(the legal duty being in the nature of a consideration); indeed it is a promise that, even where nothing is expressed between the parties, the law itself (as we have before seen) will imply. We may remark too, in connection with this subject, that even a past liability will in some cases amount to a sufficient consideration to support an express promise: as if a man promises in writing to pay a just debt, barred by lapse of time (i), and the payment of which is consequently incapable (but for this promise) of being enforced either at law or in equity (k).

The consideration of "blood," that is natural love and affection, (though for some purposes deemed a good one (l),) will not suffice to sustain a promise (m); and the same may be said as to past considerations of a merely moral nature, binding on the conscience or feelings of the promiser, but not of a kind on which the law would raise any implied contract (n). And in every case in which either the consideration or the promise founded upon it is illegal, (whether as contrary to the express provisions of law or against its policy (o)), or of an immoral or fraudulent character, the contract is utterly void, and of no effect (p). It is also a rule that the consideration of a promise must

(i) Vide sup. p. 56. As to a debt discharged by bankruptcy, vide ib. n. (r).

(k) See 2 Bl. C. 445; Wennall v. Adney, 3 Bos. & Pul. 249; Meyer v. Haworth, 8 Ad. & El. 467; Monkman v. Shepherdson, 11 Ad. & El. 411; Eastwood v. Kenyon, ibid. 438.

(1) Vide sup. vol. 1. p. 499.

(m) See the authorities cited in the note to Wennall v. Adney, 3 Bos. & Pul. 251.

(n) See the authorities cited in note (k). Also Beaumont v. Reeve, 8 Q. B. 483. As to the cases in which

the law will raise an implied contract, vide sup. p. 56.

(0) Among the contracts against the policy of the law, are those in general restraint of marriage, or of trade, see Lowe v. Peers, 4 Bur. 2225; Mallam v. May, 11 Mee. & W. 653; Sainter v. Ferguson, 7 C. B. 716.

(p) See Shep. Touch. 164; Steel v. Brown, 1 Taunt. 381; 2 Saund. by Pat. & Will. 137 e; Moens v. Hayworth, 10 Mee. & W. 155; Fisher v. Bridges, 2 Ell. & Bl. 118; 3 Ell. & Bl. 642; Evans v. Edmonds, 13 C. B. 777; Feret v. Hill, 15 C. B. 207.

move from the promisee; in other words, it must be an act to be performed on his part or by his procurement, and not on the part or by the procurement of a stranger. Thus if there be an agreement between A. and B., for a sufficient consideration, as between themselves, that B. shall pay a sum of money to C., to whom B. promises accordingly to make such payment, yet C., being a stranger to the consideration, can maintain no action on the promise (7).

What has been now said as to simple contracts and promises, taken in connection with the maxims laid down as to the construction of deeds contained in a former volume (r), will suffice to give some idea of the law relating to contracts in general. There are some other rules, however, applying indifferently to all kinds of contracts, and to these we shall now briefly refer. They relate to the capacity of persons to contract, and to the construction and performance of contracts when made. Those which relate to capacity principally concern the condition of insanity, drunkenness, infancy, coverture, and duress. An insane person (whether he be an idiot who has had no understanding from his nativity, or a lunatic who by disease or accident has lost the use of his reason), and an infant, or person under the age of twenty-one, are, to a certain extent, in the same position; that is, they are chargeable on contracts for necessaries suitable to their station in life, and actually supplied to them without fraudulent intention

We

(q) Crow v. Rogers, Str. 592. (r) Vide sup. vol. 1. p. 501. may remark that what is stated sup. vol. 1. p. 484, as to the necessity of having a deed properly stamped before it can be used in evidence, applies also generally to written agreements not under seal, to bills, notes, &c. There are, however, certain exceptions, among which is that of an agreement when the subject matter is under 201. in value, or of an

agreement relating to the sale of goods and merchandize. The following cases on this subject may be consulted with advantage :-Rodwell v. Phillips, 9 Mee. & W. 506; Melanotte v. Teasdale, 13 Mee. & W. 216; Southgate v. Bohn, 16 Mee. & W. 34; Knight v. Barber, ib. 66; Sadler v. Johnson, ib. 775; Liddiard v. Gale, 4 Exch. 816; Chanter v. Dickinson, 5 Man, & G. 253; Martin v. Wright, 6 Q. B. 917.

on the part of the tradesman (s); but, subject to this exception, (which evidently tends to their advantage,) their contracts are not binding upon them in point of law;though it is competent to an infant to confirm in writing, after he attains majority, the promises that he made before (t). A person drunk, to the extent of complete intoxication, so as to be no longer under the guidance of reason, appears to be absolutely incapable, while that condition lasts, of entering into a valid contract (u). A married woman can, in general, neither bind her husband nor herself, by any contract, though the effect of an agreement with her will be in some cases to create a liability to him (x). And, lastly, a contract made under duress may be avoided by the person whose free will was thus restrained (y), though he has also an election, if he thinks proper, to insist upon it as a binding transaction.

The rules which govern the construction or interpretation of a contract, when made, have been so far anticipated in the chapter which relates to deeds (z), that it will suffice to refer the reader to that part of the work, and to remark, that the same laws of construction apply, in general, both to sealed and to unsealed agreements.

