REVISED REPORTS

BEING

A REPUBLICATION OF SUCH CASES

IN THE

ENGLISH COURTS OF COMMON LAW AND EQUITY,

FROM THE YEAR 1785,

AS ARE STILL OF PRACTICAL UTILITY.

EDITED BY

THE RIGHT HONOURABLE

SIR FREDERICK POLLOCK, BART., D.C.L., LL.D.,

JOHNSON; 6 HURLSTONE & NORMAN; 7 JURIST, N.S.

LONDON:

SWEET AND MAXWELL, LIMITED, 3, CHANCERY LANE.

BOSTON:

LITTLE, BROWN & CO.

ISED
ORTS

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PREFACE TO VOL. CXXIII.

THE most difficult case in this volume is, without doubt, Scotson v. Pegg, p. 516. It involves a most subtle point in 0, 6 the doctrine of consideration, but is so far from disposing of 4, 6 it that after half a century the question-or rather a double question remains open and has been elaborately discussed 8 in both England and America without any general agreement being arrived at. Now the two branches of the theoretical &2 question, stated in general terms, are as follows. Z. is bound by a subsisting contract with A. to a certain performance. Is (a) the act of performance by Z., (b) a new promise of the same performance by Z. to a third person, P., a good consideration for a promise by P. to A.? In Scotson v. Pegg the two branches are nowhere clearly distinguished. The judgment of Wilde, B. seems to be on the point of making the 5 distinction which according to Leake and Langdell, and in 5 the present writer's humble opinion, is correct, namely that 11 in case (a) there is not a good consideration and in (b) there 1 is; but the last sentence appears again to ignore it and in fact the head-note, although it appears to express the actual & 5 result, is directly contrary to what any careful reader would suppose to be the learned Baron's proposition of law if that last sentence were omitted. There is only one other judgment, that of Martin, B. It assumes that the determining element in the legal value of the consideration for a promise is benefit to the promisor. But we venture to think this is not so, Langdell having shown, to our mind conclusively, that the true test in all cases is detriment to the promisee. In the course of the argument, again, Wilde, B. made an observation which, if it had really been applicable, perhaps

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