for saying that a party must, in such a case, know all the incidents of a fraud before he deprives himself of the right of rescinding: the proper and safe course is to repudiate the whole transaction at the time of discovering the fraud.1 Lastly, when the act which is the subject of the contract may, according to the circumstances, be lawful or unlawful, it will not be presumed that the contract was to do the unlawful act; the contrary is the proper inference. Thus, where an act is required to be done by a person, the omission of which would make him guilty of a criminal neglect of duty, the law presumes that he has duly performed it, and throws the burthen of proving the negative on the party who may be interested in doing so.3 *Having in the preceding pages directed attention to some leading points connected with the illegality of the considera- [*583] tion for a promise or agreement, and having selected from very many cases, those only which seemed peculiarly adapted to throw light upon the maxim, ex dolo malo non oritur actio, we may further pray in aid of the above very cursory remarks upon so copious and comprehensive a subject of inquiry, the observations already made upon the yet more general principle, that a man shall not be permitted to take advantage of his own wrong, and shall at once proceed to offer some remarks upon the necessity for a consideration generally where two parties enter into a contract, and upon the sufficiency and essential requisites thereof.

4

EX NUDO PACTO NON ORITUR ACTIO.

(Noy, Max., 24.)

No cause of action arises from a bare agreement.

5

Nudum pactum may be defined in the words of Ulpian, to be where nulla subest causa propter conventionem, i. e., where there is no consideration for the promise or undertaking of one of the con

1 Campbell v. Fleming, 1 Ad. & E. 40; E. C. L. R. 28.

2 Lewis v. Davison. 4 M. & W. 654;(*) 1 B. & Ald. 463; Judgment, Garrard v. Harday, 6 Scott, N. R. 477. See per Parke, B., Jackson v. Cobbin, 8 M. & W. 797;(*) Harrison v. Heathorn, 6 Scott, N. R. 735; 10 Rep. 56; C. 2, 21, 6.

3 Williams v. East India Company, 3 East, 192; cited, per Lord Ellenborough, C. J., 2 M. & S. 561; E. C. L. R. 28. 4 Ante, p. 209.

5 D. 2, 14, 7, ¿ 4; Plowd. 309, n; Vin. Abr. “Nudum Pactum," (A.) See 1 Powell, Contracts, 330 et seq. As to the doctrine of nudum pactum in the civil law, see Pillans v. Van Mierop, 3 Burr. 1670 et seq; 1 Fonb. Eq., 5th ed. 335(a).

tracting parties; and it is a fundamental principle in our system of law, that from such an agreement or undertaking no cause of action can arise. "A consideration of some sort or other is so absolutely necessary to the forming of a contract, that a nudum pactum, or agreement to do or pay anything on one side, without any compensation on the other, is totally void in law, and a man cannot be compelled to perform it." A valid and *sufficient consideration [*584] or recompense for making, or motive or inducement to make, the promise upon which a party is sought to be charged, is of the very essence of a simple contract. There must be, in the language of Pothier, une cause d'où naisse l'obligation, and without this no action can be maintained upon it. Accordingly, if one man promises to give another £100, there is no consideration moving from the promisee, and therefore there is nothing binding on the promisor.3 A gratuitous undertaking may indeed form the subject of a moral obligation,. and may be binding in honour, but it does not create a legal responsibility. Nor will a mere voluntary courtesy or service uphold an assumpsit, unless moved by a previous request. In these and similar cases the rule is, nuda pactio obligationem non parit.

We must, however, state, in limine, that where a promise is made under seal, the solemnity of that mode of delivery is held to import, at law, that there was a sufficient consideration for the promise, so that the plaintiff is not in this case required to prove such consideration; nor can the deed be impeached by merely showing that it was made without consideration, unless proof be given that it originated in fraud. Neither is a consideration necessary for the validity of a conveyance operating at common law; but, unless a use is expressly [*585] limited thereby, or it appears to be the intention of the grantor to part with the estate without a consideration, the use will result in his favour. If, however, such should not be the

1 Bla. Com. 445; Noy, Max., 9th ed. p. 348.

21 Pothier, Oblig. 5.

32 Bla. Com. 445; Vin. Abr. "Contract," (K.)

4 Judgment, 1 H. Bla. 327. But a gratuitous bailee will be liable for gross negligence, Coggs v. Bernard, 2 Ld. Raym. 909. See Elsee v. Gatward, 5 T. R. 143, 149. 5 Lampleigh v. Brathwait, Hob. R. 105; per Park, J., Reason v. Wirdman, 1 C. & P. 434; E. C. L. R. 12; Bartholomew v. Jackson, 20 Johns. R. (U. S.) 28. Physicians and counsel have no legal title to remuneration, unless an express agreement or actual contract be shown: Veitch v. Russell, 3 Q. B. 928; E. C. L. R. 43; where the authorities are cited.

