dictum has not been followed in subsequent decisions, it is said by Anson 21 that the views of Lord Mansfield are a useful corrective to the impression of those who think that the rules of the law of contract from their logical completeness are inevitable.

That there must be a causa or some adequate lawful motive for contracting the debt, originated in the Canon law; and so the idea found expression in Courts of Equity in the fifteenth century through the Chancellors, who at that time were all ecclesiastics. This is evident from The Doctor and Student, a treatise on the Canon law of the sixteenth century. And yet there has been considerable doubt as to whether there is any connection between this causa in the sense of the Canon law and the modern doctrine of consideration. It is true that there are important differences between the medieval and the modern principle. There were also diversities of view in some of the earliest applications of the principle requiring a causa. Molina, a jurist of the sixteenth century (following the opinion of Felinus), regards the causa as a sort of rule of evidence to indicate the intention of the parties and prove the existence of the contractnecessariam esse causae

expressionem: alioquin reus non cogetur solvere nisi actor causam sufficienter probet."22

On the other hand, Lord Bacon thought it necessary to correct this canonical and medieval view, by distinctly laying it down that "you shall never find a reason for this to the world's end in the law; but it is a reason of Chancery, and it is this: that no Court of conscience will enforce donum gratuitum, though the intent appear never SO clearly.23 There is yet another important difference between the canonical and the equitable, viz., between the mediæval and the modern view. In The Doctor and Student, the Canon law is explained as follows:

"If A. promise to give B. £20 because he hath made him such a house, or hath lent him such a thing or such other like, I think him bound to keep his promise. But if his promise be so naked that there is no manner of considera tion why it should be made, then I think him not bound to perform it, for it is to suppose that there was some error

21 Law of Contract, 13th edition, p. 65.
22 Molina: De Justitia, Disput, 257.
23 Bacon: Reading on the Statute of Uses.

.

in the making of the promise. And in all such promises it must be understood that he that made the promise intended to be bound by it, for else, commonly after the doctors, he is not bound, unless he was bound to it before his promise

This is very different from the modern doctrine of consideration as laid down in the cases of Eastwood v. Kenyon, in 1840,24 and Roscorla v. Thomas, in 1842,25 viz., that to support a promise the consideration must be either present or future, and that past consideration is to no purpose.

But as it seems to the present writer, there are two currents of thought existing from medieval and distinctly traceable down to modern times. In the case of Lampleigh v. Brathwait, in 1614,26 the old canonical view of Felinus and Molina was upheld to this extent that a past consideration, if granted at the request of the promisor is a sufficient causa to support the subsequent promise, which in this case was held enforceable by action of assumpsit. In this case it was held that, as a matter of fact, the original compliance with a request was not with a view to creating a legal obligation, but was "a mere voluntary courtesie"; and yet this compliance was held sufficient causa to support a subsequent promise by the party whose request had been complied with. This looks something like the recognition of a purely moral obligation as sufficient causa to support a promise; the compliance could scarcely be regarded as evidence even of the intention to make the subsequent promise, still less of its having been made. The next case in which the same question was raised was not till 1835. In the meantime, Lord Mansfield had said in 1765,27 that consideration was required as evidence only, and that in commercial cases a promise in writing need not be supported by consideration. Exactly the opposite was held by the Exchequer Chamber and by the House of Lords in 1778, in Rann v. Hughes,28 namely, that a merely moral obligation is not sufficient consideration to support a promise. But in Lee v. Muggeridge,20 in 1813, Mansfield, C.J., again held, even more distinctly, that a moral obligation was. sufficient consideration to support a subsequent promise.

24 11 Adolphus and Ellis, 438.

3 Q. B. 234.

201 Smith's Leading Cases, 11th ed., 141, and Hobart, 105. 27 Pillans V. Van Mierop.

28 7 T. R. 350.

295 Taunton, 36.

In this case Mansfield, C.J., and Gibbs, J., held that "wherever there is an antecedent moral obligation and a subsequent promise to perform it, it is of sufficient validity for the plaintiff to be able to enforce it." In the case o Wilkinson v. Oliveira, in 1835,80 the promise to pay was admittedly subsequent to the alleged consideration; and yet Tindal, C.J., described the promise and the consideration as "mutual," presumably on the assumption that there was an implied promise at the time when the antecedent consideration was requested by the promisor, and that the subsequent promise was a sort of ratification of it. As far as it goes, this decision of Tindal, C.J., rather supports Lord Mansfield's view, but not very strongly. The theory of moral obligation, as beng a sufficient cause to support a promise, must have received a somewhat severe shock in the case of Eastwood v. Kenyon, in 1840;31 then Lord Denman said that "the doctrine of moral obligation would annihilate the necessity of any consideration at all, inasmuch as the mere fact of giving a promise creates a moral obligation to perform it;" he goes on to say, that such a thing was not heard of until the time of Lord Mansfield, and to imply that Lord Mansfield had dragged it in unnecessarily. It was decided in this case that past consideration was no consideration at all; and the same thing was also decided in Roscorla v. Thomas, in 1842.32 In the case of Kaye v. Dutton, in 1844,33 Tindal, C.J., held that, "where the consideration is one from which a promise is by law implied

-as in some cases the acceptance of services imports a promise to pay for them-" no express promise made in respect of that consideration after it has been executed, and differing from that which is by law implied, can be enforced." This dictum may be considered as throwing some light on the previous decision of Tindal, C.J., in Wilkinson v. Oliveira. In other words, whatever the antecedent implied promise may have been-if there was one at all-the subsequent express promise must not differ materially from it.

