"sideration must move

It is sometimes laid down as a distinct rule that "the The conconsideration for a promise must move from the plaintiff," than which, it is said, "no rule is more clear in law" (a). In from the plaintiff. the case of Price v. Easton the declaration stated that W. P. owed the plaintiff £13, and that in consideration thereof and that W. P. had promised the defendant to work for him at certain wages and leave the amount in his hands, the defendant promised to pay the plaintiff the sum of £13; upon demurrer, the declaration was held bad, because "it did not show any consideration for the promise moving from the plaintiff to the defendant" (b). The meaning of which rule seems to be that the matter of the consideration must be done or suffered by the promisee himself, or, if by a third party, at the request and by the procurement of the promisee, and as the agreed equivalent for the promise; and, with this meaning, the rule seems to import no more than is necessarily implied in the conception of a consideration for the promise as already explained («).

and execu

The consideration of a promise may be some matter exe- Executed cuted or done at the same time as the promise is given, tory consiand in return for which it is given; as goods sold and de- derations. livered, work performed, money paid or lent, etc.; or it may be a promise to perform some matter in return for the promise then given, as a promise to deliver goods, or perform work, or pay money, etc. In the former case the consideration is called an executed consideration; in the latter it is called an executory one (d).

It is important to observe the distinction between a contract containing an executory consideration, and a mere offer or proposal of a contract upon a consideration then executory which first becomes a complete contract by the performance of the consideration; as where a request is made to perform the consideration upon certain terms, which may be accepted by a performance of the considera

ditors and bona fide purchasers for value, 2 Bl. Com. 297; Gully v. Bishop of Exeter, 10 B. & C. 584, 606; Pulvertoft v. Pulvertoft, 18 Ves. 84; Buckle v. Mitchell, ib. 100; Story, Eq. Jur. §§ 353, 425.

(a) Smart v. Chell, 7 Dowl. 781;

and see 2 Wms. Saund. 137 g.

(b) Price v. Easton, 4 B. & Ad.
433; and see Crow v. Rogers, 1 Str.
592; cited ante, p. 221; and see the
rule there stated as to parties.

(c) See ante, p. 10.
(d) See ante, p. 10.

Past con

tion according to the request (a). In the latter case there is no contract until the consideration is executed; and in the meantime the request or offer of the contract may be withdrawn. In the former case there is a binding contract independent of the execution of the consideration; the promise of performance and not the performance constituting the consideration, and the contract consisting of promises on both sides, which cannot be withdrawn after they have been mutually exchanged.

So far as regards the matter of the consideration, as being executed or executory, it may be observed that whatever matter, if executed, is sufficient to form a good executed consideration, if promised, is sufficient to form a good executory consideration; so that the distinction of executed and executory consideration has no bearing upon the question of the sufficiency of any particular matter to form a consideration.

A matter executed and past before the time of making sideration. the promise cannot constitute a valid consideration; for to give a promise in return for a past matter only, must necessarily be a voluntary and gratuitous act (b). In the case of Roscorla v. Thomas, the declaration, stating that in consideration that the plaintiff had bought a horse of the defendant at a certain price, the defendant promised that the horse was sound, was held bad; because the sale of the horse alleged to be the consideration for the promise was stated as past before the promise was made (c). Upon the same principle past debts are not a sufficient consideration. for a guarantee of such debts; but giving credit in future, or any other sufficient consideration, will support a promise to guarantee all debts past as well as future (d). A promissory note, given as a reward for past services which had been rendered gratuitously, was held not to be binding (e).

(a) See ante, p. 24.

(b) See Lampleigh v. Brathwait, Hob. 105; 1 Smith, L. C. 5th ed. p. 135; Hunt v. Bate, Dyer, 272 a; Eastwood v. Kenyon, 11 A. & E. 438, 452; per Tyndal, C.J., Thornton v. Jenyns, 1 M. & G. 166, 188; Raleigh v. Atkinson, 6 M. & W. 670.

(c) Roscorla v. Thomas, 3 Q. B. 234.

(d) Johnston v. Nicholls, 1 C. B. 251; Boyd v. Moyle, 2 C. B. 644; White v. Woodward, 5 C. B. 810; Hoad v. Grace, 7 H. & N. 494; 31 L. J. Ex. 98.

(e) Hulse v. Hulse, 17 C. B. 711; 25 L. J. C. P. 177.

It may here be noticed that where a contract is made upon an executed consideration, either by the consideration being executed upon request, or by the acceptance of the executed consideration, the consideration is not executed and past before the promise is made; but the execution of the consideration and the making of the promise are regarded in law as concurrent acts (a). In such contracts the only binding promise is that expressed or implied at the time of the execution of the consideration; and a promise subsequently made, in respect of the same consideration, however expressed, would be void, as being made on a past consideration; the only effect such a promise could have, would be by way of admission of the prior liability (b). A declaration, charging a debt for work and labour done by the plaintiff for the defendant, in consideration whereof the defendant afterwards promised to pay, was held bad, because it stated a past consideration, and did not show that the consideration was executed at the request of the defendant, or was accepted by him (c). In the case of Lampleigh v. Brathwait (d) the declaration claimed for services rendered by the plaintiff at the request of the defendant, alleging that afterwards, in consideration thereof, the defendant promised, etc.; and it was held good, because the services rendered at the request of the defendant implied a promise to pay for them, and the subsequent promise, which alone would not have been binding, merely related back to the original request.

perform

gation.

