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the right of which is before vested in the party, and of which only possession is recovered by suit or action, and property, to which a man before had no determinate title or certain claim, but he gains as well the right as the possession by the process and judgment of the law. Of the former sort are all debts and choses in action, as if a man gives bond for L. 20. or agrees to buy a horse at a stated sum, or takes up goods of a tradesman upon an implied contract to pay as much as they are reasonably worth; in all these cases the right accrues to the creditor, and is completely vested in him, at the time of the bond being sealed, or the contract or agreement made; and the law only gives him a remedy to recover the possession of that right, which already in justice belongs to him. But there is also a species of property to which a man has not any claim or title whatsoever, till after suit commenced and judgment obtained in a court of law. Of this nature are,

1. Such penalties as are given by particular statutes, to be recovered on an action popular; or, in other words, to be recovered by him or them that will sue for the same.

2. Another species of property, that is acquired and lost by suit and judgment at law, is that of damages given to a man by a jury, as a compensation and satisfaction for some injury sustained: as for a battery, for imprisonment, for slander, or for trespass.

3. Hither also may be referred, upon the same principle, all title to costs and expences of suit;

which are often arbitrary, and rest entirely on the determination of the court, upon weighing all circumstances, both as to the quantum, and also (in the courts of equity especially, and upon motions in the courts of law) whether there shall be any costs at all. These costs therefore, when given by the court to either party, may be looked upon as an acquisition made by the judgment by law.

CHAPTER XXX.

OF TITLE BY GIFT, GRANT, AND CONTRACT.

We are now to proceed to the discussion of two of the remaining methods of acquiring a title, to property in things personal which are much connected together, and answer in some measure to the conveyances of real estates, being those by gift or grant, and by contract, whereof the former vests a property in possession, the latter a property in

action.

VIII. Gifts then, or grants, which are the eighth method of transferring personal property, are thus to be distinguished from each other, that gifts are always gratuitous, grants are upon some consideration or equivalent: and they may be divided with regard to their subject matter, into gifts or grants of chattels real, and gifts or grants of chattels personal. Under the head of gifts or grants of chattels real, may be included all leases for years of land, assignments, and surrenders of those leases,

and all the other methods of conveying an estate less than freehold.

Grants or gifts of chattels personal, are the act of transferring the right and the possession of them; whereby one man renounces, and another man immediately acquires, all title and interest therein, which may be done either in writing, or by word of mouth attested by sufficient evidence, of which the delivery of possession is the strongest and most essential. But this conveyance, when merely voluntary, is somewhat suspicious, and is usually construed to be fraudulent, if creditors, or others, become sufferers thereby.

A true and proper gift or grant is always accompanied with delivery of possession, and takes effect immediately. And, if the gift does not take effect, by delivery of immediate possession, it is then not properly a gift, but a contract; and this a man cannot be compelled to perform, but upon good and sufficient consideration.

IX. A contract, which usually conveys an interest merely in action, is thus defined; "an agreement upon sufficient consideration, to do or not to do a particular thing."

This contract or agreement may be either express or implied. Express contracts are where the terms. of the agreement are openly uttered and avowed at the time of the making, as to deliver an ox, or ten load of timber, or to pay a stated price for certain goods. Implied are such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform. As, if I employ

a person to do any business for me, or perform any work, the law implies, that I undertook or contracted, to pay him as much as his labour deserves.

A contract may also be either executed, as if A agrees to change horses with B, and they do it immediately; in which case the possession and the right are transferred together, or it may be executory, as, if they agree to change next week, here the right only vests, and their reciprocal property in each other's horse is not in possession but in action; for a contract executed (which differs nothing from a grant) conveys a chose in possession; a contract executory conveys only a chose in action.

Having thus shewn the general nature of a contract; we are, secondly, to proceed to the consideration upon which it is founded, or the reason which moves the contracting party to enter into the contract. And it must be a thing lawful in itself, or else the contract is void. A good consideration, we have before seen, is that of blood or natural affection between near relations: this consideration may sometimes however be set aside, and the contract become void, when it tends in its consequences to defraud creditors or other third persons of their just rights. But a contract for any valuable consideration, as for marriage, for money, for work done, or for other reciprocal contracts, can never be impeached at law; and if it be of a sufficient adequate value, is never set aside in equity, for the person contracted with has then given an

equivalent in recompence, and is therefore as much an owner, or a creditor, as any other person.

A consideration of some sort or other is so absolutely necessary to the forming of a contract, that a nudum pactum, or agreement to do or pay any thing on one side, without any compensation on the other, is totally void in law; and a man cannot be compelled to perform it. But any degree of reciprocity will prevent the pact from being nude; nay, even if the thing be founded on a prior moral obligation, (as a promise to pay a just debt, though barred by the statute of limitations) it is no longer nudum pactum. And as this rule was principally established to avoid the inconvenience that would arise from setting up mere verbal promises, for which no good reason could be assigned, it therefore does not hold in some cases, where such promise is authentically proved by written documents. For, if a man enter into a voluntary bond, or gives a promissory note, he shall not be allowed to aver the want of a consideration in order to evade the payment; for every bond, from the solemnity of the instrument, and every note, from the subscription of the drawer, carries with it an internal evidence of a good consideration. Courts of justice will therefore support them both, as against the contractor himself: but not to the prejudice of creditors, or strangers to the con

tract.

We are next to consider, thirdly, the thing agreed to be done or omitted. The most usual contracts, whereby the right of chattels personal

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