crease, improve, or add to the property of another, without his confent and approbation, he cannot recover any fatisfaction therefor, but if it be done by the direction, or confent of the proprietor, the labourer is entitled to an adequate compenfation. CHAPTER TWENTY-FIFTH. OF TITLE TO THINGS PERSONAL BY CONTRACT. THE title to things perfonal, may be acquired in three modes, by the act of the party in taking the poffeffion of things in common, which is occupancy, and the original and ultimate foundation of all right by the agreement or contract between perfons for the purchafe and fale of property, which is a derivative right and by the operation of law, as in the cafes of title by defcent, marriage, and fundry others. It is evident that individuals in the exercife of the right of occupancy and industry, in the cultivation of ground, and in manufactures, muft acquire a larger are of Tome kinds of articles, than are neceffary for their consumption and a lefs quantity of others. This was the origin of trade and mankind by bartering and exchanging thofe contodities, of which they had a fuperfluity, for those in which they were dete, applied their mutual wants, and furnished each other ciprocal accomodations. But when fociety had become polifhed, luxury encreafed, and a tafte for the productions of remote countries introduced, it was found difficult, to fupply the multiplied, and artificial wants of mankind by exchange. This made it neceffàry to agree upon fome particular article to be a common standard, to afcertain the comparative value of different commodities, and be the general reprefentative of property. The permanent fubftance of metals, rendered them the most convenient for this purpose. They were therefore adopted as the medium of exchange, and an imaginary value was ftamped upon then, by the confent and agreement of all rations. Money being established as the representative of property, facilitated the intercourfe of the remotest nations, and the introduction of commerce, diftributed every where, the elegant and useful productions of the mot Zz2 moft diftant parts of the earth; and laid the foundation of the unequal divifion of property, by furnishing to the fuperior industry and capacity of individuals, thofe means of accumulating riches, which were unattainable by perfonal labour in the rude and unpolifhed ages of fociety. Gold and filver, inftead of being confidered as of mere imaginary value, were deemed to be wealth itself, and the riches of a country, were estimated by the quantity of thofe precious metals which it poffeffed. The difcovery of America, opened to the avarice of mankind the rich mines of Mexico and Peru, and multiplied gold and filver to fuch an amazing extent, as greatly to leflen their value, and it is probable that the immenfe quantities that were in circulation, must have made it neceflary to have introduced fome other medium of commerce, had not the dif covery of a paffage by the cape of Good Hope, to the Eaft Indies, opened an inexhauftible demand for the gold and filver, that iffùed from the bowels of South America. The luxury of Europe, and America, las introduced a high relifh for the elegant manufactures, and the delicious productions of the Eaft; but the extreme fertility of this county, has rendered unneceflary the importation of commodities from other countries, for their own confumption, of equal value with their exports, and of courfe this balance can be difcharged only by fpecie. The defpotic governments of India, render the enjoyment of property precarious and infecure, and the proprietors frequently conceal their treafures in the bofom of the earth, for prefervation. The knowledge of the place of concealment muft frequently be loft, by the fudden or violent death of the poffeffor, and a variety of circumftances, refulting from the numerous and frequent revolutions of the government. It is an interefting fpeculation to the philofopher, to obferve the numbers of unhappy wretches, that are buried in the mines of South America, inceffantly digging for gold and filver, immenfe quantities of which, after circulating through many different countries, and being the fubject of many negociations, ultimately find the way to the Eaft Indies, and there return again to the bowels of mother earth, never to be called again into circulation, unlets by mere fortuitous difcovery. The adoption of money as a medium of exchange, and the intro duction duction of commerce, have in a great measure fuperfeded the origi. nal mode of acquifition by occupancy, and have led the way to acquifition by contract. This opens to us a moft extenfive and important fubject of enquiry. Contracts are the basis of all human tranfactions, and the mode by which property is transferred, and acquired, in the unbounded variety of mercantile negociations.The conftruction of contracts, the compelling of their performance, and the awarding of compenfation for their violation, furnish the principal fubject on which courts exercife legal, or equitable jurifdiction. • A contract is defined by the Roman law, to be the confent of two or more, to the fame thing. ƒ A contract is defined by the common law, to be an agreement upon fufficient confideration, to do, or not to do a particular thing. A contract may be defcribed, to be a tranfaction in which, each party comes under an obligation to the other, and each reciprocally acquires a right to what is promifed by the other. In this definition and defcription, are included every feoffment, gift, grant, leafe, loan, pledge, bargain, covenant, agreement, and promise for contracts may be confidered as the general name, and these are the feveral fpecies of contracts. By the laws of all nations, the consent of the parties is the effence of the contract. But for the purpose of fully inveftigating this important branch of our diquifitions, I fhall treat of it under the following heads, I. : Of the Parties to Contract. 