wherein the plaintiff declared, that whereas the defendant assumed safely and securely to take up several hogsheads of brandy, then in a certain cellar in D., and safely and securely to lay them down again in a certain other cellar in W.; the said defendant and his servants and agents, so negligently and improvidently put them down again into the said other cellar, that, for want of care in the defendant, his servants, and agents, one of the casks was staved, and a great quantity of brandy was spilt; a motion was made in arrest of judgment, because it was not alleged in the declaration, that the defendant was a common porter, nor averred that he had any thing for his pains. And as to the objection that there was no consideration to ground the promise upon, and that the undertaking was nudum pactum, Holt, C. J., and the rest of the court answered, that the owner's trusting the bailee with the goods, was a sufficient consideration to oblige him to a careful management. Indeed, if the agreement had been executory, to carry these brandies from one place to another such a day, the defendant had not been bound to carry them; but this was a different case, for assumpsit did not only signify a future agreement, but in such a case as this, it signified an actual entry upon the thing, and taking the trust upon himself. And if a man will do that, and miscarries in the performance of his trust, by reason of gross neglect, an action will lie against him for that, though nobody could have compelled him to do the thing.

The case of Whitehead v. Greetham (g), is a strong authority upon this subject. The declaration was not in case for a tort, as in some of the instances before referred to, but in assumpsit. One of the counts stated, that the plaintiff had retained the defendant at his request, to lay out 7007. in the purchase of an annuity; that the defendant promised to use due care to lay out the money securely; that the plaintiff, confiding, &c., delivered the money to the defendant for that purpose; but that he laid it out on insufficient security, &c. On error, in the Exchequer Chamber after verdict, it was held that the mere delivery of the money was a sufficient consideration for the promise; that it was not fatal to the count, that it did not shew that the defendant was to receive any reward for his services; and that if the consideration were insufficiently stated, no advantage could be taken of the defect after verdict.

(7) 10 Moore, 183; 2 Bing. 464; and M'Clel. & Y. 205, S. C.

And in the modern case of Elsee v. Gatward (r), this doctrine was fully recognised. It was an action upon the case. The first count stated that the plaintiff retained the defendant, who was averred to be a builder, to repair a house before a given day; that the defendant accepted the retainer, but did not perform the work, per quod the house was injured, &c.; and the court held, on special demurrer, that this count could not be supported, because it was for a mere nonfeasance, and it did not appear that the defendant was to receive any reward; that the defendant, though he was a carpenter, was not bound to do all work tendered to him; and that the word retained did not necessarily import consideration; and they said, that the count would have been bad, if framed in assumpsit. The second count stated, that the plaintiff being possessed of some old materials, retained the defendant, to perform the carpenter's work on certain buildings of the plaintiff, and to use those old materials; but that the defendant, instead of using those, made use of new ones, thereby increasing the expense. And this count for the misfeasance, was held to be good upon special demurrer. In a declaration on the case against a surgeon for improper treatment of the plaintiff, whereby he became worse, &c., it is sufficient to aver, that the defendant was a surgeon, and was retained and employed as such, (without shewing by whom,) "for reward to him," to treat and cure the plaintiff; and that the plaintiff entered upon the treatment; without shewing any undertaking by the defendant, or averring in words that it was his duty to act skilfully (8).

The late case of Dartnall v. Howard (t), also illustrates the law on this subject. The declaration was in assumpsit, and it was alleged, that in consideration that the plaintiff would retain and employ the defendants to lay out a sum of money in the purchase of an annuity, they undertook to do their duty; that plaintiff retained them, but defendants did not do their duty; but took insufficient security, whereby plaintiff lost the money. The Court held, on a motion in arrest of judgment, that the declaration was bad, because it did not state that any reward was to be paid to the defendants, or that they were employed as attorneys, or in any other particular character, so as to make them responsible for taking a bad security, although not guilty of negligence or

(r) 5 T. R. 143.
(s) Pippin v. Sheppard, 11 Price, 400.

(t) 6 D. & R. 438; 4 B. & C. 345,

S. C.

dishonesty. The Court observed that the word retained did not necessarily mean that the defendants were attorneys, or were to be remunerated; that the only duty imposed under the circumstances stated in the declaration, was a duty to act faithfully and honestly, not an absolute duty to take a sufficient security. There was not shewn to be a sufficient consideration for the promise and charge laid in the declaration.

ASSIGNMENT OF A DEBT OR RIGHT.-The assignment of a debt, even of an uncertain or unascertained amount, due from a third person, is a sufficient consideration for a promise by the assignee (u); although a chose in action is not assignable at law, so as to furnish the assignee with a right of suit, in his own name, against the debtor (a). For in equity, such assignment is good (y); and even a court of law will, for some purposes and in some respects, recognise such transfer (z). The party promising, in consideration of the assignment to him, therefore derives a benefit from it. And a promise by A. to B. to relinquish to him the benefit to be derived from a written agreement between A. and a third person for the purchase of a freehold house, and an engagement by A. to permit B. to become the purchaser, instead of A., constitute a sufficient consideration for B.'s promise to pay A. a sum of money. This is proved by the case of Price v. Seaman (a). The agreement for the purchase in that case was by parol, and was therefore void; and it was contended that the assignment was therefore inoperative, and the consideration failed. But the Court held that, after verdict, it was to be presumed that the agreement for the purchase was in writing; as it was averred in the declaration that the plaintiff had "bargained and agreed" for the purchase, and it was not shewn in the declaration that the contract for such purchase was verbal; and that the assignment of the advantages to be derived from such a written contract was a sufficient consideration. So the release of an equity of redemption is a good consideration for a promise. This was decided in Thorpe v. Thorpe (b).

