CH. 1. es, and draw on me for the balance, which shall be punctually Art. 47. honoured." Two years after, B, being pressed by a creditor, drew in favor of him a bill on A; and it was held that A was not bound to accept or pay this bill; for his promise was nudum pactum, for want of consideration; it not appearing any thing was due to B, at least at common law. Chitty on Bills 70, 71, T. 630. 6. In this case Dexter for the plt. admitted, that A's letter or promise was not the more binding for being in writing, but contended, and correctly, that there are some writings which of themselves prove a consideration; as my letter of credit, or as my acceptance of a bill of exchange, &c. 7. Where the legislature has declared a contract, as a note or 727. R. bill, void for its illegality, the illegality of the consideration, as usury &c., the deft. may shew the illegality, though the plt. or some one between him and the deft. took it bonâ fide, and for a valuable consideration; and the innocent holder can only look to him of whom he received the bill or note; but unless it has been expressly so declared by the legislature, illegality of consideration will be no defence in a suit by a bonâ fide holder, without notice of illegality, unless he obtained the bill after it became due. 8 T. R. 390, 10 Mass. R. 415, Sanger and wife, v. Cleveland. 3 Johns. R. Powell v. § 8. If a contract be void for usury, &c., and a second be taken for the same debt, it is equally void in the hands of a party to the first; but not if in the hands of a bona fide holder. And see Usury. By suffering judgment by default, the deft. loses the opportunity to object to the want or illegality of the consideration, or to the insufficiency of the consideration. If an executor have no assets, and promise to pay the testator's debt, it is nudum pactum. 5 D. & E. 8. ART. 47. Where C's note for land to a third person is valid, though C's title fails. A and B, tenants in common of land as coheirs; A releases her right to B on absolute security, a bond; B conveys all to C with warranty; C gives his note to A towards satisfying the bond to her; C is obliged to pay a sum of money to remove an incumbrance from the land, and B, his warrantor, is insolvent. A sues the note thus given for the land, and C insists there ought to be a deduction from it on account of this incumbrance, the consideration of the note so far failing; but judgment for A for the whole note, for she is a third person, not the grantor of the land, and she had a clear title to claim to the amount of the note on her brother's bond, and the note given to her to satisfy that claim was given for a valuable consideration as to her, as it was given to pay her what she was justly entitled to. ART. 48.-Consideration bad. In assumpsit the plt. stated that he, U, and W, were joint owners of a vessel and her cargo, then on a distant voyage, and were jointly interested in her earnings and the profits of the voyage; that W was also master, and died on the voyage; and after his death the deft., in consideration the plt. had promised him that he, the deft. should receive from the plt. W's effects in the vessel and her earnings, as W was entitled to receive them according to the agreement among the owners, and in consideration the plt. agreed with the deft. to account to him for the said vessel, and earnings, profits, &c. in like manner as he was bound to account to W; he, the deft. promised to pay the plt. any demands or sums of money due and owing from W to the plt. at the time of W's death; and also any demands the plt. had against W's share in the vessel; and the plt. stated in his declaration, a certain debt due from W to the plt., and averred he was always ready to perform his part of the agreement, &c. On demurrer, this declaration was held bad, as it did not state a sufficient consideration of the deft's. promise; not stated he was to receive any thing in fact. CH. 1. Art. 53. Johns. R. 235, Barnet v. Biscoe. ART. 49. The deft. agreed in writing to give the plt. the 4 refusal of a farm, &c. Held necessary to prove a consideration for the promise, where the agreement is in writing, as well 4 as where it is by parol. And though a parol agreement will not give a title to lands, yet the party may recover damages for the non-performance.-Quære. Dallas 152. ART. 50. As to the consideration of contracts, see many Cooper's good rules in Latin and English collected by Cooper, princi- Just. 587, pally from the Roman law, most of which will be found in dif- 594. ferent parts of this work, as rules and maxims have applied. 