flock of sheep, and puts him in possession of them directly, it is then a gift executed in the donee; (7) and it is not in the donor's power to retract it, though he did it without any consideration or recompense: (c) (8) unless it be prejudicial to creditors; or the donor were under any legal incapacity, as infancy, coverture, duress, or the like; or if he were drawn in, circumvented, or imposed upon, by false pretences, ebriety, or surprise. But if the gift does not take effect, by delivery of immediate possession, it is then not properly a gift, but a contract; *and this a man cannot be com[*442 pelled to perform but upon good and sufficient consideration; (9) as we shall see under our next division. IX. A contract, which usually conveys an interest merely in action, is thus defined:-"an agreement, upon sufficient consideration, to do or not to do a particular thing."(10) From which definition there arise three points to be (c) Jenk. 109. And now, by the statute 17 & 18 Vict. c. 36, s. 1, bills of sale, which is the usual denomnation of a grant of chattels personal, must be filed with the clerk of docquets and judgments in the court of Queen's Bench within twenty-one days after the making or giving them; otherwise any such grant will, as against assignees in bankruptcy or insolvency, or creditors, be null and void.-KERR. The leading case on the construction of 13 Eliz. c. 5 is Twyne's case, (3 Rep. 81,) in which it was decided that if the grantor be allowed to retain the possession it is a badge of fraud. In the army of cases which have followed this leader, both in England and this country, there is in many respects great discordance, especially upon the important question whether the retention of possession be per se and in law fraudulent, or whether it be only an evidence of fraud to be submitted to the jury. In Edwards v. Harben, (2 T. R. 587,) the court of King's Bench laid down the principle emphatically, that if the vendee took an absolute bill of sale to take effect immediately by the face of it, and agreed to leave the goods in the possession of the vendor for a limited time, such an absolute conveyance, without the possession, was such a circumstance per se as made the transaction fraudulent in point of law. It was admitted, however, that if the want of immediate possession be consistent with the deed, as it was in Bucknal v. Roiston (Prec. in Ch. 285) and Cadogan v. Kennet, (Cowp. 432,) and as it is if the deed be conditional and the vendee is not to have possession until he has performed the condition, the sale was not fraudulent, for then possession accompanied and followed the deed within the meaning of the rule. 2 Kent's Com. 518. Chancellor Kent admits, however, that under subsequent English decisions it has become difficult to determine when the circumstance of possession not accompanying and following the deed is per se a fraud in the English law, or only presumptive evidence of fraud resting upon the facts to be disclosed at the trial. I subjoin a few leading American cases on this subject on both sides of the question. Holding that retention of possession is a fraud per se are_Hamilton v. Russell, I Cranch, 309. Clayton v. Anthony, 6 Rand. 285. Laughlin v. Ferguson, 6 Dana, 117. Sibley v. Hood, 3 Missouri, 290. Newland v. Dews, R. M. Charlt. 386. Babb v. Clemson, 10 S. & R. 419. Thornton v. Davenport, 1 Seamm. 296. Contra, that it is evidence of fraud for the jury, are Smith v. Henry, 2 Bailey, S. C. Rep. 118. Muncy v. Killough, 7 Yerger, 440. Bissell v. Hopkins, 3 Cowen, 166.-SHARSWOOD. (7) Williams on Pers. Prop. (4 ed.) 35 (1872). (8) Dartmouth College v. Woodward, 4 Wheat. 683 (1819). Brantley's Pers. Prop. ? 198 (1890). Anderson v. Baker, 1 Killey (Ga.) 598 (1846). Bells v. Francis, 1 Vroom (N. J.) 155 (1862) Noble v. Smith and others, 2 Johnson (N. Y.) Rep. 55 (1886). Nicholas v. Adams, 2 Wharton (Pa.) 25 (1837). 2 Schouler's Pers. Prop. vol. 2, pp. 70, 97, 2 ed. p. 100. Grammar School v. Bailey and wife, 62 Vt. 477 (1890). McEwen Adm'r v. Lewis et al., 88 Va. 89 (Hansborough, 1892). (9) Cochrane v. Moore, 25 L. R. Q. B. Div. 57–72 (1890). Allen v. Cowan, 28 Barbour's (N. Y.) Rep. 101 (1858). Crawford v. Manufacturing Co., 88 N. C. 559 (1883). Turner v. Brown, 6 Hun.'s (N. Y.) Rep. 334 (1876). Miller v. La Piere, 136 Mass. 22 (1883). Hillebrant v. Brewer, 6 Texas Rep. 49 (1853). Powell v. Leonard, 9 Fla. 361 (1861). Hunter v. Hunter, 19 Barb. (N. Y.) 639 (1855). (10) Jernigan et al. v. Wimberly, 1 Kelly (Ga.) 221 (1846). Addison on Contracts (8 ed.) vol. I, p. 2, n. I. Pollock on Contracts (4 ed.) 636 (1888). Sch. Pers. Prop. (2 ed.) 