broker who had effected a reinfurance, (a contract which the legiflature for fome reason, or for none, has been pleafed to render invalid) and credited the infurer and debited the affured with the premium, was not fubject to an action by the former for the amount, as that would be giving effect to the illegal contract. 3 East. 222. It does not feem to have been diftinctly agreed what would have been the opinion of the court, if the premium had been actually paid; but it does not occur to me, that any difference could properly arife from that circumftance, as the plaintiff was authorized by the defendant to confider it as paid: and from what fell from the court, it seems probable that they would not have thought the affured, (in confequence of a notice from whom the broker had refufed to pay) any better intitled to recover. It is obvious that the principle adopted in this cafe is oppofite to that which I have endeavoured to fupport. It seems to be no lefs oppofite to that of fome of the cafes which I have cited. Admitting the deference which to a certain extent is due to authority, and aware of the liability to prejudice in favour of an opinion, not the effect of momentary impreffion but of long and repeated confideration; I muft acknowledge myself unable to reconcile the converfe of that opinion in the present inftance, to my ideas of the true principles of judicial propriety. I still adhere to the opinion, that the authority of the legiflature is fufficiently fupported by denying a legal efficacy to the contract, without empowering the hand, which is only an inftrument of tranfmiffion, to retain from the party who has made an engagement nowife criminal, inducing an honorary obliga tion, though destitute of legal efficacy, that confideration which the party, ftipulating for the benefit of fuch obligation, has confented to pay. It is not probable that my private fentiments will in practice be opposed to a judicial opinion of the court of King's Bench, but the object of my enquiries calls not only for a statement of the authorities of the law, but, fo far as I am capable of giving it, an expofition of their principles. In attempting that expofition, I am perfectly confcious of my liability to error, but am not willing to make a tacit facrifice of what I firmly and fairly confider as the truth, and that upon a fubject which, to a mind not affected by technical habits, would feem incapable of raifing a question.

It may frequently happen that a contract is compofed of several parts, fome objectionable, others not fo. When that is the cafe, it becomes a queftion whether the illegality of a part infects and vitiates the whole. A diftinction, as is obferved by Lord Chief Juftice Wilmot, in the before-mentioned cafe of Collins v. Blantern, has been made upon this fubject, between contracts void at comVOL. II.

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mon law, and fuch as are void by ftatute; and it was faid, that in the first cafe, if it be bad, or void in any part, it is void in toto; but that at common law it may be void in part, and good in part; the judges formerly thought an act of parliament might be eluded, if they did not make the whole void, if part was void (a); it is faid the ftatute is like a tyrant, where he comes he makes all void; but the common law, like a nurfing father, makes only void that part where the fault is, and preferves the reft. 1 Mod. 35, 36. But I conceive that wherever an agreement is fingle and entire, wherever there is one entire complex confideration (6), and an effential part of it is repugnant to the principles of the law, the whole contract is invalid, whether the objection is founded upon the common law or upon a ftatute; more efpecially if it is a cafe at all affected by the objection of moral turpitude. But where different engagements contained in the fame act are feparate and diftinct, the mere invalidity of the one will not neceffarily induce the deftruction of the other.

A perfon cannot at the fame time fue for the execution of an agreement, and contend that part of that agreement is illegal. It was agreed upon a fale of tobacco to take a particular parcel of bad copper in payment; the feller brought an action for the price of the tobacco, and infifted upon being paid in money, for that the contract to accept payment in bad money was illegal and void. But it was ruled by the court of King's Bench, that, fuppofing the agreement to be illegal, the plaintiff never could recover. It could not be faid that the fale was good and the payment was bad; if it was an illegal contract, it was equally bad for the whole: it would be great injuftice to permit the plaintiff to recover for the goods fold, for that would be permitting him to take advantage of a corrupt agreement, which is never allowed in cafes where a party applies to the Court to fet afide fuch agreements. Alexander v. Owen, 1 T. R. 225.

(a) 1 Lev. 209. Hard. 564.

(6) Where a perfon made a verbal promife to pay the debt of another (which is void by the tatute of frauds), and also to do another act, it was ruled that the agreement was entire, and that the plaintiff could not feparate it, and recover on one part of the agreement, the other being void. Chater v. Beckett, 7 T. R. 201. And in the cafe of Bird v. Appleton, 8 T. R. 562, which underwent a very frequent and attentive difcution, a policy effected upon an Ameri– can veffel at and from Canton was admitted to be void, the veffel having brought goods from a British fettlement to Canton, contrary to the navigation acts, and difpofed of them there, to that during part of the time that the parties intended the policy fhould attach, namely, while the ship was at Canton, there was fomething illegal in the tranfaction. There is an old cafe in which a promise in confideration of 28. and fuffering an efcape, was held void as to the whole. Cro. Elix, 200.

NUMBER II.

NUMBER II.

(Referred to, Vol. I. p. 29.)

Of the Confideration of Contracts.

To the preceding difcuffion upon the invalidity of contracts as founded upon the illegality of their confideration, I fhall next fubjoin fome obfervations concerning the neceflity and fufficiency of a confideration according to the law of England; a subject very different from the preceding, as the objection founded upon the want of fuch confideration is merely negative, whereas the objection laft confidered is founded upon a pofitive wrong.

