CH. 1. Art. 44. 4. It has been adjudged, that a promise to save the under sheriff harmless, if he make such a one his special bailiff, is valid; this is a lawful act, and he is not bound by law to 1 Roll. 16; 3 Leo. 227. appoint this particular person. $5. It cannot appear to be fully settled, that a promise to in- 1 Com. D. demnify an under sheriff, if he make execution on such goods, 26-Cro. is lawful or not. In several books it is said he ought to take Jam. 652, notice of the goods of the party at his peril; but in other Arundel v. books it is said such promise is reasonable. This last opinion is to be preferred, and the most consistent with modern practice. 202.-1 Rolle Gardner. 6. And it has been held in the Sup. J. Court of Massachu- See Post. setts, that if the goods be not in the deft's. possession, or if the owner's right be disputed, the officer may require indemnity of the plt. before seisure. 7. The court may refuse to allow a deft. to go into a con- Mass. S. J. sideration, because he has another remedy; as where A bought Court, Port1797, Little land of B, and took a general warranty, and gave his note for land, July the purchase money, and when sued upon it, offered to prove v. Roberts— B (the plt. Little) had no title to the land, and so there was so the note is promisor no consideration for the note; but the court refused to let the valid, if the promisor go into this evidence; because he had a general war- know the deranty, which was his proper remedy, if his title failed; and it fect of title, might be further objected that it was improper to try the title partial.-2 in this action on the note, and the general issue pleaded, be- Wheaton's cause afterwards it would never appear upon the record the title had been tried. Same if the land be under mortgage. 15 Mass. R. 171. or it is but R. 13, 18.- 334. ART. 43. A compromise of a doubtful right is a good ground 2 Com. D. of a promise. This is a clear case, and every day's practice; and this consideration involves moral obligation as well as in terest. ART. 44. If there be no reward, no neglect, and no skill made the entry of the plt's. goods without any request from VOL. I. 17 1 Shiells v. H. Bl. 158, See ch. 17. CH 1. ART. 45. A personal contract once discharged, never can Art. 45. again be the consideration of a promise. Mass. S. J. Nov. 1800, Somes v. 1. In this case one Gilman gave his negotiable note to Pierce for about $800, and he endorsed it to the Gloucester Bank ; Court, Essex Gilman died, and, as was supposed, insolvent, and his widow administered on his estate. She made her note to Pierce for Pierce.See the same sum, who endorsed it, and it was sent to the bank, Boylston v. and 60 days' interest allowed on it; and the old or first note Green, ch. 20 a. 3. was given up to Mrs. Gilman, the administratrix. As her husband's estate was insolvent, it was apprehended she might suffer by giving the new note; and after a few days, by consent of the bank, her note was taken back by her and cancelled, and her husband's said note was returned to the bank, and this was noted in the books, and shown to Pierce, and he made no objection. This action was on the old note. And the court held that Pierce was not liable; for when Mr. Gilman's old note was once given up by the bank, and the note of another accepted in payment of it, it was discharged; and the return of it to the bank would not give new force. And it was not clear that an action lay on Pierce's new assent to the return of the note; because such assent, if any, was not in writing, and it was the debt of another; and a contract once discharged could not be a consideration of a new promise, and a contract once discharged is always discharged. 2 T. R. 24. Heathcote v. 2. A being insolvent, he and his creditors corne to an agreeCrookshanks ment for him to pay, and them to receive 5s. 6d. in the pound, 2 Johns. R. to be paid in a reasonable time; no fund was provided to pay 208, 213. this 5s. 6d. in the pound. Held, this agreement is no bar to an action brought by a creditor to recover his whole demand; for the old contract is not discharged, and there was no consideration for the new one. This new agreement is, like accord without satisfaction, no bar; and accord without satisfaction is no bar, because a party cannot exchange one cause of action for another of the same nature. to 137 d. Barber v. Fox.17 2 Saund. 137 Q3. And a promise to renew a void contract is void for want of consideration; and in this case it is said, that on forbearance to executors, their bare promise in writing does not bind them, for want of consideration; and that this is as necessary since the statute of frauds as before; but they are bound, if the forbearance be at their request, or if they have assets. See Art. 26. Johns. R. 301. 