right and remedy do not follow each other, as in common cases, but accrue at the same time, and where, before judgment had, no man can say that he has any absolute property, either in possession or in action. Of this nature are:

1. Penalties by Particular Statutes. These are such, as may be recovered in an action popular, by him or them who will sue for the same. Such party obtains an inchoate, imperfect degree of property, by commencing his suit, but it is not consummated till judgment, for if any collusion appear, he loses the priority he had gained. But, otherwise, the right so attaches in the first informer, that the king, who before the suit could pardon, cannot, after action commenced, remit anything but his own part of the penalty.

The Informer's Rights. For, by commencing the suit, the informer has made the popular action his own private suit, and no power, but that of parliament, can release the informer's interest. This gift of a penalty is open therefore to the first occupant, who declares his intention to possess, by instituting his action and obtaining judgment to recover it.

2. Damages for an Injury. A species of property also acquired or 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, imprisonment, slander or trespass. Here the plaintiff has no certain demand until after verdict. After assessment of damages and judgment thereon, he instantly acquires and the defendant loses his right to a specific sum. The judgment does not so properly vest a new title in him, as to fix and ascertain the old one; it does not give, but it defines the right. The primary right to a satisfaction for injuries is given by the law of nature, and the suit is the means of ascertaining and recovering that satisfaction.

3. Costs and Expenses of Suit. These are often arbitrary, and rest entirely on the determination of the court, on weighing all circumstances, both as to the quantum, and also, in courts of equity especially, and upon motions in courts of law, as to whether there shall be any costs. These costs, when given, are an acquisition made by judgment of law.

CHAPTER XXX.-TITLE BY GIFT, GRANT AND CON.

TITLE BY GIFT OR GRANT.

TRACT.

How Distinguished. Gifts or grants, which are the eighth mode of transferring personal property, are thus distinguished from each other: Gifts are always gratuitous; grants are upon some consideration or equivalent. They are divided, with regard to their subject matter, into gifts or grants of chattels real, and gifts or grants of chattels personal.

Of Chattels Real. 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. A consideration, however slight, converts a gift if executed into a grant; if not executed, into a contract.

Of Chattels Personal. Grants or gifts of chattels personal are the act of transferring the right and 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 most essential.

Fraudulent Conveyances. But this conveyance, when merely voluntary, is somewhat suspicious, and is usually construed to be fraudulent, if creditors or others become sufferers thereby. By statute of Henry VII, all deeds of gift of goods, made in trust to the use of the donor, shall be void, because creditors of the donor might also be defrauded of their rights. And by statute of Elizabeth, every grant or gift of chattels, as well as lands, with an intent to defraud creditors or others, shall be void as against such persons to whom such fraud would be prejudicial, but as against the grantor himself, shall stand good and effectual; and all persons partakers in, or privy to such fraudulent grants, shall forfeit the entire value of the goods, one moiety to the king, and another moiety to the party aggrieved, and on conviction, shall suffer imprisonment for six months.

Delivery of Possession. A true and proper gift or grant is always accompanied with delivery of possession, and takes effect immediately. It is not in the donor's power to retract it, though he did it without any consideration, unless it be preju

dicial to creditors, or the donor was under legal incapacity, as infancy, coverture, duress or the like, or if he were imposed upon by false pretences, ebriety or surprise. But if the gift does not take effect, by delivery of immediate possession, it is not properly a gift, but a contract, which a man,can only be compelled to perform upon good and sufficient consideration.

TITLE BY CONTRACT.

Contract Defined. A contract, which usually conveys an interest merely in action, is defined to be an agreement, upon sufficient consideration, to do or not to do a particular thing.

Points to be Considered:

(1) The agreement. (2) The consideration. (3) The thing to be done or omitted, or the different species of contracts.

1. The Agreement. This is a mutual bargain, and hence there must be at least two contracting parties of sufficient ability to contract.

