*162] words, letters, and *figures set out in the next preceding replication, and in none other; and so the plaintiff said that the terms upon which it was in the fifth plea alleged that the said agreement and promise were made, were no part of the agreement and promise declared on, and the performance of them by the plaintiff was not a condition precedent to the plaintiff's right to be paid the said annuity.

The defendants demurred to the above replications, the ground of demurrer as to each being, "that the promise of the testator was voluntary only, and without consideration." Joinder.

Bullar, in support of the demurrers.(a)—The question is whether the promise stated in the declaration is founded upon any consideration,whether the true consideration for the promise is that alleged, viz. that the plaintiff would marry the lady named. The consideration stated, and no other, must be gleaned with certainty from the contract itself: Hawes v. Armstrong, 1 N. C. 761, 1 Scott 661. "It is not," says Tindal, C. J., in that case, "necessary that such consideration should appear in express terms; it would undoubtedly be sufficient in any case if the memorandum were so framed that any person of ordinary capacity must infer from the perusal of it that such and no other was the consideration upon which the undertaking was given. Not that a mere conjecture, however plausible, that the consideration stated *in the declaration was that intended by the memorandum, would

*163] be sufficient to satisfy the statute; but there must be a well

grounded inference to be necessarily collected from the terms of the memorandum, that the consideration stated in the declaration, and no other than such consideration, was intended by the parties to be the ground of the promise." In terms the document here does not contain the consideration stated in the declaration: that consideration was the former promise to assist the plaintiff "at starting;" and clearly that is not a sufficient consideration to support the promise. In Eastwood v. Kenyon, 11 Ad. & E. 438 (E. C. L. R. vol. 39), 3 P. & D. 276, it was held that a pecuniary benefit voluntarily conferred by the plaintiff and accepted by the defendant, is not such a consideration as will support an action of assumpsit on a subsequent express promise by the defendant to reimburse the plaintiff. In delivering the judgment of the court, Lord Denman says: Most of the older cases on this subject are collected in a learned note to the case of Wennell v. Adney, 3 Bos. & P. 249, and the conclusion there arrived at seems to be correct in general, 'that an express promise can only revive a precedent good consideration, which might have been enforced at law through the medium of an implied promise, had it not been suspended by some positive rule of law; but can give no original cause of action, if the obligation on which it is founded never could have been enforced at law, though not barred by any legal maxim or statute provision.' Instances are given of voidable contracts, as those of infants ratified by an express promise after age, and distinguished from void contracts, as of married women, not capable of ratification by them when widows: Loyd v. Lee, 1 Strange 94; debts

(a) The points marked for argument on the part of the defendant were as follows:"1. That the promise was a voluntary act of kindness only on the part of the testator to his nephew, and was not intended to be the foundation of a legal claim in an action:

"2. That there is no consideration expressed in the writing itself, or to be properly inferred from it, which would support the plaintiff's claim."

