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CH. 1.
Art. 2.

to the ordinance, the question has been, what is a private contract; as to the constitution, what is a contract, a state legislature is not allowed, to impair. On this subject will be found in the subsequent pages some of the most important judicial decisions in our country.

It has been correctly observed, that this clause includes the word contract, generally and that it cannot be confined (as some urge it must) to bills of credit, ex post facto and tender laws, because these are expressly provided against in the same section; the only reasons recollected for not giving the word "contract" its usual meaning in this section, that is, as meaning a convention to do or not to do something. There are two kinds of private contracts; 1, those made by individuals and private corporations; 2, where the public, as the state, is one party, as when it creates a corporation to hold and manage private property, or funds for private, or even general charities, as for the benefit of an indefinite multitude, whether persons infirm, poor, to be instructed in literature, civilized, christianized, &c. Here is a contract, and the incorporating power is merely a party to it, and cannot alter it without the consent of the private donors, or of those they entrust to manage and apply their funds in the manner settled in forming the body politic. These considerations lead to the material distinction there is, in the fifth place, between incorporations for charitable and political purposes. When created for political purposes, as counties, towns, &c. the incorporation is a mere organization of political powers, as a part of the public government. In such cases the incorporating power enters into no contract; so far is not a party to one, but may alter and modify, at discretion, as the practice invariably has been. A statute, in such cases, incorporating a town, or any body politic, really a part of the political government of the state or nation, is not a contract or grant, but the statute enacts a law, ordains and establishes a rule of conduct, alterable at the discretion of the incorporating power, still this power may vest in towns, &c. rights it cannot vary, as for instance, a corporate capacity to purchase, hold, and sell lands, and in this capacity a town actually holds lands; as to these there is a contract, for there is an implied engagement by the incorporating power, not to touch these lands without the town's consent, except to tax them. This engagement results from the spirit of the government, whenever one of its principal objects is to protect and secure private property and rights to their legal owners; and whenever the incorporating power is not despotic, but is only a power delegated by the people with restrictions, the safeguards of private right and property.

CH. 1.

Art. 3.

of incorpora

ART. 3. The execution. §1. Every exchange is executed at the time the verbal agreement, or written contract, is carried into execution, and has its effect; and, therefore, can never be the object of legal compulsion. None can be the object of this How far acts compulsion, except those made to secure the performance of tion are consome future act; and then, in the nature of things, to convey tracts, &c. or transfer property, as lands or goods; render services, or See Corporapay monies, in fixt or reasonable quantities. The intent of cially ch. 143 every contract is the same, that is, to bind one party to trans- a. 3. fer or pay, and to give the other a right, in law, or equity, to enforce the performance, so that he shall receive the money, or effects, according to their meaning.

§2. When one detained the goods of another, and which the latter had a right to have, the first and obvious remedy was, an action of debt or detinue, wherein the plaintiff stated his right to the thing, which he alleged the other unjustly detained: if goods or debt the defendant owed as the representative of another, he was considered as detaining the one or the other, or if he owed the debt himself, in his own right, he was viewed as owing and detaining, and to be called upon to render what he owed and unjustly detained. Hence, there has ever existed, in different nations, the distinction between charging one in the debet and detinet, and in the detinet only. In a larger sense, a man may be bound to pay in money, property, or labour. Before money was used, he could be held to pay but in the two last, but since the general measure of all property, an acknowledged currency, has been used, payment has been understood in a more limited and appropriate sense, as a payment in money. The precious metals properly stamped, have most generally been adopted as this common measure. When a common representative of all property and services is thus established, it usually becomes the course of business, for the proprietor to sell the one, or yield the other, for a quantity of these metals, he is to receive of the purchaser, at the time, or afterwards, as the just equivalent for the thing parted with. This quantity must be fixed by the parol agreement, or written contract; or it must be a reasonable quantity left to be ascertained by third persons, referees, judges or jurors. Where one agrees to pay the other a certain sum, as the price of labour or goods, a debt arises, and the payer is a debtor and the receiver a creditor. And the latter in an action of debt, recovers this precise sum; and often with damages for the detention of it, after the pay-day fixed upon, or after a legal demand of payment, where no such day is named. But when the sum is not thus fixed and certain, nor capable of being reduced to a certainty by calculation, made on given data, but sounds only in damages, the creditor does not recover a debt, but only

tion, espe

Сн. 1.
Art. 4.