(u) Mousdale v. Birchall, in the Exchequer Ch., in Error, 2 Bla. R. 820; Com. Dig., Action the Case upon upon Assumpsit, (B) 83; per Bayley and Holroyd, Js., in Price v. Seaman, 4 B. & C. 525. An assignment of a chose in action need not be by deed, Howell v. M'Ivers, 4 T. R. 690; Heath v. Hall, 4 Taunt. 326.

(x) Chit. B., 8th ed. 9. (y) Id. 8.

It was an action of assumpsit, and the declaration stated that the defendant held of the plaintiff certain lands by way of mortgage, and that it was agreed between them that the plaintiff should release his equity of redemption, in consideration of a sum of money to be paid by the defendant; and that although the plaintiff had performed the agreement on his part, the defendant had not paid the money. "It was contended, 1st, That there was not here a sufficient consideration to maintain the assumpsit, because the mortgagee, after the condition broken, has an absolute estate in the land, and the common law does not take notice of the equity of redemption, which is a mere proceeding in chancery, and therefore the release of it, after the condition broken, in the eye of the common law, cannot mend the title of him who had an absolute title before; and, of consequence, the release of it is no consideration. 2ndly, Admit that the law will take notice of the equity of redemption that the mortgagor hath, and that it is a thing valuable, and consequently the release of it a valuable consideration; yet, in this case, the plaintiff ought to have shewn how he was entitled to such equity of redemption; because, it may be that his equity of redemption was not valuable, and then the release of it will not be a valuable consideration, as if the mortgage was for the whole value of the land; or if this mortgage was made that the mortgagee should have the land until he was satisfied his money by perception of the profits; in this case, the mortgagor would have an equity of redemption, and yet it would not be valuable. But Holt, C. J., said, that the last case would not be a mortgage; and all the Court held, that, without doubt, a release of an equity of redemption is a very good consideration, and the common law will take notice that the mortgagor has an equity to be relieved in chancery."

THE PREVENTION OF LITIGATION, &c.-A consideration which has for its object the prevention of litigation, and the settlement of disputes between the parties, is also sufficient. This may be instanced by the ordinary case of a mutual submission of differences between parties, to arbitration: the mutual promises are a good consideration, although the submission may be revoked (a). But the submission must be mutually binding, or the consideration fails (b).

(a) Com. Dig. Action upon the Case upon Assumpsit, (A) 1, (B) 2, 9. Arbi

trament, (D); Watson on Arb. 23. (b) Ante, 14.

In Penn v. Lord Baltimore (c), a bill was filed in Chancery to enforce specific performance of articles of agreement under seal, entered into for the purpose of ascertaining and settling the boundaries of two provinces in America, and providing for mutual conveyances, &c. It was objected, amongst other things, that the agreement was merely voluntary, and that equity never decrees specifically without a consideration (d). Upon which the chancellor (Lord Hardwicke) observed, "that it is true that the Court never decrees specifically without a consideration; but that the agreement in question was not without consideration: for though nothing valuable was given on the face of the articles as a consideration, the settling boundaries, and peace and quiet, formed a mutual consideration on each side; and in all cases make a consideration to support a suit in Chancery, for performance of the agreement for settling the boundaries."

So the giving up a suit or proceedings, instituted to try a question respecting which the law is doubtful, is a good consideration for a promise to pay a stipulated sum; and therefore where a ship, having on board a pilot required by law, ran foul of another vessel, and proceedings were instituted by the owners of the latter to compel the owners of the former to make good the damage, and the former vessel was detained until bail was given, and pending such proceedings, the agents of the owners of the vessel detained, agreed, on the owners of the damaged vessel renouncing all claims on the other vessel, and on their proving the amount of the damage done, to indemnify them, and to pay a stipulated sum by way of damages; it was held, that there being contradictory decisions as to the point, whether ship-owners were liable for an injury done while their ship was under the controul of the pilot required by law, there was a sufficient consideration to sustain the promise made by the agents of the owners of the detained vessel, to pay the stipulated damages (e). And where certain stock of the plaintiffs was transferred under a forged power of attorney, and the Bank of England offered to replace the stock if the plaintiffs would first prove the amount under a commission of bankruptcy, issued against the firm in which the forger of the

(c) 1 Ves. Sen. 444; and see Stapilton v. Stapilton, 1 Atk. 3; Winman v. Roper, 1 Chan, R. 84.

(d) See ante, 5, note (r).

(e) Longridge v. Dorville, 5 B. & Ald. 117; observed upon in Walters v. Smith, 2 B. & Ad. 889.