Сн. 1. 2 Day's Ca. 24.-Powell on Con. 330, 368.-3 Bos. & P. 247 to 256, Vennal v. Adney.— 10 Johns. R. 249, 250. 3 Bl. Com. 258. and against law, where is such an equity system to end? It is also absurd to publish thousands of mere dictums and leanings, &c. when there are published more legal decisions of high and full courts, than any man can read to good purpose. As to equity cases, they have become almost infinitely numerous, and but a small part of them are of much value, or use in the United States; hence they are in this work very briefly stated, except Federal cases in ch. 225. But references to equity cases are very numerous, so that when one shall have occasion to use or study them, he will find them largely referred to; and if each equity case be decided on the minute and peculiar circumstances of it, equity cases must increase a vast deal more than law cases, and when each case is so decided it can be of but little use in other cases; cases in law, and especially in equity, varying as human faces vary. ART. 8. Considerations when good or not. It has already been observed, that contracts and agreements affect almost all the concerns of men with each other; and that the basis of each one is a proper consideration. It is so as well in a moral as a legal view; for either on moral or legal principles, this consideration is the cause or motive that induces a man to act, and to bind himself, by his agreement or contract; and morality no less than law, decides that men ought not to act or bind themselves to do this, or not to do that, without reasonable motives or causes moving them so to do. So is the experience of mankind; for in no age or country has a rational man been expected to act without a reason, or to make promises or engagements, without motives, reasons or causes, or in other words without a proper consideration. If, as to this, there has been any difference in the eyes of morality, and in the eyes of the law, it has been, merely, as to the quantity or degree of this consideration. In some cases morality may measure its adequacy more nicely than the law does, as the law considers it impracticable to measure it very accurately; but natural affection will not support assumpsit, nor will love between the sexes. A written promise requires consideration as much as a parol one. 1. The law, founded in reason, will not enforce a promise made by one, or imply he makes one, when there is no lawful sufficient consideration. It is intended in the residue of this chapter, briefly to examine when there is or is not, this consideration; and, generally, it must be a benefit to the deft. or a trouble or prejudice to the plt.; and the law holds a consideration sufficient, which is a legal inducement to one to make the agreement or contract. Hence one's being a member of a society is a sufficient consideration for the law's implying his promise to pay a judgment rendered against him. CH. 1. Art. S. 2. Lord Mansfield, in this case said, "where a man is under a legal or equitable obligation to pay, the law implies a promise, though none was ever actually made; a fortiori, a n legal or equitable duty is a sufficient consideration for an ac- Cowper 290, tual promise. Where a man is under a moral obligation, which Hawkes v. no court of law or equity can enforce, and promises, the hon- and 1 Esp. Saunders, esty and rectitude of the thing is a consideration; as if a man Ca. N. P. promises to pay a just debt, the recovery of which is barred 279, 723.-1 by the statute of limitations; or a man, after he comes of age, El. 741, Barpromises to pay a meritorious debt contracted during his mi- ker v.Halifax, nority, but not for necessaries; or if a bankrupt, in affluent 15 ple of the circumstances after his certificate, promise to pay the whole Civil law. of his debts; or if a man promise to perform a secret trust, or a trust void for want of a writing, by the statute of frauds." See 1 Hen. and Mun. 213; 3 do. 144 to 199. Stra.237.Cro: Dig. 44, 7, 10.-Dig. 12, 1, 14. [Nuda pacta, 3. By the law merchant, want of a consideration is no essential defect in a contract. While a note remains between the maker and payee, it is governed by the civil or municipal law, also in Bracton.] law, and the want of a consideration is a clear bar to recov ering any thing on it, on the ground it is nudum pactum; but when third persons become fairly interested in it, it is not open to this objection; because after it is negotiated, its operation is governed by the same law as a bill of exchange, which is the law merchant. Exceptions if negotiated after due, &c. Powell on Con. 341, see Art. 46; Chitty on bills, 3— the contract being in writing does not make a consideration unnecessary; 1 Caines R. 387; 4 Johns. R. 235, 236, 296, 304. Submission tion for a note.-3 166. Crow v. Ro gers.-3 Burr 1663 to 1676, 4 So wherever a man is bound, in honor and conscience, to do a thing, and promises to perform, he is held to do it. to arbitrators But another principle, also, is to be regarded in considering is a good the foundation of contracts; in forming and enforcing which, considerano man, against his will or consent, or in other words without his request expressed or implied, is to be laid under an obliga- Caines R. tion to perform, by reason of an act of another. But a stran ger to the consideration cannot have an action. 