Sec 512

Gratitude for past benefits will not support a promise to repay the benefactor, unless the benefit was in some way conditioned on the promise. We have, it is true, the high authority of Lord Mansfield to the effect that," 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;"1 and for a time this position was accepted by the courts.2 Where, for instance, a married woman borrowed money on her bond, which was void on account of her coverture, and after her husband's death gave a written promise to pay the debt, it was held that the "moral obligation" incumbent on her to pay the debt, though not one that bound her at the time it was incurred, was a sufficient consideration for the written promise made on her discoverture.3 But it was soon felt that if a moral obligation in one case would sustain a promise, moral obligations in all other cases would have the same effect; and that as in complex conditions of society there are few persons who are not under some sort of moral obligation to those with whom they deal, to treat moral obligations as always a sufficient consideration, would be to do away with the rule by which consideration is required. Hence, Lord Mansfield's opinion that a moral obligation is a consideration to support a contract was soon afterwards abandoned even in his own court;4 and it is now settled, both in Englaud and the United States, that no merely moral obligation, no matter how strong, can support a promise unless the benefit from which the obligation arises was conditioned on the promise.5 A promise by a son, for instance, to take an extreme case, to pay for support given an aged and destitute parent, is void as without consideration;1 nor is a father bound by a promise to pay for aid rendered to an adult son during sickness.2 Even negotiable paper, as between the parties, will not be sustained by a consideration consisting of mere gratitude for a benefit previously conferred.3 No matter how sacred the duty may be, it will not sustain a promise, unless the one were conditioned on the other, for the courts can no more discriminate between duties more or less sacred, and thus constitute themselves the arbiters of ethics, than they can discriminate between prices more or less adequate, and thus constitute themselves the arbiters of the market.4 Even an agreement by a man to pay a yearly sum to a woman whom he had seduced to support her in her destitution has on this ground been held inoperative.5 And a promise made by a When considerations are divisible, illegal or inoperative may be rejected.

1 Supra, sec 296 et seq.

2 Supra, sec 298 et seq.

3 Leake, 2d ed. 630; supra, sec 338-9; Metc. Con. 193; Ch. on Con. 11th Am. ed. 69; Shackell v. Rosier, 2 Bing. N. C. 646; King v. Sears, 2 C. M. & R. 48; Goodwin v. Clark, 65 Me. 280; Bliss v. Negus, 8 Mass. 51; Loomis v. Newhall, 15 Pick. 159; Andrews v. Ives, 3 Conn. 368; Hook v. Gray, 6 Barb. 398; Tracy v. Talmage, 14 N. Y. 162; Wiggins v. Keiser, 6 Ind. 252; infra, sec 338.

4 Crookshank v. Rose, 5 C. & P. 19; see to same effect Carleton v. Woods, 28 N. H. 290; Robinson v. Green, 3 Met. (Mass.) 159.

5 Mayfield v. Wadsley, 3 B. & C. 361; infra, sec 338.

6 Supra, sec 66, 338; Best v. Jolly, 11 Sid. 38; Jones v. Waite, 1 Bing. N. C. 341; Parish v. Stone, 14 Pick. 198; Earle v. Reed, 10 Metc. 387; Hynds v. Hays, 25 Ind. 31; Treadwell v. Davis, 34 Cal. 601.

7 Lewis v. Davidson, 4 M. & W. 654; supra, sec 338.

8 Supra, sec 509; Hall v. Dyson, 17 Q. B. 785; Loomis v. Newhall, 15 Pick. 167; Mead v. Combs, 19 N. J. Eq. 112; Floyd v. Goodwin, 8 Yerg. 484; Hall v. Heydon, 41 Ala. 242; Burke v. Mur-phey, 27 Miss. 167.

Moral obligation will not support a promise.

1 Hawkes v. Saunders, Cowp. 290.

2 See Atkins v. Banwell, 2 East, 506; Dodge v. Adams, 19 Pick. 429; Updike v. Titus, 2 Beasley, 151; Lang. Cont. ii. 1025; 1 Smith's Lead. Cas. 7th Am. ed. 284, and see supra, sec 373.

3 Lee v. Muggeridge, 5 Taunt. 36. This case is overruled in Eastwood v. Kenyon, 11 A. &. E. 438.

4 See note to Wennall v. Adney, 3 B. & P. 249; Kaye v. Dutton, 7 M. & G. 807; Jennings v. Brown, 9 M. & W. 501; Smith v. Ware, 13 Johns. 259;.

Watkins v. Halstead, 2 Sandf. 311; Geer v. Archer, 2 Barb. 424.

5 1 Ch. Con. 11th Am. ed. 52; Beaumont v. Reeve, 8 Q. B. 483; Warren v. Whitney, 24 Me. 561; Mills v. Wyman, 3 Pick. 207; Loomis v. Newhall, 15 Pick. 159; Dearborn v. Bowman, 3 Met. 155; Andrews v. Ives, 3 Conn. 368; Cook v. Bradley, 7 Conn. 57; Stone v. Stone, 32 Conn. 142; Smith v. Ware, 13 Johns. 257; Ehle v. Judson, 2.") Wend. 97; Whitaker v. Whitaker, 52 N. Y. 368; Snevily v. Reed, 9 Watts, 390; Parker v. Carter, 4 Munf. 273.

[8 512.

