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of a party to become a partner in a firm, is a sufficient consideration for a promise to receive him as a partner (f). But here we must again advert to the principle before explained, that in the case of mutual promises, there must be a reciprocity of obligation; and that if the promise of one party be not binding on him, the engagement of the other party is not in general obligatory (g), unless there be an actual detriment to himself or advantage to the other party (h).
Moral OBLIGATION.-A mere moral obligation to pay a demand, or perform a duty, is in many cases a sufficient consideration for an express promise, although no legal liability existed at the time of making such promise (i). The law allows a man effectually to promise to do that which justice clearly demands from him. As if a debtor promise to pay a debt, the recovery whereof is barred by the statute of limitations (k), or by infancy (l), or if a bankrupt (even without any new consideration) before or after his certificate, by a written memorandum signed by himself, or by an agent authorised by him in writing, promise to pay his former debts (m). And on this ground, as well as on the principle that a party may waive rules of law introduced for his own benefit and protection (n), a party to a bill of exchange, who is discharged for want of due notice of its dishonour, is liable if he subsequently promise payment (o).
In general, however, 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
(1) M'Neil v. Reid, 2 M. & Sc. 89. cited ante, 43, n. (0) (g) Ante, 15; and see Sykes v. (k) See as to this promise, which Diron, 1 P. & Dav. 463; per Lord must be in writing, post, 819. Abinger, Hopkins v. Logan, 7 Dowl. (1) Post, 152. 366; 5 M. & W. 241; post, 877. (m) Post, 191. But an insolvent
(h) Morton v. Burn, 7 A. & E. 25. debtor's new promise is, under the
(1) 2 Bla. Com. 445; 3 Chit. Com. statute 1 & 2 Vict. c. 110, s. 91, not L. 72; per Lord Mansfield, C. J., binding on him; post, 202; Ashley v. and Buller, J., in Hawkes v. Saunders, Killick, 5 M. & W. 509; Evans v. Cowp. 290, 294; per Lord Ellenbo- Williams, 1 C. & M. 30; 3 Tyr. 226, rough, Atkins v. Banwell, 2 East, 506; S. C.; post, 202; Philpott v. Astlett, per Mansfield, C. J., in Gibbs v. Mer- 1 C., M. & R, 85; 2 Dowl. 669. rill, 3 Taunt. 311; Lee v. Mugge- (n) Bonner v. Wilkinson, 5 B. & ridge, 5 id. 36; see a learned note to Ald. 606. Wennall v. Adney, 3 B. & P. 249; (o) Lundie v. Robertson, 7 East, 2 Saund. 137d, n. (b); per Best, C. J., Gibbon v. Coggon, 2 Camp. Seaman v. Price, 2 Bing. 438, 439, 168; Taylor v. Jones, id. 105.
never could have been enforced at law, though not barred by any legal maxim or statute provision. This principle was recognized in the late case of Eastwood v. Kenyon (p), in which all the cases on this subject were considered; there the declaration, charging the defendant on a promise to repay the plaintiff money laid out by him in the maintenance of an infant, who afterwards became the defendant's wife, and in the improvement of her land, alleging that the defendant, in right of his wife, had received the benefit of all the moneys so expended, was held bad in arrest of judgment. But a promise to pay a sum of money, with legal interest, which sum had originally been lent on usurious terms; but in taking the account of which, all usurious items had by agreement been struck out, is founded on a sufficient consideration, and is binding (9). So where a feme covert, having an estate settled to her separate use, gave a bond for repayment, by her executors, of money advanced, at her request, on security of that bond, to her son in law; and after her husband's decease, she wrote, promising that her executors should settle the bond, it was held that there was a sufficient moral obligation to support the promise, and that the executor was liable thereon (r). In Littlefield v. Shee (s) it appeared that the plaintiff, a butcher, had supplied the defendant, who was a married woman, with meat for her own use, whilst her husband was abroad; and that after his death she promised payment when of ability. It was held that she was not liable on a declaration, alleging the consideration to be the former supply of goods to her,—for in law, this imported that she was the debtor, whereas the husband was the party originally liable. The case was decided upon the ground of variance. But Lord Tenterden, C. J., in delivering the judgment of the court, said ” In Lee v. Muggeridge all the circumstances which shewed that the money was in conscience due from the defendant, were correctly set forth in the declaration. It there appeared upon the record, that the money was lent to her, though paid to her sonin-law, while she was a married woman; and that after her
(p) Eastwood v. Kenyon, 3 P. & Dav. 276. Semble, a promise in consideration of past seduction, &c. is not good; post, 663. The paragraph in next page on this subject is incorrect.
