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Brathwait, Hob. 105. It will not, without such request, sustain a subsequent promise. Hunt v. Bate, 272, a.; 1 Rolle's Abr. 11; Hayes v. Warren, 2 Str. 933; Tindal, C. J. 1 Man. & Gr. 166; Chaffee v. Thomas, 7 Cow. 358. There are some decisions the other way. Greeves v. McAllister, 2 Binn. 591. But the weight of authority is that though there may be an express promise by the defendant to pay money, yet if the consideration for it (be not continuing, as in Carroll v. Nixon, 4 W. & S. 525, but) was past, and executed long before-a benefit voluntarily conferred by the plaintiff, and received by the defendant-but not conferred at the request of the defendant-the consideration is not sufficient. Eastwood v. Kenyon, 11 Adol. & El. 438, 39 Eng. Com. Law Rep. 137. In so holding, the court of king's bench considers that it is justified by the old common law of England. (1 Smith's Leading Cas. 67.) The distinction as to request, Lord Denman remarks, "is noted and was acted upon in Townsend v. Hunt, Cro. Car. 408, and indeed in numerous old books; while the principle of moral obligation does not make its appearance till the days of Lord Mansfield, and then under circumstances not inconsistent with the ancient doctrine when properly explained." 11 Adol. & El. 438.
4. Rule in Lord Mansfield's time as to moral obligation being a sufficient consideration.
The leading cases on this subject, in his time were Hawkes v. Saunders, Cowp. 290, and Atkins v. Hill, Id. 288. When it was argued before him that to make a consideration to support an assumpsit there must be either an immediate benefit to the party promising, or a loss to the person to whom the promise was made, Lord Mansfield would not agree to that being the only ground of consideration sufficient to raise an assumpsit. "Where," he said, "a man is under a legal or equitable obligation to pay, the law implies a promise, though none was ever actually made. A fortiori, a legal or equitable duty is a sufficient consideration for an actual promise. Where a man is under a moral obligation, which no court of law or equity can enforce, and promises, the honesty and rectitude of the thing is a consideration. As if a man promise to pay a just debt, the recovery of which is barred by the statute of limitations; or if a man, after he comes of age, promises to pay a meritorious debt, contracted during his minority, but not for necessaries; or if a bankrupt, in affluent circumstances after his certificate, promises to pay the whole of his debts; or if a man promise to perform a secret trust, or a trust void
for want of writing, by the statute of frauds. In such and many other instances, though the promise gives a compulsory remedy, where there was none before, either in law or equity; yet as the promise is only to do what an honest man ought to do, the ties of conscience upon an upright man are a sufficient consideration." Cowp. 290. Buller, J. was of the same opinion. "The true rule," he said, "is that wherever a defendant is under a moral obligation, or is liable in conscience and equity to pay, that is a sufficient consideration." S. C. 294.
5. Lord Mansfield's decisions remarked on by Lord Den
The counsel who argued for the plaintiff in Lee v. Muggeridge, 2 Barn. & Adol. 811, 22 Eng. Com. Law Rep. 187, spoke of Lord Mansfield as having considered the rule of nudum pactum too narrow, and maintained that all promises deliberately made ought to be held binding. "I do not," Lord Denman observes, "find this language ascribed to him by any reporter, and do not know whether we are to receive it as a traditional report or as a deduction from what he does appear to have laid down. If the latter, the note to Wennall v. Adney, 3 Bos. & Pul. 249, shews the deduction to be erroneous. If the former, Lord Tenterden and his court declared that they could not adopt it in Littlefield v. Shee." 2 Barn. & Adol. 811, 22 Eng. Com. Law Rep. 187. "Indeed," continues Lord Denman, "the doctrine would annihilate the necessity for any consideration at all, inasmuch as the mere fact of giving a promise creates a moral obligation to perform it. The enforcement of such promises by law, however plausibly reconciled by the desire to effect all conscientious engagements, might be attended with mischievous consequences to society; one of which would be the frequent preference of voluntary undertakings to claims for just debts." Eastwood v. Kenyon, 11 Adol. & El. 348, 39 Eng. Com. Law Rep. 143, 4. If the holder of a gratuitous note can set it up as a legal claim, it would be extremely difficult to apply to his case the rules made for preserving the distinction between volunteers and creditors. Shaw, C. J., in Parish v. Stone, 14 Pick. 203. The conclusion arrived at in the note to Wennall v. Adney, 3 Bos. & Pul. 242, wherein most of the older cases are collected, Lord Denman has said (in Eastwood v. Kenyon, 11 Adol. & El. 348,) seems to be correct in general. It is that "an express promise can only revive a precedent good consideration, which might have been enforced at law through the
medium of an implied promise, had it not been suspended by some positive rule of law; but can give no original cause of action if the obligation on which it is founded never could have been enforced at law, though not barred by any legal maxim or statute provision." Instances are given of voidable contracts, as those of infants, ratified by an express promise after age, and distinguished from void contracts, as of married women not capable of ratification by them when widows, Loyd v. Lee, 1 Str. 94; debts of bankrupts revived by subsequent promise after certificate; and similar cases.
To that note in 3 Bos. & Pul. there is no allusion in Barnes v. Hedley, 2 Taunt. 184, Cooper v. Martin, 4 East 76, or Lee v. Muggeridge, 5 Taunt. 36, 1 Eng. Com. Law Rep. 10. Of these cases, Barnes v. Hedley is deemed fully consistent with the doctrine laid down in that note, and Cooper v. Martin not inconsistent with it; but that doctrine was departed from in Lee v. Muggeridge, and from the authority of this case, there is the dissent of Lord Tenterden, in Littlefield v. Shee, 2 Barn. & Ald. 811; and of Lord Denman, in Eastwood v. Kenyon, 11 Adol. & El. 348.
