From such consideration no benefit can by any implication be conferred on the defendant; and the law will not notice an act, the completion of which is obviously ridiculous and impracticable. Upon such a consideration, therefore, no contract can be made, or any claim to damages be supported. And, if the consideration be a promise that A. shall go from Westminster to Rome, in three hours; or other matter which no person can by any possibility perform.

And a promise is not binding, if the consideration for making it be of such a nature, that it was not, in fact or law, in the power of the promisee, from whom such consideration moved, to complete such consideration, and confer the full benefit meant to be derived therefrom; at least if the performance of the act would not have been justifiable.

"Error of a judgment in Shrewsbury court, where the plaintiff declared, he being bailiff to J. S., the defendant, in consideration that he would discharge him of 201. due to J. S., promised to expend 407. in repairing a barge of the plaintiff's; - verdict and judgment for the plaintiff, upon non assumpsit, were reversed; the consideration being illegal, for the plaintiff cannot discharge a debt due to his master (k)."

A promise was made by the defendant, to the assignees of a bankrupt, when the latter was on his last examination, that in consideration that the assignees would forbear to have the bankrupt examined, and that the commissioners would desist from taking such examination, touching monies alleged to have been received by the bankrupt, and not accounted for, he, the defendant, would pay such monies to the assignees. This promise was held by the court to be illegal, as being against the policy of the bankrupt laws. And Lord Kenyon observed, "I do not say that this is nudum pactum: but the ground on which I found my judgment is this, that every person who in consideration of some advantage, either to himself, or to another, promises a benefit,

160. 66

tit. Faits, 37; Co. Lit. 206 a, b ; 2 Bla. Com. 341; Shep. Touch. 164; 2 Bro. R. 311; 1 Powell on Contracts, Every condition of a thing impossible is null, and renders null the agreement which depends thereon. The condition of not doing an impossible thing, does not render null the obligation contracted subject to such

obligation." Code Napoleon, B. 3, tit. 3, ch. 4, s. I. When the performance of a promise is excused, the act being afterwards impossible; post, Index, tit. Performance.

(k) Harvey v. Gibbons, 2 Lev. 161. This decision may, however, be rested solely on the ground of illegality of

consideration.

E

50

must have the power of conferring that benefit up to the extent to which that benefit professes to go, and that not only in fact, but in law. Now the promise made to the assignees in this case, which was the consideration of the defendant's promise, was not in their power to perform, because the commissioners had nevertheless a right to examine the bankrupt. And no collusion of the assignees could deprive the creditors of the right of examination which the commissioners would procure them. The assignees did not stipulate only for their own acts, but also that the commissioners should forbear to examine the bankrupt; but clearly they had no right to tie up the hands of the commissioners by any such agreement." And Ashurst, J., observed, "In order to found a consideration for a promise, it is necessary that the party by whom the promise is made, should have the power of carrying it into effect, and secondly, that the thing to be done should in itself be legal. Now it seems to me that the consideration for this promise is void, on both these grounds. The assignees have no right to controul the discretion of the commissioners, and it would be criminal in them to enter into such an agreement, because it is their duty to examine the bankrupt fully, and the creditors may call on them to perform it. And for the same reason the thing to be done is also illegal (7)."

A declaration stated that by agreement between the plaintiff and G. G., the plaintiff agreed to sell and deliver to G. G. a lace machine for 2207. to be paid thus: 407. on delivery, and the residue by weekly payments of 17., which were to be paid to the defendant as trustee for the plaintiff, and in case of any default, the plaintiff was to have back the machine, and in consideration of the premises, and of the plaintiff at the request of the defendant appointing him to receive the weekly instalments, the defendant promised to take the machine and pay the balance, should there be any default by G. G. in the weekly payments. It was held that this promise was nudum pactum, and void. And by the court, "The declaration affects to shew the legal operation of the agreement. Now that states that the agreement bound the defendant to take the machine, not the plaintiff to deliver it. The declaration does not even show that it was in the plaintiff's power to deliver the machine, for it is not stated that he had ever got it

(1) Nerot v. Wallace, 3 T. R. 17.

back from the original vendee. There certainly is an allegation of willingness to let the defendant take the machine, but that does not appear to have been in pursuance of any pre-existing agreement, nor does the whole import any obligation on the plaintiff to let the defendant take it. The declaration is therefore bad, no sufficient consideration for the defendant's promise being shewn (m)."

But a promise is not void against the party who makes it, merely because its execution is improbable, or difficult; or the impossibility of performing it applies only to the promiser individually. If a party, by his own contract, lay a charge upon himself, he is bound to perform the stipulated act, or pay damages for the non-completion, unless the matter were at the time manifestly and essentially impracticable. The improbability of the performance, does not render the promise void. It is the duty of the contracting party to provide against contingencies; and he is presumed to know whether the completion of the duty he undertakes be within his power (n). Some instances of this rule will be given hereafter (o).

It is upon this principle that an engagement upon a sufficient consideration, for the performance of an act even by a third person, is binding, although the performance of such act depends entirely on the will of the latter. Thus a promise to procure the consent of a landlord to the assignment of a lease, is binding (p). And where one of several parties in a firm agreed to introduce the plaintiff (a stranger) into it, it was decided that the agreement was valid; although the other parties were ignorant of its existence, and their assent was of course essential to the admission of the plaintiff (q).