(r) Lee v. Muggeridge, 5 Taunt. 36. A declaration stating “ that defend. ant was living in adultery separate from husband; that plaintiff did not know of marriage or adultery; and that defendant, after her husband's death, promised payment, does not shew a sufficient consideration; Meyer v. Haworth, 8 Ad. & E. 467.
() Barnes v. Hedley, 2 Taunt. 184; per Gibbs, J., Lee v. Muggeridge, 5 id. 47; Harrison v. Hannel, id. 780; pe ? Stark. R. 237; 1 R. & M, 123;
(s) 2 B. & Ad. 811.
husband's death, she, knowing all the circumstances, promised that her executor should pay the sum due on the bond. I must also observe, that the doctrine that a moral obligation is a sufficient consideration for a subsequent promise, is one which should be received with some limitation (x)."
Where the plaintiff had paid the defendant the whole of a demand claimed by him, but part of which was due to C., Lord Ellenborough held that the defendant's promise to indemnify the plaintiff against C.'s claim, was founded on a sufficient moral obligation to render it binding, although such promise was made by the defendant after he had received the money from the plaintiff (y).
Upon the same principle, past seduction of, and cohabitation with the plaintiff, a female, seem to afford a sufficient consideration for an express promise to pay money to her, for her support; there being a moral obligation to redress, as far as possible, the injury inflicted (2).
The case of Cooper v. Martin (a) also supports the principle that an erpress promise to pay a sum of money may be supported, though it be founded on a mere moral and not a legal obligation. In that case the plaintiff married a widow, who had children by her former husband. The defendant was one of such children. Before the plaintiff married the widow, she maintained these children; and after the marriage with the plaintiff, he maintained them. When the defendant came of age, he promised the plaintiff to repay him the expense which he had incurred in maintaining him. The Court held that such promise was founded on a sufficient consideration ; especially as the plaintiff was a man of small substance, and the children had a competent provision to receive when they came of age, which was to accumulate for them
(7) And see post, 50. In Lee v. Mug- the husband was abroad; that the geridge, the declaration shewed that plaintiff would not, or did not, trust the wife alone caused the creation of him, and supplied the goods for her the debt, and induced the plaintiff to use, solely on her credit. give credit. In that case the husband (y) Lord Suffield v. Bruce, 2 Stark. was not liable for the money lent. R. 175. There was, therefore, a strong and (2) Gibson v. Dickie, 3 M. & Sel. peculiar claim in justice against the 463; Binnington v. Wallis, 4 B. & widow. In Littlefield v. Shee, the de- Ald. 650; post, Index, Immoral Conclaration did not shew any such moral tracts ; see another instance, Duhamobligation on her part. Perhaps the mel v. Pickering, 2 Stark. R. 94. plaintiff would have been entitled to (a) 4 East, 76. See Peak, Add. C recover, had the declaration shewn that 79, 226; and post, 51.
in the mean time, and he made no application to Chancery for an allowance out of the fund, as he might have done, the law not compelling him to maintain such children. But it seems that unless there be an express promise in such case, the father-in-law cannot maintain an action; at all events if the circumstances shew that he originally intended to educate and bring up the child gratuitously (b).
OF GRATUITOUS PROMISES.- It will be observed, that, in the preceding instances, there was something more than a mere imperfect or vague duty to support the promise. In all the cases in which a moral obligation has been deemed a sufficient consideration for the defendant's promise, he had received some benefit from the plaintiff; justice required compensation at his hands; and nothing but the provision of some positive law had interposed to preclude a legal remedy for the recovery of a remuneration for such benefit, until the defendant expressly promised to do the plaintiff justice (c).
