may be collected that all implied contracts or promises are founded on some legal liability to pay a debt, or perform a duty. Therefore, besides the instances just mentioned, when money is lent and advanced, paid, laid out, and expended, or had and received; and nothing is expressly stipulated by the parties as to the repayment thereof, the law raises an implied promise that it shall be repaid upon request. So, when money is due on an account stated, or for fines on admissions into copyhold premises; for fines and duties payable to corporations; for fees payable to particular officers; for petty customs and tolls; for general average; for the salvage of ship or goods; for the carriage or wharfage of goods; for money due on awards, or foreign judgments: So also, as between landlord and tenant, that the latter shall use his farm, &c. in a husband-like and proper manner: in these instances also, and various others which might be mentioned, though no express agreement be made, a legal liability arises, and the law presumes that the party promised to pay the debt, or perform the duty.

The last class of contracts implied by reason and construction of law, arises upon this supposition, that every one who undertakes any office, employment, trust, or duty, contracts with those who employ or entrust him, to perform it with integrity, diligence, and skill: and if, by his want of either of those qualities, any injury accrues to individuals, they have therefore their remedy in damages by action. A few instances will fully illustrate this matter; as, if a surgeon, attorney, or any other professional person is guilty of neglect of duty, or a palpable breach of it, he is liable to an action on an implied assumpsit or promise for a reparation in damages for the injury sustained in consequence of such neglect. There is also in law always an implied contract with a common innkeeper, common carrier, wharfinger, warehousekeeper, or other bailee to be answerable for the goods entrusted to their care; with a common farrier that he shoes a horse well without laming it; with builders and other workmen that they perform their business in a workman-like manner; in which if they fail, an action on the case, either in tort or assumpsit, lies to recover damages for the breach of their general undertaking. But if a person is employed to transact any of these concerns, whose common profession and business it is not, the law implies no such general undertaking; but in order to charge such person with damages an express agreement is required. (g)

It is difficult to state with certainty what contracts and promises are exclusively implied; though, as a general rule, it may be observed, that promises in law only exist where there is no express stipulation between the parties; for expressum facit cessare tacitum. (r)

(4) 3 Bl. Com. 165.

(r) Per Buller, Just. 2 Term Rep.105

4. OF THE PARTIES TO A CONTRACT.

The parties to a contract are two or more, namely, the person or persons who contract the obligation to do or forbear to do a particular act, and the person or persons in whose favour it is contracted. And, generally speaking, all persons, except infants and married women, having capacity and understanding, may, by mutual assent, become parties to a contract and bind themselves and their personal representatives to a performance thereof. (s) In some cases indeed, as will be shown in a subsequent part of this work, infants and married women may legally enter into a contract. The contracts of idiots, lunatics, or other persons labouring under a defect in the understanding, of such a nature as to render them incapable of comprehending the engagements they enter into, may be avoided. (t) It has also been determined, that a contract entered into by a man so drunk as to be wholly unable to understand what he was doing, is void at common law. (u) And though this decision may at first view appear to intrench upon the old common law maxim, viz. that a man shall not be permitted to stultify himself; (v) yet upon reflection it will be found to be rather an exception to the general rule than an infringement upon it.

So, a contract or promise made by a person under duress or unlawful imprisonment, or under any other violent menace or constraint, which has the effect of preventing him from exercising the free use of his understanding and judgment, may be avoided. (w) So, no contract can legally be entered into between a British subject and an alien enemy. (x) It may also be observed, that persons under judgment of outlawry, attainder of treason or felony, are incapacitated from making a contract for their own benefit; for, being considered in law as civilly dead, they cannot sue in any court of law; indeed their property, as well as all rights of action in respect thereof, are vested in the crown. (y)

Contracts and agreements are entered into by individuals either for themselves or third persons; and the liability of the parties thereto must wholly depend upon the general nature and terms of the contract. Thus, where A. B. and C. on behalf of themselves and other members of a club, entered into articles of agreement with D. to provide necessaries for the use and accommodation of the club; it was holden that the three were personally bound by such articles, and that D. was not

(s) 1 Bac. Abr. tit. Agreements. A. (t) Yates v. Boen, Stra. 1104. (u) Bul. Ni. Pri. 172. and Pitt v. Smith, 5 Camp. Rep. 33.

(v) See Co. Lit. 247. 2 Bl. Com. 291,2. (w) 2 Inst. 482. 1 Bl. Com. 156. Bul. Ni. Pri. 172.

(x) Brandon v. Nisbet, 6 Term Rep. 23. Bristow v. Towers, ib. 35.

