 20th 1790. In the case of The
Sarah Jane, 1 Blatchf. 66 Howland, 401, a stipulation that
('/) See also Seamen of Fair American v. Fair American and Captain,
Bee, 134. Swift v. Clark, 15 Mass. 173.
SEAMEN. 101
the seamen should prosecute their suits for wages in courts
of common law only (as it amounted to a waiver of their
lien upon the vessel) was void, unless it was proved that the
matter was clearly explained to them before they entered
into such stipulation, and that no prejudice to their rights
would be thereby incurred. And when the crew of a foreign
vessel, about to sail to this country, agreed that they would not
sue in any courts abroad, but would refer all disputes to the
courts of their own country, it was held that though this was
a lawful agreement, yet that the interests of justice required
it to be disregarded, when the voyage was broken up in an
American port by some other cause than the wreck of the
vessel, or where the seaman was discharged, or became
entitled to a discharge by reason of improper treatment.
Bucker v. Klorkgeter, Abbotts' Rep. 402. A stipulation in
shipping articles that seamen shall not demand their wages
until after the expiration of a certain time is void, if their
service is completed, or they are discharged, before such time
expires. The Cypress, 1 Blatchf. & Rowland, 83. See also
Ware (2d ed.) 514. Sprague's Decis. 199, 556. Olcott, 24.
2 Paine, 229. 3 Kent Com., Lecture xlvi.
A seaman does not forfeit his wages by leaving a vessel
that is dangerously unseaworthy, and which the master omits
to repair when she is in port ai)d he has a suitable opportu-
nity to do it. Savary v. Clements, 8 Gray, 155. When the
owners of a vessel are sued for the recovery by a seaman of
damages caused by the master's abuse in wounding him and
discharging him in a foreign port, the jury may allow the sea-
man wages up to the time when he had so recovered as to be
able to sail for home, and for such further time as was reason-
able for obtaining a passage and making a voyage home, and
the expenses of his board, and for nursing, medicine and med-
ical attendance until he had so recovered, and of his passage
home, although the time was longer than that occupied by the
voyage described in the shipping articles. Croucher v. Oak-
man, 3 Allen, 185.
When the prosecution of a voyage is rendered impossible
by any disaster to the vessel, the seamen are discharged from
102 LAW OP CONTRACTS.
the principal obligation to perform the voyage, but not from
the incidental obligation to render their best services for sav-
ing as much of the ship and cargo as is practicable. And by
the law of this country, seamen, in cases of shipwreck, are en-
titled to their full wages up to the time of the disaster, if by
their exertions enough of the freight and wreck is saved ;
and are also entitled to claim, according to the merit of their
services, an extra reward, beyond their wages, against the
property saved ; the old English rule, that freight is the only
fund against which wages can be claimed, having never been
adopted in the United States, and never having been the rule
of the maritime law. The Dawn, Daveis, 121. See Locke
V. Swan, 13 Mass. 76.
A custom of a port, that the advance wages of seamen due
under shipping articles, shall be paid to the shipping agent, to
be paid by him, for their benefit, to the keeper of the boarding-
house who brings them, is unreasonable and does not bind
them, though they know such custom when they sign the arti-
cles. Metcalf V. Weld, 14 Gray, 210.
By the fourth section of the statute of July 20th, 1790, (be-
fore cited,) it is provided that " no sum, exceeding one dollar,
shall be recovered of any seaman or mariner " in the merchant
service, " by any person for any debt contracted during the
time such seaman or mariners shall actually belong to any
ship or vessel, until the voyage for which such seaman or
mariner engaged shall be ended." In the case of Reynard v.
Brecknell, 4 Pick. 302, it was held that as the effect of this
provision is to avoid, or at least to suspend, a contract which,
but for that provision, might be enforced at law, the seaman
must strictly prove his exemption, and must therefore produce
the shipping paper which, by the first section of the same
statute, he is required to sign, or make out a case for the ad-
mission of secondary evidence of that paper.
■ The United States statute, passed on the 19th of June, 1813,
requires that " the master or skipper of any vessel of the burden
of twenty tons or upwards, qualified according to law for carry-
ing on the bank or other cod fisheries, bound from a port of
SEA.MEN. 103
the United States to be employed in any such fishery, shall,
before proceeding on such fishing voyage, make an agreement
in writing or print, with every fisherman who may be em-
ployed therein ; and in addition to such terms of shipment as
may be agreed on, shall in such agreement express whether the
same is to continue for one voyage or for the fishing season,
and shall also express that the fish, or the proceeds of such
fishing voyage or voyages, which may appertain to the fisher-
men, shall be divided among them in proportion to the quan-
tities or number of said fish which they may respectively have
caught; which agreement shall be indorsed or countersigned
by the owner." 3 U. S. Laws, (Peters' ed.) 2. Since the pass-
ing of the United States statute of May 24th, 1828, " author-
izing the licensing of vessels to be employed in the mackerel
fishery " a vessel licensed for the cod fishery is not authorized
by such license to engage in the mackerel fishery. The
Nymph, Ware, (2d ed.) 259.
Under the statute of June, 1813, the shipping articles, which
are required to be indorsed or countersigned by the owner of
the vessel, do not conclusively determine, by the indorsement,
who are the owners, nor with whom the agreement was made;
and a seaman may have his remedy against all the owners for
his share of the fish taken, and may show, by other evidence
than the articles, who the owners are. And on showing that
others besides those who indorsed the articles were owners
and shared in the proceeds of the voyage, he may make them
defendants jointly with those by whom the articles were in-
dorsed, and recover against them all. Wait v. Gibbs, 4 Pick.
298. The owners of a fishing vessel may employ seamen to
navigate her and to fish on wages instead of shares ; and if one
of the owners acts as master, and the others do not interfere,
he will be deemed their agent ; and such contract, made by
him in his name, will enure to their use and bind them. And
a seaman's contract for wages is not affected by his signing
shipping articles agreeing to receive a share of the fish as his
compensation, if fraudulent representations induced him to
sign them. Baker v. Corey, 19 Pick. 496. The general
owners of a vessel engaged in the mackerel fishery are liable,
104 LAW OP CONTEACTS.
as such, for the wages of a cook employed by the master, un-
less the master has become owner pi'o hac vice, or there is
some usage or contract by which the master or the master and
crew only are liable. Such owners' liability is suspended only
when they have let out the vessel for a term of time to another
person, giving him the entire control for such term, to employ
her in such voyages and enterprises as he pleases, to engage and
employ seamen, and to pay all expenses incident to the navi-
gation, (a) It is not suspended nor affected by an agreement
in the shipping articles " that the owner or agent of said
schooner is not holden for any wages due on said voyage, un-
less by special agreement made with the owner or agent."
And although by the general usage in the mackerel fishery,
the amount of the cook's wages is always to be deducted from
that part of the proceeds of the voyage which is proportioned
to the master and crew, and not from that part retained by the
owners of the vessel, yet this does not exempt the owners
from their legal liability for the cook's wages. Harding v.
Souther, 12 Cush. 307. {b)
For full knowledge of the law respecting seamen's con-
tracts, duties and rights, resort is to be had to the numerous
Admiralty Reports, English and American, and Treatises on
Shipping and on Maritime Law.
11. Attorneys and other Agents.
The word " attorneys " here means persons constituted, by
letter under seal, to transact another's business. Co. Lit. 52.
By agent is meant a person in any way authorized to act
for another. Agent is the genus, attorney a species. The
correlate of attorney is constituent ; of agent, principal. In
(a) See Mayo v. Snow, 2 Curtis, 102.
(6) " In the whale fisliery, no statute has yet, in terms, required the contract
to be in writing, but the invariable usage of that trade, and in fact the nature
of the contract, have insured the universal adoption of a written agi-eement.
It contains a description of the voyage, the share or ' lay,' as it is called, of
each officer and seaman," &c. Curtis on Rights and Duties of Merchant Sea-
men, 60, and Appendix, 391. And see Barney v. Coffin, 3 Pick. 115. Bax-
ter v. Rodman, ib. 435. Tripp r. BrowncU, 12 Cush. 376. Taber j;. Jenny,
Sprague's Decis. 315.
AGENTS. 105
common parlance, however, these terms are used indiscrimi-
nately ; and a like want of precision is found in many modern
books. What is now to be said concerning contracts by
agents will include attorneys, without thus designating them
except when the word " attorney " is used in quotations that
may be made.
An agent cannot bind his principal by deed, (that is, a spe-
cialty,) unless he is empowered by deed, (a) There is an ex-
ception to this rule in case of a corporation which has a
common seal. A vote of the corporation authorizing an agent
to contract by deed is sufficient. And see, as to partners,
post. 124. A parol (unsealed) authority will authorize a parol
contract, and an oral authority will warrant a written exercise
of it. (6)
A deed made by an agent for his principal must, to give it
validity as such, be made in the name of the principal. If it
be executed in the principal's name, it is not material by what
form of words such execution is denoted ; whether it be " for
A. B., C. D." or " A. B. by C. D. his attorney " or " C. D. at-
torney for A. B." (c)
" The conveyance," says Parsons, C. J., 7 Mass. 19, " must
be the act of the principal, and not of the attorney ; otherwise
the conveyance is void. And it is not enough for the attor-
ney, in the form of the conveyance, to declare that he does it
as attorney ; for he being in the place of the principal, it must
be the act and deed of the principal, done and executed by
the attorney in his name." And Story, J., 5 Peters, 350, says
that though it is apparent that the agent, in cases in which he
wrongly executes a deed in his own name, intended to bind
his principal, yet " the law looks not to the intent alone, but
to the fact whether that intent has been executed in such a
manner as to possess a legal validity."
(a) Paley on Agency, (4th Amer. ed.) 157. Hanford v. McNair, 9 Wend.
64. Wheeler v. Nevins, 34 Maine, 54. By Sewall, J., 5 Mass. 40.
(b) Anon. 12 Mod. 564. Kyd on Bills, (3d ed.) 189.
(c) Combes's case, 9 Co. 76. Wilks v. Back, 2 East, 142. Elwell v. Shaw,
16 Mass. 42 and 1 Greenl. 339. Fowler v. Shearer, 7 Mass. 14. Brinley v.
Mann, 2 Cush. 33 7. Mussey v. Scott, 7 Cush. 215. Jones's Devisees v. Car-
ter, 4 Hen. & Munf. 184. Wilburu v. Larkin, 3 Blackf. 55. Hunter v. Miller,
6 B. Monroe, 612. Eckhart v. Reidel, 16 Texas, 67.
106 LAW OF CONTRACTS.
Contracts by agents as such, if made in proper form, are
the contracts of the principals, and of the same binding force
as if made by themselves personally. If made by an author-
ized agent in terms which do not legally bind the principal,
they sometimes bind the agent. So if made by him who as-
sumes to act as agent, but who is not duly authorized to act
as such, they may bind him personally. But it does not
necessarily follow that a contract which fails to bind the prin-
cipal, whether made by an authorized agent or by one who
wrongly assumes to act as such, does therefore render the per-
son who made it answerable for its performance.
Whether a contract is that of the principal or of the agent,
or of neither, whether it binds the one or the other, or is void,
depends upon the legal effect of its terms and the legal au-
thority of the person acting as agent. See Abbey v. Chase,
6 Cush. 56. On these points, though the decisions are numer-
ous, and in confusion if not in conflict, yet perhaps all the
cases in which the party's agency, real or assumed, appears
on the face of the contract, are comprised in the following
principles or rules of decision :
First. If a duly authorized agent uses such terms as legally
import an undertaking by the principal only, the contract is
that of the principal, and he alone is the party by whom it is
to be performed.
Second. If a person, assuming to act as agent, uses such
terms as legally import a personal undertaking by himself, and
not by the principal, the contract is his, and not that of the
principal, and is to be performed by him alone. In such
case it is immaterial whether he was or was not authorized to
act as agent.
Third. If one who is not duly authorized to act as agent,
assumes to act as such, and uses such terms as legally import
the undertaking of the principal only, the contract is void.
In cases of simple contracts (except negotiable notes, and
bills of exchange) in which no agency appears on their face,
but they purport to be made by the parties personally, " it is
competent," as said by Baron Parke, in Higgins v. Senior, 8
Mees. & Welsh. 844, " to show that one or both of the parties
AGENTS. 107
were agents for other persons and acted as such agents in
making the contract so as to give the benefit of the contract
on the one hand to, (4 Barn. & Cres. 664,) and charge with
liability on the other, (15 East, 62,) the unnamed principal ;
and this evidence in no way contradicts the written agree-
ment. It does not deny that it is binding on those whom, on
the face of it, it purports to bind, but shows that it also binds
another, by reason that the act of the agent, in signing the
agreement in pursuance of his authority, is in law the act of
the principal." To the same effect are the remarks of Lord
Denman, in Willm. Woll. & Dav. 241, and in 5 B. & Ad. 393.
The same law is applied to oral contracts made by an agent
in his own name. Addison on Con. (2d Amer. ed.) 618. 5
Gray, 562. Thus when a factor or other agent sells the goods
of his principal without disclosing his agency or its being
otherwise known to the buyer, and payment has not been
made to the agent, the principal may recover payment from
the buyer.
" If a factor sells goods as owner, and the buyer bond fide
purchases them in the belief that he is dealing with the owner,
he may set off a debt due to him from the agent against a
demand preferred by the principal." By Creswell, J., 7 C. B.
693. " Where a factor," says Lord Mansfield, " dealing for a
principal, but concealing the principal, delivers goods in his
own name, the person contracting with him has a right to
consider him to all intents as the principal ; and though the
real principal may appear and bring an action upon the con-
tract, against the purchaser of the goods, yet the purchaser
may set off any claim he may have against the factor, in an-
swer to the demand of the principal." Rabone v. Williams,
7 T. R. 360, note. Bat when the purchaser has notice, at the
time of purchasing, that the seller is dealing merely as agent
of some other person, he cannot, though he acted in good
faith, set off a debt due to him from the seller, at the expense
of the principal. The buyer, in such case, needs not to have
notice who the principal is. Fish v. Kempton, 7 C. B. 687.
See also Squires v. Barber, 37 Verm. 558.
So if an agent buys goods in his own name for a principal,
108 LAW OF CONTRACTS.
the seller, on discovering the principal, may recover payment
from him. " An unknown principal, when discovered, is
liable," says Lord Ellenborough, " on the contracts which his
agent makes for him ; but that must be taken with some
qualification ; and a party may preclude himself from recover-
ing over against the principal, by knowingly making the agent
his debtor." Paterson v. Gandasequi, 15 East, 68. (a)
As to bills of exchange and negotiable notes, it has been
long settled that he who takes negotiable paper contracts
with him who, on its face, is a party thereto, and with no other
person. By Lord Abinger and by Baron Parke, 9 Mees. &
Welsh. 92, 96. Broom on Parties, § 187. Story on Bills, (4th
ed.) § 76. Edwards on Bills, (2d ed.) 80. Byles on Bills, (4th
Amer. ed.) 96, 97. 2 Taylor on Ev. 934. 8 Allen, 460. Hence
evidence is not admissible to charge any other person thereon
upon the ground of his having been the copartner or principal
of the party named. (&) Whether a bill or note is, on its face,
the contract of the principal or of the agent, is decided by the
same rules of construction which are applied to other simple
contracts.
The third of the above suggested rules, though not sus-
tained by uniformity of decisions, seems to be supported by
the better reason and the preponderance of authority. There
(a) These are matters of common learning which are found, with citations
of most of the adjudged cases, in the Treatises on Contracts that are in gen-
eral use, and also in Russell on Factors, Smith on Merc. Law, Paley on
Agency, and Story on Agency. See also Taintor v. Prendergast, 3 Hill, 72.
Pitts V. Mower, 18 Maine 361. Edwards v. Golding, 20 Verm. 30. Walter
V. Ross, 2 "Wash. C. C. 283. Hogan v. Shorb, 24 Wend. 458. Huntington
V. Knox, 7 Cush. 371. Eastern Railroad Co. v. Benedict, 5 Gray, 562. Ler-
ned V. Johns, 9 Allen, 421.
(6) Bills. Thomas v. Bishop, 2 Strange, 955. Emly v. Lye, 15 East, 7.
Sowerby v. Butcher, 2 Crompt. & Mees. 368 and 4 Tyrw. 320. Mare v.
Charles, 5 El. & Bl. 978. Leadbitter v. Farrow, 5 M. & S. 345. Goupy v.
Harden, 7 Taunt. 159 and 2 Marsh. 454. Hancock v. Fairfield, 30 Maine,
299. Fuller v. Hooper, 3 Gray, 341. Bank of British North America v.
Hooper, 5 Gray 571. Slawson v. Loring, 5 Allen, 340. Pentz v. Stanton,
10 Wend. 271. Notes. Fox v. Frith, 10 ]\Ices. & Welsb. 136. Stackpole v.
Arnold, 11 Mass. 27. FIske v. Eldridgc, 12 Gray, 474. Haverhill IMut. F
Ins. Co. V. Newhall, 1 Allen, 130. Babcock v. Bemau, 1 Kernan, 200.
• AGENTS. 109
are cases in which it has been adjudged that he, who without
authority contracts for another in terms which legally import
the other's sole undertaking, is himself legally answerable in an
action on the contract itself, (a) Might it not as well be held
that he who forges another's name to an instrument is party
thereto and may be charged as such in an action thereon ?
Other decisions sustain that rule, and decide that the remedy
is by action to recover, of the party wrongly assuming to act
as agent, damages for the failure of the contract, {b) Such
action has heretofore been framed in tort ; but it has been re-
cently decided in England, (as stated, ante 5,) that the party
is liable to an action on an implied promise that he was au-
thorized as agent. Yet as the ground of his liability is his
wrongful conduct, he is not liable where he was in no fault ;
as where the authority which he once had was ended by the
death of his principal, of which he had no notice, or by his
mistake as to the power conferred by his authority, (c)
In the application of the foregoing rules, the diversity in the
adjudged cases is on the question, what terms, used in a con-
tract made by an agent, do or do not legally import his sole
undertaking, or that of the principal ; and this chiefly in
(a) Dusenbury v. Ellis, 3 Johns. Cas. 70. White v. Skinner, 13 Johns.
307. Palmer v. Stephens, 1 Denio, 480, and other iJ^ew York cases there
cited. (But see 5 Selden, 585, 586, and 13 Barb. 639, 640.) Bay v. Cook,
2 Zab. 343. Bank of Hamburg t?. Wray, 4 Strobhart, 8 7. Byars v. Doore's
Adm'r, 20 Missouri, 284.
(6) Jenkins v. Hutchinson, 13 Ad. & El. N. S. 744. Lewis v. Nicholson,
18 ib. 511. These cases overruled the previous English decisions that one
who contracts as agent when he has no principal, may be regarded as himself
the principal, and personally liable on the contract. " I always thought the
notion," says Lord Campbell, 7 El. & Bl. 312, "of suing the agent as prin-
cipal absurd." See also Hopkins v. Mehaffy, 11 Serg. & R. 129. Delius v.
Cawthorn, 2 Dev. 90. McHenry v. Duffield, 7 Blackf. 41. Potts v. Hender-
son, 2 Carter, (Ind.) 327. Ogden v. Raymond, 22 Conn. 385. Long v. Col-
burn, 11 Mass. 97. Ballou v. Talbot, 16 Mass. 461. Jefts v. York, 4 Cush.
871 and 10 Cush. 395. Moor v. Wilson, 6 Foster, 336. 2 Kent Com. (11th
ed.) 840. Smith on Merc. Law, (5th ed.) 219. 2 Smith Lead. Cas. (6th Amer.
ed.) 414.
(e) See 10 Mees. & Welsb. 9. 6 Met. 528. 10 Cush. 395, 396. 1 Amer.
Lead. Cas. (4th ed.) 637. Story on Agency, § 264 §' seq. See also Randell
V. Trimen, 18 C. B. 786. • CoUen v. Wright, 7 El. & Bl. 301.
110 LAW OP CONTRACTS.
respect to simple contracts. As to contracts under seal there
is great uniformity of decision, that though they are, in terms,
made in behalf of a principal whom the agent names, yet if
he contracts in his own name only, and affixes his private
seal, he thereby binds himself only, (a) So of contracts in like
terms, though not under seal, (b)
But when a simple contract is made by an agent, in such
terras and signed in such manner as would bind the principal,
if it were under seal, it does not bind the agent, (c) And
this is now generally held to be the law, which is to be ap-
plied to agents of foreign as well as of domestic principals,
contrary to the statement in Story on Agency, § 268, that the
agent of a foreign principal is ordinarily presumed to be per-
sonally and exclusively liable on a contract made for him,
whether it be made as agent, or not. The present doctrine is,
(a) Appleton v. BInks, 5 East, 148. Duvall v. Craig, 2 Wheat, 56. Stone
V. Wood, 7 Cowen, 453. Tippets v. Walker, 4 Mass. 595. Damon v. Granby,
2 Pick. 345. Fullam v. West Brookfield, 9 Allen, 1. It is the doctrine of
the courts of New York, that if an authorized agent executes, in his own name
and under his private seal, a contract for the exclusive benefit of the prin-
cipal, and which is not required to be under seal, he is not personally bound
thereby, but that it may be treated as the simple contract of the principal.
Randall v. Van Vecbten, 19 Johns. 60. Dubois v. Delaware & Hudson
Canal, 4 AVend. 285. Worrall v. Munn, 1 Selden, 229. Ford v. Williams, 3
Kcrnan, 5 77. Haight v. Sahler, 30 Barb. 218. See also Bledsoe ;;. Cains,
10 Texas, 455, and Crozier v. Carr, 11 ib. 376.
(ft) Burrell v. Jones, 3 B. & Aid. 47. Norton v. Herron, Ry. & Mood. 229
and 1 Car. & P. 648. Higgins v. Senior, 8 Mees. & Welsh. 834. Jones v.
Littledale, 6 Ad. & El. 490 and 1 Nev. & P. 677. Cooke v. Wilson, 1 C. B.
N. S. 153. Wilson v. Zulueta, 14 Ad. & El. N. S. 405. Kennedy v. Gou-
veia, 3 Dowl. & Ryl. 503. Tanner v. Christian, 4 El. & Bl. 591. Parker v.
Winlovv, 7 ib. 942. Simonds v. Heard, 23 Pick. 120. Broom on Parties,
142 ^- seq.
(c) Lyon v. Williams, 5 Gray, 557. Lord Galway v. Matthew, 1 Campb.
403. Green v. Kopke, 18 C. B. 549. Mahony v. Kekule, 14 C. B. 39U,
which was thus : " Contract between Vaclicr & Tilly and M. Mahony," and
signed in this manner : " For Vaclier & Tilly, Charles Kekule. M. Ma-
hony." In an action by Mahony against Kekule for breach of this contract,
it was decided that he was not personally liable. If he had affixed a seal after
his signature, it would have been duly executed in the name of his principals,
and have been their act, if he was duly authorized by them. Cases cited
ante, 105, note c.
AGENTS. Ill
that when the terms of a contract made by an agent are clear,
they are to have the same construction and legal effect, whether
made for a domestic or for a foreign principal. In either case,
it is a question of intention, to be determined, as in other in-
struments in writing, by the terms of the contract. If the
terms of such contract are ambiguous, so that it is doubtful
to whom credit was intended to be given, the fact that the
principal was a foreigner may be considered in deciding
whether the agent is liable, (a)
A foreign principal, whose goods are sold by his agent, has
the same right which a domestic principal has, to resort to the
buyer for payment, (b)
As to most of the simple contracts made by agents, it seems
impracticable to deduce from the decisions any single distinct-
ive proposition that will serve as a test of the question
whether they bind the principal or the agent. The cases are
in confusion, and apparently in conflict. There seem to be
distinctions where the differences, if any, are so thin and
shadowy as to elude common discernment. They all, how-
ever, assume the rightful rule, that they are to be determined
according to the intention of the parties, which is to be ascer-
tained from the terms of the contract in suit.
Instead of a useless attempt to collect and compare the
multiplied decisions on this subject, reference is made to the
Treatises on Agency, and to Eastern Railroad Co. v. Benedict,
5 Gray, 561, Bank of British North America v. Hooper, ib.
567, and Barlow v. Congregational Society in Lee, 8 Allen,
460, which cases contain a more instructive discussion of this
matter than has been found elsewhere. And it will there ap-
pear that contracts by or with cashiers of banks and treasurers
(a) Mahony v. Kekule, 14 C. B. 398. Green v. Kopke, 18 C. B. 557.
Pennell v. Alexander, 3 EI. & Bl. 304, Oelrieks v. Ford, 23 Howard, 49.
Kirkpatrick v. Stainer, 22 Wend. 244. Bray v. Kettell, 1 Allen, 80. 2 Kent
Com. (6th ed.) 631. 3 Robinson's Practice, 57 c^- .se^. 1 Amer. Lead. Cas.
(4th ed.) 639, 640. But the courts of Maine (22 Maine, 138 and 33 ib. 112,)
and of Louisiana (1 Rob. 149,) recognize the doctrine advanced in Story on
Agency.
(b) Hardy v. Fairbanks, 1 James (Nov. Scotia,) 432. Barry v. Page, 10
Gray, 398. By Cowen, J., 3 Hill, 73.
112 LAW OP CONTEACTS.
of corporations, made in their names as such officers, are gen-
erally regarded as contracts by or with the banks or corpo-
rations of which they are officers. In the Massachusetts
decisions, if the case of Mann v. Chandler, 9 Mass. 335, be
excepted, it is believed that there is no conflict.
A public agent is not personally liable on a contract made
by him in behalf of the government, unless he expressly
pledges his own responsibility. The reason for a different
construction of similar contracts, when used by a private and
when used by a public agent, is stated by Parsons, C. J., in 4
Mass. 597 ; namely, that " the faith and ability of the state, in
discharging all contracts made by its agents in its behalf,
cannot, in a court of justice, be drawn into question." (a)
A ratification of an act done by one who assumes to be
an agent is tantamount to a prior authority. A parol con-
tract may be ratified by an express parol recognition or by
conduct of the principal which implies acquiescence, or even
by his silence. The conduct of the principal may estop him
to deny the agent's authority, (b)
" It is said to be a rule, on the ground that a ratification
operates as equivalent to a previous authority, that where the
adoption of any particular form or mode is necessary to con-
fer the authority in the first instance, there can be no valid
ratification except in the same manner ; and thus, as an au-
thority to execute deeds must be under seal, there cannot be
a parol ratification of a deed executed without authority un-
der seal. This is certainly applicable to express ratifications,
(a) See Macbeath i'. Haldimand, 1 T. R. 172. Unwin v. Wolseley, ib.
674. Myrtle v. Beaver, 1 East, 135. Rice v. Chute, ib. 579. Hodgson v.
Dexter, 1 Cranch, 345. Parks v. Ross, 11 Howard, 374. Tucker y. Justices,
13 Ired. 434. Jones v. Le Tombe, 3 Dallas, 384. Brown v. Austin, 1 Mass.
208. Copes V. Matthews, 10 Smedes & Marsh. 398. Blair v. Robinson, 3 Kerr,
(N. B.) 487. Ryan v. Terrington, Newfoundland Rep. 29. Stanly's Ex'or
V. Hawkins, Martin, (N. C.) 55. Chit, on Con. (10th Amer. ed.) 303-305.
Story on Agency, (6tli ed.) c. xi. By statutes in Massachusetts and Maine, the
wardens of the state prisons are to be held personally liable on certain contracts
made by them in behalf of the public. 11 Met. 138, 139, 220. 3 Pick. 17.
(b) Paley on Agency, (4th Amer. ed.) 171-174. Story on Agency, §§ 239-
260.
PAETNERS. 113
and no doubt also to ratifications by such acts of recognition
and acquiescence as operate merely as evidence of assent ;
but it can hardly be questionable that an act which operates
as an estoppel in pais, such as the receiving and retaining of
the benefit of a contract under seal, would confirm a contract
made by an agent without legal authority." I Amer. Lead.
Cas. (4th ed.) 595. See also Mclntyre v. Parks, 11 Gray, 102.
As to ratification of one partner's sealed contract by his
copartner, see j^ost. 124.
12. Partners.
Partnership (a) is usually defined as a contract between
two or more persons to place their money, effects, labor, and
skill in commerce or business and to divide the profit and loss
in certain proportions. This, says Chief Justice Eyre, (2 H.
Bl. 246) is a good definition as between the parties them-
selves, but not with respect to the world at large. For there
are cases in which persons, who are not members of a firm,
according to an agreement of partnership, are liable to the
world at large for the debts of the firm, as if they were actual
members.
Thus, a person who holds himself out as a partner, repre-
senting himself to be such, may be answerable as such. In
a suit against such person it has been decided that the law is
this : The defendant is liable, if the debt was contracted
upon his representation of himself to the plaintiff as a partner,
or upon such a public representation of himself in that char-
acter, as to lead the jury to conclude that the plaintiff, know-
ing of that representation, and believing the defendant to be
a partner, gave him credit under that belief, {b) The holding
one's self out to the world as a partner, as contradistin-
(a) The law as to Joint Stock Companies is not here considered. See the
works of Wordsworth and of Thring on such companies. Nor the law of
limited partnerships.
(6) Ford V. Whitmarsh, Hurlst. & Walms. 53. See also Dickinson v. Val-
py, Lloyd & Welsh. 6, 5 Man. & Ryl. 126 and 10 Barn. & Cres. 128. Fitch
V. Harrington, 13 Gray, 469, 475, Watson on Part. (Amer. ed.) 5. Wood
V. Pennell, 51 Maine, 52. Hicks v. Cram, 17 Verm. 449. Bowie v. Maddox,
29 Georgia, 285. Davis v. White, 1 Houston, 232.
114 LAW OF CONTRACTS.
guished from the actual relation of partnership, imports at
least the voluntary act of the party so holding himself out.
It impHes the lending of his name to the partnership, and is
incompatible with the want of knowledge that his name has
been so used, (a) As to the facts which will or will not show
such voluntary act, see Gary on Part. 18, 19. Potter v. Greene,
9 Gray, 309. Currier v. Silloway, 1 Allen, 19.
And if there be an agreement between those who are al-
ready partners and a third person, that he 'shall participate in
the profits of the firm, as profits, such person is held liable for
the debts of the firm, or if two persons agree that each shall
have a share of the profits of certain business which they
transact separately, they become partners, and each is liable
for the debts of both, which are incurred in such business ; on
the ground that every one who has a share of the profits
ought also to bear his share of the loss, as he takes a part of
that fund on which creditors rely for their payment, {b) " The
ground as to third persons," said Lord Eldon, " is this : It is
already settled, that if a man stipulates that as the reward of
his labor he shall have, not a specific interest in the business,
but a given sum of money, even in proportion to a given
quantum of the profits, that will not make him a partner; but
if he agrees for a part of the profits, as such, giving him a
right to an account, though having no property in the capital,
he is, as to third persons, a partner, and in a question with
third persons no stipulation can protect him from loss." Ex
parte Hamper, 17 Ves. 412. And such is the present ac-
knowledged law. Story on Part. §§ 35 Sj- seq. Bisset on Part.
13 t^ seq. and the other treatises on partnership. Perry v.
(«) By Tindal, C. J. in Fox v. Clifton, 4 Moore & Payne, 713 and 6 Bing.
794.
(i) Grace v. Smith, 2 W. Bl. 1000. Waiigh v. Carver, 2 H. Bl. 235.
Cheap V. Cramond, 4 B. & Aid. 663. Hesketh v. Blanchard, 4 East, 144.
Pott V. Eyton, 3 C. B. 32. Holt v. Kernodle, 1 Ired. 202. Dob v. Halsey,
16 Johns. 40. Purviance v. M'Clintec, 6 Serg. & R. 259. Champion v.
Bostwick, 18 Wend. 175. Olmstead v. Hill, 2 Pike, 346. Young v. Smith,
25 Missouri, 344. 3 Kent Com. (11th ed.) 25. Chitty on Con. (10th Amer.
ed.) 260 »r seq. See an able criticism of the first two of these cases in 1
Liiidley on Partnership (Amer. ed.) 93-96, and a "hope" expressed by Mr.
Lindley, that this rule " will ere long cease to exist." And see 3 Best & Smith,
847.
PARTNERS. 115
Butt, 14 Georgia, 699. See further, that a stipulation in
articles of partnership, exempting one of the partners from
losses, will not affect his liability to the creditors of the firm.
2 H. Bl. 246. 3 Mees. & Welsh. 361. Story on Part. §§ 60,
61. Gow on Part. (1st Amer. ed.) 18. 1 Montagu on Part.
5. Watson on Part. (Amer. ed.) 13 Sf seq.
Another mode in which one, who is not a partner under
the articles of partnership, may become liable for the debts of
the firm, is by an agreement with one of the members that
he shall participate in that member's share of the profits of
the firm, [a)
Those only who are by law permitted to make other con-
tracts can make a contract of partnership. Hence an alien
enemy (unless he resides here under the license and protec-
tion of the government) cannot be a partner, [b) Nor a mar-
ried woman, except when the law enables her to act as a feme
sole ; and the statutes of Massachusetts do not enable her to
be a partner in a firm of which her husband is a member.
Lord V. Parker, 3 Allen, 127. In 1 Lindley on Part. (Amer.
ed.) 118, it is said, on the authority of the cases cited ante, 80,
note a., that by the law of England a lunatic is capable of
being a partner. An infant may be a partner under a
contract voidable like his other contracts ; and his rights
and liabilities under such contract are stated ante, 63, 64.
Under the English statute, 57 Geo. III. c. 99, § 3, which en-
acted that no spiritual person having any dignity, prebend,
(a) Fitch V. Harrington, 13 Gray, 468. In this case the defendant rehed
on the statement in Colly, on Part. (3d Amer. ed.) § 194, that though a stran-
ger cannot be introduced as a partner against the will of any of the copart-
ners, " yet no partner is precluded from entering into a sub-partnership with a
stranger. In such case the stranger may share the profits of the particular
partner with whom he contracts, and not being engaged in the general part-
nership, will of course not be liable for their debts." This was decided not to
be sustained by the cases cited by Mr. Collyer, and not to be the law. In 1
Lindley on Part. (Amer. ed.) 101, 102, the law is stated as in Collyer, but
with no additional citations which support it. See 3 Ross's Lead. Cas. (Amer.
ed.) 480-483. See 12 Allen, 544.
(&) Bisset on Part. 2, 3. Story on Part. § 9. Griswold v. Waddington,
15 Johns. 57 and 16 Johns. 438.
116 LAW OF CONTRACTS.
benefice, lectureship, &c., should engage in or carry on any
trade or dealing for gain or profit, it was decided that such
spiritual person could not lawfully be a member of a partner-
ship formed for the purpose of carrying on the business of
bankers, (a) A manufacturing corporation established under
the laws of Massachusetts cannot form a partnership with an
individual, (b) and among the reasons given are such as
would seem to apply to all corporations. But see 1 Lindley
on Part. (Amer. ed.) 119. Two or more corporations cannot
enter into partnership, unless authorized by express grant or
necessary implication, (c)
A contract of partnership in business which is contrary to
law confers no right on either party against the other, but is
void. And this is so not only when the business is contrary
to the provisions of statutes, but also when it violates mo-
rality, religion, or public policy ; as the business of pawn-
brokers, or of acting plays, contrary to a statute ; (d) or for
smuggling ; (e) or for unlawful gaming; (/) or for the fraudu-
lent purpose of hindering or delaying the creditors of one of
the parties in the collection of their debts ; (g-) or for the sup-
port of a house used for any unlawful business or purposes, (h)
But third persons who are not aware of the unlawfulness of a
partnership have the same rights which they have against law-
ful partners. Gary on Part. (Amer. ed.) 8. And as to the par-
ties themselves, the supreme court of the United States (Catron,
J. dissenting) have decided that after a partnership, which
was against public policy, has been carried out, and money
(«) Hall V. Franklin, 3 Mees. & Welsb. 259. See Lewis v. Bright, 4 El.
& Bl. 917. Tench v. Roberts, Madd. & Geld. 145, note.
(i) Whittenton Mills v. Upton, 10 Gray, 582. See 10 Allen, 456.
(c) Angell & Ames on Corp. § 272, citing N. York & Sharon Canal Co. v.
Fulton Bank, 7 Wend. 412, and Pearce v. Madison & Indianapolis Railroad
Co. 21 Howard, 441. See Grant on Corp. 8. 14 Barb. 471.
(d) Lewis v. Armstrong, 3 Myl. & Keen, 64, 4 Moore & Scott, 1, and 2
Crompt. & Mees. 274. Ewing v. Osbakliston, 2 Myl. & Craig, 53. De Beg-
nis r. Aruiistead, 10 Bing. 107 and 3 Moore & Scott, 511.
(e) Bi,. Averill, 6 Selden, 449.
(e) Frye v. Tucker, 24 Illinois, 180. Farmer's Bank v. Maxwell, 32 N. Y.
Rep. 579.
(/) New York Firemen Ins. Co. v. Ely, 5 Conn. 560, 569. Same parties,
2 Cowen, 678. Utica Ins. Co. v. Scott, 19 Johns. 1. Utica Ins. Co. v. Hunt,
1 Wend. 56. It was decided in Utica Ins. Co. v. Kip, 8 Cowen, 20, and in
one or two other cases in New York, that though the notes taken in such
cases by the corporation were void, yet that the corporation might recover the
money in an action for money lent. But this was questioned by Nelson, C. J.
in 25 Wend. 650. See Angell & Ames on Corp. §§ 265, 274.
160 LAW OF CONTRACTS.
power, such corporation usurps a franchise, and judgment of
ouster will be rendered against it upon information in the na-
ture of a quo warranto, (a) A corporation that is authorized
to lend money only on bond and mortgage cannot recover
money lent, unless a bond and mortgage be taken for its pay-
ment ; and every other security, as well as the contract itself,
is void, (b)
In Bank of Genessee v. Patchin Bank, 3 Kernan, 309, it
was held that a bank has no power to engage as surety for
anotlier, in a business in which it has no interest, and is not
liable on its accommodation indorsement.
There is this distinction between corporations and individu-
als : An individual may make and enforce the performance
of any contract which the law does not forbid. A corporation
can make and enforce no contract which the law does not
expressly authorize it to make, or which is not fairly incident
to the authority expressly conferred.
(o) People V. Utica Ins. Co. 15 Johns. 358. And see The State v. Steb-
bins, 1 Stew. 299. People v. River Raisin, &c. Railroad Co. 12 Mich. 390.
(b) Life & Fire Ins. Co. v. Mechanic Fire Ins. Co. 7 Wend. 31. North
River Ins. Co. v. Lawrence, 3 Wend. 482.
In 2 Bulst. 233, it is reported that " the opinion of Manwood, Chief
Baron, was this as touching corporations ; that they were invisible, immortal,
and that they had no soule, and, therefore, no subpoena lieth against them, be-
cause they have no conscience nor soule ; a corporation is a body aggregate ;
none can create soules but God ; but the king creates them, and, therefore,
they have no soules ; they cannot speak nor appear in person, but by at-
torney. And this was the opinion of Manwood, Chief Baron, touching cor-
porations."
CHAPTER III.
Of the Consideration of Contracts.
Mr. Chitty's description of a contract not under seal (it
will be recollected) is " a mutual assent of two or more per-
sons competent to contract, founded on a sufficient and legal
consideration," &c. Mutual assent and parties having been
considered, the consideration of a simple contract is next in
order.
What is called, in the common law, the consideration of
a contract, is denominated, in the civil law, the cause ; causa
contractus, conventio cum causa, &c.
" Consideration is the material cause, or quid pro quo of a
contract, without which it will not be effectual or bind-
ing ; " (a) " a cause or meritorious occasion, requiring a mu-
tual recompense, in fact or in law." {h)
On principles of mere natural law, every gratuitous under-
taking, if deliberately and fairly assumed, forms the basis not-
only of an honorary but of a moral obligation. Bat moral
duties and legal obligations are not made coextensive by
any municipal code. The common law, especially, gives
effect only to contracts that are founded on the mutual ex-
igencies of men, and does not compel the performance of any
merely gratuitous engagements, unless those engagements
are made under seal ; and even then, a fiction is adopted.
A seal, it is said, imports a consideration, which the party
shall not be permitted to deny. By local usage, however, in
some of the States of the Union, and by statute in others, the
(a) Termes de la Ley. (&) Dyer, 336 b. Finch, 34.
11
162 LAW OP CONTRACTS.
want or failure of consideration is a valid defence to a suit on
a sealed contract, (a) And courts of chancery will not en-
force specific performance of such contracts, if they are with-
out consideration.
Mr. Justice Wilmot expressed a strong opinion, 3 Bur. 1670,
1671, that if a contract were reduced to writing, the doctrine
of nude pacts, which was introduced from the civil law,
would not apply. Blackstone also says, a promissory note,
" from the subscription of the drawer, carries with it an in-
ternal evidence of a good consideration," and that " he shall
not be allowed to aver the want of a consideration, in order
to evade the payment." (6)
It was, however, decided by the House of Lords, in the
case of Rann v. Hughes, (c) as seen ante, 147, that whatever
may be the rule of the civil law, simple contracts, by the law
of England, whether oral or written, must be founded on a
consideration, (d) Nor is a promissory note an exception to
this rule. While such note is in the hands of the payee,
want of consideration is a good defence. So also as between
indorser and indorsee, (e) When a negotiable note is nego-
tiated, and comes into the hands of a third person, bona fide,
and without notice, the want of consideration for originally
giving or indorsing it is not a defence against the holder.
The same is true of negotiated bills of exchange.
It is not, however, the form of a bill or note, nor its being
in writing, that gives it efficacy without consideration. This
efficacy is given by the law, in order to facilitate commercial
intercourse, which is carried on through the medium of these
species of contracts, and which would be greatly retarded and
embarrassed if every holder of these kinds of paper were
(a) See 1 Bay, 278. 2 Bay, 11. 1 Dallas, 17. 5 Binn. 232. 11 Wend.
106. 1 Blackf. 172. 1 Bibb, 600. And by the common law, a bond given
in partial restraint of trade, may be shown to be void for want of considera-
tion. Post^ c. iv.
(h) 2 Bl. Com. 450. (c) 7 T. R. 850, note.
(f/) See also Cooke, 499. 4 Taunt. 117. 1 Saund. 211, note 2.
(e) Kyd on Bills, (3d cd.) 276. 2 Ves. jr. 111. 5 Taunt. 553. 6 Mass.
434. 3 T. R. 421. 17 Johns. 301.
OF THE CONSIDERATION. 163
obliged to inquire into the original consideration, or incur the
risk of losing his property on account of a defect in their con-
coction. Another reason is given in some of the books, nannely,
that these instrunrients are governed by the law-merchant,
which is founded on the law of nature and nations, by which
want of consideration is not an essential defect in a contract.
It is not necessary that the consideration of an agreement
should be adequate in actual value. No means are* provided
by which this point can be determined in a court of law. In-
adequacy of price is sometimes a ground of relief in chan-
cery ; not, however, on the principle of controlling or revising
the judgment of the parties, when freely and fairly exercised ;
but upon the evidence, thereby furnished, of the incompetency
of one party to contract, or of fraud and imposition practised
by the other, in the instance brought into question, (a)
A consideration, it is said, must include some benefit to the
party promising, or some trouble, prejudice, or inconvenience
to the party to whom the promise is made, {b) And with
reference to the rules of pleading, it is probably true that a
consideration must include some benefit to the promisor, or to
a third person, or some damage, loss, or inconvenience to the
promisee, at the instance of the party promising. In stating
the consideration of an agreement, in a declaration in special
assumpsit, it doubtless is necessary, as a general rule, to allege
the instance or request of the promisor that he or a third per-
son should receive a benefit, or that the promisee should incur
a damage, inconvenience, or loss. In many cases, however,
this request may be, and is, implied, as well as the promise
thereupon made ; and like the promise itself, it is also some-
times to be implied directly against the actual fact. The
fiction is as obvious, and, on original principle, as unnecessary,
in this stage of the contract, as in that where a promise by
the same party is implied. The real ground, in both cases, as
has heretofore been suggested [ante, 5, 6,) as to the promise,
(a) See Evans v. Brown, Wightwick, 109. Newland on Contracts, Chap-
ter xxi. George v. Richardson, Gilmer, 230.
(b) Com. Dig. Assmnpsit, B. 1. Smith on Con. (4th Amer. ed.) 166.
164 LAW OP CONTRACTS.
is duty and obligation, moral and legal. There often needs to
be, and is, in fact, no request and no promise, (a)
However slight the benefit to the promisor, if of any legal
value, and however slight the damage, loss, or inconvenience
to the promisee, if of any legal estimation, it is sufficient to
support a contract. 17 Conn. 511.
There are cases in which it seems doubtful whetber the
consideration, which sustains what is treated as a contract, is
regarded in law as a benefit to the promisor, or a damage, &c.,
to the promisee. Thus where goods are delivered on a promise
to redeliver them to the bailor, when no use is to be made of
them by the bailee, nor anything paid or promised by the
bailor, and where goods or moneys are delivered by the owner
to a bailee, on his undertaking to deliver them to a third per-
son, the bailment being gratuitous, it is held that the bailor
has a remedy, in an action ex contractu, if the bailee do not
perform his undertaking, and that there is a sufficient con-
sideration to support a contract. Wheatley v. Low, Cro. Jac.
668 and Palmer, 281. Graves v. Ticknor, 6 N. Hamp. 537.
Robinson v. Threadgill, 13 Ired. 39. It is also held that such
action is maintainable against a gratuitous bailee for mis-
performance of his undertaking, {b) or for loss, by gross
(a) A suggestion may not be useless, in this connection, respecting the
practice of putting books on the Law of Nisi Prius (Buller, Espinasse, Selwyn)
into tlie hands of students, in the early stages of their pupilage. The doc-
trines of the law, in these works, are set forth, in a great measure, with ref-
erence to the actions of which the compilers treat, and the rules of pleading
applicable to those actions. But when (in former days) were students
advised of this fact ? When were they cautioned not to take, as the real
truth of the matter, the elementary doctrine of the law, the positions laid
down by these writers in reference to the forms of actions and of plead-
ing ? The writers themselves do not give this caution, and young students
do not always distinguish between the body and the dress, the substance
and the form. With regard to pleading, nearly the whole doctrine treated
of under the title of Assumpsit is founded on fictions, that no book, which
the writer has seen, has attempted to explain or arrange. He hopes, how-
ever, that others have never been confused and misled as he has been by
lack of knowledge on these points.
Qj) Whitehead v. Greetham, McClel. & Y. 205, 10 Moore, 183 and 2 Bing.
OP THE CONSIDERATION. 165
negligence, of the thing bailed, (a) According to Palnaer's re-
port of Wheatley v. Low, Ley, C. J. considered the damage
ultimately sustained by the bailor, as the consideration on
which the contract rested. But this is no legal considera-
tion ; for it did not exist at the time the alleged contract was
made. The same might be said of every gratuitous prom-
ise where an injury arises from a neglect to perform it.
Lord Holt said, " there is, in that case, no benefit to the
defendant, nor no consideration but the having the money in
his possession, and being trusted with it, and yet that was
held to be a good consideration." 2 Ld. Raym. 920. And
this, according to Croke's report, was the ground on which
the court put the case. In a prior case, (6) the bailee's
possession of the property was regarded as a benefit to him.
And these cases are classed, by Comyns and by Comyn, with
those of benefit to the promisor, (c)
It cannot be doubted that, in some of these cases, the bailor
must have requested the bailee to take the property, and that
(whether benefit to the latter, or damage to the former, were
the gi'ound of the consideration) it was not in fact, however
it might be in legal intendment, at the instance and request
of the promisor. And so in all other gratuitous bailments,
where the actual advantage accrues only to the bailor.
In all these cases, and others like them, it is admitted and
adjudged, that if the party sought to be charged had merely
promised to receive the goods and redeliver them to the bailor,
or deliver them over to a third person, or to do any other act,
and had afterwards refused or omitted to fulfil such promise,
he could not have been made responsible in law for the
464. See Dartnall v. Howard, 4 Barn. & Cres. 345 and 6 Dowl & Ryl,
438.
(a) Doorman v. Jenkins, 2 Ad. & El. 256 and 4 Nev. & Man. 170.
Beauchamp v. Powley, 1 Mood. & Rob. 38. See Beardslee v. Richardson,
11 Wend. 25.
(b) Riches v. Bridges, Cro. Eliz. 883 and Yelv. 4. This case was reversed,
but was restored by the decision in Wheatley v. Low, supra. Story on Bailm.
§ 98. 2 Ld. Raym. 920.
(c) Com. Dig. Assumpsit, B. 10. Comyn. on Con. (1st ed.) 14.
166 ' LAW OF CONTRACTS.
non-performance, either in an action ex contractu or ex de-
licto, {a) But if the bailee enters upon the performance of a
gratuitous undertaking, and fails to perform it according to the
terms of the undertaking, he is answerable in damages, [b)
The fictitious nature of the consideration, as to the inci-
dents of " benefit," &c., is still more manifest in that class of
cases where a mere legal obligation is the ground of an im-
plied proQQise, than in the cases already mentioned. In such
cases, the obligation is held to be a sufficient consideration, (c)
The action of debt is founded on a contract, express or im-
plied ; yet debt lies for the recovery of a penalty affixed by
statute to the commission of an act therein forbidden, or the
omission of an act therein enjoined, unless some other mode
of recovery is prescribed by the statute itself The penalty,
when incurred, is by the law regarded as a debt thereupon
due to the party authorized to sue for it. And if a considera-
tion is required to support an implied contract to pay such a
debt, it is to be sought in the legal obligation to pay it. If
the penalty be given to the party injured by the act or omis-
sion by which it is incurred, and he be regarded as the party
with whom the delinquent contracted, there would be no diffi-
culty, perhaps, in ascertaining whether the consideration in-
cluded a benefit to the one or a damage to the other. But
when the penalty is given to a common informer, and the
notion of a contract is still retained, as it must be, the diffi-
culty, as to the benefit or damage included in the considera-
tion, is not so readily removed. Debt also lies (in England
and in some of the states of the American Union) against a
(a) Addison on Con. (2d Amer. ed.) 11, 532. Thorne v. Deas, 4 Johns.
