AMERICAN JURIST.

NO. XLIII.

OCTOBER, 1839.

ART. I.—LAW OF CONTRACTS.

No. 5. Of the Consideration.

AN oversight in our last number is readily acknowledged. It was there suggested that assumpsit had never been maintained in Westminster Hall for misperformance of a gratuitous undertaking, but that all the English decisions on this point were made in actions ex delicto. It is found, however, that in 1824, the exchequer chamber decided that as

1 Whitehead v. Greetham, M'Cleland & Younge, 205; 2 Bing. 464; 10 Moore, 183. See also Doorman v. Jenkins, 2 Adolph. & Ellis, 256, where a bailee of money was held liable, in assumpsit, for gross negligence in losing it. This seems to have been regarded as a case of misperformance. It was also stated in our last number, that perhaps Wheatly v. Low (Cro. Jac. 668, Palmer, 281) was the only case in which the action of assumpsit had been sustained for non-performance of the terms of a gratuitous bailment, as such. The court of exchequer, in 1836, felt "pressed by the authority of Wheatly v. Low" and thought “it advisable that the rolls should be searched for the purpose of ascertaining in what manner the consideration and the promise are there laid." As the case was compromised, no such search was made. 2 Meeson & Welsby, 143, Shillibeer v. Glyn. It is perhaps worthy of notice that C. J. Ley, according to Palmer's report of Wheatly v. Low, said that not guilty was the plea that should have been made in that case.

sumpsit was maintainable for such cause, and that the delivery of money to be safely invested was a sufficient consideration to charge the receiver as for a breach of contract in not investing it safely. The counsel for the defendant (the present lord chief justice of the common pleas) asserted, in his argument, that all the preceding decisions were made in actions on the case.

EXECUTED CONSIDERATION.

There is, perhaps, no point of law, which intelligent students more universally regard as arbitrary and unreasonable, as they find it announced in the books, than the matter of executed consideration. It is asserted, as if it were elementary doctrine, that if the consideration be wholly executed and past, and do not go along with the contract, it will not support a promise, unless the consideration were executed at the request of the promisor: Aliter, of a consideration executed in part only.' The reason of this rule is seldom set forth with the proper clearness. The suggestion in a note, in our last number, as to the positions laid down by certain writers in reference to pleading and the forms of action, as if they were the abstract doctrines of the law, is specially applicable to this point. And in the outset it may be well to say that the doctrine before us is merely a rule of pleading, and is susceptible of an exposition which will show that it is reasonable, and that it is also a necessary part of the system of enforcing and defending the rights of parties in the action of assumpsit.

2

In the case of Hunt v. Bate the declaration averred that the defendant promised to save the plaintiff harmless, in consideration that he had become bail for the defendant's

1 Dr. & Stud. 181; 1 Rol. Ab. 11; Bac. Ab. Assumpsit, D; 7 Cow. 360; 1 Taylor, 63; 1 McCord, 515; 1 Pow. Con. 348, et seq. ; 1 Lil. Ab. 299; 1 Dane's Ab. 119; Vern. 144; 1 Selw. N. P. 48, 1st ed.

2 Dyer, 272, a.

servant. Judgment was arrested. So where the declaration alleged that the defendant promised to pay the plaintiff five pounds, in consideration that the plaintiff had delivered to him twenty sheep.' So of a promise by a lessor to give a new lease, in consideration that the lessee had incurred expense in defending his title under the old lease. So of a promise to loan the plaintiff ten pounds upon request, in consideration that the plaintiff had formerly loaned the same sum to the defendant. So of a promise to repay sixty pounds, in consideration that the plaintiff had before paid that sum to the defendant's creditor in satisfaction of the debt. So of promises in consideration that the plaintiff had sold and delivered goods, lent money, &c. to the defendant, or had done work for him, or had sold and conveyed a farm to him." All these were cases within the first part of the rule above mentioned that is, cases where the consideration was wholly executed and past, and not at the request of the promisor.

