CH. 1. Art. 22. recourse to wages; there is no intent or assent in, or agreement by the parties, expressed or implied, whereon to ground an action. But 3 Johns. R. 199, Jacobson v. Le Grange, seems contrary, and the plt. recovered wages by verdict. ART. 18. Considerations executory, &c. § 1. A consideration Salk 22, Sexis so, when the plaintiff promises to deliver a thing, and the ton v. Miles. defendant promises to pay, and is traversable, and must be laid Con. 82, 87. with a venue. -Newland on Farrer v. En glish. 2. If A agree to accept a certain sum of B, in discharge of Cro. Car. 19, all accounts between A and C, B's brother abroad, and give a release to C's use, as he should be required; and B promises A to procure for him a general acquittance from C, when he shall return, this is a good consideration; for B's paying the sum and A's accepting it, is sufficient, though the main acts of A and B are executory in regard to the release. § 3. So if A owe B £10 on a bond, and B promises that in Cro. Car. 8, consideration A will pay at the day, to give up the bond, this Flight v. promise is valid. Crosden. 1 Saunders §4. An executor of his own wrong, is not so bound to pay 210, Forth r the debts of the deceased, as to make it any consideration for Stanton. his promise to pay them; as where A owed B £10, A died and his wife become his executrix de son tort, B assigned his debt to C, and empowered him to receive it to his own use; C declared that in consideration he accepted her as his debtor, she promised to pay the debt; adjudged ill, for C having no right in the debt, and the wife owing him nothing, there was no consideration; and though C had an equitable interest in the debt, yet the wife was under no obligation to pay; but if she had been under even a moral obligation only to pay C, then her promise to pay him, being actual, would have bound her. 3 Johns. R. Van Wagen en. 5. Where the note given by bail may want consideration. Non 465, 767, est inventus returned on a case against the principal; the bail Tappan v. gave a note for the amount of the judgment, afterwards reversed, and before the bail was fixed. Held the note wanted consideration, and was void, for the bail never became liable, and when the judgment was reversed, it was as if it never existed. Cases cited, 2 Johns. R. 101; 1 Wils. 16; 3 D. & E. 390; 2 Sellon 128; 2 Stra. 867; Cro. J. 645; Jenkins' R. 319, pl. 21; 2 Roll's R. 254. 3 Johns. R. 463, giving up a bond the consideration of a note. ley.-1 Com. ART. 22. Both parties must be bound, &c. 1. The gene- 3 T. R. 653, ral rule is, that both parties must be bound, that the considera- Cook v. Oxtion which induces each to contract may be good; but there are D. 194, 523. exceptions to this rule. Cases, &c. -10 Mod.25 -3 Wood's Con. 526.-Sid. 440.-2 Stran. 973, 850, 937.-Holt v. Ward, 2 T. F. 763; Corbett v. Bennett, 1 Salk 112-6 East 614.-1 Bl. Com. 113, Christian's notes. Сн. 1. Art. 23. 2. A proposed to sell a bale of goods for £40, and gave B, the proposed buyer, six hours to consider of it; B in the mean time accepted the offer; yet it was decided in Cook v. Oxley, that A was not bound; that there was no consideration, because B was not bound to take the goods. And 1 P. W. 304, Eyre v. Eyre. 3. The distinction seems to be between contracts void and voidable; hence both parties are bound, where the contract is only voidable as to one of them; as if an infant be one contracting party, the other party of age is bound, for the minor's contract is not void but voidable only, and so may be a consideration of the other's contract to hold him; therefore it was adjudged that where "an infant and another of full age covenant one against the other, the covenant of the person of age should bind him. The minor may confirm his contract when he comes of age, and he cannot annul it before; and an after promise may revive or confirm that which is voidable only, and the minor may do this when of age; but if void in its creation, no after promise can confirm or revive it; for a contract ab initio void cannot be confirmed. Upon this distinction it follows, if I promise to pay a married woman $100, in consideration of her promise to deliver me a bale of Saund. 137 goods, my promise is void, because her's being void ab initio, is no consideration for mine, and her void promise cannot be renewed, or be the consideration of another. to 137 d. 3 T. R. 22, lace. v. ART. 23. A man's promise is a consideration, only when he is Nerot r. Wal- able to perform. 1. Every one who promises a benefit must have the power of conferring that benefit to the extent professed; or his promise fails, and is not the consideration intended for the promise of the other party. 