are all debts and choses in action; as if a man gives bond for 201., or agrees to buy a horse at a stated sum, or takes up goods of a tradesman upon an implied contract to pay as much as they are reasonably worth: in all these cases the right accrues to the creditor, and is completely vested in him, at the time of the bond being sealed, or the contract or agreement made; and the law only gives him a remedy to recover the possession of that right, which already in justice [*437] belongs to him. But there is also a species of property to which a man has not any claim or title whatsoever, till after suit commenced and judgment obtained in a court of law: where the right and the remedy do not follow each other, as in common cases, but accrue at one and the same time: and where, before judgment had, no man can say that he has any absolute property, either in possession or in action. Of this nature are,

1. Such penalties as are given by particular statutes, to be recovered on an action popular; or, in other words, to be recovered by him or them that will sue for the same. Such as the penalty of 500l., which those persons are by several acts of parliament made liable to forfeit, that, being in particular offices or situations in life, neglect to take the oaths to the government: which penalty is given to him or them that will sue for the same. Now here it is clear that no particular person, A or B, has any right, claim or demand, in or upon this penal sum, till after action brought; (a) for he that brings his action, and can bona fide obtain judgment first, will undoubtedly secure a title to it, in exclusion of everybody else. He obtains an inchoate imperfect degree of property, by commencing his suit: but it is not consummated till judgment; for, if any collusion appears, he loses the priority he had gained. (b) But, otherwise, the right so attaches in the first informer, that the king (who before action brought may grant a pardon which shall be a bar to all the world) cannot after suit commenced remit anything but his own part of the penalty. (c) For by commencing the suit the informer has made the popular action his own private action, and it is not in the power of the crown, or of any thing but parliament, to release the informer's interest. This, therefore, is one instance, where a suit and [ *438] judgment at law are *not only the means of recovering, but also of acquiring, property. And what is said of this one penalty is equally true of all others, that are given thus at large to a common informer, or to any person that will sue for the same. They are placed, as it were, in a state of nature, accessible by all the king's subjects, but the acquired right of none of them; open therefore to the first occupant, who declares his intention to possess them by bringing his action; and who carries that intention into execution, by obtaining judgment to recover them. (8)

2. Another species of property, that is acquired and lost by suit and judgment at law, is that of damages given to a man by a jury, as a compensation and satisfaction for some injury sustained; as for a battery, for imprisonment, for slander or for trespass. Here the plaintiff has no certain demand till after verdict; but, when the jury has assessed his damages, and judgment is given thereupon, whether they amount to twenty pounds or twenty shillings, he instantly acquires, and the defendant loses at the same time, a right to that specific sum. It is true, that this is not an acquisition so perfectly original as in the former instance: for here the injured party has unquestionably a vague and indeterminate right to some damages or other the instant he receives the injury; and the verdict of the jurors, and judgment of the court thereupon, do not in this case so properly vest a new title in him, as fix and ascertain the old one; they do not give, but define, the right. But, however, though strictly speaking, the primary right to a satisfaction for injuries is given by the law of nature, and the suit is only the means of ascertaining and recovering that

(a) 2 Lev. 141. Stra. 1169. Combe v. Pitt. B. R. Tr. 3 Geo. III. (b) Stat. 4 Hen. VII, c. 20.

(c) Cro. Eliz. 138. 11 Rep. 65.

(8) The right to a penalty given by statute may at any time before recovery be taken away by statute. Oriental Bank v. Freeze, 6 Shep. 109; Confiscation Cases, 7 Wal. 454.

satisfaction; yet, as the legal proceedings are the only visible means of this acquisition of property, we may fairly enough rank such damages, or satisfaction assessed, under the head of property acquired by suit and judgment at law.

*3. Hither also may be referred, upon the same principle, all title to costs and expenses of suit; which are often arbitrary, and rest entirely [*439] on the determination of the court, upon weighing all circumstances, both as to the quantum, and also (in the courts of equity especially, and upon motions in the courts of law,) whether there shall be any costs at all. These costs, therefore, when given by the court to either party may be looked upon as an acquisition made by the judgment of law.

CHAPTER XXX.

OF TITLE BY GIFT, GRANT AND CONTRACT.

