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law of England adopts and recognizes the rule of the civil law, ex nudo pacto non oritur actio f. But want of consideration must be specially & pleaded. Any act of the plaintiff, from which the defendant derives a benefit or advantage, or any labour, detriment", or inconvenience sustained by the plaintiff, however smalli the benefit or inconvenience may be, is a sufficient consideration, if such act is performed, or such inconvenience suffered by the plaintiff, with the consentk, either express or implied, of the defendant, or in the language of pleading, “at the special instance and request of the defendant.” It is however, clearly established, that the consideration, must be of some value, in contemplation of law (3); for where A. in consideration that B. would make an estate at will to him, as his counsel should devise, promised, &c. it was holden a void promise, for want of a sufficient consideration, because B. might immediately determine his will !. So where the testator had committed to the care of the defendant his children m, and the disposition of his goods, during their minority, for their education, and thereupon the defendant promised the testator to procure

the assurance of certain lands to one of the testator's children, the consideration was holden insufficient; for the law would not intend that the defendant' had made any private gain to himself, but that he had disposed of the goods for the benefit of the children, according to the trust reposed in him. The mere performance of an act, which the party was by law bound to perform, is not a sufficient consideration.

f 17 E. 4. 4 b Plowd. 305. a. 308. b. g Passenger v. Brookes, Bingh.

N. C. 587. h Williamson v. Clements, 1 Taunt.

623. i Sturlyn v. Albany, Cro. Eliz. 67.

March v. Culpepper, Cro. Car. 70.

See 4 Taunt. 611, and post. p. 48.
k Stokes v. Lewis, 1 T. R, 21. Child v.

Morley, 8 T. R. 610.
1 1 Roll. Abr. 23. pl. 29.
m Smith v. Smith, 3 Leon. 88.

(3) The case of Wheatley v. Law, Cro. Jac. 667. (recognized by Holt, C. J. in Coggs v. Bernard, Lord Raym. 920.) in which it was adjudged, that the acceptance of a sum of money by the defendant from the plaintiff

, for the purpose of paying it over to a creditor of the plaintiff, was a sufficient consideration to support a promise by the defendant to perform the trust, may appear an exception to this rule. The exception, however, is only apparent; for, from the report of the same case, in Palm. 281. under the name of Loe's case, it is evident, that the Chief Justice considered the detention of the money as a damage to the plaintiff. Whether the application of the rule was just in that case, is another question. It is clear, however, that the rule itself was recognized by the court.

Hence a promise made by the master, when a ship was in distress, to pay an extra sum to a mariner as an inducement to extraordinary exertion on his part, has been holden to be void; because a seaman is bound to exert himself to the utmost in the service of the ship n. So where, in the course of a voyage, some of the seamen deserted, and the captain, not being able to find others to supply their place, promised to divide the wages, which would have become due to them, among the remainder of the crew, it was holden”, that this promise was void for want of a consideration; for the desertion of a part of the crew was to be considered as an emergency of the voyage as much as their death, and the remainder of the crew were bound, by the terms of their original contract, to exert themselves to the utmost to bring the ship in safety to her destined port. Natural affection, although sufficient to raise an use, is not a sufficient consideration, whereupon an assumpsit may be founded P (4). Where A. is indebted to B. in one sum, and B. indebted to C. in a less sum, if B. promises A. to discharge him of so much of his debt, as amounts to B.'s debt to C., this will be a good consideration for a promise by A. to pay C. the debt due to him from B 4.

The defendant being indebted to the testator in a sum of money upon simple contract", the plaintiff, his executor, agreed to take a less sum, payable by instalments, in lieu of the original debt, in consideration whereof, the defendant promised the executor to pay him the lesser sum. sit brought, an exception was taken, in arrest of judgment, that the consideration was insufficient, because it did not appear that the plaintiff had discharged the defendant of the

On assump

n Harris v. Watson, Peake, N. P.C. p Agreed by the court, in Bret. v. J.S. 72. Lord Kenyon, C. J.

and wife, Cro. Eliz. 755. o Stilk v. Myrick, 2 Campb. 317. q Gouldsborough, 49.

r Goring v. Goring, Yelv. 10, 11.

