injury sustained by the non-performance of a parol agreement. Agreements are distinguished into agreements by specialty, i. e. by deed under seal, and agreements by parol. The law of England does not recognize any other distinction. If agreements are merely written, and not specialties, they are parol agreements (a). The action of assumpsit is confined to agreements by parol, the action of covenant or debt being the proper remedy for the nonperformance of agreements by specialty (b), for it is a general rule that assumpsit will not lie where there is a remedy of a higher nature (c). The essential parts of every parol agreement are, the promise or undertaking of one party, and the consideration on which such promise or undertaking is founded, proceeding from the other party. Sometimes the promise is expressed by the party; sometimes it is raised by implication of law. In the former case it is termed an express, in the latter an implied, promise. In parol agreements the law will not imply a consideration (except in the case of bills of exchange and promissory notes, which depend upon the law merchant); consequently, in actions of assumpsit, a consideration must be stated and proved.

Of the Consideration.-Every promise, for the non-performance of which an action of assumpsit may be maintained, must be founded on a sufficient consideration (d), and no action will lie for a mere nonfeasance, unless the promise is founded on a consideration (e). This consideration is either of benefit to the defendant (f) or of benefit to a stranger (g), or of damage, or of loss (h) sustained by the plaintiff, at the request of the defendant; and herein the law of England adopts and recognizes the rule of the civil law, ex nudo pacto non oritur actio (i). Any act of the plaintiff, from which the defendant derives (or expects to derive, Haigh v. Brooks, 10 A. & E. 309) a benefit or advantage, or any labour, detriment (k) or inconvenience sustained by the plaintiff, however small (1) the benefit or inconvenience may be, is a sufficient consideration, if such act is performed, or such inconvenience suffered by the plaintiff, at the request or with the consent (m), either express or implied, of the defendant. The giving up to the defendant a void guarantee for in

(a) Rann v. Hughes, 7 T. R. 351, n. (b) Bennus v. Guyldley, Cro. Jac. 505. (c) Bulstrode v. Gilburn, 2 Str. 1027; Schlencker v. Moxsy, 3 B. & C. 789; Baber v. Harris, 9 A. & E. 532.

(d) 1 Roll. Abr. 9, line 41; Doct. and Stud. Dial. 2, ch. 24.

(e) Elsee v. Gatward, 5 T. R. 143. (f) Per Buller, J., in Nerot v. Wallace, 3 T. R. 24; and Cooke v. Oxley, 3 T. R. 653.

(g) Per Gawdy and Fenner, Js., in Greenleaf v. Barker, Cro. Eliz. 194.

(h) Per Ellenborough, C. J., in Bunn v.

Guy, 4 East, 194. See Bainbridge v.
Firmstone, 8 A. & E. 743.

(i) 17 Edw. IV. 4 b.; Plowd. 305, a, 308, b; and see per Campbell, C. J., in Gerhard v. Bates, 2 E. & B. 487.

(k) Williamson v. Clements, 1 Taunt. 523.

(1) Sturlyn v. Albany, Cro. Eliz. 67; March v. Culpepper, Cro. Car. 70. See Bailey v. Croft, 4 Taunt. 611, post, p. 46; Jones v. Waite, 5 B. N. C. 341.

(m) Stokes v. Lewis, 1 T. R. 21; Child v. Morley, 8 T. R. 610.

stance, and even the paper on which it is written; Haigh v. Brooks (1); and so if A. places a sum of money in the hands of B. for the purpose of handing it over to C.; Wheatley v. Low, Cro. Jac. 667; Shilliber v. Glynn, 2 M. & W. 143; or investing it securely; Whitehead v. Greetham, 2 Bing. 464; this is sufficient to raise an assumpsit by B. It is, however, clearly established, that the consideration must be of some value, in contemplation of law (m); for where A. in consideration that B. would make an estate at will to him, as his counsel should advise, promised, &c., it was held a void promise, for want of a sufficient consideration, because B. might immediately determine his will (n). So where the testator had committed to the care of the defendant his children, and the disposition of his goods, during their minority, for their education, and thereupon the defendant promised the testator to procure the assurance of certain lands to one of the testator's children, the consideration was held insufficient; for the law would not intend that the defendant had made any private gain to himself, but that he had disposed of the goods for the benefit of the children, according to the trust reposed in him (o). So where the consideration stated was the conveyance of all the interest of A. in certain property to third parties, but it appeared that no interest had in reality passed by the conveyance, although executed at defendant's request, the declaration was held bad after verdict, as not disclosing any legal consideration. Kaye v. Dutton, 2 D. & L. 291; 13 L. J., C. P.

183.

