CH. 1. § 5. But where the transaction itself is lawful, as selling tea Art. 27. at Dunkirk, no after illegal use of the subject of it, as the smuggling that tea into England by the buyer, and that known Cowper 341, to the seller at the time, will destroy the assumpsit, where the promise is made to the party. So if I merely sell goods, I know will be illegally used, I may recover. 5 Taunt. R. 181. See Lotteries. Holman v. in com § 6. And if a bond be given conditioned to pay money --2 Wils. 339, mon form, it may be shewn it was for an illegal consideration, 352, Turner as to stiffle evidence. See art. 35. If A, B, and C owe a void v. Vaughan. -Watson on stock-jobbing debt, and A pays it of his own head, he cannot partnership make them contribute; otherwise, if he pay it by their consent. 108.-5 Johns. Where the law of the state forbids lotteries, contracts to buy Com. D. 186. tickets in them are void. R. 327.-1 -Hob. 216, Pow.on Con. Cro. El. 19, ART. 26. Forbearance, when a consideration. § 1. To forbear or stay a suit in law or equity for a just debt, is a good consideration, though the action be not discharged; for this is a benefit to the deft. and a prejudice to the plt. The request to stay implies a just debt; but the forbearance must be for some reasonable time, for mere unspecified forbearance is void; as one may be only for an hour, and so merely frivolous'; and, also, the forbearance must be stated, that the court may see what sort of forbearance it is; for it is a mixture of law and Cro. El. 387, fact-must be to some person named, 4 East 455. Lutwich v. Bane's case, 768.-Cro. 312, Pullin Saund. 137 to Jam. 47, 397, 2. If an executor, in consideration of forbearance, promise to 683-3 Salk. pay the testator's debt, this promise is valid, and the law pre96.-2 H. Bl. sumes he has assets, and his promise makes it his own debt; v. Stokes.-2 but Coke said, that if it appeared he had no assets, the promise was void; and the time allowed the executor must be a reasonable time. A recovered judgment against B, and committed his execution to the sheriff, and A, at the request of C, caused the sheriff to stay the levy, and C thereupon promised to pay A the debt, costs, poundage, and other charges, judgPow. on Con. ment against C, though it was not expressly averred the sheriff 353,354. did desist from the execution, though this was implied. See art. 26 and 28. See art. 45. 9 Co. 93. Dyer 272.-1 Com. D. 186, 187.-Cro. El. 700, 126, 3 Salk. 96. Rol. 20.1 Vent. 154. 2 Wils. 341. 3. And in Band's case it was held, that if a stranger say to the creditor, forbear your debt to such a day and I will then pay it, he is held, though no benefit to him. ART. 27. A debt due only in conscience is a good consideration of a promise. § 1. As if a minor contract a debt, and when come of age, promises to pay it, in consideration of forbearance, his promise is good; and so if there be no forbearance. 1 Esp. 173. $2. So if the assignee of a bond with power to sue or release it, promise to forbear, it is a good consideration of the debtor's promise to pay him. So as to a debt barred by the statute of limitations. CH. 1. §3. So if A be bound for a minor and pay the debt, and he at full age, promises repayment, it is good; and if the deft. Art. 29. plead infancy, and the plt. reply, that after the deft. come of age he confirmed the several promises alleged, the plt. need 3 Leo. 164.only prove the deft's. promise, and he must prove his own in- 1 T. R. 648, fancy. Judgment for the plt. 2 H. Bl. 126, ch. 99, a. 3, cited 1 Phil. Evid. 161. Borthwick v. v. Eislord. $4. So a promise to pay a debt discharged by the insolvent 36, Scouton act is good; for it remains due in equity and conscience, and Dougl. 442, Scouton v. Eislord; but to pay when able is conditional, Best v. Baker, and to support the action the plt. must prove the deft. able, &c. 7 Johns. R. 36.-Cowp. 544. notes. See art. 26. ART. 28. When assets are a good consideration for an exCowp. 289, ecutor's promise. 1. If an executor have assets, and promise to Hawkes v. pay a legacy, an action lies against him in his own right; and Saunders.-2 the judgment is de bonis propriis; for his having assets to enable him to pay, there is a good consideration, a sufficient reason for his promise, and he is bound. 2. Upon the same principle, if lands be devised to A, he to pay a legacy to B, and A accepts the land, there is an implied promise to pay, and the consideration is good. ART. 29. If no cause of action exist there is no consideration. 1. As where a married woman gives her note there is no debt whatever, and a promise to pay, in consideration of forbearance, is totally void, though she gave it as a feme sole: for the note is not merely voidable, but absolutely void; otherwise if only voidable. But if after she shall become sole and she promises to pay the amount of the note, it may be a question, how far it is a debt in conscience and equity, and so how far she may be bound on that account. 2 Saund. 137. Strange 94, -Pow. on net.