ficial to the one party, or onerous to the other." A subsisting legal obligation to do a thing, is a sufficient consideration for a promise to do it; but it has been an unsettled point, whether a mere moral obligation be, of itself, a sufficient consideration for a promise, except in those cases in which a prior legal obligation or consideration had once existed. The weight of authority is that it is not sufficient. Though the consideration of natural love

⚫ Jenkins v. Tucker, 1 H. Blacks. Rep. 90. Livingston v. Rogers, 1 Caines' Rep. 584. Comstock v. Smith, 7 Johns. Rep. 87. Hicks v. Burhans, 10 Johns. Rep. 243. Garrett v. Stewart, 1 M'Cord's S. C. Rep. 514. Wing v. Mill, 1 Barnw. & Ald. 104.

b Smith v. Ware, 13 Johnson, 257. Edwards v. Davis, 16 Ib. 281. Mills v. Wyman, 3 Pick. Rep. 207. Cook v. Bradley, 7 Conn. Rep. 57. Dodge v. Adams, 19 Pick. 429. Eastwood v. Kenyon, 3 Perry & Davison, 276. S. C. 11 Adolph. & Ellis, 348. Beaumont v. Reeve, K. B. Hil. 1846, N. Y. Legal Observer, June 1846. Ehle v. Judson, 24 Wendell, 97. The question, how far a mere moral obligation was sufficient to raise and support an assumpsit, is learnedly and clearly stated and discussed, in the note to 3 Bos. & Pull. 249, and the note to 16 Johns. Rep. 233; and the conclusion to which the learned editors arrived, seems to have been adopted in the cases referred to. And yet, in one of the cases, (Lee v. Muggeridge, 5 Taunt. Rep. 36,) Gibbs, J., observed, that it could not now be disputed, that wherever there is a moral obligation to pay a debt, or perform a duty, a promise to pay that debt, or perform that duty, would be supported by the previous moral obligation. There is a strong instance in Fairchild v. Bell, Brevard's M. S. Rep. cited in 1 Rice's S. C. Dig. p. 60, in support of the implied contract to pay for a meritorious service, founded on a moral obligation. The same doctrine is laid down by Baillies, J., in Barlow v. Smith, 4 Vermont Rep. 144, and in Glass v. Beach, 5 Ibid. 193; but the promise must be express and not implied. Lord Tenterden, in Littlefield v. Shee, 2 Barn. & Ad. 811, admitted the doctrine, that a moral obligation was a sufficient consideration for an express promise, though he said that it must be received with some limitation. It is difficult to surmount the case stated by Lord Holt, in 1 Lord Raym. 389, that a promise to pay a debt contracted in infancy is valid. In the case of Eastwood v. Kenyon, Lord Denman observed, that the case of Lee v. Muggeridge, was decidedly at variance with the doctrine in the note to 3 B. & Puller, 249, and so was the decision in Littlefield v. Shee, and Lord Denman concluded that a past benefit, not conferred at the request of the defendant, would not support a subsequent promise to pay, and that this conclusion was justified by the old common law, and that the principle of moral obligation

and affection be sufficient in a deed, yet such a considera

tion is not sufficient to support an executory con*466 tract, and give it validity, either at law or *in equity. A promise to do a thing may be merely gratuitous, and not binding; yet, if the person promising

did not make its appearance till the days of Lord Mansfield. The decision in Lee v. Muggeridge, was laid down in too unqualified terms, and the doctrine in the note to B. & P. may now be considered as the better doctrine in England and America. But there is a distinction between promises which are void or only voidable, and the former are held, not a sufficient consideration to support a subsequent promise. Cockshot v. Bennett, 2 Term. 763. In Hatchell v. Odom, 2 Dev. & Battle, 302, it was observed, that it was not every moral obligation that was sufficient in law to raise an implied promise or to support an express one; and that such only were available considerations, which would originally have been good, but for the intervention of some rule of policy. A promise to pay after the interdict is removed, will be valid and may be enforced. The case of a promise to pay a debt barred by the statute of limitations, or a promise by a widow or an adult, to refund a loan of money made during coverture or infancy, are given as instances by Judge Gaston, in his clear and able opinion in the case last cited. So, a promise by an insolvent debtor to pay a debt existing before his discharge, creates a valid contract, the previous indebtedness being a sufficient consideration, and the promise is a revival of the old debt. Earnest v. Parke, 4 Rawle, 452. Parke, B., in Smith v. Winter, 1 Horne & Hurlstone, 389. Rogers v. Stephens, 2 Term, 713. Gibbon v. Coggen, 2 Campb. 168. Hawkes v. Saunders, Cowp. 290. Cook v. Bradley, 7 Conn. Rep. 57. The plaintiff may declare on the original promise, and insist on the new promise, by way of replication. Fitzgerald v. Alexander, 19 Wheaton, 402. If a debtor compromises a debt by paying part, and afterwards promises to pay the balance when able, the promise is binding without any new consideration. Stafford v. Bacon, 25 Wendell, 364.

