So in Frear v. Hardenbergh, 5 Johns. 272, a promise to pay for labor of the plaintiff on land recovered from him by the defendant in a suit at law was held void for want of consideration. This case was cited with approval in Society v. Wheeler, 2 Gallis. 143. And in Smith v. Ware, 13 Johns. 257, it was held that where a lot of land was sold and described in the deed as supposed to contain ninety-three acres but was found to lack five or six acres of that area, a promise by the grantor to make up the deficiency was without consideration. A somewhat similar decision is Hawley v. Farrar, 1 Vt. 420. And see West v. Cavins, 74 Ind. 265; Allen v. Bryson, 67 Ia. 591; Freeman v. Robinson, 38 N. J. L. 383; Smith v. Tripp, 14 R. I 112.

Nevertheless though the doctrine of moral consideration is generally discredited, it has received occasional judicial recognition, especially in Pennsylvania, in a few cases, - some of which might well have been rested on other grounds. McElven v Sloan, 56 Ga. 208; Edwards v Nelson, 51 Mich. 121; Hemphill v. McClimans, 24 Pa. 367; Landis v. Royer, 59 Pa. 95; Stebbins v. Crawford, 92 Pa. 289; Holden v. Banes, 140 Pa. 63.

1 Likewise, it is almost universally held that a promise by the drawer or indorser of a bill or note to pay the holder, although the latter has not used due diligence, and

It must, however, be distinct and specific; (uu) and it has been held that the payment of interest, or even payment of part of the principal and its indorsement on the note by the debtor himself, is not sufficient to warrant a jury in finding a new promise to pay the whole debt. (uv) Where such promise is made, it does not seem to be necessary to declare upon it as the foundation of a suit, but an action may be brought upon the old promise, and the new promise will have the effect of doing away the obstruction otherwise interposed by the bankruptcy and discharge. (uw) But if the promise is conditional, then the party seeking to enforce it must show that the condition has been satisfied; as if the debtor promised to pay when he was able, then the creditor must prove his ability. (ux) In such case, and perhaps in all, it would be safer to rely upon the new promise as the ground of the action, and upon the old promise only as the consideration for the new one, (uy) as in many cases it has been held that the new promise does not revive the negotiability of a bill or note, but binds the insolvent only to the person to whom the contract was made. (uz) The contrary has however been held. (ua)

