paupers settled there, if residents, or if residing elsewhere under their charge.'

The case of lord Suffield v. Bruce,' seems to have been decided on the ground of mere moral obligation; but a careful examination of the facts will leave no doubt, it is believed, that the defendant would have been legally liable to the plaintiff, though he had made no express promise.

In conformity with the views above stated respecting the legal import of the maxim that a moral obligation is a sufficient consideration to support an express promise, it has been held that where one gave a deed of land, described as ninety-three acres, which upon admeasurement was found to be much less, a promise to pay back a proportional part of the price was nudum pactum. And so of a promise by a father to pay the expenses that had been incurred in relieving his adult son suddenly taken sick at a distance from his friends, and a promise by a son to pay for supplies furnished to his father." So also of a promise to pay for labor on land entered upon and claimed by the plaintiff as his own, but recovered from him by the defendant in a suit at law; and of a promise to pay damages for detaining money, beyond the amount of interest thereon." So of a promise to pay a witness, for loss of time, more than his legal fees for travel and attendance. Many express promises, called gratuitous, as will presently be seen, are held

1 Simmons v. Wilmott, 3 Esp. Rep. 91; Lamb v. Bunce, 4 M. & S. 275; Wing v. Mill, 1 Barn. & Ald. 104.

22 Stark. Rep. 153. (Amer. ed.)

43 Pick. 207.

3 13 Johns. 259.

54 Munf. 273; 7 Connect. 51. In Besfich v. Coggil, Palmer, 559, the court were equally divided on the question whether a father was liable on an express promise to pay the plaintiff for expenses, incurred in Spain, for the burial of

his son.

5 Johns. 272; recognised by Story, J. 2 Gallis. 143.

7 2 Johns. 442, Phetteplace v. Steere.

* Willis v. Peckham, 1 Brod. & Bing. 515; S. C. 4 Moore, 300.

to be void, merely for want of consideration, although the moral obligation of the promisor, in its ethical sense, is most clear.

But, on the other hand, it must be admitted that several recent decisions cannot easily be reconciled with the views above suggested. There are cases in which plaintiffs have been held entitled to recover, on the ground of " moral obligation," where we can discern no legal consideration antecedent to the defendant's express promise. Whether the doctrine of these cases is to be recognized and extended by the courts, or whether the cases are to be considered as decided upon a misapplication of the true principle, is a question of no trifling interest to those who watch the progress of modern jurisprudence.

In Greeves v. McAllister,' A and B were severally bail for C, in two different suits. C avoided, and A pursued him to a distant state, without any concert or communication with B, and brought him back and lodged him in jail, whereby B was enabled to surrender him without expense or trouble. B, having promised to pay half of the expense incurred by A in returning C to the custody of the officer, was held liable on that promise.

In Doty v. Wilson,', an express promise to a sheriff, by one whom he had voluntarily suffered to escape from his custody on final process, to repay the sheriff the amount he had been compelled to pay to the original creditor, was held valid, on the ground of moral obligation. The act of the sheriff, in permitting the escape, was unlawful, and a previous promise of indemnity would have been void for illegality; and no promise of indemnity would have been implied by law, after the sheriff had paid the creditor.❜

12 Binn. 591.

2 14 Johns. 381. See also Duhammel v. Pickering, 2 Stark. Rep. 81. (Amer. ed.)

3 Pitcher v. Bailey, 8 East, 171.

MUTUAL PROMISES.

One promise is a good and sufficient consideration for another. Even a voidable promise is sufficient, as has been seen in the case of a promise by an infant. Aliter of a void promise.

Thus reciprocal promises of marriage are valid.' So of wagers, where they are recognized as valid contracts.2 So of promises to sell and deliver goods, and to pay for them,' and of divers other mutual promises."

Mutual promises, as has been before noticed, must be made at the same time, or they are without consideration and void."

In some of the cases that have been cited, where the promise of one party was held to be the consideration of the other's promise, it would probably be held, at this day, that the performance of the promise was the true consideration; and therefore the form of declaring, there adopted, would not now be sanctioned by the courts. But this doctrine belongs to the title of pleading.

GRATUITOUS PROMISES, &C.

