
    
      R. G. Ferrell vs. Rebecca S. Scott.
    
    1. Where the surviving widow of a pauper gave a promissory note, shortly after her husband’s death, to one of his creditors, for a demand which had been contracted in his life time, in consideration that such demand should be discharged against the estate of the husband, by virtue of her undertaking to pay it, it was held not to he such an obligation as she could be compelled to pay.
    2. An undertaking to pay the debt of another, on condition that that other shall be entirely discharged from liability, is founded on a sufficient consideration, upon the ground that the promissor in such case has become an original debtor, on the discharge of the former debt, which is supposed to deprive the promissee of some previous advantage, or to subject him to some prejudice and delay in realizing it.
    3. But the defendant’s undertaking being voluntary, and without benefit, so far as she was concerned, and one which subjected the plaintiff to no possible loss or detriment, and being thus without consideration, was nudum pactum and void.
    4. The abstract position, that a moral obligation is a sufficient consideration to support an express promise to pay money, has been, in general, controlled by a state of facts that would resolve it into a question more resembling one of legal justice, than moral obligation, founded in conscience and piety. Vide McMorris vs. Herndon. ()
    5. Corbet vs. Cochrane, Riley’s Law Cases, 44, distinguished from this case.
    
      Before Evans, J. Charleston, Spring Term, 1843.
    The plaintiff was a shop-keeper at Kingstree, and the defendant was the widow of a poor, drunken pauper mechanic, residing in the same village. In the life time of the husband, the plaintiff had trusted him for a considerable amount. A portion of the account was for spirituous liquors, and the residue for provisions and clothing, such as was necessary for a family. It was proved the defendant expressed her gratitude to the plaintiff, and said she had some expectation of means from her relations, and if she ever was able she would pay the plaintiff. It was also proved, that in some instances articles were refused to the husband, and afterwards delivered to the wife. It was also proved, that after the death of the husband the plaintiff supplied her with some things, but to what amount there was no evidence. About four weeks after the death of the husband, the defendant gave the plaintiff a note for about $300. It was very clear that all of this note was for the store account of the husband, except about twenty dollars.
    His Honor was of- opinion, and so charged the jury, that the defendant’s promise to pay the debt of her husband was nudum pactum.
    
    2. That although she had had the benefit and enjoyment of some of the goods furnished, and they may have been sold to her, and on her promise to pay, yet as she was a feme covert, incapable of making a binding promise, there was no moral consideration to sustain her subsequent promise to pay her husband’s debt.
    3. That as it regarded the sum included in the note, over and above the husband’s debts, the jury ought to give a verdict for that, unless they believed, from the evidence, that that was also for the husband’s debt. They found for the defendant.
    The plaintiff appealed from the verdict, and moved for a new trial, on the grounds following, to wit:
    1. Because the note of the defendant was founded upon a sufficient consideration to support the promise, and entitle the plaintiff to recover.
    2. Because the jury should have found for the plaintiff, at least, the difference between the account produced in evidence, (as the consideration of the note,) and the amount specified in the note.
    3. Because there was evidence of consideration, subsequent to' the death of defendant’s husband, which was sufficient to support the promise, in whole or in part.
    4. Because the verdict is contrary to law and evidence.
    
      F. D. Richardson, for the motion.
    As to the moral obligation which may constitute a consideration for the support of a contract, cited 5 Taunton, 36; 2 Caine’s Cases, 150. But he contended there was in this case a legal and substantial consideration. The account was against the husband; it was presented to the wife after his death, and she gave her note, the account against the husband being receipted.
    The original debt here was extinguished, as in Corbet vs. Cochran, cited from Riley’s Law Cases, 44. The consideration need not necessarily be a pecuniary one. It matters not that the husband was poor, and had no assets. In consideration of a complete discharge of the husband, she promised to pay. The note was founded on the account. Here was a loss of remedy against the husband. His discharge, it was contended, was a good consideration to support the wife’s promise.
    Hunt, contra. The consideration of the note given by the defendant was nudum factum, and not recoverable at law. .A moral obligation is not enough to sustain a promise. Cited 1 Selwyn’s N. P. 53. The plaintiff, to make out his case, must have parted with something valuable. What has he parted with? Ferrell had nothing to lose. Ex nihil nihil fit. He looked to the future. Mrs. Scott had nothing to gain, and there was no administration. If one party has nothing to lose, and the other nothing to gain, it is nudum factum. Cited 3 Bos. and Pul. 249, (note;) 3 Maulé and Sel. 595. Buller’s N. P. 147, is supposed to support the doctrine of moral obligation; but in 1 Selwyn, 67, (note 11,) this case is criticised.
    In 1 Strange, 94, the wife’s promise was during the coverture, and yet she was not liable ; a fortiori here..
    In 2 Saund. 136, the heir at law was sued on the bond of his ancestor, having given his note on a promise of forbearance; but the heir not being originally liable, the action was not sustained. Apply the principle of this case to tiie present.
    In 1 Shower Rep. 183, a promise by the husband to pay the debt of the wife, after her decease, and contracted while a feme sole, held not good.
    Defendant’s right to administer was no consideration, for plaintiff might have done so. Cited, further, 1 Leigh N. P. 27; 2Brev. 126, 361; Harp. Rep. 201 ; 1 M’Cord, 449. As to the receipt of a note in payment, cited Slcirving ads. the Sheriff (MSS. 1827, Charleston,) 2 Rice Dig. 155. The due bill was suppletory. He has not released the estate, nor is it a release to an executor or administrator, or any one who represented it. Ferrell could now sue Scott’s estate, if worth any thing; and had Mrs. Scott paid the note, she would be subrogated to his rights.
    
