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Mass. act of Mar. 4, 1786 against it; so by the English statute and Mass. act of March 16, 1784, against usury; and though the note be given for a valuable consideration, and the endorsee have notice of the gaming or usury; for the statutes declare the contracts void and of no effect.

CH. 1.

Art. 16,

5. A smuggling consideration avoids the note between the 1 W. Bl. original parties.

445.

344, Jacob v.

6. The rule that "an assignee must take the thing assigned, Doug. 632, subject to all the equity to which the original party was sub- 636-Salk. ject," does not apply to negotiable paper; for if this rule Hussy-Bul. should be "applied to bills and promissory notes, it would N. P. 274. stop their currency." They cannot be impeached in a suit by or against a third person, as an endorser or acceptor.

7. The established rule now seems to be, that where the note is over-due, and so there is room to suspect it when endorsed, it may be impeached in the hands of the endorsee; and the principle may apply in any other case, where he has Kyd on Bills reasonable cause of suspicion; as if the note or bill is, on the 160.-3 T. R. face of it, dishonored.

80, Brown v.

Davies,

ken v. Ster.

8. The payee of a note, after it became due, and noted for Banks v. Colnon-payment, endorsed it; in an action on it by the endorsee the well.-7 T. court allowed the maker to prove he paid it to the payee be- R. 423, Borfore it was endorsed; because not being paid when due, a sus- ling. picion naturally arose against it. The note of Banks was payable on demand, and was endorsed 18 months after it was made.

§ 9. But the above rule does not apply to bankers in England, who issue their checks; as where one issued one 9 months after it bore date. Held he could not object, though the consideration failed, as between him and the deliveree, in a suit by an after holder for a valuable consideration, and without 2 Bos. & P. notice. The discharge of one from prison, legally committed, is a good consideration of his note, and it is valid.

151.

ART. 16. There are two kinds of considerations, which are 2 Bl. Com. good, such as blood and natural love and affection. 2d, Val- 297. uable, as money, marriage, &c. Deeds and contracts made. only on good considerations, are often deemed merely voluntary; and are set aside in favor of creditors and bona fide purchasers.

332.-New. on Con. 65.

2. All agree that want of consideration does not affect a Pow.on Con. contract under seal at law, but equity will inquire into it and not aid it, if the consideration be not valuable or meritorious. 3. And a contract for a good consideration only, is valid as against heirs, executors, or administrators.

4. The plt. paid a sum of money to the master of a work 9 East 49, house to the use of the poor in it, to avoid a prosecution for Taylor v. Lindsey. an offence charged against him, and paid by the consent of

Сн. 1. the magistrate. Held he might recover it back any time before Art. 17. applied, there being no consideration to establish a contract→→ master was the plt's agent.

New.on

Cases in equi

White v. Da

$5. Considerations in equity. This must be such as will inCon. 65,80.-duce the court to decree a specific performance of an agreety, 257. ment; a parent's agreement with a child in consideration of Ves. 30, 34, love and affection is good. But if the price in any case appear to be inadequate, equity will not, but in special cases, enforce the agreement; as where the estate is sold for half its value, though at auction; but Lord Eldon thought otherwisewho held a sale at public auction, and no fraud, could not be set aside for mere inadequacy of price, yet may not be enforced.

mon.-10 Ves. 470.

3 Atk 185, Goring v.

Nash.-Pr.

6. For inadequacy of price, equity will not rescind a contract, though it will enforce it or not, according to circumstanCh. 475, Far- ces; and in some cases it decrees specific performance of a saher v. Rob- contract not founded on a valuable consideration, but only on inson. a parent's natural love and affection for a child. A provision for an illegitimate child is no consideration; he is filius nullius in equity as well as in law. See ch. 32 a 4, 11; New. on Con. 357 to 361.

1 Ver. 427.1 Ch.Ca. 243,

Lowther.

$7. On the same principle, equity views a provision for a Billengham' child a good consideration, it does a provision for a wife, even though made after marriage, and by a voluntary bond to settle a jointure on her, and settling lands accordingly; but secus as to a collateral relation, but in very special cases. A remainder to a brother in tail, even in marriage articles, is not a consideration in equity; but still there may be some other consideration in the articles or contract to entitle him; and see ch. 225, a 2, s. 7; Trevor v. Trevor, 1 P. W. 631; Randall v. Willis, 5 Vesey, jun. 273, 276.

1 P. W. 727. -1 Atk. 1.Ch. 1 a. 29, s.

-2 P. W.