57 (1884). Williams on Pers. Prop. (4 ed.) 71 (1872). I Parson's on Contracts, 6 (1873). Bateman on Commercial Law, 17. This is a very meagre definition for not every agreement, upon sufficient consideration, to do or not to do a particular thing" is a contract, at least a valid contract, inasmuch as the "particular thing" might be contemplated in all contracts: 1. The agreement; 2. The consideration; and 3. The thing to be done or omitted, or the different species of contracts. First then it is an agreement, a mutual bargain or convention; and therefore there must at least be two contracting parties of sufficient ability to make a contract; as where A. contracts with B. to pay him 100l. and thereby transfers a property in such sum to B.(11) Which property is, however, not in possession, but in action merely; (12) and recoverable by suit at law; (13) wherefore it could not be transferred to another person by the strict rules of the ancient common law; for no chose in action could be assigned or granted over, (d)(14) because it was thought to be a great encouragement to litigiousness if a man were allowed to make over to a stranger his right of going to law. But this nicety is now disregarded:(15) though, in compliance with the ancient principle, the form of assigning a chose in action is in the nature of a declaration of trust, and an agreement to permit the assignee to make use of the name of the assignor, in order to recover the possession. And therefore, when in common acceptation a debt or bond is said to be assigned over, it must still be sued in the original creditor's name; the person to whom it is transferred being rather an attorney than an assignee. (16) But the king is an exception to this general rule, for he might always either grant or receive a chose in action by assignment: (e) (17) and our courts of equity, considering that in a commercial country almost all personal property must necessarily lie in contract, will protect the assignment of a chose in action as much as the law will that of a chose in possession. (ƒ)(18) *443] *This contract or agreement may be either express or implied. Express contracts are where the terms of the agreement are openly (f) 3 P. Wms. 199. (d) Co. Litt. 214. unlawful, or the parties incompetent. The following is submitted as a more comprehensive definition. A contract is an agreement between two or more competent persons, touching a lawful subject-matter, for a valuable consideration. (11) Browne's View of the Civil Law, vol. i. 346. Rogers v. Phillips and wife, 8 English's (Ark.) Rep. 367 (1848). (12) I. e., it is not property in a strict sense: there is a res, but not a dominus, Vermögen, but not Eigenthum, and the promisee's title to the performance of the promise or contract contains no element analogous to ownership. Webb's Pollock on Torts, enlarged Am. ed. 668 (n.) (1894). (13) Carrington v. Eastman, 1 Pinney (Wis.) 657 (1846). Edwards on Bills, Notes, etc. 16 (1882). (14) Story on Prom. Notes, 225, 7 ed. (1878). Story's Bills of Exchange, 182, 4 ed. (1860). (15) Carrington v. Eastman, 1 Pinney (Wis.) 657 (1846). (16) Story's Bills of Exchange, 4 ed. 19 (1860). Goodeve's Mod. Law of Real Prop. 93. Hampton v. Owens, 55 Md. 586 (1880). Brush Electric Co. v. California Electric Light Co. 52 Fed. Rep. 960 (1892). In several of the American states, the assignee of a bond or other money contract, is enabled, by statute, to sue in his own name. But in the absence of any statute, the rule of the common law generally prevails. 2 Greenleaf's Cruise on Real Prop. 428, 2 ed. (1856, n. 1). (17) No valid objection is perceived against giving the same effect to an assignment to the government of this country. McLean, J., in United States v. Buford, 3 Pet. 12 (1830). (18) To this rule of the common law there are several exceptions. Bills of exchangi by the law-merchant may be transferred by endorsement and sued on by the assignee, who is then called the endorsee; and the statute 3 & 4 Anne, c. 9 places promissory notes on the same footing. This statute was passed in consequence of the refusal of lord Holt (in Clesh v. Martin, 2 Ld. Raym. 757) to yield to the custom which had sprung up among merchants of treating promissory notes as negotiable in the same way as bills of exchange. His lordship treated the attempt of the merchants with great indignation, saying "that it proceeded from the opinionativeness of the merchants, who were endeavoring to set the law of Lombard Street against the law of Westminster Hall." Drafts on bankers are equally negotiable. Bills of lading constitute a fourth exception. These are transferred by endorsement; and not only is the property in the goods thereby passed to the endorsee, but also all rights of suit, and all the liabilities of the original contractors, the shipper uttered and avowed at the time of the making, as to deliver an ox, or ten loads of timber, or to pay a stated price for certain gocds. Implied are such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform. (19) As, if I employ a person to do any business for me, or perform any work; the law implies that I undertook, or contracted, to pay him as much as his labor deserves. If I take up wares from a tradesman, without any agreement of price, the law concludes that I contracted to pay their real value.