Again, if one man is compelled to do that which another man ought to have done and was compellable to do, that is a sufficient consideration to support a promise by the former to indemnify him. Such is the common case of a surety who has been compelled to pay a demand made against the principal, and who, as we know, is entitled to bring an action to recover an indemnity. And such is also the case of an endorser of a bill, who, on account of the acceptor's default in not paying the bill when due, is compelled by the holder to pay him the amount; the endorser may sue the acceptor to recover an indemnity (q). In like manner, if one of several joint contractors, not being partners (whose rights inter se are not at common law ever decided), has been compelled to pay, or in pursuance of his legal obligation has paid, the whole of their common liability, he is entitled to recover from each *of them his proportional share (r). An instructive example of the same rule is afforded by the case of Sutton v. Tatham (s). There, the broker for a seller having entered into a contract for the sale of stock, which was not fulfilled by his principal, and similar stock having been thereupon purchased at a higher price by the broker of the purchaser, the seller's broker, in obedience to a rule of the Stock Exchange, paid the difference, and also the commission of the purchaser's broker; and it was held that the seller's broker might recover from his principal the amount of such payments, by showing that it was compulsory upon him to make them. These examples seem sufficient to explain the nature of the species of consideration now before us (t). I might cite a multitude of other cases in which questions have arisen as to the sufficiency of the consideration; but I think that the instances I have already given are sufficient for the purpose I had in view, which was, to illustrate the general nature of the questions which arise on the sufficiency of a consideration to support a promise.
(q) Pownall v. Ferrand, 6 B. & C. (13 E. C. L. R.) 439. See also 45 & 46 Vict. c. 61 (Bills of Exchange Act, 1882), s. 57.
(r) Holmes v. Williamson, 6 M. & S. 158; Prior v. Hembrow, 8 M. & W. 873; Pitt v. Purssord, 8 M. & W. 538; Batard v. Hawes, 22 L. J. (Q. B.) 443; 2E.&B. (75 E. C. L. R.) 287.
(s) 10 A. & E. (37 E. C. L. R.) 27; Pawle v. Gunn, 4 Bing. N. C. (33 E C L. R.) 445; Bayliffe p. Butterworth, 1 Ex. 425; Bayley v. Wilkins, 7 C. B. (6? E. C. L. R.) 886; Westrop v. Solomon, 8 C. B. (65 E. C. L. R.) 345; Taylor -. Stray, 26 L. J. (C. P.) 185, 287 (Ex. Ch.); 2 C. B. (N. S.) (89 E. C. L. R. 175, 197.
* There is, however, one thing more to be observed, and that is the distinction between executed and executory considerations. Now, with regard to the meaning of these words, which you will continually hear used in legal arguments, it is this:-an executed consideration is one which has already taken place, an executory consideration one which is to take place-one is past, the other future. Thus, if A. delivered goods to B. yesterday, and B. makes a promise to-day in consideration of that delivery, this promise is said to be founded upon an executed consideration, because the delivery of the goods is past and over. But, if it be agreed that A. shall deliver goods to B. to-morrow, and that B. shall, in consideration, do something for A., here is an executory consideration, because the delivery of the goods has not yet taken place. And so, whenever,
(t) Toussaint v. Martinnant, 2 T. R. 100; Fisher v. Fallowes, 5 Esp. 171; Jeffreys v. Gurr, 2 B. & Ad. (22 E. C. L. R.) 833. 206 at the time of making a promise, the consideration on which it is founded is past, the consideration is said to be executed; whenever the consideration is future, it is said to be executory.1
Now, between executed and executory, or, in other words, between past and future considerations, the law makes this distinction, namely, that an executed consideration must be founded on a previous request; an executory one need not, or, to speak more correctly, its very terms imply a request. For, if A. promise to remunerate B. in consideration that B. will perform something specified, that amounts to a request to B. to perform the act for which he is *to be remunerated (u). For instance, in the case of Hunt v. Bate (x), Bate's servant was arrested and sent to prison, and Hunt became bail for him, and procured his liberation, after which the master promised Hunt to save him harmless. Hunt was obliged to pay the servant's debt, and brought an action against Bate upon his promise to indemnify him; but the Court held that it would not lie. "For," said the Judges, "the master did never make request to the plaintiff to do so much, but he did it of his own head." But the report goes on to say, "in another action brought on a promise of twenty pounds made to the plaintiff by the defendant, in consideration that the plaintiff," at the special instance of the defendant, had taken to wife the cousin of the defendant, that was a "good cause of action, though the marriage was executed and past before the undertaking and promise, because the marriage ensued at the request of the defendant."1
1 There are also said to be two other kinds of consideration, viz., concurring and continuing. The former arises in the case of mutual promises, as where A. and B. being competitors for the bounty for the best manufactured cloth, agreed that the successful competitor should divide the bounty with the other, the promises were mutual, and in consideration of each other : Briggs v. Tillo-ton, 8 Johns. 306. So when several promise to contribute to a common object : Stewart v. Trustees of Hamilton College, 2 Den. 403; Society of Troy v. Perry, 6 N. H. 164; where one promises to become a partner, and the other promises to receive him as such: M'Neill v. Reid, 9 Bing. (23 E. C. L. R.) 68 and the like; Wood v. Rice, 481; Wightman v. Coates, 15 Mass. 1; Willarc v. Stone, 7 Cow. 22. In cases of concurrent considerations, if the promise of either party should fail to bind him (as from illegality of subject-matter, of any such cause), the other promise will be deprived of its support, and the contract could not be enforced. It is also necessary that the promises should be mutual and simultaneous: Thornton v. Jenyns, 1 Scott, 74; and an averment that, in consideration of the plaintiff's promise, the defendant" afterwards, to wit, on the same day, promised," has been held bad, the promise having no consideration; that is, no consideration but another promise, and that promise was not a mutual and simultaneous one: Livingston v. Rogers, 1 Cai. 583; Fricke v. Wood, 12 Johns. 190; Keep v. Goodrich, lb. 397.