Brothers concurred with him, that in this case there was not a sufficient consideration to support this demand, as a personal demand against the defendant, and that its being now supposed to have been in writing makes no difference. The consequence of which is, that the question put to us must be answered in the negative."

The same rule also applies to promissory notes and bills of exchange, as well as to all other contracts in writing without seal. This rule, however, extends only to the immediate parties to a bill or note, and does not affect third persons, who happen to be strangers to the want of consideration as between those parties. For instance, if an action be brought upon a note or bill, at the suit of the payee against the drawer, or, by the indorsee against the indorser, for which no consideration was given, the plaintiff, in either case, cannot recover. But the want of consideration, as between the maker and payee of a note or bill, cannot be set up in an action against either of them at the suit of an indorsee, unless it be proved that he was acquainted with this circumstance at the time of taking the note or bill. (g) And the reason why third persons ought not to be affected by this rule is, that bills and notes being negotiable instruments, by mere indorsement and delivery, it would be enabling the original parties to assist in a fraud, if they were to be allowed to set up the want of consideration, as between themselves, in bar to an action against either of them, at the suit of an indorsee for a valuable consideration. And Lord Mansfield is reported to have said, that "in commercial cases amongst merchants, the want of consideration is not an objection.” (h) But this observation, it is apprehended, must be understood to apply only to cases of bills and notes when in the hands of an indorsee; for in all other contracts and agreements, not under seal, whether mercantile or otherwise, a consideration is absolutely necessary. Indeed, a bargain without a consideration is said to be a contradiction in terms, and cannot exist. (i) I now proceed to show what consideration will support a contract or promise. It is a settled rule of law, that to make a contract or agreement obligatory, the consideration must be either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made; otherwise the contract or agreement is considered as nudum pactum, and cannot be enforced. (k) Thus, a promise in consideration of the forbearance of a suit for a certain time, is good; for that is for the benefit of the defendant, though the action is not discharged. (1) But, a promise in consideration of forbearance is not valid where there was originally

(g) Vide Bayley on Bills, 121. 2d edit. Chitty on Bills, 12. 88. 5th edit.

(h) 5 Burr. 1669.

(i) Per Lord Loughborough, 2 Ves. jun.

(k) Com. Dig. tit. Action on the Case upon Assumpsit, B. 1.

(1) Cro. El. 387.

no cause of action; as, in consideration of forbearance of a suit upon a contract made by a married woman. (m) A promise in consideration of surceasing of a suit is good; for that is a benefit to the defendant, and a prejudice to the plaintiff, though the action is not discharged. (n) So, in consideration of the discharge of a debt, or the delivery of a bond, or other security. (o) Or, in consideration of the proof of a debt, for it is a charge to the plaintiff; as, if an executor promise, in consideration of the proof of the delivery of goods to his testator, to pay for them. (p) So if the parties agree to a particular manner of trial of the validity of a debt, it shall be determined in such manner. (q)

So, in consideration of any particular service or labour by the party to whom the promise is made; as, to procure the enjoyment of a house (r); or to procure a note, &c. from the debtor of the party promising. (s) Or, in consideration that the plaintiff would act for the defendant as a commissioner to examine witnesses. (t) Or, in consideration of permission to do an act; as, to permit a wife to take out administration durante minori ætate of her son; for it does not belong to her. (u) Or, in consideration of leave of absence from a regiment for a reasonable time. (x)

So, in consideration of any other act, by which the defendant has benefit; as, in consideration that the plaintiff would deliver to the defendant certain goods, in which the plaintiff had only a special property; for the defendant has a benefit by the present possession. (y) Or, in consideration of the release of an equity of redemption. (z) Or, a promise in consideration of the assignment of an uncertain debt. (a) Or, to accept a bill in consideration of the acceptance of another of equal amount. (b)

