officers, &c. These and such other covenants were made binding the parties (major owners) to act in a way to deprive the other owners of all control in managing the ship. Held, though the part of the covenant sued was in itself legal, yet the deed being thus illegal and void, the covenant sued was void also. The principle of this case, though often violated or disregarded, is a sound one, for when several persons own a portion of property, as a ship, &c. it is the right of all and each one that every one remain in a situation to act fairly and impartially and to exercise his best judgment, and of course not to bind himself voluntarily by his contracts so as to be thereby obliged to act otherwise, and so the court held the contract void, as being contrary to the interest of the other owners, and that no one of the concerned is 'to fetter his judgment,' not only as to part owners, but officers, seamen, and all concerned in the ship; also such contracts are against public policy. I. CH. I. Art. 7. Con. 7. A promise made to three, on a consideration moving ART. 8. from them and a fourth person, is valid. 2. If a mere ideal Con. danger, as to pay to one who has no legal claim, is the consid- 3 Pick. R. 83eration of the promise, it is void. 95, Cabot and others v. In a deed, when the good consideration can be separated Haskins & al. from the bad, the court will do it; and evidence dehors may be 3 Rand. 12. applied. Cited Collins v. Blantern, and other cases. A moral duty is the ground of an actual promise. 2 Nott & Mc Cord, 45, 65, 153. 1. Con. So the suspension or waiver of a legal right at ART. 10. the request of another person, is a good consideration for his Con. promise. 2 N. H. Rep. 97-102. man in error. So giving up a bargain may be a valuable consideration, &c. 4 Barn. & Assumpsit. The plt. stated he had agreed with J. E. to Cres. 525-529, buy certain houses of him at a price named, and that the deft., Price v. Seain consideration the plt. would sell and give up to the deft. the said bargain, and suffer him to purchase, &c. promised to pay £40. Plt. averred he did give up, &c. and the deft. did purchase, &c., but had not paid the £40, &c. Verdict for the plt. and held it must be presumed, after verdict, that the bargain 2 Bing, 437.between the plt. and J. E. was in writing, and that the giving 1 Ld. Raym. &c. was a sufficient consideration of the promise. 2 W. Bl. 820. 662. up, 3. Defect of consideration how cured, &c. If A convey ART. 12. land to B without consideration, the conveyance is not void as to Con. creditors; if afterwards, B convey to C for a valuable consideration and without notice, the land passes to the bona fide purchaser as C is. 4. If part of an entire contract be void under the statute of frauds, the whole is void. When the sheriff has sold the debtor's land, and before he gives the deed, though the naked fee remains in the debtor, he has no interest that can be a con I. CH. 1. sideration of a contract. Hence if he, in that intermediate time, contract by parol to sell the land to A for a certain sum, the contract is void, and the sum not recoverable: 1. There is no consideration: 2. The case is within the statute of frauds. As Van Alstine v. to void in part, the court cited Lord Lexington v. Clarke and wife, 2 Ventris, 223. She promised to pay £260: £160 was Cowen, 162, the debt of another, £100 her own; her promise was not in writing, so void as to the £160 by the statute of frauds, hence void in toto. Wimple, 5 165. Miller v. Wat 195-197. 5. A buys land of B with warranty, and pays him the son, 5 Cowen, price. B confesses the title fails, and promises to repay the same, &c. A cannot have assumpsit therefor, but must sue on the covenant, there being no eviction, there is no consideration for the promise: 2. When a debt is secured by deed or record, a promise to pay is void. The deed contained no covenant but that of warranty on which no action lies without eviction. So no obligation to pay when he made the promise, and if then bound to pay, he was bound by deed, and when bound by deed to pay or perform, he cannot be bound to do the same thing by parol or simple contract. ART. 17. 1 Hop. Ch. -2 28. 1. Con. A mere voluntary courtesy is not a consideration to support a promise unless moved by the deft's. request, and the request be pursued. Much less can I do one a favour and John's R. charge him against his will, and especially if he dissent. § 2. Con. No action lies in the father's lifetime for the son's services; but it seems if he dies without providing in his will for the plt. he may be entitled to a quantem meruit for his services after his father's death; son being of age, when he did the work and so entitled to his earnings. 13 Johns. R. 379. ART. 22. ART. 25. 