against them even without a fraudulent intent. It is equally the language of the modern civilians and of the English law, that donations cannot be sustained to the prejudice of existing creditors.b the donor, the property vests absolutely in the donee and no probate is required, and the wife may be that donee. Vect. Com. ad Pand. 39. 5. sec. 20. Pothier, Traité des Donations entre Vifs, sec. 3. art. 1. sec. 2. Toullier, Droit Civil Français, tom. v. p. 733. Smith v. Casen cited in 1 P. Wms. 406, note. LECTURE XXXIX. OF CONTRACTS. IN entering upon so extensive and so complicated a field of inquiry as that concerning contracts, we must necessarily confine our attention to a general outline of the subject; and endeavour to collect and arrange, in simple and perspicuous order, those great fundamental principles which govern the doctrine of contracts, and pervade them under all their modifications and variety.a I. Of the parties thereto. An executory contract is an agreement of two or more persons, upon sufficient consideration, to do or not *450 to do a particular thing. *The agreement is The latest and best Practical Treatise in the English law on the Law of Contracts not under Seal, is the one under that title by Mr. Chitty ; and the Philadelphia edition of 1834 is much improved, by notes and references to American cases, by Francis I. Troubat, Esq., of the Pennsylvania bar. A Treatise on the Law of Contracts, and Rights and Liabilities of Contracts by G. G. Addison of the Inner Temple in two volumes has since appeared, and is full and very comprehensive. 2 Blacks. Com. 442. Plowd. Rep. 17 a. Com. Dig. tit. Agreement, 1. A. The definition of a contract in the English law, is distinguished for neatness and precision. The definition in the Code Napoleon, No. 1101, is more diffuse. "A Contract," says that Code, "is an agreement, by which one or more persons bind themselves to one or more others, to give, to do, or not to do, some thing." This definition is essentially the same with that in Pothier, Traité des Oblig. No. 3. A contract, says Ch. J. Marshall, 4 Wheaton, 197, is an agreement in which a party undertakes to do or not to do, a particular thing. An able writer on contracts, in the American either under seal or not under seal. If under seal, it is denominated a specialty, and if not under seal, an agreement by parol; and the latter includes, equally verbal and written contracts not under seal. The agreement conveys an interest either in possession or in action. If, for instance, one person sells and delivers goods to another for a price paid, the agreement is executed, and becomes complete and absolute; but if the vendor agrees o sell and deliver at a future time, and for a stipulated price, and the other party agrees to accept and pay, the contract is executory, and rests in action merely. There are also express and implied contracts. The former exist when the parties contract in express words, or by writing; and the latter are those contracts which the law raises, or presumes, by reason of some value or service rendered, and because common justice requires it. Every contract, valid in law, is made between parties Jurist, for October, 1838, prefers this definition which drops the word "consideration," to that of Blackstone. But as an agreement, valid in law, necessarily requires parties, a sufficient consideration, and an object: all these essential members of the definition ought to be stated, or the definition is imperfect. A sufficient consideration is in the purview of the English law essential to the legal obligation of a contract, and the only difference between simple contracts and specialties is, that in the latter, the consideration is presumed, and so strongly, that the obligor is estopped by the solemnity of the instrument, from averring a want of consideration. See Infra, p. 464, note. In the Partidas, part 5. tit. 11. law 1, a promise is defined to be " a verbal agreement, mutually entered into between men, with an intention to obligate themselves, the one to the other, to give or to do a certain thing agreed upon." See the translation of the Partidas on Contracts and Sales, by Messrs. Moreau & Carlton, New-Orleans, 1820. The Partidas is the principal code of the Spanish laws, compiled in Spain, under the reign of Alphonso the Wise, in the middle of the 13th century; and it is declared by the translators to excel every other body of law, in simplicity of style and clearness of expression. It is essentially an abridgment of the civil law; and it appears to be a code of legal principles, which is at once plain, simple, concise, just and unostentatious, to an eminent degree. Rann v. Hughes, 7 Term Rep. 350, note. Ballard v. Walker, 3 Johns. C18. 