84. Stephens v. White, 2 Wash. (Va.) 211, 212. McGee v. Bast, 6 J. J.
Marsh. 455.
{h) By Lord Holt, 2 Ld. Raym. 919. Elsee v. Gatward, 5 T. R. 143.
Wilkinson v. Coverdale, 1 Esp. R. 75. Balfe v. West, 13 C. B. 466. Fer-
guson V. Porter, 3 Florida, 38. Walker v. Smith, 1 Wash. C. C. 162.
French v. Reed, 6 Binn. 308. Rutgers v. Lucet, 2 Johns. Cas. 95. Kirt-
land t". Montgomery, 1 Swan, 457, 458. Alexander r. Motlow, 1 Sneed,
253. Story on Bailni. §§ 169-171. Edwards on Bailm. 100. 2 Kent Com.
(11th ed.) 760.
(c) Belfast v. Leominster, 1 Pick. 127. See also 7 Conn. 5 7.
OP THE CONSIDERATION. 167
sheriff for the escape of a prisoner in execution. This, how-
ever, is by an old English statute, and not by the common law.
A debt to the creditor is incurred by the officer guilty of the
escape. Here again, damage to the creditor is sufficiently
obvious as the consideration of this fictitious contract.
In all these and similar cases, the " instance and request "
of the party liable by law to pay, that the other party should
incur a damage, &c., must be implied, if at all, hot only against
the fact, but against all the principles by which mankind are
actuated. Such cases are to be regarded as anomalies ; the
law authorizing the enforcement of a remedy in the form ap-
propriated to actual contracts. They are, in truth, no more
properly contracts than are assault and battery, slander, or
larceny. And on strict principle, the collection of a penalty
for breach of a statute is no more easily reconciled with the
doctrine of contracts, than would be the recovery of damages
for any injury infficted on persons or property ; and the law
might as well imply a promise to repair all injuries which a
party commits, as to pay a penalty prescribed by statute, or
the debt of a prisoner escaping from an officer.
So in the case of a mere legal obligation, where there is no
antecedent moral duty, the notion of a contract is wholly
fictitious. By a fiction, indeed, the protection of government
may be deemed a consideration for an implied promise to pay
the expenses of administering it. And this fiction may be
extended to the cases of municipal charges, as for the support
of the poor, &c. But in these instances of mere positive in-
stitution, though the law may rank with actual contracts the
obligation of contributing, yet there is only an imaginary re-
semblance, and it is only by fiction, and for legal conformity's
sake, that a consideration is to be sought.
The cases in which a slight benefit to the party promising,
and a slight damage, loss,or inconvenience to the other party,
has been held sufficient to sustain a contract, are collected in
Comyns's Digest, Action upon the Case upon Assumpsit, B,
1 Comyn on Contracts, part L, chapter 2, and 1 Powell on
Contracts, 330 et seq. Upon a careful examination of the
earlier cases on this subject, some confusion and contradiction
168 LAW OP CONTRACTS.
will be perceived ; and it probably is impossible to reconcile
them. In most instances, however, it will be found that the
misapplication of acknowledged principles, rather than the
assumption of contradictory ones, has caused the discrepan-
cies in the adjudications on this topic. In the modern decis-
ions, there is hardly an instance in which judges have differed
in their views on the subject of consideration.
In sales, exchanges, loans, and most other contracts, there
is no difficulty in at once perceiving the consideration. But
in some cases it is not so readily discerned. And after hes-
itation as to the expediency or the profit of so doing, a few ex-
amples, illustrative of the principles on which much of the
law on this point now rests, are here cited.
Slight benefit to the promisor.
A promise, in consideration of so much money received, to
pay the like sum into court, and appear. " For here he has
benefit for the use of the money." [a) A promise to cancel a
bond, in consideration that the obligor will pay the single sum,
at the day of payment. " For peradventure the non-payment
at that time would be more prejudicial to him than the for-
feiture of the bond would be of advantage." " He had benefit,
namely, to be sure of the performance." {h) So of a promise
by a judgment creditor to assign the bond and judgment
against the principal to the bail, in consideration of his pay-
ing the amount of the judgment, after scire facias brought
against him. (c) A promise by an executor to accept .£150
in satisfaction of a debt to the testator of £205. For the
nature of the debt is changed, and the executor may sue for
it in the debet, i. e. as for his own proper debt; whereas, be-
fore, he must have sued in the detinet, i. e. in his representa-
tive capacity, (d) This action was against the debtor on his
promise to pay the smaller sum, and was sustained. But
there was no consideration for this promise, unless the execu-
tor was bound to discharge the original debt. And on the
(a) 2 Vent. 45.
(6) Hutton 76 and Cro. Car. 8. See also Coke v. Hewit, cited Cro. Eliz.
194. (c) Gouldsb. 156. (d) Yelv. 11.
OP THE CONSIDERATION. 169
same principle an action would have been supported against
the executor, if he had refused to fulfil his engagement to re-
ceive the smaller sum in full satisfaction. A promise to ac-
knowledge satisfaction of a judgment for five pounds, upon
the payment of four pounds, was held to be binding; for " it
is a benefit unto him to have it without suit or charge ; and
it may be there was error in the record, so as that the party
might have avoided it." (a) This case, however, would not,
probably, be now considered as rightly adjudged. A contract
of which a lease at will is the consideration, has. been ad-
judged to be void, because the tenancy may be determined
immediately; (6) but if it be doubtful whether the tenant
have a right to hold, i. e. if it be doubtful whether he be ten-
ant at will, the assignment of such a lease or interest will
support a promise, (c) The relinquishment of a doubtful
right is therefore a good consideration for a promise, (d)
Where the plaintiff orally bargained with A. for a house, and
sold the bargain to the defendant for £40, and A., at the de-
fendant's request, conveyed to B., it was held, in a suit for
the .£40, that the consideration was sufficient, (e) The only
true ground of this decision seems to be, that the defendant
had a chance of receiving a benefit. That the defendant
actually received a benefit, through the plaintiff's means,
though mentioned by the court, was no consideration for the
original promise ; though it might perhaps have supported a
promise made after the conveyance to B. If the decision be
correct, on the existing facts, it must have been the same,
though A. had refused to convey the house.
In Schnell v. Nell, 17 Ind. 29, it was held that a promise,
in consideration of one cent, to pay six hundred dollars, was
unconscionable and void on its face. So of a promise, in con-
(«) Cro. Eliz. 429 and Moore, 412.
(&) Kent V. Prat, 1 Brownl. 6.
(c) 1 Vin. Ab. 309. 2 Bing. 244.
(d) See post. 177.
(e) Seaman v. Price, 2 Bing. 437. On a writ of error, the King's Bench
affirmed this judgment, upon the ground that A.'s promise must be taken
after verdict, to have been a valid one, i. e. in writing. 4 Barn. & Cres. 528
and 7 Dowl. & Ryl. 14.
170 LAW OF CONTRACTS.
sideration of one dollar, to pay upwards of a thousand dollars.
Shepard v. Rhodes, 7 R. I. 470.
Slight damage, Sfc, to the promisee.
A promise to pay a sum of money, if the promisee will
procure an order from a third person, directing the payment,
is binding, if the condition is performed, (a) So of a promise
to pay rent in arrear to an assignee of a leasehold estate, if a
deed be shown proving that the rent is due. [b) So of a
promise to pay the bond of a third person, if the obligee will
go before a magistrate and make oath that it was rightly read
to the obligor before he executed it. " The travail of coming
before the mayor is a very good consideration." (c) In the
cases cited in the margin, {(T) proof of a debt, in various
agreed modes, was held to be a sufficient consideration for a
promise to pay. " For it is a charge to the plaintiff." So of
an undertaking to endeavor to perform an act at another's re-
quest ; (e) and of a promise to indemnify, if the plaintiff will
enter into land of a third person which the defendant claims
as his own. (/) So of a promise to pay a certain sum of
money if the plaintiff will call for it at a particular time, and
he call accordingly ; the calling for the money being an incon-
venience to the plaintiff, [g) Where A., at B.'s request, con-
sented that B. might weigh A.'s boilers, and B. thereupon
promised that after the weighing he would leave and give
them up in as good condition as they were in at the time
of the consent so given, it was held that there was a good
(a) 2 Vent. 71, 74.
(6) Cro. Eliz. 67.
(c) Cro. Eliz. 469. T. Ray. 153. 2 Sid. 123. 18 Johns. 337. But see
1 Freeman, 133 and 1 Mod. 166, where Vaughan, C. J. denied that extrajudi-
cial oaths were lawful, or of any legal effect, and said they were punishable
by setting the party in the stocks, under the statute of James I. against pro-
fane swearing.
(^0 1 Sid. 57, 283, 369. T. Ray. 32. 7 Mod. 13. 1 Freeman, 53. 1 Lit-
tell, 121, 123.
(e) Hob. 105. T. Ray. 400.
(/) 2 Johns. Cas. 52.
(fj) By Wilde, J. 5 Pick. 384. And see 11 Met. 171, 172.
OF THE CONSIDERATION. 171
consideration for the promise ; that A. might have sustained
some damage by complying with B.'s request, (a)
Benefit to a third person at the instance of the promisor.
All sureties for the debts, or performance of duties, cove-
nants, &c., of others, come under this head. The surety, by
legal intendment, requests that the principal may be accom-
modated with a loan, or may have credit at another's shop,
&c. The consideration of his undertaking is the benefit re-
ceived by the principal, at his request, express or implied.
Guaranties, and all other forms of collateral obligation as-
sumed for others, come within the same principle, (b)
In Minet's case, (c) Lord Eldon said, " the undertaking of
one man for the debt of another does not require any con-
sideration moving between them." And undoubtedly it is not
necessary, in order to hold a surety, that there should be any
consideration, as between him and the principal. Any person
may promise as surety, without the principal's knowledge ;
and if there be a consideration for the promise it will be
binding. Otherwise, he will not be bound, though he promise
at the express request of the principal.
Where the whole is one agreement, where the principal and
surety, or guarantor, unite, at the same time, in making a
promise, that agreement is obligatory on the surety, or guar-
antor ; and the consideration for that agreement attaches to
him as well as to the principal. Principal and surety, in such
case, are joint contractors, and the benefit to the principal, or
the damage, &c., to the promisee, is the consideration which
supports the contract of both promisors, (d)
When a promise is made to pay the already existing debt
of another, there must be some new consideration, or the
promise will be void. The original consideration, which
(a) Bainbridge v. Firmston, 1 P. & Dav. 2, 8 Ad. & EI. 743 and Willm.
Woll. & Hodges, 600. And see 3 Kerr, (N. B.) 212.
(i) See Brown v. Garbrey, Gouldsb. 94. Kirkby w. Coles, Cro. Eliz. 137.
Stadt V. Ijill, 9 East, 348. Leonard v. Vredenburgh, 8 Johns. 29. Hunt v.
Adams, 5 Mass. 361.
(c) 14 Ves. 189.
(d) See Tenney v. Prince, 4 Pick. 385. Samson v. Thornton, 3 Met. 279.
172 LAW OF CONTRACTS.
supports the principal's contract, cannot be made to operate
on the new promise. Such promise it nudum pactum, [a)
Forbearance.
Forbearance to sue, or surceasing a suit or suspending a
right, is a sufficient consideration, [h) Thus where an obligor
had commenced proceedings in chancery, on the ground that
he had paid the bond which still remained in the obligee's
hands, a promise by the latter to give up the bond, in con-
sideration that the obligor would desist from his suit in chan-
cery, was held to be valid, (c) An agreement to forbear, for
a certain or reasonable time, to sue, or adopt legal proceedings,
for a legal cause of action, at the request of the party liable,
is a sufficient consideration to support a promise, [d) For-
tjearance to sue, &c., is a good consideration for the promise
of a third person, as well as of the person liable to suit, (e)
In some of the foregoing cases, the forbearance was given by
an assignee of a debt, who could not have sued in his own
name ; and the consideration was held to be sufficient. It
was held, in older cases, that the consideration was not suffi-
cient, unless the assignee had a letter of attorney to sue and
release. (/) As seen, ante 139, a promise by an executor or
administrator, in consideration of forbearance to sue, is upon
(a) Packard v. Richardson, 17 Mass. 129. Parker v. Carter, 4 Munf.
273. Bixler v. Ream, 3 Pennsyl 282.
(h) May v. Alvares, Cro. Eliz. 387. Com. Dig. Assumpsit, B. 1. 2. 2
Bibb, 30. 1 Saund. 211 note. Templeton v. Bascom, 33 Verm. 132. As to
the evidence of an agreement to forbear, see 7 Conn. 528. 11 Met. 172. 8
Cush. 88. 5 Gray, 553.
(c) Dowdenay v. Oland, Cro. Eliz. 768. And see Pooly v. Gilberd, 2
Bulst. 41.
{d) 2 Saund. 137 c. d. note. Bidwell v. Catton, Hob. 216. Rippon v.
Norton, Yelv. 1. Harris v. Richards, Cro. Car. 272. Elting r. Vanderlyn, 4
Johns. 237. King v. Weeden, Style, 264.
(e) Reynolds v. Prosser, Hardr. 71. Davison v. Hanslop, T. Ray. 211 and
2 Lev. 20. Quick v. Copleston, 1 Sid. 242. Edwards v. Kelly, 6 M. & S.
204. Jennison v. Stafford, 1 Cush. 168. Robinson v. Gould, 11 Cush. 55.
Rood V. Jones, 1 Doug. (Mich.) 188.
(/) See 1 Rol. Ab. 20, pi. 11, 12. Reynolds v. Prosser, Hardr. 74, and
Pet 17. Bridgwater, there cited.
OP THE CONSIDERATION. 173
sufficient consideration, and will bind him personally, though
he has not assets, (a)
In Moore, 854, it is said that the executor's " promise im-
plies assets." This, however, cannot be the true ground of
these decisions ; for a mere promise to pay, without any new
consideration, is void, if there be no assets. And yet the
promise implies assets in this instance as much as in the
other, (b)
The usual consideration of the guaranty of a note or other
engagement, when undertaken after the note, &c., is made, is
the forbearance extended to the original promisor. And (as
before stated) unless there be some new consideration, such
undertaking is nudum pactum, (c)
The cases already cited, and many others, show that not
only forbearance to sue, but also forbearing to insist upon,
payment when it would be made without suit, if demanded,
forbearing to levy an execution, or to take out or execute
other process, is a good consideration for a promise, either by
the party to whom the forbearance, &c., is given, or by a third
person, (d) So of withdrawing objections to the probate of
a will, (e) and forbearing to protest a bill of exchange drawn
on the party promising. (/)
Lord Mansfield and Ashhurst, J., are reported (g) to have
held that a promise by a judgment debtor to pay debt and
cost, in consideration of a stay of execution, was not suffi-
cient to support an action ; as it was turning a judgment debt
into a debt upon simple contract. This was an extrajudicial
opinion, and contrary to an adjudged case (h) in the reign of
Elizabeth. In the case of Tanner v. Hague, also, {{) a
(a) 1 Saund. 210, note (1). Treford v. Holmes, Button, 108. Palmer's
case, Hetley, 62. Porter v. Bille, 1 Freeman, 125. 2 Saund. 137 c. note.
(b) See Pearson v. Henry, 5 T. R. 8. Browne's case, 1 Freeman, 409.
(c) See King v. Upton, 4 Greenl. 387. Ulen v. Kittredge, 7 Mass. 233.
(d) Style, 395, 440. Cro. Eliz. 868, 909. Godb. 159, pi. 220. 1 Sid. 38.
Hutton, 63. 2 Eeble, 200. 1 Salk. 28. 1 B. & Ad. 603. 10 Mass. 230.
Yelv. 20. See also Newsom's case, Clayton, 139.
(e) 5 Pick. 393, 394, by Parker, C. J.
(/) Pinchard v. Fowke, Style, 416. (g) Cowp. 129.
Qi) Tisdale's case, Cro. Eliz. 758. (?) 7 T. R. 420.
1T4 LAW OF CONTEACTS.
defendant was discharged from execution on his undertaking
to pay the debt on a future day, and counsel admitted that
there was a remedy on the new promise.
It was said by Jackson, J., 14 Mass. 99, that if an obligor,
on being called upon to pay his bond, should promise to pay
at a future day, assumpsit would not lie on this promise. The
contrary, however, was adjudged in the case of Ashbrooke v.
Snape, Cro. Eliz. 240. And if the promise in such case
were made in consideration of forbearance expressly given,
the foregoing cases leave no room to doubt that such promise
is a good ground of action. So if the promise were made
on condition that the obligee should make oath that the
sum secured by the bond was due, or should call again upon
the obligor for payment, and the obligee had performed the
•condition.
Forbearance, it is said, must be for a certain time, or for a
reasonable time. And the weight of authority is, that for-
bearance per breve or paululum tempus, is not a considera-
tion of any value in law ; for a suit may be immediately
brought, notwithstanding the brief forbearance of an hour or
a day. And the forbearance promised must be sufficient at
the time of the promise, and not depend on the promisor's
subsequent conduct, (a)
For the same reason, forbearance aliquo tempore is insuffi-
cient, (b) " Pro aliquo parvo tempore, viz. some fortnight or
thereabouts," was held sufficient, in the case of Baker v.
Jacob, (c)
Forbearance for a reasonable or convenient time is a suffi-
cient consideration. Id certum est quod certum reddi potest ;
and the court is to decide, when the suit is brought, whether
the party has forborne for such a time, [d) Indefinite
(a) 1 Rol. Ab. 23. Marshe's case, Hetley, 8. Tricket ». Mandlee, 1 Sid.
45. Lutwicli V. Hussey, Cro. Eliz. 19. 4 Wash. C. C. 151. 1 Pennsyl. 385.
Contra, Wborwood v. Gybbons, Gouldsb. 48. Gill v. Harewood, 1 Leon. 61.
Cooks V. Douze, Cro. Car. 241. Palmer's case, Hetley, 62.
(b) 1 Sid. 45. Cro. Car. 438. 1 Selw. N. P. (11th ed.) 45, 46.
(c) 1 Bulst. 41.
(jl) 3 Bulst. 207. Moore, 853. 1 Sid. 45, 294. 1 Lev. 188. 2 M. & S.
60, by Lord Ellenborough.
OF THE CONSIDERATION. 175
forbearance was, at first, held to be insufficient ; (a) but it
is now well settled that such is a good consideration ; that
total and absolute, or at least reasonable, forbearance is
thereby intended, (b)
The distinction between a "little time" or " some time," a
"reasonable " or " convenient " time, or an indefinite forbear-
ance, though somewhat subtle, is sufficiently intelligible. A
consideration must be sufficient when the contract is made,
and must not depend on subsequent events, (c) Forbearance
for a " little time," &c, is wholly uncertain, and the courts
cannot decide what is a little time, within the meaning of
the parties. And though a reasonable or a long time may
be afterwards given to the promisor, yet it does not render
the original consideration sufficient. Whereas, general for-
bearance, or for a convenient or reasonable time, is a subject
of judicial understanding, and must import, at the time of the
contract, such a forbearance as the courts will hold to be suffi-
cient.
In declaring on a promise made upon such consideration,
the plaintiff must allege the time of forbearance actually
given, and he must prove it ; and if it be judged reasonable
and sufficient, the action will be sustained, (d)
Forbearance is not a good consideration to support a prom-
ise, unless there is a good cause of action. It must be a for-
bearance of what might be legally enforced. Therefore,
where an obligee released one of the joint obligors, and the
other promised payment, in consideration of forbearance, it
was held to be nudum pactum ; for a release of one is a dis-
charge of both, (e) So of a promise by an heir to pay the
(a) Philips V. Sackford, Cro. Eliz. 455.
(h) Cowlin V. Cook, Latch, 151 and Noy, 83. Anon. 1 Freeman, 66.
Thei'ue v. Fuller, Cro. Jac. 397. Beven v. Cowling, Poph. 183. Mapes v.
Sidney, Cro. Jac. 683 and Button, 46. Maynell v. Mackallye, Style, 459.
Barnehurst v. Cabbot, Hardr. 5. Clark v. Russel, 3 Watts, 213. Hamaker
V. Eberley, 2 Binn. 506. Lonsdale v. Brown, 4 Wash. C. C. 151. See
Semple v. Pink, 1 Exch. 74, as to the language which imports forbearance
for a reasonable time.
(c) By Dodderidge, J., Poph. 183.
(d) Hardr. 5. 4 Johns. 237. 4 Greenl. 387.
(e) Hammon v. Roll, March, 202. Herring v. Dorell, 8 Dowl. P, C. 604.
176 LAW OF CONTRACTS.
bond of his ancestor when he is not expressly bound in the
bond ; (a) and of a widow to pay a note given by her while
under coverture, or her husband's debts ; (b) and of a hus-
band, after his wife's death, to pay a debt contracted by her
before marriage, (c) or a debt which she owed as executrix or
administratrix, (d) So of a promise in consideration of a
discharge from a wrongful arrest, (e) Nor is forbearance to
sue a good consideration for a promise, where it does not ap-
pear that there was any person, in rerum natura, liable to
be sued. (/) There are cases, however, in which forbearance,
without mentioning the person to be forborne, is said to be
forbearance of everybody ; and in these cases, if there be
any person liable to pay, the promise will be binding, though
the defendant be not himself liable, (g-)
An agreement by a surety to forbear a suit against the prin-
cipal, after he shall have paid the principal's debt, is a good
consideration for a promise of reimbursement by a third per-
son, though the surety had no cause of action at the time of
the agreement, (h) " Forbearance to sue after the cause of
action attached would be as great an injury to the plaintiif,
as the immediate forbearance to sue a cause of action exist-
ing at the time of the promise," (?') This decision is within
the principle of the other cases, and not an exception to it.
It stands on the same ground with other prospective contracts.
If there had been no cause of action against the principal,
on the surety's paying the debt, or if the surety had him-
self been fully indemnified, the decision would have been
different.
(a) Barber v. Fox, 2 Saund. 136, and note to that case.
(b) Loyd V. Lee, 1 Strange, 94. Goodwin v. Willoughby, Latch. 142 and
Poph. 177. See post. 181. ■
(c) Smith V. Jones, Yelv. 184, 1 Bulst. 44, Owen 133 and Cro. Jac.
257.
(d) Lea v. Minne, Yelv. 84 and Cro. Jac. 110.
(e) Willes, 482. Godb. 358. Palmer, 394.
(/) .Jones V. Ashburnham, 4 East, 455. Rosyer v. Langdale, Style, 248.
And see Gould v. Armstrong, 2 Hall, 266.
(g) Humo v. Hinton, Style, 305. By Twisden, J., T. Ray. 32.
(h) Hamaker v. Eberley, 2 Binn. 506. (i) By Tilghman, C. J.
OF THE CONSIDERATION. 177
Surceasing Suit and Compromise,
Surceasing a suit at law or in equity is a sufficient con-
sideration of a promise to pay a stipulated sum. (a) And
this is so when a suit is instituted to try a question respecting
which the law is doubtful, or when the parties suppose the
fact, which is the subject of the agreement, is doubtful, (b)
So the withdrawing of a defence to a suit is a sufficient con-
sideration of a promise to accept a smaller sum in satisfaction
of a larger, (c) So the withdrawing by an heir of a caveat
to the proving of the will of his ancestor, is a sufficient con-
sideration to support a promise by the devisees to pay him a
specified sum. (d) But it must appear that there is some
reasonable ground for contesting the probate of the will, (e)
A note given by a defendant, on the plaintiff's ending an
action of slander against him, was held to be on a legal con-
sideration, though the words sued for were not actionable. (/)
So of an agreement not to make defence to an instituted suit,
but to let it abide the result of another case depending on the
same facts, upon a promise of an abatement of the claims in
suit, (g)
The compromise of a claim may be a good consideration
for a promise, although litigation has not been actually com-
menced. But, in that class of cases, when a suit is brought
on the promise, it may be shown in defence that there was no
legal ground for the claim that was thus compromised, and
(a) Stephens v. Squire, 5 Mod. 205 and Comb. 362. Smith v. Monteith, 13
Mees. & VVelsb. 437, 441. Pooly v. Gilberd, 2 Bulst. 41.
(h) Lonjrridge v. Dorville, 5 B. & Aid, 117. 13 Mees. & Welsb. supra.
Russell V. Cook, 3 Hill, 504. Perkins v. Gay, 3 Serg. & R. 327. Zane's
Devisees v. Zane, 6 Munf. 406. Trigg v. Read, 5 Humph. 529. Taylor v.
Patrick, 1 Bibb, 168. Blake v. Peck, 11 Verm. 483. Durham v. Wadling-
ton, 2 Strobhart Eq. 258. 1 Story on Eq. § 131. 2 Mich. 145.
(c) Cooper v. Parker, 14 C. B. 118 and 15 ib. 822.
{(l) Seaman v. Seaman, 12 Wend. 381.
(e) lb. Busby v. Conoway, 8 Maryl. 55. Allen v. Prater, 35 Alab. 169.
(/) O'Keson v. Barclay, 2 Pennsyl. 531. And see 1 Yroom, 323.
(g) Barlow v. Ocean Ins. Co. 4 Met. 270. See also Union Bank of
Georgetown v. Geary, 5 Peters, 99, 114. Fishy. Thomas, 5 Gray, 45.
12
178 LAW OF CONTRACTS.
the promise will thereupon be held void. " Unless," said
Blackburn, J. (1 Best & Smith, 569) " there was a reasonable
claim on the one side, which it was bona fide intended to pur-
sue, there would be no ground for a compromise." See 13
Illinois, 140. A note or bill given in consideration of what is
supposed to be a debt is without consideration, if it appears
that there was a mistake in fact, as to the existence of the
debt ; {a) or if a note is given on the payee's misrepresenta-
tion, though not fraudulent, that the maker is indebted to him
in the sum for which the note is given ; whether that misrepre-
sentation is in matter of fact or of law. {b)
Where each party agreed to give up and withdraw his claim
against the other, in consideration whereof one promised to
pay to the other an annuity, it was held that this promise was
on a sufficient consideration, {c)
See, on this subject, 3 White & Tudor's Lead. Cas. in
Equity (3d Amer. ed.) 406 Sf seq.
Moral Obligation.
It is frequently asserted in the books, that a moral obli-
gation is a sufficient consideration for an express promise,
though not for an implied one. The terms " moral obligation,"
however, are not to be understood in their broad ethical sense.
The present law on this subject is generally acknowledged, in
England and this country, to be as stated in a note to Wen-
nail V. Adney, 3 Bos. & Pul. 352, namely, that " an express
promise can only revive a precedent good consideration, which
might have been enforced at law, through the medium of an
implied promise, had it not been suspended by some positive
rule of law, but can give no original right of action, if the
obligation on which it is founded never could have been
(a) Bell V. Gardiner, 4 Scott N. R. 621 and 4 Man. & Grang. 11. In this
case, the defendant had given a note in satisfaction of a bill of exchange
which he had accepted for another's accommodation, not knowing that the bill
had been altered and that he therefore was not liable thereon, though he had
the means of knowing that fact. And see 4 Denio, 189.
(h) Southall V. Rigg and Forman v. Wright, 11 C. B. 494, 495.
(c) Llewellen v. Llewellen, 8 Dowl. & Lowndes, 318.
OP THE CONSIDERATION. 179
enforced at law'', though not barred by any legal maxim or
statute provision." Hence it is held that an express promise
to pay a witness for loss of time more than his legal fees for
travel and attendance will not bind the promisor, (a) Nor a
promise by a father to pay expenses incurred in relieving
his adult son suddenly taken sick at a distance from his
friends ; {b) nor a promise by a son to pay fof support fur-
nished to his father, (c) Nor the promise of a grandfather to
pay for services that have been rendered to his grandchild, (d)
Nor a promise to pay damages for detaining money, beyond
the amount of interest thereon, (e) And when a deed is
given of land described as of a certain number of acres,
which, upon being measured, is found to be less, a promise by
the grantor to pay back a proportional part of the price, will
not sustain an action. (/) A promise to pay for labor on land
entered upon and claimed by the plaintiff as his own, but re-
covered from him by the defendant in a suit at law, will not
support an action, (g-) Nor a promise by one to pay a demand
which he had voluntarily released, for the purpose of render-
ing himself a competent witness. (A)
(a) Willis V. Peckham, 1 Brod. & Bing. 515 and 4 Moore, 300. And see
1 B. & Ad. 956.
(6) Mills V. Wyman, 3 Pick. 207, In Besfich v. Coggil, Palmer, 559, the
court were equally divided on the question whether a father was liable on an
express promise to pay expenses, incurred in Spain, for the burial of his son.
(c) Cook V. Bradley, 7 Conn. 57. Parker v. Carter, 4 Munf. 273.
(c?) Elicott V. Peterson's Ex'r, 4 Maryl. 476, 492.
(e) Phetteplace v. Steere, 2 Johns. 442.
(/) Smith V. Ware, 13 Johns, 259. Williams v. Hathaway, 19 Pick, 387.
ig) Frear v. Hardenbergh, 5 Johns. 272. Society v. Wheeler, 2 Gallis.
143. See also McFarland v. Mathis, 5 English, 560, Carson v. Clark, 1
Scammon, 113. Hutson v. Overture, ib. 170. Carr v. Allison, 5 Blackf. 63,
(A) Valentine v. Foster, 1 Met. 520. The distinction, taken in this case,
between the validity of a promise to pay a claim that is discharged by opera-
tion of positive law, and a claim that is released or otherwise discharged by
the voluntary act of the claimant, has been recognized and applied by other
courts. See Ex parte Hall, 1 Deacon, 171. Stafford v. Bacon, 1 Hill's (N,
Y.) Rep. 532. Warren v. Whitney, 24 Maine, 562. Lewis v. Simons, 1
Handy, 82. Montgomery v. Lampton, 3 Met. (Ky.) 519. Shepard v. Rhodes,
7 R. 1.474. Contra, Willing u, Peters, 12 Serg. & R. 177,
180 LAW OF CONTRACTS.
Other express promises, called gratuitous, are held to be
void, as will hereafter be seen, merely for want of considera-
tion, though the moral obligation of the promisor, in its ethi-
cal sense, is most clear.
Among the cases sometimes cited to prove that a moral
obligation, in its extended sense, is a sufficient consideration
for an express promise, is Watson v. Turner, Bui. N. P. 129,
147. That was an action against the overseers of a parish to
recover for supplies furnished to a pauper, settled in the par-
ish, and boarding out of it, under an agreement made by the
overseers and the plaintiff, and a promise by them, after the
supplies were furnished, to pay therefor, was held to bind
them. " For," says the book, " overseers are under moral
obligation to support the poor." In Atkins v. Banwell, 2 East,
505, which was an action against overseers for supplies to a
pauper in a parish where he was not settled, it was held, that
as no express promise had been made, the action would not
be sustained ; and Lord Ellenborough said that the promise
in the former case made all the difference ; for a moral obliga-
tion was sufficient to support an express, but not an implied,
promise. The ground, however, on which Watson v. Turner
can be upheld, was the legal obligation of the defendants ;
for it is established law in England, that overseers are legally
bound to supply paupers casually in the parish, and paupers
settled there, if residents, or if residing elsewhere under their
charge, {a) So the case of Lord Suffield v. Bruce [h) might,
it is believed, have been sustained on the ground of legal obli-
gation, though Lord Ellenborough, before whom the case was
tried, spoke qnly of moral obligation as the consideration of
the defendant's express promise.
The following are cases in which an express promise has
been held sufficient to bind the promisor: A promise to pay
a debt barred by the statute of limitations, (c) or discharged
(a) Simmons v. Wilmott, 3 Esp. R. 01. Lamb v. Bunce, 4 M. & S. 277.
Newby v. Wiltshire, 4 Doug. 286 and Cald. 527. Wing v. Mill, 1 B. & Aid.
104. Paynter v. Williams, I Crompt. & Mees. 810.
(li) 2 Stark. R. 175. Chit, on Con. (10th Amer. ed.) 48.
(c) Chit, on Con. (10th Amer. ed.) 922.
OP THE CONSIDERATION. 181
under a bankrupt or an insolvent law. (a) So of an adult's
promise to pay a debt contracted during his infancy, (b) and
of a borrower's promise to pay principal and lawful interest
of a sum lent to him on a usurious contract, (c) So of the
promise by the drawer or indorser of a bill of exchange or
the indorser of a promissory note, to pay it, though he has not
received seasonable notice of the default of other parties, pro-
vided he is aware of the facts, (d) So of a promise by a
lessor to pay for repairs made by his lessee, according to an
agreement not inserted in the lease, [e) And where a debtor
paid part of the debt and took a receipt, and the creditor
afterwards recovered judgment for the whole debt, by reason
of the debtor's omission to show the receipt in reduction of
the claim sued for, the creditor's promise to refund the money
before received by him, if the debtor had a receipt therefor,
was held to be binding. {/) In Doty v. Wilson, 14 Johns. 381,
a promise to a sheriff, by one whom he had voluntarily suffered
to escape from his custody on final process, to repay to the
sheriff the amount which he had been compelled to pay to the
original creditor, was held valid.
In Lee v. Muggeridge, 5 Taunt. 36, a married woman gave
a bond to repay money advanced to her son in law ; and
after her husband's death she made a written promise that her
executors should settle the bond ; and it was decided that an
action at law was maintainable against her executors on that
promise. That case clearly oppugns the rule in 3 Bos. & Pul.
252, note, inasmuch as there was no cause of action which
could ever have been enforced at law ; the contracts of a mar-
ried woman being void ; and as seen, ante 176, a promise by
her, in consideration of forbearance, is therefore void. And
that case is not affirmed by any subsequent English decision,
(c) Cowp. 544. 1 Chit. R. 609. 7 Johns. 36. 8 Mass. 127, 6 Cush.
241. Hayes, 484.
(b) Ante, 55-58.
(c) Barnes v. Headley, 2 Taunt. 184. Early v. Mahon, 19 Johns. 147.
((/) Treatises on Bills and Notes.
(e) Seago v. Deane, 4 Bing. 459 and 1 Moore & Payne, 227.
(/) Bentley v. Morse, 14 Johns. 468, approved in 2 Barb. 425, 426.
182 LAW OF CONTRACTS.
but has been virtually, though not in express terms, overruled
by the cases of Littlefield v. Shee, 2 B. & Ad. 811, and East-
wood V. Kenyon, 11 Ad. & El. 438 and 3 P. & Dav. 276.
And it has been denied by courts in this country, (a)
In Viser ii. Bertrand, 14 Ark. 267, and in "Wilson v. Burr,
25 Wend. 386, a promise by a woman, after she had obtained
a divorce from her husband, to pay the fees of her counsel in
obtaining the divorce, was held to bind her. And in Goulding
V. Davidson, 26 N. Y. Rep. 604, where a married woman car-
ried on trade in her own name as an unmarried woman, and
bought goods of those who were ignorant of her coverture, it
was decided that she was bound by her promise, after her hus-
band's death, to pay for them, (b)
There are several cases in Pennsylvania, in which a moral
obligation has been held, contrary to the generally adopted doc-
trine, to be a sufficient consideration of an express promise, (c)
Mutual Promises.
One promise is a good consideration for another. Even
a voidable promise is sufficient, as has been seen in the case
of a promise by an infant. Aliter of a void promise. Thus
(a) Watkins v. Halstead, 2 Sandf. 311. Kennerly v. Martin, 8 Missouri,
698, Waters w. Bean, 15 Georgia, 360. Shepard v. Rhodes, 7 R. 1.473.
Watson V. Dunlap, 2 Cranch C. C. Rep. 14.
(6) In Lee v. Muggeridge, it appeared in the plaintiff's declaration that the
wife had an estate settled to her separate use. And though the court, in giving
judgment, took no notice of this fact, yet it has sometimes been suggested as a
reason for supporting that judgment. But when the fact of a wife's having
separate property does not appear on the pleadings, it is held that a promise to
pay, made by her, after her husband's death, is not binding. Ferrrers v. Cos-
tello, Longfield & Townsend, 292. Vance v. Wells, 8 Alab. 399. In the first
of these cases, the court expressed no opinion on the question whether, if that
fact had appeared on the pleadings, the promise would have bound the woman.
But in the other case, it was said, extrajudicially, that if goods are furnished
to a married woman, on the faith of her separate estate, or if she executes a
note as surety for her husband, her promise, after his death, that she will
make payment, binds her.
(c) Greevesr. McAllister, 2 Binn. 591. Willing v. Peters, 12 Serg. & R.
182. Hemphill v. MeClimans, 24 Penn. State Rep. 367. But in Snevily v.
Read, 9 Watts, 396, and in Kennedy v. Ware, 1 Barr, 445, the contrary was
held.
OP THE CONSIDERATION. 183
reciprocal promises of marriage are valid, {a) So of wagers,
where they are recognized as valid contracts, (b) So of prom-
ises to sell and deliver goods and to pay for them, (c) and of
divers other mutual promises, (d)
Mutual promises must be made at the same time, or they
are without consideration and void, (e)
In some of the cases above referred to, where the promise
of one party was held to be the consideration of the other's
promise, it would probably be held at this day, that the per-
formance of the promise was the true consideration ; and
therefore the form of declaring there adopted would not now
be sanctioned by the courts. (/) But this doctrine belongs
to the subject of pleading.
Gratuitous promises and services.
Merely gratuitous promises, as before stated, are void. Thus
natural affection is not a sufficient consideration to support
a promise, (g) A promissory note given by a father to a son,
on such consideration only, is void, (h) So of a note given
to a sister, in consideration that her father had bequeathed to
her a smaller portion of his estate than to the promisor, (i)
So of a note given by a testator, in his last sickness, to his
son in law, for the purpose of more effectually equalizing the
distribution of his property among his children than he had
(a) Holcroil v. Dickenson, Carter, 233 and 1 Freeman, 95, 347. Harrison v.
Cage, 5 Mod. 412 and 12 Mod. 214. Baker v. Smith, Style, 295, 303.
(b) Jackson v. Colegrave, Carth. 338. Martindale v. Fisher, 1 Wils. 88.
2 Chit. PI. (6th Amer. ed.) 227 ^ seq.
(f) Bettisworth v. Campion, Yelv. 134. Nichols v. Raynbred, Hob. 88.
(d) Cro. Eliz, 543, 703, 888. 4 Leon. 3. Hardr. 102. Comb. 256. 8
Johns. 304.
(e) Ante, 21, 22. Livingston v. Rogers, 1 Caines, 583. Tucker v. Woods,
12 Johns. 190.
(/) See 1 Saund. 320, note 4.
(o) Plowd. 302. Harford v. Gardiner, 2 Leon. 30. Bret v. J. S. and wife,
Cro. Eliz. 756. Chit, on Con. (10th Amer. ed.) 27, 50.
(A) Fink v. Cox, 18 Johns. 145. And see HoUiday v. Atkinson, 5 Barn. &
Cres. 501 and 8 Dowl. & Ryl. 163.
(i) Hill V. Buckminster, 5 Pick. 391.
184 LAW OF CONTRACTS.
done by a will previously executed, (a) So of a note given by
a father to his son in consideration of his releasing his interest
in the promisor's estate, (b) So of a note given by a father
to his son in consideration of the son's ceasing to com-
plain of the distribution which the father had made of his
estate, (c) So of a note given by a sister, who inherited her
brother's property, because she believed that if he had made a
will, he would have left to the payee of the note as much as
the amount thereof (d)
Merely gratuitous services are no consideration for an im-
plied promise to reward them : As voluntary assistance in
saving property from fire, (e) and other services rendered with-
out a precedent request, (/) The law is the same when one
pays another's debt without request, (g) " Perhaps it is better
for the public," said Eyre, C. J. 2 H. Bl. 259, « that these vol-
untary acts of benevolence from one man to another, which
are charities and moral duties, but not legal duties, should de-
pend altogether for their reward upon the moral duty of
gratitude."
An exception to this rule is found in the marine law of all
civilized nations, in the recompense which is awarded, under
the name of salvage, for the rescue of property from the perils
of the sea. Salvors have a lien upon the property saved, and
the amount of compensation is determined by a court of ad-
miralty, according to the circumstances, (h) But those who
secure property found afloat in a river, or beasts found astray,
have no such lien thereon, and cannot lawfully withhold the
property from the owner, on his refusal to compensate them
(a) Parish v. Stone, 14 Pick. 198. See Graves v. Graves, 7 B. Monroe,
214.
(b) Loring v. Sumner, 23 Pick. 98.
(c) White V. Bluett, 24 Eng. Law & Eq. 434.
(d) McCarroll v. Reardon, 4 Allen (N. B.) 261.
(e) Bartholomew v. Jackson, 20 Johns. 28.
(/■) 1 McCord, 22. 5 Johns. 272. 2 Gallis. 143.
((/) Jones V. Wilson, 3 Johns. 434. Beach v. Vandenburgh, 10 ib. 361.
(A) Abbott on Shipping (5th Amer. ed.) 659 §* seq. Maude & Pollock on
Shipping, c. x. 2 Parsons on Maritime Law, 595 Sf seq. Sprague's Decis.
57, 91, 282, 499. Newberry, 329, 341, 412, 421, 438. Daveis, 20, 6L
OP THE CONSIDERATION. 185
for their services, but are answerable to him in an action of
trover, (a) Yet though the finder has no lien for his services,
it seems that he may recover of the owner payment therefor,
in an action on an implied promise. (5)
Subscriptions.
Many actions have been brought, in this country, on sub-
scription papers in which the defendants promised to contrib-
ute certain sums in aid of some public object ; as the building
of a church, college or academy, support of public worship,
&c., and though there is not a uniformity in the decisions on
the question whether there is a sufficient legal consideration
of such promises, yet thus much is now the generally adopted
doctrine, namely, that where " something has been done, or
some liability or duty assumed, in reliance upon the subscrip-
tion, in order to carry out the object, the promises are binding
and may be enforced, although no pecuniary advantage is to
result to the promisors." (c)
(a) Nicholson v. Chapman, 2 H. Bl. 254. Baker v. Hoag, 3 Barb. 203.
Binstead v. Buck, 2 W. Bl. 1117.
(b) See Doctor & Student, c. 51. Addison on Con. (2d Amer. ed.) 444.
Story on Bailm. § 121 a. Reeder t'. Anderson's Adin'rs, 4 Dana, 193.
Preston v. Neale, 12 Gray, 222.
(c) Underwood v. Waldron, 12 Mich. 73, 89. McDonald v. Gray, 11 Iowa,
508. Commissioners of Canal Fund v. Perry, 5 Ohio, 59. Peirce v. Ruley,
5 Ind. 69. Johnston v. Wabash College, 2 Carter, (Ind.) 555. Robertson v.
March, 3 Scammon, 198. M'Auley v. Billinger, 20 Johns. 89. Reformed Prot-
estant Dutch Church v. Brown, 29 Barb. 335. George v. Harris, 4 N. Hamp.
533. Farmington Academy V. Allen, 14 Mass. 172. Bryant v. Goodnow, 5
Pick. 228. Amherst Academy v. Cowls, 6 Pick, 438. Watkins v. Eame-s 9
Cush. 537. Trustees of Church in Hanson v. Stetson, 5 Pick. 508. Ives y.
Sterhng, 6 Met. 310, 318. Mirick v. French, 2 Gray, 420. In several of the
earlier of the above cited Massachusetts cases, it was held, that although some-
thing had been done towards effecting the object of the subscription, in reli-
ance thereon, yet an action thereon could not be supported, but that an action
for money paid might be maintained. In Boutell v. Cowdin, 9 Mass. 254,
where there was a subscription for a fund to be applied towards the support of
the pastor of a church, and one of the subscribers gave a note for the amount
of his subscription, to the deacons of the church, " for the benefit of the church,"
it was decided that the note was void for want of consideration, and also be-
cause the deacons had no legal authority to receive and manage a fund
186 LAW OF CONTRACTS.
In Illinois, where one subscribed a paper promising to pay
to the county commissioners a sura for the purpose of defray-
ing, in part, the expense of a court house, provided it should
be located and erected on a certain described lot, and the
house was erected on that lot, it was decided that the com-
missioners could not maintain an action on that promise ; be-
cause, among other reasons, it was a promise to pay them for
an act which they were required by law to do, and was there-
fore void, being against public policy, (a)
Where one subscribed a sum towards building a meeting-
house, and the subscription was in its nature provisional, de-
pending upon the amount that should be subscribed by others,
and the building of the house within a reasonable time, and
there was a failure to raise the required amount of money, and
the project was indefinitely abandoned, and nothing done for
several years, it was held that the subscriber was under no
legal or honorary obligation to pay his subscription, (b)
Fictitious subscriptions, obtained for the purpose of affect-
ing other subscribers, render void those that are made after-
wards, (c)
established for the support of a minister. And in Phillips Limerick Academy
V. Davis, 11 Mass. 113, where persons agreed to pay certain sums for erecting
an academy, but no promisee was named, it was decided that for this reason
no action could be maintained on the promises, and also for the reason that
there was no legal consideration therefor. These cases, and also the case of
Bridgewater Academy v. Gilbert, 2 Pick. 579, were discussed in 6 Pick. 434-
438, by Chief Justice Parker, who virtually admitted that the first two might be
sustained on the other grounds therein taken besides the want of consideration ;
and he said : " We do not find that it has ever been decided that where there
are proper parties to the contract, and the promisee is capable in law of carry-
ing into effect the purpose for which it is made, and is in fact amenable to
law for negligence or abuse of his trust, such contract is void for want of a con-
sideration." These remarks show that he did not regard the last case (2 Pick.
579) as having been decided on the ground of want of consideration. And
Dewey, J. in 6 Met. 316, said that the "change of the location of the edifice"
towards the rebuilding of which he made his subscription, " might have been a
material circumstance in the case."
(a) County Commissioners i'. Jones, Breese, 103.
(6) Plunkett v. Methodist Episcopal Society, 3 Cush. 561, 566. And see
Stewart v. Trustees of Hamilton College, 2 Denio, 403.
(c) Middlebury College v. Adm'rs of Loomis, 1 Verm. 189.
OP THE CONSIDERATION. 187
Assignment of a chose in action.
The assignment of a chose in action that is legally assign-
able is a good consideration of a promise, {a) Such assign-
ment vests an equitable interest in the assignee, which courts
of law protect. And though the mere assignment does not,
by the common law, authorize the assignee to sue the assigned
claim in his own name in a court of law, {h) yet it is re-
garded as an authority to sue in the name of the assignor ;
and the court will not permit him to interfere to the assignee's
prejudice, (c) When a contract is in its nature negotiable and
is expressly so made, (as a bill of exchange or promissory note
payable to order or bearer,) the promisor may be sued thereon
by the indorsee or bearer, and cannot be sued in the name
of the original promisee without such promisee's consent, {d)
In these cases, the original consideration, if there were one,
and the poUcy of the law, if there were none, sustains the
promise. But when the contract is not technically negotia-
ble, a promise to pay the assignee is necessary to enable him
to sue in his own name ; and on such promise being made, he
may thus sue. (e)
By the statutes' or local usages of some of the States of the
(a) Loderv. Chesleyn, 1 Sid. 212 and 1 Keble, 744. Moulsdale v. Bia-
chall, 2 W. Bl. 820. Edson v. Fuller, 2 Foster, 183, 191. Moar v. Wright,
1 Venn. 57.
(6) A court of chancery treats the assignee of a contract, which is not ne-
gotiable, as the party in interest, and allows him to pursue his rights in such
court, in his own name.
(c) See Bac. Ab. Assignment, D. Addison on Con. C2d Amer. ed.) 982,
983. Legh v. Legh, 1 Bos. & Pul. 447. Welch v. Mandeville, 1 Wheat. 233
and 5 ib. 277. Littlefield v. Storey, 3 Johns. 425. Pass v. McRae, 36 Miss.
143. Dunn v. Snell, 15 Mass. 481. Riley v. Taber, 9 Gray, 373. Gardner
V. Tennison, 2 Cranch C C. Rep. 338.
(rf) Mosher v. Allen, 16 Mass. 451.
(e) See Corderoy's case, 1 Freeman, 312. Fenner v. Meares, 2 W. Bl.
1269. Surtees v. Hubbard, 4 Esp. R. 204. Crocker v. Whitney, 10 Mass.
316. Mowry v. Todd, 12 ib. 281. Lamar i;. Manro, 10 Gill & Johns. 64.
RoUison V. Hope, 18 Texas, 446. Warren v. Wheeler, 21 Maine, 484.
Clarke v. Thompson, 2 R. I. 146. Currier r. Hodgdon, 3 N. Hamp. 82.
Moar V. Wright, 1 Verm. 57. Lang v. Fiske, 2 Fairf. 385.
188 LAW OF CONTRACTS.
Union, an assignment of bonds or other contracts enables the
assignee to sue thereon in his own name. Such also is the
law of Scotland ; and the assignee of a Scotch bond may
maintain assumpsit in the courts of England, upon the im-
plied promise arising from the indorsement and assignment
to him. (a) By a statute in Ireland a judgment by confession
may be assigned ; and an action by the assignee of such judg-
ment may be maintained in his own name in the English
courts, (b)
By statutes in England certain bonds and deeds are made
assignable, and the assignee authorized to sue thereon in his
own name, to wit, bail bonds taken by sheriffs, (c) replevin
bonds, (d) railway bonds, (e) India bonds, (/) and admin-
istration bonds, (g-) And by a statute in New York, all ac-
tions at law are required to be brought in the name of the real
party in interest. (A) Railway bonds issued by corporations,
with coupons payable to bearer, are held by the supreme
court of the United States to be negotiable securities, and to
pass by delivery. If coupons are drawn so that they can be
separated from the bonds, they also are negotiable, and the
owner can sue thereon, without producing the bonds or being
interested in them. Thomson v, Lee County, 3 Wallace, 327.
And see 21 Howard, 539, 575. 8 Gray, 575.
