Сн. 1. Art. 12. Imp. M. P. Com. 445. gives me a power of attorney to sue it to my use, and C in consideration I will forbear to sue it, promises to pay it, his promise binds him. Though the law will not weigh the quantum of the consideration, or on account of its smallness as a consideration, view the contract as void, yet the smallness of the consideration may often be taken as evidence of fraud or deception, or of some clear mistake in the bargain, and so be the means of avoiding it on this ground. A penny will raise a use, so will a pepper corn reserved in a lease. ART. 10. The suspension of the plt's right any time is a 161.-2 Bl. ground of promise. §1. If, therefore, A owes me a debt, and I agree not to call on him for payment ever so little a time, at B's request; and he promises to pay it, and thereby I am induced so to suspend it, B is liable. 1 Bac. 170. 1 Esp. 88. Yates 3 Burr. . 1663. 2. And if the act be done at the request of him who makes the promise, it will be a sufficient foundation to engraft the promise upon, as the shewing a deed, &c.; but not if the request be made by the advice or influence of the other party; as if I persuade a sailor to resolve to have a protection, and he requests me to procure it for him, he shall not be held to pay me for my trouble in getting it, for I drew him in to make the request. ART. 11. Any damage to another, or suspension, or forbearance of his right, is a good consideration of a promise, though there be no actual benefit to the party undertaking; for if the promisee is to sustain a loss or damage, lose a right or have it delayed, it is as good a ground of a promise as an advantage to the promiser; for whenever the promisee sustains any disadvantage at the promiser's request, it is but reasonable, his promise made for the promisee's benefit should hold or be 2 Ld. Raym. binding; and it seems to be a general principle, if one for a 1164, Thorn- valuable consideration undertakes to do what is even impossible, and fails to perform, an action lies against him. But where one partner undertakes to get insurance on their vessel for himself and partner, and neglects, it is no consideration, &c Ch. 73 a. 2, s. 8, the case. borow v. Whitacre. Salk 26, Abr. 28.-5 T. see v. Gate- 1 Wils. 88, ART. 12. Want of consideration does not apply, when the undertaker enters on doing the thing. As when one entered upon the business of moving a hogshead of brandy, and did it so negligently, that it was burst and lost; it was held the action lay against him, and was grounded on the misfeasance, or deceit to the plt. But if there be no consideration, and the party do not enter upon the business he is not liable; not on contract, for there is no consideration to support it; and not for doing the business badly, not commenced. 2. It follows that if A, without any consideration, promises to build me a house by such a day, and he does not enter upMartendale v. Fisher.-1 Ld. Raym. 124.--10 Johns. R. 90, 91. on the business, I can have no action against him. But he may be liable for negligence, if he do enter upon it, and do it negligently or unskilfully, for whenever one begins a piece of business for another, the law implies an obligation to do it faithfully and well. Promise for promise is a good consideration without the plt's. performance; or mutual promises.Hob. 88. CH. 1. Art. 14. 161.-2 BI. Banwell. 3 Mass. R. ART. 13. A prior moral duty is a sufficient ground of an Imp. M. P. actual promise, as a promise to pay a just debt that is out- Com. 445.lawed; but the law will not raise an implied promise upon it.- 2 East 505, See 3 Bos. & P. 249, 252, many cases in a note on this point. Atkins v. 2. Therefore, where one parish supported the pauper of g another, without any agreement, it was held the latter was not 438, Salem v. liable on any implied promise; but would be liable on an actu- 2 Ld. Raym. al promise; the parish being under a moral obligation to sup- 757. port its poor; its promise, in fact, binds, but the law will not raise an implied promise in such a case. See 10 Johns. R. 249, 250, medicine to slave without the master's request. $3. In case of a feme covert; as she having a separate estate settled to her use, gave a bond to repay monies by her executors, advanced at her request, on security of the bond, to her son-in-law; and after her husband's death she wrote, promising her executors should settle the bond; held that assumpsit lay against her executors on her promise. 5 Taun. R 36, 48, Lee V. Muggeridge. And held because she was bound morally and conscientiously, to pay the debt, was her express assumpsit good, made on that ground alone. It is best, as was done in this case, to state facts shewing the moral obligation, &c. Andover. Petrie v.Han ny. See art. ART. 14. A deliberate contract in writing, is primâ facie, Salk 129, though not conclusive evidence of a consideration. A written Clerk v. Martin.