-1 P. W. 2. So where the plt. got a note for his whole debt of the T. R. 763, 766, Cockbankrupt, which was a fraud on the other creditors, and so shot v. Benvoid, an after promise to pay it, was held void. So to stay an unjust suit in chancery is no consideration; nor is the son 768.-1 Atk. liable for his father's debts, and consequently, if he promise E. 166-3 to pay them, even in consideration of forbearance, his promise Ves. jr. 456. is void. 105.-4 D. & -6 Ves. jr. 300.-4 East. § 3. An agreement to settle boundaries, though nothing of 372-Cro. value is given, implies a good consideration to both parties, El. 206, Toowho have an interest in avoiding contention. 2 Vern. 494.New. on Con. 305. ART. 30. Considerations past. § 1. On a general principle, considerations past and executed, are not the foundations of promises; because in regard to them there is no motive to action, but very few considerations once good, are strictly past, but continuing. ley v. Windham.-Pow. on Con. 355. 1 Ves. 444, Penn v. Lord Baltimore, cited Ves. jr. 385. Сн. 1. Cro. El. 42, Sidnam v. 2. The plt. at the deft's. request, became surety to A, who recovered against the plt.; the deft. afterwards promised the plt. to pay, if H did not pay him the monies the plt. had paid. H did not pay, nor did the deft. on request; held the plt. might recover against the deft. though his promise was not made at the time of the request. In this case there was a good consideration for the deft's. promise; because when the plt. did an act at the deft's. request, the consideration that arose din v. Thinn. from the plt's. act, continued. See Ch. 32, a. 4, s. 18. Worthington 409.-Cro. 3. So if I request one to serve me a year, and he does so, and after the year is expired, in consideration he has served me, I promise to pay him $100, an action lies, the con10 Johns. R. sideration is continued. A written promise to pay A written promise to pay founded on a past consideration may be good, if the past service be stated to have been done on request. 243, Hicks v. Burbans. Cro. El. 59, Peake v. Un- Coke v. Barrows.-Cro. El. 138, War cop v. Morse. 1 Roll. R. v. Vavason.Pow.on Con. 350.-1 T. 4. But if one agree to serve me a year for $100, and after the year I pay him that sum, and in consideration of his service, promise to pay him $10 more, this is no consideration. In the first there is an honest debt due at the time of the promise, but not in the last case, for he is paid according to agreement or contract. 5. At the deft's. request there was a communication of marriage between the plt. and the deft's. daughter, and afterwards the plt. married her, and afterwards the deft. promised to pay him £100. The court, three judges, resolved the consideration was good, though it was agreed it was past, and had no reference to any act before, and it was admitted by the other two judges, that if the marriage had been at the deft's. request, and after the marriage he had promised, it had been good. 6. In consideration the plt. had bought of the deft. certain 413, Hodge lands, Dec. 10, afterwards, Dec. 19, he promised to make him a sufficient assurance therefor, before such a day. It was objected that the consideration was executed and past; but Raym. 260, judgment was for the plt., for the assurance was the substance of the sale and matter; and the reason of the promise continued. Church v. Church. Church v. ChurchHodge v. Vavason. 1 Com. D. 193, 194. 7. So a prior duty is a consideration; as if the deft. be indebted to the plt. in £10 such a day, and in consideration thereof, afterwards, such a day promises the plt. to pay him, the promise is good; this is not strictly a past consideration, but the continuance of the debt raises the promise; the duty remains, and by reason of the remaining duty the law raises the promise. ART. 31. Considerations grounded on relationship, when Cro. El. 63.- good or not. § 1. The plt. had administered physic to the deft's. Pow.on Con. son, and spent monies abroad at his funeral, the deft. pro Сн. 1. Art. 35. mised to pay. Held this promise was good; for the moral obligation the father was under to reimburse these advances on account of his son, was a sufficient consideration for an express promise. But it is a question if a cousin's promise in consideration of marriage is good; but a promise to a father in Pow. on Con. consideration of such a case, to pay a certain sum to his 353-3 Wils. daughter, has been adjudged good, and she recovered. Bl. 872. Money lent to the wife is a good consideration for the husband's promise, if at his request. 388.-2 W. lory. ART. 32. The discharge of a debt is a good consideration. Hob. 4 and 5, $1. To discharge a debt, even due from a stranger, is a good con- Lane v. Malsideration for the deft's. promise; for whether a benefit or not to him, it is a loss to the plt. ; for at the deft's. request the plt. gives up a debt or right, and it is just and reasonable the deft. fulfil his promise, given as a consideration for such relinquish ment. 1 Sid. 57,369. Lev. 94.Cro. El. 67. -1 Com. D. 189. ART. 33. 