power had been a partner; and after this offer, the plaintiffs received a dividend, and engaged to tender a proof of their demand under the commission; it was held that they could not sue the Bank in respect of the stock, until they had fulfilled their engagement to tender the proof under the commission (ƒ). And the Chief Justice, in delivering the judgment of the Court, said, “It was, at the time of the offer, a question of great nicety and difficulty, whether the Bank was by law liable to make good the loss; so that the engagement of the Bank to replace this stock without any litigation on their part, was of itself a very valuable and important concession, and a sufficient consideration to support a promise by the plaintiffs that they would tender, and endeavour to enforce, their proof against the bankrupt's estate."

"If A. lease land to B. at will (g), and A. assume to B. that in consideration that he will surrender the said estate at will to him, that he will provide a parsonage for J. S., this is not a good consideration for an action, because A. may determine the estate at will, at his pleasure. But if it be alleged in such case that there was a controversy between A. and B., whether it was a letting at will, or for years, and upon that the promise was made, there is a good consideration. If A., in consideration that B. will make such an estate at will as his counsel shall devise, promise, &c., this is not a good consideration, because, immediately after the estate is created, he may determine it (h)." This doctrine was recognised and confirmed in a modern case (i), in which the Chief Justice said, "It is not necessary that the party should have a right to hold if it be doubtful whether he has a right to hold, that is a good consideration." And there can be no doubt that the resignation of a colourable claim, conflicting with that of another person, and the settlement of the dispute between the parties without suit, constitute a good consideration (k). And we have already remarked, that, in these cases, inequality of consideration does not of itself form any objection (7).

PROMISE FOR A PROMISE.-We have before mentioned some decisions that a mere promise to do an act at a future period, is

(f) Stracy v. The Bank of England, 6 Bing. 754.

(g) That is, strictly at will; not from year to year.

(h) 1 Rol.Abr., Action sur Case, (V), page 23, pl. 27, 8, 9; 1 Vin. Abr. 309.

(i) Richardson v. Mellish, 2 Bing. 229; 9 Moor, 435, S. C.

(k) Thornton v. Fairley, 2 Moor, 397, 408, 9; see Cann v. Cann, cited 1 Atk. 10; 1 Vern. 4; 2 Ventr. 353. (1) Ante, 26, 27.

a sufficient consideration for an engagement to the party making such promise (m). And there are other authorities that the mere promise, (without performance,) is, in such case, a sufficient consideration, as it subjects the party to a charge and obligation he would not otherwise have incurred (n). Thus the mere promise of a party to become a partner in a firm, is a sufficient consideration for a promise to receive him as a partner (o). 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 (p). 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 (q). 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 (r); 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 (s). 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 (t), 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 (u).

It appears also to be now settled, that a mere moral obligation will sometimes be a sufficient consideration to support an express

(m) See ante, 28.

(n) See Nichols v. Rugubred, Hob. 88; Hebden v. Rutter, 1 Sid. 180; Stangborow v. Warner, 4 Leon. 3; Gower v. Capper, Cro. El. 543; Wichals v. Johns, id. 703; per Parke, J., in Wentworth v. Bullen, 9 B. & C. 840, 849, 850 ; per Cur. Cartwright v. Cooke, 3 B. & Ád. 703.

(0) M'Neill v. Reid, 2 Moor & S. 89; 9 Bing. 68, S. C. (p) Ante, 13.

(g) 2 Bla. Com. 445; 3 Chit. Com. L. 72; per Lord Mansfield, C. J., and Buller, J., in Hawkes v. Saunders, Cowp. 290, 294; per Lord Ellenborough Atkins v. Banwell, 2

East, 506; per Mansfield, C. J., in Gibbs v. Merrill, 3 Taunt. 311; Lee v. Muggeridge, 5 id. 36; see a learned note to Wennall v. Abney, 3 B. & P. 149; 2 Saund. 137 d, n. (b); per Best, C. J., Seaman v. Price, 2 Bing. 438, 439, cited, ante, 36, note (a).

(r) See post, as to this promise, Index, tit. Limitations. It must be in writing; 9 Geo. 4, c. 14, s. 1.

(3) Post, Index, Bankrupt, and Insolvent.

(1) Bonner v. Wilkinson, 5 B. & Ald. 606.

(u) Lundie v. Robertson, 7 East, 231; Gibbon v. Coggon, 2 Camp. 168; Taylor v. Jones. id. 105.

promise, although no legal responsibility ever existed. This may be illustrated by the instance of a promise by a man after he has attained twenty-one years of age, to pay a debt contracted by him during his infancy, and which by law he was not, in consequence of his infancy, liable to discharge (x). And if, on a usurious agreement for a loan, money be advanced, and usurious securities be taken, which the parties mutually agree to destroy; a promise by the borrower to repay the principal and legal interest is founded on a sufficient consideration, and is binding (y). 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 (≈). In Littlefield v. Shee (a) 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 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 (b)."

(x) Post, Index, tit. Infants.

(y) Barnes v. Hedley, 2 Taunt. 184; per Gibbs, J., Lee v. Muggeridge, 5 id. 47; Harrison v. Hannel, id. 780; see 2 Stark. R. 237; 1 R. & M. 123; post, Index, Usury.

(2) Lee v. Muggeridge, 5 Taunt. 36. (a) 2 B. & Ad. 811.

(b) And see post, 43. In Lee v. Muggeridge, the declaration shewed that the wife alone caused the creation of the debt, and induced the plaintiff to give credit. In that case the husband was not liable for the money lent. There was, therefore, a strong and peculiar claim in justice against the

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 (c).

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 (d).

The case of Cooper v. Martin (e) also supports this principle. 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 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(ƒ).

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

widow. In Littlefield v. Shee, the declaration did not shew any such moral obligation on her part. Perhaps the plaintiff would have been entitled to recover, had the declaration shewn that the husband was abroad; that the plaintiff would not, or did not, trust him, and supplied the goods for her use, solely on her credit.

(c) Lord Suffield v. Bruce, 2 Stark.

R. 175.

(d) Gibson v. Dickie, 3 M. & Sel. 463; Binnington v. Wallis, 4 B. & A. 650; post, Index, Immoral Contracts; see another instance, Duhammel v. Pickering, 2 Stark. R. 94.

(e) 4 East, 76; see Peak Add. C. 79, 226; and post, 44.

(f) Pelley v. Rawlins, Peak Add. C. 226; cor. Lawrence, J.

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 (g).

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 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 money to Richard which had been attended with very beneficial consequences, and that John being now in indigent circumstances, Richard promised to pay him 100%. 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 (h).

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 (i); but it seems to be clear law at the

(g) See Wennall v. Abney, 3 B. & P. 251, 2, note (a); and see ante, 41, note (b).

(h) See Appendix to Pothier on Obligations, by Evans, vol. 2, 406; and see ante, 41, and note (b). In the instance put by Mr. Evans, it is of course

to be understood, that the money lent by John had been repaid; leaving no other consideration than the obligation arising from the former act of kindness, and its consequent advantage to the borrower.

(i) Ante, 5, note (s).