Impossible considerations are wholly bad and insufficient. We have seen that a consideration which one cannot perform without a breach of the law is bad, and so is one which cannot be performed at all. (f) The reason is obvious from such

149; Fergusson v. Norman, 5 Bing. N. C. 86; Territt v. Bartlett, 21 Vt. 184; Bancroft v. Dumas, 21 Vt. 456; Bell v. Quin, 2 Sandf. 146; Eberman v. Reitzell, 1 W. & S. 181; Hale v. Henderson, 4 Humph. 199; Elkins v. Parkhurst, 17 Vt. 105; Brackett v. Hoyt, 9 Foster (N. H.), 264; Griffith v. Wells, 3 Denio, 226. - And the repeal of a prohibitory act will not per se render valid a contract made during the existence of the act, contrary to its provisions. But the legislature may give a remedy by express enactment. Milne v. Huber, 3 McLean, 212. An application of the general principle of the text was made in Jackson v. Walker, 5 Hill (N. Y.), 27. By the laws of New York every contribution of money intended to promote the election of any person or ticket is prohibited by the statute (1 R. S. 136, § 6), except for defraying the expenses of printing, and the circulation of votes, handbills, and other papers, previous to such election; and this, whether the immediate purpose for which the money is designed be in itself corrupt or not. Accordingly, where the defendant agreed to pay the plaintiff $1,000, in consideration that the latter, who had built a log cabin, would keep it open for the accommodation of political meetings to further the success of certain persons nominated for members of Congress, etc, it was held that the agreement was illegal, and could not be enforced. See also Cun-dell v. Dawson, 4 C. B. 376; Jerome v. Bigelow, 66 Ill. 452.

(e) In Cundell v. Dawson, 4 C. B. 376, Wilde, C. J., intimated, that statutes enacted simply for the security of the revenue, did not come within the principle. And in Smith v. Mawhood, 14 M. & W.

452, it was held that the excise act, requiring certain things of dealers in tobacco, did not avoid a contract of sale of tobacco by one not complying with these requisitions, as their effect is only to impose a penalty. But where it appears to be the intention of the legislature to prohibit a contract as well as to impose a penalty for making it, such contract is illegal and void, although the prohibition be intended only for purposes of revenue. And see Abbot v. Rogers, 30 E. L. & E. 446; s. c. 16 C. B. 277, and Lewis v. Welch, 14 N. H. 294; Ellis v. Higgins, 32 Me. 34, and Hill v. Smith, Morris (Ia.), 70. (f) 5 Vin. Abr. 110, 111, Condition (C.) a, (D.) a; 1 Roll. Abr. 419; Co. Lit. 206 a; 2 Bl. Com. 341; Shep. Touch. 164. See 22 Am. Jur. 20-22. In Nerot v. Wallace, 3 T. R. 17, a promise was made by the defendant to the assignees of a bankrupt, when the latter was on his last examination, that in consideration that the assignees would forbear to have the bankrupt examined, and that the commissioners would desist from taking such examination touching moneys alleged to have been received by the bankrupt, and not accounted for, he, the defendant, would pay such money to the assignees. This promise was held by the court to be illegal, as being against the policy of the bankrupt laws. And Lord Kenyan observed: " I do not say that this is nudum pactum; but the ground on which I found my judgment is this: that every person, who in consideration of some advantage, either to himself or to another, promises a benefit, must have the power of conferring that benefit up to the extent to which that benefit professes to go, and that not only in fact but in law. Now the promise made to the assignees in would or would not allow it to be carried into effect." - So it will be no excuse for the non-performance of an agreement to deliver goods of a certain quantity or quality, that they could not be obtained at the particular season when the contract was to be executed. Gilpins v. Consequa, 1 Pet. C. C. 91; Youqua v. Nixon, id. 221. And see Mactier v. Frith, 6 Wend. 103, 123.

* consideration no possible benefit or advantage could be derived to the one party, and no detriment to the other; and if that which is offered or provided as a consideration cannot happen, the mere words alone are a nullity. It is undoubtedly possible, that one may make a promise which is utterly impossible to perform, and nevertheless the promisee may derive a positive advantage from the mere fact that the promise is made. In such a case, supposing the transaction free from all taint of fraud, this advantage would be a good consideration, but not the promise by itself.