163; Franklin v. Beatty, 27 Miss. 347; Otis v. Gazlin, 31 Me. 567; Scouton v. Eislord, 7 Johns. 36; Fleming v. Hayne, 1 Stark. 370; Freeman v. Fenton, 1 Cowp. 544; Twiss v. Masse] , 1 Atk. 67; Ex parte Burton, id. 255; Birch v. Sharland, 1 T. R. 715; Besford v. Saunders, 2 H. Bl. 116; Brix v. Braham, 8 J. B. Moore, 261, 1 Bing. 281; Erwin v. Saunders, 1 Cowen, 249; Shipper v. Henderson, 14 Johns. 178; Maxim v. Morse, 8 Mass. 127; Way v. Sperry, 6 Cush. 238; Best v. Barber, 3 Dougl. 188; Trumbull v. Tilton, 1 Foster (N. H.), 128; Edwards v. Nelson, 51 Mich. 121; Stebbins v. Crawford, 92 Pa. 289. The promise should be made after the decree in bankruptcy discharging the debt - a promise made after the petition in bankruptcy was tiled merely, but before the decree, is not sufficient. Stebbins v. Sherman, 1 Samdf. 510. In England, however, by statute 6 Geo. IV. c. 16, a promise by a bankrupt must be in writing, and signed by the bankrupt, or by some person thereto by him lawfully authorized. - A promise by a debtor to pay a debt which has been voluntarily released by the creditor is not binding, for want of consideration. Warren v. Whitney, 24 Me. 561; Snevily v. Bead, 9 Watts, 396; Montgomery v. Lampton, 3 Met. (Ky.) 519, where the distinction is broadly taken between a discharge by force of positive law and a voluntary discharge. And this although the release was given without consideration, and merely to enable the debtor to testify in a suit against the creditor, in which he could not nave otherwise testified because of a Legal interest. To the same effect are Hockett v. Jones, 70 Ind. 227; Ingersoll v. Martin, 58 Md.67; Valentine v. Foster, 1 Met. 520; Hale v. Rice, 124 Mass. 292. The case of Willing v Peters, 12 S & R. 177, contra, [may be considered overruled.] has thereby discharged the drawer and indorsers, is binding. Rabey v. Gilbert, 6 H. & N. 536 , Cordery v. Colvin, 14 C. B. n. s. 374; Woods v. Dean, 3 B. & S. 101; Yeager v. Farwell, 13 Wall. 6; Hazard v. White, 26 Ark. 155; Haves v. Werner, 45 Conn. 246; Smith v. Curlee, 59 Ill. 221; Wing v. Beach, 31 Ill. App. 78, 85; Higgins v. Robbins, 4 Dana, 100; Hart v. Long, 1 Rob. (La.) 83; Thomas v. Mayo, 56 Me. 40; Turnbull v. Maddux, 68 Md. 579; Hobbs v. Strain, 149 Mass. 212; Parsons v. Dickinson, 23 Mich. 56; Robbins v. Pinckard, 13 Miss. 275; Salisbury v. Renick, 44 Mo. 554; Rogers v. Hacket, 21 N. H. 100; Leary v. Miller, 61 N. Y. 488; Shaw v. McNeill, 95 N. C. 535; Smith v. Lownsdale, 6 Oreg. 78; Oxnard v. Varnum, 111 Pa. L93; Stone v. Smith, 30 Tex. 138; Bundy v. Bizzell, 51 Vt. 128; Knapp v. Runals, 37 Wis. 135.

(mm) It must be an absolute and unconditional promise to pay the debt. Brown v. Collier, 8 Humph. 510. The words, " I have always said, and still say, that she shall have her pay," spoken to an agent of the creditor, may be construed by the jury as an express promise to pay. Pratt v. Russell, 7 Cush. 462. - Mere statements to third persons that he had promised to pay' the debt are not in themselves sufficient. They afford some ground to raise the presumption of a promise, but are not such in themselves. Prewitt v Caruthers, 12 S. & M. 491; Yoxtheimer v. Keyser, 11 Penn. St. 365.

(uv) Merriam v. Bayley, 1 Cush. 77; Cambridge Institution for Savings v. Lit-tlefield, 6 Cush. 210.

The law in Ireland seems to be otherwise, Donnelly v. Howie, Hayes & Jones, 436; s. c. 2 Ames Cas. B. & N. 501.

But a promise made in ignorance of the fact that the holder has been guilt] of laches, is not binding. Borradaile v. Lowe, 4 Taunt. 93; Thornton v. Wynn, 12 Wheat. 183 , Walker v, Rogers, 40 Ill. 279; Freeman v. O'Brien, 38 Iowa, 406; Bank of Tennessee v. Smith, 9 B. Mon. 609; James v. Wade, 21 La. An. 548; Byram v. Hunter, 36 Me. 217; Lewis v. Brehme, 33 Md. 412; Kelley v. Brown, 5 Gray, 108; Lake v."Artisans' Bank, 3 Keyes, 278; Lilly v, Petteway, 73 N.C. 358

Ignorance of the legal effect of laches, however, will not prevent a drawer or indorser from being bound by his promise. Bilbie v. Lumley, 2 East, 469; Givens v. Merchants' Nat. Bank, 85 Ill. 442; Davis v. Gowen, 17 Me. 387; Matthews v. Allen, 16 Gray, 594; Third Nat. Bank v. Ainsworth, 105 Mass. 503; Edwards V. Tandy, 36 N. H. 540. See, however, contra, Williams v. Union Bank, 9 Heisk. 441.

