was held, that the replication showed no consideration for this agreement (p). CH. II. s. 2. So, in all other cases where a promise is merely gratuitous, such promise is not binding in law (q). Thus, if the master of a ship tion). promise his crew an addition to their fixed wages, in consideration Promises of and as an incitement to their extraordinary exertions during a founded on the performstorm, or in any other emergency of the voyage, this promise is ance of duties nudum pactum (r);-the voluntary performance of an act which it was before legally incumbent on the party to perform not being, in law, a sufficient consideration. imposed by law. And so it would be in any other case where the only consideration for the defendant's promise, was the promise of the plaintiff to do or his actually doing something, to do which he was previously bound, either to the defendant or to a third person (s). And therefore, where two joint debtors had been taken in execution, and the plaintiff discharged one of them, it was held that, inasmuch as this gave the other a right to be discharged, the promise of a third person to pay the debt, in order to obtain such discharge, was void for want of consideration (t). So the law does not, in ordinary Promise to compensate cases, allow compensation to a witness for loss of time in attending witness. a trial upon subpoena; it being a duty imposed upon him by law to obey such subpoena; and therefore, a promise to pay such remuneration, in consideration of the party's attendance, is not in general binding (u). But it has been held, that although a man may be bound by his promise to one person, to do a certain thing, it is still possible for him to make a valid promise to another to do the same thing; and that therefore the delivery of goods by A. to B. at his request, is a good consideration for a promise by B. to A., although A. may have made a previous contract with C. to deliver the same goods to him (x). And so a promise by the father of a bastard child, to pay Promise by a sum of money to the mother if she will support the child, is good; because, by undertaking to support her bastard child absolutely, the mother assumes a larger responsibility than she is bound by law to do (y). (p) Monkman v. Shepherdson (1840), 11 A. & E. 411. (7) See Parker v. Baylis (1800), 2 B. & P. 73. (r) See Harris v. Carter (1854), 3 E. &B. 552; Clutterbuck v. Coffin (1842), 4 Scott, N. R. 509; Newman v. Walters 1804), 3 B. & P. 612. (s) Per Byles, J., Shadwell v. Shadso (1860), 9 C. B., N. S. 159, 178. (t) Herring v. Dorell (1840), 8 Dowl. 604. For other cases in which this rule is recognized, see per Parke, B., Jackson C.C. v. Cobbin (1841), 8 M. & W. 790, 797. (u) Willis v. Peckham (1820), 1 B. & B. 515; per Lord Tenterden, C. J., Collins v. Godefroy (1831), 1 B. & Ad. 950, 956. (x) Scotson v. Pegg (1861), 6 H. & N. 295. (y) Smith v. Roche (1859), 6 C. B., N. S. 223; and see Hicks v. Gregory (1849), 8 C. B. 378; Jennings v. Brown (1842), 9 M. & W. 496; Crowhurst v. Laverack (1852), 8 Exch. 208. D father to sup port bastard. CH. II. s. 2. Promise to pay third person's debt. Promise by creditor to accept less than full sum due. Foakes v. Effect of an act being done on the faith of a gratuitous promise. A promise to pay a debt already incurred by a third person is not available, unless it be made on a new consideration, such as forbearance (z). So, a promise by a creditor, to accept less than the full amount of his demand, or to give time for the payment of an existing debt, is generally void, as was held by the House of Lords in Foakes v. Beer (a). So a promise to revive a security which is void in its creatione.g. a promise to pay the amount of a promissory note, given to a creditor by an insolvent for the balance of his debt, to induce him to sign a composition deed-was held to be a mere gratuitous promise, and therefore void (b). And if A. have been guilty of a wrongful act or omission, which would render him liable in damages to B., and he promise to pay B. a sum of money as compensation; this is a mere gratuitous promise, unless it be made in consideration of B. releasing his right of action for such damages (c). So where the plaintiff declared that the defendant (who was sued in his individual character) was liable, in his capacity of executor, to pay a certain debt to the plaintiff, and then averred that, in consideration thereof, he personally promised payment: the Court held, that the declaration was bad, on the ground that no additional or new consideration was shown for the enlarged responsibility arising from the promise (d). The consideration should be coextensive with the promise in order to support it. But a distinction is to be taken between the case of a mere gratuitous promise, and that of a promise on the faith of which one party is induced to do some act which, but for such promise, he would not have done. And, therefore, although if an uncle promise to buy a house for his nephew, that is nothing; yet, if the uncle promise to buy a house for the nephew, but