The mere performance of an act, which the party was by law or agreement (p) bound to perform, is not a sufficient consideration (q). Hence a promise made by the master, when a ship was in distress, to pay an extra sum to a mariner as an inducement to extraordinary exertion on his part, has been held to be void; because a seaman is bound to exert himself to the utmost in the service of the ship (r). So where, in the course of a voyage, some of the seamen deserted, and the captain, not being able to find others to supply their place, promised to divide the wages, which would have become due to them, among the remainder of the crew, it was held, that this promise was void for want of a consideration; for the desertion of a part of the crew was to be considered as an emergency of the voyage as much as their death, and the remainder of the crew were bound, by the terms of their original contract, to exert themselves to the utmost to bring the ship in safety to her destined port (s). So where a mercantile account was agreed to between the plaintiff and defendant, upon which by usage

(1) Hart v. Miles, 27 L. J., C. P. 218,

асс.

(m) Per Patteson, J., Thomas v. Thomas, 2 Q. B. 851.

(n) 1 Roll. Abr. 23, pl. 29.

(0) Smith v. Smith, 3 Leon. 88.

(p) Jackson v. Cobbin, 8 M. & W. 790. (q) Per Parke, B., Crowhurst v. Laverack, 8 Exch. 208.

(r) Harris v. Watson, Peake, N. P. C. 72, Lord Kenyon, C. J.

(s) Stilk v. Myrick, 2 Campb. 317.

interest at £5 per cent. was payable, an agreement by defendant to pay interest at that rate was held insufficient to support a promise by the plaintiff, not to require the principal without six months notice. Örme v. Galloway, 9 Exch. 544; 23 L. J., Exch. 118. But where the defendant offered a reward to any person who would give such information as would lead to the conviction of a felon, the plaintiff, who was a constable and peace officer of the district where the felony was committed, was held entitled to the reward on giving the requisite information, this being considered a good consideration for a promise by the defendant to pay the reward (t). So, where the plaintiff agreed to enter as captain's cook on board of a brig of war, upon an undertaking by the defendant, the commander of the vessel, to pay him wages beyond the government pay, which he would be entitled to on his rating as an able seaman; it was held, that there was a sufficient consideration for the agreement to entitle the plaintiff, on the services being performed, to maintain an action against the defendant for the extra wages (u).

Natural affection, although sufficient to raise an use, is not a sufficient consideration whereon an assumpsit may be founded (x). A release of an equity of redemption is a good consideration, and the common law will take notice, that the mortgagor has an equity to be relieved in Chancery. Thorpe v. Thorpe, Lord Raym. 663; Wells v. Wells, 1 Lev. 273; but see Preston v. Christmas, 2 Wils. 87 (y); and so of the assignment of a chose in action; Mouldsdale v. Burchall, 2 W. Bl. 820; per Buller, J., Master v. Miller, 4 T. R. 341; per Lord Ellenborough, in Surtees v. Hubbord, 4 Esp. 203. Where A. is indebted to B. in one sum, and B. is indebted to C. in a less sum, if B. promises A. to discharge him of so much of his debt as amounts to B.'s debt to C., this will be a good consideration for a promise by A. to pay C. the debt due to him from B. (2). A mere accord is no consideration (a).

The defendant being indebted to the testator in a sum of money upon simple contract, the plaintiff, his executor, agreed to take a less sum, payable by instalments, in lieu of the original debt; in consideration whereof, the defendant promised the executor to pay him the lesser sum. On assumpsit brought, an exception was taken, in arrest of judgment, that the consideration was insufficient, because it did not appear that the plaintiff had discharged the defendant of the original debt. But the objection was overruled, because the original debt being due to the plaintiff, as executor, the action to recover that must have been in the detinet; but by the

(t) England v. Davidson, 11 A. & E. 856; and see Gerhard v. Bates, 2 E. & B. 487.

(u) Clutterbuck v. Coffin, 3 M. & G. 842.

(x) Bret v. J. S., Cro Eliz. 755. See also Thomas v. Thomas, 2 Q. B. 851; White v. Bluett, 2 C. L. R. 301.

(y) How far a moral obligation is a sufficient consideration, see a note to Wennall v. Adney, 3 B. & P. 249, cited in Eastwood v. Kenyon, 11 A. & E. 438; and see post, p. 52.

(z) Gouldsborough, 49; and see Fairlie v. Denton, 8 B. & C. 395.

(a) Lynn v. Bruce, 2 H. Bl. 317.

agreement on the part of the plaintiff to take a less sum, and the promise by the defendant to pay that sum, it became the proper debt of the plaintiff, and the action for it maintainable in his own name, without being named executor. And (by Yelverton, Justice), although the less sum is not any satisfaction of the greater, because they are both of one nature, yet in respect that the nature of the action was changed, it was, therefore, a good consideration (b).

In order to facilitate the making of an agreement, for which there was sufficient consideration between the plaintiff and a third person, the defendant, who received no benefit to himself by the agreement, became party thereto; it was held, that as the agreement was such as the plaintiff would not have made, unless the defendant had acceded, there was a sufficient consideration for the defendant's promise (c).

