William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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after a ^Zm facias At law has been returned nulla bona, and the remedy at
law bona fide exhausted. So, in Ohio, Kentucky, Georgia, Pennsylvania,
Tennessee, and probahly in other states, a judgment creditor is authorized,
by statute, to seize and sell on execution, or apply for the aid of chancery
powers, to reach choses in action^ stocks, property or money in the hands of
third persons, when the debtor has not property sufficient to satisfy the



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[ * 444] * IL Gifts catisd mortis have been a subject of very
frequent aad extensive discussion, in the English courts
of equity. Such gifts are conditional, like legacies; and it is
essential to them that the donor make them in his last illness, or
in contemplation and expectation of death; and with reference
to their effect after his death ; and if he recovers, the gift liecomes
void (a). The apprehension of death may arise from infirmity,
or old age, or from external and anticipated danger (6)/

jiidgroent, which can be reached by execntion. Under that assistance, equit-
able interests and choses in action, and interest in joint stock companies,
may be made subject to the payment of judgments at law. Statutes of Ohio^
1831. Act of Tennessee, 1833. Act of Kentucky, February, 1828. Act of
Georgia, 1822. Fiirdon's Dig. 368, 371, 372. Statules of Connecticut, 1838, p.
65. In New Hampshire, bank notes may be attached on mesne process, and
sold on execution. Spence v. BJaisdell, 1 N, H. Cases, 198. Money may be
levied on fieri facias. 1 Bayley's S. C. Rep. 39. 12 Johns. Rep. 220. So, in
New York, bank bills, and other evidences of debt, issued by any monied
corporation, or by the government of the United States, and circulated as
money, and in Connecticut all corporate stock, may be levied upon, and sold
under execution at law, without recourse to chancery. N. Y, Revised Stat-
utes, vol. ii. p. 366. Revised Statutes of Connecticut, 1821. The New York
provision in chancery extends to property and things in action held in trust
for the debtor, with the exception of such trusts as have been created by, and
of funds so held in trust proceeding from, some other person than the defendant
himself. Ibid. p. 174, sec. 3S, 39. Vide infra, vol. iv. p. 430. In Kentucky,
by statutes of 1821 and 1828, equities of redemption were made subject to
sale on execution. In Mercer v. Beale, 4 Leigh' h Rep. 207, President Tucker
was inclined to the doctrine in Bayard v. Hoffman, 4 Johns, Ch, Rep. 450,
that where a creditor was in pursuit of his demand, and the debtor transfers
his choses inaction, stocks, &c., to trustees for his benefit, the creditor
would be entitled to be assisted in equity. In Georgia an equitable interest, *
or a distributive share, is not Subject to sale on execution. Colvard v. Coxe,
Dudley's Rep. 99.

(a) Stvinb. 18. Drury v. Smith, 1 P. Wms. 404. Blount v. Burrow, 1
V&iey, jun. 546. Sir L. Shadwell, in Edwards t». Jones, 7 Simons, 325. Wells
V. Tucker, 3 Binney's Rep. 366. In Nichlar v. Adams, 2 Wharton, 17, it was
held not to be indispensable to a valid donatio causd mortis, that it should be
made in extremis like a nuncupative will. The Ch. J. defined it to be a con-
ditional gift depending on the contingency of expected death, and that it
was defeasible by revocation, or deliverance from the peril. To constituted
donatio mortis causd, the circumstances must be such as to show that the
donor intended the gift to take effect if he should die shortly afterwards, but
that if he should recover, the thing should be restored to him.

(ft) Dig. 39, 6, sec 3, 4, 5, 6.