a Tate v. Hilbert, 2 Vesey, jun., 111. Pennington v. Gittings, 2 Gill & Johns. 208. A court of equity will not specifically enforce or execute a voluntary contract nor lend its assistance to a mere volunteer, who is not within the influence of the consideration of an executory agreement. Jeffreys v. Jeffreys, Cr. & Ph. 141. Holloway v. Headington, 8 Sim. 325. Colyear v. Countess of M., 2 Keen, 81. 1 Maddock's Ch. Rep. 564. Mathews v. L-e Nevers, Scott, U. S. C. C. for Georgia, Law Reporter Boston, June 1846. But if it be an executed trust, though without consid. eration, the court will give it effect. Collingson v. Pattrick, 2 Keen, 123. Ellison v. Ellison, 6 Vesey, 662. Bunn v. Winthrop, 1 Johnson's Ch. Rep. 337. Minturn v. Seymour, 4 Id. 500. Acker v. Phenix, 4 Paige Rep. 305. Hayes v. Kershow, 1 Sandford, Ch. Rep. 261.

enters upon the execution of the business, and does it negligently, or amiss, so as to produce injury to the other party, an action will lie for this misfeasance. The consideration must not only be valuable, but it must be a lawful consideration, and not repugnant to law or sound policy or good morals. Ex turpi contractu actio non oritur; and no person even so far back as the feudal ages, was permitted by law to stipulate for iniquity. The reports, in every period of the English jurisprudence, and our American Reports, equally abound with cases of contracts held illegal on account of the illegality of the consideration; and they contain striking illustrations of the general rule, that contracts are illegal when founded on a consideration, contra bonos mores, or, against the principles of sound policy, or founded in fraud, or in contravention of the positive provisions of some statute law. If the contract grows immediately out of, or is connected with an illegal or immoral act, a court of justice will not enforce it. But if it be unconnected with the illegal act, and founded on a new consideration, it may be enforced, although the illegal act was known to the party to whom the promise was made, and he was the contriver of the illegal act.d The

a

Boggs v. Bernard, 2 Lord Raym. 909.

Fitz. Abr. tit. Obligation, pl. 13. See also the same language in the civil law. Dig. 2. 14. 27. 4. Code, 6. 3. 6.

• In the American Jurist for January, 1840, the law concerning unlawful contracts, which violate either the common or statute law, is discussed with much learning, order and perspicuity, and the numerous adjudged cases bearing on the subject referred to, and the leading ones sufficiently examined.

d Hodgson v. Temple, 5 Taunt. Rep. 181. Wash. Cir. Rep. 297. 11 Wheaton, 258, S. C.

Toler v. Armstrong, 4
Story's Comm. on the

Conflict of Laws, p. 205–209. That a contract of sale, not prohibited by any positive law, nor against good morals, may still be void as being against principles of sound policy, see Jones v. Randall, Cowp. 39. Bryan v. Lewis, Ry. & Moo. 386. In Richardson v. Mellish, 2 Bing. Rep. 229, Ch. J. Best thought that the courts had gone too far in setting aside contracts, on the ground that they were in contravention of public policy, and

*courts of justice will allow the objection, that the consideration of the contract was immoral or ille