12 Mass. R. §4. A owing B, to pay him consigned goods to C; on their 212, Tudor v. arrival B took C's promissory note payable in 30 days. In Whiting. the mean time C failed, having sold the goods. B joined with other creditors in a composition of their demands. Held, he had no remedy against A for the original debt. 66 pay ART. 46. Nudum pactum. The mere promise to the debt of another," "without any consideration at all, is nudum pactum ;" and a father's note to his son for love and affection is nudum pactum. 18 Johns. R. 145. СH. 1. Art. 4. See art. 8, 3, 32.-3 Burr. & al.-11 1. Lord Mansfield said in this case, that a nudum pactum &c. ch. 49, did not exist in the usage and law of merchants. And want 1663, 1676, of consideration is no objection in commercial cases among Pillans & al. merchants; as where one accepts a bill of exchange for the " Hopkins honor of the drawer, &c. The old notion about the want of Johns. R. 50. consideration was for the sake of evidence only; "for when 13 do. 52.it was reduced into writing, as in covenants, specialties, bonds, &c. there was no objection to the want of consideration, and den 308, 309. the statute of frauds proceeded upon the same principle;" so as to promissory notes, the note itsolf is evidence of consideration, but not conclusively so, but throws the onus probandi M. P. 162, on the deft. to prove a want of consideration. 2 Phil. Evid. 392-see this 11; 2 Johns. R. 23. no 7 Mass. R. 14.-Plow -Pow. on Con. 332 to 341.-Imp. matter considered in &c. Doc. & E.350.-Note, §2. Wilmot J. in the same case of Pillans & al. v. Hopkins conscience, & al. said, that all the cases I can find of nudum pactum are Stud. Dia. 2, upon parole, not in written promises. Nudum pactum comes c. 24. from the civil law, "ex nudo pacto non oritur actio ;" the See 7 D. & tion was adopted to induce deliberation. If the promise was all contracts by stipulation, it was good, without consideration, by the Civil improperly law; a fortiori if in writing. It may not however be always good when in writing; many cases are strange and absurd, specialties; especially Hayes v. Warren, Strange 983, when the judgment for many was reversed, because it did not appear by the declaration well as reason "to be either for the benefit, or at the request of the deft." 3. In several books it is stated, that if an agreement or con tract be in writing, the consideration is not inquirable. divided into parol and statutes as make three kinds, unwritten, written not seal ed, and written sealed. Bl. Com. 56, 4. On the whole, the general rule is, that a mere general promise without benefit to the promisor or loss to the promisee, Plow. 308, in writing or not, is a nudum pactum; but some acts are in 309.-1 Com. themselves proof of consideration, as contracting by bonds and D. 402-2 other sealed instruments; and generally writings, being evi- 57, Chrisdence of deliberation, are prima facie evidence of considera- tian's notes, tion, but not conclusive, except in law merchant cases, and Johns. cases of negotiable contracts negotiated. For as between the original parties to such contracts, or as to those who take Howell. assignments of them when dishonored or suspicious, a want of 272. consideration may be shewn; but not on a letter of credit or 2 Johns. R. acceptance of a bill, &c. R. 296, the People v. 5 442.-Phil. Evid. 11. 5. A and B had open accounts, and an adjustment was 3 Mass. R. 1. made between A and B's agent duly authorized, and a balance to 13, Wilson found due is paid to the agent. B was dissatisfied with the v. Clements. mode of settlement; whereupon A wrote to B, "reperuse the accounts, and make out a statement according to your own wish CH. 1. es, and draw on me for the balance, which shall be punctually Art. 47. honoured." Two years after, B, being pressed by a creditor, drew in favor of him a bill on A; and it was held that A was not bound to accept or pay this bill; for his promise was nudum pactum, for want of consideration; it not appearing any thing was due to B, at least at common law. Chitty on 630. 6. In this case Dexter for the plt. admitted, that A's letter or promise was not the more binding for being in writing, but contended, and correctly, that there are some writings which of themselves prove a consideration; as my letter of credit, or as my acceptance of a bill of exchange, &c. 7. Where the legislature has declared a contract, as a note or 72-7 T. R. bill, void for its illegality, the illegality of the consideration, as usury &c., the deft. may shew the illegality, though the plt. or some one between him and the deft. took it bona fide, and for a valuable consideration; and the innocent holder can only look to him of whom he received the bill or note; but unless it has been expressly so declared by the legislature, illegality of consideration will be no defence in a suit by a bona fide holder, without notice of illegality, unless he obtained the bill after it became due. 8 T. R. 390, Haley.