§ 600. But wherever the law does not raise an implied promise on these grounds to pay, a previous request must be proved in order to sustain an action; for no express promise, made upon a past consideration, can be enforced, differing from that which would be implied by law.1 And this rule obtains, not because the consideration is executed, but because, unless it be beneficial to the promisor, and adopted by him, or create a legal liability on his part, it would be merely a moral consideration, which, as we have seen, is not sufficient alone to support a promise.2 The rule, therefore, is, not that an executed consideration will not support a contract, for although it be executed, the law will imply a promise wherever it does not appear to be merely moral; but that a prior request should be alleged.3
2 Ante, § 117 and cases cited.
3 The Fishmongers' Co. v. Robertson, 5 Man. & Grang. 192; Law ». Wilkin, 6 Ad. & El. 718.
4 Pownal v. Ferrand, 6 B. & C. 439; Child v. Morley, 8 T. R. 610; Exall v. Partridge, 8 T. R. 308; Jenkins v. Tucker, 1 H. Bl. 90; Sargent v. Currier, 49 N. H. 310 (1870).
5 Pawle v. Gunn, 4 Bing. N. C. 448, per Tindal, C. J.; Spencer v. Parry, 8 Ad. & El. 338; Dawson v. Linton, 5 B. & Al. 521; Brown v. Hodgson, 4 Taunt. 189. See ante, § 15, 16.
6 Davies v. Humphreys, 6 M. & W. 153; Pitt v. Pursord, 8M.&W. 538.
§ 601. If the consideration be "executed in part only," it is called a "continuing consideration."* The rule applicable to the pleadings upon continuing considerations differs from that which prevails in the pleadings upon executed considerations. And although, if the consideration appear to be wholly executed and past, a precedent request is indispensable to support the declaration; yet if the consideration appear, on the face of the declaration, to be a continuing consideration, it is substantially good, although no precedent request be averred. Although the consideration move from a third person, yet if it be a continuing consideration, it will be sufficient to support a promise made to the person for whose benefit the consideration moved. Thus, if A. deliver money to B. for the use of C, and B. afterwards promise C. to pay it, the promise is binding.1
1 Roscorla v. Thomas, 3 Q. B. 234. This was an action for the breach of the warranty of a horse. The declaration alleged that, in consideration that the plaintiff, at the request of the defendant, had bought of him a horse for £30, the defendant promised that he was sound and free from vice. It was objected, in arrest of judgment, that the executed consideration would not support the subsequent express promise that the horse was sound. The court held, after advisement, that "the promise in the present case must be taken to be, as in fact it was, express: and the question is, whether that fact will warrant the extension of the promise beyond that which would be implied by law; and whether the consideration, though insufficient to raise an implied promise, will nevertheless support an express one. And we think that it will not. The cases in which it has been held that, under certain circumstances, a consideration insufficient to raise an implied promise, will nevertheless support an express one, will be found collected and reviewed in the note to Wennall v. Adney, 3 Bos. & Pul. 249, and in the case of Eastwood v. Kenyon, 11 Ad. & El. 438. They are cases of voidable contracts subsequently ratified, of debts barred by operation of law, subsequently revived, and of equitable and moral obligations, which, but for some rule of law, would of themselves have been sufficient to raise an implied promise. All these cases are distinguishable from, and indeed inapplicable to, the present, which appears to us to fall within the general rule, that a consideration past and executed will support no other promise than such as would be implied by law." Jackson v. Cobbin, 8 M. & W. 790; Brown v. Crump, 6 Taunt. '300; Granger v. Collins, 6M.&W. 458; Hopkins v. Logan, 5M.&W. 241; Victors v. Davies, 12 M. & W. 758; Lattimore v. Garrard, 1 Exch. 809.
2 Jennings v. Brown, 9 M. & W. 501; Eastwood v. Kenyon, 11 Ad. & El. 438; Monkman v. Shepherdson, 11 Ad. & El. 415.
3 See Albany City Ins. Co. v. Whitney, 70 Penn. St. 248 (1871).
4 Com. Dig. Action on the Case, Assumpsit (B. 12); 1 Powell on Cont. 349 (ed. 1790); Loomis v. Newhall, 15 Pick. 159; Andrews v. Ives, 3 Conn.' 368.