WE are now to proceed, according to the order marked out, to the discussion of two of the remaining methods of acquiring a title to property in things personal, which are much connected together, and answer in some measure to the conveyances of real estates; being those by gift or grant, and by contract: whereof the former vests a property in possession, the latter a property in action.

VIII. Gifts then, or grants, which are the eighth method of transferring personal property, are thus to be distinguished from each other, that gifts are always gratuitous, grants are upon some consideration or equivalent; and they may be divided, with regard to their subject-matter, into gifts or grants of chattels real, and gifts or grants of chattels personal. Under the head of gifts or grants of chattels real, may be included all leases for years of land, assignments, and surrenders of those leases; and all the other methods of conveying an estate less than freehold, which were considered in the twentieth chapter of the present book, and therefore need not be here again repeated: though these very seldom carry the outward appearance of a gift, however freely bestowed; being usually expressed to be made in consideration of blood, or natural affection, or of five or ten shillings nominally paid to the grantor; and, in case of leases, always reserving a rent, though it be but a pepper corn: any of which considerations will, in the eye of the law, convert the gift, if executed, into a grant; if not executed, into a contract.

*Grants or gifts, of chattels personal, (1) are the act of transferring [441] the right and the possession of them; whereby one man renounces, and

(1) A gift or grant of personal property may be by parol. 3 M. and S. 7. But when an assignment is for a valuable consideration, it is usually in writing; and when confined merely to personalty, is termed a bill of sale. An assignment, or covenant, does not pass afteracquired personal property: 5 Taunt. 212; but where there has been a subsequent change of new for old articles, and the assignment is afterwards set aside, it will in general be left to a jury to say, whether the new were not substituted for the old. In general there should be an immediate change of possession, or the assignment made notorious, or creditors, who were ignorant of the transfer, may treat it as fraudulent and void, on the ground that the grantor was, by his continuance of possession, enabled to gain a false credit. Twyne's Case, 3 Co. 81, see cases, Tidd. Prac. 8th ed. 1043, 1044; 1 Campb. 333, 334; 5 Taunt. 212. As to the notoriety of the sale, 2 B. and P. 59; 8 Taunt. 838; 1 B. Moore, 189. If possession be taken at any time before an adverse execution, though long after the date of the deed, it seems it will be valid. 15 East, 21. An assignment to a creditor of all a party's effects, in trust for himself and other creditors, is valid. 3 M. and S. 517. And as a debtor may prefer one creditor to another, he may, on the eve of an execution of one creditor, assign his property to another, so as to satisfy the latter, and leave the other unpaid. 5 T. R. 235. But an assignment made by way of sale, to a person not a creditor, in order to defeat an execution, will, if

another man immediately acquires, all title and interest therein, which may be done either in writing, or by word of mouth, (a) attested by sufficient evidence, of which the delivery of possession is the strongest and most essential. But this conveyance, when merely voluntary, is somewhat suspicious; and is usually construed to be fraudulent, if creditors or others become sufferers thereby. And, particularly, by statute 3 Hen. VII, c. 4, all deeds of gifts of goods, made in trust to the use of the donor, shall be void: because otherwise persons might be tempted to commit treason or felony, without danger of forfeiture; and the creditors of the donor might also be defrauded of their rights. And by statute 13 Eliz. c. 5, every grant or gift of chattels, as well as lands, with an intent to defraud creditors or others, (b) shall be void as against such persons to whom such fraud would be prejudicial; but, as against the grantor himself, shall stand good and effectual; and all persons partakers in, or privy to, such fraudulent grants, shall forfeit the whole value of the goods, one moiety to the king, and another, moiety to the party grieved; and also on conviction shall suffer imprisoment for half a year.

A true and proper gift or grant is always accompanied with delivery of possession, and takes effect immediately, (2) as if A gives to B 100l., or a flock of sheep, and puts him in possession of them directly, it is then a gift executed in the donee; and it is not in the donor's power to retract it, though he did it without any consideration or recompense: (c) 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 compelled to perform, but upon good and [*442 ] sufficient consideration; 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." From which definition there arise three points to be contemplated in all contracts; 1. The agreement; 2. The consideration; and 3. The thing to be done or omitted, or the different species of contracts.

