Deeds Poll and Indentures. Such, then, being the essentials of a deed, writing on paper or parchment, sealing, and delivery, it is right to add that, for the sake of convenience, deeds are divided into two classes, Deeds Poll and Indentures; a Deed Poll being (as Littleton informs us, at sect. 370.) "that "which is executed by one party only: an In ،، denture, by several contracting parties.” The names indeed of Deed Poll and Indenture were, as you probably all know, derived from the circumstance that the former was shaved or polled, as the old expression was, smooth at the edges, whereas the latter was cut or indented with teeth like a 'saw, for, in the very old times, when deeds were short, it was the custom to write both words on the same skin of parchment, and to write a word in large letters between the parts, and then, this word being cut through sawfashion, each party took away half of it; and, if it became necessary to establish the identity of the instrument at a future time, they could do so by fitting them together, whereupon the word became legible. However, this, though the origin of the word indenture, has become a mere form : and though, as you are all aware, such instruments are still indented by nicking the edge of the parchment, not teethwise, but in an undulating line, that is a mere form, and might be done in Court during the progress of a trial, if it had been forgotten till then. There are one or two peculiarities in the ques tion of a contract made by deed, which, as they apply to all contracts by way of deed, this is the proper place to notice. "I, of Contracts In the first place, a Contract by Deed requires Consideration no consideration to support it; or perhaps it might by Deed. be more correct to say that the law conclusively presumes that it is made upon a good and sufficient consideration. The importance of this arises from the strong line of distinction it creates between Contracts by Deed and Simple Contracts. For a simple contract, that is, a contract by words or by writing not under seal, requires, as I shall hereafter have occasion to explain more at length, a consideration to support it and give it validity. For instance, suppose a written promise in these words: A. B., promise C.D. that I will pay the debt he owes to E.F." This promise would be absolutely void, unless it could be shown to have been made in consideration of something given to A. B. for making it; for it would be a promise by him to undertake a liability without any consideration or recompence whatever; and, if he neglected to perform it, no action would lie against him, for the maxim ex nudo pacto non oritur actio would intervene for his protection. But if to that very instrument, conceived in those very words, the additional solemnity of sealing and delivery were added, so as to make it a deed, it would become a good and binding covenant on which an action might be sup Illegality or Consideration will avoid a Deed. ported (see Fallowes v. Taylor, 7 T. R. 475.): and this is on account of the greater formality and Immorality of solemnity of such an instrument. But, here again, you must observe another well-known and important distinction, namely, that, though it is not necessary to show on what consideration a deed is founded, the party sued on it is always, on his part, allowed to show that it was founded on an illegal or immoral consideration, or that it was obtained by duress or by fraud; for, were the law otherwise, deeds would, to use the expressions of Lord Ellenborough, be made use of as covers for every description of iniquity. It is therefore a well established proposition that a deed may be invalidated by showing that it is tainted by such circumstances. (See Collins v. Blanterne, 2 Wils. 341.) And it signifies not whether the illegality objected to it be a breach of the rules of Common Law, or consist in the contravention of the provisions of some statute. Thus, in Collins v. Blantern, the consideration was the compromise of an indictment for perjury; in Coppock v. Bower, 4 Mee. & Welsb., 361. the compromise of an election petition; in Hindley v. M. of Westmeath, 6 B. & C. 200., a future separation between husband and wife ; and see Jones v. Waite, 5 Bing. N. C. 341. (a) In Bonds for cohabitation. (a) Bonds given in consideration of continuing cohabitation are void, but not for past cohabitation, or for the maintenance of the offspring of such intercourse: the rule is that wherever the nature of the contract gives either these cases the illegality consisted in the infringement of the rule of Common Law, which looks upon such contracts as improper. In other cases, as I said, the contravention of a statute has been held equally fatal; as in Colborne v. Stockdale, Str. 493. and Mazzinghi v. Stephenson, 1 Camp. 291.; of the statutes against gaming, in Levy v. Yates, 8 Ad. & Ell. 129.; of the acts for licensing playhouses, and a great variety of examples might be given; but these are sufficient to esta blish the principle that, though a man cannot defend himself from liability upon his contract made by deed by saying that there was no consideration for it, he may by saying that there was an illegal one; nay, if there were several considerations, and any one of them was illegal, it avoids the whole instrument; for it is impossible to say how much or how little weight the illegal portion may have had in inducing the execution of the entire contract. (See Waite v. Jones, 1 Bing. N. C. 662.; Shackell v. Rosier, 2 Bing. N. C. 646.) Though it is just the reverse where the consideration is good, and there are several covenants, some legal, some illegal; for then the illegal promises alone will be void, and the legal ones valid. (See Gaskell v. King, 11 E. 165.; How v. Synge, 15 E. 440.) (a) party a motive to continue the connection it is void, because it is turpis contractus, but not otherwise: Hall v. Palmer, 3 Hare, 532. (a) "Where the condition Estoppel. The next peculiarity of a contract by deed is its operation by way of estoppel; the meaning of which is, that the person executing it is not permitted to contravene or disprove what he has there asserted, though he may where the assertion is in a contract not under seal. A good example of this is the case of a receipt. A creditor who has given a receipt not under seal is nevertheless permitted to prove that he has not received the money; (Graves v. Key, 3 B. & Ad. 313.; Stratton v. Rastall, 2 T. R. 366.)(a); but of a bond is entire, and the within the distance of six hundred miles from the same respectively," was held divisible, and that the plaintiff could recover on that part of the covenant which related to London and Westminster, though the latter was void as an illegal restraint of trade; Green v. Price, 13 M. & W. 695. (a) Partners also are not concluded by the receipts of a co-partner if fraudulently given. (See Farrar v. Hutchinson, 9 Ad. & Ell. 641.) And where a release is valid in law and invalid in equity, and is a fraud on third persons, the courts of law will set it aside; but in order to call upon the Court to exercise this equitable jurisdiction, it must be made out manifestly |