1 Esp. 3 2. As if I promise to make a lease of black acre to B, and Briggs' case. in consideration of my promise to do this, he promises to enter and pay rent, and it turns out that I had no power to lease black acre, he is not bound to enter and pay the rent; because my ability to lease, understood when the contract was made, is, in such case, the cause or motive inducing his promise, and when this cause fails his promise rightly fails. Farr. Rep. 13. ART. 24. A loss or prejudice to one is a good consideration. §1. It is a sufficient consideration to make the contract of the promiser valid, if there be a trouble, loss, or prejudice to the promisee. The reason is plain, it is this, on the part of the promisee, and as to which to indemnify him the promise is made, though of no advantage to the promiser; as if it be no advantage to me to occupy A's store, but it is an inconvenience or prejudice to him, to let me do it, and for the occupation I promise to pay him a certain sum, I am bound to pay accordingly. § 2. So where A had a note against B, and C told A to deliver it to him, and he would pay A the amount, this promise of C binds him. This delivery to was a disadvantage to A, a new consideration, and the motive and ground of a new and distinct promise made by C. CH. 1. Art. 25. ---6 East 307, 5 Mass. R. ART. 25. Considerations illegal in whole or in part, are 5 East 10. bad. 1. It has been a question, if I engage to pay the debt of Wain's case. another, whether or not the consideration of my promise must Egerton v. appear in the writing. In Wain's case it was held that the Matthews.consideration of the promise, as well as the promise, must be 358, Hunt, stated in the writing. So much being implied in the word agree- admr. v. Adment to pay, used in the statute of frauds. But in Egerton's ams. case, it was decided, that where A and B agreed to give him 19d. per lb. for 30 bales Smyrna cotton, &c. they were bound, though no consideration was expressed. And the court justified the distinction between the two cases, on the different wording of the two clauses, as to the debt of another and goods, in that statute. But in Hunt's case our court said these two decisions were not easily reconciled, and decided that when Jos. Chaplin, July 23, 1804, for value received, promised to pay Isaac Bennet $1,500, Dec. 1, 1804, with interest, and the deft. underwrote, "I acknowledge myself holden as surety for the payment of the demand of the above note," " and signed, the deft. was liable. The court doubted as to Wain's case, but further held in Hunt's case, that the deft. was an original undertaker, as well as Chaplin ; and that their contracts were joint and several, Chaplin as principal, and the deft. as surety, and viewed both as signing at the same time, and that here the consideration that bound the surety, was the credit given to the principal. len v. Rescous. 2. The plt. gave 20s. to the deft., in consideration of which Lev. 174, Alhe undertook to beat J. S. out of such a close, or pay 40s. and he did not do it; held, the plt. could not recover the 40s., Bul. N. P. 16. -Lofft 756. the consideration being an illegal act. So, if two box for a wager, the winner cannot recover, because boxing is illegal; otherwise, of playing at cudgels or any legal amusement. 200, Fetherston v.Hutch 3. In part bad. As where the plt., a bailiff, had arrested Cro. El. 199, one for debt, and in consideration the plt. would let him go at large, and of 2s. paid to the deft., he engaged to pay the whole inson. debt; this engagement was adjudged void; for the promise being to the same effect as an obligation, which would be void by statute 23 H. 6, the promise shall be so too, and though coupled with another consideration as the 2s., yet being void as to part, it is void as to the whole. $4. So if the promise grow out of an illegal transaction, it is 2 Wils. 133, void; as where one illegally proposes to sell an office, and Stackpole t promises two per cent. to one, who will get him a good price. VOL. 16 Earle. Сн. 1. § 5. But where the transaction itself is lawful, as selling tea Art. 27. at Dunkirk, no after illegal use of the subject of it, as the in smuggling that tea into England by the buyer, and that known Cowper 341, to the seller at the time, will destroy the assumpsit, where the promise is made to the party. So if I merely sell goods, I know will be illegally used, I may recover. 5 Taunt. R. 181. See Lotteries. Holman v. Caine's 149. 352, Turner v. Vaughan. 6. And if a bond be given conditioned to pay money in com--2 Wils. 339, mon form, it may be shewn it was for an illegal consideration, as to stiffle evidence. See art. 35. If A, B, and C owe a void -Watson on stock-jobbing debt, and A pays it of his own head, he cannot partnership make them contribute; otherwise, if he pay it by their consent. 108.-5 Johns. Where the law of the state forbids lotteries, contracts to buy Com. D. 186. tickets in them are void. R. 327.