First then it is an agreement, a mutual bargain or convention; and therefore there must at least be two contracting parties, of sufficient ability to make a contract; as where A contracts with B to pay him 100l. and thereby transfers a property in such sum to B. Which property is however not in possession, but in action merely, and recoverable by suit at law; wherefore it could not be transferred to another person by the strict rules of the ancient common law; for no chose in action could be assigned or granted over, (d) because it was thought to be a great encouragement to litigiousness, if a man were allowed to make over to a stranger his right of going to law. But this nicety is now disregarded: though in compliance with the ancient principle, the form of assigning a chose in action is in the nature of a declaration of trust, and an agree

(a) Perk. § 57.

(b) See 3 Rep. 82.

(c) Jenk. 109.

(d) Co. Litt. 214.

the purchaser knew that intention, be void, although he paid a full price for the goods. 1 East, 51; 1 Burr. 474.] See Burrill on Assignments, passim.

That gifts prejudicial to existing creditors are void, see 1 Pars, on Cont. 5th ed. 235. They may also be void as to subsequent creditors if made under actual or expected insolvency, or with fraudulent intent as to such subsequent creditors. Id.

(2) Delivery is essential to a gift. Noble v. Smith, 2 Johns. 52; Withers v. Weaver, 10 Penn. St. 391; Sims v. Sims, 2 Ala. 117; Carpenter v. Dodge, 20 Vt. 595. It has been held, however, that if the gift be evidenced by writing it is sufficient without delivery. Cranz v. Kroger, 22 Ill. 74. But this may be questionable. But a constructive delivery is sufficient when an actual delivery is impracticable. Williams on Pers. Prop. 34.

[And now by the statute 17 and 18 Vic. c. 36, s. 1, bills of sale, which is the actual denomination of a grant of chattels personal, must be filed with the clerk of docquets and judg ments 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.]

ment 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. (3) But the king is an exception to this general rule, for he might always either grant or receive a chose in action by assignment: (e) and our courts of equity, considering that in a commercial country almost all personal property must necessarily lie in contract, will protect the assignment of a chose in action, as the law will that of a chose in possession. (ƒ)

*This contract or agreement may be either express or implied. Express contracts are where the terms of the agreement are openly uttered [*443]

and avowed at the time of the making, as to deliver an ox, or ten loads of timber, or to pay a stated price for certain goods. Implied, are such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform. As, if I employ a person to do any business for me, or perform any work; the law implies that I undertook, or contracted, to pay him as much as his labour deserves. If I take up wares from a tradesman, without any agreement of price, the law concludes that I contracted to pay their real value. And there is also one species of implied contracts, which runs through and is annexed to all other contracts, conditions, and covenants, viz: that if I fail in my part of the agreement, I shall pay the other party such damages as he has sustained by such my neglect or refusal. In short, almost all the rights of personal property (when not in actual possession) do in great measure depend upon contracts, of one kind or other, or at least might be reduced under some of them: which indeed is the method taken by the civil law; it having referred the greatest part of the duties and rights, which it treats of, to the head of obligations ex contractu and quasi ex contractu. (g)

A contract may also be either executed, as if A agrees to change horses with B, and they do it immediately; in which case the posssesion and the right are transferred together: or it may be executory, as if they agree to change next week; here the right only vests, and their reciprocal property in each other's horse is not in possession but in action; for a contract executed (which differs nothing from a grant) conveys a chose in possession; a contract executory conveys only a chose in action.

Having thus 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 is an agreement, upon sufficient consideration." The civilians hold, that in [*444 ] all contracts, either express or implied, there must be something given in exchange, something that is mutual or reciprocal. (h) This thing, which is the price or motive of the contract, we call the consideration; and it must be a thing lawful in itself, or else the contract is void. A good consideration, we have before seen, (i) is that of blood or natural affection between near relations; the satisfaction accruing from which the law esteems an equivalent for whatever benefit may move from one relation to another. (j) This considera

(e) Dyer, 30. Bro. Abr. tit, chose in action, 1 and 4. (f) 3 P. Wms. 199.
(h) In omnibus contractibus, sive nominatis, sive innominatis, permutatio continetur.
(t) Page 297. (j) 3 Rep. 83.