An assignment to the king empowers him to sue in his
own name ; and assignment by him empowers the assignee
(a) Innes v. Dunlop, 8 T. R. 595.
(6) O'Callaghan v. Thomond, 3 Taunt. 82.
(c) PetersdorfF on Bail, 216. Hurlstone on Bonds, (Amer. ed.) 65. 4
Allen (N. B.) 182.
(d) Wilkinson on Replevin, 114, 115. Thompson v. Farden, 1 Man. &
Grang. 535 and 1 Scott N. R. 275.
(e) Vertue v. East Anglian Railways Co. 5 Exch. 280. In this case it
was held that an action on the bond, after it was assigned, could not be main-
tained in the name of the assignor.
(/) Hurlstone on Bonds, (Amer. ed.) 65.
(g) See Young v. Hughes, 4 Hurlst. & Norm. 76.
(A) See 4 Duer, 78. 2 Kernan, 626. 18 Barb. 512. But the same rights
of action that were assignable before that statute was passed, and no others,
are still assignable. By Brown, J. 18 Barb. 510.
OF THE CONSIDERATION. 189
to sue in his own name, (a) Of course, no promise is neces-
sary to charge the party. The consideration is the original
debt, which the law transfers to the assignee, and which, by
legal intendment, the party promised to pay to him, because
such is the party's liability. It follows that a promise by the
original debtor, made to the king's assignor, to forbear suing
out process, is without consideration and void ; as the assignor
has no power to retard the king's suit, (b)
The United States may sue in their own name on a claim
assigned to the government. But such assignment of a claim
barred by the statute of limitations gives it no new va-
lidity, (c)
Pay of officers in the British army and navy is not allowed
to be assigned, (d) So of seamen's wages, by a statute passed
in the reign of George the Second.
A note for a certain sum of money, " which may be dis-
charged in pork," has been held to be assignable, (e) But in
Green v. Williston, 3 Kerr, (N. B.) 58, it was held that the
promisor in a note payable in lumber was not bound to recog-
nize an assignment thereof, but that a delivery of the lumber
to the assignee would discharge the note. A bond or note
payable, in whole or in part, in personal services, is not as-
signable. (/)
(a) Bac. Ab. Prerogative, E. 3.
(6) Bowes V. Paulet, Cro. Eliz. 653 and Moore, 701.
(c) United States v. Buford, 3 Peters, 12.
(d) 2 Anstr. 533. 1 H. Bl. 627. 3 T. R. 682. 4 ib. 248.
(e) Thompson v. Armstrong, Breese, 23. See Chipman on Contracts for
the Payment of Specific Articles, as to the place, &c., of payment.
(/) Bothick's Adm'rs v. Purdy, 3 Missouri, 60. Halbert v. Deering, 4
Littell, 9. Marcum v. Hereford, 8 Dana, 1. Henry v. Hughes, 1 J. J. Marsh.
453. Ransom v. Jones, 1 Scammon, 291. Davenport v. Gentry's Adra'r, 9
B. Monroe, 429. In Haskell v. Blair, 3 Cush. 534, a written promise to pay
to H. " or bearer," on demand after a fixed day, a certain sum in work, was
held to be assignable, and the promisor was held liable to the assignee (sueing
in the assignor's name) who demanded payment of him, and he made no ob-
jection to the time when, nor to the place where, he was required to do the
work, nor to the person for whom it was required to be done. And see Cur-
rier V. Hodgdon, 3 N. Hamp. 82. Carleton v. Brooks, 14 ib. 149. Gushee v.
Eddy, 11 Gray, 505.
190 LAW OP CONTRACTS.
It seems to have been formerly supposed that a right of ac-
tion for a tort was not assignable. It was so said by Savage,
C. J., in Gardner v. Adams, 12 Wend. 297. And no assign-
ment of such right voluntarily made by the assignor has been
found in the English books. But it is held in New York,
that a right of action for torts that would by the English
statutes of 4 Edward 3d, c. 7, and 15 Edward 3d, c. 5, sur-
vive to executors and administrators, (a) may be voluntarily
assigned ; as conversion of goods, trespass for taking and car-
rying them away, &c. (b)
A right of action for a mere personal tort, as battery, slan-
der, seduction of a wife or servant, &c., is not, by the statutes
of Edward the Third, made to survive, and cannot be legally
assigned, (c) But a judgment recovered in such action may
be assigned, (d)
In Zabriskie v. Smith, 3 Kernan, 322, it was held that a
right of action for damages, caused to a firm by a false and
fraudulent representation of the solvency of a buyer of goods,
was not assignable; as such right would not survive to the
defrauded party's personal representatives. And in Thurman
V. Wells, 18 Barb. 500, a mere right of action for an unliqui-
dated and unrecognized claim against common carriers, aris-
ing ex delicto, was held not to be assignable.
(a) See Addison on Torts, 715, 1 Williams on Ex'rs, (4th Amer. ed.) 669
Sj- seq. and 1 Saund. PI. & Ev. (2d ed.) 1113, as to the injuries to personal
property for which a right of action survives.
(ft) McKee v. Judd, 2 Kernan, 622. Foy v. Troy & Boston Railroad Co.
24 Barb. 382. Purple v. Hudson River Railroad Co. 4 Duer, 74. Jackson
V. Losee, 4 Sandf. Ch. 381. People v. Tioga Common Pleas, 19 Wend. 73.
Hall V. Robinson, 2 Comstock, 293. Hudson v. Plets, 11 Paige, 183, 184.
And see Weire v. City of Davenport, 11 Iowa, 52.
(c) Benson v. Flower, W. Jon. 215. Howard v. Crowther, 8 Mees. &
Welsh. 601. Comegys v. Vasse, 1 Peters, 213, by Storj', J. Whitaker w.
Gavit, 18 Conn. 527, by Ellsworth, J. North v. Turner, 9 Serg. & R. 249,
by Gibson, C. J. Rogers v. Spence, 12 Clark & Fin. 720, by Lord Campbell.
Rice V. Stone, 1 Allen, 566. In tliis last case it was held that the Massa-
chusetts statute which provides that a right of action for assault and battery
shall survive did not render that right of action assignable.
(d) W. Jon. and 1 Allen, supra.
OF THE CONSIDERATION. 191
A right of action for a merely personal tort does not pass
by an assignment of a debtor's effects, under a bankrupt or
insolvent law. (a)
Accepting part in satisfaction of the whole.
A promise to take a less sum, in satisfaction of a greater,
where the greater sum is fixed and liquidated, or is ascertain-
able by merely arithmetical calculation, is without considera-
tion and void ; and after taking it and agreeing to discharge
the debtor, the creditor may recover the balance, {b) Aliter,
if a sealed acquittance be given, in satisfaction of the whole,
on receiving part, or if the debtor pays a less sum, either be-
fore the agreed day of payment, or at another place, and the
creditor receives it in full satisfaction, (c) Or if the creditor
receives some specific article, in satisfaction, though it is of
much less value than the whole sum due ; (d) or if he receives
a negotiable security ;(e) or the debtor's note indorsed by a
third person, as further security ; {/) or the note of a third per-
son, (g-) or an accepted draft on a third person, (h) Where
a judgment was recovered for over $1700, against an insol-
vent debtor, and the judgment creditor agreed to receive
$500 on the judgment and $100 for attorney's fees, which
(a) See Spence v. Rogers, 11 Mees. & Welsh. 191, affirmed in the House
of Lords, 12 Clark & Fin. 700. Sommer v. Wilt, 4 Serg. & R. 28. Mann's
Appeal, 18 Penn. State Rep. 249.
(6) Cumber v. Wane, 1 Strange, 426. Heathcote i\ Crookshanks, 2 T. R.
24. Fitch V. Sutton, 5 East, 232. Harrison v. Close, 2 Johns. 450. Good-
win V. Follett, 25 Verm. 386. Hall v. Constant, 2 Hall, 185. Pearson v.
Thomason, 15 Alab. 700. Harriman v. Harriman, 12 Gray, 341. Rising v.
Patterson, 5 Whart. 319. Daniels v. Hatch, 1 Zab. 391. The cases of com-
promise, ante, 177, were all of unliquidated and unacknowledged claims.
(c) Co. Lit. 212 b. Dalison, 49, pi. 13. Bowker y. Childs, 3 Allen, 434.
(d) Littleton, § 344. Co. Lit. 212 b. Perkins, § 749. Pinnel's case, 5
Co. 117.
(e) Sibree v. Tripp, 15 Mees. & Welsh. 23, qualifying the decision in Cum-
ber V. Wane, 1 Strange, 426.
(/) Boyd V. Hitchcock, 20 Johns. 76.
(g) Kellogg V. Richards, 14 Wend. 116. Brooks v. White, 2 Met. 283.
Smith V. Ballou, 1 R. L 496.
(h) Reid v. Hibbard, 6 Wis. 1 76.
192 LAW OF CONTRACTS.
sums were paid and a receipt in full given for the judgment, it
was held that satisfaction of the judgment should be ordered
to be entered, (a) " There must be some consideration," said
Lord Ellenborough (5 East, 232) " for the relinquishment of
the residue ; something collateral, to show a possibility of
benefit to the party relinquishing his further claim ; otherwise
the agreement is nudum pactum.'" And as the strict rule of
law may be urged in violation of good faith, it is not to be ex-
tended beyond its precise import; and whenever the technical
reason for its application does not exist, judges have been dis-
posed to take out of its application all those cases where there
was any new consideration, or any collateral benefit received
by the payee, which might raise a technical legal considera-
tion, although it was quite apparent that such consideration
was far less than the amount of the sum due. By Dewey, J
2 Met. 285.
By statute in Maine, no action can now be maintained on
a demand which has been settled by the payment of any sum
of money, or other valuable consideration, however small, (b)
If, on the faith of a creditor's agreement to accept a part
of his debt, in full satisfaction, a third person is induced to
become surety for the debtor, on the ground that he will be
discharged on easy terms ; or other creditors are induced to
relinquish their demands on the debtor ; the creditor who thus
agrees cannot recover the balance, as it would be a fraud on
the surety or other creditors. In some of this class of cases,
the plaintiff failed to recover the residue of his debt, because
his agreement had induced the debtor to make an assign-
ment of all his property, and a recovery would be a fraud on
him. (c)
(a) Harper v. Graham, 20 Ohio, 105.
(b) Weymouth v. Babcock, 42 Maine, 42.
(c) On this whole subject see 1 Smith Lead. Cas. (Gth Amer. ed.) 550 §•
seq. the note to the case of Cumber v. Wane. Steinraan v. Magnus, 11 East,
390. Butler v. Rhodes, Peake, 238 and 1 Esp. R. 236. Reay v. White, 1
Crompt. & Mecs. 748 and 3 Tyrw. 596. Good v. Cheesman, 2 B. & Ad. 328
Boyd V. Hind, 1 Ilurlst. & Norm. 946. Watkinson v. Inglesby, 5 Johns. 386.
Eaton V. Lincoln, 13 Mass. 424. Bac. Ab. (Bouvicr's ed.) Accord and Sat-
isfaction.
OF THE CONSIDERATION. 193
Executed Consideration.
There is, perhaps, no point of law, which students more
universally regard as arbitrary and unreasonable, as they find
it announced in the books, than the matter of executed con-
sideration. It is asserted, as if it were elementary doctrine, that
if the consideration be wholly executed and past, and do not go
along with the contract, it will not support a promise, unless
the consideration were executed at the request of the promisor :
Aliter, of a consideration executed in part only, (a) The
reason of this rule is seldom set forth with the proper clear-
ness. The suggestion in a note, ante, 164, as to the positions
laid down by certain writers in reference to pleading and the
forms of action, as if they were the abstract doctrines of the
law, is specially applicable to this point. And in the outset
it may be well to say that this rule as to executed considera-
tion is merely a rule of pleading, and is susceptible of an ex-
position which will show that it is reasonable, and that it is
also a necessary part of the system of enforcing and defend-
ing the rights of parties in the action of assumpsit.
In the case of Hunt v. Bate (b) the declaration averred that
the defendant promised to save the plaintiff harmless, in con-
sideration that he had become bail for the defendant's servant.
Judgment was arrested. So where the declaration alleged
that the defendant promised to pay the plaintiff five pounds,
in consideration that the plaintiff /mc? delivered to him twenty
sheep, (c) So of a promise by a lessor to give a new lease,
in consideration that the lessee had incurred expense in de-
fending his title under the old lease, (d) So of a promise
to lend the plaintiff ten pounds upon request, in considera-
tion that the plantiff had formerly lent the same sum to the
(a) Doctor & Student, c. xxiv. 1 Rol. Ab. 11. Bac. Ab. Assumpsit, D.
1 McCord, 515. 1 Lil. Ab. 299. 1 Dane Ab. 119. 10 Pick. 500. 3 Met. 158.
7 Cowen, 358. 2 Conn. 404. 1 Blackf. 247. 1 Greenl. 128. 11 Ad. & El.
438,451.
(b) Dyer, 272, a.
(c) Jeremy v. Goochman, Cro. Eliz. 442.
(rf) Moore v. Williams, Moore, 220.
13
194 LAW OF CONTRACTS.
defendant, (a) So of a promise to repay sixty pounds, in con-
sideration that the plaintiff had before paid that sum to the
defendant's creditor in satisfaction of the debt, (b) So of
promises in consideration that the plaintiff had sold and de-
livered goods, lent money, &c., to the defendant, or had done
work for him, or had sold and conveyed a farm to him. (c)
All these were cases within the first part of the rule above
mentioned, that is, cases where the consideration was wholly
executed and past, and not at the request of the promisor.
If, however, the consideration be executed at the promisor's
request, it is suflScient to support a promise. This was sug-
gested as the remedy which would have cured the defect in
the case of Hunt v. Bate, above cited from Dyer,* 272, a ; and
in the next page of that book an anonymous case is reported,
in which a promise to pay <£20 "in consideration that the
plaintiff, at the special instance of the defendant, had taken to
wife the cousin of the defendant," was enforced at law, " al-
though the marriage was executed and past before the under-
taking and promise." These cases were determined in 10
Eliz. Seventeen years afterwards (27 Eliz.) the question
arose in the very case of becoming bail for a third person at
the defendant's request, and was decided for the plaintiff, (d)
" The request " said Periam, J., " is a great help in the case."(e)
Afterwards, it was settled by numerous decisions, that in all
other cases, where the consideration was executed and past at
the time of the promise, if it were executed (that is, if the
services, &c., were rendered) at the promisor's request, it was
sufficient to support the promise and maintain the action. (/)
(a) Dogget V. Vowell, Moore, 643.
(h) Barker v. Halifax, Cro. Eliz. 741.
(c) Oliverson v. Wood, 3 Lev. 366. Hayes v. Warren, 2 Strange, 933,
W. Kelynge, 117 and 2 Barnanl. B. R. 55, 71, 140. Comstock v. Smith,
7 Johns. 87. Parker v. Crane, 6 Wend. 649. Leland v. Douglass, 1 Wend.
492. Stanhop's case, Clayton, 65.
(d) Sydenham & Worlington's case, Godb. 31, Cro. Eliz. 42 and 2 Leon.
224.
(e) Godb. 32.
(/) Hardres v. Prowd, Style, 465. Lampleigh v. Braithwate, 1 Brownl. 7,
Moore, 8fi6 and Hob. 105. Bosden v. Thinn, Cro. Jae. 18 and Yclv.'40.
Townsend v. Hunt, Cro. Car. 408. Contra, Sandhill v. Jenny, Dyer, 212 b.
in margin.
OF THE CONSIDERATION. 195
There is not much of good sense or of equity in the ab-
stract doctrine that an executed consideration will not support
a promise. Wilmot, J., (a) said, " many of the old cases are
strange and absurd ; so also are some of the modern ones,
particularly that of Hayes v. Warren." He also said that the
doctrine " has been melting down into common sense, of late
times." The case of Hayes v. Warren is questioned also by
Mr. Lawes, (b) for the reason stated post. 199. It will be
found, however, upon an examination of the history of the
doctrine in question, that there has been no relaxation of it •
and that the case of Hayes v. Warren stands on the same
grounds as the other cases, and could not have been decided
differently without violating long established principles, unless
the declaration, as Mr. Lawes supposed, sufficiently showed
the defendant's request, (c)
It is one of the elementary principles of pleading, in the
action of assumpsit, that the declaration must state a valid
consideration for the promise which the plaintiff seeks to
enforce.
In most of the cases that have been cited, the plaintiff
failed by reason of his bad pleading. His real case was meri-
torious and legal, but the cause stated in his declaration was
without consideration. In Hunt v. Bate, there was in fact
no consideration which the law regards. The plaintiff's be-
coming bail was a transaction inter alios, neither beneficial to
the defendant nor inconvenient to the plaintiff, at the instance
of the defendant. There was, therefore, nothing to support
the promise. Indeed, the court that decided the case say,
" there is no consideration wherefore the defendant should be
charged for the debt of his servant, for he did never make re-
quest," &c. The case was decided, not on the ground of an
executed consideration, but of no consideration.
(a) 3 Bur. 1671,1672.
(&) Lawes PI. in Assump. (Amer. ed.) 334, 335. And see 2 Binn. 592.
(c) The declaration, in Hayes v. Warren, as appears in 2 Barnard. B. R.
140 and W. Kelynge, 120, alleged that the plaintiff had done and performed
divers works and labors for the defendant, who afterwards promised to pay
for them as much as they were worth ; there being no averment that the
works were done at the defendant's request. The defendant was defaulted,
but judgment was arrested on his motion.
196 LAW OP CONTRACTS.
The other cases that have been cited rest on the same
ground. Some of the earliest of them were decided on the
authority of Hunt v. Bate, and on the notion, not at all ex-
plained, of an executed consideration.
Cases mentioned ante, 183, 184, have settled the doctrine
that a voluntary courtesy, or mere gratuitous service, is not a
consideration that will support an implied promise. The law
is the same, in many instances at least, in case of an express
promise, (a)
The true and the only satisfactory reason for regarding as
void a promise on an executed consideration, when there was
no previous request, is, that it does not appear that there was
any legal consideration for such promise. The consideration
may have been a gratuitous service or voluntary courtesy.
In declaring on a promise made upon such consideration, no
valid consideration is stated, unless a previous request is al-
leged. But if the consideration is executed at the request of
the promisor, the promise " is coupled to the consideration
by the request," and is not merely a naked promise. The
previous request is a sufficient consideration for the subse-
quent promise ; the plaintiff has incurred a loss, damage, or
inconvenience, at the instance of the defendant, which, as has
been before seen, is (with reference to the rules of pleading)
one of the requisites of a consideration for a promise, (b)
The settled forms of pleading in assumpsit require, for this
reason, that a declaration on a promise made upon a con-
sideration wholly executed and past should allege that the
debt was incurred, the service rendered, &c., at the defendant's
request. A count for money had and received, money lent,
and for goods sold and delivered, are exceptions to this ru]e.(c)
" An executed consideration," said Baron Maule, 5 Mees.
(a) 3 Pick. 207. 7 Conn. 51. 4 Munf. 273.
(h) Lawes PI. in Assump. 65, 66. 1 Saund. 264, note (1). Hob. 106. 1
Blackf. 247.
(c) Lawes PI. in Assump. 334. 1 Saund. 264, note (1). 1 Man. &
Grang. 266, note. 1 Dowl. & Lowndes, 984. Patteson & Williams note (z)
1 Saund. (5th ed.) 264, and opinion of Bridgman, C. J., and Page, J., in 2
Barnard. B. R. 71, as to a count for goods sold and delivered.
OF THE CONSIDERATION. 197
& Welsh. 249, " is no consideration for any other promise
than that which the law would imply."
The ground of this doctrine of executed consideration, as
stated in Bacon's Abridgment, and elsewhere, is this : " It is
not reasonable that one man should do another a kindness, and
then charge him with a recompense. This would be obliging
him whether he would or not, and bringing him under an ob-
ligation without his concurrence." (a) This is a very satisfac-
tory reason for not charging a party on an implied promise, in
most cases of this kind ; but it does not seem, at first sight, to
reach the case of an express promise recognizing the services
and their value to the promisor, nor those cases where there is
a legal and moral duty antecedent and paramount to the will
of the party, from which the law raises a promise even against
his protestations. The form of declaring is, however, the
same, whether an express or an implied promise is relied on ;
and it will presently be seen that a previous request may be
implied or inferred from circumstances, as well as a subse-
quent promise. There are cases in which an express request
is necessary to support the action, as there are cases in which
an express promise must be shown. But as the summary
forms of declaring in general assumpsit are the same in all
cases, and as it does not necessarily appear, on the face of the
declaration, that a promise on an executed and past considera-
tion is legally binding, without a previous request, such dec-
larations are held to be ill. {b) In declaring on a contract
upon an executory consideration, it is not necessary to allege
it to have been at the defendant's request ; because, in all
cases where a request is necessary, it is necessarily implied :
As if A. promise B. to pay him $1000 if he will build a house,
the promise implies that A. requested B. to build it ; and so
of similar cases, (c)
(a) Bac. Ab. Assumpsit, D. 1 Saund. 264, note. 1 Caines, 585. 1 Leigh's
Nisi Prius, 36.
(b) See Stokes v. Lewis, 1 T. R. 20. Naish v. Tatlook, 2 H. Bl. 322. 3
"Wooddeson, 142, 143.
(c) Lawes PI. in Assump. 85. See tlie different forms of declaring, in
general and special assumpsit, stated by Mr. Lawes in PI. in Assump. 1, 2.
198 LAW OF CONTRACTS.
In Hicks v. Burhans (a) it is said, that " if a promise founded
on a past consideration be not laid to have been on request, a
request may be implied." And in Comstock ik Smith, (b) it
is said that it does not seem requisite, in every case of executed
consideration, to lay a request in the declaration. The same
remark is repeated in Doty v. Wilson, (c) These, however, are
obiter dicta, and are questioned in the notes to the second edi-
tions of 1 Caines, 585, and 7 Johns. 88.
It is laid down expressly by Serjeant Williams (d) that a
request must be averred. It is strongly implied in what is
said by Kent, J., 1 Caines, 585, and is regarded as essential
by the authors of the able note in 3 Bos. & Pul. 249, and in
3 Morgan's Vade Mecum, 107, 122. Besides ; the forms of
pleading (which Buller, J., says (e) are evidence of what the
law is) contain this allegation. (/)
In Church v. Church, cited in T. Ray. 260, and in Franklin
V. Bradell, Hutton, 84, and perhaps one or two other ancient
cases, this allegation was not deemed indispensable after ver-
dict ; and it was intimated by the court, in Hayes v. War-
ren, (g) which has already been referred to, that a verdict
might have cured the defect in that case. (//) It is however
to be observed, that in several of the earliest cases on this sub-
ject, the objection was raised after verdict, and was sus-
tained, (i) There are cases in which it has been held that if
the plaintiff declare that the defendant, being" indebted to the
plaintiff (for goods delivered, &c.) in consideration thereof
promised, &c., it is sufficient, without alleging a request of
the defendant ; on the ground that the " being indebted " im-
plies that the consideration was executed at the request of the
(a) 10 Johns. 24.3. (b) 1 Johns. 88.
(c) 14 Johns. 382.
Id) 1 Saund. 264, note. See also 1 Greenl. 128. 6 Wend. 649. '
(e) 3 T. R. 161.
(/) See forms of declarations in actions of assumpsit in 2 Chit. PI. (6th
Amer. ed.) 37 §• seq.
(g) 2 Strange, 933.
(h) In Pennsylvania, a verdict is held to cure this defect. Stoever v. Sto-
ever, 9 Serg. & R. 434.
(0 Dyer, 272. Cro. Eiiz. 412, 741.
OF THE CONSIDERATION. 199
defendant ; or that the consideration is a continuing one, and
not wholly executed and past, (a) Mr. Lawes (b) thinks that
the present summary form of declaring, in most of the counts
in indebitatus assumpsit, necessarily implies a request, or an
assent to the debt contracted ; and that as the old cases were
decided before this form was adopted, they did not warrant
the decision in Hayes v. "Warren, where the declaration was in
the modern form. Still he asserts on the preceding page, that
" it is usual and proper in indebitatus assumpsit to state the
cause of the debt as having taken place at the special in-
stance and request of the defendant." And in page 65, he
asserts the necessity of alleging a request, and gives the rea-
son already stated, namely, otherwise " non constat that it was
not done of the plaintiff's own accord, and without the de-
fendant's order or desire, in which case it is no good consider-
ation for a subsequent promise."
The law is probably thus : The allegation of " being in-
debted " is substantially good, without stating a request, but
not technically and formally correct ; there being no debt, by
legal intendment, unless for something done by request. In
a count for goods sold and delivered, or for money lent, it
might perhaps be said that a sale or a loan necessarily imports
a request; but the precedents all contain an averment of
it. (c) In a count on an insimul computassent, the promise is
alleged to be in consideration of being found in arrear and in-
debted upon an accounting with the plaintiff of and concern-
ing moneys before owing and due, and in arrear and unpaid, {d)
" The stating of an account is regarded as a consideration
(a) Hocl) may be taken
to illustrate this doctrine. The plaintiff declared that the de-
fendant married a maid who sojourned in the plaintiff's house,
and " did then desire the plaintiff that his wife might still
continue in the house a year longer, to which the plaintiff
agreed ; and afterwards, about the middle of the year the
defendant promised, in consideration that the plaintiff would
suffer the wife to continue in the house for the whole of the
year, he would pay the plaintiff for the whole year, as well
the past as the future." This, as alleged in pleading, is a
clear case of an executory consideration. And if it had been
an executed one, a previous request is alleged. But if it had
been alleged that the defendant, in consideration that the
plaintiff had permitted the wife to be in his house for six
months, promised to pay therefor and for her subsequent resi-
dence there for six subsequent months, at the defendant's re-
quest, a good consideration would have appeared, namely, one
(a) 3 Canipb. 298. See ante, 144.
(h) 3 Bulst. 187 and 1 Rol. Rep. 381. See also 1 Lil. Ab. 114. 3 Woodde-
son, 144. Merriwether's case, Clayton, 43.
202 LAW OF CONTRACTS.
executed in part only, though that part was not at the request
of the defendant.
In Pearle v. Unger (a) the plaintiff declared that the de-
fendant, in consideration that the plaintiff had occupied his
land, and paid him rent while he occupied it, promised to save
the plaintiff harmless during the term, as well for the years
past as to come, and aEeged a distress of his cattle before the
promise. The defendant was held liable, on the ground that
as the defendant had paid and was to pay rent, there was a
good consideration for the promise. Anderson, J., in Godb.
31, said that although where the contract is determined, a
promise is void, yet it is " otherwise upon a consideration of
marriage, for that is always a present consideration, and al-
ways a consideration, because the party is always married."
"Walmsley, J., in Cro. Eliz. 741, said, " an assumpsit in con-
sideration that you had married my daughter, to give unto
you £40 was good ; for the affection and consideration al-
ways continue." These are dicta only ; but the case of Marsh
V. Kavenford (b) was adjudged on the same principle.
There are cases upon consideration executed in part only
that are not very intelligible. The doctrine seems sometimes
to have been misapplied, or at least greatly strained, for the
purpose of maintaining an apparently meritorious action. It is
not possible to ascertain, in every instance, what form of dec-
laration was adopted. In some cases, the consideration seems
to have been stated as wholly executed, but it further appeared
from the facts alleged, or from necessary inference from them,
that the whole benefit of the contract had not been enjoyed
by the promisor, which circumstance was regarded as suffi-
cient to take the case out of the rule applied to considerations
wholly executed and past. In the summary form of declar-
ing in indebitatus assumpsit, in use at this day, such cases
cannot arise. The record would not furnish the court with the
means of ascertaining that the consideration was executed in
part only. A special declaration would be necessary, in order
to enforce a promise in such case, (c)
(a) Cro. Eliz. 94 and 1 Leon. 102. Sec also .Jones v. Clarke, 2 Bulst. 73.
(b) Cro. Eliz. .59 and 2 Leon. IJl.
(c) See cases on this point collected in Com. Dig. Assumpsit, B. 12. Bac.
OP THE CONSIDERATION. 203
As the distinction between executed and executory con-
siderations is a matter of pleading, and respects only the
modes of averment in a declaration, the rule seems to be this,
namely, if the consideration appears on the declaration to be a
continuing consideration, it is substantially good, though a
request of the party be not alleged ; but if the consideration
appears to be wholly executed and past (that is, if there is no
continuing consideration, nor averment that the party is at
present indebted) an averment of a request is indispensable ;
and if the consideration is executory, request and perform-
ance must both be alleged.
This, however, more properly belongs to the subject of
pleading, and has been mentioned here only for the purpose of
explaining the doctrine of executed consideration.
As there will probably be no occasion to advert hereafter to
the fictions adopted in setting forth the plaintiff's claim in
declarations in the action of assumpsit, it may not be amiss
to present, in this place, a succinct view of those fictions, and
of the reasons on which they are founded.
The usual action on a simple contract, in old times, was
debt. The declaration, in that action, averred in substance
that the defendant owed the plaintiff and thereupon an ac-
tion had accrued, &c. No promise was alleged ; for no prom-
ise was necessary. But the defendant was allowed to wage
Ab. Assumpsit, D. 1 Powell on Con. 349 §' t^eq. Warcop v. Morse, Cro.
Eliz. 138. It may be worthy of notice, that Chief Baron Comynt!, in his Di-
gest, (ubi sup.) has placed under the head of " Consideration executed in
part," not only the class of cases above referred to, but also those in which
the consideration is alleged to be that the promisor had accounted and was
found in arrear. The cases in which the consideration is the " being in-
debted," would seem, on the same principle, to fall into this class ; and ac-
cordingly Comyn and Chitty place the case of Hodge i'. Vavisor (above
cited) under this head. 1 Comyn on Con. (1st ed.) 25. Chit, on Con. (1st
Amer. ed.) 17, (10th Araer. ed.) 61. It is not easy, perhaps, to understand
the reason of Chief Baron Comyns's arrangement, unless by " in part" he
meant cases where the original consideration was executed, but there is a still
continuing consideration for a promise, and so not wholly executed, in the
sense generally attached to the words functu.t officio.
204 LAW OF CONTRACTS.
his law. To avoid this wager of law, a new form of action
was devised, to wit, the action of assumpsit, (a) in which a
promise of the defendant was alleged, and was indispensable.
A declaration, which did not aver such promise, was insuffi-
cient even after verdict; and the law is the same at this day.
The promise declared on is always taken to be express. In
pleading, there is no such thing as an implied promise. But
as no new rule of evidence was required in order to support
the new action of assumpsit, it being necessary only to prove
a debt, as was necessary when the action was debt, the ficti-
tious doctrine of an implied promise was introduced ; and for
the sake of legal conformity, it was held, when the defendant's
legal liability was proved, that the law presumed that he had
promised to do what the law made him liable to do.
As no gratuitous promise binds the promisor, (a considera-
tion being necessary to the validity of a simple contract,) and
as a promise on an executed consideration does not show that
it was not gratuitous, unless it be averred either in express or
equivalent terms, to have been executed at the request of the
promisor, it has always been held necessary to allege such
request in the declaration. But here again no new rule of
evidence was required in order to support the action. The
defendant's request was therefore held to be implied in those
cases where he was legally liable to the plaintiff as he would
have been in the action of debt.
A single example will illustrate these two fictions. A
husband is bound by law to support his wife ; and if he
wrongfully discard her, any person may fuinish support to
her, and recover pay therefor of the husband. In the action
of debt, there would be no necessity to allege a promise in
such case. But the husband might wage his law, and de-
fraud the plaintiff. In the action of assumpsit, the furnishing
of the supplies must be alleged to have been by the plaintiff
at the husband's request, and a promise of the husband to pay
must also be alleged. But proof of the actual facts supports
both these allegations. The husband, being in law liable to
(a) Gilbert on Debt, 364. Gould PI. c. iii. § 19. Comyn on Con. part iv.
chaj). iii.
OF THE CONSIDERATION. 205
pay, is held to have (impliedly) made both the request and the
promise. In this instance, the legal maxim is well supported,
injictione juris subsistit cequitas.
In other instances, the request only, or the promise only is
implied by law, according to the exigence.
Consideration arising from third persons.
The position is often found in the books, that where a promise
is made to one for the benefit of another, he for whose benefit
it is made may bring an action for the breach of it ; and Com.
Dig. Action upon the case upon Assumpsit, E. a. is repeatedly
referred to, in this country, in support of that position. It will
be found, however, that the decisions cited by Comyns [a) have
ceased to be law in England. Thus, where H. was indebted to
the plaintiff, and the defendant promised to pay H.'s debt to
the plaintiff, if H. would assign his interest in a house to the
defendant, and he assigned accordingly, (or offered to assign,
which was tantamount in law,) yet it was held that the plaintiff
could not recover on the promise, because he was a stranger to
the consideration, {h) It had previously been decided, on similar
ground, that the plaintiff could not recover in a cass where P.
was indebted to him and also to the defendant, and a stranger
was indebted to P., and the defendant promised to pay P.'s debt
to the plaintiff, if P. would allow him (the defendant) to sue
the stranger ; although the defendant did sue the stranger and
recover the debt, (c) So where a declaration alleged that
W. owed the plaintiff £15, and that in consideration thereof,
and that W., at the defendant's request, had promised the de-
fendant to work for him and leave the amount of his wages
in the defendant's hands, the defendant promised to pay the
plaintiff the said sum of Xlo, and the declaration also averred
that W. performed his part of the agreement, it was held that
the action could not be maintained, as the plaintiff was a
(a) Bafeild o. Collard, Aleyn, 1. Dutton v. Poole, 1 Vent. 318, 2 Lev.
211 and T. Jon. 102. Sadler v. Paine, Savile, 23. Oldham v. Bateman, 1
Rol. Ab. 31, pi. 8.
(V) Crow V. Rogers, 1 Strange, 592.
(c) Bourne v. Mason, 1 Vent. 6 and 2 Keble, 454, 457, 527,
206 LAW OP CONTRACTS.
stranger to the consideration, and tiie case must be governed
by that of Crow v. Rogers, {a)
There are, however, many cases of simple contracts in which
it has been decided, that where a person made a promise to an-
other, for the benefit of a third, the third might maintain an ac-
tion upon it, though the consideration did not move from him.
But this was never allowed in cases of sealed contracts inter
partes. In those, the action must be brought by the obligee
or covenantee, though the contract be to pay, &c., a third per-
son, {b) Courts of chancery formerly compelled the obligee,
&c., to sue at law, if necessary for the benefit of the party in
interest, and at his promotion ; (c) but the party in interest, at
this day, may himself sue in chancery on such contract, {d)
As to a simple contract, one of the earliest cases in which
the party for whose benefit a promise was made maintained
an action thereon, is Sadler v. Paine, Savile, 23, where the
plaintiff had conveyed land to the defendant, who afterwards,
on a valid consideration, promised D. (a kinswoman of the
plaintiff, whom he employed to negotiate the contract) to re-
convey the land to the plaintiff. It was held that the action was
rightly brought by the plaintiff for a breach of this contract.
The promise, however, was regarded by Barons Shute and
Manwood, as made to the plaintiff himself, on the ground, in
part at least, that D. was his agent previously authorized. So
in Legat's case. Latch, 206, an action was sustained on a
promise made, as was alleged in the declaration, " to the plain-
tiff's attorney, in behalf of the plaintiff." These cases were
probably decided on the ground that the promisee in each was
the agent of the plaintiff, and that the promise, in legal effect,
was made to (the principal) the plaintiff.
{a) Pric" V. Easton, 4 B. & Ad. 433 and 1 Nev. & Man. 303. And see
Williams on Pleading, 45.
{I)) Scudamore v. Vandenstene, 2 Tnst. 673. Rolls v. Yate, Yelv. 177 and
1 Bulst. 25. Offly V. Warde, 1 Lev. 235. Sandford v. Sandford, 2 Day, 559.
Sanders v. Filley, 12 Pick. 554. Hinkley v. Fowler, 15 Maine, 285. John-
son V. Foster, 12 Met. 167. Northampton v. Elwell, 4 Gray, 81.
(c) Gary, 20.
(c/) Ward r. Lewis, 4 Pick. 523. Crocker v. Higgins, 7 Conn. 342.
OP THE CONSIDERATION. 207
Mr. Hammond, in his Treatise on Parties to Actions, 7 Sf
seq., supposed that the only ground on which the decisions on
this point can stand, is, ihat a promise to A. for the benefit of
B. is made to A. as the agent of B., and thus the consideration
moves from B., and that the action should therefore be brought
in his name ; and that all the cases, (hereafter to be cited)
which do not conform to this view of the doctrine, are at vari-
ance with the original principle of law, that the party giving
the consideration is the only person privy to a simple contract ;
or, in other words, that the legal interest in such contract re-
sides only with the party from whom the consideration moves.
In the case of Bourne v. Mason, 1 Vent. 6, 7, the counsel
for the plaintiff cited a case, in which a promise to a physician
that if he did a certain cure, the defendant would give him a
certain sum, and also another sum to his daughter ; and it was
held that the daughter might maintain an action for the sum
promised to her. To which it is there said the court agreed ;
" for the nearness of the relation gives the daughter the benefit
of the consideration performed by her father." Nearness of
relation, as between parent and child, was also mentioned by
the court in Button v. Poole, 2 Lev. 211, 212, and 1 Vent.
333, as giving the child a right of action on a promise made
to a father for the child's benefit. And Shaw, C. J., in 2 Met.
402, said that this relation might have had some influence in
the decision of the case of Felton v. Dickinson, 10 Mass. 287.
But there were several cases, prior to that of Bourne v. Mason,
in which a child maintained an action on a promise for his
benefit, made to the father, (a) or a nephew on a promise,
made for his benefit, to an uncle, {h) yet nearness of relation
was not mentioned as a reason for such decisions, (t) And in
Tweddle v. Atkinson, 1 Best & Smith, 393, it was held that
nearness of relation, as between father and son, did not au-
thorize a suit by the son, on a promise made for his benefit.
(a) Levet v. Hawes, Cro. Eliz. 619, 652. Pine v. Norish, cited in T. Jon.
103.
(6) Oldham v. Bateman, 1 Rol. Ab. 31, pi. 8.
(c) Thomas's case, Style, 461. Bell v. Chaplain, Hardr. 321. Provender
V. Wood, Hetley, 30. Hadves v. Levit, ib. 176.
208 LAW OF CONTRACTS.
Wightman, J., there said, " it is now established that no
stranger to the consideration can take advantage of a con-
tract, although made for his advantage."
The leading English case on this subject is Button v.
Poole, (a) where the defendant promised a father, who was
about to fell timber for the purpose of raising a portion for his
daughter, that if he would forbear to fell it, he (the defen-
dant) would pay the daughter XIOOO. The daughter main-
tained an action on this promise. And, as already seen, that
was not the first like adjudication of this point, though it was
the first in which the point appears to have been fully dis-
cussed in argument. But since the cases of Price v. Easton
and of Tweddle v. Atkinson, above cited, were decided, it seems
that it must be understood that the case of Dutton v. Poole,
and all like decisions are no longer law in England, and that
the rule is there now settled, that no one can maintain an ac-
tion upon a promise, unless the consideration thereof moved
fi:om him, except in certain cases of actions for money had
and received, now to be mentioned.
Where A., the debtor of B., sent money to C, and after-
wards informed him that it was intended to be paid to B., and
C. promised so to pay it, and this was communicated to B., it
was held that on C.'s failure so to pay, B. might maintain
an action against him for money had and received, (b)
Patteson, J., said, the rule of law required a consideration
moving from the plaintiff in all cases, " though in an action
for money had and received a direct consideration from the
plaintiff is seldom shown." The English law on this subject
is stated, in Addison on Con. (5th ed.) 633, 634, to be thus :
" The mere circumstance of money having been paid by a
principal to his agent, with directions to pay it to a third per-
son, imposes no liability upon the agent to such third person,
unless there is an express or implied assent on the part of the
(a) 1 Vent. 318, 332, T. Ray. 302, 2 Lev. 210, 3 Kuble, 786, 814, 830, 836,
T. Jon. 102, and 1 Freeman, (2d ed.) 471 and note.
(b) Lilly r. Hays, 5 Ad. & El. 548, 2 Har. & Woll. 338 and 1 Nev. & P.
26. And see Walker v. Rostron, 9 Mees. & Welsh. 411. Noble v. National
Discount Co., 5 Ilurlst. & Norm. 225.
OF THE CONSIDERATION. 209
agent to pay the money according to the directions he has
received. The mere receipt of the money by the agent is no
evidence of an implied assent to apply it to the purpose for
which it was professedly remitted to him. He holds the
money for the use of the remitter; the privity of contract
is between him and his principal, and not between the agent
and such third party, until by some act done, or by some en-
gagement entered into with the person who is the object of
the remittance, the agent has consented to appropriate the
money to his use." And on page 951, it is said, that " in all
cases where money is sent to one person to be paid by him to
another, to enable the person who is the object of the remit-
tance to maintain an action against the remittee to recover the
amount transmitted to him, there must be an express promise
or assent on the part of the latter to pay over the money to
the former, or hold it for his use."
Though this English rule has been adopted and applied by
the supreme court of Georgia, (a) yet a different rule has been
repeatedly applied by other courts in this country. It has
been held that when a principal puts money or property into
an agent's hands, to be appropriated for a third person's bene-
fit, and the agent thereupon promises the principal so to appro-
priate it, the third person may maintain an action against the
agent, without any previous communication with him. (b) It
has also been held that where money was remitted to an
agent to be paid by him to a third person, the agent was
answerable to such person, in an action for money had and
(a) Trustees of Howard College v. Pace, 15 Georgia, 486. See also
Ephraims v. Murdock, 7 Blackf. 10.
(b) By Shaw, C. J., 2 Met. 402. TVeston v. Barker, 12 Johns. 276,
Spencer, J., dissenting. Ellwood v Monk, 5 Wend. 235. Delaware and
Hudson Canal Co. v. Westchester County Bank, 4 Denio, 97. Lawrence v.
Fox, 20 N. Y. Rep. 268. Fleming v. Alter, 7 Serg. & R. 295. Keller v.
Rhoads, 39 Penn. State Rep. 513. Uraughan v. Bunting, 9 Ired. 10. Brown
V. O'Brien, 1 Richardson, 268. Bohanan v. Pope, 42 Maine, 93. Fetch v.
Taylor, 13 Pick. 136. Carnegie v. Morrison, 2 Met. 381. Arnold v. Lyman,
1 7 Mass. 400. In this last case, H. transferred choses in action and goods to
L. who, in consideration thereof promised to pay a debt of a specified amount
due from H. to A., and A. maintained an action against L. on this promise.
But where property was assigned, and the assignees promised, in consideration
14
210 LAW OF CONTRACTS.
received, though he had never consented so to pay it. (a) And
it seems that by the old law of England, a person receiving
property from A., to be applied to the use of B., was answer-
able to an action by B., without any promise to him. (b)
The fluctuation of decisions in England, on this subject
of a consideration arising from third persons, has been the
cause of opposite decisions in this country. In some of the
state courts, the cases of Bourne v. Mason and Crow v.
Rogers (cited ante, 205) have been supposed to furnish the
authoritative rule, and have been followed, (c) Other courts
seem to have supposed that those cases were overruled, or at
least that they did not furnish the true rule of law ; but
that such rule was to be found in Com. Dig. Action upon
the Case upon Assumpsit, E. a. in Vin. Ab. Action of As-
sumpsit, Z., and in the opinions expressed by Lord Holt, 1 Ld.
Raym. 368, 369, by Lord Mansfield, 1 Doug. 146 and Cowp.
443, and by Buller, J., 1 Bos. & Pul. 101, note. These and
similar authorities, said Shaw, C. J., 2 Met. 405, no doubt had
their influence in settling the law in Massachusetts, before
the period (1804) at which the state reports commence. The
first decision on this subject, in Massachusetts, is Felton v.
Dickinson, 10 Mass. 287, where a son maintained an action on
a promise, made for his benefit, to his father. Then followed
several actions, (which are cited ante, 209, note 6,) that
were maintained on the ground that the defendants had
received money, goods or choses in action, to be applied to
the use of the plaintiffs. The last case was Brewer v. Dyer, 7
Cush. 337, where A., a lessee by indenture, without assigning
the lease, put B. into possession of the demised premises, on
thereof, to pay all the debts of a certain corporation, and there was no speci-
fication of its creditors, nor of the amount of their dues, it was held that no
such creditor could maintain an action against the assignees. Dow v. Clark, 7
Gray, 198. And see Fairlie v. Denton, 8 Barn. & Cres. 395 and 2 Man. &
Ryl. 353.
(a) Hall u.Marston, 17 Mass. 575. But see 15 N. Hamp. 135, 136.
(b) Dishorn v. Denaby, 1 D'Anv. Ab. 64. Starkey o. Mill, Style, 296.
(c) Blymire v. Boistle, 6 Watts, 182. Morrison v. Beckey, ib. 349. Ow-
ings Ex'rs v. Owings, 1 Har. & Gill, 484. Ross v. Milne, 12 Leigh, 204. But-
terfield v. Hartshorn, 7 N. Hamp. 345. Warren v. Batchelder, 15 ib. 129.
OF THE CONSIDERATION. 211
being promised by him that he would pay the rent to the
lessor ; and the lessor maintained an action against B. on
this promise. The court have since declined to extend this
doctrine to any new case, and have decided that on a prom-
ise, made to the seller by the buyer of an equity of redemp-
tion, to secure and cancel the mortgage, with the note for
which it was given, no action lies by the mortgagee, (a)
Where it is held that be for whose benefit a promise is
made to another may maintain an action thereon, it is also
held that he to whom the promise is made may maintain
an action. Either of them, say the books, may bring the
action, (b) It was said in Hardr. 321, that where a promise
is made to a father for the benefit of his son, the declaration
must be upon a promise made to the father, though the son
bring the action. But it is not perceived how a party can
recover in assumpsit unless he alleges a promise to him-
self. And Eyre, C. J., 1 Bos. & Pul. 102, said that « in the
case of a promise to A. for the benefit of B., and an action
brought by B., the promise must be laid as being made to
B., and the promise actually made to A. may be given in
evidence to support the declaration." But see 17 Verm. 250.
Consideration which a party cannot perform.
To support a contract, the consideration thereof must be
such, when the contract is made, as the party can physically
and legally perform, (c) " Every person," said Lord Kenyon,
3 T. R. 22, " who, in consideration of some advantage, either
to himself or another, promises a benefit, must have the power
of conferring that benefit up to the extent to which that benefit
professes to go ; and that not only in fact but in law."
(a) Mellen v. Whipple, 1 Gray, 317. See also Millard v. Baldwin, 3 Gray,
484. Field v. Crawford, 6 Gray, 1 1 7.
(6) Hardr. 321. Aleyn, 1. Hammond on Parties, 9. 2 Greenl. Ev.
§ 109. 7 Gush. 340, 341. 42 Maine, 93.
(c) See Grotius, Book II. c. xi, § 8. PuflTendorf, Book III. c. vii, §§ 1, 3-10.
Rutherforth, Book I. c. xii, § 7. 1 Powell on Con. 160 §• seq. 178, 179. 3
Chit, on Law of Com. & Manuf. 100. Chit, on Con. (10th Amer. ed.)
54-56.
212 LAW OP CONTRACTS.
Few cases are to be found, in which a promise has been
held void on the mere ground that the consideration was not
in the promisor's power legally to perform. In Harvy v.
Gibbons, 2 Lev. 161, where the defendant promised to repair
the plaintiff's barge, in consideration that the plaintiff would
discharge him of .£20, due from him to a third person, judg-
ment for the plaintiff was reversed, because he could not dis-
charge a debt to another. And in Nerot v. Wallace, 3 T. R.
17, where the friend of a bankrupt promised to pay his as-
signees all such sums as the bankrupt had received on a
certain partnership account and had not accounted for,
in consideration of the partners' engagement to forbear and
desist from taking an examination, before the commissioners,
concerning such sums, and that the commissioners also
would forbear and desist from such examination, judgment
for the assignees was reversed on the ground, in part, that they
could not prevent the commissioners from proceeding in the
examination, [a)
When a party promises that a third person shall do an act,
the promise will be on a valid consideration, if the thing to be
done by such person be not physically impossible, or beyond
his legal ability. The law intends that it is in the promisor's
power to cause the third person to do the act stipulated for ; or
that, when he made the promise, he intelligently assumed the
risk of being unable to effect the object, and of being answer-
able in damages for its failure, {b) The case of Harvy v. Gib-
bons, supra, would probably have been decided for the plaintiff,
if the promise had been that the third person should discharge
him from the £20 debt. And in other cases where the promise
is to do a thing possible in itself, though it is beyond the
power of the promisor to perform it, he will be held liable to
an action for damages sustained by his non-performance ; his
(a) The principal ground of this decision was, that the agreement was un-
lawful. See Haslam i;. Sherwood, 4 Moore & Scott, 434 and 10 Bing. 540.
Maegregor v. Official Manager of Dover & Deal Railway, &c. 18 Ad. & El.
N. S. 618.
ip) Doughty u. Neal, 1 Saund. 216 and note. Hesketh v. Gray, Sayer,
185. Mounsey v. Drake, 10 Johns. 29.
OP THE CONSIDERATION. 21S
performance not being excused by any contingency, though not
foreseen by him and not within his control. In such a case it
is held to be his own fault that he did not expressly provide
against contingencies. A leading case on this point is Para-
dine V. Jane, Aleyn, 26, where a lessee, who had covenanted
to pay rent, was held liable to pay it, though he had been ex-
pelled from the demised premises by Prince Rupert and his
soldiers, who were the king's enemies. The same was held in
Pollard V. Schaaffer, 1 Dallas, 210. Yet it was further ht-ld in
that case, that the lessee was not bound, by his covenant to
keep and deliver up the premises in good repair, to repair
waste committed thereon by the British army that took pos-
session of the premises and occupied them. But this decision
has been questioned. See 5 Barb. 671. When the premises
are destroyed by accidental fire, or by lightning or tempest, or
by falling from weakness and decay, the lessee must pay
rent (a) and must repair, (b) if he has so engaged without an ex-
press provision exonerating him. 2 Piatt on Leases, 120, 186.
