a consideration or inducement for the defendant's remaining two years in her service, it was a nudum pactum; and that no action, consequently, could be brought upon it against the defendant for leaving her mistress, and commencing business on her own account before the expiration of the two years. (t)

So, where the written agreement was in the following terms, "Memorandum of an agreement made the 17th of August, 1833, by which I, William Bradley, of Sheffield, do agree that I will work for and with John Sykes, of Sheffield aforesaid, manufacturer of powder-flasks and other articles, at and in such work as he shall order and direct, and no other person whatsoever, from this day henceforth, during and until the expiration of twelve months, and so on from twelve months' end to twelve months' end, until I shall give the said John Sykes twelve months' notice in writing that I shall quit his service," it was held, that as this engagement was entirely unilateral, and nothing was to be given or done by John Sykes as a consideration for Bradley's promise to work for him by the year and no one else, the agreement was a nudum pactum, and could not be enforced. (u) So where the defendant signed the following instrument, Mr. James

as you have a claim on my brother for 5l. 17s. 9d., for boots and shoes, I hereby undertake to pay the amount within six weeks from this date, 14th January, 1833," it was held, that the promise being without consideration, was a nudum pactum, and gave no cause of action. (x)

And so with regard to bills of exchange and promissory notes, there must be a consideration to support them and give them legal validity, or they cannot be enforced by compulsion of law. (y) Inasmuch, however, as these instruments are negotiable, and the right of action upon them transferable from one person to another, the absence of an original consideration is perfectly immaterial when the bill or note has been negotiated, and the interests of third parties are involved in its efficacy. If there is consideration as between the immediate parties suing and being sued, that is sufficient to support the action. When a negotiable note, or a bill of exchange, for example, has come into the hands of a third person, who has given value for the instrument bona fide, and without notice of the want of consideration for originally giving or indorsing it, such want of consideration cannot be set up as a defence by the maker of the note or the acceptor of the bill, to the action by the indorsee or other bonâ fide

(t) Lees v. Whitcomb, 2 M. & P. 86; 5 Bing. 34. s. c.

(u) Sykes v. Dixon, 9 Ad. & E. 693; 1 P. & D. 463, s. c.; Bates v Cort, 3 D. & R. 676.

(x) James v. Williams, 5 B. & Ad. 1109; 2 Dowl. P. C. 481. s. c.

(y) Carstairs v. Rolleston, 5 Taunt. 553; Holliday v. Atkinson, 8 D. & R. 163; 5 B. & C. 503,

S. C.

holder. It is essential to the negotiability of such commercial instruments that the bona fide holder should not be bound to inquire into the original consideration. If he has advanced his money, or parted with property on the credit of the bill, or on the faith of the written promise, and has sustained damage and loss by reason thereof, there is a consideration moving from him capable of sustaining his action, although there may have been no consideration originally for the making or the giving of the instrument.

SECTION II.

WHAT AMOUNTS TO A VALID CONSIDERATION IN THE EYE OF THE LAW.

By the civil law, if any one agreed to perform or effect anything, (whether that consisted in giving or doing something, or omitting or withholding something,) hoc animo that another in his turn should do something, or give or deliver something, or vice versa, the person in whose favour the thing executed was delivered or done, was not permitted to be deficient in performing what was stipulated on his part, but was compelled to performance, so that if there was a cause or consideration facti vel traditionis, a corresponding obligation or duty arose. And so, by the common law of England, if anything is performed which the party is under no legal obligation to perform, or if anything is given or done, as the consideration or inducement for the promise whereby the promisor or party making the promise has obtained or secured for himself some benefit or advantage, or whereby the promisee or party to whom the promise has been made has sustained some trouble or loss, or suffered some injury or inconvenience, there is a sufficient consideration to render the promise obligatory in law, and capable of sustaining an action.