requests the nephew to enter into the contract of purchase in the nephew's own name, and the nephew does so; the law implies a promise on the part of the uncle to reimburse the nephew any part of the purchase-money which he may be called upon to pay (e). Promised A mere promise to subscribe to any charitable institution cannot, subscription to charity of course, be sued upon; but an attempt has been made to turn irrecoverable. such a promise into a legal obligation upon showing that liability has been incurred in reliance upon the promise being performed. (z) 1 Roll. Abr. 27, pl. 49. (a) Foakes v. Beer (1884), 9 App. Cas. 605; and see Bidder v. Bridges (1887), 37 Ch. D. 406, C. A., and post, Ch. XXIII., sect. 2. (b) Cockshott v. Bennett (1788), 2 T. R. 763; 1 R. R. 617. (c) See Smart v. Chell (1839), 7 Dowl. 781, 786. (d) Rann v. Hughes (1764), 7 T. R. 350, n. (a). (e) Crosbie v. M'Doual (1806), 13 Ves. 148, 158, 160; 9 R. R. 161; Skidmore v. Bradford (1869), L. R., 8 Eq. 134. This was in a case where the promise was to give 20,000l. in five equal instalments, to the committee of a Jubilee Fund of a Congregational Union for the liquidation of chapel debts. After paying three instalments the promisor died. It was held, that the two remaining instalments could not be recovered against his estate, although it appears to have been the opinion of the Court that expenses for which the committee were legally liable (but no more) might have been recovered (ƒ). Cн. II. s. 2. tion). considera The consideration must also be such as the plaintiff has the Of impossible means of performing or causing to be performed; and it will, there- tions. fore, be insufficient if its performance be naturally impossible (g); as if the consideration be a promise, that A. shall go from Westminster to Rome in three hours. From such a consideration no benefit can be derived by the defendant; and, therefore, upon such a consideration no contract can be made, nor any claim to damages supported. And a promise is not binding, if the consideration for making it Legally impossible be of such a nature that it was not, in law, in the power of the party from whom the consideration moved, to complete such consideration, and confer the full benefit meant to be derived therefrom (h). Where, therefore, the plaintiff, an attorney, who was conducting a commission of bankruptcy, having received a debt due to the bankrupt, undertook to pay the defendant, who was solicitor of the bankrupt, the surplus of the sum so received, should any remain after defraying certain charges incurred by the plaintiff, provided the defendant would pay him his costs for conducting the commission; the Court arrested the judgment, because the plaintiff could not show on the record a contract which it was in his power legally to perform; and the defendant's promise, therefore, was without consideration (i). ment with bankrupt. Similarly a secret agreement by one creditor with a bankrupt, Secret agree. that the creditor would execute a deed on which an annulment of the adjudication in bankruptcy should be founded, and that the bankrupt should pay the creditor a sum of money at a future time, is invalid, and cannot be legally enforced (k). (f) Hudson, In re, Creed v. Hender(1885), 54 L. J., Ch. 811, per Pearson, J. g) See per Lord Kenyon, C. J., and Ashurst, J., Nerot v. Wallace (1789), 3 T. R. 17, 22, 23. If the condition of a bond be impossible at the time of making it, such condition is void, but the bond good. If it be in part impossible, the edition is void as to that part, but good as to the rest; Bro. Abr. tit. Faits, 318, pl. 37; 5 Vin. Abr. 110, 111, Con dition (C. a), (D. a); 1 Roll. Abr. 419; (h) See Macgregor v. Dover and Deal (i) Haslam v. Sherwood (1834), 10 Bing. 540. (k) McHenry, In re, McDermott v. Boyd, Levita, Ex parte, [1894] 3 Ch. 365, referring, amongst other cases, to Nerot v. Wallace (1789), 3 T. R. 17. Ch. II. s. 2. of Simple Contract (Consideration). Rule where And the same rule applies to cases in which the impossibility Requisites does not manifestly exist, as in the instances already given, at the time of entering into the contract, but where it appears subsequently thereto. And, therefore, if a man contract to pay a sum of money, or to do any other act, in consideration that another has contracted to do certain things on his part; and it turns out, before consideration anything is done under the contract, that the latter was incapable of doing what he engaged to do, the contract is at an end (1). the perform ance of the becomes impossible. Distinction when the con sideration is merely diffi cult. Engagement for the act of a third party. But a promise is not void against the party who makes it, merely because performance thereof is improbable, or difficult, or to use the language of the Court, in the case of Thornborow v. Whitacre -where it is "only impossible with respect to the defendant's ability" (m). To have this effect there must either be an actual impossibility in fact; or the law must forbid the thing to be done; or there