313, Good ART. 51. A contract made by parties is void, if it be of a 4 Day's cases kind to impose on the court and to interfere with the regular administration of justice. ART. 52. So a contract made in New York is void, for the sale of tickets in a lottery authorized only by another state, and not by New York or Congress. ART. 53. Consideration moving A to pay or do something, where B has the benefit. Numerous decisions have given rise to four classes of cases on this subject. win v. Goodwin. 5 Johns. R. of Hunt, &c. 327, 335, case Coles.--Will 1. As where A collaterally assures or guarantees B's Cro. El. 137, debt &c. to C at the very time it is contracted, and B prom- Kirkby v. ises to pay or do. Here the benefit done by C to B as a loan, iams v. Leapdelivery of goods, &c. is both the consideration of B's prom- er,cited ch. 9, ise, and A's guarantee or suretyship, and no consideration need a. 20, s. 9, & Ch. 50, a. 8. be stated for A's undertaking. This is every surety's case who joins in the original contract. And see cases in the margin. 2. As where A, subsequently to B's debt &c. being con- Roberts on tracted with C, collaterally guarantees it. These two consid- Frauds 232, erations are necessary, one for B's promise and one for A's, and both must be proved. Thus subsequently was the guaran 237. Сн. 2. Gill, Ambler on Frauds. 232, 237. See cases cited Ch. 9 a. 20, s. 25. tee in Wain v. Warlters, 5 East 10, 20; cited art. 25; also ch. 19 a. 20, s. 33; ch. 11, a. 14, and Sumuer v. Parsons, referred to ch. 20 a. 14, s. 5, (in this case a questionable consideration was stated and proved.) See 14 Vesey 190, Seers v. Brink, ch. 11 a. 13, s. 5. Tomlinson v. § 3. Where B owes a duty or debt to C, and A for a new 330.-Roberts consideration undertakes, not collaterally but directly, to pay or do what B engaged to pay or do, this is not a case within the statute of frauds, (as the other two are.) But this new consideration for A's engagement or guarantee must be distinct and independent of B's debt or duty, and one moving between A and C, the parties to the new promise in fact original. See cases cited ch. 9 a. 20, s. 9; and 7 D. & E. 201; 1 Saund. 211 note 2. Hence in this 3d class of cases, A's undertaking need not be in writing. 6 East 307, 308, cites v. Parsons. 4. Where A undertakes to pay B's debt &c., and A's 5 East 10, 20. promise must be in writing founded on a distinct consideration, -See 14 Ves. how far must it be stated in the writing? According to Wain 190-15 Ves. v. Warlters, the consideration moving A's promise must be sta287, Sumner ted in the writing to make his promise valid on the statute of American frauds; recognized in New York in Seers v. Brinks, 3 Johns. Precedents R. 210, but not adopted in Massachusetts, as Hunt v. Adams 113.-See ch. 9 a. 20, s. cited and examined ch. 11 a. 14, and the Supreme Court in 33 ch. 11 a. New York in Leonard v. Vredenburgh, 8 Johns. R. 29, 41; 14.-5 Cranch allowed the consideration of such after collateral promise to be proved by parol evidence, as that the guarantor undertook at the time the original contract was made. On the whole, as to this last class the law seems to be unsettled. It is clear that prior to the case of Wain v. Warlters, it was not usual to require the consideration to be stated in the written memorandum; and the endorsement of a promissory note is primâ facie evidence of full consideration; and why is not a guarantee of one? 322, 335. See ch. 173 a. 9. 3 Bl. Com. 7, 8, &c. CHAPTER II. REMEDIES BY THE ACTS OF THE PARTIES. ART. 1. IN certain cases from necessity. § 1. In some cases of necessity the party injured is allowed to seek his own remedy; to retake his property; to repel force by force; to abate nusances; to take beasts damage feasant, &c. 2. The defence of one's self, husband, wife, child, parent, 2 Inst. 316. mother, or servant, is a natural right, which has scarcely ever been taken away by any municipal law. Hence if one in these near relations be attacked, another in them may lawfully repel force by force. The particular cases in which this may be done are numerous; but one general principle holds in them all, and that is, the defence must be regulated by the nature, degree, and design of the attack. I may kill one who attempts to take my life, or to commit a burglary in my house, but not one who only attempts to trespass on my land. There is also another principle, the repelling force must go no fur ther, than is necessary to prevent the mischief intended by the aggressor. as in CH. 1. Art. 5. 8 T. R. 299, Gregory and wife v. Hill. Green. 772, Pleader 3 m. 16. §3. In using force there are two kinds. 1. Gently laying Salk. 641, on hands. 