Works and services.-Thus, where the defendant, in consideration that the plaintiff, at the request of the defendant, would give up to the defendant a certain letter belonging to the plaintiff, for the purpose of enabling the defendant to prosecute certain claims in Portugal, promised the plaintiff to give him 1,0007., and the plaintiff confiding in this promise, gave up the letter, and enabled the defendant by means thereof to recover a large sum of money, it was held that the service so rendered to the defendant by the plaintiff was a sufficient consideration for the promise, and that the plain

tiff, consequently, was entitled to recover the 1,0007.; (a) and the mere surrender and delivery of a letter or other written document, which the party has a right to keep and retain in his possession, is a sufficient consideration for the promise, although the possession of it may turn out eventually to be of no value in a pecuniary point of view, or no benefit may have resulted to the one party, nor prejudice to the other, from the surrender and delivery of the document. "If the plaintiff has been induced by the defendant's promise to part with something which he might have kept, and the defendant obtained what he desired by means of that promise, both being free and able to judge for themselves, the defendant is not justified in breaking this promise by discovering afterwards that the thing in consideration of which he gave it, did not possess that value which he supposed to belong to it. It cannot be ascertained that that value was what he most regarded, he may have had other objects and motives; and of their weight he was the best and only judge." "The actual surrender of the possession of the paper to the defendant is a sufficient consideration, without reference to its contents." (b)

66

"A consideration of loss or inconvenience," observes Lord Ellenborough, sustained by one party at the request of another, is as good a consideration in law for a promise by such other, as a consideration of profit or convenience to himself." (c)

"It is sufficient if there be any damage or detriment to the plaintiff, though no actual benefit accrue to the party undertaking. (d) If the plaintiff has become security for the promisor, or has accepted bills, or imposed upon himself any legal liability at the request of the latter, there is a sufficient consideration to support a promise and render it binding in law, although no actual benefit or advantage has resulted to the promisor. (e) Any trouble or labour too, however slight, undertaken by the plaintiff, at the request of the defendant, will support a promise by the latter, and render it binding, although such trouble and labour may have been unsuccessful and productive of no benefit or advantage to the plaintiff. (ƒ)

In an action of assumpsit, it appeared that the defendant had offered a reward to whoever would give such information as would lead to the con

(a) Wilkinson v. Oliveira, 1 Bing. N. S. 490; 1 Scott, 461. s. c.

(b) Denman, C. J., Haigh v. Brooks, 10 Ad. & E. 320; Lord Abinger, s. c. in error, ib. 334; 2 P. & D. 477; 4 P. & D. 288. s. c.; Thomas v. Thomas, 2 Gale & Dav. 226.

(c) Bunn v. Guy, 4 East, 194; Buller, J., Nerot v. Wallace, 3 T. R. 24.

(d) Le Blanc, J., Jones v. Ashburnham, 4 East, 466.

(e) Ikin v. Brook, 1 B. & Ad. 124; Bailey v. Croft, 4 Taunt. 611; Williamson v. Clements, 1 Taunt. 523; Clutterbuck v. Coffin, 4 Sc. N. R. 509; Jones v. Waite, 5 Sc. N. R. 951.

(f) Sturbyn v. Albany, Cro. Eliz. 67; March v. Culpepper, Cro. Car. 70.

viction of a felon, that the plaintiff had procured and given the required information, and had then sued the defendant upon his promise; and it was held that the service so rendered was a sufficient consideration for the promise, and that the plaintiff was entitled to recover the reward offered, although he was a constable and police officer of the district where the felony was committed, and it was his duty as such constable to do his utmost to discover and apprehend felons. (g)

Work and services rendered to a third party at the request of the promisor.-Any service, benefit, or advantage, also rendered to a third person at the request of the promisor, is a sufficient consideration for the promise. As if one person should say to another, "heal such a poor man of his disease," or "make an highway," and I will give thee so much, and he doeth it, an action lieth at the common law. (h) A captain of a company of foot soldiers, at the request of the defendant, gave leave of absence to a soldier on the faith of a promise by the defendant that the soldier should return in ten days, or that the defendant would pay the captain 207., and it was held that the leave of absence so given was a sufficient consideration for the defendant's promise, and that the captain, consequently, was entitled to maintain an action for a breach thereof. (i) So where the defendant promised the plaintiff to pay him 1007. if the plaintiff would bail the defendant's servant, who had been cast into prison, it was holden that there was a sufficient consideration for the promise. (k)

Very slight circumstances also will in certain cases suffice to establish a request in point of law.

