supporting a promise must be confined to cases where the request implies a contract to pay and do not mean that what was done as a mere favor can be turned into a consideration at a later time by the fact that it was asked for."

$44. Doing What the Promisor was Legally Bound to do. In a few early English cases, arising under special circumstances, it was ruled that if one man voluntarily does that which another was legally compellable to do, and the latter afterwards promises to reimburse him, the promise is enforceable.1 Anson says that "the promise, in the cases cited to support this supposed rule, was either based upon a moral obligation which, since the decision in Eastwood v. Kenyon2 would be insufficient to support it, or was an acknowledgement of an existing liability arising from a contract which might be implied by the acts of the parties.'

In this country, it has been held that if one voluntarily pays a debt due by another, a subsequent promise by the latter to reimburse him is enforceable.* But if no such promise be made, the voluntary payment by one person of a debt due by another imposes no liability upon the latter.”

$ 45. Benefit Conferred Under Void Contract. A few cases hold that a promise to pay for services rendered under a void contract is supported by the moral obligation.1 The promise may also be regarded as the ratification of a void act.

1 Wing v. Mill, 1 B. & Ald. 105; Paynter v. Williams, 1 C. & M. 810. 2 11 A. & E. 438.

3 Contracts, 119.

4 Wright v. Farmers Bank, 31 Tex. Cir. Ap. 406; Doty v. Wilson, 14 Johns. 378; Gleason v. Dyke, 22 Pick. 390. Contra: Mass. Ins. Co. v. Green, 185 Mass. 306, where the person making the payment supposed erroneously that he was paying his own debt.

5 Dougherty Co. v. Gring, 89 Md. 535; Hearn v. Cullin, 54 Md. 542; Mayor, etc., v. Hughes, 1 G. & J. 480. The reasons for this rule are well stated in Turner v. Egerton, 1 G. & J. 433.

1 Muir v. Kane, 55 Wash. 131; Edson v. Poppe, S. D. (124 N. W. 441); 26 L. R. A. (N. S..) 534; Bailey v. Philadelphia, 167 Pa. 569; Trimble v. Rudy, 53 L. R. A. 353, 373, and note. Contra: Stout v. Humphrey, 69 N. J. L. 436; Hobbs v. Greifenhagen, 91 Ill. App. 400. See cases cited in note to Muir v. Kane, 26 L. R. A. (N. S.) 520.

EXCEPTIONS AS TO PART CONSIDERATION

117

It has been said that the principle is "that when the consideration was originally beneficial to the party promising, yet if he be protected from liability by some provision of the statute or common law made for his advantage, he may renounce the benefit of such law and if he promises to pay the debt which is only what an honest man ought to do, he will then be bound by law to perform it **** Here the defendant says, 'I could not then make the promise, I can now, and I am willing to do so." "2

Upon this principle may be supported the promise of a woman who has become discovert to pay a debt incurred while married, when the contract was void. But as previously stated, the decisions on this point are contradictory.*

Upon some questions in the law relating to consideration. there is a tendency to a divorce between what is called in the civil law the doctrine, that is the opinions of jurists and theoretical writers, and the jurisprudence, that is, the decisions of the Courts. The principal modern writers condemn, as being repugnant to the true theory of consideration, the decisions referred to in sections 41, 43, 44 and 45, which enforce the promises there mentioned.

There are

§ 46. Exceptions to the Rules of Consideration. very few exceptions to the rule that no simple promise will be enforced unless it was made for a consideration contemporaneously given. The chief exception is in the case of negotiable instruments which may be enforced by the holder in due course against a voluntary promisor. This liability was finally established as a general principle of the law merchant, under the decisions of Lord Mansfield in the 18th Century, and not as an exception to the then undeveloped theory of consideration. It is now confirmed by statute in the negotiable instrument law as well as by adjudication.

2 Pollock, C. B., in Flight v. Reed, 1 H. & C. 703, citing Earle v. Oliver, 2 Exch. 90, and Lee v. Muggeridge, 5 Taunton, 36. See Sheldon v. Haxton 91 N. Y. 124.

3 Goulding v. Davidson, 26 N. Y. 604.

4 See ante, sec. 33, note 5.

In a few other cases, a promise not supported by a consideration is enforced upon grounds of estoppel. The promises in such cases of estoppel generally relate to the extinguishment of a contract rather than to its formation.1

Acknowledgment of barred debts. Real exceptions to the rule as to the insufficiency of a past consideration or of a moral obligation occur when the promise amounts to a renunciation of a defense afforded by statute to what was at one time an enforceable liability.

