The

Traverse v. Meres, Sir T. R. 32 (13 Car. II.). plaintiff declares, that whereas the husband of the defendant now dead, was indebted to the plaintiff, the defendant promised, that if the plaintiff would manifest and make appear that her said husband was indebted, she would pay it; and avers, that he had been at all times ready to manifest the said debt; and on non assumpsit found for the plaintiff. And Allen moved in arrest of judgment, that there is not any consideration, for that the wife was neither executrix or administratrix. Trin. 51, Rot. 1446, Hunce v. Hinton. The son of the defendant was indebted to the plaintiff, and the defendant promised upon forbearance to pay; and there judgment was for the plaintiff, because forbearance shall be taken for total forbearance. Twisden, Justice. The difference is betwixt forbearance generally, there is a good ground of action, although the defendant be neither executor or administrator; but upon forbearance of the defendant it ought to appear that there was some cause of forbearance. Wild for the plaintiff. The making of the debt appear, is trouble and pains to the plaintiff, and therefore a good consideration. It was adjourned, and afterwards judgment was given for the plaintiff.

Benson v. French, 1 Lev. 98 (15 Car. II.). Assumpsit and declares, that he had arrested a woman for £20, and that she being in the custody of the bailiff at the defendant's house, the defendant in consideration that the bailiff would permit the woman to tarry at the defendant's house for one night, promised to the bailiff on the plaintiff's part, to deliver the woman to the bailiff the next morning, or to pay the £20. And that the bailiff permitted the woman to tarry there that night; but that the defendant did not deliver her to the bailiff the next morning, nor had he paid the £20. After verdict on non assumpsit for the plaintiff, it was moved in arrest of judgment by Wylde, the King's Serjeant, that the woman was either always in the custody of the bailiff (and then it was not any consideration), or out of his custody, and then it was an escape, and the consideration and promise were (then) both illegal. To which it was answered by Jones, that it might be for the ease of the woman to lie there that night, and so a good consideration, though never out of the custody of the bailiff; and if it be intended that she was out of the bailiff's custody, yet it shall be intended that it was by the plaintiff's assent, because the promise was made to the bailiff on the plaintiff's

part; and the plaintiff having brought the action it proves his assent, and his assent after is sufficient to make the promise good. And held by the Court, if it was an escape, the consideration and promise were both illegal; but they held that it was not any escape, but rather an undertaking that she should not except; and the promise being laid to be made to the bailiff on the plaintiff's part, it shall be intended that she was left there by the assent of the plaintiff. And they gave judgment for the plaintiff.

Quick v. Coppleton, 1 Lev. 161 (17 Car. II). Assumpsit. Whereas the defendant's late husband was indebted to the plaintiff, and she about to come to London, and being in fear to be arrested by the plaintiff, she promised him in consideration that he would not trouble her, and would forbear till Michaelmas, to pay, &c. After verdict, it was moved, that she not being shewn to be executor or administrator, the forbearance was not any consideration, which was agreed by the Court; but the subsequent words forbear till Michaelmas, are distinct and general, not only to forbear her but all others, and makes a good consideration, whether she be liable or not; and they cited Heriot and Hinton's case adjudged, that a general forbearance is a good consideration, whether the party promising be liable or not. . . . And Hyde Chief Justice held, that a forbearance to sue one who fears to be sued, is a good consideration; and he cited a case in the Common Pleas, when he sate there where a woman who feared that the dead body of her son would be arrested for debt, promised in consideration of forbearance, to pay; and it was adjudged against her, though she was neither executor nor administrator. But of this the other Judges doubted.

Harvy v. Gibbons, 2 Lev. 161 (27 & 28 Car. II). Error or a judgment in Shrewsbury Court, where the plaintiff declared, that he being bailiff to J. S. the defendant in consideration that he would discharge him of £20 due to J. S. promised to expend £40 in repairing a barge of the plaintiff's; verdict and judgment for the plaintiff, upon non assumpsit was reversed, the consideration being illegal, for the plaintiff cannot discharge a debt due to his master.

Tripps v. Rand, 2 Lev. 198 (29 Car. II.) Assumpsit in consideration the plaintiff at the defendant's request would procure himself to be made a knight at his own proper charges, so that his wife, the defendant's daughter, might be a lady, to pay him £2,000 and says, that he procured

himself to be knighted at his own charges, whereby his wife became a lady; yet the defendant had not paid him. After verdict and judgment upon non assumpsit in Com. Banc. it was now assigned for error in B. R. that it is not said the plaintiff procured himself to be knighted at the request of the defendant: it might be he did it of his own head, and the request here is part of the consideration, executory and traversable, and by omitting it the plaintiff (defendant?) hath lost his traverse of the request; and upon non assumpsit he was not obliged here to prove a request upon evidence, as are the cases in Hob. 88, 106, and for authority in point, 2 Leon. 53. 3 Leon. 91. Curia contra, The request shall be intended here to be made at the time of the promise; scil. that he then requested him to be made a knight, and promised to give him £2,000 and it shall not be intended that he promised to give him the £2,000 if he would procure himself to be made a knight when he should afterwards request him, and so the request is not executory, but executed at the time of the promise made: and they gave rule to affirm the judgment; but at the earnest motion of Jones Attorney-General, to be farther heard for the plaintiff in error, it was adjourned until next term, when the judgment was affirmed by the whole Court.

