The Elements of the Law of Contracts

perform previous moral obligation.

Promise to his own protection; it was laid down "that where the consideration was originally beneficial to the party promising, yet if he be protected from liability by some provision of the statute or common law, meant for his advantage, he may renounce the benefit of that law; and if he promises to pay the debt, which is only what an honest man ought to do, he is then bound by the law to perform it" (a).

Promise to perform previous

gation.

Promises to pay debts barred by bankruptcy were deprived of all binding effect by the Bankrupt Law Consolidation Act, 1849, 12 & 13 Vict. c. 106, s. 204, repealed but re-enacted in substance by the Bankruptcy Act, 1861. By the latter Act, 24 & 25 Vict. c. 134, s. 164, it is enacted that "After the order of discharge takes effect, the bankrupt shall not be liable to pay or satisfy any debt claim or demand proveable under the bankruptcy, or any part thereof, on any contract, promise, or agreement, verbal or written, made after adjudication." The above enactment, it may be observed, prevents any liability to pay debts proveable under the bankruptcy arising from contracts promises or agreements, even when made upon a new and valid consideration; so that a bankrupt cannot by any mode contract to pay a debt discharged by bankrupty (b).

Promises to pay debts barred by the Statutes of Limitation, and promises to pay debts contracted during infancy are treated more appropriately in connection, respectively, with the subjects of the limitation of actions on contracts, and the effect of infancy on the capacity to contract (c).

An express promise to perform a previous legal obligation if made gratuitously and without some new consideration legal obli- to support it, does not alone create any new obligation. Thus, if a person promises to pay in one right what he was previously liable to pay in another, as if a person promise to pay as his own debt, a debt due from him as executor only, such promise is not binding without a new consideration (d).

(a) Earle v. Oliver, 2 Ex. 71, 89; Flight v. Reed, 1 H. & C. 713, 716; 32 L. J. Ex. 265, 268; Wennall v. Adney, 3 B. & P. 249, note (a).

(b) Ashley v. Killick, 5 M. & W. 509.

(e) See post, Chap. IV, Sect. XI, "Statutes of Limitations; 99 ante, Chap. II. Sect. II, Capacity of Parties," p. 229.

(d) Rann v. Hughes, 7 T. R. 350 (a); ante, p. 125.

So, if a person being liable to another for unliquidated damages for an injury, promises to pay him a certain sum of money, such promise is merely gratuitous and void, unless made upon some consideration, as of a release of the right of action for damages or of staying proceedings in such action (a). A promise to pay a bill of exchange which had been accepted by the defendant was held invalid, there being no new consideration to support the promise, notwithstanding the bill had been lost, and therefore could not be put in suit (b).

Conversely, the performance of, or a promise to perform, Consideration of prewhat a person is under a previous legal obligation to per- vious legal form forms no new matter for a consideration and cannot obligation. support a promise. Thus, the payment of a debt which a person is under a legal obligation to pay will not support a promise made to him in consideration of his so doing (c). So, if a debt from its nature carries interest, an agreement for the creditor to give an extended time for payment in consideration of the debtor paying the interest during that time, is void for want of consideration (d).

So, payment of part of a debt is alone no consideration for the discharge or forbearance of the residue (e). But in arrangements made between a debtor and his creditors to pay a composition for his debts, the giving up a part of their claims by the other creditors is a valid consideration for each one giving up a part of his and accepting the composition in lieu of the whole; and so the payment or promise to pay the composition becomes a good consideration for the agreements of the creditors (f). Where an action has been commenced for an unliquidated demand, payment by the defendant of an agreed sum in discharge of such demand is a good consideration for a promise by the plaintiff to

(a) Smart v. Chell, 7 Dowl. 781; and see Wilkinson v. Byers, 1 A. & E. 106; Crowther v. Farrer, 15 Q. B. 677.

(b) Davis v. Dodd, 4 Taunt. 602. (c) Jones v. Waite, 5 Bing. N. C. 341, 356.

(d) Orme v. Galloway, 9 Ex. 544 ; 23 L. J. Ex. 118.

(e) Down v. Hatcher, 10 A. & E. 121; Smith v. Page, 15 M. & W. 683; and see post, Chap. IV, Sect. VII, "Payment."

(f) Steinman v. Magnus, 11 East, 390; Good v. Cheesman, 2 B. & Ad. 328; Norman v. Thompson, 4 Ex. 755; Boyd v. Hind, 1 H. & N. 938, 947; 26 L. J. Ex. 164, 166.

Considera

of pre

tion stay proceedings and pay his own costs; and according to vious legal Littledale, J., upon the authority of the case of Reynolds v. obligation. Pinhowe (a), even in the case of a liquidated demand the payment of such demand would be a good consideration for the same promise (b).

A promise to pay a witness at a trial compensation for his loss of time, in consideration of his attendance and evidence, is void; because the witness is bound by law upon his subpœna to attend and give evidence, without any other charge than for his expenses (c). A promise to pay money to a sheriff, in consideration of his doing that which he is bound by law to do without remuneration, as executing a writ of elegit, is void (d). The defendant offered a reward to whoever could give him such information as would lead to the conviction of a felon, and the plaintiff, a police constable, gave the required information and claimed the reward; the defendant disputed the plaintiff's right to claim the reward on the ground that he was legally bound as constable to give information, so that there was no consideration for the defendant's promise to pay him; but the Court held that as there might be information which the defendant was not bound as a constable to give, there might be a sufficient consideration to support the promise (e).

