who is bound thereby, or on his towards whom he has become bound; some result from the simple authority of law; others spring from a fact personal to the party who finds himself bound. The first are engagements formed involuntarily, such as those between neighbouring proprietors, and those of guardians and other administrators, who are not at liberty to refuse the functions cast upon them. The engagements which spring from a fact personal to him who finds himself bound, result either from quasi contracts, or from quasi crimes. Quasi contracts are the purely voluntary acts of the parties, from which result any engagements whatsoever towards a third person, and sometimes a reciprocal engagement of two parties. When a person voluntarily manages the affairs of others, whether the proprietor is aware of such management, or whether he is ignorant of it, he who so manages contracts a tacit engagement to continue the management which he has begun, and to complete it until the proprietor shall be in condition to provide for it himself: he must himself take the charge in like manner of all the dependences of the same affairs (p). He subjects himself to all the obligations which would result from an express commission given him by the proprietor (q)." 2ndly. Of the Consideration.-A valid and sufficient consideration or recompence for making, or motive or inducement to make the promise upon which a party is charged, is of the very essence of a contract not under seal, at law and in equity; and must exist, although the contract be reduced into writing: otherwise the promise is void, and no action can be maintained thereon (r). Ex nudo pacto non oritur actio. The earliest records of our law show that this maxim was always recognized in this country (s). This principle is not peculiar to English law. It (p) Perhaps our law would not imply a promise fully to this extent; but there would be a liability if by gross neglect or misconduct in the course of an employment voluntarily undertaken, and in part performed, an injury resulted to the party for whom the business was so undertaken, see post, 38, 39, and Index, tit. Bailees. (9) French Civil Code, book 3, tit. 4. (r) Noy's Max. 21; Sharington v. Strotton, Plowd. C. S02, 305, 309; Dyer, 90 b; Dr. & Stud. 2, c. 24; Rann v. Hughes, in error, 7 Term R. 350, n. (a); 7 Bro. P. C. 550, S. C.; 1 Fonbl. Tr. Eq. 5th ed. 335, n. (a); Barrell v. Trussell, 4 Taunt. 117. "A bargain without a consideration is a contradiction in terms, and cannot exist;" per Lord Loughborough, in Middleton v. Lord Kenyon, 2 Ves. jun. 188. (s) See 11 Hen. 4, 33, 23 a; 17 Ed. 4, 4; 3 Hen. 6, 36; Bro. Action sur le Case, 40. obtained, generally speaking, in the civil law; and indeed we have borrowed from the Roman jurists the term nudum pactum, as applied to promises without consideration (t). It is equally a maxim in the French law that a consideration or cause is essential to the validity of a promise (u). A gratuitous undertaking may form the subject of a moral obligation,-it may be binding in honour,—but does not create a legal responsibility. It is not unreasonable to assume that it was entered into improvidently: nor can the party who has received such promise have sustained any serious injury from the neglect to observe it. The law cannot reasonably be expected to enforce an imperfect obligation of this nature. It has afforded to parties the means of rendering even a gratuitous engagement binding, viz. by the execution of a deed which imports deliberation; an exception which was probably permitted by analogy to the Roman Stipulations, which were promises made in a certain prescribed form, and, it seems, under magisterial sanction, or ratified before official authority, and were binding, though without consideration. The rule as applied to simple contracts, seems to be almost without exception in the English law. It has, indeed, been supposed, though never formally decided, that written agreements, and mercantile contracts between mercantile men, need no consideration (r); but this doctrine has been entirely and deservedly exploded (y). Even in the case of bills of exchange and promissory notes, it is not true, as might be supposed from the position in Blackstone's Commentaries (z), that a consideration is not necessary to give them effect. The general rule is, that a consideration is essential, even in the instance of such instruments, although the legislature and