Dutton and Wife v. Poole, 2 Lev. 210 (29 Car. II). Assumpsit, and declares, that the father of the plaintiff's wife being seised of a wood which he intended to sell to raise portions for younger children, the defendant being his heir, in consideration the father would forbear to sell it at his request, promised the father to pay his daughter, now the plaintiff's wife, £1,000, and avers, that the father at his request forebore, but the defendant had not paid the £1,000. After verdict for the plaintiff upon non assumpsit, it was moved in arrest of judgment, that the action ought not to be brought by the daughter, but by the father; or if the father be dead, by his executors; for the promise was made. to the father, and the daughter is neither privy nor interested in the consideration, nothing being due to her: also the father, notwithstanding this agreement with the son, might have cut down the wood, and then there was no remedy for the son, nor could the daughter have released the promise, and therefore she cannot have an action against him for not performing the promise, and divers cases were cited for the defendant, as Yelv. Rippon v. Norton, Hawes v. Leader, Starky v. Milner, 1 Roll. 31, 32, Sty. 296, and a

case lately resolved in Com. Banc. inter Norris v. Pine, intrat. Hill 22 & 23 Car. II, 1538, where the case was; If you will marry me, I will pay your children so much; and the action being brought by the children, adjudged it lay not. On the other side it was said, if a man delivers goods or money to H. to deliver on pay to B., B. may have an action, because he is to have the benefit of the bailment; so here the daughter is to have the benefit of the promise: so if a man should say, Give me a horse, I will give your son £10, the son may bring an action, because the gift was upon consideration of a profit to the son; and the father is obliged by natural affection to provide for his children; for which cause affection to children is sufficient to raise a use to them out of the father's estate; and therefore the daughter had an interest in the consideration; and in the promise; and the son had a benefit by this agreement, for by this means he hath the wood, and the daughter is without a portion, which otherwise in all probability the son would have been left to pay, if the wood had not been cut down, nor this agreement between him and his father, and for authorities of this side. were cited, Roll. 1 Ab. 31, Oldman v. Bateman, and ibid. 32, Starky v. Meade. Upon the first argument Wylde and Jones Justices seemed to think, that the action ought to be brought by the father and his executors, though for the benefit of the daughter, and not by the daughter, being not privy to the promise, nor consideration. Twysden and Rainsford seemed contra; and afterwards two new Judges being made, scil. Scroggs Chief Justice in lieu of Rainsford, and Dolbin in lieu of Twysden, the case was argued again upon the reasons aforesaid; and now Scroggs Ch. Just. said, that there was such apparent consideration of affection from the father to his children, for whom nature obliges him to provide, that the consideration and promise to the father may well extend to the children: and he and Jones remembered the case of Norris & Pine; and that it was adjudged as aforesaid. But Scroggs said, he was then and still is of opinion contrary to that judgment. Dolben, Justice, concurred with him that the daughter might bring the action; Jones and Wylde haesitabant. But next day they also agreed to the opinion of the Chief Justice and Dolben; and so judgment was given for the plaintiff, for the son hath benefit by having of the wood, and the daughter hath lost her portion by this means. And now Jones said, he must confess he was never well satisfied with the judgment in Norris

& Pine's case; but being it was resolved, he was loth to give his opinion so suddenly against it. And nota, upon this judgment error was immediately brought; and Trin. 31 Car. II., it was affirmed in the Exchequer-Chamber.15

It may perhaps be worth while to append to these cases for purposes of comparison the definition of "valuable consideration" given in the Exchequer Chamber in Currie v. Misa, (1875) 44 L. J. Ex. 94-the modern locus classicus" on the subject:

"A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility, given, suffered, or undertaken by the other."

There are other matters which might be dwelt upon in the cases during the period under discussion-such as the relative fields of the actions of debt and assumpsit and the like but they are, as a rule, of too technical a character to be of much profit to a modern lawyer. I must say, in conclusion, that I am most grateful to my historical friend for suggesting to me this task. I have found it very interesting. The period in question is probably not of so great interest to an historian as the earlier periods dealt with by such students as Maitland, Pollock and Holdsworth in this country. To a lawyer, however, it is of quite equal interest; as it is a time when legal ideas are beginning to emancipate themselves from legal forms, and, under the influence of such great intellects as Chief Justices Holt and Hale, are beginning to assume definite and logical form. Anyone who reads the cases set forth above, will I think, be struck with the modern way in which the legal questions are handled. I do not apologize for setting the cases out at length. I am more convinced every day that no one can really understand the English Common Law until he knows something about the English forms of action and their history, and that the first thing to be done in reading an old case is to find out exactly what the form of action is, and why that form was adopted.

15 See Sir T. R. 302.

FRANCIS R. Y. RADCLIFFE.

Notwithstanding that this is a decision of the Exchequer Chamber it is clearly no longer law in England. See per Wightman, Crompton and Blackburn, J.J., in Tweddle v. Atkinson (1861). 1 B. & S. 393. The modern rule is that no stranger to the consideration can take advantage of a contract, although made for his benefit.