damages (and costs ;) therefore, when the party agreeing of contracting to render to another, lands, goods, or a reasonable sum of money, fails to perform, the other can only sue for and recover damages to be fixed by a jury. In expounding a contract, the place where made must be considered, unless the parties have a view to another government, as when a bill was drawn in France, payable in England, it was held that it was governed by English law, because, originally intended to be carried into effect in England, but secus if payable in France. This rule applies to the nature and construction of contracts, not to the mode of enforcing them. Hence a contract made in Madeira under Portuguese law, between two Portuguese subjects, where a debtor's body is not liable, was enforced in N. York by her law, and the deft. held to bail. 2 Johns. R. 198, 220, Smith v. Spinolla, and cases cited 7 John. R. 117, 118. ART. 4. Contracting parties. §1. There must be two at least ; and these must be able to contract either expressly or by legal implication. Their contract may be executed, as where two 522-2 H. Bl. agree to exchange horses, and do it immediately, this conveys 553-8 Johns. a chose in possession, and is like a grant that transfers the R. 189-2 Bl. right and possession together; or it may be executory; as if Com. D. 411. they agree to exchange next week. This conveys only a chose -Co. L. 172. in action. Here the right only vests. It is of the very essence -Aliens.- of a contract to the parties consent. To this end they must have a physical, a moral power to do it, and a free exercise of this power, and actually exercise it in deed, or in contemplation of law.

1 W. Bl. 259.
Robinson v.

Bland.
Cooke's B.

Law 373,

Com. 442-1

New.on Con. L. 31, 32.Co. L. 2. Idiots, &c.

In what

sense. See Baron and Feme.

2. Hence idiots, lunatics, and persons non compos mentis, or distracted, not having reason to assent, cannot contract; and their contracts are void ab initio ; and may be shown to be so on the general issue in some cases, and in others on special pleading; but if a man be legally compos mentis, be he wise or unwise, he is bound by his contract; yet, however, if a contract be obtained from a weak man, by any fraud, practice, breach of trust, or unfair means, it may be avoided, not on account of his incapacity, for the law deems him capable, but by reason of this practice with him, which is considered as evidence, and often, as proof of deceit and imposition: and in weighing the evidence the judges will notice that less art will deceive a weak than a sensible man. A feme covert has no power to contract, or assent, and her contract is wholly void, except in a few special cases, in which the law allows her to act as a feme sole, or as under the protection of the court. Persons under duress cannot contract or assent. If minors contract, except for necessaries, they may avoid their contracts, or confirm them when they come of age. (If a contract be void or only voidable is yet unsettled in several cases.)

CH. 1.

Art. 5.

§3. Their assent may be given, expressly, by words or by signs, or tacitly; but it is a maxim in law, that no assent be inferred from a man's silence, unless; 1, he knows his right and what is doing; and 2d, unless his silence be voluntary. It there- Assent to fore follows, if I know one is conveying my property to another, contracts. and I am voluntarily silent, I may be barred; for the law, in

ton.

civil law.

Potentia pro

terest.

this ease, may presume my assent; but this presumption, like 8 T. R. 483, every other, may be rebutted by evidence; and when parties or D. & E. assent, it is not material how the matters assented to, be placed Burghv. Presin writing; therefore, they may assent to a whole bond or deed, and make it binding, when at the time of the signing a part of it is written by, or in a memorandum, on the back of it. But some exceptions are made by the statute of frauds, &c. ART. 5. Matter of contracts and agreements. § 1. It is a set- So was the tled principle that one must have an actual, or potential interest in a thing to be able, by his contract, or agreement, to convey it, or dispose of it. If I own a piece of land, I can sell the grass that will grow on it next year; because I have it potentially. But I cannot sell the future crop of land I do not own. I canpinqua. not sell what I shall buy. I have it not myself, and I cannot Potential inconvey what I have not. I neither have it actually nor potentially. But I may by an executory contract, covenant, or engage to buy and convey the land; but this cannot enable the other party, legally, to recover the land; but only damages, if I fail to perform. So if I have only a condition, I cannot contract for the property or possession; as if I sell a ship to B, Conditional on condition he pay me $1000 in three months, I cannot, in the interest mean time, sell her to another; for I have only a condition, and such a sale is bad, though he fail to pay; that is, if I contract with C, in the mean time, that he shall have her at such a price, if B do not perform, and he does not, and I do not fulfil my contract with C, he can only have an action for damages against me for not performing, but never can recover the ship herself in replevin, or otherwise, as he would be able to do if my contract with him sold and conveyed the property of the ship to him-See below. And in every contract of sale it is asserted to fix the price. 14 Vesey 400. When the parties in any case reduce their contract to writing, all their previous parol agreements are viewed as included in it.