8. So a compromise of a doubtful right is a sufficient consideration in equity of an agreement; and so one made to save 3.-3 Ves. 412. the honor of a father and his family; so to settle boundaries; 1 Vesey 144 and 450, Penn v Lord Baltimore; so the peace of families is a consideration; so an agreement to make mutual wills; to share what a person shall give by will; but in an agreement merely voluntary there is no consideration to rest upon.

181.

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ART. 17. A mere voluntary courtesy is not a consideration to support a promise, unless moved by the defendant's request, and unless the act done pursue the request; for that is a kind of commission for the purpose. Hob. 106, Lampliegh v. BrathWaite, ch. 1. a. 37.

2. And what has been undertaken without a prospect of a certain recompence is such a courtesy; as where one works for A, with a view to a legacy, and is disappointed, he cannot have

Сн. 1.

Art. 22.

recourse to wages; there is no intent or assent in, or agreement by the parties, expressed or implied, whereon to ground an action. But 3 Johns. R. 199, Jacobson v. Le Grange, seems contrary, and the plt. recovered wages by verdict. ART. 18. Considerations executory, &c. §1. A consideration is so, when the plaintiff promises to deliver a thing, and the defendant promises to pay, and is traversable, and must be laid Con. 82, 87. with a venue.

2. If A agree to accept a certain sum of B, in discharge of all accounts between A and C, B's brother abroad, and give a release to C's use, as he should be required; and B promises A to procure for him a general acquittance from C, when he shall return, this is a good consideration; for B's paying the sum and A's accepting it, is sufficient, though the main acts of A and B are executory in regard to the release.

Salk 22, Sexton v. Miles.

-Newland on

Cro. Car. 19, glish.

Farrer v. En

3. So if A owe B £10 on a bond, and B promises that in Cro. Car. 8, consideration A will pay at the day, to give up the bond, this Flight promise is valid.

Crosden.

1 Saunders

4. An executor of his own wrong, is not so bound to pay 210, Forth v. the debts of the deceased, as to make it any consideration for Stanton. his promise to pay them; as where A owed B £10, A died and his wife become his executrix de son tort, B assigned his debt to C, and empowered him to receive it to his own use; C declared that in consideration he accepted her as his debtor, she promised to pay the debt; adjudged ill, for C having no right in the debt, and the wife owing him nothing, there was no consideration; and though C had an equitable interest in the debt, yet the wife was under no obligation to pay; but if she had been under even a moral obligation only to pay C, then her promise to pay him, being actual, would have bound her.

3 Johns. R.

en.

5. Where the note given by bail may want consideration. Non 465, 767, est inventus returned on a case against the principal; the bail Tappan v. Van Wagen. gave a note for the amount of the judgment, afterwards reversed, and before the bail was fixed. Held the note wanted consideration, and was void, for the bail never became liable, and when the judgment was reversed, it was as if it never existed. Cases cited, 2 Johns. R. 101; 1 Wils. 16; 3 D. & E. 390; 2 Sellon 128; 2 Stra. 867; Cro. J. 645; Jenkins' R. 319, pl. 21; 2 Roll's R. 254. 3 Johns. R. 463, giving up a bond the consideration of a note.

ley.-1 Com.

ART. 22. Both parties must be bound, &c. § 1. The gene- 3 T. R. 653, ral rule is, that both parties must be bound, that the considera- Cook v. Oxtion which induces each to contract may be good; but there are D. 194, 523. exceptions to this rule. Cases, &c.

-10 Mod.25 -3 Wood's

Con. 526.-Sid. 440.-2 Stran. 973, 850, 937.-Holt v. Ward, 2 T. R. 763; Corbett r. Bennett, 1 Salk 112.-6 East 614.-1 Bl. Com. 113, Christian's notes.

Сн. 1.
Art. 23.

2. A proposed to sell a bale of goods for £40, and gave B, the proposed buyer, six hours to consider of it; B in the mean time accepted the offer; yet it was decided in Cook v. Oxley, that A was not bound; that there was no consideration, because B was not bound to take the goods. And 1 P. W. 304, Eyre v. Eyre.