-Imp. M. promise is, of itself, evidence of deliberation generally, and P. 392.3 generally, a deliberate promise is evidence of a consideration T. R. 421, or of reasonable wotives inducing the promise; but not conclusive, for a man may in some cases promise without a cause, 46 post. and then he is admitted to prove that there is no consideration, even in the case of a bill of exchange. Hence in Petrie v. Hanny, Lord Kenyon said, "If it appears to the court that a bill of exchange is given without consideration," it is void, "ex quo non oritur actio, or if for an illegal consideration, the whole matter may be examined," but the consideration in a voluntary bond cannot be gone into. and so in 2. The Sup. Jud. Court of Massachusetts, June Term Pierce v. Mc 1785, carried the principle so far as to hold, that in an action Intire, Essex, even by the endorsee of a note against the maker, want of con- Lewis v. sideration might be given in evidence; for want of considera- Frund, Estion, said the court, made the note void ab initio, and endor- sex, 1790. See Chipson v. Obrien. Сн. 1. sing it over could not make it good; and that the endorsee Art. 15. might look to the endorser. But the authority of the last case may be now questioned, and it will appear on examining the modern cases, that this want of consideration cannot be shewn in such an action, unless the endorsee takes the note after it is dishonored, or when he has reason to suspect it. Nor can the maker impeach his note after endorsed, for by endorsing it he gives it currency. Imp. M. P. Kyd on Bills 13, 155, 158. -Bull. N. P. 274. ART. 15. As to impeaching a promissory note on account of a consideration. § 1. By the statute of the 3d and 4th of Anne, adopted in Massachusetts and most of the United States, a money note payable to one or order, or bearer, in writing, is negotiable. "The want of consideration it is evident, will be a sufficient defence to an action by one party against another, from whom he has immediately received the instrument; for Pow. on Con. according to the general principles of law, no contract can be 340-Every be supported without a consideration; and accordingly it fre note within the statute imports a consideration, unless the contrary appears in the note it self. Johns. quently occurs that the deft. rests his case on the circumstance of the bill or note having been merely for accommodation." "But where the plaintiff has, in fact, given a consideration to the person from whom he immediately received the instrument, any preceding party being sued on it, cannot protect himself by saying that he himself had no value of the party to whom he gave it; for by making himself a party to the instrument, he contributed to its currency." "And in this resRhodes.-See pect there is no difference, whether the person who actually 2 Phil. Evid. gave a good consideration, knew that the instrument was given without one or not." And generally the illegality of the consideration cannot be shewn to impeach a note, or bill, in the hands of a subsequent holder. R. 217.- 15, 16. 7 Mass. R. 14. 674, Jeffe- All these cases are cited 1 Esp. 33. Imp. M. P. 406, 407. 2. But, as will be stated in another chapter, one, who puts his name to a negotiable security, may impeach it in regard to any matter arising after he so sanctions its currency. 3. As between the drawer and payee of the note, the defendant may go into the consideration, and shew it is illegal, as given on a smuggling consideration, or delivered as an escrow; but the endorser was not allowed to prove he indorsed the note to the plaintiff, an endorsee, to enable him to sue the maker only. Bull. ch. 274, Snelling v. Briggs, but in Guichard v. Roberts, the court allowed a note absolute on the face of it, to be proved to be a conditional one; (but quere) so to shew no consideration as between maker and promisee. 2 D. & E. 71; 3 do. 421; 7 Johns. R. 383; 13 do. 52, 54; 15 do. 230. 4. By certain statutes a note is void even in the hands of an innocent endorsee; as by the 9th of Anne against gaming; and Bowyer v. Bampton.-Dougl. 247, 636, 735, 744, Lowe v. Waller.-Kyd on Bills 154, 155. 2 Stra. 1155. Mass. act of Mar. 4, 1786 against it; so by the English statute and Mass. act of March 16, 1784, against usury; and though the note be given for a valuable consideration, and the endorsee have notice of the gaming or usury; for the statutes declare the contracts void and of no effect.. CH. 1. Art. 16. 5. A smuggling consideration avoids the note between the 1 W. Bl. original parties. 445. 344, Jacob v. 6. The rule that "an assignee must take the thing assigned, Doug. 632, subject to all the equity to which the original party was sub- 636.-Salk. ject," does not apply to negotiable paper; for if this rule Hussy-Bul. should be "applied to bills and promissory notes, it would N. P. 274. stop their currency." They cannot be impeached in a suit by or against a third person, as an endorser or acceptor.