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man promises to give another 1001., 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 But any degree of reciprocity will prevent the pact from will support it. 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 nu-
dum pactum t. And as this rule was principally estab-

(m) Bro. Abr. tit. Detle, 79. Salk. 129.
(n) Cod. 2. 3. 10 & 5. 14. 1.

• tions, it appears to have been an un- though the promise gives a compulsory • dertaking to give or to do some par- remedy where there was none before, * ticular thing or act, which neque ver- either in law or equity; yet, as the probis præscriptis solemnibus vestitum mise is only to do what an honest man ' sit, neque facto aut datione rei transiit ought to do, the ties of conscience upon ' in contractum innominatum.'

an upright man are a sufficient consi+ Mr. Christian observes, that “where deration. (Ld. Mansfield, 1 Cowp. 290). a man is under a moral obligation, which But, if a bankrupt, after obtaining his no court of law or equity can enforce, certificate, promise to pay a prior debt and promises, the honesty and rectitude when he is able, it has been held that of the thing is a consideration. As, if a this is a conditional promise, and that man promise to pay a just debt, the re- the plaintiff must prove the defendant's covery of which is barred by the statute ability to pay. (2 Hen. Bl. 116)." of limitations; or, if a man, after he [A distinction must be made becomes of age, promise to pay a merito- tween a mere voluntary promise, which rious debt, contracted during his mino- is nudum pactum, and upon which an rity, but not for necessaries; or, if a action cannot be maintained; and a bankrupt, in affluent circumstances af- promise upon the faith of which anter his certificate, promise to pay the other does some act—as, entering into whole of his debts; or, if a man pro- engagements, or paying money-formmise to perform a secret trust, or a ing a consideration that will support an trust void for want of writing by the action, and which may, therefore, esstatute of frauds.

tablish a debt against the assets of the “ In such and many other instances, party who gave such promise. (Crosbie

lished, to avoid the inconvenience that would arise from setting up mere verbal promises, for which no good reason could *be assigned (c), it, therefore, does not hold in some [ *446 ] cases, where such promise is authentically proved by written documents. For, if a man enters into a voluntary bond, or Bonds, bills of gives a promissory note, he shall not be allowed to aver the exchange, &c. 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 (9) †, carries with it an internal evidence of a good consideration. Courts of justice will, therefore, support them both, as against the

(o) Plowd. 308, 309.

(p) Hardr. 200. 1 Ch. Rep. 157. (9) Ld. Raym. 760.

But a


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v. M'Doual, 13 Ves. 160).

tracts, is the case of Rann v. Hughes. court of equity will not be more dis. See it reported in 7 T. R. 350. In posed than a court of law to lend any that case, Chief Baron Skinner said, assistance towards perfecting a mere that 'all contracts are, by the laws of voluntary contract, which remains in England, distinguished into agreefieri; even when the transaction is of a ments by specialty, and agreements nature which would be supported, if it by parol; nor is there any such third had once received completion. (Col- 'class as some of the counsel have enman v. Sarrell, 1 Ves. jun. 52, 54. . deavoured to maintain, as contracts in Willan v. Willan, 16 Ves. 82. Antro- writing. If they be merely written, bus v. Smith, 12 Ves. 46.-Ed.] • and not specialties, they are parol,

† Mr. Christian observes that, “Mr. and a consideration must be proved. Fonblanque has taken notice of this He observed, that the words of the inaccuracy: he says, what certainly is statute of frauds were merely negative, fully established, that the want of con- and that executors and administrators "sideration cannot be averred by the should not be liable out of their own • maker of a note, if the action be 'estates, unless the agreement upon 'brought by an indorsee; but, if the • which the action was brought, or 6 action be brought by the payee, the some memorandum thereof, was in • want of consideration is a bar to the writing, and signed by the party. • plaintiff's recovering upon it.' 1 Stra. • But, this does not prove that the 674. Bull. N. P. 274. An indorsee, agreement was still not liable to be who has given full value for a bill of 'tried and judged of as all other exchange, may maintain an action both agreements, merely in writing are, against him who drew it, and who ac- ' by the common law, and does not prove cepted it, without any consideration. • the converse of the proposition, that, The most important authority respect- when in writing, the ty must be at ing the consideration of written con- all events liable."" VOL. II.


be done or forborne.