      JRichardson, in reply.
    The note of a third person, accepted as payment, is an extinguishment of an antecedent debt. Cited 1 Salk. 29/
    
      
      (1) In Cook vs. Bradley, 7 Conn. Rep. 57, it was held, that a mere moral obligation is not available as a consideration for an express promise; it is only effectual in those cases where there was a previous legal obligation. See Smith vs. Ware, 13 Johns. Rep. 257 ; Mills vs. Wyman, 3 Pick. 207; Edwards et ux. vs. Davis, 16 J. Rep. 281-3, (note.)
    
   Curia, per

Butler, J.

It is necessary to state, with some precision, that state of facts that has been established by the jury, before I advert to the legal proposition involved in this case, and upon which the judgment of the court will be mainly made to turn. As there is no finding for the plaintiff, for any part of his demand, we must conclude that the whole amount of the demand sued for was contracted by the husband of the defendant, in his life time. But for such finding, it might be questionable whether so much of it as amounted to twenty dollars, had not been contracted by the defendant herself, since her husband’s death. This question being settled by the verdicl, the next fact of importance is, that at the time of his death, the husband was a hopeless and intemperate pauper, having nothing then, or any thing which could, at a subsequent period, go into the hands of his administrator, to which creditors might resort for the payment of any part of their debts; for, what might have fallen to him, by the death of others in his life time, would, after his death, be transmitted directly to his distributees. We must also conclude from the verdict, what I suppose was the fact, that the plaintiff had taken the note of the defendant in payment and discharge of the demand which he held against her insolvent husband.

The following question, then, arises: is the Surviving widow of a pauper under any enforcible obligation to pay a promissory note given by her, shortly after her husband’s death, to one of his creditors, for a demand which had been contracted in his life time, in consideration that such demand should be discharged against the estate of the husband, by virtue of her undertaking to pay it % This question depends on another, and that is, was there a sufficient consideration, of which the law can take notice, to support the promise and undertaking of the defendant'? Some good or valuable consideration is essential to support all contracts ; and in general, where the party promising is to receive a benefit; or where the party to whom the promise is made, is subjected to detriment and prejudice, or is delayed and hindered in enforcing his rights, by the undertaking of the promisor, such undertaking will have a sufficient consideration to support it. We must therefore look to a benefit to the one, or an injury to the other, for the foundation of the consideration. This general principle of law cannot now be well disputed, that an undertaking to pay the debt of another, on condition that that other shall be entirely discharged from liability, is founded on a sufficient consideration, upon the ground that the promisor, in such case, has become an original debtor, on the discharge of the former debt, which is supposed to deprive the promisee of some previous advantage, or to subject him to some prejudice and delay in realizing it.

Comyn, in his Treatise on Contracts, thus states the rule : “ If it be a part of the agreement that the original debt be discharged, that is a sufficient consideration to support the undertaking of another to pay the debt: and the agreement need not be in writing ;” and that for the obvious reason, as Judge Nott observes, in the case of Boyce vs. Owens, 2 McCord, 208, “that the original debt being extinguished, it is no longer an undertaking to pay the debt -of another, because there is no such debt existing, but it is the newly created debt of the undertaker.”

These views are fully recognized by Earle, J., and are made the foundation of his judgment in the case of Corbet vs. Cochran, Riley’s Law Cases, 44. That case has been almost entirely relied on to support the grounds of this appeal. And if the case under consideration cannot be distinguished from it, it must be controlled by that decision. The case of Corbet vs. Cochran seems to have been this: Mrs. Pelot being indebted to the plaintiff, in the sum of $407, on a book account for merchandize, and the account being presented to her for payment, the defendant came to the plaintiff, produced the account, and assumed to pay it, in consideration that she should be discharged from the debt. Her account was accordingly credited in full, and the account was charged to the defendant, by his own direction. It was here held that the discharge of Mrs. Pelot’s debt was a sufficient consideration for defendant’s undertaking. The Judge remarks, “ the consideration to support an agreement need not, of necessity, be a pecuniary one, or even a beneficial one, to the person promising. If it be a loss, or even an inconvenience to the promisee, as the relinquishment of a right, or the postponement of a remedy, it will be enough.” This would go to shew, that as between the promisor and promisee in such cases, there must be some consideration , as between the person promised for, and the person promising, there need be no consideration moving. This being absolutely essential as between the promisor and promisee, and where, therefore, there is no consideration moving between them, I can see no reason why the undertaking to pay a sum of money shall not be regarded as nudum pactum.