But a promise is not void, merely because it is difficult, or even improbable. And it seems that if the impossibility applies to the promisor personally, there being neither natural impossibility in the thing, nor illegality nor immorality, then he is bound by his undertaking, and it is a good consideration for *the promise of another. (g) The reason of this appears this case, which was the consideration of the defendant's promise, was not in their power to perform, because the commissioners had nevertheless a right to examine the bankrupt. And no collusion of the assignees could deprive the creditors of the right of examination which the commissioners would procure them. The assignees did not stipulate only for their own acts, but also that the commissioners should forbear to examine the bankrupt; but clearly they had no right to tie up the hands of the commissioners by any such agreement." And Ashhurst, J., observed: " In order to found a consideration for a promise, it is necessary that the party by whom the promise is made should have the power of carrying it into effect, and secondly, that the thing to be done should in itself be legal. Now it seems to me that the consideration for this promise is void, on both these grounds. The assignees have no right to control the discretion of the commissioners; and it would be criminal in them to enter into such an agreement, because it is their duty to examine the bankrupt fully, and the creditors may call on them to perform it. And for the same reason the thing to be done is also illegal."

(g) See Co. Lit. 206 a, n. 1; Platt on Cov. 569; 3 Chitty on Com. Law, 101; Blight v. Page, 3 B. & P. 296, n.; Wors-ley v. Wood, 6 T. R. 718, Kenyon, C. J. And see Tuffnell v. Constable, 7 A. & E. 798, arguendo. In this case there was a covenant to invest a sum in bank annuities, or other government stock, in the corporate names of the archdeacon of C, the vicar of W., and the churchwardens of W., the dividends to be held and received by the archdeacon, vicar, and churchwardens, for the time being, in trust for the support of a parish school for poor children, and in further trust for the disposition of coals, etc, among poor persons of the parish. Held, on general demurrer to a declaration, that an action lay upon such covenant, no impossibility of performance appearing, inasmuch as the investment might at any rate be lawfully made in the corporate names of the present archdeacon, vicar, and churchwardens. And Littledale, J., said, in giving judgment: " The defendants allege that they cannot invest this stock, because the parties named in the bequest are not corporations for that purpose, and the investment could not be effected at the bank. But the answer is, let them show that they have applied at the bank and to the proper officers, and that it is impossible to make the investment with their consent. I should say then that no sufficient answer was given, the law not forbidding the thing to be done, and there being no breach of moral duty involved in it, and the defendants being under covenant to perform it. But if an actual impossibility were shown, the parties might go to a court of equity to restrain proceedings in an action on the covenant, they showing that they had done all in their power to fulfil it. The testator in this case must be taken to have known, when he covenanted, whether the law would permit a fulfilment of the covenant or not; or, perhaps it should rather be said, whether the course of practice to be, that if a party binds himself to such an undertaking, he may either procure the thing to be done by those who can do it, or else pay damages for not doing it. The party receiving such a promise may know that the promisor himself cannot do the thing he undertakes, but may not know that he has not already made, or has it not in his power to make, such arrangement with him who can do it as will secure its being done. He has a right, therefore, to expect that it will be done, and to pay for such promise or undertaking, either by his own promise or otherwise. But if the thing undertaken is in its own nature and obviously impossible, he cannot expect it will be done; and to enter into any transaction based upon such undertaking, is a fraud or a folly which the law will not sanction. Hence, it would seem that an engagement by one, entered into with a second party, that a third party shall do something which the first cannot do, is a good consideration for a promise by the second party. (h) The cases which seem to oppose this rule are, generally, at least, * cases in which the consideration was open to the objection of illegality. (i) By the Code Napoleon, B. 3, tit. 3, c. 4, s. 1, it appears, that while a promise to do an impossible thing is null, a promise not to do an impossible thing is a sufficient foundation for an obligation which rests upon it. We have no such distinction in the common law.

(h) Thus a promise to procure the consent of a landlord to the assignment of a lease is binding. Lloyd v. Crispe, 5 Taunt. 249. And where one of several partners in a firm agreed to introduce the plaintiff (a stranger) into it, it was decided that the agreement was valid, although the other partners were ignorant of its existence, and their assent was of course essential to the admission of the plaintiff.

McNeil v. Reed, 2 M. & Scott, 89; s. c. 9 Bing. 68.

(i) Thus in Harvey v. Gibbons, 2 Lev. 161, which was a writ of error on a judgment in Shrewsbury court, where the plaintiff declared that he, being bailiff to J. S., the defendant, in consideration that he would discharge him of £20 due to J. S., promised to expend £40 in repairing a barge of the plaintiffs, - verdict and judgment for the plaintiff, upon non assumpsit, were reversed, the consideration being illegal, for the plaintiff cannot discharge a debt due to his master. Although this decision is sometimes cited as showing that a contract is void if the consideration is impossible, yet it may be rested more properly on the ground that the consideration was illegal. The same may be said of Nerot v. Wallace, 3 T. R. 17 supra, note (/),p.*459.