* The gift is not complete until the death of the donor, and it may be re-
sumed by him at any time before his death, which mu.st occur within a rea-
sonable time afler delivery. Dale v. Lincoln, 31 Me. 422; Gratton v. Apple-
ton, 3 Story, 755. Peril of death is the essential requisite to constitute a
valid gifl donatio mortis causd. Champney v. Blanchard, 39 N. Y. 1 11 ; Knott
V. Hogan, 4 Metcalfe (Ky.), 99. It must likewise be intended to takeefTect
only upon the donor's decease. Jones v. Brown, 34 N. H. 439; Virgin v.
Goi'her, 42 111. 39; Goss v. Simpson, 4 Cold. (Tenn.) 288. It depends not
upon an equitable, but a legal title, and the donee's claim is not essentially
an equitable right. Ward v. Turner, 1 White & Tudor's Leading Oases in



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The English law on the snbjecfc of this species of gift, is de-
rived wholly from the civil law. Justinian was jastly apprehen-
sive of fraud in these gifts, and jealous of the abuse of them, and
he required them to be executed in the presence of five witnesses.
We have not adopted such precautions; though it has been truly
declared, that such donations amount to a revocation pro tahto of
written wills; and, not being subject to the forms prescribed for
nuncupative wills, they were of a dangerous nature. By the civil
law, they were reduced to the similitude of legacies, and made liable
to debts, and to pass for nothing, and to be returned, if the donor
recovered, or revoked the gift, or if the donee died first (a). It
was a disputed point with the Koman civilians, whether dona-
tions catisd mortis resembled a proper gift, or a legacy. The
final and correct opinion was established, that a gift inter vivos
was irrevocable; but that a gift cav^d mortis was con-
ditional^ and revocable, and of a *testamentary character, [ * 445 ]
and made in apprehension of death (6). The first case
in the English law on the subject of gifts causd mortis, was that
of Jones V. Shelby^ in 1710 (c), in which the lord chancellor ruled,
that a donatio causd mortis was substantially a will with a like revoc-
able character dur i ng the life of the donor. Afterwards, i n Drury v.
Smith (d), a person, in his last sickness, gave a one hundred
pound bill to a third person, to be delivered to the donee if he
died; and this was held to be a good gift, and Lord Hardwicke
subsequently (e) approved of that decision. In Lawson v. Latv-
ia) Inat 2, 7, 1. Code, 8, 58, 4. .

(b) Dig. 39, 6, 2, and 27. Inst. 2, 7, 1. Vide Dig. lib. 39, tit. 5. De Dona-
iionibtt8, and tit. 6. De mortis causd Donaiionibtia^ ibr the Roman law at large
on the subject. By the lex cincia, A. U. C. 550, a donation above 200 solidi
wa3 not valid, unless accompanied with delivery.

(c) Prec. in Ch, 300. In Hambrooke v. Simmons, 4 RuaselVa Rep. 25, it
was left as a doubtful point, whether a donatio mortis causd be avoided by the
making of a subsequent will.

(d) 1 P. Wins. 404. (c) 3 Atk. Rep. 214.

Equity (Text Book Series), p. 1058. See, also, Bispham*s Equity, 4th ed.

The gift must be made while the donor is under the fear, apprehension,
suspicion or expectation of death near at hand. We.ston v. Hight, 17 Me.
287; Thompson v. Thompson, 12 Texas, 327; Gourley r. Linsenbigler, 51 Pa.
St. 345; Irish v. Mutting, 47 Barb. (N. Y.) 370. There must be some special
or peculiar danger at the time. Smith v. Dorsey, 38 Ind. 45; Besheimer v.
Gautier, 34 How. (N. Y.) 472.

If it is made not to take effect in fuiuro with view to death, but inprtg-
senii and irrevocable, it is a gift inter mvos, and not a causd mortis, Tate v.
Lelthead, Kay, 658; McCarty v. Keaman, 86 111. 291.



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fion (a), and in Miller v. Miller (6), a delivery to the wife as donee
was held good; but in the last case it was held^ that a note of
Land not payable to bearer, and being a mere chose in action^ to
be sned in the name of the executor, did not pass by delivery, or
take efiPect as a gift cauad mortia (c). The delivery of bank notes,
which circulated as cash, was held at the same time to be a valid
donation; and the same point has been since established (d).