60. having sufficient understanding, and age, and freedom of will, and of the exercise of it, for the given case. We have already considered how far infants and married women are competent to contract. The contracts of lunatics are generally void from the period at which the inquisition finds the lunacy to have commenced. But the inquisition is not conclusive evidence of the fact; and the party affected by the allegation of lunacy may gainsay it by proof, without first traversing the inquisition.b In the case of Baxter v. The Earl of Portsmouth, the K. B. went quite far towards annihilating, the plea *451 of lunacy in the case of fair dealing; for they held that the inquisition of lunacy was not admitted to form any defence, on the ground that the goods furnished by the tradesman were suitable to the condition of the defendant, and that he had no reason to suppose that the defendant was a lunatic. So in Niell v. Morley, the master of the rolls held, that a court of equity would not interfere to set aside a contract overreached by an inquisition of lunacy, if it was fair, and made without notice of the derangement.e The general rule is, that sanity is to be presumed until the contrary be proved, and therefore by the common law, a deed made by a person non compos is voidable only and not void; and when an act is sought to be avoided, on the ground of mental imbecility, the proof of the fact lies upon the person who alleges it. On the other hand, if a general mental derangement be once established or conceded, the presumption is shifted to the other side, a Attorney General v. Parkhurst, 1 Ch. Cas. 112. b Sergason v. Sealey, 2 Atk. Rep. 412. Faulder v. Silk, 3 Campb. N. P. Rep. 126. Baxter v. Earl of Portsmouth, 5 Barnw. & Cress. 170. S. C. 7 Dow & Ryland, 614. 2 Carr. & Payne, 178. Den v. Clark, 5 Halstead's Rep. 217. • See also, to S. P. Brown v. Jodrell, 3 Carr. & Payne, 30. 9 Ves. 478. The English act of August 4, 1845, contains judicious and humane provisions, relative to the care and treatment of lunatics. and sanity is then to be shown. The party himself may set up as a defence, and in avoidance of the contract, that he was non compos mentis when it was alleged to have been made. The principle advanced by Littleton and Coke, that a man shall not be heard to stultify himself has been properly exploded, as being manifestly absurd and against natural justice.c The rule formerly was, that intoxication was no excuse, and created no privilege or plea in avoidance of a contract; but it is now settled, according to the dictate of good sense and common justice, that a contract made by a person so destitute of reason as not to know the consequences of his contract, though his incompetency be produced by intoxication, "is void. This *452 Swinb. part 2. ch. 3. sec. 4. 7. Attorney General v. Parnther, 3 Bro. 441. Lord Erskine, in White v. Wilson, 13 Ves. 88. Jackson v. Vandusen, 5 Johns. Rep. 144. Ballew v. Clark, 2 Iredell's N. C. Rep. 23. Allis v. Billings, 6 Metcalf, 415. b Littleton, sec. 405. Beverley's case, 4 Co. 123. Co. Litt. 247. a. F. N. B. 202. D. Yates v. Boen, Str. Rep. 1104. Lord Holt, in Cole с v. Robins, Buller's N. P. 172. Webster v. Woodford, 3 Day's Rep. 90. Mitchell v. Kingman, 5 Pick. Grant v. Thompson, 4 Conn. Rep. 203. Rep. 431. Rice v. Peet, 15 Johns. Rep. 503. N. C. Rep. 23. In Baxter v. Earl of Portsmouth, supra, p. 450. n. c., Littledale, J., said, that a specialty might be avoided by plea of lunacy, if at the time it was executed the defendant was non compos mentis; but that the rule did not apply to the case of necessaries supplied to a person insane on some particular subject, and sound on others, though found by inquisition to have been of unsound mind when the contract was made. And in Brown v. Jodrell, 3 Carr. & Payne, 30 S. C. 1 Moody & Malkin, 105, Lord Tenterden would not allow a defendant to stultify himself in an action of assumpsit for work and labour, unless he could show imposition in consequence of mental imbecility. The point, whether unsound mind could be a defence in the case of an unexecuted contract, was expressly waived in the case of Baxter v. Earl of Portsmouth. The rule allowing defendant to stultify himself by plea, seems now to be confined to specialties. a Co. Litt. 247. a. Johnson v. Medlicott, cited in 3 P. Wms. 130. • Lord Holt, in Cole v. Robins, Buller's N. P. Rep. 172. Lord Ellen borough, in Pitt v. Smith, 3 Camb. Rep. 33. 1 Starkie's N. P. Rep. 126. Sir William Grant, in Cooke v. Clayworth, 18 Ves. 12. Wade & Massay VOL. II. 44 |