So, generally, where a contract is complete and binding, however it arose, a promise by one of the parties to perform what he is bound to do by the contract is not a sufficient consideration to support a new promise by the other party (ƒ). Where seamen have bound themselves by articles of agreement to serve for a whole voyage, the mere performance of their duties during the voyage forms no consideration for promises of increased pay; so, where some of the crew of a ship had deserted, a promise made by the captain to the remainder of the crew, who were before bound by articles of agreement to complete the voyage, to give them increased

(a) Cro. Eliz. 429.

(b) Wilkinson v. Byers, 1 A. & E. 106; and see Crowther v. Farrer, 15 Q. B. 677.

(d) Bridge v. Cage, Cro. Jac.

103.

(e) England v. Davidson, 11 A. & E. 856.

(f) Jackson v. Cobbin, 8 M. & W. 790.

wages merely for continuing the voyage was held void for want of consideration (a). But seamen are not bound to continue a voyage under circumstances dangerous to life; so, where in consequence of desertions it became dangerous to continue the voyage, the remaining seamen, not being bound to proceed, were at liberty to make a new contract stipulating for increased pay (b).

If a man has already contracted with another to do a certain thing, he cannot make the performance of it a consideration for a new promise to the same individual; but where there has been a promise to one person to do a certain thing, it is possible to make a promise to another to do the same thing, which may form a valid consideration in a contract with that other. As, where the plaintiff had contracted with another to deliver coals to the defendant, and afterwards by another contract made with the defendant, in consideration that the plaintiff would deliver the same coals to the defendant, the defendant promised the plaintiff to unload and discharge the coals in a certain manner, the consideration was held sufficient to support the promise of the defendant (c).

If money is paid to induce a person to do what he is under a previous legal obligation to do, the payment is, in general, considered as an involuntary payment, and the money may be recovered back (d).

considera

Where the consideration of a contract is executory, that Impossible is to say, in the form of a promise, it must, as a general tion. rule, be possible of performance; for a consideration, impossible of performance, would be equivalent to none. The effect of impossibility of performance upon an agreement, both where it exists at the time of making it, and where it supervenes subsequently, is treated of in a separate section (e).

(a) Stilk v. Myrick, 2 Camp. 317; Harris v. Watson, Peake, 72; Frazer v. Hatton, 2 C. B. N. S. 512; 26 L. J. C. P. 226; and see Clutterbuck v. Coffin, 3 M. & G. 842; Harris v. Carter, 3 E. & B. 559; 23 L. J. Q. B. 295.

(b) Hartley v. Ponsonby, 7 E. & B.

872; 26 L. J. Q. B. 322.

(c) Scotson v. Pegg, 6 H. & N. 295; 30 L. J. Ex. 225; and see Shadwell v. Shadwell, 9 C. B. N. S. 159; 30 L. J. C. P. 145.

(d) See ante, p. 56.

(e) Post, Chap. III, Sect. III, "Impossible Contracts."

Illegal consideration.

Considera. tion partly

void.

The consideration for a promise must also be legal; a promise founded on an illegal consideration is void. There is no difference, in this respect, between considerations executed and executory; a matter which is illegal is equally inefficacious to support a promise both before it is executed and after complete execution. The effect of illegality in the matter of a contract is treated in a separate section (a).

Where the alleged consideration of a promise is partly void, but on grounds not tainted with illegality, if a sufficient consideration remains, the contract is good and the promise binding; so where one promise is alleged to be made upon several considerations, and one or more of them is void, or insufficient in matter of form, yet if one of such considerations is good the promise will be supported (b). In the case of Shackell v. Rosier, Tindal, C.J., said:"When a promise rests on two considerations, one of which is impossible or unintelligible, you may reject the impossible or unintelligible, and resort to that which is possible and plain. But all the books take a distinction as to the case where part of the consideration is illegal." In that case the contract between the plaintiff and the defendant was that, in consideration of the plaintiff publishing a libel and defending an action for its publication, the defendant promised to indemnify the plaintiff from the costs; the consideration being illegal, at least so far as regarded the publication of the libel, the contract was held altogether void, and the plaintiff not entitled to recover on the indemnity (c).

If in a declaration a material part of the consideration is alleged untruly, or is omitted, or is not proved, it would create a variance which, if not amended, would be a ground of nonsuit (d). Where the contract was stated in the declaration to be the sale of a horse for £63, and the consideration proved was that the plaintiff should pay that sum, and

(a) Post, Chap. III, Sect. IV, "Illegal Contracts"; where see also as to the effect of illegality of part of the consideration.

(b) Bradburne v. Bradburne, Cro. Eliz. 149; Colson v. Carr, Cro. Eliz.

848; Ring v. Roxbrough, 2 C. & J. 418; King v. Sears, 2 Č. M. & R. 48. (c) Shackell v. Rosier, 2 Bing. N. C.

634.

(d) See Colson v. Carr, supra; 1 Chitty on Pleading, 7th ed. 304.

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