Forbearance of Suit-in what Cases a sufficient Consideration.If a creditor, at the request of his debtor, forbear to sue him for a certain time, that is a sufficient consideration for a new promise by the debtor, for the non-performance of which an action of assumpsit may be maintained. So if a creditor at the request of J. S. forbear to sue his debtor for a certain time, that is a sufficient consideration to support a promise by J. S. to pay the debt (d). But by Stat. of Frauds, 29 Car. II. c. 3, s. 4, this agreement must be in writing (e). Forbearance to sue an executor (having assets) for a certain time upon a simple contract debt of his testator, is a good consideration to found a promise by the executor to pay the debt (f). So forbearance for a reasonable time to sue an executor for the debt of his testator, although the executor have not assets (g); but the agreement by the executor to pay the debt must be in writing (h), otherwise it will be void by Stat. of Frauds, 29 Car. II. c. 3, s. 4. That a forbearance to sue may be a good consideration, such forbearance must either be absolute (i), or for a definite portion of time (k), or a reasonable time (1); forbearance for a little, or some time (m), is not sufficient. A forbearance for a given time on the part of the assignee of a bond to sue the obligor, is a good consideration for a promise by the obligor to pay the assignee at the expiration of that time, or to give him a warrant of attorney for the amount (n). In cases where an action is brought against a defendant, on a promise made in consideration of forbearance of suit, an objection will not be allowed, after verdict, that the declaration does not state

(b) Goring v. Goring, Yelv. 10, 11.
(c) Bailey v. Croft, 4 Taunt. 611.
(d) 1 Roll. Abr. 27, pl. 49; Tempson

v. Knowles, 7 C. B. 651; 18 L. J., C. P.
222.

(e) King v. Wilson, Str. 873.

(f) Bond v. Payne, Cro. Jac. 273.

(g) Johnson v. Whitchcott, 1 Roll. Abr. 24, pl. 33.

how the original debt accrued; for this is only inducement to the action (o). But it must appear that there is a debt actually due (p), or that an action had been actually commenced; Smith v. Monteith, 13 M. & W. 427 (for the law will intend that there is some foundation for it; Tempson v. Knowles, 7 C. B. 651; 18 L. J., C. P. 222, unless the contrary be pleaded; Wade v. Simeon, 2 C. B. 548), or that there were cross claims unsettled between the parties, although each party claimed the balance; Llewellyn v. Llewellyn, 3 D. & L. 318; 15 L. J., Q. B. 4; or that there were disputes relating not to the existence, but to the amount of the debt; Bridgman v. Dean, 7 Exch. 199, and see Smyth v. Holmes, 10 Jur., Exch. 862; and the declaration should state to whom the plaintiff forbore and gave day of payment (q), although the omission will, it seems, be cured by verdict (r).

The consideration of forbearance is not confined to forbearance from suing by action; for forbearance to sue, though the party is liable in equity only (s), or desisting from a suit in Chancery (t), or the giving up a suit instituted in the Admiralty Court, to try a question respecting which the law is doubtful (u), has been held to be a good consideration. So desisting from further complaint before a justice of the peace (x); so forbearing to proceed upon a capias utlagatum (y); so staying the trial of a cause after issue joined (z), is a good consideration for a promise to pay the costs incurred. Neither is it necessary to show a consideration equally extensive with the promise; for forbearance by the plaintiff, at the defendant's request, to enforce a fi. fa. against the goods of a third person for 607. is a valid consideration for defendant's promise to pay plaintiff 1077. in seven days (a). And where an action has been commenced for an unliquidated demand, payment by the defendant of a liquidated sum, is a good consideration for a promise by plaintiff to stay proceedings, and pay his own costs. Wilkinson v. Byers, 1 A. & E. 106.

In what Cases Forbearance of Suit is not a Consideration.Forbearance of suit against a defendant, where originally there was not any cause of action, is not a consideration to support an assumpsit. A. and B. were bound jointly and severally in a bond to C. who released A.; afterwards B., in consideration that C. would forbear to sue him for the payment of the money due on the bond, promised to pay it. On assumpsit brought, the court were

(0) Austen v. Bewley, Cro. Jac. 548.
(p) Edwards v. Baugh, 11 M. & W.

641.

(9) Jones v. Ashburnham, 4 East, 445.
(r) Marshall v. Birkenshaw, 1 N. R.
172.

(s) Scott v. Stephenson, 1 Lev. 71.
(t) Doudenay v. Oland, Cro. Eliz. 768.
(u) Longridge v. Dorville, 5 B. & Ald.

117.

(x) Rippon v. Norton, Cro. Eliz. 881. (y) Jennings v. Harley, Cro. Eliz. 909, and Yelv. 19.

(z) Dell v. Fereby, Cro. Eliz. 868; Crowther v. Farrer, 15 Q. B. 677; 20 L. J., Q. B. 298.

(a) Smith v. Algar, 1 B. & Ad. 603.