(y) See the recent case of Bullock v. Dodd, 2 Barn. & Ald. 268. where the authorities on this subject are cited.

obliged to resort to any of the other members for satisfaction of his demands (z).

5. OF THE CONSIDERATION TO SUPPORT A

CONTRACT OR PROMISE.

It is essential to every contract or promise, that it be founded upon a good 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. 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 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 sufficient adequate value, is never set, aside in equity; for the person contracted with has then given an equivalent in recompence, and is therefore as much an owner, or a creditor, as any other person. (a)

These considerations are divided by the civilians 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 other positive acts on both sides: or, it may be to forbear on one side in 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: 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 on it. And 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

(z) Duke of Queensbury and others v. Cullen, 1 Bro. Parl. Cas. 396. 8vo. edit.

Horsley v. Bell, 1 Bro. Ch. Cas. 101. in notis.

(a) 2 Bl. Com. 444.

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. (b) 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. (c) But it is observed, (d) 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, it therefore does not hold in some cases where such a promise 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, and every note from the subscription of the drawer, carries with it an internal evidence of a good consideration. 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. This observation, as far as it respects promissory notes, and other written contracts not under seal, is certainly supported by the opinion of Mr. Justice Wilmot, in the case of Pillans v. Van Mierop, (e) who said, "I cannot find that a nudum pactum evidenced by writing has ever been holden bad; and I should think it good, though where it is merely verbal, it is bad. Yet I give no opinion upon its being good always when in writing." The law, however, on this point is now settled; and the rule is, that a verbal agreement, or promise, though reduced into writing, is not valid, without a good consideration. Thus, in the case of Rann and another, executors of Mary Hughes v. Isabella Hughes, administratrix of J. Hughes (ƒ), the declaration stated, that on the 11th June 1764, divers disputes had arisen between the plaintiff's testator and the defendant's intestate, which they referred to arbitration; that the arbitrator awarded that the defendant's intestate should pay to the plaintiff's testator 9831. That the defendant's intestate afterwards died possessed of effects sufficient to pay that sum; that administration was granted to the defendant; that Mary Hughes died, having appointed the plaintiffs her executors; that at the time of her death the said sum of 9831. was unpaid, by reason of which premises the defendant as administratrix became liable to pay to the plaintiffs as executors the said sum, and being so liable she, in consideration thereof, undertook and promised to pay, &c." Upon a writ of error in the House of Lords, after argument, the following question was proposed to the Judges by the Lord Chancellor, " Whether sufficient matter

appeared upon the declaration to warrant after verdict the judgment against the defendant in error in her personal capacity?" Upon which the Lord Chief Baron Skynner delivered the opinion of the Judges to this effect: "It is undoubtedly true, that every man is by the law of nature bound to fulfil his engagements. It is equally true, that the law of this country supplies no means, nor affords any remedy to compel the performance of an agreement made without sufficient consideration; such agreement is nudum pactum ex quo non oritur actio; and whatsoever may be the sense of this maxim in the civil law, it is in the lastmentioned sense only that it is to be understood in our law. The declaration states that the defendant being indebted as administratrix, promised to pay when requested, and the judgment is against the defendant generally. The being indebted is of itself a sufficient consideration to ground a promise, but the promise must be co-extensive with the consideration, unless some particular consideration of fact can be found here to warrant the extension of it against the defendant in her own capacity. If a person indebted in one right, in consideration of forbearance for a particular time promise to pay in another right, this convenience will be a sufficient consideration to warrant an action against him or her in the latter right: but here no sufficient consideration oecurs to support this demand against her in her personal capacity; for she derives no advantage or convenience from the promise here made. For if I promise generally to pay upon request, what I was liable to pay upon request in another right, I derive no advantage or convenience from this promise, and therefore there is not sufficient consideration for it. But it is said, that if this promise is in writing, that takes away the necessity of a consideration, and obviates the objection of nudum pactum, for that cannot be where the promise is put in writing; and that after verdict, if it were necessary to support the promise that it should be in writing, it will, after verdict, be presumed that it was in writing; and this last is certainly true: but that there cannot be nudum pactum in writing, whatever may be the rule of the civil law, there is certainly none such in the law of England. All contracts are by the laws of England distinguished into agreements by specialty, and agreements by parol; nor is there any such third class, as some of the counsel have endeavoured to maintain, as contracts in writing. If they be merely written and not specialties, they are parol, and a consideration must be proved. His Lordship also observed upon the case of Pillans v. Van Mierop (*), and the case of Losh v. Williamson, Mich. 16 G. 3. in B. R. and so far as these cases went on the doctrine of nudum pactum, he seemed to intimate that they were erroneous. And he concluded by saying, that all his

(*) 3 Burr. 1663.