was in terms made with them, or that their legal interest in it was joint at the time it was entered into, otherwise they should have sued separately: Brand v. Boulcott, 3 B. & R. 235; Osborne v. Harper, 5 East, 225. See the instances, post, "Partners, Actions by." If persons join as plts. in the action who should not, it will be good cause of nonsuit at the trial, Brand v. Boulcott, 3 B. & P. 235; or it is cause of abatement, Com. D. Abatement, E. 12. ante, 14; or if the objection. appear upon the face of the declaration, the deft. may demur generally, 2 Saund. 115, Ward v. Branston, 3 Lev. 363; or move in arrest of judgment, 1 B. & A. Ab. 31; or bring a writ of error, ib.

So,

When the assignee of a contract sues, he must prove an express promise to, or contract with him, to perform the contract, in consideration of forbearance, or in respect of some other new consideration, according to the facts stated in declaration: 1 Saund. 210, n. 1; Innes v. Dunlop, 8 T. R. 595; Surtees v. Hubbard, 4 Esp. Rep. 204. A contract being a chose in action, is not assignable at common law, so as to entitle the assignee to maintain actions in his own name; and the assignee must, therefore, proceed in the name of the assignor, Brooks v. Sowerby, 3 Moore, 184, Master v. Miller, 4 T. R. 340-1, Splidt v. Bowles, 10 East, 281; or, in case of his death, in his representative's, Seddon v. Senate, 13 East, 73, 4 T. R. 340; and, even though the assignor has become bankrupt, the action must be in his name, and not in that of the assignee of such bankrupt, as he is only entitled to sue a contract wherein the bankrupt was beneficially interested: Carpenter v. Marne, 3 B. & P. 40; Arden v. Watkins, 3 East, 320; 10 East, 279. in the case of a composition-deed, an action thereon should in general be in the name of the debtor, and not the trustee: 1 Chit. Pl. 11. There may be a change of credit, by agreement, between the parties, proof of which will entitle the plt. to recover though he be not the original contractor with deft.: thus, "Suppose A. owes B. £100, and B. owes C. £100, and the three meet, and it is agreed between them that A. shall pay C. the £100, B.'s debt is extinguished, and C. may recover that sum against A." Tatlock v. Harris, 3 T. R. 180; p. Buller, J., Hodgson v. Anderson, 3 B. & C. 855; 5 D. & R. 735; Wharton v. Walker, 4 ib. 166. It is absolutely necessary in this case, that B.'s debt should be extinguished by the arrangement, Wilson v. Coupland, 5 B. & A. 228, Wharton v. Walker, 4 B. & C. 163, Spratt v. Hobhouse, 4 Bing. 173; and which is not so, unless there be a communication between all the parties, and an express agreement by the plt. to accept the deft. as his debtor only: Wharton v. Walker, 4 B. & C. 163. As to form of action in such case, post "Money Had and Received." In such a case, deft. cannot object to the want of consideration between plt. and his debtor: Griffith v. Young, 12 East, 313, 5. In some cases, by express legislative provision, and in others by the custom of merchants, the assignee of a chose in action [*145] may *sue: post, "Bond," "Bail-Bond," "Replevin-Bond," "Bastardy-Bond," "Bill of Exchange," "Judgment." On covenants running with the estate in land, an assignee may sometimes sue: post" Covenant:" so may assignees of a bankrupt, by operation of law; post "Bankrupt."

In the case of a surviving partner or partners suing, the death of the deceased partner must be proved; post," Death," "Parish Register;" and, as to how partners should in general sue in the case of the death of a partner, post, "Partners."

In the case of an executor or administrator, or heir or devisee, suing, see the titles, post, "Executor and Administrator," " Heir," "Devisee;" and, as to actions at the suit of assignees of a bankrupt, post, "Bankrupt;" or insolvent, post, "Insolvent," or husband and wife, post," Husband and Wife."