of bankrupts revived by subsequent promise after certificate; and similar cases. Since that time some cases *have occurred upon this subject, which require to be more particularly examined." After After [*164 observing upon Barnes v. Hedley, 2 Taunt. 184, Lee v. Muggeridge, 5 Taunt. 36, Cooper v. Martin, 4 East 76, Littlefield v. Shee, 2 B. & Ad. 811 (E. C. L. R. vol. 22), and Mitchinson v. Hewson, 7 T. R. 348, his Lordship in conclusion says:-"In holding this declaration bad because it states no consideration but a past benefit not conferred at the request of the defendant, we conceive that we are justified by the old common law of England." Chief Baron Skynner, in delivering the opinion of the judges in the House of Lords in Rann v. Hughes, 7 T. R. 350,(a) says: "It is undoubtedly true that every man is by the law of nature bound to fulfil his engagements. It is equally true that the law of this country supplies no means, nor affords any remedy, to compel the performance of an agreement made without sufficient consideration; such agreement is nudum pactum ex quo non oriter actio; and, whatsoever may be the sense of this maxim in the civil law, it is in the last-mentioned sense only that it is to be understood in our law. The declaration states that the defendant, being indebted as administratrix, promised to pay when requested, and the judgment is against the defendant generally. The being indebted is of itself a sufficient consideration to ground a promise, but the promise must be co-extensive with the consideration unless some particular consideration of fact can be found here to warrant the extension of it against the defendant in her own capacity. If a person indebted in one right, in consideration of forbearance for a particular time, promise to pay in another right, this convenience will be a sufficient consideration to warrant an action against him or her in the latter right: but here no sufficient consideration occurs to support the demand against her in her personal capacity; for, she derives no advantage *or convenience from the promise here made. For, if I promise generally to pay upon request what I [*165 was liable to pay upon request in another right, I derive no advantage or convenience from this promise, and therefore there is not sufficient consideration for it." In Hopkins v. Logan, 5 M. & W. 241,† it was held that an executed consideration, whereon the law implies a promise to pay on request (as, upon an account stated), is not sufficient to support a promise to pay at a future day. And Parke, B., says: "The promise which arises in law upon an account stated, is, to pay on request, and any other promise is nudum pactum, unless made upon a new consideration." [ERLE, C. J.-Your argument is based upon the assumption that all that the plaintiff was to do was past and gone before he received from the testator the promise of 150l. a year. BYLES, J.When was the annuity to commence? What is meant by "at starting?" ERLE, C. J.-"Starting" may mean commencing his married life.] The mere performance of an act which the party was by law or agreement bound to perform, is not a sufficient consideration. Selw. Ni. Pri. 12th edit. 44, citing Jackson v. Cobbin, 8 M. & W. 790,† and Crowhurst v. Laverack, 8 Exch. 208,† per Parke, B. Here, the plaintiff being already under an engagement to marry the lady named, his promise to perform that engagement afforded no consideration: Cowper v. Green, 7 M. & W. 633;† Clutterbuck v. Coffin, 4 Scott, N. R. 509, 3 M. & G. 842; Pothier on Obligations, p. 25, Evans's translation. C. B. N. S., VOL. IX.-8

As to the fifth plea, that shows a breach of a condition precedent, viz. that the plaintiff should not by his abandonment of his professional practice put it out of his power to realize the amount of income upon the realization of which the payment of the annuity was to cease.

V. Harcourt, contrà. (a)-It is now settled law that the pro*166] visions of the Statute of Frauds do not apply where the con

sideration is executed: Souch v. *Strawbridge, 2 C. B. 808 (E. *167] C. L. R. vol. 52); Green v. Saddington, 7 Ellis & B. 503 (E. C. L. R. vol. 90) and see the cases collected in Chitty on Contracts, 5th edit. pp. 454 et seq. Here, the promise is made by a third person, and not to the person to whom the original promise was made. In Chitty on Contracts, p. 57, it is said: "a past or executed consideration is not sufficient to support an assumpsit, unless such consideration was moved by the precedent request, either express or implied, of the party promising. Therefore, where A.'s servant was arrested for a trespass, and J. S., who knew A., without his knowledge bailed the servant, and afterwards A., for his friendship, promised to save him harmless,—it was held that the promise was void, because the bailing, which was the consideration, was the voluntary courtesy of J. S., and was past and executed before. And a promise, without any new consideration, to pay a debt already incurred by a third person, would fall within the same principle. But, where the plaintiff's act is moved or procured by the request of the party that gives the assumpsit, it will bind; for, though the promise follows, yet it is not naked, but couples itself with the precedent request, and the merits of the party procured by that suit; as if, in the case last put, the third person had been credited at the instance

(a) The points marked for argument on the part of the plaintiff were as follows:"As to the demurrer to the replication to the fourth plea,―That the agreement declared on can be sufficiently gathered from the writing:

"That the prior engagement with his intended wife did not prevent the marriage from being a sufficient consideration to support the testator's promise:

"That if before the marriage the testator might have retracted, yet, when the plaintiff married relying on the promise, the promise became as irrevocable and binding as the marriage:

"That the plea shows no retractation before the marriage:

"That it was quite unnecessary that there should be any request by the testator to the plaintiff to marry, other than the agreement:

"That the plea does not state that the parties intended that the payment should be voluntary or optional with the testator, and admits the agreement is one intended to bind :

"That, if it be suggested that the plea serves the double purpose of a denial of the contract and a plea in confession and avoidance, so as to enable the defendants on the argument to exclude the consideration of the sufficiency of the avoidance by contending that in truth the plea is non assumpsit, the court should not adopt that view which would render it proper to amend or strike out the plea, but should hold that the two questions simply are,-first, whether the writing is sufficient under the 4th section of the Statute of Frauds, and,- secondly, whether the prior engagement renders it nudum pactum, which cannot be enforced.

"As to the demurrer to the replication to the fifth plea,-That such a condition as the fifth plea supposes to exist cannot be gathered from the writing:

"That, if such a condition had been intended, it would naturally have been qualified by permission to leave off practice in case of weak health, old age, or other cause either absolutely preventing practice or rendering practice irksome, or preventing all reasonable prospect of success at the bar,-cases in which the presumption is that the testator intended that the provision should continue, rather than that it should cease:

"And that it is highly improbable that the condition set up by the fifth plea was contemplated by the parties, as there was apparently confidence and affection between them; and the court cannot assume that the plaintiff had not good reasons for discontinuing practice, as the form of the plea does not enable him to show by a replication what those reasons were."

of the defendant."(a) Again, at p. 60 (6th edit. p. 59), it is said: *A continuing consideration, being one in part executed, but [*168 which still continues, is also in many cases sufficient to sustain a promise; e. g. in consideration that the defendant had become and was the plaintiff's tenant, he undertook to manage the farm in a husbandlike manner; or, in consideration that the lessee then in possession had occupied the land and paid his rent, to save him harmless against all persons for his occupation, 'because his occupation and prompt payment of the rent is a continuing consideration.' So, marriage is a continuing consideration. So, the payment of money for the defendant, and the having obtained a release for him, amount to a good continuing consideration for his promise. And, where the plaintiff declared, that, in consideration he had bought three parcels of land on such a day, the defendant afterwards promised to make him a sufficient assurance: the consideration was adjudged not to be absolutely past, for, the assurance was the substance of the sale."(b) In Rolle's Abridgment, Action sur Case (Q.), pl. 9, p. 12, is the following passage,-"Si A., seisie d'un shop, bargaine ove B. a leaser ceo a luy pur 5 ans, rendant 408. rent, et 12d. d'ambideux parties est done pur performance de cest agréement, et puis, en consideration que A. faira le leas accordant al dit promise, B. promise a *paier à luy 301., sur que A. leas le shop accordant, [*169 ceo est bon consideracion d'aver action pur le 307. coment que la fuit un perfect bargaine devant cest promise fait, entant que le leas fuit fait accordant al promise devant cest promise fait. Pasch. 11 Jac. B. R. enter Jones & Clarke, adjudge." So, in Com. Dig. Action upon the Case upon Assumpsit (B. 12), it is said: "An assumpsit lies, though the consideration be executed in part; as, in consideration that he had done a thing at my request. So, if the consideration is continuing, though the act be executed; as, in consideration that the lessee now in possession had paid his rent very well, to save him harmless; for, prompt payment of the rent is a continuing consideration, when he remains in possession (citing Pearle v. Unger, Cro. Eliz. 94, 1 Leon. 102). In consideration that he will make a lease according to a former agreement; for, the agreement is not executed till the lease is made." These passages from Comyns's Digest were cited and relied upon by Littledale, J., in Payne v. Wilson, 7 B. & C. 423 (E. C. L. R. vol. 14), 1 M. & R. 708 (E. C. L. R. vol. 17). There, the plaintiff declared in assumpsit, that, in consideration that he, at the request of the defendant, would consent to suspend proceedings against A. on a cognovit, defendant promised to pay 301. on account of the debt (for which the cognovit was given) on the 1st of April then next: averment, that the plaintiff did suspend proceedings on the cognovit. The plaintiff at the trial proved the following agreement in writing,-" The plaintiff having, at my re

(a) The following authorities are referred to,-Hunt v. Bate, Dyer 272 a; Sidenham v. Worlington, 2 Leon. 224, 225; Lampleigh v. Brathwait, Hob. 106, Com. Dig. Action upon the Case upon Assumpsit (B.), (B. 12), 1 Saund. 264, n. (1); Lord Suffield v. Bruce, 2 Stark. R.