our courts have ever evinced the most anxious desire to encourage and facilitate their circulation. When an action upon a bill or note is between the immediate parties thereto, as between the drawer and acceptor of the bill, or the payee and maker of the note, or between the indorser and his indorsee of either of those documents, the consideration may be inquired into; and if it be proved that the plaintiff gave, and (t) 2 Bla. C. 445. Nudum pactum est ubi nulla subest causa præter conventionem. (u)" L'obligation sans cause, ou sur une fausse cause, ou sur cause illicite, ne peut avoir aucun effet." French Code Civil (1804), book 3, tit. 3, s. 4. See 1 Pothier, Tr. on Obl. p. 1, c. 1, s. 1, art. 3, s. 4. (r) See per the Judges, in Pillans v. Mierop, 3 Burr. 1663. (y) Ante, 4, 5. (z) 3 Bla. C. 445, 446. the defendant received no value, the action shall fail. The only material exceptions are,-1st, that if the plaintiff be a distant indorsee of the bill or note, and took it for value, it is of no avail. to the defendant to show that there was no consideration between himself and the third party who received the bill from him (the defendant): in such case the want of consideration between the original parties is immaterial; and 2ndly, that even between the immediate parties, it shall be presumed (a) that there was a good consideration; whereas, in general, in an action upon a simple contract, the plaintiff must allege and prove consideration (b). It is hardly necessary to observe, that if the consideration be illegal the contract will be void. It is not proposed at present to treat of illegal considerations, but merely to point out what considerations are in law deemed sufficient, presuming they embrace no illegal object. We may premise, that considerations, as they relate to deeds, are in general divided into good and valuable considerations. "A good consideration," says Blackstone (c), in speaking of a consideration for a deed or grant, "is such as that of blood, or of natural love and affection, when a man grants an estate to a near relation; being founded on motives of generosity, prudence, and natural duty. A valuable consideration is such as money, marriage (d), or the like, which the law esteems an equivalent given for the grant; and is therefore founded in motives of justice." The former will not in general hold against creditors, if calculated to defraud them; the latter cannot in general be impeached (e). The distinction between a good and valuable consideration is this,-that a good consideration makes the instrument (a deed of conveyance, &c.) good as between the parties; but a valuable consideration makes the conveyance good against a subsequent purchaser (f). We must, however, observe, that the term good consideration, as thus applied to deeds, does not hold in relation to simple contracts, to support which relationship, natural love and affection will not be a sufficient consideration (g). (a) See per Abbott, C. J., Holliday v. Atkinson, 5 B. & C. 503; 8 D. & R. 165, S. C. (b) Bayley on Bills, 5th ed. 499; Chitty on Bills, 8th ed. 79, 90; Roscoe, 111, 123. As to the effect of stating an apparently defective consideration in a note, Ridout v. Bristow, 1 C. & J. 231. (c) 2 Bla. C. 297. See Gully v. Bishop of Exeter, 10 B. & C. 606, &c. (d) Ambl. 340; 1 Atk. 153; 1 Swanst. 319; 17 Ves. 271. (e) 2 Bla. C. 444; ante, 6, and note (u). (f) Per Tenterden, C. J., in Gully v. Bishop of Exeter, 10 B. & C. 606. (g) Post, 51, 52. "Valuable considerations are divided by the civilians into four species. 1st. Do, ut des: as when I give money or goods on contract that I shall be repaid money or goods for them again. Of this kind are all loans of money upon bond, or promise of repayment; and all sales of goods in which there is either an express contract to pay so much for them, or else the law implies a contract to pay so much as they are worth. 2nd. The second species is facio ut facias; as when I agree with a man to do his work for him, if he will do mine for me; or if two persons agree to marry together, or to do any other positive acts on both sides. Or it may be to forbear on one side, on consideration of something done on the other; as, that in consideration the tenant will repair his house, B., the landlord, will not sue him for waste. Or it may be for mutual forbearance on both sides; as, that in consideration that A. will not trade to Lisbon, B. will not trade to Marseilles; so as to avoid interfering with each other. 