But the case of Ward v. Turner (e),^ was that in which the
whole doctrine was, for the first time, f ally and profoundly ex-
amined in the English court of chancery; and Lord Hardwicke
gave to the subject one of his most elaborate and learned inves-
tigations. He held, that actual delivery was indispensable to the
validity of a gift causd mortis, and that a delivery to the
[ * 446 ] donee of receipts for south sea annuities, *was not suf-
ficient to pass the property, though it was strong evi-
dence of the intent. The delivery of the receipt was not the de-
livery of the thing. He examined very accurately the leading
texts of the civil law, and the commentators on the point, and
concluded, that though the civil law did not reqaire absolute de-
livery of possession in every kind of donation causd mortia^ that
law had not been received and adopted in England in respect to
those donations, only so far as the donations were accompanied
with actual delivery.^ The English law required delivery through-

(a) 1 P. Wma, 440.

(b) 3 Ibid, 356.

(c) The same point as that in Miller v. Miller, was decided the same way
in Bradley t;. Hunt, 5 Gill dtJohnwn, 54, in the case of a promissory note pay-
able to the husband's order. It would have been otherwise, if the note bad
been payable to bearer.

(d) Hill V. Chapman, 2 Bro. Ch, Rep, 612.
(c) 2 Ves. 431.

* White and Tudor's Leading Cases in Equity (Text Book Series), p. lOSa

• The cases are very strict with regard to the necessity of delivery. There
mnst be a delivery consisting of the manual tradition of that subject of the
gift, or something which is tantamount to or a substitute for such delivery.
Campbell's Estate, 7 Pa. St. 100; Cox v. Denison, 6 R. I. 88; Carr p. Silla-
way, 111 Mass. 24; Grymes r. Hone, 49 N. Y. 17; Blasdel r. Locke, 52 N. H.
328; Resch v. Senn, 28 Wis. 286. But the delivery need not be to the donee
personally; it may be made to any third person as his agent, provided the
donor is not allowed to regain possession. Meach v, Meach, 24 Vt. 595;
Jones V. Dyer, 16 Ala. 221; Raymond v. Sellick, 10 Conn. 480; Kilby v. Good-
win, 2 Del. Ch. 61, Michener v. Dale, 23 Pa. St. 59; Dale v. Lincoln, 31 Me.
422; Sessions v. Moseley^ 4 Cush. 87.

The delivery will be good if made to the husband or wife of the donor for
the donee. Caldwell ». Renfrew. 33 Vt. 213; Bowers v. Heard, 10 Mass. 427;
Cloush v.Clough, 117 Mass. 83; Southerland v. Southerland, 23 Pa. St 59;
Groverc.Grover, 24 Pick. 261.

The words and expressions ot the donor, no matter how clearly or how per-



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oat, and in evorj case. In all the chancery cases, delivery of the
thing was required, and not a delivery in the name of the thing.
In Jones v. Shelby y a symbol was held good; but that was in sab-
stance the same as delivery of the article, and it was the only case
in which such a symbol had been admitted. Delivery of a symbol
in the name of the article was not sufficient The delivery of the
receipts was merely legatory, and amounted to a nuncapative
will, and was a breach of the statute of frauds. «

Symbolical delivery is vejy much disclaimed by Lord Hard-
wicke in this case, and yet he admits it to be good when it is
tantamount to actual delivery; and in Smithy. Smith (a), it was
ruled, that the delivery of the key of a room, containing furni-
ture, was such a delivery of possession of the furniture, as to
render the gift causd mortis valid. Ch. J. Gibbs said, that was
a confused case; but the efficacy of delivery, by means of the key,
was not a questionable fact.^

The doctrine of this species of gift, was afterwards discussed
with ability and learning, in Tate v. Hilbert (6). Lord Lough-
borough pressed the necessity of actual delivery to the efficacy
of such gift, except in the case of a transfer by deed or writing.
He held, that where a person, in his last sickness, gave the donee
his check on his banker, for a sum of money payable
to bearer, and he died before it was realized, * it was [ * 447 ]

(a) 8tr, Rep. 955. (6) 2 Ves. jun. 111. 4 Bro. Ch, Rep. 286.

iectly they show his intention, are insufficient without delivery. Zimmer-
man 17. Streeper, 75 Pa. St. 147; McGrath v. Reynolds. 116 Mass. 566; Carr
i». Silloway, 111 Mass. 111. See the ease, In re Walsh's Appeal, 1 L. R. A.
535, where the delivery of a savings bank book by the deceased to a third
party, with an oral statement that it was for her sister, was held not a good
donatio mortis causd. See the note to this case where the decisions are col-

^ When it is possible to make an actual delivery, a symbolical or construc-
tive delivery will be insufficient. Marshall v. Berry. 13 Allen, 43; Rock-
wood V. Wiggin, 16 Gray, 402; Parish v. Stone, 14 Pick. 203; Hatch r. At-
kinson, 56 Me. 324.

