[*115]

to do. In *such cases it is clear, that if there be no express promise to remunerate him, remune

an account was stated between the husband on behalf of himself and wife of the one part, and the defendant of the other part, concerning moneys lent by the wife to the defendant, and remaining unpaid before and after the time of the intermarriage. Upon the account so stated the defendant was found indebted to the plaintiffs in a large sum of money; and in consideration of the premises promised to pay the same on the first of October then next ensuing. Thus the express promise was to pay money previously lent by the plaintiff's wife to the defendant on a certain day, whereas the promise implied by law arising upon an account stated between the parties, was to pay on request, and it was held that any other promise was nudum pactum.

Roscorla v. Thomas was an action for breach of warranty of a horse. The declaration alleged that, in consideration that the plaintiff, at the request of the defendant, had bought of him a horse for 301., the defendant promised that he was sound and free from vice. It was objected, in arrest of judgment, that the executed consideration would not support the subsequent express promise that the horse was sound. an engagement of any other description. And if a past consideration were sufficient to give such an engagement validity, the danger would be as great, for men, though but little disposed to promise further compensation for past services in their own case, are sufficiently ready to believe such an allegation in that of another, especially if supported by any plausible pretence, that the amount originally bargained for was insufficient. The chance of an erroneous verdict would be still greater in those instances, in which a bargain has resulted disadvantageously for one of the parties, and where he has induced the other to hold any language which can be construed or perverted into a promise of indemnification. The necessity for proving the existence of a cotemporaneous consideration, obviates this danger, by bringing the evidence back from words to things, which are not so easily susceptible of mistake or falsification. The uncertainty which results from looking to the subsequent language of a party, as the test of his liability, has been found so great in the cases arising under the Statute of Limitations, as to lead to the introduction, in England, and some parts of this country, of legislative enactments, making it necessary that the acknowledgment of the debt should be in writing, and not be proved by mere verbal testimony. Yet in that case, the only effect of the evidence is to revive an anterior

ration cannot be enforced. But it has been

made a great question, and has been frequently [116]

The Court held, after Cur. Adv. Vult, that, "the promise in the present case, must be taken to be, as in fact it was, express; and the question is, whether that fact will warrant the extension of the promise beyond that which would be implied by law; and whether the consideration, though insufficient to raise an implied promise, will nevertheless support an express one. And we think that it will not. The cases in which it has been held that, under certain circumstances, a consideration insufficient to raise an implied promise will nevertheless support an express one, will be found collected and reviewed in the note to Wennall v. Adney, 3 Bos. & Pul. 249, and in the case of Eastwood v. Kenyon, 11 Ad. & Ell. 438, 39 E. C. L. R. They are

liability, of which the original existence is proved aliunde, and it is therefore easy to imagine what would be the result if every transaction of human life were open to the interpretation which a witness or jury might choose to give to any subsequent conversation of which it is made the subject. It would, therefore, appear, that the rules of the common law with respect to considerations, so far from deserving the reproach of narrowness and illiberality which has been sometimes cast upon them, are really founded upon a just appreciation of the uncertainty of testimony, and the exigencies of life, and should be sedulously upheld and applied, and not explained away or disregarded. It may safely be asserted that they do more to prevent fraud and perjury than any legislative enactment which has been, or can be devised for that purpose, and that if they had not been laid down and defined by judicial sagacity, it would be necessary to introduce them by legis lative authority."

It is necessary to distinguish the class of cases referred to, from those which decide that a promise to pay a debt barred by the statutes of bankruptcy or limitation is based upon sufficient consideration. Some expressions in the cases would seem to conflict with the general principle just referred to, but in reality the grounds of decision are in harmony. The promise of a debtor to pay a debt so barred, although it is often called a new promise, is in reality rather a waiver of the bar which the statute has interposed. In pleading, it is sufficient to count on the original debt, and when the statute is pleaded, the evidence offered under the replication of a new promise or acknowledgment within six years, forms no variance between the declaration and the proof, for whether the defendant is liable by reason of the original

discussed whether, *even if there be an express

[*117] promise, any request can be implied in order to

cases of voidable contracts subsequently ratified, of debts barred by operation of law, subsequently revived, and of equitable and moral obligations, which, but for some rule of law, would of themselves have been sufficient to raise an implied promise. All these cases are distinguishable from, and indeed inapplicable to, the present, which appears to us to fall within the general rule, that a consideration past and executed will support no other promise than such as would be implied by law."

Here it will be seen that no promise was implied by law, but neither was there any previous express request: this decision therefore strongly supports the position that an express promise alone will not suffice, even where the law implies no promise. In Hopkins v. Logan, there was a promise implied by law.

