present day, that they do not form a sufficient consideration for a promise (k).

In Halliday v. Atkinson (1), which was an action on a promissory note, against the executor of the maker, it appeared that the note was made in favour of the plaintiff, then an infant aged nine years, by the testator, who was intimate with the father of the plaintiff, and who was in an imbecile state, but there was no evidence of consideration. The court held that gratitude to the plaintiff's father, or affection for the plaintiff, did not form a sufficient consideration.

The education of a child by its parent is only a duty of imperfect obligation; and it seems therefore, that a person cannot recover from the parent expenses incurred in educating his children, unless there be an express contract, or peculiar circumstances from which a promise of repayment can be inferred (m).

A gift is not good and binding unless it be by deed, or unless the thing which forms the subject of the gift, be actually delivered to the donee (n). To give effect to a promise, merely because there was an imperfect obligation, would be to contradict this doctrine. It is clear that a promise cannot be implied from a mere moral obligation.

Many instances of mere gratuitous promises have already been given (o); it will be useful to subjoin others.

If the master of a ship promise his crew an addition to their fixed wages, in consideration of and as an excitement to their extraordinary exertions during a storm, this promise is nudum pactum―the voluntary performance of an act which it was before legally incumbent on the party to perform, being in a law a worthless and insufficient consideration (p).

The law does not, at least in general, allow a compensation

S. C.

(m) Hodges v. Hodges, Peak Add. C. 79; cor. Lord Kenyon.

(n) Irons v. Smallpiece, 2 B. & Ald. 558; Hewlins v. Skippam, 5 B. & C. 228; 2 Saund. 47 a, note. See Clay v. Willis, 1 B. & C. 364; 2 D. & R. 539, S. C., in which a promise to pay the plaintiff a sum he was not strictly entitled to, was held void.

(0) Ante, 32, 33; 41.

(p) Harris v. Watson, Peake's R. 72; Newman v. Walters, 3 B. & P. 612.

to a witness for loss of time, in attending a trial upon subpœna; it being a duty imposed upon him by law to obey such subpœna: and therefore a promise to pay such remuneration, in consideration of the party's attendance, is not binding (q).

And a promise, even in writing, to pay a debt already incurred by a third person is not available, if there be no new consideration, as forbearance to sue the latter, &c.; but if credit were originally given to the third person at the promiser's request, this might constitute a sufficient consideration for his subsequent guarantee (r).

And a promise by a creditor to accept less than the full amount of his demand, or to give time for his existing debt, is void; unless there be some new consideration, as an additional or different security, or a payment varying from that agreed upon, in respect of its being effected in a manner, or at a time, more beneficial to the creditor; or unless an uncertain claim be reduced to a certainty; or unless the creditor's engagement to take less than his demand, or give time, be contained in a composition deed, or agreement entered into by the debtor with his creditors generally (s). In the latter case, it would be a fraud on other creditors, to sue the debtor for the remainder of the claim.

It appears that if a party to a bill or note be not liable thereon to a creditor, in consequence of such creditor, to whom he indorsed it for a debt, having lost the instrument, a promise by the former to pay it, is not founded on a sufficient moral obligation to render him liable on such promise; there being no new consideration, as an indemnity, &c. (t).

The cases relative to promises by executors to pay legacies will be considered hereafter. Where the plaintiff declared that the defendant, (who was sued in his individual character,) was liable in his capacity of executor to pay a certain debt to the plaintiff; and then averred that in consideration thereof, he (personally) promised payment, the Court held that the declaration was substantially bad, and arrested the judgment; no additional or new

(q) Willis v. Peckham, 1 B. & B. 515; 4 Moore, 300, S. C.; per Lord Tenterden, C. J., in Collins v. Godefroy, 1 B. & Ad. 956, 7. See 7 Bing. 729; 9 B. & C. 872.

(r) 1 Rol. Ab. 27, pl. 49; and see Fell on Merc. Guar. 36 to 40; Lyon v. Lamb, there cited. See post, Index, tit. Guarantee.