-1 -Hob. 216, Pow.on Con. 346, 353-1 Esp. 94.Cro. El. 19, ART. 26. Forbearance, when a consideration. § 1. To forbear or stay a suit in law or equity for a just debt, is a good consideration, though the action be not discharged; for this is a benefit to the deft. and a prejudice to the plt. The request to stay implies a just debt; but the forbearance must be for some reasonable time, for mere unspecified forbearance is void; as one may be only for an hour, and so merely frivolous; and, 9 Co. 91. also, the forbearance must be stated, that the court may see Bane's case, what sort of forbearance it is; for it is a mixture of law and Cro. El. 387, fact-must be to some person named 4 East 455. Lutwich v. Jones' case, 768.-Cro. 337 d.-4 Jam. 47, 397, 2. If an executor, in consideration of forbearance, promise to 683.-3 Salk. pay the testator's debt, this promise is valid, and the law pre96.-2 H. Bl. sumes he has assets, and his promise makes it his own debt; 312, Pullin v. Stokes.-2 but Coke said, that if it appeared he had no assets, the promise Saund. 137 to was void; and the time allowed the executor must be a reasonable time. A recovered judgment against B, and committed his execution to the sheriff, and A, at the request of C, caused the sheriff to stay the levy, and C thereupon promised to pay A the debt, costs, poundage, and other charges, judgPow. on Con. ment against C, though it was not expressly averred the sheriff 353,354. did desist from the execution, though this was implied. See art. 26 and 28. Johns. R. 237, 240. See art. 45. 9 Co. 93. Dyer 272.-1 187.-Cro. 3. And in Band's case it was held, that if a stranger say to the creditor, forbear your debt to such a day and I will then pay it, he is held, though no benefit to him. ART. 27. A debt due only in conscience is a good consideraCom. D. 186, tion of a promise. § 1. As if a minor contract a debt, and when El. 700, 126, come of age, promises to pay it, in consideration of forbearMorning v. ance, his promise is good; and so if there be no forbearance. Knapp. 1 Esp. 173. 3 Salk. 96. Rol. 20.-1 Vent. 154. 2. So if the assignee of a bond with power to sue or release it, promise to forbear, it is a good consideration of the 2 Wils. 341. debtor's promise to pay him. So as to a debt barred by the statute of limitations. CH. 1. §3. So if A be bound for a minor and pay the debt, and he at full age, promises repayment, it is good; and if the deft. Art. 29. plead infancy, and the plt. reply, that after the deft. come of age he confirmed the several promises alleged, the plt. need 3 Leo. 164.— only prove the deft's. promise, and he must prove his own in- 1 T. R. 648, fancy. Judgment for the plt. 2 H. Bl. 126, ch. 99, a. 3, cited Carruthers.-1 Phil. Evid. 161. Borthwick v. 7 Johns. R. v. Eislord. §4. So a promise to pay a debt discharged by the insolvent 36, Scouton act is good; for it remains due in equity and conscience, and Dougl. 442, Scouton v. Eislord; but to pay when able is conditional, Best v. Baker, and to support the action the plt. must prove the deft. able, &c. 7 Johns. R. 36.-Cowp. 544. notes. See art. 26. ART. 28. When assets are a good consideration for an ex- Cowp. 289, ecutor's promise. § 1. If an executor have assets, and promise to Hawkes v. pay a legacy, an action lies against him in his own right; and Saunders.-2 the judgment is de bonis propriis; for his having assets to enable him to pay, there is a good consideration, a sufficient reason for his promise, and he is bound. 2. Upon the same principle, if lands be devised to A, he to pay a legacy to B, and A accepts the land, there is an implied promise to pay, and the consideration is good. ART. 29. If no cause of action exist there is no consideration. § 1. As where a married woman gives her note there is no debt whatever, and a promise to pay, in consideration of forbearance, is totally void, though she gave it as a feme sole: for the note is not merely voidable, but absolutely void; otherwise if only voidable. But if after she shall become sole and she promises to pay the amount of the note, it may be a question, how far it is a debt in conscience and equity, and so how far she may be bound on that account. Saund. 137. Strange 94, -Pow. on 2 T. R. 763, 2. So where the plt. got a note for his whole debt of the bankrupt, which was a fraud on the other creditors, and so void, an after promise to pay it, was held void. So to stay an net.-1 P. W. unjust suit in chancery is no consideration; nor is the son 768-1 Atk. liable for his father's debts, and consequently, if he promise E. 166.-3 to pay them, even in consideration of forbearance, his promise is void. 3. An agreement to settle boundaries, though nothing of value is given, implies a good consideration to both parties, who have an interest in avoiding contention. 2 Vern. 494. New. on Con. 305. ART. 30. Considerations past. § 1. On a general principle, considerations past and executed, are not the foundations of promises; because in regard to them there is no motive to action, but very few considerations once good, are strictly past, but continuing. 105.-4 D. & Ves. jr. 456. -6 Ves. jr. 300.-4 East. 372-Cro. El. 206, Tooley v. Windham.-Pow. on Con. 355. 1 Ves. 444, Penn v. Lord Baltimore, cited Ves. jr. 385. |