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an internal evidence of a good consideration,” and that “he shall not be allowed to aver the want of a consideration, in order to evade the payment.”" It was, however, decided by the House of Lords, in the case of Rann v. Hughes,” that whatever may be the rule of the civil law, simple contracts, by the law of England, whether oral or written, must be founded on a consideration.” Nor is a promissory note an exception to this rule. While such note is in the hands of the payee, want of consideration is a good defence. So also as between indorser and indorsee." When a negotiable note is negotiated, and comes into the hands of a third person, bona fide, and without notice, the want of consideration for originally giving or indorsing it is not a defence against the holder. The same is true of negotiated bills of exchange. It is not, however, the form of a bill or note, nor its being in writing, that gives it efficacy without consideration. This efficacy is given by the law, in order to facilitate commercial intercourse, which is carried on through the medium of these species of contracts, and which would be greatly retarded and embarrassed, if every holder of these kinds of paper were obliged to inquire into the original consideration, or incur the risk of losing his property on account of a defect in their concoction. Another reason is given in some of the books, viz.: that these instruments are governed by the law-merchant, which is founded on the law of nature and nations, by which want of consideration is not an essential defect in a contract. It is not necessary that the consideration of an agreement should be adequate in actual value. No means are provided, by which this point can be determined in a court of law. Inadequacy of price is sometimes a ground of relief in chancery; not, however, on the principle of controlling or revising the judgment of the parties, when freely and fairly exercised; but upon the evidence, thereby furnished, of the incompetency of one party to contract, or of fraud and imposition practised by the other, in the instance brought into question.’ A consideration must include some benefit to the party promising, or some trouble, prejudice or inconvenience, to the party to whom the promise is made.” And with reference to the rules of pleading, it is probably true that a consideration must include some benefit to the promisor, or to a third person, or some damage, loss or inconvenience to the promisee, at the instance of the party promising.” In stating the consideration of an agreement, in a declaration in special assumpsit, it doubtless is necessary, as a general rule, to allege the instance or request of the promisor that he or a third person should receive a benefit, or that the promisee should incur a damage, inconvenience or loss. In many cases, however, this request may be, and is, implied, as well as the promise thereupon made; and like the promise itself, it is also sometimes to be implied directly against the actual fact. In no other way, but by this fiction, can all the adjudged cases—even those of unquestioned authority— be brought within the rule advanced by Messrs. Lawes, Selwyn and Chitty. The fiction is as obvious, and, on original principle, as unnecessary, in this stage of the contract, as in that where a promise by the same party is implied. The real ground, in both cases (as has heretofore been sug
1 2 Bl. Com. 450. * 7 D. & E, 350, note.
* See also 4 Johns. 235, 296; Cooke, 499; 4 Taunt. 117; 1 Saund. 211, note 2.
• Kyd on Bills, 276; 2 Wes. jr. 111; 5 Taunt. 553; 7 Johns. 26; 6 Mass. Rep. 434; 3 D. & E. 421; 17 Johns. 301.
* See Wightwick, 109, Evans v. Brown; Newland on Contracts, chap. xxi.; Gilmer, 230.
* Com. Dig. Assumpsit, B. 1; 1 Saund. 211, b. note.
* Selwyn's Nisi Prius, Assumpsit, I; Chitty on Contracts, 7; Lawes Pl. in Assumpsit, 51.
gested as to the promise) is duty and obligation, moral and legal.' There often need be, and is, in fact, no request and no promise. However slight the benefit to the promisor, if of any legal value, and however slight the damage, loss, or inconvenience to the promisee, if of any legal estimation, it is sufficient to support a contract. There are cases, in which it seems to be doubtful whether the consideration, which sustains what is treated as a contract, is regarded in law as a benefit to the promisor, or a damage, &c. to the promisee. We purposely say what is treated as a contract, instead of explicitly calling it a contract, in these instances, for reasons that will presently
appear. Thus where goods are delivered on a promise to redeliver
them to the bailor, when no use is to be made of them by
* It seems to the writer that a suggestion may not be useless, in this connection, respecting the practice of placing such books as Espinasse's, Buller's and Selwyn's Nisi Prius, in the hands of students, in the early stages of their pupilage. The doctrines of the law, in these works, are set forth, in a great measure, with reference to the Actions of which the compilers treat, and the rules of pleading applicable to those actions. But when (in former days) were students advised of this fact? When were they cautioned not to take, as the real truth of the matter—the elementary doctrine of the law—the positions laid down by these writers in reference to the forms of actions and of pleading 2 The writers themselves do not give this caution, and young students do not always distinguish between the body and the dress, the substance and the form. With regard to pleading, nearly the whole doctrine, treated of under the title of Assumpsit, is founded on fictions, that no book, which the writer has seen, has attempted to explain or arrange. He hopes, however, that others have never been confused and misled as he has been, by lack of knowledge on these points.