(s) See the cases cited, 3 Chit. Com. L. 68; and post, Index, tit. Payment and Composition; and Philpot v.Briant, 4 Bing. 717; 1 M. & P. 754, S. C.

(t) Davis v. Dodd, 4 Taunt. 602; per Park, J.; Champion v. Terry, 7 Moor, 136; Hansard v. Robinson, 7 B. & C. 90; ante, 28.

consideration being shewn for the enlarged responsibility arising from the promise (u). And upon the same principle, a declaration against a husband alone on his promise to pay the debt of his wife contracted before marriage, without shewing any new consideration, was also considered insufficient, and the judgment was arrested (x). The consideration should be co-extensive with the promise, in order to support it.

OF THE PLAINTIFF BEING A STRANGER TO THE CONSIDERATION.-The cases seem to have been contradictory upon the question whether a person can sue upon a promise, even though it be professedly for his benefit, where HE is an entire stranger to the consideration, that is, has taken nothing of trouble or charge upon himself, or occasioned any benefit to the promiser, but such trouble has been sustained, or advantage conferred, by a third person. The contract is in such cases binding, there being a sufficient consideration; and the only difficulty is, who should be made the plaintiff, the party with whom the agreement was made and from whom the consideration moved; or the party meant by him to be benefited, and for whose advantage the act stipulated for is to be performed? It is clear, that if the actual promisee be a mere agent for the person to be benefited, the latter may sue upon the agreement, though not known at the time to have been interested therein (y). But if no such agency exist, there seems to be great difficulty in permitting an entire stranger to the consideration, to enforce the performance of the contract, by action in his own

name.

Many of the older authorities tend to negative a right of action in a stranger to the consideration for a contract, although he is the party avowedly intended to be benefited by the promise (z). And in Crow v. Rogers (a), where the plaintiff declared that Hardy being indebted to him in 707., it was agreed between

(u) Rann v. Hughes, 7 T. R. 350, note (a); cited ante, 4, 5, note (q). (x) Mitchinson v. Hewson, 7 T. R. 848. See 1 Taunt. 212; and post.

(y) See Scrimshire v. Alderton, Stra. 1182; Coppin v. Walker, 7 Taunt. 237; Morris v. Cleasby, 1 M. & Sel. 579, 581; Hornby v. Lacy, 6 id. 166; post, Principal and Agent. The dicta in Marchington v. Vernon, 1 B. & P. 101, note (c), per Buller, J.; and in The Fellmongers' Company v. Davis,

1 B. & P. 102, per Lord Alvanley, C. J., that if a promise be made to another for the benefit of a third person, the latter may sue thereon, seem to have reference only to cases in which the promisee received the promise, and made the contract, only as agent.

(z) See the cases collected in 1 Vin. Ab. 333 to 337, Actions of Assumpsit, (Z); Browne v. Mason, 1 Ventr. 6. (a) Stra. 592.

Hardy and the defendant, that the defendant should pay the money to the plaintiff, and that Hardy should make the defendant a title to a house; and that Hardy was ready to do so, and in consideration thereof the defendant promised to pay the plaintiff; the Court, "without much debate, held that the plaintiff was a stranger to the consideration, and gave judgment for the defendant." This case was recognized by the Court in Price v. Easton (b); in which it appeared that one W. P. was indebted to the plaintiff, and agreed with defendant to do work for him, and defendant agreed to retain the price of such work for the plaintiff; and the Court arrested the judgment, after verdict, upon the ground that although the declaration averred that the defendant agreed to pay the plaintiff, it could not be collected therefrom that the defendant made any such agreement with the plaintiff, or that the three parties were jointly privy and assenting to the arrangement. There are, however, many old cases which seem to support a contrary doctrine. Thus, it has been decided, that if A. give goods to B. of the value of 801., on condition that he pay 201. to C., the latter may sue B. for the 20%., for it became a debt to C. (c). So it has been held, that if A., who is the uncle of B. an infant, deliver 12/. to J. S. to educate B., and in consideration thereof J. S. promises to educate B., and also at his full age to pay to him, B., the said 127.; B., when he comes to his full age, may maintain an action against J. S. for the 12., “for the use of the money in the mean time was the consideration of the education, and the money was to be paid to B. (d)." A father was seised in fee of land, and was about to cut timber therefrom, to raise a portion for his daughter. The defendant being his son and heir, promised the father, in consideration that he would forbear to fell the timber, to pay the daughter this portion. It was decided by the Court of King's Bench, and afterwards by the Exchequer Chamber upon a writ of error, that the daughter might sue the son for the recovery of this money, although the consideration moved from the father to the son; the parties to the

