was further held that he was not liable on the money counts, as he received the money in a sealed letter; and that if he could have been charged on those counts, it would not have been as bailee, but as having received the money of the plaintiff for his use. The court of New Hampshire, however, have decided differently on this point.'

It is believed that gratuitous bailments are not contracts, there being no consideration to sustain them as such; and that, as matter of contract, the distinction between non-performance and misperformance is wholly unfounded. It is also believed that the actual distinction, as supported by the preponderance of judicial authority, is merely this, viz. that no action will lie for nonfeasance, but that misfeasance is an actionable tort.

But

As this matter has heretofore been ably discussed in the Jurist, it is only necessary to refer the reader to that discussion, for a very lucid defence of the foregoing views. whether these views are right or wrong, it is certain that the doctrine of consideration is all a fiction, in these cases, or that what is no consideration, in other cases, is a sufficient one in these.

The fictitious nature of the consideration, as to the incidents of "benefit," &c. is still more manifest in that class of cases where a mere legal obligation is the ground of an implied promise, than in the cases already noticed. In such cases, the obligation is held to be a sufficient consideration.' The action of debt is founded on a contract, express or implied yet debt lies for the recovery of a penalty affixed by statute to the commission of an act therein forbidden, or the omission of an act therein enjoined, unless some other mode of recovery is prescribed by the statute itself. The penalty,

1 Graves v. Ticknor, 6 N. Hamp. 537.

2 Amer. Jurist, Vol. xvi. p. 253, et seq.

3 Belfast v. Leominster, 1 Pick. 127; Wing v. Mill, 1 Barn. & Ald. 105.

when incurred, is by the law regarded as a debt thereupon due to the party authorized to sue for it. And if a consideration is required to support an implied contract to pay such a debt, it is to be sought in the legal obligation to pay it. If the penalty be given to the party injured by the act or omission by which it is incurred, and he be regarded as the party with whom the delinquent contracted, there would be no difficulty, perhaps, in ascertaining whether the consideration included a benefit to the one or a damage to the other. But when the penalty is given to a common informer, and the notion of a contract is still retained, as it must be, the difficulty, as to the benefit or damage included in the consideration, is not so readily removed. Debt also lies (in England and in some of the states of the American union) against a sheriff for the escape of a prisoner in execution. This, however, is by statute, and is not a part of the common law. A debt to the creditor is incurred by the officer guilty of the escape. Here again, damage to the creditor is sufficiently obvious as the consideration of this fictitious

contract.

In all these and similar cases, the "instance and request of the party liable by law to pay, that the other party should incur a damage, &c. must be implied, if at all, not only against the fact, but against all the principles by which mankind are actuated. Such cases are to be regarded as anomalies, the law authorizing the enforcement of a remedy in the form appropriated to actual contracts. They are, in truth, no more properly contracts, than are assault and battery, slander, or larceny. And on strict principle, the collection of a penalty for breach of a statute is no more easily reconciled with the doctrine of contracts, than would be the recovery of damages for any injury inflicted on persons or property; and the law might as well imply a promise to repair all injuries which a party commits, as to pay a pen

alty prescribed by statute, or the debt of a prisoner escaping from an officer.

So in the case of a mere legal obligation, where there is no antecedent moral duty, the notion of a contract is wholly fictitious. By a fiction, indeed, the protection of government may be deemed a consideration for an implied promise to pay the expenses of administering it. And this fiction may be extended to the cases of municipal charges, as for the support of the poor, &c. But in these instances of mere positive institution, though the law may rank with actual contracts the obligation of contributing, yet there is only an imaginary resemblance, and it is only by fiction, and for legal conformity's sake, that a consideration is to be sought.

The cases, in which a slight benefit to the party promising, and a slight damage, loss, or inconvenience to the other party, has been held sufficient to sustain a contract, are collected in Comyns's Digest, Action upon the Case upon Assumpsit, B; 1 Comyn on Contracts, part i, chapter 2, and 1 Powell on Contracts, 330 et seq. Upon a careful examination of the earlier cases on this subject, some confusion and contradiction will be perceived; and it probably is impossible to reconcile them. In most instances, however, it will be found that the misapplication of acknowledged principles, rather than the assumption of contradictory ones, has caused the discrepancies in the adjudications on this topic. In the modern decisions, there is hardly an instance in which judges have differed in their views on the subject of consideration.