1 Cook v. Bradley, 7 Conn. 57; Stone v. Stone, 32 Conn. 142; Parker v. Carter, 4 Munf. 473.

2 Mills v. Wyman, 3 Pick 207; El-licott v. Peterson, 4 Md. 476. That an undertaking for the payment of a son's debts is, by itself, without consideration, see Mortimore v. Wright, 6 M. & W. 482; Seaborne v. Maddy, 9 C. & P. 497; Raymond v. Loyl, 10 Barb. 483; 1 Smith's Lead. Cas. 7th Am. ed. 285.

3 Holliday v. Atkinson, 5 B. & C. 501.

4 See Eastwood v. Kenyon, 11 A. & E. 438; Chamberlin v. Whitford, 102 Mass. 448; Greeves v. McAllister, 2 Binn. 591; Kennedy v. Ware, 1 Barr, 445; Snevily v. Reed, 9 Watts, 396; Pennington v. Gittings, 2 Gill & J. 208; Parker v. Carter, 4 Munf. 273; Johnston v. Johnston, 31 Penn. St. 450; Shealey v. Toole, 56 Ga. 210; though see Hemphill v. McClimans, 24 Penn. St. 367. In Conmey v. Macfarlane, Sup. Ct. Penn. 1882, 12 Pitts. Leg. Jour. 411, we have the following: "If one person has been guilty of a wrongful act which would render him liable in damages to another, and he promise to pay the injured person a sum of money as a compensation, this is a mere gratuitous promise, unless made in consideration of the injured person releasing his right of action for such damages," citing Smart v. Chell, 7 Dowl. 781. See, however, Directors of House of Employment v. Murry, 32 Penn. St. 178, where it was held that payment for medical services rendered, in a case of necessity, to paupers could, on a quantum meruit, be exacted from directors of the poor, under the special legislation of the state imposing on them the duty of supplying medical aid to such paupers; and this though, in this particular case there was no prior request to the physician to attend the paupers.

5 Beaumont v. Reeve, 8 Q. B. 483; Hulse v. Hulse, 17 C. B. 711; and see Mills v. Wyman, 3 Pick. 207; Valentine v. Foster, 1 Metc. 521; Dearborn v. Bowman, 3 Metc. 155; Ehle v. Jud-son, 24 Wend. 97; Stafford v. Bacon, 25 Wend. 384; 1 Hill, 533; 2 Hill, 453; Van Derveer v. Wright, 6 Barb. 547; Snevily v. Reed, 9 Watts, 396; Kennedy v. Ware, 1 Barr, 445; Carwoman, after divorce or her husband's death, to pay a debt incurred by her during her marriage is also at common law invalid as without consideration.1 The same rule has been applied to a promise by a bankrupt, after filing his petition in bankruptcy, and before his discharge;2 though, as will be seen in the next section, the promise if made after discharge would be valid.3 - On the same reasoning there is no considerman v. Noble, 9 Barr, 367, and cases cited 1 Smith's Lead. Cas. 7th Am. ed. 284; though see Carson v. Ely, 23 Mo. 267. That the rule in Connecticut differs from the text, see supra, sec 373. That agreements for illicit cohabitation are invalid, see supra, sec 373. That agreements to support illegitimate children are invalid, see infra, sec 525.

1 Howe v. Wildes, 34 Me. 566; Hay-ward v. Barker, 52 Vt. 429; Watkins v. Halstead, 2 Sandf. 311; Felton v. Reid, 7 Jones N. C. 269; Waters v. Bean, 15 Ga. 358; see Meyer v. Ha-worth, 8 A. & E. 467.

2 Stebbins v. Sherman, 1 Sandf. 510; Groves v. McGuire, Ky. Ct. Ap. 1881; 1 Ky. L. J. 249; Nelson v. Stewart, 54 Ala. 115; though see, contra, Brix v. Braham, 1 Bing. 281; Otis v. Gazelin, 31 Me. 567.

3 In Groves v. McGuire, ut supra, it is said by the court: " It is nothing more than a promise to pay a debt already owing and collectible by law, and a renewed assurance to the creditor, without any additional consideration, that the debt will be paid. The original contract remained in full force, and had never been discharged, and as long as the creditors can maintain an action on the original promise, a new promise, without some additional consideration, will not affect an action. That is the rule laid down in Ogden v. Redd, 13 Bush, 581, as well as by all the elementary authorities. Suppose the appellees had sued the appellant on the original undertaking, and the latter, instead of relying on his discharge in bankruptcy, had pleaded, by way of accord and satisfaction, that he had, subsequently to the original promise, say on the------day of March,.

1878, made an additional promise to pay the debt, and it was accepted by the defendants, and therefore the last promise, and not the original undertaking, created the liability, can it be successfully maintained that such a plea would be good ? We think not. There must be some distinct agreement based upon a consideration in which the original contract is merged or discharged before such a promise can be made available, except for the purpose of defeating a plea of limitation. Where the debt is barred by time or by the bankrupt's discharge, and is no longer collectible by law, a new promise based on the moral obligation to pay, creates a liability; but so long as the original contract can be enforced, a mere promise or recognition of the liability will not support the action. It will not do to say that the mere forbearance to present the claim before the assignee in bankruptcy, gives vitality to the promise and creates an obligation upon which the action can be maintained. The mere conclusion in the mind of the creditor, that he will accept or forbear to act with reference to his claim, will not amount to a contract with his debtor. He must forbear to present his claim by reason of some contract, made by both parties, based upon a consideration, or have been so defraudation for a promise to pay a demand that the plaintiff has voluntarily released in order to make the defendant a witness.1.