175.

(b) For these positions, the author cites Mattock v. Kinglake, 8 Ad. & E. 795, 1 P. & D. 46; Powley v. Walker, 5 T. R. 373; Legh v. Hewitt, 4 East 154; Pearle v. Unger, Cro. Eliz. 94, 1 Leon. 102, Bac. Abr. Assumpsit (D.), Com. Dig. Action upon the Case upon Assumpsit (B. 12); Adams v. Dansey, 6 Bingh. 506, 4 M. & P. 245; Marsh v. Rainsford, 2 Leon. 111; Sidenham v. Worlington, 2 Leon. 224; Web v. Russell, 2 Keble 99; Warcop v. Morse, Cro. Eliz. 138.

quest, consented to suspend proceedings against A., I do hereby, in consideration thereof, personally promise to pay 301., on account of the debt, on the 1st day of April:" and it was held,-first, that, as the request must have preceded the consent to suspend proceedings, the contract might have been declared on as an executory contract, and consequently that there was not any *variance, secondly, that the *170] consideration for the promise was sufficient, because it must be taken as a consent to suspend proceedings, at least until the 1st of April. [BYLES, J.-At what period was the annuity to commence ?] From the time of the marriage.(a) In England v. Davidson, 11 Ad. & E. 856 (E. C. L. R. vol. 39), 3 P. & D. 594, the defendant offered a reward to whoever could give such information as would lead to the conviction of a felon: the plaintiff, who was constable and peace officer of the district where the felony was committed, gave such information; and it was held, on demurrer, that the plaintiff's having given the information was a good consideration for a promise by the defendant to pay the reward. In Chitty on Contracts, 6th edit. p. 52, it is said: "A distinction is to be taken between the case of a mere gratuitous promise and that of a promise on the faith of which one party is induced to do some act which, but for such promise, he would not have done. And therefore, although if A. promise to buy a house for B., that is nothing; yet, if A. promise to buy a house for B., but requests B. to enter into the contract of purchase in his own name, and B. does so, it would seem that the law would imply a promise on the part of A. to reimburse B. any part of the purchase-money which he may be called upon to pay," citing Crosbie v. M'Doual, 13 Ves. 148, 158, 160. [ERLE, C. J., referred to Hartley v. Ponsonby, 7 Ellis & B. 872 (E. C. L. R. vol. 90).] In Montefiori v. Montefiori, 1 Sir W. Bl. 363, Joseph Montefiori, a Jew, being engaged in a marriage treaty, his brother Moses, to assist him in his designs, and represent him as a man of fortune, gave him a note for a large sum of money as the balance of accounts between him and his brother Joseph, which balance he (Moses) acknowledged to have in his hands, though in *truth no such balance, or anything like it, *171] existed. After the marriage, Moses reclaimed this note, as being given on no consideration; and the matter was referred to arbitration. The arbitrators awarded the note to be delivered up, which Joseph refused to do; upon which the court was moved for an attachment against him for non-performance of this award; and on his part a cross-motion was made to set aside the award, on a suggestion that the arbitrators were mistaken in point of law: and the award was set aside, on the ground that, "where, upon proposals of marriage, third persons represent anything material in a light different from the truth, even though it be by collusion with the husband, they shall be bound to make good the thing in the manner in which they represented it." So, in Bold v. Hutchinson, 20 Beavan 250, it was held, that, where, upon the marriage of two persons, a third party makes a representation, upon the faith of which that marriage takes place, he will be bound to make good that representation. As to the fifth plea, it is said that it was a condition precedent to the plaintiff's right to the annuity that he should continue the exercise of his profession of a barrister. His deriving an income of

(a) The plaintiff's professional career commenced in Easter Term, 1832.