(4) A release of an equity of redemption is a good consideration, and the common law will take notice, that the mortgagor has an equity to be relieved in Chancery. Thorpe v. Thorpe, Lord Raym. 663. But see Preston v. Christmas, 2 Wils. 87. where it was holden, that the release of an equity of redemption was not of any value in contemplation of law. İn VVells v. Wells, 1 Lev, 273, a release of an equitable interest was held a good consideration How far a moral obligation is a sufficient consideration, and what must be understood by that term, see an elaborate note by the learned reporters of the cases adjudged in the Court of Common Pleas, in Wennall v. Adney, 3 Bos. and Pul. 249.

original debt. But the objection was over-ruled, because the original debt being due to the plaintiff, as executor, the action to recover that must have been in the detinet; but by the agreement on the part of the plaintiff to take a less sum, and the promise by the defendant to pay that sum, it became the proper debt of the plaintiff, and the action for it maintainable in his own name, without being named executor. And (by Yelverton, Justice, although the less sum is not any satisfaction of the greater, because they are both of one nature, yet in respect that the nature of the action was changed, it was, therefore, a good consideration.

In order to facilitate the making of an agreement, for which there was sufficient consideration between the plaintiff and a third person, the defendant, who received no benefit to himself by the agreement, became party thereto; it was holden, that as the agreement was such as the plaintiff would not have made, unless the defendant had acceded, there was a sufficient consideration for the defendant's promise .

Forbearance of Suitin what Cases a sufficient Consideration.-If a creditor, at the request of his debtor, forbear to sue him for a certain time, that is a sufficient consideration for a new promise, by the debtor for the non-performance of which an action of assumpsit may be maintained. So if a creditor at the request of J. S. forbear to sue his debtor for a certain time t, that is a sufficient consideration to support a promise by J. S. to pay the debt. But by Stat. of Frauds, 29 Car. 2. c. 3. s. 4. this agreement must be in writing u. Forbearance to sue an executor (having assets) for a certain time upon a simple contract debt of his testator, is a good consideration to found a promise by the executor to pay the debt *. So forbearance to sue an executor for a reasonable time for the debt of his testator, although the executor have not assetsy; but the agreement by the executor to pay the debt must be in writing?, otherwise it will be void by Stat. of Frauds, 29 Car. 2. c. 3. s. 4. That a forbearance to sue may be a good consideration, such forbearance must either be absolute , or for a definite portion of time b, or a reasonable time c; forbearance for a little d, or some time e, is not sufficient. In cases

8 Bailey v. Croft, 4 Taunt. 611. z Grindall v. Davies, I Freem. 532. t 1 Roll. Abr. 27. pl. 49.

a Mapes v. Sidney, Cro. Jac. 683. u King v. Wilson, per Raym. C. J. b Fish v. Richardson, Cro. Jac. 47. Str. -73.

c Johnson v. Whitchcott, 1 Roll. Abr. x Fish v. Richardson, Cro. Jac. 47. 24. pl. 33.

and Yelv, 55. Confirmed in Bond v. di Roll. Abr. 23. pl. 25. Payne, Cro. Jac. 273.

e Id. pl. 26. y Johnson v. Whitchcott, 1 Roll. Abr.

24. pl. 33.

