520 HARVARD LAW REVIEW, a similar case, decided in the same way, in 1633. An anonymous case of 163 1 is thus reported in Sheppard's Action on the Case: ^ " If A owe to B twenty pounds and C say to A pay him his twenty pounds and I will pay it to you again, this is a good consideration and promise. Adjudged," These early precedents seem to have been forgotten. But the question involved in them arose in the Common Pleas in i860, in the Exchequer in 1861, and in the Queen's Bench in 1866; and in all three cases the plaintiff was successful.^ One may safely assert, therefore, that by the law of England the performance of a contract with a third party is a consideration for a promise. It is obviously impossible to reconcile this rule of law with the restricted interpretation of detriment as an act or forbearance other than the fulfilment of a legal duty.^ But here again all difificulty disappears if we take detriment in the wider sense of any change of position, that is, any act or forbearance given in exchange for a promise. It must be conceded that in this country a majority of the deci- sions and dicta are opposed to the doctrine of Shadwell v. Shad- well, Scotson V. Pegg, and Chichester v. Cobb.* But in most of them the English cases were not brought to the attention of the court. And it is certainly a significant fact that the latest decisions show a marked tendency towards the English rule.^ The decision of the Massachusetts court is all the more valuable because given in the light of the authorities on both sides of the question. It would 1 (2d ed.) 155-156. 2 Shadwell v. Shadwell, 9 C. B. N. s. 159 ; Scotson v. Pegg, 6 H. & N. 295 ; Chiches- ter J/. Cobb, 14 L. T. Rep. 433. See also Skeete v. Silverburg, 11 Times L. R. 491. But see dicta to the contrary in Jones v. Waite, 5 Bing. N. C. 541. ^ The cases on this point have proved very troublesome to text-writers. Anson, Cont. (8 ed.) 91, 92 ; Pollock, Cont. (6 ed.) 175-177 ; Langdell, Summary of Cont. § 54.
- Johnson v. Seller, 33 Ala. 265 (semble) ; Havana Co. v. Ashurst, 148 111. 115, 136
{semble) ; Peetman v. Peetman, 4 Ind. 612 ; Ford v. Garner, 15 Ind. 298; Reynolds v. Nugent, 25 Ind. 328; Ritenour v. Andrews, 42 Ind. 7 ; Harris v. Cassady, 107 Ind. 156; Beaver v. Fulp, 136 Ind. 595; Schuler v. Myton, 48 Kan. 282 ; Putnam v. Wood- berry, 68 Me. 58; Gordon v. Gordon, 56 N. H. 170, 173 {semble) ; Ecker v. McAllister, 45 Md. 290 ; 54 Md. 362, s. c. ; Vanderbilt v. Schreyer, 91 N. Y. 392 ; Robinson V. Jewett, 116 N. Y. 40; Arend v. Smith, 151 N. Y. 502 ; Allen v. Turck, 8 N. Y. App. Div. 50; Hanks v. Barron, 95 Tenn. 275; Davenport v. Congregational Society, 33 Wis. 387. ^ Humes®. Decatur Co., 98 Ala. 461, 473 [semble); Abbott v. Doane, 163 Mass. 433 ; Monnahan w. Judd, 165 Mass. 93, 100 (semble) ; Wilhelm v. Foss (Michigan, 1898), 76 N. W. Rep. 308 {semble) ; Day v. Gardner, 42 N. J. Eq. 199, 203 {semble) ; Green v. Kelley, 64 Vt. 309; see also Grant v. Duluth Co., 61 Minn. 395, 398.