In the following cases the delivery of a bank book or certificate of deposit
have been held valid as gn^ mortis causd. Dean r. Dean, 43 Vt. 337; Hill
V. Stevenson, 63 Me. 364; Camp's App., 36 Conn. 88; Pierce v. Savings Bank,
129 Mass. 425; Sheedy v. Roach, 124 Mass. 472. But an order upon the
bank or the delivery of the donor's check alone is not sufficient. Consler v.
Snowden, 54 Md. 175; Meach v. Meach, 24 Vt. 59L; Nicholas v. Adams, 2
Whar. 17.

See Coleman v. Parker, 114 Ma.ss. 30, where the court seem to have been
of opinion that the delivery of the .key to a box might be an eflectual de-
livery of the box and contents. And compare Hatch v. Atkinson, vbi supra.
See Re Walsh's App., 1 L. R. A. 535, and note.



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not good as a donatio cauad mortis; for it was to take effect
presently, and the authority was revoked by his death. He like-
wise held, that where the same person, at the same time, gave to
another donee his promissory note for a sum of money, that was
not good as such a gift, for it was no transfer of property. So,
where a person, supposing himself to be in his last sickness,
caused India bonds, bank notes and guineas, to be sealed up and
marked with the name of the donee, with directions to have them
delivered after his death, and still regained possession of them, it
was held (a), that there was no delivery; and the act Was void as
a gift causd mortis; for there must be a continuing right of pos-
session in thd donee until the death of the donor, and he may
revoke the donation any time before his death (&).

The cases do not seem to be entirely reconcilable on the sub-
ject of donations of choses in action.^ A delivery of a note, as we
have seen, was not good, because it was a mere chose in action ;
and yet in Snellgrove v. Bailey (c), the gift of a bond causA mor-
tis was held good, and passed the equitable interest; and Lord
Hardwicke afterwards, in the great case of Ward v. Turner, said

(a) Bimn v. Markham, 7 Taunt. Rep. 224.

lb) Hawkins v. Blewitt, 2 Esp. N. P. Rep. 663, S. P. In the case of the
Roman Catholic Church v. Miller, 17 Martin's Louis. Rep. 101, it was held
that a legacy of so much money in a drawer, was only good for the sum
found there at the death of the testator.

(c) 3 AJk. Rep. 214.

* Choses in action, such as checks, bonds, promissory notes, bills of ex-
change and certificates of deposit, may be transferred by delivery merely, and
no indorsement is necessary. Ashbrooke v. Ryan, 2 Bush. 228; Westerlo p.
De Witt, 3 N. Y. 340; Constant v. Schuyler, 1 Paige, 316; Bureman v. Sid-
linger, 15 Me. 429. This is so, whetlier the paper is negotiable or not.
Bates V. Kempton, 7 Gray, 382; Dale r. Lincoln, 31 Me. 422; Craig v. Craig,
3 Barb. Ch. (N. Y.) 76. So a gift of a bill of exchange payable to self or
order, is valid, though nnindor»ed, and not due until after the donor's death.
Waring v. Edmonds, 11 Md. 424; Brown r. Bmwn, 18 Conn. 410; Harris r.
Clarke, 2 Barb. (N. Y.) 56; Caldwell v. Renfrew, 33 Vt. 213; Turpin v.
Thompson, 2 Metcalfe (Ky.), 420; Brooks v. Brooks, 12 S. C. 422; Gibson v.
Hlbbard, 13 Mich. 214.

