The cases do not seem to be entirely reconcilable on the subject of donations of choses in action. A delivery of a note, as we have seen, was not good, because it was a mere chose in action; and yet, in Snellgrove v. Baily, (c) the gift of a bond causâ mortis was held good, and passed an equitable interest; and Lord Hardwicke afterwards, in the great case of Ward v. Turner, said he adhered to that decision; and the same kind of gift, as well as the gift of a promissory note causâ mortis, has been held in this country to be valid. The distinction made by Lord Hardwicke between bonds and bills of exchange, promissory notes and other choses in action, seems now to be exploded in this country, and they are all considered proper subjects of a valid donation causâ mortis as well as inter vivos. (d) 2

Church v. Miller, 17 Martin (Louis.) 101, it was held, that a legacy of so much money in a drawer, was only good for the sum found there at the death of the testator. (c) 3 Atk. 214.

(d) Wells v. Tucker, 3 Binney, 366. Borneman v. Sidlinger, 15 Maine, 429. Wright v. Wright, 1 Cowen, 598. Constant v. Schuyler, 1 Paige, 318. Parker v. Emerson, Sup. Court, (N. Y.) 1846. 4 Law Reporter for June, 1846. Brunson v. Brunson, Meigs (Tenn.) 630. Parish v. Stone, 14 Pick. 207. This last case overrules the one from Cowen, so far as it applies to the donor's own promissory note payable to the donee, and which cannot be the subject of a donatio causâ mortis. It has been a debatable

the thing, or of the means of getting possession, or, if it be a chose in action, of the instrument by which it may be reduced to possession. An after-acquired possession, or a previous and continuing possession, though by authority of the donor, is insufficient. Powell v. Hellicar, 26 Beavan, 261. Dole v. Lincoln, 31 Maine, 422. Huntington v. Gilmore, 14 Barb. (N. Y.) 243. Gough v. Tindon, 8 E. L. & Eq. 507. Contra, Moore v. Darton, 7 E. L. & Eq. 134. But possession does not prove delivery, where claimant had opportunities of wrongful acquisition. Kenney v. Public Administrator, 2 Bradf. (N. Y.) 319. The question of fact, whether a particular gift causâ mortis has been made or not, is examined with jealous carefulness. Westerlo v. Dewitt, 35 Barb. (N. Y.) 215.

2 In New York, after a most complete and elaborate discussion, it has been held, that the executory promise of a donor, i. e., his own draft upon a third party, not accepted, in favor of the donee, and intended as a donatio causâ mortis, is not valid as such, and no action can be maintained upon it against the representatives of the donor.

If the instrument executed by the donor would operate as an assignment or transfer of his funds in the hands of a third person, it might be good as a donatio causâ mortis. Harris v. Clark, 2 Barb. (N. Y.) 94. S. C. 3 Comst. 93. Wright v. Wright, cited in the note supra, is overruled. See, also, Flint v. Pattee, 33 N. Hamp. 520.

It has been held in Connecticut, that the promissory note of a third person, though not payable to bearer, nor so indorsed as to transfer the legal title by delivery merely, may be the subject of a donatio causâ mortis. Brown v. Brown, 18 Conn. 410; and see Craig v. Craig, 3 Barb. Ch. 78, 117, 118. Chase v. Redding, 13 Gray, 418. And in such a gift the wife may be the donee. Turpin v. Thompson, 2 Met. (Ky.) 420. See, also, Smith v. Kittridge, 21 Vermont, 238; Bouts v. Ellis, 21 E. L. & Eq. 337; Sessions v. Mosely, 4 Cush. 87; Waring v. Edmonds, 11 Md. 424.

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*By the admirable equity of the civil law, donations causâ mortis were not allowed to defeat the just claims of creditors; and they were void as against them even without a fraudulent intent. (a) It is equally the language of the modern civilians and of the English law, that donations cannot be sustained to the prejudice of existing creditors. (b) 1

