Duty of Solicitor. under seal. of contract. of man to action, and not stained by moral turpitude or legislative AGREEMENTS. prohibition, will be deemed a sufficient consideration to support and induce the Courts to enforce an agreement (h), although by parol. And if the agreement be under seal, then, without there unless it be being any apparent consideration (i), or reason for its having been entered into, for if parties will deliberately bind themselves by a formal contract, they must abide by it, and are not to be let off on the plea that they had not a reasonable inducement for doing so. § 4. 3dly, The subject of the agreement must be legal, viz. it Lawful subject must be such as is not forbidden by the laws of religion, of morality, or of the land, to be done or omitted (k). If, therefore, it have a tendency to diffuse immoral or vicious principles (1), or to the commission or support of some immoral or vicious act or conduct (m), or the omission of some duty (n); or if it be prejudicial to the interests of the community, or welfare of society, as restraining the freedom of trade (0), or of marriage (p), it will be void. And it is the same in respect of agreements, which operate as an injury to third persons, not parties to the contract; as agreements having for their object to impose upon or deceive creditors, or others in anywise interested in the subject of the con (h) 1 Roll. Abr. 24. 26, 27. Williamson v. Clements, 1 Taunt. 523. 2 Stark. 230. Barber v. Fox, 2 Saund. 134., and cases there cited; and Longridge et al. v. Dorville et al. 5 Bar. and Ald. 117. Thornton v. Fairlie, 2 Moore, 397. (i) See Irons v. Smallpiece, 2 Bar. & Ald. 551, also cases collected, 1 Fonb. Eq. 2d Ed. 347. n. (f). (k) Morse v. Royal, 12 Ves. 371. (1) Dubost v. Berresford, 2 Campb. 511. (m) Girardi v. Richardson, 1 Campb. 348. 1 Bos. & Pul. 340. Bowry v. Bennett, 1 Campb. 342. Walker v. Perkins, 3 Burr. 1568, and see Armandale v. Harris, 2 P. Wms. 432. (n) Nerot v. Wallace, 3 Durnf. & E. 17. Kaye v. Bolton, 6. ib. 134. (0) 2 Marshall, 273. (p) Co. Lit. 206. b. Harteley r. Rice, 10 East, 22. Gibson v. Dickie, 8 Maul. and Selw. 463. AGREEMENTS. Duty of Solicitor. tract (q). And, above all, are void such contracts as are made relative to any thing prohibited by the statute law. As the statute 5 & 6 Ed. 6. c. 16., and 49 Geo. 3. c. 126., prohibiting the sale of public offices of trust (r). The statute 7 Geo. 2. c. 8., relative to stock-jobbing. 3 Hen. 8. c. 11., against practising as surgeon, &c. without licence (s). 9 Geo. 2. c. 37., against conveyances in mortmain (†). 12 Ann. c. 16., against the taking more than legal interest (u). 16 Car. 2. c. 7., 9 Ann. c.4., and 42 Geo. 3. c. 119., against gaming (v). 56 Geo. 3. c. 58, inflicting a penalty for selling pernicious drugs (w). For per Holt, Ch. J. (x), "every contract made for or about any matter or thing which is prohibited and made unlawful by any statute, is a void contract, though the statute itself doth not mention that it shall be so, but only inflicts a penalty on the offender, because a penalty implies a prohibition (y)." (4) Cockshot v. Bennette, 2 Durnf. and E. 763. Bryant v. Christie, 1 Stark. 329. 2 ib. 416. (7) See Layng v. Paine, Willes, 571. Palmer v. Bate, 2 Brod. & Bing. 673. Harrington v. Kloprogge, ib. 678. (s) Gremaire v. Le Clerc Bois Valon. 2 Campb. 144. Cannan v. Bryce, 3 Barn. & Ald. 179. Exp. Daniels, 14 Ves. 192. Steers v. Lashley, 6 Durnf. and E. 61. Booth v. Hodgson, ib. 405. (t) Doe v. Pitcher, 6 Taunt. 359. (u) Chesterfield v. Janson, 2 Black. Rep. 864. Stein, 4 Maul. & Selw. 192. 2 Ves. 125, 156. Carstairs v. (v) Simpson v. Bloss, 2 Marsh, 542. Clayton v. Dilly, 4 Taunt. 165. Edwards v. Dick, 4 Barn, and Ald. 212. (w) Langton v. Hughes, 1 Maul. and Selw. 593, &c. &c. (r) Bush v. Coles, Carth. 232, 252. (y) Cannan v. Bryce, 3 Barn. and Ald. 179. 5 ib. 335. 1 Taunt. 136. Langton v. Hughes, 1 Maul. and Selw. 595. § 4. The parties must, at the time, have full and reciprocal AGREEMENTS. knowledge of their respective rights relative to the subject of the contract, or of the doubts which may subsist, concerning such right (z). Duty of Solicitor. Knowledge of their rights. § 5. And lastly, there must be a physical possibility of perform- Possibility of ing the stipulations agreed upon (a). performance. ment. § 6. With respect to the form of the agreement itself, it is to Form of agreebe observed, that 1st, It must, in most cases, be in writing, for, by the statute of 29 Car. 2. c. 3. s. 4., (usually called the Statute of Frauds) it is enacted, that no agreement tending to charge executors or administrators with damages out of their own estate, or to charge any person with the debt or default of another; or to charge any person on a consideration of marriage; or relative to the sale of any lands, tenements, or hereditaments, or any interest therein; or relative to any matter not to be performed within a year from the