If a tailor furnishes clothes to a boy at school, and the father sees the clothes on the boy's return home, and makes no objection to the tailor, this is sufficient to warrant a jury in finding that there was an implied authority from the father to the tailor to furnish the son with clothes. (7) The father of an illegimate child promised to pay the mother an allowance of 607. a year during her life, in consideration that the mother had at his request undertaken, and then had the care and nurture of the child, and would thenceforth continue to take charge thereof; and it was held that there was a sufficient consideration for the promise, and that the executors of the father, after the decease of the latter, were bound to continue the payment of 607. a year to the mother. (m)

A bygone act or service (n) performed or rendered pursuant to the previous request of the promisor, will be sufficient to sustain an action.

(g) England v. Davidson, 11 Ad. & E. 856.

(k) 1 Rolle Abr Action sur Case. (1) Taylor v. Jones, 1 Raym. 312.

(k) Hunt v. Bate, Dyer, 272 a.

(1) Law v. Wilkin, 6 Ad. & E. 718.
(m) Jennings v. Brown, 9 M. & W. 496.
(n) Ante, p. 23; 1 Wms. Saund. 264. 264 a.

Thus, where the plaintiff brought his action upon a promise made by the defendant to pay the plaintiff 201. in consideration that the plaintiff, at the special instance of the defendant, had taken to wife the cousin of the defendant, it was holden that the action was maintainable, although the marriage was executed and past before the undertaking and promise were made, because the marriage ensued at the request of the defendant. (0) So, where the plaintiff having feloniously slain one Patrick Mahume, "required" the defendant to endeavour to obtain a pardon for him from the king, and the defendant journied and laboured, at his own charges and by every means in his power, to effect the desired object, and the defendant afterwards, in consideration of the premises, promised to give the plaintiff 1007., it was held that although the consideration was passed and gone before the promise was made, yet inasmuch as the consideration was moved by the previous suit or request of the party," the promise was binding and capable of sustaining an action. (p) But the thing done must of course have been advantageous to the defendant, or detrimental or troublesome or inconvenient to the plaintiff, and must be such an act or service as the law recognises as a good legal consideration for a promise. (q)

And if the defendant has accepted and retains the benefit or advantage of the consideration, the law will imply a request where none exists in point of fact. Thus, if a man pays a sum of money, or buys goods for me without my knowledge or request, and afterwards I agree to the payment or receive the goods, this subsequent assent is equivalent to a previous request, in accordance with the ancient maxim of the civil law, omnis ratihabitio retrotrahitur et mandato æquiparatur. In such a case it must be stated upon the face of the plaintiff's declaration," that the money was paid and laid out for me at my special instance and request, and my subsequent conduct in agreeing to it will be evidence of that request." (r)

A request too is frequently implied by law for the purpose of enabling a man to enforce an express promise founded upon a meritorious claim not amounting to a strict legal right. If a man, for example, clothes, feeds, and educates an infant during his infancy, and the latter after he comes of age makes an express promise to his benefactor to pay him a certain sum of money in consideration of the benefits so rendered, the law

(0) Dyer, 272 (b).

(p) Lampleigh v. Braithwaite, Hob. 105; Smith's Leading Cases, 67, 68; Sidnam v. Worthington, Cro. Eliz. 42; Harris's case, Dyer, 272 a. n. 31.

(q) Kaye v. Dutton, 13 Law, J. Rep. N. s. (C. P.) 187.

(r) 1 Saund. 264. n. 1; Tindal, C. J., Tipper v. Bicknell, 4 Scott, 462; 3 Bing. N. s. 715. See post. ch. 7, as to implications of law.