In sales, exchanges, loans, and most other contracts, there is no difficulty in at once perceiving the consideration. But in some cases, it is not so readily discerned. And after much hesitation as to the expediency or the profit of so doing, we have decided on setting forth a few examples, illustrative of the principles on which much of the law on this point now

rests.

SLIGHT BENEFIT TO THE PROMISOR.

1

"He So of

A promise, in consideration of so much money received, to pay the like sum into court, and appear. "For here he has benefit for the use of the money." A promise to cancel a bond, in consideration that the obligor will pay the single sum, at the day of payment. "For peradventure the nonpayment at that time would be more prejudicial to him than the forfeiture of the bond would be of advantage." had benefit, viz.: to be sure of the performance." a promise by a judgment creditor to assign the bond and judgment against the principal to the bail, in consideration of his paying the amount of the judgment, after scire facias brought against him. A promise by an executor to accept £150 in satisfaction of a debt to the testator of £205. For the nature of the debt is changed, and the executor may sue for it in the debet, i. e. as for his own proper debt; whereas, before, he must have sued in the detinet, i. e. in his representative capacity. This action was against the debtor on his promise to pay the smaller sum, and was sustained. But there was no consideration for this promise, unless the executor was bound to discharge the original debt. And on the same principle an action would have been supported against the executor, if he had refused to fulfil his engagement to receive the smaller sum in full satisfaction." A promise to acknowledge satisfaction of a judgment for five pounds, upon the payment of four pounds, was held to be binding; for "it is a benefit unto him to have it without suit or charge; and it may be there was error in the record,

12 Vent. 45.

2 Hut. 76; Cro. Car. 8; See also Coke v. Hewit, cited Cro. Eliz. 194. Gouldsb. 156.

4 Yelv. 11.

5 See 7 D. & E. 350, note.

4

so as that the party might have avoided it." This case, however, would not, probably, be now considered as rightly adjudged. An equity of redemption, in England, has been decided, once at least, to be of no value in law,' and therefore a release of it was held not to be well pleaded as an accord and satisfaction, in an action on a bond. It does not appear, in the report of this case, whether the release were made to the mortgagee or to a stranger. A release to the mortgagee has been held, in other cases, to be a sufficient consideration for a promise. A contract of which a lease at will is the consideration, has been adjudged to be void, because the tenancy may be determined immediately; but if it be doubtful whether the tenant have a right to hold, i. e. if it be doubtful whether he be tenant at will, the assignment of such a lease or interest will support a promise. The relinquishment of a doubtful right is therefore a good consideration for a promise. Where the plaintiff orally bargained with A for a house, and sold the bargain to the defendant for £40, and A, at the defendant's request, conveyed to B; it was held, in a suit for the £40, that the consideration was sufficient." The only true ground of this decision seems to be, that the defendant had a chance of receiving a benefit. That the defendant actually received a benefit, through the plaintiff's means, though mentioned by the court, was no consideration for the original promise; though it might perhaps have supported a promise made

Cro. Eliz. 429; Moore, 412.

2 2 Wils. 86.

3 Comyns's R. 98; 1 Ld. Raym. 662; 12 Mod. 459.

4 Kent v. Prat, 1 Brownl. 6.

5 1 Vin. Abr. 309; recognised by Best, C. J., and applied, in an analogous case, by the court, in Richardson v. Mellish, 1 Bing. 244.

6 5 Barn. & Ald. 117; 5 Peters, 114; 6 Munf. 406; 2 Bibb, 343, 448.

7 Seaman v. Price, 2 Bing. 437. On a writ of error, the King's Bench affirmed this judgment, upon the ground that A's promise must be taken, after verdict, to have been a valid one, i. e. in writing, 4 B. & C. 528; 7 D. & R. 14.