on one side, without any compensation on the other, is totally void in law; and a man cannot be compelled to perform it. (1) (5) As if one man promises to give another 100%, here there is nothing contracted for or given on the one side, and therefore there is nothing binding on the other. And, however a man may or may not be bound to perform it, in honour or conscience, which the municipal laws do not take upon them to decide; certainly those municipal laws will not compel the execution of what he had no visible inducement to engage for: and therefore our law has adopted (m) the maxim of the civil law, (n) that ex nudo pacto non oritur actio. But any degree of reciprocity will prevent the pact from being nude: nay, even if the thing be founded on a prior moral obligation (as a promise to pay a just debt, though barred by the statute of limitations,) it is no longer nudum pactum. (6) And as this rule was principally established to avoid the inconvenience that would arise from setting up mere verbal promises, for which no good reason could *be assigned, (o) it therefore does not hold in some cases, where such prom[ *446 ] ise is authentically proved by written documents. For if a man enters into a voluntary bond, or gives a promissory note, he shall not be allowed to aver the want of a consideration in order to evade the payment: for every bond, from the solemnity of the instrument, (p) and every note, from the subscription of the drawer, (q) (7) carries with it an internal evidence of a good consideration. (l) Dr. & St. d. 2, c. 24. (0) Plowd. 308, 309. (m) Bro. Abr. tit. dette. 79. Salk. 129. (p) Hardr. 200. 1 Ch. R. 157. (n) Cod. 2, 3, 10 and 5, 14, 1. (9) Ld. Raym. 760. (5) [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. and Lef. 228; Fonbl. Eq. 2d ed. 347, n. f.; Plowd. 308, 309. 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 promis ing, by the party in whose favor the promise is made. 4 East, 455; 1 Taunt. 523. A written agreement, not under seal, is nudum pactum, without consideration; and a negotiable security as a bill of exchange, or promissory note, carries with it prima facie evidence of consideration, which is binding in the hands of a third party, to whom it has been negotiated, but may be inquired into between the immediate parties to the bill, &c., themselves. The consideration for a contract, as well as the promise for which it is given, must also be legal. Thus a contract for the sale of blasphemous, obscene, or libellous prints, or for the furtherance of immoral practices, or contrary to public policy, or detrimental to the rights of third parties, or in contravention of the statute law, in all these cases the considerations are invalid, and the contracts void.] (6) A mere moral obligation is not a sufficient consideration to support an express contract, except in those cases where there was originally an obligation which was enforceable but for the interference of some positive rule of law. The reporters, in a note to the leading case of Wennall v. Adney, 3 B. and P. 352, state the law very correctly to be, 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 could never have been enforced at law, though not barred by any legal maxim or statute provision." Accordingly it has been held that a promise made by a father to pay expenses incurred in caring for his adult child taken sick at a distance from his relatives, would not support an action. Mills v. Wyman, 3 Pick. 207. Neither would a promise to pay for labor expended by the plaintiff on land which he claimed, but which the defendant recovered from him. Frear v. Hardenberg, 5 Johns. 272. Nor a promise to pay a witness a sum beyond his legal fees for attendance upon court. Willis v. Peckham, 1 Brod. and Bing. 515. And see Eastwood v. Kenyon, 11 A. and E. 438; Cook v. Bradley, 7 Conn. 57; Parker v. Carter, 4 Munf. 273; and the cases cited in Metc. on Cont. 178; et seq., and 1 Pars. on Cont. 5th ed. 434. A promise to pay a debt barred by the statute of limitations, or discharged in bankruptcy, or contracted during infancy, may be enforced within this rule; and so may the promise of an indorser to pay a bill from which he is discharged by neglect to give notice of dishonor. But where one released his debtor in order to make him a witness, the debtor's promise to pay the debt was held to be nudum pactum. Valentine v. Foster, 1 Met. 520. (7) [Mr. Fonblanque, in his discussion of the subject of consideration, referred to in the last note but one, has taken notice of this inaccuracy: he says, what certainly is fully estab lished, that the want of consideration cannot be averred by the maker of a note, if the action be brought by an indorsee; but if the action be brought by the payee, the want of consid VOL. I.-79 625 Courts of justice will therefore support them both, as against the contractor himself; but not to the prejudice of creditors, or strangers to the contract. 