6. View of Tindal, C. J. on the question whether an executed consideration will support a promise, although express, other than that which the law itself would have implied.
Where the consideration is one from which a promise is by law implied, there no express promise made in respect of that consideration, after it has been executed, differing from that which by law would be implied, can be enforced. Brown v. Crump, 6 Taunt. 300, 1 Eng. Com. Law Rep. 389; Hopkins & wife v. Logan, 5 M. & W. 241; Granger v. Collins, 6 Id. 458; Jackson v. Cobbin, 8 Id. 790; Roscorla v. Thomas, 3 Adol. & El. N. S. 234; 43 Eng. Com. Law Rep. 713. These cases, Tindal, C. J. remarks, may have proceeded on the principle that the consideration was exhausted by the promise implied by law, from the very execution of it; and consequently, any promise made afterwards, must be nudum pactum, there remaining no consideration to support it. 7 Man. & Grang. 815.
The case, he thinks, may perhaps be different where there is a consideration from which no promise would be implied by law; that is, where the party suing has sustained a detriment to himself, or conferred a benefit on the defendant at his request, under circumstances which would not raise any implied promise; it having, in such cases, been held in some instances that the act done at the request of the party charged is a suffi
cient consideration to render binding a promise afterwards made by him in respect of the act so done. Hunt v. Bate, Dyer 272; 1 Roll. Abr. 11, Action Sur Case (Q.); 1 Vin. Abr. 279. These cases were adverted to by Tindal, C. J. in Kaye v. Dutton, 7 Man. & Grang. 816, 49 Eng. Com. Law Rep. 816; but it was not necessary there to pronounce any opinion upon the point.
7. Effect of a promise by a bankrupt to pay a debt from which he was discharged. Conclusion as to how far such, or any other, promise can be supported by a consideration from which the law could not imply a promise.
The subject has been considered in cases where a bankrupt has bound himself by a new promise to pay a debt which. would otherwise be barred by a certificate under a commission, Roberts v. Morgan, 2 Esp. 736; Lang v. Mackenzie, 4 C. & P. 463, 19 Eng. Com. Law Rep. 474; or by the voluntary act of the creditor in giving him a release. Willing v. Peters, 12 S. & R. 182.
If the promise was not absolute but conditional, the condition is to be performed. Scouton v. Eislord, 7 Johns. 36. For example, if the bankrupt should say he would pay when he was able, the plaintiff must shew an ability to pay. Kingston v. Wharton, 2 S. & R. 208. Or if there be any other condition, the plaintiff must shew that which will make the undertaking operative according to its terms. Yates's adm'r v. Hollingsworth, 5 H. & J. 216.
And whether the promise be made before or after the certificate, it must be distinct and unequivocal. It is not enough to prove that the defendant said he was not able at that time to discharge the debt, but that his friends were about to do something for him, and he would pay the debt by instalments. The court will not hold this to be a new promise to pay; it will not, where the defendant has the benefit of a bankrupt or insolvent act, follow Bryan v. Horseman, 4 East 599, and other cases under the statute of limitations, cited ante, 1 Rob. Pract. 514. These, Mansfield, C. J. observed, had indeed gone to an enormous length. Macklow v. St. George, 4 Taunt. 613.
The promise must be one which binds the bankrupt personally to pay not withstanding his certificate; it must be a promise that he, and not his estate, would pay; for the mere acknowledgment of a debt, though implying a promise to pay, would amount to no more than an account stated, and though in writing would be a promise which the certificate would
bar. The only distinction between a promise before and after the certificate, is that in the former it may be more doubtful whether the debtor meant to engage to pay, notwithstanding his discharge under the bankruptcy; but if it is clear that he did, the promise is equally binding. A promise also, before the certificate, is more open to the suspicion that it is tainted with illegality, and void for that reason. Parke, B. 13 M. & W. 770.
But when there is shewn an absolute promise-or a promise on a condition which is performed,-not only is an existing debt which would be barred by a certificate, and which was due by the bankrupt to the plaintiff a good consideration to support the promise to pay it; but a mere liability to repay a surety when he should have first paid a debt for the promiser falls within the same principle. Earle v. Oliver, 2 W. H. & G. 88. Though there be no other consideration than the old debt, the promise is binding whether made before or after the certificate is obtained. Kirkpatrick v. Tattersall, 13 M. & W. 770; Earle v. Oliver; McNarr v. Gilbert, 3 Wend. 347.
It has been objected that a debt or liability, in a course of being barred by a certificate, cannot be treated as the executed consideration for a promise which a debt or liability, not barred by a certificate, would not support, and that by the course of modern decisions in Roscorla v. Thomas and other cases cited ante, p. 310, a debt cannot be laid as an executed consideration for any promise which the law would not imply from it; and that a promise to pay, whenever the party was able, was never implied. Adverting to the principle laid down by Lord Mansfield in Hawkes v. Saunders, Cowp. 290, and Atkins v. Hill, Cowp. 288, and to the able note to Wennall v. Adney, 3 Bos. & Pul. 252, Baron Parke says, "the instances given to illustrate the principle are, amongst others, the case of a debt barred by certificate and by the statute of limitations; and the rule in these instances has been so constantly followed, that there can be no doubt that it is to be considered as the established law. Debts so barred are unquestionably a sufficient consideration for every promise absolute or unqualified, qualified or conditional, to pay them. Promises to pay a debt simply, or by instalments, or when the party is able, are all equally supported by the past consideration, and when the debts have become payable instanter, may be given in evidence in the ordinary declaration in indebitatus assumpsit. So, when the debt is not already barred by the statute, a promise to pay the creditor will revive it and make it a new debt, and a promise to an executor to pay a debt due to a testator, creates