88, 98,

§ 2. Possibility. There are three kinds of possibilities; 1, a 2 Day's Ca. possibility coupled with an interest; this may be devised, trans- 137-3 T. R. mitted, or assigned, as an interest one has by executory devise, Jones v. Roe. this too will pass by descent; because the person has an in- -1 Burr. 228, terest in the lands known in law: so in contingent, spring--4 T. R. 39. ing, and executory uses. 2. A bare possibility, or hope of suc-10 Mod. cession, as of an heir, living his ancestor; this cannot descend, 419 to 425nor can it be assigned, devised, or even released the utmost

VOL. I.

13

-5T. R. 518.

3 T. R. 41.

CH. 1.
Art. 6.

5 Wood's

551.-Co. L.
72.-10 Co.
49. case of
Lampet.-
Fearne 58.
8 Co. 96.-
2 Bl. Com.
173, 290.-

2 Cro. 593

1 Com. D.

554-Gilb.

124-5 Bac.

So a

the heir can do, in respect to this, is to release to the tenant of the land, with warranty, and so bar or rebut himself by his own warranty. 3. A possibility, a mere contingent interest, as a devise to A if he survive B; here is a mere contingency; Con. 22, 23, and any estate A may have depends on a condition precedent, and if he die before B, nothing vests in A or goes to A's heir; nor has A any interest he can devise or assign, or any way transfer by his contracts. But this possibility A may release to the tenant of the land; as the wife's possibility to dower may be released, living her husband; as was decided in the sixth and seventh points in Lampet's case, 10 Co. 48. term for years is granted to A for life, remainder to B; B living, A has but a mere possibility, a mere contingent interest, 378. Co. L. and is good only if A die before the term ends, in the use or 264.-Shep. term itself; but during A's life B's executory interest cannot 288.-Stran. be granted to a stranger; but this possibility may be extinMod. 158 to guished by a release to him in possession: the reason is, the 163.-2 Wood grant to a stranger occasions suits and contentions; but the 120-3 Wood release to him in possession extinguishes them; and the many cases on this litigated point, seem to be reducible to this one principle; the release is good, and extinguishes the possibility, when made to one, who has an interest in the thing, in which the possibility is absorbed, whether in possession, remainder, or reversion, in privity, or otherwise; because in either way the 6 Cruise 523, possible interest is absorbed or extinguished, and being so, it cannot be the ground of litigation, as it might be, and often would be, if the law allowed it to be transferred to a stranger.

70, 132.-11

158-3 East

615.-4

Wood 43.

But. Fearne 401, 415, 548.-Cro.

El. 316.-5

East 162.

624, &c.,
Thellusson
v. Woodford
4 Vesey jun.
227 to 343.

6 T. R. 320.
-10 Mod.
412.

See Cutler

admx. v. Powell.

4 Co. 123.Beverly's case, but 3

Day's Ca. 90

held that

such a person may avoid

§3. So in personal matters, if a master agree to pay his mate $200 wages, provided he proceeds, continues, and does his duty from one port to another, as from Jamaica to London, and the mate dies on the passage, his administratrix can recover no part of the sum, or any wages; no interest could pass from the deceased mate to her as his representative, because none ever vested in him; but to the vesting of any, there was a condition precedent; to wit, his performing the voyage; nor had he any, he could, by contract, have assigned. No limited number of lives on which an executory interest vests. 4 Vejey jun. 313.

$1

ART. 6. Privies. § 1. Contracts, in many cases, are materially affected by privity. In Beverly's case it was resolved that a deed of a person non compos is voidable, yet he himself shall not avoid it; but that his privies in blood, as his heirs, or by representation, as executors or administrators might do it; but not privies in estate, as he in remainderor reversion, is to tenant for life; nor in tenure, as the feudal lord was to the tenant of the land. ing, ch. 35, a. The reason is, a man's deed or contract is his mere personal act; it binds him solely, because it has his legal assent, ex

her own deed.-See

the reason

6.

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