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 It follows, from the fore- in no (a) The recent cases leave no doubt on the subject. There being no promise im 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 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 voluntarily done that which the person pro- Proceeding in the order in which I stated to (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 Fivaz v. was upheld in the very recent 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. |