66 We are next to consider, thirdly, the thing agreed to be done or omitted. "A contract is an agreement, upon sufficient consideration, to do or not to do a particular thing." The most usual contracts, whereby the right of chattels personal may be acquired in the laws of England, are, 1. That of sale or exchange. 2. That of bailment. 3. That of hiring and borrowing. 4. That of debt. 1. Sale, or exchange, is a transmutation of property from one man to another, in consideration of some price or recompense in value: for there is no sale without a recompense: there must be quid pro quo. (r) If it be a commutation of goods for goods, it is more properly an exchange: but if it be a transferring of goods for money, it is called a sale; which is a method of exchange introduced for the convenience of mankind, by establishing an universal medium, which may be exchanged for all sorts of other property; whereas, if goods were only to be exchanged for goods, by way of barter, it would be difficult to adjust the respective values, and the carriage would be intolerably cumbersome. All civilized nations adopted, therefore, very early the use of money; for we find Abraham giving "four hundred shekels of silver, current money with the merchant," for the field of Macpelah; (s) though the practice of exchange still subsists among several of the savage nations. But with regard to the law of *sales and exchanges, there is no difference. I shall, therefore, treat of [ *447 ] them both under the denomination of sales only; and shall consider their force and effect, in the first place where the vendor hath in himself, and secondly where he hath not, the property of the thing sold. Where the vendor hath in himself the property of the goods sold, he hath the liberty of disposing of them to whomsoever he pleases, at any time, and in any manner; unless judgment has been obtained against him for a debt or damages, and the writ of execution is actually delivered to the sheriff. For then, by the statute of frauds, (4) the sale shall be looked upon as fraudulent, and the property of the goods shall be bound to answer the debt, from the time of delivering the writ. (8) Formerly it was bound from the teste, or issuing of the writ, (u) and any subsequent sale was fraudulent; but the law was thus altered in favour of purchasers, though it still remains the same between the parties; and therefore if a defendant dies after the awarding and before the delivery of the writ, his goods are bound by it in the hands of his executors. (v) (9) If a man agrees with another for goods at a certain price, he may not carry them away before he hath paid for them; for it is no sale without payment, unless the contrary be expressly agreed. And therefore, if the vendor says, the price of a beast is four pounds, and the vendee says he will give four pounds, the bargain is struck; and they neither of them are at liberty to be off, provided immediate possession be tendered by the other side. But if neither the money be paid nor the goods delivered, nor tender made, nor any subsequent agreement be entered into, it is no contract, and the owner may dispose of the goods as he pleases. (w) But if any part of the price is paid down, if it be but a penny, or any portion of the goods delivered by way of earnest (which the (r) Noy's Max. c. 42. (8) Gen. c. 23, v. 16. (v) Comb. 33. 12 Mod. 5. 7 Mod. 95. (t) 29 Car. II, c. 3. (u) 8 Rep. 171. 1 Mod. 188. (w) Hob. 41. Noy's Max. c. 42. eration is a bar to the plaintiff's recovering upon it. 1 Stra. 674; Bull. N. P. 274; 1 B. and P. 651; 2 Atk. 182; and Chitty on Bills, 68. An indorsee, who has given full value for a bill of exchange, may maintain an action both against him who drew it and him who accepted it, without any consideration. 4 T. R. 339, 471; 5 Esp. Rep. 178; 3 id. 46.] (8) This rule is believed not to prevail generally in the United States, but the goods are bound only from the time when they are actually levied upon by virtue of the writ. (9) [If two writs are delivered to the sheriff on the same day, he is bound to execute the first which he receives; but if he levies and sells under the second, the sale to a vendee, without notice of the first, is irrevocable, and the sheriff makes himself answerable to both parties. 1 Salk. 320; 1 T. R. 729.] Chap. 30.] TITLE BY CONTRACT. [ *448] civil law calls arrha, and interprets to be "emptionis venditionis *contracte argumentum,") (x), the property of the goods is absolutely bound by it; and the vendee may recover the goods by action, as well as the vendor may the price of them. (y) (10) And such regard does the law pay to earnest as an evidence of a contract, that, by the same statute, 29 Car. II, c. 3, no contract for the sale of goods, to the value of 101. or more, shall be valid, uuless the buyer actually receives part of the goods sold, by way of earnest on his part; or unless he gives part of the price to the vendor by way of earnest to bind the bargain, or in part of payment; or unless some note in writing be made and signed by the party, or his agent, who is to be charged with the contract. (11) And