$l6 HARVARD LAW REVIEW. sideration as any act of forbearance or promise,^ by one person given in exchange for the promise of another. These two views may be tested by the consequences of their appHcation to the following three classes of acts or forbearances : I. Forbearance to prosecute a groundless claim. II. Performance of a pre-existing contractual duty to a person other than the promisor. III. Performance of a pre-existing contractual duty to the promisor himself^ Before discussing these cases, however, it is important to emphasize the fact that a promise, though given for an abundant consideration, may yet be unenforceable. This is true whether detriment be taken in the wider or the narrower sense of the word. An illustration will make this clear. An unscrupulous friend of the defendant in a criminal trial promises a juror a certain amount of money in consideration of his voting to the end for acquittal. The juror does so vote. Here we have a promise for what is unquestionably a detriment to the promisee. But obviously the juror has no legal remedy on his bargain. He will fail, however, not because he has given no consideration for the promise, but because public policy forbids the enforcement of so vicious a bargain. This distinction is brought out pointedly in several cases where the act forming the consideration for the promise was a tort. The promisee in these cases was a sheriff who, acting upon a creditor's promise of indemnity, seized goods which he had no right to seize. In all of them he was made to pay damages to the person injured, and in all of them, having acted in good faith, he was allowed to recover on the contract of indemnity.^ Had
- A promise is an act ; but to prevent possible misapprehension it seems expedient
to add the word " promise " in the definition. 2 A subsequent paper will deal with the Nature of Consideration in Mutual Promises. 8 Arundel v. Gardiner, Cro. Jac. 652 ; Elliston v. Berryman, 15 Q. B. 205 ; Robert- son V. Broadfoot, 11 Up. Can. Q. B. 407. In Fletcher v. Harcot, Winch, 48, Hutt. 55 s. c ., an innkeeper, at the request of an officer and upon the latter's promise of indemnity, kept in custody at his inn for a day and a night a man whom the officer had arrested. It turned out that the prisoner had been wrongfully taken by the officer, and the inn- keeper, having been compelled to pay damages for the false imprisonment in his inn, recovered judgment against the officer on his promise, because, as Hobart, C. J., and Hutton and Winch, JJ., said: " Be the imprisonment lawful or unlawful, he (the inn- keeper) might not take notice of that. As if I request another man to enter into an- other man's ground and in my name to drive out the beasts and impound them and promise to save him harmless, this is a good assumpsit, and yet the act is tortious ; but by Hutton, where the act appears in itself to be unlawful, there it is otherwise, as if I request you to beat another and promise to save you harmless, this assumpsit is not good, for the act appears in itself to be unlawful."