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age cov

3. The distinction seems to be between contracts void and voidable; hence both parties are bound, where the contract is only voidable as to one of them; as if an infant be one contracting party, the other party of age is bound, for the minor's contract is not void but voidable only, and so may be a consideration of the other's contract to hold him; therefore it was adjudged that where an infant and another of full enant one against the other, the covenant of the person of age should bind him. The minor may confirm his contract when he comes of age, and he cannot annul it before; and an after promise may revive or confirm that which is voidable only, and the minor may do this when of age; but if void in its creation, no after promise can confirm or revive it; for a contract ab initio void cannot be confirmed. Upon this distinction it follows, if I promise to pay a married woman $100, in consideration of her promise to deliver me a bale of Saund. 137 goods, my promise is void, because her's being void ab initio, is no consideration for mine, and her void promise cannot be renewed, or be the consideration of another.

to 137 d.

3 T. R. 22,

lace.

ART. 23. A man's promise is a consideration, only when he is Nerot r. Wal- able to perform. 1. Every one who promises a benefit must have the power of conferring that benefit to the extent professed; or his promise fails, and is not the consideration intended for the promise of the other party.

1 Esp. 3

2. As if I promise to make a lease of black acre to B, and Briggs' case. in consideration of my promise to do this, he promises to enter and pay rent, and it turns out that I had no power to lease black acre, he is not bound to enter and pay the rent; because my ability to lease, understood when the contract was made, is, in such case, the cause or motive inducing his promise, and when this cause fails his promise rightly fails.

Farr. Rep. 13.
Tuke's case.

ART. 24. A loss or prejudice to one is a good consideration. 1. It is a sufficient consideration to make the contract of the promiser valid, if there be a trouble, loss, or prejudice to the promisee. The reason is plain, it is this, on the part of the promisee, and as to which to indemnify him the promise is made, though of no advantage to the promiser; as if it be no advantage to me to occupy A's store, but it is an inconvenience or prejudice to him, to let me do it, and for the occupation I promise to pay him a certain sum, I am bound to pay accordingly.

§2. So where A had a note against B, and C told A to de-. liver it to him, and he would pay A the amount, this promise of C binds him. This delivery to C was a disadvantage to A, a new consideration, and the motive and ground of a new and distinct promise made by C.

CH. 1.

Art. 25.

-6 East 30%,

5 Mass. R.

ART. 25. Considerations illegal in whole or in part, are 5 East 10. bad. 1. It has been a question, if I engage to pay the debt of Wain's case. another, whether or not the consideration of my promise must Egerton v. appear in the writing. In Wain's case it was held that the Matthews.consideration of the promise, as well as the promise, must be 358, Hunt, stated in the writing. So much being implied in the word agree- admr. v. Adment to pay, used in the statute of frauds. But in Egerton's ams. case, it was decided, that where A and B agreed to give him 19d. per lb. for 30 bales Smyrna cotton, &c. they were bound, though no consideration was expressed. And the court justified the distinction between the two cases, on the different wording of the two clauses, as to the debt of another and goods, in that statute. But in Hunt's case our court said these two decisions were not easily reconciled, and decided that when Jos. Chaplin, July 23, 1804, for value received, promised to pay Isaac Bennet $1,500, Dec. 1, 1804, with interest, and the deft. underwrote, "I acknowledge myself holden as surety for the payment of the demand of the above note," and signed, the deft. was liable. The court doubted as to Wain's case, but further held in Hunt's case, that the deft. was an original undertaker, as well as Chaplin ; and that their contracts were joint and several, Chaplin as principal, and the deft. as surety, and viewed both as signing at the same time, and that here the consideration that bound the surety, was the credit given to the principal.

len v. Rescous.

2. The plt. gave 20s. to the deft., in consideration of which Lev. 174, Alhe undertook to beat J. S. out of such a close, or pay 40s. and he did not do it; held, the plt. could not recover the 40s., Bul. N. P. 16. -Lofft 756. the consideration being an illegal act. So, if two box for a wager, the winner cannot recover, because boxing is illegal ; otherwise, of playing at cudgels or any legal amusement.

200, Fether

3. In part bad. As where the plt., a bailiff, had arrested Cro. El. 199, one for debt, and in consideration the plt. would let him go at ston v.Hutchlarge, and of 28. paid to the deft., he engaged to pay the whole inson. debt; this engagement was adjudged void; for the promise being to the same effect as an obligation, which would be void by statute 23 H. 6, the promise shall be so too, and though coupled with another consideration as the 2s., yet being void as to part, it is void as to the whole.

§4. So if the promise grow out of an illegal transaction, it is 2 Wils. 133, void; as where one illegally proposes to sell an office, and Stackpole v. promises two per cent. to one, who will get him a good price.

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