question whether a bond and mortgage could pass by delivery as a donatio causâ mortis. In Duffield v. Elwes, 1 Sim. & Stu. 239, it was held that a mortgage could not be so given, and that the bond did not also pass. The reason assigned was, that it was not a gift completed, inasmuch as the mortgagor had a right to resist the payment of the bond without the reconveyance of the estate; and the donor of the bond was not to be compelled to complete his gift by such conveyance. But this case was afterwards reversed; and the delivery of the mortgage, as creating a trust by operation of law, was good as a donatio causâ mortis. 1 Bligh (N. S.) 497. This principle was also admitted in Hurst v. Beach, 5 Madd. Ch. 351, and a delivery of a bond and mortgage, as a donation mortis causâ, held valid. So also in Duffield v. Hicks, 1 Dow (N. S.) 1, bond and mortgage securities were held to be capable of a good delivery as a donatio causâ mortis. They raise a trust by operation of law, and the heir or executor is bound to give effect to the intent of the donor.2 These decisions are subject to the objection, that they go very much to impair the provision in the statute of frauds, which avoids parol grants and assignments in trust. The requisites of a valid donatio mortis causâ are well collected in a learned note to the case of Walter v. Hodge, 2 Swanst. 101, where it is stated and proved that it requires delivery of the property or the documentary evidence of it that it is revocable by the donor- that it is revoked by the death of the donee during his life—that it is subject to the claims of creditors, and that, on the death of the donor, the property vests absolutely in the donee, and no probate is required, and the wife may be that donee.

(a) Dig. 39, 6, 17.

(b) Voet, Com. ad Pand. 39, 5, sec. 20. Pothier, Traité des Donations entre Vifs, sec. 3, art. 1, sec. 2. Toullier, Droit Civil Français, tom. v. p. 733. Smith v. Casen, cited in 1 P. Wms. 406, note.

* Brinckerhoff v. Lawrence, 2 Sandf. Ch. 400.

1 Chase v. Redding, 13 Gray, 418.

LECTURE XXXIX.

OF CONTRACTS.

IN entering upon so extensive and so complicated a field of inquiry as that concerning contracts, we must necessarily confine our attention to a general outline of the subject; and endeavor to collect and arrange, in simple and perspicuous order, those great fundamental principles which govern the doctrine of contracts, and pervade them under all their modifications and variety. (a)

I. Of the parties thereto.

An executory contract is an agreement of two or more persons, upon sufficient consideration, to do, or not to do, a particular thing. (b) *The agreement is either under seal or not under seal. If under seal, it is denominated a specialty,

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(a) The latest and best Practical Treatise in the English law on the Law of Contracts not under Seal, is the one under that title by Mr. Chitty. A Treatise on the Law of Contracts, and Rights and Liabilities of Contracts, by G. G. Addison, of the Inner Temple, in two volumes, has since appeared, and is full and very comprehensive.1

The

(b) 2 Blacks. Com. 442. Plowd, 17, a. Com. Dig. tit. Agreement, A. 1. definition of a contract in the English Law is distinguished for neatness and precision. The definition in the Code Napoleon, No. 1101, is more diffuse. "A contract," says that code, "is an agreement by which one or more persons bind themselves to one or more others, to give, to do, or not to do some thing." This definition is essentially the same with that in Pothier, Traité des Oblig. No. 3. A contract, says C. J. Marshall, 4 Wheaton, 197, is an agreement in which a party undertakes to do, or not to do, a particular thing. An able writer on contracts, in the American Jurist (vol. xx.) for October, 1838, prefers this definition, which drops the word "consideration," to that of Blackstone. But as an agreement, valid in law, necessarily requires parties, a sufficient consideration, and an object, all these essential members of the definition ought to be stated, or the definition is imperfect. A sufficient consideration is in the purview of the

1 The work of Mr. Chitty has passed through ten American editions, and that of Mr. Addison, two. Since the author's death, Prof. Parsons, of Harvard University, has given to the world the ablest and most comprehensive treatise on the Law of Contracts which has yet appeared.

and if not under seal, an agreement by parol; and the latter includes equally verbal and written contracts not under seal. (a) The agreement conveys an interest either in possession or in action. If, for instance, one person sells and delivers goods to another for a price paid, the agreement is executed, and becomes complete and absolute; but if the vendor agrees to sell and deliver at a future time, and for a stipulated price, and the other party agrees to accept and pay, the contract is executory, and rests in action merely. There are also express and implied contracts. The former exists when the parties contract in express words, or by writing; and the latter are those contracts which the law raises or presumes, by reason of some value or service rendered, and because common justice requires it.