1. To prove a debt is a good consideration, for to prove is a charge and trouble to the plt. ; as where an executor or administrator promises to pay a debt, on proof to be adduced of the delivery of the goods to the deceased, or on shewing a bond by which the deceased was bound; for in all such cases the plt. is put to trouble and inconvenience to do something at the deft's. request implied, and confiding in his promise to per- Noy. 24 Max. form. There can be no good contract, without a quid pro quo. Dyer, 90. Co. L. 173. ART. 34. § 1. The bare relation between owner and tenant, is 5 T. R. 373, a consideration for his promise to cultivate the lands in a good walker. Powley v. and husbandlike manner. In this case the consideration stated was, that "the deft. became and was tenant to the plt.," and in consideration thereof, he promised not to carry away from the farm any of the straw, dung, compost, &c.; and in a second count, that for the same consideration he promised to cultivate the land in a good and husbandlike manner, according to the custom of the country, and this was, on a motion in arrest of judgment, held to be a good consideration. Mason v. 2. So the plt, stated that he agreed to suffer and permit the 3 Mod. 73, deft. to occupy and enjoy a house and three mills, for such a Beldham & time, he in consideration thereof promised the plt. to pay him Cro. El. 85. a reasonable rent, &c. This was adjudged to be a good consideration; the deft's. request to be allowed to occupy and receive the profits was clearly implied. ART. 35. Cohabitation where a consideration or not. 1. In 2 Wils. 339 v. Vaughan. debt on a bond conditioned to pay £30 a year to the plt., in 341, Turner consideration of cohabitation had with her by the deft., there was -2 Ves. 160. oyer and demurrer, and two objections made; 1, that the -3P.W.339. -3 Ves. jr. bond was given for an illegal consideration; 2, that the con- 368.-3 Maule sideration was past; but judgment was given for the plt. So & S. 463. Сн. 1. 1 W. Bl. 517, Walker v. Perkins. Esp. 193, the same cases in 2 P. W. 432.-3 good if after cohabitation to pay her, if they part and she live single and not cohabit. $2. Debt on a bond given to a woman seduced, for cohabitation with her by the obligor, and for maintenance after his death. On oyer these terms appeared to be in the bond, and it respected also future cohabitation. Judgment for the deft., for the consideration is illegal. It may be observed on these two cases, that in the first, the bond was for a past wrong, and Br. P. C. 445. so to make reparation, in the second in part for a past injury, -Ambl. 520. seduction, and in part to induce the woman to continue to live in fornication, as the bond was, that she should live with him, Hill v. Spen- &c., and so is the distinction in equity. The moral, as well as the legal principle is very different in the two cases; the bond for the past is valid, if given even to a common prostitute, if no fraud. Ambl. 641, cer. Hob. 10, R61. 20, 21. ART. 36. The wife's consent good or not. § 1. The deft. applied to the mother, a married woman, for her consent for him to marry her daughter, and in consideration she would consent, he promised to pay her £100. This was adjudged to be a good consideration, though the daughter was wholly in the husband's power, and the mother had none over her; for the mother has a natural influence, the employment of which to promote the marriage the deft. sought, was a reasonable cause for the deft's. promising to pay her the £100. 2. So in consideration a feme covert permitted her son to be a servant to the deft., he promised, &c., it was held the promise was good and binding. So in consideration a married woman would not hinder her husband to sell and convey lands to the deft., he would pay, &c., held binding; for though in such cases the wife, strictly, has no legal power, yet she has an actual influence, to have the advantage of which may well be a sufficient reason to induce the deft. to make a promise. ART. 37. The plt's. endeavours, &c. when a consideration. 1. The deft. having killed a man, requested the plt. to aid him; Brathwaite.-1 Esp. 87, and the declaration stated, that in consideration the plt., at the many cases, deft's request, would labour to procure a pardon for him, -3 Bos. & P. promised to pay him £100. The plt. alleged that he did Ch. 1, a. 13. labour by all the means he could, and for many days do his endeavours to obtain the pardon, &c. Judgment for the plt.; the request of the deft. to the plt. was to endeavour, and he performed, &c. Hob. 105, Lamplugh. 249, in a note. 2 Lev. 224. Rol. 20. Cro. Car. 8, §2. Marriage is always a continuing consideration, (see art. 41,) and it is a valuable consideration, and when had at the promiser's request there is in it every essential of a good consideration. ART. 38. To do voluntarily what one ought to do is a Flight v. Crasden.-Cro. El. 194, 429.-1 Vent. 258. |