and sup

posed rights.

Pretended tiff, not stating any ground of dispute, and charged, as a consideration for the defendant's promise, that the plaintiff promised not to sue the defendant for the debt in dispute; the declaration was held bad as not showing a sufficient consideration (a). Where an action has been commenced, and a promise has been made in consideration of its forbearance, it is presumed against the promiser to have been well founded; "for suits are not presumed causeless, and the promise argues cause, in that he desired to stay off the suit" (b). Therefore, the promiser has to rebut this presumption and show that the consideration was defective by reason of there being no good or doubtful cause of action forborne, in order to discharge himself from the promise.

In the case of Barber v. Fox (c), the declaration charged a promise by an heir to pay a bond of his ancestor, in consideration of the forbearance of an action brought against the heir upon the bond, but it did not appear in the declaration that the heir was bound by the bond; after verdict for the plaintiff, it was held that the Court could make no intendment to that effect, and, therefore, there appeared to be no cause of action to support the forbearance alleged as the consideration for the promise. In Wade v. Simeon (d), the declaration charged a contract made upon the consideration that the plaintiff would forbear proceeding in an action which he had then commenced against the defendant, and the plea alleged that the plaintiff never had any cause of action against the defendant in respect of the action in the declaration mentioned, which the plaintiff at the time of the commencement of the action well knew; upon demurrer the plea was held good, Tindal, C.J., saying:-" In order to constitute a binding promise, the plaintiff must show a good consideration, something beneficial to the defendant, or detrimental to the plaintiff. Detrimental to the plaintiff it cannot be, if he has no cause of action: and beneficial to the defendant it cannot be ; for, in contemplation of law, the defence upon such an admitted state of facts must be successful,

(a) Edwards v. Baugh, 11 M. & W. 641.

(b) Bidwell v. Catton, Hob. 216; cited per Parke, B., Smith v. Mon

teith, 13 M. & W. 427, 440.

(c) 2 Wins. Saund. 136.
(d) 2 C. B. 548.

and the defendant will recover costs, which must be assumed to be a full compensation for all the legal damage he may sustain; the consideration therefore altogether fails."

The discharge of a prisoner from arrest, where the imprisonment is not legal and regular, is not a valid consideration; but an arrest will be presumed lawful and regular until the contrary is proved. Where a person makes a promise in consideration of the release of another from arrest, it is incumbent on him to show that the arrest was illegal, or malicious and without reasonable or probable cause, in order to avoid the promise for want of consideration; in an action upon a promise made upon the consideration of the plaintiff discharging a third party whom he had arrested upon a capias, a plea alleging only that the plaintiff had no cause of action against the person arrested, but not stating that the plaintiff knew that fact, was held bad (a). A promise to pay the debt of a deceased debtor in consideration of the creditor forbearing to arrest the dead body was held void, because such arrest would have been illegal, and therefore the forbearance of it formed no consideration (b).

and doubt.

Where there is some doubt, or dispute, or uncertainty as Disputed to a right, the release, or forbearance, or settlement of it may ful rights. form the matter for a valid consideration. In the case of a tenancy at will, if there be any doubt respecting the term whether it be a tenancy at will or for a certain term, the surrender of the tenancy will form a sufficient consideration (c); the release of a prisoner arrested for debt under a writ, which might have been set aside for irregularity, forms a valid consideration (d). The giving up a suit instituted to try a question respecting which the law is doubtful, or is supposed by the parties to be doubtful, is a good consideration for a promise (e).

(a) Smith v. Monteith, 13 M. & W. 427; and see Atkinson v. Bayntun, 1 Bing. N. C. 444; Atkinson v. Settree, Willes, 482; Herring v. Dorrell, 8 Dowl. 604.

(b) See Jones v. Ashburnham, 4 East, 455, 465.

(c) Richardson v. Mellish, 2 Bing. 229, 244; Longridge v. Dorville,

5 B. & A. 117, 123.

(d) Butcher v. Steuart, 11 M. & W. 857.

(e) Longridge v. Dorville, 5 B. & Ald. 117; Haigh v. Brooks, 10 A. & E. 309, 325, 330; Orrell v. Coppock, 26 L. J. C. 269; Ex p. Lucy, 4 De G. M. & G. 356; 22 L. J. C. 732.

Disputed and doubt

ful rights.

Equity will

not enforce contracts without consideration.

Forbearing to sue for a claim bona fide made, respecting which a reasonable doubt exists, although no proceedings have been commenced, is a good consideration (a). Where there was a dispute between the parties respecting the balance of mutual accounts, and it was agreed that they should give up their respective claims, and that one should pay the other a sum of money, the agreement was held to contain a sufficient consideration for the promise to pay (b).

Where the plaintiff had seized the defendant's goods as a distress for rent, some rent being due, though the amount was disputed, the withdrawal of the distress was held a good consideration for the promise of the defendant to pay a certain sum (c). So, where the plaintiffs had detained the defendant's ship under a claim for a collision which was disputed, the release of the ship was held a good consideration for a promise of the defendant to pay the damages sustained (d). The commissioners of excise had made a seizure of spirits belonging to the defendant and had commenced proceedings for their condemnation; the restoration of the spirits and the relinquishment of the suit for condemnation was held to be a good consideration for the payment by the defendants of the value (e).