A gift, however, of the donor^s own cheque payable after death is not a
valid donatio mortis causd^ the money and not the cheque being the subject
matter of the gift, and if not payable until after death there is no delivery
during life. Baakett v. Hassell, 107 U. S. 602.

A donatio mortis causd may be made subject to a trust or condition, the
terms of which are prescribed b}' the donor. Currie r. Steele, 2 Sandf 542;
Cloogh V. Clough, 117 Mass. 83; Barclay's Estate, 11 Phila. 12.

The reason that the proof of actual delivery is so strictly required and so
essential to constitute a valid donatio mortis causa, is that they are only prov-
able by parol evidence; yet if there be any written instrument under the
hand of the donor, delivery will be presumed from very slight circumstances.
Ellis v. Secor, 31 Mich. 185; Brinkerhofi' v. Lawrence, 2 Sandf Ch. 400.



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be adhered to that decision; and the same kind of gift, as well
as the gift of a promissory note causd mortis, has been held in
this country to be valid. The distinction made by Lord Hard-
wicke, between bonds and bills of exchange, promissory notes and
other choses in action, seems now to be exploded, and they are
all eqnally proper subjects of a valid donation causd mortis as
well as inter vivos (a).

* By the admirable equity of the civil law, donations [ * 448]
causd mortis were not allowed to defeat the just claims
of creditors; and they were void as against them even without a
fraudulent intent (&). It is equally the language of the modern
civilians, that donations cannot be sustained to the prejudice of
existing creditors (c).

(a) Wells t.'. Tucker, 3 Binney's Rep. 366. Borneman v. Sidlinger, 15 Maine
Ji, 429. Wright v. Wright, 1 Coioen's Rep. 598. Constant r. Schuyler, 1
Paige's Rep. 318. Brunson v. Brunson, 1 Meig*8 Tcnn. R. 630. Parish v.
Stone, 14 Pick. 207. This last case overrules the one from Cowen, so far as it
applies to the donor's own promissory note, payable to the donee, and which
cannot be the subject of a tfonafh causd mortU. It has been a debateable
question, whether a bond and mortgage could pass by delivery as a donatio
caused mortis. In DuflSeld v. Elwes, 1 Sim. & Stu. 239, it was held, that a
mortgage could not be so given, and that the bond did not also pass. The
reason assigned was, that it was not a gift completed, ihasmuch as the mort-
gagor had a right to resist the payment of the bond without the reconvey-
ance of the esstate; and the donor of the bond was not to be compelled to com-
plete his gift by such conveyance. But this case was afterwards reversed;
and the delivery of the mortgage, as creating a trust by operation of law, was
good as a donatio causd mortis. 1 Blights Rep. 497. The principle was also
admitted in Hurst v. Beach, 5 Madd. Ch. Rep. 351, and a delivery of a bond
and mortgage, as a donation mortis causd, held valid. So, also, in Duffield r.
Hicks, 1 Dow^a N. S., 1, bond and mortgage securities were held to be capa-
ble oi a great delivery as a donatio causd mortis. They raise a trust by opera-
tion of law, and the heir or executor is bound to give effect to the intent of
the donor. These decisions are subject to the objection, that they go very
much to impair the provision in the statute of frauds, which avoids parol
grants and assignments in trust. The requisites of a valid donatio mortis
causd^ are well collected in a learned note to the case of Walter v. Hodge, 2
Sujanslon^ 106, where it is stated and proved, that it requires delivery of the
property or the documentary evidence of it — that it is revocable by the donor
— ^that it is revoked by the death of the donee during his life — that it is sub-
ject to the claims of creditors, and that, ou the death of the donor, the prop-
erty Tests absolutely in the donee and no probate is required, and the wife
may be that donee.

ib) Dig, 39, 6, 17.

(c) Voet. Com. ad Pand. 39, 5, sec. 20. Poihier, Traiie des Donations entre
Vtfs, sec. 3, art 1, sec. 2. Toullier^ Droit Civil Frangais, tome v. p. 733.


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* 450 OF P£B60NAL PBOPERXT. [Put Y.



