CHAPTER THE THIRTIETH. OF TITLE BY GIFT, E are now to proceed, according to the order marked out, to the difcuffion of two of the remaining methods of acquiring a title to property in things perfonal, which are much connected together, and anfwer in fome measure to the conveyances of real eftates; being those by gift or grant, and by contract: whereof the former vefts a property in pofession, the latter a property in action VIII. GIFTS then, or grants, which are the eighth method of transferring personal property, are thus to be diftinguifhed from each other, that gifts are always gratuitous, grants are upon fome confideration 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 perfonal. Under the head of gifts or grants of chattels real, may be included all leafes for years of land, assignments, and furrenders of those leafes; and all the other methods of conveying an estate lefs than freehold, which were confidered in the twentieth chapter of the prefent book, and therefore need not be here again repeated: though these very seldom carry the outward appearance of a gift, however freely beftowed; being ufually expreffed to be made in confideration of blood, or natural affection, or of five or ten fhillings nominally paid to the grantor; and in cafe of leafes, always referving a rent, though it be but a peppercorn: any of which confiderations will, in the eye of the law, convert the gift, if executed, into a grant; if not executed, into a contract. GRANTS GRANTS or gifts, of chattels perfonal, are the act of tranfferring the right and the poffeffion 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 attefted by fufficient evidence, of which the delivery of poffeffion is the strongest and most effential. But this conveyance, when merely voluntary, is fomewhat fufpicious; and is ufually conftrued to be fraudu lent, if creditors or others become fufferers thereby. And, particularly, by statute 3 Hen. VII. c. 4. all deeds of gift of goods, made in trust to the use of the donor, fhall be void: because otherwife perfons might be tempted to commit treason or felony, without danger of forfeiture; and the creditors of the donor might also be defrauded of their rights. And by statute 13 Eliz. c. 5. every grant or gift of chattels, as well as lands, with an intent to defraud creditors or others', fhall be void as against fuch perfons to whom fuch fraud would be prejudicial; but, as against the grantor himself, shall stand good and effectual; and all perfons partakers in, or privy to, fuch fraudulent grants, fhall forfeit the whole value of the goods, one moiety to the king, and another moiety to the party grieved; and also on conviction fhall fuffer imprifonment for half a year. A TRUE and proper gift or grant is always accompanied with delivery of poffeffion, and takes effect immediately: as if A gives to B 100l, or a flock of fheep, and puts him in poffeffion of them directly, it is then a gift executed in the donee; and it is not in the donor's power to retract it, though he did it without any confideration or recompenfe : unlefs it be prejudicial to creditors; or the donor were under any legal incapacity, as infancy, coverture, durefs, or the like; or if he were drawn in, circumvented, or impofed upon, by false pretences, ebriety, or furprize. But if the gift does not take effect, by delivery of immediate poffeffion, it is then not properly a gift, but a contract: and this a man a Perk. §. 57. с c Jenk. 109. cannot cannot be compelled to perform, but upon good and fuffici ent confideration; as we shall fee under our next division. IX. A CONTRACT, which usually conveys an interest merely in action, is thus defined: "an agreement upon "fufficient confideration, to do or not to do a particular "thing." From which definition there arise three points to be contemplated in all contracts; 1. The agreement: 2. The confideration and 3. The thing to be done or omitted, or the different fpecies of contracts. FIRST then it is an agreement, a mutual bargain or convention; and therefore there muft at least be two contracting parties, of fufficient ability to make a contract: as where A contracts with B to pay him 100l, and thereby transfers a property in fuch fum to B. Which property is however not in poffeffion, but in action merely, and recoverable by fuit at law; wherefore it could not be transferred to another perfon by the strict rules of the antient common law: for no chofe in action could be affigned or granted over, because it was thought to be a great encouragement to litigiousness, if a man were allowed to make over to a stranger his right of going to law. But this nicety is now difregarded: though, in compliance with the antient principle, the form of asfigning a chofe in action is in the nature of a declaration of trust, and an agreement to permit the affignee to make use of the name of the affignor, in order to recover the poffeffion. And therefore, when in common acceptation a debt or bond is faid to be affigned over, it must still be fued in the original creditor's name; the perfon, to whom it is transferred, being rather an attorney than an affignee. But the king is an exception to this general rule; for he might always either grant or receive a chose in action by assignment: and our courts of equity, confidering that in a commercial country almost all perfonal property must neceffarily lie in contract, will protect the affignment of a chofe in action, as much as the law will that of a chofe in poffeffion. f 3 P. Wms, 199. 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 ftated price for certain goods. Implied are fuch as reafon and justice dictate, and which therefore the law presumes that every man undertakes to perform. As, if I employ a perfon 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 deferves. If I take up wares from a tradefman, without any agreement of price, the law concludes that I contracted to pay their real value. And there is also one species of implied contracts, which runs through and is annexed to all other contracts, conditions, and covenants, viz. that if I fail in my part of the agreement, I shall pay the other party fuch damages as he has fuftained by fuch my neglect or refufal. In fhort, almost all the rights of perfonal property (when not in actual poffeffion) do in great measure depend upon contracts of one kind or other, or at least might be reduced under fome of them: which indeed is the method taken by the civil law; it having referred the greatest part of the duties and rights, which it treats of, to the head of obligations ex contraclu and quafi ex contračłu 8. A CONTRACT may also be either executed, as if A agrees to change horses with B, and they do it immediately; in which cafe the poffeffion 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 poffeffion but in action; for a contract executed (which differs nothing from a grant) conveys a chofe in poffeffion; a contract executory conveys only a chofe in action. HAVING thus fhewn the general nature of a contract, we are, fecondly, to proceed to the confideration upon which it is founded; or the reafon which moves the contracting party to & Inft. 3. 14. 2. enter enter into the contract. "It is an agreement, upon fufficient "confideration." The civilians hold, that in all contracts, either exprefs or implied, there must be something given in exchange, fomething that is mutual or reciprocal . This thing, which is the price or motive of the contract, we call the confideration: and it must be a thing lawful in itself, or else the contract is void. A good confideration, we have before feen, is that of blood or natural affection between near relations; the fatisfaction accruing from which the law efteems an equivalent for whatever benefit may move from one relation to another j. This confideration may fometimes however be fet afide, and the contract become void, when it tends in it's confequences to defraud creditors or other third perfons of their juft rights. But a contract for any valuable confideration, 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 fufficient adequate value, is never set aside in equity for the perfon contracted with has then given an equivalent in recompenfe, and is therefore as much an owner, or a creditor, as any other perfon. THESE valuable confiderations are divided by the civilians into four fpecies. 1. Do, ut des: as when I give money or goods, on a contract that I fhall be repaid money or goods for them again. Of this kind are all loans of money upon bond, or promife of repayment; and all fales of goods, in which there is either an express contract to pay so much for them, or elfe the law implies a contract to pay fo much as they are worth. 2. The fecond fpecies is, 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 perfons agree to marry together; or to do any other pofitive acts on both fides. Or, it may be to forbear on one fide on confideration of something done on the other; as, that in confideration A, the tenant, will repair his houfe, B, the landlord, will not fue him for wafte. Or, it may be for mutual forbearance on both sides; h In omnibus contra&libus, five nominatis five innominatis, permutatio contine-· Gravin. 1. 2. §. 12. tur. page 297. j3 Rep. 83. * Ff. 19. 5. 5. as, |