A promise to pay a debt barred by the statute of limitations revives the remedy. Not only does an express promise to pay such a debt remove the bar of the statute, but an acknowledgment of it as a subsisting debt, is also sufficient for that purpose, because then a promise to pay will be implied. A part payment of principal or interest is such an acknowledgment.*

A promise by a bankrupt or insolvent to pay a debt from which he has been discharged by law is a waiver of the discharge.5

A promise by a person after coming of age to pay a debt contracted during infancy removes the defense of infancy.

1 See post, part vi, ch. 1.

2 Oliver v. Gray, 1 H. & G. 204, note; Elliott v. Nichols, 7 Gill, 86, note.

3 Shipley v. Shipley, 66 Md. 558; Wilmer v. Gaither, 68 Md. 342; Hall v. Bryan, 50 Md. 194; Boone v. Colehour, 165 Ill. 305; Campbell v. Holt, 115 U. S. 625. As to what constitutes such an acknowledgment of a debt as amounts to a promise to pay it, see Beeler v. Clarke, 90 Md. 221; Gill v. Donovan, 96 Md. 518; Gill v. Staylor, 97 Md. 665. As to acknowledgment by testimony in another case, see Babylon v. Duttera, 89 Md. 444. As to the effect of an acknowledgment by an executor, see Houck v. Houck, 112 Md. 122.

4 Burgoon v. Bixler, 55 Md. 384. The payment must be expressly made as a partial discharge of a larger sum then admitted to be due. Ryan v. Canton Bank, 103 Md. 428.

5 Yates v. Hollingsworth, 5 H. & J. 216; Wolffe v. Eberlein, 74 Ala. 99; Shaw v. Burney, 86 N. C. 334; Katz v. Moessinger, 110 Ill. 372; Dusenbury v. Hoyt, 53 N. Y. 521; Allen v. Ferguson, 18 Wall. 1.

Tibbitts v. Gerrish, 25 N. H. 41; Barlow v. Robinson, 174 Ill. 317.

A promise by an endorser of a negotiable instrument to pay it is enforceable although he was discharged from liability on account of the failure to give him notice of dishonor.7

But a promise to pay a debt which has been voluntarily released under seal by a creditor is not binding because the release is regarded as having extinguished the debt.8

7 Yeager v. Farwell, 13 Wallace, 6; Ross v. Hurd, 71 N. Y. 14; Turnbull v. Maddux, 68 Md. 579.

8 Ingersoll v. Martin, 58 Md. 67.

$ 47.

CHAPTER III

FORMAL CONTRACTS

Classification. All contracts are divided, according to most English writers, into three classes of: 1. Contracts of Record. 2. Contracts under seal. 3. Simple contracts, and this third class is subdivided into (a) contracts required to be in writing, and (b) contracts which may be orally made.1

In some cases the law allows the parties complete liberty in forming contracts, so that words, actions, signs, or even silence may produce that effect, provided the consent of the parties and a consideration are established. This is the case with all simple or parol contract not required to be in writing. In other cases, the law restricts the choice of means and provides that the effect aimed at can only be achieved by the use of a certain form of expression, the neglect to use which may cause the attempted act to be either void or unenforceable. The most solemn forms may indeed be used when not legally necessary, but that does not make the contract a formal one. It is the legal necessity for the use of the form that determines this question.2 Whenever a form is required for a contract it is a formal one, whether a consideration is also requisite or not.

§ 48. Formalism. The infancy of all systems of law is characterized by an excessive devotion to words and forms.

1 Addison on Contracts, 2; Leake, Contr. 1; Smith, Contr. 3; Parsons, Contr. 7. "The law makes no distinction in contracts except between contracts which are and contracts which are not under seal." Lord Abinger in Beckham v. Drake, 9 M. & W. 92. "All contracts are by the laws of England distinguished into agreements by specialty and agreements by parol; nor is there any such third class, as some of the counsel have endeavored to maintain, as contracts in writing." Rann v. Hughes, 7 Term. Rep. 350, 351.

2 Von Jhering, Geist des römischen Rechts, § 50. What is said in this and the following section concerning formalism is chiefly derived from $$ 49 and 50 of that work (French translation, vol. 3, pp. 134187).