38 HARVARD LAW REVIEW. eral contracts. The almost uniform current of authority in this country is that neither performance nor promise of performance of what one is already bound to do by contract with a third person, is a sufficient consideration to support a promise.^ The only American authority to the contrary, aside from Merrick V. Giddings, is a remark in Day v. Gardner,^ which was a bill to foreclose a mortgage, in defence of which there was set up a con- tract, that if the defendant paid certain taxes the mortgage should be reduced. The court, after holding that the defendant was not otherwise liable to pay the taxes, said : " But if a personal liability had existed, the duty which such liability would have imposed would have been a duty to the government, which was entitled to the taxes, and not to the mortgagee ; and I am not prepared to say that, in such a condition of affairs, the collateral benefit resulting to the mortgagee from the payment of taxes which were entitled to prior- ity in payment over his mortgage, would not constitute a perfectly valid consideration for such a contract as that on which the de- fence in this case rests." But this dictum can have little weight as against the numerous decisions already cited, which enforce the rule, at once logical, readily understood and applied, and as just in its operation as any hard-and-fast rule can be, that neither performance nor promise of performance of what one is already bound to perform is a valid consideration. Samuel Williston. 1 See Johnson's Adm. w. Seller's Adm., 33 Ala. 265; Havana Press Drill Co. v. Ashurst, 35 N. E. Rep. 873 (111. 1893); Peelman v. Peelman, 4 Ind. 612; Ford v. Garner, 15 Ind. 298 ; Reynolds v. Nugent, 25 Ind. 328 ; Ritenour v. Mathews, 42 Ind. 7; Brownlee v. Lowe, 117 Ind. 420; Newton v. Chicago, &c. Ry. Co., 66 Iowa, 422; Schuler v. Myton, 48 Kan. 282 ; Putnam v. Woodbury, 68 Me. 58 ; Gordon v. Gordon, 56 N. H. 170; Bartlett w Wyman, 14 Johns. 260; Vanderbilt v. Schreyer, 91 N. Y. 392 ; Seybolt v. N. Y., L. E. & W. R. R. Co., 95 N. Y. 562; Robinson v. Jewett, 116 N. Y. 40; Sherwin v. Brigham, 39 Ohio St. 137 ; Wimer v. Overseers of the Poor, 104 Pa. 317 ; Davenport v. Congregational Society, 33 Wis. 387. 2 42 N. J. Eq. 199.