So, in consideration of marriage; as, upon a communication of a marriage, a cousin of the husband promises the wife to give her 100%. if the husband's father does not assure such land. (c) So, a discharge of a promise of marriage by a woman to a man is a good consideration. (d) So, in consideration of the voluntary performance of an act, which the plaintiff was compellable to perform; as, if the plaintiff will discharge a debt, for which he and the defendant are sureties, the defendant will repay the moiety. (e) Or, a promise to cancel a bond in consideration that the obligee will pay the single sum due upon it. (f) A promise for

promise is a good consideration; as, in consideration of a reciprocal promise of marriage. Thus, in the case of Hebden v. Rutter, (g) the plaintiff declared, that in consideration that she promised to marry the defendant, the defendant promised to marry the plaintiff; and averred that the plaintiff requested the defendant to marry, but the defendant refused, &c. To this declaration the defendant demurred: and it was said, that there was not any consideration; for marriage is a matter merely spiritual, and no ground for assumpsit at common law. Sed per curiam," the declaration and consideration in this case are good; for marriage is a preferment, and the loss of it is a temporal loss." So, where one Nichols brought an action of assumpsit against Raynbred, declaring that in consideration, that Nichols promised to deliver to Raynbred a cow, Raynbred promised to deliver him 50s. This was adjudged a sufficient consideration, it being promise for promise. (h) But it is said, (i) that mutual promises must be made at the same time, otherwise they will be nuda pacta.

We have before seen (k) that a consideration of some sort or other is so absolutely necessary to the forming of a contract, that a nudum pactum or agreement to pay any thing on one side, without any compensation on the other, is actually void in law, and a man cannot legally be compelled to perform it. Therefore if a man gratuitously, or in consideration of natural affection or of friendship, promises another to give him a sum of money on a day to come, this is nudum pactum, and cannot be enforced at law: for though a gratuitous undertaking, seriously made, is certainly sufficient, to form the basis of a moral and honorary obligation, and ought not to be receded from without some adequate reason, yet, a person making such a promise does not thereby intend to subject himself to legal responsibility; and the object of the law is rather to give effect to contracts founded upon the mutual exigences of society, than to compel the execution of a voluntary engagement of mere donation. So, if one buy goods for money, and no money be paid, nor earnest given, nor day set for payment, nor the goods, or any part of them, delivered; here no action lies for the money, or the goods sold, but the owner may sell them to another if he will; there being no consideration, but a mere agreement to buy. (4) Again, where A. having proposed to sell goods to B. gave him a certain time at his request to determine whether he would buy them or not; B. within the time determined to buy them, and gave notice thereof to A.; yet it was holden that A. was not liable to an action for not delivering them; for B. not being bound by the original contract, there was no consideration to bind A. (m) Or, where a carpenter had undertaken to build a house, and

(g) 1 Sid. 180.

(h) Hob. 88. See also Cro. El. 543. 703. 1 Wils. 88. S. P.

(i) Hob. 88.

(k) Ante, 8.

(1) Dy. 50. a. Shep. Touch. 224.
(m) 3 Term Rep.655.

for the not doing it, the party brought an action against the carpenter, but because it did not appear that he was to have any thing for building the house, it was adjudged that the action would not lie. (n)