The morality of the promise, however certain, or however urgent the duty, does not of itself suffice for a consideration. In fact, the rule amounts at present to little more than permission to a party to waive certain positive rules of law which would protect him from a plaintiff claiming a just and legal debt (v)

Perhaps an illustration of the rule, that a moral obligation does not form a valid consideration for a promise, unless the moral duty were once a legal one, may be found in the case of a widow, who promises to pay for money expended at her request or lent to her during her marriage. It has been held in England, in a case examined in a former note, (w) that this promise was bind-' ing, and there are many dicta to that effect in this country; (x)

(uw) Williams v. Dyde, Peake, Cas. 68; Maxim v. Morse, 8 Mass. 127; Ship-pey v. Henderson, 14 Johns. 178; Dupuy v, Swart, 3 Wend. 135.- If the old debt was due by note or specialty, a parol promise merely will not sustain an action on the note or specialty itself. Graham v. Hunt, 8 B. Mon. 7.

(ux) Besford v. Saunders, 2 H.B1.116; Fleming v. Hayne, 1 Stark. 370; Branch Bank v. Boykin, 9 Ala. 320; Scouton v, Eislord, 7 Johns. 36, Bush v. Barnard, 8 id. 407. - So in promises by an adult to pay " when he is able " a debt contracted during infancy, the defendant's ability to pay must be shown. Penn v. Bennett, 4 Camp. 205; Cole v. Saxby, 3 Esp. 160; Davies v. Smith, 4 id. 36; Thompson v. Lay, 4 Pick. 48," Everson v. Carpenter, 17 Wend. 419, So of a promise to pay a debt barred by the Statute of Limitations. Tanner v. Smart, 6 B. & C. 603; Haydon v. Williams, 7 Bing, 163 , Gould v. Shirley,

2 Mo. & P. 581; Tompkins v. Brown, 1 Denio, 247; Laforge v. Jayne, 9 Penu. St. 410.

(uy) Penn v. Bennett, 4 Camp. 205; Fleming v. Hayne, 1 Stark. 371; Wait v. Morris, 6 Wend. 394,

(uz) Dupuy v. Swart, 3 Wend. 135; Moore v. Viele, 4 id. 420; Walbridge v. Harroon, 18 Vt. 448; White v. Cushing, 30 Me. 267; Graham v. Hunt, 8 B. Mon. 7.

(ua) Way v. Sperry, 6 Cush. 238.

(v) Way v. Sperry, 6 Cush. 238; Tur ner v. Chrisman, 20 Ohio, 332; Dodge v. Adams, 19 Pick. 429; Eble v. Judson, 24 Wend. 97; Warren v. Whitney, 24 Me. 561; Geer v. Archer, 2 Barb. 420; Nash v. Russell, 5 Barb. 556; Mardis v. Tyler, 10 B. Mon. 382; Watkins v. Halstead, 2 Sandf. 311, and page *381, ante.

(w) See note ante.

(x) Cook v. Bradley, 7 Conn. 57; Hatchell v. Odom, 2 Dev. & B. 302; but the current of recent decision in England is in favor of the view, that the promise of a married woman has not, when given, any legal force, and therefore is not voidable, but void; and cannot be ratified by a subsequent promise after the coverture' has ceased, nor be regarded as a sufficient consideration for a new promise; and we have therefore expressed our belief, in that note, that the case of Lee v. Muggeridge is not law. (y) It has, however, been held that the promise of a widow to pay for goods furnished during her coverture, on the faith of her separate estate, was binding. (a)

It seems to have been held in England, formerly, that while a promise in consideration of future illicit cohabitation was certainly void, a promise in consideration of past cohabitation, especially if grounded upon seduction by the promisor, was * sufficient. It appears to be now held, that the considera- tion is equally insufficient in either case. (b)