question whether there be a debt or not, it will be otherwise (y). And, in a very recent case, where a son had given to his father a promissory note, and, to an action brought by the father against him upon it, he pleaded that he had just ground to complain of the distribution which the father had made of his property, as the father had admitted; and that it was thereupon agreed between them that the son should cease for ever to make any such complaint; and that the father would discharge him from liability on the note, and the cause of action in respect thereof; and that such agreement should be accepted in satisfaction of the note: the Court of Exchequer clearly held, that there was no consideration for the agreement of the father (z). I think that I have now sufficiently explained what it is that the law recognises as a consideration sufficient to support a promise without deed. I must not, however, conclude without noticing one class of cases which form a species of exception to the rule that a simple contract requires a consideration to support it. I allude to the case of a negotiable security, as a bill of exchange, or promissory note. These, not being under seal, are simple contracts; but there is this marked distinction between (y) Edwards v. Baugh, 11 M. & W. 641. See also Clutterbuck v. Coffin, 3 M. & Gr. 842; and England v. Davidson, 11 Ad. & E. 856; Wade v. Simeon, 2 C. B. 548; Liver- (2) White v. Bluett, 23 L. J. the situation in which they and that in which any other simple contract stands, namely, that they are always presumed to have been given for a good and sufficient consideration, until the contrary is shown. And even if the contrary be shown, still, if the holder for the time being have given value for the instrument, his right to sue on it cannot be taken away by showing that the person to whom it was originally given could not have sued, unless something further be shown affecting his personal right, as that he had knowledge of the circumstances, or that he took the security when overdue, which places him in the same situation as the party from whom he took it. But so long as nothing of that sort appears, every note and acceptance is primá facie taken to have been given for good consideration, and every indorsement to have been made on good consideration. Promissory notes and Bills of Exchange, said Bayley, B., in giving judgment in Ridout v. Bristow (a), prima facie import a consideration, and it is not necessary to give evidence of it aliunde. But it is insisted, that as the note in question imports upon the face of it a peculiar description of consideration, that circumstance varies the general rule, and throws the burthen of proving consideration upon the plaintiff, and it is argued that the note is void upon the face of it, for want of expressing assets or forbearance. It is perfectly (a) 1 C. & J. 231. clear, that if, instead of taking a note, you take from a third person a written security, which cannot be supported without proof of consideration, that security must, upon the face of it, import a consideration (b), and there must be evidence to prove such a consideration. But, you may bind yourself by an instrument which in its form imports consideration without expressing it or proving it aliunde. The cases upon the Statute of Frauds do not apply to the present, nor do the cases in which it has been held that a promise to pay the debt of a third person without consideration is nudum pactum. It is just that a promise to pay that which I am under no legal or moral obligation to pay, should be considered as nudum pactum, but this does not apply to an instrument importing a consideration, and which may induce forbearance to one party. I am therefore of opinion that in this case a consideration must be taken to exist, and that the maker of such an instrument is at least prima facie liable to pay it. See the cases collected, Byles on Bills, last ed. ; Bayley on Bills, by Dowdeswell; and Smith's Mercantile Law, last ed., by Dowdeswell. (b) See now 19 & 20 Vict. c. 97, s. 3; ante, 103. 168 consideration. LECTURE V. CONSIDERATION OF SIMPLE CONTRACTS.-EXECUTED CONSIDERATIONS. AND PROMISES ARE OF AVAIL.-MORAL CONSI- OF TRADE. I ENDEAVOURED to explain in the last lecture what it is that the law of England recognises as a consideration sufficient to support a promise without deed. I stated that any benefit to the person who makes the promise, or any loss, trouble, or disadvantage undergone by or charge imposed upon the person to whom it is made, will satisfy the rule of law in this respect. In order to render this as clear as possible, I am about, before proceeding to the next branch of the subject, to illustrate it by mentioning a few decided cases, in which certain considerations have been held sufficient to support the promises founded on them. Forbearance a It has been frequently decided, that, if one man have a legal or equitable right of suit against another, his forbearance to enforce that legal or equitable right of suit is a sufficient consideration for a promise either by the person liable to him or by any third person, either to satisfy the claim on which that right of suit is founded, or to do some other and collateral act. Thus, where (a) the plaintiff in an action of assumpsit stated in his declaration that he was the assignee of a bond for £728. 2s. 6d., in which the defendant was the obligor, and that, in consideration that the plaintiff would receive payment on certain specified days, and forbear proceeding in the meanwhile, the defendant had promised to pay on those days; after a verdict for the plaintiff, it was objected, in arrest of judgment, that there was no consideration for the promise; for that, if an action had been brought in the name of the obligee of the bond, the agreement of the assignee to forbear would have been no defence, upon a ground which I have already sufficiently explained, namely, that an obligation by deed cannot be discharged by an agreement without deed. The Court, however, decided that the consideration was sufficient; "for," said the Lord Chief Justice," although the agreement to forbear would not be pleadable to an action in the name of the obligee, yet, unless the plaintiff did forbear according to his agreement, he would not be able to sue on the defendant's promise." Thus again, where (b) the plaintiff, who had been appointed by the Court of Chancery a receiver of the debts and (a) Morton v. Burn, 7 A. & Bing. 5; Parker v. Leigh, 2 E. 19. Stark. 229; Atkinson v. Bayn(b) Willatts v. Kennedy, 8 tun, 1 Bing. N. C. 444. |