with regard to goods under the value of 107. no contract or agreement for the sale of them shall be valid, unless the goods are to be delivered within one year, or unless the contract be made in writing, and signed by the party, or his agent, who is to be charged therewith. (12) Anciently, among all the northern nations, shaking of hands was held necessary to bind the bargain; a custom which we still retain in many verbal contracts. A sale thus made was called handsale, "venditio per mutuam manuum complexionem;" (2) till in process of time the same word was used to signify the price or earnest, which was given immediately after the shaking of hands, or instead thereof. As soon as the bargain is struck, the property of the goods is transferred to the vendee, and that of the price to the vendor; but the vendee cannot take the (y) Noy, ibid. (x) Inst. 3, tit. 24. (z) Stiernhook de jure Goth. l. 2, c. 5. (10) [The property does not seem to be absolutely bound by the earnest for Lord Holt has laid down the following rules, viz.: "That notwithstanding the earnest the money must be paid upon fetching away the goods, because no other time for payment is appointed; that earnest only binds the bargain, and gives the party a right to demand; but then a demand without the payment of the money is void; that after earnest given, the vendor cannot sell the goods to another, without a default in the vendee; and therefore if the vendee does not come and pay, and take the goods, the vendor ought to go and request him; and then if he 1 Salk. 113; see 3 does not come and pay, and take away the goods in a convenient time, the agreement is dissolved, and he is at liberty to sell them to any other person." Camp. 426.] (11) [In construing the statute of frauds, the principal difficulty has arisen in determining what acts between the parties amount to a delivery on the one part, and acceptance on the other. An actual delivery by the seller, and acceptance by the buyer, is not necessary in all 1 Atk. 170; 1 East, 194. Or cases; as where goods are ponderous, delivery of the key of the warehouse in which they are deposited, or delivery of other tokens of property is sufficient. payment of warehouse rent by the purchaser. 1 Camp. Rep. 452. Where goods are sold by sample, delivery of the sample to the purchaser may be part delivery within the statute: 5 Esp. 267; 7 East, 564; but it is otherwise if the sample be not part of the bulk. 7 T. R. 14; Holt. N. P. 179. Delivery of an order by the seller, to a wharfinger or warehouseman who has the custody of the goods, to deliver them to the vendee, is sufficient to satisfy the statute. 2 Esp. Rep. 598. So, if a purchaser write his name or initials upon the article bought, it will suffice; but other articles bought at the same time will not pass unless the signature is But in the case of Tempest v. Fitzgerald, where put upon them also. 1 Camp. 233, 235, n. the defendant agreed to purchase a horse for ready money, and to take it at a distant specified day, before which day defendant rode the horse and gave directions as to its treatment, but requested that it might remain in plaintiff's possession for a further time, when he would fetch it away and pay the price, to which plaintiff assented, and the horse died in the interval, it was held that there was no acceptance of the horse within the meaning of the statute of frauds. In this case there was no earnest given, nor part payment, nor any note or memorandum in writing, which distinguishes it from the case in the text; and as it was a ready money bargain, the purchaser could have no right to take away the horse till the price was paid, and of course there could be no acceptance on the part of the defendant. These cases will illustrate the principle on which the statute of frauds is founded, the object of which (in the language of Mr. J. Holroyd) was to remove all doubts as to the completion of the bargain, and it therefore requires some clear and unequivocal acts to be done in order to show that the thing had ceased to be in fieri. 3 Bar. and Ald. 684.] (12) [And this enactment is, by Lord Tenterden's act (9 Geo. IV, c. 14), extended to all contracts for the sale of goods of the value of 101. sterling and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not, at the time of the contract, be actually made, or provided, or ready for delivery, or some act may be requisite for the making or completing thereof, or ren-lering the same fit for delivery.] 