Page:Harvard Law Review Volume 12.djvu/539

519 TIVO THEORIES OF CONSIDERATION. SI^ In the light of this change in the law it can no longer be main- tained that forbearance to prosecute a groundless claim is not a detriment. And as the validity of a promise given for such for- bearance depends upon the good faith of the promisee, that is upon public policy, the forbearance cases support the writer's view that consideration is any act or forbearance by one person given in exchange for the promise of another. II. Performance of a pre-existing contractual^ duty to a person other than the promisor. As early as 1616 it was decided in Bagge v. Slade,^ that an action would lie upon a promise, the only consideration for which was the performance of a prior contract with a third person. A bond executed by a principal and by A and B as sureties being forfeited, B requested A to pay the whole debt to the obligee promising to pay him a moiety. A paid accordingly and brought Assumpsit against B for refusing to keep his promise. It was objected that there was no consideration for the promise, since A was already bound to the obligee for the full amount of the bond. But the court gave judgment for A, Coke, C. J., saying: " I have never seen it otherv/ise but when one draws money from another, that this should be a good consideration to raise a promise. In considering this case it should be remembered that in the absence of an express contract there was at this time no right of contribu- tion for a surety either at law or in equity.^ Moore v. Bray ^ was 630; Hayes v. Mass. Co., 125 111. 626, 639; Ostrander v. Scott, 161 111. 339; Leesonz/. Anderson, 99 Mich. 247, 248; Hanson v. Garr, 63 Minn. 94. There are a few recent decisions to the contrary ; Sweitzer v. Heasly, 13 Indiana Ap. 567 ; Peterson v. Breitag, 88 Iowa, 418, 422, 423; Emmittsburg v. Donoghue, 67 Md. 383. Other earlier deci- sions will be found in i Pars. Cont. (8 Ed.) 458 n. 1 Promises given in consideration of the performance of official duties, or duties to the public, are not enforceable. Public policy, rather than the absence of considera- tion, it is submitted, is the sound reason for denying a right of action on such promises* But, the result being the same on either view, they fall without the scope of this article. The authorities are well collected in the note to i Parsons, Cont. (8th ed.) 452. See also Willis v. Peckham, i Br. & B. 515 (duty of witness to attend court) ; Crowhurst v. Laverack, 8 Ex. 208 (duty of mother to support illegitimate child) ; Keith v. Miles, 39 Miss. 442 (duty of ward to obey guardian), and especially Leake, Cont. (2d ed.) 99. lish Bill in the Court of Requests praying for contribution, the Common Pleas granted a prohibition, saying : " If one surety should have contribution against the other, it would be a great cause of suits." contra.
 * 3 Bulst. 162, 1 Roll. R. 354, s. c.
 * In Wormleigton v. Hunter (1613), Godb. 243, a surety having exhibited an Eng-
 * 1 Vin. Ab. 310, pi. 31 ; but see Westbie v. Cockayne (1631), i Vin. Ab. 312, pi. 36,