Proof that the Contract or agreement was made by deft.] The plt. must prove either that deft. himself, or his agent, actually made an express contract, or that there are facts from which the law will imply deft.'s contract, ante, 141. Thus, it has been held that a captain of a troop, while absent, was not liable for subsistence furnished to the troop, though he derived a profit upon the subsistence-money, which had been paid by government, and though the troop still continued under his military orders, another officer, who had the actual command, having issued the orders for subsistence and received the subsistence-money: Myrtle v. Beaver, 1 East, 135; Rice v. Chute, ib. 579; Young v. Brander, 8 East, 10; 1 Chit. Pl. 23. And the seller of a ship, although deemed to be the legal owner at the time, was held not to be answerable for repairs, where the purchaser, in the interval elapsing between the inception and completion of his conveyance, ordered the master to take her to be repaired, which he did: Young v. Brander, 8 East, 10; Fraser v. Marsh, 13 East, 238. For the same reasons, an agent cannot in general be sued, ante, "Agent, Actions against, by Third Persons." As to the proof when deft. entered into the contract by his agent, see post, "Principal and Agent," If it be expected that deft. will set up the defence of incapacity to contract, such as his having been an infant, lunatic, under coverture, duress, drunkenness, &c., plt. should be prepared to disprove these facts: see those titles.

The plt. should be prepared to disprove that the deft. was a partner in the contract, if there be the slightest ground for such a defence, for a party cannot be plt. as well as deft. in an action, which would be the case, if he were suing a partner in the contract: Mainwaring v. Newman, 2 B. & P. 124, 2 Chit. Rep. 539; Bosanquet v. Wray, 2 . Marsh. 319; 6 Taunt. 597, s. c. See further, post, "Partners," to when they may sue each other, and the evidence in the action.

as

The plt. need not be prepared to prove that he has sued all the parties who contracted, as the nonjoinder of defts. cannot be taken advantage of at the trial: ante, 14.

The plt. should prove, in an action against two or more defts. that they jointly entered into the contract; otherwise plt. would be nonsuited, if it does not appear on the pleadings that they did not jointly contract: Shirreff v. Wilks, 1 East, 52; Porter v. Harris, 1 Lev. 63; B. N. P. 129; Siffkin v. Walker, 2 Camp. 308; Max v. Roberts, 12 East, 94; Wrall v. King, ib. 454; 1 Chit. Pl. 34. Therefore, in an action against three, two only of whom were liable to be sued, and the party not liable, together with one of those who was liable, suffered judgment VOL. I.

22

by default, and the other party pleaded the general issue, it was held nevertheless necessary that plt. should prove they all three jointly contracted, 1 East, 52, and see Hanway v. Smith, 3 T. R. 662; and so, where the plt. sued on a joint and several promissory note, against all

the makers jointly, and one of them, by his plea, admitted his [*146] handwriting to the note, but the other defts. pleaded non assumpsit, the plt. was nonsuited, for not proving the handwriting of the deft., who, by his plea, had so admitted it: Gray v. Palmer, 1 Esp. Rep. 135. When one of several defts. is discharged from liability by matter subsequent to the making of the contract, as by his bankruptcy and certificate, &c., the failure on the trial as to him on such grounds does not preclude the plt. from recovering against the other parties, and should the deft. avail himself of his want of liability, by pleading his certificate, plt. may enter a nol. pros. as to him, and proceed against the rest, Noke v. Ingham, 1 Wils. 89, 1 Saund. 207, a., Chandler v. Parkes, 3 Esp. Rep. 77; but, where the contract has, in fact, been made by all the defts., yet, in point of law, is not binding on some or one of them, by reason of their not having been originally liable, as from infancy, coverture, &c., it will be a ground of nonsuit if such such party be joined, 3 Esp. Rep. 77, 1 Chit. Pl. 35; and plt. cannot cure the defect by entering a nolle prosequi as to him, ib., but must commence a fresh action against the rest only: Burgess v. Merrill, 4 Taunt. 468; Gibbs v. Merrill, 3 ib. 307; Teed v. Elworthy, 14 East, 214; Jaffray v. Black, 5 Esp. Rep. 47. If the action is founded on a tort, as in debt on a penal statute, or the like, the joinder of too many defts. is no ground of objection: Carth. 361: post," Carriers." And the joinder of too many defts., executors, is no ground of objection: 1 Saund. 207, a.: post, "Executors." If it appear upon the face of the pleadings, that too many persons are made defts., deft. may demur generally, or move in arrest of judgment, or bring a writ of error: Mansell v. Burridge, 7 T. R. 352. As to the mode of proving a joint contract, post, "Partners.”