(20) And there is also one species of implied contracts, which runs through and is annexed to all other contracts, conditions, and covenants, viz., that if I fail in my part of the agreement, I shall pay the other party such damages as he has sustained by such my neglect or refusal. (21) In short almost all the rights of personal property (when not in actual possession) do in great measure depend upon contracts, of one kind or other, or at least might be reduced under some of them: which indeed is the method taken by the civil law; it having referred the greatest part of the duties and rights, which it treats of, to the head of obligations ex contractu (22) and quasi ex contractu.(g)(23) A contract may also be either executed, as if A. agrees to change horses with B., and they do it immediately; in which case the possession and the right are transferred together: or it may be executory, as if they agree to change next week here; the right only vests, and their reciprocal property in each other's horse is not in possession but in action; for a contract executed (which differs nothing from a grant) conveys a chose in possession; a contract executory conveys only a chose in action. (24) Having thus shown the general nature of a contract, we are, secondly, to proceed to the consideration upon which it is founded; or the reason which moves the contracting party to *enter into the contract. "It [*444 is an agreement, upon sufficient consideration." The civilians hold, that in all contracts, either express or implied, there must be something given in exchange, something that is mutual or reciprocal. (h) This thing, which is the price or motive of the contract, we call the consideration: and it must be a thing lawful in itself, or else the contract is void. (25) A good innominatis, permutatio continetur. Gravin. l. 2, ¿ 12. (g) Inst. 3, 14, 2. (h) In omnibus contractibus, sive nominatis, sive and the ship-owner. 18 & 19 Vict. c. 111.-KERR. Policies of life assurance, either by indorsement or by assignment by a separate instrument, written notice being given to the company; policies of marine assurance by endorsement, railway and East India bonds and stocks, shares, mortgages and other debentures according to the provisions of the respective acts of parliament by which they are created or regulated, have been also made legally assignable. See May on Fraudulent Conveyance, 418. Text Book Series (1887), and statutes and cases there cited. See also Broom's Parties to Actions, 11-19. Browne on Actions of Law, 209. 2 Greenleaf's Cruise on Real Prop. (2 ed.) 429. 2 Comyn on Contracts, 566. (19) Indeed an implied contract only differs from an express contract in the mode of proof; both equally proceed upon the mutual agreement of the parties, and cannot exist without it. See Bateman on Com. Law, 18. Barbour's Parties to Actions, 2 ed. 176. O'Brien v. Young, 95 N. Y. (Sickles) 431 (1884). Hamilton v. Winterrowd et al. 43 Ind. 396 (1873). Forbes v. Williams, 15 Ill. Ct. App. (Brad.) 308 (1884). (20) That is, their market value at the time. Story on Sales, 229 (1871). See also Chitty on Contracts, (12 ed.) 53 (1890). Benjamin on Sales, 2 ed. 32. Anson on Contracts, 2 Am. ed. (Knowl.) II (1887). I Comyn on Contracts, 5. (21) Bateman on Com. Law, 14. Bush v. Canfield, 2 Conn. (Day) 485–90 (1818). (22) [Arising from a contract.] (23) [From something in the nature of a contract.] (24) Roberts v. Beatty, 2 P. & R. (Pa.) Rep. 67 (1832). McDonald v. Hewett, 15 Johnson (N. Y.) Rep. 351 (1818). Ballard v. Burgett, 47 Barbour's (N. Y.) Rep. 650 (1866). Watson on Partnership, 82 (1807.) I Comyn. on Contracts, 3. (25) Ga. Penitentiary Co., No. 2, et al. v. Nelms Princ. Keeper, 65 Ga. 505. Jackson Lumpkin, (1880). Lang v. Johnson, 24 N. H. (IV. Foster) 307 (1851). ́ Bateman on Commercial Law, 32. consideration we have before seen, (i) is that of blood or natural affection between near relations; the satisfaction accruing from