The doctrine prevailed for some time in the English law Promise to that an express promise to perform a previously existing previous moral obligation created a valid contract without any con- moral oblisideration of value; and the contract was then said to be made upon a moral consideration. But it is clear that a promise, if moved by a sense of moral obligation only, is, strictly speaking, gratuitous; and it has been at length decided that no contract arises, in general, in such case.

(a) See ante, p. 23.

(b) Hopkins v. Logan, 5 M. & W. 241; Kaye v. Dutton, 7 M. & G. 807; 815; Roscorlav. Thomas, 3 Q. B. 234.

933.

(c) Hayes v. Warren, 2 Strange, (d) 1 Smith's L. C. 5th ed. 135; ante, p. 24.

Promise to

perform previous moral obli

gation.

It was said by Lord Mansfield, C.J., that "where a man is under a moral obligation, which no court of law or equity can enforce, and promises, the honesty and rectitude of the thing is a consideration" (a). The case of Lee v. Muggeridge (b) continued for some time to be the leading authority upon this point: a woman, married and, therefore, incompetent to contract, gave a bond for repayment by her executors, of money advanced at her request to her son-in-law. After her husband's death she promised in writing that her executors should settle the bond. It was held that that promise was binding upon her executors. Mansfield, C.J., said "It has been long established, that where a person is bound morally and conscientiously to pay a debt, though not legally bound, a subsequent promise to pay will give a right of action. The only question, therefore, is whether there appears a good moral obligation. Now I cannot conceive that there can be a stronger moral obligation than is here stated. Here is a debt, created at the desire of the testatrix, lent in fact to her, though paid to her son-in-law. After her husband's death, she, knowing that this bond had been given, that her son-in-law had received the money and had not repaid it, knowing all this she promises that her executors shall pay. If then it has been frequently decided that a moral consideration is a good consideration for a promise to pay, this declaration is clearly good."

This doctrine after prevailing for some time and causing much uncertainty and confusion in the law of simple contracts was finally overruled in the case of Eastwood v. Kenyon (c). The question there arose, upon a motion in arrest of judgment, whether the declaration showed a sufficient consideration for the promise. It stated, in effect, that the plaintiff had voluntarily acted as guardian and agent for the defendant's wife while she was a minor and unmarried, and had voluntarily expended money for the improvement of her estate, and had obtained the money for

(a) Hawkes v. Saunders, Cowp. 289, 290; and see Atkins v. Hill, Cowp. 284, 289; per Mansfield, C.J., Gibbs v. Merrill, 3 Taunt. 307, 311; per Lord Ellenborough, C.J., Atkins

v. Banwell, 2 East, 505, 506.
(b) 5 Taunt. 36.

(c) 11 A. & E. 438; and see Wennall v. Adney, 3 B. & P. 249, note (a).

that purpose by borrowing it upon his promissory note, and that the defendant's wife had received the benefit of the expenditure, and after she came of age promised to pay the note, and after the marriage with the defendant, in consideration of the premises, the defendant promised to pay the note. It was argued for the plaintiff that the declaration disclosed a sufficient moral consideration to support the promise; but the Court, in a judgment in which all the authorities on the subject were reviewed, refused to acknowledge the doctrine that a moral obligation is a sufficient consideration for a subsequent promise, and held the declaration to be bad, because it stated no consideration but a past benefit, not conferred at the request of the defendant. In commenting on the doctrine in question they said :"The doctrine would annihilate the necessity for any consideration at all, inasmuch as the mere fact of giving a promise creates a moral obligation to perform it. The enforcement of such promises by law, however plausibly reconciled by the desire to effect all conscientious engagements, might be attended with mischievous consequences to society; one of which would be the frequent preference of voluntary undertakings to claims for just debts. Suits would thereby be multiplied, and voluntary undertakings would also be multiplied, to the prejudice of real creditors" (a). The law has since been considered as settled in accordance with this judgment (b).

There are some instances of promises which used to be referred to the principle of previous moral obligation, and which were still held to be binding, although that principle was rejected. Lord Mansfield gave the following, amongst other instances, as applications of the principle, namely:— A promise in renewal of a debt barred by the Statute of Limitations, a promise after full age to pay a debt contracted during infancy,-a promise by a person formerly bankrupt to pay a debt discharged by his certificate (c). The efficacy of such promises is now referred to the principle that a person may renounce the benefit of a law made for

(a) 11 A. & E. 450.

(b) Beaumont v. Reeve, 8 Q. B. 483, 487; Jennings v. Brown, 9 M. & W.

495, 591.

(c) Hawkes v. Saunders, Cowp. 289, 290.