mon law, that a mere voluntary act of courtesy would not uphold an assumpsit, but a courtesy showed by a previous request would support it. (e) There must be something given in exchange, something that is mutual, or something which is the inducement to the contract, and it must be a thing which is lawful and competent in value to sustain the assumption. A contract without a consideration is a nudum pactum, and not binding in law, though it may be in point of conscience; and this maxim of the common law was taken from the civil law, in which the doctrine of consideration is treated with an air of scholastic subtlety. (f) * 464 * Whether the agreement be verbal or in writing, it is still a nude pact, and will not support an action, if a consideration be wanting. This was finally settled in England, in the

(e) Lampleigh v. Brathwait, Hob. 105 b. But it is understood to be now settled that, in a case of simple contract, if one person makes a promise to another for the benefit of a third party, the third party may maintain an action upon it, though the consideration does not move from him. Dutton v. Pool, 2 Lev. 210. S. C. 1 Vent. 318. 3 Bos. & Pull. 149, notes to Piggett v. Thompson. Schemerhorn v. Vanderheyden, 1 Johns. 140. Starkey v. Mill, Sty. 296. Cumberland v. Codrington, 3 Johns. Ch. 254. Parker C. J., in 17 Mass. 405. 3 Pick. 91. Hosmer Ch. J., in 7 Conn. 347. Barker v. Bucklin, 2 Denio, 45. Walworth Chancellor, 2 Denio, 417.8

(ƒ) Dig. lib. 2, tit. 14, ch. 7, sec. 4. Idem, 19, 5, 5. Though a sale without a price was not binding as such by the Roman law, yet it might, under certain circumstances, operate as a donation, if accompanied with delivery. Voet, Com. ad Pand. 18, 1, 1. D'Orgenoy v. Droz, 13 Louis. 382, 389. Sir William Blackstone, in his Commentaries, vol. ii. p. 444, has borrowed and explained the distinctions in the Pandects upon the four species of contracts, of do ut des, do ut facias, facio ut des, and facio ut facias. This classification of contracts embraces all those engagements which relate to the interchange of commodities, money, or labor, as, 1. Stipulations mutually to give; 2. Stipulation on the one part to give, in consideration of something to be done or forborne on the other part; 3. Stipulation on the one part to do or forbear, in consideration of something to be given on the other part; 4. Stipulations mutually to do or forbear to do. Each of them implies a reciprocity of benefit. A unilateral engagement, gratuitously

* Delaware & H. Canal Co. v. The Westchester C. Bank, 4 Denio, 97. Beers v. Robinson, 9 Barr, 229. Lawrence v. Fox, 20 N. Y. 268.

1 The English Law Review, vol. x. No. 19, May 1849, p. 56, contains a learned article upon the doctrine of nudum pactum, as administered in the civil and common law. The writer adduces very strong arguments against the policy of the rule of the English law; and he shows that Blackstone and other writers who cite the civil law for the maxim were mistaken. The rule as administered in the common law was not known to the civil law of Justinian. A stipulation was nudum pactum, and not enforceable in the civil law; not because it wanted a consideration, (in the sense we use that term,) but because it wanted the regular and solemn form of a stipulation which was necessary to give it validity. See, also, Smith's Greek and Roman Antiquities, (Obligationes,) pp. 820, 821. Mouton v. Noble, 1 Louis. Ann. 192. Harris v. Clark, 3 Com. 93. Phelps v. Pond, 23 N. Y. 69.

House of Lords, in Rann v. Hughes, (a) and the rule has been adopted, and prevails extensively in this country. (b) The rule, that a consideration is necessary to the validity of a contract, applies to all contracts and agreements not under seal, with the exception of bills of exchange and negotiable notes, after they have been negotiated and passed into the hands of an innocent indorsee. The immediate parties to a bill or note, equally with parties to other contracts, are affected by the want of consideration; and it is only as to third persons, who come to the possession of the paper in the usual course of trade, without notice of the original defect, that the want of a consideration cannot be alleged. (c) The rule, with this attending qualification, is well settled in English and American law, and pervades the numerous cases with which the books abound. In contracts under seal, а consideration is necessarily implied in the solemnity of the instrument; and fraud in relation to part of the consideration is held to be no defence at law: though fraud in respect to the execution of the specialty, and going to render it void, is a good defence. (d)

* A valuable consideration is one that is either * 465

made, binds the offerer until rejected, or the acceptance be unduly delayed, according to the French, Dutch, and Scotch law. Toullier, Droit Civil Français, t. vi. n. 30. Code de Commerce de Hollande, art. 1, p. 65. Bell on the Contract of Sale, Edin. 1844. p. 34. In England, it is a nude pact, and no contract. See infra, p. 477. (a) 7 Term Rep, 350, note. 7 Bro. P. C. 550, S. C.

