The doubts which were raised by these obiter and by Blackstone's statement were soon laid. It was decided in a case in which the question was squarely raised, that consideration was necessary in all executory simple contracts, whether oral or written.1 In this case an executrix had given a written promise to pay a debt of the decedent out of her own estate. In an action brought upon such premise the declaration alleged the promise, but alleged no consideration therefor. It was held that no action could be brought upon such promise against such executrix personally, unless some particular consideration could be shown to warrant the extension of such liability.2 As the quotation from the opinion given in the note indicates, the court repudiated the distinction between written and oral contracts as far as the necessity for consideration was concerned. This rule was laid down with reference to a contract has been repeated so often as to become a proposition which is apparently elementary and which needs no further citation of authority.6 It has been suggested that a promise not to revoke is enforceable in writing, although it is not supported by a valuable consideration,7 on the theory that revocation can not be shown without a violation of the parol evidence rule.8 The parol evidence rule deals with the question of the terms of a written contract and not with the execution of such a contract nor with the question of its breach, and accordingly this rule does not dispense with the necessity of a consideration.

17 Meredith v. Chute, 2 Ld. Raym. 759 [sub nomine, Meredith v. Short, 1 Salk. 25].

18 Pillans v. Van Mierop, 3 Burr. 1663 (decided A. D. 1765).

19 Pillans v. Van Mierop, 3 Burr. 1663.

1 Rann v. Hughes, 7 T. R. (D. & E.) 350, note a [overruling Mansfield's dicta in Pillans v. Van Mierop, 3 Burr. 1663, to the effect that the rule requiring consideration applied to "mere verbal promises"].

2 Rann v. Hughes, 7 T. R. (D. & E.) 350, note a.

"It is undoubtedly true that every man is, by the law of nature, bound to fulfill his engagements. It is equally true that the law of this country supplies no means, nor affords any remedy, to compel the performance of an agreement made without sufficient consideration. Such agreement is nudum pactum, ex quo non oritur actio; and whatsoever may be the sense of this maxim in the civil law, it is in the last-mentioned sense only that it is to be understood in our law. The declaration states that the defendant, being indebted as administratrix, promised which was required by the statute of frauds to be proved by writing;3 and it did not attempt to pass upon contracts which were negotiable either at the law-merchant or under the Statute of Anne. At the same time, the rule thus laid down has been applied to all written contracts,4 including contracts which are negotiable, but which are not in the hands of bona fide holders for value.5 It to pay when requested, and the judgment is against the defendant generally. The being indebted is of itself a sufficient consideration to ground a promise, but the promise must be coextensive with the consideration, unless some particular consideration of fact can be found here to warrant the extension of it against the defendant in her own capacity. * * * But it is said that if this promise is in writing, that takes away the necessity of a consideration, and obviates the objection of nudum pactum, for that can not be where the promise is put in writing; and that, after verdict, if it were necessary to support the promise that it should be in writing, it will, after verdict, be presumed that it was in writing; and this last is certainly true, but that there can not be nudum pactum in writing, whatever may be the rule of the civil law, there is certainly none such in the law of England. His Lordship observed upon the doctrine of nudum pactum, delivered by Mr. J. Wilmot, in the case of Pillans v. Van Mierop and Hopkins, 3 Burr. 1663, that he contradicted himself, and was also contradicted by Vinnius in his comment on Justinian. "All contracts are, by the laws of England, distinguished into agreements by specialty, and agreements by parol; nor is there any such third class, as some of the counsel have endeavored to maintain, as contracts in writing. If they be merely written and not specialties, they are parol, and a consideration must be proved. But it is said that the Statute of Frauds has taken away the necessity of any consideration in this case; the Statute of Frauds was made for the relief of personal representatives and others, and did not intend to charge them further than by common law they were chargeable. His Lordship here read those sections of that statute which relate to the present subject. He observed that the words were merely negative, and that executors and administrators should not be liable out of their own estates, unless the agreement upon which the action was brought, or some memorandum thereof, was in writing and signed by the party. But this does not prove that the agreement was still not liable to be tried and judged of, as all other agreements merely in writing are by the common law, and does not prove the converse of the proposition, that when in writing the party must be at all events liable. He here observed upon the case of Pillans v. Van Mierop, in Burr., and the case of Losh v. Williamson, Mich. 10 G. 3, in B. R.; and so far as these cases went on the doctrine of nudum pactum, he seemed to intimate that they were erroneous. He said that all his brothers concurred with him, that in this case there was not a sufficient consideration to support this demand as a personal demand against the defendant, and that its being now supposed to have been in writing, makes no difference. The consequence of which is that the question put to us must be answered in the negative." Rann v. Hughes, 7 T. R. (I). & E.) 350, note a.

3 See ch. XLI.

4 See Sec. 537, 652. 5 See ch. LXXII.

No more help to a nudum pactum was given in chancery than at common law.9 A gift of the donor's note10 or check11 was not enforceable in equity.

It is interesting to note the narrow escape of this doctrine in the middle of the eighteenth century, and to observe that the courts long felt it necessary to emphasize the need of consideration in unsealed written contracts;12 or on the other hand, the courts tended to except mercantile paper from the general rule requiring consideration.13

To complete the history of the development of the doctrine of consideration, it is necessary to observe to what extent the broad rule that consideration is an essential element of every simple executory contract is actually applied by the courts at the present time, and to consider whether the courts are more intent upon enforcing it or upon evading it.14