But a simple contract is, as I have said, incapable of becoming the subject of an action unless supported by a consideration.2 Ex nudo pacto non oritur actio is an old and well-established maxim of our law, as well as of the civil law, and has been illustrated by a great variety of cases from time to time {g) : thus it has been laid down by Lord Kenyon (h), that a promise made by the captain of a ship to one of his seamen, when the ship was in *:extraordinary danger, to pay him an extra sum of money as an inducement to extra exertion, was a void promise; because every seaman is bound to exert himself to the utmost for the safety of the ship, and therefore the captain would get nothing from the seaman in exchange for his promise except that which the seaman was bound to do before.3 And it has been

(g) Westhead v. Sproson, 30 L. J. (Ex.) 265; McManus v. Bark, L. E. 5 Ex. 65; 39 L. J. (Ex.) 65. See also Dashwood v. Jermyn, 12 Ch. Div. 776.

(h) Harris v. Watson, Peake, 72; Harris v. Carter, 23 L. J. (Q. B.) 295; 3 E. & B. (77 E. C. L. E.) 559. See Clutterbuck v. Coffin, 3 M. & G. (42 E. C. L. E.) 842; Hartley v. Ponsonby, 26 L. J. (Q. B.) 322.

1 It has been before stated, that in some of the United States, the obligor of a specialty is, by statutory enactment, permitted, under some restrictions, to show its failure, as at common law, he could its illegality of consideration.-R.

2 Ames v. Taylor. 49 Me. 381; Richardson v. Williams, lb. 558; Dorwin v. Smith, 35 Vt. 69; Smith v. Rogers. lb. 140; Newhall v. Paige, 10 Gray, 316; Carr v. Card, 34 Mo. 513; Conover v. Stillwell, 34 N. J. 54; Glascow v. Hobbs, 32 Ind. 440; Worth v. Carr, 42 N. Y. 362.-s.

3 And to the same effect were Newman v. Walters, 3 B. & P. 612; Stilk v. Myrick, 2 Camp. 317; Smith v. Bartholomew, 1 Metc. 278. [Robb v. Mann, held, that interest, being by merchantile usage payable upon balances, an agreement in consideration of interest upon a balance to give an extended time for paying it, was merely void (i). The documents put in by the defendant, said Parke, B., showed that interest was payable at the time of the contract, and therefore there was no consideration for that contract.

The reason for the strictness with which this rule of lawthat there must be a consideration to support a simple contract-is enforced, is, to guard persons against being drawn hastily and inconsiderately into engagements which may prove ruinous to them. The law does not absolutely prohibit them from contracting a gratuitous obligation, for they may, if they will, do that by deed; and it is thought that, a deed being an instrument requiring more of ceremony and formality, and sealing being considered all over Christendom as an act of much solemnity, and as suggesting the *contract to be extraordinary and important, more opportunity for thought is afforded to the party executing it than to a person entering into a simple contract, and, consequently, that it is not unreasonable to give it a more stringent operation.

The reason of the law of England on this point-one of the most important in our entire system-is very clearly explained in the judgment of the Court of Queen's Bench in Eastwood v. Kenyon (k), the case which I before mentioned with reference to the 4th section of the Statute of Frauds.

The Lord Chief Justice remarks, in that case, that

(i) Orme v. Galloway, 23 L. J. (Ex.) 118; 9 Ex. 544. See also Beer v. Foakes. 11 Q. B. D. 221; 52 L. J. (Q. B.) 712, reversing lb. 426. {k) 11 Ad. & E. (39 E. C. L. E.) 433, 450; 9 L. J. (Q. B.) 409, 412.

11 Pa. St. 300; Gilmore v. Green, 14 Bush, 772; Bryan v. Brazil, 52 Iowa, 350.]-r.

"the eminent counsel who argued for the plaintiff in Lee v. Muggeridge (I), spoke of Lord Mansfield as having considered the rule of nudum pactum too narrow, and maintained that all promises deliberately made ought to be binding at law; as they certainly are in honor and conscience." But the Chief Justice continues : "The enforcement of such promises at law, however plausibly reconciled by the desire to carry into effect all conscientious engagements, might be attended with mischievous consequences to society-one of which would be the frequent preference of voluntary undertakings to claims for just debts.1 Suits would thereby be multiplied, and voluntary undertakings would be also multiplied, to the prejudice of real *creditors. The temptations of executors would be much increased by the prevalence of such a doctrine, and the faithful discharge of their duty be rendered more difficult."

Perhaps, it may be added, that if this rule were not law, an expression of present intention, of mere good will, of no more than opinion (m), or even a civil and indirect refusal, would continually be made the grounds of actions; for no one can have seen much of society, or attended much in Courts of Justice, without having observed how frequently such expressions are taken by the recipient in a sense very much more favourable to his interests and wishes than they were intended by the utterer to bear (n).

(I) 5 Taunt. (1 E. C. L. R.) 36. The counsel were Mr. Serjt. Lens, and Mr. Serjt. Best, afterwards Lord Wynford.

(m) Nicholson v. Ricketts, 29 L. J. (Q. B) 95.

(n) See Puffendorff's Law of Nature, B. 3, cap. 5; and Shadwell v. Shadwell, 30 L. J. (C. P.) 97.

