Sec 513

An apparent exception to the rule that a moral obligation is not a sufficient consideration to support a promise is to be found in the rule still recognized that the fact that a debt once binding has been discharged by law without satisfaction to the debtor is a sufficient consideration to pay such debt. This has been held where a bankrupt promises to pay a debt discharged in bankruptcy;2 and a fortiori of promises barred by insolvent discharges, such discharges being only locally effective.3 The same view has been taken in regard to promises ed by the debtor as to estop the latter from relying on his defence in bankruptcy. A mere promise to pay is not sufficient. A mere promise to pay a debt already existing cannot be made the foundation of an action. Gilmore v. Green, 14 Bush, 772."

Party, however, may waive benefit of statute relieving him from paying debt.

1 Valentine v. Foster, 1 Met. 520, and cases cited at close of sec 513.

2 See Stebbins v. Sherman, 1 Sandf. 510; Scouten v. Eislord, 7 Johns. 36; Stafford v. Bacon, 25 Wend. 384; 2 Hill, 353; Willing v. Peters, 12 S. & R. 177; Johns v. Lantz, 63 Penn. St. 324; Chambers v. Rubey, 47 Mo. 99. It would be otherwise if the promise was made before discharge; supra, sec 512. "The very decided weight of authority holds that a promise made after the debtor has been adjudicated a bankrupt, but before he has obtained his certificate of discharge, is binding. This doctrine is sustained by the following authorities: Brix v. Bra-ham, 1 Bing. 281; Stilwell v. Coope, 4 Den. 225; Corliss v. Shepherd, 28 Me. 550; Otis v. Gazelin, 31 Me. 567; Donnell v. Swaim, 2 Penn. L. J. 393; Fraley v. Kelly, 67 N. C. 78. The contrary doctrine is held by the following authorities, so far as we have been able to discover: Ingersoll v. Rhoades,.

Hill & Den. Sup. 371; Ogden v. Redd, 13 Bush. 581." Day, J., Knapp v. Hoyt, S. Ct. Iowa, 1881, 13 Rep. 497. In Shaw v. Burney, Sup. Ct. N. C. 1882 (14 Law Rep. 182), Smith, C. J., said: "The authorities are clear that to remove the bar of a discharge in bankruptcy and revive the debt, the proof should show a distinct and unequivocal promise to pay, notwithstanding the discharge, and this is the rule announced by this court in Fraley v. Kelly, 67 N. C. 78, and approved in Riggs v. Roberts, 85 ib. 151. In Stewart v. Reckless, 4 Zabr. (N. J.) 427, the words relied on were, that he (the defendant) had always told Stewart (the plaintiff) he intended to pay him, and the court say 'the expression of an intention to do a thing is not a promise to do it. An intention is but the purpose a man forms in his own mind; a promise is an express undertaking or agreement to carry the purpose into effect.' But a case in its essential features the same as that now before the court was decided in 1851 by the supreme court of Massachusetts. Pratt v. Russell, 7 Cush. 462."

3 Badger v. Gilmore, 33 N. H. 361; Maxim v. Morse, 8 Mass. 127; Way v. Sperry, 6 Cush. 238; Erwin v. Saunto pay a debt barred by the statute of limitations. But the validity of promises of this class is no longer placed on the consideration of moral obligation. The liability is now based exclusively on the right of a party to waive the protection of a statute relieving him from indebtedness. "Where 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 meant for his advantage, he may renounce the benefit of that law; and if he promises to pay the debt, which is only what an honest man ought to do, he is then bound by the law to perform it."1 And it has been held in this country that a promise to pay a debt which has been voluntarily released is void as without consideration.2 ders, 1 Cow. 249; Earnest v. Parke, 4 Rawle, 452; Thomas v. Hodgson, 4 Whart. 492; Turner v. Crisman, 20 Ohio, 332; McWillie v. Kirkpatrick, 28 Miss. 802.

1 Per cur. Earle v. Oliver, 2 Ex. 90; adopted in Leake, 2d ed. 617. To the same effect see Eastwood v. Kenyon, 11.

A. & E. 447; Beaumont v. Reeve, 8 Q.

B. 487; Flight v. Reed, 1 H. & C. 766; and see Walbridge v. Harroon, 18 Vt. 448; Way v. Sperry, 6 Cush. 338; Shepard v. Rhodes, 7 R. I. 470; Scou-ton v. Eislord, 7 Johns. 36; Shippey v. Henderson, 14 Johns. 178; Geer v. Archer, 2 Barb. 424; Ehle v. Judson, 24 Wend. 97; Harper v. Fairley, 53 N. Y. 442; Turner v. Crisman, 20 Ohio, 332; Runnamaker v. Cordray, 54 111. 303; Simonton v. Clark, 65 N. C. 525. In Geer v. Archer, 2 Barb. 424, it was rightly said: "The test is, could it have been enforced before it was barred by the legal maxim or statute provision." In Lee v. Muggeridge, 5 Taunt. 36, however, it was held, as we have seen, that the fact that a woman gave a bond during coverture for money then loaned her will not sustain a promise after her husband's death to pay the money. This case, however, is virtually overruled in Eastwood v. Kenyon, 11 Ad. & El. 438. In England promises to pay debts discharged in bankruptcy are now by statute void. That such is also the case with promises to pay debts which were incurred in in-facy, see supra, sec 43. See discussion in Lang. Cont., ii. 1028; Leake, 2d ed. 668; supra, sec 43.

2 Warren v. Whitney, 24 Me. 561; Valentine v. Foster, 1 Met. (Mass.) 520; Hale v. Rice, 124 Mass. 292; Shepard v. Rhodes, 7 R. I. 470; Snevily v. Reed, 9 Watts, 396; though see, contra, Hemphill v. McClimans, 24 Penn. St. 367'; Willing v. Peters, 12 S. & R. 177. In Ingersoll v. Martin, Ct. of Ap. Md. 1882, 13 Rep. 782, it is held that a promise to pay a released debt is void for want of consideration, following Warren v. Whitney, 24 Me. 561; Shepard v. Rhodes, 7 R. I. 470; Montgomery v. Lampton, 3 Met. Ky. 519; and dissenting from Willing v. Peters, 12 S. & R. 177. In Metc, on Cont. 179, after citing Valentine v. Foster, 1 Met. (Mass.) 520, it is said: "The distinction taken in this case between the validity of a promise to pay a claim that is discharged by operation of positive law, and a claim that.

- In connection with the position before us may be cited the rulings of the courts that parties to negotiable paper, discharged for want of notice of dishonor, become liable, if, after notice of such discharge, they promise payment.1 Whether the party promising had notice is to be inferred from all the facts in the case.2 - Under the same head are sometimes classed promises by infants, which, it is alleged, are subject to ratification when they reach majority, and promises of married women renewed after divorce or their husband's death. But the analogy with the case of an infant fails from the fact that the promise on his part, according to the better view, always bound, though not capable of enforcement during his minority, and was subject to repudiation upon his majority.3 A married woman's promise, on the other hand, is at common law a nullity, which no subsequent promise can resuscitate.4