(b) 1 Nev. & Manning, 303; 4 B. & Ad. 433, S. C.

(c) Starkie v. Milne, M. T. 1651; 1 Rol. Ab. Action sur Case, 32, pl. 13. See id. 27, (L) 40; 31 (L) 5. Com. Dig. Action upon the Case upon Assumpsit, (B) 15'; Disbourne v. Denabie,

1 Rol. Ab. p. 30, 31, pl. 5; 1 Vin. Ab. 333, pl. 5.

(d) Between Oldham and Bateman, Pasch. 13 Car., B. R., upon a motion in arrest of judgment; 1 Vin. Ab. 334, 5.

contract having the benefit of the daughter in view (e). In the two latter instances, the Court may probably have been in some degree influenced by the circumstance that the promisee, and the person for whose advantage the contract was made, were intimately related. But perhaps the cases do not require such ground of support ().

"It is not necessary," said Lord Alvanley, C. J., "to discuss whether, if A. let laud to B., in consideration of which the latter promises to pay the rent to C., his executors and administrators, C. may maintain an action on that promise. I have little doubt however, that the action might be maintained, and that the consideration would be sufficient upon this point. It appears to me that C. would be only a trustee for A., who might for some reason be desirous that the money should be paid into the hands of C. In case of marriage, it is often necessary to make contracts in this manner, and the personal action is given to the trustee for the benefit of the feme covert (g).

Perhaps it is an argument against giving a stranger to the consideration, a right to sue upon the contract in his own name, that he is, as between himself and the promisee, merely in the light of an intended donee; and no doubt an unexecuted gift, or mere gratuitous promise to confer a benefit, may be revoked. In other words, the party who has entered into the contract, and provided the consideration, ought, it seems, to be at liberty to withdraw his intended bounty from the third person, before it has been received; and this can only be effected by vesting solely in the former, the right of acting thereon.

In the case of deeds and other specialties, inter partes, it is clear that the action must be brought by and in the name of the person who is a party to the instrument, and that a third person, a stranger to the deed, cannot sue thereon; although the covenant be made expressly for his advantage (h).

OF IMPOSSIBLE CONSIDERATIONS.-The consideration is insufficient, if its performance be utterly and naturally impossible (i).

(e) Dutton v. Poole, M. 29 Car. 2; 1 Ventr. 318, 332; S. C. in 2 Lev. 210; Sir T. Ray, 302, and Sir T. Jones, 102. Recognised by Lord Mansfield in Cowp. 443, and by Burrough, J., in 5 Moore, 31, 2.

(f) And see Carnegie v. Waugh, 2 D. & R. 277; 4 B. & C. 664, S. C.;

3 B. & Ald. 280, 1; 1 Chit. on Pl. 5th ed. 5, 6.

(g) Per Lord Alvanley, C.. J., in Pigott v. Thompson, 3 B. & P. 149.

(h) 1 Chit. Pl. 5th ed. 3, 4; Lord Southampton v. Brown, 6 B. & C. 718. (i) 5 Vin. Ab. 110, 11, Condition, (C) a (D) a; 1 Roll. Ab. 419; Bro. Ab.