Сн. 1. Cro. El. 42, 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. Sidnam v. 409.-Cro. See Ch. 32, a. 4, s. 18. 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 founded on a past consideration may be good, if the past service be stated to have been done on request. 243, Hicks v. Burhans. Cro. El. 59, 94, March v. ger 63, 64, 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 Ravenford marriage between the plt. and the deft's. daughter, and after3 Salk. 96,98, wards the plt. married her, and afterwards the deft. promised Peake v. Un- to pay him £100. The court, three judges, resolved the conCoke v. Bar- sideration was good, though it was agreed it was past, and rows.-Cro. had no reference to any act before, and it was admitted by the El. 138, War- other two judges, that if the marriage had been at the deft's. cop v. Morse. request, and after the marriage he had promised, it had been good. 1 Roll. R. Pow.on Con. 350.-1 T. 6. In consideration the plt. had bought of the deft. certain 413, Hodge lands, Dec. 10, afterwards, Dec. 19, he promised to make v. Vavason. 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. 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 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 Cro. El. 63. mised to pay. Held this promise was good; for the moral СH. 1. obligation the father was under to reimburse these advances Art. 35. 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. Lane v. Mal lory. ART. 32. The discharge of a debt is a good consideration. Hob. 4 and 6, $1. To discharge a debt, even due from a stranger, is a good consideration 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 Co. L. 178. quo. Dyer, 90. Powley v. Walker. 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 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 debt on a bond conditioned to pay £30 a year to the plt., 341, Turner in v. Vaughan. 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. good if after cohabitation to pay her, if they part and she live Art. 38. single and not cohabit. 1 W. BI. 517, Walker v. Perkins. 1 Esp. 193, the same cases in 2 P. W. 432.-3 §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, Rol. 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. Lamplugh v. § 1. The deft. having killed a man, requested the plt. to aid him; and the declaration stated, that in consideration the plt., at the deft's request, would labour to procure a pardon for him, promised to pay him £100. The plt. alleged that he did 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, Brathwaite.- 1 Esp. 87, many cases. 3 Bos. & P. 249, in a note. Ch. 1, a. 13. 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. 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 promise 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. Hard. 73.-1 Сн. 1. says to the plt., as you married my daughter I promise to give Art. 42. 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? Leo. 102, wards.-Cro. El. 94.-1 § 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 come. 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. 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 Love's case. 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, hencé 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. |