436 



CONTRACT CONTUMAT S'. 



respect to person* who filler into contracts in a state 

 of intoxication, the old law, with a view to deter 

 men from such practices, ilid not liold the contracts 

 void, so tliat tlie party might set them aside at his 

 own suit, upon the ground that no man should be 

 allowed to stultify himself, or allege his own vice to 

 excuse his non-performance of u contract. But this 

 principle, if it is now acted upon at all, is received 

 with great mollifications ; and, if there be any 

 undue advantage taken of the party's situation, he 

 will In- relieved. The common law, indeed, seems 

 originally to have disabled a party who was insane 

 from avoiding, after the recovery of his reason, any 

 contract made during his insanity ; partly upon the 

 maxim that no man should be permitted to stultify 

 himself, and partly upon the supposed danger, in ad- 

 mitting such defences, of overturning deliberate and 

 .solemn contracts. But his legal representatives, after 

 his death, were always allowed to avoid them ; and 

 when he has a guardian appointed, the guardian may 

 avoid his contracts in a proper suit ; so that the doc- 

 trine, if it now exists (and it has been much ques- 

 tioned), is more a matter of form than of substance. 



In respect to who shall be deemed inf;;nts or mi- 

 nors, the laws of every civilized country have pro- 

 vided a certain age, at which persons shall be deem- 

 ed capable of all sorts of contracts, and for all pur- 

 I>oses sui juris. The time differs in different coun- 

 tries, and different times are assigned for different 

 acts. By the common law, all persons are infants 

 until twenty-one years of age, and then are consider- 

 ed as of full age for all purposes whatsoever. By 

 the same law, the ages of males and females are 

 different for different purposes. A male at fourteen 

 is at years of discretion, and may consent or disagree 

 to marriage, may choose his guardian, and, if his 

 discretion is actually proved, he may make a testa- 

 ment of his personal estate, though not of his lands ; 

 at seventeen, he may be an executor. A female may, 

 at seven years, be betrothed in marriage ; at nine, 

 is entitled to dower; at twelve, may consent or 

 agree to marriage ; at fourteen, may choose a guar- 

 dian; at seventeen, may be an executrix; and at 

 twenty-one, is of full age for all purposes. Both 

 males and females are capable of making contracts 

 for necessaries during their minority ; but in gene- 

 ral, other contracts do not bind them, unless mani- 

 festly for then- benefit ; and, though contracts made 

 with them cannot be avoided by the other side, the 

 infants themselves, when they arrive at age, may ra- 

 tify them ; for, as to them, they are generally void- 

 able, and not void. 



A contract, too, must be for some legal object or 

 purpose ; that is, for something which the law al- 

 lows to be done or omitted : for it is a general prin- 

 ciple, that all contracts which are prohibited by law, 

 whether they involve moral turpitude, or are merely 

 prohibited by positive law, are void and incapable of 

 binding the parties. A contract, too, must have a 

 sufficient consideration to support it. Considerations 

 are either valuable in themselves, or good. A good 

 consideration is such as flows from blood or natural 

 affection between near relations, such as parent and 

 child. In respect to such considerations, it may be 

 said, that they are, as between the parties, generally 

 sufficient to support an executed contract ; that is, 

 a contract which lias completed its operation by a 

 transfer of the thing, such as a gift or grant, or as- 

 signment and delivery of a thing. But where the 

 rights of third persons, such as creditors, intervene, 

 such gifts, or grants, or assignments, are not always 

 valid, as against them. For a man must be just be- 

 fore he is generous. But in respect to good consi- 

 derations, if the contract is not executed, it is a mere 

 chose in action, such as the promise to pay money, 



or to deliver goods, or to give a tiling: such a con- 

 tract has no legal obligation, and cannot be enforced 

 in a suit, in a court of law. It is generally deemed 

 a voluntary promise or naked pact. A valuable 

 consideration is one arising from, or on account of, 

 money or goods received, or services done, or other 

 contracts of reciprocal benefit, or marriage, or a loss 

 or injury, or forbearance of right. In BUmdl 

 if a promise is made on any of these or the like ac- 

 counts, it is binding in law. If A promises to pay ten 

 pounds to B for goods sold to A, or money borrow- 

 ed, &c., it is a binding contract. So, if A promises 

 to pay B a debt due trom C, if B will forbear, for a 

 certain time, to sue C, it is a binding contract. So, 

 if A has done an injury to B's lands or goods, and 

 promises to indemnify him, it is a good contract. In 

 all these cases there is a mutuality of interest or 

 consideration a quid pro quo. But a mere moral 

 obligation creates no contract ; as if A promises to 

 give a pauper his clothes, or to supply him with ne- 

 cessaries. 



But though in general, a contract is not binding, 

 unless made upon a valuable consideration, there are 

 certain forms in the common law, as there are in the 

 civil law, by which a party may bind himself without 

 such consideration. If, therefore, A enter into a 

 written contract, under his seal, with B, to pay him 

 a sum of money, or do any other act, there the com- 

 mon law considers the deed of such high solemnity, 

 that it will hold it binding. It deems it as import- 

 ing a valuable consideration, or rather will not suf- 

 fer the contrary to be proved, and acts upon the 

 solemnity of the instrument as, of itself, of paramount 

 obligation. There are certain contracts which the 

 common law requires to be done in a particular 

 mode to give them validity, and therefore another 

 requisite is, tliat the contract must be in due form. 

 There are certain things, which can be conveyed or 

 transferred only by some written instrument or deed, 

 such as incorporeal hereditaments, as rights of ways, 

 easements, &c. ; and, generally speaking, lands can 

 now be granted only by deed. There are, also, 

 many cases specially provided for by statutes, in 

 which contracts are not binding, unless reduced to 

 writing, and signed by the party or his agent. 

 Among these are contracts for the debts of another, 

 contracts respecting lands, and contracts respecting 

 goods beyond a certain value. 



CONTRA VALLATION ; a line formed m the 

 same manner as the line of circumvallation, to defend 

 the besiegers against the enterprises of the garrison, 

 so that the troops carrying on the siege lie oetween 

 the lines of circumvallation and contravallation. As 

 the line of circumvallation must be out of reach of 

 cannon-shot from the place besieged, its circumfer- 

 ence is necessarily so great as to render both its erec- 

 tion and its defence difficult. It is, therefore, sel- 

 dom resorted to, and a corps of observation is gene- 

 rally preferred. 



CONTUMACY. (See Contempt.) The Latin 

 term contumacia is used, on the continent of Europe, 

 to express the offence of non-appearance in court of 

 a person summoned judicially. In civil causes, a 

 person, in such case, may be properly made liable to 

 a decision against him, for his neglect in not appear- 

 ing to defend his rights ; but, by an extension of the 

 principle to criminal cases, persons are often senten- 

 ced, in their absence, to punishment in contuma- 

 ciam, as it is called, particularly those who are 

 charged with political offences, who can expect little 

 justice under despotic governments. Such sentences 

 are manifestly unjust, since an innocent person 

 ought not to suffer punishment, even if he courts it, 

 and neglects the means of defence. Sentences in 

 contumaciam , in criminal offences, therefore, are 



