#### David M. Watkins *v.*Jane F. Halstead.

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 right of action, if the dbligation on which it is founded never could have been enforced at law, though not barred by any legal maxim or statute provision.

A promise made by a married woman to pay for goods purchased by her during coverture, is void ; and the law will not raise an implied promise by her from such consideration. Neither will such precedent consideration support an express promise by her to pay the debt, made after her divorce from her husband.

The doctrine that a moral obligation is a sufficient consideration for a subsequent promise, is one which should be received with some limitation.

January 20;

Feb. 10, 1849.

This was an appeal by the defendant from the marine court. The plaintiff’s complaint against the defendant was for $52 05 due him for goods, wares and merchandise, together with interest from May 27, 1846. The defendant answered, that at the time of the alleged sale and delivery of the goods, she was the wife of David P. Halstead, who was alone liable for the payment thereof. The plaintiff replied, that the defendant was not, at the time, living with David P. Halstead as his wife; and further, that she was divorced from her husband, by a decree of the court of chancery, on or about the 2d of November, 1846; that although the bill of goods mentioned in the complaint, was contracted for by the defendant on or about the 14th of May, 1846, and while the defendant was the wife of David P. Halstead, yet they were sold and delivered to her while she was living separate from her husband, and as a feme sole; and that after she was divorced from her husband, to wit: on the 2d of November, 1846, she repeatedly promised to pay for the goods, and did pay for a part of the goods originally sold her; and that she then promised to pay the balance of the bill to the plaintiff, to wit, the sum of $52 05. That the plaintiff, at the defendant’s request, brought a suit for the bill against David P. Halstead, in the marine court; and was nonsuited in that action, on the ground that the present defendant had deserted *312her husband, and was living separate from him when the bill of goods was sold and delivered to her, and that therefore, David P. Halstead was not liable therefor. That since that suit was decided, and subsequent to the divorce, the defendant had recognized the bill as her debt, and promised to pay the same. And that the defendant had a separate property of her own, and an income of $500 per annum, or more, and was abundantly able to pay the debt. On the trial, the plaintiff proved the sale and delivery of the goods to the defendant, in May, 1846, while she was living separate from her husband; though the plaintiff’s clerk, who delivered the goods, was not aware of that fact at the time. The bill amounted to $66 43. She promised in July, August, or September, 1846, to pay the bill. She afterwards came to the plaintiff’s store, and returned goods to the amount of $12 50, which were credited on the account, and she promised to pay the balance. She wanted her husband to pay it, but said if he did not, she would. That the plaintiff sued the defendant’s husband, at her request, and failed in the suit. Another witness testified, that he presented the bill to the defendant, in October, 1847. She promised to pay it as soon as she got the means to do it, and said, she did not intend that the plaintiff should lose the bill; that it had been out of her power to pay it before. She admitted the bill to be correct, and promised to pay it as soon as she got the means.

The defendant’s counsel admitted, that the defendant obtained a decree of divorce in the court of chancery, against her husband, for adultery, on the 2d of November, 1846. He also admitted that the defendant, through her trustee, owned a separate estate. The amount due, with interest computed to the timp- of the trial, was proved to be $60 24. The defendant thereupon moved for judgment, on the ground that the promise proved to have been made by her, after her divorce, was void for want of consideration ; and that no sufficient moral obligation existed previous to such promise to pay for the same, as the credit was not given upon the strength of the defendant’s liability, but upon that of her husband.

The court gave judgment for the plaintiff for $60 24, besides *313costs. The defendant appealed to this court, assigning the following grounds of appeal: 1. Because the summons was not in the form, nor subscribed in the manner, required by the code of procedure. 2. Because the promise proved to have been made by the defendant, was void for want of consideration; neither was it founded upon any sufficient moral or legal obligation to pay for the goods. 3. Because the promise was in fact a promise to pay the debt of another person, viz.: the defendant’s formér husband; and was therefore void upon two grounds, first, as being a debt already existing, and second, for not being in writing. 4. Because the judgment includes $8 10 interest, which the defendant never promised to pay, either before or after her divorce.

*David P.*Hall, for the plaintiff.

*T. W. Clerke,*for the defendant.

By the Court. Vanderpoel, J.

The question is, whether there is a sufficient consideration to support the promise upon which the suit is brought? Our first impressions were rather favorable to the action; but a reference to the authorities and principles upon which the notion of a moral consideration to support a promise rests, has satisfied us that the promise relied upon cannot be sustained.