It is now a common learning, that when a person makes an
absolute and unqualified contract to do some particular act,
the impossibility of performance occasioned by inevitable ac-
cident, or some unforeseen occurrence, will not release him.
As if a ship-owner engages to procure and ship a cargo of
guano, corn, or dye-wood, at a specified port, the fact that
no such article can be procured there, or that its exporta-
tion has there been prohibited, or that the loading of it is
prevented by an embargo, or by pestilence, furnishes no
(a) Belfour v. Weston, 1 T. R. 310. Fowler v. Bott, 6 Mass. 63. Bige-
low V. CoUamore, 5 Cush. 226. Hallett v. VVylie, 3 Johns. 44. Allen r. Cul-
ver, 3 Denio, 294. Davis's Adm'r i\ Smith, 15 Missouri, 467. Beach v.
Farish, 4 Cal. 339. Peterson v. Edmonson, 5 Harrington, 378. Linn v.
Ross, 10 Ohio, 412. Redding i-. Hall, 1 Bibb, 536. Wagner ji. White, 4
Har. & Johns. 564. Peck v. Ledwidge, 25 Illinois, 112. Niedelet v. Wales,
16 Missouri, 214. Proctor v. Keith, 12 B. Monroe, 252.
(b) Bullock V. Dommitt, 6 T. R. 650. Brecknock Co. v. Pritchard, ib. 750.
Phillips V. Stevens, 16 Mass. 2;^8. Leavitt v. Fletcher, 10 Allen, 119. Green
V. Bales, 2 Ad. & El. N. S. 225 and 1 Gale & Dav. 468. Dermott v. Jones,
2 Wallace (U. S.) 7, 8. School District v. Dauchy, 25 Conn. 530. School
Trustees of Trenton v. Bennett, 3 Dutcher, 513.
214 LAW OP CONTRACTS.
answer to an action for breach of the engagement, (a) And
when a lessee covenants to repair, except in case of casual-
ties by fire, &c., yet if he covenants to pay rent and does not
except casualties, he will be held to pay rent, although the
demised premises are destroyed by fire or tempest, (b) There
is, however, an established difference between a duty created
by law and a duty created by contract. When the law cre-
ates a duty and the party is disabled to perform it, without
any default in him, and he has no remedy over, the law will
excuse him. (c) So the non-performance of a contract, it is
said, will always be excused, when it is occasioned by act
of law or by an act done by public authority, (d)
As to contracts to do what it is physically impossible to
do, the law is stated thus : " If the thing to be done is no-
toriously physically impossible, and was known to be so by
both parties, at the time of the making of the contract, the
contract is void." (e) The books generally mention a prom-
ise to go from London to Rome in three hours, as a promise
that would be void, because impossible to be performed.
But a distinction is not to be overlooked : " If the condition
of a bond be impossible at the time of the making thereof,
the bond is single, for it is the same as if there were no con-
dition at all ; and a feoff'ment, on condition that the feoffee
go to Rome in a day, is absolute, for the condition is
(a) Sjoerds v. Luscombe, 16 East, 201. Barker v. Hodgson, 3 M. & S.
267. Blight V. Page, 3 Bos. & Pul. 295 note. Marquis of Bute v. Thomp-
son, 13 Mees. & Welsh. 493,494. Hills v. Sughrue, 15 ib. 253. Kirk v.
Gibbs, 1 Hurlst. & Norm. 810. Hadley v. Clarke, 8 T. R. 259. Atkinson v.
Ritchie, 10 East, 530. Gilpins v. Consequa, Peters, C. C. 85 and 3 Wash.
C. C. 184. Harmony v. Bingham, 2 Kernan, 99. Stone v. Dennis, 3 Porter,
231. Combs V. Fisher, 3 Bibb, 51. Clancy v. Overman, 1 Dev. & Bat. 402.
Baylies v. Fettyplace, 7 Mass. 325. But see 3 Best & Smith, 826.
(b) 3 Kent Com. (11th ed.) 600 Sf seq. Monk v. Cooper, 2 Strange, 763
and 2 Ld. RajTn. 1477. Belfour v. Weston, 1 T. R. 310. Brown v. Quilter,
Amb. 619. Hare v. Graves, 3 Anstr. 687. Kramer v. Cook, 7 Gray, 553.
(c) 2 Saund. 421 a, note. Story on Bailm. § 31. Chit, on Con. (10th
Amer. ed.) 804, 805. 15 Missouri, 469. 19 Pick. 270. 1 Dallas, 211. 1
Dev. & Bat. 405.
((/) Chit, on Con. supra.
(e) Addison on Con. (5th ed.) 1037. 1 Powell on Con. 161.
OP THE CONSIDERATION. 215
repugnant to the feoffment. But if an estate be to arise, or
a duty to commence, on a precedent condition that is impos-
sible, they can never have effect." Bac. Ab. Conditions,
M. N. And see 1 Powell on Con. 266. Cora. Dig. Con-
dition, D. 1. 1 Stephen's Com. (5th ed.) 308, 309. 2 ib.
107, 108. Broom's Maxims, 216-228.
There are anomalous cases of unconscionable bargains, in
which promisors have been excused from performance ac-
cording to the terms of the bargains, and in which the prom-
isee recovered only what was fairly due to him.
James v. Morgan, 1 Lev. Ill, was " assumpsit to pay for a
horse a barleycorn a nail, doubling it every nail ; and avers
that there were thirty-two nails in the shoes of the horse,
which, being doubled every nail, came to five hundred quar-
ters of barley. The cause being tried before Hyde, J., he
directed the jury to give the value of the horse in damages,
being ,£8, which they did ; and judgment was given for the
plaintiff." And Lee, C. J., in 1 Wils. 295, approved this de-
cision. A similar decision was made in Cutler v. How, 8
Mass. 257, and in Baxter v. Wales, 12 Mass. 365, where the
jury were instructed that they might consider the contract
unconscionable and might assess, as damages, such sum as
would relieve the defendant from what was oppressive in the
contract. Such cases are at variance with the rule that a
party must recover according to his contract, if he sue upon
it, or not recover at all. When an express contract is void,
and it is not equitable that the defendant should retain
property without paying for it, the usual course is to dis-
regard that contract and sue upon an implied one.
In Thornborow v. Whitacre, 2 Ld. Raym. 1164 and 6
Mod. 305, the defendant, in consideration of half a crown,
promised to pay two grains of rye on Monday the 29th of
March, four grains the next Monday, doubling every Mon-
day for a year. A declaration on this promise was de-
murred to, on the ground that performance was impossible,
" as all the rye in the world was not so much." But " the
counsel for the defendant perceiving the opinion of the court
216 LAW OF CONTRACTS.
to be against his client, offered the plaintiff his half crown
and his cost, which was accepted of, and so no judgment
was given in the case."
Consideration void in part.
When one of two considerations is void merely for insuf-
ficiency, and not for illegality, the other will support the con-
tract. As a promise in consideration of an assignment of
title to dower, and of forbearing to sue an attachment out
of chancery upou'a decree. For though a title to dower can-
not be assigned, yet the forbearance will support the con-
tract, {a) So of other like cases, {b)
But if one of two considerations of an entire contract be
illegal, either by the common law or by statute, the whole con-
tract is void ; (c) as if part of the consideration of a bill of
exchange or promissory note be spirituous liquor sold con-
trary to law, though the other be lawful, {d)
It was formerly supposed that if any part of a contract was
void by statute, and especially by the statute of frauds, the
whole was void. But it is now settled, that if any part of an
agreement is valid it will avail pro tanlo, though another part
of it may be prohibited by statute, provided the sound part
can be separated from the unsound, and be enforced without
injustice to the promisor ; as will be seen post. 248 4' seq.
Unlawful Consideration.
According to Mr. Chitty, whose description of a simple
contract has been repeatedly cited, the consideration must be
(a) Coiilston v. Carr, Cro. Eliz. 847. Com. Dig. Action upon the case upon
Assumpsit, B. 13.
(I)) Pikard v. Cottels, Yelv. 56. Crisp v. Gamel, Cro. Jac. 128. King v.
Sears, 2 Crompt. Mees. & Rose. 48 and 5 Tyrwh. 587. Chit, on Con. (10th
Amer. ed.) 56. Wesleyan Seminary v. P'isher, 4 Mich. 526.
(c) Featherston v. Hutchinson, Cro. Eliz. 19!) and 3 Leon. 208. Morris v.
Chapman, T. Jon. 24. Wait v. Jones, 1 Scott, 735, 736 and 1 Bing. N. R.
664. Filson's Trustees v. Himes, 5 Barr, 452. CoUins v. Merrell, 2 Met.
(Ky.) 163. Crawford v. Morrell, 8 Johns. 253. 37 Alab. 46.
(rf) Scott V. Gihnore, 3 Taunt. 226. Gaitskill v. Greathead, 1 Dowl. & Ryl.
359. Deering v. Chapman, 22 Maine, 488. Yundt v. Roberts, 5 Serg. & R.
139. Carlton v. Bailey, 7 Foster, 230. Perkins v. Cummings, 2 Gray, 258.
OF THE CONSIDERATION. 217
sufficient and legal, and the agreement must be " to perform
some legal act, or omit to do anything, the performance
whereof is not enjoined by law ; " that is, the consideration
must be lawful, and the thing to be done or omitted must
also be lawful, or the agreement is void. It is not only use-
less but difficult to illustrate these two points separately, by
examples. To every agreement there are in fact two con-
siderations. This is manifest in the cases of mutual prom-
ises executory, as in the case, for example, of Gibbons v.
Prewd, Hardr. 102. The plaintiff promised to convey to the
defendant all his interest in the estate of a person deceased,
before a certain day, and the defendant promised to pay the
plaintiff <£25 before the same day. The consideration of the
plaintiff's promise was the promise of the defendant, and
vice versa. Had the promise of either been to do an unlawful
act, the contract, that is, the promise of each, would have been
void. The same is equally true, though perhaps less ob-
viously so, of all other agreements, whether executory, or ex-
ecuted on one side only, or executed on both sides. Thus,
where an officer, in consideration of a promise of indemnity,
suffers a prisoner in execution to escape, the consideration is
executed on his part, and executory on the part of the prom-
isor. Here there is not only the promise of indemnity, as the
consideration for the officer's act, but there is the officer's act,
either done or agreed to be done, as the consideration for
the promise of indemnity. And so of all other contracts;
as might be shown by a glance at the pleadings of both
parties, if both should sue. Either party to a contract may
sue the other for a breach of it ; and, in all cases, it is neces-
sary to set forth, in the declaration, the consideration of the
contract, as well as the terms of it. When, for example, an
action is brought on a contract for A.'s doing one thing in
consideration of B.'s doing another thing, if A. sues, he states,
in his declaration, the thing to be done by himself, as the con-
sideration of the promise made to him by B. If B. sues, he
states the thing to be done by himself as the consideration of
A.'s promise to him.
A consideration on one side may be lawful, and unlawful
218 LAW OF CONTRACTS.
on the other ; that is, a promise to do a lawful act may be
made on an unlawful consideration ; or a promise to do an
unlawful act may be made on a lawful consideration : As if
A. promise to reap B.'s field, in consideration that B. will
beat C, or cause him to be beaten, or if B. promise to beat
C, in consideration that A. will reap B.'s field. In such case,
as one or the other party may happen to sue, the consideration,
or the promise, will be illegal. So both considerations, or the
consideration on both sides, may be unlawful. As if A. prom-
ise to beat C, in consideration that B. will not give evidence
against him, if called as a witness. These contracts are
equally void, and none of them can be enforced, (a)
Contracts are said to be illegal, either because the consid-
eration of a promise is illegal, or because the promise is il-
legal. The distinction is without a difference. At least there
is no difference, in effect, between the two. Wherever the
illegality lies, the contract cannot be supported in a court
of law. And it will be found, it is believed, that the phrase
" void for illegal consideration " is usually adopted only
in those cases where the party, from whom an illegal con-
sideration moved, sues for the breach of a promise which is
not in itself illegal : As if an officer sues on a promise
of indemnity, in itself an unexceptionable promise, the con-
sideration of which was his permitting an escape, an un-
lawful act. If the other party sue the officer for not per-
mitting the prisoner to go at large, according to agreement,
the language would be that the contract was illegal ; for the
consideration of the contract on the part of the party suing,
and from whom it moved, was not illegal.
This difference of language, that is, sometimes saying the
promise is void for illegal consideration, and sometimes that
the contract is void because it is illegal, tends to confuse,
and may leave the impression that the party to a contract,
who stipulates for nothing unlawful on his part, may en-
force his claim against the other party, though the other
party, on whom the illegality rests, cannot enforce the con-
tract against him. The law is not so. The whole contract
(a) See 1 PowuU on Con. 176.
OP THE CONSIDERATION. 219
is void (to speak with technical precision) whenever the con-
sideration on either side is unlawful ; that is, whether that
which is the ground of the promise on one part, or the thing
which is promised to be done on the other part, is unlawful,
all is void, and neither party can derive any assistance from a
court of law or of equity to carry it into effect.
Failure of Consideration.
When the consideration of a contract fails, that is, when
what was supposed to be a consideration is none, the con-
tract may be avoided. If money has been paid, it may be
recovered back, where the consideration fails ; or if a note,
&c., has been made, failure of consideration is a sufficient de-
fence to a suit brought to enforce payment or performance.
When real estate is conveyed by deed, with warranty, and
notes are given for the price, the decisions in this country gener-
ally are, that a partial failure of title to the estate is not a full
defence to actions on the notes, unless the grantor was guilty of
fraud, {a) In some cases the grantee, when sued for the price,
has been allowed to show partial failure in reduction of dam-
ages, {b)
The decisions are not uniform on the question whether
total failure of title is a defence to an action for the price. In
New Hampshire, Massachusetts, Connecticut, Illinois, and
New York, such failure is a defence, [c) Contra, in Maine ;
(a) Greenleaf v. Cook, 2 Wheat. 13. Lloyd v. Jewell, I Greenl. 352.
Howard v. Witham, 2 ib. 390. Brown v. Reves, 19 Martin, 235. Long v.
Allen, 2 Florida, 403. Hay v. Taliaferro, 8 Smedes & Marsh. 727. Van Lew
V. Parr, 2 Richardson Eq. 321. Wilson v. Jordan, 3 Stew. & Port. 92. AVhitc
17. Beard, 5 Porter, 94. Lattin v. Vail, 17 Wend. 188. Tallmadge v. Wallis,
25 Wend. 107 and cases there discussed. Smith v. Sinclair, 15 Mass. 171.
Wentworth v. Goodwin, 21 Maine, 150. Barkhamsted v. Case, 5 Conn. 528.
(6) See 11 Conn. 438. Hart v. Ex'rs of Porter, 5 Serg. & R. 203, 206.
Van Epps v. Harrison, 5 Hill, 63.
(c) Tillotson V. Grapes, 4 N. Hamp. 448. Rice v. Goddard, 14 Pick. 293.
Trask v. Vinson, 20 ib. 110. Cook v. Mix, 11 Conn. 432, Tyler r. Young,
2 Scammon, 447. Davis v. McVickers, 11 Illinois, 327. Fnsbee v. HofTnagle,
11 Johns. 50. This last case has been said to be overruled ; but according to
Chancellor Walworth in 25 Wend. 116 and Chief Justice Nelson in Tibbets v.
Ayer, Hill & Denio, 179, the only objection to that case is, not to the princi-
220 LAW OP CONTRACTS.
the covenants in a deed being there held to be a sufficient
consideration for a note, (a)
To avoid circuity of action, courts have of late permitted
partial failure of consideration to be a defence pro tanto in
suits on contracts respecting personal property, work and
labor, &c. As in the case of a contract to build a house in a
particular manner, and at a specified price, if the work is in-
ferior to that which was agreed on, the defendant may show
this fact and reduce the plaintiflf's compensation to the actual
benefit received by the defendant. Ante, 7.
By the common law, neither the want nor the failure of
consideration is any defence to an action on a bond, or other
sealed instrument, except a bond in partial restraint of trade.
By local usage, however, in some of the States of the Union,
and by virtue of statutes in other States, as seen ante, 161,
162, such defence is allowed, {b)
pie of the decision, which is held to be sound, but to the application of that
principle to facts which did not show a total failure. In Hill & Denio, supra,
where the maker of a note given as part consideration for a conveyance of land,
with full covenants, had been evicted from the whole of the conveyed prem-
ises, it was decided that the note was not recoverable.
(a) Jenness v. Parker, 24 Maine, 289, and extrajudicial opinions expressed
in Lloyd v. Jewell and other cases cited supra.
(b) It has heretofore been mentioned, that a court of chancery will not en-
force the execution of a sealed contract, if it be purely voluntary. And in
the case of Wright f. Moore, Tothill, 2 7, "a voluntary bond of £1000, en-
tered into for no consideration, was cancelled in the presence of the judges."
CHAPTER IV.
OF UNLAWFUL CONTRACTS.
Every contract to do an act which the law forbids, or to
omit an act which the law enjoins, is void. No contract can
be enforced, nor damages recovered for the breach of any con-
ti'act, which contravenes the principles of the common law, the
provisions of a statute, or the general policy of the law. No
form of words, however artfully devised, can prevent an inves-
tigation of the real object of a contract, if that object be illegal.
Nor is there any substantial difference, on this point, between
simple contracts, and contracts by specialty. Illegality vitiates
contracts of every description.
. A distinction was formerly taken between malum in se and
malum jyrohibitum ; and some contracts, which violated merely
statutory provisions or general policy, were subjected to less
rigid rules, than contracts which violated natural justice or
furthered palpable iniquity. This distinction is no longer rec-
ognized. Every act is now regarded as unlawful, which the
law forbids to be done ; and every contract is declared void,
which contravenes any legal principle or enactment, {a)
Unlawful contracts are usually divided into divers species ;
such as immoral, fraudulent, contrary to the principles of the
common law, contrary to the policy of the law, contrary to
the provisions of a statute, &c. But it seems unnecessary
to make more than two distinctive species, namely, contracts
which violate the common law, and contracts which violate a
statute.
(a) 2 Bos. & Pul. 374. 3 B. & Aid. 183. 7 Greenl. 462. 3 Gush. 450.
222 LAW OF CONTEACTS.
I. CONTRACTS WHICH CONTRAVENE THE PRINCIPLES OF THE
COMMON LAW.
These might be subdivided almost indefinitely ; for the
rules of the common law are almost indefinitely numerous.
Convenience requires some classification ; but not one that is
very minute.
Contracts void for immorality.
All contracts which have for their object any thing for-
bidden by the immutable laws of God are void by the rules
of the common law, which adopts and lends its sanctions to
those paramount laws ; such as a contract to commit murder,
larceny, perjury, &c., or to pay money, or do any other act,
in consideration of the commission of either of those or of
any similar offences, (a) So of all contracts that have for
their object any thing contra honos inores. (b) Thus, an agree-
ment in consideration of future illicit cohabitation is void, (c)
But a sealed contract made in consideration of past seduction
and cohabitation, or past cohabitation without seduction, is
not unlawful, but will be enforced. The law, in such case,
regards the contract as obligatory in honor and conscience ;
as intended for the redress of an injury inflicted by the party ;
as prcemium pvdoris vel pudicitice. Such appears to be now
the law, though some of the earliest cases do not fully warrant
the doctrine, {d) But parol promises, on such consideration,
stand on different ground. No consideration is necessary to
(a) 2 Co. Lit. 206, b. 1 Powell on Con. 165. 2 Pothier on Obligations
(Evans ed.) 72. (6) Cowp. 39.
(c) Walker v. Perkins, 3 Bur. 1568 and 1 W. Bl. 517. Franco v. Bolton,
3 Ves. 368. Gray v. Matbias, 5 Ves. 286. Friend v. Harrison, 2 Car. & P.
584.
(c?) See Whaley w. ISTorton, 1 Vernon, 483. Mattliew v. Hanbury, 2 ib. 187.
Bainham v. Manning, ib. 242. Spicer v. Hayward, Pre. Ch. 1 14. Annandale v.
Harris, 2 P. W. 432. Cray v. Rooke, Cas. Temp. Talb. 153. Turner v.
Vaughan, 2 Wils. 339. Hill v. Spencer, Amb. 641. 1 Lomax on Ex'rs, 634-
636. Ram on Assets, (Amer. ed.) 186. 1 Story on Eq. § 296. Shaw on
Obligations, 64.
UNLAWFUL. 223
support sealed contracts, though an illegal consideration makes
them void. But by the law of England all parol (unsealed)
promises to make payment for past illicit intercourse, even
though the promisor was the seducer, are void for want of a
legal consideration, {a)
In Wolraven v. Jones, 1 Houston, 355, where a woman
sued an administrator for wages, alleged to be due to her from
the intestate, the jury were instructed, that if the plaintiff
did not live with the intestate in the character and capacity
of a hired woman or house servant, but as his mistress, the
law would not imply a contract nor enforce an express one
founded on such a consideration. See also Robbins v. Potter,
11 Allen, 588.
A parol promise, however, by the reputed father of a bastard
child, to pay the mother an annuity, if she would bring up the
child properly, or maintain it and keep the connection secret,
is held to be valid, on the ground that the promisor's object
was " to preserve the child from want, to relieve himself from
being compelled to support it, and to secure to the child the
mother's care." (b) And in Pennsylvania it has been decided
that seduction and begetting a bastard child was a sufficient
legal consideration for a parol promise to give the mother a
bond for a sum of money ; if the promise was not obtained by
any oppression or unfairness, (c)
In some of the earlier cases, it was suggested that a court
of chancery would grant relief to the obligor in a bond given
to a common prostitute in consideration of past cohabitation.
But it seems that relief will not be given, in such case, unless
(a) Matthews's case, 1 Madd. 558. Binnington v. Wallis, 4 B. & Aid.
650. Beaumont v. Reeve, 8 Ad. & El. N. S. 483. These last two cases have
overturned the decision in Gibson v. Dickie, 3 M. & S. 463, unless that case
can be upheld on a ground not suggested by court or counsel, namely, that a
part of the consideration of the defendant's promise to the woman was his
retaining of a portion of bank stock and money that he had received of her.
(b) Hicks V. Gregory, 8 C. B. 378. Jennings v. Brown, 9 Mees. & Welsb.
496. Smith v. Roche, 6 C. B. N. S. 223.
(c) Shenk v. Mingle, 13 Serg. & R. 29. And see Maurer v. Mitchell, 9
Watts & Serg. 69.
224 LAW OF CONTRACTS.
there be fraud, (a) In Clarke v. Perriam, (b) where the plaintiff
sought to have a bond enforced as prcemium pudicilice, and
she was proved to have been a prostitute before her connection
with the obligor, the lord chancellor dismissed the plaintiff's
bill. So where fraud is practised on the woman, chancery
will grant relief, as in other contracts. Thus where one pre-
tended to convey an estate to a woman, as prcsmium pudicitiw^
when in fact there was no such estate, a conveyance was
ordered to be made by the man " out of the best of his estate,"
equal to what was pretended to be conveyed, (c) Lord Hard-
wicke, in the case of Priest v. Parrot [d) dismissed a bill for
payment of a bond given by a married man to a woman
whom he had seduced, she knowing him to be married, and
having caused a separation between him and his wife, (e)
In Lady Cox's case, (/) Sir J. Jekyll, Master of the Rolls,
decided that a bond given to a second wife, who lived with
the obligor, after she knew he had a former wife alive, should
be postponed to all simple contract debts of the obligor, who
died without property sufficient to pay all his debts. But if
she had left the obligor, on discovering that there was a
lawful wife alive, and had thereupon taken a bond, it would
have " been a just bond, and for a meritorious considera-
tion." [g)
A contract for the occupation of lodgings, with knowledge
that they are to be used for the purpose of prostitution, is
void, [h) So of a contract for board and lodging, if, in addi-
tion to the pay therefor, a portion of the profits of prostitution
is to be received by the landlord. (/) So of a contract for
clothes to be paid for from the profits of prostitution {j) But
board and clothing furnished to a prostitute, though with knowl-
edge that she is such, is a good consideration for a promise,
(a) See 2 Veruoii, 242, 5 Ves. 286 and Amb. 641. Newland on Con. 483
§• i>eq. (b) 2 Atk. 333.
(c) Cary v. Stafford, Amb. 520. (d) 2 Ves. Sen. 160.
(p) See the vice-chancellor's remarks, in Matthews's case, 1 Madd. 558.
(/) 3 P. W. 339. (g) See Ex parte Cottrell, Cowp. 742.
(h) 1 Esp. R. 13. Ry. & Mood. 251.
(i) 1 Sflw. N. P. (1st ed.) 60 (7th Amer. ed.) 66. Chit, on Con. (10th
Anier. ed.) 735. (J) 1 Campb. 348.
UNLAWFUL. 225
express or implied, unless they are furnished for the purpose
of enabling her to pursue a course of prostitution, (a)
A contract for the sale of prints of an obscene and immoral
nature is void, (b) And a printer cannot recover pay for print-
ing a work of a grossly immoral nature, (c)
Though, by the common law, wagers on indifferent subjects
are legal, yet if they are contra bonos mores, and lead to inde-
cent examinations and disclosures, they are void for illegality ;
as a wager upon the sex of a third person ; or a wager that
an unmarried woman will be delivered of a child before a
certain day. [d)
Contracts to do or omit, or in consideration of doing- or omitting'
acts, the doing or omitting of which is punishable by criminal
process.
Seve^al of the cases under the preceding head fall also
within this principle. Thus, letting a house to a woman of
ill fame for Ihe purpose of aiding her in her vicious course of
life, is an indictable offence, (e) So is the publishing of an
obscene print or book. (/) But all immoral acts, which, if the
consideration of a contract, would avoid it, are not indictable.
All acts, however, which are indictable, or otherwise punisha-
ble criminally, will render a contract void, if they form any
part of the consideration. Thus, Lord Ellenborough held that
it would be a good defence to an action for not supplying
manuscript to complete a work according to agreement, that
the matter of the intended publication was of an unlawful
and indictable nature, {g) So a bond, note, or other promise,
given in consideration of stifling or compounding a prosecu-
tion for treason, felony, or o. public misdemeanor, is void ; [h) or
(a) 1 Bos. & Pul. 340. 1 Campb. 348. 2 Car. & P. 347.
lb) 4 Esp. R. 97. (c) 2 Car. & P. 198.
(c?) Cowp. 729, 735, 736. 4 Campb. 152.
(e) 3 Pick. 26.
(/) 17 Mass. 337. 2 Stra. 788. 1 Russ. on Crimes (7th Amer. ed.)
233.
{g) Gale v. Leckie, 2 Stark. R. 98.
(/«) 2 Wils. 343. 5 East, 294. 1 Campb. 45, 55. 16 Mass. 91. 9 Verm.
15
226 LAW OF CONTRACTS.
in consideration of concealing treason or felony, which is a
punishable misprision ; (a) or of compounding informations on
penal statutes, in criminal cases, (b)
In England, where the party injured has much more control,
than in this country, of a prosecution for misdemeanors that
chiefly affect an individual, the defendant, afte?' conviction, is
permitted " to speak to the prosecutor," before sentence is pro-
nounced ; and if the prosecutor declares himself satisfied, a
light punishment is inflicted. In such cases, an agreement to
make amends to the party injured, to pay his expenses, &c.,
is lawful, though the intention and end of the agreement are
to mitigate the prisoner's punishment, (c) And the costs of
an indictment for an assault, &c., of which a prisoner has
been convicted, where judgment has been respited, is a lawful
subject of submission to arbitration, and an award thereon is
binding upon the parties, that is, the prosecutor and the de-
fendant, (d) But a criminal prosecution is not a lawful sub-
ject of reference, (e)
A note given to procure a discharge from arrest on an at-
tachment out of chancery, and in satisfaction of a balance of
money in the prisoner's hands, for non-payment of which the
attachment is sued, is valid ; the process, though criminal in
form, being really civil for all purposes for which it is sued
out by the party, and therefore subject to his control. (/) So
of notes given to an officer, who has a warrant of distress, or
a capias, against a defendant convicted of a breach of the ex-
cise laws, for the purpose of saving his property from sale, or
•23. 3 Car. Law Repos. 415. 1 Bay, 249. 1 Bailey, 588. 2 Southard, 470.
5 N. Hamp. 553. 4 Ohio, 400.
(a) 4 Bl. Com. 120, 121. 1 Chit. Crim. Law, 3, 4.
(h) 4 Bl. Com. 136.
(c) 4 Bl. Com. 364. 1 Russ. on Crimes, (7th Amer. ed.) 131. Beeley v.
Wingfield, 11 East, 46.
(d) Baker v. Townsend, 7 Taunt. 422, and 1 Moore, 120. See also The
King V. Dunne, 2 M. & S. 201. As to a prosecutor's rights and liabilities, in
England, see 1 Chit. Crim. Law, 3-10.
(e) Watson v. McCullum, 8 T, R. 520. Kyd on Awards (1st Amer ed.)
63, 69.
(/) Brett V. Close, 16 East, 293.
UNLAWFUL. 227
*
his body from imprisonment, (a) But if an officer take a note,
or other promise, of a prisoner sentenced to confinement as a
punishment, in consideration of his being at large, and as a
security for his return into custody, it is void; the indulgence
being a breach of duty, for which the officer is indictable. A
fortiori of an agreement to pay an officer, or other person, for
an entire escape, either from a mere arrest, or from confine-
ment in prison, (b)
There are two cases, in which it was held that an agree-
ment in consideration of compounding a misdemeanor, which
principally affects an individual (as fraud, &c.,) is lawful, and
may be enforced by action, (c) The authorities, that have
been cited, seem to settle this point the other way. In Fal-
lowes V. Taylor, 7 T. R. 475, a bond was held to be valid,
though the consideration on which it was given was, in
part at least, an agreement by the obligee not to prefer bills of
indictment (which were prepared) against the obligor for levy-
ing nuisances in a navigable river. The condition of the bond
was that the obligor should remove the nuisances by a certain
day, and should at no time erect them again. The recital
prefixed to the condition, stated that the obligee had been
directed by the quarter sessions to prosecute those who had
levied the nuisances, that he had prepared indictments, and
that the defendant had applied to him not to prefer them, on
condition that he would remove the nuisances and give the
bond. The defendant pleaded the general issue, and also per-
formance of the condition ; and the issue, joined on the last
plea, was found for the plaintiff. A motion was made in
arrest of judgment, on the ground that the contract, disclosed
in the condition of the bond, was illegal. But the motion was
overruled, and the plaintiff had judgment, (d) It did not
(a) Pilkington v. Green, 2 Bos. & Pul. 151. Sugars v. Brinkworth, 4
Campb. 46.
(b) 2 Hawk. c. 19, §§ 17 Sf seq. 4 Bl. Com. 130. Churchill v. Perkins, 5
Mass. 541.
(c) Johnson v. Ogilby, 3 P. W. 279. Drage v. Ibberson, 2 Esp. R. 643. See
Chief Justice Tindal's remarks on these cases, in 9 Ad. & El. N. S. 393, 394.
(c?) But see, as to this decision, 9 Ad. & El. N. S. supra.
228 . LAW OP CONTRACTS.
appear, on the face of the record, that the bond was unlawful.
Lord Kenyon said, " If there were any thing illegal in the con-
sideration, the defendant should have pleaded it." It is neces-
sary to plead the illegality of a bond ; (a) but if it might be
given in evidence, the defendant, in this case, gave no such
evidence, and the verdict virtually negatived the illegality.
By the revised statutes of New York, misdemeanors, ex-
cept in certain cases, may be compromised, either before or
after an indictment. But an assault and battery cannot be
compromised after conviction, {b)
All contracts to indemnify persons and save them harmless,
for doing indictable acts, are void for illegality ; as indemnities
to printers for publishing libels ; or to any person for commit-
ting an assault, &c., upon another.
Contracts for the maintenance of suits are void ; mainte-
nance being an indictable offence. So of contracts involving
champerty, embracery, and the buying of pretended titles, (c)
The sale of lands out of the vendor's possession, and held
adversely at the time, is not a valid consideration for a prom-
ise, [d) And no action can be sustained by a purchaser
against the seller of a pretended title, on account of the seller's
subsequent fraudulent connivance with the tenant to defeat
the purchaser's title, (e)
Dissuading or endeavoring to dissuade a witness from giv-
ing evidence against a person indicted, is an indictable offence,
and, of course, any promise, made to a witness, in considera-
tion of his not giving evidence, is void. (/) Extortion is in-
dictable, and any obligation taken by an officer for the
(a) Harmer v. Rowe, 6 M. & S. 146.
ip) People V. Bishop, 5 Wend. 111. See also the Eev. Sts. of Massachu-
setts, c. 135, §§ 25, 26, and the Gen. Sts. c. 170, § 33. Price v. Summers, 2
Southard, 578.
(c) 4 Bl. Com. 134,§' se?. Moore, 751. Dyer, 355, b. Carter, 229. 1
Pick. 415. 5 Pick. 348.
(rf) 2 Johns. Cas. 58, 423. 2 Caines, 147. The law as to maintenance
and champerty is not now in force in New York, except as contained in the
statutes of the State. 4 Kern an, 289.
(e) Swett V. Poor, 11 Mass. 549.
(/) Mason v. Watkins, 2 Vent. 109. Badger v. Williams, 1 Chip. 137
UNLAWFUL. 229
payment of what is not due to him, or for more than is legally-
due, is void, (a)
Contracts contrary to sound policy.
The case of Norman v. Cole {h) is sometimes cited as
having decided that a contract to pay for services in attempt'
ing to obtain the pardon of a convict is unlawful and void.
But the ground of that decision seems to have been, that
means, which Lord Kenyon deemed unwarrantable, were to
be used to procure a pardon; namely, that money was to be
given to M., a person of good connections, and having access
to persons of influence, for using his interest, by representing,
in favorable terms, the case and character of a convict, who
was under sentence of death. If any thing more was decided,
the case is in conflict with the early case of Lampleigh v.
Braithwait, {c) upon the authority of which the court of
New Hampshire held that an agreement to use legitimate
means to procure the pardon of a convict is neither immoral
nor against public policy, {d) And so hold the court of
Georgia, {e)
In Addison on Con. (2d Amer. ed.) 96, (5th ed.) 892, Norman
V. Cole is cited as deciding that an agreement is void, as
against public policy, if made " to pay money in considera-
tion that a party will use his private interest and influence
wdth the crown to obtain the pardon of a criminal." And
in Hatzfield v. Gulden, 7 Watts, 152, it was decided that an
engagement to procure signatures to a petition for the pardon
of a convict sentenced to punishment was unlawful and could
not be enforced by action. See also Wildey v. Collier, 7
Maryl. 273, 281. McGill's Adm'r v. Burnett, 7 J. J. Marsh.
(a) 1 Russ. on Crimes, (7th Amer. ed.) 142. Commonwealths. Cony, 2
Mass. 524. Commonwealth v. Bagley, 7 Pick. 279.
(b) 3 Esp. R. 253. See Wilkinson v. Kitchin, 1 Ld. Raym. 89-
(c) Hob. 105, Moore, 866 and 1 Brownl. 7.
{(l) Cliadwick V. Knox, 11 Foster, 226, 236.
(e) Formby v. Pryor, 15 Georgia, 258. In Shaw on Obligations, 64, note
(1) the case of Stewart v. Earl of Galloway is cited, in which it was held that,
by the law of Scotland, a bond granted as a premium to solicit pardon, being
turpis causa, would not support an action.
230 * LAW OF CONTRACTS.
640. Wood V. McCann, 6 Dana, 368, and remarks of Grier, J.
16 Howard, 334.
All contracts to procure or to endeavor to procure an act of
a legislature, by any sinister means, or by any personal influ-
ence on individual members, are immoral, unlawful, and in-
consistent with sound policy. But a contract to act openly as
attorney for a petitioner, in preparing documents and address-
ing a committee of a legislature, is lawful, (a)
An agreement by a petitioner to the House of Commons,
against the return of a member thereof, on the ground of
bribery, not to proceed with the petition, in consideration of a
sum of money, was held to be void for illegality, {b) And
securities, given in consideration of withdrawing opposition to
a bill pending in parliament, were held to be illegal and void,
on the ground of public policy, (c)
Marriage brocage contracts, that is, agreements to pay third
persons for procuring a marriage, by means of their exertions
and influence with one of the parties to the match, are
void, (d) So of contracts in restraint of marriage. Thus,
(a) Marshall v. Baltimore & Ohio Eailroad Co. 16 Howard, 314. Bryan
V. Reynolds, 5 Wis. 200. Harris v. Roof, 10 Barb. 489. Rose v. Truax, 21
ib. 361. Wood V. McCann, 6 Dana, 366. Clippinger v. Hepbaugh, 5 Watts
& Serg. 315. Frost v. Inhabitants of Belmont, 6 Allen, 152. Sedgwick v.
Stanton, 4 Kernan, 289. And see Fuller v. Dame, 18 Pick. 472. Pingry v.
Washburn, 1 Aik. 264. An agreement to use one's influence in favor of a
candidate for oflSce is illegal. Nichols?;. Mudgett, 32 Verm. 546. See also
Meacham v. Dow, 32 Verm. 721. 2 Kent Com. (11th ed.) 609, 610 and
notes.
(b) Coppocku. Bower, 4 Mees. & Welsh. 361 and 1 Horn & Hurlst. 340.
Lord Abinger said the petition was " a proceeding instituted not for the
benefit of individuals, but of the public ; and the only interest in it, which the
law recognizes, is that of the public. I agree that if the person who prefers
that petition finds in the progress of the inquiry, that he has no chance of suc-
cess, be is at liberty to abandon it at any time. But I do not agree that he
may take money for so doing, as a means and with the effect of depriving the
public of the benefit which would result from the investigation. It seems to
me to be as unlawful so to do, as it would be to take money to stop a prosecu-
tion for a crime."
(c) Vauxhall Bridge Co. v. Earl Spencer, 2 Madd. 356.
(d) Hall V. Potter, Show. P. C. 76 and 3 Lev. 411. Reeve Dom. Rel.
419.
UNLAWFUL. 231
an agreement between a man and a woman that he would
pay her <£1000, if he married any other person except herself,
was held to be void ; the agreement not being to marry her,
and she not agreeing to marry him ; so that he was restrained
from marrying at all, if she should refuse to marry him. (a)
The decisions on this subject rest on the ground, that though
the law does not oblige any one to marry, yet that marriage
is a moral and political duty, and that an agi-eement " to
omit moral duties, which, for the exercise of our virtues, are
left to our own free choice," is not the proper subject matter
of an action. " Whatsoever a man may lawfully forbear, that
he may oblige himself against; except when a third person is
wronged, or the public is prejudiced by it." (b) A bond from a
widow not to marry again was decreed to be delivered up,
although there was a counter-bond to pay a sum of money
if she did not. (c) A wager between two persons, that one
of them will not marry within six years, is void, unless it be
shown that such temporary restraint is proper and prudent in
the particular case, [d)
Conditions, which restrain marriage generally, are void, if
annexed to devises or legacies. But a condition which re-
strains marriage as to time, &c., or which requires consent of
parents, trustees, &c., is good. Such conditions are regarded
as allowable regulations, not prohibitions, of marriage, and as
proper exertions of the liberty of disposing of property accord-
ing to the owner's pleasure ; which liberty is as much favored
by the law, as the liberty of marriage. In both cases such re-
strictions only are permitted, as are deemed to be of public
utility.
But devises and legacies on condition that the devisee or
legatee does not marry, or on condition of their being en-
joyed so long only as the devisee or legatee remains single, are
treated as unconditional devises and bequests. The condition
is only in terroretn, and is inoperative. The party does not
(a) Low V. Peers, Wilmot, 364 and 4 Bur. 2225. See also Cock v. Rich-
ards, 10 Ves. 429. Sterling v. Sinnickson, 2 Southard, 756.
{b) Wilmot, 377. (c) Baker v. White, 2 Vernon, 215.
((/) Hartley v. Rice, 10 East, 22.
232 LAW OF CONTRACTS.
forfeit the bequest by marrying, unless it be limited over by
the testator, (a) This distinction, however, does not hold in
cases of a condition precedent ; as a legacy to be paid to A.,
on condition of his marrying B., or marrying C, with the con-
sent of the executor, or other person named. (6)
In favor of free and unconstrained marriages, very strict
rules are applied to the limitation of legacies, and very liberal
rules to the construction of consent to marriages by guardians,
trustees, &c. (c)
The rule of the civil law is, matrimonium debd esse liherum ;
and all conditions, whether precedent or subsequent, annexed
to gifts, bequests, &c., are void, if their tendency or design be
to restrain the liberty of marriage, [d)
Contracts in general restraint of trade are against sound
policy.
The distinction is well established between agreements that
are intended for a general restraint of trade, and those which
stipulate only for a particular restraint. All agreements not
to exercise a particular trade or profession at any place are
void, whether the agreement be by parol or by specialty.
And it is immaterial whether it be the trade or pursuit which
the party usually follows, or any trade or pursuit, that he en-
gages not to pursue. It is also immaterial whether the agree-
ment is for the life of the party, or for a fixed and definite
time. All such agreements are void, although made upon a
valuable consideration ; and they are denominated agreements
for a general, or total, restraint of trade. But agreements not
to exercise a trade in a particular place, or to trade with par-
ticular persons, are denominated agreements for a particular,
or partial, restraint of trade. And such agreements are valid,
if made on a reasonable consideration, but invalid, if made
(a) 1 Roper on Legacies, c. xiii. Keily v. Monck, 3 Ridgeway P. C. 205.
Parsons u. Winslow, 6 Mass. 169.
(6) Harvy v. Aston, Comyns's Rep. 726 and AVilles, 83. Long v. Dennis,
4 Bur. 2052.
(e) See Willes, 99, note (a.)
(rf) See Comyns's Rep. 734-738. 2 White & Tudor's I-ead. Cas. in Eq.
(3d Amer. ed.) 390 ^ seq.
UNLAWFUL. 238
without such consideration, though they may be by bond or
other specialty. It is generally said that an agreement of this
kind is the only exception to the rule that a contract under
seal imports a consideration which a party is not permitted to
deny. It might, perhaps, be as properly said, that this is the
only case in which a contract by specialty is unlawful and
void merely because it is without actual consideration.
In this class of cases, it is held that a consideration must
appear on the face of the agreement, and that a declaration
on a bond that sets forth no consideration is bad on demur-
rer, {a) But if a declaration avers that the defendant, for the
considerations mentioned in a certain deed, covenanted not to
exercise a trade within certain limits, without stating what
those considerations were, and the defendant neither craves
oyer of the deed, nor demurs to the declaration, the court will
presume that the deed disclosed a sufficient legal considera-
tion, (b)
Courts do not inquire whether the consideration of such a
contract is equal in value to the restraint agreed upon. " It is
enough," said Tindal, C. J. " that there actually is a considera-
tion for the bargain, and that such consideration is a legal
consideration, and of some value." (c) In Bragg v. Tan-
ner, {d) the sum of ten shillings was held to be a legal con-
sideration for an agreement not to keep a draper's shop in
Newgate Market. And one dollar was held to be a legal
consideration for a covenant not to run a stage-coach between
Providence and Boston, in opposition to the plaintiff, (e) But
courts will inquire and decide whether the actual consideration
(a) Ilutton V. Parker, 7 Dowl. P. C. 739. And see Mallan v. May, 11
Mees. & Welsh. 665, and the ancient decisions there cited by Baron Parke.
1 P. W. 182. 3 y. & Jerv. 330. 2 Ohio State R. 519.
(6) Homer v. Ashford, 11 Moore, 91 and 3 Bing. 322.
(c) Sainter v. Ferguson, 7 C. B. 727, 728, 730. Hitchcock v. Coker, 2
Ear. & WoU. 464, 6 Ad. & El. 438, 457 and 1 Nev. & P. 796. In this last
case, the judgment of the King's Bench was reversed, and it was decided
that an agreement was not unreasonable nor oppressive, by reason of its not
being limited to the life of the promisee nor to the time during which he should
carry on business.
(d) Cited by Montague, C. J., in Cro. Jac. 597.
(e) Pierce v. Fuller, 8 Mass. 223. And see Hearn v. Griffin, 2 Chit. R. 407.
234 LAW OF CONTRACTS.
is legally such as will sustain the agreement. Whether an
agreement of this kind is reasonable and valid is to be decided,
as said by Tindal, C. J., 7 Bing. 743, " by considering whether
the conti'act is such only as to afford a fair protection to the
interests of the party in favor of whom it is given, and not so
large as to interfere with the interests of the public. What-
ever restraint is larger than the necessary protection of the
party can be of no benefit to either ; it can only be oppressive,
and if oppressive, it is, in the eye of the law, unreasonable."
And a bond given by a dentist, that he would not practise
within the distance of one hundred miles from the city of
York, where the obligee resided, in consideration of receiving
instructions, and a salary determinable at three months'
notice, was held to be unreasonable and void, (a) And an
agreement not to carry on the business of manufacturing and
selling shoe-cutters " within the Commonwealth of Massachu-
setts" was decided to be void. (6) As to the limits within
which a party may reasonably restrain himself from exercis-
ing his business, see 11 Ohio State R. 357, 3 Beavan, 383 and
the cases collected and discussed in Tallis v. Tallis, 1 El. &
Bl. 391.
Where the stipulations in a contract of this kind are divisi-
ble, and a part imposes reasonable and part unreasonable re-
straints, effect will be given to the former, and not to the
latter, (c)
(a) Horner v. Graves, 5 Moore & Payne, 768 and 7 Bing. 735. This case,
says Lord Uenman, in Archer v. Marsh, 6 Ad. & El. 967, 968, 2 Nev. & P.
568 and Willm. Woll. & Dav. 644, " appears to be overruled by the late de-
cision in error," reversing the judgment of the King's Bench in Hitchcock v.
Coker. See Young v. Tinimins, 1 Tyrwh. 226 and 1 Crompt. & J. 331.
Mallan v. May, 11 Mees. & Welsh. 653. The first of these cases was dis-
tinguished from that of Bunn v. Guy, 4 East, 190, where an attorney's agree-
ment not to practise "within London and one hundred and fifty miles from
thence " was held valid. Tindal, C. J., said that an attorney's business, which
may be carried on by correspondence and agents, required a limit of much
larger range than the business of a dentist, which requires his personal pres-
ence and that of his patients togetlier at the same place.
(fc) Taylor V. Blanchard, 13 Allen, . See Ward v. Byrne, 5 Mees. &
Welsh. 548.
(c) Chesman i'. Nainby, 2 Strange, 739 and 2 Ld. Raym. 1456. Mallan
UNLAWFUL. 235
In Alger v. Thacher, 19 Pick. 51, a bond in which the
obligor engaged not, " at any time " thereafter, to carry on or
use the art or occupation of an iron founder or the business
of founding or casting iron, was held to be void, as it pur-
ported to exclude the obligor, everywhere, and at all times,
from a participation in the trade or business referred to. In
Wallis V. Day, Murph. & Hurlst. 22 and 2 Mees. & Welsh.
273, a covenant to serve the obligees during the covenantor's
life as an assistant in the trade of a carrier, and not other-
wise to exercise that trade, was held not to be void, inasmuch
as he was not absolutely restrained from carrying on the
trade, but only from carrying it on any other way than as an
assistant of the obligees. Lord Abinger said that there was
no authority that made illegal the contract to serve for life.
" Suppose," said he, " a man engaged in trade is desirous,
when old age approaches, of selling the good will of his busi-
ness, why may he not bind himself to enter into the service
of another, and to trade no more on his own account. So
long as he is able, he is bound to render his services; and
it cannot be said to be a contract in absolute restraint of
trade, when he contracts to serve another, for his life, in the
same trade." And he cited Wickens v. Evans, 3 Y. & Jerv.
318.
The leading case, on this subject of restraint of trade, is
Mitchel V. Reynolds, 1 P. W. 181, which was several times
argued, and in which Chief Justice Parker, of fhe King's
Bench, elaborately discussed the doctrine and the prior decis-
ions, and " delivered the resolution of the court " in an opin-
ion that has ever since been regarded as a guiding authority,
as well in this country as in England, (a) In that case, it was
V. May, 11 Mees. & Welsh. 653. Lange v. AVeik, 2 Ohio State K. 519.
Aloock V. Giberton, 5 Duer, 76. Beard r. Dennis, 6 Ind. 200.
(a) The following are American cases, the particulars of which are not
hereafter stated, but which conform, in principle, to Mitchel r. Reynolds, and
to other English cases. Pike v. Thomas, 4 Bibb, 486. Kellogg v. Larkin, 3
Chand. (Wis.) 133. Nobles v. Bates, 7 Cowen, 307. Chappel ». Brockway,
21 "NVend. 157. Van Marter v. Babcock, 23 Barb. 633. Bowser v. Bliss, 7
Blackf. 344. Gilman v. Dwight, 13 Gray, 356. Palmer v. Stebbins, 3 Pick.
148. Stearns v. Barrett, 1 ib. 443. Pierce v. Woodward, 6 ib. 206.
236 LAW OF CONTRACTS.
decided that an assignment of a lease of a messuage and
bakehouse for the term of five years, was a legal considera-
tion for a bond, by the assignee, engaging not to exercise his
trade of a baker within the parish where the bakehouse was
situate, during the said term.