Assignment of a Chose in Action. In conformity with an ancient principle, the form of assigning a chose in action is in the nature of a declaration of trust, and an agreement to permit the assignee to make use of the name of the assignor, in order to recover the possession. Hence when a debt or bond is assigned over, it must still be sued in the original creditor's name, the person to whom it is transferred being rather an attorney than an assignee. But the king is an exception to the rule, for he might always grant or receive a chose in action by assignment, and the courts will protect the assignment thereof, as much as the law will that of a chose in possession.1

Express and Implied Contracts. This contract or agreement may be either express or implied. Express contracts are where the terms of the agreement are openly avowed at the time of the making. 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 man to perform work for me, the law implies, that I undertake to pay him as much as his labor deserves. If I obtain wares from a tradesman, without any agreement of price, the law concludes, that I contract to pay their value.

Question of Damages. There is one species of implied

1 Negotiable paper may be transferred, however, by simple endorsement, and suit thereon brought in the name of the holders.

contract, which permeates all contracts, conditions and covenants, that if I fail in my part of the agreement, I shall pay the other party such damages as he has sustained by my neglect or refusal. In short, almost all the rights of personal property, when not in actual possession, depend in a great measure upon contracts of some kind, or at least may be reduced under some of them. This indeed is the method taken by the civil law, which refers most of the duties and rights it treats of to the head of obligations ex contractu and quasi ex contractu.

Executed and Executory Contracts. A contract may also be either executed, as where the possession and right are transferred together; or executory, where the right only vests, and the reciprocal property is not in possession, but in action. A contract executed, which differs in no respect from a grant, conveys a chose in possession; a contract executory, only a chose in action.

II. The Consideration. This is the reason, which moves the contracting party to enter into the contract: "It is an agreement, upon sufficient consideration." The civilians hold, that in all contracts, express or implied, there must be something given in exchange, something that is mutual or reciprocal. The consideration must be lawful, or the contract is void.

Good Consideration. Good consideration is that of blood or natural affection between near relations. This consideration however may be set aside, when it tends to defraud creditors or other third persons of their just rights.

Valuable Consideration. But a contract for any valuable consideration, as for money, for marriage, for work done, or for other reciprocal agreement, can never be impeached at law, and if it be of sufficient adequate value, is never set aside in equity, for there has been an equivalent or recompense, and the party contracted with is therefore as much an owner or creditor, as any other persons.

Species of Valuable Consideration, 1. Do ut des, as when I give money or goods, on a contract, that I shall be repaid money or goods. Of this kind are loans of money on bond or promise of repayment, and all sales of goods, with contract express or implied.

2. Facio ut facias, as when I agree with a man to do his work for him, if he will do mine for me, or if two persons agree

together to marry, or to do any positive acts on both sides. Or to forbear on one side in consideration of something done on the other, or for mutual forbearance.

3. Facio ut des, when a man agrees to perform anything for a price, either specifically mentioned, or left to the determination of the law to set a value upon it, as when a servant hires himself for certain wages or an agreed sum of money, or is hired generally.

4. Do ut facias, which is the direct counterpart of the preceding, as when I agree with a servant to give him such wages, upon his performing such work.

Nudum Pactum. A consideration of some sort is so absolutely necessary to the formation of a contract, that a nudum pactum, or agreement to do or pay anything on one side, without any compensation on the other, is totally void in law, and no man can be compelled to perform it. The municipal law will not compel the execution of an agreement, for which no visible inducement was offered; on the maxim, ex nudo pacto, non oritur actio. But any degree of reciprocity will prevent the compact from being nude, and 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.

Proof of Promise. This rule was established to avoid the inconvenience that would arise from setting up mere verbal promises, for which no reason could be assigned, and does not hold in some cases, where such promise is authentically proved by written documents. For if a man enters into a voluntary bond, or gives a promissory note, he shall not be allowed to aver the want of consideration, in order to evade payment, and every note from the subscription of the drawee, carries with it internal evidence of a good consideration. Courts will support them both as against the contractor himself, but not to the prejudice of creditors or strangers to the contract.

III, The Thing Agreed to be Done or Omitted. A contract is an agreement, upon sufficient consideration, to do or not to do a particular thing. The most usual contracts, whereby the right of chattels may be acquired are:

1 A seal to any written contract or promise imports consideration.

2 If the action be brought by the payee of a promissory note, the maker may aver want of consideration; but if brought by an endorsee, a bona fide holder, for valuable consideration, without notice, no such defence avails.