(b) Burnet v. Bisco, 4 Johns. 235. Thacher v. Dinsmore, 5 Mass. 301, 302. Hosmer v. Hollenbeck, 2 Day, 22. Cook v. Bradley, 7 Conn. 57. Brown v. Adams, 1 Stewart (Ala.) 51. Beberleys v. Holmes, 4 Munf. 95. Parker v. Carter, Ibid. 273.

(c) Bay v. Coddington, 5 Johns. Ch. 54.

(d) Dale v. Roosevelt, 9 Cowen, 307. The N. Y. Revised Statutes, vol. ii. p. 406, secs. 77, 78, declare that a seal is only presumptive evidence of a sufficient consideration, and liable to be rebutted equally as if the instrument was not sealed, provided such a defence be made by plea or by notice under the general issue. This statute provision was an innovation upon the common-law rule. Case v. Boughton, 11 Wendell, 106. It is not to be understood that a voluntary bond would be enforced, if it be admitted by

2 A. was indebted to B., and B. to the plaintiff; B. gave the plaintiff an order on A. for a quantity of wood, which, upon presentment to him by plaintiff, he accepted, and promised to deliver the wood, but when it was due, refused. Held on demurrer, that no consideration for the promise was shown. Ford v. Adams, 2 Barb. (N. Y.) 349. But where A. being indebted to B., lent money to C. on his promise to pay an equal amount to B. on account of A.'s debt, held that there was a good consideration for the promise, and that B. might sue upon it. Lawrence v. Fox, 20 N. Y. 268. And see Farley v. Cleaveland, 9 Cowen, 639.

3 A voluntary bond by a father, made as a provision for a son or daughter, will be sustained against creditors as valid if a marriage has been subsequently had, on the basis of its being in force. Payne v. Mortimer, 1 Giff. 118.

a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made. (a)1 Any damage or suspension, or forbearance of a right, will be sufficient to sustain a promise. (b) 2 A mutual promise amounts to a sufficient consideration, provided the mutual promises be concurrent in point of time; and in that case the one promise is a good consideration for the other. (c) But if two concurrent acts are stipu

the obligee, by pleading or otherwise, that it was executed without any consideration. The principle is, that a bond, from the solemnity of the instrument, implies a consideration, and the defendant is estopped by the seal from averring a want of it. Wright v. Moor, 1 Ch. 157. Turner v. Sir George Binion, Hardress, 200. 2 Blacks. Com. 446. Sedgwick, J., and Parsons, C. J., 2 Mass. 162. In Indiana, by statute, (R. Statutes, 1838, p. 451,) consideration of specialties and other contracts (conveyances of real estate and negotiable paper excepted) may be inquired into under special plea, or, if given in evidence, on a trial at law.

(a) Jones v. Ashburnham, 4 East, 455. Lent v. Padelford, 10 Mass. 236. Patteson J., 2 Ad. & El. (N. S.) 859.

(b) Seaman v. Seaman, 12 Wendell, 381. Morton v. Burn, 2 Nev. & Perry, 297. (c) Where several persons subscribe to raise money for an object in which all feel an interest, the mutual promises of the subscribers form a valid consideration for the promise of each. But the agreement of a single person to make a donation to a public institution, without any undertaking on the part of the donee to do anything, is without consideration and void. Walworth, Chancellor, in Stewart v. Hamilton College, 2 Denio, 416, 417.8 Wilson v. Baptist Society, 10 Barb. (N. Y.) 308. If an agreement be optional

1 See post, p. 571, note b. Marriage is a valuable consideration. Dilkes v. Broadmead, 2 Giff. 113.

2 An agreement, by a son, not to complain of the distribution of his father's estate, forms no consideration for a promise by the father not to sue a note signed by his son. Bluett v. Bluett, 24 Eng. L. & Eq. 434.