This case was followed by Chesraan v. Nainby, 2 Strange,
739 and 2 Ld. Raym. 1456, where a shopkeeper took a
servant upon wages, in the business of a linen draper, which
the servant was expected to learn and " become a perfect and
knowing person in the said trade and mystery." He gave to
the draper a bond of XlOO, not to set up or exercise said trade
within half a mile of the draper's house. This contract
was held to be valid ; as it appeared that it was a part of the
draper's inducement to take the servant into his employ, and
that £100 was the sum which the draper might reasonably
expect to receive from an apprentice to the trade. So of a
bond, on similar consideration, wherein the obligor engaged
not to exercise his trade within the city and liberties of West-
minster, (a) So of a bond, not to practice as surgeon, &c., on
the obligor's own account, for fourteen years, in consideration
that the obligee had taken him as an assistant in the business
of surgeon, &c., " for so long a time as it should please the
obligee." The being admitted as an assistant of an estab-
lished practitioner, with a view to the credit to be derived from
that situation, was deemed a reasonable consideration for the
bond, (b) So also of a sealed contract, on a proper considera-
tion, not to carry on the business of a rope- maker during life,
except on government contracts, and for such of the party's
friends, as the obligee should refuse to supply on credit, (c)
An agreement on a legal consideration, not to be interested,
directly or indirectly, in any voyage to the northwest coast of
America, or in any traffic with the natives of that coast, for
seven years, is valid ; and it is a breach of such agreement
(a) Clorke v. Comer, Cunningham's Rep. 51,7 Mod. 230 and Rep. Temp.
Hardw. 53.
(b) Davis V. Mason, 5 T. R. 118, and see Hay ward v. Young, 2 Chit. R.
407.
(c) Gale V. Reed, 8 East, 80.
UNLAWFUL. 237
to own and fit out a vessel for such voyage, though the party
divest himself of all interest in the vessel and cargo before the
departure of the vessel on her voyage, (a) A covenant not
to carry on nor assist in carrying on the sale of certain de-
scribed goods, on certain premises, or within two miles thereof,
was held to be broken by the covenantor's supplying such
goods, from a place beyond the prescribed limit, to persons re-
siding within that limit, at their solicitation, (b) A bond not
to engage in the business of iron casting within certain limits,
is broken by the obligor's becoming a stockholder in a corpo-
ration carrying on that business within those limits, or by
being employed by such corporation in carrying on their busi-
ness, (c)
Monopolies are odious and generally contrary to the com-
mon law. They are said to be contrary to Magna Charta.
A grant, however, of the sole use of a newly invented art is
held to be good, being indulged for the encouragement of
ingenuity. By the English statute of James I., and by the
patent laws of the United States, such grants are limited to a
few years. Agreements, therefore, concerning the disposition
and use of patented machines, &c., though in restraint of
trade, are not for that reason void. And a bond or other
specialty, by which a patentee should engage not to use his
machine could not be avoided for want of consideration. In-
deed a transfer of his right, per se renders him legally liable to
damages, if he afterwards uses the invention. That he may
make such transfer, without consideration, if he please to give
away his right, would not seem to admit of doubt. Secrets
of art, not patented, are not within the scope of the law
against restraint of trade. Thus, it has been decided that a
trader may sell a secret in his trade, and restrain himself, per-
sonally, from the use of it. {d)
(a) Perkins v. Lyman, 9 Mass. 522.
(6) Brampton v. Beddoes, 13 C. B. N. S. 538, See also Turner v. Evans,
2 El. & Bl. 512. Duffy v. Shockey, 11 Ind. 70.
(c) Whitney v. Slayton, 40 Maine, 224. And see 51 ib. 146.
Id) Bryson i'. Whitehead, 1 Sim. & Stu. 74. Vickery v. Welch, 19 Pick.
523. See also Jones v. Lees, 1 Hurlst. & Norm. Ib9.
238 LAW OF CONTRACTS.
A post oh'dt contract, that is, an agreement, on the receipt
of money, to pay a larger sum than is received by the prom-
isor, and the legal rate of interest, on the death of a person on
whom the promisor has some expectation, if the promisor be
then alive, is void, if advantage be taken of his necessity to
induce him to make such agreement, and he will be relieved
in chancery ; but it is valid, if made on terms in which the
stipulated payment is not more than a just indemnity for the
hazard. And there are data on which it can be ascertained
whether this kind of contract is reasonable or unreasonable;
for the lives of the promisor and of the person on whose death
payment is to be made, are subject to valuation on principles
and calculations established in all life-insurance offices, (a)
In Boynton v. Hubbard {h) a covenant made by an heir to
convey, on the death of his ancestor, if he should survive him,
a certain undivided part of what should come to him by de-
scent, was held to be void at law as well as in equity, being
a fraud on the ancestor and productive of public mischief.
Though this was not strictly a post obiit contract, yet it was
held to fall under the principle of the cases, which are usually
litigated in chancery, of heirs dealing with their expectancies.
Parsons, C. J., said, '' in unconscionable post obiit contracts,
courts of law may, when they appear, in a suit commenced
on them, to have been against conscience, give relief by direct-
ing a recovery of so much money only as shall be equal to
the principal received and the interest." See 1 Atk. 347.
All wagers are void that are contrary to public policy. As
on the question of war or peace ; on the event of an elec-
tion ; (c) on the life of a foreign potentate whose country is
(a) See Gowland r. DeFaria, 1 7 Ves. 20, and remarks on that case in 7
Clark & Fin. 458, by Lord Cottenham. Newland on Con. c. xxix. Reeve
Dom. Rfl. 419. 2 Powell on Con. 187 ^ seq. Earl of Chesterfield v.
Jansen, 1 Wils. 286. Baugh v. Price, ib. 320. 1 Story on Eq. §§ 342 ^ seq.
8 Pick. 480. 3 Met. 121.
(h) 7 Mass. 112.
(c) 3 Stark. Ev. (4th Amer. ed.) 1656. Rust v. Gott, 9 Cowen, 169.
Yates V. Foot, 12 Johns. 1. Stoddard v. Martin, 1 R. I. 1. Ball v.
Gilbert, 12 Met 397. McKee v. Manice, 11 Cush. 357. McAllister v.
UNLAWFUL. 239
at war with that of either of the parties to the wager ; (a) or
on the amount of any branch of revenue, {b)
By the common law of England, wagers respecting indif-
ferent matters were lawful; but the common law on this
subject has not been adopted in New Hampshire ; Perkins
V. Eaton, 3 N. Hamp. 155 ; and has never been -supposed
to be in force in Massachusetts. See 12 Met. 399. By an
act of parliament, (8 & 9 Vict. c. 109, § 18,) all contracts
or agreements, by way of gaming or wagering are now made
void. See Addison on Con. (5th ed.) 901. Also 2 Smith
Lead. Cas. (6th Amer. ed.) 340, " as to what cases amount to
wagers within the meaning of this act."
In Texas and California all wagers are recoverable except
such as are prohibited by statute, or are against pubhc policy,
or tend to affect the interest, character, or feelings of third
parties. A wager on a horse-race is recoverable in those
States, (c) And the courts in New Jersey, Delaware, and Illi-
nois hold that wagers on indifferent questions are not pro-
hibited in those States, (d)
It is against the policy of the law to allow seamen to re-
cover on a promise of increased wages for extra work done
during the voyage for which they shipped, (e) or a witness to
recover on a promise of being paid more than the legal fee
Hoffman, 16 Serg. & R. 147. Allen v. Hearn, 1 T. R. 56. Porter v. Saw-
yer, 1 Harrington, 517. Wheelers. Spencer, 15 Conn. 28. Wroth v. Johns,
4 Har. & McHen. 284. Murdock v. Kilbourn, 6 Wis. 468. It is held in Illi-
nois that a wager there on the result of a Presidential election in another
State is not unlawful. Smith v. Smith, 21 Illinois, 244.
(a) Gilbert v. Sykes, 16 East, 150.
(b) Atherfold v. Beard, 2 T. R. 610. Shirley v. Sankey, 2 Bos. & Pul.
130.
(c) Johnson i;. Fall, 6 Cal. 359. Kirkland v. Randon, 8 Texas, 10. Bass
V. Peevey, 22 ib. 295.
(d) 4 Zab. 576. 5 Harrington, 347. 3 Scammon, 529.
(e) Stilk V. Meyrick, 6 Esp. R. 129 and 2 Campb. 317. Harris v. Watson,
Peake's Cas. 72. Harris v. Carter, 3 El. & Bl. 559. Bartlett v. Wyman,
14 Johns. 260. White v. Wilson, 2 Bos. & Pul. 116. Frazer v. Hatton, 2
C.B.N. S. 512.
240 LAW OF CONTRACTS.
for his attendance a court, (a) And see post. 244 as to prom-
ises to pay officers more than their established fees, &c.
Trading with subjects of an enemy's country, ivithout the license
of the constituted authorities.
" The law," says Chancellor Kent, 16 Johns. 483, " puts the
sting of disability into every kind of voluntary communica-
tion and contract with an enemy, which is made without the
special permission of the government." Hence, a policy of in-
surance on enemy's property is void. (5) So of bills of ex-
change, promissory notes, and other contracts, (c)
In Antoine v. Morshead, {d) it was held that an alien enemy,
a Frenchman, to whom a bill of exchange was indorsed,
drawn by one English prisoner in France, in favor of another,
on a house in England that accepted it, might maintain an
action upon it, on the return of peace, against the acceptors.
Chambre, J., said this was not a contract between an English
subject and an alien enemy. And Kent, Ch. (16 Johns. Rep.
471) says the case had nothing to do with voluntary inter-
course in the way of mercantile negotiation and trade.
Where an American vessel, pretending to be a neutral,
went into Bermudas, and in the character of a neutral ob-
tained credit for repairs, during war, it was held that the
owners of the vessel were answerable, on the restoration of
peace, to the British merchants who assisted them to repair ;
on the ground that the plaintiffs were ignorant of the national
character of the vessel, and dealt upon the faith that they were
trading with a neutral, {e) A license from a British admiral,
to protect a ship from capture on a particular voyage, during
war between this country and Great Britain, was held not to
be a lawful consideration for a promissory note given to the
(a) Willis V. Peckham, 1 Brod. & Bing. 515 and 4 Moore, 300. See
Sweany v. Hunter, 1 Murph. 181.
(6) See the cases on this point, 1 Phillips on Insurance, (3d ed.) §§ 147
5" seq.
(c) 7 Taunt. 449, and cases in a note to the American edition.
Id) 6 Taunt. 237.
(e) Musson v. Fales, 16 Mass. 332.
UNLAWFUL. 241
seller by the buyer of the license (a) A copartnership between
subjects of different governments is dissolved, or suspended,
by a war between the countries of which the copartners are
subjects, (h) A license from the government legalizes the
contracts of its subjects with foreign enemies, so far as to en-
able them to enforce such contracts in the courts of the licens-
ing governments, and to protect the party from prize law. (c)
Ransom bills, &c., form an exception to the general law on
this subject, as stated ante, 95.
Contracts to obstruct the course of justice, the execution of legal
process, or to indemnify officers against nonfeasance, misfeas-
ance, or malfeasance, in their official business.
Contracts to do acts of this kind, which are punishable as
crimes, have already been mentioned.
Nonfeasance is the omission of an act which the party
ought to do. Misfeasance is the improper performance of an
act which may lawfully be done. Malfeasance is the doing
of an an act which ought not to be done at all. (d)
A promise by a friend of a bankrupt to pay such sums as
the bankrupt is charged with having received and not ac-
counted for, if the assignees and commissioners will forbear
to examine him respecting those sums, is void for illegality, (e)
So of a promise to pay money in consideration that the
promisee will not oppose the promisor's discharge under an
insolvent law. (/) And of a promise by a third person to pay
part of an insolvent's debt, in order to obtain his creditor's
signature to the insolvent's petition, (g) And of a promise
by a turnpike corporation that certain persons shall be ex-
empted from paying toll at its gates, if they will withdraw their
(a) Patton v. Nicholson, 3 Wheat. 204. A different decision will be found
in 13 Mass. 26.
(b) Seaman c. Waddington, 16 Johns. 510.
(c) See Mr. Wheaton's note to Patton v. Nicholson, 3 "Wheat. 207.
(d) 2 Instructor Clericalis, 107. 1 Chit. PI. (6th Amer. ed.) 151.
(e) Nerot v. Wallace, 3 T. R. 17. Kaye v. Bolton, 6 ib. 134.
(/) Tuxbury w. Miller, 19 Johns. 311. Waite v. Harper, 2 Johns. 386.
Bruce V. Lee, 4 Johns. 410. Goodwin v. Blake, 3 Monroe, 106.
(g) Yeomans v. Chatterton, 9 Johns. 295. Po.n. 271.
16
242 LAW OP CONTRACTS. ,
opposition to a legislative act respecting the alteration of the
road, (a) And of a promise by an officer, who had seized
goods on an ele(/it, that if the creditor would take out a new
elegit and deliver it to him, he would procure the goods to be
found by an inquisition, and would deliver them to such per-
son as the creditor should appoint ; for he was bound to return
an indifferent jury, (b) So of an agreement with an officer
to permit a prisoner to escape, (c) So of an agreement to in-
demnify an officer, if he will permit an escape, (d) And of
an agreement to deliver an execution debtor to an officer at a
future day, in consideration of his forbearing to arrest the
debtor when in his presence and power ; (e) or to surrender a
prisoner on mesne process, or pay the debt and cost, in con-
sideration of his being permitted to go at large until the re-
turn day of the writ. (/) Otherwise, if the undertaking be
to the plaintiff in the suit, (g) If the undertaking be to the
officer, he must pursue the statute of 23 Hen. VI. and take a
bail bond in his own name, (h) In Benskin v. French, (i) a
promise to a bailiff to deliver to him, the next morning, a
prisoner whom he had arrested, in consideration of his being
permitted to remain in the promisor's house during the night,
was held to be valid ; the court not inferring from the state-
ment that there was an escape, as the officer also might have
remained in the house. Whether any judgment was rendered
in this case is made a question in T. Jon. 139 ; and in 1 T.
R. 422, BuUer, J., says the case is to be upheld on the ground
that the promise was " made on the plaintiff's part," that is,
(a) Pingry v. Washburn, 1 Aik. 264.
(b) Morris v. Chapman, 1 Freeman, 32, Carter, 223 and T. Jon. 24.
(c) Featherston v. Hutchinson, Cro. Eliz. 199 and 3 Leon. 108. Blithman
V. Martin, 2 Bulst. 213 and Godb. 250.
(d) Plowd. 60. Iletley, 175. Yelv. 197. 7 Johns. 159. 7 Greenl. 113.
2 Chip. 11.
(e) Denny v. Lincoln, 5 Mass. 385. Fanshor v. Stout, 1 Soutliard, 319.
(/) Rogers V. Reeves, 1 T. R.418.
(g) Milward v. Clerk, Cro. Eliz. 190. Leech v. Davys, Aleyn, 58. Hill v.
Carter, 2 Mod. 304.
(h) Fuller r. Prest, 7 T. R. 110.
(i) 1 Sid. 132, 1 Keb. 483 and 1 Lev. 98.
UNLAWFUL. 243
made to the bailiff in behalf of the plaintiff, and thus ranging
with the cases before cited from Cro. Eliz., Aleyn, and 2 Mod.
From the report of this case by Levinz, it seems that the ac-
tion was brought by the original plaintiff, declaring on a prom-
ise to the bailiff ex parte quoerentis. And so the matter is
stated in T. Jon. 139.
By the statute of 23 Hen. VI. c. 9, officers are prohibited to
take any obligation of a prisoner who is entitled to be bailed,
except to themselves, and in the name of their office ; and all
other obligations taken upon the enlargement of prisoners, or
by color of office, are declared to be void. In most particu-
lars, this statute is merely in affirmance of the common law,
and is in force as the common law of many States in the
Union. All bonds, and other engagements, taken for ease and
favor, in contravention of the spirit of this statute, are void. («)
This statute mentions only " sheriffs, under-sheriffs, and other
officers and ministers." It has been held that the sergeant
at arms of the house of commons is not an officer, within
the statute, and yet that a bond given to him by a prisoner
ordered into his custody by the house, conditioned to ap-
pear, &c., is void by the common law, being for ease and
favor, (b) So of a bond, taken by the marshal of the king's
bench, who is not named in the statute ; (c) and so, it would
seem of a bond given to the sergeant at arms of the marches
of Wales, (d)
The statute mentions obligations only ; yet all parol under-
takings are equally within its purview and spirit, (e) In all
cases of bonds and other engagements taken of prisoners by
officers, the material question is whether they were given for
(a) See Bac. Ab. Sheriff, O. Law of Arrests, 104, 105. Dole v. Bull, 2
Johns. Cas. 239. Richmond v. Roberts, 7 Johns. 319. Strong v. Tompkins,
8 Johns. 98.
(b) Norfolk's case, Hardr. 464.
(c) Bracebridge v. Vaughan, Cro. Eliz. 66.
Id) Johns V. Stratford, Cro. Car. 309.
(e) Beawfage's case, 10 Co. 101. Sedgworth v. Spicer, 4 East, 568. Fuller
V. Prest, 7 T. R. 110. Strong v. Tompkins, 8 Johns. 98.
244 LAW OF CONTRACTS.
ease and favor, (a) Obligations for ease and favor are those
only which are given to purchase an indulgence not authorized
by law. Hence bonds fey the debtor's liberties, under statutes
which authorize the taking of bonds of that kind in a specified
form, are not void, though they are not strictly according to
such form, (b) All contracts and engagements between officers
and defendants are watched with a jealous eye by courts, in
order to prevent oppression undw the semblance of indulgence
and humanity, (c)
Since the statute of 23 Hen. VI. (if not before) all promises
to officers, to induce them to accept bail, are void ; for it is
their duty to accept sufficient bail when offered ; and a con-
tract to accept insufficient bail is void, as it is a contract to
violate their duty, (d) Wherever it is the duty of a person in
a public trust to do an act, and he exacts a promise from him
for whose benefit it is to be done, to compensate him for the
service, the consideration is unlawful and the promise void.(e)
A fortiori is a promise void, when made for the payment of
more than the sum provided by law for the performance of any
official duty. (/) Demanding and receiving more than legal
fees is an indictable offence; maybe punished by fine ; sub-
jects the offender to a qui tarn action for a penalty ; and is a
good cause of action for reclaiming the excess in assumpsit
for money had and received, {g)
Though an agreement to indemnify an officer for doing an
unlawful act is void, yet a bond to save an officer harmless
(a) See Lenthall v. Cooke, 1 Saund. 161, and notes to that case. Also 1
Vent. 237. 2 Salk. 438. Oke's case, 1 Freeman, 375.
(h) Baker v. Haley, 5 Greenl. 240. Burroughs v. Lewder, 8 Mass. 373.
(c) See Reed v. Pruyn, 7 Johns. 430. Sherman v. Boyce, 15 Johns. 443.
Sugars V. Brinkworth, 4 Campb. 47.
{(I) Stotesbury v. Smith, 2 Bur. 924. Highmore on Bail, 28.
(e) Bridge v. Cage, Cro. Jac. 103. Callagan v. Hallett, 1 Caines, 104.
Hatch y. Mann, 15 Wend. 50. Smith v. Whlldiu, 10 Barr, 39. Stotesbury
V. Smith, 2 Bur. 926 and 1 W. Bl. 204.
(/) Batho V. Salter, Latch, 54 and W. Jon. 65. Woodgate v. Knatchbull,
2 T. R. 148. Lane v. Sewall, 1 Chit. R. 175. Dew v. Parsons, ib, 295 and
2 B. & Aid. 562. Rea v. Smith, 2 Handy, 193. Pool v. City of Boston, 5
Cush. 219.
{(j) 1 Hawk. c. 27. Jons v. Perchard, 2 Esp. R. 507.
UNLAWFUL. 245
for an unlawful act already done is valid, (a) The considera-
tion is not illegal, and the seal imports a sufficient considera-
tion, or supersedes the necessity of any.
When goods are seized by an officer on execution, a con-
tract to pay the debt, in consideration of his releasing them,
is not unlawful. This is entirely different from a promise in
consideration of suffering a prisoner to go at large. (&) And
it is the constant practice in' Maine, New Hampshire, and
Massachusetts, where attachments are made on mesne process,
for the officer to deliver the property attached to a third per-
son, taking his promise to return it, or to pay the judgment
which the plaintiff may recover, or an agreed sum, if he fail
to return it. This has never been deemed illegal, and such
promises have often been enforced by action, (c)
A bond, taken by a sheriff from his deputy and sureties,
engaging to indemnify the sheriff against all misconduct of
the deputy for which the sheriff is responsible, is not illegal ;
as its object is not to induce illegal acts ; {d) nor is a promise
of indemnity to a sheriff against the misconduct of a bailiff
appointed at the promisor's suggestion or request. In such
cases, the act of the bailiff is regarded as the act of the party
soliciting his appointment ; that is, the plaintiff in the original
writ ; and the court will not allow the sheriff to be troubled
by him in consequence of any neghgence or misbehavior
of the bailiff, (e)
In all cases of promises to indemnify against unlawful acts,
this distinction holds, namely, if the act, directed or agreed to
be done, is known, at the time, to be a trespass and unlawful,
the promise of indemnity is unlawful and void ; otherwise, it
is a good and valid promise.
This class of cases has already been fully considered. Ante,
(«) Hackett v. Tilly, Holt, 201, 11 Mod. 93 and 2 Ld. Raym. 1207. Fox
V. Tilly, 6 Mod. 225. Given v. Driggs, 1 Caines, 450, 460. Hall v. Huntoon,
1 7 Verm. 244.
(b) Love's case, 1 Salk. 28.
(c) 14 Mass. 195. 16 ib. 8, 453, 464. 3 Greenl. 357. 7 N. Hamp. 594.
(d) Norton v. SImmes, Hob. 12. Bac. Ab. Sheriff, H. 2. 11 Mod. 93, 94.
(e) Dabridgecourt v. Smallbrooke, Owen, 97 and Cro. Eliz. 178. De-
Moranda v. Dunkin, 4 T. R. 11 9.
246 LAW OF CONTRACTS.
11-13. Ignorance of the moral quality of actions, or of the
law relating to offences, will not excuse a breach of law, nor
render legal an engagement to save an offender harmless,
in consideration of his committing a punishable offence, (a)
Therefore A.'s license to B. to beat him is void, though it is
tantamount to a promise not to seek redress for the injury ; for
the beating is a breach of the peace, and indictable, {b)
All contracts, the object of which is to induce an omission
of duty, are unlawful and void, no less than those which are
made for the purpose of encouraging the commission of un-
lawful acts, (c)
11. CONTRACTS WHICH VIOLATE THE PROVISIONS OF A STATUTE.
Before stating the principles which govern the main subject
of this division, it may be well to state the doctrine respecting
contracts void in part only, and the alleged difference, as to
this matter, between contracts which violate statutes, and
those which violate the common law.
It has heretofore been mentioned that if one of two con-
siderations of a promise be void merely, the other will support
(a) See 1 Comyn on Con. 1st ed. 31. 1 Powell on Con. 166. Allen v.
Rescous, 2 Lev. 174.
(b) Matthew v. OUerton, Bui. N. P. 16, and Comb. 218. Stout v. Wren, 1
Hawks, 420. Logan v. Austin, 1 Stew. 476. Qucere, whether an action
would lie for a blow received in those exercises that prepare for the defence
of the country, or in mere athletic exercises, where the necessary conse-
quences of the exercise are not detrimental to the party ? See Keilw. 136, a.
3 Inst. 56. 1 Mod. 136. 2 Bishop on Crim. Law, § 592.
In the Mirror, c. I., sect. 13, is this passage : " Of misadventures in turna-
ments in courts and lists, king Henry the 2 ordained, that because at such
duells happen many mischances ; that each of them take an oath that he
beareth no deadly hatred against the other, but oncly that he endeavoureth
with him in love to try his strength in those common places of lists and duells,
that he might the better know how to defend himselfe against his enemies;
and therefore such mischances are not supposed felonj', nor the coroners have
not to doe with such mischances which happen in such common meetings
where there is no intent to commit any felony." See 1 Hale P. C. 472, 474.
Foster's Crown Law, 259, 260.
(c) Goodalc r. Holridge, 2 Johns. 193. Norton v. Syms, Moore, 856.
Greenwood v. Colcock, 2 Bay, 67. Hodsdon t;. Wilkius, 7 Greenl. 113.
UNLAWFUL. 247
the promise ; but that if one of two considerations be unlawful,
the promise is void. When, however, the illegality of a con-
tract is in the act to be done, and not in the consideration, the
law is different. If, for a legal consideration, a party under-
takes to do two or more acts, and part of them are unlawful,
the contract is good for so much as is lawful, and void for the
residue. Wherever the unlawful part of a contract can be
separated from the rest, it will be rejected, and the remainder
established. This cannot be done when one of two or more
considerations is unlawful, whether the promise be to do one
lawful act, or two or more acts, part of which are unlawful ;
because the whole consideration is the basis of the whole
promise. The parts are inseparable. Otherwise, there would
be two or more contracts, instead of one. But where, for one
or more lawful considerations, a promise is made to perform
a legal act and also an act illegal, there is no difficulty in sus-
taining and enforcing the promise pro tarda; for so far the
contract has all the properties which the law requires. It is
" an agreement, upon sufficient consideration, to do a legal
act." The illegal act which is also agreed to be done, may
be rejected without interference with the other. Therefore,
says Hutton, J., {a) " at the common law, when a good thing
and a void thing are put together in one self-same grant, the
same law shall make such a construction, that the grant shall
be good for that which is good, and void for that which is
void." By " void," in this passage, is meant void for illegality,
as the context shows, and as it has been received and under-
stood, {h) So if any part of the condition of a bond be
against law, it is void for that part, and good for the rest ; or
if a bond be given for the performance of covenants contained
in a separate instrument, some of which are lawful and others
unlawful, (c) So of parol contracts.
But it was asserted, until it became a maxim, that if any
part of an agreement be contrary to a statute, the whole is
(a) Bishop of Chester v. Freeland, Ley, 79.
(&) See 8 East, 236. 1 Johns. 362.
(c) Chamberlain v. Goldsmith, 2 Brownl. 282. Xorton v. Syms, Moore,
856.
248 LAW OP CONTRACTS.
void, (a) This distinction seems to stand on no sound prin-
ciple ; and, upon examination, will not be found, as a general
rule, to be supported by authority.
The first case on the point is believed to be Lee & wife v.
Coleshill, [h) under the statute of 5 Edw. VI. prohibiting the
sale of offices, &c. By the third section of that statute, " all
such bargains, sales, promises, bonds, agreements, covenants
and assurances," are declared to be void, (c) According to
the report in Croke, Coleshill, a custom-house officer, made
one Smith his deputy, and covenanted [inter alia) to surrender
his old patent of office and procure a new one to Smith and
himself, before a certain day ; and that if Smith died be-
fore him, he would pay to Smith's executors £300 ; and gave
Smith a bond to perform these covenants. Upon a suit on
this bond, by the executors of Smith, it was held that the
whole was void, though some of the covenants might be law-
ful ; " otherwise," said the counsel, " all the meaning of the
statute should be defrauded by putting in la lawful covenant
within the indenture." Yet the counsel further said, " for the
good covenants, peradventure an action of covenant would lie,
if they be not performed ; " that is, an action on the covenants,
but not on the bond given to secure performance of them.
The case is reported somewhat differently in 2 Anderson, 65,
by the name of Smyth v. Colshill, but the same ground of de-
cision is taken.
Afterwards, the distinction, on this point, between the com-
mon law and a statute, was asserted, arguendo, in many cases,
as a general principle, [d) Twisden, J., and Chief Justice Wil-
mot are reported to have ascribed to Lord Hobart the dictum^
often repeated in the books, that " a statute is like a tyrant ;
where he comes, he makes all void. But the common law is
like a nursing father ; it makes only void that part where the
(a) 1 Saund. 66, note. 1 Powell on Con. 199.
(6) Cro. Eliz. 529.
(c) See Bac. Ab. Offices, &c. B.
{d) See Pearson v. Humes, Carter, 230. Mosdel v. Middleton, 1 Vent
237. 11 Mod. 94, by Powell, J. 2 Wils. 351, by Wilmot, C. J. 3 Taunt.
244, by Lawrence J.
UNLAWFUL. 249
fault is, and preserves the rest." The cases in which this dis-
tinction is laid down as a general principle, were mostly on
bonds taken by officers, contrary to the statute of 23 Hen. VI. ;
and it was tJiis statute Qhe statute, not a statute) which Lord
Hobart compared to a tyrant. " I have heard Lord Hobart
say," says Twisden, J., " that because the statute would make
sure work, and not leave it to exposition what bonds should
be taken, therefore it was added that bonds taken in any other
form should be void; for said he, the statute is like a tyrant,"
&c. (a) That statute prescribed the form of the obligation
which an officer should take from a person arrested, and ex-
pressly made " any obligation, in other form, void." Hence
it is said, (b) " if a sheriff will take a bond for a point against
that law, and also for a due debt, the whole bond is void ; for
the letter of the statute is so ; for a statute is a strict law ;
but the common law doth divide according to common reason,
and having made that void which is against law, lets the rest
stand." (c)
To the case of Norton v. Simmes (d) may be traced most
of the dicta in the books, on the point now in question. In
the three reports of that case, a principle is advanced, general
in its terms ; but it is in reference to the statute of Hen. VI. ;
.and the point was not adjudged. The suit, in that case was
on a bond for the performance of several covenants, some of
which were void by the common law ; and the plaintiff had
judgment for damages sustained by the non-performance of
the valid covenants.
The compiler of Bacon's Abridgment (Sheriff, H. 2.) seems
to have understood the distinction as existing only under the
statute of Henry VL and other statutes (if any) in which a
specific form of obligation is prescribed, and all other forms
forbidden ; and Lawrence, J., in 8 East, 236, 237, expressly
asserts the same ; which renders it remarkable that he should
afterwards, in 3 Taunt. 244, have advanced the doctrine as a
general one.
(a) 1 Mod. 35. (&) Hob. 14.
(c) See Shep. Touch. 374. Plowd. 68.
(d) Hob. 12, 1 Brownl. 63 and Moore, 856.
250 LAW OP CONTRACTS.
If then any part of a contract is valid, it will avail pro tanto,
though another part of it may be prohibited by statute ; pro-
vided the statute does not expressly, or by necessary implica-
tion, render the whole void ; and provided also, that the sound
part can be separated from the unsound. As to the possibility
of such separation, however, there is no difference between
contracts against the common law, and against a statute.
Such is the true principle, and such, it will be found, are the
modern decisions.
Thus, if in a deed a rector or vicar grants a rent-charge out
of his benefice, contrary to the statute of 13 Eliz. c. 20, and
also covenants personally to pay the rent-charge, he is liable
on his covenants, though the grant is void for illegality, (a)
So a bill of sale of a ship, by way of mortgage, though void
as such, for want of a recital of the certificate of registry re-
quired by statute of 26 Geo. III., may be good as a covenant
to repay the money borrowed ; such covenant being contained
in the same instrument, (b) So if there be in a deed one
limitation to a charitable use, and therefore void by statute of
9 Geo. II., yet other limitations in the same deed, which are
not within the statute, are not therefore void, (c) The case
of Greenwood v. Bishop of London (d) is a strong authority
to the same point. A conveyance of an advowson, including
the next presentation, was made for an entire sum, and was
supported for the advowson only ; the conveyance of the next
presentation being void for simony, which is a statute offence.
There are also several perfectly analogous cases on the prop-
erty tax act of 46 Geo. III. (e)
It appears, from these cases, that when the invalid part of
an agreement can be separated from the valid, the latter shall
stand, although the former be declared void by statute. And
(a) Mouys v. Leake, 8 T. R. 411.
(i) Kerrison v. Cole, 8 East, 231.
(c) Doe V. Pitcher, 6 Taunt. 369.
(d) 5 Taunt. 727. See also Newman v. Newman, 4 M. & S. G6.
(e) Wigg 6^. Shuttleworth, 13 East, 87. Gaskell y. King, 11 East, 165.
Howe V. Syngc, 15 East, 440. Tinkler v. Prentice, 4 Taunt. 549. Fuller v.
Abbott, ib. 105. Readshaw v. Balders, ib. 5 7.
UNLAWFUL.
251
it may be inferred that a case like that of Lee & wife v. Coles-
hill, (a) would now be differently decided, unless (according to
what would seem to be the better opinion) the lawful cove-
nant, in that case, should be deemed dependent on that which
was unlawful, and so the void part inseparable from the
sound, (b)
In Crosley v. Arkwright and Denn v. Dolman, (c) under
the annuity act of 17 Geo. III., it was held that the want of
a memorial of an annuity deed, registered according to the
directions of the statute, avoided the whole deed, though
there were parts of it not connected with the annuity. The
court held themselves bound by the words of the statute,
which declares annuity deeds, of which a memorial is not
registered, "void to all intents and purposes whatsoever."
These decisions were questioned by Mr. Evans, in his Notes
to the Annuity Act, and by Mr. Ellis in his treatise on the Law
of Debtor and Creditor, p. 377, note (o). By the subsequent
decisions in analogous cases (already cited) the part of the deed
which related to the annuity would alone seem to be within
the operation of the statute. " The judges," says Chief Justice
Wilmot, ''formerly thought an act of parliament might be
eluded, if they did not make the whole void, if part was
void." (d)
It is often laid down in the books, that if any part of an
agreement is void by the statute of frauds, &c., the whole is
void. An examination of the cases, however, will show
that this is too broadly asserted, and that the true doctrine
does not rest upon any distinction between agreements void
in part by statute, and void in part by the common law. The
principle of the decisions under the statute of frauds, &c., is
the same as in the other cases already mentioned, and is this ;
to wit, if the part of the agreement, which is void by the
statute, is so involved with the rest of the agreement (which,
(a) Cro. Eliz. 529. 2 And. 55.
(5) See Ley, 79. Hob. 14 a, note (2) by Judge Williams. Bac. Ab.
Offices, &c., F.
(t) 2T. R. 603. 5ib.641.
(d) 2 Wils. 351.
252 LAW OP CONTRACTS.
if standing alone would be valid,) as not to admit of separa-
tion, the whole is void ; otherwise not.
The first case on this point is Lord Lexington v. Clarke &
wife, (a) where a woman, after her husband's death, in con-
sideration of being permitted to occupy premises which were
leased to her husband, promised orally to pay the rent which
had accrued during his life, as well as the rent which should
subsequently accrue during her occupation. The court held
this to be an entire agreement ; and the promise, as to one
part, being void by the statute of frauds, &c., it could not
stand good for the other part. In Cooke v. Tombs, (b) the
same rule was applied to an unwritten agreement for the
sale of real and personal property; to wit, houses, docks,
and timber for ship-building. On the authority of this last
case. Chief Baron Macdonald shortly after ruled the point
in the same way, at nisi prius. (c) Three years afterwards,
the court of King's Bench decided the point in the same way,
in Chater v. Beckett, (d) Lord Kenyon said, " The promise
was void in part by the statute, and the agreement being entire,
the plaintiff cannot separate it, and recover on one part of the
agreement, the othei being void." Grose, J., said, " It was one
indivisible contract, and the plaintiff cannot recover on any
part." The same was also held in Thomas v. Williams, 10
Barn. & Cres. 664 and 5 Man. & Ryl. 625. But in Wood
V. Benson, 2 Crompt. & J. 94 and 2 Tyrwh. 93, Lord Lynd-
hurst said " the case of Thomas v. Williams may, as appears to
me, be supported. Part of the contract, in that case, was void
by the statute of frauds. The declaration stated the entire
contract, including that part of it which was void, and there-
fore the contract, as stated in the declaration, was not proved.
The same observation applies to Lexington v. Clarke and
(a) 2 Vent. 223.
(b) 2 Anstr. 420. According to subsequent decisions, the agreement con-
cerning the personal property was void also, under the statute. But as it was
not so regarded by the court, the case supports the decision in Lexington v.
Clarke. See Roberts on St. of Frauds, 111, note (53).
(c) Lea V. Barber, 2 Anstr. 425, note.
(d) 7 T. R. 201.
UNLAWFUL. 253
Chater v. Beckett ; and I have no disposition to complain of
those decisions ; because, in none of those cases does there
appear to have been any count upon which the plaintiff could
recover." Baron Bayley said, " It by no means follows that
because you cannot sustain a contract in the whole, you can-
not sustain it in part, provided your declaration be so framed
as to meet the proof of that part of the contract which is
good." In that case, as there was a general indebitatus count
for goods sold and delivered, the plaintiffs recovered for that
part of them, the sale of which was not within the statute
of frauds, though the sale of another part was within that
statute. And such is now the prevailing law. (a)
The cases of Vaughan v. Hancock, 3*C. B. 766, Crawford
V. Morrell, 8 Johns. 253, and Noyes's Ex'x v. Humphreys, 11
Grattan, 636, may be sustained on the ground that the dec-
laration stated an entire contract only.
The established doctrine is believed now to be, that an
agreement, which is in part within the statute of frauds, is
valid as to such part as is not within the statute, provided
always that the valid part can be separated from the invalid,
and can be separately enforced without injustice to the prom-
isor. Otherwise, if injustice would be done, by allowing part
only to be recoverable. Thus, where a party in Boston orally
contracted for goods in Philadelphia beyond the value allowed
by the statute of frauds to be thus contracted for, and also con-
tracted to pay for the transportation thereof to Boston, which
contract was not within the statute, it was held that an action
could not be supported for the recovery of the transportation.
Irvine v. Stone, 6 Cush. 508. So in Lea v. Barber, 2 Anstr.
425 note, the defendant made an oral agreement to take an
assignment of leasehold premises, to wit, a brick-ground, and
to buy the brick, consisting chiefly of half-made bricks, at a
valuation to be made by third persons ; it was held that
though the contract for the bricks was not within the statute,
(a) Mayfield v. Wadsley, 3 Barn. & Cres. 361 and 5 Dowl. & Eyl. 224.
Ex parte Littlejohn, 3 Mont. Deac. & De Gex, 182. Irvine v. Stone, 6 Cush.
508. Rand v. Mather, 1 1 Cush. 1, overruling Loomis v. Newhall, 15 Pick. 159.
Browne on St. of Fi-auds, c. ix.
254 LAW OP CONTRACTS.
yet the defendant could not be called on to pay for half-made
bricks without the brick-ground. And see also Mechilen v.
Wallace, 7 Ad. & El. 49. Cooke v. Tombs, 2 Anstr. 420.
Hodgson V. Johnson, El. Bl. & El. 685. In such cases the
parts of the contracts are held not to be severable.
The general doctrine, as to agreements that contravene leg-
islative enactments, is, shortly, as follows :
Whenever the consideration of an agreement, or the act
undertaken to be done, is in violation of a statute, the agree-
ment is void, and no action can be maintained, by either party,
for the breach of it.
It was held, in th* time of Elizabeth, that when a statute
merely inflicted a penalty for doing an act, or for making a
contract of a specified kind, without prohibiting the act or
contract, the payment of the penalty was the only legal con-
sequence of a violation of the statute ; that the contract was
valid and might be enforced. Thus, under the statute of 27
Hen. VI., which imposed a penalty for selling property at a
fair on Sunday, it was held that the contract of sale was not
void, though the seller was liable to punishment, (a) And in
Gremare v. Valon, (b) Lord Ellenborough ruled that an un-
licensed surgeon might recover pay for surgical services,
though the statute of 3 Hen. VIII. enacts that no person
shall practise as a surgeon, without being licensed, under a
penalty. In Bartlett v. Vinor, (c) Lord Holt denied this
doctrine, and said that " a penalty implies a prohibition,
though there are no prohibitory words in the statute," And
in Drury v. Defontaine, (d) Mansfield, C. J., declared that the
law is changed since the decision in Comyns v. Boyer, and " if
any act is forbidden under a penalty, a contract to do it is now
held void. That case is not now law."
(a) Comyns v. Boyer, Cro. Eliz. 485.
(6) 2 Campb. 144. This was carried to the court in bank, but turned there
upon a point of evidence.
(c) Carth. 252 and Skinner, 322.
(d) 1 Taunt. 136. See also De Begnis v. Armistead, 10 Bing. 110 and 3
Moore & Scott, 516.
UNLAWFUL. 255
Accordingly it has been decided, under the statute of 39
Geo. III. (which directs that printers shall affix their names to
any book which they print, and that if they omit so to do they
shall forfeit <£20 for each copy,) that a printer, who omits to
affix his name to a book, cannot recover for labor and mate-
rials used in printing it. Bayley, J., said it made no differ-
ence whether the thing was prohibited or enjoined absolutely,
or only under a penalty, (a) The same principle was rec-
ognized by Lord Eldon, in Dyster's case, (b) So in Nichols
V. Ruggles, ((') it was decided that a contract to reprint any
literary work, in violation of a copyright secured to a third
person, is void ; and that a printer who executes such a con-
tract, knowing the rights of such third person, cannot recover
pay for his labor. Yet the act of congress on the subject
merely infficts a penalty on the offender, and contains no pro-
hibitory clause. So of the sale of lands in Pennsylvania, un-
der the Connecticut title, (d) By the statute of 22 Car. II. it
is enacted that if any person shall sell any sort of grain,
usually sold by bushel, by any other bushel or measure than
that which is agreeable to the standard marked in the excheq-
uer, he shall forfeit 40s. Under this statute, a contract for the
sale of corn by the hobbett, which is not a part of the stand-
ard measure, was held to be void ; and the court refused to
sustain an action against the purchaser, on his refusal to per-
form his contract, (e)
By the English statute of 29 Car. II. c. 7, " no tradesman,
artificer, workman or laborer, or other person whatsoever, shall
do or exercise any worldly labor, business, or work of their or-
dinary calling upon the Lord's day, or any part thereof, works
of necessity and charity only excepted," under a penalty.
The decisions on this statute and the dicta of judges are
not perfectly consistent. The principle seems to be this ; to
(a) Bensley v. Bignold, 5 B. & Aid. 335.
(6) 1 Rose, 349.
(c) 3 Day, 145.
(d) Mitchell V. Smith, 4 Yeates, 84. 4 Dall. 269. 1 Binn. 110.
(e) Tyson v. Thomas, McClel. & Y. 119. See 4 C. B. 376, and also
Forster v. Taylor, 5 B. & Ad. 887. Little v. Poole, 9 Barn. & Cres. 192.
256 LAW OF CONTRACTS.
wit, if any person makes a contract, which is within his or-
dinary calling' on the Lord's day, he cannot enforce that
contract ; and that " worldly labor " is not confined to one's
ordinary calling, but applies to any business he may carry
on. (a) But where one purchases an article on that day, and
retains it, and afterwards promises to pay for it, he is liable to
an action for the price ; but not on the original contract, (b)
In Pennsylvania, a note given on the Lord's day is held to
be void, (c) In Connecticut, a plea to an action on' a prom-
issory note, that it was executed and delivered on the Lord's
day, was held to be a good bar. (d) By the Massachusetts
statutes, the doing of " any manner of labor, business or work,
except only works of necessity or charity, or any travelling,
except from necessity or charity," are expressly forbidden
under a penalty. Formerly it was provided that the Lord's
day should be " understood to include the time between the
midnight preceding and the sunsetting of the said day." • Rev.
Sts. c. 50, § 4. But now it " shall be the time from midnight
to midnight." Gen. Sts. c. 84, § 12. Under the former law,
it was necessary that it should appear or be proved, in order
to avoid a contract, &c., that it was made within the prescribed
hours, or was not from necessity nor charity. Geer v. Put-
nam, 10 Mass. 312. Clap v. Smith, 16 Pick. 247. And see
also 10 Met. 364. 12 ib. 26. 13 ib. 287. This is no longer
necessary in that State. And it is now there held, that if a
party offers in evidence his day-book in an action for goods
sold by him, and the charge is dated on a Sunday, he cannot
I recover, unless he shows, (as he may be allowed to do,) that
the sale there charged was not in fact made on that day.
Bustin V. Rogers, 11 Cush. 346. That a note bears date on
Sunday, is not cause for arresting judgment on a verdict
found for the holder. Hill v. Dunham, 7 Gray, 543.
(a) Fennell v. Ridler, 5 Barn. & Cres. 406 and 8 Dowl. & Ry. 204. Smith
V. Sparrow, 4 Bing. 84. See 4 Best & Smith, 927.
(b) WilHams v. Paul, 6 Bing. 653. See 5 Mees. & Welsh. 702. 1 Horn &
Hurlst. 12.
(c) Kepner v. Keefer, 6 Watts, 231. See also 2 Miles, 402.
(d) AVight V. Geer, 1 Root, 474.
UNLAWFUL. 257
An action cannot be maintained for a decek practised in
the exchange of horses or for breach of warranty on the sale
of a horse, nor for pay for a horse sold on Sunday. Robeson v.
French, 12 Met. 24. Hulet v. Stratton, 5 Cush. 539. Ladd
V. Rogers, 11 Allen, 209. Lyon v. Strong, 6 Verm. 219. But
see 7 Jones (N. C.) 356.
In Gregg v. Wyman {a) it was decided that he who know-
ingly let a horse on Sunday, to be driven to a specified place,
but not for any necessary or charitable purpose, could not
maintain an action against the hirer for killing the horse by
immoderate driving beyond the place specified. See also, to
the same effect, Way v. Foster, 1 Allen, 408, though Mr. Jus-
tice Chapman there said thatr Gregg v. Wyman " carried the
doctrine to its extreme limit," and had been denied, and the.
contrary decided by the court of New Hampshire, in Wood-
man V. Hubbard, (b) See also 23 Howard, 209, 218.
A person travelling on Sunday, unnecessarily and not from
charity, cannot maintain an action against a town for an in-
jury then sustained by him from its defective highway, (c)
But in Maine, where Sunday included only the time from
midnight to sunsetting, it was held to be no defence to an
action against a town for damage to a horse by a defect in its
highway, after sunset of that day, that the plaintiff let the
horse on that day, and that, at the time of the injury, the
horse was used under that letting, {d)
An action on a bond executed on Sunday, neither from ne-
cessity nor charity, cannot be maintained, (e)
The execution of a will on Sunday is not " labor, business,
or work " prohibited by statute. (/) And if a letter is written
and delivered on Sunday, requesting and promising to pay for
a certain service, and there is no proof of an agreement, made
on that day, to perform the service, the party who received
(a) 4 Cush. 322. See 11 Conn. 455.
Qf) 5 Foster, 67. And see 39 Maine, 199.
(c) Bosworth v. Swansey, 10 Met. 363. Jones v. Andover, 10 Allen, 18.
(fi) Bryant v. Biddeford, 39 Maine, 193.
(e) Pattee v. Greely, 13 Met. 284.
(/■) Bennett v. Brooks, 9 Allen, 118. See 7 R. I. 22.
17
f
258 LAW OF CONTRACTS.
the letter may«naintain an action upon the promise therein
contained, if he afterwards perform the service on a week
day. (a)
In 13 Met. 287, Chief Justice Shaw, in a note, referred to
several cases in other States, in which it had been decided
that no action would lie on a contract made on Sunday, not
from necessity or charity ; namely, 18 Alab. 390, 19 ib. 566. 2
Doug. (Mich.) 73. 7 Blackf. 479. 13 Shepley, (26 Maine,) 464.
And here may be added 14 N. Hamp. 133, 19 ib. 233. 25 Ind.
503. 18 Verm. 379. 14 B. Monroe, 419. 22 Penn. State
Rep. 109. 24 N. Y. Rep. 353. 12 Mich. 378.
In 30 Missouri, 387, a note, given on Sunday for an ante-
cedent debt, was held to be valid. A debt is discharged by
payment thereof made on Sunday, and retained by the cred-
itor, 7 Gray, 164. A note actually made on Sunday, but
dated on Monday, for the purpose of giving it credit, is valid
in the hands of an indorsee, without notice, (b) So of a note
dated and made on Sunday, in the hands of a bond fide holder
who did not take notice of the date, (c)
In good sense, there can be no difference between an ex-
press prohibition of an act by statute (whether under a penalty
or not) and the infliction of a penalty for the doing of the
same act, without an express prohibition. In many statutes,
there are both a prohibition and a penalty; in others, a penalty
without a prohibition, or a prohibition without a penalty.
And it may be now considered as settled by authority, as well
as required by policy and legal conformity, that all contracts
which contravene the provisions of a statute, however that
statute may express the will of the legislature, are void for
illegality.
It is not easy to reconcile the case of Johnson v. Hudson {d)
with this doctrine and with the other modern cases, unless it be
upon a ground incidentally mentioned by the reporter. The
plaintiff, in that case, had, without being licensed, sold a
quantity of tobacco, which was part of a larger quantity
(a) Tuckerman v. Hinkley, 9 Allen, 452. And see 15 N. Hamp. 577.
{h) Vinton v. Peck, 14 Mich. 287.
(c) 42 N. Hamp. 369. (d) 11 East, 180.
UNLAWFUL. 259
consigned to him to be disposed of. The statute of 29 Geo.
III. enacts that every person, who shall deal in tobacco, shall,
before he shall deal therein, take out a license, under a penalty
of <£50. In a suit against the purchaser, for the price of the
tobacco, a defence was interposed that the plaintiff could not
legally sell it. The plaintiff obtained a verdict before Lord
EUenborough, and a rule was reluctantly granted to show
cause why the verdict should not be set aside ; the court say-
ing there was no clause in the statute making the sale illegal,
and that it was, at most, a breach of a regulation protected
by a specific penalty. " They also doubted whether the plain-
tiff could be said to be a dealer in tobacco, within the mean-
ing of the act." The rule was finally discharged. And on
the ground that the plaintiff was not a dealer, within the act,
the case does not conflict with the other adjudications, [a)
Where a statute expressly prohibits an act, the decisions
are uniform, that a contract, founded on a violation of the en-
actment cannot be enforced. Thus, as the statute of 10 Geo.
11. c. 28, prohibits theatrical entertainments, unless they are
licensed by the king or lord chancellor, it was decided that
no action lay for a breach of an agreement to dance at Hay-
market Theatre ; there having been no license granted for that
theatre, [b) So where a bank made a loan of bills of foreign
banks, contrary to a statute prohibiting such loan, and took a
note payable in the same, the promisor was held not to be
liable on his note, (c) So of a note given for shingles not of
the dimensions, nor surveyed, as required by a statute which
forbade the sale, [d) So of a note given as a premium on a
policy of insurance of a ship to a port interdicted by an act of
congress, (e)
(a) See 5 B. & Ad. 899. 14 Mees. & Welsh. 463. In Lloyd & Welsh. 96,
note, and 11 Cush. 323, it is denied that the case of Johnson v. Hudson is law.