that the objection in such cases ought to be founded on some clear and unquestionable principle, and never applied to doubtful questions of policy. These should be left to be settled by legislative discretion. In the Scots law contracts are deemed inconsistent with public policy and void: When made against the policy of the domestic relations. 2. In restraint of personal liberty. 3. Tending to impede the course of justice. 4. Defeating the revenue laws. 5. Inconsistent with national war policy. Bell's Principles of the Law of Scotland, p. 16-18. Mr. Justice Story, in his Commentaries on Equity Jurisprudence, vol. i. p. 262-304, has clearly and fully stated the cases in which contracts have been set aside, as against public policy. Such, for instance, are, (1.) Marriage brokerage contracts, by which a party engages to give another a compensation, if he will negotiate an advantageous match for him. (2.) A reward promised for using influence and power over another person, to induce him to make a will in his favour. (3.) Secret conveyances and settlements in contemplation of marriage. (4.) Contracts in general restraint of marriage. (5.) Contracts in general restraint of trade. (6.) Agreements founded upon violation of public trust or confidence, or duty, or for the violation of public law. These and other less striking cases, are all enforced and illustrated by numerous authorities, in the masterly treatise to which I have referred. The cases are uniform in declaring the principle, that if a note or other contract be made in consideration of an act forbidden by law, it is absolutely void. 14 Mass. Rep. 322. 5 Johns. Rep. 327. 3 Wheaton, 204. 4 Peters' U. S. Rep. 410. 11 East's Rep. 502. 1 Binney's Rep. 110. 2 Gallison's Rep. 560. Vide, also, ante, vol. i. p. 468. If the consideration of a bond or covenant be illegal, that illegality will constitute a good defence at law, as well as in equity. 566. Collins v. Blantern, 2 Wilson, 347. 408. Greville v. Atkins, 9 B. & Cress. 462. Fytche v. Bishop of London, 1 East, 487. Vauxhall Bridge Company v. Spencer, 1 Jacob, 64. Westmeath v. Westmeath, 1 Dow's N. S. 519. First Cong. Church v. Henderson, 4 Rob. Louis. Rep. 209. Overman v. Clemmons, 2 Dev. & Battle, 185. In this last case all the authorities are reviewed and the doctrine clearly established. Though the result of many of the decisions is, that the mere knowledge of the illegal purpose for which goods are purchased, will not affect the validity of the contract, if there be no participation or interest in the act itself, as selling goods by a foreign merchant, he knowing that they were intended to be smuggled into England. Holman v. Johnson, Cowper, 341. Maxwell v. Reid, 5 Term, 599. Hodgson v. Temple, 5 Taunton, 181. Bell on the Contract of Sale, Edin. 1844, p. 22. Cheney v. Duke, 10 Gill & Johns. Rep. 11. Lord Abinger, in Pellecat v. Angell, 2 Cr. M. & Rep. 311; yet Ch. J. Eyre, in Lightfoot v.

Smith v. Aykewall, 3 Atk. Paxton v. Popham, 9 East,

gal, to be made even by the guilty party to the contract; for the allowance is not for the sake of the party who raises the objection, but is grounded on general principles of policy. A particeps criminis has been held to be entitled, in equity, on his own application to relief against his own contract, when the contract was illegal, or against the policy of the law, and relief became necessary to prevent injury to others. It was no objection, that the plaintiff himself was a party to the illegal transaction.b But if a party, who may be entitled to resist a claim on account of its illegality, waives that privilege, and fulfils

Tenant, 1 Bos. & Pull. 351. 356, held otherwise, and that the consideration must be meritorious. A sale of arsenic, knowing it to be intended to commit murder, would not support an action. And Mr. Justice Story, (Conflict of Laws, p. 209, 210,) considers that this doctrine contains such wholesome morality and enlarged policy, as to be almost irresistible to the judgment. This has now become the prevailing law in the English courts. Langton v. Hughes, 1 Maule & Selw. 593. Cannan v. Bryce, 3 Barnw. Ald. 179. In Steele v. Curle, 4 Dana's K. Rep. 385, Ch. J. Robertson, after an examination of the authorities on this vexed question, and without giving any definite opinion thereon, suggested that the validity of the contract in the given case might depend upon the degree of turpitude evinced by the contemplated transgression of the law.

With respect to contracts in restraint of trade, if they totally prohibit the carrying on of a particular business at any place within the state they are void, for such a general restraint is injurious to the public. But contracts for a limited restraint, as that a man will not exercise his trade, or carry on his business in a particular place, or within certain limits, are valid, provided they were entered into for some good reason, independent of the pecuniary consideration. Mitchel v. Reynolds, 1 P. Wms. 181. Horner v. Graves, 7 Bing. 735. Proctor v. Sargent, 2 Manning & Granger, 20. Mallan v. May, 11 Meeson & Welsby, 653. Chappell v. Brockway, 21 Wendell, 157. Ross v. Sadgbeer, Ib. 166. The opinion of Ch. J. Parker, in the case of Mitchel v. Reynolds is very elaborate, and contains the principles of law on the subject with just discrimination, and great precision and accuracy. The opinion of Mr. Justice Bronson, in the New York cases, contains also well reasoned conclusions of law.

a Holman v. Johnson, Serg & Rawle, 241, 242.

Cowp. Rep. 343. Mackey v. Brownfield, 13 Griswold v. Waddington, 16 Johns. Rep. 486. Langton v. Hughes, 1 Maule & Selw. 593. Josephs v. Pebrer, 3 Barnw. Cress. 639. See Infra, p. 487, n. d.

Eastabrook v. Scott, 3 Vesey, 456. St. John v. St. John, 11 Ibid. 526. 535. Jackman v. Mitchell, 13 Ibid. 581.