2. Of the aflent to Contracts. 3. Of the fubject of Contracts. 4. Of the general nature of Contracts. 5. Of the Confideration of Contracts. 6. Of the Interpretation of Contracts. 7. Of the feveral fpecies of Contracts. 8. How Contracts may be difannulled, refcinded, or altered. 9. How Contracts may be fulfilled. 10. How Contracts may be released. 11. How Contracts may be barred. I' Of e Eft pactio duorum pluriumve in idem placitum confenfus.- I Domat's civil law, 32. f 2 Black. Com. 442. g1 Powell on Contracts, 6. 1. Of the Parties to Contracts. All perfons have the power of entering into contracts, unless difqualified by certain legal difabilities: but to afcertain what perfons have a moral power to bind themselves by their contracts and agreements, we must confider the nature of aflent. The term affent fignifies the acquiefcence of the mind to fomething proposed, or affirmed, and involves in confideration of law, first a physical power of affenting, fecondly, moral power, and thirdly, a deliberate and free ufe of those powers. Therefore the abfence of any of these capacities, in either of the parties, renders the perfon labouring under it, incapable of entering into an agreement to bind himself, or by virtue of his acts, others. : Idiots and lunatics, labour under a moral incapacity to af sent to contracts. They are not governed by reafon, but are influenced by an irresistible impulse like machines. All acts that are done by them, are abfolutely void but it feems to be a principle of the common law of England, that no man after the recovery of his fenfes, fhall be admitted to ftultify himself, and plead his own difability in avoidance of his contract; because of the poffibility that they may counterfeit fuch difability: but by the practice of the courts in this state, they have established the doctrine, that a man may ftultify himself in his own proper perfon, and may employ an attorney, and avoid his contract, by pleading his own difability, even at the time while he is labouring under the incapacity. Drunkenness, may be confidered during its operation, as a tem poray infanity, yet as it is confidered as a crime, and is of the party's own procuring, it will not be a fufficient ground to authorise a perfon to refcind his affent to the contract. Nor is it a reafon for relief in equity, unless the perfon were drawn into fuch debauch by the management and contrivance of him who gained the contract, and then equity may relieve. So of a man's being of a weak understanding, is no objection to his affenting to a contract: for courts of law cannot examine into the wisdom and prudence of men, in their manner of tranfacting their concerns, and difpofing of their estates. If a man therefore be legally compos, be he wife & Powell on Contracts, II, 14. or i Moffit vs. Davis, S. C. 1793. or unwife, he has the abfolute difpofal of his eftate, and will ftand for a reafon of his actions. A person that is a lunatic, or non compos at times only, may bind himself by contracts, made during his lucid intervals. Infants are under a legal incapacity, to make contracts to their disadvantage. The rule to decide the validity of their contracts, is whether there be an apparent benefit or femblance of benefit upon the face of the tranfaction. If neither of thefe appear, the contract is void : otherwise voidable or not, at the election of the infant, when he arrives at full age. But it is not neceffary that fuch affent should be express, it is fufficient that acts be done, from whence an affent must neceffarily be inferred. A married woman during her marriage, is incapable of affenting to a contract, to be binding on herself, or her husband, for in confideration of law, fhe is under the dominion and coercion of her husband and confequently has no moral capacity to assent to a contract respecting his property, or her own. Perfons under overfeers, are by ftatute, rendered incapable to make contracts. 2. Of the affent to Contracts. The affent to a contract, may be either express or tacit.— Express affent, may be manifested by fome gefture, speaking, or writing-or in fome inftances, by acknowledgment before magiftrates, and this may be either precedent, concomitant, or subfequent. A tacit affent may arise in several ways, it may arife from inaction or forbearance of action. A man by his filence, in cafe he be present and knows what is doing, is prefumed to give his af fent to what is done, unless it appear that he was awed into filence or in any way hindred from speaking. If a man make a leafe to another, on good confideration, and afterwards make a leafe to a third for the fame time, and the first leffee affifts in the bargain, and does not difcover his leafe, and it is not excepted in the fecond leafe, which is upon good confideration, then the fecond leffee, will even at law be preferred. But to k Cro. Car. 502. n lbid. 132. 134. I Pow. Con. 32. / Ibid. 59. justify m Ibid. 131.. |