CH. 1. Art. 41. good consideration. And though compellable to do it, as where the plt. and deft. were sureties, and the deft. said to the plt., pay the debt and I will pay you a moiety, it was held the deft. was liable. So when the plt. owed the deft. a debt on bond, the deft., in consideration the plt. would pay it, promised to cancel the bond; it was decided the deft. was liable to an action, though the plt. only paid the debt when due, for non 3 Salk. 96. payment at the time might have been a trouble and a loss to the deft. though in such a case the plt. only does an act, he is liable by law to do, yet as he does it at the special request of the deft., the court may well presume he has sufficient reasons for making the request to have punctual payment, instead of being driven to adopt compulsive process, and to experience trouble and delay, and, therefore, to make such promise in order to effect such payment. ART. 39. 1. A consideration perfectly past or executed is bad, for in such a case there is no cause or motive remaining to induce the promise. As where two had bailed the deft's. servant, in consideration thereof he promised them to save them harmless; held this promise was void; but otherwise, had they bailed him at the deft's request. In the first case the promise was merely a naked one; but in the last, it would be coupled with the preceding request; and when done at this request, a moral obligation or duty arose to indemnify, which continued to be such, and when on this an express promise is made, it is binding on principles before stated. ART. 40. § 1. Idle considerations are as none, it affords no Godb. 358, reason or motive for promising. As if an arrest be void and Randall v. Harvey.illegal, and in consideration of discharging the arrested man, Hard. 73.the deft. promises to pay the debt, this consideration and proImise are void. 2. So where corn is not distrainable, and the lessee in consideration the lessor would not distrain it, promised he would pay his rent that was due: adjudged to be no consideration. Pow.on Con. 556, Goodwin v. Wil loughby. §3. So it is no consideration for the creditor to accept a Goodwin v. third person for a debt, unless he discharge the original debtor; Willoughby. as where A owed the plt. a debt, and the deft. promised to pay it if the plt. would accept him as paymaster, and wait six months. This was adjudged no consideration; for the plt. might still sue A, and so was at no prejudice. § 4. It was held that an estate at will is no consideration, nor can I do one a kindness without his consent and claim a recompense, nor can I lay one under an obligation by bettering his case, if not done at his request. 1 Bac. Abr. 170, 171. ART. 41. §1. A consideration continuing is good without 3 Salk. 96.-request, or wherever it remains executory; as where the deft. Stiles 305.- Сн. 1. Leo. 102, wards.-Cro. El. 94.-1 : says to the plt., as you married my daughter I promise to give you £100. This promise is valid for the consideration arising from the marriage continues a ground of promise. But must not the promiser's consent to the marriage be expressed, or implied? § 2. So if I owe A £20, I borrowed of him, and promise to pay him on a certain day; this is a good promise, for the debt or duty continuing, the consideration must continue. 3. So where A leases land to B for years, rendering rent, Pearl v. Ed- and after a part of the years are expired, and the rent paid, A in consideration B had occupied and paid, promises to save him harmless against all persons for his occupation past and to If B's cattle be distrained damage feasant, he may have an action against A on this promise; for B's occupation continues, which is the consideration; B also is to pay and Occupy in future. 174. 2 Keble 99. -1 Bac. Abr. 174, Atkins v. Barwell. 12 Mass. R. 190-192, v. Dana. come. 4. So in consideration I have paid a debt for A and taken a release for him, he promises to repay me, this is a good promise; for the benefit continues to him, and this is a continuing consideration. On the same principle is the case of Atkins v. Barwell before cited; for when I have paid his debt for him, he is under a moral obligation, and is bound in conscience and equity to repay me, and this is a good ground for an actual promise. 5. Several persons agreed to lend to the editors of a newsHomes, adm. per, the Patriot, the sums set against their names respectively, to be paid to one of them as agent. He advanced monies to the editors on the ground of the subscription. Held he had a right of action against a subscriber, who refused to pay the sum he subscribed. Salk 28, ART. 42. Acts of officers considerations or not. § 1. It is a well settled rule, that whenever an officer is bound by law to do his duty, his doing it can be no ground of a promise; but if he do a legal act he is not bound to do, it may be the consideration of a promise; and it may be very proper for me to reward the doing of a legal act, I cannot have done but by contract or agreement. 