(h) Gallini v. Laborie, 5 T. R. 242. See 7 Gray, 162.
(c) Springfield Bank v. Merrick, 14 Mass. 322.
(rf) Wheeler u. Russell, 17 Mass. 258. Law f. Hodson, 2 Campb. 147
and 11 East, 300. Little v. Poole, 9 Barn. & Cres. 192.
(e) Russell v. DeGrand, 15 Mass. 35. See also 1 Bos. & Pul. 272. 6 T.
R. 723. 4 M. «Sj S. 346. 1 Comyn on Con. (1st ed.) 39-46.
260 LAW OF CONTRACTS.
Most of the Qases on this subject are collected, and ably
canvassed by the counsel who argued the case of Wheeler v.
E-ussel. (a)
It makes no difference whether the contract be oral, written,
or sealed. If the consideration, or the act to be done, be ille-
gal, the contract is void, whatever form it may have assumed.
As " courts will not lend their aid to enforce a contract en-
tered into with a view of carrying into effect anything which
is prohibited by law," they will not allow a party, who sells
goods, knowing that the buyer is to use them in contravention
of a statute, to recover the price. Thus where an Englishman
in Guernsey sold goods, and assisted in packing them in a
particular manner for the purpose of their being smuggled into
England, it was held that the seller could not recover pay for
them, (b) And the same doctrine was applied, where the
seller was a foreigner, who sued on a bill of exchange given
for goods which he had assisted in smuggling into England.
He could not resort to the laws of England which he had as-
sisted to evade, (c) Where an English merchant chartered a
vessel of a merchant in New York, while the non-intercourse
laws of the United States were in force, for the purpose of
conveying a cargo from New York to Fayal, to be transported
thence to England, it was held, that he could not maintain an
action in this country for the hire of the vessel, (d)
But where the contract and delivery of goods were complete
abroad, and the vendor, a foreigner, did no act to assist the
smuggling of them, he was held entitled to recover pay for
them in England, though he knew that they were to be smug-
gled, (e) This case can be reconciled with the subsequent
decisions only on the ground that a foreigner is not bound to
guard the revenue laws of England, though he cannot actively
assist in violating them. See Story on Conflict of Laws, §§
251, 257. See also post. 269, 270.
(a) 1 7 Mass. 258.
(6) Biggs V. Lawrence, 3 T. R 454.
(c) Clugas V. Penaluna, 4 T. R. 466. Waymell v. Reed, 5 T. R. 699.
(d) Graves v. Delaplaine, 14 Johns. 146.
(e) Holman v. Johnson, Cowp. 341.
UNLAWFUL. 261
Though Mansfield, C. J., in Hodgson v. Temple (a) said,
" the merely selling goods, knowing that the buyer will make
an illegal use of them, is not sufficient to deprive the vendor,
&c. ; he should share in the illegal transaction ; " yet that point
was not necessarily involved in the decision ; and in Light-
foot V. Tenant, (b) it was decided that a person selling goods
in order that they might be exported to a place where by
statute they could not be exported legally, could not recover,
even on a bond given for the price of them. So of drugs sold
and delivered to a brewer, the vendor knowing that they were
to be used in a brewery, contrary to the statute of 42 Geo.
III., though it did not appear that they were so used, (c) So
of money lent for the purpose of settling losses on illegal
stock-jobbing transactions, and thus applied by the bor-
rower, (d) " K it be unlawful," says Abbott, C. J., " for one
man to pay, how can it be lawful for another to furnish him
with the means of payment?" So of money lent to ransom
a ship, contrary to the statute of 45 Geo. HI. {e) In Ex parte
Bulmer, (/) Lord Erskine held that if the money be not ap-
plied to the illegal purpose, the lender may maintain an action
on the loan, and he decreed accordingly. But the court of
king's bench decided differently in Ex parte Bell, (g) and the
remarks of Eyre, C. J., in 1 Bos. & Pul. 556, and of Lord
Ellenborough, in Langton v. Hughes, (A) show that Lord Ers-
kine's doctrine is not recognized as the law of England.
The principle of the decisions last cited is not peculiar to
contracts prohibited by statutes, aUhough those decisions were
made in cases which turned on statutory prohibitions, (i)
(a) 1 Marsh. 5 and 5 Taunt. 181. But see Lloyd & AVelsb. 97 and 11
Cush. 323, contra.
(b) 1 Bos. & Pul. 5.51.
(c) Langton v. Hughes, 1 M. & S. 593. See also 6 Ohio, 442.
(d) Cannan v. Bryoe, 3 B. & Aid. 179.
(e) Webb v. Brooke, 3 Taunt. 6.
(/) 13 Ves. 313.
(g) 1 M. & S. 751.
{h) 1 M. & S. 596, 597.
(i) See 1 Bos. & Pul. 456. 3 Taunt. 12.
262 LAW OF CONTRACTS.
There remains only one more topic in the doctrine of un-
lawful contracts, now to be mentioned ; namely, how far the
foregoing principles affect subsequent or collateral contracts,
the direct and immediate consideration of which is not illegal.
This is a subject somewhat intricate, and the adjudications
on it are not easily reducible to any clear elementary proposi-
tion. The later cases are manifestly more strict than the
earlier ones, as it cannot have failed to be seen, is likewise
true of the decisions on the whole doctrine of unlawful agree-
ments.
It may be taken, however, as established doctrine, that if
a promise is entirely disconnected with the illegal act, and is
founded on a new consideration, it is not affected by that
act, though the promisee knew, and even though he were the
contriver and conductor, of such act. As if a smuggler sell
goods to one who know^s they were smuggled, but who had
no agency in running them, he may recover pay for the
goods, (a) So, where Armstrong, during the war of 1812,
imported goods on his Own account from the enemy's country,
under the false pretext of a capture Jure belli, and goods were
sent by the same ship to Toler, and on a seizure of the goods,
Toler, at Armstrong's request, became surety for the payment
of the duties, &c., on Armstrong's goods, and also became re-
sponsible for the expenses of defending a prosecution for the
illegal importation of the goods, and was compelled to pay
them ; it was held that Toler might maintain an action on
Armstrong's promise to refund the money, (b) Marshall, C.
J.J said: " The contract made with the government for the pay-
ment of duties is a substantive independent contract, entirely
distinct from the unlawful importation; the consideration is
not affected with the vice of the importation. If the amount
of duties be paid by A. for B., it is the payment of a debt
from B. to the government. The criminal importation con-
stitutes no part of this consideration." It was further held,
(«) 11 AVheat. 271, 276.
(b) 1 1 Wheat. 258. See the case on the seizure of the goods, 1 Wheat.
408. 2 W^heat. 278.
UNLAWFUL. 263
however, that if Toler had been concerned in the scheme of
importing the goods, or had any interest in the goods of Arm-
strong, or if they had been consigned to him, with his privity,
that he might protect them for Armstrong, no action could
have been supported.
In Tenant v. ElHott, {a) and in Farmer v. Russell, (b) it was
held that where on an illegal contract between two persons,
one of them pays money to a third person for the other, the
other may recover the money from such third person. The
court said that the demand arose simply from the placing of
the money in the defendant's hands to be delivered to the
plaintiff, and not from the original unlawful contract. Eyre,
C. J., admitted that if it were possible to mix the original
transaction with the contract on which the action was brought,
the plaintiff could not recover.
Several cases on this point have arisen upon the statute of
7 Geo. II. c. 8, " to prevent the infamous practice of stock-
jobbing." The fifth section of that statute enacts, " that no
money or other consideration shall be voluntarily given, paid,
had or received, for the compounding, satisfying or making up
any difference for not transferring any public stock, or for not
performing any contract or agreement stipulated to be per-
formed ; and all and every person, who shall voluntarily com-
pound, make up, pay, satisfy, take or receive such difference
money, &c., shall forfeit the sum of one hundred pounds."
The first case, which arose on a collateral contract connected
with the transactions prohibited by this statute, is Faikney v.
Reynous. (c) Faikney and Richardson were jointly concerned
in stockjobbing transactions, and Faikney voluntarily paid
£3000 to divers persons for compounding differences for not
delivering stock. Richardson and Reynous gave a bond to
Faikney to reimburse him a moiety of the sum thus paid by
him ; and in a suit on this bond, the court held the defendants
liable, on the ground that the bond was not given for payment
(a) 1 Bos. & Pul. 3
(b) 1 Bos. & Pul. 296, Rooke, J., dissenting.
(c) 4 Bur. 2069.
264 LAW OF CONTRACTS.
of the composition money, but for reimbarsing the plaintiff a
debt of honor paid on Richardson's account. The next case
is Petrie v. Hannay, (a) in which an action was sustained on
a bill of exchange accepted for reimbursement of a moiety of
a sum paid to a broker with the privity and consent of the
defendant ; the broker having been employed by the plaintiff
and defendant to pay differences in a stockjobbing transaction
in which they were jointly concerned. Lord Kenyon dis-
sented ; but the other judges felt bound by the decision in
Faikney v. Reynous. In both these cases, the court proceeded
(partly at least) on the distinction between contracts for the
doing of things mala in se, and things merely prohibited by
law. This distinction, it has been seen, is now exploded ;
though Lord Erskine recognized it in Ex parte Bulmer, here-
tofore cited. In Petrie v. Hannay, a distinction was also
taken between an express request to advance money in pay-
ment of an illegal demand, and an implied contract; and the
same distinction was suggested by Heath, J., in 2 H. Bl. 382,
and by Mansfield, C. J., in 4 Taunt.* 167. But Lord Eldon
denied that any such distinction existed, (h)
The real ground of the decisions in Faikney v. Reynous,
and Petrie v. Hannay, was, that the plaintiffs' rights of action
were taken by the court to be founded altogether on the con-
tract of loan, &c., between them and the defendants, and de-
rived no aid from the illegal transactions in which the parties
had been previously engaged, and were not affected by them.
In Booth V. Hodgson, (c) Ashhurst, J., said the ground of de-
cision in Faikney v. Reynous was that the defendant had
voluntarily given another security ; " but it does not follow
that the plaintiff could have recovered on the original contract
for money paid to the use of the defendant." The same re-
mark is applicable to Petrie v. Hannay, where a bill of ex-
change had been accepted by the defendant. But can this
be a valid ground of claim, in any case of this sort? Would
it not bind a defendant, in all cases, to pay an unlawful de-
mand, if he should make an express promise to pay, and thus
legalize all contracts, however vicious ?
(a) 3 T. R. 418. (b) 2 Bos. & Pal. 373. (c) 6 T. R. 410.
UNLAWFUL. 265
The cases of Faikney v. Reynous and Petrie v. Hannay
were never favorably received ; have often been questioned by
the highest authority ; and may now be considered as wholly
overturned. In Mitchell v. Cockburne, (a) Eyre, C. J., said
the latter of these cases was decided on the authority of the
former, " but perhaps it would have been better if it had been
decided otherwise ; for when the principle of a case is doubt-
ful, I think it better to overrule it at once, than build upon it at
all." In Booth v. Hodgson, (b) Lord Kenyon, who dissented
from the other judges in Petrie v. Hannay, said he wished to
avoid making any other observation on those two cases, than
that they were distinguishable from the case then before him.
In Aubert v. Maze, () \ Peters, 48.
(c) American Bank v. Adams, 12 Pick. 303. State Bank v. Cbotwood, 3
Halst. 25. Barrington v. Bal»k of Washington, 14 Serg. & R. 405.
(d.) By Story, J., 1 Peters, 69.
(e) 8 Mass. 276. (/) Bunb. 275.
CONSTRUCTION. 285
expiration of three years ; as well for the amount of G.'s de-
fault after that time, as for the small sura in which G. was in
arrear when the three years expired. If this case be law, it
probably stands on the ground of prerogative, by which the
crown, and its debtors and assignees, are placed on different
grounds from subjects in their contracts with each other, (a)
4. The whole contract is to be regarded in giving it a con-
struction, and one part is to be interpreted by another. Ex an-
tecedentlbus et consequentibus fit optima interpretatio. Turpis
est pars, quae cum suo toto non convenit. (b)
Most of the cases, cited under the preceding rule, are per-
haps equally included in this.
In the Duke of Northumberland v. Errington, (c) Buller, J.,
said, " It is immaterial in what part of a deed any particular
covenant is inserted ; for in construing it, we must take the
whole deed into consideration, in order to discover the meaning
of the parties." In that case, it was held that the general
words in the beginning of the lessee's covenant, "jointly and
severally," &c., extended to all the subsequent covenants,
though those words were not repeated in every covenant
throuofhout the deed : Because it would not have answered
the lessor's purpose that the lessee should be bound separately
in the subsequent covenants. Lord Alvanley says, " How-
ever general the words of a covenant may be, if standing
alone, yet if from other covenants in the same deed, it is
plainly and irresistibly to be inferred that the party could not
have intended to use the words in the general sense which
they import, the court will limit the operation of the general
words. If such an inference does arise from concomitant
covenants, they wiU control the general words of an indepen-
dent covenant in the same deed." (d) A very early case, (e)
(a) See The King v. Smith, Wightwick, 34, that the king takes priority
of a purchaser, in case of debts of his officers and receivers. The crowfe has
a lien on the officer's lands, &c., in case of a contract by specialty.
(b ) Plowd. 161. Winch, 93. 1 Domat, (2d ed.) 37, § 10. Shep. Touch. 87.
(c) 5 T. R. 526. See 19 Texas, 1. 32 ISIiss. 078.
(c/) 3 Bos. & Pul. 574, 575. See Folsom v. McDonough, 6 Cush. 208.
(e) Broughton v. Conway, Dyer, 240, Moore, 58 and Dahson, 58, pi. 8.
See also Dalison, 110, pi. 2.
286 LAW OF CONTRACTS.
illustrates Lord Alvanley's statement. A lessor covenanted
that he had made no former grant or any thing whereby the
grant or assignment might be in any measure impaired,
hindered, or frustrated, but that the assignee, by virtue of that
grant and assignment, might quietly have, hold, &c., without
any impediment or disturbance by him, or by any other per-
son. Dower was assigned to the wife of a former owner of
the leased premises, and a suit was brought on a bond given
by the lessor to perform the covenants in his assignment ; and
it was held that the generality of the latter covenant was re-
strained by the words of the former ; that the lessor had cov-
enanted for quiet enjoyment only against other persons having
right derived from him.
The leading judgment, on the application of this rule is
that given by Lord Eldon, in the case of Browning v.
Wright, {a) Parker, J., [h) termed it " a triumph of common
sense." Wright bargained, sold, &c., to Browning, his heirs,
&c., a parcel of land, and warranted it against himself, and
covenanted that notwithstanding any act by him done to the
contrary, he was seized lawfully and absolutely in fee simple,
and that he had a good right, full power, &c., to convey. The
breach of covenant, alleged in the declaration, was, that
Wright had not good right, full power, &c., to convey to the
plaintiff, for that one Child and his wife were lawfully and right-
fully seized of said land, and had a lawful and rightful title
thereto not derived from the plaintiff (Browning), and that he
had been obliged to become tenant to Child and wife ; and thus
lost his fee simple in the estate conveyed. It was held that
the covenant, namely, that Wright had good right, lawful title,
&c., was either a part of the preceding special covenant, or, if
not, that it was qualified by the other special covenants against
the acts of himself and his heirs only. "We do not do jus-
tice 'to the parties," said Buller, J., in that case, "unless we
look to the whole deed, and infer from that their real inten-
tion. The defendant has expressly told us, in one part of the
(a) 2 Bos. & Pul. 13.
(6) 8 Mass. 217. See also Stannard v. Forbes, 6 Ad. & El. 572 and Willm.
Woll. & Dav. 321.
CONSTRUCTION. 287
deed, that he means to covenant against his own acts ; and
are we to say that he has, in the same breath, covenanted
against the acts of all the world ? " (a) On the same principle
of construction, it was held, where Lord Rich, on conveying
land, covenanted that it was worth £1000 per annum, and so
should continue, notwithstanding any act done, or to be done,
by him,»that the latter words " any act," &c., extended to
the time when the covenant was made, as well as to future
time, (b)
In Jackson v. Stevens, (c) where the owner of three fourths
of a tract of land granted a moiety thereof by metes and
bounds, with all the estate, right, title, &c., which he had " in
the above described premises," it was held that a moiety only
passed by the deed.
In regard to agreements respecting a demise of lands, &c.,
subsequent words are often held to control prior ones; or
rather to show what was intended by prior words. There are
several cases, in which the question was raised whether an in-
strument was intended for a present demise, or a stipulation
for a lease in future, {d)
5. Construction is to be such that the whole instrument, or
contract, and every part of it, may take effect, if it be possible
(a) See also, on this point, 1 Leigh's Nisi Prius, 613, 614. Foord v. Wil-
son, 8 Taunt. 543 and 2 Moore, 592. Milner v. Horton, McClel. 644. Sickle-
more V. Thistleton, 6 M. & S. 9. Sugden on Vendors, ch. xiii. Gainsford v.
Griffith, 1 Saund. 58, and notes. Howell v. Richards, 11 East, 633. Easta-
brook V. Smith, 6 Gray, 572. Nind v. Marshall, 1 Brod. & Bing. 319. Cole
r, Hawes, 2 Johns. Cas. 203. Whallon v. Kaufman, 19 Johns. 97. Knicker-
backer v. Killmore, 9 Johns. 106. Barton v. Fitzgerald, 15 East, 530. Bab-
cock V. Wilson, 17 Maine, 372. Smith v. Compton, 3 B. & Ad. 200.
(h) Rich V. Rich, Cro. Eliz. 43. See also Gervis v. Peade, Cro. Eliz. 615.
Woodyard v. Dannock, ib. 762. But see Crayford v. Crayford, Cro. Car. 106.
Hughes V. Bennet, ib. 495. Harflet v. Butcher, Cro. Jac. 644. It may not be
easy to reconcile all these cases, with respect to the application of the rule of
construction above mentioned ; but the principle itself is recognized in each
one of them, as well as in others cited in Browning v. ,Wright, 2 Bos. & Pul.
13.
(c) 16 Johns. 110. Doe v. Anderson, 1 Stark. R. \^b.
((/) See Roe v. Ashburner, 5 T. R. 163, and previous decisions there cited.
Bac. Ab. Leases, &c. K. 1 Piatt on Leases, 579 ^ seq. 2 Wend. 433.
288 LAW OF CONTRACTS.
consistently with the rules of law and the intention of the
parties, (a)
The last previous rule is perfectly consistent with this,
though it may seem, at the first thought, to contradict it.
Under that rule, every part of the agreement does take effect ;
and the effect intended by the parties. One part is construed,
not destroyed nor impaired, by the other. Words, used in an
apparently general sense, are held to have been intended in a
special or restrained sense, from inspecting the context, and
looking to the effect. Noscitur a sociis. So that the whole
and every part, as the parts are understood upon a view of the
whole, have an effectual operation. This fifth is, therefore, an
additional, and not a mere modifying rule ; as examples will
show.
" If I have in D. blackacre, whiteacre, and greenacre, and I
grant unto you all 7nij lands in Z).,that is to say, blackacre and
whiteacre, yet greenacre shall pass too." (b) A case is men-
tioned in Savile, 71, where C. C. leased land to J. S. for twenty-
one years, and covenanted that the lessee should enjoy the
land for the term against " the said B. C." It was held, that
the word " said " should be rejected, because B. C. had not
before been mentioned ; but that the covenant was against the
interruption of B. C, if there were any such person, (c) So
where one Brooks, who owned three parcels of land (each
particularly described in the deed of one Wylie conveying
them to him) made a deed of conveyance, beginning his de-
scription of the land thus : " Three parcels or lots situated in
Portland, and bounded as follows, to wit, the first lot begin-
ning," &c., and setting forth the boundaries of that lot, and
then closing thus : " Being the same which was conveyed to
me by J. Wylie, by deed dated," &c. ; all the three parcels
were held to have passed by the deed ; (d) otherwise the words
(a) Shep. Touch. 87. 16 Johns. 178. Randel v. Chesapeake and Dela-
ware Canal Company, 1 Hai'rlngton, 154.
(b) By Lord Hobart, Hob. 172.
(c) Ought not this to have been regarded as a mere clerical error, a mis-
naming of the lessor ?
{d) Child V. Fitket, 4 Greenl. 471.
CONSTKUCTION 289
" three parcels " would have had no effect. To restrain the
meaning of " three " to the one particularly described, would
have been to contradict or destroy the word, and not to ex-
pound it. If the deed had professed to convey but one lot,
the reference to Wylie's deed might and ought to have been
restrained, according to the fourth rule, to the description of
the lot professed to be conveyed. Or if no reference had been
made to Wylie's deed, the first lot only would have passed,
because there would have been no means of ascertaining
where or what the other two lots were ; and then that part
of the deed, which mentioned three lots, would have been
void for uncertainty as to all but the one described, according
to another rule of construction, which will be mentioned here-
after. So where the owner of a farm, which he held by two
deeds, one conveying to him an undivided third part, and the
other the residue thereof, made a mortgage of a tract of land
described as being the same mentioned in his first deed, to
which he referred for a description, and as being his whole
farm ; it was decided that he had mortgaged his whole farm,
and not one third only ; that the reference to the first deed was
for description of the land, and not for the quantity of estate
or interest mortgaged, (a)
In Saward v. Anstey, [h) the defendant covenanted with the
plaintiff to pay an annuity on an estate which he had pur-
chased of the plaintiff, and to indemnify him. The annuity
was charged on the land only, and not on the occupant, and
belonged to the plaintiff's sisters. In a suit on the covenant,
for not paying the annuity, the declaration did not aver that
the plaintiff had been damnified. It was contended that,
taken all together, the covenant was only for indemnity, and
that therefore no cause of action was shown. But it was de-
cided otherwise. For if the clause of indemnity were to limit
the covenant for payment to cases where the plaintiff was
himself damnified, it would wholly destroy its effect. The
plaintiff could not be damnified by non-payment of the
(a) Willard v. Moulton, 4 Greenl. 14. And see Co. Lit. 146 a. Jackson
V. Stevens, 16 Johns. 110.
(l>) 2 Bing. 519 and 10 Moore, 55.
19
290 LAW OF CONTRACTS.
annuity. The covenant for payment must therefore have been
intended for the benefit of others (the plaintiff's sisters) for
whom he doubtless meant to provide the personal respon-
sibility of the defendant. The covenant of indemnity to him-
self was clearly useless. By the construction given to the
contracts, in these three instances, every part of them took
effect.
The old books say that if there be two clauses or parts of
a deed repugnant the one to the other, the first part shall be
received, and the latter rejected, unless there be some special
reason to the contrary ; but that in the case of a will contain-
ing two repugnant clauses or parts, the first shall be rejected,
and the last received. " The first deed and the last will shall
operate," is an ancient maxim, (a) In modern times this
maxim has very little operation. A " reason to the contrary "
is almost always found. The rules of construction now ap-
plied, in cases of repugnancy, give effect to the whole and
every part of a will, deed or other contract, when that is con-
sistent with the rules of law and the intention of the party.
And when this is impossible, the part which is repugnant to
the general intention, or to an obvious particular intention, is
wholly rejected. Parts, which were once regarded as repug-
nant, are now deemed consistent.
As to wills. In Owen, 84, Anderson, J., says, conformably
to the old notion, " if I devise my land to J. S. and after-
wards, by the same will, I devise it to J. D., now J. S. shall
have nothing, because it was my last will that J. D. should
have it." This, however, is merely ill applied technicality.
The whole will, and each part of it, is as much the last
will, as the last clause of it. And the whole shall stand,
if it be possible consistently with the testator's intentions.
Contradiction and repugnancy are not to be presumed, if in
any legal way a consistent meaning can be found. In the
case supposed by Anderson, J., the devisees would each take
a moiety of the land. So where (b) legacies are given to
(a) Plowd. 541. Co. Lit. 112, b. Shep. Touch. 88.
(b) See Wallop v. Darby, Yelv. 209. Plowd. 541, in margine. Swinb.
Part I. § 5. Co. Lit. 112 note 144. 13 Mass. 535. 2 Cush. 114.
CONSTRUCTION. 291
several persons, in different clauses of a will, if there is a de-
ficiency of assets, all must abate proportionally, unless the
testator uses language which shows a contrary intent ; as, if
he directs a particular legacy " to be first paid," or unless,
from his obligation to provide for a particular legatee, a con-
trary intent is to be inferred.
As to grants and other contracts. In grants, &c., if words
of restriction are added, which are repugnant to the grant,
the restrictive words are rejected. As if one grant all his
lands, in the whole town of A., namely, in the first parish ; all
the lands will pass, and the scilicet is void. Otherwise, if the
grant be of lands in the town of A., namely, in the first par-
ish, (a) So if there be a demise of lands and woods, (de-
scribed,) except the woods, the exception is void. Or a lease
for years to O. and his assigns, provided he shall not assign ;
the proviso is void. But if the scilicet or proviso be merely
explanatory, and not repugnant to the grant, &c., the latter
shall be limited by the explanatory clause. As in a feoffment
of two acres, habendum the one in fee, and the other in tail,
the habendum only explains the manner of taking, but does
not restrain the gift. In these last, and similar examples, the
substance of the premises is not altered, (b)
Whatever is expressly granted, or covenanted, or promised,
cannot be restrained or diminished by subsequent provisos,
restrictions, &c. ; but general or doubtful clauses precedent
may be distributed or explained by subsequent words and
clauses not repugnant or contradictory to the express grant,
covenant, or promise, (c) Nor can subsequent words or
clauses, repugnant to the express grant, demise, covenant, &c.,
enlarge such grant, &c. Thus, where in a lease of land for
forty years, the lessor covenanted that the lessee and his as-
signs should enjoy the land for the term of " eighty years
aforesaid," it was decided that this covenant for enjoyment
(a) Hob. 173.
(6) See Hob. 172, 173. Moore, 880. Bac. Ab. Grants, I. 1. Jackson v.
Ireland, 3 Wend. 99.
(c) See Cutler v. Tufts, 3 Pick. 272.
292 LAW OF CONTRACTS.
did not enlarge the term ; and the words " eighty years
aforesaid," were rejected as inconsistent with the demise, (a)
So where a rent of j£20 was granted, issuing out of
certain lands, habendum after the decease of Ann Greaves
and Thomas Greaves, or either of them ; the first payment
to be made at a certain feast day that should first hap-
pen after the death of A. or T. Greaves ; with a clause that
if the rent should be unpaid at any feast day named, the
grantee, at any time during the joint lives of said A. and
T. Greaves, might distrain, &c., as no rent was granted dur-
ing the joint lives of these persons, the words " during the
joint lives," &c., were rejected as repugnant, {b) So where
A. acknowledged the receipt of three hogsheads of tobacco in
part of his claim on B., " he the said A." to be allowed per
cent, the highest six months' credit price, it was held that
the words " said A." should be rejected as repugnant to the
clear intent of the parties, (c) So in all cases, doubtless, of
the erroneous substitution of one party for the other, in a
written contract, where the error is manifest on inspection of
the instrument. This rejection of repugnant matter can,
however, be made only in cases where there is a full and
intelligible contract left to operate after the repugnant matter
(n) Savile, 71, pi. 147. See Weak v. Escott, 9 Price, 595.
(fi) Crowley v. Swindles, Vaugh. 173. This case was decided on a demur-
rer to a cognizance in replevin, in which the grant was pleaded according to
its meaning and effect, without mentioning the joint lives, &c. The plaintiff
had oyer, and set forth the grant in hcec verba, and demurred. The cog-
nizance was held good. The construction would have been the same if the
grantee had claimed the rent while A. and T. Greaves were both alive.
(c) Ferguson v. Harwood, 7 Cranch, 414. This case also was decided on
a question of variance ; the pleadings alleging the contract as above stated,
and the contract itself being different. But Story, J., said that if the con-
tract had been as set forth, the same result must have been produced. The
cases of Vernon v. Alsop, T. Ray. 68, 1 Lev. 77 and 1 Sid. 105, and Mills v.
Wright, 1 Freem. 247, come within this rule of construction ; where the con-
dition of a bond for payment of money was that the bond should be void if
the money was not paid. It was wholly repugnant to the bond itself; but by
rejection the bond was left in full force, as an entire and perfect contract.
See Finch's Law, 52. Stockton v. Turner, 7 J. J. Marsh. 192. Gully v.
Gully, 1 Hawks, 20. 1 Doug. 384, by Duller, J. 2 Atk. 32.
CONSTRUCTION. 293
is excluded. Otherwise, the whole contract, or such parts
of it as are defective, will be pronounced void for uncer-
tainty.
In those contracts, in which the repugnancy or ambiguity
is apparent on the face of the contract itself, if the repug-
nancy, &c., be such as renders the intention of the parties un-
intelligible, the contract is null and void. Parol evidence is
inadmissible to explain a written instrument which contains
a patent ambiguity. If the rules of construction fail to elicit
the meaning, the parties are without remedy. But there are
ambiguities and repugnancies which are latent ; and " a latent
ambiguity," says Lord Bacon, " may be holpen by averment."
A latent ambiguity is one which arises extrinsically in the ap-
plication of an instrument of clear intrinsic meaning. As if
one promise to pay John Smith a certain sum of money.
This is clear on the face of the promise ; but there may be
many men of that name. This is an extrinsic fact, and parol
evidence is admissible to show to which man of this name
the promise was made. So if one devise or grant his land in
D., the words are unambiguous ; but parol evidence may and
must be received to show the situation, extent, &c., of the land.
" Parcel or not parcel of the thing demised is always matter
of evidence." (a)
In conveyances of land, it is often necessary to resort to ex-
trinsic evidence of the grantor's intention. The ambiguity
often being latent, evidence dehors the grant, &c., is allowed to
affect its construction. The description of land can be veri-
fied or falsified, in part or in whole, by inspecting the land,
and by comparing monuments, courses, distances, &c. There-
fore, if the description of an estate conveyed be sufficient to
ascertain what was intended to pass, though, upon examina-
tion, or upon inquiry into extraneous matter of description,
the estate will not agree with some of the particulars of the
description, yet it should pass by the conveyance, so that the
intention may be effected. No peculiar principle of construc-
tion is adopted in these cases. Nor is this application of the
(a) See 3 Stark. Ev. (4th Amer. ed.) 1000, 1026. 1 T. R. 704.
294 LAW OF CONTRACTS.
common rules of construction peculiar to agreements respect-
ing lands. In all agreements, whatever be the subject of them,
when there is a latent ambiguity, the same application of the
principle is made.
As conveyances of real estate are as frequent as almost any
other species of contract, and are the frequent subject of dis-
cussion in the courts, some of the prominent rules and estab-
lished canons of their construction may properly be mentioned
in this connection.
When the description of the estate intended to be conveyed
includes several particulars, all of which are necessary to as-
certain it, no estate will pass except such as agrees with every
particular of the description. As if one grant all his land in
his own occupation in the town of D., no land passes, except
what is in his own occupation, and is also in that town.
Every part of such grant takes effect by this construction, (a)
But if the description is sufficient to ascertain the estate, al-
though the estate will not agree with all the particulars of the
description, yet it will pass. As if one convey his house in D.,
which formerly belonged to A. B., when it never was A. B.'s, but
was C. B.'s, the house in D. shall pass, if the grantor had only
one house. The description of the house in D. is sufficient to
ascertain the building. The intention of the parties is thus
effected, and the rejected part of the deed is that which can-
not operate consistently with that intention. If, however, the
grantor had two or more houses in D., neither of which ever
belonged to A. B., the grant would be inoperative, and void
for uncertainty. But if other words of description were
added, sufficient to identify the house intended, then it would
pass, on the principle before mentioned, though the former
owner was misnamed, (h) Thus a conveyance " of all that
my farm in W., on which I now dwell, containing one hun-
dred acres, with my dwelling house and barn thereon, being
lot No. 17, &c., bounded," &c., was held to pass the farm on
(a) Plowd. 191.
(b) Lambe v. Reaston, 5 Taunt. 207. Vose v. Handy, 2 Greenl. 322. Roe
V. Vernon, 5 East, 51. Doe v. Greathed, 8 ib. 91. Bac. Ab. Grants, H. 1.
Com. Dig. Grant, E. 13. See 9 Allen, 113.
CONSTRUCTION. 295
which the grantor dwelt, though it was not lot No. 17, and
though the boundaries were mostly misdescribed. («) See
Allen V. Lyons, 2 Wash. C. C. 475. Winkley v. Kaime, 32
N. Hamp. 268. 1 Greenl. Ev. § 301.
Where the boundaries of land described in a deed are fixed
and known monuments, although neither courses, distances,
nor computed contents agree therewith, the monuments must
govern. Courses and distances may be erroneously taken and
measured ; and computation of contents may he inaccurate.
Fixed monuments remain, and there can be no uncertainty
about them. K, however, the monuments cannot be ascer-
tained, the length of lines mentioned in the deed must govern.
But there may be cases, in which it is more reasonable to sup-
pose that there is a mistake as to the monuments referred to,
than in the admeasurement of the distances, when they are
found to disagree ; and in such cases (which must be few) the
admeasurement shall determine the boundaries, rather than
the monuments. (/>)
If a deed of conveyance refer to a monument not in ex-
istence at the time, and the parties afterwards erect it, with
the intention of conforming to the deed, the monument will
govern the extent, though it do not coincide with the line de-
scribed in the deed, (c)
(cr) Worthington V. Hylyer, 4 Mass. 196. Jackson v. Loomis, 18 Johns.
81. 19 Johns. 449. In Flowd. 191, will be found the substance of the law
as to the construction of grants. See also Massie v. Watts, 6 Cranch, 148.
Jackson v. Wilkinson, 1 7 Johns. 146, and cases there cited. Jackson v. Clark,
7 Johns. 217. The state of titles in Kentucky gave rise to a course of deci-
sions, and to the adoption of rules of construction, which evince great skill
and ability in the courts, and which have nearly overcome and reduced to
order the confusion formerly so embarrassing to claimants of land in that por-
tion of the country. The most important of these decisions may be found
(either made or cited by the supreme court of the United States) in Cranch
and Wheaton. But as the doctrines are chiefly of local application, though not
contrary to the spirit of the common law rules of construction, it seems hardly
advisable to detail them in this place. See 1 Pirtle's Digest, 113-131.
(6) See Savile, 114. 2 N. Ilamp. 303. 2 Mass. 380. 6 lb. 131. 3 Pick.
401. 5 ib. 135. Cooke, 460. 6 Wheat. 582.
(c) Makepeace v. Bancroft, 12 Mass. 469. Lerned v. IMorrill, 2 N. Hamp.
197. Waterman v. Johnson, 13 Pick. 267. Kennebec Purchase v. Tiffany,
1 Greenl. 219.
296 LAW OP CONTRACTS.
Lands, granted as bounded on a river, extend to the thread
of the river, ad filum aqu(F^ unless from prior grants on the
other side of the river, or from the terms of the gi-ant in ques-
tion, such construction is negatived, [a) And if there be an
island in the river, the line will run in the same manner as if
there were no island. If, therefore, the island be wholly on
one side of the thread of the stream, it will belong to the
owner of the bank on that side ; if in the middle of the stream,
it will belong in severalty, one half to each of the riparian
proprietors. So of any other proportions into which the
island may be divided by the thread of the river. (6) And
the law is the same in case of the accession of an island in a
stream. It will belong to the owners of the banks, and they
will be entitled to hold to the thread of the river and to divide
it pro modo et quantitate agronim. [c] Islands, however, are
the subject of separate grants, and this doctrine of boundaries
in grants of land bordering on streams holds only where the
islands are not otherwise appropriated.
This construction of boundaries is applied only to land
bordering on streams not navigable. By the common law, a
stream or inlet of the sea, is regarded as navigable only so far
as the tide ebbs and flows. Thus far, if it can be used by
water-craft to any useful purpose, it is technically navigable.
All arms of the sea, coves, creeks and streams, where the tide
ebbs and flows, are the property of the sovereign, as far as the
ordinary high water mark. But a subject may acquire prop-
erty therein, by grant, or prescription which supposes a
grant, {d) See Phear on Rights of Water, 11.
In running the side lines of a proprietor on a stream not
navigable, they are to be extended, from their respective
(a) Lunt V. Holland, 14 Mass. 151. King v. King, 7 ib. 4D6. The King v.
Wharton, 12 Mod. 510. 3 Kent Com. (11th ed.) 542 ^ seq. 9 Cush. 495.
(6) Ingraham v. Wilkinson, 4 Pick. 268, and cases there cited.
(c) Vinnius, 141, (Amsterdam ed. of 1692.) Heinec. Pand. Pars vi. § 168.
Heinec. Inst. Lib. II. tit. 1, § 357. Deerfield v. Arms, 17 Pick. 41.
(<^/) Davis, 155-158. 4 Bur. 2162. 2 Doug. 441. 4 T. R. 439. 2 Bos.
& Pul. 472. 5 Taunt. 705. 1 Marsh. 313. 1 Pick. 180. 2 Johns. 362. 6
ib. 133. 21 Pick. 344. 34 Jliss. 30. 34 N. Hamp. 349.
CONSTEUCTION. 297
termini on the shore, at right angles with the course of the
stream, unless otherwise established by the terms of his grant.
Knight V. Wilder, 2 Cush. 199. A grant of land bounded on
such stream conveys to the grantee a title to the centre of the
stream, though the moniiments are described as standing on
the bank or margin of the stream, if the boundary afterward
mentioned be " thence on the stream." And this is so, as
well in acts of a legislature fixing the boundaues of towns,
&c., as in grants by individuals. Coovert v. O' Conner, 8
Watts, 470. Luce v. Carley, 24 Wend. 451. Noble v. Cun-
ningham, 1 McMullan Eq. 289. The State v. Canterbury, 8
Foster, 195. Inhabitants of Ipswich, Petitioners, 13 Pick. 431.
Cold Spring Iron Works v. Inhabitants of Tolland, 9 Cush.
492. See Morrison v. Langworthy, 4 Greene (Iowa) 177.
A conveyance of land described as running " to the Genesee
River, thence along the shore of said river," was held to pass
no part of the bed of the river. Child v. Starr, 4 Hill, 369.
The shore, technically taken, is the space between low water
and ordinary high water mark ; and the same construction is,
of course, given to a grant of land bounded by the shore, (a)
By the civil law, " est autem littus maris, quatenus hybernus
fluctus maximus excurrit." {b) By this law, also, the property in
streams actually navigable belonged to the sovereign, or public,
though the tide did not ebb and flow therein. A conveyance
of land bounded on one side " by the sea or beach," includes
the land between high and low water mark. Doane v. Will-
cutt, 5 Gray, 328. Jerwood on Rights to Sea Shores, 98.
This last difference in the two legal systems probably may
be ascribed to the different size, &c., of the fresh- water rivers on
the continent, and on the island of Great Britain. The Code
Kapoleon adopts the doctrine of the civil law. Flumina au-
tem omnia et portus, publica sunt ; ideoque jus jnscandi omnibus
commune est in portu Jluminibusque. (c) Vinnius, in his com-
mentary on this passage (p. 126) restricts the word "flumina"
(fl) Storer v. Freeman, 6 Mass. 435. Blundell v. Catterall, 5 B. & Aid.
294, 304.
(6) Justinian, Inst. Lib. II. tit. 1, § 3. 5 B. & Aid. 292.
(c) Justinian, Inst. Lib. II. tit. 1, § 2.
298 LAW OF CONTRACTS.
to such streams as are perennial, and the "jus piscandi " to
the subjects of the country " cujus fines flunien alluit^ et quate-
nus alluitr
In Pennsylvania, North Carolina, and South Carolina, the
civil law doctrine is adopted in regard to the actually navi-
gable fresh-water rivers in those States, {a) In Connecticut,
New York, Massachusetts, Ohio, and Wisconsin, the doctrine
of the common law is adhered to. (6) And see 24 Howard 41.
The owner of land adjoining on a stream not technically
navigable, has, therefore, by the common law, an exclusive
right of fishery ad filum aquae, and may maintain a suit for a
violation of this right, (c) But the public has an easement or
servitude in streams that will bear water-craft to any useful
purpose ; namely, a free right of passage.
The same law, as to boundaries and right of fishery, doubt-
less applies to cases of land adjoining small ponds, {d) But
in Massachusetts, by a colonial ordinance of 1641, " for great
ponds lying in common, it shall be free for any man to fish
and fowl there, and may pass and repass, on foot, through any
man's propriety for that end, so they trespass not upon any
man's corn or meadow." It was also provided in the same
ordinance, that " every inhabitant, who is an householder, shaU
have free fishing and fowUng in any great ponds, bays, coves,
and rivers, so far as the sea ebbs and flows within the pre-
cincts of the town where they dwell, unless the freemen of the
town, or the general court have otherwise appropriated them."
To this privilege is however added a proviso, that no town
shall appropriate to any particular person any great pond
(a) Carson v. Blazer, 2 Binn. 475. Shrunk v. Schuylkill Navigation Com-
pany, 14 Serg. & R. 71. Wilson v. Forbes, 2 Dev. 30. Injrram v. Thread-
gill, 3 ib. 59. Cates v. Wadlington, 1 M'Cord, 580. Walker v. Shepardson,
4 Wis. 486.
{h) Adams v. Pease, 2 Conn. 481. The People v. Piatt, 17 Johns. 195.
Hooper V. Cummings, 20 ib. 90. Freary v. Cooke, 14 Mass. 488. Common-
wealth V. Chajjin, 5 Pick. 199. Gavit v. Chambers, 3 Ohio, 496.
(c) See cases last cited, and Waters v. Lilley, 4 Pick. 145.
(i/) See Lowell v. Robinson, 16 Maine, 357. Waterman v. Johnson, 13
Pick- 261. Phinney v. Watts, 9 Gray, 269. Bradley v. Rice, 13 Maine, 201.
The State v. Gilmanton, 9 N. Hamp. 461.
CONSTRUCTION. 299
containing more than ten acres of land, &c. (a) This ordi-
nance altered the common law in regard to^he right of a sev-
eral fishery in large ponds, and was designed to preserve to
the people at large a favorite privilege and amusement. The
effects of the ordinance are clearly perceptible at this day. As
to fishing, &c., in tide waters, it seems to have been intended
to restrict the right to householders in the town where the
waters were. But this part of the ordinance is not at all re-
garded in practice, and probably was never so applied as to
restrain the common law right of every citizen in those waters.
Otherwise, it is believed, as to ponds, {b) Great ponds, that
is, of more than ten acres, have in many instances become
private property. But whether the owners can exclude all
other persons from fishing therein, is not known to have been
decided. See West Roxbury v. Stoddard, 7 Allen, 158.
Although the borderers on streams not navigable own to
the centre of the water, and have an exclusive right of fishery
to that extent, subject only to the easement of passage on
the water by the public, yet the legislature of Massachusetts
have, from the earliest period, made provision for the passage
of fish from the ocean into the ponds and streams above, and
have subjected the owners of contiguous land, of mills, &c., to
divers onerous duties ; such as keeping open fish-gates on
their dams, &c. And this legislative power has often been
judicially recognized, (c) It is a part of the law of that State
(probably derived from the ordinance abovementioned,) that
towns may appropriate the fishery in tide waters within their
limits, if not appropriated by the legislature, (d) See 9 Gray,
503-528.
The right in the waters and shores of the sea, and in navi-
gable tide waters in North America originally belonged to
the English crown. That right, to a certain extent, passed
to the council, established at Plymouth in England, for the
(o) Ancient Charters, &c. 148, 149.
(&) See Sullivan on Land Titles, 284 Sf seq, 2 Dane Ab. Ch. LXVIII.
10 Cusb. 188. 7 Allen, 167.
(c) See 9 Pick. 87. Not so in New York. 17 Johns. 195.
(d) Coolidge v. Williams, 4 Mass. 140.
300 LAW OP CONTRACTS.
settlement of New England ; and so far as it respects Massa-
chusetts and M^ne, the same right was transferred to the
company which undertook that settlement ; and their transfer
was confirmed by the charter of Charles 11. In that charter
(dated May 1628), " ports, rivers, water, fishing," &c., were
fully confirmed unto the company ; and upon their establish-
ing a government here, they took the dominion of the territory,
and all its franchises and privileges, and parcelled them out in
small divisions. Thus the people of the colony, in their politi-
cal capacity, succeeded to all the territorial right that formerly
belonged to the English crown and government. As the king
might grant an exclusive right to a subject, in a fishery, or in
the soil under navigable waters, so the colony succeeding to
his property and power, had the same authority to make like
grants to individuals, or to corporate bodies. This power, like
all other powers of a kindred nature, vested in the legislature
of the colony.
An ordinance of 1647 made a material change in the law
on this subject of public property in tide waters. And that
change has continued till the present time. For though
the colony charter was annulled in 1684, by a decree in
chancery, yet a new charter was granted in 1691, granting
to the inhabitants of the province of Massachusetts Bay, and
their successors, the temtory therein described, and all " ha-
vens, ports, rivers, waters," &c. Indeed, the laws of the colony
were not affected, in fact, by the annulling of the charter,
whatever might have been the strict legal theory, (a) By
statutes, passed in 1692, all the local laws of Massachusetts
and of New Plymouth were to remain and continue in full
force, in the respective places, until, &c. {b)
As to shores, flats, &c., by the ordinance of 1647, " it is de-
clared that in all creeks, coves, and other places about and
upon salt water, where the sea ebbs and flows, the proprietor
of the land adjoining shall have propriety to the low water
mark, where the sea doth not ebb above a hundred rods, and
(a) See 6 Mass. 438. 3 Amer. Jurist, 115, 241. 2 Hutchinson's History,
(3d ed.) 20.
(h) Ancient Cliarters, 213, 229.
CONSTRUCTION. 301
not more wheresoever it ebbs further" with a proviso secur-
ing the passage of boats or other vessels over the water, (a)
A grant of land, therefore, " below high water mark," if not
otherwise restricted, will extend to low water mark, if that be
not more than one hundred rods ; and if it be more, the grant
will extend to that distance, (b) So if the grant bound the
grantee on a cove or creek, or on the salt water, sea, bay, &c.
But the grantee cannot always claim the flats in the direction
of the exterior lines of his upland, but only in the direction
towards low water mark from the two corners of his upland
at high water mark : As in the case of a circular cove, &c. (c)
If a grant bound the grantee upon the bank or margin of a
stream, the stream itself is excluded, (d)
When a river is the boundary between two nations or
States, if the original property is in neither, and there is no
convention respecting it, each holds to the middle of the river.
But when one State is the original proprietor and grants the
territory on one side only, it retains the river in its own do-
main, and the newly erected State, or the old State to which
the cession is made, extends only to the river ; and low water
mark is the boundary. This is the law in case of fresh
streams, as well as in those in which the tide ebbs and
flows, (e) So it was held in Handly's Lessee v. Anthony, (/)
on a claim to an island in the Ohio Ptiver, as part of the ter-
ritory of Kentucky ; the cession by Virginia describing the
territory as " situate, lying and being to the northwest of the
river Ohio." So by the cession of Georgia to Alabama, the
western bank of the river Chatahochee is the dividing line
between those States, {g-')
In the ordinance for the government of the territory north-
west of the riv£r Ohio, passed July 13, 1787, it was declared,
that " the navigable waters leading into the Mississippi and
(a) Ancient Charters, 148. See 7 Cush. 67. 3 Allen, 513.
(b) Adams v. Frothingbam, 3 Mass. 352. Austin v. Carter, 1 Mass. 231.
(c) Eust y. Boston Mill Corporation, 6 Pick. 158. See further, 6 Mass.
332. 10 ib. 146. Gray v. Deluce, 5 Cush. 9. Emerson v. Taylor, 9 Greenl. 42.
(d) Hatch V. Dwight, 17 Mass. 298.
(e) Vattel, Book I. chap. 22. (/) 5 Wheat. 374.
(g) Alabama v. Georgia, 23 Howard, 505.
302 LAW OP CONTRACTS.
St. Lawrence, and the carrying places between the same, shall
be common highways, and forever free, as well to the inhabi-
tants of said territory as to the citizens of the United States,
and those of any other States that may be admitted into the
confederacy, without any tax, impost, or duty therefor." (a)
Generally, the public have only an easement in the land
over which a highway or road passes; as in rivers that are
actually, though not technically, navigable ; and a grant of
land, bounding on a highway or road, generally extends to
the centre of the way. (b) And this is so as well in cases of
deeds bounding land on a private as on a public way. {c)
A deed bounding land on a certain passage way " between
the land hereby conveyed and the house of A," excludes the
passage way ; the conveyed land being " external to the
way." (d) So where in a deed a line begins at a stake on
the side of the road, and thence other lines are given to said
road, and thence " by said road to the place of beginning,"
the road is excluded, (e)
It was said in Parker v. Smith, 17 Mass. 413, and in some
subsequent cases, that a deed bounding land on a way is a
covenant by the grantor that there is such a way, and that
it is not a mere description. But a deed bounding land on
" a thirty feet street " was held not to amount to a covenant
that the street is of that width throughout, but to be matter of
description only. (/) And in Howe v. Alger, 4 Allen, 206,
the previous cases were discussed, and a decision made, that
if land is conveyed as bounding on a street, and the grantor
has no interest in the adjacent land so described, this does
(a) Journals of the old Congress, vol. 12, (Folwell's ed.) p. 62. 3 U. S.
Laws, (Story's ed.) 2077. 5 Ohio, 410.
(6) 1 Conn. 103. 15 Johns. 454. 2 ib. 357. Reed's Petition, 13 N.
Hamp. 381. 3 Gray, 319. 8 Cush. 595. 3 Kent Com. Lecture, 41. Doe
V. Pearsey, 9 Dowl. & Ryl. 908 and 7 Barn. & Cres. 304.
(c) Fisher v. Smith, 9 Gray, 441. Holmes v. Bellingham, 7 C B. N. S.
329.
((/) Codman v. Evans, 1 Allen, 446. And see Brainard v. Boston & N. Y.