This decision has been affirmed in the Court of Appeals. S. C. 1 Comst. 581. Barnes v. Perine, 15 Barb. (N. Y.) 249. S. C. 2 Kernan, 18. A consideration may be proved by parol, where none appears in the writing, the case not coming within the statute of frauds. In Kentucky, it would seem that such a promise would be valid; the duty of the trustees to appropriate the money according to the charter being regarded as a sufficient consideration. Collier v. B. E. Society, 8 B. Mon. 68. So it would be valid in Louisiana. Mouton v. Noble, 1 Louis. Ann. 192. This latter case gives a perspicuous explanation of the nature of the consideration or causa required by the civil law. See, also, Brouwer v. Hill, 1 Sandf. (N. Y.) 629. An agreement to take stock in a company, signed before its organization, is binding, the future advantages to the subscribers being a sufficient consideration. Plank Road Co. v. Griffin, 21 Barb. (N. Y.) 454. See further, on the consideration for subscriptions, Trustees v. Nelson, 24 Vermont, 189. Gittings v. Mayhew, 6 Md. 113. Barnes v. Perine, 9 Barb. (N. Y.) 202. S. C. 2 Kernan, 18. Johnston v. Wabash College, 2 Carter (Ind.) 555. Curry v. Rogers, 1 Foster, 247. Watkins v. Eames, 9 Cush. 537. An agreement by one to transfer shares of stock on which nothing had been paid, in consideration of the promise of the other party to accept the shares and assume the obligation of the original holder, was held to be founded on a sufficient consideration and was specifically enforced. Cheale v. Kenward, 3 De G. & J. 27. In Kellogg v. Olmstead, 25 N. Y. 189, the Court of Appeals decide that an

lated, as delivery by the one party and payment by the other, no action can be maintained by either, without showing a performance, or what is equivalent to a performance, of his part of the agreement. (d) If the consideration be wholly past and executed before the promise be made, it is not sufficient, unless the consideration arose at the instance or request of the party promising; and that request must have been expressly made, or be necessarily implied, from the moral obligation under which the party was placed; and the consideration must have been beneficial to the one party, or onerous to the other. (e) A subsisting legal obligation to do a thing is a sufficient consideration for a promise to do it; but it has been an unsettled point whether a mere moral obligation be, of itself, a sufficient consideration for a promise, except in those cases in which a prior legal obligation or consideration had once existed. The weight of authority is that it is not sufficient. (f) Though the consideration of natural love

5

as to one of the parties, and obligatory as to the other, it does not destroy its mutuality, if there be a sufficient consideration on both sides; as if one party stipulates that he will deliver salt when called on, and the other that he will pay for the salt so delivered. This is mutuality, and one promise is in consideration of the other. Cherry v. Smith, 3 Humph. (Tenn.) 19. Lester v. Jewett, 12 Barb. (N. Y.) 503.*

(d) If the act or duty be performed by A., and in consideration of which B. promises to pay, be such that it cannot, or from its nature may not be performed before the time fixed for payment by B., then A. may sue for the money without averring performance. But if the time be fixed for the payment to be made in consideration of the act, and the act be of such a nature that it may be done presently, and before the time of payment, then the act becomes a precedent condition to the payment. Thorpe v. Thorpe, 1 Salk. 171. 1 Lord Raym. 665, S. C. Callonel v. Briggs, 1 Salk. 112. Pordage v. Cole, 1 Saund. 319 d. Trimble v. Green, 3 Dana (Ken.) 356, 357. In this last case, the distinctions to be drawn from the authorities are justly and skilfully taken.

(e) Jenkins v. Tucker, 1 H. Blacks. 90. Livingston v. Rogers, 1 Caines, 584. Comstock v. Smith, 7 Johns. 87. Hicks v. Burnham, 10 Johns. 243. Garrett v. Stuart, 1 M'Cord (S. C.) 514. Wing v. Mill, 1 B. & Ald. 104.

(f) Smith v. Ware, 13 Johns. 257. Edwards v. Davis, 16 Idem, 281. Mills v. Wyman, 3 Pick. 207. Cook v. Bradley, 7 Conn. 57. Dodge v. Adams, 19 Pick. 429.

agreement between debtor and creditor that a debt past due, shall be paid at a future day, and shall remain unpaid and not be demandable until that time, is void for want of consideration.

