formed the groundwork of the doctrine of uses, and appears to have been pushed by courts of equity far beyond its proper limits. In the early periods of our legal history, for example, a gift or grant of land, or, as it was called, after the introduction of feuds, "a feoffment," (from the verb feoffare or infeudare, to give one a feud or fee,) preceded or followed up by livery of seisin or delivery of the possession of the land to the grantee or feoffee in the presence of witnesses, operated as a complete transfer of the property so as to give the grantee or feoffee the possession of the land or the feud, and the enjoyment of the rents and profits thereof. After the introduction of uses, however, it was held that if there had been no consideration for the feoffment, there was a resulting use for the benefit of the grantor, although the feoffment was made by deed, so that the grantee or feoffee was no longer seised of the land to his own use, but was compelled by the Court of Chancery to hold the land for the benefit of the grantor, and was made accountable to the latter for the receipt of the rents and profits, " and the reason," we are told, "seems to be this: When a man made a feoffment in fee without consideration, whereby the feoffee come into the land for nothing, it was thought very reasonable and equitable that the feoffee coming to a considerable estate, without giving anything in exchange for it, should stand seised to the use of the feoffor; it not being imagined that any man would give away an estate without any consideration for it." (h) The result of this profound doctrine has been to render a gift of land through the medium of the ancient charter of feoffment with livery of seisin of no legal force or effect at all; for, by the statute of uses, (27 Hen. 8, chap. 10,) the legal estate, the very instant that it reaches the feoffee, follows the resulting use to the feoffor, and being united to that according to the statute, the feoffor is seized precisely as before! (i) But here again, if the use is declared upon the face of the deed, the equitable doctrine of the resulting use is at once. rebutted, for nothing can be intended contrary to the deed. (k) If, therefore, the feoffor, by express words in the deed, gave the land to the feoffee and his heirs to the use of the feoffee and his heirs, then the right to the land was in the feoffee" by reason of the express use contained in the deed;" () and the latter became immediately, by force of the statute, complete owner, both at law and in equity!

(h) Gilbert on Uses by Sugden, p. 415, 416; Sheppard's Touchstone, chap. 24; Villers v. Beamont, Dyer, 146 b.; Vin. Ab. Uses, (F.) (G. 4.)

(i) Vin. Ab. Uses, (X. a) (Y. a.)

(k) Gilbert ut sup., p. 110, 415, 416; Bacon, p. 14; Tippen v. Cozen, 4 Mod. 381; 1 Raym. 33; Sanders on Uses, 203.

(1) Anderson, p. 37, xcv.

CHAPTER II.

ON SIMPLE CONTRACTS AND THE CONSIDERATION

NECESSARY TO SUPPORT THEM.

SECTION I. Of the nature of a Simple Contract-A valuable consideration essential to its validity -Gratuitous promises-Nuda pacta-Gifts-Insufficient and nugatory considerations-Illegal and void considerations-Failure of the consideration.

SECTION II.-What amounts to a valid consideration-Acts of omission and commission-Works and services—Services and benefit rendered to a third party at the request of the promisor—A bygone act or service performed, or rendered pursuant to his previous request-The forbearance or suspension of a legal right-The abandonment of a doubtful claim-Trust and confidence reposed in the promisor-Mutuality of contract and obligation –Contracts founded upon mutual promisesContracts between adults and infants-Contracts of sale-Contracts of marriage-Of the assent of the parties-Distinction between mere offers and proposals and a definitive contract-Offers of marriage-Offers of sale and purchase-Biddings at auctions.

SECTION I.

NATURE OF A SIMPLE CONTRACT.

THE solemnity and deliberation with which, on account of the ceremonies to be observed, deeds are presumed to be entered into, attach to them an importance and a character which do not belong to a simple contract, and many differences and distinctions consequently exist in the rules and principles of law regulating the right of action upon the one class of contracts and the other.