Every contract, valid in law, is made between parties having sufficient understanding, and age, and freedom of will, and of the exercise of it, for the given case. We have already considered how far infants and married women are competent to contract. The contracts of lunatics are generally void from the period at which the inquisition finds the lunacy to have commenced. (b)

English law essential to the legal obligation of a contract; and the only difference between simple contracts and specialties is, that in the latter the consideration is presumed, and so strongly that the oblitor is éstopped, by the solemnity of the instrument, from averring a want of consideration. See infra, p. 464, note. In the Partidas, part 5, tit. 11, law 1, a promise is defined to be "a verbal agreement, mutually entered into between men, with an intention to obligate themselves, the one to the other, to give or to do a certain thing agreed upon." "2 See the translation of the Partidas on Contracts and Sales, by Messrs. Moreau & Carlton, New Orleans, 1820. The Partidas is the principal code of the Spanish laws, compiled in Spain, under the reign of Alphonso the Wise, in the middle of the thirteenth century; and it is declared by the translators to excel every other body of law in simplicity of style and clearness of expression. It is essentially an abridgment of the civil law; and it appears to be a code of legal principles, which is at once plain, simple, concise, just, and unostentatious to an eminent degree.

(a) Rann v. Hughes, 7 Term Rep. 350, note. Ballard v. Walker, 3 Johns. Cas. 60. (b) Attorney General v. Parkhurst, 1 Ch. Cas. 112.

No action will lie on a covenant by C. to pay a sum of money to A., B., and C., or the survivors or survivor of them, on their joint account. Faulkner v. Lowe, 2 Wels., H. & Gor. 595.

1 A less degree of intellect will suffice to make a will than to make a contract, yet something more is required than mere passive memory. Converse v. Converse, 21 Vermont, 168. See Warring v. Warring, 12 Jurist, 1848, p. 947, for an interesting discussion of the nature and degrees of insanity. Lord Brougham thinks that it is erroneous to suppose that a mind established to be partially insane, can be really sound on any subject.

But the inquisition is not conclusive evidence of the fact; and the party affected by the allegation of lunacy may gainsay it by proof, without first traversing the inquisition. (c) 2 In the case of Baxter v. The Earl of Portsmouth, the K. B. went quite far towards annihilating the plea of lunacy in the case of fair * dealing; for they held that the inquisition of lunacy was * 451 not admitted to form any defence, on the ground that the goods furnished by the tradesman were suitable to the condition of the defendant, and that he had no reason to suppose that the defendant was a lunatic. (a) So, in Niell v. Morley, (b) the master of the rolls held, that a court of equity would not interfere to set aside a contract overreached by an inquisition of lunacy, if it was fair, and made without, notice of the derangement. (c) 1

The general rule is, that sanity is to be presumed until the contrary be proved; and, therefore, by the common law, a deed made by a person non compos is voidable only, and not void;2 and when an act is sought to be avoided, on the ground of mental imbecility, the proof of the fact lies upon the person who alleges it.3 On the other hand, if a general mental derangement be once estab

(c) Sergeson v. Sealey, 2 Atk. 412. Faulder v. Silk, 3 Campb. (N. P.) 126. Baxter v. Earl of Portsmouth, 5 Barn. & Cress. 170. S. C. 7 Dow. & Ryland, 614. 2 Carr. & Pa. 178. Den v. Clark, 5 Halst. 217.

(a) See, also, to S. P., Brown v. Jodrell, 3 Carr. & Pa. 30.

(b) 9 Vesey, 478.

(c) The English Act of August 4, 1845, contains judicious and humane provisions, relative to the care and treatment of lunatics.

See Keys v. Norris, 6 Rich. Eq. 388.

1 A fair and bonâ fide executed contract, made with a lunatic apparently of sound mind, and not known to be otherwise, and of which he has taken the benefit, if the parties cannot be placed in statu quo, cannot be set aside by him or his representatives. Moulton v. Camroux, 2 Exch. 487. S. C. 4 Exch. 17. And see Price v. Berrington, 7 Eng. L. & Eq. 254; Beavan v. McDonnell, 24 Eng. L. & Eq. 484. But neither money advanced nor compensation for services can be recovered against a lunatic, if the circumstances were such as to put the party on inquiry as to his mental condition by the reasonable pursuit of which his unsoundness of mind might have been ascertained. Lincoln v. Buckmaster, 32 Vermont, 652. The wife of a lunatic may pledge his credit for necessaries. Read v. Legard, 4 Eng. L. & Eq. 523. A lunatic might be arrested, at common law, in a civil suit. Bush v. Pettibone, 4 Comst. 300. Person v. Warren, 14 Barb. (N. Y.) 488. After inquest and the appointment of a committee, all contracts by the lunatic are absolutely void. Fitzhugh v. Wilcox, 12 Barb. (N. Y.) 235. Wadsworth v. Sherman, 14 Ibid. 199.

2 Chew v. Bank of Baltimore, 14 Md. 299.

3 Ingraham v. Baldwin, 5 Seld. (N. Y.) 45.