making, shall be valid, unless it be in writing, and signed by the party to be charged therewith, or some person by him lawfully authorized. § 7. And by § 17. of the same act, it is provided, that no contract for the sale of any goods, wares, or merchandize for the price of 101., or upwards, shall be good, unless the buyer accept and receive part of the goods sold, or give something in earnest, or unless some note or memorandum in writing of the bargain be signed as above. § 8. An agreement when in writing, may be poll; i. e. plain, straight, or even at the top: or indented, i. e. cut at the top in a tooth-like or undulating form; and under the seal of the parties, or their signature only. Where agreements are under the seal of the parties (whether indented or not), they are called special contracts; Must in most writing. cases be in As to agree ments for sale of goods. Difference bements indented and poll. tween agree (≈) Meale v. Webb, 1 Brow. Ch. Ca. 308. Caun v. Cann, 1 P. Wms. 726. (a) Co. Lit. 206. a. n. (1). Duty of Solicitor. AGREEMENTS. and where under the signature only of the parties, parol or simple contracts. The difference between agreements so made, is generally speaking, (for we cannot in the short essays here proposed, enter into very nice distinctions), (b) that where they are indented, their phraseology if at all ambiguous, is construed as if proceeding from both parties; but where poll, as proceeding from that party only from whom they appear more especially to move. This distinction is, however, less regarded at the present day than formerly, every instrument being now so construed as to give effect to the real meaning of the parties, where it can be discerned, in whatever form it may be expressed. Difference between agreements under § 9. And where the agreement is under the seals of the parties, it is construed with greater strictness, as well between the scal or by parol. parties themselves, as against them with respect to third persons, because on account of the solemnity with which it was entered into, it is supposed to have been concluded upon after more mature deliberation; whilst agreements under the hands only of the parties are more liberally construed, on the presumption that they may have been entered into instanter, and without previous reflection; for which reason, likewise, agreements under hand only require, as we have before observed, a consideration or reasonable motive to support them, lest either party be led to enter into an agreement unadvisedly and without a sufficient cause; whereas where an agreement is under seal, it is binding without any consideration or motive appearing (c). An agreement under seal, moreover, binds the heir of the party if he be named (d), whilst agreements by parol bind his personal representatives only. And lastly, an action may be sustained upon a contarct under seal after the lapse of an indefinite (b) These will be found in the Elements of Conveyancing, see vol. iv. p. 59. 2d Ed. (c) Ante p. iii. 1 Fonb. Eq. 347. n. (ƒ) 2d Ed. (d) 2 Saund. 7. n. 4. ib. 136. Wilson v. Knubley, 7 East. 128. 3 Smith, 123, &c. period (e); whilst actions upon contracts not under seal, must be AGREEMENTS brought within six years after the cause arose (ƒ). Duty of Solicitor. results. § 10. The practical inferences from the above distinctions are, 1. That agreements need not in any case be indented, although where Practical intended to be under the seals of the parties, they frequently are, with a view of giving them a greater appearance of form and solemnity. no 2. That where no consideration or reasonable motive, or lawful or sufficient one for the parties entering into the contract is apparent; where it is of such a nature that the real as well as the personal representatives ought to be bound; or where the circumstances of the agreement are such that any failure in the performance by either party may not be known within six years from the time of default, it will be very proper that it should be under seal. 3. But that where the consideration or motive for entering into it is apparent, and at the same time legal and moral; where the personal representatives only are intended to be bound; and where no danger exists of any breach of contract being concealed for a period of six years from the time of its commission, the signature alone of the parties may be deemed sufficient. § 11. As to the formal parts or structure of an agreement in writing, that which is usually adopted is, first to name the parties with their respective additions and places of residence, in order of the formal agreement. parts of an that they may be had recourse to on the subject of the contract if necessary. Secondly, it is usual and proper, (although not essential) that the agreement should have a short recital leading to the subject matter of it; as recitals serve in legal as well as common Recitals. construction to control, extend, or explain the meaning of any |