Simple contracts are, as before mentioned, promises or agreements made either by word of mouth or put into writing and signed by the parties to them, but not sealed nor delivered. As contracts of this nature are lightly made, and frequently entered into without thought or deliberation, courts of law have wisely declined to give effect to them, unless there be some consideration, good cause, or sufficient motive in law, for their compulsory fulfilment. The party making the promise must have obtained some advantage, or the party to whom it is made must have suffered some loss, or sustained some injury and inconvenience, in consequence of the

C

one party making, and the other accepting the promise; and this rule has been wisely established by the law for the purpose of protecting weak and thoughtless persons from the consequences of rash, improvident, and inconsiderate engagements. (a)

When, indeed, the advantage is all on one side, the transaction is naturally regarded with doubt and suspicion, and when we reflect upon the hasty and imprudent promises and declarations which are frequently made, on the imperfection of language, the loose way in which people are apt to express themselves, and the misconstruction and misunderstanding which consequently ensue, we must admit that it is right and proper that courts of law should decline to enforce mere gratuitous promises, unless the parties take care to clothe them with those solemn legal formalities which are presumed to manifest due deliberation and reflection.

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"The enforcement of such promises," observes Lord Denman, 'by law, howevever plausibly reconciled by the desire to effectuate all conscientious engagements, might be attended with mischievous consequences to society, one of which would be, the frequent preference of voluntary undertakings to claims for just debts. Suits would thereby be multiplied, and voluntary undertakings would also be multiplied, to the prejudice of real creditors. The temptations of executors would be much increased by the prevalence of such a doctrine, and the faithful discharge of their duties be rendered more difficult." (b)

There are many rights and duties of moral obligation," also observes Dr. Story," which the law does not even attempt to enforce. It deems them of imperfect obligation, and therefore leaves them to the conscience of the individual. And, in a practical sense, there is wisdom in this course; for judicial tribunals would otherwise be overwhelmed with litigation, or become the scenes of the sharpest conflict upon questions of casuistry and conscience. It is a fundamental principle of the common law that a valuable consideration is necessary to support every parol contract, and the importance of such a consideration is never lost sight of except in solemn instruments under seal. A gratuitous promise not under seal, is therefore absolutely void; it has no legal existence or power." (c)

Gratuitous promises and undertakings not clothed with the formalities prescribed by the civil law to render them legally binding, were, as we have already seen, termed naked engagements, and did not induce any legal right. They were thus defined by the civilians.

(a) Tantum meminerimus, distinguendas esse promissiones serias, meditatas et utiles, ab inconsideratis, temerariis atque inutilibus, cùm quis non dispositive, ut loquuntur, nec serio, sed vel narrativé, vel per jocum, et aliud agens aliquid

pronuntiat, ut ex illis tantum, non ex his obli-
gatio et actio narratur.- Vinnius, p. 661.
(b) Eastwood v. Kenyon, 11 Ad. & E., 450,

451.

(c) Story on Bailments, 120, 121.

"A naked promise is, that where no cause for the undertaking exists beyond the mere undertaking itself, but where a cause for it is conjoined with the undertaking, then it becomes a binding obligation, and an action will lie." (d)

Bracton, who wrote temp. Hen. III., is the first of our lawyers who marks the distinction as existing in the English law. He treats of naked contracts and contracts clothed with a consideration, and advocates, in the language of the civilians, the well-known principle "ex nudo pacto non oritur actio." (e)

In "Doctor and Student" it is observed, "A nude or naked promise is where a man promiseth another to give him certain money such a day, or to build a house, or to do him such certain service, and nothing is assigned for the money, for the building, nor for the service; these be called naked promises, because there is nothing assigned why they should be made; and I think no action lieth in those cases, though they be not performed. Also if I promise to another to keep him such certain goods safely to such a time, and after I refuse to take them, there lieth no action against me for it; for if the promise be so naked, that there is no manner of consideration why it should be made, then is a man not bound to perform it, for it is to suppose that there was some error in the making of the promise." (f)

