"Without doubt there are great interests of society which justify wilh-holding the coercive arm of the law from these duties of imperfect obligation, as they are called; imperfect, not because they are less binding upon the conscience than those which are called perfect, but because the wisdom of the social law does not impose sanctions upon them.
"A deliberate promise, in writing, made freely and without any mistake, -one which may lead the party to whom it is made into contracts and expenses, -cannot be broken without a violation of moral duty. But if there was nothing paid or promised for it, the law, perhaps wisely, leaves the execution of it to the conscience of him who makes it. It is only when the party making the promise gains something, or he to whom it is made loses something, that the law gives the promise validity. And in the case of the promise of the adult to pay the debt of the infant, of the debtor discharged by the statute of limitations or bankruptcy, the principle is preserved by looking back to the origin of the transaction, where an equivalent is to be found. An exact equivalent is not required by the law; for there being a consideration, the parties are left to estimate its value; though here the courts of equity will step in to relieve from gross inadequacy between the consideration and the promise.
"These principles are deduced from the general current of decided cases upon the subject, as well as from the known maxims of the common law.
1 Cook v. Bradley, 7 Conn. 57. See also Frear v. Hardenbergh, 5 Johns. 272. See ante, § 134, 135, and 159, 160. vol. I. 35 the amount of a loss to the copartner by reason of an honest mistake as to the state of the partnership accounts, is also a mere moral consideration, and will not support an action.1
§ 591. A qualification to this rule, however, obtains in cases where there was originally a sufficient valuable consideration upon which an action could have been sustained, but where, in consequence of some statute or positive rule growing out of general principles of public policy, the right of action is suspended, and the party is exempted from legal liability. In such cases the moral obligation is sufficient to support an express promise, though it will not raise an implied promise.2
The general position, that moral obligation is a sufficient consideration for an express promise, is to be limited in its application to cases where, at some time or other, a good or valuable consideration has existed." Cook v. Bradley, 7 Conn. 57; Littlefield v. Shee, 2 B. &• Ad. 811; Yelv. (Met-calf's ed.) 4 a, note 1; Parker v. Carter, 4 Munf. 273; MTherson v. Rees, 2 Penn. 521; Pennington v. Gittings, 2 Gill & Johns. 208; Smith v. Ware, 13 Johns. 259; Edwards v. Davis, 16 Johns. 281, 283, note; Greeves v. M'Allister, 2 Binn. 591; Chandler v. Neale, 2 Hen. & Munf. 124; Fonbl. on Eq. by Laussatt, 273, note; 2 Kent, Comm. (2d ed.) 465. Contra, Glass v. Beach, 5 Vt. 172; Barlow v. Smith, 4 Vt. 144; Commissioners of the Canal Fund v. Perry, 5 Ohio, 58. See also Seago v. Deane, 4 Bing. 459; Wells v. Horton, 2 C. & P. 383; Davis v. Morgan, 6 Dowl. & Ryl. 42. '* A legal obligation is always a sufficient consideration to support either an express or an implied promise; such as an infant's debt for necessaries, or a father's promise to pay for the support and education of his minor children. But when the child shall have attained to manhood, and shall have become his own agent in the world's business, the debts he incurs, whatever may be their nature, create no obligation [upon the father]; and it seems to follow, that a promise founded upon such a debt has no legally binding force."
1 Eakin v. Fenton, 15 Ind. 59 (1860); Abey v. Bennett, 10 Ind. 478 (1858); Spahr v. Hollingshead, 8 Blackf. 415.
2 In Geer v. Archer, 2 Barb. 424, the doctrine on this point is thus stated: "There is a class of cases where it has been said that a moral obligation is sufficient to support an express promise; such, for instance, as the obligation to pay a debt barred by the statute of limitations, or an insolvent's discharge, or to'pay a debt contracted during infancy, or coverture, and the like. But a mere moral or conscientious obligation, unconnected with a prior legal or equitable claim, is not enough. The result of all the cases on this head is summed up in a note to 3 Bos. & Pul. 249, in these words: 'An express promise, therefore, as it should seem, can only revive a precedent good consideration, which might have been enforced at law, through the medium of an implied promise, had it not been suspended by liable thereupon;1 and it is said, subsequent promises to pay for goods sold and delivered on Sunday.2
This exception includes all promises barred by the statute of limitations, or discharged by the bankrupt or insolvent law; 2 and promises by an adult to pay debts contracted during his infancy;2 and promises by a drawer of a bill of exchange, or by an indorser of a bill or note, to pay it, although he may not have received such notice as would render him legally some positive rule of law; but can give no original right of acton, if the obligation on which it is founded never could have been enforced at law, though not barred by any legal maxim or statute provision.1 The rule as thus stated received the emphatic approbation of Justice Spencer in the case of Smith v. Ware, 13 Johns. 257. The same doctrine is substantially asserted by Bronson, J., in Ehle v. Judson, 24 Wend. 97; and such I believe to be the settled rule. It forms a criterion at once safe, certain, and easy to be understood and applied. Testing the present case by that rule, it is apparent that the promise cannot be upheld. The supposed obligation which is invoked for its support most 'clearly never could have been enforced in any tribunal known to our law. The case of Bentley v. Morse, 14 Johns. 468, cited by the plaintiff's counsel, was a case of moral obligation sufficient to support an express promise within the rule above referred to. There money had been paid and a receipt taken, and afterwards the party to whom it was paid brought an action for the same money, and recovered, through the omission of the defendant to produce the receipt in evidence in his defence. A subsequent promise by the plaintiff in that action, that if the defendant had the receipt he would refund the money, was held to be valid, and supported by the moral obligation to pay the money. The court-likened it to a case of a promise by an infant, to pay a debt contracted during his nonage, or of an insolvent or bankrupt to pay a debt from which he is discharged by his certificate. We hold that it is not in all cases necessary that the moral obligation, in order to be a good foundation for an express assumpsit, should be such as that, without the express promise, an action could once have been sustained upon it; but that if it could have been made available in a defence, it is equally within the rule. The test is, could it have been enforced before it was barred by the legal maxim or statute provision ? Upon this ground the case of Bentley v. Morse is within the rule stated." See Nash v. Russell, 5 Barb. 556; Mardis v. Tyler, 10 B. Monr. 382; Watkins v. Halstead, 2 Sandf. 311; Way v. Sperry, 6 Cush. 238; Turner v. Chrisman, 20 Ohio, 332; Warren v. Whitney, 24 Me. 561.