There is a fourth class of cases, in which the consideration relied on has been that one man has done for
Smith v. Weed, 20 Wend. 184; Weld v. Nichols, 17 Pick. 588; Taylor v. Meek, 4 Blackf. 388.
The sound reasons for what would at first appear to be a pertinacious adherence to a narrow rule, are thus expressed by Mr. Hare, after a review of the authorities, in the note to Vadakin v. Soper, 2 Am L. C. "The general principle," said he, " which requires that every express contract shall be sustained by a cotemporaneous consideration, is, in effect, a rule of evidence of great importance, to the exclusion of fraud and misrepresentation from the tribunals of justice. If a mere verbal promise, without consideration, were sufficient to create a legal liability and sustain an action, no safety could be found against the misrepresentation of the most ordinary conversation, unless in the sagacity of the jury called to determine (perchance on a prejudice or false relation), whether it was meant or understood as a positive obligation for the payment of money, or the fulfilment of an engagement of any other description. And if a past consideration were sufficient to give such an engagement validity, the danger would be as great; for men, though but little disposed to promise further compensation for past services in their own case, are sufficiently ready to believe such an allegation in that of another, especially if supported by any plausible pretence, that the amount originally bargained for was insufficient. The chance of an erroneous verdict would be still greater in those instances, in which a bargain has resulted disadvantageously for one of the parties, and where he has induced the other to hold any language which can be construed or perverted into a promise of indemnification. The necessity for proving the existence of a cotemporaneous consideration, obviates this danger, by bringing the evidence back from words to things, which are not so easily susceptible of mistake or falsification. The uncertainty which results from looking to the subsequent language of a party, as the test of his liability, has been found so great in the cases arising under the Statute of Limitations, as to lead to the introduction, in England, and some parts of this country, of legislative enactments, making it necessary that the acknowledgment of the debt shall be in writing, and not be proved by mere verbal testimony. Yet in that case, the only effect of the evidence is to revive an anterior liability, of which the original existence is proved aliunde, and it is therefore easy to imagine what would be the result if every transaction of human life were open to the interpretation which a witness or jury might choose to give to any subsequent conversation of which it is made the subject. It would, therefore, appear that the rules of the common law with respect to consideration, so far from deserving the reproach of narrowness and illiberal-ity which has been sometimes cast upon them, are really founded upon a just appreciation of the uncertainty of testimony, and the exigencies of life, and should be sedulously upheld and applied, and not explained away or disregarded. It may safely be asserted that they do more to prevent fraud and perjury than any legislative enactment which has been, or can be devised for that purpose, and that if they had not been laid down and defined by judicial 6agacity, it would be necessary to introduce them by legislative authority." another something which that other, though not legally, is morally bound to do. In such cases it is clear, that, if there be no express promise to remunerate him, remuneration cannot be enforced. But it has been a great question, and has been frequently discussed, whether, even if there be an express promise, any request can be implied in order to support the consideration. On this question, which is but a branch of one which has been often the subject of anxious consideration, namely, in what cases a moral obligation is a sufficient consideration to support a promise, it is worth while to read the cases cited in the *note (/).
But it may be considered as now settled, that a merely moral consideration will not support a prom(l) Lee v. Muggeridge, 5 Taunt. (1 E. C. L. R.) 36; Atkins v. Banwell, 2 East, 505; and the note to "Wennall v. Adney, 3 B. & P. 247.
It is necessary to distinguish the class of cases referred to, from those which decide that a promise to pay a debt barred by the Statutes of Bankruptcy or Limitation is based upon sufficient consideration. Some expressions in the cases would seem to conflict with the general principle just referred to, but in reality the grounds of the decision are in harmony. The promise of a debtor to pay a debt so barred, although it is often called a new promise, is in reality rather a waiver of the bar which the statute has interposed. In pleading, it is sufficient to count on the original debt, and when the statute is pleaded, the evidence offered under the replication of a new promise or acknowledgment within six years, forms no variance between the declaration and the proof, for whether the defendant is liable by reason of the original consideration for the debt, or by reason of his subsequent acknowledgment, is immaterial, provided the plaintiff prove the original consideration, and the liability at the time of. suit brought, and if that liability arises from the new promise, it is just such a liability as the law implies from the old consideration, and hence the new promise accords with the old one, and there is no variance. This will be found fully explained in the note to Whitcomb v. Whiting, 1 Smith's L. C. 621, 8th Am. ed. But in the ordinary case of a precedent debt, a declaration setting forth that the plaintiff had contracted to build a wagon for $100, and that having done so, the defendant, in consideration thereof, promised to pay him $200, would be clearly bad, for such a promise would not be implied by law from the old consideration, which was the only one. So, in the case of an indebtedness to two persons jointly, a promise by the debtor, in consideration of the promise, to pay one-half of the debt to one of them, could not be enforced, for it is not such a promise as the law implies from the old consideration, and this was the case of Vadakin v. Soper, supra.-R. 218 ise (m). A mere moral consideration has been said by high authority to be nothing in law (n). "A subsequent express promise," said Tindal, C. J., "will not convert into a debt that which of itself was not a legal debt" (o). And the Court of Queen's Bench, in the case of Eastwood v. Kenyon (p), quotes with approval the conclusion arrived at in the note to Wennall v. Adney just cited, "that an express promise 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 some positive rule of law; but can give no original cause of action, 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 " (q)} This principle may be illus(m) Monknian v Shepherdson, 11 A. & E. (39 E. C. L. R) 415; Beaumont v. Reeve, 8 Q. B. (55 E. C. L. E.) 483. See Hicks v. Gregory, 8 C. B. (65 E, C. L. E.) 378.