1 Stra. 592. 5. In this case it was decided, that a mere general promise, without benefit to the promiser or loss to the promisee, was a nudum pactum; as a past consideration, &c. 2 Strange 933. 6. If one promise to pay for goods delivered to a third per- Rose v. Vau son, it is good at common law, and on the statute of frauds, Murop and if in writing; but where one undertakes to pay the debt of Hopkins. another, the action will not lie, if the consideration be past 2 Morg. Ess. at common law, nor if not in writing, by the statute of frauds. 69, 86. ART. 9. "The law does not measure the quantum of the consideration;" therefore, "the least spark of a consideration will 3 Burr. 1663 be sufficient." As when A gets a judgment against B, and Cro. El. 67, Sturtin's case.-Cro. Car. 70, 77,Rolle v. Thorp.-Pow. on Con. 343.-3 Wood's Con. 223.Salk. 387. Pillans and Same case Сн. 1. Art. 12. Imp. M. P. 161.-2 Bl. Com. 445.1 Bac. 170. 1 Esp. 88. Yates 3 Burr. 1663. gives me a power of attorney to sue it to my use, and C in consideration I will forbear to sue it, promises to pay it, his promise binds him. Though the law will not weigh the quantum of the consideration, or on account of its smallness as a consideration, view the contract as void, yet the smallness of the consideration may often be taken as evidence of fraud or deception, or of some clear mistake in the bargain, and so be the means of avoiding it on this ground. A penny will raise a use, so will a pepper corn reserved in a lease. ART. 10. The suspension of the plt's right any time is a ground of promise. 1. If, therefore, A owes me a debt, and I agree not to call on him for payment ever so little a time, at B's request; and he promises to pay it, and thereby I am induced so to suspend it, B is liable. 2. And if the act be done at the request of him who makes the promise, it will be a sufficient foundation to engraft the promise upon, as the shewing a deed, &c.; but not if the request be made by the advice or influence of the other party; as if I persuade a sailor to resolve to have a protection, and he requests me to procure it for him, he shall not be held to pay me for my trouble in getting it, for I drew him in to make the request. ART. 11. Any damage to another, or suspension, or forbearance of his right, is a good consideration of a promise, though there be no actual benefit to the party undertaking; for if the promisee is to sustain a loss, or damage, lose a right or have it delayed, it is as good a ground of a promise as an advantage to the promiser; for whenever the promisee sustains any disadvantage at the promiser's request, it is but reasonable, his promise made for the promisee's benefit should hold or be 2 Ld. Raym. binding; and it seems to be a general principle, if one for a 1164, Thorn- valuable consideration undertakes to do what is even impossible, and fails to perform, an action lies against him. But where one partner undertakes to get insurance on their vessel for himself and partner, and neglects, it is no consideration, Ch. 73 a. 2, s. 8, the case. borow v. Whitacre. Salk 26, Coggs v. Barnard.-1 Bac. Abr. 28.-5 T. R. 143, Elsee v. Gateward.-6 East 569. 1 Wils. 88, &c ART. 12. Want of consideration does not apply, when the undertaker enters on doing the thing. As when one entered upon the business of moving a hogshead of brandy, and did it so negligently, that it was burst and lost; it was held the action lay against him, and was grounded on the misfeasance, or deceit to the plt. But if there be no consideration, and the party do not enter upon the business he is not liable ; not on contract, for there is no consideration to support it; and not for doing the business badly, not commenced. 2. It follows that if A, without any consideration, promises to build me a house by such a day, and he does not enter upMartendale v. Fisher.-1 Ld. Raym. 124.-10 Johns. R. 90, 91. on the business, I can have no action against him. But he may be liable for negligence, if he do enter upon it, and do it negligently or unskilfully, for whenever one begins a piece of business for another, the law implies an obligation to do it faithfully and well. Promise for promise is a good consideration without the plt's. performance; or mutual promises.Hob. 88. CH. 1. Art. 14. Imp. M. P. 161.-2 Bl. Com. 445. Banwell. ART. 13. A prior moral duty is a sufficient ground of an actual promise, as a promise to pay a just debt that is outlawed; but the law will not raise an implied promise upon it. 2 East 505, See 3 Bos. & P. 249, 252, many cases in a note on this point. Atkins v. 2. Therefore, where one parish supported the pauper of 3 Mass. R. another, without any agreement, it was held the latter was not 438, Salem v. liable on any implied promise; but would be liable on an actu- Andover.2 Ld. Raym. al promise; the parish being under a moral obligation to sup- 757. port its poor; its promise, in fact, binds, but the law will not raise an implied promise in such a case. See 10 Johns. R. 249, 250, medicine to slave without the master's request. §3. In case of a feme covert; as she having a separate estate settled to her use, gave a bond to repay monies by her executors, advanced at her request, on security of the bond, to her son-in-law; and after her husband's death she wrote, promising her executors should settle the bond; held that assumpsit lay against her executors on her promise. 