So, if the consideration be not beneficial to the party promising, nor any trouble or prejudice to the party to whom the promise is made, it is not good: as, if a promise be made by an executor, or an heir at law who has no assets, in consideration of forbearance, to pay the debt of the testator. (o) Or, if an heir promise in consideration of the forbearance of a suit in Chancery, to which he was not liable. (p) So, if a man promise payment to an assignee, in consideration that he will accept him for his debtor. (q) Or, in consideration of relinquishing an assumpsit, which was void (r); or, in consideration of a discharge from a tortious arrest. (s) Again, if a woman after the death of her husband promise, in consideration that the plaintiff, a creditor of her late husband, will permit her to take out administration to her husband, she will pay him his debt, this is not a valid consideration; for the administration belongs to the wife. (t) So, in consideration of a lease at will, for he may determine it at his pleasure. (u) But if there be any benefit, labour, or prejudice, however trifling, it is deemed a sufficient consideration: as in the case of Sir Anthony Sturlyn v. Albany, (x) the plaintiff had made a lease to J. S. of land for life rendering rent; J. S. granted all his estate to the defendant; the rent was behind for several years; the plaintiff demanded the rent of the defendant, who promised, that if the plaintiff could show to him a deed that the rent was due, he would pay to him the rent and arrearages: the plaintiff alledged that on such a day, &c. he showed the defendant the indenture of lease by which the rent was due; but notwithstanding this, the defendant refused to pay the rent and arrearages due for four years; and for the recovery thereof the action was brought. A motion was made in arrest of judgment, that there was no consideration to ground an assumpsit; for the mere showing of the deed is no consideration in law. But the Court gave judgment for the plaintiff upon this ground, that when a thing is to be done by the party to whom the promise is made, be it never so small, this is a sufficient consideration to support an action; and here the showing of the deed was to avoid a suit. — The reporter makes the following note: "In this case it was alleged, that it had been adjudged, when one assumeth to another, that if he can show him an obligation in which he was bound to him, that he would pay him, and he did show the obligation, &c. that no action lieth upon

(n) Pl. Com. 509. 2 Ld. Raym. 919.

5 Term Rep. 143. 149.

(0) Mo. 782, 3.

(p) Cro. El. 206.

(9) 1 Saund. 210.

(r) 1 Rol. Abr. 26. 1. 10.

(s) Yelv. 25, 6.

(t) Mo. 685.

(u) 1 Rol. Abr. 23. 1.37.
(x) Cro. El. 67. 150.

this assumpsit; which was affirmed by the justices." And in Foster v. Scarlett, (y) the plaintiff declared, that whereas he and one Willington submitted themselves to the arbitrament of A. and B. of all matters, &c.; that A. and B. awarded the plaintiff should release to Willington all debts which he owed him; and that Willington should assure to the plaintiff certain lands which he held for life, the reversion to the plaintiff; and that the defendant and one Putter, who pretended to have a lease of the lands, should seal a deed to the plaintiff, that they should assure to the plaintiff their lease and interest in the said lands; that after the arbitrament, in consideration that the plaintiff did assume to Willington to stand to and perform the arbitrament, the defendant did assume, that he and Putter, upon a request made to them, would convey the said land to the plaintiff: the plaintiff averred that he had performed the award on his part, and had requested the defendant that he and Putter would convey the land, &c. which they had not done. It was moved in arrest of judgment that there was no consideration to bind the defendant, for he took no benefit thereby. But the Court held clearly the contrary, that it was a good consideration; for by reason of the promise the plaintiff was drawn to make the release; and it is not material that the defendant took no benefit by the release. So, the common law, in some cases, considers the mere entrusting a thing with another, and his undertaking the care of it, a sufficient consideration for his faithful discharge of the trust. And therefore, though a person who gratuitously engages to do an act for another, is not liable in law to an action for not doing it; yet if goods are delivered to him, and he undertakes to carry them, or do something about them without any reward, an action of assumpsit will lie on this bailment, if there be any neglect on the part of the bailee by which the goods are spoiled.

This was one of the points settled in the case of Coggs v. Bernard, (z) which was an action of assumpsit, wherein the plaintiff declared, that, whereas the defendant undertook safely and securely to take up several hogsheads of brandy, then in a certain cellar in D. and safely and securely to lay them down again in a certain other cellar in W., but that the said defendant and his servants so negligently and improvidently put them down again into the said other cellar, that for want of care in the defendant and his servants, one of the casks was staved, and a great quantity of brandy was lost. A motion was made in arrest of judgment, because it was not alleged in the declaration that the defendant was a common porter, nor averred that he had any thing for his pains. But to the second objection, "that there was no consideration to ground the promise, and that the undertaking was nudum pactum," Holt, Chief Justice, and the rest of the court, answered, that the owner's trusting (y) Cro. El. 70. (2) 2 Ld. Raym. 909.