which the law esteems an equivalent for whatever benefit may move from one relation to another. (j) This consideration may sometimes, however, be set aside, and the contract become void, when it tends in its consequences to defraud creditors, or other third persons, of their just rights. But a contract for any valuable consideration, as for marriage, for money, for work done, or for other reciprocal contracts, can never be impeached at law;(26) and, if it be of a sufficient adequate value, is never set aside in equity; for the person contracted with has then given an equivalent to recompense, and is therefore as much an owner, or a creditor, as any other person. (27) (26) Bateman on Commercial Law, 33. (27) White v. Camp, 1 Branch (Fla.) 106 (1846). Storm v. United States, 94 U. S. Rep. (S. C.) 84 (1876). I Comyn on Contracts, 8. i Parsons on Contracts (6 ed.) 451 (1873). 2 Sch. Pers. Prop. (2 ed.) 59. If there be no fraud in the transaction, mere inadequacy of price would not be deemed, even in equity, sufficient to vacate a contract. IO Ves. 292, 295. 1 Brid. Eq. D. 359. Nor is mere folly without fraud a foundation for relief. 8 Price, 620. And on the question of executing an agreement, hardship cannot be regarded, unless it amount to a degree of inconvenience and absurdity so great as to afford judicial proof that such could not be the meaning of the parties. I Swanst. 329. But if there be such an inadequacy as to show that the person did not understand the bargain he made, or that, knowing it, he was so oppressed that he was glad to make it, this will show such a command over the grantor as may amount to fraud. 2 Bro. C. C. 167. 2 Bird. Eq. Dig. 55. An action was brought on an agreement to pay for a horse a barley-corn a nail for every nail in the horse's shoes, and double every nail, which came to five hundred quarters of barley; and, on a trial before Holt, C. J., the jury gave only the value of the horse, (I Lev. 111;) and in an action of assumpsit, in consideration of 2s. 6d. paid and 4/. 175. 6d. to be paid, the defendant undertook to deliver two rye-corns next Monday, and double every succeeding Monday, for a year, which would have required the delivery of more rye than was grown in all the world, on demurrer, Powell, J., said, that though the contract was a foolish one, yet it would hold in law, and the defendant ought to pay something for his folly: and the defendant refunded the 2s. 6d. and costs. 2 Ld. Raym. 1164. This seems to have been a vacating of the bargain as void, and a return for that reason of the money received without consideration. See, further, 3 Chitty's Com. L. 158, 159. Bridgm. index, tit. Inadequacy of Price or Consideration.-CHITTY. In bonds, covenants, and instruments under seal, a consideration between the parties is implied conclusively. The seal imports it. A voluntary bond is both at law and in equity a gift of the money. Such a bond must be postponed until creditors are paid: it is fraudulent and void as to them, but it is always good against the party himself, and against heirs, legatees, and others who stand in no higher equity. Sherk v. Endress, 3 Watts & Serg. 255. Candor & Henderson's Appeal, 3 Casey, 119. Bills of exchange and promissory-notes primâ facie import consideration. As between the original parties to these instruments, they may be rendered ineffectual by proving want of consideration; though as to an endorsee or holder bona fide in the usual course of business this is unavailing. In an ordinary parol contract, whether oral or written, the consideration must be averred in the plaintiff's declaration, and must either appear on its face, or be shown affirmatively by him who seeks to recover on it. A consideration may be briefly defined to be any benefit, delay, or loss to either party. More fully, a consideration is something that is either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made. Any damage or suspension or forbearance of a right will be sufficient to sustain a promise. It is not essential that the consideration should be adequate in point of actual value. The law does not weigh the quantum of consideration, having no means of deciding upon that matter; and it would be unwise to interfere with the facility of contracting and the free exercise of the judgment and will of the parties. The law allows them to be the sole judges of the benefits to be derived from their bargain, provided there be no incompetency to contract, and the agreement violates no rule of law. There is no case where mere inadequacy of price, independent of other circumstances, has been held sufficient to set aside a contract between parties standing on equal ground and dealing with each other without any imposition or oppression. Such an inequality as would amount to fraud, and avoid the contract on that score, must be so strong and manifest as to shock [*445 These valuable considerations are divided by the civilians (k) into four species. 