where an action is brought against a defendant, on a promise made, in consideration of forbearance of suit, an objection will not be allowed, after verdict, that the declaration does not state how the original debt accrued; for this is only inducement to the actionf. So if the declaration omit to state to whom the plaintiff forbore and gave day of payment, the omission will be cured by verdict 6. But, upon special demurrer, it has been holden not sufficient to state a consideration to forbear generally, unless it be also shewn, that there was some person to be forborne. Plaintiff declared, that B., since deceased, was at his death indebted to the plaintiff in a sum of money for goods sold and delivered h, whereof defendant Nancy had notice, and thereupon, after the death of B. defendant Nancy, before her marriage with other defendant A. in consideration of the premises, and also in consideration that plaintiff would forbear and give day of payment of said sum of money, as aftermentioned, by note in writing, signed by her according to the statute, &c. on 20th March, 1801, promised plaintiff to discharge the debt in a reasonable time : That plaintiff had forborne from the time of the promise hitherto, yet defendant refused to pay: special demurrer, assigning for causes, that it was not alleged, from whom said sum of money was due at time of promise, or that any person was then liable to pay the plaintiff that sum, or to whom plaintiff had forborne, and given day of payment of said sum, and in general, that declaration did not disclose any legal and sufficient consideration for the supposed promise, or any good cause of action. The court were of opinion, that the declaration was bad, observing, that “it is a known rule of law, that to sustain a promise, or to render it obligatory, there must be either a benefit to the party making the promise, or some loss or disadvantage to the party to whom such promise is made; otherwise it is considered as nudum pactum, and cannot be enforced. It is improperly termed a forbearance to sue, when it is not shewn that there was any person liable to be sued, from whom satisfaction might have been obtained, and in respect to whom plaintiff may have been said to have forborne suit, at the time when the promise was made. There might not have been any administrator, or if administration granted, any assets of the deceased; or the deceased might have been a bastard, and have had no legal representatives entitled to take out administration of his effects." The consideration of forbearance is not confined to forbear

Jones v. Ashburnham and Nancy, ux. 4 East, 455.

f Austen v. Bewley, Cro. Jac. 548.

Therne v. Fuller, Cro Jac. 396.
g Marshall v. Birkenshaw, 1 Bos. and

Pul. N. R. 172.
VOL. I.

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ance from suing by action ; for forbearance to sue, though the party is liable in equity only', or desisting from a suit in Chanceryk, or the giving up a suit instituted in the Admiralty Court, to try a question respecting which the law is doubtful, has been holden to be a good consideration. So desisting from further complaint before a justice of the peace m; so forbearing to proceed upon a capias utlagatum "; so staying the trial of a cause after issue joined ", is a good consideration for a promise to pay the costs incurred. Neither is it necessary to shew a consideration equally extensive with the promise; for forbearance by plaintiff, at defendant's request to enforce a fi. fa. against the goods of a third person for £60 is a valid consideration for defendant's promise to pay plaintiff £107 in seven days.

In what Cases Forbearance of Suit is not a Consideration.Forbearance of suit against a defendant, where originally there was not any cause of action, is not a consideration to support an assumpsit; A. and B. were bound jointly and severally in a bond 9 to C. who released to A. Afterwards B., in consideration that C. would forbear to sue him for the payment of the money due on the bond, promised to pay it. On assumpsit brought, and a special verdict, the court were clearly of opinion, that the debt having been entirely discharged by the release r made by the obligee to A., there was not any consideration whereon an assumpsit might be grounded. So where in assumpsits, it was stated, that there were controversies between the plaintiff and defendant, concerning the profits of certain lands, which the father of the defendant had taken in his life-time, and that the plaintiff had purchased a writ out of chancery to the intent to exhibit a bill against the defendant for the said profits; the defendant, in consideration that the plaintiff would surcease his suit, promised the plaintiff that if he could prove, that the father of the defendant had taken the profits, or had the possession of the lands, under the title of the father of the plaintiff, he, defendant, would pay the plaintiff for the said profits. After verdict for the plaintiff upon non-assumpsit, the court were of opinion, that there was not any good consideration ; for it was not alleged that the defendant was heir or executor, and even if it had

i Scott v. Stephenson, 1 Lev. 71.

Dowdenay v Oland, Cro. Eliz. 768.
I See also Coulston v. Carr. Cro. Eliz.

847.
m Longridge v. Dorville, 5 B. & A. 117.

Rippon v. Norton, Cro. Eliz. 881. n Jennings v. Harley, Cro. Eliz. 409.

and Yelv. 19.

o Smith v. Algar, 1 B. & Ad. 603.
p Dell v. Fereby, Cro. Eliz. 868.
q Hammon v. Roll, March, 202.
r i Inst. 232. a.
s Tooley v. Windham, Cro. Eliz. 206.

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