Express request appears to be unnecessary where the promise is implied by law. In Victors v. Davies, 12 M. & W. 758, the Court. of Exchequer held, as we have seen, that it was not necessary to aver a previous request to support a count for money lent. Mr. Baron Parke very strongly marks the distinction between the cases where the law implies a promise, and where it does not imply it, as determining the necessity of a previous request. "There cannot," he consideration for the debt, or by reason of his subsequent acknowledgment, is immaterial, provided the plaintiff prove the original consideration, and the liability at the time of suit brought, and if that liability arise from the new promise, it is just such a liability as the law implies from the old consideration, and hence the new promise accords with the old one, and there is no variance. This will be found fully explained in the note to Whitcomb v. Whiting, 1 Smith's Leading Cases, 621, 4th Am. ed. But in the ordinary case of a precedent debt, a declaration setting forth that the plaintiff had contracted to build a wagon for $100, and that having done so, the defendant, in consideration thereof, promised to pay him $200, would be clearly bad, for such a promise would not be implied by law from the old consideration, which was the only one. So, in the case of an indebtedness to two persons jointly, a promise by the debtor, in consideration of the promise, to pay one-half the debt to one of them, could not be enforced, for it is not such a promise as the law implies from the old consideration, and this was the case of Vadakin v. Soper, supra.

support the consideration. On this question, which is but a branch of one which has been often the sub

says, "be a claim for money lent unless there be a loan, and a loan implies an obligation to pay. If the money is accepted, it is immaterial whether or not it is asked for. The same doctrine will not apply to money paid, because no man can be a debtor for money paid, unless it was paid at his request. What my brother Manning says, in the note to which I have referred, is perfectly correct." In this masterly comment by Serjt. Manning, which will be found in 1 M. & Gr. 265, n. a, 39 E. C. L. R., he confutes the contrary doctrine put forth by Mr. Serjt. Williams, in his note to the case of Osborne v. Rogers, 1 Saund. 264, n. 1. Serjeant Manning says:-"Even where the consideration is entirely past, it appears to be unnecessary to allege a request of the act stated, as the consideration cannot, from its nature, have been a gratuitous kindness, but imports a consideration per se."

Express requests are therefore of limited avail; for it is thus settled, by the concurrent judgment of the three Courts, that where the promise made differs from that implied by law, such express promise cannot be enforced, and express promises are therefore nugatory in such cases, whether there be an express request or not. In Hopkins v. Logan, the law would, according to the doctrine in Victors v. Davies, have implied the request, had the promise itself been that which the law implied; and Mr. Justice (then Baron) Maule went further, and laid down the rule of law too broadly to admit of any qualification in the case of an express request :-" An executed consideration is no consideration for any other promise than that which the law would imply; if it were, there would be two coexisting promises on one consideration." It would appear that the maxims, "Expres sum facit cessare tacitum," as well as "Omnis ratihibitio retrotrahitur et mandato equiparatur," do not apply where it is sought to uphold a past consideration by any different promise than that implied by law.

Where no promise is implied by law from the executed consideration, it is certainly deducible, no less from old law than from the recent judgment in the Common Pleas, that an express promise may be enforced, provided the consideration were moved by a previous express request. Hunt v. Bate (see ante) implies that a request would have sufficed; and in Lampleigh v. Braithwaite it is laid down, in express terms, that "if a voluntary courtesy be moved by a suit on request of the party that gives the assumpsit, it will bind: for the promise that

ject of anxious consideration, namely, in what cases a moral obligation is a sufficient consideration to support a promise, you may see Lee v. Muggeridge, 5 Taunt. 36; Atkins v. Banwell, 2 East, 505, the note to Wennall v. Adney, 2 B. & P. 250; Eastwood v. Kenyon, 11 A. & E. 438.(a)1

follows is not naked, but couples itself with the suit before and the merits procured by that suit."

It follows from the foregoing cases, that where the consideration is executed, an express promise without an express previous request is in no case of avail;-and where it is preceded by an express request, then only where the law implies no other promise.

(a) The recent cases leave no doubt on the subject. There being no promise implied, by law, the rule laid down in the last note does not determine this question; but the law of moral obligation does, which is concisely stated by Mr. Baron Parke, in Jennings v. Brown, 9 M. & W. 501 :-"A mere moral consideration, which is nothing :" and Tindal, C. J., in Kaye v. Dutton, says, "A subsequent express promise will not convert into a debt that which of itself is not a legal debt." If more authority be required on the point, it will be found in the judgment to which Mr. Smith refers in Eastwood v. Kenyon, where the conclusion deduced from the cases in the note to Wennall v. Adney, 3 Bos. & Pul. 247, is upheld, and is as follows:-"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

1 In some of the earlier American cases, there were many dicta, and a few decisions in favour of a moral consideration being sufficient to support a promise; Greeves v. M'Allister, 2 Binney, 591; Willing v. Peters, 12 Serg. & Rawle, 177; Doty v. Wilson, 14 Johnson, 378; but these cases, like the English decisions in Lee v. Muggeridge, and Wing v. Mill, 1 Barn. & Ald. 104, were subsequently expressly overruled by Snevily v. Reed, 9 Watts, 396; Kennedy v. Ware, 1 Barr, 445; Mills v. Wyman, 3 Pick. 207; Beaumont v. Reeve, 8 Queen's Bench, 483, 55 E. C. L. R.; Cook v. Bradley, 7 Connect. 57; Loomis v. Newhall, 15 Pick. 159; Dodge v. Adams, 19 Id. 429; Kinnerly v. Morton, 8 Missouri, 698; Kenan v. Holloway, 16 Alab. 58; and such a doctrine may, perhaps, be now fairly considered as having no established place in the jurisprudence of either country.