Merely gratuitous promises, as already mentioned, are void. Thus subscriptions to public works, institutions, charities, &c., if merely gratuitous, cannot be collected by

1 Holcroft v. Dickenson, Carter, 233; S. C. 1 Freem. 95. 347; Harrison v. Cage, 5 Mod. 412; S. C. 12 Mod. 214; Baker v. Smith, Style, 295. 304.

Martindale v. Fisher, 1 Wils. 88; 2 Chit. Pl. 76; Jackson v. Colegrave, Carth. 338.

3 Bettisworth v. Campion, Yelv. 134; Nichols v. Raynbred, Hob. 88.

♦ Comb. 256; 4 Leon. 3; Hardr. 102; Cro. Eliz. 543. 703. 888; Moore, 574; 8 Johns. 304.

Hob. 88; 12 Johns. 192. 400; 1 Caines, 583; 1 Chit. Pl. 297, (2d Amer. ed.) 2 Kent's Com. 365, (1st ed.)

6 See 1 Saund. 320, note (4.)

law.' So of similar promises to individuals. If, however, such promise induce others, who rely on its performance, to advance money, or part with their property, it will be held obligatory on the promisor, in order to avoid a fraud on third persons. So of other promises originally invalid for want of a consideration. In McAuley v. Billenger, which was a suit on a subscription for the repair of a church, the court said the repair was the consideration of the promise. If the subscriber were an owner, or if he were a member of a corporation which owned the church, this might be a sufficient consideration. As the case is stated in the report, a more satisfactory ground of decision is that of preventing a fraud on the other subscribers.

It is not to be understood that every gratuitous promise is binding, in consequence of its having induced others to advance their money, or part with their property, in furtherance of the same object. The subscription of one person for the relief of distress or poverty may operate, by way of example, on the generosity or sympathy of another to subscribe, and to pay his subscription. In such and similar cases, there could be no pretence for charging the first subscriber, on the ground above mentioned. The rule, it is supposed, holds only in cases in which the party, relying on the promise of another, has made advances or contracted engagements which will be less useful or more burdensome to himself, if the other fail to fulfil his promise."

19 Mass. 254; 11 Mass. 113; 2 Pick. 579.

2 Cro. Eliz. 42; Godb. 32.

3 12 Mass. R. 190; 14 Mass. R. 172; 3 Pick. 322; 6 Pick. 427; 7 N. Hamp. 435.

420 Johns. 89.

• The strong inclination of the New England courts to find a consideration, in cases of voluntary subscriptions for public and benevolent objects, is very manifest in the cases that have been decided during the last twenty-five years. The promise of each, in such cases, is sometimes said to be a sufficient consideration for the promises of the others. 6 N. Hamp. R. 164; 4 ib. 533. This, however, is an unsatisfactory view of the matter.

Merely gratuitous services are no consideration for an implied promise to reward them. As voluntary assistance in saving property from fire' or securing property found afloat in a river or beasts found astray.' So of other services rendered without a precedent request. The law is the same, when one pays another's debts, without request.* "A mere voluntary courtesy will not have a consideration to uphold an assumpsit." "It is better for the public, that these voluntary acts of benevolence from one man to another, which are charities and moral duties, but not legal duties, should depend altogether for their reward, upon the moral duty of gratitude.""

An exception to this rule is found in the marine law of all civilized nations, in the recompense which is awarded, under the name of salvage, for the rescue of goods, &c. from the perils of the sea. Salvors have a lien upon the property saved, and the amount of compensation is determined by a court of admiralty, according to the circum

stances.

Natural affection and love, are not sufficient considerations to support a promise. A promissory note given by a father to his son, on such considerations only is void." So of a note given to a sister, in consideration that her father had bequeathed to her a smaller portion of his estate than to the promisor."

1 20 Johns. 28.

2 2 H. B. 254.

3 2 Bl. Rep. 1117.

♦ 5 Johns. 272; 2 Gallis. 143; 1 McCord, 22.

5 8 D. & E. 613; 3 Johns. 434; 8 Johns. 436; 10 Johns. 361.

Hob. 106; See also Cluffe v. Moor, 1 Sid. 413.

7 By Eyre, C. J. 2 H. B. 259.

• Abbott on Shipping, Part iii. ch. 10; 2 Sumner, 400.

* Plowd. 302; 2 Leon. 30; Cro. Eliz. 756.

10 18 Johns. 145; 5 B. & C. 501; S. C. 8 D. & R. 163. 115 Pick. 391.