L'Amoureux v. Gould, 3 Seld. 349.

5 It is finally settled in England, that a promise made in consideration of past illicit intercourse is void for want of consideration. Beaumont v. Reeve, 8 Ad. & El. (N. S.) 483. This case, as well as several others, approves the rule as laid down in the note to 3 B. & P. 249; see Geer v. Archer, 2 Barb. (N. Y.) 420, Ad. & El. supra; and see, also, Watkins v. Halstead, 2 Sandf. (N. Y.) 311, where it was held, that a promise by a wife, after a divorce, to pay for

affection be sufficient in a deed, yet such a consideration is not and sufficient to support an executory contract and give it val

Eastwood v. Kenyon, 3 Perry & Dav. 276. S. C. 11 Adol. & Ell. 438. Ehle v. Judson, 24 Wendell, 97. The question, how far a mere moral obligation was sufficient to raise and support an assumpsit, is learnedly and clearly stated and discussed in the note to 3 Bos. & Pull. 249, and the note to 16 Johns. 283; and the conclusion to which the learned editors arrived, seems to have been adopted in the cases referred to. And could not now be disputed, that wherever there is a moral obligation to pay a debt or perform a duty, a promise to pay that debt or perform that duty would be supported by the previous moral obligation. There is a strong instance, in Fairchild v. Bell, Brevard's MSS., cited in 1 Rice's S. C. Dig. p. 60, in support of the implied contract to pay for a meritorious service, founded on a moral obligation. The same doctrine is laid down by Baylies J. in Barlow v. Smith, 4 Vermont, 144, and in Glass v. Beach, 5 Idem, 176; but the promise must be express, and not implied. Lord Tenterden, in Littlefield v. Shee, 2 Barn. & Add. 811, admitted the doctrine, that a moral obligation was a sufficient consideration for an express promise, though he said that it must be received with some limitation. It is difficult to surmount the case stated by Lord Holt, in 1 Lord Raym. 389, that a promise to pay a debt contracted in infancy is valid. In the case of Eastwood v. Kenyon, Lord Denman observed, that the case of Lee v. Muggeridge was decidedly at variance with the doctrine in the note to 3 Bos. & Puller, 249, and so was the decision in Littlefield v. Shee; and Lord Denman concluded that a past benefit, not conferred at the request of the defendant, would not support a subsequent promise to pay, and that this conclusion was justified by the old common law, and that the principle of moral obligation did not make its appearance till the days of Lord Mansfield. The decision in Lee v. Muggeridge was laid down in too unqualified terms, and the doctrine in the note to B. & P. may now be considered as the better doctrine in England and America. But there is a distinction between promises which are void or only voidable, and the former are held not a sufficient consideration to support a subsequent promise. Cockshott v. Bennett, 2 Term, 763. In Hatchell v. Odom, 2 Dev. & Bat. 302, it was observed that it was not every moral obligation that was sufficient in law to raise an implied promise or to support an express one; and that such only were available considerations, which would originally have been good but for the intervention of some rule of policy. A promise to pay after the interdict is removed, will be valid, and may be enforced. The case of a promise to pay a debt barred by the statute of limitations, or a promise by a widow or an adult, to refund a loan of money made during coverture or infancy, are given as instances by Judge Gaston, in his clear and able opinion in the last case cited. So, a promise by an insolvent

goods furnished during coverture, was void. See, also, Waters v. Bean, 15 Geo. 358. But, in Hemphill v. McClimans, 24 Penn. 367, it was held, that a promise made by a woman during coverture, to pay for work done for her son, was sufficient consideration for a new promise, to the same effect, made after divorce.

By a statute in Maine no promise will revive a debt discharged by the bankrupt or insolvent laws, unless it be in writing and signed by the party. Acts of Maine, ch. 52, 1848. Rice v. Maxwell, 13 Smedes. & Marsh. 289.

The same rule of law has been adopted in New York, as to promises to pay, where the original cause of action has been barred by the statute of limitations. Code of Procedure, sec. 90, ch. 4, tit. 2, part 2. A new promise to pay a debt made after a decree in bankruptcy, held valid. Corliss v. Shepherd, 28 Maine, 550.