2. As where an officer seizes in execution the goods of a stranger, and I promise the officer that in consideration he will restore them, I will pay the debt; this is a valid promise, for by the scire facias he may sell the goods, and this, in effect, is doing no more; nor is the officer in such a case bound to restore the goods, hence his restoring them is a proper subject for a contract. 3. But any promise which induces an officer to act contrary to his duty is void, or which has that tendency. 4. It has been adjudged, that a promise to save the under sheriff harmless, if he make such a one his special bailiff, is valid; this is a lawful act, and he is not bound by law to appoint this particular person. 1 Roll. 16; 3 Leo. 227. CH. 1. Art. 44. 202.-1 Rolle 5. It cannot appear to be fully settled, that a promise to in- 1 Com. D. demnify an under sheriff, if he make execution on such goods, 26-Cro. is lawful or not. In several books it is said he ought to take Jam. 652, notice of the goods of the party at his peril; but in other Arundel v. books it is said such promise is reasonable. This last opinion is to be preferred, and the most consistent with modern practice. Gardner. 6. And it has been held in the Sup. J. Court of Massachu- See Post. setts, that if the goods be not in the deft's. possession, or if the owner's right be disputed, the officer may require indemnity of the plt. before seisure. 7. The court may refuse to allow a deft. to go into a con- Mass. S. J. sideration, because he has another remedy; as where A bought Court, Portland of B, and took a general warranty, and gave his note for 1797, Little the purchase money, and when sued upon it, offered to prove v. Roberts B (the plt. Little) had no title to the land, and so there was so the note is valid, if the no consideration for the note; but the court refused to let the promisor promisor go into this evidence; because he had a general war- know the deranty, which was his proper remedy, if his title failed; and it fect of title, might be further objected that it was improper to try the title partial.-2 in this action on the note, and the general issue pleaded, be- Wheaton's cause afterwards it would never appear upon the record the title had been tried. Same if the land be under mortgage. 15 Mass. R. 171. or it is but R. 13, 18.- 334. ART. 43. A compromise of a doubtful right is a good ground 2 Com. D. of a promise. This is a clear case, and every day's practice; and this consideration involves moral obligation as well as in terest. ART. 44. If there be no reward, no neglect, and no skill 1 implied, there is no consideration. The deft., a general merchant, undertook, without reward, to enter the plt's. goods with the deft's. own of the same sort, at the custom house for exportation; but made an entry under a wrong denomination; by which means both parcels were seized. Judgment for the deft.; for he having taking the same care of the plt's. goods as of his own, and not having received any reward, and not being of a profession or employment, which necessarily implied skill in what he undertook, he was not liable to an action for the plt's. loss. Had the deft. made the entry of the plt's. goods without any request from him, expressed or implied, so to do, the case might have been different. It seems on a view of this whole case, the deft. was requested to enter the plt's. goods, and that it was under good the deft. was to have no reward. H. Bl. 158, Shiells v. See ch. 17. Сн 1. Art. 45. Mass. S. J. Nov. 1800, Somes v. ART. 45. A personal contract once discharged, never can again be the consideration of a promise. 1. In this case one Gilman gave his negotiable note to Pierce for about $800, and he endorsed it to the Gloucester Bank; Court, Essex Gilman died, and, as was supposed, insolvent, and his widow administered on his estate. She made her note to Pierce for Pierce. See the same sum, who endorsed it, and it was sent to the bank, Boylston v. and 60 days' interest allowed on it; and the old or first note Green, ch. 20 a. 3. was given up to Mrs. Gilman, the administratrix. As her husband's estate was insolvent, it was apprehended she might suffer by giving the new note; and after a few days, by consent of the bank, her note was taken back by her and cancelled, and her husband's said note was returned to the bank, and this was noted in the books, and shown to Pierce, and he made no objection. This action was on the old note. And the court held that Pierce was not liable; for when Mr. Gilman's old note was once given up by the bank, and the note of another accepted in payment of it, it was discharged; and the return of it to the bank would not give new force. And it was not clear that an action lay on Pierce's new assent to the return of the note; because such assent, if any, was not in writing, and it was the debt of another; and a contract once discharged could not be a consideration of a new promise, and a contract once discharged is always discharged. 