17 Mass. R. § 1. Con. An infant under twenty one years of age is not bound by a contract of marriage; but it seems it is only voidable, hence he may sue the other party if of age, &c. 5 Cowen, 475, 471, Hunt v. Peake. § 1. Con. Held, on much consideration, a promise to pay the debt of another, in writing by him who means to be bound, is a sufficient compliance with the statute of frauds, though the ard v. Richard-consideration on which the promise is founded, is not recited in the writing. See also ch. 9, a. 20. 33; ch. 11. a. 13. 5, 6, 7. Vol. I. 122-144, Rich son & al. 2 Barn. & ART. 25. § 4. Debt on bond. This case proves where the first foundation of a contract is illegal, as stock jobbing, &c. remote contracts thence arising are also illegal and void; as, in this case, the deft's. agent in stock jobbing, incurred a debt of £500, and gave his note, and being threatened to be sued on it, gave the bond in question. Held illegal and void. § 5. Con. Assumpsit by Toler v. Armstrong for money duties, Toler paid as surety on account of goods of Armstrong and I. CH. 1. Art, 25. error v. Toler. others, consigned to Toler, and seised and libelled in the District Court of Maine in 1814, as having been imported contrary to law. Judgment for Toler. Held, a contract growing immediately out of, and connected with, an illegal and immoral act, was not to be enforced by a court of justice. 2. So if it 11 Wheat. 257 be only such in part, and a new contract, if tainted with the old -259, Armtaint. 3. Otherwise of a contract entirely distinct and with strong plt.in a new consideration, though known to him to whom made, and though he contrive and conduct the illegal acts, as importing goods from an enemy's country of his own in time of war. The goods were condemned, and Toler paid the appraised value, and sued to recover back the money. Near one hundred cases cited, most of them to be found in this work. The court cited Faikney v. Reynous; Petrie, ex'r. v. Hannay, &c.: see these cases ch. 9. a. 16. 1. Vol. 1. Court also cited Farmer v. Russell. See ch. 9. a. 10. 5, and Clugas v. Penaluna, ch. 9. a. 16. 6. and Steers v. Lashley, ch. 9. a. 16. 2, and Booth v. Hodgson, ch. 9. a. 16. 3. Chief Justice Marshall critically examined these cases, also the case before the court. See many more such cases in this work, especially in ch. 9., and more especially in articles 10 and 16. The result of all seems to be thus: 1. If A be concerned in an illegal transaction, as smuggling, and B by act, consent, or connivance, &c. any way take a part in it, and then advance to, or pay money for A, as the duties, &c. B cannot recover. 2. If B do not so take a part, or participate, in the illegal part of the transaction, or do, or say anything to encourage or promote it; but after the illegal part is terminated, and independent of it, and on a new consideration, B advance to, or pay monies for A, or becomes his surety, as for duties on goods, A of himself alone had smuggled, &c. B may recover from A. The same principles apply as to immoral acts or transactions. § 2. Con. A promissory note, for value received, was made ART. 31. in favour of a child nine years old. The payee sued the maker's Con. executors: no evidence of consideration was given. The 5 Barn. & judge told the jury that the note being for value received im- Cres. 501. ported that a good consideration existed; and that gratitude to the infant's father or affection to the child would suffice. though the jury might have presumed a good consideration was given, yet those the judge named were insufficient, and a new trial was granted. Held, 3. An officer attaches goods and delivers them to a bailee, 5 Pick. 295– and neglects to demand on execution till after his lien is gone, 296. the bailee refuses to deliver them: the officer sues him, and pending the action the attaching creditor agrees to indemnify the officer, &c. who had sued at his request: the creditor's agreement is without consideration. I. CH. 1. Con. 5 Pick. 380389, Train v. Gold. $ 4. .Assumpsit by a deputy sheriff on a contract of indenArt. 31. nity, by which the deft., an attorney, agreed that A of New York should save the plt. harmless in levying an execution against F, in favor of P, on certain goods pointed out by A as F's property, according to the terms of an engagement from A to the plt. The attorney's promise was in a letter. One Touro recovered the goods of the officer. The officer sued the attorney, and held, 1. his promise was founded on a sufficient consideration: 2. The officer's acquiescence was enough, without notice he accepted the promise, &c. and without calling on A for further security: 3. Without notice to A of T's action, the judgment was prima facie evidence of T's right to recover and of the amount, &c., and with notice it was conclusive, there being no fraud in the case; and before Touro sued, A was informed he claimed the goods. ART. 35. ART. 41. 5 Pick. 228 Goodnow. $2. Con. The same principles continued as in the section to which this case is added. 