Art. 2. Bill of the plt. or complainant in its several uses. 3. Process to bring in the deft. to answer, &c. 4. Pleas in abatement and amendments. 5. Demurrer to the plt's. bill. 6. Pleas in bar to the plt's. bill. 7. Answer in equity. 8. Replication, rejoinder, &c. 9. Cross-bills, supplemental bills, and bills of interpleader. 10. Bills of revivor and bills in the nature of bills of revivor. 11. Bill of review. 12. Duress in equity. 13. Injunctions. 14. Ne exeat regno, or republica. 15. Practice in equity, in pleadings, &c. 16. How far shall a party be obliged to disclose in equity. 17. What is a fraudulent decree. 18. Par delictum, in pari delicto, &c. CHAPTER CCXXVII. CAPTURES IN WAR. CHAPTER CCXXVIII. OUR WRIT OF RIGHT AND PLEADINGS THEREIN BRIEFLY EXAMINED. Art. 1. The nature of the writ. 2. The demandant's declaration. 3. The plea, issue, and evidence. General Abridgment OF AMERICAN LAW. CHAPTER I. CONTRACTS AND CONSIDERATIONS. ART. 1. In this chapter the nature and principles of con tracts will be briefly considered; and contracts in detail will be considered, and the actions founded on the various species of them, in a large proportion of the following chapters. Sect. 1. What is a contract. The best and most comprehensive definition found is the French, derived from the civil law, which is defined thus, "a convention by which one or more persons obligate themselves to one or more other persons to give or do, or not to do, something." Blackstone defines a contract, which usually conveys an interest merely in action, thus: "an agreement, upon sufficient consideration, to do or not to do a particular thing." This contract is merely executory, on which there is a right of action to enforce an execution of it. But a contract may be executed, and then it is a grant; as if A agree, or contract, for a proper consideration, to sell a piece of land to B, and make the conveyance; here the agreement, bargain, or contract is executed, and thereby the land is vested in B and the consideration in A, and no cause of action exists. If A shall attempt to use the land as his, B can repel him by shewing their contract executed. Mr. Powell thinks a contract is best defined thus, a contract is a transaction in which each party comes under an obligation to the other, and each, reciprocally, acquires a right to what is promised by the other." After all, we can properly understand what a contract is, but by seeing its obligation on one party and its security to the other, in the thousands of cases in which it is used Сн. 1. in all the conditions of mankind. What is a contract, the obligation of which our state legislatures cannot impair, is one of the most important questions in our system; and this contract well understood is among the best securities in it ; not only as to property, but as to rights and privileges also, as we shall see in many cases. A judgment is not a contract. §2. The several kinds of contracts. They are, commonly, considered, 1. Matters of Record, as a recognisance. 2. Specialties, as deeds under seal, as to which no consideration need be stated or proved. 3. Unsealed written contracts. 4. Parol or verbal contracts. Some, of these three classes of contracts, make only two. 1. Specialties. 2. Parol, and they say if written and not sealed they are parol agreements. 3 John. Cas. 60; but, in fact, the statute of frauds and many judicial decisions (as we shall see) make as strong distinctions between written and parol contracts, as the common law makes between sealed and unsealed contracts; and the civil law made a clear distinction between mere verbal pacts, or agreements, and written stipulations. 5. Many acts passed, grants made, and corporations created by our legislatures, are contracts, not to be annulled or altered by them, without the consent of the other party, holding a private right, interest, privilege, franchise, or exemption under them. 6. Contracts as above are executory and executed. 7. Contracts are express, as in express words or in writing; or implied, as when raised by law. 8. Treaties, likewise, are contracts of the highest order; obligatory on one party, whenever they stipulate and promise rights, privileges, exemptions, power, interest, or property to the other. 9. Our Colony charters were viewed as political contracts; hence in our separation, we found it necessary to "dissolve the political bands" which connected them with their parent state. So the articles of confederation were viewed as political contracts among the states, called a Confederacy, to which there were, at first, thirteen parties. Not so the Constitution of the United States, but the people of them ordained and established it, in whom was the original sovereignty, and who included in one body all classes, and they have carried it into execution by electing a part of themselves, from time to time, in states and districts, to administer it according to the rules of conduct ordained and prescribed in it, not as a contract among thirteen, twenty, or twenty-four parties. So where the people of a state have formed and adopted a state constitution, they have as one people ordained and established it; their electing men in towns to frame it, or their meeting in their towns to ratify it, has not made it a contract to which each town is a party; hence from the ordaining power being one body, results the right to alter and amend as a portion of them, short of the whole, sees fit; 10, so we shall observe, in subsequent chapters, there are several kinds of contracts in regard to time, number of parties, and amount of consideration: some must be for life, and life only; some temporary and some perpetual. These are some of the great divisions of contracts into those of several kinds; as to the objects and ends to be obtained by contracts, and as to the subject matter of them, contracts are of so many sorts, as to be the grounds of more than half of the actions that exist. 3. The probable origin of contracts. They must have commenced with human society. The obligation of contracts must have been felt in Adam's family. Men by nature being inclined to associate, they, no doubt, associated as soon as two or more of them existed, and, probably, there never was a time when men did not want to exchange labour and commodities in some sort of society; and as soon as they felt this want or inclination, agreements and contracts became necessary. The property of the commodity, the right of the service of one, in war, might be acquired by another by force; but in peace, neither could pass but by contracts. Before written contracts were invented and formal ones introduced, exchanges must have been made, and rights to property and labour yielded and acquired by mere agreements, proved by no other evidence than the delivery of the thing, or by the yielding of the service, or by calling some bystander to witness the bargain :-as every individual had occasion for agreements, he became concerned in rendering them valid, and so useful. There was a common interest in supporting them. It was with money as with writing, neither could ever be the invention of a rude and barbarous people; still before men had either, they must have had much occasion for agreements, not only in borrowing and lending commodities, and in exchanging them, as also labour, but even in a traffic of labour for the fruits of the earth, for animals, and other things, understood to be the objects of ownership. The right of meum and tuum was, intuitively, perceived, as soon as men perceived at all, as it ever has been by children in the cradle. If ten men from ten different nations meet, accidentally, on a desert island, and one of them, by his labour, acquire a fish from the sea, they all, intuitively, perceive it is his. This has ever been the case, and it has ever been the intuitive perception of mankind, that when one, by his exertions, has obtained property or a right, it has remained his, until he has lost it either by a non user or misuser, or yielded it by his con sent, and with this consent, contracts have been coeval. CH. 1. Art. 1. |