-4 T. 10 Mass. R. 415, Sanger Cleveland. 8. If a contract be void for usury, &c., and a second be taken for the same debt, it is equally void in the hands of a party to the first; but not if in the hands of a bona fide holder. And see Usury. By suffering judgment by default, the deft. loses the opportunity to object to the want or illegality of the consideration, or to the insufficiency of the consideration. If an executor have no assets, and promise to pay the testator's debt, it is nudum pactum. 5 D. & E. 8. ART. 47. Where C's note for land to a third person is vaand wife, v. lid, though C's title fails. A and B, tenants in common of land as coheirs; A releases her right to B on absolute security, a bond; B conveys all to C with warranty; C gives his note to A towards satisfying the bond to her; C is obliged to pay a sum of money to remove an incumbrance from the land, and B, his warrantor, is insolvent. A sues the note thus given for the land, and C insists there ought to be a deduction from it on account of this incumbrance, the consideration of the note so far failing; but judgment for A for the whole note, for she is a third person, not the grantor of the land, and she had a clear title to claim to the amount of the note on her brother's bond, and the note given to her to satisfy that claim was given for a valuable consideration as to her, as it was given to pay her what she was justly entitled to. 3 Johns. R. Powell v. ART. 48.-Consideration bad. In assumpsit the plt. stated that he, U, and W, were joint owners of a vessel and her cargo, then on a distant voyage, and were jointly interested in her earnings and the profits of the voyage; that W was also master, and died on the voyage; and after his death the deft., in consideration the plt. had promised him that he, the deft. should receive from the plt. W's effects in the vessel and her earnings, as W was entitled to receive them according to the agreement among the owners, and in consideration the plt. agreed with the deft. to account to him for the said vessel, and earnings, profits, &c. in like manner as he was bound to account to W; he, the deft. promised to pay the plt. any demands or sums of money due and owing from W to the plt. at the time of W's death; and also any demands the plt. had against W's share in the vessel; and the plt. stated in his declaration, a certain debt due from W to the plt., and averred he was always ready to perform his part of the agreement, &c. On demurrer, this declaration was held bad, as it did not state a sufficient consideration of the deft's. promise; not stated he was to receive any thing in fact. CH. 1. ART. 49. The deft. agreed in writing to give the plt. the 4 Johns. R. 235, Barnet refusal of a farm, &c. Held necessary to prove a considera- v. Biscoe.tion for the promise, where the agreement is in writing, as well 4 Dallas 152. as where it is by parol. And though a parol agreement will not give a title to lands, yet the party may recover damages for the non-performance.-Quære. ART. 50. As to the consideration of contracts, see many Cooper's good rules in Latin and English collected by Cooper, princi- Just. 587, pally from the Roman law, most of which will be found in dif- 594. ferent parts of this work, as rules and maxims have applied. 313, Good ART. 51. A contract made by parties is void, if it be of a 4 Day's cases kind to impose on the court and to interfere with the regular administration of justice. ART. 52. So a contract made in New York is void, for the sale of tickets in a lottery authorized only by another state, and not by New York or Congress. ART. 53. Consideration moving A to pay or do something, where B has the benefit. Numerous decisions have given rise to four classes of cases on this subject. win v. Goodwin. 5 Johns. R. of Hunt, &c. 327, 335, case Coles.-Will 1. As where A collaterally assures or guarantees B's Cro. El. 137, debt &c. to C at the very time it is contracted, and B prom- Kirkby v. ises to pay or do. Here the benefit done by C to B as a loan, iams v. Leapdelivery of goods, &c. is both the consideration of B's prom- er,cited ch. 9, ise, and A's guarantee or suretyship, and no consideration need a. 20, s. 9, be stated for A's undertaking. This is every surety's case who joins in the original contract. And see cases in the margin. &Ch. 50, a. 8. 2. As where A, subsequently to B's debt &c. being con- Roberts on tracted with C, collaterally guarantees it. These two consid- Frauds 232, erations are necessary, one for B's promise and one for A's, and both must be proved. Thus subsequently was the guaran 237. |