627 goods, until he tenders the price agreed on. (a) (13) But if he tenders the money to the vendor, and he refuses it, the vendee may seize the goods, or have (a) Hop. 41. (13) [It has long been settled that delivery to an agent of the vendee (and for this purpose common carriers, packers, and wharfingers, are considered to stand in that character) is for most purposes a delivery to the vendee himself. But this species of delivery affords a security to the vendor upon credit, which does not exist where the delivery is actually made to the vendee himself; for if the vendor discover that the vendee is insolvent, or has become bankrupt, he may seize upon the goods so sold upon credit, and delivered into the hands of such carrier, &c., at any time before their actual and complete delivery to the vendee. This branch of the law is called STOPPAGE IN TRANSITU, and though not referred to in the text, may be properly stated in this place, from its importance in the concerns of trade and commerce. This law is founded upon an equitable right in the vendor to detain the goods until the price be paid or tendered, for stoppage in transitu does not rescind the contract of sale: 1 Atk. 245; 3 T. R. 466; 6 East, 27; and if the vendor afterwards offer to deliver them, he may, unless he had resold them, recover the price, which he could not do if by stopping in transitu the sale was rescinded. 1 Camp. 109; 6 Taunt. 162. The right extends to every case in which the contract is in effect a sale, and the consignor substantially the vendor of the goods. 3 East, 93; Amb. 399; 3 T. R. 783. It extends also to contracts of exchange, as to an agreement between consignor and consignee that the latter shall return another commodity of equal value in payment, and the fulfilment of which engagement is rendered hazardous by his insolvency. Sittings post M. Term. Guildhall, 1822; 3 Chit. C. L. 346. The consignor of goods for sale on the joint account of himself and the consignee, may exercise this right in the event of the bankruptcy or insolvency of the latter: 6 East, 371; but it does not arise between principal and factor, for the property is never devested out of the principal, and the factor as against him has only a right of lien upon the goods, and he cannot, after parting with them, repossess himself of them while in transitu. 1 East, 4; 2 New R. 64. Nor can the surety for the payment of the price of goods, by the vendee, though he may have accepted the bills drawn upon him by the consignee for that purpose, stop the goods in transitu. 1 Bos. and Pul. 563. If a party, being indebted to another, on the balance of accounts, including bills of exchange running accepted by the latter, consign goods to him on account of this balance, the consignor has no right to stop them in transitu, upon the consignee becoming insolvent before the bills are paid. 4 Campb. 31. If a sale be legalized by license, and the vendor be an alien enemy, he may stop the goods in transitu: 15 East, 419; and any authorized agent of the consignor may exercise the right. See 1 Campb. 369: Though the consignment must be on credit, at least for some part of the price, yet partial payment, acceptance of bills on account of, and not as actual payment, or the vendor's being indebted to the vendee in part of the value, will not defeat the right to resume possession before actual delivery to the vendee. 7 T. R. 440, 464; 3 East, 93; 2 Vern. 203. It is necessary that the consignee should become bankrupt or be insolvent for the vendor to exercise this right. 6 Robinson Ad. R. 321. It is not necessary that the vendor, to exercise this right of stoppage, should actually take possession of the property consigned, by corporal touch: he may put in his claim or demand of his right to the goods in transitu, either verbally or in writing, and it will be equivalent in law to an actual stoppage of the goods, provided it be made before the transit has expired. 2 B. and P. 457, 462; 2 Esp. R. 613; Co. B. L. 494; 1 Atk. 45; Amb. 399; 3 East, 394. This right may be exercised by making out a new invoice or bill of lading: Holt, N. P. 338; but such a claim on the part of the consigneo would not be sufficient to devest the former of his right. 2 Esp. 613; 5 East. 175; 14 id. 303. The transitus in goods continues till there has been an actual delivery to the vendee or his agent expressly authorized for that purpose, with the express or implied consent of the vendor to sanction such delivery. 3 T. R. 466; 5 East, 181. The delivery of goods to the master on board a ship wholly chartered by the consignee, is not such a delivery to the vendee as to put an end to the transitus; for the master is a carrier of both consignor and consignee; and till a ship is actually at the end of her voyage, the right of stoppage in transitu continues ; and where a ship came into port without performing quarantine, when she ought to have done so, and the assignees of the consignee, who had become bankrupt, took possession of the goods, and the ship was ordered out of port to perform quarantine, where an agent of the consignor claimed the goods on behalf of his principal, it was held that the consignor had properly exercised and might claim a stoppage in transitu. 1 Esp. 240. And goods deposited in the king's warehouses under 26 Geo. III, c. 59, may be stopped in transitu, though they have been claimed by the consignee. 2 Esp. 663. On the other hand, the transitus may be determined by delivery of the key of the warehouse where the goods are deposited to the vendee. 