If, however, the consideration be executed at the promisor's request, it is sufficient to support a promise. This was suggested as the remedy which would have cured the defect in the case of Hunt v. Bate, above cited from Dyer, 272, a; and in the next page of that book an anonymous case is reported, in which a promise to pay £20 “in consideration that the plaintiff, at the special instance of the defendant, had taken to wife the cousin of the defendant," was enforced at law, "although the marriage was executed and past before the undertaking and promise." These cases

⚫ Oliverson v. Wood, 3 Lev. 366; Hayes v. Warren, 2 Barnardiston B. R. 141; S. C. 2 Stra. 933; 7 Johns. 87, Comstock v. Smith; 6 Wend. 649, Parker v. Crane; 1 Wend. 492, Leland v. Douglass; S. P. Balcom v. Craggin, 5 Pick. 295; Stanhop's case, Clayt. 65.

were determined in 10 Eliz. Seventeen years afterwards (27 Eliz.) the question arose in the very case of becoming bail for a third person at the defendant's request, and was decided for the plaintiff.' "The request" said Periam, J. "is a great matter in the case." Afterwards, it was settled by numerous decisions, that in all other cases, where the consideration was executed and past at the time of the promise, if it were executed (that is, if the service, &c. were rendered) at the promisor's request, it was sufficient to support the promise and maintain the action.3

There seems not to be much of good sense or of equity, in the abstract doctrine that an executed consideration will not support a promise. Wilmot, J. says "many of the old cases are strange and absurd; so also are some of the modern ones, particularly that of Hayes v. Warren." He also says that the doctrine "has been melting down into common sense, of late times." The case of Hayes v. Warren is questioned also by Mr. Lawes. Rush, president of the court of common pleas in Pennsylvania, says, that according to "the liberal ideas that actuate modern courts," though the service has been rendered prior to the promise, yet if the party be under either a legal or moral obligation to pay, the promise will bind him. It will be found, however, upon an examination of the history of the doctrine in question, that there has been no relaxation of it;

1 Godb. 31, Sydenham & Worlington's case; S. C. Cro. Eliz. 42; 2 Leon. 224.

2 Godb. 32.

3 Style, 465, Hardres v. Prowd; 1 Brownl. 7, Lampleigh v. Braithwaie; S. C. Moore, 866; Hob. 105; Cro. Jac. 18, Bosden v. Thinn; S. C. Yelv. 40; Cro. Car. 408, Townsend v. Hunt. The case of Sandhill v. Jenny, cited in Dyer, 272, b. in marg. cannot be regarded as law: and the case in Ow. 144, and Cro. Eliz. 885, is either misreported or was wrongly decided. Probably the decision was as Moore reports it (Moore 643), and as it has been already cited from him.

4 3 Bur. 1671, 1672.

Lawes Pl. in Assump. 435.

2 Binn. 592, Greeves v. McAllister.

and that the case of Hayes v. Warren stands on precisely the same grounds as the other cases, and could not have been decided differently without violating long established principles. "Modern courts" would allow the plaintiff in such a case, to amend his declaration. Further than this, their "liberal ideas" would not extend."

It is one of the elementary principles of pleading, in the action of assumpsit, that the declaration must state a valid consideration for the promise which the plaintiff seeks to enforce.

In most of the cases that have been cited, the plaintiff failed by reason of his bad pleading. His real case was meritorious and legal, but the cause stated in his declaration was without consideration. In Hunt v. Bate, there was in fact no consideration which the law regards. The plaintiff's becoming bail was a transaction inter alios, neither beneficial to the defendant nor inconvenient to the plaintiff, at the instance of the defendant. According to a rule, noticed in our fourth number, there was, therefore, nothing to support the promise. Indeed, the court, that decided the case, say

This was an action for work and labor done by the plaintiff for the defendant, in consideration whereof the plaintiff promised to pay-there being no averment that the work was done at the plaintiff's request. The defendant was defaulted, and judgment was arrested, on his motion.

2 "It is scarcely possible to make any secondary rule of law, but it shall fail in some particular case; whence springeth this often-used assertion— non est regula quin fallat. And therefore the ordainers and interpreters of law respect rather those things which may often happen, and not every par ticular circumstance, for the which, though they would, they should not be able, by any positive law, to make provision."-" Wherefore, as all men endued with the right use of reason, and conversant in the knowledge of any law, must of necessity confess, every law doth stand upon permanent rules, as of iron not to be bent or broken upon this or that occasion, or to be infringed upon this or that occurrence; for else there need no court of law, but all should be one with the court of conscience, and have their proceedings framed according to the arbitrary conceit of the judge." Doddridge's English Lawyer, A. D. 1631.