In an action against a surviving partner, there is no occasion to prove the death of the deceased partner, nor is it necessary to prove that the deft. jointly contracted with him, if, indeed, the plt. does not declare against him as surviving partner.

If the action be against the assignee of a contract, the plt. must prove a fresh agreement, founded on consideration entered into between him and the deft., and as stated in the declaration, 3 B. & C. 855, 4 B. & C. 163. Anstey v. Marden, 1 N. R. 124, Evans v. Drummond, 4 Esp. Rep. 91, Reed v. White, 5 Esp. Rep. 122, Tapley v. Martens, 8 T. R. 451, Boddenham v. Purchas, 2 B. & A. 39, Wilson v. Coupland, 5 E. & A. 228, Israel v. Douglas, 1 H. Bla. 239, 1 Chit. Pl. 37, ante, 144; for, in general, in the case of a mere personal contract, the action for the breach of it cannot be brought against a person to whom the contracting party has assigned his interest, and the original party alone can be sued: ib. 1 Chit. Pl. 36. Proof that the deft. is the endorsee of a bill of lading, requiring the delivery to order, on payment of freight, renders him liable: Bell v. Kymer, 1 Marsh. 146; Pinder v. Wilks, ib. 250; Wilson v. Kymer, 1 M. & S. 157. Proof that the

deft. (who was the consignee or purchaser of goods) accepted the goods, in pursuance of the usual bill of lading, will render him liable for the freight, unless he was the mere agent of the consignor, and that was known to the plt. or master of the ship: Ward v. Felton, 1 East, 507; Pinder v. Wilks, 1 Marsh. 248. In the case of covenants running with the land, which concern real property or the estate therein, the assignee of such covenant may sometimes be sued: post, "Covenant."

The proofs for plt. in actions against executors, &c., bankrupts, assignees of bankrupts, insolvents, husband and wife, will be found under their respective titles, post.

Proof of the Motive, Inducement, or Consideration for the Contract.] The plt. must prove that the contract was founded on a sufficient and legal motive, inducement, or consideration; and this though the contract was in writing, Rann v. Hughes, 7 T. R. 350, n.; or the contract is void, and no action can be maintained on it: 2 Bla. C. 444; Chit. Cont. 7. *In actions on bills of exchange and [*147] promissory notes, this is not, in general, necessary: post, "Bills of Exchange." The consideration must be proved, as stated in the declaration, or a variance would be fatal, ante, 114; and see the various instances under the different titles throughout this work.

A consideration is sufficient if it arise "from any act of the plt., from which the deft., or a stranger, derives a benefit or advantage, however small, if such act is performed by the plt. with the consent, express or implied, of the deft.," 2 Saund. 137, e.; Longdridge v. Dorville, 5 B. & A. 122; or by reason "of any damage, or any suspension or forbearance of plt.'s right at law or in equity; or any possibility of a loss occasioned to the plt. by the promise of another, although no actual benefit accrues to the party undertaking:" 1 Saund. 211, c. It is not essential that the consideration should be adequate in point of actual value, as the law does not weigh the quantum of the consideration, 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 plt. on the deft., or a third person, or even if the plt. sustain the least injury, inconvenience, or detriment, or subject himself to any obligation, Pillans v. Mierop, 3 Bur. 1672, &c., Bates v. Cort, 2 B. & C. 474, without benefiting the deft. or any other person: Chit. Contr. 7; Sturlyn v. Albany, Cro. El. 67; Com. D. Assumpsit, B.; Jones v. Ashburnham, 4 East, 463; Bunn v. Guy, ib. 194; Williamson v. Clements, 1 Taunt. 523; Phillips v. Bateman, 16 East, 372; Richardson v. Mellish, 2 Bing. 242; Whitehead v. Greetham, ib. 464; Morley v. Boothby, 3 ib. 112, 113. An undertaking to pay if deft. will prove his debt, is a sufficient consideration for the deft.'s promise, Sid. 57, and see Sturlyn v. Albany, Cro. El.,67; but the mere undertaking to pay the debt of a third person is not sufficient, if there be no new consideration, as forbearance, &c., 1 Rol. Ab. 27, pl. 49, and credit was not given at the promiser's

