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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
a new debt to him. But it does not follow that, though a promise revives the debt in such cases, any of those debts will be a sufficient consideration to support a promise to do a collateral thing, as to supply goods, or perform work and labour; and so indeed it was held in this court in the case of Reeves v. Hearne, 1 M. & W. 323. In such case it is but an accord unexecuted, and no action will lie for not executing it. We think, therefore, that the conditional promise to pay the debt would be good in this case, and supported by the original consideration; and a conditional promise, which, when absolute, will be only a renewal of the original liability, and to the same extent, is equally good and supported by the original consideration." Earle v. Oliver, 2 W. H. & G. 90; Wolridge v. Harrow, 18 Vermont 448.
Still an express promise cannot be supported by a consideration from which the law could not imply a promise except where the express promise does away with a legal suspension or bar of a right of action which but for such suspension or bar would be valid. This result was adhered to in Beaumont v. Reeve, 8 Adol. & El. N. S. 487, 55 Eng. Com. Law Rep. 487. It may deserve consideration, how this rule shall be applied when a sheriff from whom a debtor escapes pays the debt, and the debtor afterwards promises him to pay it. In New York the consideration has been adjudged sufficient and an action maintained on the promise. Doty v. Wilson, 14 Johns. 381. What the defendant did was considered an adoption of the payment-an adoption of it as made for his benefit the court treated the subseqent ratification as equivalent to an original command; it was an act equivalent to a previous request or from which a previous request might be implied. Oatfield v. Waring, 14 Johns. 188; 13 Barbour
508. But under other circumstances the court has acted upon the conclusion in the note to Wennall v. Adney. The langnage of that note was adopted in Smith v. Ware, 13 Johns. 257, and this case was approved in Ehle v. Jadson, 24 Wend. 97, and Chilcott v. Trimble &c. 13 Barbour 508.
8. Whether past cohabitation is a sufficient consideration for a promise. Action may be maintained on promise to pay for support of child, if not for board of mother.
In a former page (32), cases of deeds have been referred to in which the question was whether the consideration was so illegal as to make the deed (which required no consideration) void. A very different question arises when the action is on a promise. In England past cohabitation alone or the ceasing
to cohabit in future, is not a sufficient consideration to sustain a promise. Binnington v. Wallis, 4 Barn. & Ald. 650, 6 Eng. Com. Law Rep. 554. In such case the mere moral consideration is nothing, Parke, B. in Jennings v. Brown, 9 M. & W. 500; not even though the defendant is the seducer of the plaintiff; for in England as the seduction can give the plaintiff no direct right of action, so it creates no liability of any kind from which a consideration can arise. Beaumont v. Reeve, 8 Adol. & El. N. S. 487, 55 Eng. Com. Law Rep. 487.
In a future chapter there will be occasion to remark on ch. 148, 1, (p. 589) of the Code of Virginia, which provides that "an action for seduction may be maintained without any allegation or proof of the loss of the service of the female by reason of the defendant's wrongful act." It may be that in this state, as in Pennsylvania, it will be considered the duty of a man who has humbled a woman to provide for her; and that when after past cohabitation he has made a promise to give her a bond, an action will be maintained on such a promise. Shenk v. Mingle, 13 S. & R. 32.
In New York there was the following case. The plaintiff's daughter became the mother of an illegitimate child. The defendant was the reputed father and promised to pay the plaintiff for their board. About two months after, another child was born, of which the defendant was also the father. Shortly afterwards he made a similar promise. It was adjudged that for this promise there was a lawful and sufficient consideration, notwithstanding the plaintiff knew that the defendant, before the birth of the first, and until after the birth of the second child, frequently visited her daughter at the plaintiff's house, and during all that time frequently cohabited with the daughter; it did not appear that the defendant ever cohabited with her after the second promise was made. Trovinger v. McBinney, 5 Cow. 254.
Even in England, it may be a matter of bargain that the woman is to take care of the child. As the father might have the child affiliated on him, the woman's supporting the child is a sufficient consideration to sustain a promise by the father to pay her therefor. Jennings & wife v. Brown &c. 9 M. & W. 495.
The promise may be to pay the mother a yearly sum if she shall properly bring up the child. Hicks v. Gregory, 8 Man. Gr. & Scott 385, 6, 65 Eng. Com. Law Rep. 385, 6. In this case the promise was in a letter. "Suppose," says Wilde, C. J., "the letter had been addressed to a stranger who had no interest in the child, and upon whom there rested no duty or ob