(3) The third exception, or apparent exception, to the rule that a past consideration will not support a promise is a substantial and important one, and one about which there is no doubt. It is found in those cases in which a person has been held capable of reviving an agreement by which he has benefited, but which, by reason of some rule of law meant for his advantage, which he may waive, is not enforceable against him. The principle upon which these cases rest

79 Watson v. Turner, Bull. N. P. 147; Atkins v. Banwell, 2 East, 505; Wing v. Mill, 1 Barn. & Ald. 105. See "Contracts," Dec. Dig. (Key-No.) § 19; Cent. Dig. §§ 357-381; "Paupers," Dec. Dig. (Key-No.) § U; Cent. Dig. §§ 195-191.

80 Ante, p. 136; Mills v. Wyman, 3 Pick. (Mass.) 207. See "Contracts," Dec Dig. (Key-No.) § 76; Cent. Dig. §§ 851-381; "Paupers," Dec. Dig. (Key-A'o.) § 44; Cent. Dig. §§ 195-197.

81 Paynter v. Williams, 1 Cromp. & M. 810. See "Paupers," Dec. Dig. (Key-No.) § 44; Cent. Dig. §§ 195-191.

82 Anson, Cont. (8th Ed.) 100-102.

83Gleason v. Dyke, 22 Pick. (Mass.) 300. And see Doty v. Wilson, 14 Johns. (N. Y.) 382. See "Contracts," Dec. Dig. (Key-No.) § 79; Cent. Dig. §§ 851-881.

174 CONSIDERATION (Ch 5

is "that, 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."84 Thus a new promise made by a bankrupt or insolvent who has been discharged from debts by a certificate of bankruptcy, or by insolvency proceedings, to pay a debt, has been upheld without further consideration.85 So a promise by a person, after becoming of age, to pay debts contracted during infancy, and which could not be enforced, is binding on him.88 Some courts have held that a promise by a woman during widowhood or after divorce, to fulfill promises made during coverture, is binding;87 but most courts hold that as a married woman's contract, unlike an infant's, is void, and not merely voidable, her new promise after the death of her husband, or after a divorce has been obtained, is without consideration.88 So, also, a debt barred by the statute of limitations may be revived by a new promise to pay it, and the new promise may be implied from a mere acknowledgment of the debt.89 And an indorser on a note, who has been discharged from liability from want of notice of nonpayment, may waive his discharge.80 It has even been held, where bills, void for usury, were renewed after the usury laws had been repealed, the consideration for the renewal being the past loan, that the new bills were valid.91

84Parke, B., in Earle v. Oliver, 2 Exch. 71; Shepard v. Rhodes, 7 R. I. 470, 84 Am. Dee. 573; Turlington v. Slaughter, 54 Ala. 195; Lonsdale v. Brown, 4 Wash. C. C. 86, Fed. Cas. No. 8,493. Promise by the owner of a building to pay for materials furnished by a contractor who has failed to comply with the mechanic's lien law. Morse v. Crate, 43 I11. App. 513. See "Contracts," Dec. Dig. (Key-No.) § 79; Cent. Dig. §§ 357-381.

85Trueman v. Fenton, Cowp. 544; DUSENBURY v. HOYT, 53 N. Y. 521, 13 Am. Rep. 543, Throckmorton Cas. Contracts, 129; Way v. Sperry, 6 Cush. (Mass.) 238, 52 Am. Dec. 779; Shippey v. Henderson, 14 Johns. (X. Y.) 178, 7 Am. Dec. 458; Yates' Adm'rs v. Hollingsworth, 5 Har. & J. (Md.) 216; Katz v. Moessinger, 110 I11. 372; Shaw v. Burney, 86 N. C. 331, 41 Am. Rep. 461; Wislizenus v. O'Fallon, 91 Mo. 184, 3 S. W. 837; Wolffe v. Eberlein, 74 Ala. 99, 49 Am. Rep. 809; Carey v. Hess, 112 Ind. 398, 14 N. E. 235; Knapp v. Hoyt, 57 Iowa, 591, 10 N. W. 925, 42 Am. Rep. 59; Griel v. Solomon, 82 Ala. 85, 2 South. 322, 60 Am. Rep. 733; Hobough v. Murphy, 114 Pa. 358, 7 Atl. 139; Murphy v. Crawford, 114 Pa. 496, 7 Atl. 142; Craig v. Seitz, 63 Mich. 727, 30 N. W. 347; Succession of Audrieu, 44 La. Ann. 103, 10 South. 388; Christie v. Bridgman, 51 N. J. Eq. 331, 25 Atl. 939, 30 Atl. 429; Higgins v. Dale, 28 Minn. 126, 9 N. W. 583. But not if debt is voluntarily released. Stafford v. Bacon, 1 Hill (N. Y.) 532, 37 Am. Dec. 366. See ante, p. 163. Promise by third person to pay discharged debt. Webster v. Le Compte, 74 Md. 249, 22 Atl. 232. See "Bankruptcy," Dec. Dig. (Key-No.) § 434,; Cent. Dig. §§ 853-866; "Contracts," Cent. Dig. § 361.