6 D. 2, 14, 7, 8 4; C. 4, 65, 27; Brisson, ad verb. "Nudus."

72 Bla. Com. 16th ed. 446, n. (4). Per Parke, B., Wallis v. Day, 2 M. & W. 277.(*)

intention of the grantor, and yet an express limitation of the use should prevent the estate from resulting at law, there would still be in equity a resulting trust in his favour. Even in the case of a deed, moreover, it is necessary to observe the distinction between a good and a valuable consideration; the former is such as that of blood, or of natural love and affection, as when a man grants an estate to a near relation, being influenced by motives of generosity, prudence, and natural duty. Deeds made upon this consideration are looked upon by the law as merely voluntary, and, although good as between the parties, are frequently set aside in favour of creditors and bonâ fide purchasers.1 On the other hand, a valuable consideration is such as money, marriage, or the like; and this is esteemed by the law as an equivalent given for the grant, and makes the conveyance good as against a subsequent purchaser.

2

When, therefore, a question arises between one who has paid a valuable consideration for an estate, and one who has given nothing, it is a just presumption of law, that such voluntary conveyance, founded only on considerations of affection and regard, if coupled with a subsequent sale, was meant to defraud those who should afterwards become purchasers for a valuable consideration, it being, upon the whole, more fit that a voluntary grantee should be disappointed, than that a fair purchaser should be defrauded.3

[*586]

A consideration for a simple contract has been defined *thus:"Any act of the plaintiff from which the defendant derives a benefit or advantage, or any labour, detriment, or inconvenience sustained by the plaintiff, however small the benefit or inconvenience may be, is a sufficient consideration, if such act is performed, or such inconvenience suffered, by the plaintiff with the consent, either express or implied, of the defendant." And again, "Consideration means something which is of some value in the eye of the law moving from the plaintiff. It may be some benefit to the defendant or some detriment to the plaintiff, but, at all events, it must be moving from the plaintiff." For instance, where plaintiff

1 2 Bla. Com. 297, 444; per Lord Tenterden, C. J., Gully v. Bishop of Exeter, 10

B. & C. 606; E. C. L. R. 21. See Bac. Max., reg. 18.

2 2 Bla. Com. 297, 444; 10 B. & C. 606; E. C. L. R. 21.

3 Judgment, Doe d. Otley v. Manning, 9 East, 66, where the prior cases are fully considered. See 2 Q. B. 860; E. C. L. R. 42.

41 Selw., N. P., 10th ed. 41.

5 Per Patteson, J., Thomas v. Thomas, 2 Q. B. 859; E. C. L. R. 42; Price v. Easton, 4 B. & Ad. 433; E. C. L. R. 24; Edwards v. Baugh, 11 M. & W. 641;(*) Wade v.

stipulated to discharge A. from a portion of a debt due to himself, and to permit B. to stand in his place as to that portion, defendant stipulating, in return, that B. should give plaintiff a promissory note; the consideration moving from plaintiff, and being an undertaking detrimental to him, was held sufficient to sustain the promise by defendant. Where, however, A. being indebted to plaintiff in a certain amount, and B. being indebted to A. in another amount, the defendant, in consideration of being permitted by A. to sue B. in his name, promised to pay A.'s debt to the plaintiff, and A. gave such permission, whereupon defendant recovered from B., judgment was arrested, on the ground that plaintiff was a mere [*587] *stranger to the consideration for the promise made by defendant, having done nothing of trouble to himself or of benefit to the defendant.2