OF CONSIDERATIONS VOID IN PART.-We shall have occasion hereafter to consider the effect of a partial illegality of consideration. With respect to one of several professed considerations for a promise being simply frivolous and insufficient of itself, without being

(m) Bates v. Cort, 4 B. & C. 474; 3 D. & R. 676, S. C.

(n) See Co. Lit. 206 a, n. 1, 179 a; Platt on Cov. 569; 3 Chit. Com. L. 101; Blight v. Page, 3 B. & P. 296, note; Worsley v. Wood, 6 T. R. 718, 719, per Lord Kenyon, C. J.; see post, Index. tit. Performance.

or

(0) And see ante, 49. A condition to a bond, &c., that it will rain to morrow, that the Pope shall be at Westminster on such a day, is good. Vin. Ab. Condition (D) a; cites 22 Ed. 4, 26.

(p) Lloyd v. Crisp, 5 Taunt. 249. (q) M'Neill v. Reid, 2 Moor & S 89; 9 Bing. 68, S. C.

illegal, it appears that this partial defect shall not annul the contract; there being an adequate consideration left to support it; and that in pleading the insufficient consideration should be omitted as surplusage (r); as if the promise be in consideration not only of the forbearance of a debt due from the defendant to the plaintiff, but also of the forbearance of another claim which could not be sustained (s). So where in assumpsit on the warranty of a horse, the consideration stated for the warranty was, that the plaintiff would purchase the horse for 631.; but the consideration proved was that the plaintiff would pay that sum, and if the horse was lucky would give the plaintiff 57., or the buying of another horse; it was held not to be a variance to omit the conditional promise, it being too vague to be binding (t). But if a parol promise be entire, and part of it relate to a matter which renders it necessary, under the statute of frauds, that there should be a written agreement, the whole promise is void. The promise being entire, and part of it being void, the whole is defective; so that the plaintiff cannot proceed even as to that portion of it which need not be in writing (u).

OF THE CONSIDERATION IN REGARD TO TIME.—In respect of time, a consideration is either, 1st, executed, or something done before the making of the defendant's promise; 2ndly, executory, or something to be done after such promise; 3rdly, concurrent, as in the case of mutual promises; and 4thly, continuing (x).

1. A past, or executed consideration is,not, in general, sufficient to support an express promise, unless such consideration was moved by the precedent request, either express, or under the particular circumstances to be implied, of the party promising; and such request must always be laid in the declaration (y). Therefore, where A.'s servant was arrested for a trespass, and J. S., who

(r) See 1 Chit. Pl. 5th ed. 323. 328. 262; Comyn on Contr. 20; Vin. Ab., Actions of Assumpsit (Y); Com. Dig., Action, Assumpsit (B) 13; Bul. N. P. 147; Bradburne v. Bradburne, Cro. El. 149; per Cur. in Tisdale's Case, Id. 758, 9; and in Coulson v. Carr, Id. 849; Crisp v. Gamel, Cro. Jac. 128: Best v. Jolly, 1 Sid. 38; Pikard v. Cottell, Yelv. 56.

(s) Id.

(1) Guthing v. Lynn, 2 B. & Ad.

232.

(u) Levington v. Clark, 2 Ventr. 223; Chater v. Becket, 7 T. R. 201; Thomas v. Williams, 10 B. & C. 664; see Wood v. Benson, 2 C. & J. 94. This is fully considered hereafter.

(x) See 1 Chit. Pl. 5th ed. 323; Payne v. Wilson, 7 B. & C. 425; Id. 427, per Littledale, J.; 3 Chit. Com. L. 70.

(y) 1 Saund. 264, note (1); 3 Chit. Com. L. 70; 1 Chit. Pl. 5th ed. 323; Streeter v. Horlock, 1 Bing. 34; 7 Moor, 283, S. C.

knew A., without his knowledge bailed the servant, and afterwards A., for his friendship, promised to save him harmless; it was held that the promise was void: because the bailing, which was the consideration, was the voluntary courtesy of J. S., and was past and executed before (z). And a promise without any new consideration to pay the debt of a third person already incurred, falls within the same principle (a). But where the plaintiff's act is procured by the defendant's request, the subsequent promise is not a naked one, but couples itself with the precedent request, and is therefore founded on a good consideration (b) as if, in the instance last put, the third person were credited at the instance of the defendant (c). In general, where the defendant has derived no benefit from the plaintiff's acts, the prior request must be expressly proved (d). But where a party has derived a manifest personal (e) benefit from the precedent consideration, and subsequently promises payment, this promise will be tantamount to, and evidence of, a prior request, which shall in such case be implied (f). As where A. pays a sum of money, to a third person, for B., without his knowledge or request, and B. subsequently promises payment, here the circumstances furnish evidence of a prior request. So, if A. buy goods for B. without his sanction, yet B. subsequently receives the goods with knowledge of the circumstances, a prior request from B. to A. to order the goods for him shall be implied (g).

We have already seen that an existing moral obligation is, in general, a sufficient consideration for a subsequent express promise (h).

An executed consideration is the groundwork or foundation of the promise on which the defendant is charged; but, being only matter of inducement, it need not, in pleading, be stated with the same degree of certainty and particularity, as is necessary in the case of an executory consideration (i). But care must be taken to avoid a variance in stating and reciting a prior contract which