To this general rule there is one exception. Payment or promise of payment of a smaller sum of money is not a sufficient consideration for an immediate obligation to pay a greater sum. See vol ii., 822.

As the consideration must have some value and reality, the assumption of a supposed danger or liability, which has no foundation in law or in fact, is not a valuable or sufficient consideration, (h) nor is the performance of that which the party was under a previous valid legal obligation to do; (i)1 and where one

(f) Thus, where an execution creditor proposed to discharge the execution, without putting it into an officer's hands, if the debtor would give his note for the debt and costs, and also the sum which an officer might charge for collecting the execution, and such note was given, payable in oats, at a very low price per bushel; the court held, that though the note was not usurious, yet it was unconscionable, and they deducted the sum included in the note as officer's fees from the amount of the verdict on the note. Cutler v. How, 8 Mass. 257. See Cutler v. Johnson, id. 266. - So, where the defendant hired a cow and calf of the plaintiff, and agreed to return them in one year, with six dollars for the use of them, and, if not then delivered, six dollars annually until delivered, it was held that the plaintiff was entitled to recover the value of the cattle, with six dollars for the use of them for one year only, and interest on that sum from the expiration of the year until the cattle were delivered. Baxter V. Wales, 12 Mass. 365.

(g) Best, C. J., in Homer v Ashford, 3 Bing. 327.

(h) Cabot v. Haskins, 3 Pick. 83.

(i) Harris v. Watson, Peake, Cas. 72; Stilk v. Myrick, 2 Camp. 317; Callagan v. Hallett, 1 Caines, 104; Willis v. Peck-ham, 1 Br. & B. 515; Collins v. Godefroy, 1 B. & Ad. 950; Sweany v. Hunter, 1 Murphey, 181; Smith v. Bartholomew, 1 Met. 276; Crowhurst v. Laverack, 16 E. L. & E. 497; s. c. 8 Exch. 208; L'Amo-reux v. Gould, 3 Seld. 349.

1 Such a previous legal obligation may be either to the promisee, to a third party, or to the public. In none of these cases will performance of the obligation or a promise to perform it serve as the consideration for the promise of another.

Instances of the first class where the previous obligation was to the promisee are the following: A promise made in consideration of the entire or partial payment of a debt immediately due is without consideration. Foakes v. Beer, 9 App. Cas. 605; Barron v. Vandvert, 13 Ala. 232; Thompson v. Robinson, 34 Ark. 44; Phoenix Ins. Co. v. Kink, 110 Ill. 538; Smith v. Tyler, 51 Ind. 512; State v. Davenport, 12 Ia 335; Pemberton v. Hoosier, 1 Kan. 108; Jenness v. Lane, 26 Me. 475; Emmitteburg R. R. Co. v. Donoghue, 67 Md. 383; Warren v. Hodge, 121 Mass. 106; Weber v. Conch, 134 Mass. 26; Carraway v. Odeneal, 56 Miss. 223; Willis v. Gammill, 67 Mo. 730; Ruse v. Hobbs, 61 N. H. 93; Watts v. Frenche, 19 N. J. Eq. 407; Parmelee v. Thompson, 45 N. Y. 58; Turnbull v. Brock, 31 Ohio St. 649; Pomeroy v. Slade, 16 Vt. 220, Smith v. Phillips, 77 Va. 548. See also vol. ii., Chapter on Payment.

A promise to pay the whole or part of a debt is, of course, equally ineffectual for a consideration as actual payment. Jones v. Waite, 5 Bing. N. C. 341; Tucker v Bartle, 85 Mo. 114; Smith v. Phillips, 77 Va. 548.

So, completing a railroad, already partly built, in accordance with a contract to build the whole, will not support a promise to pay additional compensation. A\ res v. Chicago, etc. R. R. Co., 52 Ia. 478. And where seamen have engaged to serve for a whole voyage, a promise to pay them extra wages if they will finish the voyage is nudum pactum. Stilk v. Myrick, 2 Camp. 317; Harris v. Watson, Peake, 72 , Fraser v, Hatton, 2 C. B. n. s. 512, Harris v. Carter, 3 E. & B. 559; Bartlett v. Wyman, 14 Johns. 260.

See also, as bearing out the general proposition, Jackson v. Cobbin, 8 M. & W. 790; Bayley v. Homan, 3 Bing. N. C. 915; Deacon v. Gridley, 15 C. B. 295; McCaleb v. Price, 12 Ala. 753; Ford v. Garner, 15 Ind. 298; Reynolds v. Nugent, 25 Ind Ritenour v. Mathews, 42 Ind. 7; McCarty v. Hampton Assoc., 61 Ia. 287; Conover v. Stillwell, 34 N. J. L. 54; Crosby v. Wood", 6 N. Y. 369; Vanderbilt v. Schreyer, 91 N.

Y. 392; Festerman v. Parker, 10 Ired. 474; Withers v. Ewing, 40 Ohio St. 400; Erb v. Brown, 69 Pa. 216; Cobb v. Cowdery, 40 Vt. 25.