5 Ves. Jr. 287. 5. Con. Where the agent of a company, not incorporated, may sue a subscriber, on his subscription for monies the agent has paid for him. The project was to establish a line of stages, 230, Bryant v. lawful and deemed beneficial. The deft. subscribed $25: the plt. advanced the money on the credit of the deft's. subscription, and recovered, the monies he expended under the direction of the company were to a large amount so that the deft's. part thereof was as much as $25. It seems by this case that each subscriber was liable for his part of the whole sum expended by the agent. It was said the deft. was entitled to notice of the meeting at which the plt. was chosen agent and so directed; but it appeared he had waived his objection to the want of notice by offering to pay in a certain manner. ART. 42. 3 Pick. 452 461, Knapp adır. of Dillo way v. Lee. § 8. But if the grantor be insolvent the case may be different; as where W. S. Skinner obtained an estate of one Somes' by fraud, and sold it to W. R. Lee (deft.) with covenants of seisin and warranty. Lee gave several notes to Skinner, and entered and was evicted by Somes' guardian. Skinner endorsed one of the notes, $1000, to Dilloway, plt's. intestate, who was informed Lee would refuse to pay, if his title failed. So D stood in the place of P. W. S. Skinner died insolvent. Judgment for Lee on his defence on the general issue, as he could not plead the demand on the covenants by way of set-off, nor avail himself of it in a cross action; and in such a case the plt. may prove the value of the land, at the time of the eviction, was less than the amount of the note. Any notice to the indorsee was sufficient, that was sufficient to put him on his guard when the note was endorsed to him. In Little v. Roberts, Little was a man of property and able to defend his warranty. Lloyd v. Jewell, 1 Greenl. 352, seems contrary to Knapp v. Lee. See 11 Johns. 50, Frisbee v. Hoffnagle. t. § 2. Con. Trover for three hundred barrels of beef. The same principles. See Insolvency. That is, if A be insolvent, and his creditors agree to take 5s. in the pound, and no funds be provided to pay this proportion, their old contracts are not discharged. 3 Pick. 38-46, Chapman & al. v. Searle, adm'r. I. CH. 1. Art. 45. Con. Part of this case ch. 39. a. 9. s. 8. and a. 2. s. 5 to 10. ART. 54. The general principle asserted by the four judges seems to be, A. D. 1827. Ogden v. that when individuals in society make contracts, there is no natu- Saunders. ral obligation in them, attached to or impressed on them by the law of nature, or universal law, but instead thereof the municipal law creates in them a civil obligation, and this creature of the law the state can modify as it pleases as to contracts made after the law is passed. How this is done the counsel and judges who argued for Ogden did not agree. Marshall, C. J. speaking for himself and Duval and Story, justices, said, 12 Wheat. 338, 'the plt. (Ogden) insists that the law enters into the contract so completely as to become a constituent part of it.' Thompson, J. said, the parties must be understood as making their contracts with reference to existing laws, impliedly assenting that such contracts are to be construed, governed, and controlled by such laws.' Trimble, J. said, the law of the state, although it constitutes the obligation of the contract, is no part of the contract itself; nor is the constitution a part of the law of the contract.' On these points Marshall, C. J. speaking as above, said, p. 339, if the insolvent law is unconstitutional it is incapable of becoming a part of the contract. It is not correct to introduce into the contract a stipulation not admitted by the parties. If one law enters into all subsequent contracts, so does every other law which relates to the subject. A legislative act then declaring that all contracts should be subject to legislative control, and should be discharged as the legislature might prescribe, would become a component part of every contract, and be one of its conditions.' P. 342, &c. usage is made a part of the contract, not by the interference of the legislature, but by the acts of the parties'— 'the principle is, that laws act upon a contract, not that they enter into it, and become a stipulation of the parties. Society affords a remedy for breach of contract. If that remedy has been applied, the claim to it has been extinguished; the external action of law upon contracts, by administering the remedy for their breach, or otherwise, is the usual exercise of legislative power.' 'If the law become a part of the contract, change of place could not expunge the condition; a contract made in New York would be the same in any other State as in New York, and would still retain the stipulation originally introduced into it, that the debtor should be discharged by the surrender of his estate.' |