request: Fell, Merc. G. 39, 40, 240. The mere delivery by the plt. to the deft. of the goods of the former, is a sufficient consideration for the deft.'s promise to account for and take care of the same: Coggs v. Bernard, 2 Ld. Raym. 819. It is a sufficient consideration for a promise, that plt. undertook to endeavour to perform any act at the deft.'s request, Goring v. Goring, Yelv. 11, Hob. 105, Bohenham v. Thacker, 2 Vent. 71, 74, Com. D. Assumpsit, B. 5; but the endeavour must be proved to support the action. An agreement to refer to arbitration, to settle boundaries, to prevent litigation, is sufficient: 1 Ves. 23; Com. D. Action on Case on "Assumpsit," Longdridge v. Dorville, 5 B. & A. 117. The relinquishing a claim to a doubtful title, Thornton v. Fairlee, 2 Moo. 406, the written assignment by the plt. to the deft. of a mere parol agreement between the former and a third person, for the sale of a house to the plt., the benefit whereof the deft. receives accordingly, Seaman v. Price, 2 Bing. 437, are sufficient considerations. A waiver of a tort, from which the deft. derived a benefit, is a sufficient consideration for a promise by him, Hill v. Perrott, 3 Taunt. 274, King v. Langham, 2 T. R. 145, Reed v. James, 1 Stark. 134, Gill v. Kymer, 5 Moo. 525; and even in cases where no loss was sustained by the plt., Davis v. Morgan, 4 B. & C. 12. The consideration, however, must not be wholly worthless; therefore, a promise to forbear "for a little while" has been held not to be a sufficient consideration, 1 Bulst. 41; see further, post, "Forbearance." The mere doing that which the plt. was bound in law to perform, is not a sufficient consideration; therefore, a promise to pay witness for loss of time is not suffi

cient, the witness being bound by subpoena to attend: Willis [*148] v. Peckham, *1 B. & B. 515, 4 Moo. 300, s. c.; Moor v. Adam, 5 M. & S. 156; and see Harris v. Watson, Peake's Rep. 72; Brown v. Crump, 1 Marsh. 567; Newman v. Walters, 3 B. & P. 612; Dafter v. Cresswell, 2 C. & P. 161. A mere moral obligation to pay a debt, or perform a duty, is a sufficient consideration to support an express promise, although no legal liability existed at the time of making such promise, Hawkes v. Saunders, Cowp. 290, Wennall v. Adney, 3 B. & P. 249, n., Atkins v. Banwell, 2 East, 506; or although no legal responsibility ever existed: Seaman v. Price, 2 Bing. 437; Hyeling v. Hastings, 1 Ld. Raym. 389. But, in these cases there must be a strict and undoubted moral consideration: Harris 7. Watson, Peake's Rep. 72; Brown v. Crump, 1 Marsh. 567; Willis v. Peckham, 1 B. & B. 515. Natural affection only is not a sufficient consideration: Brett v. J. S., Cro. El. 756, 3 B. & P. 249, n. If the consideration he such that it was utterly impossible, in fact or law, to be performed, it is insufficient, 5 Vin. Ab. 110, 111, 1 Rol. Ab. 419, Harvy v. Gibbons, 2 Lev. 161, Toutting v. Hubbard, 3 B. & P. 296, n.; Nerot v. Wallace, 3 T. R. 22, Seaman v. Price, 2 Bing. 437; but, if the performance of the consideration be merely improbable or difficult, Co. Lit. 206, a. n. 1, 179, a., Thornborow v. Whitacre, 2 Ld. Raym. 1114, Chit. Con. 14, or impossible only with regard to the party to perform it, or he might legally and in fact cause it to be performed by others, it will be sufficient, ib. 3 Chit. Com. L. 100; as to the statement of the consideration, ante, 115,