3rd. The third species of consideration is facio ut des: when a man agrees to perform any thing for a price, either specifically mentioned, or left to the determination of the law to set a value to it. And when a servant hires himself to his master for certain wages, or an agreed sum of money, here the servant contracts to do his master's service, in order to earn that specific sum. Otherwise, if he be hired generally, for then he is under an implied contract to perform this service for what it shall be reasonably worth. 4th. The fourth species is do ut facias, which is the direct counterpart of the preceding. As when I agree with a servant to give him such wages upon his performing such work, which, we see, is nothing else but the last species inverted; for servus facit ut herus det, and herus dat ut servus faciat (h)." The main rule, in regard to the sufficiency of the consideration, seems to be, that it may arise either-1st, by reason of a benefit resulting to the party promising, or, at his request, to a third person, by the act of the promisee; 2ndly, on occasion of the latter sustaining any loss or inconvenience, or subjecting himself to any charge or obligation, at the instance of the person making the promise, although such person obtain no advantage therefrom (i). (h) 2 Bla. Com. 444, 445. (i) See Com. Dig. Action upon the Case upon Assumpsit, (B) 1; per Yates, J., in Pillans v. Mierop, 3 Burr. 1673; per Lord Ellenborough, in Bunn v. Guy, 4 East, 193; and in Jones v. Ashburnham, id. 463, 464; per Best, C. J., Morley v. Boothby, 3 Before we proceed to illustrate this general rule by referring to particular instances, it may be judicious to give some general explanation of its different branches. In the first place, in reference to the benefit conferred on the promiser sought to be charged, we may observe that it is not essential that the consideration should be adequate in point of actual value, the law having no means of deciding upon this matter; and it would be unwise to interfere with the facility of contracting, and the free exercise of the judgment and will of the parties, by not allowing them to be sole judges of the benefits to be derived from their bargains; provided there be no incompetency to contract, and the agreement violate no rule of law. It is sufficient that a slight benefit be conferred by the plaintiff on the defendant, or at his request upon a third person (i), or even that a benefit may arise to the party promising (k). Even in equity, although a consideration be necessary, in the case of an agreement not under seal, inadequacy of consideration or value is in general, of itself, no ground for impeaching a contract; whether such contract relate to the sale of an estate (1), or an annuity (m), or any other subject (n). And inequality of consideration upon entering into an agreement for the compromise or abandonment of a doubtful right, will not defeat the contract (o). But if the folly of the contract be extremely gross, this circumstance will tend, if there be other facts in corroboration, to establish a case for relief on the ground of fraud; but mere folly and weakness, or want of judgment, will not defeat a contract even in equity (p). An action was brought in special assumpsit, on an agreement to pay for a horse a barley corn a nail, for every nail in the horse's shoes, and double every nail, which came, there being thirty-two nails, to five hundred quarters of barley; and on a trial before Hyde, J., the jury under his di Bing. 112, 113; per Tindal, C. J., (i) See id, and Hitchcock v. Coker, 6 Ad. & E. 456; per Lord Ellenborough in Phillips v. Bateman, 16 East, $72, and the cases cited post. (k) Kirwan v. Kirwan, 2 C. & M. 623; 4 Tyr. 491, S. C. (1) Cole v. Trecothick, 9 Ves. jun. 246; 1 Smith, 233, S. C.; Western v. Russell, 3 V. & B. 187; Darley v. Singleton, Wightw. 29; Murray v. Palmer, 2 Sch. & Lef. 488; Griffith v. Spratley, 1 Cox, 383. (m) Floyer v. Shearard, Ambl. 18; Vernon v. Winstanley, 2 Sch. & Lef. 395; Low v. Barchard, 3 Ves. 133; Speed v. Phillips, 3 Anst. 732. (n) See 1 Edward Chitty's Eq. Index, Consideration, 2; 1 Bridg. Eq. D. 359; 10 Ves. 292, 295. (0) 1 Ball & Beatty, 31. Adequacy of consideration when material at law, is a question for the court; per Best, C. J., Horne v. Ashford, 3 Bing. 327. (p) Milnes v. Cowley, 8 Price, 620; Prebble v. Boghurst, 1 Swanst. 329. |