The term moral obligation is very difficult to be defined for the purpose of legal reasoning, although it may perhaps be sufficiently definite for the purpose of the science of ethics, to which it belongs; wherein the source of obligation and sanction for its performance are referred wholly to the internal sense of rectitude in the person supposed to be affected by it. A term so familiar in its application does not at first view appear to present any peculiar difficulty; but when examined with a view to legal precision, the apparent facility ceases, and whilst certain attributes are applied to the indefinite term, the criterion by which the propriety of the term, and the extent of the consequences applied to it, are to be determined in particular instances, is itself by no means clearly settled. It will hardly be contended, that every duty of imperfect obligation, the existence of which can be demonstrated by the science of ethics, can be the consideration of a valid promise to be enforced by the coercion of the law. The duties of gratitude and beneficence are allowed to be real and very extensive sources of moral obligation, but are never held an adequate foundation for legal responsibility. A declaration, that in consideration that John had formerly lent a sum of
(6) Pelley v. Rawlins, Peak, Add. C. 226; cor. Lawrence, ú.
(c) See Wennall v. Abney, 3 B. &
P. 251, 252, note (a); and see ante, 49, nole (r).
money to Richard, which had been attended with very beneficial consequences, and that John being now in indigent circumstances, Richard promised to pay him 1001. a year, would scarcely be expected to stand the test of a demurrer; but the morality of the obligation would be supported by every principle of ethical reasoning (d).
We have seen that natural love and affection, or friendship, may be a good consideration to raise an use, upon a conveyance by bargain and sale (e); but it seems to be clear law at the present day, that they do not form a sufficient consideration for a promise (f).
In Halliday v. Atkinson (g), which was an action on a promissory note, against the executor of the maker, it appeared that the note was made in favour of the plaintiff, then an infant aged nine years, by the testator, who was intimate with the father of the plaintiff, and who was in an imbecile state, but there was no evidence of consideration. The court held that gratitude to the plaintiff's father, or affection for the plaintiff, did not form a sufficient consideration.
The education of a child by its parent is only a duty of imperfect obligation; and it seems, therefore, that a person cannot recover from the parent expenses incurred in educating his children, unless there be an express contract, or peculiar circumstances from which a promise of repayment can be inferred (h).
A gift is not good and binding unless it be by deed, or unless the thing which forms the subject of the gift, be actually delivered to the donee (i). To give effect to a promise, merely be
(d) See Appendix to Pothier on it is doubtful whether Noy does not Obligations, by Evans, vol. ii. p. 406; allude to natural affection, merely as a and see ante, 49, and note (x). In consideration to raise an use. He adds, the instance put by Mr. Evans, it is that long acquaintance and great famiof course to be understood that the liarity, are not a sufficient consideramoney lent by John had been repaid; tion. leaving no other consideration than (g) 8 D. & R. 163; 5 B. & C. 501, the obligation arising from the former S. C. act of kindness, and its consequent (h) Hodges v. Hodges, Peake, Add. advantage to the borrower.
C. 79; cor. Lord Kenyon. (e) Ante 6, note (u).
(i) Smith v. Smith, 7 C. & P. 401; ( See id., Bret v. G. S. and Wife, Irons v. Smallpiece, 2 B. & Ald. 558; Cro. El. 755; Lampleigh v. Braith- Hewlins v. Shippam, 5 B. & C. 228; waite, Hob. 105; Harford v. Gardener, 2 Saund. 47 a, note. See Clay v. Wil2 Leon. 30; Best v. Jolly, 1 Sid. 38. lis, 1 B. & C. 364 ; 2 D. & R. 539, See 2 Lev. 32; Gully v. Bishop of S. C., in which a promise to pay the Ereter, 10 B. & C. 601, per Bayley, plaintiff a sum he was not strictly enJ. See, however, Noy, Max. 21. "But titled to, was held void.