on a certain partnership account, and had not accounted for, in consideration of their engagement to forbear and desist from taking an examination before the commissioners concerning such sums, and that the commissioners would also forbear and desist from such examination, a judgment for the assignees was reversed, on the ground, in part, that they could not prevent the commissioners from proceeding in the examination.' So when a promise of forbearance by an assignee of a chose in action was held not to be a good consideration for a promise to pay the debt to him, unless he was empowered by letter of attorney to sue and release, it was on the ground that it was not legally in the assignee's power to forbear-the debt, and of course the power of collecting it, belonging to the assignor. If the consideration be, at the time of the contract, physically and clearly impossible, as to go to Rome in a day, &c. it will not support a promise. In such cases, as in those just mentioned of legal impossibility, there is no consider ation. When a party promises that a third person shall do an act, the promise will be on a valid consideration, if the thing to be done by such person be not physically or legally impossible. Legal impossibility, in this instance, includes unlawful acts, as well as those which are beyond the legal ability of the party who is to do them. The law intends that it is in the power of the promisor to cause the third person to do the act stipulated for; or that when he made the promise, he had the contingency in view, and assumed the risk, of being able or unable to effect the object. The 1 3 D. & E. 17, Nerot v. Wallace. The principal ground of decision in this case was that the agreement was unlawful. 2 See Puffendorf, book iii, ch. 7. § 1, 2, 3, 10; 1 Pow. Con. 160, et seq. 178, 179; 3 Chit. Com. Law, 100; Rutherforth, book i, chap. 12, § 7. Grebner Philos. Moral. part ii, sect. i, ch. 7, § 2. * 1 Saund. 216, Doughty v. Neal, and note, 2; 10 Johns. 27, Mounsey v. Drake; Chit. Con. 14; Sayer, 185, Hesketh v. Gray. case of Harvy v. Gibbons, above cited, would doubtless have been decided for the plaintiff, if the promise had been that the third person should discharge him from the £20 debt. Indeed, this would seem to have been the more rational construction of the promise actually made in that case. Most of the cases on this point have arisen on specialties; but the principles that have been stated seem equally applicable to simple contracts. CONSIDERATION VOID IN PART. If one of two considerations of a contract be merely void, and not illegal, the other will support the promise;1 as a promise in consideration of an assignment of a title to dower, and of forbearing to sue an attachment out of chancery upon a decree. Though a title to dower cannot be assigned, yet the forbearance will support the contract. But if one of two considerations be illegal, it vitiates the contract in toto; as if part of the consideration of a bill of exchange be spiritous liquors sold contrary to law, though the other part of the consideration be money lent.❜ UNLAWFUL CONSIDERATION. A consideration must be not only sufficient, but legal. Whenever the consideration or any part of it is unlawful, we have just seen that the whole contract is void. It is not necessary to illustrate this principle here, as it may more properly be done hereafter, in treating of unlawful contracts. 1 Yelv. 56, Pickard v. Cottels; Cro. Jac. 128, Crisp v. Gamel; Style, 58, 63, Bruer Sowthwell ; Style, 280, Shann v. Bilby; 1 Sid. 38, Best v. Jolly; 8 Mass. Rep. 51, by Sedgwick, J. Cro. Eliz. 149. 848. 759; Onslow's Nisi Prius, 145; 1 Lil. Ab. 297. 2 Cro. Eliz. 199, Featherston v. Hutchinson; T. Jon. 24, Morris v. Chapman; Cro. Jac. 103, Bridge v. Cage; 8 Johns. 253, Crawford v. Morrell. 3 3 Taunt. 226, Scott v. Gilmore. 4 See cases collected, Com. Dig. Assumpsit, F. 7; Chit. Con. 215, et seq. According to Mr. Chitty junior, whose description of a simple contract has so often been cited, the consideration. must be sufficient and legal, and the agreement must be "to perform some legal act, or omit to do any thing, the performance whereof is not enjoined by law:" That isthe consideration must be lawful, and the thing to be done or omitted must also be lawful, or the agreement is void. It is not only useless but difficult to illustrate these two points separately, by examples. To every agreement there are in fact two considerations. This is manifest in the cases of mutual promises executory-as in the case, for example, of Gibbons v. Prewd, Hardres, 102. The plaintiff promised to convey to the defendant all his interest in the estate of a person deceased, before a certain day, and the defendant promised to pay the plaintiff £25, before the same day. The consideration of the plaintiff's promise