So in Sheppard's Touchstone it is observed, "If a man do by his DEED, under his hand and seal, bargain and sell goods and chattels without any consideration at all, the same may pass well enough; for when there is the solemn act of a DEED, no express consideration is, as between the parties required, but if the contract be by word of mouth or by writing not sealed and delivered, if there be no consideration or no good consideration for it, it is of no effect at all. And therefore, if a man by word of mouth sell to me his horse, or any other thing, and do not deliver the horse, &c., and I give him or promise him nothing for it; this is void, and will not alter the property of the thing sold." (g)

A father made a parol gift of some colts to his son, but kept them in his own possession until the day of his death. The son brought an action against the executors for the colts, but it was held that as there had been no delivery of them to the son, and no change of possession, the pro

(d) Nudum pactum est ubi nulla subest causa præter conventionem; sed ubi subest causa, fit obligatio, et parit actionem.-Plowd. 309 a., Vinnius, p. 659.

(e) Pacta et conventa nuda sunt aliquando, aliquando vestita, quæ si nuda fuerint, exinde

non sequitur actio, quia ex nudo pacto non nascitur
actio. Bracton de legibus, lib. 3, cap. 1, fol.
99; ed. 1569.

(f) Doctor and Student, Dial. 2, chap. 24.
(g) Sheppard's Touchstone by Preston, p. 224,

225.

perty in them remained unaltered. "In order to transfer property by gift," observes Abbott, C. J., " there must either be a DEED or instrument of gift, (under seal,) or there must be an actual delivery of the thing granted to the donee." (h)

By the civil law all gifts exceeding the value of five hundred crowns were required to be publicly registered at the time of the making of the gift, that men might not part with their property rashly or make pretended gifts to DEFRAUD their creditors. (i)

NUDA PACTA.—If one man promises to give another £100, or to perform certain work for him, such as to build or repair a house, without stipulating for any payment or compensation in return, the undertaking is a nudum pactum, as the advantage is all on one side, and nothing is contracted to be done or given on the other; but it is otherwise if the man actually enters upon the work and leaves it unfinished. (k) Α promise by one man to pay a debt already incurred by another is a nudum pactum, and so also is a promise by a creditor to accept less than the full amount of an ascertained debt, or to give time for the payment thereof. Thus, a receipt signed by the plaintiff for the sum of 177. 10s. Od, in full satisfaction and discharge of a debt of 507., was held to be totally inoperative. "It cannot be pretended," observes Lord Ellenborough, "that a receipt of part only, though expressed to be in full of all demands, must have the same operation as a release under seal. It is impossible. that acceptance of 177. 10s. Od., is an extinguishment of a debt of 501. There must be some consideration for the relinquishment of the residue: something collateral to show a possibility of benefit to the party relinquishing his further claim, otherwise the agreement is nudum pactum." (1)

A promise to pay money to a person not entitled to receive it, is a nudum pactum, and no action will lie for the non-performance of the promise.(m)

If an heir promise to pay the bond of his ancestor, when the heir is not bound by the bond, this is a nudum pactum, and cannot be enforced. So, also, is a promise by a widow to pay her husband's debts, or to pay a note given by her when under coverture (n)

A promise, on the abandonment of an immoral connexion with a woman,

(h) Irons v. Smallpiece, 2 B. & Ald. 551. By the civil law gifts were required to be publicly registered.

(2) Cod. lib. 8, tit. 54. Dig. lib. 42, tit. 8. (k) Elsee v. Gateward, 5 T. R. 143, 148. (1) Fitch v. Sutton, 5 East. 232. Lodge v. Dicas, 3 B & Ad. 611, 615. Pinnell's case, 5

Co. 117 a. 117 b. Cooper v. Phillips, 1 C. M.

& R. 649.

(m) Clay v. Willis, 1 B. & C., 364.

(n) Barber v. Fox, 2 Saund. 135, 137, h. 1. Vent. 159, s. c. Loyd v. Lee, 1 Str. 94. Goodwin v. Willoughby, Latch 142, Poph. 177, s. c. Fabian v. Plant, 1 Show. 178.