86 Williams v. Moor, 11 Mees. & W. 263; Tibbetts v. Gerrish, 25 N. H. 41, 57 Am. Dec. 307; Bliss v. Perryman, 1 Scam. (I11.) 484; Reed v. Batchelder, 1 Mete. (Mass.) 559; Kendrick v. Neisz, 17 Colo. 506, 30 Pac. 245; Heady v. Boden, 4 Ind. App. 475, 30 N. E. 1119; Edmond's Case (1586) 3 Leon. 164. See "Infants," Dec. Dig. (Key-No.) § 57; Cent. Dig. §§ 136-148, 157; "Contracts," Cent. Dig. § 367.

87 Lee v. Muggeridge, 5 Taunt. 36 (this was on the ground of moral obligation); Brown v. Bennett, 75 Pa. 420; Sharpless' Appeal, 140 Pa. 63, 21 Atl. 239; Goulding v. Davidson, 26 N. Y. 604. See "Husband and Wife," Dec. Dig. (Key-No.) § 89; Cent. Dig. §§ 358-361; "Contracts," Cent. Dig. §§ 365, 366.

There is undoubtedly in all of these cases a moral obligation to fulfill the unenforceable promise, and many of the decisions, both old and modern, base the validity of the new promise on the ground of the moral obligation, thereby making this class of cases an exception to the rule that a moral obligation cannot support a promise.92 If the effect of these cases is to make such an exception, it is unfortunate, to say the least, for there is much dicta to the effect that a moral obligation can never support a promise.98 It would seem much better to base the validity of such promises, not on the moral obligation, but on the prior agreement, supported by a valuable consideration, and the right of the promisor to waive the technical rules of law, meant for his benefit, and which render it unenforceable.

88 Hayward v. Barker, 52 Vt 429, 36 Am. Rep. 762; Porterfield v. Butler, 47 Miss. 165, 12 Am. Rep. 329; Meyer v. Howarth, 8 Adol. & El. 467; Waters v. Bean, 15 Ga. 358; Putnam v. Tennyson, 50 Ind. 456; Musick v. Dodson, 76 Mo. 624, 43 Am. Rep. 780; Kent v. Rand, 64 N. H. 45, 5 Atl. 760; Valentine v. Bell, 66 Vt. 2S0, 29 Atl. 251; Wilcox v. Arnold, 116 N. C. 708, 21 S. E. 434; Thompson v. Hudgins, 116 Ala. 93, 22 South. 632; Holloway's Assignee v. Rudy (Ky.) 60 S. W. 650. A promise by a married woman, having a separate estate, to pay for necessaries furnished her on the credit of such estate, is a sufficient consideration for a new promise after the death of her husband. Sherwin v. Sanders, 59 Vt 499, 9 Atl. 239, 59 Am. Rep. 750. See "Husband and Wife," Dec. Dig. (Key-No.) § 89; Cent. Dig. §§ 358-361; "Contracts," Cent. Dig. §§ 365, 366.

89 Ilsley v. Jewett 3 Metc. (Mass.) 439; Keener v. Crull, 19 I11. 189; Walker v. Henry, 36 W. Va. 100, 14 S. E. 440; Little v. Blunt 9 Pick. (Mass.) 488; Pittman v. Elder, 76 Ga. 371; Pierce v. Wimberly, 78 Tex. 187, 14 S. W. 454; Hall v. Bryan, 50 Md. 194; Perkins v. Cheney, 114 Mich. 567, 72 N. W. 595, 68 Am. St Rep. 495. But a deceased person's debt which is barred will not support his widow's promise to pay it. Sullivan v. Sullivan, 99 Cal. 187, 33 Pac. 862. See "Limitation of Actions," Dec. Dig. (Key-No.) § 145; Cent. Dig. | 592.

90 Ross v. Hurd, 71 N. Y. 14, 27 Am. Rep. 1; Glidden v. Chamberlin, 167 Mass. 486, 46 N. E. 103, 57 Am. St Rep. 479. See "Bills and Notes," Dec. Dig. (Key-No.) §§ 422, 423; Cent. Dig. §§ 1196-1222.

91 Flight v. Reed, 1 Hurl. & C. 703; Hammond v. Hopping, 13 Wend. (N. Y.) 505. See Barnes v. Hedley, 2 Taunt 184. But see Ludlow v. Hardy, 38 Mich. 690; ante, p. 136; and dissenting opinion of Martin, B., in Flight v. Reed, supra. See "Bills and Notes," Dec. Dig. (Key-No.) § 139; Cent. Dig. § 854; "Usury," Dec. Dig. (Key-No.) § 67; Cent. Dig. §§ 140, 141; "Contracts," Cent. Dig. § 379.

92 Edmond's Case (1586) 3 Leon. 164; Wislizenus v. O'Fallon, 91 Mo. 184, 3 S. W. 837; Turlington v. Slaughter, 54 Ala. 195; Musick v. Dodson, 76 Mo. 624, 43 Am. Rep. 780; Carey v. Hess, 112 Ind. 398, 14 N. E. 235; Hobough v. Murphy, 114 Pa. 358, 7 Atl. 139; Murphy v. Crawford, 114 Pa. 496, 7 AM. 142; Craig v. Seitz, 63 Mich. 727, 30 N. W. 347; Succession of Audrieu, 44

La. Ann. 103, 10 South. 388. See post, p. 370. See "Contracts," Dec. Dig. (Key-No.) § 79; Cent. Dig. §§ 357-381.

93 Mills v. Wyman, 3 Pick. (Mass.) 207. And see ante, p. 130 et seq., and cases cited. See "Contracts," Dec. Dig. (Key-No,) § 79; Cent. Dig. §§ 857-881.