This seems to be a fit place to say, once for all, that these sheets were originally compiled for students who were commencing their legal studies. Hence the very rudimental character of the discussion, and the particularity—probably redundancy—of the illustrations.
It is only with the writer's “hard consent” that these notes appear in this journal. The editors will bear him witness that they “wrung from " him his “slow leave by laborsome petition.”
the bailee, nor anything paid or promised by the bailor; and where goods or moneys are delivered by the owner to a bailee, on his undertaking to deliver them to a third person, the bailment being gratuitous; it seems to be considered by writers and judges that the bailor has a remedy, in an action er contractu, if the bailee do not perform his undertaking, and that there is a sufficient consideration to support a contract." In Wheatly v. Low, according to Palmer's report, Ley, C. J. considered the damage, ultimately sustained by the bailor, as the consideration on which the contract rested. But this is no legal consideration; for it did not exist at the time the alleged contract was made. The same might be said of every gratuitous promise where an injury arises from a neglect to perform it. Lord Holt says there was no benefit to the promisor, nor any consideration except his assuming the trust.” And this, according to Croke's report, was the ground on which the court put the case. In some of the prior cases,” the bailee's possession of the property was regarded as a benefit to him, at least “that it should be intended that he had some benefit thereby, or he would not have made the promise.” But this is no reason; for it would support every promise not void for illegality. These cases are classed, by Comyns & Comyn, with those of benefit to the promisor." It is manifest that, in some of these cases, the bailor must have requested the bailee to take the property, and that (whether benefit to the latter, or damage to the former, were the ground of the consideration) it was not in fact, however it might be in legal intendment, at the instance and request
* Wheatly v. Low, Palmer, 281; Cro. Jac. 668; S. C. 2 Kent's Com. Lecture xl.; Story on Bailments, chap. iii.; 3 Wils. 446.
* 2 Ld. Raym.920.
* Cro. Eliz. 883, Riches v. Bridges; Yelv. 4, S. C.
* Com. Dig. Assumpsit, B. 10; 1 Comyn on Con. 14.
of the promisor. And so in all other gratuitous bailments where the actual advantage accrues only to the bailor. In all these cases, and others like them, it is admitted and adjudged, that if the party sought to be charged had merely promised to receive the goods and redeliver them to the bailor, or deliver them over to a third person, and had afterwards refused or omitted to fulfil such promise, he could not have been made responsible in law, for the non-performance, either in an action ea contractu or ea delicto." But if the bailee enters upon the performance of a gratuitous undertaking, and fails to perform it according to the terms of the undertaking, he is answerable in damages.” It is believed that all the English decisions on this latter point were made in actions ea delicto. It is not known to the writer that assumpsit has ever been maintained in Westminster Hall for misperformance of a gratuitous undertaking. And perhaps Wheatly v. Low is the only case in which this form of action has been sustained for non-performance of the terms of a gratuitous bailment, as such. The previous cases were decided differently, and on wellestablished grounds.” A recent decision in New York conforms to this old doctrine." The case was this. A man received at New Orleans a sealed letter, containing a $100 bank note, and promised to deliver it to the person, to whom it was addressed, at Selina in the state of New York. This he failed to do; and it was held that he was not liable in assumpsit, as bailee without reward, for this default. It
* See Kent & Story ubi sup. ; 6 J. J. Marsh. 455; 4 Johns. 84; 2 Wash. 203. * Coggs v. Barnard, 2 Ld. Raym. 909; Comyns Rep. 133; 3 Salk. 11; 1 Salk. 26; Elsee v. Gatward, 5 D. & E. 143; 1 Powell on Contr. 367; Wilkinson v. Coverdale, 1 Esp. Rep. 75; Rutgers v. Lucet, 2 Johns. Cas. 95. * See Pickas v. Guile, Yelv. 128; Game v. Harvie, Yelv. 50; Riches v. Bridges, Cro. Eliz. 883, and Yelv. 4, in which case the judgment of the King's Bench was reversed in the Exchequer Chamber. * Beardslee v. Richardson, 11 Wend. 25.