
    S. J. McMorris v. John N. Herndon.
    Deriving a benefit from goods sold to a third person is a sufficient consideration to sustain an express subsequent promise to pay for them.
    A moral obligation is a sufficient consideration to support an express assumpsit made after the obligation incurred: It is equivalent to a previous request — But it must be such an obligation as is denominated by moralists perfect; an obligation of justice, and not of benevolence orpiety merely.
    The words “ value received” are a sufficient expression of the consideration for an undertaking to pay the debt of another, if indeed it be at all necessary that the consideration should be expressed in writing, vide Lecat ®. Tavel. 3 BTC. 158.
    j? C' °
    Tried before Mr. Justice Evans, at Newberry, Fall Term, 1830.
    This was a suit by sum. pro. on a promissory note, in these words, “ One day after date I promise to pay S. J. McMorris, or bearer, sixty dollars, for value received, in payment of my part of Patience T. Herndon’s estate, which estate is indebted to S. J. McMorris, administrator” — signed, John N. Herndon. Defence — 1. St. frauds — 2. Want of consideration. On the first ground it was contended, that this was an undertaking to pay the debt of another, and no consideration being expressed in writing, was void under the 4 sec. of the st. frauds. The presiding Judge held the consideration sufficiently expressed by the words “ value received,” and that the subsequent words did not invalidate the force of those which preceded, meaning, if they meant any thing, that the estate of Mrs. Herndon was indebted to the plaintiff, and that defendant was liable for part of the debt. And that this was a sufficient answer to the defence, without contradicting the authority of Wain v. Waiters. 5 Ea. 10. or Stevens & Ramsay®. Winn, reported in a note, 2. N. &, M. 372. although it may well be doubted since the case of Lecat v. Tavel* 3 M’C. 158. whether the doctrine of those cases can be regarded as law in this State.
    On the second ground of defence, the evidence was obtained from the plaintiff in answer to interrogatories filed by defendants and was in substance, that plaintiff as administrator of Mrs. Herndon, had' paid her debts to an amount exceeding her assets by the sum of $180; that the debts were mostly contracted for the benefit of the children of whom the defendant was one; and that some of them were contracted expressly for the defendant, were charged to him, and admitted by him to be just; in consideration of which, and in order that the debts of their mother might not remain unpaid, besides a doubt whether an estate derived from their father, might not in another tribunal be made liable for these debts, the defendant gave the note now in suit for his proportion of them. His Honor held the consideration sufficient. Decree for the plaintiff.
    This was a motion to reverse the decree, on the grounds taken in the Circuit Court.
    Herndon, for motion.
    Johnston &. Dunlop, contra.
    
   Harper J.

delivered the opinion of the Court.

The Court concurs with the presiding Judge in this case. The note or writing .sufficiently purports a consideration. The defendant, however, relies on the plaintiff’s answers to interrogatories, to shew that it was without consideration.

It is said, that “if a person pay money which another was under a legal or moral obligation to pay, though without his knowledge or request, the law raises an assumpsit; as in the case of goods distrained by the commissioners of the land tax, if a neighbour should redeem the goods and pay the tax he may maintain an action against the owner for the money so paid ; so if a person bury the wife or child of another, he may recover back the expenses incurred by it from the father or husband.” Bac. Abr. Assumpsit, D. referring to Jenkins v. Tucker 1 H. Bl. 90. In Hawkes v. Saunders, Lord Mansfield said, “ Where a man is under a moral obligation, which no Court of law or equity can enforce, and promises, the honesty and rectitude of the thing is a consideration.” Cowp. 290.

I suppose the moral obligation spoken of must be what moralists call a perfect obligation — an obligation of justice, and not of benevolence or piety. Therefore, if a man should pay money to relieve the distresses of my father or mother, this perhaps would be no consideration for my promise to reimburse him : Otherwise it seems in the case of a wife, or son, for whom I am bound to provide. See cases referred to by Wilmot X 9 Suit. 7 672. Serjeant Williams in his note (l) to Saunders 1 vol. 2'64, says, “ But where a party derives benefit from the consideration, it is sufficient, because equivalent to a previous request; as where a man pays a sum of money, or buys goods for me without my knowledge or request, and afterwards I agree to the payment, or receive the goods, this is equivalent to a previous request to do so.” I think the cases point to a distinction of this sort, which is probably the correct one — Where a person is under a legal obligation to pay money, and another pays it for him without request, the law raises an implied assumpsit, to refund without any express promise on his part: But where he was not under any legal obligation, but receives the benefit of a payment made, or labour done by another ; as if a person see the fence of my field decayed, and out of kindness pay another to repair it, and I promise to reimburse him ; or if he repair it himself, and I promise to pay him for his trouble, here the express promise is good. See Watson v. Turner, Bull. N. P. 129. Atkins v. Banwell, 2 East 505. Wennall v. Adney, 3 Bos. & Pull. 247. Here the evidence is, that the defendant did receive the benefit of the debts, contracted by Mrs. Herndon, and paid by the plaintiff.- They were contracted for the benefit of the children of whom he was one. The motion is therefore refused.  