2. Actual force. "There is a force in law, Goddard v. every trespass quare clausum fregit. As if one enter into my 5 Com. D. grounds, here I must request him to depart, before I can lay hands on him to turn him out; for every laying on of hands is an assault and battery, which cannot be justified upon account of breaking the close in law, without a request." So 2d, there is an actual force, as in burglary, or in breaking open a door or gate; and in that case, it is lawful to oppose force by force. And if one breaks down the gate, or comes into my close vi et armis, I need not request him to be gone, but may lay hands on him immediately; for it is but returning violence for violence." "So if one comes forcibly, and takes away my goods, I may oppose him without any more ado; for there is no time to make a request." Thus breaking a gate is actual force. So if one by force attempt to enter upon my land, I may Weaver v. at once use force to repel him, and need not plead molliter Bush. manus imposuit; which plea justifies an assault and battery, but not a wounding. 8 T. R. 78, 138, Thewell §4. So if one be possessed of a house, and another at- Cro. Jam. tempts to put him out, he that is so possessed may gently lay r. Avery. hands on him to put him away. The possession is but inducement; the attempt to put out is the material part. $5. So molliter manus may be to remove a trespasser from Willis. 14, my house or property, after a request to depart, who does not 915 Com. enter with actual force, or who enters lawfully and remains D. 772. unlawfully; or I may use actual force to remove him who en- Pleader 3 M. ters with actual force, or remains with actual force. 16.-Lutch 1435, 1483, 6. In all these cases the owner of the property is in the 1497. right to defend it; and the party who invades it is the aggressor, and in the wrong; and such force as he uses may be returned by the owner in defence of his property; and if the aggressor persist in his wrong, and is repelled by a return of violence, he brings the evil upon himself. The general rule is, the owner must defend his property by gently laying on hands till the aggressor uses actual force to get or keep possession, Сн. 2. Art. 3. 3 Bl. Com. 8. -Mass. Act to take away or destroy it, and then the owner may lawfully return actual force proportioned to the circumstances of the case: in other words, the degree of force must be reasonable, all circumstances considered. ART. 2. By recapture. If one wrongfully take away my goods, or detain my wife, child, or servant, I may lawfully re1 take either, when I can do it in a peaceable manner, without force or terror, and without disturbing the public peace. The law founded in reason considers that I may be without remedy, if I be not allowed this mode of redress, as my goods or relation may be carried beyond my reach, before I can have a remedy by suit or action. But this mode of redress is limited. If I find my horse so taken from me in the highway, common, or public inn, I may retake him; or to do this I may peaceably enter upon the land of the wrong doer. But to take my property in this case, I cannot lawfully enter upon the land of a third person, or break open a private stable, except it be feloniously taken. If my property, as a stick of timber, comes upon the land of one wholly innocent, though without my fault, I ought first to ask his consent to let me take it away, offering to pay him any damages I may thereby do him; and if he then refuses, he is guilty of a concussion; and this from the necessity of the case; for as my property comes there without any fault in me, I ought to have remedy to recover it, and I am without remedy unless the law be so. Any usage as to fruit or trees falling, making fences, &c. may be an exception to this rule. ART. 3. By reentry on lands; and one's going on the lands July 4, 1786. of others to take his goods. 1. If one, unlawfully, or with3 Bl. Com. out right take possession of my lands, I may peaceably enter 174, 175, 176. upon them, and regain pessession. And I may do this when32 H. 8, 33. Co. L. 15, Litt. sect. 417.-3 BI. Com. 175.-3 T. R. 292. ever his possession had a tortious beginning, and has tortiously continued in him less than 20 years. But if he continues his possession, though wrongfully, more than 20 years, or more than 5 years and dies and his heir enters, my remedy by entry is gone. 2. This remedy by entry does not take place in the cases of discontinuance and deforcement; because in these the original entry is lawful. But it takes place in abatement, intrusion, and disseisin; because in these cases the original entry is unlawful. An entry on a part in the same county in the name of all is an entry on the whole. But an entry in one county is no entry in another. So an entry on one disseisor is no entry on another. So if one disseisor convey with live10 Mod. 363. ry, or in a mode equivalent to livery, to two distinct grantees Co. L. 252, or feoffees, there must be an entry on each. There must be |