The Courts of Equity will not grant specific performance of contracts without consideration. In the case of simple contracts, if a consideration be wanting, there is no contract, either at law or in equity; and equity will not supply the defect of the consideration. In the case of contracts under seal, no consideration is necessary to create a binding contract; but if the contract is voluntary and not based on consideration, the Court will not assist it with specific performance; though it will not interpose to set it aside merely on that ground (f). By an indenture made with trustees, a father, in considera

(a) Cook v. Wright, 1 B. & S. 559; 30 L. J. Q. B. 321.

(b) Llewellyn v. Llewellyn, 3 D. & L. 318.

(c) Skeate v. Beale, 11 A. & E. 983.

(d) Longridge v. Dorville, 5 B. &

Ald. 117.

(e) Allee v. Backhouse, 3 M. & W. 633.

(f) Pulvertoft v. Pulvertoft, 18 Ves. 84, 99; Jefferys v. Jefferys, 1 Cr. & Ph. 138; Collinson v. Pattrick, 2 Keen, 123, 134; M'Fadden v. Jenkyns, 1 Hare, 458, 461; Toker v. Toker, 32 L. J. C. 322, 325.

tion of natural love and affection for his daughters, conveyed certain freehold and covenanted to surrender certain copyhold estates to the trustees upon trusts for the benefit of his daughters; the Court decreed the execution of the trusts with regard to the freeholds, because the title of the trustees to the freeholds was complete by the conveyance, but refused to enforce the covenant to surrender the copyholds because it was voluntary (a). So with a covenant to transfer stock, if it rests in covenant and is purely voluntary, a court of equity will not execute such voluntary covenant; but if the party has completely transferred the stock, though it is - voluntary, yet the legal conveyance being effectually made, the equitable interest will be enforced (b).

Upon the same principle Courts of Equity will not enforce imperfect gifts: as, a check given gratuitously and not presented before the death of the donor (c); an assignment of a bond without consideration (d); an assignment of stock or shares by a deed in consideration of naturai love and affection and for the benefit of a child, without a legal transfer of the stock (e); a voluntary agreement to grant an estate made only for the purpose of giving the grantee a qualification for Parliament (f); but where the gift is complete, or the contract executed, a court of equity will not interfere with the transaction merely upon the ground that it was voluntary and without consideration (g). Thus, a purchaser for value of an interest in land cannot require a voluntary deed or agreement affecting the estate to be delivered up to him to be cancelled (h).

The Courts of Equity will not supply a defect in a voluntary appointment in execution of a power, except in favour of a wife or child (i). So, the Courts of Equity will not

(a) Jefferys v. Jefferys, supra.

(b) Colman v. Sarrel, 3 Bro. C. C. 12; 1 Ves. jun. 50; Ellison v. Ellison, 6 Ves. 656, 661; 1 White & Tudor, L. C. 2nd ed. 199.

(c) Tate v. Hilbert, 2 Ves. jun. 111. Whether such check is valid at law against the executor, sce ib.

(d) Edwards v. Jones, 1 Myl. & Cr. 226; and see Tufnell v. Constable, 8 Sim. 69.

(e) Dillon v. Coppin, 4 My. & Cr. 647; and see Antrobus v. Smith, 12 Ves. 39.

(f) Callaghan v. Callaghan, 8 Cl. & Fin. 374.

(g) De Hoghton v. Money, L. Rep. 1 Eq. 154, 158; Fortescue v. Barnett, 3 My. & Cr. 36; explained in Edwards v. Jones, 1 M. & Cr. 226, 239. (h) De Hoghton v. Money, supra. (i) Sugden on Powers, 8th ed. 534.

execute imperfect voluntary declarations of trust (a). But a declaration of trust is considered in a court of equity as equivalent to a transfer of the legal interest in a court of law; and if the transaction by which the trust is created is complete, it will not be disturbed for want of consideration (b).

The adequacy of the consideration is not regarded in equity any more than at law; and mere inadequacy of the consideration is not a ground upon which the Courts of Equity will rescind a contract, or even refuse a decree for specific performance (c). But great inadequacy of consideration may afford evidence of fraud or imposition; and upon that ground relief might be granted (d).

Absolute promise.

THE promise may in its terms be absolute or conditional. An absolute promise is one of which the performance is due immediately, and independently of any event; as a debt due and payable at the present time. Such a debt, for

(a) Gaskell v. Gaskell, 2 Y. & J. 502; Colyear v. Countess Mulgrave, 2 Keen, 81.

(b) Collinson v. Pattrick, 2 Keen, 123, 134; M'Fadden v. Jenkyns, 1 Hare, 458, 1 Phil. 153; Stapleton v. Stapleton, 14 Sim. 186.

(c) Story, Eq. Jur. § 244; Coles v. Trecothick, 9 Ves. 234, 246; Griffith

v. Spratley, 1 Cox, 383; Abbott v. Sworder, 4 De G. & S. 448; Harrison v. Guest, 6 De G. M. & G. 424.

(d) Ib.; and see Lowther v. Lowther, 13 Ves. 95, 103; Borell v. Dunn, 2 Hare, 440, 450; Davies v. Cooper, 5 M. & Cr. 270; Cockell v. Taylor, 15 Beav. 103; Clark v. Malpas, 31 Beav. 80.