Central Railroad, 12 Gray, 407. Smith v. Slocomb, 9 Gray, 36 and 11 ib. 280.
(e) Phillips V. Bowers, 7 Gray, 21. Sibley v. Holden, 10 Pick. 249.
(/) Clap V. McNeil, 4 Mass. 589.
CONSTRUCTION. 803
not amount to an implied covenant that there is such a street
legally laid out. In that case, Dewey, J., said that the whole
extent of the preceding cases is " that a grantor of land, de-
scribing the same by a boundary on a street, or way, if he be
the owner of such adjacent land, is estopped from setting up
any claim, or doing any acts inconsistent with the grantee's
use of the street or way ; and that such estoppel would also
apply to his heirs, or those claiming under him."
A grant of land described as abutting upon a street, which
was merely laid down upon a map, but not actually opened,
is not an implied grant of way in such street, nor a covenant
to open a way there, (a)
6. If the u'ords of a contract do not fully express, or even if
they are contrary to, the evident intention of the parlies, the
intention is to be preferred to the expression, {b)
Thus the condition of a bond of X200 being " to render a
fair, just, and perfect account in writing of all sums received "
was held to be broken by the obligor's neglect to pay over
such sums. Lord Mansfield said, it was clearly the intention
of the parties, that the money should be paid. Buller, J., said,
it never could be meant that so large a penalty should be
taken merely to enforce the making out of a paper of items
and figures, (c) So a proviso, that an annuity to a married
woman should cease, if she should " associate, continue to
keep company with, or criminally correspond with J. F.," was
extended to all intercourse, so that J. F.'s calling and leaving
his card at the house, and sometimes being admitted, though
no improper behavior on his part, or levity on hers, was shown,
was decided to be sufficient cause to stop the annuity, (d) A
covenant that the lessee shall not exercise the trade of a
butcher upon the demised premises, is broken by his there
selling raw meat by retail, though no beasts were slaughtered
(a) Case of Mercer Street, 4 Cowen, 542. And see Loring i'. Otis, 7 Gray,
663. Walker v. City of Worcester, 6 ib. 548. Underwood u. Stuyvesant,
19 Johns. 181.
(h) Domat, (2d ed.) 37, § 11. 41 Penn. State R. 142.
(c) Bache v. Proctor, 1 Doug. 382.
\d) Dormer v. Knight, 1 Taunt. 417.
304 LAW OF CONTRACTS.
there ; the intention being to prevent the lowering of the ten-
ement in the scale of houses, by the exercise, whether wholly
or partially, of a trade which the lessor supposed would de-
preciate its value in future, (a) So a covenant by a lessee not
to use or exercise, or suffer to be used or exercised upon the
premises, any trade or business whatsoever without license of
the lessor, was held to be broken by assigning the lease to a
schoolmaster who kept a school in the house, (b)
These, and numerous other cases, come under the first part
of the rule, namely, when the words " do not fully express "
the intention of the contracting parties. They might, perhaps,
be as properly classed under the third rule, that " the subject-
matter of an agreement is to be considered in construing the
terms of it," &c.
The following examples fall under the latter part of the
rule ; that is, where the words are contrary to the evident in-
tent of the parties ; as Vernon v. Alsop, (c) and the other cases
already mentioned, where the condition of a bond was wholly
contrary to the bond itself and nullified it ; and the cases of
evident mistake, cited under the fifth rule. So of a note or
bill of exchange made payable to the order of a fictitious per-
son, which is held to be payable to bearer, (d)
Posthumus pro nato habetwr. Therefore where one gave a
bond to pay <£900 to his daughter, if he should have no son
living at the time of his decease, chancery relieved against the
bond, upon its being shown that there was a posthumous son
who would receive less of the obligor's property than the
daughter, if the bond should be paid, (e)
(a) Doe V. Spry, 1 B. & Aid. 617.
(b) Doe V. Kcermjz, 1 M. & S. 95. See also Doe v. Worsley, 1 Campb. 20.
Doc V. Laming, 4 Campb. 77. Tombs v. Painter, 13 East, 1. Quackenbosg
V. Lansing, 6 Johns. 49. For construction of a covenant not to assign a lease
without iTcense, see 2 Selw. N. P. (1st ed.) 408-412; 3 M. & S. 353, 15
Johns. 278, 3 Pick. 221, 2 Stark. Ev. (4th Am. ed.) 433, 7 Johns. 227.
(c) 1 Lev. 77, 1 Sid. 105 and T. Ray. 68.
(d) Kyd on Bills, (3d ed.) 208, 268. Gould on Pleading, c. iii. § 180.
(e) Gibson v. Gibson, 2 Freeman, 223. See also Millar v. Turner, 1 Ves.
Sen. 85. It has long been the statute law of Massachusetts, that posthumous
children shall have the same share in their father's estate, when he makes a
co'nstruction. 305
It is, perhaps, rather by legal operation, than by construc-
tion, that a contract, " if it will not take effect that way it is
will in which they are not provided for, as if he had died intestate ; to be
taken proportionally from the devisees and legatees who claim under the will.
(Ancient Charters, 351, St. of 1783, c. 24; Revised Statutes, c. 62.) This
statute provision assumes, that if the father die intestate, a posthumous child
will inherit ; and such is the common law. Introduction to Reeve on De-
scents, pages lii. liii. Lands descend to the children already born, and vest;
but are devested by the birth of a posthumous cliild. This devesting, however,
takes place, in England, only when a son is born, the other children being
daughters. 2 Bl. Com. 211. In New England, there is no distinction of sex
in the law of descents.
In Reeve v. Long, 4 Mod. 282, (and in several other books) the courts of
C. B. and B. R. decided that a remainder to A's first son, after a life estate
limited to A, could not be taken by A's posthumous son. But the House of
Lords reversed the decision, though all the judges retained their first opinion.
Thereupon the statute of 10 & 11 W. HI. c. 16, was passed, to enable posthu-
mous children to take remainders Umited to the children of the first or other
person to whom the freehold is previously granted or devised. See Bac. Ab.
Remainder and Reversion, D. Bui. N. P. 105. Stedfast v. NicoU, 3 Johns.
Cas. 18.
A child in ventre sa mere is now considered as born for all purposes which
are for his benefit. Hale v. Hale, Pre. Ch. 50. White v. Barber, 5 Bur. 2703.
Doe V. Lancashire, 5 T. R. 49. Doe v. Clarke, 2 H. B. 399. Hall v. Hancock,
15 Pick. 255. Trower v. Butts, 1 Sim. & Stu. 181. Heinec. Pand. Pars L
§§ 124, 125, Pars V. § 22. 1 Domat, (2d ed.) 277, § 14. The statutes of Mas-
sachusetts assume that eff"ectual provision may be made by will for such child ;
and the cases above cited show that such is the law.
Tectinically, a posthumous child is one who is born after the death of the
father. But a child born after the death of the mother has the same rights,
and is " of the same condition with other children." 1 Domat, (2d ed.) 20,
§ 7, 8, & 624, § 6. There is no statute provision in Massachusetts respecting
childi-en born after the mother's death. If therefore a mother, having prop-
erty, should die before delivery, the rights of the child subsequently delivered
(exsectus vel edilus) not technically bom (natus), would be wholly governed
by the common law. If the father were previously dead, doubtless the child
would be strictly and technically posthumous, and clearly within the existing
statutes. And if the father were alive, the child would inherit from the
mother ; and by the civil law might succeed to the property, pro rata, against
a will omitting to provide for him. 2 Domat, (2d ed.) 109, § 8. By that
law, a father might disinherit a posthumous child. If he omitted to mention
such child in his will, the will was inofiicious, so far as such child was con-
cerned. If he were provided for, the will, &c., was valid, as at common law.
2 Domat, supra. Just. Inst. Lib. II. tit. 13. Justinian reformed the Roman
20
306 LAW OP CONTEACTS.
intended, it may take effect another way." The general in-
tention of the parties is, in this manner, effected, though the
particular intention fails. This usually happens where some
legal impediment withstands the particular intent of the par-
ties ; (a) as in case, abovementioned, of a note or bill payable
to the order of a fictitious person.
A freehold cannot be made to commence infuturo. There-
fore a grant of land, by bargain and sale, from a father to a
son, " to h^ve and to hold after the death of the grantor,"
cannot operate as a bargain and sale, though so intended.
But it shall operate as a covenant by the father to stand
seized to his own use during life, and to the use of the son
after the father's death. Thus the son has full title to the
land after his father's decease, which was the chief purpose
of the parties, {b) The same effect is given to a release at-
tempting to convey a freehold infuturo. (c) So a deed, meant
for a release, but not legally operative as such, is held to
operate as a grant, (d) A grant in consideration of natural
affection may operate as a covenant to stand seized to the
use of the grantee, (e) The words " limit and appoint " may
operate as a grant of a reversion, though intended as an ap-
pointment of uses, but not being sufficient for that purpose. (/)
A release from a trustee to his cestui que trust may be con-
sidered as a bargain and sale, (g-) A release to one not in pos-
session, does not, as such, pass any estate ; but if made for a
valuable consideration, and registered, it will operate as a
bargain and sale, or other lawful conveyance, as, by the
law by prohibiting a parent from disinheriting such child. Novel 115. Did
this Novel extend to mothers? Heinec. Recit. Lib. II. § 524.
(a) Shcp. Touch. 82. 6 East, 105. Willes, 686. Gould on Pleading,
Book iii. §§ 174-180. 2 Saund. (5th ed.) 97 c.
(b) Doe V. Simpson, 2 Wils. 22. Wallis v. Wallis, 4 Mass. 135. Doe v.
Salkeld, AVilles, 673. Doe v. Whittingham, 4 Taunt. 20.
(c) Roe V. Tranmarr, Willes, 682.
(d) Goodtitle v. Bailey, Cowp. 597. Hastings v. Blue Hill Turnpike, 9
Pick. 80.
(e) Vanhorn's Lessee v. Harrison, 1 Dallas, 137.
(/) Shove V. Pincke, 5 T. R. 124.
(g) Jackson v. Beach, 1 Johns. Cas. 399.
CONSTRUCTION. 807
Massachusetts statutes, the recording of a deed duly executed
is equivalent to actual livery of seizin, (a)
In these and similar cases, the deeds, which are permitted
to have an operation different from what was designed, must
be consistent, in their terms and incidents, with the operation
allowed. If the terms, &c., are repugnant to such legal opera-
tion, the deed cannot have its intended operation. It will be
void.
An agreement between a lessor and the assignee of his
lessee, that the lessor shall have the premises as mentioned
in the lease, &:c., shall operate as a surrender, (b)
A covenant never to sue shall operate as a release or de-
feasance, to prevent circuity of action, (c) Aliter, of a covenant
not to sue within a specified time, (d) A covenant not to sue
within a limited time, and also that if a suit be brought within
the time, the cause of action shall cease, or that the defendant
shall be discharged from the debt or duty, or the plaintiff shall
forfeit the debt, will be a bar to the suit. The defendant is
not turned round to a suit on the covenant. But if the cove-
nant is successfully pleaded to a suit on the original cause of
action, the whole purpose of the covenant is answered, and
the covenantee cannot maintain an action against the cove-
nantor for disturbing him by suit, (e) Such covenant, however,
(a) Pray v. Pierce, 7 Mass. 381, Russell v. Coffin, 8 Pick. 143. See also 6
Mass. 32. 3 Pick. 521. 4 Mason, 45. 7 Mass. 494. Stearns on Real Actions,
12, 13. 2 Saund. 97, note.
(&) Smith y. Mapleback, 1 T. R. 441. Lord Hale and his associates, 1 Vent.
141, approved of Lord Hobart's commendation of judges that are curious and
almost subtile (as(uli) to invent reasons and means to make acts effectual
according to the just intent of the parties. Hob. 277. And C. J. Willes
says, " Judges, in these later times, have (and I think very rightly) gone fur-
ther than formerly, and have had more consideration for the substance, to -wit,
the passing of the estate according to the intention of the parties, than to the
shadow, to wit, the manner of passing it." Willes, 684, referring to 3 Lev.
372.
(c) Deux V. JefFeries, Cro. Eliz. 352. 2 Saund. 48, note (1).
{(l) Deux 17. Jefferies, Cro. Eliz 352, 2 Saund. 48, note (1). Clarivil v. Ed-
wards, 1 Show. 331. Perkins v. Oilman, 8 Pick. 229. Garnett u. Macon, 2
Brock. 185. Bac. Ab. Release, A. 2.
(e) White v. Dingley, 4 Mass. 433. See Upham v. Smith, 7 Mass. 265, 8
Johns. 58. Bac. Ab. Pleas and Pleadings, L 7.
308 LAW OF CONTRACTS.
is not a bar to a suit on the original cause of action, when it
is made with one of two or more joint contractors ; for it
would defeat the intention of the parties, (a) A covenant never
to sue one of two or more joint or joint and several obligors
or promisors does not operate as a release ; for a release of
one, in such case, is a release of all, and the intention is not
to discharge the debt, but to exempt one of the parties from
liability. The only remedy of the covenantee, if afterwards
sued, is on his covenant, (b) In 12 Mod. 415, Holt, C. J., is re-
ported to have said that a covenant not to sue for a specified
time is a defeasance. If it be so, it might be pleaded in bar
to a suit brought within the time. But the law is clearly
otherwise, {c) If, however, there be in such covenant a provi-
sion that the covenantee may plead it in bar of a suit com-
menced before the time has elapsed, the law may be different.
A license to enclose common may operate as a release of
common, if so intended ; for, as a license, it is determined by
the death of the party granting it. (d) Licenses, that convey
any interest in land, must be by deed ; and Parker, C. J., says
" they are considered as leases, and must always be pleaded as
such." (e) But in Bacon's Abridgment (/) it is said, " If one
license another to enjoy such a house or land till such a time,
this amounts to a present and certain lease or interest for that
time, and may be pleaded as such, though it may be also
pleaded as a license."
A perpetual license in form would doubtless operate as a
grant of an easement, and might be pleaded as a grant. In-
deed a prescriptive right rests on the presumption of a grant ;
and so does the right acquired by adverse enjoyment for twenty
(a) Hutton v. Eyre, 6 Taunt. 289. Garnett v. Macon, 2 Brock. 185.
(b) March, 95. Fitzgerald v. Trant, 11 Mod. 254. Lacy v. Kynaston, 12
Mod. 415, 551, Dean v. Newhall, 8 T. R. 168. Shed v. Pierce, 17 Mass. 623.
Tuckerman v. Newhall, ib. 581. Harrison v. Close, 2 Johns. 448. Walker v.
McCulloch, 4 Greenleaf, 421. See also Brooks v. Stuart, 1 P. & Dav. 615
and 9 Ad. & El. 854.
(c) See Aloff r. Scrimshaw, 2 Salk. 573, and the cases above cited.
(d) Semb. Miles v. Etteridge, 1 Show. 349.
(e) 11 Mass. 538.
(/) Bac. Ab. Leases, &c., K. Pleas and Pleadings, L 7.
CONSTRUCTION. 309
years. These rights, however, are not often pleaded as acqui-
sitions by grant.
It is a rule of pleading, that things must be pleaded accord-
ing to their legal operation. But where a thing may operate
in two ways, at the election of the party, he may plead it in
one way or the other, according to his election, as in the case
of a license, before mentioned.
7. The time when a contract was made is to be regarded in
expounding it; and contemporaneous exposition is of great
weight in construction.
" Every grant shall be expounded as the intent was at the
time of the grant. As, if I grant an annuity to J. S. until he
be promoted to a competent benefice, and at the time of the
grant he was but a mean person, and afterwards is made an
archdeacon, yet if I offer him a competent benefice accord-
ing to his estate at the time of the grant, the annuity doth
cease." (a) But a written agreement cannot be controlled by
a contemporaneous oral understanding of the parties, which is
inconsistent with it. (b)
Ancient grants are to be expounded as the law was at the
time of making them, (c) Modern methods of conveyancing
are not to be construed to affect ancient notions of equity, (d)
So the state of the country, and of the manners of society, is
to be regarded, in expounding contracts. Thus, in Adams v.
Frothingham, (e) where a vote of the town of Newbury came
in question, " granting W. Noyes a piece of land below high
water mark, to set a shop upon, and not exceeding forty feet
in the front," the question was whether the lot should extend
back to low water mark, or only to a distance sufficient to
accommodate a shop. The vote was passed in 1680. The
court held that the lot extended to low water mark ; though
such words, in a recent grant, in times of precision and accu-
racy, and when flats have become valuable, might receive a
(a) By Wray, C. J., Cm Eliz. 35. See 1 Sneed, 141.
(b) 7 Blackf. 432.
(c) Co. Lit. 8 b. Amb. 288.
(d) See remarks of Spencer, J., 16 Johns. 23.
(e) 3 Mass. 360.
310 LAW OF CONTRACTS.
different construction. It was also supposed, from the state
of the times and the country, that the proprietors of Newbury
desired to settle the township, and to afford advantageous
situations, on the river, to the settlers. The court also relied,
in part, upon the fact that those, who occupied under Noyes's
grant, claimed and used the flats, as they needed them, for
nearly a century, without complaint from the grantors ; and
thus a practical construction, by both parties, had been given
to the grant, sufficient to remove any doubts that might have
arisen from its terms. This practical construction of the par-
ties, immediately after the grant, is what is generally called
contemporaneous exposition, which is said to be optima etfor-
tissima in leg-e. (a)
Where, in a deed given in 1694, the grantor gave the priv-
ilege of cutting timber, for the purpose of building on the
premises, from his woods, it was held that it might be shown
that the grantee and his heirs, with the knowledge of the
grantor and his heirs, had cut wood for the purpose of erect-
ing fences upon the premises ; in order to evince the intention
of the parties to apply the word "building" to the making
of fences, as well as to the erection of houses, &c. {b)
It is an established rule, that where the language of ancient
instruments is obscure, or their construction doubtful, usage
may be resorted to, as it is the best practical exposition of the
parties' meaning. In Attorney General v. Parker, {c) Lord
Hardwicke said : " In the construction of ancient grants and
deeds, there is no better way of construing them than by usage,
and contemporanea expositio is the best way to go by."
In Cooke v. Booth, {d) on a demise for the lives of A. B. and
C. it was covenanted that if A. (the lessee,) his heirs, &c.,
should choose, upon the death of B. and C, or either of them,
(a) See Branch's Maxims, (Hening's ed.) 30. Codiuan v. Winslow, 10
Mass. 149.
Q)) Livingstoa v. Ten Broeck, 16 Johns. 14. See also Jackson v. Wood,
13 Johns. 346.
(c) 3 Atk. 577. See also Withnell v. Gartham, 6 T. R. 888. Weld v.
Hornby, 7 East, 199, by Lord EUenborough.
((/) Cowp. 819.
CONSTRUCTION. 311
to surrender and take a new lease, and add a new life, in lieu
of the life so dying, the lessor, his heirs, &c., would grant a
new lease for the lives of the substituted persons, under the
same rent and covenants as in the original lease. There were
several renewals of the lease, and in each instance there was
a similar covenant for renewal. The court held that the par-
ties had put their own construction on the covenant, and that
it was therefore to be regarded as a covenant for perpetual
renewal. But this case has been impeached upon all occa-
sions, and is overruled by the judgment of the court of ex-
chequer chamber, in Iggulden v. May. (a) The decision in the
exchequer chamber proceeded on the ground that the covenant
in the lease was not intended for a covenant of perpetual
renewal ; that the words were not such as to warrant that
construction ; in short, that there was no room left for doubt,
on the face of the instrument, what was the intention of the
parties. Lord Ellenborough (7 East, 242,) said, " If the con-
tinued grant of successive leases, and not the grant of one
only, were intended, it is natural to expect that words should
have been used distinctly marking a right of repeated renewal,
instead of expressions more immediately applicable to the case
of a single additional lease." And this is the settled and only
proper doctrine, namely, that usage, or contemporaneous ex-
position is not to be called in aid, when the language of a
contract is clear and precise, but only where it is equivocal or
doubtful, [b) This rule of construction applies to ancient char-
ters granted to corporations, as well as to grants to individuals.
Charters are contracts between the crown, or the state, and
other persons, whether corporate or unincorporate, to whom
they are granted, (c)
(a) 2 New Rep. 449 and 7 East, 237, and before Lord Eldon, in chancery,
9 Ves. 325. See also Tritton v. Foote, 2 Cox. 174. Rubery w. Jervoise, 1 T.
B. 229.
(6) By Spencer, J. 16 Johns. 23. Peake on Ev. (2d ed.) 119. 3 Stark.
Ev. (4th Amer. ed.) 1031. Cortelyou v. Van Brundt, 2 Johns. 357.
(c) See Blankley v. VVinstanley, 3 T. R. 279. The Kiug v. Bellringer, 4
ib. 810. The King v. Osbourne, 4 East, 327. Rex v. Varlo, Cowp. 250.
Mayor, &c. of London v. Long, 1 Campb. 22. Evans's Pothier, (1st Am. ed.)
189 ^ seq.
312 LAW OP CONTRACTS.
In construing ancient statutes, the court constantly resort
to contemporaneous exposition, (a) Indeed, most of the rules,
which are adopted for the construction of contracts, are ap-
plicable to the construction of statutes ; and for the same
reason, namely, that they equally tend to give effect to the
intention of the makers, (b)
8. W7ien terms are doubtful or ambiguous, they are to be
taken most strongly against the person engaging. Verba char-
tarum fortius accipiuntur contra proferentem. " A grant shall
be construed most strongly against the grantor," &c. (c) This
rule, however, applied only to deeds poll, because the words
of an indenture were regarded as the words of each party
alike, {d)
The rule of the civil law is the same in terms, but directly
the reverse in its meaning and operation. By the form of
contracting, in that law, the words of a stipulation were those
of the party to whom the engagement was made. The party
promising only assented to the question proposed by the party
stipulating, (e)
There seems to be little of good sense, or of principle, in
the maxim, as it originally stood, either in the common or
civil law. The assent of two or more minds is necessary to
constitute a contract; and there is great force in the argument
of Serjeant Catline, in Plowden, 140, namely, "what difference
is there when the lessor saith, ' I will have twenty shillings
yearly for the land,' and the lessee agrees to it, and when the
lessee says, ' I will give you twenty shillings yearly for the
land,' and the lessor agrees to it? Certainly, there is no dif-
ference at all. For, in contracts, it is not material which of
the parties speaks the words, if the other agrees to them ; for
(a) Sheppard v. Gosnold, Vaugh. 169. Rogers v. Goodwin, 2 Mass. 475.
Packard v. Richardson, 17ib. 144. Stuart v. Laird, 1 Cranch, 299. McKeen
V. Delancy's Lessee, 5 ib. 22.
(h) Bac. Ab. Statute, L Com. Dig. Parliament, R. 10-29. Dwarris on
Statutes, (2d cd.) c. ix. & x.
(c) Shep. Touch. 87, 88. Plowd. 171. Co. Lit. 197 a.
(d) Plowd. 134. 2 Bl. Com. 384.
(e) Ilcinec. Pand. Pars vii. tit. 1. 1 Domat, (2d ed.) 37, §§ 13-15. 1
Evans's Poth. (1st Amer. ed.) 50, note.
CONSTRUCTION. 313
the agreement of the minds of the parties is the only thing the
law respects in contracts." The rule, however, did exist, and
was upheld by the notion, that the terms of the agreement
were to be regarded as the words rather of the promisor, by
the common law, and of the promisee, by the civil law.
In the common law, this rule of construction, at the present
day, has a very limited operation, and amounts, in effect, to
nothing more than this, namely, that in a case of doubtful or
ambiguous terms, tlie party promising shall be held to perform
so much as to make the terms of his engagement operative,
according to the spirit of those terms, ut res magis vaJeat quam
pereat. The rule was always subject to all the preceding
rules that have been mentioned. They were first to be ap-
plied, and this resorted to, only when they all failed ; which
would seldom happen. «' This being a rule of some strictness
and rigor," says Lord Bacon, " doth not as it were its office,
but in the absence of other rules, which are of some equity
and humanity." {a) And it never was applied in cases where
the contract contained anything in its nature odious, or un-
equally burdensome ; as, in case of a penalty, &c. {b) Nor
where it would operate as a wrong upon third persons. Thus,
although where the owner of an estate in fee makes a lease
for life, without expressing for whose life, it shall be intended
for the life of the lessee, as most favorable to him ; yet it is
otherwise, if such lease be given by a tenant in tail ; for if it
were to be construed for the life of the lessee, it might injure
the reversioner, (c)
In case of a grant, &c., by the king or government, the rule
of construction is reversed, and the grant is taken most bene-
ficially for the grantor, {d)
Subject to these modifying remarks, this rule of construing
an agreement most strongly against the promisor, has still
some operation in practice, though a very limited one. In
(a) See 1 Powell on Con. 395. 1 Ev. Poth. (1st Amer. ed.) 52.
\V) 1 Powell on Con. 397 ^- seq.
(c) Co. Lit. 42, 183.
(d) 2 Bl. Com. 351. 2 Wooddeson, 307. Jackson v. Reeves, 3 Caines,
296.
814 LAW OF CONTRACTS.
Adams v. Frothingham, (a) and in Worthington v. Hylyer, (b)
the court would have adopted this rule (as they declared) in
order to give the party his full justice, if other rules had not
been found sufficient for the purpose. It is said in the books
that under this rule falls that class of cases, in which the mas-
culine is held to include both sexes, and the indefinite is con-
strued to be universal, (c) All these cases, however, seem
fairly to come under some of the preceding rules of construc-
tion, as the fourth, respecting the subject matter, or the sixth,
by which the intention is to be preferred to the expression,
when the words do not express the evident intention.
Where a release of all lands, &c., belonging, used, occupied,
and enjoyed, or deemed, taken, or accepted as part of clock
mills, was given to the plaintiff, it was held that leasehold
lands, within the description, passed by the release, though a
release was a conveyance adapted to freehold estates ; an as-
signment being the proper conveyance of a term for years, (d)
The court held that the rule applied, in this case, that the deed
should be construed most strongly against the grantor. Oth-
erwise, the defendant would have been enabled, after a long
interval of time, to invalidate his own conveyance, against the
plaintiffs possession, and for the purpose of obtaining unjust
possession for himself.
On the same principle, exceptions or reservations in a deed
shall be taken most favorably to the grantee, and if not set
down or described with certainty, the grantee shall have the
benefit that may arise from such defect, (e) So where a deed
may enure several ways, the grantee shall have his election
which way to take it. (/) And where an instrument was so
drawn that it could not be ascertained whether it was intended
for a bill of exchange or a promissory note, it was held that
the payee might regard and treat it, as the one or the other, at
his election, (g-)
(a) 3 Mass. 361. (h) 4 Mass. 205.
(c) 1 Powell on Con. 400 ^ seq.
(d) Doc V. Williams, 1 H. Bl. 25.
(e) Jackson v. Hudson, 3 Johns. 375. Jackson v. Gardner, 8 ib. 394.
(/) Heyward's case, 2 Co. 35.
Ig) Edis V. Bury, 6 Barn. & Cres. 433 and 9 Dowl. & Ryl. 492.
CONSTBUCTION. 315
A lease for seven, fourteen, or twenty-one years was given.
The question arose, at whose option it was, at which of these
periods the lease should determine. It was decided that it
was at the option of the lessee, on the principle that the terms
of the lease were to be consti'ued most strongly against the
lessor ; or, in other words, most favorably to the lessee, (a)
In many instances of this nature, it is obvious that the in-
terest of each party is the same. But where the lessor wishes
to determine the lease, and the lessee wishes to hold on, the
legal presumption, and perhaps the actual fact, would be that
it is for the advantage of the lessor to determine it ; and in
such a case, the principle of this eighth rule is clearly appli-
cable. But after all it is perhaps rather a rule of law and
equity, than of construction of contracts, by which the lessee's
option is secured to him.
In matters of election, in alternative contracts, it is the
settled doctrine that the option is in the party who is to per-
form one of two or more acts, (b) Such also is the doctrine
of the civil law ; and Pothier states it as a consequence of his
seventh rule of interpretation, namely, that " in case of doubt,
a clause ought to be interpreted against the person who stipu-
lates anything, and in discharge of the person who contracts
the obligation."
On the same principle, if by the contract an election is given
or reserved, of two several things, he who is the first agent,
and who ought to do the first act, shall have the election, (c)
And this will be the promisor or promisee, according to the
nature of the contract, (d) But if a person, bound in the
alternative to do one of two things, by a certain day, let the
day pass without making an election, by performing one or
(a) Dann v. Spurrier, 3 Bos. & Pul. 399, 442 and 7 Ves. 231. See also
Doe V. Dixon, 9 East, 15. There were obiter dicta, in a former case, (Good-
right V. Richardson, 3 T. R. 462,) that either party might, in such case, deter-
mine the lease.
(h) Layton v. Pearce, 1 Doug. 15. Bac. Ab. Election, B. Com. Dig. Elec-
tion, A. 2 Ev. Poth. (1st Amer. ed.) 46 ^ seq. Smith v. Sanborn, 11
Johns. 59.
(c) Co. Lit. 145, a.
(d) See examples, in Bac. Ab. & Com. Dig. supra.
316 LAW OF CONTEACTS.
the other, he loses his election, and the other party may elect
which he will demand. As, where one was bound to pay six
hundred dollars for a patent right, at the end of twelve months,
or to account for the profits, and he did neither at the end of
that time, the other party was held entitled to demand six
hundred dollars, though the profits were less than that sum. (a)
There are cases, in which the mere omission of the party to
perform one alternative is an election of the other. As, where
goods are sold at six or nine months' credit, the purchaser,
by not paying at the end of six months, elects to take credit
for nine ; and he cannot be sued before nine months have
elapsed, (b) If, however, in this case, the contract had been,
that at the end of three months, the buyer should give his note
at three or six months, and he had done neither, doubtless,
(on the principle of the foregoing cases,) he might have been
sued for breach of his contract, though not for the price of the
goods. He might be sued for the goods, at the expiration of
the three months ; as the election belonged to the seller, and
the time of credit was no longer at the buyer's option, (c)
Where a contract, a will, or a statute, is unintelligible, and
the meaning cannot be elicited by any of the foregoing rules
of construction, it is inoperative and void, {d)
(a) M'Nitt V. Clark, 7 Johns. 465. More v. Morecomb, Cro. Eliz. 864.
Abbot V. Rookwood, Cro. Jac. 594.
(6) Price v. Nixon, 5 Taunt. 338.
(c) Mussen v. Price, 4 East, 147. Brooke v. White, 1 New Rep. 330.
Cothay v. Murray, 1 Campb. 335.
(d) 4 Mass. 205, by Parsons, C. J. Swinburne, Part vii. §§ 6-10. Powell
on Devises, (1st ed.) 411. United States v. Cantril, 4 Cranch, 167. Bac.
Ab. Statute, A.
CHAPTER VI.
OBLIGATION OF CONTRACTS.
The constitution of the United States, article I., § 10, pro-
vides, that no State shall pass any law impairing the obligation
of contracts.
The reason and the meaning of this prohibition are to be
sought, in part at least, in the history of the country previously
to the adoption of this constitution. The finances of the
States, and the ability of individuals, had been greatly im-
paired by the burdens imposed during the war of the revolu-
tion ; and upon the establishment of peace, it was found, that
the sources of profit, and the resources of enterprise were
closed or greatly lessened, by the depression of property and
the pressure of private and public debt.
Severe and urgent embarrassments, however temporary
they may be supposed to be, often induce individuals and
communities to resort to sinister and desperate methods of
relief. Such were the attempts, in this instance. The States
refused to redeem their paper, issued during the war ; and
tender laws were passed, compelling creditors to receive
worthless or very insufficient articles in payment of their dues.
Divers equally exceptionable legislative shifts and devices are
to be found in the history of that period, resorted to for the
purpose of relieving the citizens and the States from the per-
formance of meritorious and solemn engagements. Shays's
rebellion, in Massachusetts, was excited by the poverty of the
people, their inability to pay their debts, and the uniform re-
fusal of the legislature to emit a paper currency, subject to
depreciation, and to be a tender ; and also by the course of
318 LAW OF CONTRACTS.
law in the collection of debts. Lawyers became odious to
debtors, (who were a great majority), by their agency in en-
forcing the law ; and the effects of the odium then raised
against them, and against men of capital, were perceptible
long after prosperity was restored, (a)
But though the mischiefs, which had been felt, after the
close of the war of the revolution, were doubtless the occasion
of the clause in the constitution, forbidding the States to pass
laws impairing the obligation of contracts, yet the clause is,
by no means, to be limited to cases which had previously
occurred. The convention which framed that instrument,
warned by the past, intended not only to prevent a recurrence
of the evils already endured, but also to guard against the
happening of similar evils; "to establish justice," and the
most perfect faith in agreements, and to ensure the sanctity
of private property, so far as these objects can be secured by
legislative enactments.
This clause in the constitution seems not to have met with
any opposition from the people of the United States. In none
of the " Debates on the Constitution," which have been seen,
was this restriction upon the power of the States made a
theme of complaint. Indeed, the authors of the Federal-
ist, who met every objection that they heard or could devise,
devote to this topic only a single page. In No. 44, Mr. Madi-
son says : " Very properly have the convention added this
(«) The legislature of Kentucky, about forty years since, attempted, by a
system of relief laws, stop laws, &c., to remedy the evils which arose from a
depreciation of the bank notes (the principal currency) of that State; and the
people were divided and convulsed on this system of relief. The courts of the
State pronounced these laws unconstitutional. A breach of their State con-
stitution was then added, by abolishing their supreme court and organizing
another. The old court proceeded as before, and the new court proceeded as
they could ; and two sets of judges, counteracting each others' proceedings,
led to such confusion and anarchy, as has not often bepn witnessed in civilized
communities. The remedy was found worse than the disease, and the good
sense of the people finally prevailed ; and after the election of the governor
and legislature, in 1827, the course of justice returned to its old and proper
channels. The decisions of the new court, in 2 Monroe, are not regarded aS
authority.
OBLIGATION. 319
constitutional bulwark in favor of private rights ; and I am
much deceived, if they have not, in so doing, as faithfully con-
sulted the genuine sentiments, as the undoubted interests of
their constituents. The sober people of America are weary of
the fluctuating policy which has directed the public councils.
They have seen with regret, and with indignation, that sud-
den changes and legislative interference, in cases affecting
personal rights, .become jobs in the hands of enterprising and
influential speculators, and snares to the more industrious and
less informed part of the community." (a)
This prohibitory clause in the constitvttion has given rise to
some of the ablest discussions that have been witnessed in
the United States.
The first question that arises in this clause, respects the
meaning of the term " contract." As was stated, ante, 1, the
late chief justice of the United- States, in a case arising on
this constitutional prohibition, defined a contract to be " an
agreement in which a party undertakes to do or not to do a
particular thing." And the decisions, presently to be cited,
have settled the point, that contracts executed, as well as
executory; conveyances of land, as well as commercial en-
gagements ; public grants by a State to corporations and in-
dividuals, as well as private agreements between citizens ,
grants and charters in existence when the constitution was
adopted, as well as those existing previously, even before the
revolution ; and compacts between the different States them-
selves, are equally within this prohibitory clause of the con-
stitution.
This provision of the constitution has never been understood
to embrace other contracts than those which respect property,
or some object of value, and confer rights which may be as-
serted in a court of justice. It has never been understood to
restrict the general right of a legislature to legislate on the
subject of divorces, (b) Though marriage is, in one sense, a
contract, as it is both stipulatory and consensual, and cannot
(a) See also, in this connection, the remarks of Marshall, C. J., 12 Wheat.
354, 355.
(6) By Marshall, C. J., 4 "Wheat. 629. See 10 IST. Hamp. 385.
320 LAW OF CONTRACTS.
be valid without the concurrence of two competent minds, yet
it is sui generis, and, unlike ordinary contracts, is publici juris,
as it establishes most important domestic relations. And
since every well organized society is essentially interested in
the harmony and decorum of all its social relations, marriage,
which is the most elementary and useful of them all, is regu-
lated and controlled by the sovereign power of the State, and
cannot, like mere contracts, be dissolved by the mutual con-
sent of the contracting parties only, but may be abrogated by
the sovereign will, either with or without the consent of both
parties, whenever the public good, or justice to both or either
of the parties, will be thereby subserved. Such a remedial
and conservative power is inherent in every independent
nation, and cannot be surrendered or subjected to political
restraint or foreign control, consistently with the public wel-
fare. And therefore marriage, being much more than a con-
tract, and depending essentially on the sovereign will, is not
embraced by the constitutional interdiction of legislative acts
impairing the obligation of contracts. The obligation is
created by the public law, subject to the public will, and not
to that of the parties. So far as a dissolution of a marriage,
by public authority, may be for the public good, it may be
the exercise of a legislative function ; but so far as it may be
for the benefit of one of the parties, in consequence of a breach
of the contract by the other, it is undoubtedly judicial, (a)
The next question, what is the exact import of the term
" obligation," is perhaps not quite so authoritatively answered
by the adjudications. It is manifest, that the obligation of a
contract is something different from the contract itself; other-
wise, the very phrase would be senseless, or merely tautolog-
ical.
In Sturges v. Crowninshield, (b) Marshall, C. J. says, " the
law binds the party to perform his undertaking ; and this is,
of course, the obligation of his contract." Trimble, J., (c) says,
" the obligation of the contract consists in the power and
(a) By Robertson, C. J., 7 Dana, 183, 184. (b) 4 Wheat. 197.
(c) 12 Wheat. 318. See also 4 Littell, 34, 47.
OBLIGATION. 321
efficacy of the law, which applies to and enforces perform-
ance of the contract, or the payment of an equivalent for non-
performance. The obligation does not inhere in the contract
itself, propria vig-ore, but in the law applicable to the contract."
Indeed, it is agreed on all hands, that the law of the contract
forms its obligation. But what law ? " All admit," says
Chief Justice Marshall, " that the constitution refers to and
preserves the legal, and not the moral obligation of a contract.
Obligations purely moral are to be enforced by the operation
of internal and invisible agents; not by the agency of human
laws. The restraints imposed on the States by the constitu-
tion are intended for those objects which would, if not re-
strained, be the subject of State legislation." (a)
What, then, is the original legal obligation of a contract ;
the moral obligation, that is, the moral law, not being the law
thereof ?
On one side, it was said, that the universal law of all civil-
ized nations, which declares that men shall perform their
engagements, is the law intended in this clause of the consti-
tution. It is this law which creates the obligation of a con-
tract made in a savage wilderness, or on a desert island, where
no municipal law exists. The writers on natural and national
law give this view of the subject, (b)
On the other side, it was insisted, that the framers of the
constitution had not the universal law of civilized nations in
view, any more than the moral law ; but that the obligation
intended is the obligation imposed by the municipal law of
the State where the contract is made. Justinian's Institutes
were relied on : " Obligatio est juris vinculum, quo necessitate
adstringimur alicujus ret solvendce secundum nostrce civitatis
jura." Book iii., tit. 14. Paley, in his Moral Philosophy,
(a) 12 Wheat. 337.
(6) See quotations, 12 Wheat. 222, 223, in the margin. See also Hutche-
son's Moral Philosophy, book ii., c. 9, § 1, where it is said, "that the rights
founded on contracts are of the perfect sort, to be pursued even by force ; and
the sacred obligation of faith in contracts appears from the mischiefs which
must ensue upon violating it." Heineccius, in his Elements of the Law of
Nature and Nations, book i., c. 14, is very explicit to the same effect. Greb-
ner's Philosophia Moralis, sive Ethica, et Jus Nature, pars ii., cap. vii. § 1.
21
322 LAW OF CONTRACTS.
book ii., c. 2, says, " a man is to be said to be obliged, when
he is urged by a violent motive, resulting from the command
of another."
Three of the justices of the supreme court of the United
States held, that the constitutional prohibition against passing
laws impairing the obligation of contracts referred to the uni-
versal law. The other four, that the municipal law of the
State, where the contract is made, was intended.
This question cannot often arise. It was discussed with
great power, in the case of Ogden v. Saunders, (a) and the
whole case deserves attention. The question before the court,
in that case, was, whether an insolvent law of New York,
which discharged both the person of the debtor and his future
acquisitions of property, impaired the obligation of contracts,
as it respected debts contracted subsequently to the passing
of the law. Four judges, against three, held such a law not
to be unconstitutional. And such has been the opinion of
State courts, before which the same question has been
brought, (b)
One ground, on which this question was argued was, that,
as the law existed before the contract was made, the contract
was made with reference to the law, and so its obligation was
not impaired, because the creditor knew that, on certain con-
tingencies, the law would discharge the debtor, and therefore
he took his chance. The answer given to this argument was,
that the creditor also contracted with reference to the consti-
tution, and that if the statute was unconstitutional, it was not
law.
Previously to the decision of Ogden v. Saunders, it had
been unanimously decided by the supreme court of the United
States, in Sturges v. Crowninshield, (c) that a statute of New
York was unconstitutional, which discharged both the body
and the property of a debtor, so far as respected contracts
made before the statute was passed. In that case, the court
(a) 12 Wheat. 213.
(b) 7 Johns. Ch. 297. 16 Johns. 233. 1 Ohio, 236. 5 Mass. 509. 13
ib. 16, 19.
(c) 4 Wheat. 122.
OBLIGATION. 323
held, that until congress exercise the power of passing uniform
bankrupt laws, the several States may pass bankrupt or in-
solvent laws, provided they do not impair the obligation of
contracts ; that laws releasing debtors from liability to im-
prisonment, statutes of limitation, &c., did not impair the
obligation of contracts ; as imprisonment, and the time of
suing, &c., formed no part of the contract, but were the means
of enforcing it. Of course, it was held, that as most of the
insolvent laws of the States only discharged the person of the
debtor, leaving the obligation to fulfil the contract in full force,
and not exempting even his future acquisitions from the reach
of creditors, they were not within the prohibitory clause of
the constitution. " Undoubtedly," said Taney, C. J., in 1
Howard, 315, 316, " a State may regulate, at pleasure, the
modes of proceeding in its courts in relation to past contracts
as well as future. It may, for example, shorten the period of
time within which claims shall be barred by the statute of
limitations. It may direct that the necessary implements
of agriculture, or the tools of mechanics, or articles of neces-
sity in household furniture shall, like wearing apparel, not be
liable to execution on judgments. Regulations of this de-
scription have always been considered, in every civilized com-
munity, as properly belonging to the remedy, to be exercised
or not by every sovereignty according to its own views of
policy and humanity. It must reside in every State, to en-
able it to secure its citizens from unjust and harassing liti-
gation, and to protect them in those pursuits which are neces-
sary to the existence and well-being of every community.
And although a new remedy may be deemed less convenient
than the old one, and may, in some degree, render the recovery
of debts more tardy and difficult, yet it will not follow that
the law is unconstitutional. Whatever belongs merely to the
remedy may be altered according to the will of the State,
provided the alteration does not impair the obligation of the
contract. But if that effect is produced, it is immaterial
whether it is done by acting on the remedy or directly on the
contract itself. In either case, it is prohibited by the consti-
tution." See also DeCordova v. City of Galveston, 4 Texas,
324 LAW OF CONTRACTS.
473, 474. Paschal v. Perez, 7 ib. 365. Auld v. Butcher, 2
Kansas, 155, 156. Clark v. Martin, 49 Penns. State Rep.
299, 302. 23 Maine, 318. 4 Humph. 13. 4 Foster, 344. 13
B. Monroe, 282. 35 Alab. 280. 37 ib. 679. 13 Richardson,
498. 2 Story on Const. (3d ed.) § 1385.
A grant by a State is a contract within the meaning of this
prohibitory clause. Thus where the legislature of Georgia
authorized the sale of a tract of wild land, and a grant was
made by letters patent, in pursuance of the act of the legisla-
ture, to the Georgia Company, and a succeeding legislature
declared the former act to be void ; it was decided that the
former act could not constitutionally be repealed, so as to re-
scind a sale made under it. {a) The same principle is asserted
in Rehoboth v. Hunt, {b) in Pike v. Dyke, (c) and in Mont-
gomery V. Kasson. {d)
In 1770, the officers of an episcopal parish church in Vir-
ginia purchased a tract of land " for the use and benefit of
said church in said parish." By previously existing statutes,
and the common law, the land thus purchased became vested,
either directly or beneficially, in the episcopal church ; and the
property remained unimpaired notwithstanding the American
revolution. For it is a principle of common law, that the
division of an empire creates no forfeiture of previously vested
rights of property. Several subsequent statutes recognized
the rights of the church, and made provision for the manage-
ment of its property. But in 1798, all these statutes were
repealed, as inconsistent with the principles of the constitution
of Virginia, and of religious freedom ; and in 1801, the legis-
lature asserted its right to all the property of the episcopal
church in the respective parishes in the State, and authorized
the overseers of the poor, in every parish where any glebe land
was vacant, or should become so, to sell it and appropriate
(a) Fletcher v. Peck, 6 Cranch, 87. And see Bristoe v. Evans, 2 Over-
ton, 341, 346.
(h) 1 rick. 224.
(c) 2 Greenl. 213, 217. See also 5 Haywood, 106. 1 Nott & McCord,
401. 2 Peters, 657.
(d) 16 Cal. 189.
OBLIGATION. 325
the proceeds to the use of the poor of the parish. The court
decided, that even if the property had been granted to the
church by the king, or by the State, there could be no legal
pretence that it could be resumed, or that it would become the
property of the State in consequence of the revolution. But,
admitting that such might have been the right of the State,
yet the court held that a statute passed in 1776 operated as a
new grant, and a confirmation of the title of the church lands,
to the use of the church, and vested an indefeasible and irre-
vocable title ; and that a contrary doctrine would uproot the
fundamental principle of a republican government, to wit, the
right of the citizens to the free enjoyment of property lawfully
acquired, (a)
The supreme court of North Carolina declared unconstitu-
tional and void a statute repealing a grant of lands to the
University of that State, (b)
In 1758, the government of New Jersey, by a convention with
the remnant of the tribe of Delaware Indians, extinguished
their title to all the lands in that territory, south of the river
Raritan, by taking a release ; in consideration of which release
the government purchased a tract of land on which the In-
dians were to reside. In the act of the legislature, confirming
the convention, it was provided " that the lands to be pur-
chased for the Indians aforesaid should not thereafter be sub-
ject to any tax ; any law, usage or custom to the contrary
thereof in any wise notwithstanding." The Indians continued
in possession of the land thus conveyed to them, until 1801,
when they became desirous to join their brethren in Stock-
bridge, and applied to the legislature of New Jersey for liberty
to sell their lands. An act was passed, granting this liberty,
but whoUy silent as to the privilege of exemption from taxa-
tion annexed to the land by the act of 1758. The commis-
sioners, under the act of 1801, sold the land in 1803, to George
Painter and others. In 1804, the legislature repealed the
(a) Terrett v. Taylor, 9 Cranch, 43. See also Pawlet v. Clark, 9 Cranch,
292. Lowry v. Francis, 2 Yerger, 534. Society v. New Haven, 8 Wheat.
464.
(b) University v. Foy, 2 Haywood, 310, 374. Den v. Foy, 1 Murph. 58.
326 LAW OF CONTRACTS.
section of the act of 1758, which exempted the land from
taxation. The land was afterwards taxed, and the taxes de-
manded. The State court sustained the tax ; but the supreme
court of the United States held that the act of 1804 was un-
constitutional, as it impaired the obligation of " a contract
clothed in forms of unusual solemnity."
The privilege, though for the benefit of the Indians, was, by
the terms which created it, annexed to the land itself, and not
to their persons. It was for their advantage that it should be
so annexed ; because, in the event of a sale (on which alone
the question would become material) the value would be en-
hanced by it. The State might have insisted on a surrender
of this privilege as a condition of permitting the sale. But as
the land was sold with the assent of the State, with all its
immunities, the purchaser succeeded, with the assent of the
State, to all the Indian rights, and became entitled to the
benefit of the contract between the State and them. The
obligation of that contract was impaired by a statute annul-
ling so essential a part of it. (a)
In 1769, a charter was granted by the crown, incorporating
twelve persons by the name of the Trustees of Dartmouth
College, granting to them and their successors the usual cor-
porate privileges and powers, and authorizing the trustees,
w^ho were to govern the college, to fill all vacancies that might
be created in their own body. This charter was accepted by
the trustees, and the property, which had been contributed for
the benefit of the college, was conveyed to, and vested in, the
corporate body. In 1816, the legislature of New Hampshire
undertook to amend this charter, and to enlarge and improve
the corporation of Dartmouth College. The number of trus-
tees was increased to twenty-one; the appointment of the
additional eleven was given to the executive of the State ;
and a board of overseers, consisting of twenty-five persons,
was instituted, with power to inspect and control the most
(a) New Jersey v. Wilson, 7 Cranch, 164. See also Hardy v. Waltbam,
7 Pick. 110. Atwater v. Inhabitants of Woodbridge, 6 Conn. 223. Osborne
V. Humphrey, 7 ib. 335. Landon v. Litchfield, 11 ib. 251. But see 31 Conn.
410.
OBLIGATION. 327
important acts of the trustees. The majority of the old
trustees refused to accept the amended charter.
A suit was brought in the State court, by the old trustees,
against an officer of the new board which had assumed the
control of the institution and of its funds, to recover the prop-
erty thus assumed. That court decided in favor of the new
board ; holding that the amended charter was not a violation
of the constitution, (a) This decision was reversed by the
supreme court of the United States, and the college was re-
stored to its former foundation, {b)
The charter was held to be a contract ; and no one doubted
whether the amendment impaired its obligation. The chief
question raised was respecting the nature of the corporation ;
whether it was public or private. The whole doctrine of
public and private corporations, of eleemosynary institutions,
&c., was most ably discussed ; but that doctrine is not to be
considered in this place. As to public corporations, such as
counties, towns, 6cc., it is not doubted that the crown, or par-
liament, or a State legislature, may modify them at pleasure?
provided private rights of property are not thereby infringed.