§ 602. The following are examples of- continuing considerations: Where the plaintiff declared, that the defendant married a maid, who sojourned in the plaintiffs house, and did "then desire the plaintiff, that his wife might still continue in the house a year longer, to which the plaintiff agreed; and afterwards, about the middle of the year, the defendant promised, in consideration that the plaintiff would suffer the wife to continue in the house for the whole of the year, he would pay the plaintiff for the whole year, as well the past as the future,"-this was held to be a good consideration.2 So, also, a promise, in consideration that the lessee then in possession, under an unexpired lease, had paid his rent well, to save him harmless, during the whole term, past as well as future, was held to be binding, on the ground that "prompt payment of the rent is a continuing consideration, when he (the tenant) remains in possession."3 So, where a father promised A. to pay him a certain sum of money if A. would marry his daughter, at his (the father's) request, and there was no agreement as to the time when the money should be paid; it was held to be a sufficient continuing consideration for a promise to pay it, made after the marriage, although the plaintiff married the daughter without the consent and knowledge of the father.1 In fact, marriage is always considered as a continuing consideration, and a promise made in consideration thereof is valid, and can be enforced, although it be made after marriage.2
1 Lilly v. Hays, 5 Ad. & El. 548; Williams v. Everett, 14 East, 582; Com. Dig. Action on the Case, Assumpsit (B. 15); 2 Story, Eq. Jur. § 1041.
2 Cotton v. Wescott, 3 Bulst. 187; s. c. 1 Rolle, 381. See also Merri-wether's Case, Clayt. 43; 1 Lill. Abr. 114; Bac. Abr. Assumpsit (D.); 1 Powell on Cont. 349, et seq. (ed. 1790); Warcop v. Morse, Cro. Eliz. 138; Loomis v. Newhall, 15 Pick. 159; Powley v. Walker, 5 T. R. 373; Adams v. Dansey, 6 Bing. 506.
3 Pearle v. Unger, Cro. Eliz. 94. See also Jones v. Clarke, 2 Bulst. 73; Com. Dig. Action on the Case, Assumpsit (B. 12); 1 Powell on Cont. 350 (ed. 1790).
§ 603. The same rule applies to the common case of a promise in respect to an existing debt, or legal liability, still binding upon the party promising, provided that the promise be such as the law will imply.3 But if the promise exceed or differ from the promise implied by law, it would in such a case be void. Thus, an existing debt is a sufficient consideration for a promise by the debtor to pay it in prcesenti, or upon demand; but it will not support a promise to pay it at a future fixed time.4 But if there is a running account with items on both sides, and a balance is struck in favor of one party, this acts as a new consideration sufficient to take it out of the statute of limitations, and would seem a sufficient consideration for a promise to pay at a future day.5
§ 604. If the consideration be executory, it is not indispensable to aver a precedent request, because it would be necessarily implied;6 but a performance by the plaintiff must be
1 Marsh v. Kavenford, Cro. Eliz. 59; s. c. 2 Leon. Ill; Sandhill v. Jenny, Dyer, 272 b; 3 Salk. 96; Townsend ». Hunt, Cro. Car. 408. But quaere, whether, if there had been no promise before the marriage, the promise after the marriage, which is alleged to have been at the request of the father, would be good. The authorities on this point are contradictory. In Marsh v. Kavenford, it is held to be good, upon the ground that the natural affection of the father doth continue, and her advancement is a sufficient cause. This doctrine is affirmed in Oliverson v. Wood, 3 Lev. 366. But Sandhill v. Jenny, Dyer, 272 b, maintains the contrary doctrine. See Com. Dig. Action on the Case, Assumpsit (B. 12), and 1 Powell on Cont. 350 (ed. 1790); Sydenham v. Worlington, Godb. 31; 2 Leon. 224.
2 Barker v. Halifax, Cro. Eliz. 741; Oliverson v. Wood, 3 Lev. 366.
3 Hodge v. Vavisor, 1 Rolle, 414. See Lee v. Maddox, 1 Leon. 168; Russell v. Buck, 11 Yt. 166; Roscorla v. Thomas, 2 Gale & D. 508; 8. c. 3 Q. B. 234.
4 Hopkins v. Logan, 5 M. & W. 247. See also Roscorla v. Thomas, 2 Gale & D. 508; s. c. 3 Q. B. 234.
5 Ashby v. James, 11 M. & W. 542.
6 See Fisher v. Pyne, 1 Man. & Grang. 265, note b by the reporters; 1 alleged, and then a special request to the defendant to pay; although in many cases the general conclusion, licet scepe re-qucesitus, will be sufficient.1