1 Thus services voluntarily done by one for another, without his privity or consent, afford no ground for an action, however meritorious they may be, as, for instance, in saving his property from fire: Bartholomew v. Jackson, 20 that if he had refused to sign it the plaintiffs might have refused to employ him any longer, and consequently that the consideration was really, as stated in the written agreement, his entering into the plaintiff's employment at such a salary (t).

Now, with regard to the question- What does the law of England recognize as a consideration capable of supporting a simple contract.? The best and most practical answer is,-Any benefit to the person making the promise, or any loss, trouble, or inconvenience to, or charge upon the person to whom it is made.1 Sir Wm. Blackstone, in the second volume of his Commentaries (p. 444), following the arrangement of the civilians, divides considerations into four classes: 1st. Do ut des, where I give something that something may be given to me; 2d. Facio ut facias, where I do something that *something may be done for me; 3d. Facio ut des, where I do something that something may be given to me; and 4th. Do ut facias, where I give something that something may be done for me. Divisions of this sort are useful for the sake of arranging our ideas, and testing their clearness; but the short practical rule is, as I have said, that any benefit accruing to him who makes the promise, or any loss, trouble, or disadvantage undergone by, or charge imposed upon, him to whom it is made, is a sufficient consideration in the eye of the law to sustain the promise. Thus, let us suppose I promise to pay B. 50 at Christmas. Now, there must be a consideration to sustain this promise. It may be that B. has lent me 50: here is a consideration by way of advantage to me.1 It may be that he has performed, or has agreed to perform, some laborious service for me: if so, here is a consideration by way of inconvenience to him, and of advantage to me at the same time. It may be that he is to labour for a third person at my request: here will be inconvenience to him without advantage to me: or, it may be that he has become surety for some one at my request; here is a charge imposed upon him. Any of these will be a good consideration to sustain the promise on my part. Illustrations of this rule you may collect from various instances, among which I will refer you to Williamson v. Clements (o), where the defendant being indebted *to the plaintiff on a bill of exchange endorsed to him, the plaintiff having lost that bill, gave to the defendant, at his request, a bond acknowledging that the bill was paid, and containing a condition for indemnifying the defendant against his afterwards being compelled to pay the bill; and the defendant, in consideration thereof, promised the plaintiff to pay him the amount of the bill. It will be observed, that it was a detriment to the plaintiff to acknowledge the bill to have been paid, since he thereby gave up any claim upon the bill which he might otherwise have had if he had found it. So in Whitehead v. Greetham, decided in the Exchequer Chamber (p), the declaration stated that the plaintiff had retained the defendant at his request to lay out 700 in the purchase of an annuity for him; that the defendant promised to lay it out securely, and that the plaintiff delivered him the money for that purpose; and the Court held that there was a good consideration for that promise. It was clearly a detriment to the plaintiff to part with his 700. In another instance, one Charles Kennedy being indebted to the firm of Boeme and Smout, and the plaintiff having been appointed by the Court of Chancery receiver of the debts due to the firm, in consideration that the plaintiff would give C. Kennedy two months' time to pay, the defendant promised the plaintiff to pay him at the *expiration of that period should C. Kennedy not do so. Here it is observable, that the plaintiff did not interfere as a stranger in the concerns of the firm for which he was appointed receiver. It was his duty to require the debtor to pay, and the duty of the debtor to pay him. The contract, therefore, to forbear to proceed against the debtor was a contract from which the plaintiff might incur a detriment, and it is a sufficient consideration for. a contract if one party receives a benefit, or the other is exposed to a detriment from it (q). By a similar course of reasoning, the case of Hartley v. Pon-sonby was decided,-a case so nearly resembling in its circumstances that of Harris v. Watson, recently mentioned (r), that many were startled by the decision, as if it had been inconsistent with the latter. A ship being on a voyage from Liverpool to Port Philip and back, when in Port at P., became so short handed that it was dangerous to life to proceed with only the reduced crew. The captain being unable to procure additional hands, promised the able seamen remaining, who were under articles for the whole voyage, an ad-tional sum if they would assist in taking the ship to the next port. It was held that the seamen were not bound to proceed on the voyage, as it involved *risk of life, and that the promise was therefore not nudum pactum, and was binding on the captain (s). In this case, it will be observed that the proceeding in the ship which had been rendered unfit for the voyage by the loss of a portion of the crew was not obligatory on the remainder, but was a detriment to them which they had not engaged to undergo; as well as a benefit to the captain which he was not entitled to demand. In a more recent case the defendant being in the employment of the plaintiffs in one capacity, agreed with them to serve them in another, it being understood at the time that the terms of their agreement should be reduced into writing. He thereupon entered into the latter employment, and being in it the written agreement was signed by him stating that in consideration of his entering into the plaintiff's employment at such a salary, he thereby agreed to do so, with the understanding that if he performed similar services for any other on the same ground he should pay the plaintiffs the sum of 50. It was argued that having already entered on his new employment before he signed the agreement, he was in their employ on an implied contract, to serve them on his part, and to be paid on theirs, and consequently that the superadded restriction not to serve other persons was without consideration. But it is clear, and was so considered by the *Court of Common Pleas, that the agreement was not perfected till it was signed, and