It was admitted by the court, in this case, that if the charter
were a grant of political power ; if it created a civil institution
to be employed in the administration of government ; or if the
funds of the college were public property ; or if the State of
New Hampshire, as a government, was alone interested in its
transactions ; the legislature of the State might act according
to its own judgment, without restraint of its power by any
limitation imposed by the constitution of the United States.
But as the court held the college to be an eleemosynary insti-
tution, endowed with a capacity to take property for objects
not connected with government ; that the funds were bestowed
on the faith of the charter ; that the donors had stipulated for
the future disposition and management of the funds in the
manner prescribed by themselves ; and though neither those
who contributed the funds and made stipulations, nor those
(a) 1 N. Hamp. 111.
(b) 4 Wheat. 518. See also Norris i'. Abingdon Ac-ademy, 7 Gill & Johns.
7. Regents of University of Maryland v. Williams, 9 ib. 365.
328 LAW OF CONTRACTS.
for whose benefit they were contributed and made, might be
before the court ; yet those, whom they had legally empowered
to represent them forever, were entitled to assert all the rights
which the original donors, &c., possessed, while in being.
The charter was held to be a contract, to which the donors,
the trustees, and the crown (to whose rights and obligations
New Hampshire succeeded), were the original parties, and
clearly within the letter and spirit of the constitution. And
as the power of governing the college, and filling vacancies
in the board of trustees, was expressly given by the crown to
the trustees themselves, and their number was fixed at twelve,
and was thus forever to continue, the alteration, without their
consent, was of a character about which two opinions could
not be entertained ; that it was utterly subversive of the con-
tract on the faith of which donations were made to the col-
lege, (a)
The principles of the foregoing adjudication have often been
recognized and acted upon by the State judiciaries. In Wales
V. Stetson (b) Parsons, C. J., says, " the rights legally vested
in any corporation cannot be controlled or destroyed by any
subsequent statute, unless a power for that purpose be re-
served to the legislature in the act of incorporation." Hence,
in Nichols v. Bertram, (c) where a suit was brought to recover
the penalty for forcibly passing, a toll gate on a turnpike road
and the defence was that by statute of 1804 no turnpike cor-
poration was entitled to toll unless there were a signboard at
the toll gate, with the rate of toll legibly printed in capital let-
ters ; it was held, that though the letters on the board were
not capita/, yet as they were larg'e, and as the act incorporating
the turnpike was prior to the statute of 1804 and only required
(a) See also Allen v. McKeen, 1 Sumner, 276, where the principles of this
case were applied to statutes of Maine, attempting to change the tenure of the
ofBce of President of Bowdoin College. See also 2 Fairf. 118. 13 Ired. 75,
80. 3 Jones, (N. C.) 207. 18 Cal. 590. St. John's College v. The State, 15
Maryl. 3 74.
(ft) 2 Mass. 146. See also 9 Wend. 351. But see State v. Stebblns, 1
Stew. 299.
(c) 3 Pick. 342. See also Derby Turnpike Co. v. Parks, 10 Conn. 522.
OBLIGATION. 329
the toll board to contain the rates of toll printed in ''- large or
capital letters," the grant must prevail against the subsequent
statute.
A statute authorizing certain persons to pass over a turn-
pike road without paying toll, who were not exempted from
paying toll by the act incorporating the turnpike company,
is unconstitutional and void, if not accepted by the com-
pany, (a)
The Dedham Bank issued bills in the form of drafts on the
cashier of Middletown Bank in Connecticut, where its funds
were deposited for the payment. These drafts became a com-
mon currency ; and the legislature interposed, and enacted
that no bank should issue any bill, draft, &c., payable at any
place, except at the same bank ; and that every bank which
had issued or should issue any bill, draft, &c., payable at any
other place than at the same bank, should be liable to pay the
same in specie to the holder, on demand at said bank, without
any demand at the place, where, on the face of it, it was pay-
able. This statute, so far as it applied to drafts issued before
its enactment, was held to be unconstitutional. The obliga-
tion of the drawer of a bill is to pay, on refusal by the drawee,
and seasonable notice of his default. This obligation is im-
paired by a statute requiring payment to be made on different
terms. (6)
A statute of Alabama provided that if any incorporated
bank should not, after six months from the passing of said
statute, make regular specie payments, its charter should be
forfeited. This statute was held to be unconstitutional and
void as to preexisting banks, as it annexed a cause of forfeiture
not contained in the acts incorporating them, and without the
consent of the corporations, (c)
Where a company was incorporated for the purpose of
making a turnpike road, but sufficient subscriptions were
not obtained to authorize the granting of a charter, and an
(o) Pingry v. Washburn, 1 Aik. 264.
(6) King V. Dedham Bank, 15 Mass. 447.
(c) The State r. Tombeckbee Bank, 2 Stew. 30. See also Logwood v.
Huntsville Bank, Minor, 23.
330 LAW OF CONTRACTS.
additional statute divided the contemplated road into two parts,
and authorized the granting of two charters, and provided that
those who had subscribed for stock at one place, should be
members of one company, and those, who had subscribed at
another place, should be members of the other company ; the
last statute was held to be unconstitutional and void as to
those stockholders who had not agreed to its provisions, (a)
The legislature of Vermont passed an act releasing a debtor
from imprisonment, and directing that the bond which he had
given to the sheriff for the liberty of the prison limits, and
which had been assigned to the creditor, should be discharged-
The supreme court of that State decided that this act was un-
constitutional, (b) So it was held by the supreme court of
Indiana, that the legislature could not deprive a creditor of
his right to recover payment from bail who were absolutely
fixed, (c) So it was decided in Kentucky, that a party, who
had commenced an action before the occupying claimant law
of 1797 was passed, had a right, by the constitution, to have
his cause decided according to the rules of law that were in
force when his suit was commenced, (d) Like decisions have
been made in North Carolina (e) and in Tennessee. (/)
Where a tract of land, including a river not navigable, was
granted by patent, without any reservation, or any restriction
in the use of the river, it was decided that a subsequent statute,
which required the grantee to alter his dams on the river, so
as to let salmon pass up, impaired the obligation of the con-
tract contained in the patent, and was void, (g-)
A statute, dividing a town and incorporating a new one,
enacted that the new town should be held to pay its proportion
(a) Indiana, &c. Turnpike v. Phillips, 2 Pennsyl. 184.
(b) Starr v. Robinson, 1 Chip. 257. See also 1 Aik. 121. 2 Verm. 174,
517. 3 Verm. 360.
(c) Lewis V. Braokenridge, 1 Blackf. 220.
(d) Johnson v. Rowland, Pr. Dec. 90. And see also Grayson v. Lilly, 7
Monroe, 11. January v. January, ib. 544. Pool v. Young, ib. 588. Mc-
Kinney v. Carroll, 5 Monroe, 98. Lapsley v. Brashears, 4 Littell, 53.
(e) Jones v. Crittenden, 1 Car. Law Rcpos. 385.
(/) Townsfiid I'. Townsend, Peck, 1.
(j/) People V. Piatt, 17 Johns. 195.
OBLIGATION. 331
towards the support of paupers, then on expense in the old
town. A subsequent statute, exonerating the new town from
this liability, was held to be void, as it impaired the obligation
of the contract created by the statute of division and incor-
poration, (a)
In 4 Wheat. 207, Marshall, C. J., said that, » If, in a State
where six years may be pleaded in bar to an action of as-
sumpsit, a law should pass, declaring that contracts already
in existence, not barred by the statute, should be construed to
be within it, there would be little doubt of its unconstitution-
ality."
And the supreme court of Massachusetts had previously
declared, that " if the legislature of any State were to under-
take to make a law preventing the legal remedy upon a con-
tract lawfully made and binding on the party to it, there is no
question that such legislature would, by such act, exceed its
legitimate powers. Such an act must necessarily impair the
obligation of the contract, within the meaning of the constitu-
tion." (b) The same doctrine is explicitly asserted by Story,
J., (c) and by the supreme court of Maine, (d)
A statute, therefore, providing that existing contracts, if
made before a specified day, shall not be sued ; or that, if sued,
they shall not be enforced, would be unconstitutional, as im-
pairing the obligation of contracts ; provided such statute be
wholly retrospective, or do not allow a reasonable time for the
creditor to bring his action. And it will be fomid, that when
statutes of limitation were first enacted, there was generally a
future day fixed, before which they were not to operate ; and
a saving of all actions already pending, (e) There are several
instances, under the provincial government of Massachusetts,
in which a clause was inserted in a newly enacted limitation
act, making it the duty of town officers to read the statute
annually in open town meeting, for the purpose of giving
(a) Bowdoinham v. Richmond, 6 Greenl. 112. (b) 8 Mass. 430.
(c) 2 Gallis. 141. (^0 2 Greenl. 293, 294.
(e) See English Sts. 32 H. VIII. c. 2. Brook's Reading, 5, 6. 21 Jac. I.
c. 16. Lord Tenterden's act, 9 Geo. IV. Massachusetts Ancient Charters,
&c., 175, 216, 307, 522, 672, St. 1786, c. 52, 1807, c. 75, 1825, c. 109, § 2.
332 LAW OP CONTRACTS.
actual notice of its provisions to all the people, (a) The jus-
tices of the court of common pleas were also enjoined to cause
these statutes to be read, at the opening of their courts, from
time to time.
It was never deemed unjust or improper, either in England
or in this country, for the legislature to narrow the time al-
ready prescribed for the commencement of actions, provided
reasonable time were left for suitors to bring actions prior to
the period last fixed. This is a regulation of the remedy, and
not an impairing of the obligation of contracts. So it was
viewed by the courts, in the cases already cited ; and so it
was expressly asserted in Call v. Hagger. (b) A statute, which
should prescribe an unreasonably short time of limitation of
suits on existing demands would doubtless be held to be un-
constitutional, as it would be tantamount to a denial of all
remedy. Berry v Ransdall, 4 Met. (Ky.) 292.
A compact between States is within the. prohibitory clause
of the constitution. In one of the articles of the compact be-
tween Virginia and Kentucky, it was declared, that all private
rights and interests of lands within the said district (Ken-
tucky), derived from the laws of Virginia, shall remain valid
and secure under the laws of the proposed State, and shall be
determined by the laws now existing in this State (Virginia).
Acts of the legislature of Kentucky provided that persons
evicted from lands, in certain cases, should not be liable for
mesne profits prior to actual notice of an adverse title, and
that the " right owner," on recovering his estates from an in-
truder, &c., should pay for improvements made by the intru-
der, &c. Under the laws of Virginia, no such burdens were
imposed on the owners of the lands. These acts were unani-
mously held to be unconstitutional, (c) But all reasonable
quieting statutes, passed by the legislature of Kentucky, are
within the principles and practice of Virginia, which has never
been without a statute of limitations, since 1795. Hence, the
(a) Ancient Charters, &c., 605, 623.
(h) 8 Mass. 430. See also Locke v. Dane, 9 Mass. 360. Blackford v. Pel-
tier, 1 Blackf. 36. Bigelow v. Pritchard, 21 Pick. 175.
i^c) Green v. Biddle, 8 Wheat. 1. See also Bass v. Dinwiddle, Cooke, 130.
OBLIGATION. 333
Kentucky statutes, limiting to seven years the time of bring-
ing actions to recover lands held by adverse possession, do not
violate said compact, though, by the statute of Virginia and
the first statute of Kentucky, twenty years were allowed,
within which a claimant might bring an action in such
case, (a)
The foregoing decisions show the incorrectness of a remark
sometimes made by courts, that the prohibitory clause in the
constitution of the United States " was provided against paper
money, instalment laws, &c.," (b) and warrant the suggestion
which has been previously made, that though the evils of such
laws might have been the occasion of the prohibition, yet the
clause is not to be confined to cases that had previously oc-
curred. Indeed, there is, in the same clause, a specific prohi-
bition as to paper money, &c. If that had been all that was
in view, the further mention of laws impairing the obligation
of contracts would have been tautology.
In Foster v. Essex Bank, (c) it was held that an act pro-
viding that all corporations then existing, or thereafter to be
established, whose powers would expire at a given time, should
be continued as bodies corporate for three years beyond the
time limited in their charters, for the purpose of suing and
being sued, and closing their concerns, but not for continuing
the business for which they were established, was constitu-
tional. The object and effect of the act were not to impair
the obligation of contracts, but to continue such obligation in
existence, and enforce it.
This seems not to differ in principle from statutes extending
the time within which actions are limited by previous statutes ;
as where the time limited for commencing a suit is three years,
and, before the expiration of that time, the legislature extend
the time to four years ; such extending statutes have always
been regarded as proper exercises of legislative authority, as
well as the statutes, before referred to, which narrow the time
within which suits shall be instituted.
(a) Hawkins v. Barney, 5 Peters, 457, See 3 Met. (Ky.) 566.
(b) 9 Mass. 363,
(c) 16 Mass. 245. See also Lincoln & Kennebec Bank v. Richardson, 1
Greenl. 79.
334 LAW OP CONTRACTS.
The legislature of a State cannot constitutionally repeal the
charter of a bank, if such power be not reserved in the char-
ter, (a) but may impose a tax on the capital stock, &c., of a
bank previously incorporated by it, unless the right thus to tax
has been expressly relinquished ; (b) and may impose, prospec-
tively, a penalty on such bank, for refusal or neglect to pay
its bills on demand.
A statute of Pennsylvania granted a stay of execution under
certain conditions, on all judgments or debts upon which stay
of execution had been or might be waived by the debtor in
any original obligation or contract upon which judgment had
been or misfht thereafter be obtained. In a case in which
debtors, by a sealed instrument, authorized an entry of judg-
ment against them, " without any stay of execution after the
day of payment," it was held that this was a release of their
right to a stay of execution, and became a part of their con-
tract, and that the legislature could not constitutionally
authorize a stay of execution beyond the limit of that con-
tract, (c)
A statute, under which contracts are authorized, cannot
constitutionally be repealed or altered so as to affect those
contracts, (d)
A statute providing that a debtor may remove his property,
on which his creditor has a judgment lien, without rendering
the property liable to sale on execution, is unconstitutional, (e)
A statute of the State of Delaware granted authority to
(a) Michigan State Bank v. Hastings, 1 Doug. (Mich.) 225.
(6) Providence Bank v. Billings, 4 Peters, 514. Judson v. The State, Mi-
nor, 150. Portland Bank v. Apthorp, 12 Mass. R. 252. See 3 Head, 317.
A liter, if that right is renounced in the charter of a bank. Jefferson Branch
Bank v. Skelly, 1 Black, 436. Dodge v. Woolsey, 18 Howard, 831. Me-
chanics & Traders' Bank v. Debolt, ib. 380. Brown v. Penobscot Bank, 8
Mass. 445. And see 1 Vroom, 473.
(c) Billmeyer v. Evans, 40 Penns. State R. 824.
(
and that a subsequent statute purporting to grant authority to
another company to build a bridge within those limits im-
paired the obligation of the contract with the first company,
and was therefore -unconstitutional and void, (a)
A statute of Tennessee allowing a defendant the value of
his improvements upon land, in an action of ejectment brought
against him, or by suit for the same, was held to be uncon-
stitutional and void, (b)
A statute, which impairs the obligation of a contract made
before its passage, is void, whether the contract exists in its
original shape or has been merged in a judgment; as a statute
prohibiting a levy on property that was subject to execution
when the contract was made, (c)
There are decisions on this subject, which have not com-
manded general assent.
In Baxter t\ Taber, (d) the court said, that the court of ses-
sions had no authority to extend prison limits beyond the land
of the county and the highways communicating with the
prison. A different understanding had prevailed, and the ses-
sions had included private property in the prison limits, and
prisoners had passed over such property, relying on the as-
signed limits, as to the legal extent of their liberties, while in
confinement for debt, and thereby had committed escapes,
within the legal construction of the condition of their bonds.
(a) Binghamton Bridge, 3 Wallace, 52. And see Boston & L,owell Rail-
road V. Salem & Lowell Railroad, 2 Gray, 1. McRoberts v. Washburne, 10
Min. 23. Hartford Bridge Co. v. Union Ferry Co. 29 Conn. 210.
(6) Nelson v. Allen, 1 Yerg. 360.
(c) Forsythsu. Marbury, R. M. Charlt. 324.
(d) 4 Mass. 861.
OBLIGATION. 337
By statute of 1818, c. 92, the legislature enacted that no per-
son, who had g-iven bond for the prison liberties, should be
considered as having committed an escape in consequence of
having entered upon private estate, &c. The constitutionality
of this statute, so far as it was intended to operate on bonds
already forfeited, was strongly controverted in argument, but
was sustained by a majority of the court, (a) This decision
was doubted by the court of New Hampshire, in the case of
Woart V. Winnick, (b) and has never been deemed sound by
the profession in Massachusetts.
By the militia law of Massachusetts (St. 1793, c. 14, § 3),
persons who had held by commission the office of subaltern,
or office of higher rank, were exempted from enrollment and
duty in the militia. The term of service was immaterial.
This statute was repealed by statute of 1809, c. 108, by which
persons, who had held militia offices for a term less than five
years, were exempted, on condition that they paid two dollars
yearly to the town treasurer, and kept themselves furnished
with equipments, and sent or carried them to the inspection
in May. The court held, that this statute was constitutional,
so far that an officer who had held a commission from 1797
to 1799, and was honorably discharged, was nevertheless lia-
ble as a conditional exempt, (c) This case seems to have
been decided principally on the ground, that in time of war,
&c., the exigencies of the State might require the services of
its citizens, and that such an exemption would apply in war
no less than in peace, if allowed at all, and thus the public
defence would be weakened, (d) But if the statute of 1793
was a lawful contract between the State and those who
subsequently held offices in the militia, the impolicy of that
contract, however manifest, would not seem to prove that its
(a) Walter v. Bacon, 8 Mass. 468. Locke v. Dane, 9 Mass. 360. Patter-
son V. Philbrook, ib. 151.
(b) 3 N. Hamp. 480.
(c) Commonwealth v. Bird, 12 Mass* 443.
(d) In 49 Penn. State Rep. 302, it was said by Woodward, J., that "war
does not suspend the constitutional rights of the citizens."
22
338 LAW OP CONTRACTS.
obligation was not impaired by taking from the officer the
only benefit which he probably ever anticipated from becom-
ing party to that contract.
A statute of Alabama conferred a military title, and settled
an annuity for life on Samuel Dale, for services rendered and
losses incurred by him in a war with the Creek Indians. Be-
fore any payment was made to said Dale, this statute was
repealed. A majority of the court of that State held, that the
statute created no obligation or contract on the part of the
State, and that the repeal thereof was not unconstitutional, (a)
The reasons of the dissenting judges will probably commend
themselves to the profession.
It is to be observed, in conclusion of the subject of laws im-
pairing the obligation of contracts, under the prohibition in
the constitution, that the prohibitory clause does not extend
to a State law enacted before the constitution went into op-
eration, namely, the first Wednesday in March, 1789. {b)
A notice of two or three points, analogous to the doctrines
of the preceding part of this chapter will close this discussion
of the law of contracts.
The rate of interest, in England, has several times been
altered by statute. The weight of authority seems to be, that
when a contract bearing interest is made before the passing
of a statute which reduces or enhances the rate of interest, it
will carry the interest allowed at the time the contract was
made, (c) From a brief and probably inaccurate note of
Walker v. Perrin, (d) a different doctrine is to be inferred.
(a) Dale v. The Governor, 3 Stew. 387.
(b) Owings V. Speed, 5 Wheat. 420.
(c) Dalison, 12, pi, 17. 1 Hawk. c. 29, § 11. Bac. Ab. Usury, B. Ord
on Usury, 35. Walker v. Penry, 2 Vernon, 42, 78, 145. In 4 Wheat, 207,
Marshall, C. J., said : " If a law should declare that contracts already entered
into, and receiving the legal interest, jhould be usurious and void, either in
whole or in part, it would impair the obligation of the contract and would be
clearly unconstitutional."
(d) Pre, Ch, 50.
OBLIGATION, 339
And Twisden, J., in Rex v. Allen, (a) is reported to have said,
that if the lender of money accepts a higher rate of interest
than the statute allows, on a bond made before it was passed,
he would subject himself to the penalty of usury, (b)
It is an old and established maxim of the common law, that
where a man covenants to do an act that is lawful, and an act
of parliament comes and makes it unlawful, this is a repeal
of the covenant. So, if a man covenants not to do a thing
which it was lawful for him to do, and an act of parliament
comes after and compels him to do it, there the act repeals
the covenant, (c) The question naturally presents itself, how
this doctrine is affected by the aforesaid constitutional pro-
vision. In The State v. Jones, 1 Ired. 414, it was held that
the legislature might constitutionally pass an act changing the
location of the seat of justice in a county, although a contract
for the purchase of another site had been previously made by
commissioners appointed by law for that purpose.
So far as statutes impair the obligation of contracts, within
the true intent of the constitution, it is clear that the above
maxim is narrowed in its operation. The constitution, being
the paramount law, must prevail. The maxim, however, may
remain true, so far as acts of congress are substituted for acts
of parliament, and are within the legitimate power of congress.
Parliament is said to be omnipotent, and the prohibitory clause
in the constitution does not restrain congress. That clause
extends only to laws passed by a State legislature, (d)
Congress may declare war, or lay embargoes, and thereby
render unlawful the fulfilment of contracts ; and all acts, which
congress may constitutionally pass, may doubtless impair the
obligation of contracts with which they interfere.
The cases on this point, in the English books, are princi-
pally those in which political movements have interposed
between the contracting parties, and rendered the performance
(a) T. Ray. 197.
(b) See also Procter v. Cooper, Pre. Ch. 116.
(c) Co. Lit. 206 a. Bac. Ab. Covenant, G. 1 Salk. 198. 12 Mod. 169.
1 Ld. Raym. 321. 7 Mass. 338.
(d) Evans v. Eaton, Peters's C. C 322.
340 LAW OP CONTRACTS.
of a contract unlawful. Alien enemies cannot, during war,
recover debts, nor enforce performance of any agreements
made during a state of amity. On the return of peace, how-
ever, the rights and obligations of the parties are restored.
But no liability for non-performance during war attaches on
the cessation of hostilities. If the contract then remain capa-
ble of performance, it will be enforced at law. If it be a con-
tract which is wholly defeated by the intervention of war, then
the war, and the law existing during war, wholly exonerate
the party ; " repeal the covenant." (a) An embargo is always
regarded as a temporary suspension of commercial intercourse,
and therefore it merely postpones the performance of a con-
tract, (b) There are some distinctions, in the English deci-
sions, between an embargo laid by the government of both
the contracting parties, and by the government of one of the
parties only ; holding that, in the latter case, the act of the
government is the act of the party, and no defence or excuse
for non-performance of his engagements.
Still, there doubtless is much room left for the operation of
the common law maxim, even under State legislation. It is
not easy to lay down the limits with exactness. Perhaps
statutes which operate, incidentally only, to impair the obli-
gation of contracts, and do not ex necessitate produce that
effect ; that is, where such impairing is not the inevitable, and
therefore cannot be supposed to be the intended, effect of the
statutes; they will take effect constitutionally, though con-
tracts are thereby impaired. As if a contract is made for the
erection of a wooden house in a city, by a given day, and a
statute, in the mean time, prohibits the building of such house.
Or if a man contracts to build a house on a specified spot of
land, and the legislature, or other body authorized by the
legislature, lay out a highway over the spot. " The framers
of the constitution," says Marshall, C. J., 4 Wheat. 629, " did
not intend to restrain the States in the regulation of their civil
(a) See Toutcng v. Hubbard, 3 Bos. & Pul. 291. Atkinson v. Ritchie, 10
East, 530.
(&) Iladley v. Clarke, 8 D. & E. 259. Baylies v. Fettyplace, 7 Mass.
325.
OBLIGATION. 341
institutions adopted for internal government ; and that the in-
strument they have given to us, is not to be so construed, may-
be admitted." In People v. Hawley, 3 Mich. 330, it was held
that a State, in the exercise of its police powers, may prohibit
any trade or employment which is found to be injurious to its
citizens ; and if the exercise of such power operates to prevent
the performance of contracts previously made, " it does not,"
said the court, " operate directly upon the contract, and there-
fore is not within the prohibition of the constitution of the
United States."
By a law of Connecticut, when Jhe last day of grace on a
promissory note fell on one of certain enumerated holidays,
to wit, on a fast or thanksgiving day, the fourth of July, or
Christmas, the note was payable on the first week-day pre-
ceding. After a note had been given, on which the last day
of grace was the first day of the ensuing January, a statute
was passed directing that the former statute should be amended
by inserting, after the word Christmas, the first day of Janu-
ary ; and the court of that State decided that this amendment
operated upon the parties to that note, so that payment could
be legally demanded and the note protested, on the last day
of December. Barlow v. Gregory, 31 Conn. 261.
A statute of Pennsylvania directed the annual appointment,
by the governor, of canal commissioners, and their pay was
prescribed at four dollars per diem. A subsequent statute,
passed while commissioners were in office under the former,
and to take effect from its passage, reduced their pay to three
dollars per diem. The supreme court of the United States
decided that there was no contract between the State and the
commissioners, and that the second statute was constitutional
and valid. Butler v. Commonwealth of Pennsylvania, 10
Howard, 402. So it was decided by the court of Tennessee,
that the compensation- of officers of government may be re-
duced by the legislature during the time for which such officers
were appointed ; a law fixing the compensation for the dis-
charge of the duties of an officer not constituting a contract
with him, within the meaning of the constitution of the
342 LAW OF CONTRACTS.
United States. Haynes v. The State, 3 Humph. 480. See
also 6 Serg. & R. 323. 5 Watts & Serg. 418. 4 Barr, 51.
15 Texas, 577.
For further matter, on the subject of this chapter, see 1
Kent Com. (11th ed.) 445 Sf seq. Sedgwick on Statutory
and Constitutional Law. Smith on Statute and Constitu-
tional Law.
INDEX.
— -♦ —
A.
Paqe
ABJURATION OF THE REALM,
what it was, its effects, and its abrogation . . . . 84, 85
ACCEPTANCE OF OFFER,
•whether it binds the party, who offers, from the time when it
is made, or from the time when he receives notice thereof, 16 §' seq.
must conform to the terms of the offer .... 18
(See Offer.)
ACCOUNT,
action of, abolished in Massachusetts . . • . 131
ACCOUNT STATED,
account voluntarily stated, with a promise, express or implied,
to pay it, formerly held conclusive ^4
slu-charged items now allowed to be corrected . • 74
ADMINISTRATORS. (See Execdtors and Administrators.)
AGENTS. (See Attorneys, &c.)
ALIENS,
alien enemy cannot make contracts during war ... 95
an alien's contract made during peace cannot be enforced
durino- war, but is suspended until return of peace • 95
ASSENT 0F° PARTIES,
must be mutual, reciprocal, concurrent .... 14
and in some language, oral, written or symbolical, -which is
mutually intelligible 14
is voidable if obtained by duress, by mistake concerning the
subject of the contract, or by fraud 23-35
ASSIGNMENT OF CHOSES IN ACTION,
what choses in action are or are not assignable . . 187 §- seq.
rights of assignees, under an assignment ib.
ATTAINTED PERSONS AND OUTLAWS,
cannot, by the common law, make contracts for their own
benefit 92,93
ATTORNEYS AND OTHER AGENTS,
agents the genus ; attorneys, in the technical sense, a species
of agents 1^4
344 INDEX.
Paqe
ATTORNEYS AND OTHER AGENTS, Continued.
an aiiorne?/ must contract in the name of his principal . 105
form of contract, made by him, which will bind his principal 105
agents generally. Rules for determining whether a contract
purporting, on its face, to be made as agent, binds the prin-
cipal, or the agent, or neither ...... 106-112
present law as to liability of agents for foreign principals 110, 111
ratification, by principal, of contracts made by one assuming
to be his agent 112,113
public agent not personally bound by contract made by him
in behalf of the government, unless he pledges his personal
responsibility 112
B.
BOUNDARIES,
construction of, in conveyances of real estate . . . 294 S^- seq.
extent of grant, by individuals, bounding land on a way, pub-
lic or private, or on a stream not technically navigable 296 §' seq.
difference in the extent of grants by individuals and by na-
tions or states, bounding on streams .... 301
extent, by the civil law, by the common law, and by the Mas-
sachusetts colonial ordinance of 1647, of grants bounding
on the sea, the shore, or flats 297 Sj- seq.
extent of boundaries on ponds, large and small, in Massachu-
setts .......••• 298
c.
COMPROMISE,
of what claims a compromise is a sufficient consideration for a
promise . . . . . . . . . 177, 178
CONSIDERATION,
what the consideration of a contract is . . . . 161
its necessity to the validity of all parol contracts . . 161
must be lawful . . 217
(See Unlawful Contracts.)
a seal affixed to a contract imports a consideration which the
contracting party is not permitted to deny ; except con-
tracts in partial restraint of trade . • • -2, 161, 233
one legal promise a good consideration for another . . 182
when a contract is valid, though part of the consideration is
void for insufficiency, or for illegality, especially under the
statute of frauds 216, 246 ^ se^.
INDEX. 345
Faox
CONSIDERATION, Continued.
when and why an executed consideration will not support a
contract ......... 193-205
gratuitous promises and services not a legal consideration 183, 184
American doctrine as to validity of voluntary subscriptions
to public objects 185, 186
consideration must be of some benefit to the promisor, or of
some inconvenience to the promisee .... 163
cases in which very slight benefit or inconvenience has been
held sufficient 170, 171
hmitation of the old doctrine that ynoral obligation is a sufficient
consideration for a promise 178-182
when forbearance to sue is a sufficient consideration for a
promise .....•••■ 172-1<6
agreements to accept part of an admitted claim, in satisfaction
of the whole, are generally void for want of consideration 192
exceptions to this rule 1^2
as to consideration arising from a third person; that is, when
A promises B, on a consideration arising from A, to pay
money, &c. to C, whether this can be deemed, in law, a
contract with C, on which he can maintain an action in
his own name ........ 205
such promises, when under seal, never held to be promises to
C .• • • "^^
fluctuating decisions, on this point, by the courts in England,
and opposite decisions by American courts . . . 206-210
latest decisions on this subject in England and in Massachu-
setts ■..._._ 207-210
when a contract is void or voidable because the consideration
cannot possibly be performed 211 S)- seq.
failure of consideration generaWj a\o\ds a contvRCt . . 219
whether this applies to failure of title to real estate conveyed
with covenant of warranty, the decisions are not uniform 219, 220
CONSTITUTIONAL LAW,
judicial exposition of the provision in the constitution of the
United States that no State shall pass a law impairing the
obligation of contracts 317 Sf seq.
cases in which State laws have been held to violate this pro-
^^sion 322 §• seq.
CONSTRUCTION,
rules for the construction of contracts, with examples of the
application of those rules 272-316
apparent intent of the parties always to be regarded, so far
as the rules of law permit 274
346 INDEX.
Page
CONSTRUCTION, Continued.
1. the terms of a contract are to be understood in their ordi-
nary and common sense, as determined by usage . . 275
2. construction is to be favorable ; meaning of favorable . . 277
3. subject matter of a contract to be considered in construing
its terms, which are to be understood in the sense most
agreeable to the subject matter 278
cases in which general words are restrained by the subject
matter 279-285
4. the whole contract to be regarded, and one part to be inter-
preted by another ....... 285
5. construction to be such that the whole contract, and every
part of it, may take effect, if it be possible by the rules of
law and the parties' intentions . • . . 287, 288
as to boundaries of land described in conveyances thereof
(See Boundaries.)
6. if the words of a contract do not fully express, or even if they
are contrary to, the evident intention of the parties, the in-
tention is to be preferred to the expression . . . 303
7. the time when a contract was made to be regarded in con-
struing it; and contemporaneous exposition of great weight
in construction ........ 309
but contemporaneous exposition is not to be called in aid, if
the language is clear and precise, but only when it is
equivocal or doubtful 311
ancient grants to be expounded as the law was when they
were made ......... 309
8. when terms are doubtful or ambiguous, they are to be taken
most strongly against the party contracting ... 312
but this rule is applied in those cases only in which other
rules fail • • 313
CONTRACTS,
definitions 1 ^^ seq.
division of; parol, specialty and of record ; express and im-
plied ; executory and executed 3 §• seq.
the introduction of implied promises or contracts into the
law, and the action of assumpsit in which a promise is
alleged, were caused by a party's right to wage his law,
in the action of debt on parol contracts ... 9
it is often by mere fiction that a promise is implied, sometimes
even against a party's protestations ; the ground of an al-
leged promise being justice and the medium of enforcing
performance of a legal and moral duty . . . . 4, 8, 9
{see consideuation, construction, contribution, &c., unlawful
Contracts.)
INDEX.
347
Faoe
10
CONTRIBUTION AND INDEMNITY,
when one of two or more joint debtors is compelled to pay the
whole, he may recover of the others their proportionate
part
this rule applied to joint sureties, except where one of them
becomes co-surety at the request of him who has paid . 10, 11
as between wrong-doers, the rule that the law does not im-
ply a promise of contribution or indemnity has exceptions 1 1
the rule applies, wJien two or more are sued for a joint tort,
and judgment is recovered against all, but execution is
levied on one only ; and where only one of them is sued
and has judgment against him, which he satisfies . . H
but the rule is restricted to cases in which the party seeking
contribution or indemnity knew, or must be presumed to
have known, when he did the act for which he was held
responsible, that it was unlawful. Examples . . • 11-13
CORPORATIONS,
can make and enforce no contract which their charter does
not expressly authorize, or which is not fairly incident to
the authority expressly conferred .... 160
old doctrine, that they can contract only under their seal, does
not now prevail ; it is narrowed in England, and abrogated
in the United States 156 §■ seq.
may be bound, like individuals, by implication from corporate
acts, and be held answerable in the action of assumpsit . 156, 157
have incidental power to incur debts in the course of their
legitimate business . . • • • • • ^'^'
if established for the purpose of making insurance, they have
no implied power to lend money on discount of notes . 159, 160
have not power to engage as surety in business in which they
have no interest, and are not legally liable on their accom-
modation indorsements 1^^
D.
DECEIT. (See Fraud.)
DRUNKARDS,
present law that persons, when so intoxicated as to be de-
prived of reason, cannot make a binding contract . . 81, 82
but they will be held to pay for goods which they buy, if they
retain and use them after reason returns ... 82
DURESS,
what is such duress of imprisonment as will avoid a contract 23 §' seq.
348 INDEX.
Page
DURESS, Continued.
imprisonment on legal process, though in due form, if sued out
maliciously and without pix)bable cause .... 24
or if one of the purposes of an arrest is to extort money or
enforce settlement of a claim ..... 24
Duress per minas is caused by threats that produce a firm
man's fear of loss of life or member, of mayhem, or of
unlawful imprisonment ....... 25
aliter of threats of mere battery, or of destruction of prop-
erty, &c 25
generally held that duress of property will not avoid a con-
tract 25
yet when one's property is unlawfully detained, and he pays
money involuntarily, not by way of adjustment, but mere-
ly for the purpose of obtaining the j^i'operty, he may re-
cover back the money so paid ..... 26
such payment, however, is held void on the ground that it
was compulsory, and not that it was made under duress in
its technical sense 26
such cases turn on the question whether the payment was
voluntary or involuntary ...... 26
duress that will avoid a contract must be practised on him
who makes the contract : hence
if two or more make a contract by reason of duress to one of
them, it can be avoided only by him who was under duress 27
but as husband and wife are regarded as one person, his con-
tract, made to relieve her from duress, may be avoided as
if he had been under duress ..... 28
and when one becomes surety for him who gives bond to an
officer who has no authority to require the principal to give
it, it is voidable by the surety as well as by the principal 27, 28
a promise by B, to A., made under duress by C, is avoidable
by B 28
how a contract, made under duress, may be rendered valid
by the party's subsequent acts ..... 29
a promise by a party, while under duress, for the purpose of
gaining his liberty, that he will execute a contract when
at large, is avoidable 29
E.
EXCOMMUNICATED PERSONS,
under no present disability 94
INDEX. 349
EXECUTORS AND ADMINISTRATORS,
are liable, generally, to the extent of assets received, on per-
sonal contracts of the decedent upon which he was liable
to a suit ......... 144
also for expenses of decedent's funeral, and for rent of real
estate demised to him for a term longer than he lived, if
they occupy it 144, 145
since the statute of frauds, not liable upon any special prom-
ise to answer damages out of their own estate, unless the
promise be in writing ....... 146
what special promise is required to be in writing . . 146 §• seq.
written promise void unless made on sufficient consideration 147
whether the consideration needs to be in writing . . 2
when judgment is to be against them de bonis propriis, and
when against the property of the decedent . . . 145, 146
have no power to charge decedent's estate by contracts orig-
inating with themselves ...... 138
personally liable on contracts made by them, on sufficient
consideration, in the course of administration, or for pay-
ment of claims against the decedent, which he was bound
to pay 139, 140
extent of their authority to waive the defence of the statute
of limitations 140-144
as to their authority to maintain actions for breach of cove-
nants made with decedents concerning real estate . . 150, 152
cannot maintain, nor be held liable to, actions in the courts
of any country or state, besides that from which they de-
rive their authority 152
when the acts of one only, where there are two or more, are
regarded in law as the acts of all .... 152-154
by the common law, neither one nor a majority, can sell real
estate which a testator, by his will, directs to be sold by
them .......... 154
F.
FALSA DEMONSTRATIO,
when falsa demonstratio of real estate does not vitiate the
instrument of conveyance 293 ^ seq.
FRAUD,
in general, fraud that will avoid a contract consists in sug-
gesting falsehood or concealing truth .... 33
it is not the moral quality of acts or omissions which alone
determines their legal quality and eflfect .... 33
350 INDEX.
Paab
FRAUD, Continued.
certain statements or concealments, which may be ethically
wrong, will not avoid an injm'ious contract thereby induced 33 ^ seq.
as a seller's statement of the quality and value of his goods,
the price he paid or has been offered for them
so of a buyer's statement of the highest price that he is au-
thorized to pay for goods, or of the value of them . . 34
and of his concealment, by mere silence, of his private infor-
mation of facts or events that enhance the market value of
the goods which he buys : Aliler, if he utters a word tend-
ing to mislead the seller 34
a seller's concealment of intrinsic defects in personal prop-
erty, which are known by him, but which are not discov-
erable by the purchaser's proper diligence, will avoid a sale 35
aliter, it seems, in contracts for the letting and hiring of real
estate 35
FRAUDS, STATUTE OF,
whether the consideration of the promises and agreements on
which, by this statute, no action shall be brought, unless
tliey are in writing, is required to be writing . . 2
the statute does not render valid a written promise or agree-
ment, unless it be on a sufficient consideration . . . 147, 162
{See Executors and Administrators.)
G.
GAMING,
fair gaming contracts were not prohibited by the common
law, but are now made void in England, by act of parlia-
ment 239, 268, 269
in Massachusetts all gaming is unlawful . . . . 269
(See Wagers.)
H.
HUSBAND AND WIFE,
(See Marriage. Married Women.)
I.
ILLEGAL CONTRACTS,
(See Unlawful Contracts.)
INFANTS,
before persons are twenty-one years old, they are, as a gen-
INDEX. 351
Page
INFANTS, Continued.
eral rule, held to be legally incompetent to contract a
binding obligation 36
exceptions to this rule 64-68
the main exception is a contract for necessaries . • 69
what are and what are not necessaries .... 69-72
whether liable for rent unless it be among necessaries . 67, 68
forms of contract that bind for necessaries . . . . 73-76
infants' contracts generally voidable, not void . . . 39-41
and may be affirmed by them after coming of age . . 42 c^- seq.
what acts, after coming of age, will or will not affirm (ratify)
or disaffirm a convevance of real estate made to or by an
infant ..." 43-46, 56, 57
slighter acts affirm an executed contract than an executory
one • ^^
not necessary to the affirmance of a. -contract made while
the party was an infant, that he should know that he is not
thereby bound ^^
INSANE PERSONS,
(See NoN Compotes Mentis.)
INTOXICATION,
(See Drunkards.)
L.
LBflTATIONS, STATUTE OF,
bar of removed only by express promise . 136, 142, 143, 180
when part payment removes the bar of . . • . 137, 143
(See Executors and Administrators. Partners.)
LORD'S DAY,
(See Sunday.)
M.
MARRIAGE,
at what ages parties may, by the common law, consent to
marriage 64, 65
how parties married under those ages may disaffirm the mar-
riage contract 65, 66
MARRIED WOMEN,
(generally incompetent, by the common law, to make an oblig-
atory contract
exceptions 83-87
352 INDEX.
Paob
90, 91
MARRIED WOMEN, Continued.
as to contracts made by them on representing themselves to
be single women ........ 88
and as to promises, after a husband's death, to pay debts in-
curred by them during his life 181, 182
various changes, as to their rights, powers, and liabilities,
have been made by State legislatures .... 91
how they may convey their real estate, and release dower in
the estate of their husbands ...... 88
gifts by husbands to wives, though null in law, are sometimes
recognized and enforced by courts of equity, if the hus-
band's creditors are not thereby prejudiced ... 90
eases in which, in Massachusetts, such gifts are held valid at
law
MISTAKE,
when a contract is rendered void by a mistake as to identity
of the subject thereof 30-32
N.
NON COMPOTES MENTIS,
to wit, all persons (except drunkards) of such mental incapa-
city as disables them to make a valid contract . . 77
idiots and insane persons (lunatics) were always held incom-
petent to contract ....... 77
contracts of a lunatic, however, if made for necessaries proper
for him, bind him to pay for them 78, 79
also his contracts made during a lucid interval . . 81
criterion of mental incapacity to make a binding contract . 79,80
abolishment of the old " notion" that a person, sued on his
contract, could not be allowed, in defence, to allege his
incapacity 77, 78
conveyance of real estate by a person non compos mentis, is
not void, but voidable. It conveys a seizin to the grantee 81
■whether a fair contract with them, made by one who was not
aware of their incapacity, is valid 80
{See Drunkards.)
o.
OBLIGATION OF CONTRACTS,
{See Contracts.)
INDEX. ' 353
OFFER,
may be retracted at any time before it is accepted . . 15
even where, by its terms, time is given for him to whom it
is made to accept or reject it; and acceptance after re-
traction is of no avail ....... 15
P.
PAROL CONTRACTS,
to wit, all that are not under seal, nor of record ; written as
well as oral 3, 4
PARTNERS,
definition of partnership, between the parties inter se, and of
ostensible, nominal, dormant or secret .... 113,126
when those who are not actual partners are liable as if they
were 113, 115
who are permitted, by law, to make a contract of partnership 115
mere participation in profits does not make parties partners
inter se ........•• 114, 117
partnership in unlawful business confers no right on either
partner against the other 116
extent of the implied authority of each partner to bind the
firm by simple contracts made in their names . . 118 ^' seq.
of the authority of one partner to bind his co-partners by a
sealed instrument ....... 124-126
a release by one binds all 1 25
of one partner's implied authority to moi'tgage, sell, and trans-
fer all the personal property of the firm, and to compromise
debts due to or by the firm 119,120
one partner has not power to bind his co-partners by a con-
tract in the name of the firm, respecting business not within
the scope of the partnership ; as to guaranty others' debts,
become surety for others, and the like . . . . 119
in a partnership between attorneys, physicians, &c., one part-
ner has less authority to bind the firm than he has in a
trading firm 121,122
a firm is bound by a note, &c., made in its name by one part-
ner for his private debt, unless the promisee had notice,
express or implied, that the promisor was acting wrong- -
fully 118, 119
generally, one partner can bind the firm only by a contract
made in its name : exceptions to this rule . . . 122-124
when actions can or cannot be maintained by partners against
each other during the partnership .... 130-135
23
354 INDEX.
PARTNERS, Continued.
liability of partners to creditors of the firm, after dissolution
of the partnership 136, 137
notice of dissolution generally necessary to exonerate retiring
partner from liability on contracts subsequently made by
the other partners with those who formerly dealt with them 136
dormant partners subject to this rule, only as to those cred-
itors who may have known them to be partners . . 137
death of a partner is held to be a public fact, and notice
thereof needs not to be given in order to exempt the survi-
vors from liabilities in consequence of the subsequent misuse
of the firm's name by one of the partners . . 137,133
law in England, and in the United States, as to the disposition
of partnership property in real estate, after dissolution of
the partnership by death of a partner . . . 127-130
a promise by one partner, after dissolution, to pay a debt of
the firm, which is barred by the statute of limitations, does
not bind the other partners, if notice of the dissolution has
been given .......•• 135-137
one partner may be bound individually by a contract made
by him in the name of the firm, but which does not bind
the other partners ........ 122
POSTHUMOUS CHILDREN,
law concerning them ....... 304, 305
POST OBHT CONTRACTS,
{See Unlawful Contracts.)
PRINCIPALS AND AGENTS,
(^ee Attorneys and other Agents.)
R.
RATIFICATION OF CONTRACTS,
of contracts made during infancy, after contracting party
comes of age 55 §' seq.
by principals, of contracts made by persons assuming, with-
out authority, to be their agents 112
by a firm, of contracts made by one of the partners without
previous authority ........ 124
RESTRAINT OF MARRIAGE,
{See Unlawful Contracts.)
RESTRAINT OF TRADE,
{See Unlawful Contracts.)
INDEX. 355
s.
PA6X
SALE OF PERSONAL PROPERTY,
{See Acceptance of Offer. Fraud. Unlawful Contracts.)
SEAMEN,
form of contracts which, by statutes of the United States,
masters of vessels are required to make with seamen 97, 102, 103
cases in which contracts with seamen have been held insuffi-
cient to bind them under those statutes . . . . 99 ^ seq.
courts of admiralty apply the principles of equity to seamen's
contracts, and jealously watch all deviations, in their con-
tracts, from these principles 100
in case of shipwreck, seamen are entitled, in the United
States, to full wages, if enough of freight and of the wreck
to pay such wages is saved by their exertions . . 102
of contracts by seamen, in fishing voyages, to take their wages
in the fish, or the proceeds of the fish that may be taken 103
SLAVES,
by former laws, had no power to make contracts, except con-
cerning their manumission ...... 96
SPENDTHRIFTS,
of their disability, under statutes in Massachusetts and New
Hampshire, to make contracts . . . . . . 95, 96
SUNDAY,
what contracts are void under statutes for the observance of
the Lord's Day 254-258
T.
TRESPASS,
when contracts, express or implied, to indemnify for an act of
trespass, are or are not valid 11-13
{See Contribution and Indemnity.)
u.
UNCONSCIONABLE CONTRACTS,
anomalous decisions concerning ..... 215, 238
UNLAWFUL CONTRACTS,
to wit, all contracts, whether simple or by specialty, which
contravene the principles of the common law, the provis-
ions of a statute, or the general policy of the law . . 221
356 INDEX.
Pace
UNLAWFUL CONTRACTS, Continued.
I. Those which violate the common law :
namely, contracts to do what is forbidden by the immutable
laws of God ... .... 222
or contra honos mores ........ 222
as contracts, between a man and woman, concerning their
future illicit cohabitation 222 §" sea.
and contracts, by any person, which he knows will encourage
prostitution 244, 245
cases in which a contract with the mother of a bastard child,
by the reputed father, are held to be valid . . . 223
contracts to do or to omit acts, or in consideration of doing or
omitting acts, the doing or omitting of which is punishable by
C7'iminal process. With examples 226-229
contrary to the policy of the law :
all contracts to procure, or endeavor to procure, an act of a
legislature, by any sinister means, or by personal influence
on individual members thereof ..... 230
marriage brokage contracts, and contracts in restraint of
marriage 230-232
post orbiit contracts ........ 238
contracts for maintenance of suits at law, and contracts which
involve champerty, embracery, and the buying of pre-
tended titles 228
contracts to pay seamen increased wages for extra work, and
to pay witnesses more than the legal fee for attendance at
court 239, 240
whether a contract to endeavor to procure pardon of a con-
vict is unlawful ........ 229
contracts in general restraint of trade .... 232
but contracts in partial restraint of trade are valid, if made
on a reasonable consideration ...... 232
even a sealed contract for partial restraint is void, if made
without actual consideration 232, 233
courts, however, do not inquire whether the consideration is
equal in value to the restraint agreed on ... 233
decisions as to the extent of territory over which, and the
time during which, such contracts are or are not lawful, in
different cases 234 §• seq.
a party may lawfully restrain himself, by contract, from using
a secret in his trade ....... 237
contracts to obstruct the course of justice, the execution of legal
process, or to indemnify officers against acts known by them
to be wrongful. With examples 241-245
INDEX. 357
Paqb
UNLAWFUL CONTRACTS, Continued.
11. Contracts which violate statute provisions :
when, if part only of a contract violates a statute, the remain-
ing part may be held valid and enforced .... 246-254
{See Consideration.)
an act, or a contract to do an act for the doing of which a
statute merely prescribes a penalty, without an express
prohibition, is now held to be void, as well as when the
statute expressly prohibits the act or a contract to do it 254, 259
what contracts made on the Lord's Day are or are not void,
under statutes prescribing its observance . . • 254-258
whether mere knowledge, by a seller of goods, that the buyer
intends to use them in violation of law, avoids the sale . 261, 270
the weight of authority in England is, that such mere knowl-
edge prevents the seller from recovering pay for the goods,
except in case of goods sold by him with mere knowledge
that the buyer intends to smuggle them . . . 260, 269
cases on the question how far contracts are unlawful and void,
which are subsequent and collateral to those which are un-
lawful, but of which the direct and immediate consideration
is not unlawful 116,262-269
contracts in fraud of bankrupt and insolvent acts . . 271
w.
WAGERS,
by the common law of England wagers concerning indifferent
matters were lawful, but are now made void by act of par-
liament -^^
this part of the common law is still in force in several of the
States of the Union, but not in New Hampshire nor in Mas-
sachusetts 2^^
but all wagers, if contrary to public policy, were void by the
common law ; as wagers on the question of war or peace,
the event of an election, the amount of any branch of rev-
enue, or on the life of a ibreign potentate whose country is
at war with that of either of the parties to the wager . 238, 239
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