In the case quoted, the demand against Mrs. Pelot may or may not have been available at the time. How that fact was, does not appear from the report. But it is certain that she was then alive ; and it does not follow that, although she might not then have been able to pay the debt, she would never be in a situation to pay it. The debt was not altogether worthless, so long as she might be alive ; for, during that time, she was capable of acquiring property that could be made subject to the operation of a. judgment against her on her property, should she leave any at her death. This mere right of the plaintiff, contingent and uncertain, let it be said, was something which he might not choose to forego and relinquish altogether, without an equivalent. When he discharged and relinquished it, therefore, he. gave up something that might be of value to him. He was, in this way, by the undertaking of the defendant, placed in a different situation from what he had previously occupied, and was thereby hindered in the demand of a right, and postponed in the enforcement of a remedy, which we have seen would be a sufficient consideration. Let these principles be applied to the case before the court. It cannot be pretended that the defendant derived any benefit from her incurring a liability to pay $300, from which she was entirely exempt before she gave her note. It was not urged that she gave her note to relieve herself from any legal obligation. Place it in the most favorable point of view, it was a voluntary undertaking on her part to pay a debt for which she was not liable, and for the collection of which the plaintiff had no possible legal remedy. ’And the question recurs, did the plaintiff give up any right that was worth any thing, or suffer any loss by discharging a demand against a deceased pauper'? It seems to me it was no more than discharging a debt against a fictitious person, against whom it might have been charged, by way of exercise, in a book kept for the purpose of learning the art of book-keeping. The demand was utterly unavailable, and not worth the ink and paper employed in perpetuating it. The defendant’s undertaking must therefore be regarded as voluntary, and without benefit, so far as she was concerned, and one which subjected the plaintiff to no possible loss or detriment; and being thus without consideration, must be regarded as nudum pactum and void.

The principles here laid down should be guarded with great caution, and should be only applicable in cases whei’e it can be demonstrated that the promissor has received no benefit, and the promissee has suffered no possible injury.

There is no ground taken in the appeal, that the undertaking of the defendant could be supported on the ground of moral obligation, although much was said by the counsel on both sides, about the morality and justice of the case. There are cases in which eminent Judges have said that a moral obligation will be a suffieienct consideration to support an express promise to pay money. The abs.tract position thus laid down has been, in general, controlled by a state of facts that would resolve it into a question more resembling one of legal justice than moral obligation, founded in conscience and piety. Adopting Chancellor Harper’s remark, in the case of McMorris vs. Herndon: “ 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.” And if this come to be the inquiry, where is the obligation of justice requiring a wife to pay a demand contracted by a husband, for the means of increasing and confirming him in his habits of ruinous intemperance, and by which she and her children may have been reduced to poverty. Be that as it may, we have not the means of ascertaining the true state of facts indicating her obligation to discharge or repudiate her undertaking by the note in suit.

It may have been extorted from defendant, under some mistaken understanding of her liabilities, or from still more mistaken notions of gratitude for supposed favors. On the contrary, I will not undertake to say that the plaintiff may not have been actuated by good motives, or that he may not have afforded to the defendant and her children the necessary means of support. This is a matter that cannot be very well reached by any thing like the certainty of legal justice, and must be left to the conscience of the parties.

Taking the case as we find it, we are satisfied with the verdict, and therefore refuse the motion for a new trial.

O’Neall, Evans and Wardlaw, JJ. concurred.

Richardson, J.

I dissent, on the following grounds. In the case of Corbet vs. Cochran, it is decided that if A assume verbally to pay the account of O, due to B, upon B’s discharging C, the undertaking of A is binding, and C being so discharged, A becomes debtor in his place.

This is the case before us, but with this confirmation,, that A (Scott) gave his note to B, (Ferrell) and B gave a receipt in full to C, (Scott.) All that could render the case of Corbet vs. Cochran questionable, the written assumption of A, and the written discharge of C, is here supplied.

But C (the deceased Scott,) was dead, and died a pauper. Can this make the law of the case different ? It cannot. And even if it did so at common law, as in the case of Corbet vs. Cochran, it could not affect a case of a written assumption to pay the debt of a third person, under the statute of frauds.

In such cases, the release of B’s action, and of his right as creditor, to administer on the estate of C, is a sufficient consideration, and there can be no difference on account of the solvency or insolvency of C. (See 1 Bos. & Pul. 124, Corbet vs. Cochran, Riley’s Law Cases, 44.) Many such guaranties are given for-insolvents. He that gives such a guaranty of debt, purchases off the legal right of the creditor to sue, puts himself in place of the debtor, by a fair substitution, and may as well plead his own insolvency, as that of the original debtor, in discharge of his guaranty.  