} 7. The established rule now seems to be, that where the note is over-due, and so there is room to suspect it when endorsed, it may be impeached in the hands of the endorsee; and the principle may apply in any other case, where he has Kyd on Bills reasonable cause of suspicion; as if the note or bill is, on the 160.-3 T. R. face of it, dishonored. 80, Brown v. Davies, 8. The payee of a note, after it became due, and noted for Banks . Colnon-payment, endorsed it; in an action on it by the endorsee the well.-7 T. court allowed the maker to prove he paid it to the payee be- R. 423, Borfore it was endorsed; because not being paid when due, a sus- ling picion naturally arose against it. The note of Banks was payable on demand, and was endorsed 18 months after it was made. ken v. Ster 9. But the above rule does not apply to bankers in England, who issue their checks; as where one issued one 9 months after it bore date.. Held he could not object, though the consideration failed, as between him and the deliveree, in a suit by an after holder for a valuable consideration, and without 2 Bos. & P. notice. The discharge of one from prison, legally committed, is a good consideration of his note, and it is valid. 151. ART. 16. There are two kinds of considerations, which are 2 Bl. Com. good, such as blood and natural love and affection. 2d, Val- 297. uable, as money, marriage, &c. Deeds and contracts made only on good considerations, are often deemed merely voluntary; and are set aside in favor of creditors and bona fide purchasers. 332.--New. on Con. 65. 2. All agree that want of consideration does not affect a Pow.on Con. contract under seal at law, but equity will inquire into it and not aid it, if the consideration be not valuable or meritorious. 3. And a contract for a good consideration only, is valid as against heirs, executors, or administrators. 4. The plt. paid a sum of money to the master of a work house to the use of the poor in it, to avoid a prosecution for an offence charged against him, and paid by the consent of 9 East 49, Taylor v. Lindsey. Сн. 1. Art. 17. New. on the magistrate. Held he might recover it back any time before applied, there being no consideration to establish a contractmaster was the plt's agent. $5. Considerations in equity. This must be such as will inCon. 65,80.-duce the court to decree a specific performance of an agreeCases in equi- ment; a parent's agreement with a child in consideration of ty, 257. 7 Ves. 30, 34, love and affection is good. But if the price in any case apWhite v. Da- pear to be inadequate, equity will not, but in special cases, enforce the agreement; as where the estate is sold for half its value, though at auction; but Lord Eldon thought otherwisewho held a sale at public auction, and no fraud, could not be set aside for mere inadequacy of price, yet may not be enforced. mon.-10 Ves. 470. 3 Atk 185, Goring v. Nash.-Pr. 6. For inadequacy of price, equity will not rescind a contract, though it will enforce it or not, according to circumstanCh. 475, Far- ces; and in some cases it decrees specific performance of a saher v. Rob- contract not founded on a valuable consideration, but only on a parent's natural love and affection for a child. A provision for an illegitimate child is no consideration; he is filius nullius in equity as well as in law. See ch. 32 a 4, 11; New. on Con. 357 to 361. inson. 1 Ver. 427. Billengham v § 7. On the same principle, equity views a provision for a 1 Ch.Ca. 243, child a good consideration, it does a provision for a wife, even though made after marriage, and by a voluntary bond to settle jointure on her, and settling lands accordingly; but secus as to a collateral relation, but in very special cases. A remainder to a brother in tail, even in marriage articles, is not a consideration in equity; but still there may be some other consideration in the articles or contract to entitle him; and see ch. 225, a 2, s. 7; Trevor v. Trevor, 1 P. W. 631; Randall v. Willis, 5 Vesey, jun. 273, 276. -1 Atk. 1. Ch. 1 a. 29, s. -2 P. W. 1P. W. 727.8. So a compromise of a doubtful right is a sufficient consideration in equity of an agreement; and so one made to save 3.-3 Ves. 412. the honor of a father and his family; so to settle boundaries; 1 Vesey 144 and 450, Penn v Lord Baltimore; so the peace of families is a consideration; so an agreement to make mutual wills; to share what a person shall give by will; but in an agreement merely voluntary there is no consideration to rest 181. upon. ART. 17. A mere voluntary courtesy is not a consideration to support a promise, unless moved by the defendant's request, and unless the act done pursue the request; for that is a kind of commission for the purpose. Hob. 106, Lampliegh v. BrathWaite, ch. 1. a. 37. 2. And what has been undertaken without a prospect of a certain recompence is such a courtesy; as where one works for A, with a view to a legacy, and is disappointed, he cannot have |