(g) Inst. 3, 14, 2. Gravin. 1. 2, § 12.

(3) There are several exceptions to this rule. Bills of exchange when made payable to order were negotiable by the law merchant, and the person to whom they were indorsed might bring suit in his own name. The statute 3 and 4 Anne, c. 9, put promissory notes on the same footing, and if payable to bearer instead of to order they require no indorsement, and the property passes by mere delivery for value. Bills of lading and checks upon bankers are also negotiable, and the tendency of recent decisions is to hold all contracts for the payment of money, which by their terms are payable to bearer, and also all which by custom are transferable on mere delivery, as occupying the like position. See Delafield v. Illinois, 2 Hill, 159; Ide v. Connecticut, &c., R. R. Co., 32 Vt. 297; 1 Pars, on Cont. 5th ed. 291. The statutes of some of the states go very much further, and allow the assignee of any chose in action to bring suit in his own name. See Final v. Backus, 18 Mich. 218.

tion may sometimes, however, be set aside, and the contract become void, when it tends in its consequences to defraud creditors, or other third persons, of their just rights. But a contract for any valuable consideration, as for marriage, for money, for work done, or for other reciprocal contracts, can never be impeached at law; and, if it be of a sufficient adequate value, is never set aside in equity; for the person contracted with has then given an equivalent in recompense, and is therefore as much an owner, or a creditor, as any other person. (4)

These valuable considerations are divided by the civilians (k) into four species. 1. Do ut des: as when I give money or goods, on a contract that I shall be repaid money or goods for them again. Of this kind are all loans of money upon bond, or promise of repayment; and all sales of goods, in which there is either an express contract to pay so much for them, or else the law implies a contract to pay so much as they are worth. 2. The second species is, facio, ut facias; as, when I agree with a man to do his work for him, if he will do mine for me; or if two persons agree to marry together; or to do any positive act 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

| *445] Lisbon, B will not trade to Marseilles; so as to avoid interfering with each other. 3. The third species of consideration is, facio ut des: when a man agrees to perform any thing for a price, either specifically mentioned, or left to the determination of the law to set a value to it. As when a servant hires himself to his master for certain wages or an agreed sum of money: here the servant contracts to do his master's service, in order to earn that specific sum. Otherwise, if he be hired generally; for then he is under an implied contract to perform this service for what it shall be reasonably worth. 4. The fourth species is do, ut facias: which is the direct counterpart of the preceding. As when I agree with a servant to give him such wages upon his performing such work: which, we see, is nothing else but the last species inverted: for servus facit, ut herus det, and herus dat, ut servus faciat.

A consideration of some sort or other is so absolutely necessary to the forming of a contract, that a nudum pactum, or agreement to do or pay any thing

(k) Ff. 19, 5, 5.

(4) [If there be no fraud in the transaction, mere inadequacy of price would not be deemed, even in equity, sufficient to vacate a contract. 10 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. 1 Swans. 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. Ch. C. 167; 2 Brid. 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. 1 Lev. 111. And in an action of assumpsit, in consideration of 2s. 6d. paid, and 47. 17s. 6d. to be paid, the defendant undertook to deliver two rye corns next Monday, and double every succeeding Monday for a year, which would have required the delivery of more rye than was grown in all the world: on demurrer, Probyn, J., said, that though the contract was a foolish one, yet it would hold in law, and the defendant ought to pay something for his folly, and made the defendant refund the 2s. 6d. and costs. 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.]

If there be a consideration of some value the courts do not usually inquire into its adequacy, and a very small consideration may support a very onerous promise. Metc. on Cont. 168. Nevertheless, if the contract is plainly unconscionable, the party who sues for a breach of it in a court of law will be awarded such damages only as seem reasonable: Cutler v. How, 8 Mass. 257; and if he seeks specific performance in a court of equity it will be refused. Osgood v. Franklin, 2 Johns. Ch. 23; Chambers v. Livermore, 15 Mich. 281: A seal to a contract imports a consideration, and, at law, obviates the necessity of proving one: Metc. on Cont. 161, 233; but not, it seems, in equity, when enforcement of the contract is sought in that forum. Black v. Cord, 2 Har. and G. 100. Sharpe v. Rogers, 12 Minn. 174.