5 Taun. R 36, 48, Lee V. Muggeridge. And held because she was bound morally and conscientiously, to pay the debt, was her express assumpsit good, made on that ground alone. It is best, as was done in this case, to state facts shewing the moral obligation, &c. ny. See art. ART. 14. A deliberate contract in writing, is primâ facie, Salk 129, though not conclusive evidence of a consideration. A written Clerk v. Martin.-Imp. M. promise is, of itself, evidence of deliberation generally, and P. 392.-3 generally, a deliberate promise is evidence of a consideration T. R. 421, or of reasonable wotives inducing the promise; but not conclu- Petrie v.Hansive, for a man may in some cases promise without a cause, 46 post. and then he is admitted to prove that there is no consideration, even in the case of a bill of exchange. Hence in Petrie v. Hanny, Lord Kenyon said, "If it appears to the court that a bill of exchange is given without consideration," it is void, ex quo non oritur actio, or if for an illegal consideration, the whole matter may be examined," but the consideration in a voluntary bond cannot be gone into. and so in 2. The Sup. Jud. Court of Massachusetts, June Term Pierce v. Mc 1785, carried the principle so far as to hold, that in an action Intire, Essex, even by the endorsee of a note against the maker, want of con- Lewis v. sideration might be given in evidence; for want of considera- Frund, Estion, said the court, made the note void ab initio, and endor- sex, 1790.See Chipson v. Obrien. Сн. 1. Art. 15. Imp. M. P. 13, 155, 158. 274. note within the statute imports a consideration, unless sing it over could not make it good; and that the endorsee might look to the endorser. But the authority of the last case may be now questioned, and it will appear on examining the modern cases, that this want of consideration cannot be shewn in such an action, unless the endorsee takes the note after it is dishonored, or when he has reason to suspect it. Nor can the maker impeach his note after endorsed, for by endorsing it he gives it currency. ART. 15. As to impeaching a promissory note on account of a consideration. § 1. By the statute of the 3d and 4th of Anne, adopted in Massachusetts and most of the United States, a money note payable to one or order, or bearer, in writing, is negotiable. "The want of consideration it is evident, will be a sufficient defence to an action by one party against another, from whom he has immediately received the instrument; for Pow. on Con. according to the general principles of law, no contract can be 340.-Every be supported without a consideration; and accordingly it frequently occurs that the deft. rests his case on the circumstance of the bill or note having been merely for accommodation." "But where the plaintiff has, in fact, given a consideration to the person from whom he immediately received the instrument, any preceding party being sued on it, cannot protect himself by saying that he himself had no value of the party to whom he gave it; for by making himself a party to the instrument, he contributed to its currency." "And in this resRhodes.-See pect there is no difference, whether the person who actually 2 Phil. Evid. gave a good consideration, knew that the instrument was given 15, 16. without one or not." And generally the illegality of the consideration cannot be shewn to impeach a note, or bill, in the hands of a subsequent holder. the contrary appears in the note itself. Johns. R. 217. Johns. Dougl. 632, 7 Mass. R. 14. berts. Stra. 674, Jeffe ries v. Austin. All these ca ses are cited 1 Esp. 33. Imp. M. P. 406, 407. 2. But, as will be stated in another chapter, one, who puts his name to a negotiable security, may impeach it in regard to any matter arising after he so sanctions its currency. 3. As between the drawer and payee of the note, the defendant may go into the consideration, and shew it is illegal, as given on a smuggling consideration, or delivered as an escrow; but the endorser was not allowed to prove he indorsed the note to the plaintiff, an endorsee, to enable him to sue the maker only. Bull. ch. 274, Snelling v. Briggs, but in Guichard v. Roberts, the court allowed a note absolute on the face of it, to be proved to be a conditional one; (but quere) so to shew no consideration as between maker and promisee. 2 D. & E. 71; 3 do. 421; 7 Johns. R. 383; 13 do. 52, 54; 15 do. 230. 4. By certain statutes a note is void even in the hands of an innocent endorsee; as by the 9th of Anne against gaming; and Bowyer r. Bampton.-Dougl. 247, 636, 735, 744, Lowe v. Waller.-Kyd on Bills 154, 155. 2 Stra. 1155. |