1m eotering upon so eztensiTe and so complicated a field of in-
qoiiy as that concerning contracts, we mnst necessarily confine
oar attention to a general ontline of the subject; and endeavonr
to collect and anrange, in simple and perspicuous order those
great fundamental principles which gOYern the doctrine of con-
tracts« and perrade them under all their modifications and ya-
rielj (a).

L Of the parHes ikereio.

An execntorj contract is an agreement of two or more persons^

upon suffioient consideration, to do or not to do a par-
[ * 450 ] ticular thing (6).' ^ The agreement is either under

seal or not under aeaL If under seal, it is denominated

4i' The latest and best Fmrtff*it TVnr/iAr on ike Law of (hmirttels not under
Sex^i, \s the one anderthat title by Mr. Chitty; aod the Philadelphia ediUon
oi' 1>;U is muoh improTed, bj notes and leferenoes to American caaes, by
FT;»ni'i< I. Tn^ubeit. Esq., of the IVnnsjlvania bar.

> :2 Rr.v'i^ (ma. 442. Ptottd Rep. 17, a. Omm. Di§. tit Agreement, 1,
A. ThedtnaitioQ of aamtract in the English hiw, is dtstingoi^hed for
ne^tiie^and precision. The definition in the Cbtfe A<ii|NrfAm, No. 1101, is
ttKHT dt rt\i^, *' A contracts ** sars that code, '"is an agreement, by which one
or xtK^e per»»as bind themselves to one or more others, to give, to do, or not
to «U\ $ome thinsr.*^ This delinitioB is essentially the same with that in
/Xx'iiVr. T^iie mei OUif,. Xol 3. A contract, says Ch. J. Marshall 4 IITkrti-
rv>«« IvT, B an agT^^emeQt in vhich a party undertakes to do or not to do, a
|v\r;:i*uUr thinsr^ An able writer on contracts in the Awteriean Jiri$t, for
iVu^ber, IS^ prHtefs this definition whieh drops the word consideration, to

• Kv^ further definitions of a contract, ace 1 Piaisons on Contracts. 6. 1
ChiitT CVn. 11 Am. Ed. 11: FVecdman« J., in BieU «. Farisfa, 53 How. Pr.
:JIT. '

Tv> iVR5titute a valid contract there mnst be, 1st. The mutual assent of
t\v\t vv more |xftrtles i\>mpetent to contract. 2d. A good and valuable con-
s:viemCK>tt, aoil ^Vi. Som^ibiQsc to be dcvne or omitted which is the object of
the ^vntRK't. Tfe^re must be mutwality, c«- oHicurrence of wills. Sc« Har-
low r. Oartis. l-?l Mjc^Jv :«in Bower r." Ble^inc. 8 S. & R. 243; Tuttle t
l.oxe. 7 JohKTv 4T\^: IVuk^ss r, Xoble. 6 Iowa, 530; Esmay r. Gttrton. !>? 111.
4^^: Hill r. Kv^^enck, 4 W. * S. ^1; Fitzgerald r. Baker, 65 Mo. 13; Saw-
\y^r r Br\>r-Rirt, t»7 low;!c 67^; Smith r. Crawford, 81 HI. 296; Kronskop r.
SKuj;*, ol Wa^ AH; Biuwn i^ Cildw<ell, 23 W. Va. 1ST; Sheedy r. Roach,
1.H Mas& 47^



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a special ty, and if not ander seal, an agreement hj parol; and
the latter includes equally verbal and written contracts not under
seal (a). The agreement conveys an interest either in possession
or in action. If, for instance, one persons sells and delivers
goods to another for a price paid, the agreement is executedj and
becomes complete and absolute; Imt if the vendor agrees to 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 ren
dered, and because common justice requires it.'

Every contract, valid in law, is made between parties 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.

that of Blackstone. Bat 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 ob-
ligation 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 instmn\ent,
from averring a want of consideration. See Jnfra^ p. 464, note. In the Par-
fidas, part 5, tit. 11, law 1, a promise is defined to be **a verbal agreement,
mutually entered int6 between men, with an intention to obligate them-

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 73 of 108)