A gratuitous undertaking, serioudly made, is certainly fufficient to form the bafis of a moral and honorary obligation, and ought not to be receded from without fome adequate reafon; but in general a perfon does not intend to fubject himself thereby to legal responsibility: and the object of law is rather to give effect to contracts founded upon the mutual exigencies of fociety, than to compel the execution of a voluntary engagement of mere donation. But in most countries there are certain legal folemnities which indicate the ferious intention of contracting a valid and effectual obligation, and which difpenfe with the neceflity of any actual confideration. They import deliberation, and are inconfiftent with the nature of those promifes that are in effect little more than the intimation of a present intention, and with regard to which, expreffions only defigned to indicate fuch intention may eafily be perverted into thofe of abfolute engagement.

The principal mode of engagement, which in the Roman law difpenfed with an actual confideration, was a ftipulation. The perfon, to whom the promife was to be made, propofed a question to him from whom it was to proceed, fully exprefling the nature and extent of the engagement; and, the question fo propofed being anfwered in the affirmative, the obligation was complete. It was effentially neceflary that both parties should speak, (fo that a dumb perfon could not enter into a ftipulation) that the perfon making the promise fhould anfwer conformably to the fpecific question propofed, without any material interval of time, and with the intention of contracting an obligation. From the general ufe of this mode of contracting, the term ftipulation has been introduced into common parlance, and in modern language frequently refers to any thing which forms a material article of an agreement; though it is applied more correctly, and more conformably to its original meaning, to denote the infifting upon and requiring any particular engagement.

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The nuda pacta, which were those agreements that had neither any definite name, nor any caufe of creating an obligation beyond the engagement itself, did not induce any legal right. Vinnius fays, that the Roman jurifprudence refufed to give a compulsory force to these engagements, that they might reft upon the mere integrity of the parties who contracted them, thinking it more honourable, and more conducive to the culture of virtue, to leave fome things to the good faith and probity of mankind, than to fubject every thing to the compulfory authority of the law. Inft. Lib. III. tit. 14.

According to the law of England, a deed fealed and delivered is in this respect analogous to the ancient ftipulation. It is a folemn act, manifesting the intention of the party to contract a legal obligation, and the engagement which it contains cannot be impeached for the mere want of confideration; though, as has been already mentioned, an illegality of confideration is equally fatal to all engagements in whatever manner conftituted. A promise without a confideration, unlefs contained in a deed, is void; and by the law of England, borrowing the expreflion of the Roman law, is termed nudum pactum.

In one cafe, two very celebrated judges intimated an ́opinion, that the objection of want of consideration could not be applied where the promise was in writing; and one of the fame judges is ftated to have said, that in commercial cases among merchants, the want of confideration is not an objection. Van Microp v. Pillans, 3 Bur. 1663. But thefe obfervations are contradicted by the general current of authorities, both prior and fubfequent. In a cafe which occurred before the Houfe of Lords, recently after they were made, but which has only lately been publifhed, it was urged that a promise, which appeared to be without confideration, might have been made in writing; which would remove the objection: but the Chief Baron of the Exchequer, in delivering the opinions of the judges, faid, All contracts are by the law of England distinguifhed into agreements by specialty and agreements by parol; nor is there any fuch third clafs as the counfel have endeavoured to maintain, as contracts in writing. If they be merely written, and not specialties, they are parol, and a confideration must be proved. Rann v. Hughes, 7 T. R. 350. n.

In fact, mere writing does not appear in the early periods of our law to have been much regarded. To write was an unusual qualification, the want of which reflected no difgrace even upon the higher claffes of fociety; and diftinct appropriate feals were ufed for the atteftation of folemn inftruments. Since the knowledge of writing has become more diffused, thofe appropriate seals have fallen

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fallen very much into difufe, the fignature of a party being more.

notorious evidence.

That the want of confideration fhould be immaterial in mercantile transactions, is a propofition equally deftitute of fupport; and, though it may never have been judicially contradicted in terms, is in effect inconfiflent with feveral cafes of daily occurrence. The extent and adequacy of a confideration in relation to the engagement with which it is connected, is allowed to be immaterial. The cafe of Shulbrick v. Salmon, 4 Burr. 1637, is an illustration of the principle that it is not requifite that the confideration fhould be commenfurate with the promife, and that in cafe of mutual promifes the engagement on the one fide may be abfolute, whilft that of the other is conditional. The defendant engaged that his ship should fail for Winyaw in South Carolina as foon as ready, the plaintiff engaging to load it there and pay a certain freight. There was a condition that if the fhip did not arrive before the first of March, it fhould be in the option of the plaintiff to load the fhip or not. The defendant alledged that by contrary winds, the fhip was prevented from failing within fuch a time, that it could poffibly arrive before the first of March. And it was contended on his part, that as the plaintiff would not be under an obligation to lade it upon an arrival after the first of March, it was not incumbent on himself to go there. It was faid, that the confideration failed, and it was a covenant on one fide only. But it was evidently the opinion of the court, that the engagement of freighting in cafe of an arrival before the first of March, was an adequate confideration for the oppofite engagement to go at all events. The decifion more immediately turned upon the engagement being by deed, to which no confideration is neceflary. Lord Chancellor Loughborough, in a cafe which affords one of the finest modern fpecimens of judicial eloquence, faid, that a bargain without a confideration is a contradiction in terms, and cannot exist. Middleton v. Lord Kenyon, 2 Vef. Jun. 188.

The cafe which I first cited as containing two obfervations that could not be fupported, furnishes the more correct principle, that any damage to another, or fufpenfion or forbearance of his right, is a foundation for an undertaking, and will make it binding; though no actual benefit accrues to the party undertaking. This principle was illuftrated by the immediate point decided in the caufe: for a perfon in Rotterdam, having paid the draft of another in England upon an offer of credit on a house in London; a letter from the partners of that house, that they would honour a bill which might be drawn, was adjudged to be obligatory, although the money had been advanced before the promise was made; as the merchant