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General rule deduced from

the cases.

Moral considerations are nothing.

even if there be an express promise, any request can be implied in order to support the consideration. On this question, which is but a branch of one which has been often the subject of anxious consideration, namely, in what cases a moral obligation is a sufficient consideration to support a promise, you may see Lee v. Muggeridge, 5 Taunt. 36., Atkins v. Banwell, 2 East, 505., the note to Wennall v. Adney, 2 B. & P. 250., Eastwood v. Kenyon, 11 A. & E. 438. (a)

Bate (see antè) implies that
a request would have suf-
ficed; and in Lampleigh v.
Brathwaite it is laid down,
in express terms, that "if a
voluntary courtesy be moved
by a suit on request of the
party that gives the assumpsit,
it will bind: for the promise
that follows is not naked, but
couples itself with the suit
before and the merits pro-
cured by that suit."

It follows, from the fore-
going cases, that where the
consideration is executed, an
express promise without an
express previous request is

in no
case of avail; - and
where it is preceded by an
express request, then only
where the law implies no
other promise.

(a) The recent cases leave no doubt on the subject. There being no promise im

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I shall say no more upon the subject of executed and executory considerations, a subject upon which I almost regret having entered; for the distinctions on which I have been forced to touch are so nice, and so hard to be conveyed in the rapid and cursory suggestion of a lecture, that I fear there may be some among my audience to

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." Lord DENMAN C. J. thus explains, in Eastwood v. Kenyon, the broad principle upon which this doctrine is upheld, in one of those great judgments which characterise our courts of common law : "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

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debts: suits would thereby be multiplied, and voluntary undertakings would also be multiplied to the prejudice of real creditors. The temptations of executors would be much increased by the prevalence of such a doctrine, and the faithful discharge of their duty be rendered more difficult."

In Monckman v. Shepherdson, 11 Ad. & Ell. 415., the same doctrine was applied, and it was there held that even where a good consideration had existed and had been forfeited, it could not be revived by a parol promise founded on a moral obligation. See also Beaumont v. Reeve, 15 Law Journ. Q. B. 141., where these cases are cited as settled law; and the decision in Lee v. Muggeridge, 5 Taunt. 36., must be considered as overruled. (See post, p. 122, note a.)

whom I may not have succeeded in rendering all that I have said upon that part of the subject intelligible. I should have left the subject incomplete had I not touched upon them, and that was the reason which induced me to do so. I have now said what I intended to say with regard to the sufficiency of the consideration, and the result may be thus summed up.

Any advantage to the person promising, or damage, inconvenience, liability, or charge to the person to whom the promise is made, constitutes a sufficient consideration to uphold a promise; but, if that consideration be executed, that is, if, at the time of making the promise, that which is to be the consideration for it has already taken place, in such case there must have been a request by the person promising, in order to render such a consideration sufficient. If an express request can be shewn, there can be no difficulty; but, if not, the law will imply one in certain cases, and those cases are,

1st. Where the consideration consists in the person to whom the promise is made being compelled to do that which the person making it ought to have done, and was compellable to do.

2dly. Where the consideration consists in something the benefit of which the person promising has accepted and enjoyed. 3dly. Where the consideration consists in the person to whom the promise is made having

Illegal
Contracts.

voluntarily done that which the person pro-
mising ought to have done, and was com-
pellable to do (and in this third case the
promise must be an express one, whereas
in the two former, the law implies it as
well as the request.) Lastly, the case which,
as I have said, is even now doubtful, and
which depends on the question whether the
voluntary performance of that to which a
man was morally though not legally obliged,
be of itself sufficient to support an express
promise by him to remunerate the party
performing it." (a)

Proceeding in the order in which I stated to
you that it was my intention to proceed, the
next subject at which we arrive is, the effect of
illegality upon the contract. And, upon this
subject, I have already said generally, that every
contract, be it by deed or be it without deed, is
void if it stipulate for the performance of an ille-
gal act, or if it be founded upon an illegal con-
sideration. Ex turpi causâ non oritur actio is
the maxim of ours, as well as of the civil law. (b)

(a) See antè, p. 117. n. a. (b) It is immaterial whether the illegality be part of or only introductory to the cause of action; if the plainfrom an illegal tiff requires any aid from an

Aid derived

contract avoids a subsequent

one.

illegal transaction to make
out his case, he cannot main-
tain it. (Simpson v. Bloss,
7 Taunt. 246.) This rule

Fivaz v.

was upheld in the very recent
case of Fivaz v. Nicholls, Nicholls-
15 Law Journ., 125. C. P.,
where the plaintiff brought
an action on the case against
the defendant for having cor-
ruptly conspired to cheat the
plaintiff and deprive him of
his costs in a previous action
a bill of exchange, in

on

A deed, for the purpose of charging the maker, requires, as we have seen, no consideration at all to support it; but an illegal consideration is worse than none, and if it be founded upon such a one, it will be void, nor will the rules relating to estoppel prevent the party from setting that defence up. A simple contract requires, as we have seen, a consideration to support it. If the consideration be illegal, it is à fortiori void, nor will rules which I endeavoured to explain regarding the inadmissibility of parol evidence to contradict a writing prevent that defence from being set up where the illegality does not appear on the face of the instrument, any more than the doctrine of estoppel will avail to prevent enquiry into the true consideration for a deed. Parties cannot deceive the law by the form of their contracts; and, as an illegality in the consideration is fatal, so, and upon the very same grounds, is one in the promise. "You shall not," says the L. C. J. in Collins v. Blantern, "stipulate for iniquity."

If the consideration be legal, a promise to do several acts, some illegal and some legal, renders the contract valid quoad the legal acts;

which the plaintiff obtained judgment on the ground that it was given for an illegal consideration; but it having appeared that the bill had been originally indorsed by

but if

the plaintiff to the defendant to compromise a felony, this illegality being the foundation of the subsequent action, was held to invalidate it.

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