Thus we observe three rival theories as to the doctrine of consideration:-(1) the highly artificial doctrine of the Common-law Judges (as per Lord Denham, 1840), perhaps the more artificial because originally borrowed from Equity,

01 Bingham's New Cases, 490.
111 Adolphus and Ellis, 438.
823 Q. B. 234.

337 Manning and Granger. 807.

viz., that there must be (present or future) consideration to support a promise; (2) the doctrine of moral obligation (as per Lord Mansfield); and (3) the old canonical view of consideration as having a merely evidentiary value.

34

The theory of moral obligation may be considered as disposed of; but not so the canonical or evidentiary view of consideration. In the case of Bradford v. Roulston, in 1858, it was held, that a past consideration granted at the request of the defendant was sufficient to support the defendant's subsequent promise in writing. The facts were fairly simple; the defendant introduced to the plaintiff two friends desirous of buying a ship but lacking £55 of the price; then, at the defendant's request, the plaintiff allowed the purchasers credit for the £55; subsequently, the defendant guaranteed in writing the payment of the £55.

Plaintiff sued for the amount; and it was held, that because the past consideration of allowing the purchasers credit had been at the defendant's request, therefore it was sufficient to support the defendant's subsequent promise. In this case the authorities were carefully quoted, and the rule in Lampleigh v. Brathwait strictly adhered to. However, it is considered by some writers that Lampleigh v. Brathwait and Bradford v. Roulston must either be supported on some different ground or abandoned. For according to Pollock, "there is no satisfactory modern instance of this doctrine, and it would perhaps now be held that the subsequent promise is only evidence of what the parties thought the service worth."35 And likewise Anson, "the correct view seems to be that the subsequent promise is only binding when the request, the consideration, and the promise form substantially one transaction, so that the request is virtually the offer of a promise, the precise extent of which is hereafter to be ascertained."86

37

The less artificial and more logical reason here suggested by the two modern writers was actually adopted by Bowen, L.J., in Stewart v. Casey, but without discarding the old ratio decidendi of Lampleigh v. Brathwait and Bradford v. Roulston.

In Stewart v. Casey, Lord Justice Bowen said: "Even if it were true, as some scientific students of law believe.

48, Irish Common Law Reports, 468.
Principles of Contract, 8th ed., p. 189.
36 Law of Contract. 13th ed., p. 122.
"L. R. [1892]. 1 Ch. 115.

that a past service cannot support a future promise, you must look at the document and see if the promise cannot receive a proper effect in some other way. Now the fact of a past service raises an implication that at the time it was rendered it was to be paid for, and, if it was a service which was to be paid for, when you get in the subsequent document a promise to pay, that promise may be treated either as an admission which evidences, or as a positive bargain which fixes, the amount of that reasonable remuneration, on the faith of which the service was originally rendered. So here for past services there is ample justification for the promise to give the third share."

The dictum of Bowen, L.J., is the last word of legal decision on the subject of past consideration. The same principle was admitted by the defendant in Marshall v. McLaughlin,38 in which the present writer was plaintiff; in which case the actual promise was verbal merely, whereas in Bradford v. Roulston and Stewart v. Casey it was in writing.

Thus we see that the present law requiring consideration to support a promise is highly composite; it is the joint product of the above-mentioned decisions, which - apart from those of Lord Mansfield-are consistent or at least reconcilable with each other. There is the artificial Common-law rule, itself borrowed from Equity, that there must be (present or future) consideration; there is the equally artificial Common-law exception to this rule, viz., the exception in favour of past consideration, laid down in the cases of Lampleigh v. Brathwait and Bradford v. Roulston.

There is also the old canonical rule, traceable back to the Middle Ages and the writings of Felinus and Molina, which regards the consideration for a promise as having a merely evidentiary value; this evidentiary view of consideration is still supported by the modern authorities on Lampleigh v. Brathwait and Bradford v. Roulston, and especially by Bowen, L.J., in Stewart v. Casey; although these modern authorities fall far short of upholding the old canonical view, viz., that the consideration necessary to support a promise is only important as having a merely evidentiary value as to the existence of the agreement.

R. L. MARSHALL.

39 In the Lambeth County Court of Surrey, March, 1905.