must be a breach of moral duty involved in the doing of it (n); or the hardship of executing the agreement, must amount to a degree of inconvenience and absurdity, so great as to afford judicial proof that such could not be the meaning of the parties (0). And, accordingly, if a party, except in one of these cases, lay a charge upon himself by his own contract, he is bound to perform the stipulated act, or pay damages for its non-performance. For it is the duty of the contracting party in such cases, to provide against contingencies; and he will be presumed to have known, when he contracted, whether the completion of the duty he undertook was within his power, in fact; or whether the law would permit a fulfilment of his contract (p). It is upon this principle that an engagement entered into upon a sufficient consideration, for the performance of an act even by a third person, is binding,-wherever the act is such as he might do or omit legally, or without breach of duty-even although the performance of such act depends entirely on the will of the latter (q). Thus, a promise to procure the consent of a landlord to the assignment of a lease, is binding (r). And where one of several parties in a firm agreed to introduce the plaintiff, a stranger, into it, it was held that the agreement was valid; although the other parties were ignorant of its existence, and their assent was of course essential to the admission of the plaintiff (s). (1) Per Cur., Chanter v. Leese (1838), 4 M. & W. 295, 311. (m) Thornborow v. Whitacre, 2 Ld. Raym. 1164, 1165 (1706). (n) Per Littledale, J., Tuffnell v. Constable (1838), 7 A. & E. 798, 805, and see S. C. in Ch., 8 Sim. 60, post, Ch. XXIII. (0) Per Lord Eldon, C., Prebble v. Boghurst (1818), 1 Swanst. 309, 329. (p) Per Littledale, J., Tuffnell v. Constable (1838), 7 A. & E. 798, 805; and see Blight v. Page (1803), 3 B. & P. 295, n.; per Lord Kenyon, C. J., Worsley v. Wood (1796), 6 T. R. 718, 719. (7) Selw. N. P. 54, n. 7, 9th edit. (r) Lloyd v. Crispe (1813), 5 Taunt. 249; 14 R. R. 744. 68. (s) M'Neill v. Reid (1852), 9 Bing. CH. II. s. 2. Of considera A partial insufficiency of consideration does not ordinarily annul a contract, provided there be an adequate consideration left to support it (t). And so it would be if the promise were in consideration, not only of the forbearance of a debt due from the defendant to the plaintiff, but also of the forbearance of another claim which could not be sustained (u). But if there be an entire consideration tions void in for the defendant's promise, made up of several particulars, and part. one of these consist of an agreement by the defendant, which the Statute of Frauds requires to be in writing, and which, for want of such writing, is void, the whole consideration is void, and the promise cannot be supported (x). sideration in Thus far as to the quality of the consideration which is neces- Of the consary to support a simple contract; let us now advert, shortly, to regard to the consideration regarded with reference to the time of its per- time. formance. As to time, a consideration is either, 1st, executed, or something done before the making of the defendant's promise; 2ndly, executory, or something to be done after such promise; 3rdly, concurrent, as in the case of mutual promises; or 4thly, continuing. must be First. A past or executed consideration is not sufficient to Executed consupport a contract, unless such consideration was moved by the sideration precedent request, either express or implied, of the party pro- moved by previous mising (y). Therefore, where A.'s servant was arrested for а request. trespass, and J. S., who knew A., without his knowledge bailed the servant, and afterwards A., for his friendship, promised to save him harmless; it was held that the promise was void, because the bailing which was the consideration, was the voluntary courtesy of J. S., and was past and executed before (z). And a promise without any new consideration, to pay a debt already incurred by a third person, would fall within the same principle (a). But where the plaintiff's act is moved or procured by the request of the party who makes the promise, it will bind; for though the promise follows, yet it is not naked, but couples itself with the precedent request and the merits of the party procured by that suit (b); as if, in the case last put, the third person had been (t) See King v. Sears (1835), 2 Cr., M. & R. 48. (u) Guthing v. Lynn (1831), 2 B. & Ad. 232. (z) Mechelen v. Wallace (1837), 7 A. & E. 49; Head v. Baldrey (1837), 6 A. & E. 459; per Littledale, J., Mayfield v. Wadsley (1824), 3 B. & C. 357; see also Earl of Falmouth v. Thomas (1852), 1 C. & M. 89, 108; Thomas v. Williams (1830), 10 B. & C. 664. (y) See Eastwood v. Kenyon (1840), 11 A. & E. 438, 451, and p. 30, ante. (z) Hunt v. Bate (1568), Dyer, 272 a; Roll. Abr. (Q.), pl. 2, 3; Sidenham v. Worlington (1585), 2 Leon. 224, 225. (a) See Wood v. Benson (1831), 2 C. & J. 94; 1 Roll. Abr. 27, pl. 49. (b) Lampleigh__ v. Brathwait (1615), Hob. 105; Sm. L. C., vol. i. |