As a contract to do a thing illegal at the time when the agreement is made is void, so also the performance of a

Peters v.
Brooker

As to

(s) See Baxter v. Lord Portsmouth, 5 Barn. & Cress. 170; Harrison v. Fane, 1 Man. & G. 550; and authorities cited ibid. 551, (n.); Fleming, 6 Mee. & W. 42; v. Scott, 11 Mee. & W. 67. necessaries supplied to an infant's wife or husband, vide Chapple v. Cooper, 13 Mee. & W. 252. As to contracts entered into bonâ fide with lunatics apparently of sound mind, see Molton v. Camroux, 2 Exch. 487; 4 Exch. 17; Beavan v. Macdonnell, 9 Exch. 309; 10 Exch. 184.

(t) 9 Geo. 4, c. 14, s. 5; see Hartley v. Wharton, 11 Ad. & El. 934; Mawson v. Blane, 10 Exch. 206. Vide sup. p. 56; et post, bk.

III. C. IV.

(u) Gore v. Gibson, 13 Mee. & W. 625.

(x) See Meyer v. Haworth, 8 Ad. & El. 467; Philliskirk v. Pluckwell, 2 Mau. & Sel. 393; Reid v. Teakle, 13 C. B. 627; Reneaux v. Teakle, 8 Exch. 680. Vide post, bk. 111. c. II. (y) 1 Roll. Ab. 688; Atlee v. Backhouse, 3 Mee. & W. 650. As to duress, vide sup. vol. 1. p. 141. (z) Vide sup. vol. 1. p. 501.

:

contract is held to be excused, whenever, by a subsequent alteration of the law, such performance becomes. illegal thus if a man covenants to do a certain act, and afterwards, and before the time for doing it arrives, a statute is passed by which an act of that description is prohibited, the statute repeals the covenant (a). But, on the other hand, no excuse is in general afforded by the circumstance that what a man absolutely engaged to do has since become impossible, for it was his own fault to make an unconditional contract: thus if A. covenants with B. to enfeoff C., A. is not released from his covenant, though C. will not accept livery of seisin (b). Yet if the performance be hindered by the opposite party, the case of course is different, and the party making the engagement is excused: therefore in the example just given, the covenantor will be excused, if the livery was prevented by the act of the covenantee himself (c). Performance of a promise will also be excused whenever the promisee has failed on his part to perform the consideration; and independently of the law of promise and consideration, it is to be observed, that a contract, whether by deed or parol, often contains stipulations on both sides of such a nature that the performance of some act, by one of the parties, must be considered as a condition precedent to the performance of some act by the other, so that a breach in the prior obligation will excuse a breach in the posterior (d). But a particular clause in a mutual agree

(a) Ld. Raym. 321; Hadley v. Clarke, 8 T. R. 259.

(b) Co. Litt. 209 a; see per Ld. Kenyon, Cook v. Jennings, 7 T. R. 384; et vide 1 Shep. Touch. by Prest. 164; Hadley v. Clarke, 8 T. R. 267.

(c) Co. Litt. ubi sup. ; per Lord Kenyon, ubi sup. In the case of a penalty, subject to a condition, (as to which vide post, in this chapter,) the obligation will be discharged, not only where the performance is

prevented by the opposite party, but also where prevented by the act of God. Co. Litt. 206 a. But the latter kind of prevention seems to be no excuse in the case of a covenant or promise. Dy. 33 a; Bullock v. Domitt, 6 T. R. 650.

(d) As to the method of alleging, denying, &c., the performance of conditions precedent in pleading, on the contract being put in suit, see Steph. Lush's Pr. 287.

ment may also be of such a nature that the breach of it may not be sufficient to excuse the opposite party from performance on his side, though it will entitle him to an action for damages; and whether any given clause is to be construed in this latter mode, or as a condition precedent, turns less on any technical rule of interpretation (though many are to be found in the books (e)), than on the intention fairly imputable to the parties in each particular case; which will depend on a consideration of the tendency of one construction or the other, in point of natural reason and convenience (f).

In speaking of contracts, we have hitherto supposed them to be made between the principal parties themselves; but a contract, of whatever kind, may be entered into either by the parties in person, or by their agents lawfully authorized; a consideration that naturally leads us to take some notice of the relation of principal and agent.

An agent may be constituted, either by express appointment, or by implication of law, arising from the circumstances in which parties are placed (g). The appointment, when express, may in general be made by parol, and even without writing; though this is subject to exception in certain cases (h),—for where any lease of land for above three years, or any uncertain interest in land is to be created by an agent, or (except in the case of copyhold) to be assigned or surrendered by an agent, his authority

(e) 1 Saund. by Pat. & Will. 320; 2 ibid. 352; Stavers v. Curling, 3 Bing. N. C. 355.

(f) See Fishmongers' Company v. Robertson, 5 Man. & G. 198; Scott v. Parker, 1 Q. B. 809; Ireland v. Harris, 14 Mee. & W. 437; Macintosh บ. Midland Counties Railway, ibid. 548.

(g) An infant or a married woman may be an agent, their acts in that

capacity not being affected by their disabilities of infancy and coverture respectively. See Paley's Princ. and Ag. 2; Cotes v. Davies, 1 Camp. 485; Prestwick v. Marshall, 7 Bing. 565; Prince v. Brunatte, 1 Bing. N. C. 438; Lindus v. Bradwell, 5 C. B. 583; Smith v. Marsach, 6 C. B. 486. (h) Vide Paley's Princ. and Ag. 132, 2nd edit.