2 T. R. 24. Heathcote v. § 2. A being insolvent, he and his creditors come to an agreeCrookshanks ment for him to pay, and them to receive 5s. 6d. in the pound, 2 Johns. R. to be paid in a reasonable time; no fund was provided to pay 208, 213. this 5s. 6d. in the pound. Held, this agreement is no bar to an action brought by a creditor to recover his whole demand; for the old contract is not discharged, and there was no consideration for the new one. This new agreement is, like accord without satisfaction, no bar; and accord without satisfaction is no bar, because a party cannot exchange one cause of action for another of the same nature. to 137 d. Barber v. Fox.-17 2 Saund. 1373. And a promise to renew a void contract is void for want of consideration; and in this case it is said, that on forbearance to executors, their bare promise in writing does not bind them, for want of consideration; and that this is as necessary since the statute of frauds as before; but they are bound, if the forbearance be at their request, or if they have assets. See Art. 26. Johns. R. 301. 12 Mass. R. 4. A owing B, to pay him consigned goods to C; on their 212, Tudor v. arrival B took C's promissory note payable in 30 days. In Whiting. the mean time C failed, having sold the goods. B joined with other creditors in a composition of their demands. Held, he had no remedy against A for the original debt. ART. 46. Nudum pactum. The mere promise to "pay the debt of another," "without any consideration at all, is nudum pactum ;" and a father's note to his son for love and affection is nudum pactum. 18 Johns. R. 145. СH. 1. Art. 4. See art. 8, 3, 32.-3 Burr. & al.-11 7 Mass. R. 1. Lord Mansfield said in this case, that a nudum pactum &c. ch. 49, did not exist in the usage and law of merchants. And want 1663, 1676, of consideration is no objection in commercial cases among Pillans & al. merchants; as where one accepts a bill of exchange for the . Hopkins honor of the drawer, &c. The old notion about the want of Johns. R. 50. consideration was for the sake of evidence only; "for when 13 do. 52.it was reduced into writing, as in covenants, specialties, bonds, &c. there was no objection to the want of consideration, and the statute of frauds proceeded upon the same principle;" so as to promissory notes, the note itsolf is evidence of consideration, but not conclusively so, but throws the onus probandi on the deft. to prove a want of consideration. 2 Phil. Evid. 11; 2 Johns. R. 23. den 308, 309. Pow. on Con. 332 to 341.-Imp. M. P. 162, 392-see this matter considered in &c. Doc. & E.350.-Note, §2. Wilmot J. in the same case of Pillans & al. v. Hopkins conscience, & al. said, that all the cases I can find of nudum pactum are Stud. Dia. 2, upon parole, not in written promises. Nudum pactum comes c. 24. from the civil law, "ex nudo pacto non oritur actio;" the no- See 7 D. & tion was adopted to induce deliberation. If the promise was all contracts by stipulation, it was good, without consideration, by the Civil improperly law; a fortiori if in writing. It may not however be always divided into parol and good when in writing; many cases are strange and absurd, specialties; especially Hayes v. Warren, Strange 983, when the judgment for many was reversed, because it did not appear by the declaration well as reason "to be either for the benefit, or at the request of the deft." 3. In several books it is stated, that if an agreement or contract be in writing, the consideration is not inquirable. statutes as make three kinds, unwritten, written not seal ten sealed. Bl. Com. 56, 4. On the whole, the general rule is, that a mere general ed, and writpromise without benefit to the promisor or loss to the promisee, Plow. 308, in writing or not, is a nudum pactum; but some acts are in 309.-1 Com. themselves proof of consideration, as contracting by bonds and D. 402-2 other sealed instruments; and generally writings, being evi- 57, Chrisdence of deliberation, are prima facie evidence of considera- tian's notes, tion, but not conclusive, except in law merchant cases, and 4 Johns. cases of negotiable contracts negotiated. For as between the original parties to such contracts, or as to those who take assignments of them when dishonored or suspicious, a want of consideration may be shewn; but not on a letter of credit or 2 Johns. R. acceptance of a bill, &c. R. 296, the People v. 5 Johns. R. 442.-Phil. Evid. 11. $5. A and B had open accounts, and an adjustment was 3 Mass. R. 1. made between A and B's agent duly authorized, and a balance to 13, Wilson found due is paid to the agent. B was dissatisfied with the ". Clements. mode of settlement; whereupon A wrote to B, "reperuse the accounts, and make out a statement according to your own wish |