1. Do, ut des:(28) as when I give money or goods, on a contract that I shall be repaid money or goods for them again. Of this kind are all loans of money upon bond, or promise of repayment; and all sales of goods, in which there is either an express contract to pay so much for them, or else the law implies a contract to pay so much as they are worth. 2. The second species is, facio, ut facias;(29) as, when I agree with a man to do his work for him if he will do mine for me, or if two persons agree to marry together; or to do any positive acts on both sides. Or, it may be to forbear on one side on consideration of something done on the other, as that in consideration A., the tenant, will repair his house, B., the landlord, will not sue him for waste. Or, it may be for mutual forbearance on both sides; *as, that in consideration that A. will not trade to Lisbon, B. will not trade to Marseilles; so as to avoid interfering with each other. 3. The third species of consideration is facio, ut des; (30) when a man agrees to perform anything for a price, either specifically mentioned, or left to the determination of the law to set a value to it. As when a servant hires himself to his master for certain wages or an agreed sum of money: here the servant contracts to do his master's service, in order to earn that specific sum. Otherwise, if he be hired generally; for then he is under an implied contract to perform this service for what it shall be reasonably worth. 4. The fourth species is, do, ut facias: (31) which is the direct counterpart of the preceding. As when I agree with a servant to give him such wages upon his performing such work: which, we see, is nothing else but the last species inverted: for servus facit, ut heras det, (32) and herus dat, et servus faciat.(33) A consideration of some sort or other is so absolutely necessary to the forming of a contract, that a nudum pactum, or agreement to do or pay any thing on one side, without any compensation on the other, is totally void in law; and a man cannot be compelled to perform it. (7)(34) As if one man (k) Ff. 19, 5, 5. (1) Dr. and Stu. D. 2, c. 24. the conscience and confound the judgment of common sense. Hind v. Holdship, 2 Watts, 104. Silvis v. Ely, 3 Watts & Serg. 428. This legal principle as to the extent of consideration is in some measure practically modified by an equitable one, which relieves the parties to a contract in equity wherever the consideration of it fails; as where a contract was made upon the expectation of an actual benefit which has not been realized, and that without the fault of the party seeking relief. Bellas v. Hays, 5 Serg. & R. 427. Miles v. Stevens, 3 Barr, 21.-SHARSWOOD. (28) [I give, that you may give.] (29) [I do, that you may do.] 30) I do, that you may give. (31) [I give, that you may do.] (32) The servant performs, that the heir may give.] (33) [The heir gives, that the servant may perform.] See Chitty on Contracts (12 ed.) 21 (1890). Waits Actions and Defences, vol. 1, 91 (1877). I Story on Contracts (5 ed.) 503. Edwards on Bailments (3 ed.) 30. Bateman on Com. Law, 34, 36, 377. The fundamental distinction in the common law is between those cases where the consideration is a benefit to him who makes the promise, and those in which it is an injury to him who receives the promise. I Parson's on Contracts (6 ed.) 451 (1873). (34) This must be read as confined to simple contracts; for no consideration is essential to the validity of a contract under seal, though in some cases creditors may treat voluntary deeds without consideration, as fraudulent and invalid. 7 T. R. 477. 4 East, 200. 2 Sch. & Lef. 228. Fonbl. Treat. Eq. (2 ed.) 347, n. f. Plowd. 308, 309. i Cord's Rights of Married Women (2 ed.) 225. Calkins v. Long, 22 Barb. (N. Y.) 99 (1855). Livingstone v. Tremple, 4 Johns. (N. Y.) 417 (1809). The leading rule with respect to consideration is that it must be some benefit to the party by whom the promise is made, or to a third person at his instance, or some detriment sustained, at the instance of the party promising, by the party in whose favor the promise is made. 4 East, 455. I Taunt. 523. A compromise of a doubtful right is a sufficient foundation for a contract. Pruett v. Chaflin, 4 N. C. (Hawks) 181 (1825). A written agreement, not under seal, is nudum |