was the promise of the defendant, and vice versa. Had the promise of either been to do an unlawful act, the contract, that is, the promise of each would have been void. The same is equally true, though perhaps less obviously so, of all other agreements, whether executory or executed on one side only, or executed on both sides. Thus, where an officer, in consideration of a promise of indemnity, suffers a prisoner in execution to escape, the consideration is executed on his part, and executory on the part of the promisor. Here there is not only the promise of indemnity, as the consideration for the officer's act, but there is the officer's act, either done or agreed to be done, as the consideration for the promise of indemnity. And so of all other contracts; as might be shown by a glance at the pleadings of both parties, if both should sue. Either party to a contract may sue the other for a breach of it; and, in all cases, it is necessary to set forth, in the declaration, the consideration of the contract, as well the terms of it. When, for example, an action is brought on a contract for A's doing one thing in consid eration of B's doing another thing-if A sues, he states, in his declaration, the thing to be done by himself, as the consideration of the promise made to him by B. If B sues, he states the thing to be done by himself as the consideration of A's promise to him. A consideration on one side may be lawful, and unlawful on the other-that is, a promise to do a lawful act may be made on an unlawful consideration; or a promise to do an unlawful act may be made on a lawful consideration. As if A promise to reap B's field, in consideration that B will beat C, or cause him to be beaten-or if B promise to beat C, in consideration that A will reap B's field. In such case, as one or the other party may happen to sue, the consideration, or the promise, will be illegal. So both considerations, or the consideration on both sides, may be unlawful. As if A promise to beat C, in consideration that B will not give evidence against him, if called as a witness. These contracts are equally void, and none of them can be enforced.' Contracts are said to be illegal, either because the consideration of a promise is illegal, or because the promise is illegal. The distinction is without a difference. At least, there is no difference, in effect, between the two. Wherever the illegality lies, the contract cannot be supported in a court of law. And it will be found, it is believed, that the phrase "void for illegal consideration" is usually adopted only in those cases where the party, from whom an illegal consideration moved, sues for the breach of a promise which is not in itself illegal: As if an officer sues on a promise of indemnity-in itself an unexceptionable promise-the consideration of which was his permitting an escape-an unlawful act: If the other party sue the officer for not permitting the prisoner to go at large, according to agreement, the language would be that the contract was illegal; for the I See 1 Pow. Con. 176. consideration of the contract on the part of the party suing, and from whom it moved, was not illegal. This difference of language, that is, sometimes saying the promise is void for illegal consideration, and sometimes that the contract is void because it is illegal, tends to confuse the student, and may leave the impression that the party to a contract, who stipulates for nothing unlawful on his part, may enforce his claim against the other party, though the other party, on whom the illegality rests, cannot enforce the contract against him. The law is not so. The whole contract is void-to speak with the most technical precision— whenever the consideration on either side is unlawful; that is-whether that which is the ground of the promise on one part, or the thing which is promised to be done on the other part, is unlawful, all is void, and neither party can derive any assistance from a court of law or of equity to carry it into effect. It seems therefore that writers make a needless distinction, in saying that assumpsit will not lie "for an unlawful thing," nor "if the consideration be unlawful." We say this with great distrust of our own views; especially as this distinction was adopted by baron Comyns.' FAILURE OF CONSIDERATION. When the consideration of a contract fails, that is, when what was supposed to be a consideration turns out to be none, the contract may be avoided. If money has been paid, it may be recovered back, where the consideration fails or if a note, &c. has been made, failure of consideration is a sufficient defence to a suit brought to enforce payment or performance. When real estate is conveyed by deed, with warranty, and notes are given for the price, it is held by some courts 1 Com. Dig. Assumpsit, F. 4. 7. |