In some States it has been held that if one party to a contract refuses to perform through mistake of the law acknowledges himself under an obligation which the law does not impose, he is not bound by unless promised some further pay or benefit than the contract provides, and such a promise is made, it is binding. The ground taken is that the making of the new promise shows a rescission of the original contract and the substitution of another. Bishop v. Basse, 69 Ill. 403; Cooke v. Murphy, 70 Ill; 96; (But see Nelson v. Pickwick, Associated Co., 30 Ill. App. 333; Goldsbrough v. Gable, (Ill. 1892); 29 N. E. Rep. 722); Coyner v. Lynde, 10 Ind. 282; Munroe v. Perkins, 9 Pick. 298; Holmes v. Doaue, 9 Cash. 135; Rollins v. Marsh, 128 Mass. 116; Moore v. Detroit Locomotive Works, 14 Mich. 266; Goebel v. Linn, 47 Mich. 489; Conkling v. Tuttle, 52 Mich. 130; (but see Endriss v. Belle Isle Ice Co., 49 Mich. 279; Widiman v. Brown, 83 Mich. 241); Lattimore v. Harsen, 14 Johns. 330. See also Stewart v. Keteltas, 36 N. Y. 388. The presumption of rescission upon which these cases rest seems an improbable one; the natural inference being that one party is endeavoring against the will of the other to escape from an unsatisfactory contract and to take advantage of the latter's necessities. In so far as a rescission is presumed without evidence that it in fact took place, the cases are at variance with the general principle and the authorities above cited.

Considerable discussion has arisen in regard to the second class of cases where the previous obligation is a contract with a third party. Admitting that mere performance of an act promised to A would not be a good consideration for the promise of B, it has been said that a promise to B to perform would be, for it is said that coming under an obligation to another person to do that act is a detriment and constitutes a good consideration, and it has been so decided in England. Scotson v. Pegg, 6 H. & N. 295. See also Shadwell v. Shadwell, 30 L. J. C. P. 145; Langd. Sum. Cont. § 84. But see Jones v. Waite, 5 Bing. N. C. 341, 351, 356, 359. On the other hand it has been pointed out that this argument begs the question by assuming that the second promise does create an obligation, which would not be the case unless that promise was itself a sufficient consideration for the counter promise, the very point in issue. And the attempt has been made to escape this difficulty by saying that the second promise is to be read as being or including a promise not to exercise the right of rescinding the original contract. Anson, Cont. (5th ed.) 89; Pollock, Cont. (5th ed.) 177. But this is not true in fact. The promise is to perform a certain act, not to refrain from rescinding the earlier contract. It may well be that one of the parties to the later contract does not even know of the existence of the earlier one, and it can hardly be doubted that in any event the party making the two promises might rescind the prior contract with the consent of his co-contractor, and yet be free from liability on his second promise if he actually performed the act promised. In this country it is generally held, and it is believed correctly, that such a second promise cannot serve as a consideration. Johnson's Adm. v. Sellers's Adm., 33 Ala. 265; Schuler v. Myton, 48 Kan. 282; Gordon v. Gordon, 56 N. H. 170; Bart-lett v. Wyman, 14 Johns. 260; Robinson v. Jewett, 116 N. Y. 40. And see Peelman v. Peelman, 4 Ind. 612; Reynolds v. Nugent, 25 Ind. 328; Brownlee v. Lowe, 117 Ind. 420; Putnam v. Woodbury, 68 Me. 58; Larsen v. Wyman, 14 Wend. 246; Stidham v. Sanford, 36 N. Y. Sup. 341; Pond v. Starkweather, 99 N. Y. 411; Merrick v. Giddings, 1 Mack. (D. C.) 394; Davenport v. Congregational Society, 33 Wis. 387. In most of these cases no distinction is made between a promise to perform what one is bound by contract with another to perform, and the actual performance of it. Both are held insufficient consideration.

The following are illustrations of the third class where the previous obligation is to the public.

Forbearance or a promise to forbear to commit a tort is not a good consideration. McCaleb v. Price, 12 Ala. 753; Botkin v. Livingston, 21 Kan. 232; Commonwealth v. Johnson, 3 Cush. 454; Callagan v. Hallett, 1 Caines, 104; Crosby v. Wood, 6 N. Y. 369; Robinson v. Jewett, 116 N. Y. 40; Tolhurst v. Powers, 133 N. Y. 460; Cleveland v. Lenze, 27 Ohio St. 383.

Nor is performance of official duty. Bent v. Wakefield, etc. Bank, 4 C. P. D. 1; Marking v. Needy, 8 Bush, 22; Pool v. Boston, 5 Cush. 219; Davies v. Burns, 5 Allen, 349; Day v. Putnam Ins. Co., 16 Minn. 408; Kick v. Merry, 23 Mo. 72; Gilmore v. Lewis, 12 Ohio, 281; Stamper v. Temple, 6 Humph. 113.

Nor is agreeing to rescind an unlawful contract. Hooker v. De Palos, 28 Ohio St. 251.

Nor is attendance in court of witnesses who have been served with subpoenas suffisuch promise; (j) although, in general, ignorance of the law is no excuse or defence, for if it were, a " premium would be held out to ignorance." (k)