So, where in an action of assumpsit the consideration for the defendant's promise was stated to be the release and conveyance by the plaintiff of his interest in certain premises, at the defendant's request, but the declaration did not show that the plaintiff had any interest in the premises except a lien upon them, which was expressly reserved by him, the declaration was held bad, as disclosing no legal consideration for the alleged promise.3

In debt, for money had and received, &c., the defendant pleaded the execution and delivery to the plaintiff of a deed securing to the plaintiff a certain annuity, and acceptance of the same by the plaintiff in full satisfaction and discharge of the debt; replication, that no memorial of the annuity. deed had been enrolled pursuant to the statute; that the annuity being in arrear, the plaintiff brought an action to recover the amount of the arrears; that defendant pleaded in bar the non-enrolment of the memorial; and that plaintiff thereupon elected and agreed that the indenture should be null and void,

Simeon, 2 C. B. 548; E. C. L. R. 52; Llewellyn v. Llewellyn, 15 L. J., Q. B. 4; Clutterbuck v. Coffin, 4 Scott, N. R. 509; Crow v. Rogers, 1 Stra. 592; Lilly v. Hays, 5 Ad. & E. 548; E. C. L. R. 31; Galloway v. Jackson, 3 Scott, N. R. 753, 763; Thornton v. Jenyns, 1 Scott, N. R. 52; Jackson v. Cobbin, 8 M. & W. 790;(*) Cowper v. Green, 7 M. & W. 633;(*) 1 Roll. Abr. 23, pl. 29; Fisher v. Waltham, 4 Q. B. 889; E. C. L. R. 45.

1 Peate v. Dicken, 1 Cr., M. & R. 422; (*) Tipper v. Bicknell, 3 Bing., N. C. 710; E. C. L. R. 32; Harper v. Williams, 4 Q. B. 219; E. C. L. R. 45.

2 Bourne v. Mason, 1 Ventr. 6.

3 Kaye v. Dutton, 8 Scott, N. R. 495; recognising Edwards v. Baugh, 11 M. & W. 641.(*)

and discontinued the action. The replication was held to be a good answer to the plea, since it showed that the accord and satisfaction thereby set up had been rendered nugatory and unavailing by the defendant's own act.1

It will be evident from the cases just cited, and from the additional authorities referred to below and in the course of these remarks, that, in defining nudum pactum to be, *ubi nulla subest causa propter conventionem, the word causa must be taken to [*588] mean a consideration which confers that which the law regards as a benefit on the party; it must not be confounded with the motive which induces or disposes a person to enter into a contract.2

For instance, an agreement was entered into between plaintiff, who was the widow, and defendant and S. T., who were the executors of J. T., by which, after reciting that J. T. had verbally expressed his desire that plaintiff should have a certain house, &c. during her life, and reciting, also, that defendant and S. T. were desirous that such intention should be carried into effect: it was witnessed, that, "in consideration of such desire, and of the premises," the executors would convey the house, &c. to the plaintiff for her life; "provided nevertheless, and it is hereby further agreed and declared," that the plaintiff should, during her possession, pay to the executors 11. yearly towards the ground-rent, payable in respect of the said house and adjoining premises, and should keep the said house, &c., in repair: it was held, that the agreement so to pay, and to keep the premises in repair, was a consideration for the agreement by the defendant and S. T., and that respect for the wishes of the testator formed no part of the legal consideration for their agreement, and need not be stated in the declaration. This case, therefore, is illustrative of the position, that the motive which actuates a man is quite distinct from, and forms no part of, the legal consideration for his promise, and serves likewise to illustrate the remark of Pothier, who says, [*589] *La cause de l'engagement que contracte l'une des parties

1 Turner v. Browne, 3 C. B. 157; E. C. L. R. 54. See, also, Harris v. Watson, 1 Peake, 72; Stilk v. Meyrick, 2 Camp. 317, which also turned on the absence of consideration; Wade v. Simeon, 2 C. B. 548; E. C. L. R. 52.

2 Per Lord Denman, C. J., and Patteson, J., 2 Q. B. 859; E. C. L. R. 42; Id. 861 (a).

3 Thomas v. Thomas, 2 Q. B. 851; E. C. L. R. 42; possibly such an agreement as the above would be held to be a mere voluntary conveyance as against a subsequent purchaser for value. Per Patteson, J., Id. 860. See, also, per Coleridge, J., Id. 861.