It is not pretended that, independently of the express promise of the appellant after she obtained her decree of divorce, this action could be sustained. If, when the debt was contracted, when the goods were delivered, any person was liable, it was the husband. We see nothing in the case to exempt him from liability. The appellant was then a *feme*covert, and clearly not liable. Her promise to pay was made after she was divorced, and if that promise is not supported by an adequate consideration, the action must fail.

In a note to *Wennall*v. Adney, (2 Bos. & Pul. 252,) the rule as to what precedent consideration will support an express promise, is laid down with a precision and accuracy that have commended it to repeated judicial approbation. It is there said, *314that 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 right 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. This rule was approved by Justice Spencer, in *Smith*v. *Ward,*(13 John. 257;) by Bronson, J., in *Eyle*v. *Judson, (24*Wend. 97;) and by Lord Denman, in *Eastwood*v. *Kenyon,*(11 Adol. & Ellis, 438.) Tested by this rule, this promise must surely fail. The precedent consideration relied upon, never could have been enforced through the medium of an implied promise, because, 1st. The wife was incapable, at the origin of the consideration, of making a valid promise; and 2d. The goods, in contemplation of law, were sold on the credit of another, (the husband.) The original promise, whether express or implied, on the sale of the goods, when the defendant was under coverture, was altogether void. As Pattison, J., says in *Meyer*v. *Howorth,*(8 Adol. & Ellis, 467,) “ Such promise was not like that of an infant, *voidable;*but was *void.”*That case was somewhat similar to the present. It was an action for goods sold to the defendant, at her request, and delivered to another with whom, it turned out, that she lived in adultery, and for work and labor, money paid, and an account stated. The defendant pleaded coverture at the time of the promise. The plaintiff replied, that the defendant, at the time when the debt was contracted, was living separate from her husband, and in open adultery with another, to whom she ordered the goods delivered *;*that the plaintiff did not, when he dealt with defendant, know that she was a married woman, or that she lived in adultery, and dealt with her as a *feme sole ;*and that, after the death of the husband, in consideration of the premises, she promised to pay the demand. Although the case turned chiefly on the -pleadings, (the replication being held to be a departure from the declaration,) yet the language of the judges shows, they were of opinion that the action on the new promise, could not be sustained, for the reason, as they say, that the first promise was altogether *void,*not voidable. The idea cannot be *315tolerated, that a precedent consideration can support a subsequent express promise, when the law cannot only not raise any implied promise from such consideration, but where even an express promise, made when the consideration originated, would be void.

The counsel for the respondent depends upon the case of Lee v. Muggeridge, (5 Taunt. 36,) where a *feme covert,*having an estate settled to her separate use, gave a bond for repayment by her executors of money' advanced, at her request, to her son-in-law. After her husband’s decease, she wrote, promising that her executors should settle the bond. It was held, that assumpsit would lie against the executors on this promise of the testatrix. Though that case differs from the present, in the important particular, that the defendant there had an estate settled to her separate use, yet the case has not been regarded as very good authority, at least in respect to some expressions that dropped from the judges in delivering judgment.

In *Eastwood*v. Kenyon, (11 Adol. & Ellis, 438,) Lord Den-man, in an able opinion, in which he approves of the note to *Wennall*v. *Adney,*(3 Bos. & Pul. 294,) says, that the case of *Lee*v. Muggeridge, must be allowed to be decidedly at variance with the doctrine in this note, which, as before remarked, has been held to be law, in 13 John. 257, and 24 Wend. 97. Lord Denman also speaks of the case of *Littlefield*v. *Shee,*(2 Barn. & Adol. 811,) in which Lord Tenterden remarked, that the doctrine that a moral obligation is a sufficient consideration for a subsequent promise, is one which should be received with some limitation. Lord Denham regards this sentence as amounting to a dissent from the authority of *Lee*v. Muggeridge, where the doctrine is wholly unqualified. He seems to think it remarkable too, that neither in *Lee*v. Muggeridge, nor in *Cooper*v. *Martin,*(4 East, 76.) was there any allusion made to the learned note in 3d Bosanquet & Puller, above referred to. (See also, *Geer*v. *Archer, 2*Barb. Sup. C. R. 420; *Kennedy*v. *Male,*8 Missouri Rep. 698. 8 Alabama Rep. 399.)

On the whole, we are of opinion, that the precedent consideration in this case, cannot support the subsequent promise; and we hold with Lord Tenterden, in *Littlefield*v. *Shee,*that the *316doctrine that a moral obligation is a sufficient consideration for a subsequent promise, is one which should be received with some limitation.

The judgment below must be reversed.