3 T. R. 464; 8 T. R. 199: or payment of rent for such warehouse to the vendor, or to the wharfinger, with the vendor's privity. 1 Campb. 452; 2 id. 243; 1 Marsh. 257, 258. And in all similar cases of constructive delivery and acceptance, the right to stoppage in transitu is at an end. See 7 Taunt. 278; 2 Bar. and Cres. 540; i Ryan and Moody, N. P. C. 6; and 3 Chitty's Com. L. 340.] Upon the right of stoppage in transitu, see the American cases collected in 1 Pars. on Cont. 5th Am. ed. 595-601. And see Houston on Stoppage in Transitu. an action against the vendor for detaining them. And by a regular sale, without delivery, the property is so absolutely vested in the vendee, that if A sells a horse to B for 10., and he pays him earnest or signs a note in writing of the bargain; and afterwards, before the delivery of the horse, or money paid, the horse dies in the vendor's custody, still he is entitled to the money, because by the *contract the property was in the vendee. (b) Thus may property in goods be transferred by sale, where the vendor hath such property in [ *449 ] himself. But property may also in some cases be transferred by sale, though the vendor hath none at all in the goods; for it is expedient that the buyer, by taking proper precautions, may at all events be secure of his purchase; otherwise all commerce between man and man must soon be at an end. And therefore the general rule of the law is, (c) that all sales and contracts of any thing vendible, in fairs or markets overt, (14) (that is, open,) shall not only be good between the parties, but also be binding on all those that have any right or property therein. And for this purpose, the Mirror informs us, (d) were tolls established in markets, viz.: to testify the making of contracts; for every private contract was discountenanced by law: insomuch that our Saxon ancestors prohibited the sale of anything above the value of twenty pence, unless in open market, and directed every bargain and sale to be contracted in the presence of credible witnesses. (e) Market overt in the country is only held on the special days provided for particular towns by charter or prescription; but in London every day, except Sunday, is market day. (f) The market place, or spot of ground set apart by custom for the sale of particular goods, is also in the country the only market overt; (g) but in London every shop in which goods are exposed publicly to sale is market overt, for such things only as the owner professes to trade in. (h) But if my goods are stolen from me, and sold, out of market overt, my property is not altered, and I may take them wherever I find them. And it is expressly provided by statute 1 Jac. I, c. 21, that the sale of any goods, wrongfully taken, to any pawnbroker in London, or within two miles thereof, shall not alter the property: for this, being usually a clandestine trade, is therefore made an exception to the general rule. And even in market overt, if the goods be the property of the king, such sale (though regular in other respects) *will in no case bind him; though it binds infants, feme-coverts, idiots, and lunatics, and men beyond sea or in prison: or if the goods be stolen [ *450] from a common person, and then taken by the king's officer from the felon, and sold in open market; still, if the owner has used due diligence in prosecuting the thief to conviction, he loses not his property in the goods. (i) (15) So likewise, if the buyer knoweth the property not to be in the seller; or there be any other fraud in the transaction; if he knoweth the seller to be an infant, or femecovert not usually trading for herself; if the sale be not originally and wholly made in the fair or market, or not at the usual hours; the owner's property is not bound thereby, (j) If a man buys his own goods in a fair or market, the contract of sale shall not bind him, so that he shall render the price : unless the property had been previously altered by a former sale. (k) And notwithstanding any number of intervening sales, if the original vendor, who sold without having the property, comes again into the possession of the goods, the original. owner may take them, when found in his hands who was guilty of the first breach of justice. (1) By which wise regulations the common law has secured the right of the proprietor in personal chattels from being divested, so far as was LL. Eadg. Wilk. So. (1) 2 Inst. 713. (b) Noy, c. 42. (f) Cro. Jac. 68. (e) 2 Inst. 713. (g) Godb. 131. (i) Bacon's Use of the law, 158. (d) C. 1, 3. (e) LL. Ethel. 10, 12. (14) This rule does not obtain in the United States. Wheelwright v. Depeyster, 1 Johns. 471. (15) This subject is now covered by statute 24 and 25 Vic. c. 96, s. 100. See 7 C. and P. 431; id. 646. The effect of the statute is, upon conviction of the thief, to restore to the owner the property in the goods stolen, with all the legal remedies incident to that right; and this notwithstanding a sale in market overt. Scattergood v. Sylvester, 15 Q. B. 506; Roscoe, Cr. Ev. 212. |