Sale or ex

contractor himself; but not to the prejudice of creditors, or

strangers to the contract. 3. The thing to We are next to consider, thirdly, the thing agreed to be

done or omitted. “A contract is an agreement, upon suffi“ cient 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 change.

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 erchange: 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 mer“ chant,” for the field of Machpelah (s): though the prac.

tice of exchange still subsists among several of the savage [ *447 ) nations. But with regard to the law of * sales and exchanges,

there is no difference, I shall, therefore, treat of 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. As to the vend- Where the vendor hath in himself the property of the or's right to sell. goods sold, he hath the liberty of disposing of them to

whom ever he pleases, at any time, and in any manner: unless judgment has been obtained against him for a debt or (r) Noy's Max. c. 42.

(s) Gen. c. 23, v, 16.

damages, and the writ of execution is actually delivered to the sheriff. For then, by the statute of frauds (s), 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. Formerly it was bound from the teste, or issuing, of the writ(t), and any subsequent sale was fraudulent; but the law was thus altered in favour of purchasors, though it still remains the same between the parties (6): 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) †.

If a man agrees with another for goods at a certain price, Requisites in the he may not carry them away before he hath paid for them; sale of goods. 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

1 Mod. 188.

(s) 29 Car. II. c. 3.

(1) 8 Rep. 171.
(v) Comb. 33. 12 Mod. 5. 7 Mod. 95.

(6) If a defendant die in the vaca- may be, in order that, if the defendant tion, final judgment may be entered die before the judgment is actually enafter his death, as of the preceding tered up, his executor may have notice, term, when he was living; and it will and not pay debts of an inferior nabe a good judgment, at common law, ture. (Oades v. Woodward, 1 Salk. as of that term, though the statute of 87. 3 Salk. 116. Robinson v. Tonge, frauds will protect purchasers against 3 P. Wms. 399. Barrow v. Croft, 4 the consequences of this relation. As Barn. & Cress. 388. Heapy v. Parris, against the deceased defendant's repre- 6 T. R. 369. Waghorne v. Langmead, sentatives, execution may be sued out 1 Bos. & Pull. 572. Bragner v. Langwhen the judgment has been revived mead, 7 T. R. 24. Berger v. Green, by scire facias : it is proper, however, 1 Mau. & Sel. 230. Calvert v. Tomlin, that every judgment should be docketed 2 Moore & Payne, 1; S. C. 5 Bing. 3). as soon after it has been obtained as

+ Mr. Christian observes, that, “ if a vendee, without notice of the first, two writs are delivered to the sheriff on is irrevocable, and the sheriff makes the same day, he is bound to execute the himself answerable to both parties. (1 first which he receives; but if he levies Salk. 320. 1 T. R. 729)." and sells under the second, the sale to

B B B 2

( *448 ]

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 (u). 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 civil law calls arrha, and interprets to be emptionis-venditionis *contractæ argumentum (w),”) 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 (.v) t. 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, unless 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 (u) Hob. 41. Noy's Max. c. 42.

(w) Inst. 3, tit. 24. (.x) Noy, ibid.

Statute of frauds.


+ Mr. Christian observes, that “the “if the vendee does not come and pay, property does not seem to be absolute- ' and take the goods, the vendor ought ly bound by the earnest; for Lord Holt go and request him; and then, if has laid down the following rules, viz. he does not come and pay, and take

that, notwithstanding the earnest, the "away the goods in convenient time, ' money must be paid upon fetching ' the agreement is dissolved, and he is ' away the goods, because no other ' at liberty to sell them to any other . time for payment is appointed; that person.' (1 Salk. 113).”—[The qua* earnest only binds the bargain, and lified sense in which our author in'gives the party a right to demand; tended to be understood, when he said 'but then a demand without the pay- that “ the property of goods is abso'ment of the money is void; that, lutely bound by the payment of part of * after earnest given, the vendor cannot the price, by way of earnest," is made • sell the goods to another, without a clear enough by the next paragraph of . default in the vendee; and, therefore, the text.–Ed.]

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